author: Lewis, Y. C.

text:
    Frederick K. Fish v. A. Gould Harrison et al.
    [Decided February 19th, 1917.]
    , Under the evidence in this case—Held, that the purchase of fifteen shares of the stock of the Harrison Milling Company was made by one of the stockholders with his own funds, and they are therefore his property.
    On bill, &c. On pleadings and proofs.
    Jkfr. Edward Maxcson, fox the complainant.

      Mr. J. Henry Harrison and Mr. Robert II. McCarter, for the defendants.
   Lewis, Y. C.

The bill was filed in 1909. A demurrer was interposed and finally an order entered allowing an amended bill to be filed. This was done in the early part of 190.9. A demurrer was interposed to the amended bill setting forth numerous grounds of objection.. This was overruled.

The relief prayed for in the bill is—first, that an account be had of the amount due from defendant Harrison to the Harrison Milling Company because of improper disposition of the funds of the company by him, and second, that Harrison transfer and deliver to the milling company the fifteen shares of stock purchased from Ida M. Beyea with the funds of the corporation as alleged.

The cause came on for hearing before me, and at the conclusion of the taking of testimony the matter was referred to a master of this court to take and state an account from November 18th, 1905, between A. Gould Harrison and the Harrison Milling Company, ascertaining and reporting how much of the funds, if any, belonging to the company, A. Gould Harrison has appropriated to-his own use or purpose, either in his capacity as treasurer, or otherwise; and to ascertain and state the amount due from him to the company because of any improper, illegal or irregular disposition mado by him of the funds or property of the company; and in addition the master was ordered to take testimony for the court as to whether or not fifteen shares of the capital stock of the company, purchased by him with the check of the Harrison Milling Company, were bought with the funds and paid for out of the treasury of the company; and the master' reports that he has taken and stated an account from November 18th, 1905, between A. Gould Harrison and the Harrison Milling Company; that he has taken as valid the resolution in the minute book of the Harrison Milling Company, dated November 18th, 1905, which, in his opinion,ocharged off the net drawings of A. Gould Harrison in the sum of $4,552.63 up to and including November 30th, 1905. The account starts on December 1st, 1905, and as td its debits is a summary of the drawings shown on the account in the ledgers of the company, known as “A. Gould Harrison,” and throughout the testimony called his “drawing” account—$7,113.62. That the last item on either side of this account in the ledgers of the company is dated August 24th, 1911, when the account appears to cease; that both expert accountants agree on this figure, $7,113.62, as the total of the drawings shown by the “A. Gould Harrison” account from December 1st, 1905', to August 24th, 1911, inclusive; that the accountant of the complainant seeks to add to this figure a total of $450.71— the drawings shown by the account from November 21st, 1905, to November 29th, 1905, inclusive-; that it was the intention of the resolution, although it bears date November 18th, 1905, to include the drawings to November 30th, 1905, the figures $4,-552.63 being plainly set forth in the resolution; and the ledger account showing a debit of that exact amount on November 29th, 1905, is balanced by a credit entry of that amount, pursuant to the resolution.

The master further reports that in order 'to ascertain how much of the funds, if any, belonging to the company, A. Gould Harrison lias appropriated either in his capacity as treasurer, or otherwise, he has added to the total of the drawing account of A. Gould Harrison, the salary which he actually drew, as shown by the books, from November 18th, 1905, to' September 30th, 1909, after which latter date he was entitled to a salary of $3,000 per year; that' from the grand total he has deducted, as a matter of credit against the total debits, all of the credits shown in the ledger account of A., Gould Harrison, together with all salary which he actually drew from week to week during the period from November 18th, 1905, to September 30th, 1909; that in giving these credits shown in the ledger account to the defendant A. Gould Harrison, he has found that all of the resolutions in the minute book of the Harrison Milling Company, charging off the overdrafts of A. Gould Harrison, and authorizing additional salary from time to time, are valid, and that their intent and purpose are carried out in the account books of the company.

The master states in conclusion “that the amount due from the said A. Gould Harrison to the said company, because of any improper, illegal or irregular disposition made by him of the funds or property of the said company is the sum of $868.58, with interest from August 24th, 1911, since which date said sum has been due. In arriving at this figure I have not given A. Gould Harrison any credits for salary which he did not draw at the rate of $3,000 per year, commencing October 1st, 1909, as apparently authorized by resolution appearing on the minute book of the company under date of September 13th, 1909, for the ledger account 'A. Gould Harrison5 shows no such intention to credit him. It may be that he neglected to draw his full annual salary after October 1st, 1909, but he cannot recover it in this action, in the absence in said ledger account of any expressed intention on the part of the company to credit his debit balance with such credits as may be due him on account of said salary.55

The question concerning the ownership of the Beyea stock was reserved by me until the master had made his report.

Exceptions to the whole report of the master were filed by the solicitor of the complainant, but after carefully reading several times all the testimony that has been taken in this cause, I can find no error in the master’s conclusions. The burden of proof is upon the exceptant to show that the master is mistaken. This he has failed to do, and the master’s report should be confirmed.

This is a close corporation, all the stock being held by A. Gould Harrison, his wife and Frederick K. Fish. The suit was properly brought, as was decided in an opinion filed by the chancellor when sitting as a vice-chancellor; it being a well-settled rule that a stockholder, desiring relief by way of injunction or accounting for the misconduct of the officers or directors, misappropriation of the property for their private advantage, is not, in all cases, compelled to first ask the corporation to sue, 'and on its refusal institute suit, making the corporation a party.

If there were a single share of stock held by a person who had not given his consent to the charging off of these overdrafts made by A. Gould Harrison, I should not hesitate to set all the transactions aside, but the Beyea stock has been sold to A. Gould Harrison, and they, therefore, cannot complain; and, as I find that Mr. Fish consented to the crossing off of the overdrafts, he is estopped, and there is no one else to complain, as the wife of A. Gould Harrison has stood shoulder to shoulder with her husband. Of course, this conclusion depends upon my finding that the Beyea stock was purchased by Mr. A. Gould Harrison with funds belonging to him, which I may say is the conclusion that I have reached.

The hill and the proofs show that from the jrear 1907, the date of the acquisition of the Beyea stock by A. G. Harrison, the complainant, Fish, owned forty shares of the capital stock of the Harrison Milling Company; defendant A. G. Harrison owned ' twenty-four shares, and defendant A. L. Harrison sixteen shares. These three stockholders were also the only directors of the cor-' poration. Ida M. Beyea owned fifteen shares of stock for three or four years prior to 1907, they having come to her from the estate of her father, Hugh Mullen. These fifteen shares of stock were purchased by A. G. Harrison in February, 1907, and anjr rights or claims against the corporation that Mrs. Beyea may have had passed to the purchaser upon the transfer of her stock. She has not complained, and cannot complain, because she is not a stockholder. This fifteen, shares was purchased by A. Gould Harrison with the check of the defendant the Harrison Milling Company, he claiming that he sold his house and lot in Caldwell to his brother for $2,000, which he then loaned to the company and deposited to the credit of the company in the Bank of Montclair.

In my opinion, in Fish v. Harrison, 83 N. J. Eq. 533, I there stated: I feel satisfied that the brother of the defendant has told the truth about his part in the transaction.” The wife of A. Gould Harrison testifies that she and her husband told.Mr. Fish of the proposed sale of their Caldwell home for the purpose of getting funds to buy the stock, and that Fish was told of the sale and of the fact that the money had been put in the business until they could get hold of this stock. Fish admits that he suggested to Harrison the purchase of the stock by him, and that he consented that the excess above par of $20 a share, which the stock cost, could be charged olf to the expense account of tlio company.

Harrison produced evidence showing an entry “A. Gould Harrison, $2,000” on the stub of the company’s check book as of September 19th, 1906, and his own paid check, for this amount to the order of the company. The books of the bank were produced and they showed the debit of this amount against Harrison’s individual account, and its credit to the company’s account. The expert accountant for the complainant admitted in the testimony before the master that there did appear on the check stub, on the date in question, a deposit which included Harrison’s check of $2,000.

The manner in which a record of this loan was kept was by means of tickets or slips. Slips of paper termed "tickets” were kept in the cash drawer. Hpon these were placed cash receipts and payments, instead of immediately placing them in the cash book. A loan would be made to the company and entered on a ticket. Hpon repayment of the loan the ticket would be destroyed. Harrison testifies that when he obtained the cash from the sale of his house the company was a little short of funds, and as he did not know how soon he could get the Beyea stock, he loaned the money to the company, depositing it in the company’s bank account until he had completed negotiations for the purcliase of tbe stock. He further testifies that Coleman made an entry of this $2,000 credit upon a slip; the slip was put in the drawer, and that he, Harrison, saw the slip.

The whole matter of the stock purchase was gone into, and after the purchase of the Beyea stock for $1,500, the $500 still owing from the company to Harrison was left on the ticket as a credit, and subsequently repaid to Harrison. I am satisfied that the loan was made and that $1,500 of it was used in the purchase of the Beyea stock.

I shall advise a decree in accordance with these views.


source: Caselaw Access Project

author: Backus, Y. C.

license: Public Domain

text:
    J. Edward Farnum and George L. Farnum, administrators, &c., v. The Pennsylvania Company for Insurance on Lives and Granting Annuities et al.
    [Submitted July 15th, 1916.
    Decided July 27th, 1916.]
    1. The exercise of powers conferred by will is controlled by the law of the testator’s* domicile, notwithstanding the election of a foreign trustee and possession of the fund outside of the state.
    2. Whether the donee of a power duly executed it depends on her intention as gathered from the terms of her will.
    3. To determine whether or not the donee intended to execute the power by her will, the only .testimony admissible is that showing the actual conditions of the donee’s estate and of the trust fund, as distinguished from what she thought they were.
    4. Parol evidence of a testator’s declarations to show his intention or understanding of his will different from its legal significance, is incompetent.
    5. General residuary bequests of “my estate” refer to the testatrix’s own estate, and not property over which she had a power of appointment.
    6. The revocation by codicil of the execution of a power before that time three times exercised, is evidence that the testatrix did not intend to exercise it by her last testamentary act.

