author: Magje, Chancellor.

text:
    John C. Lavaggi, administrator, v. Pierino Borella et al.
    [Argued July, 1907.
    Decided October 24th, 1907.]
    Where a will confers upon a person the powers and imposes the duties of an executor, such person is executor according to the tenor although not named as such or named as trustee.

      On bill for the construction of the following instrument admitted to probate as the will of Fortunata Borella, by the surrogate of Hudson county:
    “I the undersigned Fortunata declare this will to leave to these heirs.
    to my son Pierino dollars two thousand........ $2000.00
    to my daughter Maria I say one thousand....... 1000.00
    to my daughter Carolina I say one thousand.... 1000.00
    to my daughter Angiolina I say one thousand.... 1000.00
    “With the above legacies I leave them my only heirs of all the estate credits and real estate that they shall be my only heirs with the obligation to bear the maintenance of the new born son of my son Vincenzo.
    “All shall be managed by the sole trustee John C. Lavaggi.
    “This I declare to be my will and I approve the above.
    “I leave to my daughter Louisa a nun $200.00.
    “I say dollars two hundred.
    “Fortunata Borella.
    “Borella Fortunata.
    “Martino Lacaschi witness 431 West.
    “Antonio Tassano,
    “28th November 1905.
    “John C. Lavaggi.”

      Mr. George McEwan, for the complainant.

      Mr. Max A. Sturm, for the defendants.
   Magje, Chancellor.

The first question presented in this case is whether the complainant has a standing to require the relief sought for in his bill, viz.: A construction of the meaning of the will of Fortunata Borella, and instruction as to the performance of his duties. This depends upon whether he occupies, in relation to the property of the deceased, a position of trust. Hoagland v. Cooper, 65 N. J. Eg. (20 Dick.) 407.

Complainant’s bill was first filed as if he were an executor appointed by the testatrix under .that will. Hpon it being ascertained by his counsel that when the will was admitted to probate the letters testamentary were issued to complainant by the surrogate, not as executor, but as administrator with the will annexed, the bill was amended and the relief is now sought in the character of administrator with the will annexed.

There are no words in the will that declare expressly that complainant was appointed executor. .Such a declaration .would clothe him with all the powers of an executor. But there may be a constructive appointment of a particular person to be executor in a will, although he is not named therein as such. Whenever the terms of the will clearly indicate that the person named is to perform' the duties of an executor, such as to pay the debts, to pay legacies, or to distribute, then that person, though not named as executor, or even though named as trustee, may be deemed to have been constructively made executor, and letters will issue to him, in the language of the books, as “executor according to the tenor.” 1 Wms. Ex. (2d Am. ed.) 196; Schoul. Ex. & Admr. 36, 37; In goods Baylis, L. R. 1 P. & D. 21; Drury v. Natick, 10 Allen 174; In goods Punchard, L. R. 2 P.& D. 369; In goods Wilkinson (1892), L. R. P. Div. 227; In goods Russell and Laird (1892), L. R. P. Div. 380.

The declaration of the testatrix (after she had indicated a clear intention to give specific legacies to four persons shown to be her children, and then a disposition of the rest of her estate) that “All shall be managed by the sole trustee John C. Lavaggi,” seems to me to compel an inference that the estate out of which these legacies are to be raised and from which the residuum is to be disposed of, is to be distributed and disposed of by Lavaggi, and if so, a further inference is necessary that any debts of the testatrix should be paid previous to distribution. Upon this inference, which I deem a fair one, Lavaggi is to pay the debts and legacies and distribute the residuum, and so to perform the duties of an executor. He is, therefore, an executor of the will “according to its tenor,” and as the position of administrator with the will annexed is substantially that of an executor according to the tenor, it seems to me, that he has a right to invoke the aid of this court in the performance of his duties as executor or administrator.

The evidence put in under a rule for proofs discloses the following facts: The personal estate of a testatrix consisted of deposits in two savings banks, amounting in all to $1,770. Testatrix was also the owner of real estate, for which she had paid, a short time before her death, the sum of $3,700. This condition of her estate must be presumed to have been in the mind of testatrix when she made this will. It must have been evident to her that tire legacies bequeathed to her four children, added to the legacy to her daughter Louisa, largely exceeded the personal property of which she was possessed. This circumstance alone will not justify the conclusion that testatrix intended that the legacies bequeathed should be charged upon the real-estate, although, without resort to the real estate, they could not be paid. But where, after legacies are given generally, the residue is given in one mass, the legacies are a charge upon the residuary real and personal estate. Corwine v. Corwine, 24 N. J. Eq. (9 C. E. Gr.) 579; Johnson v. Poulson, 32 N. J. Eq. (5 Stew.) 390; Stevens v. Flower, 46 N. J. Eq. (1 Dick.) 340; Price v. Price, 52 N. J. Eq. (7 Dick.) 326; Turner v. Gibbs, 48 N. J. Eq. (3 Dick.) 526.

While this singular will does not, in express terms, dispose of a “residue,” yet in my judgment, the testatrix makes effective an equivalent disposition, wlien, after making four legacies, in all exceeding her personal estate, she “leaves” to the four legatees “all the éstate, credits and real estate,” with the plain intention that what was -thus left was in addition to the legacies. It results that there is an implied intention to charge upon the real estate the legacies previously given.

It is next to be considered whether, as claimed by him, Lavaggi has power to make sale of the real estate left by testatrix. No express power of sale has been conferred on him by the terms of the will. Does its language indicate that such a power was intended to be conferred? If so, it must be discovered in the clause

“all [plainly intended to refer as well to the real estate previously given and the legacies which X have determined to be charged thereon, as to the personal estate], shall be managed by the sole trustee, John G. Lavaggi.”

The settled doctrine of our courts is that when a testator, in the disposition of his estate, imposes on an executor duties

to be performed which require for their performance a power of sale, the executor will take, by implication, such power as will enable him to perform those duties. Lindley v. O'Reilly, 50 N. J. Law (21 Vr.) 635; Lippincott v. Lippincott, 19 N. J. Eq. (4. C. E. Gr.) 121. As Lavaggi is to pay legacies charged on real estate he is, by implication, empowered to turn the real estate into money, which he is to combine with the personal estate not exhausted by the payment of debts, &c., and thereout pay the legacies.

Complainant further seeks instruction with respect to his conduct in case the will is construed to give him authority to sell the real estate and pay the legacies and distribute the residuum.

This instruction, it seems to me, ought to be now given, because if erroneously given, it may be corrected by appeal before any distribution which would embarrass the parties interested.

The question thus presented is a most difficult one.

The will is inartificial in its construction, and the clause

“with the above legacies I leave them my only heirs of all the real estate credits and real estate, that they shall be my only heirs with the obligation to bear the maintenance of the new born son of my son Vincenzo,”

presents a question of construction that is most embarrassing. It relates entirely to the legacies to the four children first named in the will. The subsequent clause, giving a legacy to the daughter Louisa is not affected thereby.

The first question is whether the legacies, as well as the residuum after the payment of the legacies, are charged with what the testatrix calls the “obligation to bear the maintenance of the new-born son of my son Vincenzo.”

The proofs show that Vincenzo, testatrix’s son, had previously died, and a posthumous son had been bom of his wife. Was this obligation imposed upon the legacies, or only upon the residuum after payment of the legacies?

The result I have reached is that the word “with” is not to be taken in its ordinary signification. Testatrix had previously said she would “leave” the legacies. When she follows with saying “with the above.legacies I leave them,” ,as heirs of her estate and real estate. I think that she indicated an intention to add to the legacies previously made to them, a devise and bequest of the residuum, and that it was that residuum with respect to which she declared those four children previously named were burdened with the obligation to maintain the son of Vincenzo.

Upon this construction of this perplexing clause, I think we can discover why the testatrix should have stated that Lavaggi was to be her “sole trustee.” If the obligation to maintain Vincenzo’s son is charged upon the residuum, it is obvious that a trustee .would be convenient and perhaps necessary, and, although the result of this construction will be to leave a residuum which will not provide a sufficient maintenance for that son, yet it may well be inferred that such was the intention of the testatrix, from the fact that she did not leave to him a legacy, as she did to her living children, which clearly indicated an intent that he should not stand on an equality with them.

The clause in question does not limit the time during which there is a duty to maintain Vincenzo’s son. The language used, in my judgment, prohibits the court from limiting that time. Therefore the residuum, whatever it may be, is to be used for his maintenance during the course of his life.

It would be premature to undertake to fix what the executor and trustee should appropriate for his maintenance from year to year.

The result is that a decree will be made for the construction of this will on the lines of the above opinion.


source: Caselaw Access Project

author: Mague, Chancellor.

license: Public Domain

text:
    Peter Schlicher v. The Trenton, Lakewood and Atlantic Railroad Company.
    [Decided November 7th, 1907.]
    1. Under the amendment to the General Railroad law passed March 4th, 1879 (Gen. Stat.. p. %61$ § 1/.6), the state treasurer cannot pay out the funds or any part thereof paid into the state treasury thereunder By a railway company by virtue of an assignment made by such company which afterwards becomes insolvent.
    2. The construction of such amendment by the supreme court in Will-son v. Swaim, GO N. J. Law (81 Yr.) 115, adopted and followed.

      Mr. Scott Scammell, for the Mechanics National Bank, claimant.

      Mr. Jolin M. Dickinson, receiver, pro se.

   Mague, Chancellor.

The Mechanics National Bank of Trenton presented to the receiver in this cause a claim to a fund of $12,000 now in the state treasury. Its claim is based upon an alleged assignment to it by the Trenton, Lakewood and Atlantic Railway Company, which has been declared to be insolvent. The claim was presented to the receiver appointed in the cause and he refused to allow it. His refusal has been brought before me by the counsel for the bank, the receiver appearing pro se.

