text:
    Minna Schwalber v. Regina Ehman and Christopher Ehman, her husband.
    [Filed August 2d, 1901.]
    1. A gift in fraud of a pursuing creditor is good as between the donor and the donee.
    2. Such a fraudulent gift is good against the administrator of a deceased donor, except to the extent necessary to pay the debts of the decedent.

      3. A relation par amo-ur, carries no presumption of the exertion of an undue influence by the mistress. It does call for suspicious scrutiny of the conduct of the parties, in ascertaining whether the challenged act of the man was induced to be done by an undue interference with his free action.
    4. The court of chancery has no jurisdiction to pass upon a legal demand for unliquidated damages.
    On bill, answer'and proofs.
    The complainant is the widow of Charles J. Sehwalber, deceased. 'She files her bill of complaint, as his administratrix, against the defendant Eegina Ehman, alleging that the latter was the paramour of the decedent in his lifetime and at the time of his death; that Sehwalber advanced the purchase-money of a house at Eiverside, New Jersey, for one John Brand, and because of the undue influence of Eegina, and to conceal his property from his wife, who was proceeding for alimony, he took a mortgage for $550 on the house and lot of Brand, in the name of Eegina as mortgagee, but himself retained the custody and possession of it till his death.
    The complainant insists that the mortgage having been made to secure moneys .advanced by the decedent,-the making of it to Eegina created a resulting trust in favor of the decedent, and Eegina held the same only as his agent and trustee. The complainant further charges that, after the decedent’s death, Eegina took possession of the bond and mortgage, and by surrendering them obtained a conveyance of the mortgaged premises to be made to herself; that, by undue influence, Eegina induced the decedent to take a mortgage in her name for $135 for moneys loaned by him to one Joseph A^oghte; that the decedent held this bond and mortgage up to and at the time of his death, but after that Eegina took possession of it and has since received the interest on it. The complainant also charges that Eegina, who was living with the decedent, at Eiverside, at the time of his death, removed and appropriated to her own use a large quantity of decedent’s house furniture and other personal property, a detailed inventory of which is set forth in the bill, to the value of at least $2,000. Eegina has since married one Christopher Elnnan, who is made a defendant for that reason. The complainant charges that, after the decedent’s death, Regina offered for probate, in Philadelphia, a paper purporting to be his will, which the register refused to admit to probate, because it was procured by the undue influence and fraud of Regina, and that, on appeal to the court of common pleas, the register’s decree was affirmed. The prayer of the bill is for discovery, by answer to specific interrogatories set forth in the.bill; for a decree for a conveyance to complainant of the house and lot, title to which was obtained by Regina by surrender of the Brand mortgage, or that the property may be charged with the $550 and interest in favor of the complainant, and be sold to satisfy that sum; that Regina may assign the Voghte mortgage to the complainant, and pay such of the interest on that mortgage as she lias collected, and may account for moneys, goods and personal property taken by her from decedent’s premises since his death, and for other relief.
    The defendant denies that she was Schwalber’s paramour, and that she exercised any undue influence over him. She admits that she tendered a paper purporting to be his last will for probate, and says that it was, in fact, his last will. She admits it was refused probate by the register, and that, on appeal, his decision was affirmed, but she says the affirming decree was rendered by her consent and upon an agreement between the complainant and herself that she should be paid $3,000 out of Sehwalber’s estate, which she avers was a full settlement of all claims of Schwalber’s estate against her. She denies the complainant’s charges as to the Brand mortgage, and avers that the money secured by that mortgage was her own money—a portion of her earnings—and that the bond and mortgage were hers, and always remained in her custody as her own, and not as trustee for Schwalber. She admits that it was surrendered in consideration of the conveyance of the mortgaged premises to herself, but insists that the mortgage was held by her, and the house and lot conveyed to her, as her sole propertjf, owned by her in her own right, and not as trustee for Schwalber. She denies that she, by undue influence, obtained Schwalber to take in her name the Voghte mortgage for $135 for moneys loaned by him, and that Schwalber held it up to the time.of his death, and that she took it after Schwalber’s death; on the contrary, she says those mortgage-moneys were her own, the mortgage was rightfully made to-her to secure them, and she held and possessed it as her own property from the time when it was given, while Schwalber was alive, and that she has since collected it. She admits that Schwalber’» house, at the time of his death, was well supplied with household goods, but she denies that all -of those goods belonged to' Schwalber, and alleges that a large part of them belonged to herself. She admits that during the three months after Schwalber’s death, while the will contest was pending, she was in possession, of the house, but she denies that she removed any of Schwalber’» goods, and also that she took any of his money or securities.

      Mr. Charles E. Hendrickson, for the complainant.

      Messrs. Gilbert & Atkinson, for the defendants.
   Grey, Y. C.

The complainant is the administratrix of Charles Schwalber, deceased. She files her bill, as administratrix, against the defendant for relief as to three separate incidents:

First. That the Brand mortgage may be reinstated in favor of the complainant, or that the defendant may be decreed to convey to complainant the house and lot obtained by its surrender.

Second. That the defendant may assign the Yoghte mortgage to the complainant and pay the interest she has collected thereon.

Third. That she may account for personal property, which the complainant insists she removed from Sehwalber’s house after his death.

There is no proof that, in any sufficient way, supports the charge that the Yoghte mortgage-money belonged to the decedent, Schwalber. The complainant’s counsel himself conceded his failure on this branch of the ease, and on the argument frankly abandoned the claim to the Yoghte mortgage.

The complainant’s attack upon the defendant’s holding of the Brand mortgage, and the lot which she purchased by its use, is pressed with vigor upon two grounds—first, that Schwalber put his money into the Brand mortgage in the name of the defendant as mortgagee, in order to prevent his wife from collecting her alimony from him; second, that Schwalber was living par amour with the defendant, who, by the exertion of an undue influence, induced him to put $550 of his own money in her name as mortgagee; that he did not give her the mortgage in his lifetime, but that after his death she took it from among his papers..

The first ground of attack, alleging that Schwalber.had put his money in the mortgage in the defendant’s name as mortgagee, in order to prevent Mrs. Schwalber from collecting her alimony, is not unsustained by the proofs, but, as matter of law, must be held to be ineffectual. It is perfectly well settled that a fraudulent transfer, intended to hinder the payment of debts, is binding upon the debtor who, in fraud of his creditors, makes the transfer. Marlatt v. Warwick and Smith, 4. C. E. Gr. 439 (Court of Appeals). The complainant files her bill as administratrix of Schwalber, setting up his supposed fraud. As an administrator takes only the property whereof the decedent died possessed, his fraudulent transfer in his lifetime is good as against his administrator, unless it be alleged and proven that there is not enough esiaio of the decedent to pay his debts. In that case an administrator, asserting the rights of the decedent’s creditors, may, to the extent necessary to pay them, recover the fraudulently disposed of assets. There can be no such recovery for the benefit of distributees, who are mere volunteers. Neither the bill nor the evidence in this case exhibits the necessary conditions for. such a recovery.

The second ground, that Schwalber was induced to put the Brand mortgage in defendant’s name by undue influence, is based upon the fact that Schwalber lived par amour with the defendant. That the defendant did so live with Schwalber is fully proven. The complainant assumes that this fact is presumptive evidence of the exertion by the defendant of an undue influence over him in the obtaining of the Brand mortgage. But this is not the law. Such an immoral relation, however reprehensible it may be, carries no presumption of the exertion of 'an undue influence overcoming the will of the decedent. It does call for and justify a close and suspicious scrutiny of the acts of the parties in mailing the inquiry whether the challenged act was done by the free choice of the decedent. Arnault v. Arnault, 7 Dick. Ch. Rep. 805, and the cases there cited. No proof is directed to the showing of any influence, undue or otherwise, exerted for the purpose of inducing Schwalber to put his money in the Brand mortgage in the name of the defendant. The indications of the evidence convey the impression that Schwalber was a man not easily turned from his own individual .purposes. The testimony directed to this phase of the case was of the most general character, and does not establish the complainant’s claim, even if it be assumed that the money loaned in the Brand mortgage belonged, in fact, to Schwalber.

All the lines of attack upon the bona fides of the defendant’s holding and use of the Brand mortgage are dependent upon the basic fact, which the complainant asserts and undertakes to prove, namely, that the money put into that mortgage belonged, in truth, to Schwalber.

