author: Magie, Ordinary.

text:
    William J. Magie, Ordinary.
    Alfred Reed, Vice-Ordinary.
    In re will of William T. Hodnett.
    [Filed May 26th, 1903.]
    1. At the time of the instructions to Lord Cornbury, the English ecclesiastical courts had jurisdiction to require an executor, who had proved a will in common form, i. e., without notice to the persons interested, to prove the will in solemn form, i. e., upon notice to the persons interested.
    2. The powers conferred upon Lord Oornbury respecting the probate of wills included the power to require an executor to prove his will in solemn form.
    3. The powers thus conferred were possessed by the succeeding governors under royal appointment, and by the governors elected under the •constitution of 1776, and were transferred by the constitution of 1844 to the chancellors, sitting as ordinaries in the prerogative court. The power to require probate in solemn form has never been taken away (if indeed it could be) by legislation. Nor does the fact that instances •of the use of that power' are not discoverable, indicate that it has been .abandoned so that it cannot be now exercised in a proper case.

      4. An executor may, of his own accord, prove his will before the ordinary upon notice to all parties interested.
    5. A widow of a testator, who was a minor at the time the executor proved the will before the ordinary, and at the time of applying for relief, upon proof that there is fair ground for contesting the validity of the will, in respect to its execution, or the testamentary capacity of the deceased, or as to the will being the product of undue influence, presents a proper case for the exercise of the power to require the probate before the ordinary in solemn form on notice to all parties interested.
    On petition, &c.

      Mr. Charles II. Ilartshorne, for the petitioner.

      Mr. Richard V. Lindubury, for the executor.
   Magie, Ordinary.

On March 25th, 1902, a petition, signed by Thomas P. Fay and Emma S. I-Iodnett, was presented to the ordinal]1, praying that the last will of William T. Hodnett, deceased, and a codicil thereto, should be proved in the prerogative court and letters testamentary issued thereon to said Fay, who was appointed by said will executor thereof. The petition was sworn to. by both of the petitioners on the day it was presented. Accompanying the petition was an affidavit made by said Fay, which, in the mode usual in such cases, made proof that no caveat against the probate of any will of William T. Hodnett, deceased, had been filed in the office of the surrogate of the county of Monmouth, in which county said Hodnett was domiciled and in which he died. Thereupon two persons, who were the witnesses to both will and codicil, were presented, and, being sworn, made out the execution of both will and codicil by the deceased in the ordinary mode. Probate was thereupon allowed, and letters testamentary were issued to said Fay, named in said will as executor, and he thereupon took the usual and prescribed affidavit.

On November 19th, 1902, a petition was presented to the ordinary by said Emma S. Hodnett, represented by her father and next friend, Charles A. Anderson. The petition, among' other things, asserted that Emma S. Iiodnett was a minor, twenty years of age, residing with her said father in this state, and was the widow of said William T. Hodnett, deceased, who died at his residence, in the county of Monmouth, seized of considerable property; that Thomas P. Fay had for a long time been the legal, business and confidential adviser of said deceased, and continued to be such up to the time of the death of said deceased; that said Fay drew the said will and superintended its execution; that at the time it was executed the deceased was, by reason of disease, induced by dissipation, incapable of making a testamentary disposition of his property, and that the execution of the will did not conform to the requirements of the statute; that the codicil to said will was afterwards prepared by said Fay, and he also superintended its execution, and that its execution was not in accordance with the statute.

The petition further asserted, that after the death of petitioner’s husband said Fay acted as her confidential adviser, and that she had signed the petition for probate of the will and codicil at his request, and because she inferred from such request that it was her duty to do so.

It was also therein, charged that by the provisions of said will and codicil the said Fay obtains a large .share of the property of the deceased; that said deceased had previously made a will, when fully capable of making a testamentary disposition of his property, in favor of the petitioner; that it was duly executed, and, if not revoked by the later will and codicil, ought to be probated.

The prayer of the petition is that the order admitting to probate the will and codicil and granting letters testamentary thereon should be set aside; that petitioner should be permitted to prove the facts asserted in the petition, and to show that the will and codicil were procured by fraud and undue influence; that the earlier will should be admitted to probate and that said Fay (who, it was charged, had obtained that will from its custodian) should be ordered to deliver it to the court, and that he should be restrained from performing any act as executor under his letters testamenta^, and that petitioner should have such other relief as she should be entitled to.

Appended to the petition was-a copy of the earlier will men-tioned therein, with an affidavit of a New York lawyer, to the effect that such a will, dated January 14th, 1901, had been drawn by him under instructions from the deceased, and had been duly executed by the deceased, and that the copy annexed had been taken from an office copy of the original will, retained by him in accordance with his usual custom, and that the original will had been delivered by him to a person acting under authority from said Fay. There were also appended the affidavits of petitioner and of a servant residing in the house at the time the will and codicil were executed, supporting and affirming the matters charged in the petition, and the affidavits of physicians respecting the condition of the husband at previous periods of his life.

Upon the filing of the petition, an order was made directing said Eay and the persons interested under said will and codicil to show cause before the ordinary, on December 9th, 1902, why the order admitting the will and codicil to probate should not be revoked and annulled,- and why said Pay should not be ordered to deliver to the court the alleged prior will of January 14th, 1901, and why said Eay should not be restrained from performing any act as executor ox trustee until the further order of the court.

The order to show cause was brought to hearing on December 16th, 1902, to which time the matter had been adjourned under a stipulation of counsel.

On December 16th, 1902, Fay, the executor, filed an answer to the petition, supported by his own affidavit that the matters therein stated were true. The answer substantially denied many of the allegations of the petition. No replication to the answer was filed, nor was there any request for a direction to take testimony upon the contested questions of fact. The order was brought to hearing upon the petition and answer, and the affidavits accompanying each of them.

On behalf of the petitioner, it was first contended that the case disclosed a fraud perpetrated upon tlio ordinary, which ought to require and compel the vacation of the former action. The fraud charged was in the "representation that the widow of the deceased, who was in fact a minor, incapable of acting' for herself, had capacity to join in the application for probate. But the jurisdiction of the ordinary to grant probate of the will and codicil did not, in any respect, depend upon the application of the widow. If she had not joined in the petition, the application of the executor, upon the proofs submitted, would have justified the ordinary, under the practice and legislation presently to be considered, in proceeding to admit the will and codicil to probate. If, upon the petition in which she joined having been presented, it had been disclosed that she was a minor, that circumstance would not have deprived the court of jurisdiction. If, indeed, it had been further disclosed that Eay, who propounded the will and codicil upon an application in which he had procured her to join, knew that she was incapable of acting for herself, by reason of non-age, that circumstance might have caused the ordinary to pause and, perhaps, institute proper inquiry before allowing probate. But while the affidavits seem to properly make out that petitioner was in fact a minor, it is not made to appear that Fay knew that she was not of full" age, and he swears in positive terms that he had no knowledge of the fact. There is therefore no conscious, intentional deception of the ordinary shown, and since it was not necessary that the widow should have joined in the application, if the facts now appearing respecting her infancy had been then disclosed to the ordinary, he could, and probably would, have proceeded to allow probate. My conclusion is that this ground will not support the demand for a revocation or annulment of the former action of the ordinary in allowing probate.

But it is next contended that the case discloses fraud of such a character as to jnstifyr an immediate vacation of the probate. The fraud on which reliance is placed for this demand consists, it is argued, in procuring a testamentary disposition of property from a man incapable of mailing it by one who occupied a relation of trust and confidence, and that the disposition thus procured gave to this confidential agent and adviser a large share of the estate of the deceased, and that no sufficient proof appears to rebut the presumption that such disposition was obtained from undue influence arising from the recognized and admitted relation between Eay and the deceased. I do not deem it necessary to discuss this contention at length. It is to me a novel proposition that an order admitting a will to probate, made without objection and without deception of the court, may be vacated under an order to show cause, upon proof of the invalidity of the will because of incapacit3r, improper execution or undue influence. If, however, the proposition is well founded, this case is not within it. The allegations of fraud in the respects mentioned, if supported by affidavts, are met by positive denials. The case is not ripe for adjudication upon this claim, if any adjudication could be made.

But another contention made on behalf of petitioner demands consideration.

When the order to show cause came on for hearing, it was made to appear that notice had been given of an application by petitioner for an amendment of her petition, so that it might pray for an order or decree requiring the executor to prove the will and codicil, previously admitted to probate, in solemn form. Upon discussion, the application for such amendment was withdrawn, but petitioner’s counsel insisted that if the ordinary found, upon the case presented, that petitioner was entitled to such relief, it should be granted under the general pi^er of her petition. Much of the brief submitted for petitioner maintained the proposition that upon the matter before the court petitioner should have such relief, aiid that such relief is within the power of the court.

