author: Lewis, Yioe-Okdinaey.

text:
    In the matter of the estate of Jennie Banvard, deceased.
    [Decided February 27th, 1914.]
    1. It was immaterial that a petition for the probate of a will did not mention the contestants amongst the heirs and next of kin, although their existence was known, as the surrogate is not required to give notice of the application to the heirs and next of kin, who must protect their own interests, and may still appeal to the orphans court after the ten days for filing caveats.
    2. The proponent of a will who occupied a position of trust and confidence towards the testatrix by reason of being her adviser and attorney, and who had opportunity to exert influence over testatrix, who lived in his house, had the burden of showing that he did not procure the making of the will under which he was the chief beneficiary by undue influence.
    3. The preponderance of the evidence on the probate of a will held to show its due execution at the time and place alleged.
    4. Evidence on the probate of a will held suflicient to overcome the presumption of undue influence on the part of the proponent, who occupied a position of trust and confidence towards the testatrix, with opportunity to exert influence over her, and was the chief beneficiary.
    On appeal from the decision of orphans court.

      Mr. Edward Maxson and Mr. Richard E. Weldon, for the ajipellant.

      Mr. Nathan A. Pendergast, for the appellee.
   Lewis, Yioe-Okdinaey.

This is an appeal taken from a decree of the Hudson county orphans court, admitting probate of an instrument offered for probate as the last will and testament of Jennie Banvard.

George C. L. Maes was named as the executor in said instrument and is the principal beneficiary thereunder.

The will is dated on October 25th, 1912; the decedent departed this life on November 20th, 1912; the instrument purporting to he her last will and testament was offered for probate on the 2d day of December, 1912; probate having been allowed by the surrogate, an appeal was taken to the orphans court of Hudson county, which upheld the probate of the will, and thereupon an appeal was taken to this court and argued on November 24th, 1913.

The opinion of the court below does not indicate the grounds upon which it arrived at the conclusion that the instrument offered should be offered for probate.

The testimony shows that the decedent was an elderly woman, somewhere between fifty and sixty years of age, who had lived in the house in which she died for a great many years, with the exception that when her mother died, which took place about a year and a half before the death of the decedent, she went to live in the house of George C. L. Maes, a neighbor of the family, who was a justice of the peace for Hudson county; she lived there until October 25th, 1912, the day on which the instrument purporting to he her last will and testament is dated. On the day on which the will is alleged to have been executed, decedent left the house of Maes and went to her own house, where she remained until her death.

The will was prepared hy Maes, the chief beneficiary and executor of the will.

Jennie O’Neil, one of the heirs-at-law of the decedent, is the appellant.

The will is contested on the ground that execution of the will was not established by credible evidence, and on the ground, that it was obtained hy the exercise of undue influence on the testatrix.

The will was offered for probate hy Maes, and much is attempted to he made out of the fact that, although the executor knew of the existence of the contestants, he did not mention them as next of kin or heirs-at-laiv in the petition for probate.

I do not see that there is very much force to that argument, however, as the surrogate is not required to notify the heirs- or next of kin of the application for probate, and they are required to protect their own interests without any notification from the surrogate, and after the ten days have elapsed for the filing of caveats, they still have their right of appeal to the orphans court.

A clear prima facie case as to the execution of the will was established by the subscribing witnesses, and Maes was called to the witness-stand by the appellant and examined at considerable length, and it was shown that he occupied a position of trust and confidence towards the decedent, and that he had plenty of opportunity to exert influence over her mind, and there can be no doubt that the burden of establishing that he did not use undue influence over her in regard to the making of the will rests upon him.

The decedent and her mother both had great confidence in Maes, according to his own testimony, and that they consulted biru in regard to their business affairs, and he says that he'was all the attorney she (meaning the decedent) had, that he did not know of any other attorney that she ever consulted. He says that about a week or so before the will was executed the decedent had a conversation with him about it in his house, where she was living at that time. He says that the decedent was ill at that time, but that she claimed she was not ill but only felt lazy. He says she was an anaemic. Miss Wittpen, a nurse, came to see Miss Banvard, the decedent, at the house of "Mr. Maes, but Maes testifies that he did not know that she was nursing Miss Banvard. On the day the will is alleged to have been executed, Miss Banvard returned to her own home, where Miss Wittpen was living with her, and the will is alleged to have been executed in Miss Banvard’s own home on that day. The subscribing witnesses, one of whom is an architect and the other a surveyor, both swear to the due execution of the will at the home- of Miss Banvard on the day it was alleged -to have been executed, and Maes corroborates them. Miss Wittpen, however, denies very -emphatically that any of them were at the house of Miss Banvard at all on that day. Mr. Maes has desk room in the office of the architect who has been mentioned as having been a subscribing witness, and the other subscribing witness, the surveyor, was frequently employed in the same office by the aforesaid architect. The preponderance of the evidence as to the due execution of the will at the time and place alleged is greatly in favor of the proponent of the will.

The remaining question as to whether the proponent has sustained the burden of proof, that he did not exercise undue influence over the mind of the testatrix in regard to the making of the will is a much more serious question. He was the scrivener of the will; He was her trusted friend and adviser; he was the chief bePeficiary, and he had ample opportunity to influence her. The law says that a witness to a will cannot take a legacy, and it would almost seem as if such a rule should apply to the present case and should be extended to such cases. However, such is not the law.

He denies that he attempted to influence her in any way in regard to the making of the will. He says that she told him a week before making the will that she was going to see what she had and that she would let him know what she wanted to do. A memorandum in Miss Banvard’s handwriting was offered in evidence in corroboration, and he says that this is the memorandum from which she gave him the directions as to the provisions to be contained in her will, and he testified that at that time he made his own memorandum, which was also offered in evidence, and he explained the slight difference between his own memorandum and that of the testatrix.

The proofs in this case lead me to the conclusion that the appellee has sustained the burden of proof cast upon him, and that the paper-writing produced and executed by Jennie Banvard ought to be considered as her will and admitted to probate as such.

The decree below must be affirmed.


source: Caselaw Access Project

author: Grieein, Vi c u-Ordi nary.

license: Public Domain

text:
    In the matter of the probate of the alleged will of Alice G. Van Handlyn, deceased.
    [Submitted October 4th, 1913.
    Decided October 11th, 1913.]
    1. Evidence held not to show that the document sought to be probated was intended by decedent to be testamentary.
    2. If there is no attestation clause to an alleged will reciting compliance with the statutory requirements, the burden of proving compliance therewith is on proponent.
    8. Where two of three witnesses to an alleged will did not know that the instrument ivas intended as a will, there ivas not a compliance with the statute as to publication.

      Mr. Michael J. Tansey, for the proponent.

      Messrs. Lu-m, Tamb'lyn & Golyer, for the respondents.
   Grieein, Vi c u-Ordi nary.

The proponent presented her petition praying probate of a paper-writing as the last will and testament of Alice G. Van Handlyn. deceased, a copy of which writing is as follows:

"I, Alice G. Van Handlyn, in consideration of one dollar, do hereby assign to my sister Anna C. Van Handlyn all my property, both real and personal, also ten shares of the Montclair Building & Loan Association, and any moneys left in my name in the Bank of Montclair and in the Montclair Trust Company.
“Signed in the presence of _ “Alice G. Van Handlyn.
“Alexander E. Wbenscii.
“John Van Handlyn.
“William B. Williams.
“Dated this 30th clay of March, 1912.”

The above instrument assigns real and personal property to be presently enjoyed by the assignee. No idea of vesting at a future day, nor of testamentary intent appears on its face, unless it can be drawn from the closing clause “and any moneys left in my name in the Bank of Montclair and in the Montclair Trust •Company.” This language, with the testimony in the canse, the proponent argues justifies a finding that the instrument is the last will and testament oí the deceased and is entitled to probate.

It was conceded by the respondent that parol evidence is admissible to explain the intent of the maker of an instrument similar to the above ; and the paper might be admitted to probate if testamentary intent was satisfactorily proved, together with execution in compliance with our statute of wills.

The case raises two questions—

First. Did the deceased intend this instrument to be her will?

Second. Was this paper, if treated as a will, published in compliance with the statute ?

First. The deceased, in her lifetime, was engaged in .the dry and fanc-y goods business in Montclair, where she resided for a number of years prior to her death. Eor some time prior to the date of the above instrument she had been, quite ill and so continued to the date of her death, during which time her sister Anna, mentioned in said instrument, attended to her business. On March 30th, 1912, being doubtful of her recovery, she asked her family physician to send for William B. Williams, whom she had known for a number of years, and who was an actor and justice of the peace, to prepare some papers for her, and it is here that the conflict in the evidence begins. Dr. Wrenseh says that ho called Mr. Williams on the telephone and told him that Alice desired him to draw her will, and afterwards called on Mr. Williams with his machine and took him to the home of Alice. Mr. Williams, who drew the paper and was a witness, denies this, saying that the message was that “Alice Van Handlyn wanted me to fix up some papers for her" without stating what the papers were. He admits, however, that he supposed she wanted to make a will. He also denies that Dr. Wrenseh called for him in bis automobile and took him to Miss Van Handlyn’s home. In this he is supported by his son and John Q. Van Handlyn. On Ms arrival Mr. Williams testifies that Alice told him she wanted to draw a bill of sale. “T want to turn my business over, so if anything happens to me that everything will be properly taken care of," and “I want to fix up a-piecc of paper so that my sister can go on and do business, my sister Anna can go on and cany on business.”

“She said she merely wanted some paper drawn to show that her sister Anna could go on and do business, pay the bills and collect bills and make cheeks and have charge of the bank account and the building and loan account. That is about the drift of what she wanted.”

He says further:

“Q. When you signed that instrument did you consider that you were signing a will?
“A. No, I considered it as a bill of sale, and so understood at that time, so that her sister could go on and do business; that was all I knew, as far as I could understand Miss Van Handlyn’s ideas.”

