author: Pee Curiam.

text:
    In the matter of the estate of F. Augustus Heinze, deceased.
    [Decided February 2d, 1923.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Griffin, who filed the following opinion:

      “Mr. Wall, as substitutionary administrator (ancillary) of the estate of F. Augustus Heinze, deceased, filed his petition, report and account, asking that the account be passed and he be discharged. Plis petition is not filed under section 146, Orphans Court act (3 Comp. Stat. p. 3868), which applies to a discharge prior to the termination of the trust.
    “In the petition it is set forth under the caption DO’. The names and addresses of all persons interested in said accounting are as follows:

      Claimants.

    Union Bank of Brooklyn, c/o Joseph G. Deane, New York City. (filed March 15, 1920) $76,832.91 with int.
    United Copper Co., 61 Newark St., Hoboken, N. J. (filed December 22, 1916, with Arthur P. Heinze, administrator) 250,000.00
    United Copper Co., 51 Newark St., Hoboken, N. J. (filed December 22, 1916, with Arthur P. Heinze, administrator) 200,000.00
    Calvin O. Geer, East Orange, N. J. (salary filed June 21, 1918 ) 250.00
    Assets Development Co., ■ Englewood, N. J.
    Assets Development Co., Englewood, N. J. (filed July 22, 1918) 2,500.00 with int.
    Luther Martin, Jr., Receiver United Copper Co., c/o Geo. H. Hendrickson, 75 Montgomery St., Jersey City. (filed July 22, 1918) (filed July 22, 1918) 8,000.00 600,600.00
    George D. Hendrickson and Luther Martin, Jr., Receivers, United Copper Co., 75 Montgomery St., Jersey City. .(filed August 20; 1918) 483,923.05
    $1,621,505.96

      “To this account and report exceptions were filed by Mr. Eullerton, as domiciliary administrator, Assets Development Companjq United Copper Company, and, since the petition was filed, by the Western Development Company, who filed its claim with Mr. Wall since his petition was filed.
    “On the day set for the hearing the Assets Development Company filed supplementary exceptions dealing with the situation which arose after its original exceptions had been •filed, viz., the setting aside of the judgment which will be hereafter referred to.
    “The exceptions- of all the parties, except Mr. Fullerton’s, are substantially addressed to the question of jurisdiction, the point being that 'no special reason appears for interfering, with the ordinary jurisdiction of the orphans court.’
    “I quite disagree, with the views of these exceptants. The history of the litigation in this estate, and the things- to be accomplished to make an end of it, present an appropriate case to be heard and determined in thisi court. Filley v. Van Dyke, 74 N. J. Eq. 219; reversed, 75 N. J. Eq. 571; Wykoff v. O’Neill, 71 N. J. Eq. 681.

    “The exceptions of Mr. Fullerton, among other things, goes to the point that none of the claimants above-named are bona fide creditors of the State of New Jersey, and, therefore, their several claims should be rejected, and the account passed, to the end that the exceptant might take and receive the assets and administer them in the State of New York.
    “In the absence of the judgment of the Assets Development Company on the claim of Geer for two thousand five hundred dollars ($2,500), with interest, assigned by Geer to it, it seems perfectly plain that the presenting of these claims should not defeat the passing of the account, and on proper application to direct the substitutionary administrator to pay or turn over to the domiciliary administrator assets in his hands or claims to assets in this state, in view of the opinion of this court in Wall, Substitutionary Administrator, v. American Smelting and Refining Company, 90 N. J. Eq. 469, and the reasons given for affirmance by the court of errors and appeals in the ppinion by Mr. Justice Kalisch, reported in 91 N. J. Eq. 131. The only assets which can be said to be in this State are the royalties payable under the Silver King agreement, referred to in said opinions. The other property, consisting of stocks and bonds which, with said agreement, were pledged with the American Smelting and Refining Company to secure a debt of the deceased, did not have their siti in this state. T'he bill in the suit in which the above opinions were filed and decrees in accordance with said opinions were entered, sought to establish the right of the accountant to the royalties • after the pledgee was paid, as well as the title to the other properties above referred to, all. of the claims above refe: red to, excepting that of the Union Bank of Brooklyn, were dealt with in the case, and Mr. Justice Kalisch in conclusion said:
    “ ‘It cannot successfully escape notice that at the time of decedent’s death and of the appointment of an administrator in this state there were no bona fide New Jersey creditors and that the artificial process which has been resorted to for the creation of New Jersey creditors fails of its purpose.
    “ ‘Eor the reason that there were no bona fide New Jersey creditors the decree below will be affirmed.’
    “In the face of this judicial determination I must hold that the claimants under the claims above passed upon were not bona fide New Jersey creditors; and as to the claim of the Union bank, its claim, which was filed March 15th, 1920, after the decision of the court of errors and appeals, and therefore was not considered, should not be allowed, because the bank is not a New Jersey creditor.
    “This decision went to the very root of the case, and in effect held that the appointment of an administrator in this state was wholly unnecessary and improvident. This, if rendered in' the suit originating in the orphans court, could only have resulted in vacating the appointment and thus ending all litigation in this state.
    “A circumstance, however, has arisen since the above was decided, which leads me to pause in carrying into effect this conclusion as to the claim of the Assets Development Company (on the claim assigned by Geer) for two thousand five hundred dollars ($2,500), with interest.
    On January 31st, 1920, the Assets Development Company (after the decision of our court of last resort had been announced) began suit in the Hudson circuit court against Mr. Wall as substitutionary administrator upon the note of ten thousand dollars ($10,000) upon which it is claimed there was due two thousand five hundred dollars ($2,500), with interest, being the claim (assigned by Geer) in that amount above referred to. The defendant pleaded, omitting, however, to plead the decree of the orphans court barring creditors, and on a trial of the cause a verdict was rendered on May 4th, 1920, in favor of the plaintiff and against the defendant for six thousand sixty dollars and eighty-three cents ($6,060.83) and costs, and' judgment was accordingly entered.
    “Thereafter such proceedings were had in said cause, that on May 13th, 1921, said court set aside the judgment, gave leave to the defendant to amend by setting up the decree barring creditors, limiting the retrial to the issue framed on the amendment.
    “Upon the issue thus framed, without going into details as • to the formal' procedure, the court entered judgment on June 6th, 1921, in -favor of the defendant and against the plaintiff. Thereupon the plaintiff, on June 6th, 1921, appealed to the court of errors and appeals, which appeal is now pending.
    “Shortly after the rule to show cause was entered why the judgment should not be set aside, the plaintiff took out execution on February 3d, 1921, and served a copy of .the same on the American Smelting and Refining Company.
    “The American Smelting and Refining Company opposes the application of Mr. Wall at this time, because if the court of last resort should reverse the circuit court, there would be a judgment which it might be compelled to pay and for which it might not receive credit at the suit of the domiciliary administrator—thus, as an innocent stakeholder, it might be compelled to pay twice.

      “Without passing on this question, this fear of the American Smelting and Refining Company is not fanciful, as by reason of its dual residence, it is liable to be sued in both states.
    “In this situation, ordinarily no decision would be herein rendered prior to the decision of the appeal in the case at law. If, however, this course were pursued, further and unnecessary delay in disposing of this controversy would follow. The law appeal may now be argued at the November term, 1921, and decided on or before the March term, 1922. Immediately thereafter an appeal might be taken from the decision of this court in this cause, which, ordinarily, would be arguable at the June term, 1922, and be decided on or before the November term, 1922. But in this case the court should strenuously endeavor to end this long-drawn out litigation, which has been, denounced by the court of last resort. To that end I propose to decide the case as far as it may now be disposed of, so that an appeal may be taken from the decree of this court at once, and both cases argued at the November term, 1921. I will, therefore, advise a decree sustaining the exceptions of the domiciliary administrator to all the claims above set forth excepting that of the Assets Development Company for $2,500, with interest, which was the subject of the suit at law; and as to this claim I will withhold advising a decree until its status is settled by the court of errors and appeals.
    “The Western Development Company, from statements made at the hearing, filed a claim with Mr. Wall after his application for discharge was filed, and it was allowed to file exceptions. Near the close of the testimony it appeared that it is a corporation of Arizona. As its claim is not reported by the administrator, and there is no prayer in his petition for discharge with reference thereto, I have not considered nor passed upon the claim in this proceeding.
    “I have not deemed it necessary to encumber this memorandum with the many recitals of facts which plainly appear in the above-cited opinions and in the record of the case in which the opinions were filed, as such records are in evidence, and reference may be made thereto.”