The facts are admitted. The $12,000 claimed is what remains of $80,000 paid into the state treasury by the insolvent company pursuant to the provisions of placitum 46 of the supplement to the General Railroad act. 8 Gen. Stat. p. 86J/.9. Prom the $80,000 paid in $60,000 was afterward returned to the company because of an alleged abandonment of thirty miles of the proposed line, under the provisions of placitum 60, a supplement to-that act. 2 Gen. Stai. p. 2655. Afterward $8,000 was returned to the company upon the construction of four miles of the line. The remaining $12,000 stands to secure the interest of the public in the construction of the remaining six miles.

The state treasurer cannot pay out that sum or any part of it except upon proof of the completion of the road over the six miles, or over some part thereof, or of the abandonment thereof. The act requires any payment from such a fund to be made to-the company that deposited it, therefore the company cannot, endow any other person with an interest in the fund thus held.. If the state treasurer were now in a position to be required to-pay out the $12,000 the payment must be made to the receiver.

A similar question was presented to the supreme court, and their construction of the statutes in question agrees with the-view I have taken. Willson v. Swain, 60 N. J. Law (31 Vr.) 115.

If the receiver were in possession of funds of the company by which he 'could complete the road, and were permitted to do soon the ground that such completion would be of benefit to the-parties interested, the fund would be paid to him. But if by reason of inability to complete the road, the receiver shall be-obliged to sell the road, including its franchises, any company properly organized, purchasing the same and completing the-road under the acquired franchises, would be entitled to the fund, a conditional interest in which the purchasing company would have acquired with the franchises.

The refusal of the receiver to allow this claim is approved.


author: Magte, Chancellor.

text:
    Gustav W. Lembeck et al., executors, &c., v. Emma Lembeck et al.
    [Argued October 15th, 1907.
    Decided December 17th, 1907.]
    1. When estates and interests in property left by a testator are vested at his death, the postponement of possession thereof will not violate the rule against perpetuities.
    2. Upon application of executors and trustees under a will various provisions thereof are construed.
    On bill for the construction of the will of Henry Lembeck, deceased, and instruction to executors and trustees.

      Mr. Robert 8.1-Iudspeth and Mr. Benjamin C. Pascus (of the New York bar), for the complainants.

      Mr. Gilbert Collins, for the defendants.
   Magte, Chancellor.

The bill in this cause seeks the construction of the wi!1. of Henry Lembeck, deceased, who died on the th day of July, 1904. The will was dated on the 6th day of June, prior to his death. Complainants represent that various clauses and provisions of the will are obscure to such an extent that complainants, who are beneficiaries as well as trustees, and defendants, who are also beneficiaries, disagree as to their true meaning, and that it is necessary that the meaning should be declared by this court to enable the trustees to properly perform their duty.

To disclose my conclusions upon the questions presented, 1 will take them up in the order in which they are contained in the prayer of the bill.

Several of these contentions relate to the construction of the third paragraph of the will, which is in these words:

“Third. It is my will, and I do order, that unless my executors hereinafter named shall consider it advisable, they need not sell or divide my stock in the ‘Lembeck & Betz Eagle Brewing Company’ until twenty-five (25) years have elapsed after my decease. And in the meanwhile such stock shall be held by my executors, the survivors or survivor of them hereinafter named, or those appointed in pursuance of the direction of my will, and the dividends which may accrue thereon shall be divided among the same persons in the same manner and proportion and for the same purpose as my residuary estate is directed to be divided under my said will; and when sold or disposed of, all the proceeds thereof or after the twenty-five (25) years, my said stock or the proceeds thereof shall become and constitute a part of my residuary estate and be disposed of as such is directed to be disposed of under my will.”

' Counsel for complainants, anticipating that counsel for defendants would contend that this paragraph of the will was open to objection as obnoxious to the rule against perpetuities and forbidding accumulations of that nature, proceeded to argue that it was not open to that objection. Counsel for defendants made no such claim in their argument, and the suggested doubt might, perhaps, be passed sub sileniio. But as the powers conferred on executors and trustees, a construction of which is sought, depend upon the validity of the disposition by testator, it is proper to say that the paragraph in question is not, in my judgment, obnoxious to the rule against perpetuities and forbidding accumulations. While it is difficult to discover an harmonious scheme in this will, it is yet clear that whatever the testator left at his death was intended to be vested in some person then in being, or to come into being at the close of lives then in being, and that his will plainly expressed that determination. Some of the real estate is devised for life, but the remainder is either directly devised to beneficiaries in existence at the death of the testator, or whose existence is fixed by reference to his death, or to his executors in trust for similar beneficiaries. The residuary estate, including both real and personal property, is given to parties in being, and although some shares are to be held in trust for the lives of certain of the children, they pass at their death to other parties whose existence is fixed at the death of the testator.

The rule against perpetuities is a rule against postponing the vesting of estates for a period extending beyond lives in being and twenty-one years after. 22 Am. & Eng. Encycl. L. 703. The rule is directed solely against the unlawful postponement of the vesting of estates, and is not applicable to their possession or enjoyment. 22 Am. & Eng. Encycl. L. 722; Redf. Wills 846; Brandenburg v. Thorndike, 139 Mass. 102; Seaver v. Fitzgerald, 141 Mass. 401; Howe v. Morse, 174 Mass. 491.

A part of the scheme of this will, so far as any can be discovered, is to segregate the stock which testator owned in the Lembeck & Betz Eagle Brewing Company, from the rest of his estate, and to permit his executors to hold the same in trust for certain purposes, for a period not extending beyond twenty-five years. As this stock passes by the residuary devise and bequest, it is now vested in those to whom the residuary estate goes, and the retention of it by the executors as trustees, under the discretion permitted to them, for a period not exceeding twenty-five years, is a mere postponement of the possession and does not affect the vesting of the interest in that stock. Consequently, T find no difficulty in maintaining the executors’ right, as trustees, to hold this stock, and to hold it for a period of twenty-five years from testator’s death, unless their discretion is unfairly exercised.

But the question presented as to the right of the executors to exercise a discretion to retain or to convert into money this stock, cannot be answered as the executors and trustees desire. Their contention is that the true construction of this paragraph permits them, at the present time, and at any time within the limited period, to convert into money this stock at their pleasure. This is undoubtedly true, if the third paragraph of the will must be considered by itself, but this is impossible. There are oilier paragraphs that must necessarily be read in connection therewith. Thus, by the fourth paragraph, testator gives to his wife certain real estate in fee. He then makes this provision: “And also so long as she remains my widow, I give her the income of the new buildings known as the northeast corner of Ocean and Lembeck avenues, and also known as the ‘Hudson and Newburgh’ apartment houses.”

Then, by paragraph 17, he adds:

“Seventeenth. It is further my will that, in relation to the provisions herein made for my wife, should her income from the real estate known, as the Newburgh and Hudson Apartments be in anywise reduced or impaired by reason of fire or any other injury or destruction of the said land and premises or any portion of the' same, thence and in any and every such event, and whenever any such occasion shall arise, the amount of my said wife’s income thus reduced or impaired shall be made up and paid from the income and dividends accruing from all the stock of the ^Lembeck & Betz Eagle Brewing Company,’ held by my said executors in trust in my said last will and testament provided, without regard to the disposition made thereof in connection with such trust.”

Reading together all these paragraphs which relate to this subject, I think it manifest that the testator intended that the stock in question should be retained by the executors as trustees, so long as necessary to guarantee the income he designed his wife to obtain from the two apartment houses, in which she was given an interest while she remained his widow. It is possible that the testator did not sufficiently consider the effect of the seventeenth paragraph, and yet it is quite consistent with his other provisions ; for while by that paragraph' the executors, as trustees, are required to retain the stock to secure -the widow’s income so long as she remains his widow, yet he provides for the distribution of the dividends during the time the stock is thus retained. The provision for the distribution of the dividends will be effective until the occasion arises when they, or some part of them, will be required, under the terms of the seventeenth paragraph, to supplement or complete the income designed to be given to the wife. Dividends not so used -would still be divided as provided in the third paragraph. When the widow marries again, or dies, the unrestricted discretion of the executors arises, and they may sell the stock when they determine that it is advisable under the provisions of that paragraph.

Another question is presented respecting the meaning of this paragraph. It is whether the executors may sell this stock piecemeal. The executors contend that they may sell shares from time to time. The defendants contend that when the shares .are sold, they shall be sold in a block comprising the whole of the ■stock owned by testator at his death. The true meaning, in my .judgment, of the testator’s will-in this respect is,, that when the ■executors reach the conclusion that it is advisable to sell the stock, they are bound to sell the whole of it. This would not make it necessary for them to sell the whole of the stock to a •single person, or even, perhaps, to sell it at precisely the same time, but it would require them to make sale of the whole of the stock in such way as to obtain the best price for the whole.

The next question presented also arises upon the third paragraph, and is the most troublesome one of all those submitted. It has respect to the meaning attributable to the testator’s language as to the dividends accruing on the stock while held by the ■executors as trustees and not needed for the purpose specified in the seventeenth paragraph. The language to be considered is the following:

“The dividends which may accrue thereon shall be divided among the ■same persons in the same manner and proportion and for the same purpose as my residuary estate is directed to be divided under my said will.”