John G. Van Handlyn, the brother of the deceased, and a witness, testified that the deceased said to him,

“Brother, you know if anything happens to me, why I want everything to be fixed so that Anna can take care of everything and she will look after you and my sister, you and Margaret.”

He says that no one mentioned to Mm that this was a will. He says further that the deceased said to him, "How, I want my onliest brother to sign this; I do not think everything will be all right unless I have his name on it.” I said, "Well,-sister, it is not necessary for me to sign it.” "Well,” she said, "I want you to,” so I signed it to please her.

Dr. Wrensc-h, the remaining witness to the paper, testifies positively that Alice declared it to be her will.

Mrs. Higgins, who was present and held the ink bottle while Mr. Williams wrote, said Alice declared it to he her will. This latter witness, however, talked in such a rambling fashion, with her mind so centred on the one idea that this was a will, that it is difficult to determine whether she testified to facts or conclusions.

In Cowley v. Knapp, 42 N. J. Law 297, Mr. Justice Dixon, speaking of language similar to the expression "if anytMng happens to me,” said it clearly indicated that it (the instrument) was intended to take effect only in the event of death, but there the language construed was in the instrument, and the whole tenor of it indicated a testamentary disposition. Here the language is not in the instrument, but comes from the lips of witnesses who were present at the signing of the paper and who testify to directions given by the deceased to the scrivener for the purpose of drawing the instrument from which the intent not only to dispose of her property after death, but before, might reasonably be inferred.

While it is very likely that the deceased believed when she signed this paper-writing that she was making her will, and if properly advised it would have taken that form, yet, considering the character of the instrument, drawn as an assignment, with nothing on its face clearly indicating testamentary intent, the conflicting testimony as to what transpired when the paper was drawn and signed, the testimony of the scrivener that he understood he was drawing not a will but a bill of sale, it is clear that the proponent has not sustained the burden of proving that this document was intended by deceased to be her will and testament.

Second. Was the paper, if treated as a will, published in compliance with the statute?

The testimony shows due execution in every respect excepting publication of the instrument as her will. There is no attestation clause annexed, reciting compliance with the statutory requirements. The burden of proving the same is therefore cast on proponent. In re Veazey, 80 N. J. Eq. 466; Bioren v. Nesler, 77 N. J. Eq. 560; Swain v. Edmunds, 53 N. J. Eq. 142; S. C. affirmed, 54 N. J. Eq. 438; Vernon v. Vernon, 69 N. J. Eq. 759.

The evidence above referred to casts considerable doubt not only as to the declaration of the deceased, but also as to the character of the paper she was about to execute. The scrivener who drew it up and was a witness, says he did not understand that he was preparing a will, but, on the contrary, believed it to be a bill of sale. John, the brother of the deceased, said the word “will” was not mentioned. The force of his testimony, however, is somewhat weakened because of his interest. Dr. Wrenseh, the remaining witness, testified to due publication as a will. Mrs. Higgins, wlio was present, testifies to due publication, but for the reasons above given I do not attach much weight to her statements.

In Mundy v. Mundy, 15 N. J. Eq. 290, the ordinary, in speaking of publication, said: “The witnesses must Know it is the will of the testator they are witnessing, and they must witness .at his request.” To the same effect is Darnell v. Busby, 50 N. J. Eq. 725 (at p. 731).

As two of the witnesses did not know that the instrument was intended as a will, it follows that the statute as to publication was not complied with; and being thus in ignorance of the fact that the instrument was intended by the deceased to be her will, it is apparent that they did not sign as witnesses in attestation of the due execution of a will at the request of the deceased.

I "will advise a decree refusing probate.


author: Gummere, Chief-Justice. Garrison, J.

text:
    Philip T. Marvel v. William E. Jonah.
    [Argued November 20th, 1913.
    Decided June 15th, 1914.]
    1. Upon the dissolution of a copartnership agreement between the complainant and defendant, and another, who were physicians practicing their profession in the city of Atlantic City, because of continued violations by the defendant of certain provisions contained in the copartnership agreement, the complainant is entitled to the enforcement against the defendant of a restrictive covenant, contained in that agreement, by the terms of which the defendant hound himself, in case the partnership was terminated because of violations of the contract by him, to refrain from practicing his profession in said city for a period of three years thereafter.

      2. The damages arising from the breach of such a covenant would be continuing, accruing from day to day, and it would be impossible to ascertain the money loss sustained by the complainant therefrom with anything approaching accuracy. A suit at law therefor would afford no adequate remedy, and when this is the case the court of chancery should enforce the covenant by granting an injunction to prevent the breach of it.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 81 N. J-. Bq. ¡3M.

      Messrs. Bourgeois <£• Coulomb, for the appellant.

      Mr. Allen B. Endicotl and Mr. Robert H. McCarter, for the respondent.
   The opinion of the court was delivered by

Gummere, Chief-Justice.

The complainant and defendant are practicing their profession in the city of Atlantic City, together with one Dr. Durand, as partners. The bill filed by the complainant prays an accounting from the defendant, the dissolution of the partnership relationship between them, because of continued violations by the defendant of certain provisions contained in the partnership agreement, and the enforcement against the defendant of a restrictive covenant contained in that agreement, by the terms of which the defendant bound himself, in case the partnership was terminated because of violations of the contract by him, to refrain from practicing his profession in Atlantic City for a period of three years next thereafter. The learned vicé-chaneellor before whom the case was heard in the court below held that the complainant was entitled to an accounting, and to have the partnership dissolved because of breaches of the partnership agreement by the defendant, but refused to enforce against the latter the restrictive covenant, because he considered that to do so "would be unjust and unnecessarily oppressive.”' From so much of the decree as refuses an injunction against the defendant restraining him from practicing in Atlantic City during the stipulated period the complainant appeals.

Dr. Marvel began the practice of medicine in Atlantic City about 1884. His practice gradually grew to such an extent that in 1905 it became necessary for him to employ an assistant. Dr. Jonah, who had graduated from a. medical college five years before that time, was selected by him for that position. In 1906, Dr. Marvel found it desirable to employ a second assistant, and took in Dr. Durand. In 1908, the complainant and defendant entered into a parol partnership agreement which, in 1910, was superseded by that which is involved in the present controversy. It is apparent from the proofs that the present development and value of the practice of the firm is, in large measure, due to the efforts and reputation of Dr. Marvel; and that his purpose in having the restrictive covenant put in the partnership agreement was to prevent the younger members of the firm; after having been brought into association with his patients, as his representatives, from setting up an independent practice in Atlantic City, and taking with them such patients, or any of them.

The conclusion of the learned vice-chancellor that it would be unjust and unnecessarily oppressive to enforce the restrictive covenant against Dr. Jonah, seems to be based upon the idea that, although the independent practice of his profession in Atlantic City by Dr. Jonah will result- in the loss of patients by Dr. Marvel, yet, even after such loss, the latter’s practice will still be so large as to be beyond his ability to cope with it without the assistance of others, and, consequently, that the restraint sought by him against Dr. Jonah wrould be of little value to him if granted. The premises do not justify such a conclusion. If Dr. Marvel has built up a practice so large that he is unable to taire care of it without the aid of qualified assistants, he is entitled to the emoluments thereof, and to be protected against the loss of those emoluments through illegal competition. It will hardly do to say that a man who has built up a business so extensive that he cannot handle it without the aid of a staff of assistants, suffers no loss or injury by its diminution in volume to such an extent that he no longer needs assistance to carry it- on, provided that what remains of it is sufficient to fully occupy his own time. Common experience is to the contrary.

But the right of Dr. Marvel to the aid of a court of equity to restrain Dr. Jonah from violating his covenant to refrain from practicing his profession in Atlantic City for three years after the termination of their partnership agreement, does not depend upon the extent of the injury to his business which would result from such violation. It is sufficient that such injury be material. Where there is an express covenant, and an uncontroverted injury arising from the breach of it, equity will grant an injunction to restrain such breach, whore the injury arising therefrom cannot be repaired, nor estimated in dollars and cents. The damages arising from the breach of a covenant such as that now under consideration would be continuing, accruing from day to day, and it -would be impossible to ascertain the money loss sustained by Dr. Marvel therefrom with anything approaching accuracy. A suit at law, therefore, would afford no adequate remedy; and when this is the case, a court of chancery should enforce the covenant by granting an injunction to prevent the breach of it. Butler v. Burleson, 16 Vt. 176; Timmerman v. Dever, 52 Mich. 34; Wilkinson v. Colley, 164. Pa. St. 35; Gravely v. Barnard, L. R. 18 Eq. 518. In each of the cited cases the complainant, a physician, appealed to a court of equity to restrain a fellow-practitioner from violating a covenant very similar in its legal aspects to that which Dr. Marvel claims the benefit of. In each of them the restraint prayed for was decreed, and this was done without any consideration of the extent of the injury which the plaintiff would suffer from a violation of the covenant.

The conclusion of the learned vice-chancellor that the granting of the restraint asked for by Dr. Marvel would be unjust to the defendant, seems to be based upon the idea that the latter would thereby be deprived of the privilege of pursuing his practice in the only field of his acquaintance. But this idea is not justified by the proofs in the ease, for from them it appears that the practice of the firm is not confined solely to ihe city of Atlantic City, but embraces Ventnor; Margate and Longport, boroughs which arc adjacent thereto. But even if the deprivation should be as complete as the learned vice-chancellor seems to think it would, we see no injustice in compelling Dr. Jonah to live up to the covenant solemnly entered into by him, and. which was one of the causes inducing Dr. Marvel to admit him into partnership, and to a share in the benefits of the practice which he had bnilt up. The fact that the performance of such a promise involves personal hardship^ or pecuniary loss, to the promisor, affords no justification for non-performance. If the law recognized such an excuse for the breach of a contract of this kind, very few cases would be found in the books where the performance of such negative covenants had been compelled by injunction; for speaking generally it is only where the performance of the covenant is disadvantageous to the covenantor that he refuses to perform it, and renders it necessary for the party for whose benefit it is made to apply to the courts for relief.

