author: Ingersoll, Y. C.

text:
    Edward Board, complainant, v. Mary Freedman et al., defendants.
    [Decided April 17th, 1925.]
    A mechanics’ lien claim filed upon separate -buildings and upon distinct lots of land, without apportioning the claims and designating specifically the amount claimed upon each, is not a compliance with the statute, and must be postponed to claims of other encumbrancers, and, therefore, the mortgages upon the property covered by the liens are prior to unapportioned mechanics’ liens on the same property.
    On exceptions to master’s report.

      Messrs. Babcoclc & Champion, fox the complainant.

      Mr. B. Louis Blumberg, for the defendants Mary Freedman, Louis Freedman and Sylvia L. Press.

      Messrs. Cassman & Gottlieb, for the defendant Atlantic Mortgage Company.

      Messrs. Thompson & Hanslein, for the defendant Atlantic Safe Deposit and Trust Company.

      Messrs. Cole & Cole, for the defendants Hudson Cement and Supply Company, Somers Lumber Company and Abram Gardner.

      Mr. Robert F. Sheppard, for the defendant A. J. Bozarth Mill and Lumber Company.

      Mr. Herbert R. Voorhees, for the defendant Harry Abel.
   Ingersoll, Y. C.

This is a bill to foreclose a mortgage given by Mary Freedman et vir et al. to the complainant to secure the payment of the sum of fifteen thousand dollars ($15,000) in one year from the date thereof, which was September 1st, 1922.

The mortgage was in due form, and is past due and unpaid; no objection is or can be made to a decree in favor of the complainants.

By order dated May 9th, 1924, it was referred to John B. Slack, Esq., one of the masters of this court, “to ascertain and report the amount due to the complainant for principal and interest upon the mortgage held by him upon the premises mentioned and described in the bill of complaint, and also the amount due, if anything, to the said Harry Abel, Atlantic Mortgage Company, Atlantic Safe Deposit and Trust Company, A. J. Bozarth Mill and Lumber Company, Somers Lumber Company, Hudson Cement and Supply Company and Abram Gardner, upon their respective mortgages and encumbrance's and to report accordingly; and also to ascertain and report the order and priority of the said several mortgages and encumbrances respectively, and whether they all embrace the same premises, and whether the premises should be sold together or in parcels, and, if in parcels, in, what order; and that the said master do make his report with all convenient speed.”

The master, after several sittings and the taking of several hundred folios of testimony, filed his report, in which he reported the amounts due and the order of priority of the complainants and the several defendants as follows:

“First. To the complainant on its bond and mortgage marked Exhibits G-i and 0-5, the sum of sixteen thousand two hundred and forty-two dollars and fifty cents [$16,-242.50 ), with interest from July 18th, 1924, and his taxed costs.

“Second. To the defendants Mary Freedman and Louis Freedman, her husband, and Sylvia L. Press, on their bond and mortgage marked Mxhibils D-l and D-2, the sum of nine thousand six hundred and sixty dollars [$9,660], with interest, from July 18th, 1924, and their taxed costs.

“The balance of the money should then be divided among the ten separate properties in sums obtained in the following manner:

“Sum of sale price of all ten properties designated by A' less [amount due complainant plus amount due Freedman et al. as aforesaid] designated by B'.

“Sale price of property described [1] designated by C'.

“Sale price of property described [2] designated by D'.

“Sale price of property described [3] designated by E'.

“Sale price of property described [4] designated by F'.

“Sale price of property described [5] designated by G'.

“Sale price of property described [6] designated by IT.

“Sale price of property described [7] designated by I'.

“Sale price of property described [8] designated by J'.

“Sale price of property described [9] designated by K'.

“Sale price of property described [10] designated by L'.

“Amounts to be credited to each of the ten properties heretofore specifically described:

“[1] C'-A' x B'; [2] D'-A' x B'; [3] E'-A' x B'; [4] F'-A' x B'; [5] G'-A' x B'; [6] H'-A' x B'; [7] I'-A' x B'; [8] J'-A' x B'; [9] K'-A' x B'; [10] L'-A' x B'.

“After determining the amounts to be credited to each property as aforesaid, there should be paid to defendant Harry Abel from the amount credited to each of the properties [1], [2] and [3] the sum of $75.60, with interest from July 18th, 1924, and his taxed costs, and from the amount credited to each of the properties [4], [5], [6], [7], [8], [9] and [10] the sum of $36.12, with interest from July' 18th, 1924, and his taxed costs.

“There should then be paid from the amount credited to property [Y] to the defendant Atlantic Safe Deposit and Trust Company the sum of $12,046.25, with interest from July 18th, 1924, and its taxed costs, and if any balance remain it should be put in a fund called the general fund.

“There should be paid from the amount credited to property [2] to the defendant Atlantic Safe Deposit and Trust Company the sum of $10,475, with interest from July 18th, 1924, and its taxed costs, and if any balance remain it should be put in said general fund.

“There should be paid from the amount credited to property [3] to the defendant Atlantic Safe Deposit and Trust Company the sum of $10,475, with interest from July 18th, 1924, and its taxed costs, if any balance remain it should be put in said general fund.

“There should be paid from the amounts credited to each of the properties [4], [5], [6], [7], [8], [9] and [10] to the defendant Atlantic Mortgage Company the sum of $4,792.50 against each propertj, with interest from July 18th, 1924, and its taxed costs, and if any balance it should be put in said general fund.

“From the general fund there should be paid without preference to defendant A. J. Bozarth Mill and Lumber Company $4,168.97, with interest from July 18th, 1924, and its taxed costs; to defendant Hudson Cement and Supply Company $1,182.06, with interest from July 18th, 1924-, and its taxed costs; to defendant Somers Lumber Company $2,-181.6.2, with interest from July 18th, 1924, and its taxed costs; to the defendant Abram Gardner the sum of $581.51, with interest from July 18th, 1924, and his taxed costs. If there is not sufficient moneys in the said general fund to pay the aforesaid defendants entitled to participate therein, to wit, A. J. Bozarth Mill and Lumber Company, Hudson Cement and Supply Company, Somers Lumber Company and Abram Gardner, then the said general fund should be divided among them pro raía.”

Exceptions to the report were filed by several of the defendants.

The facts in this case are:

On September 1st, 1922, Mary Freedman and Sjdvia L. Press purchased the lands and premises described in the complainants bill of Edward Board, and as part consideration gave him a bond and mortgage (in which their respective husbands joined) to secure the payment of the sum of $15,-000 -within one year from that date, with interest at six per cent, per annum, payable semi-annually.

The deed from and the mortgage to Board was dated September 1st, 1922, and recorded September 11th, 1922.

On February 28th, 1923, the said Mary Freedman and Sylvia L. Press, together with'their husbands, conveyed the same lands and premises subject to said mortgage of $15,000 to one Martin A. Miller by deed bearing that date, and recorded on April 30th, 1923. On the day of said conveyance, and as a part of the consideration thereof, the said Martin A. Miller executed a mortgage to the said Mary Freedman and Louis’ Freedman, her husband, and said Sylvia L. Press to secure the payment of the sum of $9,000 on or before the 1st day of September, 1923, with -interest at the rate of six per cent, per annum, payable semi-annually, which mortgage was recorded on April 30th, 1923.

On June 18th, 1923, the said Martin A. Miller made and executed a bond and mortgage to one Louis Bloom upon lot No. 1 of a map of the said lands and premises described in the complainant’s bill, together with a right of way over tract No. 11, which map or sketch is hereto attached, to. secure the pajonent of the sum-of $11,500 on or before three years from the date thereof, together with interest, &c., which mortgage was recorded on the same day.

On the same day a like mortgage in like amount was executed by Miller to Bloom upon lot No. 2 of said sketch, together with the same right of way. This mortgage was likewise recorded on said date.

On the same day a like mortgage in like amount was executed by Miller to Bloom upon lot No. 3 of said sketch, together with the same right of way. This mortgage was likewise recorded on said date.

On July 3d, 1923, by assignment bearing that date and recorded on July 5th, 1923, the said Louis Bloom assigned to the Atlantic Safe Deposit and Trust Company the said three mortgages as security for payment of a certain promissory note in the sum of $25,000, dated July 3d, 1923, payable three months after date, or any renewal thereof.

On June 18th, 1923, the said Martin A. Miller made and executed a bond and mortgage to one Louis Bloom to secure payment of the sum of $4,500 on or before three years from the date thereof, together with.interest upon the lands and premises marked lot No. 4 of the attached sketch, together with right of way over tracts Nos. 11 and 12, excepting, however, all the lands over which part of buildings project as per map therein referred to, which mortgage was recorded on the same day.

On the same day a like mortgage in like amount was executedby Miller to Bloom upon Lot No. 5 of said sketch, together with the same rights of way. This mortgage was likewise recorded on its date.

On the same day a like mortgage in like amount was executed by Miller to Bloom upon lot No. 5 of said sketch, together with the same rights of way. This mortgage was likewise recorded on its date.

On the same day a like mortgage in like amount was executed by Miller to Bloom upon lot No. 7 of said sketch, together with the same rights of way. This mortgage was likewise recorded on its date.

On the same day a like mortgage in like amount was executed by Miller to Bloom upon lot No. 8 of said sketch, together with the same rights of way. This mortgage was likewise recorded on its date.

On the same day a like mortgage -in like amoxxnt was executed by Miller to Bloom upon lot No. 9 of said sketch, together with the same rights of way. This mortgage was likewise recorded on its date.

On the same day a like mortgage in like amount was execxxted by Miller to Bloom upon lot No. 10 of said sketch, together with the same rights of xvav. This mortgage was likewise recorded on its date.

