author: GAimisosr, V. C.

text:
    Anna D. Babbitt v. Fidelity Trust Company et al.
    [Decided February 2d, 1906.]
    Foreign executors are not involuntarily amenable to compulsory process in a suit in New Jersey where no probate proceedings of any sort have been had in this state, and the said executors have not done anything whatever within the state, unless the suit is either in rem or quasi in rem.

    Heard on amended bill and plea.
    Anna D. Babbitt, the complainant, was the daughter of Charles G. Campbell. Charles G. Campbell in 1898 conveyed all of his 'property, real and personal, to the Fidelity Trust Company, a corporation located at Newark, New Jersey, in trust for certain purposes declared in the instrument. Among other things it was to pay a monthly sum to the complainant, and upon the death of the said Charles G. Campbell certain payments were to be made, and the surplus or balance of the said trust estate was to be divided among the heirs-at-law of Charles G. Campbell according to the intestate laws of the State of New Jersey, the personal property of said estate to be divided, as aforesaid, according to the statute of distributions, and the real property then remaining in possession of the trustee to be divided, as aforesaid, according to the statute of descent.
    Charles G. Campbell died on the 29th of May, 1905, leaving him surviving the complainant, his daughter; a son, and children of a deceased daughter.
    The complainant charges that in March, 1902, she' had a transaction with the New York Finance Company, a corporation of the State of New York, which transaction took place wholly within the State of New York. In the course of this business she charges that she obtained a loan of $10,000, for which, she gave as security a promissory note for $10,000 to the order of William Brewster Wood, of Philadelphia, Pennsylvania, upon which six per cent, interest was stipulated to be paid, and pledged therewith, as collateral security, all her right, title and interest in and to the estate of the said Charles G. Campbell coming to her at the death of said Charles G-. Campbell, with certain conditions respecting their right to sell, &c., fully set forth in the bill. In addition to the collateral undertaking just referred to, she and her husband made an assignment of all of her interest in and to the estate of Charles G. Campbell, real and personal, with certain provisions set out in the bill; that said assignment was duly recorded on the 24th of March, 1902, in the Essex county register’s office, in a book of deeds. She charges that she also gave, as consideration for the said loan of $10,000, a promissory note to the New York Finance Company aforesaid, dated March 24th, 1902, in the sum of $5,000, payable at and after the death of Charles G. Campbell, and’ pledged therewith, as collateral security, all of her right, title and interest in and to the estate of the said Charles G. Campbell coming to her at his death, and, in addition, gave to the said New York Finance Company an assignment of all her right, title and interest in and to the estate of said Charles G. Campbell coming to' her at the death of said Charles G. Campbell, with certain provisions set out in full in the bill, which said assignment was executed by her and her husband, and was duly recorded in the office aforesaid on the 24-th of March, 1902, in a book of deeds.
    In addition to these papers she also execrated an agreement with the New York Finance Company, which is set out in the bill, wherein it is recited that the New York Finance Company had procured Wood to make the loan to her of the $10,000, and that the New York Finance Company agrees to advance and pay interest on the loan and any premiums on the policies of insurance given therefor, and to protect her against any foreclosure of the loan until the absolute vesting in possession of the aforementioned estate, in consideration of which the complainant agreed to pay the New York Finance Company $5,000 in the manner above stated, and also to repay any and all moneys which the said company might have advanced on account of the interest on said loan or for premiums of insurance.
    She charges that this transaction and each of the notes and assignments and pledges were executed and-entered into in the State of New York in pursuance of a corrupt and usurious-contract contrary to the laws of New York, setting out in full in the said bill the statutory provisions of the State of New York the effect of which is to render usurious contracts void.
    There are allegations in the bill concerning transactions by others of the cestuis que trust respecting their interests in this estate, and a charge that the trustee refuses to account.
    It is prayed that the New York Finance Company and the executors of Wood may discover the facts concerning the transactions above set forth; that the notes, assignments and agreements executed and delivered by the complainant to the New York Finance Company and to Wood may be declared null and void, and may be decreed to be delivered up to be canceled, and that an injunction may issue restraining the parties just named from assigning or parting with the possession of the said instruments; that the New York Finance Company and the executors of Wood may be decreed to reconvey to the complainant such right, title and interest in and to the estate of said Campbell coming to the complainant as heir of said Campbell.
    • An injunction is also prayed against the Fidelity Trust Company to restrain it from paying or delivering to the New York Finance Company and the executors of Wood, by virtue of said notes and assignments, any right, title and interest in and to the estate of Campbell to which complainant is entitled.
    An account is prayed against the Fidelity Trust Company, and a decree that any balance found to be due to the complainant may be ordered to be paid to her.
    The parties defendant to the bill, in addition to the Fidelity Trust Company, the trustee, are the New York Finance Company, the executors of Wood, and all the cestuis que trust or those acquiring interest or claiming to have acquired an interest through said cestuis que trust in the-estate-of Caihpbell.

      To this bill the executors of William Brewster Wood filed a plea, appearing in this cause solely for the purpose of contesting the jurisdiction. Their plea is to the whole of the bill, and sets forth that Wood died a resident of Philadelphia, Pennsylvania, where his will was duly proven and where these éxecutors were duly commissioned; that said will has never been proved in New Jersey, nor have any letters testamentary ever been issued therein to these defendants or either of them; that no exemplified copy of the said will, proof, probate or letters testamentary therein has ever been filed by them or either of them in the State of New Jersey, and that without the assent of the executors the courts of New Jersey cannot assume jurisdiction over them as executors as aforesaid. They pray the judgment of the court whether they should be compelled lo make any further or other answer to the said bill, and pray to be dismissed.

      Mr. Henry II. Fryling, for the complainant.

      Messrs. Collins •& Corbin, for the executors of Wood, defendants.
   GAimisosr, V. C.

It is apparent from the above resume of the pleadings that the objects of this bill are various. The complainant seeks, as to matters that concern the pleading defendants, to enjoin them from bringing actions upon the note she gave to Wood; to have this note and the pledge of her interest in her father’s estate as collateral thereto, and the assignment of such interest, also given as collateral, declared to be null and void.

In so far as the so-called assignment was a transfer of interest in real estate, it does not appear that the executors have any interest, since, of course, Wood’s title thereunder would pass to his heirs-at-law, unless his will otherwise disposed of it.

She also seeks an accounting from the trustee, the Fidelity Trust Company, in which accounting Wood, or since his death the representatives of his estate, are undoubtedly interested because of the pledge and assignment given by her as collateral to the note given to Wood, and presumably now held by them.

If this bill did not call for an accounting from the trustee, I think it too clear to admit of discussion that these foreign executors could not be made amenable by compulsory process in this slate in such a suit. Whether such issues would be determined in a suit in which an account was being taken, if all of the parties to be affected were before the court, it is not necessary for me to and I do not decide.

The only arguable ground upon which, the complainant can seek to maintain the jurisdiction of the court over these foreign executors is that this is a bill for an accounting and that they are interested in the subject-matter of the account.

It is undoubtedly the law that in a suit for an accounting in equity, it is proper to make parties defendant all those who have or who apparently have any interest in the subject-matter of the accounting.

From the charges in the bill it is clear that the decedent, represented at his domicile by these foreign executors, had such an interest in the subjcet-matler of this accounting as to make him or those representing him proper parties thereto.

The complainant insists that these defendants have been properly joined, for, as he says in Ms brief, “they might have determined to assent and, by the entry of appearance, submit to the jurisdiction of this court.”

Although courts disagree as to whether or not voluntary submission to suits by foreign executors confers jurisdiction upon the court (13 Am. & Eng. Encycl. L. (2d ed.) 961), our courts are among those which hold affirmatively upon this subject. 13 Am. & Eng. Encycl. L. (2d ed.) 961. But this does not aid the complainant. The court of errors and appeals has directly passed upon a similar principle which controls the present situation. In the case of Wilson v. American Palace Car Co., 65 N. J. Eq. (20 Dick.) 730 (1903) (at p. 732), that court said: “The reason given in the court below for the order in question was that it was necessary or proper for the complainants to make these persons defendants in the bill, and that they ought to have an opportunity to defend the suit. This may be conceded, but it by no means follows that they can be-obliged to submit to the jurisdiction, or that their presence is necessary to enable the court to deal with the rights of other parties in the suit.” * * * At p. 733: “It remains, therefore, only to determine whether the matters stated in this plea show the defendants to be be3rond the compulsory jurisdiction of the court, and if they do, then formally to dismiss the defendants from the controversy in which they declare themselves unwilling to participate.”

