author: Griffin, V. C.

text:
    Albert C. Wall, as substituted administrator, &c., in place of Arthur P. Heintze, &c., v. American Smelting and Refining Company et al.
    [Submitted February 5th, 1919.
    Decided March 4th, 1919.]
    AAhere a debt, to secure which an intestate gave a pledge, had its situs in New York, where. there is primary administration, and none of the things pledged are in New Jersey, and the pledgee may be sued in New York, the ancillary administrator in New Jersey is not entitled to the' things pledged.
    On bill, &e.

      Mr. Albert G. Wall, solicitor pro so, with whom was- Mr. Franhlin Bien (of the New York bar), for the complainant.

      Messrs. Treacij & Milton {Mr. John J. Treacy), for the American Smelting and Refining Company.

      Mr. Albert I. Drayton, for the Miners Smelting Company.

      Mr. Gilbert Gollins, appearing specialty, as amicus curice, for Mr. Fullerton, the primary administrator.
   Griffin, V. C.

This bill is filed by an ancillary administrator to impress a trust upon certain stocks, bonds and a royalty contract entered into with the Silver King Coalition Company (hereinafter called the Silver Company), pledged by the intestate to the American Smelting and Refining Company (hereinafter called the American Company), and to have it declared that he succeeded to the ownership thereof, subject to the lien of the pledgee.

E. Augustus Heintze, the pledgor, died at Saratoga Springs, New York, on November 14th, .1914, intestate, and on the 25th clay of November, 1914, his sister Mrs. Eleitman was appointed administratrix bj the surrogate of Saratoga county, New York, and duly qualified.

The American Company is a corporation of New Jersey, with authority to transact business in the State of New York, and is transacting business therein.

The stocks and bonds in question were issued by corporations created under the Jaws of states other than New York or New Jersey. These, together with the royalty agreement with the Silver Company, a corporation of Nevada, were pledged and delivered to the American Company in the city of New York to secure loans, the last pledge being made about March 10th, 1914.

The stocks, bonds and royalty agreement, since the date of the pledge (excepting certain bonds which had been for a short time in the west in a reorganization scheme), were continuously kept in the State of New York, and are still there, and, since the date of the pledge, have at no time been physically in New Jersey.

' Proceedings were taken before the surrogate of Saratoga county to remove Mrs. Eleitman as administratrix, and she was so removed by an order dated August 23d, 1916.

Edwin Gould, as a judgment creditor in upwards of $1,000,-000, initiated the proceedings about November, 1914, which resulted in her removal.

On March 16th, 1916, a petition was presented praying that the administratrix file her account. >

At this time it is quite apparent that Mrs. Eleitman was satisfied that she would be removed; thereupon, Mr. Arthur P. ITeintze, the brother of Mrs. Eleitman, procured waivers for Mrs. Eleitman as guardian of the intestate’s infant son, and as administratrix, and also that of another brother’, dated March 21st, 1916, and, on March 27th, 1916, presented them to the surrogate of Hudson county with, an application to be appointed ancillary administrator, and he was so appointed.

Mr. Arthur Heintze somewhat advised and assisted his sister in her administration affairs. He is a member of the bar of the State of New York.

In his forty-first finding of fact the surrogate of Saratoga county found that she had inventoried certain stocks and bonds which correspond to'those described in the bill, but the number in the inventory is in excess of that in the bill. This finding also states the number of stocks and bonds pledged. And in his forty-second finding he finds that she did not' account for these securities, claiming that they were the property of the Miners Smelting Company, a corporation of the State of Maine.

She did not inventory or disclose the beneficial interest in the Silver Company royalty agreement’ (finding No. 26) until after the hearing on March 1st, 1916.

On April 4th, 1916, Mr. Heintze, as administrator, filed his bill in this, court ostensibly for the purposes above stated-; whereas, it is reasonably deducible from the facts that he was endeavoiing to procure the administration of these properties in New Jersey in order to avoid the lien of the Gould judgment, to the end that the claims of the Western Development Companj’-, a corporation of Arizona (which represents his, A. P. Heintze/s, creditors, and of which he is president), and Mrs. Ruth Noyes Heintze, Ms wife, a resident of Long Island, might share with Mr. Gould in the distribution. Accordingly, in order to sustain Iris appointment as administrator, the.claims of the Western Development Company, for part of its alleged debt, were assigned to the United Copper Compaq, a corporation of New Jersey, in December, 1916, more than eight months after the hill was filed, which latter company presented its claims to Mr. Heintze, as administrator, who endorsed them “Filed, Dec. 22, 1916 ;” and the claim of Mrs. Heintze for part of her alleged debt was also in December, 1916, assigned by her to the United Copper Company, which presented its claim to Mr. Heintze, who endorsed it “Filed, Dec. 2.2, 1916.”

The Assets Development Company, a corporation of New Jersey, also presented a claim to Mr. Wall, as substituted administrator, on July 22d, 1918. Mr. Arthur P. Heintze is president of this company, and made the proof. This claim was assigned by one Calvin O. Geer, a citizen of New Jersej', who was in the employ of the intestate in his lifetime and was intimately associated with corporations in which thp Heintzes'were interested, and in a number of which he, Geer, held office. This claim consists of a stock note, dated New York, April 28th, 1909, in the sum of $10,000, payable on demand, upon which the following endorsement appears: “May 11 ’09. Rec’d from F. A. H. $6000 on 'within note — $1500 on sale of collateral.

Pay, July 11, 1918, Assets Development Co or order. C. O. Geer.-’-’

Mr. Geer also filed with Mr. Wall, on June 21st, 1918, a claim for part of his salary as employe of intestate for the month of October,-1907, $175.

The property described in the bill and the above alleged creditors are the only properties or creditors asserted by the complainant to be within the State of New Jersey.

An application was made by Mr. Fullerton (who was appointed by the surrogate of Saratoga county, New York, in the stead of Mrs. Fleitman) to the orphans court of the county of Hudson for the removal of Mr. Heintze as administrator, and the court did remove him, and appointed Mr. Wall and Mr. Fullerton as- substituted administrators in his stead. From this decree an appeal was taken to the prerogative court, which sustained the orphans court in its removal of Mr. Heintze, but vacated the appointment of Mr. Fullerton, thus continuing Mr. .Wall as sole substituted administrator.

Mr. Heintze, as administrator, took out an order to limit creditors on September 27th, 1916; and, on June 28th, 1917, a decree was entered barring creditors.

The American Company filed an answer in lieu of a plea, raising, substantial!}, three objections to the bill, viz.:

1. That the appointment of Mr. Heintze as administrator by the surrogate of Hudson county was illegal, null and void; and the orphans and prerogative courts were without jurisdiction to appoint or continue substituted administrator or administrators.

2. That the appointment was procured by fraud.

3. That there were and are no assets'or creditors of the intestate in New Jersey.

In considering objections 1 and 2, it may lie presumed that the subject-matter of these objections, in a degree, at least, was considered by the orphans court and prerogative court, by whose decrees Mr. Wall was made and continued substituted administrator. Tlie prerogative court had full jurisdiction of the subject-matter. The decree was signed by the ordinary. I should, therefore, hesitate to consider the question of jurisdiction, and, in effect, undertake to sit on appeal from such decree. It is not necessary, however, to pass upon this question, because the case may be disposed of under the third objection.

Upon the death of the intestate the title to this property vested in the primary administrator; the property was physically in the State of New York;- the pledgee, while a corporation of New Jersey, had authority to transact business in New York, and was actualh; doing business therein, and was therefore liable to be sued in the courts of that state; the debt to secure which the pledge was given had its situs in New York, and the siti of none of the things pledged are in New Jersey. Under such circumstances, it seems quite clear that the ancillary administrator is not entitled to their possession, Pisano v. Shanley, 66 N. J. Law 1 (7); Banta v. Moore, 15 N. J. Eq. 97; In re Election of Cape May, &c., Navigation Co., 51 N. J. Law 78; Merrill v. New England Insurance Co., 103 Mass. 245.

In Dietz’s Case (1886), 41 N. J. Eq. 284, where testator died a resident of New Jersey, with stocks, .bonds and the like located in New York, in the possession or under the control of two of the respondents, the orphans court, in a contest touching the validity of a will, ordered these two respondents to turn over to the administrator pendente lite, appointed by said court, the securities in their possession belonging to the testator, and to give access to the safe of the testator to the administrator, so that the contents might be taken into the administrator’s possession. The ordinary, in affirming the decree, said: “It is argued that the court had no- jurisdiction to make the order. It had jurisdiction of the subject-matter and of the parties. Speaking generally, the order was a direction (it was an authorization also) to pay and deliver over property of the estate to the person entitled by law to the custody of 'it., There is no conflict of jurisdictions. The order directed' the parties to do nothing which it was not their plain duty to do without it.”

The distinction between the Dietz Case and the present is quite apparent. In the former, the administration in New Jersey was primary; and the title to the property, although outside of this state, was vested in the administrator appointed here; and there was no conflict of jurisdiction, in this, that apjoarently there was no administrator in the city of New York. Here, however, the ancillary administration is in New Jersey, with no right to administer property unless it can be taken within this state. It is quite clear that this court could not lawfully make an order that the property mentioned in the bill be brought within the State of New Jersey to he administered (it being made to appear that there is primary administration in New York, where the assets or the evidence thereof are located) ; 3et this is substantially the only form of decree which would aid the administrator here. Any decree made by this court declaring that, as between the estate of the intestate and the Miners Smelting Company, no trust is impressed upon the stocks, bonds, &c., in favor of the estate, would have no force and effect in the State of New York where the primary administration exists and the property is plysically situated, as there is no privity between the primary and ancillary administrators. Pisano v. Shanley, supra; 11 R. C. L. § 531 note 11.

