author: Fielder, V. C.

text:
    Francis Allison Noice, complainant, v. Harry J. Schnell et al., executors, &c., et al., defendants.
    [Decided July 9th, 1926.]
    1. A testator, after stating his desire and intention to be to please Almighty God, benefit Ms fellow-man and develop the Palisades along t)he Hudson river, made a bequest in perpetutiy to trustees, to maintain and develop a section of the Palisades in accordance with his known wishes. Held, that the bequest is invalid because indefinite, and the will fails to disclose that a public charity was intended.
    2. Parol evidence to show for whom, or the object to which the gift was intended to apply, is inadmissible. The will itself must disclose his wishes.
    3. A gift not strictly Charitable, or partly for purposes charitable and partly for purposes not strictly charitable, if made in perpetuity, is void.
    On bill for construction of will.

      Mr. William J. Morrison (Mr. Henry M. Brigham, of the New York bar), for the complainant.

      Mr. William M. Seufert and Mr. Josiah Stryker (Mr. Victor A. Whitlock, of the New York bar), for Harry J. Schnell et al., executors and trustees.

      Mr. Edward L. Katzenbach, attorney-general, for the defendant pro se.

      Mr. John J. Treacy and Mr. Robert H. McCarter (Mr. Graham Sumner and Mr, Edward L. Robertson, of the New York bar), for the defendants Caroline A. Allison et al.
   Fielder, V. C.

William 0. Allison died December 18th, 1924, leaving a will dated July 11th, 1924, admitted to probate in the prexogative court. The will is as follows, its pertinent paragraphs being quoted in full:

“I. It is my desire and intention to dispose by gift of a large paid; of my remaining estate for the purpose of pleasing Almighty G"od, benefiting my fellow-man and as far as possible developing that section of the Palisades along the Hudson, located in the borough, of Englewood Cliffs and vicinity.
“II. I nominate, constitute and appoint Harry J. Schnell and Prank V. Baldwin and the survivor of them, to be the executors of this my last will and testament and the trustees of the trusts hereinafter created.”

Paragraphs 3 to 9, inclusive, provide for the payment of debts, for bequests to five persons amounting to a total of $38,750, and for an annuity of $35 per month, all friends and employes. Paragraph 9 states that no provision is made for his wife, children or grandchildren, because he has made other adequate provision for them.

“XI. All the rest, residue and remainder of my property, real and personal, whatsoever and wheresoever situate, not hereinbefore specifically bequeathed, I give and devise and bequeath unto my said trustees, in trust nevertheless, to maintain and develop in accordance with my known wishes, the Palisades along the Hudson, in the borough of Englewo'od Cliffs and vicinity. I am now formulating more definitely, plans for the development and maintenance of said Palisades, and to that end have requested two prominent residents of the city of Englewood to submit to me a plan for such development and maintenance. If such plan is submitted and receives my approval, then I direct my trustees to use this trust fund for the purpose of carrying out such plan. If, however, such plan does not receive my approval, then I order and direct my said trustees to use this trust fund for the development and maintenance of said Palisades section in accordance with my wishes as expressed to them.”

The twelfth and final paragraph gives the executors and trustees power to sell real property.

The disposition of the testator’s residuary estate is attacked by his widow and children (whom I shall hereafter designate as complainants) as invalid on the ground that the purpose or terms of the trust is not disclosed by the will, and that said trust is not charitable and is in violation of the rule against perpetuities.

' Evidence was given on behalf of the trustees to show that the expressions used in the will’ was not intended to confine or limit the trustees to any plan or method for the maintenance and development of the Palisades which the testator .might have expressed to them, and to show that the testator’s intention was to require his trustees to develop the Palisades for the benefit of the public, in furtherance of wishes which he had expressed generally, and which he also expressed in •the first paragraph of his will. Such evidence was received over objection from the complainants and subject to their motion to strike out. I am now convinced it was inadmissible and cannot be considered.

The gift in question to be valid as not opposed to the rule against perpetuities must be shown to be for a charitable purpose only, which purpose must be found within the will itself from the language therein 'employed by the testator. Extrinsic evidence of the circumstances, situation and surroundings of the testator may be considered for the purpose of placing the court in the situation of the testator, and thus enable the court to understand the meaning of doubtful or 'ambiguous expressions used by him, but no proof can be considered to supply an omitted description or designation of the person to whom or object to which the testamentary gift is to apply. The determination of whether the gift is for a charitable purpose or object depends upon the intention of the testator if it can be found in the will, and if it cannot be found there, the deficiency cannot be supplied by the testimony of persons who attempt to give their recollection, understanding or interpretation of what the testator said to them. Griscom v. Evens, 40 N. J. Law 402; affirmed, 42 N. J. Law 579; Farnum v. Pennsylvania Co., 87 N. J. Eq. 108; affirmed, 87 N. J. Eq. 652.

Admissible evidence was given which shows that the testator’s estate, above the amount required to pay the legacies, exceeds $3,000,000, and includes all the stock of a land company which holds title to some twenty-six separate and unconnected tracts of land along and below the Palisades in an area extending along the west side of the Hudson river, approximately six miles.

If the testator had some idea for preserving and developing the Palisades for the benefit of the public, or believed that he could in some way benefit the public through the use of his residuary estate in connection with such preservation and development, he certainly was not clear in his own mind how he could put his idea into practical effect.

In the eleventh paragraph of his will he said, first, that his gift was to his trustees to develop the Palisades in accordance with his known wishes, and then he went on to say that his wishes (or ideas) had not yet matured into definite plans, and that he was seeking the advice of others, and if their advice appealed favorably to him he would make known to his trustees the plans he would formulate upon such advice, and that the trustees should carry out such plans. If, however, no suggested plan met with his approval, then his trustees should use the trust fund for the development and maintenance of the Palisades in accordance with his wishes as expressed to “them.” As he had not settled on a plan at the time he executed his will and was then casting about for one, his statement as to his wishes must have-had reference to wishes he intended to express to his trustees at a time subsequent to the execution of his will. But if not, and if his trustees were aware of his wishes at or prior to the execution of his will, it was his plan, nebulous .though it might be, and not any plan of his trustees, which he desired carried out. The trustees were not to originate plans; their function was limited to the execution of plans communicated to them before or after the execution of the will, or if he had communicated no plan to them, then in accordance with what they might know of his wishes. His plan, whether communicated to his trustees or not, was to form part of the purpose or object he had in mind. A plan was intended to be an essential part of the purpose of his gift.

■ In the first part of the eleventh paragraph the testator stated that his trustees are to maintain and develop the Palisades “in accordance with my known wishes,” which may mean in accordance with his wishes as expressed to persons other than his trustees. He had given some indication of his wishes to two prominent residents of Englewood, and when, and at the end of the paragraph, he said if these men failed to submit a plan which received his approval, his trustees should develop and maintain the Palisades “in accordance with my wishes as expressed to them,” the word “them” may refer to the two Englewood men or to his trustees. In any event, he intended that the trust fund should be used for the development and maintenance of the Palisades according to a special plan or in a specific manner which he had expressed, or proposed to express, to some person or persons and not generally, along any lines which his- trustees might deem proper, but since he failed to even indicate in his will what his plans or wishes were, it is impossble for this court to say whether his purpose was charitable, or- partly charitable and partly not, and recourse cannot be had to statements which the testator may have made to others to supply or define his intention, because such statements are not part of his will and cannot be made so in the face of the statute, which provides the formalities which must be observed in the execution of a valid will.

But, say the trustees, the first and eleventh paragraphs of the will must be read together, and, being so read, a gift to charity is disclosed. The definition of a charity, as approved by our court of errors and appeals in Mackenzie v. Trustees, &c., 67 N. J. Eq. 652, is as follows:

“A charity, in its legal sense, may be more fully defined as a gift to be applied, consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their minds and hearts under the influence of education or religion by relieving their bodies from disease, suffering or constraint; by assisting them to establish themselves in life; or by erecting or maintaining public buildings or works or otherwise lessening the burdens of government. It is immaterial whether the purpose is called charitable in the gift itself if it be so described as to show that it- is charitable in its nature.”

Nothing in the language of paragraph 11, by which the gift is made, describes a gift charitable in its nature. Paragraph 1 is in the nature of a preamble in which the testator endeavored to set forth the desire and intention which moved him in disposing of his estate in the manner afterward specified. He stated his motives as threefold' — first, to please Almighty God; second, to benefit his fellow-man, and third, to assist in developing a portion of the Palisades.' The first two of these motives may have reference to his bequests to six friends and employes and may have no reference whatever to the Palisades, but all three, or, perhaps, only the first and third, or the third alone, may have been the moving cause for giving his residuary estate to trustees. The desire to please God and the desire to develop the Palisades, taken separately or together, do not disclose an intention to make a gift for charitable purposes. Eor instance, the testator may have believed that his God created the Palisades, and that it would please Him if he could, in some measure, protect their pristine grandeur from the hand of the vandal by developing and restricting their use to residential purposes only. If his desire to benefit his fellow-man and his desire to develop and maintain the Palisades should be read together, do they disclose a gift necessarily charitable? It will be remembered that the eleventh paragraph is silent as to the purpose or for whose benefit he desired the Palisades developed and maintained, and the first paragraph does not say that it was his desire to benefit his fellow-man by the development and maintenance of the Palisades, but, if such was his desire, it may have been his opinion that his fellowman would be benefited by a plan or purpose which our courts would not consider charitable. Goodell v. Union Association, 29 N. J. Eq. 32; Livesey v. Jones, 55 N. J. Eq. 204; affirmed, 56 N. J. Eq. 453; Hyde’s Executors v. Hyde, 64 N. J. Eq. 6; Hegemon’s Executors v. Roome, 70 N. J. Eq. 562, and Thomas v. Scheible, 91 N. J. Eq. 451, are instances where testators have attempted to benefit their fellow-men by gifts which the courts have declared invalid because made in perpetuity for purposes not strictly charitable.

