author: Buchanan, V. C.

text:
    Frederick Spitalny, complainant, v. Superior Novelty Manufacturing Company, defendant.
    [Decided January 6th, 1926.]
    A sprinkler system and equipment had been sold to a corporation (later declared insolvent) and installed in the factory building by V. & Co. under a conditional sale contract. The receiver in insolvency sold all the assets of the company (not purporting to sell free of any liens or encumbrances) to S. V. & Co., took no part in the sale, but one month later filed with the receiver a claim of conditional vendor’s title to the sprinkler system and equipment. Held (1) the receiver has no jurisdiction to determine V. & Co.’s rights in the property as against S., the purchaser, and' (2) V. & Co. has no preferred claim against any of the funds in the receiver’s hands for payment of the unpaid balance of contract price due to it.
    On appeal from receiver’s determination.

      Messrs. Vanderbilt & Hedden, for the claimant H. G-. Vogel & Company.

      Messrs. Stamler, Stamler & Koesiler, for the receiver and for other defendants.
   Buchanan, V. C.

In the winding np of the affairs of the insolvent Superior Novelty Manufacturing Company the present claimant H. G. Vogel & Company filed proof of claim with the receiver, setting up a conditional sale contract between it and the insolvent corporation under which an automatic sprinkler system was sold to and installed for the latter at a price of $15,832.46, of which $12,000 had been paid before the appointment of the receiver, leaving balance due and unpaid of $3,832.46. The claimant, under the terms of the contract — ■ that title should remain in the claimant until the full contract price should be paid — claimed title to the sprinkler system and equipment.

This claim was filed June 30th, 1925. Prior thereto, on May 19th, 1925, the receiver had obtained an order to show cause upon the creditors and stockholders for a sale of the property of the insolvent company to one Simon Spitalny. Copy of this order was duly mailed to, and received by, the claimant as a creditor on the books of the insolvent company. The claimant did not appear on the return of the ‘ order to show cause or take any other action. 3STo objection to the sale was made by any other creditor or stockholder, and the same was duly authorized and confirmed on June 2d. Pour weeks later the claim above mentioned was filed by the claimant.

A hearing on the claim was held by the receiver on September 18th, 1925, and counsel for the claimant there made oral claim that the Vogel company was entitled -to priority of payment over the general creditors (but subordinate to the claims of the mortgagee-creditors) for the amount of its unpaid balance of $3,832.46 out of the moneys received from the sale by the receiver to Spitalny hereinbefore mentioned.

The receiver determined that the claimant is not entitled to any “preference as against the funds in the hands of the receiver,” and that the receiver had no jurisdiction “to determine the title of the claimant as against the party mortgagees,” and “that the claim of H. G-. Vogel & Company both to title or in the alternative to priority or preference in payment must be denied.”

The claimant’s petition of appeal from the receiver’s determination prays—

“1. That the right of petitioner to remove the property installed under its said conditional sale contract * * * may be declared against the said Simon Spitalny and any who may claim an interest under or through him, as well as against the mortgagees hereinbefore mentioned and all other persons claiming an interest in said property.”

Or in the alternative—

“2. That the receiver be ordered to allow petitioner’s claim as a preferred claim as against the general unsecured creditors in the distribution of the proceeds of the sale

No reason can be perceived why either prayer of this petition should be granted, or why the receiver’s determination should be reversed or modified.

Taken by itself, that portion of the determination “that the claim of H. G. Vogel & Company * * * to title * * * must be denied,” might be susceptible of the interpretation that it was a determination that the claimant had no title in the property. But in connection with the entire determination, it is perfectly clear that the determination is merely that the receiver refuses to determine whether the claimant has title or not. In such refusal the receiver was correct.

Whatever title Vogel & Company may have in the property in question concededly is by virtue of the conditional sale contract and the provisions of the Uniform Conditional Sales act. P. L. 1919. ch. 210 p. 1/01. Under the terms of the contract Vogel & Company retained “title” to the sprinkler system and equipment until fully paid for, with the right to enter and remove the same, in case of default, anlf sell it to obtain moneys to pay the balance due; or it had the privilege at any time to change the conditional sale to an absolute sale, “and to pursue any statutory or other remedies in such case made and provided.”

The “title” retained by the claimant (if it was retained, and we will assume that it was) was a title by way of, or for the purpose of, security for the contract price. This is apparent from the provisions of the contract and the provisions of the statute. The precise nature of this “title” need not here be determined or considered. Essentially, it would seem to be similar or analogous to the title of a mortgagee, in which case the claimant would have had the title or interest of a mortgagee for security, and the insolvent company the title or interest of the mortgagor — the equity of redemption — to which the receiver succeeded by operation of the Corporation act.

It is clear, however, that the receiver has no title now in the sprinkler system and. equipment; that he had none at the time of the hearing nor at the time of the filing of the “claim” by Vogel & Company. Whatever title the receiver had, whether that of a mortgagor or of whatever kind, passed to the purchaser Spitalny on the sale and conveyance to him by the receiver of all the assets of the company four weeks before the filing of the Vogel & Company “claim.” Whatever title or right the claimant has is a question be-, tween it and the present owner, Spitalny, plus the several mortgagees.

It is also clear that the receiver has no jurisdiction to pass upon a controversy between the claimant and Spitalny and the mortgagees. The authority given to the receiver by the seventy-sixth section of the Corporation act is to pass upon claims against the insolvent company. The claimant’s claim of “title” is not now, and was not at the time of its filing, a claim against the insolvent company, but against Spitalny. It is determinable or enforceable only by a retaking of the goods (or an attempt so to do) under the contract and under the sixteenth section of the Conditional Sales act,' or by legal process, which might, perhaps, be a replevin suit or a foreclosure suit, but which, in any event, would have to be a suit against the person or persons claiming title adversely to claimant. The receiver is not so doing, and the receiver has no jurisdiction to entertain such a suit. It may also be noted that neither the mortgagees nor Spitalny appeared before the receiver at the hearing, and there is no evidence of any notice to them to appear, and under such circumstances a determination would have been of no validity even if the receiver had otherwise had jurisdiction.

It would seem equally obvious that the claimant has no standing as a creditor entitled to any priority in payment out of any of the assets in the receiver’s hands. In the first place, the claim filed by it is not a claim of that kind— indeed, it is not a claim for payment of any kind — but a mere notice that there is an unpaid balance of $3,842 due it, and that it claims title to the goods. Doubtless the claimant might have leave to amend its claim, especially since the hearing before the receiver was, apparently, conducted on the theory that a claim for payment as a preferred creditor had been filed.

The difficulty still persists, however, that no authority is shown for preferring the payment of the Vogel & Company claim over those of other creditors. This claim does not fall within any of the classes for which priority of payment is provided by the Corporation act, or any other legislation to which attention has been called. A conditional sale contract is not a chattel mortgage nor a mortgage of any kind (although the situation resulting from a conditional sale contract would seem to be similar in many respects to that resulting from a chattel mortgage or mortgage), and the Corporation act does not specify conditional sale vendors as preferred creditors.

Of course, it is doubless true that in the case of a conditional sale, where the vendor’s title or lien or right to retake is undisputed, a receiver would be entirely justified in paying the conditional vendor in full in order to be able to make sale of the goods to better advantage, or that a valid agreement might be made between the conditional vendor and the receiver, whereby the receiver should be permitted to sell the goods free and clear of any lien or title of the vendor, such lien or title to attach instead to the proceeds of sale. But neither of those situations exists in the present case. The receiver did not pay, nor promise to pay, the conditional vendor in full; he did not sell, nor even purport to sell, the property free of the vendor’s lien or claim, so that assuredly he did nothing (if he could have done anything without claimant’s consent) to injure the claimant or impair its rights; and the claimant did nothing, so far as appears, to change its position or waive any right or lose any security which it had prior to the receivership.

The claimant’s only standing would seem to be (if its claim be duly amended in that behalf) as a contingent general or common creditor for such amount, if any, of its unpaid debt as shall remain unsatisfied after it has exhausted the possibilities of satisfying its debt out of the security “title,” which it seems to have (and which by its sworn filed claim it asserts that it has) ini that portion of the property sold to Spitalny, which is comprised in its conditional sale contract.


source: Caselaw Access Project

author: Chuech, Y. C.

license: Public Domain

text:
    Elizabeth Wright, petitioner, v. Charles Wright, defendant.
    [Decided November 28th, 1925.]
    1. A plea of non vuli to keeping a disorderly house, or such a plea to a charge of adultery, is not evidence of that offense by a defendant in a divorce case.
    2. A plea of guilty to a charge of adultery is substantive evidence of that offense in a divorce suit and sufficient to support a decree of divorce upon a charge of the same adultery.
    On final hearing on pleadings and proofs.

      Mr. Charles 8. Smith, for the petitioner.

      Mr. John W. McGqehan, Jr., for the defendant.
   Chuech, Y. C.

This is a case for divorce. Petitioner brought suit against her husband on the ground of desertion. Defendant filed an answer denying the allegation, and a counter-claim against his wife on the ground of adultery.

At the hearing the solicitor for the petitioner announced that he was unable to produce his client, that she had disappeared, and that he considered she had abandoned her cause.

The petitioner’s petition was thereupon dismissed and the matter came on to trial on the counter-claim filed by the defendant, alleging the adultery of Elizabeth Wright. Mrs. Wright’s solicitor remained in court to contest the counterclaim.

It is significant that the wife, although she filed an answer to the counter-claim in the cause and knew of the serious charge against her, did not appear at the trial.

There was introduced in evidence a record of the second criminal court in the city of Newark. The complaint reads as follows:

“Elizabeth Wright did allow and permit her apartment in the house, No. 355 Walnut street, to be used, frequented and resorted to by riotous and disorderly persons, gamblers, vagrants and common mendicants between the hours of five o’clock in the evening and seven o’clock in the morning in violation of section 632 of the revised ordinances of the city of Newark (Revision of 1913), approved October 4th, 1913, and amendments and supplements thereto.”

