text:
    Mark H. Buzby et al., executors of Mary M. Wilkins, deceased, appellants, v. Henry Darnell, guardian of Joshua W. Hurley, respondent.
    On appeal from a decree of the ordinary, whose opinion is reported in Darnell v. Buzby, 5 Dick. Ch. Rep. 725.

      Mr. Mark R. Sooy, for the appellants.

      Mr. Jerome B. Grigg and Mr. Samuel H. Grey, for the respondent.
   Per Curiam.

Decree affirmed, for the reasons given by the ordinary.

For affirmance — Depue, Garrison, Lippincott, Reed, Yan Syckel, Brown, Krueger — 7.

For reversal — Dixon, Bogert — 2.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Samuel T. Engle et al., legatees &c., appellants, v. Henry Darnell, guardian of Joshua W. Hurley, respondent.
    On appeal from a decree of the ordinary, whose opinion is reported in Darnell v. Buzby, 5 Dick. Ch. Rep. 725.

      Mr. Felcard P. Budd, for the appellants.

      Mr. Jerome B. Grigg and Mr. Samuel H. Grey, for the respondent.
   Per Curiam.

Decree affirmed, for the reasons given by the ordinary.

For affirmance — Depue, Garrison, Lippincott, Reed, Yan Syckel, Brown, Krueger — 7.

For reversal — Dixon, Bogert — 2.


text:
    Sarah H. Colvin, appellant, v. Henry C. Pitney et al., executors &c. of Catherine C. Halsted, respondents.
    On appeal from a decree advised by Vice-Chancellor Van Fleet, whose opinion is reported in Halsted v. Colvin, 6 Dick. Ch. Rep. 387.

      Mr. Joseph P. Osborne and Mr. George W. Carr (of New York), for the appellant.

      Mr. Henry C. Pitney, Jr., and Mr. William H. Vredenburgh, for the respondents.
   Per Curiam.

Decree affirmed, for the reasons given in the court of chancery.

For affirmance — Abbett, Depue, Dixon, Garrison, Lippincott, Reel, Van Syckel, Bogert, Brown, Smith — 10.

For reversal — Hone.


text:
    Morris and Essex Railroad Company and Delaware, Lackawanna and Western Railroad Company, appellants, v. Newark Passenger Railway Company, respondents.
    On appeal from an order of the chancellor, whose opinion is reported in Morris and Essex Railroad Co. et al. v. Newark Passenger Railway Co., 6 Dick. Ch. Rep. 379.

   Per Curiam.

Order affirmed, for the reasons given by the chancellor.

For affirmance — The Chief-Justice, Abbett, Depue, Dixon, Garrison, Lippincott, Magie, Eeed, Van Syckel, Bogert, Brown, Sims, Smith — 13.

For reversal — None.


author: The Chancellor.

text:
    Catherine F. Dawson et al. v. Annie Schaefer et al.
    J. S. died in 1888, leaving six children, to whom, by name, he devised and bequeathed his residuary estate, subject to these provisions: That the real estate should not be sold until his youngest living child should reach the age of twenty-one; that pending that period his executor should manage the property for the benefit of his children, they being entitled to the net income in equal shares; that upon the arrival of the youngest living child, at the age of twenty-one, then the children should “have absolute control of said property to do with and dispose of as best to them seems fit and proper.” The last clause was immediately followed by this sentence: “ If any of my children shall die leaving heir or heirs then such heir or heirs shall receive the same proportion as the parent of such heir or heirs would have received, that is, the parent’s undivided part.” A son, M., died in 1890, leaving him surviving an infant son, M., Jr. In 1892 the testator’s youngest child became of age. — Held, that M.J Jr., takes one undivided sixth of the real estate in place of M., M. having taken a vested estate subject to divestiture by his death, leaving a child, before the testator’s youngest child became twenty-one years of age.
    On bill for partition and answers.

      Mr. J. I. Blair Reiley, for the complainants.

      Mr, Irwin W. Schultz, for Annie Schaefer and others.

      Mr. Sylvester G. Smith, for Matthew Schaefer, Jr.
   The Chancellor.

Joseph Schaefer died January 24th, 1888, leaving six children him surviving, Mary, George, Matthew, Frances, Annie and Catherine, having duly made his last will, in and by which he bequeathed and devised all his property, real and personal, to his six children, by name, share and share alike, expressing his devise to be subject to these provisions:

“It is my will and I order and direct that no part of my real property shall be sold until my youngest child, Catherine, shall arrive at the age of twenty-one years. If my youngest child, Catherine, should die before arriving at the age aforesaid then the property shall not be sold until the next older, Annie, shall arrive at the age aforesaid, and if Annie dies before she arrives at the age aforesaid, then the said property shall not be sold until the next older shall arrive at the age aforesaid. And when my youngest child living shall have arrived at the age of twenty-one years, then they shall have absolute control of said property to do with and dispose of as best to them seems fit and proper. If any of my children shall die leaving heir or heirs then such heir or heirs shall receive the same proportion as the parent of such heir or heirs would have received, that is, the parent’s undivided part.
“ It is my will and I do order and direct that said property shall be controlled and managed to the best interests of my children, each to be entitled to receive an equal share with the other of all rents, issues and profits arising therefrom after all the just expenses, repairs and taxes are paid.
“ It is my will and I do hereby appoint my executor hereinafter named trustee of the property aforesaid and I do order and direct that he shall manage and control the same to the best interest of my children, so that they may receive the greatest possible benefit and profit therefrom.”

On the 21st of January, 1889, the testator’s son Matthew executed a mortgage upon an undivided sixth of his father’s real estate. He was not then married. On the 28th of September, 1890, he died, leaving his widow and an infant son, also named Matthew, surviving him. In October, 1892, Catherine Schaefer, the testator’s youngest child, became of age. In 1893 the mortgagee of Matthew, Sr., proceeded to foreclose the supposed equity of redemption of the widow and infant heir-at-law of Matthew, Sr., in the undivided sixth of the real estate upon which the mortgage was given, and, in October of the same year, in virtue of a writ of fieri facias issued in pursuance of the decree of this court in such foreclosure suit, the sheriff of Warren county, where the lands are situate, made sale of the ■undivided sixth to Annie Schaefer.

In the present suit, a partition of the real estate of which •Joseph Schaefer died seized is sought. The bill and answers present the question whether the infant son of Matthew Schaefer now has any interest in the property involved in the suit. It is insisted, in his behalf, that the estate dévised by Joseph Schaefer to his children vested in them, subject to the condition subsequent that if either of them should die before the youngest living child of the testator should become of age, leaving a child or children, then his or her estate would divest, and his or her child or children take in his or her stead, and that as Matthew, Sr., died before that period, leaving a child, Matthew, Jr., him surviving, his estate was divested and his child took the undivided sixth.

If this contention be correct, the mortgage by Matthew Schaefer, Sr., like his estate, was subject to the condition and failed with the divestiture of the title to which it attached.

On the other hand, if the senior Matthew took a vested estate, only the full enjoyment of which was postponed, and the condition upon which the share is to go over relates to the time of the death of the testator, and not to the coming of age of the youngest living child, then, the condition not having taken effect, the mortgage is valid, and all that would have gone by descent to the junior Matthew has passed to the purchaser in-virtue of the foreclosure proceedings.

It is not claimed that the foreclosure decree made title as-against the junior Matthew beyond the cutting off of any equity of redemption he may have had as heir of his father.

It is the settled rule that where there is a bequest or a devise-of the fee to one person, and “ in case of his death ” to another, such and similar expressions are to be confined to the event of death happening before the period of distribution, unless a contrary intention appears, and not to the event of death at anytime. Hawk. Wills 254, 256. Burdge v. Walling, 18 Stew. Eq. 12. In view of this rule, it is necessary to examine the will and ascertain whether the testator specially indicated an intention-as to the time to which this provision for death of a child shall relate. His gift to his children, in the first place, is absolute at his death. Subsequently the complete control and enjoyment of the real estate is postponed until the youngest child shall reach the age of twenty-one years. I think that the estate given by the testator to his children vested in them at his death. The-postponement was merely of enjoyment for a purpose beneficial to his family. Nothing personal to any child induced it. Post v. Herbert’s Executor, 12 C. E. Gr. 540. But the devise was-subject to a condition which withheld from them each an absolute, unconditional fee until a certain period was passed. Which-of two periods was intended is the important question. Did the-testator mean the condition to relate to the death of a child before-the time when the estate vested in his children — that is, at his-death — or did he mean it to relate to the time when they were to have complete control and the absolute power of disposition, over the real estate ?

