author: Grey, V. C.

text:
    Henry W. Leeds et al. v. Bohemian Art Glass Works.
    [Filed June 14th, 1902.]
    ■ Upon the facts stated—Sold, that the defendants were chargeable with maintaining a private continuing nuisance which complainant was entitled 'to have abated.
    On bill, answer and proofs.
    The complainants are the owners and occupiers of Haddon Hall, a large seaside hotel, located at the corner of North Carolina avenue and the boardwalk, at Atlantic City, New Jersey. This bill is filed for the abatement of alleged nuisances created by repellant and excessive noises in, and the throwing off of smoke and soot from, the recently-erected glass-house of the •defendant company, upon property which almost immediately adjoins Haddon Hall.
    The proven and admitted facts show that the complainants have for a number of years used their property as a hotel and boarding-house. It has two hundred and fifty lodging-rooms, is-several stories high, and will accommodate over four hundred guests. It is a place of health and pleasure resort, for rest, recreation and recuperation, by .people from all .parts of. the United States. The house is located on the easterly side of North Caror lina avenue, at its junction with the boardwalk, which it faces,' 'This locality is almost wholly devoted to boarding-house purposes, and, on and along the boardwalk, to small shops for. the .sale of wares to passers on that thoroughfare. The evidence .shows that there are no manufactories of any kind anywhere in the neighborhood.
    The defendant company recently erected a glass-house; on leased premises, adjoining the complainants’ property, being ■separated therefrom by a twenty-foot alley, the open space between the complainants’ lodging-rooms and the defendant’s glasshouse structure being somewhat increased by the width of the •complainants’ lawn.
    The defendant’s glass-making furnace finds its vent in a ¡smokestack. There is also a boiler-house and smokestack, with boiler and engine, and. an oil tank, containing several thousand gallons of petroleum fuel oil, which is used in the manufacture •of the glass. There is an'exhaust steam pipe emptying from the rear of the boiler-house in the direction of the complainants’ building. This escape of steam attends upon the running of the engine. An almost constant blast is required on the furnace, in order to keep the glass in a molten condition, so that the engine must run almost all the time. This exhaust makes ¡a loud puffing noise, just opposite the sleeping-rooms of the complainants’ hotel. On remonstrances made, a muffler was put ■over the exhaust escape. This had but little effect to reduce the noise.
    The fuel used in melting the glass is crude petroleum oil, of which six thousand gallons are stored in a tank near the furnace. This oil is forced into the furnace under pressure, which causes .a hissing noise. The combustion of this oil is imperfect, resulting in. the escape of offensive smoke, which, during the blowing •of the wind from the ocean, is carried into the higher windows .and porches which are on that side of the complainants’ hotel next the glass-house, and is very annoying to the guests.
    The defendant company’s process of manufacture requires the use of metal tubes. These are dipped into the molten glass, the workman blows through the tube and fashions the glass as it hardens. A residue of hardened glass is broken off the tube by striking it against iron or other hard surface, thus making a metallic clanging noise.
    These noises and odors have occasioned the guests who occupied the more desirable rooms on the oceanward front and sides of the complainants’ hotel building to make great complaints,, and to declare they will not accept those rooms if the annoyance continues.
    The defendant company admits, in substance, the character of the neighborhood, the location and use which the complainants make of their property, the construction of the glass-works, and its furnaces, engines and boilers, on its own property, and its-location and relation to the complainants’ hotel. It denies that the noises made in the use of its property are in any way distinguishable from other noises produced in that locality by various itinerant musicians, and persons shouting recommendations of shows, brass bands, and the like. It admits that it has built, and has in use, the furnaces mentioned,- but claims that they have been especially constructed for the purpose of effecting perfect combustion, entirely' free from smoke, and insists that, in this respect, it has been eminently successful. It admits that it has its engine and exhaust, referred to in the bill, but insists that, at the time of filing its answer, the 'exhaust steam has, at the suggestion of the health inspector, been changed, so that it now noiselessly passes through a-steam pipe above the roof of the building, muffling the sound. It admits the use of oil in its furnace, through gangs of burners, used alternately, and that this process produces a hissing noise, but it insists that the combustion of the atomized oil is perfect, and that’no smoke arises therefrom; that the only chance of smoke arises when the attendant reverses the furnace in the adjustment of the burners, but it insists that such possibility of imperfect combustion only happens once in thirty minutes, and that, if any' smoke is then produced, it is carried off through a'stack which is' about twenty feet higher than the tops of the windows of the top floor of Iladdon Hall.- •

      The answer substantially denies the existence of any of the noises, odors or offensive smoke complained of in the complainants’ bill of complaint.
    The cause came to hearing on the issues joined between the parties.

      Mr. Clarence L. Cole, for the complainants.

      Mr. Walter E. Bacon and Mr. David J. Pancoast, for the defendant.
   Grey, V. C.

This case turns almost wholly upon the question of fact involved in the denials of 'the defendant company, by which it insists that it has not so conducted its business as to create the annoying noises and offensive odors described in the bill, and that the complainants’ hotel rooms facing the defendant company’s glass-house have not, because of those odors and noises, become substantially untenantable.

A number of guests who were staying at Haddon Hall during the whole period of the defendant company’s operations came upon the stand as witnesses. Their* testimony is substantially unanimous as to the frequency and offensiveness of all the annoying noises and odors of which complaint is made. Other persons who were familiar with the premises, both before and at the time of the defendant company’s operations, confirm and support these statements of those disinterested persons who occupied rooms in the complainants’ hotel, which faced the defendant company’s works.

