author: Grey, Y. 0.

text:
    Sarah R. Budd v. Emma Wilson et al.
    [Filed January 24th, 1901.]
    A will in which a testatrix declares that executors shall have power to sell “the property of which I die seized and possessed, and make a perfect title to purchasers thereof, without liability, on the part of the said purchasers, to see to the application of the purchase-money”—Held, under the circumstances of this case, to charge the lands with the payment of the legacies.
    In partition. On bill, answer, cross-bill and, by special stipulation, the' testimony of one witness.
    The complainant in this suit for partition files her bill as the grantee of Charles Frederick, one of the heirs-at-law of Catherine Frederick, deceased, claiming to be entitled to one equal undivided tenth part of two separate tracts of land, one in Camden and the other in Burlington county. The complainant makes defendants all the other heirs-at-law and certain „ legatees under the will of Catherine Frederick and also a judgment creditor of Charles Frederick having a lien on his share. The bill of complaint sets out Catherine Frederick’s will in full, and claims that the will did not devise her lands described in the bill, but alleges that the defendants, legatees under her will, claim some interest in those lands. It charges that they have no interest, and prays for the ordinary decree for partition or sale.
    Walter M. Frederick and others, who are legatees under Catherine Frederick’s will, file their answer, denying that Catherine died intestate, as to the lands in question, and averring that the legacies in Catherine’s will are a charge on the said lands. They further deny that Charles Frederick had any interest or title in the lands, and insist that his deed to the complainant is inoperative and void. By cross-bill the defendant legatees ask that their legacies may be decreed to be a charge on the lands in suit.
    The canse was heard on bill and answer, save that, by special agreement, a single witness was called to prove the facts that, at the time the will was drawn and at her death, Catherine had substantially no personal property; that she was in debt several hundred dollars, and that the list of legatees included all of her heirs-at-law, except her son Charles Frederick, the grantor of the complainant, and though he was not, his wife and children both were legatees named in the will.
    The following is a copy of the will:
    “In the name of God, amen—I, Catherine Frederick, of Philadelphia, Pennsylvania, widow, being of sound mind, memory and understanding do hereby make and publish this, my last will and testament in manner following, that is to say:

      “1st. I give and bequeath to my daughter, Emma Wilson, two hundred dollars ($200), to my daughter, Maura Madiken, two hundred dollars ($200), to my daughter, Clara Shivers, ($250) two hundred and fifty dollars, to my daughter, Kate Carlile, three hundred dollars ($300), to my daughter, Lillie Meekly, two hundred dollars ($200), to my daughter, Annie Williams, three hundred dollars ($300), to my daughter, Ella Lloyd, three hundred dollars ($300), to my son, Walter Frederick, five hundred dollars ($500), to my grandsons, John and Norman Frederick, two hundred dollars ($200) each; to my grandson, Koy Lester Frederick, two hundred dollars ($200), to my daughter-in-law, Annie Frederick, one hundred ($100) to be used for furnishing rooms; to my grandson, W. Wilson Carlile, two hundred dollars ($200), to my son-in-law, W. F. Williams, two hundred dollars ($200). '

      “2nd. I direct that my executor hereinafter named shall have full and complete power of sale of the property of which I die seized and possessed and make a perfect title to the purchasers thereof without any liability on the part of the said purchasers to see to the application of the purchase-money.

      “3rd. I nominate, constitute and appoint my grandson, W. Wilson Carlile, executor of this my last will and testament.
    “In witness whereof I have hereunto set my hand this 14th day of June, a. d. 1893.
    CATHERINE FREDERICK.
    Signed, published and declared by the testatrix as and for her last will and testament in the presence of us, who in her presence and in the presence of each other have hereunto subscribed our names as witnesses.
    “Elizabeth T. Williams, “Ella Lloyd.”

      Mr. li miry I. Build, Jr., for the complainant.

      Mr. William J. Kraft, for the defendants.
   Grey, Y. 0.

The testatrix, Catherine Frederick, from whom all parties claim their interest in the lands in question, was a widow, who died June, 1893, leaving her surviving nine children, of whom Charles Frederick was one, and one grandchild, the progeny of John Frederick, one of her children, who had predeceased her.

An inspection of Catherine Frederick’s will shows that there was neither devise of the title to her lands, nor even such express order by the testatrix for their conversion that they can be considered to have been converted into personalty. -The title therefore descended to her heirs-at-law.

Charles Frederick was one of those heirs, and received by descent a one-tenth interest in the lands of Catherine. This interest he has conveyed to the complainant, who has thus become the owner of an equal undivided tenth part of the two tracts of land of which Catherine died seized.

The real question in this case is not whether Catherine died intestate of the title to the lands—of that there can be no doubt. The essential dispute is whether she has charged those lands with the payment of the legacies given by her will.

The law makes the personal estate the primary fund from which legacies are payable, and real estate will not be charged unless the intention of the testatrix that it should be so charged is satisfactorily indicated by the language and disposition of her will. It appears to be settled in this state that the relations of a testator to his beneficiaries, the character, extent and value of his property, both real and personal, the amount of his debts, and their nature, are all considered as circumstances in view of which the testator must have acted in making his will, which are admissible in evidence in order to ascertain whether his will shows an intent to charge legacies upon his lands. Leigh v. Savidge, 1 McCart. 125.

On the hearing, the person who drew the will was a witness, .and repeated, to some extent, the testatrix’s statements of intention and inducement to the making of her will. These declarations are not admissible to aid in ascertaining the meaning •of her will, and in arriving at the views hereinafter expressed they have been disregarded.

The cause having been set down for hearing, on bill and answer, the facts set up in the answer are taken to be true. The testimony of the single witness was received by express stipulation between the parties.

From the answer and the testimony it appears that the testatrix was the mother of ten children, of whom nine were living ■at the time of her death. All of these were named in her will as legatees, save one son (Charles), who is the grantor of the •complainant. Warford Frederick, the child of the testatrix’s deceased son, John, and the children and wife of her son Charles are also named as legatees. All of those who naturally might claim consideration from the testatrix, save her son Charles, were in her remembrance in making her will, and the wife and children of Charles were not forgotten. The will was made on June 14th, 1893, and the testatrix died June 30th, 1893. The making of the will and its speaking effect were substantially coincident. At the time the will was made, and at her death, the testatrix had not enough personal property to pay the ordinary expenses of a funeral. She was the owner of the equity ■of redemption in two lots of land, the total value of which was about $3,300, and she had no other property whatever.

Under these surrounding circumstances she made a will in favor of each of her heirs-at-law, except one, and gave to the wife and children of that one. legacies in excess of those given to any other of her children. The total amount of the legacies is $3,350, while all the testatrix’s personalty did not exceed $50 in value, an amount so small that it is impossible to believe the testatrix intended it to pay the large amount of legacies given by the will.

Cases calling for the interpretation of wills are necessarily somewhat special in their character, inasmuch as each must depend in a great degree upon the particular language of the will under consideration. In seeking the intention of the testator it must be presumed that he was acquainted with the law existing when the will was made, and that he made it in contemplation of those provisions of existing law which are applicable to the dispositions of his will.

There are, on the face of this will, several indications which throw light upon the testatrix’s intentions as to charging her lands with the payment of her legacies. In the first place, that there should be any creation of a power to sell lands and gift of it to the executor, is an indication that the testatrix had some expectation that the executor should use the power for some other purpose than the payment of debts, for the executor might, at any time, obtain from the courts a power to sell to pay debts, if the necessities of the estate should require it. This presumption is more forceful when, in the will creating the power, there is no express provision for payment of debts, as in the present case, for it shows that the testatrix had in mind the use of the power by the executor for the other purposes which she did express in her will.

In Leigh v. Savidge, supra, the leading ease in this state, there was a creation of a power, but there were, in the expressions of the will and the circumstances of the estate, incidents which fully rebutted any presumption that the testator intended the power to be used for payment of legacies.

