text:
    David B. Voorhees v. George Bailey et al.
    [Submitted October 7th, 1899.
    Decided November 3d, 1899.
    Filed March 24th, 1900.]
    An auctioneer at an administrator1 s sale of real estate, being interested in having- the property bring its full value, by fictitious bidding ran the bids up to about the full value and then knocked it oiF to one who had made no bid, whereupon the administrator, who had had no intention of buying, but who had advertised the sale thoroughly and therein acted in good faith, publicly assumed the bid, took possession at once and made valuable improvements. The heirs were all of age, and lived near, and complainant, who was one of them and the only one who asked to be relieved of the sale, made no objection to the court’s approval of the sale a month later. The sale was confirmed, .conveyance made to the person declared to be the bidder by the auctioneer, who conveyed to defendant, one of the administrators. They filed an account charging themselves with the amount bid, exceptions were taken to the account by the complainant and it was confirmed. No bill to set aside the sale was filed for over a year, during which time complainant saw the administrator making improvements of a substantial character. — Held, that complainant was ■estopped to claim that the sale was invalid, and to have it vacated.
    Heard on pleadings and proofs in open court.
    The complainant is one of nine children who are the heirs-at-law of Hendrick Voorhees, late of the county of Monmouth, who died on the 29th of October, 1896, intestate. The defendant George Bailey is one of the administrators of said deceased, •and the other eight defendants are the brothers and sisters of the •complainant and co-heirs-at-law of said deceased, and one of them, Nelson T. Voorhees, is co-administrator with Bailey.
    The object of the bill is to set aside a sale of real estate by the •defendants Bailey and Nelson T. Voorhees, as administrators of Hendrick Voorhees, made on the 24th of March, 1897, by virtue of a previous order of the orphans court of Monmouth county for that purpose, to one Asher Curtis, and by him subsequently •conveyed to the defendant George Bailey, on the ground (1) that the sale was fraudulently conducted by the administrators in such a manner as to prevent the property bringing its full value, and (2) that it was bought in at the sale by Curtis as the •agent and figurehead of Bailey, and subsequently conveyed to him.
    The bill calls for an answer from the administrators under ■oath. The administrators severed in their answers and each denies the fraud, or that there was any agreement or understanding between Curtis and Bailey, before or at the sale, that ■Curtis should buy the property for Bailey.
    The allegation of the bill is as follows:

      “And your orator further shows that the said Asher Curtis is a friend and a brother sea captain of the said George Bailey, one of the administrators aforesaid, and that it was arranged and agreed by and between them, the said George Bailey and • Asher Curtis, prior to said sale, and at the time of the same, that he, the said George Bailey, one of the administrators as aforesaid, phould himself become the purchaser of the said land, and that the same-should be struck off and conveyed to the said Asher Curtis, and that he should then convey the same to the said George Bailey.”
    ! The answer of Bailey, the principal defendant, on this sub-' ject, is as follows :
    “ This defendant admits that said Asher Curtis is a friend of this defendant,but this defendant denies that there was any arrangement or agreement entered into or made or had between them at the time of or prior to said sale' that this defendant should be or become the purchaser of said tract of land,- or that said premises should be struck off and conveyed to said Asher Curtis, and that he should then convey them to this defendant.”
    And there is an interrogatory annexed to the bill, addressed to both defendants, as follows :

      “ Had you, or either of you, any conversation or understanding with Aslier Curtis either before, or at, or during the time of the putting up and crying' said lands for sale, in reference to, or in any way concerning the purchase of said lands? If so, what was that conversation, or the substance of it, and the whole of that substance? Did you, or either of you, direct-, ask or request said Asher Curtis to bid for said lands at any time? Did you, or either of-you, bid for said lands ? Did you, or either of you, intimate to, authorize or' direct said Asher Curtis, or anyone else, either by word, language, -wink, nod, motion or expression of any kind, at any time, to bid for or buy said homestead and lands of said Hendrick Yoorhees, deceased?”
    Bailey’s answer to that interrogatory is as follows:
    “ I liad no conversation or understanding with Asher Curtis before or at the' sale or the time of the putting up and crying of the lands known as the homestead in reference to or in any way concerning the purchase of said lands. At the sale ttie complainant attempted to buy the property for a small sum, and I • said to Asher Curtis, I will make Mm pay for it, but I did not direct, ask or request said Curtis to bid on said lands at any time, and I did not do this by an intimation or authorization or by a direction by word, language, wink, nod, motion or expression of any kind, hr any other indication which might suggest itself to the complainant to buy or bid on the lands of said Hendrick Yoorhees.”

      The answer also denies all allegations of mismanagement at the sale, or contrivance to prevent the property from bringing its full value.
    The sale took place March 24th, 1897, in complainant’s presence, who was at once aware that Curtis’ bid was assumed by Bailey; it was duly reported to the orphans court, and by it confirmed on April 29th, without objection. Bailey took immediate possession, and, after the confirmation, made considerable improvements. The administrators filed their account charging themselves with the amount bid at the sale. Complainant filed exceptions thereto, and after the allowance of the account by the orphans court, this bill was filed April 19th,. 1898.

      Mr. William I. Chamberlain and Mr. Henry Chamberlain, Jr., for the complainant.

      Mr. Charles J. Parker, for the defendants George Bailey and Nelson T. Yoorhees.
   Pitney, V. C.

The decedent died possessed of two tracts of land situate in Monmouth county. The tract here in question was called the homestead, and consisted of about one acre of land, with a house and barn and some outbuildings; and the'other tract was about thirty acres, mainly woodland, situate detached from the house lot. This property was all heavily mortgaged at the time of his decease, and he was indebted besides that to various individuals, mainly to his own children, and, as I infer from the evidence, most of that indebtedness was for services which they had rendered him, with one notable exception, however, namely, that the complainant had been security for him on a note of $250, and had been obliged to pay it in cash. I infer from the evidence that each of these separate tracts was separately mortgaged, and then that there was a blanket mortgage covering both tracts. The administrators applied for and obtained an order to sell the land for the payment of debts, and although it did not appear affirmatively at the hearing that they were directed to sell the lands free of the mortgages, in point of fact they did so sell them. In re Voorhees, 12 Dick. Ch. Rep. 291.

All of the charges of mismanagement of the sale entirely failed. There was a suggestion made that the lot on which the house stood should have been divided and sold in parcels, but no serious request was made to the administrators so to do, and there was no proof made at the hearing that the homestead, as it was called, would have brought a better price if divided, but the contrary appeared. It may be here said that the children were all of age, and lived in the neighborhood.

For the purposes of the sale the administrators caused the woodland to be divided into lots by a surveyor. The property was thoroughly advertised, not only in the formal legal method, but by large posters set up in the neighborhood, and every reasonable effort was made by the administrators to cause it to bring a full price. It was well attended.

There is not the least particle of proof in the case that Captain Curtis, who was a personal friend of Captain Bailey, the defendant, made any bid whatever upon the homestead. Both he and the auctioneer deny it. It was struck off to him by the auctioneer without the least authority on Curtis’ part. The fact is that the auctioneer, who was a real estate and insurance agent and a reasonably shrewd man of business, was guarantor on the blanket mortgage upon the premises, and anxious on that account to have the property bring its full value. When the homestead was put up the complainant bid $500 for it. The defendant Captain Bailey said to the auctioneer: “Don’t start the property at $500; make it $1,000.” The auctioneer then cried it as on a thousand-dollar bid, and then the bids were advanced. So far as the evidence shows only two bona fide bids were made after that by separate bidders, the auctioneer crying fictitious bids that were never made, until he got a bona fide bid of $1,500 from a Mr. Longstreet, who owned the adjoining property; then another of $1,525 from a Mr. Austin Voorhees (not a relative of the heirs), who lived in the neighborhood and desired to buy; then lie cried it on a bid of $1,550, which was made by no person, and, when he could not get a further bid, was obliged to strike it off on that bid, and without any authority from Curtis whatever declared him to be the purchaser. Curtis assented thereto, but shortly afterwards, Bailey, being apprised of the situation, assumed the bid, and said he would take it at that price. The sale, however, was reported to the orphans •court as having been made to Captain Curtis, and was so confirmed, and a deed was actually made and executed by the administrators to Captain Curtis.

There was not the least concealment of the fact that Captain Bailey, the defendant, had taken the bid from Captain Curtis and become the real purchaser. He himself at once avowed it, and, as far as appears, it was known to all the heirs. The complainant knew of it at once, and Captain Bailey took immediate .and open possession.

Ho objection was made to the confirmation of the sale on .account of its having been improperly conducted, that it did not produce a sufficient price or that it had been made in reality to Captain Bailey. All persons interested seemed to be satisfied with it, and it was duly confirmed by the court on April 29th. Shortly after the sale the administrators filed their account, charging themselves with the purchase price.

A dispute then arose among the heirs as to their several ■claims, and Capt-ain Bailey got them together and induced them to agree among themselves as to how much their various claims should be. After this was done a large batch of exceptions was filed by complainant to the administrators’ account in the ■orphans court, which, of course, produced litigation, and when the whole thing was finally settled the net amount of the estate remaining was only sufficient to pay a fraction short of eighty •cents on the dollar on the several claims.

After this litigation in the orphans court, and on the 19th of April, 1898, more than a year after the sale, the complainant filed his bill for relief against the sale itself.

