author: Trenchard, J.

text:
    James C. Bioren, appellant, v. Charles F. Nesler et al., respondents.
    [Argued July 7th, 1910.
    Decided November 14th, 1910.]
    1. The formalities prescribed by the supplement of March 12th, 1851, to “An act concerning wills” (Gen. Stat. p. 3160), upon which all valid wills must rest are- — (1) that the will shall be in writing; (2) that it shall be signed by the testator; (3) that the signature of the testator shall either be made or acknowledged by him in the presence of two witnesses who shall be present at the same time; (4) that the writing shall be declared by the testator to be his last will, in the presence of those witnesses, present at the same time as aforesaid, and (5) that the two witnesses shall subscribe their names thereto in the presence of the testator.
    2. It is essential to the validity of a will that everything required to be done by the testator shall precede in point of time the subscription of the witnesses.
    3. Where it appears by the uncontradicted affirmative testimony of the subscribing witnesses to an alleged will that the signature of the testator was neither made nor acknowledged by him in the presence of the subscribing witnesses, the instrument must be denied probate notwithstanding the fact that there was annexed to the writing an attestation clause, “Signed, sealed and delivered in the presence of,” subscribed by such witnesses.
    On appeal from a decree of the prerogative court advised by Vice-Ordinary Walker, whose opinion is reported in 76 N. J. Eq. (6 Buch.) 573.

      Mr. Arthur R. Denman, for the appellant, James C. Bioren.

      Messrs. Riker & Riker, for Mary Lulu Bioren, Edith D. Bioren and Edna N. Bioren, beneficiaries under the alleged will.

      Messrs. Bum, Tamblyn & Golyer, for the respondent Kate Mandeville.

      Messrs. Lajferty & Pilgrim, for the respondent Sarah Kemer.

      Mr. Frank E. Bradner, for the respondent Charles D. Mandeville.

      Messrs. E. A. & IF. T. Day, for the respondent Charles E. Nesler.
   The opinion of the court was delivered by

Trenchard, J.

This is an appeal from a decree of the prerogative court affirming a decree of the Essex county orphans court refusing probate of a certain instrument in writing dated October 31st, 1901, purporting to be the last will and testament of John D. Nesler, deceased.

The orphans court denied probate of the alleged will because, in its opinion, the proofs showed that John D. Nesler did not sign the document nor acknowledge his signature thereto in the presence of the subscribing witnesses. The prerogative court affirmed the decree of the orphans court without passing directly upon that question, but rested its conclusion mainly upon want of proof of publication.

We are of the opinion that the ground taken by the orphans court was right.

The formalities prescribed by the supplement of March 12th, 1851, to “An act concerning wills” (Gen. Stat. p. 3760), upon which all valid wills must rest are — first, that the will shall be in writing; second, that it shall be signed by the testator; third, that the signature of the testator shall either be made or acknowledged by him in the presence of two witnesses who shall be present at the same time; fourth, that the writing shall be declared by the testator to be his last will, in the presence of those witnesses, present at the same time as aforesaid, and fifth, that the two witnesses shall subscribe their names thereto in the presence of the testator. Darnell v. Buzby, 50 N. J. Eq. (5 Dick.) 725; affirmed, 52 N. J. Eq. (7 Dick.) 337.

It is essential to the validity of a will that everything required to be done by the testator shall precede in point of time the subscription of the witnesses. Lacey v. Dobbs, 63 N. J. Eq. (18 Dick.) 325.

The will in question is in writing. It is not contended that it was not signed at some time by the testator. The first contention is that the third essential formality, namely, that the signature of the testator shall either be made or acknowledged by him in the presence of two witnesses who .shall be present at the same time, was not complied with. This brings us to an examination of the proofs.

It appears -’that the writing purporting to be John D. Nesler's will was written by his brother Charles L. Nesler. Annexed to the will is an attestation clause as follows: “Signed, sealed and delivered in the presence of.” Two persons subscribed their names as witnesses at the foot of the clause.

An attestation clause is made for the purpose of preserving in permanent form a record of the facts attending the execution of the will, so that, in case of the failure of the memory of the subscribing witnesses, or other casualty, they may still be proved; and the courts have accordingly held that, on proof of the authenticity of the signatures of the subscribing witnesses, the facts stated in the attestation clause must be accepted as true, until it is shown that they are not. Allaire v. Allaire, 37 N. J. Law (8 Vr.) 312; affirmed, 39 N. J. Law (10 Vr.) 113; Farley v. Farley, 50 N. J. Eq. (5 Dick.) 435; Lacey v. Dobbs, 68 N. J. Eq. (18 Dick.) 325; Beggan’s Case, 68 N. J. Eq. (2 Robb.) 572; Manners v. Manners, 66 Atl. Rep. 583. In Mundy v. Mundy, 15 N. J. Eq. (2 McCart.) 290, Chancellor Green declared the rule to be as follows: “The attestation clause, with the signatures of the witnesses, is prima facie evidence of the facts stated in it. It may be overcome by the witnesses themselves, or by other witnesses, or by facts and circumstances irreconcilable with its verity. If there is no attestation clause the case is different. In the one case there must be affirmative proof of publication and of the other requisites; in the other there must be affirmative proof of the want of those requirements.” In Allaire v. Allaire, 37 N. J. Law (8 Vr.) 312, Chief-Justice Depue, speaking for the supreme court, said that the true principle had been so declared with exactness; and in Allaire v. Allaire, 39 N. J. Law (10 Vr.) 113, and in Lacey v. Dobbs, 63 N. J. Eq. (18 Dick.) 325, this court held that the legal rule was thus properly settled.

It will be observed that the attestation clause in question is imperfect, in that it fails to assert the performance of all the acts required to be done under our statute of wills to make a valid testamentary disposition. But attributing to it the force of prima facie evidence of the fact stated in it, namely,- that it was “signed * * * in the presence of” the subscribing witnesses, still it is not established in the present case that the signature of the testator was made in the presence of the subscribing witnesses because the presumption thus arising is overcome by affirmative evidence disproving the statement.

It appears by the proofs that the subscribing witnesses were Emma A. Schaef and John E. MacKenzie. Miss Schaef has since intermarried with Charles Frederick Nesler. The paper was signed by them in a small office room at the factory of Nesler & Company in Newark. Both subscribing witnesses agree that they were called into the small office by Charles L. Nesler. N either of them was apprised of the purpose in view until after entering the room. Mrs. Nesler testified that as she entered the room John D. Nesler smiled and nodded his head in greeting; that thereafter Charles L. Nesler said: “This is John D.’s will * * * I want you to witness it,” but that the testator said and did nothing. Mr. MacKenzie testified that Charles said: “This is John D/s will; sign it,” but that the testator said and did nothing. Both witnesses swore that John D. Nesler said nothing from the time they entered until they left the room, and nothing else was said by any other person present. Furthermore, both subscribing witnesses testified that John D. Nesler did not sign the will in their presence, and that neither of them saw his signature upon the will when they signed it.

Clearly such uncontradicted affirmative evidence demonstrated that there was no compliance with the requisite formality that the signature of the testator shall either be made or acknowledged by him in the presence of two witnesses who shall be present at the same time. It is to be remarked that Charles L. Nesler did not call the attention of the witnesses to any signature of John D. Nesler on the will, but simply stated that the paper presented to the witnesses for signature was John D.’s will. It will also be noticed that the testimony of Mrs. Nesler that the testator smiled and nodded is of no significance in this connection because she swears positively it was merely in greeting as she entered the room and before the'will had béen mentioned.

Since we have reached the conclusion that the alleged will was properly denied probate for the reason stated, it is unnecessary to consider the question whether there was want'of proof of publication as' determined by the prerogative court.

'The decree of the court below will be affirmed. '

For affirmance — The Chief-Justice, Garrison, Sway-ze, Trbnci-iaed, Parker, Bergen, Yoori-iees, Minturn, Bogert, Yeedenburgh, Yroom, Dill, Congdon — 13.

For reversal — None.


source: Caselaw Access Project

author: Parker, J.

license: Public Domain

text:
    Dennis J. Sullivan et al., complainants and respondents, v. John F. Maroney et al., defendants and appellants.
    [Submitted June 27th, 1910.
    Decided November 14th, 1910.]
    1. Where a contract of insurance is made payable to designated beneficiaries, and prescribes a procedure for divesting their interest, in favor of another beneficiary, such interest can be divested, in the absence of an assignment by the beneficiaries themselves, only by following the procedure so prescribed.
    2. Where a contract of life insurance is payable primarily to designated beneficiaries and on a certain contingency to the estate of the party whose life is insured, an assignment by such party of his right, title and interest in the policy will convey only the contingent interest of his estate.
    3. Landrum v. Knowles, 22 N. J. Eq. (7 C. E. Gr.) 594, distinguished.
    On appeal from a decree advised by Vice-Chancellor Garrison, whose opinion is reported in 76 N. J. Eq. (6 Buch.) 104.

      Mr. Marie A. Sullivan, for the appellants.

      Mr. Merritt Lane, for the respondents.
   The opinion of the court was delivered by

Parker, J.