On the face of the will of Mrs. Frederick there is no expression of any possible use to which the power could be applied, other than for the sale of the testatrix’s lands for the payment of her legacies, nor is there, in the circumstances of her estate, other than the payment of legacies out of the proceeds of sale, any use to which the executor may apply the purchase-money. The will does not direct the executor either to pay debts or to divide the proceeds of the sales of the land among residuary legatees. There is neither residuary gift of the proceeds of sale, nor of the title to the lands.

Although there is no express direction to pay legacies from the proceeds of the sale of the lands, the language of the will itself indicates that the testatrix, in creating the power of sale, had in mind the.application of her real estate to the payment of her legacies. By her will she gave to her executor a power of sale, and in so doing used words which are apt and proper when authorizing the sale of the lands, but quite unusual and unmeaning when applied to a sale of personal estate. Her language is that the executor “shall have fall and complete power of sale of the property of which I die seized and possessed.” The property of which the testatrix may “die seized” is real estate.

The will also, in creating a power of sale of the testatrix’s property, declared that the executor should have power to “make a perfect title to purchasers thereof, without any liability, on Ihe pari of the said purchasers, to see to the application of the purchase-money." In using this language the testatrix could not have referred to sales of personal property, for, under the law, in the absence of fraud, there is no liability on the part of a purchaser to see to the application of purchase-money arising from the sale of personal property. Story Eq. Jur. § 1129; Eliot v. Meryman, 1 White & T. Lead. Cas. *72.

The rule as to real estate is, that whenever the trust is of a defined or limited nature, the purchaser must see that the purchase-money is applied to the proper discharge of the trust, but whenever the trust is of a general and unlimited nature, he need not see to it. Story Eq. Jur. § 1127. The purchaser is not bound to loók to the application of purchase-money to payment of debts generally. Dewey v. Ruggles, 10 C. E. Gr. 35; Story Eq. Jur. § 1131. But where the trust to sell real estate is to pay legacies, the rule is that the legacies are ascertained and definite, and the purchaser is bound to see to the application of the purchase-money. Story Eq. Jur. § 1132.

In this case the will does not devise to the executor any title to the lands of the testatrix. It does not charge her lands with the payment of debts, but it does bequeath a large number of legacies, and gives to the executor a power of sale of the property of which the testatrix dies seized, and provides that the purchaser, under the power, should not be liable for the .application of the purchase-money. Application to what? Fot to payment of debts. The testatrix left her creditors to their remedy at law, without any direction for them in her will. ’This application, contemplated by the testatrix, of the purchase-money of the property whereof she died seized, must be held to he of the purchase-money of her real estate, which was the only property of which she died seized, to the payment of the legacies, for the real estate is the only property for the application of the proceeds of which any purchaser could, by any possibility, become liable. The testatrix thus freed purchasers of her real estate from liability to see to the application of the proceeds of sale of that real estate. This provision of her will could only have been made because the testatrix intended and contemplated a sale of her real estate under the power, to pay her legacies.

This view of this case depends upon the particular language ■of the testatrix’s will, but is not in opposition to the principles declared in Leigh v. Savidge, 1 McCart. 124, and other cases cited by the complainant’s counsel.

I will advise a decree that the testatrix died intestate of the title to her lands, and that the complainant is seized of an equal undivided one-tenth part thereof; that the lands whereof the testatrix died seized are charged with the payment of the legacies set forth in her will, and that the power of sale therein given to the executor may efficiently be used to raise the money needed for that purpose.


source: Caselaw Access Project

author: Grey, Y. C.

license: Public Domain

text:
    John M. Chambers, executor, &c., v. Joseph K. Sharp et al.
    [Filed January 30th, 1901.]
    1. Where a will definitely expresses a gift of a life estate ta executors for certain purposes named in the will, and adds thereto a power for other purposes, the estate and the power being adequate to carry into effect the. intent of the testator, there is no occasion so to construe the will as to raise an implied estate in fee-simple in the executors.
    2. The testatrix gave the income of her estate for life to her brother and sister and to the survivor, and further declared, “and upon the death of the survivor of my said brother and sister, and after the sale of my real estate as hereinbefore directed, I do hereby give and bequeath” toE. M. S. and others, the gift being the residue of the estate.—Held, the words “hereby give and bequeath,” indicate a present gift, at the time the will speaks, to be enjoyed in possession upon the death of the brother .and sister, and the sale of the land. E. M. S. took at the death of the testatrix a vested interest in her legacy.
    On bill and answer.
    This bill is filed by the executors and trustees under the last will of Anna Eliza Eggman. The testatrix died in September, 1883, owning real and personal property in this state. She was a widow, and her heirs-at-law and next of kin were her brothers, Charles II. Ellis and Simeon Ellis, and her sisters, Mary Chambers and Emily Sage.
    Mrs. Eggman left a will dated January 30th, 1882, which was proven in Camden coupty by the executors, and letters testamentary were issued to them.
    The following is a copy of the will:
    “I, Anna Eliza Eggman, widow of Benjamin F. Eggman, of Camden-city, late of Haddonfield, Camden county, New Jersey, being at this time of .sound and disposing mind, memory and understanding, do make and-publish this as my last will and testament.

      “I do hereby appoint my nephews, John M. Chambers and Theodore B. Sage, as executors and trustees of and under this my said will.
    “My will is and I do hereby direct my said executors to hold my real estate in Haddorifield, New Jersey, for and during the lives of my brother Charles H. Ellis, and my sister Mary Chambers and the survivor of them, and pay the rents and profits thereof to them; and the survivor of them, deducting sufficient to pay taxes and necessary repairs and insurance', and upon the death of the said survivor to sell the same at public sale and make good and sufficient deeds for the same to the purchasers thereof.
    “I give and bequeath to the trustees of the Baptist Church of Haddonfield, New Jersey, and to their successors in office forever the sum of five hundred dollars ($500), the interest whereof shall be applied to the erection of a suitable fence around the grave-yard lot of my deceased husband, Benjamin E. Eggman, and to keep the same in proper condition and repair; and likewise so to keep the graves and lot; also tombstones to such graves that may not be so provided at the time of my decease, in said lot.
    “I give and bequeath to my niece Emily Meriam Sage my bed-room set, all my pictures, my best bed-room carpet, my silver spoons, knives and forks, my organ, bed, bedstead and bedding, my two best chairs and my two rocking-chairs. All my wearing apparel I give and bequeath to my sister Mary Chambers.
    “After the discharge of all my debts by my executors, and the payment of all necessary expenses in the settlement of my estate, my will is that my executors, acting as trustees, shall place all my money at interest on good landed security government or state bonds and pay the interest therefrom arising to my brother Charles H. Ellis and my sister Mary Chambers, and to the survivor upon the death of one, and the whole to such survivor during life. And upon the death of the survivor of my said brother and sister, and after the sale of my real estate as hereinbefore directed, X do hereby give and bequeath all my money out in trust, and the money arising from the sale of my real estate, after the payment of proper commission and expenses to my nephews John M. Chambers, Samuel E. Chambers (children of my sister Mary), my nephews Theodore B. Sage, and my niece, Emily Meriam Sage, children of my sister Emily, unto them in equal shares and unto them and their heirs and assigns forever.
    “In case the interest of the five hundred dollars $500 hereinbefore given to the trustees of the Baptist Church should be more than is needed for the purposes named, then my will is that such surplus shall be used to increase the Sundayfschool library of the said Church,” &c.
    Emily Meriam Sage, one of the legatees, to whom, in the will, the testatrix’s “money out in trust” and “money arising from sale of real estate” were bequeathed by the will, died May 10th, 1888, in the lifetime of the life tenants, Charles H. Ellis and Mary T. Chambers, or of one of them. Emily had married Joseph K. Sharp, and left her surviving her said husband and one daughter, who has since died.
    On May 10th, 1888, Emily Meriam Sharp made her will, which, on March 12th, 1889, was proven before the Camden county surrogate. By this will she gave “the share which is to come to me out of the estate of my aunt Eliza Eggman, deceased,” to her surviving husband, Joseph K. Sharp.
    The executors of Mrs. Eggman have converted part of her real estate into money, and hold this and other moneys of the estate and unconverted real estate for distribution.
    Mrs. Eggman’s executors file this bill because they are in doubt whether Emily Meriam Sharp took a vested or a contingent estate under the will of Mrs. Eggman, and whether Joseph K. Sharp, husband of Emily Meriam Sharp, received, by his wife’s bequest to him, any interest in the property in their hands. They pray a decree of this court, interpreting the will of Anna Eliza Eggman, and instructing the complaining executors in respect to their duties in distributing her estate.
    The defendant Joseph K. Sharp files answer, admitting the facts set out in the bill, and insisting that, by the terms of Anna Eliza Eggman’s will, the share of Emily Meriam Sharp became vested in her at the time of the death of the testatrix, Mrs. Eggman; that he (the defendant Joseph K. Sharp) acquired his wife’s interest under her will, and that he is entitled to receive it from the trustees. By way of cross-bill he prays that they may be required to file an account in this court, and to pay over to him the amount due to him.
    • The cause was heard on the pleadings without proof, but a statement of fact was agreed upon at the hearing that the executors of Mrs. Eggman had not, during the lifetime of Emily Meriam Sage Sharp, sold the real estate of the testatrix, Mrs, Eggman.

