author: The Ordinary.

text:
    Eliza Koegel and Julia Heinz v. Henry W. Egner and John F. Zimmerman et al.
    1. Inebriety, though long continued and resulting occasionally in temporary insanity, does not require proof of lucid intervals to give validity to the acts of the drunkard, as is required where general insanity is proved, consequently, where habitual intoxication is shown, there will be no presumption that incapacitating drunkenness existed at the time of making the will.
    2. If it be conceded that bona fide attempts to commit suicide and accomplishment of suicide manifest a deranged mind, it will not follow that such derangement is inconsistent with ability to make a will. It may exist with testamentary capacity.

      3. Proof of mere attempts to commit suicide and suicide, without more, exhibit, at best, but a temporary mental affliction, having no reference to antecedent or subsequent periods of time.
    4. Where a will in English w'as drawn for a German, who possessed little familiarity with the English language and was habitually intoxicated, by his partner in business, who supervised the execution of the will and took substantial benefit under it, the courts, upon allegation of fraud or undue influence in the production of the instrument, will look upon such circumstances as indicia of fraud or undue influence, and will suspiciously weigh those circumstances in reaching its conclusion upon the issue whether the instrument was the product of fraud or undue influence. If they be not enough to raise a presumption against the instrument they will, at least, induce a suspicious scrutiny.
    On appeal from a decree of the Essex county orphans court, which, upon proof, in solemn form {per testes), of a paper purporting to be the last will of August Meis, affirmed the prior admission of that paper to probate as such will by the surrogate of Essex county.

      Mr.', Charles Borcherling and Mr. Schuyler B. Jackson, for the appellants.

      Mr. William B. Guild, for the respondents.
   The Ordinary.

August Meis was by birth a German, and by occupation a tanner. For many years before his death he lived in the city-of Newark and carried on business there. He committed suicide by shooting himself, in the yard of his factory, on the 23d of August, 1894, leaving him surviving, as the natural objects of his bounty, his widow and three children by a former wife, a son and two daughters. The daughters were the contestants below and are the appellants here.

The documents in dispute are a will, dated on the 21st of December, 1892, and a codicil thereto, dated on the 26th of September, 1893.

They are impeached by the appellants upon the grounds — -first, that the testator was mentally incapable of making them when they were respectively executed; and second, that he was unduly influenced to make them, or they were fraudulently imposed upon him, by Henry W. Egner, his business partner.

With the exception of the signatures of Meis and the subscribing witnesses, the documents are in the handwriting of Egner, who, by them, is appointed one of their executors, and, indirectly, is made the recipient of other benefit and advantage, to which I will presently refer.

The proofs show that although Meis could speak English and, with some difficulty, read and write it, he was familiar with and habitually used the German language. About eight years before his death he entered into partnership with Egner in the business of conducting a tannery in Newark, which furnished employment for some thirty or forty men and was a prosperous- and paying concern. His principal occupation in that business was the superintendency of the manufacturing and the sale of the products of the factory, while Egner, who was more proficient in the English language, did the office work — that is, kept the books, carried on the necessary correspondence and attended principally to the financial part of the business. The proofs, however, show that at times Meis was obliged to perform Egner’s duties and that he possessed a sufficient knowledge of English to do so.

For fifteen or twenty years prior to his death Meis was addicted to the excessive use of intoxicating liquors, so that he was frequently drunk and occasionally remained so for days at a time. In that condition, at home, he was irritable, violent and destructive, acting sometimes as though bereft of his reason. His daughters say that at times he would be so violent that his family, in fear, would fly from the house, and he would break the dishes and furniture, and that once, while in that condition, he was so far demented as to remove his clothing and put it in the stove to burn. One of his daughters thinks that his drunken sprees would average three a week. The other says, generally, that he was constantly drinking and for years had been a brute. It is testified also by the daughters, in the vague and general terms which characterize the greater part of their testimony, that upon several occasions he attempted to take his own life. This testimony fails to give the particulars of those several attempts or any account of the causes which led to them. The approximate dates of two only of the attempts, both by hanging himself, are stated, one immediately after the death of his first wife and the other about two years before his own death. It does not appear whether or not the attempts at suicide and the accomplished suicide were referable to present intoxication or to nervous despondency attendant upon recovery from some continued debauch or to other causes. That they were attributable to his habits is probable, for Mrs. Heinz says that his condition was caused by only drinking; it was nothing but drinking.”

It is admitted by the appellants that their father, when sober, was an industrious and competent business man.

It is not shown what his relations with his son were. His daughters complain of him as having been brutal at home, and Mrs. Heinz says, vindictively perhaps, that after the death of his wife, several years before the will was made, he became so debased as to propose to her that she lead an incestuous life with him. She adds that she recounted this proposition of her father to a neighbor and to his second wife, and thus, possibly, she discloses a-reason why the father may have limited his bounty to her and her sister.

The daughters both married, and when the will was made were living with their respective husbands.

By the disputed will Meis bequeaths $2,000 to each of his daughters and $1,000, with his household effects, to his widow, and devises to his son, August Meis, Jr., all his real estate and bequeaths to him his half interest in the tannery business of Meis & Egner, requiring the son, however, to share the homestead equally with the testator’s widow and pay her $4 each week during her life, and to pay all taxes, insurance, water rents, assessments &c. imposed upon the homestead. He also prohibits the son from mortgaging and selling the homestead, and provides that at the death of the son the -homestead shall go to his children, and, if he should not leave a child or children, to the children of the testator’s daughters.

Doubt is expressed whether the latter proviso is not applicable' also to the business real estate.

The testator was the owner not only of one-half of the business of Meis & Egner, but also of one undivided half of the real estate which constituted the tannery plant.

Another important feature of the will is that it enjoins the' son to become the partner of Egner in the father’s place and to continue the tannery business, and forbids him to sell his interest in the tannery real estate without the consent of Egner.

Egner and John F. Zimmerman are appointed the executors of the will.

The codicil states that on the 4th of April, 1893, the testator paid his widow $1,000 and that therefore the bequest of that sum to her in the will is revoked.

The proofs do not disclose the value of the properties left to the son, but from their description enough appears to satisfy me that his share in the estates was much greater in value than the legacies to his sisters, even though the charge upon it in behalf of the widow and his limited and incomplete estate be taken into consideration.

It does not appear that fixed mental disease resulted to Meis from his habitual and excessive use of intoxicants, nor does a presumption to that effect arise either from the proof of his habits or from such proof coupled with the testimony that at times he attempted to commit suicide and eventually did take his own life.

It is established, by abundant authority, that inebriety, though long continued and resulting occasionally in temporary insanity, does not require proof of lucid intervals to give validity to the acts of the drunkard, as is required where general insanity is proved, consequently where habitual intoxication is shown there will be no presumption that incapacitating drunkenness existed at the time of making the will. Such a condition at that time must affirmatively appear, or the presumption of capacity will prevail. Lee’s Case, 1 Dick. Ch. Rep. 193, 200.

“It is not the law,” said Chief-Justice Denio, in Peck v. Cary, 27 N. Y. 9, 23, “that a dissipated man cannot make a.contract or execute a- will, nor that one who is in the habit of excessive indulgence in strong drink must be wholly free from its influence when performing such acts. If fixed mental disease has supervened upon intemperate habits, the man is incompetent and irresponsible for his acts. If he is so excited by present intoxication as not to be master of himself, his legal acts are void,, though he may be responsible for his crimes.”

This judicial utterance, I think, is an excellent epitome of the conclusion of the courts upon this subject. I have had occasion to apply to it in cases which I have heretofore been called upon to decide. Bannister v. Jackson, 18 Stew. Eq. 702; S. C. on appeal, 1 Dick. Ch. Rep. 593; Fluck v. Rea, 6 Dick. Ch. Rep. 233 ; S. C. on appeal, 6 Dick. Ch. Rep. 639.

We generally attribute the act of self-destruction to a morbid condition of the mind, which may be either fixed insanity or a temporary surrender of reason. It is regarded as being in the latter condition where the object of the intended suicide is to secure-relief from present pains, either in realization of affliction (mental or physical), disgrace or disaster, or where the impelling causéis the apprehension of such evils, for we cannot believe that a mind can be in normal health, even though it be cowardly and skeptical as to the future, if it accepts the uncertainty of the state-after death as a relief from present mental or physical suffering. But this latter species of mental derangement, if it can be said to exist, “ may be and frequently is consistent,” as was said by Chief-Justice Parker in Brooks v. Barrett, 7 Pick. 94, “with the exercise of usual discretion in the management and disposition of property; indeed, the power of reasoning upon other subjects may be wholly unimpaired. The law does not consider the act of suicide as conclusive evidence of insanity. On the-contrary, it is held as a crime unless insanity be proved.” And more than this, it is, in its very nature, transitory, and the proof of its existence, by mere proof of an attempt at suicide, or of the act of suicide itself, by no means establishes its existence at an antecedent or subsequent period of time. No presumption of fixed or lasting mental aberration arises upon such proof.

