author: Emery, Y. C.

text:
    The Ferry-Hallock Company v. The Progressive Paper Box Company et al.
    [Decided May 19th, 1909.]
    1. Where an issue was not precisely raised, nor expressly decided by the court, the decision was not conclusive on the issue.
    2. A representation by a patentee that a certain thing is covered by his patent, made in good faith while bargaining with another as to a license, is not a representation of a fact on which the latter may rely, so that he cannot, on subsequently proving the falsity of the representation, repudiate the license.
    3. A licensee who uses a patent is estopped from denying the licensor’s title.
    4. A licensee under a patent, who for fraud or otherwise has the right to repudiate the license, cannot repudiate it in part and claim under it in part.
    On bill, answer, cross-bill and replication.

      Mr. William Read Howe (Messrs. Howe & Davis, solicitors) and Mr. Bull (of the New York bar), for the complainant.

      Mr. Philip J. Bchotland, for the defendants.
   Emery, Y. C.

At the hearing I gave orally my views to some extent on the rights of the parties, reserving final determination for briefs on the following points—first, whether in the Ferry-Waring Company suit, referred to at the hearing, it had been expressly decided that the complainant’s patents, or any of them, covered “stays” as well as “rings,” and second, whether complainant’s representation or claim at the time of procuring the license, that “stays” were covered by its patents, made to defendant under the circumstances proved, was such a representation of fact on which defendants were entitled to rely in making the contract, that defendants on proving its falsity were discharged from the obligation to pay royalty under the contract, and were entitled to rescind the contract.

Briefs have been submitted on these points, and on further consideration of the cause, I add the following brief statement to the views expressed at the hearing. The opinion of Judge Lacombe in the Ferry-Waring Company suit does not expressly decide the issue now raised, as to the distinction between “stays” and “rings” under the Ferry patents, nor was that issue precisely raised. It is not therefore conclusive on the question, and its bearing on this question is therefore to be considered only in connection with the evidence given at the hearing upon this subject.

As to the second question, further consideration confirms my impressions indicated at the hearing, that under the circumstances- proved, complainant’s representation or claim that the “stays” in question were covered by its patents, was bona fide and honestly made, and was a representation or claim which, in bargaining with defendants as to a license, .it committed no fraud in making, and that the defendants being at that time actually claiming and acting on an adverse title—being the same title which they now set up and seek to establish by evidence— were not entitled to act on this representation or claim of title made by complainant as the assertion of a fact, the falsity of which, subsequently proved, would entitle them to repudiate the contract on this ground. ISTo authorities have been referred to establishing that representations of this character, made under these circumstances, are representations of fact on which defendant had then the right to rely, but might subsequently disprove, when it so elected, by disputing the license.

The general principle is that the licensee, to the extent that he continues to use the license, is estopped from denying the licensor’s title. Clark v. Adie, 2 L. R. 423; App. Cas. (1877) ; Jones v. Burnham, 67 Me. 93; 24 Am. Rep. 10 (1877); Kinsman v. Parkhurst, 18 How. (U. S.) 289.

This applies the same principle which estops a tenant from denying the landlord’s title to the land occupied under the lease, and is an estoppel implied by law, even in the absence of an express estoppel, such as was made by the agreement here. If the defendants have the right, for fraud or otherwise, to repudiate the license, thus making themselves liable to suit as infringers, the repudiation in such case must be total and of all the privileges granted. They cannot, at the same time, claim under and against the agreement. In the present case, the agreement granted the right to use the Halloek machines for rings and fixed the royalties for both rings and stays on a basis which did not depend on the actual making of either stays or rings, and these entire royalties are due, under the agreement, if the defendants use any of the privileges conferred by the license, and do not expressly repudiate them all. Defendants admit the use of these privileges for making “rings” and offer to account for these, but the accounting can be only according to the express agreement and not otherwise, so long as any privilege under it is used.

I will advise a decree for accounting under the agreement, to be settled on notice, if necessary, and that the cross-bill be dismissed.


source: Caselaw Access Project

author: Emery, V. C.

license: Public Domain

text:
    The Metropolitan Insurance Company v. Georgiana Clanton et al.
    [Decided July 31st, 1909.]
    1. The interest of a person designated as beneficiary of an industrial life policy is a vested property right, subject to the terms of the policy, construed as applying to such vested right.
    2. The fact that by the practice of the subordinate officers of a life insurance company, who received and forwarded to the company a notice of change of beneficiary, the policy was not forwarded with it, as required by a printed condition on the back of the policy, and that an endorsement on the policy of the change of beneficiary, likewise required, was not supposed either by insured or by them to be necessary, will not avail to change the beneficiary, and divest the right of the personal representative of insured to the payment expressly provided for in the policy.
    3. A gift may be made of a policy payable to the representatives of insured, as of other ehoses in action.
    Heard ou bill, answers, replication and proofs.

      Messrs. McCarter & English, for the complainant.

      Mr. William A. Lord, for the defendant Clanton.

      Mr. Arthur B. Seymour, for the defendant Morgan.
   Emery, V. C.

At the hearing of this cause it was directed that the money paid into court by complainant as due on policy No. 25797999 for $112 should be paid to the defendant Clanton as administratrix of Morris Williams, deceased, the insured. The defendant Morgan disclaimed in her answer any interest in this policy. The question reserved was as to whether the defendant Bosella Morgan or Clanton, as administratrix, was entitled to the proceeds of the policy Ho. 21113295 for $140, also paid into court. This policy is not a benefit certificate or certificate of membership in a benevolent association, but is a policy of life insurance of the kind known as “industrial” insurance. The policy contains an express agreement to pay the amount upon receipt of the proofs of death of the insured, and upon surrender of the policy and all receipt books, and as to the person or persons to whom the amount is payable or may be paid, a subsequent clause provides that

“The Company may pay the amount due under this Policy to the beneficiary named below, or to the executor or administrator, husband or wife, or any relative by blood of the insured or to any other person appearing to said Company to be equitably entitled to the same by reason of having incurred expense in behalf of the insured, or his or her burial, and the production of a receipt signed by either of them shall be conclusive evidence that all claims under this Policy have been satisfied.”

In the policy “the name of the beneficiary and relationship to the insured” is given merely as “estate.” On the back of the policy and under the title of “Privileges and Concessions to Policy-Holders,” are printed several privileges or conditions, but these are not either expressly referred to in the policy itself as so endorsed, nor are they expressly signed by the company. One of these relates to “change of beneficiary,” and is as follows:

“Subject to the approval of the Company, the insured may at any time during the continuance of this policy, provided the policy is not then assigned, change the beneficiary or beneficiaries, by written notice to the company at its I-Iome Office, accompanied by this policy, such change to take effect on the endorsement of the same on the policy by the company. After endorsement the policy will be returned.”

