author: Berry, Vice-Ordinary.

text:
    In the matter of the estate of Ellen M. Collins, deceased.
    [Submitted April 12th, 1926.
    Decided May 6th, 1926.]
    1. Where a gift is made by will to a trustee to pay the income to life tenants, and upon the death of both life tenants to distribute the corpus amongst certain persons, this is the language of a present gift, effective at the death of the testator, the delivery only of the subject of the gift is postponed for the convenience and benefit of the estate, and is vested from the time of the death of the testator, and being so vested, will pass to the legal representative of a residuary legatee who has died before the life tenants.
    2. A gift to a trustee is regarded in equity as a gift to the legatee, and, as the fund vested in .the trustee at the death of the testator, so it vested in the legatee.

      On appeal from a decree of the Essex county orphans court.

      Messrs. Pilgrim & Ritger, proctors for the appellant.

      Messrs. Howe & Davis, proctors for the First National Bank of Montclair, appellee.

      Mr. Edward 0. Pettit, proctor for Mrs. James G. Collins and James C. Collins, appellees.
   Berry, Vice-Ordinary.

This appeal brings up> a decree of distribution entered in the Essex county orphans court on January 29th, 1926, in so far as that decree held that a bequest of six-sixteenths of the residue of the estate of Ellen M. Collins lapsed by reason of the legatee’s death prior to the death of Edward E. Collins, a life tenant, and that as to such six-sixteenths share the testatrix died intestate, and directing the distribution thereof to the heir-at-law of said testatrix.

Ellen M. Collins, the testatrix, died August 26th, 1921. She left a will, the portions of which pertinent to this inquiry are as follows:

“Second. All the residue of my estate, both real and personal and wheresoever situate, I give and devise unto my executor hereinafter named, in trust to and for the following uses and purposes:
“To pay from the income and principal of my said estate such sum of money as may be necessary to secure the proper and comfortable support and maintenance of my aunt, Rose Murray, for and during her lifetime; and at her decease to pay for her funeral and to attend to her burial in my plot in the Immaculate Conception Cemetery in Montclair aforesaid.
“Out of said income and principal to pay to my brother, Edward E. Collins, the sum of fifteen dollarsl [$15.00] per week for his support and maintenance, and the further sum of twenty-five dollars [■$25.00] every six months for his clothing; and at his decease to pay such sum in excess of his life insurance, if any be necessary, for his funeral expenses, and to attend to his burial in my said plot in the Immaculate Conception Cemetery.
“Third. Upon the decease of both my said aunt, Rose Murray, and) my brother, Edward E. Collins, I direct my executor and trustee hereinafter named to distribute my said estate to and among the following persons and objects to whom I give the articles and money hereinafter mentioned.”

Several specific legacies are then, provided for, and this paragraph of the will closes with the following language:

“And to divide the remaining portion of my estate into sixteenths, and to give six-sixteenths thereof each to my nephew, James G. Collins, of New York City, and my cousin, Catherine Fitzpatrick [mee Dunn], of Newark, aforesaid, and four-sixteenths thereof to my sister-in-law, Mrs. James G. Collins, of New York City, aforesaid. In the event that my estate should be insufficient to pay the legacies above provided for, said legacies, and each of them, shall abate proportionately.”

By the last paragraph of the will the First National Bank of Montclair was appointed executor and trustee.

Bose Murrajr, one of the life tenants, died December 15th, 1931.

Catherine Fitzpatrick, one of the residuary legatees, died August 3d, 1933, and prior to Edward E. Collins, the remaining life tenant, who died December 36th, 1933. She died without having had issue, and her will devises all her estate to her husband, T. George Fitzpatrick, the appellant, who claims to be entitled to six-sixteenths of the residue of the estate of Ellen M. Collins, which was devised to Catherine Fitzpatrick. On the other hand, the appellees contend that James G. Collins is entitled to this six-sixteenths share as heir-at-law of the testatrix.

The only question presented by this appeal is whether or not the legacy of six-sixteenths of the residue to Catherine Fitzpatrick was a vested or a contingent one. If vested, T. George Fitzpatrick is now entitled to it under his wife’s will. If contingent, Catherine Fitzpatrick having died prior to the death of one of the life tenants, then Ellen M. Collins would have died intestate as to this share of her estate, and it would go to James G. Collins as her heir-at-law.

According to Blackstone, “vested remainders [or remainders executed where a present interest passes to the party, though to be enjoyed in futuro] are where the estate is invariably fixed, to remain to a determinate person, after the particular estate is spent. Contingent or executory remainders [whereby no present interest passes] are where the estate in remainder is limited to take effect, either to a dubious and uncertain person, or upon a dubious and uncertain event, so that the particular estate may chance to be determined, and the remainder never take effect.” - 2 Bl. (Lewis’ ed.) 169.

As early as 1811 it was held in Fairly v. Kline, 3 N. J. Law 755, per Chief-Justice Kirkpatrick, that—

“If a legacy charged upon the personal estate only be given unconditionally, and dependent upon no further contingency, then, though the day of payment be postponed, as if it be to be paid when the legatee attains the age of twenty-one years, or marries, or other contingency happens, yet if the legatee die before that day, his representative shall take. It is a vested legacy, it cannot fall. But if such legacy be charged upon land in the hands of the heir, and that whether it be the haeres natus or the haeres factus, and the legatee die before the day of payment, it will not go to his representatives, but will merge in the land for the benefit of the heirs. This is the general rule.

“But then there is an exception to this rule, as well settled at this day as the rule itself. It is this, that when the payment is postponed merely for the convenience and benefit of the estate and family, and not on account of considerations relating to the legatee himself, then, though the legatee died before the day of payment, yet the legacy shall not merge for the benefit of the heirs, but shall go to the representative. It is a vested legacy.”

And per Judge Pennington, holding the estate there in controversy to be vested: •

“The bequest is an absolute unqualified present gift, to be paid at a time that must certainly come; the death or marriage of the mother, or as soon after as the land could be sold. It was postponed, not from any circumstance respecting the daughter, but from the situation of the fund, it being until that time employed in the support of her mother.”

In Beatty v. Montgomery, 21 N. J. Eq. 324, it was held that whether or not a legacy is vested or contingent depends upon the event and not upon the time. If the event is uncertain the legacy is contingent, though the time is fixed; if certain, the legacy is vested, though the time is uncertain. Also, that a legacy to A for life, and upon A’s death to B, C and D, is a vested legacy; and if B, C and D die in the lifetime of A, their legal representatives are entitled, upon A’s death, to their respective portions.

In Howell v. Green, 31 N. J. Law 570, Chancellor Green, speaking for the court of errors and appeals, said:

“It it a well-settled rule of construction that a gift of a legacy ‘at,’ or ‘when,’ or ‘after’ a given event occurs, vests only upon the happening of the event. Apart from the context, a gift to the nieces of the testator after the death of their mother would not vest until their mother’s death, and would depend upon the contingency of their surviving her. Where the time is annexed, not to the payment merely, but to the gift itself, the legacy does not vest till the period arrives. Gifford v. Thorn, 1 Stock. 705, 729.

“On the other hand, it is an equally well-settled rule of construction that where an absolute property in a fund is bequeathed in fractional interests in succession, at periods which must arrive, the interests of the first and subsequent takers will vest together.”

And further—

“Where it is apparent from the terms of the will that the future gift is postponed to let in some other interest, the gift is vested.” See, also, Post v. Herbert, 27 N. J. Eq. 540; Clement v. Creveling, 83 N. J. Eq. 318; Sheperd v. Davis, 91 N. J. Eq. 468; In re Buzby, 94 N. J. Eq. 151.

In 23 B. O. L. 528 § 69, the rule is stated as follows:

“If the postponement of the possession and enjoyment is merely for the convenience or benefit of the estate, or to let in some other interest, and not for reasons personal to the remainderman, the remainder is vested; but, if the postponement is annexed to the substance of the remainder and is personal to the remainderman, the remainder is contingent. * * * Thus, under a devise of an estate, legal and equitable, to the testator’s children for life, and to be divided upon or after their death among his grandchildren in fee, the grandchildren living at the death of the testator take a vested remainder at once, subject to open and let in afterborn children.”

In the very recent case of Fidelity Union Trust Co. v. Rowland et al., 99 N. J. Eq. 72, Vice-Chancellor Backes said:

“The gift to the trustee is regarded in equity as a gift to the legatee, and, as the fund vested in the trustee at the death of the testator, so it vested in the legatee, with the immediate use in him of the income; the enjoyment of the principal being postponed until his thirtieth year.”

And held that, although the legatee died before arriving at the age when he would have been entitled to the corpus of the fund, the legacy passed to his administrator on his death.

In determining the question presented by this appeal, the intention of the testator must prevail, and that intention must be gathered from the four comers of the will. All rules of construction are designed to determine that intention and may be totally disregarded where their application would do violence to the plain intent of the testator, as disclosed by the language of the will. No rule of construction can be invariably applied to a certain word formula.

