author: Backes, Vice-Ordinary.

text:
    Edwin Robert Walker, Ordinary.
    John R. Emery, Frederic W. Stevens, Eugene Stevenson, Edmund B. Leaming, James E. Howell, Vivian M. Lewis, John H. Backes and John Griffin, Vice-Ordinaries.
    In the matter of the last will and testament of Thomas D. Sebring, deceased.
    [Submitted February 23d, 1915.
    Decided March 11th, 1915.]
    1. Counsel fees and costs will not be allowed out of a decedent’s estate to an unsuccessful contestant of a will whenever he ventures beyond an exploration of the attesting witnesses, unless he had reasonable cause for believing that the paper-writing offered for probate was not the last will and testament of the deceased, and this belief must be shown to have rested upon facts or circumstances sufficient to excite in the probate court an apprehension that the testator lacked mental capacity or was unduly influenced.

      2. Evidence Held to fail to show tliat the probate court was justified in imposing upon the estate the fees and costs of the caveatrix who contested the will on the ground of undue influence, alleged to have been exercised by her mother over the testator.
    3. Undue influence defined.

      Mr. H. Burdett Herr, fox the appellant.

      Mr. Willard C. Parker and Mr. George H. Large, for the appellee.
   Backes, Vice-Ordinary.

This is an appeal from so much of the decree of the orphans court of Hunterdon county admitting to probate the last will and testament of Thomas D. Sebring, deceased, as allow costs and counsel fees to the caveatrix.

Chancellor Green, in Perrine v. Applegate (1862), 14 N. J. Eq. 531, quoted authorities showing the then general rule to be that where the will is admitted to probate, costs are not to be paid out of the estate of the testator to the party contesting the grant of probate, and also that where probate is refused to one other than an executor, the unsuccessful party will be condemned in costs. The chancellor had under consideration the effect of section 12 of the supplement to the Orphans Court act, approved March 17th, 1855 (Nix. Dig. 651), and of section 1 of the supplement of February 1st, 1861 (Nix. Dig. 656), the first of which provided that if probate be refused, costs were to be awarded as theretofore, but if probate was granted, the costs of both parties were to be paid by the contestant, if he introduced at the trial evidence of others than the subscribing witnesses; and the second, that if such other evidence were introduced, and it appeared that the contestant had reasonable cause for contesting the will, costs were to be allowed as they were allowed prior to the act of 1855. And he held that the first enactment was little else than a legislative recognition of the correct practice of the court, and that the later one simply gave to the court the discretion which it formerly exercised, and remarked that “it must be an extreme case that would justify a court in giving costs to an unsuccessful party in contesting a will.” The practice rested upon the principle that an heir or next of kin who adopted this form of litigation for his own private gain and benefit, if unsuccessful, must, like suitors in any other forms of action, pay the costs. The two acts were in substance incorporated in section 169 of the Revision of the Orphans Court act of 1874 (Rev. Stat. 1874 p. 550), which was amended in 1876 (Rev. p. 791), by adding the provision that if it appeared to the court that there was reasonable cause for the contest, it may order the costs and expenses of the caveator to be paid out of the estate of the deceased. As amended, it was re-enacted in section 197 of the Revision of the Orphans Court act of 1898. 3 Comp. Stat. p. 3885. This modification of the practice did not alter the prevailing rule in imposing costs in the court’s discretion, and now, as then, it must appear that the unsuccessful contestant, whenever he ventures beyond an exploration of the attesting witnesses, had reasonable cause for believing that the paper-writing offered for probate was not the last will and testament of the deceased, and this belief must be shown to have rested upon facts or circumstances sufficient to excite in the probate court an apprehension that the testator lacked mental capacity or was unduly influenced before the court will favor him in costs. This requirement of minimum proof works no hardship upon the contestant and affords some protection to the estate from speculative and vexatious litigation.

I have examined the record in this case with anxious care, to find something upon which the court below was justified in imposing upon the estate the fees and costs of the caveatrix, but without success. The disputed will was made in 1§99, when the testator was a man in the forties, in vigorous health, and of sound mental balance. His family then consisted of his wife and daughter, the latter about sixteen years of age. By his will he gave $200 to his half-sister, and the balance of his estate to his wife, whom he nominated as executrix. The testator died in 1914, nearly fifteen years afterwards. His mental capacity is not assailed, but the daughter contested the will on the ground of undue influence alleged to have been exercised by her mother. About two months before the will was made, the daughter eloped, causing both parents great sorrow, not unmixed with bitter feeling towards the daughter, which, perhaps, moved the testator to ignore her in his will. This is mere conjecture, as the disposition of the estate to the wife was quite' natural, and the evidence is silent as to the testator’s motive. The sorrow and bitterness of feeling of the parents was keener in the mother than the father. He was of an even and easygoing disposition, and inclined to relent. The daughter, on the other hand (who, after her marriage, lived within a mile or two of her parents), made no efforts to become reconciled, and the estrangement continued down to the father’s death. Testimony was offered, tending to show that long after the will was made, and probably after the deceased joined church, he hoped and wished for a reunion with his daughter, and also tending to show that the mother’s sorrow and anger were so deep-rooted that she regarded the daughter as dead, and upon one or more occasions stated that the daughter would not get any of their property, and expressed satisfaction with the way her husband had cut her off in his will. The testimony also shows the mother to be a woman of strong will and firm determination, while the testator, although admitted to have been mentally sound and level-headed, was of a more pacific and yielding nature. No testimony was produced to show, even faintly, that the wife exercised an influence, lawful or unlawful, upon her husband to make his will in her favor, and the contestant’s case rested solely upon an impossible inference of undue influence sought to be deduced from a greater degree of strength of mind in the wife than in the husband, and from circumstances which grew out of the conduct of the caveatrix. “Undue influence consists in the destruction of free agency. Whatever constrains a person to do what is against his will, and what he would not do if left to himself, is undue influence, no matter by what means the control is exercised. The extent or degree of the influence is wholly immaterial, for the test is, was the influence, whether powerful or slight, sufficient to destroy free agency, so as to make the act brought in judgment the act of another rather than the expression of the mind and heart of the actor ?” Carroll v. Hause, 48, N. J. Eq. 269 (at p. 273).

The testimony in no sense meets this definition, and the caveatrix could not, in reason, have believed-that it would. In such circumstances, to imhurse the caveatrix to enable her to pay her counsel, or to reimburse her for such outlay, would be to revive the old practice denounced by the chancellor in Perrine v. Applegate, supra, in the following language: "Previous to the act of 1855, a practice obtained in at least some of the counties of the state, in all litigated eases, of charging the entire costs of contesting the validity of wills of both parties upon the estate. There is no legal justification for such practice. It affords an easy mode for a disappointed heir to thwart the intentions of the testator by squandering the estate in litigation, or compelling the legatees to accede to unreasonable terms of settlement. Instances are not wanting where entire estates have been swept away by protracted litigation. It is, in fact, a bounty upon litigation. I speak but the common sentiment of the profession in saying that the practice was fraught with great evils and operated most oppressively upon legatees.”

The appeal will be sustained, with costs.


source: Caselaw Access Project

author: Gummere, Chief-Justice.

license: Public Domain

text:
    Ida E. Tully, appellant, v. Samuel J. Taylor et al., respondents.
    [Submitted March 22d, 1915.
    Decided June 14th, 1915.]
    1. It would seem that, in this state, the common law rule permitting a grantor who has conveyed by a deed without covenants of title to assert as against his grantee an adverse title subsequently .acquired by him is not applicable as between mortgagor and mortgagee.
    2. An owner of land executed a mortgage thereon containing a covenant for quiet enjoyment. After the mortgagor’s death his widow, who was sole devisee, used part of the proceeds of the loan to purchase an outstanding interest in the premises which she attempted to assert after the foreclosure of the mortgage. — Held that, since the mortgagor, her husband, would have been estopped to assert such outstanding title against the mortgagee, his widow, being privy in estate with her husband, was also estopped to the same extent.

      On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning.

      Mr. Harrison H. Voorhees, for the appellant.

      Mr. Thomas P. Curley, for the respondents.
   The opinion of the court was delivered by

Gummere, Chief-Justice.

The bill in this case was filed to quiet title to a tract of land in Holly Beach, Cape May county. The following are the material facts: Latimer R. Baker, claiming to be the owner of the land in question, conveyed it to Harry Hoffman and Frank Baingo, as tenants in common. Some time later Hoffman conveyed his interest to Baingo. Baingo then applied to Mrs. Tully, the complainant, for a loan of $10,000 upon the property, and this she agreed to make. There then being upon the land liens amounting to over seven thousand dollars, the moneys agreed to be loaned were placed in the hands of one Hagan, the agent of the complainant, with the consent of Mr. Baingo, in order that Hagan might pay off these liens. Hagan did this; and in the meantime the mortgage was executed by Baingo and his wife, delivered to Mrs. Tully, and placed on record. Before all of the liens were discharged Baingo died, leaving a will by which he devised and bequeathed all of his estate to his widow, and appointed her sole executrix. The moneys remaining in Hagan’s hands after the discharge of the liens ($2,536.37) were paid over by him to Mrs. Baingo. Default having been made in the payment of the interest, Mrs. Tully filed a bill to foreclose her mortgage, and in due course a final decree was entered in that suit, and execution issued thereon for the sale of the mortgaged premises. At the sheriff’s sale under that execution Mrs. Tully appeared, and, being the highest bidder, the property was struck off to her. At the time of the making of the mortgage by Baingo and his wife to Mrs. Tully, there was an outstanding interest in a portion of the property held by one Gallagher, and that interest was purchased from Gallagher by one Taylor, acting for Mrs. Baingo, and the purchase price paid by him out of the $2,-536.31, which Mrs. Baingo received from Hagan, as before stated. At the time of the foreclosure sale Taylor announced to would-be purchasers the existence of this outstanding title, and after the execution of the sheriff’s deed to Mrs. Tully, the purchaser at the sale, Mrs. Baingo claimed to have an adverse interest in the land by virtue of her purchase of the Gallagher title. Mrs. Tully, by the bill in the present cause, seeks an adjudication that the purchase by Mrs. Baingo of the outstanding Gallagher title enured to her interest, and that Mrs. Baingo is estopped from asserting the adverse title as against her.

