text:
    William Smith v. David H. Brand & Company.
    [Filed October 13th, 1901.]
    A firm carrying on business under the name of “Brand & Smith,” the surnames of the partners, transferred its assets and good will to a corporation. The complainant, one of the partners, began a new and similar business. — Held, that he is not entitled to have the corporation enjoined from advertising' its business under the name of “Brand & Smith,” or as the "Successors of Brand & Smith,” on the ground that the public may be deceived.
    On bill for iiijunction.
    J/r. Edwin R. Walker, for the complainant.

      Mr. William J. Walsh and Mr. Charles E. Bird, for the defendant.
   Bergen, V. C.

The object sought by the complainant is the restraining of the defendant from using the name of “Brand & Smith” on its business signs and wagons, or in its other methods of advertising. The facts disclosed by the bill of complaint and answering affidavits are as follows: For many years previous to 1904, the complainant and David IT. Brand were engaged in business as partners, trading under the firm name of “Brand & Smith;” that on February 26th, .19 04, the two partners and John H. Brand caused to he incorporated under the laws of the State of New Jersey, a company under the name of David H. Brand & Company ; that on the same day, the complainant and the said David H. Brand, as such partners, sold and conveyed to the corporation then created, all of the stock in trade, good will, rights and credits of the said firm of Brand & Smith, and thereafter mutually dissolved and terminated the partnership theretofore conducted under that name; that on March 11th, 1904, the complainant sold his stock and interest in the corporation to the corporation, retaining to himself but a single share; that on the 1st day of September, he and his brother formed a copartnership under the firm name of William Smith & Brother, for the purpose of carrying on the clothing business, the corporation of David II. Brand & Company being engaged in a like business. The principal ground of complaint alleged by the complainant is, that the corporation advertise their business as “D. II. B. & Co., successors to Brand & Smith,” and in such advertisement the words and letters “D. II. B. & Co., successors to,” are printed in small letters, and the words “Brand & Smith” in large display type, so that'in a casual reading, the small type is not likely to attract attention, thereby misleading the public to believe that the business is still being carried on by “Brand & Smith,” and not by the new corporation; it being admitted that the old firm of Brand & Smith, by reason of liberal advertising, and a successfully conducted business, had obtained and enjoyed the public confidence to a large and profitable extent. The' complainant insists that the defendant makes use of the name of “Brand & Smith” for the purpose of deceiving the public into the belief that the former partnership is still in existence, and that the complainant is connected with the business, to the injury of the complainant in his new enterprise under the name of William Smith & Brother. It thus appears that two men formed a copartnership and adopted as a firm name or trade mark a name made up of parts of the names of the respective partners; that this name became well known in the community where the business was being transacted, and enjoyed a popularity which was of great advantage to the business; that the partners jointly transferred, for a valuable consideration, to a corporation owned and controlled by themselves, not only the business and stock of the partnership, but also, and in express terms, the good will of the firm; that the purchaser of the business and good will continues to advertise its business sometimes under the name of “Brand & Smith,” and at other times as the “successor of Brand & Smith,” doing so in such manner as to avoid, so far as possible, calling public attention to the matter of successorship. Under these circumstances, I fail to see any equitable ground upon which the interference of this court can be supported. The principle that the good will of a trade conducted by a firm is one of its assets and may be sold, and that the purchaser of the good will of a business acquires the right to use the old name and to prevent others from doing the like, is well settled. Lind. Part. 445.

In Levy v. Walker, 10 Ch. Div. 436, it appears that in proceedings taken to dissolve the partnership of Charbonel & AYalker, the court decreed a sale of the assets of the firm, includ-. ing its good will and business, and directed that after sale a proper deed of assignment should be executed by the non-purchaser or non-purchasers. At the sale, Miss Walker, one of the partners, became the purchaser, and in compliance with the terms of the decree the non-purchasing partner executed the deed of transfer to the purchaser by the terms of which she assigned; transferred and released all her right, share and interest in and to the business, “and the good will thereof.” The purchaser continued to conduct the business under the name of “Charbonel & Walker,” and the retiring partner having engaged in a similar business, using the name of “Charbonel,” sought to restrain Miss Walker from using the name of the firm whose business and good will she liad purchased. On appeal it was held, reversing the order of the vice-chancellor allowing the injunction, that the right to use the name of “Charbonel & Walker” was conveyed by the assignment of the good will of that firm, and that as between the vendor and purchaser of the good will, that right was the exclusive property of the purchaser, and that the trade name, made up of parts of two real names, was the name of the business, and a name with which every article sold might be impressed. It seems to me that all of the elements upon which the determination of the court was based in the cause just referred to arc-present in the case we are considering. The trade name of “Brand & Smith” was a valuable asset of that firm; it was conveyed to the purchaser and present holder by this complainant and his partner, and the right-to conduct the business under that name became the exclusive property of the purchaser, and certainly the complainant, having joined in the -sale of the good will and received and appropriated the proceeds of a part of that sale, ought not now to be permitted to complain that the purchaser is using what he bought and paid for in the only way in which he can make such purchase available.

In Snyder Manufacturing Co. v. Snyder, 31 L. R. A. 657, a copartnership existed and the business was carried on under the firm name of “Snyder Manufacturing Co.;” this partnership was dissolved through the appointment of a receiver, who, by direction of the court, sold the assets and good will of tin-firm at auction; the purchaser was one of the j)artners, who thereafter organized a corporation with the name of “The Snyder Manufacturing Co.;” Snyder, one of the partners in the old firm, sought to enjoin the use of his name as a part of the title of the corporation which was continuing the old business. The court refused an injunction, saying, that it is well settled when a partner sells his interest in the business to a copartner without a reservation or exception of the good will, the purchaser is entitled, not only to continue the business in the name of the firm, and as its successor, but he ma}'' prevent the selling partner, or other person from (Tarrying on business in that way, and that where the purchaser transfers the property so acquired by him to a corporation of which he is a member, organized to succeed to the business, it may carry on the business in the same manner under a corporate name, including the name which had been used by the firm, and that if it is desired to limit the right of the purchaser or his vendee in the use of the firm name, or exclude sucli right altogether, it should be done by stipulation in the contract when the sale is made by the partners.

The complainant very strongly urges the proposition that the use of the name of “Brand & Smith,” as used by the defendant, is calculated to deceive tire public, and is likely to create confusion with reference to the identity of the two firms. I am not disposed to accord any persuasive power to this argument. The name of “Brand & Smith” is not calculated to mislead the public into a belief that it represents the business carried on under the name of “William Smith & Brother,” nor that the business of the latter firm will be in any way affected by a confusion of names. In support of his argument, counsel for complainant has called the attention of the court to two cases in this state (Van Horn v. Coogan, 52 N. J. Eq. (7 Dick.) 380, and Newark Coal Co. v. Spangler, 54 N. J. Eq. (9 Dick.) 354), but neither of these cases establishes any principle contrary to the view-s I have expressed. In the first case the defendant offered for sale an 'article, adopting for descriptive purposes a name by which quite a different article was known in the trade, with the manifest intention of misleading the public into a belief that he, the defendant, was offering to sell an article which had obtained public approval. In other words, the defendant was endeavoring to put off his goods as the goods of a rival trader. To such condition exists here. It is not pretended that the defendant is endeavoring to sell its goods as the goods of the complainant. In the second of the eases last referred to, the only question involved was the right of the defendant to advertise himself as having been formerly connebted with a rival business enterprise, and the effort to restrain the defendant, Spangler, from making such an announcement in the advertising of the business, did not meet the approval of this court. It seems to me to be very clear that the defendant in this cause has not exceeded its rights, and that the complainant is not entitled to the relief he seeks, and 1 will so advise. ■


source: Caselaw Access Project

author: Garrison, V. C.

license: Public Domain

text:
    Benjamin H. Rogers v. Zaidee W. Rogers.
    [Filed August 30th, 1904.]
    1. Sexual intercourse by husband and wife, after he has knowledge- and means of proving her adultery, is condonation.
    2. Forgiveness is not an essential element in condonation.
    Heard on petition, answer and proofs in open court.

      Mr. Francis Scott, for the petitioner.

      Mr. Addison Fly, for the defendant.
   Garrison, V. C.

This is a petition filed by the husband against his wife, charging her with adultery and praying for an absolute divorce.

The parties to tliis suit were married in 1889.

The petitioner is a physician, practicing at Paterson, New Jersey.

They seem to have lived contentedly together until the summer of 1903.

In the summer of 1902 the brother of the petitioner, at whose cottage at Ocean Grove the defendant lodged for a time, informed the petitioner of certain conduct of the defendant with William Hobson, and for this the husband rebuked her, but they continued to live together, as before, and the husband continued to employ Hobson at his office in Paterson.

The office was in the house where the petitioner and his wife resided.

William Hobson was a young man of eighteen, who for some time was in the employ of the petitioner, assisting him in his laboratory.

