author: Lewis, Y. G.

text:
    Lucene H. Johnson v. Abner T. Bowen, executor, et al.
    [Decided September 17th, 1915.]
    1. It is to be assumed that a testator intended to dispose of all his property.

      2. In the construction of a will the court must do everything in its power to discover the testator’s intentions, and to see that they are carried out, if possible.
    3. Testator, whose only heirs and next of kin were a sister, a brother, and several nephews and nieces, and the total value of whose real estate was $27,095, and the proceeds of whose personal property after the payment of his debts, an annuity, and specific bequests amounted to $25,500, who devised the “residue of my estate—.all monies and incomes,” to the establishment of a free hospital as a memorial gift to his father and mother, appointed a friend as his executor, and one as his executrix who was familiar with his plans, intended to leave the residue of both his real and personal property for such purpose, and did not limit the phrase “residue of my estate” merely to “monies and incomes,” and hence did not die intestate as tb his realty.
    4. The essential idea of a “charitable trust” is that its benefit is to be for the whole public, or some large class of the public as distinguished from private persons; the fact that the beneficiaries must be indefinite also distinguishes such a trust from a private trust.
    5. Charitable trusts are treated with much greater leniency by courts of equity than are private trusts, and such courts will stretch their powers to sustain and carry out a charitable trust.
    6. Any person capable of taking and holding real and personal property may be a trustee of a charitable trust, including aliens and married women.
    7. A devise of the residue of testator’s estate for the establishment of a free hospital as a memorial gift to a city, open to persons of any religious denomination whatsoever, and to all or any of the medical profession in good standing, sufficiently defined the purpose of the trust; and the testator’s mention that an executrix was familiar with his plan and would direct and arrange for its execution 'would not influence the court to refuse to execute it.

      8. A devise of the residue of an estate to establish a free hospital as a memorial gift to a city, appointing the testator’s friend as an executor, and appointing as-executrix one familiar with his plans under whose direction and arrangement with the mayor and aldermen of the city the hospital was to be established, vested in the executors and the municipal authorities discretion as to the arrangements for carrying out the charitable trust, so that it was not void for uncertainty .as to whether the title passed to the executors as trustees or to the city.
    9. In such devise the provision that the hospital was to be a free gift to the city under such direction ahd arrangement as the executors might make with the mayor and aldermen of the city was not in contravention of law.
    10. Under a will leaving the residue of an estate for the establishment of a free hospital as a memorial gift to a city, where the municipal authorities were ready to accept it, where the estate exceeded $50,000, and would have exceeded $60,000 except for a contest, and a small hospital, together with the land, might be established for $15,000, and an endowment of $20,000 could be advantageously used, the hospital would be established.

      11. Under a devise of the residue of an estate consisting of realty and personalty, directing the sale of part of the personalty when in the judgment of the executors it should be most beneficial to the estate; the proceeds to go to a hospital to be established by direction and arrangement of the executors and the municipal authorities, the court would appoint the executors and the mayor of the city as trustees to carry out the will.
    On pleadings and proofs.

      Mr. Q. Bartram Woodruff and Mr. Foster M. Yoorhees, for the complainant. ' '

      Messrs. McDermott & Enright, for the heirs and next of kin.

      Messrs. Gondict, Condict & Boa/rdman, Mr. Henry B. Johnson and Mr. Edward J. West, for the defendants executors and the city of Logansport.
   Lewis, Y. G.

George E. Johnson died in June, 1910. At that time he was living on his farm at Mountainside, Union county, New Jersey. On the 23d of December, 1909, he made and executed his will, which reads as follows;

“In the event of my demise before it is time for me to form my will in the regular way, I devise and decree that the residue of my estate—all monies and incomes—after the payment of my just and due debts and providing for such appropriations as herein mentioned shall go to the establishment of a hospital in the City of Logansport Indiana.
“In furtherance of these plans I appoint my friend Abner T. Bowen of Delphi Indiana—and New York, to be my executor—to be assisted by A Josephine Smith wife of Willis J. Smith of Philadelphia as executrix—Said A Josephine Smith being familiar with all my plans—
“I devise and desire this hospital to be a free gift to the City of Logansport, under such direction and arrangement as my executor, Abner T Bowen and my executrix A Josephine Smith may make with the Mayor and Aldermen of the City of Logansport.
“This hospital is designed to be a memorial in the City of Logansport to my father Israel Johnson and his beloved wife Mary—my Mother and to be known as the Israel and Mary Johnson hospital.
“Said hospital to be free to persons to any religious denominations what so ever and to all or any of the medical profession in good standing.
“I devise and desire that a sum shall be held by my executor and executrix sufficient to pay to Mrs. George W. Miles the sum of thirty three dollars per month.
“I devise that such sum shall be sent to Mrs. George W. Miles—the sister of my beloved wife (now deceased) on the first of each month at Weedsport, New York or at such place as she may designate said sum of thirty three dollars to be sent to her monthly so long as she shall live.
' “To Mrs A Josephine the Cousin and name sake of my wife (now deceased) I devise and bequeath all jewelry together with the personal effects of my wife clothing Books, all personal belongings—etc.
“I also devise that all furniture—and bricabrac—now in my house shall belong for ever and be owned by said Mrs A Josephine Smith— Such a part of it as she may wish to retain—the balance to go to said hospital—or sold as my executor and executrix may in their judgment seem best.
“I devise and decree that the indebtedness of the Mrs Smith Co as charged upon my books remain in tact until such a time as arrangement for payment can be made—
“I devise that the stock and implements belonging to my farm should be sold at auction to the highest bidders, the monies thereby obtained to go to the estate for the benefit of said hospital—
“Such sale to be made at a time when in the judgment of the executor and executrix—is most fitting for the benefit of the estate—”

The testator left no descendants, widow or parents. His heirs and next of kin were a sister, a brother, and a 'number of nephews and nieces.

His estate consisted of his country estate or farm, on which he resided at the time of his death, which consisted of about one hundred and seventy-one acres, from which he derived no income; an apartment-house in-New York, heavily mortgaged, which produced no income over operating expenses, interest and taxes; also considerable cash in bank; also in the Hartog Candy Company and other investments in personal securities. There were, in addition, the personal effects, furniture and stock on the farm on which he died. Besides these, he had contracts with the Equitable Life Assurance Society, which produced the income on which he lived. He had been connected with the Equitable Life Assurance Society by two agency contracts running from 1891 to 1906, under which he was entitled to receive commissions upon policies solicited by him for twenty years from the date of each policy. He had retired from business on December -31st, 1906, and the income upon which he was living at the time of his death consisted, for the most part, of the commissions ¡Daid, monthly, under these contracts. His other interests in personal securities and deposits produced an income of considerably less than one thousand dollars per annum.

The buildings on the farm have been burned since the testator’s death, and insurance has been collected, amounting to $8,022.48, the land itself being valued at $17,150. His real estate in New York has been foreclosed and has netted the estate $1,922.89. The total value of the real estate of which he died seized amounted to $27,095.37.

The proceeds of the personal property on hand (after the payment of the debts of the decedent; the annuity mentioned in the will, which has been paid up to April 1st, 1915; the delivery to the legatees named in the will of the jewelry, &c., specifically bequeathed; the payment of the costs and allowances of the contest of the will, and the transfer of inheritance tax from New York to New Jersey) amount to about $18,000, to which must be added payments from the Equitable Life Assurance Society, which will amount'to between $7,500 and $10,000, making a total of about $25,500.

The estate has been diminished since the decedent’s death by circumstances which he could not have foreseen, viz., the costs of the contest of his will by the heirs and next of kin, which said costs amounted to the sum of $10,900.

It is contended by the negative that the words in the first paragraph of the will, “all monies and income,” are words by way of explanation to show just what the testator meant to be included by the words “the residue of my estate,” and that, therefore, the testator died intestate as to his real estate, citing the case of Leigh v. Savidge, 14 N. J. Eq. 124.

The counsel for the positive have cited the case of Torrey v. Torrey, 70 N. J. Law 673, wherein Judge Dixon wrote the opinion for the court of errors and appeals, in which the court said:

“But it is argued that these considerations are not sufficient to overcome a certain legal presumption against disinheriting the heir. That presumption originated in an artificial system which does not exist among us, a system designed to, avoid the division of landed estates. So far as it accords with the natural impulse to provide for one’s family and kindred, it still deserves weight.”

Again, in the same case, the court saj's:

“hr attempting to interpret a will, the first suggestion naturally arising is. that the testator intended to dispose thereby of all his property.”

A careful reading of this will has satisfied me that the testator intended to leave the residue of his estate, including both real property and personal, for the,purpose of establishing a hospital in the city of Logansport, Indiana, to be a memorial to his father and mother. The will was not drawn up by a lawyer,' and the testator was a sick man at the time he drew it up'. The language of the will shows very clearly what his intentions were, although he evidently did not understand the exact meaning of all the legal terms that lie used. But that is entirely unimportant. His intentions are all important, and the court must do everything in its power to discover them and see that they are carried out, if it be possible. The testator clearly attached no particular meaning to dashes. In the ninth paragraph he uses a dash five times, and this paragraph shows very clearly that his knowledge of the art of punctuation was extremely limited. He apparently knew that nowadays punctuation marks are in use for the purpose of expressing ideas effectively. Punctuation is an important aid to grammar, though not indispensable. The ancients had no punctuation whatever. It will be noted that the dash was the favorite punctuation mark of the testator, and he used it constantly in place of commas.