It is settled in this state that if the trust sought to be established can be used for purposes not strictly charitable, or partly for purposes charitable and party for purposes not strictly charitable, the trust is invalid. Norris v. Thomson, 19 N. J. Eq. 307; affirmed, 20 N. J. Eq. 489; Van Syckel v. Johnson, 80 N. J. Eq. 117, and cases last cited. The difficulty here is — first, that the will is indefinite and does not provide generally for the development and maintenance of the Palisades for the benefit of the testator’s fellow-man, and leave it to the trustees to devise the details for carrying out a general plan of public benefit, and second, that it does provide for such development and maintenance within certain limitations, namely, according to a plan which the testator had in mind, concerning which he failed to disclose anything from which it can be determined that such plan was, or is, wholly charitable in its nature, and, therefore, the gift must fail. Norcross v. Murphy, 44 N. J. Eq. 522; Smith v. Smith, 54 N. J. Eq. 1; affirmed, 55 N. J. Eq. 821.

The result of my conclusions is that the testator’s widow and children are entitled to his residuary estate. The proofs show that they have entered into a written agreement to divide said estate in equal shares among themselves, and the trustees will therefore be decreed to distribute said residue among them in accordance with their agreement.


source: Caselaw Access Project

author: Griffin, V. C.

license: Public Domain

text:
    John Kammerer, complainant, v. Charles Schuten, defendant.
    [Decided April 8th, 1926.]
    On a bill for rescission of a contract alleging as a reason the fact that the amount of business done by the vendor for the preceding year was fraudulently misrepresented, where the complainant, with full knowledge of the facts, continued the business for several months hoping to obtain a reduction in the purchase price — Held, complainant elected to affirm the contract, and the bill should be dismissed.

      On bill, &C.

      Mr. Samuel S. Stern and Mr. Harry Lane, for the complainant.

      Mr. Samuel Harber and Mr. J. Emil Walscheid, for the defendant.
   Griffin, V. C.

The bill in this cause is filed to rescind a sale made by the defendant to the complainant.

The defendant was the owner of and conducting a confectionery and ice cream store located at 122 Fourth street, in the town of Union, Few Jersey. He had been engaged in the business for some years, and, after negotiating for about five days, made a bill of sale of the business to the complainant on April 9th, 1923.

Prior to the execution and delivery of the bill of sale, and to induce the complainant to purchase, the defendant represented that the business done by him in the preceding year amounted to $55,047, and the complainant, relying upon that representation, purchased the store for $25,000, to be paid as follows: $1,000 on the execution of the agreement; '$7,-500 on the delivery of the bill of sale; the assumption.of a chattel mortgage then on the premises upon which there was due $4,600, payable in monthly installments, and by the delivery to the defendant of a chattel mortgage for $11,900, with interest at six per cent., payable in monthly installments of $400 each, evidenced by promissory notes, the. first of said notes to become due and payable June 1st,. 1924.

In order to convince the complainant that the business done by him aggregated $55,047, the defendant produced a little black book (Exhibit G-S), .purporting to contain, by daily entries, the receipts of the business from January 1st, 1922, to December 31st, 1922, which receipts totaled $55,047. In making up this book, it is admitted that the dates were written in advance of the daily entries of the receipts. -The handwriting expert produced testified that these receipts were not entered daily, but that great numbers of them were, entered at the same time; that the whole book was not written at one sitting, but at several times; and he analyzes the entries in the usual expert style to indicate that the book was not a true record of the business, but was manufactured. I regard it as unnecessary to go into the details of his testimony, as he has not only convinced me of the truth of his statements, but an inspection of the entries themselves indicates that they are not daily entries. The defendant says that the entries in this book were made every night around twelve o’clock, after the close of business; that his wife (who died before the hearing of the cause) took the money from the cash register — he standing by — and counted it, and made the entry for the day then and there. There is testimony of two discharged employes who say that this is not so; that they were at the store with the defendant and his wife until it closed, and left the store with the defendant, and that the cash was not taken from the cash register and an entry made in the books. These witnesses were rather hostile, which would rather weaken the force of their testimony; but, in view of the way this book was made up, I think their stories are credible.

A peculiar circumstance about these entries is that they run in dollars, without cents. This seems to me, at first blush, rather a strong circumstance against the verity of the book, because it is highly improbable that there was not a surplus of cents over the dollars in the cash register. There was offered in evidence a red book, kept while Orem owned the store, and from whom the defendant purchased about two years before (defendant being, at the time of its purchase, interested with Orem as a partner in the business). This red book kept by Orem, towards the end, also showed, excepting in a few instances, the receipts in dollars only, with no cents. The conclusion I have reached is that, for some purpose unexplained, the defendant allowed small amounts of money, perhaps in dollars and cents, to remain in the cash register for business for the next day.

A. .circumstance, however, which tends to support the theory, that the book was not true reflection of the daily receipts is this: It seems that in a business oí this character, where ice cream is manufactured and sold, with candies and soda water, there is a rule, which seems reasonably certain, that the sales of ice cream, soda water, candies, &c., average about four times the cost of the milk and cream and condensed milk used in the manufacture of the ice cream. Applying this rule (which has not been denied), I find that Schuten bought, in 1922, milk, cream and condensed milk which cost $9,764.49, which, multiplied by four, produces $39,057.96. Taking the amount of milk purchased by Schuten in 1923 down to the time he sold to Kammerer in' April, and adding to it the amount of milk, cream and condensed milk purchased by Kammerer for the balance of the-year, the purchase price of the milk, cream and condensed milk for that year amounts to $6,648.75, which, multiplied by four, amounts to $26,595, and the actual business done that year by both Schuten and Kammerer amounted to $27,256.58, or $661.68 more than the estimated business for the year based on the rule.

There is another rule which they give for the calculation of the annual receipts, viz., that the income from the sale of ice cream is from two and a half to three times the cost of the milk, cream and condensed milk. Multiplying the $9,764 by two and one-half, the gross income from ice cream would be $23,311.22. Defendant says that the candy sales produce about one-third of the amount received from the sale of ice cream (which, in this instance, would be $7,770), and that the receipts from the sale of soda water amount to $7,000 a year. Adding these figures, it gives a total of $38,084 for the year. And if we treat the income from ice cream as three times the cost of the milk product, it will amount to $29,293; and adding the one-third of the income from cream on account of the candy sales ($9,754) and $7,000 for the estimated return from soda water sales, the total income would be $46,057 plus, or about $9,000 below the total given in the black book. The above calculation, taking the view most favorable to the defendant, tends to establish the fraudulent character of the black book.

To justify the falling off of the sales in 1923, some of the experts say (and it is not denied) that the summer of 1923 was the coldest in fifty years, and that business fell off from forty to fifty per cent. If this were true, it would account for the business here falling off considerably, but not to the extent of forty or fifty per cent, for the whole year.

The conclusion I have reached is that the business of the defendant for 1922 amounted to a sum between $39,000 and $46,000, and the falling off of the complainant’s trade in 1923 to about $27,000 was due to the cold weather, augumented, possibly, by the fact that the complainant lost trade by not conducting his business in a suitable manner, as charged.

But the defendant contends that, assuming that this fraudulent misrepresentation has been proven, “the complainant, with full knowledge of the situation, made an election of the remedies afforded to him, and that he had elected to affirm the contract to keep the property, and, therefore, the bill for rescission filed in January, 1924, cannot be sustained,” citing Dennis v. Jones, 44 N. J. Eq. 513; Clampitt et al. v. Doyle, 73 N. J. Eq. 678, 683, 684; Faulkner v. Wassmer, 77 N. J. Eq. 537, 543, 544, Ginsberg v. Wollers, 94 N. J. Eq. 532; 121 Atl. Rep. 730, 733.

The facts are as follows: Peters, the agent who negotiated the sale, being called as a witness for complainant, says that the complainant expressed dissatisfaction with his purchase two or three weeks thereafter, saying that he did not think the store would ever bring the money; that two dr three months later he told the witness that the defendant “had defrauded him;” that “he paid $10,000 too much;” that “the store wasn’t worth $15,000,” and he also made the same statements during the summer time. Complainant says, after the expiration of a month, he made up his mind that the .figures in the book were wrong, and that it was a fraud. Two or three, weeks'after the purchase he consulted Mr. Schneider, a member' of the bar. He: says he told Schneider he had been defrauded, and he says that he was advised that he' give -back the property, or offer it back and sue for damages, “but it would cost money.” He was also advised by Schneider to “give the place a fair chance; that they didn’t have summer weather,” and that he told him to see “what the next month was going to be.” He says the good season is over in October, and that during all this time the business did not pick up, and he was satisfied the black book was wrong.

Mr. Harber, a solicitor of this court, says that on December 11th, 1923, the complainant, with his counsel, Mr. Schneider, called on him — he having theretofore represented the defendant — and that Mr. Schneider had the black book and discussed the matter of misrepresentations. Finally, the complainant said he wanted some settlement whereby the defendant should reduce purchase price, reduce the mortgage, and also the monthly payments. This is denied by the complainant. But the force of his denial is greatly weakened because he has not produced all the evidence of which the nature of the case is susceptible. Mr. Schneider had been his counsel for a period beginning two or three weeks after he purchased the property down to, at least, December 11th, 1923, when they, together, visited Mr. HarbeFs office. He, if called, could have testified to what transpired at the conference with Harber, and also as to other things to which the complainant testified; but he was not called.

In addition to the foregoing facts, on May 8th, 1923, at a time when he had reason to believe that the black book was a fraud, the complainant contracted to put in an ice cream machine plant at a cost of $6,000. He says this was necessary, as the old plant was rundown, and he wanted to be ready for the good season when it arrived.

(Referring to the black book, it shows, in addition to the year’s receipts for' 1922, aggregating $55,047, the daily receipts for January, February and March and the first four days of April, 1923. From a comparison of these items with-the income for the same months in 1922, it appears that the receipts for 1923 were less than those for 1922, in the following amounts: January, 1923, about $1,000; February, 1923-, about $1,500; March, 1923, about $1,800. Erom April 1st until December 1st, 1023, the receipts were less than similar months of the preceding year in the following sums: April (including receipts by both complainant and defendant), $2,700; May, $3,500; June, $3,600; July, $2,600; August, $2,800; September, $3,100; October, $2,200; November, $1,300; December, $1,600.)

