author: Hendrickson, J.

text:
    Charles M. Headley, appellant, v. Martha B. Leavitt, respondent.
    [Filed July 20th, 1903.]
    1. Where a married woman takes up and becomes the owner of promissory notes on which she is accommodation endorser, her contract to release a prior endorser for sufficient consideration is binding upon her. It is a primary promise by her, which she is under no legal disability to make under section 26 of the Married Woman’s act. Qen. Stat. p. ?M11.

    2. The consideration of such a contract need not move directly to the married woman, for if it passed to a third person at her request it is sufficient.
    3. An accord and satisfaction that is unexecuted is not an available defence at law against the original cause of action, but it may in a proper case become available as an equitable defence thereto.
    4. Where an equitable defence to such an action fails only because it was not. cognizable in the law court, such result will be no bar, to the action of a court of equity, in applying such equitable remedy to the relief of a defendant by enjoining the collection of the judgment recovered in such action.
    5. Such a defendant is not required to first test the accuracy of the ruling of the law court by writ of error before proceeding in equity. He • may accept the ruling of the law court and pursue his remedy at once in the court of equity.
    On appeal from an order advised by Vice-Chancellor Reed denying an injunction.

      Mr. Linton Batterthwait, for the appellant.

      Mr. Jolm K. Baches, for the respondent.
   The opinion of the court was delivered by

Hendrickson, J.

This is an appeal from an interlocutory order denying to the complainant relief by injunction against a judgment obtained against him by the respondent in the supreme court. Since this appeal was taken the respondent has departed this life and by order of this courtThe action stands revived as against Harry D. Leavitt, her executor.

TJpon referring to the bill and affidavits it appears that the controversy arose in this way: The complainant and one William H. Leavitt, a son of the respondent, about the year 1892, organized the Iieadley-Leavitt Company, a New Jersey corporation, the former becoming president and treasurer and the latter secretary. The complainant was the owner of one-half of the capital stock and William H. Leavitt and his wife, Emma D. Leavitt, owned the other half, he holding one share thereof and his wife the balance.

The corporation had its place of business in the city of Trenton, and was a dealer in gas-fixtures, mantels and other builders’ supplies. In the year 1895 the secretary, who had been a collector of moneys due the company, was found to be short in his accounts to the amount of about $6,000, which he had misappropriated. The company then had outstanding its notes in bank, aggregating about $6,600. These notes had been discounted upon accommodation endorsements made by the complainant and by the secretary, or by others procured by the latter. Among the accommodation endorsers procured by Leavitt were his father, Lyman Leavitt; his mother, Martha B. Leavitt; one Nicholas Jahn and one Enoch W. Hooper. The proceeds of all notes discounted were placed to the credit of the company.

A conference took place between the complainant and the secretary and the latter’s father. The misappropriation and the financial embarrrassment were among the subjects discussed. The son had promised to raise some money to pay part of his misappropriation, and the father refused to advance more money and shortly obtained the appointment of a receiver to wind up the affairs of the company as an insolvent corporation. A little later the respondent called upon complainant and said that she and her husband, knowing that their son was responsible for the failure of the company, had decided to take up all the accommodation paper of the company. The complainant replied that he did not care to have them do that, but made this proposition: that ill she, the respondent, would take up and relieve complainant of all responsibility for what notes were in the Mechanics National bank, together with the notes she and her husband had already taken up, the complainant would assume responsibility for the notes in the .Trenton Banking Company. The respondent accepted this proposition and the two at once proceeded to the company’s place of business and there, in the presence of the receiver, took from the note-book of the company two lists of notes, one list being made up of notes held by the Mechanics National Bank, designated in the bill as group A, and the other list being made up of notes held by the Trenton Banking Companj', designated in the bill as group B. The two lists were made up so as to divide the notes as near equally as possible. The agreement as above indicated was there restated as applying to the respective lists, and reaffirmed between the parties. It was agreed that respondent would take up the notes in group A and relieve complainant from all liability thereon if the complainant would take up and become responsible for all notes in group B and relieve from liability thereon all the endorsers or makers thereof with the exception of the company, together with the $1,200. note in the Mechanics National Bank, on which the complainant and A. C. Reeves were accommodation endorsers. It was also agreed between the parties that they would have the notes protested so that they might present their claims to the receiver in better form, and that for whatever loss resultéd upon the claims above the returns from the receiver, each would be responsible for his o'r her own loss.

Upon the notes in group A the respondent was an accommodation endorser after the complainant. Of the notes in group B she was accommodation endorset on one note for $100 after complainant. On five notes of this group there were other- endorsers prior to complainant: Soon after the' agreement thus made the complainant made known to the Trenton Banking Company his desire to assume personal liability for the notes in group B, though they' were not yet due and his liability thereon was' not yet fixed, and secured the bank by a mortgage upon his city property, arranging with it to hold the notes until the affairs of the company should be wound up by the receiver. The complainant was the largest creditor of the company and his object was to apply his dividends from the receiver to aid him in taking up the notes. Both the complainant and the respondent presented claims to the receiver, based upon the notes in their respective lists, and received dividends thereon to the amount of eight per cent, of their claims. There was a delay in settlement of the company’s affairs by the receiver.

No demand was made by the Trenton Banking Company upon any of the endorsers of the notes in group B, nor any complaint made by the respondent to the complainant that he had not taken up the notes in group B and released the endorsers thereof. Nor did the respondent give any notice to complainant of any desire or purpose on her part to rescind the contract before bringing her suit against the latter as endorser upon the notes in group A. The first intimation the complainant had as to any dissatisfaction of the respondent in regard to said contract, or as to any delay in the final performance of its terms by complainant, was when, on October 15th, 1901, process was first served upon him in the suit. The complainant appeared and put in the defence of accord and satisfaction founded upon the contract and the acts of the parties thereunder, but because the defendant had not, in fact, taken up the notes in group B and therefore could not show satisfaction the defence was overruled by the learned' trial judge and verdict was directed for the plaintiff.

After the trial the complainant at once completed the performance of his part of the contract by taking up the* notes in group B and releasing and 'discharging therefrom all the endorsers thereof. These facts and others, to be hereafter referred to, were set out in the bill and relief was prayed, on the ground that it would be unconscionable to permit the judgment to'be satisfied' out of the complainant’s property. A demurrer was filed to this bill. In support of the demurrer it was contended that the alleged contract by the defendant was invalid (T) because she was a married woman and her undertaking was to pay the debt of another without consideration moving to her; (2) the agreement was not an accord and satisfaction; (3) the judgment was res adjtidicata.

The learned vice-chancellor, after argument, filed a memorandum to the effect that he was unable to discover any equitable ground for restraining the common law judgment creditor from enforcing her rights thereunder.

The first ground of demurrant’s contention would be good if the agreement of the wife was in the nature of a suretyship or of a collateral promise to answer for the debt of another within the meaning of section .26 of the Married Woman’s act. Gen. Stat. p. 2017. The collateral promise here mentioned is of like character to that arising under a similar clause of the statute of frauds, requiring such promise to be made in writing in order to be enforceable (Gen. Stat. p. 1608 § -5), and is subject to a like construction. First National Bank of Cranbury v. Dohm, 23 Vr. 363. In that case the married woman purchased of a bank the note of her husband and a third person and the judgment obtained thereon, and gave her own note to the bank for ihe consideration; and it was held that, although no formal transfer had been made of the judgment, she became the equitable owner thereof and there remained no debt or liability of another person to the bank to which her promise could be collateral, and that the note was not invalid under the proviso of the Married Woman’s act. And it was held, generally, in that case that'if a defendant’s promise is made upon a substantial consideration, moving to himself, for his own use and advantage, it creates an enforceable obligation, although not reduced to writing. The same principle is laid down in Cowenhoven v. Howell, 7 Vr. 323, where it was held that the statute of frauds does not apply where the effect of the new promise is to extinguish the liability of the original party before the obligation of the new promise attaches. This principle, as applied to contracts between persons contingently liable upon notes and others interested therein, is illustrated in the cases of Sanders v. Gillespie, 59 N. Y. 251, and L’Amoreux v. Gould, 7 N. Y. 349.

There is another aspect of the case sub judice, which shows the promise to be original and not collateral. Complainant is not here relying upon that part of defendant’s agreement which provided that she should take up and pay the notes upon which her action at law was brought. That part of her engagement had been performed (and, as may be presumed, voluntarily performed) before the action at law was commenced. The stipulation whose enforcement is now sought is this: that if and when she should acquire from the Mechanics Bank the notes in group A, she would release the complainant from all liability thereon. Such a stipulation is not collateral, it is original. Neither is it a promise to pay a debt; it is rather a promise that if the promisor shall acquire by purchase a certain chose in action, binding severally upon the promisee and others, the promisor will release the promisee from liability thereon. Such a promise is not within the statute.

It thus appears that the engagement of the respondent, whose enforcement is here sought, was not invalid under the proviso of the Married Woman’s act. It is therefore valid if made upon sufficient consideration. Was her contract based upon a sufficient consideration? It cannot be said that any valid consideration arose to her growing out of her endorsement of the notes in group A, for she was only an accommodation endorser thereon, and being a married woman she could not be held liable. But one effect of the agreement, if performed, would be to release her son, William H. Leavitt, who stood primarily liable on a note of $800 in group A from his liability to the complainant, a subsequent endorser. It would also have the effect of releasing Jahn and Hooper, who became endorsers on notes in group B at her son’s request. They were liable before complainant to an amount exceeding $900. Her husband was also released from contingent liability'- on one or more of the notes in group B. The consideration to respondent evidently arose out of a benefit to herself or to third persons she desired to aid, and out of the detriment to complainant by her inducing him to release endorsers prior to himself. The consideration to support a promise may be either a benefit accruing to the promisor or a loss or disadvantage to the promisee. Conover v. Stillwell, 5 Vr. 54; Corle v. Monkhouse, 5 Dick. Ch. Rep. 537. The detriment to the promisee necessary to constitute a consideration is sufficient^ if it consists of the simple surrender of a legal right. And, in fact, any act which constitutes a change of the legal position of the promisee may be a valid consideration. Harr. Con. 91. It was not necessary to the validity of the contract that the consideration should move directly to the respondent. It was sufficient if it passed to third persons at her request. 6 Am. & Eng. Encycl. L. (2d ed.) 686. Nor does the matter of the adequacy or inadequacy of the consideration enter into the question of validity. That is left to the free choice and personal judgment of the parties. 6 Am. & Eng. Encycl. L. (2d ed.) 694.