I am entirely satisfied, therefore, that the testator did not intend to limit the meaning of the phrase “residue of my estate”' to merely “monies and income.” The will proves, very clearly,, that the testator very greatly preferred the use of dashes to commas, and for that reason he used them. As the court is seeking the testator’s intention, in endeavoring to arrive at the meaning of the testator on a question of the meaning of punctuation marks, I think it must be influenced in ascertaining his intent by the meaning the testator evidently gave to the same punctuation marks in the other paragraphs of the will.

The next question is: Is the purpose of the trust legally ascertained? This is a charitable trust, and the essential idea of a charitable trust is, that the benefit of the trust is to be for the whole public or some large class of the public as distinguished from private persons. The fact that the beneficiaries must be indefinite distinguishes the charitable trust sharply from the private trust; and charitable trusts are treated with much greater leniency by the courts of equity than are private trusts; and so friendly is equity to the charitable trust, that it will stretch its powers to sustain and carry out a charitable trust. Any person capable of taking and holding real and personal property may be a trustee, including aliens and married women, and a statute requiring trustees to be residents of the state is unconstitutional. In Smith v. Smith, 54 N. J. Eq. 9, the court says:

“Suppose a purpose to create a charity appears—not generally, but of a limited and special character—and the will fails to disclose the limitation, can this court, in defiance of the plain requirement of the statute that the will shall be in writing, add to it verbal expressions of the testator which will supply and define the limitation ? And is the case made stronger by the testator’s direction that the reference shall be had to these expressions ? I do not perceive any reason which will justify such action. In favor of a charity clearly indicated, the court will sb interpret general terms of description in the will creating it as to render the plain purpose capable of enforcement; but where the will fails to indicate what the purpose is, the court will not disregard a statute to supply that which the will omits. * * * Here is a trust for a purpose which the testator has failed legally, at least, to define. The court cannot ascertain the purpose, and, therefore, it cannot execute the trust.”

In the case just cited, the testator clearly stated that he had certain plans on which the school was to be conducted, and it was very clear that he did not intend that the school should be conducted on any other plans than those he had in his mind, and as there was no legal way of finding out what those plans were, the court held that it could not execute the trust.

In this case, however, the purpose of the trust is legally defined. The testator, it is true, mentions the fact that the executrix is familiar with-all his. plans. That surely will not influence the court to refuse to execute the trust. Doubtless, he thought it would be a good thing to appoint her, not to interfere with his clearly-defined plans, but to do what she could to help to carry them out.

It is also contended by the negative that the provision for the establishment of a hospital in the city of Logansport is void for uncertainty, the uncertainty referred to being whether the legal title to the residuary estate passes to the executors as trustees to found a hospital and turn it over to the city, or whether it passes to the city itself; and in case the-legal title of the residuary estate is held to vest in the executors as trustees, whether they have a power of sale of the real estate which the condition of the estate does not require to be sold to pay debts.

I think the provisions of the will come within the limits of certainty required of charitable trusts. The testator vests his executors and the municipal authorities of Logansport with discretion as to arrangements to be made to carry out his charitable intent, and this is sufficient. Jones v. Watford, 62 N. J. Eq. 339; Miller v. Porter, 53 Pa. 292; 6 Cyc. L. & Pr. 950; 3 Pom. Eq. Jur. (3d ed.) § 1025; Sherman v. Con'g Home, 176 Mass. 349; Gillan v. Gillan, 1 L. R. Ir. 114; Ould v. Washington Hospital, 95 U. S. 303.

The next contention’is, that the provision

“to be a free gift to the City of Logansport, under such direction and arrangement as my executor, Abner T. Bowen and my executrix A. Josephine Smith may make with the Mayor and Alderman of the City of Logansport”

is in contravention of law.

I cannot uphold that-1 contention. Thomson v. Norris, 20 N. J. Eq. 489; Hesketh v. Murphy, 36 N. J. Eq. 304; 3 Pom. Eq. Jur. § 1025.

The next question is, whether the will of the testator, as to establishing a hospital, can be carried out.

The estate exceeds $50,000, and would have exceeded $60,000 except for the contest already mentioned. The complainant has shown that a perfectly appointed and amply endowed hospital sufficient for the needs of Logansport would be very expensive; and that is not disputed. But the will does not say that the hospital is to be sufficient to provide for all the citj^s needs. A small hospital could be built, according to the testimony, the building costing not more than $5,000, and suitable land can be bought for about $1,500 or $2,000 an acre, and it was satisfactorily shown that an investment of $15,000 in a small hospital building, and a $20,000 endowment, could be used to advantage, and that a gift of $25,000 would justify the building of a hospital. T.he mayor of the city of Logansport says that the city is ready to accept the provisions of the will. There was no occasion for the city to employ counsel on the contest, as the executors defended the will and sustained it.

I shall hold that the will of the testator as to the establishment of the hosjoital can be carried out.

In regard to the question whether the executor and executrix are seized of the whole estate in fee-simple, with power to sell and convey the real and personal estate, reduce the estate to money, and after paying or providing for the specific legacies and the annuity, to apply the net proceeds to the establishment of the hospital—I am in considerable doubt whether it will not be necessary for the court to appoint trustees. The testator, in the eleventh joaragraph of the will, says:

“I devise that the stock and implements belonging to my farm should be sold at auction to the highest bidders, the monies thereby obtained to-go to the estate for the benefit of said hospital—
“Such sale to be made at a time when in the judgment of the executor and. executrix is most fitting for the benefit of the estate—”

In the ninth paragraph of the will he makes a somewhat similar provision, all referring to personal property. The question arises, why he did not make a similar provision for the sale of his real estate. It is very singular. He was a sick man, and,therefore, it may be assumed that his mind was not as active as it would have been otherwise. He evidently knew very little-about legal matters, and all he cared about was to have the hospital established according to the terms of his will, and as long as that was done, that was all he cared about. I think his intention was to have his executors attend to all the details and help the matter along in every way they could, taking it for granted that the municipal authorities of the city of Logansport would also do their part. I, therefore, think that the court should appoint trustees for the purpose of carrying out the will, and it seems to me that the executors and the mayor of Logansport, Indiana, should be appointed as such trustees.

I shall so advise.


source: Caselaw Access Project

author: Lewis, V. C.

license: Public Domain

text:
    Ellen E. Harrigan v. Sinclair & Valentine Company.
    [Decided October 19th, 1915.]
    An ink factory emitting noxious and unwholesome fumes, causing irritation of the throat and sometimes vomiting spells, and rendering living in the vicinity unbearable, in respect to physical comfort, and destructive to health, in view of the situation of the dwelling of complainant along the palisades, at the foot of which the factory was located, will be enjoined ás a nuisance.

      Mr. William E. Ellis and Mr. William B. Gourley, for the complainant.

      Mr. Robert II. McCarter and Mr. George W. C. McCarter, for the defendant.
   Lewis, V. C.

^orally).

Counsel for the defendant having stated that they do not desire an appeal, I will briefly indicate my views so that there may be no further delay:

Tbe application is that an injunction may issue restraining the Sinclair & Valentine Company, a corporation doing an ink business in the borough of Edgewater, from maintaining a nuisance upon its premises. The complainants, Mrs. Ellen E. Harrigan and a large number of the residents of the place, property owners, allege that there issue from the defendant’s property noxious and unwholesome fumes which render living in the vicinity of it not only unbearable, so far as physical comfort goes, but destructive to health. A very large number of witnesses have appeared in support of the complainant. They uniformly testified that they had detected the fumes almost daily and related the effect it had upon them. Almost invariably these witnesses stated that they had suffered from irritation of the throat while the fumes were passing through the air, and in some cases it resulted in violent vomiting spells. Many dates have been given upon which the fumes were seen, and an attempt has been made by the defendant corporation to show that at some of these times they were not operating the factory. While there are some slight contradictions of the witnesses of the complainant, yet on this point I am satisfied, beyond peradventure, that on most of the dates they enumerated seeing or feeling the effect of the fumes, that the conditions prevailed as described by them. Complaints have been made by the board of health, and the corporation has been notified to stop the nuisance, and it has also been, indicted by the Bergen county grand jury for maintaining a nuisance upon its premises. There is no doubt in my mind that the defendant made several attempts to stop the nuisance, and, in fact, the testimony of some of its experts, is that with the plant as now constructed fumes as described by the complainant and her witnesses could not come from it. Experts of the complainant, who visited the plant since the improvements, however, state that they still find in the atmosphere the presence of these noxious fumes. I cannot believe that the large number of witnesses of the complainant willfully misstated facts to the court in this issue. They all say they have noticed the fumes recently and since the improvements. The fact that the fumes are not noticed by some of the neighbors does not prove that they are not a nuisance to others. Many of the complainant’s witnesses before me have been long residents of the borough of Edgewater, and some for a considerable period before the factory of the Sinclair & Valentine Company -was located there. The topographical conditions at Edgewater must be considered in dealing with this ease. The dwellings of the complainant, and of the larger part of the population of Edgewater, are situated along the side of the palisades, some distance up the mountainside. The place selected by the Sinclair & Valentine Company for its factory site is at the base of these cliffs. In locating here they must have had in view the fact that when the prevailing wind was favorable that any odor or fumes from their ground would necessarily affect the complainants in their homes.

In a long'line of cases this court has dealt with situations similar to the one disclosed by the evidence in this case. Recently, Chancellor Walker, in Kroecker v. Camden Coke Co., 82 N. J. Eq. 373, and Vice-Chancellor Stevens, in the Board of Health of Irvington v. Schmidt, 83 N. J. Eq. 35, have expressed views which I shall follow now.

It seems to me clear that upon the facts in this case the court must grant the relief desired by the complainant.


author: Lewis, Y. C.

text:
    Viola Attwood v. Arthur Attwood.
    [Decided June 3d, 1913.]
    Evidence Held insufficient to sustain a bill for maintenance.
    On bill and answer.

