author: Backes, V. C.

text:
    James R. Nugent, complainant, v. William M. Hayes et al., defendants.
    [Decided August 4th, 1924.]
    1. Equity will redress wrongs perpetrated by fraudulent proceedings at law.
    2. Where a deed was procured under a tax sale proceeding by the statement that the owner of the property could not be found, which statement was untrue, the deed will be set aside as fraudulently procured.

      On final hearing.,

      Mr. James R. Nugent, for the complainant.

      Mr. Herbert Boggs, for the dependants.
   Backes, V. C.

This bill is to annul a Martin act tax deed for four and sixty-two hundredths acres of vacant land in the Newark meadows, and for a partition of the same. The meadows were first laid out for assessment purposes in 1888, and on the assessment map the land in question is designated as block 1393, lot 3; block 1394, lot 4; block 1395, lot 3, and block 1396, lot 6. It was first assessed for taxes in 1893 against Samuel Whitaker estate, and so* up to 1908, when it was sold for the accumulated taxes, $44.25, under the Martin act, to Florence E. Cahill, who, after proceedings against unknown owners, as provided by the act, obtained a deed from the comptroller of Newark upon an order of the circuit court of Essex county, and then conveyed to Lindsley. The blocks and lots were assessed in the name of Samuel Whitaker estate, because the adjoining surrounding lands were located in ownership of record and in the chain of title to' a six-acre tract adjoining on the west. That tract is bound on the east by meadows belonging to Edward Baldwin and Samuel Whitaker. The Baldwin lot was held in separate ownership. The complainant claims that Samuel Whitaker was seized of the lands at the time of his death in 1818, but there is no paper title hi him of record, nor is it shown that he ever had possession, or that anyone claiming under him has since been in possession. The chain of title from Samuel Whitaker to the complainant and defendants hr partition is undisputed. In 1921 the complainant bought from some of the descendants of Samuel Whitaker more than two-thirds undivided interest in the land and brought this suit for partition against the remaining descendants. The outstanding tax title of the defendant Lindsley stands in the way of a partition, and to annul it it. is charged that the order of the circuit court directing the comptroller of Newark to execute and deliver a deed to Florence E. Cahill was procured by fraud imposed upon the court by John Francis Cahill, her husband, attorney for her and Lindsley.

Equity will redress wrong perpetrated by fraudulent proceedings at law. Boulton v. Scott, 3 N. J. Eq. 231; Tomkins v. Tomkins; 11 N. J. Eq. 512; Kirkhuff v. Kerr, 57 N. J. Eq. 623; Truitt v. Darnell, 65 N. J. Eq. 221.

• It is contended that the complainant has no such title in the land as to entitle him to a partition, and that, therefore, he is not injured, and is not entitled to relief, even though the deed was fraudulently procured, the argument being that partition cannot be had except the prima facie title be such as would sustain an action in ejectment, and that complainant does not possess such title. That, generally, is the test, but in a case where the possessory right of the complainant was somewhat similar to that in this case, partition was allowed. Grassman v. Badgley, 90 N. J. Eq. 203. And in Wild v. Cahill, 95 N. J. Law 557, an order like the one here under attack was set aside on certiorari for irregularity in the proceedings where the plaintiff’s title was no stronger than this complainant’s. The court held that the assessment of the land, in the name of an owner from whose descendants the plaintiff in certiorari obtained title, justified the presumption of ownership. - Whitaker’s descendants had prima facie the right to redeem. The assessment of the land to Samuel Whitaker estate establishes that right against the city of Newark and Lindsley, who holds under the city. The defendant Lindsley is not in possession, and whether the complainant will eventually succeed in procuring a partition (the tax title being oirt of the way), is an issuable matter between him and the defendants in partition, in which the defendant Lindsley is not concerned. The question Lindsley is called upon to answer is whether his title was fraudulently procured.

'John Francis Cahill bought 'the ta.x title in his wife’s name and proceeded to perfect the title for Lindsley. In his petition to the circuit court, signed and sworn to by his wife, he stated that he had examined the county records and inquired on the premises, and had make every inquiry that experience would suggest, and that he had failed to find any clue as to the owner of the property, and “that the person or persons having an interest in the land herein described are unknown to her and cannot be ascertained after due inquiry.” The matter was referred to a commissioner for proof. Before the commissioner Cahill testified that he found on the tax record that the property was supposed to be owned by one Samuel Whitaker; that he was “unable to acquire any information whatsoever as to the owner ox owners of the land;” that that he had not looked for the name of Samuel Whitaker or his heirs or descendants in the Newark directory, because “I have no mearas of ascertaining where the reputed owner, Samuel Whitaker, lived, because aao deed is on record giving his address. I cannot learn from any record iir the register’s office, county clerk’s office, surrogate’s office, city hall or elsewhere of any heirs ox descendants of Samuel Whitaker, the repiated owner; therefore, not knowing their aranaes or their whereabouts, I could make aio search iaa any directory or directories of the couaxty of Essex.” He was directed by the circuit judge to make examination of the Newark City Directory to ascertain if it contained the xaaxne of Samuel Whitaker, and in a supplemental affidavit he testified that he had made such examination of the Newark directory for the year 1908, “and that he does not find therein- set forth the name of Samuel Whitaker aforesaid.”

At the hearing Cahill admitted that he knew Samuel Whitaker died in 1818, and that his soar Elisha lived iaa the homestead, 205 Washington street, Newark, and that the son’s name and address appeared in the first city director}', iaa 1835, and thereafter until 1870, and that his son Samuel E. Whitaker lived there, and that his name and address was iaa the directory from 1854 to 1908, and that' Elisha’s daughter, Mary Whitaker, lived there until 1911. The only known Samuel Whitaker, who died in 1818, was the progenitor of the complainant's grantors and of the defendants in partition, and Cahill knew of him and his kin and was familiar with the history of his family; he admitted that this Samuel Whitaker was the reputed owner of the meadow land in question, and he knew of his descendants and their whereabouts; if not all of them and their addresses, he knew where to obtain the information. It was also apparent to him that the assessment was laid against Samuel Whitaker’s estate, because of the statement in the title deeds to the adjoining tract that it was bound by the meadow of Samuel Whitaker, and that the Samuel Whitaker, the forbear of the complainant’s grantors and the defendants in partition, he whose will of 1818 was of record, was the only known Samuel Whitaker at that time in Newark. I think there can be no confusion as to his identity, and I am convinced that Cahill had no doubt of it.

The notice to redeem and the order to show cause, upon which the order for the deed was made, was addressed to “Samuel Whitaker, his heirs, executors, administrators, mortgagees, assignees and legal representatives, as well as to the unknown owner or owners of the land.” The pressing inquiry before the court was not who were the unknown owners of the land, but who was this Samuel Whitaker and his heirs, &c., to whom the land was assessed. And now, when it is considered that Cahill knew of the Samuel Whitaker whom he regarded as the reputed owner, and that his descendants were known to him!, and that he suppressed this information, easing his conscience becairse he was not sure that the reputed owner was the actual owner, the deception perpetrated on the court is palpable. And more, when it appeared by his deposition that Cahill had not examined the city directory for possible heirs bearing the ancestor’s name, and was directed by the circuit judge to do so, he reported in an affidavit that he found no “Samuel Whitaker” in the directory for the year 1908. He admits, however, that he found the name of Samuel E. Whitaker, his grandson, which for more than fifty years had been recorded under the same address. His explanation is that he was directed to look for plain Samuel. Surety not for a man who had died nearly a century before. His explanation is as shallow and cunning as his affidavit is false.

Cahill professes that he called oar Samuel E. Whitaker, the grandson, and made inquiry as to- his grandfather’s ownership, and concluded, from what he said, that he was not the man to whom the lands were accredited in the assessment. I have no faith in liis statement. Samuel E. Whitaker is dead.