To this complaint Elizabeth Wright entered a plea of not guilty, the record shows, which she afterwards retracted and entered a plea of non vulL She waived her right to trial in the upper court and was thereupon fined $50. Counsel argues that this plea is evidence of the commission of adultery, the complaint being, in effect, a charge of keeping a disorderly house; hut a common law indictment for keeping a disorderly house does not charge the keeper with a sexual offense, as will hereafter be shown.

It will be seen that there is no allegation whatever of adultery in this complaint, and, therefore, it is not evidential of that offense in this case. Assuming that it were an equivalent of a disorderly house indictment in the usual common law form, which would he that said defendant “unlawfully did keep and maintain a certain common, ill-governed and disorderly house, at which certain persons of evil name and fame and dishonest conversation did cause and procure to frequent and come together, then and there to be and remain drinking, tippling, fighting, cursing, swearing, whoring and otherwise misbehaving themselves,” &c., a plea of non mill entered in such a case would not be evidential, although “whoring” would be charged among the other acts of disorder described.

The indictment in such form would only charge the defendant with keeping the house wherein sexual immorality, among other acts of disorder, may have occurred. On such an indictment, if proof had been made, it might have been shown that the disorder consisted of gambling only, or one or more of the other matters charged, without any sexual immorality at all ; or it might have appeared that all the acts of disorder alleged were committed in the house, including prostitution. However, under such an indictment and on such a plea,, there would be nothing before the court to show that the house was one of prostitution, and, even if it had been proven on a trial that the house was of such a character, still that would not necessarily have indicated that the defendant, the keeper of the house, was one of the sexual offenders.

In Johnson v. Johnson, 78 N. J. Eq. 507, Chancellor Walker, then vice-chancellor, made a quaere, Can the defendant’s plea of non mill to an indictment for adultery be received as substantive evidence on the issue of adultery in a divorce case, as an admission of the truth of the charge against him, irrespective of the discredit attaching to him as a witness? In that case the chancellor (at p. 512) confined the effect of the defendant’s plea of non vult to the affecting of his credibility as a witness.

In the later case of Stewart v. Stewart, 93 N. J. Eq. 1, Chancellor Walker held that “a plea of guilty to a charge of adultery in a criminal court is, in a suit for divorce based upon the same adultery, substantive evidence against the party pleading it, and is sufficient to prove the charge and support a decree of divorce.”

He cites State v. Henson, 66 N. J. Law 601, in which Mr. Justice Van Syckel, speaking for the court of errors and appeals, in treating of the effect of a plea of non vult, observed (at p. 609) that the only difference between that plea and the one of guilty was in the force each had upon collateral proceedings. Judge Van Syckel cites Peacock v. Hudson Sessions, 46 N. J. Law 112. In that case Mr. Justice Reed, speaking for the supreme court (at p. 113), observed that the implied confession in a plea of non vult is only for the purpose of the prosecution in the course of which it is entered, while the plea of guilty, in that form, may be used against the defendant in a civil suit, thus indicating that the plea of non vult is not available in a collateral proceeding. This appears to be the decision of the supreme court, the court of chancery and the court of errors and appeals. This position was also taken in the unreported case of Nixon v. Nixon memorandum, filed July 15th, 1921, docket 49/119. The plea of guilty to the offense charged against Mrs. Wright in the criminal court is not evidence of the commission of adultery by her.

However, there is further testimony in the case which leads me to the conclusion that adultery by Elizabeth Wright is sufficiently proven to warrant my advising a decree on the counter-claim for divorce by the husband on that ground.

A witness, one George W. Chenoweth, testified that he had seen the defendant with an Italian, one Meschino, on numerous occasions on the street, in theatres and in her house. On one occasion he was told that improprieties were being committed in the house. He went to the door and demanded admittance. The door was opened by Mrs. Wright, who was partially disrobed, and the Italian, likewise partially disrobed, was in the room with her.

Another witness, Mrs. Mary Hanlon, testified that her house was very near that of the defendant’s, and that she could look from her windows into Mrs. Wright’s rooms. On one night she looked across into Mrs. Wright’s apartment and saw her spring from the bed absolutely unclothed, and an Italian was in the room with her.

Without analyzing this testimony any further, I shall advise a decree dismissing the petition of the petitioner and granting the counter-claim of the defendant for divorce on the ground of adultery.


author: Church, V. C.

text:
    Karl Garthwaite Smith, executor, &c., complainant, v. William Thayer Field et al., defendants.
    [Decided January 4th, 1926.]
    1. Where a testator bequeaths to one the income from $5,000 during his life, the corpus of the fund should be held by the executors.
    2. 'Where a testator provided in his will that the residue of his estate should go to his son, “the same to go to him iwiith the right to use the income therefrom and from time to time to expend and consume for his living such portion of the principal as he shall need,” and upon his decease the income of so much thereof as may remain to his widow so long as she shall remain unmarried, with remainder to his children, a life estate only is given to the son, and the fund should be controlled by the executors.
    On bill, &c.

      Mr. John Trier, for the complainant.

      Messrs. Pitney, Hardin '& Skinner (by Mr. Howell), for the defendants.
   Church, V. C.

This is a bill for the construction of the will of Jessie D. Field.

The first question involves the construction of section A of the fourth clause, which reads as follows:

“I give and bequeath to his sister, Anna M. Field, the income from five thousand dollars for her life.”

Who is entitled to hold the fund of $5,000, the income of which is thus bequeathed to Anna M. Field? There is no question in nay mind but that the fund should remain in the hands of the executors. It is sufficient to cite in this connection Ott v. Tewksbury, 75 N. J. Eq. 4, 7. Vice-Chancellor Emery in his opinion says:

“The general rule in relation to payments or delivery to the life tenant of personal property or the principal, to the income or use of which he is entitled for life, is the one declared by Lord Eldon in the leading case — Howe v. Earl of Dartmouth (1802), 7 Ves. 137 — that where personal property is bequeathed for life, with remainders over, in general terms and not specifically, the property is to be converted and invested by the executors, and the income only paid to the life tenant. This general rule has been approved in so many cases in this state as to have become a settled rule of construction, and it must prevail unless there be in the will an indication of contrary intention, and that the tenant for life is to enjoy the possession of the property in specie and as given specifically.”

The second question relates to clause B of the fourth section of the will, which reads as follows:

“The residue of said estate to my son, William Thayer Field, the same to go to him with the right to use the income therefrom and from time to time to expend and consume for his living such portion of the principal as he shall need. Upon his decease, I give and bequeath the income of so much thereof as may remain to his widoiw, Emma L. Field, so long as she shall remain unmarried, with remainder to his children, share and share alike.”

Does this provision create a fee in William Thayer Field or has he only a life interest ? I think that the section above quoted gives to Mr. Field a life estate only. The leading case on this question is Downey v. Borden, 36 N. J. Law 460, in which (at p. 466) the court says that:

“As a rule of construction the principle is entirely settled, that where lands are devised in the first instance in language indeterminate as to the quantity of the estate from which an estate for life would result by implication, and words adopted to the creation of a power of disposal without restriction as to the mode of execution are added, the construction will be that an estate in fee is given; but where the quantity of the estate of the taker is expressly defined to be for life, the superadded words will be construed to be the mere gift of a power of disposition.”

It will be observed that Mr. Field is restricted as to the mode of execution of his power of disposal. That is, he shall enjoy the income and may consume the principal, but only for his living and as he shall need. Also, the clause says: “Upon his decease so much thereof as shall remain shall be distributed,” &c. I cannot see that this language creates anything except a life estate.

In the case of Reeve v. Beekman, 42 N. J. Eq. 613; affirmed, 44 N. J. Eq. 295, there was a gift to testator’s daughter, Fannie, which was not expressly limited to her for life. A codicil to the will says that she shall have “so much of the principal as she may need and her circumstances require from time to time.” The gift over was of whatever might remain at the time of her death. The court held that Fannie took only a life estate.

In Annin v. Vandoren, 44 N. J. Eq. 135 (at p. 144), the court said:

“The uncontrolled power of expenditure necessarily implies absolute ownership as fully as the power of disposing of it. And this difficulty can only be overcome by limiting the right of expenditure to so much as may be necessarj*' for the support of the legatee.”

In Cox v. Wills, 49 N. J. Eq. 130, which was affirmed as to this point, a testator gave the residue of his property to his wife and added the words “believing that she will make a will and thereby distribute so much of the last-named legacy among my near relatives as she may not use for comfortable maintenance.” Vice-Chancellor Pitney held that the fact that the widow was limited in her expenditures of principal to so much as might be needed for her comfortable maintenance prevented her taking a fee.

Having found that William Thayer Field takes only a life interest, the question arises as to who shall control this fund, the life tenant or the executors.

My opinion is that the fund should be controlled by the executors, as they control as trustee the fund of $5,000 mentioned in paragraph 4. It should be noted that the remaindermen, under this clause, are the widow and the children of William Thayer Field, and, more remotely, the trustees of Princeton University.

The children are in court, represented by a guardian ad litem,, who filed an appearance. Fo counsel, however, appeared for the children. Should the court find that the life tenant is entitled to enjoy the possession of the fund, it might be that the fund would be dissipated, to the detriment of the remaindermen. Counsel says that the court would be able to control this, but the court would probably not know of the dissipation of the funds until it was accomplished, and there would be no chance to remedy such dissipation.

The testimony shows that all the property bequeathed by the clause under discussion is in the form of securities. The life tenant can enjoy his income if the corpus is in the hands of the executors just as fully as he could if the securities themselves were in his possession. His right is to the income only. Should he need any of the principal for his living onty, by proper application to the executors, he would undoubtedly receive it, or, if they refused his request, an application to the court would bring about a proper adjustment.

Referring again to Ott v. Tewksbury, supra, we find the rule there stated that where personal property is bequeathed for life, with remainder over, the property is to be converted and invested by the executors and the income only paid to the life tenant.

Having come to the conclusions above set forth, it is unnecessary to consider the other points raised by counsel at the argument.

