author: Stevehs, V. C.

text:
    Blanche Chetwood et al. v. Bradbury C. Chetwood et al.
    [Filed August 16th. 1911.]
    By will the testator gave his wife the income of all his estate until his youngest child should reach twenty-one. and then gave her the income of one-third of it. Subject to her life, estate, he. gave all the residue of his estate to his children and tiheir heirs and then provided as follows : “In the event of my wife remaining unmarried at the time of my youngest child shall arrive at the age of twenty-one years. I give, devise and bequeath to her the use, income and profit of the equal one-third part of all my estate, both real and personal (after deducting the disbursements above mentioned), for and during the period of her natural life and all the rest and residue of my estate, both real and personal. I give, devise and bequeath to my children share and share alike and to their heirs forever. In the event of the death of all my children without lawful issue of either of them surviving them and without any child of such issue surviving them, I give, devise and bequeath all my estate, both real and personal, whatever and wherever the same may be (subject to the' right to my wife in the same during her life) to my nephews [naming them) and to my niece [naming her] to be equally divided between them and to their heirs forever.” Tlhe testator left' a widow and two children at his death, a son and a daughter the latter of whom attained the age of twenty-one years and died unmarried. — Seld, that subject to the widow’s life interest, the son is seized of an estate in fee-simple to certain lands whereof the testator died seized subject to the executory devises in favor of certain of the testator’s nephews and niece.

      Mr. Qortlwnctt Parker and Mr. Richard Wayne Parker, for the complainants.

      Mr. Bradbury O. Chetwood, for the defendants.
   Stevehs, V. C.

This is a bill to quiet title. The title depends upon the construction of the will of the late Dr. George E. Chetwood. The question is whether the complainant, his son George, is thereunder seized of an indefeasible estate in fee-simple to a lot of land in Elizabeth subject to testator’s widow’s right to the use, income and profit of one-tin rd of it during her- life or whether such fee is not subject to executory devises in favor of certain of testator’s nephews and nieces.

The will first devises, in terms that are absolute, the use, income and profits of' all his estate, both real and personal, for and during the period of his wife’s natural life, or as long as she remains -his widow, fox her maintenance and support and fox the education, maintenance and support of his children. Subject to this life estate lie gives to his children the fee in terms following:

“All the rest and residue of my estate, both real and personal, I give, devise and bequeath to my children share and share alike and to their heirs forever.” He then provides as follows:

“In the event of my wife remaining unmarried at the time my youngest child shall arrive at the age of twenty-one years, I give, devise and bequeath to her the use, income and profit of the equal one-third part of all my estate, both real and personal (after deducting the disbursements above mentioned), for and during the period of iher natural life and all the rest and residue of my estate, both real and personal, I give, devise and bequeath to my children share and share alike and to their heirs forever.”
“In the event of the death of all my children without lawful issue of either of them surviving them and without any child of such issue surviving them, I give, devise and bequeath all my estate, both real and personal, whatever and wherever the same may be (subject to the right of my wife in the same during her life) to my nephews [naming them] and to my niece [naming her] to be equally divided between them and to their heirs forever.”

The testator left two children at his death, the complainant and Blanche, who attained the age of twenty-one and died unmarried. The widow still survives..

I have so recently examined the law on this subject in Rogers v. Baily, 76 N. J. Eq. (6 Buch.) 29 (affirmed June 7th, 1911), that it is unnecessary to enter into any discussion of it. The rules governing cases of this kind have been authoritatively stated by Chief-Justice Gfummere in Patterson v. Madden, 54 N. J. Eq. (9 Dick.) 714, and all I have to do is to apply them. He says: “By the decision in Pennington v. Van Houten, as I understand it, two rules are established in the construction of wills containing a limitation over by way of executory devise, after the death of the original devisee without issue.

“First. If the land be devised to A in. fee and a subsequent clause in the will limits such land over to designated persons in case A dies without issue, and A so dies and the substituted devisees are m esse at his death, and there is no other event expressed in the will to which the limitation over can fairly bie referred, then A takes a vested fee, which becomes divested at his death and vests in those to whom the estate is limited over.

“Second. When there is an event indicated in the will, other than the death of the devisee, to which the limitation over is referable (for instance, the distribution of the testator’s estate or the postponement of the enjoyment of the property devised until the devisee reaches the age of twenty-one, or until the exhaustion of a prior life estate), such limitation over will be construed to refer to the happening of such event or to the death of the devisee, according as the court may determine from the context of the will and the other provisions thereof that the limitation clause is set in opposition to the event specified or is connected with the devise itself.”

There are three events mentioned in this will — first, the attainment of twenty-one years by the youngest child; second, the death of the widow; third, the death of both children, neither leaving children or grandchildren. Complainant’s contention is that the limitation clause'above recited is set in opposition to the attainment by the children of the age of twenty-one, and that as this event'has happened the fee vested in him is now indefeasible.'

It appears to me very clear that the limitation is not set in opposition to' the attainment by the children of the age mentioned.

The complainant wishes to read this contingency into the limitation clause.' Inserting it, the clause would stand, as follows:

“In the event of the death of all my children before they or any of them shall arrive at the age of twenty-one years and without lawful issue of either of them then surviving them and without any child of such issue surviving them then I give”

all my estate to H. C., &c. It is quite possible for a child to have children before twenty-one, but impossible to have grandchildren. There can be no question but that by “issue” the testator meant children of his children, that by “them” (three times repeated) he meant his own children. By the interpolation we are forced to impute to him the absurd idea that he contemplated the possibility of a child dying under twenty-one leaving grandchildren. It is suggested in the brief that George, who was eighteen years older than Blanche, might have had grandchildren, before Blanche, or some other child born subsequently, might have reached twenty-one. This would be what Chancellor Green, in Pennington v. Van Houten, called “a remote possibility, which, in the ordinary course of nature, was not likely to occur.” But it does not meet the difficulty, for the testator here contemplates, not only that George might have grandchildren and die, but that his other children might have. It seems plain that in order to give the clause its proper effect, the event, upon the occurrence of which the contingency is to happen, must be sufficiently postponed to allow the possibility of all the testator’s children having grandchildren before it occurs. This event must be either the testator’s widow’s death or the death of the last survivor of the children. Whether it is the one or the other, the bill must be dismissed.

The general scheme of the will is this: Testator says, I .give my wife the income of all my estate until my youngest child shall reach twenty-one — then I give her the income of one-third of it. Subject to her life interest, I give all the rest'and residue of my estate to my children and their heirs. If all my children die without leaving lawful issue of either of them surviving them or any child of such issue surviving them, I give my estate (subject to my wife’s third, if she be alive) over.

The collocation of the words themselves indicates that the limitation over is immediately connected with the devises and that it is set-in opposition to them. This indication is somewhat fortified by the provision giving the widow a life -right and further strengthened by the reference to a class unborn, which could not all come into esse until after the children had attained the age of twenty-one years.

TC the testator had. given all his estate to his children at twenty-one, and if he had not mentioned children of issue, the case would have resembled Post v. Van Houten. But he continued his widow in the possession of a third of it during her life. It cannot, therefore, be said that the limitation over is set in opposition only to his children coming into possession of all.

As the bill will have to be dismissed either on the assumption that the contingency must take place on the widow’s death or on the death of the last survivor of the children, and as the persons in esse to claim at those two. periods may be different, it seems unadvisable to express any opinion as to which of the two contingencies is intended.


source: Caselaw Access Project

author: Stevejísost, V. C.

license: Public Domain

text:
    Clarence E. Vrooman, substituted trustee of John R. Elton, deceased, v. Laura E. Virgil et al.
    [Decided April 21st, 1913.]
    1. A .testator by his will provided as follows:

      “Second. I' give, devise and bequeath to my niece Lizzie E. Whitan the use of two thousand dollars during her natural life said money to be kept safely invested for her use and the interest semi-annually to be paid her by my executors hereafter named and at her decease the said sum to be paid to her children. But should there be no child or children her surviving then the said sum is to revert, to and become a part of the body of my original estate.

      “Third. 1 desire invested for the use and support of my wife, Mary P. Elton, and daughter, Laura E. Virgil, all the rest and residue of my estate of whatever kind or nature whether real or personal. But should the said use not be sufficient for their comfortable maintenance and support they are hereby and herein authorized to use so much of said personal estate as may be necessary therefor or sell and give good conveyances in the law for any of my real estate and appropriate the proceeds thereof to such maintenances use and support.

      “Fourth. At the death of my wife I give devise and bequeath the use of all my estate remaining to my daughter, Laura E. Virgil, during her natural life at her death to be paid to her child or.children but in case she leave no child or children her surviving then said sum is to revert to and become a part of the body of my original estate.