Wood having died in Philadelphia, and the executors of his will being there commissioned, and no grant having been made in New Jersey to them, they are, as to us, foreign executors, and they have declared themselves unwilling to participate in this suit.

In strictness, the grant of administration operates only within the jurisdiction where it is granted. It gives no legal right to collect debts or recover the possession of property elsewhere. Lewis v. Grognard, 17 N. J. Eq. (2 C. E. Gr.) 425 (Green, Ordinary, 1865) : 13 Am. & Eng. Encycl. L. (2d ed.) 916.

The general rule is well settled that an executor or administrator cannot, in his representative capacity, maintain any action, suit or proceeding, either at law or in equity, in the courts of any sovereignty other than those under whose laws he was appointed or qualified, without obtaining an ancillary grant of probate or letters from the court of probate of such other sovereignty, unless power to sue in the foreign jurisdiction has been conferred upon him by statute. Lewis v. Grognard, supra; Porter v. Trall, 30 N. J. Eq. (3 Slew.) 106 (Chancellor Runyon, 1878); 13 Am. & Eng. Encycl. L. (2d ed.) 945.

And similarly the rule is that an executor or administrator cannot be sued in his representative character, unless he is made liable by statute, either at law or in equity, in the courts of any state or country other than that in which he received his appointment. Durie v. Blauvelt, 49 N. J. Law (20 Vr.) 114 (Supreme Court, 1886) ; Rusling v. Brodhead, 55 N. J. Eq. (10 Dick.) 200 (Vice-Chancellor Stevens, 1896); 13 Am. & Eng. Encycl. L. (2d ed.) 957.

The fact that in law the personal representative of the decedent, deriving his authority from the law of the decedent’s domicile, is invested with the title' to all the personal estate, wherever it may be locally situate, enables him to receive voluntary payments from a foreign debtor and give a valid acquittance (13 Am. & Eng. Encycl. L. (2d ed.) 932), does not make it proper for the complainant to bring suit in this state against such foreign executors.

While it may be true that in theory the right of Wood, with respect to the complainant’s interest in the estate of Campbell, is now vested in the foreign executors of Wood, the law is well settled that they may not assert this right by any legal proceedings unless they qualify themselves in the manner above stated; or, to put it in another way, Wood’s right against the complainant’s interest in the estate of Campbell may not be asserted by anyone except a duly-qualified representative in the State of Hew Jersey.

Similarly, I think, it should be held that nothing which affects that right should be done in the absence of a duly-qualified representative of the estate in this state. Story Eq. Pl. (Redf. ed.) 185 § 179. If these foreign representatives may not sue with respect to it, I do not think they should be held to be suable.

Apart from those cases in which the foreign representatives have voluntarily submitted themselves to the jurisdiction, those cases, referred to by the complainant and found in the text-books and authorities, in which a foreign executor has been sued out of the jurisdiction <of his appointment will all be found to rest upon some affirmative action taken by the foreign representative within the jurisdiction of the court, or cases in which, but for the interference of a court of equity, there would manifestly be a failure of justice or only a hopeless remedy elsewhere. 13 Am. & Eng. Encycl. L. (2d ed.) 959, 963.

It is not shown in the case at bar that the foreign executors of Wood have in any way attempted to act in the State of Hew Jersey, or to do any act with respect to any assets that are within the State of Hew Jersey.

It would not seem that this is a case in which the complainant is without remedy, or that there will be a manifest failure of justice, if these foreign executors are not held amenable to process in this suit, because administration ad litem may be obtained to represent the estate, the precedents and practice with respect to which will be found in Dan. Ch. Pl. & Pr. (6th Am. ed.) 196, *201 et seq.; Dick. Ch. Prec. (Rev. ed.) 57 et seq.; Dick. Prob. Ct. Pr. 56 et seq.; Lothrop’s Case, and note thereto, 33 N. J. Eq. (6 Stew.) 246 (Runyon, Ordinary, 1880).

Eren if this be a suit in which limited administration of the character just alluded to would not be proper, the complainant could proceed under the twenty-third section of the Orphans Court act. P. L. 1898 p. 721. Under that section any person who desires to have a foreign will probated in this state for any purpose may apply to the ordinary, who, upon being satisfied with respect to certain facts, shall admit the same to probate and issue letters testamentary, or of administration with the will annexed.

Under all of the authorities, therefore, I conclude that these foreign executors are not amenable to compulsory process in this suit, and that the plea should be sustained.

The practice with respect to the form of the plea, and the propriety of raising this question by plea, and the effect of the judgment on the plea, are settled in the case of Wilson v. American Palace Car Co., supra.


source: Caselaw Access Project

author: Magie, Oedhstary.

license: Public Domain

text:
    In the matter of the estate of Eva R. Polley, deceased.
    [Decided December 14th, 1905.]
    A testatrix bequeathed and devised to her infant daughter all her residuary estate absolutely, with the following proviso: “Provided, however, that if my said daughter should die before attaining the age of twenty-one years or without disposing of the same or all of it, or without having made a last will and testament,” then over.—Held, (1) That in construing the proviso, “and” cannot be substituted for “or,” as such substitution would express a sense contrary to the plain intent of testatrix; (2) That, considering the incapacity of the infant to make a will or dispose of property during minority, an intent is disclosed to make applicable the first contingency to the period of minority, and the two other contingencies to the infant’s life after coming of age; (3) That upon this construction, the power of disposal given to the first taker will not avoid the gift over, if the first contingency, viz., death of the infant during minority, shall happen; whether, if the infant survives to be twenty-one, the power of disposal thus given will not avoid the gift over, quaere.

    On appeal from the Passaic county orphans court.

      Messrs. Pitney ■& Hardin, for.the appellants.

      Messrs. Horton & Tilt, for the respondents.
   Magie, Oedhstary.

Eva E. Polley, by her will, probated May 11th, 1900, appointed her mother, Eose Eyerson, and her sister, Laura Watson, executrices, and directed' them to pay debts and funeral and testamentary expenses, and then provided as follows:

“I give, devise and bequeath to my daughter, Viola Polley, all my estate, both real and personal of every kind and nature whatsoever, to be hers absolutely; provided, however, that if my said daughter should die before attaining the age of twenty-one years, or without disposing of the same or all of it, or without having made a last will and testament, then and in such case I give, devise and bequeath the same to my said mother and sister, share and share alike.”

By an order made March 30th, 1905, the orphans court of Passaic county, after adjudicating that the proviso of the will, above quoted, was void, directed that certain chattels, which comprised the residue of the personal estate of the testatrix in the hands of the executrices, should be delivered to Eobert H. Eordyce, the guardian of Yiola Polley (who is a minor), on his paying certain sums which, by the account of the executrices previously allowed by the court, were due them from the estate. Notwithstanding the adjudication that the proviso was void, which adjudication seems necessarily to deny any contingent interest of Eose Eyerson and Laura Watson in the residue of testatrix’s personal estate, the order directed the guardian to give security to protect their interest.

The appeal before me is taken by Rose Ryersoh and Laura Watson from the order above stated, and they claim, first, that the orphans court possessed no jurisdiction to pass upon the meaning of the will and make such an order as was made; and second, that if there was jurisdiction in the orphans court, it erred in its construction of the proviso which was adjudged void.

By the opinion of the learned judge of the orphans court it appears that his conclusion was reached upon the ground that the three distinct contingencies, on the happening of which the gift over was to take effect, were co-terminous, so that death before twenty-one years, and death without having disposed of all the gift, or death without having made a will, were all contingencies applicable during the minority of the infant. Upon such construction the inference was that a power of complete disposition having been disclosed, the gift was absolute, and the proviso for a gift over was unavailing.

If the learned judge correctly divined the intent of testatrix as disclosed by the clause above set out, it would seem that his deduction is in accord with the well-known rule that an absolute gift with unlimited power of disposition will not be limited by a gift of what has not been disposed of, because of an incompatibility of the gift over with the absolute gift. Borden v. Downey, 35 N. J. Law (6 Vr.) 74; S. C., 36 N. J. Law (7 Vr.) 460; McClellan v. Larchar, 45 N. J. Eq. (18 Stew.) 17; Rodenfels v. Schumann, 45 N. J. Eq. (18 Stew.) 383; Dodson v. Sevars, 52 N. J. Eq. (7 Dick.) 611; S. C., 53 N. J. Eq. (8 Dick.) 847; Annin v. Van Doren, 14 N. J. Eq. (1 McCart.) 135; Benz v. Fabian, 54 N. J. Eq. (9 Dick.) 615.

