text:
    Marcus Sayre et al. v. The Mayor and Common Council of the City of Newark et al.
    [Filed March 11th, 1899.]
    A corporation employs from fifteen to twenty-five men in conducting a business upon leased land bordering upon the Passaic river, a tidal stream. The city of Newark proposes to build a sewer, through which a large quantity of sewage will be discharged into the stream at a point fifty-five feet from complainant’s premises. It is clear that the sewage at certain recurring periods of each year will create a stench which will be very offensive to the officers and employes of the complainant while transacting the business of the company upon the premises, and will impair the value of its property. — Held, that, although the injury is only anticipated, it will be enjoined.
    On bill, answer and proofs.

      Messrs. McCarter, Williamson & McCarter, for the complainants.

      Messrs. Coult & Howell, for the defendants.
   Reed, V. C.

The bill is filed to restrain the defendants from building a sewer, through which .the city of Newark proposes to discharge into the Passaic river, at a point fifty-five feet north from the property of the complainant, two million and sixty-five thousand gallons of house sewage every twenty-four hours. Marcus Sayre is the owner of a tract of land on the west side of the Passaic river in the city of Newark, adjoining on the south the property of the New Jersey Railroad and Transportation Company and the Centre Street bridge.

The property has a frontage of two hundred feet on the river, and runs back two hundred and thirty-seven feet to Front street..

Marcus Sayre owned the property for many years prior to 1891, and used the same for a brick, lime, cement and masons’ materials business. The Marcus Sayre Company was formed in 1891, and leases the property from Marcus Sayre and carries on the same business formerly transacted by Mr. Sayre. A large part of the materials used upon the premises are brought there by boats and scows. In addition to Mr. Sayre himself, there are upon these premises daily from thirteen to twenty-five men engaged in transacting the business of the company.

On April 21st, 1898, the board of street and water commissioners of the city of Newark passed an ordinance for the construction of a sewer in Market street, from Arlington to Plain street, through Plain street to Warren street, through Warren and Halsey and West Park streets to Broad street; thence across Military Park to Saybrook Place, through it to the easterly line of Front street, then across the Pennsylvania railroad line to the Passaic river. The outlet- of the sewer is to be six feet in diameter and the area to be drained of house and surface-water sewage is two hundred and ninety-five acres in the most thickly propulated part of the city of Newark.

There are now within the limits of the city of Newark nine sewers. Above the point fixed for the outlet of the proposed sewer there are the following sewers draining into the river : The Montclair Railway sewer, which is an outlet of the Orange system, and which it is estimated delivers six hundred and twenty-five thousand gallons each hour; a short distance south of this sewer is the Vernon Avenue sewer at the railroad bridge, which drains two hundred and forty-seven acres, and is estimated to deliver ten thousand two hundred and ninety gallons each hour; then ac some distance south of this is the Gully Road sewer, draining three hundred and sixty-eight acres and delivering eleven thousand six hundred and ten gallons each hour; then south of this is the Fourth Avenue sewer, draining one hundred and sixty-four acres, and delivering forty thousand two hundred and ninety gallons of sewage each hour; south of this is the Carlisle Place or Millbrook sewer, which drains eighteen hundred and sixty acres and delivering seven hundred and ninety-six thousand five hundred gallons of sewage each hour; then still further south is the Ballantine Dock sewer, which drains two hundred and twenty-two acres and delivers one hundred and sixty-two thousand gallons each hour. The outlet of the Ballantine Dock sewer is two hundred and fifty-four feet north from the property of the complainant.

The sewers below the proposed outlet of the new sewer are, first, the City Dock sewer, two thousand feet south of the Ballantine Dock sewer, which drains five hundred and ■ sixty-two acres, and delivers four hundred and eighty-five thousand four hundred and sixty gallons each hour; then the Jackson Street sewer, draining three hundred and thirty-one acres, and delivering one hundred and twenty-two thousand eight hundred and fifty gallons each hour; and last, the Freeman Street sewer,, draining eighty-seven acres, and delivering forty-eight thousand six hundred gallons each hour. The total amount of sewage voided by all of these sewers is one million seven hundred and forty thousand and forty gallons each hour, or forty-one million seven hundred and sixty thousand nine hundred and sixty gallons each day.

In addition to the sewage thus entering the river at Newark, it receives the sewage of Paterson, Passaic, and the small villages bordering upon the river above Newark.

The volume of water into which this sewage is discharged varies with the seasons. ' In dry seasons the quantity of the fresh water from the water-sheds which drain into the Passaic river above Newark, is calculated at one hundred and fifteen to one hundred and twenty-five million gallons per day. In addition there is at Newark the water produced by the tidal flo’w-. The tidal wave reaches a -point above Newark, and every six hours the inflow from the bay meets the fresh-water flow of the river and causes a rise in the mean height of the natural flow of the river. Mr. Harrison takes, as I understand him, the mean or average height of the natural 'flow of the river, and the mean or average height of the river at high tide, and has made a calculation of the amount of water in the river above the Centre street bridge at mean high tide, in excess of the water in the river at mean low tide. He computes it at five hundred and ten million gallons. Twice a day this volume of water is bunched up above Centre street bridge, and twice a day, as the tide recedes, flows down past the Centre street bridge. The tidal inflow, as I understand it, arrests the downward flow of the river, mingles with its waters, and together with the six hours’ natural flow of the water down the stream, constitutes the contents of the tidal prism, i. e., five hundred and ten million gallons. The remaining part of the twenty-four hours, viz., twelve hours, the natural flow of the river, in addition to the contents of the tidal prism, passes down. If the contents of the tidal prism were invariable, then each day, according to this calculation, ten hundred and twenty million gallons of water would pass Centre street bridge, which in addition to the natural flow of the river every twelve hours, which in dry weather would be about sixty million gallons, would make a total of ten hundred and eighty million gallons.

Now, the proportionate amount of house sewage which can be discharged intó a stream without creating a nuisance is stated by the engineers to be in the proportion of one to fifteen or one to twenty, and it is stated that a larger proportion of sewage would so foul the stream as not merely to render the waters undrinkable, but actually noxious to the senses.

If the estimate of the amount of all the sewage voided each day along the stream its entire length is correctly estimated at seventy millions of gallons, then, according to this theory, it would require at least fifteen times as many, or eleven hundred and five millions of gallons of water to dilute it. The quantity of water which daily passes Centre stieet bridge in dry weather is, according to calculation, ten hundred and eighty million gallons.

But it is insisted' on the part of the city that the quantity of sewage is overestimated. It insists that the calculation should be based upon population, it being an admitted assumption that each person uses each day one hundred gallons of water, which passes into the sewers. It insists that the population whose sewage drains into the Passaic was not greater than four hundred thousand at the last census, and would produce forty million gallons each day, twenty-eight million gallons only of which, it is insisted, would be drained into the river within the limits of Newark, and a part of this is discharged below the outlet of the projected sewer.

Now, it is probable that the amount of sewage now poured into the river is less than seventy million gallons, and it is certain that the noxious character of the sewage voided into the river at Paterson and other points above, is in a degree destroyed by the purifying work of the nitrifying bacteria before it reaches Newark.

But on the other hand I think that the diluting effects of the tidal water, both as to quantity and movement, is overestimated. In respect to quantity the measurement is made in regard to mean tide. This means that at times there is more and at other times a less quantity of water in the tidal prism. It seems apparent that the point of inquiry is not whether sometimes, or even at most times, there is sufficient water in the river to dilute and remove the sewage, but whether at any considerable time each year there is less than enough to perform this office. The quantity of sewage voided each day is practically unvarying, but the quantity of the water in the river varies with the seasons and with the changing planetary influence upon the tides, or both combined. If the flow is so small for five or ten weeks of each year that the sewage becomes a nuisance, it is no answer to say that it is sufficient for forty-two or forty-seven weeks in the year.

It is again to be observed that the tidal flow is in both directions, and the sewage voided upon the incoming tide is carried up with it until the tide turns, and then it comes down again until it meets another incoming tide, when it is again carried back a' part of the distance it has already traveled, and so on until it reaches the place of discharge into the bay. Therefore, each tidal prism may flow down laden with not only the sewage which has been voided from the sewers within the six or twelve hours, but with sewage previously voided and which has been carried back by the inflowing waters.

In connection with this, the distance which sewage may be carried on one tide and how far it may return was the subject of considerable testimony. The testimony of Mr. Bassett is that it would take several tides to carry sewage to the bay from Newark, upon the assumption that the distance is ten miles. The distance to the point where the sewage passes into the bay is stated by a witness for the defendants to be six miles. If the latter distance is correctly stated, nevertheless I think it more than probable, particularly in dry weather, that it would require more than one tidal recession to clear the river.

At the trial much attention was given to the fact that the tidal water at Newark is in some degree saline. It was shown that salt water was antiseptic and inhibits the growth of bacteria. It was therefore pressed that its presence in the Passaic at Newark serves to assist in disinfecting the discharged sewage.

It is extremely difficult to conclude that the salinity of the Passaic river water will have any material effect upon sewage. Nor is the testimony as to the effect produced by sea water upon sewage emptied into the ocean or bays of much service.

For, according to the uncontradicted testimony of Mr. Bassett, there is only a trace of chlorine at Newark, the proportion of salt in the waters of the Passaic compared with the salt in sea water being as one to one hundred or one to one hundred and fifty.