It has been settled by the decisions of this court as the general rule, that under provisions of this character as to change of beneficiaries, in the benefit certificate of benevolent associations, the persons originally indicated as the beneficiaries have the right to insist upon a compliance with their terms, and that the provisions are not merely regulations whose enforcement is at the option of the company alone, and which are waived by the payment of the fund into court. American Legion of Honor v. Smith (Vice-Chancellor Van Fleet, 1889), 45 N. J. Eq. (18 Stew.) 466, 472; Grand Lodge, &c., v. Connolly (Vice-Chancellor Reed, 1899), 58 N. J. Eq. (13 Dick.) 180, 184; Order of Heptasophs v. Dailey (Vice-Chancellor Reed, 1900), 61 N. J. Eq. (16 Dick.) 145; 152; Pennsylvania Railroad Co. v. Warren (Vice-Chancellor Bergen, 1905), 69 N. J. Eq. (3 Robb.) 706, 708. This general rule requiring the change of beneficiary to be made in the manner pointed out by the policy and by-laws of the association, is subject to some exceptions (2 May Ins. §§ 399, 400,. and Lahey v. Lahey (1903), 174 N. Y. 146, 155), and these exceptions seem to be based on the essential character of the right of the beneficiary in such certificate and the essential character of the designation.

The rights unjler these benevolent certificates are not vested property rights in the beneficiary, but are contractual rights only, depending on an appointment or designation. Golden Star Fraternity v. Martin (Court of Errors and Appeals, 1896), 59 N. J. Law (30 Vr.) 207, 215; Anderson v. Supreme Council, C. B. L., 69 N. J. Eq. (3 Robb.) 176, 179 (opinion affirmed on appeal). A change of beneficiary in these cases is in the nature of the execution of a power. Such execution defective at law may in some instances be aided in equity, and most of the exceptions to the general rule come, I think, within the equitable principles applicable to such defective execution. Thus, wrongful refusal of the original beneficiary to deliver up the possession of the certificate will not avail to defeat the change where its production is required by the provisions of the certificate. Polish National Alliance v. Nagbrabski (Vice-Chancellor Bergen, 1906), 71 N. J. Eq. (1 Buch.) 621.

In contracts of the kind now in question, which are pure life insurance contracts, the interest of a person designated as the beneficiary is, on the other hand, a vested property right, subject to the terms of the policy, construed as applying to such vested right. And if any distinction is to be made between the different contracts in the matter of the construction or application of the terms of the policy, as to a change of beneficiary, it should be in the direction of a stricter construction of the life insurance contract, than of the benefit certificates, where no divesting of property occurs.

The policy in question, on the face of it, is a policy payable on the insured’s death to his executors or administrators, and if the “privileges and concessions” printed on the back of the policy (before they are acted on) be considered as in fact part of the policy, although not referred to in it, then the right of the administratrix, so far as it depends on the policy itself, is to be divested only in the manner indicated, viz., “that the change shall take effect on the endorsement of the same on the policy by the company.” The application for change was made in this instance, but was not accompanied by the policy, nor was the change ever endorsed on the policy. The circumstance that by the practice of the subordinate officers of the company, who received and forwarded the notice of change to the company, the policy was not forwarded with it, and that the endorsement on the policy was not supposed either by the insured or by them to be necessary, will not avail to change the beneficiary, and divest the right of the representatives of the insured to the payment expressly provided for in the policy.

In addition to her claim as beneficiary under the policy set up in her answer, it is claimed in the brief of counsel for defendant Morgan, that she had title to the policy by gift or donation from the insured in his lifetime, and that the policy was in her possession at his death and was afterwards delivered by her to the insurance company. A gift may be made of a policy of insurance payable to the representatives of the insured, as of other choses in action belonging to the insured. Travelers Insurance Co. v. Grant (Vice-Chancellor Pitney, 1896), 54 N. J. Eq. (9 Dick.) 212.

This claim of delivery and possession of the policy is denied by the defendant Clanton, and her counsel in his brief claims that the policy for a long time previous to the death of the insured was in the possession of his son, who paid the premiums and who delivered the policy to the administratrix after the death of his father. My notes of the evidence do not show any proofs on this contested point, as to the possession of this policy at the time of the application for change of beneficiary or at the time of the death. Neither is there any evidence tending to show that the insured made to Mrs. Morgan a gift of the policy, which was intended to confer on her an interest or right in the policy or its proceeds, different from that which she would have as a beneficiary designated under the policy. .

In the absence of proof on these points the claim of Mrs. Morgan must be disposed of as resting solely on her right to the proceeds under the provisions relating to change of beneficiary, and for the reasons above given must be disallowed. If Mrs. Morgan, relying on the change having been made, paid the premiums subsequently accruing, an equity to the repayment of these may exist, and before advising decree, I will hear counsel on this point.

If, on examination of the stenographer’s notes, it should appear that there was evidence as to the possession of the policy by defendant Morgan at the time of application for change of beneficiary, or at the time of the death of the insured, application may be made for a rehearing, if counsel desire.


author: Emery, Y. 0.

text:
    John B. Ball et ux. v. Sidney S. Ward et al.
    [Decided October 13th, 1909.]
    1. Evidence hold to show that a deed was induced by threats- of the grantee of the immediate arrest and imprisonment of a son of the grantors for obtaining money from the grantee under false pretences.
    2. A grantor, suing- to set aside a deed induced by the threats of the grantee of the arrest of a son of the grantor for obtaining money under false pretences, on the ground that the deed was executed pursuant to an agreement to stifle a criminal prosecution, must allege and prove that a crime had been committed by the son which was compounded, or the prosecution of which was stifled.
    3. Evidence, in a suit to set aside a deed as induced by the threats of the grantee of the arrest of a son of the grantor for obtaining money by false pretences held not to show that the money was obtained under false -pretences, and that the threats for his arrest were threats of unlawful imprisonment.
    4. An agreement between debtor and creditor to compound a crime committed by the debtor, or to stifle the prosecution thereof, makes the transaction for the payment of the debt illegal, which illegality may be unconnected with the -question of duress, for the illegal agreement may be offered by the debtor himself voluntarily and without any pressure from the creditor.
    5. It is against equity for a creditor to extort from a parent payment of or security for the debt of a son, for which- the parent is not responsible, by threats of criminal prosecution of the son, though an imprisonment of the son would be lawful or supposed to be lawful, and contracts of the parent for such payment or security, executed under circumstances created by the creditor which deprive the parent of the freedom and power of deliberation necessary to validate such transactions, may. be avoided in equity, as made without consent.
    Heard on bill, answer, replication and proofs.

      Mr. Chandler W. Biher (Messrs. Biher & Biher, solicitors), for tbe complainants.

      Mr. Alfred F. Skinner (Mr. Benjamin C. Demarest, solicitor), for the defendants.
   Emery, Y. 0.

The bill is filed by John B. Ball and wife, to set aside two conveyances of land made by them to Sidney S. Ward, on November 29th, 1905, on the ground that they were executed under duress or threats. The duress alleged in their bill is that of threats of the immediate arrest and imprisonment of their son, Arthur D. Ball, for obtaining money of Mr. Ward under false representations. Complainants claim that under the pressure and. influence of these threats, made to them on the Sunday preceding (November 26th, 1905), and, believing the threats would be carried out, they agreed on that day to make the conveyances, without any opportunity for obtaining counsel or advice, and did after-wards make them while under such influence and pressure. Mr. Sidney S. Ward and his wife, Mary Ward, were the original defendants to the bill, filed March 31st, 1906, and their answer under oath (Mrs. Ward answering on information and belief) denies the duress or threats charged in the bill, and as to the circumstances of the execution of the deed, the answer avers that Arthur D. Ball, who was the son-in-law of Ward and had married his daughter and only child in January, 1902, had borrowed from Ward between October, 1903, and April 28th, 1905, $23,500, besides procuring Ward’s endorsement on March 21st, 1904, of Arthur Ball’s note at three months for $15,000, which note was renewed from time to time, and was outstanding at the time of the conveyances. All these advances and the endorser ments are averred to have been procured by Arthur Ball on his statement to Mr. Ward that they were to be used by Arthur as his contribution to a joint 'venture or speculation in which he was engaged as one of a syndicate, and which promised to be very profitable. After endorsing the note, and on April 28th, 1905, Mr. Ward, as his answer avers, made another loan to Arthur Ball of $3,800, to enable the latter to purchase a gas plant at Boonton. As to this advance there is no allegation in the answer that it was to be for Arthur’s share or part in any joint venture or syndicate operation. The advances remaining unpaid and the note being twice renewed, Mr. Ward, having his suspicions ■ aroused as to Arthur Ball’s representations, made inquiries of the person whom Arthur Ball had represented to have charge of the joint venture, and, in the language of the answer,