      Messrs. McCarter & English, for the respondents.

      Messrs. Wall, Haight, Carey & Hartpence, and Messrs. Collins .<£ Corbin, for the appellants:
   Pee Curiam.

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

For affirmance — The Chibe-Justice, Swavze, TrenCHARD;, PARKER, BERGEN, MlNTURN, BLACK, KATZENBACH, Williams, Gardner, Van Buskirk—11.

For reversal—-None.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Frederick H. Man, respondent, v. Charles A. Vockroth et ux., appellants.
    [Decided February 2d, 1923.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Buchanan, who filed the following opinion:
    “Complainant and defendants are respectively the owners of adjoining lands at Budd’s Lake, Morris count}', New Jersey. Both parties derive title from William Man, who purchased a large tract about 1875 and erected thereon a dwelling-house for himself and his family, with stable, barns, carriage-house and other buildings such as would ordinarily be attached to the country residence of a gentleman of means. The house (and other buildings) stood back several hundred feetfrom the public highway (and at an elevation therefrom), and access to and from the highway was by means of a driveway or private road running down to the highway, on the westerly side of the house.
    “In 1885 complainant acquired from, Wm. Man (Ms brother) a part of the latter’s land, easterly from the latter’s residence, and also built a residence. At the same time another private road or drive was constructed, from the William Man house, running down on the easterly side thereof to the public road. This was built and used by the two brothers. It was about twice as long as the original drive, but an easier grade and better surfaced, and came up between the two houses. The fee in the entire, roadbed belonged to William Man, complainant’s line abutting it for several hundred feet, and a spur being built to it from complainant’s dwelling-house.
    “After the death of William Man, his widow and executrix (with power of sale) conveyed in 1907 to complainant additional parcels of William Man’s lands, including (as the ‘second tract’ in the conveyances) a tract lying between the lands originally conveyed by William Man to complainant and a north and south line some two hundred feet east of the William Man dwelling-house. This tract included the greater part of the jointly used private roadway (which will hereafter be called ‘complainant’s private road’) and the conveyances contained a reservation of the use of this road in the following language:
    “ ‘But there is reserved, however, a right of way over said private road through ■ the second tract to and from the dwelling-house now or late of said William Man, for use hy the owner or owners of said house upon payments of one-half of the cost of keeping so much of said private road as is within the boundaries of the said second tract in repair, and any right of way heretofore claimed'or exercised over any of the land of said party of the second part or over said lane is hereby released and extinguished.’

      “About a year later, in 1908, the William Man residence and remaining lands were conveyed by the widow and executrix to a Mr. Beecher, and thereafter, by mesne conveyances, were acquired by the defendants in 1920. Defendants are utilizing their place for boarding-house or hotel purposes, and have added to their facilities by erecting last year an additional building, housing some fifty or more, people. Concededty, the complainant’s private road has been much used by defendants’ patrons or guests, and by public conveyances and tradesmen because of the operation of the place as a hotel or boarding-house. Without at this time going into greater detail it is obvious that the use of this roadway in connection with defendants’ premises is much greater in extent, and at least somewhat different in character than its use while the premises were occupied as a country residence.
    “Complainant admits that defendants have a right, as owners of the William Man dwelling-house and lands, to use the private roadway, but contends that that right is limited under the terms of the reservation clauses in the deeds (by which the right was created); that defendants are exceeding their rights and casting additional burden upon the servient tenement; and ask an injunction or decree restraining such excessive use or abuse of the roadway.
    “Defendants contend that their right of way, under the language of the deeds, is unlimited and unrestricted and appurtenant to their lands as a whole. They also set up in their answer allegations intended to show estoppel and acquiescence by way of defence against the suit; and other facts apparently intended to show that they have the unlimited right of way as a sort of way by necessity, claiming that the old original roadway on the westerly side of their house is unsafe and impassable, and that aside from the complainant’s private road there is no other safe way or ingress or egress to and from their buildings from and to the public road.
    “The first question -to be determined arises out of the challenge by defendants of the jurisdiction of this court. Motion is made, pursuant to notice in the answer, to dismiss the bill on the ground that it discloses no equity; that complainant has an adequate remedy at law; and that complainant is attempting to establish a legal title which can only be done by law. In so far as the motion is rested upon the first two grounds, it is immediately apparent that it must fail. The case made by the bill is one calling peculiarly for equitable relief; such remedy as complainant could obtain by procedings at law would be totally inadequate, as has been repeatedly adjudged. The only ■ question needing consideration is whether or not there is such a dispute as to the existence of a legal right as is cognizable only in a court of law. If so, then this court could not undertake to determine that issue, but, following the customary practice, would retain the bill for a sufficient time to afford opportunity for that issue to be determined by a suit at law.
    "It is by no means true that in every case where there is a dispute as to a legal right equity is without jurisdiction. The well-known classification of cases where equity has jurisdiction' to protect and enforce private legal rights in real estate set forth by the court of errors and appeals in Hart v. Leonard, 42 N. J. Eq. 416, instances under the third heading therein, ‘Cases where the legal right, though formally disputed, is yet clear on facts which are not denied and legal rules which are, well settled, and the object of the bill is to ascertain the extent of the right and enforce or protect it in a manner not attainable by legal procedure/ It seems to me that the present case falls within that category.
    “Complainant’s ownership of the lands on which the private roadway is constructed is admitted. His right as such owner to be free from trespass thereon by others except to the extent to which legal rights have been acquired by others is also clear. Admittedly, defendants have a legal easement upon the roadway in question; but there is no dispute but that such right was acquired by and rests upon the reservation in the deed to complainant from the prior owner of the roadway and of defendants’ premises. The only question in dispute (omitting from consideration for the present the allegations of estoppel, acquiescence and ‘way of necessity’) is the extent of the right of complainant; or, to put it conversely, the extent of .defendants’ right whereby complainant’s right is limited and cut down. This question of the extent of the right is as to the right itself, as distinguished from the lands covered by the right; there is here involved no issue as to the physical location or boundaries of the right, as there was in Imperial Realty Co. v. West Jersey & S. R. R. Co., 79 N. J. Eq. 168. There are no facts in dispute on this issue and the whole question of the extent of the legal rights of the respective parties rests upon the construction of the aforesaid clauses in the deeds and is determinable on ‘legal rules which are well settled.’

      “Johnson v. Jaqui, 25 N. J. Eq. 410, affirmed by the court of errors and appeals, 27 N. J. Eq. 526, and cited by that court in Hart v. Leonard, supra, as illustrative of this class of cases, seems quite analogous. There, as here, complainant as the owner of the servient tenement sought tO' restrain defendant, the owner of the dominant tenement, from trespass or injury to complainant’s lands in and about defendant’s attempted exercise of his easement or right. The question was as to the extent of that right and depended upon the construction of the deed or instrument by which defendant acquired the right. This court construed the instrument, delimited defendant’s right in accordance with such construction and restrained the attempted exercise of rights in excess thereof, and was sustained upon appeal. ' The question of jurisdiction seems not to have been raised; at any rate it is not mentioned in either opinion, but the question of jurisdiction was, of course, the sole question before the court of errors and appeals in its reference to this case in Hart v. Leonard.

