author: Griffin, V. C.

text:
    Alexander L. A. Mackie v. Lucius T. Donohue et al.
    [Submitted April 3d, 1920.
    Decided April 22d, 1920.]
    1. Where taxes and other municipal liens were attempted to be adjusted by commissioners of adjustment, they should not group several lots in one parcel and adjust the liens in a single sum for each year against the group.'
    2. Where error is discovered in the report of the commissioners for adjustment of taxes and other municipal liens, the circuit court may refer the matter back for correction.
    3. Where the first report of the commissioners of adjustment as to taxes and other municipal liens was defective, and the second report recited that it was readjusted by order of the court, it will thereafter be presumed when tax titles are questioned that such an order was made, though none can be discovered.
    4. As the owner of land is charged with knowledge of the recital in a report of the commissioners of adjustment that it was readjusted by order of the court, he cannot, many years afterward, during which time the order may have been lost, attack a tax title based on the second report, on the ground that there was no order of court.

      5. Where the original report of the commissioners of adjustment of taxes and other municipal liens was defective, and a second report was made, certiorari is the proper remedy to attack the second report on the ground that it was not authorized by order of the court.
    0. That_the remedy by certiorari to attack such a report has been lost by lapse of time does not give a court of equity jurisdiction.
    7. Where the complainant secretly went about the premises for the purpose of asserting in the future that the defendant who held a tax title was not in possession, notwithstanding that the complainant knew of the defendant’s title, a court of equity will resolve every doubt against the complainant.
    S. In a suit to quiet title to lands which had been sold for. taxes but to which the complainant, the successor in interest of the original owner, asserted that he had acquired adverse title, evidence held insufficient to establish such title.
    9. Under section 119 of the act concerning conveyances a tax deed given by a municipality under the Martin act carries with it possession as an ordinary conveyance in view of the provision that the purchaser shall take good and sufficient title to the property sold in fee-simple, and that such a deed shall be presumptive evidence.
    30. Where the lands were vacant, and there was no evidence of occupancy, a tax title under the Martin act is superior, as it is where the grantee was in possession before the successor to the original owner, who asserted an adverse title, instituted suit to quiet title.
    On bill, &e.

      Mr. William Van Buskvrk and Mr. Frank W. Hastings, for the complainant.

      Messrs. Hamill & Cain and Mr. John F. Gough, for the defendants John J. Cain and Duryea Manufacturing Company.

      Mr. Max Levy, for the defendant Michael M. ICeshin.
   Griffin, V. C.

The bill in this cause is filed to quiet title to lands in the city of Bayonne. The defendants’ titles are derived from sales under the Martin act. 4 Comp. Stat. p. 5205.

The complainant asserts: 1. That the titles of defendants under the Martin act are void. 2. That complainant and his predecessors in title have been in peaceable possession for upwards of forty years.

1. Tlie facts upon, which the complainant claims the defendants’ titles, are void are as follows:

The taxes and other municipal liens were attempted to be adjusted in report No. 5 of the commissioners, of adjustment, dated September 20th, 1888; confirmed October 27th, 1888. By this report the commissioners adjusted the taxes against a great number of lots and parcels of land, but instead of adjusting the liens against each lot or parcel year by year, as theretofore assessed, separately, erroneously grouped seveial lots in one parcel and adjusted the liens in a single sum for each year against the group.

This method of assessment is erroneous. Hayday v. Ocean City (1901), 67 N. J. Law 155; Nichols v. Older (1910), 78 N. J. Eq. 101.

Within eight months after the confirmation of report No. 5, report No. 10 was filed and confirmed. This latter report covered lots in block 519 and block 535, which included the premises in question as well as lots in many other blocks, and adjusted the liens on the several lots in the manner provided by law, not only from 1877 to 1887, both inclusive, which were included in report No. 5, but also the liens for the year 1888.

In report No. 10, at the beginning of the adjustment against blocks 519 and 535, are the words “readjusted by order of the court.”

It seems quite apparent that the error in the adjustment in report No. 5 was discovered, and thereupon the matter was referred back to the commissioners for readjustment; that the circuit court had power to make this order of reference is clear. In the case of Erie Elevator Co. v. Jersey City, 84 N. J. Eq. 176, in affirming the decree of the court of chancery (83 N. J. Eq. 71), Mr. Justice Bergen, speaking" for the' court of errors and appeals (at p. 182), said-: “We think that the circuit court has the power to set aside such an order if it appears to have been improvidently made, or where the appellate court has determined that the adjustment has been made upon illegal principle0, and to send the report back to the’commissioners to make a legal adjustment; and that it has the power to- confirm, in the manner prescribed by law, the new adjustment such commissioners may report.”

But complainant insists that there was no order for readjustment made by the court because none can be found of record. In this he cannot prevail. The words “readjusted by order of the court” above mentioned were in the report when presented to the court, and confirmed, and clearly demonstrate that ■ such order- had been made.

The complainant and his predecessors in title, either had actual knowledge, or -were charged with knowledge of this recital, and having failed to object to the confirmation of the report, it is now too late, after a lapse of more than thirty years, during which time the order may have been lost, to assert that this recital is untrue. Erie Elevator Co. v. Jersey City, supra (at p. 182).

I, therefore, find that the proceedings under the Martin act contained in report No. 10 were regular. If it were otherwise, the complainant had his remedy by certiorari and this court is without authority to entertain his bill, simply because the time within which to sue out his writ has passed. But I found my opinion principally upon the point that the proceedings wqre regular. From this it follows that the deeds made by the collector of revenue of the city of Bayonne vested in the grantees the fee-simple in accordance with their terms.

The second claim made by-the complainant is that he and his predecessors in title were in peaceable possession of the lands for more than forty years down to the filing of the bill.

The premises in question and other contiguous property were purchased by the father of the complainant about 1858. Subsequently, it became vested in his another, Catherine G. Mackie, who died seized oaa or about “September 1st, 1868. She left her surviving her husband, Robert, and children, C. T. O. Mackie, E. E. W. Mackie, A. L. A. Mackie (the complainant), R. J. D. Mackie, S. F. Mackie, S. L. Mackie and G. B. Mackie, as her only heirs-at-law.

Iaa 1876 a bill was filed in this court to partition said premises. A final decree was entered confirming the comanissioners’ report on January 16th, 1879.

By this decree the lots numbered and preceded with the letter G, as shown on the commissioners’ map offered in evidence, were set off in severalty to Simon Frazier Mackie. Of these lots G 2, G 3, G 4 and G 5, in block 535, and G 3, in block 519, are in controversy. These lots are also shown on the city assessment map as follows: G 2 as lots 28 and 27, 27 being nearest to First street; G 3 as lot 3, G 4 as lot 6, and G 5 as lot 9, in block 535, and G 3, in block 519, is known as lot 31, block 519.

The parents of the complainant lived in the homestead, located on lots E 2, A 2 and C 2, situated on the northeast corner of First street and Newman avenue. Lot E 2 was set off to Schuyler L. Mackie; A 2 to Charles T. O. Mackie and C 2 to the complainant. There was also a stable located partially on G 2 and D 3 (lots 29 and 28), D 3 having been allotted to Robert J. D. Mackie and afterwards, acquired by the defendant Cain in 1902: There were no other buildings on the land.

After the partition, and after the death of their father, which occurred in 1880, the complainant says that the family agreed to keep the property together as a homestead and the unmarried members occupied it. His best recollection is that the last of the family to reside there were his brothers Schuyler L. Mackie, Charles T. O. Mackie, and his sister, Mrs. Gilchrist, who moved away sixteen or eighteen years ago (1901 or 1903). He says that Simon Frazier Mackie, to whom the premises in question were allotted, resided in Salt Lake City, Utah, from 1881 to 1902, when and where he died; that after the family left, the homestead was rented, and the tenants, with permission of S. L. Mackie and himself, gardened lot 28 and occupied lot 27. He also says that tenants occupied the stable on lot 28. (The fact is that the stable is on lots 28 and 29.) He says nobody used the stable after the family moved away. He found Stringham had fenced off part of -Avenue Q (Newman avenue), and his horses had the run of the stable. 'He did not lease to him, and never leased lots 3, 6, 9, 27 and 28, and he never paid taxes on them. After Stringham left someone else occupied the stable.

Edward Botsworth rented the homestead only from Schuyler Mackie, who was one of the owners, in 1906, and used the property in the block generally for farming. After he left his father-in-law rented the homestead, and left it in 1914, after which Mrs. Hermanos rented the homestead.

Mr. Cain acquired title to lots 3, 6, 27 and 28 in 1903, and to lot 9 (sold to Duryea Manufacturing Compaq) in 1902, being the premises in question. He acquired other lots as follows: In 1901, Nos. 18 and 19; in 1902, Nos. 1, 5, 21 and 22; in 1903, Nos. 3, 12, 13, 14, 15, 23, 29, 30, 31, 32, 33; and in 1916, Nos. 2, 4, 10, 11, 34 and 35, all in block 535, in all, twenty-two lots, which he owned on and prior to 1909, and in 1916 owned twenty-eight out of a total of thirty-five lots in the block, all of which he purchased prior to the filing of the bill herein.

On the commissioners’ map. in partition each heir is given a letter which is prefixed to the lot, numbers of lots set off to him or her, as follows:

Charles T. O. Mackie, A
Euphemia E. W. Mackie, B
Alexander L. A. Mackie, C
Robert J. D. Mackie, D
Schuyler L. Mackie, E
George Barclay Mackie, F
Simon E. Mackie, G

The diagram on the opposite page shows the location of the lots in block 535, the mansion house and stable, the lots conveyed to Cain and Duryea Manufacturing Company, and the lots set off to the various parties in partition, by letter and number.