      On bill, &C.

      Messrs. McDermott & Enright, for tbe complainants.

      Messrs. Grey & Archer and Mr. Nelson B. GasJcill, for tbe defendants.
   Backus, Y. C.

This is a bill for an accounting. Paul Farnum domiciled in Burlington count}7, died in 1859, leaving a last will and testament executed in 1856 and admitted to probate, in and by which be bequeathed:

“In addition to the House and lot of land in Arch Street Philadelphia in the hands of a trustee for the use of my Daughter Sarah E. Farnum, I give and bequeath unto the Pennsylvania. Company for insurance on lives and Granting annuities located in the City of Philadelphia Pa. one hundred Thousand dollars in bonds or stocks, my said Daughters choice of such as I may die possessed, (Except Bank Stock which I divide between my sons) in trust Nevertheless for the use of my said Daughter Sarah E. Farnum, th'e interest or dividends ariseing therefrom to be paid by the said Company to the soue order oe my said daughter semiannually during the term of her natural" life, and not be liable for the debts nor affected by the extravagance or misfortunes of any husband she may Marry. And at the death of my said Daughter the principal sum and such interest as may have accumulated and not paid, my mind and will is, and I direct said Company or trustees to pay over to such, person or persons as my said Daughter by any instrument of writing in the nature of a Will executed under her hand and seal in the presence of two or more subscribing witnesses shall direct limit and appoint, or designate My will and design is that the House and lot in Arch Street shall pass in like manner to such person or person's as she may designate. (Provided however that I give the said Company my said trustee to Change any of the securities deposited with them whenever they may think proper during the life time of my aforesaid Daughter.”

• The administrators cum testamento annexo of Paul Farnum, deceased, claim that Sarah E. Farnum failed to exercise the power of appointment conferred upon her and filed this bill to recover .the trust fund.

Sarah E. Farnum married one Batterson in 1866, and from, that time on ivas a resident of Philadelphia, Pennsylvania'. She. died June 27th, 1915', leaving a last will and testament supplemented by two codicils', which were duly admitted to' probate by the register of wills of Philadelphia county. The will bears date February 2d, 1912, the first codicil April 23d, 1913, and the second October 15th, 1911. By the seventy-third item of the will she bequeathed as follows:

“One-half of all the' rest, residue and remainder of my estate, real, personal and mixed, including that over which I have or may have a power of appointment, I give, devise and bequeath to [naming beneficiary] and the remaining one-half of said rest, residue and remainder I give, devise and bequeath to the following named societies, persons, institutions and corporations in the proportions mentioned, viz. [naming beneficiaries].”

By the twelfth item of the first codicil she substituted some of the residuary beneficiaries. The ninth paragraph of the second codicil reads as follows:

“9. I hereby revoke all the provisions of Item Seventy-three in my said will and all the bequests therein contained and I also revoke all the provisions of Item Twelve in said first codicil to my said will and all the bequests therein contained.”

The remaining pertinent* items of the second codicil are as follows:

“13. Out of the rest, residue and remainder of my estate, I give and bequeath unto [naming beneficiaries and amounts]„
“14. I give and bequeath one-fourth of said rest, residue and remainder of my estate unto [naming beneficiary].”
“15. I give and bequeath one-fourth of said rest, residue and remainder of my estate unto [naming beneficiary].”
“17. Out of said residue and remainder of my estate I give and bequeath unto [naming beneficiaries and amounts].”
“18. All the rest, residue and remainder of my estate remaining, I give, bequeath and devise unto Miss Florence M. Moberly, who lives with me, absolutely.” ''

Mrs. Battersou died possessed of personal property in her own right inventoried at $381,130.66. By her will she made absolute bequests aggregating $339,250. By her first codicil she increased the legacies $11,500; and as her will stood after the execution of the second codicil, and at the time of her death, the absolute bequests amounted to $295,850, and bequests for life of $60,000 with reverter to the residue, amounting in the whole to $355,850. Inheritance tax and. costs of administration deducted may leave the personal assets a shade short to meet, presently, the legacies, but upon the termination of the life-interest legacies there will be a substantial balance to be divided under the residuary clauses. To this balance is to be added the house referred to in Paul Farnum’s will. There it is implied that this house was held in trust- for Sarah E. Famum. According to the statement contained in the brief of counsel it was in fact held by her in fee. There is no proof of this, but as counsel have exchanged briefs, and there is no denial, it will be assumed to be an admitted fact.

• The question presented for decision is, Does the will of Mrs. Batterson execute the power ? It is argued by defendants’ counsel that inasmuch as Mrs. Batterson was domiciled in Pennsylvania, and because the trust fund is in, and the trustee is a corporation of, that commonwealth, the point at issue ought to be decided according to the laws of that state, where the statute directs that a general bequest should be construed to include personal property, of which the testator had power to appoint, generally, and to operate as an execution of such power, unless the contrary intention appeared by the will. P. L. 1879 p. 88. The donor, at the time of the creation of the power, was a resident of New Jersey. So was the donee. The power was created and exists by virtue of the laws of this state, and it is settled law that the exercise of powers conferred by will is controlled by the law of the testator’s domicile, both as to the execution of the power and the interpretation of it. Rosenbaum v. Garrett, 57 N. J. Eq. 186; Bingham’s Appeal, 64 Pa. St. 345; Sewall v. Wilmer, 132 Mass. 131; Tudor v. Vail, 195 Mass. 18; Cotting v. De Sartiges, 17 R. I. 668; 16 L. R. A. 367; Lane v. Lane, 64 L. R. A. 849; In re Philbrick, 209 N. Y. 585; Prince De Bearn v. Winans, 111 Md. 434; Rhode Island Hospital Trust Co. v. Dunnell, 83 Atl. Rep. 858. The selection of a foreign trustee and possession of the fund outside of the state, does not affect the rule, for the reason that the property belongs to the estate of a testator domiciled here, and is to be administered according to our laws under the supervision of our courts, to which the trustee is amenable.

Whether Mrs. Batterson executed the power.in the manner prescribed, depends upon her intention to exercise it, which intention, in some form of expression, must be found in her will. The intention to execute a power must always appear in its execution either by express terms or recitals or by necessary implication. A reference to the instrument by which the power is given, is, indeed, not necessary to demonstrate the intention to execute such a power, but it must appear from the will that the intention existed. It need not appear by express terms or recitals in the instrument; it is sufficient if the act shows that the donee had in view the subject of the power. Meeker v. Breintnall, 38 N. J. Eq. 345. If the quest were to be confined to an inspection and consideration of the will and codicils, there would be no difficulty in reaching the conclusion that they evince no intention to dispose of the property, the subject of the power. No. allusion whatever is made in the many items of the will and codicils to the fund or the testatrix’s control over it. By each of the items a specified sum of money is bequeathed, referable prima facie to her own private fortune, and 'by the residuary clauses “the rest, residue and remainder of my estate” is disposed of. A general devise or bequest by the donee of a power in. which the testator refers to the property devised or bequeathed as his property, has been repeatedly held not to be an exercise of the power. Wooster v. Cooper, 59 N. J. Eq. 204; Meeker v. Breintnall, supra; Ackerman v. Ackerman, 81 N. J. Eq. 437; Lee v. Simpson, 134 U. S. 572; Patterson v. Wilson, 64 Md. 193.

At the hearing the defendants were given the widest latitude to prove intention. All of the testimony, aside from that which shows the condition of the testatrix’s estate and of the trust fund—the actual conditions as distinguishéd from what she thought they were from representations made to her—was clearly inadmissible and will be disregarded. This testimony is to the effect that just before she made her will, Mrs. Batterson inquired of Mr. Gates, an official of the trustee (the trustee was also her attorney in fact, managing her private estate), what property she had individually and what the trust fund amounted to, and rVas informed that the former amounted to about,$290,000, and-the latter over $100,000, and that if the two funds were taken 'as one estate there would, be ample funds to pay all the legacies which she had provided for and the expenses of the administration, executors’ .fees, &c., leaving a residuary estate. Before executing the first codicil she again interviewed Mr.- Gates and inquired whether there was sufficient in both estates to pay all the legacies provided for, saying that she wished to combine the two estates in the gift made under her will, and to include not only that which she owned in her own right, but that over which she had power of appointment under her father’s will. While this evidence -was illegal, it was not harmful, because the sentiment is reflected by the will. The second codicil was made in Portsmouth, New Hampshire. It was drawn by one Emery, a member of the bar of that state, who testified that he had three or four interviews with Mrs. Batterson, and that at the second one she told him that her property, as nearly as she could find out, amounted to $400,000, of which $300,000 was her own and over $100,000 of which she had a power of disposal at her death from her father. She further told him, he says, that other young men were interested in that fund and would like to receive it; that the]' were her nephews and that they had already had money whic-li they had wasted. He says that she- instructed him to draw the codicil so that all of her property, both the property which she had of her own and the trust fund would be included in the disposition of her estate, so that there would be a substantial residue, and particularly for Miss Moberly. He further testified that upon submitting the draft of the codicil for execution, she repeated her statement that the trust fund should not, under any circumstances, go to the people she had mentioned, and after reading it she asked him if what he had drawn included her own property .and the trust fund, which he says he answered in the-.' affirmative. . The document was forwarded to the trustee for safekeeping, and in May following, shortly before her death, Mrs.. Batterson again asked Mr. Gates if she had sufficient estate, both in her own right and that over which she had power of appointment by her father’s will, to provide for the payment of all legacies, and was told that she had, unless she had very materially increased lire legacies, which she said she had not. Mr. Gates got -his information of the standing of both estates from the books of the company, and told her that there were $100,000 and upwards of the Farnum fund and of her own estate about $300,-000, and that there would be a surplus of from $75,000 to $100,-000 after payment of all specific legacies, costs of administration, taxes, &c. Mrs. Batterson also told him that she had made provision for the distribution of her residuary estate and that she was anxious that those she had named as residuary legatees should receive some share of her estate. Now, it may have been Mrs. Batterson’s intention to execute the power, and it may have been her understanding that she had done so, but it is not our privilege to go beyond her testament for demonstrations. Parol evidence of a testators declarations, or of representations made to him, tending to show his meaning and intention or understanding of his will, different from its legal significance and effect, has been uniformly rejected by the courts as incompetent. By law, wills must be in writing, signed and published by the testator in the presence of witnesses; and it would be inconsistent with that law to permit parol proof to be introduced to contradict, add to, or explain their contents. This principle requires an inflexible adherence to it, even if the consequence should be a partial, or even total, failure of the testator’s intention. The formalities so carefully provided would be of ho value; the statute itself would be virtually repealed, if when the written instrument is supposed not to express the clear intention of the testator, the deficiency may be supplied, and its mistakes corrected by extrinsic evidence. No principle connected with the law of wills is more firmly established or more familiar in its application than this; and it seems to have been acted upon by judges, of early and of later times as well, with a cordiality and steadiness, which shows how entirely it coincided with their own views. A firm adherence to the rule is necessary to avoid the consequences of the misapprehension of the witness, and the danger of offering temptation to- perjury. Nevius v. Martin, 30 N. J. Law 465. See, also, Cleveland v. Havens, 13 N. J. Eq. 101; Heater v. Hockenbery, 14 N. J. Eq. 159; Leigh v. Savidge, 14 N. J. Eq. 124; Burnet v. Burnet, 30 N. J. Eq. 595; Griscom v. Evens, 40 N. J. Law 402; Archer v. Morris, 61 N. J. Eq. 152; Zabriskie v. Huyler, 62 N. J. Eq. 697; affirmed, 64 N. J. Eq. 794; Hammel v. Barrett, 79 N. J. Eq. 96; Vrooman v. Virgil, 81 N. J. Eq. 301.