Are the complainant’s rights foreclosed by the action of the common law tribunal ? An affirmative answer must follow if the jurisdiction of that court was complete. But the defence of accord and satisfaction was overruled because it was unexecuted,' or only in part executed. This condition renders the defence unavailable at law. Allen v. Harris, 1 Ld. Raym. 122; Lynn v. Bruce, 2 H. Bl. 318; Stone v. Todd, 20 Vr. 274; Line & Nelson v. Nelson & Smalley, 9 Vr. 358.

The defence offered would have been good in equity. The agreement was lawful in character at its inception. The defendant, in bringing the suit at law acted in disregard of it only because of the delay of complainant in actually talcing up the notes in group B and discharging the endorsers thereon. The agreement was silent as to the time of performance. It will therefore be construed as requiring performance within a reasonable time — and that means a reasonable time under the particular circumstances of the case. Harr. Con. 279, 280; Gaslight Company v. Manufacturing Company, 122 U. S. 300. By giving the mortgage to the bank to secure the payment of tire notes in group B out of his own private estate, he secured a binding contract from the bank to hold the notes until the receiver should be discharged. This was done in part performance of the contract. Neither the respondent nor the endorsers upon the notes in group B had suffered any injury or damage by the delay in final performance, nor were they likely to sufEer any. There was no refusal on the part of the complainant to perform his part of the contract by the actual talcing up of the notes. The bank was made safe, and equity, we think, would have controlled this security for the benefit of the endorsers upon -the notes in group B. It further appears that respondent’s son, William H. Leavitt, died in 1901, and not until after this event was the suit commenced. By resting upon respondent’s promise complainant was deprived of an opportunity to take action toward indemnifying himself as against the son on the $800 note in, his lifetime. It is apparent, we think, that upon the facts stated the complainant, in reliance upon the respondent’s promise, surrendered rights and changed his position in a way that would render it inequitable for her to be permitted to withdraw from the contract without any effort to restore him to his rights as they had before existed. Under the circumstances, we think the contract was an existing one at the time of the trial, and that the complainant had an equitable defence to the action, which was not within the jurisdiction of the common law court to consider.

This being so, the complainant is not barred in equity from seeking the remedy that was determined adversely to him in the law court. The rule is that where the party has equitable rights not cognizable in a court of law, which would in a court of equity have prevented such an adjudication as was made in the court of law, the judgment will interpose no obstacle to redress in equity, since the court of law had no proper, jurisdiction of the subject-matter forming the basis of redress in equity. 2 Story Eq. Jur. 1573. In Smalley v. Line et al., 1 Stew. Eq. 348, it was held that the fact that a complainant attempted to set up a merely equitable defence in a suit at law will not debar him from subsequently setting it up in a court of equity against the judgment. This doctrine is sustained, also, in Hughes v. Nelson, 2 Stew. Eq. 547. Nor is a party denied such remedy because he did not test the accuracy of the action of the law court in overruling his defence by a review on error. He may accept the ruling of the law court and pursue his remedy in equity. Borcherling v. Ruckelshaus, 4 Dick. Ch. Rep. 340.

The bill shows that soon after the trial in the law court, and before this bill was filed, the complainant, as before stated, took up and made satisfaction to the bank for all the notes in group B, and relieved and discharged from liability thereon all the makers or endorsers except the Ileadley-Leavitt Company. We think that under all the circumstances he did this within a reasonable time, and that he is entitled to invoke the equitable powers of a court of equity to protect him against the judgment of the defendant’s executor.

The result is that the order dismissing the order to show cause will be reversed and an order should be made overruling the demurrer and directing that an injunction issue according to the prayer of the complainant’s bill.

For reversal — T'iib Chief-Justice, Yah Syokel, Dixon, Garrison, Fort, ' Hendrickson, Pitney, Swayze, Bogert, Yredenburgt-i, Yoori-iees, Yroom, Green — 13.

For affirmance — None.


source: Caselaw Access Project

author: Swayze, J.

license: Public Domain

text:
    Albert H. Stone et al., complainants and respondents, v. John Goss and the Grasselli Chemical Company, defendants and appellants.
    [Filed July 23d, 1903.]
    1. One who is under an express contract, or a contract implied from a confidential relation, not to disclose a trade secret, will be enjoined from disclosing the same.
    2. Others, who induce him to disclose the secret, knowing of his contract not to disclose it, or knowing that his disclosure is in violation of the confidence reposed in him, will be enjoined from making any use_ of the information so obtained, although they might have reached the same result independently by their own experiments or efforts.
    3. The disclosure necessarily made to the court- does not deprive the complainants of their right to an injunction.
    On appeal from a decree advised by Vice-Chancellor. Stevens.

      Mr. Charles W. Fuller, for the appellants.

      Mr. Qortlandt Parker and Mr. Chauncey G. Parker, for the respondents.
   The opinion of the court was delivered by

Swayze, J.

This is a bill for an injunction to restrain Goss from divulging a secret process of the complainants for the manufacture of depilatories (compounds used to remove hair and wool from skins and hides), and to restrain the Grasselli Chemical Company from using or divulging any information derived from Goss with reference to the secret process. The vice-chancellor advised a decree for the complainants.

Goss was in the employ of the complainants from 1892 to 1901, during which time they had, by constant experiment, made improvements in the manufacture of depilatories and had put upon the market what were called “Stone’s XXX Depilatory” and “Stone’s XXXX Depilatory.” The ingredients out of which the depilatories were made were, well known and had been in use for several years before 1892, but the depilatories manufactured had not been entirely satisfactory until the complainants succeeded in producing the XXX and XXXX.

The Grasselli Chemical Company, along with other branches of manufacture, was also engaged in the manufacture of depilatories-from the same ingredients used by the complainants, and was their chief business rival. Some time in the year 1901 the Grasselli Chemical .Companjr bought, through one of its agents, some of the complainants’ -XXX depilatory and caused a chemical analysis to be made, and thereafter conducted experiments with a view to the production of a depilatory equal in quality io the product of the complainants.

In August, 1901, Goss became dissatisfied with his position with the complainants. He had received a letter two or three months before from Atteaux, a sales agent of the defendant company in Boston. About the middle of August, Goss wrote Atteaux, and by appointment met, at Atteaux’s office, Grant, a director of the Grasselli Chemical Company. Goss fixes the date of this interview at about tire middle of August, and as he says he gave the complainants eight days’ notice that he would leave their employ, and left September 3d, he apparently gave the notice after the interview with Grant. In the second week in September ho went into the employ of the Grasselli company, in what was known as the sulphide department, which was the department concerned with the manufacture of depilatories. During the first two or three weeks he was in the employ of the Grasselli company he did no work, but immediately upon his employment Frazier, the superintendent of its plant at Tremley, questioned him “in regard to what lie knew about the manufacture of depilatories,” and Goss informed Frazier of the complainants’ method of manufacture and described fully the complainants’ apparatus. Frazier reported to the defendant company the information obtained from Goss, with a sketch of the apparatus and the manner in which it should be made and put up. This sketch was made by Frazier and corrected by Goss. The Grasselli company approved of Frazier’s plan and directed him to put up the shed to contain the apparatus. He was proceeding with this work when stopped by the injunction.

The complainants allege that Goss was under a contract with them not to reveal the secrets of manufacture. Goss denies this contract. We agree with the vice-chancellor that the contract is established by the weight of evidence.

^The right of a manufacturer, whose goods are made by an unpatented secret process, to protection by injunction against the divulging of his secret in a proper case, is now established by a well-considered line of cases in England and in several states.»

The leading case is Morison v. Moat, 9 Hare 241; 20 L. J. Eq. 513, decided by Vice-Chancellor Turner, in 1851, and affirmed in the court of appeals by Lord Cranworth. 21 L. J. Ch. 248. The principle has since been applied to cases in various aspects in the English courts. Merryweather v. Moore, 2 Ch. 518; 61 L. J. Eq. 505 (1892); Lamb v. Evans, 3 Ch. 462; 61 L. J. Eq. 681 (1892); affirmed on appeal, 62 L. J. Eq. 404.

A leading case in this country is Peabody v. Norfolk, 98 Mass. 452.

In New York, the principle is established in Tabor v. Hoffman, 118 N. Y. 30; 23 N. E. Rep. 12; Eastman v. Reichenbach, 20 N. Y. Supp. 110; National Gum Co. v. Braendly, 51 N. Y. Supp. 93; Little v. Gallus, 57 N. Y. Supp. 104; Tode v. Gross, 127 N. Y. 480; 28 N. E. Rep. 469.

In Michigan, it was adopted in a very well-considered opinion, in O. W. Thum Co. v. Tloczynski, 114 Mich. 149; 72 N. W. Rep. 140.

In Pennsylvania, Fralich v. Despar, 165 Pa. St. 24; 30 Atl. Rep. 521.

In Indiana, Westervelt v. National Paper Co., 154 Ind. 673; 57 N. E. Rep. 552.

In the federal courts, C. T. Simmons Medical Co. v. Simmons, 81 Fed. Rep. 163.

The rule has been applied in this state in the court of chancery by Chancellor Runyon, in Salomon v. Hertz, 13 Stew. Eq. 400. Salomon v. Hertz, Peabody v. Norfolk, and Thum v. Tloczynski, are the leading American cases.

These cases establish the principle that employes of one having a trade secret, who are under an express contract, or a contract implied from their confidential relation to their employer, not to disclose that secret, will be enjoined from divulging the same to the injury of their employer, whether before or after they have left his employ; and that other persons, who induce the employe to disclose the secret, knowing of his contract not to disclose the same, or knowing that his disclosure is in violation of the confidence reposed in him by his employer, will be enjoined from making any use of the information so obtained, although they might have reached the same result independently by their own experiments or efforts. We approve the principle thus established.

