text:
    West Jersey Trust Company, complainant-respondent, v. George W. Halliwell et al., defendants-appellants.
    [Argued March 20th, 1914.
    Decided March 20th, 1914.]
    On appeal from a decree of the court of chancery advised by Yice- Oh ancell or Learning.

      Mr. Wilford B. Wolcott, for the respondent.

      Mr. Timothy J. Middleton, for the appellants.
   Per Curiam.

The suit was for foreclosure of a mortgage to satisfy tire principal stun, and decree was resisted on the sole ground that the principal was not due. It was due by the terms of the bonds and mortgage, but the claim was that there had been a subsequent extension by the mortgagee in favor of defendant Halliwell.

Halliwell was not a party to the mortgage, but was a purchaser of the equity at a foreclosure sale under a second mortgage. Defendant’s case was, in substance, that pending the foreclosure of this second mortgage a Mr. Nixon was contemplating the making of a loan to take up the second mortgage, provided the complainant would extend the time of payment of the filrst mortgage; and that complainant wrote him a letter (which was not produced) agreeing to do so, and sent this letter by her son. Defendant then sought to extend the scope of this letter bjr! showing that the son bad authority for his mother to agree, and did agree, with Mr. Middleton as representing Halliwell, an intending purchaser at the sale, that the proposed extension would apply to such purchaser. Vice-Chancellor Learning held that defendants had not sustained the burden of showing either that such agreement had been made by the son or that he had authority to make it.

We are content to affirm the decree below on the first ground taken bjr the learned vice-chancellor, namely, that defendants had not sustained the burden of proving what it was incumbent on them to show, to wit, that Halliwell had taken title, relying on an agreement by the mortgagee with him or for his benefit, that if he should purchase at the sale, the first mortgage would stand for two years more.

This result makes it unnecessary to decide whether the agency of complainant’s son was made out. On this phase of the case there was a ruling excluding evidence tending to show agency which is challenged here, and on which we prefer to express no opinion. Eor the purposes of our decision the agency is assumed.

It is further argued that the acceptance by the complainant of interest from the purchaser Halliwell operated to postpone the payment of principal to the next interest day. Ho authority is cited for this proposition, and we know of none.

■ The decree is affirmed.

For affirmance — The Chief-Justioe, Trenohard, Parker, Bergen, Mintuen, Kaeisoh, Bogert, Vredenburgh, Cong-don, White, Heppenheimer — 11.

For reversal — Hone.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    John Agnew Company v. Board of Education of the City of Paterson.
    [Submitted March 23d, 1914.
    Decided June 15th, 1914.]
    On appeal of Martin S. Paine from a decree of the court of chancery advised by Vice-Chancellor Stevenson, whose opinion is reported ante p. Jj®.

      Mr. Noah A. Stancliffe (of the New York bar) (Mr. William, F. Delaney and Mr. Arthur M. Woodford on the brief), for the appellant.

      Mr. Edward Ward McMahon (of the New York bar) (Mr. Charles Thaddeus Terry (of the New York bar), Mr. David F. Edwards and Mr. Frank H. Hall on the brief), for the respondent Prank Miller Lumber Company.

      Mr. William-1. Lewis, for the respondent Joseph Sharpe Construction Company.

      Mr. William B. Gourley, for the respondent John Agnew Company.

      Mr. John J. Fallon, for the First National Bank of the Town of Union.

      Mr. William S. Delaney, for Martin S. Paine.

      Mr. William B. Gourley, for the John Agnew Company.

      Mr. David F. Ediuards, for 'Frank Miller, trading as Frank Miller Lumber Company.

      Mr. William I. Lewis, for the Joseph Sharpe Construction Company.
   Per Curiam.

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

For affirmance — Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Bogert, Vredenburgh, White, Heppenheimer — -10.

For reversal — None.


text:
    William Berdan, appellant, v. Passaic Valley Sewerage Commission, respondent.
    [Submitted March 23d, 1914.
    Decided June 18th, 1914.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, whose opinion is reported in 82.N. J. Fq. 286.

      Mr. Warren Dixon, for the appellant.

      Messrs. Biker & Biker, for the respondent.
   Per Curiam.

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

For affirmance — The Chief-Justice, Garrison, Swayze, Trencharb, Bergen, Minturn, Iyalisch, Bogert, Vrebenburgh, White, Heppeniteimer — 11,

For reversal — Hone.


text:
    Irma Leigh Earl, petitioner and respondent, v. Binney Woodward Earl, appellant and defendant.
    [Submitted March 23d, 1914.
    Decided June 18th, 1914.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis, whose opinion is reported in 81 N. J. Eq. m.

      Mr. Theodore Baches, for the petitioner and respondent.

      Messrs. Gashill é Gctskill, for the appellant and defendant.-
   Per Curiam.

A consideration of the proofs in this cause satisfies us of the soundness of the conclusion reached by the vice-chancellor. The decree under review will be affirmed.

For affirmance — 1The Chief-Justice, Garrison, Swayze, .Trencharb, Parker, Bergen, Minturn, Kalisch, Bogert, Vrebenburgh, White, Heppenhetmer — 12.

For reversal — Hone.


text:
    Edward V. Goerz, appellant, v. Mathilda Goerz, respondent.
    [Submitted March 23d, 1914.
    Decided May 4th, 1914.]
    On appeal from a decree of the court of chancerjr advised by Advisory Master Hartshorne.

      Messrs. McDermott & Enright, for the appellant.

      Messrs. Weller & Lichtenstein, 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 Advisory Master Hartshorne.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenohard, Bergen, Minturn, Kalis oh, Bogert, Yredenburgh, White, Heppénheimer — 11.

For reversal — None.


text:
    Grand Court Foresters of America, State of New Jersey, appellant, v. Court Cavour, No. 133, Foresters of America, et al., respondents.
    [Submitted March 23d, 1914.
    Decided May 4th, 1914.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor' Stevens, whose opinion is reported in 8B N. J. Eg. 89.

      Mr. Philip J. Echo Hand, for the complainant-appellant.

      Mr. Anthony B. Finelli, for the defendants-respondentsi '
   Per Curiam.

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

For affirmance — The Chier-Justioe, Garrison, Swayze, Trenoi-iard, Bergen, Minturn, Kalisch, Bogbrt, Vredenburgh, White, Hbpdenheimer — 11.

For reversal — None.


text:
    The Paulsboro Loan and Building Association, appellant, v. Annie E. Lummis et al., respondents.
    [Submitted March 23d, 1914.
    Decided May 4th, 1914.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning.
    ; Mr. Austin H. Swachhanerj for the appellant.

      Mr. W. Earle Miller and Mr. John Boyd Avis, for the retspondents.
   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, Garrison, Swayze, Trenchard, Bergen, Mintuen, Kalisoh, Boqert, Vredenburgh, White, Hebrenheimer — 11.

For reversal — None.


author: Pee Curiam.

text:
    Henry D. Phillips, appellant, v. Jennie F. Phillips, respondent.
    [Submitted April 11th, 1914.
    Decided May 4th, 1914.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Baches, whose opinion is reported in 81 N. J. Eq. 459.

      Messrs. Yroom, 'Dickinson <& Scammell, for the appellant!

      Mr. Linton Satterllmcdte, for the respondent..
   Pee Curiam.

The decree appealed from will be affirmed, for the reasons' stated in the opinion died in the court below by Vice-Chancellor Baches.

For affirmance — The Chile-Justice, Garrison, Swayze, Teenohard, Berg km, Minturn, EJaliscii, Bogert, Vredenbuegii, White, Hepplnheimer — 11.

For mversal — None.


text:
    William Bayley, appellant, v. Sarah Bayley, respondent.
    [Argued March 4th, 1914.
    Decided March 4th, 1914.]
    On appeal from a decree of the court of chancery advised by Advisory Master Halsey M. Barrett.

      Mr. Absalom P. Bachman, for the appellant.

      Mr. Jerome 1). Q-edney, 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 Advisory Master Halsey M. Barrett.

For affirmance — The Chief-Justice, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisch, Bogert, Vredenburgh, Congdon, White — 11.

For reversal — Hone.


text:
    Charles H. Blohm, respondent, v. John M. Hannan et al., appellants.
    [Argued March 23d, 1914.
    Decided May 8th, 1914.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis, whose opinion is reported in 82 N. J. Eq. 192.

      Mr. J. Emil Walscheid, for the appellants.

      Mr. Charles E. Blohm and Messrs. McDermott '& Enright, for the respondent.
   Pee Curiam.

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

For affirmance — The Chief-Justice, Trenchard, Parker, Kalisoh, Bogert, Hepreni-ieimer — 6.

For reversal — Bergen, Minturn, Vredenburgh, White — 4.


text:
    Charles W. Norcross, appellant, v. Marion Pearl Norcross, respondent.
    [Submitted March 23d, 1914.
    Decided May 8th, 1914.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Baekes, whose opinion is reported in 80 N. J. Fq. 195.

      Mr. Francis Y. Dobbins, for the appellant.
   Per Curiam.

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

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Bergen, Minturn, Kalisoh, Bogert, Vkedenburgii, White, Heppenheimer — 11.

For reversal — -Fone.


text:
    Robert Swinley, appellant, v. Isaac A. Hall, respondent.
    [Submitted March 23d, 1914.
    Decided May 8th, 1914.]
    On appeal from a decree of the court of chancery.advised by Vice-Chancellor Lewis.
    Messrs. Hudson & Joelson and Mr; George 8. Hilton, for the appellant.