On July 3d, 1923, by assignment bearing date that day and recorded on July 5th, 1923, the said Louis Bloom assigned to the Atlantic Mortgage Company, a corporation of New Jersey, for the expressed consideration of $28,350 the said seven mortgages.

By agreement the time of the payment of the seven mortgages last above referred to was shortened, and they were each made payable on January 3d, 1924.

The lands and premises in question were conveyed by Martin A. Miller to Laura Singer by deed dated June 19th, 1923, and recorded July 30th, 1923. The expressed consideration was $1,000 aud other good and valuable consideration, and in said deed it was recited, “subject, however, to two mortgages amounting in the aggregate to $24,000.”

The said lands and premises were conveyed by Laura Singer and Samuel, her husband, to Samuel Levin, by deed dated September 10th, 1923, and recorded on September 11th, 1923. The expressed consideration was $3,530, and the conveyance was made “subject to all encumbrances and existing liens.”

On September 22d, 1923, A. J. Bozarth Mill and Lumber Company filed a mechanics’ lien claim against Bloom Corporation as builder and Martin A. Miller, Laura Singer, Samuel Singer and Samuel Levin as owner for the sum of $3,869.47.

The lands described were the premises in question, and the buildings consisted of ten brick and frame stores and dwelling-houses.

On October 6th, 1923, the Somers Lumber Company filed a mechanics’ lien claim against Bloom Corporation, builder, and Samuel Levin, owner, for the sum of $2,004.78. The lands described were the premises in question.

On October 8th, 1923, Harry Abel filed a mechanics’ lien claim against Bloom Corporation, builder, and Samuel Levin, owner, and the Atlantic Safe Deposit aud Trust Company and the Atlantic Mortgage Company, mortgagees, for the sum of $411. The lands described were the premises in question.

On October 13th, 1923, the Hudson Cement and Supply Company filed a mechanics’ lien claim against the Bloom Corporation, builder, and Samuel Levin, owner, for $1,067.29.

The lands described were the premises in question, and the buildings were described as a three (3) story brick stores and apartments along Atlantic avenue at Metropolitan avenue, measuring, approximately, 16x40'feet, and seven (7) two-story brick buildings on Metropolitan avenue, measuring, approximately, 15 x 40 feet.

On November 5th, 1923, Abram Gardner filed a mechanics’ lien claim against the Bloom Corporation, builder, and Samuel Levin, owner, for $504.70.

The lands described were the premises in question, and the buildings;were described as three (3) three-story brick stores and apartments along Atlantic avenue and Metropolitan avenue, measuring, approximately, 16x40 feet, and seven (7) two-story buildings on Metropolitan avenue, measuring, approximately, 15 x 40 feet.

On March 29th, 1923, the Bloom Corporation by one Kemors, designated as superintendent, made application to the building department for a permit to erect at Metropolitan and Atlantic avenues seven (7) two-story brick buildings 14'x37', and three (3) three-story brick stores 14' 4"x38', and as a part of said application is a sketch showing the premises substantially as per sketch attached hereto, excepting, however, the rights of way.

The application is endorsed: “Permit No. 16240,” showing that a permit was granted for this work.

The master reported the mortgages held by the Atlantic Safe Deposit and Trust Company and by the Atlantic Mortgage Company to be prior to the mechanics’ lien claims filed by the several defendants, excepting, the claimant Harry Abel, and entitled to priority of payment thereto.

There can be no dispute that the entire tract of land was originally considered as one tract, forty-three feet on Atlantic avenue by one hundred and fifty feet in depth, nor can it be doubted that at least from March 29th, 1923, the date of the affidavit to the application for a permit to build, the premises were considered by the owners as ten separate lots, upon which ten buildings were to be erected.

The three buildings on Atlantic avenue are enclosed by outside walls projected from one to two feet above the roof; between each two of the houses there is a party wall through which the division lines coincide closely, if not exactly, with the centre Tines of said walls. These party walls project about six inches above the roof. The situation is similar in the seven houses on Metropolitan avenue.

None of the mechanics’ liens, saving that of Abel, apportioned the charges or claims to the respective tracts.

It is evident that at least two buildings were erected entirely separate and distinct from each other, ^and at least six feet apart.

It is also quite evident that the structure on Atlantic avenue could be considered as three buildings, while, as regards its exterior walls, it was one building; it was in,every other sense divided into three separate buildings, and, likewise, the structure on Metropolitan avenue could be considered as seven separate buildings.

“The word ‘building’ connotes normally matters of construction.” Fortesque v. Carroll, 76 N. J. Eq. 583.

The first section of “An act to secure to mechanics and others payment for their labor and materials in erecting any building” (Eevision of 1898), chapter 226, laws 1898, paragraph 538, provides: “Every building hereinafter erected or built within this state shall be liable, * * * which debt

shall be a lien on such building and on the land whereon it stands, including the lot or curtilage whereon the same is erected,” and is in the same words as recited by the chancellor in Morris County Bank v. Rockaway Amusement Co., 16 N. J. Eq. 150, and which he held (at ¶. 161), “a claim filed upon separate buildings and upon distinct lots of land, without apportioning the claim and designating specifically the amount claimed upon each, is not a compliance with the statute, and must be postponed to the claims of other encumbrancers. The case does not call for the decision of the question, whether the lien would have been' valid if all these buildings had been upon the same tract, and no decisive opinion is intended to be expressed upon that point. It was stated, upon the argument, that that question has been passed upon by the chief-justice and other justices of the supreme court at the circuits. I apprehend it will be found that those decisions apply only to the cases where the buildings are within the same curtilage, and mere appurtenances of the main building, so that a lien npon the main building would of necessity include the others. But I purpose hazarding no opinion which may conflict with any deliberately expressed opinion of the justices of the supreme court, regarding it as highly important that, npon the construction of a statute so widely operative, practitioners should not be embarrassed, and the rights of parties prejudiced by conflicting judicial opinions.'”

Mr. Luce, in his N. J. Mech. Lien L. {3d ed.) 1923 (at p. 230), says:

“If a lien claim fails to make the necessary apportionment, and to designate specifically the amount claimed on each building, it will constitute no encumbrance on the premises. Morris County Bank v. Rockaway, &c., Co., 16 N. J. Eq. 150. But such a defect may be amended at any time before judgment. James v. Van Horn, 39 N. J. Law 353; and see § 19, supra. But, if not amended, the judgment would be subject to collateral attack. Morris County Bank v. Rockaway, &c., Co., supra.
“It was questioned, in the case last cited, whether such a lien claim would be valid, in case all the buildings are on the same tract; but, as all buildings were, in fact, on different tracts, no opinion was expressed on the question adverted to, although it was intimated by the Chancellor [Creen] that such a claim would be bad, unless the buildings upon the same tract were within the same curtilage and mere appurtenances of a main building.
“Where several buildings (such as a row of apartments or tenements) are erected for a single owner upon what is really a single plot of land, it may be questionable whether there is any need of an apportionment at all. As this is a question likely to be presented frequently in practice, the writer ventures the advice that the only safe course is to make such apportionment whenever it is possible to do so, since each such tenement is capable of being separately conveyed or encumbered, and, therefore, the owner is entitled to have the claim apportioned so as to preserve to him the valuable right, freely to deal with his property as several parcels, if he chooses. It may not be entirely correct, but it may he practically so, to say that the possibility of allotting a definite curtilage to each tenement will determine the necessity of making an apportionment. -By this test a four-story building with an apartment on each floor is indivisible, but a row of tenements is not. A building may be divided by a vertical, but not by a horizontal, plane, for the purpose of such apportionment.”

The facts in Johnson v. Algor, 65 N. J. Law 363, upon which, apparently, Mr. Luce bases his advice just cited, were that a mechanics’ lien was claimed “upon a certain continuous row of brick dwelling-houses, one Irundred and ninety-three feet eight inches long, in front and rear, and thirty-six feet deep, situate on the south side of Elm street, between Seventh and Eighth streets, in the city and county of Camden and State of New Jersey, divided by party walls into sixteen dwelling-houses, having a front or width on Elm street varying from eleven feet eleven and a half inches to thirteen feet three and' a half inches each, by a depth of thirty-six feet, and two stories high, and numbered, respectively, Nos. 706, 708, 710, 712, 714, 716, 718, 720, 722, 724, 726, 728, 730, 732, 734 and 736, and upon the lot or curtilage whereon the said row of buildings is erected,” * * * “and upon each of which said buildings and the lot or curtilage whereon the same is erected,” * * * “a building lien was claimed for $46.41.”

“Only one summons was issued and one declaration filed, and sixteen separate judgments were asked for. Judgment was subsequently entered by default against the builder, Algor, for the whole amount of the claim. Pleas were filed by the other defendants. Burleigh pleaded, first, the general issue, and second, the statutory plea of no lien. Armstrong, the mortgagee, filed, first, a plea of the general issue; second, the statutory plea, and third, that the lien of the plaintiffs, if any, is subject to the lien of the defendant’s mortgages set out and mentioned in the plaintiffs’ declaration. The Security Trust and Safe Deposit Company filed pleas of the same character as those filed by Armstrong. Of the sixteen lots on which buildings were erected Armstrong' held mortgages on thirteen, and the Security Trust and Safe Deposit Company’s mortgages covered three of the sixteen lots. At the trial a nonsuit was given on the ground that one suit was brought to establish sixteen liens, when there should have been a separate siiit for each house and lot of land based upon the general lien. Whereupon the judge of the circuit court certified to the supreme court for its advisory opinion the question whether the plaintiffs should have been non-suited for bringing one suit only on their apportioned lien claim instead of sixteen separate suits.”