We find in this case, as already stated, that an express contract between the complainants and Goss for secrecy is proved. Two questions remain: (1) Did Stone possess a secret process for the manufacture of depilatories? (2) Did the Grasselli Chemical Company obtain knowledge of that secret process from Goss under such circumstances that it should be enjoined from ' making use of it ?

(1) The ingredients used in the manufacture of Stone’s depilatorics were well known and had been used for that purpose for years before the XXX and XXXX were put upon the market, and the same ingredients were used by the Grasselli Chemical Company in the manufacture of a depilatory. It is urged that the only advantage possessed by the complainants .arose out of skill in handling and not out of a secret process, and that there was no secret either in the ingredients or in the method of compounding them. The complainants combined the in-gradients by a different method from any other "in use and the result was a product of a different character. The complainants’ process of manufacture was considerably more complicated than that of the Grasselli Chemical Company. The secret consisted in a knowledge of the proper method of mixing the- ingredients and treating them in order to produce a product of proper consistency.

The difference between mere skill in manipulation and a process of manufacture is illustrated by a recent case in the United States supreme court. Carnegie Steel Co. v. Cambria Iron Co., 185 U. S. 403. In this case the process which waheld patentable consisted in retaining a quantity of molten iron in a reservoir to serve as a basis for mixing the varying products of the blast furnaces preparatory to converting the same into steel. The difficulty to be overcome was a lack of uniformity in the molten metal. The us.e of a reservoir in which the varying products of the blast furnaces had been mixed was known prior to the patent involved in that case, but the importance of always maintaining in the reservoir a sufficient quantity of molten metal to “dominate,” to use the court’s expression, the whole mass had not been before appreciated. The majority of the court held that the process was therefore patentable. There the ingredients were the same, the idea of mixing molten metal of different qualities was not new, and the only noveltj was the retention in the reservoir of a “dominant mass” sufficiently large to control the average character of the product from time to time. If such an improvement was patentable, it is clear that a process of treating the ingredients, as complicated as that involved in the present case, resulting in a product of novel character, is a process which, if kept secret, is entitled to the protection of the court. The evidence is convincing that the complainants made efforts to keep the process secret and had succeeded until Goss revealed the secret to the Grasselli Chemical Company.

Since we are satisfied that Stone had a secret process of manufacturing a depilatory and that Goss was under a contractual obligation not to disclose the secret, the complainants are clearly entitled to an injunction against Goss. The question remains whether the injunction should go also against the Grasselli Chemical Company.

(2) The evidence satisfies us that the Graselli Chemical Company knew that Stone was manufacturing a superior article to its own; that it had been for some time trying to discover Stone’s method of manufacture; that it had entered into correspondence with Goss and employed him while he was still in Stone’s service; and that, immediately upon his coming into the employ of the defendant company, it sought, through Frazier, to learn Stone’s secret and, having learned it, was about to make use of it to manufacture a similar substance by Stone’s process, to be sold in competition with his.

These facts leave no doubt that the Grasselli Chemical Company acted in fraud of Stone’s rights in the effort to learn his secret by inducing his employe to divulge the same. Even though they did not know of the contract, they must have known of the confidential character of Stone’s business and the confidential character of the relations between him and his employes. The defendant company is a party to Goss’ fraudulent disclosure of the secret and the complainants were entitled to an injunction restraining the Grasselli Chemical Company from making any use of the information thus obtained from Goss. The injunction should not be refused, because the process was such that it would probably have been discovered by independent experiments in the manipulation of the ingredients of which the products of both parties were alike composed. The Grasselli Chemical Company, by its own conduct, has put itself in such a position that it may even lose the advantage of future independent experiments. It would be quite impossible hereafter to decide how much of the improvement in the product of the Grasselli Chemical Company would be attributable to its own independent efforts and how much to the knowledge of Stone’s process fraudulently acquired by it. Every doubt must be resolved against the parties to a fraudulent act. If the defendant thereby -suffers, it suffers only by reason of having been a party to Goss’ fraudulent disclosure of the secret. The legal principle governing the case is, in effect, the same that was applied by this court to a case of fraudulent intermixture of goods. Jewett v. Dringer, 3 Stew. Eq. 291.

It was argued in behalf of the appellants that the disclosure of the complainants’ secret necessarily made during the trial would render an injunction nugatory. This difficulty was expressed by lord Eldon in an early case. Newberry v. James, 2 Meriv. 446, 451 To obviate it as far as possible, the testimony in this case was taken in camera and care was taken to print only enough copies of this portion of the evidence to supply the members of the court. It has not been found necessary in this opinion to describe the process, and we see no reason why this disclosure to the court, necessarily made for the purpose of the case, should deprive the complainants of their right to relief. The defendants were already possessed of the secret and they .cannot now take advantage of a disclosure made in order to secure relief against them. Such a disclosure is no publicátion to the world, and although it may endanger the complainants’ secret, it does not deprive them of the right to enjoin the' defendants from making use of it. The doubts felt by Lord Eldon have not prevented the courts from giving such protection as they could in the later cases cited abovej The decree should bo affirmed, with costs.

For affirmance — The Cuiee-Justice, Yan Syokel, Dixon, Garrison, Fort, Hendrickson, Pitney, Swayze, Bogert, Vredenburgii, Voorjiees, Yroom, Green — 13.

For reversal — None.


author: Per Curiam.

text:
    Richard D. Norton, complainant and respondent, v. William D. Perrine et al., defendants and appellants.
    (Filed August 19th, 1903.]

      Mr. Howard IF. 'Hayes, for the appellants.

      Mr. ’Adrian 8. Appelget, for the respondent.
   Per Curiam.

In this case the order of the court of chancery overruling the demurrer is affirmed, for the same reasons assigned in the case of Warwick v. Perrine, decided at the present term. See p. 735 ante.

For affirmance — Yan Syckel, Dixon, Garrison, Fort, Hendrickson, Swayze, Bogert, Yredenburgi-i, Yroom, Green —10.

For reversal — None.


text:
    Hiram G. Hallinger, respondent, v. Walter Zimmerman, appellant.
    [Filed August 25th, 1903.]

      Mr. John F. Earned, for the appellant.

      Messrs. Siochwell & Pierce, for the respondent.
   Per Curiam.

The order appealed from in this case is affirmed, for the reasons set forth in the opinion of Vice-Chancellor Reed, filed in the court of chancery, and reported in 18 Dick. Ch. Rep. 100.

For affirmance■ — The Chiee-Justioe, Van Syokel, Dixon, Garrison, Fort, Hendrickson, Pitney, Swayze, Bogert, Veedenburgh, Voorhees, Vroom, Green — 13.

For reversal — None.


text:
    Emil Schultz, Jr., et al., respondents, v. Howard J. Van Doren et al., appellants.
    [Filed August 25th, 1903.]

      Mr. Robert E. McCarter, for the appellants.

      Mr. Edward A. Day, for the respondents.
   Per Curiam.

The decree appealed from in this case is affirmed, for the reasons set forth in the opinion of Vice-Chancellor Pitney, filed in the court of chancery, and reported in 19 Dick. Ch. Rep. 465.

For affirmance — The Chief-Justice, Van Syokel, Dixon, Garrison, Port, Hendrickson, Pitney, Swayze, Bogert, Vredenburgi-i, Voori-iees, Vroom, Green- — 13.

For reversal — None.


text:
    Henry H. Holmes, receiver, &c., respondent, v. Theresa A. S. Sheridan, appellant.
    [Filed August 25th, 1903.]

      Mr. Charles J. Roe, for the appellant.

      Messrs. Carrick & Wortenclyke, for the respondent.
   Per Curiam.

The decree appealed from in this case is affirmed, for the reasons set forth in the opinion of Vice-Chancellor Stevens, filed in the court of chancery. See 56 Atl. Rep. 308.

For affirmance — The Chief-Justice, Van Syckel, Dixon, Garrison, Fort, Hendrickson, Pitney, Swayze, Bogert, Vredenburgi-i, Voorhees, Vroom, Green — 13.

For reversal — None.


text:
    George F. Carter, trustee, respondent, v. Mary L. K. Carter et al., appellants.
    [Filed August 25th, 1903.]

      Mr. Edward Q. Keasbey, for the appellants.

      Mr. Edward A. S. Man, for' the respondent.
   Per Curiam.

The decree appealed from in this ease is affirmed, for the reasons set forth in the opinion of Vice-Chancellor Stevenson, filed in the court of chancerj1'. See 53 Atl. Rep. 160, 163.

For affirmance — Ti-ie Chiee-Justice, Van.Syckel, Dixon, Garrison, . Fort, Hendrickson, Pitney, Swayze, Bogert, Vredenburgh, Voori-iees, Vroom, Green — 13.

For reversal — None.


text:
    Adelaide Marth, appellant, v. Henry Marth, respondent.
    [Filed August 25th, 1903.]

      Mr. Charles E. S. Simpson, for the appellant.
   Per Curiam.

The decree appealed from in this case is affirmed on the opinion filed in the court of chancery. See 56 Atl. Rep. 1132.

For affirmance — The Chief-Justice, Van Syckel, Dixon, Garrison, Fort, Hendrickson, Pitney, Swayze, Bogert, Vredenburgi-i, Voorhees, Green — 12.

For reversal — None.


text:
    Alexander Milmoe, appellant, v. William Murphy et al., respondents.
    [Filed August 25th, 1903.]

      Mr. Waller J. Knight and Mr. Thomas J. Butler, for the appellant.

      Mr. William B. Gourley, for the respondent.
   Per Curiam.

The decree appealed from in this case is affirmed, for the reasons set forth in the opinion of Vice-Chancellor Stevens, filed in the eonrt below. See 56 Atl. Rep. 292.

For affirmance — The Chief-Justice, Van Syckel, Dixon.. Garrison, Fort, Hendrickson, Pitney, Swayze, Bogert, Vredenburgh, Voorhees, Vroom, Green — 13.