The learned vice-chancellor who heard the cause, after stating that the well-settled rule at common law was that where a deed of conveyance contained a warranty or covenant of title in the vendor, he, and all persons holding under him, were estopped from denying title' in the vendee, and that an after-acquired title by the vendor would enure to the benefit of the vendee; and that, on the contrary, where the grantor conveyed by deed without covenants, he was not estopped from asserting an adverse title subsequently acquired by him, declared that an examination of the mortgage failed to disclose any such covenant, and for this reason concluded that the complainant was not entitled to the relief which she sought. He, consequently, advised a decree in favor of the defendant, and from that decree complainant now appeals.

The rule of the common law permitting a grantor who has conveyed by a deed without covenants of title to assert, as against his grantee, an adverse title subsequently acquired by him, has not been considered by the courts of this state to be applicable as between mortgagor and mortgagee. In the early case of Decker v. Caskey, 3 N. J. Eq. 446, it is,said that if a mortgage be made on an estate to which the mortgagor has not a good title, and then he who has the real title conveys to the mortgagor, or his representatives, a good title, the mortgagee will be entitled in equity to the benefit of it. In Den v. VanNess, 10 N. J. Law 102, the supreme court held that a mortgagor will not he permitted to dispute a title derived under his mortgage, nor allege anything in opposition to a claim founded on it, and that he cannot set up an outstanding title in another in an action of ejectment brought upon the mortgage, for the purpose of defeating a recovery. In that case the court cited with approval the following language of Lord Mansfield in Doe v. Pegge, 1 T. R. 758: “I found this point settled before I came into this court, that the court never suffers a mortgagor to set up the title of a third person against his mortgage; for he made the mortgage and it does not lie in his mouth to say so, though such third person might have a right to recover possession.” And in the case of Den v. Gardner, 20 N. J. Law 556, 560, it is said: “Whatever may be the effect of ordinary deeds of conveyance without warranty in concluding a grantor, who has released or conveyed without interest, yet, in relation to mortgages, the question is well settled. By an equitable estoppel, based upon the legal fraud which would be otherwise permitted, one who mortgages land as his own, upon suit thereupon brought against him, shall not be permitted to derogate from his own mortgage, by denying his title, or by setting up^ title in any third person.”

We would not feel justified in overruling this principle of law which has prevailed in this state for so long a period of time, unless it was manifestly unsound. But the determination of this case does not, in our opinion, depend upon the existence of the exception to the rule, which has been established by the cases referred to.

Upon an examination of the mortgage made by Baingo and his wife to the complainant, we find the following covenant which, apparently, was overlooked by the vice-chancellor:

“And the said Frank Baingo, and Margaret Baingo, Ms wife, for themselves and their heirs, executors and administrators, do covenant and grant to and with the said party of the second part, her heirs, executors, administrators and assigns * * * that the said party of the second part, her heirs, executors, administrators and assigns, shall and may from time to time, and at all times after default shall be made in the performance of the' provisos or conditions herein recited and contained, peaceably and quietly enter into, have, hold, use, occupy, possess and enjoy all and singular the above granted and bargained premises, with the appurtenances, without the let, suit, trouble, hindrance or denial of the said party of the first part, their heirs or assigns, or of any other person or persons whatsoever.”

This covenant, viz., the covenant for quiet enjoyment, is one of the principal covenants for title, and even in a deed gives the grantee the benefit of a title subsequently acquired by the grantor. In the case of VanRensselaer v. Kearney, 11 How. 297, it is said that the principle deducible from the authorities is that “whatever may he the form or nature of the conveyance used to pass real property, if the seizin or possession of a particular estate is affirmed in the deed, either in express terms or by necessary implication, the grantor, and all persons in privity with him, shall be estopped from ever afterward denying that he was so seized and possessed at the time he made the conveyance. The estoppel works upon the estate and binds all after-acquired title as between parties and privies.” And, in the later ease of Ryan v. United States, 136 U. S. 68, it is said that “when one assumes by his deed to convey a title to real estate, and by any form of assurance obligates himself to protect the grantee in the enjoyment of that which the deed purports to give him, he will not be suffered afterwards to acquire and assert an adverse title, and turn his grantee over to a suit upon the covenant for redress.” It is unnecessary to multiply citations in support of a rule which is so universally observed and the existence of which is conceded by the court below.

It follows from what has been said that if the outstanding title which the complainant seeks to have voided had been set up against her by the mortgagor, he would have been held to be estopped to assert it against her. The present defendant, Mrs. Baingo, took the title to this land by devise from her husband, subject to the mortgage. She bought in the outstanding title of Gallagher with the proceeds of the mortgage. Under these circumstances, she is privy in estate with her deceased husband, and the estoppel binds her to the same extent that it would have bound him had he attempted to set up the adverse title.

The result therefore is that the complainant was entitled to the relief which she sought, and that the decree under review' must be reversed.

For affirmance- — None.

For reversal — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Vredenburgh, White, Terhune, Heppenheimer, Williams —14.


text:
    Fire Association of Philadelphia, appellant, v. Robert V. Schellenger, respondent.
    [Submitted December 7th, 1914.
    Decided June 14th, 1915.]
    1. While a contract of insurance is one of indemnity, and the insurer upon pa5'ment of the loss is at common law subrogated to the rights of the insured, the right of subrogation may be waived by the contract.
    2. A fire policy declared that if the insurer should claim that the fire was caused by the act or neglect of another, it should on payment of the loss be subrogated to the extent of such payment to all rights of the insured against the third person. The insurer paid a loss, making no claim that the fire was the result of another’s act. Thereafter, the insured instituted an action against a railroad company and recovered damages for its negligent firing of the property. — Held, that the insurer could not claim subrogation; the policy waiving that right, unless at or before payment of the loss, it made claim that the fire was the result of the act or neglect of the third person.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 83 N. J. Eq. 144.

      Mr. William C. French, for the appellant.

      Messrs. French & Richards, for the respondent.
   The opinion of the court was delivered by

Gummere, Chief-Justice.

The Fire Association of Philadelphia, the complainant below, issued a policy of insurance upon the property of Schellenger, the defendant below, for $3,000. One of the provisions of the policy was that

“If this Company shall claim that the fire was caused by the act or neglect of any person or corporation, private or municipal, this company shall on payment of the loss be subrogated to the extent of such payment to all right of recovery by the insured for the loss resulting therefrom, and such right shall be assigned to this company by the insured on receiving such payment.”

The properly insured having been injured by fire, the complainant paid to Schellenger, under its policy, $2,855, that being the amount agreed upon as the extent of its liability. Subsequently, the defendant brought suit against the Atlantic City Railroad Company, claiming that the fire by -which his property was injured was caused by sparks negligently permitted to escape from an engine of that company. A verdict of $6,000 was recovered in this suit;; and afterwards (a rule to show cause having in the meantime been allowed) the parties to that litigation compromised it for $3,000, and Schellenger executed to the company a general release of all liability for loss or damage occasioned by the fire. The case which the present respondent sought to establish in the court of chancery was that, having paid to the appellant the amount due on the policy issued by it, a right of subrogation immediately sprung into existence, under which it was entitled to receive, out of the proceeds of the litigation brought by Schellenger against the railroad company, reimbursement of the moneys paid by it under the policy.

The learned vice-chancellor who heard the case, after pointing out that an insurance against loss by fire is an indemnity which the assured holds, declared as a principle of law that when the insurer pays that indemnity to the assured, the latter becomes a trustee of the insurer to the amount of the payment, in the event of its future collection-by the insured from the person primarily liable for the loss; and held that this general principle of law was not at all modified, or affected, by the provision of the policy relating to the right to subrogation of the insurer which we have heretofore recited. As a necessary consequence of this view, he advised a decree in favor of the complainant; and from this decree the defendant appeals.

Whatever may be the extent of the right of subrogation residing in an indemnitor, under such a state of facts as the present ease exhibits, in the absence of any agreement upon the subject between the indemnitor and the indemnitee, we see no reason for denying the power of the parties to curtail, or even to destroy it, by mutual consent, if they see fit to do so. An agreement to that end runs counter to no provision of the written law, and is not opposed to any public policy of the state. The right of subrogation is a mere personal one, conferred solely for the benefit of individuals; and a right of this character may always be waived by the party in whom it resides. Quick v. Corlies, 39 N. J. Law 11. The rights of the parties to this litigation, therefore, must depend upon the meaning of the provision of the policy which deals with the matter of subrogation.

