author: Gummeke, Chief-J ustice.

text:
    Samuel D. Lodge, administrator, appellant, v. Elmer J. Hulings, executor, et al., respondents.
    [Filed November 17th, 1902.]
    By the true construction of sections 3 and 4 of the Evidence act, as revised in 1900, a party to a suit is a competent witness, notwithstanding that either, or loth, of the parties appear on the record in a representative capacity, but, when that is the case, a party offering himself as a witness will not be permitted to testify concerning any transaction with, or statement by, the decedent of his adversary, unless his adversary first offers himself as a witness and testifies to a transaction with, or statement by, such decedent.

      On appeal from a decree advised by Vice-Chancellor Grey, whose opinion is reported in 18 Dick. Ch. Rep. 159.

      Mr. Austin II. Swaclchamer, for the appellant.

      Mr. Joseph J. Summerill, for the respondents.
   The opinion of the court was delivered by

Gummeke, Chief-J ustice.

One Paschal L. Hulings, in his lifetime, executed and delivered to his mother, Rachel R. Hulings, certain promissory notes to secure the payment of moneys loaned by her to him. He died without having paid these notes, and, after his death, Mrs. Hulings gave them to the defendants, who were his sons, and also his executors, by whom they were destroyed. The complainant, as administrator of Mrs. Hulings, seeks, by his bill, to have the transfer of the notes to the defendants declared to be invalid, and the notes re-established as an indebtedness of the estate of Paschal Hulings, the defendants' testator.

The grounds upon which this relief is sought are that Mrs. Hulings was mentally incompetent to make the transfer, and further, that she was unduly influenced to do so by the defendants.

On the trial of the case before the vice-chancellor Elmer J. Hulings, one of the defendants, offered himself as a witness in their behalf, and was permitted, against objection, to testify coniceming transactions with, and statements made by, Mrs. Rachel Hulings> the court considering that, where both of the parties to a litigation appear upon the record in a representative capacity, our statute concerning evidence permits each of them to testify on all matters which are relevant to the issue, accepting the declaration of this court to that effect in Haines v. Watts, 26 Vr. 149, as conclusive.

The vice-chancellor, in so ruling, seems to have overlooked the fact that, since the decision of Haines v. Watts, there has been a revision of the act concerning evidence, and material alterations made in those provisions thereof which were construed in the ease referred to. P. L. of 1900 p. 362. The importance of the changes made, so far as the right of either party to the record to testify is concerned, when both appear thereon in a representative capacity, becomes at once apparent upon comparing the old law with the new:

“act of 1874.
“Sec. 3. No person shall be disqualified as a witness in any suit or proceedings at law or in equity by reason of his or her interest in the event of the same as a party or otherwise, but such interest may be shown for the purpose of affecting his or her credit; provided, nevertheless, that no party shall be sworn in any case when * * * either of the parties in a case sue or are sued in a representative capacity, except as hereinafter provided.
“Sec. 4. A party to a suit in a representative capacity may be admitted as a witness therein, but if called as a witness in his own behalf and admitted, the opposite party may, in like manner, be admitted as a witness.
“SUPPLEMENT OF FEBRUARY 25TH, 1880.
“In all civil actions in any court of law or equity of this state, any party thereto may be sworn and examined as a witness, notwithstanding any party thereto may sue or be sued in a representative capacity; provided, nevertheless, that this supplement shall not extend so as to permit testimony to be given as to any transaction with, or statement by any testator or intestate represented in said action.”
“revision of 1900.
“Sec. 3. No person shall be disqualified as a witness in any suit or proceedings at law or in equity by reason of his interest in the event of the same as a party or otherwise, but such interest may be shown for the purpose of affecting his credit.
“Sec. 4. In all civil actions any party thereto may be sworn and examined as a witness, notwithstanding any party thereto may sue or be sued in a representative capacity; provided, this section shall not extend to permit testimony to be given by any party to the action as to any transaction with or statement by any testator or intestate represented in said action, unless the representative offers himself as a witness on his own behalf, and testifies to any transaction with, or statement by his testator or intestate, in which event the other party may be a witness on his own behalf as to all transactions with, or statements by such testator or intestate, which are pertinent to the issue.”

In Haines v. Watts we held that, by force of the third section of the act of 1874, a party to the record was qualified to testify as fully and completely as any other witness in a case, unless excluded by the terms of the proviso; that the expression “either of the parties sue or are sued in a representative capacity,” contained in the proviso^ was to be construed as applying'only to those cases in which one, and not both, of the parties appeared on the record in such capacity; that section 4 of the act merely narrowed the effect which the proviso of section 3 would otherwise have; and that the sole purpose of the supplement of 1880 was to still further narrow the effect of that proviso. The necessary result of this construction of the act was that, where both parties to the record appeared in a representative capacity, each was fully qualified as a witness in his own behalf.

By the revision of 1900 section 3 of the act of 1874 was reenacted, so far as it qualified parties to the record as witnesses.

The proviso, however, together with the modification thereof contained in section 4, was repealed, and, in its place, there was substituted by the legislature a paraphrase of the supplement of 1880, which appears as section 4 of the revised act.

It is true that the language used in the new section 4 is not in the form of a proviso, and is not especially apt as expressing a limitation upon the absolute removal of disqualification contained in section 3; but, unless it be given that construction, the new section is entirely without force. In itself it removes no disqualification. Although, in its first clause, it declares that a party to a suit may be sworn and examined as a witness, notwithstanding any party thereto may sue or be sued in a representative capacity, that right had already been conferred, in absolute terms, by section 3, which, as is shown in Haines v. Watts, permits any party to a suit to be sworn and examined as a witness, without regard to whether or not his adversary appears in a representative capacity. This being so> unless the proviso in section 4 is a limitation upon the absolute right to testify conferred upon a party to the record by section 3, that absolute right still remains, notwithstanding the proviso. It is obvious that this was not the intent of the legislature—that a party whose adversary appeared in a representative capacity was not intended to be permitted to testify concerning transactions with, or statements by, his adversary’s decedent, except under the conditions set out in the proviso. We conclude therefore that, by the true construction of the act, as it now appears on the statute-book, no person is disqualified as a witness by reason of his being interested as a party to the suit, and that such party may be sworn and examined as a witness, notwithstanding that either one or both of the parties appear on the record in a representative capacity; but that, where this is the case, the party offering himself as a witness shall not be permitted to testify concerning any transaction with, or statement by, the decedent of his adversary, unless his adversary first offers himself as a witness and testifies to a transaction of, or statement by, such decedent.

. There was error therefore in permitting the defendant Elmer J. Hulings to testify concerning transactions with, and statements by, the complainant’s intestate. -

But, although this testimony should have been excluded, its admission will not justify a reversal of the decree appealed from. Disregarding it entirely, we consider that the other evidence, submitted to the court, below, amply justifies the conclusion reached by the vice-chancellor.—that Mrs. Hulings was mentally sound at the time of making the transfer of the promissory notes in question to the defendants, and that she was not unduly influenced by them in the matter, but made the transfer of her own free will.

The decree appealed fróm should be affirmed.

For affirmance—The Chiee.-Justice, Van Syckel, Dixon, Fort, Uarretson, Hendrickson, Pitney, Bogert, Adams, Vredenburgh, Voorhees, Vroom—12.

For reversal—Hone.


source: Caselaw Access Project

author: Collins, J.

license: Public Domain

text:
    James P. Hall Incorporated Company v. The Mayor and Aldermen of Jersey City et al.
    [Filed November 17th, 1902.]
    ' 1. Under “An act to secure the payment of laborers, mechanics, merchants, traders and persons employed upon or furnishing materials toward the performing of any work in public improvements in cities, towns, townships and other municipalities in this state,” approved-March 30th, 1892 (Gen. Stat. p. 2078), where there are divers claims by notices filed under the act, andi one of the claimants brings an action to enforce his claim against the fund, only such costs as are incurred in litigating the claims should be awarded against the unsuccessful claimant or claimants.
    2. Certain other provisions of that act discussed.
    On appeal of William R. Whyte, the Union Stone Company and the Commonwealth Roofing Company from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 17 Dick. Ch. Rep. 489.

      Mr. Henry Ewald, for the appellants.

      Mr. Charles E. Hendrickson, Jr., for the respondent.
   The opinion of the court was delivered by

Collins, J.

This is an appeal from a decree upon a bill filed by the complainant to enforce its claim under “An act to secure the payment of laborers, mechanics, merchants, traders and persons employed upon or furnishing materials- toward the performing of any work in public improvements in cities, towns, townships and other municipalities in this state/.’ approved March 30th, 1892 (Gen. Stat. p. 2078), against a fund consisting of a balance due from the mayor and aldermen of Jersey City under a contract for the erection of an engine-house.

The defendants were the city, the contractor and divers other claimants against the fund. The decree awarded the entire fund, less the taxed costs of the city, to the complainant and gave the complainant costs against the other claimants, who have appealed to this court, on the merits of the controversy and also* on the question of costs.

