text:
    Asbury Park and Sea Girt Railway Company et al. v. Township Committee of the Township of Neptune et al.
    [Submitted August 16th, 1907.
    Decided September 19th, 1907.]
    1. A traction company acquiring the road and franchises of another company at a mortgage foreclosure sale thereof is bound by the restrictions and conditions contained in an ordinance granting such other company a location for its tracks, though the company so purchasing did not expressly assume them.
    2. A street railway company incorporated under P. L. 1886 p'. 185, providing for the incorporation of street railway companies and their regulation, and which on application, pursuant to P. L. 1889 p. 100, providing for a petition to a township by a company incorporated under such laws for a location of its tracks, has been granted permission to lay its tracks along a certain route through the township, derives its right to be a railway company and to occupy streets with its tracks from the legislature, and the only authority given to the township is to grant or refuse a “location” for the tracks, which, when once granted, exhausts its power, and the township cannot thereafter interfere with any rights conferred by the legislature.
    3. Where a street railway company incorporated under P. L. 1886 p. 185, providing for the incorporation of street railway companies and the regulation of the same, made application to a township to lay its tracks along a certain route, pursuant to P. L. 1889 p. 100, and an ordinance was passed granting such location, subject to certain conditions, on ac'ceptance of such ordinance by the company, it constituted a valid contract, and its provisions could not be impaired by either party without the consent of the other, and hence it was not competent for the township to revoke such ordinance without consent of the company and remove its tracks.
    4. Where a street railway company incorporated under P. L. 1886 p. 185, providing for the incorporation of street railway companies and their regulation, on application pursuant to P. L. 1889 p. 100, has been granted permission to lay its tracks along a certain route on condition that it pay annually a certain per cent, of its gross receipts to the township, and under such provision has laid its tracts, the repeal of the ordinance granting such permission and consequent removal of the company’s tracks, on the ground that it has failed to perform its agreement as to payment, may be enjoined on condition that the company account to the township for the compensation provided for.
    5. A bill having been filed to enjoin a township from repealing an ordinance granting a street railway company a location for its tracks and their removal, a cross-bill was filed by the township, demanding that the company account as to compensation required by the ordinance granting such location to be made annually to the township. — Held, that the cross-bill- was not subject to the objection that it sought a legal remedy only, since, though a cross-bill filed against a co-defendant must rest on considerations of equity, a more liberal rule applies as to a cross-bill filed against complainant.
    C. A cross-bill in a suit to restrain the repeal of an ordinance granting a street railway company a location for its tracks and their removal, demanding an accounting as to compensation required by the ordinance to be made by the company for such location, is not subject to the objection that it introduces matters not within the scope of the original suit.
    7. A cross-bill by a township to recover of a street railway company compensation required of it for a location for its tracks by the ordinance granting such location is barred as to compensation accruing more than six years before the date of the filing of the bill.
    8. A street railway company was granted a location for its tracks through a township, the route being two and twenty-three hundredths miles in length, on condition that it pay to the township annually five per cent, of its gross receipts. At that time the township claimed jurisdiction over the whole distance, but thereafter, when an accounting was sought as to such compensation, only forty-two hundredths of a mile of the railway lay within the township’s boundaries. Before accounting the company, desiring to lay a double track through two boroughs, which at the time of the grant were embraced in such township, agreed to pay to each of them annually certain amounts, and at the time of accounting and previous thereto the two and twenty-three hundredths miles of track of such company had been operated in connection with another road, their total mileage being six and ninety hundredths miles, but the receipts of the two roads were not kept separate.' — Held, on an accounting for such compensation, that the township should be compensated on the basis of the entire two and twenty-three hundredths miles, and that the amount on which the township’s percentage should be calculated was that amount which bore the same proportion to the total receipts as two and twenty-three hundredths miles to six and ninety hundredths miles, or two hundred and twenty-three six hundred ninetieths of the total receipts, from which should be deducted payments theretofore made to the township and payments made to the boroughs.
    On final hearing on bill, answer, replication and proofs.

      Mr. Frank Durand, and Mr. Charles II. Ivins, for the complainants.

      Mr. Samuel A. Patterson, for the defendants.
   Howell, V. C.

The Asbury Park and Belmar Street Railway Company was incorporated in December, 1892, under the provisions of a law entitled “An act to provide for the incorporation of street railway companies and to regulate the same,” approved April 6th, 1886. P. L. 1886 p. 185. The incorporation was accomplished by the execution of a certificate of incorporation and the filing of the same in the office of the secretary of state. Among other things mentioned in this certificate are the duration of the company’s existence, one hundred years, and the route over which it expected to lay its tracks and conduct its business. This certificate was filed in the office of the secretary of state on January 6th, 1893; on the following day the corporation applied to the township of Neptune for permission to lay its tracks and construct its road along the route described in its certificate of incorporation. The application was made in pursuance of the provisions of a supplement to, the act above recited, which is found in P. L. 1W& p. W\0'. This supplement provided for a petition to the township committee by the directors of any company incorporated under the above-cited act (P. L. W8& p. W\5) for a location of the tracks of its railway conformably to the route designated in the articles of incorporation and for a public hearing and notice thereof, after which the committee should either reject the application or grant it under such lawful restrictions as they might deem the interests of the public required. The act then goes on to declare that the location thus granted shall be deemed and taken to be the true location of the tracks of the railway if an acceptance thereof in writing by the directors shall be filed with the secretary of state within thirty days after receiving notice thereof and a copy thereof delivered to the clerk of the municipality.

A copy of the ordinance which was passed by the township of Neptune, on the application of the street railway company, is in evidence. It is the foundation of the complainants’ right. It locates the railway company’s tracks on the route prescribed by the certificate of incorporation, subject to certain conditions and restrictions, among which is one providing for compensation to the township for the use of the streets, in the following words:

“4. That the location and franchise hereby granted shall be for the term of fifty years from and after the date of the adoption and passage of this resolution and ordinance; that in consideration of the grant of location and franchise herein made, and in consideration of the use for street railway purposes by said company of the portion of said street or public highway, subject to the control of said committee and as a compensation therefor, said company shall, on the second day in January, a. d. eighteen hundred and ninety-seven, and on the second Monday of January in each year thereafter, pay to the treasurer of said committee for the use of said township a sum of money equal in every instance to five per centum of the gross receipts from all the business of the said company for the year preceding each date of payment above specified.”

The company agrees to submit its books to the township committee and.furnish statements of its business at all reasonable times. The permission is for the period of fifty years; at the end of that time there is a provision for the purchase of the tracks and other fixtures by the township.

The ordinance was accepted by the railway company in March, 1893, in the manner required by the statute and by the ordinance itself, and the company began the construction of the street railway over the line designated in the certificate of incorporation and the ordinance.

This route, as described, extends from Wesley lake bridge, at the head of Wesley lake, to the southerly line of Neptune township, a distance of two and twenty-three hundredths miles. That is the distance which the township of Neptune claimed the right to control.

The Asbury Park and Belmar Street Eailway Company mortgaged its road and franchises to secure an indebtedness. This mortgage was foreclosed and at the sale under the decree the property and franchises were purchased by trustees for the mortgage creditors, who, on May 23d, 1898, transferred the same to the Asbury Park and Sea Girt Eailroad Company which had been incorporated to take over the property, assets and franchises that had been so sold. In this way the Asbury Park and Sea Girt Eailroad Company came into possession of the franchise granted by Neptune township and the company still claims to own and hold the right so originally granted. As a matter of law the company is bound by the restrictions and conditions contained in the said ordinance even though it did not expressly assume them. Rutherford v. Hudson River Traction Co., 73 N. J. Law (44 Vr.) 227. It is one of the complainants in this suit.

On August 27th, 1898, the Asbury Park and Sea Girt Eailroad Company made a lease of all its property and franchises to the Atlantic Coast Electric Eailroad Company. This company got into financial difficulties and all its property rights and franchises, including its right in the said lease, were sold by E. S. Atwater, special master, appointed by the United States circuit court for the district of New Jersey, and on December 27th, 1905, were conveyed to the Atlantic Coast Electric Eailway Company. This latter company is the other complainant in this suit.

The Atlantic Coast Electric Railway Company now owns or controls a continuous line of electric railway extending from Sea G-irt on the south, to Pleasure Bay on the north, a distance of about sixteen miles, of which the line in question in this suit forms an integral and important part.

When the Atlantic Coast Electric Railroad Company became embarrassed in its finances, James Smith, Jr., was appointed receiver by the United States circuit court for the district of New Jersey. It would appear that all the franchise fees accruing to Neptune township, under the ordinance of 1893 up to January, 1897, had been paid and satisfied. When the 1897 pajonent matured counsel for the township applied to the court to compel its payment by the receiver. The court made an order on December 9th, 1897, directing the receiver to pay to the township the '“sum of $-100 in full settlement of said claim so due the said petitioner orr the 1st day of January, 1897.” From that time to the present the receiver and the Atlantic Coast Railway Company successively have annually, in January, paid to the treasurer of the township the sum of $400, for which the treasurer has given receipt. It does not appear that there was ever any agreement on the part of the township committee to accept $400 in full of the five per cent, annual pa3nnents. The minutes of the committee show no action whatever on the subject.