For reversal — None.


text:
    In re will of John Corblis, deceased.
    [Filed August 25th, 1903.]

      Messrs. Queen & Tennanl, for the appellants.

      Mr. Charles B. 'Hughes, for the respondents.
   Per Curiam.

The decree appealed from in this case is affirmed, for tire reasons set forth in the opinion of Vice-Ordinarjr Reed, filed in the prerogative court. See 52 Atl. Rep. 996.

For affirmance — Ti-ie Chiee-Justice, Van Syckel, Dixon, Garrison, Hendrickson, Pitney, Swayze, Voori-iees, Green —9.

For reversal — Fort, Bogbrt, Yredenburgh, Yroom — 4.


text:
    Ezra C. Doty, complainant, v. Auditorium Pier Company, defendant and respondent.
    [Filed November 16th, 1903.]
    On appeal of Robert P. Wilson.

      Mr. Norman Grey, for the appellant.

      Mr. George A. Bourgeois, for the respondent.
   Per Curiam.

The decree appealed from is affirmed, for the reasons given by 'Vice-Chancellor Eeed, in his opinion filed in the court of chancery. See 56 Atl. Rep. 720.

For affirmance — The Chiee-Justice, Di¡xon, Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze, Bogert, Voorhees, Vkoom, Green, Gray — 13.

For reversal — None.


text:
    Charles C. Black, receiver, &c., complainant, v. Hobart Trust Company et al., defendants and respondents.
    [Filed November 16th, 1903.]
    On appeal of William McKenzie.

      Mr. Addison Fly, fox the appellant.

      Mr. J. Herbert Polls, for the respondents.
   Per Curiam.

The decree appealed from is affirmed, for the reasons given by Vice-Chancellor Pitney, in his opinion filed in the court of chancery, and reported in 19 Dick. Ch. Rep. 415.

For affirmance — Ti-ib Chiee-Justice, Van Syckel, Dixon, Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze., Bogert, Voorhees, Vroom, Green, Gray — 14.

For reversal — None.


text:
    John J. Perrine et al., appellants, v. Adolph Wimpfheimer et al., respondents.

      Mr. Edward M. Colie, for the appellants.

      Messrs. Couli & Howell, for the respondents.
   Per Curiam.

The decree appealed from in this ease is affirmed. Opinion rendered by Justice Van Syckel. Sec opinion of Vice-Chancellor Emery in the court of chancery, reported in 16 Dick. Ch. Rep. 126.

Note. — The opinion on the appeal was rendered June Term, 1901, but omitted from its proper place. See 50 Atl. Rep. 356.

For affirmance — Depue, Van Syckel, Garrison, Gummere, Fort, Collins, Garretson, Hendrickson, Bogert, Vreden-BURGI-I, VoORI-IEES, VüOOM, ADAMS — 13.

For reversal — None.


text:
    Charles L. Duvale, complainant, v. Celine M. Duvale, defendant.
    1. If a wife by words and blows, provokéd her husband to counter verbal and physical abuse, which abuse was not disproportioned to the provocation, she cannot get a divorce on the ground of his extreme cruelty.
    2. The mental condition of the wife will not remove the case from this rule, if it is not such as to deprive her of power to desist from her provoking conduct.
    Opinion by Vice-Chancellor Eeed, reported in 34 Atl. Rep. 888.

   Per Curiam.

Decree affirmed for the reasons stated by the Vice-Chancellor.

Note. — The report of this ease in 10 Dick. Ch. Rep. 589 is an error, so far as respects the reference to 9 Dick. Ch. Rep. 581. The decree in 9 Dick. Ch. Rep. 581 was modified on appeal, as reported in 11 Dick. Ch. Rep. 375.


text:
    Enoch C. Merritt, respondent, v. Patrick J. Jordan, appellant.
    [Filed November 18th, 1903.]
    • 1. The object of an exception to a master’s report is to specify the objections which the exceptant makes either to the whole report or to particular parts thereof named in the exceptions, with, some statement of the grounds on which each exception is based. Exceptions to the whole report which state no reasons for criticism, specify no items of which complaint is made, and mention no particulars wherein the master is alleged to have erred, cannot be entertained.
    2. Written evidence noticed to be produced should be presented at the hearing at the time it is called for by the noticing party. A refusal then to produce is a ground of objection to the admission of the same writing, after secondary evidence of its contents has been offered because of such refusal, if the party who withheld it should then offer it.
    The order appealed from is affirmed, for the reasons given by Vice-Chancellor Grey in his opinion filed in the court of chancery, as follows:
    The bill in this case is filed by the complainant for an accounting and compensation for services rendered by him to the defendant as salesman and collector.
    The pleadings in the cause admit the relationship .of the parties, the contracts for complainant’s services, and the nature of the compensation. The answer insists that the defendant has counter claims sufficient to overcome any compensation to which the complainant might be entitled.
    The admitted circumstances of' the case justified an order for an accounting. An order of reference was made to Philip S. Scovel, Esquire, one of the special masters of this court, to state an account between the parties concerning the several matters and -recited and referred to in the pleadings, giving each party such credit as under the proofs submitted to said master he might be entitled to hare, and debiting each with such contrary charges as might be properly allowable, and ascertaining and reporting to this court the balance by said master found to be due from either of said parties to the other.
    The master called the parties before him, examined the wit- . nesses and documentary proofs produced and has made his report, ascertaining that there is a balance due the complainant of $1,119.33. To this report the defendant files the following-exceptions:

      First exception. — To that part of the report which says there is a balance due complainant of $1,119.33.

      Second exception. — -To that part of the report which makes allowance on first agreement.

      Third exception. — To that part of the report which makes allowance under the second agreement.

      Fourth exception. — To that part of the report which makes allowance under the third agreement, as to commissions and salary.

      Fifth exception. — To that part of the report as to errors made by complainant.

      Sixth exception.- — To all and every part of said report.
    The object of an exception to a master’s report is to specify the objections which the exceptant makes, either to the whole report or to specified parts thereof, with some statement of the grounds on which the exception is based. Exceptions which state no reason for criticism of the whole report, specify no items of which the exceptant complains, and no particulars wherein the master is alleged to have erred, cannot be entertained. Holcomb v. Holcomb, 3 Stock. 282.

    All of the exceptions to this master’s report taken by the defendant in this cause are of the most general character. None of them states any reasons or ground of criticism of the master’s action.
    ■ Chancellor Williamson, in the case above cited, declared that the exceptant “cannot by a general exception impose the burden upon the court of examining every item in the account to detect the error.”

      The defendant’s exceptions, for the reasons stated, must be overruled.
    The complainant also excepts to certain specific items of the master’s report 'as follows:

      First exception.- — To all that part of the said report where the said master reports as follows, to wit:
    ■ “I find and report that the defendant is entitled to the following named credits against the above-named account of the complainant, viz.:
    “Item 1. For cash received by the complainant and not paid over to the defendant, $801.19, less $152.10, leaving still due to the defendant, $649.09.
    “Item 2. By merchandise consigned to the complainant by the defendant and not accounted for by the complainant, $842.16. Total, $1,491.25.”
    And the said complainant insists that there was no legal evidence produced before the said master to sustain these two items of charge against the said complainant. Wherefore the said master aforesaid has not reported properly and in accordance with the order of this court, referring the same to him, and with the principles of law and equity.
    Upon examining the evidence produced before the master it appears that the defendant, Jordan, was the proprietor of a furniture store and sold goods payable by installments. The complainant was employed by the defendant under several successive contracts as salesman and also as collector. It was the practice, recognized and followed by the complainant as well as by the defendant, to keep memoranda of these sales and collections. These memoranda scarcely arise to the dignity of' bookkeeping, as they are extremely crude and imperfect, but they are the only data by which the actual state of the account between the complainant and the defendant can be ascertained, and they are appealed to by both parties as effectual for that purpose. They are in considerable part made by the complainant himself, or under his direction, and if they are to be appealed to for the purpose of affording evidence of shipments of goods on sales made by the complainant and of collections by him of which he is entitled to commissions, they should be equally admissible to show that goods shipped to complainant were not -paid for,, and that money proceeds of sales of defendant’s goods received by complainant were not by him paid to the defendant.
    These items of debit against the complainant’s credits for commissions are not wholly dependent upon the book-entries, which are challenged by the complainant. There is other testimony by several witnesses, notably that of the defendant himself, which shows that collections made by the complainant were not returned to the complainant, and that goods shipped to complainant were not paid for, and this situation of affairs is in substance admitted by the complainant. It would therefore be inequitable to reject books used by the complainant to sustain his case when produced to show the defendant’s counter claim.
    It is claimed on the part of the complainant that the defendant’s books were withheld from examination before the master, though notified to be produced and called for on the part of the complainant, so that the complainant was obliged to offer secondary proof and that the subsequent offer of the defendant’s books should have been rejected.
    The written evidence noticed to be produced should be presented when called for by the party noticing, and a refusal so to produce is a ground of objection to its production after secondary evidence has been put in because of such refusal. But in this case the call by complainant was to produce the books to show the quantity of goods sold and moneys collected bjr the complainant on which he claimed commissions. It was of these items that secondary proof was made. The subsequent production by the defendant (so far as it is challenged by the exceptions) was not for the purpose of showing less or different sales or collections, but for the purpose of sustaining the defendant’s counter claim that moneys are due him for goods shipped to complainant and for money collected but not returned.
    The case is exceptional in the difficulties which impede the way to an accurate statement of the account. The items on the books are numbered by thousands. They run in value from twenty cents to fifty dollars. The complainant has appealed to the defendant’s books to sustain his claims to commissions and thus accredits them as to the other items showing goods shipped to complainant and not accounted for by him and cash received by him not returned to the defendant.
    The complainant’s exceptions should be overruled and an order be made ratifying and confirming the master’s report.
    As neither party has been successful in'sustaining the exceptions taken by him, no costs will be allowed on either set of exceptions.

      Mr. Samuel M. Roberts, for the complainant.