A decree will be advised dismissing the bill.


source: Caselaw Access Project

author: Foster, V. C.

license: Public Domain

text:
    Charles Steuerwald et al. v. William L. Munn et al.
    [Submitted July 19th, 1919.
    Decided July 21st, 1919.]
    Where materialmen under á subcontractor file stop-notices under P. JO. 1911 p. 821, such notices are limited to the recovery of the value of the matea'iials furnished after the act Went into effect, as it does not appear that the 'act is intended to have any retroactive effect.

      On bill, &c.

      Mr. John A. Goan, for the defendants South Amboy Lumber and Supply Company and George E. 'Applegate.

      Mr. Charles T. Oowenhoven, for the defendants Munn and Lovely.
   Foster, V. C.

This action was on a bill of interpleader, and the issue -was between materialmen on stop-notices served for debts claimed to be due from the contractor, or a subcontractor.

At the conclusion of the hearing on. March 28th, 1919, a, decree was advised by me, under which various claims were satisfied from the fund of $4,573.23 paid into court; and certain questions were reserved respecting the balance of about $986.34 still held for distribution and claimed by the defendants Munn, Lovely, South Amboy Lumber and Supply Company and Applegate.

The controversy between- them arises out of the following circumstances: In December, 1916, complainant entered into a contract with the defendant Munn for the erection of a building which was not completed until nearly a year later. By an act approved March 29th, 1917, and which took effect upon its approval (P. L. 1917 ch. 241 p. 821), section 3 of the Mechanics’ Lien law was amended to extend its provisions to debts owing to materialmen and others by subcontractors, and providing for the service of the same, stop-notices upon the owner and the payment by the owner of such debts owing by subcontractors, on the same conditions as the owner had prior to such amendment been authorized to pay. similar debts of the general contractor.

In the course of the work, Munn, the general contractor, employed one Deats as a subcontractor of the mason work, and the defendant South Amboy Lumber and Supply Company furnished Deats materials which were used in the building, to the amount of about $900, and on Deals’ refusal to pay this account, the lumber and supply company served the usual stop-notice on ibe owner on December 15th, 1917.

Prior to March 29th, 1919, the date when tire amendatory act became effective, the lumber and supply company had furnished Deats materials of the value of $415.94, and, subsequent^', it furnished him materials amounting to $395.77, the balance of its total claim.

George E. Applegate, another defendant, furnished Deats with materials amounting to $130.41, which were used in the building, and upon Deats’ failure to pay, he also- served notice on the owner on November 26th, 1917. Of the Applegate claim, materials amounting to $10.41 were furnished prior to the amendment of the act, and the balance, amounting to $29, were furnished subsequently.

The payment of the claims of the lumber and supply company and of Applegate is resisted by Munn, the general contractor, and by Lovely, another claimant against Munn, who served a stop-notice on April 18th, 1918, claiming $1,4-14.60, on which $943.17 has been paid.

The grounds of objection are, that as the lumber company and Applegate, as materialmen under the subcontractor, are permitted to resort to the fund for the payment of any part of their respective claims only by reason of the amendatory act of 1917, and that as their rights rest on that amending act, they must be limited in their recovery to the value of the materials they furnished subsequently to the date when the amendment became effective.

Prior to the passage of the amendment, neither the general contractor nor the owner was authorized or obliged to pay for materials, &c., furnished a subcontractor; and moneys due from the owner to the general contractor could not, by the service of notice under section 3 of the act,,be impounded for’that purpose; and unless it clearly appears from the language and objects of the amendatory act, that it was intended to have a retrospective as well as .prospective effect and operation, the claims of the lumber and supply company and of Applegate must be limited to the value of the materials furnished by them after the amendment became effective.

I do not find anything in the language or object» of the amendment to indicate any design that will justify giving it a retroactive effect. The words of the amendment, “who may have furnished materials,” &c., plainly refer to transactions that took place prior to the service of the notice authorized thereby, and not to transactions that occurred prior to the act becoming effective.

This conclusion is in line with a long list of cases, including Vreeland v. Bramhall, 39 N. J. Law 1; Citizens Gas Light Co. v. Alden (Court of Errors and Appeals), 44 N. J. Law 648; In re St. Michael's Church, 76 N. J. Eq. 524; and it is further warranted by the fact that to give a retroactive effect to the amendment would be to deprive Lovely, a materialman under the general- contractor (and whose stop-notice was served subsequently to those of the lumber and supply company and of Applegate), of the remedy he had under section, 3 of the act, before the passage of the amendment, as there are not sufficient funds to pay in full all the claimants, as under a retroactive effect given to the amendment the funds would be exhausted in the payment, in the order of the service of stop-notices, first by the claim of Applegate, and then by the payment of the balance on account of the claim of the lumber and supply company.

A decree will therefore be advised for the payment, first, of the balance due on the Lovely claim; secondly, for the payment of the claim of Applegate for the value of the materials furnished by him after the amendment became operative; thirdly, for the payment of the claim of the lumber and supply company for materials furnished after the date of the approval of the amendatory act, and lastly, the balance of the fund, if any, to be paid to Munn, the general contractor.


author: Lane, V. C.

text:
    Harry G. Runkle et al. v. William E. R. Smith, executor, et al.
    [Decided March 5th, 1919.]
    1. Under the Orphans Court act an allowance to an executor of three and one-half per cent, commissions is not excessive.
    2. Application to charge against the estate certain sums paid by the executor to his business partners for services rendered to the estate will not be allowed where the affidavits submitted do not show the value of the services, and such services must be considered as part of the services performed by the executor.
    3. In an estate of $2,289,000 the allowance of $35,000 to the counsel of the executor for their services in bringing and defending ten separate suits, and attending to many other matters, and of $11.000 to the counsel for the residuary legatee, who filed the bill resulting in the administration of -the estate by this court, and completed an involved litigation, is not excessive.
    4. Final allowance of commissions and counsel fees will be awarded regardless of whether certain assignees of the residuary legatee will be paid. Such assignees stand in the shoes of the residuary legatee, and have no greater rights than he has.
    5. .Where a part of the litigation connected with the administration of the estate had to do with the application of a trust fund created by the will, the income of which was to be paid to the residuary legatee and his children, such trust fund, or the income thereof, is chargeable with a proportion of the counsel fees allowed to the counsel for the residuary legatee. /
    On bill. On appli cation for allowances. *

      Mr. Franlc 8. Moore, for the complainant, pro se.

      Messrs. Church & Harrison (Mr. Church), for the executor and pro se.

      Messrs. Lindabury, Deptie & Faulks (Mr. Ashmeacl), Messrs. McCarter & English (Mr. Egner)} Messrs. Yredenburgh, Wall

      & Carey (Mr. Carey) and Mr. William A. Codding Ion, ail for holders of assignments, objecting.
   Lane, V. C.

This is an application by counsel for complainant and ¡ by the executor and his counsel for final allowances of commissions and counsel fees. There is also an application for permission to charge against the estate two items of $2,500 each paid by the executor to his partners in business, Charles P. Smith and Edward B. Archer, for services rendered to the executor in the performance of his duties. The executor has already been paid $50,000 on account and asks for $25,000 additional. Church & Harrison, solicitors for the executor, have already been paid $25,000 and ask for $10,000 additional. Prank S. Moore, counsel for complainant, has already been paid $3,500 and asks for $7,500 additional. These allowances are objected to by counsel representing the holders of assignments made by the residuary legatee, who take the position that, so far as the executor and his counsel are concerned, they have already been overpaid. IVifh respect to counsel for complainant, while they do not take the position that he is not entitled to an additional allowance, yet they object to the amount. They also object to the charge against the estate of the $5,000 asked to be charged by the executor.

Upon the making of what has been termed the final decree in this case on'August 8th, 1917, and the filing and passing of an intermediate account by the executor the allowances that are stated as having been granted were provided for. At that time the executor asked for $100,000, his counsel for $50,000 and counsel for complainant for a .sum in excess of $3,500; it has escaped my recollection what the sum actually asked for was. The allowances made were on account, whether so expressed in the decree or not. I have a distinct recollection of the circumstances, and it was after consultation with the chancellor that I made the allowances concluding that, in any event, final allowances would amount to the figures heretofore referred to. T"pon this application the entire administration of the estate is before tlie court, and allowances arc to be fixed for all of the work done, credit being given for the amounts which have been paid on account. It will be observed that the amount that the executor now! asks is $25,000 less than what he asked on the intermediate accounting; the amount that counsel now asks is $15,000 less than asked on the intermediate accounting. It is represented to the court that the executor and counsel have cut the amount asked for solely because there is not sufficient in the residuary estate to pay more and resort would have to be had to the income accruing on the trust fund hereafter referred to of Harry G-. Runkle. The action of the executor and counsel was not due to a belief on their part that what they originally asked for was excessive. I acquit the executor and counsel of any intent on their part to ask more, at any time, than what they thought they were reasonably entitled to.