Without further summing up the details of this line of evidence, the effect of it is to leave an impression that at times of low water the'river is likely to be very foul from the presence of sewage. But I agree with Lord-Justice Turner in Goldsmid v. Tunbridge Wells Improvement Commission, L. R. 1 Ch. App. Cas. 349, and with Chancellor McGrill in Newark Aqueduct Co. v. Passaic, 18 Stew. Eq. 393, that more weight is due to the facts proven in respect to the actual condition of the river than to conclusions to be drawn from theoretical opinions. The testimony of the members of the Passaic river pollution commission and others proves the general filthiness of the river. The natural beauty of the stream has been destroyed by the filth emptied into it from Paterson to the bay. Its banks, which should be a favorite site for handsome residences, have become unfit for residential purposes. A driveway projected to run along its banks was abandoned because of the offensive odors from the foul river.

But while the general foulness of the river is fully proved, the complainant’s case mainly rests upon the fact that the projected sewer will empty its contents in close proximity to its property.

Much of the testimony in the case is directed to the query whether this discharge from this sewer, together with the general condition of the stream, is likely to endanger the health of those upon the premises of the complainant by the dissemination of the germs of disease. The testimony taken upon this point leads me to believe that while sewage containing the germs of certain diseases, if left by receding tides to dry upon docks or boats might be disseminated by currents of air, yet, this result is not so probable or clearly proved as to afford a ground for relief. Neither the theoretical views of the experts are so harmonious nor is the testimony as to the effect of the existing sewers so concurrent as to clearly prove the insistence of the complainant upon this point.

But I think it is clearly proved that, at certain seasons, the discharged sewage will cause a stench which will be very annoying to those near the sewer’s outlet. It is probably true that during those portions of the year when the flow of the river is undiminished by drought, and the weather is cool, the odors from the river, even at the point of the sewer’s discharge, will not be markedly offensive. When, however, the flow of the river becomes diminished by summer droughts, then this diminution of water, coupled with midsummer heat, will undoubtedly cause the exhalation of extremely nauseating odors. I draw these conclusions, not so much from the testimony which exhibits the quantity of fresh water that is likely to flow in the river and the quantity of tidal water which flows and ebbs past the point of discharge of the sewer, and the quantity, character and density of the sewage itself, as I do from what is proved in regard to the effect of similar conditions existing elsewhere along the river, within the limits of the city.

There is, as already remarked, about two hundred and fifty-four feet north from the complainant’s land, the Ballantine sewer The testimony of Mr. Sawyer, the superintendent of Ballantine’s, is that the stench from this sewer is so terrible that they have to close the windows in the engine-room in the hottest weather.

Mr. Walsh, the bridge-tender at the Centre street bridge, two hundred feet south of this sewer, says that the stench is very bad, worse at low tides and in dry summer weather. He says that all along the docks is black slime and mud sticking to the sides, and the stench from it for the last month has been very bad, and when the tide goes down you can see the slime sticking to the sides and the water is very dirty. It is worse in foggy or very hot weather.

Above is the Millbrook sewer, which empties into the river at the Clay street bridge. Mr. Bauer, a bridge-tender at the Clay street bridge, says that there comes from the sewer a foul stench, something fearful, and it has been so for the last two, three, four or six months. He says of course in summer time it is worse than it is in the winter time; that there is not much in the winter, but in the summer the stench is something awful; itjs not fit for a man to stand there. He says “our house on the draw is, I should judge, seventy-five feet from the sewer, and when it gets very bad we have to close the windows, as we will sooner suffer the heat than the smell of the sewer.”

Mr. Radcliffe, a tender of the same bridge on the East Newark end, which is about three hundred and thirty feet from, the mouth of the sewer, says “ that the stench is awful at times, particularly at low tide.” He says “ we close the windows to keep the smell out. When there is no tide to carry it away the sewage stays there for an hour. It is worse in heavy weather when the stench cannot rise.”

Mr. Gray, a real estate dealer, says “that he has noticed a stench come from the discharge of this sewer; that particularly one day he was there, the tide was quite low and there was a good deal of discharge of a black substance, which, as it flowed into the river slowly, without much tide, adhered to the boats or anything else which formed an obstruction in the river. There was a very offensive stench that came from this stuff.”

The Jackson street sewer runs through the property of the Balbach Smelting and Refining Company. Mr. Zahn is the assistant superintendent of the works of that company, and he has averaged twelve hours a day for several years, at the works, near the sewer outlet. He says “ that the contents of the sewer falling into the river cause an unbearable odor, especially at low tides. He has often smelt it for two squares and he has seen bushels of excrement held up by the boats.”

The City Dock sewer empties into the Passaic river, about pne hundred and fifty feet from the superintendent’s office of the People’s Power and Light Company. Mr. Conlin, who has been employed as a clerk by the company for four years, says that the smells from that sewer are very bad at times, particularly on foggy, wet, muggy days; that it is worse in hot weather, and some days they would have to close the windows and shut the doors on account of the smell.

Mr. William D. Hunt, one of the first Passaic river pollution commissioners, after stating the general foul condition of the river and that sewage was visible floating in the water, proceeded : “At the outlet of many of the sewers, at or near the outlet, there was a stench of a sewage character; the stench could not be mistaken.”

Six of these witnesses are employed permanently near the point of discharge of these sewers. Their testimony cannot be refuted by that of witnesses who visited the sewer at a certain time in June, and who testify that at that time they did not scent any disagreeable odor. At many times, probably at most times, there was no very perceptible foetor. I have no doubt whatever that at times, at low water and hot weather, there was a stench of the most offensive description. All these witnesses testify to the existence of the very results which the proved conditions are calculated to bring about. The undiluted particles of sewage swept slowly back and forth by the tides, clinging to wharves and banks and boats, and left exposed by the retiring tides to be beat upon by a midsummer sun, would naturally stink.

Now, if it be true that the sewage from the present sewers causes these stenches at or near their mouths, it seems demonstrated that tbe proposed sewer will cause the same result, for there is nothing in the plans of construction of the latter sewer, at its mouth or elsewhere, which differs in any substantial particular from the construction of the existing sewers. And I may remark in respect to the perforation of the present sewer along its route, of the air-holes, that I do not perceive that it will in any substantial degree change the character, of the sewage as it will be discharged into the river.

The condition of affairs thus presented is this: The defendants propose- to pour in upon the property of the state (the Passaic river being a tidal stream) that which will create, during certain periods of each season, a stench which will make the lives of those upon adjoining property at times certain to recur again and again, extremely disagreeable.

If the premises of the complainant were used for residential purposes, the nuisance would be glaring. It is undoubtedly true that what would be a nuisance if near a dwelling may not be a nuisance if in a locality devoted entirely to business purposes. But, if the lives of Mr. Sayre and his employes are made uncomfortable during the working hours of the day by noisome smells, the result will be a diminution of the value of the property, devoted to the business necessarily transacted upon these premises. Any condition which renders the lives of the operatives substantially more unpleasant in the operation of the business, makes its transaction .more difficult, and must result in a depreciation in the value of the property devoted to such business. Now, it seems to me, that if a private person should discharge, or threaten to discharge, on lands adjoining the premises in question, what the city of Newark proposes to discharge thereon, he would at once be enjoined from creating or maintaining a nuisance.

It remains to inquire whether the fact that this is to be done by a municipality, together with the fact that the place of discharge is a tidal stream, relieves the proposed discharge from the character which otherwise would be attributed to it.

It is to be observed at this point that the question in hand is not complicated by the existence of any statutory authority conferred upon the city of Newark to drain its sewage into the Passaic river. The question, therefore, whether it is within the scope of legislative power to authorize a municipality to create or maintain a nuisance, which amounts to the faking of private property without compensation, is not here presented. There is no legislation giving a special authority to the city of Newark to drain into the Passaic, and a general grant of power to construct sewers does not justify the creation of a nuisance. Attorney-General v. Leeds, L. R. 5 Ch. App. 583; Seifert v. City of Brooklyn, 101 N. Y. 136; Haskell v. New Bedford, 108 Mass. 208, 215. The extent of the right of the city, therefore, to drain its sewage into the Passaic river, must be measured by the application of general legal rules.

There is no doubt that in a degree riparian owners and municipalities may use adjacent bodies of water to dispose of and carry away refuse and impurities. Gould Wat. § 220 ; Kuehn v. City of Milwaukee, 92 Wis. 263; Merrifield v. Worcester, 110 Mass. 216.

But, while the city may empty some sewage into a stream of water which flows through it, it cannot do so to an extent which will create a nuisance. Nor does it matter whether the stream is tidal or non-tidal. This is illustrated by the following cases, in some of which the waters were tidal and in others non-tidal: Attorney-General v. Leeds, supra; Attorney-General v. Birmingham, 4 K. & J. 528; Attorney-General v. Hackney Local Board, L. R. 20 Eq. 626; Goldsmid v. Tunbridge Wells, L. R. 1 Eq. 161; S. C. on appeal, L. R. 1 Ch. App. 349; Attorney-General v. Colney Hatch Lunatic Asylum, L. R. 4 Ch. App. 146; Attorney-General v. Acton Local Board, L. R. 22 Ch. Div. 221; Morse v. Worcester, 139 Mass. 389 ; Chapman v. City of Rochester, 110 N. Y. 273 ; State v. City of Portland, 74 Me. 268 ; Hayes v. Village of Dwight, 150 Ill. 273.