But I am unable to'attribute to the words of the proviso the meaning which the court below gave to' them. In my judgment, the words disclose a different intent on the part of testatrix.

, The three contingencies, on the happening of all or one of which the gift over is to take effect, are not connected by the copulative “and,” but by the disjunctive “or.” In support of the order appealed from, it is argued that “or” may be, and in this case should be, read as if it were “and.” There is no doubt that such substitution has been made in many cases. Nevison v. Taylor, 8 N. J. Law (3 Halst.) 43; Den v. Mugway, 15 N. J. Law (3 Gr.) 330; Holcomb v. Lake, 24 N. J. Law (4 Zab.) 688; S. C., 25 N. J. Law (1 Dutch.) 609.

In the court of errors and appeals it was declared that when there is a devise with a limitation over in case the devisee die under twenty-one or without issue, the word “or” must be construed “and,” unless there are words in the will manifesting a contrary intention. Holcomb v. Lake, 25 N. J. Law (1 Dutch.) 613. With such a limitation over, the inference of an intent which could only be expressed by the use of the copulative is so persuasive as to require that use, unless other words in the will forbid it. But where the limitation over is on contingencies which indicate in their language a particular intent which would not be expressed by the substitution of “and” for “or,” then no such substitution should be made. To do so would be to thwart the will of the testatrix.

In this case the substitution of “and” for “or” would be contrary to the manifest intention of the testatrix, in my judgment.

At the time of the execution of the will the primary beneficiary was an infant of a few years of age. She could malee no will until she became of age. During minority she could not dispose of her property. When her mother, by this proviso, made a gift over upon one contingency, viz., death of the infant during minority, and then added two other contingencies, viz., death without having disposed of the property and death without having made a will, it seems to me clear that her intent was that the latter two contingencies were only to take effect on the gift after the infant became of age, and was capable of making a will and disposing of the property. It should' be read thus:

“Provided, however, that if my said daughter should die before attaining the age of twenty-one years, or ‘if after attaining such age she should die’ without having disposed of the same or all of it, or without having duly made a last will and testament, then S: * * I give,” &c.

Upon this construction the first contingency is the only one operative during the infant’s minority. When the other contingencies come into operation, upon the infant’s árriving at full age, it may be questioned whether, since a complete power of •disposition is then given, they will not be wholly void. But that ■question is not now presented.

It results that it was erroneous to adjudicate that the proviso is void. On the contrary, that part which provides for a gift over if the infant dies before twenty-one is effective, and while the residue may be taken by the infant’s guardian, the court may require security to be given to those who will succeed if that contingency happens, pursuant to the proviso.

This result renders it unnecessary to determine whether the orphans court had jurisdiction to make such an order. It is conceded that its power in that respect arises solely from legislation which is now contained in section 173 of the act entitled “An act respecting the orphans court, and relating to the powers and duties of the ordinary and the orphans court and surrogates,” approved June 14th, 1898. P. L. 1898 p. 715.

Whether such legislation is within the constitutional power of the legislature has been questioned. Adams v. Adams, 46 N. J. Eq. (1 Dick.) 298; In re Lippincott Estate, 68 N. J. Eq. 578.

It may be further observed that the transcript discloses no application on the part of the guardian such as is required by the act. As this legislation seeks to transfer to the orphans court the jurisdiction which the court of chancery always possessed over suits for the recovery of legacies, and the incidental jurisdiction over the construction of wills, it is not possible to conceive that the legislature intended that the orphans court could be moved to act without some formal petition setting out the applicant’s claim. If the legislation is effective, it has been determined that an order or decree made thereon will have no force as to-a person interested, unless notice to him has been given of the application. Adams v. Adams, ubi supra. It therefore seems clear that a formal application should be made in such cases, and the parties in interest should be brought in by some process or notice.

But upon the erroneous construction of the will in question, I conclude that the order appealed from must be reversed.


author: Bergen, Vice-Ordinary.

text:
    In the matter of the estate of Georgiana E. Hartman, deceased.
    [Decided December 20th, 1905.]
    1. For the purpose of assessing collateral inheritance tax, the situs of the personal property of the decedent is the domicile of the decedent at the time of death, and the right of its imposition is not affected by the fact that a statute of a foreign state subjects to similar taxation such portion of the decedent’s personal estate as is located therein.
    2. Where a husband and wife resided together most of the time at her home in New York City, but spent the week ends at the husband’s domicile in New Jersey, where he was engaged as a clergyman, the wife’s domicile was that of her husband, in New Jersey.
    3. Where a decedent was domiciled in this state at the time of her death, collateral inheritance tax was properly assessed on legacies bequeathed to collateral relatives as of the date of her death, regardless of the fact that her will was not probated in New Jersey.
    On appeal from assessment of collateral inheritance tax.

      Mr. John R. Hardin, for the appellant.

      Mr. Edward D. Duf/ield, assistant attorney-general, and Mr. Theodore Baches, for the respondents.
   Bergen, Vice-Ordinary.

The decedent, Georgiana E. Hartman, was the wife ■ of Charles Harvey Hartman, they having married on the 5th day of April, 1899, in Hew York City. At the time of the marriage the husband' was the rector of the Episcopal church in the city of Dover, in this state, and occupied, with his mother, the rectory of his parish. The furniture in use belonged to the mother, Svho managed the house—had the entire charge thereof—and remained in the rectory after the marriage upon the same terms. It is admitted by the appellant that the legal residence of the husband never changed, and that he has, since his settlement in Dover, continued1 to be a resident there. The decedent was a wealthy woman, and at the 'time of her marriage owned and resided in. a valuable property on Madison avenue, in New York City, and until her death maintained her establishment at that place, living in the liberal manner her wealth justified. It appeared in the cause that the wife had repeatedly declared that she would never remove to Dover 'for the purpose of establishing lier home there; that after the marriage the husband lived with his wife in New York City'during the week, she going with him to Dover at the end of each week, where they remained until the beginning of the next week, in order that the husband might officiate during the Sunday services; that the wife also, went to Dover with her husband to attend occasional entertainments arranged for the benefit of the church; that it was her practice to spend about two. weeks in the spring and a like period in the autumn of each year at the rectory in Dover: that these visits were a part of her summer vacation, the residue of which she usually spent with her husband at Long Branch, to which place she took her servants, horses and carriages; that in the month of May, 1903, the decedent accompanied her husband to Dover for the purpose of attending a church entertainment, expecting to remain but a day or two, and while there was taken suddenly ill and died, and her remains were at once taken to her residence in New York City, the funeral services being held at the residence,- and also at St. Thomas’ Church, in that city.

It was further made to appear that the will of the decedent was admitted to probate bjr the surrogate of the county of New York, and that in the application for probate her residence was described as being in New York City; that the decedent had no property of any kind or description in the State of New Jersey, and never at any time obtained a residence therein, beyond such as the law imputes to a wife of one whose domicile is within this state; that her property' consisted of real and personal estate, the personal remaining in the custody of the decedent in the -state where she resided at the time of her marriage, and all of the real estate being located in the same place.

The executors of the decedent proceeded to administer the estate under the laws of the State of New York, paying to the proper authorities of that state collateral inheritance taxes levied against legacies to collaterals upon $77,500.

In January, 1905, one Elmer King, having been appointed appraiser by the surrogate of the county of Morris, proceeded to and did appraise so much of the estate of the decedent as would be liable to a tax under the laws of this state, making subject to a tax “estates, gifts, legacies, devises and collateral inheritances in certain cases.” The appraiser so appointed having made his report, the surrogate of such county assessed against the collateral legatees an inheritance tax of the precise character and amount levied and collected by the authorities in New York City, and it is from this order of the surrogate that this appeal has been taken. The appellants insist that, although the domicile of the husband of the testatrix was in New Jersey at the time of the death of the decedent, the usual rule which makes the domicile of the husband the domicile of the wife does not apply in cases of this character, and that for the purpose of levying a succession tax, a decedent, being a wife, may have a residence for the purpose of taxation separate from the legal domicile of the husband. The appellants also insist that as this will was probated in a foreign jurisdiction, within which all of the property which passed by the will was located, succession taxes were due and payable only to the authorities of the state within which all of the property was located; and, further, that the right to levy a tax of this character against collateral legatees is subject to the fact of administration, and that if property within a foreign jurisdiction is not brought within the state for distribution among the legatees the surrogate is without authority to make the assessment complained of.

That the personal property of this testatrix was subject to the law of New York regarding succession taxes has been so often determined as to place the question beyond useful argument. Matter of Houdayer, 150 N. Y. 37, where funds deposited in bank, subject to draft at will, were held liable; Matter of Estate of Romaine; 127 N. Y. 80, where securities kept in. a safe deposit vault by a non-resident were, after his death, subjected to such a tax.

