text:
    Atlantic City Railroad Company v. Alfred Johanson et al.
    [Decided January 16th, 1907.]
    1. This court will enjoin the execution of a judgment at law, rendered in an action of ejectment, when it appears that the defendant in the legal action had an equitable estate in the loous in quo which was sufficient to afford him equitable protection against dispossession at the instance of the plaintiff and the existence of which equitable estate afforded no defence in the court of law.
    2. Where the defendant in ejectment purchased the locus in quo by parol agreement from the predecessor in title of the plaintiff and paid the full consideration of the purchase and entered into possession by consent of the vendor, the statute of frauds is not a bar to the existence of an equitable estate in the purchaser. A subsequent purchase of the land from the record owner by the plaintiff in ejectment, at a time when the defendant in ejectment was in visible possession under his prior purchase, is with constructive notice of the equitable estate of the defendant and constitutes the subsequent purchaser a trustee of the legal estate for the benefit of the prior purchaser. As such trustee the subsequent purchaser can maintain an action of ejectment against his cestui que trust, and the latter can only defeat recovery in a court of equity.
    3. The fact that the loous in quo was a highway, and that the possession of defendant consisted of the occupancy of the highway with a steam railway, does not militate against the application of the principles defined.

      On order to show cause why a preliminary injunction should not issue. Heard cn bill, answer and affidavits.
    Alfred Johanson and wife, two of the present defendants, are in possession of and claim to own certain lots of land on the north side of Salem street, between Burlington street and Broadway, Gloucester, and claim to own the fee of Salem street, in front of the lots, to the centre line of that street, subject alónete the servitude occasioned by the public highway. Complainant is a railway corporation, and the line of its railway is located in part on that part of the street between the lots of Johanson and wife and the centre line of the street. An action of ejectment was brought by the Johansons against complainant, in the supreme court of this state, to enforce the removal of complainant’s railway from that part of the street referred to. Judgment was rendered in their favor and the judgment was afterwardsaffirmed by the court of errors and appeals. 61¡. Atl. Rep. 1061. The writ of ejectment is now in the hands of the sheriff of Camden county for execution. Complainant now seeks to enjoin the execution of that writ.

      Mr. William T. Read and Mr. Charles V. D. Joline, for the complainant.

      Mr. Francis D. Weaver and Messrs. Bleakly •& Stoclcwell, for the defendants.
   Leaking, Y. C.

This cause, as I view it, presents but a single question: Has-complainant an estate in the locus in quo which will entitle it to-the protection of a court of equity and of which it could not have availed itself as a defence in the action of ejectment.

Complainant asserts that, in the year 1875, the Gloucester Land Company was the owner of a large tract of land comprising the premises in dispute, and was also the owner of important manufacturing interests in that vicinity, and by reason of such ownership was desirous of having the railway in question pass over the route now in dispute for the purpose of enhancing the value of its lands and manufacturing interests, and to that end requested complainant to abandon a more direct and less expensive route, which had been adopted, and to adopt the route desired by the land company, and agreed with complainant that if complainant would do so the land company would not charge for the land to be occupied and would convey the same to the complainant, and that complainant accordingly agreed with the land company to that effect and changed its route and constructed its road over the lands of the land company pursuant to that agreement (including the part of the route nou^ in dispute) at a greatly increased cost to complainant, and that since that year (1875) complainant has been continuously operating its road over that route, but that the land company has never delivered the deed as agreed. No written agreement or memoranda was executed.

The pleadings admit that in the year 1886 the Gloucester Land Company conveyed the lots now owned by defendants to Esther E. Gibbon, by deed describing the lots as abutting on Salem street, and that in the year 1903 Esther E. Gibbon conveyed, by a similar description, to defendants.

If these allegations of the bill are to be at this time accepted as facts, complainant’s position is that of a purchaser of lands, by parol agreement, with possession delivered by consent of the vendor, and with the agreed consideration of the purchase paid. The allegations of the bill fully cover these elements. The contemplated benefits to be received by the land company accrued to it by the location of the road as agreed, and the increased expenditures have been incurred by complainant as a consideration for the promised grant of the land occupied. The statute of frauds is not a bar to the existence of an equitable estate in the purchaser of lands under these conditions, for the contract has been fully performed upon the part of both parties except as to the delivery of the deed. Young v. Young, 45 N. J. Eq. (18 Stew.) 27, 34. The executed agreement, before delivery of the deed, constitutes the purchaser the owner of the equitable title to the lands, and the vendor holds the legal title as trustee for the purchaser. Courts of equity deal with these equitable interests as vested equitable estates in land. Before the contract is executed by conveyance the lands are devisable by the vendee, and descendible to the heirs as real estate, and the personal representatives of the vendor are entitled to any unpaid purchase-money. A purchaser from the vendor trustee, with notice of the trust, stands in the place of his vendor, and is as much a trustee as he was. Haughwout v. Murphy, 22 N. J. Eq. (7 C. E. Gr.) 531, 546; Brinton v. Scull, 55 N. J. Eq. (10 Dick.) 747, 756.

Under the facts stated defendants must be regarded as purchasers with notice of the rights of complainant, as already defined. At the date of the conveyance from the land company to Gibbon, complainant had been in actual occupancy of the land for over ten years, and at the date of the conveyance from Gibbon to defendants for over twenty-five years. This visible possession of complainant operated to put defendants upon inquiry as to the rights under which complainant held possession. Baldwin v. Johnson, 1 N. J. Eq. (Sax.) 441, 455; Dean v. Anderson, 34 N. J. Eq. (7 Stew.) 496, 505; Hodge’s Executors v. Amerman, 40 N. J. Eq. (13 Stew.) 99; DeLuze v. Bradbury, 25 N. J. Eq. (10 C. E. Gr.) 70; Atlantic City v. New Auditorium Pier Co., 63 N. J. Eq. (18 Dick.) 644, 668; S. C. reversed, 67 N. J. Eq. (1 Robb.) 610, 617.

An equitable estate of the character named is not available as a defence to an action of ejectment by the owner of the legal title. A trustee may 'recover in ejectment from his cestui que trust; the latter can make no defence at law, but must seek his remedy in equity. Commissioners v. Johnson, 36 N. J. Eq. (9 Stew.) 211, 212; Nibert v. Baghurst, 47 N. J. Eq. (2 Dick.) 201, 204; Roe v. Reade, 8 T. R. 122, 123; Shine v. Gough, 1 Ball & B. 436, 445.

It follows that complainant’s bill is well founded unless another feature, not yet referred to, operates to defeat the equitable estate already defined. It must be, at this time, accepted as a fact that in the year 1875, when complainant contracted with the land company, the locus in quo was a public highway. The affidavits filed on behalf of defendants render it impossible, under the well-defined rules touching hearings for preliminary injunctions, to proceed upon any different assumption of fact. It follows that the contract of the land company was to convey to complainant the fee in a public highway (at a time when the land company was the owner of the abutting property and owner of the fee of the highway subject to the .public servitude), to enable complainant to construct and operate its railway longitudinally on the highway. I am unable to perceive that this fact operates to defeat complainant’s right to assert its equitable title in this court for relief against the action of ejectment at law brought by defendants. While the operation of a steam railway longitudinally on a public highway is inconsistent with the use with which the land is burdened as a highway, and cannot be justified except by legislative authority (Burlington v. Pennsylvania Railroad Co., 56 N. J. Eq. (11 Dick.) 259; 58 N. J. Eq. (13 Dick.) 547), yet the right of the abutting owner to maintain ejectment for its removal is necessarily based upon the fact that he is owner of the fee in the highway subject only to the public servitude, and is in no way based upon his right, as a member of the public, to remove the railway as a public nuisance. Bork v. United New Jersey Railroad and Canal Co., 70 N. J. Law (41 Vr.) 268. It follows that if the equitable title to the fee in the highway in question passed to complainant from the predecessor in title of defendants, and defendants purchased with notice of such equitable title, equity should not permit an action at law which is wholly based upon the legal title and which action cannot take the equitable title into consideration, to dispossess complainant, until complainant shall have been privileged to assert his equitable title in this court as a bar to the possessory action. I know of no principle of law or policy which forbids the segregation of the fee of the highway from the abutting properties. A conveyance of land abutting on a highway embraces the fee to the centre of the highway only when a contrary intent is not expressed in the deed. Salter v. Jonas, 39 N. J. Law (10 Vr.) 469. I do not find Atlantic City v. New Auditorium Pier Co., as reported in 67 N. J. Eq. (1 Robb.) 610, to militate against the view here taken that defendants were purchasers under conditions which charged them with the duty of making inquiry which should have resulted in the discovery of complainant’s equitable estate in that part of the premises which defendants were purchasing which was occupied by the highway. In the decision referred to the view is forcefully expressed that nothing referable to the then existing phj'sical conditions could have naturally suggested a covenant contemplating that the land and view below high-water mark of the ocean should remain unobstructed; that the absence of structures there was not naturally referable to restrictive covenants. The present case presents radically different conditions. The purchase which was being made by defendants included the land extending to the centre line of the highway, and I am unable to perceive how one can thus purchase property abutting upon a highway in which a steam railway is being longitudinally operated without being apprised of a probable right upon the part of the railway company emanating from a predecessor in title of the land in question. The purchaser could not properly attribute the occupancy to mere legislative permission,' for such permission could not confer the right of occupancy until a corresponding right should have first been acquired from the owner of the fee.