The contest is over the proceeds of an insurance policy on the life of Margaret Cahill, deceased. By the terms of the policy the company agreed to pay its amount to Denis, Edward, Katie and William, children of said Margaret, share and share alike “(or to such other beneficiary or beneficiaries as may be designated by the insured as hereinafter provided) if living, otherwise to the insured’s executors, administrators or assigns,” upon making proper proof of loss, &c. Ko such other beneficiary was designated as provided by the policy, and so far the status of the named children as original beneficiaries remains unchanged. The complainant Sullivan is their next friend in the litigation, they being infants, and the proceeds of the policy were awarded to him by the court below, overruling the claim of Marie Schaefer (now McCabe) as assignee of the policy, or to state her position more correctly, overruling her claim to be substituted beneficiary by virtue of a writing signed by Margaret Cahill, the insured, and her husband. This writing is set out in full in the opinion of the vice-chancellor, and is manifestly drawn to comply, not with the provisions of the policy for change of beneficiary, but with those relating to assignment, properly so called; and there can be little question, in view of its heading and the directions for attaching it to the policy immediately following, as well as its language, that it was written on a form issued by the company. We agree with the vice-chancellor that this paper must be treated as an assignment, and is not available to effect a-change of beneficiary, and are satisfied to rest our decision in this respect on his opinion. We also agree, and for the reasons and on the authorities given by the vice-chancellor, that as a general rule the interest of a beneficiary is vested and cannot be divested by an assignment of the policy by the assured.

It remains but to consider the effect on this case, if any, of Landrum v. Knowles, 22 N. J. Eq. (7 C. E. Gr.) 594, which was decided in this court. The facts of that case are fully set out in the opinion of Vice-Chancellor Garrison, in the case at bar, and therefore need not be repeated here. The decision went upon the ground that the children were named as beneficiaries in a policy taken out by their mother on her husband’s life, and that all premiums paid bjr their mother inured to their benefit as a gift, and entitled them to the cash value of the policy at the time of the assignment to Ivnowles, but that such assignment indicated plainly her intention that the gift cease at that point. Commenting on this decision the vice-chancellor apparently considered that it would require him to decide this case in favor of appellant Schaeffer — McCabe, the assignee, if the Landrum children were entitled directly under the policy as beneficiaries, and intimates that Chief-Justice Beasley, who delivered the opinion of this court, was in error in so treating them, and that the legal beneficiary was the mother as voluntary trustee for the childreu, whose gift to them would be supported only to the extent, adopting the vice-chancellor’s language, that it was effectuated. We incline to think that it was neither error nor inadvertence that caused the eminent chief-justice to say that the Landrum policy by its terms was payable to the children (22 N. J. Eq. (7 C. E. Gr.) 596); but this view does not lead us to a reversal of the decree now sub judice, for we think this ease may readily be distinguished from Landrum v. Knowles on other grounds.

The provisions of the Cahill policy regarding payment of death claim are clearly drawn, and the various interests accurately distinguished. The company agrees to pay certain children by name, if living (subject to change of beneficiary by prescribed procedure not now in question because no such change was made) ; otherwise (i. e., in case of such children or such substituted beneficiary predeceasing Margaret Cahill) to her executors, administrators or assigns. As the learned vice-chancellor himself points out:

“There were, therefore, always two sets of interests in this policy — the beneficiaries (who would get the money if they were living at the death of the insured) and the representatives of the insured (to whom the money would come if the insured outlived the beneficiaries). Each of these interests was undoubtedly subject to assignment. Neither one could, in my view, assign anything excepting that which would come to that one; and the assigunent of neither could possibly impinge upon the rights of the other. In other words, the beneficiaries, if of age, could undoubtedly assign their interests under the policy, and the insured could undoubtedly, as against her estate and so as to bind it, assign that interest, i. a., the interest which would come to her estate.”

To these views we cordially subscribe, and think they are decisive of the case, and that the delimitation of these two sets of interests and the different provisions for their transfer suffice to distinguish this case from Landrum v. Knowles, where there was no such specific separation, and no distinction made between assignment and change of beneficiary.

Equitable questions are conspicuously absent from this case also. No question of fraud or of mistake in making out either the policy or the assignment is raised. The controversy is not over what the parties did or intended to do, but what they did being conceded or conclusively shown, the dispute is over the effect of it. Mrs. McCabe stands squarely on her legal rights as an assignee, and as such, could receive by assignment only what Mrs. Cahill had, under the policy, to give, which was the contingent interest of Mrs. Cahill’s estate in default of the children surviving her.

If it had been intended to work a change of beneficiary, the method of doing so was clearly pointed out and should have been followed. The paper that was executed being not a change of beneficiary but an assignment, and by its very terms conveying only the right, title and interest of Mrs. Cahill, is conclusive of the intent of the parties and should not be extended by construction.

It appears, then, that in the Landrum Gase there was only one beneficial interest contemplated by the policy; here there are two. In the Landrum Gase, the word “assignment” fairly covered any transfer of rights in the policy; here a change of beneficiary is specifically so treated, and subjected to a special procedure, while “assignment” relates to a transfer of the residual interest of the insured’s estate. In the former case, the assignment, if not by a beneficiary, was by one having a distinct standing by reason of payment of premiums and not by the insured; here the assignment is by the insured herself. In that case the form of the assignment does not appear; here it specifically is an assignment of such right, title and interest as Margaret Cahill had in the policy. Por these reasons we think that Landrum v. Knowles does not apply, and that the case falls within the general line of authorities cited by the vice-chancellor.

The decree will accordingly be affirmed.

For affirmance — The Chief-Justice, Garrison, Trenohard, Parker, Bergen, Yoorhees, Minturn, Bogert, Yredenburgh, Yroom, Congdon — 11.

For reversal — None.


text:
    Island Heights Hotel and Improvement Company, complainant and respondent, v. Erasmus Freeman et al., defendants and appellants.
    [Submitted June 24th, 1910.
    Decided November 14th, 1910.]
    Complainant’s predecessor in title, a land company, laid out a tract of land as a camp meeting' ground surrounded by building lots and streets and sold the lots to various purchasers subject to rules and regulations to be made by it for the “protection, government and control of the camp meetings and other assemblies to be holden within their premises from year to year.” Finally the land company sold the fee of the camp ground, which passed by mesne conveyance to the complainant. — Held, that while complainant as owner of the fee had a standing in a court of equity to restrain the use of the “camp ground” in any other manner than subject to the rules and regulations referred to, its individual consent as owner of the fee was not required for such use.
    On appeal from an order of the court of 'chancery advised by Vice-Chancellor Walker.

      Messrs. Grey •& Archer, for the appellant.

      Mr. Wilfred B. Wolcott, for the respondent.
   The opinion of the court was delivered by

Parker, J.

The question before us on this appeal is whether the court of chancery erred in awarding a preliminary injunction restraining the defendants from “holding any camp meeting services or other services or meetings of any kind or description upon the land of the complainant described in the bill of complaint, without the consent and permission of the complainant first had and obtained.”

The land in question is the same as that involved in Freeman v. Island Heights Hotel and Improvement Co., argued at the same time, and decided at the present term, but the bill in the present case was filed nearly two years later than that in the case referred to. Under our decision in Freeman v. Hotel Go., the land in question is to remain open for use as a camp ground, not restricted to the Methodist Episcopal denomination, but without regard to denominations, and subject to such regulation as is provided by the terms of its dedication for a camp ground or results from that dedication. The question then arises, what are those regulations and what person or corporation is the party to enforce them and to grant permits for the use of the ground; and also, is the present complainant, the Hotel Company, entitled to maintain a bill to enjoin the use of the ground by defendants if the regulations have not been complied with? The court of chancery, on the bill and answering affidavits, seems to have considered complainant’s assent a sine qua non to such use and to have ordered an injunction on that ground alone.

Several persons, and four corporations, are connected with the inquiry. First, the Island Heights Company, herein called the Land Company, which originally owned the entire Island Heights tract, laid it out into a camp ground and building lots, sold all the lots, or substantially all,

“Subject nevertheless to the following conditions and covenants, 'as parcel of the consideration aforesaid, to wit: That the said party of the second part for himself, his heirs and assigns, shall and doth hereby accept, and receive the aforesaid grant and conveyance of said land subject to the rules, by-laws and regulations which may from time to time be adopted by the said Association for the protection, government and control of the Camp Meetings and other assemblies to be holden within their premises from year to year,”

and finally sold the camp ground itself. Secondly, the Island Heights Hotel and Improvement Company, the grantee through mesne conveyances of the fee of the part of the tract known as the camp ground, subject to such restrictions by way of dedication or implied covenant, or both, as we have held to obtain in the other suit between these same parties. Thwdly, the Island Heights Camp Meeting Association, organized by defendant Freeman and others apparently to take advantage of the camp ground dedication. Fourthly, the individual defendants herein; and fifthly, perhaps, the municipality, presumably the borough of Island Heights. See P. L. 1901 p. 880.

Judging from the language of the covenant quoted, primarily the party to regulate the use of the camp ground would be the Island Heights Association. But as that association seems to have disposed of all its interest in any part of the original tract, and has even conveyed away the camp ground itself, its original right of control would seem to have passed from it. At the same time it cannot be said that the Hotel Company acquired this power of regulation with the fee of the camp ground. On the contrary, we have held that it took the fee subject to the camp ground use, and it would be an absurdity to say that it also has the power of regulating that use. As the land enterprise has grown into a municipality, and the original company, by parting with all its material interest in the venture, has become functus officio, the burden and the right of controlling this g-uosi-public use of the open space would seem to fall upon the municipality as a public trustee.

