author: Pee OuEiAvr.

text:
    ALBERT GRAMALDI, PLAINTIFF, v. PETER J. ZEGLIO, ABRAHAM JULIUS AND JULIUS LINKE, DEFENDANTS.
    Submitted November 6, 1924
    Decided June 15, 1925.
    Maipractice — Physician—Patient Received Regular and Ordinary Professional Care — Infection Set in, Causing Permanent Impairment of Use of Arm — Other Physicians Testified That They Would Have Treated Case Differently — This is Not Sufficient — Neither May Physicians' be Placed in Position of Guaranteeing Cure — Case Dismissed.
    On plaintiff’s rulo lo show cause.
    Before Gummeke. Chief Just he, and Justices Park ki: and Katzenbach.
    For the plaintiff, Richard Doherty.

    For the defendants. Edwards it Smith (Edwin F. Smith, of counsel).
   Pee OuEiAvr.

This case is before on a plaintiff's rule to show cause. The question involved is whether the trial court ruled properly in directing the jury to return a verdict in favor of one of the above defendants. Peter Zeglio. The suit was instituted by the plaintiff, Granialdi, against three physicians for malpractice. The evidence showed that on July 9th, 1922, Granialdi was in front of the station of the Central Railroad Company, at Plainfield, New Jersey. He was with a friend by the name of Lang. They were in a Ford car waiting for Mrs. Lang to return from New York. When Mrs. Lang did not return on the train arriving at Plainfield at ten-fifty-three i>. vi., Mr. Lang suggested that they leave ihe station. Gramaldi volunteered to crank the car. While attempting to do so the crank flew back and struck his wrist. He was injured. His wrist was bent back and the hones above the wrist broken. He was taken to the Muhlenberg Hospital in Plainfield. There were four people at the station who testified that the bone or bones did not protrude through the flesh at the time of the injury, and the hand was not soiled. Upon reaching the hospital he was received bj1- two young physicians, internes, Abraham Julius and Julius Linke. Gramaldi contended these- internes caused a 'Simple fracture to result in a compound fracture by their unskillful' manipulation of his arm. As a result of this compound fracture, infection set in which produced a disease known as osteomyelitus, which resulted in the loss of the use of the plaintiff’s arm. On the day of the accident the defendant Peter Zeglio was the visiting surgeon at the hospital. His assistant was Dr. Malatesta. Upon the arrival of Gramaldi to the hospital his clothing about the arm was removed. Dr'. Julius attempted to get Dr. Zeglio. He could not reach him.. He did, however, reach Dr. Malatesta, who came to the hospital within five minutes from the time of receiving the call. The defendants contended that nothing had been done to' the arm in the meantime. They diagnosed the injury as a compound dislocation of the ulna. They testified at the trial that the bone was sticking out through-a wound at the wrist. The hand was dirty and greasy. There was also a compound fracture of the radius.. Dr. Malatesta and the internes administered -ether to Gramaldi. His arm was scrubbed and washed. The wound was saturated with benzine and iodine. Sterile cloths were used. Manipulation was applied; The bones were slipped back into place. The wound made by- the protruding bone was so jagged that a stitch was required. After this the patient was put to bed. ■ Dr. Zeglio did not see the plaintiff until the following day. When he came to the hospital on the moning of July 10th he examined the chart, received a history of the case, and looked at the patient. Gramaldi had no fever. He saw him again the next day. The plaintiff complained of pain. - His temperature had risen. The splints were removed. His arm was found slightly swollen about the wrist. Some serum was exuding from the wound on the palmar surface of the hand. The wound was opened. The stitch taken out. A drain was inserted to prevent infection. The wound was redressed. X-rays were taken. On July 12th Dr. Zeglio again saw the plaintiff. The splints were taken off. The arm was more swollen and slightly redder. Pus was mixed with the exuding serum. The wound was cleaned. Another drain was inserted. The testimony showed that infection is never preventable. All that can be done is to assist nature in throwing it off. Infection comes from outside sources. It also' comes from the blood itself. From a culture taken and examined in the laboratory of the hospital the existence of staphylococci and striptoeocci were discovered, hut no gas bacillus. The same treatment was continued. The infection apparently disappeared as the temperature of the plaintiff became normal, on July loth, and continued normal until the case passed from the observation of Dr. Zeglio, who was succeeded on August 1st as visiting surgeon by Dr. B. Y. D. Hedges. At the time Dr. Hedges became the visiting surgeon there was no symptom of periostitis of the ulna. Later, the condition of G-ramaldi’s arm became worse. Osteomyelitis developed. The plaintiff insisted upon leaving the hospital on August 22d, against the advice of the physicians. He went to Bellevue Hospital, in the city of New York. The surgeons there advised amputation of the arm. He would not consent to this. Deep incisions were then made to drain the arm and check infection. These were successful. The arm was saved, but its use impaired. The plaintiff suffered greatly. His ability to work has been lessened as a result of the accident. Misfortune has overtaken him. It does not necessarily follow, however, that someone is responsible for his condition, and must respond in damages for his suffering and reduced earning power. The skill and care a physician is required to give a patient is that ordinarily possessed and exercised by others in the profession. The most recent case to this effect is the case of Lolli v. Gray, 3 N. J. Adv. R. 622, in which the opinion was written by Chancellor "Walker. A physician is not a guarantor-without-express contract of the good effects--of • his treat-in enty and he only undertakes to''do- what can.ordinarily be done under similar circumstances. Ely v. Wilbur, 49 N. J. L. 685.

The record in this case -comprises five hundred and sixty-two pages. It is almost a medical treatise on the subject of infection. Physicians and surgeons of high standing in the profession were witnesses. The evidence offered in behalf of the plaintiff was opinion evidence to the effect that a different course of treatment should have been followed. The defendant’s -witnesses approved the course taken. The plaintiff’s expert, witness said that large incisions should have been made in the plaintiff’s arm when the infection appeared. These incisions would have opened the entire arm. The defendants’ experts considered the draining of the wound as was done the proper treatment. All admitted that infection is likely to arise in any case. It can come from a condition of the blood, as well as from an outside source.

At the conclusion of the testimony motions were made in behalf of all the defendants to direct a verdict in their favor. This motion was denied as to Dr. Linke and Dr. Julius. With the propriety of this ruling we have nothing to do. It is not before us. The motion was granted as to Dr. Zeglio. The correctness of this ruling is before us. We are of the opinion that the trial judge ruled properly when he granted- this motion. The testimony, in its most favorable aspect for the plaintiff, failed to show, in our opinion, that Dr. Zeglio did any negligent act which caused the infection. The testimony-showed that treatment of an infected arm by draining, as was done in the present case, was a well-recognizecl and standard from of treatment. The fact that the plaintiff introduced evidence of physicians and surgeons that they would have made incisions in the arm which would have laid it open from wrist to' elbow is mot evidence of malpractice. Surgeons of eminence frequently differ in their opinions as to the -treatment to be used in a given case. T'o permit a jurjr to pass upon .the question of malpractice because testimony is given by physicians that they would have used a different treatment from the one prescribed or followed would be to make a physician or surgeon a guarantor of the success of his treatment in every ease. If he fails to restore his patient he must face a law suit with its accompanying annoyances and expenses. If the plaintiff's position be sound a jury must pass upon the question whether the treatment given was correct or not. As the plaintiff did not respond to the treatment given, and his arm become restored to its condition prior to the fracture^ it could be expected that a jury would reach the conclusion that some other treatment of the condition which arose should have been applied. The result would be to return a verdict for the plaintiff, notwithstanding the same infection might have followed the other kind of treatment. If such were the law there would be few physicians and surgeons who would undertake to treat a case. Eor every failure to effect a cure would lay the basis for a law suit.

It takes more than the opinion of one or more physicians or surgeons that the treatment followed in a given case should have been different to lay a foundation for malpractice. The present case is typical of what frequently occiirs. The defendant Dr. Zeglio has been a physician and surgeon since 1882. He is a graduate of the College of Physicians and Surgeons of New York City. A reading of his testimony shows that he is a man of profound learning. His testimony is dear, concise and convincing. It shows a mastery of the subject. To his learning is added an experience of over forty years. The hospital to which the plaintiff was taken was a charitable institution. The amount paid by the plaintiff almost nominal. Dr. Zeglio was giving gratuitously his services as visiting surgeon. What he did the eminent physicians and surgeons elsewhere are doing. Those who are taken to the hospitals get the best of care at a minimum of cost. The indigent receive the same care and attention as the rich. It is possible to do this largely through the gratuitous services rendered by the leading physicians and surgeons of a community. In some instances the results hoped for from the treatment prescribed may not be obtained. Cures cannot in all cases be accomplished. To make a physician or surgeon liable for failure to effect a cure, a plaintiff must bring himself within the' law as above defined. This the plaintiff failed to do. A case of malpractice cannot be proven by the testimony of a few physicians or surgeons that they would have used some other treatment than the one used, in the absence of testimony from which it can be inferred that the defendant failed to give to the case that skill* and care ordinarily possessed and exercised by others in the profession. The trial judge correctly, in our opinion, granted the motion to direct a verdict for Dr. Zeglio.

The rule to show cause is discharged.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    JERSEY LAND COMPANY, A CORPORATION, RELATOR, v. JOHN G. SCOTT, BUILDING INSPECTOR OF THE CITY OF EAST ORANGE, AND THE CITY OF EAST ORANGE, RESPONDENTS.
    Submitted January 16, 1925
    Decided June 15, 1925.
    Zoning — Stores in Residence District — Location, Park Avenue and Grove Street, East Orange — Case Weil Within Rule in Ignaciunas v. Risley, 2 N. J. Adv. R. 852.
    On demurrer to the return of an alternative writ of mandamus.

    Before Gummere, Chief Justice, and Justices Parker and KAtzenbach.
    For the relator, Leber & BvbacTc.

    For the respondents, Walter G. Ellis.

