author: Veedenbtjbgh, J.

text:
    Anna C. Pierson et al. v. Emma Gardner et al.
    [Submitted December 9th, 1912.
    Decided March 14th, 1913.]
    Certain residents of this state became subordinate members of a voluntary beneficial association, composed of a supreme or general circle, and circles or groups of members affiliated with and subordinate thereto, and had, as a subordinate circle 193, accumulated a fund of money. Certain other members of said supreme circle, who were residents of the State of New York, subsequently, and without the knowledge or assent of the first-named members, procured a charter incorporating said supreme circle under the laws of the latter state, and it was — Held, that the effect of such incorporation, under the circumstances recited in this opinion, was to change radically the entire legal character of the relations existing between the supreme and subordinate circles, and to free the latter from their allegiance to the supreme body; and held, also, that the purpose for which the members of subordinate circle 193 had been originally organized having failed, the relationship between its members, inter sese, partook so far of a partnership character that it became dissolved, and the said fund must be divided so that each member should receive her pro rata share thereof.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison.

      Messrs. Ziegener & Lane, for the appellants in cross-appeal and appellees in main appeal.

      Messrs. Peter & John Bentley, for the appellants in main appeal and appellees in cross-appeal.
   The opinion of the court was delivered by

Veedenbtjbgh, J.

This controversy concerns the distribution, under equitable principles, of certain moneys ($1,966) now in court, which are the accumulations of various entrance fees, subscriptions of members, fines, donations and the like, paid into a common fund by the members of voluntary beneficial ássociations of this state, who are parties to the suit.

The bill is filed by the complainants (circle 5) in the names of seventy-eight ladies, all of the county of Hudson, New Jersey, individually and collectively, associated as members of “Palisade Circle Ho. 5, Lady Forresters of America,” against forty-two other ladies, defendants, named in the bill, and associated as members of “Palisade Circle Ho. 193, Companions of the Forest of America.”

To avoid detail, and for the sake of clearness, the additions to the names of these branch associations will be omitted. It will be sufficient to designate the complainants as circle 5, and the defendants as circle 193.

The hill charges, among other matters, that all of the said one hundred and twenty named persons were, on October 16th, 1909, members of said circle 193, and that on that day at a meeting of the members of that association, regularly notified and convened, there occurred an important disagreement among them resulting in a change of the name of said circle 193 to said circle 5, and the formation and organization of the said circle 5, the complainants in the suit; that on that occasion a resolution was formally passed, to the effect that, as the members of said circle 193 could not “"procure justice, nor equal rights from their parent body,” called “The Supreme Circle,” the said circle 193 should not thereafter be affiliated with or be a subordinate circle of said supreme circle.

It is the rival claims of these two, thus divided, subordinate groups, or circles of members, each one claiming to be the rightful circle (193), 'and entitled to the entire fund of $1,966, which lie at the foundation of the present litigation.

The bill proceeds to charge that circle 193, on October 16th, 1909, had on deposit in the Hudson Trust Company the said fund, and that it was the sole property of circle 193, and belonged to the individual members thereof, and that upon the changing of the name of circle 193 to circle 5, the said deposited money became the property of the complainants (circle 5). It further charges that circle 193 was never incorporated under any laws of the State of New Jersey, and had no authority to operate or transact business in' this state; that it was only a voluntary .organization, organized by the members thereof for their mutual protection, and which could at any time change its name, or be dissolved by a vote of a majority of the members thereof, and that upon a dissolution the funds and property thereof became the property of the individual members, share and share alike; that this money upon a change of the name of the old organization into a new organization became the property of the new organization and of the individual members thereof.

The prayer of the bill, so far as now material, was, that the said forty-two defendant members of circle 193 might answer and an accounting be had between complainants and defendants; that a receiver might be appointed to take charge of said moneys and the defendants enjoined from drawing out or disposing of any of said moneys, and that a decree be made directing the receiver to pay over to complainants said funds, or their proportionate share thereof, or their aggregate share, and for such further relief as might seem meet.

By the decree under review' it wras found, as follows, viz.: “That the complainants and defendants, on October 16th, 1909, were members of a beneficial organization known as ‘Palisade Circle No. 193, C. O. E. of A.;’ that the action taken by. them on October 16th, 1909, amounted to a practical dissolution of said Palisade circle, and that each member thereupon became entitled to her fro raía share of the funds on hand to the credit of said Palisade circle;” * * * “that the receivers appointed in this cause shall file their report, setting forth the balance in. their hands after the payment of counsel fees, costs and expenses, and that such balance shall be distributed by said receivers .among the members of said Palisade Circle No. 193, C. O. E. of A.' (on October 16th, 1909), under the further order of this court herein.”

The defendants have appealed from this decree on the stated ground that “ouly such persons as were members of said circle (193) and rertiained loyal thereto, should share in the distribution;” and that said decree should have dismissed the hill of complaint; defendants also appeal from a further order of the chancellor (subsequently made) directing a counsel fee of $100, and other taxed costs to be paid to the solicitors of complainants.

The complainants have filed a cross-appeal on the stated ground that the}1-, individually or collectively, as circle 5, were entitled to receive the entire fund in the hands of the said receivers after the payment of counsel fees and costs.

With the reasons given for .this decree in the opinion below (which was oral), and with the result reached by it, we are.in substantial accord.

It appeared by the evidence taken at the hearing, both documentary and oral (consisting of some four hundred and fifty pages of print), that the general scheme of these circles, or groups of members, consisted of a parent organization called a supreme circle, and various branch and subordinate circles ■which were affiliated with it, although none of them had been chartered or incorporated either in this state or elsewhere, except as hereafter mentioned. They had written constitutions and bylaws under which they claimed to have been governed. The supreme circle seems to have been instituted in June, 1883, but was never incorporated under the laws of any state until in November, 1907, when certain members (six in number), all residents of the city and State of New York, assuming to act in behalf of said supreme circle and its subordinates procured a charter under the laws of the State of New York by the corporate name of “Companions of the Forest of America.”

The evidence shows that on October 16th, 1909, the said one hundred and twenty members of circle 193 held the meeting and • passed the resolution of severance from the supreme circle, as above charged in the bill, and that, subsequently, another meeting was held, which apparently was attended by a minority of the members of circle 193, and at this meeting the said seceding resolution of October 16th, 1909, was reconsidered and voted down. This resulted in a schism in the organization of circle 193, some of the members associating themselves with said supreme circle and adopting a new name (circle 5), and others remaining loyal to said circle 193, each of said circles (193 and 5) claim to be the legitimate subordinate circle 193, and. to be entitled to its property.

It nowhere is shown in the proofs that the members of circle 193 either assented to or recognized in any way the said New York incorporation of the supreme circle.

It is stated in the written constitution of circle 193 that

“it shall have for its object the raising of a fund or funds by entrance fees, subscriptions of members, fines, donations and by interest on the invested capital for the following purposes, viz.: Insuring sums of money toward defraying the expenses of the burial of deceased members, for rendering assistance to members when sick and unable to follow their employment and supplying them with medical attendance and medicine, in the manner hereinafter provided.”

The New Jersey members of this fraternal society had elected, we must presume, to remain a purely voluntary association and not become incorporated. If they had desired to be bound by corporate ties they could have easily availed themselves of our act entitled “An act to incorporate associations not for pecuniary profit.” Comp. Stai. p. WB.

The attempt of the New York members of the supreme circle to bring them within the dominion of a New York incorporation was, as has been shown, resisted and denied by them:

The learned vice-chancellor was of the opinion that the subordinate lodges were free to throw off their allegiance to the supreme circle; that the said action of these members at their two meetings, taken in their entirety, amounted under the circumstances to a practical dissolution of said circle 193, and that its property should be divided among its members so that each member should receive her pro rata share thereof.

We think the unauthorized incorporation of the parent supreme circle in New York changed materially the pre-existing legal relations between that body and its affiliated subordinate circles. Erom an association whose obligation to and control over its members was entirely voluntary, the supreme circle, by its formal incorporation in New York state, became thereafter clothed with compulsory powers over its members. Although the personnel of the members of these subordinate bodies, or groups, might remain the same thereafter, the relations of the supreme body to its subordinates suffered radical change. It thereby became an entirely different legal entity.

To enumerate here the various effects in law produced by this change of said parent organization from a voluntary association to an incorporation, is unnecessary. The purpose for which the members of the subordinate circle had been originally organized, having failed, the relationship between its members, inter 'sese, partook so far of the nature of a partnership, that it became ipso facto, dissolved, and their property liable to the equitable distribution awarded by the decree below. The decree is affirmed.

For affirmance — The Ci-iiee-Justice, Garrison, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisoi-i, Bogert, Vredenburgh, Congdon — 11.

For reversal — None.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The Vulcan Detinning Company v. The American Can Company.
    [Argued March 14th, 1912.
    Decided May 26th, 1913.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell.

      Mr. Robert 'H. McCarter and Mr. Henry Woilman (of the New York bar), for the detinning company.

      Mr. Richard V. Lindabury and Mr. Julius F. Worlcum (of the New York bar), for the can company.
   Per Curiam.

In the opinion promulgated in this case at the last November term of this court (80 N. J. Eq. (10 Buck.) Jfl/S) it was held that in the accounting between the parties the defendant was entitled to be credited not only with the various items set forth in the report of the master, but also with certain other items which we specified.