The value of the property was gone into, and while one or two witnesses swore that it was worth $2,000 or upwards, the ■great weight of the evidence was that $1,550 was a full price for it.

I am satisfied from the evidence that Captain Bailey is truthful in his sworn statement that he had no expectation or desire-to purchase the homestead property ; that he gave no authority to Captain Curtis or to the auctioneer to bid for it; that there was no arrangement between them that he should bid in the property for him, and that Captain Curtis did not bid on it at all, but that it was really the bid of the auctioneer. The latter swore that if Captain Curtis had not assumed the bid he, the-auctioneer, would have assumed it.

There is another set of facts introduced into the oase by the defendant Bailey’s answer, which seems worthy of notice. While he had no idea of purchasing the homestead, he did desire-to purchase, and did purchase through Captain Curtis, one of the pieces of woodland. Captain Curtis, at his request, bid upon that property, which was put up and struck off before the-homestead. He was outbid by one Cook, as the auctioneer declares, who denied that he made the bid, and it was struck off to Curtis, and Curtis subsequently conveyed it to Captain-Bailey. Now, strange as it may seem, I am satisfied that Captain Bailey was not aware that he was, in this action, doing anything wrong, dishonest or contrary to the principles of a court of equity. The fact, which I think came to the knowledge of the'auctioneer, that Captain Curtis had just bid off the piece of woodland for Captain Bailey emboldened the auctioneer to declare Curtis to be the purchaser of the homestead without any authority from either.

In this case, as in the other, there was no concealment, and as soon as the sale was confirmed he proceeded to expend a considerable sum in clearing and fertilizing it.

Captain Bailey, in his answer, sets out this purchase by him of the woodlot, and offers to give up the title to both properties if made whole for the amount of improvements he had put upon each. Complainant, however, declared at the hearing that he was satisfied with the sale of the woodlot, and did not wish to ■disturb it.

, Not only did Captain Bailey, as I have stated, avow himself ■the purchaser immediately after the sale, but he took immediate •possession, and as soon as the sale was confirmed by the orphaus court he commenced to make improvements, and spent upon the property a little over.$200 in cash or its equivalent, and has paid the accruing taxes.

Besides these improvements he purchased an adjoining piece of land situate in the rear of the homestead, and which, united with it, greatly increased the value of both. In fact, the homestead lot was ill-shaped. It was an isosceles triangle, or nearly so, with a narrow base, and one of the long sides bounded on the highway, so that it had but little depth. After making this addition he moved one of the outbuildings of the Voorhees lot up to and adjoining, the barn, and placed it so that a portion of it now stands upon the adjoining lot, since purchased by him. The changes he has made are such as to render the outbuildings suitable for use in connection with a small farm, rather than for a mere dwelling-house and garden spot. Of course, in order to separate the homestead from the additional purchase, it will be necessary to again move the outbuildings above mentioned, and it is to be inferred that the purchase of the land in the rear of the homestead would not have been made but for use in connection with it.

The fundamental principle governing all dealings with property held in trust is that the cestui que trust_ is entitled to the best efforts of the trustee to further in all legitimate ways the interests of the cestui que trust. It is the duty of the trustee to use and exercise such care and diligence in dealing with the trust estate as a prudent, sagacious man would bestow upon his-own. The trustee is not permitted to have any interest in the subject of the trust antagonistic to, or in any degree inconsistent with, that of the cestui que trust. It follows from this that where there is a trust for sale, the trustee cannot become, either directly or indirectly, a purchaser at his own sale, even though the sale be at auction and so conducted as to insure the best price, and in point of fact the price actually paid appears to be a fair and full one. The principal reasons for extending the restriction so far are: (1) that the trustee shall not be subjected to the least temptation to abate any reasonable efforts to procure the best price for the trust property; (2) the danger that the trustee may have become possessed, in the course of his dealing as trustee, of some secret information of facts and circumstances affecting the value of the trust property, of which he may take advantage for his own benefit; and (3) the difficulty of ascertaining whether in fact all proper efforts have been made by the trustee to procure the best price.

It is at once apparent that it is of the essence of this rule that the obnoxious inconsistent position of the trustee should exist before or at the time of the sale, which period, in a sale at auction, is the moment of striking off the property to the highest bidder and declaring him the purchaser. The trustee must entertain the intention or desire to purchase before or at the moment of the sale in order to place himself in a position antagonistic to his cestui que trust.

If the trustee advertises and prepares for sale with proper care and' diligence, and in good faith, without entertaining the least intention or expectation of becoming a purchaser, and, in case of a sale at auction, does not in fact, directly or indirectly, bid for the property, and it is struck off in good faith to another person, then there is a complete absence of any of the elements of danger to the interests of the cestui que trust which underlie the restrictive rule in question.

The leading authorities in this state which support the foregoing propositions are the following: Scott v. Gamble, 1 Stock. 218 (at pp. 235, 236); Mulford v. Bowen, 1 Stock. 797 (at p. 798); Staats v. Bergen, 2 C. E. Gr. 554. (at pp. 558, 559, 560); Bassett v. Shoemaker, 1 Dick. Ch. Rep. 538, and cases there cited; Wortman v. Skinner, 1 Beas. 358 (at pp. 371, 372). T will quote the language of the late Justice Yreden burgh, in speaking for the court of errors and appeals in the last case cited (at pp. 371, 372), since it is relied upon by the defendant herein : “Let us first see, before considering the evidence, what this doctrine, as applied to the case before us, really is. My understanding of it is this: That if an administrator, at public or private sale, sells land to another, upon an agreement made before or at the sale, that such person shall buy or bid off not for himself or for others, but for the administrator, that the purchase-money is to come from him, and the deeds made from him to the bidder, and by the bidder back again to the administrator, in pursuance of said agreement, then equity will set aside the proceedings as fraudulent in law. But if the purchaser bids not for the administrator but for himself, or for the heirs of the deceased, or for anybody else, then the principle does not apply. The rule was made from considerations of public policy, to prevent the land from being sold under value by the secret machinations of the administrator; and therefore such agreement and arrangement must be made and exist before and at the very instant of the sale. Any agreement made, however soon after it is struck off by the administrator to the purchaser, is not within the letter, the spirit, or the meaning of the rule. The rule has-then had its operation upon the sale, and the land is again instantly free for all the world to purchase. The very reason for establishing the original rule requires this construction of it, otherwise it would produce the very evil it was intended to-guard against, by restricting to that extent the power of the purchaser to alienate. Applying these principles, to the case before us, if Cooper and Emmons, on the 2d of July, 1825, bid off this property for the complainant, which was carried out by the subsequent execution of the deeds to the complainant, then the complainant was at that time, and has been ever since, but a trustee for the defendants, and his title is voidable in equity. But if such was not the fact — if the purchase was made on the 2d of July, 1825, not for the complainant or for his benefit, but for the benefit of Cooper and Emmons, or of the heirs of N. Skinner, and the deed from Cooper and Emmons to the complainant was by virtue of an arrangement made after the 2d of July, 1825, then there was no legal fraud in the transaction. Immediately after the property was struck off on the 2d of July, 1825, the complainant had as good a right to buy from those to whom the property had been struck off as anybody else, and it would then be in him fraud, neither actual nor legal.”

In that ease the property was struck off by Wortman, the administrator, to two purchasers who were mere nominal bidders, even if they bid at all, at the best price to be had at the time;’ but which was not satisfactory to the heirs; the object being to have the affair in such shape as to be able to make title at any moment when a purchaser at a satisfactory price could be obtained without incurring the expense of a re-advertisement. Several years afterwards the administrator bargained with a portion of the heirs for the premises at an advance over the amount bid, procured .the original sale to be confirmed, made á conveyance to the original nominal bidders, who at once conveyed to him, and accounted to the orphans court for the amount of the advanced price for which he bargained with some of the heirs, and used the consideration money to pay the debts of the deceased, most of which he had already advanced out of his own pocket. Though the facts of that case are somewhat different from those in hand, yet it is quite difficult to distinguish it in principle. In both cases there was absent the important obnoxious element of previous intention on the part of the trustee to become a purchaser; in both there was no actual sale to the nominal bidder; in both the trustee became the purchaser after the bidding was closed and a purchaser declared. But in the older case years elapsed before the trustee intervened to purchase, and in the present but a few moments of time. There were other circumstances in the older case which may have influenced, and probably did influence, the minds of the judges.

Under these circumstances I feel disinclined to hold that the present case is governed by that of Wortman v. Skinner. I am afraid that the precedent so set might lead to abuses and open a way by which trustees might actually manage to become purchasers at their own sales in pursuance of a previous intention, without being detected in so doing. I therefore decline to decide the case on that ground.

But there is another ground upon which I think the defendant must prevail, and that is acquiescence and practical confirmation of the sale.

While it is of the greatest importance for the security of infants and other helpless persons that the strict rules governing the conduct of trustees shall not be relaxed, it is equally important in administering those rules to bear in mind that trustees have the same right to equitable treatment at the hands of ■eestuis que trusient that the latter have against the former.