      Mr. Frederick A. Rex, for the defendant.
   Per Curiam.

Only those questions presented by the appellant’s petition of appeal have been considered by us. No appeal having been taken by the respondent, the alleged errors in the decree, which, as he argues in his brief, were prejudical to him, are not before us for review. The fact that, in his answer to the appellant’s petition of appeal, the respondent has declared himself to be aggrieved by these alleged errors, does not justify this court in-taking cognizance of them. A party who, considering himself aggrieved by a decree of the court of chancery or any portion thereof, desires to have that decree reviewed by this court must regularly take out and prosecute his appeal in the manner provided by the rules of this court and the court of chancery.

For affirmance — Ti-ie Ci-iiee-Justice, Dixon, Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze, Bogert, Yoorhees, Yroom, Green, Gray — 13.

For reversal — -None.


text:
    Adam Eckert et al., petitioners and respondents, v. Perth Amboy and Woodbridge Railroad Company, appellant.
    1. It is not necessary that the extra hazardous condition existing at a crossing shall have been caused by the railroad company to justify the court of chancery in making the decree authorized by the act entitled “An act for the protection of railroad crossings,” approved March 16th, 1898. It is only necessary that conditions exist at a crossing at the time the petition is filed by the governing body of a municipality under said act which make it reasonable and necessary for the security of human life or the protection of the public, that gates or bars, or other reasonable provision for protecting such crossing shall be erected and maintained.
    2. The act of March 16th, 1898, is not unconstitutional under article 3 of the state constitution. It does not confer upon the judiciary powers which belong exclusively to the legislative department of the government.
    On appeal from an order advised by Yice-Chancellor Pitney.

      Mr. Alan II. Slrong, for the appellant.

      Mr. Charles C. Ilommann, for the respondents.
   Order affirmed on appeal. (See 57 Atl. Rep. 438.)

For affirmance — The Chief-Justice, Dixon, Garrison, Port, Garretson, Hendrickson, Pitney, Swayze, Bogert, Yredenburgh, Yoorhees, Yroom, Green — 13.

For reversal — None.


text:
    William W. Varrick, administrator, &c., complainant and respondent, v. Adrian Hitt, defendant and appellant.
    [Filed November 25th, 1903.]
    On preliminary motion.

      Mr. Isaac S. Taylor and Mr. James B. Yredenburgh, for the respondent.

      Mr. Robert L. Lawrence and Mr. Andrew Gilhooly (of the New York bar), for the appellant.
   Per Curiam.

Where a case has been argued in this court, and the reasons why the decree is made or the judgment is entered have been submitted to us in the shape of an opinion of the lower court (pursuant to the constitutional requirement) and a re-argument of the whole case, or any portion thereof, is afterward ordered by this court, a supplemental opinion of the lower court, formulated after the re-argument has been ordered, containing additional reasons- for the making of such decree or the entering of such judgment, constitutes no part of the case before us, unless sent up in pursuance of the request of this court.

For affirmance — Tile Chief-Jus tice, Dixon, Garrison, Fort, Hendrickson, Pitney, Swayze, Bogert, Yredenburgh, Yroom, Green, Gray — 12.

For reversal — None.


author: Magie, Chancellor.

text:
    William K. Angle v. David C. Angle.
    [ Filed February 23d, 1904.]
    Land was devised to David C. Angle for life, with remainder to his children and heirs-at-law. It was charged with the annual payment to William T. Angle of the interest upon $1,000, at the rate of five per cent, per annum, during his natural life, and with the payment of $1,000 to his heirs-at-law at his death. — Held, that David, the life tenant of the land, was not entitled to deduct from the annual payments to William the taxes imposed upon $1,000 of the assessed value of the land.

      On bill for a legacy under a clause in the will of Joseph G. Angle, which is in the following words :
    “After tlie death of my said wife, Rachel G-. Angle, I give and bequeath unto ray son David 0. Angle the farm where he now resides for him to use and occupy during the term of his natural life. I do further direct that my said son David 0. Angle,- after the death of my wife, Rachel Angle, pay annually unto my son William T. Angle the interest upon one thousand dollars at the rate of five per centum per annum during the natural life of my said son William T. Angle, and upon the death of the said William T. Angle, I do direct that my said son David C. Angle do pay unto the heirs-at-law of said William T. Angle the sum of one thousand dollars, share and share alike. And I do further direct that upon the death of my son David C. Angle, X do give and bequeath the said farm unto the children and heirs-at-law of the said David 0. Angle, in equal shares, subject however to the payments above specified to William T. Angle and his heirs.”

      Mr. Charles J. Roe, fox tlie complainant.

      Mr. George A. Angle, fox tlie defendant.
   Magie, Chancellor.

The cause has been brought to hearing upon bill and answer. The sole question presented by the argument of counsel is whether William T. Angle is entitled to the annual sum of $50, to be paid him by David C. Angle under the clause of the will contained in the statement prefacing this opinion, or whether David C. Angle may deduct from that sum the annual taxes assessed upon him as the holder of $1,000 to be paid to the heirs-at-law of William T. Angle upon the death of the latter.

It is obvious that the legacies to- William T. Angle and his heirs-at-law, contained in the clause of the will in question, are not payable out of the personal estate of the deceased; They are legacies the payment of which is imposed by the testator upon the devisees of land, and are chargeable, not upon the personal estate, but upon the real estate thus devised. Van Winkle v. Van Houten, 2 Gr. 185, 186; Woodward v. Woodward, 1 Stew. Eq. 119; Horning v. Wiederspalen, 1 Stew. Eq. 387; Wyckoff v. Wyckoff, 3 Dick. Ch. Rep. 113; S. C., 4 Dick. Ch. Rep. 344; Trustees v. Wilkinson, 9 Stew. Eq. 141; S. C., 11 Stew. Eq. 514.

Jurisdiction to entertain bills for the payment of legacies and to make appropriate decrees thereon has been recognized from the earliest times as existing in the court of chancery. Legislation which has conferred on courts of law jurisdiction to entertain actions for legacies has not deprived this court of its jurisdiction. So far as the jurisdiction conferred on courts of law is applicable, it is cumulative and concurrent. King v. Berry, 2 Gr. Ch. 44; Frey v. Demarest, 1 C. E. Gr. 236.

The case here seems not to fall within the jurisdiction of the law courts. That jurisdiction is now conferred by the act entitled “An act concerning legacies” (Revision), approved March 27th, 1874 (Gen. Stat. p. 1938), and it is to be asserted by an action at law against the executor. Obviously, this action can only be resorted to where the executor is bound to pay a legacy. Here, although David 0. Angle is one of the executors, it is quite obvious that he could not be sued as an executor, because the legacy in question is not payable out of the assets in the hands of the executors. It is payable by David 0. Angle personally, as a condition of his acquiring his title by devise to the real estate on which the legacy is charged. The matter must therefore be considered in this court.

The facts appearing by the pleadings disclose that Rachel Angle, the widow of the testator, died in September, 1897, and thereupon William T. Angle became' entitled to the bequest contained in the clause of the will in question. In March, 1898, the defendant paid to William T. Angle, and the latter receipted for, the interest, calculated to April, 1898. Thereupon the defendant was notified to pay the annual interest thereafter to the complainant, to whom William T. Angle had assigned all his interest. An assignee of a legacy may sustain a bill therefor, and when all the legatee’s interest is assigned the assignor is not a necessary party. King v. Berry, ubi supra.

In every year since April, 1898, defendant has claimed a deduction from the assessment of said farm, for taxation, for the $1,000, the subject of the legacy in question, and such deduction has been allowed in each year. Eor the year ending in April, 1899, the $1,000 was assessed to William T. Angle ancl the tax afterward paid by him. In the year ending April, 1900, the $1,000 was deducted from the valuation of the farm and assessed to David C. Angle, executor of Joseph G. Angle and trustee for William T. Angle. In April, 1900, defendant paid the tax, amounting to $11, and sent the tax receipt and his own check for $39 to the complainant, who received the same and drew the money on the check. In the’ succeeding years ending in April, 1901, 1902 and 1903, there was a like assessment of the $1,000 and the tax thereon was paid by defendant, and in each year the tax receipt, with defendant’s check for an amount making up the $50, was sent to complainant.

In April, 1903, the three checks sent complainant in 1901, 1902 and 1903 were returned to the defendant, and complainant demanded the full' sum of $50 for each of the above-named jrears. Whether he was entitled to be paid the whole of that sum is the question presented, and it involves the right to deduct the sum of $30.45 from what is concededly due him.

The contention is that the case falls within the doctrine of Holcombe v. Holcombe, 12 C. E. Gr. 473; S. C., 2 Stew. Eq. 597, in which it was held, both in this court and in the court of errors and appeals, that there is a duty upon the life tenant to keep down the taxes upon a fund invested by executors by direction of a will, the interest of which is payable annually to him for life. The doctrine of that case was inconsistent with numerous previous cases upon the liability to pay taxes assessed against the fund by the person enjoying the interest thereof for life, as was pointed out in Dilts v. Taylor, 28 Vr. 369. In the opinion delivered by Mr. Justice Van Syckel in the court of errors and appeals in the Holcombe Case, the reason for the doctrine is thus stated: “So long as the life tenant enjoys the entire produce of the fund she should be required to keep down the taxes upon it, otherwise the fund itself must become impaired and the entire burden thrown upon those who take the fund at her death.’''' The liability of a tenant for life of land to keep down the taxes has been held in this court to be limited to the rental value of the land. Murch v. Smith Man. Co., 2 Dick. Ch. Rep. 193. In Tuttle's Case, 4 Dick. Ch. Rep. 259, Ordinary McGill intimated that a like limitation would be applied to the income of an invested fund.

But the doctrine thus established does not seem applicable to the case in hand. The testator did not require the devisees of the land in question to create a fund to be invested, the income of which was to be paid to William T. Angle for his life. On the contrary, his bequest to William was of a sum specified, to be annually paid, and fixed, because calculated at an annual percentage. That percentage is. less than the legal rate of interest, and presumably less than the income on an invested fund would be. The bequest is not of a life interest in the produce of a fund, but rather of an annuity for life. 3 Pom. Eq. Jur. 1134.

