author: Mague, J.

text:
    Hannah Waln, appellant, v. William Hance’s Administrators, respondents.

      1. Where the owner of chattels permits the administrators of another’s estate to make an inventory of such chattels, as the property of their decedent, and witnesses a bill of sale of such chattels to his wife, by such administrators, without objection, and makes no claim to the property for several years thereafter, he is estopped, as against the administrators, to assert title in himself as of the time of the inventory.
    2. Where a transfer of chattels by a son-in-law to his father-in-law is, twenty years after the vendor’s bankruptcy, and sixteen years after the vendee’s death, for the first time attacked by the widow of the vendor, to whom the same were sold by the administrators of the vendee, in a suit by the administrators against her for the purchase price, evidence that the vendor remained in possession of the chattels, and testimony of the widow that it was the agreement between her husband and her father that the latter was to turn over the property to the former, are insufficient to show that the transfer was for the purpose of defrauding creditors.
    3. The receipt from the defendant, for the chattels sold to her by the administrators, being in effect an assignment by defendant of her share in decedent’s estate, as security for the price of the property, established such mutual relations of trust between her and the administrators as to take the transaction out of the operation.of the statute of limitations.
    On appeal from a decree advised by Vice-Chancellor Bird, in Hance’s Administrators v. Waln, who delivered the following opinion:
    This bill is filed for the purpose of making effectual the lien of an attachment upon the rights and interests of the defendant, Mrs. Wain, in certain moneys now in possession of the court, the proceeds of the sales of real estate of which Mrs. Wain’s father died seized. The complainants, who are the administrators of the estate of William Hance, who was the father of Mrs. Wain, allege that they are entitled as such administrators to the sum of $2,627.50 out of the interest of Mrs. Wain in such proceeds by virtue of an arrangement entered into between them and her on the 13th day of April, 1876. The administrators claim that certain personal property was the property of William Hance in his lifetime, and that prior to his death it became and was in the possession of William Wain, the husband of the defendant, Mrs. Wain, and that after the death of William Hance these administrators inventoried this property, but separately from the other property of William Hance, which inventory was not filed with the surrogate. They entered into an agreement with Mrs. Wain that she was to take possession of this property at its appraised value, and was to pay and satisfy the administrators therefor out of her share in the estate upon a final settlement thereof. This was expressed in writing and signed by her. In this paper she is spoken of with respect to such settlement as one of the heirs-at-law of William Hance, deceased. The paper is in the following words:
    “Received April 13th, 1876, of the administrators of William Hance, de-ceased, two thousand six hundred and twenty-seven dollars on account of my distributive share of said estate as one of the heirs at law of said William Hance, deceased, and which I hereby direct, authorize and empower said administrators to take out of and deduct from my share on a final settlement of his said estate.
    “$2627.50 (Signed) Hannah L. Waln.
    “ Witness present.
    “W. W. Wain,
    “C. S. Cannon.”
    They gave to her a paper writing with all of the articles so inventoried and their values annexed thereto, showing that she was entitled to the possession and ownership of such property, which is in the following words:
    “Rec’d April 13th, 1876, of Mrs. Hannah L. Wain, wife of William W. Wain, the sum of two thousand six hundred and twenty-seven -^¶¶ dollars in full of the appraised value of the goods and chattels, stock, &e., enumerated and specified in the foregoing list or inventory, which goods and stock are now on the farm occupied by the said William W. Wain, in Chesterfield Township, &, which belonged to the estate of William Hance, deceased, and which goods, stock, &e., are taken by and delivered to the said Hannah L. Hance by the administrators of said William Hance at their said appraised value & as her property by and with the consent of said administrators, for which sum as above they hold the said Hannah L. Hances receipt as one of the heirs of said estate.
    “2627.50 Lewis P. Thompson,
    “For himself and in behalf of the ad“ministrators of Wm. Hance, dec.”
    At the time of the death of Mr. Hance his children entered into an arrangement with their mother, Mrs. Hance, by which the homestead farm was leased to her during her life. She died on the 28th day of March, 1891. Since then proceedings were instituted in partition for the division of said lands amongst the heirs-at-law, which resulted in a sale. The interest of Mrs. Wain in these moneys is the interest which the complainants claim by virtue of their attachment.
    The resistance. to the claim of the complainants may be said to be threefold — -first, that the property never was the property of William Hance, that his administrators never had any right, title or interest therein ; second, if it was the property of William Hance, then it became his unlawfully and by virtue of a participation on his part with his son-in-law, William Wain, in an effort to defraud his creditors; third, that the claim was barred by the statute of limitations at the time of the institution of proceedings in attachment.

