author: Buchanan, Vice-Ordinary.

text:
    In the matter of the estate of Joseph Hirsch Schwieller, deceased.
    [Decided July 24th. 1923.]
    Testator executed ¡i testamentary draft in English, and immediately afterwards one in Yiddish, believing the English draft to be a translation of ihe Yiddish draft. In fact there was a material variance. His reason for executing the English draft was because of fear that a will in Yiddish might not be legal.—Held, that there was no evidence of the statutory publication or declaration of the English draft as a will; that testator’s intent as to its being his will was conditional, at most; that such intent was based upon misrepresentation to him that it was essentially the same as the Yiddish draft; and that even if duly executed it was immediately revoked by the execution of the Yiddish draft, and that the latter only was entitled to probate.
    (in final hearing.

      Mr. August G. Slreilwolf, for the appellant.

      Mr. Thomas H. llagerly and Mr. Edmund A. Hayes, for the respondents.
   Buchanan, Vice-Ordinary.

This is an appeal from a decree of the Middlesex orphans court, on the application for probate of the will of Joseph Hirsch Schwieller, deceased.

The paper presented to the orphans court as containing the will of decedent was a large sheet folded vertically down the middle. On the left of the fold is a writing in English purporting to be the last will and testament of decedent; on the right of the fold is a writing in Yiddish, also purporting to be the last will and testament of decedent.

The orphans court decree establishes the Yiddish Avriting, and that alone, as the will of decedent. Appellant contends the decree is erroneous in excluding the English writing; that both together constitute the true will.

Both “wills” are signed by decedent; both are dated January 13th, 1921; neither has the usual (nor any) attestation clause; both are signed by the same subscribing witnesses.

The subscribing Avitnesses are in substantial accord as to the facts at the time of execution. One of them, Rabbi Bos-Irin, was asked by testator to draft his will and did so several days before the date of execution. He drafted it in Yiddish —this draft being the “Yiddish will” offered for probate. Testator was an educated man, knowing both Yiddish and HebreAv, but having a slight knowledge of English. It is at least doubtful if he could read English; he could, and did, read the “Yiddish will.” After it had been completed, he suggested that possibly it might not be legal because written in Yiddish, and the rabbi said that he Avould translate it, or “the essential parts” thereof, into English, and proceeded to do so. This “translation” is the “English will” on the left-hand side of the paper propounded for probate. It is far from being a literal translation, and omits some tAvo paragraphs of recital and exhortation, which appear in the “Yiddish will.” The most serious- discrepancy is at the end (how serious it is does not appear, for there is no evidence as to hoAv much property he had nor how many heirs-at-law and next of kin he left), where the “English will” contains a residuary clause which the “Yiddish will” does not. The final gift in the “Yiddish Avill” is of two houses (subject to a legacy charge) to testator’s three sons, Max, Jacob and Abraham. The final gift in the “English will” is to the same three sons, but is of “the remainder of my estate, including the equity of my two houses ” &c.

I am clearly of opinion that the decree of the orphans court must be affirmed, for several reasons.

Assuming that the “English will” was intended as a will, and was duly executed as such, it is fully established that the “Yiddish will” was intended as a will, was duly executed as such, and was in fact the last one to be executed. The execution of the “English will” was first entirely completed, and then the “Yiddish will” was immediately afterwards executed. The latter, therefore, is the true and only “last will.” It was not declared to be a codicil but a will; it does not recite that it is a codicil; and from a perusal of the two, it clearly is not a codicil, and was not so intended. Since it is not a codicil— since both instruments are separate wills, not complementary of each other, the one latterly executed is the valid will revoking the other.

However, I am entirely satisfied from consideration of the testimony, that there is at least a failure of adequate proof that the “English will” was in fact published or declared by testator to be his will. The witness Boskin testified on direct examination (being questioned with reference to the “Yiddish will”) that testator said, at the time of execution, “that is the last will and testament; I want it to be.” On cross-examination he says that testator did not declare the English will. Being later questioned by the court, he testified that when the paper was signed testator said “that is my last will.” "Q. When did he say that, after he had signed the Yiddish-” “A. After he had signed the Yiddish paper.” The other witness, Eertig, testified on direct examination, in reference' to the “Yiddish will,” that “Mr. Swiller said that his last wishes to have that will be in consideration.” On cross-examination: “Q. And he acknowledged the English will as his last will and testament?” “A. The Jewish.”

Moreover, I am also satisfied that the “English will” was not intended by testator to be his last will and testament. At best, he had such intention only conditionally—only if the “Yiddish will” were not legal by reason of being in Yiddish. That contingency, on which the conditional intent rested, failed. Furthermore, whatever intent he had that it should, even conditionally, be his will, was based on the representation to him by Boskin that it was essentially the same as the “Yiddish will,” when in fact there is a material variance.

The decree will be affirmed, with costs.


source: Caselaw Access Project

author: Gummere, Chtee-Justice.

license: Public Domain

text:
    S. Canning Childs, respondent, v. South Jersey Amusement Company, appellant.
    [Decided November 19th, 1923.]
    The date of the maturity of a mortgage, expressed in the instrument, cannot be varied by evidence of a parol agreement entered into by the parties prior to, or contemporaneously with, its execution and delivery.
    On appeal from a decree in chancery.

      Mr. William S. Darnell (on the brief) and Mr. William G. Wattman (of the Philadelphia bar), for the appellant.

      Mr. William J. Kraft, for the respondent.
   The opinion of the court was delivered by

Gummere, Chtee-Justice.

This is an appeal from a decree of foreclosure on a bill filed by the complainant, Childs, against the Amusement company. The mortgage in suit bears date August 6th, 1921; it was given to secure the payment of $40,000, and was payable, by its terms, in one year from its date. The onfy defense set up as a bar to the foreclosure was that when the giving of the mortgage was being arranged for it was represented by the defendant to a Mr. Kraft, who was acting for the complainant, that it was unwilling to give a mortgage payable in one year from date, and that thereupon Kraft, as the duly authorized agent of the complainant, Childs, stated that payment of the mortgage would not be required at the end of the year, but that, notwithstanding the due date expressed in the instrument, it should not be payable until the expiration of two years from its making and delivery, and that, upon the faith of this statement and representation, the mortgage was then executed and delivered by the defendant.

Assuming that such an agreement as is outlined above was entered into between the parties, it constitutes no defense to a foreclosure of the mortgage. By the express provision of the uniting, it is payable at the end of one year from its date, and this written provision cannot be altered or varied by any prior or contemporaneous parol agreement. In the case of Parker v. Jameson, 32 N. J. Eq. 222, a similar defense was attempted to be set up in a foreclosure proceeding; that is, that at the time of the delivery of the mortgage a parol agreement was entered into between the parties thereto, by which the defendant was not to be required to pay the mortgage according to its terms. Vice-Chancellor Van Fleet, in dealing with this defense, says: “The question, it will be perceived, is whether this contemporaneous parol agreement can be given effect so as to alter or vary the terms of the mortgage. The law upon this subject is elementary. It is part of the alphabet of the law of evidence that when-the parties to a contract have deliberately put their engagements into writing, in such terms as to import a legal obligation, without any uncertainty as to the object or extent of their engagements, it is conclusively presumed that every part of their contract was reduced to writing; and all oral evidence, therefore, of what was said previous^, or at the time the writing was executed, must be excluded, on the ground that the parties have made the writing the only evidence of what they agreed to, and whatever is not found there must be understood to have been waived and abandoned.” And Mr. Justice Depue, in Naumberg v. Young, 44 N. J. Law 331, 339, uses the following language: “The only safe criterion of the completeness of a written contract as a full expression of the terms of the parties’ agreement is the contract itself. When parties have deliberately put their mutual engagements into writing in such language as imports a legal obligation * * * all parol testimony of conversations held between the parties, or of declarations made by either of them, whether before or at the time of the completion of the contract, will be rejected. If the contract purports to contain the whole agreement, and it is not apparent from the writing itself that something is left out to be supplied by extrinsic evidence, parol evidence to vary or add to its terms is not admissible.” And this rule was reiterated by this court in the case of Van Horn v. Van Horn, 49 N. J. Eq. 327, the rule being there stated as follows: “In the absence of ambiguity in a written agreement which is complete, oral evidence cannot be introduced to explain or vary it. If, through mistake, an agreement in writing does not express the contract which the parties intended to make, the remedy is in equity to reform it; but until it is so reformed it is unassailable by parol testimony.” It is unnecessary to multiply citations. This rule of law lias been repeated frequently by our courts since the promulgation of the opinions from which we have quoted and has always been enforced without modification.

Por the reason stated the decree appealed from will be affirmed.

For affirmance—Tiie Chief-Justice, Tren chard, Parker, Kalisch, -Black, Katzenbach, White, Heppen-HEIMER, AcKERSON, VAN BuSKIRK-10.

For reversal—None.


author: G-ummere, Chief-Justice.

text:
    In the matter of the settlement of the estate of Henrietta Cooper, deceased.
    [Decided December 4th, 1923.]
    1. A specific legacy i-s adeemed when the particular thing given is wholly lost or destroyed, or is disposed of by the testator during his life, or is so altered by him in its form as to indicate a change of testamentary purpose on his part, an intentional partial revocation of the will.
    2. A committee of a lunatic is a mere conservator of his ward's estate, and his possession of that estate vests him with no power, either intentionally or unintentionally, to change his ward’s duly expressed purposes respecting the disposition of his estate after his death.
    On appeal from a decree of the prerogative court.

      Mr. Osiris D. McConnell and W. I~I. Kirkpatrick (of the Pennsylvania bar), for the appellant.

      Mr. William I). Lippincott, for the respondents.
   The opinion of the court was delivered by

G-ummere, Chief-Justice.