In the spring of 1907 the township committee passed a resolution calling on the complainants and the Asbury Park and Sea Girt Street Railway Company to appear before the township committee on March 25th, 1907, to show cause why the compensation provided for in the ordinance of 1893 should not be paid to the township, and why that ordinance should not be revoked and repealed for failure of the several companies to comply with its conditions and the company’s tracks, plant and cars removed from the street. The complainants construed this into a clear threat on the part of the township committee to destroy a valuable and indispensable part of their line of railway, and at once filed their bill against the township of Neptune and the members of the township committee, praying that they might be enjoined from revoking or repealing the ordinance of 1893, and from removing the railway tracks from the street in which they were laid.

The complainants allege in their bill that in some way unknown to them the original requirement that they should pay to the township five per cent, of their gross receipts annually, was commuted into an annual payment of $400, and that this amount had been fully paid; that hence there was nothing due to the township and it therefore had no right to take the impending action. The defendants answering jointly deny that there was ever any change in the amount of compensation or its method of computation, and claim by a cross-bill that the complainants must account to the township in respect of the compensation in the manner contemplated by the ordinance of 1893. On this branch of the case my judgment must be for the defendants. It is very clear, to my mind, that there has never been any change in or alteration or modification of the original ordinance of 1893, so far as the provision for compensation to the township is concerned. The statement in the complainants’ pleadings that there had been such change was not supported by any proofs; this, together with the absence of any record of such an important act from the minutes of Hie township committee, would seem conclusive. Therefore, unless there are countervailing facts the complainants must at some time and in some court account to the township and pay whatever may be found due, in accordance with the provisions of the ordinance of 1893.

Before enlarging on this idea, it will be convenient to take up and discuss another branch of the case — that relating to the power of this court to enjoin municipal corporations in the exercise of the powers conferred upon them by the legislature.

The first case in New Jersey in which the question seems to have been mooted is Bond v. City of Newark, 19 N. J. Eq. (4 C. E. gr.) 376. It was there held by Chancellor Zabriskie that the legislative acts or exercise of discretionary powers by municipal corporations, however unwise or impolitic, or even when done from corrupt motives or for unworthy purposes, are beyond the control of the courts, but when, the corporation has fulfilled its legislative functions and has exercised its legislative discretion the courts have the power and should interfere to control the acts of municipal corporations and their officers in the exercise of powers not legislative or discretionary.

Vice-Chancellor Dodd followed this ruling in Schumm v. Seymour, 24 N. J. Eq. (19 C. E. Gr.) 143.

In Paterson and Passaic Horse Railroad Co. v. Mayor and Aldermen of the City of Paterson, 24 N. J. Eq. (9 C. E. Gr.) 158, the city of Paterson and certain of the defendants threatened to tear up and remove the complainants’ railway tracks in Colt street. The city of Paterson had given its consent to the railroad company to construct its railway in that street and it subsequently threatened to pass an ordinance repealing the ordinance wffiieh gave the permission, the company having in the meantime acted upon the permissive .ordinance and built its road. There was some suggestion that the consent had been obtained fraudulently but this charge of misrepresentation the'chaneellor found to be baseless. He enjoined the city from revoking the ordinance and refused to dissolve the injunction on the ground that not only had the proper consents of the property owners been obtained but that relying thereon the street railway company had expended its money and built its railway, and that the defendants had, for a long time, acquiesced in the occupation of the street by the complainants with their railway.

Vice-Chancellor Van Fleet, in the case of Cape May, &c., Railroad Co. v. City of Cape May, 35 N. J. Eq. (8 Stew.) 419, applied the doctrine to a case very much like the present one. There the city of Cape May had authorized the complainants to construct a horse railroad through certain streets of the city and the complainants, under the authority thus given proceeded to construct the road. When it was nearly completed an ordinance was introduced into the common council, the purpose of which was to repeal portions of the prior ordinance and to revoke the authority given to the complainants to use these streets in the construction of their road. This ordinance had been read a second time and was about to be put on its third reading and submitted to a final vote. The complainants sought an injunction to restrain the council from passing it. The vice-chancellor denied the injunction, but on the ground that it was not averred or shown that the city authorities intended, in the event of the passage of the repealing ordinance, to order the tracks of the complainants removed or to tear them up. That is precisely what is threatened in this ease. The complainants here were ordered to show cause before the township committee why their tracks should not be removed from the streets, and the case is a direct authority, under the facts, for the interference of this court with its injunctive powers.

The same principle was followed in Hudson Telephone Co. v. Jersey City, 49 N. J. Law (20 Vr.) 303. In that case the common council had designated the streets in which the telephone company might place its poles. After it had placed a large number of poles at considerable expense the common council passed an ordinance repealing the former permission. The supreme court held that the repealing ordinance was void and in the opinion cites two cases as authority for the proposition that the common council of the city has no right to revoke its permission given by statutory authority to the location of a railroad in the streets. The cases cited are People’s Passenger Railway Co. v. Baldwin, 37 Leg. Int. 424; Brooklyn Central Railroad, Co. v. Brooklyn City Railroad Co., 32 Barb. 358.

And see Phillipsburg Electric Co. v. Phillipsburg, 66 N. J. Law (37 Vr.) 505, and cases cited.

I apprehend that the true ground is that the relation between the street railway company and the township is one of contract and that by virtue of the contract and the expenditure of money in pursuance of its terms the street railway company has obtained a vested right which is coterminous with the rights given to it by the legislature and by the ordinance. The court may, in its discretion, in a proper case by its injunctive power, prevent any attempt on the part of the municipal corporation to violate the contract. The doctrine is well illustrated by the case of Citizens’ Street Railroad Co. v. City Railway Co., 56 Fed. Rep. 746; S. C. on appeal, 166 U. S. 557. And it was held in Cleveland City Railway Co. v. Cleveland, 94 Fed. Rep. 385, that the federal circuit court would enjoin the passage of a city ordinance which impairs the contract rights of a street railway company or deprives it of its property without due process of law, and this, upon the ground that city ordinances making grants of franchises to street railway companies on specified conditions when accepted by the companies, constitute contracts which cannot be annulled or amended except by consent of both parties and are protected from impairment by the federal constitution.

In American Water Works Co. v. Home Water Co., 115 Fed. Rep. 178, it was held that if the action of the city is based upon legislative authority to grant a franchise and to enter into contracts with the parties for the erection and use of public utilities, to grant the use of the public streets and charge for the use of its privileges, then the action of the city council is legislative, as one of the subordinate agencies of the state, and the deprivation of rights once granted without legal cause or without due process of law is within the constitutional prohibition, and upon such allegations a federal court has jurisdiction of the cause regardless of the citizenship of the parties. See Jersey City v. Harrison, 71 N. J. Law (42 Vr.) 69.

Again, the street railway company derives its right to be a railway company and to occupy the streets with its tracks from the legislature and not from the municipality. The only authority given to the township is to grant a “location” of the tracks over the route designated in the certificate of incorporation, or to refuse to make the grant. When once made, however, the municipality has exhausted its power and may not take further action. Hudson Telephone Co. v. Jersey City, supra. The street railway company is then in possession of the land covered by its tracks under legislative sanction and not by virtue of municipal authority except in so far as the municipal body had consented to the mere location of the tracks, and it will hardly be argued that the township committee can interfere with the legislative grant or with any rights that are conferred by legislative authority.

This argument leads to the conclusion that the ordinance of 1893 is a valid contract between the township and the street railway company, and that the binding force of its provisions cannot be impaired by either party without the consent of the other. In fact, the relation between them imposed upon them, respectively, reciprocal duties. It was not competent, therefore, for the township to violate its part of the contract in the manner proposed nor could the street railway company abandon the performance of its duties as a public carrier of passengers. Bridgeton v. Bridgeton and Millville Traction Co., 62 N. J. Law (33 Vr.) 592.

The threat made by the township in its notice to the street railway is a threat that it intends to violate its contract.

The situation appeals with much force to a court of equity. To permit the repeal of the ordinance in question and the consequent removal of the tracks, would destroy a valuable property which the public have an interest in preserving as one of the public utilities of the state. And'the violation of the complainants’ rights should be enjoined if it can be so done as to work out an equitable result, and this, I think, is quite possible.

The township alleges that the complainant owes to it a large amount of money, being the compensation provided for in the ordinance of 1893; that the annual payments of $400 which the complainant and its predecessors have made are only partial payments, and that it cannot ascertain the correct amount because the complainant has not furnished the statements of its business as agreed, and it prays for an accounting by its cross-bill. This accounting I am inclined to advise, but I am met by the proposition advanced by the complainant that the cross-bill seeks a legal remedy only and it demurs to the cross-bill accordingly, on the ground that it lacks equity to support it. While it is true that a cross-bill filed against a co-defendant must rest on considerations of equity, a different and more liberal rule applies when the cross-bill is filed against the complainant. In such case the cross-bill is strictly a mode of defence, and as against the complainant the defendant may use all the weapons within his reach. 2 Dam. Ch. Pr. 1549; Mitford Eq. Pl. 81, 99; Ship. Eq. Pl. 406. All the cases cited on this point in the complainants’ brief are cases relating to original bills.