I will advise a decree accordingly.


text:
    Jacob Yanko, complainant, v. Nathan Goldberg, defendant.
    [Decided December 30th, 1925.]
    Where a partner in business agreed in its contract of co-partnership that he would not engage in the same line of business in a certain borough for a period of twenty years from the date of the dissolution of the partnership, such covenant is not necessarily an unlawful restraint of trade, and a motion to strike out a bill of complaint praying for an injunction against its violation -will be denied.
    On bill, &c. On motion to dismiss bill.

      Messrs. Quinn, Parsons & Dor emus, for the complainant.

      Messrs. Eanter & Eanier, for the defendant.
   Church, V. C.

This is a motion to strike out a bill of complaint in the above-entitled action.

The complainant, one Yanko, had been in business in Red Bank prior to August 1st, 1921, for some years running a store where he sold dry goods and women’s clothing. On January 1st, 1921, Yanko purchased another business which dealt with the same merchandise. His lease on his first store had not expired, and he employed defendant to manage the store for him at a salary. This continued until August 1st, 1921. Then Yanko and Goldberg entered into a partnership, as far as Yanko’s first store was concerned, Goldberg having no interest in the other store. The partnership was for a definite period and provided for the termination on August 29th, 1925. The partnership articles contain the following:

. “The party of the second part agrees that after the expiration of this agreement and the dissolution of the partnership he will not engage directly or indirectly in this line of business in the borough of Red Bank, for a period of twenty years from the date of such dissolution of the partnership.”

It appears from the allegations in the bill that Goldberg violated the provisions of the partnership and involved the partnership to a very large extent. The partnership was thereupon dissolved, the good-will of the business vesting in Goldberg. Yanko sold the business to Goldberg. A provision was inserted in the bill of sale and the bond accompanying it, by which Goldberg agreed that, upon the expiration of the lease, which he took and assumed at the dissolution of the partnership, that he would desist and refrain from conducting similar business within a radius of two miles of 32 Broad street, which is the store where Yanko was and is conducting business.

Goldberg has violated the covenants of the bill of sale and the bond. He now moves to strike out the bill on the ground that the covenant into which he entered is void, as being in restraint of trade.

The cases relating to restraint of trade are very numerous. One, to which my attention has been called, is that of Marvel v. Jonah, 83 N. J. Eq. 295. In this case the agreement provided that if it were terminated by violation of it by any of the parties, such party should refrain from practicing the medical profession in Atlantic City for three years. Jonah had violated the agreement. The court of errors and appeals, speaking through Chief-Justice Gummere, saj^s:

“We see no injustice in compelling Dr. Jonah to live up to the covenant solemnly entered into by him, and which was one of the causes inducing Dr. Marvel to admit him into partnership, and to share in the benefits of the practice he had built up.”

Another case is that of the United States v. Addyston Pipe and Steel Co., 85 Fed. Rep. 271. Chief-Justice Taft, speaking for the court, says:

“Again, when one in business sold property with which the buyer might set up a rival business, it was certainly reasonable that the seller should be able to restrain the buyer from doing him an injury which, but for the sale, the buyer would be unable to inflict. This was not reducing competition, but was only securing the seller against an increase of competition of his own creating.”

The learned chief-justice also says that one of the covenants which may be sustained is—

“By the buyer of the property not to use the same in competition with the business retained by the seller.”

My attention has been called also to the recent case of East Jersey Water Co. v. City of Newark, decided in this court and affirmed on appeal by the court of errors and appeals, 98 N. J. Eq. 672. This case, it does not seem to me, is on all fours with the one at bar. That case was mainly decided on the doctrine of the violation of public policy in the use of a commodity necessary to all the people.

There is, I think, sufficient in the bill of complaint as it stands to warrant my refusal to strike it out and let it go to Anal hearing, with permission to counsel to renew the motion at that time.

I will advise a decree accordingly.


author: Chubch, Y. C.

text:
    Fidelity Union Trust Company, complainant, v. May Green et al., defendants.
    [Decided December 8th, 1925.]
    1. Where a will directs the sale of real estate by the executors, the land is considered as converted into money from the death of the testator, for the purposes of the will, and -if these purposes fail, the fund must be divided as realty.
    2. Will considered, and held — (a) that where by its provisions it provides an income for testator’s wife, which provision she accepts in lieu of dower, and further provides that the personal residuary estate (in certain circumstances) shall be given to the beneficiaries, to whom he has beciueathed the net income of his real estate, in the proportion in which the net income is to be divided, the wife takes no part of the residuary estate, the testator’s evident intention being to provide for his blood relatives only in that distribution; (ib) where two legatees survived the testator, but died before the death of the last life tenant, they had a vested remainder in the residuary estate, and one share goes to the children of one of them and the other share to the administratrix of the other; (c) where one of the legatees, who were sisters, died without issue, 'her share should be divided between her sister and her sister’s children if she died intestate ; if she left a will, it passes as directed by the will.
    On bill for construction.

      Mr. J eróme B. McKenna, for the Mechanics Bank of New Haven, Connecticut.

      Messrs. Pitney, Hardin & Skinner, for Mary L. Smith, administratrix of Charles Smith.

      Mr. Boy F. Anthony, for Jane Laraway and'Irma Lara-way Dunn.

      Messrs. Bum, Tamblyn & Colyer, for Edith Blake Snobble.

      Mr. Daniel L. Campbell, for the complainant.

      Mr. Cyrus H. Vail, for Mary Green and Carrie Stalnaker.
   Chubch, Y. C.

This is a bill for the construction of the will of Thomas Smith, late of Newark, in this state. It is a long and elaborate document, and, as it is set up in full in the pleadings, I will only quote such parts of it as are essential in disposing of the case. The facts as agreed to by stipulation between counsel are as follows:

“It is hereby stipulated and agreed by and between the parties hereto, for the purposes of this suit only, that the facts relevant thereto are as follows:
“1. Thomas Smith died February 13th, 1903, leaving a will admitted to probate by the surrogate of Essex county on February 25th, 1903, and that Fidelity Trust Company therein named as executor and trustee, and now known as Fidelity Union Trust Company, the complainant in this action, duly qualified and is still acting as trustee thereunder.
“2. Annexed hereto is a copy of the last will and testament of said Thomas Smith, deceased.
“3. That decedent died possessed of personal property and seized of real estate of great value, and that of the personal property there' remains in the hands of the trustee the sum of twelve hundred and eighty-five dollars [$1,285], and there is in the hands of said trustee proceeds of the sale of real estate the sum of three hundred and ninety-five thousand dollars [$395,000].
“4. Thomas Smith left no child or children or issue of any deceased child or children him surviving.
“5. He was survived by his widow, Amanda Smith, 'and by his sister Ellen, wife of William Harpell, but his sisters Elizabeth Thompson and Emma Stephens predeceased him.
“6. Ellen Harpell, sister of deceased, died on September 17th, 1917, and a widow, Amanda Smith, died on February 3d, 1924.
“7. By the ninth paragraph of said will the executor and trustee is directed to divide the proceeds of the sale of real estate into twelve equal parts, and to pay two parts thereof •[less the sum of two thousand dollars, $2,000] to the child or children of decedent’s sister Elizabeth; the said Elizabeth left one child, May Green;
“Two parts thereof to the child or children of his sister Ellen; in the said bill it is alleged that Ellen died without child or issue surviving, but, in fact, the said Elizabeth Harpell left her surviving one child, William Harpell, Jr., who resides in the State of Illinois, and is of full age, and we consent to the amendment of the bill filed in this cause in accordance with the facts and to the entry of an appearance on behalf of said William Harpell, Jr., by a solicitor duly authorized thereto;
“Three parts thereof to the child or children of decedent’s sister Emma. Emma, sister of the decedent, left the following children: Nellie S. Cass, Bessie J. S. Hook, William T, Stephens, Emmabelle Stephens, Frederick B. Stephens, Joseph W. Stephens;
“Two parts thereof to the child or children of decedent’s sister Amelia.. Amelia, sister of the decedent, left the following children: Emma H. Pike, Clare Hook, Grace H. Dickson;
“Two parts thereof to Cora and Charles [or the survivor of them], children of decedent’s deceased brother Joseph, share and share alike. Cora and Charles, children of decedent’s deceased brother Joseph, survived the said Thomas Smith, but both of them died before the death of the survivor of the life tenants, Cora having died November 14th, 1911, leaving two children, Jane Laraway and Irma Laraway Dunn; Charles, her brother, died March 27th, 1919, leaving no issue, but a widow, Mary L. Smith, who is the administratrix of his estate;
“One part thereof to Carrie [wife of Daniel Bryant] and Imogene and Ida, children of decedent’s deceased sister Jane, share and share alike, and in case of the death of either the said Carrie, Imogene or Ida, her lawful issue, if any, shall take the parent’s share, and, if there is no issue, then the survivors or survivor of them, Carrie, Imogene and Ida, to take the deceased beneficiary’s share. Carrie Bryant, now Carrie Stalnaker, is still alive; Imogene died November 21st, 1914, leaving two children, James A. Blake and Edith Blake Snobble; the said James A. Blake died, unmarried, without issue and intestate, May 4th, 1918, and the daughter is still alive. Ida, the remaining daughter of testator’s deceased sister Jane, died April 26th, 1921, leaving no issue surviving;
“Amanda Smith, widow of testator, left a will of which Mechanics Bank of New Haven is the executor.
“8. That all of the parties to said suit are of full age.
“The life tenants are now all dead.”

Mr. Smith died possessed of personal property of moderate amount but seized of real estate 'of great value. In the seventh clause of the will, after providing several life estates, he directs “upon the death of -the last survivor of them [life tenants], or as soon thereafter as to my executor may seem wise, considering the conditions of the real estate market, and the reasonable advantage to my estate by withholding the sale thereof for a reasonable time to sell said real estate.” This direction to sell converted the proceeds derived from the sale into personal property for the purposes of the will.

