author: Stevens, V. 0.

text:
    Alfred V. D. Genung v. Anna L. Harvey et al.
    [Decided July 24th, 1911.]
    B. conveyed to G., by separate deeds at different times, two adjoining lots, each deed providing that the lot covered by it was conveyed subject to the condition that no building should be erected thereon nearer to the street line than fifteen feet. This restriction is not shown to have been part of any general scheme; and B. is not shown to have had any remaining lands. G., while owner of both lots, gave a mortgage on the lot first conveyed, which did not reimpose the restriction; and after the giving of the mortgage, but before its foreclosure, -under which defendant acquired title to the mortgaged lot, complainant became the owner of the other lot under deed from G.—Held, that B., by conveyance of the second lot, having no lands remaining, having lost the right to enforce in equity the restriction on the first lot, G. by reason of this and because of the uniting in her of the ownership of the two lots also lost it; so that, she not having revived such right by reimposing such restriction in her mortgage, complainant, who had only such rights as she had, could not enforce it.

      Mr. 11 ugh B. Reed, for tbe complainant.

      Mr. Charles II. Ivins, for the defendants.
   Stevens, V. 0.

This case is somewhat perplexing, but <3n careful analysis the proper solution of it does not seem to be doubtful.

The bill i% filed to restrain the violation of the following covenant, contained in a deed of Asbury Park property made by James A. Bradley to Mary J. Genung;

“Said premises (a lot one hundred feet square at the southeast corner of Grand avenue and Munroe avenue) are hereby conveyed subject to the following conditions: that no house, -cottage or other building shall ever be erected thereon nearer to the line of said Munroe and Grand avenue than fifteen feet.”

The complainant owns an adjoining lot on Munroe avenue to the east of the above lot, which was conveyed, with a similar covenant, to Mary J. Genung five years afterwards. The ease is peculiar in the circumstance that both complainant and defendant derive title, not only from Mr. Bradley, but also from Mrs. Genung. It is this which differentiates it from most of the cases in our reports.

The complainant’s chain of title is as follows: Mr. Bradley conveyed to Mrs. Genung in 1883. Mrs. Genung conveyed to Frank Genung in 1893, and he convéyed to complainant in 1895.

The defendants’ chain of title is as follows: Bradley conveyed to Mrs. Genung in 1877. Mrs. Genung mortgaged to the Mutual Life Insurance Company in 1888. On foreclosure of this mortgage, Wooley, sheriff, conveyed to Berry in 1896. Berry conveyed to the Asbury Park bank in the same year. The bank conveyed to Stroud, who, in 1906, conveyed to defendant Anna L. Harvey.

The question is whether the complainant can avail himself of the covenant made'by Genung to Bradley in 1877. There was no restrictive covenant in the mortgage from Genung to the insurance company, none in the sheriff’s deed, none in the deed from Berry to the bank, and none in the deed from Stroud to defendant. There was such a covenant in the deed from the bank to Stroud.

In Leaver v. Gorman, 73 N. J. Eq. (3 Buch.) 129, I had occasion to examine the cases, and I summed up the result of them as follows: “A court of equity will restrain the violation of a covenant entered into by a grantee, restrictive of the use of the lands conveyed, not only against the grantee-covenantor, but against all subsequent purchasers having notice of the covenant, whether it run with the land or not. There is, however, this distinction: The original grantor, in imposing the covenant upon the grantee, either may or may not bind himself. If he does not bind himself, then his grantee, having no right of action against him, cannot pursue any other grantee to whom he may subsequently convey the whole or a part of the remaining land.” There is an exception to this rule, that a prior grantee cannot sue a subsequent, where a general scheme is proved, but neither in that ease (which was an Asbury Park case) nor in this was any such scheme shown to exist. The exception may therefore be dismissed from view.

In the case in hand, Bradley conveyed the defendants’ lot first. Had he afterwards conveyed the complainant’s lot to any one but Mrs. Genung, the complainant’s right to an injunction would have been clear. But he did not. He conveyed both lots to Mrs. Genung. The situation, after these conveyances, was this: Bradley himself could, in respect of either lot, have sued Mrs. Genung at law for any violation of the covenant. His right thus to sue was absolute. But in equity it was subject to this restriction. He must have shown, not merely technical violation, but also substantial injury to the land that remained to him. This phase of the subject was considered by Yice-Chancellor. Green in the elaborate opinion which he delivered in the leading case of DeGray v. Monmouth Beach Club House Co., 50 N. J. Eq. (5 Dick.) 329. I will not, therefore, do more than state the reason of the difference, which is this: If grantor has no remaining lands, he has nothing that needs protection by injunction, and, consequently, the remedy at law is adequate.

Now, Mr. Bradley, when, in 1877', he conveyed the defendants’ lot to Mrs. Genung, was the owner of complainant’s lot, and no doubt the owner of more land on the same street. So he had, ait that time, property to be protected. It was certainly an advantage to him as such owner to have been in a position to have prevented Mrs. Genung from building up to the street line and so depriving his property of light and air and perhaps of other benefits. But when, in 1882, he sold the lot to Mrs. Genung its situation with respect to light and air ceased to concern him. He could not have come into this court and asked for relief in respect of that lot, whatever might have been his right in respect of any other property owned by him, if he then owned any.

Then we come to the case of Mrs. Genung. While Bradley remained the owner of complainant’s lot, Mrs. Genung could not have built beyond tire line, because she would have injuriously affected it, but when, in 1882, she became its owner, she could do as she pleased, subject to her liability at law, unless, by doing so, she injuriously affected some other property of Mr. Bradley. There is absolutely no proof that in 1882, or afterwards, Mr. Bradley had any property that would have been injuriously affected by so building, or, for that matter, outside of common report, any proof that he was the owner of any other property on that street. I have already said that there is no proof of any general scheme. And so, in 1882, the situation was this: Mr. Bradley might have sued at law for a violation of the covenant, but had no sufficient interest to sue in equity. Mrs. Genung could have built over the line without interference from this court, unless it could be said that as owner of complainant’s lot she might have sued herself as owner of defendants’ lot, which is absurd.

Bradley’s right having ceased, and Mrs. Genung having no right to sue herself, if complainant now has any right under the covenant, it must be because it has been in some way or other revived. Now, there is absolutely no evidence of revivor. On the contrary, it appears that when Mrs. Genung mortgaged defendants’ lot to the insurance company, she not only did not reimpose the covenant for the protection of the lot which became complainant’s lot, but she inserted in the mortgage a covenant of warranty of peaceable possession. If, after having given the mortgage, she had attempted to derogate from her grant, she could not have succeeded, but in point of fact she never did. She made no other conveyance of defendants’ lot, but permitted it to be sold in the foreclosure proceedings, and the purchaser at the sale acquired all the title and interest that Mrs. Genung had when she mortgaged.

It is argued that the mortgage was a mere pledge; that it subsisted as such when Mrs. Genung conveyed to complainant’s grantor; and that as he was not made a party to the foreclosure, his right to the benefit of the covenant was not foreclosed. The fallacy of the argument lies in the assumption that the right to sue existed in Mrs. Genung after she had acquired title to both lots; that after she mortgaged, she possessed an equity of redemption not only in the land but in the covenant that would, had complainant’s lot remained in Bradley’s hands, have barred the land. But, as I have already shown, unity of ownership in Mrs. Genung extinguished her right to sue—she could not, in her character of owner of the one lot, sue herself for violating the covenant as owner of the other.

Complainant relies upon Winfield v. Henning, 21 N. J. Eq. (6 C. E. Gr.) 188: The case bears some resemblance to the case in hand. There the covenant was that certain houses should be set back ten feet from the street line. The deed conveyed four lots. -The grantee erected five houses upon them. He first conveyed one of the houses to a grantee through whom complainant derived title, and then another house to a grantee through whom defendant derived title. The defendant was restrained from building over the restricted line. It was proved that the original grantor, Coles, was the owner of other property in the neighborhood, for the benefit of which the covenant appeared to have been given. The chancellor said: “In a suit by the grantors there would be no question but that this stipulation would be enforced against any owner of this tract or any part of it who derived his title through this deed. * * * Both parties are bound to the grantors in the Coles deed to keep this front free from buildings. Each is subject to the easement over his lot in favor of those subsequently deriving title from Coles, and each is equitably and justly entitled to the advantage which the observance of this stipulation by his neighbor may be to him.” From a perusal of the opinion it is apparent that the chancellor based the equity of complainant’s case upon the fact that the original grantor could, by reason of his ownership of other land, enforce this covenant against both parties. Here it does not appear that Mr. Bradley has, or in 1893 when complainant’s grantor took title had, any such right. It was not the existence merely of a covenant suable at law that gave the right, but the fact that Coles, the covenantee, as the owner of nearby property—property that was injuriously affected by the breach of the covenant—could have relief in equity for the protection of that property. . The complainant was put in Coles’ shoes.

As the present case lacks this all-important element, it is obvious that Winfield v. Henning is not a precedent in point.