“At the time the materials were furnished, one D. Leonard Moore was the owner of the land upon which these houses were being erected. On March 6th, 1894, prior to the filing of the lien claims, Moore conveyed the premises to B. F. Inman, and March 7th, 1894, Inman and wife executed sixteen mortgages of $1,000 each on each of the said houses, respectively, to Edward A. Armstrong. On the same day Inman and wife conve3red all the houses to John J. Burleigh. On March 17th, 1894, Armstrong assigned to the Security Trust and Saf.e Deposit Company three of the mortgages covering premises 706, 708 and 710 Elm street, respectively^. A lien claim was filed on January 7th, 1895, claiming a building lien on.sixteen city^ dwelling-houses and lots in the city of Camden, apportioning $46.41 to each house. The houses and lots are contiguous and adjoining.”

The chief-justice stated: “The act provides that the suit shall be brought against the builder, and also the person who is the owner of the building and lands at the time the lien claim is filed, and further provides that every person holding a mortgage of record against the property affected by the lien claim, whose mortgage would be cut off by a sale under the lien claims, shall be made a party or parties defendant.” P. L. 1881+ p. 260; Gen. Siai. p. 2072 (now part of section 23 of the 1898 act). “All the mortgages in this case were subsequent to the commencement of these buildings.” The second section of the act of 1884 (now part of section 24 of the 1898 act) “after providing for the mode in which mortgagees shall be summoned and the pleas to be filed by them, provides that the judgment recovered shall determine the priority of the liens of the plaintiff and of each of the mortgagees; and if the lien claim shall have priority over the mortgages, the mortgagees shall be paid out of the surplus monejs realized from the sale after paying all concurrent liens. Where the lien claim covers a number of buildings and the lots on which they are erected, and each lot is encumbered by a subsequent mortgage, the holder of such a mortgage is interested only in the determination of the amount that shall be due to the plaintiff on his lien claim on the particular lot upon which he holds his mortgage. So, also, where the property consists of lots whereon separate buildings have been erected, and the ownership of lots has changed since the buildings were commenced, the person who is the owner when the lien claim was filed is interested only in the litigation with respect to the lien on his own property. To meet the contingencies that may arise in this way the legislature, by an act passed in 1873, provided “that whenever any person or persons shall hereafter furnish any materials or perform any labor for the erection or construction of two or more buildings, where such buildings are built and constructed by the same person or persons, it shall be lawful for the person or persons so furnishing such materials -or performing such labor to divide and apportion the same among the said buildings in proportion to the value of the materials furnished to or labor performed for each of said buildings, and to file with his, her or their lien claim therefor a statement of the amount so apportioned to each building in lieu of the bill of particulars required by the eleventh section of this act, which said lien claim, ivhen so filed, may be enforced under the provisions of this act in the same manner as 'if said materials had been furnished and labor performed for each of said buildings separately,” &c. P. L. 1878 p. 71; Gen. Stat. p. 2066 § 17 “(now section 22 of the 1898 act),” and held that the plaintiffs were properly nonsuited, unless the infirmities could be cured by amendment.

It certainly follows that, if it had not been necessary to apportion, a plaintiff could not be nonsuited for not filing separate declarations after attempted apportionment.

That an apportionment is necessary in like cases is implied in Crane v. Brighton Mills, 98 N. J. Law 308: “The proofs show that the Brighton Mills Company was the owner of a tract of land; * * * that it made a contract with the Berridge Company to erect twelve frame buildings upon this tract.”

It was urged, as a reason for reversal, “that as the materials had been furnished "for use in twelve different buildings, the plaintiff was bound to show a pro rata distribution of bis lien claim among the various buildings embraced in it, and that the distribution was based upon the apportionment of the deliveries among the houses covered thereby.”

The chief-justice said: “The motion, we think, was properly denied, so far as this contention is concerned. The lien claim was offered in evidence, and that 'showed an equal distribution of the whole claim among the twelve houses which were being constructed on the Allwood tract, and there was proof, in addition, that these twelve houses were substantially alike in construction. These two pieces of testimony, taken together, made it a question of fact to be determined by the jury, whether or not there was an equitable distribution of the plaintiff’s claim among the twelve buildings for which the materials were furnished.”

Assuredly, this language would not have been used unless it was necessary to prove an apportionment as having been made.

It follows that an apportionment was necessary in the situation presented by the facts existing in this case, and the master was correct in reporting the mortgages held by the Atlantic Safe Deposit and Trust Company and the Atlantic Mortgage Company were prior to the mechanics’ lien claims filed, in which no apportionment had been made.

The exceptions to the master’s report are overruled, and the said report is confirmed.

Copy of map annexed to the original omitted.


source: Caselaw Access Project

author: Ingersoll, V. C.

license: Public Domain

text:
    Piggly Wiggly Delaware, Incorporated, complainant, v. Elwood S. Bartlett, defendant.
    [Determined May 18th, 1925.]
    1. When promoters, in anticipation of the formation of a company, themselves buy property in order to make it over to the company on its formation, whether the company is entitled to claim the benefit of the bargain made by the promoter, may depend on whether the promoter buys the property with his own money, or with money that is, in effect, subscribed for the share capital.
    2. Evidence examined, and held that there was no trust obligation between the promoter and the company by which the company could claim the profits made by the promoter in the sale of stock of no par value issued to him as the consideration for the sale of the company property purchased by him with his own money.
    On bill fox xelief. On final heaxing.

      Messrs. Cole & Cole, fox the complainant.

      Messrs. Bourgeois & Coulomb, for the defendant.
   Ingersoll, V. C.

Several years ago one Clarence Saunders, of Memphis, Tennessee, “evolved and developed a system of vending merchandise, a system of store records, original advertising methods and matters for use as a part of said system, as well as rules and regulations for its establishment and conduct, and various instrumentalities, and adapted others to be employed to advantage in its operation, and conceived and adopted an original and arbitrary name for said system, to wit, ‘Piggly Wiggly/ and established stores, and created a business, goodwill and proprietary rights in said name.”

The said Saunders sold and assigned to the Piggly Wiggly corporation, a corporation under the laws of Delaware, havits principal office in Memphis, Tennessee (hereinafter called the Memphis Company), “all rights for and within the United States in and to said system, the instrumentalities employed in its operation, the patents and application for patents for invention in, and relating to, said instrumentalities, the business established by him, the good-will belonging to said business and in and to the said trade-name -and trade-mark Piggly Wiggly.

On or about February 23d, 1922, the defendant, Elwood S. Bartlett, and one James G. Hostutler, purchased of the Memphis Company the right to operate stores under the name Piggly Wiggly, &c., in the State of Delaware. The consideration for said license was $1,000, which was paid to the Memphis Company by Elwood S. Bartlett.

The right or license was held by the purchasers in their own names, but for themselves and for one Daniel H. Weiss-man, in equal shares, one-third to each.

The defendant, Hostutler and Weissman (hereinafter called the incorporators), proceeded to incorporate the complainant company, under the name of “Piggly Wiggly Delaware, Incorporated,” which company will hereinafter be called the complainant.

In pursuance of said incorporation the three incorporators, on February 27th, 1922, signed a “subscription to capital stock prior to organization,” wherein they subscribed to said stock:

Elwood S. Bartlett, four shares.

Daniel H. Weissman, three shares.

Janies G. Hostutler, three shares.

On the .same day the incorporators signed and acknowledged the certificate of incorporation of the complainant. This certificate was received and filed in the office of the secretary of state of the State of Delaware, on March 1st, 1922, at nine o’clock a. m.

On the 4th day of March, 1922, pursuant to a written waiver of notice signed by the three incorporators, they being all of the parties named in the certificate of incorporation, and all subscribers to the capital stock met as incorporators and adopted by-laws.

The following action was taken and spread upon the minutes, as follows:

“Fifth. There was presented to the meeting the offer of Mwood S. Bartlett, of Atlantic City, State of New Jersey, and James G. Hostutler, of the city of New York and State of New York, offering to sell and assign to this corporation all of their right, title and interest to and under an agreement between them and Piggly Wiggly Delaware, Incorporated, a corporation of the State of Delaware, dated February 23d, 1922, under which the said parties secured the exclusive right to operate in the State of Delaware, the system of vending merchandise, &e., owned by said Piggly Wiggly Delaware, Incorporated, under an assignment of license from Clarence Saunders, of Memphis, Tennesee, under a patent owned by him as granted by the commissioner of patents of the United States of America on the 9th day of October, a. d. 1917, as full consideration for fifteen thousand (15,000) shares of the common capital stock of this company without nominal or par value, and upon full consideration it was, upon motion duly made, seconded and unanimously adopted:
“Resolved, That said offer 'be and the same is hereby approved, and it is recommended to the board of directors of this corporation to accept said offer and to issue said stock in payment for the property mentioned therein, said property to be accepted as full consideration and in full pajunent for said stock.”

The meeting unanimously elected the three incorporators as directors, each receiving ten votes.

At twelve o’clock noon, on said 4th day of March, 1922, the three incorporators met as directors, and, after reading and approving the minutes of the first meeting of the incorporators, elected 'the following officers:

President, Elwood S. Bartlett.

Vice-president, James G-. Hostutler.

Secretary, .Daniel H. Weissman.

Treasurer, Elwood S. Bartlett.

