text:
    Harry C. Dilatush v. Edna R. Dilatush.
    [Submitted June 26th, 1916.
    Decided July 12th, 1916.]
    1. In a husband’s action- for divorce on ground of adultery, evidence Meld circumstantially to prove defendant’s guilt.
    2. A husband’s desire to be rid of his yife, allowing her to pursue her own course, and failing to prevent her from committing adultery, is not such connivance as prevents him from securing a divorce.

      Mr. John H. Kafes and Messrs. Hutchinson & Hutchinson, for the petitioner.

      Mr. Ilervey 8. Moore, for the- defendant.
   Backes, V. C.

The petitioner charges his wife with adultery, alleged to have been committed with one Clement. She counter-charges, naming one Cassie Olden and a woman named Helen. The evidence does not sustain the cross-petition and it will be dismissed.

The parties were married September 2d, 1914, and after a short and unhappy existence, separated a year and two months later, under articles. One child was born to them. After the separation, the defendant, a young girl, with her infant, took up her residence at a boarding-house on Arch street, Philadelphia, and joined a theatrical company. Shortly afterwards she moved to a rooming-house, No. 109 North 19th street. On the morning of January 1st last, about three-ten, the petitioner, with three detectives, found her in her bedroom with the corespondent. She was undressed, except as to a night-gown and a kimono. Clement had his coat, collar, tie and shoes, or shoe off, and some of the witnesses say he was holding up-his pants. The folding-bed in the room was open and mussed. The haby was on it asleep. • The defendant and Clement were fellow-boarders at the Arch street house, and after she took the room at the North 19th street house, Clement was a frequent visitor both day and night. On New Year’s Eve the two left the house shortly after seven o’clock and went to a theatre. The rest of the evening, and until two-thirty in the morning, they, with another couple, spent at a dance and in cafes, all drinking more or less. Their companions were a man called “Doc,” the room-mate of Clement at the Arch street boarding-house, and a girl of the name of Algor, who, apparently, came to Philadelphia purposely to spend New Year’s Eve with him. I fear that their friendship was not of the platonic variety. On the way home the couples separated, Clement and the defendant arriving at the latter’s room at two-thirty a. m. They had stopped on their way to buy sandwiches. At three-ten the detectives knocked on the defendant’s bedroom door. Her room was on the first floor front. The knocking was repeated three or four times, and after some commotion inside, the door was opened by the defendant and the detectives and the petitioner entered. The gas light was burning low. A picture of Clement was hanging on the wall and the sandwiches were untouched. There is some difference in the testimony as to what followed in the excitement. It does not appear that the defendant, at the time, directly denied her guilt, but she did characterize the affair as a “frame-up,” and accuse Clement of being a party to the plot. "Whether Clement used words of endearment towards the defendant, and promised to take care of her and the baby, is not the recollection of all of the witnesses. That the defendant was agitated and highly indignant, due to a feeling that her confidence had been betrayed by Clement, all agree. The defendant and the. co-respondent, positively deny wrong-doing. The co-respondent says he had intended spending the remainder of the night in the defendant’s bedroom, because he did not care at that hour of the morning to go to his boarding-house, and that on the way to the defendant’s room he gave some intimation of this. He says he took off his coat and his shoe from his lame foot because it hurt him. The defendant says that when they got to the room, Clement told her of his intention to stay and his reasons, and that after protesting and being persuaded by him that it would not be wrong if he remained, she consented. She says she undressed in his presence, but without exposure, being shielded by a bureau, and that he, during the operation, turned his head. She also claims that she responded promptly when the knock came at the door. The explanations of Clement’s presence in the room are so weak and incredible as to fall with their utterance, and they likewise destroy any value which otherwise might be given to the denials of guilt. In the face of the uncontroverted circumstances already pointed out, and others to which allusions will be immediately made, there can be no doubt, it seems to me, of a criminal attachment between the two. If, as the defendant says, she permitted Clement to remain simply as a matter of shelter and because she could not turn him away after his kindness of the evening before, why did she disrobe? Wiry, for pastime’s sake, at least, weren’t the sandwiches eaten during the forty minutes they were in the room together? If Clement’s presence was innocent, why the door closed and the light turned low? And why wasn’t the door opened immediately ? Only a few days before, Clefnent was in the room alone with the defendant about midnight and for more than a half-hour. That evening had been spent at a dance at the Bingham House. They were constantly together by day and night before and after the escapade of New Year’s and why? He says, out of pity, and she says, due to comradeship. If these were the only motive and object, there could be little cause for complaint, but there were others and of sinister tendencies. He called her by her first name, and sometimes “Dear,” jokingly, he says. Why his picture prominently hung on the wall of her bedroom ? What hold did the defendant presume she had upon. Clement’s affections when she remonstrated with him for looking at another girl? He testified that one Sunday afternoon, while he was in her room, she asked him what he was looking at, and being told that it was a good-looking girl who was passing by, she said, “My husband used to do these things to me and I resented them, and I resent them more so from you, being a stranger.” And, if her relations with Clement were pure, why did she permit him to upbraid her for hep conduct, and to insist upon this as a right, because he was putting up the “dough?” And, why put up the “dough” at all, unless his interest in her was that of criminal intimacy? Mrs. Hart, the keeper of the rooming-house, overheard the quarrel, and it is admitted that Clement paid her $2 to release the defendant’s wearing apparel when she finally left.

Hpon the argument, counsel for the defendant urged that the view I took of the defendant’s conduct in the case of Cooper v. Cooper, 82 N. J. Eq. 581; affirmed, Ibid. 660, ought to influence and control me in the present ease. At a glance it will be seen that the circumstances are altogether different. In that case, it is true, Mrs. Cooper disregarded conventionalities to a marked degree, but the controlling factor of the decision was the entire absence of depravity in her make-up. This element, present or absent, is most important and potential in making for guilt or innocence. In the present case, we have a different sort of a woman to deal with. Her admitted derelictions speak strongly against her plea of innocence. The fact that she undressed in the presence of the co-respondent shows a reckless spirit, a disregard for decency and an utter lack of honor and sense of shame. Her conduct while living with her husband is also an indication of her moral code, and of her inclinations. A policeman testified that upon two occasions he saw her on the streets of Trenton after two o’clock in the morning, walking with a man of whom her husband was, undoubtedly, jealous; at one time linked arm in arm with him. The happenings may have been innocent, but they were left unexplained by the defendant. Hpon another occasion, after theatre, she flirted with a stranger, a soap salesman, and with him went to a hotel where they drank until one o’clock in the morning.

The ease made against the defendant, of course, is purely circumstantial, and if the facts can, in anywise, be reconciled with innocence, we must adopt that view. We ought not to move upon the outward appearance of things merely, for they ofttimes belie the truth, and we should mot judge and condemn even though they arouse profound suspicion. The circumstances must be such as to lead the guarded discretion of a reasonable and just mind to a satisfactory conviction that the crime has been committed. Here, the general tendency and predisposition of the defendant towards waywardness; the great and unsatisfactorily explained intimacy between her and the co-respondent, and the unrestrained freedom and liberties with each other, when coupled with the flagrantly compromising situation in which they were found on New Year’s morning, leave not the shadow of a doubt in my mind of their guilty love, and that they availed themselves of their many opportunities to gratify their lust.

Though the defendant be guilty, it is argued that the petitioner is not entitled to relief because of connivance at his wife’s crime. Of this, there is no proof whatever. The unholy alliance which sprung up between the co-respondent and the defendant, after her separation from her husband, and which has resulted in such dire- consequences to her, was in nowise contrived, invited m encouraged by the petitioner. It was solely the work of tin- defendant. Suspecting her infidelity, the petitioner set n watch upon his wife to obtain proof. While it was in the power of the petitioner to prevent the crime on New Year’s morning by intercepting his wife, he was not called upon to do s) by that duty 'of protection which is ordinarily required of a husband. He was. strictly within his rights in refraining; and culpability cannot be imputed to him for allowing his wife to avail herself of the opportunities she created for indulging her licentious desires. Warn v. Warn, 59 N. J. Eq. 642; Lehman v. Lehman, 78 N. J. Eq. 316.