But this point is not suggested in the record or brief, and no final decision of it is intended. On the question presented we are clearly of opinion that the right of defendants to use the “camp ground” for camp meeting purposes is in no way dependent on.the consent of the complainant, hence the injunction in the present case should have been denied. But we are not disposed to direct a dismissal of the bill, for complainant, as it seems to us, has a standing as successor to -the original dedicator and present owner of the fee to enforce the dedication. 13 Cyc. 500. This would include the right to insist that defendants be restrained from using the land without complying with the regulations in force, whatever they may be, and applying for per-, mission to the party vested with authority to make them. Complainant’s bill does not make this insistment, but only alleges that the defendants have no permission from either complainant or the Island Heights Association, neither of which, as we have seen, is competent to pass 'on the question. It may be, however, that the court of chancery, in its discretion, will permit a suitable amendment, and in view of this, and of the fact that the cause is still in its early stages, the order appealed from will be reversed and the cause remitted to the court of chancery to be further dealt with according to the practice of that court. The appellants are entitled to costs.

For affirmance — None.

For reversal — Ti-ie Ci-iiee-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgh, Dill, Congdon- — 12.


author: Bergen, J.

text:
    Erasmus Freeman, respondent, v. Island Heights Hotel and Improvement Company, appellant.
    [Submitted June 24th, 1910.
    Decided November 14th, 1910.]
    Where a bill Is filed to restrain an action at law, founded upon an alleged trespass resulting from the destruction of a fence erected around land which complainant charges he is entitled to have remain open and devoted to a special use.by virtue of an implied covenant, and defendant answers denying the dedication and claiming an absolute title to the land free from any implied covenant to which issue most, if not all, the testimony is directed, the court will determine the controversy thus presented, although an inference may be drawn that the building of the fence in itself indicates no intention to subject the land to a use inconsistent with the dedication, for the right to fence the land is rested upon the claim of absolute ownership which the act of fencing asserts, and the real issue presented is the right of defendant to erect and maintain the fence as owner, free from any covenant in complainant’s favor, and it ought not to be limited to the question whether or not the fencing is inconsistent with the dedication, because that will not settle the paramount question presented by the pleadings and testimony, and give the parties complete equitable relief in the matter really in dispute.

      On appeal from a decree of the court of chancery advised by Vice-Chancellor Walker, whose opinion is reported in 75 N. J. Eq. (5 Buch.) 491.

      Mr. Wilfred B. Wolcott and Mr. Isaac W. Carmichael, for the appellant.

      Messrs. Grey & Archer, for the respondent.
   The opinion of the court was delivered by

Bergen, J.

The bill of complaint filed in this cause seeks to enjoin the prosecution of an action in trespass brought by the defendant against the complainant and his son Edgar for tearing down a fence in process of erection by the defendant around a parcel of land at Island Heights in this state, and also to restrain the defendant from erecting any fence or structure around the plot which will prevent the same from being used as a camp ground, or from erecting thereon any hotel or other structure inconsistent with the use of the said premises as a camp ground.

The material facts set up in the bill are that the Island Heights Association, a land improvement company, being the owner of about one hundred and fifty acres of land at Island Heights, caused it to be divided into streets, public places and lots, and a map thereof made showing the lots, their numbers, streets and their names, and also a plot marked “camp ground;” that complainant purchased two of the lots, one in October, 1886, and the other in 1890; that he was shown a map made in 1881, and revised in 1886, upon which the land described in the bill of complaint was marked “camp ground,” and purchased his lots upon the representation that the plot or space so marked was to be reserved for use as a camp ground for camp meeting purposes, and that therefore an implied covenant arose that the land in dispute was dedicated to such use. The bill then charges that in derogation of this covenant the defendant, the Island Heights Hotel and Improvement Company, began to enclose the tract by fencing it, with the declared intention of erecting a hotel on the property, and to prevent this, complainant destroyed the fence. The prayer of the bill is

“that it may be decreed that the portion of the said ‘Camp Ground’ hereinbefore designated, the title to which now stands in the Island Heights Hotel and Improvement Company, shall remain open and devoted to the purposes for which it was originally dedicated, and that the said defendant, Island Heights Hotel and Improvement Company, its agents and attorneys be forever restrained and enjoined from erecting any fence or other structure inconsistent with the user of the said premises as a Camp Ground, and that the said defendant, its servants, agents and attorneys, be forever restrained from proceeding further against your orator in the said action commenced against him and the said Alfred Edgar Freeman.”

No objection was made to the sufficiency of the bill, but the defendant answered denying the dedication set up, and averred that the completion of the fence would not deprive the complainant of any rights he may have in the land “because defendant avers that neither complainant or any other person has or had any right in said premises.”

The issue presented by the bill was that by virtue of the dedication claimed, the complainant had the right to have the use of the land restrained to one not inconsistent with a camp ground, and that the building of the fence was the beginning of a use, which, if continued, would be inconsistent9with the dedication.

The defendant, in its answer, after denying that the complainant had airy right in said premises, avers that if he had, the building of said fence would not have deprived him of such right. But the real issue tendered and tried was the question of dedication, and the controlling question heard and determined by the court below was whether the defendant had such an absolute title against the complainant as to justify it in maintaining the fence. This was the principal question presented by the parties in their pleadings and testimony, and determined by the vice-chancellor. It is quite clearly indicated in the defendant’s answer that it claimed a title paramount to any right alleged by the complainant to exist in his favor under the dedication, and it emphasized such claim by posting notices threatening to prosecute as trespassers all persons coming on the premises. The posting of such notices is charged in the bill and admitted in the answer, and when considered with the averment in the answer 'that neither the defendant or any other person has any right in the premises, it is quite evident that the defendant was erecting the fence as an assertion of absolute ownership against all persons.

The real question presented to the vice-chancellor was whether the complainant “has or had any right in the premises,” and it would not be consistent with the administration of equity to restrict the consideration of the cause to the narrow ground whether the putting up of the fence was in itself an act inconsistent with the dedication, when the real question, viz.: has the complainant any right in the premises under the dedication claimed, was the one accepted and tried by both parties as the principal issue between them. Ko testimony was offered by the defendant to explain its purpose in putting up the fence, but we are asked to infer that the building of it did not in itself indicate an intent on the part of the defendant to subject the land to a use inconsistent with the dedication, while the assertion of an absolute right to use the land without interference b3r the complainant, free from any dedication, would tend to negative any such inference. Considering the entire case it is clear that the building of the fence was an assertion of absolute ownership, and its destruction by the complainant was an act intended to dispute such assertion, and was so accepted and understood by the parties to this litigation. To limit this case to the narrow ground that the putting up of the fence was no indication of an inconsistent user does not dispose of the entire case, and it would require further litigation to settle the really important question of difference between the parties.

The vice-chancellor found that there was a dedication of the land in dispute for camp meeting uses and advised a decree against the defendant from which it has appealed. The evidence of dedication was so conclusive that on the argument in this court the appellant abandoned the claim set up in his answer that there was no dedication, but, admitting that the land was dedicated for camp meeting purposes, insisted that the decree was erroneous in several particulars which we will consider in the order submitted.

First, that on a map made by the association prior to the one exhibited to the complainant before he purchased, a much larger tract of land than that shown on the later map was dedicated for camp meeting purposes, and that the complainant has himself purchased a portion of the larger tract with the full knowledge of such dedication, erected a house thereon, and has therefore broken the very implied covenant he is seeking to enforce. This claim is based upon the fact that by a map made in 1878 a boulevard or street was shown which is now included as a part of complainant’s lot; but this claim gives no force to the fact that when the complainant’s land was sold by the Island Heights Association it had prepared another map made in 1881 and subsequently revised in 1886, according to which complainant’s grantor bought and which was exhibited to complainant as the map of the property and upon which he relied in making his purchase. This map extended all of the lots in block 87, in which the land in controversy is located, on each side of the space marked “camp ground” to the river line, and extinguished the boulevard to that extent. Following this map the description of the complainant’s lot in the deed made to his predecessor in title was bounded on the river, and when the deed was given the camp ground extended from the river to Ocean avenue between lots which were undoubtedly a part of the laud originally marked “camp meeting grounds,” so it appears that complainant’s lot is a part of a tract marked on the earlier map of 1878 as camp meeting grounds, and also a part of what was marked as a boulevard on that map. The lot is not a part of the land dedicated as camp meeting grounds by the map of 1881, according to which his predecessor in title bought from the original owner, hut the southerly portion of the lot does embrace a part of the boulevard, and so it is contended that even if no part of this lot is within the camp meeting ground, as shown on the map of 1881, nevertheless it in part embraces a public highway, and that the occupation of it by complainant is a violation of the covenant. But the situation presented is not one of restrictive covenants in furtherance of a general scheme, but of dedication. If the complainant had built his house upon a part of the camp ground as it appeared on the map of 1881, a different question would be presented, for then he would be occupying ground devoted to a special purpose which all of the lot owners, by implied covenants, would be entitled to have devoted to such special use, and it might then be said that he was 'violating the covenant which he was seeking to enforce, but this does not apply to the boulevard which all of the public may have the right to use as a highway, under a general dedication for public use, and not because of an implied covenant with the lot owners. We agree with the vice-chancellor that this point is not well taken.

The second ground urged for reversal is that the implied covenant does not exist in favor of the complainant because he did not purchase on the faith of any representation made by the Island Heights Association. We think that the facts show that he did. He certainly saw the map of 1881 in the hands of Mr. Simpson, the superintendent of the association, and that it was a map authorized and used by the association in making sales does not seem to be disputed. On this map an open space was shown marked “camp ground,” and we think the complainant had the right to rely upon the map as a representation of the situation, for in the deed to his grantor the map is referred to in part description of the lots, and the map represented what rights by way of implied covenants his grantor had taken by the conveyance to him, all of which passed to complainant by his grantor’s deed. We find no merit in this objection.