The following resolutions were offered and adopted:

“Resolved, That the treasurer be aud he hereby is authorized to open a bank account in behalf of the corporation with such banking institutions as he may select.
“Further resolved, That, until otherwise ordered, said bank be and hereby is authorized to make payments from the funds of this corporation on deposit with it upon and according to the cheek of this corporation signed hy its treasurer.
“Resolved, That this corporation accept the offer of Mr. Elwood S. Bartlett and .Tames G. Hostutler to sell to this corporation the property described in the resolution of the incorporators passed at a meeting held this day recommending the purchase thereof, and the board of directors do hereby adjudge and declare that said property, is of the value of the full consideration of fifteen thousand (15,000) shares of the common capital stock of this corporation without nominal or par value, and that the same is necessary for the business of the corporation.
“Further resolved, That the president and treasurer be and they hereby are authorized and directed to issue the full paid capital stock of this corporation to the aggregate amount of fifteen thousand (15,000) shares of the common capital stock of this corporation without nominal or par value to Elwood S. Bartlett and Tames G. Hostutler, or to such person or persons as they may direct in writing, upon receipt of said assignment as, in the opinion of our general counsel, may be sufficient to secure to this company the rights, hereby purchased, in consideration of said sale.”

Up to this point no one other than the three incorporators had any interest whatever in the complainant. Bartlett had personally advanced the money to purchase the license rights, and no subscription to stock had been made by any person other than the three incorporators.

On March 10th, 1922, Bartlett and Hostutler assigned to the complainant all their rights and title, including Weiss-man’s interest, under the agreement with the Memphis Company.

The Memphis Company refusing to acknowledge an assignment, or do business with an assignee, upon Bartlett and Hostutler delivering to it for cancellation their agreement, made, executed and delivered to the complainant its contract No. 4234, conveying for the consideration of one dollar the rights theretofore granted to Bartlett and Hostutler, and which Bartlett and Hostutler had assigned to the complainant.

A. campaign was then instituted for the sale of stock. The subscription blanks furnished and used by the incorporators were in the following form:

“Tlie right is reserved to reject subscription should the allotment of stock offered at this price be sold prior to receipt of this subscription.
“Subscription
For Preferred and Common Stock of the
Piggly Wiggly Delaware, Inc.
Incorporated in Delaware,
4057-59 duPont Building.
Phone 1105.
“Date.'...................
“I hereby subscribe for-shares of 8% Cumulative Preferred Stock Par $10.00 and..........shares Common Stock no par value [all stock fully paid and non-assessable] for which I agree to pay $...........
“This constitutes the entire contract, Piggly Wiggly, Delaware, Inc., not being bound by any agreement not herein embodied. No delivery of stock shall be made hereunder until the total amount of subscription is paid in cash. Any assignment of this subscription shall carry with it all rights and obligations of the undersigned.
“Name..........................
“Address.........................
“Representative..................City and State..................
“Responsible only for remittance made payable and received by Piggly Wiggly Delaware, Inc.
“The undersigned hereby acknowledges that he has received of ...................the sum of $............, the same being payment of his subscription for............shares of the capital stock of Piggly WIggly Delaware, Inc. 19 “Representative.

All moneys arising from the sale of preferred and common stock was received by Bartlett as treasurer of the company, and deposited in the accounts of the company.

The amounts received for the sale of common stock were withdrawn by Bartlett as treasurer of the company by check to his order as trustee. He then deposited these amounts to his credit as trustee of and for the three incorporators. From this account he paid expenses, including commissions, office rent, stenographer, printing, advertising sale of stock, and all other expenses of the sale of both common and preferred stock, and divided the remainder in approximately equal shares between himself, Hostutler and Weissman.

The sale of the common stock aggregated about $100,000, from which was paid for expenses $51,305, the balance of $48,694.98 remaining was divided between the three, as follows :

To Bartlett, $15,348.24.

To Weissman, $18,028.31.

To Hostutler, $15,318.31.

There were certain additional expenses, which Weissman had 'paid, or was to pay, which would reduce the amount received and retained by him to approximately the same amount as that received by each of the others.

The bill is tiled by the company, and the decree sought for is that the defendant restore to its treasury the amount of money paid into it by purchasers of its common stock, and, subsequently, withdrawn by the defendant.

Counsel for the complainant in his brief says: “We concede that there is respectable authority which denies the right of the corporation in like circumstances to maintain a bill, but there is also respectable authority which upholds the right, and we contend that such is the rule in New Jersey.

It seems sufficient to cite Arnold v. Searing, 78 N. J. Eq. (at p. 146), and cases there cited.

Vice-Chancellor Green, in Plaquemines Tropical Fruit Co. v. Buck, 52 N. J. Eq. 219 (at p. 230), said:

“I take the law, applicable to this case, to be that bio rights, legal or equitable; arise in favor of a corporation in respect of transactions, whether complete or inchoate, merely because entered into in contemplation of the creation of such corporation,’ and that it was open to Dr. Buck to buy the property on his own account, for any price he could, with the intention or in the hope of selling it at a higher price to a company to be formed, and, dealing independently, to sell it for such higher price to such company so long as he obtained his higher price fairly. ' That would be clearly unobjectionable. But if he, at the time of his original agreement with White, entered into it on behalf of the future company, under such circumstances that the company, when formed, could say that the purchase made by him was made for the company, or if, at the time the actual purchase was made from White, Dr. Buck was a trustee, officer or agent of the company, he cannot be permitted to make any profit from the sale to the company.”

Vice-Chancellor Howell, in Arnold v. Searing, supra, relied upon by the complainant, as being authority which upholds the right of the corporation to maintain the suit, in discussing the form of the suit said (on p. 161) :

“As the bill now stands, it is a bill filed by stockholders and by the receivers of the insolvent corporation, in which they attempt to enforce a cause of action which they claim runs to the corporation. In other words, they are prosecuting in the right of the corporation. The defendants assert that the cause of action does not run in favor of the corporation, and that it, as a legal entity, has no interest in the transaction, and that taking the charge against the defendants at its utmost weight the corporation itself has no right or interest in the transaction to be protected.

“The complainant’s theory in that case was that The defendants, while they were holding a fiduciary relationship toward the steel company, took and assisted others to take bonds of the company without consideration, * * * all without the knowledge of the company or the syndicate shareholders, and that the defendants should pay the value of the bonds and stock so taken, and that in this view the right of action accrues in favor of the corporation.’ ”

The vice-chancellor proceeds: “I take it the doctrine contended for by the complainant on this branch of the case is settled in this state in favor of the complainant.”

Vice-Chancellor Howell in the same case quoted the late Chancellor Pitney in Bigelow v. Old Dominion Copper Mining and Smelling Co., 74 N. J. Eq. 457. “In many cases promoters, in anticipation of the formation of the company themselves, buy property in order to make it over to the company upon formation. "Whether the company in such cases is entitled to claim the benefit of the bargain made by the promoter is often a question of nicety, and may depend xipon whether the promoter buys the property with his own money, or with money that is, in effect, subscribed for the share capital. It may be thus, in effect, subscribed before the formation of the company, as in the case with many syndicates, in which event the promoter may be a trustee with respect to the property for the company thereafter to be formed, on the theory that the property was bought for the company.”

The chancellor, in discussing the liability of Mr. Bigelow, states (on p. 496) : “But certainly he would be liable as a promoter acting in a fiduciary capacity, if we take Mr. Justice Sheldon’s finding as true. The liability of promoters is fully recognized in this state.” Plaquemines Tropical Fruit Co. v. Buck, 52 N. J. Eq. 219, 230. This citation is the rule previously stated by me. In that case the court said: “All these facts, in my judgment, give the company the right to say that the purchase originally made was made for it.” It was further found in that case that no disclosure of the existing facts were made to the then stockholders or to the directors of whom only three of the gentlemen elected were present.

In Woodbury Heights Land, Co. v. Loudenslager, 55 N. J. Eq. 78, 58 N. J. Eq. 556 (at p. 87), Vice-Chancellor Pitney said: “At the time of the transaction none of the directors, except defendant and Dr. Roe, had any knowledge’ or notice that this profit was marie, and, so far as appears, none of the stockholders, except the same gentlemen * * * and two of the grantors to defendant, had any knowledge of it.

“No money was paid by the defendant or Dr. Roe, or either of them, to the vendors at the delivery of their several deeds. The consideration actually paid went from the corporation through the hands of defendant to the several vendors or their creditors.”

The case of See, Receiver, v. Heppenheimer, 69 N. J. Eq. 36 (at p. 75), the court said: “I cannot hold that the judgment of the directors was an honest one in the proper sense of that word, but I must find that it was exercised directly in the interest of their friend, Mr. Samuel Untermeyer, and his associates.”

In Erlanger v. New Sombrero Phosphate Co., 3 L. R. App. Gas. 1218 (at p. 1264), Lord Blackburn said: “My lords, in this suit the plaintiffs being a limited company, and suing as such, can only ask for relief on grounds affecting them in their corporate capacity. If individuals were deceived by misrepresentations a case might exist entitling such individuals to be personally relieved against the consequences of such misrepresentations, but the company would not have any title to be relieved on account of such misrepresentations to individuals, especially if the misrepresentations were made by those who at the time represented the company. All this is clearly stated by Lord Gottenham in your lordship’s house in Vigers v. Pike.”

Lord Hatherley (at p. 1242) said: “In the first place, the plaintiffs endeavored to set aside this contract on the ground of the persons who sold the property having filled a fiduciary position as actual trustees for the company was formed, and being disentitled to participate in any profit which could be made in the sale in consequence of that trusteeship. The court below, as well as, I believe, all your lordships, have been of opinion that they were in no such sense as that trustees for the company; and that which has been called the syndicate * * * were entitled to hold that purchase as a syndicate, and to deal , with it as they thought proper.”