The fixiüg of commissions and counsel fees is a most delicate matter and one that always gives thé court great concern. The rules which must govern the court are well settled. The Orphans Court act provides (3 Comp. Stat. p. 3860 § 129) that where the receipts of the estate exceed the sum of $50,000 (as in this case), compensation should be determined according to the actual services rendered, not exceeding five per centum on all sums which come into the hands of the executor. In Weeks v. Selby, 61 N. J. Eq. 668, the court of errors and appeals affirmed the opinion of the Essex county orphans court, written by Justice Fort .in which he said: “The question, then, simply is wlrat commissions shall be allowed the executor, in this intermediate account, for his ‘pains, trouble and risk’ in the ‘actual services rendered’ by him to the estate.” In that case there was no litigation, no difficulty in gathering the estate together; the investments were the same as those of the testator and an allowance of one per cent, on an estate of $1,197,501:57 was granted. The present chancellor, then vice-ordinaiy, in Lyon v. Bird, 79 N. J. Eq. 157 (at p. 164), said: “The allowance of commissions'on principal and on the collection and disbursement of income must be made with reference to the actual.pains, trouble and risk of those administering the estate; and commis¡¿ions on the principal where the estate, as in this, case, exceeds $50,000, must be determined, with reference to the actual services rendered, and the maximum rate should be allotved only when clearly earned — never for the mere asking.” In Rogers v. Hand, 39 N. J. Eq. 270, the ordinary (Runyon) allowed three and a half per cent, on an estate of $289,000 where the whole time occupied was one year and said: “The executors have had charge of a large amount of money; have been compelled to bring and conduct suits; have been compelled to make investigations so as to ascertain what land, exactly, the testator owned, and have had to sell land under the power given to them by the will,” &e., &e. In Metcalfe v. Colles, 43 N. J. Eq. 148, on an estate of $150,000 four per cent, was allowed where the executor’s office was not a laborious one, where he employed lawyers, brokers, agents and servants to perform most of the work which was required of him and paid them liberally and without objection from the estate, and where his individual work was, in the main, confined to a general supervision and direction of those subordinates, and to the keeping of his accounts. The ordinary (McGill) said: “Precedents in allowances of commissions to executors, however, afford but little assistance in fixing compensation. Each case must depend upon its own circumstances and be tested and controlled by the criterion intended by the statute — compensation.” In Weeks v. Selby, supra, Justice Port said: “However, the court does not consider that commissions to executors should be solely determined upon the basis of investment and reinvestment of the estate; but the question of the character of the estate, and the actual services in handling the estate by the executor, should all be carefully taken into account.” The quantum of the estate, while not determinative, must not be left out of consideration. With respect to the rules governing allowance of counsel fees I need add nothing to what I said in the case of Soper v. Bilder, 100 Atl. Rep. 858, and in Hitchcock v. American Pipe and Construction Company on application for counsel fees, not yet reported. In Soper v. Bilder I said: “In computing what is reasonable compensation, many elements must be taken into account. There is no yardstick b} which the value of legal services can be measured; no rate per diem or percentages can be employed with justice to both parties. The legal ability of the attorney, the amount of work which he does, the skill with which he does it, and, of much importance, the amount involved, and the success of his efforts."

In order to appreciate the reasons which have induced me to reach the conclusion that I have it is necessary that there should be a brief resumé of the circumstances surrounding the administration of this estate. The testator died January 31st, 19.14. There was a contest with respect to¡ the probate of his will which was not determined in the court of errors and appeals until July, 1916. From February 27th, 1914, until July 21st, 1916, the Fidelity Trust Oompány acted as administrator pendente lite under appointment of the orphans court. That company performed so much of the executor’s work as consisted in inventorying of the estate, reducing the estate to its possession, receiving and re-investing income (amounting to upwards of $200,000), paying debts amounting to $68,000; it did not convert the assets of the estate into money. It, of course, also performed valuable services during its administratorship in conserving and protecting the estate. For its services it was allowed by the orphans court, without objection from anyone, $35-000, which included its commissions and counsel fees. In July, 1916, the executor took over from the Fidelity Trust Company the assets of the estate. The principal taken over amounted to $1,954,590.92 inventoried value. Of this amount $1,850,377.57 was represented by stocks and other securities of about ninety different kinds in about seventy-five different corporations. Many of these stocks and bonds were inactive. Household goods and jewelry, paintings, &c., were also taken over at an inventoried value of $37,000, making a total inventoried value of principal of $1,976,999.93. The executor’s first account filed in July, 1917, showed a total income received of $232,493.02, of which there had been received from the Fidelity, $187,366.12. At the time of the first accounting, July, 1917, the executor had liquidated assets of the estate at a gross increase over inventory of $166,087.03. This represented the sale, among other things, in excess of, forty different kinds of securities. He had sold below the inventoried value some eighteen different kinds of securities, at a reduction of $32,787.57, showing a net increase' of $133,299.46. At the time of the first accounting, the executor had transacted ninety-one separate sales of securities and had left in his hands some twenty-six securities, notes, &c., at an inventoried value of $102,250. He had disbursed $2,025,-103.46 represented by one hundred and seven vouchers, excluding those representing interest on legacies. There was some thirty-one legacies provided for in the will which were paid by the executor. Since the filing of the account in July, 1917, the executor has continued, under the orders of this court, to liquidate the estate; he has disposed of, or turned over to the residuary legatee, the assets which were in his possession at the time he filed the first account at a figure less than the inventoried value; some of the securities were absolutely worthless. But notwithstanding this, the estate shows, under his administration, a substantial increase in liquidation value over inventory. I pause to state that the inventory was made by the Fidelity Trust Company most carefully and represented, at the time it was made the best idea as to what the actual value of the estate was. The executor, although given the authority to distribute or pay over in kind, was obliged, in the exercise of his good judgment, to liquidate. His action was due to the fact that the residuary legatee. Harry G-. Runkle, had assigned his interest in the residuary estate to between twenty-five and thirty assignees, and it was apparent that the residuary estate would not be sufficient, by a considerable amount of money, to cover the amounts secured by the assignments. In electing to liquidate he exercised good judgment and no one has objected. The liquidation of air estate of which over $1,800,000 was invested in stocks and bonds of numerous companies, many of which stocks and bonds were inactive, would be a great task in normal times. The liquidation of this estate was spread over the years 1916 and 1917 during the period of the war, and some portion of it after the United States entered into the war. The difficulty and trouble of liquidation ivas, of course, tremendously increased, and that the liquidation has been accomplished without a shrinkage in the inventory value speaks volumes for the sagacity and industry of the executor and for the wisdom of the legal advice under which he acted. The executor was a member of a New York stock brokerage house, and placed at the disposal of the estate the services of his office. Most of the stock transactions went through his office and no commissions were charged. The inheritance tax laws of various states, as also their stock tax transfer laws, had to be considered and complied with, as also the income tax law of the -United States. In this connection difficulty arose as to whether the increase in valuation of the estate' in the hands of the executor' should be considered as income or not, and the question thus raised took considerable of the time both of the executor and his counsel. The numerous assignments which had been made by the residuary legatee added difficulty to the administration of the estate. The executor has submitted affidavits attached to which is a resumé of daily services rendered which covers some thirty-eight closely typewritten pages.

In October, 1917, the bill in this case was filed by Harry G. Runkle, the residuary legatee. There were made parties the executor, the Fidelity Trust Company as holder of the trust fund of $750,000, created by the will, the income of which was to be paid Harry G. Runkle and his two children, Mary and Daniel, during their lives and then over, together also with all of those claiming, by assignment or otherwise, liens upon the residuary estate, and upon the income of the trust .funds. Originally, there were some fourteen defendants. The defendants have now increased to over thirty. The executor appeared in the suit and consented to an administration of the estate therein with the result that this court took over the administration of the estate together also with the administration of the trust fund of $750,000 held by the Fidelity Trust Company. This course was necessary in order that numerous suits might be prevented, and that a very complicated situation should be dealt with in one cause in which all parties interested might appear. From the filing of that suit down to the present time the administration of the estate has been under' the eye of the court, and I have personal knowledge of the care with which both the executor and his counsel have acted. I am convinced that the allowance which the executor asks for, to wit, $75,000 in all for his services, is not excessive and it will be allowed. This is equivalent to about three and one-fourth per cent: on the amount which the objecting assignees admit commissions should be allowed upon, to wit, $2,289,000. It is argued by the objecting assignees that the $35,000 already paid to the administrator pendente lite should be taken into consideration. The fact that the administrator pendente lite has been paid $35,000 can only be taken into consideration so far as the work done by the administrator pendente lite relieved the executor of work. In estates under $50,000, by force of the statute, an administrator pendente lite and an executor receive the same fees and there"is a double charge to the estate. The test which should be applied in allowing commissions to this executor is compensation for the actual services rendered by him, and in considering that compensation there is to be taken into account; the amount of the estate, his pains, trouble and risk. But even taking into consideration the amount heretofore allowed to the administrator pendente lite, the total) allowance for commissions is less than the statutory maximum of five per cent. I can hardly conceive of any situation where a maximum allowance would be justified if this is not one.

So far as the executor asks permission to charge against the estate the $2,500 sums paid to Archer and Smith, the application will be denied for the reason that the affidavits submitted are not sufficiently precise to warrant the court in placing any value upon their services. Whatever services Archer or Smith performed for the estate must be considered as embraced within the services performed by the executor for which the additional allowance of $25,000 will be made.

The executor was .justified in view of the situation of the estate in having the -assistance of counsel. Counsel have brought or defended some ten separate suits. They have attended to the inheritance tax matters as well as the transfer tax. Their services are enumerated in some twenty-one pages of closely typewritten matter. They have attended both in the orphans court and in this court continuously during the past two years. They have been obliged to consider questions with respect to the construction of the will as to whether the tax on the share of the legatees over should be paid by the executor out of the residuary estate or out of the trust funds. They have been obliged to consider the-income tax law and also the effect of the numerous assignments. They have heartily co-operated in the conduct of this case with the result that the estate has been distributed as expeditiously as it has, and with as little litigation. Again, since the institution of these proceedings, I have had personal knowledge of the work performed by counsel. They have kept in touch with the court as the work progressed. The pleadings on file in this cause, among others, those in which they have asked for the instructions of the court with respect to the disposal of securities, &c., will indicate, to some extent, the amount of work done. I am convinced that the amount which they ask in addition to the $25,000, to wit, $10,000, is not excessive and it will be allowed.