In the case in hand the complainant and the other eestuis que ■trustent had the option either to hold Captain Bailey to his purchase and require him to hold the title and charge himself as administrator with the purchase price, and thereby affirm and confirm the sale, or to disaffirm the sale, object to its confirmation by the orphans court, and refuse to accept, directly or indirectly, the purchase price. This option, in my judgment, it was necessary for such of them as had knowledge of the facts (all were adults) to promptly exercise. Apparently all, unless we except the complainant, did exercise their option to have the •sale stand and require the administrators to charge themselves with the purchase price. And, in my judgment, the same must be said of the complainant. If he intended to disaffirm the sale and have it set aside on the grounds now sought, it was, in my judgment, his duty to do so promptly. He could not speculate — wait in silence to see which course was most to his advantage — while Captain Bailey was acting in good faith on the assumption that complainant was satisfied with the sale.

It must be remembered that complainant was not laboring under any disability or lack of knowledge of the true state of the case; and when the sale was confirmed by the orphans court, without the least objection on his part or that of anyone else, it seems to me that Captain Bailey was entitled to conclude that the sale was approved and accepted by the complainant as well as by all the other adult heirs, and was justified in proceeding to make the improvements and changes on and in the premises which he did.

If there had been any actual conscious misconduct on Captain Bailey’s part upon which he might be properly charged with actual fraud, the conclusion just stated might not — I do not say would not — result.

But the facts show the contrary.

We have se'en that there was no previous intention on the part of Captain Bailey to become the purchaser of this lot. "We have seen that he used every reasonable endeavor to procure a full price for the premises. In all that his conduct is entirely above criticism. We have seen also that there was no concealment on his part. The complainant himself swears that he heard. Captain Bailey almost immediately declare that he had become, the purchaser. We have seen that he immediately took possession and acted as owner j we have seen that the sale was duly confirmed by, and that he accounted for the purchase-money to, the orphans court, and that the heirs-at-law, who are the principal creditors, have had the benefit of that money. The complainant was cognizant of the fact that Captain Bailey took possession, and does not deny that he saw him making improvements. Those improvements were of a character which will render it difficult to adjust the value of them as between Captain Bailey and the-complainant if the sale shall be set aside. They are, as we have seen, not such as to improve the house and lot as such, but to-render it more convenient for use in connection with the cultivation of a small farm, to which Captain Bailey has devoted it. He appears to have purchased land in the rear of the lot in question, to use in connection with it, and to have so arranged one of the buildings in connection with this additional purchase that it will be difficult to disconnect it without loss.

The counsel of complainant was asked during the progress of the case why objection was not made to the confirmation, or the bill filed sooner, and the only excuse he could make was that the-deed from the administrators to Captain Curtis was not promptly put on record, and he had no certain knowledge that Captain Bailey was the purchaser. But this want of knowledge is contradicted by the facts in the case which, as we have seen, show that the complainant knew that Captain Bailey was the purchaser and took immediate possession and spent money upon the premises. Besides, in my judgment, it was his duty to make his objection to the judicial confirmation of the sale.

The facts with regard to the deed from the administrators to Curtis, not being put immediately upon record, are these : The deed for the home lot was prepared by the auctioneer, the deeds-for the woodlots were prepared by'the surveyor, who made the partition for the purposes of the sale, and they were executed at different times and became separated. The surveyor, who had charge of the woodlots, saw that those deeds were immediately recorded. The deeds from Captain Curtis to Captain Bailey were not executed at the same time that the deeds from the administrators to Curtis were executed, but a few days intervened; and while the deed for the homestead from Captain Curtis to Captain Bailey was almost immediately recorded, that from the administrators to Curtis for this lot was left in the hands of the auctioneer for record and was mislaid by him. That there could have been no object in keeping the deed from the records is manifest from the fact that the one to Captain Curtis for the woodlot was immediately recorded. I think the excuse that the deed was not put on record is entirely insufficient to account for the complainant’s delay and that it is in this case inexcusable.

That the facts above stated are sufficient to charge the complainant with acquiescence and confirmation we have the authority of Scott v. Gamble, supra. There a sale was made in 1843 by an executor, under power in the will, and of course was not judicially confirmed. The fund produced belonged to the complainants, who were then infants. ' After they had arrived at age, and three or four years after the sale, and with full knowledge of all the facts, they accepted the bonds which were given by the trustee'for part of the purchase-money, in payment of their shares of the estate. The circumstances are set forth in 1 Stock. 241, 242, and Chancellor Williamson (at p. 242) uses this language, which I' think applies here: “ The question arises, under these circumstances and after having received, with full knowledge of the facts, the proceeds of the sale, is the complainant entitled to have the sale set aside, and a resale of the property? The fact of her having received the purchase-money is not an absolute estoppel to the complainant’s right of avoiding the sale, for no matter what the ratification by her might have been, whether by the mere receipt of the purchase-money, or by a more solemn act of release under seal, if such ratification had been without a knowledge of the facts, and in ignorance of her rights, it would be no obstacle to her obtaining relief. ¡But, on the contrary, when such act of ratification is done with deliberation, and with a knowledge of the fact which would avoid the sale, it is a bar to any relief which this court might otherwise have afforded.”

It is true that in this case no money was paid directly to the complainant as the price of the land, but in effect it was so paid, for the complainant was an heir-at-law and one of the creditors of the estate and the money was accounted for and paid and he received his share, whether in the shape of his claim against the estate, or in the shape of the- payment of the debts of the decedent, it seems to me matters not.

Chancellor Williamson cites, in support of his opinion, the case of Benson v. Bruce, 4 Des. 463, decided by the court of appeals of South Carolina, which held that the mere receipt by an adult of the price of land agreed to be sold by his mother during his infancy was a confirmation of the contract and bound him to convey in pursuance of his mother’s agreement.

The argument from Scott v. Gamble to the present case is a fortiori, for in that case the complainant was a helpless infant female at the time of the sale and was not chargeable either in fact or in law with knowledge of the facts of the case, which showed an actual contrivance by the husband of the executrix'to have the premises sold and conveyed to a third person as a figurehead, and by him to the husband. It was in fact somewhat similar, in some of its aspects, to Bassett v. Shoemaker, supra. The case was put by the learned chancellor solely on the ground of the acceptance of the purchase price by the complainants after they became of age with knowledge of the facts. As to the effect of complainant-standing by in silence while Captain Bailey made his improvements, I refer to Sumner v. Seaton, 2 Dick. Ch. Rep. 103 (at p. 111 et seq.), and authorities there cited.

I am of the opinion that the complainant’s case fails, and will advise that the bill be dismissed, with costs.


source: Caselaw Access Project

author: Pitney, V. C.

license: Public Domain

text:
    Frederick Gamm, Herman Walker et al. v. Samuel E. Renner.
    [Filed March 24th, 1900.]
    A printed blank deed for the conveyance of single lots contained the provision “ that the lot hereby conveyed is hot to be subdivided, and that no more than one residence is to be erected upon the same.” The owner of four adjoining lots conveyed two in one deed, and the grantee treated them as one lot and built a single dwelling. Afterwards the owner conveyed to him the other two, and inserted the letter “ s ” in the blank space after the word “ lot.” The grantor still owned a large number of lots in the vicinity. — Held, that he could enjoin the grantee from building two houses on the two lots last conveyed.
    Heard on pleadings and proofs in open court.

      Mr. Charles L. Corbin, for the complainants.

      Mr. Abel I. Smith, for the defendant.
   Pitney, V. C.

I think the question raised here is of considerable importance and should be disposed of promptly, and if I take the case home it may be some time before I can take it up for consideration. I have had an opportunity to think of it while the counsel were proceeding with the argument, and I will therefore dispose of it at once.

The bill is filed by Mr. Walker as the owner of several lots— over one hundred — on the Palisades overlooking the Hudson river, comprising a suburb called El Dorado. The property was bought by Walker at master’s sale, and either then or after-wards he procured it to be laid out in lots. And for the purpose of selling them at retail he had a deed prepared and printed in blank, which contained certain building restrictions, and among others, one important for present purposes is this:

“And tlie pax-ty of the second part doth hereby further covenant and agree to and with the parties of the first part, their heirs and assigns, for and in behalf of himself, his heirs and assigns, that the lot [there is a blank left for the letter “s”] hereby conveyed is,not to he subdivided, and that no more than one residence is to be erected upon the same.”

There are four lots in El Dorado adjoining each other, facing on Hudson Place, namely, lots 13, 14, 15 and 16. Lots 15 and 16 were conveyed by Mr. Walker, the complainant, to one Frederick Gamm, by deed dated September 12th, 1895, which described lots 15 and 16 by numbers referring to the map. In this deed, in the clause which I have already read, the word lot ” is left standing without any sign of plurality inserted— the letter s ” was not inserted. I have the original deed before me. And under that deed Mr. Gamm erected a single dwelling on lots 15 and 16, treating them as one lot. Subsequently, on March 27th, 1896 — six months later — the complainant conveyed to the same Frederick Gamm lots 13 and 14, adjoining lots 15 and 16 on the east, and fronting on the same street. They are described as lots 13 and 14 on the map, without any further description. Then the deed, which is the same blank precisely —printed blank — ’Contains the same language as the previous one to Gamm did, except that the letter “ s ” is put in after lot.” The language is that “ the party of the second part ”— that is, Gamm — “ hereby further covenants and agrees to and with the said parties of the first part, for and in behalf of himself, that the lots hereby conveyed is not to be subdivided, and that no more than one residence is to be erected upon the same.” Mr. Gamm, subsequently, in September of this year, conveyed these lots to the defendant in this cause, Mr. Renner. Mr. Renner commenced to erect two dwellings on the two lots — one on each — each lot being twenty-five feet front and a hundred and odd feet deep. As soon as it appeared from the work on the ground that he intended to erect two houses, Mr. Walker interposed his bill of complaint, and obtained a restraining order. There is no charge that Mr. Walker has been in laches at all, that he did not promptly proceed- to interfere by notice and by bill. The defendant comes in with affidavits in answer, and sets up a variety of matters about Mr. Walker’s dealing with other lots, which I think have nothing to do with the case.