This is an appeal from a decree of the prerogative court, affirming an order of distribution made by the orphans court of Camden county in the matter of the settlement of the estate of Henrietta Cooper, who died, leaving a last will and testament. But a single question is involved in the appeal, and that is whether a legacy given by the seventh item of the will, by the terms of which the testatrix gave and bequeathed to her two sisters, Ann N. Cooper and Mary Adelaide Jacoby, her (testatrix’s) distributive share in the estate of her great-uncle, Levi Nice, deceased, and her distributive share in the estate of her great aunt, Ann Nice, also deceased (each of whom while Jiving was a resident of the State of Pennsylvania), had been adeemed in her lifetime.

The will of Henrietta Cooper was made and executed on the 24th of April, 1906. Subsequently, and on October 11th, 1907, she was adjudged a lunatic by the court of chancery. She died in November, 1914, never having been restored to her right mind, and her will was duly probated. After she had been adjudged a lunatic by the court of chancery an ancillary committee was appointed of so much of her estate as had its süus in Pennsylvania, the committee being one Adamson. In due course the estate of Levi Nice, and that of Ann Nice, were settled, and the moneys into which the distributive shares of Mrs. Cooper therein had been converted were paid over by the legal representatives of those estates to Adamson, the ancillary committee. Upon receiving these moneys, the latter mingled them with other funds which he held belonging to the estate of the lunatic, and after her death paid over the whole amount in his hands, in bulk, to her executors. When the time for settlement of her estate arrived, the question arose whether the legatees named in the seventh item of the will were entitled to have paid to them out of the estate moneys equal to the amount of the legacy given to them thereby, or whether that legacy had been adeemed by the act of Adamson in accepting from the representatives of the two Nice estates the moneys due to his ward as her distributive shares of those estates, or by his subsequent act of commingling those funds with other funds in his hands belonging to the lunatic; or whether the legacy still remained an outstanding obligation in the making of the distribution. The two legatees contended that their legacy was still in force. The residuary legatee insisted that it had been adeemed, and that he was entitled to have all of the moneys paid over by Adamson to the testatrix’s executor delivered to him as a part of the residuary estate. The orphans court held that there had been an ademption by the act of Adamson in accepting from the representatives of the Nice estates the distributive shares of the testatrix therein, and directed the distribution of her estate accordingly. On appeal from this part of the order for distribution the prerogative court reached the same conclusion. The two legatees have appealed from the decree of affirmance.

The theory upon which the decision of the orphans court rests is that the legacy is specific; that, therefore, the payment of,her distributive shares by the representatives of the estates of her greatuncle and greataunt, respectively, if made to Mrs. Cooper personally, would have operated as an ademption thereof; and that, this being so, the same result must follow from the payment of the moneys into winch these distributive shares had been converted to, and their reception by, the committee of her estate. The same theory was adopted by the prerogative court in disposing of the appeal to it.

One of the points raised on the argument on behalf of the appellant is that such a legacy as that contained in the seventh item of the will of the testatrix is not specific, but general. We do not find it necessary to determine the soundness of this contention, however, and, for the purpose of disposing of this appeal, assume that the theory of the prerogative court, that the legacy in question is specific, is sound.

In the case of Morse v. Converse, 113 Atl. Rep. 214, a decision of the supreme court of New Hampshire, Parsons, chief-justice, in discussing the doctrine of ademption, thus defines its scope: “A legacy which is specific is adeemed when the particular thing given is wholly lost or destroyed; or is disposed of by the testator during his life; or is so altered by him in its form as to indicate a change of testamentary purpose on his part, an intentional partial revocation of his will.” This, in our opinion, is an accurate statement of the law of ademption and of its limitations. In the present case the legacy was a gift of distributive shares, then due, but not presently payable to the testatrix. These shares were her absolute property, although the amount thereof had not yet been determined and could not be until after the payment of debts and the expenses of settlement by the legal representatives of the Nice estates. The mere delivery to her by those representatives of her distributive shares in the shape of banknotes or specie and her acceptance would produce no change in the identity thereof. They would remain the same banknotes or the same specie after their delivery to her as they were prior thereto. Nor would their reception by her be any indication of a purpose on her part to cancel the legacy given by the seventh item of her will—to revoke to that extent the testamentary disposition of her property, and to transfer the subject of the specific legacy to her residuary legatee. We conclude, therefore, that, in view of the scope of the doctrine of ademption as we have defined it, the delivery to the testatrix of her distributive shares in the Nice estates, and her acceptance of the same, would not have operated to adeem the specific legacy bequeathed by her will to her two sisters. It, of course, follows that, if the mere acceptance of her • distributive shares by the testatrix would not have operated as an ademption of the legacy, neither could the acceptance of those shares by her committee, Mr. Adam-son, produce such a result.

Nor do we approve the determination of the prerogative court that the act of Adamson, the committee of the testatrix, in commingling those distributive shares with other moneys belonging to the estate of his ward, operated as an ademption of the legacy. A committee in lunacy is a mere conservator of his ward’s estate, and his possession of that estate vests him with no power, either intentionally or unintentionally, to change his ward’s duty expressed purposes respecting the disposition of her estate after her death. To hold otherwise would be to say that he may arbitrarily revoke her will, so far as it provides specific legacies, and may transfer the property which is the subject thereof from the persons designated by the testatrix to the residuary legatee, or—if there be none—to the next of kin. We consider that the English decisions, and those of some of our sister states, cited in the opinion of the learned vice-ordinary, which affirm the existence of such a power in the committee of a lunatic, are unsound in principle and should not be followed.

We conclude, therefore, that the legacy given by the seventh item of the will of the testatrix was not adeemed by either of the acts of her committee which we have discussed.

It is suggested in the opinion delivered in the prerogative court that the language of the specific bequest indicates that it was the intent of the testatrix; that the legacy therein given was only to become operative in case her distributive shares in the Nice estates should not become payable until after her death. We cannot concur in this view. It reads into the bequest, by implication, a condition which the testatrix herself did not see fit to insert therein. It imposes a limitation upon the gift which the language of the bequest itself fails to indicate was in the mind of the testatrix at the time of the execution thereof, and imputes to her a purpose which, in view of the fact that these estates were each of them in process of settlement at the time of the making of her will, and that she was then a comparatively young woman, would seem to be highly improbable.

The decree under review will be reversed.

For affirmance—None.

For reversal—Ti-ie Chief-Justice, Tjrenci-iard, Parker, Minturn, Kalisoi-i, Black, Katzenbaci-i, Heppeni-ieimbr, Ackerson, Van Buskirk—10.


author: Parker, J.

text:
    In the matter of the dissolution of New Jersey Refrigerating Company.
    LArgued June 29th, 1923.
    Decided November 19th, 1923.]
    1. Under section 31 of the Corporation act (Comp. Btat. p. 1619), where there is unanimous consent in writing of the stockholders to the dissolution of a corporation, such dissolution is effective at latest upon the filing of such unanimous written consent with the secretary of state and the issue of a certificate of dissolution by him, and thereupon the jurisdiction conferred on the court of chancery by section 56 of the act (Comp. Btat. p. 1686) attaches.
    2. The court of chancery under its general equity powers may appoint a receiver of a corporation, even though solvent, in cases where there is a present danger to the interests of the stockholders consisting of a serious suspension of, of interference with, the conduct of the business and a threatened or actual depreciation of the value of the assets consequent thereton. Such power should he exercised with caution, and its exercise should not be continued longer than necessary to preserve the property and protect the interests of the stock-solders.
    On appeals from an order advised by Vice-Chancellor Church, which reads in part as follows:
    “And it further appearing to the court that all of the stockholders of said corporation have consented to a dissolution of said corporation and that said consent has been duly filed in the office of the secretary of state and the certificate of the secretary of state of the dissolution of said corporation has been duly issued and that since or on about the twenty-third day of May the directors of said corporation as trustees on dissolution have been attempting to liquidate the business of said corporation in accordance with the provisions of the statute in such case made and provided and the complainant and the Betz interest urging that this court take over the administration of the dissolution proceedings of said corporation and appoint receivers and the said Albert C. Wall and Hudspeth and Demarest and J. Fisher Anderson for their respective interests, urging that this court by order continue the directors as trustees on dissolution, and it further appearing to the court b3',the proceedings herein and by the statement of counsel and of the trustees personally present in open court that since the proceedings taken, in dissolution and since the directors have been acting as trustees upon dissolution, dissensions have arisen among the directors with respect to the manner in which the liquidation should be conducted to such an extent as that the directors are not functioning as trustees; and it further appearing to the court that by reason of the complexity of the business of said corporation and of the divers interests represented upon its board of directors and of the dissensions which have already arisen between the trustees that the directors as trustees cannot function with due regard to the interests of the stockholders of the company and a majority of the trustees, either personally or through counsel, expressing the opinion that the directors cannot so function and it further appearing to the court that the business of the company is of such a nature and the liquidation must necessarily be of such a nature as that the directors as trustees could not safely properly function without the aid and assistance of orders of this court, which would necessitate continuous applications to this court for relief which would tend to the injury of the interest of the stockholders; and it further appearing to the court upon the whole case that the interests of the stockholders of the company require tha,t this court take control of the liquidation of the affairs of said corporation and that the control so taken be exercised through receivers.
    “It is on this 13th day of June, 1923, ordered, that this court taire over the administration of the liquidation of the affairs of the New Jersey Refrigerating Company.
    “And it is further ordered, that Edward IT. Wright and Frank J. Bock be and they are hereby appointed receivers of the New Jersey Refrigerating Company, with, full and complete power to collect the debts and property due and belonging to the corporation and to prosecute and defend in the name of the corporation or otherwise all suits necessary or proper for the purposes aforesaid and to appoint an agent or agents under them and to do all other acts which might be clone by such corporation, if in being, that may be necessary for the final settlement of its unfinished business.”
    (The order also contained other provisions relative to the powers of the receivers, which are omitted either as not involved in this appeal, or already disposed of by interlocutory motions in this court.)