Lord Hatherley continued: “Secondly, my lords, it was urged in this case, and upon this point also the court were agreed, that although the purchase so made was not liable to be interfered with on the ground that I have stated as being a purchase made by persons who were trustees for the company, nevertheless, it was liable, if due steps were taken at the proper time, to be impeached upon other grounds disclosed by the bill and sustained by the evidence.”

Lord Cottiugham’s statement in Vigers v. Pike, 8 Cl. & F. 562, found on p. 647 (8 Eng. Rep. 220, 252), referred to by Lord Hatherley, was: “If any individuals were deceived by any misrepresentations of the persons so constituting and calling themselves directors of ‘the West Cork Mining Company/ a case might exist entitling such individuals to be personally relieved against the consequences of such misrepresentations; but the company itself cannot have any title to relief founded upon their own misrepresentations. The bill, indeed, does not charge that the company were deceived, but that the representations were ‘a fraudulent contrivance to plunder the subscribers to the company.’

“The bill, therefore, more strangely, in stating a case on behalf of the company, complains of acts of the company itself, calculated, as is alleged, to deceive individual subscribers.

“How far the governing body conducted the affairs of the company with integrity and judgment, it is out of place to consider, for beyond all doubt these acts were the acts of the company, and although a ease may be supposed, in which the governing body of joint stock company, or the acting partners of a firm, may so unite with a stranger in practicing fraud against the company for whom they act as to entitle the company to interfere and to repudiate such acts, and to ask to be relieved against them, such is not the case as stated upon this bill * * *.

“Against such misrepresentations, if they had been proved, the company as such could have no relief.

“The remedy, if any, must have been sought by those who were not parties to such misrepresentations, but who were deceived and defrauded by them.”.

• A recapitulation of the facts as proven:

Bartlett paid for the license right, granted by the Memphis Company with his own money, and Weissman and he held the same for themselves and Hostutler.

The three incorporated the complainant company after having subscribed for ten shares of stock.

The certificate of incorporation provided for two classes of stock—first, fifteen thousand shares of common stock of no par value, and second, fifteen thousand shares of preferred stock of the par value of ten dollars ($10) per share.

The common stock entitled the holder thereof to vote in the management of the company. The preferred stock provided no such power, except under condition which has not become effective, at least, had not at the time of the acts complained of.

At the time of the first meeting of the incorporators, the three being the only parties interested, with full knowledge of all facts connected with the transaction, agreed that the company should purchase of themselves (Bartlett and Hostutler holding the title) the contract with the Memphis Company, in consideration of the issuance by the company to Bartlett and Hostutler or their nominees of all of the said common stock of no par value.

The same three were elected by themselves as stockholders, as the only directors of the company, and as such directors proceeded to, and did, make the purchase of said contract with the Memphis Company, and did authorize the issuance of said common stock to Bartlett and Hostutler or their nominees.

By assignment and order of Bartlett and his associates, the Memphis Company assigned to the complainant the right theretofpre assigned to Bartlett and Hostutler, and by them canceled for the nominal consideration of one dollar. The real consideration being the cancellation by Bartlett of the agreement, for which he had paid $1,000.

At that time the corporation had no other assets whatever, and as the common stock had no par value, each share therefore only represented in value one-fifteen thousandths of the assets of the company, and as the company only had assets for which Bartlett paid one thousand dollars ($1,000), there being no evidence whatever that this was an improper amount to pay for the rights purchased, each share could well be said to be worth one-fifteen thousandths of one thousand dollars ($1,000), or six and two-thirds cents ($.06f).

No person other than the three incorporators had any interest in this corporation or its stock or assets, until the first sale of stock to others, which took place after the events before set out.

Bartlett was not a trustee for the company. All the stockholders and directors of the company had full knowledge of all the facts, and he and his associates had received no profit, concealed or otherwise, from the company by reason of the sale of the rights in consideration of the issuance of the stock of no par value. Tt is unnecessary to now determine what effect, if any, would have resulted had the stock had a par value, and the company had issued stock of more than one thousand dollars ($1,000) face value.

It might well be contended that future subscribers to the stock might have complained, because of the failure to have an independent board of directors, had Bartlett and his associates received from the company a larger sum than had been paid for the contract.

Continuing the recapitulation of the facts proven:

A campaign for the sale of the stock was instituted by the corporation or the three incorporators, agents and salesmen were engaged, forms of subscriptions were prepared, an office opened with clerical force engaged, stationary and other printing and advertising ordered. A reading of the subscription blanks might cause the belief that the company was selling both the preferred and the common stock, and the fact was that Bartlett, as treasurer, handled the funds as though the preferred stock was treasurer stock, as it was, and the com-mon stock was the property of himself and his associates, as it was under the statements of facts proven.

The money received from the sale of the common stock, as well as that from the sale of preferred stock, was deposited in the funds of the company.

That received from the sale of preferred stock was retained in the funds of the corporation, and no complaint is made as to any withdrawals, or payments made therefrom.

The funds, received from the sale of the common stock was withdrawn by Bartlett as. treasurer' of the company, and deposited by him as trustee for himself and his associates.

From this fund all expenses of the sale of the preferred stock (as well as the common stock), including commissions, expenses of office, and of printing and advertising were paid, and the balance received divided between the three interested.

There was, approximately, $100,000 received, over $50,000 paid out for expenses and the balance divided.

The preferred stock was sold at par, and the common stock for different amounts per share, ten dollars ($10) per share, however, being the usual amount and the profits Bartlett and his associates received was the difference in the amounts received by him and them, and the amount he paid for the license rights and the other expenses.

Complaint is made that Bartlett had no authority to withdraw the funds after they had been deposited in the accounts of the company. In these proceedings it makes no difference whether he had or had not formal authority from the board of directors, if, in fact, the right to the money or the possession thereof was not in the company, but was in him.

There was a full bona 'fide consideration for the sale by the company to Bartlett and his associates of the fifteen thousand shares of the capital stock of no par value. Had this stock had a par value, and had stock of par or face value exceeding the value of the rights purchased been issued, a different question would arise.

I find, therefore, that the only case cited and the one relied upon by the complainant (Arnold v. Searing, supra), does not sustain the contention of the complainant, and that the facts in this case are insufficient to sustain an action by the corporation as such against Bartlett.

It is unnecessary to comment upon what the situation might or would be should a purchaser of stock for a bona fide consideration file a bill alleging fraud.

I will advise a decree dismissing the bill.


author: Walker, Ordinary.

text:
    In the matter of the estate of Joseph Bloechl, deceased.
    [Decided March 31st, 1925.]
    1. While penal statutes are to be strictly construed, this is subject to the rule that the intent and object of the legislature will prevail over the strict letter of the act.
    ,2. Where some collateral matter arises out of the general words of a statute and happens to be unreasonable, it is to be concluded that the consequence was not foreseen by the legislature, and the act is to be expounded by equity and disregarded in that matter quoad hoc.

    3. The provision in the Transfer Inheritance Tax act (P. L. 1909 p. 325 § 19), that an appraiser in the inheritance tax bureau of the comptroller’s department who shall take any fee or reward from any person liable to pay any tax under the provisions of that act shall be guilty of a misdemeanor, does not apply to an attorney-at-law, who happens to be such an appraiser, and who receives a counsel fee from the estate of a decedent which is liable to such tax, but does nothing whatever as an officer or representative of the bureau in relation to the estate.
    On appeal from a decree of Morris orphans court, disallowing counsel fee.

      Mr. Martin R. O’Keefe, for the appellant.
   Walker, Ordinary.

The appellant, Mary E. Comte, administratrix of Joseph Bloechl, deceased, made and filed with the surrogate of Morris county her final account as such administratrix, in which she prayed allowance for the payment to Martin R. O’Keefe, Esquire, an attorney and c'ounselor-at-law of this state, of the sum of $125 as counsel fees for services rendered by him to the appellant with regard to the estate. The orphans court disallowed the counsel fee to Mr. O’Keefe, stating, as a reason, that at the time of rendering the services and receiving payment he was district supervisor and appraiser for Morris county of the interitanee tax bureau of the department of the comptroller of the treasury of this state, and that such payment appears to be prohibited by law.

The transcript of the record of this matter submitted on appeal shows that Mr. O’Keefe appeared as attorney of record in the proceedings before the orphans court with regard to this estate, and that he did nothing whatever with reference to the estate in his capacity as district supervisor or appraiser for the transfer interitanee tax bureau, but, on the other hand, the estate was appraised for the bureau by another of its representatives.

The only law which in any way may be said to forbid the payment of a counsel fee to Mr. O’Keefe, in the circumstances, is section 19 of an act entitled, “An act to tax the transfer of property of resident and non-resident decedents by devise, bequest, descent, distribution by statute, gift, deed, grant, bargain and sale, in certain cases, approved April 20th, 1909” (P. L. 1909 p. 325), the pertinent part of which section provides as follows:

“An appraiser, appointed pursuant to the provisions of this act, who shall take any fee or reward, either directly or indirectly, from any executor or administrator, or any other person liable to pay any tax or any portion thereof, under the provisions of this act, shall be guilty of a misdemeanor, and on conviction, shall be punished by a fine not exceeding $1,000, or by imprisonment not exceeding one year, or both, at the discretion of the court, and, in addition thereto, the comptroller of the treasury of this state shall immediately dismiss such appraiser from his employment.”

It is contended by appellant that the Transfer Inheritance Tax act, or at least section 19 thereof, is unconstitutional because violative of article 4, section 17, paragraph 4 of the constitution, which provides that every act shall embrace but one object, and that shall be expressed in the title.