This case presents a man who, during and after protracted excessive indulgence in the use of intoxicating liquors, in all probability suffered from great nervous prostration and corresponding mental despondency. It may be (the proofs, as I have said, do not give any information upon the subject) that he was in this condition when his attempts at suicide and self-destruction occurred. It is well known that speedy and complete recovery may follow such condition.

It follows that the burden, in this case, was upon the contestants to establish incapacitating temporary insanity or drunkenness in Meis at the very times when the will and codicil were made. Elkinton v. Brick, 17 Stew. Eq. 154, 158; Lee’s Case, 1 Dick. Ch. Rep. 194, 201; Fluck v. Rea, 6 Dick. Ch. Rep. 233, 234; Sanderson v. Sanderson, 7 Dick. Ch. Rep. 243, 251. That they have failed to bear that burden is too clear to admit of discussion. They did not attempt it. But on the other side the subscribing witnesses produced, and Mr. Egner, relate particularly that which occurred at the execution of the will and codicil, and, if the witnesses speak truly, exhibit the testator to have been at such times in full possession of his faculties.

Passing to the insistment that the will and codicil were the products of undue influence or fraud, we find the contention to be based upon the participation of Egner in the preparation of the papers and the advantages he derives from them. Both the papers were drawn by him. They were both executed under his personal supervision, immediately after their preparation. He was the only partner of the testator, and as such, and because of his superior knowledge of the English language, had a strong hold upon the testator’s confidence. The will thus prepared by him not only appointed Egner an executor, but required the testator’s son to immediately, upon his father’s death, enter into partnership with him so that the existing business of the firm <l shall,” adopting the language of the will, be carried on without delay, hindrance or interruption of any person or persons whomsoever,” and forbade the son selling any part of the business property, except by Egner’s consent.

These circumstances are usually reckoned among the indicia of undue influence and fraud, and excite suspicions, especially an case of a testator who suffers from some mental or physical .infirmity which renders him an apt subject for imposition. Here the appellants point to the habits of Meis and to his lack of familiarity with the English language and to proof that he had some difficulty in hearing.

The circumstances certainly arouse suspicion and demand their critical consideration by the court, though, in view of other .circumstances in the case, they do not appear to be strong enough ■ to raise a presumption against the instrument.

Mr. Egner was sworn as a witness in this court. He has been registrar of deeds for Essex county and appears to be a man of fair intelligence. He says that he was accustomed to occasionally draw wills; that Meis first requested him to draw the will in question and later the codicil; that some time before the will was prepared Meis' instructed him as to its contents, and that after it was drawn, on the morning of its execution he and Meis went over it, Egner reading it, paragraph by paragraph, in both English and German, so that Meis as perfectly understood it as Egner did ; that Meis wished his son to become Egner’s partner, and that Egner stipulated that if the son should become his partner neither partner should sell without the consent of the other, and that thereupon Meis said that it was his desire that his son should not have power to sell without the consent of Egner because there was a rumor that a railroad company, named, desired to buy the tannery property, and as the son was young and inexperienced he might be induced to sacrifice his interest if he had full power to sell, and upon such discussion the restriction upon the son’s power to sell was adopted.

If Mr. Egner is believed, the will was the deliberate and free act of Meis, upon a full understanding of the instrument, and when it was executed Meis was in full possession of his faculties.

I think that I should believe this witness not only because his narration is apparently candid, but because the contestants themselves satisfy me that their father, at least in a general way, understood the will. Mrs. Koegel says that eight or ten weeks before his death — that is, a year and a half after the will was made — her father was at her house and there complained that his son did not take an interest in his (the father’s) business, and did not do right by him, and therefore he would not do all for one child but would treat them equally - and Mrs. Heinz says that two or three months before his death her father came to her house in a state of intoxication and said, as I interpret her meaning, that he had made his will but was going to make it over again and give equal shares of his property to his children. Her language is, he was intoxicated, very full, and said he was going to make equal shares; that he had made his will but was going to make it all an equal share.” She adds that he said his son was not fit to conduct a tannery.

It is inferable from these declarations that he had become, at least temporarily, dissatisfied with and disappointed in his son, and that he contemplated the abandonment of previous testamentary intentions which gave the son his tannery interest and made the division of his estate among his children unequal.

More than this, the execution of the codicil nine months after the execution of the will, manifests a knowledge of the provisions of the former instrument in favor of his wife. The evidence of the witnesses as to the verity of the codicil as his act is corroborated by the production of the check with which the $1,000 was paid to his wife.

Undoubtedly the provisions of the will that the son should take his place in the firm of Meis & Egner and that the business should continue without interruption was advantageous to Egner, but it possessed also the same advantage for the son. Moreover, there is nothing which shows that Egner ever abused the confidence of his partner. On the contrary, the proof is that he tolerated the drunkenness of Meis, and instead of taking advantage of it for his own gain, in all probability, by his fidelity to his partner’s interests, saved his estate for him. Hence it is not surprising that that partner made him an executor of the will. These considerations, I think, overcome the suspicions engendered by the terms of the will and the participation of Egner in its execution.

I am satisfied that the disputed documents were properly admitted to probate, and will affirm the decree of the orphans court.


source: Caselaw Access Project

license: Public Domain

text:
    George Carey and James Montross, executors of the will of James Carey, deceased, v. Jennings A. Monroe and Laura J. Francisco, executor and executrix of the will of Sarah Ann Carey, deceased.
    1. The “family” of a decedent does not take title to the reservation which is contemplated in the fifty-second section of the Orphans Court act (&ev. p. 768) until selection shall be made as the statute requires.
    2. Where, by his will, a decedent has directed the payment of his debts and has bequeathed and devised the entire remainder of his estate, a reservation under the fifty-second section of the Orphans Court act will conflict with the will, and hence cannot be had.
    3. An exception to the account of executors must make objection to the jusness of the account in charge or discharge, and not merely seek the recovery of a demand from the estate.
    On appeal from a decree of the Passaic county orphans court.
    James Carey, while residing with his wife in Passaic county, on the 28th of April, 1892, died testate. By his will, which was dated three days before his death, he directed his executors to pay his debts and funeral expenses, gave to two grandchildren each $50, devised and bequeathed the remainder of his estate, real and personal, to his eight children in equal shares, and appointed executors with power to sell his real estate. No provision for the wife was made by the will, nor was she mentioned in it. The wife, Sarah Ann Carey, survived Mr. Carey six days, dying on the 4th of May, 1892, leaving a will which disposes of her estate. On the 13th of May, in the same year, the will of Mr. Carey was admitted to probate by the surrogate of the county of Passaic, and on the same day an inventory and appraisement of his personal estate, made by appraisers who were not appointed by the surrogate, was proved before the surrogate. On May 27th, in the same year, the will of Sarah Ann Carey was proved, and later the executors thereof inventoried her personal estate, including therein $200 which they claim is due to them from the estate of James Carey in virtue of the statute (Rev. p. 762 § 52), the payment of which they subsequently demanded from the executors of the will of James Carey. The money so demanded was not paich Later the executors of the will of James Carey filed their account, in which they asked credit for debts of the decedent and legacies bequeathed by his will which they had paid, and also for the payment of moneys in partial distribution of the remainder of his estate according to the terms of his will, and exhibited a balance exceeding $200 for further distribution under the will, but in which account they did not make any reference to the $200 demanded by the ■executors of Mrs. Carey. To that account the executors of Mrs. Carey’s estate excepted upon the ground that the accountants had refused to reserve goods and chattels, moneys and effects of the estate of James Carey, to the value of $200, for the use of their testatrix, and had refused to pay that sum to them after her decease.
    The orphans court sustained the exception and decreed that $200 be paid from the estate of James Carey to the executors of his wife’s will. From this decree the appeal considered is taken.

      Mr. John W. Griggs, for the appellants.

      Mr. Eugene Emley, for the respondents.
   The Ordinary.

The appeal presents two questions — -first, whether by exception, like that which is now considered, to the account of executors or administrators, the statutory reservation for the family of a decedent may be enforced, and, if so, second, whether Mrs. Carey took a title or right to $200 of her husband’s estate which survives to her representatives.

The statute (Rev. p. 762 § 52) is a growth from the statutes respecting executions, in pursuance of a legislative policy that neither a living debtor with a family, nor the family of a deceased debtor, resident with him in this state at his death, shall, without his express assent, be liable to be wholly impoverished by the payment of his debts. It provides that the wearing apparel of any person who shall die, leaving a family resident in this state, and goods and chattels, moneys and effects of his estate to the value of $200, shall be reserved to and for the use of his family against all creditors and before any distribution or other disposition thereof. It makes it the duty of the executor or administrator to apply to the surrogate, who is to appoint two discreet and judicious persons not interested in the estate and not of kin to the widow or children, who are .to be sworn to truly value the property, and who shall proceed to inventory and appraise all the goods and chattels, moneys and effects of which the decedent died possessed. It provides also, following the language of the act, that

“the ■widow of the deceased, or his executor or administrator, may select from such inventory, goods and chattels, moneys and effects to the value of two hundred dollars, and annex to said inventory a list thereof; and the goods and chattels, moneys and effects so selected shall thereupon become the property of the said family and remain for their use.”

