author: Bergen, J.

text:
    In the matter of the paper-writings purporting to be the last will and testament and codicil thereto of Julia H. Chadwick, deceased.
    [Submitted June 24th, 1912.
    Decided November 18th, 1912.]
    Neither the prerogative court, nor any of the surrogates, of this state have general jurisdiction to admit to probate the last will and testament of a non-resident having a domicile at the date of his death in another state, although decedent leave property in this state, except as ancillary to a probate by the courts of the locality of such domicile.
    On appeal from a decree of the prerogative court advised b3r Vice-Chancellor Walker, whose opinion is reported ante ¶. IBS.

      Mr. Richard Boardman and Mr. Robert II. McCarter, for the appellants

      Mr. Gilbert' Collins, for the respondents.
   The -opinion of the court was delivered hv

Bergen, J.

The substantial question on this appeal is whether the surrogates of our several counties, or the prerogative court, have jurisdiction to grant original probate of a will of a non-resident testator domiciled in a sister state at the time of his death.

While the precise question raised by the record relates to the power of a surrogate to admit srjch will to probate, the jurisdiction of the prerogative court in a like case is so connected with the principles of law involved, that it was of necessity argued and should be disposed of in limitation of further litigation of substantially the same matter, for if it should be decided that the surrogate is without jurisdiction, leaving undecided the other question, the proponents could present this will to the ordinary or surrogate-general and thus relitigate a question as to which they have had their day in court, because the real question argued and to be disposed of is the effect of a testator’s domicile upon the jurisdictional right of a foreign court to grant original probate of his will.

The facts arc within a narrow compass, and for the purposes of this ease all that need be recited is that Julia H. Chadwick died leaving a last will; that her domicile was East Hampton, in the State of New York; that the executors who offered the will for probate resided in the State of New Jersey, having in their possession in the county of Hudson personal property belonging to testatrix; that two of the executors named, the third having renounced, caused the will and codicil to he admitted to probate by the surrogate of the county of Hudson, from which the1 daughter of testatrix appealed to the orphans court of Hudson county where the order of the surrogate was sustained. The decree was reviewed on appeal to the prerogative court where it was decided, upon the advice of the vice-ordinaiy, that the surrogate was without jurisdiction and from that decree the proponents have appealed to this court.

The real purpose of the probate is to ascertain whether the deceased left a will, and if so, the appointment and qualification of the person -who may he» entitled to manage the estate and execute the testamentary directions, which is, generally speaking, the province of the courts of the domicile of the testator, and before that right he exercised by the courts of this state, it should at least appear that the law authorizes it, for it may he fairly assumed tiiat such a course of procedure was not within the expectation of the testator who ordinarily prepares and executes his will according to the law of his domicile, where he may fairly presume it will be admitted to probate, and where all disputes concerning its due execution will be heard.

Again, the heirs and next of kin are not presumed to know in which of many jurisdictions the testator has left property, and if personal property in airy location is sufficient to give jurisdiction to probate, they would in most cases be deprived of the opportunity to dispute the due execution of the will, or to raise any legal objection to its probate, for a caveat filed at the domicile would have no,effect in a foreign jurisdiction.

We think that upon general principles the cine administration of justice demands that last wills should be first probated at the domicile of á testator, and that this rule should prevail in this state, unless the law expressly confers on the ordinary or surrogates probate jurisdiction over wills of non-residents. In disposing of this matter we will first consider the statutory authority of a surrogate relating to the probate of last wills and testaments.

It majr be conceded that prior to the constitution of 1844 the-surrogates of the different counties of the state were .but deputies of the ordinary or surrogate-general, but even then their power and authority was limited by statutes to the county for which they were appointed. This the ordinary held, in the'matter of Abraham Courseris Will, decided in 1843 (4 N. J. Eq. (3 Gr. Ch.) 408), permitted a surrogate to probate foreign wills, and that the limitation of povyer had relation to the locality within which he might exercise his power, although operating upon a subject-matter arising out of his eountj^, and therefore the surrogate might admit a foreign will to probate, and if he should do so for one executor, the ordinary might also grant probate for another, upon his separate application. The learned ordinary did not express any opinion as to what the situation would be if he took a different view from the surrogate and refused probate to the second applicant, the surrogate,- his subordinate, having already allowed it for the other.

The reasoning leading to the result declared is so illogical that we c-aunot concede its soundness, for if the statute limiting the power of the surrogate to the county for which he was appointed was not a limitation to matters arising in his county, but gave general jurisdiction over such matters arising anywhere in the state, of in the Fnited States, provided he was within the confines of his own county when he acted, he would have power to probate every will of every decedent without regard to domicile in or out of the state, and once having taken jurisdiction, the ordinary, being thereby deprived of all power except to review on appeal, the office of the surrogate might become of greater magnitude than that of the ordinary. This situation cannot be reached except by pursuing an inaccurate line of reasoning-, inconsistent with the purpose of the statute limiting his power to the county for which he ivas appointed.

Rut in 1844 the surrogate was made a constitutional officer and the method of his selection provided for, which was thereafter to be election by popular vote. This divorced him fijpm his former status as deputy and made him am independent officer, whose duties were fixed by the legislature in the revision of 1840, which, among other things, provided that there should be but one surrogate elected in each county “and the power and authority of the surrogate shall he limited to the county in which he is or shall be elected.” Rev. 1846 p. 827, and this act has never been repealed. Comp. HLat. p. 5056. We have no doubt rhat this statute was intended to, and does, limit the jurisdiction of the surrogate to matters arising in his particular county, and does not grant a general jurisdiction to admit to probate the wills of non-residents of state or county. As to wills of residents of this state his jurisdiction is now by statute expressly limited to cases where the testator resides in his county at the time- of death, section 14 of the act relating to orphans court. P. L. 1898 p. 715.

Certainly, since, the constitution of 1844, the surrogate has no implied or derivative powers and can only exercise those granted hy the legislature, and it has not conferred on surrogates the power to probate wills of non-residents. Therefore, without íegard to the question of the primary right of the courts of the locality of the domicile of a non-resident testator to probate his will, our statute does not cnrooiver a surrogate to assume jurisdiction in such cases, and therefore the power does not exist, and-the action of the surrogate in this proceeding was without lawful warrant.

There are statutes providing that the surrog-ate may record wills where they have been admitted to probate In a foreign jurisdiction, and also in aid of creditors, and perhaps for other purposes, but they have no hearing on the question now under consideration. We are, therefore, of opinion that the learned vice-ordinary correctly decided that a surrogate had no authority to grant original probate of foreign wills. The learned vice-ordinary, however, constrained by cases not having the approval of this court on the question at issue, but which he felt bound reluctantly to follow, held that if a decedent leave property in this state, original probate of his will may he allowed here. As he denied the right of the surrogate to probate a foreign will in the first instance, it follows that when lie said that such will could be proven in this state if decedent left property in this state, he must have had in mind the ordinary as the seat of such power; if this he so, we do not agree with the conclusion, and are of opinion that the prerogative court has no such power, and that its original jurisdiction over the probating of wills is confined to those of decedents domiciled in this state at the time of death, and this notwithstanding there may he property of the non-resident in this state.' The comity which should be observed between states would seem to require that the courts of the state of the domicile of a testator should be first permitted to pass upon the question whether its citizen has made a will according to the law of his domicile.

The power to regulate the jurisdiction of the ordinary was assumed by the legislature in 1784 by an act passed December 16th (Pat. L. p. 59), which recited that—

“Whereas it is necessary that the power and authority of the ordinary of the sta,te, and his surrogate, should be defined, the jurisdiction of the prerogative court regulated, and an orphan’s' court established in the several counties of this state; therefore, I. Be it enacted by the council . and general assembly of this state, and it is hereby enacted by the authority of the same, that, from and after the passing of this act, the authority of the ordinary shall extend only to the granting of probates of wills, letters of administration, letters of guardianship, and marriage licenses, and to the hearing and finally determining of all disputes that may arise thereon.”