    “Another analogous case is Taylor v. Public Service Co., 75 N. J. Eq. 37, where this court determined the extent of defendant’s right or easement across complainant’s lands and restrained a user in excess thereof, and was affirmed upon appeal. S. C., 78 N. J. Eq. 300. Northeastern Telephone, &c., Co. v. Hepburn, 73 N. J. Eq. 657, while not a strictly similar case, is nevertheless also an example of the exercise of jurisdiction in cases of this class.
    "Do any of the other defences remove the case from the jurisdiction of this court ? Certainly the defences of acquiescence and estoppel do not, for they áre equitable defences. Cf. Johnston v. Hyde, 33 N. J. Eq. 632 (at pp. 640, 642, 643); Gawtry v. Leland, 40 N. J. Eq. 323 (which is also in point on the prior question).
    "As to the • so-called defence of ‘way by necessity,5 this is merely colorable. No real defence is set up, either legal or equitable—either under the allegations of.the answer or the facts as proved at the hearing. The answer alleges that the private road in question ‘has always been used by these defendants as the method of travel between the public highway and the premises of these defendants and there is no other safe means of getting from said public highway to the said premises,5 and goes on to say that there is another road from the highway on to the premises, but it was never used by William Man or his successors in title because it is impassable and unsafe.
    “These allegations, if true, disclose no situation of way by necessity. Where an owner of lands conveys to another an interior tract of those lands, abutting on no public way and having- no appurtenant right of way or other- means of access to such public way without trespass upon the lands of another, a right of way by necessity arises; but that is very different from the case at bar. Coneededly, defendants5 lands abut for several hundred feet upon the public highway. Access from defendants5 buildings to the highway can be had over a road or roads constructed entirely on defendants5 lands and entering the highway at any point along the abutting line, without trespassing on the lands of others or requiring any right to cross the lands of complainant or any one else. All that need be done is to construct a roadway—a mere’ question of trouble and expense. But the alleged' defence is even less substantial than that, for by undoubted and undisputed proof the roadway on the westerly side of defendants5 buildings was used for some nine j^ears before the new road was built, and during that time was the only road in existence. I am perfectly satisfied from the evidence that it has been used continuously ever since, even by defendants themselves, until it was boarded up by defendants last year, though undoubtedly its use was greatly lessened after the new road was built, because of the greater ease and convenience of the new road, and doubtless it has been suffered to fall into disrepair. The uncontradicted testimony, however, shows that by slight changes in location and grade, and resurfacing, at a total expense of only $350, it could be made practically the equal of the newer road. Eor defendant to contend that he has an unlimited easement arising by necessity! over a neighbor’s land simply because otherwise he would have to spend $350 on his own land is of course absurd and absolutely untenable either at law or in equity.
    “I have no doubt,.therefore, as to the jurisdiction of this court to determine the entire case on the merits, and defendants’ motion is of course denied.
    “Turning now to the merits, and first, as to the respective rights of the parties in and to the roadway in question, as arising out of the deeds. The right is created by a reservation in the deed conveying the fee in the roadway, whereby there was reserved out of the complete fee which would otherwise have been conveyed, ‘a, right of way over the said private road * * * to and from the dwelling-house now or late of said William Man, for use by the owner or owners of the said house,’ &c. If there should be deemed to be any ambiguity or uncertainty about the reservation it must needs be resolved in favor of complainant’s contention, for, in the first place, it is to be construed most favorably to the grantee, and, in'the second place, construed in the light of the accompanying circumstances, which were that the two properties were and had for many years been residential properties only —summer country homes of the two brothers respectively.
    “I am unable to see, however, that there is any necessity for resort to be had to other than the plain language of the reservation itself, to ascertain the character and extent of the servitude thereby created. The right of way is expressly described or defined as being for passage over the private road to and from—not the lands remaining to the grantor, but a particular portion thereof—the particular dwelling-house of William Man thereon erected. Defendants contend that this is mere description for the purpose of physical identification of the road subject to easement, and points out that substantially similar wording is used earlier in the deed in the description of the boundaries of the lands conveyed: 'Along the southeasterly line of the private road leading from said public road to the house now or late of the said William Man, as the same winds or turns.’ &c.
    ''This fact, however, so far from supporting defendants’ contention, affords additional refutation thereof. Having in the earlier part of the deed fully described and identified the private road, and there being only one private road mentioned in the deed, there was no occasion in the. reservation of the right of way to identify the road in question other than the 'said private road.’ The additional words in the reservation 'to and from the dwelling-house now or late of the said William Man’ were not necessary to identify the road in question, and were not used for any such purpose. If that had been the purpose, the words would have been Ho the dwelling-house,’ &c., just as in the prior description; not Ho and from/ which are words in nowise apt or customary to express a description of the location of a road, but, on the contrary, are apt and customary to express the description of the use of a road—the character of an easement.
    ''The words 'to and from the dwelling-house,’ &c., being then .descriptive of the right and not .of the location of the right, it seems so clear as to admit of no argument, that right is limited and not general. The right is not to and from the lands generally—the reservation does not say 'to and from lands remaining to the heirs and devisees of William Man,’ but 'to and from the dwelling-house’ of William Man, and 'for use by the owner or owners of said (i. e., dwelling) house.’ It is not to be used by the owners of any other portions which might be sold off from the somewhat extensive grounds still left surrounding the dwelling-house, but only by the owners of the dwelling-house.
    “It may be indeed that the right is not limited to the dwelling-house itself as a terminus, that it is appurtenant to all parts of the entire tract on which the dwelling-house stands, so1 long as they remain parts thereof (that question needs not to be decided) but it is certainly obvious that it is limited to dwelling-house purposes. Defendants cite Bangs v. Parker, 71 Me. 458, where a way was reserved To the barn standing on the * * * dwelling-house lot/ the barn in fact having been removed prior to the deed. It was held that the way was a way to a dwelling-house lot, but for such purposes as a way to a barn appurtenant to a dwelling-house would properly or customarily be used. So, here, whether the way is to the dwelling-house, or to the dwelling-house lot, it is for such purposes as a way to a dwelling-house is proper and customary to be used, and certainly excluded usage for hotel and boarding-house purposes, whether it be the William Man dwelling-house that is used as such hotel or boarding-house, or other separate and.newly-erected buildings, or (as the admitted fact is) both.
    “The user is only appurtenant to the particular dwelling-house (or, perhaps, one substituted in its place), and it is. a user only of that kind, nature and extent which is suitable, customary and proper for a right of way for dwelling-house purposes. It is expressly Tor use by the owner or owners of said house/ not for use by tenants or occupants of other parts of the land^, or patrons of a hotel or boarding-house.
    “If this easement extends to any other dwelling-hoiise than the one expressly mentioned, then it extends to any number of such dwelling-houses erected on defendants’ lands; and if it extends to one boarding-house or hotel building, it extends to any number of such buildings on those lands. The room is ample to erect a hundred or more of them, increasing the servitude to use by five thousand patrons with the addition of their accompanying conveyances, baggage transfer, tradesmen, &c. Doubtless defendants’ counsel would not have the hardihood, to contend that defendants have such a right, yet it is logically and legally an inevitable conclusion from the 'claim asserted by them.
    “The defendants’ right is characterized and limited expressly as I have indicated, by the terms of the instrument creating it, apd they have no right to extend it or add to the burden of the servient tenement against the will of the owner of the latter.
    “Defendants contend that complainant has estopped himself from asserting his rights. The proofs, however, fall far short of establishing any such situation. They show, at most, that complainant stood by and said or did nothing while defendants erected their' hotel building, until it was practically completed. Por one thing, they fail to show that complainant actually knew or can be charged with knowledge or notice of the erecting of the building until it was nearly completed (it was erected during the period of the year when he did not occupy his house), but aside from that, complainant had no right to prevent defendants from erecting or maintaining a boarding-house or hotel, or any number of them, on their own. premises. His right was that his roadway should not be used by the patrons of the hotel, but it is not necessary in anywise that they should use it. There was certainly nothing to indicate to him, nor is there any evidence in this case to show, that defendants would not have erected the boarding-house if they had known that complainant would refuse to permit his roadway to be used for the purposes thereof. Defendants, as has been said, have another roadway on their own lands, and have land enough to construct several more roadways.
    “Neither does defendants’, claim of acquiescence rest upon any more substantial grounds. This defence is a quasiestoppel. Cf. 2 Pom. Eq. Jur. § 817. Taking the testimony at its strongest for defendants, it would appear that defendants’ premises had changed ownership every year or two between the original, sale to Beecher and the acquisition by defendants, and that two or three of the owners had during some periods made an excess user of the roadway. One of the owners was a physician who had attempted to conduct a sort of sanitarium. There was testimony that at one time (perhaps for a week) there had been twelve or thirteen people at the place. It did not appear, however, that all these people used the driveway, or that there was anything like the use that was made, last year, nor that complainant knew of the use that was actually made. It may be fair to assume that he knew that to some small extent an excess use was had, but assuming that to be the case, I can see no reason why he should be penalized for his failure to rush into court the moment any trivial violation of his rights occurred. A court of equity is certainly not going to foment friction and discord between neighbors and encourage litigation by adopting any such rule as that. Complainant testifies that on two or three occasions before bringing his suit he made objection, and, as between his testimony and that of the defendants (which was frequently evasive and unsatisfactory), I believe the former.
    “Nothing more need be added to what I have already said as to the claim of way by necessity.
    “Defendants have failed to establish any facts sufficient to disentitle complainant to the equitable relief he seeks, and the proofs and admissions show beyond peradventure that he is entirely justified in asking that defendants be restrained in the future from the acts which have been done by them and which they purpose to continue. Their barricade of the old roadway, and the placing of signs at the entrance of complainant’s private road indicating that it was a public road to their hotel or boarding-house; the removal of complainant’s signs to the effect that it was a private roadway; their advice to their tenants or guests to use the private roadway notwithstanding complainant’s remonstrances and objection, all show much more than a passive or implied responsibility for the invasion of complainant’s rights by persons other than themselves, and make the acts of those persons their own;, and the restraint will be made broad enough to meet the situation arising from these circumstances. The form of decree may be settled on notice.”