The change of complainant’s railway from a narrow-gauge to a broad-gauge road, in the year 1885, with a possible widening of the strip of' ground actually occupied, cannot be held to operate to defeat complainant’s present remedy. It is not clear that the additional ground which may have been occupied by the road by reason of this change of gauge was not covered by the spirit of the original agreement, and the deed from the land company to Gibbon was subsequent to this change. If, in this change of gauge, ties were lengthened beyond the length contemplated by the original agreement to convey, that fact is only important pro tanto. The writ sought to be enjoined runs against the entire structure.

It has been urged that the denial, in the answer, of the fact that the original agreement on which the bill is based was ever made, should operate to defeat the application for a preliminary injunction. The evidence of the original agreement, as disclosed by the bill and its accompanying affidavits, is not as satisfactory as might be desired. While I have not been entirely free from doubt as to its sufficiency, I have determined to accept it as competent to establish the facts averred. 'The effort on the part of defendants to negative these averments is wholly without probative force, as no positive knowledge is disclosed or claimed in the denials made. Under these circumstances the averments of the bill should not be treated as overthrown.

A preliminary injunction, in accordance with the prayer of the bill, will be advised.


source: Caselaw Access Project

author: Leamtng, V. C.

license: Public Domain

text:
    William H. Flattau v. Annie E. Logan and Patrick J. Logan.
    [Decided January 19th, 1907.]
    A court of equity will not decree the specific performance by vendor of a contract for the sale of land when the vendor is not the owner of the equitable title of the land which he has agreed to convey.
    On motion to strike out bill.
    Complainant, as vendee, seeks specific performance, from his vendor, of a contract for the- sale of certain lands in the city of Long Branch. Defendants move against the bill of complaint, pursuant to rule 213 of this court, upon the ground that the facts set forth in the bill disclose a contract upon the part of the vendor to convey lands of which he is not the owner, as well as a contract in which there is an absence of mutuality of obligation and which a court of equity will not, in consequence, enforce by its decree. The bill avers the execution of a contract in writing between the parties wherein defendants agreed to sell, .-and complainant to purchase, certain lands for a price and at a time named in the contract, free from all encumbrances or liens (except a certain mortgage which complainant agreed to assume), and that complainant made the first payment according to the terms of the contract and tendered the balance at the time named in the contract; and that defendants have failed to perform their agreement and claim that they cannot make a deed to the land free from encumbrances and liens because of the existence of a prior agreement, made by them and recorded prior to the agreement with complainant, wherein they agreed to convey the same land to another person; and also because of the pendency of certain condemnation proceedings in the supreme court for the appropriation of the land in question, in which cause a Us pendens was filed and recorded prior to the execution of the agreement with complainant. The bill avers the existence of the prior agreement and its record and the Us pendens and its record as prior in date to the agreement sought to be enforced, and prays that defendants may be decreed to convey the land in question to complainant freed and discharged of these liens and encumbrance.

      Mr. -John W. Slocum, for the complainant.

      Mr. J. Fithian Tatem, for the defendants.
   Leamtng, V. C.

It seems manifest that a decree of specific performance cannot properly be made in this case. If the prior recorded agreement for the sale of the land in question is a valid and subsisting agreement, and the bill does not suggest to the contrary, the equitable title to the lands has passed from defendants and they cannot be regarded as the owners of the lands which the bill seeks to compel them to convey to complainant. The pendency of the condemnation proceedings, in like manner, renders it impossible for defendants to convey the land to complainant in the manner agreed. It has been repeatedly held by this court that it will not decree the specific performance by a vendor of a contract for the sale of land where the vendor is not the owner of the land which he has agreed to convey. The inability of tho court to enforce such a decree is alone a sufficient ground for its refusal to act in such cases. Welsh v. Bayaud, 21 N. J. Eq. (6 C. E. Gr.) 186; Peeler v. Levy, 26 N. J. Eq. (11 C. E. Gr.) 330; Ten Eyck v. Manning, 52 N. J. Eq. (7 Dick.) 47; Hopper v. Hopper, 16 N. J. Eq. (1 C. E. Gr.) 147, 149.

It is frequently said, in cases of this class, that inasmuch as the vendee cannot enforce specific performance against his vendor, who is without title, such a vendor will not be permitted to enforce the contract against his vendee. Contracts of this-class are therefore frequently regarded as without that mutuality of obligation and remedy which should exist to entitle them to be specifically enforced at the instance of either party. Ten. Eyck v. Manning, supra.

I find the motion of defendants to be well founded and will advise a decree dismissing the bill.


author: Leaming, V. C.

text:
    Charles H. Jeffreys et al. v. Selina A. Charlton et al.
    [Submitted January 23d, 1907.
    Decided January 25th, 1907.]
    1. There is no legal objection to an absolute conveyance of land and' a simultaneous agreement by vendee to reconvey the land to vendor upon terms agreed upon. .But equity is privileged to inquire beneath the external forms and to ascertain whether or not, in view of all the circumstances disclosed, tlie transaction was an absolute sale, or whether the-conveyance was in fact intended as a security for the payment of the-money specified in the agreement for reconveyance.
    2. In the determination of the intention of the parties in such transactions, the fact that no obligation existed upon the part of vendor to pay the amount fixed as the price for reconveyance, is almost wholly inconsistent with the idea that the transaction was intended as a mortgage security. The fact that the amount paid by vendee was practically the entire value of the property is also inconsistent with the idea that a mortgage security was intended.

      3. Where, in such case, the agreement for reconveyance was in form and intent an option agreement wherein vendee extended to vendor the ■option to purchase within a specified time upon specified terms, such option must be complied with by the payment or tender of payment of the amount specified within the time named, or all rights under the ■option will be lost.
    4. The fact that the conveyance was made by vendor at a time when ■the property was about to be sold under process of execution, and that the conveyance was made with a view that vendee should purchase the property at the approaching judicial sale at a price named and should extend to vendor the option of repurchase at that price, in no way enlarges the rights of vendor, where it appears from all the circumstances of the case that the transaction was intended by the parties as a sale and an option of repurchase, and not as a security for the repayment of the expenditures to be made by the vendee.
    On bill and cross-bill.
    The bill is filed by complainants as executor and devisees of Lewis E. Jeffreys to remove a cloud from the title to certain real estate, which cloud consists of an outstanding agreement dated ■July 3d, 1903, wherein complainants’ testator agreed to extend to cross-complainant an option of purchase of the land, upon the terms specified in the agreement, for a period of two years from the date of the agreement. Defendant, by way of cross-bill, claims that under the agreement in question she is entitled at this time to an ascertainment of the money due to complainants under the terms of the agreement, and to a conveyance to her by complainants of the land in question upon the payment by her of the amount so ascertained. The agreement in question is an instrument wherein cross-complainant conveyed to complainants’ testator certain real estate, and complainants’ testator, in the same instrument, extended to cross-complainant an option of purchase, upon the terms stated, for a period of two years from the date of the agreement.

      Messrs. Bourgeois & Booy, for the complainants.

      Mr. Harry W. Leviis, for the defendants.
   Leaming, V. C.

The primary question for determination is whether the transaction in question was operative as a mortgage from cross-complainant to complainants’ testator, or whether it was operative as an absolute sale from cross-complainant to complainants’ testator, with only an option of repurchase preserved to cross-complainant. If the former, cross-complainant’s equity of redemption must be preserved to her; if the latter, cross-complainant was obliged to comply with the terms of the option within the period specified.

That part of the agreement wherein the right to repurchase is granted to cross-complainant is, in form, strictly an option, and if the language of the instrument is to be taken as the sole criterion to determine the rights between the parties, there is no equity of redemption preserved to cross-complainant in the event of her failure to comply with the terms of the option; but equity is privileged to inquire beneath the external forms in determining questions of this nature, and the controlling inquiry is whether or not, in view of all the circumstances disclosed, the transaction was an absolute sale, or whether the conveyance to complainants’ testator was intended as a security to him for the repayment of the money set forth in the terms of the option. The determination of this question must, to a large extent, depend upon the circumstances of the individual case, for the question necessarily turns, in all such cases, upon the real intention of the parties as shown upon the face of the writings, or as disclosed by extrinsic evidence. Where a doubt exists the tendency of the courts, from motives of policy, has generally been in favor of treating the transaction as a mortgage security. In the present case death has intervened to deny to the court the benefit of the testimony of the parties to the transaction touching much that transpired at the time of the execution of the agreement, but sufficient evidence has been produced to disclose, with great fullness, the situation of the parties at the time and the purposes sought to be accomplished by the agreement made.