The proofs show that Schwalber, for some years before the mortgage was made, had been separated from his wife; that she was suing him for alimony, and that he lived par amour with the defendant. They also show that Schwalber was a man of considerable force; that he was treasurer of several associations, and, judging from the sidelights cast by the statements of the witnesses, was in'no sense an easily-controlled weakling, however disreputable his conduct may have been. For a long time before the making of the Brand mortgage the defendant had been employed by Schwalber as a servant at $5 per week. The greater part of her wages was left in Schwalber’s. hands. The first step towards the creation of the mortgage was the application of Mrs. Brand, the wife of the mortgagor, to the defendant, requesting her to loan the amount of the mortgage. Shortly after this application the loan was made, the defendant’s name appearing as mortgagee. Schwalber must have been consulted by the defendant, for he told the scrivener that he had advised the defendant to help Brand. Schwalber also directed the business attending upon the execution of the mortgage and the delivery of the money to the mortgagor. He instructed the scrivener how to draw the mortgage which named the defendant as mortgagee, telling him that the defendant had some money in bank, and that he (Schwalber) had requested her to help Brand, the mortgagor. The latter testifies that he paid the interest on the mortgage, sometimes to Schwalber and sometimes to the defendant. Mrs. Brand testifies that Schwalber told her that the mortgage-money belonged to the defendant. Schwalber is shown to have made several other statements, in the nature of admissions, to the same effect. The mortgage itself was, by his express direction, made in -the defendant’s name as mortgagee. The defendant swears she loaned the money to Brand, and that it was her own money. Taking all the proofs into consideration, though they are somewhat contradictory, the weight of the evidence leads to the belief that the mortgage-money loaned to Brand did, in fact, belong to the defendant. At the time of the making of the loan, the cash was delivered to the mortgagor by Schwalber, but it was so delivered by him for the defendant. This view necessarily refutes the claim that the Brand mortgage transaction operated to create a resulting trust in favor of Schwalber in that mortgage. There cannot have been either a taking of the mortgage in fraud of Schwalber’s creditors or undue influence in obtaining it, or a wrongful seizure of it after Schwalber’s death, when the mortgage-money is found to have belonged to the mortgagee named in it, who is accused of these various misdoings in obtaining it. The evidence offered in support of these charges is largely inferential, and does not carry enough weight to overcome the more direct proof offered in support of the bona fide ownership of the mortgage by the defendant.

The remaining question is the claim of the complainant for" an accounting, based upon the allegation that, after Schwalber’s death, the defendant removed a large quantity of household goods and other personal property and appropriated it to her own use. After issue joined by way of answer, denying this charge, and after the cause had come to hearing, but before the opening of the testimony, the defendant asked leave to amerad her answer, so that she might have the benefit of a demurrer to this claim. The request was refused, for the reason that the cau^e being then about to be heard the vice-chancellor was of opinion that the complainant was entitled to a hearing on the issues joined on the matters of fact, so that if a case which could be entertained in this court were disclosed, she might, by amendment of her bill, if need be, have an opportunity to show her right to a decree. After the testimony was in the defendant’s counsel, as part of his argument in the cause, again insisted that conceding, for the argument’s sake, that the goods, &c., were wrongfully taken by the defendant, still there is no remedy in this court, because it has no jurisdiction to decree an accounting for the unliquidated damages recoverable for such a taking of personal property.

The whole claim touching the alleged taking of household goods and other personal property sounds in damages, whether considered as a tort or as a suit on contract to recover value. There is no pretence that there was any contract or agreement fixing the price or value of the things taken. The recovery must be upon the same basis as in an action of trover and con-' version, in damages for such sum as will compensate the complainant for the loss of her property. Such an action could undoubtedly have been brought for such an injury as the complainant exhibits in her bill. This is necessarily an unliquidated, sum. It has been declared by the court of appeals that this court has no jurisdiction to pass upon a purely legal demand for unliquidated damages. Alpaugh v. Wood, 18 Stew. Eq. 157. In that case the question of jurisdiction was first raised in the court of appeals, after decree in this court, upon a matter of accounting, the appellants insisting that they had a right to a jury trial to settle the controversy. The court of appeals declared that “in this contention the appellants are clearly in the right.” The defendant in this cause may therefore rightfully challenge the power of this court to take further cognizance of that phase of this case which asks an accounting for the alleged wrongful taking of the decedent’s household goods, &c., by the defendant. The remedy for such wrongs lies in the law courts.

There should be a decree dismissing the complainant’s bill, with costs.


source: Caselaw Access Project

author: Grey, V. C.

license: Public Domain

text:
    The Ocean City Association and Frank B. Schneider v. Harry Headley.
    [Filed September 26th, 1901.]
    1. Where the evidence shows that portions of a tract of land have been sold in town lots under a general scheme of improvement imposing restrictions as to the location of buildings at certain named-distances from the front and side lines of the lots, and the original grantor permits numerous open, public and continuous violations of these restrictions to be perpetrated by various lotowners, over a period of more than twelve years, without bringing suit to correct or prevent them, equity will not, at the instance of the original grantor, specifically enforce those restrictions.
    2. A remote grantee of the original owner, whose lot is within the plan, who stands by and sees the owner of the next lot locate and partially build his house in violation of the restrictions, cannot maintain against his neighbor a bill in equity for specific enforcement of the restrictions, requiring his neighbor to take down his house.
    3. The bill of complaint of such a grantee of the original owner will not be entertained when it is shown that he has himself, on his own lot, part of the tract within the general plan, violated the very restriction which, by his bill, he seeks to enforce against his neighbor’s lot, also part of that tract.
    On bill, answer and proofs.
    The complainants in this bill are the Ocean Oity Association, a corporation of this state, and Frank B. Schneider. The Ocean City Association was the owner of a considerable tract of beach land, now Ocean City, which it conveyed to various persons, in accordance with a plan of lots on hie in Cape May county clerk’s office. The deeds of conveyance of its various lots were made subject to certain conditions and restrictions, expressed in the deeds and sot out in the bill of complaint, among which were the following:
    “That no building of any description whatever shall at any time be erected within ten feet of the front line of the said avenue, nor within four feet of the side line of said lots, excepting where a party may own two or more continuous lots, then a building may be erected on any part of the lot or lots the owner thereof may desire, without regard to the intervening line or lines, provided the same is not built within four feet of the outside lines of said lot, nor within ten feet of the front line thereof.”
    The other restrictions contained in the association’s deeds are' set forth at length in the.bill of complaint. They indicate a general plan of improvement ánd development of the tract affected by them, and conclude with these words:
    “And also under and subject to the express conditions, restrictions and regulations which may hereafter from time to time be made by the said party of the first part hereto, for carrying out and enforcing the above conditions and restrictions and the rules and regulations necessary to insure the original intention and purpose of the party of the first part in securing the whole island as a Christian seaside resort.”
    The association, on November 6th, 1880, conveyed to one Thomas Shaw lot No. 443, in section A, on the plan of lots of the association. The deed contained the restrictions inserted by the association in all its deeds, among others those above quoted. By intermediate conveyances lot No. 443 came to be owned by the complainant Frank B. Schneider, by deed dated November 18th, 1895.
    On January 24th, 1881, the association conveyed to William B. Wood the adjoining lot, No. 441, in section A, on the plan of lots. The deed to Wood contained the same conditions and restrictions as those contained in the deed to Shaw. Afterwards, by intermediate conveyances, lot No. 441 was, on the 15th.day of May, 1896, conveyed to Harry Headley, the defendant in this cause. Lots Nos. 441 and 443, in section A, adjoin each other, and are both situated on the northwesterly side of Asbury avenue, between Eighth and Ninth streets; each is thirty feet front on Asbury avenue by one hundred feet deep.
    The complainant Schneider has erected on lot No. 443 a dwelling-house, which, he alleges in his bill -of complaint, was not located within four feet of either of the side lines of the adjoining lot, which dwelling he occupies and uses as' his residence. The complainants allege and base their right to relief in this cause upon their allegation that the Ocean City Association formerly owned all the land in the vicinity of the lots in question, and laid it out and developed it as a seaside resort, known •as Ocean City, and made all its sales of lots under the same restrictions set forth in its bill, for the object and purpose of securing to purchasers of lots open spaces between this building, in order to give it abundant light and air; that it has made all its sales of lots; that the erection, completion and maintenance of Headley’s building against the side lines of Schneider’s lot will be a violation of the conditions and restrictions above named, and will be very injurious to Schneider by diminishing the value of his propert}7, and depriving him of the conveniences he is entitled to have under the restrictions set forth in both his own and Headley’s antecedent conveyances, and will greatly prejudice the association in accomplishing the purposes for which the restrictions were inserted in the deeds. The prayer of the bill is that Headley may be enjoined from the erection of his building within four feet of the side line of Schneider’s lot, according to the restrictions above quoted.
    An order was allowed directing the showing of cause why a preliminary injunction should not be issued. On the coming in of the order, an answer was filed by the defendant, Headley, with accompanying affidavits, and thereupon the order to show cause for a preliminary injunction was abandoned.
    By his answer the defendant, Headley, declares that he has no knowledge of the chain of title whereby Schneider received conveyance of his lot, No. 443. He admits that the restrictions set forth in the bill are incorporated in the complainant Schneider’s deed; that he (Headley) is the owner of lot No. 441; that his title thereto is derived through tire Ocean City Association; that itg deed for that lot contains a restriction as set forth in the bill, but he insists that the covenant of the association with Wood (grantee of lot 441, now owned by defendant) was entered into after its sale to Shaw of lot 443 (now owned by Schneider), and that there was no covenant whatever between Wood and Shaw. He further answers that the complainant Schneider, in erecting his own building, has so located it on lot 443 that the line of it is but three feet ten and one-half inches from his southwest property line; that the front of complainant’s building is composed of two bulk windows, built solidity from the ground to the second floor, and they are located within eight feet four inches of the front street line; that at the top of the bullí windows is a balcony, or veranda, which forms the roof thereof, and extends outwardly to within five feet one inch of the 'front property line. The defendant further alleges that the complainant Schneider’s building, on the northeasterly side, adjoining the defendant’s lots, has two porches, the first of which is nine feet two inches long, built into the complainant Schneider’s house, and forming part thereof, and covered with a tin roof, which projects over the defendant’s property line for a distance of six and three-quarters inches. The complainant’s other porch is five and one-half feet long, with a tin roof, which actually extends over the defendant’s line seven and a qriarter inches on the side adjoining defendant’s property; that the porch last named is enclosed with tight siding, and is within two or three inches of the defendant’s property line; that this last structure is located directly opposite the place where defendant had originally planned to place a window in his building, but the porch of the complainant being tightly closed, there was no means of securing light for a window, and that the rain running down from the said complainant’s porch would pour into the defendant’s window, and for these reasons the defendant was compelled to change the plan of his house; that the remaining portion of the northwesterly side of the complainant Schneider’s house is within three feet and eleven inches of the property line between the complainant’s and the defendant’s lots.
    The defendant further asserts in his answer that, after the trenches for the foundation of his building had been dug, but before the foundation had been laid, the complainant Schneider declared to one Baker his purpose to allow the defendant to build his wall part of the way up, and that he was then going to apply for an injunction and compel the defendant to tear down his wall. The,defendant denies that his building adjoins the side line of the complainant’s lot, and asserts that it is eleven inches distant from the adjoining property line of the said Schneider. The defendant’s answer was filed on July 6th, and he denies the assertion in the bill that he had commenced the erection of Ms building within a few days before the filing of the bill, on the 2d of July. On the contrary, he alleges that the trenches for the foundation of the southwesterly side of his building were dug about the 1st day of June; that the work on the foundation was commenced on the 2d day of June, and continued up until the time of the serving of the restraining order in this suit. The defendant’s building is a brick structure, fifty-eight feet in depth, and has been built to a height of fifteen feet: the second story joists are already on. He alleges that contracts have been made for millwork to carry the plans into effect, also for iron work, beams and trusses, and an iron front for the building, which will be entirely useless if the width of the building be changed. The defendant further sets up in his defence that in a conversation with Ezra B. Lake, secretary.and general manager of the Ocean City Association, the latter stated to the defendant that the Ocean City Association would take no steps to compel the defendant to remove his wall; that, relying on that statement, the defendant entered into the contracts above named.
    The defendant further alleges that, within a few years past, As-bury avenue, which was formerly used for residential purposes, has come to be used almost exclusively for business purposes; that nearly every house on the northwesterly side of Asbury avenue, between Sixth and Ninth streets, where the defendant’s house is situated, is located over the restrictive lines mentioned in the above covenant, either on the front or on the side; that many buildings on the southeasterly side of the street have also been located in violation of the said restrictive lines, and that there has not been, within the past four j^ears, one building erected on Asbury avenue, between Sixth and Ninth streets, for business purposes which does not violate the restrictions, -either as to side lines or front property line; that the restrictive lines as to buildings, have been violated almost from the time the first house in Ocean City was built. The defendant instances the Ocean City House, the Methodist Episcopal Church, at the corner of Central avenue and Eighth street, and the Protestant Episcopal Church, at the corner of Central avenue and Eleventh street, as being-built over the restrictive lines. The defendant sets forth further instances of breaches by the Ocean City Association itself of the restrictions and reservations of lots by the Ocean City Association which were parts of its general plan, and particularly' that the association sought to erect buildings on the lands reserved for a park. The defendant refers to a suit in restraint of the association’s effort to appropriate the park lands in breach • of its covenant, reported under the name of Lennig v. Ocean City Association, 1J Stew. Bq. 606. He further alleges that the association contracted with one Matthews that if he would secure to the association the right to dispose of property which, by its general plan, it had agreed to reserve as a park, the association would convey one or more lots to him, and the defendant says that, with the said association’s assent, Matthews did, in violation of the restrictions and reservations, locate a dwelling-house on the reserved park ground. The defendant further alleges that, from 1883 until the time of the filing of the answer, the building restrictions above recited have been violated, with full knowledge of the Ocean City Association, and with its entire acquiescence, until the beginning of this suit.
    The defendant, in his answer, insists that the complainants are improperly joined, and that the facts set forth in the bill show, no sufficient ground for relief, and he prays the same benefit as he would have been entitled to had he demurred to the bill of, complaint
    Issue was joined and the cause has come to a hearing.