On June 13th, 1820 (Rev. Laws 776), this was re-enactcd, except that the words “marriage licenses” were omitted. This, and other statutes regulating the jurisdiction of the ordinary, remained in force until by the adoption of the constitution in 1844, the powers of the ordinary were conferred on tíre chancellor, and it must be assumed that they were so transferred subject to the right of regulation, which the legislature had exercised for sixty years, and that such was the contemporaneous construction, is manifested by the act of the legislature in enacting the statute ■of 1846 (Rev. p. 203), the first section of which is in the precise form of the act of 1830, while the second section forbids the ■ordinary granting probate until

'“proof be made to his satisfaction that no caveat against proving such” will hath been filed in the office of the surrogate of the county where the testator resided at the time of his death, or that notice had been given to ail persons concerned of the application to the ordinary for such probate.”

The right of the legislature to regulate the jurisdiction of the ordinary has been exercised unchallenged for over a century and has thereby become a fixture in our jurisprudence. An examination of our statutes show that in the act of 1713 (Rev. Laws 7), provision was made for the reception in evidence of a duly-certified copy of wills duly proven in the kingdom of Great Britain •or any of its colonies, and that such provision has been continued by the same or different methods to the present time, so that from ancient times no necessity required that the ordinary should he vested with the power to probate the wills of non-residents. It is equally clear that no such express power has been given by statute, and wherever assumed it had been upon the alleged .ground of a prerogative power, a claim which has no legal foun'■dation in this state, for it cannot be assumed that when the legislature undertook to limit the power of the ordinary and confined it among other things to the probating of wills, they were dealing ■with subject-matters arising outside of their jurisdiction.

The piain, common sense moaning to he given to the act is that . the ordinary was limited to the probating of wills of those domiciled within the state, which was the limit of his jurisdiction. If this be not so, his power is unlimited, for the statute does not make his right dependent upon property. It confines his power to the granting of probate of wills, and if this does not limit it to persons domiciled in the state, it becomes universal irrespective •of property rights.

No good reason can be advanced why airy other course than that indicated should he observed, for after a will is proved at the ■place of domicile a copy, properly certified, may be recorded in most, if not all states, and the rights of creditors in all property located in another jurisdiction can be, and usually are, protected by statute.

The appellants have cited numerous cases all of which have-•been examined. Those principally relied on in this state are the Coursen’s Will Case, supra, which has been discussed, and' which decides nothing but that once a surrogate has taken jurisdiction the ordinaiy is deprived of all jurisdiction except on appeal, and Gordon’s Case, 50 N. J. Eq. (5 Dick.) 397, in which it was held that if the testator left personal property in this state, his will might be proved here even if his domicile was elsewhere;, the court refusing to determine the question of domicile, which was one of the issues, set the will aside as a forgery. This court affirmed the finding of forgery, but the domiciliary effect on the question of jurisdiction was not argued or decided, and we are-not concluded on that point.

The other New Jersey cases cited on this question are all based upon the Gordon’s Gase, supra, and must fall with it, for we are- . of opinion that it was not correctly decided so- far as the present question is concerned, and that if the expression of the court be-more than a dictum, it is not supported by all the cases cited, and as to those having a contrary tendency we do not approve the-reasoning.

As to the other cases cited, and they are numerous, it is sufficient to say that most of them do not run counter to the views-expressed in this opinion, and do not weaken our opinion that a due regard for state comity favors the correctness of the principle that the courts of the state of the domicile of a testator have the-primary right to pass upon the questions incident to the probate of his will even if some of his personal property be found in a foreign jurisdiction, and that there is no statute of this state-which vests in our probate courts a power inconsistent with this view.

If the present proceeding be sustained and tire will retained and filed with the secretary of state, as required by our law, this will can never be probated at the place of testator’s domicile, except as ancillary to the probate in this state, a proceeding of doubtful right and expressly contrary to the law of this state-wherever provision is made for recording a certified copy of a foreign will. Wallace v. Wallace, 3 N. J. Eq. (2 Gr. Ch.) 616

There is some evidence that the respondent consented to the probate in this state. The inference to he drawn from the evidence is not free from doubt, but granting that she did consent, that would not confer a- jurisdiction on the surrogate which he did not possess, for Ms jurisdiction depends upon legislative endowment, and not upon the act of a party contesting the probate.

This decree will he affirmed upon the ground that neither ■'the prerogative court nor tire surrogate of any of the counties of this state have general jurisdiction to admit to probate the last will and testament of a non-resident having a domicile at the date of his death in another state, although such non-resident leave property in this state, except as ancillary to a probate by the courts of the locality of such domicile.

For affirmance—The Chiee-J'ustioe, Garrison, Swatze, Tbenchard, Bergen, Voobhees, Mintuen, Bogert, VredenBURGH, CONGDON, WHITE, TREAOY-12. .

For reversal-—Kaeisch—1.


source: Caselaw Access Project

license: Public Domain

text:
    Rita B. Smith, appellant, v. Sarah Smith, respondent.
    [Submitted June 24th, 1912.
    Decided November 18th, 1912.]
    3. The orphans court has no authority, under the statute, to attach for contempt an executor because he refuses to obey an order requiring him to turn over the assets of an estate in his hands to his co-executor, if such order be made while he is still in office. That power comes into existence only after removal from office of such executor.
    2. Nor has such court power to refer to a master in chancery the matter of stating the accounts of an executor until he has filed his account and exception made thereto by some interested party, for its right to take this procedure is limited by statute to this situation.

      The fact? necessary for the consideration and determination of this appeal are, that John Smitli died leaving a last will in which he appointed his wife, Sarah Smitli, and his niece Rita B. Smith to be the executrices thereof, who probated the will July 26th, ■1905, and were duly appointed to the offices to which they were therein nominated; that September 5th, 1907, a paper purporting to cite the executrices to account, signed by one of the judges of the orphans court, was served on the two executrices; that on the return day Sarah Smitli appeared and represented to thé court that she was willing to account but could not, because all the bóoks and data concerning the administration were in the possession of her co-executrix, who refused her access to them, and' thereupon the orphans court made_an order requiring Rita B. Smith to turn over to Sarah Smith all such books and data in order that she might prepare and file an account of the administration; that December 6th, 1907, Sarah Smith filed her petition in the orphans court setting up, among 'other things, that her co-executrix had refused to return to her the books and papers, but informed her that they were in the possession of her counsel, who, application being made to him, refused to allow them to go out of his possession, but was willing that they be seen in bis office.
    The petitioner then prayed for a rule requiring Rita B. Smith to show cause why she should not be removed from her office and also attached for contempt, for not delivering the hooks and papers ; that the orphans court allowed a rule to show cause as prayed, and referred the matter of accounting to a master, to state an account of the administration of the estafe and restrained Rita B. Smith from making any account until the further order of the court ; that the master reported the amount of commission due the executrices, the amount of counsel fees to be allowed to counsel for Rita B. Smith, and that the balance in hand was $641.19.
    To this report both parties filed exceptions, and on the 19th day of August, 1909. the orphans court made a decree settling the amounts collected and disbursed by the executrices, and also allowed the exceptions filed by Sarah Smith, but refused those filed by Rita R. Smith. The decree further adjudges Rita B. Smith to be in contempt
    “for failure to obey the citation of this court to account dated September 'fifth, nineteen hundred and seven, and the order of this court made herein on September twentieth in the same year directing her to deliver to said Sarah Smith the books, papers, vouchers, and writings connected with the said estate of said John Smith, deceased, and to co-operate with the said Sarah Smith in the filing of an account relating to said estate.”
    The decree further ordered that Rita B. Smith be removed from her office as executrix.
    This decree was affirmed in the prerogative court from which this appeal was taken.

      Messrs. Roe & Runyon, for the appellants.

      Mr. James 8. Erwin, for the respondents.
   The opinion of the com*t was delivered by

Bergen, J.

We are not able to perceive any legal ground upon which this decree can be supported. As to that ¡Dart of it which adjudges Rita B. Smith to be guilty of a contempt in disobeying the citation to account, it appears that a paper-writing signed by one of the judges of the orphans court was served upon her, but this was not the citation to account prescribed by the one hundred and twenty-third section of the Orphans Court act which can only be issued by the surrogate. The utmost efficacy that can be given this paper would be that of an order to show cause, and a neglect to comply would not subject a party to attachment for “failure to obey the citation of this court to account,” in the orphans court. No attempt was made by the orphans court to proceed as if this paper was a rule to show cause under section 179 of the Orphans Court act. In addition to what has been said the court ordered an accounting before a master and restrained the executrix from proceeding to account.