Nor can I find any legislative provision justifying the deduction of the value of this $1,000 from the value of the farm on which it is charged. It is not a mortgage on real property., or a debt secured by mortgage, which may be assessed for taxation if a deduction thereof is claimed by the owner, under the provisions of the act of March 28th, 1893. Gen. Stat. p. 3319.

Uor was this farm, on which these legacies are charged, within the provisions of the supplement to the Tax act, approved March 2d, 188,3.

The farm was entailed property and the tenant for life, who is the defendant in this case, was bound to pay the taxes out of the income of the property. But the $1,000 charged upon the farm for the payment of a legacy to the heirs-at-law of William T. Angle at his death was in no sense entailed property, nor was it property held in trust or held for life, so that the taxes could be assessed thereon and paid out of the income or by the person having the present beneficial interest therein. So far as William T. Angle is concerned, he has no present beneficial interest in any fund whatever. He is entitled to a fixed sum, calculated at a fixed rate of interest, and the fund is not chargeable therewith, but the farm. is.

It results that, in my judgment, the taxes were improperly' charged against the complainant, and he is entitled to a decree for the annual unpaid sums and that they be made charges upon the devised lands. He is not entitled to any interest upon the deferred annual payments, because he retained the checks and the tax receipts without notice to the defendant, so as to leave him under the belief that complainant had accepted the payments in full.


text:
    In the matter of the alleged lunacy of Elizabeth Agnes Comfort.
    [Filed February 23d, 1904.]
    1. When, upon an application for leave to traverse an inquisition of lunacy, an issue is directed to be tried at law, a motion for a new trial of the issue is to be made before the chancellor, and not in the supreme court.
    2. Upon the trial of an issue directed to try whether E. A. C. was and is of unsound mind, so that she is not capable of the government of herself, her lands, &c., the evidence was restricted by a stipulation of counsel to the period covered by the inquisition. — Held, that there should be a retrial.

      ■Mr. Janies Parker, for .the alleged lunatic.

      ■Mr. Eusebius W. Arrow smith, for the petitioner.
   Magie, Chancellor.

By an inquisition under a commission from this court Elizabeth Agnes Comfort was found to be of unsound mind. She applied and was permitted to traverse the inquisition. The issue made up thereon was sent from the supreme court to the circuit court of Middlesex county, and the pos Lea returned therefrom and certified to this court discloses that the jury found her to be of unsound mind.

A motion is now made for a decree confirming the proceedings and directing the clerk to transmit to the orphans court of the county in which Mrs. Comfort resides a certified copy of all the proceedings, pursuant to the statute.

The counsel for Mrs. Comfort resists this motion, and moves this court for a new trial, on the ground of alleged errors of law committed by the trial judge, and on the ground that the verdict was contrary to the weight of evidence.

Counsel for the person prosecuting this -inquiry first objects to the consideration of the motion for a new trial, contending that such a motion is to be made, not to this court, but to the supreme court, in which the issue was tried.

The proceedings of this court in cases of idiocy and lunacy, and upon a commission returned in such cases, are required to be “as heretofore practiced.” Such was the language of the act of February 28th, 1820 (Rev. p. 696); the act of April 16th, 1846 (Rev. Stat. p. 552), and the act of March 27th, 1874. Gen. Stat. p. 1696.

The practice referred to is doubtless that which Existed in the court of chancery of England, as adopted by the chancellors of Eew Jersey.

Before the act of 2 & 3 Edw. VI. c. 8, the English chancellors held that an application for a traverse upon an inquisition of lunacy was addressed to their discretion. After the passage of that act they held, after some contrary views had been expressed, that the traverse of such an inquisition was a matter of right and must be granted to- the alleged lunatic if his application therefor was shown to be the act of the free will of a person capable of forming and expressing such volition. Shelf. Lun. *118; Lindsley’s Case, 1 Dick. Ch. Rep. 364.

It is not open to doubt that where an inquisition of lunacy was traversed in England a motion for a new trial of the issue was made, not in the court of chancery, but in the court of king’s bench. In this respect it was analogous to those proceedings within the ordinary jurisdiction of the court of chaneery, administered in what was called the Petty-bag office, and in which the chancellor was bound to observe the order and method of the common law (Toml. L. Dict., tit. “Chancery;” Toml. L. Dict., tit. “Petty-bag;" Ex parte Barker, 1 Cox C. C. 418; Shelf. Lun. *123), and the distinction was made between applications for a new trial of a traverse and applications for a new trial of an issue directed out of the court of chancery. In the former it was held that the application should be made in the king’s bench, and in the latter that application should be made in the court of chancery. Ex parte Kensington, Coop. C. C. 96; Bowker v. Nixon, 6 Taunt. 444; Carstairs v. Stein, 4 Mau. & Sel. 192; 1 Coll. Lun. 163.

This practice, so far as it relates to application for a new trial upon a traverse of an inquisition of lunacy, was continued in England until the passage of the act of parliament of C Geo. IV. c. 58 § S, whereby the power was given to the chancellor, when dissatisfied with any verdict returned upon a traverse, to direct one or more new trial or trials, as usual in cases of issues directed by the court of chancery.

Where issues are directed by this court to be tried at law, it is well settled that the postea must be returned to this court, and á motion for a new trial should be made here. Trenton Banking Company v. Rossell, 1 Gr. Ch. 492. And this practice was deemed to be applicable to issues at law directed by the court under the provisions of the act to quiet title. Powell v. Mayo, 11 C. E. Gr. 120. Issues thus directed in equity cases are said to be resorted to for the purpose of informing the conscience of the court, but it is well settled that the chancellor is not bound by the results, but must decide each case according to the dictates of his own judgment. Black v. Lamb, 1 Beas. 108; Black v. Shreve, 2 Beas. 455; Newark v. New York Railroad Co., 8 C. E. Gr. 515.

If our proceeding by way of traverse is necessarily or in fact a traverse of the nature which, by the act of Edw. VI., was given as a right, it would seem that under the practice of the English chancellors, before the act of Geo. IV. (both above cited), the application for a new trial of the issue joined thereon should have been made in the supreme court. Such was my impression upon the first argument of this matter. But I have been led to a different conclusion upon a subsequent examination, and for the following reasons:

It has been held in this court, and in the court of errors and appeals, that the act of Edw. VI. has not been adopted in the practice of this court, and that an application to traverse an inquisition of lunacy is addressed to the discretion of the chancellor, and not to be granted as a matter of right. Covenhoven’s Case, Sax. 19; Van Auken’s Case, 2 Stock. 186; James’ Case, 9 Stew. Eq. 547; Lindsley’s Case, 1 Dick. Ch. Rep. 358; De Hart v. Condit, 6 Dick. Ch. Rep. 611; Davenport’s Case, 18 Dick. Ch. Rep. 343.

In James’ Case, ubi supra, Chief-Justice Beasley, speaking for the court of errors and appeals, in reversing an order of the chancellor denying a motion to set aside an inquisition, declared that the cause should be remitted to chancery with instructions to allow the alleged lunatic to traverse the inquisition, or that an issue should be directed. This recognized the right of the chancellor to direct an issue at law in such cases, and if such an issue is directed a new trial thereof should be applied for in this court.

An examination of the order made in this case clearly indicates that an issue was directed to determine “whether the said Elizabeth Agnes Comfort was and is of unsound mind so that she is not capable of the government of herself, her lands,” &c., and such an issue was made up in the pleadings in the-supreme court. A traverse in England was a summary proceeding, setting out the inquisition and traversing or denying the facts thereby found, and the issue joined thereon was by the attorney-general for the crown. Shelf. Lun. *115.

The result is that, contrary to my first view, I conclude that the issue tried in this cause was an issue at law directed by this court, and that the application for a new trial is properly made here.

The conclusion thus reached has compelled the examination of the whole course of the trial of the issue in the supreme court and the grounds presented for a new trial.

My examination of the case has not disclosed any errors committed by the learned justice who tried the issue, either in the admission or the rejection of evidence or in his charge to the jury, which contained a succinct, but lucid and correct, exposition of the law bearing thereon.

It was strongly contended by counsel for Mrs. Comfort that the verdict was against the weight of the evidence. I do not deem it necessary to analyze the evidence which, in respect to unsoundness of mind, is open to question, for I feel compelled to direct a retrial of the issue upon a ground not adverted to by counsel, but which appears in the case and cannot be passed over. The issue directed to be -tried was “whether the said Elizabeth Agnes Comfort was and is of unsound mind so that she is not capable of the government of herself, her lands,” &e. Shortly after the evidence was opened the counsel of the petitioner and of the alleged lunatic entered into a stipulation, in open court, which was taken,upon the stenographer’s notes, to the effect that the evidence should be confined to the period covered by the finding of the inquisition, and the status of Mrs Comfort during that period.

The learned justice called the attention of counsel to the fact that such a course would not dispose of the issue directed to be tried. Counsel, however, seemed to consider that what was presented was a mere traverse of the inquisition, and not an issue specially directed. The court accordingly felt compelled to hold counsel to their stipulation, and the result was that the case was tried upon a wrong theory.

Ordinarily such a course of conduct by counsel might be held to bind those they represent. But this is not an ordinary case: My decree on this verdict must necessarily result in the appointment of a guardian of the person and property of Mrs. Comfort. I am unwilling to make a .decree on a verdict thus' reached, although the course pursued was with the assent of her counsel. Nor do I think I should be deterred from directing a new trial by the fact that the evidence furnishes some indication that the condition of Mrs. Comfort at the time of the trial remained as it was during the period to which the evidence was confined, for it is clear that such indications arise alone from inferences drawn from the circumscribed evidence. I add, further, that I am unwilling to sanction a practice which might, in some cases, result in the injustice of a decree after the subject had recovered and become of sound mind.