The bill is here filed by Mr. Walker, the original owner and grantor, and the proof shows that he still is the owner of a large number of these lots; and the case is within the authority of Coudert v. Sayre, 1 Dick. Ch. Rep. 386. The cases that have given rise to difficulty of solution are those which arose between subsequent purchasers from the original covenantee and involved the question of abandonment or waiver of rights. That question has occupied the attention of the courts of England and of this country, especially .in this state, in the case of De Gray v. Monmouth Beach, 5 Dick. Ch. Rep. 329 (decided by Vice-Chancellor Green), and Trout v. Lucas, 9 Dick. Ch. Rep. 361. This case differs from those in that tire bill is here filed by the original grantor, and the considerations influencing the court in the cases just referred to do not apply, certainly not in the same degree. But I find, as a matter of fact, after listening to the affidavits and examining the documents which have been presented, that there is nothing that Mr. Walker has done, in my judgment, that at all detracts from his right to insert this clause in the’deed to Mr. Gamm, and to insist upon it as against this defendant.

I come down, then, precisely to the point where Mr. Corbin put it, that is, what is the meaning of this clause, and that depends on what is the meaning of the words the same,” the last words that I quoted from the covenant, . There were two lots conveyed that are spoken of here in the plural, and it says, “ lots hereby conveyed is not to be subdivided, and that no more than one residence is to be erected upon the same.” How these blanks were prepared for the conveyance of a single lot, and the difficulty arises out of the fact that two lots were conveyed by numbers. If the language had been a lot fifty feet front and one hundred feet deep, which comprises lots 13 and 14, I think there would have been no difficulty of construction, but the trouble arises out of the fact that they are spoken of in this very clause as “ lots,” and then it is covenanted that no more than one residence is to be erected upon the same. How, I am not ready to say that the question is not'without difficulty, but my opinion is that the construction claimed by the complainant is the true one, and that the restriction prevents the. erection of more than one dwelling. The words “the same” refer to the two lots, not to each of the lots. I think that is the better construction.

I therefore pronounce in favor of the complainant, and grant the injunction. I do this thus promptly so that if either party wishes to appeal, he will not have any trouble.


text:
    Lizzie Clayton v. Alonzo Clayton.
    [Submitted December 13th, 1899.
    Decided December 16th, 1899.
    Filed March 24th, 1900.]
    1. Where a husband, pending suit for divorce against his wife on the ground of adultery, seeks the society of his wife, and asks and obtains his marital rights, the decree will be set aside on a bill of review filed by the wife as quickly as reasonable diligence under the circumstances requires, though the husband has in the meantime contracted another marriage.
    2. Complainant, defendant’s divorced wife, was an illiterate person, very poor, and had two children to support. It appeared that she employed three different attorneys at different times after her husband had obtained a divorce from her for adultery, to obtain some redress because the husband, while the bill was pending, had exercised marital rights. — Held, that, under these circumstances, she exercised reasonable diligence in filing her bill of review in less than a year after the decree was signed, though the husband had in the meantime contracted another marriage.
    On bill of review.
    The defendant herein, Alonzo-Clayton, filed his petition for divorce against his wife, Lizzie Clayton, the complainant herein, on April 9th, 1897, charging her with adultery. She answered, denying the adultery, and the cause was brought to trial before a vice-chancellor on the 6th of July, 1897. After hearing counsel, the vice-chancellor took time to consider, and subsequently, on the 28th of August, wrote a letter to the respective counsel of the parties stating that.he would advise a decree for the petitioner. Such decree was presented to him on the 22d of December, 1897, and was advised by him, and was filed on January lOch, 1898, but the exact date of the signature of the chancellor may be in doubt, because it appears from • an inspection of the files that copies were sent to the solicitors on January 28th, 1898, which was, presumably, shortly after such signature.
    In December, 1898, the defendant, the wife (complainant herein), filed a petition, which was presented by a.different solicitor, for a rehearing, and upon. that petition; after notice to and.answer by the defendant herein, leave was granted to her to file a bill of review, which was done on the 22d of June, 1899. The defendant, Alonzo Clayton, answered, and the cause was brought to hearing on the 15th of September, 1899, and .the evidence closed on December 13th, 1899.
    The bill of review sets forth that on Sunday night, August .1st, 1897, less than four weeks after the trial, and nearly that length of time before the announcement of the .decision, the husband came to the house of the wife where.she was living, by herself with her children, and sought to have, and did have, sexual intercourse with her; that visit to the wife by the husband was repeated every night during that week, on which occasions he sought to have sexual intercourse with her, and did have sexual intercourse with her; that in the latter part of January, 1898, on the occasion of the death of a child, he again came to her house, and spent two nights in succession with her, and had sexual intercourse with her; and that at that time she did not have information that the decree for divorce had been made against her.
    These facts are denied by the answer, and the cause was brought to hearing thereon.

      Mr. David Harvey, Jr., for the complainant.

      Mr. Charles E. Cook, for the.defendant..
   Pitney, V. C.

It was not contended that a bill of review was not the proper remedy of the wife in this case, and I am satisfied that it is the proper remedy. Story Eq. Pl. §§ 404, 412.

The proofs show the following state of affairs: For some time prior to the trial of the original cause in July, 1897, the husband had been allowing his wife a weekly sum of $6 in the way of trade at a provision store. She rented a tenement, and supported herself and three children by manual labor — washing, &c. — and in the summer time rented out some of her apartments to cheap lodgers. These were persons who came to Asbury Park for the summer, some of them to work at various employments there and others for vacation. Shortly before the 1st of August, 1897, the husband withdrew the credit given to his wife at the provision store, and stopped his weekly support. On the night of the 1st of August he came to the house late in the evening, solicited and obtained from his wife marital rights for that night. He came the next night and again solicited marital rights, and she refused him unless he would renew his weekly allowance. This demand and refusal were kept up for almost every night during the week. The husband denies in the most positive manner any such solicitation or interview. But the facts are sustained, not only by the evidence of his wife, but by that of four credible persons, and I am constrained to believe that he has deliberately falsified in that respect.

On the 7th of August, 1897, his wife made complaint to a justice of the peace against her husband for non-support, and on the 12th the justice issued a warrant for Clayton, who was brought before him on the 13th or 14th, confessed his delinquency and entered into security for the payment to his wife of a weekly sum of money. How long that payment continued does-not appear.

On one of the last days of January, 1898, one of the children of the parties died, and notice was sent to the husband, who came to the house and stayed there most of the time till after the funeral, and the proof satisfies me that he slept two nights with his wife and had sexual intercourse with her. Tins he also denies, though .he admits that he did sleep in the house on that occasion.

It remains to determine what effect these facts .now have upon the decree already entered.

My recollection of the original case against the wife is that, after hearing counsel, my mind was in doubt as to what disposition should be made of the cause; I held it over, had the evidence Avritten out and came to the conclusion, not without some hesitation, that the case of the petitioner was made out. Iu fact, while I felt constrained to advise the decree, I also felt that I should have been much better satisfied if the case had been clearer on the evidence than it Ayas.

I am now well satisfied that if the case had been opened before decree signed, and evidence of Avhat occurred in August, 1897, had been produced before me, the effect upon my mind of the conduct of the husband Avould have been such that I should have had 'doubts Avhether he himself believed in his wife’s guilt, and if he himself, knowing the witnesses and knowing the circumstances, doubted it, or did not thoroughly believe it, the result would have been that I should have advised a dismissal of the petition, quite independent of the question of condonation.

Of course the deliberate act of the husband in seeking the society of the Avife and asking for and exercising his marital rights, after a full disclosure to him in court of the evidence of her previous infidelity, showed that he did not feel that he had been injured. It was a complete condonation of her guilt. She SAvears — but in that she is mistaken — that she did not know that any decree had been entered against her until after her child’s funeral. I am satisfied that she did hear of the decision of the cause shortly after it Avas announced to her counsel, and that she was informed by her then solicitor that the decree had been signed shortly before her child died.