The second ground upon which the order for attachment is based is the failure to deliver to her co-executrix the books and vouchers “connected with said estate.” As the order to deliver them was made before the executrix was removed from office, and while she was still one of the executrices of the estate, the orphans court had no power to make such order.

The authority of the orphans court to require an executor to turn over assets of the estate to a co-executor is limited by section 152 of the Orphans Oourt act to eases where the executor has been removed, and as the co-executor in this case had not been removed when the order was made the orphans court had no- jurisdiction to make it.

Therefore, as the oourt had made an order without warrant in law, the executrix was not hound to obey it. It was as if no such order had been made, and the party could not be in contempt of an order non-existent in law.

The other point raised assails the power of the orphans court to order an accounting by a master, and to make decree thereon under the circumstances existing. The Orphans Court act prescribes how accounts of this character shall be stated and confirmed, and by section 122 it is declared that they shall not he allowed except on at least one month’s notice by advertisements set up in five or more public places in the county where the settlement is to be made, and by due advertisement in one or more newspapers. It is not pretended that in this case any such procedure was followed.

The power of the orphans court to refer an account to a master is to he found in section 126 of the same act, but that power is limited io cases where notice has been duly given, a final account exhibited, and exceptions to the account made by persons interested, in which case the court may hear the contest or refer it to the surrogate, an auditor, or master to hear the parties and their witnesses and thereupon restate the account. The proceedings in this ease show that no account was filed, and therefore the foundation of the right to refer to a master did not exist, and the-action of the court was not justified by any statute.

The course to be pursued in cases where an executor refuses to-account is to remove him and appoint another in his stead who* will account according to the requirements of the statute upon due notice and advertisement, and when removed to require the disqualified executor to turn over to the new appointee the assets of the estate. When the account is property before the court, if exceptions are filed to it, they may then be disposed of by the court or a restatement ordered to be made by-one of the statutory officers.

In the present case none of the statutory requirements were observed and the order of the orphans court cannot be sustained and should be set aside.

The decree of the prerogative court will be reversed and the record remitted to that court in order that tire views here expressed 'may be carried out.

For affirmance—None.

For reversal—Tixe Cujee-Justice, Garrison, Swayze, Thenchard, Bergen, Vooriijges, Minturn, Kalisch, Bogert, Vredenbubgh. Congdon, White, Treaoy—13.


text:
    George G. Frelinghuysen, executor, &c., complainant-respondent, v. Sara L. B. Frelinghuysen et al., defendants.
    [Submitted July 8th, 1912.
    Decided November 18th, 1912.]
    A testator directed that the remainder of his estate be held by his executor upon trust to pay the income to his wife until the youngest child then living reach the age of twenty-one years, and on the death of his wife to pay the income to his four children, naming them, “or to the direct descendant or descendants of either of them in equal shares,” or if the youngest child should reach the age of twenty-one years during the life of the wife, to pay one-third of the income to his wife and two-thirds to Ms said children, “or such of them as may then be living, or to their direct descendant or descendants share and share alike.’'—Held, that the children took a vested interest in the income, subject to the trusts created, and that on the death of the widow, there being no gift over of the corpus, the children or the direct descendants of those deceased would take the trust fund absolutely, and that the words “direct descendants.” as used by the testator, mean descendants of any child dying during the existence of the trust, and not descendants of those of the children living at the death of testator's wife and the termination of the trust.
    The hill of complaint in this cause prajrs the construction of the last will and testament of Peter H. Ballantine, deceased. He died leaving a widow and four children, three daughters and a son. The widow and testator’s son, George, are now deceased. The latter left no descendants. Of the three daughters, two have children living, and whatever interest George had in the estate under the will was sold bi’ his trustee in bankruptcy and purchased by two of his sisters.
    So much of the will as is necessary for the determination of the questions raised reads as follows:
    “V. The remainder of my estate shall be held in trust by my executors, and the income thereof paid to my beloved wife, Isabella Linen Ballantine, until the youngest child then living shall reach the age of twenty-one years and on the death of my beloved wife, my executors shall hold for the benefit of and pay the income thereof to my children, Sara Linen, Isabel A., George A.' and Mary C., or to the direct descendant or descendants of either of them in equal shares, subject to the provisions of section VII. hereinafter as to the share of George A. Ballantine.
    “VI. That when my youngest child then living shall reach the age of twenty-one years, the executors shall pay to my beloved wife one-third (i) of the income of my estate, and divide the other two-thirds ($) in equal shares between my children, Sara, Isabel, George and Mary, or such' of them as may be then living, or to their direct descendant or descendants, share and share alike per stirpes, provided, however, that the payment of the income to any child or children aforesaid, or l.o a de-' scendant. or descendants of either shall be first approved by my beloved wife, otherwise the same shall be withheld for the benefit of that child from whom it may be so withheld.
    “VII. That one-fifth (J) part of the share of my son, George A. Ballantine (provided for in section V.) in my estate shall be made over to him absolutely on his reaching the age'of twenty-one years, and that in addition thereto three-fifths (f) of his share in my estate be made over to him on' his reaching the age of twenty-eight years, provided the executors, with the approval of my beloved wife, if she is then living, may delay the payment of the last mentioned part of his share, to wit, the three-fifths (f) part until such time as they may approve, and that the remaining one-fifth (J) part of his share be held in trust by executors for the benefit of my said son, George A. Ballantine, and his direct descendants.
    “IX. I request that my executors sell all my unimproved real estate for the benefit of my estate.
    “XI. That the house and lot, No. 29 (“27”) Washington Street, Newark, New Jersey, I will and bequeath to my daughter Sara Linen Ballantine Frelinghuysen, the amount paid for the same by me to be deducted from any share or portion which may hereafter he allotted or paid to her from my estate by my executors.
    “XII. I hereby authorize my executors, with the consent of my beloved wife, to sell and dispose of any and all of my real estate, improved or unimproved, for the benefit of my estate.”
    ■ By the decree appealed from it was adjudged that the trust provided in the fifth and sixth paragraphs terminated on the death of the widow of the testator, and that thereupon each of the three of the surviving children of the testator became vested with an absolute estate in one-fourth of the principal fund; that the assignees of testator’s son, George, to whom his interest was conveyed by his trustee in bankruptcy proceedings, are vested with the remaining one-fourth part, and that the power of sale provided in paragraph XII. of the will, ceased on the death of the vidow. The grandchildren of the testator, claiming that they take the corpus of the estate after the death of testator’s children, have appealed from this decree.

      Messrs. Pitney, Hardin & Skinner, for the complainant-respondent.

      Mr. John O. H. Pitney, for the children of testator.

      Messrs. Gollins é Corbin and Mr. Charles B. Bradley, for the appellants.
   The opinion of the court was delivered by

Bergen, J.

The contention of the grandchildren of the testator is, that under the foregoing will the residuary estate must be held by the executors, after tire death of the widow, in trust to pay the income, during life, to the children, and the corpus of the fund thereafter to the grandchildren of testator. The correctness of this claim depends upon the solution of the question whether the children take under the will a vested interest in the corpus of the trust fund or simply a life estate with remainder to the grandchildren.

There is no express gift of the principal, but there is a gift of the income of the residuary estate to the children without limitation, and without disposition of the remainder, which confers an absolute title in the fund from which the income arises, unless it clearly appears that a contrary disposition is intended. Gulick v. Gulick, 27 N. J. Eq. (12 C. E. Gr.) 498; Post v. Rivers, 40 N. J. Eq. (13 Stew.) 21.

The appellants insist that the true construction of this will limits the right of testator’s children to a life estate with remainder over to them as the direct descendants of the children, and rest this claim upon the direction in paragraphs Y. and YT. that on the death of testator’s wife his executors should hold the fund for the benefit of and to pay the income thereof to his four children, “or to the direct descendant or descendants of either of them in equal shares.”