      Messrs. Hutchinson & Hutchinson, for the complainant.

      Mr. Envin E. Marshall, for the defendant.
   Lewis, Y. C.

This is a suit for maintenance. The allegation of the complainant is, that the defendant failed to properly provide for her, and upon certain occasions treated her in a crue] and unmanly manner. It does not appear from the testimony that the defendant had had habits or was extravagant in his expenditures. He was in the receipt of a small salary as stenographer, and the production of the bills for household expenses and other necessary charges in the maintenance of a home, indicates to the court’s mind that he used pretty nearly all his salary for those purposes. There is one charge made by the wife that while she was on a trip' to Atlantic City with her husband, and upon subsequent occasion to this trip, he endeavored to have unnatural relations with her; but the husband denies this absolutely; and the postal communications of the wife to, and conversations with, the relatives of the husband, who appeared as witnesses in the cause, show that the relationship existing between them at this time was apparently quite satisfactory.

The character of both thesq people seems to be above reproach; and there is indicated by all the testimony adduced a great fondness on the part of the husband for his wife. His tastes, which appear to have been proper, such as a desire to read at night instead of going out to public entertainments, arc, of course, not grounds for invoking the aid of this court in the premises. '

The failure on the part of the husband to properly provide for the approaching birth of the child is urged by the petitioner to strengthen her charge that he never properly provided for her; but it appears from the testimony that the child was born 'some time before the day expected, and the court may infer from this that the husband was surprised.

Lairing all the circumstances into consideration in this case, and the testimony, I am not satisfied that the. defendant is guilty of the charges made by the petitioner, and shall dismiss her bill for maintenance.


author: Backes, V. C.

text:
    Atlee Douredoure et al. v. Alfred Humbert and Roy Humbert, trading as Alfred Humbert & Son et al.
    [Submitted July 15th, 1915.
    Decided October 6th, 1915.]
    1. An unrecorded declaration of trust of lands is void as against a subsequent mortgage given by the trustee'to a bona fide mortgagee for a valuable consideration, not having notice thereof, whose mortgage was first recorded.
    2. Where a bond and mortgage are given in settlement of a debt, and by the novation the creditor waives his right of action in tort against the debtor and extends the time of payment of the debt, he is entitled to the status of a bona fide mortgagee for a valuable consideration, and the lien of his recorded mortgage is entitled to priority over an unrecorded declaration of trust, of which he had no notice.

      Messrs. Bourgeois & Coulomb, for the complainants.

      Messrs. Godfrey, Giddings & Read, for the defendants.
   Backes, V. C.

In 1902 the Douredoures and the defendant Lingg purchased a tract of land in Atlantic City, for $-1,000, subject to a mortgage of $6,000. The Douredoures paid two-thirds and Lingg one-third of the consideration price. Title was taken in the name of Lingg. The riparian right was acquired from the state in the name of Lingg, the consideration for which was paid by the parties in the same, proportion. At the time the land was bought, Lingg executed to the Douredoures a declaration that he held the title to the extent of two-thirds in trust for them. It was not recorded until shortly before this bill was filed. In 1909 the Douredoures loaned Lingg $2,000, and he stipulated, in writing,, endorsed upon the declaration of trust, that the repayment should be secured by his interest in the real estate described therein. The mortgage of $6,000 on the property, when it was purchased, had been reduced to $3,000, and this, in 1912, Lingg paid off and caused to be canceled. At the same time he negotiated another mortgage of $5,000 upon the land and pocketed the difference. In 1913 he executed to the defendants Humbert & Son a mortgage to secure his bond for the sum of $2,373.29, payable in two years, with interest at five and four-tenths per cent., payable semi-annually. The mortgage was duly recorded. Lingg defaulted in tire payment of interest and the Humberts started foreclosure proceedings in this court. After the final decree was entered and execution issued and delivered to the sheriff of Atlantic county, with instructions to advertise the premises for sale, the complainants recorded their declaration of trust, and filed this bill (March 2d, 1915), alleging that the Humbert mortgage was taken with notice of their interest in the land and was given to secure a pre-existing debt, and that, therefore, it was subordínale to their equities, and they pray that it be restricted to the one-third interest of Lingg in the premises, and upon this interest that it be declared subject to the complainant’s equitable lien arising out of the loan of $2,000, and also subject to their equitable lien on this interest, for such loss as they may have sustained by reason of the $5,000 mortgage placed upon the entire tract by Lingg. The bill further prays an injunction qgainst the sheriff, and an accounting against Lingg, and that he be compelled to execute a bond and mortgage upon his estate in the premises, to the complainants, for the amount found to-be due to them. ■

The mischief in this case was made possible by the neglect of the complainants to record their deed of trust. The twenty-first section of our Conveyance act (Comp. Stat. p. 1541) provides for the recording of such documents .for the purpose of giving notice to the world of their existence; and section 54 declares that—•

“Every deed or instrument of the nature or description set forth in the twenty-first section of this act shall, until duly recorded or lodged for. record in the said clerk’s office, be void and of no effect against subsequent judgment creditors without notice, and against all subsequent dona fide purchasers and mortgagees for valuable consideration, not having notice thereof, whose deed or mortgage shall have been first duly recorded.”

That the Humberts are Iona fide mortgagees, and that they took their mortgage without notice of the complainants’ equities, and that it was first duly recorded, is not disputed. The debatable question is, was the mortgage given for a “valuable consideration,” within the meaning of the statute, for, if not, then, although it was taken without notice and has priority of record, it cannot displace the complainants’ superior equitable title and liens which they had previously acquired for value then moving. Such equities • are superior to a mortgage given to secure simply a prior debt, without any extension of time or surrender of any right, for the reason that the mortgagee parted with nothing on the strength of it. A subsequent legal title to land, in order to prevail over a prior equitable title, must not only have been acquired without notice of the prior equity, but must be founded upon a consideration of value moving presently from the grantee. Martin v. Bowen, 51 N. J. Eq. 452.

The facts attending the taking of the mortgage are these: The Humberts were dealers in diamonds in Philadelphia. They had consigned to Lingg on memoranda certain stones, which he was to sell and for which he was to account. Having a sale for a diamond which was in Lingg’s possession, they sought him for the purpose of getting it, and were informed that he had sold all of the goods which had been confided to him. Restitution, or payment of the value, of the property consigned, was demanded, and Lingg, who was then seriously ill, abed, agreed, through his son, who represented him, to give the bond and mortgage in settlement. The bond and mortgage were taken in payment and satisfaction of their claim, as it then stood, and the account was closed on their books, the Humberts aver, and the circumstances support their assertions. Humbert, Sr., was familiar with the land to be mortgaged and its value. About twelve years ago Lingg had shown it to him; represented himself to be the owner and that he had had an offer for it of $18,-000, but that he valued it at $25,000. Before accepting the mortgage, Humbert, Sr., submitted it to the West Jersey Title Company for examination as to title and encumbrances. The search disclosed the fee in Lingg for eleven years and upwards, and the exercise of ownership and control of the title during that time, by a sale and conveyance in 1909 to the city of Atlantic City of a piece of the land for the purpose of widening Albany street, for the consideration of $8,450 (of which the complainants received their share); the cancellation of the $6,000 mortgage already referred to, and the execution in 1912 of the $5,000 mortgage to one Alice I£. Lineau. Humbert even went further and had the title of his mortgage insured by the title compan]'. (This'does not appear in the record, but was stated at the hearing by his counsel and admitted sub sileniio.) The care and precaution exercised to secure an unimpeachable lien, strongly fortifies and makes much for the insistence that the bond and mortgage were taken in satisfaction of the then right of action. But, the taking of a bond secured by mortgage, in settlement of an existing debt, without more, does not create the holder a purchaser for value, for the reason that in the merger, the form of the debt only, and not the substance, is changed—it is the same debt—and under the settled rule a mortgage taken for a precedent debt does not constitute the mortgagee a purchaser for value. Reeves v. Evans, 34 Atl. Rep. 477; Martin v. Bowen, supra. If, however, by the novation, a mortgagee-creditor parts with anything of value, or changes his position for the worse, it entitles him to the status of a bona fide purchaser for value. Allaire v. Hartshorne, 21 N. J. Law 665; Mingus v. Condit, 23 N. J. Eq. 313. It seems to me it cannot be questioned that the Humberts did both. They waived the tort and the right to proceed against the body of Lingg, for his malfeasance, and accepted his contract; they extended the time for the payment of the debt for two years; their forbearance was upon the payment of interest at a less than legal rate; and they barred themselves from proceeding personally against their debtor until after exhausting their remedy upon the mortgage. Comp. Stat. p. 3421; Price v. Gray, 34 Atl. Rep. 678. The giving of further time for the payment of an existing- debt, by a valid agreemeht, for any period however short, though it be for a day only, is a valuable consideration, and is sufficient to support a mortgage, or a conveyance, as a purchase for a valuable consideration. Jonas Mort. (6th ad.) § 461.

The bill will be dismissed as against tire defendants Humbert, with costs. As- against Lingg, the complainants are entitled to the relief they seek.


text:
    Bosch Magneto Company v. Samuel W. Rushmore.
    [ Submitted July 16th, 1915.
    Decided October 13th, 1915.]
    1. On a bill to specifically perform an agreement to give an indemnity bond, equity will not decide the extent of the indemnity, but will enforce the agreement in its own language and leave it to the law courts to pass upon, in an action for a breach of condition.
    2. An action at law for damages for a failure to give an indemnity bond, does not- furnish such complete and adequate remedy as will bar relief by specific performance.
    3. Equity has jurisdiction to specifically enforce an agreement to give a bond with surety for the faithful performance of a contract.
    4. Hardships fairly and voluntarily assumed as a part of the contract sought to be enforced, cannot prevail to stay a specific performance thereof.
    On final hearing on bill and answer.