      Mr. Ulmer W. Demurest, for the appellants Emma Lembeck et al.

      Mr. Albert C. Wall, for the appellant Otto A. Lembeck.

      Mr. J. Ilenry Harrison, for the respondents’ receivers.

      Mr. Merriti Lane, for the respondent Sarah E. Lembeck.

      Mr. George J. Carr (of the New York bar), for the trustee and respondent, G. Arthur Betz.
   The opinion of the court was delivered by

Parker, J.

The present appeal is the culmination of an acrimonious controversy between various stockholding interests in the New Jersey Refrigerating Company, a corporation of this state. That company acquired the plant and other property of a large brewing concern in Hudson county, which had ceased operations on account of the prohibition laws, and conducted the plant as a cold storage plant. The brewing concern had owned a large number of scattered pieces of real estate in New Jersey and elsewhere, utilized by it for saloon purposes, but naturally useless to its successor. Dissensions as to management of the business arose among the stockholders, whose respective interests were, for the most part, considerable, the corporation being a close one and the stock held almost entirely in two families. There was a contested election of directors in May, 1922, which, was reviewed under the statute (Comp. Stat p. 1624 § 4®) and set aside by the -supreme court; and while the matter was under consideration in that court the business was operated by trustees under the direction of the court of chancery. The decision of the supreme court was appealed to this court, and the appeal, as well as four other suits directly or indirectly involving- control of the company, were pending when, in February, 1933, an agreement of compromise between the conflicting parties was drawn, but apparently not signed, and there was a dispute as to whether it had been agreed to by parol. On April 37th, 1933, another agreement was drafted at a meeting in the office of counsel representing some of the parties, other counsel being present. Some of the parties and some of the counsel signed this. Others seem to have withheld their signature. We need not examine the effect of this in a legal sense; it is mentioned as one of the important incidents in a rather extended chain of negotiation and recrimination. An important feature of it was a stipulation that the company should be voluntarily dissolved and liquidated, its debts paid and its remaining assets divided among the stockholders; and that such action should be taken “by either unanimous consent of all the stockholders, all persons present agreeing to sign such consents, or by two-thirds stockholders’ vote at a special stockholders’ meeting, all ¡persons present agreeing to vote in favor thereof.” This, it will be observed, is the alternative procedure provided by section 31 of the Corporation act. Comp. Stab. p. 1619. The agreement further provided for the election of a named board of directors at the forthcoming annual election; that such board should elect designated individuals to the respective offices; the amount of their salaries; certain amendments to the by-laws; the disposition of outstanding litigations, and certain other details. Particularly it was provided that 'the stated annual meeting should be adjourned to the date of the special stockholders’ meeting, to be called to consider the question of dissolution. The elections were had accordingly, but contemporaneously with them an agreement of dissolution conforming to the statute was executed by all the stockholders and filed May 2-ith, 1923, in tlie office of the secretary of state, who issued the “certificate of dissolution” mentioned in the act. Publication of this was begun on May 31st, but had not been completed when the proceeding now under review was inaugurated by the filing, on June 11th, of a petition by Sarah Lembeck holding two hundred and thirty-five shares of stock, praying the appointment of a receiver or receivers-The vice-chancellor, on the return of an order to show cause, and after hearing all parties desiring to be heard, made the order appointing receivers which is reproduced in part above. It is attacked on this appeal on two principal grounds.

I. That the court of chancery had no jurisdiction under section 56 of the Corporation act (Go'mp. Siat ¶. 1636), because the corporation, at the time of making the order, had not been “dissolved” in the sense intended in the act. i. e., its proceeding for voluntary dissolution was not complete.

II. That a case had not been made out, either giving the court of chancery jurisdiction to deal with the matter under its general equity powers, or, if jurisdiction existed, warranting the exercise of those powers in the manner adopted by the court.

We conclude that the appointment of receivers should be affirmed on both- grounds.

I. As to the statute. Mention has been made of an alternative procedure for voluntary dissolution. Where there is a two-thirds interest favorable to dissolution, but not unanimity, the successive steps in the procedure under section 31 are—(1) resolution of the directors, upon notice, recommending dissolution and calling a stockholders’ meeting; (2) notice of adoption of the resolution and of the proposed meeting, to be advertised four weeks and mailed to stockholders; (3) holding of the stockholders’ meeting and a consent in writing thereat of two-thirds in interest of all the stockholders, to be filed with the secretary of state, together with a list of officers and directors; (4) certificate by the secretary of state “that such consent has been filed;” (5) publication of such certificate for four weeks successively in a newspaper in the county; (6) filing of an affidavit of such publication. “And upon the filing” (says the act) “in the office of the secretary of state of an affidavit that said certificate has been so published, the corporation shall be dissolved, and the board shall proceed to settle up and adjust its business and affairs.” By the express language of the act the dissolution takes place upon the filing of this last affidavit in eases where tire two-thirds procedure, as it may be called, has been followed. And in Hegeman v. Atlantic Shoe Co., 73 N. J. Eq. 295, it was held in the court of chancery that in a case of two-thirds procedure the statutory power of appointing a receiver on dissolution conferred by section 56 did not arise until the final affidavit had been filed. Ibid. p. 300.

But the voluntary dissolution by a unanimous consent is a very different matter. In that aspect the language of the act is broad and general, and, as we think, free from, ambiguity. Section 31, immediately following the extract just quoted, proceeds thus: “Whenever all the stockholders shall consent in writing to a dissolution no meeting or notice thereof shall be necessary; but on filing said consent in the office of the secretary of state he shall forthwith issue a certificate of dissolution, which shall be published as above provided.” The form of such certificate is not prescribed in the act, but a “certificate of dissolution” must necessarily be a certificate that the corporation has been dissolved; and the plain intendment of the act seems to be that dissolution occurs either on the filing of the unanimous consent or, at latest, upon tire making of the certificate by the secretary of state. To the argument that the certificate of1 dissolution must be published as above provided and that an intent to postpone dissolution until its last publication should be deemed to exist, we answer that no such intent is indicated in the language of the act, and that suitable public notice of the fact of dissolution being eminently proper for the benefit of creditors and others having dealings with the corporation, the provision is naturally referable to that consideration. There is no requirement, as in the two-thirds procedure, that the final advertising and affidavit thereof shall be a condition precedent to . dissolution. It follows, therefore, that in this case the filing of the unanimous consent and the issue of the certificate of dissolution thereon vested in the court of chancery the powers prescribed by section 56.

II. As to the other phase of the matter: Cases in which a court of equity has appointed a receiver of a corporation because of internal dissensions are comparatively rare, but the jurisdiction appears to be well settled. Several decisions in our own states affirm the jurisdiction and are illustrative of the situations in which a receiver should, or should not, be appointed, as the case may be.

In Einstein v. Rosenfeld, 38 N. J. Eq. 309, Chancellor Runyon refused a receiver in a case of dissension between stock interests because the business of the company was being carried on in the usual course, under full control of one of the contending parties.

In Archer v. American Water Works Co., 50 N. J. Eq. 33 (at p. 52), Chancellor McGill said, after awarding an injunction :

“If the present directors of the company, and they are all parties to this suit, continue their dissensions, so that the affairs of the company are not speedily attended to, upon a proper application, I will care for the property, pending determination of the suit, through the instrumentality of a receiver. Such action will be supported by precedents and authority.” . (Citing cases.)

In Edison v. Edison United Phonograph Co., 52 N. J. Eq. 620 (at p. 625), Vice-Chancellor Van Fleet said:

“The power of this court to appoint a receiver of a corporation, either because it has no properly constituted governing body or because there are such dissensions in its governing body as to make it impossible for the corporation to carry on its business with advantage to its stockholders, I think must be regarded as settled,” and went on to say that it should be exercised with caution and only so long as necessary to preserve the property of the corporation and protect the interests of the stockholders.

In Sternberg v. Wolff, 56 N. J. Eq. 555, Vice-Chancellor Pitney reviewed the decisions and refused to appoint a receiver in a case of dissension between owners, because notwithstanding dissension and litigation the business of the corporation was being conducted in full volume, with the usual profit to the stockholders, was not being interfered with by the litigation, and no corporate action was necessary to its continuance. He said the court should not interfere with a solvent corporation by a receiver unless there is a present danger to the interests of the stockholders consisting of a serious suspension of, or interference with, the conduct of the business and a threatened depreciation of the value of the assets consequent thereon, which may be met and remedied by a receiver.

In the case at bar, most if not all the elements are present which were held ip the cited decisions to be absent. The president refused to carry out the resolutions of the board; that body was unable, without a physical contest, to exclude from its meeting an unauthorized person who was officially notified to depart. The business of the corporation was halting and almost at a standstill. Perishable property deposited with it for storage was in danger. Opportunities for favorable sale of outlying properties were being ignored; and, as we have said, four or five law suits were in progress. Affairs had reached an impasse. In addition to all this, the stockholders had unanimously consented to dissolve the corporation, and such dissolution, if not perfected -(as we have just held it was), was imminent, so that the carrying on of ordinary business must necessarily cease in a few days. The pleadings indicate that on this application the original dispute was rather about the personality of the receivers than a receivership at large. A plainer case for the interposition of the court of chancery could not well be imagined. The action taken was in line with that sustained by us in Morse v. Metropolitan S. S. Co., 88 N. J. Eq. 325, so far as that case deals with general equity power.