      “Fifth. If my daughter Laura E. Virgil leave no child at her death I will devise and bequeath one thousand dollars to the American Tract Society five hundred to the home missionary Society five hundred to the foreign missionary society and the remainder to be divided equally between my nephews and nieces.

      “Sixth. I hereby nominate constitute and appoint Daniel L. Pierce Daniel L. Freeman of Canaan, Ct. the executors of this my last will and testament and authorize them to appoint two trustees at any time they may think best to take charge of the property or if either one should die the one living is authorized to make the appointment as he thinks best.” — ■■ Held (1), that thereby the entire estate of the testator, both real and personal, was placed in trust, and it is of little importance whether the fee of the real estate is technically vested in the executors or trustees or passed to the testator’s heirs subject to be divested and transferred to purchasers by the exercise of a power of sale-which the trustees undoubtedly hold; (2) that it was the testator’s intention to direct the method in which the trustees are to dispose of the income during the lifetime of the testator’s niece, widow and daughter, and then distribute the principal among a considerable class of beneficiaries and also to hare the trustees exercise the power to sell the testator’s real estate for the purpose of keeping the estate properly invested and for the purpose of making distribution of the principal at the end of the trust; (3) that nothing contained in the third paragraph can be interpreted as empowering the widow and daughter who are receiving an income from the trust estate to exercise any power of sale of real estate in their own names and on their own behalf, the phrase “they are hereby authorized to use so much of said personal estate” plainly meaning that they are authorized to draw' upon the trustees for portions of the trust estate in the possession of the trustees, and the further provision immediately following authorizing the wife and daughter “to sell and give good' conveyances” of any of the testator’s real estate and appropriate the proceeds in like manner, meaning that they are authorized to require the trustees in case the contemplated necessity arises to make sale of real estate; (4) that the express direction that in case of a certain contingency arising tihe beneficiaries, w'ho receive the income for their support, shall have a right to have the real estate sold, does not impliedly limit the power which the trustees must exercise at all times to keep the estate, consisting largely of land, invested so as to yield an income; (5) that the testator for the purposes of investment and reinvestment of his estate and the providing of an income for the support of his widow and daughter, and for the purpose of distribution possibly among a large class of individuals, places the whole time and manner of selling his estate absolutely within the control of the trustees.
    2. The power contained in the third paragraph of the will to supply any deficiency of income to providing comfortable maintenance for the support of the widow and daughter from the principal of the estate, does not. extend to the support of the daughter after the decease of the widow.

      Ex parte suit by trustee under a will for construction and ■ instruction. Heard on bill and depositions.

      Mr. Benjamin Stevens, for the complainant.
   Stevejísost, V. C.

The case presents for construction the following clauses from the will of John R. Elton, deceased, which will was executed September 25th, 1888, and admitted to probate in Cumberland county, New Jersey, March 13th, 1901:

“Second. I give devise and bequeath to my niece Lizzie E. Wliitan the use of two thousand dollars during her natural life said money to be kept safely invested for her use and the interest semi-annually to be paid her by my executors hereafter named and at her decease the said sum u> be paid to her children. But should there be no child or children her surviving then the said sum is to revert, to and become a part of the body of my original estate.
“TJm-d. I desire invested for the use and support of my wife, Mary P. Elton, and daughter, Laura E. Virgil, all the rest and residue of my estate of whatever kind or nature whether real or personal. But should the said use not be sufficient for their comfortable maintenance and support they are hereby and herein authorized to use so much of said personal estate as may be necessary therefor or to sell and give good conveyances in the law for any of my real estate and- appropriate the proceeds thereof to such maintenances use and support.
“Fourth. At the death of my wife I give devise and bequeath the use of all my estate remaining to my daughter, Laura E. Virgil, during her natural life at her death to be paid to her child or children but in case she leave no child or children her surviving then said sum is to revert to and become a part of the body of my original estate.
“Fifth. If my daughter Laura E. Virgil leave no child at her death I will devise and bequeath one thousand dollars to the American Tract Society five hundred to the home missionary Society five hundred to the foreign missionary society and the remainder to be divided equally between my nephews and nieces.
“Sixth. I hereby nominate constitute and appoint Daniel L. Pierce Daniel L. Ereeman of Canaan, Ct. the executors of this my last will and testament and authorize them to appoint two trustees at any time they may think best to take charge of the property or if either one should die the one living is authorized to make' the appointment as he thinks best.”

The testator’s wife, Mary P. Elton, above referred to, predeceased him. His daughter, the above-named Laura E. Virgil, his sole heir-at-law, one of the defendants in this suit, is now sixtj'-nine years of age and has no child. Mrs. Virgil had a child who died at some time, not stated, either before or after the testator made his will, in which he provided for the contingency of his daughter’s leaving no child at her death. ' 1

’ The average gross income of the entire estate for several years had been $2,265. One thousand nine hundred and fifty-five dollars of this income is derived from personal estate, and one farm situated in the west which produces $262. Some of the real estate is unproductive and is a burden. The exact net income is not stated, but it may be presumed to he somewhere in the neighborhood of $2,000. The exact circumstances under which Mrs. Virgil is living are not set forth, hut .it seems that her expenses, owing to illness, &c., during the year preceding the filing of the bill, were over $2,700, which the bill alleges made a “deficit of about $400 between her income and the expenses.” It would seem therefore that the net income available for Mrs. Virgil’s support -is at least about $2,000. It is not necessary to fix more accurately the net income which Mrs. Virgil receives.

There seem to be two questions which the complainant as trustee is entitled to have answered by this court for Ms guidance, in respect of things to he done or to be left undone at the present time.

1. The proceedings which have been so far taken in the execution of the foregoing will, including. the appointment of the complainant as “trastee in the place of Daniel L. Ereeman to execute” the trust created by the paragraphs above quoted' from the will of John R. Elton, deceased, have assumed correctly, in my judgment, that the language of the will when properly interpreted creates a trust, the extent of which is not distinctly defined in any one part of the will. My conclusion is that if this will is taken as a whole, the entire estate of the testator, both real and personal, was placed in trust, and it is of little importance whether the fee of the real estate is technically vested in the executors or trustees or passed to the testator’s heirs subject to be divested and transferred to purchasers by the exercise of a power of sale which (he trustees undoubtedly hold. I do not consider it necessary to elaborate any theory on this subject which I may hold because the result is- precisely the same whichever of the two theories may be.adopted.

The will is evidently the work of an unskillful draftsman, who was technically not well qualified to perform such a task, but I think that the intention to put the whole estate in trust, direct the method in which The trustees are to dispose of the income during the lifetime of the testator’s Mece, widow and daughter, and then distribute the principal among a considerable class of beneficiaries, is plainly declared. The intention also, I think, is manifest to have the trustee exercise the power to sell the real estate of the testator for the purposes of keeping the estate properly invested and for the purpose of making distribution of the ■ principal at the end of the trust.

At the start, $2,000 is expressly given to the executors in trust to keep the same safely invested and pay the interest thereon semi-annually to a niece of the testator. ISText, we have the express provision that “all the rest and residue” of the testator’s estate “of whatever kind or nature, whether real or personal,” be invested for the use and support of the testator’s wife and daughter. The provision in connection with this direction that in case tire “said use,” i. e., the income, he not sufficient for the comfortable maintenance and support of these beneficiaries

“they are hereby and herein authorized to use so much of said personal estate as may be necessary therefor, or to sell and give good conveyances in the law for any of my real estate and appropriate the proceeds thereof to such maintenance, use and support”

when read in connection with the entire will, in my judgment, cannot be interpreted as empowering this widow and daughter who are receiving an income from the trust estate to exercise any power of sale of real estate in their own names and on their own behalf. The phrase “they are hereby authorized to use so much of said personal estate as may be necessary,” plainly means that they are authorized to draw upon the trustee for portions of the personal estate in the possession of the trustees. The further provision which immediately follows authorizing the wife and daughter “to sell and give good conveyances” of any of the testator’s real -estate and appropriate, the proceeds in like manner, must he construed to mean that they are authorized to require the trustees in case the contemplated necessity arises to make sale of real estate. The third paragraph, which contains the provisions which we are now considering, starts out by directing that the entire residue of the testator’s estate, both real and personal, be “invested” for the purpose of yielding an income for the support of these beneficiaries. Manifestly, the trustees must control the real estate, collecting the income thereof, and whenever proper occasion arises, selling the real estate in order -to keep the entire estate properly invested.