It is thus apparent that if this assessment be sustained the result will be the requirement of the payment of two taxes, of like character, by the same legatees, for the right of succession to the gifts of the testatrix, but this unfortunate situation cannot control the determination of the questions presented, for such a condition frequently arises, and while its presence always induces most careful consideration on the part of the court to find some legal method to prevent it, it must be submitted to unless it can be avoided under settled rules relating to the subject. State, Golding v. Chambersburg, 37 N. J. Law (8 Vr.) 258; Blackstone v. Miller, 188 U. S. 189.

If this testatrix at the time of her death was a resident of this state her personal estate passed to these collateral.legatees under her will, subject to the assessment for succession taxes, the order for the assessment of which is here complained of, for “It is still the law that personal property is sold, transmitted, bequeathed by will, and is descendible by inheritance according to the law of the domicile.” Eidman v. Martinez, 184 U. S. 578.

The law of Hew York on this subject is for all practical purposes identical with the law of this state, and in construing it Judge Gray, in Matter of the Estate of Swift, 137 N. Y. 77, presents very strong and cogent reasons in support of his opinion that the tax provided for is only enforceable as to property which, at the time of its owner’s death, was within the territorial limits of the domiciliary state, but the majority of tire court were not convinced by his reasoning, and held that personal property of a resident decedent, wheresoever situated, whether'within or without the state, was subject to the tax imposed by the act. The great weight of authority favors the principle adopted by the Hew York court of appeals holding that the tax imposed is on the right of succession under a will, or by devolution in case of intestacy, and that as to personal property, its situs, for the purpose • of a legacy or succession tax, is the domicile of the decedent, and the right to its imposition is not affected by the statute of a foreign state, which subjeets to similar taxation such, portion of the personal estate of any non-resident testator or intestate as he may take and leave • there for safekeeping, or until it should suit his convenience to cany it away. Thomson v. Advocate-General, 12 Cl. & F. 1.

The remaining question relates to the residence of the testatrix. Her abiding place was undoubtedly in the city of Hew York, but the legal domicile of her husband was in this state, and it must be conceded that the established rule is that where the husband and wife are living together as members of one family the residence of the husband is considered, in law, as the residence of tire wife. Baldwin v. Flagg, 43 N. J. Law (14. Vr.) 495; Hunt v. Hunt, 72 N. Y. 217; McPherson v. Housel, 13 N. J. Eq. (2 Beas.) 35. The exception in favor of a married woman .in proceedings for divorce against her husband, he having abandoned her and acquired a residence in another state, is founded upon a rule which ‘ does not apply where the husband and wife are living together.

The neglect to probate the will in this state was urged as depriving the surrogate of jurisdiction, but in my judgment the authority of the surrogate does not depend upon the probate of the will,-which speak-s from the death of the testatrix, and in my opinion the property passed to these collateral relatives by this will upon the death of the testatrix, and was not postponed or suspended for want of probate. The tax is to be assessed as of the date of the inheritance, and the amount of the assessment is not affected by tire increase or depreciation of the estate between the death of the testatrix and the probate of the will, which in cases of contest may cover a long period, for the act provides that all taxes imposed “shall be’ due and payable at the- death of the testator.” P. L. T&9'4 ch. 210 § k-

The result is that this petition must be dismissed, with costs.


author: Bergen, Tice-Ordinary.

text:
    In the matter of the probate of the last will and testament of Philip Acker, deceased, and of letters testamentary thereon.
    [Decided December 29th, 1905.]
    1. Ón an appeal from an order of the orphans court it is improper for the appellant to annex to the record the argument of counsel.
    2. That the person named in a will as executor is a non-resident is no ground for refusing to grant him letters testamentary.
    3. That the person named in a will as executor claims a considerable part of the estate under a conveyance to him by the testator, which was adjudged to be a mortgage and not an absolute conveyance, resulting in antagonistic feelings between the executor and the legatees, is not a sufficient reason for excluding him from the executorship.
    4. The section of the Orphans Court act which provides that if the executor named in a will neglects for forty days after the testator’s death to prove the will, administration with the will annexed shall be granted to the next of kin or to such other person as will accept it, does not apply where there is a reasonable excuse and the legatees and next of kin neglect to assert the executor’s failure to act within the time prescribed and until after the executor has presented the will and is endeavoring, in due form, to secure its probate.
    On appeal of Joseph B. Acker from the decree of the orphans court of the county of Middlesex granting letters testamentary.

      Mr. John A. Goan and Mr. George S. Silzer, for the appellant.

      Mr. Theodore Strong, for Sarah A. Breece, respondent.

      Mr. Charles T. Coivenhoven, for Catherine Decker and Margaret Martin, respondents.
   Bergen, Tice-Ordinary.

By the decree of the orphans court of the county of Middlesex, hearing date the 25th day of July, 1905, a paper-writing, alleged to he the last will and testament of Philip Acker, deceased, was admitted to probate, and in the same decree letters testamentary wexe refused to the appellant, although nominated in such last ' will and testament to be the executor thereof, and letters of administration with the will annexed were directed to be issued by the surrogate of the county of Middlesex to a stranger, against the protest of the appellant, who had offered the will for probate and was present in court offering to qualify as executor when the decree was made. From so much of this decree as denied to the appellant the right to qualify as executor, and orders the appointment of a stranger in his place and stead to administer the estate, this appeal is taken.

The record brought up, as certified by the clerk of the orphans court, has annexed to it twelve printed pages containing the argument and discussion of counsel prior to the examination of the witnesses. It is proper that such a practice should be condemned. It forms no part of the record, and in no way aids tire court or affects the merits of the case. So much of this record as it is proper the court should consider shows that a caveat was filed against the probate of this will; that the will was not probated by the executor until about one year after the death of the testator; that as the result of litigation during that period between the legatees and this executor with regard to the property of the testator a decree was made by the court of chancery adjudging that a certain deed made by the testator to the executor should be set aside as a deed, but be allowed to stand as a mortgage to secure an indebtedness which that court adjudged to be due to the executor from the testator. The -will was then offered for probate by the executor, upon an application made by him, verified in due form, and citations were thereupon issued to all persons interested. The application was made on the 5th day of May, 1905, and the hearing of the controversy continued, bv order of the orphans court, from time to time, until the 25th day of July next following, when the decree complained of was made. There is no evidence showing how the caveat was disposed of, but as all presumptions should be in favor of the regularity of the decree, and no appeal being taken from the order for probate, it must be assumed that the court was satisfied by due proof that the paper admitted to probate was the last will and testament of the testator executed and published in due form.

The only witness sworn on the question of administration was .Sarah A. Breece, one of the daughters of the testator, who testified that the executor named in the will resided in Brooklyn, blew York, and that he had the possession of the property of fhe testator. She also testified that one of her sisters was feeble-minded, and not a fit person to whom the administration should be committed. There is not a particle of testimony to show that the executor named in the will and the appellant here had ■changed in condition, financially or mentally, from the time he had been selected by the testator to act as the executor of his last will and testament, or had committed any act which would, dn law, disqualify him from serving in that capacity. The fact that he is a non-resident is not sufficient, and the security which the statute requires from a non-resident executor, was expressly waived by the testator in his last will. There is nothing in this record, beyond one point, to which I shall hereafter refer, which ■presents the slightest justifiable reason for refusing to this appellant the performance of the duties which this testator committed to him.

On the argument it was alleged, in support of this decree, that because of the litigation referred to, the appellant had unfairly sought to secure the whole estate, and being defeated in the .attempt, occupied a position so antagonistic to the rights of the legatees that he would not fairly administer the estate. While ■the only proof presented was a copy of the final decree, and in the absence of the record of the cause to which the decree related Iras no evidential force, we may assume that such antagonism •existed, and yet find that it worked no disqualification.

In the matter of the application of John S. Maxwell, 3 N. J. Eq. (2 Gr.) 611, the executors named in the will of John 'Maxwell, deceased, were John S. Maxwell and William H. Sloan. A caveat was filed by several persons, John S. Maxwell being ■one of them. TTpon appeal to the prerogative court, the paper-writing against which Maxwell had filed a caveat was admitted do probate, and thereafter he claimed to be admitted as executor with Sloan. It was objected to because it was claimed he had disqualified himself by joining in the caveat. The ordinary, in a well-considered opinion, determined “that where a will is admitted to probate, an executor named therein, if capable in law, is not to be excluded, unless he has by some act of his own deprived himself of the executorship.” He held that such an act did not amount to a renunciation, and that until it was shown that there was a will it did not appear that there was an executorship to renounce, and said: , “It seems to me not difficult to reconcile the denial of the existence of a will with a willingness to serve as executor if a will exists and is established.” The case just cited, so far as I have been able to discover, has never been questioned by the courts of this state.