      Mr. Wayne Dumont, 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 Lewis.

For affirmance — -The Chibe-Justice, Garrison, Swayze, Trenchaed, Bergen, Minturn, Kalisci-i, Bogert, Vredenburgh, White, Heppenheimer- — 11.

For reversal — Hone.


text:
    Hannah J. Summerill, appellant, v. Joseph G. Summerill, executor, &c., respondent.
    [Argued March 24th, 1914.
    Decided May 8th, 1914.]
    On appeal from a decree of the court of chancery made bjr •Chancellor Walker, whose opinion is reported ante p. 3.

      Messrs. Bleakly & Stoclcwell, for the appellant.

      Messrs. French <& Bichareis, 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 the chancellor.

For affirmance — The Chiee-Justice, Trenohard, Bergen, Minturn, Kalisch, Bogert, Yredenburgh, White, Heppenjleimer — 9.,

For reversal — Hone.


text:
    Walter Sternberg, respondent, v. Rose Sternberg et al., appellants.
    [Submitted March 24th, 1914.
    Decided May 8th, 1914.]
    On appeal from a decree of the court of chancery advised by Vice-Chanc-ellor Stevens.

      Mr. Otto A. Stiefel, for the appellants.

      Messrs. Biker & Riker, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the conrt’below by Vice-Chancellor Stevens.

For affirmance- — -The Chibe-Justice, Garrison, Swayee, Trenckaru, Bergen, Minturn, Bogert, Vredenburgh, White, Heppenhetmer — -10.

For reversal — Hone.


text:
    Florence L. Petterson, appellant, v. Frederick H. Petterson, respondent.
    [Argued March 24th, 1914.
    Decided May 8th, 1914.]
    , On appeal from a decree of the court of chancery advised by Advisory Master Charles H. Hartshorne.

      Mr. Lewis A. Allen, for the appellant.

      Mr. Peter W. Stage/, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion iiied'in the court below by Advisory MasterHartshorne.

For affirmance — -The Chief-Justice, Trenchakd, Bergen, Minttjrn, Kalisch, Bogert, Yredenburgi-i, White, Heppenheimer — 9.

For reversal — Hone.


author: Per Curiam.-

text:
    Albert E. Purchase et al., appellants, v. Atlantic Safe Deposit and Trust Company et al., respondents.
    [Submitted April 11th, 1914.
    Decided May 8th, 1914.]
    On appeal from a decree of the corirt of chancery advised by Vice-Chancellor Learning, whose opinion is reported in SI jV. JEcp B44-

      Messrs. Wilson & Carr and Messrs. Thompson & Smothers, for the appellants.

      Messrs. Garrison & Voorhees and Mr. Ulysses G. Styron, for the respondents.
   Per Curiam.-

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

For affirmance — The Ciiiee-Justice, Garrison, Swayze, Tbenchard, Bergen, 'Minturn, Kalisch, Bogert, Vreden-BUllGH, Ht-.'PPENIIEIMER-10.

For reversal — .None.


text:
    William Gulden, appellant, v. August W. Lucas, respondent.
    [Submitted March 23d, 1914.
    Decided June 15th, 1914.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported in 81 N. J. Eq. 106.

      Mr. Gharles TV. Kappes, for the appellant.

      Messrs. Eudspelh, Bysdylc é Garrison, for the respondent,
    JSTo opinion was read. The decree was affirmed.
   For affirmance■ — Tun Chief-Just ice, Garrison, Swayze, Tbhnchard, Parker, Bogert — 6.

For reversal — Bergen, Mintcrn, Kalisoh, Vredenburgii, White, HEPraaram ivr er — 6.


text:
    Anna R. McGrath, respondent, v. William F. Norcross, appellant.
    [Argued July 1st, 1913.
    Decided November 17th, 1913.]
    On appeal from an order of the court of chancery advised by Vice-Chancellor Learning, who filed the following opinion:
    The bill in this suit'ivas filed by complainant, pursuant to our statute, to quiet title to a tract of land in Atlantic county. 4 ■Qomp. 8tat. p. 5399. Defendant answered, claiming title in himself. An issue at law was framed and tried in the supreme court and the proceedings before that court have been duly returned here. Defendant now moves for a new trial.
    At a former trial of the same issue at law a general verdict was rendered in favor of defendant. That verdict was set aside by this court and a new trial ordered. In the opinion then filed ■and reported in 78 N. J. Eq. 120, will be found a general outline of the title then and now claimed by the respective parties. At the conclusion of the second trial five several interrogatories were submitted to the jury, and by the jury answered; but no general verdict was submitted or rendered.
    It is now urged in behalf of defendant that no decree can be properly entered in this court in the absence of a general verdict, and that a new trial must be granted fox that reason; Collins v. Whiteside, 75 N. J. Law 865, is cited in support of this contention.
    The record which has been returned to this court embraces a transcript of the entire proceedings before the law court. That record discloses that after both parties had concluded their evideuce and rested, the trial court suggested that it would he practical and beneficial to procure from the jury a “special verdict,” whereupon counsel for the respective parties conferred and framed five questions to be submitted to the jury; the trial court thereupon submitted these five questions to the jury and permitted respective counsel to address the jury touching the proper answers to be given, to these questions. At the.eoftclusion of the arguments the court charged the jury, and, among other things, explained to the jury the application and force of each of the five interrogatories. These interrogatories were all answered by the jury. The record nowhere discloses that either' of the contending parties requested that a general verdict'be submitted to the jury either in connection with or without these Interrogatories, or in any way objected to the submission of any of the interrogatories or took cxceptioii either formally or informally to the manner in which the case was thus submitted or suggested to the trial court that answers to these interrogatories could not properly take the place of and be used with like effect as a general verdict. The transcript of the proceedings indicates that the method adopted was designed by all parties in interest as a suitable method to bring to this court the determination of the jury on all the essential aspects of the controversy. It is claimed by counsel for defendant, however, that objections were made to a submission of the case to the jury in the maimer stated, and this does not appear to be disputed by opposing counsel. Assuming that objections were duly made in behalf of defendant touching-the manner in which the ease was submitted to the jury, I think it here immaterial whether in a court of law, on motion for judgment, these several answers of the jury to the interrogatories propounded might be considered insufficient as special findings because of the absence of a general verdict, or insufficient as a special verdict by reason of the practice of law courts, on motion for judgment on, special verdicts, to consider only the pleadings and poslea. The present suit .is pending in this court under its ancient jurisdiction over bills quia timet as that jurisdiction has .been extended by statute. McAndrews & Forbes Co. v. Camden, 78 N. J. Eq. 224. Upon the issue at law which this court sends to the law court for trial before a jury no judgment is entered, but a transcript of tlic entire proceecliugs at the trial in the law court is returned to this court, and the conduct and result of .the trial are subject to review here only. American Dock and Imp. Co. v. Trustees Public Schools, 37 N. J. Eq. 266, 269. If, from an examination of the entire record, it now appears that the answers of the jury to the several interrogatories are adequately supported by the evidence, and that the several answers embody facts found by the jury which in the light of all the proceedings had at the trial appear to he conclusive of the issue which was sent to the law court for trial, no general verdict or additional findings could be of essential service to this court in framing its decree. If, therefore, these several answers are found lo be supported by the evidence, and are also found to ascertain as facts matters which, when considered in the light of all the evidence introduced at the trial, fully sustain complainant’s claim of title to the locus in quo, and in like manner defeat defendant’s claim of title, defendant’s motion for a new trial must be denied, unless some of the errors assigned by defendant touching the admission or exclusion of evidence and instructions to the jury are found to be substantial.

      Note. — -Printed to correct the reporter's mistake as to the identity of the order affirmed and as to the vice-chancellor’s opinion referred to, in the same case reported in 88 A7. J. Eg. 367. — Rep.