Our attention is now called to the fact that the opinion is silent with respect to the question whether the defendant is entitled to be allowed interest on these various items, including those credited to it by the master; and (counsel being in doubt about the matter) we are asked to declare whether or not it was our intention that such interest should be allowed.

It was stated in the opinion that the sole purpose of the accounting was the ascertainment of the actual net profit made by the defendant company in the conduct of the business of detinning tin scrap during the period of the accounting; and that, in an accounting had for that purpose, the defendant, was entitled to be credited with the expenditures made by it in the carrying on of the business, and for the benefit of the business.

Upon the theory on which this account is had the defendant, having made these expenditures out of its own funds, is entitled to be allowed interest thereon from the time when each' of them respectively was made; for, in ascertaining the actual profits of a business venture, the interest on a fund invested in or spent in carrying on such venture is as much a part of the outlay of the persons engaged in it as is the expenditure of the principal itself.

In addition to the alterations to be made in the master’s account, and heretofore specified by us in our opinion, the remittitur in the cause will provide that in the restating of the account the defendant shall be credited with interest on each of the expenditures made by it and for which allowance is made to it by the master, and also upon those items which were excluded by the master on the accounting, but for which, as we' have already held, the defendant is entitled to an allowance, and which we have heretofore specifically indicated.


text:
    Fred M. Henry, appellant, v. Lena K. Henry, respondent.
    [Submitted November 9th, 1912.
    Decided April 24th, 1913.]
    On appeal from an order of the court of chancery advised by Vice-rChancellor Howell, whose opinion is reported in 79 N. J. Eq. (9' Buch.) 498.

      Mr. Frank E. Bradner, for the appellant.

      Mr. Paul G. Poder, for the respondent.
   Per Curiam.

The order appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Howell.

For affirmance — The Chancellor, Ci-iiee-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Bogert, Vredenburgh, Congdon — 12.

For reversal — None'.


author: Per Cttriam.

text:
    William M. Sheehan v. Frank L. Humphreys.
    [Argued March 4th, 1913.
    Decided June 18th, 1913.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported ante p. 416.

      Mr. Charlton A. Reed, Mr. Elmer King and Mr. Gilbert Collins, for the appellant.

      Mr. Willard W. Cutler, Mr. Kinsley Twining and Mr. Richard V. Lindabury, for the respondent.
   Per Cttriam.

The bill in this case was filed to compel the specific performance of an alleged contract entered into between the parties, by the terms of which Humphreys agreed to sell to Sheehan eighty shares of the stock of the Morris and Somerset Electric Company, at the price of $85 per share. The learned vice-chancellor to whom the cause was referred for hearing and decision held that the complainant had failed to prove a contract between the parties so fixed and definite in all its parts as to justify the interference of a court of equity to enforce its performance; and for this reason advised a dismissal of the complainant’s bill! In his opinion in the cause he points out the various uncertainties which exist in the agreement, as proved by the complainant. Among them, as he considered, was a want of certainty as to the number of shares bargained for. We are inclined to think that the contract was sufficiently definite in this respect; but in view of the other uncertainties found in the contract, and pointed out in the opinion, this fact becomes immaterial. We concur in the conelusion of the vice-chancellor, and are satisfied to adopt his opinion as that of this court, with the exception indicated.

The decree under review will be affirmed.

For affirmance — The Chief-Justice, .Garrison, Swayze, Trenchard, Parker, Voorhees, Minturn, Kalisoh, Bogert, Vredenburgi-i, Congdon, White — 12.

For reversal — None.


text:
    Atlantic Suburban Gas and Fuel Company, respondent, v. Harry H. Johnson, appellant.
    [Submitted March 6th, 1913.
    Decided May 9th, 1913.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported ante p. S51.

      Messrs. Thompson & Smalhers, for the respondent.

      Messrs. Bolle & Sooy, for the appellant.
   Per Curiam.

The order appealed from will be affirmed, for tlie reasons stated in the opinion filed in the court below by Vice-Chancellor Learning.

For affirmance — The Ctttef-Justice, Garrison, Swayze, Trenchard, Parker, ■ Bergen, Minturn, Kalisoh, Bogert, Vredenburgi-i, Congdon, White, Heppeni-ieimer, Tekiiune —14.

For reversal — None


text:
    The Oscar Barnett Foundry Company, respondent, v. The Ironworks Company and Battelle & Renwick, appellants.
    [Argued March 11th, 1913.
    Decided May 9th, 1913.]
    On appeal from a decree of the court of chancery advised by Yice-Chancellor Howell, whose opinion is reported ante p. 412.

      Messrs. Lum, Tamblyn & Golyer, for the respondent.

      Mr. Ghccrles Young, for the appellants.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Yice-Chancellor Howell.

For affirmance — The Chiee-Justice, Garrison, Swayíze, Trenchard, Parker, Bergen, Minturn, Kalisch, Bogert, Yredenburgh, Congdon, White, Heppeni-ieimer, Teri-iune —14.

For reversal — Hone.


text:
    The Oscar Barnett Foundry Company, respondent, v. The Ironworks Company and Paul C. Crowe, appellants.
    [Argued March 11th, 1913.
    Decided May 9th, 1913.]
    On appeal from a decree of the court of chancery advised by-Vice-Chancellor Howell, whose opinion is reported ante p. \1%.

      Messrs. Lum, Tamblyn & Qolyer, for the respondent.

      Mr. Charles Young, for the appellants.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Howell.

For affirmance — The Citiee-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Bogert, Vredenburgi-i, Congdon, White, Heppenhetmer, Terhune —14.

For reversal — None.


text:
    Nelson Z. Graves, respondent, v. Edwin Fancher et al., appellants.
    [Submitted March 24th, 1913.
    Decided June 18th, 1913.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported ante p. Ifil.

      Mr. Addison II. Ilazeliine and Messrs. Pitney, Hardin & Skinner, for the respondent.

      Mr. Henry Huston, for the appellants.
   Per Curiam.

We agree with the vice-chancellor’s construction of the deed from Rutherford to Thomas Iron Company of April 22d, 1871. This makes it’ unnecessary to consider whether the complainant has shown an unbroken paper title. Hpon a bill to quiet title, when the jurisdictional facts are shown, as we think they are in this case, it is for the defendant to establish his claim (Ocean View Land Co. v. Loudenslager, 78 N. J. Eq. (8 Buch.) 571), and this has not been done.

The decree must be affirmed, with costs.

For affirmance — -The Chiee-Justice, Garrison, Swayzb, Trenohard, Parker, Voorhees, Minturn, Kalisoh, Bogert, Vredenburgh, Congdon, White, Hepeenheimer, Terhune —14.

For reversal — Hone.


text:
    Clarence W. Kline, Charles Lufburrow et al., defendants-appellants, v. Knickerbocker Trust Company, trustee, and Robert K. Walton et al., respondents.
    [Submitted March 24th, 1913.
    Decided May 9th, 1913.]
    On appeal from a decree of tlie court of chancery advised hy Yice-Chancellor Howell, whose opinion is reported sub nom. Knickerbocker Trust Co., Trustee, v. Carteret; Steel Co., ante p. ISO.

      Mr. Frederick W. Hope, Mr. William J. Leonard, Mr. Charles R. Snyder and Mr. Edmund Wilson, for the appellants.

      Mr. John B. Humphreys, for the Knickerbocker Trust Company, trustee, appellee.

      Mr. John W. Harding, for the estate of John P. Jones and Robert K. Walton.

      Mr. Robert K. Walton, pro se.

   Per Curiam.

We should be quite satisfied to affirm the order appealed from for the reasons expressed in the memorandum of Yice-Chancellor Howell in the court below, except for the presence in the briefs of counsel for the appellants of a wholly unjustifiable attack upon the truthfulness and standing of several members of the bar of this state, one of whom was the master who made the sale; and others of whom were counsel for the complainant below. We concur entirely in the confidence placed by Yice-Chancellor Howell in the master; and his standing and that of counsel for the appellees are ancl have always been such as to commend them to the entire confidence of the court and to require us in justice to them to express our unqualified disapproval of what we regard as an entirely unprovoked and unmerited personal attack.

The order appealed from will be affirmed.

For affirmance — The Ci-iief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Bogert, Vredenburgh, Congdon, White, Heppenheimer, Teri-iune —14.

For reversal — Hone.


text:
    The Rubber and Celluloid Harness Trimming Company, appellee, v. The Rubber-Bound Brush Company et al., appellants.
    [Submitted March 24th, 1913.
    Decided May 9th, 1913.]
    On apneal from a decree of the court of chancery advised bjr Vice-Chancellor Howell, whose opinion is reported ante p. kl9.

      Messrs. Pitney, Hardin & Skinner, for the appellee.

      Messrs. King & Vogt, for the appellants.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court of chancery by Vice-Chan-' cellor Howell.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Bogert, Vredenburgi-i, White, Heppenheimer, Terhune — 13.

For reversal — None.


text:
    Richard O’Gorman et al., executors, respondents, v. Mary Crowley et al., appellants.
    [Decided March 14th, 1913.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 80 N. J. Fq. (10 Buch.) 101.

      Mr. Frank 11. Sommer and Mr. John P. Hill (of the Maryland bar), for the appellants.

      Messrs. Howe & DmisJ -for the respondents.
   Per Curiam.