In the month of June, 1903, a colored boy in the employ of the petitioner told the petitioner that he had seen Hobson and, the defendant embracing and kissing each other in the house at Paterson.

The other witnesses, subsequently produced at the trial, related their stories to him, and the petitioner himself had been the witness of suspicious occurrences.

Prom this time on the petitioner began to accuse the defendant of adultery with Hobson.

He consulted counsel, and in the presence of such counsel and of the mother of the defendant and of his brother, he accused her of infidelity.

He and his brother testify that at that time she confessed that she had been guilty of adultery upon one occasion with Hobson.

The mother of the defendant testifies that the defendant stood mute, and afterwards that she denied that she had been guilty.

The counsel of the petitioner, who was present, testified that the wife did not denjq but that she said that married people often made mistakes and afterwards came together again.

The defendant denies that she made any confession.

Apart from the alleged oral confession of the defendant, the evidence adduced by the petitioner was of three kinds — testimony as to the conduct of the defendant and Hobson while together; letters of the defendant to the petitioner, and letters of the defendant to Hobson.

Hobson was sworn as a witness on behalf of the petitioner, but was not questioned as to his relations, with the defendant.

The testimony of the conduct of the defendant and Hobson, while together, is meager, and is of little, if any, value in aiding to arrive at the truth.

I think the defendant undoubtedly had conceived an affection for Hobson, and that she was, as the witnesses phrase it in their testimony, indiscreet in her conduct with him, but the testimony of the witnesses as to the actions of the defendant and Hobson, when together, falls far short of such convincing or persuasive evidence as is necessary as a basis for a finding that the defendant was guilty of adultery.

There are many sentences in the letters written by the defendant to the petitioner which are inconsistent with her innocence, and there are some sentences in her letters to Hobson which, by inference, imply a guilty connection between her and him.

Were it necessary to decide whether a finding of adultery could be based upon the evidence in this suit, embarrassment would be found in the principle enunciated in Kloman v. Kloman, 62 N. J. Eq. (17 Dick.) 153 (Vice-Chancellor Reed), that the confession of the wife in the oral statement and in the letters is not sufficient, in this state, to base a decree or finding upon.

And if in the suit at bar it is attempted to find corroboration to aid the confession, the corroborating evidence is very slight.

However, I do not find it necessary to decide the fact of the defendant’s guilt.

The husband began his accusations of adultery against his wife about June 25th, 1903, “after,” as he saj^s, “I became convinced of a knowledge of her adultery.”

From that time until July 1st, 1903, they continued to occupy the same bed.

He admits that they did occupy the same bed some of the time, but insists that he was ill and that they did not have sexual intercourse.

She asserts that they occupied the same bed all of that time, and that they did have sexual intercourse.

There is the same reason for inferring that sexual intercourse was attendant upon the continuation of connubial relations in this case as there was in the case of Todd v. Todd, 37 Atl. Rep. 766 (Vice-Chancellor Grey).

The constant theme of conversation between them during this time was the accusation that he made against her.

Hobson continued to be received by the husband and was a party to many of the talks about the matter.

I find that at that time it was the general understanding that the wife should go away for two years; that the husband should supply her with money, and that at the end of that time he should procure a divorce for desertion.

I believe that he expressed this as his wish and that she agreed to comply with it, and that her hope was that she could effect a reconciliation with him and resume their married life together.

About the 1st of July she left for the country.

After she had been away a month, and about July 31st, 1903, he requested her to return.

His object in having her return to the State of New Jersey was to enable him to have served upon her the citation in this suit, he having caused the suit to be brought in July, 1903.

The charge in the petition is the commission of adultery with Hobson, at Ocean Grove and at Paterson.

She did return and went to her father’s house at Hackensack, and for the next fifteen days they met upon several occasions, he going to Hackensack, to her father’s house.

Her father was ill and the petitioner had been or was then attending him.

The defendant testifies that upon some of Hie occasions of their meeting at her father’s house, in August, of 1903, they had sexual intercourse.

The petitioner denies this.

There are witnesses corroborating, to some extent, .the testimony of the defendant in this respect.

It is not denied that from an early period in the insistment of the petitioner that the defendant was guilty of adultery he endeavored to get from her a written statement of her guilt, probably with the belief that it would be conclusive evidence in the suit.

At these meetings in Hackensack, in August, 1903, he was constantly requesting her to copy, sign and give to him a letter, composed by him, in which she confessed her guilt.

I find that alter his accusation, in June, 1903, based, as that accusation was, upon all of the oral evidence since produced in the trial, and after the bringing of the suit, in July, 1903, the petitioner and defendant indulged in sexual intercourse.

_ I conclude that, as the wife stated in a letter to her husband, in January, 1904-, he treated her as his wife for many weeks after he became convinced of her guilt.

The language of her letter of January loth, 1904-, is: “You certainly treated me, of your own desire and accord, for many weeks, as your wife, and yet you say you cannot now."

I do not believe that he at any time forgave ’her in the sense that ho wiped out the past, for the purpose of beginning life again with her.

The testimony convinces me that, Avhatever other reasons may have actuated his conduct, he kept upon affectionate and intimate terms with his wife after he was convinced of her guilt, and after he was possessed of all the oral evidence that he afterwards produced, for the purpose of obtaining from her a written confession of her guilt, which he undoubtedly believed would be all the proof needed'in his suit.

If the essence of condonation is forgiveness in the usual signification of that word, then the conduct of the petitioner in this qase does not amount to condonation.

But I conceive that although the etymology of the word and its definition and use by many courts implies forgiveness, the application of the principle of condonation to proven facts by our own and other courts, is with no reference Avhatever to the presence or absence of forgiveness.

The law undoubtedly favors the marriage relation and its continuance.

It places at the disposition of the offended party a remedy enabling the offended party to break the relation by proper application to a court upon proof of certain defined offences.

•If, after an offence has been committed and the offended party has become possessed of knoAvledge of the offence and of the means of proving it, the offended party elects to forego a remedy which the law affords, he or she is said to have condoned the offence.

I do not think that courts now seek to discover the reasons which induce the offended party to forego the remedy afforded.

It has always been the law that proof of sexual intercourse, after knowledge of and means of proving the offence, constituted condonation.

This,- of course, would not be so if, in addition to the proof of sexual intercourse after knowledge of the offence, it was a necessary element of condonation to show that the offended party had forgiven the offence.

It is not an answer to suggest that the law implies forgiveness, because there are innumerable instances in which the proofs show that the offended party resumed marital relations for reasons absolutely inconsistent with forgiveness, and many others in which the reasons contained no element of forgiveness.

The case of Todd v. Todd, 37 Atl. Rep. 766, is of that class.

I think that if we treat the doctrine of condonation as based upon the election of the offended party to forego the remedy which a full knowledge of the offence enables him to apply, if he will, we will be able more readily to reconcile the decisions of the courts upon this subject.

Since I find in the case at bar that the petitioner, after being convinced of the guilt of his wife, and áfter having in his possession evidence upon which he based his suit, continued to have sexual intercourse with the defendant, I conclude that she has made out the defence of condonation, and that the petition must be dismissed, with costs.

The petitioner urges upon the court that condonation is limited and conditional, and that the letters written by the defendant to Hobson, after the resumption of marital relations by the petitioner and his wife, broke the condition and restored to the petitioner the remedy waived by the condonation.

In the case of Warner v. Warner, 31 N. J. Eq. (4 Stew.) 225, Vice-Chancellor Van Fleet said: “The commission, subsequent^, of any offence which falls within the cognizance of a matrimonial court, is a violation of the condition and vitiates the pardon.”

There is no proof of any offence such as that referred to in the above quotation.

I will therefore advise a decree as heretofore stated.


text:
    Emma J. Cranwell v. Clinton Realty Company and August Kleinke.
    [Filed October 12th, 1904.]
    1. Time is not of the essence of an agreement to convey lands unless the parties have expressly so stipulated, or it follows by necessary implication from the nature of the transaction.
    2. The vendor cannot rescind an agreement to convey lands because of the default of the vendee unless he first tenders to the vendee a proper deed and demands payment, which is refused.
    3. A person purchasing land, with notice of an enforceable contract by his vendor to sell to another, may be compelled to specifically perform.
    4. The vendee in a contract for the sale of lands secured various extensions of time an'd finally failed to pay certain interest and taxes, which he had promised to pay, to secure the last extension, but he at all times expressed his desire to take the property. — Held, that he was entitled to a decree for specific performance, but that he was not entitled to costs, because of his delay.
    5. Quaire. Oan a vendor make time of the essence of a contract to convey lands by giving a notice requiring the vendee to make settlement within a time specified therein?
    On bill, answer, replication and proofs.

      Messrs. Weller & LicMensiem, for the complainant.

      Mr. Frederick N. Fberhard, for the Clinton Realty Company.