The determination in the court below that the complainant was entitled to the entire fund in dispute, less the taxed costs of the city', was correct. The reasons given by the learned vice-chancellor for such determination meet the unanimous approval of this court except in one particular, as to which there is among its members a difference of opinion as to the true interpretation of the following provisions of the act in question:

“Sec. 1. That any person or persons who shall hereafter * * * in pursuance of or in conformity with the terms of any contract for any public improvement, made between any person or persons and any city, * * * for the making of any public improvement, perform any labor or furnish any material toward the performance or completion of any such contract made with said city, * * * on complying with the second section of this act, shall have a lien for the value of such labor or materials or either upon the moneys in the control of the city * * * due or to grow due under said contract'with said city * * * to the value of such claim or demand, and these liens may be filed and become an absolute lien to the full and fair value of all such work and materials, to the extent of the amount due or to grow due under said contract in .favor of every person or persons who shall be employed or furnish materials to the person or persons with whom the said contract with said city * * * is made, or the subcontractor of said person or persons, their assigns or legal, representatives.
“Sec. 2. That any time before the whole work to be performed by the contractor * * * is completed or accepted by said city * * * and within fifteen days after the same is-so completed or accepted, any claimant may file * * * notices stating the residence of the claimant, verified by his oath or affirmation, stating the amount claimed, from whom due, and, if not due, when it will be due, giving the amount of the demand after deducting all just credits and offsets, with the name of the person by whom employed,' or to whom the materials were furnished ; also, a statement of the terms, time given, conditions of his contract and also that the labor was performed or materials were furnished to the said contractor and were actually performed or used in the execution and completion of the said contract with said city * * * but no variance as to the name of the contractor shall affect the validity of the said claim or lien.”

There is ambiguity in this language. The learned vice-chancellor was of opinion that the contract intended, particulars of which must, by the requirement of the second section, be stated in the notices of lien, is the contract with the municipality. Some of the members of this court, including the writer of this opinion, think the contract with the person filing the notices is the one intended; in other words, that the proper grammatical antecedent in the section of the word “his” is the word “claimant” first occurring therein.

The statute is identical with that of April 14th, 1891 (Gen. Stat. p. 2076), except in its extension to all municipalities of what was before limited to cities. The original act is a copy of chapter 315 of the laws of 1878 of the State of New York, and is very crude legislation, especially as applied to- the policy of this state, and has before now given trouble to our courts. Delafield Construction Co. v. Sayre, 31 Vr. 449. I have found no New York decision on the point in question, but it is very suggestive that when on May 16th, 1892, a few weeks later than our like extension, the legislature of New York extended the provisions of the act of 1878 to all municipalities, the word his, which is the crux of the question, was amended so as to read the. In that state the Lien law has -since been entirely recast. Laws 1897 ch. 418.

In the case in hand the- successful claimant had sufficiently identified the city contract, and, as the testimony shows that there were no “terms, time given or conditions” of any contract by it or by its assignor with the city’s contractor, there were none to be stated.. The lien claimed was for materials furnished on orders given day by day, and, subject to a previous quotation of prices, rested entirely on a quantum valebat. It is not necessary, therefore, to interpret or construe this- ambiguous statute, and, as other controversies involving it may be pending, it would be unwise to do so. For the future, prudent counsel will advise a course that will be safe under either view of the provision, and doubtless, in the pending revision of our statutes, the uncertainty will be remedied.

It may not be improper to add that if, in declaring the relation of the words “their assigns or legal representatives,” occurring in the first section of the act, the learned vice-chancellor meant to intimate that the legislature gave any lien except in favor of a person or persons having direct contract relations with the municipality’s contractor, his assigns or legal representatives, or standing in the right of a person having such a relation, we do not give our approval to that dictum. Whatever may he the meaning or relation of the word “subcontractor,” occurring only in the first section, it seems plain, from the provisions of the statute as a whole, that the Hen is given only for work or materials furnished to the contractor with the municipality or, under section 14, to his assigns or legal representatives.

The award of costs against the appellant was, we think, unwarranted. Section 11 of the act provides that costs “shall be awarded to or against the plaintiff or defendants, or any or either of them, as may be just.” All claimants were necessary parties to the action, and it would be unjust to mulct any or either of them in costs, for no other reason than that notice was given to the city of a just claim that was rendered unavailable merely because either like notices, previously given by other claimants in the same situation, or later notices, given by the favored class of laborers, had created paramount liens.

The costs of the bill, the' proceedings to get jurisdiction and the decree are inevitable in any case. Where a claimant, in the litigation invited, asserts his own claim and unsuccessfully contests that of any other claimant, he should bear the costs of that litigation, but nothing more. In other words, the expenses he, by his resistance, incurs, including subpoenas and witness’ fees incurred by his adversary, should be borne by him, but the normal costs should be paid out of the fund.

The decree therefore in this case is affirmed, except as to the award of costs against the appellants, and the record will be remitted to the court of chancery to have order made in that respect in accordance with this opinion.

The appellants are entitled to costs in this court, but inasmuch as they could have presented the only question on which they prevail by printing, under rule 18, an abridgement of the state of the ease at a trilling expense, no costs of printing will be allowed them.

For affirmance—The Chief-Justice, ' Van Syckel, Dixon, Collins, Eort, Garretson, Hendrickson, Bogert, Vreden-BURGI-T, VOORHEES, VROOM—11.

For reversal—Hone.


author: Adams, J.

text:
    Rufus W. Smith, complainant and respondent, v. The Delaware and Atlantic Telegraph and Telephone Company, defendant and appellant.
    [Filed November 18th, 1902.]
    1. A person cannot by his own mere assertion prove that he is the agent of. another.
    2. A person may by permission, recognition or acquiescence occasion a reasonable inference that another is his agent.
    On appeal from a decree advised by Yice-Chancellor Reed, whose opinion is reported in 18 Dick. Ch. Rep. 93.

      Mr. David J. Pancoast, for the appellant.

      Mr. William Early, for the respondent.
   The opinion of the court was delivered by

Adams, J.

The bill in this suit was filed for a mandatory injunction to compel the removal of certain wires strung over the sidewalk in front of the premises of complainant without his consent. The bill alleges that the complainant owns in fee-simple and is possessed of a certain. described tract of land in the borough of Elmer, in the county of Salem, extending to the middle of Main street, and that the defendant, a foreign corporation, without warrant of law or the permission of complainant, and against his written and verbal protest, strung wires, to be used for the defendant’s private business and profit, “over the property .and pavement of your orator on Main street,” and thereby imposed upon complainant’s land, without compensation, a servitude additional to the public easement in the street, and so did complainant irreparable injury.

The defendant’s answer denies that it has strung wires over the property of the complainant, as in the bill alleged; denies that it has m> authority or power to do business in the State of New Jersey; denies that it is not doing a public business and that it has done irreparable damage; and alleges that the grievances complained of are cognizable at law, and prays the same benefit of this defence as if it had demurred.

At the hearing before the vice-chancellor the complainant proved title and possession, the stringing of the wires, without his consent and against his verbal protest, over his sidewalk, within eight feet of his building, and that ringing noises proceed from the wires and disturb him. It was admitted that the defendant is a New York corporation.

The complainant further testified that before the wires were strung he wrote and mailed to the defendant a letter forbidding it to string wires over his property.

Dp to this point there was nothing to connect the defendant with the acts complained of. The complainant’s solicitor then testified, without objection, as follows:

“Subsequent to the erection of the wires at Elmer, and prior to the bringing of this suit to ascertain whether the Delaware and Atlantic Telegraph and Telephone Company actually erected the wires on Mr. Smith’s property at Elmer, I called at the office of the company in Philadelphia. I was shown to the office of the general manager, Mr. West-brook, and had a conversation with him, in which conversation Mr. West-brook told me he was the general manager of the company and authorized to speak for the company; that it was the Delaware and Atlantic Telegraph and Telephone Company who had erected the wires on the property of Mr. Smith in Main street, in Elmer, and that he received a letter from Mr. Smith forbidding the placing of the wires there and asked me whether a money consideration would settle the matter.”

This cross-examination then followed:

“Q. Is that the only interview you ever had with Mr. Westbrook?
“A. That is the only interview I ever had with Mr. Westbrook.
“Q. And that is all you knew about his connection with the company?
“A. That is all I knew.”

The defendant offered no evidence, and rested the ease on the single defence that the testimony failed to show that it caused the said wires to be strung and maintained. The vice-chancellor dealt only with this question, and to this question our inquiry is confined.

