text:
    General Investment Company v. Bethlehem Steel Corporation.
    [Decided March 6th, 1917.]
    1. The court will take judicial notice of unsettled condition of public affairs when war is imminent, in dealing with underwriting contracts involving large amounts of money.
    2. Assuming that the court must consider the equitable and legal rights of a complainant stockholder, even if he bought his stock solely to acquire a status to question a corporate transaction, before a court of equity will act it must be demonstrated that complainant’s right is clear, his injury irreparable, and his remedy at law inadequate.
    3. The issuance of non-votings stock is not prohibited as against public policy.
    4. Participation of directors of a corporation in a syndicate to take up such stock does not make the actual transaction void. The contract is voidable but open to ratification by the stockholders.
    5. Under the statutes of this state common stock may be -divided into classes, and the voting privilege may be withheld from any class.
    6. The mere fact that it is the purpose of stockholders in withholding voting power from a new issue of common stock, to perpetuate the management, is no objection, in the absence of bad faith, to the issue.
    7. Common stock defined.
    On bill, &C.

      Messrs. McCarter & English (Mr. Egner and Mr. McCarter), for tbe complainant.

      Messrs. Linddbury, De-pue & Faulks (Mr. Faulks> Mr. Hardin, Mr. Linddbury), with whom was Mr.-Paul D. Cravalh (of the New York bar), for the defendant.
   Lane, Y. C.

(orally at conclusion of argument on motion for temporary injunction).

This is an application for a temporary injunction to restrain Bethlehem Steel Corporation from increasing its capital stock. The present capital stock is $30,000,000, divided one-half preferred and the other common, with equal voting rights. The plan is to increase the capital stock by $45,000,000, the additional to be called common, class B. Of this $30,000,000 is to be put out as a stock dividend; $15,000,000 is to be sold. The stock is to have all the characteristics of common except that it will have no vote. The surplus of the company amounts to something like $69,000,000, and the scheme is proposed so as to get a part of this surplus orrt into the hands of stockholders and yet leave the money with the company as working capital. The intent of those who formulated the plan was to keep control of the company in its present stockholders. It is said that there is a good business reason for so doing. As part of the transaction a contract was entered into by the company under which Seligman & Company, bankers, agreed to form a syndicate to.underwrite the issue of $15,000,000 of the new stock. They were to be paid a certain commission, amounting, in case the plan was unsuccessful, I think, to $225,000, and, in case it was successful, to $450,000. A portion of this commission was to be retained by Seligman & Companjq and the remainder to be paid to those who should become syndicate subscribers. Among the syndicate subscribers wore certain directors of the company, including Mr. Schwab. The plan was promulgated January 25th, 1917, and immediately became public. The bill is brought by the General Investment Company, a corporation dominated and controlled by Clarence H. Veun'er. He bought his stock—one hundred shares —January 31st, 1917, and immediately notified the company of opposition to' the plan. He filed his bill on February 9th. The meeting of stockholders called for the purpose of acting on the increase was scheduled to be held February 14th. The last day for stockholders to subscribe, under the sjmdicate agreement is March 8th. The contract between the company and the bankers provided for a limited time of: performance. It is represented, and the court will take judicial notice of the fact, that in the present unsettled condition of affairs, contracts of this nature, dealing with the sums here dealt with, must be entered into with a very-limited time provided for performance, nothing else is conceivable.

On the day fixed the meeting was held. There was voted in favor of the plan one hundred and twenty-six thousand three hundred and seventy shares of preferred, and one hundred and twelve thousand one hundred and fifty-six shares of common, stock, and against the plan, four hundred and fifty shares of preferred, and one hundred and twenty-five shares of common, stock, of which latter one hundred shares were those held by the complainant.

There is another common stockholder holding twenty-five shares who, after argument by complainant’s counsel, to-day seeks to intervene. In view of my conclusions, I shall deny her application. The situation, therefore, is that over ninety-nine per cent, of the present stock desire that the plan should go forward, and opposition is made by only one hundred and twenty-five shares. Of these one. hundred were actually bought after the promulgation of the plan, and, I think, for the sole purpose of bringing this suit, notwithstanding the denial of Mr. Yenner. The law seems to be settled that even under, these circumstances this court must consider any equitable or legal right which the complainant may have cognizable or enforceable only in a court ■of equity. Hodge v. United States Steel Corporation, 64 N. J. Eq. 111. The reason of the rule, I assume, is, as applied to stock, that to hold otherwise would be to impose a restraint upon alienation. A holder of stock before the threatened act must be able to transfer all of his rights to anyone or the value of the stock may be affected. Notwithstanding this rule, before this court will intervene, at the suit of a stockholder who buys in. under the conditions .present here, a very small amount of stock, to prevent the carrjdng out of a plan such as this, approved by practically the entire stock issued, it must be satisfied that the right of the complainant is clear and the injury irreparable. Yico-Chancollor Pitney in Trimble v. American Sugar Refining Co. 61 N. J. Eq. 340 (at p. 345). The attack made upon the plan I will consider, putting out of mind, as far as I can, the circumstances under which it comes here.

Complainant asserts, firstly, that the corporation has no power to issue a class of common stock, or a class of stock having all the characteristics of common stock, without the voting privilege; secondly, that because it is admitted that the purpose is to perpetuate the present control of the corporation, and because some-of the directors who voted in favor of it became syndicate subscribers, and therefore will profit by its success, the entire proceedings are void.

1. Whether the corporation has the legal power to issue this class of stock depends upon the construction to be put upon the eighteenth section of the Corporation act. Revision of 1896, Comp. Slat. p. 160S. E'rom a casual reading of that section it would seem that stock of any kind, nature or description, common or preferred, or whatever it may be called, may be created with or without voting privileges. Counsel for complainant insists that the section must be construed in the light of a public policy said to have prevailed at the time the section was adopted and to prevail now, i. e., that common stockholders, at least, are entitled to consultation with, and advice of, and action by every other common stockholder, and that the policy of the law required that a corporation should bo managed by a majority of its stock. In other words, the privilege of voting is necessarily incidental to common stock. The cases relied on are Cone v. Russell & Mason, 48 N. J. Eq. 208; White v. Thomas Inflatable Tire Co., 52 N. J. Eq. 178; but see Chapman v. Bates, 61 N. J. Eq. 658 (at p. 667).

The question is not, however, whether after a person has purchased stock in a corporation having a certain amount of stock vested with • the right to vote, these fellow-stockholders may voluntarily separate the right of property from the right to vote, and thus put the control of the corporation in the hands of those-having no pecuniary-interest therein and deprive the dissenting stockholder of the advice and action of those whose advice and action he may have fairly be said to have contracted for, but rather whether such stockholder - is entitled to require that any new stock issued should be vested with the privilege of voting, a very different proposition-. I have examined, in the short time I haye had, all the cases that I could locate and I have failed to find any statement of such public policy, with, possibly, the exception of a remark made by Judge Lurton in Hamlin v. Toledo. St. Louis Railroad (C. C. A.), 78 Fed. Rep. 664, in which, while sustaining an issue of preferred stock, or, rather, an issue of stock which was neither preferred or common, a rather peculiar kind of stock, as he called it, he said: “They surrendered the privilege of voting. That was, perhaps, a valid agreement between stockholders, though of doubtful public policy.” >

It is almost impossible to get a definition of common stock or a statement of what classes of stock may be issued, and the necessary rights and privileges of the classes, that i§ satisfactory. Thompson, section 3426, in referring to common stock, sajrs that the name itself indicates its nature, and it is so called because it is the common stock, or the stock which private corporations generally issue; and is usually the only kind authorized. He says the universal rule is that the owners of common stock are entitled to a pro rata, dividend of profits, and to a pro rata participation in the management of the corporation; that the holders of common stock sometimes' have a preference in the management of the corporation. In section 3425', with reference to classes of stock, he states:

“The first general division of stock is into common or preferred stock; and these two classes are again subdivided into almost an infinite variety.” ■

Section 859:

“The rule that a right to vote* follows the ownership of stock'means only that in the absence of any common restriction upon all the stock, or upon a class of stock, this right prevails. That is, the right of a stockholder to vote cannot be arbitrarily abridged and is not subject to universal restriction. But the rule is equally emphatic, if not so general, that restrictions may be placed upon the right to vote; or, as sometimes stated, the right to vote may be separated from the ownership of stock. It must be remembered, in this connection, that stockholders can make any agreement respecting their stock, or the voting of it, that they may see fit or deem wise, except agreements that are void as against public policy.”

He cites Miller v. Ratterman (Supreme Court of Ohio), 24 N. E. Rep. 496. There the question was as to. whether preferred stock might be issued without voting privileges. The court said: “It is true that one characteristic of stock, generally, is that it can be voted upon. But this not essential. Indeed, instances may arise where it is good policy to prohibit the voting upon stock,” citing cases. Thompson, section 859, contains the statement: . .

“So, it has been established that holders of preferred stock may be denied the right to vote the same at any meeting of the holders of the. capital stock of the corporation. The legality of such restriction is not based on the theory that preferred stockholders are guaranteed a dividend ; but rather op the inherent power of the corporation to restrict the voting power. It is simply a contract relation between two classes of stockholders, in which the public has no concern.”

He instances a great number of cases where restrictions with respect to voting has been imposed upon common stock, i. e., one stockholder should not vote more than a fourth of the total, a stockholder should not vote more than one hundred shares, nonresidents should not vote, purchasers of forfeited stock should not vote, even though not liable for the amount due until the amount due was paid.