The above views lead to a reversal of so much of the present decree as is brought before us by this appeal. The record will be remitted to the court of chancery with a direction that an injunction issue against Dr. Jonah restraining him from the practice of his profession in the city of Atlantic City for a period of three years from and after the making of the decree in that court. The complainant below is entitled to costs.

Garrison, J.

(dissenting). •

1 agree that Dr. Maiwel was entitled to the measure of protection stated in the majority opinion, viz., that Dr. Jonah often having been brought into association with Dr. Marvel’s patients should not set up an independent practice in Atlantic City and take with him such patients, or any of them. I very fully agree that a covenant to this effect would be one that a court of conscience ought to enforce. The present covenant, however, goes away beyond such protection and penalizes Dr. Jonah by prohibiting him from practicing not only among such patients of Dr. Marvel’s but also among the hundreds of thousands of persons who annually visit Atlantic City without ever having heard of Dr. Marvel.

Such a covenant, while good in law, is, owing to its highly penal character, one to tire enforcement of which equity refuses to lead its aid, leaving the parties to the courts of law where the complainant can obtain redress that is exactly proportioned to the injury he has suffered.

This was the view of Vice-Chancellor Learning, in whose conclusions I concur and vote to affirm the decree advised by him, I am requested by Mr. Justice Bergen and by Judge White to saj' that they concur in the foregoing views.

For affirmance — Garrison, Bergen, White — 3.

For reversal — The Chief-Justice, Parker, Minturn, Kal-

ISOtí, BOGERT, VREBENBURGr-T, H.EPPENHKIMER — 1.


author: Garrison, J.

text:
    Samuel S. Staley, appellant, v. South Jersey Realty Company, respondent.
    [Submitted March 25th, 1914.
    Decided June 15th, 1914.]
    1. Contempts are of two sorts, civil and criminal; in a civil contempt the proceeding is a remedial step in a cause inter pwrtes and if the contemnor be imprisoned, it is only until he performs some required act beneficial to the other party; criminal contempts are offences against organized society and are punishable as such in a proceeding at law which, while it may. be administered by the court in which the contumacious conduct occurred, is no part of the private litigation therein.
    2. A proceeding instituted in the court of chancery for the purpose of having that court adjudge whether or not the defendant in a cause pending therein was guilty of a contemptuous violation of • an injunction issued by it is a proceeding at law in a criminal contempt in which the defendant is entitled to all of the substantial rights of a person accused of crime that are consistent with the summary nature of the proceeding and the processes of the tribunal in which it is administered, one of which rights is that the incriminating testimony shall be given by witnesses subject to cross-examination and impeachment under the ordinary rules of evidence.

      3. A punitive order of the court of chancery in such a proceeding made upon ex parte affidavits will be set aside.
    4. Ex parte affidavits to which the rules of evidence are not applied are not juridical evidence and hence are incapable of supporting a judicial decision in a proceeding at law. Qucere: Whether the defendant in a criminal contempt proceeding may expressly or by acquiescence waive his right to be convicted by the testimony of witnesses subject to his cross-examination.
    On appeal from an order of the court of chancery advised by Vice-Chancellor Howell.
    Two bills to quiet title were filed in the court of chancery against Samuel S. Staley and others, in one of which a final decree was entered on April 2d, 1909, and in the other of which' a final decree was entered on October 22d, 1909; in each case a permanent injunction was awarded restraining Staley from disposing of or claiming the right to malte title to certain lands referred to in the said decrees, respectively. On June 18th, 1910, upon proceedings for contempt for Ihe violation of this injunctive provision of the earlier decree, Staley was adjudged guilty and ordered to pay a fine of $50 for the use of the state. On September 22d, 1910, an order in the other suit was made upon Staley requiring him to show cause why he should not be adjudged guilty of contempt of court for the violation of the permanent injunction awarded in that case. This order was returnable at the chancery chambers at Jersey City on October 3d, 1910, and was served on Staley personally. At the time and place designated in this order to show cause the vice-chancellor took up the consideration of the proceeding for contempt' and has made, for the purposes of this appeal, the following written statement of what then occurred:
    “An order to show cause was signed and served upon the respondent, Staley, who was then sojourning in Philadelphia. He did not appear at the hearing on the return day, but sent his counsel, who moved that a day might be fixed for taking the deposition of the respondent, who counsel represented desired to have a hearing in open court. He presented no answering affidavits. His counsel was inquired of as to whether Staley was.in court in response to the order to show cause, to which counsel replied that he was not. His counsel stated that he was in Philadelphia, where he lived. I then examined the petition, and finding that the respondent, Staley, had been adjudged guilty of contempt on a former action, and had been fined $50, inquired of his counsel if the fine and costs had been paid, to which his counsel replied that Staley had not paid the fine because he could not raise the money, but that he thought that Staley should be entitled to a hearing without having complied with the previous order of the court. Counsel for the complainant then moved that the order be made absolute, and this was done.”
    Thereupon the following order was made and filed:
    “It appearing to the chancellor that upon petition filed by the complainant in the above-entitled cause an order was entered, dated twenty-second day of September, nineteen hundred and ten, requiring the defendant, Samuel S. Staley, to show cause before the chancellor, at the chancery chambers, in the city of Jersey City, on Monday, the third day oí October, nineteen hundred and ten, at ten o'clock in the forenoon, why he should not be adjudged guilty of contempt of court, in violation of the terms of the permanent, injunction granted against him in the above-entitled cause, and be punished accordingly.
    “And it further appearing by affidavits that copies of said petition and order were duly served personally upon the said Staley, as required by the terms of said order.
    “’And the court, after considering the said petition and the • affidavits attached thereto, being of opinion that the said defendant, Staley, did commit the contempt with which he is charged and violated the terms of the injunction aforesaid, and that his conduct was calculated to impair, defeat and prejudice the rights of the complainant in this cause and was an affront to the dignity and power of this court.
    “It is thereupon on this fourth day of October, nineteen hundred and ten, on motion of Lewis Starr, solicitor of the complainant, ordered that the said Samuel S. Staley be and he is hereby adjudged to be guilty of contempt by reason of the misconduct alleged in said petition, and that he pay to the clerk of this court a fine of fifty dollars for the use of the state, and that he pay to the complainant the costs of these proceedings to be taxed.
    “And it is also ordered that as further punishment for his said conduct, that the said Samuel S. Staley bo committed to the common jail of the county of Camden, at Camden, in this state, and there confined for a period of three months from the date of his commitment, to run concurrently with a similar term of imprisonment imposed in another cause pending in this court be-1 tween the parties hereto hy order, dated this day, and for a further term until he shall have paid said fine and costs as aforesaid, unless the chancellor shall see fit sooner to discharge him.
    “And it is further ordered that a warrant issue accordingly, directed to any sheriff, constable or other peace officer of the State of New Jersey.”
    Prom this order Samuel S. Staley has appealed, specifying as one ground of appeal that he was entitled to have proof made of his alleged contempt by competent testimony with opportunity to cross-examine the witnesses that testified against him.

      Mr. G. Dore Cogswell, Mr. Leo Belmont and Mr. George II. Bates (of Philadelphia) on the brief, for the appellant.

      Mr. Lewis Starr, for the respondents.
   The opinion of the court was delivered by

Garrison, J.

Contempts are of two sorts, civil and criminal. The distinction has been frequently pointed out. Dodd v. Una, 40 N. J. Eq. 672; Thompson v. Pennsylvania Railroad, Co., 48 N. J. Eq. 105; Frank v. Herold, 64 N. J. Eq. 371; Gompers v. Buck’s Stove and Range Co., 221 U. S. 418; Gompers v. United States, May 11th, 1914.

In a civil contempt the proceeding is remedial; it is a step in the cause the object of which is to coerce one party for the benefit of the other part)' to do or to refrain from doing some act specified in the order of the court. Hence, if imprisonment be ordered it is remedial in purpose and coercive in character, and to that end must relate to something to be done by the defendant by the doing of which he may discharge himself. As quaintly expressed, the imprisoned man “carries the keys to his prison in his own pocket.” Re Nevitt, 54 C. C. 4. 622; 117 Fed. Rep. 451.

Criminal contempts, on the other hand, as the term implies, are offences against organized society which, although they may arise in the course of ¡rrivate litigation, are not a part thereof, but. like other criminal offences, raise an issue between the public and the accused. Hence, if imprisonment be adjudged it is, by analogy with the criminal law, punitive in purpose and definite in character. So marked is the difference between the two sorts of imprisonment that it serves as a practical test by which the two sorts of contempt may be distinguished.

As was said by Mr. Justice Lamar, in Gompers v. Buck's Stove and Range Go.: “The distinction between refusing to do an act commanded (remedied by imprisonment until the partjr performs the required, act), and the- doing of an act forbidden (punished by imprisonment for a definite term), is sound in principle, and generally, if not universally, affords a test bjr which to determine the character of the punishment.”

Judged by this test the order brought up by this appeal was for a criminal contempt; it was for the doing of an act forbidden and the punishment was imprisonment for a definite term. In principle the present case is indistinguishable from Frank v. Herold, in which, as in this case, the defendants were adjudged guilty of a contempt of the court of chancery for willfully violating a restraining order of that court and were sentenced to imprisonment for a definite term. The appeal was dismissed by this court upon the express ground that the proceeding was a criminal contempt in which, as the law then stood, an appeal did not lie. The legislature has since given a right of appeal under which the present case is now before us. This statute was passed in 1909 (R. L. 1909 p. 870), and because of the previous absence of an appeal in criminal contempts the questions that now arise are for the most part res novo, in this court.