The express direction that in case of a certain contingency arising the beneficiaries who receive the income for their support shall have a right to have the real estate sold, does not impliedly in my opinion limit the power which the trustees must exercise at all times if they are to keep an estate consisting largely of land invested so as to yield an income. The testator evidently was laying down a peremptory rule that the entire principal of his estate, both real and personal, should be charged with the comfortable support of his wife and daughter, and that such support should be provided even to the exhaustion of the entire estate. The trustees would not be allowed after the personal estate had all been used for the support of these beneficiaries to answer their call for further support by saying that they had no money left, and that the small income from unprofitable lands was all that they could thereafter pay over. The widow and daughter in the contingency stated have the absolute right to compel the sale of the real estate, without the slightest regard to tha ordinary action of the trustees in selling the same for purposes of investment. The express grant of this right in the beneficiaries to compel the exercise of the power of sale in a certain contingency, in my judgment, does not impliedly exclude the wider exercise of that power for other purposes which I find in this will when taken as a whole and read from the four corners.

That the testator contemplated that his entire estate, both real and personal, should be managed by trustees, is plainly expressed in the sixth paragraph in which the executors are expressly authorized to appoint trustees “to take charge of the property.”

All the provisions of this will show plainly that the testator is dealing with an invested estate, the income of which, or, to use his word, “the use,” of which is given to his niece, his widow and his daughter during their lives. There is nothing to suggest that the testator intended that any of this property, real or personal, should be subject to the control of these beneficiaries, after we have adopted the view above expressed of the actual meaning of the testator in providing in-the third paragraph for the application, in case of necessity, of the principal of his estate, both real and personal, to the support of his widow and daughter.

Th.e fourth paragraph expressly gives the use, i. e., the income of the entire estate after the death of the widow, to the daughter during her natural life, and directs that at her death the principal shall be paid to her child or children. It is plain that the testator contemplated that the principal would be vested in a trustee who would, in execution of the trust, pay this-principal. No words are used to indicate that the testator had in. mind that the estate would be vested in the daughter, and then pass upon her death to any issue which she might leave. But the paragraph proceeds without a pause to provide in case the daughter should leave no issue her surviving, then “said sum,” i. e., the entire principal of the estate “is to revert to and become a part of the body” of the testator’s “original estate.” It may be noted that the testator by using the word “sum” seems to consider it highly probable, if not practically certain, that when his daughter died the entire estate would consist of property which could aptly be styled “a sum.”

The fifth paragraph seems to make it plain beyond all question that the trustees were to sell the real estate for the purpose of making a distribution of the principal after the death of the life tenants. This paragraph expressly provides that upon the death of the daughter without issue, $1,000 is to go to the American Tract Societjr, $500 to the Home Missionary Society, $500 to the Foreign Missionary Society, and the remainder is to be “divided equally between my nephews and nieces.” While the proofs do ■ not show how many nephews and nieces the testator left, the bill sets forth the names of thirteen nephews and nieces residing in different states and nations, to wit, Canada, Utah, California, Florida, Nebraska and Connecticut, and these nephews and nieces are all made defendants. As this case is presented to the court I think for the purpose of construing this will, we may consider that the testator contemplated a distribution among a large number of persons and corporations residing or located in widely separated places. A conversion of the estate into money for the purposes of distribution seems to have been necessarily contemplated and intended and directed in this will. While the exercise of a power to sell real estate for the purposes of distribution does not necessarily involve the exercise -of such power for the purpose of investment before the time of distribution arrives, in this case there is nothing to limit the time when this power is to be exercised. The testator for the purposes of the investment and reinvestment of his estate, and the providing of an income for the support of his widow and daughter, and for the purpose of a final distribution possibly among a large class of individuals, in my judgment, places the whole matter of the time and manner of selling his real estate absolutely within, the control of the trustees.

2. The next 'question to be answered is whether the power contained in the third paragraph of the will to supply any deficiency of income to .provide comfortable maintenance and support for the widow and daughter from the principal of the estate, extends to the support of the daughter after the decease of the widow.

I am unable to perceive any warrant for such an appropriation of the principal, or any part thereof. The will, it seems to me, is reasonably plain on this subject. I do not find any inconsistency such as is referred to in the brief on behalf of complainants.

In the third paragraph the testator is dealing with a situation radically different from that which he deals with-in the fourth paragraph. He is contemplating his decease, leaving his wife and his only child, his daughter, Mrs. Virgil, surviving, and calling for care and support. Whether Mrs. Virgil’s child was then living we are not informed, but in. any case there was a family to be provided for with the widow at the head. The residue of the testator’s estate, both real and personal, which constituted the greater part of such estate, was devoted to the support of this family which the testator contemplated leaving. With an income probably not exceeding $.9,500 in view, the testator makes provision for the maintenance of his family, if necessary, out of the principal.

In the fourth paragraph the testator deals separately with an entire change of situation which he contemplated as highly probable, viz., the death of his widow in the lifetime of his daughter. The income of his estate, which he might contemplate as liable to prove insufficient for the support of his widow and daughter, he may ver-y well have deemed amply sufficient under all contingencies- for the support of his daughter alone, or his daughter and her child, if, when the will was made, such child was living. At any rate, the testator makes an. independent, distinct appropriation of the “use,” i. e.. the income of all his estate, “remaining” to his daughter “during her natural life,” and directs that at her cteath the estate “be paid to her child or children,” and he adds, “But in case she leave no child or children her surviving, then said sum is to revert to and become a part of the body of my -original estate.” It is the estate • remaining upon the death of the wife, the use of which is given to the daughter. The word “remaining” suggests that the testator had in mind the possible, perhaps probable, depletion of the corpus of the estate under the provisions of paragraph third in order to secure the comfortable maintenance of'his widow and daughter during their joint lives. There is no such phrase employed by the testator in the fourth paragraph where he disposes of the corpus of the estate after the death of his daughter. This fourth paragraph expressly directs that the estate remaining upon the death of the widow shall be paid at the daughter’s death to her child if she have one, and if she leave no child, then “said sum,” i. e.j the sum remaining upon the death of the widow, is to “become a-part of the body” of the testator’s “original estate.” Ho depletion of the corpus of the estate for the support of the daughter after the widow’s death is iecognized by this will as possible, and the carrying out of the express provisions of the fourth paragraph prevents any extension of the operation of the third paragraph after the widow’s death by implication. The absence of an express provision for the application of the principal to the support of the daughter after the widow’s. death is significant. In the third paragraph the “use,” i. e., the income of the estate is primarily devoted to the comfortable support of the widow and daughter, and recognizing that the income might be insufficient to secure such support, the testator expressly authorizes resort in-such case to the principal. In the fourth paragraph there is no express provision for the support of the daughter; she merely takes the “use,” i. e., the income, as a life tenant, and there is no suggestion in this paragraph that she is to get any support; comfortable or otherwise, in any case out of the principal. Of course, the testator knew that he was providing in the fourth paragraph for the daughter’s support, but there is nothing in the will to indicate that he had any doubt that the income which he thought might be insufficient for tire comfortable support of his widow and daughter would, under all conditions for which he saw fit-to provide, be ample to provide such support for the daughter alone. The sole basis for any right of the daughter after the widow’s death to be supported in any ease out of the principal, must be found in the third paragraph, and, after according to that paragraph the most liberal view possible' as a provision for the maintenance of a widow and daughter, I am unable to extend its operation to the radically different state of affairs after the widow’s death for which the testator had made express provision in the paragraph immediately following.

I conclude that there ar^ no grounds for holding that the beneficiaries who take under this will upon the death of Mrs. Virgil without issue, are required to submit to any depletion of the fund which is to be divided among them in order to provide for the comfortable support of Mrs. Virgil in her old age according to the scale of living to which she probably has been accustomed, or according to any scale whatever. It may be conceded that if the mind of the testator in 1888 had been made to consider the probability that his daughter might live to extreme .old age, and that the cost of living might greatly rise, and that' it was his moral duty to provide first of all for the support of his only daughter before manifesting benevolence to his nephews and nieces and charity to missionary societies, he would or might have made the same provisions for the benefit of his daughter which he so carefully made for the support of his widow and daughter during their joint lives. The testator, however, perhaps did not contemplate all probable future conditions, and therefore made no provision for them. It may be noted, however, that the testator made this will in 1888 and died in 1901, without making any change in that instrument, although meanwhile conditions had been greatly changed by the death of his wife. If there was a substantial period between the death of the testator’s wife, the date of which does not appear in the proofs, and his own death, and he kept the provisions of .his will in mind, presumably he was satisfied to have the fourth paragraph of his will go immediately into effect upon his death in case his daughter survived him. It is also possible that the testator reposed upon some erroneous view of the construction and effect of his will under the changed conditions which had occurred after the will was made. Courts can provide no remedy for the evil results of such errors on the part of testators in regard to the meaning of their own wills, as I had occasion to point out in the case of Zabriskie v. Huyler, 62 N. J. Eq. (17 Dick.) 697. It is hardly necessary to say that this will cannot he construed with reference to the “understanding in the family” of the testator after his decease in regard to its meaning.

This-is perhaps one of those quite numerous cases which tempt courts to work out and enforce wills which testators have not made, but which the courts think that the testators would have made if they “had had the whole circumstances present” to their minds. Higgins v. Dawson (1902), A. C. 1, 6.