Several theories were advanced, and, to some extent, supported by testimony, to show that the defendant’s plant, as used, could not have produced such noises and odors as are the subject-matter of complaint. But theories and conjectures go but a small way to refute facts of actual happening, proven by those who suffered from the incidents narrated.

Attempts were also made to show that the noises complained of might have emanated from other sources than the defendant’s glass-house, but the testimony clearly proves that the noises created by the operation of the defendant company’s glass-works were distinctly different from any other in that neighborhood, and also distinctly and aggressively offensive to the comfort of persons who might, either for recreation, rest or recovery of health, occupy rooms in a hotel, located, as the complainants’ is, with relation to defendant’s glass-works.

Some objections'were taken to the admission of certain parts of the testimony. The proofs submitted, irrespective of the evidence objected to, were, in my view, amply sufficient to establish, as a fact, that, from the time of the beginning of the operation of the defendant company’s glass-works, in July, 1899, until it ceased operations, about the middle of August, 1899, such loud and frequently-repeated noises proceeded from the puffing of exhaust steam, and from the roaring of the blower or forced draft of the oil furnace, an.d from the use of metal implements of manufacture, and such offensive and permeating odors and smoke were caused by the imperfect combustion of oil, all on the defendant company’s property, that the rooms and porches on that side of the complainants’ hotel which faced the defendant’s glass-house were thereby made so uncomfortable as to be substantially untenantable by guests of the hotel.

This clearly constitutes a private nuisance, which operates as a continuous injury to the complainants in the lawful enjoyment of their hotel property, which they are entitled to have abated.

The proofs show that the defendant company has become a bankrupt, and that its property has been sold from it, and that the buildings have been demolished and taken away.

In view of the strenuous litigation which has been made, both before and since the failure of the defendant company, and the demolition of its building, insisting upon its right to operate its works in the manner described in the complainants’ bill, it seems to me that the complainants are entitled, as against the defendant company, and those representing it, to have protection against the injuries clearly shown, and which the defendant insists the complainants must bear.

A decree will be advised according to the views above expressed.


source: Caselaw Access Project

license: Public Domain

text:
    Joseph H. Bruere, executor, &c., v. Charles Cook et al.
    [Filed July 14th, 1902.]
    A testator by residuary bequest gave the residue of his estate “to the Board of Missions of the Baptist Church of New Jersey, one-third for the home and two-thirds for foreign missions.” There is no board of missions-of the Baptist Church of New Jersey, nor any body, corporation or society having any similar name. Nor is there any body, corporation or society under the control of the members of the Baptist Church of New Jersey which undertakes or has the equipment to carry on either home missions or foreign missions. There are, under the control of members of Baptist churches, three entirely distinct lines of mission work: (1) the aiding and extension of Baptist churches within the State of New Jersey; (2) mission work within the area of the United States and territories and Mexico, which, at .the time' the testator’s will spoke, had been known for years in the Baptist Church as “Home Missions;” (3) mission work in foreign countries outside of the United States and its territories and Mexico which had been known in that church as “Foreign Missions.” Mission work in each of these fields has been separately and coincidently carried on by Baptist churches.-—Held, (1) the bequest is a valid gift of the residue, one-third part to home missions of the Baptist Church and two-thirds parts to the foreign missions of that church, as above defined; (2) the gift is in the nature of a trust, which this court will aid and' enforce; (3) the legatee or trustee named by the testator to receive the gift' and apply it to home and foreign missions is non-existent, but this-will not be permitted to defeat the gift. This court will appoint competent trustees to receive and apply it according to the testator’s declared purpose; (4)-an executor of a will containing such a residuary bequest may apply for the appointment of such trustees in order that he may perform his duty and pay out the legacy.
    On'bill, answer and proofs.'
    This bill is filed by the complainant, 'Bruere, as the executor of the will of Evan E. Cook, who died June, 1899, testate. His will is dated the 8th day of August, 1892. It contains sundry preliminary gifts, and a final residúarjr bequest and devise in these words:

      “Thirdly. I empower my executor to sell, at his discretion, with the consent of my said wife, any or all of my real estate of whatsoever character or wheresoever situated, at either public or private sale, and that the proceeds shall be invested as well as the residue of my personal property in good interest-bearing securities, and the income thereof to be paid to my wife during her life, and after her decease to pay five hundred dollars to my cousin William Henry Oook, and the balance or residue of my estate, both real and personal, of whatsoever kind and wheresoever situate, to the Board of Missions of the Baptist Ohurch of New Jersey, one-third for the' home and two-thirds for foreign missions. Lastly,” &c.
    The complainant proved the will in 1899, and entered upon the execution of it. Mrs. Cook has since died, and the complainant has substantially concluded the duties of his office, except the payment of this final residuary gift. A portion of real estate remains unsold, and the complainant has in hand a balance of $19,638.65 of cash, of which $500 is payable to William Henry Cook. The remainder—$19,138.65—he has as yet retained, because of conflicting demands made by different corporate bodies, each claiming to be the final legatee intended by the testator to have this residuary gift, and the further contention, by the next of kin, that this final gift is a nullity and void, and that the testator, as to the fund in hand, died intestate.
    The complainant shows that the decedent testator, had for years been a member of the Baptist Church, and that he died in that faith. The functions of the various societies of that church, who are made defendants, are described, and the complainant alleges that, in view of the uncertainty of the language of the bequest, and of the conflicting claims for the fund, he fears to pay the money to anyone, until it is determined, by some competent court, whether the residuary bequest is void, and if not, to whom the fund in hand should be paid. He brings.in as defendants the next of kin and heirs-at-law of the decedent and all the various corporate bodies in the Baptist Church who claim, or could claim, any right, to receive the bequest, and asks the direction of this court as to his duty in the premises.
    The next of kin and heirs answer, admitting the will, its probate, the administration of the estate, and the resulting fund now in hand, but contending that the residuary bequest is void, because, as they allege, of uncertainty in the designation of a legatee. They say there is no such body as the named legatee, "The Board of Missions of the Baptist Church of New Jersey.” They admit that there is a corporate body known as "The New Jersey Baptist Convention,” but they insist it is not engaged in home or foreign missionary work, and that it was not intended by the testator to be the recipient of the residuary gift. They make the same contention as to “The New Jersey Baptist Education Society.” They also aver that “The American Baptist Missionary Union” and “The American Baptist Home Mission Society” (other corporate bodies of the Baptist Church who have been made defendants as possible -claimants) are not within the testator’s description of his intended legatee.
    “The New Jersey Baptist Convention,” a corporation of this state, by its answer, claims the legacy, on the ground that it is the only corporation in New Jersey having any authority or supervision of missionary work on behalf of the Baptist churches of New Jersey for the whole of that state.
    “The American Baptist Missionary Union,” a corporation organized to administer foreign missionary work of that church, by its answer, admits the claim of “The New Jersey Baptist Convention.”
    “The American Baptist Home Mission Society,” a corporation organized to conduct home mission work of that church, by its answer, claims that “The New Jersey Baptist Convention” was intended to have the residuary legacy, but that the gift is in trust, the one-third part for home missions for the use by itself, “The American Baptist Home Mission Society,” and, by its cross-bill, prays that one-third of the residuary fund may be decreed to be delivered to “The New Jersey Baptist Convention,” to be paid to “The American Baptist Home Mission Society” for home missions.
    Issue was joined on these answers and the cross-bill. After-wards, by agreement of parties, the answer and cross-bill of “The American Baptist Home Mission Society” was withdrawn, and a decree pro confesso was taken against it. The cause was brought to a hearing, the active litigants being the, next of kin and heirs-at-law of the testator, who claim that the residuary bequest is a nullity, and “The New Jersey Baptist Convention,” which insists that the legacy is valid, and that it is the intended legatee.

      Mr. William M. Lanning, for the complainant.

      Mr. Edward Ambler Armstrong and Mr. Samuel W. Beldon, for “The New Jersey Baptist Convention” and “The American Baptist Missionary Union.”

      Mr. Linton Satterthwait, for the next of kin and heirs-at-law of the testator, Evan E. Cook.
   Grey, V. C.

(orally).

This case must be determined almost wholly upon the words of the will and the testimony which is offered to show the identity of the legatee intended by the testator to take the residuary bequests. Extended examination of authorities is not necessary, for each matter like this must be determined by the incidents peculiar to the case which may be under consideration. I will therefore dispose of it at once. So far as the principles of the law applicable to this case need to be referred to, they may be found in Mills v. Davison, 9 Dick. Ch. Rep. 659, where a gift of a lot of land, to be used for purposes of worship and teaching in accordance with the rites of the Protestant Episcocal Church, was held to be a gift for a charitable use, in the nature of a trust, which equity will enforce. If this court will aid and enforce, as charitable, a gift to maintain a single church building, how much more benefieient is a gift for the further extension of the influence of the Christian religion among the whole human race in this and foreign countries? * In Hesketh v. Murphy, 9 Stew. Eq. 307, 308, are collected and discussed the cases of gifts to misnamed donees, or for purposes requiring selection of the final beneficiaries within a subclass. There it is held that gifts to misnamed first legatees, for distribution to a subclass of beneficiaries, will be aided and enforced in this court. These decisions are both in the court of appeals, and they settle the law applicable to this ease.

An examination of the terms in which this residuary bequest is expressed, and a very slight consideration of the .contentions of the parties, show that the complainant is fully justified, for his protection in the administration of his trust, in asking the aid of this court in determining the validity of the bequest and the identity of the legatee.

The residuary gift, if forceful, passes, not only the fund of •money remaining in the hands of the complainant, as executor of the will, but also the real estate whereof the testator died seized which yet remains unsold. It is both a legacy and a devise. No title was devised to the executor. He received, as to the real estate, only a power of sale. The executor has control only of the personalty, the fund in his hands, but the terms of the will are such that the residue of the personalty and of the real estate pass by the same gift to the same beneficiary. In this cause the only thing to be considered is the duty of the-executor with relation to the fund in his hands. The first question arises on the claim of the heirs and next of kin, that the whole residuary gift fails, and that the testator, as to that gift, died intestate, and consequently that his real estate descended to his heirs-at-law, and the residue of his personalty to his next of kin.

They challenge this bequest because they insist that it is so-uncertain in its nomination of the residuary legatee and devisee, and in its designation of the ultimate use of the fund, that no court can enforce it, and consequently cannot instruct the complainant to pay the money to anybody.

It is undisputed that there is no such body or corporation as “The Board of Missions of the Baptist Church of New Jersey,” the primary legatee named in the will.

