author: Fielder. Y. C.

text:
    George B. Magie v. Archibald S. Kirkpatrick.
    [Decided January 12th, 1921.]
    1. Where a testatrix directed that the residue of her estate, real and personal, should be divided into five parts, and disposed of fractional shares of the parts, and gave her executor an unlimited power of sale, such power is not restricted in the sale of land to a case where the personal estate is insufficient to pay debts.
    2. Such power of sale is continued to new executors appointed by the testatrix after the death of the executor first appointed by her, and is to the new executors in their representative, and not in their individual capacity.
    3. Where such power of sale is given to two executors, and 'one of them dies, the power may be exercised by the survivor.
    On bill for specific performance.

      Messrs. Lit/ni, Tamblyn & Golyer, for the complainant.

      Messrs. Yreeland £ Wilson, for the defendant.
   Fielder. Y. C.

This is a suit for the specific performance of a written agreement entered iluto between complainant and defendant, whereby complainant agreed to convey and defendant agreed to purchase certain lands in Morris comity, in this state. The defendant’s refusal to carry out the agreement is based upon, alleged unmarketable title in complainant, and the question presented calls for the construction of certain clauses of the will and codicil of Elizabeth Cebra Baker, admitted to probate in Morris county.

By the first seven. clauses of her will the testatrix provided for the payment of her debts and funeral expenses and bequeathed several legacies.

The will then continues:

“Eighth: The residue of my estate, I do order and direct to be divided into five equal parts; three parts or three-firths thereof, I give and bequeath unto my said sister, Mary Frances Davis, two parts or two-fifths thereof, I give and bequeath unto the relatives hereinafter named of my said deceased husband, Jeremiah Baker, in manner following, that is to say, the one-fifth of said two-fifths of the residue of my estate I give to the children of James Augustus Baker, dec’d. in equal parts. Another one-fifth of said two-fifths of the residue of my estate, I give to the children of Esther Hathaway, dec’d. in equal parts. Another one-fifth of said two-fifths of the residue of my estate, I give to the child of Jane Crane, dec’d. Another one-fifth of said two-fifths of the residue of my estate I give to the children of William Baker, dec’d. in equal parts. The remaining one-fifth thereof, I give to the children of Ferdinand Baker in equal parts.
“Lastly: I hereby constitute my said brother, James A. Webb, executor of this my last will and testament and I do authorize and empower him to sell and convey any real estate of which I may die seized and such sales may be made publicly or privately and' on such terms and conditions as he may deem expedient and I do exempt him from providing security which may be required by the laws of this or any other state for the discharge of the duties hereby imposed upon him.”

By the codicil the testatrix bequeathed certain personal property to her executors in trust and the codicil continues as follows:

‘Since the execution oí my said will my brother, James A. Webb, whom I named executor thereof, has died. I now constitute Charles G. Davis, my nephew, and my friend, Edward P. Holden, Executors of my said will and of this codicil and I do bestow upon them all the power and authority my Said will conferred upon my said brother and I do exempt the said Charles G. Davis and Edward P. Holden as executors, from giving- security which may be required by the laws of this or any other state for the discharge of the duties hereby imposed upon them, or imposed upon them by said will.”

By an agreed state of facts it appears tliat letters testamentary were granted to the two executors named in the codicil; that Charles G. Davis thereafter died; that Edward P. Iioklen, as surviving executor, conveyed the premises in question, which were part of the real estate of which the testatrix died seized, to complainant, and that the personal estate of decedent was more than sufficient to pay her debts, administration expenses and all legacies.

The question to determine is whether the deed of conveyance made by Edward P. Holclen, as surviving executor, purporting to convey to complainant the land described in the agreement which it is now sought shall be specifically performed, vested a marketable title in complainant, and the solution of the question depends upon the extent of the power of sale conferred on such surviving executor by the will and codicil of deceased. The defendant contends, first, that the power of sale was a naked power, given to the persons named in the codicil, for the purpose of raising money by the sale of real estate, if necessary, with which to pay debts and legacies and that because the personal estate was amply sufficient to meet such charges, the power of sale could not be exercised, and second, that if the power of sale should not be so limited, it.was given to the persons named as individuals, and not in their official capacity as executors, and could only be exercised by them jointly and not by the survivor of them.

The codicil in which Davis and Holden were named as executors conferred upon them all the power and authority which the will gave to Webb, the person named in the null as executor, and upon referring to tire will, we find that Webb was thereby authorized and empowered to sell and convey any real estate of which the testatrix might die seized, either publicly or privately, and on such terms and conditions as he might deem expedient. No limit was placed on such power to sell. The extent of his authority and power is expressed in plain and simple language, and it is as broad and comprehensive as the testatrix could make it. There is no intention expressed that it should be exercised only in the event that the personal estate should prove insufficient to pay debts and legacies, and since the language is not ambiguous, the safest course is to abide by the plain meaning of the words the testatrix used to express her wishes, rather than attempt to give her expressions a limited meaning which might defeat some purpose not definitely set out in her will. Immediately preceding the clause appointing her executor and authorizing and empowering a sale of her real estate is the clause disposing of her residuary estate. By this residuary clause the testatrix ordered and directed her estate to be divided into five equal parts, some of which parts she proceeded to subdivide, with the result that she gave and bequeathed fractional parts of her estate to many persons, some of whom may be minors. I can find no repugnancy between these two clauses, and if it were permissible to speculate as to what object’ the testatrix could have had in mind when giving an unlimited power of sale over her real estate, I would say that it was for the purpose of reducing her real estate to money to facilitate a division of her whole estate into parts, instead of vesting title to such real estate, as tenants in common, in many persons of perhaps various opinions and interests, holding different ideas of value, who could not agree to sell or divide and of whom some might be under legal disability and almost inevitably compelling a partition sale. I would also observe that the testatrix 'blended her personal and real estate in the residue and ordered and directed the whole “to be divided,” which would indicate that the executor, who had the personal estate in his hands, was the person to allocate the equal parts, and I would further observe that' nowhere in the clause disposing of her residuary does the testatrix specifically refer to her real estate, or in connection with the disposal of the equal parts, use the word “devise.” But, as 1 have said, I do not feel at liberty to indulge in conjectures as to what the testatrix ha.cl in mind, in the face of the explicit authority given her executor, and I therefore find that the executor named in the will was given an unlimited power of sale, and that by the terms of the codicil, the same authority and power was bestowed. on the persons whom the testatrix selected to act in place of Webb, and my view,.I think, is supported by the following authorities: Brearley v. Brearley, 9 N. J. Eq. 21; Lippincott v. Lippincott, 19 N. J. Eq. 121; Bacot v. Wetmore, 17 N. J. Eq. 250; Wetmore v. Midmer, 21 N. J. Eq. 242; Haggerty v. Lanterman, 30 N. J. Eq. 37; Hatt v. Rich, 59 N. J. Eq. 492.

The remaining question to be disposed of is whether the unlimited power and authority to sell, which I find was conferred by the terms of the will and codicil upon Charles G-. Davis and Edward P. Holden, was given them as individuals, or, in their official capacity, as executors. After naming them as executors, the testatrix said: “I do bestow upon them all the power and authority my said will conferred upon my brother,” and she then' exempted them, as executors, from giving security for the discharge of the duties imposed upon them by the will and codicil. This was all done in one sentence, and what the defendant’s contention amounts to is, that although at the beginning and at the end of the sentence sire spoke of these men as executors, she, nevertheless,, by the same sentence, intended to give them power to sell as individuals. I could not so construe the sentence in 'question without a clear expression of such intention. The testatrix’s real estate was not devised to’ Davis and Holden, in trust, and they held no title to it, but they were given authority to convey, which means to execute and deliver written evidences of transfer of title, and, therefore, and because the same sentence which named them as executors gave them the power to sell and relieved them from giving bond as executors, I must assume that the same trend of thought with which the testatrix commenced and ended her sentence continued throughout the sentence, and that the power to sell and to convey title was given, them in an official capacity, rather than in an individual capacity in which she at no time clearly designated them. If, then, a power of sale under the will and codicil was in the two executors, such power passed to and could 'be legally exercised by the survivor upon tire death of one of them. Comp. Stat. p. 2261 § 10; Weimar v. Fath, 43 N. J. Law 1.

My conclusion is, that the conveyance by Edward P. Holden, as surviving executor of Elizabeth Cebra Baker, to complainant, was efficacious to pass a, good and marketable title and that defendant should be decreed to perform the agreement which is the subject-matter of this suit.


source: Caselaw Access Project

author: Fielder, Y. C.

license: Public Domain

text:
    William N. Allen v. The Francisco Sugar Company et al.
    [Decided April 5th, 1920.]
    1. No majority, however large, has a right to divert any of the joint capital to any purpose not consistent with and growing out of the original fundamental joint intention as is stated in the certificate of incorporation.
    2. A corporation organized prior to the act of 1899 (P. L. 1899 p. 334) is not authorized to lease its property to another corporation without the consent of all of its stockholders.
    8. The act of 1S99 does not empower a corporation to lease its property to a corporation of another state, but merely authorizes leases between corporations of this state.
    4. Equity will not countenance a proceeding whereby a corporation leases its property to a foreign corporation for the purpose of avoiding payment of federal income taxes, such being against public policy.
    On bill for injunction.