The order of the court of chancery appointing receivers will be affirmed, but the powers of the receivers thereunder should be limited to those necessary and proper for the settlement and winding up of the affairs of the corporation, the liquidation of its assets, including the sale and conveyance of its property, real and personal, pa3rment of claims and expenses of administration, and distribution of the balance, all under the direction of the court of chancery.

For affirmance ■— The Chief-Justice, Trenchard, Parker, Kalis oh, Black, Katzenbach, White, Heppen-HEIMER, ÁCKERSON, YAN BüSKIRK—10.

For reversal—None.


author: Kalisci-i, J. Black, J.

text:
    Philip M. Grausman, complainant-appellant, v. Porto Rican-American Tobacco Company, defendant-respondent. William Rice Rochester et al., complainants-appellants, v. Porto Rican-American Tobacco Company, defendant-respondent.
    [Decided November 19th, 1923.]
    Where the directors of a corporation propose an amendment to its certificate of incorporation, and by resolution provide that it is a condition precedent to the plan proposed by the amendment going into effect that a special meeting of the stockholders of the corporation be called for the purpose of considering and taking action upon the resolution for the amendment, and that due notice of such meeting be given, and that upon obtaining the assent in writing and the approving vote of the stockholders as required by law the certificate of incorporation be amended, and- nothing appearing to show that there is contemplated any action to be taken in fraud -of a statute or in violation of any law of this state, a bill of complaint to enjoin such action filed before such meeting of the stockholders was prematurely filed and should be dismissed.
    On appeal from an order refusing a preliminary injunction advised by Vice-Chancellor Bentley, whose opinion is reported in 95 N. J. Eq. 155.

      Messrs McCarter & English, for the complainant Grausman.

      Mr. Merritt Lane, for the complainant Rochester et al.

      Messrs. Linddbury, Depue & Faulks, for the respondent.
   The opinion of the court was delivered by

Kalisci-i, J.

The bills filed by the complainants in this ease in the court below sought to enjoin the Porto Rican-American Tobacco Company from submitting to a stockholders’ meeting and for the action of the stockholders thereon a certain resolution of the directors dated May 10th, 1923, providing for an amendment to the certificate of incorporation in the respects set out in the resolution, and which amendment the complainants complain threatens to impair their vested rights, as owners of stock of the corporation.

A rule to show cause why a preliminary injunction should not be granted, together with a temporary restraining order, was allowed in the court below and the matter came up for a hearing, on the verified bills' of complaint and answering affidavits, before Vice-Chancellor Bentlejr, who entered upon a consideration of the merits, dissolved the restraining orders and refused a preliminary injunction, from which orders the complainants appealed.

The facts and the reasons for refusing the preliminary injunction are set out in the opinion of the vice-chancellor. Although we arrived at the same result that he did we do not base our action upon the views expressed by him in his opinion, which views are predicated upon a consideration of the meritorious question which in our opinion was not properly before him for decision. We therefore refrain from expressing an opinion upon the merits. We think the intervention of the court of chancery was prematurely sought. We turn to the resolution adopted by the directors of the respondent company and we find that after setting forth the plan and details of the proposed amendment to the certificate of incorporation the resolution makes a condition precedent to the plan going into effect that a special meeting of the stockholders be called, for the -purpose of considering and talcing action on the resolution for the amendment and increase of capitalization of the certificate of incorporation, and that due notice of such meeting be given, and that upon obtaining the assent in writing and approving vote of the stockholders of the company, as required by law, the certificate of incorporation be amended and the board of directors be authorized and empowered to issue stock as hereinabove provided, and that in the event of the certificate of incorporation being amended and the capital stock of the corporation increased, &c., the board of directors snail take such steps, &e.

A fair reading of the resolution makes it quite plain that it lacked the essential element of such finality that one could properly say that there was imminent peril confronting the complaining stockholders of their suffering irreparable injury. For, in the first place, a meeting of all the stockholders was to be hold for the purpose of considering and taking action on the proposed plan. Secondly, that only upon obtaining the assent in writing and approving vote of the stockholders of the company, as required by law, was the plan to become effective.

Now, it is difficult to perceive how can it be said with any degree of reasonable certainty that after a consideration by the stockholders of the proposed plan at the meeting, that is, after having discussed it, that it would be adopted. It may be rejected. Those who had given their prbxies, in advance, committing themselves to the plan as proposed may change their minds before the meeting takes place and revoke their proxies. The complainants themselves may change their attitude towards the adoption of the scheme, after the matter has been thoroughly discussed at the meeting, or they may effect a change therein so as to meet their views. That such a course is within the range of probability' was significantly exemplified when, at the argument before us, it was announced by counsel of complainants that several of the latter had withdrawn from any further contest.

If the resolution of the board of directors had not contemplated prospective intervening acts of approval and satisfaction on the part of the stockholders, before the resolution was to become a finality, namely, that the proposed plan should be considered and approved by them according to law, or if, upon the fact of the resolution, it appeared that it contení plated the commission of a fraud upon a statute of this state, as was the situation in Riker & Son Co. v. United Drug Co., 79 N. J. Eq. 580; then, of course, a sufficient basis would have existed for the interference of a court of equity.

In the present case the resolution expressly provides that the plan should be considered and approved by the stockholders of the company according to law, and we must, therefore, assume, in the absence of anything to the contrary, that it is the intention of the board of directors to comply with the statute and the law as declared by this court, regulating the matter, and to properly protect the vested rights of stockholders.

If there are any cases in our reports where the court of chancery had entertained jurisdiction in this class of cases before there was final action of the corporation (cases of fraud excepted), and such cases were heard, on appeal, by this court without comment by it on the propriety of bringing the suit, it is quite likely that the absence of any comment or action by this court was 'due to the fact that the question was not stirred by counsel or the immaturity of the cause escaped the observation of the court.

While it is true that counsel in the present case have not objected to the progress of the suit by the complainants herein, the court on its own motion is induced, to take notice of the situation and to take action thereon, because it thinks it highly imprudent and unwise to decide questions of law postulated upon anticipatory acts of the corporation, which acts may never take place.

The function of the court is to apply legal principles to the facts as they exist and are before it, and not to. anticipatory facts, which may or may not come into being; for if this were otherwise a court would constitute itself, virtualty, as advisory counsel in the cause before it, and in consequence destroy the value and stability of its decisions.

Therefore, upon the ground that the bills of complaint were prematurely filed, the order in each case denying a preliminary injunction is affirmed, with a direction t.o the court below that the bills of complaint be dismissed without prejudice.

Black, J.

(concurring).

I concur in the order made in the court of chancery that the rule to show cause be dismissed and the preliminary injunction applied for be refused. But I am not in accord with the reasons expressed in the opinion of this court, directing the bill of complaint to be dismissed. It seems to me there is a misapplication of sound reasoning to the facts, as they appear in the record. The intervention of the court of chancery was not prematurely sought. The bill of complaint was not prematurely filed. The resolution, the subject of the controversy, was adopted May 3d, 1923. Notices for a special meeting of the stockholders to be held on May 31st, 1923, to vote upon the plan, were sent on May 10th, 1923, to each of the stockholders of record. Two hundred and seventy-five stockholders, more than two-thirds in interest of its outstanding capital stock, as required by the statute, had sent their proxies to the officers of the defendant company for the purpose of voting in favor of the plan. The complainant owns three hundred and twenty-five shares of the capital stock. The bill was filed and an order to show cause with a restraint was made on May 29th, 1923. Courts are organized for the purpose of administering justice and settling the merits of a controversy; not simply to act as an umpire over a contest, in which, whether invoked or not, the rules are applied with adroitness and frequently with sharpness.

For affirmance — The Ch tee-Justice, Trenctiard, Kal'isch, Katzenbaoi-i, Heppeni-ieimer, Van Buskirk—6.

For reversal—Parker, Black, Ackerson—3.


author: Kalisch, J.

text:
    Howard L. Ocumpaugh, complainant-appellant, v. Linde & Griffith Company, a corporation: County of Essex, a municipal corporation of the State of New Jersey; County of Hudson, a municipal corporation of the State of New Jersey; Ajax Electric Company, a corporation, and Arthur E. Wells, trustee in bankruptcy of Ajax Electric Company, bankrupt, defcndants-respondents.
    [Submitted June term, 1923.
    Decided November 19th, 1923.]
    1. The Municipal Mechanics’ Lien law is the outgrowth of a well-defined state policy, one of the principal objects of which is to secure to the merchant or trader who furnishes materials, and to the mechanic or workman who performs labor under contracts made with municipalities for public improvements, payment for the materials furnished and for the work performed.

      2. Where subcontractor of a subcontractor filed a claim under the Municipal Mechanics’ Lien act within the time specified in the statute, and also gave notice of his lien claim, within the time specified by the statute, to the municipalities and the general contractor, the bankruptcy of the first subcontractor will not invalidate such lien, when the bankrupt had taken no steps to secure its lien on the funds in the hands of the municipalities.
    3. Bankruptcy confers no greater rights on the trustee in bankruptcy than the bankrupt himself possessed.
    On appeal from a decree advised by Vice-Chancellor Lewis ■dismissing complainant’s bill of complaint, reported in 91f N. J. Eq. 60S.

      Mr. Clarence Kelsey, for the appellant.

      Mr. J. Fisher Anderson, for the respondent Arthur E. Wells, trastee in bankruptcy.
   The opinion of the court was delivered by

Kalisch, J.

The complainant, the appellant here, filed his bill, in the ■court below, against the defendants-respondents, to enforce a lien claim for the sum of $4,708.57, alleged to have accrued to him under the Municipal Mechanics’ Lien act (P. L. 1918 p. lOlil) for work and labor done and materials furnished by him for and to the Ajax Electric Company, subsequently adjudicated a bankrupt.

