author: Walker, Ordinary.

text:
    In the matter of the estate of Francis L. Wandell, deceased.
    [Decided October 23d, 1920.]
    1. An appeal from the orphans court to the prerogative court, while it removed the cause and potential record does not actually remove the physical record—that is, the papers constituting the record remain in the orphans court, whose jurisdiction over the cause, pending appeal, is ousted only to the extent of preventing the order or decree of the orphans court from destroying or impairing the subject of the appeal, or being in any degree used for that purpose.

      2. The allowance of expenses, including counsel fees, is a thing apart from the question involved in an appeal from a decree admitting a will to probate; and, as the orphans court has power to make such an allowance, even where probate is denied, such an award, if made, cannot be said to in anywise destroy or impair the subject of the appeal; and, therefore, the orphans court has jurisdiction to entertain an application for an allowance of expenses, including counsel fees, after appeal from a decree of probate and during the pendency of such appeal.
    b. A person who would be the natural object of a testator’s bounty may well make a contract against the probate of his will in the orphans court for the purpose of obtaining the judgment of that tribunal thereon, and, though unsuccessful, be allowed expenses, including counsel fees, if in the judgment of that court there was a reasonable ground of contest ; but, having taken the judgment of the court of first instance upon the question, an appeal to the prerogative court stands in a somewhat different position, and costs and counsel fees out of the estate will be denied in this court, if, in its opinion, the case made in the orphans court demonstrated there was no reasonable ground for the appeal to this court.
    4. An allowance made by the orphans court of counsel fees on a contest over the probate of a will ought not to be overthrown by this court on appeal unless it quite conclusively appears that the allowance was excessive (in which case it should be reduced), or that the contest below developed no reasonable ground for further litigation, and where the decision of the orphans court that the unavailing contest was reasonable in-that tribunal, can be upheld, it should be;- and where the judge of the orphans court who tried the cause and saw and heard the witnesses, concludes there was reasonable ground of contest there, he should be upheld, if he may be, without doing violence to the case as it appears upon the record.
    5. One provision of the statute is that the contesting party shall pay the costs and expenses of the litigation unless he offers no evidence other than that of the subscribing witnesses. Therefore, a party who would inherit in case of intestacy may, in any event, examine the subscribing witnesses without peril of costs being visited upon him; but, where he goes on with an affirmative contest, he shall not have costs out of the estate (unless the trial court concludes that there was reasonable ground therefor) ; and, although the contest may be reasonable in the orphans court, yet, if the losing party is not satisfied with its judgment and appeals to this court, as is his right, this court will determine whether or not the contest here was reasonable, quite irrespective of the decision in the court below as to the reasonableness of the contest there.
    On appeal from an order allowing- counsel fees in the orphans court.

      Messrs. Griggs & Harding, for the appellants.

      Messrs. Edwards & Smith and Mr. Raymond Dawson, for the respondents.
   Walker, Ordinary.

A caveat having been filed with the surrogate of Bergen count3r on behalf of Caroline S. W. Wimpfheimer, against the admission to probate of the last will and testament of her father, Francis L. Wandell, deceased, and the matter coming on to be heard before the orphans court of Bergen county, that tribunal admitted the will to probate, from which adjudication an appeal was taken to this court, which, after hearing, affirmed the judgment of the orphans court and denied to counsel for the appellants any allowance of counsel fees on the appeal.

After appeal taken from the decree admitting the will to probate, and while that appeal was pending in this court, counsel for the caveator gave notice of an application to the orphans court for an allowance of counsel fees and expenses to be paid out of the estate of the testator. Opposition to this award was made by counsel for the proponents on the ground that the orphans court, by reason of the pendency of the appeal, was without jurisdiction to make any such allowance, and that court, having heard the application, being of opinion that it was not divested of its authority to make such allowance b3r reason of the appeal, and being satisfied that the caveator had reasonable cause for contesting the validity of the will, an order was made awarding a fee of $2,500 to be paid to counsel for the caveator out of the estate of the testator. Appeal is now taken to this court from that order and .allowance. And the executors of the estate urge here that the order for allowance should be reversed, because (1) the orphans court was without jurisdiction to entertain the application b3r reason of the pendency of the appeal from the probate of the will, and (2) because there was no reasonable cause for contesting the validity of the will.

First. As to the jurisdiction of the orphans court: In Bull v. International Power Co., 84 N. J. Eq. 209, I held that an appeal from the court of chancery to the court of errors and appeals, while it removes the cause and the potential record, does not actually remove the physical record—that is, the papers constituíing the record remain in the court of chancery, whose jurisdiction over it' pending appeal, is ousted only to the extent of pre- . venting the decree in chancery from destroying or impairing the subject of' the appeal, or being in. any degree used for that purpose. This, I take it, is applicable as well to appeal from the orphans court to the prerogative court. My observations upon the question in the Bull Case (to be found at p. 217 et seq., citing authorities in this and other, states), give the reason for the doctrine. Rule 64 of the prerogative court expressly requires that a transcript of the proceedings before the orphans court shall be authenticated and returned to this court by the appellant. In fact, such a transcript is before me on this appeal. The physical record remains in the orphans court, where it properly belongs.

The doctrine just enunciated is not in conflict, but in consonance, with the decisions in our state bearing upon the question. Vice-Ordinary Reed, in Hill's Case, 55 N. J. Eq. 764, held (at p. 767) that the-effect of an appeal from the orphans to the prerogative court is to transfer the cause of action.into the appellate tribunal; but, from what follows, that assertion is qualified by a showing that jurisdiction of the questions involved in the adjudication and which are the subject of the appeal, and only those, are removed into the appellate court, and as to them the hands of the court below are stayed pending the appeal. In an earlier case (Brown v. Ryder, 42 N. J. Eq. 357), Chancellor Runyon, as ordinary, held that while the powers and functions of an administrator pendiente lite are suspended by the admission of a will to probate and the qualification of the executor, they revive on appeal from the decree of probate, and continue until'the determination of the appeal. This would be impossible if the appeal removed the entire record and stayed all proceedings not involved, as well as those involved, in the appeal. In the later case of Davenport v. Davenport, 68 N. J. Eq. 611, the court of errors and appeals held (at p. 612) that the .power of appointing an administrator pendente lite exists where a contest over the validity of the will is being carried on in another court, citing Brown v. Ryder, supra. Kayhart v. Whitehead, 77 N. J. Eq. 12, precipitated a contest on a will filed by an executor, who was also a devisee and legatee, against other legatees to recover or retain from their legacies, the expenses of the probate of a testator’s will, including counsel fees awarded by the orphans court. There had been an appeal in the case to the prerogative court. Vice-Chancellor Emery held that the orphans court may include counsel fees as part of the costs and expenses of the probate of a will which is contested, and he observed (at the bottom of p. 16) that the effect of the appeal was to- stay the probate and issuing of letters testamentary thereon so long as the appeal continued, and to that extent the appeal was effective against the probate. This case was affirmed in the court of errors and appeals on the opinion of the vice-chancellor. 78 Ibid. 580. These authorities make it clear that an appeal from the orphans to- the prerogative court removes only the particular question adjudicated and which is appealed from, leaving all other matters in the trial court, subject to appropriate action and proceedings.

The question of the allowance of expenses, including counsel fees, is a thing apart from the quéstion involved in an appeal from a decree admitting a will to probate. And, as the orphans court has power to make such an award, even where probate is denied, such an award, if made, cannot be said in anywise to destroy or impair the subject of the appeal. I conclude, therefore, that the orphans court had jurisdiction to entertain the application.

Second. As to the propriety of the allowance made: The statute provides, Orphans Court act (P. L. 1898 p. 789 § 197; 3 Comp. Stat. p. 8885), as follows:

“In causes respecting the probate of a will, or of a codicil to a will, if probate 'be refused, the court may order the costs and expenses of the litigation to be paid by the person or persons propounding the will or codicil, or to be paid out of the estate of the deceased; but if probate be granted, the court-shall order the party or parties contesting such will or codicil to pay the costs and expenses-of the litigation, unless it shall appear to the court that the person or persons contesting such will or codicil had reasonable cause for contesting the validity of the same, or shall not have offered on the trial or hearing any evidence other than the subscribing witnesses to the will or codicil; and in case it shall appear to the court that the person or persons contesting such will or codicil had reasonable cause for contesting the validity thereof, the court may order that the cost and exjienses of the litigation, as well on the part of such contestant or contestants as on the part of the person or persons propounding such will or codicil for probate, be paid out of the estate of the deceased.”

This section has been construed to authorize the inclusion of counsel fees as part of the expenses allowed to be awarded by that section. Kayhart v. Whiteley, supra. In Bioren v. Nesler, 76 N. J. Eg. 576, it was pointed out (at p. 579) that this practice has the express sanction of the court of errors and appeals.