   Per Curiam.

This is a demurrer to the return of an alternative writ of mandamus. Jersey Land Company, a corporation, relator, is the owner of a tract of land in the city of East Orange, located at the corner formed by the intersection of the southerly side of Park avenue with the westerly side of Grove street. Park avenue is a main artery of traffic between the cities of Newark and Orange, by way of East Orange. It is an avenue fifty feet in width between the curbs. There is a ten-foot strip in the centre of the avenue upon which foliage is planted. Grove street is also one of the main arteries of traffic between the cities of Newark and Bloomfield, by way of the city of East Orange. The tract of land in question has a frontage on Park avenue of one hundred and eleven feet, and a frontage on Grove street of ninety feet. The relator applied to the building inspector of the city of East Orange for a permit for the erection of a two-story brick structure containing nine stores and two apartments on the first floor, and eight living apartments on the second floor. The plans submitted to the building inspector were satisfactory, but the permit was refused because of a zoning ordinance passed .by the city of East Orange which placed the property of the relator in what is known as the “Large Volume Residence District.” Consequently, no stores could be erected. A zoning board of appeals has been established in East Orange. The relator presentéd his case to the zoning board of appeals, and that board sustained the refusal of the building inspector to issue the permit. Application was then made to this court for a writ of mandamus, and an alternative writ was allowed. The return sets up that within the district where the relator’s' land is located stores are'prohibited. Within the “Large Volume Residence District” there is allowed — (1) anything allowed in the “Small Volume Districts,” and .(2) anything allowed in the “Medium Volume Districts.” In addition, there is allowed dwellings for more than two families, flat, tenements and apartments. A reference to what is allowed in the small volume districts and the medium volume districts shows that the property of the relator could be used for a farm, trucking garden, &c., offices of professional «men, hotels and lodging-houses, hospitals, sanitariums, philanthropic institutions, clubs, schools, libraries, railroad stations and the character of dwellings herein-before mentioned. It is evidently desired to maintain Park avenue as a residential street. There are, however, seven blocks east of the relator’s property on Park avenue, stores, and two blocks west on Park avenue there is a grocery store. There is a large number of commercial properties three blocks north of the relator’s land.

We are of the opinion that this case does not differ from, and is controlled by, the case of Ignaciunas v. Risley, 98 N. J. L. 712; affirmed by the Court of Errors and Appeals, 2 N. J. Adv. B. 852.

The demurrer to the return is sustained. A peremptory writ of mandamus is awarded to the relator.


author: Pee Curiam.

text:
    THE TRUSTEES OF THE STATE ASSOCIATION OF THE YOUNG MEN’S CHRISTIAN ASSOCIATION, PLAINTIFF-RESPONDENT, v. CLARK N. KINNEY, DEFENDANT-PROSECUTOR.
    Submitted January 16, 1925
    Decided June 15, 1925.
    Ejectment — Land in Question Hard to Understand Location of On Account of State in Which Record is Presented — Difficulty Result of Carelessness in Describing Tract — Verdict for Plaintiff Clearly Against Weight of Evidence — Adverse Possession Not Established.
    On defendant’s rule to show cause.
    Before Gummeee, Chief Justice, and Justices Parker and Katzenbaoh.
    For the defendant-prosecutor, Morris & Downing (Levi H. Morris, of counsel).
    For the plaintiff-respondent, King & Vogt.

   Pee Curiam.

This case is before us on a defendant’s rule to show cause. It is an action in ejectment instituted by the trustees of the state association of the Young Men’s Christian Associations as plaintiff against Clark N. Kinney as defendant.

The plaintiff purchased in 1919 from Emma Lulu Slater, widow of Charles F. Slater, the tract of land in dispute. The purpose of the plaintiff’s purchase was to have the exclusive control of a pond in the county of Sussex, in this state, known as Slater’s pond. This pond is located about two and one-half miles southeast of Newton, in the county of Sussex. The tract of land of which the plaintiff desires to obtain possession borders on the pond and is a projecting headland. It has been difficult to obtain a proper understanding of the case because of the state in which the record is presented to us. The surveyor for the plaintiff in his testimon)'- ran a pointer along a map from “here” to “there.”1 This gives a reviewing court no correct understanding of testimony which may be of great importance to the proper review of the case. The map submitted shows two ponds. The locus in quo is not indicated and the pond^ are not named. All of the property lines are not given. The scale of the map is, wrong. An ejectment suit is generally a difficult c'ase for a court to. review. Great care should be exercised in the preparation of the state of the case for review. The locus in quo, although stated to be a peninsula, is, in fact, a headland. It is located near the easterly end of the larger of the two ponds shown upon the map. * * *

The defendant, Clark Kinney, eoncededly owns to the southeast of the disputed land. The plaintiff eoncededly owns to the northwest of the same line with the exception of the headland. The difficulty appears to have been brought about by carelessness ,in describing the Kinney tract and describing the northwest side of said tract. Instead of copying the surveyor’s courses after reaching the pond, the scrivener said “thence along said pond to the place of beginning.” This appears in the deed of George H. Nelden, sheriff, to Simmons Struble, dated April 1st, 1853. This deed was the result of a mortgage not set forth in the state of the case. The mortgage may have had this mistake in the description. In I860 Simmons Struble had conveyed to him the pond by Joseph A. Scoville and wife. Struble on April 13th, 1863, mortgaged eight tracts of land to Daniel S. Anderson, trustee for Charity Ackerson.' The first four of these tracts were those conveyed by Joseph A. Scoville and wife. The fifth tract is not involved in the present case. The sixth and seventh tracts are the same as were conveyed by George H. Nelden, sheriff, to Simmons Str/uble, by deed dated April 1st, 1853. This is the Kinney tract. The eighth tract is also not involved in the present ease. Daniel S. Anderson, as trustee, foreclosed this mortgage in the year 1870, and in the year 1871 a sale was made in parcels by the sheriff of Sussex county. The first, second, third and fourth tracts in the mortgage (the fourth tract being the pond tract), were conveyed by Jesse Ward, the sheriff, to Charles K. Slater, by deed dated March 27th, 1871, and acknowledged and recorded on the same da}’. The fifth, sixth and seventh tracts described in the mortgage were conveyed to Horatio W. Kinney. The sixth and seventh tracts include the property bought by Simmons Struble in 1853 and form the Kinney tract. Thus, on the same day", the sheriff sold to different purchasers the pond tract following surveyor’s lines across the promontory" in question. The Kinney" tract was described by" following the same lines on the northwest side. There was then inserted in the description the words “thence along the said pond.” Prom 1853 to 1871, Simmons Struble owned to the southeast of the line “along the pond,” and from 1860 to 1871, to the northwest of it by the Scoville deed. He never strictly owned between the shore and the surveyor’s line.

The trial judge in his charge to the jury said that if the sheriff in 1871 undertook to give the peninsula (meaning the promontory") to both parties, then there should be a verdict for the defendant, as his title is as good as the plaintiff’s; but if the sheriff did not undertake so to convey to the defendant beyond the Hackett line (meaning surveyor’s line), then the plaintiff was entitled to recover unless the defendant made out adverse possession. The jury" found for the plaintiff, and in doing so must have construed the sheriff’s deeds of 1871 favorable to the plaintiff, and also found that adverse possession had not been shown. We have reached the conclusion, however, from our examination of the testimony", that the verdict is against the weight of the evidence as to adverse possession. The defendant proved by the testimony of many" witnesses that he had farmed the tract of land in dispute down to the w'ater’s edge continuously for a period of forty" years. There was no sign of a fence or other mark oí a boundary’ on the line involved. During the trial the jury was permitted to view the premises. It is contended that this view of the premises should be controlling and the verdict sustained. We think otherwise. The evidence of the farming of the land is not seriously disputed. We think the verdict rendered against the weight of the evidence. In view of this holding it is unnecessary to consider the other questions briefed.

The rule to show cause will be made absolute.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. LUTHER GARTON, PLAINTIFF IN ERROR.
    Submitted January 16, 1925
    Decided June 15, 1925.
    Crimes — Possession and Sale of Liquor — Defendant Lived at House of Chief State Witness With Whom He Had Ceased to be on Good Terms — Evidence Not Strong, but Upon Consideration, No Prejudicial Error Was Found.
    On writ of error directed to the Cumberland County Court of Quarter Sessions.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.
    For the plaintiff in error, George Diner {Bex A. Donnelly, of counsel).
    For the defendant in error, Thom,as G. Tuso.

   Per Curiam.

This case has been brought to this court by a writ of error directed to the Cumberland County Court of Quarter Sessions. The writ brings up for review the conviction of Luther Garton. Garton was indicted by the grand jury of Cumberland county at the September term, 1924. The indictment charged him with the possession of liquor for beverage purposes, on August 6th, 1924, at Bridgeton, and also with sales of liquor for beverage purposes during the month of July, 1924, and on the 1st day of August, and every day to August 6th, 1924. The principal witness for the state at the trial of the indictment was Samuel Swift. It appears that Swift’s mother-in-law had been the housekeeper of Garton. She died. Garton, who was a livery stable keeper and a man evidently possessed of more means than Swift, concluded that he would live at Swift’s home. For this privilege Garton paid the rent of the house occupied by Swift and his family. He also agreed to buy the groceries. Garton thereafter lived there, occupying the third floor, which he furnished. Swift became jealous of Garton. On the 6th day of August liquor was seized in the house. Out of this grew the indictments for possession and sales. Swift testified that Garton made sales to Andrew Stiles, Hugh Rodman, Daniel Valentine and to Dolph Rodman for William Woolbert. At the trial these parties testified. They denied purchasing the liquor of Gar-ton, with the exception of Daniel Valentine, who admitted it. Swift, prior to the trial, had left his home. Mrs. Swift remained with four children. Garton continued to live there after the departure of Swift. Swift testified that these sales had been made by Garton in the presence of his wife. When Mrs. Swift was'called as a witness she denied this, or did not remember having seen the sales made. Garton testified in his own behalf. He denied that he made the sale. The jury evidently believed the testimony of the state’s witnesses because they brought in a verdict of guilty.