Just a few words as to the testimony of Mr. Emery, the Portsmouth lawyer. If it were competent it would be-risky to rely upon it. When he drew the second codicil he says he knew that Mrs. Batterson had authority to appoint her father’s estate, and that his instructions were to make the appointment. He had before him her will in which the power was clearly exercised, and it, is difficult to understand why, -if the testatrix’s intention in this respect had not changed, the words of appointment were not repeated. His explanation for omitting them was that he found in the American and English Encyclopedia a reference stating what the law of Pennsylvania was relating to the exercise of the powers, and he perhaps regarded the formula of the will as useless surplusage. No reflection upon his veracity is meant, but it is incomprehensible why he should have gambled with his client’s interests and why he should have banked upon his very meagre knowledge of the laws of a foreign state to accomplish that which a few plain words would have expressed. The credibility of this testimony is not under consideration, and it is adverted to only to emphasize the wisdom of the rule which requires its exclusion.

The general residuary bequests, are of “my estate.” This, in 'the absence of some controlling incident, is to be regarded as relating to the testatrix’s own property, and if the general bequests stood alone in the will, the terms used would permit of no explanatory proof that they were meant to include her father’s estate. Griscom v. Evens, supra; 2 Jarm. Wills (5th ed.) 275. Nor can anything be gleaned from the numerous special bequests indicating that the testatrix had the appointment in mind and from which could be inferred that she intended to pass the subject of the power by the residuary clauses, as in Blagge v. Miles, 1 Story 426; White v. Hicks, 33 N. Y. 383; Munson v. Berdan, 35 N. J. Eq. 376.

It remains to be considered whether, upon a comparison of the amount of the estate of the testatrix with the sum total of the money bequests, an intention to exercise the power must necessarily be inferred. Eor this purpose, extrinsic evidence of a testator’s circumstances, at tbe time of’the making of the will, is admissible. Massaker v. Massaker, 13 N. J. Eq. 264; Griscom v. Evens, supra; Burnet v. Burnet, supra; White v. Hicks, supra; Hutton v. Benkard, 92 N. Y. 295. The burden is upon the party claiming under the power, and the proof must be such as to clearly raise the. presumption to the exclusion of all other rational inferences. At the time of the making of the second codicil, and that time is all important, the personal assets of the testatrix exceeded by $25,000 the amount necessary to satisfy all of the legacies. 'This, it is true, is based upon an inventory of the estate made, eleven months afterwards;- but if there was am' material change during that period, it was for the defendants to show. Payment of collateral inheritance tax and. other necessary disbursements reduced the estate to $360,755, and administration expenses will further deplete to the extent of some $20,-000. Counsel, in his claim that there would be a dcficienc,y of about $15,000, and nothing left to pass under the residuary1 bequests, overlooked the fact that the income during the year of administration will equal the costs of "administration. He also failed to include in his calculation the value of the Philadelphia house and did not take into consideration $60,000 remainder-money, all of which will contribute to the residue and eventually pass to the general legatees. This state of affairs manifestly precludes the one and only inference upon which the claim of the defendants in this respect is predicated. And even if it were conceded that a trifling deficiency existed, such an inference would not be imperative and it would be straining judicial limitations to raise from this circumstance alone a positive legal presumption of the execution of the power. The predicament, if it exists, and upon which the defendants rest their principal argument, sprung up in a measure 'post-mortem, and it is reasonable to assume that it was not foreseen. Taking into consideration all of the admissible circumstances surrounding the execution of the second codicil, it certainly cannot be said that Mrs. Batterson contemplated that at the time of her death her large and growing estate would not equal her bounties. The fact that it did, and exceeded them, is proof to the contrary. There is no evidence to show how old she was or her condition of health, and _ although it appears that she died shortly after the execution of the last codicil, there is nothing in the case froin which can be assumed that she anticipated an early demise. In Bingham's Appeal, supra, cited on the briefs of both counsel, Judge Agnew says: "The mere fact that the bequests in a will exceed the testator’s estate cannot draw after it an intention to execute the power. The excess may arise from a mistaken estimate, or from changes in the testator’s property—a mistake common to that numerous class who keep no accounts, or imperfect ones, of their affairs. The evidence of this is the common occurrence of the abatement of legacies. In the present case, Alexander Baring Bingham had a large estate of his own, too large to make the inference clear that he must have intended to execute the power contained in the will of William Bingham. * * * It is possible, but not certain, that he intended an execution of the power. It must not be forgotten, when handling such a question, that we are dealing with the property of another, and not with that of the donee of the power. In the donee it is but a trust, and those interested in the estate of William Bingham bare a right to know that the will of their testator has been actually executed as be intended by the donee of his power. Hence, they are entitled to certainties, not more conjectures or possibilities.” And in Cotting v. De Sartiges, supra, it is said: "The fact that at the time of his (the testator’s) death his estate was somewhat' less than his bequests is not significant; for, evidently, be was not a close financier,'and gave little lieed to the depreciation of his estate. The 'deficiency, however, is not so marked as to raise a presumption, in favor of the execution of the power, even if we could properly look to that fact for that purpose.”

Kent, in his Commentaries, volume 4, page 335, lays down the rale, which may be found in almost all of the cases on this topic, that

“if the will be made without any reference to the power, it operates as an appointment under the power, provided it cannot have operation without the power. The intent must be so clear that no other reasonable intent can be imputed to the will; and if the will does not refer to a power, or the subject of it, and if the words of the will may be satisfied without supposing an intention to execute the power, then, unless the intent to execute the power be clearly expressed, it is no execution of it.”

A prominent index of intention is to be found in tbe fact that the testatrix, by her codicil, deliberately revoked the execution of the power which she had previously on three different occasions exercised. This naturally leaves the impression that her own estate, being sufficient to meet the demands of her will, she intended to withhold the appointment and to allow the trust fund to devolve under her father’s will. The correctness of this deduction, of course, is not essential to this decision, for, in whatever aspect the act be viewed, it is at least to be regarded as neutralizing any inference in opposition. A similar situation was approached and treated' from another, and perhaps the correct, angle, in Wilkins v. Pryer, 55 L. J. Ch. 598. There the testatrix exercised a power of appointment, and in subsequent wills, without referring to the appointed property by a general clause, revoked all.former wills and testamentary disposition which was held to revoke the appointment. In dealing with the subject, tbe court said: “I should have thought that it was impossible for the court to come to any other conclusion, because it would have to be arrived at upon the merest possible speculation; and how, as I have asked more than once during the argument, can the court know that it was not the deliberate intention of the testatrix to revoke the testamentary appointment of 1866 and to allow the estate to devolve as in default of appointment under the settlement of 1834? If I cannot tell, it is obvious that if I were to hold that the words which prima facie are quite sufficient to revoke the testamentary appointment did not have that operation, I could only arrive at that result by speculating as to what was the intention of the testatrix, and such a speculation might lead the court into complete error. It'may have been the intention of the testatrix to allow the property to devolve under the trust in default of appointment, and if I were to hold that the words of revocation, which may have been designedly inserted for that very purpose, are not to have any operation, I might be defeating instead of carrying out her intention.”

My conclusion, from the foregoing observations, is that the power of appointment was not exercised, and that the trust fund falls into -the residue of the estate of Paul Earnum. A decree will be advised directing the trustee to account and to pay over the property to the complainants.


author: Backes, Y. 0.

text:
    Thomas W. DuBois v. Maria Waterman et al.
    [Submitted June 20th, 1916.
    Decided July 18th, 1916.]
    1. One in peaceable possession may maintain an action to quiet title to land.
    2. The recitals of an attestation clause of a will that the testator signed, sealed, declared and published it in the presence of two attesting witnesses, raises the presumption that all of these acts were done, as the signing was done, at one and the same time.
    3. A duly-exemplified copy of a will proved in another state is admissible in evidence to establish the title to land.
    4. Under the provisions of the will in question—Held, that the testator’s wife might, if necessary for her maintenance, convey a fee in lands in' which she was given a life estate.
    5. Under the evidence in this ease, the conveyance of the homestead in fee cannot be upheld.
    On bill, &c.