Nor does the advantage to be derived by the public from the construction of the proposed sewer, nor the increased expense of another system of sewerage which the city may be compelled to substitute for the proposed one, afford any ground of excuse for inflicting a substantial injury upon private property. Therefore, neither the testimony in respect to the need for this sewer to drain, in connection with house sewage, the surface water from an area which is now imperfectly drained, nor the testimony in respect to the ease with which this purpose can be accomplished by the construction of other sewers, can be seriously regarded. While a sewer system of the city will not be interfered with for fanciful reasons, yet any substantial interference with private rights will be restrained. Susquehanna Fertilizing Co. v. Malone, 73 Md. 268, 282; Attorney-General v. Birmingham, supra; Attorney-General v. Colney Hatch Lunatic Asylum, supra.

Again, it is suggested that the new sewer is designed to merely assist the work of the existing sewers. A part of the sewage which now flows through the Ballantine Dock sewer and a part which now flows through the City Dock sewer will be delivered through the new sewer, together with the surface water from the flooded area already mentioned. It is, therefore, insisted that no more house sewage will be emptied into the river after than before the construction of the proposed sewer. This insistence is accurate, keeping out of view the natural increase of sewage produced by increase in population. But the complaint of the Marcus Sayre Company is that the sewage, instead of'being discharged at a distance from its property, the nearest of which is two hundred and fifty-four feet on the one side and two thousand feet on the other, will be brought within fifty-five feet, and that, therefore, they will be thus subjected to a greater degree of annoyance by reason of the proximity of their land to the new place of discharge.

It is again urged that the injury is anticipated, and that it should appear that the nuisance actually exists before an injunction goes. Wolcott v. Melick, 3 Stock. 204; Duncan v. Hayes, 7 C. E. Gr. 25; Newark Aqueduct Co. v. City of Passaic, 18 Stew. Eq. 393; Attorney-General v. Manchester, L. R. 2 Ch. 87 (1893).

The rule to be applied to anticipated nuisances is the same as that applied to existing nuisances. It must be clear that the nuisance will exist in the one instance just as it must be clear that it does exist in the other. In most cases of anticipated nuisances the particular condition which it is alleged will cause a nuisance differs in some respect from any other condition which has already caused a nuisance. The result to be apprehended from the conditions to come into existence can only be prejudged by theoretical opinions, and such opinions are seldom so undisputed and clear as to lead to a high degree of certainty. But as like causes produce like results, it may be regarded as certain’ that if a certain condition of existing affairs has produced a nuisance, the same condition if reproduced will with certainly cause a like result.

“ If,” says Chancellor Williamson, in Wolcott v. Melick, supra,the erection contemplated must, from its character, necessarily be a nuisance to the complainant, and his legal remedy is not adequate, the court will enjoin it.” In Duncan v. Hayes, 7 Q. E. Gr. 25, Chancellor Runyon, while refusing to enjoin the erection of a steam saw-mill because it was not clear that the business would in fact be a nuisance to the complainant, said: “ If the injury was certain or without reasonable doubt I should not hesitate to grant the injunction.” The case of Newark Aqueduct Co. v. Passaic, supra, was an application for a preliminary injunction, and the question whether the injury anticipated would be realized was the subject of conflicting expert testimony.

In Attorney-General v. Manchester, supra, the complainant failed to make out that there was a probability, much less a high degree of probability, that the apprehended danger (infection from a small-pox hospital) would in fact ensue.

In Morgan v. Town of Binghamton, 102 N. Y. 500, “the injury described in the findings,” say the court, “ was problematical, distant, merely possible and for three years yet it is certain no evil will result.”

In Hayes v. Village of Dwight, supra, and in Robb v. Village of La Grange, 158 Ill. 21, the threatened construction of sewers by municipalities was enjoined without any judicial establishment in an action at law of the prospective nuisance, because it was clear that the nuisance would follow the use of the sewer.

As already remarked, I regard it as entirely clear that the discharge here threatened will create a nuisance. I think it equally clear that it will specially injure the property of complainants. As it will be a continuing injury it is regarded as irreparable at law. It is also included within a class of nuisances which, while it injures in a degree many owners of property in common and may even be indictable, is regarded as inflicting a special injury upon each property. Wood Nuis. §§ 602, 608.

I will advise a decree enjoining the proposed discharge of sewage.


source: Caselaw Access Project

author: Reed, V. C.

license: Public Domain

text:
    Thomas Prendergast, executor of Cecelia Stanton, deceased, v. Catherine Walsh et al.
    [Filed March 23d, 1899.]
    1. Testatrix gave to her three sisters, “provided they are all alive, or to the survivors of them, whatever of my money now on deposit ” in four banks in New York City (naming them), “ which may be on hand and not otherwise disposed of, share and share alike.” During her life the testatrix drew her money from the four New York banks and deposited it in another bank, where it remained until her death. — Held, first, that the gift was specific, and second, that it was not adeemed.
    2. Testatrix died leaving one sister and the children of one of two deceased sisters surviving her. — Held, the surviving sister took in exclusion of the grandchildren.
    The bill in this cause is filed by an executor for instructions. Cecelia Stanton, the testatrix, died on the 22d day of August, 1895. Her will was made on the 16th of April, 1890; in it was the following:

      “Item. -I give and bequeath unto my beloved sisters, Catherine Walsh, Julia Kerrigan and Mary Eoolan, provided that they are all alive, or to the survivors of them, whatever of my money now on deposit at the Emigrant Bank in Bleecker street, New York, and the Emigrant Bank in Chambers street, New York, and in the Bowery Savings Bank, New York, and in the Wall Street Savings Bank in New York, which may be on hand and not otherwise-disposed of, share and share alike.”
    When she first executed her will she had the following bank deposits: $583.20 in the Seaman’s Bank for.Savings, on Wall street, New York City; $913.44 in the Emigrant Industrial Bank, on Chambers street, New York City; $199.11 in the Bowery Savings Bank, New York City, and $814 in the Bank for Savings, in Bleecker street, New York — a total of $2,509.75.
    On January 14th, 1895, she dréw from the Wall Street bank, $583,20; from the Chambers Street bank, $1,055.32; from the Bowery bank, $227.57, and from what was formerly the Bleecker street bank, $883.22 — a total of $2,749.31. No deposits had been made between April 16th, 1890, the date of the will, and January 14th, 1895, and the increase in the amount in the last three of the banks mentioned arose from interest allowed upon the deposits.
    Margaret Cushing accompanied the testatrix when she went to the four banks and drew these deposits, and to her testatrix said that she was going to deposit the money in the Hoboken bank — she thought it would be safer there. She did not deposit it at once, because she said she would not get any interest on it, and she would wait until the 1st of April. Some time after she took the money to Delia M. Demman in a satchel, and asked her to count it. She said she would keep a small amount for her own use, and asked Delia to place the balance in a paper and mark on the outside the amount of money in the paper, and that she would take it to the Hoboken bank, and Delia did as she was directed.
    Testatrix afterwards told Delia that she had taken the money and deposited it in the Hoboken bank, and when they asked her how much she had to deposit, she said she did not exactly know, and the bank officer then said, “ Here is the amount marked on the package,” referring to the figures which Delia had made. Her bank-book shows that she deposited in the Hoboken Bank for Savings on April 1st, 1895, $2,795, which remained there until her death, interest having accrued to the amount of $23.46. She seems to have added to the amount she drew from the New York banks enough to increase that amount from $2,749.31 to $2,795. But that the latter sum included all the money she drew out in New York, I have no doubt, for this money and a mortgage for $300 made up substantially her entire estate.
    The testatrix left her surviving one sister, Catherine Walsh, and four children of a deceased sister, Julia Kerrigan. The four children of Julia Kerrigan claim that the money in the hands of the executor is not the same money which was bequeathed to the surviving sister of testatrix, but is general assets of the estate as to which Cecelia Stanton died intestate, and insist that it goes one-half to the surviving sister and one-half to the four children of the deceased sister in equal shares.

      Mr. James A. Gordon, for the executor.

      Messrs. A. Q. Keasbey & Sons, for the defendants.
   Reed, V. C.

The gift of the money was specific. It was a gift of the money in the several banks at the time the will was made, which should not be otherwise subsequently disposed of by the testatrix. It was, therefore, a bequest of a specific thing. Collins v. Collins, L. R. 12 Eq. 445; Conly v. Greene, Ir. R. 5 Eq. 430; Larkin v. Soloman, 3 Lem. (N. Y. Sur.) 270; Towle v. Swasey, 106 Mass. 100.

The important question is, whether the legacy was adeemed by the testatrix, and therefore the thing bequeathed was not in existence at the time of the death of the testatrix.

It is undoubtedly true that a general deposit in a bank creates a debt from the bank to the depositor. The bank is not bound to preserve the money in specie, and it can be paid by the delivery of any money of equal amount.

It is also true that a testamentary gift of a debt due to the testator is adeemed if the debt is paid to the testator during his life.