As above stated, the complainant assumed the payment of the mortgage to Steinbacher for $4,600, and paid the monthly installments on this mortgage down to January 1st, 1924. Nothing was paid on account of his mortgage to the defendant, because the first note secured thereby did not fall due until June 1st, 1924. During all this time I am satisfied that the complainant believed the black book to be a fraud, and his purpose was to get an abatement of the purchase price. This is testified to by Mr. Peters (who was called by the complainant), who said that, shortly after the purchase, and during the summer time, the complainant claimed that he was defrauded and had paid $10,000 too much, and that the place was not worth more than $15,000; and the testimony of Mr. Haber, that the complainant wanted to meet Schuten to talk over the reduction in the price of the business; and his own testimony, generally throughout, that he wanted to meet Schuten to discuss the matter with him, and made several efforts to do it.

On the foregoing facts I have reached the conclusion that the complainant, with full knowledge of the facts, at least, as early as July or August, 1923, elected to retain the property and seek to obtain the return of a part of the purchase price or damages. He had been employed on the premises by Steinbacher years before, knew it was a good site for business, and, in fact, the other witnesses say it is an excellent site.

This brings the case within the rule laid down in Dennis v. Jones, Clampitt et al. v. Doyle, Faulkner v. Wassmer and Ginsberg v. Wolters, supra.

I will advise a decree dismissing the bill.


text:
    Mary Agnes Ryan et al., complainants, v. John K. Daly et al., defendants.
    [Submitted March 30th, 1926.
    Decided June 14th, 1926.]
    1. The intention of the donor of a power is the great principal that governs the construction of powers, and in furtherance of the object in view the courts will vary the form of executing the power, and, as the case may require, either enlarge a limited to a general power, or cut down a general power to a particular purpose.
    2. D. conveyed lands to G., who executed a declaration of trust, declaring that the premises were conveyed to him and that he now holds and will continue to hold the same in trust for various purposes, the pertinent one being that he would apply the income to the support and maintenance of Bridget, a sister of D., during her natural life, and; upon the death of Bridget, to such child or children of B., a sister of D., as D. shall, by an instrument under his hand or by his last will, direct; and if he die without leaving such instrument or last will, then to such child or children of B. as the said G. shall direct; and if he die without leaving such direction, then to all- the children of the said B. then surviving. Bridget died in 1904; G. died in 1918 without exercising the power. D. is living and has not exercised the power; on the contrary, he attempted to make settlement with the persons to whom he was to appoint, for his own benefit, bought in the property at a tax sale in order to defeat the power, and his counter-claim denies the validity of the trust for complainants, indicating a state of mind that he not only did not intend to exercise the power but to defeat it — Meld,, as applied to D., that this power was created for the benefit of Bridget during her life, and, after her death, for the benefit of such children of B. as D. should appoint, and that the power of appointment should be exercised within a reasonable time after the death of Bridget; and as more than a reasonable time has elapsed (twenty-one years), and especially as the donee of the power, apparently, does not intend to exercise it, and all of the children of B. have requested a conveyance to them, a decree should be entered directing the eldest son of G. to convey to the children of B.

      Mr. Doherty, for tlie complainants.

      Mr. Burke, Mr. John H. Sheridan and Mr. John Milton (Mr. John J. Mulvaney, of counsel), for the defendants John K. Daly et al.

      Mr. Charles A. Booney, for the defendants Mary E. Gallagher, executrix, and Thomas Gallagher.
   Griffin, V. C.

The bill in this cause is filed for the appointment of a new trustee to execute and discharge the trusts created by a declaration of trust hereinafter referred to, and to ascertain and determine the true intent, meaning and construction of the said declaration of trust, and to determine whether the original power of appointment given to John K. Daly is extinguished or still survives.

Bridget Agnes Daly died May 1st, 1894, leaving her surviving as her only heirs-at-law her children, Mary Elizabeth Boylan, J ohn K. Daly and Bridget Agnes Daly, and Thomas J. Daly, a son of James Daly, a deceased son. Bridget, the mother died seized of the tract of land in Jersey City, which is the subject-matter of the declaration of trust, leaving a last will and testament, in and by which she devised and bequeathed said tract of land to John K. Daly, and bequeathed to her insane daughter, Bridget Agnes, $1,400, and appointed Dennis Gallagher her guardian. John K. Daly, by his deed, dated October 25th, 1894, and recorded in liber 607 of deeds, page 584, conveyed the said premises to Dennis Gallagher for the consideration of $1,800; and Dennis- Gallagher and his wife did, on the same dajq by a declaration of trust, recorded in liber 607 of deeds, page 586, declare the trusts upon which the property was conveyed to him. The above consideration of $.1,800 consisted of $1,300 which Dennis loaned as guardian of Bridget Agnes Daly, and $500 of his own.

The declaration of trust, after reciting the deed'from John K. Daly to Gallagher for the premises in question, in consideration of one dollar paid by the said John K., did admit and declare that the said premises were conveyed to him, and that he now holds and will continue to hold the same in trust only as follows:

“1. To secure the payment of the sum of one thousand three hundred dollars, invested by way of mortgage on said property moneys belonging to Bridget Agnes Daly, which I hold under the terms of the will of her mother, Bridget Daly, deceased, with interest on said sum from this date, at six per cent, per annum, payable semi-annually, the principal to be paid immediately upon the death of the said Bridget Agnes Daly.
“2. To secure the payment of the sum of five hundred dollars to myself, which sum is invested by me, by way of second mortgage on said property, with interest on said sum from this date at six per cent, per annum, payable semi-annually, the principal to be paid immediately upon the death of the said Bridget Agnes Daly.”

The third paragraph provides that the net rents, issues and profits of said property, after paying interest on said two sums of $1,300 and $500, and the taxes, &c., should be applied to the support and maintenance of the said Bridget Agnes Daly during her natural life.

Bridget Agnes, the daughter, died April 1st, 1904. The trust for her as to the net income thereupon fell in, and as she died intestate, the $1,300, with interest, should be paid to her administrator out of the proceeds of the sale of the lands.

The paragraph requiring construction is the fifth of said declaration of trust, which is as follows:

“5. Upon the death of the said Bridget Agnes Daly, to convey said property subject to said two investments, or [if the same shall have been sold] to pay the net proceeds thereof over and above said two investments, or assign the securities by which the same shall then be represented to such child or children of Mary Elizabeth Boylan, sister of the said John K. Daly, as he shall by instrument under his hand direct, or if he make no such declaration and shall die leaving a last will and testament, then to such child, or children of the said Mary Elizabeth Boylan as he shall in said last will and testament have directed, and in case he shall die without such direction or without leaving a last will and testament, then to such child or children of the said Mary Elizabeth Boylan as I the said Dennis Gallagher shall direct, and in case I shall die without leaving such direction,, then to all the children of the said Mary Elizabeth Boylan then surviving.”

Under this clause the children of Mrs. Boylan took a contingent remainder during the life of Bridget Agnes, or until the death of Mr. Gallagher, if he died after the death of John K. Daly, in the lifetime of Bridget Agnes, with a vested remainder in those who were living at the date of her death, or at the date of the death of Mr. Gallagher as aforesaid, subject to one or more of said children being eliminated by the execution of the power. Coleman v. Seymour, 1 Ves. Sr. 209; 27 Full Eng. Reprint 987.

The power of appointment given to Gallagher might be exercised by an instrument in writing or by his will. Cueman v. Broadnax, 37 N. J. Law 508. Therefore, what is said herein with reference to the power of appointment by John K. Daly applies with equal force to the right to appoint by Gallagher.

Dennis Gallagher died October 14th, 1918, leaving a last will and testament, in which he did not attempt to exercise the power; and the parties have agreed that, as his estate has given up any claim to the $500 and interest, no accounting by his estate will be required. The parties interested are all of full age.

Under this fifth paragraph John K. Daly was given a power to appoint, either bjr an instrument under his hand or by his last will and testament, to such child or children of Mary Elizabeth Boylan as he might select, and if he failed to make such appointment then the power of appointment is given to the said Dennis Gallagher; and in case Dennis died without making the appointment, then to all of the children of said Mary Elizabeth Boylan then surviving. It is urged, on one side, that as Dennis Gallagher died without exercising the power to appoint, the power given to John K. Daly is at an end. I cannot agree with counsel in this construction. The primary power of appointment is given to John K. Daly, and the power is given to Dennis only in the event of John K. dying without appointing.

It is urged, however, by John K. Daly, that he did not know of the making of this declaration of trust until about a year after it was made, which was about the year 1895, more than thirty-one years ago, and about twenty-three years before the death of Dennis Gallagher. During all that time he took no action; and now, when death has sealed the lips of Gallagher, who was most interested in sustaining the legality of the declaration of trust, it is too late for him to assert this claim. He is guilty of gross laches. Lutjen v. Lutjen, 64 N. J. Eq. 773; Dunham v. Adams, 82 N. J. Eq. 265, and cases cited (at p. 270).

In addition to this, the declaration of trust and the deed were both executed at the' same time as part of the same transaction, and it is quite evident that the declaration of trust was drawn to carry out the desire of John K. Daly, for, otherwise, why should a deed be given instead of a mortgage? In the absence of the declaration of trust, upon the payment of the $1,800 the title to the property would revest in John K. Daly.

As the trust was in Dennis Gallagher, since deceased, upon his death it devolved upon his eldest son as trustee.

The question presented is, What is the true construction of the declaration of trust?

Chancellor Kent, in 4 Kent Com. 845, says: “The intention of the donor of the power is the great principle that governs in the construction of powers, and in furtherance of the object inview the courts will vary the form of executing the power, and, as the case may require, either enlarge a limited to a general power, or cut down a general power to a particular purpose.” To the same effect is Wilson v. Troup, 2 Cow. 195 (200). See, also, Bristow v. Warde, 2 Ves. Jr. 336; 21 Eng. Rul. Cas. 356, note (at p. 378); Jackson v. Veeder, 11 Johns. 169.