“was informed by him that there was no such joint venture or speculation, and that at the times when the said Sidney S. Ward had loaned to the said Arthur D. Ball the various sums of money above mentioned, the said Arthur D. Ball had not paid said money to any syndicate in which the said Arthur D. Ball was interested with said person.”

“Whereupon,” the answer continues, “the defendant Sidney S. Ward became satisfied that the said sums of money had been secured from him by misrepresentations and fraud.”

The answer avers that subsequent to this information Ward caused an examination of the records to be made, and ascertained that on April 13th, 1898, Arthur D. Ball, for the expressed consideration of one dollar, had conveyed to his father, John B. Ball, property on Johnson avenue, in Newark, and that on January 8th, 1902, the day of his marriage to defendant’s daughter, Arthur D. Ball had by a like deed conveyed to his father a house and tract of land at Deal, Monmouth county. The Johnson avenue house was the home of complainants, and up to the time of his marriage their son had resided there with them. The Deal place was a summer home in which, as is claimed by the answer, Arthur and his wife resided in the summer, and to the maintenance of which he contributed largely. Having ascertained these facts relating to the representations of Arthur Ball, and the conveyances of the property, the answer of Ward as to the circumstances of executing the deeds, says that on Sunday, November 26th, 1905, he called on complainants at their residence (the Johnson avenue property), told them that Arthur had obtained a large sum of money by these representations, that he had ascertained the representations were false and fraudulent, that Arthur was a bankrupt, and that inasmuch as the properties on Johnson avenue and at Deal had been conveyed to John B. Ball for one dollar, they, having received these properties by gift without consideration, should be willing to turn them over to the said Sidney S. Ward in part payment of the indebtedness of their son Arthur to him, and that thereupon the complainants expressed their sympathy for him, and regretted he had been wronged and offered to convey the properties. The use of any threats of the arrest or imprisonment of Arthur Ball at this interview or at subsequent interviews is also explicitly denied in the answer.

The bill charges a repetition of these threats of arrest at two subsequent interviews with Ward at his home on the same Sunday, one in the morning between Mr. Ward and John B. Ball, who had gone there to see his son, but did not see him, and another in the afternoon, in the bedroom occupied by Arthur, and at which Mr. and Mrs. Ward, Mr. and Mrs. John B. Ball and Mr. and Mrs. Arthur D. Ball were present. And it is further charged that at the latter interview there was made a threat of immediate direction, by telephone, of the arrest, if the complainants did not at once agree to transfer the properties, and that under pressure of these threats they then made the promises.

All of these allegations of threats and pressure are specifically denied by the answer under oath, and it is averred that at all of the interviews at defendant’s house the complainants were not only willing, but appeared to be anxious to turn over their properties to Ward.

Subsequent to the filing of the answer Mr. Sidney Ward died, and later, and before the hearing, Mrs. Ward also died. The suit was revived against the devisees and executors of Mr. Ward’s will, of whom Mrs. Arthur D. Ball is one, and is now defendant, both individually and as executor and trustee.

At the hearing the direct evidence on the part of complainants as to the circumstances under which the agreement to execute the deeds was made, was that of the two complainants and their son, Arthur Ball. The evidence of the complainants was at first objected to as not admissible against the defendant executrix and devisee, but the objection was afterwards formally withdrawn. On the part of the defendants the direct evidence is that of the answers under oath, and of Mrs. Arthur D. Ball. There are circumstances appearing in connection with the evidence of all the witnesses called at the hearing, which to some extent affect their credibility as to details of the interviews, as given at the hearing, but the case is certainly one where the decision on the substantial question of fact in dispute depends on the credit given to the witnesses. This question is whether the conveyances were the result of such pressure by threats of Arthur Ball’s immediate arrest on a criminal charge as to overcome the free will of the grantors in giving their consent to make the deeds and afterwards executing them. If the account of complainants and of Arthur Ball is true, then they were so procured, and on the other hand, if the answers and the account of Mrs. Arthur Ball are true, the deeds were not executed under any pressure, but were the voluntary acts of complainants for the purpose of repairing to some extent a wrong done by their son to Mr. Ward, and cannot now be rescinded.

My impression at the hearing was that, duly weighing this conflict of evidence, the complainants had made out that the deeds were not voluntary, but were induced by pressure put on them by the threats of imprisonment. I retain this view on reading over the evidence again and further consideration, and there are certain undisputed facts appearing by the evidence which tend to corroborate this view and indicate that these deeds were executed under this pressure, and were not voluntary conveyances by the parents to pay the debts of their son.

The Balls were elderly people, both well over sixty, and Mr. Ball had but moderate means, being employed on a salary, and the deeds in question comprised about all his propertjr. Mrs. John Ball herself had no separate estate or property.

The Johnson avenue property undoubtedly belonged to John Ball and was paid for and the homestead built thereon by his own means. His son originally purchased for $1,000 the vacant lot on which there was a mortgage of $3,000, and conveyed it to his father a few months later for the same price, which his father paid, subsequently paying the mortgage. To raise money the father sold another house in which he lived for $5,600, and then built a house on the Johnson avenue lot costing about $8,500 and using also for this purpose the proceeds of a mortgage on the lot for1 $6,500. Arthur Ball seems to have had no money whatever in this property at the time of the conveyances. As to the Deal property the evidence that Arthur did not contribute toward the construction of the house is not so clear or satisfactory, but it does sufficiently appear that his father did advance money toward the construction, and that at the time of the conveyance to Mr. John Ball by Arthur at the time of the latter’s marriage, John Ball had considerable money invested in the property, if he had not built it. entirely, and so far as Arthur’s subsequent creditors were concerned, no ground appears for supposing that John Ball’s title to the property was subject to their claims.'