      Mr. Augustus A. Rich, for August Kleinke.
   Garrison, V. C.

This is a bill filed by Emma J. Cranwell against the Clinton Realty Company and August Kleinke, praying for the specific performance of a contract to convey real estate.

On the 19th day of April, 1902, the Clinton Realty Company, through' its general manager, George J. Luxton, entered into a written contract with George W. Cranwell, agreeing to sell to him certain lots in the town, of West Hoboken, in Hudson county, in this state, for the sum of $3,000, to be paid $150 .at the signing of the agreement, “and the remaining $2,850 on or before the 19th day of October, in the year 1902, at the company’s office.”

The company agreed, “on receiving such payments at the time and in the manner above provided * * * to deliver to the said Cranwell a proper deed,” &c.

On the 28th of August, 1902, there is written upon tire original agreement an assignment of all the right, title and interest of George W. Cranwell to Emma J. Cranwell.

On the 14th day of October, 1902, there is written upon the agreement the following:

“Jeksey City, N. J., Oct. 14th, 1902.
“For the further consideration to extend this contract, the party of the second part(y) agrees with the party of the first part to pay taxes confirmed in 1902, for 1903, and interest of five per cent., from Oct. 19th, 1902.
“The within contract is extended six months from Oct. 19th, 1902.
“Clinton Realty Co.,
“G. J. Luxton, Gen. Mgr."

After the execution of the agreement Cranwell entered into possession of the lots by building a fence and by depositing contractor’s materials upon the land.

While the rights of Cranwell appear to> have been assigned to his daughter, it is quite clear from the testimony that this was merely a formal assignment, and that all of the equitable rights were vested in George W. Cranwell, the signer of the agreement.

Erom the expiration of the written extension, which occurred on the 19th of April, 1903, down to the 1st of November, 1903, it is quite clear that the failure of Cranwell to make the payment required by the contract was acquiesced in by the realty company.

He was waiting to receive some moneys due him for work upon buildings that he had contracted to finish, and had communicated-this fact to Mr. Luxton, and the company was willing to wait upon him, and did so.

On the 1st of November, 1903, Mr. Wright, the president of the realty company, went to see Mr. Cranwell and called to his attention the fact that he had not paid the interest and the taxes, and wanted to know when he would settle up.

Cranwell informed him of various misfortunes which had overtaken him, and requested more time, and Wright informed him that he could not do anything about that until he had had a consultation with Mr. Butts, who, it appears, was largely interested in the realty company, and was its secretary and treasurer.

In this conversation with Wright, Cranwell referred to a debt of $280 owing to him by Mr. Luxton, for work done by Cranwell for Luxton on Buxton's property.

I think it clearly appears from the evidence that although there was no agreement between Luxton and Cranwell, and certainly none between the company and Cranwell, that this $280 should be credited to Cranwell on the purchase of the lots, still both Cranwell and Luxton intended that Cranwell should receive the benefit of this credit in the final settlement.

I refer to this matter because I think it casts light upon Luxton’s failure, acting for the company, to press Cranwell with respect to the payment of the taxes and interest, and CranwelPs failure to raise and pay that amount from other sources.

When Mr. Cranwell mentioned the matter of this credit to Mr. Wright the latter immediately informed him that it could not be allowed, and it is not claimed in this case that it should be.

On the 6th of November, 1903, Messrs. Wright and Butts called upon Mr. Cranwell.

Cranwell made the same statement-to them concerning his financial condition as he had previously made to Mr. Wright. He was very desirous of obtaining more time, and they were willing to give it to him, but wanted the matter of taxes and interest settled.

They gave him at that time a computation of the amount of interest and of the taxes, $315.15, and they say that he said it was an easy matter for him to pay that, and that he would send them a check the next day.

They gave him the address of Mr. Butts, to whom he was to send the check.

I do not find that upon that da.y there was any agreement that if he did not send the check the next day tire company would cancel the contract. I do think that it was the general understanding that he was to send a check the next day or within a day or so.

The witnesses for the complainant testify that on the 10th day of November, a check was made out to the realty company for $143.50, the amount of the interest due, and was mailed to the realty company, in care of Mr. Butts, at the address given to Mr. Cranwell by Mr. Butts.

They explained that the check was only made for the amount of the interest, because they hoped to obtain a reduction of the taxes.

They produced a check book which bears the appearance of having been in every-day use, and on the seventh stub of which there appears a memorandum of a check made out to the Clinton Realty Company, for the sum of $142.50, under date of November 10th, 1903.

There is nothing in the appearance of the book — which seems to have been used continuously before and since that date — to cast any suspicion on the truth of this testimony.

The son, James W. Cranwell, testifies that he personally wrote the words upon the check and the stub; that the check was signed by his sister, the complainant, in whose name the account stood, and that he placed it in an envelope with a return address printed on the outside, and stamped and addressed the envelope as above stated, and gave the same to his father to mail.

The father testifies that he mailed if.

All of the witnesses for the complainant testify that neither the check nor the envelope were ever seen by them, again. '

The witnesses for the defendant testify that the check was never received by (hern.

The testimony of the complainant with respect to tire sending of this check is corroborated by the testimony of George J. Luxton, who was general manager of the realty company and a witness produced by it.

On the 11th day of November, 1903, Messrs. Wright and Butts composed and sent a letter, as follows:

“Hoboken, N. J., Nov. 11th, 1903.
“Mr: <?. W. Oranwell, or whom U may concern:
“Xou are hereby notified if payment is not made according to our oral arrangement this week, the company will cancel your contract and all right to same.
“Clinton Realty Co.,
“Tiieo. Butts, Bee. é Trcus.”

On that day Mr. Luxton met the younger Oranwell and told him that he had just come from the office of the company and that they had sent a stern letter to his father, because he had not paid the interest and taxes, to which the younger Oranwell replied that they had sent a check, and Luxton thereupon said that if that was so they need pay no attention to the letter.

Either that day or shortly after, Mr. Luxton was taken by one of the Cranwells to their house and was there shown the check book and saw tire stub of the check.

I therefore find that a check was made out and sent for the sum of $142.50, which was the interest then due.

Since the check was not received it is not evidence of payment, but is important as showing the intention of the-vendee.

About ten days after this a rumor reached the Cranwells that Ihe company had sold these lots to some one else.

The elder Oranwell, who learned this apparently on the 21st of November, 1903, which was Saturday, went to see Mr. Luxton on Sunday, and was referred by him to Mr. Wright, whom he went to see on Monda}', the 23d of November.

When he reached the office of Mr. Wright on that day Mr. Kleinke, the defendant, was there.

Mr. Cranwell testifies that he told Mr. Wright he was prepared to take the title then. Mr. Wright testifies that Cranwell said he was ready to take tire title on the 1st of December.

A contract to> convey these same lots to Kleinke for the sum of $3,215 had then been written, but had not been signed by Kleinke.

Mr. Wright informed Mr. Cranwell that he was too late, as he had already sold the lots to Mr. Kleinke. Cranwell threatened to obtain an injunction, and left the office, and Kleinke subsequently signed the contract, and a deed was immediately prepared from the realty company to Kleinke, and was signed and recorded the next day, November 24th.

Kleinke had, previous to this day, full notice of the agreement between the realty company and Cranwell.

The consideration to Kleinke is $3,215, which is the total of the original consideration of $3,000 plus the $215 of interest and taxes, so that the sale to Kleinke realized to the realty company exactly the same sum of money as the sale to Cranwell would have realized.

Under the contract with Kleinke the company was to receive $200 in cash on the execution of the agreement, $915 on the delivery of the deed, and a bond and mortgage for $2,100.

They did receive the $200 in cash, but took a note for the $915, because, as Mr. Wright explains, they thought there would be a law suit and they wanted to hold the note to abide the issue.

Mr. Wright evidently means, by this testimony, that they did not desire to take cash from Mr. Kleinke, since he might have to reconvey to Cranwell, and 'they did not desire to keep him out of his money if he was not to get the land.

The bill in this case was filed on the 28th of November, 1903, immediately after the conveyance to Kleinke.

Since I find, as a fact, that the delay in payment of the balance of the purchase-money, down to the 1st day of November, 1903, was acquiesced in by the realty company, it is only neeessary to consider the effect of the conduct of the parties from then to November 23 d.

It is well settled, in this state, that time is -not of the essence of an agreement to convey lands unless the parties have expressly so stipulated, or it follows by necessary implication from the nature of the transaction. Cramer v. Mooney, 59 N. J. Eq. (14 Dick.) 164 (at p. 170) (Vice-Chancellor Grey, 1899), citing cases; Bullock v. Adams’ Executors, 20 N. J. Eq. (5 C. E. Gr.) 367 (at p. 371) (Chancellor Zabriskie, 1869), citing cases.