      Mr. David J. Pancoast, for the complainants.

      Mr. George A.-Bourgeois, Jr., for the defendant.
   Grey, V. C.

It may be stated in the opening of the consideration of this-cause, that the defendant, Headley, appears, by his answer and by all the evidence, to have so located his building on lot No. 441, section A, of the Ocean City Association plan, that it is within four feet of the side lines of that lot. It is clearly shown that-if the restrictions created by the deed for lot No. 441,-from that association to 'William B." Wood (the defendant’s remote' grantor), are still imposed on that lot, the location of the defendant’s building is in violation of them.

The disputed points in the cause therefore depend upon the efficiency of the defence set up, that the association has so acquiesced in notorious breaches of the restrictions in question, that they have been abandoned and that it is not now in a position to ask relief in equity enjoining specific performance of them, but must be left to its remedies (if it has any) in the courts of law; and as to the complainant Schneider, that he also is in no position to ask this court to enforce the restrictions against the defendant’s lot, for the various reasons hereinafter discussed. ■

The bill of complaint in this cause recites from the deeds made by the Ocean City Association, in the inception of its enterprise, special covenants, restrictions and conditions affecting the use of the lands conveyed by the association. These all indicate a general plan for the development and improvement of the land which the complainant, the Ocean City Association, was offering for sale at Ocean City. The association, in its bill of complaint, alleges that it sold both the lots in question in this cause; lot No. 443, to Thomas Shaw, a remote grantor of the complainant Schneider, and the other lot, No. 441, to William B. Wood, a remote grantor of the defendant, Headley, under this plan. The recited restrictions and conditions exhibit a general building scheme intended to be made more attractive by the restrictions imposed upon the use of the lots, and also a purpose to make the settlement a place where those religiously inclined might find a harmonious environment. The concluding declaration following all the conditions and restrictions in the deed clearly expresses the idea that all the lots were to be sold with this general object in view, for it is there recited that the original intended purpose of the party of the first part (the association) was the “securing the whole island as a Christian seaside resort.”

• The complainants allege that the defendant is grantee of one who purchased from the association by a deed which imposed all-the recited restrictions; that in erecting his proposed building he has broken that restriction which required him not to erect any building within four feet of the side lines of his lot.

It should be noted that it is neither alleged nor proven that the defendant has himself entered into any covenant with either of the complainants. The person who, by accepting a deed covenanted with respect to lot No. 441, owned by defendant, was William B. Wood, to whom the association conveyed, and in whose deed the restrictions are contained. The defendant, Headley, is a subsequent grantee through several intermediate holders of the title. His deed was made to him not by the association, but by one Eobert Corson. It -does not contain the restrictions. The recital in Headley’s deed is, that the lands are conveyed to him “under and subject, however, to the reservations and restrictions of the. Ocean City Association.’’

These words are indefinite and uncertain. They do not specify what reservations and restrictions of the association are referred to, nor do they point out any deed, record or other place where they may be found. If these deficiencies be supplied by conjecture (for no proof has been offered to show to what, restrictions the words refer), and it be assumed that they declare that the conveyance of lot No. 441 to Headley was subject to the reservations and restrictions of the Ocean City Association in and by its deed conveying the said lot to William. B. Wood, dated January 24th, 1881, they are still inoperative to create any personal undertaking on Headley’s part to observe the restrictions set forth in the association’s deed to Wopd. The utmost effect which can be claimed for the recital in Headley’s deed is, that in 1881, the restrictions had been imposed upon lot No. 441 by the deed which the association then made to William B. Wood.

No privity of contract between the association and Headley was created bjr the recital in Corson’s deed to Headley. ' The' reference to restrictions cannot be held to be a new covenant entered into by Headley. It is a mere warning that in buying lot No. 441, he took it under and subject to restrictions in the use of that lot which the association had theretofore imposed. In short the mention of the restrictions in Corson’s deed to Headley is not a contract regarding the restrictions, and has no original binding force, expressly or impliedly, upon Headle3r, as his contract. The reference .to the restrictions, if effectual at all, is in the same class as the familiar phrase in deeds, where property is recited to be conveyed, “subject to a mortgage of -made by-to —:-—Such clauses impose no contractual obligation on the grantee to pay the mortgage; they simply give notice of a previously existing charge on the lands. If the grantee in a deed containing such a recital releases his interest in the lands, he has no personal liability, for the debt. Tichenor v. Dodd, 3 Gr. Ch. approved in Crowell v. St. Barnabus, 12 C. E. Gr. 655 (Court of Appeals).