      Mr. Samuel H. Richards and Mr. Thomas E. French, for the complainants.

      Mr. John F. Earned, for the defendant Joseph K. Sharp.
   Grey, Y. C.

There is no gift by the testatrix in this will of the fee in the-lands whereof she died seized. The direction to the executors is-to hold real estate “during the lives” of testatrix’s brother and sister and the life of the survivor of them, and to pay the net profits thereof to them and the survivor- of them, and, upon the-death of the survivor, to sell at public sale, &c.

The obvious purpose of the testatrix, by this devise, is not to-pass title to the executors by a fee-simple estate, but only a control during the lives of the two named beneficiaries, at most but a life estate.

In addition to this devise to the executors of an estate during the lives of the testatrix’s brother and sister, there is a gift of' a power of-sale, but this does not enlarge the interest previously expressly limited to a life estate into a fee. Benz v. Fabian, 9 Dick. Ch. Rep. 618, and cases there cited.

Under these circumstances the legal title to the fee of the lands o-f the testatrix, Mrs. Eggman, descended, upon her death, to her heirs-at-law, subject to the exercise of the power of sale created by her will, and to her disposition of the proceeds of that sale. Gest v. Flock, 1 Gr. Ch. 108; Romaine v. Hendrickson, 9 C. E. Gr. 237.

By the same paragrajih in which the testatrix directs her real estate to be held during the lives of her brother and sister she directs the executors,-upon the death of the survivor of them,, “to sell the same at public sale.” This express order to sell lands will, in the consideration of this court, be held to operate-as a conversion, so that the lands will be deemed to have been converted into money from the time of her death. Cook v. Cook, 5 C. E. Gr. 316; Dutlon v. Pugh, 18 Stew. Eq. 429.

The provisions of this will do not call for the application of the principle applied in Crane v. Bolles, 4 Dick. Ch. Rep. 381, by which a gift of a fee will be implied where the testator directs acts to be done by the executor which belong to the owner of the-freehold, and which require a completé dominion over the real estate. In this case Mrs. Eggman has expressly declared the quantity of interest which she wished her executors to take, namely, to hold during the joint lives of her brother and sister- and the life of the survivor of them. What further authority they were to exercise is also definitely expressed, and is given by way of a power and not of an estate. Where the purpose of the testatrix is so clearly expressed, there is no occasion for raising an estate by implication.

It is the duty of the executors to sell the lands under the power of sale created by the will,' and not under any devise of an estate in fee to them, in trust for the purposes of the will.

The main point in dispute is whether, under the will, Emily Meriam Sharp took an estate which vested upon the death of the testatrix, or a contingent estate, capable of vesting only at the death of the survivor of the testatrix’s brother and sister. If the former, then, by the gift to him in Emily’s will, her husband, Joseph K. Sharp, is now entitled to her share. If the latter, then Mrs. Eggman must be held to have died intestate of Emily’s share, for the latter died before the vesting period, and her share is a residuary interest, which does not survive to the others in that class.

Hutchinson v. Exton, 8 Dick. Ch. Rep. 688, is cited to sustain the view that the gift could only vest by Mrs. Sharp’s outliving the survivor of the testatrix’s brother and sister. But in that case the words of gift were “whatever * * * may remain at the death of my said wife * * * shall be divided between by six daughters.” It will be noticed that the words directing division at the death of the life tenant are words not of present, but of future gift, so that the testator did not give anything until the time of division arrived. Eor the beneficiary who died before that time nothing was provided.

But in the present case Mrs. Eggman provides for her brother and sister for their lives, and then says, “and upon the death of' the survivor of my said brother and sister, and after the sale-of my real estate as hereinbefore directed, I do hereby give and' bequeath,” &c., to Emily Meriam Sage, &c. She gives hereby, that is, by her presently speaking and operating gift, to be enjoyed upon the death of the brother and sister and the sale of' the lands. The whole frame of' her .will shows .that she had1, postponed the enjoyment of these residuary gifts to let in the' life tenants, and that she directed the sale of her lands so that her whole estate should,, by her executors, be conveniently divided in money.

The ease lies within that class in which the absolute property in a fund is bequeathed in fractional interests, in succession, at periods which must arrive. The interest of the first and subsequent takers in such cases vests at the same time. See the English cases collated in 1 Bop. Leg. *584.

The same doctrine has been declared and accepted in this court, when the phrasing of the will indicates a present gift, to be enjoyed upon the happening of some future event, which must certainly take place. Thomas’ Executors v. Anderson’s Administrator, 6 C. E. Gr. 22; Beatty’s Administrator v. Montgomery’s Executors, 6 C. E. Gr. 326.

The same rule has been applied in the law courts. Green v. Howell, 1 Vr. 326. This case was unanimously affirmed on error (2 Vr. 574),'where it was held to be immaterial whether ihe gift was through the medium of a trust or not.

The result is that the legacy to Emily Meriam Sage and others -vested at the death of Mrs. Eggman, the testatrix. Upon Emily’s death it passed, by her will, to her husband, the defendant Joseph K. Sharp, who is presently entitled to receive it from the executors of Mrs. Eggman.

I will advise a decree accordingly.


author: The Ci-ianoehlor.

text:
    The Attorney-General et al. v. The Central Railroad Company of New Jersey et al.
    [Filed February 19th, 1901.]
    1. To an information by the attorney-general on the relation of a municipality may be joined a bill by the municipality asking relief appropriate to it.
    2. An information by the attorney-general on the relation of a municipality charged that a grapt by the riparian commissioners to one of the defendants included land below former high-water mark, which was within the bounds of a public highway, and that the grantee was not the owner of the ripa in front of which said portion of the land lay, but had induced, by false representations as to its ownership or control of the ripa, the commissioners to make the grant. The relief sought was the abrogation of so much of the grant as was included in the highway.—Held, that the municipality which had attempted to assert the public right in the highway by an action of ejectment against the said grantee, and had been met by a defence founded upon the said grant, might join its bill with the attorney-general’s information, and, upon such charges, ask relief tending to prevent the use of such grant in defence to the said action.

      Mr. Richard V. Lindabury, for the demurrer.

      Mr. Frank Bergen, contra.

   The Ci-ianoehlor.

The question presented by the pleading was argued before my predecessor, and remained undecided at his death. It has been re-argued before me, and the circumstances seem to call for a speedy decision.