A person cannot by his own mere assertion prove that he is the agent of another. A person may, by permission, recognition or acquiescence, occasion a reasonable inference that another is his agent. Did the -evidence in this case tend to prove that Mr. Westbrook was an agent of the defendant, and that his declarations would bind it? Mr. Early called at the office of the company in Philadelphia and was -shown, no doubt, in answer to some inquiry, to an office purporting to be that of the general manager. There he found Mr. Westbrook installed, assuming to act as general manager, and already informed about the letter that the complainant had written to the defendant. Which is the more natural supposition, that Mr. Westbrook was an intruder or usurper, who had possessed himself in some unauthorized way of the contents of the complainant’s letter, or that he was acting with the knowledge and by the direction of the defendant ? The mind readily accepts the latter alternative. There was thus, evidence tending to prove agency, aside from Mr. Westbrook’s averment that he was agent, and this evidence made his declarations competent, for they were admissions of the defendant by the mouth of one who appeared by uncontradicted proof to be its agent, made in the conduct of business entrusted to him. Ashmore v. Penn. S. T. and T. Co., 9 Vr. 13. The admission of a party to the suit is excepted from the general rule that excludes heresay evidence.

The vice-chancellor advised a mandatory injunction, but seems to have thought that the testimony as to Mr. Westbrook’s declarations was of doubtful competency, and that it was-legalized only by the failure of the solicitor of the defendant to object to it. We concur in the vice-chancellor’s result, but put our decision on the ground that the situation itself afforded evidence tending to prove Mr. Westbrook’s -agency, and so laid a foundation for testimony as to his admissions.

The decree is affirmed.

For affirmance—Ti-ie Chiee-Justice, Van Syckel, Dixon, Collins, Fort, Garretson, Hendrickson, Pitney, Bogert, Adams, Yredenburgh, Voori-iees, Yroom—13.

For reversal—None.


author: Veedenbubgi-i, J.

text:
    Helene Lutjen et al., appellants, v. Henry E. Lutjen, respondent.
    [Filed November 17th, 1902.]
    1. A legatee, aged twenty-three years and upwards, being at that age entitled to be paid a balance of a legacy (which had been reduced in consequence of the birth of after-born children of the testator) on October 21st, 1891, after the final accounting of the administratrix, C. T. A., of the estate of the deceased, in the orphans court, and a settlement with her, executed to her his formal deed of release, reciting, inter alia, that it was meant for an absolute release of all his right to the real and personal estate of the deceased, and then received from her a considerable payment of money, not apparently inadequate, estimated by the surrogate (to whom the parties had left the calculation) to be the correct balance due upon the legacy. He had a full understanding of the contents of the instrument before he signed it and was under no legal or mental, or other disability or impediment. On May 28th, 1901, nearly ten years afterwards, he filed his bill of complaint and commenced the present suit to avoid the release, alleging that it had been obtained from him by the fraud of the administratrix, but not alleging any mistake, either mutual or unilateral. Fraud was not shown, but the amount of the consideration, which depended on doubtful questions both of law and of fact, may have been inadequate.—Held, that he had been guilty of laches sufficient to defeat his suit.
    2. The rule, as declared by Vice-Chancellor Green, in the third headnote to the case of Tynan v. Warren, reported in 8 Dick. Ch. Rep. 313, “that laches in bringing suit will deprive one of his remedy is not applied, unless such neglect has so prejudiced the other party, by loss of testimony, or means of proof or changed relations, that it would be unjust to now permit him to enforce his rights,” criticised and distinguished.
    3. Lapse of time alone is deemed to be a sufficient ground of estoppel in cases like the present, when the court cannot feel confident of its ability to ascertain the truth now as well as it could when the subject for investigation was recent, and before the memories of those who had knowledge of the material facts have become faded and weakened by 'time. To constitute estoppel of this description, it is not essential that any actual loss of testimony through death or otherwise, or means of proof or changed relations, to the prejudice of the other party, should be proved to have occurred.
    On apjieal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 18 Dick. Ch. Rep. 391.

    The bill of complaint was filed May 28th, 1901, praying the court of chancery to declare void a certain deed of release, dated October 21st, 1891, executed by the complainant to defendant, Helene Lutjen, as administratrix cum testamento annexo of J". H. Lutjen, deceased, charging that she obtained same from him by fraud, and asking that she be decreed to account to and pay him an alleged unpaid balance of money due him beyond, and in addition to, the $5,000 already paid and mentioned as the consideration for the release, and that such balance be charged upon the real estate of the deceased. The bill sets forth a copy of the release, in which are recited the following pertinent facts:
    “Know all men by these presents, Whereas, John H. Lutjen, late of the county of Hudson, deceased, in and by his last will and testament, which has been legally proved, did give and bequeath to Henry Edward Lutjen, his son, the sum of ten thousand dollars, and all the rest, residue and remainder of his estate to Helene Brummerloh, who afterwards • became his wife; and whereas, two more children were born to John H. Lutjen, deceased, subsequent to the making of the said last will and testament of said deceased, and for which children no provisions were made by said deceased, in and by his said last will and testament; and whereas, letters of administration with the will annexed of the estate of said deceased, were issued to Helene Lutjen; and whereas, the said administratrix filed an account of the administration of said estate in the surrogate’s office of the said county, from which said account it appears that the balance of personal estate remaining in the hands of said administratrix is the sum of twelve thousand two hundred and sixty-three dollars and twenty-one cents ($12,263.21),.out of which sum there is to be paid to the children of the testator, born subsequent to the date of said will, four-ninths thereof; and whereas, Henry Edward Lutjen, above named, has now attained the age of twenty-three years, the date of which legacy aforesaid is to be paid. Now in consideration of the premises and of the sum of five thousand dollars, to me in hand paid by Helene Lutjen, the administratrix aforesaid, the receipt of which is hereby acknowledged, I, Henry Edward Lutjen, hereby remise, release .and discharge, and by these presents have remised, released and discharged Helene Lutjen and her heirs and assigns, and the estate of John J. Lutjen, deceased, of and from all claim and demand which I ever had or now have, or which I or my heirs or assigns hereafter can or may have against her, the said Helene Lutjen, or the estate of said John H. Lutjen, deceased, by reason of the legacy of ten thousand dollars given and bequeathed to me in and by said will of the testator, or for or by reason of any other claim that I may have against said estate under said will or for any other cause whatsoever, this release being meant for an absolute release of all my right, title and interest to the estate of John S. Lutjen, deceased,”

    The signature and seal of complainant next follows, together' with a certificate of acknowledgment endorsed upon the paper-in the statutory form required for recording deeds, signed by the surrogate (the officer who took it) certifying that he had first made known the contents of the release to the complainant. The release was then recorded in the surrogate’s office. It is alleged in the bill of complaint that at the time of the payment to the complainant of the $5,000 named as the consideration for the release he was entitled to a much larger sum, $8,000 being stated to have been, at least, the sum then due him from the estate. The particular representations charged in the bill to have been untrue and false, upon the strength of which it is claimed the release was obtained, are that the administratrix stated to complainant, on some occasion during the summer of the year 1883—some eight years before the date of the paper—no circumstance of 'the occasion being given—-that by reason of the birth of his half-brother and half-sister, after the making of the will, it became void, and that ho (complainant) would take the same share of the estate as if his father had died intestate, she (defendant) being entitled to one-third, and the balance to be divided among the children. And that on October 21st, 1891, she stated to him that she was now ready to pay him his share of his father’s estate, and that it amounted to $5,003, and directed him to go to the surrogate’s office and there sign a paper, which he thereupon did. While it is, in the bill, charged that the release was obtained from him by the fraud and covin of the administratrix, it is not charged that she made those representations with intent to defraud the complainant. There is no' charge in the bill that he did not fully understand the object and terms of the instrumeat at the time he executed it, nor that there was any want of mental capacity on his part, nor that he was under any disability at any time, nor that any mistake, either mutual or unilateral, was made by the parties. No prayer is made for the rescission, reformation or the correction of the instrument so that it should express the correct consideration which the bill claims should have been inserted, and no' tender or offer to restore the consideration, which the bill admits the complainant received at the giving of the release, has been made by the bill or elsewhere in the case. At the hearing there was no proof of any mental or other disability on the part of the complainant at any time, nor that he did not comprehend fully the scope and language of the release before he signed it. lie was sworn at length as a witness, and testified that he read a part of the release (what part he does not say), which he says the surrogate, at his office, left with him alone in the room, to be read by him. He did not deny that he was fully apprised of its contents on the occasion of its execution by him. His testimony shows that he was twenty-three and one-half years old and upwards at this time, having been born in March, 1868; that he had been engaged, since he became sixteen years old, as a clerk in various kinds of business after his father’s death in the year 1883. He went to Europe (to Germany) alone in 1883, and, on returning, went again into business, first in Jersey City and afterwards in New York City. His business abilities were such that a salary of only $2 per week, at first, increased to $12 per week in the year 1891. His answers to questions asked of him on the witness-stand, involving dates of past transactions, the various businesses in which he had been engaged, and other material events, were free from confusion or mistakes of thought, and indicate a mind of a least average intelligence. At the time of the execution of the questioned paper, no counsel or advisers had been employed by either party to it (except the surrogate, who was employed bjr the administratrix). It was drawn by the surrogate at the request of the administratrix, and he inserted the consideration then estimated by him to be the correct sum due complainant. The only evidence of alleged misrepresentation by the administratrix was that of the complainant, who testified as follows:

      “Shortly after my father’s death my stepmother told me that my father had made a will in which he had willed me $10,000, and the balance was to go to her; but that will was made before the other two children were born, and naturally that will was no good, and according to law she would be entitled to one-third, the balance to be divided among the children, and that my share would be $5,000, and that the other children would receive their share when the youngest became of age; that was the boy; that was all they told me about it.”
    The witness added that she never said anything to him after-wards about it, and that he did not believe the subject was ever brought up again until the time in 1891, when his stepmother, he said, told him “to go down to the surrogate’s office and sign a paper.” Upon this subject the administratrix testified that when the complainant became twenty-three years of age she went to the surrogate, and not to a lawyer, and that she'wanted to settle with the complainant, and to give him what he ought to have, and the surrogate estimated how much, and “made out” the $5,000, and that she gave that sum and more to the complainant. She also stated that she went with the complainant to the surrogate’s office, and that the surrogate read the paper to him, and the will was there, and he (the surrogate) said (and twice repeated it) to him; “Do you understand ?” and the latter answered “Yes.” The differences between the statements of the parties as to the facts surrounding the execution of the release do not seem to have been of sufficient moment to the controverted issues to have suggested to either counsel a resort to the testimony of the surrogate for other light. He was not sworn.
    The proofs further show that the administratrix had been the guardian of the person and property of the complainant until he reached the age of twenty-one, and that he was boarding with-her at the date of the release.
    Henrietta Lutjen (one of the testator’s children) on Fovernber 22d, 1900, conveyed to said Helene Lutjen, by deed of bargain and sale, dated on that day, portions of some of the lots of land and premises of which said John H. Lutjen died seized.
    The decree below finds that the complainant was entitled, at the giving of the release, to a sum of about $2,000 in excess of the sum then received by him, and thereupon adjudges and decrees that the release should be made void, and that the administratrix, upon the complainant’s tendering her a release of all his right in the estate, should pay him such excess, together with interest thereon from October 21st, 1891, and costs of suit. Upon the head of fraud the decree is silent, nor does it find, expressly, nor except by implication, that there was any mistake made by the parties, or either of them, on the occasion of the delivery of the release.

      Mr. Charles L. Corbin, for the appellant.

      Mr. Maximilian T. Rosenberg and Mr. Theodore Rurode, for the respondent.
   The opinion of the court was delivered by

Veedenbubgi-i, J.

(after stating the facts as above).

The absence from the decree appealed from of any finding of the jurisdictional ground taken for invalidating the release, seems to justify a brief reference to the subject of jurisdiction. The right to an accounting in equity does not exist in favor of the complainant unless and until his deed of release is swept from his path. While that remains, his way is barred. Pie is, until it is displaced, effectually estopped by its clear and explicit terms from enforcing any right he might otherwise possess to a further share in the real and personal property of his testator. The share or interest which prior to the delivery of his lease was vested in him jointly with the defendant, became, after its delivery, the separate and absolute property of the defendant. If, under the evidence, there was no jurisdictional footing to set ■aside lire release, his bill, it will be conceded, should have been dismissed. There being no mutual mistake, alleged, there could have been no relief granted for the reformation of the instrument on that ground, as this court has repeatedly held—Green v. Stone, 9 Dick. Ch. Rep. 387; Herron v. Mullen, 11 Dick. Ch. Rep. 839—nor has the complainant placed himself, by the form of his bill, in a position to ask for a rescission on the ground of a mistake on his part. See cases, supra. The sole frame of the bill is that the release was obtained from the complainant through the exercise of actual fraud by the defendant, but the decree does not so find, nor does the evidence justify such a finding. In the proofs there can be found no trace of positive or designed fraud in the entire history of the transactions between the parties. If fraud can be predicated at all, it is but constructive, and such as arises, presumptively, only from the confidential relationship of the parties. The utmost that can be said in behalf of the view that the release was procured by fraud is, it seems to me, that owing in part to the confidential and friendly relationship of the parties, in part to the absence of independent and competent legal advice, as well as owing to the inherent difficulties, both in law and fact, of the computation of the balance due him, the complainant was induced to make the settlement and execute the instrument of release for a less sum .of money than was then his due. The administratrix, on her part, for like reasons, ran the equal risk of paying to the complainant more than was his due. It would be strange, indeed, if the administratrix intended to profit by a false statement made more than eight years before the complainant was expected to act upon it. She gave him, according to- the complainant’s own testimony, from the year 1883 until the year 1891 to think about the $5,000 and to make the calculation of the balance due him, during which time he could, of course, consult his friends or any lawyer upon the subject. He thus admits he had notice for a period of not less than eighteen years before he brought his suit and for more than twelve years after he reached his majority, and for nearly ten years since he executed his release, that the claim made then, as well as now, by tiróse whose pecuniary interests he must have known were opposed to his own, was that $5,000 constituted the correctly calculated amount of his share. He was thus early, openly and frankly dealt with by the defendants, and put upon his own inquiry during that long period of time. His failure to investigate for-himself or to make inquiry of others whose interests were not adverse to his own, and who were competent to advise him, was his own affair and his own negligence (if such, indeed, it has turned out to- have been). A more deliberate opportunity to an interested party to arrive at a correct result could scarcely have been given. Even if it be admitted that he has disclosed the whole truth as to the information. he obtained, prior to the date of the release, respecting the sum of money due him, certainly it would seem that he should be held bound by his subsequent deliberate submission of the matter to the surrogate. After the surrogate’s calculation and decision, when the items of the account, involving the prices of board, the periods of time and the value of services rendered (and many small items of expenditure which had occurred during the years since the father’s death in 1883), and when all the facts were fresh and easily ascertainable, such decision and its acceptance by the complainant without objection should be regarded at this late day as final. The various methods of calculation of the complainant’s share;, as claimed by the respective parties under section 21 of our statute concerning wills, and referred to at length by the learned vice-chancellor in the opinion below, show some of the difficulties of the computation. The parties evidently adopted the estimate of the surrogate because they both undoubtedly believed it to be correct. For the accurate adjustment of all these old items the court can now have only the assistance of the fading memory of witnesses, and cannot feel satisfied of its ability to deal justly with the situation as it really existed. A finding of these facts now by this court can hardly be more than a conjecture, a condition of judicial uncertainty that cannot justify the setting aside of the formal settlement of 1891.

The conjectural character of the decree below is evident from the following terms, used in the conclusion in denying an accounting urged by the defendants, viz.: “But I think that an accounting must be refused for the simple reason that a reperusal of the evidence satisfies me that it is impracticable to take it. There are no data in existence from which a master could arrive at any just conclusion capable of being stated in dollars and cents. * * * The result is necessarily founded somewhat upon conjecture.”

But there is a further ground for the rejection of the claim of the complainant by a court of equity. Iiis release has stood unchallenged by its author upon the records of the titles to property in the public office for the long period of nine years and almost eight months. Lapse of time alone is deemed by the authorities to be a sufficient ground of estoppel in cases like the present, when the court cannot feel confident of its ability to ascertain the truth now as well as it could when the subject for investigation was recent and before the memories of those who had knowledge of the material facts have become faded and weakened by time. To constitute estoppel of this description it is not essential that any actual loss of testimony, through death or otherwise, or means of proof, or changed relations, to the prejudice of the other party, should have occurred. But the estoppel arises because the court cannot, after so great a lapse of time, rely upon the memory of witnesses to reproduce the details that entered into the final execution of the instrument of settlement. The case in hand is, as already noted, a striking illustration of the importance of adhering to this rule. It is held by a long line of controlling authority, both in this state and elsewhere, that suitors who seek to repudiate their deeds of release are bound to use reasonable diligence, after the delivery of the instruments of settlement, both'to ascertain their rights and to enforce them in courts of equity. The old equitable maxim, Vigilantibus non dormientibus coquitos subvevui, is applied her. Equity requires this diligence, in analogy to the statutes of limitation at law, for the security of titles to property; to guard against the danger of the loss of evidence by the death, failure of memory or absence of witnesses and proofs, and for other important considerations. There has been no inflexible rule adopted by the courts fixing any exact period of time as a bar to relief in such cases. Necessarily each case must rest upon its differing circumstances. Under what variety of situations our courts of equity have refused relief to litigants who, being-under no legal disabilities, have not used what the courts have regarded as reasonable diligence in challenging their deliberate seals to like instruments, will be seen by reference to the following- cases:

In Doughty v. Doughty, 3 Halst. Ch. 643, in an opinion read by Chief-Justice Green, where the instrument of settlement, sought to be avoided for inadequacy of consideration and fraud (charges of unsoundness of mind of the complainant also being made), was executed in July, 1833, and the bill.was filed in December, 1845—a period of about twelve years—this court held that the objection of lapse of time was fatal to the relief sought, in whatever form the case might be presented.