Counsel for complainant in the cause asks for $7,500 additional, or a total allowance of $11,000,.he having already received $3,500. I cannot speak too highly of the work performed by Mr. Moore in this case.' The situation at the time he came into it representing Harry G. Bunkle, the residuary legatee, was-most involved. He worked out the scheme of filing the bill which resulted in the administration of the estate in this court. As before stated, there were some fourteen defendants at the time the bill was filed, many of them non-residents and the number has been increased from time to time so that there are now over thirty. The fact that the litigation has been completed in one suit is no indication of the amount of work done. If the litigation had not been taken over in the manner that it was there would have been many independent suits. Complainant's counsel has kept the record in shape from the time of the institution of the suit down to the present time. The work in this case which would, in an ordinary ease, be considered routine work had to be performed by Mr. Moore personally. In view of the numerous assignments with their different provisions and the fact that the court was administering in one suit two trust funds, extreme care had to be taken in orders disbursing the residuary estate and the income that over or improper payments be not made. Counsel has been called upon, during the course of the litigation, to argue and submit briefs on five distinct propositions, some of them, indeed I may say most of them, novel. He has been some twenty-one times in court and never uselessly. The memorandum of services which he has submitted covers • some twenty-seven typewritten pages. I think that a total payment to him of $10,000, or $6,500 more than he has already received, will not be excessive and it will be allowed.

An argument was made by the objecting assignees to the effect that tlie court should give some consideration to the fact that many of these assignees, because the residuary estate is less than Harry Cf. Runkle thought it would be, will not be paid. A moment’s reflection will indicate that no consideration should be given to this fact. The assignees of Harry G. Runkle stand in the shoes of Harry G. Runkle and are entitled to no higher or greater rights. They took with their eyes open. Much of the difficulty and embarrassment under which the executor and his counsel have labored has been occasioned by the act of the residuary legatee in making the assignments that he did. Eor the trouble that he, by his act, has put the executor and his counsel to, they must be paid and he( and his assignees must bear the expense. In awarding compensation I look upon the case precisely the same as if the assignments had not been made, listening, however, to what the assignees may say because of the fact that they stand in the shoes of Harry G. Runkle. As it is the assignees have fared much better than anyone imagined they would at the start, and it now looks as if there is a fair chance that eventually all vdll be paid.

During tbe argument attention vas called also to the fact that various foes had been paid out of this estate in preceding litigation. With that T have no concern. The litigation was over the probate of the will and was not the fault of the executor or in anywise due to him and to the allowances that were made in that'litigation no objection was made. It is a fact that Messrs. Church & Harrison, who are counsel for the executor here, received in that litigation but a comparatively small amount as allowance. What I am considering on this application, and all that I am considering, is compensation -for the actual services performed by the executor and his counsel and counsel for the complainant as disclosed by the record. If an appeal is taken to the court of errors and appeals, then there must be considered as a part of the record on appeal at least a summary of the. proceedings in this cause. All of the pleadings and documents in this cause have been considered by me in reaching the conclusion that I have. It will not, of course, be necessary to print the record in full, but, in the absence of this, a summary must be prepared, satisfactory to the court, which will indicate to the court of errors and appeals somewhat the nature of the proceedings.

In the fore part of this memorandum I indicated that all counsel for the objecting assignees had insisted that the executor and his counsel had been overpaid. I find by my notes that Mr. Egner conceded that counsel for the executor was entitled to a further allowance but not the amount asked.

I might also add that all parties express their appreciation of the work done by the executor and his counsel and counsel for complainant. Ho criticism has been made upon either. The trouble, as I conceive it, is that counsel for the objecting assignees are not cognizant of the real amount of work done.

In considering the amounts asked for and allowed it must not be overlooked, as I attempted to point out in the Ilitchcoch Case, that we are passing upon the value of services performed during the years 1916, 1917 and 1918 at a time when the value of the dollar was steadily declining. I am quite convinced that on the average during the time that the services were performed a dollar was not worth to a lawyer certainly not in excess of seventy cents, so that figured upon the basis of- the value of the dollar in 1914 and preceding, the amount allowed to the executor would be approximately $52,500, while the amount allowed to counsel for the executor would be approximately $24,500, and the amount allowed to counsel for complainant would be approximately $7,000. The decrease in the value of the dollar is not a temporary thing. All indications -are thát it is permanent, ^and that the fees of lawyers and other persons engaged in the professions must be readjusted. I do not mean to intimate by this that.if I were compelled to fix the fees upon the basis of the valuation of the dollar in 1914 that I would allow any less fees than I have fixed.

An opportunity was given to counsel for the objecting parties to cross-examine the executor, his counsel and counsel for complainant. This opportunity they failed to take advantage of so that the court has been obliged to consider the affidavits, &c., filed by the applying parties without having the statements therein contained subjected to the test of cross-examination.

In view of the fact that some, portion of the litigation had to do with the application of the trust fund of $750,000 created by the will, held by the Fidelity Trust Company, the income of which is to be paid equally, during their lives, to Harry G. Runkle and his two children, Mary and Daniel, it seems to me that this trust fund, or the income thereof, should bear a proportion of the counsel fees allowed to counsel for complainant, and I will charge against the income accruing to Harry G. Runkle of the amount allowed to counsel for complainant $1,000, and against the income accruing to Mary Runkle Heiberg $500, and against the income accruing to Daniel Runkle $500, making a total charge of $2,000 against the income and $8,000 against the residuary estate. Counsel have not had an opportunity to be heard upon this last proposition, and if they desire to be heard they may move to modify the order I have signed. ■

I have signed the order passing the final accounts and fixing the fees as hereinabove set forth.


author: Lake, V. C.

text:
    Elizabeth P. Parmly, petitioner, v. J. Frank Parmly.
    [Decided March 17th, 1919.]
    1. Unjustified refusal of sexual intercourse persisted in willfully, obstinately and continuously for the period of two years is a ground for divorce for the cause of desertion; the opinion expressed by the chancellor to the contrary in Watson v. Watson, 52 N. J. Eq. 349, is overruled by Raymond v. Raymond, 79 Atl. Rep. 430.

    2. Corroboration need not necessarily be by the testimony of other witnesses to the facts. The circumstances surrounding the acts of the parties, rendering petitioner’s testimony more probable, the circumstances surrounding the case, including the manner in which the trial, if contested, is conducted, may all be considered in corroboration of petitioner's story.
    3. While a divorce cannot be granted upon the uncorroborated testimony of petitioner and defendant, there may be considered as corroboration the circumstances surrounding the case, including, among other things, the manner in which the trial is conducted. Foote v. Foote, 71 N. J. Eq. 280; Robinson v. Robinson, 90 Atl Rep. 311; affirmed, 93 Atl. Rep. 699; Rogers v. Rogers, 89 N. J. Eq. 1; Orens v. Orens, 88 N. J. Eq. 29, followed.
    On bill, &c.

      Mr. Frederic W. Smiih-, for the petitioner.

      Mr. Olio A. Stiefel, for the defendant,
   Lake, V. C.

The suit is for divorce on the ground of desertion. The charge is that the act of desertion consists in the refusal of the husband to have sexual intercourse with the wife.

The parties, were married August 2d, 1911. The husband is now forty-one; the wife thirty-eight. Immediately upon their marriage they went to live in a house which had been built by the husband in anticipation of the marriage, a bungalow in South Orange, and have continued to live there ever since. The year after the marriage a sister of petitioner, who is now I think fifteen years old, came to live with them. In the summer of 1915 a brother of petitioner came to live with them; I should imagine at that time he was about twenty-three or twent3'-four years old. He continued to live in the household for a period of twenty months. The sister had no other place to go, and an arrangement was made that the father should pay board for her. He paid board at the rate of about $5 a week, up to the time of his death, and after his death various other members of the wife’s family contributed sufficient to continue the payments. The brother, during the time he remained at the house, paid board, beginning at $7 a week and afterwards increased to $12 a week. There was no objection whatever on the part of defendant to the entry into the household of the sister and the brother, and hone of the difficulties which came into the life of the parties is attributed by either to the presence in the household of these members. The husband did not object; on the contrary, he treated the sister and the brother both as members of the family. Petitioner became pregnant about a year after' her marriage. She says that her husband suggested that she have an abortion performed and that he made the arrangements for it. He, on the contrary, says that she made the suggestion and that he acquiesced. Two years after the marriage she again became pregnant and another abortion was performed. She says that, as before, he was the person suggesting it and he states that it was she who suggested it. I find the fact to be that the abortion was not disagreeable to either of them, that neither of them at that time desired an increase in the family. His acquiescence, if such' it was, was not due to any desire to save his wife trouble or any desire to comply with her wish; it was due to his own desire not to have any children. I believe the testimony to the effect that he did not care for children in such a way as that he desired to have them of his own. There is no evidence before me from which I can find that she would not have acquiesced in any wish expressed by him and had a child. He did not do that which a husband, I think, under the circumstances, is always called upon to do, not only refrain from urging an abortion, but give the wife the benefit of his assurance at least that he will be perfectly satisfied if there are children.

After the second abortion precautions were taken in respect to sexual intercourse which continued down to June, 1915, as both parties agreed. These precautions were taken with the acquiescence of both. 'The wife did not during the interim become pregnant. I am satisfied, beyond question, from the testimony of petitioner and defendant, that in June, 1915, defendant made up Iris mind- that thereafter he would have no sexual relations with his wife. He testified on the stand, under my examination, that he definitely made up his mind at that time that he had not changed his mind, and, yesterday, when examined, said that there was not anything that could make him change his mind. To-day, recalled by his counsel, he intimates that if his wife will treat him properly, then he may change his mind, but he does not now go to the extent of saying that he will resume matrimonial intercourse. He malms, and has made, no offer.