The question presented is raised by a demurrer to an information, filed by the attorney-general in behalf of the state, on the relation of the city of Elizabeth, in which the city of Elizabeth is joined as a party complainant seeking relief. The defendants are the Central Railroad Company of New Jersey, the American Dock and Improvement Company, the Central New Jersey Land Improvement Company and the Elizabethport and New York Eerry Company. The information and bill make the following charges: That from time immemorial a common highway has existed across the state and across said city from a point on the Delaware river to a point on Staten Island sound, in the city of Elizabeth, and connecting with the navigable waters of the said sound, which said highway ought to be and remain a common highway across the said state and across said city, free and- open, for the use, benefit and advantage of the said state and of the said city; that on November 6th, IRTA, the Central Railroad Company of New Jersey made an application, in writing, to the governor of the state and to the commissioners under the Riparian acts for a grant, from the state, of lands under tide-water lying in front of twelve tracts of land in Hudson, Essex, Union and Middlesex counties, which tracts were described in the said application; that the said company therein- stated that' they were the owners of some cf the said tracts, and, by the written consent and contracts of ihe owners of the other tracts, were invested with the rights of riparian owners as to the said tracts; that the ninth tract was described in the application, and, as so described, included land abutting upon the former high-water mark in the northerly shore of Staten Island sound; that annexed to the part of the application containing the description of the ninth tract was a diagram purporting to display the said tract and the location of the said highway in relation thereto; that the Central Railroad Company of New Jersey never owned said ninth tract or any part of it; that on November 6th, 1874, the American Dock and Improvement Company, the Central New Jersey Land Improvement Company and the Elizabethport and New York Ferry Company executed a writing purporting to give consent to the riparian commissioners that a grant' of land under water, in front of the shore belonging to them, might be made to the said railroad company; that none of the said corporations which executed said writing ever owned any land within the lines of the said common highway, or any estate or interest therein, although at that time said ferry company owned two tracts of land included in the description of the said ninth tract anc], fronting-on Staten Island sound, one of which tracts lay southwest and the other northeast of the said common highway, and were binding thereon; that no other or further information was submitted to the governor and riparian commissioners as to the title or right of riparian ownership and as to the location and terminus of the said common highway than that contained in the application, being the description of the said ninth tract and the said map or diagram, and that on November 12th, 1874, the governor and riparian commissioners, relying on the said statements, made a grant to the railroad company of certain lands in front of the said ninth tract, in the description of which it is declared that part of the tract so granted was formerly under, but then was above, the tide-waters of the Arthur Kill or Staten Island sound, and part thereof was still under the tide-waters of the said sound, and that the statements in the application and the representation on the said map, that the said railroad company was the riparian owner of so much of the ninth tract as lay between the lines of the said common highway, were false and intended to deceive, and did deceive, said governor and riparian commissioners; that at the time of the said application and grant said common highway extended to the navigable waters of the said sound; that so much of the said grant as purports to convey to the said railroad company the lands, or any interest in the lands, .between the lines of said common highway and below original high-water mark therein was obtained by the false suggestions and untrue statements in the application; that since the making of the said grant the said railroad company has taken and held possession of that part of the said common highway lying below the original high-water mark, and by its use of the same has obstructed and prevented 'its use as a public highway; that on or about September 26th, 1888, the city of Elizabeth commenced an action of ejectment against the said railroad company, in the circuit court of the county of Union, to recover possession of the said part of said common highway; that in said action, by its plea and its response to a demand for a bill of particulars, the railroad company claimed title to part of the said highway under said grant; that said ejectment suit was tried, and, on the trial, the grant was offered in evidence by the railroad company and received by the court; that a verdict was rendered in said cause against the said railroad company, and upon a rule to show cause why a new trial should not be granted, certified to the supreme court for its advisory opinion, it was, in the supreme court, adjudicated and determined that the validity of the said grant could not be called in question in the said ejectment, and that, upon the advice of the supreme court, the circuit court has set aside the verdict and ordered a new trial, and that said railroad company 'intended, upon the retrial, to offer said grant in evidence as a defence to the said action, and to claim title to the said paft of said highway by reason thereof.

Upon these charges the relief prayed for was as follows: For a decree that the said grant, so far as it purported to convey said part of the said common highway, was illegal and inoperative; that the said defendant company has no estate or title in any part of the said common highway, or right to possession thereof under the said grant; that said grant might be reformed by striking out so much thereof as purports to convey to said railroad company said part of said common highway, and that the said company may be restrained and prohibited from offering or giving in evidence in the trial of the ejectment suit said grant, or from making defence to the said suit by means thereof, and that such other and further relief as the nature of the case might require should be granted.'

To this information and bill all the defendants demurred, and show the following grounds for demurrer: (1) that the information and bill did not make such a case as entitles the complainants to discovery from the defendants, or to any relief against them for any of the matters contained in the bill; (2) that the information and bill are exhibited against the defendants for distinct matters and causes, in respect to which the city of Elizabeth has no interest such as entitles it to relief against any of the defendants, or the aid of the state in obtaining any relief, or can be benefited bj any decree against the defendants, and so there is a misjoinder of parties complainants; and (3) that, by the said bill and information, there is not shown any sufficient matter of equity to entitle complainants to uhe relief sought against defendants.

The first and third causes for demurrer may, I think, be considered together.

The tract of land in question does not lie upon the waters of the Hudson river, Hew York bay or Hill von Hull between Enyard’s dock and the Hew York state line, and therefore is not within that part of the shore of the state in respect to which riparian grants were authorized to be made under the provisions of the Riparian act of March 31st, 1869. Gen. Stat. p. 2786.

The power to grant exercised by the riparian commissioners in making the grant to the Central Railroad Company of Hew Jersey, which is attacked by the information and bill, must, therefore, have been that conferred by the act of March 21st, 1871 (Gen. Slat. p. 2790), and subsequent acts. The provisions of those acts seem to have been expressly declared by the court of errors not to confer power to make grants of land under tidewater to other persons than those who are riparian owners Fitzgerald v. Faunce, 17 Vr. 536; Polhemus v. Bateman, 31 Vr. 163. When, therefore, the information and bill declare and assert that the grant in question was made to the Central railroad of lands under tide-water, in front of lands in which the said company had no ownership or title whatever, they display a grant ultra vires under the authority of the cases above cited.

The supreme court has determined that, by virtue of other acts in pari materia with that of March 31st, 1871, ubi supra, power has been conferred upon the riparian commissioners to make grants of lands under tide-water along the shore of the state not included between the New York state line and Enyard’s dock to persons other than riparian owners, but that the power thus conferred is to be exercised on the conditions prescribed for the protection of riparian owners by the act of March 31st, 1869, ubi supra. Elizabeth v. Central Railroad Co., 24 Vr. 491. Whether this construction of the acts in question is correct and reconcilable with the decisions of the court of errors, above cited, need not be considered. For, if correct, the power conferred could not be exercised in a grant to a person not the riparian owner until after a prescribed notice to such owner and his failure, for a fixed period, to apply for and accept a grant to himself. The grant attacked by the information and bill was not made upon such notice and failure, but upon the written consent of corporations, averred in the application to have been owners of the ripa in front of which the lands, a- grant of which was applied for, lay. When, therefore, the information and bill assert that none of the corporations which joined in such written consent were, in fact, owners of the ripa in front of which the particular portion of the lands covered by the grant in question lay, they display, again, and upon this construction of the Riparian acts, a grant ultra vires.

It was, however, strenuously urged upon the argument before me that the information and bill did not, in fact, deny that the Central Railroad Company or the ferry company were owners of land within the common highway claimed to have so long existed, and in front of which land below the tide-water was granted. The argument is that the averment that the ferry company is the owner of lands on each side of the highway raises a conclusive inference that they own the land within the highway between the said tracts. It is no doubt true that the owner of land acquiring title by a conveyance which recognizes the existence of a public highway on which the land abuts, is inferred to have acquired, by his grant, a title extending to the middle of the highway, whenever his grant of abutting land does not expressly exclude the land within the highway. Jonas v. Salter, 10 Vr. 468. Whenever the grant expressly excludes the land within the highway, it necessarily follows that there may be an ownership of that land in a person who is not the owner of the land abutting on the highway. H. B. Anthony Shoe Co. v. West Jersey Railroad Co., 12 Dick Ch. Rep. 607. In the case before us the allegation that the owner of the abutting land is not the owner of any part of the highway, is not inconsistent with the statement of ownership of abutting land, and is sufficient to raise a question whether the grants were within the power of the riparian commissioners, or were ultra vires. Yor do I deem it necessary that the information and bill should have disclosed the real owner and made him a party when the purpose of the bill is to aid an ejectment brought to assert the possessory right of a municipality for public use, as against a corporation in possession adversely.