A court of equity considers that the vendee is the equitable owner of the land, and the vendor is entitled to the purchase-money, and that unless, either by express terms or necessary implication, time becomes of the essence of the contract, equity is done by securing the legal title to the land to the vendee and possession of the purchase-money, with interest, to the vendor, within a reasonable time.

The court will not countenance unreasonable delaj', nor will it aid a vendee to obtain an unfair advantage by being passive if the value of the property is lessening or stable and quickening into activity, only when the value of the property has risen.

But if none of these elements are present — and none are present in the case now under consideration — the court merely looks to see whether the delay in the payment of the purchase-money has been unreasonable.

If the vendee has not shown any disposition to abandon his contract, but, on the other hand, has shown that he is endeavoring to carry it out, the court will hold that a short delay is not unreasonable.

The fact that the vendee has gone into possession and has expended money upon the property, is an added reason for decreeing a specific performance of the contract to convey to him, and the further fact that the part of the purchase price paid by him at the time of the execution of the contract was never returned or tendered to him, is an additional equity in his favor.

It would also appear that the vendor cannot successfully contend that he rescinded the contract because of the default of the vendee, unless lie shows that he tendered to the vendee a proper deed and demanded payment, which was refused. Flandrau v. Albanesius, 63 N. J. Eq. (18 Dick.) 800 (Court of Errors and Appeals, 1902); Leaird v. Smith, 44 N. Y. 622.

There is no evidence in this case that the realty company ever tendered a deed to the vendee.

The real question that I find necessary to determine in this case is whether the defendant, the realty company, by reason of the arrangement alleged to have been made on November 6th, 1903, or by reason of the notice given to Cranwell, dated November 11th, 1903, acquired the right to rescind or terminate the original contract on account of default by Cranwell.

As 1 have stated before, I do not find that at the conversation between Wright, Butts and Cranwell, held on November 6th, any agreement was arrived at by which the company could terminate the contract at once, if Cranwell did not pay the taxes and interest.

The subject under discussion at that interview was the length of extension that the company would give Cranwell. He wanted many months, and they would not accede to his desire.

They finally agreed that if he would pay the taxes and interest they would extend the time until the 1st day of February, 1904.

The circumstances concerning the sending of the check, in pursuance of this arrangement, have been heretofore detailed.

With respect to the notice dated November 11th, 1903, it should first be observed that they do not therein demand that he pay the balance due upon the purchase price or suffer a loss of his contract, but demand that he shall pay the taxes and interest within the week or they will cancel the contract.

Whatever effect in equity might be given to a notice from the vendor to the vendee that he must settle within a specified time or lose his right under the contract, in the case at bar there are mitigating circumstances in favor of the vendee.

It will be recalled that the testimony shows that a check for the interest was sent on November 10th, and that the notice was dated November 11th. On the last-mentioned day, and before that notice was received by Cranwell, Cranwelhs son met Luxton and was informed by him that such a notice was on the wajq and when the younger Cranwell told Luxton that they had sent the check, Luxton replied that then they need not pay any attention to the notice.

For the purpose of avoiding responsibility for tire conduct of Luxton as binding on the companj', they sought to show that Mr. Luxton’s connection with the company and his right to represent it ceased at a period prior to the latest negotiations with Cranwell.

While there is no clear exposition given by the witnesses for the defendant, the realty company, of its internal arrangements, I think it sufficiently appears that the following was the situation: Wright, who was president, Butts, who was secretary and treasurer, and Luxton, who was general manager, were in a close corporation dealing in real estate. Butts had evidently advanced some $6,000 to the enterprise, and it was the understanding that he was to receive this sum back before the others obtained any dividend, or, as they expressed it, “had any interest.”

As among themselves, Luxton, as general manager, at first seems to have had undisputed power to bind the corporation in every legitimate. way. They intimate, rather than prove, that later, he was shorn of some of his powers, and under very suggestive and leading questions put to Mr. Wright by counsel for the company, they sought to prove that they brought notice of this home to Cranwell.

But I think they failed to prove that Cranwell was ever properly informed that Luxton could no longer speak for the company.

Long after the time they claim that Luxton had ceased to have the right to bind the company, we find, from the testimony, that his apparent relationship toward it remained as before. We find, for instance, that he is constantly sent by the others to Cranwell; we find him selling property as before; the testimony shows that he was present, with the others, when the communication of November 11th was determined upon and was written and sent, and the very contract to TQeinkc, which was drawn, upon the day that the realty company claims it rescinded the contract with Oranwell, was written by Luxton.

Luxton himself testified that he has now the same interest that he always had.

Under these circumstances, I find that Oranwell, who had had all his dealings with Luxton, was justified in continuing to believe that Luxton was vested with the same power that he had always theretofore had to bind the company.

Whether or not a vendor may, so to speak, make time of the essence of a contract by giving a notice requiring the vendee to make settlement within a time specified therein seems to be debatable. Hubbell v. Von Schoening, 49 N. Y. 327.

But even conceding that such a notice might be effectual, the vendor could only claim default after he had shown full performance upon his part and that he tendered a proper deed to the vendee, Hubbell v. Von Schoening, supra.

I think that the rule formulated by the court or errors and appeals in the ease of McTague v. Sea Isle City Building Association, 57 N. J. Law (28 Vr.) 428, applies to the case at bar. In that case the court said: “An executory contract that contains no stipulation for its rescission and that has not been induced by fraud, majq in general, be rescinded by one party only when the other expressly refuses to perform, or has rendered himself incapable of performing it, or has otherwise evinced his abandonment of it. Mere delay in the execution of a contract whose terms would be satisfied by performance within a reasonable time does not of itself entitle the other party to rescind.”

I find that from the time of the interview on November 1st, 1903, to> November 23d, 1903, the vendee showed his evident intention to take the property and pay for it, and showed, clearly that he did not desire to abandon the contract, and that it was reasonable for him, in view of the conversations that he had had with the different officers of the compairy, to believe that they would wait for him to obtain the money that he had explained to them he expected to get, and that when he visited the president of the company, Mr. Wright, after he had heard rumors of the sale to another, and informed Mr. Wright (taking Mr. Wright’s version) that he would take the deed, and pay the money due on the 1st of December, which was seven days from the date of the interview, it was reasonable for the realty company to wait for that period of time before canceling the contract, or to tender him a deed and demand performance.

It is admitted by counsel for Kleinke, and clearly appears by the testimony, that Kleinke had full knowledge at the time of taking the contract and deed of the agreement between the company and Cranwell, and there is, therefore, no difficulty with respect to the decree as to his rights.

“The rule is well established that a purchaser with notice of a prior equity, superior to the rights of his grantor, takes the place of the grantor, and is bound to do that which he was bound in equity to do. Such a purchaser can be compelled specifically to perform the agreement by eonvejdng the land in the same manner and to the same extent as the grantor would have been compelled to do had he retained the legal title. Young v. Young, 45 N. J. Eq. (18 Stew.) 40, 41 (Chancellor McGill, 1889); Haughwout v. Murphy, 22 N. J. Eq. (7 C. E. Gr.) 547 (Justice Depue, Court of Errors and Appeals, 1871).” Brinton v. Scull, 55 N. J. Eq. (10 Dick.) 747 (Vice-Chancellor Grey, 1897.)

“And to be a Iona 'fide purchaser without notice, the defendant must not only have agreed to purchase without notice of the complainant’s previous agreement, but he must also have actually paid the purchase-money and taken his deed without such notice.” Dean v. Anderson, 34 N. J. Eq. (7 Stew.) 503 (Chancellor Bloomfield, about 1810); Brinton v. Scull, supra.

I will therefore advise a decree that the contract between the realty company and Cranwell be specifically performed, and that Kleinke be decreed to convey the title now vested in him.

I have determined to exercise the discretion vested in the court by the statute (P. L. of 1902 p. 538 § 84), by not allowing costs in this case.

My reasons for not allowing costs to the complainant are briefly these:

The complainant caused a long delay in the payment of the purchase-money and undoubtedly often disappointed the expectations of the company with respect to the time it would receive the money, and finally, when a determined effort was made by the company to get in hand at once the interest and taxes, he did not see to it that they got the money, although, as I have found, he showed his intention to keep the contract alive by mailing the check which was not received.

The officers of the company undoubtedly believed that they' were again to be disappointed with respect to receiving the money, and thought that they had a right to terminate the contract.

Their testimony was frank and full, and was given without any equivocation or attempt to either color or conceal facts.

Their good faith is further shown by the fact that the sale to Ivleinke was for exactly the same sum they would have received from Cranwell, so that it is clear that they did not seek to rescind the Cranwell contract because the property had appreciated in value.

Under such circumstances, therefore, it seems to me that it would be inequitable to require the defendants to do more than carry out the contract; they should not be visited with costs.

A precedent in point in this respect is Sharp v. Trimmer, 24 N. J. Eq. (9 C. E. Gr.) 422 (at p. 426) (Vice-Chancellor Dodd, 1874).

