text:
    Chelsea National Bank v. Robert S. Smith.
    [Submitted and decided March 6th, 1908.]
    1. Where complainant’s grantor, in contemplation of securing a certain hotel building, agreed to lease it to defendant upon certain terms, a formal lease to be executed by the parties in accordance with the agreement after the lessor had acquired title, and, in executing the formal lease thereafter, the annual rental was, through a clerical error, stated to be less than that agreed upon, the agreement cannot be treated as a present ^demise, so as to afford complainant a legal remedy thereunder.
    2. The general rule of equity is that, to warrant the reformation of a contract for mistake, the mistake must be mutual, while in the case of a unilateral mistake the remedy is rescission; but equity will reform a contract in the case of a mistake of one party accompanied by fraud or other inequitable conduct by the other party.
    3. Complainant’s grantor agreed to lease certain property to defendant for four years after he had acquired it, the ^contract stating the annual rental to be paid, and the time of payment, &c., the parties to execute a formal lease pursuant thereto after the lessor had acquired the property, and, the latter having thereafter acquired it, a lease was prepared and signed by the parties, but through a clerical error the annual rental stipulated was less than that stated in the contract, the total rentals for the four years being the same. The lessor signed the lease, believing its terms to be the same as the contract, but defendant testified that he noticed the annual rental was less, but did not mention it, as it was his intention to refuse to sign the lease until he discovered the change in the rental stipulated. — Held, that defendant, by his silence, having led the lessor to believe that he was signing the lease called for by the contract, equity will reform the lease to conform to their agreement.
    On bill for reformation of lease. Heard on bill, answer, replication and proofs.
    May 14th, 1904, one Jere H. Nixon and defendant executed a written agreement wherein? after a recitation that Nixon was about to acquire title to a property known as the Hotel Elwood at Atlantic City, it was agreed that upon receiving title Nixon was to execute a lease for the property to defendant dated March 1st, 1904, for the term of four years at the annual rent of $4,700. Then followed an enumeration of the times when the rent should be paid. The rent for the first year was divided into six payments to be made on dates specified, aggregating $4,700. The rent for each of the three succeeding years was divided into eight payments to be made on dates specified, also aggregating $4,700 annually. Other terms of the proposed lease, which are here immaterial, were also specified. Title to the premises was conveyed to Nixon, as anticipated, and he handed the agreement to his attorney to have a lease typewritten pursuant to the agreement, and notified defendant that the lease would be ready for execution at the attorney’s office at a time named. On the da}*- named the parties met at the attorney’s office and executed the lease. The evidence discloses that the typewriter who prepared the lease made a clerical error by omitting from the lease one of the eight enumerated annual rent payments specified in the agreement for the years succeeding the first j^ear. This made the lease read for a term of four years at the rental of $18,800, as provided in the agreement; but the specific payments enumerated in the lease for the years succeeding the first year were but $4,000 annually, instead of $4,700, annually as provided in the agreement; the omitted payment being that of August 8th, for $700 each year. The lease so drawn was handed to the parties by the attorney and was then and there executed by them without discussion or comment touching the variance between the agreement and the lease. Nixon signed the lease without observing the error, and believing that the rent installments had been accurately copied from the agreement into the lease. Defendant testifies that he observed that the payments enumerated in the lease for the years succeeding the first year were $700 less annually than the agreement called for; but states that he made no comment touching the fact. The reason given by him for his conduct is that he had, after signing the agreement, determined to violate it and to refuse to sign a lease because of facts which he had ascertained touching'' repairs to the property; but that when he observed the lesser rent payment enumerated in the lease for the second, third and fourth years of the term, he changed his mind and accordingly signed the lease. Nixon, in fact, held title to the property in trust for complainant and was acting for complainant throughout, and after the lease was signed, he conveyed the legal title of the property to complainant. Rent was paid to complainant pursuant to the terms of the lease for the first year and up to the date of the omitted installment in the second year. It was then that complainant first learned of the error of the typewriter, and filed the present bill to reform the lease so that it may be made to conform to the terms of the written agreement.

      Mr. Clarence L. Goldenberg, for the complainant.

      Mr. John J. Crandall, for the defendant.
   Leaming, V. C.

The agreement cannot be treated as a present demise so as to afford complainant a legal remedy under it; for the agreement contemplates the execution of a formal lease, and by its terms title was to be acquired by the lessor before a demise could be made. Wood L. & T. § 183. It may be that a bill for the specific performance of the agreement would have been an appropriate remedy for complainant, as is forcefully urged by defendant; but I am entirely satisfied that the remedy by reformation of the lease, as here sought, can be appropriately awarded. The general rule of equity is that to warrant the reformation of a contract for mistake, the mistake must be mutual; whereas in the case of an unilateral mistake the remedy is rescission. But a court of equity will reform a contract in the ease of a mistake of one party accompanied by fraud or other inequitable conduct of the other party. 4 Pom. Eq. Jur. (3d ad.) § 1376. The present case is well within that rule. The lessor believed that the lease was drawn to conform to the written agreement. Defendant observed that it was not so drawn. No negotiation or discussion had been had touching any reduction of rent, and defendant must have known that the variance between the agreement and the lease was a clerical error. The single fact that the amount named in the lease as the total rent for the four years was the same as provided in the agreement, and that the installment payments aggregated a lesser amount, disclosed the existence of a clerical mistake. I cannot entertain the slightest doubt that defendant well knew that the lessor was signing the lease under the belief that it conformed to the agreement, and also that he well knew that his silence would operate to enable him to procure the terms not agreed upon, and that he also intended that his silent concealment should so operate. To adopt the language of Cubberly v. Cubberly, 39 N. J. Eq. (12 Stew.) 514, the rent payment now in question was kept out of the lease by the covinous contrivance of defendant. Under these circumstances, defendant, by his conduct in effect, asserted to his lessor that he was executing the lease called for by the prior agreement. Under the lease so procured he has occupied the demised premises until this time, and now seeks to avoid the rent payment which his wrongful conduct induced his lessor to believe he had stipulated to pay. Under these conditions there can be no doubt of the power and duty of a court of equity to reform the lease so that it may read as the agreement of the parties provided it should read. I will advise a decree to that effect.


source: Caselaw Access Project

author: Leaming, V. C.

license: Public Domain

text:
    Thaddeus W. Markley v. Camden Safe Deposit and Trust Company, trustee, et al.
    [Decided April 6th, 1908.]
    1. On the death of complainant’s father intestate, leaving a widow and six children, all but one of whom were minors, his estate was partitioned in proceedings practically under the management and control of the widow, who was appointed general guardian of the minors, and the elder brother, the clerk of the court being made guardian ad litem for the minor heirs, and on the partition real property worth $25,000 was sold to the widow for $3,000, there being testimony that she purchased the property for the benefit of the children. Complainant at the time of the sale was only sixteen years old, and it appeared did not fully understand the nature of the transaction. — Held, that the sale to the widow was a constructive fraud upon the minor children; and she took title to the property and the proceeds thereof upon its subsequent sale for their benefit.
    2. The statute of limitations«runs against the right to assert a constructive trust.
    3. Where complainant’s mother, upon the death of his father intestate, purchased the homestead at a partition sale at a grossly inadequate price, she having entire control of the partition proceedings, so that her purchase of the property under the circumstances amounted to a constructive fraud, and complainant was at the time sixteen years old, and had no intelligent understanding of the transaction, and after he reached his majority acquiesced in the transaction under the understanding that the property was to go to the heirs on the mother’s death, the statute of limitations did not run against his right to have the partition sale set aside so as to secure his interest in the property.
    4. The release of a guardian can only operate to discharge claims to funds received by her as guardian.
    5. Where complainant’s mother purchased the homestead at a partition sale upon her husband’s death for a grossly inadequate price, complainant being a minor at the time and not understanding the transaction, so that she took the property under a constructive trust for the minor heirs, the burden is on her to show that, by her release as general guardian for the minor heirs, she was thereby discharged to account for the proceeds of the property purchased at the partition sale.
    6. Complainant’s father left real estate which was subsequently partitioned between the surviving widow and children at the instance of the widow, and the homestead was sold in the partition proceedings and purchased by her at a grossly inadequate price, so as to entitle the children to have the sale set aside as a fraud upon them. Thereafter she conveyed the proceeds of said property in trust to defendant, to pay the income to herself for life, and, after her death, the income of complainant’s share to be paid to him, and at his death his share to go to his children. After his mother’s death, complainant accepted payments of income under the trust deed, and rented a part of the trust property from defendant, he then being ignorant of his right to have the sale to his mother on partition set aside and of the facts giving him such right.— Held, that complainant’s apparent acquiescence in the disposal of the proceeds of the property unlawfully sold being due to his ignorance, he was entitled to have the terms of the trust deed so modified as to give him the immediate enjoyment of his share.
    On final hearing on bill, answer, replication and proofs.

      Messrs. Gaskill & Gaskill, for the complainant.

      Mr. George J. Bergen and Mr. Herbert A. Drake, for the defendants.
   Leaming, V. C.