. This exposition of the effect of the recital in the deed from Carson to Headley is of importance because the counsel for the complainants contends that the clause referred to in that deed is a personal undertaking by Headley (as of the date of the receipt of his deed in May, 1896) with the association, and that no instances of the latter’s acquiescence in the abandonment of the restrictions are of any avail in behalf of Headlejr, unless they happened after the date of the delivery of Headlej^s deed. Whereas, by the true construction of the reference to restrictions in Headley’s deed (if that reference is sufficiently definite to have any effect), he was notified that the association had, in 1881, conveyed lot No. 441 to Wood, subject to the restrictions. If, in 1896, when Headley’s deed was delivered, the association had abandoned the restrictions, they were no longer binding on lot No. 441. They were in the same position as a mortgage, subject to which a lot had been conveyed. If the mortgage had been paid, the lot would be discharged from its lien. So if the restrictions had been abandoned in 1896, when Headley took his deed for lot No. 441, they cannot be enforced against that lot. Headley’s deed cannot be held to have revived and renewed them. The utmost that can be ascribed to tire reference to them in Headley’s deed is that it recognized their original creation.

But even upon the above-stated theory of the counsel for complainants, that no instances of abandonment of the restrictions by the association can be considered other than those which happened since Headley took his deed, the evidence in this cause .shows that violations have continued since the taking of Headley’s deed. The proof shows that Mr. Campbell’s store, at the corner of Ninth street and Asbury avenue, built since this suit was begun, and the building of Mr. Anderson Bourgeois, on the opposite side of Ninth street, built in the spring of 1897, were located in violation of the restrictions, both of them after the-date of Headley’s deed in May, 1896. No proof of substantial objection of any sort is offered, though these are large structures upon the most public and traveled streets of Ocean City.

It being shown that the complainants’ contention is an error,, and that the mention of the restrictions and reservations of the Ocean City Association in Headle3r’s deed was merely an acknowledgment by him that restrictions upon the use of the land conveyed had been previously imposed b3^ the association in its deed to Wood, in 1881, it follows that any instances of acquiescence in the abandonment of the restrictions by the association,, since 1881, are forceful to show that they are not presently obligatory, and to put the association in the attitude of a party who, having notoriously abandoned the enforcement of a covenant to which it was itself a part3r, now comes into a court of equity and asks that it be enforced against the grantee of one of the other parties to it.

The evidence in the cause of many breaches of the restriction upon the location of buildings at the distance of four feet from the side lines and ten feet from the front line of the lots sold, is substantially undisputed. It shows that from the very inception of the enterprise buildings were openly placed on the lots sold, in manifest and entire disregard of their relations to either side lines or the front lines, and in violation of the restrictions. These incidents happened in so many different eases, and with regard to buildings of such important character, such as the public hall, the trust company’s bank building, churches, hotels, city power-house, boarding and dwelling-houses and the like,, located in the busiest part of the city, and running over a period of time for some twelve to fifteen years, preceding the making of the deed to Headley, that it is impossible to believe that the association had either intention or expectation of enforcing the covenant requiring buildings to be located at certain distances from the front and side lines of the lots sold. More than fifty out of sixty odd buildings erected in the immediate neighborhood of the defendant’s (Headley) lot, have been located in breach of the prohibition regarding the distance'from the side lines, and more than sixty of them in breach of that regarding the front lines. The character of the violations was so public and notorious that it must have been impossible to pass the streets where they were constantly happening without noticing them. The superintendent and manager of the association was a resident of ■Ocean City during the period when these violations of the re.strictions in the association’s deed were being committed. He was called as a witness by the complainants to enforce the covenant. His answers on cross-examination, as to the tacit assent ■of the association to these repeated violations of the restrictions, were unwilling and evasive. He sought to deny knowledge of .any of the violations which occurred under his ■ observation, because'. lie said he had not actually measured their extent in feet .and inches. His own testimony, however, shows that not only he, but the association itself, had familiar knowledge of these violations, and that they permitted the owners-of adjoining side lines to arrange the location of their buildings to suit their own profit and convenience, in open breach of the restrictions. This was notably shown by the testimony of the superintendent him.self with regard to the location of the Central Trust Company’s .building. He was asked:

“Q. Did you understand that they [the Central Trust Company] had 'bought part of Mr. Murdock’s lot, or was your understanding that there was an agreement between them and Mr. Murdock that if they would let him build over on their side, he would let them build on his side?
“A. I don’t know anything about the terms, but that is what I recommended, that he should buy part of Murdock’s lot, as he said he had drawings and it would be a very great disadvantage to cut his drawing off and •destroy his building; I said, ‘Your correct way would be to buy part of Murdock’s lot,’ and they went on and did the work; I don’t know whether ■they bought it or not.”

The Central Trust Company’s building, under this arrangement, was located in violation of the restrictions. The location of Mr. Fisher’s block, on the corner of Seventh street and Asbury .avenue, was another case where a dispute arose between Mr. Fisher and Mr. Werts, an adjoining owner. The superintendent testified that Mr. Werts wrote several letters to him, and the matter got so far as a. notice for the association’s attorney to take up the case for'him, and that the association would pay the damages. The superintendent further testifies, “Finally Mr. Fisher and he made some settlement—I don’t know what—so-that we were not asked to go on any further with it.” He was then asked, “Q. And the building remained over the line, as I understand it ? A. I don’t know that; I presume it is; I haven’t measured.” The Fisher block is one of those proven to have been built in violation of the restrictions. At another place in the testimony of the same witness, after having been examined as to many specified buildings and whether they had been built over the line, he replied, “Some of them had been presented to-us, but some of them that he has been talking about were not.”

One of the complainants’ witnesses, Mr. Stiles, called by them to prove the value of the restrictions as to building lines, was obliged to admit, on cross-examination, that he had himself erected a building in breach of them. The complainant Schneider was proven to be in the same category, as will appear in the further consideration of his relation to this case.

The earliest violation -shown was in the first or second year after the inception of the enterprise. More than one hundred have since occurred, and they are still going on, the last one proven (the location of Mr. Oampell’s store, at the corner of Ninth street and Asbury avenue) having actually happened since the beginning of this suit. In no case of all these violations, saving the present suit, ivas any stop taken by the association to enforce the restrictions, other than mere empty notice and futile talk. In 1895, after the violations had continued for at least some twelve or thirteen years, the superintendent testifies:

“Our Association came to the conclusion that it was no more their business to maintain this restriction than anybody else’s, but as some people were complaining of the expense of having to fight it single hand, we then-agreed to give public notice that we would pay the expenses of anybody that was aggrieved in the violation of any restriction as found in the deed to the Ocean City Association, and that is what brings this suit to us.”

Here is plain proof that the association knew of these violations ; that it had not undertaken, in any efficient way, to correct them, and that it was seeking to throw all the responsibility and vexation, of legal proceedings, except actual cash expended, upon purchasers of its lots, although it alleges that the breaches of the restrictions are of great injury to it in the sale of its remaining iots. Such a notice, published under such circumstances, goes far to show the substantial previous acquiescence of the association in the violation of the restrictions.

The defendant bought and paid for his lot, with the above condition of affairs as to the observation of the restrictions in view. The violations wore numerous, open, long continued and destructive of the object obviousty intended to be secured by them—i. e., free access of light and air. The violations have gone on and are still proceeding since this suit was begun, as the evidence shows. Notwithstanding the great number of proven violations during the fifteen years, no other suit to enforce these building restrictions has been commenced. The evidence shows .a substantial abandonment of them by the association, and certainly places it in such a position to Mr. Headley that it would be highly inequitable to permit it specifically to enforce them, when for years it has. assented to breaches of them by all his neighbors, thus depriving his lot of the advantages which their enforcement would have given it.

The princi])le involved has been lucidly expounded by Lord Eldon, in the case of Roper v. Williams, 1 Turn. & R. 18. A bill was there filed praying an injunction restraining the erection of a building, because it was alleged to be in breach of a plan of building which the owner of the land had imposed for the benefit of all the grantees. The lord-chancellor declared: “Having long lived in Gower street, I have often been in the habit of illustrating my view of such cases by references to the stipulations contained in the Duke of Belford leases. In the lease, of every house on the east side of that street is contained a covenant that there shall be no erection behind them exceeding a certain height. The landlord in such a case is stipulating, not only for his own benefit, but for the benefit of all the tenants in that neighborhood. If, therefore, the landlord, in some particular instances, lets loose some of his tenants, he cannot come into equity to restrain others from infringing the covenant to whom he has not given such a license. He may have a good case for damages at law; but if he thinks it right to take away the benefit of his general plan from some of his tenants, he cannot, with any justice, come into equity for an injunction against those tenants. It is not a question of mere acquiescence; but in every instance in which the grantor suffers grantees to deviate from a general plan intended for the benefit of all, he deprives others of the right which he had given them to have the general plan enforced for the benefit of all. In such cases I have always understood this court will leave the parties to their remedy at law. There is another view in which this case may be considered; every relaxation which the plaintiff has permitted in allowing houses to be built in violation of the covenant amounts, pro tanto, to a dispensation of the obligation intended to be contracted by it. Yery little, in cases of this nature, is sufficient to show acquiescence, and courts of equity will not interfere, unless the most active diligence has been exerted throughout the whole proceeding. It is not sufficient to have given notice of the covenant in 1818. In every case of this sort the party injured is bound to make immediate application to the court in the first instance, and cannot permit money to be expended by a person, even though he has notice of the covenant, and then apply for an injunction.”