But, it is insisted, that, even though he did not directly contrive the immediate offence of which his wife stands convicted, the petitioner is barred, because, while living in the marital state, his chief desire was his wife’s downfall, and by his whole course of conduct towards her contributed to that end. And, in this connection, it is contended that the separation agreement was the perfection of a scheme on his part to give her liberty and license and pave her way to ruin, which he conceived would be the culmination. That the petitioner fell far short in the discharge of his marital obligations; that the marriage ties were irksome and distasteful, and that he wanted to be rid of his wife; that his deportment and altitude towards her, and his shameless disclosures of their' bed-chamber secrets to his companions, were most despicable, cannot be questioned. That he was willing to give his wife a free rein to perdition, if she so chose, I have no doubt. She went hex way and sinned, not by his procurement, but of her own volition. His conduct, reprehensible as it was, was not connivance in the legal sense, as laid down by the authorities, and he cannot be deprived of his right to a decree.

The infant is now in the custody of the mother of the defendant, a respectable and refined woman, as she appeared to be, from my observation, while on the witness-stand. The custody of the child will be awarded to the mother so long as it remains in the care of the grandmother, and the petitioner will be-compelled to provide for its support.


source: Caselaw Access Project

author: Backes, V. C.

license: Public Domain

text:
    Eva Goldstein v. Hyman Goldstein et al.
    [Submitted June 6th, 1916.
    Decided July 14th, 1916.]
    1. A betrothal and a nuptial contract or certificate, made according to the Hebrew faith, whereby the husband bound himself and his heirs for the payment or contribution to the dower of an amount equal to that brought in by the wife, and as security therefor pledged all of his present and after-acquired possessions, without disclosing to whom or when the dowry was to be paid, was not an enforceable obligation between the husband and wife.
    2. Such contracts created no trust on the part of the husband in favor of the wife.
    3. Under such contracts, imposing obligations on the husband by operation of the laws governing the Hebrew race, of which obligations the contract was only partly evidential, and where such laws and customs were not put in evidence, the court could not take judicial notice of them, even though they were in concrete form and it knew where to find them.

      4. Under the common law, the wife’s property passed to the husband by virtue of the marriage contract, her compensation being her dower.

      Mr. Henry 8. Alvord> for the complainant.

      Mr. Alberl S. Woodruff, for the defendants.
   Backes, V. C.

This suit is in the nature of a bill for the specific performance of a contract. ’ It is filed by a wife against her husband, for the restitution of her dowry and paraphernalia. The parties are Hebrews, and were married according to the laws of that faith, September 8th, 1914. They lived together until the following August, when the husband compelled his wife to leave him. The marriage was preceded by a betrothal contract, the pertinent features of which read as follows:

“First: The afore-mentioned bridegroom binds himself to wed the aforesaid bride as Ms wife with a ceremony of. canopy and sanctification (Chupah and Kidushi) according to the rite of Moses and Israel. They shall not have any secrets nor deceive one another in any matter concerning money and they shall share in their possession, just portion and portion as is the universal custom.
“And the bridegroom binds himself to give presents to the bride according to the custom.
“The aforementioned bride obligates herself to bring in as dowry the sum of $5,000 and clothing, beddings and trousseau, according to the manner of the prosperous.
“All this is entered into with the full and conscious understanding, and in the best manner according to the ordinances of our sages, and according to the law of the land, with hand-clasping and after a thorough reading, with a ‘Kinyan’ (formality of binding an agreement), to take effect immediately, entered into without coercion, never to be revoked, with a valid ‘Kinyan’ (formality of binding agreement).”

It was further stipulated that the wedding was to take place on or before September 10th, and that the penalty for a violation was $10,000.

Upon the execution of this contract, the father of the wife obtained a certificate of deposit for the amount named, from a trust company, made out in the name of the husband and wife, payable ten days after the marriage. The amount of the dot was arrived at only after considerable discussion and negotiation by the two men. The husband held out for $10,000, while the father insisted upon the figure which was finally agreed upon. This sum, the husband says, was given to him as an unconditional gift, and I am inclined to believe that that was his understanding as well as the understanding of all concerned. At the wedding ceremony, he, however, entered into a contract, the printed form of which, in the Aramaic dialect, literally translated, reads thus:

“On tlia day and date aforementioned, and in the year aforesaid, since tlie creation of the world; in accordance with onr computation of time * * * in the said city (it is set forth) how this man, aforementioned, said unto the aforesaid maiden, ‘Be thou my wife according to the law of Moses and of Israel, and I will labor (to maintain thee) honorably and to nourish and sustain thee, according to the practice of the Jewish men who labor for the honorable maintenance of their wives whom they truly nourish and sustain; and I grant thee as spousal gift the aforementioned which is due to thee; I also bind myself to provide thee with food, raiment, and all thy necessaries, also to visit thee after the manner of the world.’
. “Thereupon the said worthy maiden consented to become his wife and brought unto him the dowry given her by her family consisting of gold and of silver, of ornaments and of garments, of furniture and of bedding, all of which this' man aforementioned, the bridegroom, to wit, accepted in the sum aforementioned * * * this man aforesaid * * * to wit the bridegroom, also agreed to add thereto and to give her a sum to equal the sum mentioned above * * * the grand total being the sum aforementioned * * * this sum aforementioned * * * the bridegroom, to wit, said ‘By virtue of the certificate I hereby accept the responsibility to the integrity of this dowry and of my addition thereto, for myself, and my heirs, that will follow me, to compensate with the most valuable of my estate and possessions, which I do possess, anywhere beneath the shy * * * that which I have bought already and that which I may buy hereafter — whether of land or of goods and chattels, all of which I hereby pledge as security and hold them subject to the collection of the sum set forth in this certificate, to wit, the amount of this dowry and of my addition thereto; even pledge the very cloak I wear on my shoulders in payment, during my lifetime and after my lifetime, from this day forever.’
“Thus did this man aforementioned, the bridegroom, to wit: take upon himself, in accordance with this certificate, the responsibility for this dowry and the addition thereto. This certificate is subject to strict enforcement the same as all certificates of dowrys and the addition thereto that is customary among the daughters of Israel, which are drawn up according to the form prescribed by our Sages of blessed memory and which is unlike a voucher or a blank certificate.
“We have purchased the right of this man, namely, the bridegroom and have vested it in this worthy woman aforementioned — namely this maiden, to all that is written and set forth in the aforegoing — by means of an article with which the right and title may be properly purchased; all of which is thus established and remains in force.”

I question very much whether any of the parties understood the contract in the sense now sought to be given to it by the wife, and especially that portion which seems to bind the husband to contribute to the dowry an amount equal to the sum brought in by the wife, because it appears to have been no part of the verbal arrangement.

The theory of the bill is that the betrothal and nuptial contracts created a trust, held by the husband, in favor of the wife, and the prayer is that the husband be removed and a new trustee appointed, and that he be decreed to pay over the funds and deliver up the paraphernalia, and that the trust be impressed as a lien upon the real estate in which the dowry was invested. The documents certainly disclose no contractual obligations enforceable between husband and wife, and of and in themselves create no trust in favor of the wife. According to the nuptial contract, the husband bound himself and his heirs for the payment of the dowry and in addition and as security he pledged all of his then and after-acquired possessions. To whom and when, the dowry was to be paid, is not disclosed, 'and in this respect, whatever obligations were imposed upon the husband arose by operation of the laws governing the Jewish race, of which obligations the contract is only partly evidential. For its interpretation, we must resort to the laws of Israel and the customs as prescribed by the sages spoken of in the contract. These laws and customs were not put in evidence, and we cannot take judicial notice of them, even though they were in concrete form and we knew where to find them. The practice among the children' of Israel varied from time to time, as history discloses. At one time the bridegroom named a price or ransom to the father of the bride; Abraham sent costly gifts to Eebeka-h when he bethrothed her, and Jacob served Eaban fourteen years for his two daughters; while on the other hand, Solomon received from Pharaoh, his father-in-law, a city as the portion of the princess. 4 Jewish Encyc. 645. What the present state of the Eabbinie law is in relation to this sort of dowry, we are not informed, and whether the dowry is a trust enforceable under our system of jurisprudence, need not now be passed upon. .We have nothing analogous in our judicial polity, and upon the documents in the case standing alone, no recovery can be had by force of our laws or by our judicial methods. Louisiana is the only state in the Union in- which these conventions are recognized and enforced, and there by the code founded upon the Spanish and French laws. They are also in common practice in Continental Europe. In the common law of England they are unknown. Until modified by statute, the wife’s property, under the common law, passed to the husband by virtue of the marriage contract. Her compensation was her dower fixed at a one-third interest for life in her husband’s realty at the time of his death, and we are of the’opinion that her right to alimony, in a measure, springs from the same source.