I think that the foregoing gives the complainant all the instructions called for by the case which he presents to the court. A decree will be advised in accordance with the views herein expressed. If there is any matter presented by the case which has not been covered by this memorandum, counsel may be heard further upon settlement of the decree.


author: Steveüstsoít, Y. C.

text:
    Henry C. Rogers v. Helen A. Rogers.
    [Decided December 19th, 1911.]
    1. On a husband’s petition for divorce on the ground of desertion— Held, upon the evidence, that the obstinacy of the -wife’s desertion is not proved.
    2. The practical test of the duty of the husband to invite the wife back, stated.
    Suit by husband for divorce on the ground of wife’s willful, continuous and obstinate desertion for two years.

      Heard on petition, answer and proofs taken in open court.

      Mr. Archibald G. Karl, for the petitioner.

      Mr. llwam G. Eancc, for the defendant.
   Steveüstsoít, Y. C.

(orally).

My conclusion in the case of Rogers v. Rogers is that the petitioner has not satisfied the court that the defendant has been guilty for two years of an obstinate as well as a willful and continued desertion, and therefore the petition must be dismissed.

I do not propose to go over the facts — the evidence — at length, but I shall deal with the special point that was particularly reserved, namely, the-attitude of mind which the defendant, Mrs-. Bogers, exhibited on the stand by her own testimony with reference to her return to her husband. The parties'disagreed; that is very plain. The wife, with her husband’s consent, went to her parent’s home with her two small children. It would be impossible to discover from this testimony exactly where the burden of blame lies. The indications are that both were to blame. The indications are quite strong that the husband, the petitioner, was, to a very considerable extent, derelict in his- duty to treat his wife with consideration and kindness. The couple disputed and disagreed about the terms On which the wife should return to her husband’s home. Some of the positions which the wife took may not have been warranted, but there is no doubt whatever, I think, that the wife in good faith felt that she had grievances against her husband, although there was very little testimony taken in regard to the physical condition of the husband.

The wife says that she thought that she was in danger if she continued marital intercourse with her husband, that she would become infected with disease. There isn’t a partible of testimony in the case to show that she did not entertain this fear in good faith. She did not trump up this charge against her husband. The husband makes no effort to show that. He does not impeach the good faith of his wife in entertaining this apprehension. It became his duty as a just man to allay her fears and show that her apprehensions were'without foundation. He did nothing of the kind. He stayed away for two years.. His demand was that she should return and comply with his conditions.

The wife and her father also were disposed to impose another condition, namely, that the wife should have the handling of the money which provided the food, fuel, and so forth, for household needs; in other words, that the wife should be trusted, as wives in families of this kind usually are trusted, with disbursing the moneys to run the household. There is nothing here to show that this woman was not competent to- do this work. The indications are that the husband was penurious; that he was inclined to be a miser, and that he was not dealing with his- wife in a reasonably liberal way.

We are not going, however, into all these little matters — these disputes — this haggling over the conditions upon which the wife was to return. The husband went away because she did not submit to his conditions, and remained away for two years without any effort to effect a reconciliation with his wife, and it throws great light on his character when we see that he made no effort to see these little children. A man who can remain away for two years from his children is liable to be the sort of man who would stay away from his wife and care nothing for her. The indications are that there is not a great deal of affection in the heart of this man or he would have accepted these conditions imposed rather than be separated not only from his wife but from his children.

Our law has refrained from laying down any hard and fast rule in 'regard to the duty which is imposed upon a husband, whose wife is separated from him where she is to blame, of inviting her to return. It would be difficult to frame any hard and fast rule. It is not a matter that can be dealt with in that way. When the question comes before the court whether a husband was under a duty to. invite his wife to come back to his home before her continued separation could be adjudged to be obstinate on her part, the only test of any practical value in a large number of cases is the test of -a reasonably kind and just man. Taking all the conditions and all the circumstances into consideration the question is, has this man acted like a just- man ?

Viewing the matter in that way I do not believe that Mr. Rogers, the petitioner here, acted as a reasonably, just and intelligent man ought to have acted when he stayed away for two years in silence without commimieation with his wife and children and during a large part of that time, submitting to the inevitable, contributed money from week to week for the support of these children whom he seems not to have cared to' see or have anything to do with.

When a man sues his wife for divorce for desertion and charges her with willful, continued and obstinate desertion, he must prove that the desertion had those three characteristics. The burden is upon the husband, the petitioner. He must show, by a preponderance of the evidence, that his wife was guilty of obstinate desertion, and, in my judgment, in this case the husband entirely fails. As I have already indicated, the great weight of the evidence in this case tends to show that there was not such obstinacy on the part of the wife — that if proper approaches had been made to her — if an honest, sincere effort had been made by the husband for a reconciliation, it would have been successful.

I looked carefully through the testimony which I desired to have written out by the stenographer — the testimony that Mrs. Rogers herself gave where she, with great frankness, said she was not willing to go back unless her terms were complied with, and I find that she said nothing there to indicate that she had determined if her husband did the right thing and the fair thing that she would never go back to him. She says she was not willing to go back with him unless she had a separate room. The explanation is given. Whether she was warranted or not in her belief, she had a bona fide fear that she would become infected with disease if she returned to him, and the state of mind which she evinced in regard to the necessity of that condition before she would return to her husband is based on this honest, although, perhaps, mistaken, belief. It was her husband’s duty to go to work as a just man and a kind man to remove that apprehension.

I think that the petitioner has entirely failed to make out a case of willful, continued and obstinate desertion, and the petilion, therefore, will be dismissed, with costs, and a reasonable counsel fee. How much do you want, Mr. Hanee ?

Mr. Hance — I think $50 would be a fair allowance. This man is in receipt of a fair income and there has been considerable! work done in the matter.

The Court — I think that is a reasonable amount. You can draw the order dismissing the petition and putting in that amount.


author: Garrison, V. C. Garrison, V. C.

text:
    Commonwealth Roofing Company v. Michael Riccio.
    [Decided September 10th, 1912.]
    Equity has jurisdiction oí a suit to recover from the owner moneys alleged to have been “stopped” in his hands by notice under the third section of the Mechanics’ Lien law, but such jurisdiction is not exclusive, and will not be exercised if the recovery at law is full, plain and adequate, unless there are some features of the case which make it more appropriate for a court of equity than for a court of law, and there being none in this case this court will refrain from exercising its jurisdiction, but will leave the complainant to his action, at law.
    On motion' under rule 313 to strike out the bill.

      Messrs. Condict, Qondict & Boardman, for the complainant.

      Mr. Horace L. Allen, for the defendant.
   Garrison, V. C.

I have sufficiently considered the above case to reach a decision but 'have not had opportunity to prepare a formal opinion. This informal memorandum will serve to enlighten counsel as to the reasons for my disposition of the case; and. in the event of an appeal I will file a formal opinion.

The judgment in the mechanics’ lien suit must be held to settle, as between these parties, that the complainant has not the right to a mechanics’ lien on the land in question; and it is necessarily bound up and settled by this determination that the filed contract is the legal, effective contract between the parties to it. That question was absolutely at issue in that suit, and was settled by the judgment in favor of the defendant, and is not open to be relitigated by the plaintiff and the defendant in this suit. The mere fact that the plaintiff in that suit did not bring forth all the reasons which in his opinion rendered that contract invalid or ineffective is immaterial now; he had opportunity to do so — it was his duty to do so; and he is bound by that judgment just as effectually as if he had done so.

The effect to be given judgments as res adjudicada is dealt with by me in Barber v. Miller (1907), 72 N. J. Eq. (2 Buch.) 248; affirmed in court of errors and appeals (1908), 74 N. J. Eq. (4 Buch.) 453, and under what I there found to be the law I must hold that the judgment in the present case settles, between these parties, that the filed contract must be treated as the valid, legal contract between them.

This being so, the sole question is, Should equity retain jurisdiction of a suit to recover from the owner moneys alleged to have been “stopped” in his hands by notices under the third section of the Mechanics’ Lien law?

Counsel, for the complainant has argued learnedly, and, I think, convincingly, that equity has jurisdiction of such suits. It would almost seem, in consonance with the reasoning employed by the court of errors and appeals in Delafield Cons. Co. v. Sayre, 60 N. J. Law (31 Vr.) 449, that the jurisdiction in equity should have been held to be exclusive. But counsel likewise concedes that it has not been so held, and in fact that most, if not all, of the reported cases where a recovery was sought against the owner under notice filed in pursuance of the third section of the Mechanics’ Lien law were at law. This being so, the utmost that counsel for’ the complainant can successfully argue 'that he has shown is a case where courts of equity and of law have concurrent jurisdiction; and. in all such cases the former have held that they will not exercise their jurisdiction if the recovery at law is full, plain and adequate, unless there are some features of the ease which make it more appropriate for a court of equity than a law court to handle. This is particularly and peculiarly so in all those cases where the only thing sought is a pecuniary recovery.