The next section of the statute defines those who shall constitute the family entitled to the benefit of section 52, to be the widow and child or children, who shall reside in the family of the person dying at his death, and adds that nothing in section 52 “shall be permitted to conflict with the provisions of any last will.”

It is observed that the apparel of the decedent and the $200 in value of his personal estate are to be reserved against creditors and prior to any distribution or other disposition of the estate, if the reservation does not conflict with the provisions of his will. The statute contemplates that this reservation for the family, if due, shall be the first disposition of any part of the assets of the estate. The object of an executor’s or administrator’s accounting is to determine the amount of money with which he is chargeable. That amount is the balance in his hands after all proper charges shall be made against him, and he shall be credited with all lawful allowances. The office of an exception to an account is to question the justness of the account in failure to charge or in the discharge sought. The requirement of the statute, that the executor shall make reservation for the family against creditors and before any distribution or disposition of the estate, while uncomplied with, perhaps disentitles him to any discharge from his receipts because of payment to creditors or distribution until that duty shall be performed, and it may be, and, I think, is true, that the family, therefore, is interested in the estate and settlement of the account to the extent at least of this right, and, for the absolute security of the reservation, should be permitted to except to any allowance being made to 'the accountant for payments to creditors or for distribution or other disposition of the estate until the reservation shall be made. But the exception considered does not object to the account in any particular. It does not either insist upon charge or object to the discharge which the accountants seek. It merely objects that a duty remains unperformed and impliedly seeks to enforce performance of that duty through payment of money. Although called an exception to the account, it is in reality a demand that the executors may be required to do their duty by paying a sum of money to the exceptants. Any creditor, with equal propriety, might, by similar exception to the executors’ account, demand the payment of his claim and seek to have its validity established. That the orphans court regarded it as a mere money demand is manifested by the decree appealed from, that the accountants pay money. I think that the exception, in the form in which it was presented, should not have been allowed.

But I think that I should not rest the reversal of the decree upon this ground alone. The merits of the main controversy between the parties may and should be settled. The provision of the fifty-second section of the statute is the establishment of a pure bounty of the law for the preservation of the immediate family of a decedent, presumably dependent upon him, from the distress of extreme poverty at his death. It has for its objects defined individuals whom it intends to assist or relieve personally. It does not purpose to augment the estate of those individuals for the benefit of others who may be entire strangers to the decedent. In many cases the bounty is accorded at the expense of creditors who suffer from the insolvency of their debtor. It is apparent from its scheme and the detriment it may be to creditors, that while the courts should construe the statute with sufficient liberality to accomplish its charitable intent, they should not be too ready, in the absence of a clear manifestation in the law itself of a purpose to the contrary, to give it an interpretation which will tend to facilitate injustice to creditors for the benefit of others than the objects of the bounty. The statute considered, after provision for inventory, appraisement and selection for the family, concludes in this language: “And the goods and chattels, moneys or effects so selected shall thereupon become the property of said family and remain for their use.” The plain import of such language, by force of the words “ shall thereupon become,” is that, upon the selection, that which shall be selected, not having theretofore been the property of the family, shall “ become * * * thereupon ” its property. Before the selection it, with the other personal estate, is the property of the personal representative of the decedent for the execution of his trust and therein primarily reserved for selection for the use of the family. Until the selection is made and title to that which is selected is thereby secured to the family, all that the family has is a personal right to take by selection which does not survive to personal representatives. It is, perhaps, otherwise as to the wearing apparel, which is not dependent upon the selection (Mitcham v. Moore, 73 Ala. 542), but with that I do not now deal.

In reaching this conclusion I have examined many of the adjudications of other states upon statutes having a similar general object. They, of course, vary with the terms of the statutes passed upon, many of which, without doubt, contemplate the absolute bestowal of the bounty at the death of the owner of the estate. I have not been referred to, nor have I found, a case upon the statute exactly like our own. The principal value I have derived from the eases is in the reasoning upon which their respective conclusions are based. From a class of them, dealing with statutes which require some action to ascertain the bounty, such as an allowance by a court, an allotment by commissioners, a selection, and the like, I have been satisfied that in the interpretation of statutes giving this bounty to the family the courts, so far as the terms of the statutes will admit, should favor a construction which will extend, the bestowal of the bounty only to and through the persons for whom it is intended. Adams v. Adams, 10 Metc. 170; Cox v. Brown, 5 Ired. 194; parte Dunn, 63 N. C. 137; Barnum v. Boughton, 55 Conn. 117; Tarbox v. Fisher, 50 Me. 236; Henderson v. Tucker, 70 Ala. 381; Mitcham v. Moore, supra; Harden v. Pulley, 79 Ala. 381.

In the present case, before the decedent’s will was proved and before an inventory, appraisement and selection could be made, the widow, who constituted the family, died. I do not think that the right she took at the death of her husband survived to her representatives.

Upon another ground I reach the same conclusion upon the merits of the controversy.

It is noticed that the will of James Carey disposes of his entire estate. It directs the payment of all his debts and thereby indicates that he did not mean that there should be a reservation against creditors. It gives two legacies and bequeaths and devises the entire remainder and residue of his estate to his eight children, who were not living with him when he died and were therefore not of his family within the meaning of section 52 of the statute. Thus the will undertakes to dispose of the whole estate. If $200 is to be paid to the representatives of his wife’s estate, his will must, to that extent, be defeated. He had the right to disregard the bounty of the statute. The law which gives it life says that his will shall be supreme. The will leaves nothing undisposed of from which the bounty can be paid. Does there, under such circumstances, exist a conflict between the legislative bounty and the will such as the fifty-third section of the statute contemplates shall defeat the bounty ? I at first thought that perhaps, in interpreting the provision of the fifty-third section, the word “ conflict,” taken in its sense of violent active collision, should induce the holding that the will must expressly override the bounty of the fifty-second section, but after having regard to the whole statute I conceive the better opinion - to be that such was not the legislative intent. I conclude1 that if the will disposes of- the whole estate' the bounty is lost, the word “conflict” meaning that the will shall be supreme where the complete execution of its provisions does not admit, expressly or impliedly, of the bestowal of the bounty. See Mulford v. Mulford, 15 Stew. Eq. 68, 73.

I am of opinion that the decree appealed from should be reversed.


text:
    Henry A. Fluck and Jacob R. Wert, executors of the will of George A. Rea, deceased, v. W. Howard Lake, administrator pendente lite of the estate of George A. Rea, deceased.
    1. "Where an administrator pendente lite holds stock of a railroad company which he does not need .to convert into money to enable him to execute his trust, he will be justified in selling it only when he acts in so doing upon an honest and well-founded apprehension, predicated upon the exercise of reasonable care and caution, that to longer hold it will endanger or prejudice the estate.
    2. One holding moneys in trust, who makes use of them for his own purposes or suffers them to remain idle when they should be invested, will be charged interest upon them or held accountable for the profits made from their use.
    3. Commissions to an administrator will be rated within statutory limits in accordance with the actual pains, trouble and risk which his faithful performance of his duty has caused him; but no commissions will be allowed to him when he makes use of moneys belonging to the estate for his own purposes, and keeps meagre and inaccurate accounts, thereby involving the estate in expensive litigation. Nor will payment of the charges of his counsel in such litigation be allowed from the estate.
    On appeal from a decree of the Hunterdon county orphans court upon the settlement of account of W. Howard Lake as administrator pending contest of the will of George A. Rea, deceased.

      The appellants claim that the decree is erroneous because it does not charge the accountant a greater sum than $6,388.25 for two hundred and two shares of the capital stock of the Lehigh Valley Eailroad Company which he sold in August, 1893, and does not charge him with a greater sum than $352.50 for interest upon moneys of the estate which he suffered to lie idle or used for his private purposes, and because it allows him $625.97 for commissions as administrator and allows to his counsel $280 for their services upon the hearings upon the exceptions which were filed to his account, and because it allows to the counsel of another exceptant than the appellants, Nora Closterhouse, $140.

      Mr. John A. Bulloch, for the appellants.

      Mr. John N. Voorhees, for W. Howard Lake.
   The Ordinary.