The point most seriously relied upon by the respondents in support of this decree arises under the proper construction of section 27 of our Orphans Court act (P. L. 1898 p. 715), which enacts, among other things, that if the executor named in any testament-neglects, for the space of forty days after the death of the testator, to prove such testament, then administration with the will annexed shall be granted to the next of kin, if they will accept it, and if not, then to such other person as will. The respondents claim that as this executor neglected for more than forty days after the death of the testator to prove the will, he forfeited his right. If this contention was correct it would not support this decree, because it does not appear that the notice required by rule 2 of the orphans court has been given to the persons in interest. But aside from the question of notice, the statute in question has no application to the matter under review, for, in my judgment, it can only be called upon to aid a party who shall institute proceedings under it prior to the application of the executor. The act, if read literally, requires the executor to “prove” the will within forty days. That he could not do in this case, because of the interposition of a caveat. The object of the law is to provide for a prompt administration of the estate of deceased persons, and when, as in this case, neither creditor, legatee nor next of kin made any move until after the executor had filed in due form his petition for probate, the reason for committing administration to another, that is, promptness in the settlement of the estate, disappears, for after the executor has instituted proceedings for probate, the presumption is that he will proceed with all necessary promptness to carry out the wishes of the testator. The next of kin and legatees, having neglected to promptly avail themselves of the alleged neglect, and waited until this executor was endeavoring in due form to probate his testator’s will, have waived any right they might have had to administration. In my judgment, so much of this decree as refuses to the appellant the right to such letters testamentary as naturally followed the probate of the will is erroneous, and should be reversed in order that the administration may be committed to him according to law.


author: Gummere, Chief-Justice.

text:
    Christian Buttlar, respondent, v. Mina Buttlar, appellant.
    [Submitted December 12th, 1905.
    Decided June 18th, 1906.]
    On appeal from a decree of the court of chancery.

      Mr. Jolm I. B. Wétter, for the appellant.

      Mr. Marshall Van ~tyinkl6, for the respondent.
   The opinion-of the court was delivered by

Gummere, Chief-Justice.

The complainant filed his bill of complaint for the' partition of certain lands which he alleged were.owned by himself and. the defendant as tenants in common. The defendant by her answer admitted that legal title to the premises was in complainant and herself as tenants in common, but set up that the equitable title thereto was wholly in herself, and, further, that if it should be considered that the complainant had an undivided interest in tire premises she was entitled to a lien thereon as the result of a contract which had been previously entered into by them. The issues raised by the defendant were tried out at great length, and were finally, each of them, determined in favor of the complainant. At the close of the litigation, and upon the application of the complainant, a counsel fee was allowed to■ him and charged against the distributive share of the defendant in tire proceeds of the sale of the lands whereof partition was sought. The appeal challenges the power of the chancellor to charge the payment of the whole of the counsel fee against the defendant’s share of the proceeds of sale, instead of against the gross proceeds.

The authority of tire chancellor to' allow a counsel fee to the complainant is conferred by section 91 of the Revised Chancery act of 1902. P. L. p. 540. The appeal attacks the validity of this statutory provision, and the contention' is that it is unconstitutional because—first, it gives the court power to impose a counsel fee on one class of litigants and not upon another; and second, because it leaves the amount of the counsel fee entirely to the discretion of the chancellor. The constitutionality of this section of the Chancery act has lately received consideration at our hands in the case of McMullin v. Doughty, argued at the March Term, 1905, of this court, and the conclusion which we then reached was that the legislation, was valid, for the reasons stated in the opinion delivered by the chancellor in that case, and reported in 68 N. J. Eq. 780. The brief of counsel' for the appellant presents nothing, either in the way of argument or citation, which was not considered by us in the case just referred to.

For the reasons given in the opinion in the McMullin Case, the decree now under review will be affirmed.

For affirmance—The Chief-Justice, Garrison, Eort, Garretson, Hendrickson, Pitney, Swayze, Reed, Bogert, Vre-DENBURGH, VrOOM, GfiEEN, GRAY, DlLL-14.

For reversal—None.


author: Dixon, J.

text:
    Mary J. Clement et al., respondents, v. Young-McShea Amusement Company, appellant.
    [Argued November 29th, 1905.
    Decided June 18th, 1906.]
    1. A lease of rea} property for more than three years, signed by an agent whose authority is not in writing, has against the principal no other force or effect either in law or in equity than a lease at will, because of the first section of the statute of frauds. £ Gen. 8tat. p. 1602.

    2. A written contract purporting to be made between A and. B is not, under the statute of frauds, sufficient evidence of a contract between A and a third person who is not mentioned in the writing.
    3. The director of a corporation has no authority, as director, to act for the corporation except in his place as a member of the board of directors.
    4. The director of a corporation acquires no additional authority to act for the corporation from the fact that he owns a majority of the corporate stock.
    5. Persons accepting from, an agent a lease of real property for more than three years are bound to ascertain whether he has written authority for executing it.
    6. When an agent executes a contract beyond the scope of his authority, the principal will not ordinarily be deemed to have ratified it, or to be estopped from repudiating it unless he appears to have had actual or constructive notice of its terms.
    7. If an agent, having unwritten authority to .make leases of real property, executes a lease for more than three years,' the knowledge of his principal that the tenant is in possession and paying rent is not sufficient to work either ratification or estoppel.

      , 8: If an agent, having unwritten authority to make leases of real property, executes a lease for more than three years, ratification or estoppel will not be inferred against his principal from knowledge that the tenant was making trade improvements, unless the improvements, of which he had notice, were such as indicated possession under a lease beyond the agent’s authority.
    9. The knowledge of an agent that he has overstepped the bounds of his authority cannot be imputed to the principal.
    10. Knowledge possessed by one person cannot be imputed to another, unless there exists between them a relation of agency, in the exercise of which the knowledge would be pertinent. .
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Bergen, whose opinion is reported in 69 N. J. Eq. SJi'7.

    From July 1st, 1892, until the filing of'tire present bill, the Young-McShea Amusement Company was the owner of a building fronting on the boardwalk in Atlantic City, and known as “Young’s Hotel.” That company is a Hew Jersey corporation, having fifteen hundred shares of capital stock, and during the transactions involved in this litigation John L. Young owned about fourteen hundred and forty of those shares, and was the treasurer and a director of the company. Messrs. Thompson and Fralinger were the other directors, Mr. Thompson being also -the president, and William E. Shackelford, a son-in-law of Young, was the secretary. For a long time Young had controlled the affairs of the company, having unwritten authority to lease its property, and Shackelford had been his manager. Shortly before May 1st, 1902, Thomas J. Clement saw Young with regard to obtaining a lease of a portion of the entrance to “Young’s Hotel” as a stand for the sale of orange juice and similar beverages, and he and Young agreed upon the price. Afterwards, Shackelford handed to- Clement a lease of the proposed stand and its appurtenances, which is now produced by the complainants as the basis of their claim. It reads as follows:
    “This indenture, made the first day of May, a. d. nineteen hundred and two, between John L. Young, of Atlantic City, N. J., party of the first part, and M. J. Clement, of the same place, party of the second part, do grant, demise and to farm let unto the said party of the second part, a certain space situate on the south side of entrance to apartment house, seven feet front on boardwalk by forty feet deep (back to steps), also basement under entrance sixteen feet by forty feet, with the appurtenances, ten years from July 1, nineteen hundred and two, at the rent or sum of two thousand dollars, to be paid $500 on May 1st; ■ $500 on July 1st; $500 August 1st, and $500 August 15th, of each year.”
    Then are inserted provisos and covenants, not now important, and finally:
    “And the said party of the first part do covenant with the said party of the second part, on paying the said rent, and performing the covenants aforesaid, shall and may peaceably and quietly have, hold and enjoy the said demised premises for the term aforesaid.
    “In witness whereof, the said parties have interchangeably set their hands and seals hereto the day and year first above mentioned.
    “John L. Young, “W. E. S.,
    “M. J. Clement.”
    M. J. Clement, named as the lessee, is the wife of Thomas J. Clement, and the signature “John L. Young” is in the handwriting of Shackelford, whose initials are added.
    At the time the lease was made Mr. Clement knew that the company was the owner of “Young’s Hotel,” but did not know that the company was a corporation.
    On July 1st, 1902, Mr. and Mrs. Clement, in pursuance of the provisions of the lease, took possession of the demised premises, and fitted up the same appropriately for their business at an expense of more than $6,000, and have since, up to the present time, earned on business therein. They have also regularly paid the rent prescribed to Shackelford, who collected it as Young’s agent, and deposited it to Young’s credit in bank, and Young has annually included it as so much rent collected in his reports to the company on the state of accounts between the company and himself.
    It does not appear that any counterpart of the lease was ever made or that any director or officer of the company, except Young and Shackelford, had any notice of its terms, but every one of them knew that the Clements were occupying the premises as tenants.
    In July, 1904, the company brought an action of ejectment against the Clements, and thereupon they filed the present bill to enjoin the prosecution of that suit, and to have the above lease established as binding and obligatory upon the company. After full hearing the chancellor decreed that the company should be perpetually enjoined from prosecuting the ejectment suit; that the instrument above set forth was the act of the company, and that the proper officers of the company should forthwith sign, execute and deliver the same to Mrs. Clement as of May 1st, 1902. From this decree the company appeals.