In the case before me the will was admitted to probate after contest. Section 197 of the Orphans Court act provides, as shown above, that if the probate be granted, and it shall appear to the court that the person contesting had reasonable cause therefor, the court may order that the costs and expenses of the litigation, including those of the contestant, be paid out of the estate of the deceased. This does not confide the power of award to the mere discretion of the court, and, if it did, that would doubtless comprehend a sound judicial discretion, which is appealable. The statute, however, makes the award dependent upon reasonable ground existing for the contest; and the orphans court has adjudged in this case that such ground existed. While on appeal I affirmed the decree of probate and denied an allowance to the caveator-appellant, and took occasion to remark that a person who would be the natural object of a testator’s bounty may well make a contest against the probate of hi? will in the orphans court for the purpose of obtaining the judgment of that tribunal thereon, and, though unsuccessful, be allowed expenses, including counsel fees, if in the judgment of that court there was reasonable ground of contest; but, having taken the judgment of the court of first instance upon the question, an appeal to the prerogative court stands in a somewhat different position, and costs and counsel fees out of the estate will be denied in this court, if, in its opinion, the case made in the orphans court demonstrated tliere was no reasonable ground for the appeal to this court. I think awards of orphans court in this class of cases ought not to be overthrown, unless it quite conclusively appears that the contest below developed no reasonable ground for further litigation, or that the allowance was excessive (in which case it should be reduced), and where the decision of the orphans court that the unavailing contest was reasonable, can be upheld, it should be. No hard and fast rule in the nature of things can be laid down in those cases; each must very largely depend upon its own facts and circumstances, and when the judge of the orphans court, who tried the cause and saw and heard the witnesses, con eludes, that there was reasonable ground of contest, he should be upheld, if he may be, without doing violence to the case as it appears upon the record. In this case I am unwilling to say that the judge of the orphans court erred in making the allowance in question, and the order appealed from will therefore be affirmed.

The decision of this court in Hollinger v. Syms, 37 N. J. Eq. 221; affirmed, Ibid. 628, is in point. Runyon, ordinary (at p. 238), observed that the orphans court properly adjudged that the caveator had reasonable cause for contesting the validity of the will, and, therefore, awarded him payment of costs and expenses out of the estate, and that on the same ground he was equally entitled to payment of his reasonable counsel fees, but adjudged that he would be allowed no counsel fee in this court.

One provision of the statute is that the contesting party shall pay the costs and expenses of the litigation unless he offers no evidence other than that of the subscribing witnesses. Therefore, a party who would inherit in case of intestacy may, in any event, examine the subscribing witnesses without peril of costs being visited upon him, but where he goes on with an affirmative contest against the validity of the will, he shall not have costs out of the estate unless the trial court concludes that there was reasonable ground for the contest. Now, as seen, although the contest may. be reasonable in that court, yet, if the losing party is not satisfied with its judgment and appeals to this court, as is his right, this court will determine whether or not the contest here was reasonable, quite irrespective of the decision of the same question in the court below as to the contest there.

The order under review will be affirmed, with costs, in this court, to be paid out of the estate, including a reasonable counsel fee for services in this court on this appeal to be fixed on notice.


source: Caselaw Access Project

author: Buchanan, Vice-Ordinary,

license: Public Domain

text:
    In re estate of John Bottomley, deceased.
    [Decided November 8th, 1920.]
    1. In appraising (pursuant to the Transfer Inheritance Tax act) the value of shares of stock owned by decedent in a close corporation, it is not error for the comptroller to consider among the assets of the corporation an item of good-will carried on the books of the corporation and sworn to by the treasurer of the corporation—there being no evidence that such item was not in fact an asset of the company.
    2. Where a transfer of stock in a corporation is made by decedent in his lifetime under circumstances clearly indicating it to. be in lieu of a testamentary disposition, it is a transfer made in contemplation of death within the meaning of the provisions of the Transfer Inheritance Tax act, and hemca taxable.
    3. Decedent, about one year before his death, aged seventy-one. although in no expectation of early decease, contemporaneously with the making of his will, assigned and delivered to his son shares of stock constituting about three-fourths of his entire estate—the son agreeing in return to pay to decedent a life annuity equal in amount to the annual dividend on the stock.—Held, that such transfer was made “in contemplation of death,” and properly taxed.
    On appeal from transfer inheritance tax assessment.

      Messrs. Harris d Harris, for the appellants.

      Mr. Thomas II. McCran, attorney-general, and Mr. Francis II. McGee, assistant attorney-general, for the state.
   Buchanan, Vice-Ordinary,

The tax as levied by the comptroller, under Comp. Stat. p. 5301, as amended by P. L. 1914 p. 267, against the estate of John Bottomley, deceased, was $9,333.69. The present appeal therefrom is by the executor, John A. Bottomley, and presents two questions.

Dealing with these questions in the inverse order of their specification in the petition of appeal, it is claimed that the proceedings by the comptroller were erroneous, in that a portion of the property admittedly taxable, to wit, five hundred and seventy shares of stock of Highland Shaker Sweater Company was erroneously and excessively appraised at $105 per share. In this behalf it was sought to prove before this court that the true value of the stock in question was less than the value placed upon it by the comptroller, by evidence as to a certain sale of some of this stock—evidence which had not been submitted to the comptroller, and is therefore inadmissible -on tins appeal. In re Pierce, 89 N. J. Eq. 171. Furthermore, the circumstances of the sale were such as to deprive the price brought thereat of any weight as evidence of value, particularly in an attempt to override the judgment of the comptroller.

The appraisal is further attacked upon the ground that the comptroller in arriving at the value of the stock by computation of the assets and liabilities of the corporation (admittedly a close corporation) included among the assets of the corporation an item of “good-will—$26,965.19.” Appellants’ contention is that good-will is not an asset of a corporation, at least for the purpose of arriving at the value of the stock of the corporation for transfer tax purposes, and that the comptroller should not have considered it in his computation of the net assets of the company. Surely, little more than the statement of this contention is necessary to demonstrate its unsoundness. Not every corporation, of course, necessarily has good-will amongst its assets. That the corporation did have such an asset is not denie'd. The present appellant in the proofs submitted by him under oath to the comptroller listed it as’ an asset of the corporation and fixed its value as $36,348.76. The comptroller in his computation estimated its value at only $26,965.19. The question here presented is not whether good-will is taxable property under the statute as an asset of decedent’s estate (such as might arise in the case of a testamentary gift of a business carried on by • decedent as an individual in his lifetime), but whether good-will if it in fact exists as an asset of a corporation, is to be considered in arriving at an estimate of the net value of the corporate property.

Moreover, it must not be lost sight of that the error alleged is that the value of $105 per share at which the stock was appraised by the comptroller, “is in excess of the actual or true value of said stock.” It is, therefore, with the result of the comptroller’s computations that we are now concerned, and not a mere step in the method of reaching that result. Unless the result be wrong—that is, the comptroller’s valuation be in excess of the true value—an}' defect, or any number of defects in the steps taken to reach the result, are utterly immaterial. A mistake in one direction may be more than counterbalanced by another mistake in tire other direction. The burden of proof is on the appiellant and it is for him to show that the true value is less than $105 per share.

In so far as this appraisal is concerned, the tax proceedings must be affirmed.

The other issue raised is as. to■ whether or not the comptroller erred in including as taxable, amongst the property passing to the executor as an individual, five hundred and twenty shares of preferred stock and three hundred and seventy-eight shares of common stock of Highland Worsted Mills. This stock, of the total aggregate value of $343,999.16, was by the comptroller de- . termined to be a “gift, taking effect at death.”

The stock in question was owned by decedent (the owner of the majority of the stock of the company) until January, 1918, at which time he assigned it to his son, the present appellant— the assignment being plwsically completed by transfer on the books of the company and the issuance of new certificates to the son. The only testimony as to the circumstances of the transfer is that of the son. He says that'the father had taken little, if any, active part in the management of the company since his stroke of apoplexy in 1904. The son had entered the company’s employ in 1908 to learn the business. In 1909 he was made assistant manager—one Henry being the manager. In 1913 he was made manager in place of Henry, as the result of his representations to his father, and so continued till the father’s death. His salary as manager was $3,000 a year at first—for the last two or three years it was $12,000, which was a normal salary for the office.

In 1913, when the son became manager, the concern was, he says, insolvent—with a floating indebtedness of $300,000 and a credit at bank of only about $15,000. He succeeded in a financial reorganization, and establishing bank credit limited only by the bank’s capital. The company’s operation for each of the years 1910-1915, inclusive, showed large net losses; for the years 1916-1918 large net profits. He says that war conditions were little, if any, factors in these profits.

Some years prior to 1918 the father had made a gift of $25,-000 of the common stock of the company to Mr. Henry. The son, toward the,end of 1917, suggested to the father that some such similar recognition ought to be given him, in view of his low salary at the start and what he had done for the company since, and received the reply that he would think it over. In January, 1918, the father agreed to transfer, and did transfe]’, the stock as above mentioned, on the son’s oral promise to pay him for the rest of his life an annual sum equivalent to the six per cent, dividend on the preferred stock, which would be $15,-600. The father had received dividend of $15,600 January 1st, 1918, and the son forthwith commenced and continued to- pay him monthly $1,300, receiving, January 1st, 1919,’ dividend of $15,600;

The son needed his salary for the living expenses of himself and family and had no other securities from which income could be used to pay the $15,600 annuity. The father needed the $15,-600 annuity, for his annual income aside from that wa.s only some $6,000 or $7,000. This gift to the son comprised some seventy or seventy-five per cent, of the father’s property, and comprised seven-eighths of the father’s total provision for the son (that is, the son received by the will about one-seventh of the value of the stock comprised in the transfer of January, 1918).

At the same time as this gift to the son, January 6th, 1918, the decedent made a transfer of sixty shares of the preferred stock to his wife. The two gifts left him with only twenty shares of preferred stock and six shares of common. Also, at the same time, he had his will prepared (executed on January 8th, 1918), wherein he referred to the gift of sixty shares as-ample provision already made for her, and bequeathed her the remaining twenty shares of preferred stock.

He had had the stroke of apoplexy fourteen years previously, and since then had spent most of his time in travel. The son’s affidavit is that his father’s health was “good” up until the time of his death; and that both physically and mentally he “compared favorably with men of his age.” Dr. Jarrett, the family physician until 1914, says that in 1914 decedent had “recovered to a great measure from the stroke of apoplexy,” and was “allowing for the said stroke of apoplexy, in good physical and mental health, and there was no reason to believe that he did not have a considerable number of years to live.” Dr. Pechina attended decedent, 1914 to 1918, for minor ailments, and says that he was in good physical and mental health, “taking into consideration the fact that he had had a stroke of apoplexy a number of years before,” and that in his estimation decedent, in 1918, “had a considerable number of years to live.”