The third point urged is that so much of the decree as adjudges that under the dedication the land in question “was devoted by the Island Heights Association as a camp meeting ground upon which services could be conducted under the auspices and control of the Methodist Episcopal denomination” is not justified by the evidence. The dedication was limited to a use not inconsistent with a camp ground, and under the evideuce it may fairly be said that the ground was dedicated as a place for holding camp meetings, but it is not limited to meetings of that character held by the Methodist Episcopal denomination alone. The deed to complainant’s grantor and other deeds by the Island Heights Association offered in evidence as proof of the dedication contain the condition that the conveyance is accepted “subject to the rules, by-laws and regulations which may from time to time be adopted by the said association for the protection, government and control of the camp meetings and other assemblies to be holden within their premises from year to year.” This not only does not limit the use to camp meetings of one denomination, but extends it to other assemblies, from which it would appear that the grantor reserved the right to reasonably regulate the holding of meetings on the dedicated property, although not authorized to put it to a use incompatible therewith, and as the Island Heights Association was not incorporated as a religious organization, no inference arises from the character of the company that by the dedication it was intended that the meetings or assemblies would or should he limited to those of a particular denomination. Under the terms of the dedication the complainant is not entitled to have the use of the ground restricted to camp meetings held by the Methodist Episcopal denomination, and the decree must he modified to conform' to the dedication.

The next objection to the decree is that a fence around the land would not be inconsistent with its use as a camp meeting ground. If the defendant had chosen to rest its defence on this ground alone, it might have some force, but as we have said in the earlier part of this opinion, the defendant claims the absolute title free from any implied covenant growing out of the dedication and deed to complainant’s grantor, and in its petition of appeal sets out as a ground for reversal that

“the said defendant is the owner of said land in fee-simple, and it should not be restrained from using the land in any way it sees fit, and it should not be restrained and enjoined from in any manner whatsoever interfering with the use of the said land and real estate for the purpose aforesaid,”

thus raising here the main ground of contention set out in its answer and submitted to the court below for its determination.

Another ground for reversal it is claimed exists because the decree affects the rights of persons not parties to the suit. This is rested upon the fact that although after the dedication and purchase by complainant, the association dedicated two parcels of land, part of the camp meeting ground, of the width of thirty feet for public streets, and also conveyed a small lot thirty feet wide fronting on the river to Angelina D. Brinley, who subsequently conveyed it to J ames Bryant, the present owner, neither the borough of Island Heights or Bryant are made parties to this suit, and as the decree adjudges that the streets and the Bryant lot were dedicated to camp meeting grounds, the rights of the borough and of Bryant have been affected without giving them an opportunity to be heard. As to the Bryant lot the bill of complaint sets out its conveyance in 1893, and that it was a part of the camp meeting lot as shown on the map of 1881, revised in 1886, but the decree includes the lot as a part of the land adjudged to be devoted by dedication to camp meeting purposes, and to affirm this decree as it stands would adjudge the rights of one not a party. The want of proper parties was not raised below, but this court will not determine the right of the complainant against those not called upon to answer the claim established by the decree. McLaughlin v. Van Keuren et al., 21 N. J. Eq. (6 C. E. Gr.) 379. As to the streets, it appears that in 1883 they were dedicated by the Island Heights Association “for the free and unobstructed use of the public of the borough of Island Heights,” by a deed duly executed and recorded, since which time they have been controlled by the borough and all work on them has been done and paid for by it. This does not appear to be denied by the complainant, and he having acquiesced in this control by the borough for over twenty years, it will be assumed that he has waived any implied covenant he had to have the streets devoted to camp meeting purposes. The decree should therefore be so modified as to exclude from the adjudication the streets and the Bryant lot, and limited to that land which appellant claims to own in fee-simple. It is also urged that the decree should be reversed because it enjoins the trespass suit against the complainant’s son, who is a joint defendant therein. No such objection was raised below by any pleading, nor is it mentioned in the petition of appeal as a ground for reversal, and as the defendant here has put its right to prosecute both father and son as joint defendants in the suit at law upon the ground that it has an absolute title to the land, free from the implied covenant claimed, no such injustice is done it by the decree in this particular as to require the entertaining of this question for its protection, notwithstanding it was not raised below. In order that the decree may be modified as indicated in this opinion, it will be reversed and the record remitted to the court of chancery for the purpose of such modification. As the appellant has been obliged to come to this court to correct the decree, it should have costs on the appeal including printing.

For affirmance — None.

For reversal — The Ciiibe-Justige, Garrison, Swayze, Trenci-iard, Parker, Bergen, Voorhees, Minturn, Bogert, Vrbdenburgtt, Dill, Congdon — 12.


author: Vookhebs, J.

text:
    The Association to Provide and Maintain a Home for the Friendless, respondent, v. Traders’ Investment Company, appellant.
    [Argued June 30th, 1910.
    Decided November 14th, 1910.]
    The release by a prior mortgagee of part of his security, although it operate to the disadvantage of a subsequent lienor, will not impair the lien of the mortgage to the amount of the value of the security released, unless such prior mortgagee had, at the time of releasing, knowledge, actual or constructive, of the existence of the subsequent lien.

      On appeal from an order of the court of chancery advised by Vice-Chancellor Howell.

      Mr. Samuel F. Leber, for the appellant.

      Mr. Frank Benjamin, for the respondent.-
   The opinion of the court was delivered by

Vookhebs, J.

This is an appeal from a decree of the chancellor, dismissing a petition praying that the final decree in a foreclosure suit instituted by “The Association to Provide and Maintain a Home for the Friendless” be opened or the amount due to the eomplainanl therein be re-examined, and for further relief.

The foreclosure bill was filed July 8th, 1909, to enforce a mortgage given by one Ankin in October, 1906. It set out a second mortgage for $1,000, also given by Ankin and the assignment thereof to the petitioner; the subsequent foreclosure of the petitioner’s mortgage and the acquisition thereunder by the petitioner of title to the mortgaged premises by sheriff’s deed on June 12th, 1909.

The petition also shows that the complainant held as collateral to its mortgage a policy of insurance; that before the filing of the bill, there had been damage by fire to the building upon the mortgaged premises; that the insurance company had settled the loss for $525, by a check payable jointly to the complainant and the owner; that the complainant had endorsed the check and delivered it to the owner who appropriated the money and failed to repair the building; and that the complainant had not given credit upon its mortgage for the payment thus made.

The petitioner had failed to answer the bill, and in consequence thereof a decree pro confesso had been taken. Its failure to answer is sought to be accounted for as the neglect of its solicitor, induced by a verbal agreement on the part of the complainant’s solicitor, unlcept, to allow further time for the purpose of answering.

The petitioner contends that the amount of insurance thus collected and paid over to the owner should go in reduction of the amount due upon the complainant’s mortgage. This, undoubtedly, would be so if the complainant, at the time of paying the money over to the owner, had knowledge, either actual or constructive, of the existence of the,second mortgage held by the petitioner. The recording of the mortgage is not constructive notice. There is no proof that the petitioner had actual knowledge. The release by a prior mortgagee of part of his security, although it operate to the disadvantage of a subsequent lienor, will not impair the lien of the mortgage to the amount of the value of the security released, unless such prior mortgagee had, at the time of releasing, knowledge, actual or constructive, of the existence of the subsequent lien. See Davis v. Cressman, 57 N. J. Eq. (12 Dick.) 619.

To open a decree, thus regularly entered, was a matter .of grace, and the relief was rightly denied in the absence of proof of such knowledge on the part of the complainant, which was necessary to make the application of the petitioner meritorious.

The decree should be affirmed.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenoiiard, Parker; Bergen, Yoorhees, Minturn, Bogert, Veedenburgh, Yroom, Dill, Congbon — 13.

For reversal — None.


author: Per Curiam.

text:
    National Fire Proofing Company, complainant-respondent, v. William H. Daly et al., defendants-appellants. National Fire Proofing Company, complainant-respondent, v. William H. Daly et al., defendants-appellants. National Fire Proofing Company, complainant-respondent, v. William H. Daly et al., defendants-appellants. William C. Foster, trustee in bankruptcy, &c., complainant, v. Board of Education of Hoboken, defendant.
    (No. 21.)
    (No. 22.)
    (No. 23.)
    (No. 24.)
    [Argued June 22d and 23d, 1910.
    Decided November 14th, 1910.]
    On appeals from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 76 N. J. Eq. (6 Buch.) 35.

      Mr. Fdivard Q. Keasbey, for the National Fire Proofing Company and American Mason Safety Tread Company, appellants.

      Mr. Merritt Lane, for the Alpha Portland Cement Company, appellant.

      Mr. Clifford L. Newman, for William H. Foster, trustee in bankruptcy, and Mr. Abel R. Corbin, for Lawson & MacMnrray, respondent.
   Per Curiam.

The appeals in the above four cases are, each of them, taken from the same decree. Upon all the questions raised by them we concur in the views expressed by Vice-Chancellor Stevens, in the opinion filed by him in the court of chancery. The decree under review will be affirmed.

No. 21—

For affirmance — The Chief-Justice, Garrison, Swayze, Tbenci-iard, Bergen, Voorhees, Mintuen, Bogert, Vredenburgtt, Dill, Congdon — 11.

For reversal — Parker—1.

No. 22—

For affirmance, — The Chief-Justice, Garrison, Swayze, Trenciiabd, Parker, Bergen, Voorhees, Mintuen, Bogert, Vredenburgit, Dill, Congdon — 12.

For reversal — None.

No. 23— '

For affirmance — The Chief-Justice, Garrison, Swayze, Trencitard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgit, Dill, Congdon — 12.

For reversal — None.