In the early part of November Mr. Ward had searches made upon Arthur Ball’s and John Ball’s property, and after obtaining these, on Saturday morning, November 25th, had an interview with Mr. ITzal McCarter, the gentleman named as having control of the joint venture. On Saturday evening Mr. Ward had an interview with Arthur Ball at his (Ward’s) home. At this interview Mr. Ward seems to have accused Arthur of having obtained his money under false representations, but so far as appears by the meagre ac.count of it, given by Arthur and his wife (the only two witnesses), there was no reference in that interview to any conveyance of their property by Arthur’s parents. On Sunday morning Mr. Ward went alone to the residence of the complainants, reaching there before breakfast, and had an interview, in which they learned for the first time, and from Mr. Ward, that their son was a bankrupt and had, as he said, obtained money wrongfully from him. That in this interview some reference to a conveyance of the two tracts held by John Ball was made, appears by the sworn answers and the evidence of both the complainants. One question is whether there was then and at that interview, which was not very long, any definite agreement or offer to make the transfer, as is set up in the answer. Mrs. Ball says that she was willing to make the transfer in order to save Arthur from the arrest which Mr. Ward threatened, but her husband was not, and wanted time to think about it. Her husband makes substantially the same statement. The interview ended by an appointment for a subsequent interview on the same day at Mr. Ward’s house, corroborating somewhat Mr. Ball’s statement that he was not ready to consent at once. After this interview, and in the morning, Mr. Ball went to his son’s house in Clinton avenue to see him, but finding that he had gone to Mr. Ward’s house in East Orange, went there about ten o’clock for the purpose of seeing his son. Mr. Ward met him and told him that his son was then lying down or asleep and should not be disturbed, and he then took Mr. Ball into his own room or “den.”' Previous to John Ball’s arrival and when Arthur came to his father-in-law’s house that morning, Mr. Ward told Arthur (according to Arthur’s statement) that he had been down to his father’s and had told his parents about his indebtedness and that if they did not turn over their property he (Arthur) would be arrested. Arthur then owned his home on Clinton avenue in Newark and offered to turn over this residence, but protested against Ward’s demanding that his father’s property should be turned over for his (Arthur’s) debts. To this Mr. Ward replied “that if he didn’t get it, he would have me arrested.” There are two important features of this evidence— first, that Arthur, according to his own account, is now for the first time, as it would appear, advised that his father-in-law proposed to arrest him on some charge of criminality in his dealings with him, and second, that his arrest was to be made unless not only Arthur but his parents conveyed their property, and that now both Arthur and his parents knew of the threats. Arthur, after this interview with Mr. Ward, went to a room in the house to lie down and did not know of his father’s visit to the house in the morning. Mr. Ward and Mr. John Ball had a short interview alone, as to which nothing important bearing on the matter of threats or conveyances has been sworn to on either side.

The afternoon appointment was kept, Mr. and Mrs. Ball first having an interview with Mr. Ward in the den, at which Mrs. Ward was present. Arthur Ball, from the bedroom near the den, in which he was lying down, heard the conversation. Arthur himself took no part in this conversation, but after this interview all four came over to the bedroom in which Arthur was. At the interview in the den and also in the bedroom, according to Mr. and Mrs. John Ball and Arthur Ball, the threats of immediate arrest of Arthur were made, unless the parents agreed to convey the properties, and as Mr. Ball hesitated to agree, Mrs. Ward was, as they say, sent to the telephone twice or three times by Mr. Ward, with directions to notify the lawyer to proceed at once. Mrs. Ball herself appealed to her husband to consent in order to save Arthur and finally he did consent, and in Arthur’s room, where he and his parents met for the first time since they had information as to his father-in-law’s claim against him, he was first informed or learned that his parents had given up all their property to pay a portion of his debts. According to his own and his father’s and mother’s statements this consent was forced from the parents by threats of his immediate arrest for crime in obtaining money from Mr. Ward, which threats were made to the parents within Arthur’s hearing. According to the answers and also the testimony of Mrs. Arthur Ball, this consent was then given in Arthur’s presence, but as a voluntary offer of reimbursement, and without any threats, either then or previously made.

In considering the sworn answers and all the evidence relating to this interview, in which according to all of them, the consent to the conveyances was definitely given in Arthur’s presence, I find one important feature on which there is no dispute. This is the fact that, although Arthur had no previous interview with either his father or mother relating to the charge against him or to his debts, and in this interview was first informed or first learned of their consent to make the transfer of all their property for his benefit, not a single witness who swears as to the interview, either in the answer or at the hearing, and including Arthur himself, says in his account that Arthur made any objection or protest whatever against his parents stripping themselves of all their property to pay his debts, or made any disclosure to them as to his debts, or expressed any gratitude to them. This silence, in which all witnesses agree, is fully explained and accounted for if Arthur then knew of the threats to his parents as well as himself of his arrest unless the conveyances were made, and was willing that his parents should make this sacrifice to save him.- If the promise to convey was voluntary, this silence on Arthur’s part is not, in my judgment, accounted for.

This same feature of the evidence—Arthur’s silence on the question of the transfer of his parents’ property—appears in the accounts as to the final interview on Monday morning at Mr. Ward’s house, when the deeds for the properties (or copies of the descriptions) were delivered to Mr. Ward by Arthur, in the presence of the same witnesses. And there are some very important and undisputed facts appearing as the result of all the evidence and bearing directly upon the question, which are all consistent with the view that the promise to make the deeds was the result of some immediate pressure, but which are not satisfactorily explained on the view that the promise was a purely voluntary promise to pay Arthur’s debts. These are the haste in which the promise was made, being the result of interviews on Sunday, the first day the parties met; the absence of counsel or advice to the Balls in relation to the apparently improvident transfer of all their property to pay part of their son’s debts, and the absence of any statements, agreements or examinations as to the amount of Arthur’s debts which the conveyances were to pay, and of any arrangement at the time for any credit on the debts.

The concurrence of these undisputed facts indicate that for some reason a transfer was agreed on, which was to be immediate, and which left indefinite and unadjusted, matters which ordinarily would have been agreed on had the transaction been a mere voluntary conveyance by the complainants for the purpose of paying part of their son’s debts.

The cumulative force of these undisputed facts is strongly corroborative of the complainants’ direct evidence of undue pressure by the use of threats. Weighing all the evidence and considering it with the aid of the very full and able arguments of counsel on almost all its phases, I can reach no other conclusion than that the final agreement by complainants to convey the properties, and the delivery of the deeds to Mr. Ward for the purpose of having them drawn and executed, were procured by the threats of Arthur’s immediate imprisonment if they were not executed. These promises were carried out and the deeds executed without delay or further interview between John B. Ball and Mr. Ward, and, as I conclude, while the complainants were still under the influence of this pressure. The complainants had no counsel or adviser then or at any time, and the formal execution and acknowledgment of the deeds as their voluntary acts, before Mr. Ward’s counsel, and their conversation with him at the time without disclosing that they were the result of threats, while it is a circumstance to be considered in weighing their evidence, is not, of itself, sufficient to make the deeds voluntary acts, if the grantors executed them, as I conclude they did, under the belief, induced by the grantee at their previous interviews, that their son would be immediately arrested if the deeds were not made, and under the belief that if the deeds were made, directions for his arrest would not be given. The grantee allowed them to act on this belief, and gave the grantors deeds to his own counsel with direction for the conveyances to himself. This counsel states that at the interview in his office, and before he signed the deeds, Mr. Ball inquired of him whether his son Arthur had done anything criminal, to which he replied that Mr. Ward had informed him (Demarest) that Arthur had secured money under false representations, and that was all he (Demarest) knew about it. This conversation shows that at the time of the execution and delivery of the deeds, the idea that Mr. Ward charged Arthur with crime was still impressed on the grantor, and the reply of counsel, whether so intended or not, would tend to confirm rather than lessen the effect of any threats, if they had been previously made.

The fact that complainants after finally making the promise to convey acted without any advice or counsel in the actual execution of the deeds of this character and delivered them without the execution of any other paper or statement for their protection, either in relation to Arthur’s debts or their future rights of any kind in the property, confirms rather than challenges the view that the deeds were the result of the threats, and were not voluntary acts.