With regard to the complainant Schneider and his right to enforce against the defendant, Headley, the restrictions in question, three grounds of objection are submitted. First, it is claimed that there is no express contractual relation whereby the defendant, Headley, had agreed with the complainant Schneider to observe the restrictions in question. It should be noted that the deed from the association, conveying lot No. 441 to Wood, was made on March 14th, 1881, while the deed made by the association to Shaw, conveying lot No. 443, was made November 6th, 1880. The rule allowing a purchaser of a lot of land benefited by the covenant to enforce it, though he may not be a direct party to it, is only applicable when a subsequent purchaser seeks to enforce it against a prior purchaser who made it and against his assigns who took with notice of it. The purchaser who bought subsequently to the covenant, took his lot in expectation of the benefit to be derived from the restrictions imposed by the prior deed, and is presumed to have adjusted his consideration-money in view of the benefits to his lot which were derived from the observance by the prior purchaser of the restrictions imposed. The prior purchaser did not buy in expectation of any benefit to be derived from him from any subsequent covenant not yet in existence, nor did the subsequent purchaser make his covenant with the common grantor with relatipn to lands which the latter had previously conveyed and in which he had no interest. It is only when there is a general plan imposed upon the lands sold, under which each purchaser buys, that a prior purchaser may enforce against a subsequent purchaser who violates it. Mulligan v. Jordan, 5 Dick. Ch. Rep. 363; Roberts v. Scull, 13 Dick. Ch. Rep. 401.

In this case the allegations of the bill, as above stated, clearly indicate that there was a general plan of development of the association’s iots, of which both complainant Schneider and defendant’s (Iieadley) lots were a part. Although the introduction of proof that there was a general plan, including the reservation of a park as part of it, was resisted by the complainants, the evidence afforded by an inspection of the deeds made by the association to' Shaw and to Wood, and the recitals of special restrictions and the object of them all, sufficiently prove that the Ocean City Association, in plotting aird selling its lots, was so doing pursuant to a general scheme, to which all sales and conveyances of land were made subject. These deeds are referred to in the complainants’ bill and were offered and admitted in evidence, and if this first objection to the status of the complainant Schneider were the only one, he should be held to have shown a right to maintain this suit to enforce the covenant in question—part of the general plan.

The second objection taken to Mr. Schneider as complainant is that, knowing that Eleadley had bought and was about improving his lot in such a manner that his building was located nearer than four feet of the side line, Mr. Schneider stood by and took no efficient step to enforce the restrictions until Mr. Headley had not only begun, but had partially constructed, the foundation of his house; that Mr. Schneider purposely allowed Mr. Headley to build his wall in the objectionable place to a height of some feet, intending, by obtaining an injunction, to compel him to take it down. The weight of the testimony sustains this criticism .of the action of Mr. Schneider. He resided next door to Mr. Headley’s lot. The latter’s proposed improvement was directly within his observation. He had conversations with Mr. Headley, which show that the proposed location of the latter’s house was within Mr. Schneider’s consideration and notice.

Mr. Schneider was asked, by his own counsel, relative to Mr. Iieadle3'’s building:

“Q. What had he done a,t the time you served the first notice on him by word of mouth?
“A. You mean in regard to building?
“Q. Yes.
“A. He had the foundation laid and I spoke to him about it; I would not like to say what he said.
“Q. Never mind that; you said that?
"A. And he went right on again.
“Q. Now, what had he done at the time you served this written notice?
“A. He had the building started and continued.
“Q. JDid he afterwards stop the building for a time?'
“A. Yes, sir; and went to Atlantic City, came back and started again.
“Q. What is the condition of the building now?
“A. It is completed and tenants in it.”

From bis own testimony it thus appears the complainant Schneider stood by, even before his complaint by word of mouth, until after the foundation of Mr. Headley’s house had been laid in breach of the restriction. It was three weeks, less one day, after this, before Schneider gave formal notice to Headley of his purpose to take legal proceedings to enforce the restrictions, and it was a month, less one day, before he actually filed his bill. This is the situation as exhibited by Mr. Schneider’s testimony. Mr. Headley produces a witness, Albert Baker, who had, about the time this suit was begun, a conversation with Mr. Schneider ¿regarding the location and construction of Mr. Headley’s house. Baker was asked:

“Q. What did Mr. Schneider say?
“A. He said he would wait till Harry got up about six feet and then he would have an injunction put on him, also he would have the bricks removed in front of his lot.”

The strong indications of the testimony are that Mr. Schneider stood by and allowed Mr. Headley to spend his money in .his improvement, intending to take him at a disadvantage by this suit. He is within the operation of the rule laid down by Lord Eldon, in the above-cited case of Roper v. Williams: “It is not sufficient to have given notice of the covenant. In every case of this sort the party injured is bound to make immediate application to the court in the first instance, and cannot permit money to be expended by a person, even though he has notice of the covenant, and then apply for an injunction.”

The third and last objection made by the defendant to the status of the complainant Schneider is that the same covenant under tlie general plan which Schneider declares, by his bill, is a restriction upon the use of Headley’s lot to compel the latter not to erect any building within four feet of the side lines, is also admittedly obligatory upon Schneider himself not to erect any building within four feet of the side line of his lot. The evidence shows that on each side of his lot the complainant Schneider has himself violated these restrictions. On Headley’s side, at the time the bill was filed, the roof of Schneider’s two porticos actually projected across the line of Headley’s lot, for some six and three-quarters inches, for a length of some ten feet as to one, and for seven and a quarter inches as to the other. Since this suit was brought these ovorprojeetions have been cut off, but at this time, by Schneider’s own testimony, it is admitted that his porches are located within an inch of Headley’s property line. The evidence further shows that his whole house, on Headley’s side, is within four feet of Headley’s line. In this undenied condition of the proofs, showing that the complainant Schneider is presently violating the very covenant which he seeks to enforce, he is in no position to ask the aid of this court to compel another party to observe it. He who seeks equity must do equity. In cases such as are exhibited by these proofs this court •will refuse its aid, and the complainants must seek their remedy, if any they have, in the courts of law. Roberts v. Scull, 13 Dick. Ch. Rep. 405.


text:
    William H. Jones et al., executors, &c., v. William Watford et al.
    [Filed October 2d, 1901.]
    A will contained the following residuary clause: “All the rest, residue and remainder of my estate, real and personal, whatsoever and wheresoever found, I give and bequeath unto my executors, hereinafter named, and their successors in trust, for the purchase of books upon the Philosophy of Spiritualism, not sectarian, or of any creed, Church or Dogma, but of free, liberal bearing. Said books to be placed by my executors where they can be free to all who desire to think for themselves, and who are seeking for the truth from the true and living God, for X believe in one God, one Church and one Country, first, the great unknown, second, the whole human race, as one family, third, the whole Globe the home of all nations, that is my Trinity.”—*Held, that the residuary gift is expressed in terms sufficiently certain to enable it to be carried into effect. That though the trust is a perpetuity, which “executors and their successors” cannot execute, yet it is also a charity, which a court of equity will not permit to fail for want of a trustee.
    On bill for construction of a will and answer.
    This bill of complaint is filed by the executors of the will of Thomas B. Watford, asking an interpretation' of his will and instructions from this court- to the executors in the performance •of their duties. The bill exhibits the following circumstances: The testator died in October, 1899, apparently without widow or children, his nearest relatives being his nephews. The will was proven before the surrogate of Burlington county and letters testamentary were issued to the complainants. The testator bequeathed certain money legacies and disposes of the residue of his estate as follows:
    “All the rest, residue and remainder of my estate, real and personal, whatsoever and wheresoever found, I give and bequeath unto my executors, hereinafter named, and their successors in trust, for the purchase of books upon the Philosophy of Spiritualism, not sectarian, or of any creed, Church or Dogma, but of free, liberal bearing. Said books to be placed by my executors where they can be free to all who desire to think for themselves, and who are seeking for the truth from the true and living God, for I believe in one God, one Church and one Country, first, the great unknown, second, the whole human race, as one family, third, the whole Globe the home of all nations, that is my Trinity.”
    The complainants, executors of the will, allege that the next of kin claim that this residuary bequest is void, and the executors say that they are in such doubt and uncertainty on the question of its validity that they fear they may be subjected to loss unless they have the aid of this court in the premises. They ask the court to instruct them whether the residuary bequest is lawful and valid and one which will be enforced by a court of equity.
    The next of kin file their answers to the complainants’ bill, substantially admitting the facts alleged therein. The defendants further say that the executors, after paying the legacies named in the will, have about thirty-five hundred dollars, which constitutes the residuary bequest. The defendants claim that the residuary bequest is void, and that it cannot be enforced. They insist that the testator, as to the residuary bequest, died intestate, and they ask instructions that the executors pay the residue in their hands to the defendants.
    The testator does not appear to have died seized of any land in the State of New Jersey.
    The cause came to hearing on the bill and answer, without any proofs offered by either party.