“There is no rule of public policy which forbids a corporation and its stockholders from making any contract they please in regard to restrictions on the voting power.” Cook Corp. § 6221).
“Inasmuch ns preferred stockholders are members of the company, and except in so far as their rights may be altered by the contract, statute or by-law under which the shares are issued, entitled in all respects to the same rights as other shareholders, it follows that they have the same voting rights as other shareholders. The right of shareholders to vote is, however, like the right to dividends or to participate equally in a division of capital on liquidation regarded as .a private matter for each shareholder which he may waive if he choose. Consequently, a provision that shareholders of a certain class shall have no right to vote is, if assented to by them, quite valid. Such a provision might theoretically be made as to either the preferred or the deferred (Machen calls common deferred shares), but it is much more common with respect to the preferred shares so as to compensate the other shareholders for the preference of the preferred stockholders as to dividends.” Mach. § 570.
“A stockholder has no right to vote at corporate meetings, whether the stock is common or preferred, if it is so stipulated when the stock is issued, for the stipulation is then a term of his contract.” 3 01. & M. me.

Mackintosh et al v. Flint P. M. R. Co., 32 Fed. Rep. 350; 34 Fed. Rep. 582, is referred to in Clark & Marshall as authority for the proposition that preferred stock may be given the exclusive privilege of voting-, at least in that case for a time. Counsel have not referred me to any case enunciating a public policy which would require that all common stockholders should have the voting privilege. In this state - it has been held that the matter is purely one of contract. McGregor v. Home Insurance Co. of N. J., 33 N. J. Eq. 181; In re Newark Library Association, 64 N. J. Law 218. This seems to be the rule in the other states.

Section 13 of the Delaware Corporation act is or was precisely similar to our section 18. The construction of that statute came before the supreme court of Delaware in State v. Brooks, 74 Atl. Rep. 37. Preferred stock had been issued without the right to vote. There was a constitutional provision providing that all stock issued should, have voting privileges. It was contended that the issuance of the preferred stock was in violation of this provision. The court held not, and that. the. constitution meant that stock should vote which by law had a vote; that there was no public polic3r which prevented the issuance of stock without the voting privilege. The reasoning of the court is as applicable' to common as to preferred stock, assuming that the relation between the stockholders is purely one of contract. The case was reversed in the court of errors and appeals (79 Atl. Rep. 790), but upon the ground that the constitutional provision meant what is said, and that the statute was in violation of the' provision. The constitutional provision had been, repealed before the decision, and the court points out that there is a distinction between the situation in New Jersey and in Delaware, i. e., the absence in New Jersey of any such constitutional provision. Turning to the statute:

.“Every corporation organized under this act shall have power to create two or more kinds of stock, of such classes, with such designations, preferences and voting powers or restrictions or qualifications thereof as shall he stated and expressed in the certificate of incorporation or in any certificate of amendment thereof.”

No broader language could have been used, and unless the usual meaning of these words is to be-restricted by reason of the existence of some public policjr, it is inconceivable to' me that a corporation may not issue this class of common stock, or call it what you will. I have failed to find the existence -of any such public polic3'. The matter is one for the stockholders to determine b}' their contract. If the public does not want to buy it does not have to. The legal rights of the present stockohlders are not affected; they contracted at the time they went in that they would have the advice, consultation with and action by (or rather the opportunity of securing such advice, consultation and action) of the then existing stock (and this subject to its reduction in accordance with law), but there was no contract that the corporation would, it it created further stock, give that further stock the voting privilege, so that the present stockholders might have the opportunity of securing advice by and consultation with and action by the new stockholders. I think 'that the reasoning of the cases,, of which Cone v. Russell & Mason, supra, is one, does not apply in the case of an issue of a new class of stock. Section 18 has received the consideration of the court of errors and appeals in Lloyd v. Pennsylvania Electric Vehicle Co., 75 N. J. Eq. 263, Mr. Justice Swa3rze delivering the opinion of the court. In view of that case it is hardly necessary to consider in detail the various statutes preceding the Incorporation act of 1896. The court holds that the legislation is new and must be so construed, and, referring to section 86, defining the rights of certain class of preferred stock, said: “That section is a survival of legislation going back to the early days of corporations in this state, at a time when only one class of preferred stockholders was authorized. Such is not now the case. Under the •present act it is possible, for example, to issue what are called sometimes ‘founders’ shares/ unless the rights of such shares are determined b3r the certificate of incorporation, they cannot be determined by the provision of section- 86, and the same reasoning is applicable to other classes of shares (aside from the ordinaiy preferred shares) which are issued by modern corporations.”

If a corporation may issue what are commonly called ‘’‘founders’ shares/’ I can hardly see how it can be said that it cannot issue a class, of stock called common, class B, without voting power. As I presently view it, this new stock is common. I do not agree with Mr. Hardin that the effect of this plan is to make the present common a class of preferred stock. I think that it is one of the subdivisions of the common. The essential elements of common stock are that the holders have an opportunity to make profit, if there is any, and participate in the assets after all other claims are paid, and bear the loss if there be such.

“By common stock is meant that stock which entitled the owners of it .to an equal pro rata division of profits, if any there be; one stockholder, or class of stockholders, having no advantage, priority or preference over any other shareholder or class of stockholders in the division.” Gooh § 12 p. 62.

I think he refers to material advantages, priorities and preferences,'and not to such privilege as the right to vote. See, also, Elkins v. Camden and Atlantic Railroad Co., 36 N. J. Eq. 233 (at p. 237). When there is found stock which answers so far as material interest in the property is concerned these conditions —this is the common stock. The legislature has provided that this common stock may be divided into any number of classes. The only distinction which I can think of must be in relation to voting rights. There may be class A voting stock, with full voting power; class B, allowing each share one-half a vote, and ■so on.

The bar, generally, I think, has put the construction that I have put on this section. • There was introduced in evidence some fifteen or more charters, some of very .large corporations, providing for classes of common stock with and without voting power, and one or more with the preferred stock having the exclusive voting power'. The conclusion I have reached is that the corporation may issue this peculiar class of stock.

2. a. That the purpose of the plan is to retain control in the present stockholders does not vitiate it. The question is one of good faith. There is no charge of bad faith in the present case. In Warren v. Pim, 66 N. J. Eq. 353 (at p. 408), Mr. Justice Swayzej dissenting, said (referring to .the voting trust) : "If the only object of the voting trust is to secure permanency of management, with a view to what the stockholder honestly considers to be the best interest of the corporation, I see no objection to the adoption of any necessary means authorized by the statute to secure that end. * * * But can it be contended that, if a corporation finds it necessary to borrow money upon bonds issued for a long term of years, the stockholders cannot, consistently with public policy, in order to secure the loan, vest the management of the corporation in hands satisfactory to the lenders and for a term commensurate with the loan ?” The opinion, though a dissenting one, secured the vote of five other judges. The case was decided by a vote of seven to six upon another point. Only two judges took a diametrically opposite view. The opinion, therefore, is entitled to great weight.

There are many cases in other states not necessary to cite holding that it is within the power of stockholders to combine for the purpose of maintaining a management in control, and if done in good faith, there is.no legal objection to it. The mere fact that one of the results of the plan may be to perpetuate the control in the hands of its present stockholders does not vitiate the plan. The stockholders were entitled to vote as their selfish interests dictated.

1). Some of the directors who voted for the plan to amend the certificate of incorporation became syndicate subscribers. There is no.evidence that they were subscribers before they voted. It is insisted by reason of their participation the entire transaction is void. I have found that there was no fraud (none is charged) and that the directors were in nowise (and could not have been) influenced by the fact that they were going to participate in this underwriting agreement. When they became subscribers they did so for the benefit of the company. But four out of the eleven directors became parties. It is said, however, that the court must find under the rule enunciated by the court of errors and appeals, in Steel Corporation v. Hodge, 64 N. J. Eq. 807, not only that the syndicate contract falls, but that the entire transaction is absolutely vitiated. I am not going to at this time pass upon whether or not this contract can be set aside in the present proceeding or whether the corporation can be restrained from paying out moneys under it, or whether the syndicate subscribers may be compelled to return to the corporation the moneys they may receive by virtue of it. ' No application for such relief is made. Complete justice may be done, so far as this branch of the case is concerned, without preventing the consummation of this.plan. The contract is not void,- but voidable, and may be ratified by the vote of the stockholders, and there is no evidence before me that full disclosure was not made at the meeting of February 14th, at which time the stockholders approved the. plan. I do not think that the complainant under the circumstances may now insist that this entire transaction should be set aside because of the rule of law which he invokes, at least upon this preliminary application.

3. The stock was purchased by the complainant upon the 31st of January. The bill was not filed until the 8th of February. The complainant knew that the 'meeting was to be held on the 14th, and he also knew that the effect of bringing this suit on the eve of the meeting would be to -create great disturbance in the company’s affairs. It has been held, and I think'ought to be the rule, that although the right of a complainant to bring a suit such as this cannot be affected by the fact that he bought in after the plan was promulgated, and for the purpose of bringing suit, yet to succeed at least on preliminary application he must move with the utmost speed. The length of time which will constitute such laches as to prevent preliminary relief depends upon each particular case. No excuse is given for the delay of nine days. Queere. Whether there was not such delay here as to warrant the court in denying temporary relief.’

4. Under the opinion of the Delaware court (State v. Brooks, supra; 79 Atl. Rep. 790), it would seem to follow that if this stock is issued, and I am wrong in my conclusion that it may be issued without voting power, the only effect will be that the contract which is expressed by the certificate of amendment is void, and the stock will, in fact, have the voting power. There is no question raised but that the corporation may properly increase its capital stock to the extent of $45,000,000, so, that if the only effect is that the stock will in fact have the voting power when everybody thinks now it has not, is any harm done ? Is there any irreparable injury which will warrant the award of temporary restraint ? The right of the holder of these one hundred shares to his dividend cannot be affected by these proceedings. It may be'that stockholders cannot be forced to take this stock in lieu of dividends, but- that is not a matter for present consideration.