I am content that the order for the deed would not have been made had Cahill informed the court of his knowledge of Samuel Whitaker of 1818, and of his descendants whose addresses Ire knew, and that Samuel Whitaker’s descendants would have been permitted to redeem had the corrrt truthfully informed. The deed will be set aside.


source: Caselaw Access Project

license: Public Domain

text:
    Fidelity Union Trust Company, complainant, v. Francis Reeves et al., defendants.
    [Decided August 4th, 1924.]
    1. Courts of equity will support assignments not onfy of dioses in action, but of contingent interests1 and expectations and things (which have no present.actual existence, but rest in possibility only, provided the agreements were fairly entered into, and it would not be against public policy to uphold them.
    2. Where an old lady became the inmate of á home, and signed an application agreeing to assign and set over to the home in a proper and legal manner any pension.or other property of which “I may be seized or possessed, or may hereafter acquire,” and died possessed of an estate valued at $30,000, which unexpectedly came to her shortly before her death, such fund belongs to the home, and no proper application of the principles of public policy are violated by the carrying out of the contract according to its terms.

      On final hearing.

      Mr. Francis Lafferty. for the complainant.

      Mr. Charles G. Titsworth, Mr. Charles M. Dolliver, illessrs. Lum, Tamblyn & Colyer, Messrs. Whiting é Moore and Mr. W. Howard Demurest, for the defendants.
   Backes, V. C.

Harriet Schuman became an inmate of the Bloomfield Home for Aged Men and Women at the age of seventy-nine and remained four years, until her death. She signed the usual form of application for admission, by which the home agreed to maintain her for life, “or so long as said home shall be supported by said voluntary contributions in the manner warranted by its income,” and in which she agreed, in consideration of being received as an inmate, to pay an entrance fee of $300, and “to assign and set over in proper legal manner any pension or other property, real or personal, of which I may lie seized or possessed or may hereafter acquire.” She died possessed of an estate valued at $30,000, which, oddly, came to her shortly before her death. Sixteen days before she passed away her son-in-law, Charles P. Zabriskie, died testate, leaving his estate to his widow, who died testate a few days later, leaving it to her mother. Mrs. Schumanns next of kin are nieces. The complainant, Fidelity Union Trust Company, holds the fund and asks instructions to whom to pa]7 it. The next of kin claim that the contract to assign does not include the mere possibility of a legacy, and that a contract to assign all future acquired property is contrary to public policy.

The great weight of authority in England and this country is that a mere expectancy or possibility by inheritance or testament is not assignable at law, but is assignable in equity for a valuable consideration, and that the assignment will be enforced in equity when the expectancy or possibility has changed into a vested interest or possession. 3 Pom. Eq. §§ 1271, 1287; Warmstrey v. Tanfield, 1 Ch. (Eng.) 29; Bennett v. Cooper, 9 Beav. 252; Wilson Estate, 2 Pa. St. 325; Smithurst v. Edmunds, 14 N. J. Eq. 408; Bacon v. Bonham, 33 N. J. Eq. 614; Mitchell v. Winslow, 2 Story 630; Holroyd v. Marshall (Eng.), 10 H. L. C. 191.

Tlie general principle is not controverted, but it is contended that to be good in equity the subject-matter of an assignment of an expectancy or possibility must be in contemplation of the parties. In other words, that the source of the possible inheritance or bequest must be apparent. In support of the proposition, cases at law are cited where specified prospects, including all future acquisitions, were assigned, and where it was held that the assignments were inoperative as to the latter, because it was found not to have been the intention of the parties that property later accidentally acquired should thereby pass; the logic being that it would include future earned income, and one does not intentionally deprive oneself of the mearas of livelihood, and that the impolicy of permitting one to do so reflects the absence of such intention. Tadman v. D’Epinenil, 20 L. R. Ch. Div. 758; Cook v. Conway, 2 Cranch C. C. 99; Mun-sell v. Lewis, 4 Hill 635; reversed, 2 Den. 224; overruled, Field v. Mayor of New York, 6 N. Y. 179. These cases do not hold that an assignment of a possibility, unless a definite source be contemplated, is operative and non-enforcible in equity. In Field v. Mayor of New York, supra, the court of appeals said: “Whatever doubt may have existed heretofore on the subject, the better opinion, I think, now is that courts of equity will support assignments, not only of choses in action, but of contingent interests and expectations, and things which have no present actual existence, but rest in possibility only, provided the agreements are fairly entered into, and it would not be against public policy to uphold them. Authorities may be found which seem to' incline the other way, but which, upon examination, will be found to have been overruled or to have turned upon the question of public policy.” In the case in hand there were possibilities but no prospects, and in the very nature of things all possibilities, whatever the source or origin, were comprehended. The contract was fairly entered into and faithfully and honestly carried out by the home, and ought in conscience to be upheld, and may be upon the principle and authority above stated, unless it is in conflict with the policy of the law.

The principles and doctrine of public policy are matters of common professional knowledge. While the term is profound, as well as panacean in legal jurisprudence, it admits of no exact definition. Its virtue and vigor lies in its flexibility of application, and while reported cases furnish guides, they rarely are compelling in precedent. I am referred to Baltimore Humane Society v. Pierce, 100 Md. 520; 60 Atl. Rep. 277; 70 L. R. A. 485, in which the court refused to enforce a somewhat similar contract on the ground that it offended public policy. There Pierce, the father, made a written application to the society for admission to its home, in which he promised to obey the house rules. The society reserved to itself the right to expel him for cause. Pierce, the son, and another, covenanted with the society, that if Pierce, the applicant, should acquire any property by legacy, devise or otherwise, they would cause the same to be-transferred and conveyed to the society. The son died and the father inherited from him $3,500. The father refused to transfer, and the society brought suit for damages for breach of the covenant. The court felt that it would be contrary to the public good to lend the aid of the courts to enforce such a contract, and the reason seems to be : The inmate’s term was precarious, because of the society’s reserved right to expel him; he was hopeless of relief from friends, because thej' would not give if he was not to enjoy. He would be deprived of the beneficial use intended to give him comfort and possibly some luxuries of life in his old days. The society itself might suffer because of this reluctance of friends to give to inmates. And because of the uncertainty of the value of property that might come to the inmate and pass to the society, and thus be diverted from its natural channels. The action was at law, where, as we have seen; assignments of possibilities are not recognized, and the court was not unmindful of the different view entertained -in equity and made pertinent allusion to it. The inconveniences in the case were persuasive. It seems to me, however, that the public welfare is better served by upholding contracts of this kind whereby institutions, which care for the aged and tend to relieve the public of their charge, are facilitated in their work for the poor, than to put the ban of the law on them because, perchance, some one of the unfortunates might quite accidentally be favored by the death of a rich relative or friend. And to them the sureness of a home in their declining years far outweighs the advent of any such remote possibility.

The opinion is uninfluential in this case because of the marked difference in circumstances. Mrs. Schuman’s welfare is not a.t stake. What would be the equitable course had she survived and renounced her contract, and whether the doctrine of public policy would be applied, are interesting questions not presently involved. This dispute over her estate is between the home she intended should have it and her collateral kin who claim* under the statute, and the judicial inclination and temper is not as keen, and justly so, to apply the doctrine of public policy.