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    John I. Weller et al. v. The Jersey City, Hoboken and Paterson Street Railway Company.
    [Filed April 12th, 1904.]
    A bill filed by complainants, attorneys of this state, against a defendant, a street railway company, set forth that one John Meffert had been injured by the tort of the defendant and had a right of action against it for damages for his injuries; that he had retained complainants to settle with said company or to- prosecute an action for him for said damages; that in consideration of their services to be performed he had assigned to complainants fifty per cent, of whatever might be recovered by suit, settlement or otherwise; that complainants gave notice to said company of such assignment, and thereafter commenced an action in behalf of John Meffert against it; that, pending the action, the company settled with Meffert for a sum of money, the amount of which complainants had not discovered, and paid the agreed-on amount and received from Meffert a complete release of his claim. It thereupon prayed for a discovery, for an accounting of the money so paid, and for a decree for the payment by defendant to complainants of fifty per cent, thereof. On demurrer to the bill for want of equity — Held, that the bill stated no grounds on which the relief prayed could be decreed.
    On demurrer to bill.

      The bill of complaint was filed by John I. Weller and Julius Lichtenstein as partners. It alleges that both complainants are licensed attorneys-at-law, and that John I. Weller is a licensed counsellor-at-law of this state.
    The bill states that in November, 1902, John Meifert, while a passenger on one of the cars of the defendant company, was injured by its negligence, whereby a cause of action accrued to him to recover damages for such injuries.
    It further states that in said month said Meffert retained complainants, in writing, to settle, with said company, or to commence an action for him against said company for said, damages; that said Meffert had aro money to pay complaiaaants for their services in the actioaa or the costs of the suit, and therefore, by said writing, in consideration of the services to be performed by the complainants, and for other consideration, agreed to pay complainants fifty per centum of whatever might be recovered from said company, by suit, settlement or otherwise, for said injuries, and sold, assigned arad transferred unto the complainants fifty per centum of all that anight be recovered by suit, settlement or otherwise, for said injuries, aaad that Meffert thereby also agreed aaot to settle his said claim with said company nor to discontinue any actioaa which complaiaaants might coaaameaace against said compaaay.
    The bill further states that on December 17th, 1902, they commenced an actioaa iaa the supreaaae court, in the name of said Meffert, against said company, to recover $5,000 damages for said iaa juries, and afterward filed a declaration in the cause and noticed the same for trial.
    The bill further states that on December 12th, 1902, they caused to be served upon the president of the said company a ,notice, iaa writing, that complainaaats had beeaa retained by Meffert to prosecute his actioaa against the company for said injuries, aaad the notice also informed the company that said Meffert had agreed with complainants aaot to settle or release his claim agaiaast the compaaay, aaad that the complainaaats claimed ara interest iaa whatever moaaeys might then be due, or might thereafter become due or be paid to said Meffert, or be recovered by him for said injuries, by reason of an assignment made by him to complainants.
    The bill further states that on or about March 1st, 1903, said company adjusted and settled the claim and cause of action said Meffert had against it by paying him a sum of monejr, the amount of which complainants assert they have no means of knowing, and that complainants are informed and believe that said Meffert signed and delivered to said company a release, under seal, releasing said company from all action and damages by reason of the injuries received by him, as set forth in the bill.
    The bill thereupon alleges that when said company settled said claim a trust of the proportion of the money so assigned to complainants resulted in their favor, and the said company became the trustee of complainants for fifty per cent, of the mone3r for which said Meffert’s claim was adjusted and settled.
    The bill further charges that said Meffert is financially irresponsible and possesses no property from which a judgment recovered against him for a breach of his contract with complainants could be collected.
    The bill further charges that one Christian Branger and one Harry S. Yan Yalen had similar claims against said company and retained complainants by a retainer and assignment in writing such as was asserted to have been made between Meffert and complainants, of which retainer and assignment the Compaq received written notice, and that said company, notwithstanding such notice, compromised and settled the respective claims of said Branger and Yan Yalen and took releases from them therefor. It is asserted that Branger and Yan Yalen are both of them financially irresponsible, and it is- charged that the company thereby became a trustee for complainants and liable to account to them for one-half of the sums respectively paid to Branger and Yan Yalen.
    Upon these statements the prayers of the bill are for an answer without oath and for discovery of the amount paid in the respective settlements of the claims set out in the bill, and that the defendant company shall account to the complainants for the money respectively paid by it to the three persons above named, in consideration of the settlement of their respective claims, and that said company may be decreed to pay to complainants a sum equal to one-half of the moneys paid upon said compromises and settlements, respectively.
    Process is prayed against the said company only.
    To this bill defendant demurs, on the ground of want of equity.

      Mr. John I. Weller, for the complainants.

      Mr. William B. Gourley, for the defendant.
   Magie, Chancellor.

The demurrer to this bill is supported upon the sole ground of a want of equity. It is not contended that the bill is defective in failing to bring before the court the different persons who it alleges had valid claims upon the defendant company, which were assigned to the complainants and form the basis of their claim. For has there been any contention that the bill is multifarious in that it has sought relief upon three several, distinct and unconnected claims.

The sole contention of the complainants in support of the bill is that by the written retainers and assignments of persons having claims against the defendant company for personal injuries, and by timely notice thereof to the company, complainants became, in equitjr, assignees of the proportionate parts of any sums which such injured persons should thereafter receive from the defendant company, either by a composition between them or by a recovery and judgment in actions at law, and that a trust thereupon arose, binding tire defendant company and making it accountable in equity to the complainants for their proportionate parts thereof.

There is no attempt to support the bill in respect to any part of complainants’ claims on the ground of what has been incorrectly styled the attorney’s 'lien, and it is obvious that such a contention would have been unavailable, because it is well settled that such lien arises only after judgment recovered or after the proceeds of a compromise or settlement have come to the actual possession of the attorney. Jones on Liens 140, 149; Terney v. Wilson, 16 Vr. 282; Phillips v. Mackay, 25 Vr. 319; Barnes v. Taylor, 3 Stew. Eq. 467; Middlesex Freeholders v. State Bank, 11 Stew. Eq. 36.

The sole question, therefore, is (and it seems to be one of first impression in this state) whether when an attorney, retained by a person injured by the tort of another, has procured from the injured person an assignment of a proportion of the damages which may be recovered by action or judgment, or received by compromise or settlement, and has given notice of such assignment to tire tort-feasor, there is raised thereby an obligation on the part of the tort-feasor to account to the attorney, as such assignee, for the proportion of a sum which the tort-feasor has paid to the injured person as compensation for the injury and as satisfaction therefor agreed upon between them, and which obligation can be enforced by the decree of a court of equity.

It is observable that the bill does not disclose, any contract on the part of complainants with the persons from whom they procured these assignments, other than such as may be implied from complainants’ acceptance of their respective retainers as attorneys. Such acceptance of retainers would bind the attorneys, no doubt, to perform their duties of .office in bringing and prosecuting actions at law and in incurring liability for the ordinary costs and expenses thereof. But there is no statement that the attorneys bound themselves to incur expenses not ordinary, such as, e. g., are required in seeking evidence, in procuring the attendance of witnesses at the trial, &c., which, commonly, the client incurs and pays for. It does not appear that the attorneys agreed to incur such expenses and to relieve their clients therefrom, and it may be open to question whether there is disclosed a consideration which will support such» assignments or relievo them from being treated as unconscionable. But the question was not raised in the argument and need noi be considered.

The insistment of complainants is that such assignments, in the present state of our laws, fall within the jurisdiction of the court of chancery as equitable assignments.

The doctrine of equitable assignment was the growth of the administration of equitable principles in the English court of chancery in its effort to mitigate the rigor of the common law, which originally pronounced all assignments of choses in action to be invalid and incapable of enforcement by action in courts of law. The jurisdiction thus assumed extended not only over assignments of debts and demands arising out of contracts, but also over assignments of possibilities, expectancies or contingencies, and the rationale of the doctrine as to the latter seems to have been, as stated by Mr. Pomeroy, that the assignee of an expectancy, possibility or contingency acquired thereby a present equitable right, which became an equitable property right over the proceeds of such expectancj', possibility or contingency as soon as they came into existence as an interest in possession. 3 Pom. Eq. Jur. § 1271; Spenc. Eq. Jur. 852; Bisp. Pr. Eq. 214. It seems to follow that such assignments only become operative and effective when the proceeds of such assigned possibilities, expectancies or contingencies have actually come into existence or possession. The doctrine has been constantly recognized and applied in this court. Bacon v. Bonham, 6 Stew. Eq. 614.

But there was one class of possibilities of the assignments of which the English court of chancery declined to take jurisdiction, and the class included the possibility of recovering damages for a tort. The reason frequently assigned for such refusal of jurisdiction was that such assignments tended to induce or promote litigation, and so violated the policy of their laws against champerty and maintenance. 8 Pom. Eq. Jur. § 1275.

If it be inferred from the statement of the bill that complainants’ clients agreed that their attorneys, if successful in their respective suits for damages, should be entitled to a part of the moneys recovered, such an agreement would, under English law, have been champertous. But it was held in our supreme court, in a learned and exhaustive opinion of the late Chief-Justice Beasley, that the law of maintenance and champerty has never prevailed in this state, and the opinion has been reiterated in that court and approved in the court of errors and appeals. Schomp v. Schenck, 11 Vr. 195; Terney v. Wilson, 16 Vr. 282; Bouvier v. Baltimore and New York Railway Co., 38 Vr. 291. The reason of the English court of chancery for refusing jurisdiction of such assignments arising out of the doctrine of champerty and maintenance, is not therefore applicable in this court. The supreme court, in dealing with a judgment in that court upon equitable principles, recognized this view. Terney v. Wilson, ubi supra.

Mr. Pomeroy declares, as the result of his examination of the cases, that the criterion usually adopted in determining whether a chose in action may be assigned, so that the assignee may invoke the jurisdiction of a court of equity, is this. He says:

“All things in action which survive and pass to the personal representatives of a decedent creditor as assets, or continue as liabilities against the representatives of a decedent debtor, are in general thus assignable; all which do not thus survive, but which die with the person of the creditor or of the debtor, are not assignable.”