5. In Fielden v. Lancashire and Yorkshire Railway, D. G. Sm. 535; 64 English Reprint 237, a case somewhat similar to this was brought to the attention of Vice-Chancellor Sir Knight Bruce. It appeared that the corporation was about to issue something over one million pounds of preferred stock, and the act was alleged to be ultra vires; the bill was filed by a holder of something like fifty-four shares out of a total of one thousand to enjoin the issuance of the stock. None of the stock had been issued at the time of filing of the bill, but 770.,000 pounds had been subscribed for and a payment of some ten per cent, made on account. In the present case, the stock has been- subscribed for by the syndicate. There has been no payment made on account.' The report states that the court was of opinion that much more mischief was likely to be done by “interfering now in a manner from which the court might afterwards see reason to depart, than by declining to interfere upon the present occasion, although it' might ultimately appear that the plaintiff was entitled to the interposition of the court.” The court was therefore of opinion it ought not to grant the injunction; but it desired that it be understood as giving no opinion on the question of right.

I should, therefore, be inclined, in this case, under the circumstances, even though it appeared to me that there might be some doubt as to whether this company had the power to issue this stock, to decline to interfere at this stage of the proceedings, and that upon the ground referred to in the above-cited case.

The order to show cause will" be discharged and the restraint vacated.


source: Caselaw Access Project

author: Walker, Ordinary.

license: Public Domain

text:
    Edwin Robert Walker, Ordinary.
    Frederic W. Stevens, Eugene Stevenson, Edmund B. Ljsíaming, Vivian 3VL Lewis, Joi-in H. Backes, John Grieein, John E. Foster and Merritt Lane, Vice-Ordinaries.
    William E. R. Smith, executor of William Runkle, deceased, appellant, v. Fidelity Trust Company, trustee of Elizabeth Haines, et al., respondents.
    [Decided April 9th, 1917.]
    Interest on a trust fund created by will, under the language used by the testator in this case, begins to run from one year after the death of the testator.

      On appeal from a decree of the Essex count}1- orphans court, made by Judge William P. Martin, who filed the following opinion:
    Williám R unkle, late of the county of Essex, died on the 31st day of January, 1914, leaving certain paper-writings purporting to be his last will and testament and codicil thereto which were offered for probate before the surrogate of the county of Essex. Caveats were filed against their probate and ,a hearing 'thereon was had by this court. The validity of the paper-writings as the last. will and testament and codicil was sustained by this court (37 N. J. L. J. 385), and the decree was entered thereon the 6th day of November, 1914, and was appealed to the prerogative court and there sustained by the .chancellor sitting as ordinary (sub nom. Smith v. Rwilcle, 07 Ail. Rep. 896), and an order there entered on the 3d day of November, 1915. An appeal was thence taken to the court of errors and appeals, and the decrees below were sustained on July 12th, 1916, except as to the executor. Sub nom. Smith v. I-Taines, 9S Atl. Rep. 317; Smith v. Rwilcle, 98 Atl. Rep. 10/86, and Smith v. Scholfield, 98 Ail. Rep. 1087.

    On July 19th, 1916, the decree -admitting the will to probate by this court was affirmed by the return of the decree of the court of errors and appeals,.and letters testamentary were duly issued on that day to William E. R. Smith, the executor named in the will.
    The twenty-fifth paragraph of the will provides substantially:-
    “I give and bequeath ,to Fidelity Trust Company, * * * its successors and assigns, the sum of thirty thousand dollars ($30,000) in trust, nevertheless, and for the following uses and purposes, to wit, that it shall invest the said sum and keep the same safely invested and pay the income, thence arising to Elizabeth Haines, wife of Lindley Haines of Germantown, Pennsylvania, during the term of her natural life,' and upon her death I direct that the principal of said trust property, together witli any and all income accrued thereon and remaining unpaid shall be paid over absolutely and free of trust in equal parts to my nephew, Daniel Runkle, and my -iliece, Mary- G. Runkle, both of Plain-field, New Jersey.”
    . The petition in this proceeding was filed on the 18th day of November, 1916, to recover the legacy, and alleges that the debts of the estate have been paid and that the executor has ample funds to pay all legacies. The executor has answered admitting all of the allegations of the petition and alleges that he is willing to pay tlje principal sum of $30,000 mentioned in such legacy, but refuses to pay the interest thereon from one year after the decedent’s death, and waives the tendering of a refunding bond that this court may pass upon the question as to whether the Fidelity Trust Company is entitled to the interest. The executor further alleges that on the 1st day of November, 1916, he tendered to the Fidelity Trust Company the sum of $30,000. A replication was filed which did not deny the alleged tender.
    The estate throughout the long litigation as to the existence and nature of the last will and testament and codicil of the decedent has been in the custody of an administrator pendente lite. The income during that period as shown by the account now on file indicates that a considerable amount has been earned, but, of course, not equal to six per centum on the estate.
    Upon receiving the bulk of the estate, the executor commenced liquidation with a view to an early payment of legacies. The will directs payment of trust funds which aggregate $800,-■000,p of which this trust for the benefit of Elizabeth Haines is one and the decision in this proceeding will apparently be followed with regard to the disposition of the legacies to establish the other trust funds.
    The question to be decided is whether this legacy to petitioner establishing a trust bears legal interest or will be entitled to only .a pro rata share of income actually earned, and, if so, from what date.
    Counsel representing Mrs. Haines have been permitted to file a brief on her behalf.
    The petitioner contends that general legacies in their nature carry interest, where no time is fixed for the payment of the legacy by the will, from one 3rear after the testator’s death. 2 Wms. Ex. 1286j Welsh v. Brown, 43 N. J. Law 37; Griggs v. Veghtc, 47 N. J. Eq. 179; Marsh v. Taylor, 43 N. J. Eq. 1; Ashton v. Wilkinson, 53 N. J. Eq. 227, and 40 Gyc. 2094, and that this is so, notwithstanding that by reason of litigation the estate did not come into the executor’s hands until after the 3rear expired, and that the rule applies to pecuniary legacies where a life income or interest is carved out o£ the legacy for a specific sum, citing Davison v. Balee, 45 N. J. Eq. 767, 771; lloagland v. Schencles3 Executors, 16 N. J. Law 370; ' Welsh y. Brown, supra; Green v. Green, SO N. J. Eq. 451, 453; Van Blarcom v. Eager, SI N. J. Eq. 7S3, 795.

    The executor contends that no interest whatever is payable, under the general rule, on a trust fund set aside under the terms of the will, as a trust fund is not a general legacy which carries interest from one year after testator’s death, and that if interest were paid on these funds it would tend to increase the corpus of the trust fund to the detriment-of those interested in the residuary estate, citing the case of Mailer of Sianlield, 135 N. Y. 292, 294-

    The contention of the executor appears to be without foundation in authority and requires no discussion in view of the decisions in the cases of Davison v. Balee, 44 N. J. Eq. 506-; affirmed, supra, and Welsh v. Brown, supra. The interest on the fund will be paid by the legatee as trustee to the life beneficiary. Her income should not be destined for the benefit of the residuary legatee.
    The court, in Davison v. Balee, by Mr. Justice Depue, says (at pp. 770,'771) :

    “The general rule, that,., where no time for pa3nnent is fixed by the will, a pecuniary legacy is payable in one year after the testator’s death, was adopted from the ecclesiastical courts, which allowed the executor one year to get in the estate and pay legacies. It was a rule designed for the advantage of the executor in the settlement of the estate, and, as said by Mr. Justice Story, ‘founded in the convenience of having a fixed period applicable to cases in general, which, if it operated injuriously upon some legatees, was beneficial to others, and reduced to a certainty what might otherwise be a fluctuating exercise of discretion in the executor or the court.’ Sullivan v. Winihrop, 1 Sumn. 1-13. Eor the sake of general convenience, the court holds the personal estate to be reduced into possession at the expiration of one year after the testator’s death, and upon that ground interest is payable upon general legacies from that time, unless some other period for the payment of the legacy is fixed by the will. Actual payment may, in many instances, be impracticable within that time, yet in legal contemplation the right to payment exists, and carries with it the right to interest until actual payment be made. This rule applies as well when the legacies are payable out of money due upon securities that could not by any possibility be collected within the year as to cases where the fund out of which it is payable consists of stock or securities bearing interest or profit from the testator’s death, and also to cases where the direction is to pay as soon as possible. Wood v. Penoyre, 18 Ves. 825—831/.; Pearson v. Pearson, 1 Sch. & Lef. 10; Webster v. Hale, 8 Ves. ^10; Benson v. Maude, 6 Mad. 17; Lord v. Lord, L. B. 2 Oh. App. 782; Hoagland v. Schenk, 1 Harr. 870; Sullivan v. Winthrop, 1 Sunvn. 1; Kent v. Dunham, 106 Mass. 586.'
    “Every testator making a testamentary disposition of his property is presumed to have framed his bequests in view of those general rules that regulate the construction of wills, and he has a right to assume that his will will be proved as soon as practicable after his death. He is not supposed to anticipate a litigation over his will that may postpone, its probate. An intent on the part of the testator that those persons to whom he has given pecuniary legacies shall have their legacies at the end of one year after his death, is deducible from the fact that he has specified no time when they shall be paid. The statute, like the common law rule adopted from the ecclesiastical courts, was designed for the convenience of the executor, to afford him a reasonable time to pay the debts and convert the assets into money, before he was required to pay legacies. At common law interest was allowed to the legatee from one year after the testator’s death, without regard to the date of probate, and I agree with the vice-ordinary that the statute in question was not intended to affect the rights of legatees beyond the postponement of the time when suit may be maintained for a legacy.”
    The above case involves a trust fund and is direct authority on the issue in the case at bar.
    The executor does not contend that the petitioner has no right to begin this proceeding until one year after the issuance of letters and operative probate on the 19th of July, 1916, under the authority of the ease of Smith v. Smith, 72 N. J. Ecj. 777.