I ma3r add that in view of the numerous discussions which this important subject has undergone since that case was decided, it may be questionable whether the chancellor’s suggestion that the, ease was one of apparent and continuous easement can be agreed to. If an owner has two lots, having houses on the same line'and sells one of them, using nothing but the ordinary language of conveyancing, it could hardly be elaiined that there has arisen, by implication from the circumstance that both houses stand on the same line, an apparent and continuous easement in favor of either. I do not see how the existence of a covenant held by a third party which would enable that third party to enjoin the owners from building beyond the line, to the detriment of his (the third party’s) land, could create an easement in each of the two lots for the benefit of the other. It seems to me that if it create any easement (and it has been held that it does not)—Brewer v. Marshall, 19 N. J. Eq. (4 C. E. Gr.) 537; Hayes v. Waverly and Passaic Railroad Co., 51 N. J. Eq. (6 Dick.) 345, 349—it would be one attaching only to the covenantee’s land. And it is to be remembered that in cases of this kind the right to an injunction is not absolute even in the covenantee. He may lose his right by conveying all that he owns or by allowing or encouraging others to violate the covenant, or the character of the neighborhood may change. I shall not pursue the matter further. It is enough to say that the case cited does not appty, for the reason above assigned. I think the bill should be dismissed.


source: Caselaw Access Project

author: Stevens, Y. C.

license: Public Domain

text:
    Henry Doremus et al. v. The Mayor and Aldermen of Paterson.
    [Decided June 20th, 1911.]
    1. A decree restraining a city, its officers, agents and employes from continuing to pollute the waters of a river from and after a given date, reserving leave to apply to the court for further time, if, notwithstanding the exercise of due diligence, the mayor and aldermen of the city should be unable to cease polluting the river by said date, unappealed from, is binding, as the law of the case, and if the city desires more time, it must, according to the terms of the decree, show that it has exercised due diligence.
    2. On a petition by the city praying that the injunction restraining the city after a given date from polluting a river should be stayed, and not be issued until a future named date, averring that it had exercised due diligence and stating the particulars thereof.—Held, that the acts relied on did not constitute due diligence.
    3. As the city appeared to have misapprehended the scope of the decree the case should be set down for further hearing, at which the city officials would have an opportunity of showing what it and they have done towards a solution of the problem, and what it is proposed to do. The court will then be in a position to say whether any or what further time shall be granted.

      Mr. Edward F. Merrey, for Paterson.

      Mr. Hi chard V. Lindabury. for tlie complainants.
   Stevens, Y. C.

This is a petition by Paterson praying that the injunction restraining the city after March 26th, 1911, from, polluting the Passaic river should be stayed and not issued until March 26th, 1916.

In its amended answer to the bill filed by the property owners, Paterson admitted that it was discharging its sewage into the river and elected rather than submit to an injunction to make such compensation to the complainants for the diminution in value of their lands and property rights as should be ascertained by this court to be just. It expressly stated that such injury or taking was to be temporary and “was to continue no longer than five years from the date of the filing thereof” (March 26th, 1906).

The court assessed the damages on this basis and then made a decree that the city, its officers, agents and employes should be restrained from continuing to pollute the waters of the Passaic from and after the 26th day of March, 1911.

The decree, made on June 26th, 1908, provided that if notwithstanding the exercise of due diligence the mayor and aider-men of the city of Paterson should be unable to cease polluting the river by the time aforesaid, leave was reserved to apply to this court.

This decree, unappealed from, is binding as the law of the case. If Paterson desires more time it must, according to its terms, show that it has exercised due diligence. In its petition now filed Paterson avers that it has exercised due diligence. It says that it has made exhaustive inquiry, and has ascertained that its sewage can be best and most cheaply disposed of by means of the contemplated trunk sewer. It further says that its inquiry'has been followed up by action—that it has signed a draft of a contract prepared by the Passaic Valley Sewerage Commissioners. It has, however, done so with the following important reservation:

“Be it further provided that the actual work contemplated in this contract shall not be commenced nor shall the commission become obligated to any contractor for any part of said work until such time as the commission shall have received actual bona fide offers from a reputable and responsible contractor or contractors to complete said work within the sum of twelve million two hundred and fifty thousand dollars, including the costs of rights of way and other necessary property and equipment.”

This modification has not been accepted by the commission, and is not, as was stated on the argument, agreeable to it.

The resolution containing this proviso was passed on January 13th, 1911, and the executed draft containing the reservation in question was delivered to the commission in the same month. As far as the papers disclose, Paterson has done nothing since.

In its petition, Paterson makes the following statement:

“This defendant further shows that its officers realize the nuisance created and damage done by its present method of sewage disposal not only to the complainants but to many of its own citizens and that they are anxious to remedy this condition as promptly as possible.”

From this it is clear that the city and the complainants are in accord both as to the character of the nuisance, which is constantly increasing, and as to the desirability of its speedy abatement. The city, in its petition, admits that the trunk sewer plan is the cheapest and most feasible. Such being the situation, it is no longer a question whether it is or is not advisable to abate the nuisance or even, as it would seem, a question of the best method of abatement. It is rather one of the practical execution of the work. It is manifest that in the exercise of the due diligence demanded by the decree, the city must not only give its assent to a plan in the abstract, but must take some action—action that will be effective. It must either abandon the modification, if not accepted, and come to some understanding with the commission, or, if it deems that inexpedient, it must proceed with an alternative method of sewage disposal. It cannot, after having proposed an unacceptable proviso, stand still and do nothing further. That is not due diligence.

As the city appears to have misapprehended the scope of the decree, I think the case, should be set down for further hearing. The city officials will have an opportunity of showing what it and they have done towards a solution of the problem, and what it is proposed to do. The court will then be in a position to say whether any or what further time shall be granted.

I think further testimony can best be taken in open court where counsel will have an opportunity for cross-examination, and where either of the parties will be at liberty to subpoena the members of the sewerage commission. It will be remembered that according to the terms of the decree, not only the corporation but its officers, agents and employes are restrained from continuing to pollute the water. It is to the case thus situated that the evidence will be directed.


text:
    William T. Day, trustee, &c., v. Angeline E. Faulks et al.
    [Decided September 26th, 1911.]
    Where, after corporate stock is bequeathed to one for life, a stock dividend is declared, the new stock representing more than the earnings after the death of testator, the life tenant is entitled only to a charge thereon for the proportion thereof representing such earnings.

      Mr. Edward A. Day, for the life tenants.

      Mr. Qlarh McK. Whitlemore, for the remaindermen.
   Stevens, Y. C.

Michael W. Devine died in November, 1895, leaving a last will by which he gave to his son Michael the shares of his estate to which two of his sons and daughters were thereunder entitled, in trust, to pay them the -rents, issues, profits and income of their respective shares during their lives, and after their deaths, to transfer their respective shares to their issue, or, if there should be no issue, into the residue.

At the time of his death, testator owned filly-six shares of the capital stock of the Singer Manufacturing Company. On December 19th, 1900, the company declared a stock dividend of two hundred per cent, on the capital stock theretofore issued, of which the par value was $10,000,000. It thus increased its capital stock to $30,000,000. On June 17th, 1910, it made a further stock dividend of one hundred per cent.; the effect of which was to increase the capital stock to $60,000,000.

Pursuant to a decree of the orphans court of Union county, the first stock dividend ivas apportioned according to the rule of the Lang Case, 57 N. J. Eq. (12 Dick.) 326, fourteen shares and a fraction going to the life tenants as earnings, and the rest to the trust estate as principal. The stock allotted to principal was subsequently sold and does not enter into this inquiry. The question is, to whom do the new fifty-six shares belong—to the life tenants or to the trustee as the representative of the remaindermen ?

Although it has been determined, generally, that stock dividends, declared out of profits made since testator’s death, go to the life tenants, the precise question here raised has not been examined or passed upon.

In Ballantine v. Young, just decided by me (post p. 70), I have had'under consideration vario as questions relating to the apportionment of stock dividends and extraordinary cash dividends, and I have there referred to the numerous conflicting decisions on this perplexing subject. Until the court of errors and appeals sees fit to review them and alter the rule heretofore adopted, it is not open to question in this court. I must start out with the assumption that stock dividends, declared after the death of testator, go, in so far as they represent earnings made since his death, to the life tenants.

So far there is no difficulty. But in the case in hand, the question, distinctly raised I think for the first time in this court, is whether, under the-name of stock dividends, the life tenants are entitled to anything more than earnings. This question arises under the following circumstances:

At the time of the declaration of the dividend of June, 1910, the company had a surplus of about forty-five millions of dollars. Part of this surplus was represented by their enlarged'works and part by cash, merchandise, accounts receivable and other items. They desired to capitalize this to the extent of $30,000,000, and so they issued the new stock which, with the old, made a total capitalization of $60,000,000. The stock of the company, before the new'issue, was selling for from $565 to $615 a share, and even more. After it was made, Mr. Clare says that the shares “ranged from $300; then declined to $285, and later sole] up as high as $355.” The effect of the now issue, in the stock market, was, therefore, to reduce the value of the $30,000,000 of ■old stock one-half.

This will be apparent from the following figures:

300.000 shares X $600 = $180,000,000;

600.000 shares X $300 == $180,000,000.

The selling price harmonized with the fact. Whereas before, the whole property was represented by $30,000,000 of siock, it is now represented by $60,000,000; in other words, two shares now represent the same proportionate interest that one formerly did; and the effect of the transaction, if all the stock had been in like case with that in hand, and if the contention of the life tenants be sound, would have been to have transferred to the life tenant not only the $30,000,000 of earnings, but an interest equal to $60,000,000 as well. This $60,000,000 is, nearly all, capital, and so, as the result of the action’ of the company, the life tenant would have gotten, not only its capitalized earnings, but one-third of its capital as well. Is there any rule of law heretofore declared by this court which compels this unjust result? I know of none. The principle of the Lang Oase is to preserve the corpus of the estate intact, and such is the principle in analogous cases. In Ballantine v. Young it appeared that the stock of the Central Trust Company had been selling at a large premium. There was a large surplus. The directors declared a cash dividend of two hundred per cent., and, contemporaneously, directed a new issue of stock which the stockholders were at liberty to take at par and pay for with that dividend. The question was, to whom the dividend and the option belonged—to the life tenants or to those in remainder ? It was held that the cash dividend belonged to the life tenants (subject to the apportionment prescribed in the Lang Case), and that the option to purchase was part of the corpus, to be disposed of as such; but that inasmuch as the trustees had devoted the cash dividend to the purchase of the stock, the life tenant was entitled to a charge upon it for his proportion of that dividend. The result of that transaction was, for all practical purposes, like the result of the transaction under consideration; for it was morally certain that the option would be availed of. The numerous cases, therefore (DeKoven v. Alsop, 205 Ill. 309; Davis v. Jackson, 152 Mass. 58; Greene v. Smith, 17 R. I. 28; Hite v. Hite, 93 Ky. 257; Eisner's Appeal, 175 Pa. 143; Richmond v. Richmond, 108 N. Y. Supp. 298; Brown v. Brown, 72 N. J. Eq. (2 Buch.) 667), which hold that where the option to purchase has a money-value, that value goes to the principal and not to the life tenant, are strong authorities for the proposition that whatever enters into the value of the new stock, besides earnings, is really principal. It would be highly inconsistent to hold that the option to purchase is capital in the one case, and that the value beyond earnings is income in the other. That the policy of the courts of this state is to preserve the principal intact for the benefit of the remaindermen appears from the following cases: Van Blarcom v. Dager, 31 N. J. Eq. (4 Stew.) 783; Willard v. Willard, 21 Atl. Rep. 463; Outcalt v. Appleby, 36 N. J. Eq. (9 Stew.) 73; Helme v. Strater, 52 N. J. Eq. (7 Dick.) 591.

