author: Beeey, V. C.

text:
    Viola Vigne, complainant, v. Joseph Vigne, executor, &c., et al., defendants.
    [Decided October 5th, 1925.]
    1. Where one buys property with another’s money, and takes title in his own name, a trust in favor of the one furnishing the consideration exists. Where the parties are strangers, there is a presumption of a resulting trust in favor of the person furnishing the money, but where the parties hold to each other the relation of parent and child, or husband and wife, a contrary rule prevails.
    2. Nothing short of certain, definite, reliable and convincing proof will justify the court in divesting one man of title to lands, evidenced by a regular deed, and putting it in another.
    3. On proof that a husband has received his wife’s money, a court of equity will compel him and his representatives to account to her, and they can only discharge themselves by showing that the husband disposed of the money according to his wife’s directions, or that it was a gift to him.

      4. If a wife voluntarily permits her property to be so mixed with her husband’s that it cannot be distinguished, she will be estopped from claiming the same as against his creditors, or persons claiming under him.
    5. In establishing a claim against her husband’s estate, a wife is not more competent to testify to transactions with, or statements by, the testator or intestate, when the executor or administrator of her deceased husband is a necessary party, than any other witness.
    6. Evidence examined, and held that the complainant has failed to prove her claim to property in her deceased husband’s name by certain, definite, reliable and convincing proof.
    On bill, &c. On pleadings and proofs.

      Mr. John P. Lloyd and Mr. Robert H. McCarter, for the complainant.

      Messrs. Quinn, Parsons & Dor emus, for the defendants.
   Beeey, V. C.

The bill in this cause is filed to establish a trust in favor of the complainant in certain lands located in the borough of Keyport, Monmouth county, New Jersey, of which her late husband, Rosoleno Vigne, died seized, and also in certain bank accounts and other personal property standing in the name of her deceased husband at the time of his death and now in the possession of defendant Joseph Vigne as his executor.

This suit was originally begun in the supreme court, and, on motion to dismiss the proceedings on the ground that the suit involved a contract between husband and wife, it was transferred to this court. The case was fully tried before the late Vice-Chancellor Poster, and he was awaiting briefs at the time of his death. It was afterwards referred to me on the pleadings and the record of testimony. At my suggestion some additional testimony was taken, but this did not prove to be very helpful or of any particular advantage to either side.

At the time of the death of Rosoleno Vigne he held title to two parcels of real estate in Keyport, Monmouth county, New Jersey, one of which was purchased from Samuel Brown and wife in 1919 for a consideration of $2,800, and the other of which was purchased in 1920 from Loretta B. Wilson and husband for a consideration of $2,650. The complainant alleges that she furnished the money for the purchase of the Wilson property and that title was taken in her husband’s name without her knowledge or consent, and that she did not know that title to that property stood in his name until after his death. She makes no claim to the Brown property, admitting that that was purchased by her deaceased husband with his own funds. At the time of his death decedent had on deposit in his own name in the Seamen’s Savings Bank in New York the sum of $2,974.44; in the Emigrant’s Industrial Bank of New York the sum of $3,150.94; in the Irving Savings Bank of New York the sum of $3,242.39, and in the Keyport Banking Company at Keyport, New Jersejr, the sum of, approximate^, $3,500. He also had Liberty bonds in the amount of $1,000, all of which were registered in his name. The four bank accounts above mentioned were all savings accounts. Decedent also had on deposit in a checking account in the Keyport Banking Company at the time of his death, approximately, $1,000. The total value of his estate was about $20,000. Complainant claims that practically all of this estate, except the Brown property and the money in the checking account, is charged with a trust in her favor. Complainant also alleges that all of the moneys which were deposited in the various bank accounts of her husband, excepting the checking account in the Keyport Banking Company, were her moneys, saved by her from her business, and that she was unaware of the fact that the accounts were in her husband’s name until after his death. There is no specific mention of the Liberty bonds in the bill of complaint, but on the trial of this cause the complainant claimed them as having been purchased with her money. Complainant also alleges that the business of her husband was small and unprofitable, and that it would have been impossible for him to have accumulated so large an estate from his own business.

On behalf of the defendants it is claimed that the business of complainant’s husband was profitable; that he was frugal and saving, and all of the money here in dispute was accumulated by him as the result of his own labors; that if any money was at any time paid over to him by complainant it was intended as a complete gift; .that all of the earnings of his wife became the property of the husband by virtue of the laws of this state; that the failure of complainant to assert her rights to the bank deposits from 1909 until after the date of her husband’s death constitutes such laches as to now bar the claim; also, that whatever claim the complainant has is barred by the statute of limitations.

Obviously, there is nothing in the three defenses last mentioned. Since the Married Women’s act of 1884 a wife has been entitled to her earnings from her separate business or estate. If a trust arose as to the bank accounts under the facts as alleged, there would have been no laches. Also, if a trust was imposed upon the property claimed by the complainant, it would not be barred by the six-year statute of limitations.

The evidence shows that the complainant and Rosoleno Yigne were married on October 22d, 1905, and that they lived together at Keyport, New Jersey, until his death, on May 25th, 1921. Prior to the marriage, complainant had conducted a small store at Keyport, where she sold candy, cigars, bread, cakes, pies, ice cream, &c., but she discontinued this business just before the marriage. She testified, and this is undisputed, that on the date of the marriage she had saved, approximately, $800. She also testified that her husband was without financial means at the time of the marriage. Bank statements introduced on behalf of the defendant show, however, that Rosoleno Yigne had a bank account prior to November, 1905, and that in November, 1905, he had a balance of $875 on deposit. He had been employed by a railroad company at a small salary previous to that time. After the marriage complainant re-engaged in the store business, opening a new store in the first floor front room of the house occupied by the parties as a home, and shortly thereafter Mr. Vigne obtained employment in selling teas, coffees, spices, extracts and butter substitute over a considerable territory in Middlesex and Monmouth counties, which he covered first by means of a horse and wagon and later by an automobile. Eor the purpose of his business he used one side of the store, while the complainant, for her business, used the other side. It is alleged by the complainant that the business conducted by her was her own separate business, conducted for her own benefit. There was no testimony challenging this statement, and it must be accepted as a fact that the business conducted by her was her own separate business. By his will Rosoleno Vigne left all of his property to the complainant for life, and on her death to his brothers and sister-in-law.

It is a settled principle of law that where one buys property with another’s money and takes title in his own name, a trust in favor of the one furnishing the consideration results. Cutler v. Tuttle, 19 N. J. Eq. 558; Read v. Huff, 40 N. J. Eq. 229; Mayer v. Kane, 69 N. J. Eq. 733; Yetman v. Hedgeman, 82 N. J. Eq. 221.

Where the person furnishing the money and the person taking the title are strangers there is a presumption of a resulting trust in favor of the person furnishing the money, but where the parties hold to each other the relation of parent and child, or husband and wife, a contrary rule prevails. Reed v. Huff, supra.

But nothing short of certain, definite, reliable and convincing proof will justify the court in divesting one man of title to lands evidenced by a regular deed and putting it in another. Midmer v. Midmer’s Executors, 26 N. J. Eq. 299.

This doctrine of resulting trusts in all of its phases applies alike to personal and to real property. 3 Pom. Eq. Jur. § 1038 p. 2353.

It is also well settled that “on proof that a husband has received his wife’s money a court of equity will compel him and his representatives to account to her at least for the principal received, and they can only discharge themselves by showing that the husband disposed of the money according to the wife’s directions, or that it was a gift to him.” Cole v. Lee, 46 N. J. Eq. 779.

“But a gift by the wife to the husband may be inferred from the circumstances” (Ibid.), and where a husband receives money from his wife for investment for her he becomes her trustee. Tresch v. Wirtz, 34 N. J. Eq. 124.

See, also, Adoue’ v. Spencer, 62 N. J. Eq. 782, and Small v. Pryor, 69 N. J. Eq. 606, for further application of the rule respecting trusts arising between husband and wife. It also seems to be the general rule that “if the wife voluntarily permits her property to be so mixed with the husband’s that it cannot be distinguished, she will be estopped from claiming the same as against his creditors, or persons claiming under him.” 30 Gorp. Jur. 832, and cases therein cited.

There is little dispute here between counsel as to what the law is on the questions here involved. It appears to me that this is peculiarly a fact case, and I shall, therefore, discuss the evidence as related to the various items of property claimed by the complainant under the following heads:

1. Wilson property.

3. Bank accounts.

3. Liberty bonds.

1. Wilsoxt Property.

The complainant testified that this property was purchased with her money; that when the agreement of purchase was made it was made in her store, and that she then went into the room in the rear of the store and took $100 in cash from a tin box in which she kept her savings and paid it over to the Wilsons; that her husband was present at this transaction; that later, when settlement was made, she gave the balance of the purchase price to her husband. Mr. and Mrs. Wilson testified that they saw the complainant go into the ■room in the rear of her store on the day the agreement was made and bring out $100 in cash, which she gave Mrs. Wil son and her husband as a down payment under the contract. Other than this there is absolutely no corroboration whatever of the complainant’s story. The lawyer in whose office the settlement was made testified that the complainant was not present at that time; that he does not remember whether payment was made by check or in cash, but that settlement was made^by him pursuant to instructions from complainant’s husband; nor do either of the Wilsons testify as to whether or not the final payment was made in cash or by check, or who made it, except that they say the final payment was made in the lawyer’s office when settlement was made. As the complainant was not there at that time, it must be assumed that the final payment was made by the complainant’s husband. There is nothing in this case except the complainant’s own testimony' to indicate that the money' which was paid on the final settlement was her money.