Ho. 24—

For affirmance. — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Yoorhees, Minturn, Bogert, Vredenburgi-i, Dill, Congdon- — 1.2.

For reversal — Hone.


text:
    Isabella E. Kipp, petitioner and appellant, v. Hiram B. Kipp, defendant and respondent.
    [Argued June 2d, 1910.
    Decided November 14th, 1910.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning.

      Messrs. Weller & Lichtenstein, for the petitioner and appellant.
   Per Curiam.

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

For affirmance■ — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Yoorhees, Minturn, Bogert, Vredenburgi-i, Dill, Congdon — 12.

For reversal — -Hone.


text:
    Sophie Howell, administratrix, &c., complainant-respondent, v. Jeremiah Steelman et al., defendants.
    [Argued June 28th and 29th. 1910.
    Decided November 14th, 1910.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported in 76 N. J. Eq. (6 Buch.) 423.

      Messrs. Melosh & Morten, for the respondent.

      Mr. Charles R. Stevenson' and Messrs. French & Richards, for the appellants..
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed b}r Vice-Chancellor Garrison in the court below.

For affirmance — The Chiee-Justice, Garrison, Swayze, Trenchakd, Bergen, Voorhees, Minturn, Vredenburgh, Vroom, Dill, Congdon — 11.

For reversal — Parker, Bogert — -2.


text:
    Walter D. Lee, petitioner and appellant, v. Anna C. Lee, defendant and respondent.
    [Argued July 1st, 1910.
    Decided November 14th, 1910.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison.

      Mr. Charles H. Burtis, for the appellant.

      Mr. Elmer W. Demarest, for the respondent.
   Per Curiam.

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

For affirmance — The Chiee-Justice, Garrison, Swayze, Trenci-iard, Parker, Bergen, Voorhees, Minturn, Bogbrt, Vredenburgt-i, Vroom, Dill, Congdon — 13.

For reversal — None.


text:
    City of Paterson, complainant-respondent, v. East Jersey Water Company, defendant-appellant.
    [Argued July 6th and 7th, 1910.
    Decided November 14th, 1910.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 74 N. J. Eq. (4 Buch.) 49.

      Mr. Thomas F. Medran, for the respondent.

      Messrs. Collins & Corbin, for the appellant.
   Per Curiam.

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

For affirmance — The Chirp-Justice, Garrison, Swayze, Trenohard, Parker, Bergen, Voohhees, Minturn, Bogert, Vredenburgb, Vroom, Dill — 12.

For reversal — None.


text:
    Francis E. Larkin et al., appellants, v. James H. Wikoff et al., defendant-respondents.
    [Argued July 8th and 11th, 1910.
    Decided November 14th, 1910.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Walker, whose opinion is reported in 75 N. J. Eq. (5 Buch.) 462.

      Mr. John V. B. Wicoff, for the defendant-respondents.

      Mr. Adrian S. Appelget, for the appellants.
   Per Curiam.

So much of the decree as is involved in this appeal will be affirmed, for the reasons stated in the opinion filed by Vice-Chancellor Walker in the court below.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parke?, Bergen, Voori-iees, Minturn, Bogert, Vredenburgh, Vroom, Dill, Congdon — 13.

For reversal — None.


text:
    West End Trust Company, complainant, v. Robert Wetherill et al., defendants.
    [Submitted July 11th, 1910.
    Decided November 14th, 1910.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning.

      Mr. George Reynolds, for the defendants.

      Messrs. Grey & Archer, for the complainant.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed b3r Vice-Chancellor Learning in the court below.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchabd, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgh, Vroom, Congdon — 12. , .

For reversal — None.


author: Pee Curiam.

text:
    Hannah S. Howey, complainant and respondent, v. Wilbert T. Howey, defendant and appellant.
    [Submitted July 11th, 1910.
    Decided November 14th, 1910.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning.

      Messrs. French & Richards, for the appellant.

      Mr. Charles M. Atkinson, for the respondent.
   Pee Curiam.

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

For affirmance — The Ciiiee-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgh, Vroom, Dill, Congdon — 13.

For reversal — None.


text:
    John F. Speeler, complainant-respondent, v. Kate S. Heil, defendant-appellant.
    [Submitted July 11th, 1910.
    Decided November 14th, 1910.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Walker.

      Mr. James J. McGoogan, for the respondent.

      Mr. W. T-Iolt Apgar, for the appellant.
   Per Curiam.

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

For affirmance — The Chibe-Justice, Garrison, Swayze, Teenchard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgh, Vroom, Dill, Congdon — 13.

For reversal — None.


text:
    Jessie A. Wood, appellant, v. Mary Wood, respondent.
    [Argued June 23d, 1910.
    Decided July 5th, 1910.]
    On appeal from a decree of the prerogative court advised by Vice-Ordinary Walker.

      Mr. Alfred F. Stevens, for the appellant.

      Mr. Frank F. Bradner, for the respondent.
   Per Curiam.

Jessie A. Wood, the appellant, presented to the orphans court of the county of Essex a petition praying that she be authorized to adopt her minor niece, Loretta Wood, pursuant to the provisions of “An act concerning minors, their adoption, custody and maintenance” (P. L. 1902 p. 259), as amended in 1905 (P. L. 1905 p. 272). The application was resisted by the mother of the child, the present respondent, and, after a full hearing, the prayer of the appellant’s petition was granted and a decree of adoption made. From this decree the mother appealed to the prerogative court, and that court, after hearing, reversed the decree of the orphans court. The present appeal is from the decree of reversal.

Our examination of the ease satisfies us that the conclusion reached by the Essex orphans court was entirely justified by the proofs submitted and for the reasons set out in the following-opinion of Mr. Justice Ten Eyck, filed in that court:

“Loretta Wood, a child now twelve years old, is the niece of the petitioner, being the child of her brother Eobert Wood.

“Until 1902 all the parties lived in Summit. The petitioner and her sister then moved to Newark and have since lived there, the sister (Mary Wood) having a position as forewoman in a shirt factory and the petitioner keeping house and assisting in the work brought home from the factory by her sister. Together they, make from twelve to fourteen dollars per week. They are apparently people of refinement and have a comfortable home. Before they came to Newark, in 1902, they had always bought Loretta clothes and were very fond of her, she stajdng with them in the daytime and going home at night. When they moved to Newark their brother brought Loretta down and asked them to take her and bring her up and have her educated. The aunts testified that he then said his wife wouldn’t look after her properly, and that the mother often said, ‘You can do better by her than I can.’ At that time he had two other smaller children. Loretta was then six years old. She occasionally visited her parents, but thereafter lived with her aunts. Afterwards two other children were born to her parents. Loretta’s mother never made any objection to her staying with her aunts and seemed to be satisfied with the arrangement. In December, 1905, the father died, leaving his widow nothing except about five hundred dollars insurance. She kept a boarding-house about six months, and since then has supported the family by working out at laundry and other work, making ten or twelve dollars a week. The two youngest children she put in tlie Fresh Air home, as she was obliged to be away all day; the two next younger than Loretta went to school and had to look after themselves, got their own lunch and do what' they could of the housework. Soon after the father’s death Miss Mary Wood was at Summit and said to a Mrs. Eoss, who lived in the same house with Mrs. Wood (Loretta’s mother), that she hoped Mrs. Wood would not take Loretta away from them. Mrs. Eoss reported this to Mrs. Wood, who came and told Miss Mary Wood that she need not be afraid, that she would never take her ‘because you can do better by her than I can.’ The mother admits that Mrs. Eoss told her about Mary Wood speaking to her, but denies that she then said anything about it to Mary Wood; she says that she did say to Mrs. Eoss, T didn’t have any intention of taking her just yet/

“The mother continued to allow Loretta to stay with her aunts, making no objection until June, 1908, when she wrote, saying she wanted her and her sister Lucy (who was also then with the aunts) to come back to her. The only reason she gives for making this change is that Bertie (the next oldest child) had had to ‘rough .it/ she thought Loretta ought to do the same. She says the reason why she allowed her to remain was because she knew the aunts were fond of her and she didn’t want to hurt their feelings. She says she always had objected to Loretta’s going to her aunts to live, from the first, but admits she never made anjr objection, because she wanted to keep peace in the family and knew she would have her say some day.

“After the father’s death, the third eldest child, Lucy, was also -taken by these two aunts and kept about two and a half years, a third aunt paying her expenses for board and clothes; the second eldest, Bertie, then being the only one remaining with the mother, the two jnungest being in the Eresh Air home.

“The aunts made no objection to Lucy’s going back, but wished to keep Loretta. They told the mother if she insisted on taking her, that they would charge board at $3 a week for the six years. They said they did this only because they thought it would induce the mother to leave her with them, as they knew she had no money.

“In November the mother went, with another woman, to the public school and when Loretta came out the mother, by advice of her counsel, took her and compelled her to go with her. The child cried and objected. She asked to be allowed to tell her aunts, but the mother refused, saying, ‘They didn’t consider me,_ why should I consider them ?’ Loretta- threatened to tell the school principal, but was not given the opportunity to do so. Her school companions followed them to the railroad station.

“The mother wrote the aunts, and Miss Jessie had a talk with her in Newark and afterwards in Summit. Mrs. Wood told her that she had taken the children home to bring them up as Catholics; that they had been bringing Loretta up to look down on her, and that she must, rough it like the others. The aunt offered to have her confirmed in Newark and bring her up as Catholic, but she refused. The aunt had seen a priest in Newark and he had said he would speak to the priest in Summit about it.