The case is before us on strict bill of exceptions and also upon specifications of causes of reversal, the entire record being before us. The assignments of error are three in number. The specifications of causes for reversal number twenty-two. Counsel for the plaintiff in error appear to have taken the record of the case and drafted a specification of cause for reversal upon every feature of the case in which they now think the plaintiff in error may have been prejudiced, notwithstanding there was no ruling of the trial court upon the question now raised. This practice is not permitted. There must have been some ruling of the court to make a basis for a specification of cause for reversal under the one hundred and thirty-sixth section of the Criminal Procedure act. State v. Warady, 77 N. J. L. 348.

The first assignment of error deals with a question asked of Samuel Swift on his cross-examination. The question was, “Has your wife been doing something wrong?” The objection to this question was properly sustained. What the witness’ wife had been doing, whether right or wrong, was irrelevant and immaterial.

The second assignment of error is that the verdict was against the weight of the evidence. This is also the second specification of cause for reversal. Weighing the evidence under the rules laid down in State v. Karpowitz, 98 N. J. L. 546, we think the verdict is not against the weight of the evidence.

The third assignment of error is that the court refused to direct a verdict for the defendant, after the state had rested its case. There was evidence of possession and sales offered by the state. In this state of the evidence the court could not have properly directed a verdict for the defendant.

Counsel for the plaintiff in error further contend that Gar-ton’s case was prejudiced by the cross-examination of Garton by the state’s attorney relating to empty kegs, barrels, &c., found in the barn. It is sufficient to say that this cross-examination was permitted without objection on the part of counsel. In the absence of objection we cannot consider whether the plaintiff in error suffered manifest wrong and injury.

The next point considered in the brief for the plaintiff in error is that during the trial there was present in the court room beer barrels and empty whiskey bottles which were continually called to the attention of the jury by questions directed to various witnesses. No objection was made to the presence of these exhibits, which it is claim had nothing to do with the case being tried. In accordance with the ruling already mentioned, we cannot consider the question as to whether the plaintiff in error suffered any manifest wrong or injury by their presence. It was, however, testified to by an officer that the barrels and bottles had nothing to do with the present case, so that it is difficult to see how their presence, in view of tills testimony, could have been prejudicial to the defendant below.

The next point made in the brief is that the sale upon which the state relied, if made, was outside of the time mentioned in the indictment. This question was not raised in the court below. The time of the sale was a question of fact to bo determined by the jury upon the evidence submitted.

The next point briefed in behalf of the plaintiff in error deals with a question directed to Samuel Katz, a witness for the state, by the court. The same question was also asked upon cross-examination. Katz testified that he never had paid Garton for liquor, and that he had paid Mr. Swift. The prosecutor then moved that this answer be stricken out, and the court struck it out upon the theory that Swift was not being tried. When this action was taken by the court there was no obeetion made by the counsel for the defendant below to the striking out of the answer of Katz. While in one aspect of the case the trial judge was correct, as it was immaterial who Katz paid, if he did not pay Garton or his agent.. There was no evidence in the case that made Swift Garton’s agent in the matter of sales. On the other hand, the answer of the witness Katz did affect the credibility of Swift, and in that aspect of the case it was admissible. As, however, the plaintiff in error made no objection to the evidence being struck out, and there was a sufficient reason for the striking out of the answer, we have, under the circumstances, reached the conclusions that the defendant below did not suffer such manifest wrong dr injury by striking out the answer as to entitle him to a new trial.

The final point briefed in behalf of the plaintiff in error deals with certain portions of the court’s charge. It is unnecessary to say more' than that there was no exceptions taken to the part of the charge now complained of. The course that should have been taken was to have requested the trial judge to charge the law as the counsel for the defendant below thought it should be charged, and then, if the trial court refused to do so, take an exception to the refusal to charge such requests.

Upon a review of the whole case we see no ground which justifies a reversal. The judgment is accordingly affirmed.


text:
    MIDDLESEX FURNITURE COMPANY, INCORPORATED, PLAINTIFF-APPELLEE, v. SAMUEL TURNER AND ESTHER TURNER, DEFENDANTS-APPELLANTS.
    Submitted March 13, 1925
    Decided June 18, 1925.
    Sale of Goods — Warranty—Defendants Purchased Furniture With Warranty That if Moth Holes Were Found They Would Be Made Good — Upon Complaint, Plaintiff’s Agent Found One Hole, Which Was Repaired — Defendant Claims Repair Was Not Satisfactory, and That There Were Other Holes — Claim Not Supported by Evidence — Judgment For Plaintiff Affirmed.
    On appeal from the District Court of the city of New Brunswick.
    Before Justices Tbísnohard, Mixture and Lloyd.
    For the appellants, Louis L. Handler and August G. Strait-wolf.

    For the appellee, Morris Spritzer and A. Dudley Watson.

   Per Curiam.

Samuel Turner and Esther Turner, the defend a nts-appellants, on July 19th, 1924, purchased of the Middlesex Furniture Company, Incorporated, plaintiff-appellee, a three-piece mohair suite of furniture at the agreed price of $260, part of which, namely, $50, the defendants-appellants paid on the date of purchase, leaving a balance of $210 to be paid several days thereafter. It was for this balance that suit was brought.

At the trial it appeared that the plaintiff, through its agent, at the time of sale, stated that if any moth holes were found in the furniture the plaintiff would guarantee to make it all right. Upon this statement the defendants rely as constituting a warranty.

It further appeared that when the plaintiff was notified that the furniture was found defective, they immediately sent an agent to examine the furniture, who found one piece defective, which piece ■ was removed and repaired, and then returned to the home of the defendants, and that, after such repaired piece was returned to the defendants, they retained their furniture in their living-room in regular use by the family and guests up to the time of the trial in the court below, a period of several months.

• The trial judge, sitting without a jury, rendered judgment for the plaintiff, after finding (among other things) “that whatever warranty was made on the part of the plaintiff respecting the furniture was made good by the repairs which the plaintiff made to the furniture.”

We think that there was sufficient proof to support the finding of the trial court that there was a compliance with the warranty.

Plaintiff agreed that if there were any defects in the furniture they would make it all right. It is true that defendants testified that their first inspection disclosed that all three pieces were moth-eaten, but the testimony also was to the effect that plaintiff’s agent, who was sent when complaint was made, found only one piece defective. Defendants admitted that this piece was repaired and returned, and that thereafter the entire suite of furniture was kept and used in the defendants’ living-room for several months before suit was brought.

It is true that the defendants testified that they were not satisfied after repairs were made, and offered to return the furniture, but there was no testimony to show whether their dissatisfaction was due to insufficient repair, or whether to a newly-grown dislike of the suite in general, for which the plaintiff was not responsible.

The judgment below will be affirmed, with costs.


text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. THE PENNSYLVANIA RAILROAD COMPANY, A CORPORATION OF PENNSYLVANIA, PLAINTIFF IN ERROR.
    Decided June 15, 1925.
    Crimea — Manslaughter—Defendant, a Railroad Company, Convicted of Responsibility For Death of Another Because of an Explosion in One of Its Cars — Trial Court Charged That the Jury Might Find That Defendant’s Failure to Print Rules to Govern Employes in Such an Emergency Was Neglect of Its Public Duty — This is Error — Judgment Reversed.
    On writ of error to the Middlesex County Court of Quarter Sessions.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.
    For the plaintiff in error, Theodore Strong.

    For the defendant in error, Joseph E. Stricter.

   Per Curiam.

The above case was removed to this court by a writ of error directed to the Middlesex County Court of Quarter Sessions. The writ brings up the conviction of the Pennsylvania Railroad Company upon an indictment for the manslaughter of Horace Kemmener. The complete record made at the trial has been certified to this court. The case is before us on assignments of error and reasons for reversal.

On September 6th, 1933, a stevedore of the Atlas Powder Company was loading smokeless powder in several freight cars at a pier of the Pennsylvania Railroad Company at South Amboy. During the progress of the work of loading the powder a wooden freight car caught fire without negligence on the part of the railroad company. The car was at a point where a number of boats with persons upon them wore tied to the pier. An engineer of the railroad company, who was not on duty at the time, backed his engine down to the burning car and attached it to the train. Without a crew he drew the train to a point some five hundred yards west of where the railroad crosses upon a bridge a highway. The burning car was between two other cars. The three cars were cut olf and a block placed under them. The burning car was there for a short time when the fire was communicated to a steel car containing powder. This caused a flare. Horace Kemmener was, at the time of the' flare, riding in an automobile on the highway. He was burned to death by coming in contact with the fire which fell from the track to the highway. The block holding the cars in position had been burned, causing the cars to drift towards the bridge crossing the highway.

We have examined the large number of assignments of error and reasons for causes for reversal which have been filed. We feel, however, that it is only necessary to consider one of the assignments of error. This is the assignment of error which deals with that portion of the charge made by the trial court, which reads as.follows: “It has been urged by the prosecutor that the failure of this company to print any rules that would govern the action of its employes in an emergency of this kind, constitutes failure on its part to perform a plain duty to the public. It is for you to say whether that is so, or not, under the evidence in this case. 'You may not infer; you may not go outside of the evidence that has been produced here before you.”