Ve fail to find anything in these paragraphs which indicates an intention to give the principal to the grandchildren, but, on the contrary, when read with other parts of the will, their clear meaning is that direct descendants of any child dying during the existence of the trust shall take as a substitute for a deceased parent, and in no way limits the estate of a child in the principal. That it was the intention of the testator to give his estate to his children in equal shares is manifested by other provisions in his will. In paragraph VII. he directs that one-fifth “of the share of my son, George,” shall be made over to him absolutely on his reaching the age of twenty-one years, and in paragraph XI. he gives to his daughter Sara a house and lot, and then directs that the amount he had paid for it should be “deducted from any share or portion which may be hereafter allotted and paid to her from ray estate.” If it was not intended to give his children the principal of the fund from which the income was to.be derived during the continuance of the trust, then neither of the children last mentioned had been given any share, one-fifth of which could be paid to one when lie reached twenty-one years, or from which the value of the house given the other could be deducted.

In addition to the foregoing we are of opinion that by using the words “held for the benefit of, and pay the income thereof to my children,” in paragraph V., he intended to give to his children the sole beneficial interest in the residue of his estate in equal shares, the principal being held in trust for a limited period, during which the income therefrom was payable as directed.

Reading paragraphs V., VI. and VII. together the purpose of the testator as therein expressed was, that during the life of his wife and the minority of his youngest living child, his estate should he held in trust; to pay the entire income to the widow until the youngest child reached the age of twenty-one years, and thereafter to pay the income to the widow and the children in the proportions set out in paragraph VI., during the infancy of -his youngest child and the life of the widow, and thereafter the principal to his children'to be their absolute property, except as to the share given to George, one-fifth of which was to be paid to him when he reached the age of twenty-one years, and three-fifths to he made over to him on reaching the age of twenty-eight years, subject to the approval of his wife, if she should then be living, and that the remaining one-fifth was to be held in trust by his executors for the benefit of George and his direct descendants; in other words, the last one-fifth was to be held on the same terms as the shares given to his three daughters, to become payable when the trust terminated.

We are also of opinion that the active trust ended on the death of the wife, or at such time thereafter as the youngest living child reached the age of twenty-one years, and it being admitted that the youngest child has reached that age, and that the widow is dead, the shares of the children in the principal fund is now absolute and subject to pajunent.

The appellants rely upon the construction given to this will hv the federal courts in a contest between George and the purchasers of his interest in the estate, sold through proceeding in bankruptcy. 152 Fed. Rep. 785. But while the court in that case declared that George took a life estate with a remainder in his children, that was not necessary to the decision of the question before the court, and was so _ considered by the judge who delivered its opinion, for he said: “In conclusion I would say that, whatever construction is put upon the clause under consideration, it seems to nre that the fund must continue to be held in trust, at least during the lifetime of George, and that is all that need now be determined.”

Erran this adjudication an appeal was taken to the United States circuit court of appeals, where the. court at first affirmed the decree, hut upon rehearing modified it to read as follows: “That the bill be and the same is hereby dismissed, without prejudice to complainant’s rights to hereafter claim that the trust, as to the last one-fifth of George A. Ballantine’s share, will cease upon the death of testator’s widow.” Ballantine at al. v. Ballantine et al., 38 C. C. A. 109. So it was left undecided whether the trust, as to the last one-fifth of George’s share, should cease upon the death of the testator’s widow, which is one of the questions now before us, and we hold that the trust terminated with the life of the widow and George’s share then became payable.

[Regarding the only other matter argued by the appellants, viz., whether the executor is vested with an unconditional power of sale over the improved real estate, we arc of opinion that the decree correctly adjudged that the power ceased on the death of the widow whose approval is required.

The decree will he affirmed.

For affirmance.—The Chancellor, Chief-Justice, Garrison, Swayze, Trenchakd, Bergen, ' Voorhees, Minturn, Iyaltsch, Booert, Vredenburgh, Congpon, White, Treacy —14.

For reversal—-None.


author: Yoorite.es, J.

text:
    Richard C. Waln, appellant, v. John Meirs et al., respondents. Richard C. Waln, administrator, appellant, v. John Meirs et al., respondents.
    [Submitted April 22d, 1912.
    Decided November 18th, 1912.]
    The evidence examined in a suit brought by an administrator to set aside a transfer of personalty, made -by his intestate, and found insufficient to warrant a decree for that purpose, and not to disclose a situation in which the transferee held a dominant position, with relation to the transferrer, so as to shift the burden of proof from the complainant to the defendant.
    On appeal from two decrees of tire court of chancery advised hv Vice-Chancellor Walker, whose conclusions are as follows:
    “Walker, V. 0.
    This bill is filed by the heirs-at-law of the ,Iate Mrs. Sarah Wain Hendrickson, of Walnford, in the county of Monmouth. Mrs. Hendrickson died March 15th, 1907, intestate, aged ninety-one years. She was a childless widow and left certain nephews and nieces as her heirs-at-law. In her lifetime, and on December 22d, 1905, Mrs. T-Tendrickson made a deed for her plantation, 'manor house, mill and other buildings at Walnford, and for a house and lot in Orosswicks, New Jersey, to the defendant John Wilson, and the object of the complainants’ suit is to set that deed aside, for the reasons, as alleged, that Mrs. Hendrickson for several years prior to her death was weak in inincl and body and unable to transact business; that Wilson took advantage of her condition and pretended to farm the real estate on shares and wrongfully appropriated to his own use large sums of money for which he was indebted to Mrs. Hendrickson; that she was not indebted to the defendant Mrs. Richardson, for whom provision was made in the deed; that defendant Mr. Meirs borrowed of Mrs. Hendrickson a large sum of money which he owes to her estate; that the defendants unlawfully entered into a conspiracy to cheat and defraud Mrs. Hendrickson of her property and to divide the proceeds among themselves; that the deed was procured to be made without consideration and by fraud and undue influence.
    The deed in question contains the following recital:
    “Whereas, the said party of the first part is indebted unto the said party of the second part in a sum in excess of eight thousand ($8,000) dollars for moneys heretofore loaned and advanced and for work and labor and other services done and performed by the said party of the second part for the said party of the first part, which said indebtedness and as well as the indebtedness of the said party of the first part to Ellen Richardson, now in the employ of the said party of the first part for work and labor done and performed by the said Ellen Richardson in such employment, the said party of the first part is desirous of paying, and not having the present means to do so, to that end and for that purpose has agreed with the said party of the second part to convey and assign to him the said party of the second part, all and singular, the real and personal property and estate of wheresoever kind and wheresoever situate, of her the said party of the first part, subject to the estate for life in the said real and personal property and estate hereinafter reserved and subject also to the, promises, covenants and agreements hereinafter contained.’’
    It then, in the granting part, contains the following:
    “Atx. both of the said lands and premises and the said personal property and effects, subject, however, and the said party of the first part does hereby reserve to herself the use and occupation and enjoyment of all and singular the said lands and premises and personal property and effects and the. rents, issues, profit and income derived and to be derived from the same in any manner whatsoever for and during the whole term of her natural life and subject also to the due and faithful performance of the several promises, covenants and agreements hereinafter mentioned and contained, to be done and performed by the said party of the second part. And the said party of the second part does hereby promise, covenant and agree to and with the said party of the first part, that if the rents, issues and profits, derived from the said lands and premises and the income from the said personal property and effects, or the part or parts thereof that may be rented, farmed or otherwise used to produce profit, shall not produce sufficient income to maintain, support and otherwise provide for the comfort and necessities of the said party of the first part and pay ail interest, taxes, insurance and other charges against the said land and premises and personal property and effects, that he, the said party of the second part will out of his own proper moneys, provide the maintenance and support for the party of the first part as above-provided.
    “And the said party of the second part does further covenant andl agree to and with the said party of the first part, that he-r the said party of the second part, will out of his own moneys, pay and satisfy the indebtedness of the said party of the first part to Ellen Richardson now in the employ of the party of the first part, for work and labor-done and performed in such employment.
    “And he the said party of the second part does further promise, covenant and agree to and with the said party of the first part that after the decease of the said party of the first part, he will provide all the-moneys necessary to be expended to provide a funeral suitable to the situation and circumstances of the said party of the first part for the erection of a suitable monument over her grave. Interment to he in the burying grounds of the Orthodox Friends in Orosswicks. and to be beside or near the burial place of the late husband of the said party of the first part.
    “And it is further agreed, by and between the parties hereto, that . the said party of the first part, shall retain the said party of the second part in her employ, he to do and perform the same duties and'have the same management of the affairs of the said party of the first part as now; ' and during the lifetime of the said party of the first part the said party of the second part shall account to the said party of the first part for the income, rents, issues and profits that may come to his hands in his management of the affairs of the said party of the first part, but shall not be obliged to nor shall account to the personal representatives, if any there be appointed, after the. death of the said party of the first part, but from so doing is hereby released and relieved.
    “And the said party of the second part does further promise, covenant and agree that he will remain and continue in the employ and do and perform the same work and labor, duties and other services as are now done, and performed by him during the whole term of the natural life-of the said party of the first part, if he shall so long survive; and that he the said party of the second part will on demand of the said party of the first part account for and pay over any balance remaining in his hands of moneys belonging to the said party of the first part.
    “And it is understood and agreed, that except the personal services herein provided for, all of the premises, covenants and agreements herein provided to be done, kept and performed by the said party of the second part shall extend to and bind and oblige the heirs, executors, administrators and assigns of the said party of the second part hereto.”