The Herold Case establishes beyond question the ■ criminal character of the present contempt; and the other cases cited are also precedents for the authority of the court in which the contumacious conduct is alleged to have occurred to institute and carry through such criminal proceeding to its termination. In Dodd v. Una, Mr. Justice Depue described this proceeding as “of a criminal nature, instituted by the court of its own motion — hoard by it in a summary way — and punishable by imprisonment until the contempt be purged or by a fine payable to' the state.” It is not essential that the proceeding should be instituted by the court of its own motion; the matter may be, and in actual practice generally is, brought to the attention of the court by complainant’s counsel who, in such case, acts as amicus curia. However set on foot, the person at whom the criminal proceeding is directed is entitled throughout to such of the substantial rights of a person accused of crime as are consistent with the summary nature of the proceeding and the processes of the forum in which it is administered. One of these rights of the accused is that the facts by which his guilt is determined and his punishment meted out shall be established by the oaths of witnesses subject to cross-examination and impeachment under the ordinary rules of evidence unless the accused has either expressly or by implication waived the right thus intended for his protection, as to which latter point nothing is now decided. Magennis v. Parkhurst, 4 N. J. Eq. 433; Buckley v. Perrine, 55 N. J. Eq. 518; Holt's Case, 55 N. J. Law 385.

Extended citation is unnecessary, in view of the fact that the right of which we are speaking is upon fundamental principles applicable to all trials for criminal offences, and in criminal offences the sort of evidence by which the guilt of the accused may be established depends not upon the character of the tribunal by which he is tried, but upon the nature of the offence for which he is tried, so that evidence that would be inadmissible upon an indictment for contempt, tried by the courts of ordinary criminal jurisdiction, is equally so when tried in a summary way by the court of chancery. “These contempts are infractions of the law visited with punishment as such. If such acts are not criminal we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech. So truly are they crimes .that it seems to be proved that in the early law they were punished only by the usual criminal procedure (3 Trans. R. His. Soc (N. S.) 147, 1885), and that in England at least it seems that they may be, and preferably are, tried in that way.” The quotation is from the opinion delivered by Mr. Justice Holmes in Gompers et al. v. United States, filed May 11th, 1914, and not yet reported. The relegation of criminal contempts to the courts of ordinary criminal jurisdiction insures a tribunal in which the functions of prosecutor, judge and jury are exercised by different officers against none of whom was the contumacious conduct directed; if, however, the affront is to be punished by the tribunal at which it was aimed, and which by its constitution is both judge and jury and accuser as well, it is all the more important that there should be a scrupulous observance of the substantial rights of the defendant, one of which unquestionably is that of being represented by counsel when the incriminating testimony is given with right to cross-examine the witnesses, who are; in effect, state’s witnesses, and to lay, if possible, the foundation for their contradiction or impeachment.

1 In the case now before us no witnesses were examined, although the accused was represented by counsel who was present in court upon the' return of the rule to show cause. Counsel, it is true, moved for a continuance, which was denied, but such motion had reference solely to the taking of the deposition of the defendant and in no way suggested that the case against the defendant should be made out otherwise than by lawful testimony. This motion for a continuance the court denied, apparently because of an unpurged contempt in another cause. The denial of this motion was a matter of discretion that we do not review. When, however, this motion was disposed of there remained nothing for the court to do but to hear the rule to show cause which on its face disclosed that its object was to have the court adjudge whether or not the defendant was guilty of a contemptuous violation of its permanent injunction — i. e., a proceeding at law for a criminal contempt and not a motion in the equity cause or a step in that private litigation. This is the precise point on which the case of Gompers v. Buck’s Stove and Rrange Co. turned, in which the ground of reversal was that while the judgment was appropriate only to a proceeding at law for a criminal contempt, the proceeding throughout was framed and treated as part of the civil cause in equity. “There are some differences,” said the court in that case, “between the two classes of proceedings which involve substantial rights and constitutional privileges. Without deciding what may be the rule in civil contempts, it is certain that in proceedings for criminal contempt the defendant is presumed to be innocent, he must be proved to be guilty beyond a reasonable doubt and cannot be compelled to testify against himself,” citing a large number of cases.

It is hardly necessary to add that among these substantial rights is that the defendant’s guilt must be proved by judicial evidence, i. e., by testimony to which the ordinary rules of evidence are applied, which is not the case with ex pcurte affidavits such as those upon which the defendant in the case before us was convicted. These ex parte affidavits, if served upon the defendant, as to which the case is silent, were not legal evidence in a proceeding at law such as this. Baldwin v. Flagg, 43 N. J. Law 496.

The chancery rules referred to by Mr. Justice Depue do not and could not make such affidavits evidence in this criminal proceeding — they were lacking in the essential elements of legal evidence. As was said by Chief-Justice Beasley in West Jersey Traction Co. v. Camden, 58 N. J. Law 362, speaking of the ex parte affidavit on which the writ of certiorari is allowed: “Such oath has no semblance of juridical testimony. The rules of evidence are not applied to it, and it is used against a party who has no Imowledge of its existence. Such a basis as this is incapable of supporting anything in the nature of a judicial decision.”

The defendant is not to be held responsible for thé manner in which the ease against him was conducted; his counsel waived nothing and acquiesced in nothing excepting as to the adverse ruling of the court on his motion for a continuance. If the incriminating witnesses had been sworn and examined, as they should have been, he was there to cross-examine them or to lay the ground for their contradiction or impeachment. The ex parte affidavits, if known to .the defendant, were not recognized by him as legal evidence; answering affidavits were not’ filed, hence the defendant did not even apparently acquiesce in that method of trial. We can reach, therefore, but one conclusion, and that is that the order sentencing the defendant to a definite term of imprisonment for a criminal contempt was made without any evidence of his guilt that was legally admissible in such a proceeding.

That an order so made will be set aside upon appeal goes without saying. It may well be that such order is also open to the same objection that, led the supreme court of the United States to set aside a similar order in Gompers v. Buck’s Stove and Range Co., the syllabus of which case is:

“A punitive sentence appropriate only to a proceeding at law for criminal contempt where the contempt consisted in doing that which had been prohibited by an injunction could not properly be imposed in contempt proceedings which were instituted, entitled, tried, and up to the moment of sentence, treated as a part of the original cause in equity.”

If there is any essential difference between the case cited and the one before us, it is not apparent upon a somewhat careful examination; or perhaps it would be more frank to say that while it is apparent that there is no difference, we prefer to place our decision upon the meritorious ground already stated rather than upon the narrow one of an error in procedure.

We are asked by the appellant’s counsel to say that the vicer chancellor, in any event, had no power to make the order appealed from, and section 102 of the Chancery act, and the case of Seastream v. New Jersey Exhibition Co., 69 N. J. Eq. 15, are cited to us.

The conclusion we have reached renders it unnecessary to consider this question, but we point out that section 102 applies to, the vice-chancellors sitting as judicial officers and not to orders made by the chancellor with or without their advice. It may also be well to point out that what was said by Chancellor Magie in the Seastream Case was not approved by this court when that case came before it upon appeal (Seastream v. New Jersey Exhibition Co., 72 N. J. Eq. 377, 380), and also that the absence of an appeal, which was an influential factor in the case in chancery, has since been altered by the enactment of the statute under which the present appeal is now before us. It is further argued that if a vice-chancellor may-try a criminal contempt, he can do so only when the matter is expressly referred to him, and that such a reference is not covered by the general chancery rules. The question is not free from difficulty, and is not now passed upon, for the reason that such a decision is entirely unnecessary to the rights of any parly now before us.

For the reason already stated the order brought up by this appeal is reversed.

For affirmance — Hone.

For reversal — Tee Chief-J ustice. Garrison, Swayze, Teenchard, Parker, Bergen, Minturn, Kalisch, Bogert, Vredenburgit, White, Heppeneieimer — 12.


author: Swayze, J.

text:
    Munn & Company, respondent, v. The Americana Company et al., appellants.
    [Argued March 16th, 1914.
    Decided June 15th, 1914.]
    1. The basis of suits to enjoin the use of the complainant’s name is the damage or possibility of damage to the complainant, not the damage or probability of damage to the public; fraudulent conduct on the part of the defendant is a necessary element, but fraudulent conduct without damage to the complainant does not suffice.
    2. Since it is the complainant who is to be protected in suits to enjoin the use of his name, he must’ come into the court with clean hands.

      3. Where the complainant and defendant agreed that an encyclopedia should be represented to the public as the work of the complainant in order to avail themselves of its reputation to attract subscribers for the book, the complainant cannot be heard to complain of conduct in which it'joined and by which it profited.
    4. Where complainant and defendant agreed that an encyclopedia should be represented to the public as the work of the complainant in order to avail themselves of its reputation to attract subscribers for the book, and subsequently the complainant terminated the agreement and sought to enjoin the use of its name, the court denied relief because the complainant did not come into court with clean hands although the point was not raised by the defendants in their answer.
    5. Where a complainant’s conduct has been such that he does not come into court with clean hands, the disqualification applies only to the particular matter or transaction with which the wrongful conduct has to do, and he may have relief in other respects.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, -whose opinion is reported in 82 N. J. Eq. 68, US. 443.

      Mr. J. Franklin Fort and Mr. Franklin W. Fort, for the complainant (Arthur H. Masten and Sinclair Hamilton, of New York on the brief).

      Mr. Robert H. McCarter and Mr. Conover English, for the defendants. ,
   The opinion of the court was delivered by

Swayze, J.