Complainant seeks relief against a certain trust deed made by his mother, Mary Josephine Markley, in her lifetime, to defendant trust company. The ground asserted for relief is that the property which was conveyed by Mrs. Markley to the trust company by the trust deed in question was not the absolute property of Mrs. Markley, but that her rights in the property were, in equity, limited to its enjoyment during her lifetime, and that at her death her issue (except Hamilton Markley, who is conceded to have released for the benefit of the other heirs any claim he may have had) became entitled to the property in equal shares of one-fifth each. The property in question represents the proceeds of sale of the real estate of which Albert W. Markley (husband of Mary Josephine Markley and father of complainant) died seized. The constructive trust which complainant now asserts is claimed to have arisen by reason of the manner in which Mrs. Markley acquired title to the property. Her husband died 'intestate in September, 1875, owning a large amount of personal property and seized of two tracts of real estate, one known as the mansion-house or 420 Cooper street, Camden, where he resided, and the other as the Shamong tract, in Burlington county, and leaving him surviving his widow, Mary Josephine Markley, and six children, one of them complainant, as his heirs-at-law. At the time of the father’s death all of the children were minors except Hamilton, and after the father’s death all continued to reside with their mother in the mansion-house referred to. In the following December Hamilton filed a bill for partition of the real estate, and pursuant to decree of court, sale was made by a special master in June, 1876. At the partition sale the mansion-house property was sold by the master to Mrs. Markley for $3,000. It is admitted that the property was then worth $25,000. The Shamong property was sold to a disinterested purchaser for $700, its full value. In the partition proceedings the clerk of the court was made guardian ad litem for the several minor heirs, and after confirmation of the sales Mrs. Markley was appointed by the orphans court as guardian of the minors and as such was authorized to receipt for the proceeds of the sales, she having, prior thereto, released her dower rights in the real estate.

I am entirely satisfied from the evidence disclosing the circumstances surrounding the transaction that this purchase of the mansion-house property by Mrs. Markley was not such a purchase as can be said to have divested the equitable estate of the minor children. Complainant was then sixteen years of age. He and the other minor children were under their mother’s care and protection. Her will was their will at that time. While in the partition proceedings the clerk of the court had been duly appointed guardian at litem of the minors, there can be little doubt that the entire proceedings taken were essentially under the management and control of Mrs. Markley and her son Hamilton. No court could have confirmed that sale of the homestead property with the knowledge of its real value. Mrs. Markley, while acting or while about to act as general guardian of the minors, became the recipient of the title theretofore vested in the minors and at a valuation unconscionably inadequate. As general guardian of the minors she was able to receipt for the amount of her bid. It does not appear that the amount of her bid ever found its way into her accounts as guardian or that the amount for which the Sha^ mong property was sold ever became a part of her guardianship accounts. Mrs. Markley’s purpose at the time may have been and probably was that the transaction should eventually result in benefit to the children. Statements made by her were, to the effect that she took title to the homestead for the benefit of the children, but such a purpose will not destroy the constructive fraud which the policy of the law requires a court to assume to be present in such a transaction. I am convinced that it is the clear duty of a court of equity to declare a constructive trust in favor of the minors in the transaction referred to> and to treat Mrs. Markley as a trustee holding the title to the homestead property for the benefit of her children and holding the proceeds of sale of the Shamong tract for their benefit, unless it satisfactorily appear that as guardian or otherwise she subsequently accounted to them for the full value of the homestead property and for the proceeds of sale of the Shamong tract or that they have since in some other manner lost their right to assert their claim.

Complainant 'reached Iris majority in the year 1881, and as the statute of limitations runs against the right to assert a constructive trust, complainant’s remedy is now lost unless his delay is sufficiently excused. The reason assigned for the long delay on the part of the complainant in asserting his rights is that a family arrangement existed whereby it was understood that the real estate and its proceeds should be enjoyed by Mrs. Markley as long as she lives and that the corpus would not be diverted by her from the course of legal descent. If the failure of defendant to earlier assert his rights has been by reason of a family arrangement of the nature referred to, reasonably attributable to Mrs. Markley, it is clear that he should not be barred, for such an arrangement contemplates the postponement of the enjoyment of the rights of the heirs for the benefit of their mother until her death. I find it somewhat difficult to determine with certainty to what extent complainant may have deferred the assertion of his rights through any such understanding, reasonably attributable to his mother. That a family arrangement existed touching the real estate is entirely certain. In the deed of trust against which, complainant now seeks relief Mrs. Markley, by way of recitation, oyer her own signature, asserts that the partition proceedings “were inaugurated and completed in conformity to and in compliance with a family arrangement for that purpose.” Complainant testifies to conversations with his mother in which she stated to him that at her death the real estate was to go to the children equally. Mrs. Schellenger’s testimony, though somewhat vague, is to the same general effect. It may be that the evidence justifies the conclusion that complainant’s failure to earlier assert his rights arose from his mother’s assurances that at her death the real estate, or its proceeds, would be restored to the heirs, but I incline to the view that the real cause of complainant’s inaction was his ignorance of the facts. Complainant undoubtedly had an abiding confidence in his mother, and her statements to him touching the real estate were necessarily not without influence, but his testimony leads me to believe that he has never fully understood the facts as they were, and I somewhat doubt whether the well-known intelligence of his counsel has been sufficient to impart to complainant a full appreciation of the real situation, even at this time. The constructive trust in fa^or of complainant arises from the fact that Mrs. Markley acquired complainant’s real estate in an unlawful manner. My judgment is that complainant remained in ignorance of that essential fact during the entire lifetime of his mother and I doubt whether he yet fully understands it. Under, these conditions the statute will not run against him. Mrs. Markley, as above quoted, refers to the partition transaction as a family arrangement. It is clear that complainant had no intelligent part in any family arrangement at that time. After he attained his majority, he understood from his mother that the real estate was to go to the heirs at her death, and that, I am convinced, was the full extent of his information.

It is urged in behalf of the defence that certain releases and a warrant executed by complainant operate to bar his present suit. These instruments are clearly not intended to release any right of complainant in the real estate or its proceeds. The release of Mrs. Markley as guardian can only be operative to discharge any claim of complainant to funds received by her as guardian. In view of the circumstances under which the partition sale was made the burden is clearly upon Mrs. Markley and those now claiming- under her trust deed to- show that the accounts on which the guardianship settlement was based embodied the real estate proceeds or values. This might be doubted as to the $700 received by her as the proceeds of sale of the Shamong tract, if it were not for the fact that she has, in her trust deed, explicitly characterized this $700 as “converted real estate.”

The trust deed against which complainant now seeks relief was executed by Mrs. Markley in 1903. At that time the several heirs made demand upon her to put all of her property in trust for their benefit at her decease. She refused to comply with that demand, but determined to accede to it so far as the real estate was concerned. At that time she had sold the mansion-house property for $22,500, receiving for it $12,500 in cash or securities, and a house and lot on Linden street, Camden, valued at $10,000. In the trust deed she accordingly set apart, the Linden street property as valued at $10,000 and certain securities representing in value the $700 proceeds of sale of the Shamong property and the $12,500 personalty proceeds of the mansion-house property, making a total in value of $22,900; these she conveyed to defendant trust company in trust for her heirs in such manner that the income should be paid to her for life and at her death the corpus was directed to be divided between her 'heirs, but complainant’s share was to be retained by the trust company during complainant’s life and only the -income paid tq him, and at his decease his share was directed to- be held by the trust company for the benefit of his children until they arrived at the age of twenty-one years, and then paid to them. Complainant now desires the possession of his share and to that end the bill seeks to set aside the trust so far as it contemplates the postponement of the immediate enjoyment of his share. Considerable testimony has been taken to- show that complainant consented to- the execution of the trust deed. The evidence, however, fails to- establish that fact. I at first inclined to the view that complainant’s conduct subsequent to the execution. of the trust deed, and especially since the decease of Ms mother in accepting from the trustee pa)'ments of income under the trust and in renting the real estate from the trustee, has amounted to such a recognition of the trust upon his part as would now deny to Mm the right to repudiate it, but further consideration satisfies me that any apparent acquiescence of complainant is so clearly attributable to ignorance upon Ms part that it cannot be equitably treated as a bar to the present assertion of Ms rights.

I will advise a decree pursuant to the prayer of the bill. Suggestion was made at the hearing that the child or children of complainant, who will be affected by the decree, were not properly before the court. If the record discloses this condition complainant may have leave to take such proceedings, before final decree, as will insure full protection to all interests involved.


text:
    Annie E. Chew v. John H. Chew.
    [Submitted April 15th, 1908.
    Decided April 16th, 1908.]
    1. Where complainant showed that defendant, restrained by the writ of me exeat, had expressed an intention of leaving the jurisdiction, and disclosed such home conditions as would naturally impel defendant to go away, a motion to discharge the writ would be overruled, though defendant denied that he had ever had or expressed a purpose to leave the state.
    2. Where the restraint of the writ of ne exeat interferes with the freedom of defendant’s movements in meeting pressing business engagements out of the state, the court will entertain a motion for the substitution of a bond to answer the decree.
    On motion to discharge writ of ne exeat.

      Messrs. Garrow & Kraft, for the motion.

      Mr. Lewis Starr, opposed.
   Leaming, V. C.

From the affidavits before me I am convinced that the writ of ne exeat should be retained. It is probably impossible for a complainant, in any case, to establish with entire certainty a positive intention upon the part of a defendant to permanently leave this state. But when a defendant has given expression of an intention to leave the jurisdiction, and the evidence discloses not only an absence on his part of such home ties as would render the course improbable, but also discloses such distasteful and distressing home conditions as would naturally impel him to go away, it seems clear that the writ should continue to serve its purpose. In view of the very positive and forceful denials by defendant that he ever had or expressed a purpose to leave this state, I should hesitate to accept the contrary view were it not for the affidavit of Smith C. More. His affidavit, to my mind, clearly establishes for complainant the preponderance of evidence touching this disputed fact. As to the unattractiveness of remaining and the probable relief to be found in the going there can be little doubt. Giving full consideration to all the evidence, I am satisfied that the case presented is one in which the writ should be sustained.