As to the lots purchased prior to 1916, his vendors were persons other than the city, although the title to all the lots was derived through mesne conveyances from the cit}r, who purchased under the Martin act. The conveyance of the lots in 1916 was „ made by the sister of the complainant, Mrs. Gilchrist, as sole devisee and executrix-under the will of her brother Schuyler, by deed dated July 8th, 1916—five months before this bill was filed.

It appears clearly in the case that Mr. Cain has been in possession of these lands, since his purchase, as fully, openly and notoriously as could be expected in the case of lands' so situated. He gave permission to one Stringham, about 1907, to keep his horses in the stable and on his lots in the block. Stringham patched the old fence around three sides of the bldck. The first avenue side he did not touch, because the homestead property and fences on that side were sufficient for the purpose. He does not recall if Stringham paid him for such' use. He also rented the stable to Mrs. Hermanos about 1914, at $3 a month. She •has continued in the possession as his tenant ever since. She lives fn the homestead, which she rented from the Mackies.

About thirteen or fourteen years ago Cain leased part of lot 27 and lots 28, 18, 19, 21 and 22 to one Bernstein for $60 for the season, to be used as an amusement park. Bernstein put up fences between lots 17 and 18, which extended from twenty-five to forty feet into lot 28, and from thence across lots 28 and 27 to the rear of lot 23.

Mr. Maclcie, the complainant, upon being recalled, said that the amusement park opened, he thinks, in April, 1909; that he made measurements at the time, which he thinks are at his home, from which he made a map of the fenced area, and that it did not touch lots 27 and 28, but was wholly to the east of the rear line of these lots, on lots 18 and 19.

Turning to tire conduct of the complainant, it appears that for upwards of'thirty-five years it was his habit, every two or three months, to search the records of the county and communicate the facts disclosed to' his brother Simon. Thus he acquired actual knowledge of tire various deeds and conveyances about the time of their record. He knew 'that Mr1. Cain had deeds for these premises, was exercising acts of ownership over the same, and was pawing the taxes year by year ; yet he never made the slightest suggestion to Mr. Cain that his brother Simon, in his lifetime, or his daughter after his decease, had any claim, estate or interest in these premises; nor did Simon, in his lifetime, nor Ms daughter after his décease, assert such claim. But, with full knowledge of the facts, complainant secretly went about the premises, apparently making measurements for the purpose, at some future day, of being prepared to combat the claim which the defendant Cain might assert that 'he was in possession. In 1912 he took a deed from Margaret, the daughter and only heir-at-law of Simon, and about four years later filed his bill. Apart from the fact that the evidence is quite clear that Mr. Cain was in possession, a court of conscience, in dealing with the conduct of the complainant, should resolve against him on every doubtful question.

I find, as a matter of fact, that the complainant was not in possession, and that Mr. Cain was in possession from the date of the deeds to him, being about the year 1903; and I fiind, as a matter of law, that the deeds from the collector of revenue of the city of Bayonne to its grantees operated, under the Martin act, to place the possession of the premises in question in the grantees, under the one hundred and nineteenth section of the act respecting conveyances. 1 Gen. Stat. p. 877, and cases in note; 2 Comp. Stat. p. 1536 § 7. This counsel for complainant admits to be the law, in conveyances generally, but says that a tax deed stands on a different footing, and implies no livery of seizin; that the purchaser must take possession or lose his right by limitation, citing Beatty v. Lewis, 68 Atl. Rep. 95. In that case a tax sale was made by the city of Hoboken for a term of years; under the charter, the owner had a right to redeem within two years, after the sale, after which date, if not redeemed, the purchaser liad the right to possession. "Vice-Chancellor Howell held that this tax certificate did not vest immediate possession, but only the right to possession at the end of two years; that something had-to be done by the purchaser at the end of two 3'ears to obtain possession. This decision has no bearing on the present case. Nnder the Martin act, section 6, it is provided that the purchaser, after the sale and before receiving his deed, shall be entitled to possession of the lands immediately upon giving notice to the owner thereof, in case the same are unoccupied, or, if they are occupied, then within thirty days thereafter—apparently following the spirit of the old tax acts such as are contained in the charter of the city of Hoboken. No such language is contained in the Martin act as to the deed. In section' 5 it says:

“The purchaser, his hgirs, legal representatives or assigns, by his deed shall take a good and sufficient title to the property sold, in fee-simple, absolute, free from all encumbrances, etc., of which the deed shall be presumptive evidence in all places.”

This places a deed given under the Martin act on the same footing as a deed given by an individual owner of property, thereby putting defendant in possession as fully as if there was livery of seizin.

At page 177 of the testimony Mr. Hastings made an objection, which, apparently; was abandoned in his brief (and I think properly so), that the lands, in one deed are described as “fronting on Fourth street, in the city of Bayonne,” whereas, in. fact, they front on Newman avenue. This part of the description may be rejected as false, the remainder being sufficient to identify the property conveyed.

The decree will be for the defendant Gain in the usual form.

As to Keshin: Lot 31, block 519; lot vacant. There were no signs of occupancy by anyone. Certainly, after Keshin became seized of the premises under his deed, no acts of ownership, open, hostile and notorious, are exhibited in this case by the complainant, or those under whom he claims, which would constitute an adverse possession, or any possession whatsoever. Keshin visited the premises occasionally and paid the taxes thereon.

The decree, therefore, will be in-favor of Keshin.

What has been said to the above defendants applies with equal force to the Duryea Manufacturing Company (lot 9, block 535), with the additional remark that it is perfectly plain that the Duryea Manufacturing Company commenced the erection of its building otr the land prior to the commencement of this suit, and, therefore, under no circumstances, could the complainant claim to have been in possession of this lot at the time of the filing of the bill.

The decree will be in favor of the Duryea Manufacturing Company.


source: Caselaw Access Project

author: Foster, V. C.

license: Public Domain

text:
    Edwin Sternberger, as executor and surviving trustee under the will of Simon Sternberger, deceased, petitioner, v. Mary B. Tunison, individually and as executrix of Edwin M. Wight, deceased, and Edward Claxton, defendants.
    [Submitted June 8th, 1920.
    Decided June 25th, 1920.]
    1. A surviving executor and trustee under a will given a power of sale can maintain proceedings against a creditor of a legatee to secure the discharge of a notice of Us pendens as a cloud on the title of the estate, and incidentally for a construction of the will though all persons interested in the will are not made parties to the cause.
    2. Such proceedings may he instituted by petition by the executor without his becoming a party to the suit in relation to which the notice of Us pendens is filed.
    8. Such proceedings may be maintained under the general powers o£ the court to remove a cloud on a title, and also under sections T and 9 of the Chancery act of 1915, and the notice may be discharged, in so far as it affects the title to the lands belonging to the estate, with provisions protecting the rights of the judgment creditor against the interest of the debtor in the proceeds of the sale of such lands.
    On bill, &c.

      Messrs. McDermott & Enright, for the petitioner.

      Mr. Randolph Perkins, for the defendant Edward Claxton.
   Foster, V. C.

The primary purpose of this proceeding is to secure the discharge óf a notice of Us pendens filed by the defendant Edward Claxton in the offices of the clerks of Union and Monmouth counties, under a judgment obtained by him in December, 1915, against Morris S. Sternberger, one of the sons of Simon Stemberger, deceased, and in connection with a bill filed by him in this court on March 19th, 1916, against Mary B. Tunison and Morris S. Sternberger, to set aside certain conveyances made by Morris S. Sternberger to Edwin B. Wight, and incidental to this relief the construction of certain provisions of the last will and testament of Simon Sternberger, deceased, is sought; and instructions are asked relative to the power and duty of complainant as executor and surviving trustee of the decedent.

The cause was submitted on the pleadings and a stipulation of counsel and on some proofs taken in court, from which it appears that Simon Sternberger, whose domicile was in New York, died testate about July 15th, 1895, leaving his widow and eight children, including complainant and said ’Morris S. Sternberger, surviving; that complainant and his mother, Pauline Sternberger, duly qualified as executors and trustees; that the will, after providing for the payment of debts and funeral and testamentary expenses, gave a number of legacies to various' societies and bequeathed the household furniture to his widow; the residue of the estate is given to the executors in trust, and the income thereof, to the extent of $6,000, was to be paid annually to the widow, and the remainder, if any, to his children, and the issue of any deceased child. Upon the death of the widow this residue was devised and bequeathed to his children and the issue of any of the children who predeceased the testator; charging, however, against the share of the children any advancements made to them respectively. Mrs. Sternberger, the widow and annuitant, died on March 4th, 1915, and it is estimated that the present value of the personal estate is about $1,500, and that the value of the real estate is estimated at $295,500, and that the total assets of the estate, including advancements made to the children, are $386,820. Included in these advancements is the sum of $23,270 advanced to said Morris S. Sternberger.

By the seventeenth paragraph of the will testator authorizes and empowers such of his executors as shall qualify, whether acting as executors or trustees, at any time in their discretion to sell all or any part of the real property at public or private sale.

By a proceeding in the supreme court of the State of New York, in February, 1919, in which complainant was the plaintiff and Morris S. Sternberger and others, including the defendant Claxton, were defendants, it was determined, among other matters, that Morris S. Sternberger is entitled to a one-eighth interest in the estate of Simon Sternberger, on the termination of the trusts created under the tenth, eleventh and twelfth paragraphs of the will, after charging against such interest advances in the sum of $23,270, and after satisfying thereout the liens decreed to exist against his said interest; among these liens was the judgment of the defendant Edward Claxton, on which was declared due $1,601.37, with interest from December 14th, 1915.