It is plain from a reading of this part of the contract that the parties to it intended that the right of the insurer, in case it paid the loss, should not be an absolute, but a conditional one; the condition being that the insurer should “claim that the fire was caused by the act or neglect” of some third person- We think it equally clear that the agreement contemplates that such claim should be made by the insurer to the insured at or before the time when it paid the loss. This appears from the fact that by its terms the right to subrogation, if it comes into existence at all, becomes complete when the payment is made. The language used is, “this company shall on payment of the loss be subrogated,” &c.; “and such right shall be assigned to this company by the insured on receiving such payment

There is no suggestion, either in complainant’s bill or in the proofs submitted by it at the hearing, that it made any claim to the defendant that the fire against which it had indemnified him had been caused by the act or neglect either of the Atlantic City Railroad Company, or of any other person, until many months after it had paid the moneys due under its policy. On the contrary, the fact appears that it made no such claim prior to the filing of its bill in this cause. Its failure to assert such claim at or before the time when the payment was made, was a failure to comply with the condition upon which its right to subrogatiox depended, and terminated the existence of that right, leaving the defendant free to so deal with the person responsible for the fire, with relation to a settlement of any claim against such person, as he might see fit, without any liability to be called to account by the complainant for any of the proceeds of such settlement.

The decree under review will be reversed.

For affirmance — None.

For reversal — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Vredenburgh, White, Terhune, Heppenheimer, Williams —14.


author: Garrison, J.

text:
    George H. Budke, complainant, v. Schalkenbach & Budke, incorporated, defendant.
    [Argued March 10th, 1915.
    Decided June 14th, 1915.]
    1. The general authority of the president of a business corporation does not warrant him in transferring contracts made by the corporation, or in assigning money not yet earned under such contracts.
    2. The case of Cogan v. Conover Manufaotwing Co., 69 N. J. Eq. 816, followed.
    On appeal of George G. Tennant, receiver, from an order of the court of chancery advised by Vice-Chancellor Howell.

      Messrs. Pitney, Hardin & Skinner, for the appellant.

      Mr. E. Max Appelgate, for the respondent.
   The opinion of the court was delivered by

Garrison, J.

This is an appeal by the receiver of an insolvent corporation from an order of the court of chancery allowing the claim of Joseph Morgan as a secured creditor. The learned vice-chancellor who advised the making of this order found that the claimant, dealing solely with the president of the corporation, lent to the corporation $2,000 to be secured by an assignment of a contract to be performed by the corporation in futuro. Later this contract and the money that might be earned under it up to $2,000 were assigned to the claimant by a writing-signed by the president of the corporation under its seal. There was no proof that the execution of this assignment was either authorized or ratified by the board of directors. The corporation retained the contract and proceeded with the work under it which, not being completed at the time of insolvency, was finished by the receiver who collected the balance due under the contract upon which a specific lien was claimed by the respondent and allowed by the court below. Hence, this appeal.

Assuming the correctness of the vice-chancellor’s conclusion that the corporation received the benefit of the money borrowed by its president, the validity of the assignment of the specific security for the loan rested solely upon the general authority of the president to make such assignment, for admittedly he had no express authority so to do. The general authority of the president of a business corporation being sufficient to warrant him in collecting outstanding accounts and in selling such accounts at their face value is sufficient to warrant him in assigning such accounts in discharge of the obligations of the corporation. This was held by this court in the case of Cogan v. Conover Manufacturing Co., 69 N. J. Eq. 816.

In the same case it was also held that: “The fifth assignment is of money not yet earned. We^ find, no authoritjr in_tlrg_pxesident to make that assignment and the claim of the appellant thereunder' is not valid.” The ground of the distinction that is thus made is twofold' — first, that the general authority of the president is limited to the ordinary business of the corporation, and second, that a contract made by the corporation cannot be varied or interfered with by a single officer thereof under his general authority. The assignment of a contract generally carries with it the right of the assignee to perform such contract; whereas the ordinary business of a corporation is to perform its own contracts; similarly if the money to be earned by a corporation under a contract is diverted to some other object by its assignment by a single officer the contract of the corporation has been interfered with in a material respect without its authority or assent and such assignment is invalid.

"Upon the authority of the case cited the order of the court of chancery brought up by this appeal is reversed.

For affirmance — None.

For reversal — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Vredenburgh, White, Terhune, Heppenheimer, Williams —14.


author: Swayze, J.

text:
    New York and New Jersey Lubricant Company, appellant, v. O. W. Young, a corporation, respondent.
    [Argued November 18th, 1914.
    Decided June 14th, 1915.]
    The complainant put on the market an article which it called “non-fluid oil.” It had the consistency of a grease and on account of its non-fluid character might popularly be called a grease. It was composed of oil to an extent varying from seventy-five to ninety-five per cent., and its consistency was obtained by a process of saponification, by which the particles of oil were supposed to be held in occlusion. — Held, (1) that the words “non-fluid oil” were descriptive and that complainant was not entitled to an exclusive property right therein; (2) that the product might fairly be called a grease or an oil, that the name “non-fluid oil” was not a material misrepresentation, and that the complainant was entitled to an injunction to restrain simulation by the defendant.
    On appeal from a decree of tlie court of chancery advised by Vice-Chancellor Stevens.

      Mr. Edward M. Colie (Mr. A. D. Kenyon of New York on the brief), for the complainant-appellant.

      Mr. Chester W. Fairlie (Lum, Tamblyn & Colyer on the brief), for the defendant-respondent.
   The opinion of the court was delivered by

Swayze, J.

The learned vice-chancellor held that the words “non-fluid oil” were descriptive and could not be exclusively appropriated by the complainant, and that as applied to the product marketed by the complainant under that name, they were descriptive. We agree with him that the words are descriptive. It is shown that there were oils like cocoanut' oil, palm oil, and cylinder oils that were non-fluid. There is no reason why any one dealing in those articles should not if he chose call them non-fluid oils, and it may well be that in the progress of knowledge other oils may be produced which shall have the property of being non-fluid; in fact, as will appear, we see no reason why the complainant’s product may not be called a non-fluid oil; if so, the defendant’s product may be called by the same name. The complainant is not entitled to an exclusive property right in ordinary English words which fairly describe a commodity that is or may be on the market.

We disagree with the vice-chancellor in his conclusion that the application of the name non-fluid oil to the complainant’s commodities is a material misrepresentation. The commodities are composed of oil to the extent of seventy-five to ninety-five per cent. By a process called saponification, the particles of oil are supposed to be held in occlusion, so that the resulting product is no longer fluid as the oil was before. In view of the fact that there are substances properly called oils which are not fluid or not always fluid, we see nothing in the meaning of the words non-fluid oil themselves to prevent their application to the complainant’s product. A product composed of oil to the extent of seventy-five per cent, may fairly be called an oil. The fact that it is not pure oil is not important. No one hesitates to call the ordinary water of our lakes and rivers, or that which has fallen in the form of rain, or has been produced by melting ice or condensing steam, by the name of water; nor does the name involve any misrepresentation because the product is not pure water but contains varying percentages of impurities; the name water is not deceptive because pure water is not to be found outside of laboratories. It is quite natural and not improper to call by the name of oil a substance of which 'oil forms seventy-five to ninety-five per cent. The addition of the word “non-fluid” merely adds a descriptive adjective the truth of which is not questioned. The only difficulty in the case arises from the fact that the parties agree that the complainant’s product was a grease; the complainant in the effort to persuade the court that the words “non-fluid oil” were irot descriptive and were subject to exclusive appropriation; the defendant in order to persuade the court-that the words-were deceptive.

The product might with propriety be called either an oil or a grease. The meaning of common English words is not determined a priori with scientific accuracy and nicety. Even the lexicographers seem to regard fluidity as a necessary characteristic of an oil, disregarding the existence of palm oil, cocoanut' oil, cylinder oils and vaseline. In the case of an article of commerce the meaning of a term is the growth of common usage of the mercantile community. One man looking at the consistency of the product, not unknown but somewhat unusual for an oil, might well call the article a^ grease; another knowing its actual composition and the mechanical character of the mixture which gave the desired consistency, might well call it an oil. In neither case would a purchaser be deceived. One to whom fluidity was desirable could not help seeing that the complainant’s article was not what he desired; the one to whom oil of such consistency as to be non-fluid, was desirable, would get what he wanted.

The vice-chancellor rightly found that in some, at least, of the defendant’s cans and packages, there was a design to imitate the make-up of complainant’s cans and packages. An examination of those produced before us at the argument justifies the vice-chancellor’s conclusion. Since we think the complainant is not precluded from relief by its own conduct, we think it was entitled to an injunction to restrain the simulation by the defendant of its products. To that end the decree must he reversed and the record remitted for further proceedings in conformity with this opinion. The complainant is entitled to costs in both courts.

For affirmance — Kalisch, Black, Williams — 3.

For reversal — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Vredenburgh, White, Terhune, Heppenheimer — 11.


text:
    Savings Investment and Trust Company of East Orange, complainant, v. United Realty and Mortgage Company, defendant
    [Submitted December 7th, 1914.
    Decided June 14th, 1915.]
    1. Part of a property which was subject to a paramount mortgage, was subjected to a second mortgage which expressly provided that it- was subject to the existing mortgage. — Held, that the rule of sale in the inverse order of alienation was not applicable, and that the part subject to the second mortgage must contribute to the payment of the paramount mortgage.
    2. A mortgage gave the mortgagor the right to have lots covered thereby released upon payment of specified amounts. — Held, that it was too late to demand a release after a decree of foreclosure had been made.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery.