      First. Was William Hance the owner of this property at the time of his death ? The only persons who could have made resistance to this claim, as the case stands, were William Wain, the defendant, his wife, and the creditors of the said William Wain. William Wain and William Hance are both dead. Mrs. Wain, the defendant, by her answer makes claim to this property in her own right independently of the arrangement entered into between her and the administrators. But in her testimony she says that it belonged to her husband, and that she never claimed to have owned it. This testimony from her own lips must forever settle this branch of the case against her.
    Now as to any claim of the defendant, Mrs. Wain, through her husband. The administrators of Mr. Hance took an appraisement of the personal property upon the homestead farm on the 11th of April, 1876. On the 13th day of the same month the administrators, with the appraisers, went to the farm occupied by the defendant and her husband, William Wain, and took an appraisement of all the personal property on said farm in the presence of William. Mrs. Wain says she. saw them there and supposed they were engaged in making an inventory. There is no evidence that William Wain did anything else but consent to the making of this inventory. When the arrangement was entered into between Mrs. Wain and the administrators he was one of the witnesses to the paper which Mrs. Wain signed. He lived for several years thereafter without raising any objections whatsoever to the claim of the administrators which they made to this property by the act of making an inventory thereof. Therefore, as between him and the administrators, it would seem quite impossible for -him or anyone through him to make any successful claim to the property so inventoried. It would be useless to cite authorities showing that he is estopped.
    But does it appear that the conduct of William Hance was such as to deprive these administrators of the benefit which they claim ? Supposing the aid which it is said William Hance gave to William Wain in order to conceal his property from his creditors to be true, can the defendant, under the circumstances of this case, protect herself against these administrators? It is not a contest between the administrators of William Hance and William Wain nor between such administrators upon the one hand and anyone who claims through William Wain on the other. I found above, according to the testimony of Mrs. Wain herself, that this personal property was the property of William Wain, her husband. I have also found, as a matter of law, resulting from the testimony in the cause, that by the conduct of William Wain in permitting the administrators to make the inventory and appraisement of this property and thereby to claim it that he was estopped forever thereafter from making any claim to such property. This, therefore, places the title of the property in William Hance at the time of his death. And it therefore follows that this controversy is directly between these administrators, representing William Hance, on the one hand, and Mrs. Wain, the daughter of Mr. Hance, on the other. So far as she is concerned it is manifestly impossible for her in any legal sense to raise this question as against her father’s administrators. This will be seen to be very clear when it is considered that she can have no title if her father’s administrators had none. She cannot proclaim fraud upon her father’s part to prevent his administrators showing title, but insist that as to herself the charge is not applicable.

      Second. But would it be safe, under the circumstances of this case, to hold that the ancestor of these children was guilty of participating with his son-in-law in a fraud to conceal the property of the latter from his creditors? The testimony of one witness is to the effect that Mr. Hance spoke to him about purchasing two cows and a wagon, and that he purchased one cow and a wagon of William Wain, the debtor, only paying for the cow and afterwards returning the wagon. All of the other testimony, except that given by Mrs. Wain, is so meagre as to render it quite unsafe to be relied upon in a matter so important. Mrs. Wain only goes so far as to say that it was understood that her father was to turn the property over to her hnsband, but beyond this, as I have stated, the testimony does not extend.
    These transactions took place in 1872, and William Hance died in March, 1876. In 1872 William Wain was declared a bankrupt, and, according to the answer, an assignee was appointed. As I have stated above, his creditors- and William Wain were the only persons that could raise the question that has been presented as against Mr. Hance or his administrators. William Hance survived the bankruptcy four years. (At the time of his death, William Wain was unquestionably in the actual possession and control of these goods and chattels. If they were William Wain’s in fact, it is fair to presume — so long a period having elapsed since he went into bankruptcy — that they were his lawfully. If they were William Hance’s, there is nothing to show that they were not his lawfully, and this is the conclusion to which I must come from the circumstances of this case, more than twenty years having elapsed since the bankruptcy of "William Wain, during which time his creditors have never asserted any claim to this property.
    Hence, as to both the first and second points made by the defendant — that is, as to the title of the property being in William at the time of Mr. Hance’s death, and as to the illegality of the transaction by which William Hance may have acquired the apparent title thereto in his attempt to conceal it from the creditors of William, his son-in-law — I must conclude in favor of the complainants.