The words of the gift show that the testator intended to give-the property in question to some board or association of persons of the Baptist Church of New Jersey which was engaged in the conduct of home and foreign 'mission work. In making this-gift he indicates, in the clearest possible way, that he did not -intend that the board which might be the recipient of the title should use the fund for any general purposes of church work. He meant to give the title of the gift to a board, but this board should use and apply the gift, one-third part thereof for home missions and two-thirds parts thereof for foreign missions of the Baptist Church.

. The title was intended to be given to one, for the use and benefit of further specified beneficiaries or objects. In short, without so naming it in words, he created a trust.

It must, of course, appear that in 1899, when the testator died and his will spoke, the objects which he intended should ultimately receive the benefits of his bounty were sufficiently defined by him to enable the fund to be devoted to those objects.

■The misnomer of the legatee who should, in the first place, receive and apply the fund, or the selection of one who does not have the power or equipment to carry the testator’s intention into effect, or even the entire omission in anyway to indicate a person or corporation to whom payment of the fund could primarily! be made, will not defeat such a gift, if the testator’s ultimate object is lawful and is definitely indicated. Equity will not permit a lawful trust to be defeated for want of. an efficient trustee.

On this question of the definiteness of the object for which the testator gave this residue a considerable amount of testimony was offered by a number of Baptist ministers, showing how the mission work of that church is organized and conducted. Their statements all agree in a very clear and frank exposition of the constitution of that church, its method of government, and the various organizations through which it carries on its mission work.

All the church congregations have the same faith. Each is, in its government, independent. From the pastors and members various societies have been formed to carry on the different branches of church work. In 1899, and indeed for many years before that time, there existed a distinct and well-defined branch of endeavor, known among Baptists as “home missions.” This included in its area of church “work the whole of the United States and its territories. Another branch, equally well known and established, was called “foreign missions.” This included all foreign parts outside of the United States. The support of these different branches of church work had for years been the subject of exhortation in the various Baptist churches and of contribution by the members. The funds raised were expended in these two separate and distinct fields. These lines of work had been so thoroughly established in the Baptist Church, at and before the time of the testator’s death, that the words “home missions” and “foreign missions” had such a well-understood significance that they entered into the general nomenclature of the church, and were commonly used to indicate the fields of church work above defined. Irrespective of their acceptance among Baptists, home missions and foreign missions are understood, in common parlance, in all churches, to have substantially the same meaning.

The testator had, for years before his death, been a member of a Baptist church in Trenton. A gift by him to Baptist Church home missions and to Baptist Church foreign missions sufficiently indicates the ultimate beneficiary for whom he intended the gift. This final purpose of the testator is plainly expressed in the very words of the will, and when the proofs show that there is a well-defined work in home missions and in 'foreign missions in the Baptist Church, there is no element of uncertainty in the gift.

The next of kin further insist that the terms of the bequest require the exercise of the receiver of the fund of special discretionary powers as to the detailed expenditure of the several portions of the fund, the places where, and for whom, and in what amounts; that the testator made the gift itself dependent upon the exercise of these discretionary powers by the trustee whom he undertook to select; that he failed to indicate any trustee who can be identified, and that this failure defeats the whole gift.

The will expresses no indication that the testator reposed any special confidence that the named primary legatee should exercise a discretion in expending the funds given. The general object of its consideration—“home missions” and “foreign missions” of tile Baptist Church—were well-known fields of endeavor, constantly calling for, receiving and expending large contributions. There was no reason why he should rely upon any particular qualification of the named primary legatee, and there is neither expression in the will, nor proof aliunde (if such conld be considered), that the testator did so rely upon any special qualifications in the named trustee. In actual fact, there never was any such body as the legatee named by the testator.

The plain, self-evident fact is that the testator, while clearly expressing his intent as to the ultimate destination of his gift, has, by mistake, failed to indicate the person or corporation who, as primary legatee, should receive and deliver it at that ultimate destination.

I cannot see that there is any serious difficulty in construing this residuary bequest to be sufficiently definite to show that the testator intended it to go, two-thirds for the benefit of the foreign missions and one-third for the benefit of the home missions of the Baptist Church. This expression of his intent is not defeated by uncertainty in the selection and identification of the trustee wh.o might receive and apply the gift to those purposes.

The other defendants, “The New Jersey Baptist Education Society,” “The American Baptist Missionary Union” and “The American Baptist Home Mission Society,” are too variant in name from the descriptive words used by the testator to have been intended by him to take the legacy.

A more difficult question arises on the contention made by counsel for the defendant “The New Jersey Baptist Convention.” All the other defendants, representing the various corporate bodies which carry on mission work for the Baptist Church, have, by their pleadings filed in the case, indicated their willingness that “The New Jersey Baptist Convention” shall be deemed to be the body meant by the testator to be the primary legatee of this gift. The words of the will must, however, control this matter. If they are insufficient in their identification of the legatee who should take and apply "the fund, it must be so declared. A trustee, in a proper case, may be appointed on application for that purpose.

The words used in the will descriptive of the primary legatee are “The Board of Missions of the Baptist Church of New Jersey.” When the will was made, ini 1892, the name of the state society was “The New Jersey Baptist State Convention.” It was changed, in 1894, to “The New Jersey Baptist Convention.” The variance between the descriptive name used in the will and either name of this New Jersey society is so great that the latter cannot be held to be within the description of the legatee as given in the will.

The powers and scope of church work of this state society still further remove it from the possibility of its being the primary legatee intended by the testator.