In these words the trial judge left it to the jury to determine whether the failure of the defendant company to provide rules to govern its employes in the emergency with which they were confronted constituted a failure to have enacted rules as to the conduct of employes in an emergencjr which could not be foreseen is sufficient ground for a jury to be permitted to hold a defendant liable for manslaughter. A railroad company could not be expected to provide rules to govern their employes in every emergency. Yét under the portion of the charge quoted above, if any emergency arose for which no rules had been formulated, a jury would be warranted in finding the defendant guilty. To absolve itself a railroad company must have rules for every emergency or be liable to conviction for manslaughter. There was no evidence that other railroad companies had enacted rules to govern their employes in such a situation as was presented in the present ease. It would, in fact, be impossible for a railroad company to anticipate such a situation as arose in the present case, yet a failure to anticipate the impossible and to provide rules of action was made by this portion of the charge of the trial judge a sufficient ground for the jury to find the defendant guilty as charged. Acts of employes may make a defendant company guilty of gross negligence, but such negligence cannot, we think, be predicated upon a failure to enact rules to govern an unforeseen and unusal emergency. As the jury may have found the defendant guilty upon the law as expounded in this portion of the charge, we have reached the conclusion that the judgment of conviction should be reversed.

The judgment is accordingly reversed.


author: Pee Cubiam.

text:
    STATE OF NEW JERSEY v. JAMES H. BOLITHO.
    Decided June 19, 1925.
    Foreign Jury — Application at This Late Date Denied.
    On petition for foreign jury.
    Before Justices Tberchaed, Mirtubr and Lloyd.
    Eor the defendant-petitioner, John A. Matthews.

      Contra, Wilfred II. Jayne, Jr., assistant attorney-general.
   Pee Cubiam.

We have considered the various matters and arguments urged by the petitioner, and have concluded that the petition presented at this late day presents no shfficient reason for an order for a foreign jury.

The application is accordingly^ denied.


text:
    CITY OF LINDEN, PROSECUTOR, v. BOARD OF PUBLIC UTILITY COMMISSIONERS, RESPONDENT — ELIZABETHTOWN WATER COMPANY, CONSOLIDATED, INTERVENING.
    Decided June 22, 1925.
    On application lor writ of certiorari.

    Before Justices Trexchaed and Lloyd.

    Eor the application, Whittemore & McLean.

    Eor the respondent, Collins & Corbin.

   Per Curiam.

Our examination of the application for the writ of certiorari in this case, together with the affidavits and arguments concerning the same, leads us to the conclusion that the writ should be denied, and it is denied accordingly.


text:
    A. G. CONSTRUCTION COMPANY, A CORPORATION, JOSEPH STEIN AND ABRAHAM MARKOWITZ, RELATORS, v. WILLIAM T. KALTENBACH, BUILDING INSPECTOR OF THE CITY OF ELIZABETH, NEW JERSEY, DEFENDANT.
    Argued May 5, 1925
    Decided July 3, 1925.
    Zoning — Apartment-housie in Restricted District — Case Controlled by Union Development Co. v. Kaltenbach et al., 3 N. J. Mis. R. 341.
    On mandamus.

    Before Justices Trenchard, Katzenbacii and Lloyd.
    Eor the relators, Siamler, Siamler & Koesller.

    Eor the defendant, Joseph T. Hague.

   Per Curiam.

The relators obtained a rule to show cause why a writ of mandamus should not issue commanding William T. Kaltenbach, building inspector of the city of Elizabeth, to issue to the relators a permit to erect an apartment-house on premises in said city known as 554-560 Westminster avenue, containing -a frontage of one hundred feet and a depth of two hundred and thirty feet.

The record shows that the relators had complied with the building ordinances and regulations requisite to the obtaining of the permit applied for, but that the permit was refused solely because the construction of an apartment-house would be in violation of a zoning ordinance of the city, and that permission to erect an apartment-house on the premises had been denied by the board of adjustment appointed in pursuance of the. supplement to the Zoning act of 1917, approved March 11, 1924. The case is controlled by that of Union Development Co. v. Kaltenbach, 3 N. J. Mis. R. 341. There is no disputed facts in the present ease.

A peremptory writ of mandamus will therefore be awarded, with costs.


author: Míntukn, J.

text:
    SALVATORE TUCCILLO, PLAINTIFF, v. JOHN T. CLARK & SON, INCORPORATED, AND ELERMAN’S WILSON LINE, LIMITED, DEFENDANTS.
    Decided July 6, 1925.
    Pleadings — Motion to Strike Out — Pleading Created Enough Doubt to Warrant Refusal.
    For the plaintiff, Kent <£• Kent.

    For the defendant Clark & Son, Collins & Corbin.

   The opinion of the court was delivered by •

Míntukn, J.

After an examination of the briefs in the above-entitled action, I have concluded that, in view of the termination of the Chief Justice in Young v. Sterling Leather Works, 96 Atl. Rep. 1016, there is enough doubt in the situation created by the pleading to warrant a refusal of the motion to strike out the complaint as against the defendant John T. Clark & Son, Inc.

Such will be the order.


author: Iyocher, Advisory Master.

text:
    Essex County Orphans Court.
    In the matter of the estate of Louise A. Kellogg, deceased.
    [Decided June 19th, 1925.]
    Wills — Construction—Bequests for Life With Power to Dispose of Corpus — Two Bequests in Superficially Similar Language, In First, However, Provision Is Made for “Use During Life” With “Such Parts as Shall Not be Used by My Sister, etc.,” in the Other the Language is “the Use of” With “Such Parts as May Remain, etc.” — Held, Both Bequests Created Life Estates! Only, That in the Former the Words “Such Parts as Shall Not be Used, etc.,” Entitled the Beneficiary to the Control of the Funds, With or Without Security as the Circumstances Appeared; That the Language of the Other “Such Parts as Remain, etc.,” Constituted a Trust, the Words Referring Only to Depreciation of Such Fund.
    On petition for decree of distribution.

      Messrs. Iioiue & Davis, proctors for tlie petitioner.

      Mr. Philemon Woodruff, proctor for tlie respondent.
   Iyocher, Advisory Master.

Emily Elvira Wright and Robert Russell Wright, two of the legatees under the last will and testament of Louise A. Kellogg, deceased, file their petition for a decree of distribution, which involves the construction of the will of Louise A. Kellogg for the purpose of determining to whom distribution or payment of the legacies should be made.

Idle pertinent provisions of the will are as follows:

“Second. I give and bequeath unto my sister, Emily Elvira Wright, * * * the sum oí five thousand dollars for use during her life, and, at her death, I give and bequeath the sum, or such parts as shall not be used by my sister, unto my nieces, Emily Louise Wright and Clara Dorothy Wlright.
“I give and bequeath to my brother, Robert Russell Wright, of Denver, Colorado, the use of two thousand dollars during his life, and, at his death, I give and bequeath the said sum, or such part as may remain, unto my nieces, ‘Emily Louise Wright and Clara Dorothy Wright.”

Both Emily Elvira Wright and Robert Enssell Wright survived the testatrix.

It is to he observed at the outset that both the legacies in question are alike in the following respects. The bequest to the first taker is expressly for life; no express power of disposition over the corpus is given to the life tenant, and there is a gift over.

On the other hand, the language of the two bequests differ in these respects. The gift to Emily Elvira Wright is of a fund “for use during her life” and a gift over of “the sum, or such part as shall not he used by her;” the bequest to Robert Russell Wright is of “the use of” the fund during his life with a gift over of “the said sum, or such part as may remain.”

As will hereafter be pointed out, the difference appears to be an essential one, and, as a necessary consequence, it becomes necessary to construe the two legacies separately. Eor purposes of convenience the bequest to the brother, Robert Russell Wright, will be first considered.

The first question to be answered is whether Robert is entitled to the fund outright as an absolute gift.

The subject of gifts of property for life or for an indefinite term, with super-added power of disposition over of the fee or principal, expressly granted or implied, has for years constituted one of the most prolific brandies of the construction of wills.

In the first place, it is to lie noted that our courts have drawn a fundamental distinction between those cases in which the gift to the first taker is limited expressly for the term of his life, and those in which it is not so limited. In the leading case of Downey v. Borden, 36 N. J. Law 460, decided by the court of errors and appeals, this rule was enunciated in the following language,:

“The supreme court, in the judgment under review, sustained the claim of an estate in fee in Louise Akins [testator’s widow] in the one-third part of the premises on the rule of construction that a devise of an estate, generally, with a power to dispose of the- same without qualification or limita tion, imports such dominion over the property as that an estate in fee is created. The distinction is between a devise expressly for life with a power of disposition annexed and a devise in general terms with such a power annexed. In the former case an estate for li fe only passes, in the latter, a fee. As a rule of construction the principle is entirely settled that where lands are devised, in the first instance, in language indeterminate as to the quantity of the estate from which an estate for life would result by implication, and words adapted to the creation of a power of disposal without restriction as to the mode of execution are added, the construction will be that an estate in fee is given; but where the quantitjr of the estate of the taker is expressly defined to be for life, the super-added words will be construed to be the mere gift of a power of disposition.”

This rule was applied by the court of errors and appeals to bequests of personality in the case of Pratt v. Douglass, 38 N. J. Eq. 516, and in Wooster v. Cooper, 58 N. J. Eq. 682, 684 Chief-Justice Gummere, speaking for that court, used this emphatic language:

“The rule that a devise of an estate generally with a power to dispose of the same absolutely and without limitation imports such dominion over the property that an estate in fee is created and that a devise over is consequently void, has one exception, which is this: That where the testator gives an estate for life only by certain and express words, and annexes to it such a power of disposal, the devisee for life will not take an estate in fee.

“This exception was recognized and enforced by this court in the case of Downey v. Borden, 7 Vr. 460, and again in the case of Pratt v. Douglass, 11 Stew. Eq. 533, and in the latter case it is declared to apply to bequests of personal estate as well as to devises of realty. These cases have definitely settled the law on this subject in New Jersey, and the propriety of the rule laid down in them is not open to discussion.”

I have been unable to find but a single reported case in this state which appears to be contrary to this rule. In Courter v. Howell, 33 N. J. Eq. 80, 81, decided in the court of chancery, which held that “when the interest or income of a fund is giren to one for life wit°h a limitation over, and the gift is accompanied with a power to the donee of absolute disposition of the fund during life, the donee will be held entitled to the fund absolutely if he is the equitable owner absolutely.”