In Dutton v. Pugh, 45 N. J. Eq. 426, the court held: “The direction to the executors to sell the residue of the estate is positive. They are allowed full discretion as to the manner of sale and are not limited as to the time of making it. Under such circumstances the land must be considered as converted into money from the death of the testator.” However, it is only a conversion for the purposes of the will. Moore v. Robbins, 53 N. J. Eq. 137.

The first question that arises is what disposition shall be made of this residuary personal estate. The sixth clause sajrs: “It is my will that my beloved wife, Amanda, shall not receive any part of the principal of my personal estate, but shall have the interest of one-third thereof during her lifetime.” The testator proceeds to “recommend” to his wife that she accept this one-third of the income during her lifetime in lieu of dower. She did accept it and continued to receive it until her death. The seventh clause gives the real estate to the executor with full power of control, and directions as to the disposition of the income, among certain beneficiaries named. The thirteenth clause says:

“In ease there should be a residuary personal estate [as there is], and I should die without leaving- lawful issue [as he did], then I give the whole of said personal residuary estate to the beneficiaries, to whom I have bequeathed the net income of my real estate in the proportion in which the income is directed to be divided.” &c.

It is claimed that, as some of the income is directed to be paid to the wife under the sixth clause, her estate should now receive a proportionate part of the residue. I cannot agree with this contention. A careful reading of the whole will leads me to the conclusion that Mr. Smith intended to provide for his wife in ample fashion as long as she lived, and then, when she died, if he predeceased her without issue, the residuary estate should go to his blood 'relatives. The sixth clause stands, as it were, alone. It clearly and explicitly holds that the wife shall not receive any of the principal; and, while it recognizes her legal right to an assignment of dower, he asks her to accept this life income in lieu thereof, with the evident intention of keeping the corpus intact for ultimate distribution at her death to Ms relatives. She acceded to his desire, and as long as she lived remained content with income only. I believe that the words of the thirteenth clause were intended to mean that the distribution of corpus was to be made in accordance with the terms of the seventh clause. The sixth clause is a full and complete provision for the wife, and the seventh distributes the remaining income after she is cared for. In.other words, the thirteenth clause refers only to those mentioned in the seventh clause, and does not refer to the sixth clause, which expressly excludes the wife.

I have not overlooked the ninth clause. This, it appears to me, refers to a possible residuum consisting of real estate. But, as I view it, all the real estate, for the purposes of the will, was converted into personalty. Therefore, the thirteenth clause, referring back, as I have said, to the seventh clause, applies in the distribution, and the ninth clause need not be considered. The ninth clause clearly refers to real estate; the thirteenth just as clearly mentions personalty. This interpretation, it seems to me, carries out the testator’s intention and explains the will as drawn, without altering its wording or declaring a partial intestacy.

The second question is, What shall be done with the share of the proceeds of the sale of real estate given to Cora and Charles? The reason for this is that Cora and Charles both survived the testator, and both died before the last life tenant. Charles survived Cora, who left two daughters, but died without issue, leaving a widow. Charles’ widow claims the entire estate. Another claim is that the entire share lapsed and that the heirs should divide it. Still another contention is that the widow’s estate gets the entire share, under the intestacy laws, as sole next of kin. The final insistence is that the widow receives one-half and the next of kin the other half.

Courts have always endeavored to so construe a will as to avoid intestacy. It is unnecessary to cite authorities for this proposition. They are numerous and well known.

■ The widow’s contention is untenable, I think, because, as I said above, the conversion into personalty is only for the purpose of the will, and, should these purposes fail, the share must be divided as realty among the heirs-at-law, and would not go to her as next of kin.

This question, I think, can be easily solved, in view of what I have heretofore said. Having found that the thirteenth section should be construed in connection with the seventh section, and the residuary estate divided in the proportion in which said income is directed to be divided (that is, as in clause seven), we must look to the wording of clause seven. It gives of the income “two shares thereof to be paid to Cora and Charles [the children of my deceased brother Joseph] in equal parts.” Applying this language to the residuum, it gives two shares thereof to Cora and Charles in equal parts. There are no qualifying words whatever. Therefore, it is quite plain that Cora and Charles each had a vested remainder, and, hence, Cora’s children take one moiety and the other goes to the administratrix of Charles.

The last question is, What becomes of the share of Ida in the proceeds of the sale of the real estate, she. having died without issue? Carrie still lives; Imogene died leaving issue; Ida died without issue. Both Imogene and Ida survived the testator. For the solution Of this question we must look, as we have done as to the second question, to the thirteenth section as construed by the seventh section. The seventh clause says: “One share to be paid to Carrie [wife of Daniel Bryant] and Imogene and Ida [daughters of my deceased sister Jane] in equal parts.” Applying this language, as we have done in the question relating to Carrie and Charles to the residue, it gives one share to Carrie, Imogene and Ida in equal parts. There are no qualifying words whatever. Therefore, these three sisters each had a vested remainder. So, Carrie takes one-third of this share, Imogene’s issue one-third, and Ida’s one-third is to be divided between Carrie and Imogene’s issue, if Ida died intestate. If she left a will, then it, of course, passes as directed by said will.

I will advise a decree according to the above conclusions.


text:
    New Home Building and Loan Association, complainant, v. Wel-Bilt Construction Company et al., defendants.
    [Decided January 4th, 1926.]
    Where a party filed a mechanics’ lien against certain real estate, and neglected to prosecute his claim until after sale under foreclosure of the real estate, he is guilty of laches, and his petition to be made a party to the suit for the purpose of establishing' the priority of his claim should be denied.
    On petition of Vreeland-Kearney Lumber Company to open decree. On motion for leave to file supplemental petition.

      Mr. Frank E. Bradner, for the Vreeland-Kearney Lumber Company.

      Mr. Philip J. Echo Hand, for Solomon Berla and Samuel Berla, trading as “Elias Berla.”
   Church, V. C.

The facts in this ease are that complainant foreclosed a mortgage on three buildings in the town of Irvington. The buildings were joined together, but were separately encumbered. The bill of complaint sets forth the lien of complainant and the lien of the mortgagees, the third of which are the defendants. An interlocutory decree was entered and the encumbrances proved before the master, who found ' the amount due. Pinal decree was entered and sale had. After the sale the Vreeland-Kearney Lumber Company filed a petition asking that the surplus money be held, and claim- ' ing priority of an alleged mechanics’ lien claim over the lien of the mortgage of these defendants. Vice-Chancellor Field er, to whom this petition was presented, made an order of reference to John A. Bernhard, Esq., to take testimony and report whether, in his opinion, the Vreeland-Kearney Lumber Company could establish a right of claim. Mr. Bernhard reported that, in his opinion, it could not do so. Exceptions were filed and the Vreeland-Kearney Lumber Company now asks this court to allow them to open the decree and file an answer allowing them to question the mortgage held by the defendant, on the ground that when the corporate debtor .executed the mortgage it was insolvent. The corporate debtor is a bankrupt, and one Morris Isserman is trustee in bankruptcy of said corporate debtor. The Vreeland-Kearney Lumber Company filed a lien on November 20th, 1921-, in which they made Mr. Isserman a party defendant, as well as the corporation, and also these defendants. It did not prosecute its lien claim by placing the summons and complaint in the hands of the sheriff, but instead presented the summons and complaint to the county clerk, had him endorse on the lien claim the issuance of the summons and then took no further steps. The summons and complaint were not placed in the hands of the sheriff to be served on the defendant until after the sale and until after the original petition by the Vreeland-Kearney Lumber Company was filed in this cause and after the matter had been referred to Mr. Bernhard. After the service of the summons and complaint on these defendants, they answered and took issue on the question of priority of the mortgage over the alleged lien of the Vreeland-Kearney Lumber Compairy, and denied the right of the Vreelaard-Kearnqy Lumber Company to a lien on the premises. After the case was at issue the Vreeland-Kearney Lumber Company did not notice the case for trial, and it was finally non prossed. Now, the Vreeland-Kearney Lumber Company, after neglecting its alleged right of lien until after the final decree and sale, and neglecting to prosecute its lien claim at law, desires to open a final decree and permit it to file an answer and cross-bill.

I believe, in the first place, that it was guilty of such laches as not to be entitled to the relief prayed for. Moreover, the petitioner’s right to come in is based upon section 58 of the compiled statutes, page 432, which provides—

“Such person may cause himself to be made a party to such suit by petition, in the same manner as is by this act provided in the case of persons acquiring' an interest in the subject-matter of a suit after its commencement.”

The court, in Insurance Co. v. Schwab, 51 N. J. Eq. 205, says:

“One who, pending a foreclosure suit, had acquired a contested claim to part of the surplus paid into court on the sale, after satisfying complainant’s mortgage, cannot be made a party to the suit by petition, after final decree for the purpose of enforcing such claim.”

And, finally, it seems to me, that the only one to raise the question that the petitioner seeks to raise is the trustee in bankruptc.y. It is also suggested that the provisions of the Chancery act, permitting a party to come in after bankruptcy and sale, require the petitioner to set-forth at length and in full his claim, and that the petitioner has not done so in this case. Also, that oar the merits the aaisweriaag affidavits filed show that there is no equity iar the petitioner’s claim.

I think it is umrecessary to pass upon these coartentions, because for the other reasons I have stated I shall advise a decree deaiying the peranission to the Vreeland-Kearney Lumber Company to file its supplemental petition.


author: Bentley, V. C.

text:
    Catherine Murray and Anna L. Burk, executrices of the last will and testament of James Murray, deceased, complainants, v. Vincenzo D’Orsi and Sebastiano D’Orsi, his wife, et al., defendants.
    [Decided November 23d, 1925.]
    1. In the absence of fraud, irregularity, accident or mistake, judicial sales will not be set aside for inadequacy of price unless the inadequacy is so gross as to justify an inference of fraud.
    2. Negligence upon the part of one who invokes the application of the doctrine of setting aside sales for mistake, or of his representative, may defeat its application.
    3. Evidence examined and held that the proof does not show sufficient equities to set aside the sale made in this cause.
    On bill, &C.