David Ledwith, a resident of the county of Essex, died in 1901, leaving a will, one of the provisions of which ivas as follows:

“I give and bequeath to my executors hereinafter named the sum of twenty-five thousand dollars, in trust, to keep the same safely invested and to pay the income therefrom to my son James Herbert Ledwith during the term of his natural life; but I authorize and empower my executors to terminate said trust and to pay to my ■ said son the said sum of' twenty-five thousand dollars whenever in the opinion of my executors his mental and physical condition is such that he is competent to attend to affairs. If, however, my said son shall die during- the continuance of said trust and prior to the payment to him of said twenty-five thousand dollars I direct that said sum of twenty-five thousand dollars shall be paid to his issue then living, and if there be no issue of my said son then living said sum of twenty-five thousand dollars shall fall back into and become part and parcel of my residuary estate and shall be disposed of as directed in the fourth clause of this my will.”

By the fourth clause of his will the testator gave his residuary estate to his niece, Mary Crowley.

James Herbert Ledwith died without issue in 1910, leaving a will by which he devised Ms property in trust for the benefit of certain persons therein designated.

The executors of David Ledwith, in the exercise of the discretion conferred upon them by his will, retained in their hands during the lifetime of his son, Janies Herbert, the $25,000 disposed of by the paragraph in that instrument which has already been recited. Upon the death of the son the testator’s niece, Mary Crowley, claimed to be entitled to it as the legatee of David Ledwith; the legatees under the will of James Herbert Ledwith also claim to be entitled to the fund. In this condition of affairs the executors and trustees under the David Ledwith will filed their bill in the court of chancery praying the advice of that court as to which of the rival claimants were by the true construction of that will entitled to. receive this fund. It was* held by that court that the fund was payable to Mary Crowley and a decree was entered in conformity with this view. Erom that decree the legatees under the James Herbert Ledwith will have appealed.

We think this decree should be affirmed. The testator, David Ledwith, did uot intend that Ms son should come into the enjoyment of the corpus of this fund until such time as Ms mental and physical condition made it advisable to pay it over to Mm, the test being that he should be competent to attend to affairs. Whether the son’s mental and physical condition should improve to the extent indicated was a matter which required an exercise of judgment on the part of someone. The testator, as he had a right to do, selected the executors named in his will as the persons who should exercise that judgment. Their determination of that question was final if the judgment exercised by them was a sound and honest one. There is nothing in the proofs submitted in this case which justifies the slightest suspicion against the integrity and good faith of the executors. The fact that the judgment of others upon the question of the mental and physical condition of the son differed from that of the executors is quite immaterial, for it was not upon their judgment but upon that of the executors that the testator saw fit to rely. The condition upon which the son was entitled to receive the corpus of the fund having failed the gift over to the residuary legatee became effective, and upon James Herbert’s death she was entitled to have it paid to her.

The decree under review will be affirmed.

For affirmance — The Chibe-Justice, Garrison, Swayze, Trench ard, Bergen, Minturn, Kalisci-i, Bogert, VeedenBURGH, CONGUON — 10.

For reversal — None.


author: Pee Gotham.

text:
    Blanche Chetwood et al., appellants, v. Bradbury C. Chetwood et al., respondents.
    [Decided May 9th, 1913.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported ante ¶. 296.

      Messrs. G or limit & Wayne Parker, for the appellants.

      Mr. Bradbury G. Olietwood, for the respondents.
   Pee Gotham.

The ■ decree under review herein should be affirmed, for the reasons expressed in the opinion in the court of chancery by Vice-Chancellor Stevens.

For affirmance — The Chief-Justice, Gaebisokt, Swayze, Tbenuhaed, Pabkee,: Beegeh, Mintuen, Kaliscí-i, Bogeet, Ybedenbuegh, Congdoh,* White — 12.

For reversal — Hone.


author: Walker, Chancellor.

text:
    Clara N. Greiss v. Charles Noisky et al.
    [Decided May 26th, 1913.]
    1. Where the bill for partition alleged that the owner devised the lands to his wife for life and at her death to his children, allegations in the answer of one of the children, who was also executor, setting- out the items of the will devising the land and directing the executors to pay-debts, would not be stricken, where the will was short and' did not tend to cumber the record to any appreciable degree, since at some stage in the proceedings the executor might seek to have a portion of the proceeds of sale paid to him for the purpose of paying debts; and therefore it could not be said with certainty that the items of the will set forth would not be pertinent.
    2. In a suit for partition of land of which the parties’ mother died seized, allegations of tike answer, setting out the source from which she derived her title, were at most' merely surplusage, and in no manner tended to hamper or delay the complainant in the progress of the suit, and therefore, would not be stricken.
    3. In a suit for partition, in which the bill also sought an accounting by one of the tenants in common of the rents, issues and profits collected by him, allegations, of the answer, after expressing a willingness to account, setting forth a number of items of receipts and disbursements not clearly constituting an account, which largely encumbered the record and served no useful purpose, because a proper account could be regularly taken later in the case, would be stricken.
    4. In a suit to partition land devised to complainants and defendants by their father, a mortgagee and creditors of the father were not necessary parties, as the partition would not affect any legal or equitable rights of the creditors.

      5. In a suit to partition land devised to the parties by their father, brought twenty-two j'ears after the father’s death and six years after a life tenant’s death, allegations of the answer of a defendant, who was also executor, setting up a debt against the father, on which he had paid the interest, would be stricken as an attempt to engraft upon the partition proceedings an examination into, and settlement of, the executor’s account, tending to delay and embarrass the conduct of the suit.
    6. In a suit for partition allegations of the answer as to an agreement between the parties that the premises should not be sold for less than $8,000, that it was expected that a railroad would be built through or near them, and that it was decided not to sell until the improvement was made, -would be stricken as irrelevant.
    7. In a suit for partition the cross-bill of a defendant, alleging certain expenditures under an agreement with the other parties, which he claimed gave him an equitable lien or mortgage on the interests of the other parties, would be dismissed, where he did not ask to have the agreement declared a lien, but merely asked payment from the proceeds of the sale.
    8. In a suit for partition a cross-bill by a defendant, who was the executor of the parties’ testator, setting up funeral expenses and other expenses paid by him as executor, would be dismissed.
    9. Where no relief is prayed for in a bill against a defendant, the bill will be dismissed as against ikirn.
    10. On a motion to strike out the answer and cross-bill, where the moving parties were partially successful, no costs would be allowed to either; but a party whose motion was granted be allowed her costs of the motion.

      On motion to strike out answer.

      Mr. Willis P. Bainbridge, for the complainant.

      Mr. William M. Jamieson, for the defendant Charles Noisky.

      Mr. William J. Baches, for Nellie Martin, guardian of the defendant Anna M. Wiedemann.
   Walker, Chancellor.

The bill in this cause is filed for a partition of lands whereof Francis J. Noisky died seized upon January 6th, 1891, leaving a will devising those firstly described in the bill to his wife, Elizabeth, for life, with remainder in fee to his children; and also for a partition of lands whereof Elizabeth died seized upon August 25th, 1907, intestate. The children of Elizabeth and Francis being the same, and being alive at the time of the filing of the bill, they, with the children of Anna Wiedemann,- a deceased daughter, and also Anna M. Wiedemann, a grandchild of said Anna (a daughter of her deceased son), hold said lands as tenants in common. The defendant Charles Noisky is made a defendant as a devisee and heir. lie, however, with his mother (now deceased) was an executor of the wiE of his father, and filed an answer as well as an answer by way of cross-bill exhibited against the complainant and all the other defendants.

The complainant moves to strike out certain portions of the answer and answer in the nature of a cross-bill; and the guardian of Anna M. Wiedemann moves to strike out the answer by way of cross-bill, under rule 213 of this court.

The motion to strike out parts of the answer will be first considered.

The first objection urged is to that part of the answer which sets forth the various items of the will of said Francis J. Noisky. The bill does not set forth any of the items of the will, but alleges that by the will the testator

“devised tlie lands and premises above described unto his wife, Elizabeth Noisky, to hold and possess and enjoy during her natural life, and at her death to his children share and share alike.”

The answer of Charles sets forth the items of the will, numbering four, which show the directions to the executors to pay debts, as well as the devisee of the lands. The will is short and does not tend to cumber the record to any appreciable degree, and at least as to the item devising the lands might, with perfect propriety, have been set out in the bill. In view of the allegations of the answer it is apparent that at some stage in the proceed-, ings Charles, as executor, may by appropriate proceedings seek to have a portion of the proceeds of sale paid to him for the purpose of paying debts. Taking the whole situation into account, it cannot be said with certainty that during the progress of the case the items of the will set forth in the answer will not be pertinent.

In Dodd v. Wilkinson, 42 N. J. Eq. (15 Stew.) 647, 651, Mr. Justice Van Syckel said:

“The greatest care must be taken that nothing shall be stricken out before the whole ease is before us in the testimony which maj'', in any view of the controversy, become pertinent.”

This case is cited with approval by Vice-Chancellor Van Meet in Leslie v. Leslie, 50 N. J. Eq. (5 Dick.) 155, 157.

The motion to strike out under the first objection is denied.

The second objection is to that portion of the 'answer which, after admitting that Elizabeth died seized of the second and third tracts, set forth in the bill, amplifies the bill by stating the source from which Francis and Elizabeth derived their title, giving the names of the grantors, grantees, date of deed and book and page of record. These additional facts are at most mere surplusage, and in no manner tend to hamper or delay the complainant in the progress of her suit, and might, with propriety, have been set out in the bill.