      Mr. G. Bartram Woodruff, for the respondent.

      Messrs. Wall, Haight, Carey, .& Hartpence, for the appellants.
   Per Curiam.

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

For affirmance■—Ti-ib Ci-iiee-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisoh, Black, Williams, Van Buskirk—10.

For reversal—Katzenbaoh—-1.


text:
    Louise Shmidheiser et al., v. States Avenue Construction Company et al.
    [Decided February 7th, 1923.]
    On appeal from a decree in chancery advised by Vice-Chancellor Learning, dismissing complainant’s bill, who filed the following opinion:
    “I think it unnecessary to give specific consideration to any feature of this suit other than the single undisputed fact that for over twenty-five years the locus in quo has been occupied by stores facing on the boardwalk and extending to the street line of States avenue.
    “Defendants have in no sense abandoned the use of these lots for the purposes for which they have been used during that long period of time. The recent demolition of the buildings was wholly for the purpose of reconstruction and can no more be treated as an abandonment of the right to maintain similar store buildings upon the lots than could any ordinary repairs or improvements such as have been made from time to time in the past. The tearing down was but a part of the process of reconstruction and in no sense an abandonment of the use of the lots for stores flush with the avenue. Even though it be assumed that in 1899 the right of enforcement of the restrictive covenants may have existed, save for the delay of interested parties in enforcing such right, I am yet unable to conclude that the right of enforcement can be said to have been revived by a rebuilding operation which in no W'ay modifies the use to which the lots are to be thereby devoted, even though the rebuilding operations may include tearing down the old buildings and the substitution of new buildings in their place similarly located and for a similar use. Nor does it seem material whether the adjudication in 1899 was based upon laches or estoppel. The rights of the successors in title of those complainants, as such successors in title, can rise no higher than were the. rights of those complainants at that time, and the rights of the successors in title of those defendants, as such successors in title, can be no less than were the rights of those defendants at that time, and unless there has been a real cessation of the use then complained of or an essentially new use the former decree would appear to be final in its effect as between the respective successors in title of the parties to that decree.
    “No suggestion of adverse possession has been made in the argument; but I find it difficult to conclude that twenty-five years continuous user by defendants under claim of right for purposes clearly adverse to the existence of rights of the nature of those here asserted is not destructive of such rights.
    “A decree will be advised denying the restraint sought.”

      Mr. Normcm Grey, for the appellants.

      Mr. Clarence L. Cole, for the respondents.
   Per Curiam.

Our consideration of this case satisfies us that the decree appealed from should be affirmed, and we would he content to affirm upon the opinion of Vice-Chancellor Learning, except for the fact that a ground of reversal that was not discussed in the opinion has been urged before us.

The purpose of the bill is to restrain the defendants from erecting buildings upon certain lands owned by them in Atlantic City in alleged violation of certain neighborhood restrictions, which, it is' claimed, applied to this property.

The whole tract is two hundred and thirty-one and sixty-four hundredths feet in depth. The buildings, the erection of which was sought to be restrained, cover only ninety-six and sixty-four hundredths. No building has been commenced on the remaining one hundred and thirty-five feet, nor is there any suggestion that the erection of a building thereon is contemplated. The ground of reversal referred to is that the decree is erroneous because the complainants were entitled to the restraint prayed for, so far as this part of the tract is concerned. The contention is without merit. As there is no threatened violation of the restrictive covenant, upon this part of the tract, no ground of relief is shown with relation thereto; for it is only in cases where a violation of such a covenant is presently threatened that a court of equity will interfere.

The decree under review will be affirmed.

For affirmance — Ti-ib Chibe-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Katzenbach, Williams, Van Buskirk—11.

For reversal—None.


text:
    Villa Site Company of Howarth, New Jersey, et al., respondents, v. Henry C. Copeland, appellant.
    [Decided January 19th, 1923.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis, who filed the following opinion:
    “The main issues in the litigation involved in this suit were disposed of by the final decree settled by the late Vice-Chancellor Stevens, who had heard the case, but who died before a completed draft of the decree could be submitted to him for signature, and which was, thereupon, on December 30th, 1919, signed by the chancellor, and subsequently affirmed by the court of errors and appeals. In this decree it is stated that The question of counsel fees is reserved until sale/
    “By the decree certain lands and premises therein specified were directed to be sold by Milton Demarest and Charles C. Pilgrim, Esquires, special masters of this court. This sale has been accomplished, and the matter is now before me on application to confirm the sale, to determine the precedence of certain liens, and for counsel fees and allowances.
    “As I intimated at the time of the hearing, I am of the opinion that the sale should be confirmed; and there is no doubt in my mind that the property should be taken by the purchasers, subject of the 1920 taxes. I do not think the Kimmey judgment should take precedence over the costs of the litigation and counsel fees, because the judgment was entered long after the litigation had been started. I also think that Copeland should be required to pay over to the receiver of the Villa Site Company the amount received by him on the sales of lands conveyed to him by that company in excess of moneys paid out on account of those lands under the terms of the trust agreement. This is in accordance with the opinions of Vice-Chancellor Stevens and of the court of errors and appeals. Costs and counsel fees will be allowed, to be paid by the defendant, Copeland.

      “1 will advise a decree in accordance with these views.”

      Mr. Wendell J. Wright, Messrs. Osborne & Astley and Mr. Charles C. Pilgrim, for the respondents.

      Mr. Julian C. Harrison, for the appellant.
   Pee Curiam.

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

For affirmance — The Chiee-Justice, Swayze, Trenci-iard, Parker, Bergen, Minturn, Black, KLatzenbach, Heppeni-ibimer, Williams, Ackerson—11.