      Mr. William V. Assoli, for the petitioner.

      Messrs. Benny & Cruden, for the respondent.
   Bentley, V. C.

On petition to annul a sale in a foreclosure suit.

The petitioner is the wife of the owner of the equity of redemption of real estate upon which the mortgage foreclosed was a lien, and she is living apart from her husband from whom she has been estranged for some time. She entered into a contract with one Nettie Murray, who held a second mortgage upon the same property, to convey the equity of redemption for the sum of $10,500. Her husband refused to join in the contract because he maintained that the price was inadequate. Subsequently, the husband and wife executed a contract with Mr. Sidney Jacobs, a member of the bar, on November 11th, 1924, to convey their interest in the land, for the consideration of $11,250, and received $500 thereof. The petitioner’s husband had entered into recognizances, which were liens on the land, and, therefore, the passing of title was postponed from time to time, during which the bill to foreclose the first mortgage was prosecuted to final decree and execution issued thereunder. The sheriff advertised the sale for April 30th, which was, approximately, one week before the time fixed for the trial of the indictment against the defendants, in whose interest the above-mentioned recognizances had been executed. Before, or about the time the sheriff held his sale, Mr. Jacobs repudiated his contract and commenced an action at law for the purpose of recovering back his deposit. No matter what his legal ground may have been, the motive which prompted him to reject the title, as expressed by himself, was that the property did not equal in value the price he had agreed to pay.

The application is based upon inadequacy of consideration at the sheriff’s sale coupled with mistake upon the part of the solicitors representing the husband of the petitioner. So far as the inadequacy of price is concerned, the petitioner maintains that the property is worth $11,250, while the price realized at the sale held by the sheriff was only $8,000. There is no such shocking contrast here as should result in setting the sale aside. The figures bear a striking resemblance to the ratio in Hoffman v. Godfrey, 79 N. J. Eq. 617, where the court of errors and appeals said that, in the absence of fraud, irregularity, accident or mistake, judicial sales will not be set aside for inadequacy of price, unless the inadequacy is so gross as to justify an inference of fraud. There is no proof of irregularity, accident or fraud, and, therefore, it becomes necessarjr to examine those facts upon which equitable mistake is predicated.

Prior to the time of the execution sale, counsel representing the petitioner, as well as other counsel acting for her husband, called upon the sheriff seeking an adjournment of the impending sale, and were told by that officer that such a motion would have to be made at the time the sale was scheduled to be held. It was agreed between them that one or the other should be present at that time and make the formal application for an adjournment. On the day of the sale one of them, finding that it would be impracticable for him to make the motion, telephoned to the office of the other, where he left.a message that the other “should attend to the sale personally.” The person who took the message is said to have made the mistake upon which the petitioner relies. As transmitted, the message was that an adjournment had been secured, and that it would not be necessary to attend at the sheriff’s office. Later in the day the sale was held, with the result already stated.

I am not unmindful of the rule laid down in Campbell v. Gardner, 11 N. J. Eq. 423, that where the foreclosing mortgagee is the purchaser the court will more readily open the sale than in the case of a stranger so purchasing. But while the petitioner alleges that the purchaser had formerly represented to her that she could control the foreclosure of the first mortgage, the purchaser much more stoutly swears that this allegation is untrue, and the purchaser here, while an encumbrancer, was not the mortgagee at whose suit the land was ordered to be sold. But even assuming, for the purpose of argument, that the rule laid down in Hoffman v. Godfrey, supra, should be somewhat relaxed, I do not think that it should be entirely swept away for the purpose of permitting the petitioner to take advantage of the kind of a mistake that was made in this case.

There can be no doubt that courts have gone to great lengths in applying the doctrine of mistake. But they have always recognized that negligence upoai the part of him by whom it is invoked will defeat its application, and this is so whether the fault lie at the door of the party himself or his representative. Bish. Pr. Eq. § 191. Pom. Eq. Jur. § 858 says that a partyjs own negligence will not alwajrs occasion refusal of relief, and then states the rule in the following language:

“It would be more accurate to say that where the mistake is wholly caused by the want of that care and diligence in the transaction which should be used by every person oí reasonable prudence, and the absence of which would be a violation of legal duty, a court of equity will not. interpose its relief; but even with this more guarded mode of statement, each instance of negligence must depend to a great extent upon its own circumstances.”

In Voorhis v. Murphy, 26 N. J. Eq. 434, which was a foreclosure suit, the defendant undertook to excuse delinquency in the payment of an installment of interest by saying that he mistakenly thought the period of grace was longer than, in fact, it was. The chancellor said: “Such carelessness will not be regarded in equity as mistake.” To the same effect are the authorities which he cites. In a great many cases the complaining party has been relieved of the consequences of his mistake of fact, even where it was due to his own clear negligence. An example is to be found in Institute Building and Loan Asso. v. Edwards, 81 N. J. Eq. 359. There the complainant, holding a mortgage admittedly superior to two subsequent judgments, canceled the same and took a new one on the same land and to secure the same debt which was, on its face, a subsequent lien to those of the judgments. The doctrine of subrogation was applied because, as Vice-Chancellor Learning points out, no one was injured by the complainant’s mistake except itself. But he says (at p. 865) :

“Where the act done by mistake is one calculated to induce others to take a line of conduct which will put them to loss if the mistake is corrected, it ought to be clear that the party asking for relief has been led into the mistake in spite of the employment of the highest degree of vigilance.”

Applying this language to the case at bar, the petitioner has, by her conduct in failing to adjourn the sale and produce a purchaser who would bid more, very materially changed the position of Nettie Murray. She has now obligated herself to take over the property and pay the amount of her bid' to the sheriff, and is entitled to the fruit of her vigilance.

Besides, a moment’s consideration will make it apparent that the petitioner seeks to speculate at the sale she hopes will be ordered. At the time the property was sold by the sheriff she did not have anyone who would have bid more than Nettie Murray did, because, although she did not know it, Mr. Jacobs must have then made up his mind that he would not complete his contract. Neither is there any assurance that a more favorable bid will be made at another sale. And in this state of affairs the court is asked to keep a creditor or creditors out of his or their just due in the Micawber-like hope that “something will turn up.” The chancellor will publish in a very short time an opinion in Cashin v. Alamac Hotel Co., in which he will animadvert upon the gravity of interfering with such a sale except upon the strongest provocation.

I do not think that this petitioner comes within any of the authorities upon which her counsel rely. For example, in Howell v. Hester, 4 N. J. Eq. 266, the petitioner was so advanced in life and so helpless that the chancellor said he was inclined to regard the application “with indulgence,” because her negligence was not culpable on account of the facts just mentioned. In addition to that, the property did hot realize twenty-five per cent, of its value, and, in analogy to Chancellor Walker’s opinion in In re New Jersey Refrigerating Co., 96 N. J. Eq. 431, where'he determined that a sale should be set aside where there was an opportunity to secure fifty-two per cent, increase, I think that if it were shown that three hundred per cent, increase could be obtained in the case at bar, I would feel as the chancellor did in Howell v. Hester. In Seamen v. Riggins, 2 N. J. Eq. 214, the attack upon the sale was based, in part, upon the prior representation of the complainant’s solicitor that he would not permit the sale to be called in the absence of the petitioner’s representative, and there was a breach of such promise. In Campbell v. Gardner, supra, the property had been sold for less than fifteen per cent, of its value. In Mutual Life Insurance Co. v. Goddard, 33 N. J. Eq. 482, there was a situation similar to that of Seaman v. Riggins, in that the petitioner’s counsel relied upon an express promise by the complainant that the sale would be adjourned. In Kloepping v. Stellmacher, 21 N. J. Eq. 328, property worth $1,500 would have been sacrificed for $52. In Strong v. Smith, 68 N. J. Eq. 650, the petitioner’s agent in New York City was not notified of the sale until the morning of the day thereof, and was hurriedly obliged to journej' to Red Bank, Monmouth county, and in the confusion did not prepare himself with sufficient funds to make the deposit of the required percentage of his bid. All of these cases show immensely more grounds for opening the various sales than in the case in the present application.

Furthermore, every dictate of policy is against interfering with the orderly prosecution of judicial sales. It is common knowledge that mortgagors always experience the keenest regret upon seeing their property swept away upon an execution sale, and I know of no instance where one of them has been successful in his application to set the same aside based upon a mistake such as this. Because, when counsel for the petitioner’s husband received the message that an adjournment of the sale had been effected he was astonished, in view of the sheriff’s prior information to both lawyers that the sale could not be adjourned until it was called, and thereupon the husband’s counsel unavailingly sought to communicate. by telephone with the one representing the petitioner. This was the natural course for him to pursue, and had he been successful in his quest the mistake, which is the foundation of this application, would never have been made; but when he then failed to make the next natural inquiry, namely, of the sheriff, I feel that he made the mistake which must bar the petitioner from the relief she seeks. Any other course of decision would render it almost impossible to ever effect and confirm, such a sale.

The petition should be dismissed.


text:
    Martha L'Hommedieu and Elizabeth L’Hommedieu, complainants, v. Arthur R. L’Hommedieu and Edward L. Crisman, as executor and trustee under the last will and testament of Job S. L’Hommedieu, deceased, defendants.
    [Submitted November 19th, 1925.
    Decided December 17th, 1925]
    1. Parol evidence is admissible only to explain the contents of a will in cases of latent ambiguity in the will, or some part thereof, but is inadmissible to change the language of a will.
    2. A spendthrift trust cannot be read into a will by means of extrinsic evidence, but must appear from the language of the instrument itself.
    3. Where a will gave the net income from the residuary estate in the hands of the executors to the testator’s «in during his natural life, with remainder to his granddaughters, this constitutes the ordinary situation of. splitting up an estate into' a life tenancy and remainder, and is not the creation of a trust for the support and maintenance of one during his lifetime, or other period, and an assignment of the life tenant to the remaindermen vests the wliole estate in them. . ■
    4. Query. Is a spendthrift trust valid in this state?
    On bill to terminate a trust.