In Gifford’s Administrator v. Thorn, 1 Stock. 702, where the deed of assignment and release attacked was of a residuary estate worth a sum very largely in excess of the amount actually received and mentioned in the paper, this court held that it was not reasonable diligence for the party, “where there is no disability and no impediment to the vindication of his rights, to lie passive for twelve years and to call on a court of equity for aid, when the lapse of time and his own laches may have deprived his adversary of the means of defence;” and the complainant’s bill was dismissed.

In Trustees of East Newark Co. v. Gilbert, 1 Beas. 78, where the bill was filed (to set aside a deed of conveyance, on the ground that it was fraudulently procured) on the 5th of October, 1857, “nearly four years after the conveyance,” Chancellor Williamson held that the injunction should be dissolved, because the complainants should have filed their bill promptly.

In Brown v. Mutual Benefit Life Insurance Co., 5 Stew. Eq. 809, in affirming a decree advised by Vice-Chancellor Van Fleet denying the defendant’s efforts to repudiate his deed, this court held that if a party would avoid a deed on the ground of fraud or forgery he is required to interpose the objection promptly. The effort in this ease was to invalidate a power of attorney and mortgages executed about ten years prior to suit brought to question those instruments, and this court held the delay was too great.

In Swayze v. Swayze’s Executors, 10 Stew. Eq. 180, it was held, in an opinion filed by Vice-Chancellor Bird, that “where matters of account were equally within the knowledge of both parties, and there was no surprise, but considerable deliberation, and complainant allowed the settlement to stand for five years unquestioned, the court will not disturb it.”

In McCartin v. McCartin’s Administrators, 18 Stew. Eq. 273, this, court, upon the point under discussion, affirmed the decree advised by Vice-Chancellor Van Fleet dismissing the complainant’s bill—reported in 16 Stew. Eq. 323. This bill was filed in July, 1886, about nine years after the sale of the mortgaged premises. The objects of the suit, over which the controversy principally arose, were to procure a settlement of the estate of deceased and a division of the testator’s property among his beneficiaries. The vice-chancellor held that the persons in whose behalf the claim was made had delayed their suit too long.

In Coles, Administrator, v. Vanneman, 6 Dick. Ch. Rep. 323, on appeal from a decree advised by Vice-Chancellor Bird, dismissing complainant’s bill for laches, this court affirmed the decree and held that eight years’ delay—-from August, 1877, to August, 1885—by parties interested, in seeking redress from a receipt in full which was endorsed upon a mortgage at the time of its surrender by the owner, resulting in its cancellation, amounted to inexcusable laches. The suit was brought by the representative of the surrenderer against the surrenderee alone, no rights of third parties having intervened. The allegations of the bill resembled those in the present case in that they charged that the mortgage, with its endorsement, was obtained from the owner by unfair means. While the court expressed doubt as to the weight of evidence upon a question of the fairness of the transaction in the procuration of the receipt in full, in view of the mental infirmities of the owner, it held that the failure of himself and his family, who knew about the transaction, to question the matter by suit for so long a period was fatal. These adjudications, it will be noted, are based chiefly upon the idea of the injury that .might have ensued from the loss of testimony through the impairment of memory of witnesses and other causes by reason of delay, and not upon evidence of any actual loss of testimony or proofs.

The case of Tynan v. Warren, 8 Dick. Ch. Rep. 313, remains to be considered. Vice-Chancellor Green there held that “the rule that laches in bringing suit will deprive one of his remedy, is not applied unless such neglect has so prejudiced the other party, by loss of testimony, or means of proof, or changed relations, that it would be unjust now to permit him to enforce his rights.” While the decree in this case was reversed, upon appeal, by this court (see 9 Dick. Ch. Rep. 402) upon other grounds, the point of laches was not considered nor decided by this court. But there will be found no conflict of decision between that case and the present. By reference to the questions presented for decision, it will appear that Vice-Chancellor Green regarded the complainant there as entitled to enforce an express trust (although this court afterwards held that it was a resulting trust), and he rejected the defence of lapse of time, citing with approval the expression of Mr. Justice Story in Oliver v. Piatt, 3 How. 333, that “the mere lapse of time constitutes of itself no bar to the enforcement of a subsisting trust.” He viewed the ease he was deciding as involving, he said, “an active, subsisting trust,” and consequently, as controlled by his citation just quoted, that mere lapse of time constituted no bar to its enforcement; and this court, upon appeal, in the opinion read by Mr. Justice Dixon, considered tire ease as controlled by the character of the trust shown, expressly stating in his opinion that he had not adverted to the question of laches in the determination of the issues of that controversy. No feature of a subsisting or other trust applies to the case at bar. But it is not intended by what has been here written to construe the expression in the third head-note of “loss of testimony” as referring necessarily to proof of actual loss, as distinguished from inferential loss. Regarding such expression as meaning any loss of testimony, whether actual or inferential, the rule declared in that case is not opposed to the present holding.

For the reasons stated, I think the decree below should be reversed and the bill dismissed.

For reversal—The Chiee-Justice, Van Syckel, Dixon, Collins, Foet, Garretson, Hendrickson, Bogert, Vreden-BURGII, VOORI-IEES, VrOOM-11.

For affirmance—None.


author: Fort, J.

text:
    William H. Jones et al., executors, appellants, v. William Watford et al., respondents.
    [Filed November 18th, 1902.]
    1. A will contained tbe following residjsiry clause: “All the rest, residue and remainder of my estate, real and personal, whatsoever and wheresoever found, I give and bequeath unto my executors, hereinafter named and their successors in trust, for the purchase of books upon the Philosophy of Spiritualism, not sectarian, or of any creed, Church or Dogma, but of free, liberal bearing. Said books to be placed by my executors where they can be free to all who desire to think for themselves, and who are seeking for the truth from the true and living God, for I believe in one God, one Church and one Country, first, the great unknown, second, the whole human race, as one family, third, the whole Globe the home of all nations, that is my Trinity.”—Held, that the residuary gift is expressed in terms sufficiently certain to enable it to be carried into effect.
    2. Where, under a last will and testament a testator bequeaths money for a charitable use and therein creates a valid trust to effectuate it, and casts upon his executors, or the survivor or successors of them, a duty to discharge the trust, they become, in the execution of the trust, trustees of the fund bequeathed and are charged with its proper application under the will.
    .3. The sole question in such a case is whether the will gives the legal estate to the trustees and whether the person or corporation named in the will is competent to take.
    On appeal from a decree advised by Vice-Chancellor Grey, whose opinion is reported in 17 Dick. Ch. Rep. 339.

    Thomas B. Watford died testate October 27th, 1899. His will was duly probated. After making certain bequests, he devised as follows:
    “All the rest, residue and remainder of my estate, real and personal, whatsoever and wheresoever found, I give and bequeath unto my executors hereinafter named and their successors in trust, for the purchase of books upon the Philosophy of Spiritualism, not sectarian, or of any creed, Church or Dogma, but of free, liberal bearing. Said books to be placed by my executors where they can be free to all who desire to think for themselves, and who are seeking for the truth from the true and living God, for I believe in one God, one Ohurch and one Country, first, the great unknown, second^ the whole human race, as one family, third, the whole Globe, the home of all nations, that is my Trinity.”
    The last clause of his will reads, in part, as follows:
    “I nominate, constitute and appoint Francis J. Keffier, Esq., William H. Jones and Joseph O. S-hoiber, the executors of this my last will and testament. Should any of my executors die or refuse to act, it is my will that the survivor or survivors shall select an executor to fill the place of the one deceased or refusing to act, as it is my desire that there shall be at least two executors at all times.”
    His executors doubted whether the trust bequeathed to them was a valid one, and the heirs-at-law claimed that it was invalid, because indefinite, and that the residuary estate passed to them as if the testator had died intestate.
    The bill was filed by the executors, and, among other things, prayed that the court might declare whether the devise of the residue of the estate was legal and valid.

      Mr. Robert 8. Glymer, for the appellants.

      Mr. Joseph T. Bidder, for the respondents.
   The opinion of the court was delivered by

Fort, J.

In this case there are cross-appeals. The decree of the court of chancery sustains the validity of the residuary clause of the last will and testament of Thomas B. Watford, deceased, the provisions of whose will, relating to the questions before us, are set out at the head of this opinion, but decrees that the executors named in the will “are not capable to take upon themselves and discharge the duties created by the said clause.”

This court affirms the decree appealed from wherein it sustains the residuary clause of the testator’s will, for the reasons given by "Vice-Chancellor Grey in Jones v. Watford, 17 Dick. Ch. Rep. 339.

So much, of the decree, however, as adjudges that the executors named in the will are not capable of taking upon themselves and discharging the trust, we think, is erroneous and should be reversed.