In her bill of review she states that some time after the proceedings before the justice she called upon her counsel in the original cause, who is not her counsel in this cause, and stated the circumstance of her husband going back to her and enjoying her person, and was informed by him that it was too late to do anything inasmuch as the ease had been decided against her. Direct proof of this particular allegation of the bill of review was not offered on the trial, but I think that it may be inferred from other facts clearly proven that she did make such communication to her counsel. In fact, the developments at the trial show that the complainant, for some reason (probably she was mentally unable), did not put her present counsel in full possession of all the facts, and they, came out by piecemeal at the hearing. Certain letters from her original counsel to her were put in evidence, which show that she did consult that counsel from time to time before the decree was signed, and instructed him to take an appeal from the decree when it should be signed, and that she paid him a small sum of money on account of the expense of such appeal; that in November, 1897, he .wrote her that as soon as the decree was signed and filed he would proceed with the appeal. In January, 1898, he wrote her that the decree had been filed, and that the,appeal could now betaken, and asked her to send him more money for that purpose. On February 3d, 1898, just after the funeral of her child, she discharged her then counsel, and he returned to her a portion of the money she had paid him, and stated that he had withdrawn the appeal. Now I am well satisfied that while she was not asked the question on the trial in support of the allegation that she made known her marital connection with her husband to her then counsel, it is, as I have said, fairly infer-able that she did do so. Shortly after February 3d — how soon does not appeal’, but I am satisfied that it was during that month — she went with the few dollars — only $6 — which were returned to her by her previous counsel, to another counsel, Mr. S., paid him the $6, and laid all the facts before him, to wit, the marital intercourse that her husband had with her, and employed him to proceed against her husband. He undertook the employment, and promised to take legal measures in her behalf. But he did not do so. He frankly and properly admitted on the stand that he was at a loss what to do. She was poor, had • very little money, and he thought it was not worth while to go far away from home or expend much time or labor upon the matter, and hoped to have an interview with the vice-chancellor who heard the cause, and get from him some suggestions as to what course should be pursued. The complainant called upon him very frequently, urging him to proceed with the matter, but he failed to do anything. In the meantime, in the month of July, 1898, she consulted still another counsel, a Mr. G., about the matter, but just what advice she received from him does not appear. In the fall of 1898, just the date he cannot fix, she finally discharged Mr. S., and he returned to her the ■money that she had paid him. She then, shortly after that, employed her present solicitor, and he instituted proceedings, first by a petition for a rehearing of the cause, and then, upon the suggestion and leave of the court, filed the bill of review.

In the meantime the husband had married a second time, and the defence now made is that the rights of another person having intervened, the wife has been guilty of such laches as that the court should not afford her relief.

In considering this defence the situation and character of the complainant must be taken into consideration. She is an extremely illiterate and generally ignorant person, of high temper, and having an ill-regulated mind; very poor, with herself and two children to support by her manual labor, without any aid ; and hence she is not to be held to the same degree of diligence and care of her rights that a more intelligent sensible person, with command of sufficient pecuniary means, would be held. I think the case shows as much diligence on her part as can be reasonably expected from a person of her character and in her situation.

My inference from the whole of the facts is that the complainant did not herself know what effect the conduct of her husband had upon her rights as against him, and I doubt very much if some of the counsel that she consulted fully appreciated its effect or were able to devise a remedy for her in the premises. It is evident that she felt wronged and aggrieved by her husband, and felt that in some way the divorce was invalidated, and looked about in every direction for some redress against him, and was glad to adopt any measures to compel him to do her justice, but never succeeded in getting proper attention and advice until she met her present solicitor. I feel constrained to acquit her of laches in the sense in which that word is used in connection with intelligent capable persons who are able to take care of themselves.

But the fact still remains that no legal measures were taken on her behalf until the month of December, 1898, nearly a year after the decree of divorce was signed, and in the meantime her husband had married again, and the question is whether her right under a bill of review, if filed as quickly as reasonable ' diligence under the circumstances requires, is affected by the fact that there has been an intermediate marriage.

Now the statute gives all persons three years within which to appeal from any decree of this court, and I understand the law to be that a decree of divorce is not an exception. It is, of course, not open to dispute that a decree in a divorce case is appealable, no matter whether for or against the divorce, and the language of the one hundred and fourteenth section of the Chancery act is general, that all final decrees are subject to appeal for a period of three years. The result of that statute is that in a contested divorce case any person intermarrying with the party procuring the divorce enters into that relation subject to the. risk of an appeal being taken at any time within three years, and the decree being reversed. What the effect of such reversal under such circumstances would be upon the status of the second wife, and any children born from the marital intercourse, if the intermarrying took place a reasonable time after the signature of the decree and before appeal taken, it is not necessary to determine. Certainly, in such case, at the time of the marriage, the divorced spouse had a right to contract the marriage relation, and in case no appeal is taken, or in case of an appeal if the decree be affirmed, the marriage must be held to take effect from the day it is entered into. And yet, as I have observed, it seems perfectly well settled, and it has always been the sentiment of the bar of this state, that the rights of the incoming spouse to the continuance of the marriage relation, with all its incidents, is dependent upon the chances of an appeal being taken and the decree of divorce being reversed.

Now the lady who has intervened and married the defendant, Clayton, in this case entered into those relations subject to that risk for three years; and, if so, I cannot see that it is any hardship upon her to subject her to the risk of a bill to review the decree that was made within a less time than three years. She is, in law, presumed to be aware of, first, the danger of an appeal, and second, the danger of a bill of review.

I will therefore advise a decree that the'decree of divorce in this case be set aside and annulled. -

The defendant must pay the complainant’s costs, including a counsel fee of $50.


text:
    Bessie Pardee Van Wickle and Israel P. Pardee, executors and trustees, v. Marjorie Randolph Van Wickle, Augustine Van Wickle et al.
    [Submitted December 11th, 1899.
    Decided December 19th, 1899.
    Filed March 24th, 1900.]
    1. A devise of land in New Jersey under a will of a non-resident must be determined by the laws of New Jersey.
    2. Gem,. Stat. p. 3760 <S 19, providing that if a testator, having children when he makes his will, “ shall at his death leave a child ” bom thereafter, and not provided for by the will, such child shall have the same rights as though the father had died intestate, includes a posthumous child.
    3. The birth of a testator’s posthumous child, entitled under Gen. Stat. p. 3760 § 19 to take the same share as though his father had died intestate, does not destroy a devise in trust to the executor with power of sale.
    On final hearing on pleadings and proofs.

      The bill is filed by the executors under a will, against the devisees under a residuary clause thereof and a posthumous child of the testator, to determine the rights of the respective parties in a piece of valuable land situate in Morristown, New Jersey, of which the testator died seized.
    The principal question is whether the birth of the child after the death of the testator had the effect of destroying a devise in trust to his executors, with power of sale contained in the will.
    Augustus S. Van Wickle, at and for some time before his death, was a domiciled resident of the State of Pennsylvania, and died there on the 8th day of June, 1898, leaving a widow, Bessie Pardee Van Wickle, and a daughter, Marjorie Randolph Van Wickle, about fifteen years of age. His posthumous son, Augustine Van Wickle, was born on the 10th of November of that year.
    By his will, dated April 29th, 1896, after giving a considerable amount in money to various legatees, all of which has been paid or provided for out of the personal estate, the testator devised all the rest, residue and remainder of his estate, real and personal, whatsoever and wheresoever the same may be, to his wife, Bessie Pardee Van Wickle, one of the complainants, her heirs, successors and assigns forever, in trust, with a distinct power to sell, rent.and mortgage, and to hold the proceeds- in trust during the joint lives of his wife and his daughter, Marjorie Randolph Vau Wickle, and on the death of either, to the survivor, and further disposition' of the proceeds for the benefit of his wife and daughter.
    By codicil he appointed the other complainant, Israel P. Pardee, co-executor and trustee with his wife, giving them jointly the same powers as was given to his wife by the will.
    This will was executed with the formalities requisite in order to pass the title of real estate in New Jersey.
    Desiring to sell and convey the real estate in New Jersey, and doubts being raised as to the effect upon the power of sale of the birth of the posthumous child, the complainants filed their bill praying that their rights may be determined as above stated, and if it shall be held that the power of sale is destroyed by the event which lias happened, then that there may be a partition of the premises between the parties interested therein.

      Mr. Charles C. Blaeh, for the complainants.

      Mr. L. A. Thompson, guardian ad litem of infant defendants.
   Pitney, V. C.

I think the question presented is of easy solution. At the common law a will made by a husband was not revoked by the birth of a posthumous child, for the reason given, that he was presumed to have known of the possibility of such an event and to provide for it. This, however, has been changed in England, and most of the states of the Union, by statutory provisions. The devolution of the title to land situate in this state must be determined by the laws of this state, and o,ur statute provides for two distinct cases of posthumous children.

By the eighteenth section of the act concerning wills (Gen. Stat. p. 3760), it is provided

That every last will and testament' made when the testator had no issue living, wherein any issue he might have is not provided for or mentioned, if at the time of his death he leaves a child, children or issue, or leave his wife enceinte of a child or children which shall be born, such will shall be void, and such testator be deemed to die intestate.”

Clearly that section does not apply to this case, because here the testator had issue living at the time of making his will.

The nineteenth section provides as follqws :

“That if a testator having a child or children born at the time of making and publishing his last will and testament, shall, at his death, leave á child or children born after the making and publishing of his said last will and .testamant, * * * the child or children so after born, * * * if neither provided for by any settlement nor disinherited .by the said testator, shall succeed to the same portion of the father’s estate, as such child or children or descendants as aforesaid would have been entitled to, if the father had died intestate; towards raising which portion or portions, the devisees' and legatees or their representatives, shall contribute proportionably out of the 'part devised and bequeathed to them by the same will and testament.”

Ifc is apparent at once that this case is not within the strict terms of that section, if by the words “ leave a child or children born after the making,” &c., is intended that the child shall be born before the death of the testator. If the words “ leave a child” are satisfied by the existence of the child en ventre sa mere, then the case is within the statute.