He justifies taking the position that he did in June, 1915, by the statement that about that time the wife had, during the course of conversation, accused him, as he puts it, of having been the cause of the abortion, and he thereupon made up his mind that there would never again be cause for an abortion so far as he was concerned. He can remember none of the details of the. conversation, or what the talk was about; he does not remember the words which were used by which the wife made the accusation; simply there sticks in his memory the fact that the accusation was made. Upon being pressed, he says that the talk was about' some unkind things which she had said to him, but he does not remember what the unkind things were. He denies that the reason why she said she accused him of being the cause of the abortion was that he could not make money enough to support the family. The wife tells a consistent story of this conversation. She denies that she accused him of being the cause of ’the abortion. She says that she did say to him that she had had her last abortion. I believe the story of the wife. The statement that she had had her last abortion may have seemed to liim to be an accusation that he was the cause of the abortion. The proofs show that it was after she had made this statement that ho made up his.mind that he would have no further sexual relations with her.

Now, of course, it is impossible for me to determine what really induced the man at the time to decline to continue sexual relations, whether to protect himself from being charged with being the cause of an abortion, or whether, because she had stated that she had had her last abortion, he did not want thereafter to have sexual relations, because of fear that there might be offspring. I am unable to determine that question, and I do not think, in the view that I take of the case, that it is necessary that the real actuating cause be determined, because in either event I do not think that the husband was justified, by the remark made by the wife, in taking the position that thereafter, never again, under any circumstances, would he resume matrimonial intercourse. The charge was not- one which was repeated; it was not one which had been made before. If made at all, it was made in the heat of a. controversy in which he probably said as much about her as she said about him.

On the stand he testified that up until that time, June, 1915, there had been no serious difficulties between the parties. He said that she had said some unkind things about him, or performed some unkind acts. The only example of such unkind acts which he could remember was that one -night — one Saturday afternoon I think it was — when he came home with a headache, he found her brother and a young girl, to whom he was engaged, at the house, and that he had upbraided his- wife then for having them there without having notified him; he considered that that was an unkind thing. If all the unkind things which the wife did to him were in line with that, it hardly ueed be said that it did not constitute sufficient justification for cessation of matrimonial intercourse. The story with respect to the wife slapping at the husband with a silver knife I discount. There were no acts on the part of the wife prior to June, 1915, which justified the husband in taking the attitude which he then took. Although the social intercourse of the parties had not been great, they had not gone out to any great extent, yet they did upon occasions go out.

As to the financial relations existing between the parties: At the time of the marriage the wife was given $23 a week to-run the house and buy her clothes, and, subsequently, this was reduced to $20 a week, and for a period of seven weeks, in 1918, it was cut off entirely. The husband had been unfortunate financially. He had, and has, a desire to pay his debts, for which he is to be commended. I think, however, that possibly considerable of his trouble is due to the fact that he has put entirely too much stress on the payment of his debts and too little on the happiness of his family. He was unfortunate. There was no fault attributable to him because of his failure, and if his wife did make the statement, that he says she did, that he ought to go through bankruptcy, she was merely asking him to take advantage of a law designed for the protection of such as 'he, those who have gotten into financial difficulties through no fault of their own. It was not an unnatural thing for her to do; it would not have been an unnatural or an improper thing for him to have done. He is not to be blamed for his desire to pay his debts, but the result has been that the wife has not had, during their married life, any too much money. The charge was made against the wife that she compelled him to leave the house for a period of seven weeks, I think it was, during the time when he paid her nothing. She did, when she received no money from him, tell him that he had better eat at liis mother’s, and he acquiesced and went to his mother’s. When he did get money he came back and then left $20 on the bureau to pay the next week’s board and said he intended to eat at his own home thereafter. I find nothing in the financial relations of the parties which justified the husband in taking the attitude that he did.

After June, 1915, a change came with respect to the manner in which the husband treated the wife, and she him, in othpr than purely sexual ways. He withdrew himself from her society as much as he could; he did not take her out at all; he repelled every effort she made at display of affection. Conditions gradually became worse until, finally, in August, 1917, upon her return from the country, lie ceased talking to her at all, and has continued, although living in the same house and eating at the same table, to refrain from talking to her. The parties slept in the same bed until January, 1918, when the wife, because of the increasing disagreeable attitude of the husband toward her, was forced to leave the room of her husband. The wife has made efforts to induce the husband to resume the relationship of husband and wife. He concedes this. She has made efforts when they were in bed in the bedroom. Upon each occasion he has repelled her. She has endeavored to display affection toward him in the presence of others. The latter acts are corroborated. She has endeavored to sit on his lap and he has on each occasion rebuffed her and said that he hated to touch her and that lie wanted to have nothing further to do with her physically.

I am unable to find that the act of the husband, continually persisted in for the past three years, in ceasing sexual intercourse, was justified.

Under the law as it now is settled in this state, -refusal of matrimonial intercourse, unjustified, is a ground for divorce for the cause of desertion, although it would seem to me that, in this case, it may not be necessary to go to that length, because we have here, as we had in Rector v. Rector, 78 N. J. Eq. 386, a cessation of matrimonial relations other than the purely sexual, as, indeed, one might say we will almost necessarily find comeommitant with a cessation of the sexual relations in any case. The husband and-the wife performed toward each other no other duties than those which Vice-Chancellor Garrison said in the Rector Case might well be performed by a housekeeper or a boarder; they did not go out; there was no social intercourse, instead of being submerged in one household, as it were, or a part of one household, there were two absolutely independent human beings getting along or proceeding without the close intimacy which naturally exists between a husband and wife. It may not be necessary to go to the extent of holding for the purpose of this case that cessation of matrimonial intercourse is a erofind for divorce for the cause of desertion, but it seems to me to be clear that the case of Raymond v. Raymond, 79 Atl. Rep. 430, cited in Rector v. Rector, must be considered as authority for the latter proposition. It is attempted to distinguish the Raymond Case upon the ground that, in that case, there had been no sexual intercourse whatever, so that the marriage had not been consummated. I cannot see the distinction. The Raymond: Case might well have been brought by bill in equity to set aside the marriage on the ground of fraud — that is, the intent not to consummate the marriage might have been conclusively presumed to have been present in the mind at the time the marriage was contracted as the intent not to marry is presumed in an action for breach of promise, where there is seduction. Perry v. Orr, 35 N. J. Law 295, so, that there could be said to have been fraud in the inception of the contract. But that course was not pursued. Suit was brought for divorce for desertion. It was held that the refusal to have matrimonial intercourse for a period of two years, willful, continued and obstinate, without justification, was a cause for divorce. There can be no logical distinction drawn between that case and this case, based upon the proposition that in that case there had been no sexual relations at all and in this case there have been. The Rector Case does not go to the extent of - holding that mere cessation of sexual relations is sufficient, but the Redor Case does hold that the cessation of matrimonial intercourse is a most important feature. Mr. Justice Van Syckel, in the Raymond Case (and his opinion, so far as this issue is concerned, must be considered that of the court, for upon it the decree was signed), approves the language of Bishop^ which is to the effect that cessation of matrimonial intercourse is sufficient, is desertion and is opposed to.the Massachusetts rule, which seems to have been the rule approved by Chancellor McGill in Watson v. Watson, 52 N. J. Eq. 349. While Watson v. Watson, as Mr. Justice Van Syckel pointed out in' the Raymond Case may be distinguished, because in that case the husband had made no effort to induce his wife to have sexual relations with him, the statement of Chancellor McGill that cessation of sexual relations is not a cause of divorce, I think must be held to have been definitely overruled by Raymond v. Raymond. Under the law, as I "find it now laid down, I think the right of a married couple to sexual intercourse is'a right the total unjustified deprivation of which by one party or the other warrants a decree of divorce on the ground of desertion.

The question then arises whether the acts have been sufficiently corroborated, whether the fact of the cessation of sexual intercourse has been sufficiently corroborated to justify a decree. ■ There is no doubt in my mind whatever as to the facts in this case. There is no conceivable question but that what the husband and the wife testified to did, in fact, occur. Notwithstanding the fact that they slept in the same bed, the case is free from any suspicion or possibility of collusion. The question is whether the rule which has been held to be the law in this state that a divorce will not be granted upon the uncorroborated testimonj- of the petitioner, and the defendant, operates to prevent a decree in a case such as-this. It was said in Rogers v. Rogers, supra; Foote v. Foote, supra; Orens v. Orens, supra; Robinson v. Robinson, supra; affirmed, supra, that the corroboration-necessary need not be corroboration by witnesses, but there may be corroboration from circumstances — corroboration from what may be termed the atmosphere of the case. I find in this case that there has been such corroboration. It is true that there is not testimony (corroborated) before me that from June, 1915, until a period in 1917 there was such a marked difference between the conduct of the parties then, and the conduct of the parties preceding Juno, 1915, as to indicate standing alone a cessation of matrimonial intercourse. There is evidence, however, from the witness Gladys, and I think from others from June, 1917, down to the present time that the relationship of the parties had become so strained that, as in the Rector Case. there was nothing left of the matrimonial status except support given by the husband to the wife. Such a condition, of course, is one which probably would exist in a case of cessation of matrimonial intercourse. There are the letters which were written in September and November, 1917, to the husband in which the wife indicates clearly her desire to return to a life of husband and Avife, and indicates clearly that the non-relationship had been existing from a period in 1915 or thereabouts. He did not reply to the letters.