If he intended that the death should relate to the former time,, the title of his son Matthew vested free from condition, because he survived that time; but if he intended it to relate to the period when his children should have full control and absolute power of disposition, Matthew’s estate vested subject to the condition — that is, of divesting if he failed to survive that subsequent period, leaving issue. Hawk. Wills 237, 241.

It is observed that in framing his will the testator first devised his real estate to his six children in terms which would carry the fee at his death, and then, that he subjected that disposition to the provision that the real estate should not be sold until his youngest living child should reach the age of twenty-one years, ■ and gave his executor the ad interim control of the property in the interest of his children, they being entitled to its income in equal shares. He then provided, in order to expressly terminate the suspension of control, that when his youngest living child should reach the age of twenty-one, his children should “ have -absolute control of said property to do with and dispose of as best to them seems fit and proper,” and immediately followed this complete emancipation with the clause now in question :

“ If any of my children shall die leaving heir or heirs then such heir or heirs shall receive the same proportion as the parent of such heir or heirs •would have received, that is, the parent’s undivided part.”

That the testator means “child” by the word “heir” is manifested by his reference to “ the parent’s” undivided part.

There are two cases in this state which lead to that which I am satisfied is- the proper ascertainment of the effect which the testator intended this clause to have.

The first is Van Houten v. Pennington, 4 Halst. Ch. 372; affirmed on appeal, 4 Halst. Ch. 745. There a testator devised rnnd bequeathed to his son, three years of age, the residue of his ■estate in fee, then directed his executors to rent and invest his propei’ty for the benefit of the son until he should arrive at the age of twenty-one years, meanwhile supporting and educating him, following which direction, as part of the same sentence, wTas this clause: “but if my said son, Abraham Van Houten, ,«should die having no children, then my will is, and I do dispose •of my property in the following manner” &c. — that is, to others.

The son lived beyond the age of twenty-one years, and then ■died without having had or leaving children, and the question arose whether he had taken absolutely. In accordance with the rule already cited it was held that he had. Incidentally the period at which the devise over was to take effect, if at all, was considered. Chancellor Halsted, in this court, indicated his opinion of that period in this language: “ In view of the frame and general provisions of the will and the connection of the particular clause, if the particular clause had been ‘ but if my son should die/ then &c., could there be a doubt that the meaning would be e die under twenty-one ? ’ I think not.”

In the court of errors and appeals Chief-Justice Green, upon the same subject, said : “ By the will the testator devises the residue of his estate, real and personal, to his son absolutely in fee simple by the broadest and most comprehensive terms. He then provides that the whole estate, real and personal, shall remain in the hands of his executors and be managed for the' benefit of the devisee until he is twenty-one. That out of it he shall receive an education and a decent support until he is twenty-one, and then occurs the clause in question, but if he die without children then the estate shall go over. The devise over stands not in opposition to the original devise, but to the event of the devisee’s coming into possession. And upon the principles of grammatical construction, the use of the conjunction between the two members of the sentence (whose office is to express merely the relation and dependence of thought) connects the devise over not solely or mainly with the original devise, but primarily with the time of its enjoyment. Now it is perfectly clear that in order to express fully the testator’s meaning, it is necessary to insert before the clause containing the devise over a provision directing that the devisee should come into the possession of the estate on his attaining the age of twenty-one years. The whole clause would then stand thus: I give the residue of my estate to my son Abraham, his heirs and assigns forever. I direct my executors to rent the real estate, and to keep the proceeds thereof, together with my personal estate, invested for th% benefit of my son until he arrive at twenty-one years of age^r-And my will is that upon his attaining the age of twenty-on^' years my son come into the possession of all his estate, real and personal, but if he die without children, then to go over. It is. true that there is in the will no express direction that his son shall come into possession of his estate at twenty-one, but it is. there by necessary implication. The estate had been devised to. him absolutely. It had been devised to the mother and placed in the hands of the executors until the devisee should attain the age of twenty-one years. The clause is necessary to complete the sense, and to express fully the connection and relation of thought subsisting in the mind of the testator between the original devise and the contingency upon which the devise over is. limited. Standing in this connection, if the clause containing-the devise over had been simply ‘ But if my son die, then over/ there could be no doubt that the devise over was upon the condition of the son’s dying ‘ under twenty-one and without issue.’ ”

The other case is Wurts’ Executors v. Page, 4 C. E. Gr. 365. There the fee of the testator’s entire estate was devised to trustees in trust for eight children and two grandchildren, the latter taking one share between them. The income was to be applied (surplus thereof being accumulated) for the benefit of the several beneficiaries during minority. Three thousand dollars were to go-to each of three of the sons and one grandson at the age of twenty-one, and the balance of their portions as they respectively attained the age of twenty-two years. This disposition was followed by this provision : “ In case of the decease of any of my said children without issue, the share or shares of such so dying-is to be merged in the general fund” <fce. In construing the provision, in answer to the question whether the share of one who had died after reaching the age of twenty-three years was vested free from condition, Chancellor Zabriskie said that no one could read the will without feeling an impression that the general intent of the testator was that his sons, after twenty-two years of age, should have the absolute control of their whole shares, in the same manner as they had the control of the advances of $3,000 to be made to them. He said that he was satisfied that the intention of the testator, apparent on the face of the will, requires the construction that the words mean decease-before the legacies are payable; that the decisions of Chancellor Halsted and of the court of errors and appeals in Van Houten v. Pennington, supra, not only warrant but require such construction. Of the application of that case he said : “ The opinion of the court of errors, delivered by Chief-Justiee Green, holds: ‘ The devise over stands, not in opposition to the original devise, but to the event of the devisees coming into possession.’ In this ■case the will had expressly directed that the shares of the sons .should be paid over as they respectively attain the age of twenty-two years.’ And then the next provision that relates to the sons is the limitation over in case of death. In this case, as in that, :it must be put in opposition, not to the original devise, but to the event of coming into possession. I think the rule in this state is settled and that this case must be ruled by that decision.”

The present case is not so strong as the case of Van Houten v. Pennington in grammatical construction, for here the provision for the estate going over is not part of the same sentence which postpones enjoyment; but in sequence of the testator’s ■thought, manifested by the order of its expression in the will, ■this case appears to me to be fully within other reasons which •led to that decision. In form it is perhaps closer to Wurts’ Executors v. Page.

Here, as in those cases, I think that the provision for the gift ■over immediately succeeding, as it does, the full and final emancipation, stands in opposition to the event of the children coming into control and possession and not to the original devise to them.

I am of opinion, therefore, that the estate which Matthew, ‘Sr., took was divested upon his failure to survive the time when ■Catherine became of age, and that Matthew, Jr., is now entitled .to the undivided sixth in question.


text:
    Anonymous.
    Where a wife continues to live with her husband and perform her household duties, but withdraws from sexual intercourse with him, she does not willfully, continuedly and obstinately desert him, within the meaning of the statute, so as to entitle him to a divorce a vinculo matrimonii.

    On exception to master’s report advising that a petition for-divorce be dismissed.

      Mr. Gilbert Collins, for the petitioner.
   The Chancellor.

The petitioner and defendant were married in 1871, and from-that time until 1890 lived together as husband and wife. In April, 1890, upon the occasion of a disagreement, at which the husband, as he says, merely scolded her,” the wife withdrew from his bed and declared that she would never occupy it with him, again. She thereupon removed to the front or sitting-room of the two apartments they occupied in a boarding-house, locked-' the door between the apartments and made her bed-room there-until July, 1892, when she took board at another place.

I find that during the time in question, although the communications between the husband and wife were rude and severely constrained, they nevertheless admitted of indirect consultations, concerning the needs, comfort and welfare of their two daughters-who were away at school. The wife also cared for their rooms and linen and the husband gave her money for her wants and paid her board. They appeared at meals at the same time and at the same table, so that their disagreement did not manifest itself to other boarders in the house.

The petition was filed early in the year 1893, and alleges as ground for divorce a willful, continued and obstinate desertion by the husband for two years.

To cover that statutory period the petitioner seeks to include a portion of the time prior to July, 1892, and hence the question. is presented, whether the withdrawal of a wife from sexual intercourse with her husband, assuming that there was no just cause for the withdrawal, alone constitutes desertion within the meaning of the statute.

A single word as to a suggestion of acquiescence on the part •of the petitioner. It does not appear that he, with determined •earnestness, ever sought the restoration of his marital rights. He appears rather to have submitted to the position in which his wife’s determination placed him, acting as one who, for cause, acquiesces in the justness of a decision against him, basing whatever feeble effort he may have made in that direction upon consideration for their children.

Upon her part, on the contrary, the attitude appears to be one •of distress, and yet filled with consciousness of power which the right gives, enabling her to fearlessly demand her support from him.