Upon consideration, I have reached the conclusion that if the case presented entitles petitioner to an order or decree requiring probate of this will and codicil in what is known as “solemn form,” and if this court can make such an order or decree on a petition for such specific relief, it will be the duty of the court to afford relief upon this petition. That sort of relief is germane to the specific relief prayed for therein, and therefore fairly falls within a general prayer for relief under the ordinary rules of equity pleading and practice.

The distinction between probate of wills in common and in solemn form, well recognized in the practice of the English courts of probate, seems not to have attracted much attention from our courts until the publication of the opinion of Chancellor McGill, sitting as ordinarjq in Straub's Case, 4 Dick. Ch. Rep. 264. In that case a will had been admitted to probate by a surrogate without objection. After the time for an appeal from the surrogate’s act had expired, the orphans court, upon a petition presented to it, alleging that the will was the product of fraud and undue influence, and praying that the surrogate’s probate should've set aside, allowed an order to show cause why the prajrer of the petition should not be granted, and, upon argument, discharged that order. Upon an appeal to this court from the order last named, the ordinary determined that the orphans court was without jurisdiction to initiate such a proceeding. But he proceeded to express an opinion that upon an application to the surrogate, although made after the time for an appeal from his act had expired, the surrogate would have jurisdiction to cite the parties interested to appear before the orphans court, which court would have jurisdiction to require an executor to prove the will in solemn form.

The decision of the ordinary in that case was affirmed by the court of errors, for the reasons given by him. Scharer v. Schmidt, 5 Dick. Ch. Rep. 795. But the approval of the decision was not intended to indicate approval of the opinion of the • ordinary respecting the jurisdiction to require probate in solemn form, as was shown in the per curiam opinion shortly afterward delivered, in Gordon v. Olds, 7 Dick. Ch. Rep. 319.

Afterward, the opinion expressed by the ordinary, respecting the jurisdiction of the surrogate and the orphans court in such cases, was put to a judicial test. A will was admitted to probate by the surrogate of Essex county, without objection. The time for appeal had expired. Thereafter, parties interested applied to the surrogate for citations to the executors and all parties interested, requiring them to appear before the orphans court of that county for a probate of the will in solemn form. The orphans court declined jurisdiction, and, upon an appeal to this court, the action of that court was approved and affirmed. The court in reaching that conclusion, felt bound to treat the opinion of the ordinary ,in the Straub Case as not correctly expressing* the powers of the surrogate and orphans court in- such matters. It was held that after a will had been admitted to probate by a surrogate, and no appeal had been taken within the time limited by statute, no jurisdiction existed in the surrogate to refer to- the orphans court the question of probate -in solemn form, and no jurisdiction existed in the orphans court to direct such probate. In re Cartwright’s Will, 51 Atl. Rep. 713.

Upon appeal to the court of errors and appeals, the decree of the prerogative court was affirmed, for the reasons expressed in the opinion delivered in that court.

In delivering the opinion in the Cartwright Case, I expressly refrained from considering the power of this court in respect to probates in solemn form of wills produced and probated before the ordinary. The statutory jurisdiction conferred upon surrogates and orphans courts was deemed not to extend thereto after the time for appeal had elapsed. Whether the ordinary might not require a will proved before him to be again proved in solemn form, was not decided, and decision upon his power and duty in that respect is now required.

' An examination of the practice of the English ecclesiastical courts, and of the courts which have succeeded to their jurisdiction in matters of probate, discloses the distinction made in those courts between probate in common and probate in solemn form. Originally a probate in common form was allowed upon the mere production, of the will, accompanied by the affidavit of the executor that he believed it to be the last will of -the deceased testator. Thereafter the executor could be required, under certain circumstances, to prove the will in solemn form.

In the third edition of Conset’s Practice of the Spiritual or Ecclesiastical Courts, published in 1708 (p. 10), the practice under the powers of the court is thus stated:

“If any will be proved in common form (which is done by the sole oath of the executor), if any person have an interest in the administration of the deceased’s goods (being perhaps prevented of' his interest by the pretended will), he may force the executor to prove the will by witnesses, which, if the executor do not sufficiently prove, sentence is to be given that the deceased died intestate and that the probate of that will, so granted in common form of law, is to be annulled and revoked.”

This probate was also called probate per testes, because the executor was required to produce evidence of the execution of the will, including the witnesses thereto, if any, upon notice to the parties interested, involving opportunity for them to appear and be heard. But that the distinction between the two forms of probate was not deemed to depend on the fact that the witnesses to the will were required to be examined for a probate in solemn form, which was not necessary to a probate in common form, seems clear. For, after the English Wills act of 1837 took effect, the allowance of probate in common form was upon an affidavit of one or more of the witnesses to the will, making out its execution in conformity with the requirements of the act. Yet, thereafter, probate in solemn form was frequently required. This course of practice indicated that probate in solemn form was resorted to, not because the witnesses to the will had not been produced and examined, but because the examination was wholly ex parte, no^ opportunity being given to any party interested to appear and make objection, and interpose with cross-examination, and the production of testimony. ■ So we are justified in the view that the real distinction between the two classes of probate consisted in the facts that one was allowed without notice and the allowance of the other was only upon notice to the parties interested, with opportunity to attend and be heard on the question of probate.

It is unquestionable that the jurisdiction in matters of probate and administration which existed in the English ecclesiastical courts at the time of the instructions to Lord Cornbury, in 1702, were by those instructions conferred upon the governors of New Jersey. That jurisdiction was .exercised by the successive governors of the province or colony, and of the state, after it was established by the constitution of 1776 and the successful revolution of the United States. By the constitution of 1844 the same jurisdiction was transferred to the chancellor, whose appointment was thereby provided for, to be exercised by him as ordinary, sitting in the prerogative court. The jurisdiction of the governors over matters of probate was, in 1843, discussed by Pennington, ordinary, and traced to the instructions to Lord Cornbury. In re Coursen’s Will, 3 Gr. Ch. 408.

The English ecclesiastical courts undoubtedly possessed power to require a will, which had been admitted to probate without notice to the parties interested, to be proved thereafter in solemn form upon notice to such parties. Conset's Pr. 10; Trist. & C. Prob. Pr. 353; Browne Prob. Pr. 99, 275; 4 Burn Eccl. Pr. 196, 199; Pow. & O. Prob. Pr. 103. Was that power conferred upon the successive colonial and state governors and transmitted to the chancellor sitting as ordinary ? If the power now resides in the ordinary, in what case should it be exercised?

In his opinion in the Straub Case, Chancellor McGill fortified his position by declaring that the exercise of the power to require probate in solemn form, even after the lapse of a long period of time, was not oppressive upon the executor, because he might have proved the will originally in solemn form with notice to all parties interested. In the opinion delivered in the Cartwright Case, I pointed out that such a probate could not have been obtained by an executor of a will which was uncontested and which was offered for probate before the surrogate. But the power of an executor to prove a will before the ordinary in solemn form, and with notice, although no caveat has been filed and no contest made thereon, was plainly recognized in the English practice. It is thus stated by Conset:

“If an executor who is a stranger to the deceased (that is) no way related to him, have the greatest part of the deceased’s goods bequeathed to him, and is doubtful lest the children or next of kin or widow of the deceased-should commence suit against him for the future, he may, by virtue of that will, call the relict and children or next of kin of the deceased in special (if they think themselves any wa,y interested), and all others whatsoever in general that pretend to have any interest in the last will and testament of the deceased, or in the administration of his goods, to come and see the will proved by witnesses, and lawful proof being made of this will and a definitive sentence passed for the validity of it, this will can never be made invalid or voidable thereafter (so as there be no nullity in the proceedings) though the testamentary witnesses die in the meantime. And this is frequently practiced.” Conset’s Pr. 10; 4 Burn Eccl. Pr. 199.

Citations in such cases were said to he mandatory and intimatory, because they not only cite parties to appear, but intimate that if they appear not, the executor will proceed to prove the will. 4 Burn Eccl. Pr. 27.

The ancient practice seems still continued, for it is said that an executor may prove the will in solemn form, either of his own motion or in consequence of having been challenged to do so by a party interested adversely, and executors are advised to do so for their own protection. Trist. & C. Prob. Pr. 363; Pow. & O. Prob. Pr. 103.

This provision, in my judgment, has long been recognized in our legislation. Such recognition seems also to involve the inference that where the executor fails to prove the will thus, the power of the ordinary to require him to do so may, in any proper case, be exercised.

By section 2 of the act entitled “An act respecting the prerogative court and the power and authority of the ordinary,” approved April 16th, 1846 (Rev. Siat. ¶. 203), it was enacted that probate of any will should not be granted by the ordinary until proof be made to his satisfaction that no caveat against proving such will had been filed in the office of the surrogate of the county where the testator resided at the time of his death, or that notice to all persons concerned had been given of the application to the ordinary for such probate. This provision is included in section 16 of the act entitled “An act respecting the orphans court and relating to the powers and duties of the ordinary and the orphans court and surrogates,” approved March 27th, 1874 (Gen. Stat. p. 235-9), and is now included in the act of the same title, approved June 14th, 1898. P. L. of 1-898 p. 718.