Should the restraint of the writ be found to interfere with the freedom of defendant’s movements in meeting pressing business engagements out of this state, I will entertain a motion for the substitution of a bond to answer the decree.


text:
    Martin E. Brigham v. The H. G. Mulock Company.
    [Submitted April 15th, 1908.
    Decided April 29th, 1908.]
    1. Where a covenant provided that no building should be erected within twenty feet of the front property line of any street, except on A. avenue, or within five feet of the side line of any lot, the building line applied to both the front and side street lines of corner lots.
    2. Where a street line building restriction was inserted in the deeds to a city addition, whether the rights of an owner of a single lot to enforce the restriction had become barred by acquiescence in the violation of the covenant by others must be measured by the relation of the asserted violation to the individual lot.
    3. Where a land company sold lots in a city addition with a building line restriction, no subsequent failure of the company to enforce such covenants in behalf of its remaining unsold lots could destroy the right of a purchaser of a lot subject to such restriction to enforce the same on behalf of his lot; the covenant having been made for the benefit thereof, pursuant to a general building plan.
    4. Where a building line restriction provided that no building should be erected within twenty feet of the front property line of any street, except A. avenue, .or within five feet of the side line of any lot, the fact that various encroachments on the five-foot restriction had been permitted did not show the abandonment of the restriction of twenty feet.
    ' 5. The erection of open porches and bay windows extending over a building line of twenty feet, pursuant to a popular interpretation of the restriction, was not evidence of an abandonment of the general building line scheme.
    6. A lot owner, entitled to the benefit of a building line restriction, could not be charged with abandoning such rights because he did not interfere to enforce the covenant in a case in which he had no substantial interest to protect for his own benefit.

      7. The ereption of a double house, consisting of two houses under one roof, constituted a violation of the building restriction forbidding more than one building to be erected on one lot for dwelling-house purposes.
    8. Where deeds to a city addition were made containing a Duilding restriction that no more than one building should be erected on each lot for dwelling-house purposes for the -'benefit of each lot, the fact 'that ten such buildings had been erected on the tract, only two of which were within two blocks of plaintiff’s property, did not show complainant’s abandonment of the right to enforce such restriction.

      On bill for injunction.

      Messrs. Thompson & Cole, for the complainant.

      Messrs. Bourgeois & Sooy, for the defendant.
   Leaming, V. C.

The bill does not disclose whether the deeds of complainant and defendant, and the several deeds in their respective chains of title, contain the restrictive covenants sought to be enforced, or the extent to which defendant may be charged with notice of these covenants, but as the right of complainant to enforce against defendant the observance of the restrictive covenants in question was conceded by defendant’s counsel at the hearing, provided complainant had not lost the right by reason of his own violation of the covenants or by reason of acquiescence in the violation of the covenants amounting in effect to their abandonment, the question of the bar to complainant’s rights, as urged by defendant, will alone be considered.

The case of Collins v. Waters (not reported), determines that the twenty feet building line covenant here in question applies to both the front and side street lines of corner lots.

The case of Chelsea Land Co. v. Adams, 71 N. J. Eq. (1 Buch.) 771 (another suit touching the covenant now in question) , must be -regarded as conclusive as to the right of that company to enforce in this court the covenant against the erection of a building nearer than twenty feet from the street line. That was a case in which the town site proprietor, owning property in all parts of the tract, had stood by and permitted violations of the covenant without complaint. While that was held to operate as a bar to the right of that company to prevent further violations of the same covenant, the adjudication clearly has no application to the rights of the owner of a single lot who may not have so acquiesced. It would scarcely be possible for any single violation of the covenants to occur without the interests of the original land company being directly affected; but the owner of a single lot may have no concern whatever in a violation of the covenants on a part of the tract distant from his lot. I am convinced that any claim of bar asserted against the rights of an owner of a single lot by reason of acquiescence in the violation of restrictive covenants of this nature must be measured by the relation of the asserted violation to the individual lot. This view was taken by me in Barton v. Slifer, 72 N. J. Eq. (2 Buch.) 812, in harmony with the views expressed by Yice-Chancellor Emery in Morrow v. Hasselman, 69 N. J. Eq. (3 Robb.) 612. The title to the lot now owned by complainant passed from the Chelsea Beach Company in the year 1889. Clearly no subsequent failure upon the part of that company to enforce similar covenants in behalf of its remaining unsold lots should operate to destroy the right of the owner of that lot to enforce in behalf of that lot the covenants which defendant now concedes to have been made for the benefit of that lot pursuant to a general building plan.

The covenants in question provided that no building shall be erected within twenty feet of the front property line of any street, except on Atlantic avenue, or within five feet of the side ' line of any lot, and also that “not more than one building be built or erected upon each lot for dwelling-house purposes.” The bill asserts that a building is about to be erected by defendant at the northwest corner of Arctic and Chelsea avenues — across the street from complainant’s property — and is to be erected with the main body of the building within ten feet of Arctic avenue, and the porch within ten feet of Chelsea avenue, and that the first story of the main body of the building will project over the porch and be less than twenty feet from Chelsea avenue; and also that while the building will be under one roof, it is intended for and is to be used as a double dwelling-house. This is not denied by defendant. The affidavits filed by defendant describe one hundred and sixteen buildings, erected at various parts of the tract, which are claimed by defendant to be erected in violation of the terms of some of the covenants above referred to. I have had great difficulty in locating these buildings. They are described with reference to street numbers and cannot be located by the record as filed. At the hearing a map of Chelsea was handed to me and the system of numbering explained; with its aid I have endeavored to comprehend the affidavits filed by the defence. These affidavits disclose that a great number of buildings have been erected nearer than five feet to the- side line of lots — the encroachment over the five feet restriction varying from a few inches to three feet. While this part of the covenant is not in question in this case, its violation may have been set forth under a claim that it tends to show a general abandonment of the original plan. I do not think it can be given that effect as against complainant. Whether a building is three or five feet from the said line of a lot is a matter of little concern to anyone except the owner of the adjacent lot or lots in the immediate vicinity, and I cannot think it strange that this part of the covenant has not been strictly observed. But whatever effect these violations of this part of the covenant may have against parties seeking its enforcement, I am unable to conclude that it should operate as a bar to the enforcement by complainant of those parts of the covenants which he now seeks to enforce.

' The affidavits also disclose that a large number of buildings have been erected with open porches, and some with bay windows, extending over the twenty feet restriction line. The building which defendant is about to erect is of that nature. I entertain grave doubts whether the covenants in question were intended to apply to open porches and bay windows not extending to the ground. The fact that so many buildings have been erected with the main body of the building located with reference to the build-mg line and-with open porches and bay windows extending over the line measurably indicates a popular interpretation of the restriction to that effect. As is said in Morrow v. Hasselman, 69 N. J. Eq. (3 Robb.) 612, 617, if these porches have been erected under an erroneous construction of the covenant, that fact is no evidence of an abandonment of the general scheme.

Defendant’s affidavits also disclose that six buildings have been erected on the tract with the main body of the buildings less than twenty feet from the street line. I cannot be entirely certain that I have accurately located these buildings. The one nearest to complainant’s property I take to be that referred to in the one hundred and fifth subdivision of the affidavit of Mr. Ash-mead. That building is on Arctic avenue and one block from complainant’s property. Another is on Chelsea avenue at the corner of Atlantic, also a block away from complainant’s property. Another is on Chelsea avenue south of Pacific, two blocks away. Another on Montpelier avenue with the location not given. The others are too far away to be of possible concern to complainant. It may be that the two buildings referred to as a block from complainant’s property are sufficiently near to have imposed upon complainant, or upon such person as may have been the owner of complainant’s lot when these buildings were erected, the duty of appeal to this court for protection, but I think not. Their erection contrary to the terms of the covenants could have affected complainant’s property but slightly, if at all. I cannot believe that to escape the burden of the charge of abandonment of a restrictive covenant of this nature it becomes the duty of a party who is entitled to enforce the covenant to interfere in any case where he has not at least a substantial interest to protect for himself.

The covenant forbidding more than one building to be erected upon each lot for dwelling-house purposes, is, in my judgment, broken -by the erection of what is commonly known as a double house — that is, two houses under one roof. Such a structure is as much two buildings for dwelling-house purposes as though separate roofs existed. The two dwellings may pass to separate owners and the dividing wall become a party wall. Defendant’s affidavits disclose ten such buildings on the tract. Most of these arc on Atlantic avenue. One is on Chelsea avenue, not quite a block from complainant’s property, and another on Arctic avenue, nearly two blocks away. These, in my judgment, afford.no evidence of complainant’s' abandonment of the covenants.

The claim that complainant has violated the covenants now sought to be enforced is based upon the fact that his porch extends beyond the twenty feet restriction line. As already stated, I do not deem that a violation of the covenants in view of the fact that the covenants do not appear to have been regarded as applying to open porches.