The very case was before this court and dealt with by Chancellor Runyon in Wilson v. Fritts, 5 Stew. Eq. 59, and the chancellor held that the case was within the nineteenth section above recited. He does not, in his opinion, take notice of the language to which I have just called attention, nor give any reasons for holding that the words “ leave a child ” were satisfied by a child en ventre sa mere. But I adopt the conclusion of the chancellor, and heartily concur in it.

The present case, as well as that before the chancellor, is within the equity of the statute, and unless the construction he gives to it is adopted by the court, it would seem that the common law would prevail, and the after-born issue lose all rights under the will. That aspect of the case was not argued before me, and counsel who presented the case did not contend that it was possible to cut off the after-born child.

Then as to the continued existence of the power of sale, the well-settled rule in New Jersey seems to be that in such a case the will is only disturbed so far as is necessary to give the posthumous child its full share of the estate. The very section which gives him his right assumes that the testamentary disposition will not be disturbed in any of its provisions except to the extent necessary to provide for the after-born child.

This conclusion leaves the power of sale undisturbed and in ■ full force.

The result would have been different had the case fallen within the eighteenth section of the statute. Such was the case dealt with by the supreme court and the court of appeals of New York in Smith v. Robertson, 24 Hun 210, and 89 N. Y. 555. There the testator had no children at the time of his death, and the will, and a sale had by virtue of a power given under it, were both declared to be void.

I will advise a decree as against the posthumous child, Augustine Van Wickle, that the executors in this case have full power of sale. The question, what shall be done with the proceeds of sale — that is, whether one-half shall be retained in this state and preserved under the care of the court until the infant becomes of age, or shall be left in the hands 8f the executors, neither of whom are residents of this state, to be accounted for by them with the rest of the residue under the supervision of the courts of Pennsylvania — is not presented by the bill, and has not been discussed. Unless the parties choose to have that question settled before any decree is advised, it must be reserved in the decree, and they must be enjoined, in behalf of the infant, from removing the infant’s share — one-half—of the proceeds of the sale, from this state, without the further order of the court.


text:
    Charles Frederick Tepper v. The Supreme Council of the Royal Arcanum, Anna Worth et al.
    [Submitted December 4th, 1899.
    Decided December 21st, 1899.
    Filed March 24th, 1900.]
    1. While a beneficial association organized under an act authorizing it to pay benefits to certain relatives of deceased members may contract the classes of persons authorized to receive benefits within narrower limits than those prescribed by the statute, it cannot extend them.
    2. Beneficiaries named in a benefit certificate of a beneficial association have no vested right in the fund until after the decease of the member, since the latter has the right to change the beneficiaries at any time before his death.
    3. Act of Massachusetts, May 9th, 1877, as amended by act of 1882, authorizes the organization of beneficial associations for the purpose of assisting the “widows, orphans and other dependents or other relatives of deceased members, or any person dependent on deceased members.” — Held, that stepchildren of a member of an association organized under such acts were not included within any of the classes of persons authorized to take under such statute, and hence were not entitled to recover under a certificate designating them as beneficiaries The case of Bennett v. Van Riper, 2 Dick. Ch. Rep. 563, distinguished on the ground that the word “ relatives ” had, at the time of the legislation in question, been confined by judicial construction in Massachusetts to its strict meaning^
    4. Where stepchildren, named as beneficiaries in a benefit certificate, who could not take because they were not within the persons designated by the statute under which the association was organized, paid assessments on such certificate, in order to keep it alive, they are entitled to an equitable lien on the fund derived therefrom for the repayment of such assessments.
    Heard upon pleadings and proofs in open court, and the written arguments of counsel.
    The suit is in the nature of an interpleader. The holder of the fund in dispute is the defendant the Supreme Council of the Royal Arcanum; the contestants are the complainant, Charles F. Tepper, on the one side, and his five half-brothers and sisters, Anna Worth (formally Plondrick), Antoni Sieburg, Wilhelmina ■ Ranges, August Zuber and Wilhelm Zuber, on the other side.
    The nature of the contest will be best understood by a statement of the facts.
    In 1864 Mrs. Zuber was the widow, with five children, of one Joseph Zuber, and in that year married William Tepper, and bore him' the complainant, Charles Frederick Tepper. The children of the former marriage (the oldest of whom was born in 1853, and the youngest in 1860) lived with Mr. and Mrs. Tepper, and formed a part of their family, going to school until they were fourteen years old or thereabouts, and after that working out and assisting to support the family; but previous to the year 1885 all had been married and had left their parents’ home.
    In the year 1885 William Tepper made an application in writing to the Royal Arcanum, Hoboken Council No. 99, for a full-rate memership in that council, which application was in these words:

      “Application for Membership in the Eoyal Arcanum.
    “Town of Union, April 28th, 1885.
    “ To the officers and members of Hoboken Council No. 99, Royal Arcanum, located at Odd Fellows Hall Hoboken, N. J.:

    “Having become acquainted with the objects of your Order, I hereby make application for full rate membership in your Council, and do declare, upon my honor as a man, that the statements by me subscribed herein are each and every one of them true, to the best of my knowledge and belief. I am’not now a member of this Order; I have not, within six months, been rejected; am not now under suspension, and have never been expelled from any Council of this Order; and am a believer in a Supreme Being.
    “I reside at No. 79 Gardner street, town of Union, State of New Jersey. I was born on the 11th day of February, 1835, and am between 50 and 51 years of age. My occupation is that of agent. Place of business, No. 79 Gardner street.
    “I direct that, in case of my decease, all benefit to which I may be entitled from the Eoyal Arcanum, be paid to Anna Plondrick, Antonette Sieburg, Wilhelmiene Eanges, August Zuber, Wilhelm Zuber, Friedrich Tepper, related to me as my children, subject to such future disposal of the benefit, among my dependents, as I may hereafter direct, in compliance with the laws of the Order. 1 am temperate in my habits, and have no injury or disease which will tend to shorten my life, am now in good health and am able to gain a livelihood. I do hereby consent and agree that any untrue or fraudulent statement made above, or to the medical examiner, or any concealment of facts by me in this application, or my suspension or expulsion from, or voluntarily severing my connection with the Order, shall forfeit the rights of myself and my family, or dependents, to all benefits and privileges therein.”
    The persons therein named as his children were the five children of his wife by her former marriage and the complainant.
    Pursuant to that application a benefit certificate was issued to him dated at Boston, Massachusetts, the 8th of July, 1885, as follows:
    “No. 63761. $3,000.
    “Eoyal Arcanum Benefit Certificate.
    “This certificate is issued to William Tepper, a member of Hoboken Council No. 99, Eoyal Arcanum, located at Hoboken, N. J., upon evidence received from said Council that he is a contributor to the Widows’ and Orphans’ Benefit Fund of this Order; and upon condition that the statements made by him in his application for membership in said Council, and the statements certified by him to the Medical Examiner, both of which are filed in the Supreme Secretary’s office, be made a part of this contract, and upon condition that the said member complies, in the future, with the laws, rules and regulations now governing the said Council and fund, or that may hereafter be enacted by the Supreme Council to govern said Council and fund. These conditions being complied with, the Supreme Council of the Royal Arcanum hereby promises and binds itself to pay out of its Widows’ and Orphans’ Benefit Fund to Anna Plondriek, Antonette Sieburg, Wilhelmiene Ranges, August Zuber, Wilhelm Zuber and Friedrich Tepper (children), a sum not exceeding three thousand dollars, in accordance with and under the provisions of the laws governing said fund, upon satisfactory evidence of the death of said member, and upon the surrender of this certificate; provided that said member is in good standing in this order at the time of his death, and provided also that this certificate shall not have been'surrendered by said member, and another certificate issued at his request, in accordance with the laws of this order.

      “ In witness whereof,” &c.
    Mrs. Tepper pre-deceased her husband, and he died in 1898. At the time of his death the certificate was in the possession of the husband of one of the stepdaughters, but was produced at the hearing.
    The Royal Arcanum was organized in Massachusetts on the 5th of November, 1877, under the provisions of an act of the legislature of that state, dated the 9th of May, 1877, which provides that such organizations
    “ may, for the purpose of assisting the widows, orphans or other dependents of deceased members, provide in their by-laws for the payment by each memter of a fixed sum, to be held by such association until the death of a member occurs, then to be forthwith paid to the person or persons entitled thereto, and such fund so held shall not be liable to attachment by trustee or other process; and associations may be formed under said act for the purpose of rendering assistance to the persons and in the manner above specified.”
    The second section of .the act provides that the general laws relating to life insurance companies shall not apply.
    By a supplement passed in.1882 it is provided that
    “A corporation organized for any purpose mentioned in section two may, for the purpose of assisting the widows, orphans or other relatives of deceased members, or any person dependent upon deceased members, provide in its bylaws for the payment by each member of a fixed sum, to be held by such association until the death of a member occurs, and then to be forthwith paid to the person or persons entitled thereto,” &c.