The evidence shows that the par value of the stock of the Lehigh Valley Eailroad Company was $50 per share; that in June, 1892, when the administrator, Lake, inventoried it and had its value appraised, it was worth $58.50 per share; that in the summer of 1893, a dividend or dividends having been passed, its value fell to ten or twenty per cent, below par; that during the summer of 1893 Lake repeatedly declared to one of the appellants that he did not propose to sell the stock but would hold it and turn it over to the permanent representatives of the estate; that in May, 1893, he contracted to purchase from one Casterline a hotel, at a place called High Bridge, for $10,000, $4,000 of which would be represented by a mortgage for that amount, subject to which Lake was to take the property, and $6,000 of which Lake was to pay in cash; that the time fixed for the performance of this agreement to purchase was the 1st of September, 1893; that during July and August Lake endeavored to borrow the $6,000 needed for the cash payment; that on the 29th of August, without previous conference with the appellants or either of them, the accountant, accompanied by his counsel, went to the office of the Lehigh Valley Eailroad Company, in Philadelphia, and there consulted two gentlemen whom, I infer, were officers of the company, and after talking with them and being advised by his counsel to sell the sto<3k, went to a firm of brokers and had it sold for $31.75 a share, which was its market value on that day; that although he had accounts as administrator in two banks in Flemington, he deposited the brokers' check for the proceeds of the sale of the stock, on the 31st of August, in a bank at Lambertville, in his individual name, and on the same day drew upon that bank his check, to the order of himself, for $5,000 and had it certified by the bank, and on the next day, September 1st, took the. certified check to Clinton and' there, at the Clinton National Bank, received for it that bank’s check for $5,000, payable to his own order, and $500 in cash, which last-mentioned, check' he endorsed to Casterline as part payment for the hotel, and which $500 in cash he expended to Casterline in buying personal property in use at the hotel; that the remainder of the proceeds of the sale of stock was appropriated by him for his own purposes.

The appellant’s argument, from these circumstances, is that, failing to borrow the $6,000 he needed to enable him to carry out his agreement with Casterline, Lake determined to sell the stock he held as administrator and use the proceeds of sale for that purpose, and, at the same time, to put himself in position to-claim that he exercised due care and an honest discretion in the sale, and thereby to justify his action if it should thereafter be questioned, he took with him to Philadelphia his counsel and with his counsel went to the railroad office to inquire about the stock; also that, after the sale, in order that his use of the proceeds of his sale might not be known, he deposited the brokers’ check in the Lambertville bank, and took from that bank a check which he exchanged at the Clinton bank for its check and $500 in cash, and then gave the check of the Clinton bank and the cash to Casterline.

The circumstances proved show a measure of clandestinity in-the procedure of Mr. Lake, which stands in marked antagonism to. the truth of his professions of good faith, and concern for the interests of his trust, and leads to the belief that his testimony is not to be relied upon,

The inference which the appellants’ argument invokes is, at least, strong enough to create serious doubt as to the good faith of the administrator in making the sale, and to call for the full and clear disclosure of the information and conditions which induced his action, not from his mouth alone, but by the oaths of other witnesses who may show themselves to be entitled to belief. Here is presented an administrator pendente lite, who did not need to sell the stock to pay debts, who could not make distribution of the proceeds of such a sale (Benson v. Wolf, 15 Vr. 78), selling without previous conference with the permanent representatives of the estate for little more than half the inventory valuation of the stock, under circumstances of self-interest which must have strongly influenced his judgment and tended to sway him from fidelity to his trust, and then virtually secreting the1 fact of the sale by hiding away the proceeds thereof. To justify, any sale of this stock he should show that he acted upon an honest and well-founded apprehension, predicated upon the exercise of reasonable care and caution, that to longer hold the stock would endanger or prejudice the estate either by permanent decline in its value or by serious or permanent loss of income therefrom. Green’s Case, 10 Stew. Eq. 254.

The burden of proof rests upon him, for the matter is, in effect, discharged from that with which, in his accounting, he must be charged the inventory valuation. It may be possible that a reasonably prudent and cautious man would have sold as he did', but as his sale is tainted by motives of self-interest and was accompanied by secrecy, much more is needed to satisfy a court of its propriety than his unsupported testimony that he acted in good faith.

It is difficult to say what he should be charged for the stock. He should be held accountable, at the least, for the amount he received for it, and, I think, also for the difference between that price and a higher price at which a reasonably careful and prudent trustee, influenced by an honest intent to serve only the best interests of his trust, would have sold it for, If such a trustee would not have sold it at all prior to the accounting, then he should be charged with the price he realized for the 'Stock and whatever additional sum would be required to raise the price realized to the market value at the time of the accounting.

The proofs do not enable me to deal, in a satisfactory manner, further with this matter. It must go back to the orphans court, where opportunity must be given the accountant to supplement his proofs. If he fails for any reason to do so, he should be charged the difference between the amount he realized at his sale and the inventory value of the stock, for it does not appear that the stock was not, at the accounting, worth the inventory value.

The second objection to the decree is that the administrator should have been charged a greater sum than $352.50 for interest upon moneys of the estate which he used for his private purposes.

It is apparent from a comparison of the account which the administrator rendered to the court, with his bank account as administrator, that he never at any one time had all the estate’s moneys, with which he was chargeable, in bank to his credit as administrator. He has failed to give any satisfactory explanation of this circumstance. He has not even pretended to tell what disposition was made of the moneys which were not so deposited.

An examination of the debit and credit sides of his account demonstrates that, in June, 1892, he commenced his trust with upwards of $2,400, and that his subsequent receipts maintained the surplus in his hands, over his disbursements, at upwards of $2,200 at all times until August, when the surplus rose to more than $5,400, and September, when it was in excess of $5,900, and October, when it exceeded $7,100, and November, when it further increased to more than $7,700, and so-remaining till in January, 1893, it passed $8,000, and in April, ten months after his appointment, it reached nearly $11,000. In that month he paid a debt of the estate amounting to about $6,000, and thus had the' surplus reduced to about $5,000. Other receipts were had and other allowed disbursements were made, until late in July the surplus stood at a little more than $3,500, the lowest amount since the 1st pf August, 1892. His subsequent receipts, exclusive of the proceeds of the sale of the Lehigh Valley Railroad Company stock, were in excess of $1,400, and his subsequent disbursements' were less than $3,200, leaving him, at the accounting, a surplus of some $1,700 over the proceeds of sale of the railroad company stock.

For the purpose of paying debts or making other legitimate disbursements, the sale of the Lehigh Valley Railroad Company stock was not requisite, nor does he pretend that it was. At the end of November, 1893, when he was chargeable with more than $8,000, he had less than $50 in bank to his credit as administrator. Confessedly he used the entire proceeds of sale of the Lehigh Valley Railroad Company stock, and, I think, more than that sum, but precisely how much and at what times and for what periods, has not been made clear by the proofs.

I have no doubt of the justness of charging him interest upon the proceeds- of sale of the railroad company stock from their receipt to the date of the decree in the accounting, and, resting there, interest on the balance of account until its payment to the appellants. Under the proofs, I cannot, with certainty of doing justice, charge, him more.

• The interest upon the proceeds of the sale of the railroad stock, to the date of the decree of the orphans court, amounted to $374.93, a sum which is a little in excess of the interest charged-him by the orphans court.

He .is chargeable with that interest not only because he used the money upon which the $374.93 is calculated in his own affairs, but also because it was to the interest of the estate he managed, that such money,-immediately upon its receipt, should have been put where it would have yielded an income. As I have said, Mr. Lake was an administrator pendente lite, appointed to preserve the estate and without power to distribute. When the railroad stock was sold the will contest wás pending in the court of errors and appeals. The-sale was made more than two months before the argument of the case before that court was possible. If he did not invest, he'should,'at least,' have applied to the orphans court for direction as to his duty in dealing with' the money. Rev. p. 777 § 113; Hetfield v. Debaud, 9 Dick. Ch. Rep. 371. .He was in a situation where he should not have suffered the moneys to lie idle without the sanction of the orphans court, and should not have mingled them with his own funds or used them for his own purposes. King v. Berry, 2 Gr. Ch. 261; Frey v. Demarest, 2 C. E. Gr. 71; McKnight’s Exrs. v. Walsh, 8 C. E. Gr. 136; S. C. on appeal, 9 C. E. Gr. 498; Frost v. Denman, 14 Stew. Eq. 47; Hetfield v. Debaud, supra. If it had been made to appear that in the use of the money he made profits greater than the interest thereof, he would have been chargeable with those profits. McKnight’s Exrs. v. Walsh, supra.

The appellants further object to the allowance of any commissions to the accountant. The orphans court allowed commissions at the highest rate permitted by the statute. The accounts this administrator kept were meagre and replete with inaccuracies and errors. His testimony respecting his conduct in the management of the estate was vague and unsatisfactory and entirely without support in its professions of his care, prudence and good faith in the sale of the railroad company stock. He used a large part of the moneys belonging to the estate for his private purposes. His conduct has led to confusion and has thrown the estate into an expensive litigation.

Commissions are allowed as compensation for the faithful discharge of duty, and their rate, when they are allowed within fixed limits, is determined by reference to the actual pains, trouble and risk involved in the performance of that duty. Rev. p. 776 § 109.

In such a case as this the authorities are clearly against the allowance of any commissions. Frey v. Demarest, McKnight’s Exrs. v. Walsh and Hetfield v. Debaud, supra; Blauvelt v. Ackerman, 8 C. E. Gr. 495; affirmed on appeal, 10 C. E. Gr. 570; Dufford v. Smith, 1 Dick. Ch. Rep. 216.

The services of the administrator’s counsel at the accounting were made necessary by the same shortcomings and misconduct which deprive the administrator of commissions, and I do not think the estate should be mulcted to pay these counsel fees. The allowance of them should have been denied.

