text:
    Benjamin Atkins et al. v. W. A. Fletcher Company et al.
    [Filed January 29th, 1904.]
    1. A hill alleged that the complainants, forty-six in number, were machinists, recently employed by defendant company, but were on strike; that the complainants, with other machinists, had formed a voluntary association to better the condition of machinists in general; that defendant company and others, individuals and corporations, had formed a voluntary association for the purpose of dealing with labor troubles affecting the metal trades in New York harbor; that, in order to carry out the design of the machinists’ association, the complainants had endeavored to obtain machinists to join them, and had maintained a system of quiet picketing in the streets near the machine shops of the defendant company, and averred that defendants, in combination, were interfering, by intimidation, threats, violence, arrests, &c., with the pickets of complainants.- — Held, that the complainants were before the court as employers, and not as employees though the bill also averred that defendants had conspired to compel complainants to work for defendant company.
    2. Employers have the right to combine to refuse employment to any kind or class of workmen just as fully as employes have the right, to combine to refuse to be employed by any employer employing men of whom they disapprove or conducting his business contrary to their views.
    3. A bill presenting the complaint of a voluntary association composed of machinists, and organized for various purposes, including benevolent purposes, and alleging that the association had employed persons to'perform the service of “picketing;” that complainants had been so employed, but that most of them had been compelled to give up the work because of the insults, violence, unlawful arrests, &c., to which they were subjected by defendants, could not be deemed as averring grievances of the “pickets” themselves, but merely - regarded as grievances of the association itself.
    4. The mere fact that defendants, in combination, by means of intimidation or criminal violence, interfere with the free flow of labor to an employer, does not give the employer the right to equitable relief, in the absence of his showing that- his remedy at law is inadequate. . •
    5. Equity does not undertake to grant injunction in strike or boycott cases unless complainant has shown substantial pecuniary loss in respect to his property and business for which an a'ction at law was an inadequate remedy,, or where he has shown that he had been deprived of his right to make a living.
    O. The right of a voluntary association, engaged in supporting a strike, to freedom in the labor market, so that the association can readily employ pickets and other agents in carrying on its industrial warfare, is not a proper subject of protection by means of an injunction.
    Motion for a preliminary injunction. On bill and affidavits and answering aQidavits.

      Mr. William Hughes and Mr. James G. Blauvelt, for the motion.

      Mr. Edward Buss and Mr. Francis Scott, contra.

   Stevenson, Y. C.

(orally).

My conclusion is that no proper case is presented for an injunction, certainly not for a preliminary injunction.

I indicated to counsel during the argument, or at its close, several of the principal objections, which seemed to me to lie in the way of granting to the complainants the preliminary injunctive relief for which they apply. The case is a somewhat novel one. It may be that a little later I phall file a written opinion. I certainly shall do so in case of an appeal. At present I shall not undertake to discuss at great length all the reasons, some of which I cannot now recall, which led me, after going over the ■case very carefully, to the conclusion that a preliminary injunction would not be justified by the case now before this court.

It seems to me, however, in view of the wide scope of the argument and the various aspects in which the complainants’ bill was viewed and exhibited by counsel, and the various kinds of grievances of all or some of the complainants which have been the subject of discussion, that it is important to explain what I regard as the correct analysis of the case now presented for judicial determination.

The complainants, forty-six in number, are machinists, recently employed by the defendant corporation, W. & A. Fletcher Company, but now on a strike. The complainants, “with eertain other machinists, have formed a voluntary association for the 'purpose of bettering the condition of machinists in general and the members of such association in particular,” which voluntary association is known as the International Association of Machinists. The bill sets forth that the defendants, the W. & A. Fletcher Company and some thirty or forty individuals, partners and corporations, who are named, “have formed a voluntary association known as the New York Metal Trades Association,” which is organized for tire purpose of dealing with labor difficulties affecting the metal trades in New York harbor. It further appears from the bill and accompanying affidavits that, “in ox*der to carry out the design” of the International Association of Machinists, the complainants “have endeavored to obtain as many machinists as possible to join them,” and have maintained a system of quiet, peaceable picketing in the streets near the machine shops of the W. & A. Fletcher Company. All unlawful practices in connection with this picketing are denied, and the bill sets forth in detail various reascms why, for the accomplishment of the objects of the complainants in their voluntary association, the maintenance of pickets is lawful and proper, if not necessary. The grievance of which the complainants complain is that the defendants, acting hr - combination, are interfering by intimidation, threats, violence, arrests and other unlawful practices with the pickets of the complainants.

The complainants do not stand before the court as employes or persons seeking employment, whose natural expectation of obtaining work in machine shops is defeated because the defendants, by intimidation and molestation practiced upon the proprietors of the machine shops, constantly thwart them in their effort to get employment. In brief, the complainants stand before the court as employers and not as employes.

It is true that the bill alleges that the

“members of the New York Metal Trades Association have entered into a conspiracy to force and compel the complainants to work for the W. & A. Fletcher Company upon such terms as the AY. & A. Fletcher Company may demand, and have conspired together for the purpose of preventing the-complainants from earning a living - at their trade as machinists, and that they are carrying out and effectuating the said conspiracy, and that they have discharged such of the complainants as have received employment from any of the members of such association as soon as they ascertained that the complainants were former employes of the Fletcher shops, and the only reason assigned was that the complainants are former employes at Fletchers’, on strike.”

This allegation of the bill seems to be based upon the erro-;neons idea that employers have not the right to, combine freely to refuse employment to any kind or class of workmen precisely as employes have a right to combine freely to refuse to be employed by any employer who sees fit to- employ workmen of whom they disapprove, or sees fit in any respect to conduct his business ’contrary to their views. But, apart from this consideration, the bill is not filed by the particular machinists who thus have been discharged to restrain defendants, acting in combination, from unlawful conduct which has secured their discharge, and now stands in the way of their being employed by persons who, if left free, would lie willing to give them work. The discharge of some of the complainants, whether procured lawfully or unlawfully, is not to be regarded, under the allegations of this bill, as a grievance of the particular workmen who have been so discharged. It must be regarded solely as a grievance on the part of the fortj’-six complainants, as constituting tire International Association of Machinists, and in their capacity as employers of labor, if such discharge can constitute a grievance of said association.

It also appears from the bill and affidavits that the International Association of Machinists have employed some of the complainants at a daily wage to do certain services which evidently may be all deemed embraced in the word “picketing,” and that

“many of the complainants have been so employed during said strike, and that they or most of them have been compelled to give up such employment by reason of the annoyance, insults, violence, force, intimidation, threats, unlawful arrests and malicious prosecutions to which they were subjected by the Fletcher Company and the New York Metal Trades Association and their employes,” &c.

Here, again, we have a charge of unlawful conduct on the part of the defendants which has caused some of the complainants to be deprived of what is claimed to be a lawful employment, by which they may be said to be earning their living at a daily wage. But this bill is not filed by the complainants as pickets, as persons employed in a certain business whose opportunities for employment are cut off by the alleged unlawful conspiracy of the defendants. The interference with the work of the pickets must be regarded, in this ease, as an alleged grievance of the International Association of Machinists.

This bill presents the complaint of this voluntary association as a partnership, engaged in the accomplishment of certain objects, many of which are benevolent. Any intimidation or other interference with the pickets employed by the association may be regarded as a possible grievance of the association, but cannot be regarded in this suit as a grievance of the pickets themselves. It will be time enough to consider any such grievance of the pickets when the pickets file their bill or bills for relief.