The basis of suits of this character is the damage or possibility of damage to the complainant, not the damage or probability of damage to the public. The question sometimes discussed is whether relief may be rested on a personal basis alone or whether damage to property rights is necessary — a. question left undecided in this court in Vanderbilt v. Mitchell, 72 N. J. Eq. 910, 926. In án early English case the court refused an'injunction, to .restrain the sale of a quack medicine under the name of the complainant, an eminent physician. Clark v. Freeman, 11 Beav. 112. And although the ease is not of great authority, the criticism upon it was not due to the fact that the court refused at the suit of an individual to restrain a fraud upon the public but to the fact that it overlooked the property right of a man in his own name. Maxwell v. Hogg, L. R. 2 Ch. 307. The court of chancery has held that there is such a right. Edison v. Edison Polyform & Mfg. Co., 73 N. J. Eq. 136. Although damage is the basis of the suit the mere fact of damage or possibility of damage is not enough, since damage may result from lawful acts, such as legitimate competition. Fraudulent conduct on the "part of the defendant is a necessary element. International Silver Co. v. Rogers, 71 N. J. Eq. 560, 563. But fraudulent conduct without damage to the complainant does not suffice. The case upon which the complainant relied was expressly put upon the ground of the liability of the complainant to loss. Walter v. Ashton (1902), 2 Ch. 282.

The very discussion suffices to show that although fraudulent conduct which may deceive the public is a necessary element, it is the private loss of the complainant that is to be prevented, not the public injury arising to others from the fraudulent use of the complainant’s name. This is in consonance with general principles. It is unnecessary to dwell upon the point. Its importance in the present ease is due to its bearing upon the standing of the complainant to maintain its bill. If it were the public that is to be protected, the conduct of the complainant ought not to prevent relief. Since it is the complainant that is to be protected, the well established maxim of equity is applicable ; the complainant must come into court with clean hands.

The facts found by the learned vice-chancellor establish an agreement on the part of tire complainant and The Americana Company to make money out of the public by representing the encyclopedia as the work of the Scientific American and thereby availing themselves of the reputation of that journal to attract subscribers for the book. The adoption of the name Scientific American Compiling Department cannot be otherwise explained. The word “Department” in that expression can hardly convey to the ordinary mind any other meaning than Department of the Scientific American; and the language of the letter addressed by Munn & Company to the American people under date of May, 1906, is carefully chosen to convey the same impression without saying so in express words. The encyclopedia is therein said to be issued under the direct editorship and personal supervision of the editor of the Scientific American, although his actual connection with the work was slight; he is said to be assisted by a board of eminent department editors; the natural impression conveyed is that they were editors of departments of the Scientific American, since nothing else is mentioned that could have departments; in fact so far as appears no editor of the Scientific American except Mr. Beach was connected with the encyclopedia. The book is said to be a great work “published by the Scientific American Compiling Department” with the full co-operation of Munn & Company, who add that they are certain that it will be found standard in its information and fully equal to the reputation of the Scientific American for accuracy and reliability. The gravamen of the complainant’s bill is that Munn & Company will be injured in their good business reputation by the fraud of the defendants in palming oil the book upon the public as a work connected with the Scientific American. Yet that is the very scheme in which the parties joined for years prior to 1911. We think the complainant cannot now be heard to complain of conduct in which it formerly joined and by which it profited. It makes no difference whether the encyclopedia is valuable or not, nor whether purchasers thereof have been damaged; it is enough that they have been or may have been beguiled of their money because the complainanf's representations and the representations of the defendant to which the complainant assented, persuaded them that they were buying a work which was made better by the co-operation of the Scientific American. We think that the complainant when it tires of its bargain and seeks to enjoin the defendant from further profiting by the supposed connection, does not come into court with clean hands. Fraudulent conduct which the law would enjoin but for the agreement of the parties to exploit the public is as inimical to the public policy as gambling in cotton which is condemned by statute, and the rule applied in Minzesheimer v. Doolittle, 60 N. J. Eq. 394, is applicable to the present case. The principle applied in the law courts in Hope v. Linden Park Assn., 58 N. J. Law 627, and Wyckoff v. Weaver, 66 N. J. Law 648, is in effect the same.

The failure of the defendants to question in their answer the standing of the complainants is not material. This very point was made and overruled by this court in Minzesheimer v. Doolittle, 60 N. J. Eq. 394, 397. As we there said, the court will not for any delinquency of the defendant, lend its assistance to a violation of law; and so it will not assist one who has joined in an effort to deceive the public to prevent his associate from continuing to do the very thing to which he has previously assented.

We think, therefore, that the decree must be reversed; but it does not follow that the complainant is not entitled to some of the relief granted. The disqualification applies only to the particular matter or transaction with which the wrongful conduct had to do.- Woodward v. Woodward, 41 N. J. Eq. 224. In this ease the complainant’s wrongful conduct had to do with the exploiting of the encyclopedia under the name of Scientific American Compiling Department. The complainant is not shown to have assented to the use of the name Scientific American for any other purpose. So far as the decree enjoins the Scientific American Compiling Department from using its corporate name, it must be reversed; so far as it enjoins the use of the name Scientific American in other ways it must be affirmed. The defendants are entitled to costs in this court.

For affirmance — White—1.

For reversal — The Chiee-Justice, Swayze, Trenchard, Bergeh, Minturn", Kalisoh, Bogert, Yreden-burgh, Heppen-HETMER-9.


author: SwAyze, J.

text:
    Dewey Land Company et al., appellants, v. Henry E. Stevens, Jr., et al., respondents.
    [Argued July 2d, 1913.
    Decided June 15th, 1914.]
    1. Where the court is evenly divided there is no decision of the legal question discussed; the result depends upon the fact that the question put is whether the judgment shall be reversed.
    2. A riparian grant by the state can have no more effect upon the title to land not owned by the átate than a deed by any person other than the real owner.
    3. Land bounded by the ocean was conveyed in 1856; subsequently the ocean encroached on the beach and the land in dispute was under water; while that condition existed, a grant was made by the riparian commissioners to the defendant’s predecessor in title; subsequently the ocean receded and the former owners made grants, under which alone the plaintiffs claimed land embraced in the state’s riparian grant; no claim was made by complainants as riparian owner to the land in question by accretion. — Held, that complainants could not sustain their claim to the land under the grants from the former owners as against the state’s riparian grant.
    On appeal from a decree of the court of chancery made by the chancellor.

      Mr. George A. Bourgeois (Messrs. Bourgeois & Coulomb on the brief), for the appellants.

      Mr. Harvey F. Carr (Messrs. Wilson &. Carr'on the brief), for the respondents.
   The opinion of the court was delivered by

SwAyze, J.

This is a bill to quiet title to land formerly under the waters of the Atlantic ocean. The bill originally filed claimed title by accretion. This claim was abandoned and by an amended bill, the complainants set up title by deed from former owners. The theory of the bill is that the land was fast land in 1853; that the ocean afterward covered it, and then receded leaving it fast land as before, so that the former title revived. The defendants claim under a riparian grant from the state on June 38th, 1900. The chancellor conceived himself bound by the view expressed by Mr. Justice Garrison in Attorney-General v. Sooy Oyster Co., 78 N. J. Law 394, and dismissed the hill. This was due to a misapprehension of that case. As the court was there evenly divided, there was no decision on the legal question discussed; all that was decided was that the judgment below must be affirmed, as there was not a majority for reversal. In such cases the result depends upon the form in which the question is put and under the practice of the house of lords, which we follow, the question is put for reversing and not for affirming’. Macq. Pr. %7. But the present case is not within the reason of the memorandum of Mr. Justice Garrison. The question there was whether the land in dispute was of the character that the riparian commission was authorized by the legislature to convey; there was no question that it belonged to the state. Those who voted to affirm the judgment thought that the question whether the riparian commission had power to convey was one for them to decide for themselves in the first instance, and their decision as evidenced by their grant could not be attacked collaterally in a court of law. It was not suggested that a riparian grant could have any effect upon the title to land not owned by the'state. • It could have no more effect than a deed by any person other than the real owner. Obviously, under our constitutional provisions, the state could not' take a man’s title by any grant it might make, nor could it deprive him of the right to have that title passed upon by a jury. In the present case, if the land did not' belong to the state, its grant was ineffective; if the land belonged to the state at the time of the grant by reason of then being under tide water, hut has reverted to its former owners by matter arising after the grant, the complainants are not in the position of questioning the grant, but of conceding its validity and claiming that the title thereby granted has since ceased to be effective. We think the complainants maj'- maintain their bill if they have made ont their title. This title we must now examine.