Mrs. Schuman’s contract with the home was manifestly not improvident, and the home having secured her against the poorhouse, against becoming a public charge, and the public interest being thereby protected and conserved, I fail to see any invasion of the policy of the law or any ground on that score justifying its invalidation. That the lifetime maintenance of Mrs. Sehuman by the home was contingent upon its being supported'by public contribution does not militate against this view. ' The home’s utmost capacity was pledged. The contingency was intrinsic and inherent in the contract, as in all contracts. The home has performed its part of the contract in full. It maintained Mrs. Sehuman four years in happy surroundings, and would, no doubt, have continued to do so had she lived many more years. Eor this it received initially a mere pittance, and the promise of the possibility, and was content. Vulgarly speaking, the home and the inmate each took a chance, and in this instance the home won. But suggestion of the spirit of gamble is unfair and offends good taste, for the homo is a pure charity for the aged homeless, supported by public contributions, and unselfishly served by kindly and generous men and women. Mrs. Sehuman had a fondness for the home before she sought its shelter, and gladly contributed what little she had and offered more and all, if more should come to her by any possibility, to help other unfortunate of this noble institution. The defense of public policy, in the circumstances, is an intrusion. The policy that dictates that no man shall pauperize himself and become a charge on the public also conversely teaches that charitable institutions which tend to save the public of sxxch charges are to be encouraged.

Just a, comment: It seems straixge that if the doctrixxe of pxxblic policy is as potent ixx a case of this kind, as claimed by the next of kin, it was not extended to the many cases in this state where gifts by aged persons to confidants, of all they possessed, were set aside on the ground of improvidence solely becaxxse there was ixo independent advice. Slack v. Rees, 66 N. J. Eq. 447; Post v. Hagan, 71 N. J. Eq. 234; Reeves v. White, 84 N. J. Eq. 661; Voorhees v. Christie, 95 N. J. Eq. 360. In those cases the danger of becoming a public charge was far more imminent thaix here, where only an intangible possibility is involved, aixd yet the doctrine was ixot even adverted to.

It is further contended that the contract ought ixot be specifically enforced because it xvas not mutual, in that the home agreed to maintain the applicant for life if it xvas supported so long by voluntary contributions. Both parties were bounds to its terms axxd the home has performed.

The contract xvas in fact made with the Bloomfield Home. As reduced to xvriting, it appears to have been made with the Job Haines Home. This was a mutual mistake, accidentally made and easily explained. The lady managers of the Bloomfield Home are also managers of the Job Haines Home, a related organization. Though the homes are separate corporate entities, the lady manager having charge of applications served both institutions. The Bloomfield Home had no blank forms of applications, so one of the Job Haines Home was used. They forgot, or accidentaly omitted, to strike out the name “Job Haines Home” and substitute “Bloomfield Home.” The court- will do that for them when the pleadings are properly moulded. It is claimed in this respect that a contract required by the statute of frauds to be in writing cannot be reformed and enforced. Wirtz v. Guthrie, 81 N. J. Eq. 281; 87 Atl. Rep. 134; Vogt v. Mullin, 82 N. J. Eq. 452; Davimos v. Green, 83 N. J. Eq. 596; 92 Atl. Rep. 96. The contract is not within the statute of frauds. It might have been performed within a year. Eiseman v. Schneider, 60 N. J. Law 291.

Another point is that the acceptance of the fund by the home is ultra vires the home, because the authority to do so is not embodied in its charter. If that be so, advantage can be takc-n only by the attorney-general. DeCamp v. Dobbins, 29 N. J. Eq. 36; Stockton v. Central Railroad Co. of N. J., 50 N. J. Eq. 52; Willoughby v. Chicago Junction Railway, 50 N. J. Eq. 656. The complainant will be directed to pay the fund to the Bloomfield Home.


text:
    Robert P. Tolen, complainant, v. Samuel T. Tolen et al., defendants.
    [Decided September 30th, 1924.]
    Tenants in common of lands have a legal right to occupy them, and when one tenant in common has -sole but not exclusive possession thereof, her possession is presumed to he in accordance with her title, and she is not chargeable for the use and occupation thereof.
    On exception to master's report.

      Mr. George W. Anderson, for the excejrtant.

      Mr. A. Harry Moore, for the respondents.
   Backes, V. C.

The property ordered to- be sold in partition consists of a six-room house on a lot twenty-five by one hundred. It belonged to the mother of the complainant and four defendants, and was occupied by their parents. The defendant Sadie Winans and her husband lived with her parents until they died, and then, as she says, she “just stayed on.” The master correctly reported that she was not chargeable for the use and occupation, to which exception has been taken.

Mrs. Winans was in sole, but not exclusive, possession. She had the legal right as co-tenant to occupy the house. Co-tenants have a several and equal right of possession, and the possession of Mrs. Winans is presumed to be in accordance with her title. This presumption is not disturbed by the established circumstances. Her co-tenants were not excluded ; they made no claim for joint occupation, and she asserted no right to exclusive possession. They had the right to occupy the premises, with her. If they chose not to do so they cannot now complain of her sole occupation. The law is well settled in this state that in a situation such as is here presented a tenant in common is not obliged to account for his occupation. Izard v. Bodine, 11 N. J. Eq. 408; Barrell v. Barrell, 25 N. J. Eq. 173; Edsall v. Merrill, 37 N. J. Eq. 114; Sailer v. Sailer, 41 N. J. Eq. 398; Lloyd v. Turner, 70 N. J. Eq. 425. Eor an analysis of the authorities on the subjects, see the footnotes to Gage v. Gage, 28 L. R. A. 829 Thurstin v. Brown, 29 L. R. A. (N. S.) 238. See, also, “Co-tenancy," 7 R. C. L. 826.

Exception overruled.


text:
    Wachung Realty and Development Company, complainant, v. Llewellyn Holding Corporation, defendant.
    [Decided October 9th, 1924.]
    .1. When the time for performance of a contract to sell lands was extended several times, the forbearance of one of the parties in postponing the completion of the contract does not imply that time was not of the essence of the contract.
    2. An agreement extending the time of performance is evidence that time is material. Orange Society v. Konski, 91¡. N. J. Eq. CSS, distinguished. Docterman v. Sehroeder, 9S N. J. Eq. 678, followed.
    On final hearing.

      Messrs. Pomerehne, Lcdble & KauU, for the complainant.

      Mr. David A. McBride and Messrs. Reed & Reynolds, for the defendant.
   Backes, V. C.

Bill for specific performance. The defendant, Llewellyn company, contracted to buy the tract of land involved from the Dare estate, title to pass July 2d, 1923. It agreed to sell it to Scanlon, complainant’s assignor, for $10,000, of ivhich $2,000 ivas paid down, subject to a mortgage of-$10,000, title to .pass on the same day, provided title ivas obtained from the Dare estate. The Dare estate was not able to make title, owing to inheritance tax complications, until August, when the time for closing was set by the defendant for September 6th, Aidiich Avas not agreeable to the complainant, because it Avas not in sufficient funds. The defendant then fixed the time for September 28th; the complainant was not ready, but promised to be on October 10th, and, as it said, “seeking no further adjournment from that date.” The defendant extended the time until October 10th, and placed its deed to the complainant in escrow with the. Fidelity Union Trust Company, to- be delivered on that date upon the payment of the balance of the consideration price, $7,000, and it was stipulated in writing that, in case the complainant defaulted, the deed was to be returned the next day, and "the party of the first part [defendant] will thereby be relieved of any and all responsibility.” On October 10th the complainant could pay only $3,250, and the defendant agreed to take a not for sixty days for the balance, $3,750. The note was made by Joseph V. Lupo, an incorporator of the complainant, who had failed to- pay his stock subscription. The complainant was incorporated for the purpose of taking the title, and depended upon its stock subscriptions to pay the consideration. price. The note was dishonored. On the 17th of the month the note was taken up by a check of $2,000 and the check of Lupo- for $1,750, with the understanding that the $2,000 check was not to be used unless Lupo’s check was honored. It was not. It was sent for certification four or five times and returned alwaj's with the answer "not sufficient funds.” Repeated demands were made of the complainant, verbally and in writing, to pay, but to no avail. On January 7th, 1924, the defendant wrote the complainant that it was -taking- steps to demand the return of the escrow deed. On the 9th the complainant pleaded for more time, tc which the defendant replied that it would hold the matter open until Friday (11th) at noon time, and if the balance was not paid by that time it would consider the transaction entirely closed once and for all. On the 11th the- deed was demanded, and it was returned by the trust company on January 14th. The trust company at the same time sent to the complainant the checks for. $2,000 and $1,750, and advised that the- deed had been returned. Two' days later the complainant’s Mr. Scanlon asked more time, offering to pay $2,000 in cash and give a mortgage on the property for $'1,750. This was declined, the defendant offering to arrange equitable terms for the- return of the purchase-money. The defendant’s attitude was later confirmed by letter. On the 21st or 22cl the complainant tendered the balance In cash, which the defendant refused, and,- in trim, submitted terms for the repayment of the purchase-money, which the complainant agreed to consider. The bill was filed January 29th, and alleges, inter alia,, that the time of performance was by mutual consent extended to January 21st. That is not true. The answer, inter alia, sots up that the defendant abandoned the contract. That, also> is not trae in fact.