An answer is a shield, not a weapon. It replies to the complainants’ equities. The cross-bill, while in aid of a defence, is also a mode of attack along lines which are necessary for a full defence and a complete adjudication of all the disputes that arise out of a transaction or series of transactions.

Again, it is argued on the part of the complainants that the cross-bill cannot be entertained for the reason that it introduces into the ease matters which are not within the scope of the original suit.

The basis of the original suit is the ordinance of 1893. This confers a right on the complainants and gives compensation to the grantor as a consideration. The provision for compensation is in the nature of a covenant on the part of the street railway company that it will pay a money consideration for the grant. It resembles a case of interdependent covenants. Both the complainants’ and defendants’ causes of action arise out of the same instrument and are referable to what I have spoken of as interdependent covenants. 1 see no reason why the whole subject-matter should not be dealt with in one suit. Beck v. Beck, 43 N. J. Eq. (16 Stew.) 39; Harrison v. Harrison, 46 N. J. Eq. (1 Dick.) 75.

The complainants should be awarded an injunction to prevent the township from interfering with or imperilling their rights under the ordinance of 1893, but upon condition that they account to the township in respect of the compensation provided for therein.

It only remains to determine the principles on which the account will be taken.

In the first place, it cannot extend beyond six years from the date of the filing of the bill. This is in consonance with the rule which would be applied if the township had pursued its common-law remedy. Executor of Wanamaker v. Van Buskirk, 1 N. J. Eq. (Sax.) 691; Cowart v. Perrine, 18 N. J. Eq. (3 C. E. Gr.) 454; Arnett v. Finney, 41 N. J. Eq. (14 Stew.) 147.

In Metropolitan Railroad Co. v. District of Columbia, 132 U. S. 1, it was held that the District of Columbia was a municipal corporation and that an action by it to recover from a street railroad company the cost of maintaining pavements in a street, which the company is by its charter bound to maintain, was not an action upon the Statute but one in assumpsit, and the statute of limitations applied to it.

And in Commissioners v. Buckner, 48 Fed. Rep. 533, it was held that the rule that statutes of limitation do not run against the state does not apply in favor of a city in virtue of the governmental power exercised by it in respect to a claim of the city against the United States for taxes alleged to have been illegally collected. Wood Lim. § 58.

At the hearing it was urged on the part of the complainants that the Asbury Park and Sea Girt Street Eailway Company was bound to pay the compensation provided for in the ordinance of 1893, on the basis of the mileage of the road lying within the limits of Neptune township only. The total length of the route described in the ordinance is two and twenty-three hundredths miles and at the time of the passage of the ordinance Neptune township claimed jurisdiction over the whole of this distance. At the present time, however, only forty-two hundredths of a mile of the railway Ees within the boundaries of that township.

At the time of the passage of the ordinance of 1893, the arrangement of the municipalities in question was this: Neptune township was in existence. It embraced the two boroughs of Neptune City and Avon, both of which were also in existence; the remaining borough of Bradley Beach having not yet been formed.

Later, when the complainants wished to lay double tracks through. Neptune City and Avon, they agreed to pay a compensation to each of these boroughs as follows: To Neptune City, $275 annually, and to Avon, $350 annually. These payments are, therefore, for territory which was embraced in the original ordinance of 1893 and for which the railway company engaged to pay the township of Neptune. It was therefore cláimed that the payment should be apportioned between Neptune township and the other municipalities, or that the amounts paid and payable by the street railway company to these other municipalities should be deducted from any amounts which might be payable for the whole two and twenty-three hundredths miles.

The ordinance on this point is explicit and clear. The company, by its acceptance thereof, agreed to “pay to the treasurer of said committee for the use of said township a sum equal in every instance to five per centum of the gross receipts from all the business of said company for the year preceding each date of payment.”

Here is a contract which needs neither construction nor interpretation. The company has agreed to pay a percentage of its gross receipts from all its business, and although it may be that the company has made a hard bargain, yet the court can hardly be asked to make a new one for the parties.

I therefore think that the computation must be made upon the basis of the total receipts of the company from its railway business in the first instance, but subject to such deductions as are hereinafter mentioned.

The length of the road from Asbury Park to Sea Girt is six and ninety hundredths miles. The Asbury Park and Sea Girt Street Railway' Company owns two and twenty-three hundredths miles and the Sea Coast Traction Company four and sixty-seven hundredths miles of this distance. The railway over this whole distance is operated as a single line. There has been no separation of the receipts of the Sea Girt Traction Company from those of the Asbury Park and Sea Girt Street Railway Company. In ascertaining the amount on which the defendants’ compensation should be calculated the total receipts of the line from Asbury Park to Belmar should be apportioned on a mileage basis between the two distances above mentioned for the various years over which the accounting shall extend, apportioning to the As-bury Park and Sea Girt Street Railway Company two hundred and twenty-three six hundred ninetieths of the receipts for the several years. This will give the total receipts of the company on which the percentage will be calculated.

When the amount payable under the ordinance shall have been ascertained by this method of calculation it will be reduced by certain items which I now mention. The first will be the payment of $100, which has been annually made by the railway companies to the treasurer of the township of Neptune. There should likewise be deducted the annual payments which have been made by the railway companies to the boroughs of Avon and Neptune City. This is conceded by counsel for the defendants in their brief, on the ground that it is justice and equity — a recognition of the rule that as parties to a suit in equity they are required to conform to equitable principles.

I will advise a decree in accordance with these conclusions.


source: Caselaw Access Project

author: Magee, Ordinary.

license: Public Domain

text:
    In the matter of the application of Hilda Hastendenbeck, administratrix of Rika Ross, for an accounting by the executrix of Theodore S. Doolittle, deceased.
    [Argued March 13th, 1907.
    Decided May 21st, 1907.]
    1. A legatee is a person interested within the provisions of section 116 of the Orphans Court act (P. L. 1898 p. 75), authorizing any person interested in the estate, in case of failure to make settlement, to cite the executor, administrator, guardian or trustee to make such settlement in case of such default.
    2. At the coming in of a citation issued pursuant to said section, an executrix cannot evade the duty of accounting for her testator’s estate by setting up payments to herself by way of bills for medical attendance upon the legatee, and for her funeral and burial expenses paid by said executrix, and for care, nursing, attendance, board and lodging furnished to the legatee.
    3. Such a proceeding is not within the third section of said statute conferring jurisdiction upon the orphans court in suits for the recovery of legacies, but is a simple claim for an accounting from an executrix by a legatee who had not been shown to have receipted or released her legacy.
    On appeal from an order of the Middlesex county orphans court.

      Mr. Freeman Woodbridge, for the appellant.

      Mr. Theodore B. Booraem, for the respondent.
   Magee, Ordinary.

The appellant, the administratrix ■ of Rika Ross, cited the executrix of Theodore S. Doolittle, deceased, to show cause why she should not render an account as executrix of the estate of the deceased.

By the will of Theodore S. Doolittle there was bequeathed to Rika Ross the sum of $500, and the rest and residue of the estate of the deceased was devised and bequeathed to the executrix of the will.

By section 116 of the revised Orphans Court act of 1898 (P. L. J898 ¶. 757), any person interested in the estate may cite the executrix to make a settlement • of the estate at the ensuing term of the orphans court. A legatee is a person interested, within this provision.

At the coining in of the citation the executrix appeared by counsel and objected to being compelled to account and settle the estate.

. If, upon such appearance, the executrix, whn was entitled to all the personal estate of the testator after the payment of debts and legacies, had shown that she had recorded in the surrogate’s office of the county of Middlesex, in which her letters testamentary were granted, a full release, receipt and discharge from the legatee entitled to the specific legacy the executrix would have been exonerated from the duty of accounting and settling the estate, unless the court had expressly ordered her so to do. Section 120, Orphans Court act of 1898. P. L. 1898 p. 759.

No such release or receipt was exhibited, but the executrix was permitted to put in evidence certain bills for medical attendance upon the said legatee and for her funeral and burial expenses, paid by the said executrix, and also a claim for care, nursing, attendance, board and lodging furnished to the said legatee during her lifetime, and thereupon the orphans court found that the moneys paid out and expended by the executrix were a just and proper charge against the estate of Eika Eoss and should be a charge against the legacy so given to Eika Eoss.

The orphans court further found that after the deduction of the amount of said claims from the total amount of the legacy, calculating interest on each, there was a balance due to the administratrix of the legatee from said executrix amounting to $67.07 and that that sum was tendered to the administratrix of the legatee in full settlement of the legacy, which tender the administratrix refused to accept in full settlement thereof. It was thereupon ordered that the application of the administratrix for an accounting by the executrix of Theodore S. Doolittle should be, and was, denied.

By the third section of the revised Orphans Court act of 1898 (P. L. 1898 p. 716) jurisdiction was conferred upon the orphans court in suits for the recovery of legacies. This proceeding before the orphans court was not of that character. It was a simple claim for an accounting from an executrix by the personal representative of the legatee who had not been shown to- have receipted or released her legacy.