      Third. Is the claim of the complainants barred by the statute of limitations ? This can be determined by ascertaining when the right of action first accrued. When the true spirit of the undertaking, as exhibited in the receipt given by Mrs. Wain to the administrators, is considered from the language used therein, it will be difficult to decide that such right of action had accrued at the time of the institution of the proceedings in attachment. The receipt acknowledges that she received so much money on account, as one of the heirs-at-law of William Hance, deceased, and authorized the administrators to take and retain that amount out of her share of his estate on final settlement. This, then, was so much on account, and that was to be considered on a final settlement. The claim is — the administrators having filed their account with the surrogate, and it having been approved by the orphans court in the year 1884 — that the right of action accrued to the administrators immediately upon the allowance of said account by the court. The account shows that there was a balance in the hands of the administrators of over $1,900, over $1,200 of which was due to the administrators as commissions, leaving about $600 to be distributed amongst the next of kin. No steps whatever were taken to obtain a decree of distribution of this balance, nor were any steps taken between the parties themselves to effect a settlement. My conclusion is that the period of time contemplated by the parties when they spoke of a settlement was an actual final settlement when the balance due from one to the other should be definitely ascertained. This being my judgment, had Mrs. Wain presented her plea in the attachment proceedings, resisting the plaintiff on the ground that his action was prematurely brought, she must have prevailed.
    But this view is enforced by the highly inequitable character of the defence. These administrators, upon the 13th day of April, 1876, entered into this arrangement with Mrs. Wain, and in less than two months made application to the orphans court for the sale of lands to pay debts. In that application they charged themselves not only with the amount of the inventory of personal property found at the homestead of the deceased, but with the $2,627.50, the amount of the inventory found in the possession of William Wain, the husband of the defendant. This was a matter of public record. All of the real estate of which William Hance died seized, except the homestead, was sold to pay debts. It is impossible to doubt but that Mrs. Wain and her husband understood that the administrators had so charged themselves. William Wain survived at least ten years without questioning the validity of the transaction, and Mrs. Wain herself has never warned the administrators that their right to claim the difference between the $2,627.50 with which they had so charged themselves, and whatever balance might be due to her on a final settlement, would be resisted by her. Again, it would be most unjust to compel these administrators to suffer the loss of this large sum upon any mere technicality, if sound principles would sustain a contrary view. There being no reasonable ground for disputing the legality of the transaction between the administrators and Mrs. Wain, they became unquestionably liable for the amount of that inventory. Therefore, as between themselves and the next of kin, it is impossible for them to alter their account. They must stand charged with that item.
    But why was this delay upon the part of the administrators in taking proceedings to compel an adjustment of these differences? It was because of an arrangement entered into between the heirs-at-law of William Hance and his wife, on the day that William was buried. This arrangement was an agreement between the next of kin (his eight children) and Mrs. Hance, in and by which they leased to her the homestead farm during her lifetime. In this the sons-in-law, who were two of the administrators, joined. Mrs. Hance, the widow, survived until the 28th day of March, 1891. I think it is extremely reasonable to believe that, at the time the arrangement was entered into between the administrators and Mrs. Wain, which was less than three weeks after the lease was made, they had in contemplation the fact that that lease was for the period of the lifetime of Mrs. Hance, and that a final settlement of the estate would not take, place until after her death. As I review the exhibits showing the extent and character of the indebtedness of Mr. Hance, and bear in mind the number of his children, it is quite clear to my mind that it was evident to all concerned that the interest of each one in the personal property, after the discharge of all liabilities, would be far less than $2,627.50. This is put beyond all possible controversy when the fact is brought to light that two of his three farms were sold, one for $9,067.50 and one for $11,406.30. Therefore, it requires no reasoning to satisfy the mind that all parties knew that whatever balance might remain for distribution upon the final settlement of the account of the administrators with the court, whether that was at the expiration of one year or ten, the balance in hands of the administrators, if any, would only be such surplus as would result from the sale of real estate, than which nothing could be more uncertain.
    I have said that the parties must have contemplated their settlement after the death of Mrs. Hance, and that, even after that event, had Mrs. Wain filed her plea in abatement to the proceedings in attachment, she must have prevailed. And with this view of the situation and relation of the parties, and the small interest that Mrs. Wain had in the balance in hand of the administrators, such balance being less than $100, how inequitable and unjust it would have been deemed had the administrators attempted, before the death of Mrs. Hance, to have enforced their claim against Mrs. Wain for the balance due to them from her. Had such an attempt been made, there can be little doubt but they would have been defeated at Jaw. But if her remedy at law was found to be inadequate, doubtless she could have obtained relief in this court upon the ground of fraud, for a court of equity undoubtedly would have said that, under the circumstances of this case, it is very manifest that the parties did not contemplate a settlement until the expiration of the lease given to Mrs. Hance, the widow, by her children and sons-in-law.
    Any other view than that which I have expressed would be making use of the statute of limitations to accomplish fraud. This certainly would not be allowed by a court of equity in such cases to any greater extent than is allowed when persons attempt to achieve a fraud by means of the statute of frauds and perjuries. In the latter case it is never tolerated by a court of equity. 1 Beach Eq. § 84; Ryan v. Dox, 34 N. Y. 307.

    The paper writing executed by Mrs. Wain and given to the executors was, in effect, an assignment by way of security of sufficient interest in her father’s estate to satisfy the amount due to the administrators from her upon final settlement. This transaction established such mutual relations of trust and confidence as to bring into operation the doctrine laid down by Perry (2 Perry Trusts § 863), where he says: “A cestui que trust cannot set up the statute against his co-cestui que trust nor against his trustee.”
    I think the complainants are entitled to relief, and will so advise, with costs.