      The first interrogatory submitted to the jury was as follows: “Are the premises in dispute within the survey of 33,078 acres — ■ plaintiff’s Exhibit 1 ?’ This was answered, “Yes.” The second interrogatory was: “Was there ever a survey to Edmund Iliff of the premises here in dispute prior to the survey of 33,078 acres ?” This was answered, “Ho.” It seems to me unnecessary to pursue the inquiry further if it be true that the locus in quo is within the boundaries of the survey known as plaintiff’s Exhibit 1, and that no survey was made to Iliff prior thereto, as complainant holds under plaintiff’s Exhibit 1, and defendant claims under a survey to Iliff. I am also convinced that these two findings of the jury cannot properly bo regarded as contrary to the weight of the evidence. It is difficult, if not impossible, to reach the conclusion that the locus in quo is within the boundaries of the survey marked plaintiff’s Exhibit 1, if it be assumed that Babcock creek therein referred to is the creek now commonly known by that name, but many other circumstances and conditions touching that survey are entitled to consideration in' determining its location, and I am unable to conclude that the determination of the jury is so clearly against the evidence as to justify this court in disregarding- it. But whether that survey included the locus in quo or not, it is conceded that the resurvey — plaintiffs Exhibit 8 — did include it, and the answer to the third interrogatory was to the effect that neither of the eight Iliff tracts referred to in that resurvey, as excepted therefrom, was the seven hundred acres Iliff survey under which defendant claims. If this be true, it becomes immaterial whether the boundaries described iin plaintiff ’s Exhibit 1 included the locus in quo or not. The question submitted by this third interrogatory is peculiarly a jury question. A great amount of testimony was taken, with a view to locate the eight Iliff survey's referred to as excepted from the resurvey, and this folding cannot properly be disregarded. This is equally true as to the preceding folding, to the effect that there was no survey to Iliff of the premises in dispute prior to the survey known as plaintiff’s Exhibit 7, for the existence of a prior Iliff survey as claimed by defendant is wholly dependent upon.presumptions arising from recitations; touching the existence and force of such presumptions, the jury were fully and accurately charged by the court; i t was the peculiar province of the jury to weigh such presumptions in the light of all the evidence, and their folding cannot be said to be without substantial support from the evidence. Touching defendant’s claim of title, it may be said that if there was no survey to Iliff of the premises in dispute prior to plaintiff’s Exhibit .7, it cannot be assumed that such a survey may have been made at a later date, for the recitation of that survey, on which defendant chiefly relies, is in an instrument bearing date prior to plaintiff’s Exh&it 1. The record discloses defendant’s claim to be under the Iliff survey; if that survey never existed defendant’s claim of paper title necessarily fails. The necessary and inevitable effect of the answers to these three interrogatories, when these answers are considered in connection with the claims of paper title of the respective parties which cannot be said to be in substantial dispute, is to wholly affirm complainant’s title and overthrow that of defendant. A general verdict in favor of complainant would add no light to the present record’ and serve no useful purpose in framing a decree. I am convinced that the motion for a new trial must bo denied unless errors are found in evidence admitted or excluded or instructions to the jury given or refused.
    The trial court withdrew from the juiy the consideration of any claim of title'by adverse possession. Tn this there was no error. Neither the original statute touching suits to quiet title nor the amendment of 190.1 authorized a hill to he maintained in any ease in which the defendant was in possession of the lands title to which were by the bill sought to he quieted. The provisions of the statute are such that whenever a defendant asserts possession in himself, or otherwise denies the jurisdictional requirements named in the act, and demands an issue of law on the question of title, a preliminary hearing to determine the jurisdictional facts becomes a necessity. If, at such hearing, it he found that defendant is in possession, the suit must be dismissed. This course was adopted in this suit, and the claim of defendant to possession was heard and determined adversely to defendant. The opinion of this court on that question is reported in 70 N. J. Eq. 364, and the finding of fact and conclusions of law there stated were subsequently affirmed by our court of errors and appeals. 71 N. J. Eq. 764. It is urged, however, that this preliminary adjudication touching the claim of possession by defendant cannot be properly deemed operative to deny to him the right to a trial of the same claim before the law court to whom the issue of law is sent for trial; assuming that to he true, an examination of the proceedings at that trial clearly discloses that no evidence of possession was offered or introduced which would have justified a verdict for defendant based upon a claim of adverse possession.
    Defendant urges, as grounds for a new trial, a great number of assigned errors in the proceedings before the law court. It is, I think, impracticable to here discuss them separately with reference to their force and effect. I think it sufficient to here merely state that I have been unable to reach the conclusion that any reversible error was committed at the trial, and the findings of the jury are, in my judgment, adequately supported by the evidence. I feel obliged to deny defendant’s motion for a new trial.

      Mr.. Thomas F. French, for the appellant.

      Messrs. Collins & Corbin, for the respondent.
   Per Curiam.

The order appealed from will he affirmed, for the reasons stated in the opinion filed in the court below by Yice-Chancellor Learning.

For affirmance — The Ci-iiee-Justice, Garrison, Swayze, Trenohard, Parker, Bergen, Minturn, Kalisoh, YredenBURGH, CONGDON, WHITE, TeRHUNE, HePRENI-IEIMER — 13

For reversal — Rone.


author: Walker, Chancellor.

text:
    Margaret W. Tantum v. Catherine Campbell et al.
    [Decided May 28th, 1914.]
    1. J. M. devised certain land to O. C. for life and after her death to the lawful issue of her body begotten, her surviving, in equal shares as tenants in common in. fee-simple; but in case she should die without such lawful issue surviving, then to M. and P. as tenants in common, or to the survivors of them. — Held, (1) O. C. took an estate for life, with a contingent remainder to her issue in esse at the time of her death or to M. and P. or the survivor of them for want of such issue alive at the determination of the particular estate; (2) the remainder is contingent as to the person or persons who shall take at the death of the life tenant, and, therefore, the rule in Shelley’s Ease, which is a rule of law and not of construction, does not apply.
    2. C. 0-, the life tenant, and her surviving children, executed two-mortgages upon the devised premises. M. M. S., one of the children, died -leaving a child, B. B. S. On foreclosure of the two mortgages mentioned (witl} a prior one not here in dispute) B. B. S., who was made a defendant, moved to strike out of the bill the prayer that she may be decreed to pay the complainant’s mortgages or be foreclosed of her equity of redemption in the mortgaged premises. — Held, further, the motion is tantamount to a demurrer, and a demurrer will lie to the prayer of a bill in chancery. That part of the prayer of the bill in this cause to which objection is made must be struck out, because; As B. B. S.’s mother had only a contingent remainder (with others) at her death, which became extinguished, as to her (mother’s) interest, by the happening of that event, she (B. B. S.) inherited nothing from her mother; and, as her great-grandfather by his will created that remainder, which has as yet become a vested remainder in nobody, she has not taken as a purchaser from him; although she may, and will, yet do so, if she survives her grandmother, the life tenant, because she is one of the issue of her grandmother’s body begotten, according to the legal meaning of that term, which comprehends issue ad infinitum and not that of the body of an immediate ancestor only.
    3. ' -Neither M. M. S., daughter of the life tenant, nor any of her ('life tenant’s) other children, were empowered by section 19 of the Conveyancing act to dispose of, or in any manner charge, the land described in the bill, they being within the proviso that no person shall be empowered to dispose of (mortgage) anj' contingent estate where the contingency is as to the person in whom the estate may vest.
    On motion to strike out part of the prayer of a bill to foreclose.

      Mr. William J. Baches, for the motion.

      Mr. Charles TL. English, contra.

   Walker, Chancellor.

The bill in this cause was filed to foreclose three mortgages, two of which are' involved in the pending motion; one of the latter made by Catherine Campbell and her then surviving children. to James D. Tantum, guardian, January 7th, 1898, and the other by Catherine Campbell and her then surviving children to James D. Tantum, guardian, November 1st, 1899. All three-mortgages became the property of the complainant by virtue of several assignments.

The title to the mortgaged premises was in James McGuire at _ the time of his death and passed from him by devise. So much of his will as is pertinent to the present inquiry provides as-follows:

“I do give and bequeath the said lot of land and the dwelling to boerected thereon, when the same is completed, to my daughter, Catherine, for and during the term of her natural life, to her sole use and benefit,, entirely free of any charge or control whatever of any husband she how has or hereafter may have; and after the decease of my said daughter Catherine, I give and devise the said lot of land and dwelling to the lawful issue of her body begotten, her surviving, to hold in equal shares as-tenants in common in fee-simple.
“It is my will in case my said daughter, Catherine, shall die without lawful issue of her body begotten, her surviving-, and I do in such event give and devise the said lot of land and dwelling to my daughter Mary and my son Phelix in equal shares as tenants in common, or to the survivor of them at the time of the decease of my said daughter Catherine without surviving issue as aforesaid, to hold respectively as follows,” &c.

There is no doubt but that Catherine Campbell, daughter of the testator, has but a life estate in the premises. And the question pressing for'solution is, did the estate devised to her for life-become a vested estate in remainder in her issue in esse at the-time the devise took effect — that is, upon the death of the devisor, or was the remainder to her issue a contingent one ?

It is to be observed that if all of Catherine’s issue he dead at the time of her decease, then thq land in question will go to the testator’s daughter Mary and his son Phelix, or to the survivor of them.

One of the mortgagors in the last two mortgages above mentioned -was Mary M. Sweeney, a daughter of Catherine Campbell, the life tenant. Mrs. Sweeney has since died, leaving a daughter, Lida B. Sweeney, one of the defendants, her surviving. Motion is made on behalf of Lida

“to strike out so much of the bill of complaint in the above-entitled cause as prays that this defendant, Lida B. Sweeney, may be decreed to pay to the said complainant the amount due to her on the bonds and mortgages secondly and thirdly set out in the said bill of complaint, and in default thereof that this defendant may be foreclosed of and from all equity of redemption or claim of, in and to the said mortgaged premises, and that the same be sold to satisfy the amount due on the bonds and mortgages aforesaid, for the following reasons — first, because this defendant did not, nor did any person through whom she claims an interest in the said lands create the debt or any part thereof, nor did she, or any person through whom she claims an interest in the said lands, execute or deliver any of the bonds and mortgages aforesaid; second, because neither the mother of this defendant nor any of the other children of Catherine Campbell were empowered to dispose of, or in any manner charge, the lands described in the bill of complaint, by the act entitled ‘An act to authorize the transfer of estates in expectancy’ (Gen. Stat. p. 381 § 138), the estate being an estate in expectancy or a contingent estate, where the contingency is as to the person or persons in whom the estate may vest.”