It is unnecessary to express any opinion on the question whether, in a suit upon a legacy, any claim by the executrix of the testator, for her personal care of the legatee, or for payments made in behalf of the legatee in the way of medical attendance or services, could be set off against the demand for the legacy. It is sufficient to say that in- the proceeding before the orphans court there was no question, respecting such claims involved. The sole question was whether the executrix should account for the estate of her deceased testator, and she’ was not entitled to evade that duty by setting up payments thus made, and which, in the whole, did not discharge the legacy.

It results that the orphans court erred in denying the application oi the personal representative of the deceased legatee.

The decree appealed from should be reversed, and a decree made that the executrix should account for the estate of the deceased testator.


author: Magie, Ordinary.

text:
    William H. Skillman, appellant, v. Mary J. Lanehart et al., respondents.
    [Argued February 6th, 1907.
    Decided June 1st, 1907.]
    In a proceeding to probate a will, evidence examined, and held insufficient to establish the genuineness of the signature.
    On appeal from a decree of the orphans court of Somerset county.

      Messrs. Glarh & Case, for the appellant.

      Mr. Nelson Y. Dungan and Mr. James L. Griggs, for the respondents.
   Magie, Ordinary.

A paper writing, purporting to be the last will and testament of William Lanehart, deceased, was offered to the surrogate of Somerset county and admitted to probate by him. No caveat had then been filed against its admission by any heir-at-law or next of lrin.

Appeals to the orphans court of Somerset county from the decree of the surrogate admitting the paper writing to probate were afterward taken by heirs-at-law and next of kin of the deceased and by an executor named in another paper writing alleged to be the last will of the deceased. These appeals came on for hearing before the orphans court, and after talcing a large- amount of testimony orally and by commission that court reached the conclusion that the paper writing in question was not the last will and testament of the deceased William Lane-hart. It thereupon revoked the decree, of the surrogate and refused to admit to probate the paper writing as the will of William Lanehart.

The appeal to this court is prosecuted by William H. Skill-man, named as executor in the paper writing which was refused probate.'

In considering the voluminous testimony that has been taken and presented to this court by the transcript, it is not improper to call attention to two facts which are undisputed.

In the first place, the alleged testator had executed a previous will, in which he recognized the claims of brothers and sisters, especially of one sister of whom he seems to have been particularly fond. This will had been left by the testator with the cashier of a bank, in which he kept his deposit, among his other papers of value, and it appears that he had frequently since the time the disputed writing is claimed to have been made, examined those papers and had them in his possession, and that he had not withdrawn from the possession o'f the cashier, or destroyed or canceled, the will that was among them.

In the second place, the disputed writing ignores entirely the brothers and sisters of the testator (he having left no descendants), and after some small legacies leaves all the residuum of his estate to be divided between “the lady known as Laura Kellogg, my niece,” and William H. Skillman, who drew the paper.

This paper was not only drawn by William H. Skillman, but the claim is that it was executed -by the testator and published as his will in the house of William H. Skillman, in the presence of William H. Skillman, his son Jeremiah Skillman, who was one of the attesting witnesses, another son, Edmund, who was not an attesting witness, his daughter, Elva, who was not an attesting witness, and William H. Ely, who was an attesting witness and the friend of William H. Skillman, who oilers the will for probate.

Where the person who drafts a will which bestows upon him a substantial part of the testator’s estate, procures its execution in his own family, with no other witnesses present except one who, the evidence discloses, is his intimate friend, the court in which probate of such a will is sought, ought to be cautious and careful in its examination of the facts and in its determination that it was the free act of the testator. This is particularly so when he who drafts the will is not related to or connected with the alleged testator and there is no proof of such a degree of intimacy as would render it apparently natural that he should pass over the claims of near relatives, with whom he was on terms of affection, in favor of the scrivener. The alleged will was written upon two sides of a leaf of foolscap paper, which had been severed from the sheet to which it was previously connected. The writing commences at the upper side of the leaf and continues to the bottom. The leaf has then been reversed and turned over, and the writing is continued on the other side of it, and concludes on the very last line of that side of the leaf. The alleged signature is written at the bottom, in the space which is as usual not marked with lines.

The attestation clause, which is perfect in form, is written at the top of another leaf of foolscap' paper also severed from its connection with the sheet and is signed by the attesting witnesses at its foot.

The weight of the evidence renders it clear that there was no physical conne'etion between the two leaves at the time the attestation clause was signed. There was no connection infer-able from any continuity in the expressions of the will as would have happened if the bequests and devises appearing on the first leaf had been continued upon the top of the second leaf, on which the attestation clause was written. It is, however, testified to by those present at the alleged execution that the attestation clause had been written and was lying on the desk upon which the alleged will was signed, at the time of such signing. There is some indication from the evidence that it had been attached thereto at some time by a pin, but that it was not so attached at the time of the signature is clear, because the signature could not have been made if the paper was attached as indicated by the pinholes.

I deem it unnecessary to decide in this case whether an attestation clause entirely disconnected from the testamentary disposition and signature will support the probate of a will thus attested. It is sufficient to point out that such a mode of execution and attestation permits the substitution of a leaf with a fabricated signature for that which may have been witnessed by the testamentary witnesses attesting its execution.

The first question which presents itself to my consideration is as to the genuineness of the signature to the first leaf of the paper writing in question.

There were put in evidence and have been presented to me many signatures of the alleged testator, proved to have been made by him. Among them is a series of signatures to checks drawn upon the bank in which he kept a deposit. This series extends to a point of time within two> or at the most, three days before the alleged execution of the will. Ol:her checks, made after the alleged execution, are also presented. These signatures and especially those on the checks exhibit the testator as capable of writing his name in a legible hand, with distinguishing characteristics, which do not appear in the alleged signature to the contested paper. That this signature is not a genuine signature of the deceased is testified to by those who are acquainted with his writing and his signature, by reason of business relations with him. Many other witnesses accustomed to examine and compare signatures by reason of their duties as officers of banks and in other capacities declared that the contested signature is not that of the deceased. An intelligent expert, unfamiliar with the signature of the deceased except from specimens of the signature produced and proved, declared that the contested signature is not his.

The evidence produced by the proponents of the will does not impress me with equal force. It is brought out from persons who are acquainted with the signature of deceased only by irregular and casual transactions. It cannot, in my judgment, overcome the evidence given to the contrary by persons who acquired their knowledge of .the characteristics of the signature of the deceased in transactions in which it became their duty to examine his signature and to determine its genuineness before relying upon it and paying money on it. If the genuineness of this disputed signature is to be determined upon the evidence above referred to, I deem it to be clear that the proponents of this will have not made out their case.

But it is contended by the proponents of this paper that there is clear proof of the actual execution of it by the deceased and the actual making of the disputed signature by him. It is undoubtedly true that clear and reliable proof that the signature was actually made by testator will overcome any inference which might be drawn by the court upon its inspection of the disputed signature, and also any opinion proof given by persons acquainted with his genuine signature, to the effect that this is not a genuine signature of deceased.

The attestation clause declares that the paper in dispute was executed and published by deceased as his will, on February 27th, 1905. It is conceded that the date of execution was erroneous. The explanation is that the date was inserted in that clause by William H. Skillman, the scrivener and beneficiary, because deceased had appointed that day for the execution of his will. The contention is that upon a day, the date of which is not accurately fixed, but which must have been either the 1st or 2d of March, 1905, there is convincing proof that the deceased, in the house of William H. Skillman, and in the presence of his three, children and of William H. Ely, actually affixed this very signature to the paper in dispute.

The paper in dispute has at its ends the words “Wm. Lane-hart.” It is clear, however, that those words were first written in pencil and then traced by a pen and ink over the pencil marks. That the pencil marks were more evident when the paper was first produced than they are now is established by proof, and an inspection of the signature at the present time shows such marks.

That the testator, who was capable of making such signatures as were established by proof he did make to the checks shortly before and after the alleged execution, had signed this paper in pencil, afterward tracing it over in ink, is the contention of the proponents of this will.

■ Of the attesting witnesses to this will one, William H Ely, does not pretend to have seen the use of a pencil; the other, Jeremiah Skillman, swears he saw him use a pencil and assumed that he had traced it with ink, because, when he signed as witness, he saw the ink signature. Two other of the children of William H. Skillman declare' that they saw the testator use a pencil and therewith write his name, and then change the pencil from one hand to the other and then trace the signature with a pen.

I find it impossible to consider this evidence credible or reliable. The proof of the business capacity of the testator and his ability to make a plain and characteristic signature to those checks which were to be used in withdrawing his deposit from the bank in which he kept his funds, renders it incredible that when he came to write his signature to a paper which was to dispose of his whole property after his death, and to leave a large portion of it to a person-not related to or connected with him, to the exclusion of those who had natural claims upon him, he would have proceeded to execute the paper, which he must have understood would be likely to be contested, by writing his name in pencil and then tracing it over with ink.

This conclusion is not at all shaken by the proof that the deceased was accustomed to write letters and notes in pencil and not in ink. No instance has been produced in which the deceased, after writing his signature in pencil, has traced it over with ink.

Nor do I think that the proof that the day on which this signature is claimed to have been made was cold; that the deceased had driven to Skillman’s house from some distance and that he had two overcoats on, satisfactorily accounts for- the use of a pencil in making a signature. I may add that it seems to me incredible that the deceased if driven to the use of a pencil in making his signature would have failed to point out, at least to the attesting witnesses, the fact that he adopted this unusual mode of making his signature.