I will advise a decree enjoining defendant from building the main body of his house nearer to either Arctic or Chelsea avenues than twenty feet, and from erecting what has been referred to as a double dwelling-house.


text:
    George Y. Schoch v. Francis Garrison.
    [Decided May 2d, 1908.]
    1. Where a bill for injunction alleges in general terms that irreparable injury will result by the act complained of, but fails to disclose wherein such irreparable injury will arise, or to aver that defendant is pecuniarily irresponsible, or that the damages will not be easily ascertainable and recoverable, no ground for relief is shown, in the absence of other recognized grounds of equitable jurisdiction.
    2. Where the riparian commissioners granted land below high-water mark, "with the right and privilege * * * to exclude the tidewater from so much of the land * * * as lies under water by filling in or otherwise improving the same, and to appropriate the lands under water,” the right of the grantee, before appropriation of the land, to exclude others from exercising a common right to fish, is in such doubt that injunction will not issue to protect it.
    On bill for injunction.
    The bill is filed to restrain defendant from completing the erection of a “pound” on certain land below higli-water mark on Delaware bay store, which, land is within the boundaries of a grant made to complainant by the State of New Jersey through its board of riparian commissioners. The terms of the grant held by complainant are identical with the terms of the grant which was considered in BurTehwrdt v. Heinz Co., 11 N. J. Law (4-2 Vr.) 862. The bill asserts that the lands within the boundaries of complainant’s grant are chiefiy valuable for catching king crabs in May and June of each year, and that defendant is at this time, without right, engaged in erecting a pound, at a certain point on the lands covered by the riparian grant, which pound is to be used by defendant for the purpose of catching king crabs during the approaching crab season.

      The defence made is that no part of the lands included in complainant’s riparian grant have been reclaimed or in any way appropriated by complainant to bis exclusive private use; that the land under water within the boundaries of complainant’s grant includes the Delaware bay shore front between high and low-water mark for a distance along the shore of over half a mile, and that for a period which appears to extend beyond the memory of the oldest people, this tidal land has been used by the general public for fishing for king crabs and fish; that the method now commonly adopted in catching king crabs is by the use of pounds similar to that which' defendant is constructing; that these pounds or traps are constructed by suspending netting oh posts extending at right angles to the shore and are, when constructed, temporary structures for use only during the fishing season and are then removed; that the common right of the public to fish for crabs with pounds is sanctioned by custom, and that the use of the device is in no way exclusive of or derogatory to the equal rights of others to fish for crabs in like.manner.
    Hearing has been had at the return of an order to show cause upon the bill and answer accompanied by affidavits in behalf of the respective parties.

      Mr. Harry S. Douglass, for the complainant.

      Mr. William G. French, for the defendant.
   Leaming, V. C.

The question for consideration, is whether this is one of that class of cases in which a court of equity may, by decree of injunction, protect and enforce the legal rights in real estate now asserted by complainant. It is not alleged that defendant is pecuniarily irresponsible or unable to answer in damages. The bill in general terms alleges that irreparable injury will result to complainant if defendant is permitted to complete the structure complained of, but no specific averment of the bill discloses wherein such irreparable injury will arise. The bill alleges that the territory included within the boundaries of the riparian grant is chiefly valuable for catching king crabs, and an affidavit annexed to the bill states that the existence of the pound which defendant is erecting will prevent complainant from using or renting the land so occupied by the pound of defendant, and that defendant has not offered to pay complainant, but it is nowhere averred that the amount of any damages which complainant may suffer will not be easily ascertainable and recoverable. As no ground of jurisdiction peculiarly equitable is presented it is manifest that relief, if granted, must be based upon the existence of legal rights which are sufficiently clear and well settled to call for the exercise of the equitable remedy now sought. An exact and authoritative statement defining the limitation of equity jurisdiction in cases within the class to which the present case belongs is contained in Outcalt v. George W. Helme Co., 42 N. J. Eq. (15 Stew.) 665, 676, in which case the late Justice Dixon, speaking for the court of errors and appeals, said: “When the real gravamen of the bill is the uneonscientious refusal of the defendant to yield to complainant the enjoyment of his legal estate, as it is in bills like the present, for nuisance or for trespass, then (in the absence of other recognized grounds of equitable jurisdiction) a condition precedent to the right of the complainant to bring his adversary into the court of conscience is that the latter’s misconduct shall be admitted or shall have been established at law against him, for only such misconduct can be deemed unconscientious as well as illegal.”

Defendant does not deny the existence or validity of complainant’s grant, but asserts the right to exercise the common right to fish upon the land until complainant shall have made some appropriation of the land inconsistent with the exercise of the common right referred to. In the case of Polhemus v. Bateman, 60 N. J. Law (31 Vr.) 163, a riparian, grant, containing a reclamation clause similar to, but not exactly the same as complainant’s grant, was treated as insufficient to support an action of trespass quare clausum until after the grantee should have exercised the power of reclamation conferred by the grant. In the subsequent case of Burkhard v. Heinz Co., 71 N. J. Law (42 Vr.) 562, the same court had before it, in an action of ejectment, a riparian grant containing a reclamation clause identical with the grant now held by complainant. While in that case the court held the grant sufficient to sustain an action of ejectment against a defendant who had erected a permanent structure upon a portion of the land included within the boundaries of the grant, I find in the opinion of the court language which, I think, • may be fairly said to warrant a substantial doubt whether that court would have sustained an action under that grant against a defendant who had merely exercised a common right to fish in the sea before the grantee had made some appropriation of the land which was inconsistent with the exercise of such common right. If such a doubt touching the rights conferred by the grant held by complainant exists, it is plain that this case is not one falling within the class of cases in which a court of equity should extend relief for the enforcement or protection of legal rights in land. From the two decisions cited it is clear that, within the field of statutory powers conferred upon the board of riparian commissioners, the grants made by the state through that board must be construed as conferring such rights and privileges as the language of the grants may import. The clause touching the privilege of reclamation and appropriation cannot be without a purpose, and I am not prepared to say, in view of the suggestions contained in Burkhardt v. Heinz Co., supra, that it should be considered as well settled that such a grant is effective to terminate the common right of fishery before any act of possession or reclamation shall have been exercised by the grantee. Complainant’s remedy, if any exists, is at law.

I will advise an order discharging the order "to show cause. Should the parties desire toi be heard touching the retention of the bill until the termination of a suit at law, I will hear the parties on that question.


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    Elizabeth Smith v. Hotel Ritz Company.
    [Submitted May 4th, 1908.
    Decided May 6th, 1908.]
    The receiver or general creditors of an insolvent corporation are not “judgment creditors” within P. L. 1808 pp. 699, 700, §§ 71, 72, relating to conditional sales of chattels, and protecting only judgment creditors, subsequent purchasers, and mortgagees, without notice.
    On petition of Frank & DeKayser for possession of certain chattels.
    Suit to determine whether an unrecorded conditional sale agreement is valid as against the receiver and general creditors of defendant insolvent corporation.

      Mr. Ulysses G. Styron, for the complainant.

      Mr. Eli H. Chandler, for the petitioner, Frank & DeKayser.

      Mr. Oliver T. Rogers, receiver, pro se.

   Leaming, V. C.

I am unable- to determine that the unrecorded agreement of conditional sale now 'in question is void as against the receiver or general creditors of defendant corporation. The Chattel Mortgage act under consideration in Graham Button Co. v. Spielmann, 50 N. J. Eq. (5 Dick.) 120, and in Currie v. Knight, 34 N. J. Eg (7 Stew.) 485, provided that mortgages not executed and recorded in accordance with the act should be void as against creditors of the mortgagor. While in Currie v. Knight, supra, it was held that creditors could not, without a judgment or other lien on the chattels, assert their claims against the validity of such a mortgage, it was also held that when a lien should have been procured by a creditor and the invalidity of the mortgage asserted by virtue of the lien, the infirmity of the mortgage would be ascertained by reference to conditions obtaining at the time the creditors became a creditor and not at the time the lien of the creditor was procured. The provisions of the act that the mortgage should be void as to creditors (general creditors) was thus observed and enforced. In Graham Button Co. v. Spielmann, supra, it is held that insolvency of a debtor corporation operates, under our statute, to fasten the debts of such corporation on its property in such manner as to enable the receiver of the corporation, in behalf of its creditors, to assert the invalidity of a chattel mortgage which has not been executed and recorded in accordance with the provisions of the Chattel Mortgage act. It is manifest that the principles controlling these decisions do not extend to the present case, for the provisions of our statute touching conditional sales of chattels (P. L. 1898 p. 670 §§ 71, 72) protect only judgment creditors, subsequent purchasers and mortgagees without notice. While the claims of general creditors of an insolvent corporation are fastened upon its property by force of the provisions of our Corporation act touching insolvency and the appointment of receivers and distribution of assets in such manner as to enable either a receiver or general creditor to assert in this court the invalidity of a chattel mortgage which the statute declares void as to creditors, yet it is apparent that such receiver or general creditors cannot in any sense be regarded as judgment creditors within the meaning of the conditional sales statute referred to.

I will advise an order directing the receiver to deliver the chattels in question to petitioner.