This motion is made under rule 213 and is, in effect, a demurrer to the hill and affords a proper opportunity deliberately to determine the merits. Bigelow v. Old Dominion Copper Co., 74 N. J. Eq. 457, 461, 462. The motion is confined to a portion of the prayer of the bill, and it appears that a demurrer, and, consequently, a motion such as this, will lie to relief prayed in a bill in chaucery. Dan. Ch. Pl. & Pr. *547. That tire general demurrer, in Hoppock's Executors v. United, &c., Railroad Co., 27 N. J. Eq. 286, was considered as affecting the prayer of the bill is apparent from the language of Chancellor Runyon at the end of his opinion (on p. 292), and also from the observation of Mr. Justice Reed, speaking for the- court of errors and appeals, iu the same case, sitb nom. United, &c., Railroad Co. v. Hoppock, 28 N. J. Eq. 261. (at p. 263).

The defendant Lida B. Sweeney contends that her contingent estate is not charged with the encumbrances which her mother assumed to create. She claims that she will take immediately from her grandfather as a purchaser, and not immediately from her mother as an heir, upon the death of her grandmother, the life tenant, -and therefore her contingent estate, should it ripen into a vested remainder by her outliving her grandmother, will not be charged. These contentions I am bound to support as well founded in law.

As Lida’s mother had only a contingent remainder' (with others) at her death, which became extinguished, as to her (mother’s) interest, by the happening of that event, she inherited. nothing from her mother; and as her grandfather by his will created that remainder, which has as yet vested in nobody, she has not taken as a purchaser from him; although she may, and will, yet do so, if she survives her grandmother, tlia life tenant, because she is one of the issue of her grandmother’s body begotten, according to the legal meaning of that term.

I say that she, Lida B. Sweeney, will have a vested interest in the land if she survives her grandmother, the life tenant; and that is because the term “issue of one’s body” means issue ad infinitum, and not that of the body of an immediate ancestor only.

In the treatise on estates tail in .70 Cyc. it is laid down, (at ¶. 60S) : - '

“Estates tail are estates of inheritance, which, instead of descending to heirs generally, go to the heirs of the donee’s body, which means his lawful issue, his children, and through them to his grandchildren in a direct line, so long as his posterity endures in a regular order and course of descent.”

And Blaekstone observes (2 Bl. Com. 118).:

“Tail general is whore lands and tenements are given to one, and the heirs of his body begotten; which is called tail-general, because, how often soever such donee in tail be married, his issue in general by all and every such marriage is, in successive order, capable of inheriting tlie estate tail.”

As was said by Vice-Chancellor Learning in Coyle v. Coyle, 73 N. J. Eq. 528:

“The word 'issue,’ in its ordinary legal meaning, embraces grandchildren and remoter descendants, as well as children. When used in a will, a more restricted meaning may be attributed to it, if, from- the terina of the testamentary disposition, it appears that the testator used the word, in a particular moaning less general than the ordinary meaning.”

See also the remarks of Chancellor Magie in Inglis v. McCook, 68 N. J. Eq. 27, 39.

In the case at bar I can find no language indicating an intention on the pari of the testator to limit -the contingent remainder in the estate devised to the children only of Catherine Campbell; and, no such intention being discoverable in the testament, the word “issue” must be given its usual significance and be held to include all of the descendants of Catherine Campbell. And as the limitation over is to Catherine’s lawful issue in equal shares, all of her descendants, at her death, will take per capita and not per stirpes.

The devise in the case at bar is very like that in Teets v. Weise, 47 N. J. Law 154, in which it was held by the court of errors and appeals:

“Under a devise of lands to A for her li He, and at her death to her children who may be living at the time of her decease, no •estate vests in a child who -dies before A.”

And Mr. Justice Parker, who wrote the opinion for that court, quoting from Van Tilburgh v. Hollinshead, 14 N. J. Eq. 32, remarked (47 N. J. Law 156):

“Chancellor Green said that when the limitation over of the estate upon the death of a devisee is to the surviving children of such devisee, a contingent estate is created, and if a child should ■die before the devisee for life, the estate passes to the survivors. Perhaps the principle is more clearly stated in the syllabus to that cause, prepared by the chancellor, viz.: ‘The mle is that where an interest is given to one for life, and after bis death to his surviving children, they only can take wrho are alive at the time the distribution takes place, and the estate is therefore contingent.’ ”

The doctrine in Van Tilburgh v. Hollinshead was expressly .approved and applied by Chancellor McGill in Dutton v. Pugh, 45 N. J. Eq. 426. And he -was affirmed by the court of errors .and appeals. S. C., sub nom. Jones v. Jones, 46 N. J. Eq. 554.

Catherine Campbell, the life tenant, is still living, and Mary M. Sweeney, her daughter, one of the makers of the mortgages In question, is dead. The devise was to Catherine for life, and after her death to the lawful issue of her body begotten, her ■surviving, but should she (Catherine) die without lawful issue her surviving, then over to testator’s daughter Mary and son Phelix in equal shares, or 'to the survivor of them.

It .is plainly apparent that the remainder to the issue of Catherine Campbell was contingent as to the persons who should take. I cannot find any intent in the will to vest in the children of the devisee for life an indefeasible estate; therefore, no estate in the land described in the bill vested- in the defendant Lida B. Sweeney upon her mother’s death.

The complainant insists that the rule in Shelley’s Case applies, and that Catherine Campbell took a fee-simple or a fee tail under the will of her father; that if section 10 of the statute of descent is applicable, the estate vested in Catherine Campbell, the devisee for life, and in her children equally to be divided between them as tenants in common in fee, after her death; and if section 11 of the statute is applicable, the estate devised being such as would have been an estate in fee tail, Catherine has a vested estate for life, and her children took a vested estate in remainder as tenants in common in fee.

Bnt the rule in Shelley’s Case does not apply. As was said by Mr. Justice Depue, speaking for the court of errors and appeals, in Martling v. Martling, 55 N. J. Eq. 771 (at p. 782):

“The rale in Shelley’s Case is a rule of positive law, and not of construction. Where, upon the construction of a grant or devise, the rale is found to he applicable, it cannot be controlled by an expression of a contrary intent. In such cases the devolution of the estate is irresistibly fixed. But whenever the word ‘heirs’ is used in a conveyance or devise, and the rule in Shelley’s Case is invoked, a preliminary question arises, whether the word ‘heirs’ has been used in such a sense as will make the rule in Shelley’s Case applicable.”

And as was said by me, when vice-chancellor, in Robeson v. Duncan, 74 N. J. Eq. 746 (at p. 749):

“Whether or not the rule in Shelley’s Case applies depends upon the construction of the grant or devise under consideration. Martling v. Martling, 55 N. J. Eq. 771, 782.
“In my opinion, the estate with which we are here dealing is one in which the limitation over is by way of contingent remainder, and therefore the rule in Shelley's Case does not apply."

The devise under consideration having created an estate for life in Catherine Campbell, with remainder to her issue surviving at her death, and, for want of any such survivor, then over to third persons, &c., the contingency beiug as to the person or persons who shall take at the death of Catherine, who is still alive, there is no room for the operation of the rule in Shelley’s Case.

The act of March 14th, 1851, now section 19 of “An act respecting conveyances (Revision of 1898),” Comp. Stat. p. 1589, does not come in aid of the complainant’s case. That act provides that any person may convey by any deed (and a mortgage falls within the description) any contingent interest or other future estate in expectancy in any lands, although the contingency on which- such estate is to vest may not have- happened, and that every person to whom any such estate shall have been conveyed, his heirs and assigns shall, on the happening of any such contingency', be entitled to stand in the place of the person by whom the same shall have been conveyed; provided, that no person shall be empowered to dispose of any contingent estate or expectancy, where the contingency- is as to the person in whom, or in whose heirs the same may vest. As already remarked, the contingency^ in this case was as to the person. There never was a vesting in fee iir Mary M. Sweeney', daughter of Catherine Campbell, the life tenant, as she, Mrs. Sweeney, died in her mother’s lifetime. Her contingent estate was always within the proviso of the act of 1851. See Cantine v. Brown, 46 N. J. Law 599.

The result reached is that that part of the prayer of the bill to which objection is made must be struck out, with costs.


text:
    National Biscuit Company v. Pacific Coast Biscuit Company et al.
    [Decided June 4th, 1914.]
    1. One may not palm off his goods as the goods of a rival and thereby cheat the purchasing public and injure the business of the rival.
    2. A manufacturer of bakery products, -which adopted as its trade mark a seal known in the trade as “In-er-seal,” which seal was placed on each end of paper cartons containing the products, and had become an identifying mark of its products, thereby acquired the right to the exclusive use of the seal, and a rival manufacturer would be restrained from subsequently adopting a seal of similar general appearance, and similarly placed on its cartons, so as to mislead the purchasing public.
    3. A manufacturer of bakery products, which adopted the word “Uneeda” displayed on paper cartons containing its product and so advertised its business as to make the name identify its product, thereby acquired the exclusive use of the word as applied to its product, and a rival could not use on its product the word “Abetta” displayed on its cartons and thereby confuse the purchasing public.
    4. A manufacturer suing to restrain unfair competition need not show intentional fraud, or that anyone had been actually deceived, but need only show that the marks, words, or other special arrangement of a rival manufacturer are such as will likely mislead persons in the ordinary course of purchasing goods and inducing them to suppose that they are purchasing the article of the manufacturer.
    5. A paper carton constructed by superimposing on the cardboard car- » ton blank a sheet of waxed paper of the size and shape of the blank, so that, when folded, it will form a unit box and possess the capacity of preserving the contents equally with hermetically sealed tin boxes and bundle packages, may not be exclusively appropriated by a manufacturer as devised to mark and indicate its product, but a rival manufacturer may use similar cartons and bundle packages without being guilty of unfair competition.
    6. Where a manufacturer of bakery products has adopted for its products paper cartons of various sizes and trade marks placed on each end thereof and trade names, such as “Uneeda Biscuit,” “Uneeda Milk Biscuit,” “Oysterettes.” “Marshmallow Dainties,” “Cocoanut Dainties,” “Oatmeal Crackers,” &c., a rival manufacturer will be restrained from adopting any seal on its cartons or trade names which are calculated to deceive the purchasing public, but it will not be restrained from selling such cartons with their asserted trade mark thereon so differentiated in general appearance and application from the manufacturer’s trade mark that it could not deceive the ordinary purchaser, nor will the rival manufacturer be restrained from selling cartons of the size, weight, and shape of the manufacturer’s packages, nor from using the representative colors as wrappers for such packages, provided the packages are so differentiated in general appearance from the manufacturer’s packages that they will not deceive the ultimate purchaser.
    On bill, &c. On final hearing on pleadings and proofs.