As gathered from the books which have been examined, relating to contracts of this kind, the husband owns the dowry and is entitled to the usufruct during his lifetime, and may dispose of them for that period. This is according to the code of Louisiana. The husband may, however, be called upon to account for the dowry in the event of a divorce or judicial separation. Otherwise, his estate must respond at his death only. This also seems to be the Jewish law, and if this be so, the present action is prematurely brought. The complainant has not been divorced nor judicially separated.

Diligent search by counsel and the court has failed to discover a single case in England or this country, where the common law prevails, where a nuptial contract like the present one, was sought to be enforced. This may be attributed to the difficulty of establishing a trust recognizable by our law, or to the fact that the Jewish people settled difficulties of this kind in the Eabbinie courts.

The claim for the paraphernalia was not pressed on the argument, the only subject debated being the dowry, and it is, therefore, to be regarded as waived.

The relief prayed for will be denied.


author: Griffin, V. C.

text:
    Mathias Last v. John Winkel et al.
    [Submitted January 10th, 1916.
    Decided January 18th, 1916.]
    Where complainant foreclosed his first and fifth mortgages, making the second, third and fourth mortgagees parties, and the premises realized a sum insufficient to pay the second, third and fourth mortgagees after satisfying the complainant’s first mortgage, complainant is not entitled to have the receiver collect the rents and apply the same in favor of his subsequent encumbrance.
    On bill to foreclose.

      Messrs. Gross d Gross, for the complainant.

      Messrs. Herrmann & Steelman, for the defendants, Miller and Nadel.

      Mr. Peter Stillwell, for the defendant Monroe Eckstein Brewing Company.
   Griffin, V. C.

The complainant foreclosed his first and fifth mortgages, making the second, third and fourth mortgagees parties. The premises realized at the sale a sum insufficient to' pay the amount due upon the second, third and fourth mortgages after satisfying the amount due the complainant upon his first mortgage. The complainant now seeks to have the rents collected by the receiver appointed in the cause applied on account of the amount due upon his-fifth mortgage, to the exclusion of the second, third and fourth mortgagees, founding his claim upon the allegations and prayer of his bill.

In the stating part of his bill, the complainant says, in effect, that his application for the appointment of a receiver of rents is made to have the rents collected applied first in reduction of his fifth mortgage debt. The order to show cause made upon the bill does not disclose the purpose of the complainant to ask that the receiver, if appointed, should apply the rents in reduction of his fifth mortgage indebtedness, to the exclusion of prior encumbrancers. The order appointing the receiver is in the usual form, containing no adjudication of the rights of the parties in the rents, when collected. The complainant is' therefore not entitled to have the rents appliéd in favor of his subsequent encumbrance. New Jersey Title Guarantee and Trust Co. v. Cone & Co., 64 N. J. Eq. 45.

An order will be advised, directing that the moneys in the receiver’s hands be disbursed according to the order of priority ascertained by the final decree.


author: Foster, V. C.

text:
    Frank B. Allen, executor, &c., of George D. Moore, deceased, v. Harriet E. Moore et al.
    [Submitted May 1st, 1916.
    Decided June 27th, 1916.]
    1. Where testator provided that the residue of his estate should be divided among the legatees in proportion to their moneyed legacies, and two of the legatees predeceased' him, their shares lapsed into-the residue and did not become intestate property.
    2. A residuary clause presumably indicates the testator’s intention to dispose of all his personal property.
    3. A lapsed legacy goes to the residuary legatee or legatees.
    On petition for construction of will. Heard on bill, petition, answers and stipulation of counsel as to facts.

      Mr. Benjamin J. Fleuchaus, for the petitioner.

      Mr. John B. Hardin (of Pitney, Hardin & Skinner), for the defendant Erancis D. Stanwood.

      Mr. Alfred F. Stevens, for the defendant estate of Mary S. Moore, deceased.

      Messrs. Lehlbach & Van Duyne, for the defendant Adeline H. Walsh and Bobert E. Walsh,, individually, &c.

      Messrs. McCarter & English, for the defendants Board of Home Missions of the Presbyterian Church in the United States of America, and Board of Eoreign Missions of the Presbyterian Church in the United States of America.

      Messrs. Cortlandt & B. Wayne Parker, for the defendant Presbyterian Board of Belief for Disabled Ministers and the Widows and Orphans of Deceased Ministers.

      Mr. Fred. Q. Stickel, Jr., for the defendants George Moore Beuck, Hattie Beuck Schmidt and Bessie A. Stanaback.

      Mr. Charles B. Clancy, for the defendant Protestant Poster Home Society.

      Mr. Frederick G. Burnham, for the defendant Board of Church Erection.
   Foster, V. C.

Tile petition in this case is filed by the executor of George D. G. Moore, who died October 13th, 1891, leaving a last will and testament dated June 17th, 1889, and two codicils thereto dated respectively January 24th, 1891, and October 5th, 1891, which were duly admitted to probate in Essex county. Testator left a widow but no issue.

The will, after directing the payment of debts and funeral expenses, gives a large number of general and specific legacies to relatives and friends of the testator, among them a bequest of $10,000 is given by the fourth clause of the will to George DeGraw Moore, a nephew of the testator, and a bequest of $250 is given by the eleventh clause of the will to George Moore, a great nephew of the testator. George De Graw Moore and George Moore both died in April, 1891, about five months before the death of the testator.

By the twentieth clause of his will, testator gave all the rest and residue of his estate, including the interest and accumulations thereon and also $10,000 of which his sister was to have the income for life, to his executors in trust for the purpose of establishing a home for respectable aged people of both sexes, if in the judgment of his executors it was deemed advisable to do so, and if this home was not established within five years from the death of the testator, then he directed his executors “to divide and distribute the said residue pro rata among the legatees above named, and in proportion to their respective moneyed legacies.”

By the twenty-second clause of the will he directs that for all the purposes of distribution the whole estate, real and personal, is to be taken and considered as personal property.

By the first codicil some minor changes are made regarding some of the bequests and he authorized his executors in carrying out the trust mentioned in the twentieth clause of the will to unite with some existing home or institution.

By the second codicil executed on October 5th, 1891, a few days before testator’s marriage and death he directed:

“First. As to the residue of my estate given to my executors in trust by the twentieth clause of my will — in place of that — I give to my executors in trust the sum of fifty thousand dollars, the interest thereon to be paid to Mary S. Bitch (with whom I am shortly to be joined in marriage) during her life in semi-annual payments, the first to begin at six months after my death, and at her decease, said sum of fifty thousand dollars to go as provided in said twentieth clause subject to the same conditions as in said clause mentioned, and also the modifications of the same contained in the'prior codicil dated January 24th, 1891, said bequest to be in lieu of dower in my estate. And in case said residue shall not amount to the sum of fifty thousand dollars then I direct that the other legacies (except that to my sister and that to the cemetery company) shall abate in proportion so that at all events the sum of fifty thousand dollars shall be available for said purpose.”

The estate proving insufficient to pay all debts, legacies and exj>enses, and to create a trust fund of $50,000 for the benefit of the widow, proceedings were had in this cause whereby directions were given that the legacies should abate in proportion for the purpose of creating this fund. Moore v. Moore, 50 N. J. Eq. 554.

Mrs. Mary S. Moore, the widow of the testator, died July 11th, 1908.

The executor in the exercise of his judgment deemed it advisable not to establish the home for aged people.

On November 7th, 1913, the final account of the executor and trustee was duly allowed by the decree of the Essex county orphans court, and the executor now has in hand, after the payment of all debts, expenses and legaices, $21,972.68, to distribute according, as he assumes, to the provisions of the twentieth clause of the will pro rata among the moneyed legatees mentioned in the will.