The property in question, at the time of the agreement, was about to be sold under decree of foreclosure, and the conveyance in question was made to complainants’ testator with the view that he should purchase the property at the foreclosure sale and bind himself to convey the property to cross-complainant, providing cross-complainant should, within two years, pay to complainants’ testator for the property the amount specified in the option. At the date of the agreement there was no indebtedness from cross-complainant to complainants’ testator to be secured by this transaction. The agreement executed between the parties in no way bound cross-complainant to pay to complainants’ testator the amount specified in the option. When, in a transaction of this nature, there is no obligation cast upon vendor to pay.the amount fixed upon as the price for reconveyance, the conditions are almost wholly inconsistent with the idea of a mortgage security or a pledge to secure a debt. Professor Pomcroy (Pom. Eq. Jur. § 1195) says: “If no such relation whatsoever of debtor and creditor is left subsisting, then the transaction is not a mortgage, but a sale and contract of repurchase.” In the note to the text it is said: “The practical test is whether there is a liability, notwithstanding or independent of the conveyance and contract of reconveyance, which the grantee can enforce against the grantor.” In De Camp v. Crane, 19 N. J. Eq. (4 C. E. Gr.) 166, 171, Chancellor Zabriskie says: “I admit the force of the position, so ably urged by counsel for the defendants, that when the question is whether the transaction constitutes a mortgage, or is a sale with an agreement to reconvey, the fact whether there is a continued debt or liability of the mortgagor is very important. It is difficult to conceive of a mortgage, which in its very essence is a pledge as security for a debt, without someone being liable for the debt. But I am not willing to say that there can be no mortgage without a debt, or someone being bound, at all events, to pay the money. A mortgage may be expressly made in that manner.”

I am impressed, however^ that where the transaction, in order to be treated as a mortgage security, must be so treated solely as the result of inferences drawn from existing circumstances contrary to the express stipulation of the parties, such inference cannot be logically indulged in the absence of an obligation upon the part of the vendor to pay. It is contended upon the part of cross-complainant that the agreement in question coiitemplates a payment by cross-complainant of deficiencies arising from rentals; bnt I understand the language of the agreement, taken together, to mean that cross-complainant must make such payments to preserve the existence of her option during the two years, or otherwise lose it. I do not find in the agreement or transaction any stipulation or element upon which complainants'' testator could base a claim against cross-complainant for the .repayment of any part of the money which he expended in this transaction.

Another criterion helpful in the determination of the true spirit of a transaction of this nature is the relationship between the money paid and the value of the property. In the present case the evidence satisfies me that the expenditures made by complainants’ testator were practically the full value of the property in question, or if not the full value, then so nearly the full value as to negative any suggestion of a loan on mortgage security. There is no legal objection to a transaction of the nature which this transaction assumed. Cross-complainant could lawfully convey her equity of redemption and could simultaneously receive from her vendee an option of purchase upon specified terms, and if the transaction was, in spirit and intent, what it purported to be on the face of the papers executed, then cross-complainant’s equity of redemption in the premises was lost, and a title to the premises could only be acquired by her through a compliance with the terms of the option agreement. Wallace v. Johnstone, 129 U. S. 58, 65; Slutz v. Desenberg, 28 Ohio St. 371; see, also, Pom. Eq. Jur. § 1194, note 1, note “a.”

In Merritt v. Brown, 21 N. J. Eq. (6 C. E. Gr.) 401, 405, the court of errors and appeals treated a transaction somewhat of .this nature as one wherein the right of redemption would not be lost through failure upon the part of the vendor to pay on a day specified, but the view there taken was the result of a conclusion reached from testimony showing that to have been the intention of the parties.

My conclusion is that the instrument in question must be treated as correctly disclosing the true intention of the parties, and that the only right reserved to cross-complainant under that agreement was an option of purchase, and that her rights in the premises in controversy were lost unless she complied with the conditions of that agreement.

It is claimed upon the part of cross-complainant that she did comply, or offered to comply, with the provisions of the option agreement. If the failure upon the part of cross-complainant to pay to complainants’ testator the money due to him occurred by reason of an honest difference between them as to the amount with which cross-complainant was properly chargeable under that agreement, such difference would undoubtedly excuse the non-performance within the time specified; but the evidence fails to convince me that such was the fact. The testimony of Mr. Wootton, who visited complainants’ testator in behalf of cross-complainant, is to the effect that complainants’ testator claimed, at that date, $3,552.72 as due to him. The testimony of the widow of complainants’ testator, which testimony is not questioned by Mr. Wootton, is to the effect that in arriving at the amount due to complainants’ testator, his books and accounts were fully examined to ascertain the exact figures. There is no testimony showing that a protest was made, or that any dispute arose touching the amount claimed by complainants’ testator. I am compelled to conclude that the failure of cross-complainant to comply with the terms of the option agreement was due to her neglect or inability to raise the money necessary for that purpose.

The cross-bill of defendant is for specific performance. The relief appropriately sought, under the claim now made by cross-complainant, would be that of a decree for the redemption of the property and for an accounting to ascertain the amount due. I have, however, treated the cross-bill as sufficient, under the prayer for general relief, to afford cross-complainant any relief which she might be entitled to in the premises. A decree will be advised for complainants.


author: Beaming, V. C.

text:
    Atlantic City Gas and Water Company v. Consumers Gas and Fuel Company et al.
    [Submitted January 15th, 1907.
    Decided January 23d, 1907.]
    On bill for injunction.

      Mr. Clarence L. Cole and Mr. Robert H. McCarter, attorney-general, for the complainant.

      Mr. John C. Reed, Mr. George A. Bourgeois and Mr. Charles L. Corbin, for the defendants.
   Beaming, V. C.

By stipulation, filed January 15th, 1907, this cause has been submitted, on final hearing, upon the testimony taken before Vice-Chancellor Bergen on the motion for a preliminary injunction.

I concur in the views expressed by the learned vice-chancellor in his opinion filed September 9th, 1905, and reported in 70 N. J. Eq. (4 Robb.) 536, and will advise a final decree dismissing the bill of complaint.


author: Leabiing, V. C.

text:
    The Township of Landis v. Millville Gas Light Company.
    [Decided January 19th, 1907.]
    1. A township may, by bill in equity, prevent the use of its highways by a gas company which is engaged'in the act of laying gas pipes in such highways without legislative authority.
    2. The relief granted to the township in such case may also prevent the use of the gas pipe already wrongfully laid in the highways of the township, when the pipe so laid has not been connected with buildings or brought into use.
    3. The propriety of a resolution of a township committee authorizing the filing of a bill to restrain the use of its highways is a legislative and not a judicial question, and the exercise of such legislative discretion by the township committee will not be interfered with by this court in the absence of manifest fraud.
    4. Defendant company held to be without legislative authority to occupy the highways of complainant township for the purpose of laying gas pipes therein.
    On bill for injunction.
    The bill is filed by the township of Landis to enjoin defendant company from laying its gas pipes in the highways of that township. Defendant claims the right under its charter act. P. L. 1857 di. 16k• The cause has been heard on bill and answering affidavits at the return of an order to show cause for a preliminary injunction.

      Mr. Royal P. Fuller and Messrs. French & Richards, for the complainant.

      Mr. Louis H. Miller and Messrs. Gashill '& GasTcill, for the defendant.
   Leabiing, V. C.

In Millville Gas Light Co. v. Vineland Light and Power Co., ante p. 305, the provisions of defendant’s charter are quoted and considered at some length. Defendant’s charter act granted to it the right to lay gas pipes in the streets of the “town of Millville and its vicinity.” Millville was then (1857) an unincorporated village in the township of Millville, and the boundaries of the township of Millville at that time included the territory no.w comprising the township of Landis. In the opinion referred to the view is entertained that the language “the town of Millville and its vicinity,” refers to the village of Millville and its vicinity, and not to the township of Millville and its vicinity. The view is also therein expressed that without something to show that the expression “Millville and vicinity” was intended to include more territory than would naturally be impoited by that expression, the language could not properly be understood to include the entire township of Millville as it then existed. I still entertain the views expressed in that opinion, and I find nothing in the record in the present case to indicate a different legislative intent in the use of the language. Hpon the record before me I feel obliged to hold that the rights conferred upon defendant company in the act of 1857 related to the territory then comprising the village of Millville and its immediate vicinity. In Madison v. Morristown Gas Light Co., 65 N. J. Eq. (20 Dick.) 356, 358, similar language similarly used is commented upon as follows:

“Vicinity, as used in the statute, applies only to the streets, lanes, alleys and public places adjoining the village of Morris-town. * * * The act of incorporation of defendant company is not difficult of construction. Its language construes itself. The company is incorporated to supply gas Tor the purpose of lighting the streets, buildings, manufactories and other places situated in Morristown and its vicinity.’ Every building or other place in Morristown may be lighted. Buildings in the vicinity of Morristown may also be lighted. The intent was to give the defendant the right to lay gas pipes and light Morris-town and the buildings or factories lying in its vicinity—that is, adjoining Morristown.”

The views expressed in the opinion quoted must, -in the absence of distinguishing features, be accepted by this court as an authoritative declaration of the true significance of the language used in the act. It is unnecessary to here consider whether the word “vicinity” included all the territory now comprising the city of Millville, as that territory is not in dispute in this cause j but I am entirely clear that the word “vicinity,” given the import already defined, cannot, in view of the physical conditions disclosed by the record, be reasonably treated as including any territory now embraced within the boundaries of the township of Landis. In 1857 the territory between the outskirts of the village of Millville and the point where the present boundary line of the township is located, a distance of one and one-half or two miles, was an outlying country district and unoccupied by any buildings except a few farm-houses, and substantially the same conditions appear to have existed in 1864 when the township of Landis was set off from the township of Millville. The territory now in dispute, extending from the boundary line northward toward the present borough of Vineland, was of substantially the same character. It would clearly be doing violence to the-views expressed by the court of errors and appeals, above quoted,, to hold that any part of this territory now in the township of Landis was contemplated by the language of the legislative grant, in question, in view of the physical conditions then existing as. disclosed by the present record. It follows that defendant must, at this time, be treated as without legislative authority to occupy the highways of the township of Landis for the purpose of. operating its gas plant.