      Messrs. Vredenburgh, Wall & Carey, Mr. Chandes K. Offield (of the Illinois bar) and Mr. Earl D. Babsl (of the New York bar), for the complainant.

      Messrs. Collins & Corbin and Mr. William D. Fenton (of the Oregon bar), for the defendants.
   Walker, Chancellor.

The object of tliis bill is to restrain unfair competition in trade.

The complainant and defendant companies are corporations organized under the laws of this state. Both are engaged in the same line of trade — the manufacture and sale of bakery products. The business of the defendant company is confined to the Pacific coast states and adjacent territory, while the field of activity of the complainant company is nation-wide. The complainant’s , career commenced in 1898, when it acquired some of the leading bakery plants in the counhw, with which it began operations. It already had a market for its goods, brought to it by these plants^ and by the exercise of a superior order of scientific and mechanical intelligence and of commercial acumen and industry, acquired a wide and enviable reputation for the high quality of its products. A market for these wares was established in the defendant’s territory shortly after the complainant started business in 1898.

The principal innovation made in the bakery line by the complainant is that of housing and transmitting to the ultimate consumer bakery products with a minimum of deterioration, and practically as they leave the ovens. This is accomplished by the use of paper cartons. Up to the complainant’s advent, shipments were mainly in “bulk” — that is, in barrels and wooden boxes. Paper cartons, oE the shoe-box style, with loose paper lining, and hermetically sealed tin boxes, were also used, but only to a very limited extent. The tin boxes were commercially too costly and the shipment in bulk was objectionable because of the tendency of the contents to absorb moisture and deleterious and offensive odors, and to breakage. Uncleanliness in the handling by the retailer was also to be reckoned with.

The paper cartons adopted by the complainant were much smaller than those theretofore used and were of a size to permit of sales at popular prices — five and ten cents per package. These cartons.are constructed by superimposing upon the carton blank, made of cardboard, a sheet of wax paper of the size and shape of the blank, which, when folded, form a unit box, and, it is said, possess the quality and capacity of preserving the contents equal to the hermetically sealed tin box. The cartons are of various sizes and shapes, adapted to the forms of the proposed contents; and to identify the contents as its products, and to distinguish the same from those of other dealers, the complainant adopted a trade mark and a variety of trade names for its various products, and peculiar and distinctive labels and wrappers to envelope the cartons, all of which, it is daimed, the defendant fraudulently simulated, to the injury and damage of the complainant’s trade.

The alleged infringement of fifteen widely different styles of cartons and carton wrappers and applied trade names, for as ' many kinds of crackers or biscuits; the methods of construction of the carton, and of the form of bundle package of assembled cartons, as well as the trade mark, is involved in this litigation.

The law relating to fraudulent or unfair competition between traders is so firmly established and has been so lucidly illustrated and defined by the courts of England and of this country, that exteiided citation of. authorities will be profitless. The underlying principle that no man' has a right to palm off his wares as those of another, thereby cheating the purchasing public and filching the business of a rival, is so essentially an element of natural justice and so solidly imbedded in our jurisprudence, that all that is necessary to quicken a court of equity, is to show that in the particular instance the offence has been committee!. The eases cited by counsel in their briefs exemplify the illimitable conditions and circumstances under which this simple doctrine requiring men to be honest towards each other may be invoked.

The case of Wirtz v. Eagle Bottling Co., 50 N. J. Eq. 164, is a striking example of the adaptation of the principle to unfair competition in the use of imitative labels and wrappers. The opinion in that ease so fully covers the whole scope of the law applicable to the facts presently to be considered, and furnishes so clear a guide, that I am persuaded to quote from it in extenso. The complainant, in that' case, by his industry and fair dealing, had built up a large and valuable trade as a bottler of beer and-identified his goods by a peculiar and distinctive label, which label the defendant substantially copied. Vice-Chancellor Van Fleet, in granting a preliminary injunction, subsequently made perpetual (at p. 166), said:

“If we speak with accuracy, these labels cannot bo called trade marks, but they serve substantially the same purpose. They are the marks by which the complainant’s goods are distinguished in the market from all like goods, put upon the market by other persons, and are, for that reason, according to many decisions, just as much under the protection of the law as trade marks are. The law protects them for the same reasons and in precisely the same way that it does trade marks. The leading principle of the law on ibis subject is, that no man should be permitted to sell his goods on the reputation which another dealer has established in the market for his goods, and this principle applies with equal force to the case where the goods oE such other dealer are known in the market- by a label as it does to the ease where they are known by a mark which is strictly a trade mark. Fo dealer can lawfully adopt the label of another dealer, or one so near like it as to lead the public to suppose that the article to which it is affixed was put upon the market by such other dealer. Miller Tobacco Manufactory v. Commerce, 45 N. J. Law 18, 24. The reasons upon which this rule rests were stated by Mr. Justice Knapp, in the ease just cited, substantially as follows: While the markets are open and free to all, and fair competition should be encouraged, still every dealer must be required for the protection of the public and to promote fair dealing, to depend for his success upon his own reputation and the quality of his own productions. If he were allowed to deal under false colors and sell his productions for those of others, the result would he that he would not only cheat the public, but also defraud him whose right place in the market he filled rvith spurious goods. Such competition would not be fair competition — it would be closer akin to piracy.
“The defendant’s labels were prepared under the direction of its general manager. * * * He further says, that in designing the defendant’s labels he had no purpose or design of palming off the defendant’s goods for those of the complainant. Admitting all this to be true, it is manifest it constitutes no defence. The vital question in cases of this kind is not what did the defendant mean, but what has he done ? The legal quality of an act, resulting in injury, must be decided not by the motive with •which it was done, but by the consequences which have necessarily resulted from it. The law, in civil cases, does not attempt to penetrate the secret motive which induced the act brought in judgment, but judges of its legal quality solely by the consequences which have actually and necessarily proceeded from it. It is no less a dictate of justice, than of sound reason, that ever]'’ person must be understood to have intended to do just what is the natural consequence of his act deliberately done. * * * Tor it is a matter of common knowledge that the ordinary buyer does not, as a general rule, exercise as much caution in buying an article, for which he pays a few pennies, as he does in purchasing a more valuable thing. The instances are very fare, I suppose, where a purchaser exercises as much care in buying a bottle of beer as he does in buying a bottle of whiskey, a box of cigars, or a hat or a coat.
“* * * Where, as in this case, the subject-matter of the controversy is labels, and the question is, whether one is a fraudulent simulation of the other, the decision must always, to a large extent, be controlled by the evidence furnished by the labels themselves. As a general rule, they constitute the very best evidence of which the case is susceptible. That is the case here. A comparison of these labels, whether made singly or in a group* shows conclusively, as I think, that the use of the defendant’s labels constituted a plain violation of the complainant’s Tight. 'It is difficult to believe that one set of labels could have been made so near an exact copy, in all their special characteristics, of another set without an effort at simulation.”

In 1900, the complainant, the National Biscuit Company, adopted as its trade mark'a sign or symbol known, in the trade as the “In-er-seal” or “In-er-seal trade mark.” This seal is square, and of a peculiar shade of red, with clipped corners and white lines thereon forming an ellipse, divided equally by a horizontal line, from which extends a perpendicular line halving the upper half of the ellipse, with two horizontal lines crossing the perpendicular line above the ellipse. This configuration of white lines on the seal is said to have been the sign and mark of the first printers in the early period of that art, taken by them from the Catholic Church, and by the latter from 'Paganism, and signifies the triumph of the spiritual over the material world. These seals were placed upon each end of all the paper cartons containing the baker products placed on the market by the complainant, and in addition to the purpose they serve in sealing the cartons, arc- an attractive and conspicuous feature of the carton wrapper.

The initial trade name coined and applied by the complainant to an important part of its cracker output is “Uneeda,” or “Uneeda Biscuit.” The association of the “In-er-seal” trade mark and the name “Uneeda Biscuit” formed the slogan of the complainant’s business. • By the expenditure of a stupendous amount of money in lavish, but judicious, advertisement, they became known to almost every man. woman and child in this country as the identifying mark and name of the complainant’s goods. I quite agree with the statement of one of the witnesses who testified that

“Uneeda Biscuit and the In-er-seal, it may be said, are woven into the fabric of the National Biscuit Company. In fact, they are the business. As to their value they are probably worth millions of dollars to the National Biscuit Company. Its physical properties such as plants, machinery, and so forth, if destroyed, could be replaced within a reasonably short time, while the loss of the In-er-seal and IJneeda Biscuit and the good will that goes with them would be, if not irretrievable, at least a very great calamity.”