      Messrs. McCarter & English, for the complainant.

      Messrs. Li/ndabury, D'epue Faullcs, for the defendants.
   Fielder, Y. C.

The defendant the Francisco Sugar Company is a corporation organized under the General Corporation act of New Jersey, by certificate of incorporation dated February 20th, 1899, and filed in the office of the secretary of state three days later. Complainant has been the owner of one thousand filve hundred shares of the company's stock, of the par value of $100, since 1915. Practically all of the company's property consists of valuable sugar plantations in the island of Cuba, and its business has been very profitable, a dividend of twenty per cent, having been declared in 1919 on its capital stock, which is a million and a quarter dollars, i Its directors have adopted a resolution, subject to the approval of the stockholders, proposing to form a Cuban corporation, in which the defendant corporation will own all the capital stock, and to then lease to the Cuban corporation the defendant company's land and personal property for the term of ten years and eight months, from November 1st, 1919, at a fixed annual rental which, it is estimated, will lie sufficient,to pay interest on the New Jersey company’s outstanding bonds, meet its sinking fund requirements, pay its taxes and expenses and substantial dividends on its capital stock. When complainant received notice of the meeting of stockholders, to which the resolution of the directors was to be submitted for approval, he filed his bill of complaint alleging that, the directors and stockholders of the defendant company are without power to make such lease and praying that the company and its stockholders be enjoined from acting in the premises. An order to show cause, with a temporary restraint, was issued and the matter, now conies on for hearing on bill, affidavit and answering affidavits. The bill does not allege that the purpose of the proposed plan is to avoid the payment of large federal income taxes to the United States-, but the answering affidavits disclose such purpose, and on the hearing the question whether the plan was illegal as against public policy, was fully argued.

Defendants rely on P. L. 1899 p. 334, as the statutory authority for leasing its property. I quote so much of the act as is applicable:

"‘Any corporation of this state * * * may hereafter, with the assent of two-thirds in interest of its stockholders, either in person or by proxy, lease its property and franchises to any corporation, and every corporation of this state is hereby authorized to take the leas^ or any assignment thereof, for such terms and upon such conditions as may be agreed upon * * *."

Before tlie passage of this act, airy scheme by which it was attempted to turn over the business and assets of a New Jersey corporation to any other corporation, without the consent of all the stockholders, was illegal. Our. courts have said that each stockholder owns a share in the company’s property and assets and is entitled to have a proportionate share in its profits. They have invested their capital in it, and in it alone, and they are entitled to every dollar that it earns. This is the agreement of the stockholders among themselves: They each contract with the other that their money shall be employed for the purposes specified in the certificate of incorporation, and for no other purpose. What the majority determine within the scope of their mutual contract, they each agree to abide by, but there their mutual contract ends, and no majority, however large, has a right to divert one cent of the joint capital to any purpose not consistent with, and growing out of, this original fundamental joint intention. Kean v. Johnson, 9 N. J. Eq. 401; Black v. Delaware and Raritan Canal Co., 24 N. J. Eq. 455; Mills v. Central Railroad Co., 41 N. J. Eq. 1; Colgate v. United States Leather Co., 75 N. J. Eq. 229; Riker v. United Drug Co., 79 N. J. Eq. 580.

The question is then presented whether, under P. L. 1899 p. 344, this lease is authorized. I am of the opinion that because this act was passed about a month after this company was organized, the act does not apply, and further, as I construe the act, it merely authorizes leases between corporations of this state.

The act is not supplemental to the General Corporation act, but an independent act, and its effect is to permit a change to be made in the purposes and objects for which corporations were theretofore formed. The power to give a lease to another corporation was not a lawful act which the corporation might undertake at the time of its incorporation, and therefore such power could not have been in the minds of the incorporators or included within the objects set forth in their certificate. This statute is merely the consent of the state that the stockholders may do the thing therein provided for, but it cannot alter1 the contract as between tire stockholders themselves, or as between the stockholders and the company, unless all agree to accept the act as a modification or amendment to their charter. Einstein v. Raritan Woolen Mills, 74 N. J. Eq. 624; Colgate v. United States Leather Co., supra.

Did the legislature intend by this act to permit a New Jersey corporation to lease all its property to a corporation organized under the laws of a foreign country? Can two-thirds of tire stockholders of this company place all the assets of this company under the exclusive control of. an unknown board of directors of a Cuban corporation, even, for a limited period and thereby deprive a citizen of the United States, who owns an interest in those assets, of the right to express his opinion by his vote, of the manner in which his property shall be safeguarded, managed and made productive and deprive- him also of the right to the protection of our courts, when, neither the res nor the person, of the lessee are within our jurisdiction? I am unwilling to so hold where such legislative intent is not clearly expressed.

Effect must be given to the words “and every corporation of this state is hereby authorized to take the lease or any assignment thereof.” It was argued on behalf of the defendants that they were used solely for the purpose of conferring power on a New Jersey corporation to accept a lease from another corporation of our state, but I do not think so. The act in question authorizes “every corporation of this state to take the lease,” not “'a lease,” or “any lease,” and the intent seems to me to be that the lease, which in the first part of the sentence is authorized to be made, shall be taken only by a corporation of this state. Our legislature could not authorize a corporation of another state to- take the lease, because that power can be conferred only by the other state. The words “for such terms and upon such conditions, as may be agreed upon,” refer to the details of the lease and are intended to show that the provisions of the lease may be settled between the parties. Because these words do not follow the authority to lease to “any corporation,” but do follow the words “every corporation of this state,” it would seem absurd to assume that the legislature intended to say that in a lease to a corporation of this state, the terms and conditions could be agreed upon, while saying nothing as to the terms and conditions of a lease to a corporation of another state or foreign country and this strengthens my belief that the legislature intended to limit the authority to lease to corporations of this state. Instances where the words “any corporation” were said not to include every corporation, foreign and domestic, are found in Black v. Delaware and Raritan Canal Co., supra; Stewart v. Lehigh Valley Railroad Co., 38 N. J. Law 505, 514; Warren v. Pim, 66 N. J. Eq. 353, 359; Riker v. United Drug Co., supra.

The avowed purpose to be accomplished by the proposed lease is to save the stockholders of the New Jersey corporation a million dollars of federal income taxes, which, it is estimated, the company would be required to pay the United States government. The statutory rights through which the defendant proposes to accomplish this purpose are, however, subject to the principles of equity, and it is the power and duty of this court to look through forms and disguises and base its decree upon the fundamental rights of all parties interested, and if the public welfare is concerned, to protect the rights of the public. The Federal Income Tax law, with its supplements and amendments, was enacted for the purpose of raising money to meet the extraordinary expenses with which our government was confronted as the result of the world war, and, subsequently, to successfully prosecute this country’s part in that war and to defray war obligations which the country assumed, and must pay for years to come. To permit the stockholders of this company to go through the form of leasing their property, while retaining its substance, and not only receive profits therefrom in a substantial amount, but also add to those profits a large sum of money which the company is now required by law to pay as its pro rata share, with the rest of the public, for governmental, war and other purposes, is a proceeding which equity will not sanction, because it is against public policy. Brooks v. Cooper, 50 N. J. Eq. 761; Driver v. Smith, 89 N. J. Eq. 339.


author: Griffin, Vice-Ordinary.

text:
    Gail H. Helmer, as executor of the last will and testament of George J. Helmer, deceased, petitioner, v. Farnham Yardley and Henry Montague, as executors under the last will and testament of Alfred B. Jenkins, deceased, respondents.
    [Submitted September 1st, 1920.
    Decided January 28th, 1921.]
    1. Where a testator gave his friend, a well-known osteopathic doctor, $25,000 if he should succeed in establishing “his” clinic for the advice and treatment of patients under the School of Osteopathy, the condition precedent to the vesting of the legacy was not satisfied by the establishment of the New York Osteopathic Clinic by the physician, with a number of other doctors, who procured the incorporation of a company to conduct the clinic in which, by common consent, no doctor would be in control of its business.
    2. The orphans court possesses jurisdiction over suits for the recovery of legacies and distributive shares, and therefore hits authority to construe a will in a suit against executors to compel payment of a legacy even though the construction of the will is the primary question to be determined in order to make a decree.
    On appeal from a decree of the orphans court of the county of Essex, made by Judge Martin, who filed the following opinion:
    “Alfred B. Jenkins, late of West Orange, died the 29th of December, 1916, leaving a last will and testament, which was admitted to probate the 10th of January, 1917. The will was executed on the 11th of June, 1915. The ninth paragraph provides as follows:
    “ ‘Ninth.' If I have not already provided for the same during my lifetime, and if my friend, Doctor George J. Helmer, now of Nyack, New York, shall succeed in establishing his clinic for advice and treatment of patients under the School of Osteopathy, I give and bequeath to Mm for Ms assistance in establishing such clinic the sum of twenty-five thousand dollars. If, however, I have made my contribution to Mm, or if by the time of the taking effect of this, my will, he has failed to establish the clinic, I direct that this legacy shall lapse, fall into and become a part of my residuary estate.’
    “Dr. Helmer, a resident of Nyack, New York, survived the testator and died the 15th of March, 1917, leaving a last will and testament, which was admitted to probate by the surrogate’s court, county of Rockland, New York, and letters testamentary were issued to petitioner, who qualified and is now acting as executrix.
    “The pleadings admit that testator did not make his contribution to the clinic of Dr. Helmer nor provide during his lifetime. for establishing any clinic for the treatment of patients under the School of Osteopathy.
    “The issue is whether Dr. Helmer performed the condition precedent prior to the time of the death of testator, December 29th, 1916.