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    American Ice Company v. James Lynch.
    [Submitted May 7th, 1908.
    Decided May 8th, 1908.]
    1. An agreement by one entering into the employ of another as ice wagon driver and canvasser for customers not to engage in the ice business within the territory covered by his route or within five squares therefrom for one year after his employment should cease, and, should he do so, to pay $200 as liquidated damages, was not an alternative contract, extending an option to either refrain from engaging in an opposition business or to engage therein by paying $200 for the privilege, so as to preclude an injunction restraining the employe from engaging in such opposition business.
    2. An agreement by one entering into the employ of another as ice wagon driver and canvasser for customers not to engage in the ice business within the territory covered by his route or within five squares therefrom for one year after his employment should for any cause cease, was reasonable as to the territory and period of restraint.
    On bill for injunction to restrain defendant from engaging in an opposition business contrary to his agreement.
    The bill seeks to enforce against defendant a certain contract wherein defendant agreed not to engage in the ice business within a specified territory for a period of one year. Defendant was employed by complainant as a driver of an ice wagon and canvasser for customers. The agreement of employment was embodied in a bond which defendant and a surety gave to complainant for $200 in amount conditioned that defendant would faithfully perform the duties and engagements specified in the several recitals contained in the bond. Among these recited agreements on the part of defendant was one to the effect that defendant would not engage in the ice business within the territory covered by his route or within five squares therefrom for one year after his emplojunent should for any cause cease. Another part of the agreement, as recited in the bond, provided:
    “And further, if the said James Lynch shall leave the service or cease to serve the company without their consent during said term for which he has been employed or shall, after leaving of his own accord or being-discharged by the company, engage in the ice business as aforesaid, -within the time and territory above described then he shall pay to said company the sum of two hundred dollars, not as a penalty, but as liquidated damages.”
    Defendant does not deny that he is engaged in tlie ice business contrary to the terms of his agreement; but insists that the stipulation touching liquidated damages operates to deny to this court the right to enforce the covenant.
    Heard on return of an order to show cause for a preliminary injunction.

      Messrs. Grey & Archer, for the complainant.

      Mr. William C. French, for the defendant.
   Leaming, V. C.

The contention of defendant finds support in a considerable number of adjudicated cases; but this court is now firmly comv mitted to the opposite view. Crane v. Peer, 43 N. J. Eq. (16 Stew.) 553; Brown v. Norcross, 59 N. J. Eq. (14 Dick.) 427; Avon Land Co. v. Thompson, 60 N. J. Eq. (15 Dick.) 207. A consideration of the terms of the present contract and the conditions necessarily surrounding its execution clearly discloses that it was in no sense intended by the parties as an alternative contract designed to extend to defendant an option to either refrain from engaging in an opposition business or to engage in that business among complainant’s customers by paying $200 for the privilege, after having acquired a knowledge of complainant’s business and an acquaintance with its customers. The specific agreement of defendant is not to engage in the business. The purpose and force of that language cannot be mistaken. Had it been the-intention of the parties to also provide that defendant should be privileged to purchased his liberty to perform the act which he specifically agreed not to perform, that intention should have been expressed in language equally clear. The territory of restraint and the period of restraint are reasonable, and complainant is clearly entitled to the aid of this court in the enforcement of the agreement.

The stipulations in the contract touching arbitration have no reference to the present conditions, and such stipulations do not operate to defeat the relief now sought.

I will advise an order directing a preliminary injunction to issue to restrain defendant from engaging in the business named within the territory and period specified in the contract.


text:
    Helen R. Ricketts v. John P. Tompkins.
    [Decided January 24th, 1908.]
    After the death of defendant’s aunt there was found among her effects a paper signed by her, to the effect that she desired defendant to have all her property, but the paper was ineffectual as a will. Defendant procured a conveyance of certain real estate which had belonged to his aunt from her two surviving sisters, but afterwards, discovering that complainant, a child of a deceased sister of the aunt, had inherited an interest, he procured a conveyance from her. He testified that he told her that the aunt had left a will, but that it was of no value, except to show her intention, and that the title company would not pass the title -unless it was made good by her signature. She testified that he told her that a will had been left to him, but that there was a slight technicality in the wording of the will which woúld necessitate her signature in order to obtain title insurance. Complainant executed the conveyance without receiving any consideration, and, though the property was valuable, defendant failed to disclose its value, and complainant had np knowledge of the value. — Held, that complainant was entitled to a cancellation of the deed for fraud.

      Heard on pleadings and proofs.

      Mr. Edmund C. Gaskill and Mr. Ulysses G. Giyron, for the complainant.

      Messrs. Thompson & Cole, for the defendant.
   Leaming, V. C.

Complainant and defendant are cousins. Their aunt had died intestate, leaving the real estate now in question, and defendant had procured a conveyance of the property from the two surviving sisters of the deceased aunt in the belief that the property had descended to them, to the exclusion of children of their deceased brothers and sisters. After taking possession of the property, and exercising exclusive control over it for some months, he attempted to sell it, and then ascertained that his ownership only included an undivided interest, and that his cousins — children of the deceased brothers and sisters of his deceased aunt— were co-tenants with him. He then visited his several cousins, including complainant, to procure from them conveyances to him for their undivided interests. Complainant executed the deed as requested by defendant without consideration, and now seeks to avoid the deed by reason of misrepresentations made to her by defendant. It appears that among the papers of the deceased aunt, defendant had found a paper on which the following was written in pencil, over her signature: “I give and bequeath to my nephew, John P. Tompkins, all I have and possess of real estate and personal property or may hereafter acquire. Annie H. Roberts, May, 1903.” This paper defendant had in his pocket, but did not produce at the time he induced complainant to execute the deed in question. His testimony is that he told complainant that his aunt (Annie R. Roberts) had left a will, but that it was not properly drawn and was of no value, except to show her intention, and that the title company would not pass that title unless it was made good by the signature of the different heirs. On the other hand, complainant testifies that defendant’s statement to> her was that the deceased aunt had “left a will to him,” and that there was a little technical term in the wording of the will and he wanted her to sign a paper, as the title company would not insure the title without the signature of the heirs. Complainant also testified that defendant told her, or induced her to believe, that the property was of little value, that it was heavily encumbered, and also said something about the mortgage on the property being foreclosed. Other cousins of defendant, who at the request of defendant made about the same time, signed the same deed, have testified to representations made to them by defendant of substantially the same nature as shown by the testimony of complainant. To none of the cousins did defendant disclose that the property had any substantial value above the encumbrances, whereas he had at that time contracted to sell the property for about $10,000 above the amount of the encumbrances against it, and to none of the cousins did he exhibit the pencil writing, which he called a will, notwithstanding the fact that the paper was in his pocket.

With this evidence before me I am unable to doubt the truth of complainant’s statements. At the hearing I was impressed that she was stating truthfully her recollection, of the conversation between her and defendant. The testimony of the other cousins, to whom similar representations were made by defendant at about the same time and for the same purpose, operates to powerfully corroborate the testimony of complainant. Assuming the statements made by defendant to have been narrated by complainant with substantial accuracy, there can be no doubt as to her right to the relief now sought. The difference between a representation to the effect that a title is held under a will and that the title so held has been found by a title company to be unmarketable by reason of technical defect in the will and a representation that no valid will existed, is all the difference between truth and falsehood. In the former case a possible heir would be asked to surrender a possible interest. In the latter case a certain heir would be asked to surrender a certain interest.

But another aspect of the case should not be overlooked. Whatever the exact language used by defendant to complainant may have been, it is entirely manifest, even from the testimony of defendant, that he did not make to complainant a full and fair disclosure of all the material facts touching the property which were within his knowledge, and which facts he knew were not within the knowledge of complainant. While she testifies that he gave her to understand that the property was of little value, he does not even claim that he disclosed to her the real value of the property. The paper referred to by him as a will he did not exhibit to her, notwithstanding the fact that the paper was in his pocket. The evidence convinces me that it was the defined purpose of defendant to disclose to complainant as little as possible, by reason of the fear that a full disclosure would defeat his plan to procure something 'for nothing. That his fears were well founded I entertain no doubt, for I am satisfied that, had defendant made to complainant a full, fair and ■open statement of the facts within his knowledge touching the property and complainant’s real relations to it, complainant would not have conveyed her interest without compensation. In this view, I think the case falls within that class of cases where it is the duty of a party having knowledge of material facts to ■discover them to the other party. While there was no pre-existing fiduciary relation between these parties, the transaction was ■of such a nature that a trust relationship was necessarily created by force of the very circumstances involved. The transaction was not one between vendor and purchaser. Defendant sought to procure a conveyance to himself of a valuable interest for nothing, and to that end approached an owner, who was his cousin -and who did not know that-she owned an interest, and who knew nothing about the value of the property in question. Her knowledge was wholly dependent upon the information which defendant should communicate. By reason of her confidence in defendant’s integrity, she acted upon the information thus communicated and made the conveyance without charge as requested. Under these conditions it seems entirely clear that defendant was charged with the duty of full disclosure, and that any failure upon his part to perform that dut-y which resulted In loss to complainant, is an equitable ground for her relief. Under the circumstances of-this case there can be no substantial ■difference between an affirmative misrepresentation of facts and an incomplete and inadequate statement of what purported to be the material facts. Complainant was, under the existing circumstances, entitled to know and to have been apprised by defendant that she was disposing of an interest of substantial value, and that what the defendant referred to as a will was, in fact, in instrument of no manner of force. These material facts were not disclosed by him, with the result that complainant signed the deed under a misapprehension of the facts, and defendant is clearly responsible for such misapprehension, and should not profit by it. In Torrey v. Buck, 2 N. J. Eq. (1 Gr. Ch.) 366, 380, the learned chancellor says: “It is this very holding back of information which in this case created all the difficulty. A suppressio veri is as good a reason for setting aside a conveyance as a suggesiio falsi."