      Mr. Joseph H. Gasldll, for the appellant.

      Mr. William M. Banning, for the respondents.
   Mague, J.

(dissenting).

As I am unable to vote to affirm the decree in this cause, I deem it proper to briefly state my reasons.

By the two receipts exchanged between the parties, dated April 13th, 1876, and set out in the opinion of the vice-chancellor, appellant became the owner of certain personal property which she is estopped to deny belonged to the estate of her father, William Hance, deceased, and respondents, administrators of said deceased, became entitled to its purchase price, $2,627.50, to be paid in the manner set out in appellant’s receipt.

I think the learned vice-chancellor misconstrued the terms óf that receipt in respect to such payment. When appellant thereby gave authority to respondents, as administrators, to take out and deduct the price of that property from her share, on a final settlement of the estate, the authority conferred was, in my judgment, plainly limited to her share of such moneys as, upon such settlement, would be in the hands of the administrators. Obviously, the receipt did not create any charge upon appellant’s interest in the real estate of deceased which did not come to the hands of respondents as administrators.

If appellant’s distributive share in the hands of the administrators after final settlement should prove insufficient to satisfy the claim of respondents, doubtless an implied contract on her part at once arose to pay respondents so much of the purchase price as remained unpaid.

Respondents’ accounts, passed by the orphans court in 1884, show that appellant’s distributive share was, in fact, insufficient, and if that account was final, she thereupon became liable for the balance.

But such liability furnishes no ground for a resort to equity. Respondents’ remedy by an action at law was complete.

Respondents resorted to an action at law by issuing an attachment against the interest of appellant (who had become a nonresident) in the proceeds of the sale of real estate which had descended to her and others as the heirs-at-law of William Hance, and which had been sold by an officer of the court of chancery under a bill for its partition among the owners.

In aid of their proceedings at law, respondents had a right to ask the court of chancery to retain in its custody and control appellant’s share of such proceeds until the determination of the action at law. But there is nothing in the case justifying a court of equity in passing upon the liability of appellant and directing, as this decree does, the payment of her moneys to respondents upon a claim pending in the action at law yet undetermined.

For these reasons I vote to reverse the decree and modify it in accordance with the view above indicated.

For affirmance — The Chief-Justice, Depue, Gummere, Lippincott, Ludlow, Van Syckel, Bogert, Brown, Smith, Talman — 10.

For reversal — Magie—1.


source: Caselaw Access Project

author: Magie, J.

license: Public Domain

text:
    Katie Schmid, appellant, v. Frederic A. Lisiewski, respondent.
    The general rule of equity that damages of an intangible character will not be admeasured by a court of chancery will not be applied in a case where the party found to be liable for such damages admits the amount thereof. In such case the determination of damages by a jury would be useless.
    On appeal from a decree advised by Vice-Chancellor Van Fleet, in Lisiewski v. Boettner et al.

      Mr. Charles Borcherling, for the appellant.

      Mr. Frederic W. Stevens, for the respondent.
   The opinion of the court was delivered by'

Magie, J.

This appeal is from a decree permitting the redemption of a mortgage given by Lisiewski, the respondent, to Mrs. Schmid, the appellant, to secure a part of the purchase-money of a building and lands conveyed by her to him by a deed containing covenants against encumbrances.

The decree, among other things, directed the application to the payment of said mortgage of the sum of $3,517.42, which had been paid under the direction of the court of chancery in this cause by the respondent, in satisfaction of a judgment recovered in an action in favor of Ringler & Company against appellant, upon a lien claim filed by Ringler & Company against said building and land prior to its conveyance by her to respondent.

The petition of appeal challenged the decree only in respect to the direction above specified. No other objection was presented by the petition of appeal or by the argument before us.

This objection to the decree was supported in the argument upon only two grounds.

It was urged that the direction complained of ought not to have been made, because respondent’s damages for the breach of appellant’s covenant against encumbrances had not been fixed by an action at law.

It is doubtless a general principle that damages will not be admeasured by a court of equity when they are. of an intangible character. Palys v. Jewett, 5 Stew. Eq. 302. When, therefore, in a cause in equity, appropriate equitable relief requires an assessment of such damages, the court of chancery will, in some mode, have them assessed by a jury. But when the right to damages is estáblished and the amount thereof is admitted and undisputed, it would be absurd to require an action at law or an issue to be tried by jury. Such is the case before us. Appellant, by her answer, admitted the breach of her covenant against encumbrances and the existence of an encumbrance by way of a lien claim prosecuted to a judgment in an action against her. She admitted, also, that the judgment was justly due and ought to be paid. It was paid by respondent under direction of the court, and.such payment fixed the amount of such damages, and under such admissions an action at law was unnecessary.