In reference to the execution of these deeds, I think the evidence further shows that there was at least an understanding between the parties, not expressed in words, but clearly implied, that if the deeds were made Arthur would not be prosecuted criminally at all. The arrest for the crime threatened was the immediate arrest; the directions for this were withdrawn on receiving the promise for the deeds, and this promise and the execution of the deeds were by all the parties treated as settling the matter of the arrest. The express agreement or direction reached no farther, perhaps, than the arrest then proposed, and there was not in express words any agreement that no future prosecution for the alleged crime should be made.

The question whether there was an agreement to stifle a prosecution which affected the deeds with illegality might be important if complainants asserted such illegality as a basis of relief, but as no arrest was made and no prosecution was actually pending, it would be necessary for complainants to allege' and prove that in fact a crime had been committed, which was compounded, or the prosecution of which had been stifled. Manning v. Columbian Lodge (Court of Errors and Appeals, 1898), 57 N. J. Eq. (12 Dick.) 338. In the present ease illegality of the deeds, as based on the stifling of a criminal prosecution, or compounding a crime, is not set up in the bill as a ground of relief, nor is it alleged that any crime was committed by Arthur, and on the contrary, at the hearing the complainants insisted that it appeared that the charge of misrepresentation made by the answer was shown to be false. It was the defendant who insisted that upon the proofs it was shown that the crime had been committed, and this proof was relied on as making the threats those of lawful rather than unlawful imprisonment—the essential element, it was claimed, of duress.

The status of the case as to the proof of the crime charged may thus be an element to be considered, and it is as follows:

The answer alleges that all the advances by Mr. Ward to Arthur and his endorsements for him from October, 1903, to April 28th, 1905 (including the endorsement for $15,000 originally procured March 21st, 1904, and renewed from time to time every three months) were procured by Arthur on his statement that they were to be used by Arthur as his contribution to a joint venture or speculation in which he was engaged as one of a syndicate. The charge of the answer is that as Mr. Ward was informed in November, 1905, by the person named by Arthur as having charge of the venture for the syndicate,

“there was no such joint venture or speculation and that at the times when the said Ward had loaned to the said Arthur the various sums of money above mentioned, the said Arthur had not paid said money to any syndicate in which the said Arthur was interested with said person.”

Mr. IJzal McCarter, the gentleman referred to as thus having charge, was called as defendants’ witness and testified that Arthur Ball was one of a syndicate with himself and several others for purchasing stock, and that the operations of this syndicate were closed out on December 31st, 1904, and that after this date Arthur Ball had no interest in any syndicate with himself and others, but that there was one joint venture after that date in which he and Ball were the only ones jointly engaged, in which, however, he (McCarter) had carried the account from the beginning. Mr. McCarter’s further evidence is that Mr. Ward, on. Ms 'application to Mm for information, stated- that Arthur Ball had borrowed large sums of money from him (Ward) and had not paid them back and had given as the reason for not paying that Mr. McCarter had not yet made distribution of the funds. This statement was not true, as Mr. Ward was then informed by Mr. McCarter, who immediately sent for Arthur Ball and demanded a retraction. Arthur Ball then denied to Mr. McCarter making any statement to Mr. Ward that he was witHrolding funds belonging to him. Arthur Ball himself says that he put $10,000 into this syndicate and afterwards received this back, and although admitting that money was borrowed from his father-in-law to the extent of at least $17,500 from October, 1903, to April, 1904 (besides the endorsement of $15,000 in March, 1904), says that when borrowed it was on statements that he wanted it for use in speculation, but not on the statement that it was to be used in the syndicate. He further admits stating to Mr. Ward at the time of applications for money beyond the $10,000 originally advanced to him to go into the syndicate, that the distribution of the funds of the syndicate had been delayed. It does not appear that he ever informed Mr. Ward that the syndicate operations had been closed out in December, 1904, while it does appear that after this date the $15,000 note (a three months'" note) was renewed more than once, Mr. Ward apparently being ignorant until November, 1905, of the fact that the syndicate operations were closed out and that there was no money from this source due to Arthur. As Arthur Ball had received back the $10,000 put into the syndicate and had not paid anything to Mr. Ward, and Mr. Ward was still continuing the endorsements, the reasons for his not informing Mr. Ward that the syndicate operations had been closed and leading him to to suppose that they still continued, are quite apparent. As it appears by the proofs that Arthur Ball was originally one of the syndicate and did put into it some of the money advanced by Mr. Ward, and that the operations of this syndicate were not closed out until December 31st, 1904, after which date Mr. Ward advanced no more money to Arthur Ball, (except the $3,800 which, as the answer states, was advanced for purposes other than this syndicate), it is clear, I think, that the particular charge of false representations set out in the answer, viz., “that there was no such joint venture or' syndicate, and that Arthur had not paid any of the money borrowed to any syndicate,” has not been established. It would rather seem from the evidence of Mr. McCarter that the false representation made to Mr. Ward probably was that the funds of the syndicate were still undistributed, and Arthur’s own testimony, as well as his failure to disclose the termination of the syndicate in December, 1904, corroborates this view. Such statement and conduct of Arthur’s would probably have induced the renewal of the endorsements of the $15,000 note after December, 1904, but there is no proof that after the syndicate was in fact closed out any money was obtained from Mr. Ward on Arthur’s statement that its funds were undistributed. I conclude, therefore, that the charge of crime set up in the answer that the moneys were obtained under the false pretences therein specified has not been made out, and that if the threats were for the arrest on this charge, they were not in point of fact made on the threat of lawful imprisonment. As Arthur had, however, while procuring from Mr. Ward the continuance of his endorsements of the $15,000 note after December, 1904, continued to mislead Mr. Ward, or allow him to be misled, in reference to the closing out of the syndicate operations and his receipt of the money coming to him under them, Mr. Ward, upon receiving information in November, 1905, that there then were no syndicate funds for distribution, was perhaps justified in believing that deception had been practiced on him, justifying criminal proceedings, and on this aspect of the whole case the question arises, whether threats of imprisonment, either lawful or honestly supposed to be lawful by the person making threats, will avoid deeds made under their pressure by a parent.

Whether threats of lawful imprisonment by criminal proceedings, made to the debtor himself, in order to induce him to pay his own debts, are of themselves ground for setting aside the debt- or’s deeds or mortgages given to pay or secure the debt, under" the pressure of the threats, where there is no agreement to compound a crime or stifle a criminal prosecution, is not the question involved in this case. As to the debtor himself, it may be said "that his lawful prosecution either civilly or criminally can be no wrong, and that his acts done in payment of the debts could not be avoided merely for threats of such legal pressure. An agreement, however, between the debtor and creditor, to compound the crime or stifle the prosecution, makes the transaction for payment of his own debts illegal, and the weight of authority seems to be that the debtor himself, although in delicio, may for this kind of illegality avoid his oto contracts, upon the ground of the public policy, that a creditor is not permitted to trade on the public crime for his own profit. Illegality of this character, however, is, or at least may be, altogether unconnected with the question of undue pressure, for the illegal agreement may be offered by the debtor himself or his parents or other surety, voluntarily and without any pressure by the' creditor, but this would not clear the illegality which inheres in the agreement itself, whatever its origin.