The land formerly belonged to Robert B. Leeds. He conveyed in 1856 to John MeClees by a description bounding on the edge of Absecon inlet. MeClees conveyed in 1897 to the Atlantic City Beach Front Improvement Company by a description bounding on the high-water mark of Absecon inlet and the Atlantic ocean. At that time the ocean had encroached many feet upon the beach and the land now in question was under water. The complainants claim title by various mesne conveyances under the deed to the Atlantic City Beach Front Improvement Company to land therein described. The original bill in this case was filed in 1909. In 1912 the Dewey Land Company took a quitclaim deed from the heirs-at-law of Robert B. Leeds for a tract running to high-water mark as it existed in 1852. It had, on November 1st, 1911, taken a quitclaim deed from John Mc-Clees, running to high-water mark as it existed April 15th, 1853. It is too clear for argument that the complainants acquired no title to the locus in quo by virtue of the deeds from the Atlantic City Beach Front Improvement Company; the title so acquired stopped by the very terms of the description with the then existing high-water mark, and the state’s title began at that point. Inasmuch as all claim'by accretion is -waived, the complainants’ amended bill must fail unless they acquired title from the Leeds’ heirs or MeClees. Their position is that the title to the land is not lost if when the ocean recedes the land can again be known and reclaimed by admeasurement; to sustain their position they refer to what wre Said in Ocean City Association v. Shriver, 64 N. J. Law 550. That principle, however, is not applicable to the present case. If the locus in quo ivas fast land in 1856, at the date of the conveyance from Leeds to MeClees, it passed to him and the Leeds’ heirs had nothing to convey in 1912; if it was under water in 1856, it did not pass to MeClees, since his title by the very terms of the description stopped with the edge of the inlet. But it did not remain in Leeds; to so hold would be to hold that MeClees might thereafter by the recession of the water be shut out by his own grantor from the boundary of the inlet which his deed gave him. McClees had the ordinary right of a riparian owner to land by accretion. He had this right as compensation for his possibility of loss by erosion; but his right to accretion was inconsistent -with a right remaining in Leeds to land that might reappear ns the ocean receded. 'In the same way when McClees conveyed to the Atlantic City Beach Front Improvement Company in 1897, he bounded the land by the high-water mark of the ocean; there the title of his grantee ceased and the title of the state began; but he did not retain any right to land then under water, which might avail him thereafter when the ocean receded, to shut off his own grantee from the access to the shore which his deed gave. His grantee had the ordinary right of a riparian owner to the accretion. If the land was formerly fast land, and the title was lost by erosion, it became the property of the state, not merely as long as it remained under water, but, if the state made a riparian grant, absolutely. Stevens v. Paterson and Newark Railroad Co., 34 N. J. Lam 532. Whatever right the former owners might have as against private persons upon the ocean receding, was of no avail against the state’s riparian grant; the title lost by erosion was then lost forever, unless it was regained by accretion, and the right of accretion was the compensation of the former owner for his loss; each grantee had the same right. The case differs from Ocean City Association v. Shriver. That case turned upon the question whether the Ocean City Association was the riparian owner; their deed to Howell did not, like the deeds from Leeds to Mc-Clees and from McClees to the Atlantic City Beach Front Improvement Company, bound the' property conveyed by the ocean.

We think the complainants fail to establish the title set up on the amended bill; the decree of dismissal must therefore be affirmed, with costs.

For affirmance■ — -The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Yredenburgu-i, White — 10.

For reversal — -Hone.


author: Tebnohabd, J.

text:
    Cornelia E. Clement et al. v. Anna M. E. Creveling et al.
    [Argued March 6th, 1914.
    Decided June 15th, 1914.]
    Testator’s will gave to his wife for life the income from six hundred shares of the capital stock of a railroad company. It directed that out of such income she should pay to her niece, Emma Chambers, during the life of the niece, $600 per annum. It further provided that “in case of the decease of my wife before that of Emma Chambers, I direct and require my executors to retain sixty shares of the said stock and to pay the interest thereon to the said Emma Chambers during her natural life.” The sixth paragraph provided that “after the decease of my said wife and niece, I give my estate to my lawful heirs, to be divided equally among them, share and share alike, the lawful child or children of any of them who may have died to take the share of their deceased parent.” The testator was survived by his three brothers and his sister, and these, now all deceased, were his heirs-at-law at the time of his death. — Held, (1) that upon the death of the wife, though the niece is still living, the testator’s residuary estate, excepting the sixty shares of stock held-for the benefit .of the niece, is distributable in accordance with the sixth paragraph of the will; (2) that by the sixth paragraph of the will the testator’s residuary estate vested in his brothers and his sister at the time of the testator’s death, subject to the life interest therein of his wife, and the interest of her niece, and upon the death of the wife such part of such estate as is not required to be retained for the benefit of the niece is distributable in equal parts to the respective personal representatives of the testator’s brothers and sister.
    On appeal from a decree of tlie court of chancery made by the chancellor, whose opinion is reported in SB N. J. Eq. B7.

      Mr. Aaron V. Dawes, for the complainants and appellants.

      Messrs. Collins <& Corbin, for Anna M. E. Creveling, defendant and appellant.

      Mr. Alfred Heed, for Josephine Ellison, Harry D. Ellison, Frank B. Ellison, Percy W. Ellison, George IT. Ellison, Mary Camp and Fred Camp, defendants and respondents.

      Mr. Peter Baches, for Mary Ann Whittaker, personally and as executor, &e., and Gardner Cain, executor, &c., defendants and respondents.

      Mr. Bayard Stockton, for the Mercer Hospital, defendant and respondent.
   The opinion of the court was delivered by

Tebnohabd, J.

Albert J. Whittaker died March 28th, 1884, leaving a last will and testament by which he gave to his wife for her natural life, without power to sell or transfer the same, six hundred shares of the capital stock of the United New Jersey Railroad and Canal Company, with power to collect and receive the dividends therefrom for her own use and benefit. He directed that the stock should not be sold or transferred by his executors, or by anybody else, during the life of his wife. He further provided that out of the dividends collected on this stock his wife should pay to her niece, Emma Chambers, for and during the natural life of the niece, $600 per annum. He then provided as follows:

“In case of the decease of my wife before that of Emma Chambers, I direct and require my executors to retain sixty shares of the said stock and to pay the interest thereon to said Emma Chambers during her natural life.”

After giving certain specific legacies to persons named in the will, and authorizing his executors to sell and convey his real estate, he provided that

“Sixth. After the decease of my said wife and niece, I give my estate to my lawful heirs, to be divided equally among them, share and share alike, the lawful child or children of any of them who may have died to take the share of their deceased parent.”

The present bill is filed for the purpose of obtaining a decree directing the immediate distribution of testator’s residuary estate, with the exception of sixty shares of this railroad stock, and to have it declared who is entitled to share in this distribution.

It appears that the testator was survived by his three brothers and his sister. These were his heirs-at-law at the time of his death. They are all now dead, the last dying in 1912. The testator's widow died in 1908. The niece, Emma Chambers, is still living.

The complainants are the children of George E. Whittaker, one of the testator’s brothers. The defendant Anna M. E. Creveling is the daughter of Ann W. Ellison, the testator’s sister. The other defendants are children, of a deceased daughter of George E. Whittaker; children of deceased sons of Ann W. Ellison; the personal representatives and legatees of the testator’s other brothers who died without issue; the testator’s niece, Emma Chambers; and the trustee under the will.

All parties consent in the pleadings that immediate distribution be made of the entire residuary estate, excepting only the sixty shares of the railroad stock, necessary to be reserved for the benefit of Emma Chambers.

The defendants, whilst consenting to such immediate distribution, make varying claims as to the manner of distribution.

The chancellor properly considered himself bound by an earlier adjudication of Chancellor Eunyon in which the construction of the same will was involved (Whittaker v. Whittaker, 40 N. J. Eq. 33), and following Chancellor Eunyon’s adjudication held that the estate was not distributable until after the death both of the testator’s wife and of Emma Chambers; and that, this being so^ it would be premature to determine who would be entitled to share in the distribution. 88 Atl. Rep. 189.

The complainants and the defendant Anna M. E. Creveling appeal.

We are of the opinion that the construction put upon this will by Chancellor Eunyon was erroneous.

We think it was not the testator’s intent that the distribution of the whole of his residuary estate should be postponed until the death, both of his wife and her niece. Standing alone that would be the natural effect of the sixth paragraph of the will. But to so construe it is to disregard the provisions made for Emma Chambers after the death of the testator’s wife. She died in 1908. Upon her death, the will, as will appear from the above citation, imposed a present duty upon the executors, namely, “to retain sixty shares of the said stock.” The retention of the sixty shares involves a disposition of the other five hundred and forty shares, and those shares are to be disposed of in accordance with the direction of the testator contained in the sixth paragraph of his will.

That brings us to the question of the manner of distribution.

The primary question is, as to when, under the sixth paragraph of the will, the testator’s residuary estate vested.

The solution of this question will determine to whom, and in what portion, the estate is to go, whether to the personal representatives of those who were the heirs of the testator at the time of his death, or to such persons as answer the description of the testator’s lawful heirs at this time.

In our opinion, by the sixth paragraph of the will the testator’s estate vested in his brothers and sister at the time of the testator’s death, subject to the life interest therein of his wife, and the interest of her niece; and upon the death of the wife such part of such estate as is not required to be retained for the benefit of the niece is distributable in equal parts to the respective personal representatives of the testator’s brothers and sister.

This case is much like that of Howell, Exec., v. Greene, Admr., 31 N. J. Law 570, where the will which was construed provided as follows:

“I give and bequeath unto my sister Martha the interest of $1,000 * * * for her own private use during her natural life, and after her decease I give and bequeath the said $1,000 to her two daughters, namely, Deborah and Sarah, equally to be divided.”

Sarah died before the testator; Deborah survived the testator,, but died in -the lifetime of her mother. The question for determination was whether the legacy to Deborah vested at the-death of the testator or whether it depended on the contingency of her surviving her mother. Chancellor Green, who wrote the-opinion in this court, says: “It is a well settled rule of construction' that a gift of a legacy ‘at/ or ‘when/ or ‘after5 a given event .occurs, vests only upon the happening of the event. Apart from the context, the gift to the nieces of the testator after the death of their mother would not vest until their mother’s death, and would depend upon the contingency of their surviving her. Where the time is annexed, not to the payment merely, but to the gift itself, the legacy does not vest until the period arrives. On the other hand, it is an equally well settled rule of construction, that where an absolute property in a fund is bequeathed in fractional interests in succession, at periods which must arrive, the interests of the first, and subsequent takers will vest together. * * * Where it is apparent from the terms of the will that the future gift is postponed to let in some other interest, the gift is vested.”

So also in Thomas, Exec., v. Anderson's Admr., 21 N. J. Eq. 22, it was held that “a gift of the interest of $13,000 to A during life, and at her death, of the principal to B, is a vested legacy, and if A survives B, goes, upon her death, to B’s representative.”

See also Beatty's Admr. v. Montgomery’s Exec., 21 N. J. Eq. 324, and Post v. Herberts' Execs., 27 N. J. Eq. 540.

