author: Lewis, Yice-Ordihary.

text:
    In the matter of the appeal from a decree of the Passaic county orphans court, admitting to probate a certain paper-writing purporting to be the last will and testament of Franz Ulrich, deceased.
    [Decided November 7th, 1925.]
    1. IVhen a gift by deed or otherwise than by will is made to one who stands in a fiduciary relation to the donor, that gift is presumed to have been obtained by undue influence, and while the principle is not strictly applicable to wills, still the fact of a fiduciary relationship of trust and confidence, coupled with other cireumstanees, indicating a bias or feeling hostile to the natural object of one’s bounty, usually more readily makes a case of undue influence than without the fiduciary or trust relation.
    2. The active agency of the beneficiary of a will in procuring it to be drawn in his favor, especially in the absence of those who have, at least, an equal claim upon the justice of the testator, and •where the testator is enfeebled by old age and disease, is a circumstance strongly indicative of undue influence.
    3. Evidence examined, and held that the will was the product of undue influence, and its probate should be refused.
    On appeal.

      Mr. John W. Ilarding and Mr. Edward F. Merrey, for the appellants.

      Messrs. McOran & Pomfret, for the respondents.
   Lewis, Yice-Ordihary.

This is an appeal by the caveators from a decree of the Passaic county orphans court, admitting to probate the last will and testament of Franz Ulrich, deceased. No written opinion has been filed in the orphans court.

The will was attacked in the court below as being the product of the undue influence of one of the proponents, Langley J. Burchill, a son-in-law of the testator. At the time of his death the testator was eighty-three years of age. He died July 24th, 1921. He left him surviving a widow, eighty-two years of age; one son, Frank; a daughter, Rose Burchill, wife of the proponent above mentioned; a daughter, Catherine Handwerk; two grandchildren, children of a deceased son, Albert, and the widow of Albert. Albert died in 1919. Testator was of Swiss nationality, and had been active and aggressive in business affairs at Paterson, New Jersey, for many years, and had built up a successful establishment there. For many years his sons, Frank and Albert, worked with him in the business, and Frank seems to have been his most active aide. Another plant had been established and was operated at Allentown, Pennsylvania, which stood in the name of the two sons, Frank and Albert, until a short time before the testator’s death. The two sons appear to have worked for comparatively small compensation by way of salary, but the testator gave them property and money from time to time, covering a long period -of years, as he did also his two daughters, Bose and Catherine. In July, 1920, the testator, Franz Ulrich, made a will, which was marked “Exhibit G 6” in the case, by which certain bequests were made to his wife for life, and to his son Frank, and his daughters, Bose and Catherine. His wife, Bosina, his son Frank, and his sons-in-law, Langley J. Burchill and Otto Ilandwerk, were named as the executors of that will. It was drawn by Edward B. Weiss, an attorney-at-law of this state, in the presence of testator’s wife. Burchill was not a beneficiary under that will. The mill property at Paterson, and the assets of the Paterson and Allentown plants, were given to his son Frank, subject to certain charges; the plant at Allentown having been' meantime made over to the testator at the behest of Burchill, who¡, a short time previously, had come to work at the plant in Paterson. He had given up a position held by him in Hew York, and entered the employ of the testator at Paterson at a salary considerably less than he had been receiving, and he testified that he would have taken even less had the testator insisted upon it. Everything appears to have gone along smoothly with the family and the business until Burchill entered the employ of the testator. Frank was the active managing head of the business, especially in the testator’s later years. The testator had relied upon Frank almost entirely in the conduct of the business, and it was his express desire that it should continue on in the Ulrich family after his death. Towards the end of the testator’s life his health became very much impaired and his mental faculties deteriorated to a marked degree, so much so that he was reduced practically to a state of senility, and was physically unable to take care of his person, and at times he was personally very offensive. Doctor McBride, a medical practitioner, who stands high in this branch of his profession, testified that testator’s faculties, mental as well as physical, were at a low ebb for a number of months prior to the time he made the will, which is the subject of this litigation. It was drawn by Mr. Michael Dunn on March 24th, 1921, on the last of four secret visits made by Burchill and testator to Mr. Dunn’s office in Paterson. In Doctor McBride’s opinion, during this period, the testator was, generally, not in a fit condition to transact important business or to appreciate the nature of his property and the natural objects of his bounty, although he thought there might have been times when testator was better than at other times, and he was not prepared to say that there could not have been a lucid interval when testator could have known and appreciated those factors But he was positive in his opinion that, whatever may have been the testator’s capacity from time to time to exercise the function of making his will during that period, his impaired physical condition unquestionably affected his mental condition to an extent that would render him peculiarily susceptible to undue influence.

Shortly after Burchill entered the employ of the testator trouble began. Numerous instances appear in the testimony indicating that Burchill was a mischief-maker, and that he misrepresents facts from time to time in order to influence testator’s mind against his son Frank. This led, eventually, to the testator’s requiring the transfer of the Allentown plant to him, Burchill have represented to him that Frank was really using that business as a competitor. Upon one occasion the father was misled by Burchill into believing that Frank had treated an old customer very meanly by having refused to bill an order sent in by him to the business, whereas the fact was that nothing of the kind had taken place, but that it was another customer whose order had been refused because he was undesirable.

The testator was also led to believe that small peculations were being practiced by Frank and by Frank’s son, which diminished the returns of the business, and these statements by Burchill to the testator turned out to be unfounded. Burchill also assumed authority over and the right to direct the work of Frank’s son, contrary to his real position, and this incident was misrepresented to the testator by Burchill. Testator took umbrage at the situation, but when called upon by Burchill to say who was boss, he at first said that he, the testator, was boss, and then, when taunted by Burchill, said that Burchill was boss,

Other instances appear in the testimony which satisfy me that from the time Burchill entered the employ of his father-in-law, the testator, until the testator’s death, he pursued a course of secret underhand dealings intended to poison the mind of the testator against his son Erank, and prevail upon the testator to prefer Burchill to his son Erank in the disposition of his property. These difficulties referred to led Erank to withdraw from his father’s business on several occasions, but the breaches were healed, and later on he would return. It was after one of these occurrences that the testator made the will of July, 1920, already referred to, which was drawn by Mr. Weiss, notwithstanding the situation that then existed, it will be observed that he bequeathed practically the business and a large portion of his property to his son Erank by the will of July, 1920.

A few months before the death of the testator, Burchill took him to Mr. Michael Dunn, an attorney-at-law of this state, on four different occasions. Mr. Dunn had not been testator’s counsel generally before that, although he testified that he had done some work for him. Burchill had performed professional services for Mr. Dunn when Mr. Dunn was the prosecutor of the pleas of Passaic county. Burchill testified that he did not know the nature and purpose of these visits to Dunn’s office until after the fourth visit, when he said that the testator told him on his way home that he had made another will and had left it with Mr. Dunn. After testator’s death, however, Burchill declared to the other members of the family that he had no knowledge of a will. It was testified that the will of July, 1920, had been destroyed in Mr. Dunn’s office at the time the later will was executed, but upon the trial in the orphans court the prior will was produced by counsel for the caveators, it having been turned over to them by Mrs. Burchill, the wife of the proponent, who had purloined it from her husband’s pocket, Burchill having obtained possession of and secreted it after the testator’s death.

After a minute examination of the testimony, I am forced to the conclusion that it was most extraordinary that the testator, in his weakened mental and physical condition, could have refrained from in some way disclosing to his wife, or to some other member of his family, that he made his new will, if he retained any recollection whatever of it. It seems very probable to me that the old man never remembered making the last will, and forgot it as soon as it was made.

When a gift, by- deed or otherwise, than by will, is made to one who stands in a fiduciary relation to the donor, that gift is presumed to have been obtained by undue influence. However, while that is not strictly applicable to wills, still the fact of a fiduciary relationship, or a relationship of trust and confidence, coupled with other circumstances, indicating a bias or feeling hostile to the natural objects of one’s bounty, usually more readily makes a case of undue influence than without the fiduciary or trust relation. Whether or not I find that a fiduciary relationship existed between the testator and Burchill is, however, not important, because Burchill unquestionably occupied a position of trust and confidence with reference to the testator. The active agency of the beneficiary of a will in procuring it to be drawn in his favor, especially in the absence of those who have at least equal claims upon the justice of the testator, and where the testator is enfeebled by old age and disease, is a circumstance strongly indicative of undue influence.

The former will, which was made in the presence of the testator’s wife, and prepared by Mr. Weiss, gave nothing to Burchill. This was made at time, too, when all the circumstances adverse to Frank, urged by proponents as the reason for his disinheritance, already existed. Yet he was made the chief beneficiary under that will. Testator’s disease had not then impaired his faculties. Eight months afterwards, mentally and physically weakened, he makes Burchill his most favored legatee by the will drawn by Mr. Dunn, prepared on four different occasions, with Burchill in an adjoining room part of the time, and in the presence of testator and Mr. Dunn part of the time, with the whole transaction concealed from every other interested party. Dow, why should Burchill be ignored, and the son Prank and Rosina, the testator’s wife, favored in the will drawn eight months before in the presence of Mr. Weiss and testator’s wife ? And why did he give to- Burchill this large gift by sacrificing the gifts to his wife and his children, given by the will made only eight months previously?

In the former will “the use and income of the entire estate, real and personal,”-are given to testator’s wife during' her life.

In the latter will the only gift to the testator’s wife is the income of a sum “not exceeding $10,000.”

It is argued by proponents that the alleged trouble between testator and his son was the cause of the later discrimination against Prank and in favor of Burchill, but no reason whatever appears why this testator, if of mental capacity and free from influence, should make this great change in the gift to his widow, with whom he remained cordial, in two wills made only eight months apart.