We have also the statement which he made in the hearing of Gladys and of the laundry woman, admitting that there had not been sexual relations for a period of over two years.

There is another atmosphere which I think may be considered, or rather there is another element which may be considered in arriving at what is the atmosphere of the case tvhich may be considered corroboration, and that is the atmosphere of the trial. The trial has been conducted in this case in such a way, and the parties have so testified and acted towards each other in the presence of the court, as have their counsel, that any idea of collusion is impossible to conceive. Taking everything into consideration, the circumstances surrounding the parties which have been testified to by witnesses, and the atmosphere of the trial, I think there is sufficient corroboration here of the fact of cessation of matrimonial intercourse from June, 1915, down to the present time and that the conduct of defendant was willful and obstinate. This Aroman, as I have before stated, endeavored to get her husband to resume matrimonial intercourse both by letter and by offers. She has gone as far, certainly, as I would hold any Avoman is obliged to go under the circumstances; and I am not uoaa' laying it down as a rule that a woman is obliged to go to any such length as she has gone.

I Avill advise a decree nisi.


text:
    Town of Kearny, a municipal corporation, v. Mayor and Council of the City of Bayonne, a municipal corporation, et al.
    [Decided May 3d, 1919.]
    1. Under article 32, chapter 152, of the laws of 1917, a municipality may, as consideration for the grant to it of a right of way for its pipe lines in another municipality agree to and actually furnish water to the owners of the tract through which the pipe line runs without the consent of the other municipality.
    2. Such a contract and such a furnishing of water is not within the provisions of section 1G of article 32 of chapter 152 of the laws of 1917, nor within the provisions of chapter 265, of the laws of 1907.
    3. Section 2 of chapter 265 of the laws of 1907 does not forbid the obtaining of water by an inhabitant of a municipality from another municipality without the consent of the first municipality. Kearny v. Jersey City, 78 N. J. Law 77, followed.
    4. A contract to furnish water to the owners of a tract through which a right of way for a pipe line is obtained in another municipality is incidental to the power to obtain the right of way and to enter into any agreements necessary for the purpose, and the furnishing of water under such a contract is not a doing of a water business within the contemplation of section 16 of article 32 of chapter 152 of the laws of 1917, nor the provisions of chapter 2G5 of the laws of 1907.
    5. Notwithstanding the fact that the supplying of water under a contract made with the municipality is not to commence until December, 1920, another municipality, whose rights, it is alleged, will be infringed by the furnishing of such water, may file a bill to obtain an adjudication in May, 1919.
    On bill, &c.

      Mr. Clyde D. 8-outer, for the complainant.

      Messrs. Collins c6 Corbin- (Mr. Collins), for the Citjf of Bayonne.

      Messrs. Lindabury, Depue & Fmlhs (Mr. Faulhs), for Federal Ship Building Company.

      Messrs. McCarter & English (Mr. English), for Blast Furnace Products Corporation.
   Lane, V. C.

The bill is filed by the Town of Kearny '(hereafter called Kearny) against the Mayor and Council of the City of Bayonne (hereafter called Bayonne), the Federal Ship Building Compand (hereafter called the Ship Company) and the Blast Furnace Products Corporation (hereafter called the Furnace Company) to restrain defendants from proceeding under contractual relations, the result of which will be the furnishing of water by Bayonne to the ship and furnace companies, both located within the territorial limits of Kearny, for a period of twenty-five years from January 1st, 1921. For several years prior to September, 1918, Bayonne had been supplied with water under a contract with the New York and New Jersey Water Company (hereafter called the Water Company); that company had acquired a private right of way through Kearny from the corner of Belleville and Kearny avenues ^.nd had laid water pipes thereon through which 'water was supplied to Bayonne. This water the Water Company obtained at the intake at the cornel’ of Bellville and Kearny avenues from the East Jersey Water Company under contract. About September, 1918, Bayonne purchased from the Water Company all of its property including, among other things, all private rights of way. Formal instruments of assignment and deeds were delivered so that Bayonne became vested with title to the operating plant of the Water Company. The Water Company has been furnishing Kearny with its water supply under a contract which terminates in December, 1920. Yarious modifications of the contract between the Water Company and Kearny have been brought to my attention. In the original contract the Water Company reserved the right to (,fqr its own account) furnish water to the Pennsylvania railroad shops and to other consumers on the meadows to whom it was bound to furnish water because of agreements entered into as consideration for the grant of rights of way. These reserved rights were given up in order that Kearny might be in a position to prosecute the writ of certiorari dealt with by the supreme court in Kearny v. Jersey City, 78 N. J. Law 77. This appears from documentary evidence including resolutions of the council of the town. The Water Company could not, of course, by such surrender affect the contract rights of its customers. By subsequent agreements the Water Company was permitted to supply customers on the meadows, including those with whom it had contracts as above mentioned, Kearny not waiving any rights after December, 1920. The net result is that the transactions between Kearny and the Water Company have no effect whatever upon the determination of this controversy. A portion of the right of way acquired by the Water Company and by it transferred to Bayonne was obtained from the Passaic Zinc Company under an agreement in which one Beall, the grantee and a predecessor in title of the Water Company, agreed for himself, his heirs and assigns with the zinc company, its successors and assigns

“that ho or they will place two six-inch branches in the water pipes to be laid as aforesaid, in such locations as the Passaic Zinc Company shall designate and that lie, the party of the second part, and his heirs and assigns, shall furnish to said Passaic Zinc Company, its successors and assigns, upon demand in writing, water from said .pipes at the minimum market rate paid by any consumer of an equal quantity of water from said pipe line, so long as said pipes shall remain upon the aforesaid property."

The pipe line now runs through property of the Ship Company, a part of the land covered by this agreement. It became necessary" immediately upon the acquisition of the plant of the Water Company by Bayonne that the plant should be increased in capacity; that a larger or new pipe line be installed. The necessities and convenience of the Ship Company required that the line be relocated. The result' was agreements between Bayonne, the Ship Company and the Furnace .Company (the owner of lands within the Beall agreement) under the terms of which, speaking generally, the pipe line is to be relocated through the lands of the ship and furnace companies and is to be made of greater capacity. As part consideration Bayonne agrees to furnish the ship and the furnace companies with water for a period of twenty-five years from December 31st, 1920. The ship company agrees to pay $350,000 toward the cost of the change and to advance an additional $150,000 to be repaid by Bayonne through the sale of water to- the ship company. The repayment, it is assumed, will take about three years, the ship company using water of the value of about $50,000 a year. Kearny questions the right of Bayonne, the ship and furnace companies to consummate the agreements upon the ground that Bayonne is without authority to furnish water to inhabitants of Kearny without the consent of Kearny, and it rests its contention upon the provisions of section 16 of article 32 of chapter 152 of the laws of 1917 and the provisions of chapter 265 of the laws of 1907.

There being no doubt but that Bayonne may furnish water to inhabitants of Kearny with the consent of Kearny, it is insisted by respondents that complainant is guilty of such laches as amounts to consent. It is said that ever since September, 1918, the contracts with the ship, and furnace companies have been a matter of public discussion and have attracted great interest and that it is incredible that the officials of Kearny should not have learned of what was proposed (the contracts were actually made in November, 1918); that no objection was made on the part of Kearny until April 17th, 1919, although the entire matter had been in progress for many months in a most open and notorious manner. The chairman of the water committee of Kearny swears that neither he, nor any member of the council, had notice of the proposition until the issue of the "Engineering News Eeeord” of April 10th,- 1919. Whether the silence o'f Kearny can be considered as acquiescence and a consent I do not determine. I prefer to base 2uy conclusion upon 2uore fundamental grounds.

It was- inti2nated in the argument that inasmuch as the sale of. water under the contracts is not to commence until December, 1920, an injunction ought 2iot to issue until after that date, Kearny having protected itself from the claim of laches by the filing of the hill. It is specifically provided by chapter 265 of the laws of 1907 that its provisions may be enforced by bill in equity to enjoin violation. This was referred to by the supreme court in Kearny v. Jersey City, supra (at p. 83). Aside now from the provisions of this act I think that Ivearny is'entitled now to an injunction to prevent Bayonne from furbishing the inhabitants of Kearny with water, although Bayonne does not intend to commence until December, 1920, if, in fact, Bayonne has no such right. Bayonne has clearly indicated what she intends doing. I think this is a case in which it is eminently . proper that the rights of the parties should be fixed at this time. The respondent Bayonne ought not to be permitted to- enter into ■ transactions involving the expenditure of the moneys of the public without a determination of its challenged rights. The extent to which the English courts have gone .in entertaining bills to declare rights is indicated by 'the article published in the New Jersey Law Journal, vol. 42, No. 4, p. 102, pamphlet April, 1919. This court-has construed its powers under the Chancery act of 1915 to declare rights liberally, Renwick v. Hay, 90 N. J. Eq. 148; Re Ungaro, 88 N. J. Eq. 25; Trenton Trust and Safe Deposit Co. v. Cook, 88 N. J. Eq. 516.

It appears to be the well established rule that power in a municipality to furnish water to its inhabitants must be rested upon direct legislation. 19 Rul. Cas. L. tit. “Municipal Corporations” § 96 (at p. 788), and that the grant of power generally to provide a water supply for the inhabitants of a municipality does not carry with it the right to. furnish water to inhabitants of other territories. Child v. City of Columbia, 87 S. C. 566; 70 S. E. Rep. 296; 34 L. R. A. (N. S.) 542; Farwell v. City of Seattle, Supreme Court Washington, 86 Pac. Rep. 217; Kearny v. Jersey City, 78 N. J. Law 77; affirmed, 79 N. J. Law 599; East Newark v. New York and New Jersey Water Supply Co., 67 N. J. Eq. 265; Baylies v. Borough of North Arlington, 80 N. J. Law 124; Rehill v. East Newark and Jersey City, 73 N. J. Law 220; affirmed, 74 N. J. Law 849.