We think not only on the authority of the cases cited and by the application of the rule set out therein, but by the very language of the sixth paragraph of the will, that the testator’s intent that his brothers and sister should take a vested interest is clear. In no other way can the words, “the lawful child or children of any of them who may have died to take the share of their deceased parent” be given force, for if the legacy was coiitingent and went to those who were the lawful heirs of the testator after the decease of his wife and niece they would all necessarily be in esse at the time when the legacy vested.

In Beatty’s Admr. v. Montgomery’s Exec., 21 N. J. Eq. 324, 327, Chancellor Zabrislde said: “If a legacy given to one at the death of a person named, is given to another in case such legatee should die, this is held to refer to death in the life of the person at whose death it is given. Such legacy is held to vest at the death of the testator, subject to be divested on the happening of the event, that is, dying in the life of the person named.”

But a legacy is divested only when other disposition is made of the subject of the legacy by the testator in the event of the death of the legatee during the life of “the person named.” If this is not so then the testator dies intestate. If there is no one m esse to take the gift over then the legacy is not divested by the dying of the legatee in the lifetime of “the person named.” Or, stated in another way, if, as in the will of this testator properly construed, there is no gift over on the death of the legatee during the lifetime of “the person named,” then there is no divesting of the legacy, and it goes to the personal representative of the legatee, either his executor or administrator, to be distributed under his will or to his next, of kin. Thomas’ Exec. v. Anderson’s Admr., 21 N. J. Eq. 22.

The result is that the testator’s residuary estate, with the exception of the sixty shares of the capital stock of the railroad company held for the benefit of the niece, should be immediately distributed in equal parts to the respective personal representatives of the testator’s brothers and sister, to be finally distributed under their respective wills or to their respective next of kin as the case may be.

The decree of the court below will be reversed, and a decree entered in accordance with the conclusions herein expressed.

For affirmance — Hone.

For reversal — The Ghiee-Justice, Swayze, Trenohard, Bergen, Minturn, Kallsoh, Ykedenburgh, White, Heppenheimer — 9.


author: Parker, J.

text:
    Maggie J. West et al., appellants-respondents, v. The Rector, &c., of St. James' Episcopal Church of Long Branch, respondent-appellant.
    [Argued November 24th, 1913.
    Decided June 15th, 1914.]
    The allowance of costs and counsel fees out of a trust fund is as a rule limited to suits instituted by executors or trustees for the construction of a will, and suits by claimants to such fund in which the claims are successful.
    On cross-appeals from a decree of the court of chancery advised by Vice-Chancellor Lewis, whose opinion is reported in 82 N. J. Eg. 5.I/.6.

      Mr. William J. Leonard, for the West heirs, appellants-respondents.

      Mr. Gilbert Collins (Mr. Charles B. Bradley on the brief), for the St. James’ Church, respondent-appellant.
   The opinion of the court was delivered by

Parker, J.

So far as relates to the principal question in the cause, whether the case is one for the application of the principle of cy pres, we think the decree should be affirmed for the reasons given in the opinion of the vice-chancellor.

The point is now made that the fund in question never vested . in St. James’ Church, because Rufus T. West had a child who predeceased him and that this defeated the remainder to the church; but a glance at the language of the will makes it perfectly plain that the issue would take only in case of surviving the parent, and that the death of both life tenants of the income (the principal being committed to trustees), without issue them surviving, vested the right to the principal in the church.

On the appeal of the West heirs the decree should be affirmed.

The vice-chancellor allowed them costs and a counsel fee of $500 out of the fund; and this provision of the decree is the basis of a cross appeal by the church.

Wc do not think that the case was a proper one for the allowance to the West heirs of costs and counsel fees out of this fund. Tliejr were not necessary nor proper parties to the original suit, nor was it strictly a suit for the construction of a will. It was a bill by the trustee of an existing fund established for a charitable purpose, against the attorney-general, setting up that the specific intent of the donor could not be carried out, and asking that the general intent be ascertained and the fund disposed of pursuant to that intent and in conformity with the doctrine of cy pres.

In that suit the heirs were permitted without objection to intervene by petition and thereupon they made the various claims that have been disposed of adversely to their contentions. If ^ they- had brought an independent suit against the trustee, claiming title to the fund, they would'in all probability have been mulcted in costs. That they were permitted to come into this suit gives them no better standing as to the expense of their litigation. The ordinary rule is that costs will be allowed to executors or trustees under a will and to the other proper parties in a suit by such executors or trustees to clear up some obscurity or doubt in the will. But costs should not be awarded to an unsuccessful claimant who has brought suit to recover part of the estate.

“If a person claims as legatee, and his bill is dismissed, he will not be entitled to his costs out of the estate, notwithstanding there is an ambiguity in the will which renders it necessary to apply to the court for its construction.” Dan. Oh. Pr. oh. SO % 3 p: ISO2.

A similar rule should apply to heirs claiming intestacy, as in this case. So also in Larkin v. Wikoff, 79 N. J. Eq. 209, this court, refused costs and counsel fees out of the fund to complainants asking enforcement of the trust.

The award has been almost invariably confined to suits by the administrators of a fund for the construction of a will, and not applied to such suits brought by interested parties. And the reason is obvious, that to award costs and counsel fees to unsuccessful complainants in such cases would be to encourage unnecessary and frivolous litigation. In Halsted v. Meeker, 18 N. J. Eq. 136, the complainant was a cestui que trust and sought a construction of a will in her favor. The chancellor allowed her costs out of the estate on a decree adverse to her claim, but refused a counsel fee. In the case at bar the intervenors, for reasons already given, are not entitled to their costs. So much of the decree below as allows them costs out of the fund will be reversed, with directions to enter a decree that the parties in the cause below pay their own costs. The respondent-appellant, St. James’ Church, is entitled to costs in this court.

On appeal of the West heirs, appellants-respondents—

For affirmance — Tus Chief-Justice, Garrison, Swayze, Parker, Bergen, Minturn, Kalisch, Bogert, Vredenburgi-i, White, Heppenheimer — 11.

For reversal — Hone.

On appeal of the Rector, Warden and Vestrymen of St. James’ Church, respondent-appellant—

For affirmance — Hone.

For reversal — The Ci-iibf-Justice, Garrison, Swayze, Parker, Bergen, Minturn, Kalisch, Bogert, Vredenburgh, White, Heppenheimer — 11.


text:
    Michael A. Catoggio et al., appellees, v. Ernst Rehm et ux., appellants.
    [Argued March 4th, 1914.
    Decided June 15th, 1914.]
    A grantor conveyed a tract of land on the corner of Twelfth and Garden Streets with a covenant reserved that the grantees, their heirs or assigns should erect no other than a brick or stone dwelling-house not less than three stories high on the said land fronting on Twelfth Street. At the time of the deed the entire Garden Street frontage of twenty-five feet was occupied by a store building. There was an L-shaped portion in the rear, separable into a back yard for the store property and a building lot on Twelfth Street, and a dwelling was afterward built on the latter. — Held, that the remaining vacant land was to be considered for the purposes of the covenant as fronting on Twelfth Street, and that the erection of buildings thereon for business purposes, and fronting on Twelfth Street, was properly enjoined.
    On appeal from a decree of ¿¡he court of chancery advised by Vice-Chancellor Garrison.

      Mr. William S. Stuhr, for the. appellants.

      Mr. J. W. Rufus Besson, for the appellees.
   The opinion of the court was delivered by

Parker, J.

This is an appeal from a decree of the court of chancery enjoining the violation of a building covenant. The appellants maintain that the covenant has not been violated.

Prior to 1891 the Hoboken Land and Improvement Company owned a tract of land at Hoboken, mapped into blocks and lots, and of which the block wherein the premises in question are situate formed a part. In that year said company conveyed to one Frank, without referring to said map in any way, an L-shaped tract on the south easterly corner of Garden and Twelfth Streets, by the following description:

“Commencing at the corner formed bj' the intersection of the easterly line of Garden Street with the southerly line of Twelfth Street, and running thence southerly and along the easterly line of Garden Street 25 feet; thence easterly and parallel with Twelfth Street 75 feet; thence southerly and parallel with Garden Street 25 feet; thence easterly and parallel with Twelfth Street 25 feet; thence northerly and parallel with Garden Street 50 feet to Twelfth Street; and thence westerly along the southerly line of Twelfth Street 100 feet to the point or place of beginning.”

This deed contained the following covenant, viz.:

“It is covenanted and agreed by the parties of the second part that they, their heirs and assigns, shall erect no other than a brick or stone dwelling-house not less than three stories high on the said land fronting on Twelfth Street aforesaid.”

At the time the deed above mentioned was made there was standing on the lot fronting on Garden Street a four-story building occupying the full width of the lot on Garden Street, and running back along Twelfth Street about fift3r feet. By mesne conveyances the title to the land fronting on Garden • Street, twenty-five feet wide and eighty feet deep (five feet of said depth being a part of the lot of land fronting on Twelfth Street), became vested in the defendants, and the remainder of said land, fronting on Twelfth Street, being twenty feet wide and fifty feet deep, by mesne conveyances became vested in the complainant Oatoggio. Such was the situation at the time of filing the hill, the defendants’ building being used for mercantile purposes; and on the part owned by complainant, stood a three-story brick dwelling-house. Defendants had begun the erection on their < rear land of a one-story building intended for store purposes, fronting on Twelfth Street. This was stopped by the final decree of the court of chancery, directing an injunction restraining the defendants from keeping or maintaining on the land in question “the building erected by them thereon, and requiring the said defendants to remove the same forthwith.”

The question whether Oatoggio is entitled to enforce the covenant as a subsequent grantee of part of the original tract was stirred at the argument, but need not be considered, because the land cojnpany as the original covenantee was upon its own petition admitted as complainant.