A question arises whether the donee of the power should exercise the appointment within a reasonable time and put the appointees in possession, or thereafter the right to appoint would be at an end? My conclusion is that John K. Daly should have exercised the power of appointment within a reasonable time after the death of Bridget Agnes Daly. The declaration of trust indicates that the objects of the donor’s bounty were Bridget Agnes Daly, his insane sister, and, after her death, the children of Mary Elizabeth Boylan. Upon the death of Bridget Agnes Daly the declaration of trust deals with two situations — one, where the property had not been sold, and the other where it had been; and reading this declaration, omitting some of its verbiage, it reads as follows: (1) Upon the death of Bridget Agnes Daly, to convey .the said property to such child or children of Mary Elizabeth Boylan, sister of the said John K. Daly, as he shall by an instrument under his hand, or in his last will, direct, &c.; (2) if the property be-sold, to pay the net proceeds thereof to such children of Mary Elizabeth Boylan as he shall appoint, &c., and (3) to assign the securities by which the same (meaning, thereby the net proceeds) shall then be represented, to such child or children, &e. Here it is perfectly plain that it was the donor’s intention that immediately upon the death of Bridget Agnes Daly the children of Mary Elizabeth Boylan appointed should enter into the possession and enjoyment of the property. It was not the intention of the donor that the donee of the power should withhold his appointment for years and allow the title to remain in suspense by reason of the non-execution of the power. It would be rather absiird to say that the donor expected, as in this case, that the donee should omit to exercise his power of appointment for twenty-one years. He not only, by reasonably plain language, specifies the death of Bridget Agnes Daly as the time when the appointment should be made, 'but he directs the payment of the net proceeds, if sold (meaning before the death of Bridget Agnes Daly), and, if the net proceeds are invested, to assign the securities in which the same shall then he represented (that, is, the investments as they existed at the time of the death of Bridget Agnes Daly); all of which clearly indicates that his purpose -was that the power of appointment should be exercised immediately after the death of Bridget Agnes Daly by an instrument under his hand, if he survived Bridget, or by will if he predeceased her; for under no other condition could this will operate within a reasonable time, as his will would not speak until the time of his death, which might happen a half century after the death of Bridget.

My present view is that, after this long lapse of time, coupled with the fact that John K. Daly has been endeavoring to make a settlement with the persons to whom he was to appoint, for his own benefit, and lids buying the property in at a tax sale in order to defeat the power, and his counterclaim denying the validity of the trusts for complainants, rather indicate a state of mind where he not only did not intend to exercise the power, but to defeat it. In Pom. Bq. Jur. (8d ed.) 687 § Professor Pomeroy said:

“Where a power in trust is given to appoint among the members of a designated class, as among ‘the children’ of the donee, ’and the like, the donee upon whom the power is conferred can appoint in favor of any one of the class, and a coiirt of equity will not interfere with his discretion. Where the donee, however, fails to make any appointment, and, of course, makes no selection of a particular bene^ ficiary out of the class, a court of equity will carry out the power, under the principle of equality, by dividing the fund subject to the power in equal shares among all the persons composing the designated class.”

I have therefore reached the conclusion that the eldest son of' Dennis Gallagher should be decreed to convey to all the children of Mary Elizabeth Boylan. I have reached this conclusion more readily because all of the children of Mrs. Boylan have asked for a conveyance of them. Biggs v. Peacock, L. R. Ch. Div. 284. A decree will be advised in accordance with the foregoing views.


author: Buchanan, V. C.

text:
    Hugh K. Gaston et al., executors, &c., complainants, v. Benjamin D. Ford, executor, et al., defendants.
    [Decided May 18th, 1926.]
    1. Where there is a testamentary gift to A, in language uncertain and indefinite as to the nature or extent of the interest given, coupled with an unlimited power of absolute disposal, the will is to be construed to pass a fee-simple estate or absolute ownership, and a subsequent gift over is invalid.
    2. The fact that the power of disposal is not to be exercised by will, is not such a limitation as affects the foregoing rule.
    3. Where there is a testamentary gift to a class, the persons who take are to be ascertained as of the date of testator’s death, unless the will expressly, or by implication, otherwise directs.
    Oa final hearing.

      Mr. Hugh K. Gaston, for the complainants.

      Mr. Charles H. Weelans, for the defendants Carman and Thomas Eord.

      Mr. George W. Litierst, for the defendant Benjamin Eord, executor.

      Mr. John F. Reger and Mr. Voorhees Kline, for the defendant St. Joseph Church.

      Mr. Ryman Herr, administrator, pro se.

   Buchanan, V. C.

The questions raised in this cause involve the interpretation of the wills of George Y. Ford and Sarah C. Adair, and the rights of the several parties thereunder.

The will of George Y. Eord (besides directing payment of debts and appointing his wife, Sarah, and his brother, Benjamin, as executors) provides as follows:

“Second. I give and devise unto my beloved wife, Sarab C., in lieu of right of dower, the house and lot where I now live, fronting on Somerset street, and the house and lot owned by me and the barn lot, which have a front on Thompson street, all in the village of Raritan. And I give and bequeath unto my said wife all my household goods and chattels and the sum of $7,000, to be paid to her out of my estate, the above devise and bequest to be at her own disposal while she lives, and at the decease of my said wife, whatever shall remain in her hands undisposed of, it is my will and I do order the same to be divided equally between my brothers and sisters that may be living at the decease of my said wife, excepting therefrom whatever property my said wife may have brought to me or may inherit in her own right.
“Third. I order all the rest and residue of my real and personal estate to be sold as soon as can conveniently be done after my decease toy my executors hereinafter named, and whatever may remain not heretofore disposed of in this my last will I give and bequeath unto my beloved wife, Sarah, and my brother, Benjamin Y. Ford, to be equally divided 'between them, share and share alike, my wife’s portion to be subject to the provision made by me in behalf of my brothers and sisters who may be living at the decease of my said wife, if any part of the same shall remain in her hands undisposed of at the decease of my wife, my will is that the said amount shall be equally divided between them.”

The first question is as to the nature and extent of the estate or interest which the wife, Sarah, took under this will; was it a fee in the realty and an absolute ownership of the personalty, or was it a life estate in both, with an added power of disposal?

That there are certain fixed and established legal rules or principles' governing the'interpretation and effect to be accorded to testamentary dispositions of this kind, is not denied; the dispute arises as to the application of the rules in the instant case. The rules are the same whether the gifts are of realty or personalty. Pratt v. Douglas, 38 N. J. Eq. 516; Hyde v. Hyde, 88 N. J. Eq. 358.

Where there is a devise of property to A, in terms indicating clearly that a fee-simple estate is intended to be given, a fee passes; and a subsequent provision expressing a gift to B, at A’s death, of the same property — either the whole thereof or "whatever remains” — is invalid and passes nothing. Annin v. Van Doren, 14 N. J. Eq. 135; McClellan v. Larcher, 46 N. J. Eq. 17; Bennett v. Association, &c., 79 N. J. Eq. 76; see, also, Wilson v. Wilson, 46 N. J. Eq. 321. (To this rule there is a single exception — illogical but definitely established. Where there is a devise to A, in terms clearly indicating a fee-simple estate, followed by a subsequent clause giving to A the power of testamentary disposition, and a gift over in the event of the failure of A to exercise that power, in that case the original devise is deemed to pass a life estate only, with power of testamentary disposition, and if that power be not exercised, the gift over is deemed valid. Kent v. Armstrong, 6 N. J. Eq. 637; Cantine v. Brown, 46 N. J. Law 599; Kellers v. Kellers, 79 N. J. Eq. 412; S. C., on appeal, 80 N. J. Eq. 441. Eor an explanation of this arbitrary exception, see the chancery opinion in the Kellers Case.)

Where the first devise to A is in terms indicating clearly that only a life estate is intended to be given, only a life estate passes, notwithstanding there be also given to A a power of absolute disposal of the property, even if such power be without any limit or restriction as to the time or manner of its execution, A does not take a fee, but a life estate plus the power of disposal, and a subsequent gift to B, at A’s death, of such part of the property as remains undisposed of, is valid and effective. Robeson v. Shotwell, 55 N. J. Eq. 322; Pratt v. Douglas, supra; Wooster v. Cooper, 53 N. J. Eq. 682; Weaver v. Patterson, 92 N. J. Eq. 170; Duncan v. Murphy, 92 N. J. Eq. 682. See, also, Tuerk v. Schueler, 71 N. J. Law 331.

But a devise may be in mere general terms, without words expressing either fee or life estate. In such case the devise was, by implication of law, deemed to pass a life estate only. Naundorf v. Schumann, 41 N. J. Eq. 14. By the statute of 1784 (Wills act, 4 Comp. Stat. p. 5878 § 86), this rule was modified to provide that in cases where the will contains no subsequent gift of the same property, the devise is to be deemed in fee. Hance v. West, 32 N. J. Law 233; Roden fels v. Schumann, 45 N. J. Eq. 383 (at p. 387); Downey v. Borden, 36 N. J. Law 460 (at p. 469). But even if the will does contain a subsequent gift, the original rule does not always apply.

Where there is a devise to A in general terms only, expressing neither fee nor life estate, and a subsequent devise of the same property (in whole or in part) to B at A’s death, if there is also given to A an unlimited and unrestricted power of absolute disposal, the devise to A is construed to pass a fee, and the gift over is invalid. Downey v. Borden, supra; Tuerk v. Schueler, supra; Wills v. Wills, 72 N. J. Eq. 782; affirmed, 73 N. J. Eq. 733; McCloskey v. Thorp, 74 N. J. Eq. 413; Hyde v. Hyde, supra; Brohm v. Berner, 95 N. J. Law 85. To the foregoing decisions in the appellate court may be added the following cases in this court: Dutch Church v. Smock, 1 N. J. Eq. 148; Rodenfels v. Schumann, supra; Benz v. Fabian, 54 N. J. Eq. 615; Bunnell v. Beam, 86 N. J. Eq. 101; Huston v. Boyd, 84 N. J. Eq. 108; Henderson v. McGowan, 91 N. J. Eq. 359.

If, however, the additional power of disposal given to A is not of absolute disposal or is limited or restricted as to its exercise, the devise is not construed to pass a fee. Wright v. Wright, 41 N. J. Eq. 382; Hensler v. Senfert, 52 N. J. Eq. 754; and see, also, Wills v. Wills, supra, and cases there cited.