      Mr. Samuel F. Leber, for the Traders Investment Company, appellant.

      Mr. Halsey M. Barrett and Mr. Randolph C. Barrett, for the Morris Machine Works, respondent.
   The opinion of the court was delivered by

Swayze, J.

This is a foreclosure suit. No question arises upon this appeal except that of priorities among subsequent mortgages. The mortgage of the respondent, Morris Machine Works, is prior in time to the mortgages of the appellant, Traders Investment Company. The vice-chancellor held that the land covered by the appellant’s mortgages should be first sold to satisfy the complainant’s mortgage, following the ordinary rule of sale in the inverse order of alienation. We assume in favor of the respondent that the rule is applicable in favor of the mortgagees as it is in favor of grantees who take an absolute title instead of one by way of mortgage .only. The question we have to determine is whether the language of the respondent’s mortage makes the rule inapplicable in this particular case. The language is:

“The property described in the within indenture is subject to an existing blanket mortgage held by the Savings Investment and Trust Company of East Orange, N. J., with release clause of ten dollars per front foot.”

The rule requiring sale of parcels of mortgaged premises in the inverse order of alienation is not one to be applied mechanically to all cases; it rests upon the real or presumed intent of the parties. As Vice-Chancellor Emery well said, in Jackson v. Condict, 57 N. J. Eq. 522 (at p. 526)“As between different portions of the premises subject to a common charge, the general and fundamental rule of equity is, that the burden is to be borne by the different portions ratably. The exception to the operation of this fundamental rule, which is made for the purpose of marshaling the portions in favor of a prior grantee of a portion of the premises, is based not on the simple fact of the earliest grant, but upon the conclusion that the character and circumstances of the earliest conveyance are such as show that it was the intention of the parties to the conveyance that the portion conveyed should be free from the common burden.” What, then, must we presume was the intent of the parties in the present case ? It is unusual to have a second mortgage made expressly subject to another mortgage. If the words “subject to a mortgage” had been found in an absolute deed of conveyance, it would, under our decided cases, have shown an intent to convey only the equity of redemption, and would have prevented the application of the rule of sale in the inverse order of alienation. Hoy v. Bramhall, 19 N. J. Eq. 563; Gray v. Hattersley, 50 N. J. Eq. 206. Yet the language might well be used in an absolute deed for a purpose other than that of indicating an intent to convey only the equity of redemption; it might be used to except the mortgage from the operation of the covenants for title. Moreover, unless an absolute deed is expressly made subject to an outstanding mortgage, the presumption is that it was meant to convey an unencumbered title, and the consideration paid is presumed to be the full value of tire land clear of encumbrance. Aldrich v. Cooper, 2 L. C. Eq. (4th Am. ed.) 296, 297.

A deed by way of mortgage is different. In the case of such a deed, the fact is that it is only by way of security and the presumption is rather that the amount secured is less than the value of the property. That being so, there is, in the absence of some special covenant by tire mortgagor, no obligation on his part that it can be presumed the parties meant should be made good by the mortgagor out of his remaining land. Unless he means by inserting .the words “subject to the mortgage” in the subsequent mortgage to indicate that the parcel therein described is to bear its share of the burden, there is no reason for inserting' the reference. With or without the reference, the mortgagor is liable to the mortgagee for the payment of the debt; with or without the reference the subsequent mortgagee gets no more security for the mortgagor’s obligation than the equity of redemption gives him; his right to have the assets marshaled, and the parcels sold in the inverse order of alienation, is clear without the reference. Some other object must have been in view of the parties when the words were inserted. The most natural object was to indicate to subsequent purchasers and mortgagees that the parcel in question was to bear its share of the common burden. The parties may sometimes intend to make the parcel in question primarily liable for the debt secured by the first mortgage, but the more natural way to effectuate that intent would be by a clause of assumption, as in Chancellor v. Towell, 80 N. J. Eq. 223. A grantee in an absolute conveyance may, but a subsequent mortgagee is most unlikely to assume that burden. Unless, therefore, we are to say that the words are meaningless, a result forbidden by the ordinary rules of construction, we must hold that they were meant to indicate that the liability was to be governed by the general and fundamental rule and to be borne by the different portions ratably. The case is one of the third class put in the notes to Aldrich v. Cooper, 2 L. C. Eq. 304.

The reference in the respondent’s mortgage to the provision for releases of the several lots contained in the complainant’s paramount mortgage fortifies our result. If it meant to give the mortgagee the same right to releases from the complainant’s mortgage which the mortgagor already had, the right would be the same as the right of the owner of other lots retained by the mortgagor, and would be inconsistent with the superior right now claimed to be exonerated at the expense of those lots. It would, at best be a right to contribute pro rata to the discharge of the complainant’s mortgagee; that is exactly what the respondent now denies. The reference to the release clause is hardly likely therefore to have been inserted for the benefit of the respondent. It was important for the mortgagor, since it indicated that the parcel mortgaged to respondent was to help bear the burden of the paramount lien. It serves no other purpose.

The clause in the complainant’s mortgage gave the mortgagor the right to have the lots released upon payment of the specified amounts. Whether the complainant could be compelled to release after default in payment of its" mortgage is a question not raised by the pleadings. Clark v. Cowan (Mass.), 92 N. E. Rep. 474, is to the contrary. In fact, payments were accepted and releases given after the default, in 1910, and as late as July, 1913. No demand has been made for a release since the bill was filed, and it is too late after the decree of foreclosure. Avon-by-the-Sea Land and Improvement Co. v. Finn, 56 N. J. Eq. 805. The mortgage has been merged in the decree, and it would be improper to permit new issues to be now raised.

The decree must therefore be reversed, so far as it directs a sale in the inverse order of alienation, and a decree made directing that all the lands still subject to the complainant’s mortgage be sold in parcels (the lots included in each of the subsequent mortgages constituting a single parcel), and that the complainant’s mortgage be paid out of the proceeds of the sale, each parcel contributing to the payment of the amount due in proportion to the price each parcel brings at the sale.

For affirmance — None.

For reversal — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Vredenburgh, White, Terhune, Heppenheimer, Williams —14.


author: Trenchard, J.

text:
    Samuel J. Prince, complainant and appellant, v. Charles E. Hart, executor, &c., defendant and respondent.
    [Argued March 16th, 1915.
    Decided June 14th, 1915.]
    Complainant by bill in equity sought to recover a bequest of “money in bank” which the bill averred amounted to $261.01. The executor of the will answered that the “money in bank” was only $164.01; that the personal estate was not sufficient to pay the debts without recourse to the money so bequeathed, and to the real estate, and that an application for an order for the sale of lands to pay debts was imminent. He further set up by way of cross-bill that complainant had obtained' from him a life insurance policy payable to the estate upon the statement that he wished to collect it to pay decedent’s funeral expenses, and that he collected the insurance money amounting to $215.50, but, instead of paying such expenses, he applied the money to his own use. The cross-bill prayed an accounting by the complainant of the insurance moneys. — Held, (1) that the matter set up in the cross-bill was germane to the subject-matter of the complainant’s bill; (2) that it was one of equitable jurisdiction; and (3) that a motion to strike out the cross-bill was properly denied.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Baches.

      Mr. William M. Jamieson, for the appellant.

      Mr. Martin P. Devlin, for the respondent.
   The opinion of the court was delivered by

Trenchard, J.

This appeal challenges the propriety of the order of the court of chancery dismissing the complainant’s motion to strike out the defendant’s cross-bill.

We are of the opinion that the motion was properly denied.

The complainant, Samuel J. Prince, sought by his bill to recover “money in bank” bequeathed to him by the last will of his deceased wife, Lillian A. Prince. The bill averred that the money amounted to $261.01.

The defendant, the executor of the will, thereupon filed an answer and cross-bill. The answer sets up that the bequest to Prince amounted to only $164.01; that decedent’s personal estate was not sufficient to pay the debts without recourse to such “money in bank” so bequeathed, and to the real estate, and that an application for an order to sell decedent’s lands for the payment of debts is imminent. The cross-bill sets up that, on the day of his wife’s death, Prince obtained from tire executor a life insurance policy payable to her estate upon the statement that he wished to collect the money to pay the funeral expenses; that he collected tire insurance money amounting to $215.50 and applied it to his own use and did not pay the funeral expenses or any other claims against her estate. The executor, therefore, by his cross-bill prayed that if it be found that any sum of money less than the amount of the insurance be due to Prince that he should be decreed to pay the executor the difference; and if it be found that there is no money due from the executor to Prince (that is to say, as we take it, if the legacy abates on account of the debts) then Prince should be decreed to pay the executor the amount of the life insurance policy.

. The appeal from the denial of the motion to strike out the cross-bill is rested upon the grounds — first, that the matter set up by the cross-bill is not germane to the subject-matter of the complainant’s bill, and second!, that it is not one of equitable jurisdiction.

We think these objections without merit.

Prince is suing for a legacy, and whether it is a specific legacy or not makes no difference. Whether that legacy is due to him or not depends upon the amount of the assets in the hands of the executor, since it is not charged upon lands. In order to ascertain the assets all of them must be taken into account, including the amount of the life insurance policy, which it is not denied reached Prince’s hands. If the proceeds of that policy are turned over to the executor it may be that there will be enough money to pay the debts and the legacy. If it is not turned, over to the executor the debts even will not be paid without resorting to the real estate. It is quite clear, therefore, that the matter set up in the cross-bill is germane to the subject-matter of the complainant’s bill.