In complainant’s brief stress is laid upon the testimony of Mr. and Mrs. Wilson respecting "the statement of Mr. and Mrs. Vigne that the property was being acquired as a home for Mrs. Vigne, the complainant. It will be noted that under the will this property becomes Mrs. Vigne’s for her lifetime, so, that the statement attributed to Mr. Vigne, that it was being bought as a home for his wife, is not inconsistent with the purchase having been made by him with his own money or with her having consented to the title being taken in his name, even if she did pay' for it. The witness, also testified that the negotiations were with both Mr. and Mrs. Vigne, and, apparently, one had as much to say about the matter as the other. To my mind the proof with respect to this property falls far short of that “certain definite, reliable and convincing proof” which would justify this court in finding that this property was purchased with the complainant’s money, the title taken in her husband’s name without her knowledge, and that a trust in her favor, therefore, results. I, therefore, hold that the complainant has no interest in this property other than that which she takes under the will.

2. Bank Accounts.

With respect to the three bank accounts in New York savings banks, complainant’s testimony is that she gave her husband the moneys which were deposited in these banks to deposit for her in her name. She also testified that as soon as the money was deposited in each of the banks the bank books were brought to her by her husband and that she had possession of them, except when other deposits were made, down to the time of the death of her husband. Aside from this the testimony respecting these accounts is very meagre. One witness stated that Mr. Yigne told him one morning many years ago that he was going to New York to do some banking for his wife. How much money he was taking, to what bank, or whether it was to make a deposit, a withdrawal or what, the witness does not state. One other witness testifies that on one occasion he saw Mr. Yigne have a bank book which he believes was the Seamen’s bank book, and that Mr. Yigne then stated “that is Yi’s money,” “Yi” being the complainant. Another witness, Mr. Polling, testifies that Mr. Yigne, on one occasion, told him that he was taking some money to New York to put in a savings bank, and that the money came from his wife’s (the complainant’s) money in the building and loan. Obviously, this is not so, because the complainant herself testified that when, in the latter part of 1918, her stock in the building and loan association matured, she deposited the proceeds of that stock in the Keyport Banking Company to her own account, and Exhibit E-6, which is a copy of the bank’s record of that account, shows that this is so. This witness, therefore, was, in my opinion, drawing largely upon his imagination. As to the savings account in the Keyport Banking Company, complainant testifies that she herself opened this account in her husband’s name; that she made all the deposits therein except possibly a few made by her husband for her; that she spoke to her husband about the account being in his name, and he told her it would be all right, that on his death she could -withdraw the money the same as though it were in her name, and that he had made arrangements with the bank to that effect. This is the sole testimony with respect to this account. Obviously, as complainant herself opened the account, whatever arrangements with reference thereto were made with the bank were made by the complainant herself and not by her husband. The complainant had a bank account before her marriage and she had a bank account in the Keyport Banking Company in 1918, and from then until after her husband’s death, in her own name, so that she must have known that there was a difference in a bank account in her name and one in the name of her husband. Admitting, for the sake of argument, that the money deposited in this account was complainant’s, there is sufficient in these circumstances to infer a gift to her husband. Complainant claims that all of her receipts and earnings from her business were kept by her in a tin box, which she hid under the floor of the house in which they lived, and that she had as high as $2,000 in this box at a time; that from time to time she would take various sums from the box, give them to Mr. Yigne for deposit in her account or deposit them herself in the Keyport Banking Company in the account opened in Mr. Yigne’s name, a rather unusual practice, when there were at least six bank accounts maintained by this family during all or a part of their married life. I cannot believe her statement that she was unaware of the fact that the moneys in the New York banks were deposited in the name of her husband until after his death. According to her own testimony she had exclusive possession of the bank books after the accounts were opened, except when other deposits were made, and must have seen that these books bore her husband’s name and not hers. Her testimony on this phase of the case is vague and uncertain as to dates or amounts of deposits, and the testimony of admissions on the part of the deceased husband, which were admitted as corroborative of the complainant’s testimony, is unconvincing and uncontrollmg. The proof here, in niy judgment, also falls short of that “certain definite, reliable and convincing proof” necessary to establish a trust in favor of the complainant. I hold, therefore, that the bank accounts here in dispute belong to the estate of Rosoleno Yigne.

3. Liberty Bonds.

As to the Liberty bonds, complainant testified that they were purchased by her with her own money; that after the purchase she kept them either in the tin box above referred to or in a small safe; that they were at first unregistered; that she collected interest thereon by having her husband clip coupons therefrom for one or more interest periods, and that on one occasion, when she gave the bonds to her husband to collect the interest for her, he took them away, had them registered in his own name without apprising her of that fact, and then returned them to her; that she had had possession of them from that time down to his death, when she discovered that the bonds were registered in his name. She also stated that she purchased them at the bank in Key-port, but she could not name the official or employe of the bank from whom she purchased them, and no official of the bank was produced to testify on this important point. At another time she stated that she gave the money with which these bonds were purchased to her husband with instructions to buy the bonds for her, which he did. She was uncertain as to the denomination of the bonds, testifying at one time that five of them were in the denomination of $100 each and one in the denominataion of $500; that there were six purchases made; and on another occasion she testified that there was one bond of $100, two bonds of $200 each and one bond of $500, and that there were four purchases made. Aside from this, there no testimony whatever respecting these bonds. The burden of proof being on the complainant, and there being no corroboration of her testimony, I do not feel that the evidence is sufficiently convincing to warrant the court in charging these bonds with a trust in her favor. I hold them to be the property of the estate of Rosoleno Yigne.

There was considerable testimony introduced in this cause which might be said to apply generally to all of the property which the complainant now claims. The complainant testifies that the business of her husband was inconsiderable; that his earnings were small, and that they amounted to from $15 to $18 a week. She also testifies, however, that her husband paid practically none of the living expenses of the family except a portion of the rent. Other witnesses testified to the amount of business done with the various firms which they represented, all of this testimony being introduced for the purpose of indicating to the court that it would have been impossible for the complainant’s husband to have accumulated from his own business an estate so large as that which was apparently his at the time of his death. It is significant, however, that one witness testified that Mr. Yigne’s profits from the sale of butter substitute alone over a period of seven months was, approximately, $700, and, not being subject to much expense, it is clear that he had an opportunity to save 'a large part of his earnings. There was also testimony indicating that he had been engaged in the selling of butter substitute for a period of twelve or fourteen years prior to his death. On the part of the defendants it is shown, however, that during the period from 1905 to 1910 complainant’s husband had deposited in his checking account in the Key port Banking Company a sum in excess of $84,000, apparently the proceeds of the business in which he was engaged. It does not seem to me, therefore, impossible that the deceased should have saved a matter of $20,000 in sixteen years. On the facts alone, as they are presented by the record, and giving the testimony the fullest probative force, I am convinced that the complainant is not entitled to the relief asked. However, there are circumstances here which to my mind indicate that very little probative force should be given to the testimony of complainant, and the case is very largely made up of her testimony.. That testimony relates mainly to transactions between complainant and her deceased husband. This suit is brought by her against her husband’s executor. It is settled in this state that “in establishing her claim against her husband’s estate a wife is not more competent to testify to transactions with, or statements by, the testator or intestate, when the executor or administrator of her deceased husband is a necessary party, than any other witness” (Adoue’ v. Spencer, supra), and the test to be applied to testimony of this character, as I understand it, “is to inquire whether in case -the witness testified falsely the deceased, if living, could contradict it of his own knowledge.” Smith v. Burnet, 35 N. J. Eq. 314; Van Wagenen v. Bonnot, 74 N. J. Eq. 843; Campbell v. Akarman, 83 N. J. Law 567. If so, such testimony is excluded, the cases holding that where the voice of one of the parties is silenced by death, that of the other must be bjr law.

Applying that rule to much of the testimony of the complainant in this suit, it will be found that if complainant’s husband had been present when it was given he could have denied it. For instance, the testimony to the effect that she gave her husband money with which to make the final payment on the Wilson property could have been denied by him. Her testimony to the effect that she gave her husband the moneys which were deposited in the New York banks to be deposited to her credit could have been denied by him. Her testimony to the effect that she gave her husband money with which to buy Liberty bonds could have been denied by him. Stripped of this evidence, how can the complainant’s case stand? As I read the transcript the testimony which I have questioned was admitted by the late Vice-Chancellor Foster only tentatively, over objection, and subject to being stricken from the record on application. I find no record of any motion to strike, and no such motion was made before me. The testimony being in the case, although over the objection of counsel for defendant, it must be considered, but the weight to be given to that testimony is a matter for me to decide, and, while not basing my decision on the inadmissibility of this testimony, I mention it to indicate that, in my judgment, very little weight ought to be given to it.

“Evidence of this character, which has the effect of disinheriting the heirs, must be clear and satisfactory, and, under ordinary circumstances, should be corroborated.” Small v. Pryor, supra.