The principal contention of the complainant is that time was not of the essence of the contract, and that tire final call to perform was too. abrupt. Time was not expressly made the essence of the contract, but that it was of essence is inferable from the circumstances. The defendant had made a contract to purchase the land, which, in effect, it turned over to the complainant at a slight profit. The conveyances to and from it were to' concur. Its purchase price was to be supplied by the complainant, and that it was to be timely furnished was essential to the defendant’s due performance of its contract with its vendor. Prompt performance was. waived, but time was again made of the essence by the extension to October 10th, and again by the extension to December 10th, and again by the extension to January 11th. King v. Ruckman, 20 N. J. Eq. 316; Bullock v. Adams, 20 N. J. Eq. 367; Newark v. Lindsley, 114 Atl. Rep. 794. It was the privilege of the defendant to put an end to the contract on any of these occasions. This It chose to do January 11th. Tender of performance thereafter was properly rejected. Doctorman v. Schroeder, 92 N. J. Eq. 676. The forbearance of the defendant does not imply that time was not essential. Graciously extending the time of performance over and over again was not a license to presume on good nature'. The defendant waited long and patiently after December 10th and very-property refused to1 go further than the last call, January 11th. The halt was not abrupt or unreasonable. The principle of Orange Society of New Jerusalem v. Konski, 95 N. J. Eq. 254, cannot be applied. :

The bill will be dismissed upon refunding the purchase-money. Adjustment to be made upon presentation of the decree.


text:
    Samuel H. Gillespie, solo acting executor and surviving trustee, &c., of James A. Bradley, deceased, complainant, v. John T. Gillespie and Samuel H. Gillespie, executors, &c., of Louis C. Gillespie, deceased, et al., defendants.
    [Decided November 26th, 1924.]
    1. A direction in a will to «ell real estate amounts to an equitable conversion of realty into personal, property.
    2. Testator bequeathed, by codicil to his will, pecuniary legacies, in varying amounts, to different legatees, and the rost and residue of his personal estate to them, proportionately. By a later codicil he changed the amount of some, pecuniary legacies. Held, that the legatees took the residue in the proportion of the legacies as modified by the later codicil.
    3. Testator bequeathed, by codicil to his will, pecuniary legacies, in vary amounts, to different legatees, and the rest and residue of his personal estate to them, proportionately. By a later codicil he gave a pecuniary legacy to another. Held, that the legacy was a particular gift of a specific sum of money, and that the legatee was not entitled to share in the residue.
    4 It is an established rule in the construction of wills (hat a codicil will not be permitted to disturb the disposition of a will more than is necessary to give effect to the codicil. Query. Does the rule apply to a codicil that adds to or varies a prior codicil?
    5. A bequest is not affected by a revocation where the revocation was made by mistake appearing on the fact of the revocation.
    6. Where two contestants answer the description of legatee, parole proof is admissible to establish the identity of the legatee.
    7. .A bequest in trust for life to one, the principal to another, absolutely. Held, that the revocation of the life interest does not revoke the bequest of (lie remainder.
    8. Bequests of $5,600 each to “churches at Asbury Park” of different denominations, among which was designated “Catholic.” There were two Homan Catholic churches in Asbury Park. Held, that each was entitled to a legacy.
    '.). Bequests of $5,000 each to “churches in Asbury Park” of different denominations, among which was designated “Christian Scientist.” At ihe time the bequest was made the Second Church of Christ-Seientist was not incorporated and had no regular place of worship or a church edifice until a year before the testator died. Held, that the intention of the testator must be determined as of the execution of the codicil and not by what took place afterward, and that the Second Church was not a beneficiary.
    On Anal hearing.

      Mr. Edward II. Mills, Mr. Frederic J. Faulks and Mr. Walter D. Barker, for the complainant.

      Messrs. McCarter & English (Mr. Arthur F. Egner), Mr. Peter Baches, Mr. Henry II. Snedeker, Mr. Frederick W. Hope, Messrs. Wilson & Smock, Messrs. Durand, Ivins & Carton, Mr. Thomas P. Fay, Messrs. Kaizenbach & Hunt, Mr. J. Everett Newman, Messrs. Patterson, Bhome & Morgan, Mr. Walter Taylor, Messrs. Stamler, Stamler & Iloestler and Mr. Clifford I. Voorhees, for the defendants.
   Backes, V. C.

This bill is for the construction of the last will and testament and eight codicils thereto1 of James A. Bradley, founder of Asbnry Park, who died June 6th, 1921, leaving an estate valued at more than a million dollars. The will bears date June 26th, 1896, and bequeaths all the testator’s personal estate to the trustees therein named, and devises all his real estate therein described to them, except a parcel of land in Ocean Grove, devised to the Ocean Grove Camp Meeting Association. Of the lands thus devised in trust, a parcel at the head of Wesley lake was to be conveyed to Helen M. Bradley, testator’s wife, or to her heirs if she predeceased him, and three parcels, Deal lake, Sunset lake and the northerly half of Wesley lake were to be conveyed to Asbnry Park for public purposes, and the remaining parcels were ultimately to be sold. Tbe proceeds of tbe lands to be sold, together with tbe proceeds of tbe personal property, were bequeathed to eight legatees in equal shares, one being the Ocean Grove Camp Meeting Association. The rest and residue of the real estate (there was some other than that described in the will) was devised to the testator’s wife and brother-in-law as joint tenants, over to- the wife’s heirs-at-law if she and the brother-in-law predeceased the testator, which they did.

By the second codicil (January 12th, 1906), land's in Ocean Grove were devised to the Ocean Grove Camp Meeting Association, and the bequest in the will to the association was revoked.

By the fifth codicil (June 11th, 1909), “all the rest, residue and remainder of my estate not devised or bequeathed by my last will and testatment, or any codicil heretofore made, or this codicil,” was given to the testator’s wife, over to her estate, and to pass by her will if she predeceased the testator.

By the sixth codicil (January 17th, 1914), “all the rest, residue and remainder of my estate not devised or bequeathed by my last will and testament, or any codicil- heretofore made, or this codicil,” was given to the “Home for the Aged, No. 63 Clark avenue, Ocean Grove1, New Jersey.”

Only the substance of the voluminous will and codicils necessary to the questions involved has been stated.

The seventh codicil (May 3d, 1916) reads:

“First. I hereby revoke any and all legacies giren and bequeathed in any and all former wills and codicils, and do direct that the following shall be the only bequests distributed in my estate.
‘‘Second. I do hereby give and bequeath to each of the following persons and institutions or corporations, the sum of five thousand [$5,000] dollars.”