Decedent died April 25th, 1919, aged seventy-two.

The comptroller taxed the .stock in question as being a gift to take effect a.t death. If it was that, or if it was a gift in. contemplation of death, the tax must be affirmed. The son says it was neither; that it was not really a gift without consideration at all; that as to part, it was in consideration for his prior services to the company, and as to part was in consideration for his promise to pay the annuity equal to the dividend.

The appellant contends that there was, in any event, a complete transfer, by which the son then presently became the absolute owner of the stock; that the son did not hold the stock in trust to pay the income therefrom to the father for life, but the father was a mere creditor of the son to the extent of $15,600 per year; and that the case, therefore, is entirely different from the situation in such eases as In re Brandreth, 169 N. Y. 437, or In re Cornell, 170 N. Y. 423. Technically, this is doubtless true, but I confess I have grave doubts as to the correctness of any adjudication which should hold that the subject-matter of the gift, under such circumstances, was not taxable. It is clear, 'of course, that decedent must actually have had in mind the transfer inheritance tax statute, and did what he did in order to avoid the payment of tax thereunder. Admittedly, he would have made no such gift without getting back the income, or the equivalent, for the rest of his life. The natural way to accomplish that result would be to make a gift of the stock, with a provision that he should receive the income during his life. No reason can be imagined for a provision that he should receive an annual sum “equivalent to the income,” except the knowledge of the statute and adjudications on the part, of himself or his legal adviser, and the desire to avoid the payment of the tax. Undoubtedly, he had legal advice between the time of the son's request, in November, 1917, and the transfer in January, 1918, on this point as well as in regard to his will. Of course, the taxing measure is to be strictly construed, and there is nothing wrong in a desire or an attempt to do a tiring in a way which the statute does not make taxable, rather than in a way which is taxable. But the question remains, Has he done it in a way which is not taxable? The statute makes taxable a gift “intended to take effect in possession or enjoyment” at or after the death of donor. It is difficult to see how there could be much enjoyment by the donee of this gift, while he continued to pay out as much as he received therefrom.

However, it is unnecessary to decide this question, in view of the conclusion which I reach on the other contention. The statute imposes the tax in the case of “transfer * * * by deed, grant, bargain, sale or gift made in contemplation of the death of tire grantor, vendor or donor.”

A man in good health and only twenty-five years of age who makes his will, then and there “contemplates” his death, in one sense. Probabty, it would not be contended that a contemporaneous gift would fall within the meaning of the statute. On the other hand, a man who knows he is about to die “contemplates” his death in a very much stronger seme. A gift made by him under such circumstances falls within a class well known to the law, termed gifts cansa mortis. I think it is quite clear, from the language used by the legislature, that the intent of the statute is not restricted to this class. Considering not only the language, but the nature and design of the entire statute, and the history of the legislation upon this subject. I am convinced that a transfer made in lieu of making a testamentary disposition comes within the expressed intent of this legislative provision.

The design of this so-called inheritance tax legislation was not to interfere with a man’s own enjoyment of the property he acquired, during the time he could, and did, desire to own. and enjoy it himself—prima, facie, Ms lifetime—but to take a toll out of such property after the owner had finished with it, on its way to those to whom, under and by virtue of the laws and the governmental machinery of the state, it should then pass. The natural and logical time for the fastening of such a tax was therefore at the death of the owner—and the statutes at first taxed the property passing bjr null or intestate succession. Gifts made to take effect at the death of the grantor or donor were, in effect, only another form of testamentary disposition, and they were also taxed. Then there arose those gifts or transfers made and taking effect in the donor’s lifetime, but in fact being dispositions made by him because he had finished, either wholly or partially, with his desire for enjoyment of the subject-matter and desired to make a transfer in his lifetime which would take the place of a transfer by will and would not be subject to the tax—hence, the addition to the statute of the provision as to gifts in contemplation of death.

That the transfer now under consideration is of that character there cannot be the slightest doubt. It includes the great majority of the decedent’s property; was made when he ha.d passed the scriptural mark of three score years and ten, and, therefore, when his “contemplation” of death was that of an. event not on the horizon of life but in its foreground, and, perhaps, very near; he had had the prior apoplectic stroke which, despite his recovery, had left its effects. It was made contemporaneously with a gift to his wife, which he, in effect, characterizes in his will as a gift in lieu of testamentary disposition. Finally, he makes the gift only upon the son’s promise to pay to him for the rest of his life the same amount of money that he would have derived from the subject-matter of the gift. By so doing he had, as a practical matter, provided that the making of the transfer should have no effect upon his own income or mode of living until his death.

If such transfer is not one made in contemplation of death, and in the place and stead of a testamentary disposition, then I can conceive of nothing which would come within that category.

The son claims that it was not a gift but a transfer for consideration. In so far as concerns the then presently moving consideration—the technical consideration of the son’s promise to pay the life annuity to his father—I cannot see that this makes any difference. The statute specifically applies to transfers by "bargain” and “sale,” as well as by gift, when made in contemplation of the death of the “vendor’* or donor. Whether, if the son had paid a larger consideration than he did, it would make any difference in the taxability of the transfer, or tire amount of the tax to. be levied, it is not necessary now to decide. In the present case the consideration actually paid by him was the promise (duly kept and performed) to pay a life annuity equal to the annual income from the stock transferred to him. The stock was appraised as of the date of testator’s death, and the tax imposed upon that valuation. The practical result, therefore, is precisely as if the transfer had been by testamentary bequest.

Neither am I able to perceive that the “consideration” of the son’s prior services alters the case. There was no legal obligation resting on the father. The son performed services for the corporation and had received therefor the full salary in return for which he had contracted to perform those sendees. Those services incidentally benefited the father—and one may feel that the son well merited some recognition thereof from the father.' (On the other hand, the .son was at the same time benefiting himself, for it was naturally to be expected that he would eventually succeed to the ownership of the company, as he did.) There is, however, nothing to prove that the father would have made a gift to his son, in recognition of the services, if he had not made the transfer which he actually put through.

Furthermore, it may be conceded that if the father had not made tire arrangement and transfer which he did, he would have made a gift to the son in recognition of the services mentioned; and it may also be conceded, for the sake of argument, at least, that if he had made such a gift it would not be taxable.—still there is no possible way of determining what the amount of that gift would have been. I do not see how a tax can be computed upon theories—upon probabilities or possibilities of what might have been done; the comptroller must deal with the actuality— with what was done.

I conclude, therefore, that the tax appealed from must be affirmed.


author: Gummere, Chibe-Justice.

text:
    Ann Isabel Smith, by next friend, respondent, v. Harry H. Pond et al., executors, &c., and the First Methodist Episcopal Church of Vineland, appellants.
    [Decided June 24th, 1920.]
    Under the .act (P. L. 1905 p. 884) a bequest to trustees of a church to be held in trust as an endowment fund for the support of the church, or such benevolent purposes as the trustees should direct, the corporation being organized under the Religious Societies act of 1846, does not violate the rule against perpetuities.
    On appeal from a decree in chancery advised by Vice-Chancellor Backes, whose opinion is reported in 90 N. J. Eq. 445.

      Mr. Herbert 0. Bartlett and Mr. William E. Brown, for the appellants.

      Mr. Ralph E. Lum, for the respondent.
   The opinion of the court was delivered by

Gummere, Chibe-Justice.

The matter to be determined on this appeal is the true construction of the following bequest contained in the will of Anne Beaumont, who died in February, 1918:

“I order and direct my executors to sell at either public or private sale my home property now occupied by me, *. * * and I do hereby give and bequeath to the trustees of the First Methodist Episcopal Church of Vineland, New Jersey, the amount of the net proceed® of said sale of my home. The said trustees to told the amount received -in trust, nevertheless, as an endowment fund. Said endowment fund to be safely invested, and the net income arising therefrom shall be used for the support of the church, or such benevolent purposes as the trustees of said church shall direct.”

The executors have sold the land, but still retain possession of the proceeds of the sale pending the determination, of the contention of the complainant that the bequest is void, being in violation of the rule against perpetuities. The argument in support of the complainant’s contention is that the word “benevolent,” by its natural force, includes more tiran legal charities; that when its signification is not narrowed by tire context of the will a bequest for benevolent purposes is invalid under our decision in Norris v. Thompson, 20 N. J. Eq. 489; and that the present bequest comes within tire doctrine there enunciated. The learned vice-chancellor before whom the cause was heard considered the complainant’s contention well founded, and advised a decree adjudging that the bequest was illegal and void. From the decree thereupon entered the defendants appeal.

We cannot concur in tire conclusion reached by the learned vice-chancellor. In our opinion the rule against perpetuities has no application to tire bequest under consideration. The Methodist Episcopal Church of Vineland was organized under the Religious Societies act of 1846, its amendments and supplements. By the provisions of that .statute the trustees of the church are the corporate body. In 1905 the legislature passed an act entitled "An act concerning corporations of this state organized for religious, educational, charitable or benevolent purposes.” P. L. p. 384; Comp. Stat. p. 4300 § 14. The body of the act declares that

“every corporation of this state organized for religious, educational, charitable or benevolent purposes under the provisions of any.act of the legislature of this state, general or special, is hereby authorized to take and hold by purchase, gift, devise, bequest or otherwise, for any religious, educational, charitable or benevolent purposes whatsoever, such real or personal property, or both, as such corporation may require, oías, in any manner, may have been or may be vested in such corporation for any and all purposes; and every such corporation is further authorized to take and hold in trust for any religious, educational, charitable or benevolent purposes whatsoever, such real or personal property, or both, as, in any manner, may have been or may be given, granted, con-, veyed, bequeathed or devised to, or otherwise vested in such corporation in- trust for any of said purposes.” (The italics are ours.)