Therefore, as I view it, there is only one question for consideration in the suit at bar, namely, Are there any features which make it more appropriate to try the case here rather than -at law ? I can see none. It is true the complainant speaks of fraud in this connection, but the fraud which can be investigated in this suit is not in the inception of the contract — it is a fraudulent pretence of payment by the owner to the contractor, a matter entirely within the comprehension and proper disposition of a jury. There is no complexity, circuity ox other feature to invoke the aid of equity — no accounting of any intricacy is involved. The owner either has or has not paid the money due the contractor. If'he pretends he has, and with the aid of the contractor seeks fraudulently to make it. so appear, the falsity of such a claim can be demonstrated to a jury as well as to the chancellor.

bTo discovery is needed excepting such as can, under existing procedure, be obtained at law by examinations before trial.

The action at law, I presume, is in form one for money had and received by the defendant for the use of the plaintiff, and that is in its nature really an equitable action jurisdiction of which has grown up in the law courts. In it, as I view it, the plaintiff will have all the opportunity he would have here, and will obtain identical relief there as here- if he proves his ease.

The tendency of the courts of equity has been to refrain from exercising their jurisdiction in certain classes of eases, particularly those where a mere money recovery is sought, just as soon as the law. courts have possessed .and exercised a jurisdiction adequately to afford a complete remedy.

I think there- is such a ease, and will refrain from exercising the jurisdiction of equity, and leave the complainant to his action at law.

I leave for further determination the question whether, under the act of 1912, the case should now be transferred to a court of law, and if so, how and to which court.

memorandum.

Garrison, V. C.

On the motion to strike out portions of this bill, I gave counsel a hearing to-day, and have determined to strike out the third, fourth, seventh, eighth (down to a certain point) and part of the ninth and part of the tenth paragraphs, and part of the prayers.

The theory on which I am proceeding is this: This bill is framed for two purposes — one is tp retry in this case, upon the theory that there was fraud in the inception of the contract, the right of this complainant to a mechanics’ lien upon the property in question. As to that, the face of the bill shows that they have had their day in court in' the mechanics’ lien suit, and, therefore, if that matter had appeared solely in the bill, the entire bill from beginning to end would have been stricken out upon a motion to strike out (which is, in effect, a demurrer). Treating the motion as having this effect now, I strike out from this bill all that part of it, from beginning to end, which asserts by way of charge, statement or prayer, a right to a mechanics’ lien, holding that, upon the face of the bill, is-shown to be an attempt to have this court retry a case which has been tried and determined between these very parties at law.

The rest of the bill, that concerns the right of the complainant to collect from the owner money alleged to be in his hands, stop-noticed there under the act, is properly charged in the part left in, and the proper prayers to effectuate that relief are left in.

• This memorandum should accompany the other memorandum if the case goes to the court of errors and appeals, because only in that way could that court understand what this court has done.


author: Leaming., V. .C.

text:
    Charles Mecum, executor, &c., v. H. Clay Stoughton et al.
    [Submitted February 17th, 1913.
    Determined February 22d, 1913.]
    1. The use of the words “my stock” or “stock owned by me,” and similar language, sufficiently individuates the stock then owned by a testator to render a legacy thereof specific.
    2. A joint will executed by two sisters provided that the survivor should take for life the entire estate of the one dying first, with power to dispose of it, and, after the death of the survivor, bequeathed stock of a corporation in the following form: “We give and bequeath unto * * * forty shares of the capital stock of the Lehigh Valley Railroad Company.” At the date of the will testatrices owned in the aggregate exactly the number of shares of stock in that corporation which were given by the will, but, at the death of the surviving testatrix, some of it had been sold. Other bequests in the will also included corporate stocks and chattels equal to the exact amount owned at the time the will was executed.— Held, in view of the survivor’s rights of disposition, that the legacies of the railroad stock were general; the mere fact that they owned the exact number of shares bequeathed,not making them specific.
    3. In determining- whether legacies of stock are general or specific, the inquiry is not whether testator may not have intended to give the specific shares then owned, but whether it clearly appears that he did so intend, for a clear intention upon the part of a testator must appear in order to make a legacy specific.
    4. An intention to make a legacy of stock specific necessarily includes an intent to render it subject to ademption in the event of the specific security being converted to cash.
    Final hearing on bill for construction of will.
    The bill is filed for the construction of a joint will made by two sisters. The will provides that in the event of either dying before the other the survivor shall take for life the entire estate! of the one dying first, with power to dispose of it. It then provides that after the death of the survivor the property not then disposed of shall be disposed of in the manner therein stated. Both testatrices are now deceased. The will contains .a number of bequests of money to charities and to relatives and a number of bequests of stocks of corporations tb various legatees and also bequests of household goods, and concludes with a residuary bequest and devise to certain persons therein named.
    At the hearing all questions were disposed of except the single question whether certain bequests of. capital stock of the Lehigh Valley Railroad Company are general or specific legacies. There are several bequests of stock of that company, but all are in substantially the following form: “We give and bequeath unto * * * , forty shares of the capital stock of the Lehigh Valley Railroad Go.”

    The doubts which are suggested touching these bequests of stock of the Lehigh Valley Railroad Company arise from the circumstance that 'at the date of the will testatrices owned in the aggregate exactly the number of shares of.stock of that company which are given by the will; but at the death of the surviving testatrix some of that stock had been sold.

      Mr. Lewis Starr, for the complainant.

      Messrs. J. Forman Sinhiclcson and John O. Horner, for the defendants.
   Leaming., V. .C.

It will be observed that the legacies in question are in form general; the single inquiry is whether they must be regarded as specific, and subject to ademption, from the circumstance that at the date of the will testatrices owned the exact- number of shares of stock of the Lehigh Valley Railroad Company that are, in the aggregate, bequeathed by the will.

There are a few adjudicated cases to the effect that the circumstance named Is a sufficient indication of a testator’s intent to bequeath the very shares owned by him at the date of the will to justify a court in treating such a bequest as specific, notwithstanding the fact that the bequest, is, in form, general; but the great preponderance of authority is undoubtedly to the contrary.

The rule, as stated by Professor Pomeroy in 8 Pom. E'q. Jur. § 1182, is as follows:

“A gift of any chattel or clmttels^-as a white horse, or furniture, or goods, or of any kind of securities, such as shares in any stock, or government bonds, and the like — may be general, and loill be general, even though the testator owns at the time articles of the same kind, or even owns an article precisely answering to the description, unless the language of the bequest describes and certainly, points out as the thing .given some identical article, horse, furniture, goods, or some identical shares of stocks, bonds, or fund, existing as a paut of testator’s estate.”

In note 2 to section 1130 touching corporate stock the same author says:

“Where the bequest is merely descriptive generally of the stock, shares, etc., given, the legacy is not specific, although the testator may at the time own stock answering the description, and even may own the exact number of shares given, e. g., as where he gives so much stock, or so many shares, or the like, not using additional words pointing to any identical shares, as ‘my’ stock, or the stock which ‘I now possess,’ etc.”

This rule, as stated in. 18 Am. & Eng. Encyd. L. {2d ad.) 7IS, is as follows:

“When bonds, or other securities are disposed of by will, but it does not designate them as comprising a part of the testator’s estate, and the legacy may be satisfied by delivering to the legatee any securities of the kind and the value or amount specified, it is a general legacy, though the testator owned securities of the kind specified, and corresponding exactly to the number of shares or amounts bequeathed.”

The same rule is defined in JjO Oye. 1875, as follows:

“Where a testator makes bequests of stocks, bonds, or other securities but the will does not designate them as composing part of testator’s estate and the legacy may be satisfied by delivering to the legatee any securities of the kind and value or amount specified, the legacy should, according to a preponderance of authority, be regarded as general even though the testator owned securities of the kind specified, corresponding to the number of shares or amount bequeathed.”

The rule is defined in Roy. Lag. *205, as follows:

“But it seems to be settled that mere possession by the testator, at the date of his will, of stock or securities of equal or larger amount than the bequest, will not (without words of reference, or an intention appearing upon the will that he meant the identical stock of which hp was possessed) make such bequest specific.”