For reversal—’None.


text:
    William Workman, respondent, v. Clarence A. Eyler et al., appellants.
    [Decided February 1st, 1923.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, who filed the following opin- ■ ion:

      “The decisions of our court of errors and appeals in Lawson v. Nicholson, 52 N. J. Eq. 821; Steadman v. Foster, 83 N. J. Eq. 641, and Dorman v. West Jersey Title and Guar. Co., 105 Atl. Rep. 195, are clearly conclusive to the effect that when a mortgagee places his bond and mortgage in the hands of an attorney-at-law for the purpose of enabling the attorney to collect the interest at the recurring interest-paying periods, such act and the subsequent collection of the interest by the attorney neither clothe the attorney with authority to receive the principal nor cancel the securities; nor do such acts create an estoppel against the mortgagee in favor of a mortgágor who makes payment of the principal to such attorney.
    “In Lawson v. Nicholson, supra, the securities had come to the possession of the attorney without the sanction of the mortgagee; but touching that circumstance.the opinion of the appellate court proceeds as follows: ‘Therefore, in the present case, if these securities - had been confided' to this man Leslie (the collecting attorney) in such form that, without any misconduct on his part, it would have been in his power to manifest his possession of them, such unconditioned fact would have offered not the least ground for the inference of an agency to cancel them on the -receipt of the money due.’ In Steadman v. Foster, mpra, the payment to the attorney, who had been theretofore acting for the mortgagee in the collection of the interest payments on the mortgage, was for only a portion of the principal. It was there held that an agency of an attorney to collect interest for the mortgagee does not include an agency to receive all or any part of the principal. In the opinion of the appellate court the rule is stated as follows: ‘The practice of permitting attorneys-at-law to receive and give acquittances for interest payments is common; but the habitual payment of interest to an attomey-at-law, who in turn remits it to the mortgagee, does not establish his authority to receive the principal or any part thereof, especially when he has not the custody of the papers. 27 Cyc. 1389; Cox v. Cutter, 28 N. J. Eq. 13.
      Nor does it amount to a holding out of the attorney as agent so as to create any estoppel against the mortgagee. Lawson v. Nicholson, 52 N. J. Eq. 821. In Dorman v. West Jersey Title and Guar. Co. (Court of Errors and Appeals), 105 Atl. Rep. 195, the two cases above referred to are cited with approval, and in adopting the substance of the language above quoted from Steadman v. Foster, the reference there made to the attorney not having possession'of the securities is omitted.
    “In all these cases it is held that the possession'of the securities by the attorney and the collection of the interest by him do not justify the inference of an agency to collect the principal or cancel the securities on receipt of the principal, and subject to that defined rule of evidence the inquiry is purely one of fact as to whether the evidence justifies a finding that the authority conferred upon the attorney included authority to receive the principal and cancel the securities.
    “In the present case the mortgagee has testified that he left the securities with the attorney, who 'placed the loan for him and authorized the attorney to collect' and remit the interest; that he at no time authorized the attorney to collect the principal; that the attorney promptly forwarded the interest to him at each interest period, less a charge of five per cent, for services, until the decease of the attorney, when he first learned that the principal of the mortgage had been paid to the attorney and that the mortgage had been canceled of record by the attorney some nine years before that time. A searching and exhaustive cross-examination of the mortgagee failed to unsettle this testimony to the effect above stated. A very natural suspicion existed in the mind of the attorney who cross-examined the mortgagee that the mortgagee’s persistent discrimination between authority to receive interest and authority to receive principal was wholly the product of his present interests, and it may not be inappropriate to say that the court has not been free from a similar suspicion; but obviously it is not the privilege of the court to refuse to accept the mortgagee’s sworn statements to the effect named in the absence of some circumstances affording adequate justification for that course. I am unable to find that justification! A mere suspicion is not adequate. Indeed the suspicion already referred to was measurably allajnd when the mortgagee stated that he had always supposed it was necessary for him to sign something when his mortgage was paid off.
    “The evidence disclosed that the mortgagee filed a claim against the estate of the deceased attorney before this suit for the reinstatement of the mortgage was brought. In Steadman v. Foster, supra, that is held to be no bar to a claim of this nature. The decree herein may require the assignment of that claim to defendant.
    “I will advise a decree reinstating the canceled securities.”

      Messrs. Bleakly & Stockwell, for the respondent.

      Messrs. Westcott .& Weaver, for the appellants.
   Per Curiam.

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

For affirmance — Ti-ie Ciiiee-Justice, Swayze, Teen-chard, Parker, Bergen, Minturn, Black, ICatzenbaci-i, White, Heppenheimer, Williams, Ackerson, Van Bus-kirk—13.

For reversal—Hone.


author: Pee Cueiam.

text:
    Joseph J. Claron, appellant, v. Ferdinand Thommessen, respondent.
    [Decided February 1st, 1923.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Ingersoll, who filed the following opinion:
    “Complainant filed a bill to quiet title to certain real estate in Atlantic City, New Jersey, alleging peaceable possession and alleging the title to be disputed by the defendant. The final hearing developed that the title is in the complainant; that on or about the 14th day of September, 1921, the defendant paid on account of the purchase of the premises the sum of one thousand dollars ($1,000) and received a receipt in the following -words;
    “ ‘September 4th, 1921. Received of Fred Thommessen, one thousand ($1,000) dollars, to bind the bargain of the Albany Arms Hotel and 183 feet on Albany avenue, by 105 feet in depth.
    Place is to be turned over complete with the exception of personal belongings, approximately $300 in value.
    Sales price, twenty-seven thousand dollars ($27,000) ; $10,000 cash, mortgage of $17,000 for three years. Commission to Foss, $5,000. Agreement to be drawn in the South Jersey Title Co.
    September Gth, at 11 p. m., and all adjustments to be made at date of settlement.
    Possession to be given the 17th, or before.
    J. J. Oraron.’
    “That no agreement was drawn at the time agreed upon and that the defendant failed to complete the contract, alleging that it had been agreed that he was to receive some personal property (consisting of wines, liquors, &c.) in addition to the real estate and that the complainant refused the delivery of the same; that thereafter the said agreement was proven by a party who was present at its execution and the same was recorded in the clerk’s office of Atlantic county.
    “Prior to the filing of this bill, the defendant brought suit in the supreme court against the defendant for the return of the said deposit and for damages for alleged misrepresentation.
    “The form of the bill removes it from the objection made in McClave et al. v. McGregor et al., 72 N. J. Eq. 218, but the facts found are almost identical with the wording of the bill in that cause and of the opinion therein.
    “Following the views expressed in that case and for the reasons therein stated, the bill must be dismissed. The counter-claim should also be dismissed or continued until the issue in the supreme court is determined.”

      Messrs. Bourgeois & Coulomb, for the appellant.

      Mr. Jolm C. Reed, for the respondent.
   Pee Cueiam.

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

■For affirmance — The Chief-Justice, Swayze, Tbeyciiaed, Beegeh, MIjSTTUEN, Kalisoh, Black, Katzeybaci-i, White, Williams, Gabdneb-—11.

For reversal—Rone.


text:
    Dorothy Ginsberg, respondent, v. Norton A. Wolters and Marguerite D. Wolters, appellants.
    [Decided January 19th, 1923.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Foster, who filed the following opinion:
    “This bill is filed to foreclose a third mortgage for $67,000 given by the defendant Norton A. Wolters to complainant as part payment for the purchase or exchange of an apartment-house property in Orange.
    “Defendants have filed an answer and counter-claim in which they allege that by the false and fraudulent representations of one Morris Gordon—the actual complainant and the real owner of the mortgaged premises, and by the concealment by him of material facts, and by artifice and deception practiced by him, and by the exercise of undue pressure and importunity, the defendant Wolters was induced to purchase or to trade his contingent interest in his father’s estate for the mortgaged premises, at the grossly excessive value of $300,000, and to execute the bond and mortgage in suit.
    “On the hearing, persistent efforts were made to show that Wolters, at and for a considerable time prior to this trans- ■ action, was under the influence of intoxicating liquors to such an extent that he was incapable of transacting business, and did not know or appreciate what he was doing in the purchase or exchange of this property. This contention was, however, abandoned on the argument; and in the course of the hearing it was admitted that complainant was a mere dummy for Gordon.