The gift of the additional unlimited power of absolute disposal need not be in express language — it may be construed by implication. There are many adjudicated cases dealing with the question as to what words or expressions are to be deemed to imply a gift of unlimited power of absolute disposal. These will be found collected in Weaver v. Patterson, 92 N. J. Eq. 170, and need not here be repeated.

The language in the case at bar would seem to fall within the class of eases to which the rule in Downey v. Borden, Tuerk v. Schueler, and the other eases cited, supra, applies. Simplifying the language of this will, without affecting its meaning as to the point under discussion, makes this even clearer—

“I devise and 'bequeath my real and personal property to my wife, the above devise and bequest to be at her own disposal while she lives, and at her death, whatever shall remain undisposed of, I give to my brothers and sisters equally.”

If we accord to the words and phrases used by the testator their natural meaning and effect, it seems clear that we have here practically a typical instance of the gift in general terms only, expressing neither fee-simple nor life estate, followed by an unlimited power of absolute disposal, and a gift over of such part as may not be disposed of, and that under the rule of Downey v. Borden, the wife, Sarah, took an absolute ownership in the lands and- personal property referred to. Such will be the determination.

It is argued by the adverse interests that the proper interpretation of the disputed paragraph is as if it were paraphrased thus:

“I devise and bequeath my real and personal property to my wife, while she lives, the above devise and bequest to be at her own disposal, .and at her death whatever shall remain,” &c.

The answer to that argument is, that that is not the way the testator phrased it, and that while it is possible that that is what he meant it is by no means clear, and that as between the two meanings, the one already accorded to it is the more natural under the language and phrasing actually used.

Moreover, even if we should go so far as to say that both of the two interpretations are equally natural and equally possible (which is not the fact), it does not avail the defendants, for the rule of Downey v. Borden applies not merely to those cases where the gift to the first beneficiary is general and indeterminate because the language used simply expresses a gift and stops without defining the nature or extent of the interest intended to be passed. It extends to all cases where the language, whatever it may be, leaves uncertain and indeterminate the nature or extent of the interest intended to be passed — to all eases where it does not appear at least probable that the testator, by his language, intended to pass only a life estate. Dutch Church v. Smock, supra; Downey v. Borden, supra; Benz v. Fabian, supra; Tuerk v. Schueler, supra; McCloskey v. Thorpe, supra; Huston v. Boyd, supra; Hyde v. Hyde, supra, and Boohm v. Berner, supra, are all cases where the rule was applied and where the finding that the first gift was indeterminate rested not upon a mere bald expression of a gift without words to indicate its nature, but upon the uncertainty of the interpretation of the doubtful language used.

Another argument advanced by defendants is that the power of disposal given is not an unlimited or unrestricted power— that the words “to be at her own disposal while she lives” expressly limit her power of disposal by excluding disposal by will, since a will could not operate while she lived.

Assuming that the power of testamentary disposition is not included in the language as used, nevertheless, the power of absolute disposal during life is in itself such an unlimited and unrestricted power of absolute disposal as to come within the rule. This has been decided in a number of cases. In Dutch Church v. Smock, supra, where the gift was to testator's wife, $600, “to be at her disposal during life;” in Benz v. Fabian, supra, where the power was to the wife “to use, occupy or dispose of” the property “during her life” (the last three words not being expressed in the will, but clearly and necessarily implied by the subsequent clause providing for the gift over if the wife “should continue in the use, occupation and ownership of the property until her death”), and again in Hyde v. Hyde, supra, where the power given to the wife was to have “the actual custody, control and disposal during her life.”

This case last cited, indeed, is so nearly on all fours with-the case at bar as in itself to be dispositive of the case at bar.

The gift to the wife in the third paragraph of the will is to be construed in the same way as the gift in the second paragraph. The language is slightly, but not materially, different, and the clause “to be subject to the provision made by me,” &e., clearly refers to the provisions of the preceding paragraph and indicate the intent that the nature, extent and limitations of the gifts are to he the same in the third paragraph as in the second.

The conclusion is that the gifts to Sarah Eord were absolute, and the cqntingent gifts over were invalid.

Sarah Eord married again, and became Sarah Adair, and has now recently died. By her will she directs the sale of her residence and gives the proceeds “to the children of William Eord and to the children of Thomas Eord [brothers of George Y. Ford, deceased], to be equally divided between them.”

At the death of Sarah Adair only one child of William Eord survived — Sarah E. Carman — and only one child of Thomas Eord — Thomas D. Eord. These two, and these two only, are entitled to the proceeds of sale, in equal shares. The general rule is that where there is a testamentary gift to a class, and no other time for the ascertainment of the class is provided in the will, those persons take, and those only, who answer the description at the date of testator’s death. Hawk. Wills (3d ed.) 86; 2 Schoul. Wills, Exrs. & Admrs. (6th ed.) § 1016; Schmidt v. Schmidt, 80 N. J. Eq. 364.


text:
      In re application of George R. Vail, for sale of lands limited over.
    [Decided June 28th, 1926.]
    1. The statute (P. L. 1851 p. 488) authorizing the sale of lands in certain cases where any future or contingent estate in lands is limited over to infants, or persons not in esse, or contingently, applies to equitable estates as well as legal.
    2. The .operation and effect of the statute cannot be restrained by a testamentary prohibition against sale.
    3. Petition may be filed under that statute by the holder of a vested legal or equitable estate in the lands, notwithstanding the petitioner may have bound himself to pay taxes and upkeep of the property for Ms lifetime.
    On motion to strike out petition.

      Mr. John M. Emery, for the motion.

      Messrs. Hood, Lafferty & Campbell, contra.

   Buchanan, V. C.

Stephen R. Yail died in 1864, seized of certain lands in Morris county. By his will he devised these lands to trustees in trust to permit the use thereof, for each respective life, by five successive equitable life tenants, and at the death of the last survivor thereof to rent the lands for twenty-one years and pay the income to such of the heirs of testator’s son, Alfred, as shall then be living, and at the expiration of the twenty-one years to convey the lands in fee-simple to such of the heirs of said son, Alfred, as shall then be living.

The will expressly directs that the lands shall not be pledged, mortgaged, encumbered, sold or in any manner aliened, except that they may be leased for one year at a time.

George R. Yail, the last named, and the sole survivor of the five equitable life tenants, filed petition under the act to authorize the sale of lands limited over, &c. P. L. 1857 p. 488; 4 Comp. Stat. p. 4688. Notice was given under the statute to the present substituted trustee under the will, and to those of the heirs of testator’s son, Alfred, who are now living. Pour of the latter are minors, and motion is made by counsel, specially appointed to represent their interests, to strike out the petition on the ground that it discloses no right to the relief therein prayed, the contention being that the circumstances of the ease do not bring it within the application of the provisions of section 1 of the statute.

It is rightly argued on behalf of the infants, and tacitly conceded by petitioner’s brief, that the supplement of 1868 (P. L. 1868 p. 792; 4 Comp. Stat. p. 4691 § 50), enacted four years after testator’s death, does not and cannot apply to the case at bar.

The act of 1857, by the provisions of section 1 thereof, applies to those cases, and, hence, those eases only, where "a future or contingent estate in lands is * * * wholly or in part limited over to infants, or persons not in esse, or in such manner that the vesting or duration of such estate may be contingent,” &c., and the application for sale under the act may be made only by a "person owning a vested estate” in the lands.

Obviously, petitioner has not a vested legal estate in the lands. The legal estate is vested in the trustee until twenty-one years after petitioner’s death. Even if the other now living heirs of Alfred should be deemed to have some sort of vested legal remainder in the lands, subject to divesting by death or by birth of other heirs prior to the time fixed for conveyance, petitioner cannot be within that category, for he cannot be a living heir twenty-one years after his own death.

He has a vested equitable estate in the lands.. Does the statute include equitable estates as well as legal estates? Conflicting authorities as to the meaning of the word "estates” in other statutes are cited by opposing counsel. In Bernards v. Warren, 15 N. J. Law 447, it is held that "freehold estate” in the statute as to the settlement of paupers includes equitable as well as legal estates. Undoubtedly, the word estates is used in statutes, as well as in all other cases of legal phraseology, sometimes to denote only legal estates and sometimes to denote both legal and equitable estates. The meaning in each particular case must be found from the context and from the purpose of the statute.

In the present case the context affords no aid'. The purpose of the statute, however, is clear. It is designed to afford a remedy for the situation which may arise where it would be for the best interest of both the holders of vested interests and the contingent future owners to sell the lands, and such sale cannot be made by reason of the infancy or contingency of the future owners. Such a situation may equally well exist whether the estates are legal, or where they are equitable and the trustees has no power of sale. It is concluded, therefore, that in the statute sub judice the word "estate” includes both legal and equitable estates.

It is contended on behalf of the infants that the express prohibition of sale expressed in the will should not be overridden. The prohibition against sale, however, is directed against sale by the trustees, and strictly does not purport to contravene the statutory provisions. Moreover, the will having been made after the passage of the statute, its provisions must be deemed to be made in conformity with the statutory provisions, and in any event must, necessarily, be subordinate to the statutory provisions.

It is further argued that the petitioner is estopped from this endeavor to have the lands sold, because, under the express terms of the will, he has, by his acceptance and enjoyment of the testator’s benefaction, bound himself to the payment of the taxes, repairs and other upkeep of the property for his lifetime. This might well be a controlling argument if this proceeding contemplated benefit only to petitioner. But under the statute the sale can only be authorized if a sale will be to the interest of the owners of the future estate, as well as to the interest of the present estate, and if such situation, in fact, exists, the owners of the future estate should not be deprived of the benefit.

That such a situation does, in fact, exist, would in any case be determined only after a careful inquiry and examination and on evidence satisfactory to the court, and particularly so in the instant case.