In my judgment, this legislation, has always permitted an executor who propounds his will before the ordinary to adopt one of two alternatives, viz.: (1) to submit the will upon mere proof-that no caveat has been filed in the comity in which the testator had his residence at the time of his death, or (2) to give notice to all persons concerned of the application for probate. If he adopts the former. alternative and satisfies the ordinary that no caveat has been filed, he may then propound the will and obtain his probate without having given any notice. If, however, a caveat has been filed, the ordinary would not proceed to allow probate except upon notice. But the alternative provision is so general ás to indicate plainly that it was intended to permit the executor to proceed for probate upon such notice, whether a caveat had been filed or not. Upon this construction of the act, it follows, in my judgment, that any person noticed to attend the probate must be admitted to cross-examine the testamentary witnesses and to produce evidence on the matter of the will, and a contest against the will could be maintained by him. It also follows that any person who has been noticed to attend and has refrained from attending, or who has attended and made no contest, would be thereafter estopped by the order admitting the will to probate from any further contest, at least on matters then apparent or discoverable. If any j>arty concerned, and noticed to attend, was an infant, there can be no doubt, I think, that the incidental powers of the ordinary would extend to the appointment of a guardian ad litem, by- whom the infant might appear, pursuant to the usual practice of courts having equitable and ecclesiastical jurisdiction. The notice would seem to be necessarily personal, there being no provision, as there is in some states, for substituted or constructive notice, by publication, &e. Am. & Eng. Encycl. L. (lsi ed.) 180.'

This sort of probate on notice, in cases where no contest was made over the will, as has already been stated, was recognized practice of the English ecclesiastical courts, and is also a practice of tire present probate courts. Executors might prove a will in solemn form, either of their own motion or in consequence of having been challenged to do so by a partj' interested adversely. Executors are advised to thus prove their will for their own protection. Trist. & C. Prob. Pr. 363. The present requirements of the probate court for obtaining á decree for .probate in 'solemn form in an uncontested action are set out in •the same book (at p. 852 el seq.), and it is therein declared .that the recognized difference between a probate which has been granted in common form and a probate which has been granted in solemn form, is that the former is revocable, and the latter, provided proper precautions have been taken, is, subject to one exception, irrevocable. The one exception seems to be the after discovery of a will later in date, than that admitted to probate. Trist. & C. Prob. Pr. 355. Another exception is said to be where the decree has been obtained by fraud or collusion. Pow. & O. Prob. Pr. 103.

Whether or not the ordinary did not possess power to permit probate of an uncontested will, on notice, before the act of 1846, above cited, need not be determined. But, as it was a practice of the ecclesiastical courts of England, whose powers were conferred on the governors of the colony and state, it would seem probable that such legislation, adopted shortly after the period when the chancellor became ordinary under the constitution of 1844, was rather a regulation of a practice recognized as existing.

At the June term, Chancellor Halsted had under consideration . case presenting the following features: A will of 'a non-resident of this state had been admitted to probate by •him, sitting as ordinary, and without notice. Afterward a petition was presented to him, praying for the vacation of the probate thus granted. An order upon the executor, to whom letters testamentary had been issued. thereon, to show cause whjr the order admitting the will to probate should not be vacated, was made and brought to hearing upon the petition and affidavits made in opposition. The ordinary reached the conclusion that the probate should be vacated, upon a consideration of the terms of section 2 of the act of 1846, above cited. As it appeared that the testator was not a resident of this state at the time of his decease, and it was obvious that the proponent of the will could not have been entitled to probate under the first alternative proof, viz., that no caveat had been filed with the surrogate of the count]' where the testator resided at the time of his death, the ordinary held that it was essential for the proponent to have made proof under the second alternative, viz., that notice had been given to all persons concerned of the. application for probate. As it further appeared that no such notice had been given,_ the conclusion was that the probate had been improperly granted, and it was vacated. In re Lawrence, 3 Hal. Ch. 215. I have examined the record of the order made by the ordinary in that cause and find that, in addition to vacating the probate previously granted, it was further ordered that if application, for probate of the will should be afterwards made, it should be upon notice.

I have been unable to discover any other case involving the construction of the legislation abov.e referred to in these respects, or throwing any light- on the question now under consideration, until the opinion expressed in the Straub Case.-

This examination seems to indicate that the power to order a -will which has. been admitted to probate without notice to be afterwards proved with notice, has either not been exercised, or hag been exercised in rare instances, which have not been contested and have escaped notice. But I am.unable to draw therefrom the inference, that such power has never existed in the ordinary, or that it has been so abandoned as to prohibit its exercise in a proper case. That such power existed in the English ecclesiastical courts, and was among those |>owers conferred upon the ordinary of the colony and state, I deem to be entirely beyond dispute. That it has not been (if, indeed, it could be) taken away from the ordinary by legislation, I deem equally clear. Its disuse does not show abandonment, if it could thus be abandoned;

For these reasons I deem myself possessed of authority to require an executor who has prayed a will before me without notice, to prove the same will with notice to all the parties whenever a proper case for such action is presented. The remaining question is,, what is a proper case requiring such action?

This question, if thoroughly considered and completely answered, would involve1 much that would.be entirely unnecessary to the decision of this case. It would require me to trace the limits and fix the bounds of my jurisdiction in this regard. For example, Chancellor McGill, in the Straub Case, declared that the demand for probate in solemn form might be made at any time within thirty years. It is said as to the present English practice that any party whose interest is adversely affected by a probate granted in common form, majr, without any limitation of time, call it in and put the party who obtained it, or his representative, upon proof of the will in solemn form. Trist. & C. Prob. Pr. 353. But there is legislation in England protecing an executor against payments, &c., made before the revocation of the probate under that practice. The ancient practice seems to have considered a time to be limited, according to Swinburne, to ten years, but according to Dr. Go dolphin, to thirty years. 4 Burn Eccl. Pr. 199. Obviously, I ought not to. de termine in this case the extent of time within which such relief may be sought, for if a party seeking relief comes without laches, as the petitioner does, the question -of the extent of the limitation of time is of no consequence. Nor is it necessary in this case to definitely determine what kind or what amount of proof is requisite to move the court' 'to grant such relief. Under the English practice it wou.ld seem that the court exercised its power to require probate in solemn form almost as a matter of course. When the probate was granted upon the mere affidavit of the1 executor that he believed the instrument propounded was the last will of the decedent, there would seem to be a reason for such a practice, which would not apply where probate, though without notice, is only granted upon proof of the instrument as a will. Yet, in many cases, ground was shown.for the exercise of the power. Under our practice, pursuant to which a contest may be raised by anyone interested by caveat or appeal, I think probate in solemn form ought, not to be compelled; except upon some good ground shown. It is manifestly unnecessary to prove that the probate previously granted had been improperly granted by showing that testator did not in fact possess testamentary capacity, or that the will was in fact the product of undue influence, &c. It will be sufficient to justify the ordinary in requiring probate on notice if there is made to appear to him a fair ground for contesting the validity of the will in respect to its execution, or the testamentary capacity of the testator, or as to the will being the product of undue influence.

It is equally unnecessary to decide in this case who may apply for probate in solemn form. If any person, who is sui juris, has knowledge of the death of the testator and of •grounds for contesting his will, or might by due diligence have discovered such grounds, and has neglected to caveat against probate being-' granted, it could hardly be conceded that he could afterward be heard to demand that an executor should be required to reprove the will on any such grounds.

Applying these views to the case in hand, I think the power to require probate in solemn form' ought to be exercised. Petitioner, the widow of the deceased, appears to be a minor. If the executor had elected to prove the will on notice to all persons concerned, he would have been obliged to give notice to her, and, unless some, person appeared for her, tó procure the appointment of a guardian ad Kiem for her, who would have represented her in the proceeding. She is therefore a person concerned, who may now apply for this relief by a next friend, ■and it cannot be denied that the application has been made within a reasonable time.

The facts asserted and admitted, in my judgment, justify the conclusion that a case for relief of this nature is presented. The will and codicil were admittedly drawn by the legal adviser and confidential agent of the deceased. Testator is admitted to have been addicted to the excessive use of intoxicating liquors, as a result of which he suffered many attacks of delirium tremens, and from time to time was treated in sanitariums. There is evidence of his condition, at or about the time the will and codicil were executed, sufficient to justify inquiry as to his capacity. There is further evidence respecting the mode of execution of the will and codicil sufficient to justify the examination of the persons present at the execution, and particularly the persons who signed as testamentary witnesses.

It is not improper to acid that these considerations are reenforced by tire admitted fact that petitioner, under a previous will, was given a much larger share of her husband’s estate, and under the will and codicil here in question her share is much diminished and a large share of the estate is given to testator’s friend and adviser, who drew and superintended the execution of these papers.