But there is still another circumstance in this case which is worthy of consideration in passing upon the weight which is to be given to the testimony of the complainant. It appears from the testimony and exhibits that the complainant herself was made the executrix, and her brother-in-law, the defendant Joseph Yigne, was made the executor of her husband’s will. After her husband’s death she participated in the probate of the will and later filed a claim against the estate for services rendered her husband during his lifetime. This claim is made under oath, and is as follows:

“Viola Vigne, Executrix and Joseph Vigne, Executor of the last will and testament of Rosoleno Vigne, deceased,
Drs. to Viola Vigne.
During the lifetime of said decedent this claimant at decedent’s request performed work and services in the management and conduct and operation of the business of selling teas, coffees, candies, stationery and tobacco, located at 187 First Street, Keyport, New Jersey, and in consideration thereof the said decedent did promise and agree to pay this claimant one-lialf of the net profits of said business. This claimant devoted her entire time to the management of said business from about June, nineteen hundred and six, until 'decedent’s death May 25th, 1921. That during said period of time the net profits of said business amounted to approximately fifteen hundred dallars annually and no part thereof was ever paid to this claimant. At the time of decedent’s death his estate amounted to approximately twenty thousand dollars as nearly as can be ascertained at this time, and which is made up exclusively of the net profits of said business and which amount this claimant under her agreement with said decedent is entitled to one-half. Therefore claimant makes this claim against said estate in the sum of ten thousand dollars with such interest as the law may allow.
Dated October 19th, 1921.
Viola Vigne.
State of New Jersey, County of Ocean, | ss.
Viola Vigne, being duly sworn upon her oath according to law, deposes and says that she is the creditor in the foregoing claim mentioned, that the services therein mentioned were pel-formed in said partnership business at the times and at the terms in the foregoing claim named; and deponent further says that no part of the foregoing claim has been paid, but that the whole sum of ten thousand dollars therein named is justly due and owing- to her.
Viola Vigne.
Subscribed and sworn to this 19th day of October, 1921, before me
Viola E. Patterson,
Notary Public of N. J.”

It will be noted that in this claim the complainant avers that under the arrangement with her husband she was entitled to one-half of the profits of the business conducted at 187 Eirst street, Keyport, New Jersey (which was their home), and makes no distinction between the business of her husband and her own, referring to the business as a partnership. She also alleges that the net profits of this combined business were about $3,500 a year.

This claim was prepared by a reputable and capable lawyer to whom the attorneys of the estate referred her after the probate of the will. It is under oath. This lawyer testified that he prepared the claim from statements made and information given to him by the complainant, and that the claim correctly recited the facts as stated by her, and that it was fully explained to complainant before she swore to it. Obviously, it is inconsistent with the claim of complainant now presented in this suit. The claim being disputed by the estate, complainant’s then attorney began the suit in the supreme court referred to at the beginning of this opinion, based on a claim for the reasonable value of services alleged to have been rendered by the plaintiff to her husband during his lifetime. After that suit was transferred to this court an amended bill of complaint was filed here, in which it was claimed that there was due the complainant the sum of $10,000, with interest, for moneys of the complainant paid by her to her husband, during his lifetime and unlawfully retained by him. That amended bill was evidently based upon a state of facts different from both that alleged in the claim filed with the executor and the complainant in the supreme court. Subsequently, the solicitor who instituted the suit in the supreme court, and who also filed the first amended bill of complaint in this court, withdrew from the case. The present solicitors of complainant were thereupon substituted, and they filed another amended bill of complaint based upon the theory that practically all of the estate of the complainant’s husband was held by the defendant-executor in trust for the complainant. This is the bill now under consideration. It will be noted that neither in the claim originally filed with the executor of the estate, in the suit instituted in the supreme court, nor in the first amended bill of complaint filed in this court, was there any mention whatever of the Wilson real estate having been purchased- with the moneys of the complainant; nor did she claim any interest therein. The whole theory of the present bill seems to have been an afterthought. I believe that if the complainant had originally had any such claim -in -mind as is stated in the final bill of complaint filed in this cause, she would have stated the facts alleged in that bill to her first solicitor, and I am further of the opinion that if these facts had been disclosed to him he would not have prepared the original claim filed with the executor or the complaint in the supreme court. His standing at the bar excludes from my mind any idea that he could not distinguish between a claim based on services and one based upon the theory of a resulting trust. The facts necessary to support the one would be essentially different from those required to support the other. If the facts as alleged in the present bill are true the question arises, why did the complainant not tell these facts to her first solicitor ? On the whole, I do not feel that the complainant is entitled to a decree, and I will advise a decree dismissing the bill of complaint.


source: Caselaw Access Project

author: Berry, V. C.

license: Public Domain

text:
    Edna Allen Miller et al., complainants, v. Jersey Coast Resorts Corporation, a corporation, defendant.
    [Heard July 17th, 1925. Submitted September 9th, 1925.
    Decided October 9th, 1925.]
    1. Where a covenant in a deed is not to “erect or permit upon any part of said land any hotel * * * building for the curing of fish, or for any other uses or purposes that shall depx’eciate the valxxe of the property for dwelling-houses,” the inhibition is against bxxildings intexxded1 for cex-tain uses, and unless it can be determined beforehand that the bxxilding is for a use specifically prohibited, or a xxse that will depreciate the value of adjoining property, it is not objectionable, the restriction 'being not against the use to which the lot is put, but against the erecting or permitting on the lot of buildings intended for pax-ticular pxxrposes.
    2. Evidence examined, and held that the acts proved do not violate the covenant aforesaid, nor eonstitxxte a nuisance.
    3. De Gray v. Monmouth Beach Club House, 50 N. J. Eq. 329, followed.
    On bill for injunction.

      Messrs. McCarter & English, for the complainants.

      Messrs. Quinn, Parson .& Dor emus, for the defendant.
   Berry, V. C.

The bill in this cause is filed to restrain the alleged violation of certain restrictive covenants affecting land of the defendant located in Monmouth Beach, New Jersey. The complainants are the owners of property located on Ocean avenue, Monmouth Beach, New Jersey,' adjacent or near to the property of the defendant. Both the properties of complainant and defendant consist of lots which are part of a large tract of land in Monmouth Beach, laid out in 1871 by an association known as “Monmouth Beach Company.” This tract was laid out according to a map drawn by K. Eorsberg, and filed in 1872 in the clerk’s office of Monmouth county. Pursuant to the plan of development a draft of restrictive covenants was prepared and printed forms of deeds containing this covenant were also prepared. Almost uniformly thereafter all deeds for lots in this tract contained the restrictive covenant alluded to, and which read as follows:

“That the party of the second part, his heirs and assigns, will not at any time hereafter erect or permit upon any part of the said land any hotel, drinking saloon, gaming-house, slaughter-house, furnace, manufactory, brewery, distillery or building for the curing of fish, or for any other uses or purposes that shall depreciate the value of the neighboring property for dwelling-houses.”

The defendant is a business corporation organized under the laws of New York.

Without going into the details of the various conveyances of the parties, it may be stated that the complainants have the right to enforce the covenant if it is being violated, and the defendant, having purchased its land expressly subject to the restrictions, is bound thereby. On the defendant’s lots there is erected a large and commodious dwelling-house of, approximately, twenty rooms. The complainant Miller lives on the property immediately adjoining the property of the defendant on the north, and resides there during the summer season. The defendant purchased its property in February, 1923, and during the summer of that year and the following year the dwelling-house was occupied by the stockholders of this corporation and their families. The alleged violations of the restrictive covenant above recited relate to the uses to which the property of the defendant is being put, and the conduct of those who occupy and use the property during such use and occupancy. The first objection is that the dwelling-house is being “used as a boarding-house for people of a very objectionable type, there being frequently as many as seventy-five persons accommodated therein, who, with their children, make a great noise and conduct themselves in such a manner as that the whole neighborhood was aroused;” that the dwelling-house contained too many beds, as many as three beds being- contained in one room; that the conduct of the persons occupying the premises of the defendant is, apparently, intended to compel the complainants, or some of them, to purchase the defendant’s property at a high price, and that in pursuance of this plan the defendant, during the month of August, 1924, advertised its property for rent as. a home for colored people at a nominal rent. There is no specific allegation in the bill that the defendant is maintaining a nuisance in the use or conduct of its property, and the prayer for relief is based distinctly upon an allegation of violation of the restrictive covenant above cited.

The defendant denies that it has in any sense violated the covenant, or that it is conducing a boarding-house, or that it has any designs to compel the complainants, or any of them, to purchase its property, and claims that the whole objection of the complainants to the defendant is based upon the fact that the officers and stockholders of the defendant company, who, with their families, occupy the premises in question from time to time, are Jews, and that it is the purpose of the complainants to exclude them from Monmouth Beach for this reason.

The evidence submitted on the part of the complainants to sustain their allegation of violations of the restrictive covenant is to this effect: that during the summer of 1923 the use and occupancy of the defendant’s property was not objectionable, but that in the summer of 1924 the dwelling-house was occupied by a number of families far in excess of the normal capacity of the house; that, as a result thereof, the sewage and drainage system was overtaxed, the cesspool overflowed, so -that an intolerable condition existed on the premises and resulted in protests on the part of the municipal authorities; that there are too many beds in the house, in some instances as many as two or three beds in one room, and that at times some of the occupants of the house slept on the porch; that the occupants at times have community affairs with singing, with fifty or sixty voices; that many automobiles are parked on the lawn at times, and that a large garage for the accommodiation of the automobiles of the occupants, which garage is described as a “shed,” has been erected in the back yard; that some of the children played baseball in the yard on Sunday, and that, in general, the occupants talked, sang and laughed in a boisterous manner; that the dwelling-house was intended as a one-family house, and that the use of the house by so many people should not be permitted; that the occupants at times sat upon the veranda in their bathing suits and shirt sleeves, and that they would parade the streets while clad in their bathing suits in front of complainants’ property when going to and from the bathing beach.