It will be noted that in the second paragraph of this will there is an immediate gift to the trustee in trust, and under the authority of Fidelity Union Trust Co. v. Rowland, supra, the corpus of the fund vested in the trustee at the death of the testator, and also in the residuary legatee at the same time. But disregarding the fact of this gift to the trustee in the second paragraph of the will, it seems to me very clear that the same conclusion is to be arrived at by a consideration of the language of the third clause of the will. By the directions of that clause “upon the decease of both” life tenants, the trustee is directed to distribute amongst said persons “to whom I give the articles and money” to be distributed. This is the language of a present gift, effective upon the death of the testator. The delivery only of the subject of that gift is postponed. “The pajunent is postponed merely for the convenience and benefit of the estate and family, and not on account of considerations relating to the legatee.” Fairly v. Kline, supra. And in the ’ast paragraph of this third clause, it is provided that the executor is “to divide the remaining portion into sixteenths, and to give six-sixteenths,” &c. The words “to give,” as here used, are equivalent to “to hand to,” “to deliver.” The time of the gift is not, as contended by the appellees, “upon the decease of both my said aunt and brother.” That is the time of the distribution. I think it is clearly apparent from the terms of this will that “the future gift is postponed to let in some other interest” (Howell v. Green, supra), and that “an absolute property in a fund is bequeathed in fractional interests in succession, at periods which must arrive.” Ibid.

The event upon which the enjoyment of the legacy of the six-sixteenths interest in the residue of this estate was to begin was the “decease of both my said aunt, Eose Murray, and my brother, Edward E. Collins,” “an event certain to occur, though the time of its occurrence was uncertain. Beatty v. Montgomery, supra.

My conclusion is, therefore, that the bequest of a six-sixteenths interest of the residue to Catherine Fitzpatrick vested immediately on the death of the testator, and that this interest passed to T. George Fitzpatrick, the appellant, by Catherine Fitzpatrick’s will. • I will therefore advise a decree reversing the decree of the Essex county orphans court in so far as the same is brought up by this appeal and in accordance with these conclusions.


source: Caselaw Access Project

license: Public Domain

text:
    In the matter of the estate of Jacob Vanatta, deceased.
    [Decided January 8th, 1926.]
    1. The prime object in construing a will is to arrive at the intention oí the testator, and the same rule is also to he applied to the construction of other instruments.
    2. Where a will gave the testator’s widow the right of election between two alternative provisions of a will, and she does so elect to receive one-half of the property of the testator, she is entitled to one-half interest in stock which was owned by the testator at the time of his death, but not discovered or realized on until long after the widow had been given her one-half of what was apparently the testator’s net estate.
    3. An election under a will is a choice between two or more alternatives, and a power is a liberty or authority reserved by or limited to a person to dispose of real or personal property, and is an authority enabling one person to dispose of the interest in property which is vested in another; held, that under the will here considered the widow was given an election or choice, and not a power of disposition.
    On petition for distribution.

      Mr. Charles A. Raihbun, for the petitioner Prank L. Cooke, administrator cum testamento annexo.

      Messrs. Child, Toimg & Howe, for Mary Werts Perkins.

      Mr. Edward R. McGlynn, for the heirs and next of kin under the will of Julia. M. D. Vanatta.
   Berry, Vice-Ordinary.

The petition in this cause is filed by the administrator cum testamento annexo of the estate of Jacob Vanatta, deceased, and prays for a determination of the proper distributees of the funds of the estate in the hands of the administrator. This involves a construction of the will of Jacob Vanatta, and a contest between the representatives of the residuary legatees and those of his widow with respect to the funds in the hands of the administrator.

Jacob Vanatta died April 20th, 1879, leaving a will, which was duly probated in this court on June 5th, 1879, and of which Alfred Mills was appointed executor. Other provisions of the will pertinent to this inquiry are as follows:

“I give and bequeath to my dear wife, Julia, all of the goods and chattels in and about my dwelling-house and in and about my stable, including horses, harness, carriages, cows and all chattels, but any law books that may be at my house are not included in this bequest.
“All the remainder and residue of my property of every kind I give, devise and bequeath to my executor in trust for the uses and purposes hereinafter expressed, namely—
*’ ‘1. Out of the income of my estate, during the lifetime of my wife, to pay to my sister, Martha, every six months, from the day of my death, the sum of one hundred and twenty-five dollars, and, after the death of my wife, if sister Martha shall survive her, the sum of two hundred and fifty dollars every six months, so long as sister Martha shall live.
“ ‘2. To permit my sister Martha to use, occupy and enjoy, during her natural life, free of rent, my house and lot at Haekettstown, New Jersey, in which she now resides, to pay the taxes assessed on said house and lot and to keep the buildings and fences in reasonable repair without charge to Martha, and at her death to sell and convey said house and lot and make the proceeds thereof a part of my general estate. If at any time during the lifetime of Martha, she shall in writing request my executor to sell and convey said house and lot, he may, if he shall deem it expedient and judicious so to do, sell and convey the same and securely invest the same and pay to sister Martha the net income thereof during her natural life.
“ ‘3. After the payment, or rather subject to the payment of my debts, to transfer to my dear wife, Julia, the equal one-half of all my property, if she shall in writing, in her lifetime, request and direct my executor to make such transfer to her. Her half to be the half of what is left after payment of my debts. The gifts to my wife, hereinbefore given, to be treated as a portion of her half, and what is hereinbefore provided for sister Martha to be treated as a portion of the other half.
“ ‘4. During the lifetime of my wife, after paying my debts and fulfilling the foregoing requirements as to sister Martha, to pay to my wife the whole residue of the income of my estate.
“ '5. To sell,' whenever my wife and my executor shall deem advantageous, any and all of my real estate, except the Haekettstown lot hereinbefore mentioned, and, at wife’s death, to sell all then unsold.
“ ‘6. After the death of my wife, if my brother Joshua be living at her death, to expend in such way as my executor shall deem most beneficial to my said brother, two hundred and fifty dollars a year for and towards his support during Ms natural life.
“ ‘7. Subject to the provisions hereinbefore made, the remainder and residue of my estate shall be divided into three equal shares. One of- those shares to be paid to my brother Henry if he be living, and, if he be dead, to be equally divided among his children as if he had been the owner thereof at his death. One of those shares to be paid to my sister Ellen, the wife of Devi E. Gibbs, if -she be then living, and, if she be dead, to be equally divided among her children as if she had been the owner thereof at her death. The other one of those shares to be paid to each of the children of my sister Mary Werts, deceased, as shall be living at the time of my death, to be equally divided between them, and if any of them shall die after my death, and before the time for distribution and payment shall arrive, then the share of the one so dying shall be disposed of as if he or she had been the owner thereof at the time of his or her death.’ ”

Pursuant to the provisions of numbered paragraph “3” of said will, on July 2d, 1879, the executor and Julia M. D. Vanatta, the widow of the testator, executed and acknowledged a written instrument which, on August 24th, 1881, was recorded as a deed in the Morris county clerk’s office in book Q 10 of deeds, pages 25, &c. A copy of this instrument is as follows:

“Whereas, Jacob Vanatta, of Morristown, New Jersey, deceased, in and by his last will and testament, bearing date the first day of June, in the year eighteen hundred and seventy-one, and proved before the ordinary of the State of New Jersey on the fifth day of June, eighteen hundred and seventy-nine, did give and bequeath to his wife, Julia, all of the goods and chattels in and about his dwelling-house and in and about his stable, including horses, harness, carriages, cow and all chattels, except his law books.
“And did thereafter give, devise and bequeath to Alfred Mills, the executor of said last will, all the remainder and residue of his property of every kind in trust for the uses and purposes in said will thereinafter expressed, and in the recital of said trusts did direct and provide as follows:
“ ‘After the payment, or, rather, subject to the payment of my debts, to transfer to my dear wife, Julia, the equal one-half of all my property, if she shall in writing in her lifetime request and direct my executor to make such transfer to her her half, to be the half of what is left after payment of my debts. The gifts to my wife hereinbefore given to be treated as a portion of her half and what is hereinbefore provided for sister Martha to be treated as a portion of the other half.
“ ‘And whereas, an inventory of the personal property of the said Jacob Vanatta, made by John E. Taylor and Augustus 0. Canfield, has this day been duly proved before the ordinary of the State of New Jersey.
“ ‘And whereas, the said Julia has in writing requested and directed, and does now request and direct, the said executor to transfer to her the equal of one-half of all the property of her late husband, the said Jacob Vanatta, subject to the payment of his debts in accordance with the terms of said trust and with the provisions of said will.
“ ‘Now, therefore, the said Alfred Mills, executor as aforesaid, in pursuance of said íequest and direction of the said Julia, and in pursuance of the power conferred on him by the provisions of said will, and in consideration of one dollar to him paid by said Julia, does grant, bargain, sell, transfer and convey to the said Julia M. D. Vanatta the undivided half of said property, subject to the payments of the debts of said deceased as fully as he is empowered to do so under the terms of said' last will, to have and to hold unto the said Julia M. D. Vanatta, her heirs, executors, administrators and assigns. And the said Julia has made, and now makes, in the said Alfred Mills, executor as aforesaid, her written request and direction for sneh transfer as appears by her signature to these presents.
“ ‘In witness whereof, the said Alfred Mills, executor as aforesaid, and the said Julia M. D. Vanatta, have hereunto set their hands and seals this second day of July, a. d. eighteen hundred and seventy-nine.
“ ‘Axeeed Mills, [l. s.l
‘Executor, &c.
“ ‘Julia M. D. Vanatta. [l. s.]
“ ‘Signed, sealed and delivered in the presence of
“ ‘William E. Chubch.’ ”

An inventory of the personal property of the testator was made and filed in this court and, apparently, the widow received from the executor one-half of all of the property of the testator, after the payment of debts, which had been reduced to the possession of the executor or was considered of any value. The widow, Julia M. D. Vanatta, died July 26th, 1881, leaving a last will in which she appointed the said Alfred Mills her executor, and- which will was duly-probated before the surrogate of the county of Morris on August 24th, 1881.