No question has been raised as to the capacity of the forty-six machinists to file this bill on behalf of the entire voluntary association known as the International Association of Machinists, although the argument on both-sides assumed that this international association embraces largo numbers of machinists throughout various states of the union. Confusion no doubt has resulted in the argument of this motion, from tlpe fact that forty-six of a large number of partners or voluntary associates file a bill apparently for the protection of the right of the entire partnership or association to employ labor and to enjoy a free labor market, while the same bill sets up what might be deemed as separate causes of'action in equity on the part of different sets of these forty-six complainants seeking- employment in their trade as machinists, or seeking employment in the business of picketing for a daily wage. All the allegations of this bill, although they may contain a large number of separate causes of action in equity on behalf of employes of one kind or another, whose right to make a living has been interfered with, must be considered solely with reference to the capacity in which the forty-six complainants stand before the court, and the complaint which they make in such capacity. As I have said, the complainants stand before the court as employers of labor, and their grievance is that the defendants, acting in combination, are unlawfully interfering with the right of the complainants as such employers of labor to have labor flow freely to them. Jersey City Printing Co. v. Cassidy, 18 Dick. Ch. Rep. 759; 53 Atl. Rep. 230.

The mere statement of the nature of the complainants' case— the only case, as this bill is framed, which I think the court can now take cognizance of — indicates the fatal objection to granting in such case the remedy of injunction.

The mere fact that defendants, in combination, by molestation and intimidation, or by criminal violence, interfere with the free flow of labor to an employer, does not necessarily give such employer the right to come into a court of equity and procure an injunction for his protection. The employer (complainant) must show, not only that the conduct of the defendants in combination unlawfully obstructs him, the complainant, in enjoying his natural expectancy in respect of the labor market, but that the natural and proximate result of the unlawful conduct complained of will be to inflict upon him, the employer, substantial money damages, for which the remedy at law is inadequate. The injunction, at the instance of an employer, in these strike cases, was forced out of courts of equity because the situation presented was one where, without injunctive relief, ruinous losses to the complainant would be inevitable. Railroads and large plants of machinery were paralyzed, aggregations of capital lay idle, while the persons acting in combination, who, by their interference with the free labor market, had caused and were continuing this great pecuniary loss, were themselves irresponsible pecuniarily. It is to this class of cases, in my judgment, that the strike injunction should, under present social and business conditions, as far as possible, be confined. Courts of equity should be cautious in undertaking to regulate by injunction the annoying conduct of a combination of individuals at the instance of complainants, whose only complaint is that their political, social or religious activities are interfered with, or their amusements curtailed. The elemental right of the employer of labor which the courts recognize to-day no doubt is the right to employ, while the corresponding right of the workman is the right to be employed. In other words, the right to buy labor and the right to sell labor are recognized by the law, and their enjoyment is greatly impaired or destroyed unless freedom in the labor market — freedom on both sides of the labor market — is maintained. Each party to a contract for the sale of labor has an interest in the freedom of the other party with respect to making the contract. But I know of no case where a court of equity has recognized this right and protected it by means of air injunction where the violation, or the continued violation, of the right would not result in irreparable damage of a substantial character, for which the remedy at law by an action for damages would be inadequate.

It is not every person who wishes to hire a servant or engage an agent for any one of the innumerable purposes for which servants aard agents are employed who can come into a court of equity and obtain an injunction for the protection of his right to employ, and for the removal of obstacles in the way of its exercise. At the present stage of the development of strike and boycott law there are innumerable situations in which one desiring to enjoy the right to employ or the right to be employed would not be allowed an injunction for his protection, because, while his social, moral, or even legal right may have been violated, the damage is not of a kind or nature to justify interference on his behalf by a court of equity. I do'not know that courts of equity have as yet undertaken to grant injunctions in strike or boycott cases unless the complainant has shown substantial pecuniary loss in respect of his property, including his business, for which an action at law was an inadequate remedy or where he has shown that the conduct complained of deprived him of his opportunity to make a living — deprived him of the means of a livelihood.

In the present case the complainants composing, or at least representing, the International Association of Machinists, do not claim that they arc suffering any substantial money loss from the alleged unlawful interference of the defendants with the complainants’ pickets. This association apparently has little, if any, capital invested in any way, and it does not appear to be conducting any trade or business of any kind. Its objects are not to make gain for its members as partners in business, using and seeking to acquire property. Its objects are largely benevolent. It is true that among its objects, as set forth in the bill of complaint, and therein declared to be the business of the association, is to “provide financial assistance to members attaining the age of sixty-five years and upwards, and to provide death benefits to all members in good standing for more than six months,” but it does not appear that the association has actually established such a pension and death benefit system, nor does it appear that any conduct of the defendants complained of has interfered with the operation and maintenance of such a system. The business of the association which is alleged to have been interfered with is rendering assistance to workmen in the successful maintenance of a strike.

If benevolent operations are entitled to the same protection by injunctions against combinations with a view to the preservation of a free labor market for their benefit, it might be argued with some force that before an injunction should issue in this case the proofs ought to show that the cause of the employes is just — the merits of the strike ought to be passed upon and determined. This would be strange work, indeed, for the court of chancery to undertake to do.

The right of partners or voluntary associates who arc engaged in supporting a strike to freedom in the labor market, so that they can readily employ pickets and other agents in carrying on their side of the industrial war, has certainly never been recognized by a court of equity as a proper subject of protection by means of an injunction. No such right, on the other hand, has been recognized and protected for the benefit of persons engaged in resisting a strike. If the New York Metal Trades Association, with its large and powerful combination of employing partners, corporations and individuals, should file a bill against the complainants to secure an injunction, protecting them, the Metal Trades Association, in employing detectives, agents and pickets to assist the W. & A. Fletcher Company in this contest with its employes on strike, it seems to me the case would present the same fatal defect which is exhibited in this present case. What a court of equity will protect by an injunction in a proper case are the rights of the two parties directly interested in this conflict — W. & A. Fletcher Company and their emplo3r-es — the right of the one .to emplo3r and the right of the other to be employed; the right of.both to have a free labor market upon which an opportunity to make money and to make a living depends. If the New York Metal Trades Association — this powerful combination of employers — should undertake to deprive the complainants, as machinists, as workmen seeking.,to sell their labor, of all opportunities for employment other than by the Fletcher company, and in carrying out this purpose should molest and intimidate, or in various ways anno}" or injure the proprietors of machine shops who otherwise would be willing to- employ the complainants, then, it seems to me, the complainants would be entitled to an injunction from a court of equity under principles which are now well settled, unless the more or less definite amount of the damages suffered by the complainants and the pecuniary responsibility of the defendants would relegate the complainants to a court of law for their remedy. On this point, however, it is not necessary to express any opinion in this case.

In connection with the consideration of the principle that an injunction is issued in strike cases only where the remedy at law is inadequate, it is important to- note that the complainants present no proof whatever that the defendants, or at least the principal' defendants, are insolvent. On the contrary, the affidavits on behalf of the W. & A. Fletcher Company stand uncontradicted to the effect that that company is entirely solvent and able to discharge all pecuniary obligations which may be-placed upon it.

I do not want either party to this case to understand that I have undertaken to- lay down with accuracy the entire strike law applicable to this present ease or suggested by it. Tire primary rights which are violated by strikes and boycotts, and. the remedial rights which thereby arise, are far from a condition of complete development or accurate definition. The law of this whole subject is to a large extent unsettled and involved in dispute and difference of opinion among judges and text-writers. In 'this condition of the law it is certainly safe to hold that in a novel case like this a preliminary injunction, at least, ought not to be issued, where the complainants do not show any substantial pecuniary damage, and it appears that the defendants, or some of them, are amply responsible for. any money damages which may be recovered against them in an action at law.

It must be borne in mind that the damages to the pickets which have been caused by their wrongful exclusion from employment are to be sharply distinguished from any damages which the complainants may have suffered on that account. It does not satisfactorily appear in this case that any department of benevolent effort, or any lawful business of the complainants in which these pickets were employed, has been impaired in efficiency or suffered actual pecuniary loss by reason of the alleged outrages to which the pickets have been subjected, or by reason of the driving of the pickets from their posts.

If an injunction should issue in this case, it seems to me it would have to bo based upon a principle far broader than any which has yet been laid down in any reported case — a principle as broad as this: That a court of equity will protect, by an injunction, the right of every man to enjoy a free labor market, the right of every employer to have labor flow freely to him, and the right of every employe to have employers left free to give him work — without reference to- whether the invasion of the right complained of causes great damages or trifling damages; damages readily measured in money, or damages difficult of exact ascertainment; damages for which a judgment could be collected, or damages for which a judgment would be wholly uncollectible.