      Messrs. McCarter & English, for the complainant.

      Messrs. Vroom, Dickinson & Bodine, Mr. George C. Dean and Mr. Irving M. Obreight, for the defendant.
   Backes, V. C.

This is a bill to specifically enforce.an agreement to give a bond with surety "for the faithful performance of a contract. The complainant purchased from the defendant his plant known as the Bushmore Dynamo Works at Plainfield, including patents and patent rights, for the manufacture of automobile dynamos, engine-starters, &c., for $750,000, payable in three installments of $250,000. Before the contract of sale was entered into, the Bijur Motor and Lighting Company, the patentee of a starter, notified the complainant, in writing, that the patents of the defendant on a starter infringed the Bijur company patent and threatened suit. To protect the complainant against loss, it was stipulated in the agreement of sale, dated May 20th, 1914, as follows:

“It is further understood by and between the parties hereto that the party of the first part shall defend and save harmless to the 'extent of not more than one hundred thousand dollars ($100,000) the party of the second part from any suit that may be brought against the party of the second part within two years from this date by the Bijur Motor Lighting Company, for alleged infringement of Bijur patent No. 1,095,696 as threatened in a letter from the Bijur Motor Lighting Company’s attorney, addressed to the party of the second part, dated May 8th, 1914; such liability not to extend beyond two years from this date.
“It is further understood and agreed by and between the parties hereto that when the full amount of the purchase-price shall have been paid as (hereinafter mentioned, the party of the first part shall deliver to the party of the second part a bond of a responsible surety company of the amount of $100,000 to guarantee the faithful performance of his part of the defence of the above-mentioned threatened suit; that one of the conditions of said bond shall be that if within two years from May 20th, 1914, the Bijur patent is declared by any competent court to be invalid, or not infringed by the starter covered by the Bushmore patent above mentioned, or if the party of the second part herein shall become satisfied that there is no infringement of the Bijur patent by the said Bush-more patent, then the above-mentioned bond is to become null and void; that said bond shall contain a further condition that in the event of any such suit being threatened or commenced, the party of the second part shall, within two days from receipt of any such information, summons or other paper-writing of any kind, deliver same to the party of the first part, and that the party of the second part will give all assistance in his power in defending such suits or resisting such claim and upon failure to do so said bond shall be null and void.”

The contract of sale has been executed in all its parts, with the exception of the giving of the bond. The defendant tendered a bond in the sum agreed upon, of a responsible surety company, conditioned that he will “defend the suit referred to, if instituted, and shall pay all fees of attorneys engaged by him and court costs in connection therewith.” This the complainant rejected, claiming that it is entitled to one conditioned that the defendant will defend and save harmless the complainant from any suit that may be brought against it by the Bijur company for.the alleged infringement, and it now seeks to compel the execution of such a bond.

The principal dispute between the parties relates to the meaning to be given to the words “to guarantee the faithful performance of his part of the defence of the above-threatened suit,” as set forth in the second paragraph above quoted, and both parties ask that this language be construed. If it were within the province of the court to decide the issue, I would be inclined to the view that it was the agreement of the parties that a bond was to be given to guarantee all of the undertakings of the defendant, as set forth in the first paragraph, and not merely to defend and pay the costs and expenses of the threatened litigation. It seems to me that the word “defence” has a broader significance than that attributed to it by the defendant, and that .it was used in the sense of further protecting the complainant from that possible loss which the defendant in 'the first paragraph agreed personally to indemnify it against. Upon this question the court is not, however, required to render judgment. The parties have made their own agreement, and it is not for a court of equity to enlarge or contract its terms, as might be the case if the contention of either party were acceded to. “Equity may compel .parties to perform their agreements when fairly entered into, according to their terms; but it has no power to make agreements for parties and then compel them to execute the same.” Hunt v. Rousmaniere’s Administrators, 1 Pet. (U. S.) 1. So, all that this court will do is to compel the giving of the bond in the terms employed by the contracting parties, and leave the extent of the liability thereunder for the law courts to pass upon in an action for a breach of condition. Gough v. Williamson, 62 N. J. Eq. 526.

But, the defendant urges that he ought not to be compelled to live up to his bargain, because the complainant has a complete and adequate remedy at law, and that, therefore, the extraordinary relief of specific performance should not be decreed. It is true, as he contends, that there is no allegation in the bill pf the defendant's financial irresponsibility, and it may be assumed that, at this time, he is able to respond for any damages that might be recovered in a suit on the Bijur patent. This, though, is not enough to relieve him, for the clear understanding of the parties was that for its indemnity the complainant was not to rely solely upon the personal assurances of the defeñdant, but that it was to have more in the shape of a pledge of a responsible surety for the performance of the obligation. When the contract was made, the complainant wanted to withhold $100,-000 of the consideration price, as indemnity, and upon objection, waived it and agreed to take in lieu the security of a bonding company. This security the complainant paid for and there is no good reason advanced why it should be withheld. The logic of Chancellor Bloomfield, in Dean v. Anderson, reported in 34 N. J. Eq. 496, although that case involved a promise to give a mortgage upon land to secure a debt, is illustrative. He says: “A party requires security by mortgage because he is unwilling to trust to the personal responsibility of the person with whom he agrees, and to refuse him a remedy against the estate agreed to be mortgaged, is to deprive him of the principal security on which he relied, and to leave him to a remedy which he was unwilling to trust to, and which, in most instances, would not answer the justice of the case." In Pember v. Mathers, 1 Brown Ch. 44, Lord Thurlow decreed the specific performance of an agreement of an assignee of a lease to indemnify his assignor, the lessee, against all rents and to execute a bond for securing such indemnity. The declaration of "Vice-Chancellor Pitney, in Feigenspan v. Nizolek, 71 N. J. Eq. 382, is, it appears to me, a complete answer to the position taken by the defendant. He says: “The policy of the law is that business men should keep their contracts, and not turn the contractee over to the uncertain remedy of an action at law for damages for * * * non-performance. It is, in my judgment, one of the most important functions of courts of equity to prevent injuries which result in damages, in all instances where it is practicable to do so, and the tendency is toward extending the protecting power of the court to cases not formerly thought to be sufficient to invoke its action. For myself, I think this tendency is -wholesome.” “Specific performance of agreements,” said Chief-Justice Fuller, in Union Pacific Railway Co. v. Chicago, &c., Railway Co., 163 U. S. 564, “prevents the intolerable travesty of justice involved in permitting parties to refuse performance of their contracts at pleasure by electing to pay damages for the breach.” Now, in the ease at bar, it is obvious that no more than nominal damages could be recovered at law for the failure to furnish the bond, and if judgment should be recovered against the complainant, and perchance the defendant should become reduced in circumstances, the remedy at law would he manifestly inadequate.

The next defence set up is that the court should not exercise its jurisdiction, because the agreement depends for its accomplishment upon the consent of a surety company, not a party to the contract or the suit. In support of this, the cases of Public Service Corporation v. Hackensack Meadows Co., 72 N. J. Eq. 285, and Clark v. New Jersey Postal Telegraph Co., 82 N. J. Eq. 15, are cited. Neither of these cases is in point. In the first named, Vice-Chancellor Learning refused a decree to compel the vendor to convey a certain piece of land, of which he was not the owner, even though it appeared that he could purchase it at a reasonable price, and he puts his judgment upon the ground of want of inherent coercive force of the decree, the absence of mutuality of obligation, and mutual relationship, which,the respective parties bear to the subject-matter of the contract. And, in the latter case, Chancellor Walker denied relief for want of ability of the defendant to carry out the decree. The features which characterized those cases are not present here. It was well known to the parties at the time they contracted, and it is common knowledge that bonds of the kind to be given may be purchased in the open market from scores of reputable bonding companies, and, in fact, in this case, the defendant furnished such a bond. Then, why should he be permitted to escape the performance of his contract? This is not a-ease where the performance of the contract depends upon the acquiescence of a particular third person, for in that case the court might decline to exercise its power, but one in which the enforcement of the decree operates upon a defendant capable of complying with its mandate. Sir John Leach, in Walker v. Barnes, 3 Mad. 247, points out the distinction. In that case, the vendor of land lost his title deeds and agreed io give the purchaser real security against loss. On a bill for specific performance of the agreement, the vendor set up that he had not sufficient real estate, and tendered ample personal security, but the vice-chancellor held that: “If a man agrees to give a real security for a demand, he may be obliged specifically to perform his agreement, though he had no real estate, because he may procure it. It might be different where he agrees to give a security on an estate called A, of which he is not the owner, because he may be unable to procure that very estate; but where, as in this case, he agrees to give a real security generally, he has all the world before him, and must therefore purchase an estate to enable him to perform his agreement. In the common case of a husband on marriage, covenanting to settle a real estate of a particular value on his wife and the issue of the marriage, if the husband has no real estate to settle, he is compellable to procure one.”