I do not perceive sufficient reason for interfering with the allowance to counsel of the exceptant, Nora Closterhouse. It is insisted that her exceptions were filed in interest of the accountant, but I do not find that this insistment is sustained by the proofs.

The decree will be reversed and the record will be remitted to the orphans court, in order that additional proofs may be taken and a new decree may be made, in harmony with the views I have expressed.


author: Beasley, C. J.

text:
    The Pennsylvania Railroad Company, appellant, v. The National Docks and New Jersey Junction Connecting Railway Company, respondent.
    1. The effect of filing an appeal to this court is to prevent the decree in the court of chancery from destroying or impairing the subject of the appeal, or being in any degree used for that purpose.
    2. The right of appeal in this state is the creature of the statute, confirmed by the constitution; and as the creation of the right is given in general terms, such right is not to be restricted by the practice of the English courts,
    3. The decree, whether interlocutory or final in the court below, will be construed and controlled so as to preserve the appellate cognizance of this court over the entire subject-matter, and for tbis purpose an injunction will be deemed to be continued or suspended, or a dissolved injunction revived.

      On appeal from an order of the chancellor, whose opinion is reported in National Docks &a. Railroad Co. v. Pennsylvania Railroad Co., 9 Dick. Gh. Rep. 167.

    The respondent, by condemnation, acquired the right to cross the car yard of the appellant, by means of a subterranean passageway.
    The respondent contended that, in the proper construction of the passageway in question, it was necessary that the surface of the car yard should be raised, and that in making said subterranean roadway the tracks of the appellant, crossing such proposed excavation, would have to be cut and kept open during the progress of the work.
    The execution of this project being resisted by the appellant, a bill was filed to quell such opposition, the result being a decree, which was thus expressed, viz.:
    “That the defendants be and they hereby are enjoined and restrained from obstructing the complainant in the construction of its railroad and arch upon the route of the complainant, according to the plan and in the manner set forth in the order of amendment ef the Hudson circuit court, dated September 30th, 1893, and in the statement filed July 11th, 1895, in the office of the clerk of said court &c , and from placing or maintaining any cars within the route of complainant upon defendants’ yard tracks one, two and three, being the most southerly of the yard tracks in the care of defendants covered by complainant’s route, until the complainant shall have completed its arch across said tracks” &c.
    From this decree the appellant duly appealed within ten days from its date.
    In this situation the respondent endeavored to proceed with its work, but such attempt was actively repulsed by the appellant, and which, in despite of the decree, maintained in its yard passenger cars on its tracks “ two ” and “ three ” at the place of respondent’s crossing. As this conduct was in plain violation of the decree appealed from, on motion the appellant was adjudged to be in contempt, and it is this latter decree that was brought before this court by this appeal.

      Messrs. Vredenburgh & Garretson and Mr. Diehard V. Linda-bury, for the appellant.

      Messrs, Dickinson, Thompson & MeMaster and Mr. Charles L. Corbin, for the respondent.
   The opinion of the court was delivered by

Beasley, C. J.

From the statement preceding this opinion, it appears that the appellant was enjoined from opposing the making a certain subterranean causeway through its car yard by the respondent, and that notwithstanding such inhibition the prohibited resistance was made. For that disobedience the appellant has been adjudged to be in contempt, and from this latter judgment the present appeal has been taken.

The appellant does not deny that it disobeyed the decree in question, both with respect to its mandatory and its prohibitive command, for it is admitted that it did not remove its trains as directed, and that it did obstruct the respondent in the construction of the archway in the manner that had been approved of by the chancellor. In this respect its contention was and is that, by its appeal, these mandates of the inferior court had been absolutely suspended, and that- the appellant had the right to wholly disregard them.

It will be observed, therefore, that the single injury on this occasion is with respect to the effect of an appeal to this court from a decree rendered in the court of chancery. The chancellor adopted the theory insisted on by the respondent, that an appeal .has no suspensive effect on the operative force of a decision in his court, and in this respect he has the support of sundry dicta in our own state and elsewhere. But such expressions of opinion were not called for in any of the cases cited, and must be regarded, consequently, as entirely obiter, while, at the same time, it must be conceded that a notion has long prevailed in the court of chancery that, to a large extent, it is one of its prerogatives to establish for this court the boundaries of its jurisdiction. And this assumption has, exhibited itself not only in the dicta referred to, but also in the more imposing form of stated rules of court. When it is provided that an appeal shall not, peí' se, stay an interlocutory decree, and that when an appeal from a final decree has been put in within ten days after the filing of such final decree, the same shall be suspended, unless otherwise ordered, no room is left for doubt that the conviction exists ’.that it is a function of the inferior court to regulate and define the force of the appellate process of this tribunal. It is difficult to understand-how in right reason'such'a view should have obtained. The only reason that appears to have- been assigned is, that it is, and for a long time has been, the practice of the court. But when we ask where such a practice has prevailed, the reply must be that it has prevailed only in the court of chanc'ery, for it does not seem that it can be claimed that, in any respect, such a course of law has received the sanction of this court. It is not perceived that this court has ever permitted anything to be done in the lower court -that, in any degree, has restricted or curtailed the power of this court to control, preserve and to adjudicate the entire appellate controversy. All the cases referred to in the opinion of the learned chancellor are to-this effect, for every one of them exhibits a refusal of this court to give such an effect to an appeal as will have even a tendency to interfere with the exercise of its appellate faculty. It has at all times manifested in this matter a purpose to conserve its authority, its decisions in every instance tending in that direction.

An example in this line is afforded by the case of Doughty v. Somerville Railway Co., 3 Halst. Ch. 633, which is a leading authority relied upon in the court -below. There an injunction had been dissolved and a stay ordered by the chancellor until the sitting of this court, and the question was whether this court could extend such stay until the hearing of the appeal. The argument against such extension was that an order for the continuance of the stay was an injunction, which mode of proceeding could ;be taken only by a tribunal exercising original judicature, and not by force merely of appellate authority. -But this contention was overruled on the significant ground that the disputed power belonged to this court as. a necessity, the chief-justice thus stating the ratio decidendi. Referring to this tribunal, he says: “ It may not exercise original power in acquiring jurisdiction over the cause. But that jurisdiction once .regularly obtained, this court may exercise original jurisdiction over the parties, especially when the proceeding is in rem and the object of the order to maintain unchanged, as far as practicable, the status or condition of the subject-matter of the controversy during the pendency of the suit. It is on the same principle upon which a court of common law, in an action of ejectment or dower, will make an order upon the party in possession restraining the commission of waste. And a court of equity, prior to the hearing or argument, will, upon the same principle, grant a temporary injunction until the case can be heard. It is an inherent power in all superior tribunals essential to the attainment of the object of litigation and the ends of justice. I am of opinion, therefore, that this court must of necessity have the power to make the order applied for.” And in the same case, in a similar vein, Mr. Justice Randolph thus expresses his views, saying: “ The right to grant such an order must exist in the very nature of things. To deny it is to deny the right of appeal in the case, for if we have no power to protect the subject-matter of the appeal, then is the right nugatory.” Most assuredly this case goes far to show that this court is possessed of whatever power is necessary to the consummate exercise of its functions. The effect of the inherent force of the appeal itself over the decree was not considered.

With respect to the cases cited from the reports of the decisions in the courts of the United States, it is considered that such determinations are altogether inapplicable, as the form of such appeals is regulated by statute and by a rule established by the supreme court of the United States. And so the authorities referred to from New York, Indiana and the other states, are, in a large degree, subject to the same criticism. It is also proper here to remark that each of these adjudications referred to had the effect of preserving the subject of appeal, and yet they are invoked to show that after an appeal its subject may be destroyed. ■

It consequently follows that in deciding the present issue, we must take as guides our own laws and constitution.

The subject is not at all complicated. Originally, in 1705, Lord Cornbury, by virtue of his commission as governor, established a court of chancery, in which he and his council were to preside, and were

“to hear and determine all causes and suits in said court which, from tíme to time, shall come before them, in such manner, or as near as may be, according to the usage or custom of the high court of chancery, in the kingdom of England.”

This establishment continued in force until March 28th, 1770, when Governor Franklin, by virtue of his commission, in 1762, constituted himself chancellor and judge of the high court of chancery or equity of New Jersey. Governor Franklin continued in office until the constitution of New Jersey was formed —July 2d, 1776 — and a few months after that event, on the 7th of October, 1776, the legislature enacted that the several courts of law and equity of New Jersey shall be confirmed and established, and continue to be held with the like powers under the present government as they were held at and before the Declaration of Independence. Pat. L. p. 38.

During this formative period, and for a short time subsequent, the decrees of the court of chancery were not appealable, the power of this court then being applicable alone to actions in the courts of common law. It was not until the year 1799, when our laws were in the hands of Mr. Justice Paterson for revision, that cognizance was conferred upon this tribunal to revise the decrees of the chancellor. These are the terms of the act referred to:

“That after final sentence or decree hath been pronounced in any cause or suit in the court of chancery, any person who may think himself aggrieved by any interlocutory order, or by any final decree in any cause or suit in chancery, may appeal from the court of chancery, against such order or decree, to the court of errors and appeals ” &c. Pat. L. p. 434.