The defendant the Pacific Coast Biscuit Company succeeded, to the business of the Portland Cracker Company in 1899. The latter-named company had been engaged in the cracker baking business at Portland, Oregon, since 1886, and in the carrying on of its business used a variety of labels, some descriptive of the package contents and others to identify its various kinds of cracker and biscuit output, and to mark them as the product of that company, but none that bore any resemblance to the “In-er-seal,” the label of the complainant; none square in shape, with clipped corners, a red field with white marking and applied to either end of paper cartons of the dimensions of those of the complainant. When the defendant bought the property of the Portland Cracker- Company it took over these seals and for a time used them, substituting only its name for that of its predecessor, until about the year 1903, when they were practically discarded, and a seal known as “Gold Coast End Seal” was adopted, which was also far unlike the complainant’s “In-er-seal.” In 1907 this one was also abandoned, and red-end seal termed “Swastika Red-end Seal,” with clipped corners and white line markings upon a background of red of exactly the same shade as the complainant’s seal, and which is the infringing seal complained of, was substituted. It is described in the record as a symbol of prehistoric origin, emblematic of a beneficent deity, ’’eternal life, benediction and blessing, good wishes and good augury, and was and is used by Indian basket makers and blanket weavers, potters and silversmiths, and is known as the Navajo Indian cross, and was well known and in use as a religious emblem in India fifteen centuries before the Christian era. Like the complainant’s “In-er-seal” it is being used by the defendant on both ends of paper cartons of identically the same size and shape as the complainant’s cartons. The two labels, the “In-er-seal” and the “Swastika” differ only in their markings. Laid side by side, and disassociated from the cartons, the resemblance Is not marked, but when the defendant’s seals are applied to the encl of cartons resembling, as to size, shape, wrapper application and euphony of coined names, the similitude is striking, and when thus associated is of a character calculated to mislead and deceive the unwary and unsuspecting purchaser.

■ The federal courts have had occasion, by injunction, to protect this complainant in its seal and seal application against an infringing seal, under circumstances much like those present in this ease. Ohio Baking Co. v. National Biscuit Co., 127 Fed. Rep. 116; National Biscuit Co. v. Swick, 121 Fed. Rep. 1007.

The claim of the defendant that it and its predecessor, the Portland Cracker Company, used a red-end seal, square in outline with clipped corners, upon the end of cartons, to denote its wares prior to the adoption by the complainant of its in-er-seal, is not sustained by the testimony. Moreover, the red-end seals which were used by the defendant were, as I have already stated, discarded for the “Gold Coast Seal” in 1903.

Inspection and comparison of the cartons of the complainant and defendant, of the nomenclature and wrapper embellishments, and of the red-end' seal application, are sufficient to satisfy me of the copying by the defendant of the complainant’s trade name and carton and carton wrappers. I. cannot conveniently deal with the cartons collectively, nor will it be possible, within the limits of these conclusions, to advert in detail to all of the points of similarity between the two sets of cartons to which my attention has been called, and, therefore, reference will only be made to the prominent features.

Generally, as to size, shape and capacity (and the fifteen cartons of the complainant differ in these respects), it may be said that the defendant’s cartons are exact and substantial counterparts of the complainant’s. The red-end seal on both ends of the infringing cartons, and the superimposed wax-paper interior, are also uniform points of likeness. The resemblances in other respects, submitted by the complainant, I will take up in the order in which the infringements are charged in the bill.

]. This relates to the red-end seal already disposed of.

2. Complainant's “UneedaDefendants “Abetla” Biscuit.— The wrappers of the two cartons to which these words are applied are of a dark body color, with white parallelogram decorations. The style of type and the location of the display of the name of the biscuit and of the reading matter is the same, and the latter conveys the same meaning. That the complainant is entitled to the exclusive use of this coined word, as applied to crackers or biscuits, seems to me to be beyond question, and this extends to any word similarly applied which rings with the same tone. “Abetta” was coined by the defendant with knowledge of the use and application by the complainant of the suggestive name “Uneeda.” This, coupled with the circumstances of two consecutive abandonments by the defendant of similar and graduating, but less offensive, infringing cartons, and the obvious purpose of creating the impression of an alliance between the two biscuits, and of superiority in that of “Abetta” (a better than “Uneeda”), evinces that the selection by the defendant of the word “Abetta” was intended to bring to it profit from a confused purchasing public.

3. Complainanfs "Nabisco;” Defendant’s "Parfait” and, "Fiesta.” — The word “Nabisco”' is made up practically of the initial syllable of each of the words “National Biscuit Company.” Both packages are of tin. The contents of each is a sweet cracker. The color scheme of the wrappers is the same. It is of a white background -with red and gold decorations — clearly a case of copying.

4. Complainanfs "Social Tea Biscuit;” . Defendant’s "Flite Biscuit.” — There is a pronounced resemblance in the decorations and appearance of these two packages. “Social” and “Elite” convey ihe same impression, and the substitution of the latter for the former on the defendant’s cartons evinces but a single moti ve — confusion.

5. Complainant’s "Uneeda Milk Biscuit;” Defendant’s "Abetta Milk Biscuit.” — These are as nearly alike as “two peas in a pod.” The answer of the defendant respecting its carton, and its statement that it has stopped making it, impliedly confesses copying.

6. Complainanfs "Oysterettes;” Defendant’s "Take Point Oysterettes.” — This word “oysterettes” was coined by the complainant and applied to a particular brand of its crackers, in the year 1901. Tire word is indicative of the contents of the cartons. Up to 1909 the complainant had marketed some fifty millions of these carton contents, under this trade name, and, on the Pacific coast, in excess of a million. The claim of the defendant that its predecessor originated and applied this name to a brand of its goods prior to the adoption by the complainant, is not borne out by the testimony. The prominent eye-object on the carton is, of course, the word “Oybterettes.” The defendant’s “Toke Point” 'is printed with type comparatively obscure. The boxes are of the same size.

7. Complainant’s "Fig Newtons;” Defendant’s "Fig Sultana.” — The copying here is manifest. The body color of the wrapper in each carton is white, with gold scroll work embellishments and red-end seal. Obviously, the defendant’s carton is an imitation.

8. Complainant’s and Defendants "Marshmallow Dainties.” —The complainant was the first to originate and apply this trade name to one of its carton bakery products. This rvas in 1905. Up to the time of the taking of the testimony, in 1909, it had sold under this name some five million of these carton contents. The exact trade name has been appropriated by the defendant and is the subject of complaint.

9. Complainants "Zu Zu;” Defendant’s "Hoo Iloo” Ginger Snaps. — “Zu Zu” and “Hoo Hoo” are merely catch words, with the same general sound when spoken, and not widely different to the non-discriminating when printed. The words, respectively, on the two cartons, have the same general appearance, and with the box arrangement and red-encl seals, show similarity, and leave the impression that imitation, was intended. “Zu Zu,” as a trade name, was adopted by the complainant in 1901, and applied to ginger snaps. The sale of these cartons to June, 1909, was approximately one hundred million, and over a million in the Pacific coast states. The defendant claims the right to the use of “Hoo Hoo” because of prior appropriation by its predecessor. The record does not satisfy me that this contention is well founded.

10. Complainant’s "Frotaría/’ Defendant’s "Mariiami” Fruit Biscuit. — Similarity of size of cartons, of wrapper coloring, of red entering largely into the decorations, the red-end seal application, the fruit biscuit contents; and the confusion between the two names as to pronunciation of their ending syllables, taken as a whole, evidence copying.

11. Complainants and Defendants “Cocoamd Dainties.”— This term was originated by the complainant as a mark for one of its products. The trade name ñas been copied. Both cartons are of the same size. The general arrangement of the lettering, the light color of the two boxes and the red-end seal, all tend towards confusion.

12. Complainants “Old Time Sugar Cookies/’ Defendants “Old Fashioned Sugar Cookies.” — The only change made by the defendant in appropriating this trade name is the substitution of the word “fashioned” for the word “time,” both of which, in connection with the remainder of the name, have the same significance. The same size and shape cf the carton, of the white colored mappers, and the application of the red-end seal, complete'the likeness.

13. Complainant's “Celebrated Zwieback;” Defendant’s “Genuine Ztvieback,” — These packages are approximately of the same size and shape. The German and English printed matter bears comparatively the same appearance and meaning. Aside from this and the red-end seal application, there does not appear to be other similarity.

14. Complainant’s “Fancy Assortment;” Defendants “Fancy Assorted Cakes.” — The size and dress of these cartons have a single eye appearance. The term applied to the defendant’s carries with it the same meaning as that adopted by the complainant. The decorations as to red border lines are attracting similarities.

15. Complainants “Oatmeal Crackers;” Defendants “Abetia Oatmeal Crackers.” — Both mappers are green. The shade of the defendant’s varies slightly from that of the complainant’s. The prominent sight-object on both is “oatmeal crackers.” On the defendant’s, in dim type and small print, apparently intended not to be readily observed, is the word “Abetta.”

16. Complainant’s and Defendants “Animal Box.” — These seem to be counterparts, even, to the cord handle. Here the copying is complete.

The history, as disclosed by the voluminous record, of the progressive steps of the defendant in the work of seal imitation, which' culminated in the adoption of the “Swastika” seal, read in connection with the history relating to the constant advance in copying, and the gradual approach by the defendant in the use of cartons and wrappers, in appearance like those of the complainant, convinces me that the “Swastika” red-end seal was fashioned and applied by' the defendant to the ends of its cartons, and that these cartons and wrappers and trade names, so much like those of the complainant, were simulated by the defendant for no other purpose than to mislead the public into purchasing its goods for those of the complainant, and thus to purloin the complainant’s business. I cannot escape this conclusion.