In addition to the allegations of the information and bill, which, if sustained, by proof, would support the conclusion that the grant attacked was beyond the power of the riparian commissioners to make, there are allegations that the application upon which the grant was made deceitfully represented the ownership of the ripa, and that such false and deceitful representations induced the grant.

Dpon these conjoined allegations, the truth of which is admitted by this demurrer, my conclusion is that an equitable ground for the relief prayed for against the grant is disclosed.

The other question presented by this demurrer relates to the joinder of the city of Elizabeth, as a complainant, with the attorney-general appearing for the state on ’ the relation of the city.

There is no contention that a relator, upon whose relation the attorney-general files an information, may not join with the information, his own hill for relief appropriate to himself. In such case the pleading is termed an information and bill. 1 Dan. Ch. Pr. 12. An instance of this mode of pleading is afforded in Newark Plank Road Co. v. Elmer, 1 Stock. 755, in which hotly contested case there was no contention that the relators could not join their own bill and prayer for relief appropriate to them with the information filed by the attorney-general on their relation.

But the objection specified in the demurrer is that the relief prayed for by the information and bill will be ineffectual and afford no aid to the city. If this objection is valid, the bill is demurrable. Attorney-General v. Greenville and Hudson Railway Co., 15 Dick. Ch. Rep. 153.

It is obvious that so long as the Central Railroad Company holds the grant in question it may interpose it as a conclusive obstruction to any action of the city in asserting the public character of the locus in quo as a common highway. Such was the determination of the supreme court of the United States in Hoboken v. Pennsylvania Railroad Co., 124 U. S. 656. Since the decision of that case it must be considered as the settled law, to be recognized and applied in this state, that a riparian owner may not impose an easement for the public over lands below high-water mark, as against the state or its grantees, and that an easement of public way over lands reclaimed by filling in below high-water mark to navigable waters is subordinate to the right of the state to grant such lands discharged of the easement. The grant in this ease may be effectually interposed in opposition to the claim of the city to possession of the land as a public highway.

Upon the face of the grant in question there is no indication of false representation or deceitful suggestion, such as would permit it to be challenged in the action off ejectment in which it was offered in evidence, or any other similar judicial proceeding. Elizabeth v. Central Railroad Co., ubi supra. Nor was there anything in it such as was contained in the grant dealt with in Polhemus v. Bateman, ubi supra, and which was thtre held to justify the admission of evidence in opposition to the grant in a collateral proceeding. It follows that an attack upon the grant before us can only be made directly and in a proceeding such as that under consideration.

If the allegations of the information and bill are made out by proof and the grant is disclosed to have been .made upon false statements or deceitful suggestions, and if, upon the true facts, the grant is shown to be ultra vires, and if it should herein be adjudged to be void, I think the case made by the information and bill clearly indicates that the city of Elizabeth will obtain a relief which will be of value. From the facts stated and admitted the common highway which the city seeks to obtain possession of ran to the navigable waters of Staten Island sound. The highway by land therefore joined the highway by water. .The grant discloses that, at the time it was made, some part of the land granted and in front of the common highway had been filled in and reclaimed. With respect at least to so much of the said land as was thus filled in and reclaimed, the allegation that the easement of a common highway was impressed thereon discloses a right which a municipal corporation may assert. Even in respect to the lands under water not then filled in and reclaimed, the allegation of the existence of a common highway running to navigable waters would probably support a claim of right on the part of the municipality, for the doctrines laid down by the court of errors, in Hoboken Land and Improvement Co. v. Hoboken, 7 Vr. 540, must be accepted by our courts so far as they have not been overruled by Hoboken v. Pennsylvania Railroad Co., supra. If the grant attacked in this case remains undisturbed, it discharges the public easement of a common highway under the case last named. If the grant is declared void and revoked, the doctrine of the court of errors will apply. The municipality may then assert the public right and obtain possession of the lands for public use.

It results that I can discover no improper joinder of the parties- complainant, for if the purpose of the bill is made effective by a decree, the city of Elizabeth' obtains a right to assert the public easement in the lands in question.-

In the argument before me it is contended that the pleading demurred to is defective in that it discloses such laches on the part of the state and the city as disentitles them to any of the relief claimed.

Although the grant attacked is shown to have been made in 1874, the discovery of its extent as affecting the highway in question may fairly be considered only to have been made in the litigation set forth, which began in 1888. The information and bill were filed in 1891. In this view the laches is not obvious on a perusal of the pleading. In such cases a demurrer which does not explicitly state that it is grounded upon the laches is not sufficient under rule 209. Essex Paper Co. v. Greacen, 18 Stew. Eq. 504; Van Houten v. Van Winkle, 1 Dick. Ch. Rep. 380; Gulch v. Fosdick, 3 Dick. Ch. Rep. 353.

It is further contended that the information and bill are defective because' no offer to refund to the grantee what it may have paid for the grant is made therein. That the relief prayed for can only be decreed upon equitable terms, and that such equitable terms will be at least the repayment of a proportionate part of any consideration paid for the grant, is doubtless correct. But the claim relates to a small part of the lands granted, and what proportionate part of the consideration should require to be returned is not determinable until the facts are disclosed. If the failure to offer to return such sum as might be determined to be required is objectionable, I do not think it can be urged under a general demurrer without a specification of the particular objection under the provisions of rule 209.

The demurrer must therefore be overruled.


author: The Chancellor.

text:
    Abner A. Griffing v. A. A. Griffing Iron Company et al.
    [Filed April 9th, 1901.]
    1..A bill filed by a stockholder of a corporation, averring that there are accumulated profits of its business not reserved for working capital under the statute, and praying that its directors should meet and declare a dividend out of such accumulated profits, is not demurrable.
    2. A plea intended to present as a defence the pendency of another suit in a court of equity, need not expressly aver that both suits are for the same subject-matter; it will be sufficient if it states facts from which it clearly appears that they are.
    3. When such a plea is set down for hearing, its averments must be examined, and if they do not plainly show that the former suit is for the same subject-matter and that the relief sought therein will be as beneficial to the complainant as that he seeks by this bill, the plea must be overruled.

      Mr. Edward 8. Griffing, for the complainant.

      Mr. Jafiies P. Northrop, for the defendants.
   The Chancellor.

The bill of complaint in this canse was exhibited by Abner AGriffing, the complainant, for himself and all the stockholders of the A. A. Griffing Iron Company, a corporation of this state, against the said corporation and nine persons alleged to be the directors of said corporation.

Complainant thereby charges that he, his wife and son own five hundred and thirty-six out of three thousand shares of capital stock issued by the said corporation, each of the par value of $100; that the accumulated profits of the business carried on by that corporation exceed $225,000; that neither the stockholders nor the directors of the said corporation have fixed or determined the amount to be reserved therefrom as working capital; that notwithstanding the existence of such profits, the, directors have not declared or paid any dividend to stockholders since 1894.

The prayer of the bill is that defendants, who are directors of the said corporation, be decreed to meet and declare a dividend of all its accumulated profits, pursuant to the provisions of the statute, and pay the same to the stockholders.

To this bill the individual defendants filed a demurrer. The corporation interposed a plea, which was set down for argument. The questions thus presented were heard and may be decided together.

The sole ground for demurrer specified therein is that the bill lacks equity.

The purpose of the bill is to enforce, by a mandatory injunction, the duty imposed on directors of corporations by section 47 of “An act concerning corporations (Revision of 1896)” approved April 31st, 1896. P. L. of 1896 p. 277. By the provisions of that section directors are required to divide among the stockholders accumulated profits not reserved as working capital by the action of the stockholders, or of the directors, if power to make such reservation has been conferred upon them.

The argument in support of the claim that the bill is lacking in equity is that if the duty devolved by that statute upon directors in the respect in question is merely permissive, the purpose of the relief is a decree to control discretionary action; but if the duty is mandatory, complete relief would be afforded by mandamus out of a court of law.