      “The parties agreed at the hearing that this provision, was not intended as compensation or reward personally to Dr. Helmer for his services rendered. This agreement seems to be proper. Clearly, the intention of testator was to give $25,000 to aid the free advice and treatment of patients under the School of Osteopathy. He placed the fund to be paid out under the direction of Dr. Helmer for the benefit of his clinic.
    “The facts are not disputed. Dr. Helmer wa-s one of the oldest graduates of the recognized School of Osteopathy and enjoyed a very large and lucrative practice in New York City, and was the leading osteopath in the eastern section of the country. He was the professional adviser of and administered osteopathic treatments to testator and members of his family during the five years prior to testator’s death. The testator was a close personal friend of Dr. Helmer, and no doubt testator greatly admired Dr. Helmer personally and professionally, and believed in. the school of treatment of human ailments espoused by Dr. Helmer.
    “One of the witnesses stated that many years ago, probably about 1907 or 1908, Dr. Helmer spoke of the desirability of personally establishing a clinic for the osteopathic treatment of persons unable to pay, but the idea was abandoned by Dr. Helmer long before he ever knew the testator.
    “The followers and adherents of the new School of Osteopathy as a scientific method of treatment of disease generally believed in the plan of benefiting the public by making better known the principles of their school, and to that end to establish a place where patients might be given advice and treatment practically free of cost. The purpose of the osteopathic physicians was supported by the belief that it would greatly enhance the reputation and standing of the School of Osteopathy.
    “The Osteopathic Society of New York City, of which Dr. Helmer was a member from the time of its organization until his death, was the principal society of practitioners of the school in and around New York City. Dr. Helmer appears to have advocated and in fact did frequently speak to members of the society of his conviction, that a clinic should be established in New York City for the treatment of the poor.

      “Ill the year 1912 a resolution of the society was passed declaring that the time had arrived when efficient measures should be taken to establish a clinic. The committee was appointed and met from time to time for a period of two years and discussed various measures with a view of establishing a clinic. The natural result was the securing of the active support of the leading osteopathic physician and his friends. It was arranged among the interested osteopaths that they personally should not become members of the board of directors of the New York Osteopathic Clinic. The policy was adopted to- promote harmony.
    “The first effective step towards organizing a clinic was the selection of a board of prominent citizens.
    “In 1914 Dr. Helmer obtained the interest and active cooperation of Mr. William Strother Jones, of the New York stock exchange, and the Rev. Charles J. Eaton, pastor of Madison Avenue Baptist Church. These two friends of Dr. Helmer were the first laymen selected to support the project, and their active participation gave great encouragement to those interested in. the enterprise. Other osteopaths also invited some of their patients and friends to join the hoard. Mr. Jones was selected as the president,of the board, and has since taken a very effective part in all the affairs and progress of the clinic.
    “On Mar7" 30th Dr. Helmer invited a large number of osteopathic physicians in and around New York City to visit him at his home at Nvack, New York, and there was discussion of the proposed activities of the clinic.
    “On the 13th day of March, 1914, a. charitable or membership corporation was organized under the laws of New York, known as the ‘New York Osteopathic Clinic;’ It was stated that the object was to establish a dispensary to conform to the law. That savored too much of medicine but the official title and actual work show it to he the-kind of clinic mentioned by testator. Dr. Helmer and a number of osteopaths made contributions for the purpose of giving it a standing and character sufficiently satisfactory to warrant the legally constituted authorities' of the State of New York to permit it to begin its proposed operations, and on the 15th of April, 1914, the state board of charities granted a license to' the organization. On the 1st of May, 1914, a lease for the building at 33 East Thirty-second street was entered into; the clinic for patients was opened the 13th of July, 1914, and it has since continuously given advice and treatment to patients under the School of Osteopathy free of charge except where the patient could pay some money but much less than the usual charge of osteopaths.
    “Dr. Helmer was a member of the clinical staff and gave his support, co-operation and time and attention to the activities of the institution and personally gave advice and treatment to patients at the clinic until his decline in health prevented him. After the summer of 1916 he sent a substitute to perform his personal work with the patients.
    “The money raised for the initial work of the clinic at the time of tire incorporation was rapidly disbursed and exhausted during the first year of the existence of the clinic. The finance committee, of which Dr. ITelmer was a member, relied to a great extent upon Dr. Helmer to relieve the situation, because his practice was recognized to be unusually large amongst the wealthier class of people, and therefore it was. believed he could raise more money than the rest. During April, May-and June, 1915, about the time of the preparation and execution of the will of Alfred B. Jenkins-, Dr. Helmer was particularly active in, enlisting and obtaining financial assistance for the institution. At a meeting of the Osteopathic Society of New York City in May, 1915, he secured pledges of financial support and stimulated competition and the interest of his fellow-osteopathic physicians by marking up the pledges on a blackboard. He per- • sonally pledged the sum of $1,000, which was an example for the others. -All of these efforts and activities on Dr. Hehner’s part were for and on behalf of the newly-formed and struggling clinic. As a result the temporary difficulties in which the New York Osteopathic Clinic was- enmeshed were very greatly relieved and the institution has continued to exist and carry on its work up to the present time.
    “This New York Osteopathic Clinic was the only one in which Dr. Helmer was, or for many years had been, interested. There was no other clinic in or around New York City contemplated, designed, in progress of formation or in existence. There is no evidence of the existence of any other clinic that could have been known to testator.
    “Petitioner contends that she has shown by the uncontradicted evidence, and the fair inferences to be drawn therefrom, that the condition precedent to the validity of the legacy had been fully performed by the incorporation—actual establishment and continuation of the New York Osteopathic Clinic.
    “The contention of respondent is, that the part performed by Dr. Helmer in the formation of the New York Osteopathic Clinic was merely as one of a number of other osteopathic physicians and their friends and that the enterprise was the product of the joint efforts of the members of the Osteopathic Society of New York City, and not the product of the personal efforts of Dr. Helmer. Hence, it is argued that Dr. Helmer, himself, may not be said to have succeeded and that the clinic should not be designated as ‘his5 clinic.
    “Petitioner must show fl) that Dr. Helmer succeeded: (2) in ‘establishing5 a clinic; (3) that it was ‘his5 clinic; (4) that the clinic was for the advice and treatment of patients under the School of Osteopathy, and (5) that the establishment was prior to the death of testator.
    “There is no controversy that the clinic established was under the School of Osteopathy nor that it was before his death. This eliminated (4) and (5) from the discussion.
    “It will be helpful to endeavor to ascertain what the testator means by the word ‘establishing.5 The word ‘establish,5 in the standard dictionaries, is defined in part as follows:
    ‘“1. To make stable, firm.
    “‘2. To put or fix on a. firm basis: settle stably or fixedly; put in an efficient state or condition.

    “‘3. To confirm or strengthen; make more stable or determinate.
    “ ‘4. To confirm by affirmation or approval; sanction; uphold.
    “‘5. To make good; substantiate; show to be valid or well grounded; cause to he recognized as valid or legal; cause to be accepted as true or as worthy of credence.’