But it seems to me that while such a deposit creates a debt, yet the gift of the amount of such deposit as money or cash differs from the gift of an ordinary debt. It will pass by a gift of all the testator’s ready money or cash. Sir Launcelet Shad-well in the case of Parker v. Marchant, 1 Younge & C. 290, 307 (20 Eng. Ch. Rep.), affirmed by Lord-Chancellor Lyndhurst on appeal, 1 Phil. 356 (19 Eng. Ch. Rep.), said: “Undoubtedly an ordinary balance in the banker’s hands is, in a sense, a debt due from him; certainly he may be sued for the debt. But it may be equally true that in a sense it is ready money. * * * The term debt, however correct, is not colloquially or familiarly applied to the balance at a banking-house. No man talks of his banker being in debt to him. Men speaking of such a subject say that they have so much in their banker’s hands, a mode of expression indicating virtual possession, than a right to which the law. applies the term chose in action.”

To the same purport are the cases of Mann v. Executors of Mann, 1 Johns. Ch. 231, and Beck v. McGillis, 9 Barb. 35, 59. In the last case, the court says: “ By the bequest of money, of which the testator died possessed, to Mrs. McGillis, she became entitled to the cash, using the popular sense, which at the time of his death the testator had in his possession or deposited in bank, but nothing else.”

In the present case the intention of the testatrix was, not to give a mere thing in action. What she gave was the money in the banks, using the words in their popular sense.

It is true that the money did not exist in specie and would not again be delivered to her or her personal representatives in specie, yet, having put money there, which was still there as money, liable to be drawn as money, so she designated it as money. The thing she bequeathed she drew from the bank. It remained the identical thing bequeathed until disposed of in some way by her. She could have disposed of it by consuming it in living or turning it into other property, or devoting it to a purpose inconsistent with the bequest. She did neither of these things, but, on the contrary, took the specific thing which she got from the bank and kept it until April 1st following, and then, with a slight addition, placed it in the Hoboken bank. While by this deposit in this last-named bank she lost the right to have the same money again in specie, she retained the right to have it as money or cash. If thereafter it was properly designated as money or cash it must be regarded as a part of the same cash which she had taken from the four banks. If the money remained practically the same money, then the removal of it from the place of its deposit did not amount to an ademption. The place of deposit was merely used as descriptive of the thing bequeathed. It was used to identify the particular money given, and it is entirely settled that where the'place is merely descriptive the removal of the things to another place is immaterial. Theob. Wills 130.

For these reasons I have concluded that this case differs from those which have dealt with gifts of debts due the testator which have been paid to the testator and re-invested. Those gifts wére of a chose in action and not gifts of money which remained as. such at the time of the death of the testatrix. I conclude, therefore, that the legacy was not adeemed.

There is another suggestion made in behalf of the children of Julia Kerrigan, the deceased sister. It is that Julia Kerrigan, although dying before the testatrix, yet our statute to prevent lapses operates to transfer her share to her children. But it is manifest that the date at which the survivorship was to exist was the period of distribution, which, in this instance, was the date of the death of the testatrix. The death of Julia Kerrigan before that event defeated her legacy. The will of the testatrix gave a share only to a sister who survived her. In the face of this testamentary intention, the statute concerning lapses, by its own provision, became inoperative.

The question whether the interest which has accrued upon the funds which were in the banks at the time of the execution of the will is a part of the specific bequest has become of no importance, for the payment of the expenses of administration has left less than the amount on deposit at the time of the execution of the will in the hands of the executor.

I conclude, therefore, that $2,420.75 of, the amount in the Hoboken bank was the specific thing bequeathed to the three sisters, and such part of it as remains now belongs to Catherine Walsh.


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    John H. Scudder, administrator, v. Trenton Saving Fund Society.
    [Filed April 10th, 1899.]
    A deposit in a savings bank made in the name of “ W. P. S., Surrogate,” can be drawn by the administrator of W. P. S.
    This is a bill filed to collect a sum of money which represents the principal and interest upon certain deposits made by William P. Sherman, then surrogate of the county of Mercer.

      Mr. Barton B. Hutehinson, for the complainant.

      Mr. John A. Montgomery, for the defendant.
   Reed, V. C.

Mr. Sherman, in the year 1851, while he was surrogate of Mercer county, made certain deposits in the bank of the Trenton Saving Fund Society, in the name of William P. Sherman, surrogate. The depositor died leaving a balance undrawn. The bank, on account of the official suffix to the depositor’s name, have felt that it was unsafe to pay the amount upon the check of the personal representative of the depositor; hence this bill by the present administrator de bonis non of the deceased depositor.

The bill seeks to have the deposit entry reformed by canceling the official addendum to the name of the depositor, and to have a decree that the bank pay upon the check of the complainant. Nothing appears in the ease save the mere facts thus stated. It does not appear that at the time of the several deposits there was any trust fund under the control of the surrogate. Nor does it appear that there is any statutory provision for an official fund to be held by the surrogate, either as surrogate or as an officer of the orphans court. It is impossible, then, to conceive who could be beneficially interested in the said fund apart from the depositor himself.

The appendage to the name of the depositor, I think, was intended as a personal method of marking this money as part of the income of his office, and so to segregate it from other money, or it may have been employed to indicate the position the depositor then held without any other significance. Whichever notion induced the conduct of the depositor, in my judgment the addendum was merely desariptio personae. Such judicial sentiment as I have discovered is to the effect that such a suffix does not imply that the money that he deposited was held in trust. In the case of Swartwout v. Mechanics Bank of New York, 5 Den. 554, the plaintiff had made a deposit in the defendant’s bank in the name of Samuel Swartwout, collector. His term as collector of customs expired, and he drew a check as late collector, which the bank refused to pay, upon the ground that it was an official deposit and belonged to the United States. But the court held that, in the absence of any statute requiring the collector to make a deposit of official funds in a bank, it was to be regarded as a mere personal deposit. The court said : “A county treasurer, sheriff, surrogate or such other officer opens an account with a bank with his addition, and keeps a separate account in such capacity, most clearly lie can collect sucli deposit in his own name, and the bank would not be permitted to show that the moneys belonged to the county.” In Powell v. Morrison, 35 Mo. 244) it was held that the words “ sheriff of St. Louis county ” added to the name of a maker of a promissory note, was no notice to a holder to whom the payee had endorsed it that the note was drawn upon trust funds. So in Eyerman v. Second National Bank of St. Louis, 13 Mo. App. 289 ; affirmed, 84 Mo. 408, it was held that the words “county treasurer” added to the name of a depositor raise no presumption that it belongs to the county.

But if the addendum implied a trust, it would not defeat the right of the personal representative of the depositor to withdraw the deposit. The trust which inhered in the depositor, upon his death, passed to his personal representative, who would be bound to administer all the assets of the deceased as trustee of whatever kind, and to administer the trust with which those assets are charged. 1 Perry Trusts § 264. In Boone v. Citizens’ Savings Bank of the City of New York, 84 N. Y. 83, the facts were as follows: Susan Boone deposited in the bank $500, receiving a pass-book in which was the entry “ The Citizens’ Savings Bank in account with Susan Boone, in trust for Thomas Boone.” The entry was so made at the request of the depositor. After her death the bank paid the amount to her administrator. An action was afterwards brought against the bank to recover the same amount, by the administrator of Christopher Boone, the cestui que trust, who had also died. The court of appeals held that the payment to the administrator of the depositor was valid. Judge Finch, in delivering the opinion of the court of appeals, said: “ They [the bank] received the money as bailees, agreeing to pay to Susan Boone, trustee. What the trust was they neither knew nor were bound to know. That was a matter wholly between the trustee and cestui que trust, at least until the latter gave notice to the bank of a hostile claim. * * * We are of the opinion that upon the death of Susan, her rights as trustee devolved upon her administrator. * * * When therefore he appeared at the bank and produced his letters of administrator and the pass-book, which, by the contract, was evidence of his right to withdraw the deposit and demand its payment, the bank had no alternative. It had no right to inquire into the character of the trust, and owed no duty to the beneficiary until the latter, by notice or forbidding payment or demanding it for himself, created, on the part of the bank, such a debt.”

I am of the opinion, therefore, that the fund now in question is not to be regarded as a trust but as an individual deposit of Mr. Sherman. But if it should be presumed to be trust property, yet, until some beneficiary asserts a claim upon the bank, the administrator of the depositor stands in thé place of the depositor and the bank is bound to pay him, as it would have been bound to pay the depositor himself, if living.

While I have expressed my views upon the question mooted, as the suit seems to be an amicable one, and my views may be of service, yet I regret that I can make no decree which will judicially settle the rights of the parties in this suit. My inability to do so springs from the absence of any feature in the complainant’s claim sufficient to confer jurisdiction upon a court of equity. Under the views I have expressed the claim against the bank is one strictly legal. I am therefore constrained to dismiss the bill.


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    John L. Suydam, executor, &c., v. Isaac S. Voorhees et al., executors of David M. Perrine, deceased.
    [Filed April 10th, 1899.]
    1. Under our act to prevent lapsing (Gen. Slat. p. 3763 $ 34), when a legatee is a child of the testator and dies before the testator, his children take a vested interest in the legacy, free from the debts of their father.
    2. An executor who pays a debt of his testator with his own funds, will be subrogated to the right of the creditor.