This contention, I think, is answered by the court of errors and appeals in State v. Twining, 73 N. J. Law 683. The defendant there had been convicted in the Monmouth quarter sessions upon an indictment charging him with violation of one of the provisions of section 17 of an act entitled “An ■ act concerning trust companies”- (Revision of 1899), which made every director or officer who willfully or knowingly submitted or exhibited any false paper with intent, &c., guilty of a high misdemeanor. Chancellor Magie, writing the opinion (at p. 689), said that the legislative purpose necessarily included regulation of those who directed or acted for such companies and the enforcement of such regulations; that enforcement is usually provided by enactments for penalties for a breach of the regulations, which Blackstone calls the sanction of the law, and that it seems necessarily included in the title which expresses the object to be to regulate certain corporations. The judgment was affirmed. Now, plainly, corporations cannot be regulated except through the acts of their officers and agents, and, equally, taxes cannot be levied and collected without governmental machinery, which can only function through the acts of officers and employes of the taxing power. If a criminal act of a bank official can be made punishable under an act entitled "An act concerning trust companies,” then, surely, the provision in the act to tax the transfer of property, that any appraiser appointed pursuant to the provisions of the act who shall take any fee or reward either directly or indirectly from any person liable to pay any tax under the provisions of the act, shall be guilty of a misdemeanor, is equally valid.

The General Tax act entitled "An act for the assessment and collection of taxes” (P. L. 1903 p. 39J¡.), provides, inter alia, in section 62, that any assessor who shall willfully or through gross negligence omit to make a full and fair valuation of all property taxable in his district or to prepare and produce his duplicate as required by law, or who shall allow any deduction from the value of property for debt without having first obtained the sworn statement required by law, or willfully neglects or refuses to perform any service or duty required of him by that act, shall be guilty of a misdemeanor. Equally well might it be argued that these provisions making it criminal in any taxing officer to violate any provision of the act for the collection and assessment of taxes, are unconstitutional because the title of the act contains no hint or token of criminal proceedings for its violation. On the contrary, it may be said of the Tax act, as was said by Chancellor Magie of the Trust Companies act, that the legislative purpose necessarily includes regulation of the officers who act for the public, and the enforcement of such regulations by penalties for their violation. The contention that the title of the Transfer Inheritance Tax act is constitutionally defective is unsound.

Lastly, it is contended on behalf of the appellant that the Transfer Inheritance Tax act does not intend to penalize an appraiser under it from taking a fee for services entirely disconnected and dissociated from the exercise by him of any official duty as appraiser. And this, I think, is obviously so. While penal statutes are to be strictly construed, this is subject to the rule that the intent and object of the legislature .will prevail over the strict letter of the act. No citation of authorities is necessary to support this proposition. It is the settled law. Now, the Transfer Inheritance Tax act (section 19), which provides that if any appraiser shall take any fee or reward, directly or indirectly, from any executor, &c., liable to pay a tax under the act, he shall be guilty of a mis- _ demeanor, &c., comprehends only the taking of a fee or reward which would or might influence his conduct in the execution of his office of appraiser. In other words, it is directed at the offense of bribery. Clearly, if one of the appraisers happens to be a lawyer, and takes a fee as counsel for an estate with reference to which he performs no act whatever as appraiser under the Transfer Inheritance Tax act, he is entitled to that fee, and does not come under the ban of that act.

The court of errors and appeals has recently dealt with the question of the construction of statutes with reference to their intent and true meaning. See Donohue v. Campbell, 98 N. J. Law 755, wherein (at p. 763) the opinion of Chief-Justice Beasley, in Schroeder v. Ehlers, 31 N. J Law 44, is cited, wherein the text from 1 Bl. Com. 91 is quoted as follows:

“-Where some collateral matter arises out of the general words, and happens to be unreasonable, there the judges are in decency to conclude that this consequence was not foreseen by the parliament, and, therefore, they are at liberty to expound the statute by equity, and only quaod hoc disregard it.”

Of course, the provision in the act under consideration is meant to be that if an appraiser takes a fee or reward in connection with an appraisement he is called upon to make for the bureau, he is guilty of a misdemeanor; but if a man who happens to be an appraiser happens, also, to be an attorney, and takes a counsel fee for services to an estate which he is not called upon to appraise, and concerning which he does no act in his capacity as an officer of the inheritance tax bureau, he does not commit an offense under the act in question, and, in such circumstances, the court which passes the account of the estate’s representative has no right to disallow the counsel fee on the ground that the attorney happens to be an officer of the inheritance tax bureau. To say that an appraiser, who does no appraising or any other act with reference to the estate in his capacity as an officer of the bureau, shall be guilty of a misdemeanor if he takes a fee for services as counsel to the estate which he represents, is a consequence of the act which is, at least, collateral, and could not have been in the contemplation of the legislature, and, therefore, not intended by the legislators, even if it may be said to arise out of the generality of the words of the statute.

The result reached is that the disallowance of the counsel fee will be reversed, and the cause will be remitted to the orphans court with direction to allow it.


author: Gummere, Chiee-Justice.

text:
    Frank D. Follansbee v. Mayor and Aldermen of Jersey City et al.
    [Decided March 16th, 1925.]
    Where a municipality takes proceedings to condemn real estate for public purposes, the same being in the possession of a lessee, and later abandons the condemnation proceedings, and agrees with the owner of the land for the purchase thereof, and receives a deed therefor from him, and pays the consideration agreed upon between them to the ’Owner, such deed does not in any way affect the rights of the lessee in said premises, but merely passes the right, title and interest of the lessor in the land conveyed.
    On appeal from a decree in chancery advised by Vice-Chancellor Bentley.

      Messrs. Darling, Barnes & Dowden, for the Darling Realty Corporation, appellant.

      Mr. Thomas J. Brogan, for the city of Jersey City, respondent.

      Messrs. Fisk & Fisk, for Follansbee, respondent.
   The opinion of the court was delivered by

Gummere, Chiee-Justice.

The complainant, Frank D. Follansbee, was the lessee of certain propert}' located on Bergen avenue, in the city of Jersey City, for a term expiring in the year 1928; the owner of the property, and the complainant’s lessor, being the Darling Realty Corporation, the present appellant. The city of Jersey City, having resolved to widen that portion of Bergen avenue upon which this property fronted, passed an ordinance for that purpose, and thereafter sought to acquire by condemnation so much thereof as was required for the proposed widening of the street. Both the owner and the lessee were given notice by the municipality of its purpose to acquire this strip of land, and were each of them afforded a hearing before the assessment commissioners with relation to the value of their respective interests in the land to be taken; the commissioners being the statutory agents in the condemnation proceedings. As a result of this hearing an award was nfade to the Darling Realty Corporation of $58,565, the land taken being valued at $25,000, the buildings at $28,000, and the cost of removing the buildings being fixed at $5,565. No award, however, was made to Follansbee, the owner of the leasehold interest in the land taken. At the same time that the award was made to the Darling corporation the assessment commissioners deducted from that amount the sum of $19,050, which they assessed against the owner of the property for the benefit received by the remaining portion thereof through the widening of Bergen avenue. The Darling corporation, considering that this assessment for benefits was grossly excessive, appealed therefrom to the circuit court of Hudson county, and while the appeal was pending the municipal authorities, on the one hand, and the Darling corporation, on the other, adjusted and settled their differences with relation to the assessment, with a result that the city agreed to accept from the Darling corporation a conveyance of the land proposed to be taken, and to pay therefor a consideration of $53,000. This offer having been- accepted by the Darling corporation, the contract of sale was thereupon executed by the delivery to the municipality by the Darling corporation of a deed conveying all its right, title and interest in the land involved in the condemnation proceedings, and the payment to the Darling corporation by the municipality of the sum of $53,000 as a consideration for that conveyance. The matters in controversy between these two parties having been settled in the way indicated, the municipality thereupon notified Follansbee to quit the possession of the premises, threatening to eject him therefrom unless he left voluntarily. Follansbee thereupon filed the bill in the present case against the municipality and the Darling Realty Corporation, as co-defendants, setting up the institution of the condemnation proceedings, averring that, as a result thereof, the assessment commissioners had awarded the Darling corporation the full value of the premises sought to be condemned—namely, $53,000—and that the municipality had paid the amount of that award to the Darling corporation for his and its benefit, as their interests might appear, and praying a decree compelling the Darling corporation to pay over to him out of the amount awarded to it the value of his leasehold interest; or, in the alternative, to compel the municipality to pay him that value as a prerequisite to its taking possession of the property held by him under the lease.

Upon the hearing before the learned vice-chancellor, the proofs submitted satisfied him that the amount paid to the Darling corporation by the municipality was the full, fair value of the whole property which was condemned; that it represented the interest in that property both of the lessor and the lessee; that the realty corporation had received it in full settlement of the interests which it and its lessee had in the property; and, as a result of this conclusion, he directed the Darling corporation to pay to the defendant the value of this leasehold interest, which the court fixed at $6,120. From this decree the Darling corporation has appealed.