      “In its primary sense the meaning is ‘to settle or fix firmly/ 2 Words and Phrases {2d series) 823. Other definitions are ‘to put * * * in an efficient state or condition/
    “Hence, one who completes the original enterprise. or plan of another or who. places it in an efficient state or condition may be said to establish it.
    “It is not necessary to discover the original idea or plan, actively and exclusively found and erect an institution based on the plan and place it in a position fully to perform all its functions in order to establish it.
    “The absolute and positive fulfillment of the condition to the highest degree, character or extent that may be imposed is seriously modified by the testator because, after stating that if Dr. Helmer succeeds in establishing his clinic, then he gives $25,000 to him for his assistance in establishing such clinic. If it must be fully completed, then how could it be possible to use money to assist in completing it? This demonstrates the different meanings attached to the word ‘establishing’ adopted by testator, and indicates that Dr. Helmer need not be the sole designer, founder, constructor, supporter and director of the clinic.
    “Dr. Helmer in fact was the leader in the early days of the struggle of the adherents of osteopathy for-recognition of their school of treatment of disease. He talked of his own clinic, he readily and heartily joined others in the work, and in many respects led the efforts in organizing the New York Osteopathic Clinic; he made it stable and firm by his efforts before and during the time of its incorporation and efforts to secure a license. He helped to strengthen it, to make it good and caused it to be worthy of credence.
    “The fruit of the efforts of Dr. Helmer is the clinic fully performing the purposes of those interested in it and actually advising and treating patients. Without the work of Dr. Helmer the clinic would not have been functioning at all or to the extent it was at testator’s death.
    “The result need not necessarily be the sole produce of personal effort. One who is effective usually organizes the effort of others. Most of our great captains of industry have established their business by this method.

      “The testator by the ninth provision of the will meant something effectual. As construed by respondents he did not refer to the New York Osteopathic Clinic. If not to that, then to what did he refer? The rational meaning of the will is that Mi-. Jenkins knew that Dr. Helmer was devoting his time, thought and effort to some worthy cause that enlisted the sympathy of Mr. Jenkins, a business man of great experience and ability, and caused him to endorse it and to further the effort of his friend Dr. Helmer and gave it a large sum of money. If Dr. Helmer had no clinic in mind, or was not interested in any clinic, then Mr.'Jenkins was dealing in meaningless words. Such construction is the inevitable result of the logic of the contention of respondents, because they fail to prove the existence or contemplation, of any other clinic.
    “If Dr. Helmer, alone, in a small office, advised and treated patients free of charge by the method of the School of Osteopathy prior to the death of testator, the respondents would be compelled to admit that the condition precedent had been performed. No such single-man affair would accomplish any such general good as is fairly reasonable to believe the New York Osteopathic Clinic has done or is doing. Mr. Jenkins was, undoubtedly, aware of that and intended to place his money in the most effective means of doing this great good for a large number of patients under the supervision and direction of his friend.
    “The New York Osteopathic Clinic was known, to testator as the clinic of Dr. Helmer, and testator naturally designated it as ‘his’ clinic.
    “Respondents also contend that between the execution of the will and death of Mr. Jenkins, Dr. Helmer must succeed in establishing his clinic. No such requirement is inserted in the will, nor is it necessarily contemplated by the surrounding circumstances. In fact, Dr. Helmer could have performed the condition precedent by succeeding in establishing his clinic at any time before" the death. The ninth paragraph provides ‘if by the' time of taking of this my will he has failed to establish the clinic * * * the legacy shall lapse * * */ The testator is conclusively presumed to know the law, and therefore he knew the will would take effect at his death.

      “In seeking the intention of the testator, as shown by his will, and in giving every word of the ninth provision, its fullest significance, and considering the surrounding circumstances and the purpose and effort of Dr. Helmer and the knowledge of them which the testator no doubt possessed, this clinic must have been known to the testator as the clinic which was the subject of Dr. Helmer’s efforts; hence, he ‘succeeded’ in ‘establishing’ ‘his clinic.’ Dr. Helmer was the leader of the profession. There was general recognition made of the fact that his leadership, was necessary to the success of the enterprise.
    “The executors, the respondents herein, immediately after the death of Mr. Jenkins, wrote to Dr. Helmer as follows:
    “ ‘We beg to inform you that under the will of Alfred B. Jenkins, of 'West Orange, New Jersey, a bequest was made to you as stated in the enclosed copy of Mr. Jenkins’ will.’
    “In response Mr. Helmer caused to he written to the executors a letter in part as follows:
    “ ‘Being unable at this time to visit you in regard to the matter of the legacy referred to in article IX, of the last will and testament of the late Alfred B. Jenkins, I beg to advise that the Osteopathic Clinic in which I am interested, and which I was instrumental in organizing, is officially known as the New York Osteopathic Clinic, Inc., now located at 35 East Thirty-second street, of which William Strother Jones is president. He will be able to give you all other proof that you may want regarding the organization and conduct of the clinic.’
    “This letter was admitted merely as evidence of the receipt of the previous letter from the executors but not as competent evidence in any way to establish the truth of the facts stated in the letter itself. It may be, that as a statement in the regular course of business by a person, since deceased, a disinterested third party at the time, making a statement disclaiming any personal interest. whatsoever, that the contenfs of tire letter are evidence of those facts. The court, however, will not now change the ruling at the hearing.
    “The contention of respondents is that if Mrs. Helmer personally receives the money ultimately under the will of Dr. Helmer, in which she is named the sole legatee, that she may use it as her own. The will of Mr. Jenkins must be construed in relation to the facts existing at the time of his death. Then Dt. Helmer was alive. The will of Mr. Jenkins does not provide that if Dr. Helmer dies shortly after the death of Mr. Jenkins that the fund shall vest in some ether person. It-seems to be perfectly clear, however, that the New York Osteopathic Clinic will succeed in an action against petitioner seeking to establish a charitable use directly for its benefit, particularly in view of the straightforward admission contained in the letter written by Dr. Helmer on the oth day of March, 1917, and signed on his behalf by the petitioner personally.
    “Under all the circumstances it seems reasonable to conclude that the condition precedent was fulfilled. The intention of the testator was to give the fund to Dr. Helmer to be applied by him for the purpose of further establishing his clinic for the benefit of patients in the event that such progress had been made as was sufficient to show that a foundation had been laid and the continuation of the clinic was reasonably assured at the time of the death of the testator.
    “Petitioner is therefore entitled to judgment, with costs.”

      Messrs. Oongleton, Stallman & Hoover, for the petitioner.

      Messrs. VrecPenburgh, Wall & Oarey, for the respondents.
   Griffin, Vice-Ordinary.

The executrix of Dr. Helmer filed her petition in the orphans court of the county of Essex under the one hundred and ninety-second section of the Orphans Court- act, which, after reciting the ninth paragraph of Mr. Jenkins’ will (which is set forth in the opinion of Judge Martin), and alleging performance of the condition precedent, pra-ye.d that his executors be- directed to pay the legacy to petitioner.

But one question was presented to the orphans court, viz.: Had Dr. Helmer,, when the will of Mr. Jenkins- took effect, performed the condition precedent to the vesting of the legacy? The court, finding that the establishing of the “New York Osteopathic Clinic” satisfied the condition, decreed that respondents pay to the petitioner the legacy.

From this decree the respondents appealed and raise the additional objection to tlie decree that the orphans court was without jurisdiction to entertain the suit.

Passing the question of jurisdiction for the present, and dealing with the case as presented in the orphans court, it appears that the sole question was, What did testator mean, when he used the words “his clinic ?”

If Dr. Helmer had established the New York Osteopathic Clinic, and was the owner thereof at the time of testator’s death, it is quite clear the legacy would be payable.

This, however, was not the fact. What he did was to join with other doctors in procuring the incorporation of a company to conduct a clinic, in which, by common consent, no doctor would be in control of its business management.

To this end, the doctors, who were the leading spirits in the project, each selected a certain number of men in other pursuits to become incorporators and directors. There is nothing in the case which indicates that any one doctor possessed greater rights than another—in fact, the evidence is to the contrary— and there is nothing in the evidence to indicate that the directors were without power to dispense with the services of Dr. Helmer as well as of the other attendant doctors.

The pertinent facts are as follows: In the year 1900 there was an Osteopathic Society in New York City (hereinafter referred to as “the Society”). About 1912, this Society appointed a committee, of which Dr. Fleck was chairman, to form a corporation, which was accomplished March 15th, 1914. Dr. Helmer did not initiate the movement, but, being leader in his profession, Dr. Fleck sought his aid, which he actively gave. It was considered by the promoters unwise to have doctors as incorporators or directors lest it might cause jealousy and strife, which would be detrimental to the enterprise; because, as Mr. Jones, the president, said :

“No doctor likes to have another doctor be the whole thing; they might say this was Fleck’s clinic, or this was Reilley’s clinic, if they were prominent particularly in it, and to avoid that the board of directors have appointed the rules committee

and Dr. Fleck frankly states “there was not a ‘Fleck’s Clinic/ or ‘Iieliner’s Clinic/ or ‘Jones’ Clinic;’ we tried to avoid that.”

Dr. Helmer and four others were appointed on the rules committee, which worked under the board of directors; and about eighty other doctors contributed their services. Dr. Fleck also states that after the incorporation he, as chairman of the committee of the society, made reports to it.