Dot only did the new will change the gifts to the son and to the widow, but the widow was removed as an executrix and thus prevented from having any control of the management of the estate, which was put in the hands of Burchill and the grandson, who might handle the same so that there might be little or no income from it.

I am entirely satisfied that this will is the product of the undue influence exercised by Burchill over the testator, actively encouraged by his wife, who worked with him until she realized that by the later will she, too, was discriminated against, and that her husband had overreached her, and then she switched over to, and became one of, the caveators. At the time the purported last will and testament was read, she was so affected by it that she ran out of the house partly unclothed, in a frenzy, and later on produced the former will and placed it in the hands of the counsel for the caveators, to refute the proponents’ main testimony, after abstracting it from her husband’s possession, who had suppressed it until that time.

I will advise a decree in accordance with these views, reversing the decree below and refusing to admit the purported will offered for probate.


source: Caselaw Access Project

author: Backbs, Vice-Okdinaky.

license: Public Domain

text:
    In the matter of the probate of the alleged will of Marie Haines, deceased.
    [Decided July 14th, 1925.]
    1. An infant en ventre sa mere is for many purposes supposed in law to be born, but- this fiction of the law is indulged only when it works for the benefit of the child.
    2. An infant en ventre sa mere is not “issue living” within the meaning of section 20 of the Wills act, which renders void a will made by a testator, who, at the time, had no “issue living,” and is survived by issue.
    S. In determining whether a testator’s, child, not born at the time he made hie will, is “provided for or mentioned” in the will, the inquiry is confined to an inspection of the instrument.
    On appeal.

      Messrs. Pitney, Hardin & Shinner (Mr. John B. Hardin), for the proponent.

      Mr. Casewell Heine, for the respondent.
   Backbs, Vice-Okdinaky.

Mrs. Marie Haines died June 20th, 1924, four hours after the birth of her only child, Henry T. Haines, Jr. Two months before, April 20th, she executed her last will and testament, now offered for probate, in which she gave her estate to her husband. Section 20 of the Wills act (Qomp. Slat. p. 5865) provides—

“That every last will and testament made when the testator had no issue living, wherein any issue he might have is not provided for or mentioned, if at the time of his death he leave a child, children or issue, or leave hie wife enceinte of a child, or children, which shall be born, such will shall be void and such testator be deemed to die intestate.”

The companion section, 21, reads:

“That if a testator having a child or children born at the time of making and publishing his last will and testament shall, at his death, leave a child or children born after the making and publishing of his said last will and testament or any descendant or descendants of such after-born child or children, the child or children so afterborn, or their descendant or descendants, respectively, if neither provided for by settlement nor disinherited by the said testator, shall succeed to the same portion of the father’s estate as such child or children or descendants as aforesaid would have been entitled to if the father bad died intestate, towards raising which portion or portions the devisees and legatees, or their representatives, shall contribute proportionately out of the part devised or bequeathed to them by the same will and testament.”

These sections are applicable to married women. Walker v. Hyland, 70 N. J. Law 69.

The proponent, the husband, contends that a child en ventre sa mere is “issue living” within the meaning of section 20. This is the first time that question has been presented for decision in this state, so far as the books show, although the two sections have been in existence for more than a century (P. L. 182h p. 171±; Elm. Dig. 600), and counsel say that, after diligent search, they have been unable to find any authority from other states, although many have similar statutes. The same situation must often have arisen, and the absence of judicial declaration is significant of an universal acceptance of the natural and ordinary meaning of the words “issue living” as issue born. That it was in the sense of issue born that the legislature used “issue living” is evident from the language employed in the two sections to meet the two contingencies intended to be provided for — the one, if the testator has no issue living when he makes his will; the other, where he has a child or children born.

By a fiction of the law adopted from the civil law a child en ventre sa mere is supposed in law to be born for many purposes, but only with a single exception, when it- works for the benefit of the child. Thus, it is capable of having a legacy, or a surrender of a copy-hold estate made to it. It may have a guardian assigned to it, and it is enabled to have an estate limited to-its use, and to take afterwards by such limitation, as if it were then actually born. 1 Bl. Com. 130. In Thelluson v. Woodford, 4 Ves. Jr. 227, Mr. Justice Bullard said: “He may be vouched in a recovery, though it is for the purpose of making him answer over in value He may be an executor. He may take under the statute of distributions. He may take by devise. He may be entitled under a charge for raising portions. He may have an injunction, and he may have a guardian.” In Walker v. Great Northern Railway Co., 28 L. R. I. 69, Mr. Justice Johnson, speaking of the authorities, said: “These authorities appear to me to show that the doctrine, which regards an unborn child as born for its own benefit [which is the utmost limit of the doctrine], is a fiction adopted from the civil law by the courts of equity for some, but not for all, purposes, and far more seldom recognized in the courts of law.” The doctrine is illustrated in Hone v. Van Schaick, 3 Barb. Ch. 488, by Chancellor Walworth thus: “Although the second son of the petitioner was not actually born before testator’s death, he must have been begotten many months- before that event. He is therefore to be considered as in esse at the death of the testator, for the purpose of entitling him to this legacy, as one of the grandchildren of the testator then living. Eor an unborn child, after conception, if it is subsequently born alive and so far advanced to maturity as to be capable of living, is considered as in esse from the time of its conception, where it is for the benefit of the child that it should be so considered.” And in Marsellis v. Thalhimer, 2 Paige Rep. 35, the chancellor said: “It is at this day a well-settled rule of law relative to succession, - and to most other cases in relation to infants, that a child en ventre sa mere, as to every purpose where it is for the benefit of the child, is to be considered in esse. In McKnight v. Read (Pa.), 1 Whart. 213, the court, in referring to the doctrine, observed that “The rule results from a principle, deduced from the equitable rule of the civil law, which declares that infants, who are, as yet, in their mother’s womb, are considered as already brought into the world, whenever the question relates to anything which may turn to their advantage. The rule is intended entirely for the benefit of the infant, and is clearly stated by Swinb. 304 § 14: ‘When the child is in the mother’s womb at such time as the testator dieth. If we would in this case know whether that man is to be judged to have died without issue, we must consider, whether it be for the benefit of the child, that the father should be accounted to have died without issue or not. For howsoever the rule be, that he is not said to die without issue, whose wife is with child at his death, yet that rule ought to take place when it tendeth to the benefit of the child, not when it tendeth to the prejudice of the child, or only benefit to another.’ ‘Wherefore’ [says the writer], ‘if the testator make thee this executor, or give thee £100, if he die without issue, after which will was made, he dieth, leaving his wife with child. In this case he is reputed to die without issue, and so thou art admitted to the executorship, and mayest receive thy legac3r, unless it be more beneficial to the child that his father should have been reputed to have died without [sic] issue; for then thou art excluded.’ The principle as above stated, although not en-grafted into the common law without jealousy, may now be taken as firmly established. The rule unquestionably is that an infant en venire sa mere shall be considered, generally speaking, as born for all purposes, for his own benefit.”' Wilson v. Fritts, 32 N. J. Eq. 59; Randolph v. Randolph, 40 N. J. Eq. 73, and Van Wickle v. Van Wickle, 59 N. J. Eq. 317, are illustrations of the doctrine, although no reference is made to it. As recently as 1907 Lord Loreburn, L. C., in Villar v. Gilbey, 1 B. R. C. 568, noting in Trower v. Butts, 1 Sim. & S. 181, a posthumous child was held to be included under the words “born in the father’s lifetime,” on the ground that the construction was for the child’s benefit, and that Lord Westbury, in Blasson v. Blasson, 2 De G. J. & S. 665, had spoken of “this peculiar rule of construction, which is limited to eases where such construction of the word Torn’ is necessary for the benefit of the unborn child,” and that the court of appeals, in the case under review, deduced from these cases a broader rule, regardless of the circumstances whether the construction is for the benefit of the child or not, observed that the sentence quoted from Lord Westbury accurately states the rule and the limitation, and that he could not accept the rule without the limitation, because there is not authority for such a view. In that case the devisee was entitled to an estate for life if born in the testator’s lifetime, to an estate tail if born afterward. He was born in the month after the testator died. It was held that inasmuch as the effect of applying the rule of construction would not be for his benefit, but absolutely to his prejudice, it had no application. Lord Atkinson, in a concurring opinion, analyses the authorities. The exception to the rule is that, where the rule against perpetuities is involved, a child en ventre sa mere at the time of the testator’s death, and subsequently born, will be treated as alive at the time of the testator’s death, whether it is for the benefit of the said child or not. In re Wilmer's Trust (1903), 2 Ch. 411; Villar v. Gilbey, supra. The fiction is inadmissible, because it would work a complete dishersion of the infant.

The object of .the act is to guard against testamentary thoughtlessness. Stevene v. Shippen, 28 N. J. Eq. 487. And it is urged from this that the legislature intended by “issue living” to include a child conceived and not jret born as well as children born; and that where, as here, the birth of a child was imminent, and known to the testatrix, the statute is inoperative. The answer is that the legislature fixed a safer and more certain criterion, and made birth, not knowledge of conception, the test by which we are to determine that a testator’s will shall stand unrevoked. The statutory rule, not the intention, governs.