Some confusion of thought arises from the use of the term “stock dividend.” In the very resolution under consideration, it is said that the “directors declare a stock dividend of $30,000,-000.” What they really do is to issue certificates whose face value is $30,000,000, and, at the same time, to put, permanently and irrevocably, $30,000,000 into capital. But the certificates thus issued, from the very beginning, represent not the $30,000,-000 capitalized, but, like the old certificates, the entire property of the corporation. If the life tenant gets all the new stock, he gets something that represents, not a share of the earnings only, but of the entire property. To the extent that the stock represents the $30,000,000 of surplus he gets earnings; beyond that he gets principal, except in so far as the stock represents undivided earnings still in the treasury (a comparatively small matter), to which, however, if the company do not distribute them in his lifetime, he is not entitled.

Where the beneficial ownership is in one person only, it makes little difference whether his interest is represented by one share worth $100, or two worth $50, but when persons take in succession—one the income for his life and the other the principal after his death—the court must look into the substance and effect of the transaction unless it is willing to permit a distribution of capital that was never intended by testator. In the Ballantine Casa, post p. 70, adverted to the fact that the Supreme Court and other tribunals whose decisions carry great weight, have repudiated the Pennsjdvania rule giving stock dividends, without reserve, to the life tenant. If this rule is to prevail here, it ought not to be extended beyond its reason. The ground upon which the rule is based is that the life tenant ought to have the earnings when the company makes a disposition of them. Its reason will go no further than to charge the earnings on the new stock. This will at once effectuate the intention of the testator and obviate the injustice, if it be an injustice, of letting capitalized earnings go to the remaindermen.


author: Stevens, V. C.

text:
    Jeanette Ballantine et al., trustees, v. Alice J. Young et al.
    1. Where a corporation which had accumulated a surplus several times greater than its capital, in addition to its usual dividend, declared a two hundred per cent, dividend, at the same time giving the stockholders power to subscribe at par for a new issue of stock of the same amount, the dividend was a cash dividend, and not a stock dividend.
    2. While ordinary cash dividends, where stock is bequeathed to one for life, remainder to another, go to the life tenant, the extraordinary dividends are apportioned between him and the remainderman; and hence, where a corporation which had accumulated a surplus several times greater than its capital, in addition to its regular dividend, declared a two hundred per cent, dividend, at the same time giving the stockholders the power to subscribe for a new issue of stock of the same amount, the dividend was extraordinary, and should be apportioned in the ratio that the surplus at testator’s death bears to the surplus accumulated thereafter up to the time it was declared.
    3. Where trustees under a will held the legal title to stock in a corporation which paid very large dividends, and had accumulated a very large surplus, the trustees were, upon the declaration of an extraordinary cash dividend, justified in investing the dividends in a new issue of stock, which the corporation at the same time offered its stockholders at par.

      4. The right to subscribe for new shares which command a premium is considered a part of the principal, where corporate stock has been bequeathed to one for life yath remainder to another.
    5. Where trustees .under a will were authorized to continue any investments or securities, and part of the estate consisted of stock in a corporation which, to treble its capital stock, in addition to the regular dividend, declared a two hundred per cent, cash dividend, and gave all shareholders the right to purchase two new shares for each share they then owned, the trustees having purchased such shares were entitled to hold them; for by investing a cash dividend in stock they merely preserved their proportionate interest in the property, and did nothing more than continue their investments.
    6. Where corporate stock was bequeathed to one for life, remainder to another, and the corporation made a stock dividend, the stock so issued was held to be an extraordinary dividend, to be apportioned between the life tenant and the remainderman.
    7. In apportioning a stock dividend between the life tenant and the remainderman, the apportionment should be made on the basis of the company's accounts.
    8. Where corporate stock, which was bequeathed to one for life and remainder to another, secured the holder the right to purchase on favorable terms shares of another corporation, that right is capital belonging to the remainderman.
    On bill.

      Mr, -John 0. IT. Pitney, for the complainant?.

      Mr. Gilbert Collins, for the remaindermen.

      3Tr. Chauneey G. Parker, for the life tenants.
   Stevens, V. C.

This is a bill filed by trustees of the will of John Ballantine asking for directions.

The testator owned twenty-five shares of the Central Trust Company of the par value of $50 each. Its capital stock was $1,000,000. Its undivided surplus at the. time of testator’s death (April 27th, 1895), $5,776,113.70. It paid regular semiannual dividends at the annual rates of, first, fifty per cent., then sixty per cent., and then eighty per cent. On April 28th, 1909, the surplus had increased to $15,579,696.65. In June, 1909, its capital stock, by appropriate action on the part of the directors and stockholders, was increased to $3,000,000. The stockholders were given the right to subscribe at par for the new issue of $2,000,000—that is, each stockholder might subscribe for two new shares for every old one he held. Contemporaneously, a special or cash dividend of two hundred-per cent, was declared. The trustees took this dividend and used it to pay for the new stock, which stock they still hold.

Bjr his will, testator gave his residuary estate to trustees in trust (speaking generally) to pay over a part of the income to his children during their respective lives, and at their deaths to divide certain parts of the principal among his grandchildren.

The first question is, who is entitled to the dividend of the Central Trust Company issued under the circumstances above described—the life tenants or the remaindermen?

It seems to me plain that the dividend is a cash dividend and not a so-called stock dividend. There is nothing either in the substance or form of the transaction that indicates that it was other than what it purports to be. Gray v. Hemenway, 92 N. E. Rep. 31. It is true that the company, at the time it declared the dividend, gave an option to subscribe to the new stock, and that its officers anticipated that the new stock would be paid for with the cash dividend, but it did not attempt to compel the subscription. The stockholder could do as he pleased. He would, almost as a matter of course, elect to take the stock with the money thus provided; for the stock was selling for many times more than its par value.

Ordinary cash dividends go, of course, to the life tenant. Is this an ordinary or an extraordinary dividend? It seems to be extraordinary for three reasons—jfirst, it was declared, in addition to the regular dividend; second, it was much larger, exceeding the net profits made in the preceding year, and third, it was evidently made for the special purpose o£ enabling the stockholders to avail themselves of the new subscription. If these concurring circumstances do not make the dividend extraordinary, for the purpose of apportionment, I do not know what could make it so. The distinction has been adverted to, apparently, with approval by the court of .errors and appeals in the Lang Case 57 N. J. Eq. (12 Dick.) 326, and I do not feel at liberty to disregard it. I, therefore, think, on the doctrine of that case, that the dividend is apportionable in the ratio that the surplus at testator’s death bears to the surplus accumulated thereafter up to the time the dividend was declared.

The trustees, as a matter of fact, took the dividend and invested it in the new shares, which sell at a very large premium. They were justified in doing so. Bouch v. Sproule, 12 App. Cas. 385; Malam v. Hitchens (1894), 3 Ch. 578; and so the next question is, to whom does this premium belong, to the life tenant or to the remaindermen? It has been held repeatedly that the right to subscribe for new shares, which command a premium, is a part of the principal and belongs to the latter. DeKoven v. Alsop, 205 Ill. 309; Davis v. Jackson, 152 Mass. 58; Green v. Smith, 17 R. I. 28; Hite v. Hite, 93 Ky. 257; Eisner’s Appeal, 175 Pa. 143; Richmond v. Richmond, 108 N. Y. 298; Brown v. Brown, 72 N. J. Eq. (2 Buch.) 667. That the trustees have actually subscribed for and taken the shares cannot alter the legal rights of the parties. By giving the life tenant a charge upon the stock thus held, for his proportion of the cash dividend (Malam v. Hichens, supra), the relative rights of the parties are easily adjusted. So much of it as may be needed will be sold to satisfy the charge.

The next question is whether the trustees have the right to hold the stock that may remain unsold after the charge is satisfied. It seems to me that having the right to take the stock, which, after it was taken, gave them no greater interest in the company than they had before—merely changed the form of their holding—they have the right to retain it. The authority given by the will is “to continue any investments or securities.” By agreeing to take the company’s stock in exchange for the company’s money they are merely preserving their proportionate interest in the property, and so doing nothing more than continuing their investment in it.