By the stipulation of counsel three questions designated therein as “A,” “B” and “O,” were submitted for determination; and on the argument before me, by the consent of all parties, the following entry was made upon the record:

“The questions referred to in ‘B’ and ‘C’ in the stipulation were disposed of by V. C. Emery orally at the time of the az-gument befoz-e him last summer, and under his oral decision at that time counsel are all agreed that Mrs. Stanwood, under section 23, is entitled to $250 and Mrs. Sarah Walsh is entitled to like amount, and that the proprietors of the Rosedale Cemetery are not entitled to have any further payments made to them beyond what has already been paid, that both the Stan-wood and Walsh legacies are money bequests under the will.”

This leaves for determination the questions raised by the paragraph designated as “A” in the stipulation, and which reads as follows:

“(A) Is this sum of $10,250, which was bequeathed to George De Graw Moore, under subdivision ‘fourth’ of said will, and to George Moore under subdivision ‘eleventh’ of said will and the balance now in the hands of the executor, or any part of it to be considered to have lapsed into the rest and residue of the estate of the testator and if so what part and to whom should it be distributed or should the testator be considered to have died intestate so far as these two legacies are concerned, and if so to whom should the said sums be distributed?”

These questions arise because of'the contention made by the representatives of Mrs. Mary S. Moore, the widow of the testator to the effect that these two legacies to testator’s nephews, who predeceased him; amounting to $10,350 lapsed by reason of the death of the nephews in the lifetime of the testator; and that these lapsed legacies did not become part of the residuary estate because the nephews were both general and residuary legatees. That they became residuary legatees by reason of the fact that money had been bequeathed to them respectively under the fourth and eleventh clauses of the will, and that the second codicil and the twentieth clause of the will, directed the distribution of the residue among the moneyed legatees named in the will.

The insistment is made that as to these lapsed legacies testator died intestate, and that they are to be distributed under the statute, and that as this was the condition existing at the death of the testator, his widow then, or her representatives now, are entitled tq one-half the amount of these lapsed legacies.

Support is sought for this contention in the rule stated in Collins v. Bergen, 42 N. J. Eq. 57, that “when an aggregate fund is given to several' persons nominatim, to be divided among them in equal shares, if one of them dies before the testator the share of such decedent will lapse;” and at page 60 of this case the statement is made tli|it “the shares of Harriet Kemble and Rachel Collins who died in testator’s lifetime,- lapsed and being shares of the residue they did not pass to the other legatees as part of the residue (Hawk. Wills 42), consequently the testator must be held to have died intestate as to them.”'

There is a clear distinction to be noted between the situation presented by the facts in this case, and that present in Collins v. Bergen, supra, and in the cases cited to support the text in Schoul. Wills (3d ed.) § 519, in which this rule is discussed.

These are cases in which the testator either gave the residue of his estate to certain persons named, or definitely designated, to be divided among them in stated proportions; or cases in which the general legacies lapsed because of their illegality, and not because of the death of the legatee in the lifetime of the testator. In the first class of cases the devises or bequests were held to have been made to individuals and not to a class, and that in the absence from the will of any provision for survivor-ship or substitution, such devisees or legatees took as tenants in common and not as joint tenants.

In Security Trust Co. v. Lovett, 78 N. J. Eq. 451, Vice-Chancellor Learning states that the rule applicable to bequests of this kind is that “where a gift is to several persons by name, a presumption arises, in the absence of contrary intent apparent on the face of the will, that the persons named are to take in their indiyidual, and not their collective capacity, even though the persons as named constitute a class. In such case the bequest lapses as to any one of the persons named who may be dead at the time of the death of the testator. * * * The. presumption referred to, however, is but a rule of construction to be used in the ascertainment of the intention of testator; the presumption is not conclusive. If it. sufficiently appears from the will that it was the intention of testator to make a bequest to a class, a,s distinguished from the individuals who may compose the class at the time the will was made, the death of one or more of the persons before testator will not cause a lapse of any part of the fund, but the survivors of the class will take the whole; such an intention may be manifest even when the persons comprising the class are named.”

In other cases in which this rule ¿ras been followed, it has been limited in its operation to legacies that have lapsed by reason of their invalidity, and it has not been extended to cases where the legacy lapsed by reason of the death of the legatee before the testator, the reason for this limitation being that the will speaks at the death of the testator, when he may be supposed to know of the death of the legatee, and for that reason he is presumed to have intended to include the subject of the lapsed legacy in the residuary clause, but that the same reasoning is not sound in regard to legacies declared void, for in such cases, .testator at his death has thought he had made an effectual disposition of the subject to one and cannot be presumed to intend to give it to another. Lea v. Brown, 56 N. C. 141; Allison v. Allison, 56 N. C. 236.

In this case the deceased nephews of the testator are not specifically named as residuary legatees, nor is any other person so named. By the second codicil, the fund of $50,000 which testator terms the residue of his estate, is to be distributed, in accordance with the provisions of the twentieth clause of the will, and these provisions direct that the residue be divided and distributed pro rata among the legatees named in the will in proportion to their respective moneyed legacies.

To entitle the representative of Mrs. Moore to prevail under the rule of construction they invoke, they must show that testator’s nephews were both general and residuary legatees, that the bequests to them of a share of the residue was to them in an individual and not in a collective capacity, and that testator has not made an effectual disposition of their shares of his estate, and that as to such shares he died intestate.

In ascertaining testator’s intention regarding the distribution of this residue of his estate, it should be borne in mind that he was a competent lawyer, that he had a very extended experience in the construction of wills as surrogate of Essex county for a number of years, that the second codicil, by which he designated this fund as the residue of his estate, was executed some months after his nephews had died, that by this codicil he changed the entire disposition of his estate and indicated that the principal objects he sought to accomplish by his will and codicils were to provide for his sister and his widow, and for the care of his burial plot, and to this end he directed that all bequests given by his will should abate, if necessary, to carry out these purposes, and he further directed that the provision made for his widow should be in lieu of dower.

He evidently had no intentions of dying intestate, as pointed out by Vide-Chancellor Yan Fleet in Moore v. Moore, supra. He not only attempted to dispose of everything he owned, but actually made provisions by the will and codicils disposing of about $108,000 while his estate amounted to but about $60,000.

To hold that testator intended that these lapsed legacies of his nephews should not fall into the residue of his estate, but should go to his widow and next of kin, together with the deceased nephews’ share of the residue, if they were entitled to any, would require the most technical construction of the will and codicils, and would do violence to the manifest purposes of the testator, and would be in conflict with the construction which the widow herself placed upon the testatmentary papers.

Eor seventeen years from testator’s death in 1891 to her death in 1908, Mrs. Moore enjoyed the income from the fund of $50,000, which had been.created for her by the abatement of all the legacies, and by the inclusion therein of the amount of the two legacies in question. 'During all that period she never asserted that these legacies had kpsed and that as to them, testator had died intestate and that she as a widow was entitled under the statute, to one-half of their amount, it was left for her personal representatives to make that claim, and to support it they must take the position that while testator thought the income of $50,000 to which he expressly limited her interest in his estate, sufficient for his widow, for whose care the second codicil shows him to have been especially solicitous, yet that on the death of his widow he intended to die intestate as to nearly one-fifth of his estate, and that her personal representatives, none of whom are mentioned or referred to in the will or codicils, should have this portion of his estate in preference to his relatives and friends whom he sought to make the objects of his bounty by the provisions of his will.

I think it apparent from the will and codicils that testator did not intend to die intestate as to any part of his estate, and that he succeeded in avoiding any intestacy by the provisions made for the distribution of his estate, including the residue, which he directed to be distributed among those to whom he gave money bequests in his will, as a class, and not as individuals, in proportion to their respective moneyed legacies, and that he had a class instead of individuals in mind, in the distribution of. the residue, is further apparent by his inclusion therein of Mrs. Stanwood and Mrs. Walsh as moneyed legatees, who otherwise might not have been so regarded, and by the limitation of the amount to be paid to the cemetery company as a residuary legatee to $100, although he had made a moneyed bequest of $400 to the cemetery company by his will.

Another significant circumstance indicating testator’s intent is the fact that the second codicil was made months after the decease of the testator’s nephews, when it is not unreasonable to suppose that he knew of their death, and he evidently thought the provisions he had made in this codicil, and in the twentieth clause of the will referred to therein, were sufficient to dispose of the residue of his estate as he desired, without further direction, and serves to indicate that testator’s original intention was to dispose of the residue to a class and not to particular individuals, and that he was satisfied that he had done so.