The proponent’s claim that section 30 is not applicable, because the infant is “mentioned” in the will, is not borne out by the document. That he admits, but contends, that it may be spelled out of the circumstances that the testatrix at the time she executed the will was within two months of her accouchment, and knew. He cites Pearce v. Pearce, 134 S. W. Rep. 210. The language of the statute, "wherein [the will] any issue he might have is not provided for or mentioned,” confines the inquiry to an inspection of the will. The better view, as to whether an after-born child is “provided for or mentioned” in a will, is that the fact must be found in the instrument. Chicago, Burlington and Quincy Railroad Co. v. Wasserman, 22 Fed. Rep. 872; Bresee v. Stiles, 22 Wis. 120; Walker v. Hall, 34 Pa. 483; Hollingsworth’s Appeal, 51 Pa. 518; Carpenter v. Snow (1898), 117 Mich. 489; Smith v. Robertson, 24 Hun 210; 89 N. Y. 555.

The invalidity of the will may properly be considered on application for probate. The authorities are in conflict. See note to Conway v. Fulmer, 34 L. R. A. (N. S.) 964. The procedure was followed in In re Book, 90 N. J. Eq. 549; reversing 89 N. J. Eq. 509. See, also, Osgood v. Breed, 12 Mass. 525; Niemand v. Seemann, 136 Ia. 713.

Probate denied. ■


author: Griffin, Vice-Ordinary.

text:
    In the matter of the last will and testament of Mary O’Brien, deceased.
    [Decided October 13th, 1925.]
    1. Kind treatment, care and attention which an aged testatrix received from her grandniece, with whom she lived, do not show the exercise ol undue influence.
    2. Evidence examined, and held that the principal beneficiary under a will has met the burden of proof, if it existed, of undue influence.

      On. appeal.

      Messrs. CarricJc & Wortmdylce, for the proponents.

      Messrs. Feinberg & Feinberg (Mr. Brenner, of counsel), for the petitioners.
   Griffin, Vice-Ordinary.

The will in this case was admitted to probate on the 28th day of Eebruary, 1923. An application was then made to this court, on the 28th day of May, 1923, for an order compelling proof of said will in solemn form.

The testatrix died November 20th, 1922, leaving a last will and testament dated March 31st, 1920, in and by which she left all of her property, amounting to about $11,000, cash in bank, to the proponent, a grandniece. The next of kin consisted of nephews, nieces, grandnieces and grandnephews. The certificate of death shows that testatrix died at the age of one hundred and one years. That she was of this age is doubtful. In one place a witness swears that she thought she was about ninety-five; but, in any event, she had reached a great age. She spent a great many years in California, where she was employed as a cook, and, by thrift, had saved in the neighborhood of $15,000. She made one trip from California to New Jersey about thirty years before her death, and. returned. She then came to Bayonne, about twenty-four years before her death, and lived with relatives and friends, several in number, and then came to live with Mrs. Earley, a niece, where she lived for, I think, seven years. During her stay with Mrs. Earley she paid her $13 a month for her board and lodging, and made two gifts to her of $1,000 each, and a check for $2,000 upon which she has presented a claim against the estate. Some friction arose between the testatrix and Mrs. Earley. On October 22d, 1919, she came to live with Mrs. Somers under the following circumstances : Mrs. Earley spoke to Mrs. Somers about taking the testatrix. Mrs. Somers demurred because of her two children, and asked her sister to take her, and her sister was in no position to do so; and then Mrs. Somers said, “well, I will take the poor soul,” or words to that effect, and she went to live with her, paying her $13 a month until some time after the will in question was made. After she had been with Mrs. Somers for a month or more, then being possessed of about $11,000, she made a will, giving legacies to her nieces, nephews, grandnieces and grandnephews, giving to five of them $100 each; to Mrs. Sullivan, the mother of Mrs. Somers, $300, and to several, one dollar each. In this will she gave one dollar to her niece Mrs. Earley, because, she states, “for several years last past I have given her money from time to time, and paid her every month, money in payment for my board due to her, and I owe her no money at this time.” The residue of the estate she diueded into ten equal parts, giving one-tenth to each of various grandnephews and grandnieces, among which were included Mrs. Somers and Rita Somers, a daughter of Mrs. Somers, and to John Sullivan, Richard Sullivan and William Sullivan, children of Mrs. Sullivan above mentioned. Thus, within a month after coming to the proponent, she gave in the residue to Mrs. Somers and her child Rita and Mrs. Sullivan’s children five-tenths or one-half thereof.

The present will was drawn some five months after the testatrix came to live with proponent.

It is properly conceded that testatrix, at the time of making the will, was of sound and disposing mind. The only point made is that the burden of proof is cast upon the proponent to negative the presumption of undue influence, and that she has failed. I cannot subscribe to this.

The evidence shows that this lady, the testatrix, despite her years, possessed considerable will-power much greater than that of Mrs. Somers. In December, 1921, about twenty months after the will was made, she said to Mrs. Somers that she was afraid her will might be contested, and she insisted on turning over all her moneys to Mrs. Somers. To this Mrs. Somers demurred, but she replied that “she knew more about the world than Mrs. Somers, and that they might contest her will,” and insisted upon giving it to her. Mr. Roberson testifies that the testatrix had told him that some of her relatives intended to contest her will, and she wanted to give this money to the proponent; and Mrs. Somers says that Mrs. Jones had remarked to the testatrix that there would be a contest. This, Mrs. Jones denies. Accordingly, on December 8th, 1921, testatrix drew two drafts from the bank, one for $450 for her own use, and the other for $11,406.41 in favor of the proponent, which closed the account.

She continued to live with Mrs. Somers after making the will and after the giving of the money, until her death, receiving services from Mrs. Somers and her mother, Mrs. Sullivan. Prior to, and after the making of this will, some of these relatives visited the testatrix, and she was in a position, if she was dissatisfied, to change her domicile in the same manner that she had changed from Mrs. Farley. It is testified by some of the relatives that they called and were denied admittance. Mrs. Somers denies that she ever refused admittance to any of the relatives, and if anyone says they called and were not admitted, she must have been out. One witness I think, Mrs. Jones, testified that when she called, Mrs. Somers was continually around her so that she could not talk privately to the testatrix except when Mrs. Somers went into another room to attend to her babies. This is the only thing which contained a suggestion that Mrs. Somers did not desire the relatives to talk with the testatrix privately. Mrs. SomeTS did not deny this testimony of Mrs. Jones. But, taking it all in all, Mrs. Jones and Mrs. Somers were friendly, and nothing much can be urged against the fact that she remained in the room with her. Ho other relative who visited her gave like testimony.

While Mrs. Somers believed that the testatrix intended to make her will leaving all of her property to her, she, apparently, did not see the will until after the testatrix’s death. Mr. Roberson says that after the will was executed he took it and put it in his safe.

The testimony is quite clear that Mrs. Somers had nothing to do with securing a lawyer to draw the will. The testimony of Miss Fannie Morris, secretary of Mr. VanBuskirk (who drew former wills), is that she was requested, in March, 1920, to go up to Miss O’Brien’s house to draw another will, but she was busy and said she would call later, and the next day she was informed that her services were not required. This indicates that, in the first instance, testatrix sent word to Mr. YanBuskirk’s office that she desired to draw a will, and, in the meantime, Monsignor Egan called to see her and discussed with her the matter of the drawing of a will with her, and called in Judge Roberson.

I can see nothing in the case that indicates the exercise of undue influence, and I think Mrs. Somers has met the burden of proof, even if east upon her, both from the fact that 1 think that the will-power of the testatrix was stronger, and that Mrs. Somers could not induce her to make a will against her wish: and second, that'the will was probably due to love and affection which the old lady acquired for Mrs. Somers by reason of the kind treatment, care and attention which she received from her, which is not evidence of undue influence. Fritz v. Turner, 46 N. J. Eq. 515, and cases cited; In re Brengel’s Will, 85 N. J. Eq. 487; affirmed, Id. 599, and cases cited on p. 495; In re Cooper’s Will, 75 N. J. Eq. 179; affirmed, 76 N. J. Eq. 614; Schuchhardt v. Schuchhardt, 62 N. J. Eq. 710; In re Mannion’s Estate, 86 N. J. Eq. 232.

It is unnecessary to -comment on the conduct of the testatrix as to the reasons for making a gift of practically all of her estate some twenty months after the making of the will. Her act then had no relation to her situation when she made the will, beyond showing that her affection for the proponent continued.

I will advise a decree sustaining the will.


author: Buchanan, Vice-Oeoinaby.

text:
    In re estate of William E. Honeyman, deceased.
    [Decided June 3d, 1925.]
    1. Where decedent, five years before his death and not in contemplation of death, made an absolute and immediate transfer of a sum of money to a charity in exchange for the unconditional promise of the transferee to pay him an annual sum for life, the transfer is not taxable under the Transfer Inheritance Tax act, although the annual sum to be paid to the transferee equals six per centum on the sum transferred, the annuity not 'being payable as interest on the sum transferred, nor out of the income from the fund transferred, and not being dependent in amount on such income.
    2. In such case, if the transaction provide that the property or money transferred shall he devoted to the uses and purposes, inter alia, of the payment of such annuity, the transfer is taxable as one intended to take effect in enjoyment at or after the death of the transferor.
    On appeal from transfer tax assessment.

      Messrs. Whiting & Moore, for the appellants.

      Mr. Edward L. Kaizeribach, attorney-general, for the respondent.
   Buchanan, Vice-Oeoinaby.

Will E. Honeyman, a resident of this state, died April 1st, 1918. From the assessment of transfer tax in respect of his estate, made by the comptroller, separate appeals have been taken by the board of home missions of the Presbyterian church, and the board of foreign missions of the Presbyterian church. A single issue is involved, identical in both appeals, which have therefore been heard together.

About five years before his death decedent gave or transferred to each appellant the aggregate sum of $6,000, each in three separate amounts and transactions, and on separate dates, covering a period of some two months. In each transaction the donee, as and in consideration for the transfer, agreed to pay a specified annual sum to the donor during his life and to his wife for her life, if she survived him. This specified annual payment in each case amounted to six per cent, of the donor's gift. Each transaction was evidenced by a written agreement reciting that the board received the sum “as an absolute gift, subject only to the agreement'' by the board to pay the annual sum mentioned.