It .was also determined in that proceeding that a conversion of necessity took place on the death of the annuitant, Mrs. Pauline Sternberger, to enable distribution of the residuary estate to be made, and that in order to effectuate the intent of the testator, with respect to such distribution, the power of sale conferred by the will continues in complainant as executor and surviving trustee and should be exercised by him.

Petitioner now desires to exercise this power of sale and to dispose of the real estate of testator in this state for the purpose of effecting a conversion of it that will enable him to make the distribution directed by the will, but. he finds himself embarrassed and prevented from doing so by the lis pendens filed by Mr. Claxton, which titlei companies and others interested regard as a cloud upon the title. Petitioner does not- question the validity of the Claxton judgment, nor does he dispute that it should attach to the interest of Morris S. Sternberger in the proceeds of any sale of the real estate that may be made, but lie insists that the lis pendens- and the lien claimed by virtue of it affect only the property of Morris S. Sternberger; and not the property of testator, and that the defendant Claxton should be required to look to the interest of Morris S. Sternberger in its converted form and should not be permitted by his Us pendens to injure or affect the title to the real estate of .the testator. The theory of his petition based on the judgment of the court in New York being that a conversion of necessity of testator’s realty has taken place and that the lien of the Claxton judgment and lis pendens has been transferred to the proceeds of sale; and it appears from the facts, and it is not disputed, that a sale of the realty for cash is the only practicable and satisfactory legal way to effect a division of the estate after deducting, or crediting, the advancements made to the children.

The defendant Mary B. Tunison has offered no objection to these proceedings and permitted a decree pro confqsso to be entered against her individually and as executrix on February 10th, 1920.

The defendant Claxton opposes the relief sought, and insists that these proceedings are irregular, although it is admitted that Claxton has nothing to do with the estate of Simon* Sternberger as such. On behalf of Claxton it is contended that the petition seeks the construction of a will in proceedings to which none of the persons in interest are parties; that the present application should have been made in the suit pending in this court between Claxton and Morris S. Sternberger, and in which neither this complainant nor the Sternberger estates are parties, and that the court is without jurisdiction to grant the relief sought.

Regarding the first objection it is sufficient to say that any construction placed upon the' will in these proceedings cannot injuriously affect the rights or be binding upon any of the parties in interest who are not parties to the proceedings, and it may be added that for the purposes of these proceedings the determination of the supreme court of New York will be followed and it will be held that on the death of the annuitant a conversion of necessity took place to enable a distribution of the residuary estate to be made as directed by the will, and that for the purpose of effecting such conversion and distribution, the power of sale conferred by the will rests in complainant as surviving executor and trustee and should be exercised by him.

To sustain defendant’s second objection, it would be necessary that complainant and the Sternberger estate should be made parties in the ’suit between Claxton and Morris S. Sternberger, which relates' to matters in which they have no interest, as it is a.n action to set aside, as in fraud of creditors, certain conveyances of real estate made by Morris S. Sternberger to Edwin M. Wight some time before the death of Simon Sternberger and in which he did not have any interest.

The objection to the jurisdiction of the court is, however, the one principally relied on to defeat the- relief sought.

The proceedings are apparently brought under the general power of the court to remove a cloud upon title. See 4 Pom. Eq. Jur. §§ 1398, 1399, and also under sections 7 and 9 of the Chancery act of 1915 (P. L. 1915 p. 184), and the insistment on behalf of the defendant is that petitioner’s claim that because of the lis pendens purchasers would not accept title to decedent’s lands in this state, and that title companies would not insure the title thereto, is not sufficient to give the court jurisdiction in this proceeding that can affect Claxton’s rights. This contention gives rise to the question, What are Claxton’s rights? Has he the right because he holds an unsatisfied judgment against Morris S. Sternberger, who may or may not receive from the final settlement of his father’s estate, after deducting the advancements made him, his one-eighth interest therein (and which is subject to the lien of Claxton’s judgment), to maintain of record a notice of Us pendens injuriously affecting the title of lands belonging to the estate, and if he has no such right, is the representative of the estate without remedy to have this cloud upon, the title removed? The cited sections of the act of 1915 clearly furnish the answer, for they authorize any person claiming a right under a deed, will or other written instrument to apply for a construction thereof, so far as the same affect such rights, and for a declaration of the rights of the persons interested.

The first section of the act provides that it shall be liberally construed, and Chancellor Walker, in In re Ungaro, 88 N. J. Eq. 25, held that this means to advance the remedies given in and by it. And the same view of the act was taken in Renwick v. Hay, 90 N. J. Eq. 148, and Town of Kearny v. City of Bayonne, 90 N. J. Eq. 499.

Having found from the facts that there was a conversion by necessity, and that complainant could and should exercise the power of sale given him by will, it follows that complainant must be entitled to apply to the court for any remedy that will protect him in the exercise of the rights claimed by him under the will.

This conclusion is not only justified by the facts presented, but also by the limitations that can and should be imposed in granting complainant relief, because it can be provided in the decree that the lien of the judgment shall attach to the proceeds of the sale of any lands of the estate in which Morris S. Sternberger has an interest, as fully as it could attach to the land itself, and all rights of Claxton under his judgment against Morris S. Sternberger will then be preserved to him both in this state and in New York. To refuse the relief sought will prevent complainant from selling the lands of the estate and making distribution of the proceeds of their sale among the parties entitled thereto (none of whom, with the exception of Morris S. Sternberger, are in any way liable for the Claxton-Sternberger judgment), as the personal estate in the hands of complainant is not sufficient to pay the amount of the judgment, were he inclined to take an assignment of it, in order to remove this cloud upon the title to the lands of the estate.

In so far as the notice of Us pendens in any way affects the title to the lands of which Simon Sternberger died seized, a decree will be advised, as prayed for by complainant, which shall not, however, in any way impair or prevent the lien of Claxton’s judgment attaching to any share or interest Morris S. Sternberger may have in the proceeds of the sale of any or all such lands,- and, furthermore, which shall in no way affect the force and effect of such notice- of Us pendens against any lands or interest therein (except lands of the estate of Simon Stemh'U’ger) which Morris S. Sternberger may own or be entitled to in any way.

The terms of the decree can be settled on. three davs’ notice.


author: Buchanan, V. C.

text:
    Frank Smathers, receiver of Atlantic City Suburban Gas and Fuel Company, v. Syl A. Leith and David C. Bradley, executors, et al.
    [Decided June 28th, 1920.]
    Complainant, receiver of an insolvent corporation, filed a bill alleging a transfer of funds of the company while insolvent to creditors in payment of the debt owed them, joining the creditors and directors of the corporation'as defendants, asking that the transfer be adjudged null and void and for a decree against the creditors that they repay, and against the directors for the amount of the company’s loss if the creditors do not repay.—Eeld, on petition by the defendant creditors for removal to the federal court, that the controversy between complainant and the defendant creditors is separable from that between complainant and the directors.
    On bill. On petition for removal to federal court.

      Messrs. 'Hutchinson & Hutchinson, for the petitioner.

      Mr. Lewis Starr, for the respondent, Frank Smathers, receiver.
   Buchanan, V. C.

The bill of complaint in this cause is filed by the receiver of the Atlantic City Surburban Gas and Fuel Company, an insolvent corporation, alleging that the directors of that company made an improper and illegal payment of some $6,000 to Pleasantville Heat, Light and Power Company; that the Pleasant-ville company has since become insolvent; that the same directors of the Atlantic City company, while the latter was insolvent, paid to the defendants Leith and Bradley, as executors of Savery Bradley, deceased (the present petitioners), $5,000 in repayment of a loan made to the company by their testator in his lifetime. Complainant has made all of the directors of the Atlantic City company parties defendant, and also the executors, Leith and Bradley. One of these executors, David Bradley, happened to have been one of the directors, and he is therefore made a defendant, individually, as well as in his capacity as executor. Complainant seeks to recover from the directors the amount of the wrongful payment made to the Pleasantville company; and, as to the $5,000 payment, this he seeks to recover primarily from the executors of Savery Bradley, deceased, and, secondarily, from the directors.

The petitioners upon due notice presented their petition for removal, with proper bond, by which petition it appears that they are residents of Pennsylvania (as was also their testator), and that complainant, as well as each of the other parties, is a resident of New Jersey, and the Atlantic City company a New Jersey corporation. They contend that the controversy between complainant and themselves as executors is separable from the other controversies set forth in the bill of complaint and seek an order of removal thereof to the United States district court.

The only opposition is from complainant, who denies that the issues between himself and the executors of Bradley is a separable controversy.

It is true that this court is not required to surrender its jurisdiction unless and until the petitioners for removal present a case showing on its face that they have that right. National Docks Railway Co. v. Pennsylvania Railroad Co., 52 N. J. Eq. 58; affirmed, 52 N. J. Eq. 590; Holcombe, Receiver, v. Ames, 87 N. J. Eq. 486.

The pertinent portion of the federal statute is as follows:

“And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different- states, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the district court of the United States for the proper district.” Judicial Code, Act March 3d, 1911, § 28.