By the bill it was made to appear that the counties of Essex ■■and Hudson entered into a contract with Linde & Griffith Company, by which the latter was to construct a safety roadway and sidewalk gates on the Lincoln highway, the work to be ■completed by October 10th, 1921.

The Linde & Griffith Company subcontracted the electrical work and equipment required for the operation of the gates ■to the Ajax Electric Company. The latter, in turn, subcontracted the same work to the complainant; which work he completed, as required, by October 10th, 1921. The entire contract was completed at that time and was accepted by the municipalities on or about October 27th, 1921. The Ajax Electrical Company failed to pay to complainant what was due to him for the materials furnished and the work done by him. On December 6th, 1921, the company was adjudicated a bankrupt. There was a certain, amount of the contract price withheld by the counties from the Linde & Griffith Company, in accordance with the terms of their contract. On December 17th, 1921, complainant gave notice of his lien claim, within the time prescribed by the statute, to the municipalities and general contractor, and filed such notice of lien claim, in accordance with the requirements of the Municipal Lien act of 1918, sufra.

On behalf of the trustee in bankruptcy a motion was made to dismiss the bill of complaint on the ground that the adjudication, in bankruptcy having taken place on December 6th, 1921, invalidated the filing of the complainant’s lien on December 17th, 1921, and that the funds due from Linde & Griffith Company, the main contractor, to the Ajax Electric Company, the first subcontractor, the bankrupt, are assets of the bankrupt estate and that the complainant must come in under the bankruptcy proceedings and share with the general creditors of the bankrupt. The learned vice-chancellor practically adopted that view and dismissed complainant’s bill. We think the complainant was entitled to the relief sought and that the bill was, therefore, erroneously dismissed.

In the present case the complainant filed his bill of complaint to enforce his lien claim on the funds of the municipality within sixty days from the filing thereof and by virtue of section 4 of the statute under which the proceedings were had, the complainant’s claim became a binding and subsisting lien upon such funds.

The Municipal Mechanics’ Lien law of 1918 is the outgrowth of a settled and well-defined state policy, one of the principal objects of which is to secure to the merchant or trader who furnishes materials and to the mechanic or workman who performs labor, under contracts let out to contractors by municipalities for any public improvement, payment for the materials furnished and for the work performed.

The obligation resting upon the municipality is to pay the principal contractor, unless lien notices of subcontractors and materialmen or workmen are served upon the municipality, and when such notices are served the municipality may pay to the principal contractor all sums in excess of what is required to meet the claims of lienors.

It is quite obvious that the counties of Essex and Hudson were not indebted in any sum to the Ajax Electric Company, and that the latter had not the slightest claini upon the funds of these municipalities, which by their contract was payable to the Linde & Griffith Company, the principal contractor. The only manner in which the Ajax company soulcl have a legal interest in and a lien upon the funds in question would have been by taking proceedings under the statute. This the company did not see fit to do, and, therefore, its only enforceable claim was against Linde & Griffith Company, with obligation to pay out of its funds to the Ajax company with whom it had a subcontract and upon whom was cast the legal debt owing to the latter, but not out of any particular fund remaining in the hands of the municipalities.

The Ajax company before it was adjudged a bankrupt took no steps, which it could have done, to secure a lien upon the funds in the hands of the municipalities; nor did the trustee in bankruptcy, who, after his appointment was clothed with all the rights of the bankrupt and of its general creditors, take any stej)s in that direction.

The bankruptcy of the Ajax company, therefore, wrought no change in the situation of the complainant and conferred no greater right on the trustee than the bankrupt himself possessed, and since neither the bankrupt nor the trustee at any time acquired a lien upon the fund in the hands of the municipalities, which could only be properly secured under the statute, by a compliance with its provisions, and since this was not done and as there was no debt due from the municipalities to the bankrupt company, its bankruptcy became, in the course of affairs, only an immaterial incident.

It is clear that the funds in the hands of the municipalities could not in any aspect have become a part of the assets of the bankrupt company until it or its trustee had impressed upon such fund a statutory lien in the bankrupt’s favor, and, even then such statutory lien would be subservient to the statutory liens, upon the fund, of the parties who furnished the materials and did the work for the bankrupt subcontracting company.

The complainant is clearly entitled to be paid out of the fund withheld by the municipalities his claim, if valid, for the materials which he furnished to and for the work done by him for the Ajax company.

The decree below is reversed, with the direction that the municipalities be decreed to pay to the complainant out of the fund in their possession arising out of their contract with the Linde & Giiffith Company such sum as shall be found due him from the Ajax company on his statutory lien.

For affirmance—None.

For reversal—The Chibe-Justi ce, Trenchard, Parker, Kalisch, Black, Katzenbach, White, Heppenhetmer, Ackeuson, Van Buskikk—10.


author: IvATZENBACH, J.

text:
    Grace Louise Hill and Henry J. Russell, executors under the last will and testament of Thomas Hill, deceased, complainants-appellees, v. Ernest Perry Hill et al., defendants-appellants.
    [Decided November 19th, 1923.]
    H. executed two bonds and secured the same by two mortgages upon certain real property owned by him. H. died, leaving a will by which he devised the property so encumbered in trust for the widow and children of a deceased son. The will provided for the payment of his just debts and bequeathed the residue of his estate in three equal parts, one to the widow and children of the deceased son and the other two parts to two sons who survived the testator. The personal estate was sufficient to pay all debts, including said mortgages. The trustee and beneficiariesi of the real estate specifically •devised demanded of the executors of the will payment of said mortgages out of the personal estate. The two sons as residuary legatees ■of two-thirds of the residue of the estate contended that the trustee and beneficiaries must take the real estate encumbered by the mortgages. Upon a bill filed by the executors for instruction—Eeld: First, that the devisee was entitled to exoneration of the real estate from •said mortgages by the payment thereof out of the personal estate; second, that chapter 170 of the laws of 1880, as amended in 1881 (Gomp. Stat. p. 3J/21), did not abolish the common law rule in this •state of exoneration from the personal estate of lands specifically devised from the lien of mortgages created by the testator.
    On appeal from the court of chancery.

      Jlessrs. Autenreith cO Gannon, for the defendants-appellants Ernest Perry Hill and Arthur Edward Hill {Mr. William B. Gannon, of counsel).

      Mr. James E. Pyle, for the complainants-a.ppellees.

      Mr. J. Hariland Tompkins, for the defendants-appellees Grace Louise Hill, trustee, &c.. and others.
   Tlie opinion of the court was delivered by

IvATZENBACH, J.

Thomas Hill, of Jersey City, was the owner of real estate located in said city and known as Nos. 57 and 59 Newark avenue. On November 21st, 1917, he gave his bond to the Provident Institution for Savings of Jersey City for $8,000 and secured the same by a mortgage on said property. On-March 19th, 1919, he again gave his bond for $2,000 to the same obligee and secured the same by a mortgage on the same property. On January 1st, 1919, the $8,000 mortgage became due and was not paid during his lifetime. On July 1st, 1919, the $2,000 became due and was not paid. On June 20th, 1919, Thomas Hill died leaving a will dated February 14th, 1918, which was duly probated. In the first paragraph of the will he directed that all his “just debts and funeral expenses be first fully paid.”

In the second paragraph he devised the real estate above mentioned to Grace Louise Hill, a granddaughter, in trust, for the benefit of the widow and four children of a deceased son. The third and fourth paragraphs of the will relate to certain bequests having no bearing upon the questions involved in this litigation. The fifth paragraph provided that his residuary estate should be divided into three equal parts, one of which should be again divided, equally between the widow and four children of his deceased- son, one of the remaining two parts he bequeathed to his son Ernest Perry Hill, and the other part he bequeathed to his son Arthur Edward Hill. He appointed Grace Louise Hill and Henry J. Russell executors of the will. The executors duly qualified.

The personal estate of the testator is more than sufficient to pay all the debts, including the principal and interest due on the bonds and mortgages mentioned. The Provident Institution for Savings submitted no claim on the-bonds to the executors. An order to limit creditors was taken on Julv 1st, 1919, and a decree barring creditors was entered on April 3d, 1920. Prior to the entry of the decree a demand had been made by,the trustee and beneficiaries of the trust declared iii tlie second paragraph of the will for the payment of the bonds and mortgages out of the personal estate. The residuary legatees, Ernest Perry Hill and Arthur Edward Hill, contend that the trustee must take the real estate with the encumbrances upon it, and that' the executors have no legal right to pay off the mortgages out of the personal estate. Upon this impasse being reached between the trustees and beneficiaries of the trust and the residuary legatees mentioned, the executors filed a bill in the court of chancery to determine which contention is correct. The above facts were either admitted in the pleadings or stipulated by the partie.-. and the case submitted to Vice-Chancellor Lewis. The learned vice-chancellor advised a decree directing the executors to pay the principal and interest due on said mortgages out of the personal estate so as to exonerate from the lien of said mortgages the real estate specifically devised in trust under the second paragraph of the will. This decree Ernest Periy Hill and Arthur Edward Hill have appealed to this court.

The appellants concede that under the common law in this state, where lands are specifically devised subject to mortgages made by the testator, that the personal estate is, in the absence of any statute to the contrary, primarily liable for the discharge of said mortgages. This rule of law found early expression in our reports being very clearly and succinctly stated by Chancellor Green in the case of Keene et al. v. Munn et al., 16 N. J. Eq. 398, in the following language: “At common law, personal estate is the primary fund for the payment of debts, and the heir-at-law may call upon the executor to exonerate the land by discharging the mortgage . debt out of the personal estate, upon the ground that the personal estate had the benefit of the money for which the mortgage was given. The devisee stands in the same position as the heir, and is entitled to the same equity. But the mortgagee, or alienee, of the heir or devisee has no such equity. The principle is adopted in favor of the heir or devisee alone, and not in favor of his alienee.” (Citing authorities.)