      Mr. George E. Gutley, for the complainants.

      Mr. John G. Losey, for the trustee.

      Mr. Arthur R. L’Hommedieu, pro se.

   Bentley, V. C.

Job S. L’Hommedieu died on the 14th day of August, 1922, leaving a last will and testament, wherein he gave to his son, Arthur, the use of certain real property so long as the latter might continue to occupy the same, and remitting all the debts due the testator from the son. The important paragraph of the will is the fourth, and reads as follows:

“Fourth. I give, bequeath and devise all the- rest and residue of my property, whether real or personal, to my executor hereinafter named, during the lifetime o'f my son, Arthur It. L’Hommedieu, in trust, nevertheless, to pay the net income of said property after paying and deducting necessary charges to my son, Arthur It. L’Hommedieu, during his natural life, after the death of my son, Arthur R. L’Hommedieu, I give, bequeath and devise all the rest and residue of my property, not hereinbefore disposed of, whether real or personal, to my granddaughters, Martha L’Hommedieu and Elizabeth L’Hommedieu, to be equally divided between them, share and share alike, their heirs and assigns forever, should either one die without issue, then her share to go to the one surviving.”

The fifth paragraph directs the executor to keep the testator’s investments as they shall be found at the time of his death

“so long as they are desirable in the judgment of my executor and my son, Arthur E. L’Hommedieu, but when any of said investments are realized upon or it is desirable to invest any of the money belonging to my estate, said executor is directed to. invest the same in good and safe bonds and mortgages in his discretion, provided that before any such investment is made, however, said executor must first obtain the consent of my said son, Arthur R. L’Hommedieu, to the same.”

The next and last paragraph appoints the defendant Crisman executor. Much stress is laid upon this peculiar veto power by counsel for the complainants, but I do not think it of any importance. On April 27th, 1925, the defendant Arthur executed a voluntary assignment of all his right, title and interest in and to the estate of the decedent to the complainants, who are his daughters, are sui juris, and who have a vested interest in the estate, as shown by the fourth paragraph of the will herein above quoted.

The main question mooted at the final hearing, and the one upon which the decision of this case will be rested, is whether the will presents the -ordinary situation of splitting-up an estate into a life tenancy and remainder, or the creation of a trust for the support and maintenance of one during his lifetime or other period. If the former, then the complainants as remaindermen, having gotten in the life estate, are entitled to the present enjoyment of the estate of the testator. Schmeider v. Meyer, 96 N. J. Eq. 69. But, on the contrary, if the will has established that species of trust which has come to be called a spendthrift trust, then no effect should be given to the assignment upon which the complainants rely.

Tt appears from the testimony that the defendant Arthur L’Hommedieu had been very unsuccessful as a business man at the time of the execution of the decedent’s will; that he was involved in most unfortunate troubles which had arisen through no fault of his or any other person, but which, undoubtedly, were, at least, partly responsible for his failure, and that he was largely indebted to the testator, to whom he had been obliged to turn frequently for financial assistance. The executor testified to a conversation with his testator, which clearly showed that the latter was much concerned about the future of his son where dominion over money was involved.

The testimony by which the foregoing facts were established was admitted over the objection of the complainants, on the ground that it was incompetent to change the language of the will, and I have been driven to the belief that the objection should have been sustained, and that I cannot give effect to the proofs so adduced. My understanding of the policy in this state is, to restrict the use of parol evidence to explain the contents of a will to those cases where a latent ambiguity occurs. Griscom v. Evens, 40 N. J. Law 402; affirmed, 42 N. J. Law 579. Mr. Justice Depue wrote the opinion in the supreme court, and the rule contained in the language now quoted was not questioned in the court of errors and appeals: dence may be resorted to, -which, in its nature and effect, is simply explanatory of what the testator has written, but no evidence can be received for the purpose of showing what he intended to have written. Wigm. Wills § 9. In every ease of a controverted construction the sole question is non quod voluit sed quod dixit. Extrinsic evidence of the circumstances, situation and surroundings of the testator, and of hi's property, is legitimate to place the court which expounds the will, in the situation of the testator who made it, and thus enable the court to understand the meaning and application of the language he has adopted; but the testator’s intention must, ultimately, be determined from the language of the instrument, as explained by such extrinsic evidence, and no proof, however conclusive in its nature, can be admitted with a view of setting rip an intention inconsistent with the writing itself. 2 Tayl. Ev. § 1082. No difficulty, however great, in deciphering the obscure language of the devise, or in unraveling the intricacies in the testator’s descriptions of the persons or property to which his testamentary disposition should apply, will justify resort to such evidence. With the assistance of such explanatory evidence as has been mentioned, the court may be called upon to harmonize the conflicting provisions of the will, and to reject such descriptive parts as are only false demonstrations; but if, with the aid of such evidence, the testator’s meaning cannot be ascertained, the will will be simply void for uncertainty. Wigr. Wills prop VI.

“By the statute, a, writing is made indispensable to the existence of a will, and what has been written cannot be added to, detracted from or altered by extrinsic evidence. The functions of the court are to ascertain the intention of the testator from the language of the will. Extrinsic evi-

“'The only exception to this legal rule is that the declarations of the testator may be resorted to in case of a latent ambiguity, which arises where there are two or more persons or things, each answering exactly to the person or thing described in the will. In such event, parol evidence of what the testator said may be lawfully adduced to show which of them he intended; but such evidence will not be allowed to show that he meant a thing different from that disclosed in the will.” Den v. Cubberly, 7 Halst. 308; 2 Tayl. Ev. §§ 1092, 1093; Hawk. Wills § 9.

Otherwise, the value of a decedent's solemn declaration of the ultimate disposition of his property wall be fraught with such uncertainty as to cause a confusion that will be destructive of property rights. In the case at bar, the will confers upon the defendant Arthur an absolute right of property in the income of his father’s estate, but the effect of the testimony would be to entirely change the testamentary disposition so that the legatee w'ould -have only a qualified right to receive payments of income as they might accrue. , If the testator had desired to restrict the enjoyment of the income to Arthur and no one else, his purpose could have been effected by the use of appropriate language in the will. I do not understand it to' be necessary to denominate the beneficiary a spendthrift in that harsh word, but that some indication must be given of the intent to restrict it to his personal benefit without recourse to creditors or assignees.’ For •example, Vice-Chancellor Learning decided, in Castree v. Shotwell, 73 N. J. Eq. 590, that a spendthrift trust rvas established by a devise to trustees, to the sole and separate use of a married woman “in such manner that she shall enjoy the net income thereof as it shall accrue." (Italics mine.) Another familiar method of attempting to protect the beneficiary against-his own improvidence is to provide that he shall enjoy the income unless ilé shall become bankrupt. It is, of course, recognized that one does not wash to hurt the feelings of an object of his love by the use of harsh or other language that may hold the latter up to ridicule.

The only safe rule to pursue is the one indicated. A testator is thus empowered to direct the distribution of his estate as he shall see fit, within the limits required by law, by the unequivocal language of his last will and testament, and if he does not see fit to cut down the bequest therein made he should be presumed to have given an unqualified interest or estate of the character described in the will.

Vice-Chancellor Learning, in Camden Safe Deposit and Trust Co. v. Schellenger, 78 N. J. Eq. 138, and Brooks v. Davis, 82 N. J. Eq. 118, has pointed out that the authorities of this state are not closed on the question of the validity of a spendthrift trust, and I, of course, am not called upon to determine that question, by reason of the fact that whatever may have been in the mind of the testator no such trust has been established in this case.

With regard to the assignment to the money loaners in Philadelphia, I do not feel that any decision should or can be expressed. Those assignees are not before the court. Until they are brought in and their rights settled, the executor will be protected by any order or decree that may be made, and none will be made except on notice or by consent as to form.


author: IlSTGERSOLL, V. C.

text:
    Richard McAllister, complainant, v. H. J. Heinz Company, a corporation, et al., defendants.
    [Decided October 22d, 1925.]
    Where a bill for injunction is filed, and the hearing of the case shows that the facts of the case are no different from those which were heretofore adjudicated upon by this coiu’t. the former decree will be followed. Hence, bill dismissed.
    On bill for injunction. On final hearing.

      Messrs. Babcoclc & Champion, for the complainant.

      Mr. Robert II. McCarter, for the defendants.
   IlSTGERSOLL, V. C.

On December 15th, 1902, the complainant became the owner of an undivided one-half interest in certain premises on the beach front in Atlantic City, Xew Jersey, extending to the exterior line as fixed by the riparian commissioners.

Iii 1886 the structure now known as Heinz Pier was erected. As originally built, the landward end of the pier was within the lines of Massachusetts avenue, and extended diagonally across the locus in quo. What is termed the inner pavilion was added to the pier in 1900. By “An act to enable cities in this state, located on or near the ocean, and embracing within their limits or jurisdiction any beach or ocean front, to open and lay out a public park or place for public resort or recreation on and along the beach or ocean front of such city, and to purchase or condemn lands, property and rights therefor, and to preserve the same from obstruction or encroachment” (P. L. 189h; 1 Comp. Slat. p. 1076), Atlantic City was authorized to create a park oceanward of the boardwalk, as then existing or thereafter built.

In January, 1907, the complainant, his co-tenants, and other owners of land adjoining the boardwalk, presented to the city council of Atlantic City a petition signed by the owners of all land on the ocean front between Connecticut avenue and Maine avenue, stating “that by reason of the formation of land by accretion, the high-water line as it now exists is not less than three hundred feet oceanward from the present location of the sixty-feet-wide street upon which is erected the public boardwalk at the time of the execution by us, or our predecessors in title, of a certain deed to Atlantic City familiarly known as the easement deed, as made and delivered pursuant to an act entitled ‘An act to authorize cities in this state, located on or near the ocean/ &c., approved April 6th, 1889, and the ordinances of Atlantic City passed in virtue of said act and its supplements and amendments.