I think, however, that this appearance of acquiescence of the husband rests too largely upon inference and conjecture to be made the basis of á decision. I prefer to assume that there was no acquiescence and to meet the question first stated.

I have read with interest the elaborate argument of Mr. Bishop, in his work on Marriage, Divorce and Separation (vol. II. § 1676 et seq.), in favor of an affirmative answer to this question as the better opinion,” but I am unwilling to accept it as the true construction of our statute. The word desertion,” I think, is •used in the sense of abandon,” to the extent that the deserted party must be deprived of all real companionship and every substantial duty which the other owes to him or her.

It would, I think, degrade the marriage relation to hold that it is abandoned when sexual intercourse only ceases. The lawfulness of that intercourse is perhaps a prominent and distinguishing feature of married life, but it is not the sum and all of it. The higher sentiment and duty of unity of life, interest, sympathy and companionship have an important place in it, and the thousand ministrations to the physical comforts of the twain by each in his or her sphere, in consideration of the marriage obligation and without ceaseless thought of pecuniary recompense, fill it up. These latter factors may possibly, to some ■extent, exist in other relations of life, but not in completeness. They are all necessary to the perfect marriage relation.

My opinion is, that our statute means that divorce may be had when substantially all of these duties and amenities shall have been abandoned by the guilty party willfully, continuedly and obstinately for two years, and not until then. In other words, the desertion must be complete, not partial; and when the party accused remains in discharge of any duties which rise in value above mere pretence and form, the desertion which the statute contemplates does not exist. This I understand to be the meaning accorded to the word desertion ” in the statute of Massachusetts. Southwick v. Southwick, 97 Mass. 327; Magrath v. Magrath, 103 Mass. 577; Cowles v. Cowles, 112 Mass. 298.

In the present case, I find that within two years prior to the filing of the petition the defendant did remain with her husband in the discharge of at least a substantial portion of her duty to him.

I will sustain the master in his conclusion and dismiss the petition.


text:
    Ellen P. Cook, Lewis S. Cook and William W. Smalley, surviving executors of the last will of Lewis D. Cook, v. Maggie V. D. McDowell et al.
    1. L. D. C., by his will, directed liis executors to sell his real estate and invest the sum of §20,000 for the benefit of his wife for her life, the principal, at the death of the wife, to be divided in the same manner as the residue of his estate. He then devised and bequeathed the residue of his estate to his six children, share and share alike, adding this language: “ In case any of my said children die before receiving their share, leaving issue, then I give, devise and bequeath to such issue the share the parent would have taken if. living.”

      2. F. H. C., a son, survived his father, but died without issue before he came into actual possession of any part of his father’s estate. — Held, that he-took a vested estate in one-sixth part of the residue of his father’s property, which passes by his will.
    On bill &c.

      Mr. Henry C. Suydctm, for the complainants.
   The Chancellor.

The object of the bill is to secure a construction of a portion of the will of Lewis D. Cook, deceased.

Mr. Cook, domiciled at Bound Brook, in this state, died on the 25th of November, 1891. By his will, dated the 28th day of March, 1887, after appointing the executrix and executors of his will, directing the payment of his debts and funeral expenses, bequeathing to his widow his household goods, clothing and a policy of life insurance, and devising to her a dwelling-house for her life, he continued his will in this language:

“ Fourth. I do hereby order and direct my said executors and the survivors or survivor of them to grant, bargain, sell and convey any or all of my lands and real estate to any person or persons in fee simple or otherwise at public or private sale at such times and upon such terms as they shall think for the best interest of my estate.
Fifth. I do hereby order and direct my executors or the survivors or survivor of them to invest and re-invest when necessary and in such manner and on such security as they may determine the sum of twenty thousand dollars (§20,000) and to pay the interest accruing thereon semi-annually to my wife for and during the period of her natural life and after her death the said twenty thousand (§20,000) dollars to be divided in the same manner as the residuum of my estate.
Sixth. I give, devise and bequeath all the rest and residue of my property both real and personal to my six children, Emma S. Cook, wife of William W. Smalley; Ella P. Cook, Lewis S. Cook, Laura K. Cook, Frederick H. Cook and Jessie M. Cook, to be divided equally among them share and share ■ alike, to them, their heirs and assigns forever, in case any of my said children die before receiving their share leaving issue then I give, devise and bequeath to such issue the share the parent would have taken if living.”

The testator’s wife and children survived him. On the 3d of May, 1893, before there was any distribution of the father’s-estate, Frederick H. Cook, one of the children, died without leaving issue, having duly made a will, in and by which, among other things, he gave and devised one-half part of all the residue of his estate, real and personal, to his affianced wife, Maggie V. D. McDowell, and the remaining half part of such residue to his three unmarried sisters, Ella, Laura and Jessie.

The complainants desire to be instructed what disposition shall be made of the share which was apportioned to Frederick H. Cook by his father’s will.

The executors of the will of Frederick and the surviving brother and sisters and Maggie V. D. McDowell are made the defendants in the suit.

There is no gift over in the event of any child dying without issue. The gift over depends solely upon the happening of the contingency that one of the class to whom the residue of the estate is given shall die leaving issue before he or she shall take. The intention of such provision is to protect the issue. If the parent shall once take, his will or the law will give proper direction to the property. The words “before receiving” were inserted, I think, in contemplation of this intention, and used in the sense of vesting in right, rather than in the sense of being had in actual possession.

, The devise and bequest of the residue is, in present language, as of the time when the will first speaks, the time of the testator’s death. It does not contain any expression of purpose to postpone enjoyment. All there is of postponement is in the previous setting aside of $20,000 for the benefit of the widow for life, which, in fact, delays enjoyment of that part of the estate by the children until the widow’s death. But that postponement is not because of anything personal to the children. It is merely to let in another temporary interest. It is not annexed to the substance of the legacy to the children. The rule in such cases is, that the legacy vests at the death of the testator. Bonnell v. Bonnell, 2 Dick. Ch. Rep. 540, where the leading cases of this state supporting this rule are cited.'

I am of opinion that Frederick H. Cook took a vested estate in the whole residue at his father’s death, which he could lawfully dispose of by his will. The complainants will be instructed accordingly.


text:
    Warren D. Haggerty and Merritt L. Hockenberry, executors of the will of John Haggerty, deceased, v. Walter W. Hockenberry et al.
    H., by his will, devised and bequeathed the residue of his estate to the children of his son W., “ that he now has or may or shall hereafter have, and if his last child should be unborn at the time of his death, to include that one," in equal shares, and directed that the same should be held in trust and invested by his executors, and that as the “said" children of his son should arrive at the age of twenty-one years they should be paid their respective shares, with the interest that should accrue thereon. — Held, that the grandchildren living at the death of the testator took vested interests, subject to open and let in their after-born brothers and sisters, payable to them when the entire class of takers shall be determined, and as they respectively reach the age of twenty-one years.

      On bill to construe will, answer for infant defendants and proofs.

      Mr. James F. Conklin, for the complainants.
   The Chancellor.

By his will, dated September 23d, 1888, and admitted to' probate in February, 1892, John Haggerty bequeathed $5,000 each to his daughter, Emma Elizabeth Hockenberry, and his son, Warren I). Haggerty, and then, among other things, made the following provisions:

“Fifth. I give and bequeath unto the children of my said daughter, Emma Elizabeth Hockenberry, that she now has and may or shall have at the time of her death, the sum of two thousand dollars, to be equally divided between and among them share and share alike — to them, their heirs, executors, administrators and assigns, absolutely, forever.
Sixth. All the residue of my property and estate, whatever the same may be and wherever the same may be, I give, bequeath and devise unto the children of my said son Warren D. Haggerty, that he now has and may or shall hereafter have, and if his last child should be unborn at the time of his death. to include that one, to be divided equally among them share and share alike — to them, their heirs, executors, administrators and assigns, absolutely, forever.”