The comptroller has held these several gifts taxable under ' section 1, subsection 3 of the Transfer Inheritance Tax act (Oomp. Stat. of N. J. p. 6301, and amendments), as a transfer intended to take effect in possession or enjoyment at or after the death of the transferor. The sole' issue on these appeals is as to whether or not such ruling was erroneous. Conceded^, the tax is not sustainable on any other ground. Concededly, also, if the transfers are taxable, the computations and assessments have been correctly made.

A transfer by a deed of trust under which the trustee is to pay the income from the corpus to the donor during his life, and to pay the corpus to certain persons at the death of the donor, is a transfer “intended to take effect in possession or enjoyment at or after the death” of the transferor, and, therefore, taxable. Carter v. Bugbee, 91 N. J. Law 438; affirmed, 92 N. J. Law 390.

So, also, where the transfer is for the benefit of the transferee, but with the provision that the transferee shall pay to the transferor for life the income (or a portion thereof) from the property transferred. American Board, &c., v. Bugbee, 98 N. J. Law 84; affirmed in Congregational, &c., Society v. Bugbee, 3 N. J. Adv. R. 335.

And this is so whether the provision whereby the beneficial enjoyment is reserved to the donor, or rather is withheld from the donee until the death of the donor, is contained in the instrument of transfer, or is evidenced in some other way. The question is not of the form but of the substance of the transaction. So, the transfer was held taxable in Reish, Admr., v. Commonwealth, 106 Pa. St. 521, where it was evident, from the condition of a bond given by the donee to the donor, that the transaction, in fact, consisted of a gift or transfer with an agreement that the donee should pay to the donor during his life a portion of the income from the property transferred. So, also, In re Estate of Harvey, 2 N. J. Mis. R. 247, where the donor transferred a residence which the donee contemporaneously agreed to let the donor occupy rent free during his life, and where the donor gave $25,000 in cash, on which sum the donee contemporaneously agreed to pay the donee five per cent, interest during his life (obviously a loan at interest for the donor’s life and a gift at his death).

Based upon these cases (and similar adjudications in other jurisdictions) an argument by analogy is readily erected, that any transfer in a transaction whereof the net substance and result is that the transferor is provided with an income for life equal to, or greater than, the income which he could have derived by way of annual income from the property transferred by him (if he had kept it instead of transferring it) is a transfer coming under the terms of the statute and taxable. But is such an argument sound?

It must be conceded, of course, that an absolute outright gift (not made in contemplation of death) is not made taxable by the statute. It must equally be conceded that a transfer, for which consideration is received by the transferor, is not per se taxable under the statute, whether such consideration be equal to, greater or less than, the value of the thing transferred. Uor does it matter that it be the intent and expectation of the transferor in such a case, that he will be as well off, or better off, for the rest of his life, as the result of such transaction. Uo one will contend that the ordinary sale and conveyance of a house would be taxable because the grantor intends and believes that the consideration received by him will be equally or more advantageous for him for the rest of his life than a retention of the house, nor because the result of the transaction leaves the grantee worse off, or no better off, during the grantor’s life, than if the transaction had not been made.

It must necessarily be true that since a transfer (absolute, outright and immediate) is not per se taxable whether by way of gift or for adequate or excessive consideration, then such a transfer for consideration less in value than the thing transferred, is not par se taxable, as, for instance, if a father should convey to his son a large residence worth $50,000 in exchange for a small residence worth only $10,000. This would be true whether the transaction was intended and regarded by the parties as a sale for adequate consideration (where, for instance, contemplated public improvements rendered it probalde that the $.10,000 house would in the course of a few years increase enormously in value, and the father desired to have the possibility of such larger profit while the son preferred to have the smaller but certain profit), or whether the transaction was in substance a gift of $40,000 by the father to the son. If an actual gift of a $40,000 property by the father to the son would not be taxable, it would not become taxable merely because it took the form of a transfer of a $50,000 property in exchange for a $10,000 property.

In such a case can it make any difference what the form or nature of the property transferred, or the consideration received, may be? Tf the exchange of the two residences lie not taxable, why should a payment of $50,000 in money in exchange for $10,000 in money be taxable? Or a payment of $50,000 in money in exchange for anything, whatever it might be, worth $10,000? Would the transfer be taxable if-the son, in exchange for the $50,000 house (or in exchange for $50,000 in cash), purchased from a life insurance company for $10,000 its policy or contract whereby it promised the father to pay to the father for the rest of his life an annual sum which was, in fact, equal in amount to the annual interest (at legal or usual rate) on $50,000? And if the transfer would be taxable under those circumstances, would it become taxalde if, instead of purchasing such annuity from a life insurance company, the son gave to. the father his own promise to pay him such annuity?

The answers to all these questions must be in the negative, unless by the terms of the statute such transfers are made taxable.

Tlie criterion set up by the statute is this: Is the transfer one which is intended not to take effect in possession or in enjoyment until the transferor’s death. IE so, it is taxable— otherwise not. The statute does not say that the transaction is taxable if it is such that the result thereof is to leave the transferor with an annual income for life equal to or greater than the annual income which he would or could have derived from the property transferred had he retained it, nor if it be such that the result thereof is to impose upon the transferee an annual expense for the life of the transferor equal to or greater than the annual income derivable by the transferee from the property transferred. Hence, it must needs be immaterial whether or not either or both these results are accomplished by the transaction provided the transaction be not one comprising a transfer intended not to take effect in possession or enjoyment until after the transferor’s death.

In the present case if the decedent having $12,000 which he desired to give to these two donees provided he could in some way assure himself of an annual income for life equal to that which he could get from the $12,000 if he did not give it away, had therefore himself purchased from a life insurance company an annuity payable to himself of $720 per year (equal to six per cent, on the $12,000), at a cost of, say, $4,000, and had then given the $8,000 balance to the two appellants, no one, I think, will contend that the gift would have been taxable. Precisely the same result, both as affecting the donor and the donees, would be obtained if the donees had bought the annuity for the donor and exchanged it for the $12,000; and, as I have already indicated, it seems clear that the transaction in that form would still not be taxable. By two other forms or methods the same net financial results ensue to both parties — (1) where the donees give their own promise to pay the annuity to the donor, in exchange for the $12,000, and (2) where the donees agree to pay to the donor for his life the income derived from the $12,000. In the latter case (2) it is settled that the transfer is taxable. Wliat is the dividing line? and on which side does case (1) fall?

The distinction, I think, rests on whether or not the donor retains, or, rather, whether the donee is deprived of an interest of some kind, whether as to principal or income or both, in the very property transferred, until the donor’s death. Even though immediate possession pass to the donee, if the donor (or some third party) is to receive interest on the sum transferred, or the income, or part of the income, arising from the property transferred or from other property which the donee might substitute in place thereof (the same corpus though changed in form), or a sum equal to the whole or a part of income arising from such corpus (the same income though in another form), in any such case the intent is clear that the enjoyment (in whole or in part) of the thing transferred is intended not to take effect until the donor’s death. But where the enjoyment of the thing transferred is in nowise delayed until the donor’s death, notwithstanding that the donee’s entire net income may be in nowise increased, or may be even diminished, until the donor’s death, the transfer is not taxable.

Judged by this standard, then, where a transfer is made, immediate as to title and possession, it is not taxable unless there is some condition, reservation or provision by which some interest in, or identifiably tied up with, the very thing transferred, is reserved from the donee until the donor’s death.

In the case at bar the transfer to the donee is immediate and absolute. There is no restriction or encumbrance on what the done.e may do with the thing transferred, from the very moment of the transfer. The promise of the donee to pay to the donor for life an annual sum which is, in fact, equal to six per cent, of the value of the thing transferred, is entirely separate from and independent of the thing actually transferred. Whatever may hereafter happen to the thing transferred, whether it be by investment and reinvestment increased or diminished, or entirely lost, whether the income received therefrom by the donee increases or decreases or vanishes, in nowise varies or affects the obligation of the donee under its promise or contract.

The agreements evidencing the several transactions each recite that the gift is paid and received “as an absolute gift (subject only to the agreement on the part of the said board hereinafter expressed),” to wit, the agreement to pay the annuity. Respondent contends that this language indicates or affects a condition or reservation of interest in the subject-matter of the gift. I do not so construe it. The natural meaning, and, hence, the intent of the parties thereby!, seems to me to be that the parenthetical clause qualifies the word “gift”; it is intended to explain that a gift was intended as to the value of the thing transferred in excess of the value of the annuity! promised in consideration.

I conclude, therefore, that the gifts under review, with the exception of one thereof, hereinafter noted, are not taxable under our statute. A similar result was reached In re Edgerton's Estate, 54 N. Y. Supp. 700.

One of the gifts, that of $2,000, made November 19th, 1912, to the board of home missions, differs from the others in this respect: the agreement as to this gift is that it is' “to be devoted to such uses and purposes as are hereinafter provided,” and among the specified purposes is the payment of the annual sum of $120 to the donor for life. This gift,

T think, clearly comes 'within the statute and is taxable, and appellants, indeed, do not strongly argue otherwise.

In the appeal of the board of foreign mission the assessments must be set aside absolutely.

