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    The Fidelity Trust Company v. Hoboken and Manhattan Railroad Company et al.
    [Argued January 9th, 1906.
    Decided March 6th, 1906.]
    A plot of land belonging to a street railway corporation, and used in the prosecution of its business of carrying passengers, which was included in a mortgage of the whole plant and franchises of the railway corporation, was leased by it for nine hundred and ninety-nine years, so that the lessee acquired exclusive rights to the surface of a large portion of the plot and underground privileges. The railway corporation reserved thereby a portion of the plot for the use of its surface system of railways, and was entitled, under the lease and contract, to maintain elevated tracks thereon for the use of its elevated system of railways in substantial compliance with a plan accompanying the lease and contract.—Held, (1) that while a mortgagor or án owner of premises subject to a mortgage is entitled to manage, control and dispose of the mortgaged premises at his pleasure, yet a mortgagee thereof may demand relief against the mortgagor or his assigns, owners' of the mortgaged premises or lessees thereof, if their acts, if carried out according to their contracts and proposed plans, will operate to depreciate the value of the property upon which the mortgage is security; (2) a mortgagee, with a mortgage on the plot of land above mentioned, may obtain relief against the execution of the plan proposed by the lease and contract between the present owner and the lessee, if the plan tends to diminish the power of the street railway corporation to operate its plant under its franchises with profit.—Held further, (1) ihe mortgagee of the plot has no ground for complaint of a lease of part thereof, on the ground that thereby the railway corporation has debarred itself from enlargement of its terminal facilities, although such enlargement seems to be desirable and is claimed to be necessary in the near future; a mortgagee accepts the security as it was when the mortgage was made, and while he may have been influenced in accepting it by a reasonable expectation that the interest of the mortgagor would require betterments which would increase his security, yet he acquires no right to require any such betterments, and has not been really injured by the present owner divesting itself of the right to make betterments; (2) when the owner of such a plot subject to a mortgage which includes the plant and franchises of a railway corporation, which plot is necessary for the profitable use of the railway corporation in the conduct of its business, leases portions of the tract to another corporation which proposes to make use of the same, in part, for a traffic in carrying passengers, which competes with that carried on by the railway corporation, a case of threatened injury and deterioration of the mortgaged premises is presented, which justifies relief; (3) where the plan proposed by the parties to the lease and contract for the continued working of the cars of the railroad corporation is shown to be incapable of being carried out without the acquisition of additional land for the support of elevated tracks, and the railway corporation has no power to acquire the right to erect or maintain such tracks by condemnation of the right of property owners, if the tracks are projected to be elevated upon private property, and has no right to erect or maintain the same if projected to be erected upon property subjected to the use of a public highway, without the consent of certain of the property owners and of the municipality; and where, if the elevated tracks thus planned cannot be erected and maintained, the railway corporation would be compelled to arrest its cars and deliver its passengers at a distance from a ferry which is now contiguous to said plot, or to make use of elevated stub tracks upon the plot, which are conceded to be inefficient, a case of impairment and deterioration to the mortgaged premises is exhibited, for which the mortgagee may have relief.-—Held further, that the corporation holding in trust the mortgage securing bondholders may assert its right to relief against deterioration- of the security of the mortgage, notwithstanding some of its directors are also directors in the railway corporation which has executed the lease and contract complained of, or in a corporation which is a large stockholder therein, the relief sought being for the protection of bondholders who are cestui que trustent. The lessee asserts, by its answer, that the bonds secured by the mortgage in question have matured, and offers to pay the same on demand. The complainant asserts that the bonds have been extended by an agreement, and are not now due.—Held further, that the right of the lessee to- redeem should be asserted by tender and by- a proper bill for redemption.
    On motion to dissolve injunction, &e.

      Messrs. Collins & Corbin, for the motion.

      Mr. Srnnuel W. Beldon and Mr. Robert E. McCarter, contra.

   Magie, Chancellor.

The bill in this cause is filed by the Fidelity Trust Company, the complainant, as the holder in trust of a mortgage upon certain property and franchises now belonging to the Jersey City, Hoboken and Paterson Street Railway Company, and it states that the mortgage secures bonds, issued and outstanding, to the amount of $1,291,000. It further states that there are mortgages securing bonds outstanding to the amount of $2,998,000 upon said property and franchises, which are prior liens to the mortgage held by the complainant. The bill makes parties defendant the Hoboken and Manhattan Railroad Company, a corporation of the State of New Jersey, and the New York and Jersey Railroad Company, a corporation of the State of New York (which two companies are engaged in the construction of tunnels under the Hudson river between New Jersey and New York); the Jersey City, Hoboken and Paterson Street Railway Company, and the Public Service Corporation of New Jersey.

¡/The bill prays relief by an injunction restraining the Hoboken and Manhattan Railroad Company and the New York and Jersey Railroad Company from committing waste or destruction upon the premises covered by the complainant’s mortgage by making excavations thereon and removing the tracks, buildings or other property thereon.

Upon filing the bill with its accompanying affidavits, an injunction issued according to its prayer. • -•

The Hoboken and Manhattan Railroad Company and the New York and Jersey Railroad Company have filed an answer, with accompanying affidavits, and given notice of a motion to dissolve the injunction. The motion has been brought to hearing upon the bill and affidavits, the answer and affidavits, and rebutting affidavits presented by the complainants.

It may be premised that the question presented in this cause is in no respect affected by .conclusions reached in any of the litigations between the answering defendants and the Jersey Gity, Hoboken and Paterson Street Railroad Company, or any of the stockholders'thereof, respecting their contractual relations under the instrument hereafter described. This bill is one by a mortgagee seeking to stay waste which, it avers, will diminish the security of the mortgage of which it is trustee.

It may also be premised that since complainant occupies the position of a mortgagee, holding a mortgage in trust for the protection and security of bondholders, its position and its duty as such trustee cannot be affected by the fact that some of its directors are also directors in the Jersey City, Hoboken and Paterson Street Railway Company, or in the Public Service Corporation, or are stockholders of either company. If an impairment of the mortgage security is shown sufficient to require equitable relief for the protection of the bondholders, the complainant not only has the right, but it is its duty, to protect those for whom it holds the mortgage in trust.

Among the various matters pressed upon my consideration as-disclosing an impairment of the complainant’s security in the¡ nature of waste are the following:

First. It is claimed that the act of the defendants which is; complained of, and which will be hereafter more particularly described, will prevent the Jersey City, Hoboken and Paterson Street Railway Company, the owner of the property and franchises included in the mortgage, from extending its terminal facilities at Hoboken, as required by its present and prospective needs, and as necessary to preserve its traffic and profits.

Second. It is claimed that the defendants the Hoboken and Manhattan Railroad Company and the New York and Jersey Railroad Company are engaged in securing rights to construct a system of street railroads in Hudson county, to be connected with a terminus proposed to be made on lands covered by the mortgage, under contracts between the defendants, and which railroads, when so connected, will compete for the carriage of passengers with the railroads upon which complainant’s mortgage is secured.

Third. It is further claimed that the scheme and plan entered into by the defendants is impracticable, or cannot be put into operation without paralyzing, or rendering wholly' or partially useless, at least a part of the system of railroads on which complainant’s security depends.

The answering defendants, by their answer, deny that they are engaged in securing rights to construct street railroads to be connected with the terminus and their tunnel railroad, and also deny that their plans will destroy or tend to destroy the value of the terminal tract, or tend to diminish the security of complainant’s mortgage.

The facts upon which these questions are presented must be briefly stated. The mortgage of complainant covers a plot of ground in Hoboken which I will call the terminal plot. It is four-sided, but of irregular shape. On the west it bounds upon Hudson street for about two hundred feet; on the south it adjoins the Delaware, Lackawanna and Western Railroad Company’s land for about six hundred feet; on the east it adjoins the property of the Hoboken Eerry Company for i little over fifty feet, and on the north it adjoins lands which, on the maps presented on both sides, are marked as “Hudson Place,” for about six .hundred feet. Upon this terminal plot and along its south side, close to the Delaware, Lackawanna and Western Railroad Company’s land, the tracks of what I shall call the surface system of the Jersey City, Hoboken and Paterson Street Railway Company run .easterly for about its whole length, and then, turning by two loops, pass into Hudson Place, and so proceed westerly. One of the above-described loops is not only partly on Hudson Place, but also partly on the property of the Hoboken Ferry Company.

The tracks of what I shall call the elevated system of the Jersey City, Ploboken and Paterson Street Railway Company come from the west to the terminal plot, reaching it at present .upon the surface, and then run eastei'ly along it, and, by a loop partly on the terminal plot, but extending out into Hudson Place, return to the terminal plot and pass westwardly on its surface to Hudson street, where they begin to ascend to the elevation on which that line is built. It will, -therefore, be observed that at present the elevated system is upon the surface of the terminal plot. There are also upon its surface, in connection with that system, other tracks, called stub tracks, but they do not seem to be commonly or frequently used.

From this description it will be observed that the terminal plot covered by complainant’s mortgage does not include part of the loops, either of the surface system or of the elevated system. The loop that is within the property of the Ploboken Ferry Company seems to be affected by an agreement made between that company and the North Hudson County Railway Company, a former owner of the terminal plot, to the effect that in case of the erection by one of the parties of any viaduct or-structure upon the lands of the other, the occupancy thereof should be considered to be by parol license only, which may be revoked by the owner of the lands upon ninety days’ notice.