I shall advise that the motion for a preliminary injunction be denied, with costs.


source: Caselaw Access Project

author: 'Stevenson, V. C.

license: Public Domain

text:
    J. Warren Vreeland v. Wallace N. Vreeland et al.
    [Filed February 1st, 1904.]
    T. The statute of descents regulating advances of land can have no application to a question as to whether conveyances of real estate by a testator were to be deemed'as advances of “sums of money,” or “advances and payment of money,” within the meaning of the terms as used in his will, it applying only in cases of intestacy.
    2. An agreement by a child that property received shall constitute an advance may be considered in determining whether it is the intention of the will that the property shall be so treated.
    3. Testator’s children signed an instrument acknowledging having-received from their father “divers sums of money and other property,” which he desired acknowledged in order that no misunderstanding or confusion might- result in the settlement of his estate. Subsequently two of the children signed an instrument acknowledging that since executing the above instrument they had received certain real estate as an advancement, and consenting that the value of the same, as fixed at a certain sum set opposite their names therein, “may be deducted from any share we may become entitled to” in his estate. The will directed “that the sums of money which I have advanced and which I may hereafter advance to my children shall be considered as advances and charged against each; * * * such advances and payment of money shall be taken out of their respective shares.” — Held, that the conveyances of land to the two sons were to be deemed “sums of money,” or “advances and payment of money,” within the intention of the will.
    4/ The agreements related to any distributions that might be made of the estate, whether under a will or on intestacy, and might be considered in determining the intention of the will.
    ,5. The two receipts constituted a contract on the part of the sons that the land might be treated as an advancement of money in a will by the testator, and 'they were estopped from denying its effect.
    6. A contract by children with théir father that conveyances of land should be treated as advances was valid.
    On bill for partition.

      Mr. James A. Gordon, for the complainant.

      Mr. John Griffvn, for the defendant, Wallace N. Vreeland.
   'Stevenson, V. C.

Michael DeMott Vreeland died March 19th, 1900, leaving a will, dated January 20th, 1896. After making some comparatively small devises and legacies he gave the entire residue of his estate, of every kind, to his seven children and the children of a deceased child, equally — eight shares in all. Following this residuary disposition, the will proceeds:

“Seventh. I hereby order and direct that the sums of money which I have advanced and which I may hereafter advance to each and any of my respective children, shall be considered as advances made to each and any of them out of m37 estate, and shall be charged as against them and each of them, and as against such share of my estate as each and any of them may be entitled to at my decease, and such advances and payment of money in my lifetime to each and any of them shall be taken out of the respective shares of each and any of my said children after my decease, and shall become a part of my residuary estate.”

The only question argued in the cause is whether two certain conveyances of real estate bi7 the testator to the complainant and the defendant, Wallace N. Vreeland, respectively, are to be deemed “sums of money” or “advances and payment of money,” within the meaning of the seventh paragraph of the testator’s will above set forth. So far- the statement of the matter argued discloses no possible question. The statute of descents, which regulates advances of land, of course, cannot affect this case, applying, as it does, only to cases of intestacy. It may be observed, in passing, also, that only a few days before the testator executed this will he made a partial 'distribution of his real estate in equal shares among a certain number — -if I recollect aright, six — of his children. It is not claimed in this case by any party that these gifts of land to the residuary devisees can possibly be deemed within the operation of paragraph seven, relating to advances.

The peculiar facts and conditions, upon which it is argued that the above-mentioned transfer of the two tracts of land to the complainant and to the defendant, Wallace N. Vreeland, respectively, must be deemed “sums of money advanced” to these sons by their father during his lifetime, are as follows:

On May 20th, 1893, five of the children of the testator, including the complainant and the defendant, Wallace N. Vreeland, executed under their hands and seals an instrument which is termed an indenture. This instrument recites that the parties signing it, being children of Michael DeMott Vreeland, had each received from their father “divers sums of money and other property,” and that it was the desire of their father to have them “acknowledge the receipt of said money or other property in order that no misunderstanding or confusion may result in the settlement of his estate by Iris death by reason of any inability to then prove the proper amounts received,” &c. The instrument further recites that the father had fixed the “amounts received by each” of the children and states said amounts in money.

The instrument then proceeds to witness' that the parties executing it respectively acknowledged “the receipt of the sum of'money” in each case stated, and acknowledged the same to be “an advancement,” and that the said parties also thereby consented “that the same be deducted from whatever amount, share or portion of the estate” of their said father, “whether real or personal,” they would “be entitled to receive upon his death had not such advancement been made.”

Following the above-stated instrument is a briefer one, dated December 2’8tli, 1893, executed by the complainant, J. Warren Vreeland, and Wallace N. Vreeland, under their respective seals. The two deeds to these two sons, respectively, bear the same date. This instrument is as follows:

“We, the undersigned, do hereby each for himself further acknowledge the receipt by us of certain real estate, from our said father, as an advancement made to us by our said father since the execution of the above instrument, and we do each for ourselves, consent that the value of the same fixed by our said father, and set opposite br our respective names, be charged against us as an advancement in the manner expressed in 'the above instrument, and that the same may be deducted from any share we may become entitled to in our said father’s estate, in like manner and in addition to the amounts therein charged against us respectively, that is to say:
“J. Warren Vreeland, Eighteen hundred dollar's..........$1,800.00
“Wallace’N. Vreeland, Two thousand two hundred dollars. . 2,200.00
“In witness whereof, we have hereunto set our hands and seals this 28th day of December, a. d. 1893.
“J. Warren Vreeland. (seal.)
“Wallace N. Vreeland. (seal.)”

Still a third similar instrument follows referring to the former ones, executed by the defendant, Wallace -N. Vreeland, ■onty, but inasmuch as it acknowledges the receipt of cash and no one claims that in fact it does not evidence an advance of money, no question in regard to it has been raised.

It must be conceded that the controversy in this case is to be determined solely by the construction of the clause in the testator’s will above set forth. Where transfers of real or personal property are made by a parent to his children, they can operate as advancements only in case of intestacy. If, after making such advancements, the parent makes his will without referring to the advancements so made, children who have received them take their shares under the will, without being obliged to account for the advancements. 1 Am. & Eng. Encycl. L. (2d ed.) 778, 4; Camp v. Camp, 18 Hun 217.

As the above authorities show, the reason for this rule is that where the testator has divided his estate among his children and refrained from any reference to advancements which he has made to them, the inference cannot properly be drawn that the testator intended that the advancements should be charged •against the testamentary gifts. The more natural inference is that the testator, knowing that he had made advancements, nevertheless saw fit to dispose of his property among his children without reference to those advancements, and thus bring about a different disposition of his property from that which would be •effected by law in case he died intestate.

It is well settled in this state that a child may make a binding’ agreement with his parent accepting a transfer of property in full discharge of all claims as heir or next of kin. Havens v. Thompson, 11 C. E. Gr. 383; Green v. Hathaway, 9 Stew. Eq. 471; Brands v. De Witt, 17 Stew. Eq. 545.

The- rule is to a large extent based upon the proposition that, in reliance upon the agreement, the parent has refrained from making a will and that therefore the child should be held estopped to dispute the effect of his agreement, the disregard of which would effectuate a fraud.

I am unable to perceive why a corresponding rule, based upon precisely the same equity, should not hold the child to his solemn agreement in -reliance upon which the parent has made his will or refrained from changing his will; It seems clear that the child is held in every such case, but the question is whether the parent, by his will, has discharged the obligation. Such discharge is effected where the will makes a disposition of property, which is inconsistent with the continuance of the obligation. Hence, whether the agreement is enforceable against the child or is to be disregarded, it seems ultimately to be a question of the construction of the will — an ascertainment of the intention of the testator as disclosed therein. The intention, I think, is to be derived from the perusal of the will and also from the perusal of the agreement, because the agreement was an existing fact with reference to which the will was made, and therefore comes within the definition of evidence which may be taken to aid the-court in construing a will.