For the purpose of disposing of this appeal, it is not necessary to consider whether, under the facts found by the vice-chancellor, any ground for equitable relief appears; that is, whether, where the owner of land accepts from .the party acquiring it by condemnation proceedings not only the value of his interest therein, but also the value of the interest of his lessee, and holds so much of the moneys as represents the value of the lessee’s interest for the latter’s benefit, the amount of the value is to be fixed by a court of equity rather than by a jury in a court of law; and the reason why it is not necessary to determine this question is that'the learned vice-chancellor, probably through the failure of counsel to impress the facts upon him, assumed that the moneys paid to the Darling corporation and received by it represented the compensation to be paid by a condemning agency for the acquisition of land through the exercise of the power of eminent domain, whereas the undisputed facts are (as has already been indicated) that the attempt to acquire the land in question by the exercise of the power of eminent domain was voluntarily abandoned by the condemning agency, after award made—so far as any interest of the owner thereof was concerned, and that in lieu thereof a contract for the purchase and sale of such interest was entered into between the parties, which, in due course, was executed by the delivery of a deed and the payment of the agreed-upon amount of purchase-money. It is hardly necessary to point out that all that could pass under such a grant, and, in fact, as appears from the deed itself, all that was attempted to be passed thereby was the right, title and interest of the lessor in the land conveyed, leaving the leasehold interest of the complainant undisturbed. Such a conveyance, even if purported to do so, could not affect, much less extinguish, the interest of a lessee in the land, or deprive him of his right to the possession and enjoyment of his leasehold estate. The only way that right can be acquired by the municipality is either by purchase thereof from him or by proceedings to condemn it. It has not as yet been acquired by either method. Any attempt, therefore, on the part of the municipality to interfere with the possession and enjoyment of this property by Follansbee, as lessee, would be a mere trespass, which, if persisted in, would be enjoined by the court of chancery.

The decree appealed from, so far as it imposes upon the appellant, the Darling Realty Corporation, any obligation to pay over to the complainant, Follansbee, any part of the purchase-money received by it for the premises from the municipality of Jersey City will be reversed.

For affirmance—None.

For reversal—The Chief-Justice, Trenchard, Parker, Minturn, Kaliscii, Black, Katzenbaci-i, Campbell, Lloyd, White, Gardner, Van Buskirk, Clark, McGlennon, Kays, JJ. 15.


author: Gummere, Ci-iiee-Justice.

text:
    Ella A. Randolph, v. General Investors Company.
    [Decided March 16th, 1925.]
    1. An undisclosed principal cannot be held liable on a contract for the sale of land executed by an agent in his own name and under his own seal.
    2. The memorandum in writing of a contract for sale of land must contain the names of the buyer and seller, the' subject of the sale, the price and terms of credit and the conditions of sale, if any there be, and parol testimony cannot be received to supplement the memorandum, or supply omission of any of the essential parts of the contract.
    3. "Where a contract for sale of land purports on its face to be made by one as principal, it cannot be shown by parol that he was merely the agent for another. '
    On appeal from a decree in chancery .advised by Vice-Chancellor Church, whose opinion is reported in 96 N. J. Eq. 227.

      Mr. Absalom, P. Bachman, for the appellant.

      Messrs. R. E. & A. D. Waison, for the respondent.
   The opinion of the court was- delivered by

Gummere, Ci-iiee-Justice.

The present suit was brought to compel the specific performance of a contract for the sale of five lots of land located in the county of Middlesex, made bjr and between the complainant, Ella A. Randolph, as vendor, and the General Investors Company as vendee. The contract was in writing. It recites that the vendor of the land described therein is Ella A. Randolph, and that the vendee thereof is the General Investors Company, a corporation organized and existing under and by virtue of the laws of the State of New Jersey. It was signed and sealed by Mrs. Randolph, the owner of the property, as party of the first part, and was executed by the General Investors Company, as party of the second part, by the signing of the corporate name thereto by its president and the affixing of the corporate seal, the signing and sealing being attested by the secretary of the corporation.

The bill was originally filed against the Investors. Company as the sole defendants, but upon the hearing had before a vice-chancellor matters were developed by the testimony of witnesses which led the complainant to believe that, in the making of the contract, which was the subject of the litigation, the Investors Company was not acting for itself, but as agent of one- Frank Colton. Application was thereupon made to the court by the complainant for the staying of the hearing and fo-r leave to amend her bill by joining Co-lton as a defendant. The application was granted; the bill was amended in the respect indicated; Colton answered, denying that the General Investors Company was acting for him a a his agent in making the contract, and asserting that it was acting in its oven behalf, as the intending purchaser of the land described in the instrument. The hearing having been continued on the amended and ne-w pleadings, and further parol testimony having been taken with relation to Colton’s interest in the transaction, the learned vice-chancellor advised a decree adjudging that, in the making of the contract, the General Investors Company was acting, not for itself, but as the agent o-f Colton, although this fact was not known to the complainant at the time o-f the filing o-f the- original bill, and that Co-lton, as the undisclosed principal of the corporation, must perform the contract by accepting a conveyance o-f the land described therein and paying to the complainant the purchase-money therefor.

From the decree so advised the defendant Colton appeals.

The principal ground upon which a reversal is sought is that, even if the finding of fact by the vice-chancellor is justified by the proofs submitted to- him, the evidence was incompetent, and the decree before us canno-t be supported, for the reason than an undisclosed principal cannot be- held liable o-n a contract for the sale of land executed by an agent in his own name and under his own seal. The learned vice-chancellor does not discuss this question in his opinion, although it was argued before him, contenting himself with the declaration that, in his view, there is no merit in it. We disagree with this conclusion, and consider that the soundness o-f appellant’s contention has been settled in his favor by the earlier decisions of our courts. As has already been stated, the action is brought fo-r the enforcement of a contract under seal for the sale o-f land. The fifth section of our statute of frauds (Comp. Stcd. p. 2612) provides “that no- action shall be brought upon any contract for the sale of lands, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in waiting, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.” In construing this provision of the statute, Mr. Justice Depue, in the case of Johnson & Miller v. Buck, 35 N. J. Law 338, 343, uses the following language: “The memorandum must contain the full terms .of the contract—that is, the names of the buyer and seller, the subject of sale, the price and terms of credit, and the conditions of sale; if any there be. To supplement tins memorandum or supply the omission of any of the essential parts of the contract, parol testimony cannot be received. The policy of the statute is to> exclude testimony of that uncertain character with respect to transactions within its provisions. It therefore requires the substantive parts of the contract to appear in the writing. To admit parol evidence of any of the terms of the contract with respect to which the memorandum is silent, would open the door to the very mischief the statute was intended to suppress.” The doctrine declared in this case was approved and followed in Bowers v. Gluckman, 68 N. J. Law 146. In Schenck v. Spring Lake Beach Improvement Co., 47 N. J. Eq. 44, 49, Vice-Chancellor Van Fleet, in dealing with a case somewhat similar to that now before us, except that the parties were transposed, thus states the legal principle: “Where the action is by a vendee against a vendor, :as it is in this case, and the complainant puts his right to relief exclusively on a written contract, as the complainant does here, it would seem to be clear beyond question that, unless the writing set out in the bill shows on its face that the defendant is the vendor, the complainant’s case has no foundation.” Schenck v. Spring Lake Co. has been frequently cited with approval in later decisions by the court of chancery; it was approved by this court in Clement v. Young-McShea Amusement Co., 70 N. J. Eq. 677, 681.

The exposition of the legal principles controlling in cases of this kind, as set forth in the decisions above quoted from, meets with our entire approval. The logical conclusion to be drawn therefrom is that every written contract made by an agent, in order to be binding on his principal, must purport on its face to be made by the principal, and must be executed in his name, and not in the name of the agent, and that, consequently, it cannot be shown by parol that an alleged agent, who is stated in the body o£ the contract to be a party thereto', and who signed the instrument as a principal, in fact signed as agent for another, and thus convert a contract, which, on its face, is his own, into the contract of his alleged principal. The conclusion reached upon this question makes it unnecessary for us to consider the other grounds of reversal which were presented to us bj counsel for the appellant.

The decree under review will be reversed.

For affirmance—None.

For reversal—The Chief-Justice, Trenchard, Parker, Mtnturn, Black, Katzenbach, Lloyd, White, Gardner, Van BusiqRK, Clark, McGlennon, Kays, JJ. 13.


author: Trbnchard, J.

text:
    Henry Scherer, complainant-appellant, v. Charles Bang, defendant-respondent.
    [Argued January 21st 1925.
    Decided March 16th, 1925.]
    1. A final decree of the court of chancery, confirming a special master’s report, will not be reversed; because the special master did not take testimony and report concerning a matter in respect to which the bill of complaint did not pray for relief, and which was not referred to him by the interlocutory decree.

      2. A mortgagee in possession is not bound to expend money on the mortgaged premises further than to keep them in necessary repair; that is to say, such repair as is absolutely necessary for the protection of the estate.
    3. Where one gives a deed for premises, and takes from the grantee an agreement tor a reconveyance on the repayment to the grantee of a certain sum of money advanced, and future advances, upon a certain day, and defaults in such payments, and later brings suit for a redemption of the premises, he will be charged with interest upon such sums advanced from the date of default, although the agreement was silent as to interest.
    On appeal- from a decree of the court of chancery advised by Vice-Chancellor Fielder.

      Mr. Palmer Bradner (Messrs. Heine, Bradner & Laúd, on the brief), for the appellant.

      Mr. Harry Gasielbaum, for the respondent.
   The opinion of the court was. delivered by

Trbnchard, J.

This suit was brought by Heniy Scherer to redeem mortgaged premises.