The testator then directs that his land shall be converted into money within eighteen months after his death, and proceeds as follows:

Eighth. I do hereby make, constitute and appoint my said executors, and the survivor and successor of them, trustees and trustee to hold in trust for my said grandchildren what I have given, bequeathed and devised to my said grandchildren; to keep the same at interest upon such security or securities as my said executors, or the survivor or successor of them, shall deem safe and responsible, and pay to my said grandchildren, respectively, what I have given, bequeathed or devised to them, with the interest that shall accrue thereon, as they each shall arrive at the age of twenty-one years.
Ninth. I leave it to the good judgment and discretion of my said executors, or the survivor or successor of them, whether it will be necessary and expedient for any share, bequest or devise that I have given to any of my said grandchildren, or any part thereof, to be paid and used for the tuition, education, books, board, clothing, doctor bills and maintenance, or any of them, of or for any of my said grandchildren before they shall be twenty-one years of age; and if they, my said executors, or the survivor or successor of them, shall think and believe it to be necessary and expedient for the benefit and advantage of my said grandchildren or any of them, before they, or any of them, shall be twenty-one years of age, to pay any of their respective shares or bequests that I have given them, or any part thereof, for the purpose, object or end aforesaid, then I order and direct my said executors, or the survivor or successor of them, to pay from time to time such part and parts of the respective shares and bequests that I — given to my said grandchildren, as they, my said executors, or the survivor or successor of them, shall think and believe to be necessary and expedient for the purpose, object and end aforesaid before my said grandchildren, or any or all of them shall be twenty-one years old, and take receipts, respectively, from the respective persons to whom they, my said executors, or the survivor or successor of them, shall pay, for the sums respectively they shall pay, which shall be to them, or the survivor or successor of them for the amount they or the survivor or successor of them shall have paid of the respective shares and bequests that I have given to my grandr children aforesaid; and when my said grandchildren respectively arrive at the age of twenty-one years deduct from the share or bequest of each one for whom anything shall have been paid for the purpose, object and end aforesaid, the amounts, respectively, that shall have been paid of each one’s share or bequest that I have hereinbefore given to my said grandchildren, then pay the respective balance of said shares or bequests, if any there be.”

The testator’s daughter, Emma Hockenberry, was born on the 30th of August, 1846, and now has two children, Walter W. Hockenberry, born April 24th, 1878, and Merritt L. Hoekenberry, born November 4th, 1885. His son, Warren D. Haggerty, was born on the 15th day of January, 1853. He has six children — John I)., born June 22d, 1873; Joseph L., born July 24th, 1875; Merritt L., born August 8th, 1877; Warren D., born August 22d, 1879 ; George, bom November 24th, 1881, and Deane S., born December 18th, 1887.

The eldest of these grandchildren is now twenty-one years of age. The complainants ask instruction whether the grandchildren are entitled to be paid their respective shares as they severally reach the age of twenty-one years, and, if they are to be so-paid, what proportion of the several funds shall go to each; also, whether the complainants may advance for necessities of the present living grandchildren under twenty-one years of age, and if so, how much they may advance.

The intention of the testator, as manifested in the fifth and sixth paragraphs of his will, unmistakably was that all his grandchildren, not only those born at his death but those thereafter to be born, should respectively share in the funds he created.

The provision in the first of those paragraphs for his daughter’s children expressly includes not only the children she now ” has — the will speaking as of the death of the testator — but also those she “ may ” or shall ” have “ at ” the time of her death.

To digress for a moment, I am of opinion that the word at,” referring to the death of the daughter, is used by the testator in the sense of the word “ until,” the class intended being all of his daughter’s children. If the word “at” should be taken literally, it is to be noted that the class would consist of the two children living at the testator’s death and only such children in addition as should survive the mother. From the fact that the testator does not subject the existing children to the contingency of their failure to survive their mother, and from the fact that his son’s after-born children are not subjected to such a contingency under similar provision, I am of opinion that he did not mean to subject any of the children of his daughter to the contingency, and hence that the word at ” was used in the sense of the word “ until.”

The intention to include all future grandchildren is even more marked in the sixth paragraph. There the presently-existing children and all children that the son may or shall hereafter have” are expressly included, and, in anticipation of question whether the language is comprehensive enough to include a child born after the son’s death, emphasis is given to the purpose that all the son’s children shall take by expressly including one who may be so born.

The shares in the respective funds to the grandchildren are to be equal, share and share alike.”

The uncertainty of the complainants grows out of the provision which dominates the eighth paragraph, and appears to them to express an intention of the testator which cannot have effect if payments be deferred until the whole class of the participants in each fund shall be ascertained. That provision is, that each grandchild, as he or she shall arrive at the age of twenty-one years,, shall have his or her share of the principal, with accumulations of interest. The same intent also appears in the ninth paragraph, ihe leading design of which is to authorize assistance during the minority of the respective cestuis que trustent, by repeated reference to the period when they shall arrive at the age of twenty-one years as the time when they shall come into possession of their shares.

Under the proofs in the case this situation is now presented : John D. Haggerty has arrived at the age of twenty-one years. His father is alive and forty-one years of age, and for aught that appears to the contrary he will have other children. Is John now to be paid a share of the fund in which he is interested? And is that share to be ascertained by dividing the whole fund by the present number of the children of Warren D. Haggerty, or shall the fund be retained in trust until the death of Warren D. Haggerty or some accident shall determine the number of members in the class to which John belongs and furnish a divisor for the ascertainment of each share ?

If the intention of the testator that children to be born by his daughter and to his son during their whole lives were not so expressly pronounced and clear, there might be justification, in the terms of the eighth paragraph, for holding that the limit of future births is the time when the eldest child of a class shall reach the age of twenty-one years, the period when the distribution would commence, upon the reasoning of the cases cited in 2 Wms, on Exrs. 1090 and the note to Andrews v. Partington, 3 Bro. C. C. 401 (Perkins’ ed.); but under such a holding the testator’s primary intention, which is carried into the eighth paragraph by the use of the word “ said,” in referring to the takers, could not have effect. It is clear that he intended not to exclude any of his grandchildren, and is not entirely clear that he intended that the shares of the several grandchildren are to be taken at twenty-one, notwithstanding the whole class of takers should not then be ascertained. To give effect to this unquestionable primary intent, the subsequent provision for payment at twenty-one, I think, should be read in its light, and, if possible, reconciled with it. And I think that such a reconciliation is not only possible but reasonable. It is this: After the whole class of takers shall be ascertained, as each member reaches the age of twenty-one years he or she shall receive his or her share. Such a construction appears to me to be the only one which will preserve the integrity of the will. It is true that it postpones the enjoyment of the several interests, but, at the longest, such postponement is not for ■ more than a life in being. Such a delay is not unusual, and it is not so grievous a hardship or inconvenience as to justify the repudiation of the testator’s direction that all of his grandchildren shall participate respectively in the funds he provides. In course of nature the takers of one of the funds may be ascertained before the expiration of a life (Male v. Williams, 3 Dick. Ch. Rep. 33), and accident may lead to similar ascertainment of the takers of the other fund. This is not a case in which an inconsistency of interests is so plainly manifested as to justify the court in adopting that which is considered the most convenient or leading intent, as in the case of Andrews v. Partington, 3 Bro. C. C. 401, or hi the case of Howland v. Howland, 11 Gray 469. It is rather a question of hardship which is not allowed to control the construction of the will. Defflis v. Goldschmidt, 1 Meriv. 417; S. C., 19 Ves. 566.

It is to be observed that the gift to the grandchildren is immediate in right, the enjoyment only being postponed. A trust is created merely to afford the estate protection during such postponement. Payment in the future is directed, not because of anything personal to the recipients of the bounty, but to sub-serve the ascertainment of each entire class and to permit the recipients to reach a mature age before they shall take possession of that which belongs to them. The interests vest at the testator’s death (Post v. Herbert’s Exr.; 12 C. E. Gr. 540), subject to open and let in after-born members of the respective classes. Ward v. Tomkins, 3 Stew. Eq. 3; Male v. Williams, supra; Dingley v. Dingley, 5 Mass. 535; Annable v. Patch, 3 Pick. 360; Ballard v. Ballard, 18 Pick. 41; Moore v. Weaver, 16 Gray 305.

The most serious inconvenience in the interpretation which I have given to this will may arise under the ninth paragraph, for it will be so difficult for the executors to safely limit advances under the authority conferred in that section as to render the use of their power, prior to the ascertainment of the whole number of members of the respective classes, extremely perilous. The power extends to the disposition of the whole of the several shares, principal as well as income, yet it must be so exercised that no other share will be impaired or exhausted, either in principal or interest, for each share, with the interest that shall accrue thereon, is to be ultimately paid to its owner. Under the terms of this will, I do not deem it possible to hold that income may be divided from time to time among grandchildren in esse,. as in Morrison v. Morrison’s Exr., 1 McCart. 330.