      “The controversy over the mortgage arises out of the following transactions:
    “The defendant Wolters is about forty years old, and up to 1918 he had been engaged for some years in the management of a wholesale produce business in Newark. About June or July, 1920, Wolters then not being in business, desired to obtain a loan of about $20,000 on his contingent interest in his father’s estate, and which interest is to become vested in him if 'he lives until 1927. This interest has been estimated to be worth from $100,000 to $150,000, and Wolters since the death of his father had been in receipt therefrom of a gross annual income of about $8,500. Among those to whom Wolters applied for this loan was Robert Stoutenburgh, an old friend, engaged in the brokerage business in Newiark, and Stoutenburgh, about July 10th, 1920, introduced Wolters to Gordon as one who might make him the loan. Gordon was unwilling to do so, but suggested he might be willing to make an advancement of some money to Wolters if Wolters cared to trade his contingent interest in the estate for the apartment-house property, which Gordon valued at $300,000, the property being encumbered by a building and loan association mortgage for $110,000, reduced at the time to about $103,000, and by a second mortgage for $40,900. It was at this first interview, which Wolters states occurred about July 15th, with no one present but himself and Gordon, and when Wolters claims he was intoxicated, that the alleged misrep-' resentations are said to have been made by Gordon, and when Gordon is said to have deceived and coerced Wolters into making the transaction, although Wolters claims the same misrepresentations were repeated by Gordon at subsequent interviews. Wolters, notwithstanding his drunken condition and his claim that he did not understand the nature or significance of what he was doing, distinctly remembers and testifies that Gordon then told him the apartment contained one hundred and sixteen rooms, renting at $20 each, and had ten garages, renting monthly at $15 each; that there was a contract to pay Eeist & Eeist, as rental agents, $1,000; that the apartment was renting for $30,000 a year, at the rate of $2,500 monthly; that he figured on the basis of the rental per room, and found the annual income might amount to $33,000; that Gordon stated that from October 1st, 1920, the annual rentals would amount to $40,000; that the cost of the upkeep would not exceed $8,000; that ninety per cent, of the tenants had consented to pay the increased rental; that the property had cost about $250,000; and that after he and Gordon had made some calculations from which he concluded the gross annual rental might amount to $43,000 after October 1st, 1920, and after Gordon had further represented' that with these increased rentals and the stated cost of maintenance and the payment of all fixed charges, there would be a net monthly income from the property for Wolters of at least $1,000, Wolters then concluded he would make the exchange of his interest in the estate for the property; and that later Wolters found that every statement and representation thus made by Gordon were false and fraudulent, and were known to be so by Gordon when he made them; that he found the property had cost and was worth less than $200,000; that the rents did not then amount to $30,000 annually, and that they did not and would not amount to $40,000 annually after October 1st, 1920, and that the cost of maintenance was more than $8,000 annually, and that Wolters could not and would not receive a net monthly income of $1,000 from the property, as Gordon at the time well knew.
    “Both Stoutenburgh and Gordon contradict Wolters and state that at this interview no such statements or representations were made, and they agree in stating that what then occurred was that Wolters asked for a temporary loan, which Gordon refused to make, and then Wolters asked if Gordon would be interested in buying an interest in his father’s estate,' to which Gordon replied he would not be interested in buying such an interest, but that he had an apartment-house he might be willing to trade for such an interest; Wolters stated he would think it over, and he and Stoutenburgh left without anything further being said or done.
    “About July 15th, according to Gordon, he had another call from Wolters, who wished a loan of $20,000, which Gordon refused to make. Wolters then inquired about the apartment-house, and Gordon then gave him the foregoing particulars about the property, and the rental income and also the prospective income. Gordon states that no one but himself and Wolters were present at this interview'; that he made no false or misleading statements about the property; that Wolters was perfectly sober, and that he told Wolters he had owned the property only two months; that the rental agents had assured him that after October 1st they expected by raising the rents that the gross annual rentals would be $40,000, and that the agents had also told him the upkeep charges would not exceed $8,000, and he suggested that Wolters call on Eeist & Eeist, the rental agents, for more detailed information. Wolters left him with the statement that he Avould investigate the matter. On July 24th, Stoutenburgh received, at Cape Cod, a letter from Wolters, in which he stated he was convinced he could make a better deal with Gordon than he could with parties in Philadelphia, to whom he had applied for a loan, and that Gordon would, not close the matter unless Stoutenburgh was present, and on July 25th Wolters told Gordon he did not think the property was worth $300,000.
    “And it appears, although Wolters denies it, that he also told others that he had the property appraised and found it was not worth that sum.
    “On July 27th, at Wolters’ request, Stoutenburgh accompanie him to the property, where they inspected three apartments and spoke to their occupants, and the rest of this day until nearly six o’clock Avas spent by them in Gordon’s office, where, with Gordon and Charles Jones, his attorney, they discussed all the details of the transaction, including Stoutenburgh’s commission, which was reduced to $2,500. Wolters states he was fairly sober on this day, and all other witnesses to the transaction states that neither on this date nor on any other, Avhile the matter was being considered and concluded, was Wolters ever under the influence of liquor. On this day the parties prepared an agreement by which the price of the property was fixed at $300,000, which Wolters was to pay by an assignment of his interest in his father’s estate, which was valued, for the purpose of the agreement, at $85,000; the property was to be conveyed subject to the two mortgages, aggregating $150,000, and the balance, including $10,000, which Gordon was to advance to Wolters, was to be secured by a purchase-money mortgage. Wolters states he does not remember what happened at this conference; that he took practically no part in it, nor in fixing the value of the property, nor the value of his interest in the estate, nor in connection with smy of the details of the transaction, and that he did not see and did not take with him when he left a copy of the agreement for further consideration.
    “He is contradicted on every one of these matters by Stoutenburgh, Gordon, Jones and Miss Snyder, Gordon’s stenographer, and particularly- by the latter, who states Wolters participated in the preparations of the rental statement, showing the gross rentals then to be about $25,000 and not $30,000, and that he also participated in the dictation of the terms of the agreement and that she remained later than usual typewriting the agreement, as Wolters desired to take a copy of it with him, which he did.
    “On the following morning Wolters returned to Gordon’s office and he states he was so intoxicated throughout the day that he cannot recall what papers he signed, nor what part he took in the transaction; he does remember he expressed a desire to consult counsel and at Gordon’s suggestion that he have a lawyer pass upon the papers, accompanied by Jones and Stoutenburgh, he called on Mr. IsherWood, who glanced over the papers and refused to have anything to do with the matter. In this he is corroborated by Mr. Isherwood; but the latter does not recall that Wolters appeared to be intoxicated.
    “The parties then returned to Gordon’s office, where the agreement, deed, bond and mortgage for $83,000, the assignment of Wolters’interest in the estate and Wolters’ affidavit, a letter signed in complainant’s name, stating the expected amount of gross rentals after October 1st, 1920, and a check from Gordon to Wolters for $9,800, were all executed and placed in escrow with Stontenbnrgh pending the delivery of assignments of Wolters’ life insurance policies for $51,500 to Gordon, and at this time Gordon advanced to Wolters $200 on account of the $10,000.
    “Before these papers were executed, all the witnesses state that on Wolters’ insistment there was excepted from the assignment of his interest in the estate his share in certain real estate on Central avenue, Newark, and also all property and interest in the estate he might inherit by the death of any of his brothers or sisters; and there was also excepted from the transaction certain disability insurance carried by Wolters.
    “On the following morning, July 29th, Wolters called on Gordon and it was agreed to increase the value of Wolters’ interest in the estate from $85,000 to $100,000, and the increase was credited by reducing the amount of the mortgage from $83,000 to $68,000; this correction was made'in the papers and noted by Wolters’ initials; the amount to be advanced Wolters was increased from $10,000 to $15,000; this additional $5,000 was to be repaid by the terms of the mortgage in monthly installments of $1,000 each, beginning with August 15th,. 1920, and the balance of the mortgage was to run for three years, with interest thereon payable on the fifteenth of every month. The letter relating to rents, deposited in escrow, was destroyed, and in its place Gordon, in complainant’s name, gave Wolters what they called a guarantee reading as follows:
    “ ‘‘Whereas, through my attorney I have stated that the gross rental of said premises beginning October 1st, 1920, to October 1st. 1921, is, or will be, forty thousand ($40,000) dollars * * *. Therefore should the gross rental for the year * * * be less than * * * forty thousand ($40,000) dollars, I agree that the difference shall be deducted from the amount of my mortgage on October 1st, 1921.’
    “Gordon further agreed to pay the annual premiums on the life insurance policies, amounting to about $-1,600, and to return this insurance to Wolters if he were living at the date of distribution of his father’s estate. The transaction was then closed and Wolters received his deed and the check for $9,800, and entered into possession of the property and continued Feist & Feist as its rental agents and managers.
    “On August 24th, 1920, Wolters received from Gordon the additional $5,000, and paid therefrom $1,000 for the August 15th installment due on the mortgage, and Gordon also gave Wolters at this time a copy of the settlement statement which was made up on July 28th or 29th. From the August rents Wolters on September 10th, 1920, paid Gordon $340 for the August interest due on the mortgage, and he has made no other payment on either principal or interest, although Wolters monthly thereafter received and used the rent checks for his personal and living expenses up to and including the month of December, and Mrs. Wolters has used for her own purpose the rent check for $300 which she received from the agents on January 28th, 1921.