Turning to the agreement presented in this case, the first question is whether its sole function was to afford evidence of the extent of advancements in case of the death of the father intestate, in which case only, strictly speaking, any inquiry as to advancements would arise, or whether it had the further function of becoming operative in case the father made a will, referring to it and dealing with advances made by him to his children in his lifetime, by evidencing the fact of such advances and the amount thereof.

I think it is plain that the purpose of these successive instruments, the last of which was made more than two years before the testator made his will, related to any distribution of the estate of the testator, whether upon-intestacy or in-pursuance of a will. The testator procured these instruments to be made and preserved them, and they were found after his decease among his papers. The instruments all carefully avoid using any terms which would confine their operation to a case of intestacy. It is “any share” which the children “may become entitled to” in their father’s estate which these instruments deal with. Surely, a child “becomes entitled to a share” of his father’s estate just as plainly under the terms of a will as when the father dies intestate. It may be observed that the will adopts the phraseology of the agreements, referring to the shares of the estate which the children “may be entitled to” at the testator’s decease. This language strongly' indicates at least what the testator thought was the scope of these agreements, and it is the testator’s intention which is the thing to be ascertained.

So far as the instruments evidence the payment of “sums of money” by the testator to any of his children in his lifetime and the amount of such payments, they plainly become operative as evidence under the provisions of paragraph seven of the will, and the inference, to my mind, is inevitable that the parent procured the execution of them by his children with such intent in his mind and that the children are chargeable with knowledge of that intent. They acknowledge that they had received property and money, consented that if their father died intestate, the amounts which they acknowledge should be deemed advancements, and also consented, although their consent could not fetter their father in disposing of his property, that what they had received should be deemed money and as such be deducted from the shares which’ their father might give them under his will.

The father’s will, it seems to me, was drawn with these instruments in view, and to fit the situation which they created. So far as the testator had to deal with advancements of money; he was not obliged to recite the amounts of money which he had advanced to any of his children and which he desired to have deducted from their shares. These solemn instruments established, as we have seen, the fact of the advancements of money and the amount thereof.

It is not disputed, as we have seen, that the first of these three instruments, dated May 20th, 1893, proves “advances” of “sums of money” to five of these children, amounting in the aggregate to about $8,000, and that under the terms of paragraph seven of the will the shares of these children are to be charged with the respective amounts so received by them. And yet it appears that while these five children acknowledged the receipt of the “sums of money” set opposite their names, such sums did not in fact represent cash advancements only, but included the value of “other property” besides money.

But in the case of the second instrument with which we have particularly to deal — the one dated December 28th, 1893 — it appears distinctly that what in fact J. Warren Yreeland and Wallace N. Yreeland received from their father was a conveyance of land. It, plainly, was not in fact a “sum of money,” or a payment of money. I think, however, that the instrument, as a whole, amounts to an agreement on the part of these two children that for the purposes of any distribution of their father’s estate at his death, either in case of intestacy or in pursuance of a will, these conveyances of land are to be deemed payments of money as against them, and as such to- be deducted from the shares of their father’s estate to which they should “be entitled.” We have seen that these instruments were made with intent that they should have force in case the father saw fit to give them force by provisions in a will. The father, in fact, by express provisions in his will, it is admitted, has made these instruments operative as evidence of cash payments to a very large extent. Taking the first and second instruments together, for they are so connected that the earlier one must be considered in construing the later^ I think the two sons must be deemed to have solemnly agreed with their father that the gifts of land which they acknowledged he had made should be deemed an advancement of money, and as such might be dealt with by their father in any will which he might see fit to make.

Turning, now, to the will which the testator made, with the knowledge of this instrument before him, the fair, and I think plain, meaning of the phrases “sums of money” and “advances and payment of monejy” includes not only actual payments of' money, but transfers of property to the children, which they (the children) have agreed shall be deemed payments of money for the purposes of the distribution of the father’s estate, either by virtue of a will or in case of intestacy.

The father, as we have seen, procured these instruments to be made and retained them continuously in his possession, and at least one purpose in making them was to aid the father in the business of making a testamentary disposition of his property. The children, who signed these instruments, acknowledge eight different advancements and each is distinctly placed upon a pecuniary basis — in effect reduced to cash. I cannot adopt the view that the instrument dated December 28th, 1893, can be construed merely as an acknowledgment of an advancement in land together with an ascertainment of the value thereof. This instrument refers to the one which preceded it and provides for charging the amount named in cash “as an advancement in the manner expressed” in the preceding instrument, and the amount is to be deducted from any share to which the two children might become entitled, “whether real or personal.” The two advancements acknowledged in this second instrument are therein made chargeable precisely as the five advancements are made chargeable in the preceding instrument, and it is conceded that the five advancements named in the first instrument are chargeable as cash — as sums of money.

The construction of the instrument in question as effecting a sort of conversion of real estate into money for certain purposes is important only, however, in order to construe the terms of the will. The existence of this agreement was a fact in view of which- the testator acted. In construing a will, using such a term as “money,” the court plainly may take into consideration the nature of the testator’s estate. Here, in my opinion, the-testator regarded all these advancements, whether actually made in the form of conveyances of land or payments of money, or made partly in one way and partly in the other, as sums of money advanced by him, fixed as such irrevocably as against diese children by their solemn deeds. The testator made his will in reliance upon this agreement. These two children, in my opinion, are estopped to deny the effect of their agreement, inasmuch as to permit them to do so would amount to a fraud.

This whole case rests ultimately upon the proposition that the children may make binding agreements with their father upon which the father has a right to- rely, not only in refraining from making a will, but in making a will. I see no reason why, if this principle be correct, a child may not bargain with his parent that a conveyance of land from his parent to- him is to be deemed an advance of money of a certain amount for the purposes of any testamentary disposition which the parent may see fit to make. No doubt, as I have intimated, the proof must be clear that the language employed by the testator in his will was employed with reference to the language employed in the agreement of the child, because the will affords an ample opportunity to the testator to make his meaning plain by using other language. In my opinion, the meaning of paragraph seven in this will is not difficult to ascertain if it be borne in mind that these three instruments, a part of the language of which is incorporated in paragraph seven, were before the testator when he made his will, and that he made his will with their provisions in view, with the acknowledgment of his children therein contained that what they had received were “sums of money.”

If the testator did not mean that these two tracts of land should be deemed advances of “sums of money” to the extent stated in the paper before him, it seems to me that he would naturally and inevitably have excluded them from the operation of paragraph seven. These transactions stood before him as money transactions — sums of money charged against his children and whieh they acknowledge they have received. ' ■

There were very strong reasons why the testator, aided presumably by counsel, would naturally use substantially the language employed in these agreements.

The testator must be presumed not to have intended to charge any of the six favored children with the valuable gifts of land which he had made to them less thap three weeks before he made his will. He must have remembered these New Year’s gifts which he had made in a manner and under circumstances which must have impressed them upon his mind and upon the minds of his children. As, therefore, he manifestly did not wish to alter the character of these absolute gifts of land so as to make them advancements, he and his counsel would have been liable to direct in the will that only advancements in the form of “sums of money” or “payments of money” should be charged against the children who had received them.

The testator and his counsel, if he had one, had before them the solemn agreements of five of these children to the effect that certain advancements made to them some years before, which consisted of both real and personal property, should be deemed “sums of money” and as such should be deducted from the shares of both real and personal property which they (the children) “would be entitled to receive” upon their' father’s death out of his estate. He had, it is conceded, intended that these advancements should all be reduced to a cash basis and treated as money, and as such be charged against the children who had received them in case he should die intestate, but he had these instruments carefully worded so as to make them apply to shares under a will as well as to shares distributed upon intestacy. The argument for the defendant, Wallace N. Vreeland, admits that these instruments were drawn with a view to their serving as evidence in case the father saw fit to make a will referring to them. But whether this be true or not, it is clear that when the father undertook to make his will these agreements were in a form which enabled him to take cognizance of them and rely upon them in making a testamentary distribution of his estate.