The complainants will be instructed not to pay John D. Haggerty any portion of the fund in which he is interested at present. Further instruction is not shown to be necessary at this time.


author: Van Fleet, V. C.

text:
    John Illingworth v. Alfred Rowe and The Newark Lumber Company.
    1. To state a case of strict interpleader, the complainant must show that conflicting claims are made against him by two or more persons for the same thing; that he has no interest in the subject-matter of their controversy, and that the title to the thing in dispute is in some of the hostile claimants, but he cannot tell which; and all the relief he can ask is that, on the surrender of the thing in dispute, his liability shall cease, and that thereupon the hostile claimants be required to settle their dispute among themselves.
    2. But under a bill in the nature of a bill of interpleader the complainant has a right to ask for active affirmative relief; as, for example, where there is a dispute between two or more persons as to which is entitled to a mortgage debt, the mortgagor may file a bill to procure a decree, adjudging which of the hostile claimants is entitled to the debt, and that, on its payment, the mortgage shall be surrendered to him for cancellation.
    3. And so where a house has been erected for a landowner under a written contract, which has been filed, and before the payment of the whole of the contract price, a dispute arises between the contractor and a person who has furnished material, which has been used in the construction of the house, as to who is entitled to the balance of the contract price, in consequence of which the owner is placed in a position where he may be compelled to pay the same debt twice, the owner may file a bill, in the nature of a bill of interpleader, to have it determined to whom he shall pay the balance remaining in his hands, and that, on such payment being made, all right of lien against his house and land shall become extinct.
    On demurrer.

      Mr. Frederieh F. Guild and Mr. Edward M. Colie, for the demurrants.

      Mr. David A. Ryerson, for the complainant.
   Van Fleet, V. C.

This is an interpleader suit. Two of the defendants have demurred to the bill for want of equity. As a bill of strict inter-pleader I do not think the bill can be sustained, but if it be considered as a bill in the nature of a bill of interpleader, then I think it must be held to exhibit a case which clearly entitles the complainant to relief. Not relief of the kind now asked, but such relief as the court may, under a bill in the nature of a bill of interpleader, grant upon the facts admitted by the demur-rants. To state a case of strict interpleader it is necessary for the complainant to show that conflicting claims are made against him for the same thing by two or more different persons, to aver that he has no interest in the subject-matter of their controversy, and also admit that the title to the thing in dispute is in some one of the conflicting claimants, but in which he is unable to decide. He cannot ask for affirmative relief against either of the hostile claimants, but must content himself with simply praying, that they be required to cease from troubling him, and to settle their dispute, by some appropriate judicial proceeding, among themselves. But, as is said by Judge Story, both in his commentaries on Equity Jurisprudence and Equity Pleadings, “ there are many cases where a bill, in the nature of a bill of interpleader, will lie by a party in interest to ascertain and establish his own rights, where there are other conflicting rights among third persons.” Among the instances which he gives, in which it is proper to have recourse to this remedy, is this :

“ If a mortgagor wishes to redeem the mortgaged estate, and there are conflicting claims between third persons, as to their title to the mortgage money, he may bring them before the court,- to ascertain their rights, and to have a ■decree for a redemption, so that he may make a secure payment to the party •entitled to the money.” 2 Story Eg. Jur. $ 824; Story Eg. PI. I 297 b.

In such a case, if the complainant prevails, he gets affirmative relief — a decree that, on the payment of the mortgage debt, the mortgage shall be surrendered to him for cancellation.

Briefly stated, the case made by the bill is thus: The defendant Rowe made a contract to erect three houses for the complainant for $2,550 for each, the contract price of each to be paid in three installments, as the work on each reached a specified stage in the course of completion. Rowe agreed to furnish all the material and do all the work, and have the houses completed on or before February 1st, 1893. The contract was filed. Rowe made a subcontract with one George Bopp, for the erection of the houses. After one of the houses had been completed and the contract price for that had been fully paid, and two installments of the contract price of the other two had also been paid, both' Rowe and Bopp quit work on the remaining two, leaving-them in an unfinished, state. The complainant then, after giving-Rowe the notice required by the contract, procured material and workmen and completed them himself. On July 13th, 1893, the complainant and Rowe had an accounting to ascertain the-balance remaining due under the contract, and agreed that such balance was $1,566.31. Of this sum the complainant paid Rowe $897.36 and retained $668.95. Prior to the accounting,, the Newark Lumber Company had given the complainant written notice that it had furnished to Bopp material of the value-of $668.95, which had been used in the construction of his-houses, and for which it had not been paid. A written memorandum of the accounting and settlement was made, and signed by the complainant and Rowe, in which it is stated that the $668.95 is retained by the complainant on account of an alleged claim of the Newark Lumber Company, for materials furnished for the complainant’s. houses, of which the Newark Lumber Company had given the complainant notice, but which Rowe disputed. The memorandum then says:

“ The said John Illingworth is to file immediately, in the court of chancery-of New Jersey, a bill of interpleader, and pay the said sum of §668.95 into-court; but the said Alfred Rowe does not consent or admit that the case is a proper one for a bill of interpleader, and reserves all rights of action, and all rights to plead, demur or answer said bill of interpleader, which he would have had had this settlement not been made.”

The bill further alleges that the Newark Lumber Company has not been paid for the material which it furnished to Bopp, and which was used in the construction of the complainant’s houses; and also -that it has not released any right which it acquired by furnishing the material; and also that it claims that the debt which was created by the use of its material in the construction of the complainant’s houses, may, by force of the statute, be made a lien on the complainant’s buildings and land ; and also that it threatens to file a lien claim for such debt against • the complainant’s buildings and land, and institute a suit to enforce its payment.

This summary of the bill shows that the material facts admitted by the demurrants ave, first, that the Newark Lumber Company furnished material which was used in the construction of the complainant’s houses, and which has not been paid for; second, that whatever right the Newark. Lumber Company acquired by furnishing the material so used has not been released, but still remains in full vigor, and also that, prior to the accounting between the complainant and Rowe, notice in writing had been given by the Newark Lumber Company to the complainant that it had furnished material, which had been used in the construction of his houses, for which it had not been paid; third, that the complainant still has in his hands sufficient money, earned under the contract, to pay for the material which was furnished by the Newark Lumber Company and used in the construction of the complainant’s houses; and fourth, that the Newark Lumber Company intends to enforce its debt for the material so furnished by filing a lien against the complainant’s, buildings and land and bringing suit thereon.

The rights and duties of the parties to this litigation are prescribed by the Mechanic^’ Lien law, as amended by the act of 1892. P. L. of 1892 p. 858. The great object intended to be accomplished by the Mechanics’ Lien law is to secure to any person, who does work in the construction of a building or who. furnishes material for its construction, pay for the work so done and material so furnished. To effect this object, workmen and materialmen are given, either a right of lien against the building and the land whereon it stands, or a right to pursue, and have appropriated to the payment of their debts, the money which is-earned in the construction of the building, when it is erected by a contractor, under a written contract, which is made a matter of public record. Assuming the primary purpose of the Mechanics’ Lien law to be what it has just been described to be, it will not be necessary to consider, in this discussion, any part of that law except the act of 1892. That act, in substance, declares, that when a building is erected under a contract in writing, which shall have been filed in conformity to the direction of the statute, no person shall have the right of lien given by the statute, except the contractor, provided, that when the owner pays any part of the contract price, the contractor delivers to the owner a release, executed by all persons having a right of lien, releasing their lien, together with an affidavit, made by the contractor, declaring that no other persons, than those named in the release, have furnished any material for or done any work on the building for which a lien can be claimed. And the statute then, in substance, says, that any payment made upon the presentation of such release and affidavit shall be a full and complete bar to any and all right of lien for work done or materials furnished prior to the date of such release, except as to any person, not mentioned in such release, who may, prior to the making of such payment, have given notice to the owner that he has done work or furnished material for such building.

It is manifest that the things which this statute requires to be done, in order to deprive the Newark Lumber Company of its right to a lien, or to such part of the money earned under this contract as will be sufficient to pay its debt, have not been done. It has released naught. It is undisputed, that prior to the settlement, and while the complainant still held over $1,500, earned under the contract, it gave him the notice required by the statute to preserve its right of lien, and that he, in obedience to such notice, still retains sufficient money, earned under the contract, to pay its claim. The money was retained with the express assent of Rowe. He also expressly assented to its payment into this court. I shall not stop to consider, whether or not, while this money remains in court or in the hands of the complainant, the Newark Lumber Company can successfully assert a right of lien against the complainant’s buildings and land. He, and not the Newark Lumber Company, is the person who is seeking protection. He admits that he owes somebody a debt for which a lien may be claimed. He is willing to pay that debt once but not twice, and he asks to be protected against the injustice of being compelled to pay it to two different persons. It is certain that if he pays'Rowe the $668.95, whether he does, so voluntarily or under compulsion, the Newark Lumber Company may, under the act of 1892, file a lien against his buildings and land.