It is obvious that mandamus would not furnish complete relief unless, perhaps, in cases where accumulated profits in excess of reserved working capital have been so ascertained and determined as to fix the amount applicable to dividends. In other cases such as that in hand a discovery and accounting is necessary to complete relief.

But in any view of the statutory provisions in question the right to relief in equity by compelling a division of profits among stockholders is, I think, perfectly settled. Such was the view expressed by Vice-Chancellor Pitney, in his opinion in Fougeray v. Cord, 5 Dick. Ch. Rep. 185. In the court of errors, Mr. Justice Garrison, in expressing the unanimous opinion of that court for a reversal of some part of the decree advised by Yice-Chancellor Pitney, distinctly approved the view of the jurisdiction of equity in such cases in this language: “The power of the court of chancery to order the directors of a trading corporation to make a division of unused profits when they improperly refuse to do so is undoubted.” Laurel Springs Land Co. v. Fougeray, 5 Dick. Ch. Rep. 756. The decree made in that ease required an accounting for the purpose of settling what remained for dividends, and the coutt of errors afterward dealt with and approved that act. S. G., 12 Dick. Ch. Rep. 318.

Upon this authority I deem the jurisdiction of equity invoked by this bill to be beyond question, and the demurrer must be overruled.

The plea interposed by the corporation defendant is intended as a plea of a pending suit in a court of equity for the same subject-matter as that presented by this bill.

As complainant did not reply to the plea or have it referred to a master, it was properly set down for argument. McEwen v. Broadhead, 3 Stock. 129; Flagg v. Bonnel, 2 Stock. 82; Davison v. Johnson, 1 C. E. Gr. 112; Miller v. United States Casualty Co., 16 Dick. Ch. Rep. 110.

A plea of this sort was formerly required to expressly aver that another suit for the same matter, to the same effect and for like relief was still pending in some court of equity. Such a general averment would doubtless be now sufficient. Dick. Ch. Prec. 98; Blake Ch. Pr. 89; Eq. Draft. 658; 3 Dan. Ch. Pr. 2130; 2 Ibid. 660; Story. Eg. Pl. *743.

A plea with only general averments of this sort could not be safely replied to, and the practice was to refer it to a master to report whether the two suits were for the same matter, and whether the first suit was yet pending. McEwen v. Broadhead, supra; Story Eq. Pl. *743; Eq. Draft, appendix form 91. When such a plea is set down for argument, and the proceedings of the former suit are exhibited before the chancellor, either by the averments of the plea or otherwise, he may determine the matter without the delay of a reference. McEwen v. Broadhead, supra; Davison v. Johnson, supra. It has, however, been settled in this state that the express averment that the two suits are for the same subject-matter need not appear in the plea, provided that it states facts that clearly indicate that they are so. McEwen v. Broadhead, supra; Davison v. Johnson, supra.

The plea before me does not expressly aver that the pending suit which it describes is for the same matter as is the subject of this bill. It is, then, requisite to examine with care the averments of the plea to discover whether its description of, the former and pending suit is clearly shown thereby to be for the same subject-matter. Meeker v. Marsh, Sax. 202.

Here it is to be noticed that the present suit seeks no decree against the defendant which has interposed this plea; jret it is obvious that the relief sought will, in fact, affect that defendant. If therefore it can show that the relief sought, so far as it affects it, has been sought directly from it, in a suit still pending, it seems to me that such a defendant may interpose the bar of a pending suit. The former suit need not necessarily be between the same parties. Story Eq. Pl. *738; 1 Dan. Ch. Pr. 660. A suit against A, which would incidentally afford certain relief, ought, in my judgment, to be barred by a pending suit' demanding directly from A the same relief.

The bill in this cause was filed June 10th, 1900, and seeks a dividend out of profits accumulated to be made by the directors.

The bill in the other suit appears, by the statements of the plea, to have been filed August 10th, 1899, in the United States circuit court for the district of New Jersey, in equity by the present complainant against the corporation defendant alone.. It is stated to have averred that the corporation was insolvent; that its business was not, and could not, be conducted so as to enable it to pay its debts and carry on its operations with profit; that a further prosecution of its business would tend to further sacrifice, injury and depreciation of the interest of the stockholders, and its prayer is said to be

“that a receiver or receivers of the said corporation be appointed to sequester the funds and assets of the said corporation, to sell its property, to wind up its business, pay its debts and divide the net proceeds among the stockholders of the said corporation.”

While the relief thus prayed will undoubtedly operate to accord the complainant and those coming in under this present suit a division of the accumulated profits averred in this bill to exist, it is obvious that such a result will be the mere incident of the relief sought by the bill in the United States court. The purpose of the two bills is diverse—one seeking the winding up and dissolution of the corporation, the other a mere division of its profits discovered and divisible. They are grounded on different matters—one on insolvency or fraud, the other on existing divisible funds. The relief sought in this suit leaves the corporation a going concern; that sought in the former suit will, if accorded, completely strip it of corporate powers. The relief asked in this cannot be accorded in the other suit, nor will the remedy in that suit be as beneficial to complainant as that he seeks in this suit. Way v. Bragaw, 1 C. E. Gr. 213; Harber v. Canfield, 45 Atl. Rep. 616.

Upon these allegations of the plea I do not think that it must be inferred that the previous suit is for the same subject-matter as the present suit.

The result is that the plea must be overruled.


text:
    Walter Zimmerman v. Louisa Place et al.
    [Filed April 16th, 1901.]
    Complainant resists the confirmation of a sale of mortgaged premises by the sheriff under decree of foreclosure, on the ground that he had given instructions to his solicitor, who attended the sale for him, which instructions, if followed, would have resulted in the purchase of the premises for complainant and benefited him.-—Held, (1) that no sufficient evidence appears of any neglect or violation of any instructions given the solicitor; (2) that if instructions were given and not followed, a purchaser at the sale will not be deprived of the benefit of his purchase unless he knew of the instructions, and of their violation, or had information putting him on inquiry, and the price at which he purchased was grossly below the fair market value.
    On objections to confirmation of sheriff’s sale of mortgaged premises on a decree for foreclosure.

      Mr. Herbert A. Drake, for the complainant.

      Mr. Samuel W. Beldon, for the purchaser.
   The Chancellor.

The complainant has interposed objections to the confirmation of the sheriff’s sale made in this cause by a petition and affidavits. The purchaser supports the sale by an answer to the petition and by affidavits.

One ground upon which complainant resists confirmation of the sheriff’s sale is that the conveyance made thereon will be inequitable as to him.

Whether, under section 4 of the “Act concerning proceedings on bonds and mortgages given for the same indebtedness and the foreclosure and sale of mortgaged premises thereunder,” approved March 12th, 1880 {Gen. Stai. p. 2111), such an objection to confirmation may be presented, or whether it can be presented by petition in the cause rather than by original bill, may, perhaps, be open to question. No objection to the consideration of the complainant’s claim in that respect has been made, and it will be considered.

The return of the sheriff discloses that his sale of the mortgaged premises produced the whole amount of the complainant’s decree, with interest and expenses. Therefore the relief sought by the bill was completely attained, and no injury to complainant is thereby disclosed. Complainant, however, sets up that he has been injured by the sale in one or two respects: (1) because he had or claimed title to a part of the mortgaged premises, and the purpose of his foreclosure was to protect or strengthen his title, which required his purchase at the sheriff’s sale, and (2) because he had acquired some tax liens upon the premises which would have entitled him to any surplus above the mortgage debt, costs and interest.

That the purchase of the mortgaged premises was not made by complainant, or in his behalf, or that the premises were not bid up to the amount which would have protected his tax liens, complainant attributes to a mistake of his solicitor, who attended the sale for him, in respect to the instructions complainant gave.

I deem it unnecessary to review the affidavits as to the instructions given by complainant to his solicitor respecting the sale. It is sufficient to say that they fail to satisfy me that the solicitor violated or neglected any instruction given him. But if I could find the contrary to be proved, no ground for depriving a bona ,fide purchaser at the sheriffs sale of the benefit of his bid can be discovered, unless the proof shows that the purchaser knew of the instructions, or at least had information which would have made it his duty to inquire in respect to them. The affidavits do not show that the purchaser had any such knowledge or information, and his answering affidavit is full and explicit in denial thereof.