      The Royal Arcanum was organized in November, 1877, shortly after the passage of the act first above cited, and the certificate of organization given by the secretary of the commonwealth, recited one of its objects to be:
    “Assisting the widows and orphans of deceased members, establishing a fund for the relief of sick and distressed members, and one for a widows’ and orphans’ benefit fund.”
    There was no distinct proof given as to the precise language used in the first constitution and by-laws of the association, but in 1884, two years after the act of 1882, it adopted an amended constitution and by-laws.
    The constitution then adopted declares that one of its objects is

      “To establish a widows’ and orphans’ benefit fund, from which, on the satisfactory evidence of the death of a member of the order, who has complied with all its lawful requirements, a sum not exceeding three thousand dollars shall be paid to to his family or those dependent on him, as he may direct.”

    And the third by-law provides as follows:
    “ Sec 2. (1) Each applicant shall enter upon' his application the name or names and relationship or dependence of the members of his family or those dependent upon him, to whom he desires his benefit paid, and the same shall be entered in the benefit certificate according to said direction.
    “ (2) No benefit shall be made payable to any person or persons permanently residing outside the limits of the United States or Dominion of Canada.
    “ (3) When no relation by marriage or consanguinity is shown, in the direction for payment of a benefit, proof of dependency must be furnished satisfactory to the Supreme Seoretary, before the benefit certificate is issued.
    “Sec. 3. (1) A member may, at any time, when in good standing, surrender his benefit certificate and a new certificate shall thereafter be issued, payable to such beneficiary or beneficiaries as such member may direct, in accordance with the laws of the order, upon the payment of a fee of fifty cents.”
    In 1891 the constitution and by-laws were again amended, stating the object of the widows’ and orphans’ fund, as follows:
    Constitution, article V.:
    “ To establish a Widows’ and Orphans’ Benefit Fund, from which, on the satisfactory evidence of the. death of a member of the order, who has complied with all its lawful requirements, a sum not exceeding three thousand dollars shall be paid to the wife, children, relatives of, or persons dependent wpon such member, as limited and described in the lewis of said order relating to benefit certificates, as he may direct in accordance with said laws.”

    And in the general by-laws adopted at that time, chapter second, as follows:
    “ Sec. 323. Each applicant shall enter upon his application the name or names, residence and relationship or dependence of the person or persons of the classes in the next section embraced, to whom he desires his benefit paid, and the same shall be entered in the Benefit Certificate according to said direction.
    “ Sec. 324. A benefit may be made payable to any one or more persons of any of the following classes only:

      Class First.

      “ Grade 1st. Member’s wife.
    “ 2d. Member’s children, and children of deceased children.
    ‘‘ 3d. Member’s grandchildren.
    “ 4th. Member’s parents.
    “ 5th. Member’s brothers and sisters of the whole blood.
    “ 6th. Member’s brothers and sisters of the half blood.
    “ 7th. Member’s grandparents.
    “ 8th. Member’s nieces and nephews.

      “ 9th. ■ Member’s cousins in the first degree.
    “ 10th. Member’s aunts.

      “ 11th. Member’s uncles.
    “ 12th. Member’s next of kin who would be distributees of the personal estate of such member upon his death intestate.

      “ In either of which cases no proof of dependency of the beneficiary shall be required.

      “ Class Second.

      “ To an affianced wife, or to any person who is dependent upon the member for maintenance (food, clothing, lodging or education); in either of which cases written evidence of the affianced relation or dependency, within the requirements of the laws of the order, must be furnished to the satisfaction of the Supreme Secretary before the benefit certificate can be issued.
    “Sec. 330. If at the time of a death of a member, who has designated as beneficiary a person of Class Second, the dependency required by the laws of the order, shall have ceased, or shall be found not to have existed, or if any designation shall fail for illegality, or otherwise, then the benefit shall be payable to the person or persons mentioned in Class First, Sec. No. 324, if living, in the shares and order of precedence by grades as therein enumerated, the persons living of each precedent grade taking, in equal shares per capita, to the exclusion of all persons living of subsequently enumerated grades ; except that in the distribution among persons of grade second the children of deceased children shall take by representation the share the parent would have received if living. If no one of said Class First shall be living at the death of the member, the benefit shall revert to the Widows’ and Orphans’ Benefit Fund.”
    By the constitution and by-laws adopted to take effect August 1st, 1897, it was provided as follows :
    “5th. To establish a Widows’ and Orphans’ Benefit Fund, from which, on the satisfactory evidence of the death of a member of the order, who has complied with all its lawful requirements, a sum not exceeding three thousand dollars shall be paid to the wife, children, relatives of, or persons dependent upon such member, as limited and described in the laws of said order relating to benefit certificates, as he may direct in accordance with said laws.”
    And in the by-laws:
    “Sec. 323. Each applicant shall enter upon his application the name or names, residence and relationship or dependence of the person or persons of the classes in the next section embraced, to whom he desires his benefit paid, and the same shall be entered in the benefit certificate according to said direction.
    “Sec. 324. A benefit may be made payable to any one or more persons of any of the following classes only :
    “ Glass First.

    “Grade 1st.Member’s wife.
    “ 2d.Member’s children, and children of deceased children.
    " 3d.Member’s grandchildren.
    “ 4th.Member’s parents.
    Member’s brothers and sisters of the whole blood.
    * 6th.Member’s brothers and sisters of the half blood.
    Member’s grandparents.
    “ 3th.Member’s nieces and nephews.
    “ 9th.Member’s cousins in the first degree.
    “ 10th.Member’s aunts.
    “ 11th.Member’s uncles.
    “ 12th.Member’s next of kin who would be distributees of the personal estate of such member upon his death intestate.
    “In either of which cases no proof of dependency of the beneficiary designated shall be required.

      “Glass Second.

      “ To an affianced wife, or to any person who is dependent upon the member for maintenance (food, clothing, lodging or education); in either of which cases written evidence of the affianced relation or'dependency, within the requirements of the laws of the order, must be furnished to the satisfaction of the Supreme Secretary before the benefit certificate can be issued.
    “ Sec. 329. No benefit shall be payable to a person or persons of Class Second, mentioned in Sec. No. 324, unless the dependency therein required to be shown exists at the time of the member’s death; in which case proof of such dependency at the member’s death shall be furnished in writing to the satisfaction of the Supreme Regent, whose decision thereon shall be final and conclusive upon all parties in interest before payment of the benefit shall be made.
    “ Sec. 330. If, at the time of the death of a member, who has designated as beneficiary a person of Class Second, the dependency required by the laws of the order shall have ceased, or shall be found not to have existed, or if the designated beneficiary is his wife, and they shall be divorced upon the application of either party, or if any designation shall fail for illegality or otherwise, then the benefit shall be payable to the person or persons mentioned in Class First, Sec. No. 324, if living, in the shares and order of precedence by grades as-therein enumerated, the persons living of each precedent grade taking, in equal shares per capita, to the exclusion of all persons living of subsequently enumerated grades; except that in the distribution among persons of grade 2d the children of deceased children shall take by representation the share the parent’would have received if living. If no one of said Class First shall be living at the death of the member the benefit shall revert to the Widows’ and Orphans’ Benefit Fund.”
    The proofs show that in' the latter years of his life Mr. William Tepper was unable to keep up the monthly dues on his certificate of membership, and some of his stepchildren assisted him in so doing, and that the certificate was handed to the husband of one of the stepdaughters, upon au understanding which indicated that it was a pledge for the moneys advanced, or at least as security that it would not be surrendered and the names of the beneficiaries changed.

      Mr. J. Emil Walschied, for the complainant.

      Mr. Rud,olp>h F. Robe, for the stepchildren.

      Mr. W. Iiolt Apgar, for the Royal Arcanum.
   Pitney, V. C.

Counsel for complainant advances three propositions:

First. That the use of the word “ children ” in describing stepchildren in the application for membership was, if not a fraud, at least such a misdescription as prevents the insertion by the Royal Arcanum of their names in the certificate of membership from having the eifect of an acceptance and approval of them by the society as proper beneficiaries.

Second. That under the Massachusetts statute of 1877, under which the Royal Arcanum was organized, as amended in 1882, and under- the constitution and by-laws made by the society in pursuance thereof, as they stood in 1885, it was not competent for the member to designate his stepchildren as beneficiaries to take the fund in question at his death, for the reason that they were not within the scope of the language used in the original act — “ widows, orphans, or other dependents of deceased members” — nor within the enlarged language used in the amendment of 1882, namely, “ widows, orphans, or other relatives of deceased members, or any person dependent upon deceased members;” nor within the scope of the language of the certificate of incorporation issued by the executive authority to the Royal Arcanum (which is in the nature of a charter), where the objects are recited to be, “assisting the widows and orphans of deceased members;” nor within the words found in the constitution of the order, which provides for raising a sum not exceeding $3,000 to be paid to the “ family of a deceased member, or those dependent on him, as he may direct; ” nor within the language of the bylaws, which describe the persons who may be named as beneficiaries.

Third. He contends that if it be possible to include stepchildren within the field defined by the statute, constitution and by-laws as they stood in 1885, yet the application for, and the certificate of, membership, by the terms of each, provide for a change in “ the laws, rules and regulations governing the council of the Royal Arcanum and fund,” and that such change was made in the constitution and by-laws of 1891, which clearly exclude stepchildren.

Counsel for the stepchildren, in answer to the first two positions, contends that stepchildren are “ children,” and, hence, orphans, within as well the language of the statute and the language of the executive certificate, as also within the language of the constitution of the society, which speaks of Widows’ and Orphans’ Benefit Fund, and the accumulation of money to be paid to the member’s family or those dependent on him as he may direct.”