My conclusion, therefore, is that the executor in this case should be required to prove this will and codicil in solemn form, upon notice to all parties concerned. A convenient practice in that regard is that now in use in the English probate courts, whereby the executor is cited to bring in his probate and to show cause why it should not be revoked and the will pronounced invalid. Trist. & C. Prob. Pr. 367.

An order, will be made continuing the restraint upon the executor, and directing him to bring in his probate on a day fixed, of which he shall give notice to all parties concerned, and on that day to proceed to prove the will as if propounded upon notice.


source: Caselaw Access Project

author: Dixon, J.

license: Public Domain

text:
    William N. Coler, Jr., appellant, v. The Tacoma Railway and Power Company et al., respondents.
    [Filed March 2d, 1903.]
    An arrangement haying been'made between the Tacoma Railway and Power Company,- a corporation • of this state, and the Seattle-Tacoma Interurban- Railway, a corporation of the State of Washington, by which the New Jersey company should--transfer all its property and franchises, except the franchise of being a corporation, to the Washington company, arid the latter should issue therefor to the New Jersey company twenty thousand shares of fully-paid stock of the par value of $100 per share, or, in case any stockholder in the New Jersey company refused to accept such stock in exchange for his own stock share for share, then the Washington company should jiay $35 cash in lieu of each share so refused — Held, on bill filed by a stockholder in the New Jersey company, that the consummation of the arrangement ought to be restrained, because — (1) it was tantamount to a dissolution of the New Jersey corporation, within the meaning- of our statute, and therefore could be legally carried out only by such proceedings as our statute prescribed for dissolution; (2) under the constitution and judicial decisions in Washington, it is unlawful to issue corporate stock as fully '.paid, for less than, its par value, and the above arrangement, .shows on its face a purpose to issue such stock for thirty-five per cent, of its par value; (3) under the constitution and judicial decisions in Washington, it is unlawful for any corporation to hold stock and exercise the usual rights of stockholders in a corporation of that state.
    On appeal from an order advised .by Vice-Chancellor Emery, whose opinion is reported in 19 Dick. Gh. Rep. 117.

      Mr. Chandler W. Riker, for tire appellant.

      Mr. Richard V. Lindabury, for the respondents.
   The opinion of the court was delivered by

Dixon, J.

The Tacoma Railway and Power Company is a corporation organized under the laws of this state, having a capital stock of twenty thousand shares, of the par value of $100 each, and owning and operating a street- railway in the city of Tacoma, in the State .of Washington. The Seattle-Tacoma Interurban Raihvay is a corporation organized under the laws of the State of Washington. The present bill is filed by a stockholder of the Npw Jersey company against that conipany, its officers and directors, to prevent the consummation of an arrangement by which the company is to transfer all its property and franchises) except the franchise of being a corporation, to the Washington comipan3p and is to receive therefor twenty thousand .shares of stock in the latter eompanjf, of the par value of $100 ■each, besides certain assumptions and guaranties; but if any stockholder of the New Jersey company should be unwilling to exchange his shares of stock for an equal number of shares of stock in the Washington company, then the latter company , is to pay the Now Jersey company $35 in cash for each share held by the unwilling stockholder, in lien of an equal number of shares in the Washington company. The twenty thousand shares of stock which the Washington company agrees to give will be created by an increase of its capital stock to that extent.

The power of the New Jersey company to carry out this scheme is based by the defendants on the seventh paragraph of its certificate of incorporation, in these words-:

• “With the assent in writing and pursuant to a vote of the holders of a majority of the stock issued and outstanding, and not otherwise, the stockholders having been formally convened in meeting, the directors shall have power and authority to sell, assign, transfer, mortgage or otherwise dispose of the whole property of this corporation.”

This clause does not confer the necessary power. It authorizes the transfer of property only, while the arrangement in question requires the transfer, not merely of all the property, but also of all the franchises of the company, except the franchise of being a corporation. A corporation which has sold only its property, receiving therefor a valuable consideration, is still able to engage in new enterprises within the scope- of its charter; but one which has parted with all its franchises except that of existence, is, for all purposes, outside of the winding up of its affairs, defunct. It is in the exact condition contemplated by our statute as that of a dissolved corporation, for the fifty-third section of our Corporation act (P. L. of 1S96 p. 277) provides that

“all corporations, whether they expire by their own limitation or.be annulled by the legislature or otherwise dissolved, shall be continued bodies corporate for the purpose of prosecuting and defending suits by or against them, and of enabling them to settle and close their affairs, to dispose of and convey their property, and to divide their capital, but not for the purpose of continuing the business for which they were established.”

That such, dissolution was regarded as the practical effect of the present arrangement, and so intended by the directors and stockholders who favored it, is made evident by the fact that, at the same meetings at which the arrangement was approved, they voted for a formal dissolution of the company under the statute. The mode in which a New Jersey corporation can voluntarily effect its own dissolution is prescribed by section 31 of our act, and, of course, no other mode can legally be adopted. It is conceded that this mode was not pursued, and it seems, necessarily, to follow that the plan which involves dissolution is not yet capable of lawful consummation.

But if the proposed transfer be not considered as a dissolution within the intent of the statute, still there is reason why it should be enjoined.

According to the decisions of the courts of Washington, it is unlawful to issue corporate stock as fully paid 'up unless the corporation receives therefor money, or money’s worth, to the face value of the stock, and, when such stock is issued for property, the judgment of the corporate directors respecting the value of the property is not conclusive against innocent creditors, in whose favor shares so issued will be assessable until the face value is paid in. Adamant Manufacturing Co. v. Wallace, 48 Pac. Rep. 415; Manhattan Trust Co. v. Seattle Coal and Iron Co., 53 Pac. Rep. 951. Besides these decisions, the state constitution (article 12, paragraph 6) declares that “all fictitious increase of [corporate] stock or indebtedness shall be .void.” This phrase, “fictitious increase of stock,” must, I think, include an issue, of new stock when both the corporation and the recipient of the stock know that it is being issued for less than its face value.

Such knowledge is shown in the present case by the very terms of the proposal — for the Washington company offers a share of its stock, having a face value of $100, or in lieu thereof $35 in cash, as the unit of tire price at which it will buy the property and franchises of the New Jersey company, thereby indicating, beyond dispute, that in this transaction the share and the cash are deemed of equal value. To the extent of sixty-five per cent, of the issue, the increase of. capital stock will be. therefore “fictitious,” and, according to the constitution, “void.” Such a scheme ought not to be forced upon an unwilling stockholder of the New Jersey company. He is entitled to require that his company shall not be stripped of its property and franchises for a counterfeit which is offered and about to be accepted as genuine.

In yet another aspect this arrangement should be disapproved. '

The courts of Washington have decided that one corporation cannot subscribe for, purchase, hold or vote upon the shares of stock of another corporation without legislative sanction, and that the legislature of the state has never sanctioned such acts. Denny Hotel Co. v. Schram, 6 Wash. 134; Parsons v. Tacoma Smelting and Refining Co., 65 Pac. Rep. 765. This doctrine rests altogether on considerations of public policy. But it is said that the polic3r, as declared, extends only to domestic corporations, and whether it should embrace foreign corporations is a matter to be decided by the courts of that state alone. I do not understand that the policy is so restricted. One of its objects is to prevent one corporation from interfering with, the control of another. This was the purpose to be sub-served by the decision in Parsons v. Tacoma Smelting and Refining Co., just cited, where, although the title of the stock-holding company was not assailed, its right to vote upon the stock was denied. It is true that the stockholding company was a domestic corporation, but the denial of its right to vote could not be based on that circumstance. The doctrine that it was impolitic to allow a corporation, whose chartered powers were subject to modification at the will of the state, to exercise control over a domestic corporation, would seem, necessarily, to imply that it was deemed equally impolitic to permit such control by a corporation whose chartered powers were generally independent of the state. The application of the restriction to a foreign corporation is a mere interpretation, not an extension, of the doctrine.

But if it be an extension, the extension is made by the constitution of Washington, which-provides (article 12, paragraph 7) that

“no corporation organized outside the limits of this state shall be allowed to transact business within the state on more favorable conditions than are prescribed by law to similar corporations organized under the laws of this state.”

The decisions already cited are clearly to this effect — that if a Washington corporation owned property immovably fixed in that state, it could not lawfully bargain to exchange that property for stock in another Washington corporation, and, after completion of the exchange, exercise in the other corporation all the rights and privileges of a private stockholder. If this New Jersey corporation can legally do what is thus prohibited to a Washington corporation, then the foreign corporation is allowed to transact business in Washington on conditions more favorable than those prescribed for its domestic corporations. The constitution forbids this.

On these grounds, we think that the carrying out of the arrangement should be enjoined.

Let the order of November 22d, 1902, discharging the order to show cause, be reversed, and a preliminary injunction be issued in accordance with the order of this court made on December 3d, 1902.