This case was, however, distinguished in the case of Reeve v. Beekman, 42 N. J. Eq. 613, 619, on the ground that an express .power of disposal had been given to the legatee, the court’s comment being that “although, in the first instance, the gift of the $3,000 was for life, the testator expressly provided that if the legatee should elect, it might he invested in a house and lot and the conveyance made to her, which, of course, made it absolutely hers, she having so elected.”

From the foregoing it is apparent that there can he no doubt that the courts of this state have unequivocally adopted the rule that a gift of personalty expressly for life, with an absolute power of disposition, gives only a life estate and not an absolute interest.

One point remains to be considered in connection with the question now being discussed, the construction of the word “use.” I have been unable to find any reported case in this state construing this word as applied to a bequest of personalty, but the rule stated in 40 Gyc. 1615, that a gift of the use of property for life gives a life estate, appears to be supported by cases in most of the states and to be questioned by none.

It follows, therefore, that Robert Russell Wright is not entitled to the legacy in question outright as an absolute gift.

The next question to be decided is what power of disposition, if any, over the principal of the legacy is impliedly granted to Robert Russell Wright by the use of the words “such part as may remain?” It is to be borne in mind, in considering this question, that we are here dealing with a gift of personalty alone, not with a gift of both real and personal property, or of real property alone, and with an implied power of disposal, not an express power. There appears to be no reported case in this state dealing directly with this situation.

The case of Duncan v. Murphy, 92 N. J. Eq. 682, decided by the court of errors and appeals, appears to be the latest reported case dealing with implied power of disposal. In this case Vice-Chancellor Learning, whose opinion was adopted as that of the court of errors and appeals, used the following language:•

“The various decisions relating to the force to be given to langauge which may imply a right to sell and appropriate the proceeds of sale in a gift which is expressly for life, and which is followed by a gift over of the residue, will be found to be almost universally resolved on the special circumstances of each case. Where the gift has been of personal property only the word ‘residue’ or ‘remainder’ contained in the gift over has been deemed to refer only to possible loss from use or from shrinkage of investments, and, in consequence, importing no right of the life tenant to sell; where the gift lias been wholly of real estate, there appears to have been no ■escape from the conclusion that the ‘residue’ referred to in the gift over related to land not disposed of by the devisee, and, in consequence, imported a right upon the part of the life tenant to sell. The case of Bryan v. Bryan, 61 N. J. Eq. 45, was of that nature, but where the gift has included both real and personal property, greater difficulties have been presented which have, as a rule, resolved on some special feature of the case¡, the tendency, apparently, being to regard the words ‘residue’ or ‘what remains’ contained in the gift over as referring to loss or shrinkage of the personalty arising from use or depreciation of investments in the absence of anything indicating to the contrary in any part of the will. Richards v. Knight, 64 N. J. Eq. 196, was of that class, although in that case'the words ‘what shall remain,’ as there used in one clause of the will, were deemed to refer to personalty by appropriate grammatical construction.”

It may be contended that the language-used in the case just cited, as applied to the facts in the present case, is only dictum, -but in the absence of any authority to the contrary, or of any ground for questioning the ¡soundness of the rule enunciated, I think that the rule laid down in that case should be considered as controlling the case now under consideration, and I accordingly find that Robert is not entitled to expend any part of the principal of the legacy of which he is the life tenant, and that the words “such part as may remain” refer to a possible loss from shrinkage of investments.

The next question to he considered is whether Robert is entitled to receive from the executors the fund itself or only to he paid the income thereof during his lifetime.

Tt -would appear that this question is answered by the case of Howard v. Howard, 16 N. J. Eq. 486,487, where the court used the following language:

“The rule is that where there is a general bequest for life with remainder over the whole must he sold and converted into money by the executor, the proceeds invested, and the interest only paid to the legatee during his life.
“The rule prevails except where there is an indication of an intention on the part of the testator that the legatee for life should receive the property bequeathed.”

In the case of Olt v. Tewksbury, 76 N. J. Eq. 4, 7, Vice-Chancellor Emery said :

“The general rule in relation to payments or delivery to the life tenant of personal property or the principal, to the income or use of which he is entitled for life, is the one declared by Lord Eldon in the leading ease of Howe v. Earl of Dartmouth (1808). 7 Ves. 187, that where personal property is bequeathed for life with remainder over in general terms and not specifically, the property is to he converted and invested by the executors and the income only paid to the life tenant. This general rule has been approved in so many cases in this state as to have become a settled rule of construction and it must prevail, unless there be in the will an indication of contrary intention, and that the tenant for'life is to enjoy the possession of the property in specie and is given specifically * * *.”

In the case of McDonald v. Irvine (1877), 8 Ch. Div. 101, where the general rule and the effect of these cases on its application was considered, it was concluded by the court of errors and appeals that it was altogether a question of a-fair and reasonable, construction of the will, in reference to the intention of the testator that the property in question was to be enjoyed in specie, and that the general rule requiring conversion was not to be applied. And it was said by Lord Justice Thesiger (at p. 122) that in every case where such intention was found to exist (except one which was referred to as having gone almost to the extreme length consistent with the existence of the rule at all) there were either words in their natural and literal sense importing use or enjoyment of the property in the state in which the testator left it at his death, or directions contained in the will as to the conversion which were inconsistent with a conversion by the court taking place upon the death of the testator. And it was further held to be the result of the cases (Lord Justice James at p. 121¡.) that it was quite clear the rule in Howe v. Dartmouth, supra, must be applied, unless upon a fair consideration of the will you find sufficient indication of intention that it is not to be applied * * *. This is the principle to be applied here * * *, the test being, as I think it should be, whether the will, fairly considered, indicates such intention that such an intention that the property in question is specifically bequeathed and to be enjoyed in specie as to make the general rule for conversion inapplicable; to the same effect are Ackerman v. Vreeland, 14 N. J. Eq. 23, 27; Rowe v. White, 16 N. J. Eq. 411, 416; Parker v. Moore, 25 N. J. Eq. 228, 238, and Helme v. Strater, 52 N. J. Eq. 591, 601.

In the case of In re Van Wagoners Estate, 97 Atl. Rep. 893, there was a bequest to the granddaughter of “the sum of $2,000 during her natural life, and, after her decease, to her issue, but if she dies without issue, then I give and bequeath the same to my son, William, and my daughter, Letitia, to be divided equally between them.” At page 895 of the opinion Vice-Chancellor Poster, sitting as vice-ordinary, after quoting the rule in Ott v. Tewksbury, said that—

“Personal property, including money, may be bequeathed for life with limitation over, and, if the estate is given in money, the donee is entitled to the interest and income only, and the principal is retained by the trustee or executor.” Har rison's Executors v. Stockton's Executors, 19 N. J. Eq. 235.

Applying tlie rule in Olt v. Tewkesbury, supra, to the facts in the ease now under consideration. I am unable to find that “the will, fairly construed, indicates such an intention that the property in question is specifically bequeathed and to be enjoyed in specie as to make the general rule for conversion inapplicable.'5

It follows, therefore, that the fund in question should he retained by the executors as trustees in trust to invest the sum and to pay the income thereof to Robert Russell Wright during his lifetime, and, at his death, to distribute such part thereof as remains to the residuary legatees mimed in this paragraph of: the will.

Taking up now the legacy for the benefit of Emil}' Elvira Wright, and considering the same questions as those just considered in connection with the legacy for the benefit of Robert Russell Wriglit, it is at once apparent that the first question, namely, whether she is entitled to the fund outright as an absolute gift, must be answered in the same way as in the case of Robert, and for the same reasons and in this connection 1 am unable to differentiate, so far as the application of the rule hereinbefore quoted from 40 Gyc. 16Li, to the effect that a gift of the use of property for life gives a life estate is concerned, between the words “the sum of $5,000 for use (hiring her life55 used in the bequest to her, and the words “the use of $3,000 during his life55 used in the legacy to Robert.

To the second question, however, namely, what power of disposition, if any, over the principal of the legacy is impliedly granted, the answer, it would appear, must be different from that in the case of Robert. Tt is true we are aiso dealing with a gift of money alone, hut to apply in this case the rule hereinabove quoted from Duncan v. Murphy, 92 N. J. Eq. 682, supra, to the effect that the words meaning residue or remainder refers only to possible loss from shrinkage of investments, would be to disregard the plain, natural meaning of the words “such part as shall not be used by my sister.55

In this case, as in all other cases of construction of wills, the court should never lose sight of the cardinal principle, the fundamental rule of all the rules of construction, that the intention of the testator, as expressed in the will, is to be given effect so far as it is possible to do so, in the very terse and epigrammatical language quoted by Yice-Chancellor Backes in Smith v. Wagner, 91 Atl. Rep. 599, “the intention of testator is the law of wills.”

The necessary and unavoidable implication of the words used by the testatrix is that Emily is to have the power of using such part of the principal of the fund during her lifetime as she may see fit. To construe them otherwise would be to disregard their sense, and to make, not to construe, the testatrix’s will'. We may reconcile the result reached with the rule laid down in Duncan v. Murphy, supra, by pointing out that here the testatrix has gone further than to use merely a word meaning residue or remainder. She has used words meaning a residue or remainder after the life tenant has herself spent such part of the fund as she desires, and “resolving the decision on the special circumstances of the case,” to quote from the language of the opinion in Duncan v. Murphy, supra, the intention of the testatrix thus expressed must be given effect by the court. It follows, therefore, that Emily is entitled to use so much of the principal of her legacy as she may see fit to do.