      Mr. Austin H. Sivachhamer, for the complainant.

      Messrs. French & Richards,' tov the defendants.
   Backes, Y. 0.

This is a bill to quiet title to land. The property formerly belonged to Thomas DuBois, who died leaving a last will and testament, admitted to probate in Gloucester county in 1897, which, after directing payment of debts and funeral expenses, proceeds as follows:

“I give, devise and bequeath to my beloved wife Elizabeth Amanda DuBois, the free hse (of the Principal if necessary for her maintenance) and improvements Rents profits and income of all the rest, residue and remainder of all my Estate, real personal and mixed, wherever or however the Same is or may be Situated, and including therewith the free use and improvements, rents profits and income of Such other Estate I may hereafter acquire of which I Shall die Seized possessed of and entitled to at the time of my decease, for and during the term of her Natural life. To have and to hold the Same with all the rights and privilege thereof to her the Said Elizabeth Amanda DuBois for and during the term of her natural life.”

Upon tlie decease of the widow, the homestead, the land in question, situate in Franklinville, Gloucester count}", was devised to a son Alton Alonzo DuBois, who died, leaving a will de- ' vising his estate to his widow, the defendant, now Maria 'Waterman. The testator, Thomas DuBois, had two other sons, William II. and Charles E., and, subject to the life estate of his widow, he devised to William II. absolutely a half-acre lot with the buildings thereon, situate in Franklinville; and to Charles E. a house and lot in the same village for life, with the remainder to the four children of William EL The rest and remainder of his estate he gave to his three sons in equal shares, except as to Charles E., who was given an estate for life, with remainder over to two sons of William EL, one of whom is the complainant. The personal property was insufficient to pay the testator’s debts, and all of the lands not specifically devised, as above indicated, were sold to defray them. William EL and Charles E. DuBois are dead, and whatever of the estate remains, except the homestead, now in question, is owned by the family of William H. DuBois, who died intestate. Three or four years ago the life tenant mortgaged the homestead to -her son William EL for $2,-100, and by deed dated November 20th, 1915, she conveyed the equity of redemption to the complainant. The complainant is in peaceable possession, and his right to invoke the’jurisdiction of this court to quiet his title cannot be denied. Ward v. Tallman, 65 N. J. Eq. 310; Fittichauer v. Metropolitan Fire Proof ing Co., 70 N. J. Eq. 429. His right to relief, however, depends upon the soundness of his claim that he owns an estate in fee-simple; and unless this estate is established the bill must be dismissed. His title in fee hinges upon whether the life tenant had the power of sale, and the further inquiry whether the deed to the complainant was executed in the exercise of that power, thereby defeating the devise over. Both must be resolved in favor of the complainant before he can succeed as against the remainderman, Mrs. Waterman.

A preliminary question is raised as to Mrs.. Waterman’s title to the remainder. Her late husband died in the State of Rhode Island, where his will was admitted to probate, a duly-exemplified copy of which, and of the decree of probate, were filed and recorded in the office of the surrogate of Gloucester county (P. L. 1915 p. 605) and offered in evidence. ' The will was signed by the testator and attested by two witnesses. The attestation clause roads:

• “Signed, sealed, declared and published by the said Alton A. DuBois as and for his last will and testament in presence of us, who, at his request, and in his presence, and in presence of each other, have subscribed our names as witnesses hereto.”

The points made are that it does not disclose that the signature of the testator was made or acknowledged by him in the presence of two witnesses who were present at the same time, and' further, that it does not appear that the testator declared the paper to be his last will in the presence of those witnesses present at the same time. The clause certifies that the testator signed the document in the presence of the two witnesses, and, as it bears only one signature of his, the inference is inevitable that both were then present. The collocation, conjunctively, of "signed, sealed, declared and published,” raises the presumption that all of these acts were done as the one of necessity must have been. An attestation clause, substantially like the present • one, was held to be sufficient evidence prima facie of the execution of a will in compliance with the requirements of our statutes. Allaire v. Allaire, 37 N. J. Law 312; affirmed, 39 N. J. Law 113. The exemplified copy was properly admitted in evidence and shows title in the defendant.

Tlie provision of the will above quoted gives an interest for life to the widow in all of the estate of the testator, with the to use the principal, if necessary, for her maintenance. That implies a power of sale. It. is suggested that the term “principal” is inappropriate to real estate, and that the testator meant the principal of his personal property; but this is refuted by the fact that there was no, or little of, personal property to which it possibly could apply. Inartificially as the will was drawn, it plainly indicates that the testator’s wife was the first and foremost object of his solicitude. Whatever he left he intended should be at her command and disposal for her subsistence. To place any other construction upon the interpolation' of “the principal, if necessary, for her maintenance” would be to ignore and disregard the testator’s most sacred wish and desire.

This brings us, then, to the main question debated on the argument and in the briefs of counsel, Was the conveyance of the homestead to the complainant a bona fide exercise of the power of sale? At the time the deed was executed, the life tenant was ninety-two years of age. The rent from the homestead brought in very little, and a meagre income was derived from the other properties—three tenements—which, under the will, will eventually go to the complainant and his brothers and sisters. All were in a dilapidated condition. The complainant had charge of these properties, attending their letting and the collection of the rents. Outlays of money in repairing the four houses, made by him shortly before the deed was delivered, brought his grandmother’s account in debt to him somewhat in excess of $100. He says he took the deed in payment of this debt, but the circumstances do not bear him out. The property was worth' $2,200, according to his estimate, and was, as he understood, subject to a mortgage of $2,100, with three years’ accumulated interest, held by his father’s estate. The value of the life estate, he states, was not taken into consideration by him, and his explanation for taking the deed is that when his expenditures had grown in amount he began to want something, and that his grandmother offered him the homestead for the debts he had paid to keep her; that it was the only thing that was offered him for security; that that was all she had to pay with; and that he took it in about the same way that a mortgage would be given to a person to whom a debt was owing.

It is not necessary for the purpose of a decision to consider whether the life tenant had authority under the will to give a deed in discharge of a past due indebtedness incurred for her maintenance, or whether expenditures for repairs to the houses, inasmuch as they conserved the source of her income, were for her maintenance, because it is apparent that at most the deed was taken as security only and in effect is a mortgage, defeasible upon payment of whatever may be owing; and I even hesitate to give the transaction that dignity. If the complainant actually wanted to be secured by his grandmother, and she intended that he should be, it is hardly likely that they would have decided upon the homestead, in which there was absolutely no value, because overburdened by mortgage, as the complainant understood it. A deed or mortgage upon the three tenement-houses would have been a better assurance. The negotiation betweén the two has none of the indicia of a sale. Nothing was sold, because there was nothing to purchase, and if we assume, as we must, that both parties understood the property to be mortgaged beyond its value, then the execution of the deed was a shallow form transmitting an empty title and in no sense a legitimate use of the power of sale. This power was intended by the testator to be exercised by his widow, within limitations, only when it would enure to her advantage, and she cannot be permitted to defeat the devise over by a mere simulation.

There is another aspect in which the case is to be viewed. The estate of the complainant's father, as we- have seen, holds the mortgage on the homestead which, it is asserted, was given for maintaining the life tenant. Why the mortgage was given on the homestead alone, and the reason for not including the other properties, is too obvious for comment. The deed to the complainant was a shift, and to uphold the conveyance of the barren legal title as an execution of the power of sale, would bar the defendant from contesting the validity of the mortgage, and foreclose her from a judicial inquiry into the amount, if any, of the debt for which it is claimed her estate is charged.

The complainant, if anything, is an equitable mortgagee, and not the owner of the fee in the land in question. The title upon which he rests his right to a decree is not made out and the bill will be dismissed, with costs.


author: Backes, Y. G.

text:
    Charles M. McDermott, receiver, v. William Woodhouse, Jr., et al.
    [Submitted October 3d, 1916.
    Decided October 17th, 1916.]
    1. On motion to strike out a hill for want of jurisdiction, the allegations of the bill must be taken as true.
    2. In a case of actual fraud, as shown by the bill, the contract between the corporation and its promoters could not shield the stockholders from responding to creditors.
    3. Unpaid stock subscriptions are collectible by a receiver after insolvency, and are not dependent on adjustment of equities between stockholders.
    4. A judgment in personam can be rendered only on personal service of a defendant, therefore an action to recover unpaid stock subscriptions of a resident of New Jersey cannot he brought in New York even if that state is the corporation’s domicile.
    On motion to strike out bill.

      Mr. James J. McQoogan, for the complainant.

      Messrs. Yredenburgh, Wall & Carey, for the defendants.
   Backes, Y. G.

This-is a motion to strike out a bill for want of jurisdiction. The object of the bill, is to recover unpaid stock subscriptions of an insolvent foreign corporation by a receiver appointed by this court. The objection to the bill is that such proceedings can onty be taken, in tlie domicile of tlie corporation and by a receiver there appointed.