It needs no argument to demonstrate that the present bequest comes within the very words of this statutory provision. The legatee is a religious corporation of this state organized under a general act of the legislature. As such it is authorized by the express language of the statute to- take and hold.in trust for benevolent purposes such personal property as may be bequeathed to it. The use of the words "charitable or benevolent” in the statute shows that the purpose of the legislature was to validate trusts which were benevolent, although not charitable, in their nature. To hold otherwise would be in effect to expunge the latter word from the statute in disregard of one of the most important canons that the law has established for the construction of statutes and other written instruments. The reasoning of this court in Norris v. Thompson, supra, is controlling- upon this point. The right of the corporation to receive the bequest carries with it, by necessary implication, the right of the testatrix to make it.

In justice to the vice-chancellor who heard the cause it should be stated that his attention was not called to the existence of this statute by any of the counsel who took part in the argument of-the cause.

The decree under review must be reversed.

No. 61—

For affirmance—None.

For reversal—The Ci-iief-Justice, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisoi-i, Black, White, I-Ieppeni-ieimer, Williams, Ackerson—12. ■ ■

No. 62—

For affirmance—None.

For reversal—Ti-ie Ci-iiee-Justice, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisch, Black, White, HepPENHEIMER, WILLIAMS, ACKERSON—12.


author: Swayze, J.

text:
    Salena A. McCracken et al., appellants, v. Henrietta D. Gulick et al., respondents.
    [Submitted June term, 1920.
    Decided November 15th, 1920.]
    1. An extraordinary dividend on stock in the hands of a trustee should be apportioned between the income and capital of the trust.
    2. Day v. Faulks, 79 N. J. Eq. 66; affirmed, 81 iff. J. Eq. 178, approved and followed.
    On appeal from a decree of the prerogative court.
    This is an appeal from a decree of the prerogative court affirming a decree of the Essex orphans court on exceptions to an account. of the trustee under the will of Charles Dowden, who died in 1880. Among the assets of the estate were two hundred and thirty-one shares ol the stock of the American Insurance Companj' of Newark. The will directed the executors to divide the residue of the income (which included the income on this stock; into three equal parts and pay the s.ame. to the testator’s widow and his two daughters. After providing for distribution of income after the death of his widow, he directed that one-half of the principal on tire death of each daughter be paid to her children. At his death tire capital stock of the insurance company was $600,000, divided into one hundred and twenty thousand shares. There was a surplus of $748,967. In 1895 tire surplus had increased to $1,301,071. In 1907 it was $1,463,510. The capital was then increased to $750,000. The surplus, in 1909, was $1,954,999. In 1910 the capital stock was increased to $1,-000,000, and in 1917 to $2,000,000. The last resolution of the directors increasing the capital stock recited that the. company had prior to 1895 accumulated from previous earnings a surplus exceeding $1,000,000; and had ever since maintained a surplus in excess of that sum; and then provided that $1,000,000 be transferred to capital account out of surplus earned previous to January 1st, 1895, and that the surplus so transferred and the investments representing the same be considered full payment of the increase of capital stock. Meantime there had been purchased with the assets of the estate fifty-eight shares in 1907, and ninetjr-.six shares in 1909. These purchases made the,total holding three hundred and eighty-five shares. The new stock was issued; three hundred and eighty-five shares to the trustee, who has been substituted for the.executors. He filed an account in which he charged himself with the whole three hundred and eighty-five shares as income; he treated the stock as worth $18 per share and charged himself with $6,930 as if it were cash. This value exceeded the book value and must have reflected the elements which made the stock worth more than, par. On appeal the orphans court held that sixty-one shares were corpus, and the account was accordingly amended, but the charge was carried out as cash both to corpus and income at $18 per share. On appeal the decree of the orphans court was affirmed by the prerogative court.

      Mr. John R. McCracken, for the appellants.

      Mr. Jehiel G. Bhipman, for the respondents.
   The opinion of the court was delivered by

Swayze, J.

The question presented is answered by our decision in Day v. Faulks, 81 N. J. Eq. 173. In that case Vice-Chancellor Stevens had stated (79 N. J. Eq. 66) the difficulties with his usual clearness and precision and we affirmed for his reasons. It is unnecessary, therefore, to go to other jurisdictions for a rule, as far as any question presented by this case is concerned. It may be well to restate the reasons.

The fundamental principle is to carry out the intent of the testator. Clearly, when he has created a trust fund and directed that the income be paid a beneficiary for life, he intends to secure that income to the life tenant; that is the very object of the fund. Where specific stocks may, pursuant to the will or the statute regulating investments for a trust fund, be retained by the trustee, it is a fair inference that the testator meant the life tenant to have the ordinary annual income of those stocks within the limits of variation permitted to the judgment of the directors. The difficulty arises when the income is extraordinary, due to an unusual accumulation of earnings by reason of extraordinary prosperity, or when the accumulated savings of years are to be distributed. Where the dividend is extraordinary we long ago adopted the rule of apportionment between the tenant for life and the remainderman. Van Doren v. Olden, 19 N. J. Eq. 176; Ashurst v. Potler, 29 N. J. Eq. 625; Lang v. Lang, 57 N. J. Eq. 325. Whatever may be said in favor of giving extraordinary dividends to the corpus of the estate by way of more ample security for the maintenance of the trust fund, it is equally consonant with the presumed intent of the testator that the life tenant, for whose welfare he has shown himself solicitous by the creation of the trust, should receive at least some of the extraordinary dividend. It may often be made up of earnings withheld by the good judgment of the directors from distribution at the expense of the life tenant, and it is but fair that he who has suffered by the enforced abstinence should profit by the action of the directors in distributing during the continuance of the life estate the accumulations resulting from that abstinence. But for the necessity of the directors of the corporation guarding against business risks and possible future misfortunes, all earnings of the corporation made after the testator’s death might be distributed to the life tenants, since all such earnings are income on the investment as it stood at that time. As long as proper management required that these earnings be not distributed, they may be retained, but when the time conies for a distribution it is equitable that the portion of earnings after testator’s death to be distributed should go'to the life tenant. A difficulty, however, arises when the distribution takes the form of a stock dividend. As the vice-chancellor pointed out in Day v. Faulks, a stock dividend if transferred to the life tenant gives him not only earnings during his life tenancy but an interest in the original capital and earnings prior to testator’s death. A stock dividend may well be large enough to reduce the book value as well as the market value of the stock held for the corpus of the estate, because it amounts to giving each share a smaller proportionate interest in the assets of the corporation. It will certainly lessen the proportionate interest of the estate in the corporation, a result that cannot have been contemplated by the testator. His desire for the welfare of the life tenant would necessarily lead him to preserve intact the principal of the trust fund; that has been the guiding principle of our decisions. To withhold all dividends would strengthen, tire corpus of the estate, but the testator can hardly mean to. starve the life tenant for the benefit of remaindermen, whom he often has never seen. What is necessary is an equitable rule for the ascertainment of the respective interest of life tenant and remainderman in surplus which has been converted into capital stock. To use the language of the vice-chancellor, in Day v. Faulks, the company “has made a disposition” of the earnings to that extent. We still think the rule in Day v. Faulks is equitable. It gives the new capital stock to the estate, but subject to a charge in favor of the life tenant of the amount of his money used to pay for the stock, usually the par value. This gives protection to the estate against the possibility of a, reduction in the value of the shares, and it gives the life tenant the cash out of earnings accrued during his life estate which the directors have applied irrevocably to the capital of the corporation so that not even the courts can hereafter force the distribution of that cash in the form of a dividend. The practical working is shown by the decree of this court in Day v. Faulks. It adjudges “that the life tenants under said will are entitled to an interest in. said stock so received by said trustee equivalent to their share of the said earnings which it was intended to capitalize, and which were capitalized as aforesaid, and that the complainant, as such trustee, is entitled to all residuum of interest in said stock, such residuum representing capital of the company, in esse as such, when such dividend wa.s declared and therefore belonging to the principal of the trust fund; and that the life tenants are entitled to have their share of said earnings charged on said stock and so much of said stock sold as may be necessary to satisfy .the charge and so enable them to realize their interest therein.” This rule has the merit of simplicity; it protects the corpus against wasting by stock dividends, and gives the life tenant that portion of the earnings irrevocably taken from the life tenant to pay for the new stock; he loses the advantage of securing market value for the stock when it is at a premium. That market value goes to the corpus if the trustee chooses to sell to satisfy the charge. This is in harmony with the rule in Ballantine v. Young, 79 N. J. Eq. 70, which gave the value of an option to take new stock to the corpus of the trust fund.

The application of this rule to the present case results in a modification of the figures. The new shares (three hundred and eighty-five) had a total par value of $1,925. This amount only is the amount of earnings taken irrevocably from the life tenant and invested in the new stock and chargeable to the trustee as income. The record is remitted for the necessary corrections.

For affirmance—None.

For reversal—Williams—1.

For modification■—The Chiee-Justice, Swayze, Tren’chaed, Bergen, Minturn, Kalisoi-i, Black, Katzenbact-i, White, Heppeni-ieimer, Taylor, Ackerson—12.


text:
    Seacoast Real Estate Company, complainant-appellant, v. American Timber Company et al., defendants-respondents.
    [Argued June 21st, 1920.
    Decided November 15th, 1920.]
    1. A riparian owner is subject to loss by erosion and is supposed to be compensated by gain from accretion; but the erosion is by natural forces without artificial aid and the accretion must also be by natural forces, except as regulated by statute.
    2. Erosion along tidal waters extends the domain of the state; accretion narrows the domain of the state and must be limited in accordance with the statutes.
    3. A mortgagee in possession cannot charge a mortgagor1 with money unlawfully spent in an effort to acquire title (contrary to law) to land not covered by the mortgage, from which mortgagor or mortgagee may at once be legally ejected.
    4. A mortgagee in possession reclaimed tidal land by repairing a dike of the United States government and filling in between the dike and the fast land.—Held, that he could not charge the cost to the mortgagor.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Foster, and reported in 89 N. J. Eq. 293.