Later cases to the same effect are Krueger v. Ferry, 41 N. J. Eq. 432, and Smith v. Wilson, 79 N. J. Eq. 310, where (at p. 312) there is cited a long list of New Jersey and other authorities in support of this doctrine.

The reasons for the rule as gathered from these decisions are that the personal estate of the decedent has been increased by the money received from the mortgages, and that the personal estate has always been considered the natural fund for the payment of debts.

The contention of the appellants is that this doctrine of exoneration has been abolished in this state by chapter 170 of the laws of 1880, as amended in 1881 {Comp. Stah. p. 3421), which reads as follows:

‘'That in all cases where a bond and mortgage has or may be hereafter given for the same debt, all proceedings to collect said debt shall be, first, to foreclose the mortgage, and if at the sale of the mortgaged premises under said foreclosure proceedings the said ■premises should not sell for a sum sufficient to satisfy said debt, interest and costs, then and in such case it shall, be lawful to proceed on the bond for the deficiency, and that all suits on said bond shall be commenced within six months from the date of the sale ■of said mortgaged premises, and judgment shall be0 rendered and ■execution issue only for the balance of debt and costs of suit.”

This contention of the appellants finds support in two ■cases decided in the court of chancery. The first case is that of Smith v. Wilson, supra,.- In this the bill was filed by the heirs-at-law of a deceased married woman to compel her administrator, her surviving husband, to exonerate their land from the burden of a bond and mortgage made by the married woman to secure her own debt shortly before her decease in December, 1903. The common-law rule of exoneration was recognized, but the learned vice-chancellor held that the right of exoneration in this class of cases had been abolished by the 1880 statute, and that the heirs-at-law took the real estate subject to the mortgage encumbrance thereon created by the decedent. This ease was decided in November, 1911. The other case taking the same view is that of Atkinson v. Atkinson, 84 N. J. Eq. 105, decided in December, 1914. The bill in this case was filed by an heir-at-law to obtain exoneration of lands which had descended to him from a mortgage made by the ancestor. The learned vice-chancellor deciding the case followed the decision in Smith v. Wilson, supra, citing no other decision.

Prior to the rendering of the two decisions above mentioned, and after the passage of the statute of 188.0, there were two cases involving the same question before our courts which were decided adversely to the contention of the appellants in the ease at bar. The first of these cases was that of Higbee v. Morris, 53 N. J. Eq. 173, decided by this court in 1895. Mr. Jirstice Dixon, who spoke for the court, said: “The most satisfactory solution of the doubt thus engendered is found in the legal rule, that the personal estate of a testator is the primary fund for the payment of his debts, even though the debts be secured by mortgage upon his realty, and that the personalty will not be exonerated from this primary liability merely because the testator has evinced a purpose to charge his debts upon his real estate, unless he has clearly indicated an intention to discharge his personal property therefrom.”

While in this case it was held that the residuary real estate was not chargeable with the debt in exoneration of the mortgaged premises, there being in the will no evidence of an intention that it should be so charged, yet the case reaffirmed the common law rule of the exoneration of mortgaged lands specifically devised out of the personal estate where the debt had been created by the testator. The second of these cases is Hetzel v. Hetzel, 74 N. J. Eq. 770, in which Chancellor Walker (then a vice-chancellor) decided that devisees were entitled to have a mortgage made by the testator paid out of the personal estate in exoneration of the lands, but must accept the lands subject to the mortgages which were upon them when acquired by the testator. This decision is a recognition of the common law rule of exoneration made twenty-eight years after the passage of the 1880 statute. Neither of the two cases "last mentioned made any reference to the effect, if any, of the 1880 statute upon the common law rule of exoneration. The appellants insist that the application of the 1880 statute was overlooked and not passed upon in these cases, and had the attention of the courts, deciding these cases, been directed to the statute and its effect on the common law rule of exoneration, the outcome of the cases would have been different. In the opinion in the court below the learned vice-chancellor did not accept the view advanced by the appellants. He held that the common law doctrine of exoneration exists to-day in this state and was not abolished by the 1880 statute. In the view thus expressed we concur. An examination of the statute discloses no intention, so far as we can discover, of abolishing the common law doctrine of exoneration. It does not say so in express words. Such an intention could only be arrived at by giving to the statute a strained construction which is unwarranted, when we consider that if it was the- legislative intent to change the long-established common law doctrine of exoneration, it would have been easy for the legislature to have used words which would have been apt and convincing of the legislature’s desire to . eek by the statute such an end. Such a purpose would natuiallv be indicated in the title of the act. The title of the 1880 statute is “An act concerning proceedings on .bonds and mortgages given for the same indebtedness, and the foreclosure and sale of mortgaged premises thereunder.” This title shows that the act is one.which relates to procedure only. It changes the procedure to be followed by the holder of a bond and mortgage in the collection of the debt represented by the bond for which the mortgage is the surety. That it is a statute of procedure and not a statute intended to abolish a well-established rule of law is evidenced in a measure by the purpose of its enactment stated by Chief-Justice Beasley. in the case of Mershon v. Castree, 57 N. J. Law 484, in these words: “The hardship that the statute was intended to alleviate was the seizure and sale- of the chattels of the mortgagee by virtue of a judgment on the bond, before resorting to the land. No purpose is observed in it to abridge the right of the mortgagee beyond that measure. The statute must be construed strictly, as it is in derogation of the common law force inherent in the bond and mortgage/5

The act did not relieve the obligor of the obligation assumed by him in making the bond. It merely provided that before action could be taken on the bond the obligee should realize upon the real surety given to secure the bond. In this connection the language of this court in the case of Smith v. Crater, 43 N. J. Eq. 637, is quite significant. In that case the mortgagor had died and the mortgagee had foreclosed his mortgage and filed a claim with the administrators of the estate. A creditor insisted that by force of the statute of 1881 (the act of 1880 amended) the equity of redemption was extinguished and the lands had been accepted in full satisfaction of the claim. In considering this phase of the case this court said: “The act of 1881 prohibits suit upon the bond until sale is made under the decree of foreclosirre, but does not prevent the creditor from presenting his claim to the administrator under the rule to bar. If not presented within the time so limited, it cannot be presented at all. The object of said act is to compel the mortgagee to look primarily to the mortgaged premises for payment, aud to limit the time for suing upon the bond for deficiency to six months from the date of sale. It would be a perversion of the law to so construe it, that, in case of the death of the obligor before the foreclosure sale, his personal liability on the bond could not be resorted to. There is nothing in the language of the act which indicates an intention to deprive the bondholder of his rights of action under any circumstances, provided he sues within the limited time."

In the case of Allen v. Allen, 34 N. J. Eq. 493, Vice-Chancellor Dodd held that the 1880 statute simply regulated the remedy, but did not destroy or take it away. The opinion below refers to the statement of Vice-Chancellor Van Fleet in Toffey v. Atcheson, 42 N. J. Eq. 182, “that all that this statute attempts to do is to prescribe a new rule of practice.55 'Wiih the exception of the cases of State v. Wilson, supra, and Atkinson v. Atkinson, supra, the statute has been looked upon by our courts since its enactment forty-three years ago as a statute relating solely to remedy and 'procedure. As pointed out in the opinion below, it must be liberally construed to seek the end for which it was apparently designed, but strictly construed if it be insisted that the purpose is to alter fundamental rules of law and rights. We think the wording of the statute, title and body, clearly makes it one of procedure only, and not one abolishing the fundamental doctrine of exoneration from the personal estate of lands from debts created by a testator or ancestor.

The decree of the court of chancery is affirmed, with costs.

For affirmance — Ti-ie Ci-iiee-Justice, Trenciiard, Parker, Kaxisch, Black, Katzenbaci-i, White, Heppeniieimer, Gardner, Ackerson, Yan Buskirk—11.

For reversal—None.


author: IvATZENRAOH, J

text:
    David C. Reed et al., respondents-complainants, v. Soloman Docterman et al., appellants-defendants.
    [Argued June 22d, 1923.
    Decided November 19th, 1923.]
    D. and wife are the owners of a tract of land at the southeast corner of Atlantic avenue and Stenton place, in Atlantic City, upon which there is erected a dwelling-house. This tract is a part of a restricted area. The original plan of the entire restricted tract plotted the lots oji said corner as fronting on Atlantic avenue. Lots fronting on Atlantic avenue were not restricted to the erection of dwelling-houses. Among the restrictions affecting Atlantic avenue lots was one to the effect that the dividing lines of said lots were not to be changed. An agreement was subsequently entered into by the interested owners by which the restrictions as to dividing lines was voided. It was further provided in said agreement -that no dwelling-house should be erected on the lots now owned by D. and wife nearer than seventeen £eet to Stenton place. D. and wife proposed to change the said dwelling-house by an addition on the Atlantic avenue side of said premises, to be used as a store, with an entrance on Atlantic avenue. A preliminary injunction was allowed which restrained them from erecting any addition to be used as a store. Held, (1) That said agreement voided the restriction tHat the dividing lines on Atlantic avenue should not be changed and did not impose on the lots of D. and wTife a restriction that they were to be used only for the erection of a dwelling-house; and (2) that the order allowing a preliminary injunction should be reversed.
    On appeal from the court of chancery.

      Messrs. Bourgeois & Coulomb, for the defendants-appellants.

      Messrs. Cole & Cole, for the complainants-respondents (Mr. John B. Black, of counsel).
   The opinion of the court was delivered by

IvATZENRAOH, J

This is an appeal from an order of the court of chancery allowing a preliminary injunction.