I will advise a decree in accordance with these conclusions. The form of the decree will be settled upon notice.


author: Magie, Ordinary.

text:
    In the matter of the probate of the paper writing alleged to be the last will and testament of Mary G. Young, deceased.
    [Filed November 14th, 1904.]
    1. A surrogate may decline to receive a will propounded for probate if not accompanied with a written application, such as is required by rule 1 of the orphans court rules. But if he has received it, and finds a caveat filed, he is bound to issue citations, and the orphans court .will acquire jurisdiction to act thereon.
    2. The “persons concerned,” who are by the statute required to be cited, include not only those benefited by the will and interested to support its probate, but also heirs-at-law and next of kin of the alleged testator.
    3. An heir-at-law and next of kin who was not cited and did not know of or appear in the contest in the orphans court, is a person aggrieved by a decree admitting a will to probate, and may appeal therefrom to this court.
    On appeal from the orphans court of Gloucester county.

      Mr. William J. Kraft, for the appellant.

      Mr. Boberl 8. Glymer, for the proponents.
   Magie, Ordinary.

This appeal brings into review a decree of the orphans court of Gloucester county, made on March 20'th, 1903, admitting to probate ihe last will and testament of Mary G. Young, deceased, and directing letters- testamentary to -be issued thereon to William Collins, the executor named therein. The petition of appeal is filed by Emeline Stiles, as a person aggrieved by the decree. As ground for the reversal, the petition sets out that the decree is “contrary to the evidence and the law,” and

“that the surrogate did not issue citations to all persons concerned to appear in the orphans court * * * upon the hearing on the caveat filed, * * * and because petitioner was not cited and had no notice of the hearing.”

The transcript sent up on this appeal discloses a caveat dated January 9th, 1903, and presented to the surrogate of Gloucester county by Mary D. G. Whiteman, claiming to be a first cousin and heir-at-law of Mary G. Young, deceased, against admitting to probate any paper purporting to be her last will and testament. Then follows the alleged will of Mary G. Young, the citations issued to the witnesses thereto to appear and give evidence on March 20th, 1903, before tire orphans court, and citations issued to the beneficiaries and executor of the said will, returnable at the same date, tire service of which was acknowledged by their proctor. It discloses that on that day, counsel appeared for the caveator, and for the proponents of the will, and that evidence was taken which appears in the transcript. On the same day the orphans court made a decree adjudging the instrument offered for probate to be the last will and testament of Mary G. Young, deceased; that it was properly executed, and that the testatrix was, at the time of its execution, competent to execute the same, and not under undue restraint or undue influence, and admitting the s'ame to probate, and directing letters testamentary to be issued thereon.

Then follows the petition of William Collins, directed to the surrogate of Gloucester county, applying for probate of the will and letters testamentary thereon. This petition is dated on the 20th day of March, 1903.

The transcript does not disclose any petition, or application in writing, to the surrogate for the admission of the will to probate, prior to that dated March 20th, 1903, nor is that petition in conformity with rule 1 of tire orphans court rules, because it omits to state the names of the heirs-at-law and next of kin of deceased, so far as known, with their residences or post-office addresses, and the manner or degree of relationship in Av'hich each was related to the deceased, as is required by that rule.

The notice of appeal filed in the orphans court appears in the printed book, although it is not included in the surrogate’s transcript of the proceedings certified by him. The notice purports to be given by Emeline Stiles, who declares thereby that she is one of the heirs-at-law of the deceased.

The petition of appeal in this court does not disclose the interest of petitioner with respect to the will in question, or show how she claims to be aggrieved by the decree admitting it to probate.

The executor and the beneficiaries under the will answered the petition of appeal, and upon the matter being brought to the attention of the ordinary it was suggested that the case did not disclose how the appellant was aggrieved by the decree, and thereupon the proctors, by agreement, took testimony in this court before a master. It thereby appears that decedent died, leaving no issue or descendants, and that appellant is one of her nearest of kin and one of her heirs-at-law. Incidentally, it appears that there are others of equal degree of kindred and also heirs-at-law of the decedent.

Counsel for respondents contests the right of appellant to prosecute the appeal. Iiis contention is that she did not caveat against the probate herself, or come into the contest under the caveat of Mrs. Whiteman, and therefore was not a party to the action having a right to appeal. Iiis further contention is that upon her claim that she was not cited into the orphans court, the decree does not affect her rights as next of kin or heir-at-law, and therefore does not aggrieve her.

lie also contends that there was no duty upon the surrogate to cite the heirs-at-law or next of kin of deceased, but that his duty was performed by the citation of the executor and the beneficiaries under the will.

These contentions may be considered in connection with the contentions on the part of the appellant.

The first contention of appellant is that the orphans court had no jurisdiction to adjudicate upon the validity of the will or to admit it to probate. This contention is made upon two grounds. It is first insisted that no jurisdiction was acquired by the orphans court, because the surrogate had no power to issue citations returnable into that court, no application in writing having been previously presented to him, as is expressly required by rule 1 of the orphans court rules. It is next insisted that the orphans court acquired no jurisdiction to proceed to the consideration of the matter, because it has been made to appear by the transcript and by the proofs taken here that there were next of kin and heirs-at-law of the decedent who were not cited to appear before it.

Tt will be observed that the transcript discloses no application in writing by the executor for the probate of the will, addressed to the surrogate, except that which was dated after the issue and return of the citations, and on the day of the admission of the will to probate by the decree of the orphans court. Moreover, that application is defective in that it does not conform to 'the express requirements of the rule.

But I do not think that the jurisdiction of the orphans court fails' because of the omission to present the will io the surrogate. with an application in writing for probate of the character required by rule 1. The statute requires the surrogate, upon the presentation of a will to him, if a caveat is put in against its being proved, to issue citations returnable in the orphans court, which is given power to determine the matter thus brought into controversy. Orphans Court act, § 13, P. L. of 1898 p. 718. The jurisdiction of the orphans court over the subject-matter of such a controversy arises upon the caveat being filed and the will presented. The surrogate ought to decline to receive a will presented -without an application in writing, such as is required by the rule, but if he receives it and finds a caveat against its probate filed, and thereupon cites the persons concerned, pursuant to the direction of the statute, I think it is 'clear that the jurisdiction of the orphans court attaches to the controversy.

But the second objection raises a question more difficult to solve. By the language of the statute above cited, the surrogate is bound to issue citations to “all persons concerned.” In this ease the surrogate has cited only the executor, who presumably propounded the will for probate, and the persons named as beneficiaries therein. They are doubtless persons concerned in the matter in controversy, which the statute commits to the jurisdiction of the orphans court. But they are not the only persons concerned. If the decedent died possessed of personal estate, the will may dispose of it otherwise than to the next of kin, as would be done under the statute of distribution. If he died seized of land, his heirs-at-law may be disinherited by its devises. Both next of kin and heirs-at-law are persons concerned in its probate, because the alleged will relates 'to their interest.

Such lias been the general view of practitioners and the practice of the orphans courts. For the purpose of disclosing who arc the persons concerned in any given case, rule 1 of the orphans court was promulgated. It requires the applicant for probate to place upon record, with a verification, not only the riamos of the next of kin and heirs-at-law, but their residence and their degree of relationship to the deceased, the plain purpose being to enable the surrogate and the orphans court to perceive, from the record itself, to whom citations should issue, and to determine whether they have been issued and served in the manner provided for the service of process for appearing before the orphans court by sections 174 and 175 of the act of 1898, or whether the non-resident persons have been brought in by service or publication in the manner provided by sections 177 and 178 of the same act. By orphans court rule 24, provision is made for the appointment of guardians ad litem for infants cited.

It does not appear that the orphans court was informed that there were next of kin or heirs-at-law who were not cited. If that had been shown, tire court would doubtless have continued the matter and would have required them to be cited. In the absence of objection, it proceeded to hear the matter and decreed probate upon evidence of the execution oE the will with all required formality, and that testatrix then had testamentary capacity that is entirely satisfactory.

Can a decree, made under such circumstances, be challenged on appeal by one who might have been, but was not, a caveator ? By section 204 of the act of 1898, the right of appeal from any decree of the orphans court is given to any “person aggrieved thereby." Who are persons aggrieved by a decree admitting a will to probate ?

If no caveat had been filed and the surrogate had admitted the will to probate, appellant, however aggrieved thereby, would have had no relief except by an appeal to the orphans court, taken within the time limited by the statute. Murray v. Lynch, 64 N. J. Eq. (19 Dick) 290; S. C., 65 N. J. Eq. (20 Dick) 399. But when a caveat is filed the legislative scheme contemplates that all persons concerned shall be notified of the contest thus inaugurated and given an opportunity to take part therein. Persons cited may doubtless appear in person or by proctor, cross-examine witnesses called by the proponent or contestants, present evidence for or against the admission of the will to probate and in all respects act as parties to the contest. They occupy a similar relation to the contest to that of persons noticed to attend the probate of a will in this court. In re Hodnett, 65 N. J. Eq. (20 Dick.) 329. Persons thus cited who appear and take part in. the contest, may, if aggrieved by the decree, appeal therefrom. Whether one cited in such a case who does not appear, or who, appearing, does not intervene in the contest, may maintain an appeal, may be questioned.