It was most natural that the testator should use the phraseology of the agreements as he did if his intention remained unchanged. "What the agreements saw fit to term “sums of money” why should he not call by the same term ?

It was, it seems to me, not natural that the testator should use this phraseology if he had changed his mind and concluded,, by his will, to charge these five children only with advancements which, in fact, were in the form of sums of money, as distinguished from advancements which they had agreed should be deemed sums of money for the purposes of the distribution of the estate.

It may be observed also that if the term “sums of money,” mentioned in paragraph seven,' are not the “sums of money” acknowledged in the agreements, then the first agreement, which is the most important of all and acknowledged the receipt by the five children of five sums aggregating about $8,000 as advancements, would become of little value as evidence, and the inquiry would be open in each case, how much of each advancement therein aknowledged in fact had been made in money and how much had been made “in other property.”

The testator, by using this language in a different sense from ’that in which it was employed in the agreements, would certainly be departing from the policy of preventing “misunderstanding or ' confusion” among his children upon the settlement of his estate, and would be doing the very thing which any fairly intelligent man, especially when aided by counsel, would see must almost inevitably result in misunderstanding, confusion and protracted litigation.

Paragraph seven as well as the other paragraphs of this will indicate the work of counsel and also indicate, as I have said before, that the language of these instruments was before the eyes of the draftsman of the will. It is possible that the testator, with these agreements before him, used the language of the agreements in a different sense from that in which it is used in the agreements when the manifest consequence would be to make “misunderstanding, confusion” and litigation highly probable.

In my opinion Mr. Yreeland intended, when he made his will, to charge as advancements not only “sums of money” which actually had been paid by him in his lifetime to his children, but also the transfers of property, whether in land or in money, or in other property which these children had solemnly agreed by instruments which he held in his possession should be deemed sums of money for the purposes of a distribution of their father’s estáte. I think, also, that even if it could be maintained that the original purpose of these instruments had in view only a distribution of Mr. Yreeland’s estate upon his dying intestate, nevertheless the phraseology -of them is of such a form that when Mr. Yreeland came to make his will, he intentionally framed his will to meet the phraseology of the agreements. In the absence of any testimony that Mr. Yreeland ever made any other substantial transfers of property to his children besides those which have been proved in this case, it seems to me the fair conclusion is that practically the sole function of paragraph seven was to carry these instruments into effect.

I shall advise that the two conveyances be deemed payments of money to the extent stated, viz., $1,800 to J. Warren Yreeland and $2,200 to Wallace N. Yreeland. The construction which I have placed upon this will, while adverse to the interests of both the defendant, Wallace N. Yreeland, and the complainant, J. Warren Yreeland, accords with the views and wishes of the first-named son, the complainant herein, as manifested by the argument of his counsel.


author: Magie, Ordinary.

text:
    William J. Magie, Ordinary.
    Alfred Reed, Yioe-Ordinary.
    In the matter of the application for probate of the last will and testament of Jacob G. Berdan.
    [Filed June 30th, 1903.]
    1. A paper-writing, produced and offered for probate as a will, is shown to have been written and signed by the testator. It has a complete attestation clause appended, also in the handwriting of testator, and beneath that clause'are the admitted signatures of two competent witnesses.— Held, that a presumption of due execution is thereby raised, which will require the admission of the paper to probate, unless overcome by strong and convincing evidence.
    2. Both of the subscribing witnesses, when called, while admitting the genuineness of their signatures, testify that the paper was not signed by testator, nor the signature thereto acknowledged by him, in their presence, and that their signatures were not made at the same time or in the presence of each other. Although the evidence of one witness was open to serious question affecting his recollection of the transaction, the evidence of the other witness being found credible, and to establish that he did not see the attestation clause or know its contents, and that the statements therein certified were not in fact true — Held, that the presumption arising from the attestation clause was overcome, and that probate should be denied.

      Mr. Milton Demaresl, for the proponent.

      Mr. Gilbert Oollins, for the Hackensack Hospital, a legatee.

      Mr. John W. Harding, for the caveators.
   Magie, Ordinary.

The paper-writing offered for probate as the last will and testament of Jacob G. Berdan, who died in the city of Paterson, December 26th, 1902, is shown by the evidence, and conceded by counsel for the caveators, to have been written by the testator himself, whose genuine signature is thereto appended. There is appended to the will, and also written by the testator, an attestation clause, certifying to an execution by the testator, in all respects in conformity with the provisions of our statute of wills respecting the execution of such instruments. Below the attestation clause appear the signatures of two persons, Albert Bogert and Albert H. Blauvelt. These persons have been produced as witnesses and each testifies that his signature was made by himself.

Proof that .testator signed this instrument and that two-persons signed this attestation clause, raises a presumption of the due execution thereof as a testamentary disposition of property, which will permit and require its admission to probate. The burden of proof is thereby cast upon the contestants, who must, to justify its rejection, negative its averments by strong and convincing evidence. Darnell v. Buzby, 5 Dick. Ch. Rep. 725, and eases therein cited; S. C., 7 Dick. Ch. Rep. 337; Hildreth v. Marshall, 6 Dick. Ch. Rep. 241; Swain v. Edmunds, 8 Dick. Ch. Rep. 142; S. C., 9 Dick. Ch. Rep. 438.

The caveators are children and heirs-at-law and next of kin of the deceased.

It is first contended in their behalf that, upon the face of the will, the attestation clause is shown to be untrue or ineffective. The first of these contentions is that the will could not have been signed in the presence of the witnesses, and that the attestation clause does not certifj'- that the signature was acknowledged by ■the testator in the presence of the witnesses. Passing the question whether the statute, which requires signing in the presence of the witnesses, or that the signature should be made or acknowledged in their presence, is not satisfied by a certificate that the will was signed, it is sufficient to dispose of this contention to say that it is not raised upon any admissible fact. Testator undoubtedly wrote the whole will and the signature. The writing was done with a pen evidently differing from that used by the witnesses. But that circumstance does not indicate that the signature was necessarily written at the time the body of the will ivas written. It may well have been written at the time the witnesses wrote their names, and if written, with the same pen which the testator used in writing the body of the will it would present the exact appearance that it does. The proofs show that testator was accustomed to use a fountain pen, and writings and signatures made by him with such a pen have been put in evidence. They resemble in all respects the body of the will and the testator’s signature. It is-further proved that testator carried such a pen and, when he needed to write, would take it from his pocket rather than use other pens. There is nothing on the face of the will to indicate that he may not have done so in the presence of the witnesses.

It is further contended that tire certificate in the attestation clause is ineffective, because below the last words of the clause was written, in testator’s handwriting, the word “witnesses,” and it is contended that the certificate of the two witnesses must be taken as limited to what 'is included in that word and not to the details of signing and publishing the will. But I am unable to yield to this' contention. The word “witnesses” is written to the left and not over the signatures of the witnesses. It is evidently intended by the writer to- indicate the place where the witness should sign his name and conld not have been taken by the witness as limiting the force of the certificate to which his signature was in fact appended.

This compels the consideration of the evidence before me and a determination whether it justifies the court in admitting the paper to probate.

As before stated, the proof is plenary that the will has the signature of the testator appended to it in his own handwriting, and that a proper attestation clause is also appended, to which the two witnesses have made their signatures in their own handwriting. This raises a presumption of due execution, which presumption, however, may be overcome by due proof. Unless overcome, it will require and support a decree for probate.

The contention of caveators is that the presumption is overcome by the evidence of the two persons who placed their names at the foot of the attestation clause as witnesses. The particular contention is that, by their evidence, the certificate is shown to be untrue in two respects, (1) that it untruly certifies that the will was signed in their presence, while, in fact, it was neither signed nor the signature acknowledged by the testator in their presence, or the presence of either of them; and (2) that they were not together at the time wdien they appended their signatures to 'the attestation clause, but that each appended his signature thereto at a different time and a different place.