We also think that the cross-bill involves a matter of equitable jurisdiction. If the allegations set forth in the cross-bill are true, Prince holds the insurance money that he collected on the policy in trust for the estate, and of course he may be compelled to account in equity.

The decree below will be affirmed, with costs.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Vredenburgh, White, Terhune, Heppenheimer, Williams —14.

For reversal — None.


author: Parker, J.

text:
    William C. Jones, petitioner-appellant. v. Anna P. Read-Jones, defendant-respondent.
    [Submitted November 23d, 1914.
    Decided June 14th, 1915.]
    Where husband and wife have been living apart by mutual consent, there must be satisfactory proof that the consent thereto was withdrawn and the marital duty was demanded, to turn such separate living into willful desertion.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, whose opinions are reported in 89 Atl. Rep. 29, and 83 N. J. Eq. 571.

      Messrs. Bourgeois & Coulomb and Mr. John W. Wescott, attorney-general, for the petitioner-appellant.

      Mr. Floyd H. Bradley, for the defendant-respondent.
   The opinion of the court was delivered bj^

Parker, J.

As will appear by reference to the two opinions in the court of chancery, the husband’s petition for divorce was at first unanswered, and the hearing was brought on ex parte before a special master. Evidence was taken in the usual way, and in due course the master reported in favor of granting a divorce, decree nisi was entered on the report, January 17th, 1913; and final decree followed on July 18th of the same year. In November the defendant applied by petition for a rehearing, claiming in substance that the decree had been procured by surprise and fraud. In considering the question of granting a rehearing the cause was retried in all its aspects in open court, and the vice-chancellor held that the decree should be opened; and treating it as opened and the cause as submitted on a rehearing, he advised a decree dismissing the petition. In concluding his opinion he reserved to the petitioner the right to present any further proofs desired, and apparently no offer of further proof was made.

The point is made on this appeal that the procedure by petition to open the decree was improper, and that there should have been a bill of review. If this is cognizable under a general ground of appeal “that the chancellor should have adjudged that the petition to open said final decree should have been dismissed with costs,” it will be sufficient to say that the matter was fully considered by the vice-chancellor, and that where the merits of the case have been fully presented by the pleadings and evidence, niceties of practice may well give way to the substantial merits. There is adequate authority for the proposition that when fraud and surprise are relied on to open an apparent default, a decree may he opened on petition even after enrollment. White v. Smith, 72 N. J. Eq. 697, 701, and cases cited; Day v. Allaire, 31 N. J. Eq. 303, reversing 30 N. J. Eq. 231. We are not disposed to disturb the decree on this ground. The consideration of the whole case by the court below in connection with the petition to open the decree is not seriously questioned here.

This brings us to the merits; and on this phase of the case, upon a careful consideration of all the evidence, we conclude that the court of chancery did not abuse its discretion in opening the decree, and that the second decree, dismissing the petition for divorce, should be affirmed. Deference may be made to the two opinions filed in the court below (89 Atl. Rep. 29; 83 N. J. Eq. 571) with respect to the chronology and sequence of events in the case; but we are very far from subscribing to the findings of the court below as to the conduct or motives of the parties and especially of the petitioner. The vice-chancellor seems to have become convinced that the petitioner had attempted 'to impose upon the court, and secure a divorce by deceiving his wife into suffering a default, and by suppressing material facts on the ex parte hearing, and this conviction apparently colored his whole view of the case.

With the finding that-the defendant was “deprived of her day in court by the deceitful and fraudulent machinations of the petitioner'’ we disagree in toto. The process was served on defendant in tlie regular way by a sheriff’s officer, and within this state. And when petitioner was consulted on the matter by his son and daughter, after the citation was served, an important -question, if not the important one, was whether Mrs. J ones must “go to Trenton” — a question constantly asked by all defendants unused to chancery litigation, and suggested by the language of the process. If petitioner used the language attributed to him by the son and daughter, it may be said that that language was sufficiently ambiguous, without any fraudulent intent on his part; to permit of the construction that he would not press the suit, though the son himself says that his father did not say the matter would not be pushed any further. The exercise of the court’s discretion in opening the decree is supported by us on the ground that it was not unreasonable for defendant to conclude, from what was said to her, that the suit was not to be pushed; but we think there is no substantial ground for holding that petitioner intended or expected that such a conclusion should or would be drawn.

The petitioner was further found to have attempted an imposition on the court by the suppression and moulding of evidence.

The subject of this finding is a reputable -member of the bar of this state, a counselor-at-law. We are not aware that anything unprofessional has heretofore been charged against him. He was represented in the court below and in this court by counsel of high standing, long experience, and extensive practice. It must be assumed that he sought and was guided by their advice. While we agree that, for reasons to be shortly stated, he was not entitled to a divorce, we do not agree that there was any attempt or purpose to deceive or impose upon the court.

The ground of divorce invoked was willful, continuous and obstinate desertion for two years and over. That the parties had not lived together for about six years is conceded. The question then was whether such separation resulted from the act of tlie wife and against the will of the husband. An examination of the marital life of the parties as disclosed on the evidence, has been a most painful task. Both were people of position and standing in Camden. Plainly they were mismated; and when, after some ten years of more or less unhappy married life, full of mutual misunderstanding and recrimination, she left him and went to live at Swarthmore, there ensued a period of enforced celibacy that usually leads to disaster. He came to see his children, but he and his wife avoided each other. Each claims that the other abhorred a meeting. We think each honestly believed this but was deceived. Jones thought his wife did not wish to see him and was too proud to force his presence on her undesired; so he sent her word of his intended visits. She plainly took this as meaning that he did not wish to see'her, and with similar pride kept out of his way even though she m'ay have yearned to see him. And so matters went from bad to worse, with no opportunity for explanation until the situation became so intolerable that Jones resolved to end it if he could. Certainly, if he had, or honestly thought he had, any reasonable ground to end it, he was justified in attempting it. And no one should blame him for construing a home found gutted of all its contents except the marriage certificate staring from a blank wall, as notice that his wife had left him and did not wish to see him again as a husband, and so, quite reasonably, as it seems to us, he and his counsel coupled this occurrence of September with the departure to Atlantic City in June and deduced the conclusion that she had intended her departure for the summer as the termination of marital relations. No wonder that thereafter he did nothing that could be interpreted as forcing his society upon her.

He is blamed by the court below for not presenting his whole case, or more of it, before the special master. But his motive was perfectly obvious, viz., to avoid unnecessary scandal by exploiting the family skeleton on the chancery records. It is safe to say that under ordinary circumstances, if several grounds of divorce are available, the least scandalous will be chosen; and where parties of respectability and standing try to avoid unnecessary airing of their soiled linen in court, their action is not only not necessarily blameworthy, but often commendable. Usually the sex relation is at the bottom of the divorce case, in some form, and there is an element of it here, in the accusation by each party that the other did not wish children. Manifestly, it were better to leave that phase out of the ex parte evidence as bearing only remotely on the question of desertion, if at all; and petitioner purposely omitted it. Similar comments might be made on other phases of the case. In connection with this matter, the remark in the opinion that the wife left her husband's bed because of an indignity, is most unjust, though doubtless unintentionally so, in the inferences that might be drawn from it. The “indignity” consisted simply in the alleged fact that once when the parties were in bed together, she touched him accidentally and he shrank away; an action which she at once interpreted as meaning that neither then nor at any other time did he desire her to be in the same bed with him.

Speaking generally, the conduct of the case before the special master was consistent with this theory, which we believe to be the true one: that Jones believed with good ground that his wife had deserted him and did not intend to come back; that a divorce was the best way to end their difficulties; that she would welcome such action; and that the presentation of a case of desertion in its simplest form and avoiding painful detail would be preferred by her as it was by him. In this he was not unreasonably confirmed by her non-appearance in the suit. And, as long as a ease is presented on the evidence that fairly meets the requirements of the statute, there is no reason why any court should, in an ex parte trial, require the disclosure of painful personal detail that would be of value only as corroborative of the evidence presented.

We have gone into the matter at some length because we axe not willing to leave a reputable member of the bar, represented by reputable and experienced counsel, adjudged guilty of securing a default by fraud and of having imposed thereafter on the court by suppressing material facts.

The decree, however, must be affirmed, and for this reason: The intent, to desert in June is not satisfactorily shown. The removal to Swarthmore to live was not objected to by petitioner; at least it was not made an issue. His assistance in making the arrangements there plainly implied consent. So, that the separation at that point was voluntary. And at no time thereafter was the alternative squarely placed before the wife of returning to his house or refusing to do so. So, it cannot be said that the period of willful and obstinate desertion ever commenced. The case of Currier v. Currier, 68 N. J. Eq. 7, 797, is one of a line of decisions that lay down the rule here applicable.

The decree of the court of chancery is affirmed.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Black, Vredenburgh, White, Heppenheimer — 11.

For reversal — Williams—1.


author: Bergen, J.

text:
    The Fire Association of Philadelphia, complainant, v. Thomas Wells, defendant.
    [Submitted December 17th, 1914.
    Decided June 14th, 1915.]
    1. The right of subrogation accruing to an insurance company to recover from a tort-feasor, through whose negligence the loss was incurred, the amount paid on its policy of insurance, is not barred by a settlement between the tort-feasor and the owner for a sum less than the actual liability of the former, and for which the latter gave a full release, for such a release is a fraud upon the subrogee which will be no defence either at law or in equity to its action to recover the loss remaining unsatisfied after applying to its satisfaction the sum paid by the tort-feasor.
    2. Where the subrogee proceeds in the first instance against the insured and in that proceeding it appears that the damages for which a tortfeasor is liable to an insured exceeds the sum for which the insured settled with him, and that a sufficient sum remains unpaid to satisfy the subrogee, such a conclusion is final between the parties to the record.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 83 N. J. Eq. 140.