This ground for refusing confirmation cannot prevail.

Since the whole claim made by the complainant by his bill was thereby satisfied, no injury to him is disclosed in respect to the relief sought. Therefore he cannot complain of inadequacy of price, unless he shows a right to surplus moneys raised by the sale. It is deemed unnecessary to consider whether complainant has exhibited any right to surplus money raised by his sale on foreclosure of his mortgage, for no inadequacy of price is made to appear.

The tax liens now claimed by him, if valid, are encumbrances superior to the mortgage foreclosed, and not barred by the decree. Gen. Stat. (tit. “Taxes” &c.) ¶. 8859 § 868.

By the clear weight of evidence the market value of the Cape May City property at the time of the sheriffs sale did not exceed $1,000.

At the sale complainant’s solicitor gave notice that the property was encumbered by prior mortgages and by the tax liens. What was the amount of such encumbrances was not disclosed, nor then determinable. Under such circumstances, the bidder took tlie risk of offering what he deemed proper under the uncertainty caused by such an announcement. When it appears, as it does, that the amount bid, added to the amount of the tax liens, very nearly, if not quite, equals the market value of the premises, the purchaser should not be deprived of the advantage of his bid. Public policy requires the confirmation of judicial sales made regularly, without fraud or accident or mistake preventing fair competition, when the price is not unconscionably below the value of the property. Morrisse v. Inglis, 1 Dick. Ch. Rep. 306.

The sale must be confirmed.


text:
    Frank A. Dillingham v. Aubrey H. Martin et al.
    [Filed May 15th, 1901.]
    1. Testatrix, by her will, and a codicil thereto, appointed her husband and her son executors, who proved the will and codicil in the orphans court, of her domicile, and received letters testamentary thereon. The residuary estate, consisting of real and personal property, was bequeathed and devised to the executors and the survivor or successor of them, in trust, to convert the same into cash, and invest the same and pay the rents, interest and dividends to the husband for his life. The husband was given power to dispose of the trust fund by his last will. Upon the failure of the husband to execute such power, it was directed that it should be divided into equal shares, one for each of her children surviving her, and one for the children of any child having died leaving child or children living at her husband’s death. The surviving trustee was empowered to designate and set apart, and invest and reinvest one of such shares to each child, and one to the child or children of each deceased child, and to pay the income, &c., to the person for whom the share was designated and set apart, for the natural life of such person, and at death to the next of kin of said person, to whom there was an express gift. Authority was given to the trustees to advance a portion of the principal of each share to the person for whom it was designated and set apart, “whenever said trustees or the survivor of them shall deem it expedient in view of the necessities, comfort or welfare of such person or persons.”

      2. The husband died without making disposition of the trust fund under the power. The son applied to and was discharged by the said orphans court from his executorship and trusteeship. Complainant was appointed by that court administrator do bonis non- With the will annexed, and trustee thereunder.
    3. On bill for the construction of the will and direction to the complainant as to his power to advance part of the principal of a share to the person for whom it was designated and set apart—Held, (1) that the gift to the next of kin, though general in terms, was limited by the subsequent provisions for advances, so that, at the death of the person to whom a share was designated and set apart the next of kin would take only what remained after advances made in pursuance of the power given; (2) the surviving trustee was therefore empowered to make advances at his discretion, upon a determination that it was expedient for reasons included in the grant of power ; but, (3) the power thus conferred was coupled with a trust to be exercised in the discretion of the trustee appointed by the will, and may not be exercised by the trustee substituted under the appointment of the orphans court.
    . 4. By the will the trustees were granted power and discretion to use any part of the principal of either or any of the funds therein granted to them for the purpose of improving real estate devised.
    5. On a prayer for direction as to the power of complainant to use funds to improve the real estate yet unconverted into cash—Held further, (1) that since on the death of the husband it became the duty of the surviving trustee to divide the trust fund and designate and set apart the shares to certain persons, it may be questioned whether he would haye power to employ any of such individual shares in the improvement of real estate not converted into cash; but that (2) if the surviving trustee possessed such power it was coupled with a trust, exercisable on his discretion and judgment as to the mode and manner of improvement, and the power, if thus given, is not one to be exercised by the substituted trustee.
    Oil bill for the construction of the last will and testament of Mary T. Martin, deceased, and a codicil thereto, and for direction to complainant, who has been appointed administrator with the will annexed and trustee thereunder.
    The will of Mary T. Martin was dated April 35th, 1892, and, by the first paragraph thereof, her husband, Archer 1ST. Martin, was appointed sole executor.
    The sixth paragraph, or so much as is important, reads as follows;
    “All the rest, residue and remainder of my estate of every name and nature * * * I give, devise and bequeath to my husband, Archer N, Martin, and Charles E. Kimball, to have and to hold the same to them or the survivor or successor of him or them, or their or his heirs- forever; but in trust, nevertheless, to'and for the following uses and purposes to wit:
    “To convert the same into ■ cash, and to invest and reinvest the same from time to time at their discretion, or the discretion.of the survivor or successor of them in such manner and in such securities or investments, real or personal, as to him or them may seem best, and to take, collect and receive the rents, issues, interest, income, dividends and profits thereof and pay the same over to my said husband for and during his natural life, to be used and employed by him wholly at his discretion for the benefit of himself and the comfort, education and support of my children.”
    The seventh paragraph reads as follows:
    “Seventh. I hereby empower my said husband to dispose of the trust fund mentioned and referred to in the foregoing sixth section, or so much thereof as shall remain in the hands of the said trustees at his death, by his last will and testament in such manner as he shall deem best; but in the event that he shall fail to exercise said power of disposition, I direct that then said trust fund be divided into equal shares, one for each of the children I shall leave, and one for the child or children as the case may be, of any and every of my children who may then have died leaving child or children living at the time of the death of my said husband; and I empower the trustee who shall survive my said husband to designate and set apart and invest and reinvest one of said shares for each of my surviving children, and one for the child or children, as the case may be, of any deceased child or children of mine (a share for the child or children of each deceased child), and to pay over the rents, income, issues and profits of each share accordingly, to the person or persons for whom the same shall be so designated and set apart, for the natural life of the said person or persons, and at the death of the said person or persons the share is to go to the next of kin of such person or persons, and I give the same accordingly; and I hereby grant to the said trustees and the survivor of them, the broadest discretion as to the property or securities in which to make investment. And I hereby authorize and empower them to advance a portion of the principal of the share to the person or persons for whom the same may be set apart and designated, whenever said trustees or the survivor of them, shall deem it expedient in view of the necessities, comfort or welfare of such person or persons.”
    By the eleventh paragraph of the will it is thus provided:

      “Eleventh. X hereby grant to my executors and trustees hereunder full power of sale of any and all my estate upon credit or for cash, and I hereby empower them to execute such proper deeds, assignments or conveyances as shall -be necessary or proper to enable them to execute such sale or sales, and I hereby further grant to them full power, authority and discretion to use any part of the principal of either or any of the funds therein granted to them for the purpose of improving real estate devised by me, or for the purpose of maintaining the same in good condition, and I hereby grant to my said trustees right, power and discretion to change investments which they shall make from time to time, and to invest the fund submitted to their care in safe interest bearing or dividend paying securities, or on bond and mortgage or in improved real estate.”
    By a codicil to the said will, made on the 26th of May, 1894, the testatrix appointed her son, Aubrey FI. Martin, co-executor with her husband, Archer F. Martin, and revoked the appointment, contained in the sixth paragraph of her will, of Charles E. Kimball as co-trustee with her husband, Archer F. Martin, and appointed her son, Aubrey H. Martin, as co-trustee with her husband, in the place of the said Charles E. Kimball, to execute the trust in said paragraph declared.
    It appears by the proofs that Archer F. Martin, the husband of the testatrix, died intestate, and without disposing of the trust referred to in the sixth section of the said will.
    It further appears by the proofs that Aubrey H. Martin, who survived his father, was, upon his own petition, discharged from his office as executor and trustee under said will by the orphans court of Union county, in which county the will and codicil had been proved.
    It also appears by the proofs that afterward the complainant was, by the said orphans court, appointed administrator with the will annexed of the said Mary T. Martin, deceased, and trustee thereunder.
    The direction of the court is asked upon two points, vis.:

      First. Whether the complainant, as trustee, has power, under the seventh item of the will, to advance a portion of the principal of the estate to the person or persons for whom a share thereof may be set apart and designated, pursuant to the provisions of the said will, if he (the complainant) shall deem it expedient in view of the necessities, comfort or welfare of such person or persons.