The motion to strike out under the second objection is denied.

As to the third objection. The bill charges the defendant Charles with receiving the rents, issues and profits of the land since the death of his mother, Elizabeth, and that he is still collecting them, “claiming to be entitled to the exclusive right thereto;” and, after asserting her right to a share of the rents, complainant prays that an account may be taken of the rents, issues and profits of the premises collected, taken and received by diaries Noisky. The defendant in his answer expresses his willingness to account, and denies that he claimed to be exclusively entitled to the rents, issues and profits as alleged in the bill. The foregoing part of the answer was not objected to, and was a sufficient answer to the parts of the bill above recited. Charles, not content with expressing his willingness to account, sets forth a number of items of receipts and disbursements, not clearly constituting an- account, which largely encumber the record and serve no useful purpose because, later in the case, a proper account can be regularly taken.

Further, the third objection touches allegations in the answer as to the personal property left by Francis, and that there is a mortgage on the premises for $1,000 and a note of hand held by Elizabeth S. Lalor, the interest on which since the .death of his mother, Elizabeth, was regularly paid by the defendant Charles, and he says that this note is a just and honest claim and should be paid and satisfied out of the sale of the property. It appears that Francis died twenty-two years ago, and Elizabeth more than six years ago. The mortgagee is not a necessary party to the bill, and neither are creditors. The partition of the estate will not affect any rights of creditors, legal or equitable. Their rights, upon proper proceedings taken, will be protected. And as to setting out the claim on the note, it is an attempt to engraft upon the partition proceedings the examination into, and settlement of, an executor’s account, and tends to delay and embarrass the conduct of the suit. Speer v. Speer, 14 N. J. Eq. (1 McCart.) 240, 250.

The answer also' refers to an agreement between the parties, at a time not stated, that the premises described in the bill should not be sold for less than $8,000, and that it was expected that a railroad would be built through or near the premises, and it was decided not ’to sell until the improvement was made.

The motive fox setting this matter forth in the answer is not apparent. It is a mere naked statement of fact having no necessary relation to the suit; and the answer in no manner even suggests that the matter should be considered. It may be that the pleader made the statement as the executor’s excuse for not exercising the power of sale.

The motion to strike out under the third objection must prevail.

The complainant and the defendant, who is the guardian of Anna M. Wiedemann, by separate motions, ask that the answer in the nature of a cross-bill be stricken- out, urging numerous objections.

The cross-bill sets out an arrangement between the complainant and all the defendants except the children of Anna Wiedemann, deceased, whereby it was agreed that Charles should pay the funeral expenses of their mother and erect a monument over the graves of their parents at a, cost not to exceed $300, and the amount so expended was to constitute a lien on the shares in the lands devised by their father, with interest at five per cent.; that, in pursuance of the agreement, Charles did pay the funeral bill and erect the monument and incurred expenses amounting to substantially $500, for which he claims reimbursement out of the shares mentioned.

The cross-bill urges also that the expenses so incurred were proper charges against the estate of the mother, and claims that the shares of those not signing the agreement should be ratably charged with payment of those expenses, and insists that the payment should be made out of the proceeds of sale after the payment of the mortgage and the Lalor note. Griggs v. Veghte, 47 N. J. Eq. (2 Dick.) 179.

The answer by way of cross-bill does not pray for an answer or relief; in fact, the only prayer is one to be dismissed by the court, with reasonable costs and charges most wrongfully sustained.

The claim of the defendant Charles is twofold.

First. He claims under the contract a lien upon the interests in the lands of the parties thereto for the amount expended, and the right to have the same paid out of the shares of such parties in the proceeds of sale of the lands.

The claim is that Charles has an equitable lien or mortgage on such interests. McKinley v. Coe, 66 N. J. Eq. (21 Dick.) 70, 77.

This is not a sufficient reason for seeking affirmative relief by cross-bill. He does not pray to have the agreement declared to be a lien, but merely asks payment from the proceeds of sale. Speer v. Speer, supra,.

Second. He claims to be entitled to receive the moneys as funeral expenses, or expenses incurred and paid as executor on account of his trust.

This claim clearly cannot be set up by way of cross-bill for the reasons set forth in Speer v. Speer, supra.

Where no relief is prayed for in a bill against a defendant, the bill will be dismissed as against him. Patterson v. Patterson, 1 Hayw. (N. C.) 167.

The cross-bill will be dismissed.

As the defendant Charles was partially successful on the motion of the complainant no costs will be allowed to either, but having totally failed on the motion of the infant defendant Anna, she will be allowed her costs of the motion against him.


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    Sarah Stapler and Mary E. Stapler v. Helen S. Hollister and Charles G. Hollister.
    [Decided June 11th, 1913.]
    1. Where lands sought to be partitioned are susceptible of actual partition, the court under 8 Comp. Stat. 1910 p. 3903 § 16, may not order a sale unless a division will greatly prejudice the interest of the owners, which is a, question of fact to be determined on the facts conceded and established.
    2. The objects of a partition are to avoid the inconvenience resulting from a joint or common possession and to enable the persons entitled to take possession of and improve their respective shares.
    3. That lands sought to be partitioned are subject to taxes and municipal liens, that they are unimproved and yield no income, that the title of the owners is an estate for life limited over to persons who may not bo in esse, which facts make it undesirable for the owners to improve the lands so as to make them yield an income, and that such owners being unable to convey a clear title cannot sell them for a reasonable price, does not justify a sale for partition, especially where the evidence discloses a steady growth in value since the death of the deceased owner.
    4. The fact that the parties to a suit for partition hold an estate for life limited over to persons -who may not be in esse furnishes no valid reason for a sale of the lands susceptible of actual partition, since the purchasers will acquire no better title than the parties have.
    On ex parte hearing on pleadings and proof.

      Mr. William B. Blacicman, for the complainants.
   Walker, Chancellor.

This bill is filed for a partition of the lands whereof John T. Stapler died seized, of which the parties are tenants in common. Title is derived under his inartistically drawn and somewhat peculiar will, which— {first) provides for the payment of his debts; (second) then gives the income of all his estate, real, personal and mixed, to his wife, Sarah, waiving her right of dower, as long as she remains his widow; upon her remarriage or death, one-half of the whole estate to go to his children, and they also to have the income of the other half for life, when it shall go to his grandchildren, if any; if none, then to his nearest blood heirs, as also all his estate, if he should have child or children or grandchildren living at the marriage or death of his wife; upon condition that if his wife is unmarried when the children become of age, they are each to have $10,000, which is to be taken from the one-half of the estate which they shall inherit; none of his property to be sold at private sale for less than cost of same, without its being first fairly offered at public sale; (third) his wife to have charge of the children, and have them roared and educated from the income of his estate, as long as she remains his widow; upon remarriage all her interest in the estate to cease, and also so far as any interest in his children goes that shall also cease, and the same, that is, both interests to be carried to his other executors; (fourth) appoints his wife, Sarah Stapler; his brother, Harry Stapler, and his friend, William H. Skirm, executrix and executors.

The parties to this suit are his widow (who has conveyed her interest in the estate to Mary E. Stapler and Helen S. Hollister, wife of Charles G. Hollister, the daughters of herself and the testator, her late husband, John T. Stapler), and also Mary E. Stapler, Helen S. Hollister and Charles G. Hollister, her husband.

Upon the death or remarriage of the widow, the two named children are each entitled to an estate in fee-simple in the equal undivided half of all the lands and real estate whereof the father died seized. When the children became of age they, if the widow be living and unmarried, were to have $10,000 each, to be taken from the half *so given to them. The two children are also, at the death or remarriage of their mother, to have the income of the other half of the estate for life, after which it shall go to his grandchildren, if any, or if none, then to his nearest blood heirs; as shall all his estate, if he should have no child, children or grandchildren living upon the marriage or death of the widow.

The real estate sought to be partitioned consists of the following four several tracts of land (called three in the bill of complaint), namely—first, a lot situate upon the easterly side of Stuyvesant avenue in the city of Trenton, at the southeasterly corner of Laurel street, fronting one hundred feet on Stuyvesant avenue and extending in an easterly direction eight hundred and ninetj'-seven feet, to the line of land of the Delaware and Bound Brook Bailroad Company; second, lot number nineteen on the plan of lots of the Hamilton Land Association, situate on the north side of South Broad street, fronting twenty-five feet on Broad street, and extending northerly at right angles to Broad street, one hundred and forty-seven feet to a twelve-feet wide alley; third, lot number twenty on the same plan of lots, adjoining lot number nineteen and of the same dimensions and of like description; fourth, lot number sixty-eight on the same plan of lots situate on the south side of Genesee street, fronting twenty-five feet on Genesee street and extending at right angles thereto one hundred and sixteen feet in depth to a twelve-feet wide alley.

These lots- are unimproved, vacant lots, and are unproductive of income.