It is also urged, on behalf of defendant, that this court cannot properly forbid the use of that portion of the gas pipe which, had already been laid in the township of Landis when the restraining order in this cause issued. The application for a. mandatory writ compelling the removal of the pipe, already in place, will not be entertained before final hearing; but the conclusion already reached to the effect that defendant is without, authority to occupy the highway in question with gas pipes, if sound, manifestly justifies this court in restraining defendant from taking the pipe into use as a part of its system. At present. the pipe merely occupies the highway at a place where the township is authorized to permit another company to occupy it. Should the pipe be now brought into use as a part of the system of defendant company and operated to supply gas to consumers along the line of the highway, the privilege enjoyed by the township to treat with or induce another company to occupy the highway for a similar purpose would be materially alfected.

Defendant also urges that the record discloses that the present bill is not filed by the township in good faith, but that the bill is essentially one at the relation of an opposition company. I am unable to reach this conclusion. The propriety of the resolution authorizing the filing of the present bill is a legislative and not a judicial question, and the exercise of legislative discretion cannot be interfered with by this court in the absence of manifest fraud.

I will advise a preliminary injunction covering the scope of the present restraining order.


author: Magie, Ordinary.

text:
    In the matter of the estate of Winifred Godfrey.
    [Argued October 16th, 1906.
    Decided November 23d, 1906.]
    1. When an application is made to an orphans court for an order directing an administrator to sell lands of his intestate for the payment of debts, on the ground that the personal estate is insufficient, under the provisions of sections 82 to 90 of the Orphans Court act of 1898, and upon the return of the rule to show cause issued thereon it appears that the personal and real estate of intestate are, and are known to the administrator to be, together insufficient to satisfy the debts claimed— Held, that the orphans court may decline to make the order of sale, because the application should have been made under sections 99 to 110 of the act, the estate being insolvent under those sections.

      2. The proofs before the orphans court justified the inference that the administrator, in making the application under section 82 et seq., instead of under section 99 et seq., acted in bad faith.—Held further, that the orphans court may decline to make the order of sale on that ground.
    On appeal from Hudson county orphans court.

      Mr. Edward Kenny, for the appellant.

      Mr. James A. Gordon, for the respondent.
   Magie, Ordinary.

The appeal brings into review an order of the Hudson county orphans court, refusing to make an order for the sale of lands of Winifred Godfrey, deceased, by her administrator, for the payment of her debts.

The matter was first argued by briefs filed at February Term last. Upon taking up the papers for consideration, I found that the transcript did not disclose the ground on which the order objected to had been made. I therefore directed a reargument, in the hope that the opinion of the orphans -court would be obtained and furnished me. It has now been reargued, but no opinion of that court is before me. I am therefore compelled to conjecture upon what ground the order was made.

The conduct of the case in the orphans court, as disclosed by the transcript sent up, was somewhat unusual. It thereby appears that, on July 8th, 1894-, the administrator presented to the orphans court a petition for the sale of the lands in question, accompanied by a statement of the personal estate of the deceased and of the debts of deceased. The statement, which was sworn to by the administrator, showed that she left no personal estate, and that her debts for doctor’s and undertaker’s bills and other small items amounted to $267.90, and that a claim of Catharine M. Godfrey had been made against the estate of deceased for $3,598. Upon this petition a- rule to show cause was made and brought to hearing on September 23d, 1904. The administrator was then sworn, and on his evidence it was clear that deceased had left personal estate amounting to over $400, and that his affidavit to his statement was untrue. Thereafter, without any action upon the rule still pending, the administrator, on November 18th, 1904, presented another petition for the sale of the same lands, accompanied by a statement showing that deceased had left personal property to the amount of $132.28 and debts of small amount as before, amounting to $291.57, and the claim of Catharine M. Godfrey was included at $3,598, with commissions and expenses (apparently estimated) $100. As a result there was a deficiency claimed of $3,557.19. Another rule to show cause was issued upon this petition, and although the proofs of publication as printed seem defective, yet when it was brought to hearing on January 27th, 1905, the sole heir-at-law appeared by her proctor, without objecting to the proofs, and opposed the granting of the order asked. Thereupon further testimony was taken, during which, upon a colloquy between court and counsel (no order being asked or made by the court), the administrator called Catharine M. Godfrey as a witness, and she was examined, without objection, respecting the particulars of her claim against the estate of the deceased. It thereby appears that her claim was made up of two items, one for money earned by her while a minor and handed to deceased, with whom she lived, amounting, it was said to over $3,000, and the other for services rendered to deceased during her last illness. The precise amount of each claim of Catharine M. Godfrey is not disclosed in the printed case.

It further appeared that the administrator was the husband of the deceased and had left her many years before her death and never returned to her. When he left, two of his children by a former wife (one of whom was Catharine M. Godfrey) remained with deceased. Catharine M. Godfrey continued living with her stepmother until the death of the latter. She went to work when about eleven years of age, and, if her story be credited, she gave all her earnings to her stepmother. She was furnished with board and lodging by her stepmother during the whole period.

Catharine M. Godfrey further testified that her stepmother had told her, when she received her earnings, that after the stepmother’s death “everything would be hers.”

Upon all the proofs before the orphans court I draw the conclusion that the application of the administrator for the sale of the land was not in -good faith.

The petitions were obviously made upon the sole ground that the personal estate of decedent was insufficient to discharge her debts. Such an application is made under the provisions of sections 82 to 90 of the Orphans Court act of 1898. P. L. 1898 p. 744. Yet both of them, when considered with the admissions of the administrator, distinctly disclosed that not only was the personal estate insufficient to pay the debts set up, but that all her estate, real and personal, was insufficient for such payment. The administrator swears, and produces evidence to the effect, that the land he'seeks to sell is worth not over $1,800. It will, obviously, be insufficient to pay the deficiency represented by the administrator.

The petition ought to have been made under the provisions now contained in sections 92 to 110 of the present Orphans Court act. P. L. 1898 p. 752.

The election by the administrator to proceed under section 82 et seq., rather than under section 99 et seq., was matter of serious importance to the heir-at-law acquiring title to the lands by descent. By the settled construction of the legislation now embodied in the former sections, the orphans court was without jurisdiction to settle disputed claims on the estate of decedent. Miller v. Pettit, 16 N. J. Law (1 Harr.) 421; Vreeland v. Vreeland’s Administrator, 16 N. J. Eq. (1 C. E. Gr.) 512; Smith v. Smith’s Administrator, 27 N. J. Eq. (12 C. E. Gr.) 445; Partridge v. Partridge, 46 N. J. Eq. (1 Dick.) 434; S. C., 47 N. J. Eq. (2 Dick.) 601; Pitcher’s Case, 61 N. J. Eq. (16 Dick.) 614.

If the administrator could elect to proceed under section 82, it will be observed that, upon the construction given to those provisions, the heir-at-law was powerless to contest any claim made upon the administrator, except by giving bond with security, under the provisions of section 89. In this case the heir-at-law would have been obliged to give security to pay over $3,500, if established by action, in order to preserve from sale real estate worth no more than $1,800.

On the other hand, if the administrator had applied, as he could and ought to have done, to have the sale made under the insolvent estate sections of the act, it would have been open to the heir-at-law, as a person interested, to file exceptions to the claim and demand of Catharine M. Godfrey, under which Catharine M. Godfrey would have been compelled to submit her claim to the orphans court, unless she elected to submit it to the judgment of a court of law or equity. Sections 104 and 105.

Upon the proofs before the orphans court, if produced in the court of chancery upon a bill to restrain the administrator from selling the land upon such an order, 1 think that an injunction would have been granted. Doll v. Cash, 61 N. J. Eq. (16 Dick.) 108; First Baptist Church v. Syms, 51 N. J. Eq. (6 Dick.) 363; S. C., 52 N. J. Eq. (7 Dick.) 545.

But was it necessary for the orphans court, upon these proofs, to proceed to make an order for sale of lands, and leave the heir-at-law to the expensive proceeding in equity to enjoin the sale, to enable him to contest a claim which he disputed? In my judgment it was not. In Smith v. Smithy ubi supra, that learned and practical judge, Chancellor Runyon, while admitting that in such a proceeding the orphans court, upon the settled construction of the legislation, was bound to accept the report of the administrator as to the amount of debts, added this significant exception, viz., “unless, indeed, the bona ftdes of his statement be assailed.” In my judgment such an exception to the rule must be admitted, and I do not think it can be limited, on principle, to the two instances which he states, viz., whether the claims reported have been presented to him, or whether the amounts thereof have been misstated. Whatever shows a want of good faith on the part of the administrator in making the application may invoke the action of the orphans court.

In the case in hand want of good faith abundantly appears.

First. He refrained from proceeding under the insolvent estate sections of the statute, under which the heir-at-law could have excepted to any claims, and sought the order under the sections which practically debarred the heir-at-law from making any contest.

Second. He included in the claims some which he, as husband of decedent, was liable for.