    This is a foreclosure. The conveyances are deeds in form but are admitted to be mortgages. The complainants were mortgagees in possession and concede their liability to account. The only questions argued in this court relate to the accounting. The difficulty arises out of the peculiar character of the mortgaged property. It is situated along the Atlantic ocean and Manasquan river at Manasquan inlet. It was, and is, subject to the inroads of the sea and river.
    In 1882 the United States government, in order to make a better outlet for the river and confine it within definite bounds, built crib work and a dike extending from the ocean along the river tó fast land at what is called “Stump' point,” near the mouth of “Short creek.” All the waters are tidal waters. At that time there was what is called a lagoon to the north of the dike, lying west of tire beach and flowed by the tide. The crib work was partly in the ocean; the dike was largely in the tide water of the inlet and of the river and parity on the sand or sedge land. Between the dike and the sand flowed the tidal water of the river and. inlet. The effect of the dike was to make land to the. north and the lagoon filled up. In course of time, the dike became much out of repair, the planking was torn off, and the water began to carry away the land back of it and to the north. The government failed to care for the dike. The tide water tying between the land and the dike increased in width, becoming, in 1913, at one point to the west of the crib work, more than sixty feet wide and increasing in width going westward toward “Stump point.” The map shows tide water between the dike and the mortgaged premises substantially all the way from the’ crib to the mouth of “Short creek” opposite “Stump point;” at any rate the tide water separated the dike from the mortgaged premises much of this distance of one thousand feet or more. The mortgagee went into possession in 1912, and in 1914 spent several thousand dollars in repairing tire dike. This expenditure proved worthless, as the work was destroyed by,severe storms. In 1915, repairs were again made to the dike which seem to have been of more permanent benefit. These cost several thousand dollars. The amount due on the mortgage before the repairs was fifteen thousand ($15,000) dollars. The repairs of the two years, if allowed, add eighteen thousand ($18,000) dollars. The vice-chancellor allowed the cost of the repairs in 1915, but denied the cost of those of 1914.

      Mr. Edmund, Wilson (Messrs. Durand, Ivins & Carton and Mr. John D. McMullin on the brief), for the complainant.

      Mr. Martin V. Bergen (Mr. DeWitt C. Robinson on the brief), for the defendants.
   The opinion of the court was delivered by

Swayze, J.

We pass over the questions discussed by the learned vice-chancellor and ably argued by counsel whether the scheme of repairing the government dike was well advised and well planned, and whether the' repairs of 1914 were well executed. We pass over also the interesting question whether what was done was merety by way of repairs to the mortgaged premises, or whether it was an improvement, with the sole remark that where the question arises with reference to riparian lands and tire effect of the work is to make new land by way of preservation of the presént area or by way of filling in, either by human labor or by natural forces, it is difficult to .say that what is done is reparation. The addition of new land increasing the area, can hardly be other than an improvement. A riparian owner is subject to loss by erosion and is supposed to be compensated by gain from accretion.; but the erosion is by natural forces without artificial aid and the accretion except as regulated by statute must be also by natural forces or by lawful acts. Otherwise there would be no limit but the length of the riparian owners’ purse. It is for this reason, among others, that the accretion ordinariN must be by imperceptible quantities. Erosion along tidal waters extends the domain of the state; accretion narrows the domain of the state and must be limited in accordance with the statutes. The state has made provision for the artificial extension of the land of the riparian owner. After the decision in Gough v. Bell, 22 N. J. Law 441. the legislature regulated the acquisition of tidal land, by filling in or docking out, in the Wharf act of 1851. Subsequently, it became important that the matter should be controlled by the riparian commissioners, and in 1891 the Wharf act was repealed and the matter regulated by an amendment of the Riparian act. P. L. 1891 p. 216; Comp. Stat. p. 4385 pl. 10. This amendment enacted that “without grant or permission of said commissioners no person or corporation shall fill in, build upon or make any erection on or reclaim any of the lands under the tide waters of this state.” Then follows a provision as to abatement of any purpresture by the court of chancery or by indietment. Section 12 of the supplement of 1869 to the original Riparian act, now printed as placitum 19, on page 4389 of the Compiled Statutes, authorizes the riparian commissioners to bring ejectment in the name of the state against persons and corporations trespassing upon or occupying the lands of the state under water or heretofore under water. No riparian grant is shown in this case. The case presents the situation of a wrongful seizure of lands of the state for the purpose of extending the lands of the riparian owner. But for the fact that the repairs were made to a stracture placed in tide water by the federal government for the improvement of navigation, the repairs would be a purpresture. Although the federal government had the right to build the dike, the state still retained its title to the submerged soil, subject to the servitude in respect of navigation, created in favor of the federal government by the constitution. South Carolina v. Georgia, 93 U. S. 4; Shivley v. Bowlby, 152 U. S. 1; Gibson v. United States, 166 U. S. 269. Citations can readily be multiplied. Whether the work done amounts to a purpresture under the circumstances of this case may be a question. It seems to have been without warrant from the federal government and was an unlawful interference with its property. So far as it resulted in making land of what would otherwise have been tidal land of the state, it subjected the mortgagees in the present case to an action of ejectment. The -state’s title cannot be acquired in that way. The land remains the property of the state until acquired by the statutory method.

The question presented, therefore, is the narrow one, whether a mortgagee in possession can charge a mortgagor with money unlawfully spent in an effort to acquire title contrary to law to 'land not covered by the mortgage, from which the mortgagor or mortgagee may at once be legally ejected. It is too plain for argument that the mortgagor can at most only be charged with lawful expenditures of the mortgagee and cannot be charged with the cost of a tortious attempt, at best, speculative, to acquire land adverse to the state itself. The courts cannot be expected to lend their aid to deprive the government which has created them of its property when seized by force and without right. Whether or not some of the property seized was already upland is of no moment when it comes to the tidal land. The dike was a single whole; like a chain, the failure of a link destroys its value. The cost of the work, whether that of 1914 or that of 1915, is not chargeable to the mortgagor. Let the decree be reversed, with costs, in this-court, and the record remitted to the court of chancery for further proceedings in accordance with this opinion.

As to the costs and counsel fees, there is a difficulty. The complainant succeeds in its foreclosure, and to some extent is entitled to costs; it fails on the main question litigated, and ought not to be allowed the additional costs and counsel fees made necessary by the accounting. We are in. no position in this court to make an equitable decree as to the costs in the court of chancery. The question -can readily be solved by the chancellor.

What we have said controls tire decision on the appeal of the Seacoast Beal Estate Company, which is not aggrieved by the decree.

No. 5—

For affirmance—Bergen, Ivalisoh, White—3.

For reversal—The Chief-Justice, Swayze, Trenci-iard, Minturn, Black, Ivatzenbact-i, Heppeni-ieimer, Williams, Taylor,, Aokerson—10.

No. 73—

For affirmance—The Ci-iiee-Justice, Swayze, Trenciiard, Bergen, Minturn, Black, Katzenbaci-i, Heppent-ieimer, Williams, Taylor, Aokerson—11.

For reversal—Ivalisoh, White—2.


author: Trenci-iard, J.

text:
    Margaret T. J. Watt, surviving executrix and trustee under the will of Emeline H. Jordan, deceased, complainant and appellant, v. The Atlantic Safe Deposit and Trust Company, executor and trustee under the will of Albert M. Jordan, deceased, defendant and respondent.
    [Argued June 16th, 1920.
    Decided November 15th, 1920.]
    1. Generalise speaking, the ultimate liability for the funeral expenses of the wife, as between the husband and the wife’s estate, rests upon the husband if he is solvent, and if he pays the expenses, he cannot) recover against the wife’s estate; but where the wife by will directs the payment of her funeral expenses out of her estate, the ultimate liability will fall upon her estate rather than upon the husband, and he is entitled to reimbursement from her estate in case he has paid such charges.
    2. Where a will makes a legacy a charge upon the income of the estate, and imposes upon the executor the obligation to make payment thereof, such payment when made is impressed with the character of a payment made under and pursuant to the will, in the absence of clear and convincing evidence to the contrary.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning.

      Messis. Bourgeois .& Coulomb, for the appellant.

      Mr. William M. Clevenger, for the respondent.
   The opinion of the court was delivered by

Trenci-iard, J.

This suit was originally begun in the Atlantic circuit court, but upon, the jurisdiction of tire circuit court being questioned, the cause was transferred to the court of chancery, pursuant to chapter 233 of P. L. 1912 p. 417, and was treated in that court, without objection, as a bill by an executor against the executor of the deceased co-executor for an accounting touching liability of the deceased co-executor to decedent’s estate at his death.

The circumstances were as follows: Emeline Ii. Jordan died October 29th, 1911, leaving a last will and testament in which she named her husband, Albert M. Jordan, and her daughter, Margaret T. J. Watt, as executors and trustees. By the will she directed, among other things, that out of her estate her executors should first pay her funeral expenses, and secondly, should pay to her sister, Mary A. Gibson, “an annuity of $240 per annum during her life, said sum to be paid in equal monthly payments.” Mr. Jordan and Mrs. Watt qualified as such executors and trustees. Mr. Jordan died November 11th, 1916, leaving a last will and testament in which he named the Atlantic Safe Deposit and Trust Company as his executor and trustee. During his lifetime, Mr. Jordan, following the directions of his wife’s will, paid her funeral expenses-, amounting to $355.60, and also paid to her sister, Mary A. Gibson, the sum of $240 yearly from her death until his death, or $1,200 in all.