      Mr. Frank Smathers, for the complainant.

      Messrs. Wescott & Weaver, for the defendant.
   The opinion of the court was delivered by

Bergen, J.

Certain of defendant’s buildings, with their contents, were destroyed by a fire communicated through the negligence of the servants of the Atlantic City Railroad Company. The buildings were insured by the complainant company to the extent of $2,000, and, after the fire, complainant paid defendant the full amount of the insurance on the building, the replacement cost of which, according to the undisputed testimony, would be $4,575, and received from defendant an assignment of any right of action, to the extent of the payment, which he might have against any person responsible for the, loss. Subsequently, defendant compromised his claim against the railroad company and was paid $5,000, for, as he testified, his “damage to goods that were destroyed that never was insured,” and gave the company a release and discharge from all claims and demands which he had against it for damages for the destruction of both buildings and contents. When the settlement was made with the railroad company, it knew that complainant had paid $2,000 on account of the lo«s resulting from the burning of the buildings as required by its policy. The total loss suffered by defendant, on buildings and contents, exceeded $7,000. With the facts, substantially as stated, the complainant filed its bill of complaint praying that defendant be decreed to refund to it the $2,000 paid him, upon the ground that it was estopped by defendant’s release to the railroad company from proceeding in his name to recover from it the unpaid damages for which the company was liable, which complainant claims it is entitled to by right of subrogation. The vice-chancellor held that the legal effect of the release was to bar complainant of its right to proceed in defendant’s name against the railroad company, and decreed that the defendant must refund the $2,000, leaving him but $5,000 on account of a loss which it is not disputed exceeded $7,000. We are of opinion that this result is not equitable, for the release was not, under the facts, a bar which estopped the complainant from asserting its right as subrogee. Both defendant and the railroad company knew, or are chargeable with knowledge, that the complainant had upon pajanent become entitled by subrogation to call upon the railroad company to reimburse it the money it paid the owner on its policy of insurance, and they could not defeat that right by any arrangement they might make without complainant’s consent. If the loss for which the railroad company was liable amounted to $7,000, it has not liquidated its responsibility by paying $5,000, and until it has discharged its liability, the rights of a subrogee cannot be destroyed by obtaining a release upon paying to the insured what he deemed to be the residue of his loss, for a release of that nature is such a fraud upon the subrogee as will avoid it both at law and in equity, so far as it affects the rights of the subrogee. Monmouth Fire Insurance Co. v. Hutchinson, 21 N. J. Eq. 107. In that case, the buildings destroyed were insured for $1,800; the destruction was caused by sparks of fire negligently communicatéd by a railroad company and the loss amounted to $4,000. The owner was paid the insurance. With knowledge of this fact, the railroad company settled with the owner for $2,000 and took a full release and discharge. The insurance company then filed its bill of complaint, praying that the owner and the railroad company pay to it $1,800, the amount of the insurance it had paid; and it was there held that as the railroad company had not paid all the damages for which it was responsible, it was liable to the insurer to the extent of so much of its liability for the loss as still remained undischarged, and that a general release by the owner to the railroad company would bo no defence to an action by the insurance company, This result removes the footing upon which the vice-chancellor rested the decree appealed from and requires us to consider the equities presented by this record which the vice-chancellor did not pass upon, because of the effect given by him to the release. Assuming, as we hold, that the release does not bar the complainant, as subrogee, from proceeding in the name of the owner against the tort-feasor, and, as we must, under this record, that the latter has paid only so much of the entire loss for which it was responsible, as remained unsatisfied after applying to its payment the money received from the complainant, the only equitable basis upon which the complainant can rest its right to maintain this bill against the defendant is eliminated.

Where the owner has settled with a tort-feasor for less than its liability, in derogation of the rights of a subrogee, the latter may bring an action in the name of the owner, without his consent, to establish its liability, and out of any recovery be made whole for the amount paid, if the recovery so far extend. The suit must be in the name of the owner, and if there be more than one subrogee, the proceeds will be distributed equitably between them, for there is but one wrong, suffered by one party, the owner, and it can only be enforced in one suit and not by splitting the claim between several persons entitled to a part, because of different rights resting upon subrogation. Norwich Union Fire Insurance Co. v. Standard Oil Co., 8 C. C. A. 433; 59 Fed. Rep. 984; Connecticut Mutual Life Insurance Co. v. New York and New Haven Railroad Co., 25 Conn. 265. The complainant liaving chosen his forum, and submitted to its adjudication the question involved, it is concluded by the determination in this court of the issues presented and contested, so far as the parties to this record are concerned. That the complainant has chosen to attempt to charge the defendant upon the ground that the release was a bar, rather than proceed at law against the tortfeasor to establish the extent of its liability, does not concern the defendant. He has met the issue presented and shown that his loss exceeds the sums paid both by the railroad company and by the complainant, and therefore he is not liable to his subrogee,, for the right of the complainant is against the fund resulting from the liability of the tort-feasor in excess of the amount received to fully compensate the owner, and if there be no such excess, then there is nothing to which it can be subrogated.

The decree will be reversed and the record remitted with a direction that the bill be dismissed, with costs.

For affirmance — None.

For reversal — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Vredenburgh, White, Terhune, Heppenheimer, Williams —14.


text:
    John S. Truitt, surviving executor, appellant, v. Barclay B. Lawrence et al., respondents.
    [Submitted March 22d, 1915.
    Decided June 14th, 1915.]
    A trustee applied to the orphans court to be discharged from his office, and the application was granted upon accounting and paying- over the trust fund in his hands. He filed his account charging himself with the corpus of the fund and praying- allowance for different sums which he claimed to have paid to the respective beneficiaries as represented by certain written releases in satisfaction of the entire corptis. The beneficiaries filed exceptions to the account upon the ground that the accountant had not charged himself with interest, and that he had not paid the real sum for which the releases were given, and therefore the allowances prayed were excessive. The orphans court tried the question of the bona fides of the releases and refused to give them the effect which their words imported, and reduced the. allowances to the sums actually paid. — field, that the orphans court had no power, upon such an accounting, to reform or set aside the releases, or to determine their force, and that in such case its jurisdiction was limited to ascertaining the amount for which the trustee should bo liable, leaving the effect to be given to the releases to be settled when payment of the trust fund, as determined by the accounting, is sought to be enforced.
    On appeal from a decree of tlie prerogative court advised by Vice-Ordinary Learning.

      Messrs. Kaighn & Wolverton, for the appellant.

      Messrs. Ott & Carr, for the respondents.
   The opinion of the court was delivered, by

Bergen, J.

This appeal brings under review a decree of the prerogative court affirming that of the orphans court of the county of Gloucester sustaining exceptions to an accounting in that court by the appellant, of a trust fund which came to him as executor and trustee under the last will and testament of Browning Lawrence. The executors were named in the will, and they qualified, but before the estate was settled, one of them died and this appellant was appointed as his successor. It also appears that the other executor died before the estate was settled, and that the appellant as surviving executor settled his account as executor in the orphans court of the county of Gloucester. That account, and decree thereon is not made a part of this record, but it sufficiently appears that there remained in his hands to be held in trust, $2,000 for the benefit, during life, of the widow of testator’s brother, with remainder to her two daughters, and also the sum of $4,478.10 each, to be held in trust during life, for Elijah, Barclay B. and Horace W. Lawrence, three of the testator’s brothers, with remainder to their children. Shortly after this accounting, the appellant filed a petition praying to be discharged from- the duties of his office as trustee,' and an order was made by the orphans court discharging him therefrom, upon his accounting for, and paying over the assets of the estate coming into his hands. The trustee then filed the account to which exceptions were interposed and sustained in the orphans court, and affirmed in the prerogative court, from which tire trustee appeals. The accountant charged himself wiih the $2,000 trust, and with the three sums of $4,478.10 each, held in trust for the three brothers, and prayed allowance for payments made to each of them to the extent of $4,478.10. Elijah and Barchiy B., and his children, filed exceptions to this account upon two grounds — first, that the accountant had not charged himself with interest on the corpus of the fund, and seoovd, because he had not in fact paid the sums he claimed allowance for. Upon the hearing, the accountant produced releases, one of them executed by Elijah, and some of his children, two having assigned their interest to him, and another from Barclay B. and his children, and claimed that he was entitled to be credited with the sums named in the releases. The sufficiency of these releases was contested by the exceptants upon the ground that only $2,401.58 was in fact paid to each of these beneficiaries, although the releases purported to acknowledge the receipt of $4,478.10 each, and the orphans court thereupon proceeded to try that question, and determined that the releases were only worth as a credit the sum actually paid, and decreed that the accountant was not entitled to be allowed a greater sum than he had actually paid, and also that he should be charged with interest from the date the trust funds came to his hands as such. We consider this proceeding irregular because not within the jurisdiction of the orphans court, for that court has no power to reform or set aside the releases given by the beneficiaries to appellant in discharge of his obligation as trustee. It has jurisdiction over the accounting, and to ascertain the balance for which the trustee must account, charging him with the corpus that has come to his hands, and allowing all legal disbursements in its administration, and to fix the sum for which he is liable, but-when the sum to be paid to beneficiaries by an accountant is fixed, the payment of the amount adjudged to be due, becomes a question between the accountant and the beneficiaries, and if they cannot agree, the legal efficacy of payments, and the releases relating thereto, must be determined in a proper proceeding instituted to enforce payment of the trust fund. The orphans court has no power to adjudicate upon, establish, or enforce a trust. O'Callaghan's Case. 64 N. J. Eq. 287. The testimony in this case shows, that the accountant, becoming insolvent, made a settlement with the life tenants and remaindermen by paying over to them what money he was able to raise, and giving his personal bond for the balance, and they thereupon executed the releases in question, and this, appellant claims, was a compromise and settlement of all that he owed, while the exceptants insist that they are not bound by the settlement, notwithstanding they executed to the accountant their releases manifesting such a settlement. What the orphans court did in effect, was to set aside these releases, and while that may be done in a proper forum, upon evidence justifying it, the orphans court has no such jurisdiction, and tire determination of their legal efficiency as a discharge is not within the statutory jurisdiction of the orphans court. While we disapprove of so much of the proceeding as undertook to deal with the effect of the releases as a discharge, the decree appealed from surcharges the accountant with interest, which we consider proper, it also allows credit for money actually paid on account of the trust fund, and as the practical effect of the decree is to charge the accountant with the balance, and. as the balance charged against him is payable, or not, according to the effect to be given to the releases when that question is properly raised, an affirmance of this decree will result in substantial justice, although the method is not approved. The affirmance will be without prejudice to the right of the accountant to avail himself of the releases as a defence against the enforcement of the payment of the balance found against him by the decree, to the extent he would have been entitled to use them except for the finding and decree of the orphans court. The effect of the releases as a defence on behalf of the appellant has not been considered by us, and that question is not to be affected by the affirmance of this decree.