The counsel of Rowe contended, earnestly and with apparent sincerity, that if the complainant has incurred a double liability for this debt, such liability is the result of his own negligence. And the negligence he imputed to the complainant consisted in the fact, that the complainant after the accounting, and without first requiring Rowe to deliver the release and make the affidavit-required by the act of 1892, paid to Rowe all the money that was foimd, by the accounting, to be due under the contract, except a sum sufficient to pay the debt of the Newark Lumber Company. But it is impossible for me to see how the complainant’s conduct, in this respect, can, in any sense, be regarded as negligent or otherwise faulty. I think, on the contrary, that his conduct was sufficiently cautious to give him the protection he was entitled to against the conflicting claims asserted by Rowe and the Newark Lumber Company and also eminently liberal towards Rowe. Rowe certainly has no right to complain because the complainant paid him money, which was not in dispute, but which he could not have been compelled to pay until all persons having a right of lien had released such right. In my judgment, it would be a dull and distorted sense of justice which would impose a double liability on a citizen because he had waived a legal advantage, which was hot necessary to his protection, and dealt liberally with another citizen. The complainant, without fault on his part, is in a position where he may be compelled to pay the same debt twice. Equity will not leave him in that position. If no remedy for such a wrong existed, it would be the duty of a court of conscience to invent one. The complainant’s position is substantially like that of a mortgagor whose land is subject to a mortgage, which he wants to pay, but which he cannot safely pay because different persons make conflicting claims to the mortgage debt. In that case, it is settled, as has already been stated, that the mortgagor may file a bill, in the nature of a bill of interpleader, in order to have a determination as to whom the mortgage debt shall be paid, and also for affirmative relief, adjudging that, on payment being made, the mortgage shall be surrendered for cancellation. Railroad Co. v. Clute, 4 Paige 384, 392; Wakeman v. Kingsland, 1 Dick. Ch. Rep. 113, 116; Aleck v. Jackson, 4 Dick. Ch. Rep. 507, 509; 8 Story Eq. Jur. § 824; Story Eq. Pl. § 297 b. And so too, the purchaser of land, who takes possession and makes permanent improvements before acquiring title by deed, and before the payment of the purchase-money, and then a dispute arises as to whether the title of his vendor is not void as against the creditors of the person who conveyed to his vendor, may file a bill, in the nature of a bill of interpleader, to have it determined to whom he shall pay the purchase-money, and what, on the payment of the purchase-money, shall be done to invest him with a good title' to the land. Parks v. Jackson, 11 Wend. 442, 450; Story Eq. Pl. § 297 b; 3 Story Eq. Jur. § 824-

As is obvious, the case made by the complainant’s bill comes directly within the principle established by these authorities. On the case as it now stands, the complainant is entitled to relief, and the demurrers must, therefore, be overruled.


text:
    The National Docks and New Jersey Junction Connecting Railway Company v. The United New Jersey Railroad and Canal Company and The Pennsylvania Railroad Company.
    1. When a railroad corporation attempts to acquire land by the exercise of the power of eminent domain, compensation, either' actual or constructive, must precede appropriation.
    2. A railroad corporation, incorporated under the General Bailroad law, can, in no case where payment into court must precede appropriation, acquire a right to take possession of the land condemned until it has paid the con■demnation money into court in such manner that the court acquires, the instant that the payment is made, complete control over the money for all purposes.
    3. Payment to the clerk of the court in such a case, in the absence of an order or rule, is not a payment into court. The clerk has no authority to receive money for the court without a rule.
    4. When a statute directs that money shall he paid into a particular court, without designating a person to receivfe and where the money shall be placed for safe keeping, the duty of making such designation is necessarily imposed on the court, and the court must then look into the matter and decide who shall be authorized to receive the money and where it shall be placed for ■safe keeping.
    5. Land taken by the exercise of the power of eminent domain, under the General Railroad law, must he held to be unalterably limited to the land particularly described, and its area can in no case and under no circumstances be •extended or enlarged by construction.
    6. A grant acquired by a railroad corporation by 'the exercise of the power of eminent domain, should not he enlarged or extended by inference or implication. With respect to such grants, the rule of construction should be, that whatever is not granted by express words must be understood to have been withheld.
    On application for an injunction. Heard on bill and affidavits and answer and affidavits and cross-bill and replication.

      Mr. Charles L. Corbin and Mr. John R. Emery, for the ■complainant.

      Mr. James B. Vredenburgh and Mr. Joseph D. Bedle, for the ■defendants.
   Van Fleet, V. C.

This is an application for a mandatory injunction. The litigants are railroad corporations. The complainant was incorporated under the General Eailroad law. By its bill it alleges that it has acquired, by condemnation, a right to construct an underground crossing, through the lands of the defendants, at a point in Jersey City where, in addition to the tracks constituting a part of the defendants’ main line, more than twenty other tracks have been laid for the storage of passenger cars when not in use; that it desires to commence work at once in constructing such crossing, by making a deep excavation under the three storage tracks lying farthest to the south, and called tracks Nos. 1, 2 and 3, and that the defendants, to prevent it from constructing such crossing, have placed cars on these three tracks at the point where the excavation must commence, and have also, after written request, refused to remove them. Tlie bill also alleges, that it is the intention of the defendants to keep cars constantly on the tracks at the point of crossing, and by that means prevent any excavation being made there, unless the complainant will take the risk of the cars falling into the excavation and killing- or maiming its workmen. To remedy the wrongs the defendants are thus committing, the court is asked to compel them to remove the cars, standing over the crossing, in such manner, from time to time, as .will enable the complainant to construct its crossing expeditiously and with safety, and also to enjoin them from doing anything which will prevent or obstruct the complainant from the full and fair exercise of its rights. The defendants deny that the complainant’s proofs show that it has acquired a right to enter upon and take possession of their land at the point where it claims a right to construct a crossing.

No- principle of legal right and duty is better settled in this state than that which declares, that when a railroad corporation attempts to acquire land by the exercise of the power of eminent domain, compensation, either actual or constructive, must precede appropriation. The constitution so ordains. As the complainant was organized under the General Railroad law, it has only such rights and powers as that lawgrants. That law expressly declares, that no company incorporated under it shall take possession of any land taken by it, by condemnation, until it shall have first made compensation, but, that after what must be considered as just compensation in the particular case has been finally determined, in either of the modes .pointed out, the condemning company shall, on making tender of the amount ascertained by such determination, and in case the same is refused, on paying it into the circuit court of the.county wherein the land taken lies, “ be empowered to enter upon and take possession of the said land and proceed with the work of constructing its road.” Rev. p. 9S9 § 101. There can be no doubt, that the legislative design, in incorporating this provision in the General Railroad law, was to render tender and refusal and payment into court, a constructive payment, and to give such a payment the same legal effect as would result from an actual payment. The sum which must be regarded as just compensation, for the land taken in this case, has already been finally determined, so far, at least, as to invest the complainant with a right, on tender and refusal of the money and its payment into court, to take such possession of the land as may be necessary to enable it- to proceed with the construction of its road thereon. And the sum so ascertained has been tendered and refused. So far I regard the complainant’s case free from doubt or dispute. But the question in contest is, has the other prerequisite of the statute been performed ? Or, stated in another form, had the condemnation money been paid into the circuit court when the complainant filed its bill ? On this point, the bill, after alleging that both parties appealed from the award of the commissioners, and that a trial by jury had been had and a verdict rendered, on which judgment had been entered against the complainant for $95,000, says:

“ Your orator, on the first day of November, 1893, duly tendered payment of said sum, with interest from said twenty-third day of October, 1893, to the said owners, and payment having been refused, forthwith duly paid said sum. and interest to the clerk of the Hudson circuit court.”

The manner in which this payment was made is stated with greater particularity in an affidavit made by one of the complainant’s engineers. After stating that he was present when the tender was made and refused, he says:

“ I then went with Mr. Dickinson [Mr. Dickinson is the person who made1 the tender] to the county clerk’s office, and sa^r him, on the same day, pay to* the deputy clerk, in charge of the office, the same sum, receiving his receipt therefor.”