In order, to form this clinic it was necessary to obtain the permit of the state board of charities, and the doctors who were on this committee deemed it necessary to raise funds to satisfy the state board, and there was raised $4,800. Dr. Helmer, and the other four on the committee, each contributed $100 and promised to raise a thousand dollars apiece from their patients and friends. Dr. Helmer was one of the five. The approval of the state board of charities was endorsed on the certificate of incorporation. There were nine incorporators who became directors. No doctor was cither an incorporator or a director, thus carrying out the original plan of the promoters.

The clinic began to function about April, 1914; rented quarters and employed help. Its income from the treatment of patients (some of whom only could pay), at seventy-five cents a treatment, brought in so little that in about May, 1915 (about the time the testator’s will was made), it was in financial straits, and an effort was made to raise funds. It does not appear that the testator was either approached on the subject or that he contributed anything—in fact, it docs not appear that he even knew of its existence.

Therefore, in order to sustain the decree, the words “his clinic” must be construed not in the possessory, but in the sense that one speaks of “his city,” “his country,” “his church,” “his school,” and the like. The question, therefore, arises, In what sense did the testator use the words “his clinic ?”

Examining the entire will to ascertain his intent, and taking the situation and surroundings of the testator at the time the will was executed, it appears that in the eighth clause he gave to seven charitable institutions, by name, $15,000, two of the bequests being for $25,000 each, and five for $5,000 each, with the provision that the money should he added to the endowment fund of the several institutions,

“the principal thereof to be retained intact and to be known as ‘Alfred B. Jenkins Endowment’ or ‘Memorial,’ as the case may be, the income only to be used for the benefit of the institutions respectively.”

Then follows the names of the institutions -with the amounts bequeathed to each. In the tenth, or residuary clause, in the event of his daughter dying without leaving lawful issue her surviving, either before or after his decease, he bequeathes the residue as follows: He gives to four of the legatees mentioned in-the eighth clause additional legacies aggregating $60,000, and thereafter what remains he gives to twelve institutions of learning,

“the principal to be held as a part of the endowment fund known as the ‘Alfred B. Jenkins Endowment’ of said institutions respectively, the income only to be used by the institutions.”

These clauses indicate the bent of the testator’s mind, namely, that where he gave to corporate charity he provided that the principal of the fund should be held intact and the income only used for maintenance. No such provision was made in the ninth clause. The question, therefore, arises, if he intended that the legacy should go to such institution as Dr. Helmer might be connected with, why did he not malm the same provision for the use of the income only as he made in other cases? What motive could there be to give to this charity $25,000 outright, and give to the others only the income ?

In determining this question, regard must be had to the object of his bounty and the purpose sought to be accomplished.

Dr. Helmer was the leader in his profession. He was not only the family doctor of the testator, but they and their families were socially intimate. Dr. Helmer was a magnetic man, and died at the age of fifty years. Several years before this will was made, Dr. Helmer had under consideration the establishing of his own personal clinic, which idea he later abandoned. The case does not disclose whether the testator knew of the doctor’s ambition, nor of the existence of tire New York Osteopathic Clinic; but the fact does appear that the clinic was in dire need of funds at about the time the will was made, and that Dr. Helmer, with others, sought to raise funds for it;. and it does not appear that the testator was solicited, or made any contribution to it; yet it is quite likely that he would be a large contributor if he had been solicited, if it was his purpose to give $25,000 to a clinic answering the description of the New York Osteopathic Clinic.

It is quite probable that, in their professional or social relations, Dr. Helmer discussed with the testator his thought of establishing his own personal clinic; and, being desirous of aiding his friend and doctor, the testator made the bequest with the condition annexed, without any such provision that the income only should be used, as in cases where legacies were made payable to corporations. This latter theory is more or less speculative, but is merely referred to in view of the fact that the petitioner asks the court to ascribe a different meaning to the words “his clinic” than their grammatical import.

“It is a fundamental rule 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.” Hollinshead v. Wood, 84 N. J. Eq. 492.

In Marshall's Executors v. Hadley, 50 N. J. Eq. 547, 551, Vice-Chancellor Van Fleet said: “The whole will must be read and all its provisions must be carefully considered, and then such construction must be adopted as will give effect, if possible, to every word in it. If by the use of plain and unambiguous words he has made his meaning clear and certain, his will expounds itself, and all the court can do, or has power to do, is to give effect to his purpose. All doubts must be resolved in favor of the testator's having said exactly what he meant, and plain, clear words, understood in their ordinary sense, must always control, unless repugnant to other words used in another part of the will.” See also Burnet v. Burnet, 30 N. J. Eq. 595.

An analysis of the ninth clause indicates that the gift was personal to Dr. Helmer, not only to aid him in his enterprise, but to place the conduct of the clinic under his sole dominion and control. The terms of this gift differ not only from all the others in his will, hut its language is significant in this—that the testator had in mind the possibility of contributing to Dr. Helmer in his lifetime, or the failure of Dr. Iielmer to establish aclinic; therefore, he said:

“If, however, I have made my contribution to him, or if by the time of the taking effect of this my will he had failed to establish the clinic, I direct that this legacy shall lapse, fall into and become part of my residuary estate.”

It may reasonably be assumed that, with the great faith the testator had in the integrity of Dr. Helmer, if he had made his contribution to him in his lifetime he would hardly have annexed conditions to its use which might display a lack of confidence in the doctor. Nor was it his purpose, if he had not made his contribution, and the doctor had performed the condition precedent, that he would provide in his will safeguards as to its use. 'Therefore, in this particular bequest, the testator simply gave to Dr. Helmer the legacy upon one condition only—that he should establish his clinic—without annexing conditions of divestiture, after vesting; relying solely upon the honor of his friend to use it for the maintenance or otherwise of the clinic after it had been established.

Considering that a clinic, according to osteopathists, is a charity, and that Dr. Helmer would be compelled to give his time and money to its establishment, I am not prepared to say that, after the legacy vested, he could not use the legac3r for his reimbursement, discontinue the clinic (because there is no limitation as to its continuance), or, in the event of his death, his executrix could not discontinue it (because the personality of Dr. Helmer could no longer dominate it) and hold the legacy as assets of the doctor’s estate. -All this is unnecessary to decide; but it shows how unwise it is to- depart from the plain meaning of words when the field opened by so doing is uncertain and may lead to the court making the will of the testator.

My conclusion is that the establishment of the New York Osteopathic Clinic did not satisfy the condition precedent to the vesting of the legacy.

The second point raised by the appellant questions the jurisdiction of the orphans court to entertain the suit.

In Deeks v. Strutt, 5 T. R. 690, it was held that an action to recover a legacy could not be maintained in the courts of law.

In 1774 an act was passed giving jurisdiction to courts of law to entertain suits for legacies.

But that suits for legacies might be maintained in the courts of law, by statute, does not alter their essential character; they do not change their nature to suit the law of the court, but the court changes its law and accommodates itself to its peculiar character. When suits for legacies were first prosecuted in courts of chancery they were obliged to adopt the law of the spiritual forums, and so it has been with the courts of common law. King v. Executors of Berry, 3 N. J. Eq. 44 (53); citing Ridg. P. C. 243. And a provision to the like effect was inserted in the Orphans Court act.

In Hedges v. Norris, 32 N. J. Eq. 192, Chancellor Runyon, in an elaborate opinion, gives the history of the law in suits for legacies, citing Deeks v. Strutt, supra.

In 1855, after our constitution went into effect (P. L. 1855 p. 342), jurisdiction was given to the orphans court over suits for the recovery of legacies and distributive shares. This act, as amended, will be found in 3 Comp. Stat. p. 3883 § 192; and, as amended, contains the following: “* * * and the proceedings in such suits thereafter shall in all respects be governed by the rules and practice of the court of chancery so far as the same are applicable.” Therefore, it will be perceived that, both at law and in the orphans court, the suit for a legacy wfas regarded as equitable in its character.

Thus, at the outset, two constitutional questions are presented —first, whether the legislature had authority to give jurisdiction to the orphans court to entertain suits for legacies, and second, if, possessing such jurisdiction, it has authority to construe a will where the construction of the will is the primary question to be determined in order to make a decree.

In Davison v. Rake, 45 N. J. Eq. 767, it appeared that eight legatees instituted suit in the orphans court for the recovery of their legacies. From the decree of the orphans court an appeal was taken to the prerogative court. Er'oin the decree of the. vice-ordinary, whose opinion is reported in Davison v. Rake, 44 N. J. Eq. 506, an- appeal was taken to the court of errors and appeals. In neither the prerogative court nor the court of last resort was any question raised as to- the jurisdiction of the orphans court to entertain a suit for a legacy, and both courts dealt with the subject-matter of the appeal and pronounced their decisions. See also Wyckoff v. O’Niel, 71 N. J. Eq. 681.

In view of these decisions, I will assume that the orphans court has jurisdiction to entertain a suit for a legacy.