There is also in the case an agreement, dated September 1st, 1876, between the Hoboken Land and Improvement Company and the North Hudson County R ,uway Company which recites that the last-named company had built certain tracks over lands of the Hoboken Land and Improvement Company, on lands lying between two streets, one of which is claimed to be that now designated on the maps as Hudson Place. The description is so vague that I find it impossible to identify it from the evidence or maps. The agreement, however, seems to show that whatever land was intended, the Hoboken Land and Improvement Company claimed at that time that it was private property and not a public street, but it also shows that there was then in existence some right to use the same under an agreement previously entered into between the said companies, which agreement is not in the case.

As stated in the bill, and admitted by the answer, it appears that on the 8th of April, 190-1, the Jersey City, Hoboken and Paterson Street Bailway Company, with the consent and approval of the Public Service Corporation, executed an indenture which recites that the Jersey City, Hoboken and Paterson Street Bailway Company owns in fee the tract of land in question, and operates across a portion of it certain elevated railroad lines and certain railroad lines upon the surface, and that the Public Service Corporation controls said railroad lines and terminals, and other elevated and surface lines which it is now operating, and further recites that the New York and Jersey Bailroad Company is building a tunnel from New York to Jersey City, and the Hoboken and Manhattan Bailroad Company proposes to construct a tunnel railroad from a connection with the tunnel railroad of the New York and Jersey Bailroad Company to a' point in or near the tract of land in question, and the Jersey City, Hoboken and Paterson Street Bailway Company, with the consent and approval of the Public Service Corporation, thereby grants and leases for nine hundred and ninety-nine years unto the Hoboken and Manhattan Bailroad Company the easement and right to construct and operate its railway and terminal station, either upon the surface, or beneath the surface, or above, upon a described parcel of land which is included in the tract which I have called the terminal plot.

The lease does not include the whole of the terminal plot. It leaves a strip of fifteen feet in width along its south edge and a small portion on its east edge, next to the Hoboken Ferry Company’s land, upon which it is proposed that the surface tracks of the surface system shall hereafter continue to run, turning within the lines of the land reserved from the lease, by three loops, out into Hudson Place, upon the. surface. None of those three loops appears to impinge upon the land of the Hoboken Ferry Company. All the rest of the terminal plot is included in the lease, and without going further into detail, it is sufficient to say that the tunnel company acquired by this indenture the exclusive right to the whole surface of the plot leased, and all that is beneath the surface, subject to the right of the railway company to construct and maintain elevated tracks, which right is reserved to the railway company for the tracks of its elevated system only, keeping them at an elevation that will suffice to clear the cars of the tunnel company upon the surface. The parties agree by lease that the reconstruction of both surface and elevated tracks is to be done substantially as shown upon a map annexed thereto. The reconstructed surface tracks are shown thereon as above described. The reconstructed elevated tracks are shown as extending along the leased land in two lines; that for the eastbound traffic continues for some distance thereon and then bends to the south and enters upon the unleased strip of fifteen feet in width; it then turns to the north with four curves or loops having each a radius of forty feet, all of which loops enter upon the land marked Hudson Place, and continuing the same curve, the lines again enter upon the leased land, and joining, form the westbound track.

The lease contains provisions for substantial rent to be paid by the lessee, and stipulation whereby, after reciting that in order to give the tunnel company the possession and use of the leased track it will be necessary to relocate and reconstruct the railway company’s tracks, the tunnel company agrees to pay the actual net cost thereof.

This statement of the situation will tend, I trust, to make clear my conclusions upon the important matters submitted upon this motion.

In respect to the claim that the owner of the property and franchises upon which complainant’s mortgage rests, which owner I will call the railway company, .by its agreement (called a lease) with the companies, which I will call the tunnel companies, has debarred itself for nine hundred and ninety-nine 3rears from extending or enlarging its terminal facilities to. meet its present and prospective needs and preserve the traffic out. of which its profits must be expected, I conclude that a mortgagee is not entitled to an injunction against carrying out the agreement upon that ground. His mortgage is secured upon the property as it was when the mortgage was executed. As to improvements afterward to be made, á mortgagee may reasonably anticipate that the mortgagor or subsequent owner will use the premises in a way best adapted to promote his interests, and if any such permanent betterments are made, the mortgagee is benefited. But the mortgagee retained no right to require the mortgagor or any subsequent owner to improve the property, or to manage it in any particular way. A mortgagor is free to deal with the mortgaged premises according to his own views of his own interests, always provided that what he does will not materially impair the' value of the property as security for the mortgage, j

In Lhis case the railway company, which is the owner of the mortgaged property, with the assent of its largest stockholder, has voluntarily contracted to permit the tunnel companies, in consideration of an expenditure in the rearrangement of the terminal plot, which must be very large, and of rentals amounting to considerable sums, to occupy, for a period of nine hundred and ninety-nine years, the larger part of the terminal plot. It must be assumed that the railway company deemed it to its interest to make such an arrangement for the use of the terminal plot for the exchange of passengers proceeding to New York or coming from New York by the tunnels when completed. With the wisdom or unwisdom of that contract the mortgagee has no concern, unless the contract, if carried out, will impair the security of the mortgage.

¡ The second claim of complainant in support of the injunction presents a question of much greater importance and of corresponding difficulty. The charge of the bill is that the defendants are engaged in a project to construct a system of street railroads in Hudson county to be connected with the terminus which tire tunnel companies acquired under the so-called lease, which system of street railroads will compete with the railroads formerly belonging to the North Hudson County Railway Company, and which now belong to the Jersey City, Hoboken and Paterson Street Railway Company, and form a part of the security of complainant’s mortgage, whereby the income from those railroads will be diminished, and tbe mortgaged property and franchises will be depreciated in value. ■ This charge, supported by affidavits, was one of the grounds upon which the injunction which it is now sought to dissolve was allowed, j

It is unnecessary, but perhaps proper, to say that the injunction was not allowed upon any theory that this court can intervene to protect a corporation or an individual from competition in business. In the early stages of railroad building and of manufacturing enterprises dependent on water power it was indeed deemed to be for the interest of the state to foster such works by securing those engaging in them from competition, more or less extensively. But that policy has long been abandoned in favor of free competition, not only of individuals, but of corporations. This policy is now written in our constitution, recognized by our legislature and enforced by the courts, except when the act producing competition is one which violates some right or is contrary to some duty. The railway company, having voluntarily made the lease and contract, obviously cannot complain if the tunnel companies make use of the privileges which have thus been given to compete with them for the passenger traffic which affords the profit of the railway company. But it may be otherwise with respect to a mortgagee of such property and franchises, which are thus shared, as it were, with others who are competitors. When the rails of a street railway company, laid in a public highway under authority of law by a corporation having franchises to operate cars for the carriage of passengers thereon, were habitually and persistently used by a line of street coaches for the carriage of passengers in competition with the railway company, this court approved of an injunction that required the coach company to cease such constant and habitual use of the rails in competition with the traffic which the owners of the rails carried on. Citizens’ Coach Co. v. Camden Horse Railroad Co., 33 N. J. Eq. (6 Stew.) 267. In my judgment, it must necessarily follow that if the railway company in that case had made an agreement with the coach company to permit it to use its rails in the manner described, habitually and persistently, and in competition with the traffic of the railway company, while the railway company might be bound, yet a mortgagee of the property and franchises of the railway company might well assert that such conduct tended to depreciate the value of the mortgaged premises and franchises and to impair his security, and this whether or not the railway company acquired from the coach company a yearly rental which it conceived was adequate compensation for the use of the plant and for the injury done by competition with the traffic. In respect to such a contract the mortgagee might well say, “1 am entitled to my security as it is, and you have no right to impair it by contracts which affect not only the property which secures me, but the franchises which are necessary to make and retain the value of the property.”

This view is applicable, in my judgment, to the situation as it is presented by the bill. The terminal plot which I have described is part of the mortgaged plant on which the railway company, the present owner of the mortgaged premises, operates its passenger railways under franchises which the mortgagee also .holds as security. If the present owner has contracted to give the rival companies a part of the property to be used in competition with it for the traffic which gives it profits, I think the mortgagee may enjoin the carrying out of such a contract, because as made it tends directly to diminish his security. The only question is whether the case made by the bill is met by the denial in the answer of the defendants the tunnel companies.

By their answer the tunnel companies deny that they are engaged in securing rights to construct a system of railroads in the county of Hudson to be connected with said terminus. In this respect the answer is supported by the affidavit of Hr. McAdoo, the president of both tunnel companies. He thereby swears that it is not true that the tunnel companies are engaged in securing rights to construct a system of street railroads in Hudson county. But he connects his denial with the statement that a company called the Hudson Street Railroad Company has been formed to construct street railroads in Hudson county, and some of its routes are planned to connect with the defendants* tunnel railroad, and that the company (the Hudson Street Railroad Company) will in some of its routes compete with the railroads controlled by the Public Service Corporation. While he also states that the Hudson Street Railroad Company had not been formed when the lease was made, and is not controlled by the tunnel companies, but is a separate enterprise, he adds that the tunnel companies are seeking to make convenient connections with all street and other railroads in Hudson county.'

Among the matters presented by the rebutting affidavits is a slip taken from a newspaper published in Jersey City, containing questions addressed to the people of Hudson county and statements and promises made by the Hudson Street Railroad Company. It purports to be signed by the Hudson Street Railroad Company, by Mr. McAdoo, as president. ["Reading the affidavit of Mr. McAdoo by itself, however, I feel compelled to admit that it justifies the inference that there is a purpose on the part of the tunnel companies to make use of the plant acquired by the so-called lease, and to permit the use of the underground terminus proposed to be formed therein, and the way thereunder to the tunnels when completed, by companies operating street railways in competition for the traffic which the railway now enjoys.