Subsequent to the settlement of the accounts of the executor of the estate of Jacob Vanatta it was discovered that fifty-shares of stock of the Lehigh and Wilkes-Barre Coal Company, of the par value of $2,500, stood in the name of the testator on the books of that company at the time of his death. (There seems to be some confusion as to the number of shares of this stock. The petition refers to it as fifty shares, one of the briefs as “fifty shares of the par value of $5,500,” another as “twenty-five shares of the par value of $100 per share,” another as “twenty-five shares of stock,” and the account of the petitioner shows a sale of “one hundred shares of common stock and fifty shares of preferred stock.” The inventory is not before me, but it is apparent that the administrator received $30,407.42 from the sale of the stock, whatever the amount may have been.)

It appears that at the time of the death of the testator this stock was practically valueless. It was not inventoried, whether because it was considered worthless or because the-executor did not have knowledge of it does not appear; nor, in the view I take of this case, does it matter. Subsequent to the discovery of this stock, Prank E. Cooke was appointed administrator cum testamento annexo of the estate of Jacob Vanatta, deceased, and as such he has, under the direction of this court, sold the stock for the amount above stated.

The representatives of the residuary legatees under the will of Julia M. D. Vanatta claim a half interest in the proceeds of the sale of that stock, basing their claim upon numbered paragraph “3” of the will, and the instrument executed by the executor and the widow, copy of which appears above.

On the other hand, the representatives of the residuary legatees under the will of Jacob Vanatta claim the entire proceeds of such sale, and assert that Julia M. D. Vanatta never acquired any interest whatever in the stock — first, because, as they claim, the instrument above quoted and which was recorded as a deed purports to* convey and transfer to the widow only a. one-half interest in the property which was mentioned in the inventory; and second, that whatever rights the widow obtained in the property of the testator was pursuant to a “power” given her in the will; that such “power” was not properly or sufficiently executed, and that even if it were properly and sufficiently executed it would be effective only as to the assets of the .testator which were reduced to the possession of the executor in the lifetime of the widow, and that the power cannot be exercised by anyone after her death; that, therefore, the stock not having been discovered or reduced to possession by the executor in the lifetime of the widow, falls into and becomes a part of the residuary estate.

Proctors for the claimant Mary Werts Perkins have filed with the court a voluminous brief in which the subject of powers is ably treated; but this brief seems to have been based upon a misconception of the rights of the widow under the will, and without making a proper distinction between a “power” and an “election.” In my judgment, the right given to the widow under the will is not a power but a right to elect between two alternative provisions of the will. The will provides — first, that the widow is to take, absolutely, certain chattels mentioned in the second paragraph thereof, .together with the income on the whole residue of the estate, subject to certain deductions as provided in numbered paragraph “4;” or, second, the provisions of numbered paragraph “3” of said will, together with the provisions of numbered paragraph “4.” Obviously, the second provision was the more liberal, but the widow had the right, under the will, to choose which of the two provisions she would take, notwithstanding the fact that the second may have, in fact, included practically all she would have received under the first. Clearly, the provisions of this mil for the widow are in the alternative, with a right of election in her.

The primary meaning of the word “election” is choice; the act of choosing. 8 Words & Phr. (1st series) 2880, and cases therein cited. The ordinary meaning of “elect” is to choose between two alternatives. 2 Words & Phr. (2d series) ' 228, and cases therein cited. An “election” is the choice between two or more courses of action, rights or things by one who cannot enjoy the benefit of both. Allis v. Hall, 56 Atl. Rep. 637, 644; 76 Conn. 332; see, also, 2 Underh. Wills § 726; 2 Story Rq. Jur. § 1076.

The term “election” is also used in the sense of indicating a choice between two legacies given to one person by the same will, in which case the testator may express his intention that the legatee shall not have both, but shall elect. Ibid., 1 Pom. Jur. § 895.

On the other hand, “a power” is defined as a liberty or authority reserved by, or limited to, a person to dispose of real or personal property for his own benefit, or for the benefit of others, and operating on an estate or interest, vested either in himself or in some other person, the liberty or authority, however, not being derived out of such estate or interest, but overreaching or superseding it, either wholly or partially. A power has also been defined as an authority enabling one person to dispose of the interest which is vested in another. 21 R. C. L. 772.

A power is also defined in Blach Law Die. 920, as “an authority to do some act in relation to real property, or to the creation or revocation qf an estate therein, or a charge thereon, which the owner, granting or reserving such power, might himself perform for any purpose.” “An authority enabling a person to dispose, through the medium of the statute of uses, of an interest, vested either in himself or in another person.” “An authority expressly reserved to a grantor, or expressly given to another, to be exercised over lands, &c., granted or conveyed at the time of the creation of such power.”

Tn view of these authorities, it seems to be plain that the testator created no “power” in his widow by his will, but that he gave her a right to elect to take either one of two provisions made therein for her benefit, and which I have above indicated.

The prime object in construing a will is to arrive at the intention of the testator. Coffin v. Watson, 78 N. J. Eq. 307; Trustees of Princeton v. Wilson, 78 N. J. Eq. 1; 1 Pom. Eq. Jur. § 395.

The same rule, which is applicable to wills, is also to be applied in the construction of other instruments. Jaqui v. Johnson, 26 N. J. Eq. 325; Sisson v. Donnelly, 36 N. J. Law 439.

Considering that what the testator gave to the widow was a right of election and not a power, this case seems to be free from difficulty. In this view the first question to be decided is whether or not an election was made in compliance with the requirements of the will. I think this question must be answered in the affirmative. While the only evidence indicating that such an election was made is the instrument executed by the executor and the widow, and which was recorded as a deed, this, to my mind, is sufficient. This instrument recited the death of the testator, and quotes paragraph “3” of the will, and recites, also, “and whereas the said Julia has, in writing, requested and directed and does now request and direct the said executor to transfer to her the equal one-half of all the property of her late husband,” &e. This recital is evidence of a prior written request (I Pom. Eq. Jut. § 515), as well as a statement of a then present request. There is a further declaration by the widow herself, near the end of the next paragraph, of a prior request. It is not necessary, however, for me to decide as to whether or not this recital of a past and then present request is sufficient evidence of an election by the widow, because in the next paragraph of that instrument “the said Julia * * * now makes in [on] the said Alfred Mills, executor as aforesaid, her written request and direction for such transfer.” The words “such transfer” refer to the transfer which the ■executor is authorized to make under said paragraph “3.” This paragraph provides that the widow shall, in writing, request and direct the executor to transfer the one-half of the testator’s property to her if she so elects. This instrument, which is recorded as a deed, being signed by both the widow and the executor, in my judgment, is a sufficient compliance with the requirements of the will to effectuate an election by the widow of the benefits of paragraph “3” of the will.

It is contended, however, by proctors for the petitioner and Mary Werts Perkins that irrespective of the sufficiency of the widow’s request the executor transferred, or attempted to transfer, to her only a one-half interest in the personal property enumerated in the inventory. I cannot accede to this proposition. There is no reference whatever in the granting clause of this instrument to any inventory. The only mention of an inventory which appears in the instrument is in the recital preceding the grant, and which recital is in the following words:

“And whereas, an inventory of the personal property of the said Jacob Vanatta by John E. Taylor and Augustus C. Canfield has this day been duly proved before the ordinary of the State of 'New Jersey.”

This recital, to my mind, is mere surplusage, was not necessary to give effect to the grant, and the instrument would have been just as complete without it. It will be noted that in the next following recital the request is directed to “one-half of all the property” of testator. It will also be noted that in the granting clause of this instrument “the executor * * * in pursuance of said request and direction of the said Julia, and in pursuance of a power conferred on him by the provisions of said will * * * does grant, bargain, sell, transfer and convey to the said Julia M. D. Vanatta the undivided half of said property * * * as fully as he is empowered to do so under the terms of said will.” (Italics are mine.) There is in this no reference whatever to the inventoried property. The grant is not restricted to any particular part of the estate, but transfers an undivided one-half interest in the whole. If the contention of proctors for the petitioner and Mary Werts Perkins were correct, then there would have been no transfer of any portion of the testator’s real estate, because the inventory was an inventory of personal property only. In the granting clause of this instrument the property of the testator is referred to as “said property,” and these words undoubtedly refer to the words “all the property of her late husband,” as recited in the paragraph immediately preceding. Also, the grant is expressed to be “as fully as he is empowered to do so under the terms of said last will.” The power given to the executor is a power to convey and transfer one-half of all of the property of the testator subject to debts, and I have no doubt that that was the intention of the executor in executing this instrument.

The words of this grant are in general terms, and, I think, properly so, and, no doubt, purposely. It was undoubtedly the intention of the executor to convey and transfer a one-half interest in the entire estate, and the wisdom of using general terms, instead of particularizing, is now demonstrated. If we should attribute to the executor any other intention, we would, in effect, accuse him of a violation of his trust, of an attempt to withhold from the widow something to which she was entitled, but I cannot find in the language of this instrument any evidence of any intention to do other than the executor was authorized by the will to do, and that as fully and effectually as he was authorized. In my judgment it matters not that the stock, which is the subject of this controversy, was not inventoried, and the reason for the failure to include it in the inventory is immaterial. I am strongly of the opinion that this instrument effectually transferred to the widow a one-half interest in that stock, notwithstanding the rule of law which proctors for petitioner claim was declared by the enactment of the Uniform Transfer act (P. L. 1916 p. 398 § 10; 1 Cum. Supp. p. 692 § 159), to which my attention has been directed. Of course, the stock itself was not transferred, but it was undoubtedly the intention of the executor to transfer a one-half interest in this property as well as all other property of the testator. This is what he ought to have done pursuant to the directions of the will. As “equity regards that as done which ought to be done,” if there is any defect in this attempted transfer of a one-half interest in this stock, it may now be remedied in equity.