But the precise question in the present case is whether deeds made to the creditor by a parent of the debtor, and without consideration from the creditor, will be avoided in equity if made under the influence of such pressure of threats of imprisonment (lawful or supposed to be lawful), as to overcome the free agency of the grantor. In the single case in this court in which the question was said to be directly involved (Lomerson v. Johnston (1888), 44 N. J. Eq. (17 Stew.) 93), Vice-Chancellor Bird decided that a mortgage upon a wife”s real estate was executed by her under such pressure of threats of her husband’s arrest for embezzlement, as to overcome her free agency, and that in equity it should be set aside. The court of errors and appeals (2 Dick. 314, 1890) affirmed the decree, upon the ground, however, that the proofs showed that the creditor knowingly gave the wife the false impression that her husband was to be immediately arrested, and allowed the wife to make the mortgage under this false apprehension. It was held to be inequitable to permit him to retain the mortgage thus obtained.

As I understand the opinion of the appellate court the state of mind of the grantor in which the mortgage was executed was held to be of vital consequence to the validity of the security, considered as a contract based on consent, and if this state of mind inducing the deed—the fear of her husband’s arrest—was procured by false impressions knowingly created by the creditor, his conduct in creating this state of mind to extort the consent was illegal, and the illegality vitiated the security in a court of equity, Avhich would set it aside. Whether the security could have been retained had the same state of mind been induced and the consent extorted by threats honestly made, was not decided, and the circumstance that the appellate court, in disposing of the case, held that this question was not involved, prevents, as I take it, the opinion of Vice-Chancellor Bird on this point in the ease belorv, from being considered as an authority controlling my decision on this part, although due weight must be given to his learned examination of the question. The decision of the appellate court, however, does seem to be express authority to the point that if the state of mind or motive of the wife, a stranger to the debt, in conveying her property to secure the husband’s debt, was induced and her consent extorted by illegal acts of the creditor, such as fraudulently creating a belief of arrest, the security will be avoided in equity for such illegality, and this was decided upon equitable principles applicable to the validity of consent to execute contracts and without any inquiry or consideration of the application of the common-law doctrine of duress per minas. When this consent is procured by the creditor by a fraudulently created belief, or an unlawfully created fear (as in the Loremson-Johnson Case, supra), there seems to be no difference of opinion as to the right to avoid the contracts, the general equitable ground being that stated by Mr. Justice Holmes in Silsbee v. Webber (1898), 171 Mass. 378, 380, &c., viz., that of obtaining a contract by creating a motive from which the other'party ought to be free, and which in fact is, and is known to be, sufficient to produce the result. He further says, Ibid. 881, that some of the cases allow contracts to be avoided obtained by the threat of unquestionably legal acts, and cites the leading English, Hew York and Massachusetts decisions. Mr. Justice Iinowlton, in his dissenting opinion, also affirms this principle, and says (p. 881) that it is an abuse of process and misuse of the machinery of law, Avhich the law will not permit, for one who reasonably believes his debtor to be guilty of crime, to extort the collection of a private debt by threats of prosecution and imprisonment for crime, these being proceedings intended only to impose punishment in the interest of the public, that contracts so procured may be avoided for duress, and that it is equally a wrong and an injury to accomplish the same results through threats of such abuse or process.

The ground taken by the defendant’s counsel on this branch of the case, is, that in order to avoid these deeds in equity, as made under pressure of threats of imprisonment for crime, the pressure must be such as at common law amounted to duress per minas, and this, as is claimed, must be a threat of unlawful imprisonment as distinguished from lawful imprisonment; it is claimed that at common law’duress per minas was not as a general rule pleadable by any person other 'than the one threatened with imprisonment, the only exception to this rule being duress to a husband, wife, parent or child, by threats of imprisonment of the wife, husband, child or parent.' And it is then insisted that this exception, as to the person threatened, which gives the parent the right to question his contracts made by duress to his child, and as if he were himself the person threatened, did not change in favor of the parent, the nature of the duress to be proved, or give him the right to avoid deeds executed under pressure of threats of lawful imprisonment to the child.

It has been held in this court that mortgages by the debtor himself to secure his own lawful debts, claimed to have been executed under threats of lawful criminal prosecution, could not be avoided as made under duress, even if such coercion were proved. Bodine v. Morgan (Chancellor Runyon, 1883), 37 N. J. Eq. (10 Stew.) 426, 428. It was found, however, as matter of fact, in this case, that coercion was not established, but that the mortgage was in fact voluntary, and this same feature—the voluntary execution of the deeds or contracts—appears also in the other New Jersey cases of duress by threats of lawful imprisonment, either criminal or civil. In Clark v. Turnbull (Supreme Court, 1885), 47 N. J. Law (18 Vr.) 265, it is said (at p. 267), that there was no pretence that the imprisonment (of defendant’s brother in a civil suit) was unlawful, or that the note of defendant sued on was coerced or even asked for by the plaintiff. In Tooker v. Sloan (Chancellor Runyon. 1879), 30 N. J. Eq. (3 Stew.) 394, the legal proceedings threatened against the husband do not appear to have been criminal proceedings, and the property upon which the wife gave the mortgage to settle the claims against the husband was found to be in fact the husband’s property, held by the wife in trust for him (at p. 897). Coercion does not seem to have been proved. In Smillie v. Titus (Chancellor Runyon, 1880), 32 N. J. Eq. (5 Stew.) 51, it is expressty found that the mortgage' given by the husband and wife on the husband’s property, to pay the husband’s debt, arising from an embezzlement, was given voluntarily and that there was no ground to suspect oppression or imposition. In several other cases referred to by defendant’s counsel, the general rule at law has been stated in the opinion as being that the duress must be by threats of unlawful imprisonment, but the precise point now in question, viz., whether as against a parent, being a stranger to the debt, contracts for paying or securing the debt of a child, procured by threats of his imprisonment in criminal proceedings and having the effect of overcoming free agency are valid either at law or in equity, has not been either considered or decided, except in Lomerson v. Johnson. The most thorough examination of the question of the equitable status of contracts so procured is in the leading English case, Williams v. Bayley (1866), L. R. 1 H. L. 200; 35 L. J. Ch. 717, which has been approved and followed in many, if not all, of the American courts. In this case a father, under the pressure of threats by a creditor, of his son’s imprisonment for a felony, gave a mortgage on his property, to secure the son’s debt. There was no question in the case as to the commission of crime, and that the threats were of imprisonment, which if it took place would be lawful, for the son had forged the father’s name on notes or bills, and the notes or bills, with the forged signatures, were -delivered to the father upon his executing the agreements for security. On a bill filed by the father offering to return the notes, he sought to avoid the security on two grounds—first, of undue pressure in procuring their execution; and second, of illegality in compounding a crime. Vice-Chancellor Stuart, before whom the cause was tried, held that the agreements were void because executed under a pressure which drove the father to comply with tlie terms exacted by operating on his fears, and deprived him of the freedom of action necessary to the validity of an agreement. Bayley v. Williams, 11 Jur. (N. S.) 236, 237. The question of illegality for compounding a felony was not considered, it being, as the vice-chancellor said (at p. 287), not the province of the court of equity to decide whether crimes or misdemeanors have been committed, and the decision was based entirely on the equitable principles relating to relief from contracts to which consent had been extorted by undue pressure and to which there was no real consent. On appeal the case was argued for the appellants by Sir Hugh Cairns, and for the respondents by Sir R. Palmer, both afterwards lord chancellors. The imprisonment threatened was clearly lawful, but in none of the arguments, nor in any of the opinions in either court, does it seem to have been suggested that the question to be decided depended in any way upon any common law rule, that in a ease of this character duress existed only if the threats were of unlawful imprisonment. On the appeal the opinion of the three lord chancellors—Cranworth, Chelmsford and Westbury—who delivered the opinions, all agreed in affirming the decree. Lord Cranworth’s opinion went upon the ground that a pressure put on the parent by threats to prosecute his son for forgery if the parent did not take upon himself the payment of his son’s debts, and by promises not to prosecute if he did, was an illegal pressure; and he also found that one object of the agreement was to stifle a criminal prosecution. Lord Chelmsford agrees that the security in question was extorted from the father by undue pressure, and says that “the case comes within the principles on which a court of equity proceeds in setting aside an agreement where there is inequality between the parties, and one of them takes an unfair advantage of the situation of the other and uses undue influence to force an agreement from him.” Lord Westbury, in his thorough and forcible opinion, places the case on the ground (i86 L. J. Oh. 726) that the only motive appearing in the case to induce the father to adopt his son’s debt was the hope that by so doing he would relieve his son from the inevitable consequences of his crime, and that the question therefore was whether a father, appealed to under such circumstances, to take upon himself an amount, of civil liability, with the knowledge that unless he does so, his son will be exposed to a criminal prosecution, with the certainty of a conviction, can be regarded as a free agent.” His opinion on this question, without hesitation, was “that no man is safe, or ought to be safe, who takes a security for the debt of a felon from the father of a felon, under such circumstances.” He further holds that a contract to give security for the debt of another being a contract without consideration should be based on the free and voluntary agency of the individual who enters into it, and that it is clear that the power of considering whether he ought to do it or not, whether it is prudent to do it or not, is altogether taken away from a father who is brought into the situation of either refusing and leaving his son in that perilous condition, or of taking on himself the amount of the civil obligation. On this aspect of the ease he concludes that the security given for the debt of the son by the father, under such circumstances, was not the security of a man who acted with that freedom and power of deliberation that must undoubtedly be considered necessary to validate a security of this description. On the other question involved, whether independently of pressure, the transaction was illegal as founded on an agreement to stifle a prosecution, and to give up evidence of crime—the forged bills—for the purpose of securing a private benefit, “it is,” he says (at p. 726), “unquestionably a law, dictated by the soundest consideration of policy and morality, that you should not make a trade of felony.”