Afterwards, in the year 1820, a supplement to this act was passed extending this right of appeal to all orders or decrees not final, if made within thirty days after the order &c.

It thus appears that when, in the year 1844, the new constitution of this state was established, this court, by force of its original constitution and of the then existing statutes, had been clothed with an unlimited revisory power over all orders and decrees, whether final or not final, of the court of equity, and in this situation, by the sixth article of such new fundamental law, it was provided that “ the judicial power shall be vested in a court of errors and appeals in the last resort in all causes as heretofore.” This in effect was a declaration that the appellate power of this court should be and remain such as had been given to it by the two acts of the legislature just cited.

The effect of those two acts is, in my opinion, as plain as anything can be. They give the right to any person aggrieved to appeal — that is, to call upon the superior court to decide whether his rights or property shall be affected by the decree in the court below, and if so, to what extent. The entire purpose and object of the appeal is to preserve such rights and property from the ill effects of the decision that is challenged. Unless it produces such a result, the procedure is a mere form, and, in many cases, absolutely a useless form. The suitor in carrying his case up asks for protection against an erroneous decree; such protection is obviously refused to him if the decree can be enforced before its legality has been tested by the superior court. In fine, the very essence of the remedy by appeal is to prevent, for the time being, the appellant from this execution of the existing decree; and this being so, it is indisputable that when the statute grants the right of appeal, it grants such protection. A decree cannot be used detrimentally to the appellant, pending the appeal, for the plain reason that such a use will, for every practical purpose, defeat the appellate procedure.

Deriving from our own statute the right of appeal with the inherent force just defined, it becomes unnecessary to examine the remedy as it exists in other jurisdictions. In England, at the time of our revolution, an appeal to chancery had the effect of wholly suspending all proceedings in that court on the decree appealed from • so that if we had obtained, by inheritance, the appellate jurisdiction of the house of lords, such would have been the force of this remedy with us at the present time, for the •change subsequently made, in this respect, in the English practice by a rule of the house of lords, could have had no effect' upon our procedure, inasmuch as such rule was ordained some time after our separation from the mother country. But the legislation referred to does not impart to this court an' appellate power similar to that possessed by the English court of last resort, or similar to that of any other court, but confers the prerogative unrestricted by reference to practice or model.

■ Touching the contention which occupies so much space in the briefs of counsel, that a power rests in the discretion of the chancellor to execute or to refrain from executing the decree in his court during the pendency of the appeal, the conclusive answer is that such a function would be wholly inconsistent with the paramount cognizance given to this court over the subject. Such a theory would have the effect of reducing the absolute right of appeal, so clearly created by the statute, to a merely conditional right, such condition' being the pleasure of the chancellor. If the inferior court can destroy the subject of the appeal, it necessarily follows that the remedy is not of right but of grace. By acceding to such a doctrine this court would abnegate the greater part of its authority in this domain vested in it by the legislalature and the constitution. That such would be the result the present case exhibits a conspicuous proof. The decree, as it stood when the appeal was filed, enjoined the appellant to refrain from opposing • the cutting of its tracks, and to facilitate such cutting by the removing out of the way certain of its trains. To prevent such cutting, which the appellant claimed would be an irreparable injury, this appeal was interposed, but the chancellor maintained that, unless he himself intervened, the decree was in full force and must be in all respects submitted to. In other words, the judicial doctrine was that, although the appellant had taken the proper steps to place before this court the question whether such cutting was justifiable, nevertheless the appellant must stand by and quietly submit to the destruction of the ground of its appeal, and must even actively assist in such destruction. ' •

. I think it clear that such an hypothesis as this is a manifest invasion of the rightful jurisdiction of this court, for it deprives it of the ability to render anything more than a merely nominal decree in the given case.

In the case before us, therefore, the opinion of this court i's that the decree in question lost for the time all its force, and that the appellant could not fall into contempt by resisting its execution.

It is likewise the opinion of this court that an appeal in all cases will have that effect given to it which shall be necessary to preserve the subject to which the appellate procedure relates, in such a condition as will enable this court to render an efficacious decree in the premises. That for this purpose an injunction decree will be suspended or continued, or a previous injunction revived, by the act of filing an appeal whenever such construction shall be necessary for the end just stated.

Let the decree before us be reversed.

For reversal — The Chief-Justice, Depue, Garrison, Gummerb, Lippincott, Mague, Yan S yokel, Bark alow, Bogert, Nixon — 10.

For affirmance — Ludlow—1.


text:
    Irene C. Tallman, appellant, v. Mary De Wees Wallack and Charles E. Wallack, respondents.
    1. Although a mortgage is absolute on its face, a court of equity will inquire into the real purpose for which it was given and will apply it to that purpose alone, and in cases like the present parol evidence is admitted not to contradict or vary the mortgage, but to identify the demand to which it refers.
    2. It is also the established rule that an assignee takes subject to the mortgagor’s equities, whether they are open or secret.
    3. No positive relief is ever granted a defendant except on cross-bill.

      On appeal from, a decree advised by Advisory Master Isaac S. Taylor.

      Mr. John T. Rosell and Mr. Frank P. McDermott, for the appellant.

      Mr. Frederick Parker, for the respondents.
   The opinion of the court was delivered by

Beasley, C. J.

The bill in this case was exhibited by an assignee of a mortgage, and it was dismissed in the court of chancery on the ground that the complainant had no title to the instrument.

My examination of the testimony has inclined me to think that this mortgage, in equity, should be held to belong to the defendant 'Wallack, as the sum secured by it was, in all probability, deducted from the purchase-money when the mortgaged premises were sold. But, as a cross-bill has not been put in, this matter is not before us. .

It is enough to say that this court concurs in the conclusion of the chancellor that the complainant has no standing entitling him to call for a foreclosure in this case.

Let the decree be affirmed.

For affirmance — The ChiÉf-Justice, Depue, Gummere, Lippincott, Ludlow, Magie, Van Syckel, Bogert, Brown, Krueger, Sims, Talman — 12.

For reversal — None.


author: BeAsley, C. J.

text:
    William R. Jernee, appellant, v. Abbie N. Jernee, respondent.
    When a party is committed by an order in equity for the non-payment of alimony, or fine and costs, the amounts must be specified in the commitment.
    On appeal from an order advised by Vice-Chancellor Bird.

      Mr. Willard P. Voorhees, for the appellant.

      Mr. Amzi D. Taylor, for the respondent.
   The opinion of the court was delivered by

BeAsley, C. J.

This is an appeal in the course of a proceeding for divorce. The appellant, having been committed for contempt on account of his failure to pay alimony as directed, made a motion to be discharged from such imprisonment, and it is the refusal of such application that forms the subject for review by this court.

The warrant of commitment thus challenged was directed to the sheriff of the county of Middlesex, and after the usual recitals, contained the order following, viz.:

Therefore, we command you that you take the body of the said William E. Jernee, and him safely and closely keep in your custody in the common jail of the county of Middlesex until he shall have paid to the said complainant the alimony now due her, and the costs of such contempt to be taxed, and also a fine (§5) for the use of the state, together with the costs df this writ, or until our said court shall make order to the contrary &c.

On the hearing of the motion to discharge the defendant, as above mentioned, it was urged before his honor the vice-chancellor who sat on that occasion, that this commitment was fatally defective, inasmuch as neither it nor the order that authorized it, specified the amount of the alimony to be paid, nor the sum of the costs. The complaint was that the appellant was committed to jail until he should pay a sum of money that was not fixed.

In denying the motion the court expressed the view that it was the proper practice in such cases for the party to secure his discharge by an application to the court, upon satisfying the court that he had purged his contempt.

Ho precedent for such a course has been produced or found. Such a procedure would be dilatory, oppressive and absolutely without usefulness. The punishment for the contempt has already been determined and announced, and the method of purgation has also been made known. Why should the contemner be again set before the court ? The only result would be a reiteration of the existing mandate to pay the fine, the alimony and the costs, and then go free. Besides, this recurrence to the court is inconsistent with the command of the writ, which did not direct the bringing in the appellant for further judgment, but simply his imprisonment until he had paid certain moneys. There was no order that he should be confined' until he should be again placed before the chancellor, and his imprisonment for ¡such a purpose would, therefore, have been obviously illegal.

Hor is the practice that was adopted by the vice-chancellor in any respect in harmony with the nature of the writ of commitment as it existed in this case. That process was not in use to vindicate the power of the court or to punish a disrespect towards it when exercising its judicial functions. On the contrary, its sole purpose was to enforce the right that had been adjudged in favor of the respondent in this appeal, and such a writ is, in substance, not to be distinguished from a capias ad satisfaciendum founded on a judgment at law. There seems to be no good reason why the moneys to be levied by them respectively should not be definitely stated as well in the one case as in the other.

Our conclusion is that the appellant was entitled to a discharge from imprisonment upon the payment by him of the alimony, fine and costs, and that to effectuate that right it was necessary that the amounts so to be paid should have been specified in the warrant of commitment. There being a defect in this particular, the decree before us must be reversed.