This portion of the statute is identical with the provision in the act of March 3d, 1875, and it is well established that in order to justify a removal upon the grounds of separable controversy and diverse citizenship, there must be sh.own to be a. controversy wholly between citizens of different states which can be fully determined as between, them, and complete relief afforded as to the separate cause of action without the presence of others originally made parties to the suit. Torrence v. Shedd, 144 U. S. 527; National Docks Railway Co. v. Pennsylvania Railroad Co., supra.

Complainant argues that his bill is filed by him as. receiver to gather in assets, and that for that purpose all persons in any way liable for the diversion of assets from the insolvent company were made parties. His theory, apparently, is, that the situation is analogous to such cases as Graves v. Corbin, 132 U. S. 571, where the bill was filed by a creditor to reach the entire property of a partnership, which had been fraudulently dissipated and diverted to and amongst divers persons, all of whom were made defendants as well as the partners. In that case, however, all of the defendants who had separately received the several portions of partnership' property were charged with being parties to the fraudulent scheme.

Of course, the purpose of the complainant is to collect assets due the corporation. That in itself, however, is insufficient to show that tíre suit is indivisible. A suit against a number of consumer-customers of the insolvent corporation who had not paid their bills would have the same purpose to gather in assets, but it would not seriously be contended that any one such defendant, not connected with any other defendant, did not have a separate controversy.

In the present case relief is sought against Bradley’s executors by an adjudication that the payment of the $5,000 to them by the Atlantic City company was made by that company while insolvent, or in contemplation of insolvency, and is therefore null and void as against creditors under the statute (necessarily meaning section 64 of the Corporation act of 1896) and a decree that they repay the said sum. The relief sought against the directors is that they be decreed to pay to complainant the $5,000 “negligently, wrongfully and illegally paid” to the Bradley executors “in case complainant is unable to recover said amount from said executors,” and that they also be decreed to pay to complainant the $6,000 wrongfully, negligently, illegally and fraudulenta paid to the Pleasantville company. Presumably, relief in this behalf also is sought against the Bradley executors, since it is alleged that their testator was one of the directors at the time of the payment to the Pleasantville company. (Indeed, it is also alleged that he, the deceased Bradley, was also a director of the insolvent corporation at the time the $5,000 payment was made to his own executors.)

Nevertheless, the fact that the petitioners may be necessary parties defendant in the cause of action against the directors does not make the directors1 necessary parties in the cause of action against the petitioners. The statute does not provide that if the suit contains, amongst others, a controversy in which the petitioners for removal are necessary parties and which is not removable because the necessary conditions as to diverse citizenship do not exist, that the suit shall not be removed. The provision is just the converse—that the suit may be removed if a separable controversy between diverse citizens does exist in the suit—irrespective of what other controversies there are in the suit.

It seems quite clear to me that’a separable controversy does exist in the present case. The liability of the executors is that of a recipient of assets under a void or voidable transfer or conveyance, namel3r, to repay or refund the assets received or the value thereof, and it is absolutely separate and distinct from the alleged liability of the directors. So far as concerns this alleged liability of the transferees, it is utterly immaterial whether they knew, or ought to have known, of the insolvent condition of the corporation, since the transaction was not a bona fide purchase for valuable consideration. And it is likewise utterly immaterial whether or not there is any liability of the directors in connection with the transfer. Complainant’s bill does not allege a joint liability by the executors and the directors, for this $5,000 payment he prays relief “primarily” against the executors, and, “secondarily,” against the directors, “in case he is unable to recover said amount from the executors.” Nor is there any such joint liability in fact. There is no allegation of joint tort or participation in a fraud. The executors are liable if at all in an action upon an implied contract to repay the sum paid to them as alleged in violation of section 6-1 of the Corporation act, which declares such payments after insolvency void. The directors are liable, not because they made the payment in violation of that section which forbids it, but because they, as trustees, have violated their trust. They would not be liable at all if a decree were secured against the estate and collected fer no loss would have been occasioned by their breach of trust.

It seems perfectly obvious, therefore, that as to the liability of, and cause of action against, the executors, the directors are not nor are any of them necessary parties. As to it, final and complete determination can be had, and complete relief afforded, between complainant and the executors “without the .presence of others originally made parties to the suit.” "Whether or not the directors might be proper parties, though not necessary parties, is immaterial, for, in order to prevent the right to remove, they must be necessary parties. Barney v. Latham, 103 U. S. 205.

If precedent be desired, it would seem that Geer v. Mathieson Alkali Works, 190 U. S. 428, is precisely in point. In that case it was alleged that the officers and directors of the Mathieson company had made a fraudulent conveyance to the Castner company. The bill was, filed bj1- stockholders of the Mathieson company, and that company, as well as its officers and directors, and the Castner company were made defendants. The relief prayed against the Mathieson company was for an adjudication of the transfer as fraudulent and void, and a receiver and restraint; against the Castner company for a recovery of the property conveyed to it, and the profits therefrom; and against the Mathieson company’s directors for a recovery of all loss occasioned to the Mathieson company and complainants by their wrongful conduct. It. is held that there was a separable controversy between complainants and the two companies, to which the directors of the Mathieson company were not necessary parties, and that the cause has been rightfully removed to the federal court.

As a matter of fact, the right of the present petitioners to an order removing the cause, rests upon even a stronger basis than has heretofore been mentioned, for, while complainant claims in his bill (paragraph 25 thereof) to be entitled secondarily to a decree against the directors requiring them to pay to complainant “the said sum of $5,000 negligently, wrongfully and illegally paid to the executors of Savery Bradley * * * as above set forth,”’ there is nowhere in the bill any allegation that the directors, or any of them, caused this payment to be made or had anything to do with it or any knowledge thereof. The allegation is (paragraph 16 of the bill) that the company made the payment. In paragraph 22 it is said that the payment of $'5,-000, “as set forth in paragraph 16 hereof,” was in violation of the duty of the directors, and that therefore complainant had a right of action against the directors. This statement, however, is, of course, a conclusion of law—not an allegation of any fact .or facts upon which such conclusion might rest.

The order of removal will be advised.


author: Buchanan, Y. C.

text:
    Mary M. P. Weaver et al. v. Sarah A. Patterson et al.
    [Decided August 23d, 1920.]
    1. In suit for partition, where the parties are in possession of the lands with equitable title thereto, having the right to conveyance and possession, such conveyance will be deemed to have been made and partition will be decreed.
    2. Where a will gives the entire estate directly to a tenant expressly for life, and at the death of the life tenant gives “the same, or so much as shall remain” to other beneficiaries, and there are no other provisions of the will indicating an intention otherwise, the life tenant takes by implication an unlimited power of disposal of the remainder.
    3. Actual seizin of the husband or of some one to his use is a requisite of dower; and actual seizin of the wife is a requisite of curtesy. Hence, where lands are in the possession of a tenant for life, the wife or husband of a remainderman predeceasing the life tenant takes no dower or curtesy.

      4. Where lands are in the possession of a tenant for life, the wife or husband of a living remainderman has, however, a contingent interest which will be protected in partition.
    5. The estate for life given to a husband by descent by P. L. 1917 oh. SI § 6, adds nothing to his interest in lands where he has an estate by the curtesy consummate.
    6. In suit for partition the alleged .divorce of one of the co-parceners from* his former wife is not proved by oral testimony thereof—the wife not being made a party defendant.

      7. Where a life tenant of a share in lands sold in partition has also an unlimited power of disposal over the remainder interest in such share, such life tenant is entitled to have paid to her the entire net proceeds of sale of such share.
    8. Quwre. In such case is either the sale in partition or the payment of the proceeds equivalent to an exercise of the power of disposal?
    On final hearing.

      Messrs. Smith & Brady, for the complainants.

      Mr. Osiris D. McConnell, for the defendant Sarah A. Patterson.
   Buchanan, Y. C.

The bill is filed for the partition of three parcels of land, designated in the bill as tracts A, B and C. No facts are in dispute, although, there being an infant defendant, proofs were taken in open court.

The devolution of title to tracts B and C comes through the will of the former owner (Mary Winter), whereby an equitable life estate was given to Susan B. Patterson, with an equitable remainder to Susan B. Patterson’s children, who were Mary, Sarah, Ella, Clara and William.

Susan B. Patterson died September 2d, 1903; the executor-trustee under the Mary Winter will renounced. An administrator cum testamento annexo was appointed, who, on October 7th, 1903, executed a conveyance of the premises to the remaindermen aforesaid. Counsel on both sides have apparently assumed that such conveyance was valid and effective—overlooking the fact that the administrator cum testamento annexo is clothed only with the powers given to the executor as such, and not with the powers given hy the will to the executor as trustee. The latter can be exercised only by a substituted trustee. Casselman v. McCooley, 73 N. J. Eq. 253.

However, under the maxim that equity regards as done that which ought to be done, the 'defect seems of no actual importance in the present case. In suit for partition the legal conveyance will be deemed to have been made to the equitable remaindermen. Sailer v. Sailer, 41 N. J. Eq. 398 (at p. 399).

William, one of the five cotenants, conveyed his undivided one-fifth to his four sisters, November 3d, 1903, thus leaving tracts B and C held by them in respective undivided one-quarter shares.

Susan B. Patterson, in addition to being the equitable life tenant of tracts B and C, was the owner in fee of tract A. This tract she devised to her daughter Sarah for life or spinsterhood, with remainder at the death or marriage of Sarah, to “all my children, share and share alike” (being the five children herein-before mentioned). Sarah is still living and unmarried.

The next occurrence affecting the title to the premises of which partition.is sought, was the death of Clara in 1912. At that time tracts B and C, as has been noted, were owned by the four daughters of Susan, in one-fourth shares, subject to no life estate, and tract A was owned in fifths by the four daughters and the son, subject, however, to the estate for life or spinsterhood of Sarah.