The master to whom -this matter was referred was, among other things, directed to ascertain and report the nature, circumstances and situation of the property, and whether the lands are so situate that a partition thereof can be made without great prejudice to the owners thereof, and to state the facts upon which his opinion is founded; and also to ascertain and report whether the interests of the owners require, or would be promoted, by a sale of the lands, and the reasons upon which such opinion is founded. He has reported, inter alia, as follows:

“I find and report that the said lánds cannot be partitioned or divided amongst the said owners thereof without great prejudice to their respective interests; and my principal reason therefor is the great uncertainty that beclouds the title at present because of the limitations upon the same by the creation of the said estate in remainder or expectancy as well as by other reasons hereinafter mentioned. I also find and report that the interest of the owners of said land require and will be greatly promoted by a sale thereof, for the following reasons: The said lands are all unimproved and unproductive city lots, yielding no income whatever, but subject to heavy assessments for taxes, and for the erection of sewers and pavement of streets and the like; and from' a consideration of all the facts and circumstances connected with, and surrounding these lands, there is no reasonable probability that they will improve in value, in their present state at all, in comparison with the interests which would accrue to the owners thereof in case of a sale, so that they could have a free and unencumbered title.” "

The evidence taken before the master, and upon which he bases his report, shows the unimproved, unencumbered and unproductive condition of the several tracts; that yearly taxes are assessed upon them, and that sewer assessments and assessments-for street paving as to the two South Broad street lots, have been levied, and that the parties cannot make a good and marketable title to the lands. As to the Stuyvesant avenue tract, Mrs. Stapler testifies that her husband died in 1891; that in the first year after his death the taxes upon the tract were $48, and that in 1910 they had increased to about $187. As to the other three properties she testifies that the taxes have also increased (she does not say how much), but not to such an extent as those on the Stuyvesant avenue tract; that the Stuyvesant avenue tract is favorably located and has been recently nearly surrounded with new buildings. She adds: “I think that by selling the properties now there could be a good profit made for the heirs.” She expresses a preference for a sale rather than a partition, and says: “The reason that I don’t want partition is because, we would be no better oft than we are now, since under the will we could convey ño property.”

The only further testimony is that of real estate dealers, who testified substantially and in practically the same terms, that the interests of the owners require and will be promoted by a sale of the properties. The reasons they give for this opinion are—first, that the lands are unimproved and there is no profit arising from them; second, there are yearly charges in the way of taxes, and may be in the way of sewer, street and other improvements ; third, the impossibility of the present owners making a good title to the lands in case of a division among them; fourth, there would be no inducement for them to build, or make any improvements, since by the chance of death, without heirs to take under the will, all investments in these properties would be forfeited; fifth, the character and style of houses in the neighborhood has been fixed by the erection of inexpensive dwellings, and that the lands are not likely to appreciate in value in a ratio to the interest, taxes and other expenses incident to holding them; sixth, in case of a division, and the separate owners desired to sell, no one would buy for airy reasonable price because the owner could convey no good title.

I cannot agree with the master, whose opinion I do not think is justified by the proofs. I am of opinion that these lands are partible, and that no condition or circmnstance that would make a division inequitable is shown to exist.

The law governing the case is fixed by the statute, and repeated adjudications.

The act concerning partition (Comp. Stat, p.3903 § 16) provides, that if it shall appear by satisfactory proof that the land or real estate cannot be partitioned among the owners, without great prejudice to their interests, it may be ordered to be sold.

It is obvious that these lands are susceptible of actual partition. Whether such division will greatly prejudice the interests of the owners, is the only question for adjudication. This is purely a question of fact, and must be determined upon the facts conceded and established by the evidence.

It has been held that the circumstances which will render a partition injurious must usually relate to the land itself, and that the mere complication of the owners’ interests does not necessarily render partition injurious to the owners, or any of them. Freem. Co-len. & P. § 537, citing Vesper v. Farnsworth, 40 Wis. 361, in which the court observed:

“So far as we can perceive, the order rests entirely upon the fact that there is an outstanding life estate in a portion of the premises. But for that circumstance, it seems, so far as it yet appears, that an actual partition of the land is entirety practicable. If partition could be made in that case without great injury to the owners, it is not very apparent how a change in the relative interests and rights of the owners can render an actual partition so disastrous to them. To illustrate: A, B and C own a farm in common, and actual partition can be made between tliem without injury to either. But A, in addition to his one-third interest in the farm, acquires a life estate in one-half of the interests of B and C. How can that circumstance alone render an actual partition of the farm injurious to the owners or either of them? The same difficulty in making partition in the latter ease would arise in making division of the proceeds, should the farm be sold. It seems to us that the circumstances which will render a partition injurious must usually relate in some way to the land itself, its location, condition, quantity and the like, and that mere complication of the owners’ interests, having no relation to these, does not necessarily render partition injurious to the owners or any of them.”

In Smith v. Trustees, &c., 36 App. Div. 387, 388, the court refused an application for an order for sale, and said:

“We see no difficulty in an actual partition of the property. It can be divided in any direction into two equal parts, or if the values of different sections of the bay are unequal, it can be divided into more than, two parts, so that an equitable partition is comparatively easy. In Chittenden v. Gates, 18 App. Div. 169, we affirmed a judgment directing- an actual partition of a long, narrow beach or tongue of sand, lying between the ocean and Jamaica ba)r, on the ground that it was difficult to see how any property was more susceptible of division than property of this character. The reasoning of that opinion applies with equal force to the premises in question.”

In Clason v. Clason, 6 Paige 547, Chancellor Walworth says:

“The true question to be decided by the master, under the statute, is whether the whole property, taken together, will be greatly injured or diminished in value if separated into three parts, in the hands of three different persons, according to their several rights or interests in the whole; in other words, whether the aggregate value of the several parts, when held by different individuals in severalty, would be materially less than the whole value of the property if owned by one person.”

The objects of a partition are to avoid the inconvenience that results from a joint or common and united possession, and to enable the persons entitled to know, take possession of, and improve their respective shares. Stevens v. Enders, 13 N. J. Law (1 Gr.) 271, 275.

The only facts established by the testimony taken before the master are—first, that the lands are subject to the payment of taxes and other municipal liens, as are all lands; that they are unimproved and yield no income to the owners; that the title of the owners is an estate for life limited over. That latter fact, it is alleged, makes it undesirable and unattractive for the owners to improve the lands so as to make them yield an income, as such investment would be lost to them upon the termination of their life estates, and that, being unable to convey a clear title, the lands could not be sold for a reasonable price. It is said that the lands are not likely to appreciate in value, but the evidence discloses- a steady growth in value since the death of Mr. Stapler.

There appears nothing relating to the land itself, its location, condition or quantity, of a character that would cause a partition to prejudically affect the interests of the owners. The complication arising from the estates created by the will is given prominence as a reason for a sale of the lands. All three of the witnesses seem to have based their opinions upon the assumption that by a sale of the land a purchaser would acquire a title thereto in fee-simple discharged of the limitations created by the testator.

Campbell v. Cole, 71 N. J. Eq. (1 Buch.) 327, is cited as authority for a sale in lieu of an actual partition in this case. In Campbell v. Cole it is said that sale may be made notwithstanding a share held by a tenant in common is less than a fee, whenever it shall appear that the land is 'so situated that partition cannot be made without prejudice to the persons interested, and Chancellor Magie held that the court had power to order a sale, the master having reported, upon evidence that was clearly competent and conclusive, that the lands were incapable of being actually partitioned. That case, therefore, does not apply. .

I cannot see that the status of the parties to this suit will be appreciably changed by either a division or sale of these lands. If they are partitioned they will retain the same title to their respective shares as they now have in the undivided whole; and the purchaser or purchasers thereof, if sold, would acquire no better title. Partition produces no effect upon or alteration in the estate of the respective parties, although it severs the possession; and each party thereafter instead of being seized of an undivided interest becomes seized in entirety of his share, and the occupation and estate which before were in common become several and distinct. Den v. Howell, 20 N. J. Law (Spenc.) 411, 416.

The fact that the parties hold an estate in these lands for life, limited over to persons who may not now be in esse (although by the statute this court, under proper conditions, can order their partition or sale), furnishes no valid or effective reason for sale in this proceeding.

Mr conclusion is that the land is partible and that no great prejudice to the interests of the owners will result from a partition. 1 will appoint commissioners to make an actual partition if application shall he made therefor.


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    Edmund H. Clark v. New Jersey Postal Telegraph Company.
    [Decided June 17th, 1913.]
    1. Specific performance will not be decreed in a case in which the decree cannot be enforced for want of ability of defendant to carry it out.
    2. A contract binding a telegraph company for a valid consideration to issue to an individual a personal telegraph frank over all the lines of the company, though valid when made, is within Interstate Commerce act, February 4th, 18S7 (24 Stat. p. 379 oh. 104; V. S. Comp. Stat. 1901 p. 3154), as amended by act June 29th, 1906 (34 Stat. p. 584 oh. 3591; XJ. S. Comp. Stat. Supp. 1911 p. 1284), prohibiting the issuance by carriers of passes, and including telegraph companies in the category, and the contract will not be specifically enforced.
    3. A telegraph company is a common carrier of news and information, and is subject to legislation as such.
    Ou final hearing on pleadings and proofs.

      Messrs. Pcui’leer & Van Gelder, for the complainant.

      Messrs. Vredenburgh, Wall & Octrey, for the defendant.
   Walker, Chancellor.

The bill in this case prayed for the specific performance of a contract made between the complainant and the New Jersey Postal Telegraph Company to the end that that company and the Postal Telegraph-Cable Company of New Jersey or either of them might be decreed to issue to him a personal telegraph frank over all the lines of both companies.