      The executor also contends that at all events interest should •not run after the 1st day of November, 1916, when he tendered to the petitioner the principal of the fund. A tender to operate as a discharge of.an obligation and to stop the running of interest should be sufficient in amount fully to pay all of whatever was justly due at the time of the- tender. It was a tender, as alleged apparently in full satisfaction] of the legacy. No interest whatsoever was tendered. Therefore, the tender of an insufficient amount' may not affect the fights of the legatee as they were without the making of any tender.
    A decree should be entered directing the payment of the principal, with interest from the 31st day of January, 1915, to the date of the decree.

      Mr. Alonzo Church, for the appellant..

      Mr. Louis Hood, for the respondent.
   Walker, Ordinary.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Judge Martin.


author: Walicer, Ordinary.-

text:
    Augusta R. Pritchard, proponent and respondent, v. Emma Howell et al., caveators and appellants.
    [Decided January 18th, 1917.]
    The orphans court, being a court of general jurisdiction, has power to revoke its certificate transferring questions involved on the probate of a will into the circuit court for trial, when the certificate was made without notice of the application therefor to the adversary party, because it is 'a principle of law that in every proceeding concerning the rights of individuals thejr are entitled to notice of any motion affecting those rights, even though notice be not directed by the statute under which the proceeding is had.

      On appeal from an order of the Monmouth orphans court revoking a certificate transferring the questions involved on the probate of a will into the circuit court for trial.

      Mr. Thomas P. Fay, for the' appellants.

      Messrs. John S. AppUgaie & Son, for the respondent.
   Walicer, Ordinary.-

A paper-writing purporting to be the last will and testament of James Pritchard, deceased, was offered for probate before the surrogate of Monmouth county. A caveat was lodged against the probate by the decedent’s heirs-at-law and next of kin. The parties were duly cited and warned to appear before the orphans court on the issue- of will or no will. After the cause was transferred to the orphans court, the caveators, or some of them, petitioned that court to certify the questions involved in the controversy into the circuit court for trial before a jury pursuant to the statute. The certificate prayed for was granted.

Section 18 of the Orphans Court act (Comp. Stat. p. 3818) provides that the orphans court may, on application of the caveator, appellant or proponent, certify the questions involved in proceedings respecting the probate of a will into the circuit court for trial before a jury, and that upon filing such a certificate with the clerk of the circuit court, that court shall have jurisdiction to try the cause upon an issue to be framed. The certificate in question was made on March 3'0th, 1916, but, not being filed with the clerk of the circuit court, notice' was given on April 8th, 1916, of a motion before the orphans court on April 13th, then instant, to revoke the certificate. On the day the motion was argued the certificate was filed with the clerk of the circuit court. The judge of the orphans court held that the circuit court did not have jurisdiction by virtue of the certificate on the da}r the notice of the motion to revoke it was served. He further held that he had jurisdiction to make the revocation, which was ordered, citing Brothers v. Pickel, 31 N. J. Eq. 647, and Vincent v. Vincent. 70 N. J. Eq. 274. The reason which provoked the 'motion to revoke the certificate was that it was made without notice and that no opportunity was afforded the proponents to be heard.

In the case of Brothers v. Pickel, Chancellor Runyon, sitting as ordinary, held that the section of the Orphans Court act providing for the certification of questions involved in a controversy over the probate of a will, was discretionary and not mandatory. And in Vincent v. Vincent, Vice-Chancellor Emery held that the orphans court is a superior court of general jurisdiction and has the same authority over its decrees as may be exercised -by any court of general jurisdiction. These authorities, I think, sustain the asserted power of the judge of the orphans court in this case.

The orphans court is a court of general jurisdiction over the subjects within its cognizance and partakes of the powers of the chancery and prerogative jurisdictions. In re Hathorne’s Will, 97 Atl. Rep. 262. In that case, I held that the orphans court had power to vacate its decrees in a probate case.

In Mellor v. Kaighn (Court of Errors and Appeals), 99 Atl. Rep. 207, the difference between the orphans courts as courts of general jurisdiction and the surrogate’s courts as courts of special jurisdiction, was pointed out. And it was held that a surrogate’s jurisdiction is purely statutory, and that where he exercises jurisdiction his power is exhausted and he cannot open or vacate his decree for any cause.

The decisions, and they are quite numerous, support the power of the orphans court as a court of general jurisdiction, to deal with its orders and decrees in the same way and with like authority as other courts of general jurisdiction.

The caveators, as stated, filed an appeal from the order of the ■orphans court vacating the certification of the issue into the circuit court, and malee the point that no notice was required to be given of the application for certifying, because the statute does not in terms require it. True, the statute does not require it, but the proponent has rights in the subject-matter of the controversy, including the right to be heard as to the forum in which' those rights should be tried. And where a statute clothes courts with jurisdiction without prescribing the method of procedure, that procedure should be adopted, which is usual in like cases. In re Foran, 85 N. J. Eq. 288; In re Martin, 98 Atl. Rep. 510, 513.

That the proponent had a right to notice and opportunity to be heard upon the question of certification into the circuit court, I think is free from doubt.

Chief-Justice Hornblower, in New Jersey Turnpike Co. v. Hall, 17 N. J. Law 337 (at p. 339), said:

“Independent of the express provision in this statute, requiring a notice to be served on the nearest gatekeeper, no principle or rule of action is better settled at the common law, than that whenever a court or any person acting under legal authority, is to act judicially, or to exercise a discretion in a matter affecting the rights of another, the party thus to be affected is to have reasonable notice of the time and place, when and where such act is to be done, to the end that he may be heard in defence, or for the protection of those rights.”

In Chosen Freeholders of Hudson Co. v. State, 24 N. J. Law 718, Mr. Justice Elmer (at p. 719), said:

“It is a dictate of natural justice that when an act is to be done by a court, Or other authority, which is specially to affect a particular individual, reasonable notice should be given to him so that he may appear and be heard, if he thinks proper.”

In Van Tilburgh v. Shann, Ibid. 740, it was held that in every proceeding affecting property of individuals, the owners are entitled to notice of the proceedings, ali hough not directed by statute. The property of individuals cannot be affected without affecting their rights.

The order of the orphans court revoking the certificate for trial in the circuit court will be affirmed.


author: Stevens, Vice-Ordinary.

text:
    In the matter of the probate of the will of Edouward W. Methot.
    [Decided September 20th, 1916.]
    1. Prejudice and partiality are not grounds for setting aside a will.
    2. The evidence in this case is not sufficient to set aside the will oi this testator on the ground of undue influence.
    3. The term “interdiction” as used in French-Canadian law means a proceeding to obtain a curator of person and property, and includes the calling of a family council and proceedings in court, including a hearing.
    On appeal.

      Mr. Ralph E. Lum and Mr. Ercmhenbenj (of the New York bar), for the appellants.

      Mr. Edmund Wilson and Mr. Gilbert Collins, for the respondents.
   Stevens, Vice-Ordinary.

This is an appeal from the decree of the orphans court admitting the will of Edouwarcl Wenceslas Methofc to probate.

The testator was a French Canadian, born in the Parish of St. Croix, in the Province of Quebec, October 13th, 1839. He committed suicide in Red Bank, in this state, in June, 1914, at the age of seventy-six. After accumulating a considerable fortune as a lumberman, ho gave up his business and went to the city of Quebec to live. He purchased shares of a Quebec bank called La Caisse cTEconomie, and in 1886 ivas elected a director. In 1892 he became its president and remained so until 1907. Under his presidency the bank grew into a strong and flourishing institution. He is described by his colleague, Mr. Mareoux, as being at this period a very shrewd business man—a man of great force of character and an excellent manager and financier. In 1906 the directors wished to put into the directorate the cashier of a rival bank. This Mr. Methot thought inexpedient and he opposed it with all the energy he could commánd, but did not prevail. He declined longer to serve, and, as Ms whole life seems to have been wrapped up in this work, and as he had no other employment or interest, his retirement had an extraordinary effect upon him. He became greatly depressed. On the advice of his physician he took a trip to the United States, which did him no good, and in the late summer or early fall of 1907, his depression 'degenerated into melancholia. He was placed under restraint, first in his own house for nearly a jrear and then in the Asile St. Benoit, an institution conducted by the Brothers of Charity of the Quartier Longue Point, in Montreal, In May, 1910, he was released from that institution as completely cured. Then, in accordance with medical advice and his own inclinations, he resolved not to return to Quebec. He went abroad for the summer in company with Doctor Winfrey and . Doctor Winfrey’s wife, at whose house he had been staying after he left the hospital. He returned in the fall, going first,to a New York hotel and then paying a visit to his favorite nephew, Homer Methot, who lived at Eed Bank. He was so much pleased with this place that he bought a house 'there and continued to live there up to the time of his death. He made the will, which is the subject of the present controversy, September 16th, 1911—that is, nearly three years before his death. By this will he left such of his property as was not included in a deed of trust—property worth, it is said, about $60,000, to his nephew Homer. He had never married.

The will is contested, first, on the ground that he was insane when he made it, and secondly, on the ground that it was the product of undue' influence exerted by Homer. The other grounds stated in the petition of appeal are plainly untenable.

It is so clear that the testator was of sound and disposing mind when he made his will that it wordd be a mere waste of time to review the evidence. The witnesses for the appellants themselves virtually concede it. The only arguable question is whether he was unduly influenced.

The argument, as I understand it, is this: Homer Methot sought, with success, to instill into his uncle’s mind a prejudice against his Canadian cousins by suggesting that it was they who were responsible for putting him needlessly under legal restraint in the first instance, and that it was they, or some of them, who were also responsible for keeping him in the Asile St. Benoit after he had recovered his sanity; their motive being to prevent him from changing or revoking a will which, he had made in 1907 in favor of all his nephews and nieces.