I will advise a decree setting aside the deed and a reference to a master for an accounting.


author: Howell, V. C.

text:
    William D. Kellogg, administrator, &c., v. Emma L. Burnett et al.
    [Submitted February 7th, 1908.
    Decided February 18th, 1908.]
    1. Where testator’s will provided that, after the decease of his two children, the rest of the property, except as permanently willed to his wife, should be divided equally among his grandchildren then living, &c., the period for distribution would not arrive until the death of both children, since the residuary legatees could not be determined until then.
    2. Where a testator’s will provided that his wife and two children should each have one-third of the proceeds of certain property, to be paid in semi-annual installments, but that no part of the principal should be paid to either of the children, and, if the wife died before the children, then her share should be added and counted as belonging to the two children, share and share alike, the will did not give the children a joint tenancy with a right of survivorship, and upon the death of one the whole income would not go to the other.
    3. The court of chancery cannot be compelled to construe a will except as incident to some relief which may be afforded by a final decree, nor can it be induced to give counsel and advice to the parties generally, but only for the purpose of giving positive directions for the action of the trustee; hence, where the court has determined that an estate is not ripe for a division, it has no jurisdiction to entertain a bill for directions concerning the distribution until the time for distribution arrives.
    Final hearing on bill, answers and replications.
    The bill in this case seeks a construction of the will of Oliver Smith, who died in 1875. The testator left him surviving two children, Emma L. Burnett, who is still living, and Stephen O. Smith, who died in 1906. Mrs. Burnett, the surviving child, has three children, Frederick M. Burnett, Anna Y. Canniff and Neville S. Burnett. Stephen O. Smith, the deceased son, left a widow, Alice M. Smith, and a daughter, Mary A. Smith. The property in question consists of real and personal estate, the personalty being valued at upwards of $13,000, and the realty at $8,400. The provisions of the will, construction of which is sought, are as follows:
    “(3) The rest and residue of all my property, both real and personal, I hereby order and direct my executors hereinafter named to collect the rents thereof, if the same should be in houses or lands, and the interest thereon if the same should be in money at interest or on dividends or stocks, and to pay such rents or interest or dividends in half yearly payments to my heirs as follows: One-third part thereof to my said wife as the preceding section directs, and one-third part thereof to my daughter, Emma L. Burnett, the wife of Elijah D. Burnett, and the other third part thereof to my son, Stephen O. Smith; and I hereby further order and direct that in case my said executors should at any time think it advisable to sell and dispose of any or all of my real estate (excepting my homestead as before bequeathed to my said wife) they may by and with the advice and consent of both my said children sell and dispose of the same and safely invest the proceeds thereof at interest, but it is my express directions that no part of the principal shall be paid to either of my said children during their lives, and if my said wife should depart this life before my said children then and in that case her third part as aforesaid shall be added and counted as belonging to my said two children share and share alike.”
    “(4) After the decease of my said two children all the rest and residue of my said property (excepting as aforesaid I have permanently willed to my said wife) I order and direct- shall be divided in as -many parts as I may have grandchildren living and each grandchild shall be entitled to an equal share thereof, to be paid them respectively as they arrive at the age of twenty-one years, or if either of them who are girls should mary before they arive at that age (twenty-one years) they shall at the time of such marriage be entitled to their said portions, and if either of my said grandchildren should die before such devision should be made, leaving lawful issue, then and in that case their said issue shall be entitled to their respective portions of their said parents.”
    The testator owned at the time of his death a tract of land on Boston street, Newark, which by the second codicil of his will he devised to Emilie L. Biker for the term of her natural life; she is still living. Some years ago she conveyed her life estate to the above-named Stephen O. Smith, whose representatives will continue to enjoy the rents and profits thereof until the death of Mrs. Riker.

      Mr. William T. Day, for the complainant.

      Mr. William II. Francis, for the defendants Alice M. Smith and Mary A. Smith.

      Mr. Archibald F. Slingerland, for the defendants Emma L Burnett, Frederick M. Burnett and Neville S. Burnett.

      Mr. Thomas A. Davis, for the defendant Anna Y. Cannifi.
   Howell, V. C.

The first question arising under this will is whether the period of distribution of any portion of the principal or any portion of the accumulated income of the testator’s estate has arrived. The first clause of the fourth item of the will appears to fix this period at a time “after the decease of my said two children.” This must be held to mean at the time of the death of the said two children, and, inasmuch as only one of the two children has died, it is my opinion that the period of distribution has not yet been attained.

This seems to have been the decision of this court in the case of Whittaker v. Whittaker, 40 N. J. Eq. (13 Stew.) 33. There the testator gave to his wife a life estate in realty and personalty with a contingent interest therein to his wife’s niece if she should survive the wife, after which he provided: “After the decease of my said wife and niece I give my estate to my lawful heirs to be equally divided among them share and share alike.”

That case was in its facts very similar to the case at bar; there was a life estate to two persons with a devise over upon their death to a class; and it was held by Chancellor Runyon that the gift over to the class, namely, his lawful heirs, did not take effect until the death of both the wife and niece. He says: “It is quite clear that the testator intended to postpone the distribution of all his estate until the death of both those persons;” and such is undoubtedly the construction to be placed upon the present will. The devise over in this case is after the death of the two life tenants, and the fact cannot be determined who shall belong to the class of ultimate legatees until both the life tenants shall have died. Although the surviving life tenant is now probably beyond the age of child bearing, the court will not enter upon any presumptions that the class of legatees may not be enlarged. Indeed, it is more likely to be diminished by the death of one or more of the present grandchildren who would belong to the class if the distribution could be now made..

It appears in the case that since the death of Stephen O. Smith, the executor and trustee has paid to Mrs. Burnett only one-half of the income of the estate, and that he has made no disposition of the remaining half of the income, so that the complainant has in hand a sum of money which he says he cannot safely pay to anyone without the decree of this court. The case of Whittaker v. Whittaker contained a similar situation. There between the death of the wife and the arrival of the period of distribution some income had accumulated in the hands of the executor, and concerning this the chancellor made the same direction as he made concerning the principal. He held that the residuary gift in that case carried with it the devise of the intermediate income, that the intermediate income should be accumulated and divided at the time when the capital of the estate came to be divided. It was claimed on behalf of Mrs. Burnett that the gift of the income to herself and her brother must be governed by the ordinary rules governing gifts of personalty, and that under those rules she as the survivor was entitled to the whole of the accruing income during the time of her life. This is negatived by the words of the gift itself as they appear in the third clause of the will. The words are that the two life tenants shall receive the income, share and share alike, a phrase which is wholly inconsistent with a joint tenancy with a right of survivorshijo, but accords completely with the cases decided in this stale, on that point. It was so settled in Stoutenburgh v. Moore, 37 N. J. Eq. (10 Stew.) 63; affirmed, 38 N. J. Eq. (11 Stew.) 281, on the authority of Woolston v. Beck, 34 N. J. Eq. (7 Stew.) 74; Wills v. Wills, L. R. 20 Eq. 342. The cases cited by counsel for Mrs. Burnett (Begley v. Cook, 3 Drew. 662; Pearce v. Edmeades, 3 Y. & C. Ex. 246; 3 Jur. 245) appear to have been overruled in 1875 by the case of Wills v. Wills, above referred to. It was there held that words in a will very similar to those used in this will created not a joint tenancy but a tenancy in common of the life interest. The same rule was held by our court of errors and appeals in the case of Collins v. Wardell, 65 N. J. Eq. (20 Dick.) 366.

Again it is urged that the cases of Woolston v. Beck, Stoutenburgh v. Moore and Collins v. Wardell, are authorities for holding that one-half of the principal and all the accumulated income should have been divided upon the death of Stephen O. Smith. This insistment leaves out of view the very broad distinction between the facts in those cases and the facts in the case at bar. In those cases while the gifts may be said to have been to a class, the fact is that the class was ascertained and determined by the will itself. In this case the class is not so determined; it can only be determined by the efflux of time, because nobody can know how large the class may be or who may be included in it until the death of the last life tenant.

In Stoutenburgh v. Moore the words “at their death” were-held to mean “at the death of them respectively,” but such a construction of the words “after the decease of my said two children” in this will would do violence to the testator’s evident intention that the members of the residuary class should not be determined until the death of the last surviving life tenant, and that there should be but one, and that an equal division among all the members of the class. Eor the reasons above stated any other construction might lead to this result: First, an ascertainment of the members of the class in 1906, the date of Stephen O. Smith’s death, and a division at that time among the members so ascertained, and a subsequent ascertainment at the death of Mrs. Burnett, which may take place years after-wards, when the membership of the class may be changed and a materially different division be then made. Such an absurd result will be wholly avoided by fixing the membership of the residuary class at one time, and that at the death of Mrs. Burnett.

Having thus determined that the estate is not ripe for a division the duty of the court ends. This court has no jurisdiction to entertain a bill for directions about the distribution until the time for distribution arrives. It cannot be compelled to construe a will except as incident to some relief which may be afforded by a final decree, nor can it be induced to give counsel and advice to the parties generally, but only for the purpose of giving positive directions for the action of the trustee. Hoagland v. Cooper, 65 N. J. Eq. (20 Dick.) 407; Bevans v. Bevans, 69 N. J. Eq. (3 Robb.) 1.