On behalf of the defendant, the evidence showed that the officers and stockholders of the defendant company were fou la-teen in number, nearly all Hebrews, most of them professional men and others engaged in mercantile business in New York City; that the property was first purchased with the idea of using it as a business enterprise, but when the officers and stockholders found that they could not make much of a business enterprise out of it, they decided to use it as a summer residence for themselves and their families. Consequently, during the summers of 1923 and 1924 the officers and stockholders of the corporation sent their families there, and the place was operated on a sort of community or club plan, each person contributing his proportionate share of the expenses. Not all of the officers and stockholders and their families were at the house at any one time, they, apparently, alternating; the greatest number of people being there at week-ends and on holidays. Many of the officers and directors of the defendant company testified at the hearing in this cause, and the highest estimate of the number of people who occupied these premises at any one time was from twenty-five to thirty. They admitted the overflowing of the cesspool, but explained it by saying that one of the drain pipes was broken by an automobile driving over it; that they had some difficulty in having it repaired, and that, pending repairs, the conditions complained of existed. Everybody agreed that this condition had been remedied at the time of the trial. . Defendants admit that they at times had music and singing on the premises, when all of the occupants who could sing, or who thought they could, joined in the singing of popular airs; that there were present some artists of note who had performed for the entertainment of the occupants of the dwelling, but claimed that the noise from these musical affairs was npt unusual nor more annoying to their neighbors than was the music and singing at complainants’ home annoying to them. They denied that more than two beds were contained in any one of the bedrooms of the house, and that that was only where arrangements were made for the children to sleep in the same room with their parents. Defendant admits advertising the place for rent to colored people, but claims that, as a matter of fact, it never had any intention of so doing; that the advertisement was placed in the paper as a result of a threat on the part of the complainants to drive the defendant out of town.

It is difficult to determine just how the complainants find a violation of the restrictive covenant resulting from the act complained of. It is urged that the use to which the property of the defendant is put has resulted in a depreciation in the value of surrounding property, and that, therefore, this use is in violation of the covenant. This covenant has already been construed and explained by this court in DeGray v. Monmouth Beach Club House, 50 N. J. Eq. 329, where Vice-Chancellor Green, in an elaborate opinion, analyzed the whole covenant. There an injunction was asked against the erection of a large bathing pavilion on the beach front, which it was alleged was a violation of the covenant. The injunction was denied, however, on the ground that the covenant did not prohibit the erection of such a building, and that, as the erection of the building was not in violation of the restriction, relief could be had only upon a showing of improper use of that building, such as would constitute a nuisance. In that case the court said, at page 346:

“I do not think the inhibition of particular kinds of business which, with the possible exception of a hotel, may be classified as tending to impair health or comfort, or to be injurious to the morals or peace of the neighborhood, is to be considered as limiting the general provisions at the end of the covenant to uses of the character of those specified.
“Nor do I think the general clause is to be given a construction that would forbid any use which in any degree might unfavorably affect the value of neighboring property.”

And at pages 347, 348:

“There was nothing in the scheme, or in the covenant, regulating the size, style, cost or position of dwellings, nor requiring the improvement of the lots. The original proprietors bought for the purpose of putting up comfortable yet inexpensive summer houses. It was, in the words of the complainant, to be a ‘poor man’s home or paradise.’
* * * * * :fc *
“The beautiful lawns and the palatial villas which have been since constructed were not within even the dreams of the promoters of the enterprise.
“Yet there, is nothing to control an owner there in the character or quality of his dwelling except his tastes and his means. He may put up a shanty or a hut and occupy it as his abode, without violating his covenant, even though a want of style and unsightliness may have the effect to make his neighbor’s property less desirable as a residence.
“Certainty, the erection of a stable on a lot must depreciate the value of adjoining property for a dwelling-house, and such value would be practicalty destroyed if the stable was built upon a street upon which the owner of the adjoining lot desired to erect his dwelling. In this case the complainant has placed his stable on Ocean ovenue. It must seriously impair the value of the defendant’s lots for dwelling purposes, and, incalculably so, if they, for any reason, wished to build a house on or near the avenue. Notwithstanding this fact, it cannot be said that in doing this complainant has violated his covenant, for the scheme of the original proprietors contemplated the building of stables by the owners of lots anywhere on the tract of four hundred acres. Access to the railroad depots was only practicable by means of conveyances with horses, and each lot owner was expected to have his own turnout, humble though it might be.”

And at pages 348, 349 :

“It seems to me plain that unless the use which may, to some extent, depreciate the value of neighboring property for dwelling purposes, is one which runs counter to the original purpose of the promoters of the scheme, who exacted the covenant, it is not to be regarded as violating its restrictions.”

And at page 350:

“I see nothing to prevent the owner of a house on one lot erecting his bathhouse on another and unimproved lot if he is the owner or the lessee, and if the dwelling-house was occupied, as is one of the complainant’s, as a boarding-house, it would be competent to erect on such lot, or on an adjoining one, bathing-houses of sufficient number or one of sufficient size to accommodate all of the occupants or boarders, including servants of said boarding-house.”

And at page 351:

“There is nothing in this covenant that restrains business except of certain kinds.”

And at page 353:

“Complainant objects to the great number who bathe adjoining his property, the noise which they make, the presence of the bathers in their bathing clothes on the beach, and other similar objections. Such conditions are the almost invariable incidents of parties bathing on the seashore. The annoyance therefrom, if any, is one which would affect a person in a greater or less degree, according to his temperament, but the abuse of the privilege might be so great as to give a neighbor the right to have it abated as a nuisance. While there may have been occasions when the patience and good nature of the complainant may have been much tried, and, when he had just ground of complaint, I do not think the evidence shows that the use, so far, by the defendants of this lot for bathing, has been such as to render them sxxbject to an injunction for maintaining an actionable nuisance, as causing 'an inconvenience materially interfering with the ordinary comfort, physically, of human existence, not merely according to elegant and dainty modes and habits of living, but according to the plain and sober and simple notions among the people,’ ”

I have quoted thus largely from Vice-Chancellor Green’s opinion in the DeGray Case, because in that opinion he touches the principle upon almost every phase of the instant case, and I feel that I am bound by that decision. But a careful reading of the covenant rather indicates, to my mind, that the acts and conduct of those who use and occupy this defendant’s premises, and which are the subject of this complaint, do not come within the prohibitions of the covenant at all. It will be noted that the covenant is not to "erect or permit upon any pari of said land any hotel * * * or building for the curing of fish, or for any other uses or purposes that shall depreciate the value of the property for dwelling-houses.” The inhibition is against buildings intended for certain uses, and, as I read the covenant, unless it can be determined beforehand that the building is intended for a use specifically prohibited or a use that will depreciate the value of adjoining property, the building is not objectionable. The restriction is not against the use to which the lot is to be put, but is against the erection or permitting on 'the lots of buildings intended for particular purposes. It is strictly a building restriction. It is not a covenant against nuisances and trade, and applying the rule of strict construction, which it is uniformly held should be applied to covenants of this character, I apprehend that, if relief is to be granted in this case, it must be granted on the ground that the defendant is maintaining a nuisance, and not that its conduct and use of its propertjr is in violation of the restrictions. As I have indicated above, there is, however, no specific charge of a nuisance in the bill of complaint, but I shall, nevertheless, consider the evidence as though there had been a specific charge of maintaining a nuisance by the defendant.

What, then, are the specific facts which might be alleged to constitute a nuisance? First, that the defendant permits a large number of persons to occupy its dwelling-house. The testimony is conflicting on the point as to the maximum number of persons that have occupied the dwelling at any one time, complainant claiming there were from seventy-five to one hundred people there, and defendant claiming the number to be not more than twenty-five or thirty. I am inclined to accept the defendant’s estimate, as the officers of the defendant who testified certainly had a better opportunity to determine the number of occupants of the dwelling than would the witnesses for the complainants, and I am inclined to believe that the complainants’ ideas of numbers were somewhat exaggerated by their state of mind. I know of no law, however, which would permit this court to limit the number of persons who might occupy any particular dwelling-house which was not subject to the Tenement House act, and there is no claim here that this dwelling is subject to that act. Certainly, this court cannot control a man in the number of guests he may have at his home nor in the number of members of his family who may occupy his home. If a bathhouse may be used by the “owner, his family and his friends,” without restriction as to number, as was held in the DeGray Case, why cannot a dwelling-house? Nor can the objection that the occupants of this dwelling are Hebrews, and that they sit on the porch in their shirt sleeves and bathing suits have any weight, and an examination of the bill of complaint show that this is really the gravamen of the offense charged, for the bill states that the defendant’s house is being “used as a boarding-house for people of a very objectionable type.” But it was held in the DeGray Case that a boarding-house did not come within the purview of the covenant. And there is nothing in the covenant nor in the laws of this state which prohibits members of the Jewish faith, or any other faith, from purchasing and owning land on this tract and living thereon. And even if such prohibition did exist, I should be obliged to hold it unconstitutional and void. Even the expressed intention of leasing the property for a home for colored people is not, in my judgment, a ground for injunction.

■. The use of the street by bathers clad in their bathing suits is, perhaps, more properly a matter to be regulated by municipal ordinance than by the restraining order of this court. In fact, some of our seashore municipalities have already adopted this course — others not — depending to some extent upon the whim of the city fathers. The decision in the DeGray Case clearly holds that it was the intention of the promoters of this tract that ocean bathing should be freely enjoyed by all. And it would be a far stretch of the powers of this court, in this day of one-piece bathing suits, to hold that the defendant was guilty of maintaining a nuisance, because the occupants of its cottage walked the streets clad only in their bathing costumes. It may be that the bather of yesteryear, clothed in the bathing costume of 1871 (the date of the covenant), was a less objectionable sight than the bathing beauty of to-day. But judging from the popularity of the bathers’ parades staged at some of our seashore resorts, the modern bathing beauty is not so uniformly objectionable to the eye as to justify the exercise of the injunctive powers of this court in excluding bathers from the streets of a seashore resort.