However beneficial to the public such competition may be, a mortgagee may well object to the devotion of a part of the plant which is his security, and that part the key of the system, to the use of other companies whose competition must affect the revenues out of which his interest, and eventually his principal, must come. Reading the answer of the tunnel companies and the affidavit of Mr. McAdoo, I am not prepared to say that the charge of the bill in this respect is met. j

i Lastly is to be considered the claim of complainant that the rearrangement of the terminal plot in the manner permitted by the so-called lease, and indicated substantially by the map annexed thereto, deprives the railway company of the use of the surface thereof for its elevated system, and provides for that system no other mode of utilization except one that involves the use of land to which the railway company has no title, and upon which, so far as this case shows, it'has no right to construct an elevated structure for street railroadsj It is a conceded fact that the elevation of the elevated system over this terminal plot can only be successful by the use of the suggested loops, which necessarily extend over and require a support in Hudson Place. It is true that the leased premises may be utilized by stub tracks for the elevated system, but it is apparent that such tracks will not be sufficient for its present traffic, nor for the performance of its public duty in the carriage of passengers.

Whether the land within the strip marked Hudson Place is mere private property unaffected by any public right of use, or whether it has become a public highway in which the public has rights, is not discoverable from the ease presented. The indications point to its being a public street. It is true that there is no proof of laying it out for public use, or of any dedication by the owner, or of any acceptance by the corporate authorities of Hoboken. But public highways may result from long-continued use of land by the public in the manner in which public highways are used, and in the case presented there appears to have been a user by the public, and along it the railway company has laid and maintained its rails and run its cars in the carriage of passengers for a long time.

• But if Hudson Place is private property, can the railway company acquire a right to erect thereon an elevated'structure for the loops of its elevated lines, as contemplated by the so-called lease? It has, undoubtedly, all the rights and powers that the companies had which it has acquired by merger or otherwise. One of the companies whose rights and powers this railway company now possesses was the Hoboken and Weehawken Horse Eailroad Company, which was incorporated by an act approved February 1st, 1860. P. L. I860 ¶. 68. That company was given the power of taking land by condemnation. The grant is contained in section. 7 of the act. But the same section requires the company to determine the route and location of the railroad and to deposit a survey with the secretary of state before entering upon the lands or laying its rails, &c. In my judgment, the power of condemnation conferred on the Hoboken and Weehawken Horse Eailroad Company cannot now be exercised in condemning additional land at the place in question. The terminus of the road has been fixed, as the act permits, “at or near the ferry gates,” and the route of the road has been for many years determined, built upon and operated. There is no power found in the act to extend or enlarge, or to use the power of eminent domain for extension. Furthermore, the power was given for the purpose of a surface and not an elevated road.

If it be assumed that I am right in attributing to Hudson Place the qualities of a public highway, the right to use it for the erection and maintenance of the supports of an elevated railroad can only be acquired under the provisions of the “Act to enable street car or horse railroad companies to provide better accommodation to the public by using what is now known as the cable system for motive power on elevated roads,” approved March 26th, 1886 (P. L. í¡886 p. W6), as amended by a supplement thereto approved April 6th, 1888. P. L. .1888 p. 888. Without going into unnecessary details, it is sufficient to say that by these legislative provisions no elevated road can be constructed on a street unless (1) by the consent in writing of the owners of one-half of the property fronting on such street; (2) all damage, if any, to property fronting on such street, the owners of which have not given their consent, shall first be ascertained and paid, and (3) the consent of the municipal authorities be first obtained.

’ It will be observed, then, that if the plan for the rearrangement of the terminal plot agreed upon by the owners thereof with the tunnel companies be carried out, the railway company now using the same under franchises, to accommodate the tracks of its elevated system, may be wholly prevented from continuing that traffic thereon in the contemplated mode, i. e., by loops. {If Hudson Place is mere private property, no power to condemn appears; if it is a public highway, the right to use it for the elevated tracks may be prevented by the failure to obtain the consents requisite to their erection thereon. It is true that if the railway company finds itself unable to carry out the plan for these reasons, it may still bring its passengers and discharge them at a point before the terminal plot is reached, or it may deliver them upon the terminal plot at an elevation and conduct the business by means of stub tracks; but it is conceded, and is entirely obvious, that the traffic of the railway company, by either plan, would be seriously affected, to its injury. Injury to the traffic involves, of course, diminution of profits, and therefore diminution of the power to pay the interest or the principal of the large encumbrances upon this property, 'j

(""Relief against injury to the inheritance, winch is called waste, when sought by those entitled at common law, or under the statutes of Marlbridge and Gloucester (Moore v. Townshend, 33 N. J. Law (4. Vr.) 284, may be demanded for reasons which will not justify relief for a similar injury done or threatened by a mortgagor. In the latter case it is not for injury done to the inheritance that the mortgagee may intervene, but for injury done or threatened to his security. A mortgagor in possession is the owner of the estate, and may exercise all rights of ownership, and even commit waste, provided he does not dimmish the security or render it insufficient. Kerr Inj. § 262; Tate v. Field, 57 N. J. Eq. (12 Dick.) 632. For an injury to his security by waste, a mortgagee may have an action on the case for damages. Jackson v. Turrell, 39 N. J. Law (10 Vr.) 329; Schalk v. Kingsley, 42 N. J. Law (13 Vr.) 32. The mortgagee may invoke the restraining power of a court of equity to prevent injury to his security by waste being actually committed or threatened. Kerr Inj. § 235; 8 Pom. Eq. Jur. 18k5. For trivial acts of waste the courts will not interfere, but when the mortgagor’s security is upon the plant and franchises of a corporation engaged in the quasi public business of carrying passengers by means of the mortgaged premises, and when it is made to appear that a course of conduct is threatened by the mortgagor, and others with the mortgagor’s connivance and consent, and about to be pursued, which, it may reasonably be inferred, may result in preventing or diminishing the power to make profitable use of the plant under the franchises, a case is made which, in my judgment, justifies the intervention of the mortgagee and requires this court to intervene to protect his interests. It is unnecessary t.o add that a trustee holding a mortgage in trust for bondholders is entitled to similar relief.

But it is urged in behalf of the defendants that no injunction ought to issue, because it is shown by competent evidence that complainant’s mortgage covers the whole railway system of the railway company, and that if the line which I have called the elevated S3rstem were wholly eliminated, the remaining several lines unaffected by the so-called lease, at present valuations, are a sufficient security both for the mortgage held by complainant and the two mortgages which are prior thereto. In the same connection it is further urged that the complainant, by the contract between the railway company and the tunnel companies, which requires the latter to expend a vast amount of money in the rearrangement of the terminal plot, and to make annual payments of large sums as rental, not only does hot have its security diminished by the proposed rearrangement, but that the security is actually increased thereby. The claim is that the waste, if it be such, is of the kind which the old cases called “meliorating waste,” and that the complainant’s security is not diminished, or even imperilled.

With respect to the claim that the remaining mortgaged premises afford, and will afford, ample security for complainant’s mortgage, it is obvious that the claim rests not only upon the present value of the remaining portions, but upon the prospective value thereof, if the rearrangement of the terminal plot is made and operates to prevent or diminish the use of the elevated system thereon. The value of property of this sort is not easy to be ascertained. Resort is necessarily had to expert evidence, and in this case affidavits are presented, on both sides, of persons who claim to have acquired experience in respect to such value. Whether the affidavits disclose experience which justifies reliance upon their estimates of value or not, it is apparent that there is a decided difference of opinion as to the relations of the other portions of the mortgaged railways with that affected by the question discussed in this case, and also with respect to their present value and the effect which will be produced upon them by the carrying out of the proposed plan. I am unable to find proof that if the proposed plan is carried out, the security of complainant’s mortgage will not be diminished.

With respect to the claim that what is proposed to be done upon the terminal plot will be a betterment which will make up .for any suggested diminution, it is obvious that the claim rests upon the success of the tunnel companies in establishing a transit to New .York by way of tunnels. Whatever may be'the prospect of success in this enterprise, I think that a mortgagee may object to losing, in whole or in part, a security with which he is satisfied, and accepting in its place a security dependent upon contingencies, and which he is not required to accept on the opinion of others.

It is Yfirther urged on behalf of defendants that the relief by preliminary injunction, even though otherwise appropriate, should not be granted, because the complainant delayed in presenting its-objection to the carrying out of the plan devised between the owner and the tunnel companies, and during that delay the tunnel companies expended money upon the construction of its tunnels, which expenditure would not otherwise have been made.

It appears by the affidavit of Mr. McAdoo that after April 8th, 1904, the date of the so-called lease, the tunnel companies expended money, the amount of which is not stated, in acquiring a right of way for their tunnel under the yard tracks and main line of the Delaware, Lackawanna and Western Railroad Company, and that the tunnel companies prosecuted the construction of their tunnels. Whether the complainant had notice of the execution of the so-c"alled lease because, as claimed, some of its directors were also directors of the Jersey City, Hoboken and Paterson Street Railway Company, and whether such notice would cast a burden upon a trustee mortgagee to immediately act for the protection of its bondholders, are questions which I do not think need be answered. „ If it be assumed that the complainant had notice of the so-called lease, it was not, in my judgment, under any obligation to protect its cestui que trustent or to attack the tunnel companies until the latter entered upon the mortgaged premises and commenced to carry out the rearrangement of the terminal plot, of which complaint is made. It appears that the bill was filed very shortly after excavations were begun. 0

The bill discloses that the bonds secured by the mortgage of which complainant has become trustee became due on May 1st, 1904, and it asserts that the payment thereof was extended for the period of twenty years. The answer of the moving defendants sets up that they became, by virtue of the lease and contract of April 8th, 1904, entitled to redeem the mortgage at its maturity on May 8th, 1904; that they had no notice of the agreement to extend the bonds secured thereby, and they tender themselves ready to take up and pay any and all of the bonds on demand. They contest the right of complainant to prosecute this suit for the protection of the bondholders whose bonds defendants claim the right and are ready to pay. There is no cross-bill or answer in the nature of a cross-bill seeking to redeem the mortgage of complainant. There is no offer to pay into court the sum due on the bonds which matured May 1st, 1904. No tender of that sum is alleged.