Taking up in turn the third question considered, whether or not Emily is entitled to receive from the executors the fund itself, it necessarily follows that here also the answer must be different from that in the case of Robert. Here, in the language of Ott v. Tewksbury, supra, the will, fairly construed, does indicate such an intention that the property in question is specifically bequeathed (in the sense that the word “specifically” is used in that case) and to be enjoyed in specie, as to make the general rule inapplicable; here, in the somewhat aj,propriate language of Howard v. Howard, there is an indication on the part of the testatrix that the legatee for life should receive the' property bequeathed. The intention of the testatrix that Emily is to have the privilege of expending such part as she pleases of the principal of the legacy can be given full effect only if the fund is paid into her hands, and that should accordingly be done.

It may be observed at this point that the fact that the result of the foregoing findings is to give fundamentally different effects, so far as the interests of the two life tenants,, are concerned, is not to be overlooked. It might well be argued that we have here a testatrix making provisions for an aged brother and sister, in each case giving to him or her the use of a fund during his or her lifetime with remainder over to others, and that, consequently, she intended that whatever interest the one took in her fund the other should take in his. Indeed, counsel for both the petitioners and the respondents, in their arguments based on the relative ages, financial situations and relationship to the testatrix of the life tenants and remaindermen of the legacies in question tacitly take this position, and at first blush it might seem to have some foundation. However, assuming that the relations of the life tenants as to financial and other resources and as to relationship to the testatrix — of course, not in the sense of consanguinity — were precisely the same, and that there is little difference in their ages, yet the testatrix had the unqualified Tight to provide lavishly for the one, and insufficiently, or not at all, for the other. Tt is trite law that, subject only to compliance with the familiar' requirements of the statute, every testator may dispose of his property absolutely as he pleases and without regard to any moral or ethical consideration.

It is what the testator has done, not what he should have done, or might reasonably have been expected to do, that the court is called upon to decide, and it is, as has already been said, the testator’s intentions expressed in his will that is to be given effect and none other, and, therefore, in this case, if it be said that the intention of the testatrix was to provide for her brother and sister alike, the complete answer is that she has not expressed that intention in her will. On the contrary, the will itself contains, at least, two quite significant indications that she did not intend to provide for the brother and sister alike. TKe first is that the amount of the gift to the sister is two and one-half times that of the gift to the brother. The' Second is that the language of the two bequests, while superficially similar, is, as has been heretofore pointed out, different throughout, and it must be remem.bered that wo are ‘not here dealing with a literary composition where the rules of rhetoric would explain an avoidance of alliteral repetition conveying the same meaning in two separate passages, but with a legal document where accuracy is essential. It séems an inevitable conclusion that the only object the testator could have had in using different phraseology' in the second bequest was to express a different 'intention toward the second legatee. It must be apparent that when a testator, in disposing of two sums of money to two different beneficiaries, uses entirely' different language in the gifts, there must be, in the absence of other indications to the contrary'; a presumption that he intended to express different intentions with regard to the respective beneficiaries and the interests to be taken by them.

Having found that the executors should pay over to Emily Elvira Wright the principal of the fund bequeathed to her as life tenant, the question may be raised as to whether she should be required to give security' under the provisions of 3 Comp. Stai. p. 3089 §S.

An examination of the statute and of the reported cases on the subject leads to the conclusion that this question cannot be disposed of at- this time for two reasons — first, because it has not been properly raised, and second, because, if it had been properly ráised, the evidence necessary ‘ to determine it is not before‘the court. At the outset it is to be noted that the statute in question is permissive, not mandatory'. It does not require either the demanding by the executor or the giving by the legatee of security' in any' case'. So far as concerns the executor, it imposes no duty and prescribes no liability, but grants' á privilege. As was said by Vice-Chancellor Foster, sitting in the prerogative court, in the case of In re Van Wagoners, 97 Atl. Rep. 893, 895.

“Our statute concerning legacies provides that an executor shall not be compelled to j)ay or deliver the property bequeathed to a person for life until security shall be given to the orphans court having jurisdiction over such executor’s accounts, in such sum and form as, in the judgment of the court, shall sufficiently secure the interest oí the person or persons entitled in remainder.”

In the case of In re Ryerson, 26 N. J. Eq. 43, it was held that the statute under consideration does not make it obligatory on the executor to require security, hut leaves it to their discretion. To the same effect is Dodson v. Sevars, 52 N. J. Eq. 611, and 33 N. J. Eq. 347; McDermott v. Zimmerman, 89 N. J. Eq. 215; Howard v. Howard, 16 N. J. Eq. 486.

Prom an examination of the cases above cited it is perfectly clear that it lies, in the judgment and discretion of the executor, to be exercised in good faith and with reasonable care, whether or not he shall demand security from the legatee for life, as iu all other matters pertaining to the administration of the estate. In general, no personal’liability can attach to him; unless he acts in liad faith or negligently, and that not until after the executor has demanded security has he jurisdiction to determine and decree what amount and what form or security will sufficiently protect the interest of the remaindermen, and, of course, the judgment cf the court must be based upon and determined by the facts and circumstances of the case to be brought before it, as in all other cases, Incompetent evidence’.

I‘will advise a decree in accordance with the foregoing conelusions.


author: Buchanan, V. C.

text:
    William H. Price et al., executors, complainants, v. The United Hebrew Charities et al., defendants.
    [Decided July 7th, 1925.]
    Trusts — Trustee Named is Foreign Corporation — Executors Ask For instructions Whether Fund Shall be Paid Over Without Security — No Bond Required by Statute, But Court May, in Its Discretion, Require Security — Trustee is Corporation of Highest Standing, and Under All Circumstances Bond Will Not be Required, But Trustee Shall File Irrevocable Power of Attorney to Secretary of State to Accept Service in Any Proceeding Involving the Trust.
    On final hearing.

      Mr. George J. Plecliner, for the complainants.

      Mr. Maximilian T.. Rosenberg, for the defendant United Hebrew Charities.

      Mr. Theodore Baches, assistant attorney-general.
   Buchanan, V. C.

By the will of Amelia Marks, deceased (a resident of New Brunswick, New Jersey), it is provided as follows:

“Seventh. At the end of the period of ten (10) years, above mentioned, I giye, devise and bequeath the principal sum of my said estate,' then in the hands of my executors, with any or all accujnulations of interest thereon, to the United Hebrew Charities, a corporation, who present address is number 356 Second avenue, New York City, in trust, to keep the same safely invested, and to use the interest and income thereof, for the support and maintenance of the Jewish poor people of the city of New Brunswick, New Jersey.”

The ten-year period has elapsed, the executors are ready to pay over the fund, but because the named trustee is a New York corporation, very properly have sought directions from this court to determine whether this should he done without security being given by the 11011-resident trustee. Since the trust' is a charitable trust for the benefit of the public, or-a portion of the public, the attorney-general has been made a party defendant. The 11011-resident trustee by its answer declines to accept the trust, if required to give bond; its reason is that it thinks the trust funds should not-be diminished to the beneficiaries by the annual premium on the bond.

It is conceded that there is no obligatory requirement of law that bon'd should be given. The provisions of the Orphans Court act, section 51, apply only to non-resident e.rcndors (where the testator has not absolved such from the duty of giving security). It is also conceded, on the other hand, that this court may, in its discretion, require the giving of such security. Cf. In re Satterthwaite, 47 Atl. Rep. 227 (which was the case of a private trust). No ease has been discovered where security has been required by the court in such a case.

Tt appears, and is admitted, that the named trustee is a corporation of the highest standing, with a long record of efficient administration of charities in its particular denomination, involving many years and very great sums annually. All parties are desirous that it should act in the present instance. The attorney-general recommends that security be not required.

The testatrix obviously knew that the corporation was a non-resident, but imposed no testamentary requirement for security. Presumably, she knew that there was no statutory requirement.

Under all the circumstances the trustee will not he required to furnish security. It will, however, be required to execute an irrevocable power of attorney to the secretary of state of this state, authorizing him to accept for it service of all process issued out of the courts of this state in cases or proceedings involving this trust and the administration thereof, in order that the courts of this state may maintain jurisdiction over the. same for the benefit of the beneficiaries who are residents of tbis state.


author: Buchanan, Y. G.

text:
    Mahala Sherman, complainant, v. Frank Gleason et ux., defendants.
    [Decided July 7th, 1925.]
    Conveyances — Bill to Reconvey by Grantor, an Aged Woman— Misrepresentation, Fraud or Undue Influence Not Shown1— Grantor, Apparently, Did What She Wanted to do — Relation of Trust and Confidence Existed Between Grantor and Grantee, Placing Burden on Grantee to Show Neither Deception Nor Undue Influence and That All Was Fair, Which He Has Done — Not a Case Coming Within Rule Requiring Independent Advice.
    On final hearing.

      Mr. James J. McGoogan, for the complainant.

      Mr. Harry J. Able, for the defendants.
   Buchanan, Y. G.

The bill is filed by complainant, a widow aged seventy-six or seventy-seven years, for decree for reconveyance to her of premises conveyed by her to defendant Gleason in May, 192'i-, on the ground that the conveyance was without consideration; was improvident and stripped her of most of her property ; was made by hex without fully understanding the nature and effect of the transaction and without her having independent advice, and -was the result.of undue influence by defendant. The deed reserved a life estate to complainant.

The evidence shows that defendant occupied a position toward complainant almost like that of an adopted son; that she had repeatedly expressed her intention of giving him the property when she died; that, in addition to the farm, she had some household goods (and, presumably, farm implemeuts), and an annuity of nine hundred dollars ($900) a year. Defendant occupied a position of confidence toward complainant; ho had a power of control over her bank account. which lie had never exercised, and she, naturally, considered his advice, though she was by no means dominated or controlled by him.

It clearly appears that the intent of both parties was to protect both against the possibility that other persons less scrupulous might get the property away from her, thus depriving her of her means of support, and depriving defendant of his expected testamentary benefaction, and also of payment of an indebtedness of three thousand dollars ($3,000), which I am satisfied existed from complainant to defendant.