The next question relates to the so-called fifteen per cent, stock dividend of the Delaware, Lackawanna and Western Railroad Company. This represents surplus earnings invested in the stock of two branch roads now merged with the main road, and about $3,000,000, applied in 1907, to the payment of maturing bonds issued as part of the capitalization. The whole sum represents surplus permanently devoted to capital account. To whom does this dividend belong? It is strongly contended that it belongs to principal. I feel compelled, however, by the state of the authorities to hold that it is, in part, income, and that it should be apportioned between the life tenant and the remaindermen. While the case of Van Doren v. Olden, 19 N. J. Eq. (4 C. E. Gr.) 176, was somewhat, in other respects, shaken by the decision in the Lang Case, it was not disapproved on this point. On the contrary, it was, apparently without much or any discussion, followed by the court of errors and appeals in Ashhurst v. Potter, 29 N. J. Eq. (2 Stew.) 625. While this latter case stands, there cannot be any doubt as to what this court must do. Since it was decided, the question has undergone discussion by the supreme court of the United States, in Gibbon v. Mahon, 136 U. S. 549, and by the courts of last resort in England, in Massachusetts, in Illinois and other New England states, in all of which it has been held that issues of stock based on earnings are part of the principal. On the other hand, the court of appeals of New York, in McLouth v. Hunt, 154 N. Y. 179, and some western and southern state courts have followed Pennsylvania in giving stock dividends to the life tenant. As a matter of logic, it is difficult to resist the reasoning leading to the conclusion that stock dividends are, in fact, principal; for the life tenant, as is universally held, is not, in the absence of fraud, or improper conduct, entitled to the earnings until they are distributed. They are not, in fact, distributed, but, on the contrary, put permanently into capital account when new stock is, without any money equivalent, allotted to the whole body of stockholders. But discussion is out of place, for Ashhurst v. Potter is, as I have said, controlling. I would merely add that in most cases, at least, stock dividends can hardly be called regular or ordinary dividends. They must, as a rule, be extraordinary. They represent no particular part of the earnings or surplus. Like all the other stock, they represent not only surplus but the entire property of the company. Being extraordinary, they must, according to the rule of the Lang Case, be apportioned where there has been a surplus accumulated before testator’s death.

I think, in the absence of fraud, or some very special circumstance, the apportionment should be made on the basis of the company’s accounts. To apportion them according to the judgment of an expert or of the court as to whether the various items of disbursement are chargeable to current or capital, would be practically impossible. Proof on the one side would necessitate proof on the other. Even if the court, in the case of a foreign corporation, had power to compel exhibition of a multitude of items, stretching perhaps over a series of years, the length of time required for the examination, the expense of it, the doubt, after all, whether items, e. g., relating to the cost of new bridges, new rails, new machinery, new equipment, were properly chargeable to one account or the other, or if to both, in what, proportion, would of themselves be prohibitive of the inquiry.

I have discussed another phase of the question of stock dividends in Day v. Faulks, ante p. 66, in an opinion filed contemporaneously with this. What I said in that case may, to a certain extent, apply here.

For the reasons already given, the extraordinary cash dividend of fifty per cent, paid by the Delaware, Lackawanna. and Western Eailroad Company must also be apportioned. The option to subscribe to shares of the coal company is, evidently, capital. It was the right to purchase on favorable terms a new-thing. If an option to subscribe to^new stock of a corporation, whose stock the trustees hold, is capital, a fortiori, is an option to purchase stock they do not hold.


text:
    Esther M. A. Bennett v. The Association to Provide and Maintain a Home for the Friendless.
    [Decided April 21st, 1910.]
    1. Testatrix, after giving her property to her daughter, not for 'life nor indeterminately, but to her heirs and assigns forever, adds in another clause an authority to sell or otherwise dispose of the whole in any part or portion, and provided as follows: that if the daughter “should die without children, leaving the estate hereby bequeathed to her, or any part or portion of the same, then it is my will that so much thereof or such part or portion of said estate as she may leave at her decease, shall go to” (the defendant).—Held, that testatrix intended to give to her daughter an estate in fee-simple with absolute and unlimited power of disposition.
    2. It was not the whole estate that was to go over, but only such part as the daughter might see fit to leave.

      Mr. Leo Stein, for the complainant.

      Mr. Frank Benjamin, for the defendant.
   Stevens, Y. C.

I think this case plainly falls within the principle of Annin’s Executor v. Van Doren’s Administrator, 14 N. J. Eq. (1 McCart.) 136; McClellan v. Larcher, 45 N. J. Eq. (18 Stew.) 17; Rodenfels v. Schumann, 45 N. J. Eq. (18 Stew.) 383; Tuerk v. Schueler, 71 N. J. Law (42 Vr.) 332, and McCloskey v. Thorpe, 74 N. J. Eq. (4 Buch.) 413, rather than within that of Wilson v. Wilson, 46 N. J. Eq. (1 Dick.) 322; Wooster v. Cooper, 53 N. J. Eq. (8 Dick.) 682, and Tooker v. Tooker, 71 N. J. Eq. (1 Buch.) 513. No one can read the will without being impressed with the conviction that the testatrix intended to give to her “namesake and beloved and adopted daughter” an estate in fee-simple with absolute and unlimited power of disposition. She gives the estate to complainant, not for life or indeterminately, but to her heirs and assigns forever, and she adds in another clause an authority to sell or otherwise dispose of the whole or any part or portion of it.

It is true that she provides that

“if the said Esther May Anderson Bennett [the complainant] should die without children, leaving the estate hereby bequeathed to her, or any part or portion of the same, then it is my will that so much thereof or such part or portion of said estate as she may leave at her decease shall go to the Home for the Friendless

but in thus attempting to give to the home, she runs counter to that rule which declares that “if the testator either expressly or by implication manifests an intent to vest in the first legatee the uncontrolled power of disposing of the property, such power involves the idea of absolute ownership and the limitation over is void as inconsistent with the rights of the first legatee.” Annin’s Executor v. Van Doren’s Administrator, supra. In Wilson v. Wilson and Tooker v. Tooker, supra, the court did not find in the expressions used any clear indication that the life tenant could consume the principal of the estate at his pleasure. Here what is given to the home is not “what remains,” an expression that, taken in connection with the context, may often be construed as “remainder,” but “so much” or “such part or portion of said estate as she (my daughter) may leave at her decease.” In this there is no ambiguity. It is unmistakably indicated that the testatrix desired her daughter to have the unrestricted power to dispose of principal. It was not the whole estate that was to go over, but only such part as the daughter might see fit to leave.

As to the annual subscription of $5, it seems to me that its payment is discretionary with complainant and not obligatory. Pom. Eq. Jur. § 1014; Eberhardt v. Perolin, 49 N. J. Eq. (4 Dick.) 570.


author: Garrison, Y. C.

text:
    George W. Rowan v. Frank L. Yarnall et al.
    [Decided July 14th, 1911.]
    1. Upon complainant’s application to direct a new trial on an issue at law framed and tried in the court designated, with the result that the validity of the complainant’s claim was negatived by the verdict of the jury in proceedings had under the statute entitled “An act to compel the determination of claims to real estate in certain cases, and to quiet the title to the same” (P. L. 1870 p. 20; S (den. Stat. p. 8486), -where such application was rested upon the ground that the verdict was against the evidence, and also because of alleged trial errors committed by the law court—field, that the verdict must be set aside and a new trial had, after examination and consideration of such alleged trial errors as well as of the evidence reported to this court by the law court.
    2. The issue at law must be as broad as the application, and put to the test of the suit at law the validity of the entire claim of the defendant, and not a part thereof only.
    On bill, &c. On motion for a new trial.

      Messrs. Collins Corbin, solicitors of the complainant, for the motion.

      Mr. John P. Lloyd, Mr. Frank P. McDermott and Mr. George S. Silzer, solicitors of the defendants, conira.

   Garrison, Y. C.

George W. Rowan, the complainant, filed his bill invoking the jurisdiction of this court under the "Act to compel the determination of claims to real estate in certain cases and to quiet title to the same,” approved March 2d, 1870 (Gen. Stat. p. 3486), and claimed therein that he was in peaceable possession of the premises in question, and that Frank L. Yarnall, Elric L. Moore and Nella Moore, his wife, made some claim thereto, and he prayed this court to settle and determine the title with respect to the lands aforesaid.

The said defendants just named answered, and in such answer set out their respective claims, and in said answer the defendants, all of them, stated that since the filing of the bill of complaint they had made a bona fide sale of all of their right, title and interest in the said lands for a valuable consideration to the Cliffwood Brick Company, a corporation of New Jersey, and by subsequent proceedings the Cliffwood Brick Company was made a party defendant herein.

A hearing was had before this court, at which the complainant introduced testimony to show that he was in peaceable possession of the lands in question, and the defendants did not produce any evidence, whereupon the court found in favor of the complainant that he had shown sufficient to enable him' to maintain this suit. Whereupon the defendant the Cliffwood Brick Company made application under the fifth section of the act before cited for an issue at law to try the validity of the claim of the said defendant, and thereupon an order or decree was entered herein, and by an order supplemental thereto the issue at law was framed. It was in form an action of ejectment with the Cliffwood Brick Company as plaintiff and George W. Eowan as defendant.

That issue was tried at the Middlesex circuit of the supreme court, and the result of that trial has been certified to this court, and this is a hearing upon a motion on behalf of the defendant-in the feigned issue (the complainant in this suit) for a new trial.

The duty of this court, under the circumstances, has recently received consideration in the court of errors and appeals in the case of McAndrews & Forbes Co. v. City of Camden, 78 N. J. Eq. (8 Buch.) 244, and it is therein held that it is the function of the court of chancery “to consider alleged trial errors as well as the evidence reported to it by the law court for the purpose of determining whether the erroneous rulings (if they appeared) were such as to destroy the value of the verdict as a means of satisfying the conscience of the chancellor.”

No intelligible discussion of the matter is possible without a preliminary statement of facts.

David Noble Rowan at one time owned all of the land in question, together with much more in the immediate vicinity. In 1874 he caused a map to be made and filed which showed various plots or “subdivisions,” as they were termed, which were designated by numbers, and on the map were colored various different colors.

Among such lots or subdivisions were those in controversy in this suit, namely, 45, 46, 47, 48 and the easterly two hundred and fifty feet of 49. It is these lots which the defendant George W. Rowan claimed to own, and which the defendant the Cliff-wood Brick Company also claimed to own, and which were the subject-matter of this suit, and the title to which was the subject-matter of the feigned issue tried at law.

All of the evidence taken at the trial of the issue at law, together with the rulings of the judge, and his charge to the jury, have been returned by him with his certificate to this court, together with a postea in which is recited the verdict.