      Mr. Robert S. Glymer, for the complainants.

      Mr. Robert C. Sparks, for the defendants.
   Grey, V. C.

The cause having come to a hearing on bill and answer, the allegations in the answer must be taken to be admitted to be true. Chancery act, Gen. Stat. p. 379 § 43.

The terms of the residuary bequest are so peculiar that the executors are justified in asking the instructions of this court before disposing of tbe moneys in their hands affected by that bequest.

The defendants dispute the validity of the residuary gift upon these grounds—first, that it is so uncertain and indefinite in its terms that it cannot be .carried into effect, in that it does not sufficiently describe the books to be bought; that it fixes no place where they shall be' located, and prescribes no plan whereby they may be used; secondly, that it casts upon the executors the performance of an ever-continuing trust, which is beyond their power; thirdly, that it creates a perpetuity, and that it is not a charitable bequest, and is therefore void.

As to the criticism of the residuary gift, because of its uncertainty, it appears, on its face, to direct the purchase of books treating of a well-known and widely-discussed subject of common interest. Any books which treat of the philosophy of Spiritualism, which are not sectarian and which deal with that subject freely and liberally, are within the class created by the testator. Such books may present the philosophy of Spiritualism favorably or unfavorably to the acceptance and extension of that belief; in either case they comply with the testator’s terms. It cannot be assumed that if an order were given for the purchase of such books, it could not be filled because of the uncertainty of the description of the books. There is no allegation in the answer that such a condition exists, nor is it probably true in actual fact.

It is true the will mentions no specific place where the books, when purchased, shall be located, but precise certainty in such an incident is not necessary to the efficacy of the gift. They are required to be placed in a location where they can be “free to all,” &c. The testamentary declaration indicates that they are to be kept intact in a place;where they can be visited by all who are interested, and does not direct that they shall be distributed. More specific designation is not necessary.

To the objection that no definite plan is formulated for the use of the books in the will, it is well answered that the general object is fully expressed, and there is no indication on the face of the will that the testator had in his mind any particular plan as to the mode in which his bequest should be carried into effect. This case radically differs on this point from the case of Smith v. Smith, 9 Dick. Ch. Rep. 1; affirmed on appeal, 10 Dick. Ch. Rep. 821. In that case the testator gave his entire estate to trustees to establish a school. He directed that the school should bo conducted on the plan “which I have, from time to time, described to most of the board of trustees herein named, and who shall approve of final practical plans in keeping therewith.” The testator had, by parol, communicated to the trustees fragmentary and general ideas with «reference to the school he intended to establish. It was held that the testator did not contemplate the establishment of a school otherwise than as controlled by the plans which he had, by parol, discussed; that the face of the will did not define what these plans were; that the statute requires a will to be in writing, and the reference in the will by the testator to the verbal communications made by him to the trustees could not he held to be a part of the will. The bequest failed because the testator, in his will, sought to create a trust dependent for some of its necessary incidents upon his previous parol declarations. ' In the present case the testator does not indicate that he had any testamentary intent regarding a definite plan whereby alone the benefits of his gift might be enjoyed. Any plan which makes the books freely accessible to all those “who desire to think for themselves, and who are seeking for the truth from the true and living God,” would carry his testamentary expressions into effect.

None of the criticisms of this residuary bequest for indefiniteness are justified. The adage “that which can be made certain, is of itself sufficiently certain,” is an answer to all of them.

The second objection to the residuary bequest, that it imposes upon the executors an ever-continuing trust, which is beyond their power to perform, and the third^that it creates a perpetuity, and is not a charit}!-, and is therefore void, will be considered together.

The terms of the bequest, and the obvious intent of the testator there expressed, show that he expected that the executors and their successors would carry this trust into effect, but the fact that the testator has selected trustees who are incapable of performing the trust, will not be permitted to defeat the trust itself, where it is a charitable bequest. Is this residuary gift a charity ?

The court of appeals, in Thomson's Executors v. Norris, 5 C. E. Gr. 523, declared that the rulings of the English courts upon the statute of charitable uses (43 Eliz. c. 4) are the sources from which the law of this state has been derived defining what constitutes a charity.

In Thornton v. Howe, 31 Beav. 14, there was a residuary gift, which the testator directed to be applied “for the printing, publishing and propagation of the sacred writings of Joanne South-cote.” Mrs. Southcote imagined herself to have been specially selected by God as the organ whereby mankind might communicate with him. Her writings exposed her intercommunings with the spiritual world, and might fairly be classed with the books upon the philosophy of Spiritualism, for the purchase of which the testator in the case under consideration provides. Sir John Eomilly expressed his opinion that this woman was both ignorant and foolish, but he decided, nevertheless, that her bequest providing for the publication of her writings was within the charitable class, and would be enforced in equity. His judgment was cited, with approval, by the court of appeals, in George v. Braddock, 18 Stew. Eq. 764.

The bequest in the will now before me is a donation for the purchase of books upon a subject interesting to a large class of readers, access to which, by the express terms of the will, is required to be “free to all who desire to think for themselves, and who are seeking for the truth from the true and living God.” The class which may possess these prescribed characteristics is so indefinitely large that the gift is substantially for the benefit of the general public. No one is required to pay anything for the exercise of the privilege secured by the gift. No one can receive any pecuniary profit from the performance of the trust. Its. opportunities and benefits are freely offered to all, and it may fairly be classed as a charitable gift for the good of mankind. Such a gift will not be permitted to fail for want of a trustee. Where the testator has, by neglect or mistake, failed to name one capable of executing the trust, a court of equity will carry it into effect by appointing an efficient trustee. Pom. Eq. Jur. § 1026; Mason's Executors v. Trustees of Methodist Episcopal Church, 12 C. E. Gr. 53.

No charge has been made against the bequest because of any alleged tendency to immorality or irreligión, nor, in view of the principles expounded in the above-cited cases of Thornton v. Howe and George v. Braddock, does there seem to be any room for such an objection.

The complainants are entitled to a decree that the residuary bequest in question is legal and valid, and that it is one of a class which will be recognized and enforced in a court of equity.

The executors who have the residuary fund in hand, but are unable to execute the trust, may apply for the appointment of a competent trustee to perforin it, to whom they may safely pay it.


author: Magie, Chancellor.

text:
    Anna G. Brearley and Florence B. Whitehead v. Alice L. B. Molten, executrix, &c., and Robert V. Whitehead, trustee, &c.
    [Submitted September 17th, 1901.
    Filed November 6th, 1901.]
    1. A testatrix, by her will, empowered her executrix (who was her daughter) to sell all her property and divide the proceeds equally between herself and a trustee, who was to hold the share paid to him in trust, and to pay the income to testatrix’s daughter-in-law and granddaughter during the life of the granddaughter, and upon her death to divide it among her children.

      2. The will directed the executrix to sell certain stores, on or before the expiration of the lease thereon, and a certain farm, with other property, within five years from the decease of testatrix, and to divide the proceeds as above stated. It further provided that, until the disposition of testatrix’s estate as directed, the executrix should receive the rents thereof and divide them equally between herself and the granddaughter.—Held, that the executrix was thereby required, pending the disposition directed, to use the rents received from all the property in keeping down the annual taxes and charges on every part of the property before dividing them. Aliter, as to assessments imposed on the property for municipal improvements or betterments, which are properly chargeable, in equitable proportions, upon the life interest and the remainder.
    3. It appeared that the stores wmre not sold by the executrix within .the period directed, but the lease urns renewed,'with the approbation and consent of the daughter-in-law and granddaughter.—Held, that the latter could not complain because the executrix thereafter applied some of the rents thereof to the payment of the annual taxes imposed on the farm, the income from it being insufficient to discharge them.
    ■I. The period within which, the farm was directed to be sold had expired about a month before the daughter-in-law and the granddaughter filed the bill in this cause. It appeared that they had never requested the executrix to sell the same at public auction. It is a fair inference from the proofs that they and the executrix agreed in the view that the farm ought to bring the price of $60,000. The executrix had made efforts to sell the same at private sale, but without success. The bill prayed, among other things, for a decree requiring the executrix to forthwith sell the farm at public sale, if need be, and out of the proceeds to reimburse the complainants for so much as had been used of their share of the income of the stores -to pay taxes on the farm, and to pay to the trustee one-half of the remaining proceeds of the sale.—Hold, (1) that no part of the taxes paid can be charged upon the principal of the fund, and (2) that if, under the circumstances appearing, complainants have a right to require the executrix to make a public and forced sale of the farm, a decree for such sale should not be made in the absence of the children of the granddaughter, who are to take the proceeds after her death, and who are infants, and not made parties.
    The contest in this case relates to the will of Catherine M. Brearley, the pertinent provisions of which are the following:

      “Fifth. I will and direct my executrix to sell and convey the stores on the corner of State and Broad streets and on Broad street adjoining, in the city of Trenton, on or before the expiration of the lease thereon, and divide the proceeds equally between my said daughter and granddaughter.