The next point made by the defendant is that relief should be denied the complainant, because the giving of a bond would work a hardship to the defendant, in that he would be obliged to deposit with the surety company $100,000 in cash, or securities of that amount, or more. The reply to this is that this is a burden which the defendant assumed when he made his contract. Nor do I perceive that any great harm or embarrassment will befall him if he should be compelled to deposit with the bonding •company collateral securities. He would not be deprived of their increments. Hardships, fairly and voluntarily assumed as a part of the contract which is sought to be enforced, cannot prevail to stay a specific performance, and this is emphatically laid down by the court of errors and appeals in the case of Marvel v. Jonah, 83 N. J. Eq. 295, in reversing the decree of this court, refusing to perform a negative covenant not to practice as a physician for a certain time, within a given district, Chief-Justice ,Cummere, in delivering the opinion of the court, saying: “But even if the deprivation should be as complete as the learned vice-chancellor seems to think it would, we see no injustice in compelling Dr. Jonah to live up to the covenant solemnly entered into by him, and which was one of the canses inducing Dr. Marvel to admit him into partnership, and to a share in the benefits of the practice which he had built up. The fact that the performance of such a promise involves personal hardship, or pecuniary loss to the promisor, affords no justification for non-performance. If the law recognized such an excuse for the breach of a contract of this kind, very few cases would be found in the books where the performance of such negative covenants had been compelled by injunction; for, speaking generally, it is only where the performance of the covenant is disadvantageous to the covenantor that he refuses to perform it, and renders it necessary for the party for whose benefit it is made to apply to the courts for relief.” See, also, Chubb v. Peckham, 13 N. J. Eq. 207.

Let a decree be entered directing the defendant to execute a bond according to the terms of the contract, with a condition in substantial compliance with its language. Inasmuch as nearly three-quarters of the period of indemnity has elapsed, and that the bringing of the Bijur infringement suit within that period is merely a possibility, the decree may provide that the bond be given within one day from the commencement of the suit. This may relieve the defendant from the payment of premium and the pledging of securities, and is'fair and equitable under the circumstances.

The complainant is entitled to costs.


author: Stevenson, Vice-Ordinary.

text:
    Lillian R. Shotwell, appellant, v. Laura H. Shotwell, respondent.
    [Decided May 5th, 1915.]
    1. Upon appeal -from the decree of the orphans court, reversing that of a surrogate admitting a will to probate, the original jurisdiction of the prerogative court is invoked, and the question to be decided is whether the paper-writing should be admitted to probate, not whether there was error below.

      2. One claiming the invalidity of an alleged will on the ground of undue influence or fraud in probate proceedings has the burden to establish the fact.
    3. While a testator may make an inofficious will, which cannot be set aside because court or jury may consider it contrary to sentiments of natural affection or duty, nevertheless its character is evidence bearing upon the question of undue influence.
    4. In proceedings to probate a will, evidence Held insufficient to establish undue influence exerted by an elder daughter.
    5. Where, on appeal to the orphans court from probate of a will by the surrogate, a decree denying its validity, which was exhibited to counsel for the proponent, awarded the contestant costs, she not objecting thereto, and making no move to prevent the decree from being carried out and the checks of the administrator pendente lite from being paid out of the funds of the estate as provided in the decree, on appeal to the prerogative court from such decree of the orphans court it being reversed, application of proponent’s counsel for a counsel fee and costs will be denied.
    Oil appeal from the decree of tire Sussex county orphans court, entered upon the verdict of a jury, adjudicating that the paper purporting to be the last will and testament of Emma Shotwell, deceased, was the result of undue influence, imposition and fraud, and was not the last will and testament of said Emma Shotwell.

      Mr. Henry W. Runyon, for the appellant.

      Mr. Edward L. Price, for the respondent.
   Stevenson, Vice-Ordinary.

Common proof was made of the paper-writing in question before the surrogate of Sussex county, and the same was admitted to probate as the will of Emma Shotwell, deceased. The respondent, Laura H. Shotwell, thereupon appealed to the orphans court and obtained from that court under the statute an order sending the cause for trial to the Sussex circuit court upon questions stated. The respondent attacked the will upon three grounds, viz., inadequate execution of the instrument, testamentary incapacity of Emma Shotwell, the testatrix, and undue influence, imposition or fraud practiced by the appellant in this court, Lillian R. Shotwell. The evidence established the proper execution of the will as required by the law of New Jersey, and further established that the testatrix was of sound and disposing mind, and the verdict or deliverance of the jury was so made in accordance with the direction of Mr. Justice Black, who tried the case. The jury, however, decided against tire will on the ground that it was “the result of undue influence, imposition or fraud upon the said Emma Shotwell, deceased, by Lillian B. Shotwell, sole beneficiary under said alleged will,” and the decree of the Sussex county orphans court, being necessarily based upon and in accord with the finding of the jury, reversed the decree of the surrogate admitting the will to probate and ordered that the letters testamentary issued thereon be revoked.

This decree of tire Sussex orphans court is the subject-matter of the appeal to this court, and it is well settled that on such appeal the original jurisdiction of the court is invoked, and the matter to be decided is not whether any error was committed by the court or jury below, but whether this paper-writing should be admitted to probate as the decedent’s last will and testament. Sanderson v. Sanderson, 52 N. J. Eq. 244, 245; Rusling v. Rusling, 36 N. J. Eq. 603; Kayhart v. Whitehead, 77 N. J. Eq. 12.

In the exercise of the power of the court to take additional testimony, a letter of comparatively little importance was put in evidence, but with this exception, both sides apparently elected to try, and in fact did try, the case before this court upon the evidence which had been taken at jury trial in the Sussex circuit court.

The evidence, in my judgment, does not warrant the inference that the will in question was the “result of undue influence, imposition or fraud upon the said Emma Shotwell, deceased, by Lillie E. Shotwell.”

Of course, at the start the burden is upon the respondent to establish the fact of undue influence or fraud. The will was drawn by a lawyer, in the city of New York, who was a stranger to the decedent and her daughter Lillian. All the details necessary for the legal execution of the instrument were accurately attended to. If we base the strongest possible presumption upon the fact that at the time the will was made the decedent was residing with her daughter Lillian, the sole beneficiary named in the will, I think that the evidence more than overcomes any such presumption, unless in all cases where a parent resides with a son or daughter the parent’s will in favor of such son or daughter must be set aside unless the beneficiary can establish an almost impossible negative by other evidence than his or her own oath. In this case the appellant positively denies under oath that she influenced or persuaded her mother, or had anything to do with making the will, and there is no evidence which contradicts her.

The evidence having been taken before a jury is not as ample and 'satisfactory as it probably would have been if it had been taken in a more leisurely manner and with opportunity on the part of counsel to supply omissions.

I shall not undertake in this memorandum to make an elaborate discussion of the evidence bearing upon this question of undue influence. It may be noted here that while the word “fraud” is employed in the record, no kind of fraud in respect of this will has been suggested except that species of fraud which is technically known as undue influence.

The will in question was executed by the testatrix, Emma Shotwell, a woman sixty-nine years of age, on December 11th, 1912, and the testatrix died on February 14th, 1913. The testatrix was a farmer’s wife, her husband being seventy-four years of age. Besides the appellant’s husband, James IC. Shotwell, the family consisted of two daughters, Lillian and Laura, who are the parties litigant before this court. The ages of these women are not disclosed, but I think it may be safely inferred that there is not a great difference in respect of age between them, the appellant, Lillian, being the elder, and that they are both at least approaching middle life. The farm is situate in Sussex county, and while its value was not proved, the indications are that it is not very productive or very valuable, and that this small family secured from it a somewhat meagre support.

Until the spring of 1912 the testatrix appears to have been to a large extent the manager of the business of the" farm. She owned the farm in fee and also owned the stock upon it,.and the furniture in the house, I think, as well. No evidence was offered to show the value of this personal property, but it is safe to infer that such value was not a very considerable sum of money.

The appellant had devoted a number of -the best years of her life to assisting her parents without compensation, and in doing so had even worked at a man’s labor upon the farm. The younger daughter formerly seenis to have suffered from ill health during which period she submitted to various surgical operations. With assistance from a friend, and with substantial pecuniary assistance from her mother and her sister, Lillian, Laura was able to obtain a medical education in various medical colleges in the country, finally ending with a diploma from a medical school in Chicago, upon which she began to practice medicine in that city in the year 1911.

While Mrs. Shotwell, of course, had a right to make an in-officious will, and such will could not lawfully be set aside because a jury or a court might consider it contrary to sentiments of natural affection, and contrary to duty, nevertheless, the fact that a will is inofficious is to be taken into consideration as evidence bearing upon the question of undue influence. I am unable to find sufficient evidence in this case to justify the belief that this will as it stands to-day is not in fact a just disposition of property. If the farm had been worth $25,000, with $5,000 worth of stock upon it, the case would be entirely different. I incline to think that most right-minded persons, after perusing the undisputed testimony in regard to the services rendered by the elder daughter to her parents and her sister, and in regard to the advantages which the younger sister has through many years received from her parents and her sister, while she contributed nothing to them, would adjudge that the younger sister, Laura, with her superior education and her established practice of a profession in which she began in a year or two to earn enough money to enable her to make small contributions to her family, has a far better start in life than her illiterate sister with this.Sussex county farm subject to her father’s right of courtesy, and with the moral obligation which she recognizes upon her to take her mother’s place and care for this old man whose days of efficient labor must be about over.

In the summer of 1912 the testatrix had a severe illness, but the evidence, I think, showed beyond all doubt that so far as her mental faculties were concerned she made practically a complete recovery. Her health, however, remained infirm. The older daughter, Lillian, was living in North Arlington, Essex county, carrying on some little business; the younger daughter, Laura, was practicing her profession in Chicago. The old lady could not stand the hard work of the farm and her husband had in some way occupied himself with putting crops in another farm. The exact conditions in the testatrix’s home are not fully disclosed, but it appears that the mother went to her' daughter Lillian’s house about August, 1912, where she remained until her death, during which period she made occasional visits to her Sussex county home. Lillian testifies that her mother said:

“She did not want to be left alone on the farm, and father had been attending to the crops of Mr. Rosenkranz’s place, and she said to hire a working girl she could not do it; the farm would not bear the expense of a working girl, and she was not going to stay there alone and look after things.”