The erection of garages on defendant’s property for the accommodation of the occupants of the dwelling-house is not a violation of the covenant, nor does it constitute a nuisance. What Vice-Chancellor Green said in the DeGray Case with reference to stables is particularly applicable to this phase of the complainant’s case. Automobiles have supplanted the horse to a great extent, and garages have been substituted for stables. It is probable that the conditions resulting from the break in the sewer, if maintained, would be considered a nuisance, but it is admitted by all the parties that this condition has been remedied; nor does the fact that two or more beds were set up in some of the bedrooms in this dwelling-house warrant this court in finding it a nuisance. While such a condition, persisted in, might be an unhealthy one for the occupants of the room, I do not see how it could interfere materially with the neighbors, nor that the neighbors have any valid ground for objection; nor do I think the fact that some of the occupants slept on the porch at times (if they did, which is denied), can be held to be a nuisance. Sleeping porches are quite common in these days, and if persons may sleep on a porch designed for that purpose, without objection, why not on anjr porch, so long as they comport themselve with decency? Nor can I say how many popular songs may be sung in a private residence of an evening or how much music or what kind may be produced there, or whether those songs must be rendered in English or Yiddish. It is quite true that a class of music which may be entertaining to one may be annoying to another, but those who enjoy the modern jazz cannot be restrained from producing it because it offends the classical ear; nor is it possible to restrain irrepressible youth, which must give vent to its excess energy in games played on Sunday. I do not mean to intimate that excessive noise or boisterous conduct in the defendant’s dwelling, if amounting to a nuisance, could not be restrained by this court. Even jazz or classical music might be produced to such an extent as to become a nuisance, and games might be played with such zest and vigor, and for such a length of time as to materially interfere with the occupancy of complainants’ homes, and to such an extent as to warrant injunctive relief. But the noisy conduct complained of here is, to my mind, nothing more than might be expected in a seashore home occupied by a considerable number of persons seeking recreation and pleasure. There is no testimony indicating that the occupants of defendant’s cottage did not comport themselves with decency, and, apparently, there was no disturbance requiring the intervention of the police. It is quite plain that what the complainants really object to in this case is that the officers and stockholders of the defendant company and their families are not in the social class of the complainants. This is shown by the statement of one of the complainants, when he said: “I cannot very well describe it, except that you cannot see it any other place along the coast where people sit on the veranda in their bathing suits and shirt sleeves, and their whole appearance is that of what might be called ‘rabble.’ ” The complainants, perhaps, are, in their habits of living, more elegant and dainty than the occupants of the defendant’s property. They represent, apparently greater wealth, and are able to maintain a higher standard of living than is within the means of the defendants; but conditions alleged to constitute a nuisance must be gauged, “not merely according to elegant and dainty modes and habits of living, but according to the plain and sober and simple notions among the people.” There is no evidence in this case which would warrant the court in finding that any depreciation in the properties in Monmouth Beach has resulted from the occupancy of the defendant’s property by its officers, stockholders and their families, on the contrary, the testimony which was directed to this point indicated that there had been no lessening in rental values nor any vacancies resulting from defendant’s conduct. No sales were indicated at a less price than might have been obtained prior to defendant’s advent. I find no evidence to warrant me in finding that the restrictive covenant has been violated, nor is there sufficient evidence on which to base a finding of nuisance. I shall, therefore, advise a decree dismissing the bill of complaint.


text:
    George G. Vogel, complainant, v. Mary Sloan et al., defendants.
    [Heard October 2Sth, 1925. Submitted November 2d, 1925.
    Decided November 2d, 1925.]
    1. Mechanics’ lien laws are, as a rule, to be construed strictly against a claimant and in favor of tlie owner of the land in so far as they require the owner to pay a debt that he did not contract, and for a consideration that he may have already paid to the contractor, but the section of the act concerning stop-notices should be liberally construed in favor of the claimant in order to effectuate the object of the statute so long as it does not work a hardship on the owner.
    2. Where a stop-notice was served on the architect of the building in the absence of the owner from the state, and the architect handed the notice to the owner immediately on his return, and four days before any other stop-notice was served on the owner, the claimant under that notice is entitled to priority in payment.
    On bill of interpleader.

      Messrs. Smith & Slingerland, for the complainant.

      Mr. Joseph Susshind, for the defendant Hawthorne Sash Door Company.

      Mr. Frederick Stoddard, for the defendant Newark Parquet Elooring Company.

      Mr. Nicholas IF. Bindsell, for the defendants Nich. Monticello, Carl Schroeder, Jr., George A. Hapler, Gus Schroeder.

      Mr. Charles Basile, for the defendant Edward R. Amend.

      Messrs. Schwartz & Schwartz, for the defendant the Townley Company.

      Mr. Harry A. Augenblick, for the defendant Heidritter Lumber Company.

      Mr. Frederic A. Bitger, for the defendant Joseph A. Bubet.
   Berry, V. C.

This is an interpleader suit under the Mechanics’ Lien act. The defendant Sloan, by contract in writing and duly filed, agreed to build a house for the complainant for $12,000. He defaulted on his contract and complainant was obliged to complete the work, after which there remained a balance of $827.71 due Sloan under the contract. Numerous stop-notices were given to complainant by mechanics, subcontractors and materialmen having claims aggregating $3,663.37. Hence this suit. The sole question here involved is as to the priority between the claim of the defendant Newark Parquet Flooring Company and that of Heidritter Lumber Company. No question as to the priority of other claims is involved. The testimony shows, that the Newark Parquet Flooring Company, on May 14-th, 1925, served a stop-notice on the architect employed by the complainant, Yogel, who was the owner of the building involved; that at that time the complainont, Yogel, was in Massachusetts, where he remained until May 29th, 1925. The officer of the claimant who served the notice on the architect was unable to locate the complainant, and, on inquiry, found that he was out of the state, and thereupon delivered the stop-notice to the architect as mentioned above. Immediately upon Dr. Yogel’s return the architect delivered the stop-notice to him. On the same day, or within a day or two thereafter, the officer of the claimant who gave the notice to the architect called on the complainant personally, told him of the stop-notice and asked if he had received it. The complainant replied that he had received it from the architect and that he understood its purport. The stop-notice of the complainant Heidritter Lumber Company was served upon the complainant on June 3d, 1925. It is clear, therefore, and, in fact, undisputed, that the stop-notice of the claimant Newark Parquet Flooring Company came into the actual possession of the complainant at least two clays prior to the service of the stop-notice by the claimant Heidritter Lumber Company.

The solicitor of Heidritter Lumber Company insists that the claim of that company is entitled to priority because the stop-notice of Newark Parquet Flooring Company was not properly served within the meaning of section 3 of the Mechanics’ Lien act (Comp. 8Lai. p. 8894), and cites, in support of his argument, the case of Lloyd v. Connella, 94 N. J. Eq. 322. It is admitted that the stop-notice of Heidritter Lumber Company was properly served.

The contention of counsel for Heidritter Lumber Company is that section 3 of the Mechanics’ Lien act requires service of a stop-notice upon the owner personally, or, at least, upon an agent of the owner authorized to accept such service, and that the architect here was not the agent of the owner and had no authority to accept service for him. That portion of section 3 of the Mechanics5 Lien act pertinent to this inquiry reads as follows:

“And it shall be the duty of such * * * materialman or subcontractor to give notice in writing to the oivner or owners of such building * * * and of the amount due to him or them and so demanded.”

Liens perfected under this section are payable in the order of priority of service of notice, and not pro rata. Board of Education v. Tait, 80 N. J. Eq. 94; affirmed, 81 N. J. Eq. 161.

The purpose of section 3 of the Mechanics5 Lien act, above cited, I apprehend, is to secure to materialmen, subcontractors, &c., payment of their bills so far as possible upon default by the contractor.

In McNab & Harlan Manufacturing Co. v. Paterson Building Co., 72 N. J. Eq. 929, the court of errors and appeals held that while the “mechanics5 lien laws are, as a rule, to be construed strictly against the claimant and in favor of the owner of the land in so far as they require the owner to pay a debt that he did not contract and for a consideration that he may have already paid to the contractor,55 * * * “no such strict construction should be given to the provisions of the third section of our Mechanics5 Lien law.55 In other words, that section of the act should be liberally construed in favor of the stop-notice claimant in order to effectuate the object of the statute so long as it does not work a hardship on the owner.

In the case of Lloyd v. Connella, supra, the facts were that the stop-notice was served upon an employe of an attorney who, as attorney for a building and loan association mortgagee, was disbursing the mortgage funds, and, incidentally, for the purpose of such disbursment, represented the owner-mortgagor. Vice-Chancellor Foster held in that ease that the person upon whom the stop-notice was served was not the agent of the owner, and that, therefore, the service was void as against other claimants who had subsequently properly served the stop-notice upon the owner.