The bill discloses this state of facts: The Lakewood City Development Company, a New York corporation, was declared insolvent by this court, and the complainant was appointed receiver. The company was formed under the laws of the State of New York with a capital stock of $150,000, divided into one thousand five hundred shares of the par value of $100 each, for the purpose of conducting a general real estate business, and particularly to acquire and subdivide into building lots about six hundred acres of unimproved and barren land near Lakehurst, Ocean county, in this state. One of its promoters sold this land to the -company for $184,500, receiving in consideration its promissory note for $35,-000 and capital stock of the company amounting to $149,500. Five hundred of these shares were subsequently returned to the treasury and the remaining shares were divided between and are held by the defendants. The land conveyed was not worth more than $4,500, although the board of directors of the company appraised it at a valuation of $184,500. Claims to the amount of $54,573.48 have been presented to the receiver, of which $27,586.49 have been allowed, and the balance is disputed. The receiver has collected $363.19, and there are no other available assets except the unpaid stock subscriptions. The pertinent statutes of the State of New York (which are set forth in full in the bill) provide that the shareholders in such a corporation, shall be liable to the creditors thereof to an amount equal to the amount unpaid on the stock held by such shareholders for the debts of the corporation contracted while such stock was held by said shareholders; that capital stock may be issued for property purchased by such corporation, and in the absence of fraud in the transaction, the judgment of the board of directors as to the value of the property purchased shall be conclusive, and further, that when a receiver of the assets of such a corporation has been appointed, all unpaid subscriptions to the capital stock of such corporation be paid to such receiver and at such times and in such installments as he or the court appointing him shall direct. Upon this motion the allegations of the bill must be taken as true, and upon that assumption it is manifest that the directors of the company perpetrated an actual fraud and that their contract with the promoters to purchase the land with stock at so grossly inflated figures cannot shield the stockholders from responding to the creditors to the amount of their holdings, sufficient to meet the debts of the company. Easton National Bank v. American Brick, &c., Co., 70 N. J. Eq. 722; Holcombe v. Trenton White City Co., 80 N. J. Eq. 122. In a going concern stock subscriptions are collectible by the company only and in the manner provided by statute or the by-laws of the corporation. Hpon insolvency the incurred obligations pass to the receiver as a fund for the benefit of creditors. The liability is contractual, based upon an express promise and may be enforced by the company or the receiver in any court of common law having jurisdiction of the person of the debtor. Lewisohn v. Stoddard, 78 Conn. 575; Flash v. Connecticut, 109 U. S. 371; Whitman v. Oxford National Bank, 176 U. S. 559; Stoddard v. Lum, 159 N. Y. 265; Howarth v. Angle, 162 N. Y. 179. There is. a line of authorities holding that when the liability is purely statutory, and the measures to enforce it are prescribed, the remedy provided is exclusive ; but this case does not come within the class. Here, the liability is founded in common law principles, voluntarily incurred under and fixed by a statutory scheme for the formation of corporations, and may be recovered like any other debt in any court of competent jurisdiction. Hpon the appointment of the complainant as receiver, these choses in action in this state passed to him as completely as the more tangible assets located here, and his right to sue for the unpaid stock is in nowise dependent upon an adjustment of the equities between the stockholders by the court of the domicile, as claimed by the moving defendant. The equities of the parties will be ascertained upon the hearing and fixed by the final decree—a matter with which we have no concern upon this motion, which presents the single question whether this action will lie.

It may be added, as respects the moving defendant, who is a resident of this state, that an action against him in New York would be of no avail. A judgment in personam can only be had upon personal service. Pennoyer v. Neff, 95 U. S. 714.

The motion will be denied, with costs.


author: Backes, V. C.

text:
    Louis D. Gregory v. Frederick N. Lewis et al. Knight & De Micco, Incorporated, a corporation of New York, v. Frederick N. Lewis et al.
    [Submitted October 31st, 1916.
    Decided November 9th, 1916.]
    1. A claimant of a mechanics’ lien against a municipality must substantially comply with the requirements of the Mechanics’ Lien act.
    2. Verification of a lien claim by the secretary of the claimant to the best of his knowledge, information and belief, is sufficiently specific.
    3. A claim for more than is actually due will not defeat the lien unless it is knowingly and consciously excessive and untrue.
    4. Failure to give statutory notice to the city cannot be raised on a motion to dismiss a bill.
    On bill, &c.

      Messrs. Hartshorne, Insley & Lealce, for the complainants.

      Messrs. Church & Harrison, for the defendants.
   Backes, V. C.

The object of these bills is to enforce municipal liens under the act entitled "An act to secure the payment of laborers, mechanics, merchants, traders and persons employed upon or furnishing materials toward the performing of any work in public improvements in: cities, towms, .townships and other municipalities in this state.” Comp. Stat. p. 3315. Motion is now made by the defendant Lewis to dismiss them because they show on their face that the complainants are not entitled to liens. The bills are identical, except as to the names of the lienors and the amounts claimed. The facts disclosed by, or reasonably to be inferred from, the pleadings, are that the city of East Orange entered into a contract with the defendant Frederick N. Lewis for the laying of water mains in the city of East Orange, according to plans and specifications annexed .to the contract in the possession of the city. The terms of the contract are not given. The complainant, Knight & De Mieeo, Inc., contracted with Lewis for the laying of the water mains under division “A” of the contract, and Gregory for the laying of the mains under divisions “B” and “C.” The contracts are in the shape of letter communications which are annexed to the bills. Knight & De Mieco, Inc.’s proposal to Lewis, which was accepted, was to

“furnish all labor and materials to complete section ‘A’ of your contract with the city of East Orange to lay water mains, bids for which were opened on August 26th, 1915, in accordance with plans and specifications for ninety-four per cent, of the unit prices bid by you.”

Gregory’s proposition was

“to furnish all labor and materials necessary to complete divisions B and O of your contract with the city of East Orange, New Jersey, for laying water mains, all in accordance with the plans and specifications for the unit prices bid by you and accepted by the city, and named in yonr contract.”

Gregory was to receive all of the payments to be made by the city for performing the contract under divisions B and C, and out of the final payment was to pay Lewis $500. The complainants allege that they performed their respective contracts, and that there is due to Knight & De Micco, Inc., $6,937.62, and to Gregory $10,236.68, as per itemized statements annexed to the bills, after allowing all credits and set-offs; that the labor and materials were exclusively used for the laying of said water pipes in the city of East Orange, and that the amounts so due became due and payable on or about the 2-lth day of December, 1915'. On May 4th, 1916, before the work was accepted by the city of East Orange, the complainants filed their notices of claim with the proper officers of the city of East Orange, pursuant to section 2 of the Municipal Lien act, copies of which notices are annexed to the bills and made a part thereof, and at the same time each filed a bond with the treasurer of the city, as required by the statute. The amount of money in the hands of the city is not stated, but it is alleged to be a large sum.

The bills are attacked on the grounds that the notices of lien (1) fail to state the terms, time given and conditions of his contract; (2) were not verified; (3) were for sums grossly in excess of the amount due and owing; and also (4) that notices of the suit were not served upon the city. In order to entitle the complainants to the benefit of the security afforded by the statute, there must be a substantial compliance with its requirements. Somers Brick Co. v. Souder, 70 N. J. Eq. 388.

(1) As to the first point: The notices are sufficient. Copies of the correspondence between the complainants and Lewis are incorporated in and made a part of the notices. The proposals and acceptances disclose that the complainants agreed to execute the respective parts of the contract which Lewis had with the city, upon the same terms, time given and conditions as stipulated by Lewis—in one instance upon a percentage basis, and in the other upon the payment of a lump sum. A reference to the city’s contract with Lewis, and notice to it that the complainants agreed with Lewis to perform it upon the basis just stated, was the information to which the city was entitled by the statute. Of its contract with Lewis, of course the city was fully informed, and to incorporate it in the notices of lien would have been useless and was not required. National Fire Proofing Co. v. Daly, 76 N. J. Eq. 35.

(2) The Knight & De Miceo, Inc.’s notice was verified by its secretary and the other by Gregory himself. The verifications are appended to the notices in which the affiants aver "that the facts and circumstances, matters and things set forth' in the foregoing claim are true to the best of his knowledge,, information and belief.” The objection to the verification is-, that it should have been as specific of facts as the notice itself,, and, in support. I am referred to that part of the opinion of Camden Iron Works v. Camden, 64 N. J. Eq. 723, in which tlie court of errors and appeals, in discussing section 2 of the act, said that “the language of our statute in the case before us requires that the claim shall be verified, stating the amount claimed; that there shall be a deduction of all just credits and offsets, and an affirmation that the labor was performed or the materials were furnished and ‘were actually performed or used in the execution or completion of the said contract with said city.’ This statute clearly requires an honest and truthful statement of the claim for labor performed or material furnished in the execution of the contract, and, in order to make the accuracy of the statement quite essential, the statute provides that the verification shall be that the work was actually performed or the material actually used in the execution or completion of the contract.” I have examined the record of that case (E. & A. Records, vol. 289) and find that the verifications to the claims were general, as in the present cases. In the prefatory statement of the opinion, the learned judge, who spoke for the court, stated that “both claims were duly verified as required by the statute,” and as I read and understand his language above quoted, he simply emphasized the necessity of the notices containing a truthful statement of the facts, since they were required to be sworn to by the claimants. •