Now, unless paying money to the clerk is, under this statute, paying it into court, it is manifest that the payment made by the complainaut in this case was wholly unauthorized, just as much so as if it had been made to the sheriff or any other officer of the court. The clerk is not the court; he is simply its scribe and custodian of its records. He is not the agent of the court, nor has he any authority to act for or represent the court in its absence. In the discharge of its judicial duties, a court can have no agent or representative. The clerk of the circuit court does not possess the least shred of judicial power. He has no power to decide what is money, nor in what circulating medium payment in such a case must be made, whether in coin or currency. For anything that appears to,the contrary, this payment was made to the clerk, not in the presence of the court, but in its absence and without its knowledge, and without any order or rule being entered on its minutes, or other record being made; and also without notice to the defendants, in their absence and without their knowledge. The money in such cases represents the land taken — it is the thing which the law substitutes for the land, and the thing which must be put into court is that .thing which the law has legalized as money. It would seem, therefore, to be entirely clear, that the object of the legislature in directing that the money should be paid into the circuit court, was to give that court complete jurisdiction over Jhe whole matter, namely, to see that the proper sum in legal money was paid to a person authorized by the court to receive it, also to make provision that the money should be safely and securely kept until a final disposition of it is to be made, and that when it is ordered to be paid, to see to it that the order directs that payment shall be made to the person who was entitled to the land taken. It is the payment of the money into court that confers upon the condemning company the right of appropriation, and as the money represents the land over which the right of appropriation is acquired, the court must, in making a final disposition of the money, treat it as if it were land, and order it to be paid to the person who 'was entitled to the land. Ross v. Adams, 4 Dutch. 160; S. C. on error, 1 Vr. 505. This interpretation of the statutory provision under consideration makes it plain, as I think, that a railroad corporation, incorporated under the General Railroad law, can, in no case where payment into court must precede appropriation, acquire a right to take possession of the land condemned until it has paid the condemnation money into court, in such manner that .the court acquires, the instant that the payment is made, complete control over the money for all purposes. In my judgment, to accomplish the legislative design, the money must be paid in the presence of the court or under its authority, the indispensable requisite being, that when the money passes from the hands of a condemning company, it shall go into the hands of some person whom the court has authorized to receive it, either" by special ■order or general regulation. The power of the court to designate the person to receive the money and to prescribe how it ■shall be safely kept is, in my judgment, unquestionable and absolute, and may be so exercised as that the clerk shall neither handle nor touch the money.

It has long been settled, that when the defendant in a suit at law desires to pay the sum which he admits to be due, into ■court, in discharge of his liability to the plaintiff, he can only do so under an order or a rule of the court in which the suit is pending, and that a payment to the clerk, in such a case, in the absence of an order or a rule, is not a payment into court. The usual statement of this doctrine is, that the clerk has no authority to receive money for the court without a rule. The supreme ■court of this state has recently enforced this doctrine. Levan v. Sternfield, 26 Vr. 41. Among the cases cited with approval, by Mr. Justice Reed in delivering the opinion of the court in the case just mentioned, is Baker v. Hunt, 1 Ward. Leg. 103. In that case, it appeared that the defendant had paid to the clerk a sum sufficient to satisfy the plaintiff’s demand. The clerk received the money, but refused to give receipt for it, stating that he did not think he had any authority to receive it. He subsequently returned the money to the defendant, and then the plaintiff applied for an order requiring the clerk to pay the money to him. The application was denied, the court, by Chief-Justice Savage, declaring: “ The clerk had no right to receive the money without a rule of court, and acted correctly in returning the money to the defendant.” Money paid to the clerk cannot be considered as having been paid into court, for the very obvious reason that the clerk is not the court and has no authority, in the absence of a statutory direction, or a special order, or a general regulation, to act for the court in such a case; and also for the further reason, that such a payment, especially when made without the authority of the court in its absence and without its knowledge, entirely fails to accomplish the fundamental object of the direction to pay the money into court, which is to-put the money into the custody of the court for safe keeping and its ultimate payment, by order of the court, to the person entitled to it. In the absence of statutory direction, or a special order, or a general regulation, the clerk, in my judgment, has no more authority to receive money in such a case for the court than he has to decide what sum shall be paid, or what shall be received as money, or where the money shall be placed for safe keeping, or to whom it shall be paid;

As a general rule, money cannot be paid into the English court of chancery without an order. Mr. Daniell, in his treatise on Pleading and Practice, says: “No money can be paid into-court to the credit of any cause or matter, with few exceptions,, without an order.” 2 Dan. Ch. Pr. (5th ed.) 1786 marg. 1708 bottom. The exceptions referred to will be found, on examination, to be cases where parliament has selected the person to whom the money must be paid and has given express direction that it shall be paid to him. For example: the English statute, authorizing land to be taken for railroad and other purposes, generally called the Lands’ Clauses act (8 and 9 Vict. c. 18; 17 British Stat. p. 584), declares, that when the sum awarded for land taken exceeds £200, and cannot, for any reason, be paid to the owner, the money shall be paid into the bank, in the name and with the privity of the accountant-general of the court of chancery, to be placed to the account there of such accountant-general. Under such a statute, it is obvious, that, to get the money into court, no order is necessary, nor has the court any authority to make one, for parliament has itself designated the person to whom the money shall be paid, and also where it shall be placed for safe keeping, and has thus deprived the court of all power either to appoint a person to receive the money or to select a place for its safe keeping. The construction of such statutes has been free from doubt or question from the time the first one was passed. In an anonymous case, reported in 1 Ves. 56, it appeared, that parliament, by a private act, had directed the sale of an estate and that the money arising from the sale should be paid into tbe bank, in the name and with the privity of the accountant-general. After the sale, a petition was presented, asking that an order be made directing that the money be paid into court pursuant to the act. Lord Thurlow held that he had no authority to make an order. He said: “ Money is frequently to be paid in by authority of the court; frequently the court has a right to look into it. Here it is to be paid to the ■accountant-general, and the court has no authority.” And he then added, in substance, that when an act of parliament confers authority on the court, or refers a matter to the court, the court must obey the direction of parliament. But one deduction can be fairly made from this statement of law, and that is, that when a statute directs that money shall be paid into a particular court, without designating a person to receive and where the money shall be placed for safe keeping, the duty of making such designations is necessarily imposed on the court, and the court must then look into the matter and decide who shall be authorized to receive the money and where it shall be placed for safe keeping.

In such a case, the money cannot get into court except by the ■authority of the court, for, until authority is given to some person, either by special order or general regulation, no one has authority to receive the money for the court. When a statute does not order to whom it shall be paid, in order to put it into the custody of the court, the court must, and until the court does, either by special order or general regulation, no person, whether an officer of the court or not, has the least authority to receive the money for the court.

There are statutes which direct that money, in condemnation cases, shall be paid into court, by paying it to a particular officer; as, for example, as that it shall be paid to the clerk of the circuit court, or that it shall be paid into a specified court, to the clerk thereof; and others still, which, without ordering the money paid into court, simply direct that- it shall be paid to the county clerk. But between such statutes; and a statute which directs that the money shall be paid into a particular court, without directing to whom the payment shall' be made, there is, it will be observed, a clear and broad distinction. They vary both in their words and their substance. Statutes, expressed in the form first stated, point out, plainly and distinctly, an officer to whom the money shall be paid, and must therefore be understood, as a legislative command, that the payment must be made to him. The court, under such a statute, has no power whatever to direct or control the payment of the money, because the legislature has given full and final direction on that subject. While a statute expressed in the second form, as it omits the direction given by the first, and fails to say to whom the money shall be paid, and simply says that it shall be paid into court, without more, must be understood, according to an established principle of construction, as evincing a clear legislative purpose, especially when the words of the two are contrasted, to give the court, into which the money is directed to be paid, full power and authority to decide how it shall be brought into court, who shall be authorized to receive it and where it shall be placed. for safe keeping. The two provisions it will be noticed, differ widely in a highly-important particular. The one directs to whom the' money shall be paid in order to bring it into court, while the other simply directs that the money shall be paid into court without appointing any person to receive it. The one gives full and specific direction.as to whom the money shall be paid and the other says nothing whatever on that subject. The one omits a material direction that the other contains. ■ They cannot, therefore, mean the same thing. To declare that they .do, would not be construction, but legislation. A court may expound, but it cannot legislate. The principle which must control the construction of .a statute, differing as widely as this does from other statutes on the same subject, was laid down by Mr. Justice Buller, many years ago, in Jones v. Smart, 1 T. R. and recognized and enforced by the court of errors and appeals, speaking by Chief-Justice Beasley, in Palmateer v. Tilton, 13 Stew. Eq. 555, 557. It is this: “We are bound to take the act of parliament as they have made it; a casus omissus can in no case be supplied by a court of law, for that would be to make laws.”

Without giving any consideration to the question as to whether, where payment of the condemnation money into court must precede appropriation, a right to possession can, in any case, be legally acquired, except the payment is made on notice to the landowner, so that he, is afforded an opportunity to be present in court to see that his rights are properly protected, my judgment is that the complainant’s application mus’t be denied, for the reason that, on its own showing, it appears that it has not paid the condemnation money in such manner as to give it a right to take possession of the land condemned.