The Cliffwood Brick Company, the plaintiff in the law suit, the defendant here, claimed paper title to each of the subdivisions or lots above enumerated, and the defendant George W. Rowan, who is the complainant here, claimed paper title to 47 and 48. He did not claim paper title to 45 and 46, but with respect to 45 and 46, as well as 47, 48 and the easterly two hundred and fifty feet of 49, claims, for more than twenty years, to have been in open, notorious, visible, hostile possession.

Failing to find paper title in the Cliffwood Brick Company for the easterly two hundred and fifty feet of lot 49, the judge instructed a verdict for the defendant in the law suit, the complainant here, with respect to that, and left to the jury to determine whether, as against the paper title of the plaintiff, Cliff-wood Brick Company, with respect to lots 45, 46, 47 and 48, the defendant had made out a title by adverse possession; and the jury found that he had not, and thereupon the verdict was for the plaintiff in the law suit, the defendant herein, with respect to lots 45, 46, 47 and 48, and for the defendant in the law suit, the complainant here, for the easterly two hundred and fifty feet of lot 49.

This motion for a new trial is made by the defendant in the law suit, the complainant here.

He sets out numerous reasons why the verdict should not be allowed to stand, and why there should be a new trial. Before treating the different questions raised separately, it will be useful to make a preliminary general statement. As has been before stated, David Noble Eowan, in 1874, filed a map in which all of this land, together with other land, was plotted. There were something over three hundred acres in the entire tract. Various parts of it were used as a farm, as a brickyard, as a summer home, as meadow land upon which salt hay was grown and cut, and part was used by fishermen. The particular part thereof, with which we are concerned, was nearly a half a mile from the mansion-house or large residence on the premises, and was entirely uncultivated, and was not the part that was either farmed, used as a summer home or as a brickyard. A portion of the land in controversy was that from which the salt hay was cut and where the fishing was done. It is a peninsula running out into the waters, on the one side of Earitan bay, and on the other of Stump and. Cheesequake creeks, and is almost triangular in shape. At the broad base of the triangle are lots 45 and 46. Immediately above them are Nos. 47 and 48—47 lying above 45 and 48 above 46. From there out to the end was lot 49; but we are only concerned with the two hundred and fifty feet of 49 which bound lots 47 and 48.

In 1875 David Noble Eowan and Margaret H., his wife, conveyed practically the whole of the tract to Thomas W. Moore, taking mortgages made by Moore for the purchase price, and from that time on there are numerous conveyances from Thomas W. Moore to his son Elric L. Moore, and from Elric L. Moore to Margaret H. Eowan, or to David Noble Eowan as trustee for Margaret FI. Eowan. It is apparently the contention of the complainant here, the defendant in the law suit, that the transaction between David Noble Eowan and Thomas W. Moore was not a straight sale of the land, but was a conveyance from David Noble Eowan to Thomas W. Moore for the purpose of obtaining negotiable mortgages made by Moore for the use of Eowan, and that Eowan never transferred possession to Moore, but either he or his wife, or, later, his son, the complainant, have always remained in possession of all of the land in controversy.

It is the effect to be given to these various conveyances and to the testimony as to adverse possession that is the subject of controversy in this suit. For convenience it will be now well to deal separately with each of the tracts that properly belong together for the purposes of this consideration.

With respect io Igts \!f& and Jf6:

These lots were among those which were conveyed by David Noble Rowan and Margaret H., his wife, to Thomas W. Moore by the deed dated the 1st of January, 1875. On the 17th of February, 1876, Thomas W. Moore and Fannie N., his wife, conveyed all that they had received by the deed just mentioned to Elric L. Moore, thus vesting title in the latter to lots 45 and 46. On the first day of February, 1905, Elric L. Moore and Nella, his wife, signed a deed to Frank L. Yarnall. This paper contains this recital:

“That the said party of the first part, in consideration of the sum of one dollar and other valuable considerations to us duly paid before the delivery hereof, hath remised, released and forever quitclaimed, and by these presents doth ■ remise, release and ' forever quitclaim to the said party of the second part and to his heirs and assigns all that certain tract * *

In the description of the property it is stated to be that “known as part of lot 4 as laid down upon a map” in a certain partition suit, and also on the David N. Rowan map of 1874, “and more particularly described in a deed from David Noble Rowan to Thomas W. Moore, February 4th, 1875, recorded in book 151, pages 447, 456.” Also

“all the estate, right, title, interest, property, claim and demand whatsoever of the said party of the first part of, in and to every part and parcel thereof, with the appurtenances, and all the estate, right, title and interest of the said party of the first part therein, to have and to hold the above-mentioned and described premises, with the appurtenances, unto the said party of the second part, heirs and assigns forever. In witness whereof the said party of the first part have hereunto set their hands and seal the day arid year first above written. Signed, sealed and delivered in the presence of G. Schmalstick,”

and signed “Elric L. Moore, Nella Moore,” without any seals, scrolls or other indications of a seal. The acknowledgment was taken before the witness just named, who was a notary public of New York, and recites that on a day therein mentioned before him

“personally appeared Elric L. Moore, who I am satisfied is the grantor mentioned * * * and thereupon he acknowledged, &c., and the said Nella Moore, being by me privately examined, separate and .apart from her husband, acknowledged that she signed, sealed and delivered the same,” &c.

It is objected on behalf of the complainant, the defendant in the law suit, that this deed does not contain such a description of the premises in question as to be effective to convey. It is conceded that the only part of the description which serves to give information as to the land intended to be.conveyed with sufficient distinctness to identify it, is that which refers to the deed from David Noble Eowan to Thomas W. Moore, February 4th, 1815, recorded in book 151, pages 441, 456. In book 151 of deeds of Middlesex county, at page 441, there is no deed of the character described. At page 456 there is a deed from David Noble Eowan to Thomas W. Moore, dated January 1st, 1815. But I cannot find from an inspection of that deed that I can pick out any land “known as part of lot 4 as laid down upon a map made by the commissioner appointed * * * for dividing the real estate of James Provost,” &c. The deed under review, it will be recalled, describes the land conveyed in the manner just set forth, and then says that it is more particularly described in the deed from Eowan to Moore, dated February 4th, 1815, and recorded in book 151, pages 441, 456. Furthermore, there is no deed, even at page 456, between those parties dated February 4th, 1815. The date of the deed which was there found, which is above referred to, is January 1st, 1815. This latter point, I think, is an immaterial detail.

I concede, as argued by the counsel for the Cliffwood Brick Company, that the courts should seize upon any proper information contained in papers and records which will enable them to give effect to a conveyance, and that if by the use of such proper means it can be ascertained what the parties intended, that course should be followed. In the instance under consideration, however, this principle will not help to sustain the deed as a conveyance, because even by assuming that the reference to the deed from Rowan to Moore is read so as to contain the correct date and the correct page of record, yon cannot, by referring to that deed, determine what land is conveyed by the deed under review.

The Rowan-Moore deed contains a very long description, and I have read it carefully to see whether I can gather therefrom any information as to what land therein described could properly be said to be “known as part of lot 4 as laid down,” &c. As has just been stated, the deed under review conveys land “known as part of lot 4,” &c., and says that it is more particularly described in the Rowan-Moore deed. I cannot tell from the Rowan-Moore deed whether any part of that land was ever known as part of lot 4, and if so, which part thereof was so known; and therefore I cannot say that I can determine by this description in the deed from Moore and wife to Yarnall what land was intended.

Counsel did not debate, and I shall not do more than call attention to the fact that this deed from Moore and wife to Yarnali is—first, a quitclaim deed, and second, contains no seals, and third, has a defective acknowledgment.

I do not think, therefore, that the plaintiff in the law suit, who, of course, must succeed by the strength of his own title, can properly claim to have shown paper title to lots 45 and 46, so far as the claim rests upon the deed just referred to.

The effect of this finding is that the paper title to 45 and 46, at the time of the commencement of the suit in equity, was unquestionably in Elric L. Moore; and he, as will be recalled, was one of the defendants in this suit. And it appears from the proofs that on the 18th day of September, 1906, he and his wife made a deed to the Cliffwood Brick Company which, by a description that is not questioned, conveyed, inter alia, lots 45 and 46.

The bill in this suit was filed about the 5th of July, 1906, and the answer of Yarnall and of Elric L. Moore and wife about the 5th of October, 1906; and it will be recalled that in said answer it was stated that the defendants had sold all of their rights to all of the lands in question and conveyed the same to the Cliffwood Brick Company, and that the Cliffwood Brick Company subsequently was made defendant.

I am clearly of opinion that the claim of paper title on behalf of Elric L. Moore, as against George W. Borvan, was, at the time of the filing of the bill herein, a good claim, and I see no reason why the Cliffwood Brick Company may not obtain the benefit thereof by claiming either in the right of Moore as of the date of the filing of the bill, or in their own right as of the date of the deed to them, which preceded in date the framing of the issue at law.

Since it is entirely clear to my mind that the paper title at the time of the framing of the issue at law was either in the) defendant Elric L. Moore or in the defendant the Cliffwood Brick Company, they must be found to be entitled to a determination in their favor, unless the claim of the defendant in the law suit, the complainant herein, is justified and proven that he has title as against them by reason of adverse possession. This issue of adverse possession was left to the jury, and it found in favor of the Cliffwood Brick Company, the plaintiff in the law suit, and against Eowan, the defendant in the law suit and the complainant here. The latter complains that the verdict was against the weight of the evidence; hut I shall not pass upon this, because, as hereinafter set forth, I find that a new trial of the issue is required, and it is unnecessary for me therefore to deal with this question.