(3) The next objection is more troublesome. Each of the complainants included in their notice a large sum for consequential damages arising out of a breach of their respective contracts with Lewis. To Knight & De Micco, Inc., there'is due, under the contract, $1,781.60, to which it added $5,156.02 for damages; and to Gregory there is owing $1,916.25, to which he added $8,320.43 for damages. The statute gives a lien only for labor and materials actually performed or furnished towards the performance or completion of the contract. The lien does not extend to damages for a breach of the contract. Rock. Mech. Liens § 25; Dennistoun v. McAllister, 4 E. D. Smith 729; Morgan v. Taylor, 5 N. Y. Supp. 920. The question, therefore, is whether by the inclusion „of the items of unliquidated damages the complainants have forfeited their liens, and the answer is to be found in the motives actuating them in overstating their claim, for if this was done in good faith, they ought not to be penalized and suffered to lose the benefit of the statute to the amount of their just dues. Our act was copied from the New York statute, and the court of appeals of that state has adopted the rule that statements of fact contained in the notice of the claim which are shown to be untrue, will not forfeit the lien or render the notice void or ineffectual, unless the untruthful statements were willfully or intentionally false in some important or material respect. Aeschlimann v. Presbyterian Hospital, 165 N. Y. 296; Ringle v. Wallis Iron Works, 149 N. Y. 439; see, also, New Jersey Steel and Iron Co. v. Robinson, 85 App. Div. 512; General Fireproofing Co. v. Keepsdry Construction Co., 158 N. Y. Supp. 567. In Camden Iron Works v. Camden, supra, the’ court of errors and appeals varied the phraseology and held it to be clear, upon airthoxity, “that the rule applicable to the right of the claimant in this case to a lien upon the funds of the city of Camden due to Pfeiffer, the contractor, is that if the account as filed is not the amount of the demand which is truly and substantially due to the claimant, after deducting all just credits and set-offs, but is knowingly and consciously excessive and untrue, it will not be enforced as a lien.” In that case, the complainant wittingly inserted in its claim two items amounting to $11,714.70 fox “pipe made and held subject to order,” and the court, in commenting upon the claimant’s conduct in'preferring its claim, uses this significant language: “It would be difficult to examine the facts in this case and reach any conclusion which would relieve the claimant' from the imputation of filing with the city of Camden an inaccurate, untrue, excessive and oppressive claim under the terms of its contract with Pfeiffer. It is self-evident that the claimant charged, in excess of the amount fixed by the contract -upon the straight pipes shipped under it to Pfeiffer, $3,7-46.56. It is equally clear that, under the plain letter of the same contract, the whole charge of $11,714.70, in- the claim which makes up the $32,228.45, was absolutely without any basis of right. A careful examination of the testimony fails to disclose a single statement in the evidence of the president of the Camden Iron Works, or by any other witness called on its part, in explanation or in justification of either the excessive charge of $3,746.56 or the wholly improper inclusion of the $11,714.70 in the claim. The letter of Pfeiffer to the Camden Iron Works of February 10th, 1897, shows that the impropriety and wholly baseless character of such a claim was brought to the attention of the claimant, in great detail,, over four months before the claimant filed with the clerk of the city of Camden its inaccurate, untrue, excessive and oppressive claim. It is an irresistible conclusion that it filed this lien notice against both light and knowledge. The letters in evidence, the testimony of the president of the company, the whole course of conduct of the claimant company in relation to garnisheeing other funds of Pfeiffer in a trust company in Philadelphia after, or at the time' of, the filing of its lien notices with the city of Camden, is so flagrantly unfair, unjust and oppressive as to- give the irresistible inference that the act of the claimant company, in filing its lien for an untrue and excessive amount, was knowingly and consciously done. It is not even pretended that it had legal advice that its lien notice, as filed, contained claims which it might justly make under its contract with Pfeiffer.”

An analysis of these observations applied to the rule adopted in that case, makes it plain that in order to justify a dismissal of the bills, it must , appear that the complainants consciously inserted in their notices the items for unliquidated damages, knowing them to be false, as claims under the statute. In the notices complainants claim a lien upon all the moneys due, or to grow due, to Lewis from the city, to the amount of the gross sums. These they allege are due and owing, after deducting all just credits and set-offs, and further, that the work was actually performed and the materials were actually furnished to Lewis, and that the same were actually used in the completion of the contract with the city. -The notices, however, contain an explanation, somewhat obscure, it is, true, of the claim for unliquidated damages. From it may be gathered that the city was to furnish the water mains, or some of them, to Lewis, and that Lewis in turn was to supply them to the complainants within a reasonable time, in order to properly prosecute the contract and to complete it before freezing time; that,Lewis failed in this, and due to his neglect the complainants kept skilled men on the job awaiting deliveries, and were obliged to use this labor for inferior work, and that they also incurred additional items of expenses by reason of the frozen ground and snow storms. Annexed to and made a part of the claim is a schedule showing the sums actually earned under the contract and the amounts of money laid o'ut and expended by reason of the breach of the contract. The bills also give the same explanation.

Now, although the complainants were not entitled to liens for the consequential damages, and they ought not to have been included in the notices, it does not follow that the demands were knowingly and consciously untrue, i. e., false. That the complainants were subjected to the extra outlay by reason of the breach of the contract by Lewis, and that the expenses were actually incurred in' completing the contract, is admitted. The inclusion of the offending items may have been the result of a misconception of the law, or due to faulty advice of counsel. If the matter is reduced to inference, that of innocence must prevail. The fact that the notices frankly assert that part of the claim, and how much was made up of damages, refutes the charge of deception. The “unfair, unjust and oppressive” conduct which characterized the Camden Case is not to be attributed to them. Whatever may have been the motive, the complainants are entitled to their day in court to explain. On the face of the pleadings it does not appear that they came into court with unclean hands, and their claims should not be summarily rejected on a motion of this kind.

(4) The fourth section of the act provides that suit to enforce the claim must be commenced within ninety days, notice whereof must be given to the municipality. The bills were filed August 2d, 1916, and it is stated by counsel that the notices were served the day before. If this be true, it cannot be taken notice of on this motion, which is in the nature of a demurrer to the bills. Notice of suit may be given 'contemporaneously or subsequent to the commencement of the suit, and, manifestly, it need not and cannot be pleaded. A failure must be given by way of defence.

The motion is denied, with costs.


author: Backes, Y. C.

text:
    Mitchell B. Perkins et al. v. Public Service Railway Company et al.
    [Decided December 4th, 1916.]
    1. A contract by a railroad company to carry the complainants for life over its railroad, in consideration of a grant of land for a right of way, violates the Utilities act of 1911, and will not be specifically enforced.
    .2. After foreclosure and sale of the real estate of a railroad, such an agreement is not binding upon the new owner of the land.
    On bill, &c.

      Mr. Linton Salterthwaite and Mr. Norman Grey, for tbe-complainants.

      Mr. Frank Bergen and Mr. E. Ambler Armstrong, for the defendants.
   Backes, Y. C.

The object of this bill is to compel the Publie Service Railway Company to carry the complainants over its railroad between Trenton and Riverton for life, free of charge, in compliance with a contract to that effect made by the lessor of the railway company, in consideration of grants of land for the route of the railroad. The-history of the case, as shown by the pleadings and as represented by counsel in their oral and written arguments, is briefly this: In 1900, the complainant Mitchell B. Perkins and his associates promoted the Camden and Trenton Railway Company and built and operated its line of railway between Camden and Trenton. The route extended across lands of Perkins, in Beverly towiiship, Burlington county, for which he gave a right of way in consideration, of the company agreeing to carry him and the members of his family over the line for life. The agreement was reduced to writing and passes were issued and honored until the company became bankrupt, when its property and franchises were sold under a mortgage foreclosure in 1910. The purchaser conveyed to a newly-formed company, which company leased to the Eiverside Traction Company. The traction company operated the road until 1912, when it leased the line to the Public Service Eailway Company for a term of nine hundred and ninety-nine years. The traction company declined to recognize the passes, whereupon the complainants filed their bill in this court to specifically enforce the contract made with the Camden company. A compromise was effected, resulting in an agreement, which the present bill seeks to enforce, dated December 30th, 1911, wherein Perkins agreed to discontinue the suit and to execute to the traction company a deed for the right of way across his land which it was then using and enjoying, and also to grant an additional right of way adjoining, eight feet in width and some one thousand two hundred feet in length, in consideration of a pass to be issued to Edna Perkins, rvho had then recently come into the family. On its part the traction company agreed to honor the passes for rights of transportation issued by the Camden and Trenton Eailway Company to Perkins, his wife and his five children, and to endorse thereon the words “This pass will be honored by Eiverside Traction Company between Eiverton and Trenton;” and to issue Edna Perkins a pass or ticket evidencing her right to transportation for life over the lines of the company from Trenton to Eiverside. It was also stipulated that the passes were granted only in so far as the traction company had the legal right to do so, and further, that the grants of rights of way were upon condition that in case the complainants should be deprived of the rights of transportation the grants should immediately cease and be void, and the grantor should have the right to resume possession of the premises within sixty days. The agreement bound the successors and assigns of the traction company. The Public Service Eailway Company honored the passes until March 5th, 1913, when it refused further free transportation on the ground that such transportation was in violation of the Utilities act of April 21st, 1911.' P. L. 1911 p. Slh- Counsel for the public service frankly stated in open court that the company was ready and willing to perform the contract of its lessor, the traction company, if it were lawful to do so; and in his argument defended the action of his client squarely on the ground that the contract which waj made after the Utilities act went into effect was in violation of that statute. Such contracts have npt been regarded as infringing the principles of the common law relating to common carriers, and have been upheld by the courts. Curry v. Railway Company, 58 Kan. 6; Grimes v. Minn., Lyndale and Minn. Railway Co., 37 Minn. 66; Erie and Pittsburgh Railroad v. Douthet, 88 Pa. 243; Oklahoma City v. Oklahoma Railway Co., 93 Pac. Rep. 48; Dempsey v. New York Central and Hudson River Railroad Co., 146 N. Y. 290; Mottley v. Louisville and N. R. Co., 150 Fed. Rep. 406; reversed, 211 U. S. 149, for want of jurisdiction; Public Service Electric Co. v. Board of Public Utility Commissioners et al., 93 Atl. Rep. 707.

These principles of the common law applicable to common carriers demanded nothing more than that the carrier should provide, reasonably, adequate facilities for all who applied for transportation in the order of application, and that the charges therefor should be reasonable. So long as the charges were reasonable, the passenger had no cause for complaint, even though others were carried at a lesser rate or free. The relative rights of the individual were apparently not considered, and, correspondingly, a carrier who bartered his transportation for land or other considerations obviously could not be tolerated to escape the performance on the grounds of failure of a public duty to charge all reasonably equal. To remedy the evil incursions upon the public’s right to travel for a compensation equitable to all—to level the obligations and rights of common carriers in their relation to the public—the state intervened by the Utilities act. Section 18 o'f the statute provides that “no public utility as herein defined shall (a) make, impose or exact any unjust or unreasonable, unjustly discriminatory or unduly preferential * * * rate,” &c.; or (d) “make or give, directly or indirectly, any undue or unreasonable preference or advantage to any person or corporation, or to any locality.” Later sections make it a misdemeanor for any public utilities corporation or any other persons to violate the provisions of the act, either by acts, of commission or of omission. The defendants are apprehensive that the contract sought to be enforced violates the subdivisions of section 18, as quoted, and it will be noted that doubt existed in the minds of the contracting parties at the time it was made, because it'is therein stipulated that the passes were granted only in so far as the traction company had the legal right to do so.