Erom my consideration of this case I think the correct and controlling rule to be applied is that stated in Tindall's Executors v. Tindall, 24 N. J. Eq. 512:

“That the residuary legatee is entitled as well to a residue caused by a lapsed legacy or an invalid or illegal disposition as to what remains after payment of debts arid legacies.
“The only exception to the rule is that where the words used show an intention on the part of the testator to exclude from the operation of the residuary clause certain portions of the estate, such intention as gathered from the whole will must not be defeated. Or the rule, embracing the exception, as stated in some of the books, is that the residuary legatee must be a legatee of the residue generally and not partially so only.”

This rule rests on the presumption that a testator by incorporating in his will a general residuary clause, evidences his intention not to die intestate as to any of his personal property, and it is presumed he took the particular legacy from the residuary legatee only for the benefit of the particular legatee. Giving effect to these presumptions or inferences as to the intention of the testator, which are of course prima facie merely, the cases in our state hold that if a legacy of personal property lapses, or proves ineffectual the subject-matter thereof will inure to the benefit of the general residuary legatee, if there is one, and not to the testator’s next of kin, or heirs-at-law. Sandford v. Blake, 45 N. J. Eq. 248; Barnet v. Barnet, 40 N. J. Eq. 380; Huston v. Read, 32 N. J. Eq. 591; Garthhwaite v. Lewis, 25 N. J. Eq. 351; Macknet v. Macknet, 24 N. J. Eq. 277; Shreve v. Shreve, 17 N. J. Eq. 487.

My conclusion is that the legacies to testator’s nephews lapsed, and became part of the residue; that testator did not die intestate as to any part of his estate, and that the fund now in the hands of the executor, which constitutes the only residue of the estate, is to be divided and distributed as directed by the testator in the twentieth clause of his will, among the moneyed legatees, and not among the testators next of kin.


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    Dinah Schneider et al. v. Emma Schmidt et al.
    [Submitted April 28th, 1916.
    Decided June 27th, 1916.]
    1. In a creditor’s suit, evidence Held to. show that the debtor’s equity of redemption in a chattel mortgage had been bought in by the mortgagee at a valid public foreclosure sale. t

    2. Judgment creditors of a chattel mortgagor are barred by laches from questioning, after six years, the validity of the mortgagee’s foreclosure and buying in of the equity of redemption, where the mortgagee could not be placed in the position she' occupied at the time of sale.
    3. Where an execution levy was made in 1904, but not enforced, and in 1906 and 1911 new levies were made, the 1904 levy was abandoned.
    Heard on bill, answer, replication and proofs.

      Mr. William, A. Lord, for the complainants.

      Mr. Alfred F. Stevens, foT the defendants.
   Foster, V. C.

Complainants seek by this bill to secure an accounting' from the defendant Emma Schmidt, as mortgagee in possession, of the moneys received by her from the rental and operation of a merry-go-round, in order to obtain the payment of a judgment which they hold against her husband, the defendant Charles Schmidt, and one John Huber, the mortgagors.

The facts disclosed by the proofs show that on October 4th, 1904, complainants obtained a decree against said Charles Schmidt and John Huber for the payment of $1,004, besides costs, all of which, with interest, is still due, except $100, which was realized by sale under execution of Charles Schmidt’s interest in certain real estate.

About a year previous to the entry of this decree, on November 4th, 1903, Charles Schmidt and John Huber had given a chattel mortgage to Emma Schmidt upon a carousel, with its engine, boiler and equipment, then located at Passaic wharf, in Newark, 'to secure the payment of $1,500, in one year, with interest, and this chattel mortgage was duly recorded the same day.

On October 31st, 1904, complainants caused execution to be issued on their final decree against Schmidt and Huber, under which the sheriff of Essex county, on November 2d,' 1904, levied on the carousel, engine, boiler, &c., covered by the chattel mortgage, but no sale was made under this execution. Shortly thereafter complainants brought suit against Mrs. Schmidt to have her mortgage declared fraudulent, but did not prevail.

Complainants caused alias executions to be issued against Schmidt and Huber, under one of which, on December 2d, 1906, the sheriff sold the interest of Charles Schmidt in certain real estate to the complainant Dinah Schneider for the $100 above mentioned.

Defendants claim that about February'' 14th, 1907, the goods were sold under the chattel mortgage, at public auction,.to Mrs. Schmidt for $650,'and that after she purchased them she largely replaced the equipment of the carousel, so that the only portions of the original carousel that were left were the rim and a few small figures, when, on August 22d, 1911, by an order of this court, another execution was issued against Schmidt and Huber, under which the sheriff of Essex county levied upon the carousel and other goods, which were then located in Hillside Park, in the city of Newark, and complainants, on the application of Mrs. Schmidt, were restrained from selling the property under this levy.

On January 15th, 1912, complainants filed a bill in this court against these defendants for substantially the samé relief now asked for, on the same ground set forth in the present bill, except that their claim then rested on the levy made in August, 1911, over four years after the alleged chattel mortgage sale in 1907, while, in the present action, the claim is grounded on the execution and levy of November 2d, 1904. That cause came on for final hearing, and, in conclusions filed therein on August 25th, 1913, Vice-Chancellor Emery decided against complainants5 contention. Schneider v. Schmidt, 82 N. J. Eq. 81.

On May 23d, 1914, tire present bill was filed, to which defendants filed a plea of res adjudicate based on the decree dismissing the former suit. This plea was overruled by Vice-Chancellor Emery (84 N. J. Eq. 18), and from the decree therein an appeal was taken, and this decree was affirmed, for the reasons stated in the opinion of the vice-chancellor. Schneider et al. v. Schmidt et al., 85 N. J. Eq. 207. Defendants thereupon filed their answer in this cause and the matter was brought on for Hearing.

The questions to be determined, it is agreed, are the validity of the chattel mortgage sale of the goods, in 1907, and if this sale were not valid, the effeci of the execution and levy of 1904, upon the goods themselves, instead of upon the mortgagors5 interest therein, and whether the levy of November, 1904, is now in force. , ■

From the testimony of the defendants, Mrs. Schmidt and John Huber, and that of Frederick Beers, it appears that the carousel and other property'included in the chattel mortgage were sold to foreclose the mortgage, at public sale, some time in 1907. After the lapse of nine years, none of these witnesses can recall tire exact date when the sale took place. The substance of Mrs. Schmidt’s testimony is that she thinks she attended the sale in November, 1907; that Mr. Beers, who conducted the sale for her, as her attorney, to foreclose her mortgage, sold the property to her for $650; that Mr. Huber, one of the mortgagors, attended the sale and made a hid of $600, and that this was the only other hid made at the sale. On the morning of the sale she saw posted, on a telegraph pole near the place of sale, the advertisement of the sale, bnt did not read it, and at the time of the sale she saw the complainant Mr. Schneider leaning over the fence watching the proceedings; and this he does not deny. She testifies the sale took place in a yard where the property was stored.

In this she is corroborated by Mr, Huber and Mr. Beers. Mr. Huber, one of the mortgagors, remembers attending the sale and making an unsuccessful bid on the property, but he cannot recall the date of the sale. Mr. Beers recalls having the sale in charge and of having posted notices of the sale in three different public places; that the notices were similar to the notice produced in evidence, and which he identified as in the handwriting of a stenographer employed in his office at the time, and, according to"this copy of the notice, the sale took place on February 14th, 1907. On April 4th, 1907, John Huber gave Mrs. Schmidt a bill of sale for the property, and it is insisted that this circumstance indicates the property was not sold at public sale, if sold at all, until after the delivery of the bill of sale, when the parties may have learned that Mrs. Schmidt could not legally take a bill of sale from her husband.