The original incorporation of this society was by an act of the legislature of this state, passed February 3d, 1841. P. L. of 1841 ¶• 19. It enacts

“That the association known as the New Jersey Baptist State Convention for missionary purposes, shall be and is hereby constituted a body politic and corporate, by the name and title of The New Jersey Baptist State Convention.”

There is a mention of the officers of the society and of the mode of conducting business. The only reference to the powers granted is contained in the third section, where it is provided

“that the said corporation shall not use its funds for any other than missionary and educational purposes, and the support of widows and children of deceased ministers.”

The society appears to have conducted its business from 1841 until 1899, more than fifty years, in such a manner as definitely to interpret and fix the extent of its powers. Four or five of its ministers were on the stand as witnesses in this cause. Every one admitted that the society had always devoted all its machinery, all its endeavors, and all its expenditure of money, so far as it had expended money under its own auspices, to the furtherance of church work within the State of New Jersey. All of them admitted the fact that, coincidently with the action and labor of “The New Jersey Baptist Convention” within the State of New Jersey, there was being carried on a well-defined line of endeavor, by Baptist Church members, known by the name of “home missions,” clearly distinguishable from the mission and church work that was undertaken by “The New Jersey Baptist Convention.” There was, at the same time, another clearly-clefined line of endeavor and work, known as “foreign missions,” which was equally distinguishable from the work of “The New Jersey Baptist Convention.” The state society has never, at any time, undertaken to conduct either the work known in the Baptist Church as “home missions” or that known as “foreign missions.” There were three several and distinctly separate lines of work, all proceeding at the same time, each in its own department, neither interfering with the others. “The New Jersey Baptist Convention” never had any such organization or equipment as would be necessary to carry on missions throughout the United States or in foreign countries. Its work and preparation for that work were strictly limited to the advancement and -protection of Baptist churches and missions within the State of New Jersey. When the testator made his bequest he intended the fund to be used, not for the Baptist missions within the State of New Jersey, but for what were then and at the time of his death well known as “home missions”—that is, Baptist missions throughout the United States and territories, and “foreign missions”—that is, Baptist missions in foreign countries.

It is quite clear that nothing in the organization of “The New Jersey Baptist Convention,” or in its mode of doing business, enabled it to carry into effect the purposes and objects of the testator, even if it had been actually named in the will as the first recipient of the residuary gift for the ultimate purposes he wished to accomplish.

The true interpretation of the intent of this will is that the testator clearly expressed the final purpose he had in view, and believed he had indicated a primary legatee to carry his final purpose into effect. His nomination of the primary legatee or trustee is a failure, because he has not, in the will, sufficiently identified the party intended. It is, however, such a trust that as this court will aid by the appointment of a trustee to execute the testator’s purpose. This course may be taken when there is no such person or. body as the one named by the testator, or when he selects a person or corporation which is unable to carry into effect the trust he creates. In either case the result is the same. The ultimate bequest is indicated with sufficient certainty on the face of this will, but the selection of a person who shall carry into effect is a failure.

The complainant should be advised that the residuary gift is a valid bequest in favor of the home missions of the Baptist Church to the extent of one-third part thereof, and in favor of the foreign missions of the Baptist Church to the extent of the remaining two-thirds parts, and that no efficient trustee is indicated by the testator’s will to whom the complainant can presently pay the funds in his hands, and that it is his duty to apply to some competent court for the appointment of trustee to receive this legacy and execute the trust.

I will advise a decree so declaring the effect of this will.

Under the rule laid down, in Attorney-General v. Moore, Executor, 4 C. E. Gr. 519, by the court of appeals,-the complainant is entitled to be allowed a fee and his costs of this suit. The answering defendants are entitled to costs. Those who have appeared as active litigants may also be allowed a fee.


author: Grey, Y. 0. Grey, V. G.

text:
    The Pennsylvania Railroad Company v. Charles R. Stevenson, executor, &c., of Walter Earl, Jr., et al.
    [Filed July 29th, 1902.]
    1. When an impartial stakeholder brings a fund of which he holds custody, hut in which he has no interest, into court, and also brings in hostile claimants, each o£ whom in good faith insists that he is entitled to the whole of the fund, an interpleader decree will not be refused the complainant because one claimant probably has the better right to the fund. The complainant’s equity is that he, being impartial and willing to pay once to the rightful party, shall be protected from the necessity of -deciding which is the rightful party, and from the expense and danger of defending several suits by hostile claimants of the fund.

      2. Moneys were deposited in a railroad employes’ saving fund, upon certain conditions set forth in regulations printed in a deposit-book in which the amounts deposited were entered. One of the regulations declared that upon “satisfactory proof of the death of a depositor the money belonging to him shall be paid over only to the person designated in his application to receive the same.” A depositor designated his wife as the person to whom, in the event of his death, his deposits should be paid. He afterwards made a will bequeathing all his estate to his executor upon certain named trusts, without special mention of the fund on deposit. On his death his wife, as the designated beneficiary, claimed the balance on hand, and the executor of his will also claimed it as his legatee.— Held, the deposit was a trust, the depositor was the donor, the' railroad company a trustee, the regulations were the terms of the trust and the wife was the ultimate beneficiary, and that she is entitled to the balance of deposits on hand at the husband’s death.
    On bill of interpleader, answers and proofs.

      Mr. Alan S. Strong, for tbe complainant.