Tn the appeal of the board of home missions the assessment must be sustained as to the gift of $2,000 of November 19th,, 1912, but set aside absolutely as to the remainder.


author: Fielder, Vice-Ordinary.

text:
    In the matter of the estate of Samuel Haness.
    [Decided October 24th, 1925.]
    1. Where a duly executed will is offered for probate, testimony of declarations made by a testator that he had revoked such will or had made, or intended to make, a new will, is hearsay and is not admissible to establish a new will.
    2. If a testator is capable of recollecting of what his property consists and who, either by ties of blood or friendship, should! be the objects of his bounty, and has a mind sufficiently sound to enable him to know and to understand what disposition he wants made of his property after his death, he is competent to make a valid will.
    3. A delusion, in order to invalidate a will, must spring spontaneously in the mind of a testator and not be the result of extrinsic evidence. He may act upon false or insufficient evidence, or from mistake, but if he exercises reason and reaches a conclusion on the facts as lie understands them, he is not suffering from an insane delusion. The burden of proving that the testator suffered from an insane delusion, is on the one who attacks the will.
    4. Evidence examined, and held that the testator was of sufficiently sound and disposing mind to make his will; that he was not unduly influenced, and that there is no legal proof that the will offered for probate is not the last will of the testator.
    On appeal, &e.

      Messrs. King & Yogi, for the appellants.

      Mr. Samuel G. Meyerson, for the respondent.
   Fielder, Vice-Ordinary.

Samuel Haness was killed in an accident January 9th, 1924. His mil, dated February 16th, 1922, was admitted to probate by the surrogate of Morris county', January 28th, 1924. He left him surviving seven children, all of full age except the youngest, a son aged nineteen years, and a wife. He was married in 1891 and had lived with his wife and children in Brooklyn up to September, 1916, when, because of serious family quarrels, dating back at least a year, he left them and lived separate from them to the time of his death. By his will he provided for the payment of his debts and the erection of a monument over his grave, and he left his entire residuary estate, in equal parts, to his two brothers and Mount Sinai Hospital, in Hew York City. His widow filed a petition of appeal from the probate of the will, alleging as her grounds of appeal (a) that the testator was of unsound mind and incapable of disposing of his estate by will; (b) that his brothers unduty, illegally and fraudulently influenced him to execute the will; (c) that the will is not the testator’s last will, but that he made a subsequent will which was stolen and concealed by his brothers. The appeal coming on for hearing before the Morris county orphans court, the learned judge of that court found that the testator was suffering from a delusion, and was therefore incapable of making a valid will, and by his order set aside the decree admitting the will to probate. He made no finding on grounds (b) and (c) set out in the petition of appeal. The case before me is on an appeal taken from the said order of the Morris county orphans court.

The only evidence as to undue influence comes from two witnesses for the appellant below. One, Barney Draehlis, testifies that the testator told him that his brothers made him make a new will, and the other, Michael E. Haness, testator’s son, testified that the testator told him that at the time he made his will the testator’s brothers told the testator that testator’s wife and children were eraz3T, and asked testator why he should leave his property to his wife and children. Both brothers denied influencing the testator to make the will, and further, that they were not aware that the testator had made a will in their favor. One brother testified that the testator once told him that the two brothers were the only persons he had who would take care of his business after he was gone. If testimony of declarations made by a testator at least a year after he had executed his will is admissible as tending to show undue influence, it should be noted that the testator always had control of his will, and if, at the time he is alleged to have made the declarations, he believed his brothers had improperly influenced him to execute the will, he could have destroyed it and executed another. The controlling testimony, however, came from the New York attorney who drew the will and attended to its execution. It is sufficient to say here that this attorney had had charge of the testator’s legal business affairs for a period covering four years prior to the execution of the will. The testator came to his office alone, asked him to draw his will, and stated he wished to dispose of his property to his brothers and the hospital. The attorney then questioned him, and was told of the testator’s family troubles, and that the testator did not wish his wife or children to have any part of his estate. The attorney then dictated the will in the testator’s presence, and when it had been typed in duplicate, handed the copy to the testator while the attorney read the original to him, the testator following the reading from the copy, after which the testator said the will was as he wanted it, and the will was thereupon duly executed in the presence of the attorney and his stenographer. The testimony is not clear as to what disposition was made of the will after it was executed, nor does it show where the will was found after the testator’s death, but I gather from the attorney’s testimony that he gave the original to the testator and kept the copy in his safe. If, however, this is not the correct inference to be drawn from the testimony, then the attorney kept the original in his safe and gave the copy to the testator. The circumstances under which the will was prepared and executed completely negative any thought that the testator was improperly influenced to execute a will in favor of his brothers and the hospital.

An attempt was made to prove that the testator had executed a subsequent will which was found and concealed by the testator’s brothers. The day after the testator was killed the two brothers came to Dover, and, after viewing the body, visited the rooms occupied by the testator at Dover. A son of the testator testified that immediately after that visit he saw one of the brothers take a large envelope with a red seal on its back from a handbag owned by the testator, but the witness did not know what the envelope contained. The further testimony to establish another will came from witnesses for the appellant below as to various declarations made by the testator covering a period from April, 1923, to a few days before he was killed. To some of the witnesses he is alleged to have said that he intended to make a will in favor of a son and daughter; to some he is alleged to have said that he had made a will in favor of all his children; -to some he is alleged to have said that he had given his house in Dover to his daughter; to some he is alleged to have shown a large envelope with a red seal on its back, at the same time stating that the contents of the envelope provided for the same daughter after his death. The testimony for the proponents shows the following facts conclusively: That on the occasion of the visit of the 'brothers to the rooms occupied by the testator the day after he was killed, they were accompanied by three friends of the deceased, wholly disinterested in the disposition of his estate; that the contents of the testator’s desk were then examined in the presence of all five persons, and nothing of importance was found therein other than a list o£ names of persons who the testator desired should be notified in the event of his death, which list was the only paper, envelope or property removed from the rooms; that all live persons left the rooms together, and when they left the tenant who occupied the rooms below those occupied by the testator fastened a padlock on the door of the testator’s rooms and kept the key; that neither of the two brothers entered the testator’s rooms again until after the will here in question had been probated, when they came with an attorney and two appraisers and made an inventory of the testator’s personal property; that on this occasion no subsequent will was found. The attorney who offered the will for probate continued, after the execution of the will, to transact legal business for the testator to the time of his death, and he drew no other will for the testator. There is no testimony that any other person drew a will for or witnessed a will executed by the testator or saw a will which had been executed by the testator. It is admitted that the will here attacked was executed with all legal formalities. It could be revoked only in the maimer provided by statute, that is, by burning., canceling, tearing or obliterating it by the testator, or by his direction, or by a writing executed with the same formalities as the will itself. Ho proof of declaration of revocation made by the testator will avail the appellant below and the evidence • as to the declarations of the testator that he had made or intended to make another will was hearsay and should not have been admitted. Boylan v. Meeker, 28 N. J. Law 274; Randall v. Beatty, 31 N. J. Eq. 643; Pemberton’s Case, 40 N. N. Eq. 520; Gordon's Case, 50 N. J. Eq. 397; State v. Ready, 78 N. J. Law 599. The appellants below have failed utterly to show that there was another will subsequent to the will offered for probate.

The remaining ground for appeal from the probate of the will was that the testator was of unsound mind and incapable of disposing of his estate by will. The testator was a dry-goods salesman for many years — I gather that he was a drummer — and he continued to attend to his business up to the time' he was killed. His sample case was found with his body. Besides this business, he speculated in real estate and had bought four pieces of real estate after he separated from his wife and prior to the execution of his will, and he bought three other parcels of real estate after the execution of his will. He was shrewd enough to have a corporation formed to hold title to his real estate, undoubtedly to avoid trouble over his wife’s dower. Eleven disinterested witnesses, in addition to his two brothers, testified for the proponents. They had known the testator prior to and after the execution of his will, and had talked with him on general business conditions, of the topics of the day and of his family, and all describe him as a normal man, showing no evidence of any mental disturbance, or even bad temper. Witnesses for the appellant below described him as an excitable man, of quick and violent temper, easily enraged without cause, but the only concrete evidence of any mental trouble outside of bad temper and epithets applied to his wife and family comes from three witnesses. Eva Leopold, who had known him nine years and had kept house for him several years up- to- October, 1933, testided that in or about September, 1922, he got out of bed about nine or ten o’clock at night and said: “Let me get out of the window, my other brother is praying, let me go help him. I hear by father is calling me; hear, my mother is calling me,” and he started to Walk through the window. She left his house the next day because she was afraid of him. She further testified that about May, 1922, he struck her young son because the boy threw a crumb on the floor. Barney Braehlis, who lived in the same house with the testator from 1906 to 1913, and who, during the three years prior to the testator’s death, saw him about once a month, testified that in 1909 or 1910, while the testator was living with his wife, he heard the testator quarrelling with his wife in the middle of the night and call out that she had poisoned him. Tobias Iianess, a son of the testator, testified that in 1913 his father took him to buy a graduation suit, and because he asked for a pair of long pants his father got mad and yelled at him on the street or in the store, and then bought him both long and short pants, and when later the same day he said something to his father which he thought funny his father slapped him across the face and said he would give the son $1,000 to change his name. It will be noted that these witnesses have been in close contact with the testator many years, and during the period of their respective acquaintance with them they point out but a few instances of peculiar conduct, only one of which (the striking of Mrs. Leopold’s boy) occurred near the date of the execution of the will, and all of which might occur with a man of sound mentality.