The clause of Susan B. Patterson’s will disposing of the remainder after Sarah’s estate for life or until marriage is as follows:

“3—Prom and immediately after the marriage or decease (before marriage) of my said daughter, Sarah, I give and devise said house and lot to all my children, share and share alike, and to their heirs and assigns forever, it being understood that in ease any of my ■ said children should die before that time, leaving children, the child or children of such deceased child shall take the share of the parent.”

This remainder vested in the five children immediately upon the death, of testatrix—the share of each child being subject to divestiture by the death of such child, leaving children, prior to Sarah’s death or marriage. Trenton Trust Co. v. Moore, 83 N. J. Eq. and cases cited. In such event, the children of such, child so dying became vested indefeasibly of the parent’s share.

Clara died unmarried and childless; hence, there was no divestiture of her share of this remainder and no possibility thereof in the future. Her share, therefore, passed to her devisees, since she left a will, duly probated, disposing of all of her property.

By the terms of Clara’s will, her entire residuary estate after payment of debts and funeral expenses—and, therefore, including her one-fourth of tracts B and C, and her one-fifth remainder in tract A—was devised to her sister Sarah for her life, “and at her death” (the will proceeds) “I direct that the same, or so much as shall remain, shall be divided among such of my nieces as may remain unmarried”—with further provisions for certain contingencies in case all tire nieces are then married.

The only issue in the cause is as to the meaning and effect of this clause of the will. Complainants (being Mary and the , heirs-at-law of Ella) contend that thereunder Sarah takes only a life estate, with no power of disposal, in the undivided shares devised by Clara. The defendant Sarah (who consents to the partition) contends that she has the power of disposal as well as the life estate, and that the sale in partition thus made with her consent will be an exercise of the power of disposal, and she will be entitled to receive the entire proceeds of sale of the share in question. It is not quite clear from the briefs whether she also claims that the absolute ownership of these proceeds of sale will be thereby vested in her. The brother, William, filed no answer and does not support either end of the argument.

It is, of course, quite clear that the will of Clara does not give Sarah the absolute ownership'. The language is express and certain creating a life estate, with, at most, an added power of disposition. Downey v. Borden, 36 N. J. Law 460; Wooster v. Cooper, 53 N. J. Eq. 682.

Has she in fact such power of disposal? There are no express words creating such a power; but the power need not be express, it may be implied where such implication is a reasonably necessary result of the language used. In the present case it is contended that such is the necessary implication of the phrase “or as much as shall remain” (at the death of Sarah), used in qualification of the subject-matter of the gift over after Sarah’s life estate.

In Annin’s Executors v. Vandoren’s Administrator, 14 N. J. Eq. 135, it is held that the phrase there used by testator in qualification of the remainder over, “such part thereof as remains unexpended,” implied a power of disposal in the life tenant.

In Wilson, v. Wilson, 46 N. J. Eq. 321, the phrase qualifying the remainder over was “whatever it may be;” and it was held that a power of disposal in the life tenant was not thereby implied.

The words in the present case, “or as much as shall remain,” would seem to lie somewhere in between the last-mentioned two phrases—although in Annin v. Vandoren, supra (at p. 144), the chancellor expresses himself as of the opinion that “so much as remains” is equivalent to “so much as remains unexpended” or “so much as remains undisposed of.”

In Naundorf v. Schumann, 41 N. J. Eq. 14, Chancellor Bun-yon holds that the phrase “what shall remain” (which I conceive, unquestionably, to be equivalent to “so much as shall remain,”) does not imply a power of disposal in the life tenant. In Rodenfels v. Schumann, 45 N. J. Eq. 388, however, the same part of the same will was again before this court, and the same phrase was held- by Chancellor McGill to imply the power of disposal.

In Bryan v. Bryan, 61 N. J. Eq. 45, Vice-Chancellor Pitney holds that the words “the remainder that may he left” imply the power of disposal in the life tenant, following Rodenfels v. Schumann, supra. Yet in Tooker v. Tooker, 71 N. J. Eq. 513, he holds that the words “what remains,” or words equivalent thereto, do not give rise to such implication; the opinion in this behalf being unnecessary, since by other words in the will there considered it was clear that testator had not intended to give the power of disposal.

Since the Toolcer Case there have been apparently but two cases adjudicated in this state which in anywise deal with the question. (Bennett v. Association, &c., 79 N. J. Eq. 76, deals with a will where the power of disposal was given, in express words.) McCloskey v. Thorpe, 74. N. J. Ecq. 413 (reversing S. C., 73 N. J. Eq. 202), decides; that a power of disposal is implied by the words “if there should be anything left.” The opinion mentions the opinion in the Tooher Case, without either approval or disapproval, ¡minting out that the wording “if. there should be anything left” give stronger support to the implication of the power than the words “iohat remains.”

The last case is Brohm v. Berner, 77 Atl. Rep. 517, where the court of errors and appeals, affirming a judgment in the supreme court, expressly decides that “an unlimited power of disposal” in the first donee “arises by necessary implication” from the will there under consideration, where the qualifying phrase used was “the balance.” It is true that the opinion points out that the original gift is of testator’s entire real and personal estate and is given directly to the first donee (his wife) for “her own private use forever,” and that the word “use,” thus employed, “implies something more than a mere usufruct.” But the opinion proceeds to construe “balance” as being equivalent to “what remains,” and as being “almost identical with the provision of the will construed in Annin v. Vandoren, supra”—i. e., “such part thereof as remains unexpended”—and approves the decision in this behalf in Annin v. Vandoren. The opinion in the Tooher Case is then discussed—and while it is neither expressly approved or disapproved, I am unable to escape the conclusion, from what is there said and from the effect of the opinion as a whole, that the general proposition laid down in the Tooher Case is impliedly disapproved, and that where a testamentary gift over is qualified by the phrase “so much as remains,” or “whatever remains,” or equivalent language, an unlimited power of disposal in the first taker is to be deemed implied thereby, unless there be other provisions in the will indicating an intention to the contrary.

I feel constrained, therefore, to hold that in the present case Sarah A.- Patterson takes, under the will of her sister Clara, a life estate in Clara’s undivided shares, together with an unlimited power of disposal—for I find no other provision in the will indicating a different intention. It is true that the will goes on to provide for substitutionary takers of the gift over, in the event of certain contingencies, and designates the property given to them as “the remainder of my estate” but it is impossible to say that she meant thereby a technical estate in remainder after a life estate with no power of disposal, and did not mean thereby “so much as shall remain at the death of Sarah A. Patterson undisposed of by her.” On the contrary, it is perfectly obvious that that which she gives to these contingent takers is precisely the same property and estate which she gives in the first expression of the gift over to the unmarried nieces; it provides merely for what is to be done with that which she gave to the unmarried nieces, in the event that there be no unmarried nieces to take.

Of the other children of Susan B. Patterson, Ella died November 1st, 1916, intestate, leaving a. husband, Thomas S. .Pursel, and four children—Thomas S. Pursel, Jr'., Mary L. Pickel, Clara Winter and Stanley Pursel. (Of these children, the first two are married; the third a widow, and the fourth a minor.) Hence, Ella’s one-fifth remainder in tract A, by reason of the provisions of Susan B. Patterson’s will, became vested inclefeasibly in Ella’s four children, each taking an undivided onetwentiéth of that tract. The wife of Thomas Pursel, Jr., has, of course, no vested inchoate dower in his one-twentieth, since the whole of tract. A is in the possession of the life tenant, Sarah, and the husband must be seized in order to endow the wife.. Our Dower act (2 Comp. Stat. p. 2043 § 1) enlarges the common law rule only to the extent that the seizin of a trustee for the husband is made equivalent to the husband’s own seizin. The wife here has, however, a contingent interest. Conversely, while the proofs fail to show that any issue had been born to Mary L. Pickel, nevertheless, her husband has also at least a contingent interest in remainder in her one-twentieth. Hackensack Trust Co. v. Tracy, 99 Atl. Rep. 846. Ella’s one-fourth share of tracts B and C passed by the statute of descent to her four children, giving them each a.n undivided sixteenth—subject, however, to the curtesy of her husband, which became consummate on her death in 1916—she, together with her coparceners, having become seized of these tracts on the death of Susan B. Patterson. It is, perhaps, unnecessary to refer to the fact that section 7 of P. L. 1915 p. 61, purporting to abolish curtesy, was adjudged unconstitutional in Reese v. Stires, 87 N. J. Eq. 32, and probably would not have affected this husband’s, right in any event. Class v. Strack, 85 N. J. Eq. S19; Hackensack Trust Co. v. Tracy, supra. It may be noted, however, that that statute was not repealed until 1917, and was therefore in existence at the death of Ella Pursel—as an amendment to the statute of descent—and by section 6 thereof gives to the husband by descent a life estate in one-third of the wife’s lands. Section 6 is valid (Barry v. Rosenblatt, 90 N. J. Eq. 2), notwithstanding the invalidity of section 7. But it is obvious that the husband’s estate by the curtesy in all the wife’s lands can in nowise he enlarged by his taking by descent a life estate in one-third of those lands. The statute would, however, operate on lands of which the wife was not'actually seized.