Third. Pie included therein the claim of his daughter. If she was unemancipated her earnings belonged to him. If he sought to recover them from his wife’s estate obviously they would be subject to deduction for the support of his wife and daughter, which he admittedly had not furnished.' If the daughter was emancipated, so as to be entitled to her own earnings, and to recover them from her stepmother or her estate, obviously they would be subject to deduction for her support and maintenance furnished by the stepmother. Yet the administrator admits the claim in full and seeks the order thereon.

There are other suspicious circumstances bearing on the good faith of the administrator in making this application, but the above seem to me sufficient to justify the orphans court in refusing to order a sale.

The order appealed from will, therefore, be affirmed, with costs.


text:
    In the matter of the probate of the last will and testament of Edwin Sternkopf.
    [Decided November 23d, 1906.]
    Upon proof raising a presumption of death under the provisions of the act entitled “An act declaring when the death of persons absenting themselves shall be presumed,” passed March 7th, 1797, the will of a person so presumed to be dead may be admitted to probate.
    On application for probate.

      Mr. Charles F. Kocher, for the proponent.
   Magie, Ordinary.

Charlotta Sternkopf has presented a petition for the admission to probate of the last will and testament of Edwin Sternkopf, her husband. The circumstances disclosed therein being unusual, she was directed to cite all the next of kin and heirs-at-law of Edwin Sternkopf. On the coming in of the citations a guardian ad litem for an infant, one of the next of lrin and an heir-at-law, was appointed, and the matter was heard before me on oral proofs.

The paper writing which was produced was proved to have been executed by Edwin Sternkopf on the 8th of October, 1897. Its execution was shown to have been accompanied with every circumstance required to constitute a valid testamentary disposition of property. But there was no direct proof produced of the death of the testator. There was ample proof to raise a presumption of death under the provisions of the act entitled “An act declaring when the death of persons absenting themselves shall be presumed,” passed March 7th, 1797. Pat. L. 241; 1 Gen. Stat. 1185.

That act and the amendments and supplements thereto have been the subject of judicial consideration in many cases, and, so far as this application is concerned, I think it is thereby settled that the presumption arising upon proof satisfying the terms of the original act is a presumption of law, and that the death is presumed to_ have occurred at the termination of seven years from the time when the person was last heard from. Wambaugh v. Schenck, 2 N. J. Law (1 Penn.) 214; Smith v. Smith, 5 N. J. Eq. (1 Halst.) 484; Osborn v. Allen, 26 N. J. Law (2 Dutch.) 388; Clarke v. Canfield, 15 N. J. Eq. (2 McCart.) 119; Hoyt v. Newbold, 45 N. J. Law (16 Vr.) 219; Plume v. Howard Savings Institution, 46 N. J. Law (17 Vr.) 211; Burkhardt v. Burkhardt, 68 N. J. Eq. (18 Dick.) 479; Meyer v. Madreperla, 68 N. J. Law (39 Vr.) 258.

I have not been able to discover any instance of the admission of a will to probate in this court upon the mere presumption of the death of the testator arising under the statute. Nor have I been pointed to, nor discovered, any such proceeding by surrogates or orphans courts. Counsel refer to the case of Plume, Administrator, v. Howard Savings Institution, ubi supra, in which it seems that the letters of administration of the plaintiff were issued upon a mere presumption of death, and contend that if the presumption will support administration it will be equally effective for the admission of a will to probate. But the supreme court was careful in that case to refrain from deciding whether or not the orphans court had a right to issue the letters of administration. What it decided was that the orphans court had jurisdiction of the subject-matter, and that its action thereon could not be attacked collaterally. The decision shed no light on the question here presented.

But although this question seems to be one of first impression, notwithstanding the statute was enacted over a century ago, I have, upon mature consideration, reached the conclusion that this application ought to be granted and the will admitted to probate.

My first doubt was whether the terms of the act of 1797 were extensive enough to embrace such an application. They raise the presumption of death upon certain proofs “in any case wherein his or her death shall come in question.” It then declares that an estate recovered “in any such case” shall be restored to him or her if in any subsequent action or suit the person so presumed to be dead shall be proved to be living, and he may recover the rents and profits of the estate during the time he or she shall have been deprived of it.

It would seem that this act could have been interpreted as limiting the presumption which it permitted or required to “cases” in which the question of death was involved, and in which there could be a recovery of an estate and a process of eviction therefrom.

But the judicial interpretation in this state has recognized a meaning of broader import in its terms. It has been declared to be an embodiment in statutory form of the rule of the common law that on proof that a person had been absent from his usual abode without being heard from for the period of seven years his death be presumed. Our courts have therefore not limited its application to actions affecting real propertjq but have applied it to other matters.

In Wambaugh v. Schenck, ubi supra, it was unsuccessfully contended that the act did not extend to an action of dower, although that was a real action.

In Smith v. Smith, ubi supra, it was applied by the chancellor in a case in chancery involving the right to a dividend made by executors of the residue of the estate in their hands.

In Osborn v. Allen, ubi supra, it was deemed applicable in an action by a mother to recover compensation for the services of her son, in which she claimed to be a widow on the presumption of the death of her husband.

In Clarke v. Canfield, ubi supra, it was applied by the chancellor on a bill filed for the recovery of a legacy of money.

In Burkhardt v. Burkhardt, ubi supra, it was applied to a case arising under a bill for a decree that a marriage was null.

The subsequent case of Spiltoir v. Spiltoir, 64 Atl. Rep. 96, seems to indicate that the statute applies when the death of a person comes directly in question, but not where the issue is not raised by the pleadings or only appears incidentally.

In view of the long course of decisions relating to the applicability of the Death act, I think I would not be justified in excluding from its application the case presented before me by the petition for probate. And it is to be observed that by the direction of citations to the heirs-at-law and next of kin the petition must be treated as one for probate in solemn form.

If I had reached a different construction of the Death act it would not, in any judganeaat, aiecessarily result in the denial of the application.

While it is true that upoaa proof of the existence of a persoaa at a particular time it anust be presumed that he continued to exist thereafter until his death is proved, it has never beeaa conceived that the proof of death anust necessarily be direct. Obviously, upon proof of circuaoastances raisioag a counter-presuanptioaa, his death anay bo found. Thus, if he eaaabarked on a vessel which was aaever afterward heard froan, or which was proved to have beeaa shipwrecked, at least aander circumstances indicating the loss of all oaa board, there would be a questioaa, after a reasonable time had elapsed, draring which he had not beeaa heard froan, whether the presumption of the continuance of his life had aaot beeaa overcome by the coaanter-presuanption of his death in the shipwreck. The English courts seem to have adopted the period of seveaa years as indicating the reasonable period sufficieait to raise the coranter-presaamption. In Doe v. Jesson, 6 East 80, Lord Ellenborough applied such a rule on the analogy oí the English statute respecting leases dependent on lives of 19 Car. II., and the statute respecting bigamy of 1 Jac. I.; and seven years’ absence unheard from seems to have been generally accepted as raising the counter-presumption, although there have been questions raised as to whether the presumption of death arose at the end of that period, or whether, when the time of death came in question, it must not be directly proved. But In re Goods of Matthews, L. R. Prob. Div. 17 (1898), the English probate court, on proof of sufficient inquiries for the testator, who had disappeared, permitted his death to be sworn to three years after his disappearance.

In the case in hand the proof of the disappearance of the testator, that he had not been heard from since a few days thereafter, and that there had been continued and exhaustive searches and inquiries to ascertain his whereabouts, which were unsuccessful, is ample to overcome the presumption of his life and to raise a presumption of his death at this time, which is more than eight years after he was last heard from.

Another difficulty in taking jurisdiction to admit, this will to probate on the proofs suggested itself to me on the examination of the more recent legislation. If, upon a presumption of the death .of a testator arising under the statute, or otherwise, his will may be admitted to probate, such presumption would also apparently justify the issuance of letters of administration if no will were produced. Yet the legislature, by a supplement to the then existing Orphans Court act, approved March 23d, 1885 (P. L. 1885 p. 116), conferred power upon the ordinary, the orphans courts and surrogates, to grant letters of administration upon the estate of a person who, upon proofs, is shown to have absented himself, and has not been heard from for seven years. But no power is conferred to admit a will to probate and issue letters testamentary thereon upon such proofs. T.his legislation has been re-enacted in the Orphans Court act of 1898, in sections 30, 31 and 32. P. L. 1898 p. 725.

I am not inclined to attribute to this legislation the force of legislative determination that no power existed in probate courts to grant letters testamentaiy, or of administration, upon proofs raising a presumption of death under the statute, or otherwise, unless expressly conferred on them. By a supplement to the Death act of 1797, approved February 15th, 1848 (P. L. 1848 p. 43), it was enacted that the heirs or devisees of a person presumed to be dead, under the provisions of the act, might apply to the court of chancery and procure an order for the sale of the lands to which such person would be entitled if living, provision being made for accounting to him for the proceeds of the sale if he should appear and claim the same. By an amendment to this supplement, approved April 3d, 1891 (P. L. 1891 p. 313), the benefits of the act were extended to purchasers from such heirs and devisees. It is not necessary to determine whether these acts were effective in the attempt to convey the interest of the person presumably dead, but it is evident that the legislation recognized that there might be. devisees of such a person, which necessarily involves the existence of an effective will competent to be admitted to probate. I am rather inclined to the view that the act of 1885 was designed to regulate the manner in which the estates of persons presumed to be dead should be administered and distributed upon security for repayment, if the person returned, and that conferring the power to issue letters of administration was incidental and out of caution.