In Eadie v. Slimmon (1862), 26 N. Y. 10, the same principle as to undue pressure was applied, declaring void an assignment of a life insurance policy by a wife to pay her husband’s debts, procured by threats of his imprisonment, and under circumstances which overcame her free agency. Later cases in this state affirm this ground of equitable relief and hold that the fact that the threats are of lawful imprisonment do not make the transaction valid. Adams v. Irving National Bank (1889), 116 N. Y. 606, where money paid by a wife to the husband’s creditor for his debt, under threats of his arrest, was recovered back. This is the rule also in Massachusetts, and in this state the securities given under these circumstances seem to have been declared void in suits at law, under the issue of duress. Harris v. Carmody (1881), 131 Mass. 51; Morse v. Woodworth (1891), 155 Mass. 233; Silsbee v. Webber (1898), 171 Mass. 378.

The same rule that similar contracts procured under threats of prosecution from persons standing in these relations and under such pressure as to overcome free agency, will be avoided in equity, seems to be adopted in most, if not all, of the American courts. The latest cases, and from a number of states, are collected in 20 L. R. A. (N. S.) 486, in a note to the case, Williamson, &c., Co. v. Ackerman (1908), 77 Kan. 502; 94 Pac. Rep. 807. Many of the earlier decisions are collated in 26 L. R. A. 48 (note), and are also referred to in Burton v. McMillan (Fla., 1907), 42 So. 849; 8 L. R. A. (N. S.) 991, but as the cases I have above referred to at length sufficiently bring out the substantial reasons on which the cases proceed, further citation of cases in detail is unnecessary.

In my judgment, the equitable rule to be applied in this case is the one illustrated in these eases, viz., that it is against equity and good conscience for a creditor to extort from a parent payment of or security for the debt of a son for which the parent is not responsible, by threats of criminal prosecution of the son, even if the imprisonment be lawful, or supposed to be lawful, and that contracts of the parent for such payment or security executed under circumstances created by the creditor which deprive the parent of the freedom and power of deliberation necessarj'’ to validate transactions of this description, may be avoided in a court of equity, as made without consent. A decree will be advised setting aside the deeds.


author: Stevens, V. C.

text:
    Frederick M. Rogers v. Alice Caroline Baily.
    [Decided May 21st, 1909.]
    By will testatrix gave certain real property to a son, and provided that, on the son’s death leaving- no children, the property should go to her daughter, should the property have been sold or exchanged, the daughter should receive the value to the extent of $4,000 and “should my daughter not be living at the time of my son’s death, then the property or the equivalent to be given to my granddaughter.”—Held, that the son took the property in fee, subject only to the executory devises, and the granddaughter took a contingent interest in fee.

      Mr. Franlc Benjamin, for the complainant.

      Mr. Benjamin G. Demarest, for the infant defendant.
   Stevens, V. C.

This is a hill to quiet title. The complainant, who is an uncle of defendant, alleges that under the will of his mother he has an indefeasible title in fee-simple in the house and lot known as Ho. 62 State street, East Orange. His niece, the infant defendant, by her guardian, answers and says

“that she is entitled to a contingent interest in fee in the above described premises; contingent upon the death of Frederick M. Rogers (the complainant) after the death of Minnie E. Rogers Baily and leaving no child or children him surviving.”

It will thus be seen that the issue, and the only issue raised by the pleadings, is whether the defendant has a contingent interest under the will. The will was probated in the District of Columbia. A copy of it, with a certificate by the register of wills, was put in evidence. In this certificate the register says that the will and codicil, after having been duly proven, were admitted to probate and record by order of the probate court, but he does uot certify whether a memorandum purporting. to have been signed by testatrix and appearing between the will and the codicil was admitted to probate as a part of the latter. The memorandum is unwitnessed. The original was not produced and the signature to it was not proved. The codicil does not in terms refer to it, and there is no direct proof as to where it was written on the original document. By her will Mrs. Rogers gave her house and lot, No. 50 North Eleventh street, Newark, to her son, the complainant. By the memorandum she certifies (if she wrote it) that the house and lot have been sold and that “the house and lot now refers to No. 62 State street, East Orange, N. J.” It is conceded that complainant has no title to this latter house and lot under the will and codicil, unless the memorandum is by implication incorporated into them.

Counsel have handed me elaborate briefs on the question whether this memorandum is so incorporated. The proof is as yet insufficient to raise the question. As the document itself has been filed among the records of the probate court of the District of Columbia, there may be some difficulty in getting the evidence. In the view that I take of the case, however, it is immaterial whether the memorandum is part of the codicil. Whether it is or is not, the bill must be dismissed on the ground that the defendant, Alice, has a contingent interest in the land, and consequently the complainant’s insistment that he is sole owner of an indefeasible estate therein cannot be sustained.