Defendant was not guilty of misrepresentation, fraud or undue influence. His lawyer, who drew the deed, explained the nature of the transaction to her, and sent her to another lawyer, for her to make like inquiry. The evidence, as a whole, leaves no practical doubt but that she understood that she was giving to defendant the title to the property, which was to remain in her possession and control until her death, she having the n.se and .income therefrom, and defendant getting possession and benefit only at her- death; that she could not sell or mortgage it, but was putting that out of her power, and that the thing she was doing was exactly what she wanted to do.

It is true that the proofs do not show that complainant had independent advice, but the case is not one which comes within the rule of Post v. Hagen, 71 N. J. Eq. Complainant was not dependent on defendant; they did not live together; he did not occupy a dominant position toward her; her mental capacity and her powers of volition and determination were strong and unimpaired, as the evidence shows, and, moreover, she did not strip herself of her means of support, because she retained the life estate, and the personal property consisting of household goods and farming implements, and had also the annuity of nine hundred dollars ($900). While a relationship of trust and confidence existed between thém, it was not one where defendant occupied the dominant position, but rather the reverse; defendant’s situation was that of a trusted employe, or a son of a still vigorous and independent parent. It is clear, also, that the case does not come within the- rule of Haydock v. Haydock, 34 N. J. Eg. 570. See Pearce v. Stines, 79 N. J. Eq. 51, where the several classes of cases are considered and distinguished.

The.facts in the case at bar are nearly analogous to those in Le Gendre v. Goodridge, 46 N. J. Eq. 419; affirmed, 48 N. J. Eq. 308, in fact, they are even stronger in defendant’s favor, for the evidence to my mind does not show that defendant was in a position to exercise a dominating influence.

There did exist, as I have said, an actual relation of trust and confidence between the parties, and, hence, the transaction is subject to the rule in Hall v. Olterson, 52 N. J. Eq. 522, casting upon defendant the burden of proof to show that no deception was practiced, no undue influence used, and that all was fair, open and voluntary and well understood. That burden, I think, he has sustained. The fact that complainant, apparently, as the result of statements and influence of others, subsequently changed her mind, cannot justify the setting aside of the completed gift.

The bill will be dismissed, under all of the circumstances, however, without costs.


author: Lloyd, J.

text:
    HARRY T. WILLITS, PROSECUTOR, v. BOROUGH OF BEACH HAVEN, IN THE COUNTY OF OCEAN, RESPONDENT.
    Decided July 7, 1925.
    Municipalities — Emergency Improvements — Improvement Complained of Was an Emergency, as Public Health Was Menaced — Act of 1925 Places the Determination of an Emergency in the Hands of the Governing Body, and When Determined in Good Faith, Judicial Authority Cannot Substitute Its Judgment.
    Eor the prosecutor, James Mercer Davis.

    For the respondent, Howard Ewart.

   The opinion of the court was delivered by

Lloyd, J.

The prosecutor applies for a writ of certiorari to test the validity of a contract made by the borough of Beach Haven for certain additions to the borough electric light plant, and also to test the validity of the action of the borough council in authorizing the issuance and sale of certain emergency notes or bonds wherewith to pay the costs of the work to be done under the contract.

The governing body of the borough consist of a mayor and six couneilmen. The work to be done was on May 9th, 1925, at an adjourned regular meeting of the council, declared by the affirmative vote of five couneilmen to be- an emergency requiring immediate action looking to an addition to the borough’s electric plant, and appropriating the sum of $35,000 to pay the estimated costs and authorizing the issuance and saLe of bonds in like amount wherewith to pay the costs of the improvement. Advertisements for bids under the contract were inserted and the contract awarded.

On application a rule was allowed to show cause why a writ of certiorari should not be issued returnable 'June Istj 1925. At the time of the granting of the rule steps had been taken by the municipal authorities and by the contractor in fulfillment of the contract.

The proceedings taken by the borough council in their form and regularity are not attacked in this application, but it is claimed that the eoutraet and the proposed issuance of bonds were ultra vires by reason of the fact, as claimed, that the improvement of the plant was not an emergency within the terms of the Home Rule act of 1920 and of- the Budget act of 1918.

The municipal action was taken under section 25 of the Budget act as amended in 1919, chapter 178, which declares that “upon the happening of any emergency caused by fire, flood, storm, explosion, epidemic, recovery of judgment, act of God or public enemy, or for the preservation of order or public health, or for restoring to a condition of usefulness any public property, the usefulness of which has been destroyed by accident or by happening that could not have been anticipated * * * any municipality being without funds to meet the necessities and conditions created thereby, may, by vote of at least two-thirds of the governing body of such municipality,” make appropriations, &c. In the amending ant of 1919 there is this proviso, “provided, further, that the determination of the governing body embodied in the resolution authorizing such notes or bonds, or - any renewals thereof, if adopted by a three-fourths vote, shall be conclusive as to the character and existence of an emergency within the meaning of this act.”

The affidavits presented in the case disclose that the addition to the electric plant contemplated in the action of the borough is essential to the supply of water and to the preservation of the public health, inasmuch as the old "system of furnishing power for the water supply had broken down, and that the sewage systám is prohibited from entering the bay, making necessary the utilization of the electric power for both, the supply of water and for the pumping of sewage into the sedimentation tanks. It is obvious that these conditions are a serious menace to the public health and public safety. I am inclined to tliink, therefore, that the present situation is an emergency, as appears by the proofs fairly arising under the proper construction of the statute. It will be observed, however, that the amendment of 1925 places the determination of the question of what is or wliat is not an emergency in the hands of the municipal governing body, to the extent that its determination by vote of three-fourths o£ the members shall be conclusive as to the character and existence of the emergency within the meaning of the act. When thus determined in good faith, it is clear that the action of the council is conclusive and binding on the courts. Judicial authority cannot substitute its judgment for that of the body in which the decision has been reposed by the legislature. If authority were needed for a proposition so obvious, it is to he found in McDonald v. Board of Freeholders, 122 Atl. Rep. 802, in which Mr. Justice Parker, speaking of tlie proper construction oí another part of the same section, says "it is all in the sound discretion of that body.”

Both for the reason that the action of the council adopted as it was by a three-fourths vote is controlling, and for the further reason that, even were I permitted to look into the question of emergency, it is clear that the emergency is established by affidavits, I am constrained to refuse the writ of certiorari applied for.


text:
    SAMUEL BARBA, RESPONDENT, v. ISADORE GUNSBERG AND ESTHER GUNSBERG, APPELLANTS.
    Submitted March 20, 1924
    Decided July 8, 1925.
    Sale of Land — Recovery of Deposit on Contract — Purchaser Extended Time For Passing Deed, But Before Extended Time Expired Communicated His Desire to Rescind — Desire Not Acceeded To — Purchaser in No 'Position to Demand Return of Deposit.
    On appeal from tile'First District Court of Jersey City.
    Before Justices Kalisch. Katzenbach and Lloyd.
    For the appellants, Kelsey é Ludioig.

    For the respondent, William M. Bysdyh.

   Pee Curiam.

This appeal is, from a judgment rendered against appellants by the trial judge sitting without a jury in the First District Court of Jersey City. This suit was to recover a deposit of $500 held by appellants as part of the purchase price of real estate under an agreement of sale.

After the making of the agreement delays occurred in effecting a settlement by reason of changes in the amounts of cash and mortgages to be accepted as part of the purchase-money. Finally, the 18th day of May, 1923, was ñxed as the date, but on this date James S. Erwin, Esq., who was preparing the title papers, was detained in court. Barba expressed dissatisfaction over the delay and was advised by Mr. Erwin that he could either demand the return of his deposit of $500 or agree to an extension of time for closing title. Barba expressed his desire to take the title and agreed to attend at Mr. Erwin’s office on May 28th, 1923, to close the matter.

Two or three days later respondent communicated to appellants a desire to rescind the contract, but this the latter refused to accede 'to, and informed respondent that they would be ready to pass title on the 28th as agreed. Erom the findings of the trial judge it appears that the appellants were ready to make conveyance on May 28th, and attended at the time and place appointed for the purpose. The respondent failed to attend, and on June 7th, a formal tender of performance being made by appellants, refused to accept the deed and declined to take the title. Thereupon the suit to recover the $500 deposit was instituted.

In this situation is it plainly apparent that the respondent was in no position to demand a return of the moneys paid on the contract. He had agreed to the extension of the time of settlement, and it was his duty to abide thereby', or, if lie intended to withdraw therefrom, accord appellants a reasonable time within which to comply with the terms of the agreement. Nissel v. Swinley, 76 N. J. L. 288. He could not summarily -rescind his contract, and, as the appellants have been in no default, it was the duty of the trial court to give judgment for the appellants on the claim for $500.

It is argued, however, by the respondent that, inasmuch as no exception was taken to the judgment of the trial court, this court cannot consider the error complained of. This was true prior to the statute of March 15th, 1916, but by that act, "where causes are submitted to the court to bo heard without a jury, any error made by the court in giving final judgment in the cause shall be subject to change, modification or reversal [on appeal] without the grounds of objection having been specifically submitted to the court.” This act applies to District Court proceedings. Smith v. Cruse, 3 N. J. Adv. R. 619.

The judgment is reversed.


author: Minttjkn, J.

text:
    AUGUST QUASTADISGNO, PLAINTIFF, v. JOHN T. CLARK & SONS, DEFENDANT.
    Decided July 6, 1925.
    Pleadings — Motion to Strike Out Pleadings Created Enough Doubt to Warrant Refusal.
    Por the plaintiff, Anthony P. Laporta.

    Por the defendant, Collins & Corbin.

   The opinion of the court was delivered by

Minttjkn, J.

After an examination óf the briefs in the above-entitled action, I have concluded that, in view of the determination of the Chief Justice in Young v. Sterling Leather Works, 96 Atl. Rep. 1016, there is enough doubt in the situation created to strike out the complaint as against the defendant John T. Clark & Sons, Inc.