Tbe result is that I have concluded that the orphans court was right in determining that the disputed signature is not a genuine signature of the deceased. There was an opportunity to substitute for the first leaf of this paper another leaf skillfully written so as to occupy the same space as that which may have been signed by the testator, and to trace at the bottom of it a pencil imitation of his true signature, and thereupon, with ink, produce the signature now in dispute.

I deem it unnecessary to analyze the evidence voluminously taken in this case. It has been done with great care by the learned judge of the orphans court. .He had the great advantage of seeing the witnesses and hearing their evidence. If I had felt any doubt on the points I have discussed, which relate to questions of fact, I should not have been willing to disagree with the conclusions he reached. But I find none of his conclusions on which I have doubts.

It results that the decree of the orphans court must be affirmed.


text:
    In the matter of the accounting in the estate of Peter N. Frey, deceased.
    [Argued May 6th, 1907.
    Decided July 8th, 1907.]
    1. A collusive sale of an intestate’s assets clothes the purchaser with no rights against those interested in the estate, and where intestate’s grocery stock was sold to one who transferred his right to the administratrix individually, she must account for the stock as administratrix.
    2. Where exception is made to the allowance of an item of an administrator’s account, he must prove the claim has been paid.
    3. An administratrix is a competent witness on the question whether a claim for which she claims allowance has been paid, and her testimony, in the absence of contradiction, may be relied upon by the court.
    4. A matter not presented in the notice of appeal, nor the petition on appeal from a decree upon exceptions to an administratrix’s account, cannot be considered.
    5. Where an administratrix employed a society to obtain money from intestate’s debtor in Germany, and received one-half of the proceeds, the balance being remitted to intestate’s father, she was entitled to credits for money paid the society for obtaining the money and taking proceedings to require the father to pay over to her the money irregularly remitted to him.
    6. Where administratrix so conducted the estate as to justify disallowing any claim by her for commissions, it was improper to allow her counsel fees.
    On appeal of Wolke Erey from a decree of the Hudson county orphans court, upon exceptions to the account of Emma R. Erey, administratrix of Peter N. Erey.

      Mr. Rudolph F. Rate, for the appellant, Wolke Erey.

      Mr. Henry F. Nutzhorn, for the accountant, Emma R. Erey.
   Magie, Ordinary.

The account of Emma R. Erey, administratrix of Peter N. Erey, deceased, was excepted to by Wolke Erey, claiming to be interested in the estate of the deceased. The orphans court proceeded to hear proofs upon the exceptions, and the order made thereupon has been appealed from by the exceptant.

The orphans court has returned no finding of facts, but has sent up, in the transcript, all the evidence taken before it.

It appears therefrom that Peter N. Erey died September 18th, 1902, leaving a widow, but no children or descendants. His father, the appellant, was next of kin, and under our statute of distribution entitled to one-half of his estate. He was a resident of Germany. The deceased at the time of his death was in the grocery business and had a stock of such articles as are sold in a grocery store. He had conducted that business for some years, and a reasonable inference is that he had acquired a good-will which was of value. The widow conducted the same business after his death, with the stock on hand for a whole year. Hp to January, .1903, she had not taken out letters of administration. After taking out such letters she continued to conduct the business, but did not make an inventory of the estate until September, 1903. On September 10th, 1903, the administratrix put the stock in trade as it then stood up to public sale under advertisements. It was struck off to one Frederick J. Lemcke, on bis bid of $250. The administratrix was present at the sale and after Lemcke’s bid was accepted and the stock struck off to him, she paid him $20, in consideration of which he transferred to her his right to the stock in trade upon his bid, which she assumed to pay. She continued thereafter to carry on business until April, 1904, when she sold it to one Meiner for the sum of $1,450.

It also appears in the case that the deceased owned an interest in a mortgage upon lands in Germany, amounting to 7,000 marks, apparently valued at $1,600.

I will take up and dispose of such of the errors claimed in the petition of appeal as have been argued.

It is first argued that the orphans court erred in not charging the administratrix with an additional $1,200 as the proceeds of the stock and good-will of the grocery business of the deceased. The accountant charged herself with only $250, and the claim is that she should have been charged with $1,200 more. As no inventory of the stock in trade was taken at, or directly after, the death of deceased it is manifest that we have no opportunity to thus determine its value. The inventory taken a year after, probably did not include a single item of stock in trade existing at the death of the deceased. The claim of tire administratrix is that the inventory in the same month of the ensuing year would find the articles composing the stock in trade equivalent in value to the articles existing at the decedent’s death. That inventory amounted to $288.96. On her own theory she ought to have been charged more than the $250, which she admits. But the claim of exceptant is that the sale of the stock in trade at $250 and its immediate repurchase by the administratrix was a collusive sale, intended to place her in a position to claim the right both to the stock and to the good-will of the business as against any claim of the next of kin of the deceased. That the sale was collusive the evidence is not only persuasive, but, to my mind, convincing. Such a sale cannot clothe the collusive purchaser with any right as against persons interested in the estate. The administratrix, therefore, con-tinned after the sale in the possession of the property as administratrix and must account for it as such.

It results that she should be made to account for the $1,450 received by her, less the $250 admitted, except for a certain fact appearing in the evidence and not considered in the brief of counsel.

It appears that the sale included some other property than the stock in trade and the good-will of the business. It seems clear that the other property included belonged to the accountant, but it is impossible, from the evidence, to discover what the amount or value of it was.

It follows that the exception must be sustained, unless counsel can agree on the reduction from the price paid by Meiner, which will represent the value of accountant’s property included in the sale; otherwise the case must be remitted for further evidence and adjudication on the lines of this opinion.

The second matter argued relates to the exceptions to an allowance of $400 prayed by the administratrix for a headstone and fence about the grave of the intestate. The orphans court sustained this exception and reduced the allowance to $265., It is now contended that the whole amount should have been disallowed. This contention cannot prevail except by discrediting the evidence, for which I perceive no reason.

It is next claimed that an item of $80 claimed by the administratrix to have been paid for the burial plot in which the deceased was buried should have been disallowed. The orphans court refused to sustain this exception, and I see no reason to think that course was erroneous. It seems that the accountant presented no voucher for this payment, but she .testified that she had paid it to her uncle. An accountant upon exceptions, to claims for allowance is bound to prove them to have been paid. Kirby v. Coles, 15 N. J. Law (3 Gr.) 441. The administratrix was a competent witness on this question, and her testimony, in the absence of contradiction, might be relied on by the court. Appellant’s counsel insists that the uncle, to whom she testified she had paid the sum, was on the witness-stand, but was not examined as to this matter by the counsel for the administratrix. There seems no reason why tha.t should have been done, and the exceptant might have examined him himself.

The administratrix prayed an allowance for a payment of $84 to Montagne & Company. It clearly appears that this was an improper claim, as the bill had been paid before the death of Peter N. Ere}’, but this matter is not presented in the notice of appeal, nor in the petition, and therefore cannot be considered.

It is further insisted that the accountant ought not to be allowed the sum of $236 which she claims she paid to a German society in New York, which she appears to have employed in proceedings to obtain from Germany 7,000 marks which belonged to her husband. The evidence malees it clear that she received moneys presumed to be the equivalent of one-half the claim through the medium of that society or one of its agents. The society’s agent obtained the payment from the mortgagor in German}1- of the whole amount due to the deceased. He remitted one-half to the accountant as administratrix of her husband and delivered the other half to the decedent’s father, the exceptant in this case. This was, of course, entirely irregular. It does not appear that there were any proceedings of the nature of administration of the estate of the deceased which was found in Germany. It does appear that it was questionable whether the estate in New Jersey was not in a condition to require the assets in the foreign administration to be transmitted here for accounting. At all events the administratrix had a right to insist upon it, and she properly expended money in the attempt.

It further appears that she has, since the exceptant has obtained one-half the mortgage debt in this irregular way, paid the society for taking proceedings to require him to pay the money over to her. I think she is entitled to be allowed the money paid by her to obtain the German asset of the estate, and since the exceptant and appellant claim to contest her accounting, he ought not to be permitted to discredit her claim fox allowance for money paid for taking steps which his irregular conduct has rendered proper. I think she should have been allowed for these payments.

It is next insisted that the orphans court erred in allowing a counsel fee of $400 for the accountant. It is difficult to discover any ground upon which this action can be justified. The court below thought the administratrix had so conducted the business of the estate as to justify disallowing any claim by her for commissions. In this I think the court was entirely correct. The course of the administratrix was, to say the least, so irregular and so productive of danger and injury to the estate that I think her commissions were justly withheld from her. But for the same reason I think no allowance should be made to her counsel. If he advised her in the conduct which has been noted above he ought to have no allowance or compensation for such advice. If he advised her with reference to the accounting which she presented to the orphans court, I perceive no reason why he should have any such allowance for that. The account was open to the objections made and sustained in this ease.