A tenant for years has a right to redeem. Hamilton v. Dobbs, 19 N. J. Eq. (4 C. E. Gr.) 227. But there is no right to redeem before the mortgage is due. Jones Mort. § 1052. Complainant contends that this mortgage is not now due, and will not become due until the expiration of twenty years from May 1st, 1904. Defendants insist that it is now redeemable because these defendants did not consent to its extension.

I do not deem it necessary to determine the questions thus raised. The bonds secured by the mortgage have not been paid. The holders are entitle^ to the security of the mortgage until paid. Complainant, as trustee, is bound to prevent the impairment of the security. If defendants desire to pay the bonds, they can raise the question of their right to do so by tender and by a bill to redeem. Until there is payment in one or the other mode, the complainant’s duty to protect the security remains.

The result of my examination leads me to the conclusion that the injunction should be retained. The motion to dissolve is denied.


source: Caselaw Access Project

author: Magie, Chancellor.

license: Public Domain

text:
    William H. Woglom v. Anna M. Kant et al.
    [Decided March. 12th, 1906.]
    A bill which states that a daughter agreed with one S. that he should acquire for her a tax title, under a sale of lands under the Martin act, and the purchase by the municipality, in which lands her mother had an estate in remainder in the extent of five-sixths thereof, and that S. served upon the mother a notice to redeem, which the act required before a tax deed could be demanded, in the presence of the daughter, who concealed from her mother the nature and effect of the notice, the mother being eighty-eight years old, deaf and infirm, yet having means at her disposal, if employed, to redeem from the sale, a case is made out for some equitable relief within the prayers of the bill, which include, substantially, a prayer to prohibit the daughter from setting up the tax title acquired from S., and to compel her to submit to a redemption of the lands upon being paid whatever she has expended therefor.
    On demurrer to amended bill.

      Mr. James E. Howell, for the demurrant.

      Mr. John W. Beehnan, for the complainant.
   Magie, Chancellor.

The bill first filed in this cause was -found to be defective upon demurrer. The opinion of the court is reported in ¡6& N. J. Eq. AS9.

The scope and purpose of that bill were stated with particularity in that opinion. It is only necessary now to say that the complainant sought a partition of lands to which he claimed title as an heir-at-law of his mother and his aunt. His bill set forth that during their lifetime the lands, partition of which he sought, had been sold for taxes, and the tax title thereto had been acquired by Anna M. Kant, a sister of complainant and one of the heirs-at-law of his mother and aunt. That tax title complainant sought to avoid, in whole or in part, and so entitle himself to partition. The ground on which complainant sought relief against the tax title was that it had been acquired by Mrs. Kant by fraud. Upon demurrer it was held that the bill did not state facts to support a charge of fraud, or to justify relief on that ground as against the tax title. As the bill set forth a title excluding that claimed by the complainant and failed to support the relief against that title, the whole bill consequently failed.

Complainant thereafter filed' an amended bill, which has been met by a demurrer. It contains all the statements of the original bill and some additional statements. Complainant now urges that the bill, as thus amended, is not open to objection, but that the statements, if proved, will justify some relief under the prayer, which is in the alternative, viz., either by a decree avoiding the claim of Mrs. Kant, or a decree that her title is subject to redemption by payment of what she expended in acquiring it.

It is first claimed that the bill now discloses by apt statements the fraud of Mrs. Kant on which such relief may be supported.

The brief for complainant repeats the claim previously made that Mrs. Kant, by merely acquiring a tax title to land of her mother and her aunt, committed a fraud upon those whom it calls her co-expectant heirs-at-law, meaning those upon whom the estate of the mother and aunt would fall if they died intestate. As I before held, I deem this claim wholly inadmissible. When Mrs. Kant acquired the tax title she obtained nothing to which any expectant heir had any right or any expectancy. What she acquired was a right superior to that of the ancestor. The doctrines respecting “catching bargains,” obtained from needy heirs-at-law, are wholly inapplicable. So far as the bill discloses, Mrs. Kant owed no duty to complainant or the other co-expectant heirs, and the bill cannot be supported on any theory that her acquisition of'the tax title was a fraud on them..

Nor am I able to admit that the purchase by a child, sui juris, of a tax title to lands of a parent is of itself fraudulent. Such a purchase may be fraudulent if it has been acquired in breach of some duty owed to the parent, and then the child must submit to redemption.

Whether any duty from Mrs. Kant to her mother and aunt is disclosed by the amended bill is the real question. As the original bill was deemed not to disclose such duty, the question is whether the added statements supply what was lacking. The aunt was the owner in fee of an undivided one-sixth of the lands in question, and had an estate for life in the other five-sixths thereof. It was therefore her duty to pay the taxes. I discover nothing in the statement of the amended bill to justify a finding that Mrs. Kant owed a duty to her aunt respecting the tax title, or that her acquisition of the tax title was fraudulent as to her.

With respect to the interest in the lands held by the mother of Mrs. Kant and the complainant, the circumstances disclosed are different. The statements of the original bill were found to be vague and unsatisfactory; the added statements in the amended bill arc little less vague. ' But after repeated perusals, I think it can be found that the bill now states the following facts: That a sale of the lands for taxes, which ought to have been paid by the aunt, had been made to the city of Perth Ambojq which anyone interested might have redeemed the lands from; that Mrs. Kant agreed with one Seaman that he should acquire the title from the city for her benefit; that to perfect such a title under the Martin act, notice was necessary, after which the purchaser could, when six months had elapsed without redemption, obtain a title in fee; that Seaman acquired an assignment of the city’s certificate of sale, and thereafter gave notice to Mrs. Woglom, in the presence of Mrs. Kant; that Mrs. Woglom then lived with Mrs. Kant; was eighty-eight years old, deaf, infirm and helpless, and in no condition to understand its meaning, and that Mrs. Kant concealed from her the meaning of the notice, although the mother had means to redeem the lands from the sale, at least by raising a loan thereon, the same being free from encumbrance and worth over $15,000.

Upon these facts the bill charges that Mrs. Kant held a “confidential and fiduciary” relation to her mother. I am unable to discover any ground in the facts stated for the charge that there existed between the mother and daughter any trust or fiduciary relation. Nor do the facts indicate any relation of confidence in respect to business or property. But considering that her mother, a member of Mrs. Kant’s family, of great age and infirmity, had served upon her, in Mrs. Kant’s presence, a notice to redeem lands, of which the mother had a remainder in five-sixths thereof, from a tax sale, and that the notice, if redemption did not follow, would enable Seaman to acquire a title in fee for her, I think a duty arose on the part of Mrs. Kant not to conceal from her mother the meaning and effect of the notice,, but, on the contrary, to disclose to the mother the intent of the notice, to the end that the mother, out of the means she is said to have had, might redeem from the tax sale and preserve her title.

If the mother had discovered the concealment of the effect of the notice, and that Mrs. Kant had afterwards acquired title, I think she would have had an equitable right of action to compel Mrs. Kant to permit her mother to redeem the land and to enjoin her from asserting any right in the lands on the footing of the failure to redeem.

Upon the bill, as now framed, I think an equitable right of action for the same relief may be supported by any of her heirs-at-law. The demurrer, for want of equity, cannot be sustained.

The theory of the bill originally filed, and one theory of this bill as amended in the manner hereinbefore spoken of, was that it was incumbent upon the complainant to avoid the tax title which the bill expressly asserts had been acquired by Mrs. Kant. To thus dispose of the tax title, a charge of fraud was made, at first ineffectively, and now by an amendment, sufficient to support the relief claimed. But one of the amendments to the bill sets up another theory, founded upon an inconsistent statement, with which it is difficult to deal. According to this statement, the tax title acquired by the city was never lawfully transferred to Seaman, and if so, Mrs. Kant acquired no title by her deed froiñ Seaman and his wife, set out in the bill.

The claim in this respect that the complainant has made, in brief, is this: That although the city, having bought in the lands sold for taxes and taken a certificate of sale made under the supplement to the Martin act, approved April 16th, 1.891 (3 Gen. Stat. p. 338-5), might, by its common council, sell and assign the certificate of sale, yet that by a subsequent supplement to the Martin act, approved March 30th, 1896, it was provided that when any lands had been bought by the city under the act, the mayor, city clerk and.comptroller (there being such officers in Perth Amboy) might, at any time before the delivery of the deed to the city, sell at private sale and assign to any person the certificate of sale. This supplement took effect immediately, and a month or two before the transfer from the city to Seaman, stated in the bill, and the bill states that the certificate in this case was not assigned to Seaman by those officers.