The residuary estate is dealt with by the eighteenth paragraph of the will. Thereby all the rest, residue and remainder of his estate, real and.personal, is devised and bequeathed to the executors in trust, for division among testator’s eight children. Then follows a designation of the mode in which the eight shares thus separated are to be divided and-pass to his children. To five of them the division is made of one share each without any limitation, the evident purpose being to vest in each child the absolute property in his or her share. One other share is to be divided to his executors (i. e., to be retained by the executors) in trust, for his daughter Katie, “to pay the income thereof to my daughter, Katie Lembeck, during the term of her natural life and on her death the same is to revert to my residuary estate.” One •other share is to be retained by the executors in trust, to pay the income thereof at their discretion, to his son, Albert B. Lembeck, and after his death the same is “bequeathed” to his child or children now living. One other share is to be retained and held in trust for testator’s son, Victor H. Lembeck, to pay the income thereof to him for life, and after his death, the share is given and devised to Victor’s brothers and sisters, including brothers and sisters of the half-blood.

The contention of the executors is that reading the third paragraph together with the eighteenth paragraph, the dividends accruing on the stock, during the periods of its retention by the executors, áre to be divided into eight shares among the eight children, in the manner and proportion provided for in the eighteenth paragraph, that is, to each one-eighth. The dispute is with respect to the intention of the testator in the use of the words “for the same purpose” in his direction of-the division of the dividends. On the part of the executors, the contention is that the purpose of the eighteenth paragraph'is to give to three of those children, Katie, Albert and Victor, no interest therein other than a life interest, and that the one-eighth of the dividends, provided for each of them by this paragraph, must be taken by the executors and held by them for the lives of the respective children who are to receive nothing therefrom during life, except the income from any investment in which such share of the dividend may be put.

The language of the third paragraph is, perhaps, capable of the construction given to it by the executors. But I am persuaded that they misconceive the intent of the testator with respect to the purpose which he had in mind when he made the provisions of that paragraph. The testator was then dealing with a block of stock, admittedly a large portion of his estate. But for the provisions of the third and eighteenth paragraphs, that stock would have been immediately sold and the proceeds put into the residuary estate and divided. If divided, the whole income of three of the eight shares, under the eighteenth paragraph, would have been paid respectively to Katie, Albert and Victor. Now, in view of the possible retention of that block of stock from the residuary disposition which would have produced this result, testator provided that the dividends accruing thereon during such retention should be divided in the same proportions, that is, into eight shares, and to the same persons, that is, to his eight children named in the eighteenth paragraph, and for the same purpose, that is, that those persons who, but for the retention of the stock from the residuum would have had an income therefrom, should have the income from the stock during the period it should be so retained. Any other construction, in my judgment, would be contrary to the plain intent of the testator.

. But this conclusion raises another question in respect to the meaning of the testator as to the payment of such dividends to the three children, Katie, Albert and Victor, which, had the executors’ construction been adopted, would not have arisen until the time to divide the residuum should have arrived.

The provision of the third paragraph is that the dividends from the stock shall be divided as the residuum is directed to be divided. The income of each of the three shares for Katie, Albert and Victor is to be paid to them by the executors “at their .discretion.” The executors contend that the shares of the dividends under paragraph 3 may be retained at their discretion from the three children named. Each of these children protests against this construction, and insists that they are entitled to the payment of the whole income of their respective shares. In my judgment, the executors adopted a wrong construction and gave a force to the words permitting them to use discretion which is unwarranted. All the parties are of full age. There is nothing to indicate that the discretionary power conferred upon the executors was to be exercised upon a judgment respecting the conduct or demeanor of the parties. It does not provide that the payment should be made if the executors are satisfied of good conduct, or of continuance of good habits or anything upon which a judgment could be founded. On the construction of the executors, the testator has conferred upon them a power to exercise a discretion to withhold the income, in whole or in part, from their brothers and sister without any reason for such deprivation.

To my mind it is inconceivable that the testator intended to confer upon these executors that sort of power, for they are directly interested in the residuary estate and in the bequest over, in the case of Victor, to Victor’s brothers and sisters. The testator could never have intended to give to persons thus interested the power to determine capriciously, and without ground, whether or not the income should be paid. In my judgment the words “at their discretion” refer to the times and manner of payment. With that discretion no one can interfere, except it be exercised unfairly. But subject to that discretion, the whole shares of the dividends are to be paid to the three children especially interested in this discussion. Such payment must be made within a reasonable time after the dividends are received by the executors and trustees. Oram v. Peirce, decided in June Term, 1907, court of errors and appeals.

Another question is presented, arising upon the provisions of the eighth paragraph of this will, whereby testator devised to his executors, in trust for his son Albert, certain real estate and the “real estate mortgage of $1,500 made to me by my son on lot 10-B in the same block * * * to pay the income at their discretion from time to time to my son Albert during the term of his natural life.” Then follows a devise over of “said lands and buildings” to Albert’s child or children now living. At the end of the same paragraph occurs the following: “Having advanced to my son, Albert B. Lembeck, moneys amounting to the sum of $21,000, it is my will, and I hereby direct, that he shall not be charged with any part thereof.” By the sixth paragraph, testator devised to his daughter Katie several lots of land, including lot 10-B on block 1421. The language of paragraph 8 may, perhaps, be read as a gift of a mortgage on lot 10-B in block 1415, but as it is conceded that testator owned no such mortgage on lot 10-B in block 1415, it is, in my judgment, clear that the mortgage of $1,500 is a mortgage upon lot 10-B in block 1421, devised by the sixth paragraph to his daughter Katie. Testator at his death did not own lot 10-B in block 1421. He had owned it and had conveyed it to his son Albert, and afterward took from him the mortgage in question. Albert had thereafter conveyed it to his sister Katie, subject to the mortgage. So far as appears in this case, she did not covenant to assume and discharge the mortgage as a consideration for the conveyance to her of the lot on which it was a lien.

The singular condition is that testator devised to Katie a lot he did not own. At the same time he bequeathed a mortgage on that lot to his executors in trust for his son Albert for life, and in the same paragraph recited that he had advanced to Albert a very much larger amount and discharged him entirely from the payment thereof.

It is not easy to define the meaning of the testator in these contradictory provisions. By the doctrine applied by Vice-Chancellor Van Fleet in Marshall’s Exrs. v. Hadley, 50 N. J. Eq. (5 Dick.) 547, the devise to testator’s daughter of a lot in which he had only the interest of a mortgagee would not pass the mortgage. If the devise, standing alone, could be construed to show an intent to discharge the land from the mortgage, that construction cannot be given to it, because of the subsequent contradictory and irreconcilable clause whereby that mortgage was bequeathed to his executors in trust for Albert, with a clear intent that it should be one of the sources from which the executors should receive income which was to be paid to Albert.

It remains to be considered what is the effect upon the bequest of this mortgage to his executors in trust for Albert, resulting from the subsequent clause of the same paragraph discharging Albert from liability for moneys advanced to him by testator. It is conceded, both by the bill and the answer of Albert, that the mortgage in question was made by Albert to testator to secure the repayment of such advances. The debts arising from such advances being wholly discharged at the death of testator, it results that the bequest of the mortgage which secured it passed to the executors no right or interest which was enforceable upon the land mortgaged.

Another question is presented respecting the meaning of the fourteenth paragraph, which reads as follows:

“Fourteenth. I hereby authorize and empower my executors hereinafter named, the survivors or survivor of them, in their discretion, to sell and convey and convert into money any and all of my real estate, not herein specifically devised, in fee-simple, except that devised to my beloved wife, Emma Lembeck, during her widowhood, no part of which shall be sold, except without her consent, and to be evidenced by her joining in the deed, and if any part thereof shall be sold the proceeds shall be held in trust by my executors, the income thereof to be paid to my said wife during her widowhood.”

The executors seek to have determined upon what parts of the real estate of testator the authority to sell, conferred by this paragraph, has effect. The construction they attribute to it makes it apply to all testator’s real estate not specifically devised in fee-simple, and particularly to lands devised in one way or another for the life use of testator’s children, Katie, Albert and Victor. By the fourth paragraph testator had given to his wife the income of certain buildings for so long as she should remain his widow. He had not specifically devised to her any interest in the lands on which the buildings stood otherwise than by the implication arising from the gift of the income. He had not specifically devised those lands in fee-simple to anybody. Yet by the clause immediately following he clearly indicates that those lands had been devised to his wife during widowhood, and he provided that a sale of her interest might be made with her consent, and her income was thereafter to come from the proceeds of the sale.- In my judgment the words “in fee-simple,” as used in this paragraph, are not intended to limit the previous phrase descriptive of real estate as “specifically devised” (from which phrase '.they are separated by a comma), but rather to describe the nature of the estate which the executors could transmit by sale. Conceiving that he had devised to his wife a life interest in certain lands by the gift of the income therefrom, testator proceeds to direct that the lands should not be sold without her consent, and that she should join in the sale and conveyance, and thereafter have the income arising from the proceeds of sale. But by other provisions of the will testator had devised estates for life. Such devises had been made to his executors, as trustees, for the benefit of Albert and Victor for life, and the remainders in each case had been devised. But there was a devise to Katie specifically for life, and there was no devise of the remainder except the residuary devise. If the construction of the executors should be adopted the life estate of Katie could be destroyed, and it would be at least doubtful whether there could be inferred to remain in her any right for life in the proceeds raised by the executors’ sale, in the absence of any direction to that effect, especially as in the same paragraph testator had given direction that if sale of the land in which his wife had an interest should be made, she should have an equivalent interest in the proceeds of the sale. It results, I think, that the power of sale conveyed by the paragraph is a power to sell the remainders in the lands devised for life.

A further question is presented by the provisions of the fifteenth paragraph, which read as follows:

“Fifteenth. I direct that my unimproved real estate be sold within two years after my decease. Should any of my children desire to purchase any of such unimproved real estate, my executors may convey the same to them at a valuation to be proved by my executors, the survivors or survivor of them, in charge of the purchase price against the share of the child so purchasing.”