By article 32 of chapter 152 of the laws of 1917 every municipality is given power to provide a supply of water or an additional supply of water for the public and private uses of the municipality and its inhabitants. By subdivision d of section 1 of this article every municipality is given power to purchase, condemn or otherwise acquire the necessary lands and rights or interests in lands, and water rights and rights of Ho wage or diversion, within or without such municipality, for such purpose. B\- section 14 power is given to increase the capacity of any water works, plant- or plants, to extend any system of water distribution either within or without the municipality, to lay additional mains or lateral connections, to relay or enlarge existing mains and pipes, as the governing body of the municb pality shall deem necessary. By section 30 it is made lawful for the governing body of any municipality to enter into all contracts and agreements and do any and all other acts and-things necessary to provide water for the public and private uses of such municipality and its inhabitants in accordance with the provisions of article 32. I am of the opinion that power to enter into the agreements and contracts challenged may be rested upon the provisions of article 32 heretofore referred to, and that reliance need not be placed upon the provisions of section 16 under the terms of which any municipality is given the power to supply dwellers in other municipalities through which its mains may pass with water and for that purpose to lay mains in the streets, &c., provided the consent of the 'municipality, the dwellers in which are to be supplied, be first given. A municipality, having power to enlarge its plant, to relocate its pipes, to acquire locations for such purposes, and to enter into contracts which may be necessary to carry out the purpose of supplying its inhabitants with water, may, I think, contract, as part consideration for the grant to it of rights of way for its mains, to furnish water from such mains, to the owners or occupants of the tracts through which the rights of way run. The court of appeals of New'’ York, in People ex rel. City of Rochester, v. Briggs, 50 N. Y. 553, in considering the authority of a municipality to furnish water to villages through which its main ran (at p. 563), said: “The power to supply villages with water by contract is incidental to the main purpose and may serve as the means of attaining it.” While this case involved the question of the constitutionality of the legislation under consideration, which granted to the municipality in express terms the right to supply villages, the constitutionality of the legislation being questioned on the ground that such provision was not within the title of the act, and therefore the case is not at all on all fours, with that at bar, yet the reasoning of the court is apt.

The properties of the ship and furnace companies are in the tract, the right of way over which was secured originally through the agreement between the zinc company and Beall which contained the provision obligating Beall and his heirs and assigns to furnish water to the zinc company, its successors and assigns from the mains through two six-inch branches. When Bayonne took over the plant of the Water Company including these rights of way and the contracts of the Water” Company it obligated itself to carry out the agreements of the Water Company and its predecessors in title. Omaha Water Company v. City of Omaha, 162 Fed Rep. 225; affirmed, 218 U. S. 180; 54 L. Ed. 991. The right of Bayonne to take over, the water plant, as it did, I think, must be conceded as settled. Application was añade to the supreme court by a taxpayer o£ Bayonne for a writ of certiorari to review the proceedings by which Bayonne sought to acquire the property of the Water Company. The writ was denied. Subsequent!}', the.mayor of Bayonne refused to sign the contract, whereupon application was made to the supreme court’ for a writ of mandamus to compel him to do so. The writ was granted. Subsequently, application was made to this court for an injunction to prevent the acquisition of the plant by Bayonne. The unit was denied. After the acquisition by Bayonne of the plant it found itself in this position: it was necessary to increase the capacity of the plant; to do so it was necessary to increase the capacity of the mains or to lay additional mains through the property of the Ship Company; to accomplish this purpose it was necessary to acquire additional rights of way as it found itself obligated by agreement to continue to furnish the property through which its mains ran with water through two six-inch branches. To accomplish the single purpose of increasing the capacity of its water plant, which it had the authority to do, with the least expense and the greatest advantage to itself and to carry out contract engagements entered into before there was any restrictive legislation, the contracts under attack, the purpose of which I have heretofore indicated, were entered into.

I am of the opinion that Bayonne had authority to enter into this engagement, apart now from any power under section 16 of article 32 of chapter 152 of the laws of 1917.

It is claimed by Kearny that the right of Bayonne to supply water in other municipalities is circumscribed by the provisions of the last-mentioned section and of chapter 265 of the laws of 1907. With respect to section 16 I conclude that the design was to permit municipalities to go into the business of supplying dwellers in other municipalities through which, their mains might run. In other words, to buy and sell water as a commodity. See East Newark v. New York and New Jersey Water Co., 67 N. J. Eq. 265 (at p. 270). The section provided that the municipality may lay its mains and water pipes in or under any street, &c., in such other municipality, and requires that the consent of the other municipality should be first had and obtained. I am unable to agree with counsel for respondents that the consent referred to in the section is required only in cases in which it is necessary to lay mains and pipes in streets. I think the consent is required where there is any attempt on the part of a municipality to engage in the water business in any other municipality whether it is necessary to lay pipes in the public highways or not, but I do not think that the section applies to a case such as is at bar. .Bayonne is not engaged in the business of supplying water to dwellers in another municipality in the sense contemplated by section 16. The engagement of Bayonne to supply water to these particular individuals is a part of a plan by which it has secured additional rights. It is incidental to the main purpose, and, being justified by power granted under other sections of the act, I conclude that section 16 has no application.

Chapter 265 of the laws of 1907 by its first section makes unlawful the supply of water by any person, firm or Corporation to any other person, firm or corporation by means of water pipes or conduits conveying water obtained from without the limits of any municipality operating or maintaining a public water-supply. By its second section it makes it unlawful for .any person, firm or corporation within the limits of any municipality operating, &c., a public water-supply to obtain water by means of pipes or conduits from any source outside the limits of such municipality. The first section of the act was construed by the supreme court, in Kearny v. Jersey City, supra, affirmed by the court of errors and appeals (79 N. J. Law 599), to exclude from the prohibition municipal corporations. Whatever my personal opinion may be I am bound by this construction. Section 2 is a complement of section 1, and it seems to me must be construed in the same manner. In view of the opinion of the supreme court, in Kearny v. Jersey City, with respect to section 1, it must be held that section 2 does not forbid the obtaining of water from a municipal corporation as is Bayonne.

, Eurther, I think that the statute does not 'apply to such a case as is now under discussion, where the supplying of water to individuals within the other municipality is not in the course of the carrying on of a business of supplying water, but is an incident to the obtaining of rights which the municipality supplying the water has the power to obtain.

Tinder the contract under which the Water Company obtained the right to lay the mains the owners of the property secured the right-to a supply of water from the mains through two six-inch branches. Subsequent legislation could not, I think, affect this right. While what Bayonne now proposes to do is not to supply water as contemplated by the contract, it has agreed to supply water in another method in larger quantities, and as part consideration the rights under the Beall contract are given up. There is nothing, I think, in the contention of counsel for complainant that by the contracts under attack the rights of the successors in title of the zinc company are given up. It was in consideration of the giving up of these rights that other rights were created.

The supreme court, in the Kearny fíase-, held that chapter 265 did not apply except in a case where the municipality in which the water was to be supplied was itself capable of furnishing an adequate supply and that, although Kearny had a contract under which it was entitled to an adequate supply of water from the Water Company, and had the right to use the mains and pipes of the Water Company extending to the plant of the Pennsylvania railroad shops on the meadows, in the vicinity of the plants of the ship and furnace companies, Kearny was not in a position to furnish the railroad company with an adequate supply of water, and the court sustained 'a contract made between the railroad company and Jersey City by which Jersey City agreed to furnish the railroad company with water for a period of twenty-five years. It is true that the right o £ Kearny to use the mains of the Water Company was not obtained until eight months after the contract between Jersey City and the railroad company was made. The supreme court based its determination upon the fact that Kearny did not have, at the time the contract- was made, the necessary pipe line to supply the water. .Since the determination of the supreme court Kearny has not acquired any additional pipe lines. Its contract with the Water Company expires in December, 1920, and-after that date it cannot obtain, without further contracts, water in the, manner it is now receiving it, nor can it use the pipes of the Water Company. The source of supply of Kearny is stated' to be some four and a half miles from the properties of the ship and furnace companies, and in the affidavit submitted by Kearny it is conceded that it. will be necessary to lay, in order that water may be supplied to the plants, two thousand three hundred feet of mains over land owned by private individuals. The remainder of the system must be' constructed under streets and highways in Kearny. Dp to the time of tire consummation of the contracts between Bayonne and the ship and furnace companies, no steps had been taken by Kearny to build these mains, nor had any steps 'been taken, with respect to securing a supply of water for the inhabitants of Kearny after December, 1920, other ,tban invitations to various water companies and municipalities to submit propositions. Since the argument of this case, on April 23d, Kearny has appropriated $300,000 for the construction, installation and laying of 'a main from the present system of the town for the expressed purpose of supplying an adequate supply of water to consumers on the Kearny meadows and had employed a water engineer for consulting purposes. It has also agreed to deposit with the court of chaneery such bond as may seem to the chancellor to be desirable to secure the performance by Kearny of contracts which Kearny offers to make to supply the ship and, furnace companies with water. It is insisted by Kearny that the passage of these resolutions, and the offer of Kearny to provide a bond, is proof that Kearny will be in a position after December 20th, 1920, to furnish an adequate supply of water. The contracts between Bayonne and the ship and furnace companies were executed on November 20th, 1918, and by no stretch of the imagination can it be said that at that time it appeared that Kearny would be in a position after December, 1920, to furnish an adequate supply of water to consumers on the meadows, and it seems to me that the date of the execution of the contracts is important. It was so deemed by the supreme court in Kearny v. Jersey City. What Kearny now seeks to enjoin are proceedings of Bayonne looking toward the construction of or relocation of mains, &c., -in accordance with the provisions of these contracts. But I am not at all convinced (assuming now that the proceedings of the council of Kearny are entirely regular) that it now appears that after December, 19.20, Kearny will be in a position to furnish an adequate supply of water fo consumers on the meadows. Nothing has been done except the passage of resolutions, &c. What contracts it may be able to make with water companies for a supply of water to its inhabitants is problematical. It is ■quite clear, it seems to me, that the ship and furnace companies are not required to wait until December, 1920, in order to ascertain whether they will in. fact have an adequate supply of water. It takes time to conclude the necessary negotiations to make the necessary contracts and to do the necessary construction work for the supplying of such a large quantity of water. It is not reasonable that they should be left until December, 1920, or a short time prior thereto, uncertain whether they will get a supply of water or not. I, therefore, think that chapter 265 of the laws of 1901 does not apply because it does not appear that Kearny will be in a position to furnish an adequate supply of water to consumers on the meadows after December.