In the conclusions filed by Vice-Chancellor Emery, in Schneider v. Schmidt, supra, in which the same questions were involved, and the same contentions made on the. part of the complainant under the levy of August, 1911, he found “that the facts proved show that in the early part of 1907, and after default, proceedings took place which were intended to be a public sale under Mrs. Schmidt’s chattel mortgage, conducted by her attorney, Edward Beers. An advertisement of the sale, signed by him, has been produced, dated on the 8th day of February, 1907, announcing the sale at No. 11 Lentz avenue, Newark, New Jersey, where the goods were then stored on February 14th, 1907, at-ten o’clock a. m. No proof, however, has been made as to the posting or other notice of advertisements, and the only proof relating to the sale is that of the defendants Mrs. Schmidt and Huber* who say, substantially, that it was a public sale at that place at which the mortgaged chattels were then and there offered for sale, at public auction, and that Mr. 'Huber made a bid of $600,'followed by a bid of $650 made by Mrs. Schmidt, for which the property was sold to her. Ho bill of sale or other writing appears to have been executed at this time.”

All the facts relating to the chattel mortgage sale recited above have been established in the present case, and, in addition, Mr. Frederick Beers, vdio did not testify in the former ease, has been produced as a witness, and he testifies that he recalls having this foreclosure sale of the chattels in charge, and of having posted notices of the sale in three different public places, that the notices were similar to the notices produced in this, and in the former case, and which, as stated, he recognizes to be in the handwriting of a stenographer employed in his office at that time.

Because of the lapse of time, Mr. Beers wras unable to recall all the details connected with the advertising and sale of the chattels under the mortgage, but he is very positive that all the requirements as to notice, &c., were complied with; and that Mrs. Schmidt publicly bid in the chattels for less than the amount then owing to her, and his testimony, and the other proven facts, convinces me that Mrs. Schmidt’s chattel mortgage was foreclosed by this sale held in February, 1907, and that she became the purchaser of the chattels at this sale for their fair and reasonable value, and bas held possession of them since as owner and not as mortgagee in possession.

Her acts of ownership after this sale are evidenced by the execution and recording of a chattel mortgage upon the chattels, given by Mrs, Schmidt in July, 1907, by the contracts she made for operating the carousel in an amusement park, and by the management of the carousel and the retention of the income therefrom, without any claim being made therefor, or for an accounting by the mortgagors, or cither of them.

If any doubt existed regarding the chattel mortgage sale having taken place in 1907, I should feel constrained to reach the same conclusion, because of the laches or failure of the complainant to set up until the former suit was heard, in 1913, any attack upon the validity of that sale.

In Schneider v. Schmidt, supra, Vice-Chancellor Emery held that Huber and Schmidt were partners, that the bill of sale given by Huber to Mrs. Schmidt, in April, 1907, transferred to her the owner’s equity in the chattels, and that she became the owner by reason thereof, independently of the chattel mortgage sale of February, 1907 (because this bill of sale was made prior to the levy of August, 1911, which was involved in that case), and, as a result of his determination of her ownership in that case, Mrs. Schmidt disposed of what'remained of the mortgaged chattels, by exchanging them for a new machine which cost her about $10,000, and on which price she was credited with $1,000, for the value of the mortgage chattels, and has paid an additional $1,000 on account of the price of the new machine, and has Obligated herself to pay the balance of about $8,000, and has secured the payment of this amount by a mortgage upon the new chattels.

If the sale of 1907 were now held to be invalid, the possession of the original chattels could not be obtained — they are owned by a stranger and are out of the state. An accounting of the receipts therefrom could not place Mrs. Schmidt in the position she occupied in 1907, in respect to the amount owing her; or the security which she had held therefor, nor would it relieve her from the obligations she has assumed in the purchase of the new carousel.

This condition is the result of complainants’ laches, or failure to assert their rights, if they had any, under the execution and levy of November, 1904, until the commencement of this suit in 1914.

’ Their claim must be regarded as a stale one, and a court of equity does not look with favor upon the ease of a complainant who has remained inactive for years, during which time innocent parties whose interests are jeopardized by his dormant rights have gone on in fancied security to spend money in improvements, when conditions cannot be reinstated, and when the truth has been necessarily obscured by lapse of time; and a court of equity always refuses to aid stale demands when the party has slept upon his rights. DeGrauw v. Mechan, 48 N. J. Eq. (at p. 224), and eases cited.

The bill alleges that in addition to the execution and levy of 1904, other executions were issued and levies made thereunder, including one in 1906, under which Schmidt’s interest in certain real estate was sold, as stated, and the one in 'August, 1911, disposed of by Vice-Chancellor Emery’s conclusions.

No reason has been suggested why the levy of November, 1904, if it were in force, was not included in the action in which the levy of 1911 was involved. Under it complainant’s position was much stronger than under the levy of 1911. The levy of 1904 was made nearly three years before the chattel mortgage sale, and the rights of complainants thereunder were entirely different from their rights under the levy made subsequent to this sale, and it is therefore not unreasonable to assume that the levy of November, 1904, had been abandoned when the éxecu-' tions and levies of 1906 and 1911 were issued and made.

It is a, general.rule that, when, after the making of a levy, there is-no attempt to sell the property within a reasonable time, and it is permitted to remain in the possession of the defendant, or from any course of conduct the inference must be reached, that the plaintiff did not, or does not intend to enforce his levy by coercing through its aid the payment of his demand, the conclusion cannot be resisted either that the levy was without good faith in its inception, or1 that the plaintiff has concluded, for some reason satisfactory to himself, to abandon it. Freem. Ex. (3d ed.) § 271.

When their first action to have the mortgage declared fraudulent was decided against them in 190,8, complainants did not attempt to enforce their levy of 1904, but waited instead until August, 1911, and then had a new levy made upon the chattels, having in the meantime sold Schmidt’s interest in the real estate under the execution of 1906. These levies, made subsequent to one of 1904, and the other executions which the bill alleges were issued, justify the conclusion that complainants abandoned the levy of 1904, when it had accomplished its purpose of keeping them in court in the original suit thereby to attack the validity of the mortgages held by Mrs. Schmidt.

My conclusion is that complainants having abandoned the levy of 1904, have no standing to attack the validity of the chattel mortgage sale of 1907," that these chattels were sold at th,e sale' to Mrs. Schmidt, that she then became the owner of them, and has since held the same as owner, and not as mortgagee in possession, and that it is now too late for complainants to question the validity of her title.

Decree will be advised dismissing the bill, with costs.


text:
    Harriet Jackson v. Henry Roe and Sadie Roe.
    [Submitted May 25th, 1916.
    Decided June 22d, 1916.]
    A devise to J. of the farm on which she is living “lying in O. township,” includes a tract of woodland always treated and used as part of the farm, for farm purposes, and otherwise undisposed of, and on which testatrix for years after making the will, paid taxes, in connection with and as part of the farm, to O. township, though by division of O. township such tract was in another township; the words “O. township” being rejected, as to it, as partial misdescription.

      Messrs. Durand, Ivins & Qarton, for the complainant.

      Messrs. Patterson & Bhome, for the defendants. ,
   Foster, V. C.

This bill is filed to quiet title' to a tract of. land situate in Neptune township in the county of Monmouth.

The controversy arises over the construction of certain provisions of the will of Mary E. Newman, who died seized of the premises in question, leaving a will that was duly admitted to probate by the surrogate of Monmouth county on April 3d, 1913.

Mrs. Newman left no husband or issue surviving, and after providing for the payment of her debts, the erection of a suitable tombstone for her husband, and making a devise of a small tract of woodland to other parties, she disposed of the balance of. her estate to complainant and defendants by the following provisions of her will, which was executed on February 18th, 1904.

“Item: (2) I do give, devise and bequeath unto Henry Roe and his wile, Sadie Roe, the house and lots in West Park, nanely on prospec avenue, in neptune Township, and all the apurtenance thereto to be tkeirse forever aliso, I do give, devise and bequeath unto Henry Roe and his wife, Sadie Roe, the two tracts of woodland known as the pine thicket and the track south and joineing said Pine thicket tract to be theirs forever said Tracts of land lying in the Township of Ocean.”
“Item: I give, devise and bequeath unto Henrietta J. Jackson, wife of Goodenough Jackson, the farm on which they now live lying in the Township of Ocean to be hers forever.”
“Item: The ballance of my estate of every description such as bonds and mortgages of which I may die seized the equal one half I give and bequeath unto Henrietta Jackson, wife of Goodenough Jackson -and the other equal one half I give and bequeath unto Henry Roe and Sadie Roe, his wife, to be theirs forever.”