"Miss Mary Wood soon after went to Summit. Mrs. Wood refused to let her see Loretta at home. She saw her at the parochial school. She saj^s Loretta seemed afraid to speak to her and looked ill and poorly cared for.

"The children’s ages now with Mrs. AVood are — Loretta twelve, Bertie ten, Lucy seven..

"Under the facts brought out at the hearing, some of which are shortly stated above, I am satisfied that Loretta was, at the ago of six, placed by the father, with the mother’s consent, in the care of her aunts, with the intention of having her brought up and educated by them. No objection to her schooling or on religious grounds was ever made by the mother. She had a .good home, loved her aunts and was loved by them. She attended the public schools in Newark and was brought up in a much better condition of life than was within the power of her parents to afford. They had a large family of small children, and it was no doubt a hard strain on them to look after and bring them up properly. The aunts had always provided Loretta’s clothes, even before they took her, and she had spent much of her time with them while they lived in Summit. She evidently was entirely happy and contented with them. She said she would not go back to her mother and threatened to run away if she took her back. I do not believe the evidence of the child, after she had been several months in her mother’s care, that her aunts'ever tried to poison her mind against her mother. I believe tire real state of the child’s mind was shown by her crying and objection to going when her mother took her away by force. The aunts impressed me as people of truthfulness and of unusual refinement and cultivation for their station in life, and no doubt are as fond of Loretta as they could be if she were their own child. The conduct of her father and mother during all the time she was there, and of the mother after the father’s death, showed their confidence in the aunts and belief that it was for Loretta’s welfare to remain there. The only reason why Mrs. AVood wanted to take her away evidently was to make some use of her and to have her hough it’ at home with her younger sisters. Not for Loretta’s benefit, but to keep her down to the level with the others. So far as the religious aspect is concerned, while the mother knew for years that Loretta attended the Presbyterian Sunday-school, she never made any objection to the aunts or even requested that any change be made. She has no right to break the ties which she thus allowed to be formed, for practically all of the child’s life, and forcibly transfer her into a different atmosphere and surroundings, for any reason she, gives, unless it may be considered that as her mother she still has that absolute right. Considering the child’s interest alone, there is no question in my mind that it requires that she should be kept by her aunts. Loretta now says she prefers to be with her mother and sisters because she has more fun and learns more. Both the substance and manner of her testimony convince me that she is not truthful at the present time. She is a very attractive child, but apparently easity moulded, and, in my judgment, • does not now make a true and frank statement of her own feelings and wishes. Up to the very time when she was taken by force, crying, from school, by her mother, she always wished to stay with her aunts, and never wanted to go home. Her surroundings at the aunt’s home are, in my judgment, much more calculated to result in her proper bringing up, education; maintenance, cultivation and everything that goes to make a woman of character, than in her mother’s home. Nothing can be said against Mrs. Wood’s character or reputation, but the case is full of evidence that if the child’s good is to be considered, the status created in all these years should not be changed for any reasons given by the mother and could not be‘without serious injury to the child’s welfare.

“As to the objection that there can be no decree of adoption without the mother’s consent, I think the facts bring the case within the rule laid down in the case of Winans v. Luppie, 47 N. J. Eq. (2 Dick.) 302. While there has been no actual abandonment, there has been, in my opinion, such a course of conduct on the part of both the father and mother as to indicate that there was a settled intention to forego parental rights and to leave the child permanently in the care of her aunts, for the reason that it was considered by both parents to be for the child’s good. The mother should not now be allowed to reassert her rights to the child’s detriment.”

In view of the statement contained in the opinion of the vice-ordinary, that it seems to be conceded in the opinion of the orphans court that there had been no abandonment of her daughter by the respondent, we deem it proper to say that we do not so understand the opinion of the orphans court. The statement contained in it that "there has been no actual abandonment” is explained by what immediately follows it, and as we read it the conclusion expressed is that while there has been no actual abandonment, i. e., desertion, of the child by its mother, there has been such conduct on the part of the mother as amounts to an abandonment within the meaning of that word as used in the statute.

The decree of the prerogative court will be reversed.

For ajfirmoMce■ — None.

For reversal — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Voori-iees, Minturn, Vreden-BURGTT, YbOOM, GRAY, DlLL, CONGDON-13.


text:
    Cassie L. Johnson, complainant, respondent, v. Ernestina F. Argueso et al., defendants, appellants.
    [Submitted July 11th, 1910.
    Decided November 14th, 1910.]
    On appeal- from a decree of foreclosure advised by Vice-Chancellor Garrison.
    . Mr. Arthur II. Bissell, for the defendants, appellants.

      Mr. Charles R. Snyder, for the complainant, respondent.

      Mr. Arthur II. Bissell and Mr. Edward J. Shumway (of flic New York bar), on the brief, for the appellants.

      Mr. Charles B. Snyder, for the respondent.
   Pee Curiam.

The single ground of appeal, set out in the appellants’ petition, is that the decree is erroneous, in that it “directs that an execution issue to the sheriff of the county of Monmouth to make sale of the mortgaged premises to raise and pay to the complainant the sum of $2,000, with interest” and costs. No attack is made by the petition upon that part of the decree which adjudicates the respective rights and obligations of the parties under the mortgage. Only errors alleged in the petition of appeal are before this court for consideration. Consequently, most' of the matters discussed by counsel in their briefs cannot be decided by us. We find no error in that part of the decree which is attacked by the appellant’s petition, and concur in the opinion of the learned vice-chancellor so far as it deals therewith.

•The decree under review will be affirmed.

For affirmance — The Ciiiee-Justice, Garrison, Swayzk, Trenctiard, Parker, Bergen, Voori-iees, Minturn, Bogert,. Veedenburgi-i, Vroom, Dill, Congdon — 13.

For reversal — None.


author: Pitney, Chancellor.

text:
    Mahlon Pitney, Chancellor.
    ■John E. Emery, Frederic W. Stevens, Eugene Stevenson, Lindley M. Garrison, Edmund B. Beaming, James E. Howell and Edwin E. Walker, Vice-Chancellors.
    The Trustees of Princeton University v. Edmund Wilson, attorney-general, et al.
    [Decided December 10th, 1910.]
    1. Where the duty of a trustee is a matter of doubt, he is entitled to the directions of a court of equity, that he may be safe in proceeding to execute the trust, the rule applying with full force to the trustees of a public charity; and where the trust is created by will, the proper construction of the will is a necessary prerequisite to the giving of directions.

      2. In a suit for enforcement of a public trust or charity, the attorney-general is the proper suitor, and he may file an information either of his own motion or upon the relation of any party concerned, and where a bill is filed by trustees of a public charity, seeking directions as to the execution of their trust, the attorney-general is a proper party defendant, as representing the public interest.
    3. In a suit by trustees of a public trust for directions as to execution of the trust, the heirs-at-law or next of kin of the donor are not necessary parties defendant, in view of the fact that no right of reverter arises upon the breach or violation of a public trust.
    4. In construing a provision of a will, creating a trust, the intent of testatrix as expressed by the language employed in the will as a whole is controlling.
    5. The word “ground” is defined as meaning land; estate; possession ; and in the plural, garden; land; field belonging to a homestead; land appropriated to some special use; and the limited meaning of the word “grounds.” as connoting appurtenancy to a homestead or other building, is not ordinarily to be adopted, unless it appears from the context that the word is employed in connection with some particular building or group of buildings, or that there is an intent to distinguish between the “grounds” and the other lands of the same owner.
    C. A testatrix in one item of her will devised to trustees “my house and grounds,” with all the buildings standing within such grounds, to be used for public purposes, and in a subsequent item gave the remainder of her estate to the trustees of a university to be devoted to the construction “upon the grounds of the said university” of a building to be used for certain purposes. — Held, that the term “university” was not used to designate any building or group of buildings, but the corporation, the preposition “of” denoting proprietorship and not location, and the word “grounds” — evidently used in the latter item to express the rhetorical antithesis between “my house and grounds,” used in the previous item, upon which a public hall and garden were to be established, and the establishment, of the building upon the grounds “of the said university” —will not be deemed to bear a limited or special meaning confining it to such lands as lie immediately adjacent to and are used in connection with the existing buildings of the university, but to embrace any land owned by the university so located as to make the building to be erected available for the purposes intended; and a tract not contiguous to the original and central campus upon which the existing university buildings are situated, but separated therefrom in part by a railroad, in part by a public street, and in part by land of other owners, the only communications between the tract and the central campus being by means of streets or lanes, would be “grounds of the said university,” within the meaning of the will, where owned by the university.
    On bill, answers and proofs.

      Messrs. Lindabury, Depue & Faulks, for the complainants.

      Mr. Nelson B. Gaskill, assistant attorney-general, for the attorney-general.

      Mr.-Frank S. Katzenbach, Jr., for the executors of Josephine A. Thomson Swann.
   Pitney, Chancellor.

The ease, shortly stated, is as follows: The complainants, the trustees of Princeton University, have received from the executors of Josephine A. Thomson Swann, deceased, late of the borough of Princeton, a fund of approximately $325,000, which, by the thirteenth paragraph of her will, was given to the complainants, in trust, for the erection, construction and maintenance “upon the grounds of the said university” of a building to be known as the “John R. Thomson Graduate College, of Princeton University.” The pertinent language of the will will be quoted below. It provides, among other things, that Mrs. Swann’s executors shall be consulted respecting the character and location of the proposed graduate college. The terms of the bequest are manifestly such as to create a public trust or charity.

In view of doubts that have arisen as to the construction of the clause in question, the bill is filed for the purpose of procuring the aid and direction of this court, to the end that the trust may be executed according to the real intent and purpose of the will, and with due regard to the interests of the public and the protection of the complainants.