      “Sixth. I will and direct that my Chambersburg farm, now in the city of Trenton, lying on the southwesterly side of the Crosswicks turnpike road, and my other lands, meadows and fiats in the township of Hamilton, in the county of Mercer and State of New Jersey, and my farm called the Dutch. Neck Farm, in said county of Mercer, be sold and conveyed by my executrix within five years from my decease and the proceeds equally divided between my said daughter and granddaughter.

      “Seventh. All the rest of my estate of every kind and wheresoever situate, I will and direct to be sold by my executrix and turned into money and the proceeds equally divided between my said daughter and granddaughter.

      “Eighth. All property and money herein devised and bequeathed to my granddaughter, Florence B. Whitehead, and her shares in any money or stocks or property herein given to her, are to be placed and held in trust by the Real Estate, Safe Deposit, Trust and Investment Company, Trenton, New Jersey,.to hold and invest the same and collect the rents, issues and profits thereof, and to apply the net income therefrom as follows: the one-third part of said income to my daughter-in-law, Annie G. Brearley, widow of my deceased son, Anderson L. Brearley, during her lifetime, and the other two-thirds parts thereof to pay to my said granddaughter, Florence B. Whitehead, during her life, and after the death of said Annie G. Brearley to pay the whole of said income to my said granddaughter during her life, and at the decease of my said granddaughter the whole of said property and money so held in trust by said company to go and become the property of the children of said Florence B. Whitehead in equal shares, and if they or either of them be under age then the said company to hold the share of said infant during minority—the legal representative of any deceased child to have the share of his or her parent.

      “Tenth. Until the disposition of my estate as hereinabove provided and directed by this will, I will and direct that my executrix shall receive and collect the rents and profits thereof and divide the same equally between my said daughter and granddaughter.”
    By a subsequent codicil the trustee named in the eighth item was discharged and other trustees were substituted.
    After the death of testatrix the trustees so substituted were discharged, by a decree of the orphans court of Mercer county, in which the will and codicil were proved, and Robert V. Whitehead was substituted as sole trustee, under the eighth clause- of the will.

      Mr. Edwin li. Walker, for the complainants.

      Mr. Garret D. W. Yroom and Mr. William M. Lanning, for the defendants.
   Magie, Chancellor.

The bill in this cause was filed by Anna G. Brearley and Florence B. Whitehead, the first being the widow of Anderson L. Brearley ancl the latter'being'the granddaughter of Catherine M. Brearley, and both being the beneficiaries named in the eighth item of the will of said Catherine, who was the mother of Anderson 'and the grandmother of Florence B. Whitehead.

The defendants in the cause were Alice L. B. Molten, the sole executrix of the said Catherine M. Brearley, deceased, and Robert Y. Whitehead, the trustee who had been substituted as trustee, under the eighth item of said will, for the trustees named in the codicil to the said will.

It appears from the proofs that the testatrix died on the 13th day of December, 1895. It further appears that the stores referred to in the fifth item of the will, and which were thereby directed to be sold by the executrix on or before the expiration of the lease thereof, were, at the death of the testatrix, under a lease which expired the 1st dajr of April, 1898, and that they were not sold on or before that date, but that the lease thereof was renewed.

Complainants’ bill, ■ however, admits that the failure of the executrix to make sale thereof as directed, and the renewal of the lease thereof, were known to the complainants, and were with their “approbation and consent.”

It further appears that the Chambersburg farm referred to in the sixth item of the will, and therein directed to be sold within five years from the decease of the testatrix, has not been sold. The time within which the sale was directed expired on the 13th of December, 1900.

It further appears that the executrix has, since the death of the testatrix, received and collected the rents and profits of the testatrix’s estate, pursuant to the provisions of the tenth item of the will. It appears that the stores which were directed to be sold, by the fifth item of the will, produced a satisfactory income, which has induced the parties to consent to retain them in the estate, without ■ sale. The Chambersburg farm has, during the whole period since the death of the testatrix, produced an income insufficient to pay the taxes imposed on it by the city of Trenton, within the boundaries of which the farm lies. It appears to be property unavailable for profitable farming, and the value of which consists in the prospect that streets and avenues may be oponed through it. It is a fair inference from the proofs that the parties to the cause have considered this farm to be of considerable value, and have united in expressing the view that it ought not to be sold unless it should bring as much as $60,000. Efforts have been made to sell it at private sale, but without success.

Tt further appears that the executrix, out of the rents and profits received by her under the tenth item of the will, has paid the taxes imposed on the Chambersburg farm, and since the rent received by her from that farm was not sufficient, the remainder has been paid out of the rents and profits of the other property of the testatrix, including the stores, which were the subject of the fifth item of the will.

The bill in this cause sets out the facts which are above stated to appear b3r the proofs with substantial accuracy. It asserts that, in making payment of the taxes upon the Chambersburg farm, the executrix improper^ made use of the rents received from the Broad street stores, which were the subject of the fifth item of the will. It also asserts that the executrix, out of the rents and profits, paid one assessment imposed upon the Chambersburg farm for a public sewer laid by the city in its vicinity.

The bill pra3rs for a decree that the executrix defendant may be ordered to forthwith sell and dispose of the said Chambers-burg farm at public sale, if need be, and out of the money arising from said sale she ma3' be ordered to reimburse complainants for the amounts of money deducted from their respective incomes from the said Broad street stores, and that a one-half part of the net proceeds of such sale, after such disbursements, may be ordered paid to the defendant Bobert Y. Whitehead, trustee, to be by him invested, under the terms of the said will and codicil, and that, until such sale and disbursement of the proceeds thereof, said executrix may be enjoined and restrained from retaining any portion of the income belonging to cither of the complainants derivable from the said Broad street stores and diverting the same to the pa3rment of any past, present or future taxes, assessments or impositions against the said Chambersburg farm.

Both defendants answered the bill.

The answer of the executrix substantially admits the facts charged in the bill, but denies that the payments made by her for the taxes imposed on the Chambersburg farm were improperly made. On the contrary, she asserts that, under the will, it was her right and duty to pay them out of the rents and profits of the estate which she collected under the provisions of the tenth item of the will. It is conceded, however, that her payment of the assessment out of the rents and profits was erroneously made. The assessment being for betterment to the property, it is chargeable both upon the life tenant and the remaindermen in equitable proportions, and only so much of that which is properly chargeable to the life tenants should have been paid out of the rents and profits.

With respect to the prayer for the compulsory sale of the Chambersburg farm, the answer asserts that, during the five years after testatrix’s death, the executrix made Iona 'fide efforts to sell the farm, and did not succeed in finding a purchaser or bidder for it, and that complainants never requested that she should attempt to make a public sale of the farm until they filed their bill in this cause. The bill was filed January 2d, 1901; the five years had expired on the 13th day of the previous month.

The answer of the other defendant- (Robert V. Whitehead) admits the facts stated in the bill, and that complainants are entitled to have the Chambersburg farm sold, but denies that they are entitled to be reimbursed out of the moneys arising from the sale of the lands for the amounts which the executrix paid for taxes and assessments on the farm.

There is no controversy over the facts in this cause, and the prayer for an injunction against the future payment of taxes imposed on the Chambersburg farm involves a construction of the testamentary disposition made by Mrs. Brearley and the power which she conferred upon her executrix..

Where there is a general power of sale conferred upon executors, they are authorized to pay the expenses of superintendence, necessary repairs, insurance and taxes out of the rents thereof. Howard v. Francis, 3 Stew. Eq. 444. In this case the executrix is especially empowered to collect the rents and profits of the whole of the estate which she is empowered to sell by the express terms of the tenth item of the will. It is unnecessary to determine where the legal title to the lands directed to be sold remains prior to the sale thereof by her, for it is obvious that she has acquired, under the provisions of that item and the implications therefrom, a right to such occupation and possession as would enable her to take the rents and profits thereof.

The provisions _ of the will for the trust which is now represented by the defendant Whitehead do not, in terms, impose upon him any active duty until the sale of the whole or some part of the property has been made and the proceeds arising therefrom have been paid into his hands. Still he has an implied duty to his cestuis que trustent which will empower him to insist upon a sale of the property at a proper time, so that he can obtain the proceeds for the purpose of the trust. But, pending the sale, the executrix, by reason of her right to take the rents and profits and divide them between herself and Mrs. Whitehead, has a temporar3r trust with respect to the whole of the unsold property. In performing that trust it is obvious that it is her duty, out of the rents received by her, to keep down the annual charges by way of taxes and repairs, 'and that she would not perform her duty in that respect if she should distribute the rents and profits and permit the taxes to accumulate. Those taxes it was the duty of the persons entitled to the income to keep down and discharge.

In my judgment the duty of the executrix is not severable. The whole estate, pending sale, is one fund in her hands. The rents and profits derived from all of it is the special matter with which she is to deal, and her duty requires her, out of such rents, to keep down the taxes on every part of the property. As she made sale of any part of the property, and distributed the proceeds of such sale, so much was segregated from the fund, and she ceased to be trustee, except as to the rents and profits of the remainder unsold. Thereafter, if the rents and profits of what remained unsold were insufficient to pay the annual taxes thereon, those taxes would be payable by the executrix and the complainants. One-half of such taxes would be properly payable by the complainants, who are entitled to one-half of the rents and profits for their respective lives. Holcombe v. Holcombe, 2 Stew. Eq. 597.