According to the testimony of Lillian her mother, whom she describes as a “very independent woman” (and no witness expresses a contrary opinion), declared her intention to have a will made by a lawyer and desired her daughter to go to a lawyer with her. The daughter Lillian had occasionally done business with a man named Burr, not a lawyer, but a collector, who had an office with a firm of lawyers in New York City. The mother seems to have thought that Mr. Burr could properly draw her will and do it “more reasonable and cheaper than others.” The weakness and infirm health of the mother made it natural and proper that her daughter Lillian should accompany her to New York. The two women called upon Mr. Burr and he had a brief interview with them in the room of Judge Marren, the head of the firm. After learning Mrs. Shotwell’s errand, Mr. Burr called in Mr. Caeciola, an attorney-at-law, or law clerk, and thereupon this legal gentleman took charge of the business. The daughter left the room and was absent while Mr. Caceiola was engaged in taking his instructions from Mrs. Shotwell, drawing the will and having the same executed. Lillian says that during this period, while the will was being prepared and executed, she went out upon a matter of business of her own. Mr. Cacciola testifies that he had never seen Mrs. Shotwell until she came to Iris office to have her will drawn, and Lillian testifies that she had never had any business transactions with this legal gentleman whom she calls Mr. Cashell. The evidence indicates that Lillian’s business with Judge Warren’s office or acquaintanee with any person there employed was confined to Mr. Burr, this collector. If Lillian had practiced undue influence upon her mother and thereby induced her to go through a form of making a will in her (Lillian’s) favor, she might naturally have taken her mother to Mr. Burr, whom she had employed to do business for her, and with whom she might have had some private prearrangements in regard to her mother’s will, but it hardly seems probable that Lillian, after seeing a strange lawyer called in and put in charge of the business of making her mother’s will, would have gone away on her own business leaving her mother to instruct her new legal adviser and be advised by him, and leaving the will to be drawn, executed and put in a lawyer’s safe all in her absence.

There is not a particle of evidence in this case, in my opinion, to warrant the belief that Mrs. Shotwell in giving instructions to this strange New York lawyer, or law clerk, from which he forthwith drew this will, disposing of this Sussex county farm and its equipment, was not expressing testamentary purposes which originated in her own mind unaided and uninfluenced by her daughter Lillian or any other person.

A very important test of the actual condition of Mrs. Shot-well’s mind in respect of the formation of independent plans and purposes and carrying the same into effect, is presented by the testimony of the husband and father, James K. Shotwell, who is sworn as a witness in this cause on behalf of his daughter Laura, the respondent.

It appears that about the 1st of October, as the result of Mrs. Shotwell’s efforts, an insurance policy upon the life of the husband, but in favor of the wife, was converted into cash. The policy was sold, or the surrender value was paid. Mr. Shotwell, about the 1st of October, 1912, had received a check for this money ($2,250), payable to himself and his wife, and had kept it in his possession. Mrs. Shotwell, plainly the better manager of the two, desired to obtain possession of this money so that it might be properly invested, and, accordingly, accompanied by her daughter Lillian, she visited her farm and had an interview with her husband in regard to the check. The testimony of the husband on this subject is as follows:

“Q. What happened on the twenty-third of December [1912] ?
<-A. Then I signed the check.
“Q. Tell us what happened, just the whole story?
“A. Well, my wife and Lillie came to the house in the afternoon or evening of the twenty-third; they, had got a conveyance and came over as far as the Old Tuttle’s corners, and then Lillie came up to my place and got the horse and wagon and drove down and brought her mother up to the house, and I put up the horse, and then I went in, after we had had a little supper—yon want me to go on and tell just the conversation?
“Q. Tell us the story.
“A. After we had had a little supper, my wife was sitting in front of the stove, and she said, ‘Jim, what have you done with that check?’ In our common conversation to each other. I said, ‘Em, I have it.’ ‘Well,’ she says to me, ‘That has been drawn for some time and you have been losing the interest onto it, and now we have been paying the dividends on our life insurance and I wish now you would sign that and I will deposit that in the bank, the same as it is drawn, the same as the check is drawn, to our benefit, that is to James Shotwell and Emma Shotwell.’ And she further said, ‘Now, do you know, we been paying the dividends on this policy; we must not use any of the principal, but we must only use the interest of this money, and the proceeds of the farm must keep us. Now, don’t let us get in debt, for we must keep our home.’
“Q. Well, what was the result of that conversation?
“A. Well, I signed the check.
“Q. Where was Lillie all this time?
“A. She was with her mother, set with her feet on the front of the stove, Lillie stood next to her, her mother set there with her feet on the front of the stove and Lillie stood next to her to the left, and I was to the right of her, on the chair on the right side of the stove.”

This interview between Mrs. Shotwell and her husband occurred only twelve days after Mrs. Shotwell had given her instructions to the New York lawyer, and had her will drawn and .executed all in the absence of her daughter Lillian, and now we ■find this same mother in the presence of her. daughter arguing with her husband and apparently dominating him in regard to the possession and investment of $2,250 in cash. After receiving this money from her husband the testatrix deposited the same in her own name in the Merchants National Bank of Newark. One draft of $50 was made on January 6th, 1913, and the rest of the fund with interest remained undisturbed until after the probate of the will. This transaction between Mrs. Shotwell and her husband does .not, in my judgment, exhibit, or even suggest, a woman of feeble or vacillating mind whose testamentarj' purposes could readily, be influenced by anyone. On the contrary, the transaction indicates that Mrs. Shotwell was, as the daughter says, a “very independent woman,” fully capable of forming and carrying out her own plans and not liable to be unduly influenced by anyone.

In referring to the value of Mrs. Shotwell’s estate, which the daughter Lillian takes under this will, I did not include' the $2,200. It appears that the fund which now is held by the executrix amounts to about $1,100. Whether funeral expenses, &c., were paid out of the original $2,200 does not appear. The husband, James K. Shotwell, it seems, makes a claim to this fund, or a share of it, and perhaps in part founds such claim upon the promise which he says his wife made to him in regard to the way in which the money would be deposited. It was not necessary for the purposes of 'this case to consider the nature or enforceability of any claim to this fund on behalf of Mr. Shot-well, but the fact that the fund is an asset of the estate, if such be the fact, is a matter of some importance in determining, so far as we are obliged to determine, whether or not this was an inofficious will. It must be borne in mind that the will was made twelve days before this money was received by Mrs. Shot-well, that the check representing the money had to be endorsed by the husband as well as the wife, and that Mrs. Shotwell could not have been certain that she would be able to persuade her husband to place his endorsement on his check and hand it over to her for collection. Assuming, however, that Mrs. Shotwell contemplated that her daughter Lillian would not only get the faTm, subject to her husband’s right of courtesy, and the stock thereon, but also this insurance money, I am still of opinion that Mrs. Shotwell’s disposition of her little -estate cannot be regarded as unjust. It is not uncommon for a parent to leave property to one child with the understanding that the gift is not a pure benefaction; that moral obligations go with it to render assistance to persons to- whom the testator deems it unsafe to make a testamentary gift. . Without regard to laws invalidating trusts of one kind or another, and making the enforcement of secret trusts a matter of difficulty, testators go on, and will go on, giving outright, without a sign of a trust, large holdings of property, real and personal, to A., a trusted son or daughter, for the purpose of enabling A. to take care of a parent or another son or daughter who is thus placed in a sort of secret gmsi-guardianship. No law prevents a parent from enriching one son by a testamentary gift in order to put him in a position to take care of his surviving parent to whom np gift whatever is made. If the' daughter Lillian carries out the wishes of her mother with respect to her father’s support, and the father should live to reach an advanced age, she may spend all of this insurance money in the discharge of her filial obligations.

The evidence shows that down to the summer of 1913 the relations between the testatrix and both of these daughters were most affectionate. The letters from the testatrix to Laura, several of them written in the year 1912, show that the mother’s heart was filled with love for the absent daughter. It is quite in accord with our common experience with human nature as manifested by a parent, that the absent child upon whom money and care has been expended, is better loved than the child who stays at home, gives his labor to his parent and between whom and the parent some friction, some petty quarrels are often inevitable.

While the affection of the testatrix for her daughter Lillian appears to have remained unbroken and probably increased as the mother’s failing strength made the daughter’s care more necessary, and perhaps more tender, something occurred which has not been explained by any evidence which in the summer of 1913 produced a certain estrangement between this mother and her daughter Laura. The mother and daughter had met on the farm, the one coming from North Arlington and the other coming from Chicago. They parted and Laura returned to her home in Chicago, and, as she admits, never thereafter communicated with her mother in any way. No explanation of this unfilial conduct is suggested. When Laura was asked on the stand why for six months prior to her mother’s death she had never written to her, she answered, “She did not write to me.” Mrs. Laheyj a neighbor of Lillian, in North Arlington, became acquainted with the testatrix, Mrs. Shotwell, when she went to reside with Lillian, and testified to certain conversations she had with the testatrix. On one occasion Mrs. Lahey asked Mrs. Shot-well whether she could not go to her other daughter while Lillian was moving, and the testatrix replied:

“Well, my daughter Laura is in Chicago. I could not go to her * * * I have not heard from my daughter Laura in a long while, and I was a good mother to my daughter Laura and she was not. I don’t care if I never see her.”