Here follows the names of fourteen relatives, three being Josephine Hewitt, Helen Jackson and Minnie Hueston, and the names of two employes. Then follows:

“Churches at Asbury Park, NI. J., as follows: First Methodist. Episcopalian, Reformed Dutch, Baptist, Lutheran, Presbyterian, Ballard -Memorial Church, Catholic, Christian Scientist, Jewish' Synagogue, Zion Methodist (colored), M't. Pisgah Baxitist (colored) and Episcopalian (colored).
“Churches at Bradley Beach, N. J., as follows: Methodist, St. James’ Episcopal and Catholic.
“Churches at Avon, Ni J., as follows: Methodist and Baptist.”

(Eifteen other institutions are named.)

‘'Third. I give and bequeath to my executor the sum of five thousand [$5,000] dollars to be held in trust, and direct him to pay the income therefrom to my nephew William Dickinson during the term of the life of said William Dickinson, and on his death to pay the principal to the Society for the Prevention of Cruelty to Animals, at Asbury Park, N. X, if incorporated; if not, as soon after as a society for this purpose is incorporated.
“Fourth. I give and bequeath to my executor the sum of five thousand [$5,000] dollars, to be held in trust, and to pay the income therefrom to the widow of Anthony Comstock of the city of New York, during the term of her natural life, and on her death to pay the principal to the Society for the Prevention of Crime in the City of New York.
“Fifth. I give and bequeath to the following-named persons, who are now in my employ, the following sums:”

(Eight employes axe named aaid $500 given to each.)

“Sixth. 1 give and bequeath to (he widow of George Truax, who formerly resided ¡at Asbury Park, N. J., and now lives several miles wesi of Asbury Park, the sum of five hundred [$500] dollars.
•'Seventh. I give and bequeath to George Morrow [colored], a former employe, the sum of three hundred [$300] dollars.
“Ninth. All the rest, residue and remainder of my estate I give and bequeath to the aforenamed legatees in the proportion or on the percentage that the aforementioned legacies are given to them, respectively.
“Tenth. I direct that the legacies herein provided for shall be a charge on by real estate, and I direct my executor, and give him full power of sale, to sell any and all of my real estate to pay said legacies, and give him power to execute deed or deeds therefor.
“Twelfth. For the purpose of making this codicil and my said will final, effectual and conclusive upon all my heirs, legatees and next of kin, I do hereby declare that if any of my heirs, legatees or next of kin named or not named herein shall, directly or indirectly, or in any manner, interfere with or delay the settlement of my estate, or attempt to break or change my said will or this or any other codicils 1 hereto, or to interfere with or make null any provisions thereof, such act shall ipso facto operate and be effectual as a release of all estate, right, title, interest or claim of such heir, legatee or next of kin to any of my estate. Any provision of my said v/ill or of this or any codicil thereto in favor of such party, I hereby abrogate, make null and void, and the property bequeathed or devised to such person, institution or corporation shall immediately revert and form a part of my residuary estate; and I further declare that my heirs, next of kin and legatees shall under no circumstances be entitled to any other or greater interest in my estate than is given in my will and this or any other codicil thereto.
“Thirteenth. I hereby ratify and confirm my said will and the appointment of the executor therein named, except in so far as the same is changed by this, a codicil thereto.”

The eighth codicil (March 3d, 1919) provides:

"First. In lieu of the legacies of five thousand L$5,000] dollars each to Josephine Hewitt, Helen Jackson and Minnie Hueston, I give and bequeath to said Josephine Hewitt, Helen Jackson, and Minnie Hueston the sum of fifteen thousand [$15,000'] dollars to each.
“Second. I give and bequeath to the hospital located on Asbury avenue, in Asbury Park, N. J., the sum of five thousand [$5,000] dollars.
“Third. In lieu of tlie legacies of five thousand [$5,000] dollars each, provided in the second clause of the codicil to my will bearing date the third day of May, one thousand nine hundred and sixteen, and given as follow

• The churches and institutions, except three institutions, are designated precisely and in the order as they appear in the second clause of the seventh codicil, and then is added:

“I give and bequeath to each of the aforenamed the sum of one thousand [$1,000] dollars, i. e., I reduce the aforesaid legacies as originally provided for in tile aforesaid codicil from five thousand [$5,000] dollars to one thousand [$1,000] dollars in each.
"Fourth. As William Dickinson is now deceased, I make null and void the legacy of five thousand [$5,000] dollars given and bequeathed by my executor in trust for him by the third clause of the aforesaid codicil.
“Fifth. As the widow of Anthony Comstock is now deceased, I make null and void the legacy of five thousand [$5,000] dollars given and bequeathed to my executor in trust for her by the fourth clause of tlie aforesaid codicil.
‘‘Sixth. As Sylvester Smith and Edward Howland, named in the fifth clause of the aforesaid codicil, are now deceased, I make null and void the legacies given to them by the aforesaid codicil.
“Seventh. The widow of George Truax, named in the sixth clause of the aforesaid codicil, is now the superintendent of the poor farm-near Asbury Park, New Jersey.
“Eighth. * * * In all other respects I ratify, confirm and republish my aforesaid will and my aforesaid codicil, bearing date tlie third day of May, in the year one thousand nine hundred and sixteen.”

The final testamentary scheme is obvious. Lands in Ocean Grove were devised to the Ocean Grove Camp Meeting Asso eiation. All other lands described in the will were devised to the trustee to convey the lot at the head of Wesley lake to the heirs-at-law, except one, of testator’s wife, deceased; to convey Deal lake and Sunset lake and the northerly half of Wesley lake to A'sbury Park for public use, and to sell and convert into personalty the remaining described lands. The residue of the real estate was devised to the heirs-at-law, except one, of testator’s wife, deceased. The personal estate was bequeathed to> the trustees, which, together with the proceeds of the real estate, was to be paid to the persons and institutions named in the seventh and eighth codicils in sums therein stated, and the residue to them proportionately, with a single exception, to be hereafter noted.

1. The. direction to the trustees to sell the real estate devised to them, other than the parcels held in naked trust to convey, amounts to an equitable conversion into personal property, appropriatable to the payment of legacies. Tripplelt v. Ivins, 93 N. J. Eq. 202, and cases cited.

2. The first general residuary clause appears in the fifth codicil (June 11th, 1909), in favor of the testator’s wife, or of her estate, according to her will, if she predeceased the testator, and the second, in the sixth codicil (January 17th, 1914), in favor of the Home for the Aged, No.. 63 Clark avenue, Ocean Grove, New Jersey. Mrs. Bradley died February 13th,'191'5. These clauses, operated on one-eighth of the personal estate bequeathed by the will to the Ocean Grove Camp Meeting Association, which had been revoked by the second codicil (January 12th, 1906), and had not previously been disposed of. It is not necessary to decide whether the later revoked the earlier clause, for, as to personal property, they were both revoked by the‘later and ninth item of the seventh codicil, and neither was ever operative as to the real estate, as they included only the estate “not devised or bequeathed by my last will and testament, or any codicil heretofore made, or this codicil,” and the residuary of the real estate had previously been devised to the testator’s wife and brother-in-law, over to. the wife’s heirs-at-law, if both predeceased him.

3. The seventh codicil revoked legacies only. It plainly says so; its language is not open to construction. Moreover, the ensuing gifts of legacies only; the gift of the. residue in language strictly and technically referable to gifts of personal property “I give and bequeath;” the ratification and confirmation of the1 will and the penalty upon heirs, legatees and next of kin who “attempt to break or change my said will, or this or any other codicil thereto,” imposed “for the purpose of making this codicil and my said will' final, effectual and conclusive upon them,” all emphasize the limitation, and the intention that the will and codicils, in só far as they devise real estate, remained intact. The re-ratification of the will by the eighth codicil is further confirmation.