This insistment requires a somewhat extended review of the evidence. It may be proper to state at the outset that the controversy does not touch the greater part of Methot’s estate. He disposed of that by a trust deed executed at the time he executed his last will. Speaking, generally, this trust deed gave certain small sums of money to certain annuitants and others. It reserved the balance of the income, amounting to about $24,000 per annum, to himself.' It provided that, on his death, Emeline Methot Fleming, his niece, a sister of Homer, should be paid the income arising from the investment of $100,000, which, on her death, was to go to her children; that Louis Ebens Methot, a brother of Homer, should be paid the income of $100,000 for life'; the principal, after his death, he being childless, to go to Homer; and .that Homer should have the residue. The property thus conveyed is estimated, in the evidence, to be worth half a million, and the conveyance was subject to a power of revocation. This deed, for some reason or other, has not been attacked. It cannot be overlooked, as it is so closely bound up with the will and with testator’s actions.

I have said, that in the winter and spring of 1907, Methot became greatly depressed because of the action of his co-directors. While-under the influence of this feeling he made the will of 1907, distributing his property (not, however, equally) among his nephews and nieces, of whom ho had about fifteen. He had previously, in 1898, made a will in which he had given these same nephews and nieces $10,000 a piece, and the residue of his estate to his nephews and niece, Homer, Ebens and Emeline, the same persons who took the bulk of his estate under the trust deed of 1911. His motive, in 1907, for changing the residuary disposition he had made in 1898 does not appear, but it is certain that he had no sooner made the will of 1907 than he became dissatisfied with it. This appears, not only from the testimony of a number of witnesses called for the respondent, but by the evidence of Mr. Marcoux, one of the principal witnesses of the appellant—the curator of his property and his intimate friend and business associate. That he did not then alter it is undoubtedly due to the fact that he so soon thereafter became afflicted with melancholia.

The nephews and nieces consisted of the Arcands, of whom there were five, and among them Adolph, who, with Mr. Marcoux, became curators; of the Thibeaudeaus, and of the Methots, of whom' there were five, viz., Homer, Ebens, Ernest, Emeline and Eugenie. There were also some grandnephews and nieces, children of deceased nephews and nieces. Of all these Homer was, undoubtedly, testator’s favorite. In point of age, they were seventeen years apart. Homer had been since childhood his companion on his hunting and boating excursions. He was accustomed two or three times every year to visit him at his home, first in Boston, then in Yonkers, and then in Red Bank. He admired him because of his business ability and success. On the other hand, he seems to have cared little for his other relatives—if we except Homer’s brother and sister and his niece J"osephine Arcand.

It appears that in the latter part of September, o-r the early part of October, 1907, his mental condition became such as to require action. The appropriate proceeding was, under French Canadian law, “interdiction;” a proceeding instituted for the purpose of obtaining a curator of the person and property. It included the calling of a family council and a petition to the court or its prothonotary, followed by a hearing. The petition to the prothonotary, in the present instance, dated October 8th, 1907,'contains the following:

“2nd. That for one week or more the said Methot has been struck and is habitually suffering of insanity and dementia, the illness of which he suffers being a monomania, which continually holds him in 'a state of •insane and violent fear of being despoiled of his property, keeps him from spending the necessary amount to take care of his person and of his fortune, which is very large, and even inclines, him to suicide, which he tried to commit last Sunday.” >

On this petition the deputy prothonotary made an "order, reciting the holding of a family council, at which, among others, líonier and Ebens Methot and Adolph Areand were named as being present and consenting; and reciting, 'further, the examination of Methot himself, and ordering that joint curators be appointed. Under this appointment Adolph Areand took care of his person and L. Cyrille Marcoux took care of his property.

There can be no doubt whatever that this action was proper, and that it wás taken with the consent and approval of the friends and relatives who composed the council. I think the weight of the evidence is, that Mr. Methot, himself, when he was restored to reason, did not disapprove of it and did not harbor any feeling of resentment against anyone for having taken part in it. What he did resent was his treatment by Adolph and by the physicians employed by him.

From October, 1907, to September, 1908, he was confined to his own house. Adolph gave up his work in Montreal and came to live with him, the decree giving him a salary of $125 per month. He engaged two men—the brothers Guillemette—who were to watch him and restrain him during his periods of violence. There has been no criticism of the treatment for the eleven months that he was so confined, except in reference to the strap used. In his crises, as they are called, he was firmly bound—sometimes to his bed. All the doctors agree that the practice was unnecessary and ought not to have been resorted to. Doctor Shirres, a prominent Canadian neurologist, testifies that the restraint was unwise. He says:

"I have been the head of the Hospital at Verdun (Canada) where we have over eight or nine hundred' patients and where the violence is very extreme and the restriction by means of a belt or straightjacket is a thing that is hardly ever known. Now it is‘only known among the very roughest class of patients, and) where the violence is very extreme; and if it is possible, we usually place that man in an isolated hall or room, and give him a chance so that he can walk it off and try it out, and if that fails, we may have to use restraint, but it is a thing that is very seldom used. I do not suppose it is used, in our hospital three times a year.”

Doctor Wilson, a New York neurologist, says that the propriety of using a strap

“depends upon the type of the insanity and the financial ability of the patient. * * * If you have a person who tends to be violent, in a small room, putting- him in a very large room, ample room or suite of rooms, they will have none of them at all, for they suffer from the feeling—from a delusion of theirs—that the walls are coming on them. * ® * If a person who tends to be violent is allowed sufficient space to work off his primary excitement in motor activity they very often will quiet perfectly. * * * There are many devices and- many methods that, if the person has the financial ability, can be applied and render physical restraint unnecessary either by apparatus or by people.”

Doctor Turcot had been the attending physician of. Methot for many years, but some months before he ’ became insane, Methot had been consulting Doctor La Rue, and the curator con- ■ tinued to employ this latter gentleman from October, 1907, to March, 1908, when, becoming dissatisfied, he dismissed him and went back to Doctor Turcot. Now, both Doctor Turcot and Doctor La Rue disavow all responsibility for the use of the strap. They say they did not direct it or know of it. Doctor Shirres says that Doctor Turcot told him afterwards that he was firmly of the belief that the use of that restraint in earlier days was, undoubtedly, a big factor in Methot’s mental break-up. Adolph, the curator, says the strap was used to the knowledge of Doctor La Rue, and that its use, for a while, continued after Doctor Turcot took charge. In this he is corroborated to some extent by the two attendants. On the other hand, Jeanne D’Agneau, the housekeeper, says that the strap was procured by Adolph at the suggestion of the man who tended the furnace, after a spell of unusual violence. Adolph, himself, admits that on one or two occasions he helped to bind his uncle.

1 have been thus explicit in stating the evidence as to the strap, because it may have had more or less influence in creating a prejudice against Adolph and Adolph’s family. The uncontradicted evidence of Doctors Shirres and Wilson is that in cases of melancholia (but not in other forms of insanity) the patient after recovery has a clear recollection of what occurred during his illness. While the testimony fails to shew that Mr. Methot evidenced any feeling of hostility to Adolph, except while he was assisting in binding him, the memory of what he had done, and, if we may believe the doctors, unnecessarily done, was not likely to increase his regard for him, and more particularly when he remembered, as he did, that Adolph, not only after January, 1908, prevented Homer and other friends from visiting him, but even from communicating with them by letter.

D.octor Turcot was, undoubtedly, opposed to. harsh methods, and under his care the patient improved. In August, 1908, Homer went to Quebec and asked permission to see his uncle. The doctor refused on the ground that quiet and isolation were indispensable to a recovery. Later, in the same month, Homer went again—t^his time with his brother-in-law, Mr. Fleming. Again they asked permission and were refused. After the second refusal Homer says that he and Fleming watched near the house until his unclé went out driving, and that then they took a carriage and followed. At a certain point on the road his uncle saw him, left his own carriage, and with the consent of the attendant rode for a while in theirs. Homer says that his uncle, in the beginning, talked rationally, but coming toward home “was not all himself.” He entreated Homer to take him home with him, but, of course, Homer refused. Doctor Turcot says that this visit made him worse, and that this, and a visit which he made to the Caisse d’Economie, “which threw him all overboard,” determined him to put him in an asylum for the purpose of more complete isolation, and that after personal investigation he fixed upon the Asile St. Benoit, in Montreal, as the most suitable. Accordingly, he was taken there. The institution is thus described, and, as I think, fairly described, by Mr. Greenshields, employed by Homer as his counsel to secure Methot’s release; then a prominent legal practitioner and after-wards appointed to the bench of the superior court of the province. He saj^s:

“I think the Brothers who conduct the St. Benoit Asylum are very worthy, honorable people. But it is limited in its facilities for the treatment of patients. It is filled or at least habituated largely by inebriates of a, certain class. * * * It is: a small place—very small grounds around it—well maintained' for its size. I fancy that the charges are very limited and that they give quite a quid pro quo for what they charge •—-not a place for the treatment of men whose social and financial condition were like Mr. Methot’s.”

It seems to have been the most suitable place that was available in the Province of Quebec. Doctor Shirres says that under like conditions he alwaj’s sends his patients to an institution in the United States. Methot was not sent to such an institution, possibly because of local pride or prejudice, or possibly because the curators did not want him to' go out of the jurisdiction and, so be to some extent, beyond their control. If his cure alone had been the sole consideration, an intelligent and liberal-minded guardian would have taken this course. The cost did not enter into the calculation, foil Methot was a bachelor with a yearly income, as I have said, of $24,000.