I will first consider the ease as if the memorandum were incorporated in the will. It will then read as follows:

“I give and bequeath to my son Frederick M. Rogers my house and lot * * * (No. 62 State St., East Orange, N. J.) * * * In the event of my son Frederick M. Rogers’ death, leaving no children or child, I give and bequeath to the survivor, my daughter, Minnie E. Rogers Bailey, the house and lot at 62 State St., East Orange. Should the house and lot have been sold or exchanged, my daughter is to receive the value of said house and lot to the extent of $4,000. Should my daughter not be living at the time of my son’s death, then the house and lot or the equivalent to be given to my granddaughter, Alice Caroline Bailey.”

I am inclined to think that under this will Frederick took a fee-simple subject to executory devises to Minnie and Alice and not a life estate. The act of 178-1 provides that where there is a devise of land and the words “heirs and assigns” are omitted, and no expressions are contained in the will whereby it shall appear that such devise was intended to convey only an estate for life, “and (which means “or,” Morris v. LeBel, 71 N. J. Eq. (1 Buch.) 43) no further devise thereof being made of the devised premises" all such devises shall be construed to convey an estate in fee-simple. In Den v. Allaire, 20 N. J. Law (Spenc.) 10, the judges thought that the act applied, although there was an executory devise over, and so, in one sense, a further devise. In Brooks v. Kip, 54 N. J. Eq. (9 Dick.) 468, Chancellor McGill, without, apparently, having had his attention called to Den v. Allaire, expressed an opinion to the contrary. If, in the present case, the will does not give Frederick a'fee there is this somewhat singular result, viz., that Frederick would take a life estate, while Minnie and Alice would, on the happening of the contingency, take a fee, although the gift to them, like the gift to Frederick, is without words of inheritance.

In Den v. Snitcher, 14 N. J. Law (2 Gr.) 53, testator devised a plantation to S. C. and if he should die without issue then, at his (S. C.’s) decease, testator gave an undivided half over. He did not devise the other half. It was held that he intended that S. C. should have the whole in fee in case he had issue and that at all events he was the absolute owner of the half not given over. If the statute may operate where an undivided portion is given over, I do not see why it may not operate where a contingent estate—an estate that may never take effect—is the only interest so given. Such a gift presupposes a residuum of interest that may, in the event, be entirely undisposed of. Why may not the statute operate upon such residuum? Why should the testator, contrary to his evident intent, be held to have died intestate so far as the fee is concerned? It seems difficult to resist the conviction that the statute Avas passed to meet just such a case. The remedy would not, otherwise, have met the evil mentioned in the preamble of the act. As I read the decision in Den v. Snitcher, this was the view of Chief-Justice Hornblower.

But if Frederick takes only a life estate the result is not substantially different, for the undisposed of fee has descended upon him and his sister Minnie, and Minnie has conveyed to him all her interest. Frederick holds the fee subject only to the contingent gift to Alice. The question is whether this devise to her is now subsisting. There can be no doubt that it is.

There are two classes of cases in our reports. In the first, testator gives land to A and, if he die, to B. It is held that B does not take unless A die in testator’s lifetime. The reason is this: A’s death is certain, consequently, the contingency expressed by the word “if” must necessarily be the implied contingency of A’s not being alive at testator’s death. There can be no other.

In the second class of cases the contingency denoted by the particle “if” is expressed and not implied. “I give my house and lot to A, and if A die without children to B.” Here it is not necessary to imply contingency, for we find it actually expressed. The contingency is not A’s dying, which is certain, but A’s dying without children, which is uncertain, and may happen just as well after testator’s death as before. To add to this contingency another, viz., that A’s death without children must occur in testator’s lifetime is to remake testator’s will, not to construe it. Consequently, when nothing more appears, it has been held, quite uniformly, that the contingency must have its full effect and that it terminates only with A’s death.

But provisions of this sort are generally complicated with other provisions. The will may, in the case of personalty, specify a period of payment or distribution, or in the case of realty, provide for a minority or interpose an estate for years or life. It may then become matter of doubt whether the expressions “death without children,” “death without issue,”' &c., do not mean death prior to the period of payment or distribution, or during the continuance of the interposed estate. To solve this question we must discover the intention of the testator, not by reading those words as if they stood alone but by looking into other parts of his will.

In Patterson v. Madden, 54 N. J. Eq. (9 Dick.) 714, Chief-Justice Gummere lays down two rules for solving questions of this sort.

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

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

In that case it was held that looking at the context, the limitation over stood, not in opposition to the devise itself, but to the event of the devisees coming into possession. The prior case of Pennington v. Van Houten, 8 N. J. Eq. (4 Halst.) 745, was an instance of the same kind, while Dean v. Nulley, 70 N. J. Law (41 Vr.) 218, was a case of the opposite sort. There land was given over “if E. die without lawful heirs,” and it was held that the devise over took effect upon E.’s dying without leaving issue at any time.

These were all cases in the court of errors. There are many cases in this court showing how these rules have been applied. They will be found cited in the recent cases of Burdge v. Walling, 45 N. J. Eq. (18 Stew.) 10, and McDowell v. Sliger, 58 N. J. Eq. (13 Dick.) 125.

The case in hand falls under the first of the two rules laid-down in Patterson v. Madden. The limitations over are set in opposition to Frederick’s death and to that event only. Minnie is to take if Frederick die without children. That is all. Alice i's to take if Frederick so die and Minnie be not living at tlie time of his death.

It is further contended that the clause, “should my house and lot have been sold or exchanged my daughter is to receive the value of the house to the extent of $4,000,” gives to Frederick an implied power of sale and consequently an absolute power of disposition. Beading the memorandum as part of the codicil (and on this assumption alone does Frederick take anything under the will) it would seem that the only sale that testatrix contemplated was a sale by herself. She had sold the first house given in. her will to Frederick and she thought it possible she might sell the second. In the absence of a duty to be performed courts do not readily imply powers of sale. Boylan v. Townley, 62 N. J. Eq. (17 Dick.) 593; Chandler v. Thompson, 62 N. J. Eq. (17 Dick.) 724. Here the testatrix neither expressly directs nor expressly empowers a sale, nor does she designate the person to make one. But if testatrix had expressly authorized Frederick to sell, this would not defeat the contingent gift. If he sold he would, if the contingencies happened, be chargeable with the purchase-money, to the extent of $4,000, for Alice’s benefit. The case would not fall within the reason of Downey v. Borden, 36 N. J. Law (7 Vr.) 461, or Wooster v. Cooper, 53 N. J. Eq. (8 Dick.) 682, for he would not be vested with the absolute power of disposal for his oovn use or benefit.

It is further objected that the devise to Alice is void because uncertain. As the testatrix did not sell the house, it alone, in the event that has happened, is the subject of disposition. There is now no alternative or substituted gift. But even on the assumption that Frederick has power to convert, he will sell not for himself alone but for Alice as well. And the proportion of the proceeds that he must hold for her is not doubtful. “The equivalent” for the lot sold is the $4,000, which testatrix, in terms, gives Minnie. To give effect to her obvious meaning as to Alice, ave must read the will as if she had said,

“should my daughter not be living * * * then the house and lot or the equivalent specified by me (viz., $4,000) is to be given to my granddaughter.”

If the memorandum heretofore adverted to be not incorporated in the will, complainant has no title except by descent as to the one-half and by purchase from Minnie as to the other. He takes no title by will. As tbe executory devise to Alice is well within the law against perpetuities, there can be no question but that it is good. It takes effect upon the happening of the contingencies already discussed.

The bill should be dismissed, with costs.