What is “unimproved” real estate cannot be defined so as to be more explicit for the guidance of the executors. What may fall under that description can only be determined upon the facts of any particular case. In the absence of facts the question propounded admits of no instructions to the executors.

Another question has been presented by an amendment to the bill. It relates to the construction of the eighteenth paragraph of the will, whereby one of the eight shares into which the residuum is divided is given, after the death of Victor, to the brothers and sisters of Victor, including those of the half-blood, “in equal shares, the issue of any of them who may die leaving issue them surviving, to take the parent’s share per stirpes."

It is conceded that, prior to the death of testator, one of Victor’s brothers, viz., Henry T. Lembeck, died leaving two children him surviving, and the question is whether, in the division of the share set apart for the use of Victor during his life, the children of Henry will be entitled to one part.

In my judgment this question is prematurely asked. When the estate is ready to be divided parties not now in being may have an interest in it, and no opinion on it should be expressed.

A decree will be made in conformity with this opinion.


author: Emery, V. C.

text:
    John Leonard v. Charles Bosch.
    [Decided October 25th, 1907.]
    1. Certificates of deposit, delivered in execution of a provision in a charter party for a deposit in guaranty of insurance, which declare the object of the deposit to be “to indemnify you in case of loss of the cargo,” &c., constitute an agreement to indemnify against the loss of the cargo, and not an agreement of insurance, and such loss would he the value of the cargo at its destination less the cost of delivery there, and, where this amount is greater than the fund on deposit, the entire fund is applicable to the indemnity.
    2. On an open policy of marine, insurance on a cargo, the recovery in case of total loss is the value of the cargo at the place of shipment, and does not include a loss of profits.
    3. On a valued policy of marine insurance on a cargo, the recovery in case of total loss is the whole amount of the agreed value.
    4. A provision of a charter party for a deposit in guaranty of insurance not having restricted insurance by the shippers to an open policy, must be construed as entitling them to the benefit of any insurance, open or valued, which might have been taken out, up to the amount of the deposit, and, when it is clear that the parties intended a policy for an amount greater than the fund on deposit, the entire fund is applicable to the indemnity.
    On settlement of decree.

      Messrs. McCarter & English, for the complainant.

      Mr. Thomas E. French, Mr. Ralph W. E. Donges and Mr. Howard M. Cooper, for the defendants.
   Emery, V. C.

The extent to which the deposit is made liable for loss is fixed by the certificates of deposit signed by the cashier of the bant. These certificates, as I concluded, were delivered as the execution of the clause in the charter party relating to the deposit in guaranty of insurance, and the rights of the complainants to the benefit of the fund depend upon the proper construction of these certificates. The clause in the certificates declaring the object of the deposit is, that it is to be held “to indemnify you (the owners) in case of loss of the cargo,” &c. I construe this to be an agreement to indemnify against loss of the cargo, and not an agreement of insurance. The loss of the owners on the cargo would be the value of the cargo at Philadelphia, less the cost of delivery at Philadelphia. This cost would include freight unpaid, the cost of insurance, and also, I think, the duty payable on the arrival at that port. The value at Philadelphia, as fixed by the evidence, was about $39,000, and the above charges or deductions do not exceed $11,000, so that the entire fund on deposit is applicable to the indemnity.

Treating the terms of deposit as controlled, not by the terms of the certificates, but by the terms of the charter party, which required a deposit “in guaranty of insurance,” defendants contend that if the fund is applicable at all before the recovery of a judgment in an action for breach of this contract, the extent to which it may be applied is controlled by the amount of recovery on an open policy of insurance, i. e., one where the value of the property insured is not agreed on or liquidated. Such recovery on an open policy is the value of cargo at the place of shipment, and does not include loss of profits. But, if the policy of insurance was a valued policy for $25,800, then the recovery would be for the whole amount, as the agreed value of the property for the purposes of insurance. Beach Ins. §§ 484, 485; 19 Am. & Eng. Encycl. L. (2d ed.) 1018; Irving v. Manning, 1 H. L. Cas. 287; Phoenix Insurance Co. v. McLoon, 100 Mass. 475. It was optional with the shippers, under the charter party, to take out a valued policy to the extent of the value given to the owners of the vessel on the loading, and it is clear from the negotiations between the parties, that it was intended that it should be taken out for this amount, and the charges on insurance for this amount be paid. The charter party, therefore, not having restricted the insurance by the shippers to an open policy, must be construed as entitling them to the benefit of any insurance, open or valued, which might have been taken out, up to the amount of the deposit, and the fund; if treated as held strictly for insurance, must be held to secure the loss on such a policy. On this basis the same result is reached; and the entire fund is applicable.

I will advise a decree for payment of the entire amount on deposit to the complainants.


author: Embry, V. C.

text:
    John B. Ball et al. v. Sidney S. Ward et al.
    [Decided November 6th, 1907.]
    1. Where further parties are necessary the. proper order or decree is generally that the cause stand over for the purpose of bringing in the parties, and not that the bill be dismissed in the first instance.
    2. Where, pending an action to set aside a deed for duress, one of the defendants dies testate, leaving all his property, including the land in controversy, to his executors on certain specific trusts, and, on petition, orders are made that the suit stand revived against the trustees and devisees, if the executors are necessary parties, the formal order should be that the cause stand over to make the executors parties, and not to discharge the orders of revivor.
    3. The fact that, by the will of a deceased defendant, the executors, eo nomine, are trustees and devisees, does not make them parties in their capacity as executors, if they are expressly made parties only as trustees and devisees and because of being such devisees.
    4. Where, pending an action to set aside a deed for duress, one of the defendants died testate, leaving his property to executors on certain specified trusts, the executors are necessary parties to the action, since they have an interest conferred on them by statute relating to the sale of lands to pay debts.
    5. Under the established practice, independent of statute, the formal proceeding to continue a suit against the executors of a deceased defendant should be by a bill in the nature of a bill of revivor, and not by a bill of revivor, since, under the old practice, the bill of revivor was applicable only when the title of the decedent devolved upon his representatives by operation of law, and not by act of the decedent.

      6. Though the statute of abatement (Gen. Stat. p. g § 5) provides for the revival by order of suits in chancery against the representatives, &c., of a deceased defendant when there are two or more defendants, and that in such case no bill of revivor shall be necessary, this section seems applicable only to the strict case of a bill of revivor, and not to one where a supplemental bill is necessary, but chancery rule 210, adopted in 1883, is broad enough to include both classes, and provides for such revival by order where a suit becomes defective by reason of change or transmission of interest or liability, which order, when served upon the parties who would under the existing practice be defendants to a bill of revivor or supplemental bill, will be binding as if obtained under existing practice.
    7. Chancery rule 210, adopted in 1883, providing for application to the chancellor to discharge an order of revivor, must be held, since it does not limit or define the grounds for such an application, to authorize it on any ground which would be a reason for objecting to a decree of revivor if a bill had been filed.
    On motion to discharge orders of revivor.

      Mr. Alfred F. Skinner, for the motion.

      Messrs. Hiker & Hiker, contra.

   Embry, V. C.

By stipulation of counsel filed at the hearing of the motion, the substantial question argued and to be decided is whether the executors of Sydney S. Ward, the defendant, who has died pending suit, are necessary parties to the suit, so that the suit could not proceed to decree in their absence. The bill was filed to set aside a deed made by complainants to the deceased upon the ground of duress, the duress alleged being threats of arrest and prosecution of the complainant’s son for obtaining money on false pretences from Ward, and which money was due from the son to Ward. Whether the conveyance was made in payment or part payment of the son’s debt, or as security therefor, does not appear on the face of the bill. The answer of Ward and his wife denies the alleged duress and avers a voluntary conveyance. The answer also fails to set up clearly or expressly whether the conveyance was by way of payment or security. Ward died on August 23d, 1906, after filing the answer, and on October 22d, 1906, a petition was filed setting up his death, leaving a will admitted to probate October 1st, 1906, by which, after directing his debts to be paid, the testator gave, devised and bequeathed all the residue of his estate (including the land conveyed by the deed in question) to his executors, upon certain trusts specified, and empowered his executors and trustees to sell his real estate. His wife and two other persons, Everett Courtright and Elwood C. Harris, were appointed executors with provision for substitution of testator’s daughter, Nellie W. Ball, in place of his wife as executrix and trustee on the death or remarriage of his wife. On October 23d an ex parte order was made on this petition directing that the suit stand revived and continued against Mrs. Ward individually, and against Messrs. Ward, Courtright and Harris, devisees and trustees under the will, and Nellie Ward Ball (who was a beneficiary under the trusts), as defendants. Mrs. Ward afterwards died, and Mrs, Ball qualified as executrix in her place, and on March 7th, 1907, a petition was filed for the revival of the suit against the devisees and trustees of Ward, on which ex parte order was made directing that Nellie Ward Ball, one of the devisees and trustees, be made defendant, and that the suit stand revived and continued in the name of Nellie Ward Ball, individually, and Nellie Ward Ball, Courtright and Harris, trustees and devisees under the will. The trustees are not made parties as executors, and the complainants do not desire or intend to make them parties in that capacity. The motion is made to discharge the orders for revivor on the ground that the executors as such are necessary parties to the suit as revived, and that the suit cannot proceed to decree unless they be made parties. By stipulation filed on the hearing, this substantial question was argued and is to be decided, the court to be at liberty to direct such formal pleadings as may be necessary.