For reversal — The Chief-Justice, Depue, Dixon, Gum-mere, Lippincott, Mague, Yan Syckel, Bark alow, Bogert, .Nixon — 10.

For affirmance — None.


author: Depite, J.

text:
    Alfred Mills, appellant, v. William Davison and the Rector, Wardens and Vestrymen of Grace Church, in Westfield, N. J., respondents.
    1. The rule against perpetuities does not apply to gifts to charitable uses. A gift to a charitable use, with a direction that no part thereof should at any time be alienated, does not create a perpetuity in the sense forbidden by law but only a perpetuity allowed by law and equity in cases of charitable trusts.
    2. A conveyance of a lot of land on which an Episcopal church had been erected by voluntary contributions, was made for a nominal consideration, and was, therefore, a gift by which the lot was conveyed to a religious society incorporated as a Protestant Episcopal church and to their successors, “but not to their assigns,” with an habendumin these words': “To-have and to hold unto the said party of the second part and their successors forever, with this express condition and limitation: that neither the said party of the second part nor their successors shall at any time sell, mortgage or in any way convey the said lands and premises or any part thereof, and that no building shall be kept, maintained or erected thereon, except for the purpose of public worship and teaching in accordance with the usages, rites ánd ceremonies of the Protestant Episcopal Church in the United States of America, and also except the proper outbuildings appurtenant thereto.” — PTeM,.’that the grant was of the entire estate to hold to the use exclusively for public worship and teaching in conformity with the usages, rites and ceremonies of the Protestant Episcopal Church. .
    3. A conveyance in the form above set out does not create a condition for the breach of which the grantor may enter as for a forfeiture of the estate, but creates a trust which the grantee taking the legal estate is bound to perform ; to be enforced not by a forfeiture of the title, but by those methods by which a court of equity compels the performance of such trusts.
    4. The grant being to a religious society incorporated as a Protestant Episcopal church, the object for which the donee was incorporated is an important element in the construction of the instrument by which a charity is created.
    5. The deed of conveyance contained a consent by the grantors that the grantee might, by a mortgage on the property, raise a certain sum of money for the purpose of completing the church edifice. — Held, that such consent did not destroy the entire trust, but had the effect only to validate the mortgage, and that upon a sale in foreclosure proceedings, the surplus money which remained after payment of the mortgage debt, interest and costs, belonged to the grantee to be held upon the original trust.
    6. The donor, as the founder of a charity, has a standing in court to restrain the diversion of the property donated from the charitable uses for which it was given.
    Oil appeal from an order of the chancellor striking out the cross-bill of the defendant, Alfred Mills. Opinion reported in Mutual Benefit Life Insurance Co. v. Grace Church, 8 Dick. Ch. Rep. J/L8.

      Mr. Alfred Mills, pro se.

      Mr. Craig A. Marsh, for the respondents.
   The opinion of the court was delivered by

Depite, J.

The rector, wardens and vestrymen of Grace Church, in Westfield, were incorporated as a religious society by a certificate filed November 20th, 1862, pursuant to the act to incorporate religious societies. Rev. p. 962 § 27. During the years 1874 and 1875, the corporation erected a church building on a lot of land in Westfield, owned by Alfred Mills and Catherine, his wife. The building was erected and used for the purpose of public worship and teaching, in accordance with the usages, rites and ceremonies of the Protestant Episcopal Church in the United States of America.- The cost of erecting and furnishing the building was about $6,500. Of this sum, Mr. Mills and his wife gave $2,900. To raise' the money necessary to complete the building, after other voluntary contributions were applied, the sum of $2,000 was borrowed of the Mutual Benefit Life Insurance Company. To enable the society to raise this' money on mortgage, Mr. and Mrs. Mills made conveyance to the society by a deed made and executed on. the 14th of June, 1875. On the same day, the society, in its corporate name, mad* and executed a mortgage on the lot so conveyed to it to the insurance company for the said sum of $2,000. The mortgage is now being foreclosed. On the 30th of April, 1894, William Davison recovered a judgment against the society, in its corporate name, for the sum of $1,554.07. This debt was not in any way connected with the building of the church edifice. Mrs. Mills died before the filing of the bill in this case, and her title to the premises, whatever it is, became vested in her husband, Alfred Mills, and her son, Edward, who were made parties to the foreclosure suit. Davison, as a judgment creditor, was made a party by his petition.

This controversy is over the surplus money that may remain after paying the mortgage debt. Davison, .by his answer, claims that such surplus should be applied to the payment of his judgment. Alfred Mills has answered, and in his answer denies that the Davison judgment is a lien on the mortgaged premises, and, by way of a cross-bill, claims that the surplus of the proceeds of the sale of the mortgaged premises should be paid to him and his son. The church society has also answered, consenting to a sale of the mortgaged premises, and submitting to the determination of the court the question of the application of the surplus of the money realized from the sale after payment of the mortgage debt, interest and costs.

On the motion of Davison, the chancellor made an order that the answer of Mills, by way of a cross-bill, be struck out and the cross-bill be dismissed. From this order Mills appealed.

The question that lies at the foundation of this 'Controversy is whether the deed of conveyance made by Mr. and Mrs. Mills to the church society was a conveyance to a charitable use. The situation before the deed was made — the object for which the society was incorporated, the erection of a church edifice for religious purposes by voluntary contributions on a lot constituting a suitable curtilage for a building devoted to such uses, and the need of the money borrowed on the mortgage to complete and furnish the buildings — has already been mentioned.

The deed is to the religious society and to their successors, with the words “but not to their assigns” added. It was made for a nominal consideration', and was, therefore, a deed of gift. The word “successors,” in the granting part, created a fee, and the words added excluding assigns from the succession are unimportant, except when taken in connection with the habendum, as indicating the intent of the grantors. The habendum is in these words.:-

“To have and to hold unto the said party of the second part and their successors forever,'with this express condition and limitation: that neither the said party of the second part nor their successors shall at any time sell, mortgage or in any way convey the said land and premises or any part thereof, and that no building shall be kept, maintained or erected thereon, except for the purpose of public worship and teaching in accordance with the usages, rites and ceremonies of the Protestant Episcopal Church in the United States of America, and also except the proper outbuildings appurtenant thereto.”

The rule against perpetuities, as applied to private trusts, does not apply to gifts to charitable uses. Grey Perpet. § 590; 1 Lew. Trusts [¶] 11; Perry Trusts § 384; Perin v. Carey, 24 How. 465, 185, 507; Jones v. Habersham, 107 U. S. 174, 184, 185. In Perin v. Carey, Mr. Justice Wayne, delivering the opinion of the court, said: “ Such gifts, from the purposes to which they were to be applied and the ownership to which they are subjected, have had the protection of courts of equity to prevent any alienation of them on the part of the person or body entrusted with the offices of giving them effect; and in all such cases land has been decreed by courts of equity to be practically inalienable,' or that a perpetuity of them exists in corporations when they are charitable gifts.” And in that case it was held that a devise of real estate to a charitable use, with a direction that no part thereof should at any- time be alienated, did not create a perpetuity in the sense forbidden by law, but only a perpetuity allowed by law and equity in the cases of charitable trusts. In Jones v. Habersham, a devise of land to a society for the relief of distressed widows and the schooling and maintaining of poor children, “ but on the express condition that said society shall not sell or alienate said lot, but shall use and appropriate the rents and profits of the same for the support of the school and charities of said institution, without said lot being at any time liable for the debts'or contracts of said society,” was held to be a good charitable devise. The distinction is between the purchase of lands by a corporation created for charitable purposes and a donation or gift of lands to such a corporation for uses that are charitáble. In Magie v. German Evangelical Church, 2 Beds. 77, an incorporated religious society purchased lands for a consideration and procured from the vendor a deed of conveyance in fee, with an habendum to hold for the specific uses for which the society was incorporated, with a restriction against alienation or encumbering. Chancellor Green applied to this conveyance the rule of the common law, that alienation is an inseparable incident of an estate in fee-simple and could not be restrained by any provision or condition whatever, and that, therefore, a mortgage by the society was valid. But this decision was expressly placed upon the ground that the trust was not created by devise or gift; that the land was purchased for a valuable consideration, and a church was erected thereon by the funds of a corporation, and the trust was inserted in the deed by thé society at its instance and for its benefit and protection, and thát a trust so created will not protect the property against the payment of debts. But he adds: “ Where property is given to a corporation in trust for a charitable use, the trust is the creature of the donor. He may impose upon it such character, condition and qualifications as he may see fit. The property being a gift, no wrong is thereby done to the creditors of the corporation, and a court of equity may well protect and enforce all the conditions of the gift.” This case was affirmed in this court without an opinion, adopting, presumably, the opinion of the chancellor in the court of chancery. 3 McCart. 500.