      Mr. Thomas E. French, for tbe defendant Charles E. Stevenson, executor, &e.

      Mr. William T. Boyle and Mr. John W. Wescott, for the defendant Ellen Y. Earl,- widow.
   Grey, Y. 0.

(orally).

Tbe bill of complaint is filed to obtain a decree that tbe defendants may interplead respecting their conflicting claims upon a fund which the complainant bolds, but in which it has no interest.

The fund in question is a balance of money deposited with the complainant company’s "Employes’ Saving Fund” by Walter Earl, Jr., who died in February, 1901, testate. The defendant Stevenson is the executor of his will. The defendant Mrs. Ellen Y. Earl is his widow. Each defendant claims to be the owner of the balance of the fund in the hands of the complainant company. The latter is a mere "custodian, indifferent between the claimants, and, by this suit, brings the money and the claimants into court, asking that they interplead.

The counsel for the defendant Stevenson, executor of Earl, while insisting on his right to the fund, admits that the complainant company has a status to ask for an interpleader decree.

The counsel for the defendant Mrs. Earl resists the complainant’s claim to an-interpleader, insisting that, on the face of the transaction, as exhibited by the pleadings, the complainant, by its own acknowledgment, is bound to pay the fund to Mrs. Earl; that there is no possible question of her right on which the complainant can ask the protection of this court, and that its bill should be dismissed.

The undisputed facts exhibited are these: The decedent, Earl, was -an engineer in the complainant company’s employ. The complainant inaugurated a saving fund depositary, whereby its employes might, subject to certain regulations, deposit moneys with the Pennsylvania Railroad Employes’ Saving Fund, and receive a book in which the deposits were entered. By the regulations, withdrawals might be made, in a prescribed mode, by the depositor, the book being balanced with each withdrawal, so that it always showed the residue on deposit. Earl became a depositor by signing and delivering to the complainant company an application in these words:

“The Pennsylvania Railroad Employes’ Saving Fund Depositary, at Camden, N. J. Station............March 16th, 1888.
“To the Superintendent of the Pennsylvania Railroad Employes’ Saving Fund:
“I, Walter Earl, Jr., of 204 York St., Camden, N. J., county of Camden, State of N. J., at present employed as...................Engineman on .........................Division or Dept., C. & A. Railroad, hereby express my desire to avail myself of the Pennsylvania Railroad Employes’ Saving Fund, upon the' terms and conditions set forth in its Regulations, as printed in the regular deposit book of the Fund.
“I agree that in the event of my death all deposits standing to my credit in said Saving Fund and all interest due thereon, shall be paid to my wife who resides at 204 York St., Camden, county of Camden, in the State of N. J., or, it not living, to my legal representatives.
“Walter Earl, Jr.
“Witness:
“J. W. Callaiian,
“Agent, Camden.”

He received a book, which contained the printed regulations' referred to in his application. At the end of these regulations, in the deposit-book, Earl signed this additional agreement:

“Camden, N. J., Station. ' March 20th, 188S.
“I, Walter Earl, Jr., of Camden, county of Camden, State of N. J., at present employed as Engineman, C. & A. Division, Penna. Railroad, having made application to become a depositor in The Pennsylvania Railroad Employes’ Saving Eund, do hereby agree to be bound by the foregoing regulations, which I have read, or have had read to me.
“Walter Earl, Jr.
“Witness:
“J. W. Callahan, ■
“Agent at Camden, N. J.”

The first book was “No. E. 28,” and was continued over into a second one, “No. E. 215.” The first entry, in .the latter book being “189?, Jany. 1. Balance from book No. E. 28, $201.61.” The balance in hand in the later book, at the date of the last item, is $1,5?8.08. This sum, amounting with interest thereon to $1,600.3?, is the fund presently in dispute, which, the complainant holds and fears to pay to either claimant.

Neither party defendant challenges the complainant’s good faith and impartiality in its attitude of a stakeholder. Each party defendant claims a right to be paid the whole of the fund— Mrs. Earl by the effect of Mr. Earl’s deposit of the fund for her benefit, and Mr. Stevenson by bequest under Mr. Earl’s will, which he claims destroys any right Mrs. Earl might have had. The complainant'stands ready to pay the fund to either, but cannot justly be required to pay it twice, and invokes the aid of this court to protect it from two hostile suits, in separate rights, to recover one fund.

The complainant, under such conditions, has an equity that it shall not be sued twice when it can have but one liability.

The counsel for the defendant Mrs. Earl advances, as his one objection to the protection of the complainant, the argument that the complainant’s" receipt of the money, accompanied by instructions to pay it to Mrs. Earl in case of Mr. Earl’s death, makes the complainant’s course so plain that it would be entirely safe in paying the fund to Mrs. Earl. But if it be admitted that Mrs. Earl probably has the better claim, and that she may ultimately show it, this does not relieve the complainant from its embarrassment meanwhile. The claim of Mr. Stevenson, as executor of Mr. Earl’s will, that the will has destroyéd the deposit agreement, is admitted to be advanced and maintained in good faith. It will not be settled by any payment of the fund to Mrs. Earl. If that were done, the complainant would be certainly left to stand the expense of defending a suit brought by Mr. Stevenson, about a matter in which the complainant admittedly has no interest, with quite a possibility that a novel question may be decided against justifiability of its payment of the fund to Mrs. Earl. In which case the complainant would be obliged to pay the money over again to Mr. Stevenson as executor.