The court of chancery held that the $355.60 paid by Mr. Jordan for his wife’s funeral expenses should be charged against Mrs. Jordan’s estate, and not against Mr. Jordan, her husband. This forms the first ground of appeal.

The court further held that under the testimony the payment by Mr. Jordan to Mrs. Gibson of $240 a year for the five years following his wife’s death, amounting to $1,200,’ should be charged against the estate, and not against Mr. Jordan individually. This determination forms the second ground for this appeal.

We are of the opinion that the decree is right.

We think that the funeral expenses were properly charged to the wife’s- estate.

Generally speaking, in case of the death of a. married woman, the duty to bury her and discharge the expense of so doing devolves upon her husband if he shall survive her. Gould v. Moulahan, 53 N. J. Eq. 341, and cases there cited. In that case it was rightly held that, while the husband is primarily liable, the wife’s estate is secondarily liable; and, if the husband is insolvent, and the wife’s personalty is insufficient, the holder of a claim for such expenses may have the wife’s real property sold for the payment of the claim. That implies that the ultimate liability, as between, the husband and the wife’s estate, rests upon the husband if he is solvent, and that, if he pays the expenses, he cannot recoup against the wife’s estate. No doubt, ordinarily, that is so. Smyley v. Reese, 53 Ala. 89; Staple’s Appeal, 52 Conn. 435; Brand v. Brand, 109 Ky. 1036; Willis v. Jones, 57 Md. 362; Galloway v. McPherson, 67 Mich. 546; Walsch’s Estate, 166 Pa. 204.

But where, as in the present case, the wife by will' directs the payment of her funeral expenses out of her estate, the ultimate liability will fall upon her estate rather than upon the husband, and the husband is entitled to reimbursement from her estate in case he has paid such charges. In re Skillman, 146 Ia. 601; Willeter v. Dobie, 2 Kay & J. 647; Jackson v. Westerfield, 61 How. Pr. 399; Re Stadtmuller, 110 App. Div. 76; 96 N. Y. Supp. 1101.

Also, we think that the wife’s estate was rightly charged with the $1,200 paid by Mr. Jordan to Mrs. Gibson.

It was, manifestly, a just claim. We have pointed out that Mrs. Gibson’s legacy was, by the terms of the will, made a charge upon the income of the estate. The payments made to her by Mr. Jordan thus enured to the benefit of Mrs. Jordan’s estate. The appellant contends that the payment was a voluntary personal contribution upon the part of Mr. Jordmi to his wife’s estate. But to this it is a sufficient answer to say that the evidence does not satisfjr us that it is so. Where, as here, the will makes a legacy a charge upon the income of the estate, and imposes upon the executor the obligation to malee payment thereof, such payment when made is impressed with the character of a payment made under and pursuant to the will, in the absence of clear and convincing evidence to the contrary. •

The decree below will be affirmed, with costs.

For affirmance—The Chief-Justice, Swayze, Trenciiard, Bergen, M'inturn, Kalisoh, Black, Katzenbaci-t, Heppeniteimer, Williams, Taylor, Gardner, Ackerson—13.

For reversal—None.


author: Bergen, J.

text:
    Frank Grover and Clarence Grover, partners, trading as Grover Brothers, complainants-respondents, v. Edward S. Woodward, defendant-appellant.
    [Argued June 17th, 1920.
    Decided November 15th, 1920.]
    1. The mere bringing of a suit at law in a foreign jurisdiction to enforce an alleged legal claim is not using the process of such courts to harass and oppress the defendant in that action; there must be something more to justify a court of equity in enjoining the prosecution of the suit in the foreign jurisdiction.
    2. The institution of a suit by -process of attachment, when allowed by the laws of the state where the action is instituted, cannot of itself be said to be an oppressive use of process, for it merely gives the plaintiff in such an action a lien on the property of the non-resident debtor, which is not legal oppression.
    On appeal from an order of the court of chancery advised by Vice-Chancellor Buchanan, whose opinion is reported in 91 N. J. Eq. 250.

      Mr. Aaron V. Dawes, for the complainants-respondents.

      Mr. Patrick H. Harding, for the defendant-appellant.
   The opinion of the court was delivered by

Bergen, J.

This is an appeal from an order made by the chancellor, on the advice of Vice-Chancellor Buchanan, restraining defendant from prosecuting an action .at law in the courts of the State of Pennsylvania brought against complainant. The matter was heard and determined on bill of complaint, affidavits in support of it, and answering affidavits submitted by defendant, which disclose that both parties are residents of this state, the complainants doing business at Hightstown, New Jersejr, and defendant in the city of Philadelphia, Pennsylvania; that complainant contracted to sell two carloads of potatoes to’ defendant to be placed on the cars at Hightstown, consigned to defendant at Detroit, Michigan; that defendant paid for the potatoes within four days, but discovering on arrival at Detroit, as he alleges, that the potatoes were not according- to contract, rejected them, notified complainant, and sold them for less than the contract price, and to recover the loss instituted a suit in a proper court of the State of Pennsylvania; that it was commenced by a writ of attachment levied against money due to complainant by one of their debtors. This action was restrained by the order appealed from. The vice-chancellor recognized the rule laid down in Standard Roller Bearing Co. v. Crucible Steel Co., 71 N. J. Eq. 61, "that where an action at law is pending, in which there is a complete defence, this court will not assume jurisdiction and withdraw the question from the law court, unless the case involves some equitable element which it cannot apply, and which must be applied in order that complete justice may be done, or unless the case discloses that such relief as the party is entitled to cannot be afforded by the court at law, or without the intervention of this court with its injunctive power,” but determined that, as in the case last cited, the defendant was using the process of the courts of law to harass and oppress the complainant. We are of opinion that the vice-chancellor was not justified in that conclusion. The mere bringing of a suit at law in a foreign jurisdiction to enforce an alleged claim is not using the process of such court to harass and oppress the defendant in that action; there must be something more to justify the court of equity of this state to enjoin the prosecution of the suit in the foreign jurisdiction. The vice-chancellor was of opinion that the defendant’s action is inequitable, in that he oppresses complainant by obtaining an unconscionable advantage bjr an attachment suit, and that there is oppression in that the defendant' brought the suit in Pennsylvania to avoid, the policy of this state relating to attachment suits. But, manifesto, the form of process used in the procedure allowed by the laws of the state where an action is instituted cannot of itself be said to be an oppressive use of process, nor would the fact that the suit was commenced by attachment make any difference, for it merely gives the plaintiff in such an action a lien on the property of the non-resident debtor, which is not a legal oppression any more than the issuing of- a summons would be in those of our sister states where the issuing o'f the original process creates a lien. The form of the process, and lien which it gives, does not prevent the defendant in such suits setting up any legal defence. In the present case the defence is entirely a legal one and does not require any equitable relief. This is not a case of multiplicity of suits, or the impounding of funds out of proportion to the amount of the debt, from which an intent to oppress and harass may be inferred, but it is a single suit instituted in a forum within a reasonable distance of the residence of the complainant, the defendant in the action. In Standard Roller Bearing Co. v. Crucible Steel Co., supra, Chancellor Magie, in writing the opinion, said: “The complainant, moreover, has a large and valuable plant in the State of Pennsylvania. Defendant’s claim could have been presented bjr attachment in that state.” In that case, as in the present, both complainant and defendant were citizens of New Jersey, and the intimation there is that if the attachment had been issued in the State of Pennsylvania there would have been no equitable ground of interference. The notion of the vice-chancellor that •because of the congested condition of the calendars of the courts of Philadelphia, there will be a delay in the trial of the case, is not of itself a sufficient reason for equitable interference upon the ground that the suit will oppress or harass the complainant. We have no means of knowing how soon the case will be tried in the court of Pennsylvania, and without something more definite it ought not to be considered. For the reasons we have given, we are of opinion that the restraining order should be reversed and set aside, and the defendant allowed to proceed with his action at law, and it is so ordered.

For affirmance—None.

For reversal—-The Chief-Justice, Swayze, Parker, Bergen, Minturn, Kalisch, Black, Katzenbaci-i, White, HepPENHEIMER, WILLIAMS, TAYLOR, AcKERSON-13.


author: Per Curiam.

text:
    Joseph D. Bardo, respondent, v. Elizabeth Bardo, appellant.
    [Decided October 21st, 1920.]
    On appeal from a. decree, of the court of chancery advised by Vice-Chancellor Lewis, whose opinion is reported in 92 N. J. Eq. 106.

      Mr. Elmer W. Demurest, for the respondent.

      Mr. Frank G. Turner, for the appellant.
   Per Curiam.

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

For affirmance—The Ci-iiee-Justice, .Swayzé, Trenchard, Bergen, Minturn, Kalisoi-i, Black, Katzenbach, White, Heppenheimer, Williams, Taylor, Ackerson—13.