William Patterson was a married man in 1903. The bill al-' leges that he has since been divorced by his wife, Anna. She is not a party to the suit. The only evidence of the alleged divorce is the testimony of Sarah Patterson that her brother, William, “was divorced from his wife, Anna' and has not since remarried.” This is, obviously, insufficient evidence to warrant the turning over to William of any share of the proceeds of sale upon an order of distribution, without securing Anna’s possible interest therein; but he has no interest in tracts’ B and C, and his one-fifth interest in tract A is of the remainder, subject to Sarah’s life estate.

Mary Patterson is married to Ethan A. Weaver, and has two daughters, Marguerite and Gertrude. Her husband, therefore, has an inchoate curtesy-in her one-fourth share of tracts B and C. He has no inchoate curtesy in her one-fifth share of tract A, which is still in the possession of the life tenant, Sarah. Seizin of the wife is requisite to the husband’s curtesy. Hackensack Trust Co. v. Tracy, supra; Hopper v. Demarest, 21 N. J. Law 525 (at p. 542); 17 C. J. 418, § 11, and 425, § 30. He has, however,.a contingent interest—contingent upon the death of Sarah before Mary. The daughters, Marguerite and Gertrude, are the only nieces of Clara Patterson now remaining unmarried, and under the provisions of Clara Patterson’s will, they are therefore vested with the remainder in the undivided one-fifth of tract A and the undivided one-fourth of tracts B and C, owned by Clara Patterson at her death, subject, however, to divestiture in the event of their marriage before the death of Sarah, and, possibly, also,' pro tanto- by the birth hereafter of other nieces of Clara Patterson prior to Sarah’s death; subject, also, of course, to Sarah’s life estate and her unlimited power .of disposal.

It is clear from the proofs that there must be a decree for sale. Actual partition is utterly impractical. Tract A consists of a dwelling-house and small lot whereon it is erected. Tract B ■ consists' of a similar house and lot, and tract C of a forty-foot lot whereon is erected a double house.

Sarah, as life tenant of tract A, by her answer consents to the sale of-tract A, pursuant to section 27 of the Partition act. 3 Comp. Stal. p. 3906. She likewise consented to the sale of her life estate in the share in remainder of tracts A, B and C, devised to her by Clara’s will, although such consent seems unnecessary under sections 26 and 4-5 of the act. It is not necessary to decide whether or not the sale, in connection with the statements and claims in Sarah’s answer, will operate as a disposition by Sarah in her own behalf (of the share devised by Clara Patterson with power of disposal) sufficient to cut off the remaindermen under the Clara Patterson will, from any claim to the proceeds of sale in case, for instance, Sarah should die after decree and before distribution. Sarah is entitled to have this share paid over to her, under section 50 of the act, and, in view of her unlimited power of disposal, it would seem that she need give no security. She is, of course, entitled to have paid over to her her own undivided one-fifth remainder in tract A and one-fourth in tracts B and C, and under section 50 she is entitled to have paid over to her the entire net proceeds of tract A, to be used and enjoyed by her for her life or until marriage. In such event, however, she may be required to give security for the protection of the- three undivided' one-fifths in remainder which -were devised to Mary, Ella and William.

Under section 27, it is, apparently, contemplated that commutation of the value of life estates and remainders may be made.

The final determination of these matters may, however, await the application for order of distribution.

The proofs show no liens or encumbrances on any of the several shares.

A decree for sale in partition will be advised, adjudging the shares or interests of the several parties as hereinbefore set forth. The sale and conveyance will, of course, include the several dower and curtesy interests.


text:
    Joseph F. O’Neill et al. v. Abe Linowitz.
    [Decided September 14th, 1920.]
    1. On application to open decree pro eonfesso and for leave to file answer, any reasonable ground for indulgence will be deemed sufficient excuse for defendant’s default, provided the application be made with due promptness.
    2. Even where such excuse is sufficient, the application will not be granted where defendant fails to show by affidavit detailed facts evincing that he has a bona fide defence.
    3. Where defendant answers by leave of court, he is not permitted to set up all defences which he might interpose where answering of right, but will be restricted to those of his defences which are equitable.
    4. Hearsay is equally as incompetent in affidavits as in oral testimony.
    On motion to open decree pro eonfesso.

      Mr. William M. Jamieson■, for the complainants.

      Mr. Henry H. Wiitstein, for the defendant.
   Buchanan, Y. C.

Complainants by their bill of complaint seek specific performance by defendant as vendee of a contract of purchase and sale of complainants’ lands. . Decree pro confesso was regularly entered against defendant upon his failure to answer or otherwise plead.

Defendant now applies for an order reopening the decree pro confesso and permitting him to file an answer. The answer which he asks leave to file is annexed to the notice of motion, together with an affidavit as to the facts and circumstances relied on as grounds for the making of the order sought. Counter affidavits were filed by complainant.

This, of course, is the proper practice. Orders opening decrees by default and granting leave1 to answer, while freely made in proper cases, are not made as of course, nor ex parte. The motion must be supported by affidavits showing that defendant has in fact a meritorious defence, and the reason for the default; it must be made on notice, and complainant has the right to submit opposing affidavits. The decree, if opened, is not opened to permit the filing of any and all answers, but only an answer setting up solely such of the defences submitted on the motion as may be specifically permitted. Pike v. Henderson, 48 Atl. Rep. 551.

In the present case the showing made by defendant is, that the failure to file answer within time was due to the unexpected protraction of engagements of his counsel in other courts. In this behalf, any reasonable ground for indulgence is sufficient if application be made within reasonable time. Emery v. Downing, 13 N. J. Eq. 59; Tipton v. Randall, 87 N. J. Eg. 387, 390. Defendant’s present application was made within reasonable time and his excuse is sufficient.

Remain the questions as to whether defendant shows that he has in fact a defence or defences, and whether such defences, or any of them, axe valid, meritoxious and equitable. Not for every defence, though valid, which might have been pleaded within time, will leave be given to be set up after decree pro• confesso. Where defendant answers not as of right but by leave of the court, he will not be permitted to set up othe'r than equitable defences. Vandeveer v. Holcomb, 22 N. J. Eq. 555.

In the present case a specific draft of answer is sought to be filed. Before proceeding to the substance of the defences therein set up, it may be pointed out that it is bad as to form. Leave will not be granted to file an. answer which is so defective that it would immediately be stricken out on motion. I will, however, consider tire motion as one for leave to file proper answer setting up the defences mentioned in the form submitted. The draft of answer, in the first part thereof, denies most of the allegations of the bill. The second defence, in effect, admits the-making of the contract and that the terms were reduced to writing and were as complainant sets them out in the bill, but pleads the statute of frauds by denying that he, defendant, signed it. The third defence is lack of mutuality—based on the allegation that the complainant wife did not acknowledge the execution by her of the contract, that it was therefore invalid as to her under the act concerning conveyances, and that specific performance could not be decreed against her, and, hence, will not be decreed against defendant.

To the issues which would be raised by the general denials of the allegations of the bill no concern need be given, for there is nothing whatever' in tire affidavit in support of the motion which denies any of the allegations of the bill. Detailed allegations, duly verified by affidavit of the facts which defendant claims to constitute a. defence, must be presented to the court. Disbrow v. Johnson, 18 N. J. Eq. 36; Boyer v. Boyer, 77 N. J. Eq. 144. Cf. also, at law, Miller v. Alexander, 1 N. J. Law, 459. Not only are there none such here presented, but there is not even a statement anywhere in the affidavit which, is presented that defendant has, or even claims to have, any of the defences which would be interposed by the denials in the first part of the suggested answer.

Next, as to the defence of the statute of frauds. Assuming that the affidavit on behalf of defendant sufficiently alleges that defendant did not sign the alleged contract, or any contract, that does not meet -the requirement. The statute of frauds is an affirmative defence. When pleaded, it must be fully pleaded. The bar of the statute is not effective, by its own provisions, if the contract is signed by someone duly authorized by defendant, any more than if it is signed by defendant himself. And an allegation that defendant did not sign is not an allegation that the contract was not signed by some one authorized by him. Both averments are necessary. But in fact there is not even an allegation that defendant himself did not sign. There is no affidavit by the defendant at all. The affidavit submitted is that of defendant’s solicitor, and the allegation is merely that he, the solicitor, is informed by defendant that defendant did not sign. Hearsay is just as incompetent in affidavits as in oral testimony. Bull v. International Power Co., 87 N. J. Eq. 1. On the other hand, both complainants swear that he did sign and produce a like affidavit from a disinterested gentleman of the highest credibility, the president of a trust company, who was present and saw defendant sign. (The contract itself it appeared had been temporarily lost or mislaid.)

Finally, as to the defence of invalidity of the contract as to the wife, for. lack of acknowledgment by her, and consequent want of mutuality. Section 39 of the act respecting conveyances (P. L. 1918 p. 119) has been construed to mean that a contract of sale by a married woman is invalid to affect her interest in lands unless it be acknowledged by her and such acknowledgment certified by the official before whom the acknowledgment is made. The statute by no means makes her contract void, but merely deprives it of efficacy to pass title. Wolff v. Meyer, 75 N. J. Law 181. Defendant contends that the contract in question here was not acknowledged by the complainant wife, and, hence, could not be enforced against defendant.

This question, however, does not need determination, for the reason that there is no allegation in the affidavit in support of the motion, of any lack of acknowledgment or certification. De-' fenclant’s counsel contends that the lack of such allegation in the affidavit filed by him is cured by allegations in complainants’ counter affidavits. In this, however, he is mistaken. Complainants’ affidavits contain allegations of circumstances showing what substantially amounts to an, acknowledgment by the wife. There are no allegations of certification, but the lack of such allegations can by no means amount to admission of failure of certification—certainly not, in the absence of any allegation of failure of certification in defendant’s affidavit.