This new theory presents a question of title which ought to be settled at law before a court of equity will proceed with a partition. Whether this theory, if inconsistent with the other theory on which complainant puts his case, would not justify a demurrer on the ground of duplicity need not be decided. The demurrer does not, by any of its causes stated, make any such claim. Nor does any cause of demurrer indicate that this new statement was in the mind of the demurrant, except the third cause, which claims that the city of Perth Amboy ought to be a defendant, and that the bill is demurrable because that municipality has not been brought into the case. This indicates a misconception of the situation. If the statements of the bill respecting the failure of Seaman to acquire a good title by his assignment .of the certificate of sale from the city are proved, the result must be that the city will be held never to have parted with the title it obtained by its sale. If Seaman paid the city all that the sale secured under the act, and if Mrs. Kant acquired Seaman’s rights, there may be an equity in her to require the city to hold its tax title for her security. But the city, being the owner of a paramount lien, need not be a party to a partition.

The bill must, therefore, be answered, but if the complainant fails to establish his charges of fraud, the court would probably be obliged to dismiss the bill until the legal title has been settled by an action at law, or to hold the bill while such an action may be brought and disposed of.


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    Charles A. Reed, executor, &c., v. Anna B. Longstreet et al.
    [Submitted January 12th, 1906.
    Decided March 27th, 1906.]
    A testator, by his will, left his farm and the residue of his property in trust, directing that the income, rents and profits should be divided between his two daughters for life, with remainder, at their respective deaths, to their children, &c. By the will he empowered the trustee, if a mortgage which encumbered the farm was called in, to mortgage the farm to an amount not exceeding the encumbrance. He also empowered him to sell all his Veal estate, but with a proviso that no sale of the farm should be made during the lifetime of either of the daughters without their consent, nor unless it is necessary to pay debts. The farm produces an income over the interest of the mortgage which encumbered it at testator’s death and the necessary expenses.—Held, (1) that the testator intended that such income should be divided between his daughters, and that there is no duty imposed on the trustee to accumulate the income for the ultimate payment of the mortgage; (2) that a comparison of the provisions of the will sufficiently indicates that the testator used the word “nor-,” in the proviso to the grant of power to sell, in the sense of “or.”

      Messrs. Reeci & Goddington, for the complainant.
   Magie, Chancellor.

The complainant in this canse is the executor and trustee under the will of the late William I. Conover of the county of Monmouth, and he seeks the direction of this court in the performance of his duties in those relations.

The direction of the court is deemed necessary because of doubts conceived by the trustee, or suggested by parties in interest, or which may possibly be raised at some future time'by parties not now in being, and the court is asked to- construe the will and determine therefrom what power the trustee has, and what duty devolves upon him, in two respects.

To make clear the conclusions I have reached, it will be necessary only to state that the will contains a devise to complainant, "and to any successor in the trust appointed by the court, of a farm on which the testator lived, and all the rest, residue and remainder of his estate, in trust (1) that he hold it during the lifetime of testator’s daughter, Marion Alma Baird, and pay to her, and permit her to receive, the net income, rents, issues and profits of.one-half of said residue, and, after the decease of Marion, the testator devises one-half of the farm and one-half of the residue and remainder, to any child or children, or descendants of any child or children of Marion; and (2) in a like trust for the testator’s daughter, Anna Bowne Longstreet. Provision is also made in the will respecting the devolution of the trust fund in case of the death of either daughter, or both daughters, without leaving children.

By the twelfth clause of the will, testator authorized and empowered the trustee, if he should find it necessary to' pay off the mortgage existing on the farm at testator’s death, to mortgage the farm as fully and absolutely as testator could do if living, to an amount not exceeding the mortgage encumbrance thereon at the time of testator’s death, either renewing such mortgage or any subsequent mortgage which may be given to pay and satisfy the same.

By the fourteenth clause, testator empowers his executor to sell all his real estate, at public or private sale, with proviso that no sale shall be made of his farm during the lifetime of either of testator’s daughters, without their consent, nor unless it is necessary to pay his debts. He provides that the net proceeds of any sale are to be invested by tire executor and held on the trusts created by the will.

The complainant has made parties defendant the daughters of the testator named in his will. They have failed to answer, although they appeared in the cause, by a solicitor of the court. Complainant has also made parties the living children of those daughters. They are all infants, and have answered by a guardian ad litem,■ submitting themselves to the judgment of the court. Under a rule for proofs testimony has been taken.

There are two points in which complainant deems there is doubt which justifies him in asking the direction of this court: (1) what does his duty require him to do with the income of the farm devised to him in trust under the circumstances disclosed by the proofs,-and (2) what are h-is powers in respect to- a sale of the farm.

The situation disclosed by tile proofs is this •: The testator died seized of the farm, and another tract of real estate of comparatively small value, and leaving some personal property. Out of the proceeds of the personal property, and the sale of the tract of land not included in the farm, and, as I understand the evidence, by the use of some of th¿ income of the farm, all the debts of the testator have been paid, except a debt secured by a mortgage upon the farm. The mortgage secures the' sum of $4,500, and the interest thereon has been paid by complainant. The farm is now rented by complainant at the annual rent of $900. The interest on the mortgage, the annual taxes, premiums on insurance, usual repairs, &e., amount to about $300. A net income of about $600 is thus left.

Complainant is in doubt whether he may divide that income between the two daughters of the testator, or whether it is his duty to accumulate it so as to eventually pay off the mortgage. The mortgage is not now demanded, the mortgagee being satisfied with the security.

As I read the will, the testator contemplated leaving the farm encumbered by mortgage at his death. It is clear that he did not contemplate that his executor would be able to- pay off that mortgage from the personal property, and so- he expressly provided that the trustee, if the mortgage was called in, could mortgage the farm and keep an existing encumbrance thereon provided it did not exceed the amount of the mortgage which encumbered it- at the time of the testator’s death. When this situation is considered, it seems to me obvious that the intent of the testator was to give the benefit to his two daughters of the present income from time to time, arising from the equity of redemption, and that it was not his intention that such income should be accumulated and his daughters left without its support until the accumulation produced enough to pay off the mortgage. This intent is rendered manifest by the provisions -of the will empowering the trustee to make sale of the farm and hold the net proceeds of the sale upon the same trusts. Such a sale would produce the value of the equity of redemption and what was thus produced was to be held on the trusts. It could not have been his intent that the income of the proceeds, when invested, should be accumulated until it, when added to the principal, should, equal the entire value of the farm. The testator did not intend to benefit his daughters’ children or descendants, born or unborn, at the expense of his daughters, his beneficiaries for life.

• The result is that I think the trustee should divide this income from the farm between the daughters according to the terms of the trust, after he has reserved therefrom what, in his judgment, is sufficient to satisfy the annual claims thereon.

Complainant further seeks direction as to his duty respecting the sale of the farm under the power of sale contained in the will, which is affected by a proviso above stated.

Complainant thinks that there is doubt whether he has power to sell the farm, even with the consent of testator’s daughters, unless the sale is also necessary in order to pay testator’s debts.

If the fourteenth clause of the will be literally read, complainant has no power to sell except to pay debts, and with the consent of the daughters, if living. To empower a trustee to sell to pay debts and to limit that power by requiring his sale to be consented to by beneficiaries, is a provision SO' unusual and impracticable as to lead to doubt whether, as literally read, it fairly expresses testator’s intent. When it is considered that testator contemplated leaving the farm encumbered, and that his other property was barely sufficient to pay his debts other than the mortgage, I think it is sufficiently apparent that testator’s.purpose was to provide for a sale if necessary to pay debts other than the mortgage debt. Such a sale would be required by law, and could be made without any consent. The testator meant to give a power of sale to pay such debts, and could not have intended to limit that power. Reading the whole will, I think it is plain that testator has used the conjunction “nor” in the fourteenth clause in the sense of “or.” It falls, in my judgment, within the rule of construction which will attribute a disjunctive force to a conjunctive word, and vice versa, and fhe evidence of intent is so unmistakable as to require tbe application of a similar doctrine.

It follows that the power of sale may be exercised on the consent of the beneficiaries for life and without reference to the necessity to sell to pay debts.

A decree will be made in conformity with this opinion.


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    Charles W. Manning v. William Jagels et al.
    [Submitted October 30th, 1905.
    Decided March 27th, 1906.]
    1. A statement in a bill, that complainant recovered against a defendant a judgment at law and issued thereon an execution, which was returned wholly unsatisfied, is a sufficient allegation of an unsatisfied judgment, whereon the legal remedy has been exhausted.
    2. What force should be conceded to statements of facts in a bill, made upon information and belief, need not be considered when the bill contains statements not thus limited, which, if established by proof, would entitle complainant to the relief sought.
    On demurrer to bill.

      Mr. William II. Spear, for the defendants.

      Mr. Henry 3. Morris, for the complainant.
   Magie, Chancellor.

The bill in this cause is designed to reach property of the defendant Lasher and enforce thereon' a judgment of the complainant against that defendant.

The demurrer challenges the bill on the ground that it does not aver facts with that degree of certainty and directness which ■the rules of- pleading require, so as to entitle complainant to the relief he seeks.

It is first' contended that the bill does not disclose any present ■right on the part of the complainant. The allegation of the bill is that the complainant recovered a judgment in the supreme court against the defendant Lasher, and caused a writ of fieri facias de bonis et terms to be sued out of that court, which writ the sheriff of Hudson county has returned wholly unsatisfied. The contention of counsel is that the complainant has not averred that the judgment remains unsatisfied, or that there is no other property of the judgment debtor out of which the debt can be made. This criticism I think unfounded. The allegation of the recovery of the judgment, the issuance of execution and its return unsatisfied, present a state of facts presumed to continue until the contrary is made to appear. A statement that execution has been returned unsatisfied (on the judgment includes the lack of other property to be levied on and the exhaustion by the judgment creditor of his legal remedy. This mode of stating the claim of a judgment creditor has been adopted or approved in several cases. Smith v. Wood, 42 N. J. Eq. (15 Stew.) 563; Francis v. Lawrence, 48 N. J. Eq. (3 Dick.) 508; Randolph v. Daly, 16 N. J. Eq. (1 C. E. Gr.) 313. The precedent given by Colonel Dickinson also gives this mode of stating a judgment creditor’s claim. Dick. Ch. Free. 512. This objection to the bill cannot prevail.