But appellant was not cited and did not appear or intervene in the contest. Can she be said to be a person aggrieved by the decree ?

The answer to this question must depend on the effect of the decree upon her rights.

The orphans court is not a tribunal of limited or special jurisdiction in the sense that its proceedings must set forth everything necessary to give it jurisdiction or to be presumptively void as coram, non judice. Clark v. Costello, 59 N. J. Law (30 Vr.) 234. On the contrary, it is a court of general jurisdiction in the sense that its judgments are entitled to a presumption of regularity, and facts necessary to sustain jurisdiction will be presumed and no evidence admitted to contradict them in any collateral proceeding. Plume v. Howard Savings Institution, 46 N. J. Law (17 Vr.) 211; In re Coursen's Will, 4 N. J. Eq. (3 Gr. Ch.) 418; Hess v. Cole, 23 N. J. Law (3 Zab.) 120; Obert v. Hammel, 18 N. J. Law (3 Harr.) 73; Boulton v. Administrators of Scott, 3 N. J. Eq. (2 Gr. Ch.) 231.

Moreover, a transcript of the will and letters testamentary, duly certified, is admissible in evidence in any cause. It has evidential force, for it is settled that in an action of ejectment brought by an heir-at-law against a devisee of lands the transcript, if containing proofs showing execution in the manner required by statute, will be prima facie evidence and sufficient to establish title, if not overcome by counter proof. Allaire v. Allaire, 37 N. J. Law (8 Vr.) 312; S. C., 39 N. J. Law (10 Vr.) 113.

One is aggrieved by a decree whose pecuniary interest is directly affected therebjq or whose right of property may be established or divested thereby. Swackhamer v. Kline, 25 N. J. Eq. (10 C. E. Gr.) 503; Andress v. Andress, 46 N. J. Eq. (1 Dick.) 528. TTpon this principle, and in view of the effect of the decree, I think appellant is a person aggrieved, who may appeal and demand the reversal of the decree, if the same is erroneous.

The first ground on which reversal is sought is not maintainable. The proofs before the orphans court justified and required an adjudication establishing the will.

But these proofs were taken without the appellant having been cited, as required, and so without having been given the opportunity to contest contemplated by the statute. She ought to have that opportunity. To simply reverse the decree would do injustice to the parties under the will. They should be given an opportunity to supply the defects in the proceedings and to prove the will.

This court, upon the reversal of the decree, may doubtless remit the record to the orphans court, with directions to cite the persons concerned, and to proceed to hear and determine whether the will should be admitted to probate. But the whole matter is now in this court, which has original jurisdiction over the probate of wills. Under the circumstances, I think that the executor, if he desires, may cite or notice all the persons concerned to appear in this court, at a day fixed, when he will attend with the will and witnesses and proceed to its probate. The executor may elect which course to pursue, and if he elects to proceed in this court no decree will be made until after hearing.


text:
    In the matter of the estate of Charles Myers, deceased.
    [Filed November 14th, 1904.]
    1. Under the statute requiring all persons concerned to be served with citation when a caveat is filed to the probate of a will, the heirs-at-law of testator must be served, though not beneficiaries of the will.
    2. Unfulfilled promises for the payment of money by the widow of testator to a caveator, who withdrew from the contest in reliance thereon, and such promises by the same person to others who did not caveat, though ready to aid in the contest against the probate, but refrained therefrom because of the promises, do not amount to fraud either on the court or on the persons, and are not ground for setting aside a decree of probate of the will.

      3. On rule to show cause why a decree admitting a will to probate should not be vacated, it appeared that the petitioner was sm juris at the death of testator, and had knowledge of testator’s death; that he had a right to file a caveat to the probate of the will, but failed to do so ; that he failed to appeal from the decree admitting the will to probate within the time limited by the statute, and failed to take any action with respect to the contest; that he remained without action for over six years, and until the parties interested had proceeded in the settlement of the estate, and the executor had paid the legacies, the executor’s accounts had been settled and the executor discharged. — Held, sufficient to show such laches as to forbid any action by the court looking to the opening of the decree.
    On appeal from the Cape May orphans court from an order setting aside probate of will.

      Mr. William T. Boyle and Mr. Howard Garrow, with whom was Mr. R. O. Moon (of the Philadelphia bar), for the appellant.

      Mr. McMheiv Jefferson and Mr. John W. Wesaoll, for the respondents.
   Magie, Ordinary.

The Cape May orphans court, on February 11th, 1903, upon a petition of Joseph Iiamseher, directed certain persons, being the widow and children and grandchildren of one Charles Myers, deceased, to show cause before that court, on March 18th, 1903, why a decree, probating the will of said Charles Myers, made June 21st, 1897, should not be set aside and a caveat, which had been put in against its probate, be reinstated. The rule further permitted the parties to take evidence orally before the court upon the coming in thereof, or prior thereto, before -the surrogate. The transcript discloses that upon the coming in of the rulé the parties appeared by proctors, and evidence was taken orally before the court.

On September 23d, 1903, the court ordered that the decree of probate of the instrument alleged to be the will of Charles Myers, which decree was recited to be dated on the 21st day of June, 1897, should be vacated and set aside and the caveat filed by Mary F. De Eoche, of February 3d,, 1897, should be reinstated.

Erom t-lie last-mentioned decree, Charles Myers, a beneficiary under the will, appealed, and the petition of appeal in this court asserts error in the decree appealed from as being-contrary to the evidence and law and not within the jurisdiction of the orphans court.

The decree thus vacated and set aside was shown by the evidence on the rule to show cause to have been made not on June 21st, 1897, but on July 3d, 1897. It was made under the following circumstances: James Myers, named in the will as executor, applied to the surrogate of the county of Cape May on April 14th, 1897, for probate of the instrument as the last will and testament of Charles Myers, deceased, and therein set forth who were the heirs-at-law and next of kin with their relationship to the deceased and their respective residences. Among others, the petitioner, upon whose petition the rule to sIioav cause was allowed, was named. Mary E. De Roche, who was the daughter of the deceased, had at that time filed a caveat against the admission of the will to probate.

The controversy thus inaugurated came on for hearing before the orphans court on June 8th, 1897. Testimony was taken, which appears in the case. After the proponents had rested-their case, counsel representing some of the children and recognized by the court as appearing for the caveator, requested an adjournment for the purpose of looking into the matter, announcing- to the court that if, upon examination, he thought that he could not sustain the attack upon the will, he would inform the court and counsel. The adjournment was to June 22d, 1897. It does not appear that counsel for the caveator appeared’before the court on the adjourned day, but the caveator herself testifies on the rule to show cause that she directed her counsel, who had filed the caveat, to withdraw the caveat. Thereupon a decree was made reciting the presentation to the surrogate of the- will for probate, the caveat of Mary G. De Roche, a daughter and heir-at-law of the deceased, and that

“all parties in interest have been duly cited by the surrogate to appear, and that the court had heard the proofs of witnesses as to the execution of the paper writing propounded and considered them, and that the caveat had been withdrawn by the caveator, and that the court was of opinion that the paper writing was duly executed and ought to be admitted to probate.”

And it was decreed that the same be admitted to probate, and declared, adjudged and decreed to be the last will and testament of Charles Myers, deceased, and that letters testamentary be issued to one of the executors therein named, the other executor having renounced.

Upon the hearing of the rule to show cause, the inventory filed by the executor was put in evidence and disclosed property of the deceased to the amount of nearly $50,000. The final account of the executor was also put in evidence, and a decree of the orphans court made September 20th, 1898, allowing the same as reported and directing that out of the balance, which was found to be over $40,000, certain payments should be made to certain parties named in the will, and that the balance should remain in the hands of James Myers, who was the accounting executor, as trustee under the will. By the account and by a number of releases presented in evidence and duly proved, it appeared that the executor had, before settlement, paid all of the legacies given by the will except those which he was directed further to pay by the decree of distribution.

This was the situation of the estate when the orphans court allowed the rule to show cause, upon which rule and the evidence taken thereunder the decree appealed from was made.

Upon what ground the court acted in making the decree, opening the probate of a will made more than six years before, and after the records of the courts disclosed a final settlement by the executor, allowed by its decree, is not made to appear. The petition of respondent presents two grounds for the allowance of the rule to show cause. It asserts that upon the caveat citations were issued to only a part of the next of kin and heirs-at-law of the deceased named in the application to the surrogate, and that none were issued or served upon many of the next of kin and lieirs-at-law, and that petitioner was not served with citation and had no knowledge of the caveat until several years thereafter. The oilier ground was that the caveat was withdrawn, and parties who would have contested the will were induced to refrain from so doing by fraud.