The decree will be modified to carry out- the views of this court above expressed, but without costs.

For affirmance — None.

For reversal — None.

For modification — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Vredeneurgh, White, Terhune, Heppenheimer, Williams —14.


author: Minturn, J.

text:
    Edward B. Hollinshead, executor of the last will and testament of Joseph O. Hollinshead, deceased, v. Mary B. Wood et al.
    [Argued March 22d, 1935.
    Decided June 14th, 1915.]
    Where a testator by will bequeathed to his daughter “all bonds and mortgages covering real estate, which I may possess at the time of my decease,” and it appeared that among other securities he held four railway bonds, secured by a trustee mortgage, covering the real and personal property of the railway company — Held, that the language employed by the testator was not intended to transfer the ownership of the bonds thus secured. — Held, further, that the language employed by the testator must be applied in its ordinary meaning and acceptation, in the absence of a contrary intent expressed in the will, as applying to bonds and mortgages held by him directly or-by assignment upon distinct parcels of real estate.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes.

      Mr. William C. French, Mr. F. Lawrence Dudley and Mr. William D. Lippincott, for the complainant.

      Mr. Frederic R. Brace, Mr. B. Stanger Iszard and Mr. Thomas B. Mill, for the defendants.
   The opinion o£ the court was delivered by

Minturn, J.

This bill was filed to construe the following clause in the will of Joseph C. Hollinshead, deceased:

“I give, devise and bequeath unto my daughter, Mary B. Wood, absolutely, all bonds and mortgages covering real estate which I may possess at the time of my decease,” as applied to the disposition of seven bonds of which the testator died possessed. Of these seven bonds two .were trust certificates of the Philadelphia Electric Company, and one a trust certificate of the Electric and People’s Traction Company, each of these three being of a par value of $1,000 and secured by the deposit of corporate capital stock in the hands of the trustees. These three bonds were deemed by the court of chancery not to be within the description, “'bonds and mortgages covering real estate,” and so did not piass to Mary B. Wood, but became a part of the residue which by the will was to be divided equally between Mary B. Wood and Edward B. Hollinshead, testator’s two children. The four bonds, the disposition of which is the real subject of this appeal, are obligations of the Camden and Suburban Railway Company, and, admittedly, are secured by a mortgage, made to a trustee for the bondholders and covering all of the real property as well as all of the personal property of the company.

We are unable to agree with the learned vice-chancellor’s construction that the four bonds in question, secured by a. mortgage to the trustee of the Camden and Suburban Railway Company, are to be included within the reasonable and proper interpretation of the language “bonds and mortgages covering real estate.”

This language, we assume, was applied by the testator in its ordinary signification and common use, to indicate bonds and mortgages held by the testator either directly as mortgagee or by legal assignment upon specific parcels of real estate. We must assume that the testator in choosing language to express his intent used the expressions chosen in their ordinary and popular acceptation.

The fundamental rule applicable to such a situation has been stated to be that courts, .both, of law and equity, will construe words according to their strict and primary acceptation, unless from their immediate context, or from the intention of the parties apparent on the face of the instrument, the words appear to have been used in a different sense; or unless in their strict sense they are incapable of being carried into effect. Ordinarily, the court will understand words used in their popular sense, and will interpret the language secundum subjectum materiem. Pollock C. B. Mallan v. May, 13 M. & W. 511; Hallowell v. Morrell, 1 Scott N. B. 309; Marshalls, Executor, v. Hadley, 50 N. J. Eq. 548; Stout v. Cook, 77 N. J. Eq. 153; Bennett v. Van Riper, 47 N. J. Eq. 563.

The case of Hammil v. Swan, 61 N. J. Eq. 179, relied upon in the court below, does not militate against this cardinal doctrine, but rather consists therewith. In that case the language employed by the testator was “all bonds and mortgages of every kind whatever,” sufficiently generic it will be observed to include any species of mortgage obligation.

In this instance, the mortgage securing the bonds in question was not held by the testator, but by a trustee for the benefit of the bondholders, and, ordinarily, and legally speaking, it is not supposed to be an obligation which the bondholders can “possess,” but only a security which can be legally enforced in their interest by the trustee mortgagee eo nomine.

In no sense, therefore, can it be said in the language of the will that the testator was in possession of the mortgage in question.

The result is that the decree of the court of chancery will be reversed to accord with these views.

For affirmance — None.

For reversal — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Vredenburgh, White, Terhune, Heppenheimer, Williams —14.


author: White, J.

text:
    The Guaranty Trust Company of New York, complainant-respondent, v. Newark Meadows Improvement Company and The Pennsylvania Railroad Company et al., defendants-appellants.
    [Submitted March 22d, 1915.
    Decided June 14th, 1915.]
    Where an interstate railroad company constructs for a shipper upon credit a commercial siding upon the latter’s land and recovers a judgment against him for the unpaid cost thereof, such judgment is not entitled to priority in lien or distribution of proceeds of a foreclosure sale to mortgages given and duly recorded long before the siding was constructed. The claim that this view will result in a purchaser at foreclosure sale, where the proceeds were insufficient to pay both the mortgages and the judgment, obtaining the benefit of a discrimination illegal under the Interstate Commerce act of congress, is without merit.
    On appeal from a decree of the court of chancery made by the chancellor.

      Messrs. Vredenburgh, Wall & Carey, for the appellants.

      Messrs. Collins & Corbin and Messrs. Edwards & Smith, for the respondent.
   The opinion of the court was delivered by

White, J.

This is a foreclosure suit in the court of chancery upon two mortgages given and duly recorded in 1908 by one of the defendants, the Newark Meadows Improvement Company, to the complainant. The other defendant, the Pennsylvania Railroad Company, holds a judgment- against said Newark Meadows Improvement Company entered in 1913, for which judgment it, by its answer, claims a lien prior to that of the two mortgages of 1908, oil the ground that such judgment represents the cost of the construction by the railroad company of a commercial siding on the mortgaged premises in 1910 at the request of and under written contract with said Newark Meadows Improvement Company and upon the promise of the latter to pay said cost, which promise was-not performed.

It is claimed that this extraordinary interposition of a subsequent judgment as a prior lien results from the provisions of the Interstate Commerce act and its supplements, whereby a common carrier, on application of any shipper tendering interstate traffic for transportation, is required to construct, maintain-and operate, upon reasonable terms, a switch connection with any private siding which may be' constructed to connect with its railroad, where such connection is reasonable, &c.; and whereby also the giving or receiving of unjust discrimination, preference or advantage as between shippers in any manner or under any device whatsoever is prohibited. It is said that the cost of constructing the siding track in question upon the mortgaged property, not having been paid by the Newark Meadows Improvement Company as promised, if the mortgagee shall be permitted to foreclose its mortgages as prior in lien to the railroad company’s judgment, the purchaser at the foreclosure sale, if the proceeds realized therefrom shall be insufficient to discharge, first, the two mortgages, and then the judgment, will acquire the benefit of a side track connected by a switch connection, with the railroad company’s interstate railroad without such side track having been paid for, whereas other shippers have to pay for their side tracks; and that this would constitute such an unjust discrimination, preference or advantage between interstate shippers as is prohibited by the statute. The court of chancery entered a decree denying this contention on the part of the defendant, the Pennsylvania railroad, and establishing the lien of said two mortgages as prior to that of the judgment in question, and it is from this decree that this appeal is taken.