The complainants are desirous of erecting the proposed graduate school as soon as practicable, have consulted Mrs. Swann’s executors respecting its character and location, and have determined, with the approval of the executors, that it should be located upon a tract of land in Princeton comprising two hundred and twenty-two acres, known as the Springdale farm and commonly called the “golf links.” This tract, while now known as a part of the university campus, is not contiguous to the original and central campus upon which the existing university buildings are situate; it is separated therefrom in part by the Princeton branch of the Pennsylvania railroad, in part by a public street known as Alexander street, and in part by lands of other owners; the only communication between the golf links and the central campus being by means of streets or lanes.

The desirability of locating the Thomson Graduate College upon the golf links site has become accentuated because of changed conditions since the death of Mrs. Swann, brought about by a gift proposed to be made by Mr. William Cooper Proctor, an alumnus of the university, and a bequest actually made by the will of Isaac C. Wyman, deceased, another alumnus; Mr. Proctor’s offered donation being intended to assist in the development of the proposed graduate college, and being conditioned upon the location of such college buildings upon the golf links property, and Mr. Wyman’s bequest being given for a like purpose, and being so large in amount that it could not be properly employed in the development of a graduate college upon the central campus, for want of sufficient and suitable ground space in that location.

The bill prays that by the decree of this court the true interpretation and construction of the thirteenth clause of Mrs. Swann’s will may be determined, and that it may be thereby established either, first, that under the will the trustees of the university are authorized to establish and construct the John E. Thomson Graduate School upon the land known as the Spring-dale farm, or golf links, or, second, that in view of the changed conditions and circumstances above mentioned, the graduate school may be established and constructed upon the site referred to, notwithstanding the construction of the will.

The attorney-general, by his answer, submits himself to the judgment and decree of the court, and prays that the will may be construed in the respects referred to, and that the trust created by the thirteenth paragraph may be established and executed as a public charity under the direction of the court. Mrs. Swann’s executors are joined as parties defendant. They have answered, submitting themselves to the decree of the court. Upon these pleadings, and upon proofs taken in open court in the presence of all parties, the cause was brought to hearing.

The complainants invoke, in the alternative prayer of their bill, the doctrine of cy pres. If this doctrine is to be resorted to, it, of course, becomes material to inquire whether the erection of the John E. Thomson Graduate School upon the central campus is impracticable, and whether its location upon the golf links is warranted by the legitimate application of the doctrine; but if the will permits the trustees of the university to select a site upon the golf links, then (since they have the approval of the executors of Mrs. Swann for that location) the reasons that have impelled them to that selection are immaterial except upon the question of their Iona fides. IJpon this point it is sufficient to say that the proofs render it clear — there being nothing to arouse eveh a suspicion to the contrary — that in selecting the site upon the golf links, subject to the sanction of this court, the trustees have acted upon the fullest and most serious consideration, upon grounds that concern solely their duty to the trust, and that their discretion has been most fairly exercised.

I deem it entirely clear that the complainants are entitled to the aid of this court, and that they have properly invoked its jurisdiction, and have brought all necessary parties before the court.

Where the duty of a trustee is a matter of doubt, he is entitled to the aid and direction of a court of equity, in order that he may be safe in proceeding to execute the trust. Where the trust is created by a will, the proper construction of the will is a necessary pre-requisite to the giving of directions to the trustee. The rule entitling trustees to the aid of this court applies with full force to the trustees of a public charity. Attorney-General v. Moore’s Executors, 19 N. J. Eq. (4 C. E. Gr.) 508.

In suits for the enforcement of such a public trust or charity, the attorney-general is the proper suitor, and he may file an information either of his own motion or upon the relation of any party concerned. MacKenzie v. Trustees of Presbytery, 67 N. J. Eq. (1 Robb.) 652, 683.

And where a bill is filed by the trustees of a public charity seeking directions as to the mode of executing their trust, the attorney-general is a proper party defendant as representing the public interest. Harvard College v. Society, 3 Gray (Mass.) 280, 282; Jackson v. Phillips, 14 Allen (Mass.) 539, 579; Lanning v. Commissioners of Public Instruction, 63 N. J. Eq. (18 Dick.) 1, 8; MacKenzie v. Trustees of Presbytery, 63 N. J. Eq. (1 Robb.) at p. 686; Trenton Society v. Howell, 63 Atl. Rep. 1110; Larkin v. Wikoff, 75 N. J. Eq. (5 Buch.) 465.

No question is raised about the propriety of joining the executors of Mrs. Swann as defendants, and I, therefore, have not considered whether it was necessary to join them.

It does not seem to me that the heirs-at-law or next of kin of Mrs. Swann are necessary parties. No right of reverter arises upon the breach or violation of a public trust. Mills v. Davison, 54 N.J. Eq. (9 Dick.) 659, 667; MacKenzie v. Trustees of Presbytery, 67 N. J. Eq. (1 Robb.) 652, 678.

Coming, therefore, to the merits, the question for solution is, what is the proper meaning of the phrase, “upon the grounds of the said university,” as employed in the thirteenth or residuary clause of Mrs. Swann’s will, in respect of the location of the proposed graduate college building.

Two doubts have been suggested, viz., first, assuming that at the time the will was written the golf course had been the property of the University, was it a part of “the grounds of the said university,” or is the term “grounds” to be understood as meaning only the land immediately surrounding the existing university buildings and connected therewith, as distinguished from the outlying lands of the university?

Second. If the golf course is, in respect of its location, properly to be considered as a part of “the grounds of the imiversity,” is it excluded from consideration because of the fact that it had not become the property of the university when the will was written ?

Upon both of these questions the intent of the testatrix, as expressed by the language employed in her will, must of course be controlling. And not only the thirteenth paragraph but the entire context must be regarded. It so happens that in the preceding paragraph the word “grounds” is repeatedly employed, and I' therefore deem it important to quote the twelfth and thirteenth paragraphs in extenso.

“Twelfth. I give, devise and bequeath unto William Milligan Sloane, of Princeton, New Jersey, Bayard Stockton, of Princeton, New Jersey, and Francis Larkin, Jr., of Ossining, New York, their heirs, executors, administrators and assigns, my house and grounds known as “Belgarde” situate at Number 50 Stockton Street, in the Borough of Princeton, and all the buildings standing within said grounds; also the portraits of my late husband, John R. Thomson, and myself; my copies of the old Masters; my bronze by Rauch (Amazon and Tiger) with stand; my two marble Sphinxes; my marble pieces known respectively as ‘The Dying Gladiator’ and ‘The Boy Playing with Jackstones;’ my carved teak-wood settee 'and chair; my German carved walnut settee and chairs; my two Siamese bronze Temple pieces; and my Japanese Warrior in Armor; all of which are now contained in my said House. Said property shall be held by my said Trustees their successors and assigns, in perpetual trust for the use of the municipal corporation known as ‘The Mayor and Council of the Borough of Princeton’ and the inhabitants of said Borough as and for a public hall and garden. My trustees shall expend, out of my estate, the sum of twenty thousand dollars in remodeling the said house and fitting the same for gatherings, large and small, and in affixing therein or thereto a tablet, upon which shall be engraved the words ‘Thomson Hall.’ They shall furnish an office in one of the buildings on said property for the use of the Mayor of said Borough, and also a Council Chamber for the meetings. of the Municipal Council, without charge. They shall maintain the said grounds substantially as they have been laid out and planted by me for use as a public park. They shall cause the said portraits, pictures and art objects to be placed on exhibition in one or more suitable rooms in said hall to be reserved for that purpose, and shall add thereto, from time to time, such other pictures and objects of art as may be donated or loaned to them for that purpose and as shall be deemed -by them to be of sufficient educational or artistic value, and they shall admit the public to the said room or rooms, at such times and under such reasonable regulations as they may prescribe. My said trustees shall have authority, from time to time and at all times, to rent any of 'the rooms in any of the said buildings for social, political or other public gatherings that will' not interfere with the uses aforesaid, and they shall apply any and all rent and income derived from such letting to the maintenance, repair and improvement of said buildings and grounds. And for the further purpose of maintaining the said buildings and the said grounds, I give and bequeath to my said Trustees the sum of fifteen thousand dollars, to be invested by them and kept invested in good interest bearing securities, and the income received therefrom to be applied by them, from time to time, as required, to the care and maintenance of the said grounds and the said buildings. My said Trustees shall have power and authority, from time to time, to make all such rules and regulations concerning the use, care and preservation of said grounds and buildings as may be reasonably necessary, and the same to alter, amend or repeal at their discretion. Upon the death or resignation of any of said Trustees, I direct the survivors or survivor of them to apply to the Chancellor of this state to appoint a successor to the one so dying or resigning, and the person so appointed shall be thereby invested with all the power and discretion in the execution of this trust that he would have had if named herein.”
“Thirteenth. I give, devise and bequeath all the rest, residue and remainder of my estate, of whatsoever kind or nature, and wheresoever the same may be situate, unto the ‘Trustees of Princeton University,’ their successors and assigns forever, in Trust, nevertheless, to devote the same or the proceeds thereof, as soon as practicable, to the erection and construction, upon the grounds of the said University, of a building to be known as ‘The John R. Thomson Graduate College of “Princeton University ’ the said building to contain sitting and sleeping rooms for officers and students, with a dining hall, kitchen and the necessary appurtenances, in a portion of the building entirely separate and apart from such sitting and sleeping rooms. The living rooms shall be rented at the best prices they will command to Graduate, Senior and Junior students of the University, and the income derived from such rentals after deducting the cost of maintaining said building, shall be devoted to the maintenance of as many fellowships of four hundred dollars each as the funds will provide. These fellowships shall be awarded by a committee to be designated from time to time by the Trustees of the University, and shall be given to Bachelors of Art of the male sex of high character and ability who would not otherwise be able to continue their studies at the University, and they shall be terminable at the discretion of said Committee. The Fellows, to a number not exceeding thirty shall have unfurnished rooms in said building free of rent. The tuition fees of the Fellows shall be remitted by the Trustees as a condition of this gift. The number and situation of the rooms allotted to the officers and Fellow's shall be fixed by the said Committee, but in no case shall the rent of more than thirty rooms be remitted. The board at the College table shall be regulated by the Committee, and the Fellows of the Graduate College shall pay the regular charge therefor,' and they shall eat at the College table, unless dispensed therefrom by the Dean of the Graduate Faculty for good and sufficient reasons. Other students of the University may be admitted to the College table at the discretion of the said Dean.
“I further direct that the said fellowships shall be bestowed upon Bachelors of Arts who are engaged in literary and scientific research other than that directly connected v/ith professional studies so-called; that said fellowships shall be known as ‘The John R. Thomson Fellowships ;’ that in making appointments to said fellowships. Bachelors of Arts of Princeton University shall have preference in the order named— first, from the Borough of Princeton; second, from the County of Mercer, and third from other parts of the State of New Jersey; provided always, that the attainments of such persons are fully equal to those of other applicants. In default of such candidates, the appointments are to be open to male Americans holding the degree of A.B. from any approved college or university. No one of said fellow'ships shall be given to or held by a married man.
“I further direct that in case the number of applicants for said fellowships who come w'ithin the above designations should not, at any time or times, be sufficient w'orthily to fill all the said fellowships, then the surplus moneys arising from said rentals shall be placed in an endowment fund, the income of which, after the fund reaches the sum of one hundred thousand dollars, shall be applied to a University professorship in American History.
“It is my desire that my executors shall be fully consulted respecting the character and location of the said Graduate College, which is designed by me for a permanent memorial of the interest felt by my late husband, John R. Thomson, in the higher literary and scientific education of his countrymen.”