Where further parties are necessary the proper order or decree is generally not that the bill be dismissed in the first instance, but that the cause stand over for the purpose of bringing in the parties. If the necessary parties are not brought in the bill, of course, may be dismissed, and if the executors here are necessary parties, the formal order should not be to discharge the orders of revivor, but that the cause stand over for the purpose of making the executors parties. The fact that by the will the executors, eo nomine, are trustees and devisees, does not make them parties in their capacity as executors, if they are expressly made parties only as trustees and devisees, and because of being such devisees. And if as executors they are necessary parties, they must, under these circumstances, be made such in that capacity in order to be parties as executors and bound in that capacity by the final decree of the suit.

Our decisions seem to establish the general rule that on the death of any owner or holder of the title to lands against whom suit has been brought for the purpose of divesting the title, wholly or in part, in favor of the complainant, the personal representatives of the decedent, his executors or administrators, are necessary parties as having an interest in the lands conferred on them as such by our statutes relating to the sale of lands to pay debts. This rule was declared and the right put on that ground (in connection with others) in the case of a bill by vendee against a vendor for specific performance. Downing v. Risley, 15 N. J. Eq. (2 McCart.) 93, 95 (Chancellor Green, 1862). This decision has since been followed and approved in this class of cases for the same reason, and while there are other and additional reasons for making the personal representatives parties in such suits, the settled recognition of the necessity of making them parties because of their statutory interest or estate in the lands for the payment of' debts, makes the decisions binding authorities upon the necessity, wherever the statutory interest exists. The same rule was applied, and for the same reason, by Vice-Chancellor Van Fleet in a suit for partition where, over the objection of complainant, it was ordered that an administrator be made party defendant on the death of his intestate pending the suit. Owen v. Hixon, 9 N. J. L. J. 304. (1884). In the absence of any circumstances appearing on the record removing the case from the control of the general rule, and following the reasoning of these decisions, I must hold that the executors as such are necessary parties.

As to the form of making them parties my view is that under the established practice, independent of statute, the formal proceeding to continue the suit should be by a bill in the nature of a bill of revivor, and not by a bill of revivor. Tbe reason is that under the old practice the bill of -revivor was applicable only where the title or interest of the decedent devolved upon his representatives (heirs or personal representatives), by operation of law, and not by the act or deed of the decedent. In Slack v. Walcott, 3 Mason 508 (1823), Mr. Justice Story shows the correctness of this distinction, with its reasons from the authorities, which are examined at length.

The statute of abatements, section 5 (-Gen. Stat. p. 2), provides for the revival by order of suits in chancery where there are two or more defendants, and upon the death of any defendant “against the representatives of the deceased party ór any other who may become interested by the death of such party,” and that in such case no bill of revivor shall be necessary. This section would seem to be applicable only to the strict case of a bill of revivor, and not to extend to the case where a supplemental bill in the nature of a bill of revivor was necessary under the old practice. Ross v. Hatfields, 2 N. J. Eq. (1 Gr. Ch.) 363 (Chancellor Pennington, 1840). But chancery rule 210, adopted by Chancellor Bunyon in 1883, is broad enough to include both classes, and provides for such revival by order of a suit becoming defective “by reason of some change or transmission of interest or liability,” which order of revivor, when served upon the parties who would, according to the existing practice, be defendants to a bill of revivor or supplemental bill, will be binding as if obtained under existing practice. Provision is, however, made for applying to the chancellor to discharge the order, and in view of the fact that the order when served has, under the rule, the same effect as if obtained on a bill of revivor or supplemental bill, it would seem that on a motion to discharge the order the defendant brought in might avail himself of any objection to the order which appears upon the record and would, under the previous practice, have entitled him to object to a decree of revivor. The want of necessary parties is an objection of this character. Under the English act (see 2 Dan. Gh. Pr. (6th ed.) 1510, note 1), from which our rule 210 is substantially taken, it is expressly provided by the act itself that the motion for discharge of the order may be made “on anjr ground which would have been open to him on a bill of revivor or supplemental bill stating the previous proceedings and the change or transmission of interest and praying the usual relief.” The rule not restricting or defining the grounds must be held to include reasons for objecting to a decree of revivor if a bill had been filed. As the record stands I will deny the motion to discharge the orders of revivor, but will direct that the cause stand over for the purpose of taking orders of revivor against the executors, without prejudice, however, to the right of the complainant to file a bill in the nature of a bill of revivor against such parties as he may be advised.


text:
    Luigi Moglia et al., by next friend, v. Egisto Moglia et al.
    [Decided November 13th, 1907.]
    Under a deed to a husband and wife and two children, not expressing their respective interests, where the consideration for such deed was paid substantially by the four grantees, the land having been acquired to carry on a business in which they were partners, it appearing that the purchase was intended to be for the equal and common benefit of all, and they without any division of partnership profits having continued to appropriate the partnership funds to the payment of a mortgage on the land given by all jointly, the husband and wife on partition are entitled to one-half of the proceeds of the land, and each child to one-fóurth thereof.
    On bill for partition. On application for order of distribution.

      Mr. Datto and Mr. Cha/rlton A. Reed, for the complainants.

      Mr. Benjamin W. Bllicott, for the defendants.
   Emery, V. C.

On reargnment of the question reserved by tire decree in this cause as to the respective rights of the parties in the lands and proceeds of sale, I adhere to the view expressed at the hearing. The substantial question is this: The land partitioned and sold was conveyed in November, 1899, to Peter Moglia, his wife, and their two sons, John and James Moglia, the deed not expressing the interests of the parties, or that the husband and wife held otherwise than as tenants by the entirety. The son John afterwards died, leaving the infant complainants as his heirs-at-law. The claim on their behalf is, that the husband and wife together take but an undivided third of the lands, and each son one-third. If nothing is to be considered in such cases but the deed (or will) itself, and the rules of law as applicable to its construction, the weight of authority is that the husband and wife, in the absence of any provision otherwise in the deed, together take but a third interest. 2 Jones Real Prop. § 1790; Barber v. Harris, 15 Wend. 615 (1836); Johnson v. Hart, 6 W. & S. 319 (1843); Theob. Wills (4th ed.) 230.

But a provision inserted in the deed, or other instrument, declaring that the husband and wife hold as joint tenants and not by entirety—Joos v. Fey, 129 N. Y. 17 (1891); Miner v. Brown, 133 N. Y. 308 (1892) — is effective, and the construction of wills in favor of a joint tenancy or tenancy in common is sometimes favored by considering the circumstances attending the gift. Warrington v. Warrington, 6 Jur. 872 (Vice-Chancellor Wigram, 1842). This rule of law as to the holding by entireties, not being a fixed rule which cannot be controlled by the parties, I think it may be controlled by proof of facts, which would) as between other persons, 'give rise to equitable rights inconsistent therewith, and that it may be held to be inapplicable, where the circumstances attending the conveyance and tenure of the property show that the parties to the conveyance, including the husband and wife, are intended to be equally interested and tenants in common, as between the third persons and the husband and wife. Such circumstances appeared in this case.

The purchase-money was paid substantially by the four persons equally, and the land was purchased for the purpose of carrying on the fruit business in which the members of the family- were partners, and for a home, in which they all lived together as one family — supported by the profits of the business. Payments on the purchase-money mortgage to the extent of $5,000, as well as interest on the mortgage, were made out of the moneys received from the partnership business. No division of profits or partnership accounts were kept. The parties are Italians, among whom such family community of ownership is not uncommon. The result of the whole evidence, in my judgment, seemed to be that the purchase was intended to be made for the equal and common benefit of the four members of the family, and out of the proceeds of a partnership business in which all were equally interested. And so long as the parties (without any division of partnership profits) continued to appropriate the partnership funds to the payment of the mortgage given by all jointly, I think the interest of the parties in the property must be considered as substantially the same as their interest in the partnership, and that these circumstances, indicating the respective equitable interests of the parties in the lands, are sufficient to entitle the court to declare that any legal title in the grantees other than the husband and wife, to more than their respective shares resulting from the payment of the purchase-money, is held in trust for the husband and wife. I conclude therefore that the decree in the cause declaring the husband and wife are together entitled to one-half of the proceeds of sale, and that each of the other grantees, or their respective heirs, are entitled to one-fourth thereof, is correct.


author: Emery, Y. C.

text:
    The Georke Company v. Frank Wadsworth.
    [Decided November 15th, 1907.]
    1. A right of way, which had never existed as such prior to a sublease over the sublessor’s remaining premises, was not created by, and did not pass by, the grant of “appurtenances” in the sublease.
    2. On the execution of a sublease of the upper floors of a building, a right of way to the floors so severed, as a way of necessity, may pass by implication of law without the use of the word “appurtenances.”
    3. Where a sublease of the upper floors of a building expressly provided for other means of access than an. open stairway leading from the first floor, the sublessee’s right to use such stairway to obtain access to the upper floors did not pass by implication of law as a way of necessity, under the rule that an easement by implication of law is raised in the absence of any express contract in reference thereto.
    4. Where a sublease of the upper floors of a building provided for new means of access other than by a stairway leading from the first floor, the fact that the sublease also provided that if the sublessee was unable to procure the consent of the original landlords to the construction of such new means of access, or it could not be constructed for any other reason, the sublessee might surrender the lease, did not render such new means of access substitutional only so as to raise an easement for the use of the stairway by implication in case the new way was not obtained.
    5. When a sublease of the upper floors of a store building was made to plaintiff, access thereto was obtainable only by an open stairway leading from the first floor store. The sublease contemplated access by means of bridges over an alley, connecting such upper floors with plaintiff’s other adjoining places of business, and contained no provision authorizing plaintiff to use the stairway. Prior to the beginning of the term, plaintiff, in the construction of such new way, shut up the stairway entrance at the second floor by flooring, after which defendant took down the stairway and constructed permanent fixtures across and beyond the place previously occupied by it. — Held, that on complainant’s failure to obtain the new mode of access contemplated by the sublease, it was not entitled to a mandatory injunction to compel defendant to replace the stairway and permit plaintiff’s use thereof by customers through defendant’s store as a means of access to the subleased premises.
    On bill for injunction. Heard on bill, answer, replication and proofs.