On March 31st, 1891, the complainant owned and possessed certain telegraph poles, cross-arms and wires strung thereon in Long Branch, which he sold to the defendant, the New Jersey Postal Telegraph Company, by an agreement in writing of that date. Part of the consideration passing from the company to him was that he should have a personal telegraph frank over the lines of the New Jersey Postal Telegraph and the Postal Telegraph-Cable companies for messages to and from himself during the continuance of the'agreement. No time limit was'expressed in the agreement. It provided that Clark should deliver his line to the company for $1,700 in cash and the franking privilege mentioned, and that if the company should lease, sell, demise, make over, or in any way permit the Postal Telegraph-Cable Company to operate or control its property, the terms of the contract should continue in force in precisely the same manner with the Postal Telegraph-Cable Company, and the latter then should enjoy .all the rights and privileges of the former company.

The New Jersey Postal Telegraph Company paid the complainant $1,700 in cash and he delivered to it all the line mentioned, and the New Jersey Postal Telegraph Company issued or caused to be issued to him by the Postal Telegraph-Cable Company of New Jersey a personal telegraph frank for messages, and he received the services provided for in the agreement until on or about February 28th, 1907, when his last frank expired, and since that time the Postal Telegraph-Cable Company of New Jersey, which had been issuing the franks, refused to issue any more of them.

The New Jersey Postal Telegraph Company, subsequently to the making of the agreement, sold and conveyed to the Postal Telegraph-Cable Company of New Jersey the line which it had acquired from complainant, and after taking over the same it, the Postal Telegraph-Cable Company of New Jersejq issued to complainant, as already stated, divers franks called for by the terms of the agreement mentioned, from the date of the agreement (March 31st, 1891) up to February 28th, 1907.

The bill of complaint was amended by striking out the Postal Telegraph-Cable Company of New Jersey as a defendant, and the relief now prayed for is against the New Jersey Postal Telegraph Company only.

As the Postal Telegraph-Cable Company of New Jersey is the corporation now owning the line and from whom the frank must emanate, if it comes, a command that the New Jersey Postal Telegraph Company, with whom the contract was made, but who no longer owns the line, should issue the frank, would be-nugatory. And, as I understand it, specific performance will not be decreed in a case in which the decree cannot be enforced! for want of ability on the part of the defendant to carry it out. See Pub. Serv. Corp. v. Hackensack Meadows Co., 72 N. J. Eq. (2 Buch.) 285, and cases cited.

That is not all. There is another and an insuperable difficulty in the way of the complainant. It is the inhibition against, the issuing of franks by telegraph companies.

Congress, on June 29th, 1906, amended the interstate commerce act by directing that no common carrier should directly or indirectly issue or cause to be issued any interstate free ticket,, pass or transportation, except to certain specified persons, and it was held that the constitutional liberty of a citizen to make-contracts was not infringed by this amendatory act, which rendered unenforceable a prior contract, valid when made, by which an interstate carrier agreed to issue annual passes for life in consideration of the release of a certain claim. Louisville and Nashville Railroad Co. v. Mottley, 219 U. S. 467; 55 L. Ed. 297.

By section 1 of the amendatory act (U. S. Comp. Stat. Supp. 1911, p. 1284), telegraph companies are included in the category of common carriers. That they are common carriers of news and information, and subject to legislation as such, I have no-doubt. (See 37 Cyc. 1811.)

Furthermore, by section 2 of the amendatory act (p. 1286) it is provided that no common carrier subject to the provisions of the act, after January 1st, 1907, shall issue or give any interstate free ticket, free pass, or free transportation, provided that the privilege of passes or franks shall not be prohibited to officers and certain others connected with telegraph, telephone and cable lines. The complainant does not fall within the excepted class.

The bill must be dismissed.


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    Lydia S. Shreve, administratrix, &c., of Phebe Virginia Wilkins, v. Adele Groyss Wilkins et al.
    [Decided June 27th, 1913.]
    1. Where an administratrix with tike will annexed has no trust to perform in,relation to real property, and is not concerned in the devolution thereof, she may not have a construction of the will as to devolution of testator’s real estate.
    2. Testatrix bequeathed the residue of her éstate to her son, and provided that, in case he died without any heir or heirs, the property should then be divided among certain others.—Held, that the clause could not be construed as vesting a fee-simple absolute in the son on his surviving the testatrix, on the theory that the words “die without heir or heirs” referred to a contingency of the son dying without heirs before testatrix, but that the provision vested in the son a fee subject to be divested on the happening of the contingency of his death without issue.
    Heard on amended bill, answer and answer by way of cross-bill.

      Mr. Samuel A. Atkinson, for the complainant.

      Messrs. Gondict, Condict & Boardman, for Hattie R. Shreve and Mary S. Shreve, defendants.

      Mr. Ellis L. Pierson, for Adele G-royss Wilkins, defendant.
   Walker, Chancellor.

The bill in this cause, as amended, is filed by the complainant, as administratrix with the will annexed of Phebe Virginia Wilkins, for the construction of her will. In and by the will, the testatrix, after directing the payment of her just debts and funeral expenses, and bequeathing certain wearing apparel, disposed of her property, real and personal, by the following clauses:

“All the rest, residue and remainder of my estate, real, personal and mixed, of which I shall die seized and possessed or to which I shall be entitled at my decease, I give, devise and bequeath to my son George S. Wilkins and appoint the said George S. Wilkins executor of this my will.
“In case my son George S. Wilkins should die without any heir or heirs, I leave the old eight day clock which belonged to our grandfather. Job Stockton, of Spring-field, to Stockton Townsend, son of May S. and J. W. Town'send.
“I wish $1,000 given to each of my brother Benjamin’s children— Hattie B. and May S. Shreve. The remainder to be divided between three of my brother Samuel’s children.”

The facts set forth in the bill are substantially admitted by all of the parties, and are as follows: Phebe Virginia Wilkins died on August 31st, 1892, leaving ber son George, who was unmarried. The will was proved by ber son and executor, George S. Wilkins, and letters testamentary thereon were issued to him on September 12th, 1892; that he proceeded with the administration of. the estate. He married the defendant, Adele Groyss Wilkins, and departed this life on the 14th day of August, 1910, without leaving issue, leaving his wife him surviving, and leaving a last will and testament giving all of Ms property, real and personal, to his wife, and making her his executrix. The complainant was appointed administratrix with the will annexed of Phebe Virginia Wilkins, by the surrogate of Burlington county, and qualified, and now has in band mortgages and stocks which passed under her will and came into the custody of George S. Wilkins’s executrix, which were turned over to the present complainant by the attorney of the estate of George, with the understanding that proceedings should be taken to ascertain the rights of the respective parties in the property which passed under the will of Mr. Wilkins.

The bill, after stating that the complainant is in doubt as to her duties in the premises, prays the direction of this court as to distribution, &c.

The defendants, Hattie R. Shreve and May S. Shreve, two of the persons mentioned in said will, filed answers, and also answers by way of cross-bill, in effect alleging that George, by the terms of his mother’s will, took the estate absohitely, subject to be divested on his death without issue.

The defendant, Adele Groyss Wilkins, answered the bill and answer in the nature of a cross-bill, setting forth, among other things, that George left his last will and testament in writing, duly executed, wherein he bequeathed and devised to her all of his property, and also appointed her sole executrix thereof, which will, as shown by the pleadings as amended, was admitted to probate December 4th, 1911, by the surrogate’s court of New York county, and letters testamentary issued thereon to Adele on December 30th, 1911. She claims that by the terms of the will of Phebe Y. Wilkins, the son, George S. Wilkins, her husband, became possessed absolutely of the personal estate of said testatrix, and that that part of the will which devises and bequeaths over, in case George should die without any heir or heirs, was inoperative and void, and that by virtue of the will of her husband, George, the right to the possession of the securities mentioned in the bill became absolute in her.

The bill as amended not only prays directions with respect to the personalty, but also a construction of the will to determine the estate and interests of the parties in the realty.

The complainant is not concerned in the devolution of the real estate; she has no trust to perform in relation thereto; .therefore, she is not in a position to ask this court to determine the several rights of the parties in the real estate arising under the will, and no opinion is expressed on this subject. Hoagland v. Cooper, 65 N. J. Eq. (20 Dick.) 407.

The testatrix by her will gave to her son all the rest, residue and remainder of her estate, real, personal and mixed, of which she might die seized and possessed, or to which she should be entitled at her decease, and, in the same paragraph, appointed him' her executor. Beginning with a new paragraph, she says .- “In case my son George S. Wilkins should die without any heir or heirs” and then she proceeds to give the old eight-day clock to Stockton Townsend, and $1,000 to each of the children of her brother, Benjamin, Hattie E. and May S. Shreve (answering defendants), and the remainder she directs to be divided between three of her brother Samuel’s children, naming them. Counsel for Adele argues that there should be read into the will, after the words “In case my son George S. Wilkins should die” the words “prior to my death,” so that the clause would read as follows: “In case my son George S. Wilkins should die prior to my death without any heir or heirs, I leave,” &c., on the grounds—first, that the final vesting of an estate is favored; second, that as death is certain, a provision “in case of death” must be construed to mean in case of death before a specific time, and, therefore, the courts import the phrase “before testator’s death,” and, third, as George was an only son, and the primary object of his mother’s bounty, and the estate was small, it is inconceivable that shej with the natural love and affection of a mother for her offspring, would prefer her collateral relatives with whom she was not particularly concerned. On the other hand, the counsel of May S. and Hattie E. Shreve contend that the contingency is not as to the death of George, which was certain to occur, but as to his leaving issue at the time of his death, and that he, dying without issue, the absolute estate bequeathed to George in the personalty was divested and became vested in those to whom the bequest over was made after the death of George without heir or heirs.