4. The residuary personal estate, only, passed under the-ninth clause of the seventh codicil “to the aforenamed legatees in the proportion or on the percentage that the aforementioned legacies are given to them, respectively,” viz., the fifty and m'ore individuals and institutions to whom had been bequeathed $5,000 each; eight employes $500 each, and one-$300, and a Mrs. Truax $500. By the eighth codicil four of the legacies to individuals were revoked; three to individuals were increased from $5,000 to $15,000; those to the institutions, except three, were decreased from $5,000 to $1,000,. and one was added—$5,000 to Asbury Park Hospital—and the question propounded is, is the residuary estate to be distributed among the legatees in proportion to the amount of their pecuniary legacies fixed by the seventh codicil, or as modified by the eighth codicil ? It would seem upon reading-the will and operating codicils, and visualizing the testamentary scheme, that the manifest intention of the testator was to apportion the residiré according to the last table of pecuniary legacies. That is one’s first and enduring impression. By the seventh codicil the testator put his relatives and friends on a par with the institutions ; all were to- prorate in the distribution of the residue on the basis of $5,000-bequests to each. Por reasons of his own, as to which there need be no speculation, he concluded to prefer his relatives and friends, and by the eighth codicil gave, “in lieu of” the legacies given by the seventh codicil, legacies of other-amounts, indicating, by the substitution of amounts, an in tendon to introduce a new division in the apportionment of the residue, and that it was to be distributed according to the new schedule. Evidence of the testator’s trend of mind is that, after he had in plain and unmistakable language substituted the $1,000 legacies for the $5,000 legacies to the institutions, he added, "i. e., I reduce the aforesaid legacies, as originally provided for in the aforesaid codicil, from five thousand ($5,000) dollars to one thousand ($1,000) dollars to each,” intimating that the original legacies, in reduced amounts, were to he the measure of participation in the residuary estate. Another and persuasive circumstance that the testator intended the division to he on the basis of the substituted legacies, is that, in effect, the eighth codicil adds to the residuary fund approximately one hundred thousand dollars, and, if the division he on the basis of the seventh codicil, tile several institutions would receive more of the residuary estate than they would have if the eighth codicil. had not been made. Surely the testator did not intend by the samte stroke of the pen to decrease and increase their lot

It is argued that to give greater effect to the eighth codicil than to cut down the primary bequests would viólale the established rule of construction of wills, not to permit a codicil to disturb the disposition of wills more tiran is neces sarv to give effect to- the codicil. The rule has been observed, in its true sense, h}r giving effect to the testator’s intention as fairly disclosed by the codicil. In this connection it is suggested that the value of. the rule is lessened, if not entirely lost, when applied, as here, to a codicil that modifies a prior codicil to a will. If this Ire sound, then, if the two codicils are read together as one, their combined office being to vary or add to the will, less difficulty is experienced in determining the testator’s intention, to he as already indicated than if the provision of the seventh codicil liad been in the will instead of a codicil.

The problem here involved has not been before our courts for decision. In Hayes v. Hayes, 21 N. J. Eq. 265, the be quests aggregated $70,000, and the will directed that if the net proceeds of the estate should amount to more or less than that sum the bequests should each he increased or diminished, as the case might be, and in proportion to such bequests, and thus made to absorb the residuary estate, and it was held that a pecuniary legatee, whose legacy was cut down by codicil, shared in the residue, according to the reduced amount, on the theory that the pecuniary and residuary legacies constituted but one legacy to each legatee. That does hot touch the point under discussion, for here the pecuniary and residuary legacies are clearly several.

Two eases in other jurisdictions in which the question was squarely presented are In re Courtauld, 47 L. T. (N. S. Eng.) 647, and Hard v. Ashley, 117 N. Y. 606, in each of which it was held that the division of the residuary estate must be in the proportions of the substituted legacies.

It is claimed that contrary view is held in Colt v. Colt, 32 Conn. 422; 19 Blatch. 399; Welmore v. Parker, 52 N. Y. 450, and Pendergast v. Tibbetts, 164 Mass. 270. That is not so'. In the Colt Case the testator gave five hundred shares of stock in a corporation to his brother for life, remainder to his brother’s children, and a number of shares to others, and by another clause the balance of his shares to the legatees proportionately. By codicil he revoked the bequest of five hundred shares to his brother. The court held, upon established rules of construction and attending circumstances, that the revocation of the primary bequest did not evince an intention to do more than to cancel that bequest. Judge Blatchford (19 Blatch. 399) approved the judgment. A conspiouous distinction between that case and the one in hand is that there was a naked revocation of the primary bequest which seemingly confined the operation of the codicil to the primary bequest, whereas here there is a substitution of the primary bequests, evidencing an intention to revoke the residuary legacies pro tanto. In Wetmore v. Parker the testatrix gave to a church and an academy each the sum of $10,000 and legacies to' other persons, and the residue of her estate to the legatees proportionately. The prim'ary legacy to the church, it was stated, was to help pay the expenses of building its edifice, that to- the academy to be used in rebuilding its academy, and if it should be com pletod before the bequest became effective, it was to be used in the improvement of the lot and the purchase of furniture, &c. Later, the testatrix gave to the academy $3,00Q, and by codicil revoked the bequest to the extent of $3,000 .and gave instead $7,000. By another codicil she revoked the gift to the church because, as stated, she had concluded to give $3,000 to help defray the debt incurred in building the church, and that it appeared probable that the purpose of her legacy would soon be accomplished. It was held, as apparent upon the face of the will and codicils, that the residuary bequests were not intended to be affected, Chief-Justice Church saying: “They are fox different purposes, one for particular, the other for general, purposes. We are justified in inferring that the testatrix had two objects in view, one to' aid in completing and furnishing the building, the other to contribute toward a fund for permanent support. The first bequest would, necessarily, be expended at once; the latter might, and, ordinarily, would be, permanently invested.” In Pendergast v. Tibbetts there were various pecu niary legacies, and the residue of the estate was given to the legatees proportionately. Three nieces were given $10,000 each. By a codicil their legacies were revoked, and in place the}r were given $5,000 each, and $5,000 each was given to the three other nieces, who were not named in the will. The court held that the three nieces whose bequests were reduced were entitled to share in the residue in proportion to their original bequests, because, as it appeared, it was the intent of the testator to give to each of the three nieces not mentioned in the will $5,000 by taking it from the three mentioned in the will; that no change was made m the total amount of the specific bequests, and that the amount of the residue was therefore not affected, saying that “the testator well may have been content that the sums named in the. vyill should stand, notwithstanding the reduction by the codicil, as the basis for the distribution of the rest and residue. At any rate, that is the way the will reads, and, in the absence of anything in the codicil plainly indicating a contrary intention, we must take the will as it stands.”

“These decisions (Colt v. Colt, Wetmore v. Parker, and it applies to Pendergast v. Tibbetts) proceeded upon the plain principle that where a devise is made of an estate, a revocation will not be implied, unless no other construction can be placed upon the language.” Hard v. Ashley, supra. In the Colt Case the rule was strictly applied. In the other two they lent themselves easily to the construction adopted.

5. “The hospital located on Asbury avenue, in Asbury Park, New Jersey” (Asbury Park Hospital), is not entitled to participate in the distribution of the residue of the personal property. The residuary estate was given to “the aforenamed legatees” named in the seventh codicil. The hospital was not one of them. The legacy to the hospital is contained in the eighth codicil, and was a particular gift oí a specific amount of money. The testator may have in tended to include the hospital as one of the residuary lega tees, but he did not so express himself in his will, and his intention can be gathered only from that document. Hall v. Severne, 9 Sim. 515; Sias v. Chase, 207 Mass. 372; Pendergast v. Tibbetts, supra.