With respect to lots Jfl and J¡8:

There is no dispute that the title to these lots, prior to February, 1876, was in Thomas W. Moore. On the 17th day of February, 1876, he and his wife made a deed to Elric L. Moore, and on the 14th day of April, 1881, Thomas W. Moore and his wife and Elric L. Moore and his wife made a deed to Margaret H. Eowan, wife of David Noble Eowan. This deed was acknowledged on the 23d day of April, 1881, and was recorded on the 23d of October, 1888. No conveyance effective to transfer the title out of Margaret H. Eowan is shown until a deed of Margaret H. Eowan and of David Noble Eowan, individually, and as trustee for Margaret H. Eowan, was made to George W. Eowan on the 22d day of April, 1896, acknowledged on the same day and recorded on the 2d of July, 1906. The result of this inspection of the muniments of title is that the paper title at tlie time of the commencement of this suit in equity was vested in George W. Bowan, so far as lots 47 and 48 are concerned.

I do not understand that the defendant the Cliffwood Brick Company disputes this. Its position is that because of the happenings at the trial at law., and the failure to take exceptions or make other legal objection thereat, the finding thereat that the Cliffwood Brick Company had paper title must rest undisturbed. They contend that at were as follows: the trial the respective claims

Cliffwood Bridle Co. Claim.
Thomas W. Moore and wife to Elric L. Moore.. Deed dated February 17th, 1876; acknowledged February 19th, 1876; recorded February 23d, 1876, book 158, page 292.
Elric L. Moore and wife to Frank D. Yarnall. Deed dated February 1st, 1905; acknowledged February 2d, 1905; recorded February 3d, 1905, book 364, page 597.
Elric L. Moore and wife, George W. Moore and wife, John N. Moore and wife, Fred. M. Moore and wife, Henry P. Moore and wife, Thos. W. Moore and wife, to Frank L. Yarnall. Deed dated June 30th, 1905; acknowledged, recorded January 26, 1906, book 375, page 528.
Frank L. Yarnall, Elric L. Moore and wife to Cliffwood Brick Co. Deed dated September 18th, 1906; acknowledged September ISth, 1906; recorded September 20th, 1906, book 386-454.
Rowan’s Claim.
Thos. W. Moore and Fanny N. Moore to Elric L. Moore. Deed dated February 17th, 1876; acknowledged February 19th, 1876; recorded February 23d, 1876, book 158, page 292.
Thos. W. Moore, Fanny N., his wife; Elric L. Moore and Maud S., his wife, to Margaret H. Rowan, wife of D. N. Rowan. Deed dated April 14th, 1881; acknowledged April 23d, 1881; recorded October 23d, 1S88, book 220-456.
Marg. H. Rowan, Elric L. Moore and Maud S., his wife, to Thomas W. Moore. Deed dated January 2d, 1885; acknowledged February 23d, 1885; recorded April 8th, 1885, book 203, páge 50.
Thos. W. Moore to D. N. Rowan, trustee for' Marg. H. Rowan. Deed dated January 3d, 1885; acknowledged March 28th, 1897; recorded July 2d, 1906, book 383, page 395.
Marg. H. Rowan, widow and as wife of D. N. Rowan; D. N. Rowan, individually, and as trustee Marg. H. Rowan, to Geo. W. Rowan. Deed dated April 22d, 1896; acknowledged April 22d, 3896; recorded July 2d, 1906, book 383-397.

And that the mooted question at the trial was whether paper title did not pass to the Cliffwood Brick Company because the deed from Elric L. Moore and wife, and the other Moores and their wives, dated June 30th, 1905, acknowledged the same day, and recorded on the 26th of January, 1906, was so made and recorded before the deed from Thomas W. Moore to D. N. Eowan, trustee for Margaret H. Eowan, was recorded. This latter deed was recorded on the 2d of July, 1906.

It will, of course, be observed that this contention rests upon the theory that Yamall was a Iona fide purchaser for value without notice from the heirs of Thomas W. Moore, who was dead, and that, by recording his deed before the deed made by Thomas W. Moore in his lifetime to David N. Eowan, trustee for Margaret H. Eowan, was recorded, he, Yarnall, obtained the paper title and transferred it by the deed which he subsequently made to the Cliffwood Brick Company.

It is the contention of the Cliffwood Brick Company that in the trial at common law the counsel for Eowan not only did not claim that the deed from Margaret H. Eowan and Elric L. Moore and his wife, dated January 2d, 1885, was void because her husband did not join in it (Gen. Stat. p. 2015 § 14), but, on the contrary, asserted its validity and claimed through it. And it now contends that having thus done, George W. Eowan may not now, on the application for a new trial, take any other position.

Before dealing with this question, I think it proper to state that, with respect to the claim of the Cliffwood Brick Company of paper title under the conveyances above set out, counsel for Eowan contends—first, that the answer filed in the cause does not assert that the deed from the heirs-at-law of Thomas W. Moore, deceased, vested title, but, on the contrary, sets out a different claim; and also, that under the pleadings no issue was raised that Yarnall was a bona fide purchaser for value without notice of said unrecorded deed. He further contends that even if these alleged defects in the pleadings are overlooked, the court would first have to determine whether section 54 of the Conveyancing act (P. L. 1898 p. 690) extends to a purchase from heirs of a grantor whose deed was not recorded at the time of such purchase; and, although there are eases upon each side, he concedes that the better opinion is in favor of the extension of the statute to such a case. He then argues that no attempt was made to show that Yarnall was a bona fide purchaser for value without notice of the unrecorded deed, excepting in so far as it is proven by the admission in evidence of the deed of Yarnall which recited that it was given “in consideration of the sum of one dollar, lawful money of the United States of America, and other good and valuable considerations.”

He next argues that even if it be found that the recital of consideration is sufficient to constitute Yarnall a Iona fide purchaser for value, it cannot, under the circumstances of this case, be said to have been proven that he was such without notice. He points out and argues that Thomas W. Moore was not, nor were any of his children, ever in possession of the property described in the deed. He argues that those under whom he claims, namely, the Rowans, were in possession of the premises; and he contends that even if Yarnall were a bona fide purchaser for value, he had, by reason of the occupancy of the Rowans, notice of their title under the unrecorded deed; and he further points out that YarnalFs grantors were not proven to be the legal successors in title of Thomas W. Moore; the deed does not recite that they conveyed as heirs-at-law, which might, at least, presume intestacy, but they conveyed as individuals; and Elric L. Moore testified that he believed his father, Thomas W. Moore, had left a will, and that it had been admitted to probate in Kings couiity, New York.

At the trial at law the judge there found and charged the jury that the plaintiff, Cliffwcod Brick Company, had a paper title to lots 45, 46, 47 and 48. He apparently found—because he does not leave it to the jury and treats it as if it were settled ■—that Yarnall, the predecessor in holding such paper title, was a bona fide purchaser for value; and he leaves to the jury the, question of whether the Rowans were in such possession or occupancy as to give notice thereby of their unrecorded deed to Yarnall; and upon this issue the jury found against Rowan and in favor of the Cliffwood Brick Company.

There are several very nice questions of law which arise, but, in view' of my. determination of what I should do upon this application, I do not find it necessary or proper to discuss them.

It is irue that the counsel for Eowan did not, at the trial at law', point out to the judge that the deed made by Margaret H. Eowan without her husband joining was void, and that the effect of this was to deprive the Cliffwood Brick Company of any basis for a claim to have paper litle, and to vest paper title unquestionably in George W. Eowan. And it is therefore true that whatever error was made was a common error, joined in by all of .those involved, counsel on both sides and the court.- It is, however, a fact that by the twenty-fourth request to charge, which liad application to the forty-seventh and forty-eighth subdivisions or lots, the court was asked to charge the jury that they must render a verdict in favor of the defendant as to said subdivisions, and it nowr appears clearly to me that such should have been the charge under the proofs then submitted to the court. At the conclusion of the plaintiff’s case, there was a motion to nonsuit, on the ground “that the plaintiff had not shown title to the premises in question.” From the colloquy, it clearly appears that this particular point vras not brought to the judge’s attention; but, here again it is true, as a matter of law at that time, that the plaintiff in the law suit had not shown any paper title with respect to lots 47 and 48, and that it was only by treating the void deed as valid that there wras a semblance of such title.

It is true that counsel for Eowan did not call the court’s attention to the invalidity of the deed made by the married woman in which her husband did not join, and, in fact, himself treated that paper-u'riting as if it were a valid conveyance; but it seems clear to me that by this oversight or error he did not cure, in behalf of the plaintiff in the law suit, nor deprive himself of asserting in his own behalf, the patent, obvious defect in the title claimed and set up by the plaintiff in the law suit. And, when, therefore, he moved for a nonsuit and subsequently requested the judge to charge the jury that, as to these subdivisions, the jury must find in favor of the defendant, his request was a proper one; and although he did not advance to the judge the proper theory, or did not advance what now appears to have been the incontestable facts, he, nevertheless, made proper motions or requests upon each occasion, and the incontestable facts as they now appear should have resulted in their being granted.

Furthermore, I am inclined to think that upon this application for a new trial, in which the defendant in the law suit, the complainant herein, urges that the verdict was against the weight of the evidence, results in a similar finding.

The only evidence on this point consists of the deeds, and, as it now appears from considering such evidence, the paper title unquestionably was in the defendant in the law suit with respect to lots 47 and 48; and the verdict which places title in the plaintiff in the law suit is therefore clearly against the weight of the evidence.

I am of opinion, therefore, that this verdict must be set aside, and that there must be a new trial.

WUh respect to lot 4&:

It will be recalled, with respect to this lot, that the judge at the trial at law withdrew the same from the consideration of the jury and instructed them to find for the defendant in the law suit, the complainant here. The plaintiff in the law suit, the defendant here, argues in his brief that this was an error. It has not applied for a new trial, but argues that the judge, in the suit at law, was in error in instructing the jury in favor of the defendant in the law suit with respect to this lot.