It is next contended that the hill is defective on the ground that the complainant states the facts on which he seeks relief, not positively and directly, but thus: “Your orator further shows that upon inquiry he is informed and believes,” &c.

It is unnecessary to determine whether this bill, if it contained no statements of facts except such as are distinctly averred to be made because complainant has been informed and believes them to be true, could be supported against a demurrer for want of equitjr, for not all the statements of this bill are so limited. It is possible to discover allegations that seem to be of facts without any such limitations, and to the following effect, viz., that on a certain day the defendant Lasher purchased, in the name of his wife, -a lot -of land in Weehawken, paid for the same with, moneys of his own, and procured the title thereto to be made in the name of his wife, Julia V. Lasher; that Lasher is building a dwelling-house on that land with lumber purchased and paid for by him; that afterward Julia V. Lasher and her husband conveyed that land to the defendant Jagels for the nominal consideration of one dollar, and that notwithstanding the conveyance to Jagels, said Lasher has purchased materials to complete the building and paid for them by his own money, whereupon the charge is made that Jagels holds the title for Lasher, and that complainant’s judgment ought to be enforced thereon.

The bill, as a specimen of equity pleading, is open to serious criticism, but upon the allegations above set forth, I think a demurrer cannot be sustained. It will therefore be overruled.


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    Leo M. Morris v. Catherine A. Le Bel et al.
    [Decided March 27th, 1906.]
    1. The act .‘‘to pass estates in fee by certain devises in wills and testaments and to limit estates in tail,” passed August 27th, 1784 (3 Gen. Stat. p. 8768), was not designed to prevent a testator from devising an estate for life in lands, either by express words or by necessary implication, unless he also made a further devise of such lands after the decease of the devisee for life. The legislative intent was to compel the construction of devises which omitted the words “heirs and assigns” as passing an estate in fee except in two cases—first, where the will contained expressions from which it appeared that the devise was intended only to convey an estate for life; and second, when testator made no further devise after the death of the first devisee. Although the act connects the description of these two classes of cases by the conjunction “and,” the plain intent requires “and” to be read as “or,” and the statutory construction cannot be made if either case appears. 2. A devise of lands to A. upon condition that he should not encumber it nor have the power to sell it, but should have the power to devise it by his last will and testament—Held, to exhibit an intent to convey only an estate for life.
    On final hearing on bill and answer.

      Mr. John II. Reynolds, for the complainant.

      Mr. Daniel L. Campbell, for the defendants.
   Magie, Chancellor.

Complainant’s bill is filed under the act entitled “An act to compel the determination of claims to real estate in certain cases and to quiet the title to the same.” 8 Gen. Stat. p. 8186. The relief he seeks relates to certain houses and lots in the city of Paterson, of which he claims to be the owner in fee-simple, under the provisions of the last will and testament of his grandfather, Michael Morris, senior. The bill states facts in respect to complainant’s peaceable possession; the denial of his title by defendants, and the non-pendency of any suit to test the validity of complainant’s claim, sufficient to' give this court jurisdiction under the act.

The defendants have filed a joint and several answer admitting the jurisdictional facts, and specifying and setting forth in the manner required by the act their claim to said houses and lots, which is that, under the true construction of the will of Michael Morris, senior, complainant did not acquire a title in fee, but only an estate for life, with a limited power to dispose thereof by will, and that if complainant should die without disposing of the same by will, defendants would have an interest in said lands, either under the provisions of said will or as heirs-at-law of the testator.

The cause has been brought to hearing on bill and answer, and the question presented involves the construction of certain parts of said will.

Whenever the equitable relief sought in an action involves the construction of a testamentary instrument, this court will construe the same so far as requisite to that relief. Hoagland v. Cooper, 65 N. J. Eq. (20 Dick.) 407. In suits under the Quiet Title act, such construction may be necessary. Feit v. Richardson, N. J. Eq. (19 Dick.) 16.

There are two clauses in the will which must be considered and construed. The first is clause 19, which is in these words:

“Nineteenth. I give and devise to my grandson, Leo Michael Morris, two houses and one lot of land, situate at number one hundred and thirty-six Water street, Paterson, New Jersey; I give and devise to my granddaughter, Josié Morris, a house and lot of land situate at number twenty-six Marshall street, Paterson, New Jersey, and two houses and one lot of land situate at number twenty-one Marshall street, Paterson, New Jersey; I give and devise to my granddaughter, Annie Morris, two houses and two lots of land, situate on North Straight street, Paterson, New Jersey, upon the following condition, that is to say, that they are in no way to encumber the said houses and lots of land, nor shall they have the power to sell any of them, but they shall have the power to devise the said houses and lots of land in their last will and testaments to anyone they may choose, and I do further order that the rents, issues and profits of all of the said houses shall be paid to my wife, Anistatia Morris, during her life, after deducting the amount paid for taxes, insurance, water rents and such repairs as are necessary to Keep the said buildings in proper repair.”

Complainant is the Leo Michael Morris therein named. The widow of testator, to whom the rents were directed to be paid • for life, has died.

The'other clause is No. 22. By it the testator devised another house and lot to his son, Michael J. Morris, for life, and on his death (he is now dead), to the complainant, then adding these words: “But he shall not encumber the same or sell it, but he may, in his last will and testament, devise the said property to anyone he may choose.”

The clauses are substantially alike. In each, so far as complainant is concerned, the devises are to him by name, without the addition of the words “heirs and assigns” or “heirs and assigns forever,” anciently thought to be necessary to the passing of a title in fee-simple. In clause 19 testator attempts a limitation or prohibition against encumbering the property devised, and adds thereto- the declaration that the devisee should not have power to sell the same, but should have power to devise by will. The supposed restriction in clause 22 is less extended, but it is substantially the same.

Since the passage of the act entitled “An act to pass estates in fee by certain devises in wills and testaments, and to limit estates in tail,” passed August 27th, 1784 _ (3 Gen. Slat. p. 8763), a devise which omits the words “heirs and assigns” or “heirs and assigns forever” must be construed and adjudged in all courts to pass an estate in fee-simple to the devisees, unless there are expressions contained in the will whereby it appears that the devise was intended to convey only an estate for life, and no further devise be made of the devised premises after the decease of the first devisee.

The devise to complainant must be so construed, unless the will discloses a situation which forbids the application of the act.

It must be conceded that there is contained in the will no express devise over, after the death of the complainant, of any of the land devised to him. The contention of defendants is that the estate therein which would remain undisposed of by the devise, if complainant should die without exercising the power to devise by will, passes'by a clause in the will in the nature of a residuary disposition.

Where a devise of the same land is expressly made, to take effect after the death of the first devisee, it is impossible to doubt that the intent of the testator was to make the interest of the first devisee a mere life estate. Whether a residuary devise which may operate upon estates otherwise undisposed of on the happening of a contingency discloses such an intent on the part of the testator, or falls within the language of this part of the act as a further devise of the devised premises after the decease of the first devisee, may be questioned. But an examination of the whole will leaves it open to serious question whether it contains any devise of the lands devised to complainant, to take effect after complainant’s death in case he made no exercise of his power to devise.

Testator was evidently a man of substance, and the owner of many houses and lots and of considerable personal property. By. his will he made many legacies. He also devised to many persons houses and lots. All such devises were made with the same prohibition against sale or encumbrance and with the same peiv mission to devise by will as appears in clauses 19 and 22.

By clause 30, testator gave Ms executors full power to sell “all the residue of my lands.” This evidently excluded the lands which had been dealt with in the previous clauses, and seems to indicate testator’s belief that they had been wholly disposed of thereby. Then by clause 31, testator ordered that after Ms executors had disposed of his real estate as directed, and paid legacies and bequests, “the remainder of my property and estate be given and divided among” certain persons named. Complainant and others who had devises with the restrictions under discussion are expressly named in that clause. On the theory of defendants that complainant only acquired an esfate for life, with power of disposition by will, I cannot discover any intent of testator that, upon complainant failing to exercise the power given him, the contingent interest should pass by clauses 30 and 31. It could not be sold under the power of sale; it could not be given or divided among the persons named by the executors, and it seems absurd to suppose that the testator intended to give this contingent interest in the lands to the very persons who might, by exercising the power of disposition by will, prevent the happening of the contingency. A very similar state of facts was presented to the supreme court and dealt with by it in Den v. Snitcher, 14 N. J. Law (2 Gr.) 53. On p. 63 Chief-Justice Uornblower gives his reasons for concluding that such a residuary clause did not justify the conclusion that the testator intended to give, by a previous devise, only a life estate.

Tf clause 31 did not pass any interest in the lands devised to complainant, and to others upon the same restriction, then, upon defendants’ theory, testator died intestate as to each tract so devised, if the first devisee fails to devise the same by his will. This result would, in my judgment, be so antagonistic to the whole scheme of the will, which indicates a clear intent to dispose of all the testator’s property, as not to be admissible unless necessary.