The complainant has no duty to decide between the respective contentions of these claimants upon the fund in its hands. It is entitled to be protected from both.

I will advise a decree that the complaint be dismissed, with its costs, and a fee allowed, according to the statute, upon depositing the fund in court.

The vice-chancellor then heard testimony as to the respective claims of the defendants upon the fund.

It was proven, on the part of Mrs. Earl, that Mr. Earl, in his lifetime, had delivered both the deposit-books to Mrs. Earl, telling her that here was the money, and that if he died it should go to her, and she could get it in ten days, by giving notice to the company. Both books contained agreements, signed by Mr. Earl, to the effect that the deposits made were subject to the printed regulations. The balance on the first deposit-book was carried over into the second one, and the first book was delivered up to the complainant company. Mrs. Earl retained possession of the second book until after Mr. EarPs death, and then gave it to the executor, Mr. Stevenson, at his request that she send him the book and keys. This was in March, 1901.

Argument was then heard upon the claims of the respective defendants to the fund, on their answers, admissions on the hearing and the testimony taken.

Grey, V. G.

(orally).

The counsel for the defendant Mrs. Earl claims that the fund is in the nature of a matured insurance; that the complainant received the deposits, compensated itself for its payments of interest on it by the use of the money, and agreed to pay it over to Mrs. Earl upon Mr. Earl’s death.

The deposit scheme, as indicated by the application, the printed regulations and the agreement that they should be binding upon the depositors, lacks the elementary characteristics which attend upon an insurance. There is, no undertaking, by the company, to compensate either Mr. or Mrs. Earl in case either should suffer a loss, by death or otherwise. The transaction was a deposit made by Mr. Earl with the company, for his own benefit to the extent that he observed a specified mode of withdrawal, and for Mrs. Earl’s benefit as to any residue of the fund which remained at Mr. Earl’s death.

This appears by his original application. He applied to be admitted to avail himself of the benefits of the fund “upon the terms and conditions set forth in its regulations, as printed in the regular deposit-book of the fund.” In his application he declares:

“I agree that in the event of my death, all deposits standing to my credit in said Saving Fund and all interest due thereon, shall be paid to my wife, who resides at,” &c.

The scheme, as shown by the regulations, is a plan whereby those of the company’s employes who enter into it may save their money, have it available in ease, they may themselves choose to withdraw it in the specified mode, and be assured that, upon the death of anyone, the balance standing to his credit will be paid to the person whom he has named in his application. These are the general objects sought to be accomplished by the plan.

The regulations define the terms and conditions upon which the deposits were made. The very first one declares that the fund should be in charge of a superintendent appointed by the directors of the Pennsylvania Eailroad Company. The depositor, by this, dispossessed himself of the money deposited. Then follow provisions for the convenient depositing of money by the emplo3res, the entry thereof in a book given to the depositor, the forwarding to the company’s office of duplex tickets noting the deposit, and the allowance of interest to the depositor. There is a. provision that depositors may withdraw money by giving ten days’ notice, in the form of an order, which must be forwarded, with the depositor’s book, to the superintendent of the fund. Upon receipt of' the order and book, the superintendent enters in the deposit-book the amount to be withdrawn, deducting it from the total sum deposited, so as to show the balance after the withdrawal. The superintendent then issues an order on the treasurer of the Pennsylvania Railroad Company for the amount to be withdrawn, and sends it, with the book, for delivery to the depositor, who may draw the money on the order or deposit it in bank. The right is reserved to-require thirty days’ notice for the withdrawal of the entire amount credited to any account. In case, any depositor becomes insane, or otherwise incapacitated to act, provision is made for the payment of so much of the deposit as' may be necessary to-meet the pressing wants of the incapacitated depositor or his wife or children.

The eighteenth regulation deals with the payment of the amount on deposit at the time of the death of the depositor, and is in these words:

“18. Upon the presentation to the Superintendent of the Eund of satisfactory proof of the death of a depositor, the money belonging to him shall-be paid over only to the person designated in his application to receive same; or if the person so designated shall not be then living, said funds shall be paid either to the heirs or personal representatives of the deceased depositor as the Board may determine.”

There is no provision anywhere in the regulations which authorizes the depositor to revoke or alter the terms and conditions set forth in the regulations, or to withdraw or dispose of the money deposited in any other manner than that prescribed by the regulations. They contain no provision whatever whereby “the person designated in the application” to receive the money remaining on deposit at the time of the depositor’s death may be- changed or the rights of such person may be in anyway affected by any act of the depositor, either inter vivos or by his will, except that he may withdraw the moneys in the mode prescribed by tbe regulations, and in no other-way. All moneys not so withdrawn at the time of his death, he has directed shall be paid “to the person designated in his application to receive the same.” He has, by the express terms of his written agreement, denuded himself of all power to revoke or alter the disposition of the balance of the deposits made by him by his application and the applying regulations.

Notwithstanding the express direction of Mr. Earl, in his original application, that the balance of the deposit on hand at his death should be paid to his wife, and the explicit declaration of the eighteenth regulation that it “shall be paid over only to the person designated in the application to receive same,” counsel for Mr. Stevenson insists that the fund passed, by Mr. Earl’s will, to his executor. This contention necessarily rests upon the idea that the title to the fund remained, at all times, the property of Mr. Earl, subject to his dispoal (irrespective of the terms of the agreement) by any instrument efficient to pass his property.