When the charitable use is created by gift, the donor may impose conditions and limitations which shall prevent the diversion of the trust estate from the uses upon which the estate was granted either by the voluntary or involuntary act of the donee. Indeed, the inalienability of the trust estate to other purposes than the uses for which it was donated results from the fact that the trust is created. The question is wholly one of construction. The dominating rule in the construction of deeds and other written instruments is to so construe them as to give effect to the intention of the parties as far as is permitted by the rules of law. The prefatory words in the habendum, in the deed in question are “ upon this express condition and limitation.” In the court of chancery the word “ condition ” in this sentence was construed as a condition designed for the benefit of the grantors to defeat the estate granted. Such a construction, it seems to me, is contrary to the intent of the grantors in making the gift. A church edifice, designed for religious worship in accordance with the usages of the Protestant Episcopal Church, had been erected upon the lot conveyed;. the grantors had contributed liberally toward the erection of the building, and, as will be seen presently, consented to a mortgage to raise money to complete it. I think it is obvious that the conditions and limitations inserted in the deed were designed and intended to secure and maintain the property donated for the benefit of the religious society, and not for the advantage of the grantors personally. The word condition ” is a term of flexible meaning. In leases it is often construed as a covenant. “Express words of condition shall be taken for a limitation if the nature of the case requires it.” 2 Com. Dig. 360, tit. “ Condition T; 1 Abr. Cas. Eq. 105 note a. Words of express condition are not inapt as introductory to a declaration of trust. Every conveyance to a charitable use is a conveyance to hold upon the trust declared, and the execution of the trust is the condition upon which the estate is taken and held, to be given effect to not by the forfeiture of the title, but by those methods by means of which a court of equity compels

the performance of such trusts: In Jones v. Habersham, above cited, the charitable uses were declared in the form and under the introductory words of an “ express condition.” In a devise of lands to W., “ upon this express condition ” that he pay certain legacies, it was held by the queen’s bench and exchequer chamber that the words “upon this express condition” did not create a condition for breach of which the heir might enter-, but created a trust which the devisee taking the legal estate would in equity be bound to perform. Wright v. Wilkin, 2 Best & S. 232. Other precedents for the use of words of condition as a declaration of trust and not as a condition on the non-performance of

which a forfeiture will result, will be found in the following citations: Attorney-General v. Wax Chandlers’ Co., L. R. 6 Eng. & Ir. App. 1; Merchant Tailors' Co. v. Attorney-General, L. R. 6 Ch. App. 512; Goodman v. Mayor of Saltash, 7 App. Cas. 633, 640, 642; Richardson, in re Royal Life Boat Co., 56 L. J. Ch. 784; In re Conningston’s Will, 2 L. T. N. S. 535; 1 Lew. Trusts 140. In the Wax Chandlers’ Case, Lord Gairnes said: “ If I give an estate to A. upon condition that he shall apply the rents for the benefit of R, that is a gift in trust to all intents and purposes.” In Goodman v. Mayor of Saltash, supra, Lord Selborne, speaking of a grant from the crown, said: “ If an actual grant so qualified were produced, it would be immaterial whether the word used in it were ‘ trust,’ ‘intent,’ ‘purpose,’ ‘proviso’or‘condition,’ or whether the trust or duty imposed were cognizable in equity or also at law. In such a grant there would be all the elements necessary to constitute what in modern jurisprudence is called a charitable trust.” “A trust may be raised by a gift upon condition of doing a certain thing, even when followed by a gift over if the condition be broken. * * * The tendency in early times was to treat such a limitation as a conditional gift, and the tendency in modern times is to treat it as a trust.” Tyssen Char. Bequests 508. “ It is sufficient if it appears from the construction of the instruments that the property was intended to be held subject only to the execution of certain charitable trusts or the performance of certain conditions in favor of charity.” Tud. Char. Trusts [3d ed.) 50. The other word,- “ limitation,” in its most technical sense, when used in the habendum, is an appropriate term under which to declare the nature and extent of the estate granted' and the uses for which the grant is máde. •

In the deed now in hand the grant is to a feligious society incorporated ais a Protestant Episcopal church, and the habendum is to the gr'antees and their successors' forever, with a limitation that no building shall be kept, maintained or erected on the premises except for the purpose of public worship and teaching in. accordance with the usages, - rites and ceremonies of the Protestant Episcopal Church, and the proper outbuildings appurtenant thereto, with an express interdict that neither the grantee nor its successors shall at any time sell, mortgage or in any way. convey the said land and premises or any part thereof; thus excluding all beneficial ownership or use of the property otherwise than for public worship and teaching in accordance with the rites and ceremonies of the Protestant Episcopal Church. The object for which the donee of a charity was incorporated is always an important-element in the construction of the instrument by which a charity is created. Tud. Char. 52; Attorney-General v. Dean &c. of Windsor, 8 H. L. Cas. 369, 405, 406; Miller v. Gable, 2 Den. 492; People v. Steele, 2 Barb. 398, 405. The grant is of the entire estate in fee, to hold to the religious society and their successors forever; excluding, nevertheless, all beneficial ownership or use of the property, except- for the religious purposes for which the grantee was incorporated. The language of the habendum plainly indicates a conveyance for use exclusively for public worship and teaching in conformity with the rites and ceremonies of the Protestant Episcopal Church.

. Annexed to the habendum is a consent by the grantors to" the mortgage by the grantees to raise the money which was required to complete the church edifice. This is the mortgage now under foreclosure. The consent is set out at large in the chancellor’s opinion. The mortgage debt is much less than the value of the property,

Power to mortgage is frequently inserted'in deeds, of trust. Such a power,-if executed, does not destroy the entire trust. The trust remains encumbered only by the mortgage. The consent in this case will have the effect to validate the mortgage as a lien upon the premises conveyed. The purchaser at a foreclosure sale will take the premises by a title free from the trust; but the surplus money arising from such sale will belong'to the'society, to be held upon the original trust.

The defendant Mills, as the founder of the charity, has a standing to appear in court to restrain the diversion of the property donated from the charitable uses for which it was given. The specific prayer of the cross-bill is that the surplus money arising from the sale in the foreclosure proceedings, after paying the mortgage debt, interest and costs, may be paid to him. This relief cannot be granted. The deed of the grantors having conveyed away the-entire estate in the premises, a resulting trust will not arise in favor of the grantors by reason of an abuse of the trust. Sanderson v. White, 18 Pick. 328; 2 Perry Trusts § 744. But the facts stated in this opinion are all set out in the cross-bill, exhibiting the purposes for which the deed was made; and there is also a prayer for other or further relief. The bill, as framed, is sufficient to bring within the cognizance of a court of equity the construction of the deed aud relief by way of preventing a diversion of the property conveyed to purposes at variance with the charitable uses to which it was devoted.

The order striking out the cross-bill should be reversed and the record be remitted &o.

For reversed — The Chief-Justice, Depue, Gummere, Lippincott, Ludlow, Yah S yokel, Bark alow, Bog-ert — 8.

For affirmance — Dixon, Garrison, Magie, Hendrickson, Nixon — 5.


author: Garrison, J.

text:
    The Rural Homestead Company et al., appellants, v. Frank W. Wildes et al., respondents.
    Where the stock of a cemetery company is almost without any market value, its exchange'for an interest in land that may prevent disastrous competition, is not so improvident as to shock the conscience and lead, in equity, to an invalidation of the' sale.
    On appeal from a decree of the chancellor, whose opinion is reported in Wildes v. Rural Homestead Go., 8 Rick. Gh. Rep. 425.

      Mr. William H. Speer, for the appellants.

      Mr. J. Flavel McGee, for the respondents.
   The opinion of the court was delivered by

Garrison, J.

The bill exhibited in this cause by certain stockholders of the Rural Homestead Company sought the vacation of a sale made to said company by one Samuel W. Bowers, of his title to and interest in a certain tract of land in consideration of two hundred and thirty shares of the stock of said company.

The substantive charge of the bill was that the directors in office effectuated this sale to secure a continuance of their official positions.

The chancellor found this to be the scheme and decreed the vacation of the sale.

In reaching this result, one fundamental right is overlooked, viz., the right of Bowers, the purchaser of the stock. His claim to the status of a bona fide purchaser without notice was not successfully assailed. If, therefore, we agreed with the conclusions of the chancellor that the transaction was uneonscientious on the part of the directors, it would in no wise tend to affect the title of Bowers, to the stock. We do not, however, concur with the chancellor in his interpretation of the facts. The stock, at the time of the purchase in question, was so depressed that, with a par value of $50, its selling value was $5. The land in question for statutory causes was the only source from which the directors could fear competition to their cemetery. To exchange stock that was almost worthless to suppress competition that might be most disastrous, does not, in my opinion, disclose an improvidence that should shock the conscience; on the contrary, such a deal appears to me to be, so far as the case shows, beyond reasonable criticism.

Leaving, therefore, the rights of Bowers out of the question, I am of opinion that there is no ground for annulling this sale.

The decree must be reversed.

For reversal — The Chief-Justice, Depue, Dixon, Garrison, Gummere, Lippincott, Ludlow, Mache, Van Syckel, Barkalow, Bogert, Dayton, Hendrickson, Nixon — 14.

For affirmance — None.