      Second. Whether, under said will, the complainant has power, authority and discretion to erect dwelling-houses and other buildings for the purpose of improving the real estate devised by the testatrix, and, if he has such power, what funds may be used by him for that purpose.

      Mr. Joseph Cross, for the complainant.

      Mr. Atwood L. Be Coster, for the defendants.
   The Chancellor.

The direction first sought by the complainant is put, by his bill, upon the ground that one of the beneficia]’]es under said will has applied to the complainant to advance to him a portion of his share of the principal of the trust fund, under the provisions of the seventh paragraph of the will, and that such applicant asserted that the condition under which such advance might properly be made existed in his case at the time of such application. What the conditions were has not been disclosed. Assuming that, as charged, they would justify the exercise of the judgment of the trustee, whether or not the advance asked for should be made, I think the complainant maj'' properly ask the direction of the court as to his power to exercise a discretion, and make a judgment respecting such demanded advance. While he maj'' not call upon the court for counsel or advice, he may ask the court to decide and direct what he should do when action by him as trustee is demanded, and his duty to act is involved in doubt. Griggs v. Veghte, 2 Dick. Ch. Rep. 179.

It will simplify the discussion to consider, first, whether or not the trustees originally appointed by the will had power to make such an advance as has been applied for. By the scheme of the sixth and seventh paragraphs, the residuary estate of the' testatrix was devised and bequeathed to trustees to convert into cash and invest at their discretion, and to pay the rents, Interest and income thereof to the husband for his life. In the event that the husband did not exercise the power of disposition conferred upon him by the seventh paragraph, the trust fund was to be divided into equal shares, and each share was to be designated and set apart for her surviving children, and for the child or children of any deceased child or children, and the trustee was to pay over the rents and income of each share to the person or persons for whom the same should be so designated or set apart for the natural life of the said person; and at the death of such person or persons to pay the share set apart to the next of kin of such person or persons. That each share should go to such next of kin is expressed by testatrix’s language: “1 give the same accordingly.” If the paragraph contained no other provisions, it is obvious that the beneficiary of each share acquired no right except as to the income during life. At the death of each beneficiary the share would be payable to his or her next of kin. If the testatrix designed to allow the beneficiaries for life to obtain some part of the ■ principal, it would seem that she would have naturally confined the gift to the next of kin to so much of the share as should not have been advanced to the beneficiary for life. But although the gift appears to be of the whole share, yet the words of gift must be read with, and may be limited by, the last clause in the same .paragraph, whereby testatrix conferred upon the trustees the power to advance a portion of the principal of each share to the person or persons for whom it had been set apart and designated, “whenever said trustees or the survivor of them should ■deem it expedient in view of the necessities, comfort or welfare of such person or persons.” As the shares are not to be ■set apart until after the death of the husband, who was trustee, it is obvious that this grant of discretionary power, if bestowed, was to be exercised by the surviving trustee.

Reading the whole paragraph together, I think, it does not .admit of doubt that the trustee appointed by the will and codicil of testatrix who survived the-husband became possessed of discretionary power to advance to any beneficiary a portion of the share set apart to him or her, upon the judgment of such trustee that it was expedient for the necessity, comfort or welfare of .such beneficiary.

One of the trustees having died and the other trustee having withdrawn and been discharged from his trust, the question is whether complainant, who is a substituted trustee, may exercise the power which I have thus concluded was conferred upon the surviving trustee named in the will and codicil.

The appointment of complainant was made under the provisions of section 129 of the Orphans Court act of March 27th, 1874 (Gen. Stat. p. 2886), which provisions have been re-enacted in section 151 of “An act respecting the orphans court, and relating to the powers and duties of the ordinary and the orphans court and surrogates.” P. L. of 1898 p. 715. By these provisions the orphans court is empowered to appoint a person in place of an executor or trustee thus discharged, and it is expressly enacted that the person so appointed shall be authorized +o do all acts necessary for the administration and settlement of the estate, and the execution of the powers and performance of the trusts contained in the will, in the same manner and to the same effect as if such person had been named as executor or trustee in such will.

Notwithstanding this very broad’ grant of authority, it is settled in our courts that a trustee thus appointed and substituted may not perform all acts which the will of the testator authorized the trustee thereby appointed to perform. Where the power conferred upon the trustee appointed by the will is a power coupled with a trust to be exercised in the discretion and upon the judgment of the trustee, the trustee appointed and substituted under the statute does not acquire the right to exercise the power upon his own discretion or judgment. Read v. Patterson, 17 Stew. Eq. 211; Pedrick v. Pedrick, 3 Dick. Ch. Rep. 313; S. C., 5 Dick. Ch. Rep. 479; Weiland v. Townsend, 6 Stew. Eq. 393.

The power conferred upon the trustees under the will and codicil in question was coupled with a trust and exercisable-only upon the discretion of the trustees.

It results therefore that complainant, who is a substituted trustee, may not, in his own discretion and upon his own judgment, make an advance which the original trustee under the will and codicil who survived had authority to make at his disr cretion, out of the share designated and set apart for the beneficiaries for life.

It-does not necessarily follow that such advances may not be made, for it may be that the court may require the substituted trustee to execute the trust, under equitable rules prescribed by it, and upon its order or decree, upon the facts requiring action being exhibited to it. Weiland v. Townsend, ubi supra.

The remaining prayer of the bill is for direction whether complainant has authority, under the will, to erect dwellingrhouses and other buildings on the real estate devised by-the testatrix, and, if he has such power, what funds he may use for that purpose.

This request calls in question the clause in the eleventh paragraph of the will, which reads thus:

“I hereby further grant to them [the trustees appointed by the will], full power, authority and discretion to use any part of the principal of either or any of the funds herein granted to them for the purpose of improving real estate devised by me.”

The bill discloses no ground upon which complainant, as substituted trustee, is called upon to act in the exercise of any power to improve the devised real estate by buildings, except that he declared his opinion to be that it would be judicious to do so. As the bill also discloses that there are yet ten dwelling-houses upon the real estate devised by testatrix which have not been converted into cash according to the express directions of the will, it seems that such improvement may not aid in the performance of the duty to convert.

It is further observable that since the death of the husband of testatrix, without having made a disposition of the estate, another duty was, by the will, expressly imposed upon the surviving trustee, which duty now devolves upon the substituted trustee. He is required to divide the trust fund into certain shares and designate and set apart one share to each of certain persons. If the fund has been converted into cash and invested as directed, the complainant, as substituted trustee, may per-, form the duty of division and designation.

The authority given to the trustees by the will to improve the real estate may be construed to be given in aid of the conversion thereof into cash. While the estate remained for the use of the husband and subject to his power of disposition, such improvement would demand the discretion and judgment of the trustees appointed by the testatrix. But after the death of the husband, without making any disposition of the property, it may he questioned whether the survivor of the trustees appointed by the will retained the power of improvement in the face of the provision for a division of the fund and its designation for the benefit of the beneficiaries.

It is hardly conceivable that testatrix intended to authorize the surviving trustee to use funds designated and set apart for one beneficiary to improve real estate not yet converted.

However that may be, it is clear that the trustee, if he retained the authority to improve, could only exercise such authority when, in his judgment, it was judicious to do so. If retained, the power was one involving discretion, and, for. the reason above given, it did not pass to or become vested in the complainant by his substitution as trustee.

The complainant, having no power to make the improvement, no duty in that direction is cast upon him.

A decree will be made in conformity with this opinion.