It is true that the limitations in the act are concise declarations of common law principles, but the contention of the complainants that they have no wider significance or effect than they had at common law, is not admissible. It must be a matter of common observation that the legislature in defining these principles in an act in which the government assumed the regulation of the public agencies of the state, and in this the delegation of power to the utility commission to command an equality of facilities and accommodations and adjust and fix rates equitable to the great body Of the traveling public and the imposition of severe penalties for violation, emphasized a policy unrecognized at common law. Then they meant that the charge must be reasonable to the individual passenger and now they signify that they mtist be reasonable and also not unreasonable or preferential, talcing into consideration the rights, as to charge, of all patrons collectively.

Our Utilities act is not in phraseology as precise and exacting as the Federal Interstate Commerce act, which prohibits the carrying of persons or property for fare “greater or loss or different,” but its purpose and spirit of equality is not dissimilar and in principle forbids any difference in charge which is not based upon difference in service, and viewed in this light the contract under consideration, which grants to the complainants the privilege of riding over the line of the defendant an indefinite time and unlimited mileage for a fixed consideration, viz., the value of the land, is manifestly an unreasonable preference and advantage, and within the inhibition of the Public Utilities act. It was contended by the complainants that because there was no proof in the case showing that the value of, the land was not equal to the services to be rendered, it could not be held that the preference and advantage were “undue or unreasonable.” •Tt seems to me that the contract itself demonstrates this. A simple illustration will suffice: Suppose Perkins had bargained with the defendant to carry him and his family ad libitum over its route for life for $1,000. Could such a contract be successfully defended in the face of the statute, and that is really what we have here. To sustain the contract would open the doors wide to the very evils the statute was intended to suppress and make impossible the execution of the fund-ions of the utilities commission to regulate and fix ratos. The commission and the public would again be at the mercy of unscrupulous corporations and a restoration of -old-time methods could be looked for when, for services or property or political pull, unrestricted transportation was given.

The contract made in 1900 bjr the complainants with the Camden and Trenton Railway Company plays no part in this litigation, save as a matter of history,' and because it may have formed a part of the consideration for the contract of 1911. The complainants lost all right under the earlier contract when the Camden and Trenton Railway Company was sold out under foreclosure proceedings in 1910. The bill is not maintainable upon the theory that the contract relates to a time anterior to the enactment of the public utilities statute, which was declared in Public Service Electric Co. v. Board of Public Utilities Commissioners, supra, to be prospective.

Thebill will be disniissed, with costs.


author: Griffin, Y. C.

text:
    In re application for appointment of a guardian for Hugh McLaughlin, an alleged lunatic.
    [Submitted February 5th, 1917.
    Decided February 21st, 1917.]
    The act of March 3d, 1915 (P. L. 1915 oh. 28 p. 51), in so far as it gives authority to the chancellor in a summary manner to inquire into and determine the question of the lunacy or insanity of a person, without the intervention of a jury, and to appoint a guardian, violates article 1, paragraph 7 of the constitution, and is null and void.

      On petition, &e.

      Mr. George L. Record, for the petitioner.

      Messrs. Treacy & Milton, for Hugh McLaughlin.
   Griffin, Y. C.

This application is made by the wife of the alleged lunatic, setting forth that on July 2d, 1915, he was committed to the New Jersey State Hospital for the Insane; that no inquisition of lunacy has been issued to determine the question of his lunacy, and no guardian has been appointed by the orphans court. The prayer is that she may be appointed his guardian in accordance with the statute, and for other relief.

On filing the petition an order to show cause was granted. On its return the alleged lunatic appeared and objected to the jurisdiction of the chancellor on the ground that the proceeding was in violation of article 1, paragraph 7 of the constitution of this state which went into effect September 2d, 1844, which provides that the right of trial by jury shall remain inviolate.

At common law it was the practice to inquire whether a man was an idiot or not by the writ de idiota inquvrendo, in which proceeding there was the trial by jury. The method of proving a man non compos was quite the same. 1 Bl. Com. 303; De Hart v. Condit, 51 N. J. Eq. 611; Hughes v. Jones, 116 N. Y. 67; 22 N. E. Rep. 446.

By the act of November 21st, 1794 (Pat. L. 1703-1799 p. IBS), it was provided that “the chancellor for the time being should have the care and provide for the safekeeping of all lunatics and of their lands and tenements, goods and chattels,” and also to provide for the maintenance of the lunatic and his household.

This act is silent on the method of determining the lunacy; but, as already shown, it was determined by a jury at the common law.

. On March 1st, 1804 (Bloomf. L. 1800-1811 p. 117), a supplement to the last-mentioned act was passed, providing “that all cases of idiocy or lunacy shall be determined by an inquest on a commission of idiocy or lunacy issued by the chancellor, aild the proceedings thereon shall be conducted in the manner heretofore practiced.”

A revision of the act respecting idiots and lunatics was passed February 28th, 1820. Elm. Dig. 1838 p. 237. By its first section it re-enacted the last-mentioned section with slight changes. (one being that the inquest shall issue out of the court of chancery), and, as new legislation, provided that the chancellor should, in cases of idiocy or lunacy found, cause to be transmitted to the orphans court of the county where the idiot or lunatic resided a certified copy of the proceedings, and such court, on filing such transcript, was required to appoint a guardian.

Section 1 of the Revision of 1820, in so far as the matter under consideration is affected, was continued in substantially the same form in the Revision approved April 16th, 1846 (Nix. Dig. 1709-1855 p. 440), Revision approved March 27th, 1874 (Rev. 1877 ¶. 601), and may be found in 2 Comp. Stat. p. 2781 § 1.

The question, therefore, arises, Is the right which the lunatic had before the adoption of the constitution to have the question of his sanity determined by the verdict of a jury preserved by the constitutional provision above referred to ?

In De Hart v. Condit, supra, and Lindsley’s Case, 46 N. J. Eg. 358, it was urged that the summoning of a jury of twelve men instead of twenty-four was a violation of the constitution. Chancellor McGill, in this court, and Mr. Justice Dixon, in the court of errors and appeals, both held that the act of 1887 (P. L. 1887 p. 48) was not unconstitutional because it provided that the sheriff, on inquests in lunacy, was authorized to summon twelve instead of twenty-four jurors, pointing out that at common law a jury of twelve men was sufficient. In both these cases it was not considered necessary to decide whether an inquest in lunacy is such a trial by jury as the constitution contemplates. I am not aware of any case in this state where the question has been directly raised or decided.

This question, however, was passed upon by the court of appeals of the State of New York in the well-considered case of Sporza v. German Savings Bank, 192 N. Y. 8; 84 N. E. Rep. 406; and the court nnanimonsly held, under constitutional provisions similar to ours, that the right to trial by jury in lunacy eases was saved. It was careful, however, to distinguish between cases where proceedings were brought for the appointment of a committee, where the finding by a jury of incompetency is a condition precedent, and proceedings instituted under the police power for the temporary restraint of insane persons prior to the appointment of any committee.

Counsel for the petitioner cites the case, recently decided by the chancellor, In re Martin, 98 Atl. Rep. 510, in justification of the right to proceed under her petition. That case is quite unlike the present. There it was sought by the petition to procure the release of the inchoate right of dower of a wife who was insane. The application was made under section 28 of the Dower act (Comp. Stat. p. 2052), as amended by the P. L. 1915 p. 896. In that case the question of the constitutionality of the. supplement to the act concerning idiots and lunatics passed in 1915' (P. L. 1915 p. 57) was neither presented nor considered. It had no application to the case sub juclice. The law giving the chancellor the right to proceed, as he did in the Martin Case, was applied by Grey, M. C. C. (afterwards vice-chancellor). In re Conveyance of the Inchoate Right of Dower of Mary Booskirk, an Alleged Lunatic, 24 N. J. L. J. 591. In that case the proceedings were had under the Dower act, passed March 27th, 1878, which appears in the Gen. Stat. 1895 p. 1281 (at § 28); and the prayer of the petition was granted. This latter act was also considered by Vice-Chancellor Green (In re Mary Ann Alexander, 53 N. J. Eq. 96), and the relief was denied because the inchoate right of dower of the lunatic had attached prior to the passage of the act of 1878.

It is, therefore, quite apparent that the case In re Martin does not control this case. Here the petitioner seeks, under the law of 1915, entitled “A supplement to an act entitled ‘An act concerning idiots and lunatics ’ ” (P. L. 1915 p. 57), to have the chancellor inquire into and determine the question of the lunacy or insanity of Hugh McLaughlin, ‘‘without the intervention of an inquisition or commission of lunacy by a jury,” and to appoint a guardian. If she succeeds in this, then the alleged lunatic may be restrained of Ms liberty, and all of Ms property taken ont of Ms control, and be prevented from making contracts and attending to Ms business and affairs, without the right of trial by a jury of his peers.

It seems quite plain that when the framers of the constitution inserted the paragraph providing that the right of trial by jury should remain inviolate they were fully advised of the common law liistory of the method of determining the question of lunacy, and of the acts of March 1st, 1804, and February 28th, 1820, above referred to, and intended to perpetuate the system, which forbade the finding of lunacy unless by the verdict of a jury.

'I am, therefore, of opinion that the act of March 3d, 1915 (P. L. 1915 p. 57), in so far as jurisdiction is given to the chancellor to adjudge a person a lunatic without the intervention of a jury, and to appoint a guardian accordingly, is unconstitutional, null and void.

The application will therefore be denied.