A decree will be made in accordance with this opinion.


author: Magib, Ordinary.

text:
    William H. Skillman, appellant, v. Mary J. Lanehart et al., respondents.
    [Decided July 2d, 1907.]
    1. Tlie court having power under Orphans Court act 1898, section 197 (P. L. 1898 p. 789), in a cause respecting the probate of a will, in which probate was refused, to order both costs and expenses to be paid by the person propounding the will, or to be paid out of the estate, such proponent, may not complain that the court, while imposing the expenses on the estate, imposed the costs on him.
    2. The unsuccessful proponents of a will may not complain of the refusal to allow them their expenses, there being no power to impose the expenses of that unsuccessful litigation on the estate.
    3. The court, on an unsuccessful appeal from the refusal by the orphans court of probate of a will, has no power to allow proponent counsel fees in the appellate court.

      Messrs. Clark & Case, for the appellant.

      Mr. Nelson Y. Dungan and Mr. Jam,es L. Ch'iggs, for the respondents.
   Magib, Ordinary.

A contest upon an appeal from a decree of the orphans court of Somerset county, refusing probate to a paper writing propounded by appellant as the will of William Lanehart, deceased, has been heard and an opinion has been filed therein.

Counsel for appellant state that it was their intention to present objections at the same time to an order of the orphans court maldng allowances of counsel fees and expenses to counsel for contestants, and refusing counsel fees to counsel for the proponent. A petition of appeal from the lastomentioned order was presented and filed, but by inadvertence it was not printed in the case.

Counsel of both sides now stipulate that the matter thus presented may be considered and adjudicated upon with further argument.

The order appealed from contained three distinct clauses— first, it fixed the expenses of the litigation (including counsel fees) and ordered them paid out of the estate of the deceased; second, it fixed the taxed costs and ordered them to be paid by the appellant, who was one of the persons propounding the will, and third, it denied any allowance for counsel fees and expenses to the appellant and Laura Kellogg, who were named as executor and executrix in the paper writing which was refused probate.

As this was a cause respecting the probate of a will in which probate was refused, the court had power to order both costs and expenses to be paid by the person propounding the will, or to be paid out of the estate. Orphans Court act of 1898 p. 789 § 197. The court imposed the expenses of the litigation upon the estate of the deceased, the costs upon the proponent. In my judgment, appellant cannot complain of this division. The grounds on which the costs were imposed on him would probably have justified imposing the expenses also on him. The order which imposes expenses on the estate instead of on appellant has not been appealed from. So much of the decree as imposes the costs must be affirmed.

So much of the decree as refused .to allow to the proponents their expenses (including counsel fees) must also be affirmed. They were unsuccessful proponents of a will. There is no power to direct the expenses of that unsuccessful litigation to he imposed on the estate of the deceased.

In connection herewith may be considered the application of appellant’s counsel for an allowance of counsel fees in this court. In my judgment, I have no power to make such allowances from the estate.


author: Bergen, Vice-Ordinary.

text:
    In the matter of the estate of John J. Jones, deceased.
    [Submitted and decided September 12th, 1907.]
    The New York Baptist Union for Ministerial Education furnished means of instruction to young men of the Baptist denomination, without reference to residence, who should give satisfactory evidence to their church and to the trustees of the society .of their personal piety and of their call to gospel ministry. The Baptist Educational Society of the State of New York furnished means of instruction to young men of the Baptist denomination who gave satisfactory evidence to their church and to the board of trustees of their personal piety and call to preach, and was similarly supported. The American Baptist Home Missionary Society was organized to promote the preaching of the gospel in North America. Its constitution provided for officers and members, and that all money or property contributed and designated for any particular field should be used as appointed or returned to the donors. It had no other purpose than the extension of gospel preaching. — Seld, that all three were religious institutions not confined in their operations to local or state purposes, but for the general good of' the people interested therein, and were therefore exempt from payment of the collateral inheritance tax imposed by the laws of 1898. P. L. 1898 p. 106.

    Application for assessment of the collateral inheritance tax against certain legatees under the will of John J. Jones, deceased. Decree in favor of exemption of certain religions associations.

      Mr. William H. Barrichlo. for the state.

      Mr. Gibadles L. Corbin, for the legatees.
   Bergen, Vice-Ordinary.

The purpose of this proceeding is to have determined the right to impose upon certain legatees, under the last will and testament of John J. Jones, deceased, who was at the time of his death a resident of this state, a collateral inheritance tax. The tax has been assessed through the agency of the comptroller of the state, and the legatees object to the imposition of this tax, and insist that under a supplement, passed in 1898, to the act commonly known as the “Collateral Inheritance Tax act” they are exempt. The supplement exempts, from taxation, among other things, all legacies to any bible or tract society or religious institutions, boards of the church or organizations thereof, not confined in their operations and benefactions to local or state purposes, but for the general good of the people interested therein, whether such societies, religious institutions or boards are organized under the laws of this state or incorporated and organized under the laws of some other state. These legatees are the New York Baptist Union for Ministerial Education, the Baptist Educational Society of the State of New York, and the American Baptist Home Mission Society, and the question is whether they or either of them fall within the description of a religious institution, a board of the church or an organization thereof which does not confine its operations and benefactions to local or state purposes, but exercises them for the general good of those interested therein.

The Union for Ministerial Education, by its constitution, defines its operations and benefactions as follows:

“The object shall be to furnish means of instruction to such young men of the Baptist denomination as shall give satisfactory evidence to the church of which they are members, and to the trustees of the society, of their personal piety and their call to the gospel ministry.”

The members of the union shall be those who are members of any Baptist church, paying at least the sum of $2 yearly or life members by paying the sum of $20 at one time or honorary members by paying the sum of $50, and the number of delegates to be sent by any Baptist church regularly contributing to the union is limited to one. It would seem according to the definition given to this union by its constitution that it is a religious institution. It manifestly has for its purpose only the furnishing of means for the instruction of young men of the Baptist denomination who shall give satisfactory evidence to the church of which they are members, and to the trustees, of their personal piety and of their call to the gospel ministry. Clearly that means that the union will assist in educating for the ministry such young men as are able to satisfy the church from which they come, and the trustees, that they are religiously inclined and intend to minister to the advancement of the cause of Christianity. How I can say that.the purpose, as indicated by this constitution, is otherwise than the establishment óf a religious institution is difficult for me to see. I am quite certain, on this branch of the case, that this union is a religious institution.

The next legatee is the Baptist Education Society of the State of New York, which in its constitution states its object to be

"to furnish the means of instruction to such young men of the Baptist denomination who give satisfactory evidence to the church of which they are members, and to the board of trustees, of their personal piety and their call to the gospel ministry.”

What I have said on this subject with reference to the ministerial union applies with equal force to this legatee.

The remaining legatee states in its constitution that “The object of this society shall be to promote the preaching of the gospel in North America.” And it further provides for offices and members, and .that all money or property contributed and designated for any particular field shall be used as appointed or returned to the donors or their lawful agents. This society is not only organized for but has no other purpose than the extension of gospel- preaching. The Baptist denomination is a religious denomination and the objects of this society is to advance the cause of Christianity according to the doctrines of the Baptist church; therefore, all three of these societies, in my opinion, are religious institutions. I also find that they are boards or organizations of the Baptist church and that their operations and benefactions are not local but general. They are sustained by the Baptist churches throughout, at least, the northern section of the United States. There is evidence to show that there are three different branches of the Baptist church, the southern, the northern and the negro or African branch, but this division is only arbitrary, and the distinction has grown up because of the character of the government of the church, which is that each church is an independent organization. But all of these institutions, though independent of each other, are supported by the Baptist denomination; contributions are taken up in a great many of these churches and funds axe sent to these three legatees to be used by the trustees of the institutions they represent for the advancement of Christianity. Of course, the contributions are voluntary and not compulsory, but that method applies to every denomination. The board of foreign missions of the Presbyterian and Reformed churches are supported by contributions or by legacies entirely voluntary. These legatees being religious institutions and, as I have determined, organizations of the Baptist church, the next question is, has or- does either of these confine their operations and benefactions to local or state purposes? It has been argued here very strenuously that because the contributions made by .at least two of these legatees are largely devoted to> the education of young men for the ministry, and that the money has been given or turned over almost entirely to special educational institutions, therefore, their operations and benefactions have been local. As I interpret this evidence these two institutions, the ministerial union and the educational society, are distinct corporations, not only as between themselves, but they have no corporate connection with the college or school to which they have contributed for the religious education of men, to train them to advance the growth of belief in Christianity. It appears by the evidence that the benefits that they have conferred upon the objects of their benefactions are not limited to students of any particular locality. They are taken from all parts of the country and from foreign lands; any man, no matter where he comes from, who will agree to serve as a Baptist minister, after he has been educated, and to preach the gospel, is given assistance to prepare him for his religious work. They may not do it in full, they may not have sufficient income to pay him enough for the completion of his education, but if they do the best they can, if they take the money that is contributed and divide it as equally as they can between the applicants, I take it they are conferring their benefactions generally and that the operations of the institution and the conferring of their benefactions is not local but for the general good of the people interested therein. The money is given by the Baptist church for the purpose of educating young men to advance religious doctrines of the Baptist church, and is disbursed by these legatees for that purpose.