It appears from the evidence that Mrs. Newman’s father, Goodenough Truax, owned the farm of which testatrix- died seized, for a great many years; that it was devised to testatrix by his will; that she lived on it for- many years after his death; that complainant went there to live with testatrix; when she was a child about ten years old, and has continuously resided there since; that the total acreage of the farm including woodland is about eighty-nine acres; that about' seventy acres are in Ocean township, and the tract in question, of about nineteen acres of woodland, is now located in Neptune township.

Originally the entire farm was in Ocean township. By an act of .legislature passed in 1879, the township of Neptune was created out of a portion of Ocean township, the division line of the two townships passing through the farm, and shortly .thereafter a public .road called Asbury avenue pvas opened on the new township line, passing through the farm and leaving the premises in question, and a small triangular piece of cleared land, lying south of this road and in Neptune township.

In addition to the lands in question, testatrix also died seized of two other tracts of woodland in Ocean township lying on the east side of the county road, adjoining each other, and lying opposite the southeasterly part of the farm; the northerly of these two tracts containing about nine acres she acquired under the will of her husband, Corlies T. Newman, and the southerly tract containing about ten acres, she acquired under the will of her father.

It will be observed that by their terms each devise is limited to lands lying in Ocean township, and that no reference is made in the provisions of the will to any lands of testatrix lying in Neptune township. The proofs show that until within two or three years of her death, Mrs. Newman was not assessed for taxes for any lands lying in Neptune township, and paid taxes only on lands assessed in Ocean township. It further appears that the premises in question continued to be used as part of the farm after Neptune township was established and after Asbury avenue was laid out, and up to the time of Mrs. Newman's death, by her and by complainant, as the occupant of the farm, and that complainant is now in possession of the entire farm including the premises in question, and no action is pending affecting her title to the same.

The evidence further shows that testatrix and her father had used this tract of woodland in question, and the small piece of cleared land therein, in connection with and as part of the farm, and that testatrix had permitted complainant, during her occupancy of the farm for many years, to do the same. This was the tract of land from which firewood for the home and wood for other use on the farm was cut, and it was always treated and used like any other part of the farm, for farm purposes. Taxes were paid on it by the testatrix in connection with and as part of the farm to Ocean township years after the will was made. Testatrix first paid taxes on the part of the farm in question to Neptune township years after the will was made, and it is not unreasonable to assume that she had forgotten, if she ever knew, that this part of her farm was in Neptune township, and was only reminded of the fact shortly before her death by the receipt of a tax bill from Neptune township. Years of residence upon the farm by testatrix, with and without complainant, acquainted her with the value and necessity' of this tract of land to the proper enjoyment of the rest of the farm.

It further appears that of the two tracts of woodland’ lying east of the county road, and containing about the same acreage as the premises in question, the northerly or nine-acre tract was and is locally known as the “pine thicket,” because of the dense growth of pines on it, and on the southerly of these tracts the timber was and is chestnut and hickory with very few pines, and that this southerly tract of woodland was not considered or referred to by Mr. or Mrs. Newman or their neighbors as the “pine thicket.”

It further appears that the tract involved in this action does not lie south and adjoining the “pine thicket,” whether this term be held to apply to one or both tracts of woodland, but that it lies west of the county road and south of Asbury avenue, and that it is separated from the “pine thicket,” and in fact from both tracts of woodland, by these roads and also by lands owned by one David Slocum.

Complainant’s contention is that the devise to her of the farm on which she was living, when the will was made in 1904, and when testatrix died in 1913, includes the premises in question as part of the farm. Defendants contend — first, that the two tracts of woodland and not the northerly tract alone constitute the “pine thicket,” and that the premises in question lying southwesterly of this, pine thicket and separated from it as stated, and located in Neptune township, is the tract which testatrix described as “south and joineing said pine thicket tract” * * in Ocean township; and second, that if this contention is not sustained, then that the lands in question were not devised to complainant as part of the farm, but were disposed of by the residuary clause of the will, under which the residue of the estate is equally divided between- complainant and defendants.

The only doubt as to the intention of the testatrix arises from the fact that she devised to complainant the farm on which she was living in Ocean township, while part of the farm, the tract in question, is located in Neptune township.

To remove the ambiguity as to what constituted the farm on which complainant lived, when the will was made and testatrix died, and also as to the identity of the “pine thicket” tract, evidence was received to ascertain the sense in which these terms were used by testatrix, and this evidence was convincing that the premises in question were always used, treated and referred to as part of the farm, without regard to the township in which they were located, and that the “pine thicket” was the northerly of the two tracts of woodland, and not the premises in question, which does not answer the description of the will, by lying south of and adjoining the “pine thicket/'" in Ocean township.

No doubt regarding the intention of the testatrix to devise her entire.farm to complainant would exist, were it not for the description connected with the devise, to the effect that the farm devised, and on which complainant was living, was located in Ocean township ; but under the proofs and applying thereto the rule stated in Griscom v. Evens, 40 N. J. Law 402, I think this doubt should be resolved in favor of complainant, and the descriptive words “Ocean township” being only partially true, should be rejected as mistaken description.

A decree will be advised' that the devise to complainant included the premises in question.


text:
    Florence E. Palmer v. John A. McFadden, guardian, et al.
    [Submitted June 30th, 1916.
    Decided July 6th, 1916.]
    1. Clauses of policy provided that the insurer should not be liable for a greater proportion of loss than its policy bore to the entire amount of insurance, and that if it paid to the mortgagee any loss, and claimed that as to the mortgagor no liability existed, it should be subrogated to the rights of the mortgagee, and might pay the mortgage and hare an assignment thereof, but that no subrogation should impair the mortgagee’s right to recover the full amount of his claim. The policy issued to the mortgagor and contained the standard mortgagee clause. Other insurance was taken, and on loss the other insurers paid their proportionate share. The defendant insurer without denying liability to the mortgagor paid the mortgagee the amount of his judgment, which exceeded its proportionate share of the loss and took an assignment of the decree. — Held, that the insurer, having failed to provide for contribution as to the mortgagee, was liable for the payment made and could not recover the excess from the mortgagor.
    2. The mortgagor could not recover from the insurer the difference between the face value of the policy and the amount paid the mortgagee; the liability to her having been discharged by payment of a greater amount than she herself could have recovered.

      Mr. Harry J. Weiner and Mr. William F. Reibel, for the complainant.

      Messrs. Lindabury, Depue .& Faulks, for the defendants.
   Foster, V. C.

-The bill in this cause is filed to have the defendant the Niagara Fire Insurance Company enjoined from proceeding to collect any part of' the amount due on a bond and mortgage made by the complainant to defendant John A. McFadden, as guardian, and on the decree entered in foreclosure proceedings thereon, and which bond, mortgage and decree were duly assigned by McFadden to the insurance company. The bill also seeks to have this mortgage surrendered for cancellation, and also to compel the Niagara Fire Insurance Company to pay the complainant the difference between the amount of its insurance policy and the amount paid, to the mortgagee when the bond, mortgage and decree of foreclosure were assigned to it under the following circumstances:

On March 11th, 1911, complainant and her husband executed and delivered to the defendant John A. McFadden, as guardian, their bond, together with a mortgage on property in the city of Elizabeth, in this state, to secure the payment of $3,500 and interest thereon.

In August, 1912, McEadden began foreclosure proceedings on this mortgage, and on December 18th, 1913, he obtained a decree therein for $3,225.

On October 17th, 1912, the defendant the Niagara Eire Insurance Company issued its policy to complainant and one Sidney W. Eldridge, payable as their respective interests should appear, insuring the mortgaged premises against loss by fire in the sum of $3,500. Attached to this policy was the standard mortgagee clause, without contribution, bjr which loss, if any, under the policy was made payable to McEadden, mortgagee, as his interest might appear. On December 2d, 1912, the interest of Sidney W. Eldridge in the policy ceased.

The Scottish Union and National Insurance Company of Edinburgh, at this time, also had, in effect, a policy of insurance against fire covering said premises for the sum of $6,000, and the Northern Insurance Company of New York also had, in effect, a policy of insurance covering said premises against fire for the sum of $5,000, but neither of these policies were made payable to the mortgagee in the event of a loss.

On December 20th, 1912, the insured dwelling of complainant was completely destroyed by fire.

' Under the terms of the several policies, an appraisal was had and the sound value of the property was appraised at $6,002.62, and the loss from the fire was appraised at $5,205.82.