      Messrs. Thompson & Cole, for the appellant.

      Mr. Howard Carrow and Mr. Joseph B. Wilson (of Philadelphia), for the respondents.
    The court having conferred upon this case and reached a conclusion therein, requested Mr. Justice Dixon to prepare an opinion. The following was prepared and copies distributed by him among the members of the court shortly before his death. It has been approved and adopted as the opinion of the court.
   Dixon, J.

The written instrument upon which the complainants base their claim was incapable of creating the term of years therein mentioned, either against the company or against Young, the lessor, because of the first section of the statute of frauds (2 Gen. Stat. p. 1602), which enacts that

“All leases * * * of * * * any * * * tenements * * * made or created * *_ * by parol and not put in writing and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases at will only, and shall not either in law or equity be deemed or taken to have any other or greater force or effect * * * except, nevertheless, all leases not exceeding the term of three years from the making thereof.”

The lease was signed by Shackelford, who had only unwritten authority from Young, and no authority whatever from the company. Consequently, as a .lease, it had, both in law and equity, merely the force and effect of a lease at will. Even if it had been signed by Young him'self, under his authority from the company, it would have had no greater force against the latter, because the authority was not conferred by writing. But the instrument contains, beside the implied covenant for quiet enjoyment, presumed from the word “demise” (1 Washb. Real Prop. 325) an express covenant of like character, and it may be that such a covenant should be held to be covered by the fifth section of the statute of frauds as a contract concerning lands which an agent' may lawfully sign without written authority. Assuming this to be so, the covenant would of itself be sufficient evidence of Young’s -contract, the authority of Shackelford to sign, for him. being unquestioned, but it would be inadequate against the company, under the decisions in this state, because it nowhere points out the company as one of the parties. Schenck v. Spring Lake Beach Improvement Co., 47 N. J. Eq. (2 Dick.) 44; Bowers v. Glucksman, 68 N. J. Law (39 Vr.) 146.

But even if it be conceded that the complainants may discard the written instrument, -except as indicating the terms of an oral contract made with Young, on the strength of which they entered into possession of the premises and made improvements thereon, then we are brought to these questions: (1) Had Young authority from the company to make the agreement? (2) had the complainants a right to assume that he possessed such authority? (3) is the company estopped from denying his authority? (4) has the company ratified the agreement ?

1. Merely as a director, Young had no authority to act for the company except in his place as a member of the board of directors. Titus v. Cairo and Fulton Railroad Co., 37 N. J. Law (8 Vr.) 98; Demarest v. Spiral Tube Co., 71 N. J. Law (42 Vr.) 14. Nor did the fact that he owned a large majority of the corporate stock enable him to bind the corporation. Allemong v. Simmons, 124 Ind. 199. The testimony clearly warrants the inference that his authority extended to the making of leases of the company’s property, but it appears not to have been intended to embrace the making of leases or contracts for long terms. In one instance only, beside the present, did he give a lease for more than three years, and that was, as this is, in his own name as lessor, and the company had no notice of its duration. On several occasions, when Young wanted to make leases for long terms two of the directors (the board consisting of three, or perhaps four) declared themselves not willing that he should do so.

We therefore conclude that his actual authority was not sufficient to support the agreement.

2. The complainant Thomas knew when he took the lease that Young was not the owner of the property, and although the lease was taken in the name of his wife the evidence shows that the lease and the business carried on under it are the property of the husband. Moreover, both the complainants, in now contending for the enforcement against the company of a contract made with Young as its agent, must assume the responsibilities growing out of that contention, and must show that in dealing with him as agent they bound the company as principal. The transaction between Young as agent and the complainants was the delivery and acceptance of a lease for ten years, with the ancillary and incidental covenants. To render that transaction valid, either in law or equitjr, against Young’s principal, his authority must have been in writing, and where a written authority is required by the very nature of the transaction it is tire duty of persons dealing with tire agent to make inquiries as to the nature and extent of the authority and to examine it. Story Ag. § 78. This, of course, implies that third parties have no right to assume the existence of such authority when none is produced. It, would bo unreasonable to hold that an agent whose agency must, under a legislative rule of public policy, like the statute of frauds, be created by writing, might be dealt with as if such writing existed without any effort to ascertain its existence. Equally unreasonable would it be to' hold that an agent appearing- to have merely unwritten authority to malee leases, which under such a rule cannot, either at law or in equity, bind his principal for more than three years, may yet make a contract incidental or ancillary to a lease, which in equity will bind the principal for a longer period, in the discretion of the agent. These considerations prevent us from adjudging that the complainants had a right to assume that Young had the authority necessary to maintain their contract against the company.

3 and 4. The claims of estoppel and ratification are both barred by a single fact—that the company had no notice, either actual or constructive, that the complainants possessed, or believed they possessed, a lease for a longer term than Young’s unwritten authority entitled him to give, or that its.own rights, consistent with the proper exercise of his authority, were in anywise infringed.

The necessity for such notice as the basis of either estoppel or ratificatión is clear. Ramsden v. Dyson, L. R. 1 E. & I. App. 129, 142; Kirchner v. Miller, 39 N. J. Eq. (12 Stew.) 355; Sumner v. Seaton, 47 N. J. Eq. (2 Dick.) 103; Perkins v. Moorestown and Camden Turnpike Co., 48 N. J. Eq. (3 Dick.) 499; Central Railroad Co. v. MacCartney, 68 N. J. Law (39 Vr.) 165, 175; Story. Ag. § 289; Combs v. Scott, 12 Allen 493; Gulick v. Grover, 33 N. J. Law .(4 Vr.) 463; Titus v. Cairo and Fulton Railroad Co., 46 N. J. Law (17 Vr.) 393; Annan v. Hill U. B. Co., 59 N. J. Eq. (14 Dick.) 414, 420; Dowden v. Cryder, 55 N. J. Law (26 Vr.) 329.

It remains to consider whether the company is chargeable with notice that the complainants had, or believed they had, a lease‘for more than three years.

The company must undoubtedly be charged with notice that the complainants were in possession of the premises occupied by them and were pa3ring rent therefor to Young. But this was all consistent with the idea that they had become tenants under the authority actually vested in Young.

It should also be charged with notice of the improvements made by the complainants so far as those improvements were open to the observation of the public or of the company as possessor of the residue of the property, but it cannot be charged with notice of other improvements made upon the premises exclusively occupied by the complainants. The testimony does not indicate to what extent the complainants’ improvements were observable by the public or the company, and consequently we cannot say that the company was bound to infer therefrom that the complainants were acting upon a claim greater than the authority of Young could confer.

To this extent only was any notice given to tire company or its officers or directors (outside of Young and Shackelford), and we deem it inadequate to impose upon the company the duty of inquiring whether Young had transgressed the limits of his power-. Until such an inquiry became a duty the company was entitled to assume that its agent had acted rightfully, and its acquiescence would work neither ratification of his unauthorized act nor estoppel against repudiation of it.

Finally, it is urged that the knowledge of Young and of Shackelford should be imputed to the company.

Assuming that Young, in executing the lease, was attempting or appearing to act for the company, notwithstanding the form of the instrument, then, if his knowledge that he was overstepping the bounds of his authority is to be deemed notice thereof to his principal, no effective limitation can be imposed upon the power of an agent. By the very act of transgressing the limits of Iris authority the agent would generally, for all practical purposes, enlarge them to the full extent of his transgression. Nothing short of immediate personal investigation on the part of the principal would in most instances protect his rights. Aar examination, of the cases already cited will show that such a doctrine has no place in either legal or equitable jurisprudence.