“Petitioners further show that the land owned by them, as stated, comprises more than three contiguous squares, and they hereby petition your honorable body to move said boardwalk oceanward between the points herein named, from its present location to a point three hundred feet oceanward or such greater or less distance as the rights of your petitioner under said easement deed and public interest may require.”

On April 22cl, 1907, the city council of Atlantic City passed a resolution as follows: “Be it resolved by the city council of Atlantic City that for and in consideration of a consent in writing, to be approved by the city solicitor, and streets, walks and drives committee, from H. J. Heinz Company, of Pittsburg, for the relocation of a boardwalk forty feet wide along the interior line of the beach front park, located by ordinance of April 10th, 1907, said location cutting through at that width the iron pier located at the ocean end of Massachusetts avenue, that the city of Atlantic City will not interfere with or disturb the present occupancy or possession of said company with said pier as now erected on lands owned or to be hereafter acquired by the city within the limits of said beach front park unless such interference or disturbance shall be by condemnation proceedings instituted against all piers on the ocean front in carrying out a scheme for the acquirement by the city for all lands within said beach front park, and that the mayor and city clerk be hereby authorized to sign such agreement.”

The boardwalk was accordingly moved oceanward about three hundred feet, which resulted in the landward end of the pier being cut off and the pier shortened more than three hundred feet, the landward end being a considerable distance eastwardly from Massachusetts avenue.

On April 7th, 1907, the complainant and other owners of land along the Atlantic ocean made and executed to the city of Atlantic City a deed generally known as the park deed, in which, after several recitals, and describing by metes and bounds, the said park deed provided as follows:

“And whereas the said city has heretofore constructed and is about to reconstruct within the limits of the said park for a considerable distance along and near to the inland line so established an elevated boardwalk, and proposes hereafter to continue such construction along the entire line. Now, for the purpose of enabling the said city to use the lands lying oceanward from the inland line so established and so so be established, and within the boundaries above designated as a public park and place of resort and recreation in pursuance of the provision of the said act — This Indenture Witnesseth, That the parties of the first part, for and in consideration of the premises and of tlie sum of one dollar lawful money of the United States of America, well and truly paid by the said party of the second part to the said parties of the first part, at and before the sealing and delivery of these presents — receipt of which is hereby acknowledged — and in consideration of the benefit and advantage to be derived by the pax-ties of the first part, by the laying out of the said park within the boundaries aforesaid, and building said walk, and in consideration also that the lands of the said parties of the first part will not be condemned as is provided by the act of the legislature or ordinance above referred to have and by these presents do, for themselves and each of them, their heirs, successors and assigns, give, grant, bargain, sell and convey to the said party of the second part and its successors, all their and each of their right, title and interest in and to the 'above described tract of land and every part and parcel thereof, including such parts and parcels thereof a® are, or may be covered bj’ water, to have and to hold the said premises with all and singular the appurtenances, unto the said party of the second part, and its successors for and only for use as a public park or place of resort and recreation, giving to said party of the second part, and to its successors, however, the right to construct, reconstruct, repair, complete and maintain, upon the land so conveyed along the interior or inland line of said park or place for public resort as established as aforesaid, an elevated public boardwalk in accordance with the provisions of the said act, but subject to the following conditions and restrictions: That no railroad nor street railway shall ever be constructed, operated or maintained over, upon or across any portion of the premises hereby granted and conveyed, and that said land shall never be used for any railroad purpose or whatever. And the said party of the second part hereby covenants and agrees to and with the said grantors, parties of the first part, and to and with each and every one of them, and to and with their and each of their assigns, as follows: First, to maintain the said elevated boardwalk as now constructed or hereafter constructed or extending along the inland line of the land hereby conveyed as an open public walk, and to reconstruct and maintain said walk between the point of the line relocated as aforesaid; second, to permit the owners of property contiguous thereto lying inland from the line so established and max-ked to connect their and each of their lands and properties with such elevated boardwalk 'by building and maintaining proper approaches for this purpose on the inland side thereof; third, that whenever a formation of land by accretion shall occur within the bounds of the land hereby conveyed to such axx extent that the high-water line of the ocean shall not be less than three hundred feet oceanward from the inland line so established, the gx-antee and its successors shall, upon the written request of the grantors, their heirs and assigns, owning not less than three contiguous city blocks of land hereby conveyed upon which such accretion may have formed, cause the elevated boax-dwalk erected thereoix to be moved oceanward three hundred feet or any less distance that such owners and the party of the second part may agree upon, and whenever the said elevated boardwalk shall be moved oceanward, by virtue of this provision, the inland line of the said park shall be m'oved oceanward to correspond therewith, and all the land hereby conveyed lying inland from the line so re-established shall be released from the dedication hereby made, and revert to the owners thereof, their heirs or assigns; fourth, that the lands hereby granted and dedicated to public use shall forever be and remain open so that the view oceanward from the said elevated public walk erected and to be erected as above mentioned shall be free, open and unobstructed, and that no use shall be made of the said land by the grantee, its successors or assigns, inconsistent with its use as a public park or place for public resort and recreation.”

The cleecl was acknowledged by the several grantors on April 8th, 1907, and proven by the grantees on May 15th, 1908, and recorded on May 16th, 1908, in book 383, page 124, &c.

Some time in August, 1924, during a severe storm, a barge was washed against the pier, and about one hundred and thirty-six feet of the pier was destroyed, of which break about fifty feet was landward of the exterior line as existed in 1878, and upon the land, extending between the ocean front of the McAllister land and said exterior line. At the time of the break the pier consisted of a floor decking twenty-nine and seventy-five hundredths feet in width, with a railing on each side. The pier, so far as the two pavilions and all else of it except the inshore end was in 1902, exactly as it was the time of its partial destruction, and has been there, except the inner end that has been cut off due to extending the boardwalk, from the time it was built to the said time (evidence complainant, pages 14 and 17), and that the Hein? Company were using the pier at the time of the break, just as they were when they were paying rent to the complainant, and there was no difference whatever in their treatment of the pier “to-day”'from what it was during the period of payment of rent, during which time the complainant made no objection whatever to the fact that there were pavilions on the pier, or that they were using it just as they are using it “to-day.” The words “to-day,” evidently, meaning the time of the break.

On December 18th, 1924, the complainant filed his bill praying that the said “H. J. Heinz Company, its contractors, officers, servants, agents and workmen be enjoined from performing, continuing or further proceeding with any work looking to the reparation or restoration of said pier or structure, and that said defendants be decreed to take down, destroy or undo any such work already done or performed.

That the continued existence of said pier or structure, and the use thereof for commercial purposes, be decreed to be inconsistent with the use of said land as a public park or place for public resort and recreation within the meaning of said act of the legislature, and a violation of the covenants contained in said grant, and the defendant, H. J. Heinz Company, enjoined from using the same for commercial purposes, and the defendant, city of Atlantic City, be enjoined from authorizing or permitting said structure to be so used.”

An order to show cause, with restraint, was advised, upon the hearing of which, by consent, an order was made permitting the defendant to construct a twelve-foot passageway over the construction already erected at the “break” for the purpose of removing the valuable articles then in the outer pavilion, and otherwise continuing the restraint until the final hearing, which occurred on June 26th, 1925. The last brief was received by the court on September 22d.

At the hearing on the order to show cause, the defendant presented a riparian deed from the State of New Jersejr, conveying to H. J. Heinz Company the “lands under water outside of the former riparian commission line of June 17th, 1876, now actually occupied by the aforesaid structure known as Heinz pier.”

In the examination of this cause, and the making of the orders herein, McAllister’s title has been accepted as extending only to the riparian line of 1876, that being the exterior line of the conveyance to him and his co-tenants.

In 1905 the court of errors and appeals, in Wm. Burkardt et al., defendants in error, v. H. J. Heinz Co., plaintiff in error, 71 N. J. Law 562, affirmed a judgment of the Atlantic county circuit court in favor of the plaintiffs in a suit of ejectment describing the lands in question, whereupon an agreement was entered into between the complainant and defendant, leasing the said land at a certain rental. This rental was paid until the defendant ascertained that a deed had been made to the city, when it ceased the payment of rent, insisting that McAllister had, by said deed, conveyed his title and interest to Atlantic City. Later, McAllister and his associates made application for a writ of mandamus to enjoin Atlantic City to procure title to the land within the limits of the “park,” and to cause the pier to be removed therefrom — the city filed a plea, to which a demurrer was filed. This was overruled. McAllister v. Atlantic City, 90 N. J. Law 93; affirmed, 91 N. J. Law 701.

McAllister and his co-tenant filed a bill in this court seeking to compel Atlantic City to specifically perform its covenant in the deed above recited, and that the land conveyed for park purposes should be forever “open and unobstructed.” A motion to strike out defendant’s answer was made and denied. McAllister v. Atlantic City, 90 N. J. Eq. 357.