The twelfth paragraph shows that the word “grounds” is used there as meaning the lot of land appurtenant to the residence of the testatrix, and, manifestly, it includes the entire lot upon which that residence stands.

In what sense, then, did she employ the term “grounds” at the beginning of the thirteenth paragraph, which provides for the erection and construction of a graduate college building “upon the grounds of the said university?” Evidently, I think, one reason for using this phrase was to express the rhetorical antithesis between “my house and grounds” upon which a public hall and garden were to be established, the building to be known as “Thomson Hall,” and the establishment of the “John R. Thomson Graduate College of Princeton University” upon the grounds of the said university.

The word “ground” (in the singular) is of most extensive signification. In an early edition of Webster’s Unabridged it is defined as meaning “land; estate; possession;” an instance of its use in the plural being quoted from Dryden, viz.: “Thy next design is on thy neighbor’s grounds.” In the latest edition of Webster this definition is amplified as follows:

“Land; estate; possession; field; esp. (pi.) the gardens, lawns, fields, etc., belonging to a homestead; as, the grounds of the estate are "well kept up.”

In the Century Dictionary we find the following definitions:

“6. Land appropriated to individual ownership or use; cultivated land; a landed estate or possession; specifically, the land immediately surrounding or connected with the dwelling-house or other building and devoted to its uses; commonly in the plural. 7. Land appropriated to some special use (without reference to ownership), as the playing of games ; as baseball grounds ; cricket grounds ; hunting grounds, etc ”

It seems to me that the limited meaning of the word “grounds,” as connoting appurtenancy to a homestead or other building, is not ordinarily to be adopted unless it appears from the context that the word is employed in connection with some particular building or group of buildings, or that there is an intent to distinguish between the “grounds” and the other lands of the same owner, as between lands reserved for home uses and outlying lands devoted to agriculture, pasturage, or the like.

In the thirteenth paragraph of the will the phrase is, simply, “the grounds of the said university.” The term “university,” as I take it, does not here mean any building or group of buildings, but the corporation. The preposition “of” in this connection denotes, I think, proprietorship, and not location; a view that seems to be strengthened by the circumstance of antithesis already referred to.

And the antithesis also relieves us from the necessity of adopting precisely the same meaning for the word “grounds” in the thirteenth paragraph that it bears in the twelfth; so that if we should conclude that in the twelfth it meant a mere curtilage, it would not follow that it conveyed identically the same idea in the thirteenth, for the writer may well have intended to contrast the lands referred to, not only in respect to their ownership but in other respects.

These criteria indicate that the word “grounds,” in the thirteenth paragraph, bears no limited or special meaning that would confine it to such land as lies immediately adjacent to, and is used in connection with, the existing buildings of the 'university.

But I do not desire to place undue reliance upon these refinements. The main question is, What did the testatrix mean by the language employed? It is extremely improbable that either she or the draftsman of the will studied long over the phrase in question. And we should not study over it so long, nor so minutely, as to lose sight of the fact that the will was doubtless intended to convey the meaning of the testatrix upon a single attentive reading and without prolonged and microscopic scrutiny.

So regarding it, and carefully reading the entire will, the plain impression made upon my mind by the thirteenth paragraph is that the testatrix intended the proposed graduate college to be located upon the land owned by Princeton University, the building to form a part of the equipment of the university, and to be so located as to be available as a place of residence for students of the university; its location, subject to these qualifications, to be determined upon by the trustees after consultation with her executors. This location is not intended to be confined to such portions of the land of the university as are closely adjacent to the existing buildings and, in a sense, appurtenant to them and devoted to their uses; rather is it implied that the proposed graduate college shall stand surrounded by some adequate space of ground as its own appurtenance.

, In my opinion the proposed site upon the golf course is, in respect of its location, properly to be considered as a part of “the grounds of the university” within the meaning of the will.

The next query is, by what point of time is the question of the ownership of the proposed site by the university to be tested.

The original will, in which the bequest is contained, bears date July 30th, 1902. By codicil, dated July 24th, 1905, the testatrix ratified and confirmed that portion of the will. She died in the month of March, 1906.

The golf links property was purchased in the year 1899 by certain friends of the university who were deeply interested in its growth and development. The eonvej^ance was taken in the name of Messrs. Moses Taylor Pyne, Cornelius C. Cuyler and Stephen S. Palmer, as joint tenants. The money for its purchase was, however, subscribed and paid by a number of persons (twenty-one in all), among whom were the three just named, and these three issued to the several contributors certificates of interest or declarations of trust, setting forth the right of the individuals to participate in any proceeds or profits arising from the lands, whether by sale, lease or otherwise. Up to this point, although the unexpressed purpose would seem to have been to hold the land for the ultimate benefit of the university, there was no legal declaration of any trust in its favor. Afterwards, and prior to the date of the codicil to Mrs. Swann’s will, all of the certificates of participation were assigned and transferred to the trustees of the university, who thereupon became the equitable owners of the property and entitled to receive a deed of conveyance from the three joint tenants. Such a deed was afterwards made, but not until some time after Mrs. Swann’s death. It seems to me the date of this conveyance is a matter of no legal significance, and that for present purposes the university must be deemed to have been the owner of the property in question at the date of the codicil.

The evidence shows that the acquisition of the property by the university was publicly announced at the commencement ceremonies in the month of June, 1905 (prior to the date of the codicil), and that Mrs. Swann, who was and for many years had been a resident of Princeton, possessed of remarkable intelligence and keenly interested in the affairs of the university, was probably present when this announcement was made. I confess, however, that I attribute no especial significance to this circumstance. It requires no such evidence to raise the presumption that the testatrix was familiar with the circumstances in view of which she made her testamentary dispositions.

It is familiar law that a will of personalty speaks as of the death of the testator. In the absence of statute a devise of land is treated as being in the nature of a conveyance, and as passing nothing that was not owned by the testator at the date of the will. 1 Jarm. Wills (R. & T. ed.) 155; Gardner’s Executors v. Gardner, 37 N. J. Eq. (10 Stew.) 487, 490. We have a statute which provides that real estate acquired by a testator after making his will shall pass by any devise sufficient to include it, unless a contrary intention be manifest on the face of the will. P. L. 1851 p. 218 § 3; Gen. Stat. p. 3761 pl. 24.

Of course, this statute has no reference to lands that are not the subject of a devise, and are referred to only for the purpose of defining or imposing a limitation upon some testamentary disposition. Nor am I inclined to think that the common-law rule as to devises applies to lands thus referred to. If, however, the rule of the common law did apply, it must be applied as of the date of the codicil, and not of the original will, for the codicil amounts to a republication. Stephens’ Executors v. Milnor, 24 N. J. Eq. (9 C. E. Gr.) 358, 374; Doe d. York v. Walker, 12 M. & W. 591; Emuss v. Smith, 2 De G. & S. 722.

I am inclined to think the will before me, in the reference to “the grounds of the said university,” is to be understood as speaking at the time of testatrix’s death. But, not to go beyond the exigencies of the case, it is, I think, entirely safe to treat it as speaking as of the date of the codicil. So treating it, the ownership of the golf links by the university at that time was of so substantial a character as to bring this property within the descriptive clause in question.

I conclude that the complainants are entitled to a decree establishing their right to employ the Swann bequest in the manner proposed by them, and this upon the fair interpretation of the testamentary provisions, and without resort to the doctrine of cy pres.