On the part of respondent it is first contended that the citations appearing in the state of the case were issued to and served upon the executor and beneficiaries under the will, and that no other persons were required to be cited. .

I have lately been compelled to examine the question thus presented with the result that I have construed the statute requiring citation to all persons concerned to include the heirs-at-law. In re Will of Mary G. Young, ante p. 553.

It is further contended that'the adjudication of the orphans court that all the parties interested had been duly cited by the surrogate is conclusive upon the court and not capable' of being contradicted or impugned by the fact that only some citations were found upon the files of the orphans court, or by oral proof that some of the parties were not served with citations.

'Whether the orphans court posseses authority to open a decree probating a will under circumstances such as are disclosed in this case, or whether it may do so upon the absence of citation from the files of the court, or upon proof that the persons upon whom citations should have been served six years before were not served, are questions which I do not think necessary to discuss.

The charge of fraud is thus presented. The caveator testifies that after she had filed her caveat and inaugurated the contest she was visited by the widow of the deceased, who then, and at other times, promised to pay her money if she would withdraw her contest, and that, relying upon such promise, she did withdraw from the contest. There is also evidence that others who did not caveat, but who were ready to aid in the contest against the probate, refrained therefrom because the same person promised them money for so doing. All these persons testify that after the probate the widow refused to perform her promises, and has continued to refuse ever since.

This is the fraud upon which it is insisted the court had a right to act and set aside tire probate and reinstate the caveat. In my judgment, it wholly fails to support such action of the court. It does not disclose any fraud committed upon the court, nor does it evince any fraud committed upon the persons. It merely discloses that they withdrew from the contest relating to their personal rights and interest in consideration of promises which were not performed.

But upon which of the grounds alleged the court acted in making the decree appealed from is immaterial, because I think that no such decree should have been made.

The petitioner knew of the death of the deceased, and was then of full age. He had a right to caveat. While he was entitled to be informed of the contest initiated by the caveat filed, yet, assuming that he was not cited, or that a citation was not served upon him, he had the right to appeal from the decree admitting the will to probate, within the time limited by the statute. In re Will of Mary G. Young, ubi supra. He failed to take any action with respect to the contest inaugurated in the courts of the domicile of the deceased. He remained without action for over six years, and until the parties interested had proceeded in the settlement of the estate, and the executor had paid the legacies and his accounts had been settled and he discharged. This conduct discloses such laches as to forbid any action by the court looking to the opening and vacating of a decree. It would be a menace to every executor and dangerous to every purchaser from him, and disastrous to every beneficiary under a will, to have it understood that a next of kin or heir-at-law may remain quiescent for so long a period and then induce the court to revoke a probate of a will, when witnesses may be dead or disabled, and those whose rights depend upon the will may be without power to make proof of it.

In my judgment, the decree vacating the probate was not justified by the evidence, and should be reversed, with costs.


text:
    In re accounting of William Bayley, administrator of Mary E. Bayley, deceased.
    [Filed November 14th, 1904.]
    1. An administrator of his mother, who had died intestate, leaving a husband and three children surviving her, included in his inventory of her estate twenty-one shares of the stock of a company, at its par value of $50 per share. He filed an account, charging himself with the inventory and praying allowance for the par value of the stock as transferred to the three children. He afterwards filed an amended account, by which he prayed allowance for the stock as erroneously inventoried as the property of the deceased. Exceptions to both accounts were filed by the husband, questioning the right of the administrator to the allowance thus asked and claiming that he should be charged in his account with the stock at its real value. — Helé, that upon the inventory and account the burden of establishing that the stock was not part of the estate of the intestate was upon the administrator.
    2. The administrator did not present sufficient proof of a gift from the intestate to her three children which he claimed, the proofs showing neither donatio mortis causa nor a gift inter vivos, but rather an attempted testamentary disposition, ineffective because not made by will.
    3. The administrator claimed that the husband was estopped from setting up his claim to an accounting for the stock, because he knew that the administrator had transferred it to his sister, brother and himself, and remained silent as to his claim. He had been informed by the administrator that the intestate had given the stock to her three children. — Helé, that in the absence of proof that the husband knew of the facts on which such gift was claimed, or of circumstances which put him on inquiry in respect thereto, an estoppel was not made out.
    On appeal from the Essex county orphans court.

      Messrs. Howe ■& Davis, for the appellant.

      Mr. Jerome D. Gedney and Mr. Frank■ II. Sommer, for the respondent.
   Magie, Ordinary.

Mary E. Bayley died in Essex county, November 24th, 1894, leaving her surviving her husband, Joseph Bajdey, and three children, viz., William, Sarah and Joseph, Jr. William Bayley was appointed administrator of his mother’s estate, and on April 14th, 1902, he filed an inventory of the personal property of the deceased and presented an account for allowance.

The surviving husband of deceased filed exceptions, both to the inventory and account.

In January, 1903, the administrator presented air amended account, to which the same party filed exceptions.

The exceptions, after a number of continuances, were brought to hearing before the orphans court, and testimony was taken thereon in open court, and on January 9th, 1904, the court made a decree allowing some of the exceptions and restating the account so as to charge the administrator with the balance of $6,594.66, and directing that the same should he distributed and paid over to the surviving husband of the intestate.

The administrator has appealed from the decree and all its parts, but the argument here has been directed only to one of the questions raised by the exceptions. .

That question relates to the twenty-one shares of stock of the Pennsylvania Coal Company, of the par value of $50 each, which the administrator inventoried as part of the estate of deceased and as of the value of $1,050. There was an exception to the inventory in respect to the valuation given to those shares, and, in passing, it may be said that the evidence makes it clear that they were worth very much more than par. In the account first presented, accountant charged himself with tire par value of those shares, and prayed allowance, as the case shows, for fourteen shares thereof as of the value at par, and as transferred, seven shares to his sister, Sarah, and seven shares to himself. In the amended account, the administrator charged himself with the inventory, but prayed allowance for the twenty-one shares of stock at its par value, as “erroneously stated in inventory as the property of said Mary E. Bayley.” The exceptions challenged this allowance, and presented the question whether the ownership of the shares was in Mary E. Bayley at the time of her death, so as to require her administrator to account for the same. That is the question argued.

Since the administrator had inventoried those shares of stock as part of the estate of deceased, the court below correctly held that the burden of establishing the fact that they did not belong to her at her decease was cast upon him, and that he was not entitled to the allowance'prayed by his amended account except upon satisfactory proof of that fact.

The court below, upon the evidence, reached the conclusion that the administrator had not established the fact that the shares of stock in question were not the property of the deceased at the time of her death. The administrator claimed that they had been the subject of a gift by deceased, in her lifetime, to her three children, in equal portions. But the court correctly held that tlie evidence did not make out either a donatio mortis causa or a gift inter vivos, but rather disclosed an intent on the part of the deceased to make disposition thereof at her death, which failed to become effective because not made in writing and with the formalities required. The opinion rendered in that court reviews the evidence with care, and reaches the conclusion indicated on grounds which I deem entirely support it.

The result thus reached settles (l).that the administrator was bound to include in his inventory and account the twenty-one shares of stock at their real value, and (2) that he cannot be discharged from accounting therefor, as administrator of the intestate, except upon other grounds. But it was claimed below, and it is strenuously insisted here, that the orphans court erred in making a decree requiring him to account for the value of the stock to the respondent. This is, perhaps, rather aimed at the part of the decree which directed distribution of the whole estate upon such accounting to respondent.

The ground of this claim, as presented, is the conduct of respondent disclosed by the evidence. The facts presented by the evidence are these: The administrator testified that shortly after his mother’s death respondent asked him about the Penns3d.van.ia Coal Company’s stock, and that he replied to him that his “mother had given it to us three children, to have seven shares each, and I was appointed to see that it was transferred on the books of the company, and I was' going to do so.” Shortly afterward the administrator did transfer, on tiro books of the company, seven shares to each child, including himself. Respondent knew of this transfer then or afterwards. Subsequently an offer to buy these shares was made by a circular that offered terms which would amount to $365 for each share. Respondent knew of the offer, but it does not appear that he expressly advised or counseled a sale. But the sale was made, to his knowledge, and each child received the offered amount for each share of the stock. Respondent expressed his gratification at the price obtained.

Upon these facts it is contended that there arose an estoppel by respondents conduct. This is claimed, not so much upon any act of respondent, but rather upon his silence and acquiescence in the transfer of the stock by the administrator to his sister and brother, without asserting any right in himself as entitled to his wife’s personal property. This reticence of respondent and his apparent acquiescence, it is urged, induced appellant to make the transfers, for which he had no compensation, and so to deprive himself of all power to account for the stock except out of his own funds.