See, also, to the same effect note to Ashburner v. Macgure, in 2 White & T. Lead. Gas. *258, *259. Note to Snyder’s Estate, in 1€ Am. & Eng. Anno. Gas. 488. There are, however, as already-suggested, a few reported cases which are not in harmony with the generally accepted rule above stated; in these cases — which I regard as exceptional — it fias been held that where at the date Of the will testator owned stock of the kind and of the exact amount specified in the bequest, that circumstance should be regarded as sufficient'to establish an intent upon the part of testator to bequeath that specific stock and thus render the legacy specific and subject to ademption in the event of testator subsequently disposing of a part or all of such stock. That view is adopted in Jeffreys v. Jeffreys, 3 Aik. 120. That was a decision rendered by the master of the rolls in the year TM3, and dhe decree appears to have been subsequently affirmed by Lord Hardwicke. That decision is based upon the following distinction which I have not seen elsewhere recognized: “Corn or sheep are in their nature perishable, but when a man buys stock, he buys it to have continuance as long as he lives, and therefore when he devises any quantity of corn or sheep, though he has such quantity at the time of making the will, yet he cannot, from the nature of the thing, be taken to intend that the individual quantity of corn or sheep will go to his legatee; but when he devises any quantity of stock, which in its nature is durable, and may continue in the same state to the time of his death, if he has the stock at the time, he cannot but be taken to intend that very individual stock, and if so, the sale of it is undoubtedly an ademption pro tanto.” I do not find the rule laid down in Jeffreys v. Jeffreys followed in any subsequent English case, but in Robmson v. Addison, decided in the year 1840, 2 Bear. 515, the opposite view is adopted. In that case testator at the date of his will owned fifteen and'one-half shares of stock in a certain company; he bequeathed five and one-half shares of stock of that company to A, five shares to B, and five shares to C. The legacies were held general.' The opinion says: “Various arguments depending on the general scope and effect of the will were used for the purpose of showing that the testator, in giving the precise number of shares which he possessed, must have had those shares in his contemplation, and none other, and, consequently, must have meant specific gifts of them. * * * It was further urged that the shares of this canal were so rarely brought to market that they could not be considered as transferable or purchasable for money, and could not be considered as gifts of particular things which the executors could purchase out of the assets. It is, however, clear that the testator, if he had meant to give only the shares which he had, might have designated them as ‘his’ — that the mere circumstance of the testator having, at the date of his will, a particular property of equal amount to the bequests of the like property which he has given without designating it as the same, is not a ground upon which the court can conclude that the legacies are specific.” In White v. Winchester, 6 Pick 47, it is held that the circumstance that testator owned, at the date of the will, the exact number of shares of stock of the kind which he bequeathed is sufficient to justify the conclusion that he intended to give that specific #stock. The opinion of the court, in that case, says: “The general rule is, that if stock be bequeathed, and the testator owns the stock'described, at the time of making the will, the bequest must be considered specific. Selwood v. Mildmay, 3 Ves. 310.” This is clearly an inaccurate or incomplete statement of the law. In .the very case cited to sustain the statement (Selwood v. Mildmay) the bequest was “my stock in the 4 per cent, annuities of the Bank of England,” and in the several portions limited over testator uniformly referred to the stock as his four per cent, stock. The opinion of the court, in White v. Winchester, after stating as above quoted, and citing Selwood v. Mildmay, proceeds to state the facts upon which Jeffreys v. Jeffreys, supra, was decided and adopts the views of that case. In a subsequent Massachusetts cáse (Johnson v. Gass, 128 Mass. 433) testator owned stock of the kind bequeathed, but owned more -shares than the number of shares bequeathed. That was held to be a general devise. The same has been held in Blair v. Scribner, 67 N. J. Eq. (1 Robb.) 583. In Waters v. Hatch, 181 Mo. 262, it is also held that a bequest of certain number of shares of stock in a certain company is specific if in fact testator then owned that exact number of shares in that company. No discussion of the subject is contained in the decision, and no authorities are cited except the definition given of a specific legacy in IS Am. & Eng. Encycl. L. 7Uh The only other case which has been brought to my attention adopting the view stated in Jeffreys v. Jeffreys, supra, is In re Martin, 25 R. I. 1. That case concedes, however, that a preponderance of authorities is against the view there adopted.

On the whole, it must be said that the views entertained in the four cases above reviewed (Jeffreys v. Jeffreys, White v. Winchester, Waters v. Hatch and In re Martin), to the effect that where a bequest of stock is general in form, it will be regarded as specific from the single circumstance that testator at the time owned the exact number and kind of shares bequeathed, finds but feeble support in the adjudicated cases, and that the great preponderance of authority and generally accepted view is to the contrary.

But for the accepted view that the use of the words “my stock,” or ‘‘stock owned by me,” and similar language, sufficiently individuates the stock then owned by a testator to render the legacy specific, great hesitancy might well be exercised in treating even such a legacy specific when shares of a certain stock issue are given to several persons by separate and distinct bequests and the aggregate number or amount of shares given exactly equal the amount then owned by testator, and testator subsequently parts with a part of the stock. If a testator owns three shares of stock in a certain company, and bequeathes to A one share of “my” stock in that companjq and by a distinct but similarly framed bequest gives two shares of “my” stock in the company to B, it is obvious that neither of the legacies can be regarded as specific in determining which particular share is intended for A, or which two shares are intended for B. That would be wholly immaterial but for the principle of ademption which is inseparably connected with and forms an integral part of all specific legacies; the intention to make the legacy specific must include the intention to render the legacy subject to ademption. Should testator, in the case supposed, subsequently part with one share of the -stock so bequeathed, it will be found that at the date of his death — the time when the will not only actually takes effect, but also the time at which and with reference to which the testator intends that the will shall take effect — he owns but two shares. To treat these two legacies as specific under the circumstances stated, it must be assumed that testator intended at his .decease to reduce the bequests to both A and B in such manner that each should specifically receive impossible fractional shares of stock. Where such a bequest is made to a single legatee, it may well be regarded as specific; but when made to several independent legatees in such manner that it cannot be determined which sj)ecifie shares are intended for each of the several legatees, it is difficult to refrain from doubting the soundness of the' conclusion that testator can in such case be said to have clearly intended the several legacies as specific.

I am convinced that the legacies here in question must be regarded as general and not specific legacies unless some additional circumstances 'can be found which adequately disclose a contrary intent upon the part of testators. An additional circumstance here urged is that other bequests in the will here in question also included corporate stocks and chattels which were, in amount, the exact amounts owned by testatrices at the time the will was executed. If, in a single bequest of stock, in form general, the circumstance that testator at the time owned stock of the kind and in the exact amount named is inadequate to justify the conclusion of an intent to make the legacy specific, the additional circumstance that a similar condition existed touching other bequests of other stock or chattels must' be regarded as in like manner inconclusive. The inquiry is not whether testator may not have intended to give the specific shares then owned, but is whether it clearly appears that testator did so intend, for it must constantly be borne in mind that a clear intention upon the part of a testator must appear in order to make a legacy specific. This latter rule of construction is universally recognized and is specifically laid down by our court of last resort in Blair v. Scribner, 67 N. J. Eq. (1 Robb.) 583, 588.

Another circumstance peculiarly applicable to this case may be appropriately referred to. As already stated, the will here in question is a joint will of two sisters. It gives to the survivor for life the unrestricted use and right of disposition of the entire estate of the one dying first, and is the joint will of the two touching the entire estate of both, as that estate may be found to exist at the date of the death of the survivor. The several bequests contained in the will express the joint intent of the two minds, as that intent existed when the will was executed. In addition to a great number of money bequests the will contains a number of bequests of various corporate stocks, all general in form, but in the aggregate amounts corresponding to shares then owned. It thus becomes apparent that if these several bequests of corporate stock are to be deemed specific legacies, it became impossible for the surviving sister to convert a share of stock into cash without thereby reducing the legacies of all persons to whom stock of that kind was given and correspondingly increasing the bequest to the residuary legatees. While the will clearly gives to the survivor the unrestricted right to convert any asset of the estate into cash, it is extremely difficult h> accept the conclusion that there was a mutual intent to render the free exercise of that right by the survivor impossible without thereby destroying the measure of bounty to the several legatees which the united judgment of the two had theretofore determined upon. If an intent to make a legacy specific is to be ascertained, that intent necessary includes an intent to render the bequest subject to ademption in the event of the specific security being converted into cash. I do not attribute to this circumstance great weight, because it was in the power of the survivor to prevent ademption by codicils to the will; but I am unable to believe that it was the mutual intent of.these testatrices in making these bequests to render them subject to ademption.

I find ho other provision of the will or circumstance surrounding its execution which can be properly said to afford assistance in the ascertainment of testator’s intention touching the legacies here in question. It is urged that the introductory paragraphs of the will indicate an intention of testatrices to dispose of all of their estate, and that these clauses should be given the force of making the legacies here in question read “my stock” or “stock owned by me.” I am unable to adopt that view.