In Executors of Rowe v. White, 16 N. J. Eq. (1 C. E. Gr.) 411, the will gave as follows:

“I give and devise unto Sarah White, wife of John White, the sum of $5,000. to be paid unto the said Sarah White; and if the said Sarah (White die without heir or heirs, the said sum of $5,000 is to go to Leonard Crum, the son of Henry Crum.”

Chancellor Green said (at p. 415) :

“There can be no question as to the construction and effect of this bequest. Sarah White, the first legatee, takes a present vested interest in the fund liable to be divested upon the contingeney of her dying without issue. The limitation over being upon a definite failure of issue, is good by way of executory bequest.”

The language in the will under consideration is identical with that in Rowe v. White, supra—the contingency is not the death of the legatee, but death “without an heir or heirs.”

In Patterson v. Madden, 54 N. J. Eq. (9 Dick.) 714, the present Chief-Justice Gummere, speaking for the court of errors and appeals, analyzed the case of Pennington v. Van Houten, 8 N. J. Eq. (4 Halst. Ch.) 745, and deduced therefrom two rules as established in the construction of wills containing a limitation over by way of executory devise after the death of the original devisee without issue, which rules are set out on page 723, the first one of which applies here; and Rowe v. White is cited with approval.

In Jones’ Ex’r v. Stites, 19 N. J. Eq. (4 C. E. Gr.) 324, Chancellor Zabriskie said (at p. 326) :

“If the gift is absolute in terms and not at all events limited over at the death of the first taker, but only on a certain contingency, as dying without issue living, then the title vests in the devisee or legatee absolutely, subject to be defeated on the happening of the contingency.”

To the same effect is Dilts v. Clayhaunce, 70 N. J. Eq. (4 Robb.) 10.

While one might naturally assume that it was the intention of the mother to so frame her will as to give the greatest protection and benefit to her son, and only intended that her estate should pass to her collateral kindred if the son died in her lifetime, yet, as her will is couched in language which is unambiguous, according to the decisions of the courts of this state, and there are no circumstances appearing on the face of the will to show that she intended otherwise, then, according to its legal interpretation, it must be declared that, under the bequest to her son, and in case of his death without any heir or heirs, the son George took a vested interest in the fund, subject to be defeated upon the contingency of his death without issue living. These views lead to the conclusion that the administratrix should make distribution in the manner provided in the will upon the occurrence of the death of George without issue.


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    Lydia P. Bullock v. Winfield S. Angleman.
    [Decided July 8th, 1913.]
    1. A court of equity has jurisdiction to compel a trustee to pay funds into court to await final disposition, where the relationship of the parties is that of trustee and cestui que trust, and the exercise of the power is not relaxed because the trustee has misappropriated the fund.
    2. Where an attorney, having collected a mortgage for his client, after receiving his fees, failed to pay over the balance, and attempted to make himself his client’s debtor by executing a note to her therefor with a chattel mortgage, securing the same, he did not thereby escape the obligations, incident to his relation as attorney to pay over the fund, but w.ould be summarily ordered to make payment forthwith, together with the costs of the proceeding and a counsel fee to indemnify his client for the expenses incident thereto.
    Heard on bill, answer and affidavits.

      Mr. George TF. 7. Moy, for the complainant.

      Mr. Winfield 8. Angleman, defendant, pro se.

   Walker, Chancellor.

Upon the filing of the bill of complaint, which prayed for answer on oath, the defendant was ordered to show cause on December 31st, 1912, why pendente lite the trust funds in his hands should not be paid into court. On the return of the older he filed his answer verified both in common form and in extenso, and asked leave to put in addition proof by way of affidavit at an adjourned day. This leave was granted, with the admonition that the hearing would be a summary one, as the controversy was between client and solicitor, in which the client averred that she had been defrauded and oppressed by her solicitor. The defendant acknowledged the court’s power to so proceed and filed an additional affidavit and went to hearing accordingly.

The bill charges and the answer admits, that the complainant placed with the defendant, her solicitor, a member of the New Jersey bar, a mortgage of $4,000 for collection. At the same time the mortgage was under foreclosure in a suit in this court to enforce a prior encumbrance. The defendant was authorized to accept a compromise and did so, receiving in settlement of the complainant’s mortgage debt $3,500, which he failed to pay over to her, although frequently importuned to do so. The bill prays ah accounting and a decree for the money. Hearing was had upon bill, answer and affidavits submitted by both sides, and the cause is now ripe for a final decree terminating the litigation.

The proofs show that the defendant had for years been the confidential adviser of the complainant. As far back as 1899 he had drawn and she executed a testament making him her chief and residuary beneficiary, although they were not of kin. This, it seems, first came to the complainant’s attention at the time she severed her relations with the defendant because of his present misconduct. That the. execution of the will was surreptitiously procured may be inferred, but if it were not, it manifests the implicit confidence which the complainant reposed in her solicitor.

The defendant collected the money now in question in December, 1910, and deposited it to his own credit. Three months afterwards the complainant learned this from an outside source, and at once made demand for its payment. The defendant sought to persuade her that he had retained the money with her consent, and he sets up that she told him to “keep the money and pay her the interest on it.” Failing to impress his client, as he admits in his answer, he offered to “assume full responsibility for the entire value of the mortgage” ($4,000), and promised restitution as soon as he could make arrangements. Repeated demands, and threats of disbarment proceedings, resulted in the defendant, on March 16th, 1^12, giving his promissory note to the complainant, payable in three months, for $3,545, secured by .a chattel mortgage on 'his law library. This sum represented the amount collected, plus the interest to that time, less a $200 collection fee, which had been previously agreed upon. On July 8th following the defendant gave to the complainant a check for $207.47, interest on the net amount of collections from December 1st, 1910, to date, and endeavored to obtain a receipt to be executed by the complainant,, acknowledging him as her debtor, which she refused to sign.

The defendant now claims that because of the acceptance of the note and mortgage his trust relations changed into that of debtor and creditor, ánd submits himself to a money decree in that capacity. 1 cannot regard him in that light. He received the money in trust, and the note and mortgage taken by the complainant, after unsuccessful efforts to compel the defendant to disgorge, are cogent evidence of his defalcation. The proofs are convincing of the defendant’s abuse of his client’s confidence, and that he, with intent, appropriated her money to his use. The defendant’s explanation for withholding the money is too diaphanous for serious consideration; for why should he, when confronted with the evidence of his peculation, offer to return not only the money he had collected, but also the difference to the full amount of the mortgage debt. This, to my mind, evinces a consciousness of guilt and renders his assertion that the fund was loaned to him incredible.

The jurisdiction of a court of equity to compel a trustee to pay trust funds into court to await final disposition, where the relationship of the parties is that of trustee and cestui que trust, is firmly established, and the exercise of this power is not relaxed, even though the trustee misappropriated the fund. All that need appear is that the answer admits the trust estate and the complainant’s title thereto. Whether the trust relation was changed into another may be ascertained from proof in the cause. Dan. Ch. Pl. & Pr. *1770 exploits this subject. See also McTighe and Wadleigh v. Dean, 22 N. J. Eq. (7 C. E. Gr.) 81.

As I find that there was no novation and that the defendant holds the funds in trust, an order would be made that he pay into court the sum of $3,300, the net amount of the trust fund in his hands; but, because it is plainly apparent that the order will not rest alone upon the trustee doctrine, strictly speaking, but upon that of solicitor and client also, the sum mentioned will be ordered paid to the complainant forthwith.

In Lynde v. Lynde, 64 N. J. Eq. (19 Dick.) 736, an order was made directing the respondent, James Westervelt, a solicitor of this court, to pay forthwith into the hands of the clerk in chancery the entire sum collected by him, $38,500 (after making certain specified deductions), and upon pajnnent being made the court would then proceed in a summary way to ascertain what was reasonable compensation for his professional services, &c. 64 N. J. Eq. (19 Dick.) 759. Mr. Justice Pitnejq speaking for the court of errors and appeals, said that the fundamental ground upon which the jurisdiction invoked rests, is jhat attorneys and solicitors are officers of the respective courts and are a part of the machinery of the law created for the administration of justice; that it is upon that ground that when an attorney or solicitor has received moneys which duty required him to pay over to his client, the court, if necessary, exercises its summary, disciplinary and punitive powers to require the attorney or solicitor to do justice to his client; and (at p. 746) that this summary jurisdiction is not confined to matters arising out of litigation, but extends to any case where the employment is so connected with professional character as to afford presumption that that character formed the ground of emplojunent by the client.

In the Lynde Case the order was that the solicitor forthwith pay the fund into court because proceedings were to be had to ascertain ivhat was reasonable compensation for his professional services. Not so in the case sub judice. This defendant has been paid his fee agreed upon for collection, and he has converted to his own use and retained the balance of his client’s money. In this posture of the affair, the matter having been fully tried out between the parties on a summary hearing, a decree will be made on the solicitor to'make pajunent to his client/ forthwith. The complainant is entitled to costs, with a counsel fee of $250 to be included therein. The costs, including counsel fee, to be paid forthwith along with the amount decreed to the complainant.