It may be that Mrs. Lahey, who was a witness produced by the appellant, Lillian, somewhat intensifies the expression used by Mrs. Shotwell, but the evidence as a whole indicates beyond all doubt that the affectionate relations between the testatrix and her daughter Laura were greatly disturbed, if not severed, during the six months prior to the testatrix’s death, and that this condition extended back to a time when there was no evidence that the testatrix was contemplating the making of any will. It does not appear that Mrs. Shotwell had ever made a will, or considered the matter of making a will, until the winter of 1912-13, when the will in question was executed. While Mrs. Shotwell no doubt felt aggrieved by the unfilial conduct of her daughter Laura, it does not appear that she was actuated by any feeling of resentment in disinheriting Laura and leaving all her property to Lillian. This is not, however, a case of disinheritance, because Laura in her education and qualification to practice medicine in Chicago, in which work she appears'to have been successfully engaged when the will was made, had already received an “advance” far beyond the whole value of the property which her mother had to leave. Mr. Burr, the witness above mentioned, was asked on the stand whether Mrs. Shotwell stated to him “any reason for her making her will as she did,” and he answered:

“Yes, she said her object in making the will was to leave what she had to one who deserved it; that the elder daughter had always given to her and helped her in every way, and the other daughter had never done anything except take from her; that the elder had been of no expense in the way of education hut that the younger daughter had, and it was all summed up in that way that she was giving it where it belonged, to the one that deserved it or to the one that was entitled to it.”

In addition to recompensing Lillian, Mrs. Shotwell, as we have seen, also contemplated that Lillian would take care of her father to the extent necessary either at the farm or elsewhere, and that to accomplish sncli purpose she would probably require and ought to have vested in lier whatever property she (Mrs. Shotwell) had to leave at her death. Lillian, in her testimony, distinctly admits that her mother considered that she (Lillian) would naturally and properly look after her father, and Lillian makes no denial that such moral obligation rests upon her, but states that wlien in January, 1913, she first learned tire contents of the will she said; “Mother, I think you have put a big responsibility on my shoulder.”

In giving due weight to the fact that the will was executed while the mother was residing at least temporarily with her daughter Lillian in North Arlington, and that Lillian aided her mother in finding a lawyer to draw her will and accompanied her mother to this lawyer’s office for the purpose of having the will drawn and executed, it must be borne in mind that the daughter Laura was not excluded from her mother’s presence or society. If Laura saw her mother for the last time at the farm in Sussex county in September, 1913, and had no correspondence with her mother after that time, there is.no evidence to show that Lillian was responsible for such an unhappy state of affairs. The evidence of* Laura indicating that while at the farm in the summer of 1913 she was prevented from having unrestricted intercourse and private intercourse if she so desired with her mother, by some management oh the part of Lillian, is, in my judgment, of very little weight. Láura’s testimony is denied by Lillian, and, in my opinion, is probably exaggerated and as it stands is improbable.

From the summer of 1913 until her death it is plain thab Mrs. Shotwell’s natural and proper home was with her daughter Lillian. The mother no longer could do the hard work of the farm house, and she needed tire care of a daughter, and Lillian, who appears to have been something of a business woman and had at times acquired property, had a business in North Arlington to take care of—a shop to tend. Her mother naturally went to the daughter, as the daughter could not come to the mother and live on the farm as she had done in former years. The mother, however, was not under any constraint from the daughter, nor were her relatives or other persons prevented from seeing her. The testimony shows that Mrs. Shotwell went back and forth between the farm and North Arlington during the summer and fall of 1913, although her physical condition appears to hive made it proper, if not absolutely necessary, that her daughter Lillian or some other companion should accompany her when she made any journey away from her home.

A decree will be advised reversing the decree of the Sussex orphans court and establishing the validity of Mrs. ShotwelPs will.

The decree of the orphans court will not be disturbed so far as it allows counsel fees and costs to the appellant in that court, the respondent in this court. Counsel for the respondent below, the appellant in this court, admits thatjie consented to the allowance of these counsel fees to his adversaries, but claims that his consent did not cover the allowance of costs. It appears, however, from his statement that the draft of the decree in its present form was exhibited to him and that he made no objection to the allowance of costs therein made, and made no move to prevent the decree from being carried out and the checks of the administrator pendente lite from being paid out of the funds of the estate as provided in the decree. The application of counsel for respondent in this court for a. counsel fee and costs will be denied.

No application was made to charge the respondent in this court with costs either in the court below or in this court, and the propriety of such a possible charge has therefore received no consideration, nor is any intimation made in regard to the matter.


author: Leaming, Vice-Ordinary.

text:
    In the matter of the estate of John Edmund Newton Whitehead, deceased.
    [Submitted May 17th, 1915.
    Determined June 3d, 1915.]
    1. The ordinary has no jurisdiction to entertain proof of a will in solemn form as a means of setting aside a decree of probate of a surrogate who has acted within his original jurisdiction, and from whose decree the statutory period of review has expired.
    2. Act of December 16th, 1784 {Pat. L. p. 59), creating an orphans court, transferred from the surrogates to the orphans court the powers theretofore exercised by the surrogate in hearing and determining disputes as to the validity of wills and as to rights of administration. It also provided an appeal to the ordinary from each of the two courts. Act of June 13th, 1820 {Rev. 1821 p. 776), provided that the surrogates should not proceed to prove a will until ten days from the death of testator, and that appeals from the surrogate to the prerogative court were required to be taken within six months. Act of March 17th, 1855 {P. L. 1855 p. 3J/2), provided for an appeal from a surrogate’s probate to the orphans court, prescribing as the limit for such appeal six months for residents and one year for non-residents. Act of March 27thi 1874 {Rev. Stat. 1874 P- 791), shortened the period for appeal from- a surrogate’s probate by one-half in each case.—Held, that, since such legislation affected procedure merely, it constituted no encroachment on the constitutional powers of the ordinary to determine the validity of wills by entertaining proofs thereof in solemn form.
    3. Since no one has any rights to the personalty of a decedent, except such as are allowed by the state laws, whether such personalty shall pass under the will or under the statute of distributions being determinable by reference to the state laws alone, that determination is conclusive although made without such notice to parties in interest as would be necessary to bar ordinary property rights, the legislature has power to limit the period of appeal in matters of probate without regard to actual notice to parties in interest.
    On petition for proof of will in solemn form.
    Mr. Louis II. Miller, for the petitioner.
   Leaming, Vice-Ordinary.

A petition has been .filed in this court by Charlotta S. Vidal, as the daughter and sole heir-at-law of John Edmund Newton Whitehead, deceased, the ultimate purpose of which is to set aside an order of probate and letters testamentary of the will of said Whitehead, which order and letters were heretofore made and issued by the surrogate of Cumberland county; to that end the petitioner prays that the executor to whom letters testamentary has been issued by the surrogate may be required to prove the will before the ordinary in solemn form. Application is now made in behalf of petitioner for an order directing the executor to show cause why the probate should not be set aside and the executor required to prove the will before the ordinary in solemn form and an administrator pendente lite appointed and the executor restrained from further administrative acts pending the proceedings.

I have been unable to reach the conclusion that the ordinary has jurisdiction to grant any part of the relief sought, and have accordingly declined to issue an order to show cause, either with or without restraint.

The petition, which is duly verified, sets forth that John Edmund Newton Whitehead died at his home in Cumberland county, April 3d, 1914, possessed of personal estate in that county and leaving a widow by his second marriage and petitioner as his only child and sole heir-at-law, and that on April 17th, 1914, the surrogate of that county, on petition of the widow, admitted to probate decedent’s will and granted letters testamentary to the widow, who has been acting as administratrix since that date, and who, by her inventory thereafter filed, disclosed personal assets of testator to the amount of over $22,000. These proceedings of probate are set forth in full in the petition and are admittedly regular on their face. The petition further avers that while the affidavit made before the surrogate by the surviving subscribing witness to the will discloses that the will was executed in accordance with the requirements of the statute, in truth it was not so executed, and in verification of that averment there is annexed to the petition an affidavit since made by the same witness, at the instance of petitioner, which, if .true, indicates that the will was not executed by testator in the presence of two witnesses present at the same time. The petition further avers that by the terms of the will decedent’s entire estate is given to his widow, and also that the will was the product of fraud and undue influence of the widow.

It is also set forth in the petition that the petitioner is a resident of the State of New York and did not hear of her father’s death until after the period of appeal from the probate had expired.

Assuming, as for present purposes it may be assumed, that the matters set forth in the petition are true, it is obvious that relief should be extended to petitioner in this court if jurisdiction for that purpose can be found to exist; especially is this true in view of the circumstance that it has been held that the surrogate and orphans court are without jurisdiction to entertain a like petition (Murray v. Lynch, 64 N. J. Eq. 290; affirmed, 65 N. J. Eq. 399), and it has also been held that the court of chancery has no jurisdiction in matters of this nature. See Trustees v. Wilkinson, 36 N. J. Eq. 141, and cases there collected, to which may be added Ellis v. Davis, 109 U. S. 485, 494, and 1 Wms. Ex. 450 et seq. Unless this court can entertain the present petition, it may well be doubted whether any remedy exists whereby a judicial inquiry can be made touching the validity of the will in question, except as to any real estate which may have- been owned by decedent at the time of his deafh.