That case is easily distinguishable from the case at bar. The facts here are entirely different, and I do not understand the court to there have held that service of the notice must necessarily be a personal service. It will be noted that the act requires the materialmen, &c., “to give notice in writing.” How such notice is to be given is not specified, nor does the statute say that the notice shall be “served.” There is, in my judgment, a difference in the “giving of notice” and the “serving of notice,” as understood in legal parlance. Notice may be “given” in many different ways, and, after notice is received, it matters not how it is “given;” but the service of notice requires greater formality, depending in almost every case upon the requirements of some particular statute; and, indeed, it seems to be conceded by all parties in this case that technical “service” of a stop-notice is not required, as the first stop-notice from any claimant received by the owner was received by him by mail while he was in Massachusetts, and it is conceded that this stop-notice entitled the claimant to priority over all other claimants. However, it will be noted that in the instant case the stop-notice was handed to the architect in charge of the building by an officer of the claimant during the absence of the owner from this state and after the claimant had searched for the owner and been unable to find him. The notice was given to the owner by the architect immediately upon his return', and, at least, four days prior to service of the stop-notice of the Heidritter Lumber Company. At least two days before the service of the Heidritter Lumber Company notice, the officer who served the Newark Parquet Flooring Company notice on the architect personally saw the owner, evidently to make sure that the stop-notice had come to the owner’s hands, and the owner then acknowledged to the claimant the receipt of such notice. If the giving of notice by mail is sufficient (and, as above stated, this is conceded), then why not service by special messenger ? Here, the least that can be' said is that the service was by messenger, namely, the architect. It is unnecessary, in the view I take of the matter, for me to decide whether or not the architect was the agent of the claimant or the owner, or of either. The fact is that the owner had actual written notice of the claim of the Newark Parquet Flooring Company four days before he received notice of the claim of Heidritter Lumber Company. Unquestionably if, when the claimant saw the owner after his return from Massachusetts, he had said to him, “return the notice to me that I may serve it upon you,” and this request had been forthwith complied with and the claimant had immediately thereafter handed the notice back to the owner without more, such notice would have been good, and, if this is so, why require the claimant to go through with that useless formality? What more effectual notice of the claim could have been accomplished? The real test, in my judgment, is whether or not the owner has received written notice of the claim. Undoubtedly, the owner here had actual written notice of the claim of Newark Parquet Flooring Company several days before the notice of the Heidritter Lumber Company. I am, therefore, of the opinion that the claim of Newark Parquet Flooring Company is entitled to priority over the claim of Heidritter Lumber Company, and I will advise a decree in accordance with these conclusions.


author: Leaming, Vice-Ordinary.

text:
    In the matter of appeal from the decree of the orphans court for the county of Camden, admitting to probate a certain paper-writing as the last will and testament of Charles Sutterlin, Sr., deceased.
    [Submitted March 30th, 1925.
    Determined April 16th, 1925.]
    1. No court has power to declare that any one of the statutory requirements for the execution of a will can be dispensed with.
    2. A testator signed his will in the presence of one witness, who at testator’s request signed the attestation clause; some live or ten minutes later the other witness came in the same room, and in the presence of tlie witness who had already signed was told by the testator that the paper he had was his will, and that he desired him to witness .it; after reading the will the witness signed the attestation clause in the presence of the other witness and the testator. This was an acknowledgment of the signature by testator in the presence of two witnesses, and a compliance with the statute concerning the execution of wills.
    On appeal from the Camden county orphans court.

      Mr. J oseph E. Carr, for the appellant.
    • Mr. Grover C. Richman, for the respondent.
   Leaming, Vice-Ordinary.

The provisions' of our statute touching the execution of a will (I/. Comp. Slat. p. 5867 § &4) are explicit and clear, and can be read in but one way. The will must be in writing. It must be signed by testator. The signature must be made by testator in tlie presence of two witnesses present at the same time, or, in lieu thereof, testator may acknowledge that he made the signature; but such acknowledgment by testator must be in the ¡iresence of two witnesses present at the same time; the writing must be declared by testator to be his last will; that declaration must be in the presence of two witnesses present at the same time; these witnesses must subscribe their names as witnesses to the will in the presence of testator. No court has power to declare that any one of these statutory requirements can be dispensed with.

. The signature to the 'will here in question was made by-testator, but it was not made by him in the presence of both of the subscribing witnesses. The inquiry thus arises in this appeal whether, in the presence of the two subscribing witnesses present at the same time, testator acknowledged that he made the signature.

The only testimony that has been introduced touching whai occurred at the execution of this will is that of the two subscribing witnesses, and their testimony in no way is in conflict.

The'facts disclosed by their testimony are that the will was signed by testator at the end of its testamentary provisions in the presence of Robert G. Voigt, one of the subscribing witnesses, and at testator’s request, then was signed by Voigt as a witness below the attestation clause and in the presence of testator, testator at the time declaring to Voigt that it was his will. No one then was present except Voigt and testator. Eive or ten minutes after testator and Voigt had signed, Oscar S. Hartman entered the same room. Hartman’s testimony is that when he entered the room testator and Voigt were sitting at the dining-room table with the will lying on the table, and testator then handed it to him, Hartman, saying, “This is my will and I would like you to witness it;” that he, Hartman, then read the will and signed it as a witness and handed it back to testator. Testator, Hartman and Voigt were all present during the period last referred to.

Prom the testimony of these witnesses it is clear that the will was signed by testator, but was signed by him in the presence of only one of the subscribing witnesses; that ic was declared by testator to be his last will in the presence of the two subscribing witnesses present at the same time; that each of these two witnesses subscribed, as such, in the presence of testator. But there is no testimony that testator further said to Hartman, in specific words, “I made that signature which you see appended to my will.”

This raises the question whether, in the circumstances already stated, the statement by testator in the presence of the two witnesses present at the same time, “this is my will,” accompanied by a request of testator that it be witnessed (testator theretofore having, in fact, signed the writing in the presence of one of them, and the other witness having read the will and necessarily having seen testator’s signature), satisfies the alternative requirement of our statute that the making of testator’s signature must be acknowledged by testator in the presence of two subscribing witnesses present at the same time.

It seems clear that, standing alone, the mere declaration of a testator to the persons who are to witness his will that “this is my will,” appropriately relates to and may be intended and understood to relate only to the specific requirement of our statute commonly referred to as the publication of the will. But, also, it seems clear that such a declaration and an accompanying request of testator that the will be witnessed may be surrounded by circumstances and conduct of the testator and the witnesses which will clearly impress upon the transaction not only a declaration by testator that the writing which already has been signed by him in his wall, but also an acknowledgment that he made the signature which at the time appears and is seen by the witnesses a,t the end of the typewritten document. Since our statute prescribes no specific form of words or manner in which the requisite acknowledgment must be made, it reasonably cannot be said that the statutory requirement is more than a requirement' that the words and conduct of testator shall be such as will clearly amount to an acknowledgment by him to the witnesses that the signature which is disclosed to them is his.

Tn England and in many of our states there exists, either by express statutory provisions or by construction, a similar alternative requirement that a testator must either sign in tire presence of the subscribing witnesses or acknowledge to them that the signature is his. The prevailing and almost uniform view appears to be that the validity of the acknowledgment of testator’s signature will depend upon the conduct of testator rather than his specific language, and that anything wdiich clearly amounts, in common understanding and reasonable construction, to an acknowledgment that the signature is his is sufficient; that when a testator produces his will for attestation with his name, in fact, already signed to it, and the witnesses see the signature, and testator declares to the witnesses that it is his will, and requests the witnesses to sign as witnesses, he acknowledges the signature to be his. And in some cases it is held that it is not essential in such circumtances that the witnesses actually see the signature, if, in fact, the will theretofore has been signed by testator. The maxim of Co. Litt. 36a, “not what is said, but what is done, is regarded,” is thus applied to the execution of wills as well as of deeds. In Gaze v. Gaze, 3 Curt. Ecc. 451, it is characterized as “hypercritical” to say that when a. paper-intended by testator as a will is, in fact, signed by him, and he asks a person to witness the will, that he does not “acknowledge” the making of the signature. The English statute of wills (1 Vict. ch. 26 § 9) requires that the signature of testator shall be “made or acknowledged by the testator in the presence of two or more witnesses present at the same time.” The following English cases under that statute disclose the general views above stated: Gwillim, v. Gwillim, 3 Sw. & Tr. 200; In the goods of Huckvale, L. R., 1 Pro. & Div. 375; Inglesant v. Inglesant, L. R., 3 Pro. & Div. 172, 176; In the goods of Ann Ashmore, 3 Curt. Ecc. 756; Gaze v. Gaze, 3 Curt. Ecc. 451; Keigwin v. Keigwin, 3 Curt. Ecc. 607; Danetree v. Fasulo, L. R. 13 Pro. Div. 102; see, also, 1 Wms. Ex. *75. The authorities in our several states are collected in 30 Am. & Eng. Encycl. L. (2d ed.) 588 591, and in 40 Cyc. 1121, 1122.

This general view appears to have been entertained, by Chancellor McGill, sitting as ordinary, in Stewart v. Stewart, 56 N. J. Eg. 761. In that case testator said to each of the witnesses: “This is my will. Do you recognize the signature as mine ?” Upon receiving an affirmative reply testator asked them to sign as witnesses. This was held to be a sufficient acknowledgment. At p. 764 of the reported case the learned chancellor says: “It was not necessary that the acknowledgment should be in words. It was sufficient if accompanied by unequivocal conduct upon his [testator’s] part.” Citing Ludlow v. Ludlow, 9 Stew. Eq. 597, 601. In Ludlow v. Ludlow, at the page cited, Mr. Justice Seudder, speaking for our court of errors and appeals, says: “But he [testator] must, by some word or sign, clearly indicate his recognition of the testamentary act in which he is engaged, and of the genuineness of the signature and will which are presented to the witnesses for their attestation. The words used in the statute, ‘acknowledgment’ and ‘declared,’ demand an open expression either in words or unmistakable acts, and we have no right to change their obvious meaning, or substitute conjecture for positive proof of conformity to their requirements.”

A similar view appears to have been entertained by Chancellor Runyon, sitting as ordinary, in Ludlow v. Ludlow, reported in 35 N. J. Eq. 480. At p. 489 he states as follows : “Reference was made on the hearing to the construction put upon a statute like ours by the courts of New York, who hold that where a testator produces a paper to which he has personally affixed his signature, requests the witnesses to witness it, and declares it to be his last will and testament, that is all that the law requires, and is a substantial acknowledgment of his signature. Baskin v. Baskin, 36 N. Y. 416; Gilbert v. Knox, 52 N. Y. 125. It is enough to say at this time, in that connection, that while I heartily approve of the principle which underlies and produced that construction— the principle of recognizing a substantial compliance with the statute as sufficient — there is no proof here of any acknowledgment whatever, either by word or in fact. The testator did not make the request.”