So much of the residuary clause of the testator’s will as .need be quoted is as follows:

“All the rest, residue and remainder of my estate, real and personal, whatsoever and wheresoever found, I give and bequeath unto my executors hereinafter named and their successors in trust, for the purchase of books upon the Philosophy of Spiritualism, not sectarian, or of any creed, Ohurch or Dogma, but of free, liberal bearing. Said books to be placed by my executors where they can be free to all,” &e.

By the last clause of his will he names three executors, and then provides as follows:

“Should any of my executors die or refuse to act, it is my will that the survivor or survivors shall select an executor to fill the place of the one deceased or refusing to act, as it is my desire that there shall be at least two executors at all times.”

The trust being good, we think that by the provisions of the will in which it is formed, the executors named in the will, who are the appellants from this part of the decree, are clearly charged with the execution of the .trust.

In executing these-provisions of the will, the executors are trustees of the fund bequeathed, and are charged with its proper application under the will.

It is unnecessary to determine as to the question of successors to the executors as trustees, under the residuary clause of the testator’s will, as all the executors named qualified and stand ready to carry out the trust imposed. There is, then, in prcesenti, no question as to successors.

The learned vice-chancellor has not favored the court, in his opinion, with any reasons why the executors are unable to execute the trust, nor has he cited any authorities bearing upon that question.

In a trust for charity, the trustees take the estate. Exeter v. Odiome, 1 N. H. 232.

The only question in a case of this character is whether the will gives the legal estate to the trustees, and whether the person or corporation named in the will is competent to take. Downing v. Marshall, 23 N. Y. 366; Goddard r. Pomeroy, 36 Barb. 546; Goodell v. Union Asst., &c., 2 Stew. Eq. 32.

The capacity of the executors in the will before us is not questioned. They are natural persons. It would he difficult to frame language more clearly indicating the testator's intention to devise and bequeath his residuary estate to his executors in trust for the purpose indicated, and that they or their successors, the succession to be continued as indicated in the will, should manage the trust. Bisp. Pr. Eq. § 136; 2 Pom. Eq. Jur. §§ 1062, 1087.

This results in an affirmance of that part of the decree appealed from by William Watford et al., and a reversal of that part of the decree appealed from by William H. Jones et al., executors.

For affirmance of that part of' decree appealed from by the next of Icin—The Chief-Justice, Van Syckel, Dixon, Collins, Fort, Garretson, Hendrickson, Pitney, Bogert, Adams, Vredenburgh—11.

For reversal—Vroom—1.

For reversal of that part of decree appealed from by the executors—The Chief-Justice, Van Syckel, Dixon, Collins, Fort, Garretson, Hendrickson, Pitney, Adams, Vredenburgh, Vroom—11.

For affirmance—None.


author: Pee Cueiam.

text:
    Charles G. Reichle, complainant, Gottfried Steitz et al., defendants.
    On appeal of Karl H. Steitz and other infant defendants.
    [Filed November 17th, 1902.]
    1. A testator devised lands to a brother who died before the amendment to the act concerning wills (P. L. of 1887 p. 63) was enacted, and during the life of testator, leaving children who survived him.—Held, that the devise to the brother lapsed and his children take nothing.
    2. Murphy v. McKeon, 8 Dick. Ch. Rep. 406, followed.
    On appeal from a decree advised by Vice-Chancellor Reed, who filed .the following conclusions:
    The single question is whether the children of William Steitz are entitled to the one-half of the proceeds resulting from the sale of the property made in this suit. August Steitz, who died seized of this land, was a brother of William. In his will, made in April, 1878, August devised a one-half interest in the land, after the death of his (August’s) widow, to William.
    William died March 24th, 1878. August, the testator, did not die until January 24th, 1889.
    The supplement to the act to prevent lapses, which supplement was designed to extend to the children of brothers the benefit of the original act, was approved March 29th, 1887. .
    So William, the devisee, had died nine years before the supplement was enacted, which would have preserved his interest for his children.
    The case of Murphy v. MeKeon, 8 Dick. Ch. Rep. 406, directly ruled in this court the question mooted. In that case Chancellor McGill held that the remedial force of the act did not operate in favor of the children of the devisee in instances where the devisee' died before the act had taken effect.
    The devise to William lapsed; his children take nothing.

      Mr. Edward Q. Keasbey, JEor the appellants.

      Mr. Louis Hood, for the respondent.
   Pee Cueiam.

The decree appealed from is affirmed, for the reasons given in the court of chancery.

For affirmance—The Chief-Justice, Yak Syokel, Dixon, Collins, Foet, Gaeeetson, Hendeickson, Pitney, Bogebt, Adams, Yeedenbubgi-i, Yeoom—12

For reversal—None.


text:
    J. Addison Ely, respondent, v. Stephen D. Ely, appellant.
    [Filed November 17th, 1902.]
    On appeal from a decree advised by Yice-Chancellor Reed, whose opinion is reported in 50 Atl. Rep. 657.

      Mr. James Buchanan, for the appellant.

      Mr. John M. Diclcinson, for the respondent.
   Pee Cueiam.

The decree appealed from is affirmed, for the reasons given in the court of chancery.

For affirmance—Ti-ie Chief-Justice, Yan Syckel, Collins. Foet, Gaeeetson, I-Iendeiokson, Bogebt, Adams, Yeedenbuegi-i, Yooehees, Yeoom—11.

For reversal—Dixon, Pitney—2.


author: Per Curiam.

text:
    Harry L. Campbell et al., complainants, v. The John W. Taylor Manufacturing Company, defendants.
    [Filed November 17th, 1902.]
    On appeal of William Hurt, filed June 6th, 1902, from an order advised by Vice-Chancellor Grey, whose opinion is reported on page 622, ante.

      Mr. Jolm C. Sims, for the appellants.

      Mr. Charles K. Chambers, for the respondent.
   Per Curiam.

Affirmed, for the reasons given in the court of chancery.

For affirmance—The Chief-Justice, Van Syokel, Dixon, Collins, Port, Gaxretson, Hendrickson, Pitney, Bogert, Adams, Vredenburgi-i, Voorhees, Vroom—13.

For reversal—None.


text:
    In the matter of the probate of the will of George H. Sickles, deceased.
    [Filed November 17th, 1902.]
    On appeal from a decree advised by Vice-Ordinary Reed, whose opinion is reported in 18 Dick. Ch. Rep. 233.

      Mr. Edward Q. Kcasbey, for the appellant.

      Mr. Louis Hood, for the respondent.
   Per Curiam.

The decree appealed from is affirmed, for the reasons given in the prerogative court.

For affirmance—The Ci-tiee-Justice, Van Syckel, Port, I-Ienwriokson, Pitney, Bogert, Voorhees, Vroom—8.

For reversal—Dixon, Collins, Garretson, Adams, Vredenburgh—5.


text:
    Christian Feigenspan (corporation), appellant, v. Robert Mulligan et al., respondents.
    [Filed November 17th, 1902.]
    On appeal from a decree advised by Vice-Chancellor Stevenson, whose opinion is reported in 18 Dick. Ch. Rep. 179.

      Messrs. Roberson & Demarest, for the appellant.

      Messrs. Rilcer & Rilcer, for the respondents.
   Per Curiam.

The decree appealed from is affirmed, for the reasons given in the court of chancery.

For affirmance—The Chief-Justice, Van Syckel, Dixon, Collins, Port, Garretson, Hendrickson, Pitney, Bogert, Adams, Vredenburgi-i, Voorhees, Vroom—13.

For reversal—None.


text:
    The Board of Health of the State of New Jersey, respondent, v. The Diamond Paper Mills Company, appellant.
    [Filed November 17th, 1902.]
    On appeal from a decree advised by Vice-Chancellor Stevens, whose opinion is reported in 18 Dick. Ch. Rep. 111.

      Mr. John O. E. Pitney, for the appellant.

      Mr. William M. Panning, for the respondent.
   Per Curiam.

The decree appealed from is affirmed, for the reasons given in the court of chancery.

For affirmance—The Ciliep-Jus tice, Van Syckel, Dixon, Collins, Port, Garretson, Hendrickson, Bogert, Adams, Vredenburgh, Voorhees, Vroom—12.

For reversal—None.


text:
    William Baxter, appellant, v. Martha S. Smith, respondent.
    [Filed November 17th, 1902.]
    On appeal from a decree advised by Vice-Chancellor Stevens, whose opinion is reported in 17 Dick. Ch. Rep. 209.

      Mr. Thomas W. Randall, for the appellant.

      Mr. John Whitehead, for the respondent.
   Per Curiam.

The decree appealed from is affirmed, for the reasons given in the court of chancery.

For affirmance■—The Chibe-Justice, Yan Syckel, Dixon, Collins, Fort, Garretson, Hendrickson, Pitney, Bogert, Adams, Yiiedenburgi-i, Yoori-iees, Yroom—13.

For reversal—None.


text:
    Minnie Zabriskie et al., appellants, v. William Huyler et al., respondents.
    [Filed November 17th, 1902.]
    On appeal from a decree advised by Yice-Chancellor Stevenson, whose opinion is reported in 17 Dick. Ch. Rep. 697.