      3. A devisee of a life interest in lands of the testator, who pays with his own funds a debt of the testator, which debt is either'charged upon the land by the will or payable out of the land by statute, will be subrogated to the creditor’s right.
    4. A general direction to pay debts is a general charge of the debts upon the testator’s land, but leaves the personal estate the primary fund for such payment.
    5. Whether, upon a bill by a creditor to enforce such a charge, this court will take an account of the personal estate, or leave the orphans court in which the account has been filed to complete it, will depend upon circumstances.
    The complainant is the executor of Willard Perrine, deceased, who was one of the executors of the will of his father, David M. Perrine, deceased. The complainant, as the executor of Willard, seeks to be subrogated to the position of a creditor of the estate of David M. Perrine, whose debt Willard paid after the death of his father; and seeks to have certain land, the title to which is now in the heirs of David M. Perrine, sold to pay the amount of the said debt.

      Messrs. A. H. & T. Strong, for the complainant.

      Messrs. Voorhees & Booraem, for the executors of David M. Perrine.

      Mr. Abraham V. Schenck, for the heirs-at-law.
   Reed, V. C.

The first question is, whether Willard Perrine paid the debt of the estate of his father with his own money, or whether he paid it out of the assets of his father’s estate.

The second question is, if he paid it with his own money, is his executor entitled to be substituted in place of the creditor whose debt was so paid.

The third question is, if the executor of Willard is entitled to be subrogated, will this court in this suit order the said debt to be raised by a sale of the real estate which belonged to the deceased debtor.

The first question is to be decided upon the following proved facts: David M. Perrine, the father of Willard, died in April, 1895. In his will he named as his executors Isaac S. Voorhees, Charles H. Edwards and his son Willard. David M. Perrine, at the time of his death, owed his brother, Redford Perrine, two notes and a check, together amounting to the sum of $4,883.88. In May, 1895, or soon after the death of David M. Perrine, Charles P. Perrine, another brother of David M. Perrine, died, leaving in his will a legacy of $8,000 to David M. Perrine. On August 6th, 1896, the executors of Charles P. Perrine paid to Willard Perrine, who was then one of the executors of David M. Perrine, the amount of the legacy left to David M. Petrine. They did it in this way: they turned .over to Willard a mortgage for $5,000, another mortgage for $1,000, which mortgages had been held by Charles Perrine, and, after deducting the amount of the collateral tax on the legacy, paid the remainder in cash. On the same day Willard paid Redford Perrine the amount of the debt he held against the estate of David M. Perrine. He did this by assigning to him the $5,000 mortgage received from the executors of Charles P. Perrine, receiving in cash from them the difference between his debt and the amount of the mortgage.

The executors and heirs of David M. Perrine insist that the .legacy of $8,000 which had been left by Charles Perrine belonged to the estate of David M. Perrine, and, therefore, when Willard paid the debt due to Redford Perrine, he paid it out of the assets of the estate of which he was one of the executors.

The complainant, on the other hand, insists that David M. Perrine, the legatee, having died before his brother Charles, his legacy of $8,000 went to Willard, the son of David, and so Willard paid the debt with his own money. Which of these counter-contentions is the true one is the first question to be answered.

By the common law, the legacy to David M. Perrine would have lapsed. It is now saved by our statute. P. L. of 1887, Gen. Slat. p. 3763 § 34. This is the language of the act: Whenever any estate of any kind shall or may be devised or bequeathed by the testament and last will of any testator or testatrix to any person being á child or other descendant of such testator or testatrix, or being a brother or sister or any descendant of a brother or sister of such testator or testatrix, and such devisee or legatee shall, during the life of such testator or testatrix, die testate or intestate, leaving a child or children, or one or more descendants of a child or children who shall survive such testator or testatrix, in that case such devise or legacy to such person so situated as above mentioned, and dying in the lifetime of the testator or testatrix, shall not lapse, but the estate so devised or bequeathed shall vest in such child or children, descendant or descendants of such legatee or devisee, in the same manner as if such legatee or devisee had survived the testator or testatrix and had died intestate.” Willard took .the $8,000 legacy bequeathed to his father by force of this statute In my judgment, he took it free from any claim except such as might have existed in favor of his father. The exception is made because of the case of Denise v. Denise, 10 Stew. Eq. 163, in which Vice-Chancellor Van Fleet held that if the legatee named was indebted to the testator, the child of the legatee took the legacy subject to a liability to have the legacy diminished to the amount of the debt. It was said in the opinion in that case that a statutory legatee was a mere substitute for the testamentary legatee, and as such bore the burdens and was subjected to the same equities which would have existed against him. The burdens meant were those which arose out of the relations which existed between the testamentary legatee and the testator. This is clear from this language of the opinion: “ It [the statute] should be held to put the substitute legatee in the place of the parent, and to give him just what the parent would have been entitled to, subject to the same equities that his parent would have been subjected to, and bound by the same rules of justice that the parent would have been bound by. He must take it in the same manner as his parent would have taken.” The last sentence contains the pith of the rule as between the testator and the statutory legatee. The latter tabes what the testamentary legatee would have taken. It does not mean that the deceased legatee takes an interest in the legacy which passes through him to his child, and which, in passing, is liable to be seized upon by the creditors or the personal representatives of the father. Such a meaning would be .contrary to the words of the act. Under the statute there is no vesting in the father for an instant. The legacy, which would have vested in the father had he lived, is by the statute vested in the first instance in the son. In respect to it there is nothing for the personal representatives of the father to administer nor for his creditors to reach.

I am aware that it is held under the English statute to prevent lapses (1 Vio. e. 86 § 38) that the property given belongs to the deceased legatee, as if he had survived the testator. Johnson v. Johnson, 3 Hare 157 ; In bonus Parker, 1 Swab. & Tr. 523; Re Mason’s Will, 84 Beav. 494.

So, also, it is held that if a married female devisee dies before the testator her husband is entitled to his curtesy in her estate. Eager v. Furnival, 17 Ch. Div. 115. But the language of the sections relative to lapses in the English act radically differs from the text in our act. The former provides that “ when the devisees or legatees shall die in the lifetime of the testator, leaving issue, and any such issue of his person shall be living at the time of the death of the testator, such devise or bequest shall -not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator.” By the express terms of the English act, it is perceived, the life of the devisee is to be regarded as prolonged until the devise of bequest can vest. The devise or legacy shall take effect as if the death of the devisee or legatee had happened after the death of the testator. The statute says no more. Of course, therefore, if the death of the former had not occurred until after the death of the latter, the devise or legacy would have vested in the former. And as the statute stops with the provision that the life of the former shall be, for purposes of construction, prolonged until after the death of the testator, the vesting in him, must be presumed to occur. There is no express provision in the English act for vesting at all, and so the construction given to the act was the only possible one. “The act,” says Mr. Jarman,

“does not substitute the surviving issue for the original devisee or legatee, but makes the gift of the latter take effect notwithstanding in the testator’s lifetime, in the same manner as if his death had happened immediately after that of the testator. The subject of the gift therefore .will, to all intents and purposes, constitute the disposable property of the deceased donee, and as such, will either devolve upon his representatives or follow the disposition of his will.”

The fact of the death of the legatee before the death of the testator is in our act quite different. The provision is that the legacy shall not lapse, but shall vest in such child or descendant in the same manner as if such legatee had survived the testator, and had died intestate. The concluding words are employed merely to fix the manner in which the legacy shall vest in the statutory substitute. The legatee is not to take as if he had survived the testator, nor does the statute create merely a legal presumption that the legatee survived the testator without more, as in the English act, but the sole provision in our act is that the legacy shall vest in the child or descendant as if the legatee had survived the testator.

' But our act concerning lapses is not peculiar to our legislation. The statute of New York State contains a provision similar to ours, the only difference being the use of the words “as if” in, the New York instead of “in the same manner as if” in our statute; so that the New York statute reads “shall vest in such child as if such legatee had survived the testator,” while in ours it is “in the same manner as if the legatee had survived the testator.” The words “ as if” and the words “ in the same manner as if” mean exactly the same, and the two statutes are, for the purpose of construction, exactly alike. In the case of Cook v. Munn, 12 Abb. N. Cas. 344, J udge Larrimore gave a construction of the New York statute in respect to whether the widow and creditors of a deceased legatee had an interest in the estate or whether it vested absolutely in his children. He held the latter.

The same statute has been in force in Maryland since 1810, and in Glenn v. Belt, 7 Gill & J. 362, it, was held by the court •of appeals of that state that the executor or administrator of the named legatee could not take as assets that which never could have been the testator’s or intestate’s, and that the testator or intestate took no interest in the legacy. This construction was followed in Wallace v. Du Bois, 62 Ind. 153. Alabama has the same statute, and in Jones v. Jones, 37 Ala. 646, the supreme court of that state, reversing a chancellor, held that the legacy passes directly to the surviving children of the legatee, and does not vest in the administrator of the deceased legatee. By reason and authority, therefore, the $8,000 legacy at the time it was paid was the property of Willard, and therefore Willard paid the debt of his father’s estate with his own money.

The next question is, did he by such payment become entitled ■to be substituted for the creditor whose debt he thus paid ? If he did, then his executors can enforce against the estate of his father that claim in the same manner as he himself could if living.