It is conceded by all parties that the title to this land was at one time in Elric L. Moore. It was contended at the trial by the plaintiff in the law suit, the Cliffwood Brick Company, that it had obtained title by a conveyance from Elric L. Moore and wife to Frank L. Yarnall by the deed dated February 1st, 1905, which deed, as will be recalled, has been heretofore dealt with in this opinion. It is also proven that this land is specifically described in the deed from Frank L. Yarnall and Elric L. Moore and wife to the Cliffwood Brick Company, dated September 18th, 1906, acknowledged the same day and recorded on the 20th of September, 1906. Apparently, the law judge determined that this lot was not conveyed by the deed from Elric L. Moore and wife to Frank L. Yarnall, because the description in that deed is too indefinite to be effective to convey any land; and he did not find paper title in the Cliffwood Brick Company, because its deed was after the commencement of this suit. The court, therefore, found that the Cliffwood Brick Company had no title to the part of lot 49 claimed.

The defendant in the law suit did not pretend to have any paper title to 49, but relied, if attacked, upon adverse possession or the right to hold the same as mortgagee in possession. It seems to me that the issue which should have been left to the jury is this: Ignoring entirely the deed from Elric L. Moore and wife to Frank L. Yarnall, dated February 1st, 1905 (the one containing the inefficient description), it would appear from the other proofs that Elric L. Moore, at the time of the commencement of this suit, had paper title to this portion of 49; and that he and his wife were parties defendant, and that by a subsequent conveyance (subsequent, that is, to the date of the filing of the bill) they conveyed all their rights to the Cliffwood Brick Company. The result of this chain of title it seems to me to be that at the time that the jury was considering the matter they should find that Elric L. Moore or the Cliffwood Brick Company (and it is immaterial which) had the paper title, and that they should prevail unless the defendant Eowan in the law suit should make out, as against them, title by adverse possession or a right to hold the same as mortgagee in possession. Upon a retrial, of course, this matter can be correctly shaped and put to the jury.

The defendant the Cliffwood Brick Company has suggested in its brief that if the court should be satisfied with the finding of the common law court with respect to certain of the questions affecting some of the subdivisions, and dissatisfied as to others (that is, should find reason for setting the verdict aside and ordering a new trial), it might, with propriety, define only certain portions to be retried. I do not know of any such practice, and, in any event, I do not think it proper in this case. Under the act in question (Gen. Stat. p. 8487 § 5) : “Upon application of either party an issue at law shall be directed to try the validity of such claim,” and this court is then given power, if it finds reasons for doing so,, to grant a new trial of the issue at law. I have found reasons for granting a new trial, and the case is therefore before me upon the bill, answer, replication, certain proofs which show the complainant in. peaceable possession sufficient to justify tire suit and an application for a trial of the validity of the claim of the defendant, and I know of no right that I have other than to grant such application and direct the issue at law, which must certainly be as broad as the application, and that is to put to the test of the suit at law the validity of the entire claim of the defendant.

Furthermore, and even assuming that this court might do otherwise, if it were so inclined, I am not so inclined, and my reasons, briefly, are these: The transcript of the minutes of the common law trial cover more than four hundred and fifty pages, and almost the whole of it is taken up with testimony about the possession of this property. I have found it almost impossible to determine from a reading of the testimony upon what specific portion of the different lots, or upon what lots certain of the acts of possession took place. If I were now to attempt to do what the defendant here desires me to do, and to take the finding of the jury in its favor upon the question of adverse possession, I might be committing a very grave injustice, because if the case is submitted to the .jury in such a way that the different titles are separated, it may well be that acts of possession of the Eowans on the property may be found to have been committed upon that portion to which it is now found that they have paper title; or it may be that it would be found that such acts of possession were upon other por lions of the tract to which they did not have paper title; and similarly with respect to the acts of those whose conduct is said to have interrupted or broken the possession of the Eowans, such acts may have been upon land the title to which should have been found to be by record in the Eowans or in the defendant; and the effect of these findings as to where the acts of possession were committed has a very direct bearing upon the proper solution of the issues.

I shall, therefore, grant a new trial, the order for which may be settled upon notice.


author: Leaking, V. C.

text:
    Elizabeth Mealey v. Edward F. Howard.
    [Decided December 31st, 1909.]
    The rule declared by the court of errors and appeals in Lutjen y. Lutjen, 6Jf N. J. Bq. (19 Dick.) 718, as to laches, followed, it being apparent that the complainant’s delay of over five years, before filing his bill, may have caused a loss of evidence to the injury of the defendant.
    Final hearing on bill to set aside an assignment of an agreement for purchase of real estate.

      Mr. George J. Bergen, for the complainant.

      Messrs. Wescott & Wescott, for the defendant.
   Leaking, V. C.

Our court of errors and appeals in Lutjen v. Lutjen, 64 N. J. Eq. (19 Dick.) 773, has made it clear that this court should not enforce a claim which has not been diligently prosecuted when it is apparent that the delay of complainant may have caused a loss of evidence to the injury of defendant. In the present case, complainant allowed over five years to transpire before filing the present bill, after defendant had absolutely refused to recognize the transaction as a loan. The present difficulty in ascertaining the truth arises from this long delay. The memory of complainant and her husband is wholly unreliable, touching many important features of the transactions which must have occurred. The bill asserts that prior to the execution of the assignment complainant’s husband borrowed from defendant $750, and that complainant borrowed at that time $25, and that the assignment was executed to secure those loans. The direct testimony of complainant and her husband was substantially to the same effect. It soon became manifest, however, that neither complainant nor her husband knew what money they had received or when or under what circumstances they had received it. They were admittedly in ignorance of the $450 payment made by defendant to another person on their account in September, and yet that was the largest single amount they had received. That payment and the $50 payments of September 24th and October 6th, respectively, were admittedly made subsequent to the execution of the assignment in question, yet the bill charges that all payments were made at and before the execution of the assignment. It is entirely manifest that complainant and her husband had entirely forgotten these details of the transaction, and simply entertained a general idea that $750 had been received by them. When the husband of complainant was asked to state how he made up the $750 which he claimed had been paid, he specified six several payments aggregating that amount, and did not include the $450 item. The inability of complainant and. her husband to remember these facts, which would be of prime importance in. the event of an accounting being decreed pursuant to the prayer of the bill, discloses the difficulties which naturally and almost inevitably arise from delay in the assertion of claims of this nature. The injurious effects of delay is not alone manifest in the difficulties which would arise in an accounting. A court of equity is now asked to set aside a written instrument which by its terms is an absolute sale, and to declare it to have had a purpose contrary to its expressed terms, and to base that decree upon the testimony of witnesses whose recollections of almost all other features of the transactions are manifestly unreliable. It may be that complainant and her husband could forget all the details which they have manifestly forgotten, and yet remember well and accurately the general fact that the transaction was a loan and not a sale. I can see how that might be possible. But it is nevertheless manifest that the long delay is largely the cause of the present difficulty in the ascertainment of this important fact. Had the bill been filed promptly, I cannot believe that any court would have found it difficult to ascertain the exact truth touching this central issue. There are circumstances which are consistent with the claim of complainant that the written assignment of August 19th, 1902, was intended as a security for a loan or proposed loan, and not as an absolute sale. The facts that no specific consideration is named in the assignment and that no obligation was given for the balance of the money to be paid are consistent with complainant’s claim that the assignment was to secure a loan for an amount which had not at that time been definitely agreed upon. These features also measurably indicate that the transaction was not an absolute sale for an agreed amount. But these features are in no sense conclusive. In transactions of this nature between parties who share confidence in each other, the borrower may trust the lender with an instrument which defines the transaction as a sale when in fact it is only a loan, or he may trust the purchaser foy the balance of an agreed purchase price. The testimony of defendant is to the latter effect. He say's that the contract which complainant held was sold to him at the agreed price of $1,000, and that he made two payments on account, aggregating $400, before the assignment was made to him, and declined to make further advance payments until the assignment was executed and a search of the records made to show that he would receive a clear title, and that when the search was returned he paid the $450 to complainant’s use, and subsequently paid the remaining balance. Whether two $200 payments were made on one day, one to complainant and one to her husband, is also a subject of dispute. The truth as to that will probably never be known. The great lapse of time renders the certain ascertainment of that fact impossible. It may also be appropriately observed that complainant’s present claim has undoubtedly been asserted by reason of the increase in value of the premises in question; and it may also be reasonably assumed that had the premises depreciated in value complainant would not have sought to recompense defendant for his expenditures.

My' conclusion is that complainant has not sustained the burden of proof with that clearness or certainly which entitles a court of equity to award the relief here sought; and that the long delay' of complainant in the assertion of her claim has rendered it impossible to accurately ascertain at this time the facts, and must, in consequence, be deemed operative to render it inequitable to deny to defendant, in view of such uncertainty at this time, the benefits of the purchase which he claims to have made.


author: Leaming, Y. C.

text:
    Mary K. Hammel v. Henry R. Barrett.
    [Heard June 27th, 1910.
    Determined July 1st, 1910.]
    1. In construing a will the court may entertain extrinsic evidence o£ the circumstances, situation and surroundings of the testator at the time the will was executed, but not statements made by him touching his meaning and purpose.
    2. Where the testator’s expressed desire is that his sister shall be' looked after by her brother, and that his brother should see that she has a home and is properly provided for and has a decent burial, the will casts upon the brother the duty to see that the sister has these things, it being clear that the residuary estate is devised to the brother in such manner that the duties thus imposed on him are made a charge upon the proceeds received by him.
    3. The duty thus imposed upon the brother is discharged in accordance with the testator’s wish so long as the sister has a home and is properly provided for and is given a decent burial, but the brother is not directed by the testator to provide these things at his own expense, irrespective of the sister’s ability to provide them from her own exertions and estate.
    4. It appearing from the evidence that the sister is not at this time enjoying a suitable home, or surrounded by reasonable comforts, the brother is not performing the duty imposed upon him by the will until or unless he sees that she is surrounded by conditions suitable to her age and infirmities.
    5. Such duty can be performed by the brother either by supplying to her such additional money as may be necessary to enable her to live with comfort and safety, or by supplying her- with adequate security against future want and thus enable her to spend her principal with safety to herself.