The reason for dealing with this point is for the purpose of considering cases which have arisen under the distribution, acts in cases of testacy and intestacy. The distinction between such suits and a suit for a legacy is apparent. The decree for distribution in the orphans court is a mere continuation of a proceeding commenced before the surrogate and concluded in the orphans court; whereas, a suit for a legacy or distributive share is an original suit, independent of such proceedings. Yet, if that court has jurisdiction over suits for legacies or distributive shares, the right to construe the will in such cases may be determined by analogy to the numerous cases which have arisen' under the statutes of distribution.

In Hill v. Bloom, 41 N. J. Eq. 276, 280, it was objected that the orphans court had no jurisdiction to make a decree of distribution, because, in order to do so, it was necessary to construe the will, and that the court had no such authority, Chancellor Runyon, sitting as ordinary, on an appeal from the Sussex orphans court, said (at p. 280): “The power1 to construe the will, so far as necessary to determine to whom the distribution or payment is to be made, is obviously a necessary incident of the power given by that section.” Orphans Court act, § 151, Rev. of 1877 p. 785; 3 Comp. Stat. p. 3877 § 173.

In Adams v. Adams, 46 N. J. Eq. 298 (302), where the distribution of property under a will was considered, counsel for the respondent contended that the orphans court had no jurisdiction to construe the will, and any grant of such power would be unconstitutional as taking from the court of chancery a part of its jurisdiction. Mr. Justice Magie, speaking for the court of errors and appeals, referring to Hill v. Bloom, supra, said: “It lias not been thought necessary to determine the point thus presented, which was not argued on the part of the appellants,” and decided the case on other grounds.

In Macy v. Mercantile Trust Co., 68 N. J. Eq. 235, Vice-Chancellor Emery said (at p. 243) : “The power of the orphans court to construe wills for the purpose of distribution was affirmed by Chancellor Runyon in Hill v. Bloom (1886), 41 N. J. Eq. 276, but no question as to the constitutionality of the statute appeared to have been raised, and subsequent decisions hold this question to be still an open one. Adams v. Adams, supra; Stevens v. Dewey, 55 N. J. Eq. 232.”

See also Pulley’s Case, 70 N. J. Eq. 659; Eberhardt v. Perolin, 48 N. J. Eq. 592; 49 N. J. Eq. 570; Swain v. Smith, 61 N. J. Eq. 590; In re McGaw's Case, 88 N. J. Eq. 288. And the last deliverance on the subject is by Chancellor Walker, sitting as ordinary in In re Mcrrisse’s Estate, 91 N. J. Eq. 477; 110 Atl. Rep. 118, in all of which cases the court did not pass on the constitutionality of the statute because it was, either unnecessary to the decision of the cause or the will did not need construction.

The foregoing cases clearly indicate the doubts entertained by the judges of the court of errors and appeals and the court of chancery on this question of jurisdiction. But, as the court of errors and appeals, in the case of Davison v. Rake, supra, dealt with a suit for a legacy in the orphans court and did not declare that the statute conferred no power on the orphans court to -entertain jurisdiction, and, as Chancellor Runyon, in Hill v. Bloom, supra, where the point was made that the orphans court was without authority to construe the will, decided against this contention, as above stated, I think the weight of authority at the present time is in favor of the jurisdiction.

A decree will be advised reversing the decree of the orphans court.


author: Foster, Vice-Ordinary.

text:
    In the matter of the probate of the will of Anna Alter, deceased.
    [Submitted December 29th, 1920.
    Decided January 3d, 1921.]
    The act concerning adoption of minors clothes the adopted child with all the rights and privileges which, by the act concerning wills, the statute of distribution and the statute of descents, have been conferred upon children born in wedlock, including section 20 of the Wills act relating to after-born children. t
    On petition, &c.

      Mr. Alfred A. Stein, proctor for the proponent.
   Foster, Vice-Ordinary.

Application is made by William Alter for the probate of a paper purporting to lie the last will and testament of his wife, Anna Alter, bearing date January 29th, 1916.

On March 10th, 1916, proceedings were had in the orphans court of Union county, whereby Mrs. Alter and her husband adopted a son whose name is Frederick Alter, and he survived his adopted mother, who died July 16th, 1920.

At the time of making her will, in which she bequeathed and devised her entire estate to her husband, testatrix had no issue living, and she made no provision therein for or mention of any issue she might have, nor for any child or children she might adopt.'

It is insisted by proponent that this situation does "not bring the will within the operation of section 20 .of the act concerning wills (Comp. Stat. p. 5865), which declares:

“That every last will and testament made when testator had no issue living, wherein any issue he might have is not provided for or mentioned.' if at the time of his death he leave a child, children or issue, or leave his wife enceinte of a child or children, which shall be born, such will shall be void, and such testator be deemed to die intestate ”

The argument in support of proponent’s contention is that while Frederick Alter, by his adoption after the making of the will, acquired the rights of inheritance to real estate, or to the distribution of personal estate of the adopting parent or parents, as if born to them in lawful wedlock, such rights, under the weight of authority, do not affect the power of the adopting parent to dispose of his property by will, even though the will was made prior to the adoption and without any provision therein for the child subsequently adopted.

Regardless of what the rule may be in other jurisdictions, the law in this state has been settled by the court of errors and appeals by the decision In re Book’s Will, 90 N. J. Eq. 549, where Chief-Justice Gummere, in delivering the opinion of the court, held that the effect of the provisions of the act concerning the adoption of minors above mentioned (Comp. Stat. p. 2808 § 16) “is to clothe the adopted child with all the rights of a natural child, so far as inheritance of real estate or the distribution of. personal estate is concerned. It makes such child the lawful child of the adopting parent in these respects. It changes the statutory rules regulating the devolution of property * * * by enlarging the class for whose benefit they were originally passed (that is, the children bom to the decedent, and their issue) by making the adopted child a lawful child of the decedent for the purpose of sharing in the distribution of his estate.”

And, as the act concerning wills, the statute of descents and the statute of distribution composed the legislative system regulating the transmission of the estates of decedents, testate or intestate, prior to the passage of the Adoption act, and which this act changed to some extent, to determine the purpose of that change and its extent, the opinion further stated that all of these statutes must be taken and construed together as one system and as explanatory of each other; and, applying this rule, it was thereupon held “that the intent of all these statutes was to vest in adopted children all the rights and privileges which by the act concerning wills, the statute of descents and the statute of distribution had been conferred upon children born in wedlock; that is to say, to place them in the same position as if they had been, natural-born children of the decedent, so far as these statutes are concerned—to substitute the lawful children of the decedent, no matter what the source of their origin, in the place of those bom of his body. To give this legislative purpose its full significance^ the meaning of the words ‘child,’ ‘children1’ and ‘issue,’ wherever appearing in the various statutes comprising the legislative system embodied therein, when used in relation to the testator or intestate, must be considered to have been enlarged so as to include adopted as well as naturalbom children within their scope.”

Applying this clear and controlling statement of the law to the present application requires the determination that the adopted son of the testatrix is entitled to the protection of his rights of inheritance in her real estate, and in the distribution of her personal estate under section 20 of the Wills act, as fully and completely as if he were the issue of her marriage, born after the making of her will, wherein he was not provided for or mentioned, with the result that the probate applied for must be denied.


author: Swayze, J.

text:
    In the matter of the probate of the will of Annie B. Paullin.
    [Decided February 28th, 1921.]
    1. Where a husband and wife were living together in harmony, and each was observant of his or ¡her marital duties, the domicile of the husband was presumptively the domicile of the wife.
    2. Where a wife before her marriage lived part of the time in Atlantic City, where she was in business, and part of the time in Philadelphia, and after the marriage the husband and wife followed the same practice, it was the husband’s legal right to select which residence should be the family domicile.
    3. Where a husband, who lived part of each year in two cities, called on the assessor in one of them and had his name placed in the assessor’s blotter for the coming assessment, such conduct showed a selection by the husband of such city as his domicile.
    4. Wlhere it is shown that a husband had selected such city as his domicile, the mere fact that his wife described herself as a resident of another city did not present the question of her right to a separate domicile, even assuming that the law would give her a right to do so.

      5. On dismissal of a proceeding to probate a will because the testatrix was not domiciled in New Jersey, the court, being without jurisdiction over the estate, had no authority to allow counsel fees, costs and expenses.
    On appeal from the prerogative court.

      Mr. Clarence L. Cole and Mr. William M. Clevenger, for the proponent-appellant.
    . Mr. Joseph J.- Summerill, Mr. John Boyd Avis (Mr. Joseph W. Kenworthy, of Philadelphia, on the brief), for the respondents.
   The opinion of the court was delivered by

Swayze, J.