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    Cornelia E. Clement et al. v. Anne M. E. Creveling et al.
    [Decided July 8th, 1913.]
    iV’here, in a prior suit to construe a will in the same court, it had been determined that testator’s residuary estate was not to be distributed until the death of a certain life tenant, such decision, unappealed from, was conclusive on the same court, and -hence a subsequent bill to terminate a trust and distribute the property prior to the death of such tenant was premature.
    On final hearing on bill, answers- and proofs.

      Mr. Aaron V. Dawes, for the complainants.

      Mr. Alfred Reed, for the defendants Josephine Ellison et al.

      ■Mr. Gilbert Collins, for the defendant Anne M. E. Creveling.

      Mr. Richard StocJcton, for the defendant Mercer Hospital.

      Mr. Peter Baches, for the defendant Gardner H. Cain, executor, et al.

      Mr. Fergus A. Dennis, for the defendant Emma Chambers.
   Walker, Chancellor.

The bill in this case is filed for the construction of the will of the late Albert J. Whittaker. The questions propounded concern the time of the vesting of certain legacies. The testator, in his will, inter alia, provided:

“Second. I give to my wife, Margaret A. Whittaker, the use and possession of my residence during her natural life, all the taxes, insurance and repairs thereof to be paid out of my estate. I give to my said wife all my furniture, pictures, silverware, piano and all other articles of use or ornament in said residence. I further give and bequeath to my said wife, in lieu of dower, for and during the term of her natural life, without any power to sell or transfer the same, six hundred shares of the capital stock of the United New Jersey Railroad and Canal Company now standing in my name, with full power and authority to collect and receive to and for her own use and benefit all dividends and interest declared thereon after my death, and I do hereby order and direct that said stock shall not be sold, transferred or exchanged by my executors, or by any other person or persons whatever, during the life of my said wife, but shall be left and remain standing in my name on the company’s books, and the dividends thereon paid to my wife alone, or her order, and not to my executors. Out of said dividends and interest I request my said wife to pay to her niece, Emma Chambers, for and during the natural life of the said Emma Chambers, six hundred dollars per annum.
“Sixth. After the decease of my said wife and niece, I give my estate to my lawful heirs, to be divided equally among them, share and share alike, the lawful child or children of any of them who may have died to take the share of their deceased parent.”

The will of the testator was dated July 17th, 1883, and he died March 28th, 1884, leaving him surviving three brothers and one sister, namely, Wesley E. Whittaker, John H. Whit-taker, George R. Whittaker and Anne W. Ellison. To each one of them he gave a pecuniary legacy. All are now dead, and the complainants, surviving children of George R. Whittaker, testator’s brother, in their bill pray that it may be adjudged that the trust should be terminated and the estate distributed among the persons now entitled thereto under the will, and that it may be adjudged and decreed which of the parties named in the bill are so entitled, and the amounts to which they are entitled.

Under the issue raised between the parties the primary question is as to when, under the sixth item of the will, testator’s residuary estate, as it is called, vested, whether at his death in 1884, or upon the death of his last surviving brother, which occurred in 1912. The solution of this query would determine to whom, and in what portion, the estate was to go, whether to the heirs of the testator living at the time of his death, and to their heirs and legatees, or to snch persons as answer the description of the testator’s lawful heirs at this time.

Before the question of vesting may he efficaciously decided, it must be determined at what period the estate of the testator is distributable. That question has alreadyffieen decided in this court in Whittaker v. Whittaker, 40 N. J. Eq. (13 Stew.) 33. The bill in that case was filed by Wesley E. Whittaker and George E. Whittaker, two of testator’s brothers, and the questions therein submitted to this court for its determination were those stated by Chancellor E-unyon in his opinion (13 Stew. 35) as follows:

“The questions submitted are the following: Whether the testator, in the gift of his estate to his lawful heirs, &c., after the death of his wife and her niece, intended to postpone until the death of those latter persons, the enjoyment of so much of the property as was not to be held for their benefit, and if so, whether such postponement of enjoyment extends to the income as well as the corpus, or whether it affects the latter only, and whether, seeing that the executors are possessed of a mere power of sale of the real estate, the heirs-at-law of the testator are not now entitled to that property, subject to the use and enjoyment of the residue by the testator’s widow, according to the provisions of the will.”

And he went on and decided the matter submitted by the following observations—13 Stew. (at p. 36) :

“They (certain gifts, &c.) make it quite clear that the testator intended to postpone the distribution of all of his estate, except what he had given away in special legacies or directed to be held for the benefit of his wife and her niece, until the death of both of those persons. It is not to be supposed that he would have given those legacies of specific amounts if he had contemplated that those legatees would receive nearly $100,000 more of personal property on the settlement of his estate soon after his death. Nor did he intend to die intestate of any part of his property. He supposed that by his will he had disposed of all of it. The use of the word ‘estate’ in the residuary clause is very significant. It is as comprehensive a term as he could have employed. He undoubtedly intended that all his property remaining after pajdng the debts and legacies and making provision for his wife and her niece, should be held by the executors and accumulated (of course they were to pay therefrom the taxes, insurance premiums and cost of repairs to his residence), until the'death of both his wife and her niece, and that his residuary estate • should then, but not until then, be divided.”

The defendants to that bill were Margaret A. Whittaker (widow of testator), John H. Whittaker and Anne W. Ellison (brother and sister of testator). The bill prayed, among other things, that it might be decreed and determined whether Wesley E. Whittaker and George R. Whittaker (executors named in the will) were appointed thereby trustees, and if so whether the trust estate was to be by them managed and treated as an accumulative trust, and if an accumulative trust, whether the period or term of its accumulation is the natural life of the survivor of the two legatees, Margaret A. Whittaker and Emma Chambers.

A final decree was made and filed in the cause on June 16th, 1885, wherein it was

“Ordered, adjudged and decreed that the devises and bequests in the will of the said Albert J. Whittaker, deceased, made and contained of the residuary estate of him, the said testator, and the trusts in arrd by the said will declared and created, are valid and effectual in the law, and that the said testator thereby effectually disposed of the said residuary estate by giving the same, after the decease of his wife and niece, to persons designated as his lawful heirs in equal shares, the lawful child or children of any of them who may have died to take the share of their deceased parent. And that the said complainants upon passing their accounts as executors of the said will in the Mercer county orphans court of this state, and upon obtaining the decree of the said court for that purpose, do hold all the rest and residue of the estate of said testator during the lifetime of the said Margaret A. Whittaker and Emma Chambers, and do from time to time invest the same and do collect the income and dividends arising therefrom, and accumulated, and invest and reinvest the same, paying out of said income all the taxes, insurance and repairs to and upon the homestead of said testator; and after the death of Margaret A. Whittaker do hold during the lifetime of said Emma Chambers five hundred and forty shares of the capital stock of the United New Jersey Bail-road and Canal Companies, and collect and invest and reinvest the income thereof accumulatively as above directed, and do hold sixty shares of said stock and collect the dividends declared thereon and pay the same to the said Emma. Chambers during her lifetime; and upon the death of the survivor of said Margaret A. Whittaker and Emma Chambers do pay and distribute in equal shares the accumulated funds in their hands to and among the persons entitled thereto under the will.”

This decree in Whittaker v. Whittaker settles the law of the case on the points adjudicated, and settles in this court the question of the time of the distribution of the residuary estate of Albert J. Whittaker; that it is to take place only upon the death of Emma Chambers, who is still living. It is a precedent binding upon me, and one that I am not at liberty to overrule or disregard.

The record in the case of Whittaker v. Whittaker prevents my making an efficacious decree for distribution at this time, no matter to whom I might decide the estate was distributable, and therefore, upon familiar principles, that question (distribur tion) will not now be decided. I am by precedent constrained not to give any advisory opinion upon a question only mooted. It is no more appropriate for me to decide how the estate is distributable when I cannot distribute it, than it was for Chancellor Eunyon to do so. He very pointedly refrained from expressing any opinion on the question.

It is argued to me that there was no trust for accumulation under the will, and that that bore on the question of present distribution. The answer to that contention is, that Chancellor Eunyon decided that there was such a trust. Trusts, like other rights and duties, arise by implication as well as by express creation. Although there is no trust for accumulation expressed in terms in the will of Albert J. Whittaker, yet it arises by implication in aid of the postponement of distribution provided for by him.

It is suggested that although the trust in this case may not have reached its termination by efflux of time, yet all the -parties who are or may be interested in it, are in esse and sui juris, and consent that this court may terminate it and distribute the fund among those entitled. Male v. Williams, 48 N. J. Eq. (3 Dick.) 33, and Huber v. Donoghue, 49 N. J. Eq. (4 Dick.) 125, are cited as authority for the proposition. Without critically examining those cases and applying the law arising from them to the facts of this case, it is sufficient to say that neither of those decisions was made in the face of a direct adjudication to the contrary upon the same facts in the same court. For me to adjudge that this fund is now distributable would be to overthrow the express decision of Chancellor Runyon to the contrary made in this court twenty-eight years ago.

I do not see why this bill was filed unless for the purpose of putting the case in a posture to be taken to- the court’ of errors and appeals, where the decision in Whittaker v. Whittaker may be overruled.

The present bill is prematurely filed, and must be dismissed