For reversal — The Ohiee-Justice, Van Syckel, Dixon, Fort, Garretson, Hendrickson, Pitney, Bogert, Vreden-BURGH, VOORHEES, VROOM. 11.

For affirmance — None.


author: Per Curiam.

text:
    James L. Hayes, complainant and respondent, Daniel Pierson, Jr., et al., defendants and appellants.

    [Filed November 20th, 1899.]
    The rule adverted to in Landis v. Sea Isle City Motel Go., SI Atl. Rep. 155 (on appeal, 8 Dieh. Gh. Rep. 651/), that directors do not sustain toward creditors of a corporation the relation of trustees, so as to render them liable to such creditors for the negligent management of the ordinary business affairs of the corporation, has no application to the case of a receiver of an insolvent corporation, suing its directors, where the mismanagement, producing insolvency, consists in diverting all the assets of the company to the directors themselves or to a company of which they are the sole stockholders.
    Oil cross-bills.

      Mr. James E. Howell, for the appellants.

      Mr. Edward A. Day, for the respondent.
   Per Curiam.

The decree appealed from is affirmed upon the grounds stated by Vice-Chancellor Stevens, who delivered the following opinion:

This is a bill filed by the receiver of the Celluloid Emery Wheel Company against Daniel Pierson, Jr., and Albert C. Courter, two of its directors, and against the Electric Emery Wheel Company, a corporation of which Pierson and Courter are directors and stockholders.

The receiver charges that the defendants, Pierson and Courter, violated the trust reposed in them as directors of the celluloid company in two particulars.

In the first place, it is said that they concurred in giving to Pierson, as president of the celluloid company, an excessive salary.

In the second place, it is said that, as executive officers of that company, they entered into a contract with the electric company (of which they were directors and sole stockholders), the purpose and effect of which was to divert the business and assets of the celluloid company to the electric company, and that one of the means by which this diversion was effected was a fraudulent suit, based on an alleged breach of the above contract, resulting in a judgment against the celluloid company and an execution and sale of its tangible assets to the electric company.

The caso was heard on the pleadings and proofs. At the hearing the complainant called witnesses to sustain the allegations of his bill. The defendants called no witnesses to disprove the complainant’s .charges. They took the position that as the salary was voted and the contract was made while the celluloid company was a going concern and solvent, the directors did not then sustain toward the creditors-of the company the relation of trustees, and that they are not liable to account to tire creditors or to their representative, the receiver, for their management or mismanagement of its affairs. The authority cited was Landis v. Sea Isle City Hotel Co., 31 Atl. Rep. 755; on appeal, 8 Dick. Ch. Rep. 654.

The rule thus formulated may, in general, be true, but it has no application to a case in which the mismanagement, producing insolvency, consists in diverting all the assets of the company to the directors themselves or to a company of which they are the sole stockholders. For such a breach of trust the receiver may, I think, sue for the benefit of creditors.

Besides, the argument rests upon the assumption that the right of the receiver is identical with that of the creditor. This is not the case. The receiver is, it is true, the representative of creditors, but he is also the representative of the corporation and of its stockholders. If either the corporation or its stockholders may inquire into the acts charged in this bill the receiver may. It is averred in the answer that there are four stockholders of the company, viz., the defendants, Courter and Pier-son, who each hold one hundred shares; one Zimmerman, who holds one hundred shares, and one Beecher, who holds three shares. As to Zimmerman, it is said that he concurred with Courter and Pierson in doing, the illegal acts charged. On the question whether he did or did not, there is another suit now pending in this court. It is not pretended that Beecher concurred. The case as to him is, beyond any question, within tire rule laid down in Gardner v. Butler, 3 Stew. Eq. 702. Besides this, it seems to be clear that, as the representative of the corporation, the receiver is at least entitled to recover such sum as may be necessary to defray the expenses of the receivership. An account is therefore clearly demandable.

Nearly everything is in dispute in this case. It is disputed whether the stockhold¡ers are estopped from questioning the acts of Courter and Pierson; it is disputed whether the corporation is indebted in anything but a small sum of money; it is not known what the costs of administration will be; moreover, the evidence upon which to base a final decree is wanting.

The defendants have not shown why Pierson’s salary was doubled shortly before the company appears to have almost altogether ceased business and thereafter continued at the same rate; they have not attempted to show and it does not appear what would have been fair compensation for the service actually rendered. It is not clearly shown to what extent, if at all, the electric company profited by entering into the contract. Under these circumstances it is hardly possible to do more at present than to send the case to a master with directions as to the mode in which the account shall be taken.

For affirmance — The Chiée-Justioe, Depue, Yan Syoxel, Dixon, Gummere, Collins, Lippincott, Ludlow, Bogert, Adams, Nixon, Hendrickson, Yredenburgh — 13.

For reversal — None.


author: Fort, J.

text:
    The Borough of Madison, complainant and appellant, v. The Morristown Gaslight Company, defendant and respondent.
    [Filed March 2d, 1903.]
    1. The authority conferred upon the Morristown Gaslight Company, by section 1 of its charter, to sell gas for the purpose of lighting the streets, buildings, manufactories and other places, situated in Morristown and its vicinity, does not authorize that company to enter into the independent municipality of Madison, four miles distant from Morris-town, and lay pipes in the streets thereof.
    2. The authority, conferred by section 2 of the defendant company’s charter, to lay down their gas pipes * * * in the streets, alleys, lanes, avenues and public grounds of Morristown and its vicimty, does not authorize them to lay their gas pipes in the streets of other places, constituting independent municipal governments, beyond and outside of the municipal corporation of which the unincorporated village of Morristown was a part in 1855.
    On appeal from a decree advised by Vice-Chancellor Stevens, whose opinion is reported in 18 Dick. Ch. Rep. 120.

      Mr. Charles A. Rathbun, for the appellant.

      Mr. Joseph Cross and Mr. Willard IF. Cutler, for the respondent.
   The opinion of the court was delivered by

Fort, J.

The bill in this case is filed by the borough of Madison to enjoin the defendant company and its agents from digging trenches and the like in Madison avenue in said borough.

The Morristown Gaslight Company was incorporated by special act of the legislature, approved February 19th, 1855. P. L. of 1855 p. 7p By the first section of the act it is provided that the company "shall have power and authority to manufacture, make and sell gas * * * for the purpose of lighting the streets, buildings, manufactories and other places, situated in Morristown and its vicinity, and to enter into and execute contracts, agreements or covenants in relation to the objects of the corporation.” The second section enacts that tlie corporation shall be "empowered to lay down their gas pipes, and to erect gas posts, burners and reflectors in the streets, allejrs, lanes, avenues and public grounds of Morristown and its vicinity and the dwellings, stores and other places situated therein.”

The borough of Madison was incorporated in 1889, under the Borough act of 1878, and is now governed by the General Borough act approved April 24th, 1897. P. L. of 1897 p. £95 § 96. By section 28 of the Borough act of 1897, boroughs are given power "to prescribe the manner in which corporations or individuals shall exercise any privilege granted to them in the use of any street, road or highway, or in digging up the same for any purpose whatever,” and further "to provide for the sewerage or drainage of the borough and for the laying of pipe for the conveyance of water and gas for private or public use in the streets, highways or alleys, or beneath the sidewalks of said borough, and to regulate the same.” The defendant company in this case is admittedly in the act of opening Morris avenue without the consent of the borough; the defendant claiming that, by its charter, it is empowered to lay down gas pipes "in the streets, alleys, lanes, avenues and public grounds of Morris-town and fits vicinity,” without interference by any municipal’ or other authority so long as it does not affect or impede public travel, "'and it shall restore the highways opened by it and leave the same in as good condition as before.” P. L. of 18,55 p. 7-4 § *.

At the time the charter'was granted to the defendant company, Morristown was quite compactly settled and was a part of Morris township, in the county of Morris, but was not incorporated. Madison was likewise an unincorporated village, situated within the township oi Chatham, in Morris county. Madison is about four miles from Morristown. 'Morris township and Chatham township adjoined in 1855, and that part of Chatham township out of which the borough of Madison was carved in 1889 lies adjoining the Morris township line.

The question here is a very narrow one. Does the right to lay gas pipes in the streets, lanes, avenues, alleys and public grounds of Morristown and its vicinity authorize the defendant company to enter and lay gas pipes in the streets of an adjoining, independent municipality ? It seems to me that such a construction is doing violence to language. It cannot be that the legislative purpose was to confer upon the defendant company, under its right to lay gas pipes in streets and to supply gas to buildings in the vicinity of Morristown, the power to enter adjoining municipalities which had independent governments and of which Morristown was not then a part.

Vicinity, as us'ed in the statute, ajoplies only to the streets, avenues, lanes, alleys and public places adjoining the village of Morristown. It does not embrace other places and territory, constituting an independent municipal government, beyond and outside of the municipal corporation of which the unincorporated village of Morristown was a part in 1855. English’s law dictionary defines “vicinity” as “adjacent — that which is near.” Webster defines “vicinity” as (1) the quality or state of being near, or not remote; nearness; proximity; (2) that which is adjacent to anything; neighborhood. “Neighborhood” is defined as “dwelling near; a place near; adjoining district; the inhabitants who live in the vicinity of each other; as the fire alarmed all tire neighborhood.”