The question is, Where was the testatrix domiciled at her death? Chadwick's Case, 80 N. J. Eq. 471. She had long been engaged in- business in Atlantic City and had resided there part of each year. As she prospered, she had acquired also a residence on North Broad street, Philadelphia, where she spent a large part of each winter. She was a widow, having been thrice married before her marriage to Mr. Paullin. He was a widower past seventy jrears of age, in business at Philadelphia and living and voting at Pitman, in this state. After the marriage, which took place at her home in Philadelphia, he abandoned his residence at Pitman and ceased to voté there. He and his wife lived together, apparently much as she had lived, part of the time in the rooms over her bake shop in Atlantic City; part of the time in the North Broad street house in Philadelphia; part of the-time was spent in pleasure trips together. On December 20th, 1918, they went to Atlantic City expecting to return to Philadelphia December 26th. They were delayed until January 6th, 1919., and from that date lived in the North Broad street house until Mrs. Paullin died there on January 29th, 1919. The will was admitted to probate by the Atlantic orphans court; its decree was reversed by the prerogative court, which refused probate to the will because the testatrix was not domiciled in New Jersey. The latter decree is before us for review.

If it were necessary or important we think a very strong argument could be made for the proposition that Mrs. Paullin’s domicile, from the time of her purchase of the North Broad street house, ten years or more before her death, was in Philadelphia. Upon her marriage, however, the domicile of her husband became her domicile. Tracy v. Tracy, 62 N. J. Eq. 807; In re Geiser’s Will, 82 N. J. Eq. 311. Other cases are collected in 19 C. J. 414.

All parties agree that Mr. and Mrs. Paullin lived together, and there is not the slightest suggestion that they did not live together harmoniously, each observant of his or her marital duties. The presumption is, that the domicile of the husband was the domicile of both. He resided both in his wife’s Atlantic City and Philadelphia residences, and it was his legal right to select which residence should be the family domicile. We find nothing to show a conscious determination to select one rather than the other until Mrs. Paullin’s illness in December, 1918. Probably the distinction between residence and domicile and the importance of the latter never before occurred to either. With his wife’s illness, in December, 1918, it seems to have become impressed' on Mr. Paullin. On December 27th he called on the assessor of the proper division in Philadelphia and inquired if he was assessed. The assessor told him he was not, but his name would be taken for future reference for the May-assessment; the assessor showed Mr. Paullin his blotter book and that he (the assessor) had written. Paullin’s name in right there in front of him (Paullin). Paullin returned about the middle of January and inquired if his name was on the assessor’s list and was reassured by the assessor that he still had his name for the coming assessment on the blotter (which seems to have been the only book the assessor then had). We think this conduct not only proves the selection of Philadelphia as his domicile, but proves that selection in as persuasive a way as possible, by choosing it as the place where he should be taxed. We are not concerned with his possible motive. He, naturally, as was his right, selected the jurisdiction where the laws of inheritance would favor him in case of his wife’s death. It is clear that his domicile thereby became fixed at Philadelphia and his wife’s domicile followed his. If she had previously selected Atlantic City as a domicile, it was subject to change by the act of the husband as long as they lived together as one family and had the same residence. “The unity of domicile exists during coverture, unless the wife acquires one elsewhere by the husband’s consent,” either actual or constructive. In re Geiser's Will, supra; Anderson v. Watt, 138 U. S. 694.

The case differs from cases where the wife justifiably leaves her husband and resides elsewhere and is permitted' to make her actual residence her legal domicile. That she may in a proper case acquire a domicile of her own apart from her husband is recognized not only in actions against him for divorce, but in actions against other parties and in matters of inheritance. Williamson v. Osenton, 232 U. S. 619; Shute v. Sargent, 36 Atl. Rep. 282, the converse of the present case. We find no case where the law assists in separating man and wife who are living together in harmony by giving them distinct domiciles. On the contrary, it gives an action for loss of the consortium and for alienation of affections and formerly at any rate for restitution of conjugal rights, and allows the wife to adopt a separate domicile only in case of necessity, as Chief-Justice Shaw held in an early and well-known case. Harteau v. Harteau, 14 Pick. 181. No necessitj1" for a double domicile existed in this case. In fact, Mrs. Paullin never requested that she be allowed to select a separate domicile; the mere fact that she described herself as a resident of Atlantic City is not conclusive on the question of domicile, of which she probably never thought. The case does not present the question of her right to a separate domicile by adequate proof even if we could suppose the law would permit separate domiciles in view of the marital rights and obligations which require that husband- and wife shall live' together as one family. Mrs. Paullin might have preferred that her step-children should succeed to her property; if so, she should have protected them bjr an antenuptial contract; but the courts have no right to deprive the husband of his legal rights by twisting the law to the purpose. The unity and peace of families is of too much consequence to the state to justify a course out of harmony with the well-settled principles of our Marriage law.

The orphans court allowed counsel fees; the decree was reversed by the prerogative court; probably, no question was raised as to the propriety of allowing counsel fees. The prerogative court allowed' counsel fees, costs and expenses to. both sides in both courts. As the probate courts of New Jersey axe without jurisdiction over the estate, we are unable on the record before us to sustain these allowances. With this exception, let the decree be affirmed.

For affirmance—The Chief-Justice, Swayze, TreNciiard, Parker, Minturn, Kalisch, Taylór—7.

For reversal—Bergen, .Black, Katzenbaci-i, White, HepPENHEIMER, WILLIAMS—6.


author: Bergen, J.

text:
    Ida H. Canda, complainant-respondent, v. Abeel Canda et al., defendants-appellants.
    [Submitted November 25th, 1920.
    Decided February 28th, 1921.]
    The testator was at the time of his death a large holder of the stock of a close corporation, and liable for its debts to a considerable extent by endorsements and written guaranty. By his last will and testament he bequeathed the residue of his estate, after payment of his debts, including a debt due his wife, and the liquidation of the debts of the company, to his children. It appeared that the executors had ample funds to pay the debt to the wife and that every obligation of the company on which the testator was personally, liable or his estate obligated by endorsements or otherwise authorized by his will had been paid, and that the company was able to pay all its debts. On bill for distribution— Held (a) That the gift of the residue vested at the death of testator, and that postponement of distribution until debts were paid did not render the gift one in violation of the rule against perpetuities, (Z>) That the proper construction of the will limited the debts of the company to be paid before distribution to those for which testator was personally’ liable as guarantor or^endorser.
    On appeal from chancery.

      Mr. Hamson P. Lindabwry, for the respondent.

      Mr. Albert C. Wall and Mr. Henry B. Gayley (of the New York bar), for the appellants.
   The opinion of the court was delivered by

Bergen, J.

Charles J. Canda departed this life testate and by his last will bequeathed the residue of his estate to his two sons, Charles A. 'Canda and Abeel Canda, as executors and trustees upon trust to pay to his widow from time to time such sum, either from income or principal, as she might call for, and to apply any surplus income to the liquidation of his indebtedness, and then bequeathed certain shares of the preferred capital stock of the Chrome Steel Works and the capital stock of the Canda Realty Company to three of his daughters. The sixth clause of the will declares:

“After the death of my said wife, the liquidation of my said indebtedness, including _my indebtedness to my said wife, and the liquidation of the indebtedness of the Chrome Steel Works I give, devise and bequeath all the rest, residue and remainder of my said estate to my two sons, Charles A. Canda and Abeel Canda, to be equally divided between them.”