6. By the seventh codicil Edward Howland, an employe, was given $500. and by the eighth codicil it was revoked because, as it is there stated, he was deceased. He is still living. When a testator by a codicil revokes a devise or bequest through a mistake appearing upon the face of the instrument the revocation does not take effect. 1 Schoul. Wills (5th ed.) § 410; 1 Jarm. Wills *147; Campbell v. French, 3 Ves. Jr. 321; Hayes v. Hayes, supra; Strong’s Appeal, 79 Conn. 123.

7. Five hundred dollars was given to “the widow of George Truax, who' formerly resided at Asbury Park, New Jersey, and now lives several miles west of Asbury Park.” For further identification it is stated in the eighth codicil that “the widow of George Truax, named in the sixth clause of the aforesaid codicil, is now the superintendent of the poor farm near Asbury Park, New Jersey.” Susan A. Truax was the widow of Charles Truax, and was the superintendent of a poor farm located about three and a half miles west of

Asbury Park. The testator had taken some interest in her poor farm and helped her by some minor gifts. Jane Amanda Coward married one George Truax in 1870, and lived with him in Asbury Park until his death m 1891. In 1895 she married one Coward, of Long Branch, since which time she has been known as Mrs. Coward. Since Coward’s death she has been an inmate of the Home for the Aged at Asbury Park. She was not, nor was her husband, ever the superintendent of any poor farm, or had any connection with a poor farm near Asbury Park. The seventh and eighth codicils wore made long after she became known as Mrs. Coward. The testator evidently had some doubt as to whether lie had property identified Susan, and hence the explanation in the eighth codicil. The proof is satisfying that the testator intended to give the legacy to Susan A. Truax, the widow of Charles Truax. Proof is admissible to identify the legatee. Moore’s Executor v. Moore, 50 N. J. Eq. 554; German-Pioneer Verein v. Meyer, 70 N. J. Eq. 192; affirmed, 72 N. J. Eq. 954.

8. Other beneficiaries were incorrectly designated in the codicils, and their identity has been established by satisfac tory proof.

9. By the third item of the seventh codicil $5,000 was bequeathed to' the executor, in trust, to' pay the income to' William Dickinson, and upon his death the principal to the Society for the Prevention of Cruelty to Animals, at Asbury Park, New Jersey, and by the fourth item $5,000 was given to- the executor, in trust, to pay the income to the widow of Anthony Comstock, and upon her death to pay the principal to the Society for the Prevention of Crime, in the city of New York. The eighth codicil provides:

“Fourth. As Wiilliam Dickinson is now deceased, I make nnll and void the' legacy of five thousand [$5,000] dollars given and bequeathed to my executor in trust for him by the third clause of the aforesaid codicil.
“Fifth. As the widow of Anthony Comstock is now deceased, I make null and void the legacy of five thousand [$5,000] dollars given and bequeathed to my executor in trust for her by the fourth dance of the' aforesaid codicil.”

The gifts of the life interests and the gifts of the principals are separate and independent. The revocations were only of so much of the gifts as were given “in trust for him” and “in trust for her.” The limitation is plainly stated in the revocations. In re Whitehorn v. Best, 2 Ch. R. (1906) 121; Green v. Tribe, 27 W. R. 39; Alt v. Gregory, 8 DeG. M. & G. 221; May’s Estate, 259 Pa. 115. The testator evidently intended to give the principal of the life interest given to the widow of Anthony Comstock to the Society for the Suppression of Vice of New York, with which he was associated for many years. He erroneously styled the beneficiary as the society for the prevention of crime in the city of New York. There is such a society. The two societies are allies, engaged in the same activities, and have stipulated that the legacy be paid to the beneficiary named in the codicil.

10. In bequests, of $5,000 to institutions classified as “churches at Asbury Park,” the testator designated “Catholic.” There are two- Roman Catholic churches in Asbury Park, Holy Spirit and Our Lady of Mount Carmel, and each' claim a legacy and a proportionate share of the residuary estate as independent legatees. Both churches were in ex istence many years before the bequests were made. The testator undoubtedly had in mind organized units of the Catholic faith having church edifices in Asbury Park. To reconstruct-the language of the gifts, if each had been separately" stated, it would read, “I give and bequeath to- each of the Catholic churches at Asbury Park $5,000.” The argument is strained that by “Catholic” the testator meant the universal Roman Catholic church organization, with churches at Asbury Park, and that applying the doctrine of cy pres, or something akin to it, a, single pecuniary bequest and a proportionate share of the residue should be divided between the two churches. That is neither what the testator said or intended.

11. Hnder the same general classification and designation the Pirst Church of Christ-Scientist of Asbury Park and the Second Church of Christ-Scientist of Asbury Park each claims to be an independent beneficiary of a pecuniary bequest, and share in the residue. There is no question that the First Church is one of the legatees. It had a church and functioned in Asbury Park some years before the seventh codicil was executed, which was well known to the testator. As to the Second Church: It was only within a month before the seventh codicil was made that some of the members of the First Church withdrew therefrom and associated themselves as the Second Church. They met for worship at various convenient places, at first in the Metropolitan Hotel, then in the state armory, and later at the public library, Asbury Park, until 1920, when they incorporated and settled in a church of their own. The existence of the association of members was not generally known. It does not appear to have been known to the testator. The bequests do not and the testator did not intend to include in the group of beneficiaries religious organizations, except those having that most prominent characteristic of organized religion—church edifices. The circumstance and fact that before the death of the testator the Second Church of Christ-Scientist acquired a church and came within the general description of beneficiaries under the seventh codicil, does not entitle it to participate as a legatee. The codicil, in this respect, must be read as of the date it was' executed, and the testator’s intention determined as of that time, and not By what happened afterward. Gray v. Hattersley, 50 N. J. Eq. 206; Henderson v. Henderson, 77 N. J. Eq. 317; Webb v. Webb, 111 Ark. 54; Hoffman’s Will, 201 N. Y. 247.

Decree will be settled on notice and service of a copy of the form on defendants’ counsel.


author: Griffin, V. C.

text:
    Edward G. Heritage, administrator, &c., complainant, v. Stella Bethel et al., defendants.
    [Submitted January 12th, 1924.
    Decided April 23, 1924.]
    1. Where a witness testified to a conversation overheard by her forty years before, when she was only ten or eleven years old, such testimony, though given by c-ne who apparently desired only to tell the truth, is not sufficient to defeat a title which vested in an estate more than twenty years ago.
    2. When a mortgage has been merged in a final decree, such merger does not operate to divest the mortgagee of the right to enter into possession as mortgagee.
    On bill, &c.

      Mr. Benjamin J. Darling (Mr. Benjamin Dowden, of counsel), for the complainant.

      Mr. John J. Marnell (Mr. Leon Abbeti and Mr. J. Emil Walscheid, of counsel), for the defendants.
   Griffin, V. C.

The complainant filed his bill under an act entitled “An act to compel the determination of claims to real estate in certain eases, and to quiet the title to the same.” 4 Comp. Stat. p. 5399.

The following facts appear: On May 1st, 1878, Judd and Buckingham conveyed to Thompson and wife certain lands in Jersey City, taking back a bond and purchase-money mortgage in the sum of $3,000, payable in installments of $600 a year on the 1st day of May in each year succeeding the date of the mortgage. On the 19th day of March, 1881, Judd and Buckingham assigned said mortgage to Alfred Heritage et al., surviving executors of the last will and testament of Joseph N. Scott, deceased, late of the city of New York. The mortgagors having failed to pay the installments due on the mortgage, the above-named executors filed their bill in this court on May 22d, 1882, for the foreclosure of said mortgage, and a final decree was entered therein on August 15th, 1882, at the foot of which decree is the following:

“And it is further ordered, adjudged and decreed that the defendants 'stand absolutely debarred and foreclosed of and from all equity of redemption of, in and to the said mortgaged premises when sold as aforesaid by virtue of this decree.”