Both of these witnesses were old friends of testator, and although each knew the other by sight they were not intimate acquaintances. They lived in different directions and each at some distance from the city of Paterson.

The writing bears date December 12th, 1891. After the death of the testator, Mr. Samuel Demarest, Jr., a counsellor-at-law, practicing in Hackensack, N. J., was found to be in possession of an envelope, endorsed in the handwriting of the testator, with these words: “The last will and testament of Jacob G. Berdan, December 12, 1891.” Upon being- opened, the envelope was found to contain the instrument now offered for probate. Mr. Demarest, the custodian, was called as a witness and testified that the envelope had been deposited with him for safe-keeping by the testator himself, but he was unable to fix the exact date of such deposit, though his statement would indicate that the time of the deposit was approximately near to the date of the instrument and the date on the envelope.

Albert Bogert, whose signature on the paper in question first follows the attestation clause, was called as a witness by the proponents. Upon their examination, he testified that his signature was made by him and at the request of the testator. Upon cross-examination on tire part of caveators, and upon further examination, by the counsel of proponents and the counsel of the legatee, he stated the circumstances under which his signature was made in the following manner: He testified that his signature was written at a place called WickofE, which is a station on the New York and Susquehanna railroad, in Bergen county, at which place he was upon some official business; that he met testator there, and that testator asked him if he would be a witness to his will, and, upon witness assenting, testator told him to sign it "right down there,” and that he thereupon signed his name in the place indicated by testator; that testator was then living at the house of a Mrs. Winters, near Wickoif station; that witness signed his name either at the station or at the Winters’ house, at which he took lunch with the testator on that day, and that he wrote his name with a fountain pen furnished by testator. He further testifies that no one was present when he signed Ms name except testator and himself; that no one did any writing upon the paper at the time except himself; that testator did not tell him that he had signed the paper; that he did not see testator’s name on the paper, and that he did not look at or see what was on the paper.

If Bogert’s evidence is entitled to entire credit, it is obvious that it overcomes the presumption arising from the attestation clause, for he was not made acquainted with its contents, and, if his memory of the transaction is to be relied on, the paper was not executed with the formalities required by our statute to make it a testamentary disposition of property.

But his statement of the transaction is so inconsistent with other facts incontestably proved, and has such discrepancies with itself that the amount of credit which ought to be given to it is open to serious doubt. He had testified that he was at Wickoff on the day in question on some official business as sheriff of the county. But his term of office as sheriff did not coincide with the time at which this document must have been signed. He then stated that he might have been there on some business as a chosen freeholder of the county. When confronted with his sworn statement of his services as freeholder for a period covering that during which this paper was doubtless signed, he failed to indicate any charge for official work which would have required him to go to Wickoff. He was at first clear in his statement that testator was then living at the Winters' house, but it is proved beyond doubt that testator did not go to board at Mrs. Winters' until 1894, and the evidence is convincing that this paper had been deposited with Demarest long before that time. There are other discrepancies, unnecessary to dwell upon.

I do not intend to intimate that his evidence could be rejected as consciously and intentionally false, but only that it indicates lapses of memory, and to such an extent that it might be a question whether his recollection can be relied on, and whether, if standing alone, it would be such convincing testimony as would suffice to overcome the presumption arising from the signed attestation clause. Testimony of one of the subscribing witnesses suggesting doubt, or his own want of recollection of the transaction, will not justify refusal of probate if the other witness corroborates the accuracy of the attestation clause as to execution. McCurdy v. Neall, 16 Stew. Eq. 333.

But there is other evidence which cannot be ignored. Albert II. Blauvelt, tire other subscribing witness, was called by proponents and testified that he made his signature (which is below that of Bogert) at the request of testator. Upon cross-examination and further examination he gave this account of the transaction: He testified that he was in a saloon in the city of Paterson, in which place testator (who was an insurance agent) was accustomed to do business; that this was at a time ten, eleven, or twelve years prior to the time he was examined, and this would' be approximately near the date of the will; that testator asked him to be a witness to his will, and, upon his assenting, testator walked to a desk in the saloon, brought out a paper and folded it; that witness put his name where testator showed him, and then testator picked up the paper and put it in his pocket. He expressly declares that the paper was folded in such a manner that he did not see what was on it; that testator did not sign the paper in his presence, nor did testator say in his presence that he had signed it. While witness admits that somebody, either the bartender or the owner, was at the time in charge of the saloon, and that others were, perhaps, in the place, he testifies that Albert Bogert was not there, and that no person in the saloon was near enough to testator and himself to take part in the transaction. He further states that he casually met testator not long before his death, and that testator remarked that he was a witness to his will, to which witness then assented.

Hnless I can find in the proved facts in the cause, or in this evidence itself, ground for rejecting it as incredible, I must give it effect. I can find no ground for rejecting it. The only fact which has raised any doubt in my mind is the singular resemblance in the signatures of this witness and of Bogert, which gives the impression that they were written with the same pen and the same ink. But this circumstance will not in my judgment justify me in finding that Blauvelt does not recollect what he professes to recollect respecting his part in the transaction. As I deem his evidence credible, I am compelled to conclude that this instrument was not executed in the manner required by law, because it was not signed or the signature acknowledged by testator in the presence of two witnesses present at the same time. Any presumption arising from the attestation clause has been overcome by Blauvelt’s testimony that he did not see the attestation clause, or knowingly certify to the facts therein stated, and that the facts in the respects above stated are not true.

It results that the probate must be denied. As proponent had in his possession a will perfect upon its face, in the handwriting of Ms testator, duly signed by known citizens attesting its proper execution, it was Ms duty to present it for probate and to pursue his application. His costs and proper counsel fee ought to be allowed out of the estate of the deceased.


text:
    Ezra P. Hoyt, appellant, v. William S. Hancock, comptroller, respondent.
    [Filed September 5th, 1903.]
    1. By a will which took effect while the provisions of the Collateral Inheritance Tax act of 1893 were in force, testator created a fund, the income of which was payable to a sister for life, with a power of appointment of the principal by her will. By her will, which took effect in 1895, the life beneficiary appointed the principal to be paid to her husband, who survived her. — I-IelA, (1) that the interest of the husband must be considered as having been acquired as of the time the instrument creating the power of appointment took effect; (2) that such interest was taxable under the provisions of the act of 1S98, and could be appraised by an appraiser appointed by a surrogate, when it became vested by the will of the donee of the power.
    2. The act of 1893 was repealed by the Collateral Inheritance Tax act of 1894, except so far as its provisions were re-enacted in the latter act, and the repealer was declared not to surrender any remedies, powers, rights or privileges acquired' by the state under any previous act. — Held further, (3) that the state’s right to tax the interest acquired by the husband remained unrepealed, and could be enforced.
    On appeal from assessment under the Collateral Inheritance Tax act.

      Mr. Alvali A. Clark, for the appellant.
    The Attorney-General, for the respondent.
   Magie, Ordinary.

By the will of Warren Ackerman, deceased, who died August 26th, 1893, domiciled in Union county, the residue of his estate was committed to trustees to divide it into as many shares as he might have brothers, sisters, nephews and nieces, who should survive him, and to set apart for each of them one of such shares, and pay the income thereof to him or her during his or her natural life, and on the death of any such brother, sister, nephew or niece, to pay the principal of said share as he or she might direct by his or her duly executed will and testament.

Mary S. Iioyt, a sister of the deceased and the wife of Ezra B. Hoyt, survived the testator and died on March 25th, 1895, leaving a last will, by which she appointed her said husband as the person to receive the principal of her share under the provisions of the will of Warren Ackerman.

In December, 1895, the surrogate of the county of Union had an appraisal- and assessment made upon the estate of the appellant, which he acquired under the appointment of his wife’s will. Appellant protested against the assessment and prosecutes this appeal to vacate it and set it aside.

It is conceded by counsel, and is undoubted law, that the interest which Ezra P. Hoyt took by such appointment is related back and referable to the instrument which conferred the power of appointment, which instrument was the will of Warren Ackerman, which took effect August 26th, 1S93.