The result is that the applicant is entitled to have this will admitted to probate, and to have letters testamentary issued to her as the executrix named therein.


text:
    In the matter of the application of Thomas Whitaker, executor of Sarah N. Garton, deceased, for sale of lands for payment of debts.
    [Argued June 22d, 1906.
    Decided November 23d, 1906.]
    1. Before an orphans court may make an order for the sale of lands of a testatrix to pay debts which her personal estate is insufficient to pay, the executor who seeks the order must have applied all the personal estate to their payment, including specific legacies. The legatee’s right to contribution cannot be considered in the proceeding to sell land.
    2. Upon such a proceeding it appeared in the orphans court that the testatrix died seized of a number of dwelling-houses and lots, valued by the executor at $5,600; that the debts unpaid were $1,287.37, and if a specific legacy should be applied they would be reduced to $287.37, and that the sale of any two houses would raise the whole of the unpaid debts, and of any one house would raise the debts after application of the specific legacy.—Held, that the orphans court should have directed the sale of such houses as would have been sufficient and no more, and that the order requiring the executor to sell all the houses was erroneous, there being no evidence that the sale of any one or two of them would diminish the value of the others.
    On appeal from the Cumberland county orphans court.

      Mr. Louis II. Miller, for the appellants.

      Mr. William A. Logue, for the respondent.
   Magie, Ordinary.

This application seeks the reversal of an order of the Cumberland county orphans court directing Thomas Whitaker, the executor of the last will and testament of Sarah N. Garton, deceased, to sell all the real estate of which she died seized, because her personal estate was insufficient to pay her debts.

On behalf of appellants, it is first contended that the order was made without any proofs such as are required by section 83 of the Orphans Count act of 1898. P. L. 1898 p. 747. But this objection cannot prevail. The order in question expressly recites that on tbe return clay of the rule to show cause, which had been previously made, the court heard and examined the allegations and proofs of the parties, and thereupon determined that testatrix’s personal estate was insufficient to pay her debts. The printed case does not show what proofs were taken, but that none were taken cannot be inferred in contradiction of the express statement of the order.

Tt is next contended that the order is erroneous in that it directs testatrix’s lands to be sold to raise a deficiency of $1,287.37, although it appears by the order that the executor liad, not applied to the payment of the debts the sum of $1,000 secured by a mortgage held by testatrix against lands in this state. If that sum could be collected by the executor upon the mortgage, and if he applied it to the payment of the debts, the deficiency would have been only $287.37. There is nothing to show, and it was not asserted on the argument, that the mortgage was uncollectible. The failure-of the court to require the executor to apply the sum secured thereby to the payment of debts before asking an order to sell appears to have been grounded upon an adjudication that the mortgage had been specifically bequeathed by testatrix to her daughter Sarah. The will of testatrix is printed in the case, and perhaps it may be inferred that it was among the proofs before the orphans court. It sustains the view that there was a specific bequest of that mortgage. But that fact, in my judgment, did not justify the executor in withholding it from application to the payment of debts, or the court in approving his conduct. The mortgage is personal estate in the hands of the executor, and must be applied to the payment of debts before any lands can be sold.

It is true that the rule is that for debts of a testator remaining undischarged after the application of his estate not specifically given specific legacies and the lands devised must contribute ratably. Thomas v. Thomas, 17 N. J. Eq. (2 C. E. Gr.) 856; Langstroth v. Golding, 41 N. J. Eq. (14 Stew.) 49; Wiggins v. Wiggins, 65 N. J. Eq. (20 Dick.) 417. But the jurisdiction of the orphans court to order a sale of lands to pay debts does not invest that court with power to determine and enforce the equities of contribution between the devisees and the legatees of a specific bequest. By the statute lands are to be sold only for debts remaining undischarged after the application of the personal estate. If a specific legacy is thereby exhausted, the legatee may doubtless enforce her equity to require the 'devisees to aid in repairing her loss by making payment of their proper proportion thereof.

It may be added that the order, in exonerating the legatees from having her mortgage primarily applied to debts, and so casting the whole of the debts upon the lands, reverses the scheme of the act, and would require the devisees to seek contribution out of the specific legacy.

In this respect the order is erroneous.

It is next contended that the order is erroneous in that it directs the executor to sell all the lands of which testatrix died seized.

The petition of the executor discloses that testatrix died seized of three double dwelling-houses and lots in Cumberland county, and of two halves of double dwelling-houses and lots in Gloucester countjr, to which the executor fixed a valuation amounting to $5,600. These were all devised to different people, and are all ordered to be sold to raise $1,287.37. The executor is further ordered to apply to the Gloucester county orphans court for an order to sell the lands that lie in that county, pursuant to the provisions of sections 83 and 84 of the Orphans Court act of 1898. P. L. 1898 p. 745.

The order was made apparently on two grounds, and if they justify a sale of over $5,000 worth of lands to pay less than $1,300 of debts, they would equally support a sale of all of them to pay the $287.37 which will remain after the application of the mortgage to the debts.

One ground is that all the real estate devised should contribute ratably to the payment of debts. This -is no doubt a correct statement of the equities of the parties, but the statute gives no authority to the orphans court to work out those equities, or to direct the sale of all the real estate for that purpose. On the contrary, it expressly directs that no more thereof shall be sold than is sufficient to pay the debts (except under one specific condition), and then by the last clause of section 95 it enacts that airy devisee whose lands devised have been sold for the payment of debts of his devisor may compel others holding under the testator to contribute in proportion to their respective interests, so as to equalize the burden or loss. I do not think it possible to find in this enactment any jurisdiction conferred upon the orphans court to entertain actions to compel contributions. If such jurisdiction was intended it obviously gives no support to this clause of the order. The right to contribution protected thereby is a right in a devisee whose lands have been sold, and the act gives no color of power to adjust the equities by a sale of all the lands.

The other ground upon which the order complained of was made was that a part of the lands could not be sold without manifest injury to the devisees. By a proviso in section 83, ubi supra, the previous direction that no more lands should be sold than may be necessary to pay the residue of debts after application of the personal estate in the hands of the executor was doubtless modified. The court had been previoiisly required to determine whether the sale of a part of the lands would be sufficient, and if so, to specify the part to be sold. If, however, it appeared that the sale of a part which would be sufficient would diminish the value of the remainder, discretion was given to sell more or the whole. Eor example, if the lands consisted of a farm, the size of which, or its division into arable or other land, affected its market value, the sale of one part of it, though ample to pay the debts, might seriously diminish the value of the remainder. In such and similar cases discretion is given to sell the whole.

But, in my judgment, this provision gives no authority for the swooping order of sale presented in the case now in hand. It is obvious that the sale of one of the double houses would raise the sum of $1,287.37. At the valuation of the executor, the sale of any one of the houses would raise $287.37. There is nothing to indicate that the sale of any one would diminish the value of the others. The plain reason disclosed for directing the sale of all the houses by the order was that it was deemed that thereby contribution could be worked out between the parties, but that is again subversive of the scheme of the legislation, which, in subjeeting to sale a sufficient part, gives the devisee a right to compel contribution in money. Here, in order to compel contribution, the other devisees are by this order deprived of the land devised.

For both of the errors above mentioned, the order must be reversed.


text:
    Cornelia Wheedon, administratrix, &c., appellant, v. Austin Nichols et al., respondents.
    [Argued October 16th, 1906.
    Decided December 26th, 1906.]
    1. A personal representative, administering an insolvent estate under the statute, may present his own claim against the estate, and, unless it is made to appear to be dishonest or fraudulent, may be admitted to participate in the distribution of the assets on the same footing as other creditors.
    2. When a claim against an insolvent estate is excepted to, the orphans court has jurisdiction to adjudicate thereon, unless the claimant elects to proceed against the personal representative at law or in equity. When such election is made by a third party the personal representative is not bound to interpose the bar of the statute to limitations.
    3. As a personal representative who has presented his own claim against the estate cannot elect to proceed at law or in equity against himself, the jurisdiction of the orphans court cannot be taken away; but if the claim of the personal representative against the estate is not made to appear to be dishonest or fraudulent, the orphans court cannot disallow it solely on the ground that the statute of limitations has run against it.
    On appeal from Monmouth county orphans court.

      Mr. Aclon 0. llartshorne, for the' appellants.

      Mr. Henry M. Lummis, for the respondents.
   Magie, Ordinary.

This is an appeal from an adjudication of the Monmouth county orphans court made upon the following ease.

The estate being administered was insolvent, and the administratrix (who was the mother of the intestate) filed her statement of the assets and claims, and included among such claims one made by herself against the estate. Creditors excepted to her claim, and when the matter came on for hearing before the orphans court the exception was allowed, and the claim of the administratrix was disallowed. This is the adjudication complained of.