It is entirely settled that one who volunteers to pay another’s •debt has no claim to subrogation, but if he has an interest which is menaced by the existence of the debt, he is relieved of the ■character of a volunteer. Nor does the quantity of the interest which is likely to be destroyed or impaired by the existence of -the debt matter. If he has any palpable interest which will be protected by the extinguishment of the debt, he can pay the debt and be entitled in equity to hold and enforce it just as could the original creditor. A tenant for years who pays a mortgage upon the leased premises will be subrogated. Hamilton v. Dobbs and Robinson, 4 C. E. Gr. 227. A widow who discharges .a lien on the estate of which she is dowáble will be subrogated to the right of the lienor. Woods v. Wallace, 30 N. H. 384. A devisee (Redmond v. Redmond, 63 N. C. 242) or an heir (Chapin v. Sullivan, 128 Ind. 50) who pays a debt to protect his interest will be subrogated. A discharge by certain legatees of a judgment against the estate will entitle them to substitution .-to the position of the judgment creditor. Mitchell v. Mitchell, 8 Humph. 359. Instances in illustration of the general rule above stated might be extended indefinitely.

Now, in the will of David M. Perrine, he devises to his son Willard the use of the homestead farm of eighty-one acres, together with a ten-acre wood-lot, during his natural life, subject to the maintenance of his mother during her life, and directs that after the death of Willard such lands be equally divided between the lawful heirs of Willard, and if Willard should die without leaving any lawful issue, then the said lands to be equally divided between the lawful heirs of the testator. This land was liable to be sold for the payment of the debt of Redford Perrine against the estate of his father. Willard, by the payment of this debt, therefore, became entitled to be substituted for the creditor.

But he is possessed of a right of subrogation upon another ground. He was one of the executors of his father’s will, and the rule is entirely settled that an executor who advances money to pay his testator’s debts gains individually a right to be subrogated. Woolley v. Pemberton, 14 Stew. Eq. 394, 397; De Concillio v. Brownrigg, 6 Dick. Ch. Rep. 532. So far, therefore, as concerns the prayer of the executors of Willard to be put in the same position as the creditor whose debts Willard paid, the right to relief is clear. But they seek further relief, and that is, being substituted to the position of Redford Perrine, the creditor of the estate, that this court will order the real estate of the deceased, the title of which is now in the heirs of David M. Perrine, to be sold for the payment of this debt.

In Edwards v. McClave, 10 Dick. Ch. Rep. 151; affirmed on appeal, 10 Dick. Ch. Rep. 822, Vice-Chancellor Emery held that a suit by a creditor of an intestate whose claim had not been admitted by the administrator or established by judgment, would not lie in equity, for the purpose of charging the debt upon the lands of the intestate, and directing a sale thereof; that the remedy was an action at law under the statute. In this case, however, there is a general charge of debts upon the testator’s real estate. In his will, the testator directs that his debts be fully paid and satisfied as soon as conveniently can be after his decease. The effect of this direction was to charge the debts of the testator upon his real estate. Theob. Wills 671; Hawk. Wills 282; Shreve v. Shreve, 2 C. E. Gr. 487. This charge of the debt upon the land gives rise to a right in the creditor to enforce, in this court, the equitable lien thus created. 3 Pom. Eq. Pur. 1247.

But a general charge of debts upon the land of the testator does not relieve the personalty from its primary liability to answer for such debts. Therefore the land is liable for the whole of this debt only in case the personalty is absorbed in liquidating the other debts. Before the land can be sold to pay the whole of this debt, it is essential that it should be determined whether all of the personalty had been applied to the payment of other debts, or if not, then what amount remains to be applied to the payment of this. It appears that the two surviving executors of David M. Perrine filed an account with the surrogate of Middlesex county, which account was approved by the orphans court of that county on October 26th, 1897. Mr. Edwards is now the only surviving executor of David M. Perrine, and he says the account is not final, and that there is one detached property still unsold. There is also a lot which has been sold since the account was filed to one George R. Thomas for $231.77, and there were two other lots sold to William T. Perrine, one for $131 and the other for $100, which are not in the account. The executor who seems to have transacted all the business of the estate is Mr. Voorhees, now deceased, ánd Mr. Edwards, the surviving executor, can give little information aside from what he heard from his colleague. He says that he was informed that Mr. Voorhees sued William T. Perrine for the consideration to be paid for the $100 lot and got a judgment, Now, the question is whether a settlement of these matters, and the amount of the personalty remaining in the hands of the executor to be applied to the present claim, should be left to the orphans court, which has a ready taken jurisdiction. The heirs of David M. Perrine, by a cross-bill, ask for an accounting by his executors. The prayer' for this relief was mainly induced, without doubt, by the opinion that the $8,211 received by Willard from the executors of Charles Perrine were assets of the estate of David M. Perrine.

So far there is no ground for an accounting. The matter still unaccounted for is the unsold lot, and the consideration for the lot sold to George R. Thomas and the two lots sold to William T. Perrine. The orphans court can deal with these'matters, and after having acquired jurisdiction this court will not seize upon the litigation for any reason now apparent. I do not know that this will occasion any more delay .than if the accounting was removed into this court. If it does Willard’s executors have no. cause for complaint. If Willard had permitted the claim which he paid to be proved against the estate the entire matter would now probably be ready for settlement in the orphans court. By holding the debt unproved against the estate for the purpose of protecting his interest in the homestead property, he has made this additional proceeding by his executors necessary.

I will, therefore, not order an accounting now, but will make a decree for subrogation, with leave to the complainant, if the accounts of the executors are not finally settled in the orphans court within three months, to apply for a decree for. an account in this case. When the accounting is completed, if completed in the orphans court within that time, then to apply in this suit for an order to sell the lands to pay the amount remaining due after the application of such balance to the Bedford Perrine debt. I assume that there was an order taken to bar creditors.


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    Peter M. Gordon, executor of Cornelia Jane Van Deventer, v. Walter H. Jackson et al.
    [Filed April 17th, 1899.]
    1. "Where a testatrix provides “Sixth. The remainder of my estate I bequeath to my first husband’s stepmother and her children. Her name is Rebecca Hand” — Held, that in the absence of any indication in the will that the testatrix intended that Rebecca Hand should take a life estate and the. children the remainder, they all took concurrent interests.

      2. Rebecca Hand and two of her five children died before the testatrix. — ■ Held, that the share of Rebecca Hand lapsed, but the shares of the deceased children went to the other members of the class.
    This bill is filed to obtain the construction of the will óf Cornelia Jane Van Deventer. After directing the payment of her debts and giving a number of small legacies, she then provided as follows: “Sixth. The remainder of my estate I bequeath to my first husband’s stepmother and her children. Her name is Mrs. Rebecca Hand.” This is the clause to be construed.
    The will was executed on April 1st, 1892. The testatrix ditd on January 27th, 1895. Rebecca Hand, named in the will, died November 10th, 1891. Hannah M. Jackson, a daughter of Rebecca Hand, died October, 1885, leaving two children, Walter H. and Jennie C. Hering, who still survive.
    Ellen V. Troutt, another daughter of Rebecca Hand, died in March, 1887, leaving one daughter, Ella V. Troutt, still surviving.
    Three children of Rebecca Hand are still living, namely, Hester R. Smith, Joseph W. Hand and Mary N. Reynolds.
    The next of kin of the testatrix are Brucilla Ann Thompson, Ralph Marriott and James V. Titus.
    The remainder of the estate coming under the operation, of the sixth clause amounts to about $2,000. The following diverse claims to this fund now set up, are — first, the three surviving children of Rebecca Hand claim that the whole amount is divisible between them; second, the surviving children of the two deceased daughters of Rebecca Hand claim their respective mothers’ share, and third, the next of kin of the testatrix claim that the gift to Rebecca and the gifts to the two deceased daughters lapsed by reason of their death occurring before the death of the testatrix, and therefore go to the next of kin of the testatrix.

      Mr. James H. Van Cleef, for the complainant.

      Mr. Freeman Woodbridge, for the children of the testatrix.

      Mr. Theodore Strong, for the children of Rebecca Hand and the children of the deceased daughters of Rebecca Hand.
   Reed, V. C.

The first question is whether Rebecca Hand and her children take concurrently; or whether Rebecca Hand takes a life interest, and her children the remainder.

In Noe’s Administrator v. Miller’s Executors, 4 Stew. Eq. 234, the bequest was:

“To my daughter Elizabeth M. Noe, wife of John Noe, one share, in addition to what she has already had ; her said husband not to have any control of the said legacy, but to be hers and her child or children’s forever; but in case she should die leaving no child or children, the said legacy may be claimed by my other children, according to the tenor of my will.”

Vice-Chancellor Van Fleet held that the mother took a life interest in the legacy, and her children the remainder.

The bequest in that case differs from the gift ih this case in the particular that in that, the" gift was to a mother free from the control of her husband, and it was upon that feature of the bequest, that the cases cited in support of the construction thus given, rested.

The language of the opinion in that case, however, was broad enough, to include all cases of a gift to a person, and his or her children. The vice-chancellor says: “I think it is much more natural and reasonable to conclude that where a father makes a bequest of a particular sum or fund to a child and also to the children of such child, jointly, without indicating in any way when their enjoyment shall commence, that he intends that the parent shall have simply the income or produce during life, but that the principal shall go to the children on the death of their parent, than that he meant that his grandchildren should share equally with their parent at once, and have a right to demand a division of the fund as soon as it is payable.”

I entirely concur in the force of these observations, for I have no doubt that when a gift or a devise is made to A and his or her children the testator almost always has in mind the notion of descent of the property from the parent to the children. If this was a case of first impression I should hold that Rebecca Hand took a life interest with remainder in her children.