Chief-Justice Bronson, in Easterly v. Cole, 3 N. Y. 502, 505, says: “I understand 'neighborhood’ to mean the same town or place where the plaintiff carried on business, and not a different town or place.” In Coyle v. Chicago Railroad Co., 27 Mo. App. 584, the court adopts Webster’s definition.

The act' of incorporation of the defendant company is not difficult of construction. Its language construes itself. The company is incorporated to supply gas “for the purpose of lighting the streets, buildings, manufactories and other places situated in Morristown and its vicinity.” Every building or other place in Morristown may be lighted. Buildings in the vicinity of Morristown may also he lighted. The intent was to give the defendant the right to lay gas pipes and light Morristown and the buildings or factories lying in its vicinity— that is, adjoining Morristown.

If this construction is not put upon the act, where will you say “vicinity” extends ? If it takes in the independent municipality of Madison, why not Chatham and Summit? Is it not clear that the.legislature meant to confine the franchise of this Compaq to the place named in the act and its vicinity, as contradistinguished from other towns and places? It seems to me this is clear.

The decree belojv is reversed, with costs in this court, and an order should be entered in the court of chancery for an injunction according to the prayer of complainant's bill.

For reversal — Van Syckel, Fort, Hendrickson, Bogert, Vredenburgi-i, Voorhees, Vroom — 7.

For affirmance — Dixon, Garretson — 2.


author: Vroom, J.

text:
    Hester Wallace, appellant, v. William Wallace, respondent.
    [Filed March 2d, 1903.]
    Where the proofs in an action for divorce show that the residence of the complainant in this state was acquired with the animus manendi, corroborated by satisfactory evidence as to such intention on her part to reside permanently in the state, her avowal that her object in coming into the state was to obtain a divorce, while it is a pertinent fact to be considered in determining the bona, fules of li^r residence, is neither a controlling circumstance nor a bar to her right to obtain a divorce under our statute.
    Tbe appeal in this ease was from a decree advised by Vice-Chancellor Pitney, dismissing a bill for divorce. The opinion is reported in 17 Dick. Ch. Rep. 509.

    The reference in this cause had been made to Frederic Adams, Esq., one of the special masters in chancery, and depositions were taken before him. He made his report on the 28th day of August, 1901, and therein stated that he had reached the following conclusions on the law and on the facts:
    1. A person may legitimately move to another state in order to avail himself, or herself, of the laws of that state. This is a general rule, applicable to suitors in divorce cases, as well as to other persons. Consequently, an avowal that the object in moving to another jurisdiction was to get a divorce does not show illegality or even impropriety of motive, though it may well induce the court to require strict proof of residence in good faith. Streitwolf v. Streitwolf, 13 Dick. Ch. Rep. 563; Pohlman v. Pohlman, 15 Dick. Ch. Rep. 28. Chancellor Green, in Brown v. Brown, 1 McCart. 78, leaned to the opposite conclusion, but the decree in that case was reversed by the unanimous vote of the court of errors. The grounds of reversal do not appear, as the opinion prepared by Chief-Justice Whelpley was lost in the hands of the reporter. Brown v. Brown, 2 McCart. 499.

    2. Since mere residence, without an animus manendi, will not support a divorce suit, the existence of the animus manendi must be proved as fully as other material facts are required to be proved. The sworn statement of the complainant is not enough. It must be corroborated by facts preceding and attending the change of residence. Tracy v. Tracy, 17 Dick. Ch. Rep. 807.

    3. The facts elicited by the re-examination of the complainant and Mrs. Boulanger corroborate, beyond a reasonable doubt. the complainant’s declaration that her intention is to reside permanently in New Jersey. It is to be remembered that the complainant was married at seventeen, was a mother at eighteen, and was deserted by her husband and left to support herself and her child when only twenty-four. It was natural and almost inevitable that she should resume her place in the household of her mother, who is a woman of evident force and capacity; that she should rely on her mother’s aid and conform to her mother’s plans. It appears that Mrs. Boulanger, though she was born in New York City and has married two men who lived and did business in New York, is yet very much of a New Jersey woman. Her father, Charles Hertel, spent most of his life in Jersey City, where he carried on the trade of woodturner. Her three brothers — Joseph, William and Charles Hertel — were born and now reside in Jersey City, and have always lived and done business there. She has no relatives living in New York City. When her last husband, Cammille Boulanger, died, in September, 1896, she had to make a living for herself and to contribute, according to her ability, to the sup*port of her two children and granddaughter. After keeping boarders for not quite a year in New York City, she moved, in November, 189V, to Jersey City, where prices were lower than in New York City, and has lived there ever since, near to her three brothers, and both she and her daughter, who is a member of her household, do work on neckties for a New York business house. Her son, who is an actor, and who 'is on the road a'good deal, lives with her and votes in Jersey City. Mrs. Boulanger testifies that her brother, Joseph Hertel, who is a real estate man, advised her to move to Jersey City on the ground of economy. This was evidently good advice, and that she should take it was the obvious and judicious thing to do. She and her daughter both testify that they do not intend to leave Jersey City, but that they expect to remain there. I not ■only see nothing in the cause to discredit their testimony on this point, but am persuaded of its truth.

      Mr. Thomas S. Henry, for the appellant.
   The opinion of the court was delivered by

Vroom, J.

The report of the special master sets forth in a clear and concise manner all the essential features' of the testimony taken in this cause and necessary to its determination. Based upon this testimony, the finding' was that the complainant’s act in moving into this state for the purpose of getting a divorce did not show either illegality or impropriety of motive, and that at the time of exhibiting her bill she had an actual residence in this state to support a divorce, shown by her intention to reside here permanently, and proven, not only by her own testimony, but corroborated beyond a reasonable doubt.

A careful examination of the testimony has satisfied me that the conclusions reached by the master are correct.

Admittedly, the only question in the case is that of the actual residence or domicile of the complainant, and whether this residence was such as entitled her to maintain this suit for divorce. There is no dispute as to the fact that the residence of the defendant was in New York, and that no service of process was had upon him within the jurisdiction of New Jersey, he having been brought into court by service of notice as a non-resident defendant in New York, in accordance with the provisions of our statute and the practice of the court of chancery. In dismissing the complainant’s bill, the court below held that when a complainant in a divorce suit has been deserted in another state and has moved into New Jersey for the purpose of securing a divorce in such' state, she acquired no domicile such as to give to the courts of this state jurisdiction, where no.service of process is had on the defendant in New Jersey. ’ ' .

It-is not deemed essential, for the determination of this case, to enter upon either an extended consideration of the extraterritorial service of notice or of the power to grant a divorce based upon an extra-territorial service. 'That such decree may be made, and that it will have extra-territorial force, is settled in this court by the case of Felt v. Felt, 14 Dick. Ch. Rep. 606, and I agree with the -learned vice-chancellor that “it has been finally determined in the great majority of jurisdictions, including the supreme cofirt of the United States, as the final arbiter, that such a decree may be made which will have extraterritorial force.” Atherton v. Atherton, 181 U. S. 155. In this case, Mr. Justice G-ray presents a very careful exposition of the question and cites and comments at length upon the decisions of the courts of the different states.

In order, however, to render the divorce valid, either in the state in which it is granted or in another state, there must, unless the defendant appeared in the suit, have been such notice to him as the law of the first state required. Atherton v. Atherton, supra; Cheeley v. Clayton, 110 U. S. 701.

The statute of this state, in defining the causes for which divorces may be decreed by our courts, provides

“or when the complainant or defendant shall be a resident of this state at the time of filing the bill of complaint and the complainant or defendant shall have been a resident of this state for the term of two years, during which such desertion shall have continued.”

In the case of Tracy v. Tracy, in this court (17 Dick Ch. Rep. 810), the definition of residence is adopted as the place where a person’s habitation is fixed, without any intention of removing therefrom, and it was well said by the special master, in his finding in this case, that mere residence, without an animus manendi, will not support a divorce suit, and that the animus manendi must be proved as fully as other material facts are required to be proved.

But it was insisted by the learned vice-chancellor that in addition to the requirements of the statute as to residence, as above defined,' that the residence cannot be acquired with the desire or intention to procure a divorce. On page 519 (Wallace v. Wallace, supra), he says: “It has been my rule, and I believe that of the other members of the court, not to grant a decree for divorce • for desertion based upon a service out of the jurisdiction and a domicile not matrimonial, unless suc'li domicile has been acquired under circumstances showing sufficient and controlling reasons for its acquisition other than the desire to procure a divorce' — and certainly never when the avowed object was to obtain that relief.”