On the part of the respondents it is first contended that there was no proof made before the orphans court that the note of the intestate, which was the subject of the claim of his administratrix, had been made by him and delivered to his mother. The proofs before the orphans court do not seem to be contained in the state of the ease. If they were preserved they ought to have been included therein. But I think this objection cannot be successfully interposed. The conclusions of the judge of the orphans court declare that the exception interposed was to the allowance of a note made by the intestate, and held by his mother, the administratrix, and that the note is for the sum of $800, and bears date November 1st, 1895. The note must therefore have been produced by the administratrix, and the presumption is that it was proved to be the note of the intestate. The administratrix producing it was entitled to be paid the amount of it, unless the objections on which the orphans court disallowed it ought to prevail.

The court found that the intestate died June 24th, 1903. This is conceded to be correct. The statute of limitations had, therefore, run against the note before the death of the intestate, if the note was payable on demand (as is claimed), and proper demand had been made within a reasonable time. What, in fact, was the due day of the note has not been made to appear. The finding of the orphans court judge was that the note was barred by the statute of limitations, and that, in the absence of proof that something was done by the intestate to take the note out of the statute, the administratrix had no right to claim its allowance with the other claims against the estate, or to waive the statute of limitations in favor of her own claim, when the estate was being administered as an insolvent estate.

If an estate is solvent, it admits of no doubt that a personal representative may waive the statute of limitations as to any claim of a third person, and be allowed in his accounts for the payment of a claim against which the statute had run. Pursel v. Pursel, 14 N. J. Eq. (1 McCart.) 526; First National Bank v. Thompson, 61 N. J. Eq. (16 Dick.) 202; Vreeland v. Vreeland’s Administrator, 16 N. J. Eq. (1 C. E. Gr.) 528.

A personal representative may also acknowledge an obligation against which the statute has run, or promise to pay the obligation so as to take the case out of the statute, provided the acknowledgment or promise is made in conformity with the provisions of the statute. Hewes v. Hurff, 69 N. J. Law (40 Vr.) 263.

When the personal representative has a claim against the estate which he is administering, it is impossible lor him to enforce the claim by action at law or in equity. In such case it is well settled that he may exercise the right of retainer for the satisfaction of his claim if the claim be honest. If the indebtedness was originally honest, it is not rendered dishonest by the running of the statute for the prescribed period. As such a representative may, with impunity, decline to interpose the bar of the statute against an honest debt remaining unpaid, I think he may exercise the right of retainer to satisfy his own claim if of that character. Of course, in such cases, the action of the personal representative diminishes the estate to the injury of the residuary or other legatees or the next of kin.

It is insisted in argument that, because the estate is insolvent, the right of a personal representative in respect to his claim upon the estate is different from his right in respect to a claim upon a solvent estate.

It admits of no doubt that the personal representative cannot retain the whole of his claim as against other creditors. He must come in on an equality with other claimants of the same degree. Dolman v. Cook, 14 N. J. Eq. (1 McCart.) 56.

The administration of an estate which is insufficient to pay all the debts of the deceased owner is now governed by the provisions of the subdivision of the Orphans Court act of 1898, entitled “Insolvent estates,” and contained in section 99 et seq. P. L. 1898 p. 752. By those provisions any claim properly presented to the personal representative of the estate must be reported by him to the orphans court, and may be excepted to by the personal representative or by any person interested. If excepted to the orphans court may hear proofs and decree and determine in regard to such claim, unless the claimant elects to proceed against the personal representative by action at law or suit in equity, Which he is permitted to do under section 105 of said act.

If the claimant whose claim is excepted to is a third party, and elects to proceed at law or in equity, the personal representative is not bound to interpose the statute of limitations as against the claim if he admits it to be honest. There is no provision in the act by which the exceptant, or any others, may compel the personal representative to interpose the statute. Nor is there any provision that permits the exceptant, or any others, to intervene in the action at law or suit in equity and make defence to the claim.

When the personal representative is himself a claimant upon the estate, of course no action at law or in equity can be brought.

If a personal representative cannot be compelled by the ex-ceptant to a claim upon an insolvent estate, to interpose the statute against the claim of a third person, there seems no valid reason why the statute should be held to operate as a bar to an honest claim of the personal representative, which is necessarily tried before the orphans court. It is true that the admission of the claim, notwithstanding the statute has run against it, will diminish the dividend to the other creditors; but such would be the result if, in an action at láw brought by a claimant under section 105, the personal representative did not interpose the bar of the statute. The creditors have no greater rights than have legatees or distributees of a solvent estate, whose interests are diminished 'by the failure of the personal representative to set up the statute. It is doubtless true that, in some states, a different view has been taken, but my examination of those cases indicates that the legislation in those states is different from ours.

In Pursel v. Pursel, ubi supra, Henry W. Green, ordinary, approved the disallowance in the account of an executor of a credit claimed for a book-account of the executor against the testator, because the bulk of it was barred by the statute of limitations in testator’s lifetime, and the proofs raised every presumption against the justice of any part of the claim. The statement that the claim was barred by the statute was, of course, inadvertent, for the statute only bars the action if interposed by the plea or otherwise. What that learned judge intended to express was undoubtedly this, viz., that the claim of the executor upon the estate of the testator was unjust and dishonest, one ground for such determination being the fact that if the claim had been sued on in the lifetime of testator he could have interposed the bar of the statute. But, obviously, that ground would not have operated upon the rest of the claim, and there were other circumstances that convinced him that the whole claim was dishonest.

In the case in hand the note claimed by the administratrix was dated more than six years before the maker’s death. It is said to have been payable on demand. Whether the statute had run against it at his death does not appear from the proofs in the case printed. If it did appear it would not, without other proof, justify the inference that the claim was dishonest, and, so far as appears, there was no other proof.

It results that the decree appealed from must be reversed and the administratrix’s claim must be decreed to be admitted and allowed.


author: Masie, Ordinary.

text:
    In the matter of the probate of the last will and testament of Daniel Moore, deceased.
    [Argued October 22d, 1906.
    Decided January 15th, 1907.]
    The transcript of the proceedings in the orphans court shows that the will offered for probate had been revoked by -a subsequent will having variant provisions, and also containing an express revocation of former wills, and that the subsequent will had been burned by the testator with intent to revoke it.—Held, upon, authority of the decision in this court in. Randall v. Beatty, SI N. J. Bq. (4 Stew.) 643, that the revocation of the subsequent will did not revive the former will, in the absence of circumstances indicating that such was the intent of testator. Held further, that the circumstances proven raised no inference that testator intended to revive the former will, but such intent was negatived by the proofs, and therefore that the will offered for probate was properly rejected.
    On appeal from Hudson county orphans court.

      Mr. Robert 8. Hudspeth and Mr. Edward Kenney, for the appellant.

      Mr. Michael T. Barrett and Mr. Francis Child, for the respondents.
   Masie, Ordinary.

The appeal in this case is from a decree of the orphans court of Hudson county, refusing to admit to probate a paper writing propounded as the last will and testament of Daniel Moore, who died in that county on November 9th, 1903.

The paper writing offered for probate purports to be dated December 12th, 1882. If it was executed by Daniel Moore, the case shows by uncontradicted evidence that, subsequent to that date, he executed several wills. The last one was executed between October 9th and November 14th, 1900. It.was drawn by Michael T. Barrett, at the request of Daniel Moore, and was executed in the manner required by our statute. This will being of later date than the paper offered for probate, and disclosing a scheme for the disposition of his property variant from that appearing in this paper, operated as an indirect revocation of the former will. It is also made to appear that it contained an express revocation of all former wills.

By the second section of the “Act concerning wills,” passed November 16th, 1795 (Pat. L. 189), it was provided that no> devise or bequest in writing shall be revocable otherwise than by some other will or codicil in writing or other writing declaring the same, or by burning, canceling, tearing or obliterating the same by the testator himself, or in his presence, or by his direction or consent. It was further therein provided that all devises and bequests shall remain and continue in force until burnt, canceled, torn or obliterated, or unless the same shall be revoked or altered by some other will or codicil in writing, or other writing of the devisor, signed in the presence of three or more subscribing witnesses, declaring such revocation or alteration.

The legislation was re-enacted in the revision of 1846. Stat. p. 363; Rev. p. 1243. By a supplement to the revised act, approved March 12th, 1851 (3 Gen. Stat. p. 3760), it was provided that a will could be effectively executed before two witnesses. In consequence, it was further provided that written revocations of wills should be executed in the same manner as wills are required to be executed, and “when so made shall be sufficient to revoke any last will or any part thereof.”

If this legislation were now to be reviewed for the first time, I should be inclined to the view that its language in respect to the revocation of a former will by the execution of a later will was adopted to express the indirect or implied revocation thus resulting, and that its language, in respect to revocation by the execution of another writing declaring the revocation, was adopted to express the direct or express revocation thus resulting. This distinction between express and implied revocation was pointed out by Henry W. Green, ordinary, in delivering the opinion of this court in Smith v. McChesney, 15 N. J. Eq. (2 McCart.) 359, and by the same learned judge when chief-justice, in Snowhill v. Snowhill, 23 N. J. Law (3 Zab.) 447.

Upon this construction of the statute it might be well maintained that the execution of a later will, impliedly revoking a former will and containing a clause expressly revoking all former wills, would satisfy both of these clauses of the statute. It , is true that the statute declares that the express revocation is to be by "other” writing, which may mean a writing which is not a will. But if that meaning is attributed to the words, I think, but for a construction given them in a case in this court presently to be mentioned, the words of revocation, though contained in a will, might be held to satisfy the statute as "other writing,” because such a clause has no testamentary character, and is not a testamentary disposition intended to taire effect only at the death of the testator leaving the will'unrevoked, but to operate and take effect at once.