      This deed was acknowledged on the day it hears date before William Quicksall, a commissioner of deeds, and was duty recorded December 27th, 1905, in the Monmouth county clerk’s office in book 764 of deeds (at p. 295), &c-., in which county the Walnford property is situate; and in the Burlington county clerk’s office on January 1.9th, 1906, in book 405 of deeds (at p. 274), &c., in which county the Crosswicks property is situate.
    The defendant Wilson is an unmarried colored man, who lived Avith and Avorked for Mrs. Hendrickson, with some intervals, for a period of nearly forty years. The defendant Mrs. Richardson is an English Avoman, who resided with Mrs. Hendrickson in the capacity of housekeeper and companion for about fourteen years. The defendant John Meirs is an attorney-at-laAv of this state and is related to Mrs. Hendrickson, being her grandnephew. The complainants are contending for the recovery of an ancestral estate which has been in the famity for some two hundred years, and which, by the deed in question, Avas conveyed to a colored servant, as they allege, without consideration and in fraud of their rights. Those rights, however, are to be tested and determined, not upon any sentimental ground, but by the fact Avhether or not Mrs. Hendrickson was indebted to Wilson and Mrs. Richardson; in other words, whether the.conveyance was founded on sufficient consideration.
    It may be appropriately observed that the property in question is not extremely valuable. True, it consists of a farm of one hundred and seventy acres, a mansion-house with outbuildings, and a grist mill. The testimony shows this property to he valued as low as $8,500 cand as high as $10,000. For present purposes I Avill hold it to be Avorth $10,000. It is subject to a mortgage of $6,500. That leaves an equity of $3,500. Personal property conveyed by the deed, and which is the subject of another suit (one brought by Mrs. Hendrickson’s administrator against the same_ defendants), Avlilch personal property Avas conveyed by the deed now being considered, is valued as high as $4,000. That makes $7,500 of value passing to Wilson. The actual consideration mentioned in the deed is an indebtedness of Mrs. Hendrickson to Wilson of $8,000 and her indebtedness to Mrs. Richardson in addition.

      It will be seen, therefore, that the estate is not a particularly valuable one, at least not intrinsically, and that its value to the relatives of Mrs. Hendrickson consists principally in its being an ¡ancestral estate. There would be less likelihood of Mrs. Hen-drickson having conveyed this estate to' Wilson and more likelihood of her having left him to his remedy at law if she had been upon terms of anything like intimacy with the relatives, who are the complainants in this cause, or if she held them in anything like the regard with which relatives usually and ordinarily hold •each other. As a matter of fact, she was more or less, and I think I may say decidedly, estranged from these relatives.by reason of litigation in the Wain family, which resulted adversely ■to her some twenty odd years prior to her death. These relatives were not frequent, some of them only occasional, visitors to her, while some of them visited her not at all. She lived in practical isolation from the world during the last years of her life, cer■fcainly since a severe illness in 1899, through which Mrs. Richardson nursed her, and during which time, as at all other times, John Wilson was her devoted servant.
    The complainants assert, and adduced testimony tending to ■show, that the once proud, strong-willed and imperious Mrs, I-Tendribkson, at the time she made the deed in question, through weakness of mind and body, lacked sufficient capacity to understand the transaction in which she was engaged, and that'she was fraudulently imposed upon, unduly influenced, and that, ■consequently, the deed is void. Upon this issue my judgment is that the proof is the other way, and that the witnesses sworn for . the defence have clearly established that Mrs. Hendrickson at the time of the making of the conveyance possessed abundant •capacity to understand the transaction in which she was engaged; in fact, that she did understand it; and that, volitionally, and without imposition, fraud or undue influence, she made the conveyance under review as her voluntary act and deed. I do not pretend to say that at this time she possessed the same vigor of mind and bodjr that she enjoyed in earlier life. She rambled at times in her conversation, was more or less repetitional, and perhaps wás the occasional victim of delusion—though on the question of not recognizing certain relatives and making rather incongruous remarks of and to them I think she acted more with design than by mistake. Some of the things that she said and didr especially some of the things which she wrote, appeared to be somewhat irrational, yet they are to be explained I think upon, the theory that she took herself very seriously and missed no' opportunity of exploiting herself in a sort of mock heroic way,, attributing to herself more intellect and more importance than, in reality she possessed.
    The wills and deeds of innumerable persons against whom accusations of mental aberration have been leveled'and proved to-exist in far greater degree than can be argued to have existed in the case of Mrs. Hendrickson, have been upheld, the supreme test being the capacity of the devisor or grantor a.t the time the convej^ance was made.
    Let us look now to the execution of the particular deed in question and examine it in the light of the law on the subject.
    JDr. Allen, who became Mrs. Hendrickson’s physician during her illness of 1899, and continued as such until her death,.. March 15th, 1907, said he treated her for erysipelas in November' and December, 1905, and did not notice any change in her mental condition; that in December, 1905, it was good, fair for her age, and that she was not a person easily influenced. She then told him she was going to deed her property to Wilson. The deed was . made December 22d of that year. She did not die of senile dementia. Ordinarily, a physician treating a patient is in a better position to know of that patient’s condition, as to integrity' or infirmity of mind and body than anyone, else, and I see no reason to think otherwise in the case in hand. And the doctor, as is usual, has no interest in this controversy whatever.
    The deed in question was prepared by the defendant John Meirs at the request and by the direction of Mrs. Hendrickson. The terms of the deed were arranged at an interview between Mrs. Hendrickson and Mr. Meirs, and a tentative draft of the instrument was submitted to Mrs. Hendrickson and approved by her. Mr. Meirs then wrote the document and Mrs. Hendrickson had it in her possession for several days before its execution and read it over several times and was thoroughly familiar with its contents.