    “Defendants also contend that Gordon misled Wolters by not disclosing that he was the real owner of the property and not merely the attorney of complainant, as he pretended, while Gordon and other witnesses testify he repeatedly told Wolters of this fact, and also told him he kept title to the property in the name of the G. & J. Company, or in the name of complainant, as a mere matter of convenience.
    “I am satisfied Gordon did not fully disclose his actual connection with the property until counsel made the admission in court that complainant was merely Gordon’s dummy.
    “It is also claimed that if the mortgage is valid, the bill was filed prematurely on February 1st, 1921, and that complainant is not entitled to a decree, because when the bill was filed the amount of the deficiency in the annual rentals .for the year ending October 1st, 1921, between the amount realized and the guarantee of $40,000, had not and could not then be ascertained and credited on the mortgage. This deficiency is now estimated at. about $7,000, and there is no reason why, if the mortgage be valid, the amount of this deficiency cannot be deducted by the terms of the decree.
    “It is further claimed that throughout the transaction Wolters was without legal advice and that in some way Gordon, because be was a lawyer, took advantage of it. Not only is the fact of Wolters being without legal advice contradicted, but nothing is shown where Gordon as a lawyer acted improperly, and nothing is shown to justify the claim that because Gordon was a lawyer Wolters was at a disadvantage, and therefore suffered some injury.
    “Wolters married his present wife, the defendant Marguerite 0. Wolters, on .September 21st, 1920, and about October 1st, 1920, he conveyed the mortgaged premises to her. Defendants state that she holds title thereto in trust for him. It appears that although both Mr. and Mrs. Wolters claim to have discovered from the rental returns and other sources by the middle of October, 1930, that Wolters had been defrauded in the transaction, they made no complaint to Gordon nor to anyone else about the matter until about January 8th, 1921, when Wolters consulted counsel. During all the period Wolters continued his efforts, up to and including December, to obtain for Gordon the additional life insurance he had promised him, and in December, 1930, defendants attempted to obtain through Stoutenburgh an additional loan of $5,000 on the property or to have him sell it for them. The explanation Wolters offers for his failure to charge Gordon with the fraud in this transaction after he discovered it October, 1920, is his ignorance of the law of election and rescission, and that he was relying on his guarantee; and in addition he claims that the $10,000 advanced to him by Gordon on July 28th-29th was a gift; that it was not to be secured by the mortgage in suit nor in any other way; and he further claims that an interest in his share of his father’s estate, amounting, to $25,000, which he had previously assigned to insure the payment of alimony to his former wife and child, was not to be included in the assignment of his share of the estate which he made to complainant. He testifies that it was not until he had consulted counsel in January, 1921, that he learned this $10,000 advancement was included in the amount of complainant’s mortgage, although it was so stated and included in the agreement of July 28th, 1920, and although he paid interest on it to Gordon in September. When he learned from counsel about this $10,000, and that the assignment of his interest in the estate included the $25,000 interest which he had previously-assigned to secure the payment of alimony, he forthwith undertook, through counsel, to rescind the sale.
    “In Wolters’ affidavit, sworn to before Jones on July 28th, he states, 'Besides the personal property which is set forth in the inventory and accounting (of his father’s estate) there is included in said estate, Nos. 24 and 30 Commerce street * * * said Commerce street property, and the above said $25,000 (referring to the reference therein to the previous assignment to secure the alimony payments) are included in the assignment to Dorothy Ginsberg, but No. 18 Central avenue, Newark, N. J., and the portion I might receive by reason of the death of my sisters or brothers before distribution, is expressly excepted from said assignment,’ and by the assignment itself, executed on July 28th, only Wolters’ interest'in the Central avenue property and the possibility of any additional share of the estate that might come to him through the death of a brother or sister, are excepted from the share of the estate assigned to complainant. Notwithstanding that the papers in the matter in express terms included the $10,000 advancement and the assignment of the $25,000 interest in the estate, Wolters insists he did not know these facts until he consulted counsel in January, 1921, and that when counsel gave him this information, he for the •first time, became aware of the extent to which he had been defrauded, and thereupon elected to rescind the sale.
    “From the facts recited, and others not mentioned, from this lengthy record, there is ample proof, not only of defendants’ delay in electing to rescind promptly after learning of the alleged fraud, but we have in addition conclusive proof of what the courts call—conduct—evidence of defendants’ election to abide by this bargain and to enjoy the benefits of it. The first undisputed offer to rescind is made by the answer filed in March, 1921, eight months after the transaction, five months after they discovered the fraud in October, two. months after defendants state they knew completely to what extent they had been defrauded, over a month after they had used the rents from the property, and this offer xas made only after they had been restrained from collecting further rents.
    “Applying to this situation the rule of the cases in this court and in the court of errors and appeals (Dennis v. Jones, 44 N. J. Eq. 513; Clampitt v. Doyle, 73 N. J. Eq. 678; Faulkner v. Wassmer, 77 N. J. Eq. 537, and Reed v. Soap Co., 81 N. J. Eq. 182), it must be held that defendants did not promptly elect to rescind and that their failure to rescind within a reasonable time is plenary evidence of their election not to do so; and therefore the attempted rescission made by the answer was made too late, as it was made after defendants, by their conduct, had elected, with complete knowledge of the alleged fraud,, to ratify and to keep the benefits of the transaction. It is insisted, however, that in January, 1921, Mrs. Wolters, on learning of the extent of the fraud, attempted, through counsel, Mr. Conover, to rescind the sale; but it appears from Mr. Conover’s testimony that at the time he made the offer of rescission to Mr. Jones that Conover’s firm had not decided to represent either of the defendants; that he called on Jones for information and then made the offer; that he was without authority to make the offer to rescind, and that he was without the funds to effectuate the offer if it were accepted; and it does not appear that Jones had any authority to accept or reject the offer, or that he ever communicated it, if it were made; which Jones denies, to either the complainant or Gordon; and I therefore conclude that no offer to rescind was made by either defendant until the answer was filed in March, and that it was then made after defendants, by their conduct, had elected to abide by the transaction and to retain the benefits of it, and after they, in order to continue in the enjoyment of their benefits, had opposed, in February, the appointment of a receiver for the rents of the property.
    “On this feature of rescission, as well as on the main contention in the case relating to misrepresentations, I have reached the conclusion that defendants have not even attempted to put the court in possession of the actual facts of the transactions; for Wolters’ pretense that he did not know the extent of the fraud until counsel told him in January, is not only contradicted specifically by the express terms of the papers he signed, but by this pretense of ignorance on Wolters’ part, he places Gordon, who he claims defrauded him, in the position of voluntarily increasing the value of Wolters’ interest in the estate from $85,000 to $100,000, of voluntarily reducing his mortgage from $83,-000 to $68,000, and also of voluntarily increasing the amount to be advanced to him by Gordon from $10,000 to $15,000; and, although, because of his alleged drunkenness, he does not remember that $10,000 of this loan was to be secured by the mortgage, he distinctly remembers that the repayment of the additional $5,000 was to be secured by this mortgage, and notwithstanding his drunkenness he is positive tnat Gordon made a gift of this $10,000 to him.
    “While on the main contention in the case the- evidence not only does not support Wolters’ contention that he was induced to make the transaction by Gordon’s fraud and deceit practiced upon him while intoxicated, but it conclusively establishes that in this matter Wolters was neither intoxicated nor ignorant; it shows him anxious to obtain a loan of money at any cost or sacrifice; and it also shows, notwithstanding his pretense of drunkenness, that months after the event he can recall with the most minute details and can recite with the greatest fluency page after page of misrepresentations he claims were made to him by Gordon. The evidence further shows that if the price of the property be considered excessive, it also shows that this price was fixed in connection with its exchange and not with its sale, and that Wolters was careful and capable enough to see that the benefits were not all on Gordon’s side, because, in order for Gordon to gain anything by the transaction, Wolters must be living in 1927, or whenever his father’s estate is distributed, and that $25,000 of Wolters’ interest in the estate is taken by Gordon subject to prior claims thereon; furthermore, Wolters’ interest assigned to Gordon is subject to any loss the estate may sustain in principal or income, and Gordon is obliged to pay the annual premium on Wolters’ life insurance and to reassign the same on distribution of the estate to Wolters, regardless of what Gordon may obtain from the estate of Wolters’ father. Wolters only abandoned his pretense of ignorance and his plea of intoxication when compelled. to do so by the contradictions of every disinterested witness and the evidence of his application for life insurance—the last being made about a month before this transaction, wherein he represented that he did not use, or very infrequently used, intoxicating liquors.
    “Wolters in all his claims is contradicted in every detail of the transaction by the testimony of every witness to it, by many of the details of the matter which could not have been obtained from any one but himself, and by the false and misleading attitude he assumed before the court in his efforts to establish these claims.
    “My conclusion is that the proofs do not support Wolters’ allegations of misrepresentations, rescission or any of his other claims.
    “A decree will therefore be advised for complainant for the balance of principal and interest due on her mortgage, less such amount as may represent the actual deficiency below $40,000 in the rent received from the property, during the year ending October 1st, 1931.
    “The terms of the decree may be settled on three days’ notice.”