At that time the Collateral Inheritance Tax act of 1893 (P. L. of 1893 p. 367) was in force. If the death of the testator had antedated the act of 1893, the provisions of that act would not have operated to impose a tax upon the interest which Ezra P. Hoyt acquired by the appointment, for that interest is to be considered as acquired at the time of the will taking effect. Such was the decision of the court of appeals of New York under similar legislation. In re Harbeck, 161 N. Y. 211.

But since the testator’s will took effect while the provisions of the act of 1893 were in full force, the first question is whether, by those provisions, the tax now complained of can be enforced.

Appellant’s counsel first points out that the second section of the act of 1893 does not provide for such a case as that now before us, and this is quite correct. That section is wholly inapplicable to this case. It is the first section' of the act upon which the state must rely to sustain this tax, and there can be no question that it does cover the case, unless the further contention of counsel is effective. That contention is that the act does not provide for the imposition of a tax which cannot be determined at the death of the testator, and this contention is put upon the language of the fourth section of the act, providing that all taxes imposed by this act shall be due and payable at the death of the testator. But this contention cannot prevail. It ignores the phrase contained in that section that the tax imposed by the act shall be due and payable at the death of the testator unless otherwise provided. It also fails to take account of the provision of section 13, to the effect that, in order to fix the value ■of property subject to the tax, the surrogate, or register of the prerogative court, shall “appoint an appraiser as often as and whenever occasion may require.” Legislation substantially identical with the act of 1893 was enacted in New York, and its construction came before its court of appeals. The conclusion reached was that the provisions of section 4 did not indicate a legislative intention to exclude, from this form of taxation interests arising under such testamentary provisions, nor prevent such a construction of section 13 as would bring such a case as that now before me within the provisions of the act. In re Stewart, 131 N. Y. 274.

This conclusion is reasonable, and I do not hesitate to adopt it and apply it to the construction of the act of 1893.

If, therefore, the act of 1893 continued in force up to the date of the imposition of this tax, I entertain no doubt that the tax should be upheld.

But the act of 1893 was superseded and repealed by the Collateral Inheritance Tax act, approved May 15th, 1894. P. L. of 1891 P- 318. If the repealer was without any saving clause, there could be no doubt that the tax in question would be invalid, because such a repealer would abolish the machinery b3 which the assessment could be' laid, and such special taxes as these can only be imposed by the machinery provided by the legislature.

But the repealer of the act of 1893 was not without a saving clause. The repealer was of all acts or parts of acts inconsistent with the provisions of the act of 1894 “except so far as herein re-enacted,” .and the provisions for the imposition of the assessment were all practically re-enacted. Besides, by the provisions of section 23, in which the repealer is contained, there was a saving clause. The language of it is not happily chosen, but, in my judgment, the proper construction is that the repealer should not be considered “to surrender any remedies, powers, rights or privileges acquired by the state under any act heretofore passed.” Dnder the construction I have given to the act of 1893, a right was acquired by the state to impose a tax upon the interest acquired by one who was appointed by the will of the life beneficiary to receive a share of a fund under a power of appointment. By that act the state acquired power to enforce the right thus obtained. The act further provided remedies for the enforcement of that right. When the legislature saved the rights and powers and remedies of the state under previous acts, I think the repealer in no respect deprived the state of power to enforce such a tax.

It results that the assessment must be affirmed.


text:
    In the matter of the final account of the executors of John Otto Donner, deceased.
    [Filed October 6th, 1903.]
    By the first clause of bis will testator directed his debts, funeral and testamentary expenses to be paid by his executors ; by the second, clause he bequeathed to his wife certain specific goods and chattels — part of his personal property — expressly declaring that the bequest was not to include such personal property as consisted of money and securities; by the third clause he bequeathed all his personal property to his wife and his two daughters, each to have one-third thereof. — Held, that no contrary intent being disclosed by other parts of the will, the general bequest contained in the third clause did not revoke the specific bequest contained in the second clause, nor was such specific bequest included in the one-third part bequeathed to the wife by the third clause, but that such specific bequést operated to except from the general bequest the articles so specifically given. .
    On appeal from the Bergen county orphans court.

      Mr. John W. Bookman (with whom was Mr. Frank K. Vandervoor, of the New York bar), for the appellant.

      Mr. William II. Gorlin and Mr. William T-. Day, for the respondents.
   Magie, Ordinary.

The appeal in this cause is from a decree of the orphans court of Bergen county, made February 19th, 1902, allowing the final account of Julia W. L. Donner and Spencer S. Baldwin, executors of the will of John Otto Donner, deceased. Exceptions were presented by Elizabeth Donner Franksen, a legatee and devisee under said will, and she has appealed from the decree.

The question of the greatest importance presented by the appeal arises upon an exception to the account, which is put upon the ground that the executors had not charged themselves with certain of the personal property of the deceased. ■ The fact that tire testator died possessed of certain personal property was not in dispute. The property in question was not included in the inventory made by the executors, nor did they chax*ge themselves with it, or its value, in the final account. The ex- ' ecutors claimed that it was the subject of a specific bequest in the will of their testator and that they had delivered it to the legatee to whom it was bequeathed, and therefore that they were irot bound to inventory it or to charge themselves with it in the final account. The contest is therefore upon the clauses of the will affecting the disposition of this property. The executors claim that the property was specifically bequeathed; the appellant claims that it belonged to the general fund, in which she was interested.

The property in question is that included in the second item of the will of the testator, which is in these words:

“I give and bequeath to my wife, Julia W. L. Donner, all my jewelry, silver, plated-ware, china, furniture, ornaments, bric-a-brac, wearing apparel, all household, domestic and personal articles, and also all my horses, carriages, liayness and other horse furnishings, and stable furniture and farming implements, it being my intention to hereby give and devise to my said wife all articles of personal property which I possess at the time of my decease, except money, either in cash or in the bank, stocks, bonds and all evidences of indebtedness.”

Upon the language of this clause, standing alone, no contention has been or can be made, but that the articles bequeathed were specific legacies, passing to the legatee the whole interest of the testator therein. While the better course of the executors would have been to inventory these articles as part of the estate, and their omission to do so could hav.e been objected to by creditors of the deceased, such omission has worked no injury to the appellant unless, by other portions of the will, she has an interest in that property or an interest in the estate which will be diminished by the exclusion of that property from the accounting.

Appellant claims that she has such an interest, or is thus injuriously affected by the exclusion of this property from the account under the provisions of the third clause of the testator’s will, which is in these words:

“Third. I give, devise and-bequeath one equal one-third part of all my property, both real and personal, wherever the same may be situated, to my wife, Julia W. L. Donner, one other equal undivided one-third pari thereof to my daughter Mary Elizabeth Van Arsdale Eranksen, wife of Rudolph Eranksen; and the remaining one equal one-third part thereof to my daughter Use Alberta Anna Donner. If however either of my said wife, or my said daughter Use Donner should die before me, then and in such event I give, devise and bequeath the share or portion of my said estate so devised and bequeathed to the one so dying before me, to the survivor of my said wife, and my said daughter Use Donner.”

The contention before me has been of a twofold character. It is first urged that, by the third clause, all the personal property of the testator was disposed of to the three legatees therein named, and that such disposition is inconsistent with the prior bequest of a portion of his personal property to his widow, so that the bequest to the widow by the second clause of the will was wholly ineffective and must be disregarded.

In the second place it is urged that, if the general bequest of the third clause does not wholly abrogate and revoke the specific bequest of the second clause, the two clauses must be construed together and, when so construed, the provisions of the third clause, bequeathing to the widow the equal one-third part of the personal property, must be held to be limited by the provisions of the second clause, so that the articles bequeathed by the second clause must be included in the one-third part of the personal property to which the widow became entitled by the third clause.

While there is no direct evidence of the value of the specific gifts disposed of by the- second clause, there is a justifiable inference that their value would not equal the one-third part of the personal property of the deceased which was inventoried and has been included in the account as having a value of over $160,000.