The bill must therefore be held to have been prematurely filed, and must be dismissed; but in view of the claims made by the several answering defendants, it cannot be said that the matter was opened to the court without reason, and the decree will, therefore, be without costs.


text:
    George F. Tuttle, executor, &c., v. Felix M. Woolworth et al.
    [Submitted March 19th, 1908.
    Decided April 4th, 1908.]
    1. A testator, by his will, gave and devised to his executors and trustees certain portions of his estate in trust, the use and income for the benefit of his daughter during her life, and at her death, the principal, for the benefit of her surviving children, and if she should leave none, then, for the benefit of his other children. Prior to the execution of the will this daughter had joined a semi-religious and sociological society, whose members rejected the ideas of the marriage relation prevalent and lawful in this country, and contracted an alliance with a man who became the father of her only child, whom she left surviving and who was born prior to the execution of the will. In a suit brought for the construction of the will and for direction as to the disposition of the corpus of the trust fund which was claimed by this illegitimate child, one of the defendants, it appeared from the evidence that the testator knew that his daughter had contracted this illicit alliance with the man who was the father of her child, and that the child which was the fruit of this irregular relationship was illegitimate, and that he was her only child, her only issue, and that this knowledge came to him before the execution of his will. — Held, that it must be implied from the terms of the will and the circumstances surrounding its execution that the testator' meant that the remainder of the share of his estate in question should go to the then living illegitimate child, or to any other illegitimate children that might be the fruit of her irregular relationship in the society which she had joined.
    2. The decision of this point in favor of the defendant claimant has the effect of conferring upon him by necessary implication the title to the estate of which his mother, during her lifetime, received the income.
    3. This is in entire consonance with the statutory provisions of this state relating to the devolution of the title to personal property in the case of illegitimates.
    4. By the statute of distribution now in force (P. L. 1898 p. 778) it is declared that if the mother of any illegitimate child or children shall die without leaving a husband surviving her, and leaving no lawful issue, or the issue of any, then the surplusage of .her goods, chattels and personal estate shall be paid to her illegitimate child or children.
    5. The question arising out of the claimant’s statutory legitimation is not discussed, yet the facts of the case bring it within the principle of certain cases on that subject decided by the courts of this state arising under the statutes of other states.

      On final hearing on bill, answers, replication and proofs.
    The bill in this case is filed by an executor and trustee; it seeks a construction of the will under which he is acting, and directions as to the disposition of a particular fund remaining in his custody.
    The will in question was executed in December, 1871. The testator died in January, 1872. He left three children, all of whom he provided for. It is the bequest in favor of his daughter Caroline which causes the question that is now to be considered..
    The testator devised to the trustees, in the first place, a house and lot, which they were directed to permit his said daughter to use and occupy during her natural life, with this direction:
    “And after her death to convey the same to her children, or if it shall be deemed more desirable by my executors, and for the interest of said children, then to sell the said house and lot and divide the proceeds thereof among said children, share and share alike, but should the said Caroline die without issue her surviving, then I direct my said executors to sell and convey the said house and lot and distribute the proceeds thereof among her heirs,” &c.
    The testator likewise gave to his executors and trustees certain bonds and stocks upon the trust that they-should collect the income therefrom and use the same for the purpose of paying all expenses incidental to the maintenance of the above-mentioned house and lot, and if there was any balance of the said income remaining unexpended for that purpqse, to pay the same to his said daughter during her natural life and upon her separate individual receipt;
    “and after her death to set oil the said bonds and stock to her children or theirs; if the said Caroline shall die without issue her surviving or children of such issue, then said bonds and stock shall revert to my estate,” &c.
    The main provision, however, is contained in the twenty-third paragraph of the will. By that he divides his residuary estate into three parts, and devises one of the portions to his executors in trust for the use of his daughter Caroline during her natural life,

      “the income of said part to be paid to my said daughter Caroline upon her separate individual receipt; and after her death the principal of said part is to be distributed among her children, if any shall her survive. If she- shall leave no child or children surviving or issue of such child or children who shall likewise be entitled, then such part shall go to my son and remaining daughter,” naming them.
    The testator’s daughter Caroline died in 1907, and her life estate being thereby terminated, question has arisen as to the proper disposition of the capital of the fund. This now consists principally of personal property, the only real estate being the single house and lot above mentioned. Some time prior to the exeeution of this will the testator’s daughter Caroline had joined a semi-religious and sociological society, whose members rejected the ideas of the marriage relation which are prevalent and lawful in this country. She there contracted an alliance with a man who became the father of her only child, which child now claims the fund in the hands of the complainant as the child or issue of the testator’s daughter Caroline, and as one who comes within the terms of the will as such child or issue. This so-called child, now the claimant of the fund in question, was born in October, 1870, prior to the execution of the will under the terms of which the fund is to be distributed.
    Considerable evidence was taken to show the family situation at the time the will was made. It appears that, notwithstanding the unusual course of life which the daughter Caroline had chosen, the friendly and filial relations between her and her father and the other members of the family were never broken. The testator was a man of large wealth and of wide business experience. He was president of a large and successful banking institution, and a man of intelligence and high character. Some correspondence between the father and this daughter is in evidence; it is filled with expressions of- respect and affection on the part of both. When, her child was born she reported the fact +0 her father (on November 17th, 1870) by a letter, in which she gave the name of the child’s father, and stated that she had given to the child himself for his middle name the family name of the testator’s family, and that name the claimant still bears.
    It is manifest from the evidence that the testator knew that his daughter had contracted an illicit alliance with the man who was the father of her child, and that the child which was the fruit of this irregular relationship was illegitimate, and that he was her only child, her only issue, and that this knowledge came to him before the execution of his will. In fact, it appears that he had executed a prior will, which was in force at the time of the birth of the- child, and that he destroyed it and executed the present will after that event and after his knowledge of it; and it is claimed, on the part of the claimant, that a proper construction of the document will award to him the whole fund, the income of which was by the will given to the daughter (his mother) for life, for the reason that the testator must by necessary implication have intended to benefit this illegitimate child, there being no legitimate issue to answer the demonstration of the will. The evidence also shows that, prior to the birth of the claimant, his reputed father and his mother maintained their relationship in the society of which they were both members, and that they brought up the claimant as their child and acknowledged publicly his paternity.
    In 1879 the reputed father and mother contracted a lawful marriage in the State of Connecticut, 'in which state they appear to have been at that time domiciled. They subsequently and shortly thereafter removed to the State of New York, and that state became thereafter the domicile of the father, the mother and the child, and continued to be the domicile of the father and mother until their respective deaths, and has continued to be the •domicile of the claimant to the present time.
    In 1876 the legislature of the State of Connecticut passed an act which provided that, where the parents of children born before marriage should afterwards intermarry and recognize such •children as their own, such children should inherit with their other children under the statute of distribution, and should be legitimate. And, in 1895, the legislature of New York passed an act, at which time the father, mother and child were'domiciled in the State of New York, which provided that all illegitimate children whose parents had theretofore intermarried, or should thereafter intermarry, should thereby become legitimatized and should be considered legitimate for all purposes. This was .amended, in 1899, by providing that an illegitimate child whose parents had theretofore intermarried, or should thereafter inter-many, should thereby become legitimatized and should become legitimate for all purposes, and entitled to all the rights and privileges of a legitimate child.

      Mr. Frederick F. Guild, for the complainant.

      Mr. Alfred S. Skinner, for the claimant.

      Mr. Henry H. Dawson, for the defendant Baldwin, executor.

      Mr. Charles G. Titsworth, for Mrs. Taylor and other defendants.
   Howell, V. C.

The doctrine of gifts by implication has received some attention in this court. In McCoury v. Leek, 14 N. J. Eq. (1 McCart.) 71 (1861), it was claimed that a wife took an estate for life in real estate by implication, and concerning the insistment Chancellor Green says: “All estates by implication are founded upon the supposed intent of the testator, and, where implications are allowed, they must be such as are necessary (or at least highly probable), and not mere possible implications. ‘In construing a will, conjecture must not be taken for implication, but necessary implication means not natural necessity, but so strong a probability of intention that an intention contrary to that which is imputed to the testator cannot be supposed/ ” Citing Coryton v. Helyar, 2 Coxe 340, and Wilkinson v. Adam, 1 V. & B. 466.

In the same year, and before the same distinguished judge, arose the case of Heater v. Van Auken, 14 N. J. Eq. (1 McCart.) 159 (1861), in which the doctrine relating to gifts by implication was applied to a case where an illegitimate child made claim to a gift by necessary implication. However, it there appeared that the testator did not intend to include illegitimate children, and the operation of the rule was not permitted in favor of the illegitimate.

These two cases refer to Wilkinson v. Adam, 1 V. & B. 422 (1812); affirmed, 12 Pri. 470 (H. L.). This is a leading case in relation to the application of the doctrine to bequests in favor of illegitimate children. There the testator, who was married and had no legitimate children, made a devise to the children which he might have by Ann Lewis, who should be living at his decease. It appeared, by extrinsic evidence, that these children had acquired the reputation of being the children of the testator by Ann Lewis before the date of the will, and two questions arose. One was whether extrinsic evidence was admissible to show the situation of the family and of these children at the time of the making of the will, and, also, whether, if there had been legitimate children, by the same mother, they could take together under the same description, and whether future illegitimate children could take under any description in the will.