The appellants are the owners of the property located at the southeast corner of Atlantic avenue and Stenton place, in the city of Atlantic City. The lots comprising the appellants’ property are part of a tract of land formerly owned by Frederick Hemsley. This tract was, pursuant to a general plan, laid out by Mr. Hemsley into blocks and lots. From the plan, which was filed in the Atlantic county clerk’s office, lots were sold subject to carefully prepared building restrictions and covenants which were inserted in all deeds made by Mr. Hemsley to purchasers. The first four paragraphs of these restrictive covenants relate to the location of the buildings upon the lots, the erection of bay windows, the fronting of the buildings upon the streets, &c.

The fifth paragraph and the portions of the sixth paragraph pertinent to the present case are as follows:

“5. None of the foregoing restrictions are to apply to any lots on Atlantic avenue, or side or cross avenues, northwardly therefrom (corner lots on Atlantic avenue considered as being on Atlantic avenue) ; except, that dividing lines of the lots lying on Atlantic avenue, or between Atlantic and Arctic avenues, as laid on said maps, shall not be changed. *
“6. * * * Warehouses, storehouses, carpenter or paint shops, stores or buildings, for general merchandise business, or other like buildings or uses are prohibited; except on lóts fronting on Atlantic avenue and on lots lying northwardly of the northerly line of Atlantic avenue.”

The plan numbers of the appellants’ lots were 2804, 2806 and 2808. These lots, as originally laid out, fronted on Atlantic avenue. Together, they had a frontage on Atlantic avenue of seventy-two and live-tenths feet and a depth of one hundred feet. Soon after the appellants’ lots and the other lots at the corners of Atlantic avenue and Stenton place were sold it became apparent that the Stenton place corners would be improved if the lots fronting on Atlantic avenue could be considered as lots fronting on Stenton place. The restrictions, however, provided “that dividing lines of the lots lying on Atlantic avenue * * * shall not be changed.” To void this restriction it was necessary for the owners of the lots in the restricted area to make an agreement which would release the owners of the Stenton place corners from the operation of this restriction. On March 12th, 1900, such an agreement was entered into by Mr. Hemsley and all the others interested with one exception, and was duly received in the Atlantic county clerk’s office on September 13th, 1900, and recorded. This agreement recites the restrictive provision of paragraph 5 regarding the dividing lines of Atlantic avenue lots not -being changed and its application to certain lots, including the lots 2804, 2806 and 2808. The agreement also recites that it has been agreed that the lines dividing said lots should not be unalterably fixed but that the purchasers thereof should have the right to build a building covering more than one of said lots. The agreement then releases the right to the enforcement of the restriction that the dividing line of the lots lying on Atlantic avenue shall not be changed, and gives to the owners of the lots mentioned the right to use one or more of said lots together for building purposes without regard to the intervening lines as laid out on the plan. The agreement further provides that no dwelling-house shall be erected on the lots lying on the southerly side of Atlantic avenue, the main body of which shall be nearer than seventeen feet from the property line of Stenton place, south of its intersection with the southerly line of Atlantic avenue. This proviso applies to the lots of the appellants.

On the appellants’ plot, which is fifty feet on Stent'on place and extends back therefrom seventy-two and five-tenths feet, of which the northerly line is the southerly line of Atlantic avenue, there was erected a dwelling-house seventeen feet back from the property line of Stenton place. This house faces the west. On the Atlantic avenue side there is a porch eight feet in width and a two-story bay window extending to the line of Atlantic avenue. The appellants made known their intention of removing the porch and building an addition to the building in its place, to be used as a store with the store entrance on Atlantic avenue. The addition to be erected is to extend no farther westwardly than the westerly line of the present building. The respondents, upon being apprised of this proposed change in said building, filed a bill in the court of chancery to enjoin the proposed change in the building. Upon the presentation of the bill an order to show cause was allowed. The case was subsequently heard upon the bill and affidavits and answering affidavits. The learned vice-chancellor before whom the case was argued filed his conclusions allowing the order granting a preliminary injunction. It is this order from which an appeal has been taken. The order provides that the injunction shall restrain the appellants from “erecting, constructing, altering or completing any new or old building, or any part thereof, or addition thereto, or improvement upon or in any building at the southeast corner of Stenton place and Atlantic avenues, in the city of Atlantic, which shall be nearer than seventeen feet to the property line of Stenton place, which shall be used for any other purpose than a dwelling-house, which shall change the intervening lines between the lots as established by the original Hemsley restrictions, which shall have a porch higher than six feet above the established grade, which shall result in more than one dwelling upon the said lot or which shall contemplate the facing of stores on the Atlantic avenue side of said lot.”

The decision below appears to have been rested upon the theory that the appellants’ use of their property was restricted to' a dwelling-house and that evidence of the erection of buildings’other than dwelling-houses on two other corners o£ Stenton place and Atlantic avenue wa£ not sufficient to justify the court in holding that there had been an abandonment of the general restrictive plan for the erection of dwelling houses only on the corner lots on Atlantic avenue and Stenton place. This view we think rests upon a false premise. The original restrictions did not prevent the building of a store upon the lots now owned by the appellants. The fifth paragraph of the restrictions to which attention has been called expressly exempted the appellants’ lots from all of the restrictions contained in the four preceding paragraphs which included the restriction that private dwellings only should be built upon the premises. The sixth paragraph, whch prohibited among other things stores or buildings for general merchandise business expressly excepted the lots fronting on Atlantic avenue. Thus prior to the making of the agreement of March 12th, 1900, stores for business purposes could be erected on the Atlantic avenue lots. The agreement of March 12th, 1900, did not change this situation. It merely voided the restriction which prohibited the changing of the dividing lines of the lots lying on Atlantic avenue and imposed the building restriction on the corner lots on the southerly side of Atlantic avenue that no building should be built nearer to Stenton place than seventeen feet, which could have been done prior to the execution of the agreement. The agreement makes no reference to the erection only of dwelling-houses on the lots in question in consideration of tbe voiding of the restriction as to the dividing lines of the lots. Such a provision cannot be read into the agreement or implied from anything therein contained. The appellants’ lots being free from any restriction against building stores thereon prior to the making of the agreement remained so after the agreement was made. The respondents call attention to a proviso in'the agreement of March 12th, 1900, reading as follows: “Provided, however, that nothing herein shall empower any purchaser of said lots to lay out any lot or lots that shall have its front or width facing on said Atlantic avenue less than that laid out on the map or plan of lots duly filed in the Atlantic county clerk’s office as aforesaid,” and claim that this clause will be violated by the proposed store. We are not told in the respondents’ argument in what way the proposed building will violate this provision and we cannot see the applicability of the proviso above quoted to the present case. The construction herein given of the purposes a'nd provisions of the agreement of March 12th, 1900, leads us to the conclusion that the court of chancery erred'in allowing the order for a preliminary injunction. The order for the issuance of the preliminary injunction is reversed, with costs.

For affirmance—None.

For reversal—Ti-ie Chief-Justice, Trenchard, Parker, TCat,Tacit, • Black, Katzenbaopi, White, Heppeni-ieimer, Ackerson, Yan Buskirk—10.


author: White, J.

text:
    Mary J. Kelly, petitioner-appellant, v. Joseph P. Kelly, defendant-appellee.
    [Argued June 22d, 1923.
    Decided November 19th, 1923.]
    It is not necessary to begin a desertion that the deserter intends to desert at the time he leaves his home. If the proof establishes that he, at any time while absent from home, determined that from thenceforth he would desert his wife, and that determination is persisted in willfully, continuously and obstinately for the statutory period, that will constitute desertion within the statute.
    On appeal from the court of chancery.

      Messrs. Dole & Cole, for the appellant.
   The opinion of the court was delivered by

White, J.

This is an appeal by the wife from a decree of tbe court of chancery dismissing her petition for divorce against her husband on the ground of desertion. The jurisdictional facts were found by the special master to have been established. The evidence indicates that the husband was a petty gambler and “pool shark,” who was intoxicated a large part of his time, and he provided so inadequately for his wife and child that the wife was compelled to leave him, taking their child with her, and to go to work as a saleswoman in a store in Atlantic City. This occurred in May of 1912, they having been married in 1902. Upon this'subject the master reports: “I find and report that there was one living child born to the marriage, to wit, Marie Kelly, who lives with her mother and who is eighteen years of age. While living in Philadelphia the petitioner and defendant did not get along very well and as a result a separation occurred. The reason given by the petitioner I believe to be true; but I do not find any corroboration thereof in the testimony. However, whether I am correct or incorrect in this conclusion, it is immaterial, because after she came to Atlantic City in 1912, he came to Atlantic Cit}r, visited her at her house, remained with her overnight, re-established the relationship of husband and wife, discussed their conditions and then left for Philadelphia. According to her statement he asked leave to take their furniture out of storage, as he had a new position, paying him $12 per week, and out of that amount he would give the petitioner $10 weekly with which to maintain the house, clothing, gas and heat. To this proposition the petitioner said she did not think it could be done; but that if he waited until he got more salary she whuld go back to him.”

After that the husband never contributed anything towards his wife’s support, and during the period of nine years which elapsed before the filing of the petition in 1921 the husband never made any effort to establish a home for his wife, nor did he ever visit her or ask her to return to live with him.

The special master took the view that the separation of 1912 until conditions improved was by mutual consent, and that there being no proof that either party had abandoned this position there was no willful and obstinate desertion. This we think was error.

The consent of 1912 was obviously a mere temporary arrangement and was so understood by both parties. The wife was to keep on with her work in her position in Atlantic City, not indefinitely or permanently, but merely until the husband was able to get more salary than the $12 per week, which his new position was then paying him, and which both parties seem to have conceded was insufficient to support tire family. IVe do not think that such a temporary arrangement operates to justify the husband in entirely abandoning his wife and his duties to her thereafter.