If either of the contentions of appellant be ■ accepted, the omission of the value of the personal property of the deceased named in the second clause of his will from the accounting operates to the disadvantage of the appellant, who is thereby deprived of the one-third part of its value.

The court below, in decreeing the allowance of the executors’ account with this amission, substantially overruled this exception and the appellant has a right to have the decree in this • regard reviewed.

The contention that the specific bequest to the testator’s widow, contained in the second clause of his will, must be rejected as wholly void, is put upon the well-settled and universally recognized doctrine that, when a testamentar}'- instrument contains two bequests or devises which are entirely irreconcilable and invincibly repugnant to each other, the latter of the two inconsistent clauses is to be taken as expressing the will of the testator and the former of them is of no avail. Lord Coke gives as the reason of the rule that the will of the testator is ambulatory even to the time of his death and a later will countermands the first. Co. Litt. 1126. The doctrine is too well settled in the courts of England and of this country to justify the citation of authorities. The subject of repugnancy and contradiction in wills is fully discussed by Mr. Jarman in the fifteenth chapter of liis treatise on wills (2 Jarm. Wills, R. & T. ed., 44) and by Judge Redfield in section 6 of the ninth chapter of his work on wills (1 Redf. Wills 443). See cases collected in 20 Am. & Eng. Encycl. L. (Ist ed.) 363.

The doctrine above stated, it is equally well settled, is never to be applied so as to avoid and make nugatory a plainly expressed disposition of property until, after an examination of the whole testament, it fully appears that such disposition is clearly repugnant to a succeeding disposition thereof. As in other cases requiring the construction of wills, the court charged with that duty is bound to seek out of all the provisions made by the testator his intent. To discover that intent clauses in the will may be transposed, if an intent may be thus discovered. 1 Underh. Wills § 362; Mutter Estate, 38 Pa. St. 314; Hunt v. Johnson, 10 B. Mon. 342; Creveling v. Jones, 1 Zab. 573.

Words having naturally an unlimited meaning may have a limited meaning attributed to them if from the whole instrument it reasonably appears that the testator used them in such limited meaning. Marshall’s Executors v. Hadley, 5 Dick. Ch. Rep. 547. If air intent is disclosed on such examination that clauses, apparently inconsistent, should not be contradictory but supplementary, such construction should be given them. If apparently contradictory clauses ma3q by a reasonable construction, .be reconciled and accommodated so that both may stand in whole or in part, such construction should be adopted to prevent the avoidance of testator’s expressed design.

Counsel for appellant concedes these propositions to be correct. He suggests, that the court may transpose the second and third clauses of this will, not for the purpose of applying to the transposed clause the doctrine first stated (which would be rather making a will for the testator), but fox the purpose of discovering testator’s intent, and he contends that there is thus revealed an intent which will reconcile the two clauses and avoid any apparent repugnancy. His argument is that the third clause, standing by itself, disposes of all testator’s personal property and, unless a different intent is otherwise discoverable, it is impossible to read it.as disposing of all the residue of such property. But he contends that if the second and third clauses be transposed, they may be wholly reconciled by finding an intent thus disclosed to include the property specifically bequeathed to the widow by the second clause in the. one-third part of the personal property bequeathed to her by the other clause.

Tf it appeared that the value of the property specifically bequeathed exceeded one-third part of all testator’s personal property, it seems obvious that this argument would not avail. But as a court, in attempting to discover a testator’s intent in a will, may put itself in the position of testator and look at the circumstances under which he made the will, and as it sufficiently appears that the property specifically bequeathed did not exceed in value one-third part of all testator’s personal property, the argument should be considered.

Unless testator’s intent that the specific bequests of the second clause should be included in and make part of the bequest to the same person of one-third of the personal property, contained in the third clause, is disclosed by other parts of the will, I am unable to discover such an intent in the mere fact of the apparent opposition of the two bequests.

The third clause, which disposes apparently of all testator’s personal property, is not contained in a codicil, nor is it separated in the will by other clauses from the second clause, which apparently disposes of certain specified personal property. Both clauses stand in juxtaposition and it is impossible to conceive that testator had forgotten the provisions of the second clause when the third clause was written or considered by him. Nor can it be conceived that testator consciously intended to abrogate and avoid the provisions of the second clause by the generality of the language of the third clause. If that intent is to be attributed it must, result from the application of the formal rule, which is not to be applied if a different intent can be discovered from the will.

By the second clause testator distinguished between two classes of personal property. One class is made up wholly of that kind of personal property which is denominated as goods and chattels, the other class is made up of money and securities. If the second clause be read in the order in which testator placed it, I think it may be properly inferred that testator deemed that the personal property disposed of by the third clause was that class of such property before distinguished and excepted from the bequest in the second clause. Young v. McIntire, 3 Ohio 498. But if the second clause be transposed and read after the third clause, a plain intent is disclosed to except its bequests from the general disposition of personal property. In either mode in which the two clauses are read, they may both be effective, and the case falls within that class of adjudged cases, an examination of which has led Judge Redfield to declare that they establish the rule that when a testator makes a general bequest, which includes the whole of his estate, and by other portions of his will makes specific dispositions, these must be regarded as explanations or exceptions out of the general disposition, and it will not be important in such case whether the general or the specific provisions come first in order, since, in either case, the general disposition will be regarded as made subject to the more specific ones. 1 Redf. Wills 445.

Mr. Theobald declares the rule to be that, where a gift of all testator’s property is followed by gifts of specific portions of it, or vice versa, both gifts may take effect. Theob. Wills (6th ed.) 659. When there was a devise of a certain portion of testator’s real estate to his widow in terms, which, standing alone, would have carried the fee, and b3r the next clause of the will there was a devise to his children of all his real estate, to be sold after the widow’s death, it was held that the widow took a fee in the real estate devised by the first clause and that the second clause operated only on testator’s other real estate. Brownfield v. Wilson, 78 Ill. 467; Holdfast v. Pardoe, 2 W. Bl. 975; Roe d. Snape v. Nevill, 11 Q. B. 466; In re Arrowsmith Trusts, 2 De G. F. & J. 474; Sherratt v. Bentley, 2 Myl. & K. 149; Cuthbert v. Lempriere, 3 M. & S. 158.

But there is language in this will which, though not adverted to by counsel on either side, requires consideration and which presents a question which I have not found free from difficulty. The question is whether it does not indicate testator’s understanding that the specific bequest was included in and made part of his general bequest in the third clause. By'the language of that clause it is clear that testator contemplated that his wife, or his daughter Use, might die before him, and that, in such ease, the provision for them would lapse. He manifestly intended to make provision for the happening of either event. He declared his intention in these words:

' "In such an event, I give, devise and bequeath the share or portion of my estate so devised and bequeathed to the one so dying before me, to the survivor of my said wife and my said daughter Use Donner.”

If this language must be construed as operating only upon the part of his property disposed of to his wife by the third clause, it would afford persuasive evidence that he deemed the bequest therein of one-third part of his personal property to his wife included the previous specific bequests to her contained in the second clause. For it is well nigh inconceivable that he could have intended to provide against a lapse in one case and not in the other. But I have reached the conclusion, although not without some hesitation, that this language may be properly applied not only to the one-third bequeathed to the wife by the third clause, but also to that portion of his' property previously specifically bequeathed to her.

It results that the court below properly overruled this exception and its decree is not erroneous in that respect.

A great number of exceptions were also interposed below to various items of the account of the executors. On the argument before me many of these exceptions were waived, and such waiver was indicated by erasures and statements by counsel upon the state of the case furnished me. No brief pointing out specifically the objections retained and the grounds for deeming the decree in those instances erroneous has been furnished me. I have examined the exceptions remaining unwaivecl with all the care possible and with an effort to discover the grounds on which error in respect to them is asserted. The result is that I have been unable to find that the decree below is shown to be erroneous in respect to any of them.

The result is that the decree must be affirmed.