Our courts guard the right of testamentary disposition jealously. They hold that this right may be exercised by a person of very moderate capacity. He must have a sound and disposing mind and memory, but his memory may be very imperfect; he may not be able at all times to recollect names, the persons or the families of those with whom he has been intimately acquainted; he may at times ask idle questions and repeat those which have been asked and answered; he may not have sufficient strength of memory and vigor of intellect to digest all parts of a contract and yet be competent to make a will. If lie is capable of recollecting of what his property consists, and who, either in consequence of ties of blood or friendship, should be objects of his bounty and has a mind sufficiently sound to enable him to know and to understand what disposition he wants made of his property after his death, he is competent to make a valid will. Ward v. Harrison, 127 Atl. Rep. 691. A will may be contrary to the principles of justice and humanity; its provisions may be shockingly unnatural and extremely unjust, nevertheless, if it appears to have been made by a person of sufficient age to be competent to make a will, and also to be the free and unconstrained product of a sound mind, the courts are bound to uphold it. Middleditch v. Williams, 46 N. J. Eq. 726; In re Young, 90 N. J. Eq. 236.

Up to this point in the discussion of the case, the testimony clearly shows that the testator, at the time he executed his will, had ample testatmentary capacity, and that it was the free and unconstrained product of his mind. But the court below found that the testator was suffering from a delusion that his wife and children were crazy and were murderers, and, because of such delusion, he was incapable of making a valid will. I assume the court meant that, because of such delusion, the testator was unable to comprehend his wife and children as natural objects of his bounty, or to appreciate the duty which should have recommended them for his consideration. It is only a delusion or conception which springs up spontaneously in the mind of a testator, and is not the result of extrinsic evidence of any kind, that can be regarded as furnishing evidence that his mind is diseased or unsound. It is not required of a testator that he shall, in fact, correctly ascertain the legal status of each person who stands in natural relation to him. In the exercise of reason he may move on premises established by false or insufficient evidence, or bjr mistake, and thus determine to exclude from his bounty those whom, but for his error, he would have recognized. The test is his ability to exercise reason and reach a rational conclusion, however erroneous, with reference to them. Stupid error in either his reasoning or conclusion is not lack of testamentary capacity. Middleditch v. Williams, supra; Smith v. Smith, 48 N. J. Eq. 566; Davenport v. Davenport, 67 N. J. Eq. 320.

Back as far as January, 1916 (and probably further), there was trouble between the testator and his wife, and the children seem to have sided with their mother. Their then troubles resulted in the testator entering into a written agreement for the support of his wife and children. He left her in September, 1916, and about that time he commenced suit against his wife to compel her to convey to him certain property in Brooklyn, title to which was then in her name, but which he claimed was his. In August, 1917, the husband and wife entered into another written agreement by which they agreed to live separate for the remainder of their lives, and to convey the Brooklyn property to the wife and another person as trustees, to hold for the benefit of the wife and the children, and, after the death of the wife, to convey said property to the children. In addition to the income they were to receive from the property, the testator agreed to pay his wife a monthly sum for the support of herself and children. When speaking of his wife on sxxbsequent occasions, he maintained that the blame for his family troubles was wholly hers; that her conduct toward him and her treatment of him made it impossible for him to live with hex; that his children, or some of them, had ill-treated him, and that when he gave to them the Brooklyn property (which apparently was all the real estate he then owned) they had taken from him all he had, and it was because of the treatment that he felt he had received at their hands, he occasionally called them crazy and murderers, and said they had robbed him.

It is conceded that they were not crazy or murderers. In his marital troubles the testator evidently believed himself wholly blameless and his wife entirely wrong, and the treatment he received from her may, to his mind, have been so unjust and her part in their quarrels may, in his opinion, have been so violent and harrassing; that he could only account for her conduct upon the hypothesis that her mind was affected, and, reasoning from his relations and experiences with her and from his point of view, he said she was crazy. While they were living together, he charged her with having poisoned him, and a physician was sent for. He must have had some ground which, to my mind, justified the charge, and so in after years he occasionally spoke of her as a murderer. Assuming that, for the reasons I have ’ stated, he actually believed, as a fact, that she was crazy and a murderer; his belief was founded on what appealed to his reasoning powers as sufficient evidence, and while he may have shown want of discernment, or that he lacked power to analyze and weigh evidence, or to discriminate between what was true and what was false, it does not follow that he was suffering from an insane delusion. Middleditch v. Williams, supra; Smith v. Smith, supra; Davenport v. Davenport, supra.

He did not always speak of his wife and the children as crazy and murderers. Witnesses for the proponents say that he spoke of his wife and children, and of his trouble with them, without calling them names, and his ill-feeling toward his children seems to have abated somewhat, because he visited them and some of them visited him, but his feeling towards his wife never changed. I do not believe that the testator actually thought his wife and children were crazy or murderers, but that he used these word as epithets to indicate his dislike or hatred for them. The testimony for the appellant below describes him as an. excitable man, of hasty and violent temper, and it appears that he usually made use of these epithets when talk concerning his wife and children aroused him to anger. When he went to his attorney to have his will drawn, he told the attorney of his family troubles, arid said that he had not found it possible to live with his wife because of the trouble she created; that she had taken every dollar he had and that he had turned everything he had over to her and his family, and that he did not want his wife and children to have any part of his estate. He did not then give as his reason for cutting off his wife and children that they were crazy or murderers, and he had his attorney insert in his will, “I have made no provision for my wife and children for reasons well known to them.” He could not have believed that his wife was crazy in 1917 when he conveyed the Brooklyn property to her to hold as trustee and to collect and expend the income therefrom, nor could he have believed she was crazy when he continued ‘to make payments to her after 1917 under the agreement for the support of his wife and children; nor could he have believed that his wife and children were murderers, for they had not killed him; nor could he have believed that his childrn were crazy when he continued to see and converse with at least four of them down to the time of his death and (according to witnesses for the appellant below) intended to or had made a will in their favor, and had sent a daughter to the country and had given her money and had told her he would deed a house to her, and had sent a son to the country and had given the son’s wife money to pay the rent while her husband was away and knew that his sons were in business. We commence our consideration of this case with the presumption in law that the testator was sane and mentally capable of making testamentary disposition of his estate. Consideration of all the testimony leads me to believe that, except for the alleged delusion, he was mentally competent to make a will. The burden of proving that he suffered from an insane delusion, in consequence of which he was unable to comprehend his wife and children as natural objects of his bounty, is on the appellant below, and I conclude that she has not sustained that burden.

The decree of the Morris county orphans court will be reversed.


author: Berry, Vice-Ordinary.

text:
    In the matter of the appeal of Rose McKee Larrabee, Bruce Mackay Larrabee and Albert S. Larrabee, from orders of the Ocean county orphans court allowing certain commissions and counsel fees in connection with the account of Hanora Larrabee, executrix of the estate of Edward F. Larrabee, the deceased executor of estate of Albert S. Larrabee, deceased.
    [Heard June 24th, 1925.
    Decided July 28th, 1925.]
    1. Executors' commissions should be computed, not on the total cash or personalty passing through their hands, but only on the corpus of the personal estate augmented by the sum realized from the sale of land and profits, if any. from the business of the decedent.
    2. Notwithstanding the fact that the will directed the executors to continue the decedent’s business as trustee, which, he did for eight years until his death, he is not entitled to compensation therefor in addition to his statutory commission.
    3. Where the executor continued testator’s business, according to the direction of the will, maximum commissions should not be allowed to the executor as executor and also as trustee, but an allowance of two per cent, on $80,000 to him as executor is proper, and in addition to which he or his successor would be entitled to an additional allowance as trustee.
    4. An executor or trustee, when accepting a trust under a will, is presumed to do so with full understanding as to the amount of compensation the law allows.
    5. It is the duty of an executor to prepare his own account, and if he employs a lawyer to do it for him he should pay the lawyer’s fees for this service; such fees are not a proper charge against the estate.
    On appeal from orders of the Ocean county orphans court.

      Messrs. Wilson & Smock, proctors for the appellants.

      Mr. William I. Garrison, proctor for the respondents.
   Berry, Vice-Ordinary.

The petition of appeal filed herein brings up for review to the prerogative court two certain orders made by the Ocean' county orphans court on August 20th, 1924, one making an allowance of $8,000 to William I. Garrison, proctor for Ilanora Larrabee, executrix of the estate of Edward F. Larrabee, the deceased executor under the last will and testament of Albert S. Larrabee, deceased, and the other making an 'allowance of $12,000 to Ilanora Larrabee, executrix as aforesaid, for services performed by her deceased husband as executor of the estate of his brother, Albert S. Larrabee.