For reversal—None.


text:
    David Dobbin, respondent, v. Lena Plager, appellant.
    [Decided October 21st, 1920.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, who filed the following opinion:
    “This suit is to compel the defendant to convey to the complainant her property 216 Prince street, Newark, for $11,000 cash, in accordance with her agreement in writing to that effect.
    “The answer is a categorical denial of the allegations of the bill, with the qualification that the defendant denies ‘that she voluntarily and consciously agreed to sell the property for1 $11,000.’
    “The meaning of this ambiguous phraseology was brought out at the trial where it was set up- that the purchase price agreed upon was $15,000, and that when Mrs. Plager signed the contract it was with the understanding that that, and not $11,000, was stipulated. Counsel introduced considerable testimony in support, but did not press this defence on the argument, feeling, I assume, that he had failed in his proofs. That he had failed was obvious, as I shall proceed to point out:
    “Max Ginsberg, a real estate agent, negotiated the .sale. Dobbin was not his first prospect. Between the price demanded by Mrs. Plager of $13,000 or more [Mrs. Plager says $16,000], and the offer by Dobbin of $10,000, he effected a compromise at $11,-000. Ginsberg, Mrs. Plager and a Mrs. Frank, a friend of Mrs. Plager, went to the law office of Lubetkin & Greenbaum to have the contract drawn. They waited for some time in the office before Mr. Lubetkin came in. He says that after the object of their visit was explained to him he told them Mr. Dobbin had to be present, and he was telephoned for and came. Then ensued considerable haggling, over the date of possession, the removal of a tenant, the division of the taxes, the commission of the agent, the amount of the deposit, and the like, but there was no question as to the price being $11,000. He says he got his instructions from all there—Mrs. Plager, Ginsberg and Dobbin—that he correctly incorporated them in the contract, read it to them, explained it in Yiddish—their mother tongue—and, assuming that they understood, had them sign in duplicate. He also drew a contract for the agent’s commissions, two and one-half per cent, and a notice to the tenant to quit, which Mrs. Plager took away, together with a duplicate of the contract of sale and Dobbin’s check for $300, the deposit. Before going she paid Lubetkin $3, her share of his charges. Greenbaum, his partner, and Dobbin and Ginsberg corroborate him.
    The composite story of Mrs. Plager and her children runs about this way, although it clashes severely in spots: Ginsberg represented that he was the buyer; that he wanted the place for a shop and was willing to pay $15,000; that the contract was already prepared when she got to Lubetkin’s office; that she signed it, believing it to be with Ginsberg, not with Dobbin, and that the consideration stated was $15,000; that Dobbin was not known to her in the matter—was not present during the negotia.tions nor at the signing of the contract; that she did not see him sign; that he came into Lubetkin’s office as she passed out, and that she did not know that the $300 cheek was drawn by him. When she got home one of her daughters read the contract, and then she realized she had been swindled. The next day her tenant took the check to Dobbin with a request from her that he take it back and surrender the contract. He refused and after a few days Mrs. Plager cashed the check. She first consulted counsel two months later.
    “Much, if not all, of this story is pure fancy, and its inspiration and development are not obscure. Mrs. PlagePs children were opposed to her selling the home, and upon her return with the contract, and being told what had been done, they raised a rumpus—some because the price was not to their liking and others because she sold at all—and to placate them and restore harmony she sought to hare Dobbin release her. There was no thought at that time of having been swindled out of $4,000 by a false contract, for had there been, I- feel quite sure Mrs. Plager’s course would have been swift and drastic, far from the mild appeal to Dobbin’s generosity. She made no complaint to either Lubetlrin or Dobbin that they had cheated her—a most natural thing to do if she had been. She and some of the children say they charged Ginsberg with crookedness in the sale, which he denied, but even at that, they do not claim to have alluded to deception by falsification of the contract.
    “If the scenes of hysteria and wailing, so dramatically described by the family as having followed Mrs. Plager’s return with the contract, actually took place, of which I have grave doubts, they were due principally to the shock the children experienced when they learned that their mother had executed the threat she had made to sell out, and the thing they accommodatingly characterize as swindling was the price over which 'they affected astonishment and disappointment. They agitated themselves into a feeling that their mother had been outdone in the bargain, a feeling which the mother, readily assimilated, or, rather, simulated, and which she did not hesitate to reinforce at the trial with statements of facts which she must have felt were unfounded. Her claim that the contract was prepared before she arrived at-Lubetkin’s office, her denial of the happenings in his office, as related by the four men present, and her repeated assertion that Dobbin did not participate in the negotiations, was not to her knowledge the purchaser and did not sign the contract in her presence, were all consciously made, knowing that they were untrue. The untruth of her statement that she passed Dobbin at the door coming in as she was going out of Lubetkin’s office was self-evident, for she carried with her the contract Dobbin had just signed, which she afterwards gave to her counsel, who produced it at the trial on call.
    “Mrs. Frank, wh.o was taken along by Mrs. Plager as a companion and witness, and who undoubtedly knew what happened when the contract was made, was not summoned to the trial. It was saicl she was sick, and I adjourned the hearing so that her testimony could be taken. She was not produced, although available, and the inference is that her testimony would have been unfavorable to the defendant’s claim that she had been deceived into selling for $11,000.
    “The deposit of the check after the unsuccessful appeal to Dobbin is significant of Mrs. Plager’s belief in the binding force of the agreement at that time.
    “Whether the price of $11,000 had been, agreed upon previous to or upon the arrival of Mrs. Plager, Ginsberg and Mrs. Frank at Mr. Lubetlrin’s office is not clear’, but I have no doubt that that sum was the consideration upon which the minds of the contracting parties ultimately met, and that the writing expresses the things Mrs. Plager and Dobbin agreed upon. Nor have I the least misgivings of Mrs. Plager’s ability to take care of herself in her dealings with the men, or that advantage was taken of her. She is illiterate, it is true, but she thinks and talks in money keenly, as is traditional of her race, and she is experienced in the ways of business. The sum which she agreed to take was a fair price for her property, as the testimony shows.
    “On the argument, Mr. Bradner, counsel for defendant, advanced three points not raised by the answer nor intimated during the course of the trial'—(1) that the minds of the parties did not meet; (2) that there was overreaching in procuring the' contract; (3) and his chief point, that there is an adequate remedy at law, and jurisdiction, therefore, should not be exercised.
    “1. First, that the minds of the parties did not meet, notwithstanding the formal contract in writing, is based upon a bit of testimony culled from Mrs. Plager’s jargon, as follows:
    “ ‘Mr. Ginsberg give me the check and give me the paper to sign—I signed one paper—and I took the check and told him, Mr. Ginsberg, “I don’t know what about this. I will come home and if it is not right I will give it to my children to read it. If my children tell me something is wrong I will give you back the deposit.” Efe told me “all right,” and ho started to laugh at me.’
    “His claim is, that as this was not specifically denied, it must be accepted as true and conclusive that the agreement was not to be binding upon his client until approved by her children. The recital by the other witnesses, present at the execution of the contract, of what there occurred—and I must assume that they told all—is a positive and complete refutation. In the quest for the truth courts are net bound to accept as verity statements of incidents not directly denied, if the body of the testimony refutes them.
    •‘Mrs. Plager’s testimony just quoted was not adverted to by her counsel during the course of the trial as of the significance he attributed to it on the argument. The impression made upon me when given, and the interpretation I then placed upon it, was, that as Mrs. Plager could not read, and having signed the contract upon representation of what it contained, if the contract was not written as read and explained to- her., and as to this she was to be informed by her children, then the check was to be returned and the contract at an end. It was in. that sense of ‘wrong’ that I understand her testimony, and I am quite confident that that was also the understanding of counsel

      “2. There was no overreaching. It seems that Mrs. Plager, shortly before, or about the time of the sale, had difficulties with some of her children, who were living with her, and had threatened to sell out so as to get rid of them. ' There is no evidence whatever that either Ginsberg or Dobbin knew of this, nor does it appear that Mrs. Plager acted impulsively, or that her motive was other than the good price she was to receive. I do not mean to imply that any of these things would be ground to relieve her of her bargain or to refuse its enforcement.
    “3. The jurisdiction of equity to specifically enforce contracts for the sale of land is so firmly established in this state, and so universally acknowledged by bench and bar, that sporadic attacks of the undaunted upon its exercise, because there is an adequate remedy at law in damages, may be at this late date viewed with perfect complacency.”

      Mr. Benjamin M. Weinberg, for the respondent.

      Mr. Frank E. Bradner, for the appellant.
   Per Curiam.

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

For affirmance—Ti-ie Chief-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisci-i, Black, Katzenbach, White, Heppeni-ieimer, Williams, Taylor, Gardner, Ackerson—15.

For reversal—None.


text:
    George D’Annunzio, respondent, v. Bridget D’Annunzio, appellant.
    [Decided October 21st, 1920.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson, whose opinion is reported in 91 N. J. Eq. 186.

      Mr. Anthony Boiti, for the respondent.

      Mr. Edward M. Salley, for the appellant.
   Per Curiam.

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

For affirmance—The Ci-iiee-Justice, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisci-i, Black, Katzenbacii, White, PIeppeni-ieimer, Williams, Taylor, Gardner, Ackerson—15.

For reversal—None.


text:
    McClung Drug Company, appellant, v. City Realty and Investment Company et al., respondents.
    [Decided October 21st, 1920.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Baekes, whose opinion is reported in 91 N. 3. Eq. me.

      Messrs. Wight, Wight £ Golenboch, for the appellant.

      Mr. Thomas Brotan and Mr. Leo Goldberger, for the respondents.
   Per Curiam.

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

For affirmance—The Ci-iief-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisci-i, Black, Katzenbacii, White, Williams, Taylor, Gardner, Aokerson—14.

For reversal—None


text:
    Lehigh Valley Railroad Company, respondent, v. John E. Andrus, appellant.
    [Decided November 15th, 1920.]
    On appeal from an order of the court of chancery advised by Vice-Chancellor Backes, and reported in 91 N. J. Eq. 225.

      Mr. Edward 0. Stanley and Mr. JohnR. Hardin, for the appellant.

      Mr. Robert J. Bain and Mr. David A. Newton, for the respondent.
   Per Curiam.