      William Quicksall, assessor of the township and the commissioner who took her acknowledgment, saj's that she recognized him when he went to the house on that occasion as well as the previous spring when he went to make the assessment; that he always considered her pretty strong and not easily influenced. That was his judgment from his 'dealings with her; that she talked entirely rationally; made direct and proper answers to every remark he made, and led the conversation; that she may have rambled a little, but certainly knew what she was talking about that day.
    In my judgment, it is extremely significant that the deed from Mrs. Hendrickson to Wilson was speedily recorded after its execution. It was made on December 22d, 1905, and recorded five daj's afterwards in the Monmouth county clerk’s office, in which county the hulk of her property is situate, and between three and four weeks thereafter in the Burlington county clerk’s office, in which county tire remaining portion of the property lies. Mrs. Hendrickson survived more than a year after this transfer and its recording, during which time she, or another on her behalf acting as next friend, could have attacked the conveyance, with the benefit of her examination as a witness, or of an exaniination into her sanity on notice to her. I do not recall whether the testimony discloses that the complainants,, or any of those in interest with them, actually knew of the conveyance; but, beyond any doubt, they did. The recording of this extraordinary deed at Freehold and Mount Holly must have caused comment which reached and spread over the country side at Walnford. Whether so or not the defendants proceeded in the open and practically published the transaction to the world. 1 am unwilling to believe that they did it upon the theory that they would take the risk that a nefarious and fraudulent transaction would not be discovered in the lifetime of the victim, so that they might have the advantage in the defence of their ill-gotten gains after her death, by asserting that they concealed nothing, but, on tire contrary, laid hare the transaction, thus making discovery practically certain at a time when 'it undoubtedly would have meant ruin to their plans. It is significant; not of the dishonesty, hut of the honesty of the transaction, that this conveyance should have been forthwith recorded. instead of being withheld until after “the death of the grantor, as is usual in cases ’ of fraud such as is here imputed to the defendants.
    Let me now briefly advert- to the question as to whether or not Mrs. Hendrickson was indebted to Wilson. He had, as already remarked, worked for her for many years,, and he had, in my judgment, made her his banker and the custodian of his money during practically the entire time of his employment by her. There have been other instances of the same kind, although they -are rare. In her early days, when she was entertaining rather lavishly and people of affluence visited lier quite frequently, Wilson was the recipient of liberal tips which he turned over to Mrs. Hendrickson to keep for him as well as leaving his wages with her. Of course, he had his clothes and had spending money, and doubtless he had more money than he thinks he had or states, and doubtless left less money with Mrs. Hendrickson than he thinks he did or states; but, out of all the testimony on this subject, I am persuaded that Mrs. Hendrickson was heavily indebted to Wilson, and that she took him to Camden to the office of the late Attorney-General Grey, who represented her, and that in Mr. Grey’s office an accounting was arrived at between Mrs. Hendrickson and Wilson, as a result of which Mr. Grey drew and Mrs. Hendrickson signed a note of hand to John Wilson, in which she promised to pay him the sum of $6,000, which was money she owed him. This was in December, 1902.
    As to Mrs. Richardson, Mrs. Hendrickson’s housekeeper and companion, the testimony, to my mind, shows that Mrs. Hendrickson was indebted to her, and that she therefore made it a condition in the deed that John Wilson should pay her out of the estate granted. Mrs. Richardson is quite a remarkable woman. P>orn and reared in England she afterwards traveled about tlie world occupying various positions and bad a remarkable, not to say romantic, career. My impression of her is that she is entirely honorable and entirely truthful. She is now an old woman. It was suggested, though not pointedly charged, that she was unduly intimate with Wilson. I acquit her of that charge. She was friendly with him, more so doubtless than most women axe with colored men, but that is to be accounted for as it is notorious that there is little or no prejudice against colored people in England, whence Mrs. Richardson came.
    The complainants insist that as Wilson and Mrs. Richardson were Mrs. Hendrickson’s servants and Meirs, her attorney (the latter of whom they claim has received and is to receive portions of the estate), and occupied a dominant position toward her, that, therefore, the deed is not prima facie evidence in favo! of its validity, hut, on the contrary, that the burden of proof is cast upon the defendants to show that the transaction was founded upon sufficient consideration, is untainted and entirely fair.
    I will grant that the defendants occupy this position of disadvantage in this case; and I hold, upon this score, that they have discharged that burden. The deed, in terms certainly indicates that the grantor, Mrs. Hendrickson, took the precautions in her own interest, which are so frequently wanting in voluntary conveyances which are aside in behalf of heirs and devisees, namely, she reserved a life estate, and imposed conditions upon the grantee for her support and the payment of her debts. The conveyance was drawn by an attorney of her choice and selection and from him she had competent, independent legal advice as to the nature of the transaction and her rights thereunder.
    This case was tried at great length, the witnesses were numerous and their testimony voluminous. It was argued on both sides with exhaustiveness and ability rarely equaled. I listened with undivided attention through the many days of the trial, observed critically the character of the witnesses and their manner of testifying, and have, since the conclusion of the evidence and the arguments, reviewed the evidence and the exhaustive briefs submitted by counsel, and upon most careful consideration have reached the conclusion that the defendants have established the title of Wilson to the land in question (for that only is drawn in question in this suit), and therefore the complainants’ hill must he dismissed, with costs.
    Walkeb, V. C.
    This bill is filed by the administrator of the late Mrs. Sarah Wain Hendrickson, of Walnford, in the county of Monmouth, who died intestate on March 15th, 1907, aged ninety-one years. She left her- surviving certain nephews and nieces as her next of kin who would inherit any personal property of which she died possessed. These next of kin are also her heirs-at-law. In another suit commenced three days before the bill in this cause was filed, the complainant, herein as an heir-at-law of Mrs. Hendrickson, filed a bill on behalf of himself and such other of her 'heirs-at-law as might become parties and contribute to the expenses of that suit. In my conclusions in that cause, filed simultaneously with this memorandum, T deal with the 'issues,, which are identical in both suits. The deed in question, which was made December 22d, 1905, by Mrs. Hendrickson to the defendant Wilson, conveyed both real and personal property. The other suit was to recover the real estate from the grantee on the ground of want of capacity of the grantor, and fraud and undue influence inducing the conveyance, and this suit is to set aside the same conveyance as to the personal property. The only difference between this suit and the other one lies in a question of evidence. It is here objected that the testimony of the defendants which was received in the other cause is not evidence for the defendants in this suit, because the complainant here sues in a representative capacity. The cases were tried together by consent and it was agreed b3r counsel that the testimony of the defendants should be taken subject to being excluded in this case if I should be of opinion that it was not admissible under the statute. At the conclusion of the complainant’s case, the defendants moved to dismiss the bill as to the defendant Meirs, asserting that nothing had been proved against him and that such a decree should be made in order- that the other defendants could have the benefit of his testimony. I cannot say that nothing was proved against Mr. Meirs at the conclusion of the complainant’s case. When the complainant rested there was testimony tending to show and from which it might, be inferred that the three defendants had, pursuant to a conspiracy, cozened Mrs. Hendrickson out of her property, and, while Mr. Meirs might not have been the recipient of anv but a small portion for valúe, as the defendants contend, nevertheless, if a conspiracy were established, he would have to account to the complainant as administrator along with the other defendants, and they would all be'jointty and severally liable.. Therefore, in my judgment, the defendants’ motion should be denied, and the testimony of the three defendants, which was received in the other case, must be rejected in this'ease.
    Now, when the defendants rested and the whole case was presented in the cause concerning the land, the controversy wore quite a different aspect, and that which unanswered and unexplained appeared, at least with some degree of probative force, to indicate guilt on the part of the' defendants, was explained, and it was made affirmatively to appear that Mrs.' Hendrickson understood the transaction in which she was engaged, and that the deed in question was made by her without any undue influence, fraud or imposition, and as her voluntary act and deed. This, to my inind, abundantly appears in the other case in which the defendants are given the benefit, of their own testimony, and I incline to the opinion that in this case even without their testimony the same result is to he reached.
    It would be an'anomaly in the law if in two cases, one concerning the real estate and the other the personal property of the deceased, between the same identical parties in interest and depending upon the same identical facts, a diametrically opposite result should be reached as to each class of property; but this would be so, if, in excluding the evidence of the defendants in this case as required by the statute, the other evidence was insufficient to affirmatively establish the defence, for the burden of proof in this ease; as in the other, is cast upon the defendants. Now, without deciding whether or not. the testimony, other than that of the defendants, in this case has affirmatively established the title of Wilson to the personal property, the decision of the other case ■should be given controlling effect in this case under the doctrine ■of res judicata.

    The complainant, as administrator, represents the real parties to this suit, who are the next of kin (and creditors, if any) of the deceased. They are the real parties in interest,, and the next ■of kin in this suit are bound by the decision of the other suit in which their interests as heirs-at-law were tried and determined <as against the same defendants upon identically the same issues. Anri it makes no difference that the property which is the subject of the separate’suits is different. See the case of City of Paterson
      v. Baker, 51 N. J. Eq. (6 Dick.) 49. See, also, In re Walsh, post p. 565; Seeley v. Adams, 76 All. Rep. 462.

    Suppose the suit of the heirs had been tried and determined with a decree dismissing the bill already entered when this suit commenced. Certainly, the defendants would have a perfect defence in the record of the former suit, which could be interposed bv way of plea in bar. If, on the contrary, the administrator’s suit had been first tried and determined and a decree in favor of the defendants were already entered, a similar plea in the suit of the heirs for the real estate setting up the defeat of the same heirs as next of kin in an attempt, through their representative, the administrator, to recover the personal property, would be a perfect bar. 1 repeat, no such anomaly and injustice should be permitted as two different results in these two suits simply because they are tried simultaneously. I think it makes no difference that-the bill for the heirs was filed prior to the bill by the administrator. It is the priority of decree settling the issues in the one case which would be efficacious in the other.
    Let the decree be entered in the other suit first, and then let the decree in this case contain a recital of the oilier suit and the decree therein and that the court is of opinion that the matters there adjudicated are dispositive of the issue in this case res judica-ta. The bill in this case will also be dismissed,' with costs.”