In re the will of Hodnett, 65 N. J. Eq. 329, it was determined that the ordinary has jurisdiction to require a will which has been proven before him as ordinary in common form, and by him admitted to probate, to be reproven before him in solemn form. It is there recognized that the jurisdiction of the English ecclesiastical courts in matters of probate and administration was conferred by royal commission upon Lord Cornbury as governor of the province of New Jersey in 1102, and was by like authority exercised by successive governors of the province and thereafter by the successive governors of the state, as ordinaries or surrogates general, under the constitution of 1116, and by the chancellor, as ordinary or surrogate general, under the constitution of 1844; that jurisdiction, so conferred and exercised, is there found to have included the power above stated and to remain unimpaired by any legislation. But it will be observed that the present petition invokes the exercise of a similar power upon the part of the ordinary over an order of probate and grant of letters testamentary made by a surrogate, and the exercise of the power is sought after the statutory period of appeal from the action of the surrogate has expired.

It is pointed out—In re Coursen’s Will, 4 N. J. Eq. 408 (át p. 414)—that prior to the act of December 16th, 1784, which created an orphans court (Pat. L. p. 59), the jurisdiction exercised by the ordinary’s surrogate not only included granting of probate of wills but also hearing and deciding disputes touching their validity and disputes touching rights of administration, and that the act of 1784 in creating the orphans court transferred from the surrogates to the orphans court the powers theretofore exercised by the surrogates in hearing and determining such disputes. After the passage of that act, in the absence of doubts arising on the face of a will, or dispute respecting the existence of a will, or a caveat against proving a will, the surrogate probated the will; .when such doubts or disputes arose or caveat was filed, the surrogate was by that act forbidden to further proceed and was required to transfer the matter to the orphans court. These provisions of section 15 of that act have been preserved in all essential features to this time. By that act an appeal was given from the orphans court to the prerogative court if demanded within one month after the sentence or decree of the orphans court; an appeal was also given from proceedings of the surrogate to the prerogative court. By act of June 13th, 1820 (Pen. 776), it was provided that the surrogates should not proceed to prove a will until ten days from the death of the testator and appeals from the surrogate to the prerogative court were required to be taken within six months. By act of March 17th, 1855 (P. L. 1855 p. 342), an appeal from a surrogate’s probate was required to be made to the orphans court, and six months for residents and one year for non-residents was prescribed as tire limit of time for such appeals. By act of March 29th, 1874 (Rev. p. 492), the period for appeal from a surrogate’s probate was shortened to three months for residents and six months for non-residents. The act of 1874 remains unchanged in that respect.. While this legislation may be appropriately deemed to have in no way modified or curtailed the ancient jurisdiction of the ordinary, in so far as that jurisdiction authorized him to entertain an application for original probate or to set aside a probate which he had granted, yet it cannot be overlooked that the legislation provided a specific method for review by the ordinary of all cases over which either the surrogates or orphans court had exercised original jurisdiction, and specifically limited the period within which the right of review should be exercised. It seems impossible to regard such legislation as reserving to the ordinary the power to set aside or review in any other manner a proceeding in which the inferior tribunal should have acted within its complete original jurisdiction, if indeed such power had at any time been exercised by the ordinary in any manner other than by appeal. This view is, I think, entertained by the learned ordinary in Coursen’s Will, supra, in which the following appears: “Notwithstanding the complete original jurisdiction which the ordinary has in all cases of probate and administration, his jurisdiction is concurrent with that of his surrogates. These officers have long been recognized by the laws, and although they at first derived their powers from the ordinary, as his deputies, those powers have been confirmed to them by long usage and successive declaratory acts of the legislature; and the ordinary cannot now resume them at • will, nor supersede their proceedings under and by virtue of those powers. And it follows as a necessary consequence, that whenever a surrogate has obtained cognizance of a particular case, the ordinary cannot interfere pendente lite. He may review the surrogated proceedings by appeal, but in no other way.”

The courts of this state have given uniform recognition to the view that the proceedings of the surrogate, in admitting a will to probate, are those of a regularly established' court in which the surrogate exercises judicial functions, and that such proceedings can only be reviewed by appeal. In Quidort’s Administrator v Pergeaux, 18 N. J. Eq. 472, 477, Chancellor Zabriskie says: “The granting administration is exclusively with the ordinary and his surrogates. The grant is a proceeding in rem, in the strict sense of that term. It constitutes the person to whom it is granted the administrator, whether rightfully or wrongfully granted; and it cannot be inquired into here collaterally. The act of the surrogate can only be reviewed by appeal to the orphans court or prerogative court. Like the acts of all regularly constituted tribunals, the acts of the surrogate cannot be impeached collaterally.” In Ryno’s Executor v. Ryno’s Administrator, 27 N. J. Eq. 522, 524, our court of errors and appeals quotes the views above expressed by Chancellor Zabriskie with approval. In a subsequent paid of the opinion of the court in that case the following language is used: “If the probate of the will were irregular or voidable for any cause, the remedy of the husband was by appeal to the ordinary, or by proceedings for the revocation of the letters;” and In re Evans, 29 N. J. Eq. 571, 575, Chancellor Runyon, sitting as ordinary, quotes that language; but in neither case was the power of the ordinary to revoke a probate of the surrogate, except on appeal, in the slightest degree involved or specifically considered. Again, in Steele v. Queen, 67 N. J. Law 99, the surrogate is said to hold a court and act judicially in probating wills; and in Murray v. Lynch, 64 N. J. Eq. 290, 302, the surrogate is again declared to exercise judicial functions in probating wills; and the same view is made the basis of decision in Crawford v. Lees, 84 N. J. Eq. 324.

I have been unable to ascertain from such examination as I have been privileged to make of the works on practice in the English ecclesiastical courts whether a probate granted in common form by a deputy of an ordinary or metropolitan could be thereafter reviewed or set aside through the medium of proof in solemn form before the ordinary or metropolitan, nor have I been able to ascertain with certainty whether our provincial governors, under their probate authority bestowed by royal instructions, assumed in that manner to review or supersede probates allowed by their surrogates; but, as already noted, the act of 1781, establishing our orphans court, specifically provided an appeal to the prerogative court from proceedings of the surrogate, and this appeal from probates of the surrogate has' uniformly included the investigation of the very issues presented by the present petition. It is stated, in Griffith's Treatise, at pp. 191, 192, 209 (published in 1796), that the practice in procuring letters testamentary in uncontested cases by means of proofs before surrogates was that the executor

“should attend, with the will and witnesses to its execution, at the surrogate’s office in the county where the testator died, who will administer the proper qualifications, and procure the letters testamentary and copy of the will from the register’s office in due season.”

The oaths of the subscribing witnesses were endorsed on the back of the will by the surrogate, and the will, so endorsed, was forwarded to the register’s office, where letters issued. These letters, so issued in the name of the ordinary by his register, though issued on proofs taken before a surrogate, would seem to be necessarily regarded as probates granted by the ordinary and appropriately subject to his control. This practice, however, could not have continued later-than 1803. By the provisions of an act of November 9th, 1803 (Bloomf. 96), the surrogates were provided with seals of office and books of record, and were required to issue probates of all wills before them proved, and a form of letters testamentary to be issued by them in their name and under.their hands and seals of office was prescribed by the act; they were also required to record in the books provided for that purpose all wills proved before them, together with the proofs thereof, and all letters testamentary granted by them and the records were given the same force, validity and effect as the like records in the registry of the prerogative office. These provisions were embodied in the Revised Orphans Court act of 1820, and have since been retained.

It thus appears that while the present petition invokes the exercise by the ordinary of that part of his jurisdiction which empowers him to entertain proofs of wills in solemn form, the exercise o| that jurisdiction is here sought as a means to set aside and supersede a decree of probate of another judicial tribunal which has acted within its original jurisdiction and from whose decree the statutory period of review has expired.

It is urged in behalf of petitioner that the legislation already referred to cannot be deemed to deny to the ordinary the exercise of the remedy here sought without encroachment on the powers of the ordinary as confirmed to him by our constitutions of 1776. and 18-1-1, respectively. I am unable to adopt that view. As has been already suggested, it is specifically pointed out (In re Coarsen’s Will, supra) that the original Orphans Court act of 1781 removed from the surrogate’s court to the orphans court that portion of the jurisdiction theretofore exercised by the surrogates in “contentious” matters and thus made the two courts share the jurisdiction, theretofore exercised by the surrogates, and provided an appeal to the ordinary from the proceedings of each of the two courts, and subsequent legislation has limited the time for appeal and also provided that the appeal from the surrogate should be to the orphans court and thence to the ordinary. If prior to the establishment of the orphans court the ordinary in fact exercised the right to set aside probates which had been granted on proofs made before the surrogate through the procedure of allowing or ordering proofs of such wills to be made before him in solemn form (of which practice I have found no evidence), or through any procedure other than by appeal, legislation which provided an appeal to the ordinary from “all proceedings of surrogates” cannot be properly regarded as an invasion of that part of the jurisdiction of the ordinary already referred to, for by such appeal an unlimited scope of investigation touching the validity of a will was preserved to the ordinary. The effect of such legislation extends no further than the domain of mere procedure, and the subsequent statutory limitation of the period for such appeals must be regarded as of the same nature; legislation defining the procedure or limiting the time within which a writ of certiorari may be issued by our supreme court has never been regarded as an encroachment upon the jurisdiction of that court.

Nor can the power of the legislature to limit the period of appeal in matters of probate without regal’d to notice to parties in interest be doubted. No one has any right to the personalty of a decedent except such as the laws of the state allow; whether such personalty shall pass under an alleged will or under the statute of distributions is to be determined by reference to the laws of the state alone, and a determination made in conformity with those laws, even if made without such notice to individuals interested in the question as would be necessary to bar ordinary rights of property, is conclusive. Myers’ Case, 69 N. J. Eq. 793 (at p. 796). As is stated in authorities hereinbefore cited, the proceeding is in, rem, and a public necessity exists for prompt settlement of estates.

These views lead me to decline to issue the order to show cause which is sought by the petition.