It was admitted at the hearing below that the contemplated building was twenty feet wide on Twelfth Street, extending from the real’ of defendants’ original store property, and it is found by the vice-chancellor as a fact, and not disputed here, that this building is intended for use as a store with an entrance fronting on Twelfth Street.

The principal, if not the only argument made in attack on the decree before us, is that the language of the covenant shows that it was intended to apply to the land fronting on Twelfth Street and not to a building fronting thereon, but situate on land having its natural front on Garden Street. In support of this it is urged that the land company’s map shows two lots, a comer lot on Garden Street twenty-five by seventy-five feet, and a “butt” lot on Twelfth Street twenty-five by fifty feet; and that this layout was adopted by the city and the property has been so taxed and assessed.

We are not concerned with the city’s division of the property, nor even with the land company’s map, because, as already mentioned, that company conveyed all the property as one continuous tract and without reference to any map. In all probability this was intentional. Taken in connection with the language of the covenant, and with the fact that the L-shaped tract was sold with a building which covered the Avhole Garden Street frontage already on it and Avhich was used or usable for mercantile purposes, the reasonable meaning of the covenant is that no building should be erected on the vacant part of the tract except ■one of the character specified, i. c., a three-story brick or stone dAvelling.

When the right to relief on a covenant of this kind is doubtful, such relief will be denied. Underwood v. Herman & Co., 82 N. J. Eq. 353. But we think there is in the case at bar no doubt about the right to relief. The only doubt is whether the clause "fronting on Twelfth Street” is referable to the building or the land as an antecedent. In our view it makes no difference. If referable to the building, the case is plain; if to the land, we consider that as the entire frontage of Garden Street was occupied at the time of the original deed, the remaining vacant land had no frontage save on Twelfth Street, and that the intent to exclude from said land any buildings except of the permitted class was clear.

The decree will be affirmed.

For affirmance — The Chibe-Justice, Swayze, Trenckard, Parker, Minturn, Katjsch, Bogert, Vredenburgh, White, Heppenheemer — 10.

For reversal — Hone.


author: Vredenburgh, J.

text:
    Virginia Lee Welch, petitioner-respondent, v. Henry Bainbridge Baker, defendant-appellant.
    [Argued March 24th, 1914.
    Decided June 15th, 1914.]
    An order made in the court of chancery in divorce proceedings respecting the temporary custody of the petitioner’s child (its welfare being regarded as of prime consideration with the court) was held to have been a proper exercise of the discretion committed by the law to the chancellor.
    On appeal from an order of the court of chancery advised by Vice-Chancellor Howell.

      On petition of Virginia Lee "Welch against Henry Bainbridgv Baker. The order appealed from directed that respondent during the year 1915, and succeeding summers, have custody of her child for one-half of the summer vacation during which the regular sessions of the school are closed, the first half being-that division to which the petitioner is entitled, and the second half that to which the defendant shall be entitled.

      Messrs. Edward A. & William T. Day, for the appellant.

      Messrs. Lum, Tamblyn & Colyer, for the respondent.
   The opinion of the court was- delivered by

Vredenburgh, J.

This appeal brings up a very narrow subject for determination. It is from an order of the court of chancery made December 16th, 1913, directing that the respondent during the approaching year of 1915, and the succeeding summers, should be entitled to have her child, Henry Martyn Baker (a boy at school, between thirteen and fourteen years of age), given into her custody for one-half of the summer vacation, with a prohibition that she should not take him outside of the Hnited States.

Embraced within the grounds of appeal is an objection that the decree is erroneous in that it compelled the appellant to pay the costs of the proceedings, and a counsel fee of $500.

The parties to this controversy were duly married on November 19th, 1898, and from that date for several years lived and cohabited together resulting in the birth of their said child on July 11th, 1900. Afterwards they became estranged, and during portions of the years of 1905, 1906, 1907,-1908 and 1910, the mother visited Europe, leaving the father and boy living at home in this country.

In March, 1910, the mother brought suit for divorce against the husband in the court of chancery on the ground of his desertion of her for a period of two years or more, and obtained in that suit on October 27th, 1911, a final decree of divorce from the bond of matrimony. On October 31st, 1911, she married Thomas Carey Welch, her present husband, and is living with him in his home at Manilla, in the Philippine Islands.

A decree nisi in the divorce .suit had been obtained by her on April 17th, 1911. On September 20th, 1911, she filed a petition reciting that by the decree nisi it was ordered that further order as to the custody of said child be reserved, and concluded with a prayer that, as regards the custody of the child, provision be made in the decree in accordance with a written agreement between herself and the defendant set forth in her petition. That agreement was signed by both parties, was dated June 1st, 1910, under seal, and provides, as follows:

“It is hereby agreed that Henry B. Baker shall have the custody of his child, Henry Martyn Baker, and that, at the earliest opportunity, an order of the court shall be made to that effect, either in the pending divorce suit or otherwise as counsel for the parties may agree. This agreement is made because Virginia Bee Baker, the mother of the child, has no criticism to make of the way the father has acted toward the child and believes that it is better for his financial welfare to be in the custody of his father, who has no intention of casting any reflection upon the mother.”

It will be observed that this paper was made a part of the record of the divorce suit, and was a solemn admission by the parties that even so late as June, 1910, the conduct of each toward the child had been beyond criticism by the other, or in other words, that neither party had cause of complaint against the other respecting the treatment of the child.

No useful purpose can be served by specific references to the proofs before the learned vice-chancellor which led him to make the order in question. The propriety of such orders for the custody of infant children of divorced and separated parents is necessarily committed very largely to the discretion of the court of chancery.

After examination of the- case and the evidence, we think the vice-chancellor was entirely justified in making the order awarding the little boy to the keeping and care of the mother during the short period mentioned in it. Her residence in her far dis-taut home will require her, in order to reach the child, to devote many weeks of travel over sea and land, attended with personal risk and large expense, and in view of these circumstances the time given for her visit to the child does not seem to us to be excessive.

There is nothing in the case which stamps the mother as immoral, or unfit to have the custody, temporarily, of her son.

The vice-chancellor was evidently convinced by the mother’s testimony, taken in his presence, and by her bearing, and by the other circumstances in evidence before him, that her anxiety to see her boy was genuine; that the confidence of the court in her would not be violated, and that she was worthy oh the trust reposed in her by the terms of the order. A mother’s love for her child comes from a higher than human source, and cannot be measured nor weighed by precise judicial calculations. We coincide with the result the vice-chancellor has reached.

The costs and counsel fee allowed below we do not deem excessive, nor unreasonable, under the circumstances, and the order should be affirmed.

For affirmance — The Ci-iiee-Justice, Trenci-iard, Bergen, Minturn, Kalisctt, Bogert, Vredenburgh, White, Heppenheimer — 9.

For reversal — None.


author: Per Curiam.

text:
    Alfred M. Pierson, appellant, v. Emma F. Garrison et al., respondents.
    [Argued March 23d, 1914.
    Decided May 4th, 1914.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning.

      Mr. Louis E. Miller, for the appellant.

      Mr. William, E. Zeller, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons •stated in the opinion filed in the court below by Vice-Chancellor Learning.

For affirmance — The Chief-Justice, Trenchard, Bergen, Iíinturn, Kalisch, Bogeet, Vredenburgh, White, Heppenhefmer — 9,

For reversal — None,


text:
    Francis J. Swayze, executor, &c., respondent, v. Harriet M. Huntington et al., appellants and respondents.
    [Argued March 4th, 1914.
    Decided May 4th, 1914.]
    On appeal of defendant Charles R. Lane from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 82 N. J. Eq. 127.

      Mr. Edward M. Golie, for the complainant-respondent.

      Messrs. Pitney, Hardin & Shinner, for Edwin W. Merriam and Henry E. Merriam, individual^, and as executors of the last will and testament of John J. Merriam, deceased, Helen M. LaCoste and Amelia E. Merriam.

      Mr. Edward S. Atwater, -Jr,, for Harriet M. Huntington, Ralph H. Buffington, administrator of Maybelle E. Buffington, deceased, Olin L. Merriam, Nellie J. Merriam and Carlisle J. Lane; Mr. Charles E. Littlefield (of the New York bar), of counsel.
    ilfr. William A. Smith, for the guardian ad litem of infant defendants, Carlisle R. Lane, Albert Merriam Lane and Clara May Lane.

      Mr. Thomas M. Kays, for the defeudants-respondents Edward M. Dutcher, guardian of Elnora H. Dutcher.

      Mr. Thomas P. McKenna, for the defendant-appellant, Charles R. Lane; Mr. John W. Sheehan (of the Massachusetts bar), of counsel.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Yice-Chancellor Howell.

For affirmance — Ti-ie Chief-Justice, Trenci-iard, Bergen, Minturn, Rahsci-i, Bogert, Yreden.burgh, White, Heppenheimer — 9.

For reversal — None.


text:
    John Agnew Company v. Board of Education of the City of Paterson.
    [Argued March 11th, 1914.
    Decided June 15th, 1914.]
    On appeal of First National Bank of the Town of Union from a decree of the court of chancery advised by Vice-Chancellor Stevenson, whose opinion is reported ante p. 4&.

      Mr. John J. Fallon, for the appellant.

      Mr. Edward Ward McMahon (of the New York bar) and Mr. William J. Lewis {Mr. David F. Edwards, Mr. Frank II. Hall and Mr. Charles Thaddeus Terry, of New York, on the brief), for the respondents.
   Per Curiam.

The decree is affirmed, for the reasons stated by Yice-Chancellor Stevenson.

For affirmance — Swayze, Trestchard, Bergen, Minturn, ' Kalisch, Bogert, Yredenburgh, White, Heppenhmmee — 9.

For reversal — None.