Lord Eldon observes that this is the will of a man, married, his wife living at the time, having no legitimate children, but three infants sufficiently proved to be at that time his reputed children by Ann Lewis. The question is, whether those three children, who had gained the reputation of being the children of this testator, previously to the will, can take the property de-. vised by these words, being illegitimate, or whether the construction is not to be such children as he might have by Ann Lewis legally, in case the wife should die and he should marry Ann Lewis, and have legitimate children by her. Evidence was taken with a view to establish, not the contents of the will, but, by something extrinsic, who were intended to be the devisees, the evidence establishing the fact that there were individuals, namely, these illegitimate children, who had gained by reputation the name and character of his children. The evidence was admitted and considered by the lord chancellor, and on the whole case he held that it was impossible that the testator could have meant'anything but illegitimate children. The legal principle upon which this decision rests is that of necessary implication.

The case of Wilkinson v. Adam has had a long history in the English courts. I shall cite only a few of the instances in which its doctrine was applied. It was applied in Bayley v. Snelham, 1 Sim. & St. (1882). There the testator had contracted a marriage which was void ab initio. There was one son of the marriage. The testator by his will gave the residue of his estate “unto and amongst ail and every the child and children or to an only child, as the case might be, of him, the said testator, and his wife, Jane.” Sir John Leach held that the child of this void marriage was entitled to the estate.

In Woodhouselee v. Dalrymple, 2 Mer. 419 (1817), there was a legacy to the children of the late C. K. who should be living at his, the testator’s, decease. C. K. was dead at the date of the will, leaving illegitimate children, of whom three were living at the date of the testator’s death, C. IT. not having had at the date of the will, or even after, any legitimate children. The three illegitimate children were held to be entitled, and it was likewise declared that it was proper to resort to evidence dehors the will for the purpose of ascertaining whether there were any who had acquired the reputation of children and that it was possible for illegitimate children to acquire that reputation.

The doctrine was assented to in Bagley v. Mollard, 1 Rus. & M. 581 (1830), by Sir John Leach, then master of the rolls, wherein he declared that wherever the general description of children in a will would include legitimate children, it could not be also extended to illegitimate children, although this latter proposition has been overruled.

In Laker v. Hordern, 1 C. D. 644 (1876); 45 L. J. Ch. 315, the testator by his will gave his property to his wife for her life, and after his death to his daughters in equal shares. Two years before he made his will he had married a woman by whom he had previously had three illegitimate daughters. He never had any other children. Evidence was admitted to show that the testator had always treated these daughters as his children, and that on giving instructions for his will he had said that he had a wife and three daughters. On a bill filed by the daughters against the next of kin it was held by Vice-Chancellor Bacon that the three daughters were entitled to the property.

In the meantime, however, there had arisen the case of Crook v. Hill, L. R. 6 Ch. 311 (1871); 40 L. J. Ch. 216. This case came before the lord justices on appeal from the decision of Vice-Chancellor Stuart. There the testator by his will described his daughter as Mary, the wife of John Crook, and spoke of him as her present husband. The daughter was the sister of the deceased wife of John Crook, and therefore not a lawful wife under the English law. There were children of Mary Crook, by John Crook, living at the date of the will, whom the testator recognized as grandchildren, and Mary Crook had no other children. It was held by Lord Justices J ames and Melish that in construing a will a gift to children might include a class of both legitimate and illegitimate children, provided you have not expressed in the will a sufficiently strong probability of intention that legitimate children alone shall take. In his opinion, Lord Justice James says: “The rules of law and of construction applicable to this ease are, first, that a gift to children means a gift to the lawful issue of a lawful marriage, unless (which is the second rule) there > be something which in express terms, or by what had been called ‘necessary implication,’ shows that the gift is to illegitimate children exclusively or to illegitimate children conjointly with another class of legitimate children. It is agreeable to us to find so clear a rule laid down as to what is meant by ‘necessary implication’ as that which we find in Lord Eldon’s judgment in the case of Wilkinson v. Adam, that is, that necessary implication in this class of cases, as in every class of cases on the construction of instruments, means, ‘not natural necessity, but so strong- a probability of intention that an intention contrary to that which is imputed to the testator cannot be supposed.’ ” These are the very words which are quoted by Chancellor Green in the case of McCoury v. Leek, supra. This case of Hill v. Crook went to the house of lords (L. R. 6 H. L. 265; 42 L. J. Ch. 702), and was there affirmed on opinions delivered by Lords Chelmsford, Colonsay and Cairns. The following is an extract from the opinion of Lord Cairns: “And what appears to me to be the pririciple which may fairly be extracted from the cases upon this subject is this, the term ‘children’ in a will, pñma facie, means legitimate children, and, if there is nothing more in the will, the circumstance that the person whose children are referred to has illegitimate children, will not entitle those illegitimate children to take. But there are two classes of cases in which that prima facie interpretation is departed from. One class of cases is, where it is impossible for the circumstances of the parties, that any legitimate children could take under the bequest. * * * The other class of eases is of this kind, where there is upon the face of the will itself, and upon a just and proper construction and interpretation of the words used in it, an expression of the intention of the testator to use the term ‘children/ not merely according to its prima facie meaning of legitimate children, but according to a meaning which will apply to and which will include illegitimate children.”

The principle was affirmed in the house of lords in Seale-Hayne v. Jodrell, A. C. 304. (1891); 61 L. J. Ch. 70. There the testator made specific bequests to certain persons to whom he was not related in any way, but whom he denominated in his will as his cousins. In the residuary clause he gave the remainder of his estate “to be equally divided amongst such of my relatives hereinbefore named as * * * shall become entitled to a vested transmissible interest” under the terms of the will. And as it was held that the word “relatives” included the persons who were not related to him, but who had been earlier in the will described by him as his cousins.

In Walker v. Lulyens, 2 Ch. 238 (1897); 66 L. J. Ch. 622, the testator gave the income of personal property to her nieces named, providing that if any of them should die leaving issue, such issue should take the share of the income which the parent would have taken. One of these named nieces went through the form of marriage with the husband of her deceased sister, by whom she had a daughter, Gertrude. In another part of the will Gertrude was spoken of as the daughter of the named niece. It was held that Gertrude, although illegitimate, was entitled to take the share of her mother. The indication of the opinion is that recently a very much broader view has been taken b3 the English courts with respect to bequests to illegitimate children. Mr. Justice Romer declares that the principle decided in Bagley v. Mollard, supra, was no longer the law, namely, that whenever the general description of children will include legitimate children, it cannot also be extended to illegitimate children. This enlarges the scope of the word “children” very materially.

These citations will illustrate the tendency of the English law in the direction of upholding bequests by implication to illegitimate children, and indicates to what extent the early cases in our own state above cited will go.

The eases cited on behalf of the claimant on this point are to the same effect, and show that the subject under discussion is viewed in the courts of the several states in much the same light in which it is viewed in England.

A well-considered case is Elliott v. Elliott, 117 Ind. 380 (1888); 10 Am. St. Rep. 54, in which a devise to “my children” was construed to mean the testator’s illegitimate children, to the exclusion of his legitimate children by a former wife, it being plain from the surrounding circumstances that such was his intention. In re Scholl’s Estate, 76 N. W. Rep. 616 (Wis.), it was held that any reasonable evidence that the testator intended to include illegitimates would be sufficient, and particularly where the class, in order to participate, must do so through the mother in the line of descent and not through the father.

When the facts in this case are considered, it is quite evident that the testator meant to make provision for the only child of his daughter who was living at the date of the will, of whom he had nny knowledge, or for a class of her children who might be born to her during her association with the society of which she was :a member, which membership for ought he knew would continue during the remainder of her life. He could have had in contemplation, under the circumstances disclosed by the testimony, nothing but illegitimate children, because at the time he made 'his will there was no probability that she would ever be the mother of children born in lawful wedlock. It must therefore 'be implied from the terms of the will and the circumstances surrounding its execution that the testator meant that the remainder of the share of his estate in question should go to the then living illegitimate child, or to any other illegitimate children that might be the fruit of her irregular relationships in the •society which she had joined.

The decision of this point in favor of the claimant has the effect of conferring upon him by necessary implication the title to the estate of which his mother during her lifetime received the income. This is in entire consonance with the statutory ^provisions of our own state relating to the devolution of the title to personal property in the case of illegitimates. By the statute of distribution now in force (P. L. 1898 p. 778), it is declared that if the mother of any illegitimate child or children shall die without leaving a husband’ surviving her, and leaving no lawful issue, or the issue of anjr, then the surplusage of her goods, chattels and personal estate shall be paid to her illegitimate child or children. And it is likewise in accord with what must undoubtedly have been the wish of the mother. And while these notions cannot govern the case, and we must'look to the will and the testator’s surroundings for his intention, it is quite clear that the trend of the law in our state is in the direction indicated.

Having decided upon the rights of the claimant in such a manner as to give him the estate in question, it is unnecessary to discuss the questions arising out of his statutory legitimation; yet it may be said that the facts in the case bring it within the • principle of the case of Dayton v. Adkinson, 45 N. J. Eq. (18 Stew.) 603, a case which depended upon legitimation under a Pennsylvania statute, and also within the principle of the case In re Peddie, 20 N. J. L. J. 279, which arose under the adoption laws of the State of Connecticut.

The result is that there must be a decree awarding the property in question to the claimant.