The practical effect of this doctrine is to prevent a citizen who removes into this state from another, even though such removal be made bona 'fide with animus manendi, from acquiring a residence here sufficient to sustain an action for divorce, unless some reason for acquiring such residence be shown other than the desire to procure a divorce; its legal effect is to substitute for the public policy established by the legislature a judicial policy of contrary import. I concur entirely in the principle laid down by the special master in this case that a person may legitimately move to another state in order to avail himself of the laws of that state, and this includes, necessarily, the right to remove into the jurisdiction of this state for the purpose of procuring a divorce, the only requirements being absolute good faith in the taking up of such residence and of the animus manendi; in other words, the factum of residence and the animus manendi proves the domicile. Magowan v. Magowan, 12 Dick. Ch. Rep. 324; Harral v. Harral, 12 Stew. Eq. 285.

It is true that Chancellor Green, in the case of Brown v. Brown, 1 McCart. 78, refused a divorce because “the actual residence in this state was adopted, under circumstances which warrant the conclusion that the change of residence was made for the purpose of - obtaining a divorce,” and yet the decree in that case was unanimously reversed in this court. The opinion of Chief-Justice Whelpley, in this court, was not filed nor reported, yet there appears no warrant for assuming that such reversal “may have been based upon a different view of the facts.” The opinion of Chancellor Zabriskie, in Coddington v. Coddington, 5 C. E. Gr. 263, states the grounds upon which Brown v. Brown was reversed in this court. He says (at p. 265) : “And it was well understood that the last case (Brown v. Brown) was reversed in the court of appeals on the ground that the chancellor held that, notwithstanding the act of 1857, a residence of five years during the desertion was still required; the complainant had resided in the state more than three years during the desertion; and also because the chancellor held that a residence resumed in this state, seemingly for the purpose of bringing a suit, although there was an actual change of residence, was not sufficient under the requirements of the act.”

This extract from the opinion in Coddington v. Coddington, it seems to me, leaves no doubt whatever as to the grounds of the reversal in this court of the decree in Brown v. Brown.

In the case of Tracy v. Tracy, 17 Dick. Ch. 807, this court held that “the fact that a person comes into a state for a specified purpose does not necessarily prevent him from procuring a residence, if at the time of coming he has no definite idea of removing from the state when that purpose is accomplished, or at some definite period.”

The case of McGean v. McGean, 18 Dick. Ch. Rep. 285, in this court, was not decided upon the question of the Iona fides of the residence of the petitioner in this state. The affirmance of the decree below was expressly put upon the ground that the petitioner had failed to establish the desertion of the defendant for the statutory period by that quantum of proof which the law requires.

I do not understand that the decision in Sweeney v. Sweeney, 17 Dick. Ch. Rep. 357, referred to in the opinion below, comes to the same conclusion as that Reached by the vice-chancellor in this case. The chancellor, in that case, says, in referring to the proofs, that “they would perhaps justify the conclusion that the alleged residence was acquired with the main and predominant intent to enable the petitioner to seek relief for the desertion she complained of,” but he continues: “Without reference to • that phase of the case, I feel bound to say that petitioner \ad not, at the acquisition of the alleged residence, the ani'i, 'is manendi in New Jersey which is essential to give jurisdicti i to this court, or at least to leave the matter in such seriou.; doubt that jurisdiction ought not to be assumed therein.” It was upon this ground, and the fact that the proofs failed to show a willful or obstinate desertion, that the decree was not granted.

The proofs in this case, showing that the residence of the complainant was acquired with the animus manendi, and that she is corroborated by satisfactory evidence as to her intention to remain permanently in New Jersey, the avowal on her part that her object in moving into the state was to obtain a divorce cannot affect the bona jides of her residence or her right to a divorce under the provisions of our statute.

The decree below should be reversed.

For reversal — The Ci-iiee-Justice, Van Syckel, Dixon, Garrison, Fort, Garretson, Hendrickson, Bogert, Vreden-BURGI-I, VOORIIEES, VROOM — 11.

For affirmance — None.


author: Garretson, J.

text:
    Gilbert Collins et al., executors, respondents, v. Mary B. Wardell et al., appellants.
    [Filed March 3d, 1903.]
    1. A testatrix' provided by her will as follows: “I direct my executors hereinafter named, out of the residue of my estate, to set apart a fund sufficient to produce an income of $6,000 a year and out of said income to pay to my brother William Phyfe $4,000 a year, and to my brother Duncan Phyfe $2,000 a year for the term of their lives, respectively, and after their death, I direct the capital of said fund to be divided equally among” six persons named. William Phyfe predeceased the testatrix. — Held, that immediately upon setting apart the fund sufficient to produce the income of $6,000, the executors should divide two-thirds of the capital fund so set apart among those entitled to it under the will.
    2. The words “after their death,” in the above clause of the will, construed to moan “after their respective deaths.”

      On appeal from a decree of the chancellor, whose opinion is reported in 18 Dick. Ch. Rep. 371.

    The bill in this case was filed by the executors and trustees of the will of Mary P. Wintringham, deceased, to obtain a construction of the fifteenth, sixteenth and seventeenth clauses of that will. These clauses are as follows:

      “Fifteenth. I direct my executors hereinafter named, out of the residue of my estate, -to set apart a fund sufficient to produce an income of $6,000 a year, and out of said income to pay to my brother William Phyfe $4,000 a year, and to my brother Duncan Phyfe $2,000 a year, for the terms of their natural lives, respectively, and after their death, I direct the capital of said fund to be divided equally among the said Mary Wardell, Maria Wintringham, Thomas Wintringham, Joseph Wintringham, William Wintringham and Henry C. Wintringham.

      “Sixteenth. It is my will that if any or either of the above-named legatees or devisees shall die before my death, the bequest or devise to the person dying shall lapse.

      “Seventeenth. All the rest, residue and remainder of my estate, real or personal, of or to which I shall die seized, possessed, or in any way entitled, I do give, devise and bequeath to the said Emma P. Purdy, Mary Wardell, Emily Haight, Henry C. Wintringham, William Wintringham and to Eranca Wintringham, the grand-niece of my late husband, and the two children now living of the said Thomas Wintringham, to be divided equally among said persons, share and share alike, and I direct that any inheritance tax to be levied or charged against my estate be paid out of that portion thereof bequeathed in this paragraph.”
    William Phyfe, the brother of the testatrix, to whom an annuity of $4,000 was bequeathed by the fifteenth clause of the will, predeceased the testatrix.
    Thomas Wintringham, one of the persons mentioned in the fifteenth clause of the will among whom the capital fund was to be distributed, also predeceased the testatrix. All the other persons named in the fifteenth and seventeenth clauses of the will are still living, some of those mentioned in the seventeenth clause being infants. The executors have now in hand a clear residue of personalty, amounting to $188,129.84.
    The bill asks the chancellor to construe the will and direct and advise the complainants how much to set apart as trust fund, provided by the fifteenth paragraph thereof, and how much to reserve for immediate distribution thereunder as security for the annuity to the said Duncan Phyfe, and how, when and to whom to distribute such trust fund.
    The decree orders that the will be construed to the effect that notwithstanding the death of William Phyfe and Thomas Wintringham before tire death of the testatrix, a fund sufficient to produce an income of $6,000 a year must be set apart under the fifteenth paragraph of said will, and that upon tire death of Duncan Phjffe, named in said paragraph, and not until then, the capital of five-sixths of said fund will be payable to the legatees in remainder named in said paragraphs who survived the testatrix, and that the one-sixth of the said fund which, but for his death before the death of said testatrix, would have been payable to Thomas Wintringham, and all of the income of said fund until the death of the said Duncan Phyfe, except the annuity of said Duncan Phyfe, must be disposed 'of under the seventeenth paragraph of said will. The decree further-orders that the fund set apart shall be not less than $150,000, and that said complainants have leave to apply to the chancellor, on the foot of the decree, for an order of reference to a master to ascertain and report how much larger, if any, such sum shall be, and which securities now in the hands of the executors shall constitute said fund and what valuation shall be set therein for that purpose. Mary B. Wardell, Maria L. Wintringham and Joseph P. Wintringham appeal from so much of the decree as orders that not until the death of Duncan Phyfe, named in the fifteenth paragraph of the will of the testatrix, will airy part of the capital fund to be set apart under said paragraph be payable to legatees in remainder thereunder, and that the one-sixth of said fund which, but for his death before the death of the said testatrix, would have been payable to-Thomas Wintringham, and all of the income of said fund until the death of said Duncan Phyfe, except the annuity of said Duncan Phyfe, must be disposed of under the seventeenth paragraph of said will.

      Mr. Charles L. Corbin and Mr. R. Burnham Moffat (of the New York bar), for the appellants.

      Mr. William Brinkerhoff, for the respondent Emma P. Purdy.

      Mr. Chauncey G. Parker, for the respondents Prances Wintringham, Henry B. Wintringham and Georgia Wintringham.
   The opinion of the court was delivered by

Garretson, J.