Concluding, as I do, that the contracts and the -subsequent proceedings thereunder are not -ultra, vires Bavonne, and that there is no legislation prohibiting either Bayonne or the ship and furnace companies from carrying out the provisions thereof, I will advise air order denying the injunction and dissolving the restraint contained in the order to show cause.


text:
    Hugo Jaburg and Henry Jaburg, copartners, doing business under the firm name and style of Jaburg Brothers, v. Fannie Kirschenbaum, as administratrix, &c., et al.
    [Decided May 16th, 1919.]
    1. A creditor of a decedent’s estate who lias presented liis claim to the administrator has his debt fastened on his debtor’s property so that he may maintain a bill against the buyer and the estate of the vendor (the decedent) to set aside a sale alleged to have been’made in violation of the Bulk Sales act. P. L. 1915 p. 59.

    2. It appearing that, unless such a suit is maintainable, the creditor of a decedent will be deprived of all remedy under the Bulk Sales act. leave will be granted under the provisions of section 65 of the Orphans Court act (3 Comp. Stat. p. 3832), to maintain such a suit against the administrator prior to the expiration of the six months’ immunity from suit granted to the administrator under such section.
    3. Muller v. Hubschmann, 84 N. J. Eq. 30, distinguished.
    On bill, &e.

      Messrs. Bloom é Lasher, for the motion.

      Mr. Joseph Steiner, opposed.
   Lane, V. C.

The bill alleges that on January 13th, 1919, Joseph Kirschenbaum was indebted to complainants in a certain srnn for goods sold by them to him; on January 13th he sold a stock of merchandise and fixtures in bulk to Benjamin Newman; the proceedings were wholly in violation of the provisions of chapter 208 of the laws of 1915 (P. L. 1915 p. 377); Newman entered into possession of the property, and still is in possession; on February 5th Joseph, Kirschenbaum died intestate, and on March 5th Fannie Kirschenbaum applied for and was duly granted letters of administration upon his estate; complainants have presented their bill to both Newman and Fannie Kirschenbaum as administratrix, and both have refused to paj, although the administratrix has admitted that the debt is due; complainants are precluded from bringing action against Fannie Kirschenbaum as administratrix, obtaining judgment and levying execution until six months after the death of the intestate, at which time the remedy provided for by the statute for attacking the sale by Joseph Kirschenbaum to Benjamin Newman, either at law or in equity, will have expired (the time limited by. the act commonly called the Bulk Sales act, being ninety days from and after the date of the sale); Fannie Kirschenbaum is liable as administratrix to complainants and they have no'method of ascertaining whether or not she will be financially responsible when the time arrives when complainants may proceed against her at law; Benjamin Newman is financially responsible and complainants are precluded from proceeding against him at law because he did not contract the debt in question, and because their right to proceed against him at law only arises after judgment against Fannie Kirschenbaum as administratrix and execution returned unsatisfied; the prayer of the bill is that a decree may be made declaring the said sale fraudulent and void and requiring the defendants, or one of them, to pay complainants’ bill and that a receiver be appointed to operate and manage the business until the amount of the debt is raised therefrom and for an injunction prohibiting- defendant Newman from disposing of the assets of the business.

The motion to strike is made by the administratrix and the argument was confined to two points — first, that the statute precludes an action at law or in equity against the administratrix within six months after the death of her intestate where the object of the action is to obtain a money judgment against the estate, and second, that neither the Bulk Sales act uor the statute of frauds can be available to complainants until they have their debt fastened on their debtor’s property by law or by judicial process. And upon the second point reliance is placed solely upon the opinion of Vice-Chancellor Stevens in Muller v. Hubschman, 96 Atl. Rep. 189; 84 N. J. Eq. 30. The first objection may be disposed of by granting leave for the institution of the action as provided for in section 65 of the act concerning orphans court. 3 Comp. Stat. p. 3832. In view of the fact that complainants will be deprived of taking advantage of the provisions of chapter 208 of the laws of 1915 (P. L. 1915 p. 377), unless a suit of this nature "can be brought, I think that leave should be granted. It may be granted nunc pro tunc as of a date prior to the filing of the bill, or, if counsel are so advised, the bill may be refiled.

Without considering the question as to whether the objection secondly indicated — i. e., that complainants do not show that they have a lien upon the goods now in possession of Benjamin Newman, can be raised by the administratrix of the deceased debtor, I will pass upon its merits. The present case, I think, is distinguishable from Muller v. Hubschman, supra. In that case Vice-Chancellor Stevens held that before a creditor can attack a sale made in violation of the Bulk Sales act, chapter 280 of the laws of 1915, he must have his debt fastened on the property, and that a general creditor prior to obtaining by judgment, execution or otherwise, a lien upon the' property, cannot proceed by bill in this court. In that case the original debtor was living and there was nothing in the wajr of a proceeding at law against him, the obtaining of a judgment and execution thereon. He held that the mere fact that the right of attack under the Bulk Sales act was limited to ninety days was not, of itself, a ground for a different rule. The contention is made by counsel that Vice-Chancellor Stevens indicated that it was a prerequisite that the creditor should have a judgment and based that contention upon the language of the vice-chancellor (at p. 32 of 84 N. J. Eq.). The vice-chancellor did not so hold. At p. 31 he quoted the language of the court in Graham Button Co. v. Spielmann, 50 N. J. Eq. 123, which is to the effect that a creditor must have his debt fastened on the debtor’s property by law, judicial process, or some other way — quite a different proposition. I am forced to concede that this is the rule. (Haston v. Castner, 31 N. J. Eq. 697), but the tendency of the courts is to limit the application of the rule where the interests of justice require, and this tendency is evidenced by adjudications that certain conditions may fasten the debt on the debtor’s property other than judicial process. The injustice occasioned by a strict adherence to the rule is one not easily remedied by legislation, so the courts are left to work out a solution by themselves. In Currie v. Knight, 34 N. J. Eq. 485, Vice-Chancellor Van Elect held that the direction of the statute that the assets of an insolvent estate should be distributed among creditors of the decedent gives them a lien on such assets and entitles them to a standing to contest the validity of a chattel mortgage not filed according to the statute. And he based his conclusion upon Haston v. Castner. He reiterated what he said in Currie v. Knight, in Graham Button Co. v. Spielmann, 50 N. J. Eq. 120; affirmed, 50 N. J. Eq. 796; in Brockhurst v. Cox, 71 N. J. Eq. 703; affirmed, 72 N. J. Eq. 950. Vice-Chancellor Garrison held that a receiver of a partnership might, in the right of general creditors, attack a chattel mortgage. He based his conclusion upon the fact that, creditors being prevented from proceeding to judgment and execution, the receiver appointed by the court must, of necessity, represent them and their debts must, of necessity, be considered as a charge upon the assets so as to give the receiver in their right, a standing. The Orphans Court act (S Comp. Stat. p. 3832 § 65 et seq.) contains a comprehensive scheme for the pajnnent of debts of a decedent. Suits are forbidden against the representative without leave of court for a period of six months. If leave of court be given for the institution of a suit execution cannot issue upon the judgment within the six months so that, by operation of statute, the creditor is prevented from acquiring any lien upon the goods of decedent for a period of six months. The statute provides for the barring of creditors, presentation of their claims, passage upon the claims by the representative and the payment of debts. It seems to me to be clear that by force of this statute the debts of the decedent are so fastened upon the assets of the estate, even if the estate be not insolvent, as that the creditors have a standing to contest a sale in fraud of creditors under the provisions of the Bulk Sales act. Any other holding would result in denying relief in any case under the act to a creditor of a decedent. The goods, &c., alleged to have been sold in violation of the Bulk Sales act are considered, for the purpose of the suit, still a part of decedent’s estate.

The argument that this court would be obliged to determine the amount of the debt due from the estate, properly determinable in' a court of law, is not persuasive. That argument was answered by the court of errors and appeals in Haston v. Castner, 31 N. J. Eq. (at p. 701). The fact that neither the existence nor the amount of a debt has been conclusively established at law does not prevent this court acting in aid of attachment. I assume from the charges in the bill that the claim of the creditor has been properly presented to the administratrix. Ho point is made that it does not so appear. It is charged in the bill that the administratrix has admitted the correctness of the bill. If necessary there is no reason whatever why the cause in this court should not be held pending an adjudication as to the amount of the claim by the probate or law courts.

The motion to strike the bill will be denied.

I have considered all of the points argued before me.