The Portland Cracker Company and the defendant built, up a cracker trade, with seals of a distinctive type, the more prominent and generally used one of which was a red seal with a boy sitting on a cracker box, apparently exhibiting a cracker in each hand, dividing the words “Oar Brand.” The defendant also created its own style of cartons and wrappers to individualize and distinguish its output.' After the complainant entered the industry and introduced its novel and successful methods, a campaign of simulalion upon the part of the defendant began. Seals were abandoned and cartons and carton wrappers oí the defendant’s selection and origin were from time to time discarded and eventually replaced by those the subject of this suit. The deadly', parallel between' the entire line of the complainant’s and defendant’s seals, cartons, eai'ton wrappers and trade names is so conspicuous that it requires no’ great perspicuity to observe that the defendant’s present methods of displaying and vending its wares are not attributable to any' desire on its part to honestly build up a trade of its own, but rather that they are the culmination of a premeditated and single purpose of dealing under the cover of the good will of a successful rival.

It is unnecessary', in these passing-off cases,' to find intentional fraud, or that it be shown that anyone has been actually deeeived, to entitle a complainant to protection. It need not appear that there is precise copying of any one of the cartons of the complainant. In Ball v. Siegel, 116 Ill. 137, it was said:

“It is true that in cases of this kind, as a general rule, exact similitude is not required to constitute an infringement, or to entitle the complaining party to protection, but if the form, marks, contents, words or other special arrangements or general appearance of the words of the alleged infringer’s device' are such as would be likely to mislead persons in the ordinary course of purchasing the goods, and induce them to suppose that they were purchasing the genuine article, then the similitude is such as entitles the injured party to equitable protection, if he takes seasonable measures to assert his rights and prevent their continued invasion.”

And Vice-Chancellor Van Fleet, in the Wirtz Case (50 N. J. Eq. 168), puts it thus:

“If it appears that the resemblance between the two labels is such that it is probable, in the sale of the goods of the parties, the one will be mistaken for the other, enough is shown to make it the duty of the court to interfere. Edelsten v. Edelsten, 1 De G. J. & S. 185, 200. As was said by Mr. Justice Clifford, in McLean v. Fleming, 96 U. S. 245 — a case in which all the principles pertinent to the ease in hand were stated with great clearness and fullness — no rule as to what degree of similarity must exist in order to constitute an infringement can be laid down which may be applied to all cases. All that can be done in that record is to say that where the similarity is sufficient to convey a false impression to the public mind,’and is of a character to deceive the ordinary purchaser buying with the caution usually exercised in such transactions, there sufficient ground exists to entitle the injured person to redress. There are cases which lay down a more liberal rule in favor of persons claiming protection, and declare that if the resemblance is only such as is calculated to deceive the careless and unwary, a sufficient degree of similarity will exist to justify the court in interdicting the use of the counterfeit.”

The facts in the ease sub judice, in my judgment, abundantly establish that the defendant’s cartons and carton wrappers, its seal, trade mark and trade name, associated as they are, tend towards deceiving and are likely to deceive the purchasing public into the belief that the defendant’s crackers and biscuits are those of the complainant.

The carton formation and the bundle packages are not the subject of exclusive appropriation by the complainant as devices to mark and indicate its products. The cartons known as the “'Peters’ Patent” were declared in Union Biscuit Co. et al. v. Peters, 125 Fed. Rep. 601, as not a patentable invention. There can, of course, be no monopoly of the shape, size or capacity of a box. The lining of such boxes with wax or par-affine paper superimposed thereon, and forming a unitary structure capable of inter-folding at the ends, for the enclosing of perishable goods, is a system or method which it seems to me must necessarily be common to ail bakers. I have not a doubt but that the complainant used this form of package before the defendant, and that the secondary purpose of the defendant in adopting it was a part of its general plan of imitating the complainant’s line of operation. Nor do I think it can be disputed that, in connection with the other simulations which have already been pointed out, this particular one failed of its mission. This may also be said of the bundle package. Instead of using wooden boxes to enclose for shipment an assembled assortment of filled cartons, the complainant used paper shaped into box form. The only service in this case of the imitation of the carton package and the bundle package is to emphasize the trend of the defendant towards copying the complainant’s style.

There will be an injunction restraining the defendant, including the director-defendants (for the sake of convenience I have heretofore referred to all of the defendants as one), from putting up and selling or offering for sale:

(a) Any carton of bakery products having thereon an imitation of complainant’s “In-er-seal” trade mark calculated to mislead or deceive, like the defendant’s “Swastika” trade mark. This shall not be construed to restrain the defendants from selling such cartons with their asserted trade mark thereon, provided the trade mark is so differentiated in general appearance and application from the complainant’s trade mark that it is not calculated to deceive the ultimate ordinary purchaser.

(&) Any carton of bakery products having thereon an imitation of complainant’s “Uneeda Biscuit” trade name calculated to mislead or deceive, like those on defendant’s carton “Abetta Biscuit.”

(c) Any carton of bakery products having thereon an imitation of complainant’s trade names, “Uneeda Milk Biscuit,” “Oysterettes,” “Marshmallow Dainties,” “Cocoanut Dainties,” and “Oat Meal Crackers,” calculated to mislead or deceive, like those on defendant’s cartons, respectively, “Abetta Milk Biscuit,” “Toke Point Oysterettes,” “Marshmallow Dainties,” “Cocoanut Dainties,” and “Abetta Oat Meal Crackers.”

(d) The particular forms of cartons or packages referred to in the bill of complaint and identified therein as “Complainant’s Exhibit Defendant’s Abetta Biscuit and Bed-end Seal Carton No. 2,” and “Complainant’s Exhibit Defendant’s Infringing Packages Nos. 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 respectively,” which shall by reason of the collocation of size, shape, colors, lettering, spacing and ornamentation, present a general appearance as closely resembling complainant's exhibits respectively referred to in the bill of complaint and marked as “Complainant’s Exhibit Complainant’s Cartons Trade Name Uneeda Biscuit Wrapper No. 2,” and “Complainant’s Exhibit Complainant’s Cartons Nos. 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16,” as do the said defendant’s respective infringing packages afore-mentioned, but this shall not be construed as restraining the defendants from selling packages or cartons of' the size, -weight and shape of complainant’s packages, nor from using the respective colors as wrappers for such packages, provided such packages are so differentiated in general appearance from said complainant’s respective packages that they are not calculated to deceive the ultimate ordinary purchaser.

The complainant’s prayer for an accounting will be denied upon the grounds and for the reason stated by Vice-Chancellor Stevenson in International Silver Co. v. William H. Rogers Corporation et al., 66 N. J. Eq. 140.

The complainant is entitled to costs.


text:
    Harriet E. Rodman Smith v. Morton P. Robinson et al.
    [Decided June 13th, 1914.]
    1. An encroachment by a testamentary trustee on the trust estate of infant legatees, in advance of the period of distribution, is not absolutely forbidden, but the trustee may in a proper case apply for and obtain an order therefor or his act may be ratified.
    2. A trustee must invest the trust fund as directed by statute (2 Gen. Stat. 1896 pp. 2382,'2401, 2416 §§ 116, 196, 258), so that it may yield an income to the beneficiary, and he may not purchase real estate, and thereby burden the trust fund with the annual payments of taxes, interest, insurance, water rents and repairs.
    3. A trustee must keep accurate accounts to protect the beneficiary, and, in case of doubt arising from the failure of a trustee to do so, the doubt must be resolved against him.
    4. Evidence of payments by a trustee is ordinarily shown by the production of vouchers, though other convincing proof may be shown to justify an allowance to him for payments made.
    5. Payments by a trustee, whether authorized in advance or after-wards ratified by a competent court, can only be lawfully made out of the property of the beneficiary to or for whom the advances are made, and cannot be made to a tenant of a particular estate out of the corpus which is to go to remaindermen after an estate for life or years.
    G. A will whereby testator gave property in trust to pay the issues and profits thereof to a beneficiary for life, and whereby he declared that, after the death of the life tenant, it was his wish that the property should go to the heirs-at-law of the life tenant, created in the heirs a contingent remainder, for the heirs cannot be determined until the end of the life estate.
    7. Where personalty is bequeathed to heirs, the word “heirs” means next of kin, in the absence of a clear intention to the contrary.
    On final hearing on pleadings and proofs.

      Messrs. DeQraw é- Murray, for the complainant.

      Messrs. Maxson & Bullj for the infant defendants.
   Walker, Chancellor.

The bill is filed by Harriet E. Rodman (Smith), the widow and executrix of Isaac P. Rodman, deceased, the trustee under the last will and testament of Morton Robinson, deceased, praying the settlement and allowance of an account annexed to the bill, and a decree that the estate of the deceased trustee be reimbursed for moneys, alleged to have been expended by him, in his lifetime, in excess of the trust fund and interest, and also that the complainant be reimbursed for expenditures by her, since the decease of her husband, in the payment of taxes, interest and insurance upon, and necessary repairs to, the real estate to which reference will hereafter bo made. And this upon the theory that the advances were made for the benefit of infants.