The motion to strike out wall be denied.


author: Church, V. C.

text:
    Durham Essex Corporation, complainant, v. Julius Schaffer et al., defendants.
    [Decided June 5th, 1926.]
    Where a restriction in all deeds in a neighborhood scheme prohibited flat or mansard roofs on any buildings erected on the land covered by the deeds, and the evidence shows that the roofs on the major portion of the buildings so erected are flat, and also that the defendants had notice of the scheme of restriction against flat roofs, the fact that one grantee in a deed had violated this restriction does not permit another to do so, and as the complainant acted with reasonable promptness in bringing this suit, it is entitled to a decree to compel the defendants to comply with the restrictions.
    On bill, &c.

      Mr. Frank W. Long, for the complainant.

      Messrs. Frankel é Distler, for Julius Schaffer and Herbert Kuvin.

      Mr. Maurice S. Maurer, for Protective Construction Co.

      Mr. J. Henry .Coyne, for Sophie Eruchtman.
   Church, V. C.

This bill is filed to compel the defendants to comply with restrictions contained in the deeds of conveyance.

The clause in dispute is as follows: “That neither the party of the second part nor its successors or assigns shall or will erect or permit on any portion of the said premises any buildings * * * with a roof of the character or description known as a flat or mansard roof."

One Julius Schaffer started to erect ten dwellings on North Sixteenth street, Bloomfield, New Jersey, and the original bill was filed against him. While the suit was pending Schaffer altered the roofs of five of these buildings to the satisfaction of complainant. He sold the other five and their present owners are now defendants.

There seems to be no dispute as to the fact that complainant owned, and still owns, a large number of lots in this vicinity; that maps have been made and the property advertised for sale as restricted, and that all deeds fox property heretofore sold contain the same restriction as the one under discussion. In other words, it was a neighborhood scheme.

The first point is whether these roofs are flat. This is a matter very largely of fact. Architects were produced who testified that the major part of the roofs is flat. The fiat part runs from the rear of the building to a point within four feet of the front wall. At this point there is a peak rising three feet above the fiat roof. It does not appear to be adapted to any practical use. Photographs were introduced in evidence which show that the major portion of these roofs is flat. The architects testified that in their opinion the roofs would be considered in their profession as fiat. I shall so find. The defendants had notice of these schemes of the restriction against flat roofs. They do not claim they were ignorant of it. It was in the deeds. On this point see Shoyer v. Mermelstein, 93 N. J. Eq. 57.

The second point is that complainant permitted other flat roof houses to be erected in the neighborhood. There is no positive proof that there were other houses in the vicinity with flat roofs. Witnesses for the defendant on this point are vague and uncertain. They say they think there are buildings of this character, they are not sure' of their location or exact type. There is no proof that flat roofs were erected by complainant in the neighborhood or with his acquiescence. The fact that one grantee may have violated a restriction does not permit another to do so. In Bridge-water v. Ocean City Railroad Co., 62 N. J. Eq. 276 (at p. 295); affirmed, 63 N. J. Eq. 798, the court said: “That the complainant has lost all rights to enforce the covenant because the association has, within the past three years, wrongfully permitted several buildings to be put on the camp ground is no excuse for the defendant. No such acquiescence of the complainant is proven as charges him with any liability for the association’s breach of the covenant, nor can the defendants, donees of the association, set up the wrongdoing of their donor to protect them against the enforcement of the donor’s implied covenant.” I do not think, therefore, that this objection can avail them.

The last point is that complainant is guilty of laches. Defendants allege that complainant did not act with proper promptness after learning of the proposed violation that he waited from January until the 1st of April before taking any legal action. Complainant insists that he acted as promptly as possible after ascertaining that the roofs were to be flat. I am inclined to think that complainant acted with reasonable promptness. However, there is another point to be considered in this connection. In Bridgewater v. Ocean Railroad, supra, the court (at p. 292) said: “The' defense that the complainant stood by and suffered the defendants to spend their money is dependent upon another incident, and that is that the defendants must, in order to avail themselves of that defense, have acted in ignorance of the complainant’s rights upon which they intruded. If a party has notice that he is building on another’s lands or in derogation of another’s rights he proceeds at his own peril. In such cases it does not lie within him to complain that the other did not object.” Vice-Chancellor Eielder says in Laverack v. Allen, 130 Atl. Rep. 615 (at p. 618): “The defendant did not erect her building in ignorance of the complainant’s rights, and, knowing those rights, she proceeded at her peril. It does not now lie with her to complain that the complainant did not object.” I do not see how the defendants can succeed on this ground. Counsel for the defendants raise the point of non-injury in their brief. No proof was submitted at the hearing on this point, and I am not at liberty to assume that these violations are not injurious to complainant.

I will advise a decree in accordance with the prayer of complainant’s bill.


text:
    Mary T. Tarrant, executrix of the last will and testament of John Carrig, deceased, complainant, v. Sarah Carrig, defendant.
    [Filed May 26th, 1926.]
    A widow, under her right of quarantine, is entitled, until her dower is set-off, either to occupy or rent the homestead at her election, and a person who receives the rents therefor should be regarded as a bailiff or trustee of the widow, and should account to her for such rents.
    On bill, &c.

      Messrs. Heine, Bradner & Laird, for the complainant.

      Mr. Jacob B. Mantel, for the defendant.
   Church, V. C.

This bill is filed to ascertain the dower of- Sarah Carrig in premises situated at Springfield, New Jersey.

All parties consent to a sale of the property, so it will be decreed.

Certain facts were referred to a special master to take testimony and report. He has filed his report.

Eirst, the age of the doweress. The master found Mrs. Carrig to be sixty-one years old. There is some dispute as to this> as Mrs. Carrig was born in Ireland, and it is, apparently, impossible to produce a birth certificate. Complainant thinks she is sixty-five, but produces no evidence in support of this view. I shall accept the conclusion of the master, as I believe the preponderance of the testimony is to that effect.

Second, the value of the property. The master found from the testimony taken by him that it is $9,000.

I shall confirm his report in this respect. This would make her dower $1,396.38.

Third, the right of the doweress to receive rent for the property since the death of her husband. It appears that Josephine Carrig, a co-heir, occupied part of the premises, and rented another portion to a stranger, receiving $5 per week therefor. Josephine Carrig paid taxes, water bills, gas bills, telephone bills, coal bills and food bills. The doweress claims she is entitled to the mesne profits up to the time dower is actually assigned. In the case of Shields v. Hunt, 39 N. J. Eq. 485, the court held, speaking through Vice-Chancellor Van Fleet: “It is the clear purpose of the law to give a widow, whose husband dies seized, a share of the profits of his land accruing between his death and the time when dower is assigned * * * therefore, the person who for that period receives the rents should be regarded as bailiff or trustee of the widow and liable to an action by her if he refuses to account to her for his stewardship.” In Lloyd v. Turner, 70 N. J. Eq. 425, the court said: “A widow under her right of quarantine is entitled until her dower is set-off either to occupy or rent the homestead at her election.” See, also, De Roche v. Meyers, 69 N. J. Law 14, and Reed v. Hackney, 69 N. J. Law 27.

I think, therefore, the widow is entitled to the reasonable rental value of such parts of the premises as were occupied by or rented to others. The master has found these sums to be $780 for rooms occupied by Josephine Carrig and $280 for those rented to the boarder. I do not think there is any merit in the contention that dower was assigned by an offer of $800. It was not accepted, and no steps were taken to have it legally assigned as requested by the widow. Neither do I think the fact that Josephine Carrig is not a party to the suit is important. She is a co-heir, and the complainant-executrix is acting for her. The widow is not chargeable with the maintenance of the property until dower is assigned, but should, I think, be charged with any sums which it can be shown were expended for her for coal, gas, food, nursing and care.

As to the question of damages, I think the case of Shields v. Hunt, supra, is authority for the statement that the damages for failure to assign dower are her right to the mesne profits accruing during the time between her husband’s death and such assignment, and only that.

I will advise a decree according to these conclusions, direct an immediate sale, and, if necessary, refer back to the special master the question of how much should be rebated for expenditures in her behalf for coal, gas, food, &c.

I will allow her counsel $200 and costs.


text:
    The Federal Land Bank of Springfield, Massachusetts, complainant, v. Katrina Young et al., defendants.
    [Decided May 24th, 1926.]
    Evidence examined, and held, that the proof does not show that the mortgage in question was fraudulently represented to be a first lien, when, in fact, it was a second.
    On bill, &e.

      Mr. Otto A. Stiefel, for Bertha Senger,

      Mr. Arthur H. Bissell, for the defendant Stevens.
   Church, V. C.

Complainant in this ease holds a first mortgage on property in Hunterdon county owned by the defendant Young. There is another, a second mortgage on this property. This was assigned to defendant Mrs. Stevens by the defendant Mr: Senger. It was purchased with money belonging to the estate of Charles Bartsch, Mrs. Stevens’ father, as an estate investment. The Bartsch estate was settled in the New York courts. . A decree was entered passing the accounts on the 16th day of October, 1924, and the mortgage in question was distributed as part of the assets of the estate. It was then over due. Apparently, no investigation was made by the beneficiaries as to the soundness of the security. Thereafter it became apparent that the mortgage was in fact a second mortgage. On the 15th of July, 1925, the original decree was re-opened, as the New York law does not permit executors to make investments of this character. Mrs. Stevens’ account, with her consent, was surcharged with the amount of the mortgage and it was re-assigned to her. She now alleges that she was induced by Mrs. Senger to invest in this mortgage through fraud, and was assured that it was a first mortgage. She seeks to compel Mrs. Senger to take the mortgage back and pay her the $2,000 in order that she make return of the money to the Bartsch estate as directed by the New York court.

Mrs. Stevens declined to appear in court here, although there was no reason why she could not have done so, and I have therefore not had the benefit of personally seeing her and listening to her examination-and cross-examination. Her deposition was taken in New York.

The New York court has directed her to replace $2,000 in the estate. Her theory seems to be that she cannot do this unless she gets the money from this mortgage. No other money will do. The decree, however, seems to be that she repay $2,000 — any $2,000 will do.

In the first place there is yet no proof that Mrs. Stevens has been defrauded of any money whatever.

The foreclosure sale has not yet been held, and it may be that the property will bring enough to pay both mortgages in full. Indeed, counsel for Mrs. Senger insists that such will be the case. Counsel for Mrs. Stevens thinks it doubtful. In any event there is no proof that Mrs. Stevens will lose anything.