Considerable stress is laid upon the point that this stock was not discovered until recently, was not reduced to possession by the executor, and that, therefore, he could not, by this instrument, transfer any title thereto, and that it is now too late for the representatives of the widow to exercise the power with respect to this stock given by the will. I cannot consent to this proposition. It assumes the existence of a “power” rather than a right of election. The title to this stock was just as much in the estate of the testator at the time of his death as it was when it was discovered, irrespective as to whether that discovery was made in the lifetime of the executor or after. The stock being owned by the testator at the time of his death, the title thereto vested in the executor under the terms of the will upon the death of the testator. The right of election of the widow was to take one-half of all of the property and a half interest in this stock was included in her election. There is presented here, therefore, no question of the exercise of a power granted to a donee after the donee’s death.

It is also objected that the instrument, which was executed by the executor and the widow on July 2d, 1879, and which is hereabove recited, was not signed as “trustee,” but merely as “executor,” and that, therefore, he could not transfer any interest in the stock here in question, because it had not been reduced to his possession. The answer to this, it seems to me, is that the will itself directs that the request should be made by the widow to the executor and that the executor should make the transfer; that at the time of the execution of this instrument, which was within about two months after the date of the testator’s death, Alfred Mills was acting as executor. The title to the assets of the estate was at that time in him as executor, and even if this stock had not been reduced to possession (which, to my mind, is not proven in this case), this instrument transferred, at least, an equitable title to a one-half interest in the stock, and that now equity will give effect to the instrument in such a way as to accomplish that which the executor ought to have done. Further than this, it may be said that it appears from a certified copy of this instrument, which was offered in evidence at the hearing and marked Exhibit C-%, that the signature of the executor appears as follows: “Alfred Mills, Executor, &c.” If it were necessary, in order to give effect to this instrument, I apprehend that this court could construe this instrument to have been executed by Alfred Mills as executor and trustee, but, under the circumstances, I do not deem it necessary to decide this point.

I am of the opinion that Julia M. D. Vanatta was entitled in her lifetime to a one-half interest in the stock which is the subject of this controversy, and that now the representatives of the residuary legatees under the will of Jacob Vanatta, deceased, are entitled to a one-half interest in the proceeds of that stock and the representatives of the residuary legatees of the will of Julia M. D. Vanatta are entitled to the other half of the proceeds of the sale of said stock.

I will advise a decree in accordance with these conclusions, and I will hear counsel on the question of the parties entitled to participate in the distribution when settling the form of the decree.


author: Gummere, Chief-Justice.

text:
    Edward Board, complainant-respondent, v. Mary Freedman et al., defendants-appellants.
    [Decided February 1st, 1926.]
    1. A mechanics’ lien claim, filed by a materialman upon separate buildings and upon distinct plots of land, without his apportioning the claim and designating specifically the amount claimed upon each, as required by section 22 of the Mechanics’ Lien law, will be postponed to the claim of other encumbrances. And this rule applies not only where the owner of the property has purchased separate tracts and has erected, or is erecting, separate buildings thereon, but also where be has purchased a single tract and has subsequently divided it into several lots, and has then erected, or is then erecting, separate buildings upon the respective plots.
    2. A mechanics’ lien claim once filed is not amendable, except upon an order made by a justice of the supreme court or a judge of the circuit court, after a hearing had upon notice.

      On appeal from a decree of the court of chancery advised by Vice-Chancellor Ingersoll, whose opinion is reported in 97 N. J. Eq. Jf55.

      Messrs. Gole & Gole, for the appellants.

      Messrs. Thompson & Hanstein and Messrs. Gassman <& GoUlieb, for the respondent.
   The opinion of the court was delivered by

Gummere, Chief-Justice.

The bill in this case was filed for the foreclosure of a purchase-money mortgage given by the defendants, Freedman and Press, to the complainant. The mortgage was executed and delivered in September, 1922. In February, 1923, Freedman and Press sold the mortgaged premises, which consisted of a lot in Atlantic City, forty-five feet in width and one hundred and fifty feet in depth, located on the corner of Atlantic and Metropolitan avenues, to one Martin Miller. Shortly after becoming the owner of the premises, Miller entered into a contract with a concern known as the Bloom Corporation for the erection of three stores, with apartments overhead, upon the Atlantic avenue front, and for the construction of seven dwellings upon the rear portion of said lot, to front upon Metropolitan avenue. While these buildings were in course of erection Miller executed and delivered to one Louis Bloom ten mortgages, each of which embraced a portion of the premises described in the complainant’s mortgage, together with the building then being erected upon such portion. The mortgages, taken together, covered all of the premises involved in the present suit. Three of them, shortly after their delivery to Bloom, were assigned by him to the Atlantic Safe Deposit Company, and the other seven to the Atlantic Mortgage Company. Subsequent to the recording of these ten mortgages the Somers Lumber Company, the Hudson Cement and Supply Company and one Abram Gardner each filed a mechanics’ lien in the office of the county clerk of Atlantic county, covering the whole of the mortgaged premises, the basis of their respective claims being the furnishing of materials used in the construction of the three stores and apartments and the seven dwelling-houses. The holders of the ten mortgages and the above-named mechanics’ lien claimants were made parties to the foreclosure suit, and in due course an order of reference was made to a master to determine the respective rights and priorities of the complainant, the holders of the ten mortgages and the mechanics’ lien claimants, and to report his conclusions to the chancellor. As a result of that hearing, the master reported, among other matters, that the Atlantic Safe Deposit Company and the Atlantic Mortgage Company were entitled to priority in payment over the lien claimants, the Somers Lumber Company, the Hudson Cement and Supply Company and Abram Gardner, because of the failure of the materialmen to make an apportionment of their respective claims among the buildings for the erection of which they had furnished materials. The master’s report was affirmed in this particular, and the several materialmen have appealed from that portion of the decree.

The only question involved in this appeal is whether the master was right in subordinating the liens of the material-men to those of the holders of the ten mortgages, because of the fact that there had been no apportionment by the former of the moneys due for the materials furnished in the erection of these ten buildings. The argument in support of the appeal is that no such apportionment is required by the statute where the buildings are upon a single lot of land. This contention seems to us to be based upon false premises. The fact that when Miller purchased this property it was a single tract, was no bar to his right as owner to divide it into as many separate parcels as he saw fit, and to erect a building upon each of said separate parcels. He made such a division by executing ten separate mortgages, each of them covering so much of the original plot as was occupied by one of the ten buildings then being erected thereon. The provision of section 22 of the Mechanics’ Lien law, which requires that when a materialman has furnished to the owner materials to be used in two or more buildings to be constructed by the same person or persons (that is, by the contractor), he shall divide and apportion his lien among the said buildings in proportion to the value of the materials furnished to each of them, and file with his lien a statement of the amount so apportioned to each building, is mandatory (Culver v. Lieberman, 69 N. J. Law 341), and is applicable to the present case. The purpose of the statute, as is pointed out in the cited case, is to inform all persons who have varied interests in any of such buildings and the curtilage upon which it is (or is being) erected as to the extent to which each of said buildings and curtilages is claimed to be liable to the lien of the materialman — that is, what proportion of the whole amount of the contractor’s debt has been legally apportioned to each of such buildings and curtilages.

Counsel for the appellants further asserts that the statutory provision referred to was, in fact, complied with in the present case. The basis of this assertion is that, at the hearing before the master, each of his clients, by sworn testimony, apportioned its claim among the ten buildings in proportion to the value of the materials furnished to each of them. This, of course, was, in itself, in no sense a compliance with the statute. But he argues that, upon such proof having been submitted, it was the duty of the master to direct an amendment of the several lien claims so as to show such apportionment, and then to have proceeded with the hearing as if the amendments had actually been made. The assertion, in our view, is without foundation of fact, and the contention without legal merit. A lien claim once filed is unamendable except upon an order made by a justice of the supreme court or a judge of the circuit court, after a hearing had upon notice to all parties interested. Amendment to Mechanics’ Lien Law, P. L. 1911 p. Ifl; Supp. Comp. Stai. p. 91/S. The propriety of the action of the master, in refusing to assume jurisdiction over a matter, the determination of which had been vested exclusively in the law courts by the legislature, seems to us apparent, and, consequently, he was entirely justified in holding that there had been no such apportionment of the lien claims as was required by the statute.

Each one of the appellants having failed to apportion its claim as required by section 22 of the Mechanics’ Lien law, the master was right in subordinating their liens to those of the mortgages. In doing so he followed the rule laid down in the case of Morris County Bank v. Rockaway Manufacturing Co., 16 N. J. Eq. 150, 161, viz., that a claim filed upon separate buildings and upon distinct lots of land, without apportioning the claim and designating specifically the amount claimed upon each, must be postponed to the claim of other encumbrances. The soundness of this rule, so far as our examination discloses, has never been criticised in later decisions, and meets with our approval.

The decree under review will be affirmed.

For affirmance — The Chief-Justice, Teenchard, Parker, Minturn, Kalisci-t, Black, Katzenbach, Campbell, Lloyd, White, Gardner; Van Buskirk, McGlennon, Kays, Heteield, JJ. 15.

For reversal — None.


text:
    The Borough of West Long Branch, complainant-respondent, v. John Hoch et al., defendants-appellants.
    [Decided February 1st, 1926.]
    1, Where the fundamental right under which a complainant claims equitable relief is based upon the alleged existence of an easement in lands of another, and the existence thereof is in substantial dispute between the parties, the complainant must first establish by a suit at law the validity of his claim in order to justify the interference of a court of equity.
    2. Counsel cannot by mere silence or by express consent confer upon courts of equity the power to determine litigated matters which, under our judicial system, must be settled in a court of law.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Foster, whose opinion is reported in 99 N. J. Bq. 108.