About the year'1882 the mortgagors (who had lived in the premises) moved to New York, and the complainants in the foreclosure suit entered into possession, renting the same, collecting the rents, paying the taxes and making repairs, and such possession has continued in complainants in the foreclosure suit, and the present complainant, who was appointed administrator with the will annexed of Joseph N. Scott, deceased, after the death of the last survivor of the executors appointed by the will of Mr. Scott. On or prior to 1917, an adjoining owner discovered that his building encroached on the premises in question, and sought a deed from the complainant. The question was then raised as to whether the complainant had a good title. Thereupon, complainant filed his bill to foreclose the above-mentioned mortgage on the 25th of October, 1917. This suit remained in abeyance .until September 2d, 1921, when the bill was dismissed on motion of the complainant’s solicitor*. No subpoena had been’ taken out and no answer filed. Thereafter, on October 25th, 1921, the complainant filed the bill in this cause.

The defendants deny that the executors of Scott entered into possession of the premises as mortgagees, but, on the contrary, say that they entered into possession under an agreement with Thompson, .the mortgagor, to collect the rents and apply them to the mortgage indebtedness represented by the decree in foreclosure, and that if an opportunity to sell the premises at a good price presented itself, the executors or Thompson should sell the premises and apply the proceeds upon the mortgage indebtedness, or the balance thereof, and, if anything thereafter remained, to pay the same to the said Thompson. To support this theory it was shown that on November 16th, 1882, some three months after the decree had been entered, Thompson made a contract to convey the premises in question to one Wohlleben for the sum of $3,800, which contract had been recorded. This Thompson had a perfect right to do, because the equity of redemption had not, at that time, been barred. I may add that after-wards, on the 5th of March, 1883, Wohlleben, in order to clear the title of the cloud created by the- recording of the contract, executed to Thompson a release of all interest acquired bjr him under said contract. ■ '

Mrs. Adalyn M. Phillips, a granddaughter of the mortgagor, Thompson, testified that she heard a conversation, in the spring of 1883, between Mr. Heritage, the then executor, and Mr. Thompson, the mortgagor, in which Mr. Thompson said, “I am awfully sorry to bother you, Heritage, but I didn’t know how soon I would be able to get out and I wanted this thing straightened up,” and Mr. Heritage said, “I am sorry, Mr. Thompson, that your deal fell through.” She said, “Grandpa, I think, had been trying to sell the house.” This apparently referred to the Wohlleben contract. She said, further, “Grandpa said that he would like to have Mr. Heritage collect the rents and apply them on the debt.” She said her grandmother, at this time1, said that they were “homesick for the place; she was very fond of flowers, and she would like to get back there and have her flowers again. Mr. Heritage said That is all right; I guess we can patch things up nicely,’ and he and grandpa talked and they seemed to straighten the thing all out.” She further says, “When grandpa said I would like to have you collect the rents and apply them on the debt, Mr. Heritage said, ‘why, I think that will be all right; I am willing.’” She said further, “Grandpa said fin the meantime, if either of us have a chance to make a good deal and sell the house, we will do so and straighten it up, and I will get what is coming to me,’ and that is the way it was left. Mr. Heritage said, That suits me all right.’” Her grandfather died about 1895.

No further evidence was offered to support the agreement set out in the answer. At the time that Mrs. Phillips heard this conversation she was about ten or eleven years of age. She was a very intelligent witness, seemed very frank and clear in her testimony, and greatly impressed me with her desire to tell the truth, but I am inclined to the view that, after a lapse of forty years, it would be very difficult for her to remember with reasonable accuracy a conversation heard by her when a child so young. Such testimony, after such a lapse of time, when all the parties- who had knowledge of the transaction are 'dead, should not be permitted to defeat a title which vestéd in the Scott estate more than twenty years before. Mr. Thompson died in 1895, and from 1883 to 1895 it does not appear that he ever asked for an accounting, or made any inquiry with respect to the premises, and, in fact, from the time that the Scott estate went into possession down to 1917, when the Scott estate sought to obtain a deed from the defendants to remove a cloud on its title, neither Mr. Thompson in his lifetime, nor his heirs after his decease, made any inquiry regarding these .premises, and apparently were unaware of any right therein.

But it is urged that the complainant and his predecessors could not hold as mortgagees in possession because the mortgage merged in the final decree. While it is true that the mortgage mlerged in the final decree (Hudson Trust Co. v. Boyd (Chancellor Walker), 80 N. J. Eq. 267; Sandford v. Wellborn (Judge Williams, Court of Errors and Appeals), 85 N. J. Eq. 577; Bradley v. Atlantic Guarantee and Title Ins. Co. (Chancellor Walker, Court of Errors and Appeals); 121 Atl. Rep. 626), yet such merger does not operate to divest the mortgagee of the right, to enter into possession as mortgagee.

In Hudson Trust Co. v. Boyd, supra, the chancellor said: “Now, the mortgage is very effeetually continued when merged into the decree of foreclosure, which can be enforced by execution at any time within twenty years [on notice to defendant after the lapse cf six years], and, under' the terms of the decree, the defendants are not foreclosed of the equity of redemption until the premises are actually sold by virtue thereof.” But this merger does not destroy every right of the mortgagee under the mortgage. The chancellor says that the mortgage “is effectually continued when merged into the .decree of foreclosure”—effectually continued for what purpose ? It is unlike a. judgment on the bond, where a complete merger takes place. In Howard Savings Institution v. Essex Building and Loan Association, 46 Atl. Rep. 223, Vice-Chancellor Emery said: “While the amount of the indebtedness on the mortgage is ascertained by the decree, there is no decree for payment otherwise than by a sale of the mortgaged premises, and no action can be maintained on the decree to recover the amount due. In this respect the decree in a foreclosure suit differs in toto from an action on the bond at law, where the bond .is merged in the judgment;—a higher security for the original debt, and itself the basis of an action. Nor is the estate itself of either the mortgagor or mortgagee under the mortgage changed, ipso facto, by virtue of the final decree, which, in its terms, only affects this estate by directing a sale to pay the debt, and, so far as the estate in the laud is concerned, provides that the defendant’s rights shall be foreclosed when sold under the decree.” In this latter case the vice-chancellor thought that the dictum in Lewis v. Conover, 21 N. J. Eq. 230, that the mortgage was merged in the decree, was not sustained by any reasoning or authority cited, and, in view of the subsequent decision in Deshler v. Holmes, 44 N. J. Eq. 585, must be considered as not declaring tlie true rule. In view of the later decisions above cited, the statement of the vice-chancellor that the mortgage is not merged in the decree must be considered as overruled. But, in view of the language of the chancellor that the mortgage is very effectually continued when merged into a decree of foreclosure, and the language cited from the opinion in Howard Savings Institution v. Essex Building and Loan Association supra, as to the character of the decree and its effect upon the rights of the mortgagor and mortgagee, I have reached the conclusion that the merger by the decree did not operate to prevent the mortgagee from entering into possession as such, and, being in possession for more than twenty years (namely, thirty-nine years), my conclusion is that, under tlie eighteenth section of an act entitled “An act for the limitation of actions” (3 Comp. Stat. p. 3170), which reads as follows: “That if a mortgagee, and those under Mm, be in possession of the lands> tenements and hereditaments contained in the mortgage, or any part thereof, for twenty years after default of payment by the mortgagor, then the right or equity of redemption therein shall be forever barred,” the right or equity of redemption of the defendants in this case is forever barred.

I will advise a decree for the complainant.