      Defendant, the lessee and occupant of an entire four-story building, on August 7th, 1902, leased to the complainant “the second, third and fourth floors of the four-story brick building No. 157 Market street, with the appurtenances,” from October 1st, 1902, until April 1st, 1909, for the yearly rent of $1,200, payable in equal monthly installments, monthly, in advance. At the time of the lease there was no common hall or stairway leading to any of the upper stories so leased, and the only access to the second story was by an open stairway in the first story along the east wall to'the second story. In the second and third stories there were also stairwajrs leading from each floor to the floor above. This stairway, from the first to the second story, began about forty feet from the front of the first story, and was about three and one-half feet wide. From a landing at the foot of the stairway there was access to the stairway in two ways; on one side, from a door leading into an alley about twelve feet wide, called Wilbur’s alley, which ran along the entire east side of the building, and on the other side of the landing the access was directly from and to the room on the first floor, which was occupied by defendant as an ice cream parlor and confectionery. Previous to the defendant’s lease, and up to the time of his lease to complainant, it does not appear that the occupation or use of the upper stories had ever been severed from that of the first floor. Complainant, at the time of the lease, occupied a three or four-story building on the east side of the alley, and also an adjoining building west of the leased premises, in which buildings they carried on a large department store, and the main, if not the only, purpose of complainant in renting the upper floors, was to connect the floors of its buildings on either side, with those of the leased premises, by means of new openings in the west wall of the leased premises, and also by new openings in the east wall, and bridges across the alley, connecting the floors of the buildings on the opposite sides of the alley. The original lease from the owners to Wadsworth, the defendant, contained a covenant on Wadsworth’s part, not to cut through the walls of the building or make any alteration without the written consent of his lessors. At the time of complainant’s lease no such consent had been given. And in reference to the subject of tbe proposed alteration and tire nse of the upper stories in connection with its other buildings, the lease between the parties to this suit contained the following provisions:
    “And it is further agreed between the parties hereto that, whereas, the said the Georke Company is the lessee or owner or occupants of divers premises adjoining the premises hereinabove demised, and álso of other premises to the east of the premises hereby demised and separated therefrom by a certain street known as Wilbur’s alley.
    “And whereas, it is the intention of the Georke Company to use the said premises in connection with the other premises above mentioned leased, occupied and owned by it, and for that purpose to connect the premises herein demised with the premises aforesaid by means of bridges or other means or methods of connection.
    “Now, therefore, it is agreed between the parties hereto that for the purpose of making said connections or communications between the demised premises and the other premises leased, used or occupied by the said the Georke Company, the said the Georke Company take such possession of the premises herein demised before the aforesaid first day of October, nineteen hundred and two, as may be necessary for the said Georke Company to have for the purpose of making the aforesaid connections or communications, so that the same may be completed before the said first day of October, and in the event that the said the Georke Company shall take possession of the premises aforesaid prior to the first day of October, nineteen hundred and two, then the said Georke Company shall, at its own expense, move the property of the said party of the first part from the said demised premises to one hundred and fifty-one Market street, in the city of Newark.
    “And it is further agreed between the parties hereto that, whereas divers questions may arise in making the connections or communications in the last preceding clause referred to between the premises therein demised and the premises now leased, occupied and owned by the Georke Company, if the said the Georke Company shall fail to secure consent according to the terms of said lease, or if for any reason the said the Georke Company shall be unable to make the said connections and communications, then, at the option of the said the Georke Company, its successors and assigns, the said the Georke Company may surrender this lease, and, upon the making of said surrender, this indenture of lease and anything herein contained shall cease and terminate, anything herein-before to the contrary notwithstanding; and in the event of the terminating of the said lease as aforesaid, if the said the Georke Company shall have taken possession of the said demised premises for the purpose of making the connections and communications in this lease mentioned, and shall have moved the said party of the first part to the premises one hundred and fifty-one Market street, then and in such event the said Georke Company, at its own expense, shall remove the property of the said party of the first part by it theretofore moved and replace the same upon the premises herein demised.”

      There is no satisfactory evidence that during the negotiations for the lease, and up to the time of its execution, there was any special conversation or communication in reference to the stairway or its use. The Georke Company, about August 27th, 1902, took possession of the premises, and without having obtained any written consent of the owners, cut through the walls of the building upon both sides, and by bridges over the alley connected the upper stories of the leased building with the upper stories of their building east of the alley. As the bridges were thrown across, complainant floored over the opening in the floor of the second story of the leased building made for the stairway, by a temporary flooring, and access to the second floor of said building was by its other buildings.
    Subsequently, and within three or four weeks, a permanent floor, on beams, was laid across the opening. The stairways to the third and fourth stories seem to have been removed also by the complainant as part of the method of use of the premises in connection with their other buildings. What use, if any, was made by the complainant of the stairway from the first floor before it was covered over by it, does not appear, but as the entrance on the premises before October 1st, when the term commenced, was only permitted for the purpose of making the alterations, and was permitted without paying any rent for the occupation, it was probably as well as legally, only used in connection with the egress and ingress for that purpose. After complainant had closed the stairway opening temporarily by the floor, the defendant took down the stairway, removing, as necessary for this, the balustrade or railing in the second story around the opening, and then sealed up the ceiling of the first story. Whether the stairway was removed before the complainant’s permanent flooring, does not clearly appear, but the connections of complainant’s buildings were completed and the stairway removed before the commencement of the term under the lease. Mr. Georke, the president of the complainant company, swears that in August or September, 1902, he notified defendant not to take the stairway down; that while thejr would not use it at once, they wanted it to get in and out of the premises if they should require it. As to a conversation in which notice was given to defendant that he (Georke) wanted the stairway, he is corroborated by one of the superintendents of the company, who sajrs it took place at the time the stairway was being removed. The defendant, however, denies that any such notice was given. At or about the time when the breaking of the walls for the purpose of making the connections was commenced (August 25th, 1902), defendant gave notice, in writing, to complainant not to cut any openings in the outer walls on penalty of being held responsible for damages ensuing by reason thereof, but took no other proceedings. The owners having given no written consent to the making of these openings, on October 10th, 1902, filed a bill, against both defendant and complainant, to enjoin further alteration and to compel restoration, as being violations of tire covenants in the lease, and a waste of the premises.. Peer v. Wadsworth, 67 N. J. Eq. (1 Robb.) 191. Complainant in this suit set up a parol consent of the owners, or one of them, as a defence, but this defence was not sustained, and by a final decree in the suit, dated October 21st, 1904, both the complainant and defendant were enjoined from further cutting openings in the walls without written consent, and were required to restore the premises to their original condition. An appeal, taken by complainant, was dismissed for want of prosecution, at the March term, 1905. Pending the suit and the appeal, the issuing of an injunction had been stayed on complainant’s giving bonds to the lessors, and during the whole of that time and up to J une 22d, 1905, when the injunction was served, the premises leased had been used in connection with the other buildings of the complainant, through which-alone access to the leased premises was had. During the pendency of this suit by Wadsworth’s lessor, complainant’s solicitor, by a letter dated April 11th, 1903, notified defendant that the defendant had recently deprived the company of the stairway and hatchway which it had hitherto used, and demanded immediate restoration of said hatchway and stairway, and by letter dated June 12th, 1903, again protested against removing the stairway leading from the alley to the upper floors and demanded the immediate restoration of the stairway to avoid legal proceedings. Upon the service of the injunction, complainant removed the bridges, filled up the openings in the walls on both sides, and formally notified defendant, in writing, that compliance therewith deprived the company of an access to or exit from the premises, and that he should forthwith provide some convenient or appropriate access to the premises rented. Defendant failing to restore the stairway or provide some other ingress or egress, the complainant files this bill for a mandatory injunction to restore the stairway or provide some other ingress or egress. Complainant had not, at the time of filing the bill, or up to the time of the hearing, removed the permanent flooring put down by it, over the hatchway, and defendant, since the removal of the stairway, has, at considerable expense, located fixtures of a somewhat permanent character across and beyond the place occupied by the stairway, and has, in some other respects, changed the use of the first floor for his business.
    The bill prayed the alternative relief of a restoration of the stairway or the provision of another way in lieu thereof, but the contention of complainant’s counsel at the hearing was for the restoration of the stairway, and this was put upon the ground that by the lease, the stairway passed as an “appurtenance” to the upper stories, and by the express demise of the upper stories “with the appurtenances.” The claim for alternative relief was not referred to at the hearing.

      Messrs. Hood & Hood, for the complainant.

      Messrs. Lambert & Stewart, for the defendant.
   Emery, Y. C.

(after statement).