But the rule of construction is settled by the overwhelming weight of judicial sentiment that a devise or gift in this shape, without more, gives a concurrent estate in the parent and children. If the subject-matter is personalty they all take as joint tenants, and if it is realty they take under our statute as tenants in common, in default of some direction in the will that they shall take as joint tenants.

A gift to a parent and children is, prima facie, a gift to them concurrently. Theob. Wills 825 and cases cited. In a devise to parent and children, if there are any children living at the time the will is executed, the term children ” is, prima fade, not a word of limitation. Byng v. Byng, 10 H. L. Cas. 171; Oates v. Jackson, 2 Str. 1172; Jeffery v. Honywood, 4 Madd. 398.

Although a gift in this form,, prima fade, gives a concurrent interest to the devisees or legatees named,' yet slight indications in the will or in the form of the bequest will be seized upon to overthrow the presumption of an intent to give a concurrent interest. The classes of instances in which the courts have found indications of an intent to give to the parent a life interest are stated by Theobald on page 326 of his work on Wills.

The fourth class covers those cases where the fund is given to a wife and her children, coupled with words creating a separate use in the mother of the whole fund. It is within this class of exceptions to the general rule that the case of Noe’s Administrator v. Miller’s Executors, supra, falls.

In respect to the present case, it suffices to say that there is no indication in the will of an intent of the testator other than that to be derived from the use of the bare words already displayed. I am therefore constrained to hold that these words give concurrent interests to the mother and children.

The second question is, what becomes of the share of Rebecca Hand and the shares of the two deceased daughters ? If the residue is personalty they take as joint tenants, and these interests pass to those surviving at the time of testatrix’s death. The pleadings are silent in respect to the residue, whether it is real or personal estate, but it is stated in the brief that this amount, although in the shape of money, is the result of sales of real estate which the executors of the testatrix were empowered, but not ordered, to sell. If this is so, there being no equitable conversion of such real estate, this residue must be regarded as still real estate upon which the sixth clause is operative. Regarding it as a gift of realty, the devisees would take as tenants in common by force of our statute. The gift not being made to a child or other descendant of the testatrix, or a brother or sister of the testatrix, or a descendant of such brother or sister, the share of a tenant in common who died before the testatrix is not saved from lapse by our statute.

The question whether the shares of those who died before the testatrix lapsed must therefore be determined by the rules of common law.

The only conceivable ground which can be urged against a lapse is that the gift is one made to a class. In cases of gifts to a class as tenants in common, the shares of members of the class dying before the testatrix do not lapse, but go to the other members of the class. Theob. Wills 643; Hawk. Wills 68. The question then is, whether this is a gift to a class, and if so, whether Rebecca Hand is a member of the class. It is said that she is named, and that the rule is that where the testator names a person or persons as a beneficiary, such person or persons cannot be one of a class.

It is undoubtedly true that where a testatrix fixes the identity of those who are to take, and thereby fixes the proportion which each is to take, those persons are not a class unless there is some indication in the will that the testator wishes them- to be so regarded. But if one or more persons are named, and the gift is to those named, and also to an unlimited number, they together could constitute a class. For instance, a gift to Charles and the other children of A is a gift to a class; for Charles’ share as well as the others is dependent upon the number of children living at testatrix’s death.

On the other hand a gift to A, B, and C, children of A, would' not be a class, for the number who are to take and the amount of the shares of each are presently fixed.

In re Stanhope Trusts, 27 Beav. 201, the testator gave his real and personal property in trust for the equal benefit of his wife’s daughters, naming them, and then provided- that if he and his wife should have a daughter or daughters, they were to be equally entitled with his said daughters in the residue of his estate. Upon the death of one of the daughters it was held that there was no lapse. Sir John Romilly, master of the rolls, said if the gift stood as a gift to the four daughters, it would not have been a class, but all the daughters to be born are to participate, and therefore it is a gift to a class. A person may make a bequest to the daughters of A and the daughters of B, and he may add any other person to them, making together one class.

In Shaw v. McMahon, 4. Dru. & War. 431, the will provided as follows:

“ The surplus income to be equally, during the lifetime of my son Beresford McMahon, divided between my children, including Beresford and William, in equal shares, during the life of Beresford.”

The testator afterwards revoked the gift to William.

Dord-Chancellor Sugden held that it was a gift to a class, and upon the revocation of the gift to William, his share went to the rest of the class. In Aspinnall v. Duckworth, 35 Beav. 307 (1866), a gift to the nephew of A and the children of the testator’s late sister, B, as tenants in common, was held to be a gift to a class, and although three of the children died it was held that there was no lapse, their shares going to the rest.

In this case it is perceived that the nephew of A was held to be a member of the class, although he did not belong to the natural class, i. e., the children of the testator’s late sister.

So in Drakeford v. Drakeford, 33 Beav. 43, where there was a gift to the children of A and to my neice Rosemond, it was admitted that Rosemond might be a member of the class, but in that case, inasmuch as the members of the class were not to be ascertained at one and the same time, it was held that it was'not such a gift.

In the case of In re Chaplin’s Trusts, 33 L. J. Ch. 183, the question came up as to whether a person not a member of the natural class, to whom and to the natural class a gift was made, was such a member of the class as that upon his death his share lapsed.

Vice-Chancellor Wood, after a review of the cases, made a distinction between a gift to A and the other children of B, and to A, not a child of B, and the children of B, and held that upon the death of A in the first instance his share would not lapse, but upon the death of A in the second instance it would lapje. Although this decision is criticised by Mr. Jarman in his work on Wills—1 Jarm. Wills (Rand. & Talc. ed.) 335 note n—it was followed In re Allen, 44 L. T. (N. S.) 240, decided in 1881. In that case Mr. George Jessel not only followed the rule as laid down In re Chaplin’s Trusts, but gave the rule the sanction of his approval. In that case the property was bequeathed equally among the children of R. W., and the child of W. W. L. and his wife, and A. W., the widow of H. S. W., share and share alike. The child of W. W. L. and his wife died in testator’s lifetime, and it was held that his share lapsed. This is the present condition of the English decisions. I will follow these cases with the result that upon the assumption that the fund to be distributed is to be regarded as realty, the share of Rebecca Hand lapses and goes to the heirs of testatrix, while the shares of the deceased daughters do not lapse but pass to the three surviving daughters.


text:
    James M. Ridge v. The Pennsylvania Railroad Company.
    [Filed May 5th, 1899.]
    Where a railroad company acquires land for terminal purposes in the heart of a city, it cannot use such land in disregard of the comfort and property of others. It must adjust its operations so as to produce the least annoyance possible.

      On bill, answer and proofs.
    The complainant owns a three-story brick house fronting on Mickle street, in the city of Camden. A part of the first floor of this house is used as a drug store, and the room above, fronting on Mickle street, is used by complainant as a physician’s office. This house is thirty feet north from the southeast corner of Third and Mickle streets. One hundred feet north of Mickle street and parallel with it is Bridge avenue. Along Bridge avenue are laid three tracks of the Pennsylvania railroad, leading to its yard and station on the east side of the Delaware river. Mickle street is sixty feet wide and is closely built upon both sides at this point. Second street is the next street to Third street, towards the river and yard of the Pennsylvania railroad. Between Second street and the river the yard and station lie.
    The bill charges that the right to use the tracks of the railroad for strictly yard purposes, namely, for making up trains, shifting cars, &c., is confined to the limits of the yard lying between Second street and the river. The bill charges that for a long time past the company has unlawfully used the three tracks along Bridge avenue, north of Second street, for the purpose of distributing cars and making up trains, and using engines there for shifting and coupling, and detaching cars near the dwelling of the complainant; that at frequent intervals during every day and night, the engines stop and keep standing near said house from one to- thirty minutes, and discharge large volumes of smoke, soot, cinders and gases, which are carried into the rooms of said house; that cars loaded with cattle and manure are kept standing there, and that the noise of bumping cars, the shouting of men in drilling cars, the ringing of bells, blowing of whistles, hissing of steam and groaning of cattle, are a nuisance. The bill states that Third street, at its point of crossing Bridge avenue, is often obstructed. An injunction is prayed for.
    The answer sets up that the company is in possession of the tract of land for terminal purposes, including a strip of land eastward of Second street, on the north side of Bridge avenue, to Fourth street. Fourth street crosses Mickle street north of complainant’s residence.
    The answer states that the defendants have purchased all the property fronting on Bridge avenue, between Fourth street and the river, frorp No. 7 to No. 19 on the south side, and from No. 1 to No. 16, inclusive, on the north side of Bridge avenue, by which purchases they acquired the fee in the soil covered by said avenue lying west of Fourth street; that that part of Bridge avenue on a line forty feet from the south house line was vacated; that the sixty-foot strip thus vacated upon which the three tracks are laid, together with the property purchased on the north side of Bridge avenue, was acquired for terminal purposes, and constitutes the throat of the yard, and has been used in connection with this terminal.
    The answer denies the general allegation of the bill in respect to the standing of cattle and manure cars; and in respect to the emission of smoke, gas and noises, it states that it is one of the incidents of defendant’s business, and that it is the result of the necessary use of the property so acquired for the purpose of drawing cars upon it in order to clear the switches in front of the passenger station, or to run them upon the storage tracks, and to draw freight cars to place them upon their proper tracks to be made up into trains. It claims the right to so purchase and use the land under the charter of the Camden and Amboy Railroad and Transportation Company.