With regard to the board of missions, there is no doubt but it falls within the definition of the act. This is really a board of missions, and it is an institution clearly within the exemptions provided by the act. I am, therefore, of the opinion that all of these three legatees fall within, the exemption of the act of 1898 and are entitled to be relieved from the payment of the collateral inheritance tax.


author: G-ummere, Chief-Justice.

text:
    The Mayor and Council of the Borough of Metuchen, appellant, v. The Pennsylvania Railroad Company et al., respondents.
    [Argued June 25th and 26th, 1907.
    Decided April 16th, 1908.]
    1. The twenty-ninth section of the Railroad law of 1903 (P. L. 190S p. 61/5) confers upon the court of chancery power to compel a railroad company to widen a highway crossing constructed by it under its right of way, when such crossing is so narrow as to impede public travel upon the highway.
    2. The charter of a railroad company provided that it should be the duty of the company to construct and keep in repair good and sufficient bridges or passages over or under its railroad where any public road should cross the same, so that the passage of carriages, horses and cattle should not be impeded thereby. — Held, that such charter provision-empowered the company to substitute an undergrade passageway in the place of a highway crossing at grade, when the public travel along the highway had increased to such an extent that the abandonment of the grade crossing was required for the public safety. — Held further, that such charter provision did not require the undergrade passage to be constructed to the full width of the highway unless that width was required for the accommodation of public travel a.t the place of its location. — Held further, that such charter provision imposed upon the company the duty of keeping in repair the surface of the passageway as constructed by it.
    3. A railroad company which constructs a passageway under its railroad, at a highway crossing, in pursuance -of such a charter provision, is charged with the duty -of preventing the accumulation of surface water therein in such quantity -as to interfere with the user of the passageway by the public.
    On appeal of the Pennsylvania Eailroad Company, and cross-appeal of the borough of Metuchen from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 71 N. J. Eq. (1 Buck.) Ji-OJ/..

      Mr. Alan H. Strong, for the companies.

      Mr. Charles L. Corbin and Mr. George S. Silzer, for the borough.
   The opinion of the court was delivered by

G-ummere, Chief-Justice.

Prior to the year 1889 the railroad of the Pennsylvania Eailroad Companjr, lessee of the United New Jersey Eailroad and Canal Company, crossed Main street in the borough of Metuchen at grade. For the better safeguarding of the public using this highway this grade crossing was, in the year mentioned, abolished by the lowering of the grade of Main street on each side of the railroad tracks, and the construction by the railroad company of a passageway under its railroad, connecting at each end with Main street at the lowered grade thereof. The width of Main ■street before this change was made was, and it still continues to be, sixty-six feet. The passageway under the railroad was ■constructed at a width of forty-five feet, consisting of a roadway twenty-five feet wide, paved with Belgian block, and a sidewalk ten feet in width on each side thereof. The railroad, where it ■crossed over the passageway was supported by iron columns which stood on the edge of either sidewalk, and the abutments and retaining walls of the embankment were on the exterior lines thereof. The drainage of the company’s right of way to the east ■of this crossing point, for nearly a half mile, is toward the crossing, and for the purpose of taking care of the surface water which should flow into the passageway therefrom, the company ■built a receiving basin and laid a drain pipe from it to connect with a brook about one thousand feet to the west. The drain pipe, although when originally constructed it carried off the water which came into the passageway in times of heavy rain, fails to do so at the present time, probably on account of some stoppage in the pipes, so that now the passageway is flooded ■during such periods to a sufficient extent to practically block traffic. In addition, the Belgian block pavement of the roadway in the passage has become so uneven and out of repair as to make travel over it dangerous. The bill in this case is filed by the borough to compel the defendant (1) to remove the pillars •and abutments supporting its railroad from their present location, and to widen the passageway to the full width of Main •street; (2) to reconstruct its drainage system in such a way that the water from its right of way shall no longer be discharged into the passageway in such quantity as to accumulate there and flood it, and (3) to put the pavement of the roadway in the underground passage in proper repair. Upon the hearing in the court of chancery it was decreed that the complainants were ■entitled to the relief sought, so far as the widening of the passageway to sixty-six feet and the reconstruction of the defendant’s drainage system were concerned, but that the defendant was not charged with the duty of repairing the pavement of the roadway. The defendant company appeals from so much of the decree as grants the complainants the relief stated, and the complainants appeal from that part of the decree which refuses them relief with regard to the repair of the roadway.

Taking up for consideration first the appeal of the railroad company, it is contended by it that the court of chancery has no jurisdiction over the subject-matter of the litigation. The-same contention was made in the court of chancery, and it was there considered untenable. The grounds which led the learned vice-chancellor to the conclusion that the matters involved in the-litigation were cognizable in the court of chancery are fully set out in his opinion, and we concur in the views expressed by him upon this point and in his conclusion. Upon the merits the Pennsjdvania Railroad Company rested its defence against the-claim that it should be compelled to remove its pillars and abutments. and open up the passageway to the full width of Main street, upon two statutory provisions. The first is contained in an act entitled “An act relative to the Delaware and Raritan Canal Company, the Camden and Amboy Railroad and Transportation Company, and the New Jersey Railroad and Transportation Company,” the three companies which were afterward consolidated into the United New Jersey Railroad and Canal Company (P. L. 1868 p. 1087), which authorized these companies to shorten and straighten any part of their railroad lines, and to cause the same to pass above or below any public highway or street crossing the same, and, if necessary, to change the location or grade of such highway or street so as to make the crossing more convenient, provided such change is concurred in by the common council of the city or borough, or a majority of the sum veyors of the highway of any township, in which such change-may be made. The second of these statutory provisions is contained in the charter of the New Jersey Railroad and Transportation Company, one of the constituent companies of the-United New Jers.ey Railroad and Canal Company, and the original owner of this railroad,.and is as follows:

“Section 20. It shall be the duty of the said company to construct and to keep in repair good and sufficient bridges or passages over or under said railroad or roads where any public or other road shall cross the same, -so that the passage of carriages, horses and ca-ttle on said- road shall not be impeded thereby.” P. L. 183% p. 101¡.

We agree with the conclusion expressed by the vice-chancellor that, under the facts proved before him, and which are fully set out in his opinion, the first of these statutory provisions affords no protection to the defendant company against the claim of the complainants, and for reasons stated by him. But the conclusion reached by him that the charter provision above recited did not authorize the defendant company to carry Main street under its railroad through a passage narrower than the full, width of the street, and affords no justification for the maintaining of the passage at its present width is, we think, unsound. It may very well be that when a railroad company builds its railroad over an existing public road, so high above the level thereof as not to interfere with public travel thereon, such a charter provision as that appealed to confers upon it no right to encroach upon the limits of such road with its abutments, or with supports for its tracks; but'when the tracks of a railroad company have been laid across a public highway at grade, and increasing travel eventually requires the abandoning of the grade crossing for the better conserving of the safety of those using the highway, the right of the company under such a charter provision to construct a passageway under its railroad, as it then exists, of sufficient width and height to accommodate public travel, instead of lowering the grade of the highway and carrying it in its full width under the railroad, is clear, for the imposition of the duty carries with it the power to perform that duty in exact accordance with its prescriptions. This, as we understand its opinion, was the view expressed by the supreme court in the case of Central Railroad Co. v. State, 32 N. J. Law (3 Vr.) 220, and-the soundness of that view has never since been questioned in any .of our judicial decisions. The duty imposed is: “To provide a substitute for that which is necessarily and lawfully taken away, and the law requires no more than.that such substitute shall be sufficient to accommodate public travel at its location.” Township of Raritan v. Port Reading Railroad Co., 49 N. J. Eq. (4 Dick.) 11. No attempt was made on the part of the complainants to show that when the grade ..crossing was abolished in 1889, the passageway then constructed by the railroad company under its railroad was not amply sufficient to accommodate public travel; that it was not so constructed that, in the language of the charter provision, the passage of carriages, horses and cattle on said road would not be impeded thereby. We conclude, therefore, that at that time the construction now complained of was fully authorized by the charter provision referred to.

But the duty resting upon the defendant company of constructing and maintaining a good and sufficient passage under its railroad at its intersection with Main street is a continuing one, and as that passage was not originally made of equal capacity with the highway, it must, from time to time, be enlarged by the company as public accommodation demands, until it shall reach the full capacity of the highway (Central Railroad Co. v. State, supra; Township of Raritan v. Port Reading Railroad Co., supra), and it was considered by the vice-chancellor, and is contended here on behalf of the borough, that the public travel upon Main street, at the present time, is of such volume as to require this passageway to be enlarged to the full width of the street. The only testimony upon that subject was given by one Eagan, who stated that, at the request of the mayor of the borough, he had, upon a certain day during the hearing of the cause, counted the number of persons and vehicles passing under the crossing between six o’clock in the morning and seven o’clock in the evening, and that the number of foot passengers during the thirteen hours was fourteen hundred and ñfty-nine; the number of vehicles, exclusive of trolley cars (there is a single-track trolley road running through Main street), was three hundred and ninety-four, and the number of trolley cars, four each hour. The case shows that the defendant company’s railroad station is located adjacent to this crossing, and it is fair to assume that the volume of travel through the passage is much heavier at the time of the arrival and departure of trains than at other times, and that it is not evenly distributed through the day at the rate of a vehicle every two minutes, and a foot passenger every half minute. But even with this assumption we are not able to perceive any ground for sustaining the conclusion that a roadway, twenty-five feet wide, ample for the accommodation of three wagons abreast, with two sidewalks each ten feet wide, is not fully sufficient for the accommodation of the travel at this point. When we remember that the roadway of Wall street in the city of New York, one of the busiest thoroughfares in the world, is only twenty-four feet in width at its broadest point, viz., its junction with Broadway, and that the roadway of Chestnut street, the most 'important street in Philadelphia, a city of over a million inhabitants, is only twenty-six feet wide at its intersection with Broad street, the point of greatest traffic in all that immense city, we feel quite safe in saying that a roadway of practically the same width as that of those two great thoroughfares, supplemented by two sidewalks each ten feet wide, is fully adequate to meet the requirements of the borough of Metuchen, with its population of nineteen hundred and seven (according to the state census of 1905) and of its vicinity. So much of the decree as requires the removal of the defendant company’s abutments and embankments, and the opening of the passageway to the width of Main street, must be reversed.