      Messrs. Hobart & Minará, for the appellants.

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

Gummere, Chief-Justice.

The bill in this case was filed by the borough to restrain the defendants, Hoch and Tilton, from obstructing a certain roadway, which was alleged in the bill to be a public street of the borough. The answer denied that the roadway was a public street, averred that it was a private way belonging to the defendants jointly, and asserted their right to obstruct or close it, as they should see fit. The hearing resulted in favor of the borough, based upon a finding of fact that the way in question was a public and not a private one, and a .decree was entered, as a result of this finding, restraining ■the two defendants from interfering in any way with the user thereof by the public. From this decree the defendants have appealed.

In 3893 one McIntyre, who was then the owner of the fee over which this way was constructed and of the land on each side thereof, laid it out through his property for his own accommodation. It is some two hundred and fifty-two feet in length and extends from a public street in the borough, known as High street, to the property line of an adjoining owner named Lane. Subsequently, McIntyre sold his property in two parcels, divided by the middle line 'of this roadway, the portion lying to the east thereof being sold to a person from whom the defendant Hoeh traces his title, and the part thereof lying on the other side of the line being sold to the defendant Tilton. A considerable amount of testimony was submitted by the borough for the purpose of showing an adverse public user of this way for more than twenty years. The defendants, on the other hand, submitted proofs showing that such use of this roadway as had been enjoyed by the public was permissive, and also that it was not used by the public generally, but only by comparatively few people and for special purposes.

The fundamental dispute between the parties to this litigation is as to the existence or non-existence of a public right in this strip of land, and this dispute is substantial and not merely formal, as an examination of the testimony convincingly shows. It is entirely settled by our decisions that where the fundamental right under which the complainant prays equitable relief is based upon the alleged existence of an easement in lands of another, and the existence thereof is in substantial dispute between the parties, the complainant must first establish by a suit at law thé validity of his claim in order to justify the interference of a court of equity. Imperial Realty Co. v. West Jersey and Seashore Railroad Co., 79 N. J. Eq. 168, and eases there cited; Ostrander v. United New Jersey Railroad and Canal Co., 83 N. J. Eq. 645. The reason for this rule is that the question as to whether or not such an pasement of way exists is a purely legal one, which must be settled in a court of law by the verdict of a jury, and is not determinable by a court of equity.

It is argued that in the present case the rule just adverted to should not be applied, for the reason that the jurisdiction of the court of chancery was not challenged, and that counsel for the defendants consented that the issue of fact should be determined by the vice-chancellor before whom the hearing was had. It is enough to say in disposing of this contention that counsel cannot, by mere silence or by express consent, confer upon courts .of equity the power to determine litigated matters which, under our judicial system, must be fettled in a court of law; or, stated in another way, strip the law courts of jurisdiction conferred' upon them under the constitution and transfer it to courts of equity. If counsel for the defendants had moved to dismiss the bill for lack of jurisdiction in a court of equity, a refusal to grant this ¡motion could not have been legally justified. As no such motion was made, the proper course for the court of chancery to have pursued was to retain the bill until the complainant should have had a reasonable opportunity to establish its title by a suit at law. Todd v. Staats, 60 N. J. Eq. 507; Mason v. Ross, 77 N. J. Eq. 527.

.The decree under review will be reversed, and the record ¡remitted to the court of chancery, with instructions to retain the bill until the complainant has been afforded a reasonable opportunity to establish in a court of law the validity of its claim that the alleged way is in fact a public highway.

For affirmance — None.

For reversal — The Chief-Justice, Trenchard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Yan Buskirk, McGlennon, Kays, Hetfield, JJ. 15.


author: Trenchard, J.

text:
    Frank J. Bock and Edward H. Wright, receivers of the New Jersey Refrigerating Company, complainants-respondents, v. John Koch, defendant-appellant.
    [Submitted October 31st, 1925.
    Decided February 1st, 1926.]
    1. A purchaser of real property is chargeable with notice of such facts affecting the title as may be ascertained by reference to the chain of title of such property as spread forth upon the public records.
    2. In New Jersey, where titles to real estate are of record, it is the duty of a purchaser, in the absence of any special agreement, to search the public records for himself, and to make a complete examination of such records for such information as they may contain regarding the validity of the title of the real estate he would purchase; and in a suit against the purchaser for specific performance of his contract for the purchase of real estate, the fact that the premises had become dilapidated and diminished in value by the time the answer was filed and during the period in which the purchaser was refusing or neglecting to perform and the vendor was endeavoring to satisfy the purchaser’s misgivings as to the title, cannot 'excuse the purchaser from specific performance, when it appears that a complete search of the public records, which he had ample time to make before the time fixed for closing title, but did not make until about the time his answer was filed, would have disclosed a perfect title at all times.
    On appeal from an order of the court of chancery advised by Vice-Chancellor Church.

      Messrs. Sullivan & Meehan (Mr. Thomas F. Meehan, of counsel), for the appellant.

      Mr. J. Henry Harrison, for the respondents.
   The opinion of the court was delivered by

Trenchard, J.

This is an appeal from an order that the answer be stricken out and that complainants’ bill be taken as confessed and their proofs taken ex parte.

The bill was filed by the receivers of the New Jersey Refrigerating Company to compel the defendant, „John Koch, to specifically perform a contract which the bill avers he entered) into in writing on June 13th, 1924, for the purchase of certain real estate in the city of Jersey City. The bill further avers that the sale was reported by the receivers to the court of chancery and the same was confirmed by an order dated June 24th, 1924; that the contract provided that the purchase price was to be $26,000, that $750 was paid on execution of the agreement, $7,250 was to be paid on delivery of the deed, and $18,000 was to be in the form of a bond of the purchaser secured by a mortgage; that the deed was to be one of bargain and sale, conveying the premises free from all encumbrances; that the date fixed for closing was August 1st, 1924 (later postponed to October 17th, 1924, apparently by mutual consent); that on October 17th, 1924, the complainants tendered the deed to defendant, and requested the execution of the bond and mortgage and the payment of the balance of the purchase-money, all of which the defendant refused.

The answer admits, in effect, as we think, the essential allegations of the bill, among others, the execution of the contract, and the tender of “a deed to said premises drawn in accordance with the terms of said agreement, and that complainants presented to the defendant a bond and mortgage drawn in accordance with said agreement, and requested this defendant to execute them, and also requested the defendant to pay the balance in cash due to the complainants,” and that the defendant “neglected and refused to pay over the balance of cash due in accordance with said agreement, and to execute and deliver to the complainants the bond and mortgage for a part of the. purchase price for said premises as provided for in said agreement.” But the answer further avers, in effect, that after the defendant signed the contract he hired a title searcher to search the title, who advised him to refuse to take it, reporting to him that the property was encumbered by ground rent, and that Joseph D. Gallagher and Harry E. Richards had title to or. an interest in the property through a deed and mortgage both executed by Jeremiah Lorenzo Haley and Mary Lavinia Haley, and that these constituted a cloud upon the title. However, the answer does not aver that, in fact, the title was unmarketable at any time, but, on the contrary, admits, in effect, that a subsequent and complete examination of the public records disclosed that such alleged defects did not exist in point of fact; that the alleged ground rent encumbrance was found to have been released in the year 1827; that Jeremiah Lorenzo Haley and Mary Lavinia Haley never had any title to or interest in the property, and that, consequently, nothing passed to Gallagher and Richards by such deed and mortgage, for the reasons given in Haley v. Goodheart; 58 N. J. Eq. 368; affirmed, 72 N. J. Eq. 953, a suit brought in 1899 to settle that question, and which did settle it finally by the affirmance of the decree by this court. The answer, in effect, admits that the alleged defects were thus explained, and could have been explained at any time by a diligent and complete examination of the public records. This, therefore, is not a case where specific performance may be refused because of alleged defects in the vendor’s title in the absence of full statement and proofs of the title as in Cornell v. Andrus, 36 N. J. Eq. 321, nor where the title depends for its validity upon information which is not fully presented to the court, as in Paulmier v. Howland, 49 N. J. Eq. 364 the present case it appears that the court below, when it made the order complained of, had before it a proper bill for specific performance to which an answer had been filed, which failed to set up any defects in the title of the lands in question, or any basis upon which the marketability of the title could be questioned.

But the answer further avers, in effect (and this is the defense upon which the defendant really relies), that by the time the answer was filed (January 31st, 1925), and during the period in which the defendant was refusing ox neglecting to perforin, and the complainants were endeavoring to satisfy his misgivings as to the title, the premises had become dilapidated and diminished in value, and that, therefore, he should not be required to specifically perform his contract.

We think that contention is unsound.

A purchaser of real property is chargeable with notice of such facts affecting the title as may be ascertained by reference to the chain of title of such property as spread forth upon the public records. Mitchell v. D’Olier, 68 N. J. Law 375; Den v. McKnight, 11 N. J. Law 385, 393.

In a jurisdiction such as this, where titles to real estate are of record, it is the duty of a purchaser, in the absence of any special agreement, to search the public records for himself, and to make a complete examination of such records for such information as they may contain regarding the validity of the title of the real estate he would purchase. Espy v. Anderson, 14 Pa. St. 308; Carry. Roach (N. Y.), 2 Duer 20; Symns v. Cutter, 9 Kans. App. 210; Easton v. Montgomery, 90 Cal. 307; Bolton v. Branch, 22 Ark. 435; see, also, Thomp. Til. Real Prop. 29, and Warv. Abs. (4th ed.) 11. That this defendant-purchaser, in effect, admits he delayed doing until about the time he filed his answer. And we think that, the fact that the premises contracted for had become dilapidated and diminished in value by the time the answer was filed and during the period in which the defendant was refusing or neglecting to perform and the vendor was endeavoring to satisfy his misgivings as to the title, cannot excuse the defendant from specific performance, when, as here, it appears that a complete search of the public records, which he had ample time to make before the time fixed for closing title, but did not make until about the time his answer was filed, would have disclosed a perfect title at all times.