I will advise a decree in accordance with the views herein expressed.


author: Leamixo, V. C.

text:
    Frank Sailer v. Emma E. Podolski.
    [Submitted January 27th, 1913.
    Determined March 5th, 1913.]
    1. A restrictive building- covenant relating to porches provided that “no building shall be erected having its porch floor higher than nine feet above the established grade of streets bounding said lots.” The porches of the proposed building, as designed, are admittedly to be more than nine feet above the established street grade. But the covenant above quoted forms a part of a covenant relating to the location of the building with reference to the exterior boundaries of the lot, which latter covenant provides that “the main body of no building- shall be erected nearer the front property line of any avenue than twelve feet,” and that “bay windows may be erected within the restricted space, provided they do not extend over two feet from the main body of the building.” Then follows the covenant touching porches above quoted. — Held, that the covenant, being limited in matters of location to the main body of the building, clearly contemplates the erection of porches extending into the restricted space, but restricts their height. In reading this restriction touching porches in connection with the other parts of the covenant, it is impossible to say, with certainty, that it relates to porches other than those which extend into the restricted space.
    2. The rule that covenants of this nature, if vague or uncertain, cannot be enforced by this court, clearly forbids preliminary' relief in this suit based on the porch covenant.
    3. Another covenant providing “that no building shall be erected or used except for cottage resident purposes, hotels and drug stores” is violated where the building- in question is being erected for use as a flat or apartment-house..
    4. A preliminary writ should not be issued, inasmuch as the exact conditions can be more accurately ascertained at final hearing and no substantial injury will be suffered by complainant in the interim. If defendant persists in his present purpose and erects a building violative of the restrictive covenants here in question, he does so at his peril, and complainant will, at final hearing, become entitled to a mandatory writ.
    On bill, &c.,yfor injunction. Hearing at return of order to show cause for preliminary injunction.

      Mr. Theodore IF. Schimpf and Mr. James M. Sheen, for the complainant. .

      Messrs. Bourgeois £ Coulomb, for the defendant.
   Leamixo, V. C.

Complainant seeks a preliminary injunction to prevent defendant from erecting'a proposed building in violation of the terms of two certain restrictive building covenants. One of the covenants is as follows: “No building shall be erected having its porch floor higher than nine feet above the established grade of streets bounding said lots.”

The porches of the proposed building, as designed, arc admittedly to be more than nine feet above the established street grade. But the covenant above quoted forms a part of a covenant relating to the location of the building with reference to the exterior boundaries of the lot. The covenant provides that “the main body of no building shall he erected nearer the front property line of any avenue than twelve feet.” It then provides that “bay windows may be erected within the restricted space, provided they do not extend over two feet from the main body of the building.” Then follows the covenant touching porches above quoted. This porch covenant is, undoubtedly, explicit in its inhibition of porches more than nine feet above the street grade. It will he observed, however, that the covenant primarily relates to and restricts the location of the “main body” of the building. Bay windows, which might he claimed to he a part of the main body of a' building, are then permitted to extend two feet into the restricted space. It follows that the covenant, being limited in matters of location to the main body of the building, clearly contemplates the erection of porches extending into the restricted space, but restricts their 'height. In reading this restriction touching porches in connection with the other parts of the covenant, it seems.clearly impossible to say with certainty that it relates to porches other than those which extend into the restricted space. The porches here in question will not Extend into the restricted space. The main body of the building is located so far away from the street that the proposed porches will be wholly between tlie main body of the building and the restricted territory. The rule that covenants of this nature, if vague or uncertain, cannot be enforced by this eourt, has been applied by our court of 'last resort with strictness which clearly forbids preliminary relief in this suit based on the porch covenant. Fortesque v. Carroll, 76 N. J. Eq. (6 Buch.) 583.

The other covenant which complainant seeks to enforce is as follows: “That no building shall be erected or used except for cottage resident purposes, hotels and drug stores.” The claim of complainant is that the building in question is being erected for use as a flat or apartment-house. There is, undoubtedly, great force in the contention of complainant. Elats and apartment-houses, as those terms are now used, have been clearly described and defined by this court in Skillman v. Smatheurst, 57 N. J. Eq. (12 Dick.) 1; Lignot v. Jaekle, 72 N. J. Eq. (2 Buch.) 233, and Koch v. Gorruflo, 77 N. J. Eq. (7 Buch.) 172. That the general nature and probable proposed use of the building which defendant is erecting is that defined in the cases above cited as an apartment-house, I think there is but little doubt. NTor am I at present inclined to the view that any considerable doubt can be said to exist as to the meaning of the clause “cottage resident purposes,” especially in a covenant touching a building at a seaside resort.

I do not think, however, that a preliminary writ should be issued. The exact conditions can be more accurately ascertained at final hearing and no substantial injury will be suffered by complainant in the interim. If defendant persists in his present purpose and erects a building violative of the restrictive covenants here in question, he does so at his peril, and complainant will, at final hearing, become entitled to a mandatory writ.


author: Leaking, V. O.

text:
    Daniel H. Park v. Supreme Circle, Brotherhood of America, et al.
    [Submitted February 27th, 1912.
    Determined February 28th, 1913.]
    When complainant became a member of defendant mutual benefit association, the by-laws provided for a single death fund, created by a flat rate of dues, irrespective of age, at the rate of fifty cents a month, with a possibility of increase to sixty cents a month, from which should be paid, upon the death of each member, the sum of $500. Subsequent amendments to the by-laws created two divisions of the death fund, designated divisions 1 and 2, and provided that division 1 should include all members of the fund admitted on or after March 1st, 1910, and such members admitted prior thereto who elected to become members of that division, and division 2 should be composed of all members not included in division 1, and that the benefits of either division should be paid as follows (that is, $100 to the beneficiary of a member dying within one year from date of admission, $200 upon death within two years, &c.), the highest amount being $500 payable to beneficiaries of members dying after four years from date .of admission; and the amendment also provided that the reserve fund, including the moneys of the death benefit fund, should be equitably apportioned among the whole membership in proportion to the duration of membership, and that part set apart for members of division 1 should remain a trust fund for losses arising under that division, and that part set apart for members of division 2 should be a trust fund for losses arising under that division.- — Eeld, that the amendment in effect established withdrawal values based upon the period of membership, and therefore violated the contracts of those members who became such before the amendment, and hence was illegal.
    On bill, &c., for injunction. Hearing at return of order to show cause.

      Mr. Oscar B. Redrow, for the complainant.

      Mr. John F. Mamed, for the defendants.
   Leaking, V. O.

The purpose of the bill is to determine the validity, as against complainant and others similarly situated, of certain “laws” adopted July 31st, -1912, by the supreme circle of a fraternal and beneficial society known as “Brotherhood of America.” The bill is filed by a member of Welcome Circle, Mo. 3, and asserts that the action taken by _ the supreme circle is violative of his contractual rights.

The present hearing is at the return of an order to show cause for a preliminary injunction to restrain defendant from further-acting under the amended by-law to the injury of the contractual rights asserted by complainant.

There is in connection with this association or “order” a system of beneficial insurance whereby at the death of a member certain money is paid to the member’s appointed beneficiary. In the literature of the society the members thus entitled to death benefits are called “Members of the Death Benefit Fund” (formerly called “Funeral Benefit Fund”) of the supreme circle. Annexed to the bill is a copy of the by-laws which were in force touching this fund in the year 1901, at the time complainant became a member. Section 1 of these by-laws provides :

“Any person between the ages of eighteen and forty-five years, initiated, reinstated or admitted by card as a beneficial member in a Circle or Home of this Order, shall thereby become a member of the Funeral Benefit (now called Death Benefit) Fund of the Supreme Circle, Brotherhood of the Union” (now Brotherhood of America).

This and other sections contemplate that all members of the order between the ages named, not physically disqualified, shall become “members of the fund.” By the subsequent sections various details and conditions are provided touching memberships and forfeiture of memberships in the fund. Mo provision is made contemplating the establishment of a withdrawal value of membership or the right of withdrawal without forfeiture of all interest iu the. fund. By section 14 it is provided:

“The dues to this Fund shall be fifty cents per month for all members of the same; provided, however, that when the receipts of this fund (together with the cash in hand) are not sufficient to pay the liabilities for such month, the Trustees shall increase the monthly dues to sixty cents until the income and cash in hand shall equal the liabilities.”

Section 15 provides that the death benefit of a member of the fund dying within one hundred and eighty-three days from the date of admission with Bright’s disease, consumption, or valvular disease of the heart, shall be $5, and no more. In all other cases it shall be $500. Section 20 provides:

“Five por cent, of the monthly receipts shall he added to the Reserve Fund, the same to be deposited in banks or trust companies paying interest. Said depositories to be designated by the Trustees, or to be invested in such manner as the Supreme Circle’ may direct. ¿So appropriation shall be made from the Reserve Fund, except for the payment of funeral benefits for members, and then only by a vote of the Supreme Circle at an annual or special session.”