      6. As the will creates such a charge against the brother in favor of the sister, it is within the power of this court to require security in behalf of the sister for the performance of the duty thus imposed.
    On bill to charge real estate with the payment of money for the support of complainant.

      Messrs. Garrow & Kraft, for the complainant.

      Mr. William Harris, for the defendant.
   Leaming, Y. C.

The law of this state appears to be well settled, to the effect that in construing a will this court may entertain extrinsic evidence of the circumstances, situation and surroundings of the testator at the time the will was executed, to the end that the court may be placed as nearly as possible in the position of testator and thus better comprehend the meaning and application of the language used by him; but statements made by the testator touching his meaning and purpose cannot be entertained. That portion of the testimony will, therefore, be excluded from present consideration.

Testator does not specifically direct that any money, except $100, shall be paid to or for the use of his sister. His expressed desire is that she shall be looked after by her brother, and that her brother shall see that she has a home and is properly provided for and has a decent burial. It is entirely plain that the will easts upon the brother the duty to see that the sister has these things, and it is also clear that the residuary estate of testator is devised to the brother in such manner that the duties thus imposed upon him are made a charge upon the property received by him. The question for determination, therefore, is whether the duty thus imposed upon the brother is discharged in accordance with the wish of testator so long as the sister has a home and is properly provided for and is given a decent burial, or is the brother directed by testator to provide these things at his own expense, irrespective of the ability of the sister to provide them from her own exertions and estate. It seems to me entirely clear that the language used by testator is wholly inadequate to disclose the purpose last suggested. Had testator desired to charge his brother with the primary duty to support his sister at his own expense and to thus relieve his sister from tire burden of contributing to her own support and from her own estate or from her own exertion, the language which was adopted in the will could not have been chosen. The evidence is ample to disclose that testator well knew the resources of his sister. He necessarily knew that she might or might not need assistance. Should the former condition arise, it was his purpose that his brother should supply whatever assistance was necessary. The circumstances and surroundings existing at the time the will was made make this reasonably apparent, and the language of the will clearly imports it/''

It is also apparent from the evidence that the sister is not at this time enjoying a suitable home or surrounded by reasonable .comforts. It may be that ten years ago, when the will was made, she could have lived alone with reasonable safety and comfort in one room, and in that room attended to her own cooking but it is certain that her present age and condition of health render such a life upon her part at this time improper. The reason she lives in that manner is manifest. Her income is insufficient to enable her to live better, and she appropriately fears to spend any part of the money from which she receives an income. These conditions should no longer exist. Her brother is not performing the duty imposed upon him by the will unless or until he sees that she is surrounded by conditions suitable to her age and infirmities. That duty can be performed by him by either sujjptying to her such additional money as may be necessary to enable her to live with comfort and safety, or by supplying her with adequate security against future want and thus enable her to spend her principal for her support with entire safety to herself. As the will creates such a charge against the brother in favor of his sister, it is clearly within the power of this court to require security in behalf of the sister for the performance of the duty thus imposed.

I will advise a decree to the effect above stated: but before a decree is made, unless the parties can agree upon an allowance to be made by the brother to the sister, a further hearing may be had on Monday, July 11th, to determine the amount and character of the security to be given by the brother to secure to the sister adequate support at any time she is unable to support herself.


author: Leaking, Y. C.

text:
    Amelia R. Sparks v. Charles S. Ross et al.
    [Submitted May 9th, 1911.
    Decided July 5th, 1911.]
    1. In an action to quiet title in which the verdict in favor of the defendant (plaintiff in the issue at law) depended upon the sufficiency of the evidence to overcome the presumption of validity accompanying a decedent’s third marriage—Held, that a verdict for the plaintiff would be set aside as against the weight of the evidence.
    2. A presumption of divorce from a prior marriage arises from a subsequent marriage.
    On bill, &c., to quiet title.

      Messrs. French & Richards, for the complainant.

      Mr. Timothy J. Middleton and Mr. John J. Grmdall, for the defendants.
   Leaking, Y. C.

A fourth triaL o£ an issue at law in this ease having resulted in a verdict for the plaintiff in the issue, a motion is now made in this court to set aside that verdict.

Since a former trial, a review of which is reported in 75 N. J. Eq. (5 Buch.) 550, two new elements have been added in defence of the claim asserted by the plaintiffs in the issue at law. Evidence has been introduced showing that although Edmund B. Boss resided in this state continuously from the date of his marriage to Maria Moose to the date of his marriage to Mary Cavanaugh, a search of the records of the court of chancery of this state covering that period discloses no decree of divorce from the Boss-Moose marriage. Evidence has also been introduced showing that on June 5th, 1864, one year and a half after the Boss-Moose marriage, Boss married one Anna Todd, and that she was alive at the time of the Boss-Cavanaugh marriage, and that a search of the records of the court of chancery during the period stated discloses no decree of divorce from the Boss-Todd marriage.

The question now presented is whether the presumption of validity accompanying tire last marriage has been overcome by the evidence which has been introduced to overthrow that presumption.

There was, undoubtedly, a valid marriage between Boss and Maria Moose December 4th, 1862, provided both were then free from disability. There -was, undoubtedly, a valid marriage between Boss and Anna Todd June 5th, 1864, provided both were then free from disability. There was, undoubtedly, a valid marriage between Eoss and Mary Cavanaugh October 24th, 1873, provided both were then free from disability. As both the Moose woman and the Todd woman were alive at the date of the third marriage-—the Moose woman being still alive—it necessarily follows that the third marriage can be sustained only upon the assumption that these prior marriages were either void for want of ability of the parties to contract, or, if valid, were dissolved by a decree of divorce prior to the date of the third marriage.

Touching the assumption that the Eoss-Moose marriage was void for want of capacity of the parties, it was pointed out at the review of the former trial above referred to that although the evidence was ample that Maria Moose was able to contract marriage with Eoss, no testimony of the capacity of Eoss was present, except the statement of his sister to the effect that she did not know of his having married prior to that marriage, and in consequence it was held that the presumption of innocence accompanying the last marriage of Eoss, and the fact that Maria made no claim for support and remarried without a divorce, might be sufficient to justify a conclusion of incapacity upon the part of Boss at the date of the Boss-Moose marriage. At the last trial, however, in addition to the'former testimony referred to, another sister of Boss testified with positiveness that he had not been married prior to his marriage to Maria, and no testimony was offered to the contrary. The fact that Boss had married Anna Todd prior to the time Maria remarried was also established. In view of this added testimony, it will be observed that the evidence of the capacity of Boss to marry Maria Moose was materially strengthened, and at the same time the force of the presumption of innocence arising from the last marriage of Boss was materially weakened. When the third marriage of Boss is considered by itself the presumption of innocence and legitimacy necessarily follow the acts of marriage, cohabitation and raising children; but such presumptive innocence cannot be logically used with force to establish the fact that two prior marriages of the same man, each followed by cohabitation and children, were void by reason of his incapacity to marry. The presumption of dissolution of the prior marriages may remain, but the presumption of innocence which should accompany the last marriage is almost, if not wholly, lost by the assumed unlawful matrimonial prior conduct of the same party. But should the presumption of validity of the third marriage, when considered in connection with the several circumstances of the case, be thought sufficient to justify the assumption of a disability on the part of Boss at the time of his marriage to Maria Moose and thus render that marriage void, it follows, in view of the evidence now present touching the Boss-Todd marriage, that to justify the verdict upon the theory of incapacity of Boss the further assumption must also be indulged that the presumed disability, or some new disability, existed at the time of the Boss-Todd marriage, and in turn rendered that marriage void; and that all disabilities were removed prior to the date of the third marriage.- This series of complex and remote possibilities cannot, in my judgment, be properly ascertained as facts from the evidence here presented. I am convinced that the verdict cannot be sustained upon any theory of incapacity upon the part of Boss or Maria Moose.

The only remaining theory on which the verdict can be sustained is that the Boss-Moose marriage, if valid, was dissolved by divorce prior to the Ross-Cavanaugh marriage, and if valid and dissolved by divorce prior to the Ross-Todd marriage, that that marriage, if valid, was also dissolved by divorce prior to the Ross-Cavanaugh marriage. The evidence now discloses that no divorce from either marriage has been decreed in this state. Evidence has also been introduced to the effect that Ross resided in this state continuously from a time prior to the Ross-Moose marriage until after his marriage to Cavanaugh. In the absence of some evidence indicating that it is not true that Ross resided in this state during the period named or that he may have acquired a residence in some other state and there procured a divorce, I am unable to find any justification for a verdict based upon the assumption of a divorce. While a presumption of divorce from a prior marriage arises from a subsequent marriage, that presumption is necessarily dispelled when it affirmatively appears that no divorce has, in fact, been decreed in the only jurisdiction in which a divorce could properly be granted.

Another circumstance, not heretofore referred to in the several reports of this troublesome litigation, should, I think, be here noted. The claim of the plaintiffs in the issue at law is under the provisions of the will of Samuel Eoss, the father of Edmund B. Ross. The provisions of that will touching the property here in question direct the payment of the income of the property to Edmund B. Ross during his lifetime, and direct that at his death a specified amount shall be paid to the son of Edmund B. Ross, “son of his wife, formerly Maria Moose, if then living,” and direct that the residue shall be “equally divided among any children that he (Edmund B. Eoss) may hereafter have borne to him in lawful wedlock.” At the time this will was executed, July 15th, 1871, Edmund B. Ross and his wife, formerly Maria Moose, had separated and Edmund and Anna Todd had gone through the form of marriage, and has then living two children as the issue of that alliance. These circumstances are not without significance, in that by the terms of the will Maria is defined as Edmund’s wife, and provision is made for the issue of that marriage, and the issue of Edmund and Anna then living are excluded, and future issue of Edmund are provided for only in case such issue shall be legitimate.

In my judgment, the verdict is so clearly against tbe weight of the evidence that it cannot be properly used to control the final decree of this court. I am obliged to advise an order setting aside the verdict.