The cause proceeded to final hearing with the result that the following decree was entered:

“This cause coming on to be heard upon bill, answer, replication and proofs, before the Honorable Edmund B. Learning, the vice-chancellor to whom the same had been regularly referred by the chancellor, in the presence of C. L. Cole, of counsel with the complainants, and Joseph B. Perskie, of counsel with the defendant, and the pleadings and proofs having been read and the arguments of counsel heard and considered, and it appearing that the city council of Atlantic City, being the governing body of said city, resolved to open and lay out along the beach or ocean front a public park or place for prrblic resort and recreation, and to devote the lands within the limits of such park or place of resort to such use exclusively under and by virtue of an act of the legislature of the State of Few Jersey, entitled 'An act to enable cities in this state, located on or near the ocean, and embracing within their limits or jurisdiction any beach or ocean front to open and lay out a public park or place of public resort or recreation on and along the beach or ocean front of such city, or to purchase or condemn lands, property and rights therefor, and to preserve the same from obstruction or encroachment/ approved April 26th, 1894; and it further appearing that the city council of said city for this purpose did, on the 8th day of October, 1899, duly pass an ordinance in the said city to lay out and open'such park and to establish the interior or inland lines thereof; and it further appearing that the city council of Atlantic City, by ordinance approved April 10th, 1907, relocated said interior or inland line between the middle line of Connecticut avenue and a point in the west line of Maine avenue twenty-five and two-tenths feet northwardly of the south line of Pacific avenue, so that the interior or inland line of said park is now as follows: (description),, and it further appearing that on the 8th day of April, 1907, of the tract described . in the deed aforesaid, the complainants were the owners of a part of the land described in said deed as a tract of land in the westerly line of Rhode Island avenue and easterly line of Metropolitan avenue, and south of Oriental avenue, and running southwardly between parallel lines of said avenues to the exterior line established by the commissioners appointed under the authority of the act entitled ‘An act to ascertain the rights of the state and of riparian owners in the lands lying under the waters of the bay of New York and elsewhere in this state/ and it further appearing that in the deed by the complainants to the defendant under date of April 8th, 1907, there was provided among the several covenants the following designated as ‘Fourth’;
“ ‘Fourth. That the lands hereby granted and dedicated to public use shall forever be and remain open so that the view oceanward from the said elevated public park erected and to be erected as above mentioned shall be free, open and unobstructed, and that no use shall be made of the said land by the grantee, its successors or assigns, inconsistent with its use as a public park or place for public resort and recreation
and it further appearing that at the time the complainants made the conveyance described in the deed under date of April 8th, 1907, they, the complainants, petitioned the said city of Atlantic City to relocate the boardwalk; and it further appearing that at the time complainants conveyed said land to the defendant, to wit, April 8th, 1907, there was and still is on a part of said land and premises what is commonly known as 'Heinz Pier/ a structure of, approximately, forty feet in width and five hundred feet in length, extending oceanward from the boardwalk with two enclosed pavilions thereon, the outer or larger one being oceanward of the exterior line and not within the lines of said park, and the smaller one being inland of the said exterior lines and within the lines of said park, and no part of which is on the land which complainants conveyed to the city of Atlantic City; that only about one hundred feet of the said pier between the two pavilions crosses the part of the land 'which the complainants conveyed to the city; that the said pier, though privately owned, was and still is at all times open to free public use for the purpose of recreation; that the land conveyed by the complainants to the defendant under deed dated April 8th, 1907, is wholly maintained as a public park or place of recreation except in so far as the structure Heinz pier may be thought otherwise as to the extremely limited territory which it occupies; that there has been no abandonment of the park plan by the defendant; and it further appearing that prior to the date of the conveyance by the complainants to defendant, to wit, April 8th, 1907, the land oceanward of the boardwalk lying between Connecticut and Maine avenues (a distance of five contiguous blocks), had moved oceanward so that the high-water line of the Atlantic ocean was more than three hundred feet oceanward of the said sixty-feet-wide street known as the boardwalk, and the complainants and others, owners of mo^e than three of said continguous blocks, petitioned the city council of said city to move the said boardwalk ocean-word, and thereupon did enter into a solemn agreement with H. J. Heinz Company of Pittsburg, owners of the Heinz pier, that, in consideration of the relocation by the defendant of the boardwalk, forty feet wide along the interior line of the beach front, approved by ordinance April 5th, 1907, said location cutting through at that width the iron pier' located at the ocean end of Massachusetts avenue, that if the defendant would not interfere or disturb the occupancy or possession of the said H. J. Heinz Company with the said pier as now erected on the lands owned or hereafter to be acquired by the defendants within the limits of the beach front park, unless such interference or disturbance should be by condemnation proceedings instituted against all piers on the ocean front carrying out a scheme for the acquirement by the city of all lands within said beach front park; and it further appearing that there are at least five other parcels of land, to wit, Heinz pier, Garden pier, Steel pier; Young’s old pier and Million Dollar pier, which piers and the land on which they stand, have, approximately, the value of $3,000,000, and that the defendant is unable to purchase or condemn the said lands; and it further appearing that there is no limitation of a determinable estate in the habendum clause in the deed by the complainants to the defendant; and it further appearing that complainants are not entitled to the relief prayed for.
“It is, on this 29th day of June, A. d. 1920, on motion of Joseph B. Perskie, of counsel with the defendant, by Edwin Robert Walker, chancellor of the State of New Jersey, ordered, adjudged and decreed that the defendant has not violated the covenants and conditions in the above-recited deed of conveyance set forth; that the complainants are not entitled to be restored to the free possession of the land described in their said deed or to have a reconveyance thereof; and that the complainants’ said bill of complaint be dismissed, with costs of suit to be taxed.”

I am bound by this decree. The testimony is undisputed that the use of this structure is the same as at the time of the previous suit, that the reconstruction will place the pier in and only in the same condition as at that time.

It was decreed that the defendant had not violated the covenants and conditions in the deed of conveyance, i. e., that the structure known as Heinz pier, or the use thereof, did not violate the covenants and conditions, and, being unchanged, it necessarily follows that the pier and the use thereof does not now violate them.

Much stress is made by the complainant that “the park is to be kept free, open and unobstructed.”

It is to be noted that Vice-Chancellor Learning in his decree specifically recited the condition that the lands shall remain “open,” &c., and decrees that “the defendant has not violated the covenants and conditions thereinbefore recited.”

A decree will be advised dismissing the bill.


author: Ingersoll, Y. C.

text:
    Charles Lippincott, administrator, &c., of Isaac V. Dickinson, deceased, complainant, v. Lillian Dickinson Purtell et al., defendants.
    [Decided December 9th, 1925.]
    Testator directed1 that “the residue of my estate remain as herein-before provided, and at the decease of my wife to descend to my lawful heirs.” Held, that by words “residue of my estate” testator meant his entire estate, whether derived from the sale of his real estate or otherwise; that it should go to the next of kin of the testator as ascertained by the statute of distribution in' force when the life tenant died; the gift of a legacy “at” or “when” or “after” a given event occurs vests only upon the happening of that event.
    On bill for instructions.

      Mr. Thomas G. Hilliard, for the complainant.

      Mr. H. Norris Mangan, for the defendant Lillian Dickinson Purtell.

      Mr. Charles A. Woolverton, for the defendants Charles F. Dickinson, Florence Dickinson, John Dickinson Stow and Joseph Irving Stow.
   Ingersoll, Y. C.

The complainant is the administrator cum testamento annexo of Christine B. Dickinson, who was the administratrix cum testamento annexo of Isaac Y. Dickinson, deceased.

Isaac Y. Dickinson’s will was probated on October 22d, 1872, and application is now made asking for a construction of it. The will, after directing the executor to pay the income thereof to his wife, and authorizing sale of real estate, reads:

“It is my will that my dear wife shall enjoy the annual profits of my estate, real and personal, during her natural life, and at her death my whole estate to descend to my daughter, Florence. But should my daughter, Florence, die before my wife without leaving issue, it is my will that $5,000 of my estate be paid over to my wife, and the residue of my estate remain as herein before provided, and at the decease of my wife to descend to my lawful heirs.”

Florence, the daughter, died on or about February 11th, 1883, and the wife was, on the 8th day of January, 1902, paid the $5,000 legacy given her. The wife, said Christine B. Dickinson, died on August 22d, 1924.

Isaac Y. Dickinson had two brothers, John W. and Charles G. Dickinson, who survived him, but died before the widow.

Charles G. Dickinson had two sons, both now deceased. One is survived by his only child, Charles Floyd Dickinson; the other is survived by his only child, Florence Dickinson.

J. W. Dickinson had two children, Lillian Dickinson Purtell, who is now living, and Lena Dickinson Stow, who is deceased, but survived by two sons, John Dickinson Stow and Joseph Irving Stow.

Lillian Dickinson Purtell claims the entire corpus of the estate, with the income thereof since the death of the widow.

Charles Floyd Dickinson claims one-fourth of the estate and income. Florence Dickinson also claims one-fourth thereof, and John D. Stow and Joseph Irving Stow each claim one-eighth thereof, leaving the remaining one-fourth to said Purtell.

The testator’s estate at the time of his death consisted of both real estate and personal property. The real estate was sold under the discretionary power vested by the will.

No evidence has been presented disclosing the relative amounts of the realty and personalty, or when the real estate was sold.

The entire residue must .be considered as personalty. Scudder v. Vanarsdale, 13 N. J. Eq. 109; Welsh v. Crater, 32 N. J. Eq. 177.

Counsel for defendants Charles Floyd Dickinson, Florence Dickinson, John Dickinson Stow and Joseph Irving Stow insists that J. ~W. Dickinson and Charles G-. Dickinson had a vested interest in this legacy immediately upon the death of the daughter, Florence, and that, therefore, those defendants take.

This contention must fail. It is a well settled rule of construction that a gift of a legacy “a.t” or “when” or “after” a given event occurs vests only upon the happening of the event. Clement v. Creveling, 83 N. J. Eq. 318.

The chancellor, in Scudder v. Vanarsdale, supra, held that the word “heirs” means next of kin.

That was the law at the time of the execution of the will by Isaac V. Dickinson, who was a member of the bar of this state, and it is to be presumed that he employed the word “heirs” in its meaning as then defined by this court.

That is still the law in this state.

Vice-Chancellor Reed, in Fisk v. Fisk, 60 N. J. Eq. 195, said: “Under our statute of distribution, as it stood previous to March 22d, 1899, it is entirely clear that the twenty-one nephews and nieces would have taken the residue to the entire exclusion of all the grand and great-grandnephews and nieces of the testator, By the statute as it then stood no representation among collaterals was permitted after brothers’ and sister’s children.”

This prohibitive clause against representation among col-laterals was not included in the revised act of March 22d, 1899 (P. L. 1899 p. 204), but in 1918 (P. L.-1918 p. 179) the proviso was restored.

The act of 1918 was in force when the life tenant died, and the distribution must be made to the next of kin according to the statute as it stood at that time.

The complainant will be advised to pay the residue of the estate to the defendant Lillian Dickinson Purtell.