It may well be that the defences of the statute of frauds, and of the failure of. acknowledgment or certification, come within the category of defences which are purely legal and not equitable, and which; therefore; as stated in Vandeveer v. Holcomb, supra, a defendant after decree pro confesso will not be allowed to set up. I express no opinion on this point, however, for the reason that defendant’s affidavit, as heretofore pointed out, contains no evidence of any facts indicating the existence of any such ’defences.

The application will be denied, with costs.


text:
    Bijur Motor Appliance Company v. International Association of Machinists, District No. 15, et al.
    [Decided September 21st, 1920.]
    1. Quccre—In punitive contempt proceedings, does an appeal lie from order of adjudication and for punishment?
    2. If such appeal does lie, the filing of notice of appeal suspends the force and operation of the decree pending the appeal, and respondents are entitled to stay of execution, or—if serving of sentence has already-been begun—to temporary release.
    3. Order for release pending appeal granted—the serving of sentence having been commenced, respondents’ claim of right of appeal not being frivolous or sham, application to the court of errors and appeals being impossible until a later date, and application to this court having been, made properly.
    In the matter of the alleged contempt of Albert Thorry et aL

      On proceedings to punish for contempt. On application for stay, &c.

      Mr. Marie A. Sullivan, for the motion.

      Mr. Merritt Lane, contra.

   Buchanan, V. C.

Albert Thorry, Vincent Giamona (Gramona), George Miller, William Murray, Stephen Rethmann, Samuel Peterson, Abraham Ebert, Louis Mangold and Patrick Musto were, by order and decree of this court on August 31st, 1920, adjudged guilty of contempt of court for violation of an interim redraining order, and punishment of three months’ imprisonment in the Mercer county jail and a line of $50 was imposed upon each of them. Warrants were immediately issued and the respondents committed thereunder.

The respondents have now filed in this court a notice of ap'peal from the said order and decree to the court of errors and . appeals, and application is made by them to this court for an order stajdng the further enforcement of execution of the decree and releasing them from the custody of the sheriff, pending the determination of the appeal.

It is contended by counsel for the respondents that they have the right of appeal, and ‘that the case is one where under the law the appeal should stay enforcement of the decree, and that therefore the order for release from custody, requisite for effectuating such stay, should be made as of course.

The distinction between the two classes of contempt proceedings—the so-called civil or remedial contempts; on the one hand, and the so-called criminal or punitive craitempts, on the other—has been frequently pointed out. Staley v. South Jersey Realty Co., 83 N. J. Eq. 300 (at p. 303). The proceeding resulting in the decree now appealed from was not for the purpose of affording relief inter partes, but of the punitive or criminal class. Prior to 1909 no appeal \&y from a decree of adjudication of contempt and for punishment, in this latter class of contempt proceedings, except (perhaps) for lack of jurisdiction. The decree was not reviewable on the merits. Dodd v. Una, 40 N. J. Eq. 722; Grand Lodge, K. of P., v. Jansen, 62 N. J. Eq. 737 (at p. 740); Frank v. Herold, 64 N. J. Eq. 371 (at p. 372); Seastream v. New Jersey Exhibition Co., 72 N. J. Eq. 377.

Punitive or criminal contempt proceedings are themselves subject to further classification. There are direct contempts, or contempts in facie enrice, and indirect or consequential con-tempts. As is pointed out in Re Merrill, 88 N. J. Eq. 261 (at p. 275), direct contempts are not necessarily committed in the actual presence of the court. It is patent that there may be just as flagrant acts of direct contempt away from the presence of the court as in the court room. However, there is an actual physical distinction between acts committed in the presence of the court and those committed elsewhere, and this distinction was made by the legislature in the statute (P. L. 1909 p. 270), by the provisions whereof, an appeal is given from decrees in contempt proceedings, in those eases where the proceeding is punitive, and where the alleged contempt was committed elsewhere than in the presence of the court.

The' contempt in the case now under consideration comes within the purview of this statute, and therefore the respondents have the right of appeal, unless the statute is unconstitutional and therefore invalid.

Assuming, in the first place, that the act be valid, it seems clear that the case is, indeed, one where the taking of the appeal should stay the enforcement of the decree.

The law of this state is that when air appeal is taken from a decree in chancery, the act of filing the appeal suspends the force and operation of the decree appealed from, whenever and to the extent that it be necessary for the preservation of the subject of the appeal in such condition as is requisite for the rendering of an efficacious appellate decree. Pennsylvania Railroad Co. v. National Docks Railway Co., 54 N. J. Eq. 647; Robinson v. Robinson, 86 N. J. Eq. 165.

Certainty, in the present case, the actual incarceration and serving of the sentence by the respondents is a very essential part of the subject of the appeal. If the serving of the sentence be not suspended, then by the time the appeal be heard and determined practically the entire sentence will have been served; the subject of the appeal, or the most important part thereof, will have been destroyed, and it will be impossible for the appellate court “to render an efficacious decree in the premises” if the appeal result in reversal, for by no human ingenuity can the imprisonment be obliterated from the lives of the respondents, or the status quo ante be restored. In Robinson v. Robinson, supra, the appeal was from a decree for permanent alimony, and it was pointed out that each installment of alimony paid pending the appeal, would be in execution pro tanto of the decree, and -to that extent an impairment of the subject of the appeal. So, likewise, in the present ease, each day of the sentence served, would be an impairment pro• tanto of the subject of the appeal.

It cannot be doubted, therefore, that if the warrants of commitment had not been, issued at the time the appeal was taken, the issuance thereof would have been stayed by the filing of the notice of appeal. The warrants, however, having issued, and the respondents having been committed and in the custody of the sheriff thereunder, affirmative action is required, in tire nature of an order’ directing the sheriff to release them from custody pending the appeal, to effectuate the stay to which they are entitled in order to preserve the subject of the appeal. That such an order should be made, if this court has the power- to make it after the filing of the appeal, is clear from what has already been said. That this court has the power to make such an order I think is beyond question. See Robinson v. Robinson, supra; Ashby v. Yetter, 78 N. J. Eq. 173, and cases cited.

It is suggested that the appeal which has been taken is in fact frivolous, and that for that reason the application should be denied, in line with McMichael v. Barefoot, 85 N. J. Eq. 139. It is true that the jurisdiction of this court to try alleged con-tempts against it is unquestionable, and that the respondents were served with process, appeared personally in court, had the opportunity to cross-examine the witnesses and rebut the proofs which were made in open court (of which they declined to avail themselves) and stated that they did not deny that which had been charged and testified to against them. Nevertheless, not only the law and practice as to injunctive proceedings in strike cases (for issues in this category may be involved in the appeal if the right of appeal on the merits does exist), but also as to proceedings in contempt, have in recent years undergone considerable development, so that it cannot be said with certainty that they are as yet completely and definitely settled. I take it that a court of equity, particularly, should hesitate to denounce any proceeding as sham and frivolous unless the fact of its being of that character be open to no question. When it is further borne in mind that in cases of this kind the trial of the contempt is by the same judicial officer before whom was held the hearing resulting in the decree alleged to have been contemned, so that the adjudication of jurisdiction, and of the issues of fact and law in the original case, and the propriety and validity of the decree made therein, and also' the adjudication of the issues of fact and law in the contempt proceedings, all rest upon and in the determination of a single judge, such judge may well, indeed, be reluctant to say in any given case that an appeal therefrom is absolutely without merit.

It will be remembered that the discussion thus far has been on the assumption that the statute of 1909 purporting to give respondents their right to the present appeal is valid and constitutional. It may be said that there is at least grave doubt ,as to its constitutionality. As has been said, prior to the passage of that enactment, decrees in contempt proceedings were absolutely final and not reviewable on the merits. The reason and necessity for this is shown in the cases collected and referred to by counsel in Dodd v. Una, 40 N. J. Eq. 672 (at p. 687), et seq.

In Flanigan v. Guggenheim Smelting Co., 63 N. J. Law 647, the court of errors and appeals dealt with a statute purporting, in substance, to give to the appellate court the right to review the judgments of the supreme court in respect to questions as to the verdict being against the weight of evidence, and as to damages being excessive. It was held that the final and non-reviewable character of the judgments of the supreme court in these respects was a vital quality of such judgments; that the right and power to render judgments (in these respects) of that character inhered in the supreme court at the adoption of the constitution and the continuance of such right was guaranteed by the constitution; and, hence, that the statute purporting to give the right of review, impaired the jurisdiction of tire supreme court, violated the constitutional guaranty and was therefore invalid.