The knowledge of Shackelford cannot be imputed to the company because he was never authorized to act as its agent in any matter to which that knowledge was pertinent. His testimony is explicit and uncontradieted that in signing the lease and collecting the rent he acted solely on behalf of Young, and. had no authority whatever from the company. Although he was secretary of the company during the runniaag of the lease and became a director in November, 1903, yet in neither capacity did any duty rest upon him concerning the complainants’ tenancy. Whether the view stated ira Sooy v. State, 41 N. J. Law (12 Vr.) 394, or that stated iaa Willard v. Denise, 50 N. J. Eq. (5 Dick.) 482, be adopted, knowledge possessed by one person cannot be ascribed to another unless there exists between them a relation of agency, in the exercise of which the knowledge would be useful.

We find no ground on which, consistently with established rules, the decree below can be supported, and it must be reversed and the bill dismissed.

For affirmance—Dill—1.

For reversal—The Chiee-Justice, Garrison, Eort, Garretson, Hendrickson, Swayze, Beed, Bogert, Vredenburgh, Vroom, Green, Gray—12.


author: Gaekisokt, J.

text:
    Margaret Parker, appellant, v. Isabella D. Copland, administratrix of Jane J. Fisher, deceased, respondent.
    [Submitted December 11th, 1905.
    Decided June 18th, 1906.]
    Where the subject of an alleged gift remains or is immediately replaced under the apparent dominion of the donor, the gift can be sustained as a donatio causa mortis only upon satisfactory proof that such continuation or restoration of the donor’s dominion was not an integral part of the donative transaction concurred in as such by the deceased party to it.
    On appeal from a decree advised by 'Vice-Chancellor Stevenson.

      Mr. William Seufert and Mr. Charles J. Foe, for the appellant.

      Mr. James A. Cordon, for the respondent.
   The opinion of the court was delivered by

Gaekisokt, J.

The question presented by this appeal is the efficiency of a gift of money causa mortis. The object of the complainant’s bill is to enforce such gift against the administratrix of Mrs. Jane J. Fisher, deceased, the alleged donor, who died on the 33d day of November, 1901. On the 19th day of November, 1901, Mrs. Fisher had upon deposit in four several savings banks sums aggregating $4,000, her vouchers for which were the ordinary pass-books issued by such institutions. These books she kept in a tin box in a closet in the bedroom in which she lay, the door of the closet being locked and the key in the bureau drawer. At least, such were the facts on the 19th day of November, 1901. On this day the complainant, who resided in New York City, was on a visit to Mrs. Fisher, who then, according to the complainant’s bill, gave her the several sums of money represented by these bank-books.

Before referring to the particulars of this occurrence of November 19th, it may be stated that on the 22d of November Mrs. Fisher became unconscious and died early on the morning of the 23d, and that up to the time when manifestly she was dying, the tin box containing the bank-books was locked up in her closet as it had been on November 19th before the occurrence of the transaction upon which the complainant relies to establish the donation to her of the moneys represented by the bank-books. The importance of the absolute identity of these indicia of Mrs. Fisher’s dominion of the bank-books resides in the fact that the point upon which the case turns is whether by the transaction of November 19th Mrs. Fisher had, in the language of Chief-Justice Beasley, in Cook v. Lum, 55 N. J. Law (26 Vr.) 373, “completely stripped herself of her dominion of the thing given.”

Bearing in mind that this is the crux of the case, the transaction to which it is to be applied was as follows: Mrs. Jane J.' Fisher, a woman advanced in years, lived in the basement of a house owned by her in Jersey City, the front room of this basement serving as her bedroom, in which, on the 19th day of November, 1901, she was practically bedfast. Her wants were attended, to by two women, who were mutual friends of Mrs. Eisher and of Mrs. Parker, the complainant. Mrs. Parker, who lived in New York City, was an older acquaintance of Mrs. Eisher, having had friendly relations with her fdr many years, and during Mrs. Fisher’s last illness Mrs. Parker visited her almost daily. On the morning of November 19th, 1901, Mrs.. Parker was upon one of these visits to her sick friend, and had been in the sick-chamber for some little time when Mrs. Fisher said to her, “Maggie, come here,” Margaret being the Christian name of the complainant. When Mrs. Parker had come to the bedside, Mrs. Fisher said to her, “Bring me my tin box.” Mrs. Parker thereupon went over to the bureau and took from one of its drawers a key, which she used to .unlock the door of the bedroom closet, from which she produced a tin box and brought it to Mrs. Fisher. Mrs. Fisher sat up in bed and opened the box, which was fastened with a hasp, and taking an envelope out of the box, handed it to Mrs. Parker, saying, “That is for you, Maggie; that is yours; those are my bank-books, and I give them to you, a free gift, for your goodness and attention a lifetime to me.” Mrs. Parker either said “Thank you,” or merely bowed her head, saying nothing, and then replaced the tin box in the closet, the door of which she locked, returning the key to the bureau drawer. This closed the transaction as far as the witnesses to it, other than Mrs. Parker, could testify. Neither of these witnesses saw the books replaced in the box before the box was restored to its place in the closet, but Mrs. Parker, when offered as a witness in her own behalf, testified that she put the bank-books back in the tin box and then put the tin box, with' the books in it, back in the closet.

From this reference to Mrs. Parker’s testimony it must not be inferred that we acquiesce in the propriety of its admission, even as to this part of the transaction. The propriety of this ruling is not, however, challenged by this appeal.

The complainant further testified that this tin box also contained at this time a deed for a cemetery lot out west that' she had brought to show Mrs. Fisher, “and a few other things,” to use the words of the witness, “that I had that .1 wanted her to 'keep for me—a few trinkets that belonged to my little girl that was dead—rings, and things like that.”

If the money that Mrs. Fisher had on deposit in the savings banks became upon her death the property of Mrs. Parker as a gift causa mortis, it was by force of the foregoing circumstances.

We accept the conclusion of the learned vice-chancellor who heard the cause that the foregoing testimony shows that Mrs. Fisher manifested “a clearly-formed donative purpose with respect to these four book accounts,” and wc also concur in the further conclusion reached by him, namely, that where the subject of an alleged gift remains or is immediately replaced under the apparent dominion of the donor, the gift can be sustained as a donatio causa mortis only upon satisfactory proof that such continuation or restoration of the donor’s dominion was not an integral part of the donative transaction concurred in as such by the deceased party to it.

The reason why this must be so is stated with accustomed, clearness by Chief-Justice Beasley, in the opinion in Cook v. Lum, already referred to. After reviewing the embarrassments incident to this class of cases when extended to constructive deliveries, the learned jurist continues: “But this was a maze not without its clue, for the cardinal principle as to what constituted a delivery that would legalize a gift was on all sides admitted and generally applied. The test was this, that the transfer was such that, in conjunction with the donative intention, it completely stripped the donor of his dominion of the thing given, whether that thing was a tangible chattel or a chose in action, and it is this absolute abnegation of power that, in a legal point of view, makes the transaction enforceable. This is the crucial test.”

It necessarily follows from this that when a donor partici- , pates or concurs in a transaction, part of which is the retention by him after the- expression of his donative purpose of every existing mdiemm of dominion over that to which such donative purpose referred, an enforceable gift has not been legally established, and this is true without regard to the clearness or cogency with which the donative purpose may have been indicated, for in the above citation it will be noted that the crucial test is not the strenuousness of the language in which the gift is couched, but in “the transfer,” which is something that is both different from the donative intention and yet capable of acting in conjunction with it, so that both are necessary to the creation of an enforceable gift. The absence of either is as fatal to the gift as if both were lacking, just as a legacy may fail either because it is not found in the will or because the will itself is not legally executed. Indeed, an impressive illustration of this distinction would be the existence of a holographic will containing the most copious expressions of a donative intention, which, even though signed by the testator, would not in the least effectuate the purpose so expressed. This illustration, which for obvious reasons must not be pushed too far, serves to emphasize the point that when two steps are required by law to complete a transaction, the excess of one cannot supply the lack of the other, a distinction not at all times regarded in the árgument of the present appeal.