Appellant further contended that, although the lien was filed for a just claim and the judgment thereon fixed its proper amount, the respondent was not entitled to damages upon the covenant against encumbrances because of an accord and satisfaction passing between her and respondent subsequent to the delivery of the deed containing dhat covenant. This contention raised a question of fact which the learned vice-chancellor, in the court below, resolved against her.. It is unnecessary to review the evidence, which is fully and fairly stated in the opinion below. It is sufficient to say that,, in our judgment, the conclusions reached are entirely satisfactory for the reasons given therein.

No other questions have been, considered.

• The result is that the decree must be affirmed, with costs.

'For affirmance — The Chief-Justice, Garrison, Mague, Reed, Van Syckel, Brown, Sims, Smith — 8.

For reversal — Dixon, Bogert, Krueger — 3.


author: Garrison, J.

text:
    Anthony Steelman et al., appellants, v. Philip P. Baker, respondent.
    Bonds of .a railroad issued in excess of the amount of stock actually paid in are invalid in the hands of one who was a director at the time of such issue.
    On appeal from a decree advised by Vice-Chancellor Pitney, in Baker, Receiver, v. Guarantee Trust and Safe Deposit Co. et al.

      Mr. Samuel. W. Beldon, for the appellants.

      Mr. Howard. Carrow and Mr. Martin P. Grey, for the respondent.
   The opinion of the court was delivered by

Garrison, J.

The decree appealed from should be affirmed. The carefully-compiled statement-of facts prefixed by the learned equity judge to the conclusions upon which he recommended this decree shows that these appellants were directors of the railroad company at the time the bonds claimed by them were issued, and that said bonds were to a greater amount than the amount, at the time of such issue, actually paid up on the capital stock of the railroad. These facts being clearly sustained by the proofs, the transaction is thereby brought under the ban of the criminal law (P. L. of 1878 p. 20), and can vest no title to the bonds in the wrongdoers. Atlantic City Water Works Co. v. Read, 21 Vr. 665.

This result is the outcome of an accounting in which labor done and material furnished are applied as if they might constitute the “actual payment” required by the statute. The decree, therefore, rests upon the fact that, upon the ground most favorable to the bond-claimants, there had not been any payment for the stock upon which the issue of bonds could be supported. In view of this determination of fact, no further or more stringent construction of the written law is demanded by or necessary to the decision of the pending controversy.

For affirmance — Garrison, Gummere, Ludlow, Mague, Van Syckel, Bogekt, Brown, Krueger, Smith, Talman —10.

For reversal — None.


text:
    Emlen Physick et al., appellants, v. Philip P. Baker, respondent.
    A bill was filed by a receiver to have a corporation mortgage declared void. Strictly responsive answers were filed by certain bondholders. The mortgage was declared to be valid as to all bondholders save those who took their bonds charged with knowledge that they were issued in excess of the amount of stock actually paid in. The first issue of bonds was on a bona fide full-paid stock basis, and certain of the bonds became the property of. the appellants, who, as directors, subsequenly became charged with knowledge that a later issue of bonds was not upon a paid-up stock basis. — Held, that the first issue was valid and that the bonds constituted property in the hands of the appellants, which could not, in a suit thus framed, be taken from them either as a penalty or as a contribution to the general dividend fund for the holders of the subsequent issues.
    On appeal from a decree advised by Vice-Chancellor Pitney, in Baker, Receiver, v. Guarantee Trust and Safe Deposit Co.

      Mr. Thomas B. Harned, for the appellants,
    Mr. Howard Carrow and Mr. Martin P. Gi'ey, for. the respondent.
   The opinion of the court was delivered by

Garrison, J.

This appeal is from the same decree that was affirmed in the preceding case as to the appellants therein. In the present case an insuperable obstacle prevents the affirmance of the decree in its entirety. The difficulty referred to lies in the fact that the decree in effect takes from two of the appellants certain legally-issued bonds, their property, and adds the same to a fund in which they do not participate.. The broad ground upon which the case below was decided and the decree affirmed in the preceding case, was that in the hands of a director of a railroad company, or other person charged with knowledge of the fact, bonds issued in excess of the amount of stock actually paid in, are invalid and worthless.

The proofs, however, showed conclusively that some money was paid for stock issued, of which $70,000 in cash was dejiosited with the state treasurer before the road was begun. Upon the cash-stock basis thus established, seventy bonds, numbered from one to seventy inclusive, were issued to one "Wood, under a • building contract, in payment for labor and material at least equal in value to the face of the bonds. With respect to these bonds, the vice-chancellor who heard the testimony thus speaks: “The proofs show clearly that all bonds issued, except the first one hundred or thereabouts, were so issued in excess of the amount at the time of their issue paid in directly on account of capital stock.” And again, “the result is that all the Wood issue, except the first one hundred, were over-issues and invalid.”