The order appealed from is one denying a motion of the defendant to dismisa the bill of complaint and directing answer within twenty days. The ground upon which the motion was rested are (1) that the bill discloses no cause of action; (2) that the bill fails, to state facts sufficient to constitute any cause of action; (3) that the bill does not entitle complainant to the relief prayed for therein, or any other relief in the premises.

The material facts exhibited- in the bill are as follows: The complainant is in the occupation, under a lease, of certain lands in Bayonne. The original lease is dated June 5th, 1889, and made between Andrus, the defendant,' and the owner, Sheehan. It was afterwards assigned to -the complainant. The term of the lease is sixty years. The annual rental was made payable quarterly in advance, the amount for the first twenty years being fixed at $4,250. The lease then provides that the annual rent for the succeeding twenty years should be fixed by arbitrators, each party naming one, and, in case they should fail to agree, they are required to select an umpire, and the award of any two of these three, signed and delivered to the parties on or before the expiration of the first twentjr years of the term is made binding upon them. When the time came for fixing the rental for the second twenty years the parties supplemented the original lease by providing that the arbitrators should fix the rental for the succeeding twenty years in ten-year periods. Tins was done, and for the first ten-year period it was fixed at $7,500 per annum. When the time came for the fixing of the rent for the next ten-year period arbitrators were appointed, but they were unable to agree, and so the selection of an umpire became necessary. The arbitrators, however, failed to make such selection, and so the arbitration fell through. The purpose of the bill is to have the court of chancery fix the rental for this ten-year period. The contention on the part of the defendant that the court of chancery is without jurisdiction to grant the relief sought is rested largely upon the fact that the lease contained a provision that

“If for any cause a valid award fixing rentals stall not be made and delivered at or within the times above limited, then the landlord may recover by action from time to time, at law or in equity, a fair quarterly compensation for the use and occupation of the demised premises.”'

The argument is, that this provision of the lease furnishes the only method by which the amount of rental, payable under the lease, in the event of the failure of the arbitration scheme, can be determined. The learned vice-chancellor reached the conclusion that, on the facts recited, a cause for equitable relief was exhibited; and that the provision of the lease appealed to by the defendant was no bar to the exercise of that relief. We concur in the conclusion reached by him and adopt his opinion on the question of jurisdiction.

The order appealed from will be affirmed.

For affirmance—The Chibe-Justice, Swayze, Trenoi-iard, Bergen, Minturn, Kaltsch, Katzbnbaci-i, White, Heppeni-ieimer, Williams, Taylor, Aokerson—12.

For reversal—Black—1.


text:
    Marie Schmidt, respondent, v. Albert A. Raphael, trustee, et al., appellants.
    [Decided October 21st, 1920.]
    On appeal from,,a decree of the court of chancery advised by Vice-Chancellor Lewis, and reported in 91 N. J. Eq. 386.

      Messrs. McDermott & Enright, for the respondent.

      Messrs. Dam, Tamblyn & Golyer, for the appellants.
   Per Curiam.

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

For affirmance—Ti-ie Ci-iiee-Justice, Swayze, Trenchard, Bergen, Minturn, Kalis ch, Black, Katzenbaci-i, White, Heppenheimer, Williams, Taylor, Gardner—13.

For reversal—None.


text:
    August Stedenfeld et al., appellants, v. Lillian Stedenfeld, respondent.
    [Decided October 21st, 1920.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Fielder, who filed the following opinion:
    “The bill of complaint calls for a construction of the will of Almeda Stedenfeld, the defendants joining in the prayer of the bill. The following is a copy of the whole -will, except the date and attestation:
    “ T, Almeda Stedenfeld, being of sound mind, memory and understanding, do make and publish this my last will and testament in manner following, that is to say.
    “ ‘The one half (%) of my estate is to go to my son William S. Stedenfeld, and if he should die before his wife, she is to get One Hundred and Fifty Dollars ($150.00) only from this one half (%) of the estate the balance to be divided equally between my stepson August Stedenfeld and my two (2) granddaughters Almeda and Anna Marie Stedenfeld.
    “ ‘To my stepson August Stedenfeld I leave one quarter (%) of my estate.
    “‘The balance one quarter (%) of the estate to be divided equally between my two (2) granddaughters Almeda and Anna Marie Stedenfeld and my cousin Lena Lartz, share and share alike.
    ‘Any cash left by me outside of the estate, after all bills, etc. are paid, to go to my son William S. Stedenfeld.
    “ ‘If there should be any disagreement at the reading of this will, the party disagreeing is to receive nothing, their share to be divided equally between the others named in this will, share and share alike, with the exception of Williams wife, she to receive only one hundred and fifty ($150.00) Dollars, she to receive this if she outlives her husband, and should be alive when this will is read.
    “ ‘All my household effects, furniture, etc. I leave to my son William S. Stedenfeld he can sell or dispose with them the way he thinks best.'
    “All the beneficiaries named in. the will, survived the testatrix and her son William S. Stedenield, died more than a year and a half after her death, leaving a will duly probated, devising and bequeathing his whole estate to his widow, the defendant Lillian Stedenfeld, who- survived him.
    “The complainants cláim that under the will of Almeda Stedenfeld, an absolute estate did not vest in William S. Stedenfeld, but that he took a fee subject to be divested by his death at any time before his wife, while the defendant Lillian Stedenfeld claims that the words ‘if he should die before his wife’ refer to the husband’s death in the lifetime of the testatrix, and that the ordinary rule favoring the immediate vesting of estates must be applied in the construction of this will.
    “There is no provision in the will expressly defining the quantity of the estate which the several beneficiaries shall take, but under Oomp. Sicá. p. 5878 § 86, they all take absolute estates in fee, except only William S. Stedenfeld, should the words just quoted qualify his estate.
    “Tire mind of the testatrix was concerned with the division and distribution of her whole estate and was naturally fixed upon the- situation with reference to the objects of her bounty, as it would exist after her death. Nearly all the estate she had to dispose of came from her deceased husband. William S. Stedenfeld was her only, child, hut there were her husband’s descendants by his first wife to consider, namely, his son, August, and his grandchildren, Almeda and Anna Marie, daughters of his deceased son Daniel. She evinces an intention to divide her whole estate equitably among those who would naturally be entitled to it, showing a not unnatural preference for her own son, by giving him half of her estate. Standing by itself, without limiting words, the gift to him is absolute without a doubt. Did the testatrix, by the use-of the words ‘and if he should die before his wife,’ intend to refer to the estate she had given her son and qualify or limit it to the one for whom she had a natural preference, when she attached no limitation to the estates she gave to those who were not of her blood ? There is nothing in the context of the will, or the evidence, which discloses a reason for such intention, and it is my opinion that when she used the words in question she was not referring to or limiting the devise to her son, but that she was making a gift to her daughter-in-law in ease William should predecease his mother. What she had in mind was a disposition of her estate in case William should predecease her, because -without this provision and a bare devise to William, he having no children, his share would lapse and pass by the statute of descent. By the lapsing of this share, William’s' wife would receive nothing and she wanted to be sure her daughter-in-law would be remembered, and that if her son did not live to take, her estate would go to her step-son and stepgranclchilclren. That the testatrix meant death in her lifetime is evidenced by the subsequent clause relative to what should-happen in case of a disagreement or contest over her will,'which, of course, refers to a disagreement immediately following her death. This clause must contemplate William being dead at that time, for if he were not, then his wife could not receive the $150, which the testatrix says shall be hers and the testatrix adds, by way of explanation, ‘she to receive this if she outlives her husband and'should be alive when this will is read.’ If these events occurred in the sequence in which the testatrix named them, William must be dead when the testatrix dies and when her will is read. I cannot believe that it was the intention of the testatrix that if William survived his wife by one day, his estate would be absolute, but if he predeceased her by one clay, his estate should be held to be a contingent one.
    “The tendency of the courts is to be cautious, in applying to one will the same construction of words given by one court in construing some other will, but rather to give a construction in each case to the particular form of language used and consideration to the circumstances which surround the testator when the particular will to be construed was made. Hewitt v. Green, 77 N. J. Eq. 345, 358. With this in mind, reference is made to the following decisions of our courts which construe somewhat similar language to mean death in the lifetime of the testator: Herbert v. Tuthill, 1 N. J. Eq. 141; Beatty v. Montgomery, 31 N. J. Eq. 334; Burclge v. Waiting, 45 N. J. Eq. 10; Brown v. Lippincott, 49 N. J. Eq. 44; Dawson v. Schaefer, -53 N. J. Eq. 841, 344; Dranow v. Sherry, SO N. J. Eq. 448- In Fischer v. Fischer, 75 H. J. Eq. 74, a will containing words almost identical with the words in the present will, was construed and the rule was recognized that where a bequest or devise is made to one person with a gift over ‘in case of his death/ or similar words, thejr must be held to mean, in case of death before the death of the testator, unless the context shows that another point of time was intended. I conclude, therefore, that William S. Stedenfeld took a vested interest in one-half of what the testatrix called her ‘estate/ which passed under his will to his widow.
    “I also find that by her ‘estate/ the testatrix meant all the real and personal property which came to her under the will of her husband, except the household effects and that the cash left by her ‘outside of the estate/ means such cash as she kept, separate from the ‘estate/ either in her possession or on deposit in bank. All household effects belonging to the testatrix, such as furniture and other household goods and chattels and cash in possession and in bank, she gave to William S. Stedenfeld absolutely, and this personal property will also pass under his will.”

      Mr. Henry P. Bedford, for the appellants.

      Mr. Joseph S. Smith, for the respondent.
   Per Curiam.

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

For affirmance—The Chibe-Justice, SwayiZE, Trenci-iard, Bergen, Minturn, Kalisci-i, Black, Ivatzenbaci-i, White, Heppeniieimer, Williams, Taylor, Gardner—13.

For reversal—None.