We agree with the conclusion of the learned chancellor, that the complainants were entitled to the aid, advice and direction of the court; that the death of William Phyfe before the testatrix did not operate to defeat the gift of the fund to the persons to whom she bequeathed it by the fifteenth paragraph of the will; that the executors• are bound to set apart so much of the residue in their hands as1 will be reasonably sufficient, when properly invested, to furnish an income of at least $6,000 a year; that a sum of not less than $160,000 is such a sum; that the share of Thomas Wintringham, who predeceased the testatrix, given under the fifteenth paragraph of the will, by the provision of the sixteenth paragraph lapsed and fell into the residue, to be disposed of by the seventeenth paragraph.

We have reached a different conclusion, however, as to the time when the capital fund set apart by the executors to produce an income of $6,000 a year, in accordance with the directions of the fifteenth clause of the will, shall be distributed. We think that distribution of two-thirds of that capital fund should be made as soon as it is set apart by the executors. William Phyfe, to whom two-thirds of the income of $6,000 a year was by the will to go; having predeceased the testatrix, and the interest of those in this fund who survived her having become vested by her death, no reason exists, unless it so appears from the will itself, why any more of the fund than is sufficient to raise the annuity of $2,000 for Duncan Phyfe should be retained by the executors. We are not able to find in the will the intention of the testatrix that the entire fund should be held by the executors until the death of Duncan Phyfe.

The language used by the testatrix indicates an intention to have the capital fund distributed at such times as the necessity for holding it b> accomplish the purpose of the testatrix, namely, to produce $4,000 a 3rear for one brother for his life and $2,000 a year for the other brother for life, ceased.

The will did not merely provide incomes for the brothers, but also fixed a certain sum for distribution among others therein named, else it might be said that 'there was no necessity for the executors to set apart more than enough to produce $2,000 a year; but the testatrix wanted to give to those in that paragraph mentioned a certain sum absolutely, which she determined should be the principal sum producing $6,000 a 3fear.

The testatrix made no disposition of any accumulation of income beyond that necessary to pay the annuities, respectively; such accumulation would arise because of the death of any annuitant before the other, unless the capital sum necessary to raise the annuity of the one who died first were distributed upon his death, and this circumstance bears upon the intention of the testatrix.

The direction of the testatrix,

“and out of said income to pay to my brother William Phyfe $4,000 a year, and to my brother Duncan Phyfe $2,000 a year for the terms of their natural lives, respectively, and after thew death I direct the capital of said fund to be divided equally,” &c.,

means that the capital fund is to be divided upon the respective deaths of the annuitants, the income having been paid to them for their respective lives. The words “their death,” in the connection used, can mean only ,£theif jeesp,ec£iv£¿ deaths.” These words were not expressive of a single event, but of the death of each one; that is, their respective deaths.

The cases seem to support the contention that where the income of a single fund is bequeathed to two or more persons for life, with remainder over “after their death,” the courts construe these words to mean “after their respective deaths,” and decree a present division of the fund and a distribution of the part thereof not required to produce income for the life-tenants.

In Woolston v. Beck, 7 Stew. Eq. 74, a testator gave the use of a farm to his two daughters, S. and K., for life, S. to have two-thirds of the income and K. one-third. “And after the decease of my two daughters,” to their children in fee, in specific portions. S. died, leaving children. Held, that on her death the person to whom the remainder was given became entitled to the possession of the other two-thirds. The chancellor held that the words “after the death of my two daughters” will be construed to mean after the death of the two, respectively. In Stoutenburgh v. Moore, 10 Stew. Eq. 63, the will provided:

“All the rest and residue of my estate, real and personal, I give, devise and bequeath the income to my two sons, Kobert and Edward, to be equally divided between them during their lives, and at their death to be equally divided between my grandchildren, to them, their heirs and assigns.”

It was held that upon the death of Edward his child was entitled to a moiety of the estate absolutely, the chancellor saying: “He certainly intended that at the respective deaths of his sons the shares of-the residue, of which he gave them, respectively, the income, should go over; for he directs that 'at their deaths’ — by which he meant their respective deaths— the residue shall be divided between his grandchildren.” Budd v. Haines, 7 Dick. Ch. Rep. 488; Pennington v. Rutherford, 11 C. E. Gr. 313; Jackson v. Luguere, 5 Conn. 221.

The decree will be reversed.

For reversal-The Chief-Justice, Van Syckel, Fort, Garretson, Pitney, Vredenburgh, Voorhees, Vroom-8

For affirmance — None.


author: GUMMERE, CHIEF-JUSTICE.

text:
    Richard Siegman, appellant, v. Martin Maloney, et al., respondents.
    [Filed March 11th, 1903.]
    The right of a stockholder to prosecute a suit on behalf of the corporation can only be maintained by showing a refusal, either actual or presumptive, by the board of directors to do so; and, where there has been no actual refusal, the burden is on the stockholder who brings the suit to show the existence of such a state of facts as justifies the conclusion that an application to the board to prosecute would be futile.
    On appeal from a decree in chancery, advised by Vice-Chancellor Pitney, whose opinion is reported in 18 Dick. Ch. Rep. 422, sustaining a demurrer to the bill of complaint, and dismissing the bill.

      Mr. James F. Howell, for the appellant.

      Mr. Richard V. Lindabury and Mr. Charles L. Corbin; and Mr. William Page and Mr. Francis H. Kinnicult (of the New York .bar), for the respondents.
   The opinion of the court was delivered by

GUMMERE, CHIEF-JUSTICE.

The bill of complaint in this case was filed by a stockholder of the Electric Vehicle Companjr in 'behalf of himself and of all other stockholders who might apply to' be admitted as parties to the suit against the company and certain individuals, who were its directors during the years 1899 and 1900, to compel the individual defendants to pajr back into the treasury of the corporation certain dividends illegally declared and paid by them during the period mentioned. It appears from an examination of the allegations of the bill that only five of the twelve directors in office at the time of the institution of the suit were upon the board at the time when the illegal dividends were declared and paid; and it is admitted in the bill that, notwithstanding this fact, the complainant did not apply to the board to bring suit for the purpose of obtaining the relief sought by the bill before beginning this -action. He alleges, in excuse of his failure in this regard, that, in addition to the five members who participated in the declaration and payment of the illegal dividends, one other was a brother of, and connected in business with, one of the individual defendants; and that still another is “an employe and representative of one of the other individual defendants;” and insists that for this reason •he was justified in assuming that an application to the board to bring this suit would have been refused.

The right of a stockholder to prosecute a suit on behalf of the corporation can only be maintained by showing a refusal, either actual or presumptive, by the board of directors to do so. Willoughby v. Chicago Junction Railway Co., 5 Dick. Ch. Rep. 667. And where there has been no actual refusal, the burden is on the stockholder who brings the suit to show the existence of such a state of facts as justifies the conclusion that an application to the board to prosecute would be futile. Brewer v. Boston Theatre Co., 104 Mass. 387. The fact that a majority of the board of directors in office at the time of filing this bill had no part in the declaring or payment of the illegal dividends, is sufficient to defeat the complainant’s right to sue, unless the facts set out in the bill, with relation to two of that majority, afford sufficient grounds for concluding that one or the other of those two would, in willful disregard of the interests of the corporation, vote with the directors against whom relief is sought, and, by doing so, defeat an application to the board of directors to prosecute. But, in our judgment, these facts justify no such conclusion. On the contrary, the presumption is that, notwithstanding the relations existing between the two directors and two of the individual defendants, against whom relief is sought, the former would faithfully discharge the duty which they owed to the- corporation, and its stockholders, although their action would necessarily have an injurious effect upon the interests of those defendants. Neither the existence of blood nor of business relationship justifies a presumption of dishonesty under the conditions referred to.

The complainant having failed to show in his bill any necessity for prosecuting this action in his own name, and this having been specified as a ground of demurrer, the decree appealed from should be affirmed.

For affirmance — Ti-ie Chief-Justice, Van Syokel, Dixon, Garrison, Fort, Garretson, Hendrickson, Vredenburgh, VOORHEES, VROOM — 10.

For reversal — None.


text:
    Richard Siegman, appellant, v. George H. Day et al., respondents.
    [Filed March 11th, 1903.]
    On appeal from a decree in chancery sustaining a demurrer to a bill of complaint and dismissing the bill. See 18 Dick. Ch. Rep. 422.

   Per Curiam.

The facts set out in the bill of complaint in this cause are, in their legal effect, identical with those exhibited in the bill in the ease of Siegman v. Maloney, decided at the present term of this court. For the reasons stated in the opinion filed in that case, the decree brought up ,by this appeal should be affirmed. '

For affirmance — The Chief-Justice, Van Syckel, Dixon, Garrison, Fort, Garretson, Hendrickson, Yredenburgi-i, Yoorhees, Yroom — 10.

For reversal — None.