Agreeing as Ave do, then, with the court below, that the presumption that arises from the continuance of the donor’s dominion over the thing he has expressed the intention to donate casts upon the donee the burden of satisfying the éourt that such dominion was apparent only and in fact formed no part of the donor’s purpose, the question that next arises is whether in the present instance the complainant has made out such a case. Here again Ave concur in the conclusion of the vice-chancellor that such a case was not established. From no circumstance in the testimony can it be reasonably inferred that Mrs. Fisher did not knoAv that the books Avere restored to their place in her box before it was returned to and locked up in the closet, or that, knoAving this, she by any word or deed rebutted the presumption of dominion implied thereby, or that she did not consider the return of the books to their place in the box as an integral part of the transaction in which she was engaged. The only avoidance of the force of these considerations is the suggestion that because the tin box contained a cemetery deed and some trinkets belonging to Mrs. Parker it was therefore as much her box as it was Mrs. Fisher’s. If this suggestion requires an argumentative answer, it is furnished by the testimony of Mrs. Parker herself that she had given these articles to Mrs. Fisher “to keep for her,” for from this it follows that the trinkets as well as the box were in Mrs. Fisher’s keeping, not that the dominion of the box had become divided or had in any way passed to Mrs. Parker. Another circumstance testified to by the complainant militates strongly against the ease she is called upon to establish, and that is her desire or at least her acquiescence in the procuring of a lawyer and the preparation of a will for Mrs. Fisher by which the complainant was to be recompensed for her friendly services to the testatrix. Standing alone, this piece of evidence might not be of controlling force, but when coupled with the fact that upon the occasion and for the purpose of this transaction the complainant produced the bankbooks and took part in a discussion in which they were treated as part of Mrs. Fisher’s estate without disclosing that Mrs. Fisher had parted with these books by an absolute gift of them to her, the irresistible conclusion is that the complainant has failed by any satisfactory testimony to overcome the presumption of continued dominion in Mrs. Fisher that inheres in the undisputed facts testified to by herself and her other witnesses. The establishment of Mrs. Parker’s claim could not, therefore, have been decreed by the court of chancery without an unwarranted relaxation of the legal rules controlling transactions of this character.

The failure of an intended benefaction, whether by gift or legacy, is one of the unavoidable inconveniences of having laws that must be observed. The present case, however, is not within this category if the gift that the court of chancery refused to enforce was not the gift that the benefactress intended to make. The intended benefaction, according to the proofs, was a gift that continued to be under the benefactor’s dominion after it had been made. Indeed, the testimony fails to indicate that Mrs. Fisher’s attention was ever for an instant directed to the making of a gift over which her former dominion should instantly and completely cease, hence the gift that was denied enforcement was not the gift that Mrs. Eisher made or intended to make. In such a case effect could not be given to the whole of the donor’s intent, even by the most lax application of legal rules, were such a course permissible. Of all legal rules, however, those that have grown up around the dpctrine of donatio coma mortis should be the least subject to relaxation. Formed, as these rules were, at a period when personal property consisted for the most part of tangible chattels or private choses in action, they have survived to do duty at a time when fortunes of unprecedented dimensions are evidenced solely by documents that fall within their operation and effect. Under such circumstances, to relax the slender safeguards thrown around these gifts by the common law is to render it possible for anyone who has access to the sick-chamber, whether as doctor, lawyer, valet, nurse or what not, to lay successful claim to an entire estate by the production of a bare preponderance of parol proof, even though the dead man’s fortune be found securely locked up in his strong box or other ■customary place of safe-keeping.

The decree advised by the vice-chancellor was the result of. the application of the appropriate rule of law to the facts established by the testimony. The decree is affirmed.

For affirmance—The Chief-Justice, Garrison, Fort, Piteey, Swayze, Reed, Vredenburgh, Green, Gray, Dill—10.

For reversal—Garretson, Hendrickson, Bogert, Vroom —4.


author: Garretson, J.

text:
    The Mayor and Common Council of the Town of Boonton, respondent, v. The United Water-Supply Company, appellant.
    [Argued November 25th, 1905.
    Decided June 18th, 1906.]
    A contract by a water company to furnish a town with water “for domestic purposes, the extinguishment of fires and other lawful uses,” and also “for public and domestic uses and purposes of the inhabitants” of the town did not authorize the corporation to furnish water for the purpose of creating any power for mechanical purposes either by the means of the creation of steam or for the propelling any water motor 'to the prejudice of the town for domestic and fire uses.
    On appeal from a decree of the court of chancery, advised by Vice-Chancellor Pitney, whose opinion is reported in- 69 N. J. Eq. 23.

      Mr. Willard W. Culler, for the appellant.

      Messrs. Yreeland, King, Wilson & ■Lindabury, for the respondent..
   The opinion of the court was delivered by

Garretson, J.

The complainant filed a bill setting forth the mailing of a contract between it and Lewis Van Dnyne and the Boonton Water Company for a supply of pure and wholesome water for domestic purposes,' the extinguishment of fires and other lawful uses.

By foreclosure proceedings the property of the Boonton Water Company became- the properly of the United Water-Supply Company, which succeeded to the rights and became bound by the terms of the contract with Boonton.

By the contract it was provided that the Boonton Water Company should supply to Boonton five hundred thousand gallons of water a day, to be increased to one million gallons a day if required for the extinguishment of fires, and also at least fifty-five fire hydrants.

The bill alleges that the water company is now selling and delivering water to the Delaware, Lackawanna and Western Railroad Company, at its station in Boonton, for the use of its locomotives and cars, and so much is so taken that a large number of tlie fire hydrants are at times made dry.

tj?he bill prays an injunction against the water company from selling, furnishing and delivering water to the Delaware, Lackawanna and Western Railroad Company’for the use cf its locomotives and cars, and that the water company be commanded to abide by and strictly perform the terms and conditions of said contract.

The decree was that the United Water-Supply Company absolutely refrain and desist from furnishing water from or out of its plant to any person or corporation for the purpose of creating any power for mechanical purposes, either by means of the creation of steam or for propelling any water motor, with leave to the complainant to apply to the court at any time thereafter to extend the restraint thereby granted so as to restrain the furnishing of water to the business of manufacture of felt hats a.s then supplied by the defendant.

The appellant seeks to reverse this decree because—

1. The appellant is not bound by all the terms of the contract and has not violated any part of the same that it was called upon to perform, but is complying with the same.

2. The appellant not only has the right to furnish water for the purpose of creating power for mechanical purposes by means of the creation of steam for propelling water motors and for the business of manufacture of felt hats, but is compelled to furnish water for these objects, and for any lawful purpose for which it may be required, within the town, limits.

3. The decree is not warranted by the pleadings, as it de1-cides questions not in controversy, and the relief granted exceeds the prayer of the hill.

4. The complainants are not injured by the acts of the appellant.

5. The decree, is contrary to the evidence and law.

To support these reasons the counsel for appellant argues, first, that the Boonton Water Company constructed a plant in accordance with the terms of its contract. I am not aware that this is disputed, but Boonton says that the water company fails to furnish such a supply of water as will accomplish what it agreed by its contract to do-; that it does not furnish sufficient water, or rather water under sufficient pressure, to- supply some of the fire hydrants so that they might he used effectively for the extinguishment of fires. We think the evidence shows conclusively that the water company is not keeping its contract in this respect.

It is also argued that the appellant is not prohibited bjr tire terms of the contract from furnishing water to- parties outside of the corporate limits. Counsel argues that certain of the covenants contained in the contract are by their terms not binding upon the United Water-Supply Company, the successor or assign ,of the Boonton Water Company, and among these is a covenant not to' furnish water to parties outside the corporate limits of Boonton as then constituted, or as it might be hereafter constituted, but inasmuch as pending the ease those places outside the town to which water was furnished became included within the corporate limits, it is not now worth while to consider the argument.

The third point is that ihe appellant not only had the right, but is obliged to furnish water to any person or corporation within the limits of the town for any lawful object.

The vice-chancellor, in his opinion, clearly points out that the use of water for mechanical or manufacturing purposes, taken in connection' with the subject-matter, cannot he derived either under the terms of the preamble of the contract, which provides for a supply of water “for domestic purposes, the extinguishment of fires and other lawful uses,” or from the covenant where the water is to be supplied “for the extinguishment of fires and other public and domestic uses and purposes of the inhabitants of the town of Boonton,” and the argument of the vice-chancellor is equally convincing that the true construction of the contract is that Boonton, in its corporate capacity, is entitled to the first lien and right of use of the supply of water for the extinguishment of fire and for the domestic uses of the inhabitants in preference to any use of any person for mere mechanical or manufacturing or other purpose.

The decree below will be affirmed.

jFor affirmance—The Chief-Justice, Garrison, Eort, Gakretson, Hendrickson, Swayze, Reed, Bogert, Vredenburgi-i, Veoom, Green, Gray, Dill—13.

For reversal—None.