The order of the court below will be affirmed, with costs.

For affirmance — The Chief-Justice, Trenchard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Yan Buskirk, McGlennon, Kays, Hetfield, JJ. 15.

For reversal — None.


author: Parker, J.

text:
    In the matter of a paper-writing purporting to be the last will and testament of Charles Sutterlin, Sr., deceased.
    [Submitted October 30th, 1925.
    Decided February 1, 1926.]
    1. The statute of 1851 {Rev. 1877 p. 121/7; Comp. Stat. p. 5867 pi. 24) requires that the signature of a will “shall be made by the testator, or the making thereof acknowledged by him, and such writing declared to be his last will, in presence of two witnesses present at the same time,'who shall subscribe their names thereto, as witnesses, in the .presence of the testator.” Held, that these requirements are not satisfied by testator signing the will in the presence of one witness, who then signs as witness, and acknowledging the signature in the presence of both witnesses after the second has come into the presence of testator, and by the second witness then signing as such. The signature of the first witness cannot relate forward to the acknowledgment made after it was affixed.
    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. 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 irz-eeoneilable with its verity, Following (in this respect), Mmidy v. Mtmdy, 15 N. J. Bq. 290, as cited in Bioren v. Nesler, 77 N. J. Bq. 562.

      4. Whether a statement by testator- to a witness, “this is my will and I want you to sign it,” amounts to an acknowledgment of his signature pz-eviously affixed to the will, qucere.

    On appeal from a decree of tbe prerogative court advised by Yice-Chancellor Learning, whose opinion is reported in 98 N. J. Fq. 807.

      Mr. Joseph H. Carr, for the appellant-caveator.

      Mr. Grover C. Richmm, for the respondents.
   The opinion of the court was delivered by

Parker, J.

We concur in the finding of facts appearing in the opinion of the learned vice-ordinary, and shall not take time to repeat them at length. He properly found that testator signed the paper-and declared it to be his will in the presence of one witness, and that that witness then signed as such in presence of deceased; that thereafter, and while deceased and the first witness were still together, the second witness came in, deceased exhibited the paper to him, said it was his will, and asked him to witness it, and he thereupon subscribed the attestation clause as witness, in presence of deceased and of the first witness.

Assuming for present purposes without deciding, as intimated in the court below, that a declaration by the deceased, “'this is my will and I want you to witness it,” imports an acknowledgment of his signature previously, made, the situation was this: Deceased had signed the paper and declared it as his will in the presence of one witness, who then subscribed as such; he had declared the paper as his will (and on the above hypothesis), had acknowledged signature thereto in the presence of both witnesses, one of whom had previously signed, the other of whom then signed.

This was not a compliance with that clause of the Wills act of 1851 (P. L. p. 218; Rem. 1877 p. 121ft; Gomp. Stat. p. 5867 pi. 21f), which requires that the “signature shall be made by the testator or the making thereof acknowledged by him, and such -writing declared to be his last will, in the presence of two witnesses present at the same time, who shall subscribe their names thereto, as witnesses, in the presence of the testator.” The statute requires one of two tilings: (a) That the .two witnesses shall be present when the will is signed and published, and thereafter subscribe their names; or (b) that the two witnesses- shall be present when the signature is acknowledged and the will published, and thereafter subscribe their names.

Neither of these conditions obtained in the present case; one witness attested the actual signature, the other attested the acknowledgment of that signature.

In Mundy v. Mundy, 15 N. J. Eq. 290, Chancellor Williamson, sitting as ordinary, expressed the view on page 294, obiter, as afterwards held, that “the particular order of the several requisites to the valid execution of a testament is not at all material.” This was followed by Chancellor Magie, as ordinary, in Lacey v, Dobbs, 61 N. J. Eq. 575. On appeal to this court, 68 N. J. Eq. 825, the proposition enunciated by Chancellor Williamson was definitely overruled, and the specific rule laid down that “it is essential to validity that everything required to be done by the testator shall precede in point of time the subscription of the witnesses.” This result was reached with due regard to the principle of sta/re decisis (at p. 826) and propounded in a most careful and learned opinion by Mr. Justice Collins, a leader of the bar before, and for many years after, his term of judicial service. It was followed and approved in Bioren v. Nesler, 77 N. J. Eq. 560, also in this court.

In neither of these cases were the facts precisely on all fours with those in the case at.bar. In Lacey v. Dobbs the witnesses signed before the testator; in Bioren v. Nesler the signature of testator was neither made nor acknowledged in presence of the witnesses. But the rule in Lacey v. Dobbs, as stated by this court, has stood unchallenged as the law of this state, and a careful examination of the opinion of Mr. Justice Collins will demonstrate that it is founded on both reason and authority. Two cases arising under the English statute of 1837 (which was almost identical with our own, and is set out in the opinion) are so strikingly similar on the facts that it is worth while to reproduce here the portions of the opinion relating to them. The first is Moore v. King, 3 Curt. 243, a decision by Sir Herbert Jenner-Eust. We copy from the opinion in Lacey v. Dobbs, supra:

“These were the facts: The testator signed the draft of his will in the presence of his sister, who subscribed her name as a witness. On the next day he acknowledged his signature in her presence and in the presence of another person, to whom the sister pointed out her signature, and wbx>' then subscribed as a witness. The will was held invalid for lack of conformity to the statute. * * * The judge said: ‘1 clearly find that the object of this act is to remove every possible doubt, thereby taking away all latitude and discretion in its interpretation.’ He declared his opinion that The act is not complied with unless both witnesses shall attest and subscribe after the testator’s signature shall have been made or acknowledged to them when both are actually present at the same time.’ He pointed out that the alternative of acknowledgment of the testator’s signature, expressly given by the act, precludes any implication that the witnesses might acknowledge their signatures previously made.”

The other case is Hindmarsh v. Charlton, 8 H. L. C. 160, affirming Sir Cresswell Cresswell, in the court of probate and divorce. Further extracting from Lacey v. Dolls, supra:

“Briefly stated, the case was this: Hindmarsh produced to Dr. Wilson, a surgeon attending him in illness, a paper-writing, which he then signed and said was his will, and asked the surgeon to subscribe as a witness. Dr. Wilson wrote, 'witness to the above will and testament, and signature,’ and signed his name, inadvertently omitting to cross a capital F, so that it stood as a T. Later in the day Dr. White, the physician in regular attendance, called, and there was a medical consultation. Dr. Wilson had previously told Hindmarsh that there ought to be another witness to the will, and after the consultation both doctors went into the sick room, taking it with them. Hindmarsh then acknowledged his signature and Dr. White subscribed Ms name as a witness. Dr. Wilson, noticing that the F in Ms name lacked a cross, supplied one, and, at Dr. White’s suggestion, added the date. It was held that in order to' comply with the statute, The signature or acknowledgment of the testator must be made in the presence of two witnesses, present at the time, and they must, after he has so signed, or so acknowledged, his signature, subscribe the will in his presence/ and that a correction of an error in the previous writing of the name of a witness, or Ms acknowledgment of his signature, or the adding of a date will not be sufficient.” (Italics ours.)

Applying the rule in Lacey v. Dobbs, based on the eminent authorities above cited and others abstracted and cited in that case, it follows that in order that the will be valid in point of execution and attestation it is necessary that the testator either sign in the presence of two witnesses present at the same time, and that they both thereafter subscribe as witnesses in the presence of the testator; or that the testator, having previously signed the will, acknowledge his signature in the presence of two witnesses present* at the same time, and that they both thereafter subscribe as witnesses. In both cases, of course, the paper must be declared as a will.

These conditions were not met in this case. One witness was present at the actual signature and signed as witness. This by itself was, of course, nugatory. He was also present with the other witness at an acknowledgment of the signature, but did not thereafter sign. This is not enough. Under the rule laid down in the cases, the prior signature of the first witness cannot relate forward to an act occurring after it was affixed.

We said at the outset that the vice-ordinary had correctly found the facts. On this point the briefed argument for respondent requires some notice. Stress is laid, and properly so, on the existence of an attestation clause, perfect on on its face, and certifying to facts which, if correctly certified, demonstrate a legal execution and publication of the will. The case is simply one of flat contradiction of the clause by the testimony of both witnesses. The vice-ordinary evidently considered that the probative force of the attestation clause had been overcome. In the earlier decisions, the rule laid down was that the attestation clause was prima facie proof of the truth of the statements contained therein. Remsen v. Brinckerhof, 26 Wend. 325; Mundy v. Mundy, supra; Tap-pen v. Davidson, 27 N. J. Eq. 459; Allaire v. Allaire, 37 N. J. Law 312; 39 N. J. Law 113; Mandeville v. Parker, 31 N. J. Eq. 242, 248; Turnure v. Turnure, SB N. J. Eq. 437, 440; McCurdy v. Neall, 42 N. J. Eq. 333; Elkinton v. Brick, 44 N. J. Eq. 154, 166; Farley v. Farley, 50 N. J. Eq. 434, 439; Darnell v. Buzby, 50 N. J. Eq. 725. Later, in the prerogative court, the rule was strengthened to the extent of saying that the presumption arising from the clause was impregnable unless overcome by strong and convincing evidence. Berdan’s Case, 65 N. J. Eq. 681; Bloom v. Terwilliger, 78 N. J. Eq. 221; Seymour's Will, 114 Atl. Rep. 799; though such presumption may be overcome by testimony, even by that of the subscribing witnesses. Berdan's Case, ubi supra; Manners’ Case, 72 N. J. Eq. 854. In Cahagom’s Case, 82 N. J. Eq. 601, no more than an ordinary presumption was intimated. So far as shown by the researches of counsel, the rule has not been so strongly stated in this court, though in Veazey’s Case, 80 N. J. Eq. 466, we adopted an opinion of Judge Joline in the orphans court, quoting McCurdy v. Neall, supra. But in Bioren v. Nesler, supra, we definitely1 adopted the rule as laid down in Mundy v. Mundy, 15 N. J. Eq. 290 (at pp. 562, 563).