Erom the foregoing it will be observed that at the date complainant became a member the by-laws contemplated the establishment of a single fund to be created by a flat rate of dues, and the payment from that fund to the beneficiary of each deceased member the sum of $500, unless the anember died within one hundred and eighty-three day's by reason of one of the diseases named, and in that event but $5; and further contemplated that the dues should be, irrespective of the age of the member, fifty cents per month, with possibility of increase to. sixty cents per month in a certain contingency there stated.

The answer sets forth, and it may he here assumed as a fact, that in the early years of the organization fifty cents per month from members was found to raise more money than was necessary; but that after the fund had been established for some years it was ascertained that by reason of the members growing older the death rate was increased, and, in consequence, the dues of fifty cents per month became apparently inadequate. Accordingly', a change in the by'-Iaws was made to take effect March 1st, 1910. By that amendment of the by-laws the fiat rate of fifty cents per month was abolished and a schedule of rates was adopted graduating all dues according to the age of the members ■ as follows: Sixteen to twenty-one years, forty cents per month; twenty-one to twenty-six years, forty-five cents; thirty-one to thirty-six years, sixty cents; thirty-six to forty-one years, seventy-five cents; forty-one and upwards, ninety cents. A hill was then filed in this court by a member to enjoin the supreme circle from enforcing the new by-law. This court granted the injunction sought, holding, among other things, that “complainant’s membership in the death benefit fund constitutes a contract between him and the order, and one which could not be materially altered under the assumption of power to amend existing in the laws of the order in general terms.” The decree of this court was subsequently affirmed by the court of errors and appeals on the opinion filed in this court by Vice-Chancellor (now Chancel-' lor) Walker. That opinion has not yet been reported. Pending that suit this court permitted the supreme circle to receive the increased rates of dues from such members as were willing to pay the increased rates, hut enjoined the suspension of members for refusal to pay the increased rates. See Poole v. Supreme Circle, 80 N. J. Eq. (10 Buch.) 259.

The consequences flowing from this change of rates, and the subsequent determination that the increase could not lawfully be made as against members existing prior to the change, was that at the time of the final decision of the, suit referred to by the court of last resort three classes of members existed. Those who had joined prior to March 1st, 1910, and who had refused to accede to the increased rate. Those who had joined prior to March 1st, 1910, and who had paid the increased rate subsequent to that date. Those who had joined subsequent to March 1st, 1910; these had all paid the increased rates. To meet these conditions the by-laws were further amended July 31st, 1912. It is these further amendments of the by-laws which complainant now challenges by the present bill..

These further amendments create two divisions of the fund, designated respectively as divisions 1 and 2:

“Division 1 shall be composed of all members of tbe death benefit fund who were admitted on or after March 1st, 1910, and such members admitted prior to that date who shall elect to become members of said division. Division 2 shall be composed of .all other members not included in division 1.”

The amendments further provide as follows:

“The benefits to be paid upon the death of a beneficial member of either Division of this fund shall be as follows: Class A. Dying within one year from date of last admission, $100. Dying within two years from date of last admission, $200. Dying within three years from date of last admission, $300. Dying within four years from date of last admission, $400. Dying after four years from date of last admission, $500.”

This, it will be observed, will reduce the amount payable to a member of division 2 who has not been a member longer than four years. As complainant has been a member longer than four years this amendment does not reduce the amount payable to him. The rates of dues provided for division 1 are made the same as in the former amendments, already referred to. The rates for division 2 are left the same as when complainant became a member. A further amendment was made apportioning the accumulated reserve fund between the two divisions. That provision is as follows:

“The Beserve Fund held by the Supreme Circle shall be equitably divided by apportioning it among the whole membership in proportion to the duration of membership; and that portion set apart for members of division 1, together with the accumulation that may come to it under these laws, shall be and remain a trust fund separate and distinct for losses arising in division 1; and that portion set apart for members of division 2, together with the accumulation that may come to it under these laws, shall be and remain a trust fund separate and distinct for losses arising under division 2; and under no circumstances or at no time shall the trust fund of one division be liable for or be taken to pay the losses arising under the other division.”

Another amendment is to substantially the same effect as the one last quoted, and includes all moneys of the death benefit fund.

It is conceded that the division of the fund between the two divisions referred to in the amendment last above quoted, “in proportion to the duration of membership,” means that the total duration of membership is ascertained by giving-to each member a numeral corresponding to his years of membership, and the aggregate- of these numerals will represent the total years of membership in the fund; the total of these numerals in each separate division will then represent the proportionate amounts of the entire fund to be transferred to each division.

From the foregoing it appears that it having been found unlawful, as against members who joined prior to March 1st, 1910, to increase dues above fifty cents p'er month (except in the contingency stated, and then only to sixty cents per month) or to graduate the dues of such members according to ages, and also unlawful, as against such members, to reduce the amount to be paid to them below $500 (except in tlie -event of death by certain diseases within one hundred and eighty-tliree months from date of membership, in which event the amount payable was $5), a plan was adopted in 1912, the substantial effect of which was to create a new death benefit fund to which all members joining the order after March 1st, 1910, should belong and to which all members who had joined prior to that time were privileged to transfer their membership and also transfer a percentage of the assets of the old fund.

It is unnecessary to here question the right of the society to establish a new death benefit fund with dues and benefits graduated according to age and to extend the privilege of membership in that fund to all members of the society; nor is it necessary to here determine that the rights of members in the old fund am invaded by a new by-law which prevents future accessions to the membership to that fund. It may be appropriately sug- ■ gested in that connection, however, that such doubt as may he said to have heretofore existed touching the adequacy of the amount of dues paid to that fund to insure its successful operation would seem to be converted into practical certainty by the inhibition of new members.

The amendments here in question go much further than the mere establishment of a new fund or the enactment of a re- . quirement that all new members shall become members of the new fund. These amendments privilege a member of the old fund to withdraw his membership from that fund and privilege such member in so doing to take with him a defined amount of money from the accumulations in that fund for the benefit of the new fund in which he becomes a member.

In effect there is thus established not only a withdrawal privilege but also a withdrawal value, provided the withdrawal is from the old to the new fund. In this connection it may be here appropriately suggested that it cannot, consistently with the ordinary course of human conduct, be assumed that such withdrawals will be by members of the average age of membership; members over twentj^-six years of age could1 not be transferred without an increase of dues; members under twenty-six years of age would, by transfer, be subjected to less dues. The result seems reasonably obvious. The requirement that all new members of the order join the new fund necessarily denies to the old fund the benefit of members with long .expectancies of life; the privilege of withdrawal from the old to the new fund naturally tends to remove from the old fund the members thereof with the longer life expectancies.

But even though it should be assumed that the society, under a general power of amendment of its by-laws, retains to itself not only the right to establish a new fund and to exclude new members from joining the old fund, but also the right to establish withdrawal values of memberships, and permit the transfer of memberships and the withdrawal values so established to a new fund — rights which 1 am by no means prepared to concede — it is entirely manifest that such withdrawal values could only be established in a'manner in harmony with the contracts made with the several members of the fund. The contracts of membership under which the fund was established contemplate the payment to the fund by all members of the fund an equal monthly amount, and contemplate a payment from the fund of $500 to the beneficiary of a member at the decease of a member, irrespective of the member’s age or period of membership. Under such contractual engagements the rights in the fund of a member of the fund who is twenty years of age and who has enjoyed one year’s membership is less in real value than that of a member who is forty years of age and who has enjoyed an equal period of membership. As a system of insurance it may have been unscientifically planned; but such is the nature of the several contracts which were entered into by the society and all of the members of the old fund. It necessarily follows that to give to a younger member the same withdrawal value as that of au older member of equal period of membership and authorize the younger member to transfer his membership and such established withdrawal value to a new fund is in disregard of the rights of the older member, as such rights are established by the contracts of membership. It is true that each has contributed to the fund the same amount in case each has been a member for the same period of time; but the contributions have been made under contractual engagements that both should, at death, receive the same amount, irrespective of their respective ages, or life expectancies, at the time of becoming members. It therefore becomes immaterial, under the contracts made, how long a member has been a member or what his age may be; after becoming a member his real interest in the fund is, under such a system, dependent solely upon his life expectane3r, for that element is the only element of inequality of the several members. The establishment of withdrawal values based alone upon periods of membership is consequently violative of the contractual rights flowing from the several contracts of membership. It seems to me entirely clear that complainant is entitled to protection against the enforcement of the amended by-laws.

I do not think, however, that a preliminary injunction should be issued if defendant prefers to go to final hearing in the belief that additional light can in that manner be thrown on the case. While no substantial dispute at this time appears to exist touching the material facts, it seems manifest that no emergent condition now exists that demands preliminary relief; the division of the fund is essentially a matter of bookkeeping which can be easity adjusted at any time. If, however, defendant is content to allow, the case to stand upon the evidence now before the court, I will advise a preliminary writ restraining defendant from enforcing the by-law that transfers money from the old to the new fund.