The sale directed by the fifth item has not been made within the time directed by its terms. The' complainants admit that they have approved of the action of the executrix in that respect. They have, therefore, acquiesced in the executrix retaining the whole fund in her hands, and cannot complain of her action in dealing with the fund, under the terms of the will. The result, in my judgment, is that they are not entitled to enjoin the executrix from the use of the rents and profits of a part of the fund in keeping down annual charges against any part of the fund, which annual charges the complainants are liable for to the extent of one-half.

As before stated, the payment of the sewer assessment out of the income of the property was not justified, except to the extent that the life tenants of the income should contribute thereto. There is no prayer for a determination of the amount of the assessment paid which should be charged upon such income. In the absence of any allegation or proof of other assessment, or of the intent of defendant to pay the same out of the income, the prayer for an injunction restraining her from making such payment cannot be considered.

The prayer for a decree that the amounts paid by the executrix for taxes imposed upon the Chambersburg farm should be taken out of the proceeds of the sale of that farm before distribution between herself and Mrs. Whitehead, is disposed of by what has been said. They are properly payable out of the income of the estate, and should not be charged against the principal. To allow this prayer would also be-impossible, I think, under the present bill. It is obvious that if the prayer were granted, the proceeds of the sale of that farm would be diminished, One-half of such proceeds thus diminished would go to the defendant Whitehead in trust, not only for complainants, but for the children of Mrs. Whitehead, upon her decease. The children have not been made parties to this bill, and they are infants. With respect to their share, their trustee has no active duty to perform until the proceeds are paid over to him. The amount of those proceeds is a matter of interest to them, and they ought to be made parties to the bill. Smith v. Gaines, 12 Stew. Eq. 545.

With respect to the prayer for a decree requiring the executrix to make sale of the Chambersburg farm at public sale, if need be, I find considerable difficulty. The executrix has not made a sale within the period fixed by the will. It is plainly established by the evidence that her failure to- do so has been with the consent of the complainants. With respect to the Broad street property, they expressly admit that they have consented, to, and approved of, her not selling. With respect to the Chambersburg farm, it is plainly inferable that the complainants were unwilling to sell for less than a price at which the executrix was unable to obtain a purchaser at private sale, and, of course, the fixing of a price below which complainants would not have approved the sale, impliedly indicated their assent to the executrix withholding it from a forced or compulsory sale at public auction. The period within which the executrix was directed to sell had expired about a month before this bill was filed. It has not been suggested that she has thereby lost the power to sell which was conferred upon her by the will. Where the limitation upon the exercise of such a power is of the essence thereof, the power must be executed within the prescribed period, but where it is merely directory, the power may be executed after the expiration of the limited period. Marsh v. Love, 15 Stew. Eq. 112; Chasmar v. Bucken, 10 Stew. Eq. 415; 18 Am. & Eng. Encycl. L. 945.

The terms of this will do not indicate an intent to make the execution of the power compulsory within the period named. On the contrary, it is clear that, in this respect, the will is only directory, and I have no doubt that the executrix may now -exercise the power conferred upon her. Nor have I any doubt that this court, upon the application of those interested in the proceeds of the sale, may require the executrix to exercise that power and to make sale. Whether a party interested, who has acquiesced in the delay of the executrix, and has never demanded that the property should be put up to a forced sale, may file a bill against the executrix before request or demand upon her, may be doubted, and whether this court would compel -the executrix to make sale in a mode that might be detrimental to the interest of the parties concerned, may also be questioned. But, before this court should deal with that question at all, I think that the infant children of Mrs. Whitehead, who are entitled in remainder to one-half the proceeds after the expiration of her life, should be

these reasons I think the bill must be dismissed.


text:
    Charles Goldengay v. Charles H. Smith.
    [Filed November 12th, 1901.]
    1. A bill to enforce payment of a specified sum out of money claimed to be due from defendant to a person who had contracted with him to erect certain buildings, the complainant’s right to which sum was charged to have arisen from an fequitable assignment thereof by an order, drawn by the contractor, upon defendant requiring him to pay complainant that sum from money due or to become due to the contractor in accordance with the terms of the contract and duly presented to the defendant, must show that the contractor had so performed his contract that, but for the order, he could recover the sum from the defendant.
    2. If the bill is defective in that respect, the defect is sufficiently pointed out by a general demurrer for want of equity.
    3. Quaire. Whether such an order will operate as an equitable assignment of money due to the contractor not upon the contract, but by reason of the actual acceptance of the buildings by defendant; but, if so, the bill must charge that money had thus become due to the contractor which he could recover in assumpsit or on a quantum meruit.

    On demurrer to bill.

      Mr. Samuel F. Bigelow, for the defendant.

      Mr. Sylvester M. Gooley, for the complainant.
   Magie, Chancellor.

The demurrer to the bill in this cause is general, and states no other ground for demurrer than want of equity.

Under rule 209 this will constitute a sufficient specification of the ground of demurrer, when, upon looking at the bill, complainant’s right to relief is' doubtful or uncertain, but if. the defect of the bill is obscure or latent to such an extent that the court, on inspecting the bill, cannot readily discern it, it will be an insufficient statement of the ground of demurrer. Essex Paper Co. v. Greacen, 18 Stew. Eq. 504; Van Houten v. Van Winkle, 1 Dick. Ch. Rep. 380.

The purpose of the bill is to enforce a claim of complainant upon a fund alleged to be in the hands of defendant, to which complainant claims a right by an equitable assignment from a contractor to whom the defendant is indebted. The charges of the bill are that defendant contracted with one Lyons for work to be done and materials to be furnished in the erection of two buildings, and agreed that upon Lyons performing the contract according to its terms, defendant would pay him $1,900, in various payments as the work progressed, the last payment of $700 to be made when the buildings were completed and accepted. The payments were to be made on the written certificate of an architect that they had become due. The contract was duly filed in the clerk’s office. Complainant furnished Lyons materials which were used in the erection of the buildings, and on June 1st, 1899, Lyons gave an agent of complainant an order signed by Lyons and directed to defendant, ordering him to pay to complainant from money then due, or that should thereafter become due to Lyons in accordance with the terms of the contract, $400. The order was, on the same day, presented to defendant, who refused to accept or to pay the same. On June 26th, 1899, the architect certified, in writing, that the buildings were completed in accordance with the terms of the contract, and Smith thereupon accepted said buildings, and on the 27th day of June, 1899, the order was again presented to Smith, who refused to pay it. It is further charged that Smith has in his possession the sum of $700, the final payment upon the contract, or so much thereof as is sufficient to pay the $400 mentioned in said order.

To support the claim made in this bill, its charges must disclose an order drawn'upon a particular designated fund, which fund had become available.'so that, in the absence of an assignment, it could be recovered by the assignor. Bernz v. Marcus Sayre Co., 7 Dick. Ch. Rep. 275; Bradley Currier Co. v. Bernz, 10 Dick. Ch. Rep. 10.

The question then is, whether the bill discloses that at the time this order was given by Lyons to complainant, or at the time when it was presented to defendant and payment requested, Lyons, if be had not made the order, could have recovered the fund from the defendant. To support his claim in an action, Lyons would be obliged to prove the contract, its performance by him and the certificate by the architect, if by the contract that was made a condition precedent to payment. .

The bill discloses a contract to erect the buildings. It fails to aver that the buildings had been erected. The only statement in reference to the fact of the completion of the contract is that the architect certified that it had been completed, but this is, obviously, not a sufficient statement. If Lyons were suing defendant, he would be obliged to prove that the buildings were erected according to the terms of the contract, and it would not be sufficient to show that the architect had certified that the buildings were completed, unless the contract made the architect an arbiter whose adjudication would bind the parties. There is no allegation in the bill that the contract contained any such provision. The bill, therefore, is defective in respect to the disclosure of sufficient facts indicating Lyons’ right to recovery upon the contract.

The deficiency in the respect above pointed out is not made up by the statement in the bill that defendant had accepted the buildings. When a contract for building has not been so performed that a recovery can be had upon it, a recovery in assumpsit for work done and materials furnished in the erection will be permitted when the owner has actually accepted the building erected. Bozarth v. Dudley, 15 Vr. 312. But the allegation that the defendant had accepted the buildings does not require the inference that he thereby admitted that they had been completed according to the terms of the contract, and the order given by Lyons relates to moneys that should become due upon the performance of the contract.

If complainant intended to claim that such an order as was given by Lyons operated as an equitable assignment of any money which Lyons might become entitled to recover from defendant, upon a quantum meruit, for work done or materials furnished in the erection of the buildings, although not in accordance with the terms of the contract (as to which claim no opinion is intended to be expressed), the bill should have distinctly averred that Lyons had become entitled to such money.

The result is that the demurrer must be sustained.