      Messrs. Wescoli & Wescott, for the appellants.

      Mr. Thomas E. French and Mr. Lewis Starr, for the respondents.
   The opinion of the court was delivered by

Yoorite.es, J.

These appeals are from two decrees, dismissing two bills of complaint. One of the bills was filed by Eiehard C.’ Wain, one of the heirs-at-law of Sarah W. Hendrickson, deceased, on his own behalf, and in behalf of such other heirs-at-law of said Sarah W. Hendrickson as should come in and become parties thereto.

The othei bill was filed by the said Richard 0. Wain, as administrator of said Sarah W. Hendrickson, deceased. They each attack a deed dated December 22d, 1905, made by Mrs. Hendrickson to the defendant Wilson transferring both real estate and personal property, and to have this instrument set aside and declared void. The first hill by the heirs-at-law is directed against that part of the deed that, conveys a tract of land known as the Wain-ford Farm. The second bill filed by the administrator is to set aside the same deed so far as it conveys personal property. By stipulation entered into between the parties the two suits were tried together, and by consent, the testimony in the one case is to he used in the other case, subject, however, to its exclusion in the administrator’s case, if inadmissible by reason of the statute'. The facts have been carefully set out in the opinions filed by the learned vice-chancellor.

In the bill brought by the heirs-at-law to avoid the transfer of the real estate, we think the decree should be affirmed, for the reasons stated by the. vice-chancellor in his opinion.

If the learned vice-chancellor, however, meant to express it as his opinion that the defendants, Wilson and Richardson, occupied dominant, positions towards Mrs. Hendrickson, this court ^ does not wish to he understood as agreeing to that conclusion. We are of opinion that the testimony shows that the defendants have borne the burden which the. law has placed upon them as to the Lona fid,es of the transaction. But we do' not agree that Mrs. Hendrickson held a servient position as to them. Wilson was a mere servant in the family and had occupied that position for forty years, and in it had considered whatever he made the property of his mistress.

It clearly appears that the grantor had independent advice of her own choosing, and that the bargain evidenced by the deed was not only not improvident on her part, but a most favorable one for her. The testimony shows that Mrs. Hendrickson herself said it was a hard bargain for Wilson, and that he should be made fully acquainted with its nature before entering into it. He was apprised of it and acknowledged that its terms did bear heavily upon him, but that he would not think of leaving the old lady; but expected to take care of her in any event. This view adds strength to tire position taken for the affirmance.

In the administrator’s ease, we agree with the result reached- ■ by the learned vice-chancellor, but by a different course of reasoning.

The learned vice-chancellor, tve think, correctly ruled that the testimony of the three defendants in. this suit should be rejected, for the reason that the complainant was suing in a representative capacity.

We think it unnecessary to apply in this suit the doctrine of res judicata, if it arise from the decree in the real estate case. Although it may seem to be illogical that any different result could be reached, as to the status of the same instrument, merely by its being subjected to different suits, yet that might have been the result if there had been separate conveyances, with different evidence in each suit.

The opinion goes upon the idea that the administrator represents the next of kin, who are said to be the real parties in interest to this suit, and that the next of kin are bound by the decision in the real estate suit, in which their interest as heirs-at-law had been determined upon identically the same issue. All the cases hold that litigation invoked to this effect must have been between the identical parties or their privies in law or estate.

Bigelow Estoppel (5th ed.) 146, says:

“The relationship of privity does not exist at common law between administrator or executor, and heir or devisee, so as to make a judgment against the decedent’s representative binding upon the lands of the heir or devisee,”

and see opinion of Marshall, C. J., in Garnett v. Macon, 2 Brock, 185; 6 Call. 308, reported as No. 5245 in 10 Fed. Cas.

The vice-chancellor apparently anticipated difficulty which possibly might aris.e if the decree in favor of’ the administrator should be entered first. Tie was careful to order that the decree in the suit brought by the heirs-at-law should first be entered, and that the decree in- this suit should contain a recital of the former decree. If there be a lack of mutuality in the estoppel, the order of entry would not obviate the difficulty.

Though the testimony of the defendants must be rejected, yet there are other proofs ample to show that Mrs. B endrickson was, at the time, of sufficient mentality; that she had long before become estranged from her family; that she was indebted to Wilson, who held her note; that she had announced her intention to make the transfers to him, in order that she might provide for him for all his days, and her subsequent statement to another witness that she had “fixed everything over to him so that everything shall be his,” and that she had provided for her future support and maintenance with considerable forethought and prudence by the instrument sought to be .annulled.

In our view, the complainant’s evidence fails to disclose in this ease that Mrs.- Hendrickson was dominated by the defendants, and therefore Ihe burden has not shifted. The complainant thus stands upon the ground of no greater vantage than would the grantor if she were making the attack.

Under such circumstances, even if a gift, it would have been irrevocable. James v. Aller, 68 N. J. Eq. (2 Robb.) 666. A fortiori if upon sufficient consideration.

Since there is abundant evidence to justify an affirmance of the decree in the administrator’s suit, without regard to the effect of the adjudication in the other case, a point which we do not decide, we base our decree upon the force of such evidence.

The decree will be affirmed.

Ho. 54—

For affirmance—The Chief-Justice, Garrison, Swayze, Trenci-iard, Bergen, Voori-iees, Minturn, ICadiscit, Bogert, Vredgnbijrgit, Congdon, White, Treacy—13.

For reversal—Hone.

Ho. 55—

For affirmance—The Chief-Justice, Garrison, Swayze, Trenchard, Bergen, Voorhees, Minturn, Kalisch, Bogert, Vredenburgh, Congdon, White, Treacy—13.

For reversal—Hone.


author: VOORHEES, J.