Charles A. Canda died testate and bequeathed to his wife, Ida Holmes Canda, the complainant, his interest in the estate of his father. Subsequently, the legatees named in the will of Charles J. Canda and Ida Holmes Canda entered into a written agreement by which the gifts of the capital stock above recited to his three daughters were abrogated, and all of the property of the estate of the testator instead of being divided as provided in the will, should be equally divided 'between the legatees so that each party should receive on 'the distribution of the estate one equal fifth part thereof; “the distribution;, however, of said shares of said estate is to be made at the time specified in the last will and testament, i. e., after the liquidation of all the debts of the testator, including his indebtedness to his wife and the liquidation of the indebtedness to the Chrome Steel Works.” The validity of this agreement is not disputed. It appears in this record that at the time of the death of the testator he1 was indebted to his wife in a considerable sum which has been reduced to $79,022.60; that the wife is dead and the debt due her still unpaid. It further appears that at the time of the death of the testator he was obligated as guarantor for the Chrome Steel Works for a large sum of money,'but that subsequent to the death of the testator all of his obligations for the Chrome Steel Works have been paid; that the Chrome Steel Works has ample means to pay all its indebtedness, leaving assets in excess of .the capital stock, and that since the death of the testator dividends had been paid on the stock of the Chrome Steel Works, amounting to sixty per cent., a total of $600,000. The complainant, the legatee of Charles A. Canda, files this bill praying for a division of the residue of the estate among those entitled, and after answer by the trustees and the other defendants interested in the estate the cause was referred to an advisory master who, after hearing, advised a decree that the executors now distribute the residue of the estate, first paying the debts of the testator, including that to the estate of his wife, but excluding the unpaid remaining indebtedness of the Chrome Steel Works, and it is from a decree sc' advised that the defendants appeal. We think the decree should 'be affirmed but not for the reason given by the advisory master. The master in giving Ms reasons for the result he reached expresses his distrust of the soundness of the opinion in Lembeck et al. v. Lembeck et al., 78 N. J. Eq. 427; affirmed by this court, 74 N. J. Eq. 848, where it was held that the rule against perpetuities did not apply to the right of possession or enjoyment of the estate, but only where the vesting of the estate was postponed for a period extending beyond a life in being and twenty-one years thereafter. The master intimated that the opinion in the ease cited makes no distinction between ownership and possession, and then proceeds that while precluded by the decision in Lembeck v. Lembeck, supra, from holding that the rule against perpetuities applies to a postponement of possession as distinguished from- ownership* he was not precluded from holding that where there is a limitation upon the time for which such possession may be severed from ownership- and that where the direction of the will operates to withhold possession of an absolute gift for an unreasonable length of time it may be disregarded, and based his conclusion on the rule, which he declared, that where the time, of possession 'was so- uncertain that the court cannot determine with any reasonable approximation when enjoyment and possession would be united with ownership* the provision postponing possession may be disregarded. It is not necessary to adopt any such rule for the proper determination of this cause, and while we decline to at present approve of any such proposition, we ought not to- pass it without -comment simply because we agree to the result reached by the master on other grounds. In our opinion the gift of the residue of testator’s estate vested at the time of his death with postponement of possession until the death of his wife and the debts enumerated were liquidated. What the testator intended by the use- of the word "liquidated” is not entirety clear, for it has several meanings, such as ascertained, determined, fixed, settled, paid, discharged (Black’s Law Dict.), but we have assumed, as most favorable to- the appellants, that the testator meant paid. The question for determination is whether the conditions contained in the will, and upon which the right to possession rests-have been fulfilled.

The first was the death of testator’s wife, which has occurred. Second, the payment of his indebtedness to his wife, which has not been paid, but it is admitted that the executors have ample funds of the estate to- pay the debt due her estate in the regular course of administration, and postponement of distribution cannot rest upon the neglect of the defendant executors to pay this debt. Third, the "liquidation of the indebtedness of the Chrome Steel Works.” It is admitted that' all of the indebtedness of the Chrome Steel- Works for which testator was obligated either as endorser or guarantor have been liquidated, hut the appellants argue that under the terms of the will the right to distribution depends upon the liquidation of all the debts of the Chrome Steel Works, including those which the testator was not obligated to pay either as endorser or guarantor. This we do not conceive to have been the intention of tire testator as expressed in his will, for by it the distribution was to- be made after the death of his wife, and the payment of his debts, in which he included the debt due his wife and tire indebtedness of the Chrome Steel Works which, taken in connection with other parts of the will, does not include anything but testator’s indebtedness. The debts of the Chrome Steel Works, except as he had obligated himself, were not his indebtedness. That there' were debts of the Chrome Steel Works which he was obligated to pay appears in section 14 of the will, where the testator authorizes his executors “to renew any and all guaranties' which I have given and endorsements which I have made in connection with the business of the Chrome Steel Works,” and it is this character of indebtedness of the Chrome Steel Works which we think the testator intended should be paid before distribution, and it being admitted in the cause that all such debts have been liquidated, it seems to us that every condition relating to postponement of possession has been performed, and, therefore, the legatees are entitled to have the residue of the estate distributed. A portion of the estate is the interest which th*e testator had in tire co-partnership of Cauda Brothers, and as to this interest the decree postpones distribution for twelve months after the date of the decree. This pai*ti of the decree is not complained of in the brief of either party. The complainant has not appealed from any part of the decree, nor do the appellants claim to be aggrieved by tins partial postponement of distribution. Appellants’ sole objection is that it was error to adjudge a distribution of any part of the estate, and a postponement of the distribution of testator’s interest in the partnership of Canda Brothers was to that extent favorable to the appellants. The propriety .of this limitation was not argued and requires no consideration by us. In our opinion Lembeck et al. v. Lembeck et al., supra, is applicable to the cause under review and the decree will be affirmed.

For affirmance—Ti-ie Ci-iiee-Justice, Swayze, Trenci-iard, Parker, Bergen,' Minturn, Kamscii, Black, Katzenbach, White, Heppenheimer, Williams, Taylor, Gardner, Aokerson—15.

For reversal—None.


author: Minturn, J.

text:
    Charles C. Randolph, respondent, v. Bridget Rafferty et al., executrices of the estate of John Rafferty, deceased, appellants.
    [Argued November term, 1920.
    Decided March term, 1921.]
    1. Where a will gave the testator’s residuary estate and the income thereof to his widow until her death or remarriage, and then to his children, and thereafter gave his executrices a full power of sale of his realty, the prior devise to the widow constituted no barrier to the subsequent power of sale; but the widow was entitled to hold and enjoy the proceeds of such sale for her benefit for life as though the will had expressly provided that she should do so.
    2. Under a power of sale given by a will the executrices are not required to give a warranty deed, but only such a deed as executors in their representative capacity are legally required and authorized to give.
    3. Where a contract of sale by executrices, acting under a testamentary power of sale, required only a mortgage for a certain time at a specified rate of interest, payment of interest semi-annually could not be required.
    On appeal from a decree advised by Yice-Chancellor Buchanan.

      Messrs. Lwm, Tamblyn & Goiyer, for the appellants.

      Mr. William Newcorn, for the respondent.
   The opinion of the court was delivered by'

Minturn, J.

.This bill was filed by the complainant for the specific performance of a contract by which the defendants, as executrices of John Rafferty, agreed to sell and convey certain real estate in Plainfield. The executrices as defendants filed an answer which alleges that the contract price was grossly inadequate, and that the residuary legatees had called upon the defendants to rescind, and that before complainant had taken any' action thereunder, defendants had rescinded and so notified the complainant, at the same time offering to return $1,000 paid on the execution of the contract. The learned vice-chancellor decrees specific performance and the defendants have appealed from that decree.

The principal matter argued is that under the will of John Rafferty', the defendants’ testator, they had no power to sell. The testator devised and bequeathed to his wife all his remaining estate, both real and personal, and the rents, interest and profits thereof during her natural life, and while she remained his widow; and provided that after her decease or remarriage, the estate was to go to his children in equal shares. The will thereafter gave to the executrices a full power of sale of all his real estate, at such time and upon such terms as they might think fit. The appellants argued that this power of sale did toot comprehend the life estate of the widow, and that no legal title thereto could be made by the executrices, under the contract of sale.

The learned vice-chancellor relied in the main upon Bacot v. Wetmore, 17 N. J. Eq. 250, where the court held that the fact that the land was previously devised in the will constituted no legal barrier to the subsequent power of sale, but held that the disposition of the proceeds of the sale being exclusively for the benefit of the children, and not for the widow, the power was held to extend to the estate of the children alone. Here there is the life estate to the wife, with the remainder over to her children without any provision in case of the exercise of the power of sale for the disposition of the proceeds of sale either to the wife or to' the children. If, therefore, this contract Were to be performed, it is manifest no provision whatever exists to ensure to her tire benefit of her life estate. We think that under these circumstances, the wife is entitled to hold and enjoy-the proceeds for her benefit for life as though the will had provided that in case of the exercise of the power of sale, the widow should have the issues and profits during her life in common with the personal estate bequeathed to her. Otherwise, the questions at issue were correctly disposed of by^ the learned vice-chancellor. The decree, however, is too extensive in requiring the executrices to give a warranty deed, and should be modified so as to require only such a deed as executors in their representative capacity are legally required and authorized to give.

It is not to be presumed that the testator intended to burden his executrices with obligations and liabilities incident to personal covenants peculiar to warranty deeds; and quite manifestly the legal rule imposes no such obligation upon them. Howe v. Harrington, 18 N. J. Eq. 495; Lounsbery v. Locander, 25 N. J. Eq. 554.

A similar comment and modification is rendered necessary regarding that portion of the decree requiring payment of semiannual interest. The contract requires only a mortgage for three years, at five per cent., and that requirement should furnish the limitation of execution in the decree in that respect. Willenlz v. Mechanik, 90 N. J. Eq. 269.

With these modifications the decree will be affirmed.

For ajjb'mance—The Chief-Justice, Swayze, Trknci-iard, Parker, Bergen, Minturn, Black, Katzenbaoi-i, White, HepbenheimeR, Williams, Taylor, Gardner, Ackerson—14.

For reversal—None.

For modUficalion—Ti-ie Chief-Justice, Swayze, Trenci-iard, Parker, Bergen, Minturn, Black, Katzenbacii, White, Heppeni-ieimer, Williams, Taylor, Gardner, Ackerson—14.