Again, this surcharge was made with Mrs.. Stevens’ consent. An executrix ordinarily is not responsible for poor investments if made by her in good faith and in an honest belief in their value. Had she made this point before the New York court, that tribunal might have held there was no liability on her part and that she could not be charged with notice of the record showing the- mortgage to be a second one, inasmuch as she had been lead by the fraud of one in whom she trusted, to believe it to be a first. She accepted the return of the mortgage voluntarily. We come now to the direct question. Did Mrs. Senger fraudulently persuade Mrs. Stevens to take this mortgage, assuring her that it was a first? The answer, of course, must be made after a careful analysis of the testimonj7. Mrs. Stevens’ affidavit of September, 1925, on file in the cause suggests no fraud on the part of Mrs. Senger. Mr- Senger only is accused. In her deposition is the following:

“Q. In other words you mean j-our ‘no, no’ that you did not tell Mr. Wright that Mrs. Senger had told you that this was a first mortgage? Answer yes or no. A. I said that Mr. Senger had told me it was a first mortgage to Mr. Wright. That’s all. In all these ten years you forget.”

In Mrs. Stevens’ affidavit occurs the following:

“At that time [the time of the mortgage transaction] I was acquainted with Charles P. Senger, of Plainfield, New Jersey, who had been the adviser of said Charles Bartseb from time to time in matters of investment.”

This, apparently, with the idea of establishing a position of trust and confidence between Mr. Senger and the estate. It was admitted in open court that this statement is untrue and that Mr. Senger never knew Charles Bartsch. There is in evidence a letter dated September 16th, 1924 — over a year before Mrs. Stevens’ interposition in this suit — -from the mortgagor saying, “Received your letter dated September 12th, * * * I have made application to the Federal Land Bank for the money that is due you. on second mortgage.” This she sent without comment to Mr. Senger.

Also it is significant that Mrs. Stevens was unwilling to appear personally in court. Why? Perhaps because she could not explain the contradictions in her various affidavits and testimony.

On the other hand we have the clear and specific denials of both Mr. and Mrs. Senger of any fraud. They both insist that Mrs. Stevens was told, and well knew, it was a second mortgage. We have the statement, to be sure, of one Wright. Mr. Wright was mistaken, especially in view of the fact that that Mr. Senger told him it was a first mortgage, but I believe it was under his direction that Mrs. Stevens made the misstatements I have alluded to. Prom a careful review of the testimony and the history of the transaction extending over a number of years I am convinced that Mrs. Stevens was thoroughly aware that she was buying a second mortgage.

■ The first effort in the case was apparently to involve Mr. Senger in the fraud allegation. Mrs. Senger’s part in the matter was an afterthought. Mr. Senger cannot, in my opinion, be held to have defrauded either personally or as his wife’s agent. Neither can Mrs. Senger.

I will advise a decree in accordance with these conclusions.


text:
    Charles Zimmer, complainant, v. William A. Dunlap et al., defendants.
    [Decided May 24th, 1926.]
    Where a judgment is docketed as against Guiseppe Chiera, and Joseph Chiera executed a mortgage, the judgment is not notice to a bona fide holder of the mortgage for value and without actual notice, although the judgments were docketed prior to the recording of the mortgage.
    On bill, &c.

      Mr. Herman Waldman, for the complainant.

      Mr. Thomas Brunetto, for the defendants.
   Church, V. C.

This is a bill praying that the sheriff of the county of Essex be restrained from selling under judgment execution the lands mentioned in the bill until final hearing.

It appears that one Joseph Chiera obtained title to certain lands in Bloomfield, New Jersey. Subsequently, three judgments were recovered in the district court against Guiseppe Chiera, and docketed in the Essex county court of common pleas.

After these judgments were docketed Joseph Chiera executed a mortgage to the complainant for $15,000 covering the lands in question. The three judgments against Guiseppe Chiera were assigned to the defendant Calandra, who has issued executions and has directed the sheriff to sell, seeking thus to divest complainant of all interest under the mortgage. The foreclosure suit includes the holder of the judgments as a party defendant, asks that defendant be restrained, until final determination of the foreclosure suit, from proceeding on the executions against the property land only that property. The bill prays that the priorities of the mortgagee and the judgments as liens against the mortgaged premises be determined in said suit. Vice-Chancellor Backes issued a rule to show cause with temporary restraint, and the matter was argued before me on the return day.

The reason alleged for asking the injunction is that the judgments are not notice to the complainant, because they were entered and docketed under the name of Guiseppe Chiera, the record title being in the name of Joseph Chiera. The complainant is, it is contended, therefore, a Iona fide holder of the mortgage for value and-without notice, although they were docketed prior to the recording of his mortgage.

There is authority for this contention. In the case of Yucker v. Morris, 85 N. J. Hq. 476, Vice-Chancellor Griffin held—

“I am inclined to the view that a court of law, on proceedings properly instituted, would set aside the judgment. But the judgment stands of record in full force and effect against Thomas E. Morris, or T. Edward Morris, as against an innocent purchaser. By our statute a judgment in the district court may be docketed in the court of common pleas, and, when so docketed, becomes a lien on lands, and the clerk is required to note the judgment in a proper index. The object of this is to give notice to the world of the existence of the judgment and of its lien. Considering the law above set forth, would it be negligence on the part of a searcher to treat a judgment against Edward Morris as against Thomas E. Morris or T. Edward Morris? I think not. If the judgment, on a proper application, would be set aside in a court of law, by reason of the absence of the Christian name, or proper name of the party defendant, why should a searcher go farther when he finds that the Christian or proper name of the defendant in the judgment is not the Christian or proper name of the person against whom he is searching? To hold otherwise would greatly increase the expense in, and render more hazardous, land transactions, and be contrary to the existing law.”

In the case of Lembeck, &c., Brewing Co. v. Barbi, 90 N. J. Eq. 373; affirmed, 91 N. J. Eq. 533, Vice-Chancellor Lewis held—

“A mortgage was made by Barbi, also known as Barboe. The title was in Borbely and a mortgage was made that way.

“1 am therefore of the opinion that the mortgage of the building and' loan association for $1,800 is entitled to priority of payment over the mortgage of the Lembeck & Betz Eagle Brewing Company, because, at the time the building and loan association mortgage was given, the mortgage of the brewing company was not constructive notice, inasmuch as it was recorded in the names of the mortgagors in such form that a search in the real names of the owners would fail to disclose it. If the searcher is charged with the duty of searching for fictitious names, either in the chain of title or for encumbrances in order to locate instruments of record affecting the premises involved, the recording system would be a nullity, and the searcher would be helpless, because he has no means of determining what fictitious name may have been employed by a grantor or a mortgagor in a previous deed or encumbrance.

“An otherwise perfect chain of title search in the real names of the parties, as they appear of record, would not be worth the paper it was written on, because you, could never tell what outstanding deeds or encumbrances might exist of record affecting the premises in fictitious names.”

The defendant insists that the bill of complaint does not allege a cause of action cognizable in a court of equity. Counsel has called my attention to a long list of cases -which he asserts support this proposition. I think he fails to grasp the exact purpose of this bill. It is not to attack the validity of the judgments, but merely to have the priorities of the liens on the property determined. Defendant can proceed agaifist other property of Guiseppe Chiera, the restraint sought being only against the land under foreclosure, and that only until the priorities are determined. In other -words, he admits the validity of the judgments. See Stratton v. Packer et al., 14 Atl. Rep. 587, and Hazelhurst v. Sea Isle City Co., 25 Atl. Rep. 201. In 19 Rul. Cas. L. 400 § 179, it is stated:

“A rule may be deduced from the adjudged cases that a mortgagee may not enjoin a sale of the mortgaged premises under an execution on a claim subordinate to Ms mortgage where the sale cannot prejudice his rights, but if he, himself, is without fault, and the intended sale is in violation and disregard of his legal rights, he may procure an injunction.”

I think the bill alleges a cause cognizable in equity.

Defendant further alleges that Calandra is not the proper or necessary party to the proceeding. Eule 6 of the court says:

“Any person may be made -a defendant who either jointly, severally or in the alternative is alleged to have or claim an interest in the controversy, or in any part thereof adverse to the complainant, or whom if is necessary or proper to make a party for the complete determination or settlement of any question involved therein.”

I cannot see how the priorities between mortgagee and judgments could possibly be determined unless the assignee of the judgments were in court. If he were not in court there would be nothing to prevent his proceeding to sell under the execution, and thus, possibly, make useless further progress in the suit commenced by this bill.

I will therefore advise a decree continuing the restraint prayed for until final hearing.


text:
    Gennaro Reddavide and Nicolina Reddavide, his wife, complainants, v. Joseph Laskowitz, Ida Chirelstein and Bessie Bell, defendants.
    [Decided June 7th, 1926.]
    1. The purchaser for value of a chose in action is bound by the equities against it in the hands of the original obligor.
    2. Where two ignorant people executed a bond and mortgage which was supposed to be made to two other ignorant people, but, in fact, was made to an agent, who afterwards assigned it to L. and also later to those’to whom it was supposed to be drawn, and who, in fact, advanced the money loaned thereon, the money due on the bond and mortgage should be paid to the two who advanced it originally, notwithstanding the fact that their assignment w'as later than that to L., as it is the duty of an assignee of a mortgage to inquire of the mortgagor whether or not its validity would be disputed, and if he chooses to refrain from doing so, relying entirely upon the representations of the assignor, he has no right to ask another to bear the consequences of his folly.
    On bill,, &e-

      Mr. Samuel Woilman, for the complainants.

      Mr. Benjamin M. Weinberg, for the defendant Laskowitz.

      Mr. William X. Flanagan, for the defendants Chirelstein and Bell.
   Church, V. C.