      Mr. John W. Griggs and Mr. Cornelius Doremus, for the appellants.

      Mr. William W. Watson, for the respondents.
   Per Curiam.

The decree appealed from is affirmed, for the reasons given in the court of chancery.

For affirmance—Ti-ie Chief-Justice, Dixon, Collins, Fort, Garretson, Hendrickson, Pitney, Bogert, Adams, Yredenburgi-i, Yoori-iees, Yroom—12.

For reversal—None.


text:
    Lavinia Wescoat et al., appellants, v. John R. Wilson et al., respondents.
    [Filed November 17th, 1902.]
    On appeal from a decree advised by Vice-Chancellor Grey, whose opinion is reported in 17 Dick. Ch. Rep. 177.

      Mr. William M. Clevenger, for the appellants.

      Mr. Clarence L. Cole, for the respondents.
   Per Curiam.

The decree appealed from is affirmed, for the reasons given in the court of chancery.

For affirmance—The Ci-iiee-Justice, Yan Syckel, Dixon, Collins, Port, Garretson, Hendrickson, Pitney, Bogert, Adams, Yoorhees—11.

For reversal—None.


author: Dixon, J.

text:
    Alfred H. Ryan, appellant, v. Isabelle C. Wilson et al., executors, respondents.
    [Filed January 9th, 1903.]
    When executors or administrators, in accordance with section 85 of the Orphans Court act (P. L. of 1898 p. 715), report a sale to the orphans court for confirmation, the court should withhold confirmation and order a resale, if the bid reported is far below the estimated value of the property and the property was not offered for sale in a manner which, in view of all the known circumstances, seemed likely to bring the best price.

      On appeal from a decree of the prerogative court, advised by Vice-Ordinary Reed, who delivered the following conclusions:
    On January 24th, 1902, the estate of Samuel K. Wilson, deceased, was, by the orphans court of Mercer county, decreed to be insolvent. Under the authority of section 107 of the Orphans Court act (P. L. of 1898 p. 755) the court directed the executors of Samuel K. Wilson to make sale of certain property of the estate. On March 19th following, by virtue of this order, two mills, one situated on Factory street and the other on Fair street, in the city of Trenton, were sold together at public sale to Alfred H. Ryan for the sum of $30,300, subject to mortgages amounting to $8,631.09.
    Objections to the confirmation of this sale were interposed by the creditors of the insolvent estate. On May 9th the orphans court made an order that the sale be disapproved and that the executors resell the property. The present appeal brings up this order.
    The petition which challenges the propriety of the sale raises three grounds of complaint—first, inadequacy of price; second, that the machinery should have been offered apart from the lands and buildings, and third, that the purchaser induced another prospective bidder to forbear from bidding.
    I will notice the third ground of complaint before alluding to the others.
    There is in the case the testimony of Mr. Lamb to the effect that Mr. Ryan requested him not to bid upon the joint properties when they were struck off to Mr. Ryan. Mr. Ryan denies this statement.
    The circumstances in which the sale was made must be briefly stated. The two properties were exposed for tentative bidding in three methods for the purpose of ascertaining which of the three schemes would produce the most money. By the first of these methods the Fair street property and the Factory street property were put up- separately, each equipped with machinery as it stood-—the Fair street property firstly, and the Factory street property secondly. The highest bid for the former was Ryan’s offer of $21,400, and the highest bid for the factory street property was Lamb’s offer of $8,800.
    By the second method, the Fair street property, which needed, to complete its equipment, ten pieces of broad-finishing machinery, which were in the Factory street mill, was offered together with the ten pieces of finishing machinery; then the Factory street property was separately offered, less the ten pieces of finishing machinery just mentioned. For the former, Ryan bid $21,600 and for the latter, Lamb bid $8,500.
    Then, thirdly, both properties were offered together as they stood, and the highest bid was Ryan’s, 'of $30,300.
    The aggregate amount of the two bids under the first scheme was $30,200, and of the two bids under the second scheme, $30,100; therefore, Ryan’s bid, under the third scheme, of $30,300, was accepted.
    It was in respect to the last sale that Lamb says he was requested by Ryan to refrain from bidding. It is apparent from the order of the bidding, as well as from the testimony of both Lamb and Ryan, that Lamb wished the Factory street property and that Ryan desired the Fair street property; but Ryan also wished to have with the latter the ten pieces of finishing machinery, then in the Factory street property, to complete the equipment of the Fair street mill. Had Lamb, when the Factory street property was offered the second time, bid more than $8,600, the aggregate amount of his and Ryan’s bids would have been in excess of the aggregate amount of the two bids under the first scheme; and so Ryan would not have wished to buy both properties for the purpose of getting the ten pieces of finishing machinery. After he had made his bid on the Fair street property, with the ten pieces of machinery, he wished Lamb to bid enough for the Factory street property, when it was put up the second time, without the ten pieces, to make their aggregate bids more than the bids under the first scheme.
    While the bidding upon the property was progressing at this time, Ryan says he went over to Lamb, who was sitting on a counter about ten feet away, and urged him to bid the property up, saying it was worth the amount he had first bid without the ten pieces, and that Lamb declined to increase his bid. Byan denies that he thereafter, during the sale, spoke to Lamb.
    Mr. Lamb’s account of what’ occurred is that the two mills were put up, including the broad-finishing machinery in the Factory street mill. After the Factory street mill was knocked down on his bid of $8^900, Mr. Byan said he would like to have this machinery. He said:
    “I want this machinery and I won’t disturb you. You get your mill at your bid and I will take this lower mill and this broad-finishing machinery.”
    Lamb said, “All right; that is satisfactory.” Then the two mills were put up together, and Byan came over to Lamb again and said:
    “Now don’t bid on this and I will just make a bid on it, and you will get your upper mill, less the broad-finishing machinery, and it is understood, and we will fix this matter up afterward.”
    So it was knocked, and he said “he would make a bid of $50; something like that.” “I said, malee it $100; you have got lots of money.”
    Mr. Byan admits that Mr. Lamb told him to bid $100 when the properties were up jointly the last time, but he says he was not near Lamb, and that Lamb said in a very sarcastic way, “As you have all the money there is in this crowd, why not make it $100 ?” “I am quick tempered, and I said malee it $100.” Mr. Byan gave his check for ten per cent, of the purchase-money. He says that a Mr. Brown and he started for the train, and Mr. Lamb came to him and said: “Let me give yoú a check for that upper mill,” to which Byan replied: “All bills are paid,” and passed on.
    The sale was made on March 19th, and Lamb wrote a letter to Byan, which is not produced, which elicited a reply from Byan, dated March 21st, in these words:
    “X cannot receive any check from anybody until I get the deeds. I think you are wrong as regards ‘counsel.’ I will work the newspapers. Robbins and Stokes are anxious to get it off their hands and will help me.”

      After receiving this letter, Lamh went to Somerville to see Eyan, when Eyan refused to recognize any interest of Lamh in the mills, which provoked a quarrel, ending in Eyan ordering Lamb to leave his office.
    It is thus perceived that the accounts of Lamb and Eyan radically differ in regard to what occurred at the time of the sale and the number of times they conversed—Eyan insisting that he crossed to speak with Lamb but once, and Lamb saying that Eyan came over to him two or three times.
    Mr. Goldstein says that at the time mentioned by Eyan he was standing close behind Lamb, who was sitting on a counter, and he saw Eyan step out of the ring where he was standing and come over to Lamb and speak to him. He says he heard the words, “Why don’t you bid her up ?” and nothing more. He says he did not hear Eyan afterward say anything to Lamb.
    Mr. Brown says he stood right near Eyan at the sale, and that he saw Eyan step across to- speak to Lamb, but he did not think it was when the two mills were up together, but thinks it was when they were selling the Fair street mill with the broad-finishing machinery. He does not recollect that Eyan left his side again.
    In this condition of the testimony it is not proven to my satisfaction that Eyan did make a request that Lamb should refrain from bidding upon the property at the time that Eyan purchased. The testimony undoubtedly leaves the impression that something took place between Eyan and Lamb, by reason of which Lamb thought he was assured of the Factory street property at the supposed bid of $8,900 in the event of Eyan becoming the purchaser of the two properties. His offer to pay the commission at the sale, and his letter and visit to Eyan seems to show that he thought there was some such understanding.
    Eyan’s reply to Lamb’s letter, while not exhibiting any specific acknowledgment that Lamb had an interest in the purchase, yet did not state that Lamb was a stranger to the purchase and therefore had nothing to do with the payment of any commission. This, however, constitutes no proof that there was such a fraudulent agreement between Eyan and Lamb as would avoid the sale.