Morton Robinson, the father-in-law of the deceased trustee, Isaac P. Rodman, died on November 3d, 1893, leaving a last will and testament in which, in the residuary clause thereof, he devised and bequeathed as follows:

“All tbe rest, residue and remainder o£ my property, of whatsoever kind, and wheresoever found, I give to my wife, Anne E., and my five children, Anna M. Cross, Harriet E. Rodman, Fannie W. Turrell, Benjamin A. Robinson and Morton P. Robinson, share and share alike, with the exception of Morton P. Robinson, his share to be placed in the hands of Isaac P. Rodman, my son-in-law, in trust and for the benefit, and during the life of the said Morton P., it being my will that the said Morton P. only receive the issues and profits of his share during his life, and after his death, it is my wish that his share goes to his heirs-at-law.”

The will was duly probated by one of the executors, Herbert Turrell, who paid over to Tsaac P. Rodman, the trustee, in November, 1894, $5,007.Gl, as the share of the life tenant, Morton P. Robinson.

At tlie death of the testator, Morton P. survived, as did his wife and two daughters, Harriet E. and Anne E., aged, respectively, two and four years, and on April 28th, 1911, another daughter, Prances H., was born to them.

Isaac P. Rodman continued as such trustee until his death, on April 26th, 1911, sixteen years and upwards.

There is no evidence that any part of the trust fund was ever invested by the trustee (except as presently mentioned), and it is conceded by complainant’s counsel in his bill and brief, that the trustee died without having accounted, and without having asked or obtained the aid or advice of a court as to the use or expenditure of the trust fund.

The trastee, about, six months after the death of the testator, expended $800 of the principal of the trust fund as part payment in the purchase of a house in East Orange, for a home for Morton P. and his famity, including infant children, taking title in himself as trustee. The whole consideration was $1,800, the balance of $1,000 being secured by a mortgage covering the purchased property, made by Isaac P. Rodman, as trustee.

Shortly after the receipt of the trust fund, and up to some time in 1906, the trustee paid to the wife of Morton P. the weekly sum of $5, and also paid the taxes, interest, insurance premiums, wafer rents for, and some money for repairs to the house so purchased.

The deceased trustee left a will, by which he devised his residuary estate to his wife, the complainant, and appointed her executrix thereof.

After the death of her husband, although alleging the trust fund to have been exhausted, the complainant, Mrs. Rodman, continued the pajrmeuts of interest, taxes, water rents and insurance premiums relating to the East Orange house. It is claimed that no part of the trust fund now remains (except this house), both principal and interest having been exhausted by the payments mentioned.

The complainant asks a decree that the real estate be charged with the excess expended by the trustee, and that the house be sold or mortgaged, and. the complainant, as such executrix, relative to the trust estate, and individually, for her personal outlay, be reimbursed from the proceeds.

The settled law in this state is that encroachment upon the principal of the estate of infant legatees, in advance of the period of distribution, is not absolutely, nor under all circumstances forbidden, and that a trustee may, in a proper case, apply for and obtain the protection of an order to malee such encroachment on behalf of a ward. And it appears, too, that what may be done m advance may be ratified afterwards. Pfefferle v. Herr, 75 N. J. Eq. 219; Stephens v. Howard’s Executor, 32 N. J. Eq. 244; In re Hannah Barry, 61 N. J. Eq. 135.

Ho necessity for the invasion of the trust fund for the support of Morton’s infant children is, from the evidence in the case, apparent.

The testator’s -widow was living and possessed of means, an.d continued, after the death of her husband, to bestow upon her son material and substantial aid; and other members of the family cheerfully and constantly contributed their assistance. The children were clothed by their grandmother, and their education was in the public schools, without expense, excepting music and, telegraphy, which were gifts from their grandmother and aunt.

The purchase of the East Orange property as a home appears to have been a voluntary and gratuitous act of the trustee, not based upon the request, nor with the consent, of the life tenant. It is testified that it was done after a consultation with his wife, who was pleased with the prospect of a better residence, and with the other members of the family, none of whom had any interest in the trust estate. This was done largely because, it is said, the trustee wanted Morton’s family to have a nice home. The result of the purchase was to burden the trust fund with the annual payment of taxes, interest, insurance, water rents and repairs.

The securities in which trustees were permitted to invest at the time the estate of Morton Eobinson came to the hands of his trustee were bonds issued by this state {Gen. Stat. p. 2382 § 116) ; bonds of any county, city, town or township of this state issued pursuant to authority of law, with certain limitations as to municipal indebtedness {Ibid. p. 2116 § 258); and bonds secured by first mortgage upon real estate estimated to be worth at least twice the amount loaned, at not less than, five nor more than six per centum per annum. Ibid. ¶. 2101 § 196.

It was the duty of the trustee to have invested this fund in the manner directed by the legislature in order that it might yield an income to the cestui que trust. Ho such investment was made. The fund remained in the hands of the trustee mingled, excepting as to the $800 paid on account of the purchase of the house, with his own funds, and for a period of sixteen years and upwards was handled by him without accounting, and was used by him without any apparent appreciation of his duty and in such a way -as apparently would have furnished ground for his removal from office, had such application been made. Pfefferle v. Herr, supra.

The trustee never kept any separate account of the trust fund. The account appended to the bill is made up by the complainant from seven or eight small books of the trustee containing memoranda relating to his personal affairs, and so entered therein, by the use of initials and abbreviations as to be wholly unintelligible without explanation, and explanation has not been made.

In re Gaston Trust, 35 N. J. Eq. 60, 64, Vice-Chaneellor Van Fleet said:

“Trustees are bound to keep clear and accurate accounts, and in case doubts or obscurities arise from their failure to do so, they should be resolved against the trustees. * * * The law imposes the duty of keeping accounts on trustees for the protection of the cestui que trust, and a trustee will not be permitted to defeat this salutary purpose by his carelessness.”

In Dufford v. Smith, 46 N. J. Eq. 216, 217, Chancellor McGill said:

“It is the duty of trustees to keep accounts and to take and preserve vouchers for payments they make. The burthen of proving a matter of discharge in their accounts is upon them, and obscurities and doubts, which they should have guarded against, must be resolved against them.”

Competent evidence of payment is ordinarily shown by the production of vouchers, and such or other convincing proof is usually a requisite to allowance.

Vice-Chancellor Bergen in Willis v. Clymer, 66 N. J. Eq. 284, 287, said:

“I do not think the trustee should be allowed to discharge himself for so large a sum of money without a voucher or some proof of the payment other than his own testimony, and certainly not without some proof of the circumstances connected with the payment.”

The only vouchers produced are vouchers for tax and water bills affecting the real estate and several receipts for moneys paid the life tenant, which he declares he signed in entire reliance upon the good faith of the trustee, but without actual knowledge of the matters involved in the receipts.

Payments, whether authorized in advance-or afterwards ratified by a competent court, can only be lawfully made out of the property of the beneficiary to or for whom the advances are made. They can never be paid to the tenant of a particular estate out of the corpus of property which is to go to remainder-men after an estate for life or years.

While the right to relief prayed has not been established on the proofs, there is yet another reason why the bill should be dismissed. It is because the estate in remainder is a contingent one, and, as already remarked, the principal of an estate can be invaded under certain circumstances only for a beneficiary who has a vested interest in it.

It will be remembered that the testator after creating the trust in favor of his son Morton P., limited over the remainder in these words: “It is my wish that his share goes to his heirs-at-law.”

Blackstone observes that “by law no inheritance can vest, nor any person be the actual, complete heir of another, until the ancestor is previously dead.” 2 Bl. Oom. 208.

The devise in the case at bar is very like that in Bartles’s Case, 33 N. J. Eq. 46, wherein the testator gave to his daughter an estate for life and after her decease to such persons as should be her heirs-at-law of land held by her in fee-simple. Chancellor Eunyon, speaking of this devise (at p. 47), said:

“The remainder in fee is given at the death of the life tenant to ‘such person or persons as shall be her heir or heirs-át-law of land held by her in fee-simple;’ that is, to those who by law would inherit the property at her death if she died intestate seized thereof in fee. Who those persons will be cannot now be determined. Nemo est haeres viventis. She has heirs apparent and presumptive now, but whether those persons will be her heirs at her death and so entitled to the remainder, cannot be told until that time arrives. The testator manifestly did not refer to any particular individual or individuals, or class of existing persons, by the language which he employed, but used the word 'heir’ in the technical sense, as is particularly evident from his use of the future tense — 'such person or persons as shall be her heir or heirs-at-law, &c.’ — that is, such person or persons as shall be her heir or heirs-at-law when she dies.”

It appears that the estate held in trust for Morton P. Eobinson, the life tenant, and his “heirs” after him, is personal property; but that makes no difference, for two reasons — first, because when personal property is given to “heirs” by a will, in the absence of a clear intention to the contrary, the word “heirs” is construed to mean next of kin (Trenton Trust and Safe Deposit Co. v. Donnelly, 65 N. J. Eq. 119, 124), and there is nothing in this will to take it out of the general rule, and second, because the remainder is a contingent one, quite irrespective of whether the property is real or personal.

Morton P. Eobinson, the life tenant, is still living, and it cannot be said who will be his heirs-at-law or next of kin at the time of his death. He has children who, if they survive him, will be both his heirs-at-law and next of kin, but he may survive them, and, therefore, neither liis heirs-at-law nor next of kin can be ascertained until his decease. . ,

The bill must be dismissed with costs, including a counsel fee to counsel for the infants, to be paid out of the trustee’s estate and to be determined on application on notice.