In closing, I maji- say that I regarded this case as so important and far-reaching, affecting, as it does, a whole line of cases, that I conferred with the chancellor about it, and am authorized by him to say that he concurs in the result reached and the reasons upon which it is predicated.


author: Grikfin, Y. C.

text:
    John F. Shannon and Mary J. C. Ginnochio v. Daniel C. Watt.
    [Submitted August 14th, 1916.
    Decided October 17th, 1916.]
    1. Rights of curtesy and dower are favored in the law and will not be extinguished except by unequivocal words.
    2. Where a decree of divorce a mensa et thoro contained a requirement that the husband would release his curtesy in the property of his wife on demand, after the death of the wife her heirs could not enforce such action by him, the obligation being personal between the parties.

      On motion to strike out bill on tbe ground that it discloses no cause of action.

      Mr. Marshall Van Winícle, for the complainants.

      Messrs. Runyon & Autenreith and Mr. Walter L. McDermott, for the defendant.
   Grikfin, Y. C.

This case presents for solution the question, Did the defendant, in the lifetime of Mary J. Watt, his wife (now deceased), do that which should lead a court of equity to decree that he release his estate by the curtesy to the complainants as devisees under her will ?

The complainants base their claim upon the will of Mrs. Watt and an agreement entered into between husband and wife pending a suit brought by the wife in the supreme court of the State of New York for a divorce a mensa ei thoro, which agreement is evidenced by the decree of that court entered by the consent of the parties.

By the will of Mrs. Watt, executed October 30th, 1914, she devised to each of the complainants in severalty certain lands, and in a residuary clause devised the remainder of her lands to them as tenants in common. The name of the defendant is not mentioned in the will, nor is there any expression in it of an intent or desire that the devisees should take freed from the estate by the curtesy of her husband.

The bill clearly states facts which entitle the husband to his estate by the curtesy, unless the proceedings had in the supreme court of New York require its divestiture.

An examination of the findings of fact and conclusions of law and the decree annexed to the bill discloses that Mary Jane Watt (the testatrix) commenced an action in the supreme court of the State of New York, in and for New York county, against her husband, the defendant here, for a divorce from bed and board; the husband defended; in the course of the trial, and before its termination, the parties reached an agreement which is embodied in the findings of fact upon whiqh the conclusions of law and the decree subsequently made are based.

Of the several findings of fact, the one found by the court, which is pertinent in this case, is as follows: '

“VI. That the defendant promised in open court to pay to the plaintiff the sum of fifteen dollars ($15) per week, for her support and maintenance during her natural life, and to release his interest as tenant by the curtesy in all her real property, as well in that she now has as in any that she may subsequently acquire, and to- execute any and all instruments and conveyances which may be necessary to carry into effect such releases of such interest, whenever he may be requested by plaintiff so to do.”

The conclusion of law fotmded on the foregoing finding is:

“II. That the plaintiff is entitled to the sum of fifteen dollars ($15) per week for her support and maintenance during the remainder of her natural life, to be paid by the defendant herein, together with the costs and disbursements of this action, and to have executed by the defendant, now or at any future time, when the same may be requested by plaintiff, any and all instruments, which will convey, transfer and release any and all interest which said defendant now has or in future may acquire as tenant by curtesy in any real property of said plaintiff, and that she have judgment accordingly.”

The decree entered upon the foregoing findings of fact and conclusions of law is dated June 2d, 1908. In one paragraph the defendant is ordered to pay the alimony, $15 a week, at the foot of which is the following: “Such payments not to be in lieu of her right of dower in defendant’s real estate”—thereafter, .it is “ordered, adjudged and decreed that the defendant release his interest, as tenant by the curtesy in the real property of the plaintiff and execute all instruments and conveyances necessary to carry out such release of said interest, and float he release whatever interest he may subsequently acquire as such tenant by the curtesy in any property which plaintiff may hereafter acquire, and execute any instruments necessary to effect such release, whenever he may be requested by the plaintiff so to do.”

The decree concludes with the following: “Ordered, adjudged and decreed that either party may apply to this court for further order or direction in the premises at the foot hereof as may be just and reasonable.”

The defendant fully complied with the terms of the decree down to the date of his wife’s death. He paid the alimony as therein directed; and, on June 9th, 1908, at the request of his wife, executed two deeds of conveyance to one Michael J. Burke, conveying his interest or estate by the curtesy in the real property which she was then seized of, for the consideration of one dollar. These deeds were delivered to the attorney of Mrs. Watt, who, in turn, delivered them to Mrs. Sheridan, her sister, who held them down to the month of October, 1911, during which time Burke was unaware of the conveyances, and they were not delivered to him.

On October 23d, 1911, Burke and wife conveyed to Mrs. Sheridan, who, as alleged in the bill, held the same for the said Mary J. Watt. On June 20th, 1913, Mrs. Sheridan died, leaving a will, in which she bequeathed the property which theretofore had been conveyed to her by Burke, and other property, to her sister, Mary J. Watt, in whom the legal estate in fee vested and so continued down to the date of her death, on December 18th, 1914.

Thus, Mrs. Sheridan held the legal estate in fee for the use of Mrs. Watt from October 23d, 1911, until the date1 of her death, in that part of the real estate in question which had been conveyed to Burke; and from the death of Mrs. Sheridan, on June 20th, 1913, to the death of Mrs. Watt, on December 18th, 1914, covering a period of about eighteen months, Mrs. Watt was seized of an estate in fee in the lands mentioned in the bill, and, although so seized, she never requested her husband to execute deeds, releases or other conveyances under the right conferred upon her by said decree; and the defendant never executed any such instruments.

After the death of Mrs. Watt her devisees requested the defendant to execute such instruments, in alleged compliance with the agreement, with which request the defendant refused to comply.

In this situation, on September 15th, 1915, the defendant instituted three actions of ejectment in the supreme court of this state against the complainants to recover possession of all the real property mentioned in the bill, alleging that he is entitled to an interest or estate by the curtesy therein; whereupon the complainants filed their bill in this court, with innumerable prayers for relief, including prayers that the defendant may be-directed to convey his estate by the curtesy, and for injunction against the prosecution of the suits at law.

Taking the bill- in its entirety, the determination of the question propounded at the opening of this opinion will practically dispose of every issue and prayer in the bill.

Assuming for the purposes of this case that the agreement alleged to be evidenced by the decree could have been enforced by the wife in her lifetime, this question arises, Are the complainants, her devisees, vested with a similar right ?

The agreement does not, in express terms, give to the heirs or devisees of the wife any rights thereunder. These are limited to the wife only; therefore, such'rights, if any, must arise by implication.

The rights of curtesy and dower are favored in the law. Neither husband nor wife will be excluded from rights in the property of the other springing from the marital relation except by words that leave no doubt of the'intention so to do. Cushing v. Blake, 30 N. J. Eq. 689 (697); Radley v. Radley, 70 N. J. Eq. 248; Freeland v. Mandeville, 28 N. J. Eq. 559 (563).

Construing this alleged agreement in the light of the rule thus ' ■ stated, how can the complainants prevail?

By the terms of the agreement, the husband promised to convey whenever he might be requested by the wife so to do. In the agreement (evidenced by the findings of fact, conclusions of law and the decree) there-is nothing indicating that the husband should lose his estate by the curtesy, otherwise than by his conveyance (or, possibly, upon a failure to comply with the request of his wife to convey), or that he should convey until requested by his wife so to do, or that his promise was intended to inure to the benefit of the heirs or devisees, or that they should have the power to request or exact performance of this promise. What valid reason can be urged to justifj^ the court in construing this agreement as if the promise ran to the wife and her heirs and ■devisees? In. view of the language of the agreement, and the relations of the parties, I can see none. On the contrary, considering that the parties continued to be husband and wife, notwithstanding the decree, and the difficulties which she would encounter in attempting to convey without the consent of her husband, is it not apparent that the intent of the agreement was that she should have such dominion and control over her own property that she could convey at will and compel her husband to join in the conveyance, and take the proceeds to her own use ? This theory seems to find support in the clause saving her dower in her husband’s real estate. If it was the intent that the husband should not have curtesy in the wife’s estate, why was not a clause excluding it inserted in the decree ?

This suggestion is not made on. any 'theory that the clause was necessary to save her dower; but as estates in dower and curtesy vest after the death of the owner of the fee, and the minds of the parties turned to this subject, it would seem quite as natural, if such was the intent, that the framers of the decree would insert as well a clause divesting euftes3r as one saving dower. This would seem to lead to the conclusion that the parties intended only to give to the wife an option to divest her husband of curtesy, whenever she, by a request to convey, elected so to do. This -also seems to have been the view of the parties, for, within six days after the decree was signed, she did request, and he did convey.

But whether, on a strict construction of the contract, it is determined that the agreement does not inure to the benefit of the devisees, and they cannot make the request and enforce the agreement, or the meaning of the parties cannot be ascertained from the whole agreement with reasonable certainty, complainants must.fail. Cushing v. Blake, supra; Radley v. Radley, supra; Freeland v. Mandeville, supra.

This ease is clearly distinguishable from that of the Appeal of Scott, 147 Pa. St. 102; 23 Atl. Rep. 214, where the court decreed that the widow was not entitled to share in the estate of her deceased husband. In that case, it seems that while proceedings for a limited divorce were pending an agreement was entered into between the husband and wife in such language that it was made plain to the court that the wife released not only to her husband, but to his heirs, executors and administrators.

While this case has been considered as if a binding agreement was created by the proceedings leading up to the decree in the New York supreme court, I do not deem it necessary to determine whether an agreement was in fact created, which might, as such be enforced by the wife in her lifetime in the courts of this state. Bullock v. Bullock, 52 N. J. Eq. 561; Van Orden v. Van Orden, 58 N. J. Eq. 545. Nor is it necessary to consider the other points argued by counsel, in view of the conclusion reached.

A decree will be advised striking out the bill.