This finding was correct, and established the fact that certain of the bonds were not open to the charge of being in excess of cash-paid stock. A further fact established is that Wood, the owner thereof, had transferred three of these bonds to Boney and seventeen to Physick, both of whom were directors and knew the valid cash basis on which the bonds stood, and the valuable consideration given the company for them.

That the owner of these bonds could give them away, or otherwise dispose of-them if he chose, is too plain to admit of discussion. There is no question, therefore, but that the bonds were lawful property in the hands of the appellants.

Upon these uncontroverted facts, the treatment of these bonds by the chancery decree is not, in my opinion, in accordance with any doctrine of that court. In fine, they were treated precisely as if open to the very infirmity which it was admitted they did not share. They were simply nullified. “At first,” says the equity judge upon this point, “ I was inclined to think that as to seventeen of the bonds — Nos. 54 to 70 — delivered to Physick by Wood, he [the appellant] was entitled to claim that they were not, in fact, over-issues, being part of the first issue of seventy bonds to Wood, which were legalized by the early payments of cash on account of stoch, and, therefore, intrinsically good and valuable in everybody’s hands. But, upon reflection, I am unable to adopt that view as between Dr. Physick and other innocent holders of the bonds.” The final conclusion of the vice-chancellor is that, notwithstanding these bonds were thus legally issued and valid property in the hands of Physick and Boney, they must be deemed void, because of a subsequent infraction of the law by the corporation with respect to an over-issue of later bonds at a time when the appellants were in the directorate of the company.

It should be remarked that these bonds were not issued directly to these appellants so that they became charged with any trust with respect thereto, and further, that there is not a scintilla of proof that at the time the property in these bonds vested in Boney and Physick they contemplated, still less that they had conspired, a subsequent over-issue of bonds repugnant to the statute. The naked proposition therefore is that a director of a railroad company that issues bonds in excess of its 'paid-up stock must contribute to the assets of the company whatever property therein he had acquired previous to the over-issue. Had the legislature annexed this penalty as an incident to such corporate existence, I can readily see' how, in a suit brought for that purpose, the forfeiture must be enforced. But in the absence of such legislation, and when no such suit has been or can be brought, I am unable to recall any principle of law or of equity by which property once established in an owner may compulsorily change hands because of the owner’s subsequent infraction of a statutory duty. Whether this change of ownership be regarded as the infliction of a penalty, the enforcement of a forfeit or the application of personal property to the equalization of the losses of others, it appears to me to rest upon no known juridical foundation. In addition to this, it was wholly outside the equitable action in which it was decreed. The bill was filed by a receiver who prayed to have a mortgage declared void. The answers are simply responsive to this bill. The proofs and the decree treat the mortgage as valid save only as to bonds that to the knowledge of their holders were issued in excess of stock fully paid. Under these circumstances, a decree directing that certain bonds of an established validity be denied to their owners and go to swell a fund to be divided among the subsequent takers of later bonds, is certainly a taking of private property under conditions not aptly described in the term “ due process of law.” The rules under which private property is acquired and held, require that a change of ownership, however circuitously brought about, must be in legal effect a direct adjudication to that end, in a suit where such an issue is pending between the successful and the despoiled claimant. If the doctrine contended for by the respondents be accorded, it must follow that if the appellants on receiving their valid bonds had exchanged them for real estate they might, in a suit by the receiver to set aside the trustee mortgage, be decreed to convey such real estate to the receiver to be distributed among the later bondholders.

Property, whether real or personal, when once legally vested in an owner, cannot, in my judgment, be divested in this off-hand manner.

Every principle of law, as well as widespread commercial interests, requires that property once legally acquired shall not be divestible, save in an action that frames such an issue and upon considerations that attack the legality of the acquisition. Such alone is due process of law, as I understand it; whatever is beyond is extra-judicial, however parallel it may lie to a rugged sense of natural justice.

The practical result is that the decree below should be reversed and so modified as to permit the appellant Boney to participate in the fund as to three bonds numbered forty-five, forty-six, forty-seven, and the appellant Physick as to seventeen bonds numbered fifty-four to seventy, both inclusive.

The other appellant, Conway, was at no time a director. He is a creditor pure and simple. To the extent of one-half of the' amount of his cash claim he should be admitted to a dividend. That is to say, of the cash he advanced one-half will be deemed to have been paid for the stock on which the other half will represent bonds valid in his hands. To this extent he should share in the fund. His claim appears to be $7,000, on which basis his dividend-bearing fund would be $3,500. If there be controversy over these figures there should be a reference to establish the sum.

The decree is reversed.

For reversal — Garrison, Bogert, Brown, Krueger, Sims, Smith — 6.