The facts in the case of Baskin v. Baskin, thus-approved by Chancellor Runyon, are strikingly similar to the facts in the present case. The statute of New York is as follows: “Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner: [1] It shall be subscribed by the testator at the end of the will; [2] such subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made to each of the attesting witnesses.” 2 Rev. Si. § 40. Gilbert v. Knox, 52 N. Y. 125 (at p. 129), specifically approves Baskin v. Baskin. Late cases in New York following the rule defined in Baskin v. Baskin (and citing other similar decisions of the New York court of appeals) are In re Bassett's Will, 146 N. Y. Supp. 842; In re Nussbaum's Estate, 144 N. Y. Supp. 443.

In the present case it seems impossible to escape the conclusion that testator fully met the requirements of our statute. IVhen a person signs a will with a purpose to give it effect as his will, and thereafter hands it, so signed, to a friend and declares it to be his will, and asks the friend to witness it ro the end that it may become effective as a will, and the witness then reads the will and necessarily sees the signature of testator at the end of the will which he is asked to witness, and in the presence of the testator signs it as a subscribing witness to give effect to it as a will and then returns it, so signed, to testator, the transaction is clearly intended by testator as an acknowledgment that the signature shortly theretofore made by him was his, and cannot reasonably be understood by the then subscribing witness;, or by the other subscribing witness then present, who had actually seen testator sign his name to the will, as other than an acknowledgment by testator that the signature was- his. The specific words “that is my signature” are wanting, but those words are as inherent in the transaction as though the specific words were spoken. The plain and only possible import of the words used by testator in the circumstances in which they were used was, “that is my signature, please witness it.” In any transaction other than the execution of a will it would be unhesitatingly said that the making of the signature was acknowledged in the presence of the two witnesses, present at the same time; our statute requires no more so far as an acknowledgment of the making of the signature to- a will is concerned.

The conclusion here reached renders it unnecessary to consider how far, in the circumstances of this, case, the pñma facie proofs of regularity ai'ising from the words of the attestation clause of this will may be effective to sustain the decree of probate entered in the orphans court.

The decree of the orphans court will be affirmed.


author: Lewis, Vice-Ordinary.

text:
    In the matter of the estate of John Lucey, deceased.
    [Decided April 27th, 1925.]
    1. The power of the orphans court to direct the payment of principal of an estate for the support, maintenance or education of a minor, is dependent upon the statute, which has reference only to a general statutory or testamentary guardian, and does not include payment to a guardian by nature.
    2. Where a will provides that the testator’s estate shall be held by trustees who shall pay such part of the income therefrom as they see fit for the care, maintenance and education of his children, the principal thereof to be distributetd among his children when they reach a certain age, and in case of the death of any of them before reaching the required age, the share of the one so dying shall be equally divided between the survivors, no one of the children now living is the absolute owner of his prospective share of the trust property, and it cannot be said that no other person has either a present or prospective legal interest therein, which is the test of the right of the court to warrant an encroachment upon the corpus for the benefit of a legatee, in advance of the time fixed 'by the testator for the payment of the bequest.
    On appeal from the Hudson county orphans court.

      Mr. Charles Hershenstein, for the appellants.

      Mr. Thomas R. Armstrong, for the respondent.
   Lewis, Vice-Ordinary.

This is an appeal from an order of the Hudson county orphans court, directing the trustees of the estate of John Lucey, deceased, to expend from the corpus of the trust fund such sum as may be required to add to the income therefrom in order to aggregate the sum of $2,100 yearly, to be used for the support, maintenance and education of three minor children of the testator, viz., Theodore, Frances and Margaret Lucey, aged, respectively, seventeen, twelve and eight years. At the time of testator’s death there were five children. In his will he provided that after the payment of certain legacies specified therein — ■

“All the rest, residue and remainder of my estate to my executors and trustees hereinafter named, to hold the same in trust for the following purposes.
“Second. To collect and receive the income from my estate and to expend the same or such part thereof as they see fit, for the care, maintenance and education of such of my children as survive me, whether now living or hereafter born, except my son John; and the said trustees are to have full power, discretion and authority in the matter of the expenditure of said income for the benefit of said children during their minority.
“Third. To pay over to my said children, except my son John, as aforesaid in equal shares, said principal, income and accumulations of said moneys, if any, as each child shall or may respectively arrive at the age of twenty-one years, except that the share of my son Theodore shall not be paid to him until he shall arrive at the age of thirty-five years, and then only upon the condition that my then acting executors and trustees are satisfied that my son Theodore is qualified to properly manage his share, but if not so satisfied, then the share of my son Theodore shall be held and distributed among my other children then surviving, except my son John, according to the terms and conditions of this will; and if my son Theodore should die before arriving at the age of thirty-five years, or in case of the death of any of my other children before arriving at the age of twenty-one years, then his or her share shall be equally divided among my other children then surviving, except my son John, share and share alike; but such portion accruing to any child still under age, or my son Theodore before he arrives at the age of thirtyi-five years, shall be held for his or her benefit until their majority, or in the case of Theodore until he arrives at the age of thirty-five years, in accordance with the provisions of this will.”

The trustees under the will are also the testamentary guardians of the persons and property of the infants. The net income from the trust fund is approximately $1,300 a year. The trustees have paid this entire sum for the support and maintenance of the children. Two of the five children have already reached the age of twenty-one years, and have been paid their proportionate part of the corpus as specified in the will.

The mother of the children, as their natural guardian, applied to the Hudson county orphans court, by petition, for an order requiring the testamentary guardian or trustees to pay an additional amount from the corpus of the trust fund, alleging that the income stated was not sufficient to provide for the needs of the three infant children, and that she had no means of her own to apply to their maintenance and education. An order was thereupon made by the orphans court directing the payment of an additional sum of about $900 per annum from the corpus. It is from this order that the present appeal is taken.

It is clear that the testator’s intent was that the payments for the benefit of the children should not only be limited to the income, but that only so much of that income should be paid to them as the trustees saw fit to expend for their care, maintenance and education. It is the settled rule, however, in this state, that encroachments upon the corpus of the estate of infant legatees, in advance of the time of distribution, are permitted in proper cases by a court of equity. Stephens v. Howard’s Executor, 32 N. J. Eq. 244; Pfefferle v. Herr, 75 N. J. Eq. 219; Smith v. Robinson, 83 N. J. Eq. 384. But, as stated by Vice-Chancellor Van Fleet, in Stephens v. Howard’s Executor, supra, at p. 247 of the report: “It is, however, a power of great delicacy, and should be exercised very sparingly, and with the utmost caution.” And further, that — “The source of the power it is easy to trace. It is found in the fact that the infant is the absolute owner of the property; no other person having either a present or prospective legal interest in it, and that if the present enjoyment of the property is •withheld the infant must suffer possibly for the advantage of some person who has no interest in the infant, and was never thought of by the testator as a possible recipient of his bounty.”

Can it be said in this case that any one of the three present infants is the absolute owner of his prospective share of the trust propertjr, and that no other person has either a present or prospective legal interest in it? By the plain terms of the will Theodore’s share is not to be paid to him until he reaches the age of thirty-five years, and if, at that time, the trustees should feel that he is not a proper person to receive the corpus, it is not to be paid to him at all, but it is ,to be divided pro raid, among the other children then surviving, and, in case of the death of either of the other two children before reaching the age of twenty-one years, then that share is to be equally divided among the other surviving children. If, therefore, the sum of $300 per annum should be paid from the corpses for the benefit of the nine-year-old child until she reached the age of twenty years, and she should then die, $3,300 of the corpus will have been expended upon her, which would otherwise, upon her death before reaching the age of twenty-one years, have been divided equally among the other surviving beneficiaries. They would thereby be deprived of so much of their clear share of the corpus. And so, also, with respect to the payments made from the corpus for the benefit of the other children.

I think, therefore, that the bequest of the residue of the estate to the trustees upon the trusts stated does not vest the legacies in the respective infants in a manner to make them the absolute owners of the property with no other person, having either a present or prospective legal interest m it, which is the test of the right of the court as indicated by Vice-Chancellor Van Fleet, supra, to warrant an encroachment upon the corpus for the benefit of a legatee, in • advance of the time fixed by the testator for the payment of the bequest. See, also, Gifford v. Thorne, 9 N. J. Eq. 702; Carter v. Bugbee, 92 N. J. Law 390 (at p. 393).

It is to be further noted that the power of the orphans '" court to direct the payment of the principal for the support, maintenance or education of a minor has reference to a general statutory or testamentary guardian, and not to simply a guardian by nature, and is based upon sections 3 and 19 of the “Act concerning guardians.” 8 Comp. Stat. pp. 8688, 8688. Those sections provide for an application by the guardian of the infant, and in the present case no application was made by such guardian. The natural guardian who made the application to the Hudson county orphans court is not within the statute. Graham v. Houghtalin, 30 N. J. Law 552; In re Barry, 61 N. J. Eq. 135; Pfefferle v. Herr, supra.

I am, therefore, of the opinion that the order of .the Hudson county orphans court, under review on this appeal, should be reversed, and I will so advise.


author: Buchanan, Vice-Oedinaey.

text:
    In re estate of Ralph E. Miller, deceased.
    [Decided May 14th, 1925.]
    1. Where the determination. of the comptroller, that a gift by decedent in his lifetime was made in contemplation of death, is against the clear weight of the evidence, it is error, and .transfer tax assessed on such basis will be set aside.
    2. Executors’ commissions, under New York statute, being allowed on sums received and paid out by the executors, no commissions in respect of gift by decedent in contemplation of death are deductible in computing transfer tax assessable under New Jersey statute against estate of New York decedent.
    On appeal from transfer inheritance tax assessment. On final hearing.