In other states this view of an express revocatory clause contained in a subsequent will has been declared by courts of high repute. Pickens v. Davis, 134 Mass. 256; James v. Marvin, 3 Conn. 576; Scott v. Fink, 45 Mich. 246. Like views have been expressed in the courts of states having provisions for the revocations of wills similar to those in our legislation. In re Cunningham, 88 Minn. 169; Cheever v. North, 106 Mich. 393.

The case in this court in which a different view was expressed was decided by Runyon, ordinary, and was Randall v. Beatty, 31 N. J. Eq. (4 Stew.) 643. It appeared that the decedent, whose testamentary disposition was in question, died leaving a will, executed in 1870. In 1873 she executed another will containing a revocatory clause. The will of 1873 was afterward canceled and decedent retained the will of 1870 in her possession. The learned ordinary held that the will of 1873- did not revoke that of 1870, because the revocatory clause was testamentary in character, and its cancellation revived the former will retained by her.

In the case under consideration the evidence makes it clear that Daniel Moore burned and destroyed the will drawn for him by Mr. Barrett, with intent to revoke it. It was urged in the argument in the court below, and the same argument has been made here, that by the burning and revocation of the later will, the former paper writing, if the will of the deceased, was thereby, ipso facto, revived, without considering whether or not the testator, by such revocation, intended to revive the previous will.

For the respondents the contention is, first, that the construction of the revocatory clauses of the wills statute was erroneous, but second, that if it was not erroneous or is binding upon this court, in the present case, the circumstances proved clearly indicate that Daniel Moore did not, in fact, intend to revive or reestablish any former will. In Randall v. Beatty, ubi supra, Chancellor Runyon admits that it must appear, in order that the revocation of a later will shall operate to revive a former will, from the circumstances surrounding the transaction, that the testator intended to revive the former will.

Assuming then that such construction of the statute of wills is correct, it admits of no doubt, in my judgment, that Daniel Moore in this case, if he did execute the paper writing in question, did not intend that it should be revived by the destruction of the will drawn by Mr. Barrett and executed by Mr. Moore in 1900.

The will construed in Randall v. Beatty had been retained by the testatrix, kept with her husband’s will in the place of deposit for her valuable papers, and was found there at her death, and this circumstance was seized upon to indicate that when she destroyed a will of later execution she intended to revive the will which she had preserved so carefully.

In the case now under consideration tire paper writing claimed to be the will of Daniel Moore was not retained by him in the place in which he kept his important papers, and to wliich he frequently resorted for examination of them. On the contrary, if the singular story of the discovery of this paper writing is credible, he had practically thrown the paper away, or delivered it, without explaining its contents, along with old letters and papers, to a young woman who passed as his daughter, on the eve of her marriage, which was shortly after the execution of the Barrett will. The paper had been partially burned, and by such burning one of the clauses devising valuable property is rendered incapable of being read. It is a fair conjecture, however, that it is intended to be a provision for his wife Hannah, who was living at the date of this paper writing. It is incredible that, at the time of the destruction of the later will, he could have an intent to revive that clause, for his wife had been dead for some years and he had married again.

IJpon the whole evidence I find no ground upon which an intent to revive can be inferred, but, on the contrary, I think it clear that he did not intend to revive this paper writing, if it ever was his will.

The decree must, therefore, be affirmed on this ground.

The very extraordinary account given of the discovery of this paper writing, and the extraordinary discrepancies appearing in it, might, perhaps, justify a denial of its admission to probate on the ground that the right of heirs-at-law will not be taken away except upon clear proof of a testamentary disposition of the decedent’s property. But as the other ground is found to justify the affirmance of the decree below, no opinion will be expressed on this subject.

Let the decree be affirmed. Counsel may be heard before the decree is signed, if they desire, on the question of the allowance of costs and the expenses of the appeal.


author: Gummere, Ci-iiee-Justice.

text:
    August Seastream et al., complainants-appellants, v. New Jersey Exhibition Company, respondent-defendant.
    [Submitted December 11th, 1906.
    Decided March 4th, 1907.]
    1. A decree of the court of chancery adjudging one guilty of contempt of that court in attempting to improperly influence the due administration of justice therein, rendered in proceedings instituted solely for the purpose of vindicating the dignity and authority of the court, is not reviewable except for want of jurisdiction in the court.
    2. A proceeding to punish for contempt was begun by an order directing the accused persons to appear in court at a time specified and show cause why they should not be adjudged guilty. The order was based on affidavits setting forth the acts charged as contempt, consisting of an attempt to improperly influence the administration of justice in such court. The order and affidavits wefe served on them. On the return day proofs were taken on the charges and in defence thereof.—Held, that as the persons were informed of the charges, and were afforded an opportunity to meet them, the court had jurisdiction of the proceeding.
    3. Where one charged with contempt of court voluntarily offered himself as a witness on the hearing, and was examined by his counsel, and submitted without objection to cross-examination by counsel appointed by the court to prosecute the charge against him, he could not urge that the court subjected him to examination and cross-examination without authority.
    4. A vice-chancellor has authority as a master of the court of chancery to take testimony of witnesses produced before him in a proceeding to punish one for contempt of the court of chancery, and submit the same to the chancellor for adjudication.
    On appeal of Griffiths and others, from a decree of the court of chancery, reported in 69 N. J. Eq. (3 Robb.) 15.

      Mr. Warren Dixon, for the appellants.

      Contra, Mr- Franlc P. McDermott and Mr. Robert II. McCarter, attorney-general.
   The opinion of the court was delivered by

Gummere, Ci-iiee-Justice.

The appeal in the present case is from a decree in chancery adjudging the appellants guilty of contempt of that court in attempting to improperly influence the due administration of justice therein in the above-stated cause, and imposing upon each of them a fine of a specified amount.

Two reasons are assigned for reversing the decree—first, that the court of chancery was without jurisdiction to make it; and second, that it was not justified by the proofs submitted to the court.

The second ground cannot be availed of on appeal. The proceeding was instituted solely for the purpose of punishing the alleged contemners, to vindicate the dignity and authority of the court. Such a proceeding is not reviewable by an appellate tribunal, except for the lack of jurisdiction in the court in which the proceeding is had. Dodd v. Una, 40 N. J. Eq. (13 Stew.) 714; Frank v. Herold, 64 N. J. Eq. (19 Dick.) 371.

Turning to the consideration of the other reason assigned for a reversal of the decree—namely, lack of jurisdiction—it needs no argument to demonstrate that the court of chancery has jurisdiction to investigate an alleged attempt to improperly influence the due administration of justice in a case pending before it, and to punish the offenders if they are proved to be guilty. In fact it is not contended otherwise by the appellants. The principal ground upon which they assert lack of jurisdiction is that they were never informed of the specific charge made against them, nor afforded an opportunity to meet it. Our examination of the case satisfies us that the fact is otherwise. The proceeding was begun by an order which directed the several appellants to appear in court at a time specified, and show cause why they, or some of them, should not be adjudged guilty of contempt in attempting to improperly influence the due administration of justice in the above-cited cause. This order was based upon affidavits which plainly set forth the acts charged against them. Both the order and the affidavits upon which it was founded were served on each of the appellants. Upon the return day of the order proofs were taken before one of the vice-chancellors in substantiation of the facts set forth in the affidavits, and afterward the appellants submitted testimony in denial of those facts. It is difficult to conceive how a more complete opportunity could have been afforded them of knowing the exact nature of the charge against them and of meeting it.

It is further asserted that the proceeding was coram non judice, “because the accused appellants were not called before the court of chancery to respond, but were brought before his honor, Vice-Chancellor Pitney, who subjected them to examination and cross-examination without authority.”

This assertion, like the preceding one, is not borne out by the fact. It is true that, upon the return day of the order, the chancellor himself was not present in court, and that Vice-Chancellor Pitney sat in his stead. It is also true that the testimony in support of, and in contravention of, the charges which were the subject-matter of the proceeding was taken before him. It is not true, however, that the learned vice-chancellor subjected the appellants to examination and cross-examination without authority. They, each of them, offered themselves as witnesses in their own .behalf, voluntarily, and were examined by their respective counsel. They submitted themselves, without objection, to cross-examination at the hands of counsel appointed by the court to prosecute the charges against them. Even if it be assumed, as argued by counsel for the appellants, that the learned vice-chancellor was without power to hear and determine the subject-matter of the investigation (although we incline to the view that such assumption is unwarranted), he, nevertheless, had full authority, as a master of court, to take the testimony of the witnesses produced before him, for the'purpose of having it transcribed and submitted to the chancellor for his consideration and adjudication. And this, in fact, was the course pursued by him. In order to avoid any challenge to the existence of power upon his part to pass upon the matter of the alleged contempt of the appellants, he submitted the whole of the testimony taken before him to the chancellor himself, and the latter officer, after an independent examination of that testimony, and upon his own judgment, without advice from the vice-chancellor, made the decree appealed from. The legality of such a course of proceeding seems to us too plain to be questioned.

The decree appealed from will be affirmed.

For affirmance—The Chief-Justice, Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze, Reed, Trenciiard, Bogert, Vredenburgti, Yroom, Green, Gray, Dili—15.

For reversal—None.