This is a bill in the nature of an interpleader. The complainants sought a mortgage on their property through one Kleinman. The defendants Chirelstein and Bell, and also defendant Leskowitz, all of whom had made loans through Kleinman before, examined the property and agreed to make the loan. On October 14th, 1924, complainants and the defendants Chirelstein and Bell met in Kleinman’s office. Complainants executed a mortgage, and, at least, one bond. Chirelstein and Bell thereupon gave complainants checks for the agreed upon consideration, about $1,700. Complainants supposed, as did Chirelstein and Bell, that the mortgage ran to Chirlestein and Bell, Kleinman so reading the instruments aloud to them. Neither complainants nor defendants can read or write English. The bond and mortgage were, in fact, payable to Kleinman; were acknowledged before one Stalford, an attorney-at-law, and recorded the following day. Kleinman gave defendants a bond stating it ran to them, and that he would send them the mortgage after it was recorded. The husband denies that he signed this bond. As to this I think he is mistaken, as a careful reading of the testimony convinces me that he did, in fact, sign it. On October 15th Kleinman executed an assignment of the mortgage to defendant Laskowitz, receiving therefor $1,700 from one Lubetkin, Laskowitz’s son-in-law and attorney. This was recorded on October 20th. A month or so afterwards Chirelstein and Bell had the bond they held read to them, and found it ran to Kleinman and not to themselves. They demanded an explanation and Kleinman executed an assignment to them dated November 17th, 1924, and recorded January 19th, 1925. The mortgage is now in the possession of Laskowitz. It does not appear how he got it. Kleinman has absconded.

Laskowitz contends that he is entitled to the money paid into court because his assignment was first recorded, and that he is not chargeable with notice of the other assignment. That might be if complainants has executed a mortgage to Kleinman, and Kleinman had paid them $1,700, and then assigned for value to Laskowitz, and the latte.r. had recorded it; and it later appeared that Chirelstein and Bell theretofore, relying upon some authority to Kleinman, had taken an assignment from Kleinman but had not recorded it. The situation here is different. The defendants relied on the representations of the complainants. Complainants say they thought they were executing, and meant to execute, a bond and mortgage to Chirlestein and Bell, and it is undisputed that Chirlestein and Bell then and there gave them checks for, approximately, $1,700. The witness Stalford says he read the contents of the papers to complainants before they signed and informed them that the obligee was Kleinman. He says he read the papers verbatim and told them the due date. The papers have no due date. I think he is mistaken in saying he made the complainants understand the mortgage ran to Kleinman. They are illiterate and ignorant people, and the reading of long, legal documents verbatim would mean little to them. I am convinced they thought they were giving the mortgage to Chirlestein and Bell, and that Chirlestein and Bell were equally sure that they were paying $1,700 for a mortgage to themselves.

The equity here is one existing against the mortgage in the hands of the original obligor, and Laskowitz is bound thereby.

“The purchaser for value of a chose in action is bound by the equities existing against it in the hands of the original obligor.” Putnam v. Clark, 29 N. J. Eq. 412; affirmed, 33 N. J. Eq. 338.

Moreover, I believe that Laskowitz had sufficient notice of the transaction between complainants and defendants Chirelstein and Bell to make it obligatory on him to investigate. Had he done so, Kleinman’s intended fraud would have been frustrated. He wa's in Kleinman’s office while this transaction was going on. A simple question would have disclosed the fact that it was not the intention of the parties to make Kleinmian the mortgagee. Eive' days.intervened between the date of the assignment to him and its record. He knew the mortgagors and had visited them at the property in question.

“It is always easy for an assignee before purchasing to inquire of the mortgagor, or of those who have succeeded to his rights, whether or not its validity will be disputed. If he chose to refrain from doing so, relying entirely upon the representations of the assignor, I think he has no right to ask the complainant [in this case the co-defendants] to bear the consequences of his own folly.” Vredenburgh v. Burnet, 31 N. J. Eq. 229; affirmed, 34 N. J. Eq. 252.

I will advise a decree that the money in court be paid to Chirelstein and Bell.


text:
    Frank J. Bock and Edward H. Wright, as receivers of New Jersey Refrigerating Company, petitioners, v. Columbia Brewing Company, a New Jersey corporation, defendant.
    [Decided May 21st, 1926.]
    Even where receivers and tbeir counsel do excellent work and sell the property involved to the best advantage, in fixing fees, consideration must be'given not only to the work done, but to the quantum of the estate, and an allowance of eighteen per cent, of the fund would be excessive.
    On application for allowances to receivers.

      Mr. J. Henry Harrison, for the petitioners.

      Mr. Merritt Lane, Messrs. Hudspeth & Demarest, Messrs. Perkins & Hrewin, Mr. D. Hugene Blankenhorn, Messrs. Fisk & Fisk, Mr. Shirley N. Carr, Messrs. Wall, Haight, Cm'ey & Hartpence, for the defendant.
   Church, V. C.

This is an application for allowances to counsel and receivers in the matter of the dissolution of the Columbia Brewing Company.

This was a subsidiary of the New Jersey Refrigerating Company, and its stock was owned by the refrigerating company. In the winding up of the affairs of that company it became necessary to appoint receivers for the subsidiary company in order that its assets might be sold and turned over to the parent corporation.

I appointed the same receivers whom I had appointed in the matter of the refrigerating company. They sold the property for $56,000, taking-a small payment in cash and a purchase-money mortgage of $42,000.

The receivers ask for $2,500 each and counsel for $5,000, and they have submitted statements which, in their opinion, justify these allowances. It should be noted that the amount asked for, $10,000, is nearly eighteen per cent, of the corpus of the estate.

While I have no doubt that the receivers and their counsel did excellent work and sold the property to the best advantage, I believe such a percentage of the estate for allowances is excessive. Consideration must be given, not only to the work done, but to the quantum of the estate. Unger v. Newlin Haines Co., 95 N. J. Eq. 16.

I will allow the receivers $1,000 each and counsel $2,500.


text:
    Harry S. Katzin et al., complainants, v. Harry Kruvant, defendant.
    [Decided May 24th, 1926.]
    Where a .contract for sale of lands stated that the lands were “better described in a survey made, &e.,” specific performance will be granted according to the survey, with any encroachments plainly shown thereon.
    On bill, &c.

      Mr. Benjamin M. Weinberg, for the complainants.

      Mr. Jacob L. Newman, for the defendant.
   Church, V. C.

This is a suit for specific performance. The contract under discussion gives the following description of the land to be conveyed :

“Being the premises located on the southwest corner of Plane and Academy streets, Newark, New Jersey, and better described in the survey made by Lehlbaeh Bros., dated October 23, 1920, and known as No. 46371 as described on said survey, and conveyance is to include the entire tract with the exception of that part of the tract which is set out on the said survey, which is marked ‘6.61 over line,’ which is in the rear of the tract to be conveyed, and it being only the left side of the rear, that part being formerly owned by one Yliet.”

The contract is dated September 17th, 1925. At the time fixed for closing proper tender of deed was made, but the defendant refused to take title. He had another survey made by Lehlbaeh Brothers, which disclosed the same situation as set forth in the survey of 1920. Defendant’s refusal is based upon the alleged objections which appear upon the face of the survey of 1920, as well as on that of 1925. Defendant offered to show at the hearing that he had never seen the survey of 1920. I said then, and still think, that as he signed the contract referring to the survey, and there is no allegation .of fraud, he was presumed to have notice of it. He had an opportunity to inspect it, and if he did not do so it was his own fault. He is a real estate operator of large experience, and knew he was entering into a contract involving about $146,000. If he did not choose to make an investigation he cannot blame the complainant.

We, therefore, come to the question, What does the reference in the contract to the survey mean? Defendant insists that it relates only to the size of the tract.' Complainants contend that the reference binds the defendant to take the title in all respects exactly as shown on the survey. In order to ascertain the size of the plot it is absolutely necessary to look at the survey. The words, “being the premises located on the southwest corner of Plane and Academy streets,” in the contract standing alone mean little. There is no indication as to frontage, depth, shape or character of the buildings, if any. Thus, one must look to the survey for size. One so looking, especially an experienced real estate operator like the defendant, who has participated in a great number of similar transactions, could not help seeing the alleged encroachments. They are plainly marked on the survey. They are distinctly apparent even to one unversed in such matters. In the clause of the contract quoted above there are three specific references to the survey.

Counsel for complainant has been kind enough to explain to the court the words “better” and “describe.” Thus, the court learns — perhaps for the first time — the following: “Webster defines the word ‘describe’ as follows: ‘To delineate or mark the form or figure, &c; to draw a plan; to represent by lines or other marks on paper or other material; as to describe the surface of the earth by a map or chart.’ ” IS Corp. Jur. defines the word “describe” as follows: “To set forth; to represent; to delineate; to express; to depict; to portray.” Eunk & Wagnall’s Standard Dictionary says: “Describe to give the characteristics of, as in words or by signs so that another may form a mental image or idea. Syn. delineate — I to draw in outline; represent by sketch or diagram II to represent pictorially, &c.; to give a mental picture of, to depict, describe, draw figure, paint picture, portray, represent sketch,” &c. Webster says of the word “better” the primary sense is “more” or “advanced further.” The words better described, therefore, mean “more fully delineated, more fully pictured or painted.”

The opinion of, at least, one of these distinguished lexicographers has been affirmed by the court of errors and appeals. In the case of Boynton Real Estate Co. v. Wood-bridge, 109 Atl. Rep. 514, Mr. Justice Black, speaking for the court, says: “To ‘describe means to narrate, express, explain/” — Webster’s Dictionary. This was a case in which the court considered an ordinance which provided that a notice should “briefly describe the purposed improvement.” In the opinion of the supreme court, in that case Mr. Justice Bergen says: “I am of the opinion that the character of the work should appear either by some plan or specification to which a person interested may refer, or sufficiently described in the ordinance.”

I believe, therefore, that defendant’s definition — that is, that the reference to the survey is for size only, is entirely too narrow. He is a man of large real estate experience, signed the contract freely without any fraudulent misrepresentations, and, if he had wished, could have studied the survey before signing. I am of the opinion that the contract means that the defendant shall take the property in exact accordance with the survey referred to in the contract alleged encroachments included.

Defendant’s counsel announced at the hearing that no abatement in price would be asked for any alleged encroachment, and no proof was offered that the matters and things indicated in the survey are actually unlawful. Therefore, it is unnecessary to discuss that question.

I will advise a decree directing specific performance.