Whether the stronger or weaker presumption applies is of little moment in the present case. Both subscribing witnesses testified, fifteen months after the will was signed, consistently and positively, to the state of facts as found by the vice-ordinary and abstracted at the outset of this opinion. Any presumption arising from the attestation clause was therefore fully overcome.

These considerations lead to a reversal of the decree of the prerogative court, with directions that probate of the paper propounded be denied.

For affirmance — Miktueh, Kalisch, Black, JJ. 3.

For reversal — The Chief Justice, Tbehchaed, Parkee, Katzenbach, Campbell, Lloyd, Gardneb, Yah Buskikk, McGLEisnsroisr, Kays, Heteield, JJ. 11.


author: Minturn, J.

text:
    Augusta Kessler et al., complainants-appellants, v. Edward C. Sheldon et al., defendants-respondents.
    [Sulbmitted October term, 1925.
    Decided February 1st, 1926.]
    1. In a suit to secure the delivery of a deed or establish its existence, testimony that a former employe of the estate of the alleged grantor admitted that he had seen the alleged deed was properly excluded although the employe had previously testified that no such instrument existed, there being nothing to show that the employe represented the estate.
    • 2. Where nine years had elapsed since the youngest child of the alleged grantee had attained majority, and a much longer period since his widow was ousted, and the property had greatly increased in value, and been conveyed to tona fide purchasers, a suit to establish the existence of a deed or procure its delivery is barred by inexcusable laches,, and evidence tending to prove the existence of such deed is irrelevant.
    On appeal from a decree of the court of chancery.

      Mr. John W. Ockford, for the complainants.

      Messrs. Stuhr & Vogt, for the defendant Andrews.

      Mr. Theodore Burode, for the defendant Hagan.

      Mr. William F-. Burke, for the defendant Schrader.
   The opinion of the court was delivered by

Minturn, J.

The bill was filed by the widow and children, heirs-at-law of Stephen Kessler, deceased, to secure the delivery of a deed of conveyance, or to establish the existence thereof, as a lost or suppressed instrument. The learned vice-chancellor, after hearing the testimony, dismissed the bill. The only question presented by the appeal is whether the court properly excluded testimony offered in behalf of complainants. The locus in quo consisted of three vacant lots on Central avenue, in Jersey City, originally the property of the estate of William B. Ogden. Kessler assumed possession of the premises under an alleged contract of purchase, executed about July 1st, 1885, from the Ogden estate, after which he built a store and other buildings thereon, and resided there until his death, at which time he left a will, and a widow and children, who together with an administrator cum testamento annexo, constitute the complainants in the bill of complaint.

It is alleged that Kessler, upon the strength of his agreement entered into possession of the locus, spent money upon its improvement, and made various payments totaling $10,000 upon the purchase price. The widow occupied the premises pntil 1897, when she was ousted as the result of proceedings in an action in ejectment, brought against her alone, by the executors of the Ogden estate. Shortly thereafter the executors conveyed the premises to one Schrader, whose heirs, in 1922, conveyed a portion of the locus to one Hagan, who, with the Schrader heirs, constitute the present owners, and the defendants herein. The title to the locus, manifestly, was settled by the result of the ejectment suit, and neither the widow of Kessler nor his heirs-at-law attempted to vindicate their claim thereafter in any legal or equitable forum until this bill was filed.

The question presented upon this appeal is one of evidence, since no proof whatever was offered to evince the existence of any formal contract between Kessler and the Ogden estate, or to show that he ever paid anything upon the purchase price, or that he paid taxes or other public assessments upon the property; and the conspicuous facts presents itself that more than nine years were allowed to elapse after the youngest of the Kessler children became of age before the present bill was filed. Since the period of the alleged purchase in 1898 the property has risen in value by steady graduations from $7,500 to $36,000 in 1914, when the youngest Kessler heir .became of age, until 1933, when the bill was filed, and the property following the upward trend of the times had assumed the phenomenal valuation of $110,000, which doubtless gave to it a quality of inherent desirability, which it theretofore never possessed. Stephen Kessler, Jr., one of the Kessler heirs, as well as a complainant herein, was asked at the trial as to a conversation he had with one Andrews, who ,was also a defendant in the suit, having at one period been identified as an employe of the Ogden estate. The purpose of the inquiry was to elicit testimony to show that Andrews had admitted in a conversation with the witness that he had seen the alleged contract and a deed, between the deceased Kessler and the Ogden estate, and that as a fact such legal instrumnts were at one time in existence. Its ultimate effect would also have been to contradict Andrews, who had already testified .that no such instrument existed. Assuming that he made such a statement it is not perceived in what manner it could establish the existence of the facts sought to be proved, in .order to establish the fundamental allegations of the bill, since Andrews, by any admission he might make, could not jfind the Ogden estate as it was not shown that he represented it or was identified as a party in interest in its holding, so as to bind it by admissions against interest. At most, therefore, it assumes the character of testimony which was essentially hearsay and therefore inadmissible to charge the Ogden estate. But the inadmissibility of the testimony is conspicuously apparent when it is recalled that regardless of its character and the source from which it emanates these complainants, by reason of laches in the assertion of their right, under the alleged contract and deed, occupy no legal or equitable status to avail themselves of its use or to profit by its relevancy.

Eor at least nine years after the youngest child of the deceased Kessler had attained majority, and for a much longer period since the action in ejectment against the mother had Settled adversely at least to her the rights of the Ogden estate as owners in fee of the locus in quo, the complainants remained idle and inactive, apparently, content with the legal status thus established, and only after many years had passed and when the Ogden estate had by mesne conveyances transferred their legal title to the present owners, who occupy the status of bona fide purchasers, and at a period when the present value of the property made its acquisition a prize in the real estate world, did they file their hill to assert their present claim.

The equitable rule under such circumstances, based upon well-settled principles of public policy, has been immutably established that such claims are barred by the inexcusable ,remissness of those who, when reasonable opportunity presented itself, failed and neglected to assert them. Vigilantibus non dormientibus equitas subvenient. Hendrickson v. Hendrickson, 42 N. J. Eq. 657; Industrial Savings, &c., Co. v. Plummer, 84 N. J. Eq. 187; 10 R. C. L. 395, and cases; 21 C. J. 193, and cases.

It thus becomes manifest that conceding to the proffered testimony all the evidential efficacy which the complainants claim for it, its irrelevancy must be conceded when the fallacy underlying the complainants’ claim of title is made apparent.

The decree appealed from will, therefore, be affirmed.

For affirmance — The Chiee-Justice, Trenchard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Yah Buskirk, McGlennon, Kays, Heteield, JJ. 15.

For reversal — None.


author: Kalisch, J.

text:
    Marguerite E. B. Hart, petitioner-appellant, v. Francis Hart, defendant-respondent.
    [Submitted October term, 1925.
    Decided February 1st, 1926.]
    A petitioner for divorce under P. L. 1983 p. 1/94, must not file the petit-ion “until after six months from the date of the last act of cruelty complained of” was committed, but it is immaterial whether or not the parties continue to live under the same roof till a later date, the time of separation of the parties not being the essential starting point of the right of action under this statute, for as much as it expressly declares that the date on which the last act of cruelty complained of was committed shall be the time from which the six months shall commence to run.
    On an appeal from a decree advised by Vice-Chancellor Church.

      Mr. William, V. Azzoli> for the appellant.

      Messrs. Pomerehne, Laible .& Kautz (Mr. Harry Pomerehne, on the brief), for the respondent.
   The opinion of the court was delivered by

Kalisch, J.

The petitioner filed her petition in the court of chancery alleging three grounds for absolute divorce from her husband, namely, desertion, adultery and cruelty. The two former causes were abandoned at the trial, though there was cogent testimony tending to establish adultery of the husband, but it appearing that the petitioner cohabited with him after having knowledge of his offense, this, as a matter of course, condoned the offense and precluded her from succeeding on that charge. The vice-chancellor held that there was not sufficient convincing evidence that the petitioner was entitled to a divorce under the Blackwell act, and for that reason dismissed her petition, and hence this appeal. We think the vice-chancellor erred in refusing the petitioner a divorce on the ground of cruelty. This becomes apparent, not only from a review of the testimony in the case, but from the reasons which he gives underlying his refusal to grant the divorce. In disposing of the case, and, after stating that the desertion and adultery charges had apparently been abandoned, he says: “The question now is, whether or not the alleged cruelties come under the provision of the Blackwell act. If the wife left the husband on January the 14th, 1924, after the last act of cruelty, the proper six months has expired. If she left later, the case must fail. She alleged that they separated on January 14th, 1924; he says March 17th, 1924. The only corroboration is that of the landlord, who says that he saw the man going and coming from the house during February, he is positive of, and he thinks March, but he is not positive of it.

"'There is not sufficient testimony to convince me that the petitioner is entitled to a divorce under the Blackwell act, and I deny the petition.”