Their counsel relies mainly upon the act of 1882, which enlarges the scope of the original act, and provides that a corporation like the Royal Arcanum may provide in its by-laws for the payment to each member of a fixed sum for the purpose of “ assisting the widows, orphans or other relatives of deceased members, or any person dependent upon deceased members.” The enlargement of the power being found in the words “ or other relatives,” and he contends that the words “ other relatives” include relatives by affinity, as well as those by consanguinity, and that stepchildren are such children by affinity.

It is perfectly well settled.that it is not within the power of an association organized under this act to pay any benefits to any person designated who does not come within the field of the limits set by the Massachusetts act. A benefit society may, indeed, contract its field within narrower limits than those laid down by the statute, but it cannot exceed them. American Legion of Honor v. Perry, 140 Mass. 580, where a benefit society organized under the act in question was under consideration; Golden Star Fraternity v. Martin, 30 Vr. 207; American-Legion of Honor v. Smith, 18 Stew. Eq. 466; Britton v. Royal Arcanum, 1 Dick. Ch. Rep. 102; S. C. affirmed on appeal, 2 Dick. Ch. Rep. 325.

It is further well settled that the beneficiaries named by the member of the order have no vested right, in the fund until after the decease of the member, for the latter ha's the right to change the beneficiaries at any time before his death. Golden Star Fraternity v. Martin, 30 Vr. 207 (at p. 215); Masonic Mutual Benefit Association v. Tolles, 70 Conn. 539 (Supreme Court, Connecticut); Legion of Honor v. Adams, 68 N. H. 236 (New Hampshire).

It is further well settled that in ascertaining the true construction of the by-laws, which fix the limits of the field from which the beneficiaries may be chosen, the statute' authorizing the organization, the certificate .of organization and the constitution and by-laws are to be construed with reference to each other. Chief-Justice Magie, in 30 Vr.214, says: “The contract between the association and its beneficiary members is to be discovered in such a case from the beneficiary certificate to be issued to the member, read with the rules and by-laws of the association and the statute from which it obtained its corporate powers. The contract, when discovered, is to be construed and given force and effect as other contracts upon a similar subject.” And Mr. Bacon, in his treatise, after an examination of numerous authorities, states his conclusion thus :

“The conclusion, from an examination of all the cases, is that the contract is found in the certificate, if one is issued, but is to be construed and governed by the charter and by-laws of the society and the statutes of the state of the domicile of the corporation.” Bac. Ben. Soc. § 161.

But for the act of 1882, I think that the first two questions raised would be scarcely debatable. I think that stepchildren do not come at all within the scope of the designation in the act of 1877, or in the constitution and by-laws of the association. In designating the relationship between the beneficiaries and the deceased member they are spoken of as “ widows, orphans or other dependents of deceased members.” By “ orphans ” is there meant the children, in the proper sense of the word, of the deceased member’. The primary sense of “children ” is offspring, and that is the sense in which it is ordinarily used when a question of relationship is involved. It is, indeed, often applied by an elderly person as a word of endearment or affection to one younger, where no relationship whatever exists, but it cannot be properly held, when found in a statute or contract, to include stepchildren. JSTor were either of the stepchildren in this case dependents upon the member at the time this contract was made. They had all left their home with the mother and stepfather, and were rather, as the evidence tends to show, contributors to the support of the member than dependent upon him for support.

The by-laws in force in 1885, the date of this contract, do not in terms go beyond the three classes mentioned in the statute— widows, orphan children, and persons dependent upon the member. The third by-law provides that the applicant shall enter upon his application “ the name or names and relationship or dependence of the members of his family,- or those dependent upon him,” to whom he desires the benefit paid. Now, the word “ relationship” there evidently refers to the connection between him and the member or members of his family upon whom the benefit is to be conferred.

The language used in the third subdivision of this by-law is relied upon to show a wider scope. But I think it is insufficient for that purpose. It says: “ When no relationship by marriage or consanguinity is shown in the direction for the payment of a benefit, proof of dependency must be furnished.” Now, the “relationship by marriage” there referred to was manifestly intended to refer to the wife, who, -if she survived the member, would become a widow; and by “consanguinity” is evidently intended blood relationship. That subdivision simply means that in the absence of the naming of a wife or children as beneficiaries, the proof of dependency must be furnished.

But it is important to ascertain the force of the words ■“ other relatives ” found in the act of 1882. To this end it is proper to inquire what force has been given to that language found in other statutes of Massachusetts by the courts of that state, and in that examination we find two remarkable cases. The first is Esty v. Clark, 101 Mass. 36 (1869). There the testator had married a widow with one child, a son. By his will he gave all his property to his wife. She died in the same accident with the testator, but before he did, and her son by her former husband claimed one-half of the property which she would have taken under her husband’s will, under a clause of the statute of Massachusetts which provided that

“ when a devise of real or personal estate is made to a child or other relation of the testator, and the devisee dies before the testator, leaving issue who survive the testator, such issue shall take the estate so devised, in the same manner as the devisee would have done if he had survived the testator;”

and it was held that the stepson of the testator could not take any share of testator’s estate which would have gone to his mother if she had survived his father, because his mother was not a relation of the testator in the sense in which that word was used in the statute.

The next case is Kimball v. Story, 108 Mass. 382 (1871). There a woman had married a widower with one son ’named William B. J. Johnson, and then survived her husband, receiving a large amount of property from him. By her will she devised all the rest and residue of her estate “to my son, William B. J. Johnson, his heirs, executors, administrators and assigns.” William B. J. Johnson died after the making of the will, but before the testatrix, leaving one son, William Johnson ; and the question was between William Johnson, as representative under the statute cited in the preceding case, and the next of kin of the testatrix; and it was held by Mr. Justice Gray, after a full examination of the authorities, that the legacy lapsed by the death of the stepson in her lifetime, using this language, after stating the general rule that at the common law all legacies to persons who die before the testator or testatrix lapse: “ The only exception, created by statute, to the general rule, is where a devise or bequest is made Go a child or other relation of the testator,’and includes only relations by blood, and not connection by marriage, even a husband or wife,” citing Esty v. Clark and other cases. “The necessary conclusion is that the legatee being only a stepson of the testatrix, the legacy lapsed by his death.”- And farther on: “The fact that the testatrix called the legatee her son and had long lived with him as such, and that a considerable part of the property bequeathed to him had come to her from his father, cannot affect her absolute power to dispose of her property, or the rules of law by which her testamentary dispositions are to be governed.”

This construction having been given to the words “relative” and “relation” by the supreme court of Massachusetts a few years previous to the passage of the amendment of 1882, the presumption is that the word “relatives” was there used in its strict sense as relatives by consanguinity, and not by affinity; and, as we have seen, there is nothing in the constitution and by-laws, adopted in 1884, that indicates that the counsel who assisted the Royal Arcanum in preparing the amended constitution and by-laws of 1884 put any wider or different construction upon the language in question.

Defendants’ counsel relies, in this part of the case, upon the decision of our court of errors and appeals, in Bennett v. Van Riper, 2 Dick. Ch. Rep. 563. There the words “ related to ” were construed by that court to include relatives by affinity, but they were found, not as here, in a statute, but in the constitution and by-laws of an association organized under an act of the legislature of the State of Indiana, and the court was not considering the construction of a statute of that state. It does not appear that the statute of Indiana contained any limitation of the field from which the benefit association might permit its members to choose, and the attention of the court was confined entirely to the contract between the parties contained in the relief fund by-laws of the association; while here we have to construe the force of a word used in the statute of a state, which, by its highest authority, has given to that word, when used in a statute, a particular and restricted meaning.

And then I think that the careful enumeration of the classes from which beneficiaries might be designated, found in the bylaws of 1891, has some significance. It is quite clear that those cannot be construed as including stepchildren, and no motive has or can be suggested for the council of the Royal Arcanum, desiring at that time to narrow the field and exclude any class of persons which their former by-laws had included.

The conclusion is that the contract between William Tepper and the Royal Arcanum cannot be construed as authorizing him to designate his stepchildren as beneficiaries under his certificate of membership; that the certificate of membership in which their names were inserted as beneficiaries was so issued upon the representation that they were the member’s offspring, and that stepchildren were not included in the class of persons among which, according to the constitution and by-laws of the association beneficiaries could be chosen and received.

This result renders it unnecessary to consider the third proposition of the complainant, namely, that granting the stepchildren were properly and lawfully accepted by the Royal Arcanum and named as beneficiaries in the certificate of membership, yet the council had the right by subsequent amendment of their constitution and by-laws to exclude them, and that they did so by the by-laws of 1891.

The proofs tended to show that some small sums of money were advanced by one or more of the stepchildren toward paying the annual dues of Mr. Tepper in the last years of his life. I am of the opinion that the parties advancing these sums have a lien in equity upon the fund for the repayment of the amount so advanced.

The costs will be disposed of precisely as if the Royal Arcanum had filed an interpleader bill. It is entitled to its costs out of the fund, with a counsel fee to its counsel, and the amount so deducted from the fund will be added to the complainant’s costs, and recovered against the other defendants, the stepchildren, and be set off against such sum as shall be ascertained to be due to them, or either of them, for moneys advanced to pay the annual dues. I think the complainant is entitled to costs, because he has substantially succeeded in his suit.