We think that the decree should be affirmed. Even if there were some merit in the theory of appellant’s contention, we are unable to see its application. The Interstate Commerce act required the interstate carrier to construct "a switch connection” between its railroad and the side track of its customer upon reasonable terms and without discrimination, &c. For some reason, best known to itself, the carrier in this case undertook to construct, not the “switch connection” (for that was paid for and is not represented in the judgment), but the customer’s side track itself, and that not upon “reasonable terms,” but upon credit extended to a customer whose only property, so far as appears, was subject to about-four million dollars of recorded prior mortgage indebtedness. It seems to us the appellant might just as well and with as much reason have constructed a dwelling-house or at least a warehouse for a shipper upon his mortgaged premises, and upon credit, and then have claimed a judgment lien prior to that of the recorded mortgage debt already long in existence.

But, overlooking its obvious inapplicability, we are still unable to see any merit in appellant’s contention. This contention seems to be that because appellant cannot discriminate in affording switch connections, and its customers cannot accept such discrimination, it may, by voluntarily extending credit to one. person for the cost of a switch connection, create an obligation to pay for it against another person who never asked for it and whose only interest consists in a vested property right protected by both the federal and the state constitutions, which it is proposed to thereby destroy. The mere statement of such a proposition carries its own refutation.

The eases cited by the appellant, where contracts of various kinds securing to shippers advantageous discriminations were held void as against the Interstate Commerce act, although made prior to its enactment, have no application to the present case. Those cases are governed by the principle so well stated by Mr. Justice Hughes, speaking for the supreme court of the United States, in Philadelphia, B. & W. R. Co. v. Schubert, 224 U. S. 606; 59 L. Ed. 911, where he said:

“The power of congress', in its regulation of interstate commerce. * * * to impose this liability, was not fettered by the necessity of maintaining existing arrangements and stipulations which would conflict with the execution of its policy. To subordinate the exercise of the federal authority to the continuing operation of previous contracts, would be to place, to this extent, the regulation of interstate commerce in the hands of private individuals and to withdraw from the control of congress so much of the field as they might choose, by prophetic discernment, to bring within the range of their agreements. The constitution recognizes no such limitation. It is of the essence of the delegated power of regulation that, within its sphere, congress should be able to establish uniform rules, immediately obligatory, which, as to future action, should transcend all inconsistent provisions. Prior arrangements were necessarily subject to this paramount authority.”

In the present case, no such contracts to secure advantageous discrimination are involved. So far as appears, there was no discrimination whatsoever in putting in this switch connection (assuming that it was a switch connection, which, as before stated, it was not), nor in the charge made for so doing. Much less was there any contract’to make such discrimination. All that is involved here is an attempt to take one person’s property for the debt of another without any contract or other obligation of any kind, express or implied, as a justification for so doing. This, of course, cannot be done.

The decree is affirmed.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Vredenburgh, White, Terhune, Heppenheimer, Williams —14.

For reversal — None.


author: Per Curiam.

text:
    Wilbur J. Adams et al., complainants, v. The Lambertville Light, Heat and Power Company of New Jersey, defendant.
    [Argued March 11th, 1915.
    Decided June 14th, 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Baches, whose opinion is reported ante p. 96.

      Mr. William J. Kraft, for the complainants.

      Mr. Scott Scammell, Mr. W. Holt Apgar and Mr. Edward W. Hunt, for the defendant.
   Per Curiam.

The decree order appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Backes.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Vredenburgh, White, Terihune, Heppenheimer, Williams —14.

For reversal — None.


text:
    William Burdge, by next friend, complainant-appellant, v. J. Mortimer Johnson et al., defendants-respondents.
    [Argued March 17th, 1915.
    Decided June 14th, 1915.]
    On appeal from two orders of the court of chancery advised by Vice-Chancellor Griffin, one directing the revival of the suit, and the other refusing to strike out defendants’ cross-bill.

      Mr. William J. Leonard, for the appellant.

      Mr. John E. Foster, for the respondents.
   Per Curiam.

Our consideration of this case leads us to the conclusion that both the order reviving the suit, and the order refusing to strike out defendants’ cross-bill, were justified by the facts appearing in the cause; and that therefore each of them should be affirmed.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Vredenburgh, White, Terhune, Williams — 12.

For reversal — None.


text:
    Battery Park National Bank, complainant-appellee, v. Williams Allen Hunt et al., defendants-appellants.
    [Argued March 15th, 1915.
    Decided June 14th, 1915.]
    On appeal from a decree of the court of chancery-advised by Vice-Chancellor Lewis, whose opinion is reported in 83 N. J. Eq. 521.

      Messrs. Condict, Condict & Boardman, for the respondents.

      Mr. Arthur F. Egner and Mr. Robert H. McCarter, for the appellant.
   Affirmed.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Vredenburgh, White, Terhune, Heppenheimer, Williams —14.

For reversal — None.


text:
    Albert Bollschweiler, complainant, v. Packer House Hotel Company, defendant.
    [Submitted March 22d, 1915.
    Decided June 14th, 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 83 N. J. Eq. 459.

      Mr. John A. Coan, for the complainant.

      Mr. Joseph E. Stricker, for the defendant.
   Per Curiam.

The decree order appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Emery.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Vredenburgh, White, Terhune, Heppenheimer, Williams —14.

For reversal — None.


text:
    James DeWitt Fay, complainant and respondent, v. Francis M. Herbert et al., defendants and appellants.
    [Submitted March 22d, 1915.
    Decided June 14th, 1915.]
    On appeal from a decree of tlie court of chancery advised by Vice-Chancellor Backes, whose opinion is reported ante p. 438.

      Mr. William P. McMichael, for the respondent.

      Mr. Halsted H. Wainright, for the appellants.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Baches.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Vredenburgh, White, Terhune, Heppenheimer, Williams —14.

For reversal — None.


text:
    Charles S. Hinchman, complainant-respondent, v. Philadelphia and Reading Railway Company, defendant-appellant.
    [Argued November 20th, 1915.
    Decided June 14th, 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis.

      Mr. Frank S. Katzenbach, for the appellant.

      Mr. Gilbert Collins, for the respondent.
   Per Curiam.

So far as the decree appealed from provides for the appointment of a receiver, and the sequestration of the property of appellant company located within the State of New Jersey,-we think it cannot be sustained. The remaining portions of the decree are justified by the facts proved; and to that extent the decree will be affirmed.

The respondent is entitled to costs.

For affirmance — None.

For reversal — None.

For modification — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Vredenburgh, White, Terhune, Williams — 13.


text:
    The Ocean City Land Company, appellant, v. Sarah C. Weber, respondent.
    [Argued March 5th, 1915.
    Decided June 14th, 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 83 N. J. Eq. 476.

      Mr. Charles C. Babcock, for the appellant.

      Messrs. Bourgeois & Coulomb, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Learning.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Vredenburgh, White, Terhune, Heppenheimer, Williams —14.

For reversal — None.


text:
    Edna Leslie Pittis, respondent, v. William H. Pittis, appellant.
    [Submitted December 7th, 1914.
    Decided June 14th, 1915.]
    On appeal from a decree of the court of chancery advised by Advisory Master Charles H. Hartshorne.

      Mr. William J. Connor, for the appellant.

      Mr. Wilfred H. Jayne, Jr., and Mr. Halsted H. Wainright, for the respondent.
   Per Curiam.

The decree appealed from divorced, a mensa et thoro, the petitioner from her husband for extreme cruelty inflicted upon her by him. Our examination of the testimony taken on the trial of the cause, and set up by the court below, satisfies us that the finding of the advisory master that the charges laid against the defendant, by the petitioner in her petition, Avere fully supported by the proofs submitted, and entirely justified the decree rendered.

The decree under revieAV will be affirmed.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Vredenburgh, White, Terhune, Heppenheimer, Williams —14.

For reversal — None.


text:
    Franklin B. Seidel et al., complainants-appellants, v. Robert D. Mills et al., defendants-respondents.
    [Submitted March 22d, 1915.
    Decided June 14th, 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson, whose opinion is reported ante p. 285.

      Messrs. Weller & Lichtenstein, for the appellants.

      Mr. J. W. Rufus Besson, for the respondents.
   Per Curiam.

'The decree of the court of chancery will be affirmed, for the reasons given by Vice-Chancellor Stevenson.

Some comment is made in the brief (there was no oral argument) as to certain features with respect to which it is claimed the court below misapprehended some of the facts. We find it unnecessary to consider this claim specifically, for, assuming it to be well founded, there is nothing in the case to impair in any way the correctness of the result reached.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Vredenburgh, White, Terhune, Heppenheimer, Williams —14.

For reversal — None.


text:
    Adam R. Sloan, receiver, &c., petitioner-appellant, v. Henry Paul et al., respondents and appellees.
    [Submitted March 22d, 1915.
    Decided June 14th, 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported ante p. 321, sub noin. The Railway Review et al. v. Groff Drill and Machine Tool Co.

      Messrs. Ott & Carr, for the appellant.

      Mr. F. Morse Archer and Mr. Harrison H. Voorhees, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion tiled in the court below by Vice-Chancellor Learning.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Vredenburgh, White, Terhune, Heppenheimer, Williams —14.

For reversal — None.


text:
    Clifford W. Smith, complainant-respondent, v. Bedell Brothers, a corporation, defendant-appellant.
    [Argued March 10th, 1915.
    Decided June 14th, 1915.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported ante p. 268.

      Mr. Jacob L. Newman, for the respondent.

      Messrs. Coult & Smith, for the appellant.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Stevens.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Vredenburgh, White, Terhune, Heppenheimer, Williams —14.

For reversal — None.