_ On his arrival at the hospital, in September, 1908, he 'was placed under the care of Doctor Villeneuve, a leading Montreal neurologist. He had begun to improve while under Doctor Turcot’s care, and he continued to improve, and, I think, rapidly, up to May, 1909, when Father Lovett, of whom I shall now speak, regarded him as entirely sane. He had been almost completely isolated.- I say almost, because, although Adolph swore on his direct examination that he allowed no relative to see or correspond with him, he was forced by the exhibition of letters, to admit on his cross, that he had on several occasions allowed him to write to and receive letters from his (the testator’s) brother-in-law, Doctor Arcand, and also to write to other members of the Arcane! family.

Father Lovett was an inmate of the asylum, confined there as an inebriate, and not, as the evidence would indicate, entirely dependable. His letters show him to have been a highly-educated and intelligent man, and so it is testified. He was Mr. Methot’s constant companion. At Methot’s request, in June, 1909, he wrote a series of letters to Homer in which he expressed the opinion that his uncle was sane and ought not longer to be confined. In his first letter he said:

“Never has the writer heard a word- or a syllable from your uncle’s lips that- would in the least degree indicate any mental derangement. On the contrary, considering the loss of sleep and the consequent nervous prostration your uncle suffered from, the writer considers his present mental strength remarkable and extraordinary. Ilis memory of past events could not have been more ready and- retentive when he was thirty or forty years younger, and his intelligent discussion of financial affairs could not' have been clearer -when he was president of. the Caisse d’Eeononlie.”

Two months' before that Homer had received a note from Mr. Casgrain, a prominent Montreal lawyer, who afterwards represented the curators and is now a member of the Canadian Government, in which he says that as a fast friend of Methot’s for quite a number of years,- he writes to say that he has heard from an excellent source (that source, as I understand, being. Lovett and an attendant named Cote) that his old friend is completely cured, and that he (Methot).

“thinks it is very hard that he should be obliged to remain in this place among a lot of people who are detained there either because they are confirmed drunkards or because they are suffering- from some other disease which causes insanity, such as epilepsy. He seems to think that if it is necessaiw that he should be restrained, with, the means at his disposal, he might have surroundings not only more congenial but also more conducive to the complete restoration of his health.”

Tn his letter of May 21st, Lovett had suggested that Homer put himself in communication with the legal iinn of which Mr. Greenshields was a member. On June 15th, 1909, Homer went to Montreal with his brother-in-law, Fleming, and saw him; Mr. Greenshields made arrangements for a meeting with Father Lovett and Doctor Shirres on the day following. It was thought better to make an effort to have Methot examined, rather than to resort to habeas corpus proceedings. Mr. Greenshields first wont to the hospital and asked the superior’s permission to see Mr. Methot himself, or to allow an outside doctor to see him. He was told that lie would have to apply to the curator. He did so, and received a letter from Adolph in which he said:

“As to the consultation you demand, my personal opinion is that the doctors who care for Mr. Methot are honorable and competent men and can perfectly well instruct Mr. Homer Methot on the condition of his uncle.”

He said further that he would not do anything without their advice, and added: “I regret much these efforts because Mr. Homer Methot knows, personalty, as well as myself, that unfortunately ' our dear uncle is insane.” Homer, in fact, did .not know his uncle’s condition at that time, except in so far as he was apprised of it by Lovett, and the evidence certainly, raises a doubt as to whether he was then insane.

Mr. Greenshields succeeded at last in bringing about a meeting between Doctor Shirres and Doctor Villeneuve. Doctor Villeneuve suggested that Doctor Shirres postpone his examination for some weeks, and to this Doctor Shirres assented. On January 13th, 1910, Doctor Shirres made a- thorough examination of Mr. Methot and found him, as he says, perfectly sane. For greater certainty he repeated his visits on the 20th and 26th of the same month. He was confirmed in his first opinion and he reported the result. Then, on January 27 th, there was a consultation at which Doctor Villeneuve, Doctor Dechatelet, the physician in charge of the hospital, Doctor Turcot, Doctor Bourque and Doctor Shirres attended. Doctor Shirres said that he was absolutely of opinion that Methot was a sane man and fit to bo at liberty. Doctor Dechatelet said he did not think him sufficiently recovered to be given his liberty at that time, but did not say that he had any delusions. None of them thought he showed any symptoms of insanit}’, but that, at times, he was a little bit depressed and excited. A middle course was taken. He was to be given more liberties, and if no bad results happened, these liberties were to be extended, and he, finally, released. First, he was allowed to make trolley trips to various parts of Montreal; then he was taken from the hospital and placed in charge of a young Doctor Winfrey and Iris wife at their home, and, finally, having stood these tests, the interdiction was, on May 18th, 1910, raised by the court which had imposed it.

Up to this time Homer had not been permitted to see him, but he was allowed to correspond with him after he had gone to Doctor Winfrey’s. On May 18th, he met him for the first time in over two years.

Greenshields had advised Methot after his release to take things easy and let, some Montreal trust company take charge of his property. He thought the advice good, but said he would prefer to have it managed by his nephew Homer. Accordingly, he gave Homer a full power of attornejr to verify the curators’ accounts and to take charge of what they handed over to him. Homer continued to manage the property until the trust deed was made in September, 1811, and thereunder he became the trustee. On May 26th, 1910, Mr. Methot went before two notaries in Montreal and revoked the will of 1907 and revived the will of 1898.

His physicians advised him not to return to Quebec to live. In June, in company with Doctor Winfrey and his wife, he took a trip to Europe, returning in the fall. He. first stayed in a hotel in New York and then made a visit to Homer at Red Bank. .He was so much pleased with the place that he leased and after-wards purchased the house in which he died.

The will of 1898 gave some legacies to Quebec charities; $10,-000 a piece to fifteen nephews and nieces, or their representatives, and, with some deductions, the residue to Homer, to Homer’s brother Ebens and to Homer’s sister, Mrs. Fleming. The will of 1907 gave legacies to various Quebec charities; $16,-832.50 a piece to substanially the same'persons to whom nine years before he had given $10,000, and the residue, with some deductions, to Homer Methot, Oscar Arcand, Alphonse Arcand, Adolph Arcand, Arthur Arcand and Josephine Arcand.

With a view to establishing undue influence or what in the appellant’s argument is styled a conspiracy between Homer, Ebens and Mrs. Fleming, of which I cannot find any evidence, great stress was laid upon what occurred after the interdiction was raised.

Now, there is no direct evidence that Homer used any influ- • ence to induce his uncle to make a will in his favor. He did not live with him, and he was not consulted about its provisions. Methot, as far as I can see, was his own master. The whole argument rests on inferences.

To judge fairly of Methot’s acts we must put ourselves in his place and view things from his standpoint. At the time of his release, and afterwards, what did he remember and what did he know? The evidence, as I have said, is that a melancholiac on .recovery remembers what occurred during the period of his insanity. We may, therefore, reasonably conclude that he knew that he had been interdicted and that Homer on the one hand and the Arcauds on the other had concurred in the proceeding. He knew, and admitted, as the evidence abundantly proves,' that he had really been insane. As a man restored to reason, he must have recognized the fact that the interdiction was necessary. and that he should entertain no grudge against those who had brought it about. It must be borne in mind that we axe dealing with a highly-intelligent business man who could look at things as they were.

Then, again, we may reasonably conclude that he remembered that he had been bound and that Adolph had helped to bind him, conduct which he is said to have resented. It is probable that he knew that such treatment was antiquated, and, in his case, with his resources, unnecessary, He must, too, have remembered that when at the Asile. St. Benoit, after he had thought himself restored to reason, he had repeatedly written to different members of the Arcand family begging them to help him regain his liberty, and that they had done nothing. He may have remembered, too, that Adolph had allowed him to correspond with members of the Arcand family, and had not, after January, 1908, allowed him to see or correspond with his favorite nephew, Homer; and he may, moreover, have suspected, without harboring. any insane delusion, that the Arcand family thought it to their interest to keep him where he was, for the reason that they would get the bulk of his residuary estate if he died in confinement. I say this because Doctor Winfrey, one of appellant’s witnesses, says that he 'so expressed himself. He told Mrs. Eitchie that the Arcands had their heritage whilst they kept him in St. Benoit, and not a cent would they get from him. He may have thought,, too, and very reasonably, that afflicted with the type of insanity from which he suffered, and possessed of the financial resources that he possessed, he should have been confined in an institution more fitted to his condition, even if it were necessary to send him over the Canadian border. He knew, too, that it was Homer and Fleming' who had been instrumental-in' procuring his release, and that in all probabilit)^ except for Homer’s efforts, and the threat of legal proceedings, he would have been detained longer than he was. A few months even, for a man of seventy-three, was a considerable fraction of the time that he could hope to live.

Now, in view of all these considerations, is it surprising that on his release he should have given to Homer, whom he admired as a man of the same type with himself, viz., a successful business man, who had long been his favorite nephew and companion, and who had now become, in a way, his benefactor, the care of his property in preference to some trust company, whose ■officers.he did not know; and was it extraordinary that he. should have wished to revive a will which gave to Ilomer, Ebens and Mrs. Fleming the bulk of his property, and to revoke a will which had not been satisfactory to lnm from the time he made it, and which gave much the greater part of his residuary estate to the Arcand family. It seems to- me that it is evidence of his moderation and good sense that, at the time of his release, he went no further than to put the Arcands in the position they had occupied prior to 1907.