A right of way which had never existed as such previously to the lease, and over the remaining premises of the lessor, is not created by and cannot pass under the general word “appurtenances” in the lease. Stuyvesant v. Woodruff, 21 N. J. Law (1 Zab.) 133 (Supreme Court, 1847); Fetters v. Humphreys, 19 N. J. Eq. (4 C. E. Gr.) 475, 476 (Court of Errors and Appeals, 1868); Hazeldine v. McVey, 67 N. J. Eq. (1 Robb.) 275, 277 (Vice-Chancellor Stevens, 1904). On severance of the premises, it may, as a way of necessity, pass with the lease of a portion of the premises, by implication of law, as appurtenant to the premises, without the use of the word “appurtenances.” Fetters v. Humphreys, supra; Newhoff v. Mayo, 48 N. J. Fq. (3 Dick.) 619, 624 (Court of Errors and Appeals, 1891). An easement by implication' of law is raised in the absence of any express contract in reference to the easement, and the question in this case relates to the effect of the express provisions in the lease as to another means of access, upon the easement which would have been raised by implication of law, had no contract for other access been made. The maxim of construction expressum fácil cessare taciturn, controls the case on this point, and the express contract for another way of access which the lessee had the right to provide, before the commencement of the term, prevents the creation of another easement by implication. Nor can it be considered that because it was contemplated that there might be a failure to procure the proposed new access, the new way was to be substitutional only, and the easement by the stairway was, by implication, to continue subject to the substitution of the new •wav, or was to revive on its failure. The reason is that the same maxim of construction is again applicable, and the express contract as to the rights of the parties, made in reference to this contingency, also prevents the raising of this implied easement, and prevents the remittal or restoration of the parties to the estates which the law would have implied in the absence of any express contract as to the right of complainant, on the failure of the new access. The provision that the lessee might enter before the term for the purpose of making the new access, and the making of this new access and the closing of the stairway, before ■the commencement of the term, by permanent flooring, in which both parties joined (the defendant, by removing the balustrade, and the complainant, by making a permanent flooring), shows, I think, that during the term the only access to the premises, in relation to which both parties meant to contract by the lease, was the access contemplated to exist and actually existing when the term was to commence, and not the access when the lease was dated. If the sole question, therefore, were one of complainant’s legal right to the use of the stairway, or of a substituted way, other than the one expressly referred to, I should be of opinion that there was no legal right to be protected in equity. But a court of equity does not usually undertake to settle, in the first instance, questions of doubtful legal right, and the precise question at issue here is the narrower one, whether a mandatory injunction should issue compelling the restoration of the stairway, or whether complainant, for the protection of any legal right it may have to the use of this stairwaj', should be remitted to an action at law.

A restoration of the stairway and the establishment of complainant’s right to use it as it existed at the date of making the lease, would, as it seems to me, carry with it the right to use defendant’s store for access to the upper stories for any purpose within complainant’s legal rights of occupation under its lease, and would or might seriously affect defendant’s business, and his occupation of the first story for the purpose of his business, in a manner not contemplated by the parties at the time of making the lease and fixing the rental. Any new substituted way which complainant would have the right, under its lease, to make, for complainant, would apparently be located wholly within the walls of the first story, and necessitate similar interference with defendant’s business. Assuming, therefore, the existence of anjf such right of substituted way, there would be the same objection to its creation by mandatory injunction. On the whole case, therefore, I conclude that if the complainant, on the failure of the new access, insists upon its right to other protection than that .of terminating the lease, and has such additional right, the legal remedy by damages for interference with it, is the remedy to which it should be remitted.

The bill will be dismissed without prejudice to an action at law.


text:
    Virginia Heinisch v. William Pennington et al., executors of Jacob S. Rogers et al.
    [Decided December 6th, 1907.]
    1. Under P. L. 1900 p. 368 § If, providing that a party to a civil action cannot testify as to any transaction with or statement by any decedent or intestate represented in such action, unless the representative offers himself as a witness in his behalf and testifies as to any transaction with or statement by decedent, a complainant in an action against the executors of her deceased half-brother on a claim against the half-brother in relation to the will of their father could not testify as to statements made by the two decedents in a conversation between them.
    2. In an action against the executors of complainant’s half-brother on a claim against him in relation to the will of their father, evidence as to a conversation between complainant and the half-brother shortly before the father’s death examined, and held insufficient to prove that it was understood by either of them that the father had determined to alter his will so as to give complainant any definite sum additional to the provision already made for her.
    3. Where, at the time of a suit against the executors of complainant’s half-brother to charge his estate with his fraud in failing to execute a parol trust for complainant’s benefit imposed upon decedent by their father, which trust the half-brother is alleged to have promised to fulfill, all the witnesses as to the physical and mental condition of the father, with the exception of complainant and another, Were dead, and where though for nearly forty years after the father’s death complainant’s deceased brother had acted as trustee of the father’s will and had given complainant only what she was entitled to under the will, and complainant made no claim under the alleged trust until after her brother’s death, a court of equity will act with the utmost caution and will not charge the trustee’s estate unless the promise and the intended fraud are established by clear proof.
    4. The sole equitable basis of depriving a legatee or devisee of the full protection of the statute of wills is that by reason of a promise to the testator, made by the legatee or the person through whom the legacy was given, the testator was induced to make or leave unaltered the legacy or devise.
    5. Where, by reason of a promise to a testator by a legatee, the testator leaves his will unaltered, the equitable remedy for compelling the legatee to carry out his promise is that of impressing the property received by the legatee with a trust ex maleficio and seizing the property for that purpose and not by a personal decree for performance and relief.

      6. Where a promise was given on the faith of which an estate was devised to persons as tenants in common, the promisor being one, the other legatees did not hold their shares subject to the performance of promise.
    7. Though a trust ex maleficio was imposed upon property bequeathed to a legatee by the legatee’s failure to fulfill a promise made to the testator by virtue of which the testator failed to alter his will, the trust would not be impressed against.the estate of the legatee nearly forty years thereafter, where such legatee’s estate was largely, and, perhaps, altogether accumulated after the testator’s death.
    8. A claim in equity against a legatee to charge him as trustee ex maleficio, of which claim complainant had knowledge before she became of age, which was not prosecuted within twenty years after becoming of age, was barred by limitations.
    9. Unexplained delay in bringing suit on a claim against a legatee to charge him as trustee ex maleficio, until after the death of the alleged trustee and of the witnesses whose evidence might be important on the question of the existence of a trust, constituted such laches as would bar a suit to impress a trust upon the legatee’s property.
    10. A promise by a legatee to a testator to provide well for one of testator’s children out of the promisor’s property, and to make her at his own death one of his own devisees, was too indefinite to be the subject of a suit for specific performance.
    11. A promise by a legatee to a testator to provide well for one of testator’s children out of the promisor’s own property, and to make her at his own death one of his own devisees, in consideration of which promise testator allowed his will to remain unchanged by which he gave the great bulk of his estate to the promisor and three others as tenants in common, was unreasonable and inequitable, as it was as much for the benefit of the other legatees as for the promisor’s own benefit, from none of which other legatees any consideration was received, and hence was not subject to specific performance.
    On bill, &e. Heard on bill, answer, replication and proofs.

      Mr. Wesley B. Stout and Mr. Aaron E. Johnston, for tbe complainant.

      Mr. George Holmes and Mr. Richard V. Lindabury, for the defendants.
   Emery, V. C.

Tbe bill in this case is filed by Mrs. Heiniseh, a half-sister of Jacob S. Eogers, deceased, against the executors of his will, and the residuary legatee and devisee under his will, and the bill is based on a claim against the testator, in relation to the will of Thomas Rogers, the father of complainant, and Jacob S. Rogers. Thomas Rogers died on April 19th, 1856, leaving a will, dated December 28th, 1855, with a codicil, dated April 5th, 1856, and leaving a large estate, of which about $916,000 was personalty. At the time of his death he was carrying on a manufacturing business, known then or subsequently as the Rogers Locomotive Works, in Paterson, and his four sons, of whom Jacob S. was one, were associated with him in the business. The complainant was then about eight years of age, and was the daughter and only child of a second wife. By his will, Thomas Rogers devised to three trustees (of whom his sons Jacob S. and Columbus B. were two) six hundred shares of Paterson and Hudson River railroad stock, of a par value of $30,000, the income of which, until complainant was of age, and up to' the amount of $800 was to be expended for her support and maintenance, and the balance accumulated and invested, and from her arrival at twenty-one, complainant was to receive the entire income during life, and at her death the capital to go to her issue. By his original will, Thomas Rogers gave to his wife Elizabeth, complainant’s mother, $300 per annum, and by the codicil, executed fourteen days before his death, he established in her favor a trust in six hundred shares of the same road, and to a natural son gave $30,000 and interest. No increase of complainant’s bequest was made by the codicil. The residue of Thomas Rogers’ estate was, by his will, divided equally among his four sons, and they each received about $190,000, Jacob’s share being the same as that of the other sons. Complainant came of age in 1869, and Jacob S. Rogers continued to act as one of her trustees, under her father’s will, until 1893, when another trustee was substituted.

The accounts of the trustees show that during complainant’s minority there had been an accumulation of principal of over $29,000, and that since arriving at age she has received the entire net income, varying from $4,000 to $5,000. Jacob S. Rogers, together with his brothers, continued the locomotive works after his father’s death) survived all his brothers, and died in July, 1901, possessed of an estate of over $5,000,000. By his will, dated June 23d, 1892, and four codicils thereto, dated respectively December 11th, 1894, December 5th, 1898, May 24th, 1899, and October 2d, 1900, after bequests to certain of his nephews and nieces, amounting to about $250,000, and other legacies of $30,000, he devised and bequeathed the residue of his estate, subject to two annuities of $500 each to two of his grandsons, to the corporate defendant, as an endowment fund, of which the income only was to be used for purchases of objects of art and books.