At the time of the death of Albert S. Larrabee, which was December 6th, 1932, he was engaged in a number of business enterprises in Lakewood, New Jersey, among which were a hotel, a farm and a general store, also a coal business conducted at the store. Under the terms of his will, his executor was directed to continue the hotel, farm and general store businesses “on such a scale, and for so long a time, during the minority of my two boys, as, in his discretion, would seem for the best interest of my estate.” The testator left surviving him his widow, Rose McKee Larrabee, and his two sons, Bruce M. Larrabee and Albert S. Larrabee, Jr. At the time of his death his sons were aged, respectively, fourteen and twelve years. The will contains provisions for the payment to the widow of a portion of the net income of the various businesses semi-annually. Pull power of sale of real and -personal property was given to the executor. The will further provides for the payment to each of testator’s two sons of $10,000 in cash as and when they each arrive at age twenty-one. Final distribution of the estate is deferred until the younger son attains age thirty, which will be in the year 1930. The inventory hied by the executor of Albert S. Larrabee showed personal assets of $78,249.78. ■ The real estate was appraised at $137,850, making a total of real and personal estate of $216,099.78. Edward F. Larrabee, the executor, continued the businesses of the testator, as directed by the will, until the executor’s death in July, 1920. From the testimony, which was taken, on this appeal, it appears, however, that the executor’s part in the conduct of the various business enterprises was merely supervisory; that the actual detail of all of the business was attended to by employes, most of whom were in the employ of the testator at the time of his death. The executor had a large business of his own at Lakehurst, New Jersey, which is ten miles from the site of the business enterprises of the testator, and the executor’s supervision of the estate’s business was accomplished through occasional visits to Lakewood, on which occasions he consulted with the employes and signed cheeks in blank in sufficient numbers to accommodate the needs of the business, so that the employes could make disbursements as required. These visits would usually occupy from one to two hours’ time, about half of which time, according to the testimony, was devoted to the coal business personally owned and operated by the executor. No intermediate account was ever made up by the executor, and, after his .death in 1920, a final account was made up by the executrix .of the executor and filed in the surrogate’s office. This account is sworn to under date of March 15th, 1923. It was finally allowed on August 20th, 1924. This account is quite voluminous and purports to show in detail all the receipts and disbursements of this executor during the period of his administration of the trust. Luring the course of his administration real estate of the testator was sold for approximately $5,000, and the money received from this sale is presumably included in the list of receipts exhibited in the account, although I have been unable to locate any specific item representing this sale. It appears, from the summary of the final account, that the total cash receipts of this estate during the administration of Edward E. Larrabee, the executor, amounted to $854,138.08. This represents the gross income of the hotel, store and farm and also the coal business which was continued by the executor for about nine, months after testator’s death, when he personally purchased that business from the estate. This amount, added to the inventory of $78,249.78, makes a total of personal property passing through the hands of the executor of $932,387.86. The summary of this account also shows disbursements in the same amount as the receipts. Counsel for the respondents claims in his brief that compensation should be allowed the executor for the handling of $1,867,- 775.72, and he arrives at this amount by adding together the total amount of receipts and the total amount of disbursements, as shown by said summary, in both of which is included the item of inventory above mentioned. Obviously, this is a doubling up of the amount of money and personal assets coming into the hands of the executor, and if this amount were adopted by the court it is apparent that the estate would be considered upon a false basis. In this amount Credit is taken for both the receipt and disbursement of the same amount; and, clearly, if I receive money in one hand and pay it out with the other, it does not' thereby multiply twofold. However, in considering the amount of commissions to which the executor was entitled, the computation is to be made, not upon the total cash or personalty passing through the hands of the executor, but only upon the amount of the corpus of the personal estate, augmented by the amount realized from the sale of real estate and the profits, if any, from the business. Weeks v. Selby, 61 N. J. Eq. 668; Gilligan v. Daly, 79 N. J. Eq. 36.

While it is true that the will directs the executor to continue the testator’s businesses, and this direction was carried out by the executor for a period of some years, and until his death, this does not entitle him to compensation in addition to the statutory commissions (Gilligan v. Daly, supra), although, if there had been no such direction in the will and the business had been conducted by the executor, additional compensation might have been allowed. This apparent anomaly in the law is explained by Vice-Chancellor Emery in Gilligan v. Daly (at pp. 41, 42).

An examination of the summary of receipts and disbursements of this estate, however, indicates that there was practically no increase in the inventory, as stated in the beginning of this trust, and at the death of the executor. The receipts from the general store and the disbursements are exactly the same. The hotel disbursements are $2,267.62 more than the receipts. The hotel bar receipts are $1,387.69 more than the disbursements. The farm receipts are $2,-109.10 more than the disbursements. The coal'business receipts and disbursements are the same. The cash for miscellaneous receipts practically corresponds to the amount turned over to the successor of the executor. It would appear, therefore, that the net profit, if any, arising from the conduct of the testator’s business during the seven and one-half years of the executor’s administration, was very slight; at most, it could not have exceeded the sum of the three items above mentioned, which is $5,764.41.

In addition to the allowances made to counsel and to the executrix of the executor, and which are here under review, an allowance of $1,000 was made to H. H. Wainwright, Esq., as proctor for Joseph H. Johnson, who succeeded Edward E. Larrabee, as executor of this estate; $1,500 to W. H. Jayne, Jr., Esq., as proctor for Mr. Johnson, and $500 to Mr. Jayne for services rendered Edward P. Larrabee, as executor. Joseph H. Johnson was also allowed commissions amounting to $1,668, for the administration of the estate from July 1st, 1920, to December 27th, 1922. These allowances, however, are not here under review, but are mentioned merely for the purpose of indicating in this record to what extent this estate has been mulcted in fees and commissions.

It is not possible to accurately determine, from the final account, the actual amount of personal property, including the cash received from the sale of real estate, which came into the hands of this executor, and which represented the corpus of the estate. Proctor for appellants in his brief suggested that the maximum amount which could be considered is approximately $85,000, and with this estimate I am inclined to agree, and, for the purpose of this decision, the personal estate coming into the hands of this executor will be considered as amounting to that sum. • This determination of the total amount of personal assets, upon which commissions are to be computed, is important, because, under the terms of the will, the trusts therein created were to continue for a period of approximately seventeen years, or until the youngest son should arrive at age thirty. Of this period Edward E. Larrabee’s administration, as executor and trustee, covered between seven and eight years. Joseph H. Johnson’s administration covered a period of a year and a half, and Bruce M. Larrabec’s administration will continue until 1930, thus covering a period of between seven and eight years from the date of his appointment.

During the administration of Joseph H. Johnson, as executor and trustee under this will, the business enterprises of the estate were carried on as they had been theretofore, and these enterprises are now being conducted by the present trustee. The amount of commissions allowable to executors and trustees upon the settlement of decedent’s estate is fixed by statute. 8 Comp. Stat. p. 8860 §§ 128, 129. The maximum amount of commissions allowable to an executor on estates of over $50,000 is limited to five per cent, of the amount of such estate. The maximum amount of executor’s commissions which could therefore be allowed on this estate would be $4,050, but the will also refers to the executor as a trustee, and no doubt he was such, as he was to hold the estate in trust for a period of seventeen or eighteen years befpre final distribution, and under such circumstances, he would be entitled to a commission both as executor and trustee; and, under appropriate circumstances, this compensation, in each capacity, might extend to five per cent, of the total value of the personal estate. Koch. N. J. Prob. L. 685; Baker v. Johnston, 39 N. J. Eq. 493; Pitney v. Everson, 42 N. J. Eq. 361; In re Hibbler's Estate, 78 N. J. Eq. 217; Lyon v. Bird, 79 N. J. Eq. 157.

In the instant case, however, it is quite apparent that the maximum amorint of commissions ought not to be allowed to the executor in both of his capacities under the will. While no intermediate accounting has been had in this estate, and the executor, as such, did not turn over to himself, as trustee, the assets of the estate, it may be assumed, for the purposes of this decision, that the executor’s duties as executor ceased at the end of the first year after the decedent’s death, and that thereafter he continued his duties as trustee. In re Hibbler’s Estate, supra. Considering this matter in the light most favorable to the executor, therefore, the maximum amount of commissions which could, under any circumstances, lie allowed to the original executor and his successors, during the continuance of the trust, would be ten per cent, of the total estate; but as the duties of Edward E. Larrabee, as executor, were inconsiderable as compared with the duties of the trustee under the will, the same allowances should not be made to the executor as is made to the trustee and his successors. While “each case must depend upon its own circumstances and be tested and controlled by the criterion intended by the statute — compensation” (Metcalf v. Colles, 43 N. J. Eq. 148, 153). yet the rule of law respecting allowance of-compensation, as applied in similar cases, is helpful. The instant estate is similar, except for the fact of continuance of business (which is here immaterial) to that involved in Lyon v. Bird, supra. In that case the corpus of the estate amounted to slightly over $80,000, and the executors’ account was settled within one year and the estate then transferred to themselves as trustees. There Vice Ordinary Walker (now chancellor) allowed the executors one per cent, on the amount of the inventory and two and one-half per cent, “on the principal which augmented the amount of the inventory,” by which language he evidently referred to income. It is not possible here, however, to separate principal from income, so that a compromise between the two rates of commission allowed in that case would, perhaps, be appropriate in this; and I feel that, under the circumstances of this case, I am justified in allowing to Edward E. Larrabee, as executor, commissions at the rate of two per cent, on the corpus of the personal estate, which commission would amount to approximately $l,7.p0. In addition to this he is, of course, entitled to an allowance for his services as trustee, but “no more than five per cent, in all may be allowed to a trustee or trustees, either one or several in succession, for the care nud management of the corpus of an estate.” In re Hibbler’s Estate, supra. Under the rule of the Hibbler Case, Edward E. Larrabee and his successors in the trust would be entitled to commissions to the maximum amount of five per cent, of $85,000, or $4,050, for their services during their term of the trust, which, under the terms of the will, would continue for approximately sixteen years after the termination of the executor’s administration. Edward E. Larrabee, having administered the trust for but approximately seven years after the termination of his dirties as executor, would be entitled to approximately $1,700 or $1,800 of this amount. That Mr. Johnson has already received $1,668 as commissions for one and one-half years’ service as trustee does not alter the fact that Edward P. Larrabee’s commission should be limited as above indicated. The allowance to Johnson is not here under review. The trust estate must be left in such shape that the court will hereafter, upon the-termination of the trust, be in a position to allow commissions to the trustee who is now administering that trust (In re Hibbler’s Estate) and thus permit a proportionate division of the lawful commissions amongst the several trustees, according to the period of time covered by their respective incumbencies.

I feel that I am obliged under the circumstances to reduce the allowance of the executor from $12,000, as fixed by the Ocean county orphans court, to $3,500. If it be said that such a reduction results in a meagre allowance to the trustee for his services, the answer is that the legislature and not this court has so limited it. It will be presumed that an executor or trustee, when accepting a trust under a will, does so with a full understanding of the statutory limitations upon his compensation. If he is not satisfied to accept the trust under the statutory limitations as to condensation, he may renounce.