And he explains that in the second class are included all torts to the person where the injury and damages are confined to the body and the feelings. 3 Pom. Eq. Jur. § 1215.

I do not find it easy to understand why the capacity of a chose in action to survive to and be enforceable by the claimant’s representatives affords a rational test of the justifiable jurisdiction of a court of equity, at least in a ease where the assignor is yet alive. But assuming this test to be correct in its classification of choses assignable or non-assignable in equity, it would seem not to be applicable under our legislation. Since the passage of the supplement to the “Act respecting the abatement of suits,” which supplement was approved March 17th, 1855 (P. L. of 1855 p. 40), the provisions of which supplement were afterward transferred to the “Act concerning executors and the administration of intestates’ estates” (Revision), approved March 27th, 1874 (Gen. Slat. p. 1425), and now appear as sections 4 and 5 of the last-named act, it has been settled that a right of action for a personal injury survives to the'executors and administrators of the injured person, and, by parity of reasoning, survives against the executors or administrators of the tort-feasor. Ten Eyck v. Runk, 2 Vr. 428; Hayden v. Vreeland, 8 Vr. 372; Noice, Admr., v. Brown, 10 Vr. 569; Tichenor v. Hayes, 12 Vr. 193.

If the claims for damages for personal injuries on which complainants’ bill is founded bid been prosecuted to judgment, it may be open to question whether, in view of the state of our law in respect to maintenance and champerty, and the survivor-ship of actions, assignments thereof might not become operative upon the judgment and fall within the jurisdiction of this court to enforce in favor of the assignee, as in ordinary cases of equitable assignments. It may be argued that such damages, which at the time of the assignment were unascertained, had by judgment recovered become fixed and determined; that the judgment had become a debt of record and that the amount thereby fixed was a fund which had come into existence out of a previous possibility, and that, in the absence of the obstacles which deterred the English courts from recognizing such assignments, this court might properly enforce upon the judgment, and the judgment debtor, the claim of the assignee.

But such a question is not presented in this case, and the argument suggested is wholly inapplicable to the situation disclosed by this bill. No judgment was recovered upon any of these claims for damages. What occurred between the parties was this: The alleged tort-feasor, the defendant company, admitted its liability for the injuries for which damages were claimed, treated with the injured persons with respect to. the amount of compensation to be paid for a release of the claims, and when that amount was agreed on between them paid the same to the injured persons and simultaneously received from them complete releases therefor.

That a person having a valid claim to recover damages for a personal injury may bargain with his attorney and agree to pay him for his services a share of the amount received or recovered, and that such agreement may be enforced between them, seems to admit of no question. But the contention, on the part of complainants is that the attorney holding such an agreement or assignment of a share of the damages received may, by giving notice thereof, to .the tort-feasor, impose on the latter an obligation to account to him for such share of the compensation for such injuries as may be agreed upon between him and the person he has injured. To give such effect to a notice of such assignment would obviously operate to practically prohibit any composition between a tort-feasor and. the person he has wronged, when the composition consists of a cash payment to the latter for a release. It would introduce into the negotiation for settlement, on the basis of a present payment to the injured person, the claim of one who was not injured, and whose only interest in the claim is what Lord Tenterden, in dealing with actions prosecuted in forma pauperis, called the “spes spolii.”

Nor will such assignment fall within the reason of the doctrine respecting equitable assignments of choses in action under the circumstances disclosed in this bill. Such assignments admittedly operate only where some fund or property comes into existence arising out of a previous possibility. He who holds such a fund may then be liable to account to the assignee thereof. Where a composition is made between the tort-feasor and the person wronged, on the basis of a payment for a release, .the fund does not come into existence until the payments and the release are simultaneously exchanged. Then the fund thus created is in the hands of the releasor, and the assignee may follow it there; but it never existed in the hands of the releasee.

In many of the states the subject of such contracts of attorneys with their clients has been dealt with by statutes. Some of them confer upon the attorney a lien upon the amount recovered, not only for the costs, but for a stipulated share of the damages under any agreement between the attorney and the injured party. Yet it has been held, in a well-considered opinion in Tennessee, where such legislation exists, that notwithstanding the lien thus imposed by statute, and of which the tort-feasor must have had knowledge, he might well deal with the party making claim upon him for damages for personal injuries, and satisfy and pay the claim before judgment, without reference to the lien of the attorney. Tompkins v. Nashville, &c., Railroad Co., 61 L. A. R. 340. The same view was expressed in Illinois C. R. R. Co. v. Wells, 104 Tenn. 711.

For these reasons I conclude that the bill states no facts upon which an equitable duty on the part of the defendant company arises which can be enforced by decree.

The demurrer must be upheld and the bill dismissed, with costs.


text:
    Alice L. B. Molten, executrix, v. John W. Sutphin.
    [Filed May 10th, 1904.]
    A testamentary clause, whereby a testatrix willed and directed that certain of the real estate of which she died seized should be sold and conveyed by her executrix “within five years from my decease,” and the proceeds divided between two beneficiaries — Held, to be merely directory in respect to the limit of time for sale, and further held that the executrix retained power of sale after the expiration of the limited period.
    On demurrer to bill.

      Mr. Gardner II. Gain, for the demurrant.

      Messrs. Loaning ¿6 Wicoff, for the complainant.
   Magie, Chancellor.

The complainant filed a bill for the purpose of enforcing a written contract, dated December 19th, 1903, made between her (as executrix of the last will and testament of her mother, Catharine M. Brearley, deceased), of the one part, and John W. Sutphin, of the other part, for the purchase and sale of a tract of land lying in the county of Mercer, of-which land the said Catharine M. Brearley had died seized. The complainant charges that her mother, Catharine M. Brearley, died testate, leaving a last will and testament and certain codicils thereto, which were admitted to probate by the surrogate of the county of Mercer after the death of the said Catharine M. Brearley, which occurred December 13th, 1895.

The bill sets out the will in full. It contains the following clauses:

“Sixth. I will ancl direct that my Chambersburg farm, now in the city of Trenton, lying on the southwesterly side of the Crosswicks turnpike road, and my other lands, meadows and flats in the township of Hamilton, in the county of Mercer and State of New Jersey, and my farm called the Dutch Neck farm, in said county of Mercer, be sold and conveyed by my executrix within five years from my decease and the proceeds equally divided between my said daughter and granddaughter.
“Seventh. All the rest of my estate of every kind and wheresoever situate I will and direct, to be sold by my executrix and turned into money and the proceeds equally divided between my said daughter and granddaughter.”

The bill further charges that the said executrix tendered to the defendant, on the day on which the agreement between her and him was to be performed, a deed of conveyance for the lands contracted to be conveyed to him, which deed recited the death of Catharine M. Brearley, the publication of her last will and testament and the probate thereof, and the provisions of the sixth and seventh clauses of the will, and granted and conveyed to the defendant the lands which she had contracted to sell to him, and upon such tender she demanded the payment of the money which he had thereby agreed to make. It further charges that the defendant refused to perform the contract and alleged, as a cause for refusing, the inability of the complainant to convey a good title to the land because the period of five years, within which the testatrix had directed the said lands to be sold, had then expired. The bill proceeds to assert that this construction of the will, alleged as a cause for refusal by defendant, is erroneous, and claims that she has power to execute a deed for said lands capable of passing a good title therefor. The prayer of. the bill is for the .specific performance of the contract.

To this bill the defendant has demurred, and the cause of demurrer assigned is that upon a proper construction of the sixth and seventh clauses of Mrs. Brearley’s will the complainant possessed no power to make a contract for sale of the lands, or to execute a valid conveyance thereof, or to enforce the contract set out in the bill.

The will in this case has been before me. Parties interested in the estate and entitled to a share of the funds raised by a sale of' the property under the sixth clause filed a bill in this court, by which they prayed, among other things, for a decree requiring the present claimant to sell said lands. That bill was filed after the expiration of the five years following the death of the testatrix. The scope of that bill was an admission on the part of the complainants thereto that the power to sell continued in the executrix after the expiration of the.five years. There was consequently no argument to the contrary, and although I gave the matter some consideration, what was said thereon was probably unnecessary to the decision of the case, for the bill was dismissed because of a lack of parties necessary to justify a decree requiring a sale of the lands.

But I expressed the view that the executrix of Mrs. Brearley’s will did not lose the power of sale conferred upon her by the sixth clause because the period of time mentioned therein had elapsed. Upon cases cited in that opinion, the view of this court was declared to be that where a limitation of time is imposed upon a power of sale and is of the essence thereof the power must be executed within the prescribed period, but where it is merely directory the power may be executed thereafter. Whether compulsory or directory is to be learned from the language of the whole will. That language seems to me to leave no doubt that the testatrix, in fixing the period of five years from her death, merely meant to direct her executrix, and not to compel her, to sell within that period. My subsequent consideration of the question, upon the briefs filed in this case, has confirmed me in the view then expressed. Brearley v. Molten, 17 Dick. Ch. Rep. 345.

The directing purpose, in my judgment, appears in this clause itself from the provision therein made for the division of the proceeds of the sale by the executrix between beneficiaries, and the entire absence from the will of any disposition of the farm property directed to be sold, if the executrix should not have sold the same within the limited period. It is to be presumed that the testatrix did not intend to die intestate of this property if not sold. The provision of the seventh clause, giving power to the executrix to sell and turn into money all the rest of testator’s estate without limit of time does not militate against this view, but rather strengthens it. The power of sale in each clause is expressed to be for the purpose of dividing the proceeds between the same beneficiaries. Their rights in the proceeds are not expressly given, but plainly inferable from the direction to divide the proceeds. It is inconceivable that the testatrix intended that the property in question, if unsold within five. years, should descend to her heirs-at-law as undevised, or pass to the beneficiaries as devised. The purpose was to direct a sale within five years and to permit a sale thereafter for division of the proceeds.

The result is that the bill demurred to discloses a power of sale which complainant is capable of exercising, and as the demurrer admits that defendant contracted to buy from her the land in question, complainant is entitled, on the charges of the bill, to a decree for the enforcement of the contract.

The demurrer must be overruled,