There is another reason why I think the complainant’s application, in its present form, must be denied. The land of the defendants which the complainant seeks to acquire, as described in the condemnation proceedings, consists of a strip fifty-five feet in width, extending from the northerly boundary of a street in Jersey City, known as Railroad avenue, northward a little less than five hundred and twenty-five feet. The defendants, as abutting owners, hold the fee* of one-half of the land occupied by this street. At the point where the complainant’s railroad will cross this street, the street is about fifty feet wide, so that the complainant’s route, at the point of crossing, embraces a lot of land belonging to the defendants, but constituting a part of the street, fifty-five feet in width by twenty-five feet in length, and containing about thirteen hundred and seventy-five square feet. This land in the street forms, no part of the land which the complainant notified the defendants it intended to take, and of which the statute required the complainant to give “ a particular description ” in writing. Rev. p. 928 § 100. It lies, in fact, entirely outside of the land described in the condemnation proceedings. Hence, unless the quantity of land acquired by the exercise of the power of eminent domain in this case can be extended, by construction, so as to embrace land lying outside of the boundaries of the land described, it is manifest that the complainant has acquired no right whatever to use or possess the defendants’ land in the street. At the time the condemnation proceedings were commenced, the defendants’ land in the street-was burdened with the easement of a public highway. Subsequently, however, and between the date when the commissioners made their award and the date when the appeals from their award were tried, the street, at the point of crossing within the lines of the complainant’s route, was vacated by the proper authority, so that the fact is that, when the sum which must be regarded as just compensation for the land taken was finally determined by the verdict of the jury which tried the appeals, the defendants’ land in the street was no louger subject to the easement of a public highway, but had been entirely freed from it. It is not pretended by the complainant that the sum awarded by the jury included the value of the defendants’ land in the street, or that on the trial of the question as to what sum would constitute just compensation for the land which the complainant wanted to acquire, either party understood or supposed that the land in the street constituted part of the land for which compensation should be made. No evidence respecting its value, or the damages which would be caused by its appropriation, was offered by either party. They, on the contrary, restricted their evidence, as to value and damages, to the land embraced within the particular description which the complainant had given of the land it intended to take.

Notwithstanding these facts, the complainant contends that it has acquired a right to construct its railroad over the defendants’ land in the street. The general principle asserted in support of this contention is that the condemnation of land abutting upon a highway, by a railroad corporation, operates as a grant of land outside of the land particularly described, and carries the right acquired by the condemning company as far into the public way as the title of the owner, whose land is taken, extends. The argument is, of course, that such is the legal effect imputed, by construction, to a grant of land abutting upon a public way, made by deed, and that, as land taken by the exercise of the power of eminent domain, is held, in legal theory at least-, to have been acquired by grant, the meaning and effect of such a grant should be determined by the same rules which govern the construction of a grant made by deed. But this argument, as is apparent, entirely overlooks the wide difference existing between the two grants, both as to the means by which they are effected and the purposes for which they are made. When land abutting on a public way is conveyed by deed, free from condition or limitation, the grantee acquires a right, by the deed, to use the land for any and all purposes for which land may lawfully be used. To many of such purposes the land occupied by the highway, whether it remains subject to an easement in favor of the public of not, is a necessary and indispensable adjunct. When a conveyance of land thus situated is presented for construction, the presumption is easy and natural that the parties to the deed both understood and expected that the land in the highway, though not within its descriptive words, would pass by the deed. The land in the street in such a case “ being regarded,” as Chief-Justice Beasley, in the leading case on this subject in this state, said, “as á mere adjunct of the property sold and worthless for any other use.” Salter v. Jonas, 10 Vr. 469, 472. And it is upon the ground of the presumed intention of the parties, and upon this ground alone, that the doctrine rests that the delineatory words of a deed may be extended by construction so'as to make the deed convey more land than they describe. In the case just cited, the chief-justice (at p. 473) says: “ The particular words should, in such transactions, be controlled and limited by the manifest intention which is unmistakably displayed in the nature of the affair and the situation of the parties. When the conditions of the case are altered, as if tile vendor should, in a given case, have an apparent interest to reserve to himself the parcel of street in question, a different rule of interpretation might become proper.”

It would seem then to be beyond dispute, that the construction which the complainant contends should be given to its grant, cannot be adopted, for the reason that- the presumption upon which it can alone rest, cannot be made in any case where land is taken in invitum. In such a case, the fact is, and no sensible presumption can be made to the contrary, that the landowner means to grant nothing; he simply submits to legal compulsion and does not intend to give up anything which the law will permit him to keep. That such was not only the purpose, but stubborn determination of the landowners in this case, is made-entirely certain by the averments of the complainant’s bill. The-defendants are charged with having pertinaciously resisted the complainant, in its efforts to acquire a right to cross their land,, by the institution of many distinct legal proceedings, in both the-state and federal courts, in bad faith and solely to delay and obstruct the complainant in the pursuit of its rights. Their course, in this respect, as described by the complainant, shows-that they did not intend to yield anything which the law would permit them to keep, nor even to submit to legal compulsion if they could help it. The law never indulges in presumptions; contrary to what the fact appears to be.

Besides, I think it is debatable whether, where land, abutting upon a highway, is conveyed by deed to a railroad corporation,, simply as a part of its right of way, and for no other purpose, the land in the highway, belonging to the grantor, would, by force of the rule under consideration, be held to pass. The land conveyed, in such case, would be acquired, not for all the uses to which land may lawfully be applied, but for a single purpose, namely, for the passage of railroad cars over it. The land in the highway could not be used as an adjunct to such a purpose, nor could it be applied, in any other lawful way, so as to render it valuable or useful to the grantee as a railroad corporation. None of the reasons which govern the construction of a deed, whereby land is conveyed to the grantee for all purposes, would exist in such a case, and it would, therefore, seem to be the duty of the court, when such a deed is presented for construction, to declare, that when the reason of any particular law ceases, so does the law itself.

But there is another, and as I think, conclusive reason, why land taken by the exercise of the power of eminent domain, under the General Railroad law, must be held to be unalterably limited to the land particularly described, and that its area can in no case and under no circumstances be extended or enlarged1 by construction. The legislative purpose, in requiring the condemning company to give a particular description in writing of the land it intends to take, is apparent, and had its origin, unquestionably, in a desire to secure fairness and promote justice. The duty of furnishing a particular description was manifestly imposed, so that the landowner might see and know just how much of his land was required, and what was its position and relation to his other land, and thus be placed in a position where he would have a fair opportunity to contest with his adversary the question of just compensation; and also, that all persons,, who should be charged with the duty of ascertaining and determining what would be just compensation for the land taken, might be furnished with the means of estimating, intelligently and judiciously, the value of the land to be taken and the-damages which would be caused thereby. That this purpose-would be defeated, and the wrong which the legislature meant to prevent would be done, if the complainant’s construction of its grant were adopted, appears to me to be so plain that no-argument is required to prove it. On general principles of justice, I think it* is entirely clear, that a grant acquired by a railroad corporation by the exercise of the power of eminent domain should not be enlarged or extended by inference or implication. With respecfto such grants, the rule of construction should be held to be, that whatever is not granted by express-words must be understood to have been withheld.

For these reasons, I think the court is bound to declare, that the complainant acquired no right, by the condemnation proceedings, to the defendants’ land in Railroad avenue. This-being so, it follows necessarily, that until the complainant may lawfully use that land, in passing to and from the point where it intends, according to the plan set forth in its bill, to commence the construction of its crossing, no injunction, of the kind asked for, should issue. If it were issued, it would inflict serious injury on the defendants and do the complainant no good. The first and principal measure of relief asked is, that the defendants may be compelled to remove the cars standing over the crossing, on tracks 1, 2 and 3, and keep those tracks, at that point, free, in order that the complainant may commence work in constructing its crossing by excavating under those tracks. But the fact is, that in consequence of the situation and surroundings of the land condemned for the crossing, the complainant has no means of access to the point where its excavation, under its present plan of constructing its crossing, must commence, except •over and across the defendants’ land in the street. And as the •complainant has not, as yet, acquired a right to use that land, it follows that it cannot proceed to excavate under the three tracks, and consequently has no right to have the cars standing over the crossing removed.

My conclusions on the whole case are — first, that as the complainant had not paid the condemnation money into court when it filed its bill, and hence has acquired no right to the possession •of the land condemned, its bill must be dismissed, but without prejudice to the commencement of a new suit; and second, that as the defendants’ cross-bill shows that the complainant has taken possession of the defendants’ land in Railroad avenue, and •commenced work thereon, without right, an injunction must issue restraining the complainant from its further use.