      I will therefore recur to the first and second grounds upon which the sale is attacked.
    The rule in this state concerning the stability of judicial sales is undoubtedly a very rigid one. The only grounds upon which the inchoate right of a successful bidder can be frustrated is the presence of fraud or irregularity in the sale. Mere inadequacy of a bid, if the sale is regular, will not warrant the court in setting the sale aside and ordering a resale. This rule does not rest upon the right of a purchaser, because when he bids he understands that it is subject to the approval of the court, but it rests upon the grounds of public policy. It is adopted to encourage the attendance of bidders at judicial sales.
    The reasons for the rule are stated, and the cases in which it has been applied in this state are cited by Mr. Justice Magie in his opinion in Morrisse v. Inglis, 1 Dick. Ch. Rep. 301, in the court of appeals. It is only when a bid is unconscionably below the value of a property—so low as to raise the inference that the sale must have been in some way fraudulent or irregular— that mere inadequacy will avoid the sale.
    Nor does the rule seem to differ whether the court is asked to set aside a sale or is merely asked to refuse its approval of a sale. A distinction was pointed out by Chancellor Kent in Osgood v. Franklin, 2 Johns. Ch. 1, 23, between the influence of an inadequate consideration in suits for rescission of contract and its influence upon suits for specific performance. It would seem that following this distinction a court might refuse to approve a sale, when, upon the same facts, it would refuse to set aside a sale. The court would simply refuse to exert its power affirmatively. But Chancellor McGill, in Bethlehem Iron Co. v. Philadelphia and Seashore Railroad Co., 4 Dick. Ch. Rep. 356, 363, held that a receiver’s sale was controlled by the rule laid down in Morrisse v. Inglis, supra, although the act of 1890 (P. L. of 1890 p. 138) required that all sales of land made by order of the court of chancery should be confirmed by the court.
    It is quite clear that the price bid for these two properties is an inadequate consideration for them. Indeed, on May 2d a bond was executed to the executors conditioned that upon a resale another party would bid $50,000, or an excess of thirty-three and one-third per cent, over the hid accepted. In addition to this there is testimony that the value of the land upon which the mills are situated, and the machinery contained in the mills, without regarding these mills as going plants, is worth four times the amount of the bid. But the question is whether this testimony alone, or together with another feature which concerns the manner of sale, is sufficient to support the order of the orphans court. The value put upon the land itself, regardless of any structures thereon, is $13,400; and its value with the buildings and without the machinery, $20,000. The estimate of cost for replacing the buildings at the Fair street mills is from $67,500 to $78,500. It is also testified that it would cost $25,000 to reproduce buildings of the size of the Factory street plant, but that the present buildings are too poor to be the subject of valuation for manufacturing purposes.
    The estimate of valuation of machinery in the Factory street mill is $37,153.60, and of machinery in the Fair street mill, $88,557. This estimate is exclusive of the valuation of the transmitting machinery, which is valued at about $25,000, making an aggregate valuation for the entire machinery of $150,711. As I understand Mr. Hunter, the expert who testified to the ma-_ chinery valuation, his estimate was made upon the basis of the value of the machinery if taken out of the mills and separately sold. He -says that to- a purchaser who wished to leave the machinery in the place and operate it in the mills it would be worth twenty-five per cent, more than his estimate. It is to- be observed that Mr. Ryan, the present appellant, was one of the appraisers selected by the executors of Wilson. He estimated the valuation of this machinery at $150,000.
    Discarding the theory of the sale of the two mills as a plant, to be operated as now equipped, and regarding only the value of the land and the machinery in ease the mills were disused, the estimate would foot up -to about $164,000. Against this, as already observed, the price realized was a trifle over $30,000, which, with the encumbrances, brought the selling-price up to the neighborhood of $39,000, or less than one-quarter of the valuation put upon the property by the expert and the appraiser. While I doubt whether under any circumstances the property could be made to realize the sum of $160,000, I do not doubt that the price realized was grossly inadequate. I am certain there was no one who knew these properties, whether by general knowledge or through the testimony disclosed in this ease, but was struck with amazement at the price at which they were sold. In my judgment, the manner in which the sale was conducted was mainly responsible for this result.
    It appears from the testimony that the Factory street mill building is in such a decrepit condition as to be unfitted for heavy machinery. It also appears, in. respect to the Fair street mill, that absence of railroad facilities minimizes its value for manufacturing purposes, other than such as require little carting. These very unusual conditions would so materially affect the sale of each as an entire concern that, in my judgment, the land itself and the machinery within each factory are worth more—at least, would bring much more at a public sale than the plants themselves.
    In this view the sale therefore was of not merely the machinery, but of the land and the machinery en masse. It can, of course, be said that prospective purchasers could calculate the value of the property in .this way and so regulate their bids; but it is common knowledge that the larger the amount of money required for a single purchase, the fewer there are with ability to bid.
    In my judgment, as one of the experimental methods of conducting the sale, the machinery should have been offered in small lots separately from the land.
    In consideration of the price received, coupled with the manner of conducting the sale, I shall advise a confirmation of the order of the orphans court.

      Mr. John II. Baches, for the appellant.

      Mr. William M. Banning, for the respondents.
   The opinion of the court was delivered by

Dixon, J.

This is an appeal from a decree of the prerogative court affirming an order of the Mercer county orphans court, in which the court refused to confirm a sale of two factories-in the city of Trenton belonging to the estate of Samuel K. Wilson, deceased, and which the orphans court had ordered the executors to sell for the payment of debt's.

The statute under which the proceedings for sale were taken (P. L. of 1898 p. 715) requires by section 85 that after the sale is made, it shall be reported to the orphans court, and, if the court shall approve of the' sale, it shall confirm the same as valid and effectual in law, and direct that a conveyance be executed.

In the opinion delivered in the prerogative court this requirement of confirmation -was regarded as having no substantial effect, the view being that the court should confirm the sale, unless facts were shown which would justify the annulling of a judicial sale that did not need confirmation by. a court to render it valid. This view was supposed to be sanctioned by the decisions in Delaware, Lackawanna and Western Railroad Co. v. Scranton, 7 Stew. Eq. 429, and Bethlehem Iron Co. v. Philadelphia and S. S. Railroad Co., 4 Dick. Ch. Rep. 356. The statute under consideration in those cases enacted that certain judicial sales should be reported to the court and, if approved by the court, should be confirmed, with a proviso that no sale should be confirmed, until the court was satisfied that the property had been sold at the highest and best price the same would then bring in cash. The opinions delivered by the court of chancery in those cases are thought to imply that a sale governed by that statute must be confirmed, if the highest and best price obtainable at the sale had been secured, unless the circumstances were such as to warrant the setting aside of a sale which would be valid without confirmation.

Without passing upon the correctness of that construction, we deem it inapplicable to the case now before us. Here the power of confirmation or rejection is untrammeled by the proviso which was supposed to narrow the scope of inquiry in the cases cited, and is committed without limitation to judicial discretion. By force of the -statute the “sale” reported to the court is not a perfect contract made by competent parties, but is a bargain dependent upon the approval of the court to render it “valid and effectual in law.” Such approval should, in our judgment, be given or withheld upon consideration, not merely of matters pertinent to the avoidance of a complete contract, but of all matters pertinent to the question of accepting the proposal presented. Among those matters is evidently the propriety of the mode in which the auction was conducted. As was said by Vice-Chancellor Pitney in Bliss v. New York Life Insurance Co., 6 Dick. Ch. Rep. 630, if the sale is so managed as to discourage bidders and to result in a considerable sacrifice, that circumstance would justify the court in refusing to confirm the sale, even though the purchaser had nothing to do with such mismanagement. The court must regard the interests of those parties whose property it undertakes to sell, as well as the expectations of those who propose to buy.

We think the interests of the present owners were not duly protected at the sale under consideration. The property to be sold consisted of two factories, equipped with machinery for the manufacture of woolen goods. Of this machinery the manufacturing machines, in distinction from the appliances to transmit the power, were easily removable and were such as are salable separately. About a year before the sale these machines were appraised at $120,000 and the rest of the apparatus at $30,000, and the substantial accuracy of that appraisement is supported by the testimony of an expert taken in the proceedings now pending. Beside these values, the buildings and land are said to be worth $20,000 and the encumbrances upon the whole are about $10,000. With these estimates before them, the executors offered for sale each mill and its contents as an entirety, and the highest bid received for both is only $30,300. The number of persons attending the sale was fifty or sixty, of whom only five or six bid on the property as it was offered. No attempt was made to sell the separable machines in distinct parcels. While it is impossible to tell with certainty whether the bystanders would have become bidders for such parcels, we think the dictates of reasonable prudence required the executors to test that question. There is surely a probability that among so many attendants, some, unable or indisposed to buy an entire mill, would be able and inclined to buy single machines, and when the difference between the estimated value and the offers received was so great, every practicable effort should have been made to avoid or lessen the impending sacrifice.

In order to permit further effort in the direction suggested, we concur in the refusal to confirm the sale reported.

. For affirmance—Ti-ie Ci-iiee-Justice, Van Syckel, Dixon, Collins, Eort, Garretson, Hendrickson, Adams, Vredenburgh, Voorhees, Vroom—11.

For reversal—None.