Such will be the order.


author: Kocher, Advisory Master.

text:
    Essex County Orphans Court.
    In the matter of the estate of Mary Curran, deceased.
    [Decided July 7th, 1925.]
    Accounting — Gifts of Savings Bank Pass Books With Intent to Make a Gift of the Deposit Carries With It the Fund — Courts Take Liberal View in Relation of Gifts of Choses in Action.
    On exceptions to account.

      Messrs. Parker, Emery & Yanliiper, for the accountant.

      Messrs. Mulligan £ Koenig, for the exceptants.
   Kocher, Advisory Master.

Bridget Connor, the administratrix of the estate of Mary Curran, deceased, filed her account as such executrix, to which account exceptions were filed by three of the grandchildren and next of kin of intestate.

Among the exceptions is one wherein it is objected that accountant is not entitled to allowance for the amount paid Bridget Connor, individually, under claim of gift of a certain hank account in the Howard Savings Institution to the amount of $3,584.33.

Upon the cover of the bank book the following sections from the by-laws of the Howard Savings Institution are printed:

“Article 10. All deposits shall be entered in the books of the institution, and a deposit book shall be given to each depositor, in which .the deposits shall be entered, and which shall be the voucher for the depositor; and possession of such deposit book may be treated by the institution as authority to pay the amount due thereby to the .person producing the same, and all payments so made shall be deemed good and valid payments to the depositors, respectively.
“Article 11. All drafts must be made personally, - or by order in writing of a depositor, if the institution has the depositor’s authorized signature, or by letter of attorney duly authenticated, but no person shall have the right to demand any part of the principal or interest without producing the deposit book that such payments may be entered therein.-’

At the hearing-it was suggested that before proceeding to take testimony as to whether there was an actual gift of the bank book, that the question of law as to whether there could be a gift of such bank book without a draft or order in writing by the depositor, no such draft or order haying been given with the bank book should be considered.

It appears to be settled in this state that the delivery of a-savings bank pass-book, with the intent to make a gift of the deposit, carries with-it the fund. Van Wagenen v. Bonnot, 72 N. J. Eq. 143; concurred in by the court of errors and appeals, 74 N. J. Eq. 843; Laing v. Durand, 84 N. J. Eq. 404. In the Van Wagenen Case, supra, however, no mention of any draft, or the requirements of one, is made, and, in the Laing Case, supra, this significant language was used: “There seems to be no requirement for a draft in making withdrawals. Deposits and withdrawals are entered in the pass-book as they are made.

“It appears from the decisions of our courts that they take a liberal view in relation to gifts o£ choses in action. Thus, in Travelers Insurance Co. v. Grant, 54. N. J. Eq. 208, it was said that bonds and other non-negotiable obligations for payments of money may be subject of a valid gift, and that a delivery of the obligation to the donee, without written assignment, • but with a clearly-manifested intention to make a' gift, is sufficient to satisfy the rule requiring delivery of the'things given. The sensible rule is that the delivery must be such a tradition as the nature of the subject admits of. ¿Did, surely, the delivery of the formal writing, vyhich evidences the debt and forms a foundation of the right of .action, is.the best and only delivery of which the subject is capable.” And in that case it was held that a policy of life insurance payable to “the legal representative of the insured” may be made the subject of a gift in the same manner as a bond or other moneyed obligation, with the same results and without a formal assignment, even though' the policy contained a provision that no assignment hereof will be noticed by this company unless made in writing, and unless a copy of such assignment shall be given to this company within thirty days after its execution.

Li the case of Corle v. Monkhouse, 50 N. J. Eq. 537, it was held that the doctrine now generally recognized as the true one is that a valid gift of a promissory note, held by the donor against another person, may be made by simple delivery and without writing of any kind.

Perhaps the most accurate statement of this doctrine to be found in any of the cases is that which was made by OhiefJustice Shaw in Parish v. Stone, 14 Pick. 198 (205), where he says: “But whatever doubts may have existed, it has been decided that, as an assignment of a chose in action is now recognized as a good transfer of the equitable interest, and as such equitable assignment is manifested by a delivery over of the bond or other security for money by a gift of such bond, accompanied by an actual delivery of the bond, an equitable interest vests in the donee, and the executors of the donor, in whom the legal interest remains, are mere trustees for the donee, and bound to permit the donee to use their names to enforce the payment of the bond at law.”

No case decided by the courts of New .Tersey directly in point has been pointed out, nor have I been able to discover any such ease, but it would appear from air application of the principles enunciated in the cases above cited that it should be held that the delivery of a savings bank book with the intent to make a gift of the deposit carries with it the fund. This point has been variously decided in other states, the great weight of opinion favoring the rule above stated. The case of Ridden v. Thrall, 125 N. Y. 572, decided by the court of appeals, is, however, directly in point, and the by-laws printed upon the savings bank book were, to all intents and purposes, the same as those in the case under consideration, and the court, in deciding that the gift of the bank book ■ without any order or power of attorney by the donor, used the following language: “Suppose the plaintiff had purchased the book, and had thus become the absolute owner thereof, he could have drawn the money as owner on presentation of the book, and the bank could not have required as a condition of payment that he should procure a power of attorney j or an order from 'one having no interest, legal or equitable, 'in the deposit. The owner in such a case should produce satisfactory evidence of his ownership of the book, and if the bank refused to pay he would be obliged to establish such ownership by any competent evidence, and nothing more, and his right as purchaser would be no greater than his right as donee. lie has the same right to enforce a payment that he would have had if he had been the donee of any non-negotiable chose in action, or a certificate of deposit, or unendorsed note. He could establish his right to payment in such a case by any pioof showing that he was the absoluto legal or equitable owner.

From the reasoning of the various New Jersey decisions above quoted and that contained in Ridden v. Thrall, supra, I am of the opinion that a savings bank book may be the subject-matter of a gift, even though conditions concerning the withdrawal of the fund are those which appear in this case, without any order or power of attorney by the owner of the sayings bank book.

No testimony as to the circumstances surrounding the gift was taken in this ca'se. As has' been said before, it was thought wise to solve the legal problem before burdening the record' with testimony which might become unnecessary. •Counsel may, therefore, arrange for an early date in which the necessary testimony can be taken.


author: Caefrey, J.

text:
    Essex County Orphans Court.
    In the matter of the estate of Henry C. Diehl, deceased.
    [Decided June 29th, 1925.]
    Trusts — Life With Remainder Over — Stock Dividends, Corpus or Income — Stock Dividend Here Made Possible by Increased Valuation of Assets — McCracken v. Gulick Case Considered But McCoy v. McCloskey Followed.
    On accounting.

      Messrs. Congleton, Stallman & Hoover, proctors for the trustee.

      Messrs. Vorler, ZinJc <& Lafferly, proctors for the exceptant.
   Caefrey, J.

Henry O. Diehl died in December, 1915. Under his will Mary J. Whaley was the beneficiary of the trust created for the term of her natural life, with remainder over. Included in the estate held in trust were four hundred shares of the common stock of the Belt Railroad and Stockyards Company. The par value of the common stock outstanding was $2,000,-000. On June 26th, 1920, the corporation declared a dividend of common stock of a par value of $1,000,000. The estate became entitled to two hundred shares of the stock declared. representing a fifty per cent, stock dividend on its holding of four hundred shares. Mary J. Whaley contends that the two hundred shares of stock so declared comes within the. category of rents, issues and profits, thereby entitling her to the same as income. The trustee has filed his account and asks for instructions as to the disposition of the stock received as a dividend. The life, tenant, Whaley, thereupon filed exceptions to the account, alleging a failure of the aeeountant to include in the income account a part of the stock dividend of two hundred shares.

The question raised herein is to what extent this stock dividend shall be viewed as corpus and to what extent as income. ■ ■

The evidence before the court is in the form of deposiitons de bene esse- of'S. C. Rauh and H. D. Lane, both residents of Indianapolis, and president and auditor, respectively, of the company. In addition to that there is a statement of income and property values of the corporation, marked Exhibit A, showing the income and property values, including dividends, from December 31st, 1910, to May 31st, 1920. This report, in conjunction with Mr. Rauh’s testimony, shows that the surplus account had increased very little from 1911 (at which time a prior stock dividend was declared) up to 1920, when the stock dividend in question was voted. To some extent this surplus account represents money that was left after the pa3anent of the ordinary dividends, and used from time to time for betterments. The testimoi^ of Mr. Rauh further shows that the increase in the surplus account from 1915 to 1920 came from an enhancement of the capital assets, and at the time of the declaration of the mill-iohdollar dividend in 1920 it could not he paid in cash. ■ Mr. Lane’s testimony is to the same effect, with an additional recitation that on May 28th and appraisal of the physical propel^7 was .made, which served as the real basis of value on which the stock dividend in controversy7 yvas declared.

Eor the purpose of this memorandum there is no necessity of setting out in detail the figures yydiich- are attached to the deposition, but m37 examination of the testimony, in conjunction yydth the report submitted, leads me to believe that the stock dividend was made possible by the increased valulation of the corporate assets. This question has been- presented many times, and it has been discussed in a long line of cases. Lang v. Lang, 56 N. J. Eq. 603; Day v. Faulks, 79 N. J. Eq. 66, and cases cited. In McCracken v. Gulick, 112 Atl. Rep. 317, Mr. Justice Swayze declared.that upon the earning of an extraordinary-dividend, or on account of an unusual accumulation of earnings, a life tenant is entitled to receive, at least, soni(> of the extraordinary dividends. With this rule in mind, hut distinguishing the facts in that case from the one under consideration, it seems to me that the rule laid down in McCoy v. McCloskey, 94 N. J. Eq. 60, is conclusive, because T am satisfied Unit the stock dividend represents nothing more than the enhanced value of the assets of the Belt Railroad and Stockyards Company. It follows, therefore, that the stock dividend, in its entirety, will be -considered as corpus.

Therefore, the exception by the life tenant will be disallowed and the trustee is instructed to include the stock dividend as corpus of the estate;.