Whether defendants would take any interest in these lands if complainant should die without having exercised the power of disposal by will need not be, and ought not to be, determined unless necessary. "Whether necessary depends upon the meaning of the act of 1784, which requires courts to put a specified construction upon testamentary language in all cases except certain described in the act. A devise to A must be construed to be a devise in fee if no expressions in the will show an intent to convey only an estate for life, and “no further devise thereof be made of the devised premises after the decease of the devisee,” &c. These descriptions of the situation, in which the construction otherwise required cannot be applied, are connected by the conjunction “and.” If thereby the legislative intent is disclosed to prohibit the construction of the words of devise only when, the will shows circumstances, viz., expressions indicating an. intent to pass only an estate for life and a devise over after the first devisee’s death, obviously our duty will require an adjudication as to whether the will before us contains a devise over.

In my judgment, the act was not designed to limit the construction to all cases except those in which both descriptive circumstances ajopear in the will, but the statutory construction will be prohibited if either circumstance so appear.

The purpose of the act, as described in its preamble, was to cure the evil arising from ignorance, whereby the words “heirs and assigns” were omitted from devises, although the testator intended to grant an absolute estate, &c. There was clearly no-purpose to prevent a testator from devising an estate for life, either by express words or by implication from expressions used by him. It seems to me not conceivable that when such an. intent appears, the legislative -construction, by which such a devise would pass a fee,- must be given unless there is a devise over. No reasonable construction can be given to the act, in this-respect, unless we read the word “and” as “or,” or attribute to-it disjunctive and distributive functions. That a fair and rational construction of a statute may require such reading of the word “and” is well settled. Dwar. Stat. (Potter’s ed.) 236; Will erf. Stat. L. ISO, and cases cited. “Or” may also be given a copulative meaning when used in a statute. Standard Company v. Attorney-General, 46 N. J. Eq. (1 Dick.) 270.

It remains to discover whether there are expressions in this will showing that the devise in question was intended to convey to complainant only a life estate. I find such expressions in the conditions annexed to the gift in clause 19, prohibiting complainant from encumbering the lands devised, and declaring that complainant acquired no power to sell them. The same expression occurs in a terser form in clause 22. Such prohibitions, if annexed to a devise of a fee-simple, would be void as a restraint on alienation, inconsistent with the estate created by the devise. The force of these expressions is also emphasized by the following sentence, giving complainant power to devise the lands in question by his will. If the previous prohibitions could be held to be void, and so not indicative of an intent to confer on complainant only a life estate, they surely cannot be given that construction when read with the express grant to complainant of a power to devise. If the devise to him was of a fee, there was no need of a grant of power to devise. Such a grant is consistent only with the theory that the devise to complainant was intended to pass an estate for life only.

It results that complainant has not the title he claims. The defendants concede that he has the title above found in him. It appears that they claim nothing antagonistic to that title.

The bill must be dismissed, with costs to the defendants.


text:
    Jane Ann Ker et al. v. Lucas V. Banta et al.
    [Submitted January 23d, 1906.
    Decided April 3d, 1906.]
    Under the provisions of “A supplement to an act entitled ‘An act concerning executors and the administration of intestates’ estates’ (Revision), approved March twenty-seventh, one thousand eight hundred and seventy-four, regulating the sale of lands by administrators with the will annexed, or by administrators de bonis non with the will annexed, and defining their powers,” which supplement was approved April '6th, 1888 (£ Gen. Stat. p. 1J/29), an administrator with the will annexed has power to make sale of lands of the testator when, by his will, testator has conferred upon his executors, by implication, a power of sale
    On bill, answer and proofs.

      Mr. William D. Snow, for the complainants.

      Mr. Samuel B. Demarest, for the answering defendants.
   Magie, Chancellor.

The complainants are Jane A. Ker, Cornelia Terhune and Christina Bogert, three of the four children of Dowah. R. Christie, deceased, and beneficiaries under his will.

The defendants are Helena Banta, the other child of said deceased, .and also a beneficiary under his will; Lucas Y. Banta, her husband,, and administrator with the will annexed of said deceased, and persons who are children of the complainants and the defendant Helena Banta, and who are, or may be, beneficiaries under the will of the deceased.

The principal purpose of the bill is to obtain a construction of portions of the will of Dowah R. Christie, and direction to the- administrator with the will annexed as to his powers and duties thereunder.

This form of equitable relief is generally sought by executors or trustees who are in doubt respecting their powers and duties, but no reason can be perceived why interested persons may not seek this sort of relief, and obtain it, by a judicial direction to the person charged with such duties. In this case no question is raised by the administrator with the will annexed, or any of the defendants, as to the right of the court to act in the premises; but, on the contrary, the answer of the administrator, in which his wife joins, shows that he has doubts as to-his powers and his duties under the will, and had contemplated applying to the court himself for directions when it became necessary to act. By the answer the administrator and his wife submit themselves to the order and decree of this court with respect to this main purpose of the bill.

The will of Dowah R. Christie was probated, on June 13th, 1888, by Elizabeth Christie, his widow, and Cornelius R. Christie, the executors named therein, both of whom have since died. After direction for payment of debts and expenses, he thereby gave all his property, real and personal, to his wife, Elizabeth, “to enjoy the use, occupancy, rents and profits thereof” during her life. By the third clause of the will he gave Jane Ann Ker, after the death of his wife, a lot of land and a building, declared by testator to be valued at $5,800, with all its income, during her life, and after her decease the said property to be divided among her children, share and share alike. By the fourth clause he gave Cornelia Terhune, after the death of his wife, another lot and building, declared by him to be valued at $5,000, with its income, during her life, and after her decease to be divided among- her children, share and share alike. By the fifth clause he gave to Christina Bogert a lot and house, declared by him to be valued at $4,000, with its income, during her life, and after her decease to be divided among her children, share and share alike. The sixth clause raises the question now under consideration. It is in the following words:

"Sixth. I further give and bequeath, after the decease of my said wife, Elizabeth, unto my daughter Helena, from the proceeds of the sale of other real estate, the sum of five thousand eight hundred dollars, with its income, during her life, and after the decease of said daughter Helena, then the said property to be divided among her children, share and share alike.”

By the seventh clause he gave to Christina Bogert $1,800, and to Cornelia Terhune $800, and after their respective deaths the said property is to be divided among their children, respectively.

Reading together the third, fourth, fifth, sixth and seventh clauses, it is apparent that testator designed to benefit each of his four daughters by devises of real estate or bequests of personal estate of equal value in his estimation. Thus he gave Mrs. Ker a house deemed worth $5,800, Mrs. Terhune a house deemed worth $5,000 and $800 in money, and Mrs. Bogert a house deemed worth $4,000 and $1,800 in money, and Mrs. Banta $5,800 in money.

By the eighth clause he gave, after the death of his wife, to Mrs. Ker,'Mrs. Bogert, Mrs. Terhune and Mrs. Banta, “all the proceeds from the sale of real estate and other personal property which may be left after the settlement of the foregoing bequests, to have share and share alike.” Then follows the ninth clause, which is in theste words:

“'Ninth. 1 do give my executors full power and authority to manage and control my real and personal estate, to give and execute all agreements, leases and papers, and to do all things proper to carry into effect the provisions of this will.”

The question first presented relates to the power of the administrator with the will annexed to make sale of a farm of which testator died seized, and which, it is admitted, was the only real estate owned by him at his death, besides the houses and lots devised by the third, fourth and fifth clauses of the will.

It has been declared to be the rule that when a will confers a power of sale upon executors ratione officii, the power may be exercised by anyone succeeding to the office. Griggs v. Veghte, 47 N. J. Eq. (2 Dick.) 179; Joralemon v. Van Riper, 44 N. J. Eq. (17 Stew.) 299. The legislature has deemed it proper to enact a law upon the subject. The statute at present in force is the supplement to the “Act concerning executors and the administration of intestates’ estates,” approved. April 6th, 1888. ¡2 Gen. 8lcd. p. 1J29. In the case of Varick v. Smith, 67 N. J. Eq. 1, I had occasion to examine that supplement, and reached the conclusion that it conferred upon administrators with the will annexed power to make sale of lands, when the testator, by his will, had empowered his executors to make sale thereof as executors. A deed of the administrator with the will annexed, upon a sale of lands, duly reported to and approved by the orphans court, as required by that act, will doubtless pass title to the lands.

The ninth clause of the will before us gives somewhat extensive powers to the executors named therein. There is, however, no language in that clause conferring on the executors named in the will express power to sell the real estate of testator. But a power to sell lands may be inferred to have been conferred upon executors, and will be implied when a sale of lands is necessary to carry out the provisions of the will and no other person is designated to make the sale, and when testator has blended together real and personal estate and the united proceeds are to be distributed by the executors. Here the farm must be sold to raise the $5,800 for Mrs. Banta, and under the sixth clause of the will any excess above that sum is to be put together with proceeds of personal property not otherwise disposed. of, and is to be distributed among the four daughters, under the eighth clause. A power of sale in the executors, under such circumstanfees, would be implied. Lippincott v. Lippincott, 19 N. J. Eq. (4 C. E. Gr.) 121; Haggerty v. Lanterman, 30 N. J. Eq. (3 Stew.) 37; Hollman v. Tigges, 42 N. J. Eq. (15 Stew.) 127; Potter v. Adriance, 44 N. J. Eq. (17 Stew.) 14; Lindley v. O’Reilly, 50 N. J. Law (21 Vr.) 636, 649.

A power of sale thus implied seems to be a mere naked power. Chancellor ■'Williamson expressed the opinion that such a power could not be exercised at common law by the survivor of several executors, but might be exercised by such a survivor or an administrator with the will annexed under an act similar to the act of 1888, before cited. Chambers v. Tulane, 9 N. J. Eq. (1 Stock.) 146.