text:
    Alfred Reed and Sydney L. Wright, receivers of the New Jersey and Pennsylvania Traction Company, appellants, v. The Inhabitants of the City of Trenton, respondents.
    [Argued June 26th, 1912.
    Decided November 18th, 1912.]
    1. Where a traction company, organized under the statute of this state contracted with a municipal body in the form of an acceptance of an ordinance, passed by a municipal body, granting permission to such company to maintain and operate its railroad, conditioned that certain specified rates of fare should be charged for transportation of passengers —Held, that where there were no express words in the ordinance, indicating that the parties were contracting for any other corporation, the inference is that the parties intended to bind themselves only, and not other parties, and that the obligation of the company was to carry passengers over its own lines, for the stipulated fare, and not over the lines of another company.
    2. The contract of a stockholder, made in his own name, is not binding upon a corporation, the stock of which he owns and controls.
    3. A practical construction of a contract becomes evidential only when the writing is ambiguous, and where it appears that the acts done under it were those of the very parties thereto, and were done in pursuance and by reason of it.
    On appeal from a decree advised by Vice-Chancellor Walker, whose conclusions are as follows:
    “'Walker, V. C.
    “The bill is filed to restrain the mayor of the city of Trenton from revoking- the license of car No. 7 of the New Jersey and Pennsylvania Traction Company, and from stopping the operation of that car upon the company’s line of railway within the limits of the city of Trenton. The pertinent facts, -underlying the controversy are these: The common council of Trenton passed an ordinance, which was approved on December 31st, 1902, authorizing the traction company to construct and operate a street railway on Callioun and West Hanover streets, in Trenton. 'Fliis ordinance, conferring certain rights and imposing certain limitations upon the compan}7, required .that, as a condition precedent to the enjoyment of the privileges granted, the company should file with the city clerk of Trenton a contract, wherein it would covenant with the city to abide hy and fully perforin all the matters and things in the ordinance contained on its part to he observed, kept and performed. Such contract was duly executed and filed.
    “The sixth section of the ordinance under consideration is as follows:
    “ ‘The rate of fare within the present limits of the City of Trenton for each passenger shall be three cents, and outside of the city limits, within a radius of five miles, five cents, and shall entitle the passengers to one continuous ride in the same general direction, and each passenger shall be entitled to one transfer ticket for passage to another line of said company at all points of intersection of other routes, if such transfer be necessary to enable him to continue to his destination; any child under five years of age, accompanied by a parent, guardian or other person paying fare, shall be carried free; the mayor is hereby empowered to revoke the ‘license of any car, which is not run in accordance with this section.’
    “'The lino of the traction company extends from its terminus, on West Hanover street, in the city of Trenton, westward^ to the raceway of the 'Frentón Water Power Company’s canal. At that point the traction company connects with a. track laid hy the Trenton City Bridge Company across the bridge over the Delaware river, between Trenton and Morrisville, in the State of Pennsylvania. This track in turn goes to the tracks of the Yardley, Morrisville and Trenton Street Railway.Company, which run from Morrisville to Yardley, in the State of Pennsylvania. These companies are and always have been owned and contioiled hy the same interests.
    “When continuous traffic from Trenton to Yardley hy the same ear running from one terminus to the other was established the rate of a single fare for the whole distance was fixed hy the three companies at five cents, and was so continued for years and until February, 1902, when the rate was increased to ten cents.
    “Yardley is within a radius of five miles from the traction company’s terminus on West Hanover street, in Trenton, and the claim of the city is that the raising of the fare to ten cents was a plain violation of the limitation in that behalf contained in the ordinance which was accepted by the traction company in the agreement executed with the city, and that therefore the mayor had a right to revoke the license of the car on which the excessive fare was charged, and that no injunction should he allowed.
    “It may be, as was said upon the argument, that the traction company cannot afford to carry passengers from Trenton to Yardley for five cents; that that rate of fai*e heretofore charged has proved well nigh ruinous to the company, and that it cannot continue to exist under such hard conditions. But this, in the language of Mr. Justice Swayze, in Stockley v. Perry, 26 N. J. L. J. S, ‘may be a very good reason why a man should not make such a contract, but it is no reason why the courts should refuse to enforce the contract when made;’ and, as I said, in Poole v. Supreme Circle (memorandum recently.filed), The plea -of necessity is never, as I understand it, a valid defence against the performance of a contract-.’
    “The power of the city'' to impose the terms and conditions in the ordinance contained is undoubted, and the issue therefore narrows itself to one of construction only, and the question is: Does the ordinance permit the charge of a fare of three cents within the city limits, namely, from the terminus, on West Hanover street, to the raceway of the water power company’s canal, and an additional five cents within a radius of five miles from the last-named point or city limits; or does it mean that the distance of five miles is to be measured from the terminus in Trenton to a point outside of the city limits?
    “In my judgment, the question propounded should be answered in favor of the city’s contention. In aid of this construction comes the clause immediately succeeding that limiting the rate of fare, which says that each passenger shall he entitled to one transfer ticket for passage to another line of the company at all points of intersection of other routes if such transfer be necessary to enable him to continue to his destination. Although it is a fact that at the time when the ordinance was approved the traction company’s railway did not connect with the line running over the Delaware river bridan, as the line was not then built. nevertheless, the building of that railway was in contemplation,, else the language
    ‘shall entitle the passenger to one continuous ride in the same general direction and each passenger shall be entitled to one transfer ticket for passage to another line of said company at all points of intersection of other routes, if such transfer be necessary to enable him to continue to his destination,’
    would have been meaningless. These provisions are all' in the same section, and are in the conjunctive. Besides, the construction contended for by the city is one that the company itself adopted and acted upon for years, and the court may lay hold of this practical construction given to the ordinance and contract by the parties in deciding this question. The court is willing- to believe that the words mean wliat the traction company, by its actions, has said they mean.
    “The views above expressed lead to the dismissal of the hill and consequent dissolution of the injunction.”

      Mr. Frank S. Kalzmbach, Jr., for the appellants!

      Mr. Charles E. Bird and Mr. Charles E. English, for the respondents.
   The opinion of the court, was delivered by

VOORHEES, J.

This appeal reviews a decree of the court of chancery dismissing an injunction bill, thereby terminating the preliminary injunction which had issued thereon. The facts are fully and accurately set out in the conclusions written for the court of chancery by the present chancellor.

That a municipality, as a condition precedent to granting permission to a traction company to construct and operate a street railway within its corporate limits lias power to impose lawful restrictions, in the interest of the public, that regulations of rates of fare are properly classed among such restrictions and come within the terms of the statute, and that the acceptance of such, an ordinance by the company constitutes a contract axe too well settled to require discussion. The contract thus entered1 into is evidenced by the terms of the ordinance and is to be construed by the ordinary rules of law applicable to that subject.

The contract before us for construction is found in the sixth' section of the ordinance and is set out in full in the opinion written for the court of chancery. The traction company was a-Hew Jersey corporation, whose operations were confined by law to this state. It could have no lines without this state. There is no expression, even intimating that the parties were contracting for any other corporation. The inference is that they lawfully contracted for, and in the absence of express words to the contrary, that they intended to bind themselves only and not other parties. The obligation of the traction company was to carry passengers over its own lines for the stipulated fare, not over the lines of another company. The rates were clearly expressed to be three cents within the city of Trenton, and five cents outside of the city limits, within a five-mile radius. If the city had intended to bind the Hew Jersey corporation to pay toll, across a bridge of another corporation, which is quite distinct from a rate of fare, and to bear the charge of a foreign corporation for transportation over its lines, it should have used apt words to-express that meaning. The contract, upon its face, does not róstate, and the presumption is to the contrary.

The. traction company, subsequently to the passage of the ordinance, became the owner of the stock of the Pennsylvania corporation and of the bridge company. The ownership of the stock of the other companies by the Hew Jersey corporation does not alter'this presumption, even if such control had been vested in the Hew Jersey corporation at the time of entering into the contract, ri fortiori it must he without significance or bearing, when such control had not then been acquired. The contract of a stockholder, made in his own name, is not binding upon a corporation, the stock of which h,e owns and controls. Clement v. Young McShea Amusement Co., 70 N. J. Eq. (4 Robb.) 677; Thomp. Corp. (2d ed.) § 1386.

The transfers which the company obligated itself to give are in express terms limited “for passage to another line of said company,” and the words “continuous ride in the same general direction” must he construed to mean a journey upon, and over the ■company’s own tracks.

I.t has not been shown that the fixing of fare between Trenton ■and Yardley, by the joint action of the. three corporations, was. by reason of the language of the contract, and because that agreement was binding upon all the companies. Hence, the effect of this joint action would not amount to a practical construction •of the ordinance.

A practical construction of a. contract becomes evidential only when the writing is ambiguous, and where it appears that the ■acts done under it were those of the very parties thereto, and were done in pursuance and by reason of it. Rogers v. Colt, 21 N. J. Law (1 Zab.) 704; Stewart ads. Lehigh Valley Railroad Co., 37 N. J. Law (8 Vr.) 53; United Boxboard and Paper Co. v. McEwan Brothers Co., 76 Atl. Rep. 550; McMillin v. Titus, 222 Pa. 500; Sternbergh v. Brock, 225 Pa. 279.

We, therefore, conclude that the contract was wholly between the Hew Jersey corporation and tire city, that it had reference to ■the lines of that company only, and did not obligate the Hew Jersey company to procure transportation over the lines or property of either of the other companies, .and that the action of the mayor, in. revoking and annulling the car licenses, under the power for that purpose, conferred upon him by the ordinance, 'because, to quote the language used by him in his order or revocation,

'“the rate of fare charged by said company for the transportation of passengers on said cars between the City of Trenton and the Borough •of Yardley aforesaid (the said Borough of Yardley lying and being outside of the city limits, within a radius of five miles), is the sum of ten cents, being an amount in excess of the fare which by the terms of said ■section of said ordinance of said Company is authorized and permitted to •charge for the transportation of passengers for a continuous ride within ■said radius,”

was not warranted.

The order appealed from will be reversed and the hill restored io the files, and the preliminary injunction continued.

For affirmance—Trenchard, Iyalisoh, AATiíte—3.

For reversal—The Chieb-Justice, Garrison, Swatze, Bergen, Voorhbes, Minturn, Bogert, A^redenburgh, Congdon,. Treacy—10.