The portion of the decree which compels the defendant company to so reconstruct its drainage system that the water from its right of way shall not be discharged upon the street, and into the passageway, in such quantities as to interfere with public travel, we think should be affirmed, and for the reasons stated in the opinion of the learned vice-chancellor.

Turning, now, to that portion of the decree appealed from by the borough, viz., the refusal to compel the defendant company to keep in repair the surface of the roadway under its right of way. We cannot concur in the view expressed by the vice-chancellor that this duty of repair rests upon the borough authorities and not upon the defendant company. We have pointed out that what was done in 1889 was not the depressing of the grade of Main street at the point of its intersection with the company’s railroad, and the carrying of the street under the railroad at the altered grade, but the substitution by the defendant company, at that point, of a public way or passage under its railroad in the place thereof, and that this substitution was authorized by the power conferred upon the company by the twentieth section of the charter of the New Jersey Railroad and Transportation Company. This provision apparently leaves the size of the passage and the character of its construction to be determined by the judgment of the railroad company, with the single limitation that it shall fully accommodate public travel. The railroad company, in the present instance, elected to construct a passage with a Belgian block pavement upon the roadway thereof, and this pavement constituted an integral part of that passage. The charter provision of which the defendant company has availed itself requires the company “to keep in repair” such passages as it shall construct under its railroad, and that duty covers every part of such passageway. So much of the decree as relieves the defendant from the performance of that duty must be reversed.

For affirmance — None.

For reversal — The Chancellor, Chief-Justice, Garrison, Swayze, Reed, Trenci-iard, Parker, Bergen, Bogert, Vredenburgh, Gray, Dill — 12.


author: GrUMMERE, OhIEE-JuSTICE.

text:
    Ellen M. Fennimore et al., respondents, v. Ida E. Wagner, appellant.
    [Argued June 28th, 1907.
    Decided November 18th, 1907.]
    1. The joinder of issue by complainant in equity upon defendant’s plea is an admission of its sufficiency as a complete defence to the case made by the bill, and where, after such joinder, the facts alleged in the plea are sustained by proof, defendant is entitled to a decree dismissing the bill upon its merits, regardless of whether or not the plea constitutes a valid defence to the suit.
    2. Where a plea contains several distinct allegations of fact, all of ■those allegations which are material must be supportéd by the proofs or the plea will be overruled .as false.
    On appeal from a decree in chancery advised by Vice-Chancellor Bergen, whose opinion is reported in 6J¡. Ail. Rep. 696.

      Mr. Samuel Ii. Richards, for the appellant.

      Mr. Frederick A. Rex, for the respondents. .
   The opinion of the court was delivered by

GrUMMERE, OhIEE-JuSTICE.

The bill of complaint in this cause was filed by two of the -daughters of one Elizabeth Walsh, who were residuary legatees named in her will, against Ida E. Wagner, another daughter of Mrs. Walsh, and charges that a few months before the death of Mrs. Walsh and while she was in feeble health and of weakened mental capacity, she was induced by the defendant, Mrs.' Wagner, to take up her home with her; that she continued to live with Mrs. Wagner until her decease: that while residing with her Mrs. Walsh was fraudulently induced and unduly influenced-by her to assign and transfer to her, without consideration, all of the personal estate which she (Mrs. Walsh) possessed, consisting of six bonds and mortgages aggregating $6,200; certain shares of capital stock of a fire insurance company worth about $860; household furniture worth about $200, and $1,000 in cash, and that such transfer was made after the execution of a will by Mrs. Walsh, which bequeathed all her property equally to her daughters. The prayer of the bill is that all of the personal property so assigned to Mrs. Wagner should be adjudged to be a part of the personal estate of Elizabeth Walsh, deceased. The defendant, Mrs. Wagner, instead of meeting the charges of the bill by an answer filed a plea to it, the only averment of which is that “for the assignment and transfer by Elizabeth Walsh to this defendant of the bonds and mortgages and shares of stock and other personal property in the bill mentioned good and valuable consideration passed from this defendant to said Elizabeth Walsh.” The complainants replied by joining issue upon this plea.

The contention of the defendant, both in the court of chancery and also here, is that the complainants by joining issue upon her ¡olea admitted its sufficiency as a complete defence to the case made by the bill, and that, therefore, if the facts set up in her plea were proved by her she was entitled, under the practice of the court of chancery, to a decree dismissing the bill upon the merits without regard to whether or not those facts constituted a valid defence to the suit. The effect of taking issue upon a plea in bar of matters in pais is, as the defendant contends, entirely settled. Story, in his work on Equity Pleading, section 697, lays 'it down that

“if the plea is upon argument held to be good, or if the complainant admits it to be so by replying to it, the truth of the plea is the only subject of inquiry remaining, so, far as the plea extends, and nothing but the matters contained in the plea as to so much of the bill as the plea covers is in issue between the parties; * * * and, if the defendant proves the truth of the matters pleaded, the suit, so far as the plea extends, is barred.”

In 1 Dan. Oh. Pr. eh. 15 § If the rule is stated in this way:

“If the complainant reply to the plea he thereby makes as full an admission of its validity as if it had been allowed upon argument, so that if the defendant at the hearing proves his plea to be true, the bill must be dismissed.”

The rule was recognized in this state in the early case of Meeker v. Marsh, Executor, &c., 1 N. J. Eq. (Sax.) 198. It was followed in Flagg v. Bonnel, 10 N. J. Eq. (2 Stock.) 82. and later in Hunt v. West Jersey Traction Co., 62 N. J. Eq. (17 Dick.) 225. In the present case'the learned vice-chancellor, before whom the case was heard, acted upon it and called upon the defendant to support by proof the allegation of her plea that she had paid a good and valuable consideration for the property specified in the bill. This, in his judgment, she failed to do, and for this reason advised a decree for the complainant.

We concur in the view expressed in the opinion of the vice-chancellor that the proofs therein specified do not sustain the plea. But it is urged before us that the learned vice-chancellor, in his consideration of the case, gave no effect to the seals attached to certain of the assignments of mortgages made by Mrs. Walsh to the defendant, and which were produced in evidence before him, and the contention is now made that these seals import a valuable consideration. It is often stated both in text-books and judicial decisions that such implication is to be given to the presence of a seal upon a contract. The correctness of this statement, however, is at least doubtful. It would seem to be more accurate to say that the presence of a seal implies such deliberation in the execution of a contract that courts will not permit the question of consideration to be inquired into-. But even if it be conceded that a seal proves consideration in the making of a contract to- which, it is attached, the defendant is not 'helped thereby. The bill of complaint alleges that she obtained from her mother by fraud and undue influence, besides six bonds and mortgages, certain shares of stock and other property of value. Assignments of only three of the bonds and mortgages were produced before the vice-chancellor, and there is no proof of the assignment of the other bonds' and mortgages, or of the transfer of the shares of stock or of the remaining property specified in the bill. A corollary of the rule which entitles the defendant to a decree upon proof of the facts set up in his plea when the complainant has joined issue upon it — even though the plea is not good either in form or in substance — is that where a plea contains several distinct allegations of fact all of those allegations which are material must be supported by the proofs or the plea will be overruled'as false. Dows v. McMichael, 6 Paige 144; Miller v. United Slates Casualty Co., 31 N. J. Eq. (16 Dick.) 115; Hunt v. West Jersey Traction Co., supra. The present plea avers that a good and valuable consideration passed from the defendant to her mother for each bond and mortgage, for the several shares of stock and for the cash and household furniture received by her. It need hardly be said that the presence of the seals upon the three assignments produced before the vice-chancellor is no evidence of consideration paid by the defendant for property not conveyed by the assignments. The other proofs in the case, as we have already said, fail to support the allegation of a consideration paid for the rest of the property received by the defendant. The overruling of the plea and the decreeing of the relief sought by the bill was therefore proper.

The decree appealed from should be affirmed.

For a-ffirmance — Ti-ie Ci-iiee-Justioe, Garrison, Hendrickson, Pitney, Swayize, Need, Trenchard, Bogert, Vredenburgit, Vroom, Green, Gray, Dill — 13.

For reversal — None.