As to the allowance to Mr. Garrison, proctor for Hanora Larrabee, executrix of the executor, this is clearly excessive. By his own testimony it appears that he never represented the executor in his lifetime, except for the giving of casual advice at times when the executor was represented by other counsel who has already been paid for his services, and that practically his whole service was to the executrix of the executor and that it very largety consisted in helping make up the executrix’s account. It appears quite conclusively that the executor’s accounts, at the time of his death, were in absolute confusion. Eo intelligible records of the various business enterprises were kept, except possibly records of receipts and disbursements, and these were plainly incomplete. If such records had existed, the executor’s account could have been made up within a few weeks, at the most; whereas, it was almost three years after the executor’s death that his account was finally stated. In order to state that account it was necessary to employ two separate accountants, one stenographer for a number of weeks, and the attorney respondent devoted a very considerable amount of time to examining the papers of the deceased executor in an effort to find out just what was the exact status between the executor and the estate which he was administering. This work on the part of the accountants, the attorney and the stenographer, was supplemented by the services of the executrix of the executor and the members of her family and covered a period of many months, the greater part of the work being made necessary, in my judgment, by the chaotic condition of the executor’s records and accounts. It was a practical impossibility for anyone to determine, after the executor’s death, whether the business enterprises of the testator had been conducted at a profit or at a loss. This is shown upon the face of the account itself. I am convinced that the account, although finally admitted to be correct by the appellants here, was at best a mere guess, and that such admission was made only because of the impossibility of anyone being able to determine the exact status of the estate’s affairs, and, consequently, being unable to show the correctness or incorrectness of the account. It is the business of the executor, and in this case the executrix of the executor, to make up his own account, and if through neglect the executor fails to keep accurate records' of his transactions and is obliged to employ a lawyer to extract him from his difficulties, the lawyer should be paid by the executor and not by the estate. ' The executor in such, case has no cause for complaint if he is obliged to pay out a considerable portion of his commissions, or all of them, in. lawyers’ fees. Kingsland v. Scudder, 36 N. J. Eq. 284, 286; Fluck v. Lake, 54 N. J. Eq. 638; In re Wiley’s Estate, 65 Atl. Rep. 212; In re Drier’s Estate, 92 Atl. Rep. 51.

In Fluck v. Lane, supra, the court said (at p. 644) :

“The services of the administrator’s counsel at the accounting were made necessary by the same shortcomings and misconduct which deprive the administrator of commissions, and I do not think the estate should be mulcted to pay counsel fees. The allowance of them should have been denied."

In Kingsland v. Scudder, supra, the court said (at p. 286) :

“A fiduciary charged with the management of property, whether as executor or otherwise, has a right to employ counsel when necessary or proper to protect the estate, or to enable him properly to manage it, and the reasonable charges for such service will bp paid out of the estate. Wolfe’s Case, 7 Stew. Eq. 223. But he will not be allowed for such work, though done by counsel, as he, in contemplation of law, is bound to do himself. In other words, if he chooses to employ others to do his work he must pay them himself."

I am unable to determine, from Mr. Garrison’s own testimony, that any extended services were rendered by him to the estate, practically all of his time devoted to this matter being given to assisting in the making up of the account and in the examination of papers of the deceased executor in an effort to find some basis for an account. However, he is entitled to some compensation for services to the estate, but I am firmly convinced that the allowance to him by the orphans court was exorbitant, in view of the fact that the bulk of his services was for the benefit of the executrix and not of the estate. The effect of the allowances -which are here under review is to make legatees of the proctor and the executrix of the executor; in other words, they become distributees of the estate, and this has been frowned upon by our courts in a long line of decisions. They are entitled to reasonable compensation for their services, and no more. In my judgment, a liberal allowance to counsel for his services in this estate is $2,000, and I will advise a reduction of the allowance made by the Ocean county orphans court to him to that amount. I do not by this mean to intimate that the -whole services performed by Mr; Garrison are of no greater value than this reduced allo"wance; in fact, I believe that he is entitled to additional compensation, but this he should collect from the executrix and not from the estate. I will advise a decree in accordance with the foregoing conclusions.


author: Gummeke, Chief-Justice.

text:
    Adolph Pilger, complainant-respondent, v. United States Steel Corporation and Public Trustee, defendants-appellants.
    [Argued May term. 1925.
    Decided October 19th, 1925.]
    1. An instrumentality of government, whether corporate or not, notwithstanding that it is created for purposes of the very greatest importance, is personally answerable for acts done under color of the authority conferred upon it, but, in fact, in excess of that authority and without legal justification.
    2. The immunity of a sovereign against suits arising out of such unlawful acts does not extend to those who acted in its name, and cannot be set up by them as a bar to suits brought against them for the doing of such unlawful acts.
    On appeal from a decree in chancery advised by Vice-Chancellor Poster, whose opinion is reported in 97 N. J. Eq. 102.

      Mr. John Milton and Mr. Frederick R. Goudert (of the New York bar), for the appellant public" trustee.

      Mr. Arthur II. Biss ell, Mr. Boardman Wright and A. W. Lafferty (of the New York bar), for the respondent, Adolph Pilger.

      Mr. Richard V. Lindabury, Mr. William Averall Brown (of the New York bar) and Mr. John W. Bishop, Jr., for the appellant United States Steel Corporation.
   The opinion of the court was delivered by

Gummeke, Chief-Justice.

The complainant, a resident of Germany, filed his bill in this cause praying a decree against the defendant public trustee, adjudging that certain shares of stock of the United States Steel Corporation of New Jersey, purchased by him, the complainant, in 1914, and which were held for him by the Dresdner Bank, at its branch office in London, and which had been seized by the said defendant, a corporation sole of .the United Kingdom of Great Britain and Ireland, and which, he avers, are wrongfully and unlawfully detained by said defendant, who refuses to deliver them to him, be surrendered and transferred to him by said defendant. To the complainant’s bill the defendant, public trustee, filed an answer in the nature of a plea to the jurisdiction of the court, setting up that in seizing the stock certificates of the complainant and retaining them in his possession he was and is acting as the alter ego of the sovereign of Great Britain and Ireland; that the suit against him is, in its legal aspect, a suit against the sovereign himself; that a sovereign cannot be sued in any court without his consent; that the British sovereign has not consented to the prosecution of this present suit, and that, therefore, the court of chancery is without jurisdiction to hear and determine it. The complainant thereupon moved to strike out the answer on the ground that the fundamental allegation contained therein, namely, that the suit in its essence is against the British government, was contrary to the fact and unsound in law; and, upon the conclusion of the hearing had upon this motion, an order was made striking out the answer for the reason that the claim of the public trustee was without legal merit. The appeal now before us is taken to review the validity of that order.

The contention made by the appellant, both in the court of chancery and before us, necessarily is that, although his present retention of the stock is not justified by the statute under which he was appointed public trustee or by the rules and regulations adopted thereunder (this being the conclusive inference to be drawn from the averment of the complainant’s bill), and although the legal title thereto and the right of possession thereof is in the complainant, nevertheless, the doors of the courts of this state and of every other state and nation are closed against the latter, he cannot enforce his legal rights by judicial procedure, unless the public trustee or some other duly authorized representative of the British government consents that he shall do so.

Not only is this contention repugnant to the sense of judgment which dwells in the mind of every fair-minded man, but it is, in our opinion, without legal support. The public trustee is undoubtedly a governmental agency, and, to the extent that his acts are within the scope of the powers vested in him as such agent, it must be conceded that he is the representative of his government; that suits brought against him for the commission of such acts are, in legal effects, suits brought against the government itself, and that such suits cannot be maintained in the absence of governmental consent. In the present case, however, the averment of the bill is that the appellant wrongfully and unlawfully detains the stock certificates referred to therein and refuses to deliver them to the complainant, and this, as we view it, is tantamount to a declaration that he is not only acting outside of the scope of his authority, but in direct violation of the duties imposed upon him as such governmental agent. An instrumentality of government, whether corporate or not, although created for purposes of the very greatest importance, does not cease to be personally answerable for acts done under color of the authority conferred upon it, but, in fact, in excess of that authority and without legal justification. [' The immunity of a sovereign against suits arising out of \the unlawful acts of its representatives does not extend to i those who acted in its name, and cannot be set up by them j as a bar to suits brought against them for the doing of such ' unlawful acts. It was so held in the ease of Sloan Shipyard v. United States Fleet Corporation, 258 U. S. 567, 568, and neither the research of counsel, nor our own examination of the later decisions of that tribunal, has brought to our attention any criticism of the doctrine there laid down. Its soundness, to our minds, is apparent.

We are not unmindful of the fact that counsel for the appellant, in his argument before us, asserted that the action of the public trustee in refusing to deliver the stock in question to the complainant, is not unlawful, but is fully justified, for the reason that in doing so he is acting within the powers conferred upon it by the British statute and the rules and regulations adopted thereunder, which have already been referred to. We are not, however, presently concerned with the legality of the appellant’s action. Whether or not it is in fact justified is a matter to be determined on a final hearing on the merits, and has no bearing upon the single question presented by this appeal — that is, whether, on the basic fact exhibited in the bill of complaint, the court of chancery has jurisdiction to determine as against the appellant, the right of the respondent to the certificates of stock which are subject of tlie present litigation.

The order under review will be affirmed.

For affirmance — Ti-ib Ciiiee-Justice, Trencitard, Parker, Mintuen, Kalisch,. Black, Campbell, White, Gardner, Yan BusiaRK, McGlennon, Kays, JJ. 12.

For reversal — Katzenbacii, Lloyd, JJ. 2.