If the evidence disclosed that the respondent, during the period in question, had been informed of what had occurred when the intestate was claimed to have made a gift of the shares to her three children, it may be that his conduct might be considered. But that conduct must affect him, if at all, by reason of some knowledge of a right to the stock in him, or at least there must appear circumstances from which he was charged with a duty of inquiry in respect thereto. Knowledge or duty to inquire, whereby knowledge would have been acquired, is essential to an estoppel of the kind claimed. Big. Estop. 528; Mutual Life Insurance Co. v. Norris, 31 N. J. Eq. (4 Stew.) 583; Baldwin v. Richman, 9 N. J. Eq. (1 Stock.) 394; Richman v. Baldwin, 21 N. J. Law (1 Zab.) 403. Where both parties have equal opportunities of knowledge, and both act in ignorance of the real state of the case, such an estoppel will not arise. Mutual Life Insurance Co. v. Norris, ubi supra.

I have searched the evidence in vain to discover that respondent knew the facts on which a gift of the stock by the intestate to her children was claimed. Hor can I discover anything-to put him on inquiry. He was doubtless charged with knowledge that, as husband of an intestate wile, he was entitled to her persona] estate, after payment of debts and expenses of administration. But lie was also charged with knowledge that his wife, in her lifetime, could give away her personal estate so as to exclude his rights. When he was notified by his son that his wife liad given the stock to her children, his acceptance of the information as true, and his failure to inquire further, will not, in my judgment, raise an estoppel, at least until he has acquired knowledge of the real facts.

It appears, by the proofs that family dissensions afterward arose, and respondent consulted counsel. I judge that he had then acquired knowledge of the facts, and he was advised by counsel that they did not establish a gift to the children of the stock. Thereupon the daughter surrendered to him what she had acquired by the sale of her seven shares. To that extent the distribution has been effected, and the decree below only charges the accountant with the value of the fourteen shares. Very shortly after the ascertainment of the facts respondent asserted his rights as husband.

The result is that respondent is not estopped from such assertion. This was the conclusion reached by the orphans court, and neither ground asserted for reversal prevailing, it must be affirmed.

By the decree below the costs of the contest were imposed upon the fund, and as the question presented is novel, I think the affirmance should he without costs of this court.


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    In the matter of the estate of Susan M. Folwell, deceased.
    [Filed November 14th, 1904.]
    A married woman who died leaving a husband and children surviving her, by her will devised and bequeathed to a daughter all the residue and remainder of her estate absolutely, “subject to the legal rights of my husband * * * should he survive me.” — Held, as to the residue of the personal property of testatrix, that her intent was to give the same to the daughter absolutely only in case her husband had predeceased her, and that as the husband survived her, and was entitled jure mariti to his. wife’s personalty, the bequest failed, and testatrix died intestate thereof.
    On appeal from a decree of the Atlantic county orphans court.

      Mr. Norman Grey, for the appellant.

      Mr. John F. Earned, for the respondent.
   Magie, Ordinary.

Susan M. Eolwell, who. died about October 11th, 1902, left a last will and testament, by which, after directing payment of debts and funeral expenses and bequeathing to a son some personal property, she made a disposition of the residue of her estate in the following words:

“I give, devise and bequeath unto my daughter, Elsie Maynard Eolwell (subject to the legal rights of my husband, Thomas G. Eolwell, should he survive me), all the rest, residue and remainder of my estate, absolutely.”

Elsie Maynard Eolwell, named as executrix, presented the will for probate, and it was admitted to probate and letters testamentary were issued thereon October 23d, 1902.

The executrix, not having filed any inventory or made any accounting of the estate, Thomas G. Eolwell, the surviving husband of testatrix, on November 24th, 1903, presented to the orphans court a petition, claiming to be entitled to the entire personal estate of his deceased wife, and praying for an order directing the executrix to file an inventory and to account for the estate, or to be removed from office, &c.

To this petition the executrix filed an answer, claiming that she, and not petitioner, was entitled to the personal estate of testatrix.

The orphans court, being of opinion that petitioner’s claim to the personal estate was good, made a decree requiring the executrix to file an inventory and to account for the same, and the appeal is from that decree.

If appellant’s claim to be the absolute owner of the personal estate of testatrix is correct, she is not bound to file an inventory or to settle her account unless required to do so by the direction of the orphans court. Orphans Court act, § 120, P. L. of 1898 p. 759.

The power of the court to direct and require an inventory and account is to be exercised upon application of some “person interested in the estate.” Upon the petition and answer the court below was therefore required to determine whether petitioner had any interest in the personal estate, and the contention on this appeal is that the court below erred in finding that he had such interest. This question must be solved by determining the meaning of testatrix, as expressed in the clause of her will above recited.

If Mrs. Eolwell had died intestate, her husband would have been entitled to all her personal property, the jus mariti in this respect having been recognized and preserved. Orphans Court act, § 170, P. L. of 1898 p. 780. But Mrs. Eolwell died testate of a will, which she had power to make. The power of a married woman to make a testamentary disposition of property was, at the time this will was made and became effective, conferred by section 9 of the “Act to amend the law relating to the property of married tvomen,” approved March 27th, 1874, (2 Gen. Stat. p. 2012), which section is in these words:

“That any will or testament hereafter made in due form of law by any married woman above the age of twenty-one years, of any real or personal property, shall be held to be as valid and effectual in law as if she were, at the time of making the said will, and at the time of her death, an unmarried woman; provided always, that nothing herein contained shall be so construed as to authorize any married woman to dispose, by will or testament, of any interest or estate in real property to which her husband would be at her death entitled by law; but such interest or estate shall remain and vest in the husband in the same manner as if such will had not been made.”

This section extended to a married woman power to dispose of her property by will beyond that which had been conferred on her hv the supplement to-the Wills act of April 12th. 1864 (P. L. of 1864 p. 698), which supplement was repealed in the revision of 1874. Rev. p. 1390.

The legislation of 1864, in giving to a married woman power to make a will as effectual as the will of an unmarried woman, limited the power so as to preserve any interest in her real or personal property which her husband would have had at her death, which interest the act declared should remain in him as if the will had not been made. The ninth section, above quoted, gives to married women the same power, limited by a proviso, preserving, as against her will, any interest in real estate to which the husband would be entitled by law at her death. It does not admit of question that a married woman may now dispose of all her personal property by will, and that without the consent of her husband, and if she has done so her husband has no interest therein after her death.’ Stoutenburgh v. Hopkins, 43 N. J. Eq. (16 Stew.) 577; S. C., 45 N. J. Eq. (18 Stew.) 890. If she dies leaving a will disposing of only a part of or interest in her personal property, so that as to some interest therein she dies intestate, the husband’s rights attach to that interest. Nelson v. Nelson, 57 N. J. Eq. (12 Dick.) 118.

If the clause in question had omitted the parenthetical sentence, its effect would have been entirely clear. It would have vested in the daughter all the personal estate of testatrix absolutely, and all the real property subject to the husband’s estate by the curtesy, if he survived her, and would have such an estate by her death.

But testatrix chose to make her bequest and devise in this language, “subject to the legal rights of my husband, if he survive me.”

On the part of the appellant, it is contended that the words in parentheses must be construed as limited in effect to the testatrix’s real estate, the interest of the husband in which was by marriage and birth of issue an estate for life, if he survived her. I am unable to yield to this contention.

In the first place, it was wholly unnecessary to express the idea that her devise of real estate was subject to her husband’s right if he survived her, for that right could not have been affected by her will, even if the parenthetical sentence had been omitted.

Again, the expression “legal rights of my husband, should he survive -me,” is as applicable to his rights in personalty as to those by the curtesy in realty. The Married Woman’s act destroyed the estate by the curtesy initiate. Porch v. Fries, 18 N. J. Eq. (3 C. E. Gr.) 205; Hall v. Otterson, 52 N. J. Eq. (7 Dick.) 526; S. C., 53 N. J. Eq. (8 Dick.) 695; Trade Insurance Co. v. Barracliff, 45 N. J. Law (16 Vr.) 543. But the estate by the curtesy of a husband surviving his wife, who died seized of lands, was not affected thereby. Vreeland v. Ryno, 26 N. J. Eq. (11 C. E. Gr.) 160; Colgan v. Pellens, 48 N. J. Law (19 Vr.) 27; S. C., 49 N. J. Law (20 Vr.) 694; Middleton v. Steward, 47 N. J. Eq. (2 Dick.) 295. The husband’s curtesy in real estate has, since that time, accrued at the prior death of his wife. Ilis rights in her personal property accrue at the same time.

Contrary to my first impression, I have reached the conclusion that the intent of testatrix expressed in this clause was, so far as it affects personal property, to vest in the daughter an absolute right thereto in case textatrix’s husband died before his wife, but in case he survived testatrix, to make no disposition of the personal estate and to die intestate thereof, so that his right therein on surviving her would become absolute. Ho other construction of the will gives reasonable effect to the language used.

It results that the decree appealed from was correct, and must be affirmed.