It is well settled in this state that: “It is not necessary to begin a desertion that the deserter intends to desert at the time he leaves his home. If the proof establishes that he, at any time while absent from his home, determined that from thenceforth he would desert his wife, and that determination is persisted in willfully', continuously and obstinately for the statutory period, that will constitute desertion within the statute.” Carroll v. Carroll, 68 N. J. Eq. 727; Foote v. Foote, 71 N. J. Eq. 273; Byrne v. Byrne, 93 N. J. Eq. 5.

In the case of Foote v. Foote {supra) the petition for divorce was filed in 1902 and there had been, as here, a tem]3orary separation (in 1892), because of the inability of the husband to support the wife. She went to live with her mother and he, with her consent, accepted employment in the State of Texas, hoping to succeed there and to eventually send for his family. Subsequently, as was said by this court in its opinion by Judge Vroom: “After a long silence the defendant, in September, 1893, returned to his mother’s house (which was in the same town where his wife was living); _ but not to his wife; nor has he ever returned to her, nor offered to resume the marital relation, nor to provide for her, as in duty he was bound to do. This conduct is what constitutes the actual desertion of the complainant on the part of the defendant. When the intention to desert became fixed in the mind of the defendant the complainant has been unable to say; but his actions and the corrobative circumstances under which the circumstances took place, can leave no doubt that such a determination was reached long prior to the two years before the filing of the bill in this case.” It is true that in the Foote Co.se there was evidence of a letter from the wife to the husband calling upon Mm to return to her and to support her. Where, however, as in the present case, the consented to arrangement was so clearly temporary, and the period, amounting to nearly nine years, of utter abandonment .by the husband of his wife and of his duties to her, is so eloquent of his complete desertion of her we do not think that the absence of a demand by her that he discontinue this abandonment and desertion and that he perform the duties towards her which the law requires of him is an essential element.

We think, therefore, that the decree appealed from should be reversed and the record will consequently be remitted to the court of chancery in order that a decree granting the divorce as prayed may be entered by that court.

For affirmance•—None.

For reversal—The Chibe-Justice, Tren chard, Parker, .Kalisch, Black, Katzenbach, White, PIeppenheimer, Ackerson, Van Buskirk—10.


author: Ackerson, J.

text:
    Leon Walkowitz and Rosa Walkowitz, complainants-appellants, v. Harry Walkowitz, defendant-respondent.
    [Submitted June 19th, 1923.
    Decided November 19th, 1923.]
    1. A certificate of acknowledgment made by a duly authorized officer is prima facie evidence that the grantors therein named executed the instrument to which it is attached as their voluntary act and deed.
    2. Both of the grantors named in a deed denied that they executed it and sought to have it set aside for that reason. The certificate of acknowledgment is in due form and the grantee, his wife and the master who certified to the acknowledgment, all testified that they saw the grantors execute the deed; and four other witnesses, three of them disinterested, testified to acts and circumstances, including the subsequent payment of rental for part of the premises by the grantors, which indicated conduct highly persuasive of the conclusion that the grantors had parted with the title to the grantee. Held, that the manifest weight of the evidence clearly established the fact that the grantors actually executed the deed.
    3. Possession of a deed by the grantee, duly executed and acknowledged by the grantor, is presumptive evidence of the delivery thereof at the date of the acknowledgment.

      4. Acts or declarations of the grantor and grantee, which, taken in connection with the surrounding circumstances, indicate that the parties intended to deliver the deed, and believed that they had done so, will be held to be a delivery.
    On appeal from a decree of the court of chancery dismissing the bill of complaint.

      William Everett, for complainant-appellant.

      Filbert L. Rosenstein, for defendant-respondent.
   The opinion of the court was delivered by

Ackerson, J.

This is an appeal from a decree of the court of chancery dismissing a bill of complaint filed by the appellants, Leon Walkowitz and Rosa, his wife, to set aside a deed purporting to have been executed and delivered by them to the respondent, Harry Walkowitz, a brother of the appellant, Leon Walkowitz, for certain ■ lands in the city of Paterson, upon the ground that the appellants had never executed the deed. The premises described in the deed had theretofore been held by the appellants as tenants by the entirety, and the deed bears date January 22d, 1921, and purports to have been acknowledged by each of the appellants before Abram Klenert, a master in chancery of this state, on the same day, and his certificate of acknowledgment, as such master, appears in due form upon the deed. He also signed the same as the subscribing witness to the execution thereof by the appellants, both of whom were illiterate and unable to write their names in English, and the deed purports to have been signed with their respective marks.

In this state a certificate of acknowledgment made by a duly authorized officer is prima facie evidence that the grantors therein named executed the instrument to which it is attached, as their voluntary act and deed. March v. Mitchell, 26 N. J. Eq. 497; Colonial Bldg. Assn. v. Griffin, 85 N. J. Eq. 455, and Oppenheim v. Oppenheim, 91 N. J. Eq. 160.

The only evidence offered by the appellants to overcome the presumption of the due execution of the deed in question is the testimony of the appellants themselves, both of whom testified that they did not sign the deed nor affix their marks thereto. As against this evidence, however, we have the direct and positive testimony of three witnesses who swore that they saw the appellants affix their marks to the deed. These witnesses are the respondent, his wife, Eva Walkowitz, and Abram Klenert, the master in chancery in whose office the transaction is alleged to have taken place, and who has not been shown to have any interest in this controversy.

The respondent and his wife testified that they were both present in the office of Abram Klenert on January 22d, 1921, and saw both of the appellants execute the deed in question, by writing their crosses thereon, and that the respondent bought the property from the appellants for $4,600, of which $1,000 was paid in cash, $2,200 represented a first mortgage on the property, payment of which was assumed, and the remaining $1,400 was secured by a bond and second mortgage on the premises made by the respondent and his wife to the appellants, which the appellants admit were later turned over to them in an envelope addressed to them and bearing the name and office address of the master in chancery, Abram Klenert, and were produced by them at the hearing of this cause. Eva Walkowitz further testified that the respondent paid $100 on account of the principal of this mortgage, and produced a receipt for $100, which the appellant Rosa Walkowitz admitted had been signed by her.

Abram Klenert, a reputable member of the bar of this state, testified that a few days prior to January 22d, 1921, the appellant Leon Walkowitz came to his office with his brother, the respondent, and directed the preparation of the deed in question and the $1,400 bond and mortgage, and that on January 22d, 1921, both of the brothers and their wives came to his office and executed the papers. He testified in detail as to what happened on this occasion and how the appellants made their crosses on the deed in question, and he related how after the papers had been prepared the brothers agreed; that the appellant Leon Walkowitz should remain in possession of a part of the premises, as tenant of his.brother, the respondent, and that because of a reduction made in the rent no interest was to be charged on the bond and mortgage, which necessitated the redrafting thereof, and that at the close of the transaction the papers were left with him to attend to the recording thereof, which he did, and that it was agreed that the respondent should pay, and he later did pay, the whole cost of preparing and recording the same.

In addition to these witnesses who testified directly to the execution of the deed by the appellants, the respondent produced the teller of the Hamilton Trust Company at Paterson, who testified that on January 22d, 1921, the sum of $1,000 was transferred at his institution from the account of the respondent to that of the appellant Leon Walkowitz; respondent’s daughter testified that she collected rent from her uncle, 'Leon Walkowitz, for a part of the premises in question for about half a year after the transfer in question and turned it over to her mother, the respondent’s wife, and two of the tenants of other parts of the same premises also testified that after the date of the alleged transfer of title the appellant Leon. Walkowitz came to each of them with the respondent’s wife and told them that he had sold the property and that they should pay the rent to her, and to each of these tenants he explained that he. had sold the house to his brother because it was too much expense and he couldn’t fix it.

The appellant Leon Walkowitz admitted that his brother, the respondent, came to see him about purchasing the property and that he gave his brother the old title deeds, and that the respondent later told him to go to Abram Klenert’s office, which he did on two different occasions, just before the date of the deed in question, but did not find him in, and both appellants admit that after the date of the transaction in question they began paying rent to 'the respondent for that part of the premises continued to be occupied by them, and continued to do so until the appointment of the receiver in this cause. Thus the appellants by their own conduct give the ring of truth to the respondent’s testimony, and we find no difficulty in concluding that the manifest weight of the evidence clearly establishes the fact that the appellants actually executed the deed in question.

The appellants further contend that there was no delivery of the deed from the appellants to the respondent and hence the transfer of title was never completed. This question is not raised by the pleadings, but it may, nevertheless, be answered briefly. The rule is well established that the possession of a deed by the grantee, duly executed and acknowledged by the grantors, is presumptive evidence of the delivery therof at the date of the acknowledgment. Benson v. Woolverton, 15 N. J. Eq. 158; Terhune v. Oldis, 44 N. J. Eq. 146, and Collins v. Collins, 45 N. J. Eq. 813. The appellants having confined their proof to their contention that the deed was never executed, and this issue having been found against them, thereby establishing that the deed was duly executed, the presumption of delivery, raised by the presence of the certificate of acknowledgment in due form and the custody of the deed by the grantee is unshaken. Furthermore, the delivery of a deed is a matter of intention, rather than action in definite form. Acts or declarations of the grantor and grantee, which, taken in connection with the surrounding circumstances, indicate that the parties intended to deliver the deed, and believed that they had done so, will be held to be a delivery. Hildebrand v. Willing, 64 N. J. Eq. 240. So, in the instant case, the facts and circumstances already related clearly show that it was the intention of the appellants to make a delivery of the deed.

The conclusions of the vice-chancellor are amply sustained by the evidence and the decree must be affirmed.

For affirmance ■— The Chief-Justice, Trenchard, Parker, Kaxisoh, Black, Katzenbaci-i, White, Heppenpibimer, Gardner, Ackerson, Van Buskirk—11.

For reversal—None.