A clause in Jacob S. Rogers’ original will (item fifteenth) declared that it was his intention to exclude all of his next of Idn, heirs or collateral relations, except those mentioned in his will, from any share in his estate. Complainant was not mentioned in Jacob S. Rogers’ will. A contest arose over the probate of this will before the prerogative court, in which the next of kin, or some of them, including complainant, were caveators. During the course of these proceedings, a claim was made by or on behalf of the next of kin, that there had been an agreement between Jacob S. Rogers and his deceased brothers,, whereby these brothers, in default of issue, were to make mutual wills and were to leave their property to others of their issue. Jacob died unmarried and without issue. This claim and the objections to the probate were settled by an agreement between the heirs and next of kin and the residuary legatee, under which $250,000 was paid to the heirs and next of kin for distribution among them, and the heirs, including complainant, also released all claim against the estate under this alleged agreement. Complainant signed a release, under seal, to the residuary legatee from any claim arising out of this alleged contract for mutual wills, or the probate of the will, but with the following proviso: “Nothing herein contained, however, is intended to or shall operate as a release of * * * any claim I may have against the executors of the said estate arising otherwise than as aforesaid.”

The will of Jacob S. Rogers was thereupon admitted to probate, and the executors advertised regularly for claims against the estate. No claim was presented by complainant, and the estate' was settled by the executor’s final account, and the residue was paid to the corporate defendant, without, so far as appears, any notice of any other claim against Jacob Rogers or his estate, on the part of the complainant. The release is not claimed to be a bar to the present demand of complainant, but by reason of the nature of the claim released, the release may, by way of evidence, bear upon the existence at that time or previously of any claim of the character now set up.

The claim set out in the bill is substantially as follows: It is alleged that Thomas Rogers, complainant’s father, on the day before his death, Jacob being present, desired to change his will and to give complainant $100,000 more than he had already given her, and was greatly worried; that Jacob then told his father not to let that worry him, adding: “I will provide for her. I will leave her well provided for.” It is alleged in the bill that, by this language, Jacob meant that he would take care of complainant during her life, and at his (Jacob’s) death would leave her a large part of his (Jacob’s) estate; and that by falsely representing this to Thomas Rogers, Jacob induced Thomas to give to him (Jacob) a large sum of money,’to wit, $100,000, which Thomas intended to give to complainant. Two witnesses were called to prove these alleged representations of Jacob S. Rogers to his father, one of them being complainant herself, a child eight years of age at the time. Her statement of the conversation between Jacob and his father was taken under objection and, under the statute, is inadmissible in this suit against the executors of Jacob’s estate. Evidence act WOO § % (P. L. WOO p. S6S); Adoue v. Spencer, 62 N. J. Eq. (17 Dick.) 782, 794 (Court of Errors and Appeals, 1900). The other witness is an uncle of complainant, Emanuel Smelleger, now eighty years of age, a man then between twenty-eight and twenty-nine. At that time Smelleger was a journeyman carpenter, following his trade in New York, but was then out of work and (as he says) usually made his home at the house in New York where Mr. Rogers was living at that time with is wife, and where he died. This witness, who knew the son Jacob by sight, but had no particular acquaintance with him, says, that when Jacob came in on the day before his father died, the father spoke to him and said: “I have just offered Dr. Gunn (one of the physicians who attended him) $100,000 if he would prolong my life thirty 'days.” The witness (not Jacob) asked. “What did you do that for?” and Thomas Eogers said: “I want to make a change in my writings for this dear girl; she was neglected and T want to give her more than what she has got in writing.” Jacob said, “Father, never mind that, I will provide well for her; don’t let that worry you at all. I will provide for her.” The witness further says that Eogers smiled and nodded his head and appeared to be perfectly well contented after his son had made this promise. The complainant was also one of the four persons present at this time, the others being Thomas Eogers, Jacob Eogers and the witness Smelleger. This witness, on cross-examination, say» that Thomas Eogers, during his illness, offered large sums of money to different ones, Mrs. Eogers and himself, if they would cure him, and that he was very timid about dying. And as to any apprehension of approaching death at the time of this conversation, the witness says that during the last two weeks of his life he thinks, from the way he would talk, Thoman Eogers was not aware that he was likely to die, and further says, that when Thomas made this remark to Jacob, he (the witness) does not think Thomas had any idea that he was going to die. Smelleger swears that he supposes that Thomas Eogers offered this amount of money to prolong his life for thirty days, in order that he might change his will. And on reading over the entire evidence of this witness, I think that a conclusion that any facts sworn to by him prove that it was then understood, either by Thomas or his son Jacob, that Thomas had finally determined to give to this child, by an alteration of his will, $100,000, or any other definite siim, more than he had given, and to give it to her absolutely, would rest solely on a like supposition or conjecture, and not on evidence. Yague expressions of the kind made by the testator, and of the kind Jacob is said to have made in reply, “I will provide for her well,” should not be considered sufficient to deprive a legatee of the benefit of the statute of wills. In all cases of this kind, courts of equity act with the utmost caution, and do not interfere, unless the promise and the intended fraud on the beneficiary are established by clear and satisfactory proof. Williams v. Vreeland, 32 N. J. Eq. (3 Stew.) 734, 737 (Court of Errors and Appeals, 1880). And in this case the strongest and clearest evidence of Jacob’s fraud in procuring the retention of provisions of a will in his favor, by inducing the testator to rely on his verbal promise, should be requred, for all the other witnesses to the physical and mental condition of the testator (which had important bearings on anything then said by the testator) are now deceased, and the claim is not made until after the death of Jacob himself, who seems for nearly forty years afterwards to have given to complainant only what she was entitled to under the will.

The sole equitable basis of depriving a legatee or devisee of the full protection of the statute of wills is, that by reason of a promise to the testator made by the legatee or the person through whom the legacy was given, the testator was induced to malee, or leave unaltered, the legacy or devise, and the equitable remedy for the purpose of preventing the statute of wills from becoming a means of fraud, is that of impressing the property received by the legatee under the will, with a trust arising ex maleficio, and converting the legatee, as a holder of property bequeathed, into a trustee. Williams v. Vreeland, 32 N. J. Eq. (5 Stew.) 734, 736, and cases cited; Yearance v. Powell, 55 N. J. Eq. (10 Dick.) 577, 579 (Court of Errors and Appeals, 1897); Fry Spec. Perf. (4th ed.) § 577; Pom. Spec. Perf. (2d ed.) 268, note. This equitable remedy is not by way of specific performance of a contract, and a personal decree for performance and relief, based on such grounds, would seem to clearly disregard the express provisions of the statutes, both of frauds and wills. I have not been referred to, nor do I find, any case where relief was granted against the legatee in such cases, except by seizing, either in his hands or of those who held for him, the property devised or bequeathed to him for the purpose of impressing it with a trust.

The other legatees of Thomas Bogers’ .residuary estate apparently knew nothing of any promise on Jacob’s part, and not holding as joint tenants, but as tenants in common, and therefore not receiving their legacies through their brother, they were entitled to hold their legacies as bequeathed by the will, without any impairment by reason of Jacob’s alleged promise. I considered ■.md decided this question in Powell v. Yearance (October, 1907), 67 Atl. Rep. 892. The estate of Thomas Rogers has. been settled by his executors, and the residuary estate was divided among the legatees forty years ago. The estate on which a trust is now sought to be impressed, or a claim established, is the estate, not of Thomas, but of Jacob, accumulated largely (perhaps altogether) after he received his share of his father’s estate. That any of the estate possessed by Jacób at his death was the proceeds of the estate received from his father is mere conjecture. So far, therefore, as the claim of complainant is based on any theory of trust, and of impressing property received by Jacob from Thomas with a trust ex maleficio in favor of complainant, it must fail, because there is no such property. And should it be considered that Jacob’s subsequent conversion to his own use of the property received by him from his father (which may have been before the complainant came of age) left him still personally liable as trustee ex maleficio, and to the same extent as if he still held the property bequeathed, then the failure of complainant to prosecute her claim, if any she had, within twenty years after coming of age, brought the case within the application of the statute of limitations. This statute is applied by a court of equity in cases of trusts where the trust is raised constructively or by implication, through the application of its own equitable rules, and bars the claim, unless the cause of action has been concealed by fraud of the alleged trustee, and the party injured had no means of discovering the claim. Barnes v. Taylor, 27 N. J. Eq. (12 C. E. Gr.) 259, 265 (Chancellor Bunyon, 1876); Mills v. Hendershot, 70 N. J. Eq. (4 Robb.) 258, and cases cited (Vice-Chancellor Emery, 1905); Wood Lim. § 58 and note. And independent of this statute, the unexplained laches of the complainant in delaying suit until after the death of the alleged trustee, and of the witnesses whose evidence might be important upon the question of the existence of any trust would be a bar to impressing a trust upon property of which Jacob S. Rogers died seized, either as part of the property originally received from his father, under circumstances which impressed a trust thereon in favor of the complainant, or as derived, directly or indirectly, from the proceeds of such property.

Looking at complainant’s claim in another aspect given to it by the bill and at the hearing, viz., as based on personal contract made by Jacob S. Rogers, with his father, to provide well for complainant out of Jacob’s own property and make her at his own decease one of his own devisees, no relief can be given. Such claim is an application for specific performance of a contract, and manifestly the contract, if it was made in this form, lacks elements necessary for this purely equitable relief. Not only is it too vague and indefinite to admit of specific performance, but it would be also unreasonable and inequitable, if not illegal, to control the right of Jacob to the absolute control of his subsequent acquisitions, by a decree for the specific performance of an agreement made with and for the benefit of other persons, from whom no adequate consideration was received.

In any aspect of the case, therefore, the complainant has failed to make out a claim entitling her to the aid of the court. Her expectation of provision from her brother’s estate was perhaps a reasonable one, but it was evidently a mere expectation or hope, and was not based on any trust imposed on Jacob’s property, or contract made .by him for complainant’s benefit, which this court can enforce in disregard of the provisions made by his will, and the efllect given to them by the statute. The executors of his estate, and his residuary legatee, were therefore entitled to receive and dispose of the estate under these provisions, and the bill will be dismissed.