The case sub juclice seems to be quite analogous, and if I deemed it necessary or advisable to decide the question, I might well feel justified in holding the statute of 1909 unconstitutional and invalid. Here, again, however, the question is by no means free from doubt, and it cannot be said that on this ground either the appeal is frivolous and sham, for, in Staley v. South Jersey Realty Co., supra, an appeal from! an order of this court, adjudicating and punishing a criminal contempt, was entertained and decided by the court of errors and appeals, under the authority of the statute in question. (It must be said, however, that the question of constitutionality was not raised in that case.) Moreover, notwithstanding the language of the opinion of Mr. Justice Depue in Dodd v. Una, supra, that in contempt proceedings, purely punitive, no appeal lies therefrom by either party (the cases cited by counsel and approved by Mr. Justice Depue apparently holding that a review on the ground of lack of, jurisdiction must be by habeas corpus and not by appeal), it must be noted that that opinion was a minority opinion, the majority opinion expressly refraining from any pronouncement upon that point; the express and unanimous decision of the same court in Grand Lodge, K. of P., v. Jansen, supra (at p. 740), that the punitive portion of the order there appealed from was not appealable and could not be considered, has the posáibly significant qualification, that the order was within this court’s jurisdiction; and the lang-uage of the unanimous opinion of the court of errors and appeals in Seastream v. New Jersey Exhibition Co., supra, that a punitive contempt proceeding “is not reviewable by an appellate tribunal [the italics are mine] except for the lack .of jurisdiction in the court in which the proceeding is had,” is somewhat of an intimation that the proceeding may be reviewed by appeal, on the question of lack of jurisdiction. There is nothing in the present case to show upon -what ground the appeal is taken—the notice of appeal, of course, does not state the ground of appeal. The question of jurisdiction was not raised in the proceedings in this court, but that does not preclude its being raised on the appeal. Dodd v. Una, supra (at p. 713). Again, there is in Frank v. Herald, supra (at p. 37) (a pronouncement of the court of errors and appeals subsequent to that in Flanagan v. Guggenheim Smelting Co., supra), an intimation of the possibility of doubt that the powers of this court are not subject to abridgement by the legislature. Taking all this into consideration, therefore, it cannot be said that the lack of appeal in the respondents is beyond the possibility of reasonable argument.

Application for the. order sought cannot be made to the court of errors and appeals until the next conference day of that court —approximately, a week hence.

In this situation, then, as long as there exists any doubt whatever, I think that a court of equity should give to these respondents the benefit of that doubt, and grant the order for release pending the determination of the appeal, thus avoiding any possibility of the erroneous incarceration of the respondents for even such a short period as would intervene before application for such release could be made to the court of errors and appeals.

Such an order will therefore be advised.


author: Fielder, Y. C.

text:
    George F. Weber, executor, v. Mary Ella Bardon et al.
    [Decided October 20th, 1920.]
    1. The personal estate of a testator is the primary fund out of which legacies shall be paid.
    2. Where a testator bequeathed legacies in his will in excess of his personal estate, and made a specific devise of his real estate-in trust for the benefit of Ms wife and daughter during their lives, giving his trustee a power of sale of his real estate, but directing the trustee to invest the proceeds of such sale for the benefit of his wife and daughter, the deficiency in the payment of the legacies is not charged upon the real estate.
    On bill for construction of will.

      Mr. Edward A. Quayle, Jr., for the complainant.

      Messrs. King & Vogt, for the defendants.
   Fielder, Y. C.

The bill of complaint is filed by the executor and trustee of Fred B. Bardon, deceased, praying for instructions with regard to the payment of legacies bequeathed by the will and codicils of deceased. The testator died March 17th, 1916, leaving a will dated June 10th, 1910, and two codicils dated, respectively, April 10th, 1911, and December 4th, 1911. The will directs payment of his debts and funeral expenses; provides for the erection of a monument; makes several bequests of legacies in specific sums of money and thereafter continues as follows:

“X give and devise unto my executor, hereinafter named, in trust, all my real estate, to be held and used for the support and maintenance of my wife, Mary Ella Bardon, so long as she remains my widow, and of my daughter Ella Pearl Coultas, giving, however, to the said trustee the power and authority to sell any, or all of my estate, • either at private or public sale, if lie deems best, and to execute and deliver to the purchaser, or purchasers of the same, good and sufficient conveyances in law for the same and to invest the net proceeds of the same in some safe securities, and to pay to my said wife and daughter the annual interest thereof, and if the interest received from the principal be not sufficient for their support, then to pay to them out of the principal, from time to time, such sums as may be necessary for their support. If my said wife should marry again, or at her death, then at such time, the portion having been paid to her shall be paid to my said daughter, and at the decease of my said daughter I give, devise and bequeath all the rest and remainder of my estate, unto the child or children of my said daughter, when of full age, to them, their heirs. If my said daughter should die leaving no child, or children surviving her, then I give, devise and bequeath all my estate to All Souls Hospital of Morristown, New Jersey, to and for its sole use and benefit.”

By the first codicil the testator revokes two bequests in his will, amounting to a total of $1,000, and substitutes in lieu •thereof a new bequest of $2,000, and the codicil continues:

“In case of my wife’s -and daughter’s deaths, and the former leaving no children, then I wish all my estate remaining at that time to be given to S. Elizabeth Kettenring, of Madison, New Jersey, provided she is unmarried. If she is married then the former provision in the last item of original will be carried out. If my daughter should die leaving a child or children, then such child or children should share equally with S. Elizabeth Kettenring, of Madison, New Jersey, in division of property, at the time of my daughter’s death, provided said S. Elizabeth Kettenring should be unmarried. If no children remain, and Miss S. Elizabeth Kettenring be married, then the entire estate shall go to All Souls Hospital of Morristown, New Jersey.”

The second codicil merely revokes a legacy of $500 bequeathed by the will.

The testator died seized of personal property inventoried at $298.33 and of real estate valued at $10,000. His legacies amount to a total of $3,100, but the legatee of a $2,000 beqitest is said to have renounced her legacy and to have filed a written refusal to accept it. The personal estate being insufficient to satisfy the remaining legacies of $1,100, the question presented is whether they are a charge on the real estate.

The rule laid down in Leigh v. Savidge, 14 N. J. Eq. 124, and followed in a long line of decisions of our courts, not necessary to cite here, is that the personal estate is the primary fund out of which legacies are payable. The real estate is not charged with the payment of legacies unless the testator intended it should be, and that intention must be either expressly declared or faiidy and satisfactorily inferred from the language and dispositions of the will.

This case is submitted on bill and answer, no testimony having been taken, the parties not having even availed themselves of the privilege of showing the amount of the testator’s personal property at the time he made his will, as they were entitled to on the authority of Leigh v. Savidge, supra, and Johnson v. Poulson, 32 N. J. Eq. 390, for the purpose of disclosing what relation such personal estate then bore in value to his real estate and thus throwing some light on his probable intention. Perhaps, such evidence was not obtainable. As the case stands, I must spell out the testator’s intention solely from his will and codicils.

There is nothing in the will expressly declaring an intention to make the legacies a charge on real estate. The legatees, who are the defendants in this suit, rely on the rule stated in Corwine v. Corwine, 24 N. J. Eq. 579, and followed by our courts in many subsequently reported cases, to the effect that if legacies are given generally, and the residue of the real and personal estate is afterward given in one mass, the legacies are a charge on the residuary real, as well as personal, estate, and they point to the words “all the rest and remainder of my estate” and “my estate remaining,” contained in the clauses of the will and codicil above quoted, as declaratory of the testator’s intention to give, bequeath and devise all his personal and real property as a residuary estate remaining after all payments directed by the will and codicil had been made, including the legacies to the defendants. The term “estate” is a most comprehensive one, and, standing without qualification or explanatory words, would include all the testator’s property, real and personal (Cook v. Lanning, 40 N. J. Eq. 372), but the expressions upon which the defendants rely must be read with the context of the clauses of which they are part, and the rule in Corwine v. Corwine can prevail only where the usual and ordinary meaning of such expressions is not restrained or avoided by other words or provisions in the will, to which due effect must be given in endeavoring to collect the intent of the testator. Johnson v. Poulson, supra; Shannon v. Ryan, 111 Atl. Rep. 155.

It will he observed that nowhere in the will does the testator specifically mention his personal estate, or refer to it as such, and that he made no specific disposition of his personalty, whereas he does make specific devise of his real estate. The plan he seems to have had in mind was first to provide sums of money which would naturally come out of personal estate, for legatees who, so far as the will discloses, were not related to him, and then his mind turned to his wife and daughter, and for their use and benefit he placed his real estate in trust, and, finally, still dealing with his real estate, he provided for his grandchildren. If this was a specific devise of real estate, then the legacies cannot be charged against such derise. Leigh v. Savidge, supra. Weight must be given to the fact that he gave no personal property to his executor in trust, and that in creating the trust estate he did not use the word “bequeath,” which is applicable to personalty, but that he said “I give and devise unto my executor hereinafter named, in trust, all my real estate;” also to the fact that he gave to his executor, as trustee, power of sale, not declaring that such power might be necessary for the benefit of his legatees, but directing that the proceeds of sale should be invested for the benefit of his wife and daughter; also „to the fact that he provided that the principal arising from the sale of his real estate might be used for the support of his wife and daughter, a provision inconsistent with the idea that any part of his real estate should go to his legatees. It is after he gave his executor authority to convert his real estate into money and after he had provided for his wife and daughter for their lives that he proceeded to make disposition of “all the rest and remainder of my estate,” and it was then that he used the word “bequeath,” a word which the scrivener deemed applicable to the proceeds of sale of real estate.

Considering the context of the quoted clause of the will, and giving weight to all the evidence I can gather from the will, I conclude that when the testator used the words “all the rest and remainder of my estate,” he had in mind only that which remained when the trust he had created and which consisted solely of real estate, or the proceeds of its sale, was at an end. When I examine the codicil, I find that the testa-tor therein) referred to and dealt with that clause of his will which disposed of his real estate and that by the codicil he was only concerned with making a new arrangement for the division ox this part of his estate after the death of his wife and daughter, and I therefore conclude that when he used the words “all my estate remaining” and “the entire estate,” he was dealing only with the estate which.he had placed in trust.

I can find no intention on the part of the testator to blend real and personal property in the gift to his ultimate beneficiary or beneficiaries, but I do find a specific devise of his real estate for definite objects and that such devise is not chargeable with the legacies.