In 1911 we find him permanently domiciled in this state. In July of that year—two months before he made his will—he had applied for naturalization papers. He had never, as far as the evidence discloses, cared much for any of his Canadian relatives except his sister, Mrs. Arcand, who predeceased him, and Josephine Arcand, to whom he had given stock of the Chinic Company in 1907. He did not visit or correspond with his Cauadian cousins. Evidently, he had lost interest in them. He had the same right to discriminate between his relations that every testator has. Prejudice and partiality ¿re not, under our system of jurisprudence, grounds for setting aside a testament. He chose to give his property to those who had been his favored legatees as far back as 1898. When he made the will of 1911 he conducted his own household. Ho exercised a very careful supervision over his affairs. He went where he pleased and did what he pleased. The evidence fails to show that his mind or his will were weak. I-Ie had, indeed, given to Homer, in .whom ■he had implicit confidence; a power of attorney to manage his property, but it was a power that he could at any time revoke. Homer was his agent during his pleasure. As far as I can see, Homer had no dominating influence over him. He was not at the time his trustee, for the trust deed was contemporaneous with the will. In view of what had happened, it cannot be said -that his disposition cannot be accounted for except on the theory that his prejudices were the product of an insane delusion or that they had their origin in false or misleading suggestions made by the person to profit by them.

The idea that he was under the hypnotic influence of Doctor Shirres when he made the will of 1911 has support only in the imagination of counsel. Their argument is unusually vituperative. It questions the motives of the respondents’ witnesses and asks that implicit reliance be accorded the appellants. I find no ground for the distinction.

The evidence is very voluminous, and the case is here stated only in outline, but that outline appears to be sufficient to show that the decree of the orphans court should be affirmed.


author: Stevens, Yice-Ordinary.

text:
    Arabella Methot Massicotte et al., appellants, v. Homer Methot et al., respondents.
    [Decided November 16th, 1916.]
    Property transferred to residuary legatees by a trust deed executed contemporaneously with the testator’s will cannot be considered as part of testator’s property on an application for allowing counsel fees.
    On motion for counsel fees.

      Mr. Ralph E. Lum, for the applicants.

      Mr. Edmund B. Wilson and Mr. Gilbert Collins, contra.

   Stevens, Yice-Ordinary.

This is an application for counsel fees. The orphans court allowed $2,500 for counsel fees and disbursements. The disbursements alone are stated to have amounted to over $2,600. Of these $1,973.10 are, I think, properly allowable. This leaves $527 for counsel fees. It is said that twelve days were spent in Canada in the taking of depositions and that the trial lasted twenty-three days. Besides this there was necessarily time spent in preparation for trial and argument. Obviously, $527 was not an adequate allowance, if the appellants were entitled to any allowance at all, as the orphans court found they were. The estate is said to amount to about $60,000. The appellants contend that because, contemporaneously with the execution of the will, a trust deed was executed, the effect of which was to give to the residuary legatee under the will an estate exceeding four hundred thousand dollars, I should take this into account and consider the estate as one of half a million. There is no controversy pending over the validity of the trust deed and the orphans court had nothing to do with it. The property transferred thereby cannot be regarded as part of testator’s estate.

Having regard to the amount disposed of by the will, and the very unusual features of the case, requiring and justifying an exhaustive inquiry, I think that the appellants should be allowed, in addition to their expenses ($1,973.10), a counsel fee of $3,-000. I am not prepared to say that the parties were not entitled to an appeal, and I therefore think that there should be an additional allowance of $1,500 in this court and the costs of printing.


author: Leaming, Vice-Ordinary.

text:
    In the matter of the estate of Derestus B. Steelman, deceased.
    [Submitted December 18th, 1916.
    Determined January 5th, 1917.]
    1. Executors, are not entitled to commission, for services which could only be performed by them as trustees.
    2. Proceeds of sale of land devised to the executors as trustees, and rents derived from the same property after testator’s death, are received by the executors in their capacity as trustees.
    3. Executors may employ counsel when necessary, but are not entitled to allowance for the services of a proctor in making up their accounts.
    4. Objections to allowance of commissions and proctor’s fees may be made for the first time in the appellate court.

      Oil appeal from decree of orphans court from allowances made to executors for commissions and proctors’ fees.

      Mr. Clarence L. Cole, for the appellant.

      Mr. Enoch A. Higbee and Messrs.-Bolte, Sooy & Gill, for the respondents.
   Leaming, Vice-Ordinary.

The object of this appeal is to reduce the allowances which have been made by the orphans court of Atlantic county to certain executors for their commissions and for certain services of their proctors.

Testator died November 29th, 1914. His will and codicil were probated December 10th, 1914, and letters testamentary were issued on that day to the two executors named in his will.

The provisions of the will and codicil, so far as material herein, are as follows: After directing the payment of debts and funeral expenses and providing that his widow may occupy a certain property during her lifetime, free from rent and cost, of upkeep and municipal charges, testator bequeathed and devised to the two persons whom he appointed executors all his property, real and personal, subject to the charge just named in favor of his widow in trust. The trust, as declared by testator, .directs the trustees to manage, sell, invest and reinvest the entire estate, except the property which the widow was allowed to occupy, and to pay the rents, issues and profits thereof to testator’s widow and to certain other persons therein specified during their respective lifetimes in equal shares, such payments to begin six months after testator’s decease. Detailed provisions are then made for the distribution of the income at the death of the respective beneficiaries and also for a final distribution of the corpus.

One year after testator’s death final accounts of the executors were filed and noticed for settlement as such on December 29th, 1915. No one appeared to object to the. accounts and they were allowed as filed except that the judge of the orphans cou'rt entered in the accounts as allowances $3,000 as commissions for the executors and $150 as an allowance for their proctor.

The specific grounds of appeal as set forth in the petition of appeal are—first, that the allowance of $3,000 as commissions to the executors is grossly excessive and should not exceed $1,200; second, that no legal services were performed for the executors other than those for which payments had already been made and entered in the accounts as filed as expenditures.

The accounts, as stated and allowed, first charged accountants with the amount of the inventory and appraisement:

§25',6S4.91
Then charged as the purchase price of real estate sold by the executors........................... 87,500.00
Then charged, in detail, as net income from rents.... 3,545.54
Then charged as income from investments.......... 3,712.6S
Making a total of assets....................if120,443.13

The allowances embraced all money that had been expended and included $5,220 which had been distributed to the several cestuis que trust, pursuant to the trust created by the will, as well as all items of expenditures touching the real estate.

It will be thus observed that the settlement made by the executors included all cash that had been received for the estate from any source, irrespective of whether it could appropriately be said to have come to their hands in their capacity as executors or as trustees, and all expenditures of cash- for all purposes, whether such expenditures should have been appropriately made by them as executors or as trustees, and that the commissions which were allowed were approximately two and one-half per cent, on the aggregate amount received for the estate from all sources.

Appellant, accordingly, now objects to the allowance of the accounts in that manner, and urges that the accounts should be restated and be made to exclude all transactions that should have been performed by the accountants in their capacity as trustees.

That objection, however well founded, cannot be ndw considered, except for the purpose of ascertaining whether the allowances for commissions and proctor fees were erroneous, for the petition of appeal specifically designates only those two items for purposes of review. Rule 62 of this court restricts the operation of. the appeal to the items specifically designated in the petition of appeal so far as concerns the allowance or.rejection of items of charge and discharge. •

But if the orphans court has allowed .commissions to the executors, as such, for services which could be only performed' bj1' them in their capacity as trustees, and there has thus resulted an excessive allowance, that error should be here corrected.

It has been specifically determined by our court of errors and appeals that where the same person is an executor and a trustee under a will, he cannot, in his administration of. any part of the property committed to him, be said to act in a duplex character; that "each act done must, in contemplation of law, be that of an executor or that of a trustee.” Pitney v. Everson, 42 N. J. Eq. 361. As already stated, the accounts which were filed by the executors as such, and allowed by-the court, included all transactions of the executors as well as all transactions of the trustees. The receipts included the proceeds of sale of real estate and rents therefrom. The will by its terms vested the title to this real estate as well as the title to all personal property in the two accountants as trustees for the purposes of the trust. That trust title was necessarily subservient to the right-of the executors to receive and administer so much of the trust property as should be required to satisfy all legal obligations of the estate; but the personal property left bjr testator was far in excess of all such needs and the power of sale of the real estate was by the terms of the will given to the trustees and not to the executors. In these circumstances the proceeds of sale of the real estate, as well as its rents accruing after testator’s death must, in contemplation of law, be regarded as having been received by the trustees. Under the provisions of the will the executors could neither sell the- real estate nor properly receive the proceeds of sale of the real estate or the rents accruing after testator’s decease in the absence of some necessity for that purpose arising from the exigencies of administration. The testimony which has been taken disclosing the circumstances surrounding the settlement renders it entirely obvious that the allowance of commissions as made by the orphans court was predicated upon the assumption that the executors, as such, were entitled to compensation for administering the aggregate amount of assets disclosed by their accounts as filed. That was manifest error. The importance of confining the executors’ allowance to commissions on the amount that ■ properly came to their hands as executors will be observed by the circumstance that when commissions are hereafter appropriately sought by the same persons as trustees, it will be impossible to then inquire whether the allowance to the executors may not have been chiefly based upon peculiar or special difficulties attendant upon the administration.

I am also of the opinion that the allowance to the proctor was without authority of law. ' In Kingsland v. Scudder, 36 N. J. Eq. 284, it was held that an executor has a right to employ counsel when necessary or proper to protect the estate, or to enable him properly to manage it, and the reasonable charges for such services will be paid out of tire estate; but that he will not be allowed for such work, though done by counsel, as he, in contemplation of law, is bound to do himself; and in Wolfe's Case, 34 N. J. Eq. 223, it was held that no allowance can be made for compensation of an accountant in making up an account because the administrator’s fees must be presumed to cover his trouble and expenditures in making up his account. To the same effect is In re Ramsey's Estate (New Jersey Prerogative Court), 66 Atl. Rep. 410. The account, as filed and allowed, contained several allowances for. money paid counsel for legal services. The additional allowance of $150, which is here in question and which was made when the account was before the orphans court for settlement, does not appear to have been for any services of the proctor other than assisting the executors in making up their accounts and advising them touching the manner in which the accounts should be stated and attending at the court settlement at which the accounts were allowed without contest. I am unable to doubt that the proctor performed all the work touching which he has testified; b.ut the authorities appear to cast the burden of such work upon executors.