Under ilie provisions of that act I have no doubt but that the power of sale impliedly conferred upon the executors of the deceased by his will may be exercised by the administrator with the will annexed. Therefore a duty devolves upon him to make sale of the farm not devised by testator, both for the purpose of raising the $5,800 given to Mrs. Banta and her children by the provisions of the sixth clause and for the purpose of dividing the excess of the purchase price above that sum, together with the proceeds of sale of personal property not otherwise disposed of, among the four daughters. This plain duty Lucas Y. Banta must perform within a reasonable time, using his best judgment as to the time and mode of sale for the purpose of procuring a fair price for the property.

There is a circumstance disclosed by the bill, and admitted by the answer, which justifies some auxiliary relief in respect to such a sale. It is made to appear that after the administrator with the will annexed was appointed it was discovered that the deceased had no title on record for a portion of the farm, nor could any deed for that portion be found among his papers. The administrator, by his counsel, made application to the descendants of the grantor of the deceased and obtained from them a deed to cure the defect, but the conveyance thereby was made to the four daughters of the deceased in fee-simple. It is not pretended that they paid any consideration for this conveyance, and the complainants admit, and the defendants do not deny, that the grantees hold the title for the administration of the estate of Dowah R. Christie. Therefore, the administrator may, when he makes a sale, call upon them and require them to confirm by their deed such conveyance as he shall make.

It appears in the case that the administrator with the will annexed holds funds of the estate, arising from personal property, sufficient to satisfy the two sums of $800 and $1,800, which arc the subject of the gift in the seventh clause of the will, and that he has been paying interest thereon to the life beneficiaries. He has treated it as if he held the sums in trust for the beneficiaries. In the argument, counsel seemed to assume that the administrator rightly treated them as trust funds to be administered by him, and also that the $5,800, the subject of the gift in the sixth clause, when raised from the sale of the farm, would also be thus held. It is proper to say that this cannot be conceded. The will created no express trust of those sums. If one was created by implication, in the executors, it does not follow that an administrator with the will annexed succeeds to that trust. In Varich v. Smith, ubi supra,, it was held that the powers conferred by the act of 1888 were limited to the sale of lands by the language of the act and by its title. The matter thus suggested is not within any of the prayers of the bill, and cannot therefore be passed upon.

The bill seeks other relief. It prays that the administrator with the will annexed be decreed to settle his account in this court.

. The jurisdiction of this court to require such accounting is undoubted. While paramount, its jurisdiction is to some extent concurrent with, the jurisdiction of the orphans court. The jurisdiction of that court ought not to be interfered with except for some special cause. Frey v. Demarest, 16 N. J. Eq. (1 C. E. Gr.) 236; Rutherford v. Alyea 54 N. J. Eq. (9 Dick.) 411; Bird v. Hawkins, 58 N. J. Eq. (13 Dick.) 229; Search v. Search, 27 N. J. Eq. (12 C. E. Gr.) 137. Not only is there no good cause shown for requiring an accounting in this court, but it is made distinctly to appear that it would be inequitable to do so.

The bill of complainants states, and it is conceded by the answer and proved by the evidence, that the administrator with the will annexed had previously filed his account with the orphans court of Bergen county, and that some of the complainants, if not all, had filed exceptions thereto, which exceptions are now pending before that court, the matter having been laid over to await the determination in this cause. .Under such circumstances, I think the accounting should not be removed from the tribunal which has jurisdiction and brought into this court, with additional expense and delay. The principal objection to that account in the orphans court was in respect to allowance claimed by the administrator for payments to his wife from the rents of the unsold farm. The contention was that as the farm had not been sold the fund of $5,800 had not been segregated from the estate, and its income was not payable until after the sale. But the administrator insisted that the complainants agreed that while the farm remained unsold he should thus dispose of the rents over and above the necessary expenses, and that his payments upon their agreement could not be objected to by them. But -this contest can be conducted in the orphans court as well as here.

A decree will be made on the lines of this opinion respecting the powers-and duties of the administrator with the will annexed, but no other relief will be granted under this bill.


text:
    Jacob Weber, executor of Susanna Fritz, deceased, v. Susanna Waldeck et al.
    [Decided April 13th, 1906.]
    Testatrix, by her will, devised and bequeathed, to persons named, both real and personal property, to be divided among them in unequal shares. She then provided that such shares should not be paid until the respective donees should become of age, but in the meantime should be deposited in some bank or institution, on interest, and that her executor was “not to be prevented” from applying any share, during the minority of the donee, to his or her support and maintenance, if the executor deems it fit and proper so to do. She then empowered her executor to sell and dispose of her estate “as the law may require” him to do.—Held, (1) that the executor was thereby empowered to make sale of the real estate of testatrix, and to d-ivide the aggregate sum of its proceeds, and the undisposed of personal estate, into the shares designated by testatrix, to pay the share of any owner, of age, to him or her, and to retain the share of any donee not yet of age; (2) that as to the share of any minor, the executor is to hold the same as a trustee, and to deposit the same so as to draw interest, with the implied power to use the share for the support and maintenance of the minor, if he adjudges it proper to do so.
    On bill taken pro confosso and proofs in 'support of its allegations.

      Mr. Thomas L. Raymond, for the complainant.
   Magie, Chancellor.

The bill of complaint is filed to obtain the direction of the court with respect to his powers and duties under the will of his testatrix, Susanna Fritz.

The defendants are the beneficiaries under the will of said Susanna Fritz.' They have not appeared or answered the bill. Under a rule for proofs, testimony has been taken, and the complainant now seeks the relief which he asks by his bill.

The relief sought compels the construction of the said will. Bv that will, after directing the payment of debts and funeral expenses, and a bequest to the executor in trust for the keeping and maintenance of the cemetery lot of testatrix, she proceeds, by the third paragraph, to dispose of her property in the following language:

"Third. I give, devise and bequeath all my remainder property, be the same real or personal estate of which I may be possessed off at the time of my decease, and whatever it may be or situated, to the following named persons, and to be divited to them as hereinafter mentioned: To Susanna Waldeck, daughter of my sister, or to her children; Anna Buck, daughter of John Bnck; Caspar Volk, Jr., son of Caspar Volk, Sr.; Magdalena Weber, Susanna Weber, Jacob Weber, Christine Weber, Catharine Volk, Elisabeth Volk, or their children, and Christina Eelger, or to her children, and be divited as follows: Said Susanna Waldeck, Anna Buck and and Caspar Volk, Jr., shall each of them receive two parts, and the remainder persons named in this will shall each of them receive one part, that is to say, my estate be divited into into thirteen parts, and Magdalena Weber, Susanna Weber, Jacob Weber, Christina Weber, Catharine Volk, Elisabeth Volk, Christina Eelger, shall each of them be entitled to one part, and the rest six parts be divited among the first named three persons; and I do further order, and it is my will, that in case one of the foregoing named persons shall die, without leaving any children, then his or her part be given to the remainder persons in proporsione, and if such persons shall leave children at his death then such children shall be entitled to their parants share,
•‘And I do further order, and- it is my will, that the legacys given to the foregoing named persons, be given to them when they shall become of age, the same to bo saved and deposit on bank or other institution on interests, but nothing in this will be considered so as to prevent my executor to use such part of legacy as he shall seem fit and proper, in case of necces'sity, for the support and maintainance of any such persons during their minority.”

Afterwards she provides as follows:

. "Lastely.—X hereby appoint and nominate my friend, Jacob Weber, executor of this my last will and testament, and in case of his dead I nominate William Buck on his place, as such executor, both of them shall have full power to sell and dispose my estate as the law may require them to do.”

Of the two questions submitted, that ought first to be considered which relates to the power of the executor under this will to sell and dispose of the real estate of the deceased. On that question there is, in my judgment, no possible doubt. While by the third paragraph, above quoted, testatrix appears to devise and bequeath both real and -personal property to certain persons, she directs the aggregate sum of both real and personal property to be divided among them in certain irregular portions, and thereby mingles together both real and personal property to be divided by some person. Testatrix then proceeds to provide that the legacies (evidently meaning the shares in the aggregation of real and personal property) given to those persons shall not be given to them until they become of age, and that in the meantime they shall he preserved and deposited in some bank or other institution, on interest, with an implied provision that the executor may use legacies thus given, in case of necessity, for the support and maintenance of any of the beneficiaries during their minority. There is thus plainly indicated an intent that the executor shall make the division provided for, and shall retain the shares of the beneficiaries not j>et of age until they become of age, with the implied provision that the executor may make use of the share of any minor for support and maintenance if he deems it fit and proper. When, therefore, the testatrix proceeds to give express power to the executor or his successor to sell and dispose of her estate “as the law may require them to do,” I think that there is a plain gift of a power of sale of real as well as personal property, because, under the provision respecting the division of the proceeds, and the use of the shares of minors for their support and maintenance in the judgment of the executor, such sale is what the law would require the executor to make.

The other question relates to the power and duty of the executor respecting shares which, under the provisions of the will, are not now payable to the beneficiaries. With respect to the shares the beneficiaries of which are minors, it seems to me obvious that the testatrix Iras conferred the powers and imposed the duties of a trustee upon the executor. He is to deposit the shares in some banking institution selected by him, and, by implication from the direction that he is not “to be prevented,” he is empowered to apply such parts of the shares as to him seems proper to their support and maintenance. This is a trust imposed on the executor which he must perform.

A decree will be made in conformity with this opinion.