      Mr. Charles Jones, for the respondent.

      2Iessrs. Lum, Tanvblyn ,<fi Colyer, for the appellants.
   Pee Curiam.

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

For affirmance — The Chief-Justice, Swayze, Then-chard, Parker, Bergen, Minturn, Kalisci-i, Black, Katzenbach, White, Heppeni-ieimer, Williams, Gardner, Ackerson—14.

For reversal—None.


text:
    Anna B. Baker, executrix, &c., respondent, v. Charles Soltau et al., appellants.
    [Decided February 1st, 1923.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Bentley, who filed the following opinion:
    “The bill in this case is filed by the executrix of Eichard S. Baker, deceased, for the construction of an attempt to draw a holographic codicil; to the sufficiency of this no ques.tion is presented by either of the parties. The instrument in question is as follows:

      “ ‘I give, devise and 'bequeath to Albert W. Baker my one-half undivided interest in the firm of Soltau & Baker, 104 Washington street, N. X., consisting store fixtures, produce and supplies on hand, horse and wagon, my one-half undivided interest in our cress beds, real estate and personal property at Bonnybrook and Spotsdam, in Cumberland county, Pa., also my one-half undivided interest in our real estate and personal property in Jefferson and Knox counties, Tenn. December 12th, 1916.’
    “The complainant claims the decedent’s one-half interest in the firm bank account under the preceding language as the residuary legatee.

      “The answer of the defendants.admits all of the allega-tions in the bill, but asks for a construction of the codicil that will result in the one-half interest in the bank account going to the defendant Albert W. Baker, and a further defence which, in substance, recites that the complainant called upon the defendant for the sum of $176.36, being the amount of the defendant Baker’s share of the inheritance transfer tax to the State of New York, which sum was paid by him to the complainant and accepted by her, wherefrom an estoppel is claimed.
    “It seems to me clear that the language of the codicil following the word ‘consisting’ is descriptive of the extent of the one-half undivided interest in the firm that was bequeathed by the decedent. While this' instrument was very inartifically drawn, I think there, can be no question of the propriety of drawing the inference that the testator meant to write ‘consisting of store, fixtures, produce,’ &c. In fact, defendants’ counsel see no objection thereto, either in his oral argument or in the brief subsequently submitted by him.
    “Under the case of Evens v. Griscom, 42 N. J. Law 579, and the cases cited by Chief-Justice Beasley, there can be no question that the testator intended to restrict the interest bequeathed to the specific items mentioned by him.
    “Counsel refer to the language of Vice-Chancellor Pitney in Sites v. Eldredge, 45 N. J. Eq. 632, which I do not think is a parallel case. In that instance the testator undertook to give to his wife ‘all my real and personal estate, consisting of clothing, jewelry, money’ and a number of other items of personal property. The question in that pro ceeding was to determine whether or not the subsequent demonstration necessarily excluded the devise of his real estate, and the vice-chancellor very readily and easily decided that it did.
    “It is apparent that no assistance is obtained from that opinion, and it might be pointed out that in the last paragraph the vice-chancellor wandered into the realm of speculation. merely by way of illustration, inasmuch as his own opinion alluded to the elementary principle that such was no way to construe the language of a testamentary instrument. Counsel have both quoted authorities as to the distinction between the word ‘consisting’ and the word ‘including.’ There can be no serious difference of opinion that they are not synonymous and that where a bequest is subsequently qualified by an inventory headed by the phrase ‘consisting of’ it is determinative of the extent of the bequest; whereas a similar provision, followed by the word ‘including,’ would not by necessary implication exclude items other than those mentioned.
    “With regard to the second defence of estoppel, I was first somewhat impressed until the proceedings before the New York transfer tax attorney were explained. It appears that it was necessary to make a return to the New York authorities of all the property of the testator in the State of New York, including his interest in the firm of Soltau & Baker. For that purpose there was secured from the defendants a statement of an accountant, and that was submitted to the transfer tax attorney. lie, not the executrix, then apportioned the tax as between her and the defendant Baker and submitted a copy thereof to counsel for the complainant. He, acting for the complainant, then communicated with the defendant, who, notwithstanding that the proofs show there was a controversy as to the effect of the codicil in this case between him and the complainant, sent his check to her, which was accepted by her. I do not think that he can now expect to set this up by way of estoppel against her claim.
    “Estoppel is defined in Pom. Eq. Jur. (§ 804) as follows:
    “ ‘Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right, either of property, of contract, or of remedy.’

      “It must be apparent that the facts in this case do not bring the conduct of either of the parties within the language quoted. I am inclined to the belief that the defendant Baker was in no.manner misled by the complainant, and had quite as much information and knowledge of the transaction as she had. On the argument complainant’s counsel practically admitted, as I think he should, that the defendant Baker is entitled to recover back from the complainant the said sum of $176.36 so paid by him to her under a mistake.
    “I will advise a decree in accordance with the conclusions of this memorandum.
    “Since the foregoing part of this memorandum was written, a very earnest supplemental brief on behalf of the defendants, dealing with the argument of the complainant on the defence of estoppel, has been received; but after equally earnest attention to the argument therein I see no reason to change my opinion.
    “The defendant says that there was no foundation in the proofs for complainant’s argument, that when the defendant Baker sent his check previously mentioned, die intended to use the fact of such payment as an estoppel,’ and the further allegation ‘that he’made it with the purpose and design of bettering his own position and to plead his own act as an estoppel against the complainant.’
    “It seems to me that the testimony of Mr. King was ample ground from which he might argue as indicated, and I feel compelled to come to the same conclusion that he urges. His testimony was that almost immediately after the death of the testator, as I recall it, although it is of no particular moment, even before this defendant had engaged counsel, he urged the construction of the codicil for which he now contends, and that in April, six months later, he should have complied with the request for the sum of money sent by him is not consistent with his present demand, when it is recalled that neither Mrs. Baker nor her counsel, with whom the defendant had discussed the matter, had changed their respective views in the slightest.

      “I am firmly convinced that Baker, .who is not as unsophisticated as counsel would like him to appear, acting upon his own impulse, cheerfully subscribed $176.36, for the purpose of securing to himself half of a very considerable amount of money in bank. It is beyond me to understand, in view of the complete knowledge this defendant had of the subject, how the determination of the transfer tax attorney or the surrogate in Pew York can be binding upon this court in the construction of the instrument that is at the bottom of the issue here. This seems so clear to me as to require neither citation of authorities nor the presentation of argument.
    “Potwithstanding the supplemental brief of the learned counsel for the defendant Baker, I see no reason to alter the conclusions hereinabove expressed.”

      Messrs. King.é Yogi, for the respondent.

      Mr. Charles A. Rathbun, for the appellants.
   Per Curiam.

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

For affirmance — The Chiee-Justice, Swayze, Trbnchard, Parker, Bergen, Minturn, Kalisoh, Black, Katzbnbach, White, Heppenheimer, Williams, Gardner, Ackerson, Van Buskirk—15.

For reversal—Pone.