Upon this construction of the transactions affecting this fund, Mr. Earl could have transferred, by assignment inter vivos, without observing any of the conditions imposed by the regulations. If the title to the deposit remained in Mr. Earl, it would, on his death, if he died testate, have passed under any general bequest of his personal estate, and if he died intestate, would have gone to his administrator, as part of the personalty whereof he died possessed. This view is destructive of the whole scheme contemplated and intended by the parties, and directly contrary to the expressed terms of their agreement.

In my judgment the effect of the agreements of the parties, and their action thereupon, was to create a trust. Mr. Earl, the donor, by his application, accepted the printed regulations as the definition of the terms of the trust. These were that the company would receive the money and pay interest on it; that Mr. Earl should be permitted to withdraw such sums as he might choose, by the observance of the mode prescribed in the regulations (which necessarily required that this should be done during his life), and that the portion of the fund not so withdrawn should, at the time of his death, be paid to his wife. In directing the payment to be made to her, he considered the possibility that she might die before him, and provided that in such case the money should go to his legal representatives. Upon these trusts Mr. Earl deposited the money with the railroad company. He divested himself of his property in the deposit, and transferred it to the railroad company, as trustee, upon the trusts above indicated. Pie ceased to own the money, and became entitled to the right, under certain conditions, to withdraw it. The company accepted the trusts, and undertook the performance of them. Mr. Earl received from the company, the trustee, the deposit-book, which was, in effect, a statement of account of the trust moneys, and an ascertainment of the balance which was subject to his withdrawal, in the mode prescribed by the regulations, and which was payable to his wife in case he died without withdrawing the fund. This book Mr. Earl delivered to his wife, as the evidence of her right to receive the balance, telling her that if he died she could get it in ten days by giving notice to the company. . If there were any doubt of Mrs. Earl’s acquiring an interest in the fund, this delivery to her of the evidence of the creation and existence of the trust for her benefit should be held to have completed the gift. She has an equitable right to enforce her interest in the fund against the trustee, the railroad company. It is true the amount which she might receive might be diminished by Mr. Earl’s withdrawals, in the mode prescribed by the regulations, but it is also true that, by the terms of the application and the regulations, ,the balance which might remain at Mr. Earl’s death was payable only to her, as “the person designated in his application to receive the same.” The time of payment to her was postponed until after Mr. Earl’s death, and the amount was subject to diminution to the extent of any withdrawals he might make during his life, in the mode required by the regulations, and to be destroyed by her predeceasing Mr. Earl. Her right in any balance that might remain became vested in her on the creation of the trust, subject to be defeated in the modes'prescribed by thé terms of the trust, but in no other way.

It was a voluntary gift by the husband donor, in trust for the benefit of his wife, completed by the donor’s delivery of the property to a trustee, who accepted the trust and delivered the evidence of it, by the deposit-book and printed regulations, to the donor, who ratified and confirmed the trust, as to the wife’s interest in it, by handing the deposit-book to her, and telling her it was for her benefit. No pecuniary consideration passing to the husband was necessary to make such a gift to the wife effectual. Title will pass by a voluntary gift, if completed, as effectually as by purchase.

The defendant executor insists that the provision for payment to the wife, after Earl’s death, is, in legal effect, testamentary, and that none of the statutory observances, necessary to the execution of an effective will, appears. The case of Beijfs Estate, 16 Pa. Supr. Ct. 80, is cited as recognizing this construction of a like agreement and regulation of deposits, which came into litigation in Pennsylvania. The learned judge who pronounced that judgment did declare that the “writing is, in a sense, testamentary, in that it is intended to take effect only in the event of the death of the depositor.” On this ground the learned judge held the direction for the payment to the wife of the balance of'the fund remaining at the death of the depositor to be a revocable writing. He upheld the direction for payment to the wife, however, declaring that the terms of the will, as expressed, did not amount to a revocation.

With very great respect for the views there expressed upon this somewhat novel question, I am unable to accept this construction of the instruments under consideration. They seem to me, upon any ascertainment of the equities of the parties, to be, in effect, the creation of a trust, as above stated, passing title, at the time of the creation of the trust, out of the donor into the trustee, subject to the terms of the trust defined by -the regulations, none of which reserve to the donor any right, in any mode, to take away the gift of the balance in hand, at his death, from the person whom he “designated in his application to receive the same.”

In our own state there are several decisions in which a delivery, by the donor, of the subject-matter of a gift to a trustee, to be handed to a beneficiary in case of the donor’s death, has been held to be a complete transfer of the title, and not a testamentary act. In Green v. Tulane, 7 Dick. Ch. Rep. 169, Vice-Chancellor Pitney reviews the cases on the point, and concludes that a deposit, resembling the present case in principle, was a completed gift, and not a testamentary act. Reservation of payment of interest to the donor during his life was held not to have affected the trust to deliver the deposit after his death. So, in Dennin v. Hilton, 50 Atl. Rep. 600, the same learned vice-chancellor held that where a deposit was made by a donor in the joint names of herself and the donee, with a proviso' that the survivor should draw the balance, the delivery of the deposit-books to the donee was an absolute delivery of the deposits, making a complete gift, notwithstanding the donor retained the right to draw the money deposited.

The gist of the question is whether the donor manifests, in the act of delivery, a complete donative purpose. If that is-shown, the fact that precedent possibilities may diminish or even destroy the gift,’ if they happen, will not be permitted to' defeat the donor’s purpose, if they do not happen.

A decree will be advised according to the views above expressed.