The salient facts set up. by the bill of complaint are as follows: In July, 1910, Scherer delivered a warranty deed in fee-simple to the defendant, Charles Bang, embracing the property in dispute. At the same time Bang executed a defeasance, which provided that the deed was to operate as a security for the sum of $635 and for future advances, to be made by the defendant. It further provided for the repayment of the monej'- on or before April 1st, 1911, and the re-conveyance of the property to the complainant, Pursuant to the contract, Bang entered into possession of the premises, except a certain portion thereof, which continued to be occupied by the complainant as a residence, and this situation continued until July, 1920, during all of which time the defendant, Bang, collected the rents accruing from the property i At the time last mentioned the complainant demanded an accounting, in order that the transaction might be closed and reconveyance made, but this request Bang refused. The praj^er of the bill was—(1) that the deed be decreed to be a mortgage; (2) that the defendant be decreed to “render a just and true account of all the rents and profits received by him from said lands and premises and of any sum or sums which may be due to him for principal and interest for his mortgage;” (3) that the complainant be allowed to redeem the premises by paying to the defendant such sum or sums as might be found due to the defendant by such accounting, and (4) that the defendant be ordered, upon payment of such sum or sums, to surrender possession of the premises and to deliver a deed therefor to the complainant.

At the hearing an interlocutory decree was made, adjudging the complainant’s right to the relief sought in the bill, and referring it to a special master “to take and state the account between the said complainant and the said' defendant touching the amount due to the said defendant under the said agreement between them, and that the said master take an account of the rents and profits of the said premises due and to grow due and of the amounts, if any, to be deducted out of or charged against the same, and which shall be found due to the defendant as aforesaid.” This the special master did, and upon the coming in of his report the complainant excepted to the failure of the master to find that the defendant neglected to keep the premises in proper repair, and to his finding that the defendant was entitled to interest upon moneys advanced by him. The exceptions were overruled, except in some minor unimportant respects; a decree was made confirming the report, and the complainant has appealed.

The report as modified by the final decree showed that there was due the defendant the sum of $16,302.51 over and above the moneys he had received from rentals, &e.

The first ground upon which a reversal is sought (as stated in the brief) is that “the special master should have taken testimony and reported on the question of the liability of the defendant for failure to keep the premises in a proper state of repair.”

To this we answer—•

First, that the bill did not pray for any such relief, and no such matter was referred to the special master by the interlocutory decree; and, of course, the final decree confirming the. special master's report will not be reversed because he did not taire testimony and report concerning a matter in respect to which the bill did not ask for relief and which was not referred to. him by the interlocutory decree.

Secondly, a mortgagee in possession is not bound to expend money on the mortgaged premises further than to keep them in necessary repair—that is to sajr, such repair as is absolutely necessary for the protection of the estate. Clark v. Smith, 1 N. J. Eq. 121; Shaeffer v. Chambers, 6 N. J. Eq. 548. The vice-chancellor, in effect, found and decreed that the defendant had performed his duty in that respect, and we are satisfied that this finding was entirely justified by the evidence taken before him a.t the hearing. The testimony was to the effect that necessary repairs were made from time to time. The wife of the complainant, who lived there all the time, testified that the premises were in the same condition at the time of the hearing as when taken over by the defendant. Moreover, the admission of the complainant himself that, during all these years, he made no complaint to the defendant of failure to repair, is particularly significant.

The only other reason urged for reversal is that the court of chancery erred in allowing interest on the moneys advanced by the defendant for the benefit of the complainant.

We think there is no merit in this contention. It ha? for its only foundation the fact that the defeasance agreement executed by the defendant made no express provision for interest. Where, as here, one gives a deed for premises and takes from the grantee an agreement for a reconveyance on the repayment to the grantee of a certain sum advanced,.and future advances, upon a certain day, and defaults in such payments, and later brings suit for a redemption of the premises, he will be charged with interest upon such sums advanced from the date of default, although the agreement was silent as to interest. Such was the course pursued in the instant case. That was not only equitable and just, but in this ease was evidently contemplated by the parties., as seems to be conceded in the prayer for an aecpunting in the complainant’s bill.

The decree below will be affirmed, with costs.

For affirmance—The Chiee-Justice, Trenoi-iard, Parker, Minturn, Black, Katzenbaci-i, Lloyd, White, Gardner, Van Buskirk, Clark, McGlennon, Kays, JJ. 13.

For reversal—None.


author: Trenchard, J.

text:
    Morris Tzeses and Anna Tzeses, his wife, complainants-respondents, v. Tenez Construction Company, a corporation, defendant-appellant.
    [Submitted February 18th, 1925.
    Decided March 16th, 1925.]
    The will under consideration in this cause reads as follows: “I wish my niece, Bliss Nellie Quinn, to be put in possession of all I have in clothes, money, jewelry, in fact, all I have.” Held, that thereby Nellie Quinn took title to testator’s real estate in fee-simple.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Church, whose opinion isireported in 9f> N. J. Eg. 11$. ,

      Mr. Harry Levin, for the appellant.

      Mr. Benjamin Newman, for the respondents.
   The opinion of the court was delivered by

Trenchard, J.

This bill was filed to compel the specific performance by the vendee of a contract to purchase real estate from the complainants. The defendant company refused to perform because the title of complainants rests upon a will which the defendant contends does not pass the fee to complainants’ grantor.

The vice-chancellor considered that there was no merit in that contention, and advised a decree of specific performance, from which the defendant appeals.

We are of the opinion that the decree is right.

The will is as follows:

“May 26th, 1913.
I wish my niece, Miss Nellie Quinn, to be put in possession of all I have in clothes, money, jewelry, in fact, all I have.
Katherine E. Farrell.
Witness G-. Herbert Ai.len M. Ina Burleigh.”

Three questions only are raised and argued—(1) whether the expression “I wish” is sufficient to pass title to real estate; (2) whether the expression “to be put in possession” is sufficient to pass a title in fee-simple; (3) whether the expression “in clothes, money, jewelry, in fact all I have,” included real estate.

Of course, the duty of the court is to ascertain and give effect to the intention of the testator as expressed in the will.

We think that the word “wish” means the same as “will.” If the testator had said “it is my will that my niece Miss Nellie Quinn is to* have all my estate,” no doubt that would have been sufficient to have passed title to> real estate. Countess of Bridgewater v. Duke of Bolton, 1 Salk. 236; In re Gaston’s Estate (Pa.), 41 Atl. Rep. 529; Bliven v. Seymour, 88 N. Y. 469. The expression “I wish” being sufficient in a proper case to pass title to real estate, the question whether it did so in the instant case remains for consideration.

We think that the expression “to be put in possession,” without limitation or devise over, is sufficient to carry a title in fee-simple, if appropriately used in connection with a devise of-real estate. Moore v. Moore, 84 N. J. Eq. 39; Traphagen v. Levy, 45 N. J. Eq. 448; Fitzgerald v. Faunce, 46 N. J. Law 536, 597. It seems quite evident that the testator used the word “possession” in the sense of use and ownership. While the language “to be put in possession” is loose and certainly not that of a, person skilled in will making, we believe that the intent to give is reasonably plain. Of course, words of inheritance are not necessary in a will to devise and carry a fee-simple. Section 36 of our Wills act (Comp. 8tat. p. 5878), passed in 1784, recognizes that rule, and provides that if words of inheritance are omitted, and it does not appear from the will that the devise was intended to convey an estate for life only, and no further devise is made of the land, it shall be understood to convey an absolute estate in fee-simple. Den ex dem. Bolton v. Bowne, 18 N. J. Law 210; see, also, Countess of Bridgewater v. Duke of Bolton, supra.

We are now brought to the only remaining question whether the expression “in clothes., money, jewelry, in fact all I have,” included real estate. We think it did. Any words, however untechnical or informal, which clearly indicate an intention on the part of the testator to> pass his interest in the real estate possessed by him, will be given that effect. 40 Cyc. 1580, citing the following specific instances: “All of this world's goods” (Torrey v. Torrey, 70 N. J. Law 672); “whatever I possess” (Warner v. Warner, 15 Jur. 141; 20 L. J. Ch. 278; Thomas v. Phelps, 6 L. J. Ch. O. S. 110); “Whatever I may be possessed of at the time of my decease.” Blakely v. Quinlan, 101 Ky. 52.

In Torrey v. Torrey, supra, it was said that “in attempting to interpret any will the first suggestion naturally arising is that the testator intended to- dispose thereby of all his property.” In that case it was held that in the will there under consideration, the words “all of this world's goods of which I may be possessed at the time of my death,” included real estate. In the opinion it Avas said that “it is therefore quite credible that the testator by these words meant all that he had,” and the implication from the opinion is that “all I have” would have been considered quite sufficient. In the case at bar the testator herself said “all I have.” Certainly, therefore, if from the will in question the words “clothes, money, jewelry,” were excluded, there would be no question that real estate would pass under the expression “all I have.” The question is whether 'the use of the words preceding the general expression limits the general expression to personal property of the same kind. We think it does not. Where, as here, the enumeration of particulars seem to lead up to a sweeping general term which is added by way of embracing whatever remains unmentioned, and the whole effect is that of a residuary bequest, courts at the present day decline to be hampered by any rule which would sacrifice the testator’s true meaning out of undue regard for the association of words of limited scope with broad generic terms, and the modern inclination, both in England and America, is to treat words of general description as unlimited in sense by an attempt to state particulars where the will as a whole discloses no intention to the contrary, though not, of course, where that favorable presumption is overcome. See Schoul. Wills (5th ed.) §§ Bib, 515.

The application of the foregoing principles to the language of the Ardil in question results in the conclusion that title to the testator’s real estate passed to Nellie Quinn in fee-simple.

The result is that the decree beloAV will be affirmed, with costs.

For affirmance—The Chief-Justice, Trenchard, Parker, Minturn, Kalisch, Black, Katzenbacii, Campbell, Lloyd, White, Gardner, Van Buskirk, Clark, McGlennon, Kays, JJ. 15.

For reversal—None.