It is objected in behalf of respondents that appellant cannot maintain this appeal in any event because the objections now made were not made before tire orphans court. It has been frequently asserted in this court that appellants will be confined on the hearing of appeals to the objections made before the orphans court. But that rule cannot be regarded as of universal application. When exceptions are filed to accounts, or when proceedings are instituted in the orphans court to open accounts for fraud or mistake, it is held to be reasonable and fair to limit the controversy in this court on appeal to the objections specifically presented in the orphans court. But no exceptions can be filed in the orphans court to items of the nature of those here in dispute. An executor cannot pay himself his commissions when or prior to the time his account is filed. In consequence, his account must remain open as to commissions until the court determines the amount. Lathrop v. Smalley, 23 N. J. Eq. 192; Wykoff v. O’Niel, 72 N. J. Eq. 880. Nor could .exceptions have been filed to the allowance of the proctors’ fees here in question, for that allowance was made at the court settlement. Nor could either of these allowances have been appropriately made the basis of a proceeding to open the accounts for fraud or mistake. I am, accordingly, unable to adopt the view that appellant cannot be now heard touching the correctness of these allowances. See Anderson v. Berry, 15 N. J. Eq. 232; Pomeroy v. Mills, 35 N. J. Eq. 442; S. C. on appeal, 37 N. J. Eq. 578; Kingsland v. Scudder, 36 N. J. Eq. 284.

The testimony discloses that the duties performed by the executors have not been attended with special difficulty, trouble, risk or pains. .Two and one-half per cent, on the assets which, in legal contemplation, came to their hands as executors, will afford them ample compensation for their actual pains, trouble and risks. Under the provisions of the will the trust will obviously continue for many years and the trustees must be hereafter paid for their services as trustees.- From the total assets, $120,443.13, disclosed by the accounts, on which amount the orphans court allowed, approximately, two and one-half per'cent, commissions, there should be deducted $91,042.54 as assets which the law contemplates as having been in the hands of the trustees under the will. This leaves, as the basis of commissions for the executors, as such, $29,397.59. On that amount two and one-half per cent, should be allowed as commissions. -

I will advise a decree to the effect above stated.


author: Teaming, Vice-Ordinary.

text:
    In the matter of the estate of Obed W. Short, deceased.
    [Submitted December 4th, 1916.
    Determined December 23d, 1916.]
    1. Interest on general legacies is payable ordinarily from one year after testator’s death, but where a will fixes time of payment of a legacy, interest begins from the time so fixed.
    2. Under the language of the will in question, held that it was not the testator’s intention to deny interest on legacies after the expiration of one year from his decease.
    On appeal from the orphans court .of Atlantic county touching the allowance of interest on general legacies.
    il/?\ Harry Wootton, for the appellant.

      Mr. J. Fifhicm Tatem, for the respondent.
   Teaming, Vice-Ordinary.

The single question presented by this appeal is whether the several persons to whom general legacies are given by the will of Obed W. Short are entitled to receive interest on their legacies from and after the expiration of one year from the death of testator. The decree of the orphans court awards interest from that date; the administratrix has 'appealed from that decree.

The material provisions of the will of Obed W. Short are as follows:

“First: I devise all my real and1 personal property, of whatever the same may consist, or wherever it may be situate, to my wife, Martha Short, and to her heirsi and assigns; subject, however, to the following bequests, which I hereby make and charge against said- property, to become due and) paid out of moneys that may be derived from the sale of my real and personal estate.
“Second: I bequeath and direct my executrix to pay out of the moneys to be derived from the sale of my real and personal estate, the following bequests.” (Then follow the several bequests of money which occasion this appeal.)
“Fifth: All the residue of my property, both real and personal, I bequeath unto my said wife, Martha Short.
“Sixth: I appoint my said wife, Martha Short, executrix of this, my last will and testament, with power to sell and convey all my property, both real and personal, and I direct that my property bq sold within three or five years at any time which my executrix may deem best for the interest of my estate.”

It is urged in behalf of appellant that the provisions of the sixth item of the will which allow the- executrix five years to dispose of the assets of the estate, when considered in connection with the first and second items of the will which make the legacies a charge on the assets and direct the payment of the legacies out of the moneys to be derived from the sale of the assets, and especially that part of the first item of the will which provides that the legacies are to become due and paid, out of the proceeds of sale of the assets, disclose an intent or purpose on the part of testator to deny to the legatees any interest on the legacies for a period of five years should the administratrix. deem it for the best interest of the estate to defer the sale of the assets for that period of time.

The general rule touching interest on legacies is that interest is payable on a general legacy from one .year after testator’s death. It is specifically pointed out- in Davison v. Rake, 45 N. J. Eq. 767, that this rule is of ancient origin and founded on general convenience, and bequests must be understood to have been made with reference to it. This rule has been enforced with uniformity in all cases in which testator has not fixed some other period for the payment of the legacy. But where the will fixes a time for the payment of the -legacy the legacy will draw interest from that time. Accordingly, the general rule has at times been phrased that interest commences to run when the legacy is demandable. This statement of the rule fully satisfies ordinary conditions; thus, when a specific time is fixed by the will for the payment of the legacy, it is demandable at that time and will draw interest from that time, of, if payable ón the happening of a specific contingency, such as the death of a life tenant, it is first demandable at that time and will draw interest from that date, providing the death of the life tenant occurs after the expiration of one year from the death of testator; hut the inaccuracy of that general statement of the rule, when applied to all circumstances, is disclosed in Davison v. Rake, supra, where it was held that the circumstance that where no time for payment is fixed by a will our statute gives executors one year after the date of probate of a will in which to pay a general legacy is not operative to modify the rule that interest on a general legacy will begin to run at the expiration of one year from the death of testator. And, again, in Warwick v. Ely, 59 N. J. Eq. 45, it is held that while provisions of a will, similar to provisions of the sixth item of the will here in question, giving to executors three years to settle the estate, were clearly operative' to deny to a general legatee the right to require payment of his legacy before the end of that period, yet the provisions were not operative to deny interest to the legatee after the expiration of one year from testator’s death.

An examination of the adjudicated cases will, I think, fully disclose that the general rule for interest to commence to run on a general legacy at the end of a year after the decease of testator has been -recognized and enforced in all cases in which it is not made clear by the provisions of the will that testator intended to the contralor, and a contrary intent will not be inferred either from provisions of a will giving the executors a longer period of time in which to make settlement of the estate or from provisions making a legacy payable out of securities which' the executors are not required to call in within the year or even out of securities which cannot be called 'in within the year. The authorities cited in Davison v. Rake, supra, are to that effect. Based upon the -authorities there .cited our court of errors and appeals said: "Actual payment may, in many instances, be impracticable within that time (one year), yet, in legal contemplation, the right to payment exists, and carries with it the right to interest until payment be made. This rule applies as well when the legacies are payable out of money due upon securities that could not by any possibility be-collected within the year as to cases where the fund out of which it is payable consists of stocks or securities bearing interest or profit from the date of testator’s death, and also to cases where the direction is to pay as soon as possible. In Wood v. Penoyre, 13 Ves. Jun. 325, the legacy was made a charge on a certain mortgage and was to be paid out of money due on that mortgage “when recovered.” It was. there held that although the mortgage out of which the' legacy was payable was not capable of being called in within the year, it should be considered as having been got in within the year, in the absence of any provision of the will “plainly indicating an intention of testator” to “exclude the rule of the court.”

Consistently with the authorities already cited it must be held that the provisions of the will here in question cannot be said to indicate an intention upon the part of testator 'to deny interest on the legacies after the expiration of one year from his decease with that degree of clearness and certainty which is necessary, to overthrow the general rule. -

. The language of the first item of the will making the legacies a charge on the entire assets of the estate, and “to become due and paid” out of the proceeds of sale of the assets, standing alone, carries no suggestion that 'the .assets may not be sold within the year ordinarily allotted for that purpose. The provision of the sixth item of the will allowing five years for the executrix to sell the assets does not deny either her right to sell or the propriety of her selling within a year from testator’s death; it assumes no more than that further time may be needed for tire sale of the assets, and allows such additional time, if needed. That item, standing alone, cannot be said to disclose an intention of testator to exclude the ordinary rule-of court touching interest on legacies. That is specifically determined in Warwick v. Ely, supra. For like reasons the two items, when considered together, cannot be regarded as a clear manifestation of intent of testator to overthrow the court rule touching interest on vested legacies. To give that force to the provisions would have entitled the legatees to interest before the expiration of the year from testator’s death had the assets been sold prior to that time. The language “to become due and paid out of” the proceeds of sale of the assets, as used in the first item of the will, appears to me to impart no specific purpose of testator further than that the legacies shall be made a charge upon and paid out of the proceeds of sale of the assets; when so understood, and considered in connection with the jrrovisions of the sixth item of the will, the principles defined in Wood v. Penoyre, supra, and Warwick v. Ely, supra, impel the conclusion that the legacies here in question draw interest from the expiration of a year after testator’s decease.

When all the provisions of this will are considered, additional force appears to be given to the views already stated. The entire estate of testator is given to his widow, subject alone to the charge of twenty-eight general legacies, ranging in amounts from $25 to $250. The widow is made sole executrix and is given five years to convert the assets into money should she deem that period for the best interests of the estate. In view of that broad discretion of duty imposed upon the executrix in a matter involving her individual interests, it appears peculiarly appropriate to seek a clear and unmistakable manifestation of intent of testator to deny, interest on the legacies until the last asset should be converted into cash, in the absence of any specific provision of the will to that effect.

I will advise a decree affirming the decree of the orphans court.