Of this loss the Scottish Union and the National Insurance Company was compelled by suit to pay to complainant $2,460 for its proportion' of the appraised loss, and the Northern Insurance Company was also compelled by suit to pay complainant $2,150 for its proportion of the loss.

The defendant the Niagara Eire'Insurance Company, because of the mortgagee clause attached to its policy, paid to the defendant McEadden, guardian, on his demand, $3,416.67, being the amount of his decree and interest thereon, and took from him an assignment of the bond and mortgage and the decree in the foreclosure proceedings; and also an agreement subrogating the Niagara Eire Insurance Company to all the rights of McEadden as mortgagee.

The total amount of the insurance in force on the property, at the time of the loss, was $14,500. The proportion the Niagara Eire Insurance Company would have to pay, except for the mortgagee clause, as its proportionate contribution towards the loss of $5,205.82, is the sum of $1,256.58; by reason of delay in making settlement of the loss, interest had accrued to the mortgagee, up to date of the assignment of the decree, 'amounting to $131.58, making a total proportion of the loss for which the Niagara Eire Insurance Company admits liability of'$l,-388.16; and the Niagara Eire Insurance Company claims that in making a settlement with the mortgagee under the policy and mortgagee clause for $3,416.67,' it paid him $2,028.51 more,than complainant would have been entitled to recover from it for its proportion of the loss.

The 'defendant Niagara Eire Insurance Company is now seeking to enforce the decree assigned to it (and which has been duly filed with the clerk of this court, and under which it has been substituted for McEadden, as complainant in the foreclosure suit) by the sale of the mortgaged premises to recover this alleged excess payment of $2,028.50, with interest from the date of its settlement with the mortgagee, contending that by the terms of the policy and the mortgagee clause, and by the assignment of' the bond, mortgage and decree of foreclosure, it is entitled to be subrogated to the rights of the mortgagee to recover the amount it claims to have paid, in excess of the amount it was liable to pay, under its policy, to complainant as owner and mortgagor.

Complainant contends, however, that she is entitled to have the amount paid by the Niagara Eire Insurance Company to the mortgagee credited and applied in satisfaction of the debt secured by the mortgage; and to have the mortgage surrendered for cancellation; and that she is also entitled to have paid to her, by the Niagara Eire Insurance Company, the difference between $3,500 the amount of the policy and the amount of $3,416.67 paid by the Niagara Eire Insurance Company to the mortgagee.

There is no dispute regarding the liability of the Niagara Eire Insurance Company under the mortgagee clause to pay the mortgagee the amount of his claim.

The policy of the Niagara Eire Insurance Company contained the following provision:

“This company shall not be liable under the policy for a greater proportion of any loss on the described property or for loss by any expense of removal from premises endangered by fire, than the amount hereby insured shall bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers, covering such property, and the extent of the application of the insurance under this policy or of the contribution to be made by this company in case of loss may be provided for by agreement or condition written hereon or attached or appended hereto.”

The mortgagee clause attached to this policy reads in part as follows: ,

“Whenever this company shall pay the mortgagee (or trustee) any sum for loss or damage under this policy and shall claim that as to the mortgagor or owner no liability- therefor existed, this company shall, to the extent of such payment, if thereupon legally subrogated to all the rights of the parties to whom such payments shall be made under all securities held as collateral to the mortgage debt, or may, at its option, pay to mortgagee with interest, and shall thereupon receive a full assignment and transfer of the mortgage and all other such securities; but no subrogation shall impair the right of the mortgagee (or trustee) to recover the full amount of their claim.”

The questions to be determined are the extent of the liability under its policy of the defendant the Niagara Eire Insurance Company to the complainant, as owner and mortgagor, and its equity, if any, to be subrogated to the rights of the mortgagee.

The insurance company ‘ admits that, under the terms of the policy and mortgagee clause, it was compelled to pay the mortgagee the principal and interest of the debt due him, up to the amount of the policy, if necessary, but it insists that, notwithstanding this liability to the mortgagee, it was only liable, by reason of the limitation imposed by the contribution clause of the policy, to pay complainant, as owner, such proportionate share of her loss, that the amount of its policy bore to the total amount of insurance upon the premises, and that as it was compelled by the terms of the mortgagee clause to pay the mortgagee $2,028.51 in excess of the amount for which it was liable to complainant, as owner, it is entitled to be subrogated to the rights of the mortgagee to the amount of such excess payment; and should be permitted to collect the same by a sale oí the mortgaged premises, and, if necessary, by. an action against complainant on her bond for any deficiency.

The situation presented is this: Complainant at her own expense procured insurance from1 the Niagara Eire Insurance Company, payable to herself and her mortgagee; the amount she could recover, from this company and each of the other insurers, in the event of loss, was limited by the contribution clause of the policy, and the amount the mortgagee could recover was limited only by the amount of the debt due him and the amount of the policy.

The insurance company, in the language of the mortgagee clause, does not “claim that as to the mortgagor or owner no liability” for the payment made by it to the mortgagee existed; on the contrary, it admits a total liability to the mortgagee, and also admits its liability to complainant, as owner or mortgagor, for its full contribution of the loss called for by the policy.

The rule governing the rights of the parties, under such circumstances, is stated as follows, in 19 Cyc. 895, &c.:

“If insurance is taken by a mortgagor for his own benefit or for the benefit of tlie mortgagee, or by the mortgagee in the mortgagor’s interest and at his expense, payment of. insurance money to the mortgagee goes to the benefit of the mortgagor in satisfaction pVo tanto of the mortgage debt, but where the insurariee is for the mortgagee’s sole protection and the mortgagor has not procured it, or has lost the right to rely upon it, the company, in paying- to the mortgagee the insurance money, becomes entitled to equitable subrogation pro tanto to the security held by the mortgagee, and this right of subrogation is usually made a contract right by a provision in the policy that on the payment of loss under the policy the mortgagee shall assign his mortgage to the company in full or pro tanto as the case may be.”

This rule has been followed in Sussex County Mutual Insurance Co. v. Woodruff, 26 N. J. Law 541; Pearman v. Gould, 42 N. J. Eq. 4; Nelson v. Bound Brook Mutual Insurance Co., 43 N. J. Eq. 256; Hare v. Headley, 54 N. J. Eq. 546, &c.; Leyden v. Lawrence, 78 N. J. Eq. 453.

From the facts -stated it is apparent that neither of the requisites to entitle the insurance company to subrogation, viz., an insurance effected by the mortgagee at his own expense, or a denial of liability to the owner or mortgagor, is present in this case. The insurer by its contention is asking the court, in effect, to ^dd a provision to the contract of insurance, which it neglected to impose when the mortgagee clause was attached to the policy —that is, it asks that a contribution clause be read into the mortgagee clause, limiting its liability thereunder as a similar1 clause limits its liability to the owner under the policy.

It is a matter of common knowledge that insurance companies issue the standard form of mortgagee clause both with and without the clause for full contribution from other insurers; and limiting liability thereby. In the present case, the Fiagara Eire Insurance Company saw fit to issue and to attach to complainant’s policy the mortgagee clause, without the provision for contribution by other insurers; and without limiting thereby its liability for a greater proportion of any loss or damage sustained than tire amount of its policy bore to the whole amount of insurance upon the property, whether such insurance was issued to or held by the owner or mortgagee, and it now asks the court by its contention to supply this omission from the mortgagee clause under consideration.

This, of course, cannot be done, and as complainant procured the insurance at her own expense, and as the insurance company does not disclaim, but admits liability to her as owner and mortgagor, she is entitled to have the amount paid the mortgagee credited in satisfaction of the mortgage debt, and to have the bond, mortgage and decree of foreclosure surrendered for cancellation, but complainant is not entitled to have paid her the difference between the amount of the policy and the amount paid the mortgagee.

The contract of insurance is a. contract of indemnity, Kase v. Hartford Fire Insurance Co., 58 N. J. Law 34. By its payment to the mortgagee, in which payment was included the total amount for which the insurance company had agreed to indemnify complainant for her loss, the company has performed its obligation under the contract, set forth in the policy and in the mortgagee clause, and it is not. liable for further payment to complainant, as the amount of such payment is beyond the amount for which it agreed to indemnify her.

A decree will be advised in accordance with the views herein expressed.