      Mr. John L. Semple, for the complainant.

      Mr. Joseph Gaskill, for the railroad company.
   Reed, V. C.

In support of the complainant’s case, the doctrine enunciated by the court of appeals in the case of Angle v. Pennsylvania Railroad Co., 14. Stew. Eq. 316, is vouched. The bill is admittedly modeled after the pleadings in that case. That was a suit brought against the same corporation by a resident on the southerly side of Bridge avenue, between Second and Third streets, who complained that the company had created a nuisance by the use of their railroad in front of his house in a matter similar to that now charged by the present complainant.

The court in that case held the defendants were guilty of maintaining a nuisance on the ground that they had no right to use their tracks north of Second street for any purpose other than the passage of their trains, while, in fact, they had used them for terminal purposes.

If the right of the railroad company to use the three tracks mentioned has not been enlarged since the decision of that case, the complainants are clearly entitled to an injunction ; for it is not denied by the defendants that they have habitually used the same portions of their road for terminal purposes.

The first question, then, is whether they have acquired any rights that they did not possess at the time of. the former litigation. Then, their tracks north of Second street were laid upon a street, and the court held that neither by legislation nor municipal grant had they acquired any right to use those tracks as a part of their terminal yard. Since then the company has acquired the fee in the land covered by these tracks and sixty feet of the street has been vacated, leaving the fee in the company disencumbered of the public easement. Upon this vacated strip the company have placed their three tracks, and this strip of land, together with the property north of it, the company have shown to be necessary for the operation of their terminal yard.

The act of 1855 (P. L. of 1855 p. 118 § 65), cited in the opinion in Angle v. Pennsylvania Railroad Co., supra, conferred upon the railroad company power to purchase and hold so much land as might be strictly necessary for most conveniently storing and working upon their engines, cars, fuel and material to be used on their roads, to the best advantage, &c. I am of the-opinion that the company now have the right to use the track between Second and Fourth streets, in conjunction with their former yard.

But I do not think that the company have the right to use the strip of land between Second and Fourth streets in the same way that they could use their former yard.

The case of Beseman v. Pennsylvania Railroad Co., 21 Vr. 235; S. C., affirmed, 23 Vr. 221, relied upon by the company, does not, I think, go to this extent. That action was for damages to the owner of lands, occasioned by the railroad, which ran within ten feet of the owner’s property. He complained that his dwelling-house was rendered unfit for habitation by reason of cars, loaded with animals, which the company permitted to stand upon the tracks near his house, and by the noise of whistles, &c. A plea was filed setting out the charter rights of the defendant to locate its yard, and in the language of the opinion set up “ that by force of its franchise, derived from tjie public grant, it has built its road and run its trains, carrying merchandise and freight near to the land of complainant, doing to the complainant no more damage than that which necessarily results from the transaction of such acts and business.”

It is perceived that the plea in that case, as thus construed by the court, set up that the injury charged was a necessary incident in the operation of the defendant’s road under its charter. The court held that as railroads possess a public character, therefore any injury which is the consequence of the necessary exercise of their chartered privileges is damnum absque injuria.

In the opinion in the Beseman Case the case of Baltimore and Potomac Railroad Co. v. Fifth Baptist Church, 108 U. S. 328, was referred to. In the latter case it was denied by the supreme court of the United States that the railroad had been invested with the privilege of building an engine-house or repair-shop next to a church in the city of Washington. The court held that the grant of power did not authorize the company to place such structure wherever it might think proper in the city without reference to the property or rights of others. The doctrine of that case was approved in the opinion of Beseman v. Pennsylvania Railroad Co., supra, upon the ground that in selecting the place for repair-shops the railroad company acted altogether in a private capacity. Such location, it was said, was a matter of indifference to the public, and consequently, with respect to such act, the corporation stood upon the footing of an individual and was entitled to no superior immunities. What was meant was, that while the public was concerned that a railroad company should have all the appliances, including repair-shops, to make its public service effective, it was immaterial to the public where such appliances were 'placed, so long as the service was efficient. All that concerns the public is to have an efficient service in the way of transportation of persons and freight. The company is shielded from responsibility for incidental damages resulting from acts which are necessary to bring about such service. In the federal decision it was admitted that the company, by virtue of its franchise, had the right to build repair-shops and engine-houses, but having the liberty to choose different sites for its structures, it was bound to select one where they would not inflict an injury upon the property of others, else, as Mr. Justice Field remarked, “it might have built them in front of the capitol.”

Therefore, the right of this company to use the strip of land upon which the three tracks are placed, between Seoond and Fourth streets, for terminal purposes, does not include the right to use them for all purposes to which a terminal yard may be devoted. The company is bound to take into consideration the environments and adjust its operations so as to produce the least annoyance to persons and property, in placing the instruments necessary to transact its business.

The strip of land projects from the original yard into the heart of the city of Camden, into a part of the city which was occupied for residential and business purposes long before the land was purchased by the company. The terminal yard, lying between Second street and the river, is free from these environments. In adjusting its terminal affairs the company, I think,, should regard these conditions and adjust its business so that it will be the least likely to inflict injury upon others. This indeed it claims it has done. It has proved that the use of the tracks between Second and Fourth streets is necessary for drilling cars,, in breaking up arriving trains and forming departing trains,, both passenger and freight. It has proved that it is often necessary to stop trains upon these tracks before entering the yard, to await signals that the tracks are clear. It denies that the.tracks are used for any terminal purposes aside from those mentioned. It insists that the drilling of cars has been necessary to the operation of the yard, and that no cars or engines have been permitted to stand upon these tracks between Second and Fourth streets, or across Third street, any longer than such service required.

That the complainant has been annoyed by the noise of bumping cars and of engine whistles and bells, as well as by the smoke of locomotives, particularly of those attached to freight cars, there is no doubt. The delicate operations of diagnosis were easily interrupted by noises which would not have disturbed persons otherwise engaged. The cleanliness which should attend a well-conducted pharmacy was made difficult by the soot, which in certain conditions of the atmosphere and directions of the wind, would naturally be deposited by freight engines even if merely passing. But these are the incidents of railroading for which no responsibility arises, if they are the necessary results of the operation of the road.

The question is resolved into the query whether the company habitually conducts its operations upon these tracks in such a way as to create unnecessary nuisance and dirt, which specially injured the complainant. There are a number of witnesses who testified to the extent of noise and smoke and gas in the vicinity of Bridge avenue, and obstructions at Second and Fourth streets, which entailed prolonged interruption of passage along said streets at Bridge avenue. The opinion of these witnesses is that this was the result of having engines or trains either standing upon the three tracks mentioned, or moving backward and forward in the drilling of cars.

There are also a number of witnesses who live or board in the vicinity of the complainant’s house, who have found little or no disturbance or nuisance from the smoke, dirt and noise; they say also that the delay of crossing Third street is rarely over two or three minutes, which delay may be caused by departing trains at certain hours following each other in quick succession.

The force of the testimony on both sides must be discounted by the feelings of the witnesses. Those of the complainant who are more or less annoyed even by the passage of a large number of trains which pass over the tracks during the twenty-four hours, and who feel aggrieved by the smoke and noise that such traffic engenders, although strictly incidental to the legitimate business of the company. On the other hand, many of the witnesses are in the service of the company or related to some one in such service, and are disposed to overlook any discomfort from the source named. I have no doubt that there has been on occasions unnecessary smoke and dirt created by the engines standing upon these tracks.

I believe Mr. Garrow when he says he has seen three and four engines standing there, the engineers of some of them poking their fires, which sent up volumes of black smoke. It is proved that on some occasions the crossing at Third street was obstructed for periods of time, which periods, it is admitted by officers of the company, have been unnecessary in the ordinary operation ■of the yard, and to be accounted for only by some accident. This obstruction in Third street is important only in exhibiting the manner in which the tracks are used.

Doctor Bray says that he was, in September last, detained ten minutes, by his watch, by a freight train lying across the street, and when he asked an employe when they were going to let him through, he received the insolent reply, “that if he kept his-watch out and looked at it he would find out.”

There are other witnesses who say that they were detained •ten, fifteen and twenty minutes, but the dates are not given, nor do they swear by their watch, as does Doctor Bray, but by the length of time as they now recall it. When a witness speaks of minutes, in recalling periods of time not actually measured by a timepiece, it is necessarily uncertain; the seeming length of the interval depends upon the mood of the witness at the time-. The only witness who gives dates is, I think, Mr. Garrow, who says that on September 16th and 17th there was an engine with a car which stood for fifteen minutes on the tracks above Third street, sending out black smoke and exhaust steam, and that on the 18th there was almost constant drilling, and volumes of smoke from standing and drilling engines.

While. I think that on the occasions spoken of by Doctor Bray and Mr. Garrow, the company abused their right to use the tracks for terminal purposes in the modified manner which I have -indicated, yet these particular instances do not alone prove such an habitual misuse by the defendants of their tracks as to establish the existence of a nuisance which this court will enjoin.

The remaining testimony is deficient in dates and is general as to times of track occupation, and therefore impossible of specific refutation.

I have therefore concluded that there is not proven such a clear case of an habitual violation by the defendants of the rights of the complainant as will justify an injunction, even in the very general form in which such a writ would have to be drafted, if allowed.

I advise a decree dismissing the bill, but without costs.