For affirmance — Gummere, Ludlow, Magie, Van Syckel — 4.


author: Gummere, J.

text:
    William G. Fairchild, appellant, v. Nettie F. Fairchild, respondent.
    1. The only ground upon which the judgment of a court of general jurisdiction can be disregarded in another state is — -first, where the adjudging tribunal had no jurisdiction over the person against whom judgment was pronounced, or over the subject-matter of the litigation; and second, where the adjudication of the foreign tribunal has been obtained by fraud.
    2. Where the plaintiff in a cause is required by statute to have been a Iona fide resident of the state in which his action is brought for a fixed period of time, in order to enable him to maintain his action, the ascertainment by the court of the fact of such residence necessarily precedes a consideration of the merits of the case; a.nd the determination of that question by the court is final, not only in the courts of that state, but in every other jurisdiction where the validity of the judgment comes in question, unless such determination has been procured by fraud.
    3. The pendency of a suit between the same parties, and for the same cause of action, in this state, is no bar to a subsequent suit brought in a sister state. The remedy of the defendant is to apply to the court in which the subsequent suit is brought to stay proceedings, or to refuse final judgment until the suit here is determined.
    On appeal from a decree of the court of chancery, advised by an advisory master.

      Mr. Leon Abhett, for the appellant.

      Mr. Alfred Walling, Jr., for the respondent.
   The opinion^ of the court was delivered by

Gummere, J.

This is an appeal from a decree of the court of chancery, on a bill for maintenance filed by the respondent against the appellant. The parties were married in the city of New York, on August 10th, 1885, and a few days afterward the appellant left his wife and removed to the State of Colorado, and in December of the same year went to Kansas, where he has ever since continued to reside. The respondent was, at the time of her marriage, and still is, a resident of this state.

On the 11th of March, 1887, the appellant obtained a decree of divorce from the respondent in the district court of Stafford county, in the State of Kansas. The respondent, however, was never within the jurisdiction of that court, nor was she served with process in the suit in which the decree was rendered, nor did she ever receive any notice of its pendency.

In April, 1887, this suit was begun in the court of chancery, by the respondent, for the purpose of compelling her husband to maintain her, and, incidentally, to have the decree of the Kansas court declared null and void.

In March, 1888, and while this suit was pending in the court of chancery, the appellant commenced another action against the respondent in the district court of Hodgeman county, Kansas, for a divorce from her, and an annulment of their marriage. To this second Kansas suit the respondent appeared and made defence, and on the 4th day of October, 1888, a final decree was entered in favor of the appellant, divorcing him from the respondent.

In November, 1893, the appellant applied to the court of chancery to open the decree pro confesso which had been entered against him in this suit, and for leave to file an answer setting up the decree of the district court of Hodgeman county as a bar to the complainant’s right to a decree. His application was granted and an answer was filed by him setting up the second Kansas decree.

On the final hearing of the cause the court below found that the appellant had abandoned the respondent without justifiable cause; that he was not a bona fide resident of the State of Kansas, but that he went there solely for the purpose of instituting divorce proceedings against the respondent, and that neither the deóree of divorce made by the district court of Stafford county nor that made by the district court of Hodgeman county was a bar to the suit, and granted the respondent the relief asked for.

So far as the decree of divorce which was granted by the Stafford county court is concerned, it is clear that it was without extra-territorial effect. The respondent was never within its jurisdiction, she was not served with process, nor was any notice of the pendency of the proceedings given to her, although her place of residence was known to the appellant. Under similar circumstances, a decree of divorce, pronounced by a circuit court of the State of Illinois, was refused recognition by this court in the case of Doughty v. Doughty, 1 Stew. Eq. 581.

The decree of the district court of Hodgeman county, however, stands on a different footing. That court had jurisdiction over the parties, the respondent having voluntarily appeared and made defence to the action brought against her there by the appellant. It also had jurisdiction, by virtue of the Kansas statute, which was offered in evidence, over the subject-matter of the suit. Counsel for the respondent contended before us that the court was without jurisdiction over the subject-matter of the litigation, because, at the time of its institution, the marriage relation no longer existed between the parties, so far as the State of Kansas was concerned, it having already been dissolved by the decree of the Stafford county court. But this was a matter of defence which should have been set up in the second Kansas suit, and cannot be considered in this action. . So, too, the question of the bona fides of appellant’s residence in Kansas, which was passed upon by the court of chancery, was one for the exclusive consideration of the Kansas court. By the statute of that state the plaintiff in an action of divorce is required to have been an actual resident, in good faith, of the state for one year next preceding the filing of his petition. It was, therefore, necessary for the Kansas court, before taking up the consideration of appellant’s case upon the merits, to determine whether he had been an actual resident of the state, in good faith, for at least a year next preceding the commencement of his action, and that decision, unless procured by fraud, is conclusive, not only in Kansas but in every other jurisdiction where the validity of the judgment comes in question. Kinnier v. Kinnier, 45 N. Y. 540; Kerrigan v. Kerrigan, 2 McCart. 147; Nichols v. Nichols, 10 C. E. Gr. 63.