      Messrs. Burnett, Sorg, Murray & Duncan, for the appellant.

      Mr. Edward L. Kaizenbach, attorney-general, for the state.
   Buchanan, Vice-Oedinaey.

This is an appeal by the executrix and residuary legatee of Ralph E. Miller, deceased, from the transfer inheritance tax assessed against decedent’s estate by the comptroller. Decedent was a non-resident of New Jersey, but had stock in New Jersey corporations, so that a tax was assessable under section 1, subsection 3 of our statute, and was computed in accordance with the so-called “ratio clause” in section 12 of the act.

In computing the tax the comptroller included as taxable transfers certain gifts made by decedent to his wife during a period of some five years prior to his death, and aggregating $304,610, on the ground that they were gifts made in contemplation of death. A part only of these gifts was stock of Hew Jersey corporations, but the comptroller correctly acted in including all property which had been transferred in contemplation of death, as a part of decedent’s entire estate in determining the several members of the statutory proportion provided in the “ratio clause” of section 12 aforesaid.

This latter is, indeed, tacitly conceded by appellant, for, although one of the grounds of appeal specified in the petition is that the assets which were transferred by these gifts were outside the jurisdiction of the State of Hew Jersey, and not subject to taxation by Hew Jersey, since decedent was a non-resident, this ground was abandoned on the argument.

Two issues only were submitted by appellant’s brief — first, that none of the gifts mentioned were made in contemplation of death, and second, that if any of such gifts were made in contemplation of death, a deduction should have been allowed (in determining decedent’s entire estate) for executrice’s commissions in respect of the augmentation of the estate by including such gifts.

Decedent died January 16th, 1923, at the age of fifty-one, leaving an estate (exclusive of the $304,610 in question) of about $659,000. He was president of two corporations (the Crown Corset Company and H. & W. Company), receiving salaries aggregating some $60,000 per jrear. He was married in 1903, and a year afterwards gave his wife $3,000, saying' it was half of what he had saved that year, and did the same the next year, saying he meant to continue so doing. He did continue such gifts in increasingly larger amounts, until the gift in 1912 was $10,000. From that time the gifts were as follows:

May 1st, 1912 — H. & W. bonds, par value.............. $10,000.00
June let, 1913 — H. & AV. bonds, par value.............. 19,000.00
Prior to 1916 — New York City bonds.................. 25,000.00
March 1st, 1917 — 300 shares H. & W. preferred stock (representing stock dividends) ..........,................ 30,000.00
May, 1917 — Federal Land Bank Bonds................. 50,000.00
Prior to 1918 — Bonds, Chicago, Milwaukee and St. Paul.. 10,000.00
Prior to 1919 — Crown Corset Co. bonds, par............ 40,000.00
January 9th, 1921 — Bonds, City of Chicago, 4%......... 50,000.00
December 1st, 1921 — Treasury Department, 5%% certificate of indebtedness ............................... 50,000.00
September 17th, 1922 — 398 shares H-. & W. Co. preferred stock (stock dividend) ............................. 39,SOO.OO
November 1st, 1922 — 597 shares II. & W. Co. preferred stock (stock dividend) ............................. 59,700.00
January 11th, 1923 — H. & W. Co. dividend check........ 10,110.00
January 12th, 1923 — Crown Corset Co. dividend check... 55,000.00

The last seven of these gifts are the ones determined by the comptroller to be taxable as in contemplation of death.

Except with regard to the last two of these gifts ($10,110 on January 11th, 1923, and $55,000 on January 12th, 1923), made four or five days before his death, practically contemporaneously with the making of a will, and after a serious illness commencing November 15th, 1922, I am constrained to find that the determination of the comptroller is against the strong weight of the evidence; that the evidence in support of such finding is, at least, in view of the strong evidence to the contrary, insufficient to sustain such finding,-and, hence, that the comptroller has erred in including those gifts in his computation of the tax.

As to the last two gifts, aggregating $65,110, I find no error in the comptroller’s finding.

Neither do I find any error in respect of the second ground of appeal mentioned. Appellant is entitled to have the comptroller deduct, in computing the value of decedent’s estate, the amount of executor’s commissions, for the tax is imposed only in respect of the amount of estate, which is, ultimately, transferred. In re Dellinger, 94 N. J. Eq. 409 (at pp. 416, 417); In re Christie, 87 N. J. Eq. 303. But such commissions are not deductible until they have been ascertained, fixed and allowed by the probate court. In re Christie, supra. It is evident that no commissions will be or can be allowed by the probate court with respect to the gifts in question, for it appears by the evidence that, under the laws of New York (in which state decedent was domiciled and his estate is being administered), the commissions are allowed on sums received and paid out by the executor. It is obvious that the executrix has not received nor paid out, and cannot receive and pay out, these antecedent gifts, and, hence, will not be entitled to commissions thereon.

The tax will be set aside and the record remitted to the comptroller for reassessment.


author: Gummeeb, Chibe-Justice.

text:
    Charles S. Corson, respondent, v. Clara Rose Bailey, appellant.
    [Decided May 18th, 1925.]
    The provision of section 61 of our Chancery act, which permits the allowance to the defendant of “all just set-offs” in ascertaining the amount due to the complainant in a foreclosure suit, confines such allowance to debts due from the complainant to the defendant. It does' not include a right in the defendant to have deducted from the amount of the mortgage debt claims for unliquidated damages.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Ingersoll.

      Mr. Lee F. Washington, for the appellant.

      Mr. Clarence Cole, for the. respondent.
   The opinion of the court was delivered by

Gummeeb, Chibe-Justice.

This is a foreclosure suit. The defendant, Clara R, Bailey, on the 19th of November, 1921, executed a note to the complainant, secured by a mortgage, in the sum of $2,600, payable within two years from date. The complainant admits in his bill payments on account of the principal of this note totaling $1,300, and the suit is brought to enforce the payment of the balance still remaining due. The defendant set up in her answer that the mortgage had been obtained from her by fraudulent representations made to her by the complainant, and that there was, in fact, nothing due thereon from her to him. She also set up by way of counter-claim that, prior to the making of the mortgage, the complainant had been employed by her to make certain alterations and additions to the dwelling-house upon the mortgaged premises; that she had paid him considerable sums for the work to be done and the materials to be furnished by him on the building, and then asserts that he never fully performed his contract, but left the work uncompleted, by reason of which default she had been caused a considerable financial loss, and prayed a decree fixing the damages so sustained by her and directing their deduction from the mortgage debt, if it should be considered that it was a valid obligation against her. Vice-Chancellor Ingersoll, before whom the cause was heard, concluded that the mortgage debt was a valid obligation against the defendant, and advised a decree of foreclosure for the unpaid principal thereof. He also held that the counterclaim should be disallowed, for the reason that it could not be set up as a defense in a foreclosure proceeding. From the decree entered in accordance with these views the defendant has appealed.

The first ground upon which a reversal of the decree under review is sought is that the proofs support the appellant’s claim that the mortgage was obtained by fraud, and is, for that reason, null and void. It is sufficient, in disposing of this ground of appeal, to state that our examination of the proofs in the cause satisfies us that this claim is not justified by the facts, and that, consequently, the respondent was entitled to a decree establishing his right to the unpaid balance of the mortgage debt.

It is further argued before us that the court of chancery committed legal error in refusing to entertain the appellant's claim for damages, and to permit them, when ascertained, to be credited on account of. the mortgage debt. This contention, also, we think, is without merit. In the absence of a statutory provision to the contrary, the defendant in a foreclosure suit cannot set up in that suit, by way of satisfaction of the mortgage in whole or in part, a debt owing to him from the complainant, or a claim for unliquidated damages which he has against the latter, unless there be an agreement between the parties that such debt or claim shall be received and credited as payment. Parker v. Hartt, 32 N. J. Eq. 225; S. C. on appeal, Id. 844. This rule of law was modified by the legislature subsequent to the promulgation of the opinions in the cited case by an amendment of the Chancer y act passed in 1902, which provides that “in all,foreclosure suits, where the amount due on any mortgage is in issue, all just set-offs shall be allowed in ascertaining the amount due in the same manner and to the same extent as like set-oifs are allowed in actions at law.” Chancery act § 61; Comp. Stat. p. 488. The question to be determined, therefore, is whether the defendant’s claim for damages which are unliquidated, comes within the scope of this enactment — that is, whether it was intended thereby that such a claim should be embraced in the term “set-off.” We consider that it was not: and for the reason that the legislature many years earlier had defined a set-off as the right of a person who is sued by his creditor for a debt due to such creditor to set-off against the latter’s demand “a debt not being for unliquidated damages” due and owing to him from the creditor (An act concerning set-offs, Comp. Slat. p. 4886); and that body is presumed to have used the word in the later statute as defined by it in the earlier enactment. It was for this reason (although not expressed) that this court in the case of Commonwealth Title Co. v. New Jersey Lime Co., 86 N. J. Eq. 450, decided in 1916, approved the statement contained in the opinion promulgated by the court of chancery in that case that “unliquidated damages are not the proper subject-matter of a set-off in a foreclosure suit under existing laws.”

For the reasons indicated we conclude that the decree under review should be affirmed. .

For affirmance — The Chibp-Justice, Trbnchard, Parker, Minturn, Kalisch, Black, Katzenbach, Lloyd, White, Yan Buskirk, Clark, McGlennon, Kays, JJ. 13.

For reversal — None.