The vice-chancellor obviously erred in the construction he gave to the Blackwell act, which provides: “Divorce from the bond of matrimony may be decreed for extreme cruelty in either of the parties, whether the acts of cruelty were committed prior to or after the passage of this act; provided, that no petition for divorce shall be filed until after six months from the date of the last act of cruelty complained of.”

It is to be observed that there is nothing in the act which precludes the offended party from obtaining a divorce because he or she may be living under the same roof; the only limitation that the statute imposes is that no petition for divorce shall be filed until after six months from the date of the last act of cruelty. The vice-chancellor proceeded upon the theory that the time of separation between husband and wife was the essential starting point from which the six months after the last act of cruelty must be calculated, which view is in clear contradiction of the express language of the statute. The statute fixes the right of a petitioner to file a petition for divorce six months from the date of the last act of cruelty complained of. This manifestly for the benefit of the injured party. It is left entirely to the free determination of the injured party whether or not to submit a continuation of the domestic relation or to sever it. The right to a divorce, however, is complete and fixed at the time of the last act of cruelty.

Erom the testimony it appears that the last act of cruelty complained of was committed on January 14th, 1924, and the petition for divorce was filed on July 22d, 1924, six months and eight days thereafter. Eor the respondent it is further argued that the testimony on behalf of the petitioner is without corroboration, and fails to show that the husband was guilty of acts of extreme cruelty. Neither contention possesses any merit. The testimony of the petitioner, as to the cruel conduct of her husband, was corroborated in the main by her two sons, Erancis and Raymond, aged fifteen and twelve years, respectively, each testifying that he saw his father, the defendant, have his hand upon his mother’s throat and bump her head against the wall, and also by the petitioner’s mother, who testified that she saw the black marks and scratches upon her daughter’s throat. There was other testimony in the cause tending to show that the conduct of the defendant toward his wife was brutish and indecent.

The decree of the court of chancery dismissing the petitioner’s petition is reversed, with the direction that a decree be made divorcing the petitioner from her husband, pursuant to the statute in such case made and provided.

For affirmance — None.

For reversal — The Chief-Justice, Trenchard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskirk, MoGlennon, Kays, Hetfield, JJ. 15.


text:
    Celia Sobel, petitioner-respondent, v. Alexander Sobel, defendant-appellant.
    [Argued October term, 1925.
    Decided March 26th, 1926.]
    1. A decree nisi in a divorce suit is a conditional divorce, becoming absolute only upon the happening of a prescribed contingency.
    2. The marriage relation is a status governed by a declared state policy, and one of the principal duties arising out of the marital tie is the duty of the husband to provide suitable support and maintenance for his wife, and this duty does not arise out of any contract between husband and wife to that end, but out of a state policy, recognized and enforced by the civil and common law.
    3. Where a release from all claims whatever was given by a wife to her husband after a decree nisi, but before a decree final in a divorce suit, and such release and settlement was not made under the sanction of the court, such release does not bar the allowance of alimony to the wife where the provisions of the contract between them are not adequate for her support.
    On appeal from an order of the court of chancery, for permanent alimony, advised by Vice-Chancellor Bentley.

      Messrs. Weinberger & Weinberger (Mr. Harry H. Weinberger, of counsel), for the appellant.

      Mr. John A. Platoff, for the respondent.
   The opinion of the court was delivered by

Kalisch, J.

This is an appeal from an order made by Vice-Chancellor Bentley, that the appellant shall pay to the petitioner or to her solicitor the annual sum of $1,200, in monthly installments of $100 each, on the first day of each month thereafter, commencing on April 1st, 1925, and that he pay costs and a counsel fee of $350. The appellant and petitioner were married on November 3d, 1907. On the 23d day of January, 1922, they were divorced, and in the decree application for alimony was reserved. At the time of the decree nisi and for a long time prior thereto, the husband was paying to the petitioner, irregularly, $5 a week for her support, by virtue of an order made by Recorder Young, of the city of Paterson, where the petitioner and defendant resided. It does not appear that any alimony pendente lite was applied for in the divorce proceedings. After the decree nisi and during its pendency negotiations were entered into between husband and wife, eventuating in the execution of a general release, by the wife, upon the payment to her of $6,000, by her husband, releasing him, “his heirs, &c., of and from all and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts reckoning, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims and demands whatsoever, in law or in equity which against Alexander L. Sobel I ever had, now have or which my heirs, &c., hereafter can, shall or may have for, upon or by reason of any matter, cause or thing whatsoever from the beginning of the world to the day of the date of these presents.”

The release appears to have been executed on the second day of February, 1922, about ten days from the date of the decree nisi. It is this general release which the appellant interposed, as a bar, in the court below, to the application for permanent alimony. From the testimony taken upon the application it appeared that the consideration of the release was the sum of $6,000 paid by the appellant to the respondent, and it is without question that she accepted that sum in full discharge of the husband from any further claim upon him, arising out of the marital status, which, at the time the settlement was made, had not been finally dissolved.

The testimony further disclosed that the respondent had used up the money given to her by the appellant in discharging old debts and in providing for her and her children’s subsistence, and that she was without means, and that the appellant was in easy and flourishing circumstances. It is apparent from a clear reading of sections 20 and 21 (2 Comp. Stat. p. 2035) that a decree nisi does not sever the bonds of matrimony, but that the marital tie between husband and wife still subsists until after the expiration of six months from the entry of such decree and a decree absolute is entered. Markowitz v. Marlcowitz, 94 N. J. Eq. 23. Although Chancellor Walker does not so declare in express terms, in Iris opinion in the case, it is the only reasonable inference to be drawn from what he decided. In Grant v. Grant, 84 N. J. Eq. 81, Vice-Chancellor Lewis (at p. 84) says: “A decree nisi is a conditional divorce, becoming absolute only upon the happening of a prescribed contingency. 14 Cyc. 711. Such a contingency in oxir state is the non-showing of cause why the decree should not be made absolute.” This seems to be a proper characterization of the nature of a decree nisi. In Fox v. Davis, 113 Mass. 255, the court (at pp. 258, 259) said: "A divorce nisi under Comp. Stat. 1870 ch. 404, does not sever the bonds of matrimony, and she is still a married woman.” Edgerly v. Edgerly, 112 Mass. 53. See, also, Sparhawk v. Sparhawk, 114 Mass. 355.

The rights of the litigants must, therefore, be considered and determined from the standpoint of the existence of the marital ties at the time the release was given by the wife to her husband, and in the light that such settlement was intended to be in full of all her claims, &c., against her husband that she then had and in the future might have. Another essential factor which must be kept in mind and considered in determining the legal effect to be given to the settlement made between husband and wife is that the marriage relation is a status governed by a declared state policy, and, hence, the state, for the conduction of the public welfare, is largely concerned in carrying out its legislative policy. One of the principal duties arising out of the marital tie is the duty of the husband to provide suitable support and maintenance for his wife.

This is a common law duty arising out of the status of wedlock. The obligation to support and maintain the wife does not arise out of any contract between husband and wife to that end, but out of a state- policy, recognized and enforced by the civil and common law.

In Calame v. Calame, 25 N. J. Eq. 548, Chief-Justice Beasley, speaking for this court, with his characteristic perspicacity, points out (at ¶. 552) that though “the general rule is clear that at common law a contract made between married persons will not be binding either in equity or in a court of law,” nevertheless, this rule was not absolutely inflexible, for on some occasions it would bend in favor of equities. The learned jurist then proceeds to demonstrate that in settlements made which were for the wife’s benefit and welfare, courts of equity invariably gave their aid to enforce the provisions of such settlements. He, however, reached the conclusion that the court of chancery was without power to award alimony in gross. It is to be particularly noted that this allowance of alimony in gross was objected to by the husband. The question whether the court of chancery has power under the statute to allow alimony in gross against the consent of the husband is not before us. Galame v. Galame, supra, decides that the court is without such power. And the facts of the instant case do not present the' question. The question here raised is as to the.legal effect of the settlement made between the parties out of court.

A different situation might have arisen in the present case if the settlement arrived at between the parties had received the sanction of the court. There seems to be no good and sufficient reason why alimony in gross may not be allowed and enforced when assented to by the parties, and the court of chancery, as the representative of the state, to guard its interest and to enforce its statutory policy, in relation to marriage and divorce, sanctions such a course. It has already been observed that a court of equity will enforce a provision of a contract made in favor of the wife, and Calame v. Calame, supra, illustrates the view that where such a provision has been made by the husband, it will be enforced in a court of equity.

The learned author of the opinion makes it quite clear that the prime question is whether or not the provisions for the wife are found to be suitable, after the court has looked into the arrangements and their surroundings. It is therefore in the light of the principle enunciated by this distinguished jurist and applied in that case that no substantial distinction can be drawn between the exercise of the power of the court of equity to decree the enforcement of a provision of a contract between husband and wife, which provision is for her benefit, and found to be adequate for her support, and the exercise of such power by the court, where it appears that the parties have agreed upon a settlement as to permanent alimony for the future support of the wife and submitted the same to the court for approval, and the court, after due investigation, finds the provision for the support of the wife to be adequate, to make a decree accordingly. In the instant case, no such course was followed. The court, however, inquired into the circumstances of the litigants, and under the evidence found that the provision made for the wife’s support was inadequate and that she was in needy circumstances, and, therefore, the court very properly made the order for permanent alimony.

The order appealed from is affirmed, with costs.

For affirmance — The Chief-Justice, Trenchard, Parker, Mintuen, Kalisch, Black, Katzenbach, Campbell, Gardner, McGlennon, Kays, Hetfield, JJ. 12.

For reversal — None.