Can this judgment, rendered by a court which had jurisdiction over the parties and over the subject-matter of the litigation, be ignored by the courts of this state, notwithstanding the prescription of the constitution of the United States, supplemented by the federal statute of 1790, that the judicial proceedings of each slate shall have the same faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state where such proceedings are had ? It seems to me not, for, while this constitutional provision and the federal statute referred to have been the subject of more or less diversity of judicial opinion, it is now entirely settled that the only grounds upon which the judgment of a court of general jurisdiction can be disregarded in another state are — -first, where the adjudging tribunal had no jurisdiction over the person against whom judgment was pronounced, or over the subject-matter of the litigation; and second, where the adjudication of the foreign tribunal has been obtained by fraud. Moulin v. Insurance Company, 4 Zab. 222; Mackay v. Gordon, 5 Vr. 268; Jardine v. Reichert, 10 Vr. 165; Davis v. Headley, 7 C. E. Gr. 121; Nichols v. Nichols, 10 C. E. Gr. 174; Doughty v. Doughty, 12 C. E. Gr. 315; S. C. on appeal, 1 Stew. Eq. 581; Royal Arcanum v. Carley, 7 Dick. Ch. Rep. 642.

Neither of these conditions exists in the judgment now under consideration. As has already been stated, the Kansas court had jurisdiction over both the subject-matter of the suit and over the parties to it; and although it was insisted before us, by counsel for the respondent, that the decree of that court was the product of fraud, an examination of the testimony in the case fails to disclose any substantial ground for such a charge.

It was contended, both in the court below and in this court, that the fact that the present suit was pending in the court of chancery of this state at the "time of the institution of the proceedings in the Hodgeman county court, deprived the foreign tribunal of jurisdiction. This contention is without force. The pendency of a suit between the same parties, and for the same cause of action, in this state, is no bar to a subsequent suit brought in a sister state. The remedy of the defendant is to apply to the court in which the subsequent suit is brought, to stay proceedings, orto refuse final judgment, until the suit here is determined; and the granting or refusal of such application is a matter of discretion in the court to which it is made. Bowne v. Joy, 9 Johns. 221; Hatch v. Spafford, 22 Conn. 485; Newell v. Newton, 10 Pick. 470; Stanton v. Embrey, 93 U. S. 548; Fulton v. Golden, 10 C. E. Gr. 353; Kerr v. Willetts, 19 Vr. 78.

. The result is that the decree in the second Kansas suit was a complete bar to the action brought in the court of chancery of this state, and that, consequently, the decree brought by this appeal should be reversed, and the bill of complaint dismissed.

Por reversal — The Chief-Justice, Depue, Gummere, Lippincott, Ludlow, Mache, Van Syckel, Bogert, . Brown, Sims, Talman — 11.

For affirmance — None.


text:
    Charles I. Wooster, appellant, v. William T. Cooper et al., respondents.
    Where a testator gives an estate for life only, by express words, and annexes to it an absolute power of disposal, the devisee takes a life estate only and not a fee; and this rule is applicable to bequests of personalty as well as to devises of realty.
    On appeal from a decree advised by Vice-Chancellor Bird.

      Mr. John W. Wesoott and Mr. John J. Crandall, for the appellant.

      Mr. William Moore and Mr. James Buchanan, for the respondents.
   The opinion of the court was delivered by

Gummere, J.

Benjamin D. Cooper died in the month of March, 1893, having made his last will on December 31st, 1881, by which, among other things, he provided as follows:

“I order and direct that all my estate,real, personal and mixed, shall, during the life of my beloved wife, Tacy Cooper, should she survive me, pass into her hands, and be subject to her sole management and control, to keep and use or sell and dispose of the same as she shall see fit, and my executors hereinafter named shall not, during said time, be responsible therefor.
From and after the death of my wife, should she survive me, otherwise from and after my death, all my estate, real, personal and mixed, which shall then remain, I order and direct my executors hereinafter named, or the survivor of them, to dispose of, as soon as conveniently may be thereafter, as follows.”

The will then directs a conversion of the estate into cash, and the distribution thereof among the respondents in this case.

Testator’s wife, Tacy, survived him and, under the terms of his will, took possession and control of his entire estate, real and personal, and continued to possess and enjoy the same until her death, which occurred February 24th, 1894. Testator’s wife made no disposition of any portion of her husband’s estate during her lifetime, but she left a will in and by which, after directing the payment of her debts and funeral expenses, she gave, bequeathed and devised all her property, both real and personal, wherever situate and whatever the same might be, to her nephew, Charles I. Wooster, the appellant in this case, to him and his heirs forever.

Under this last-mentioned will, the appellant claims to be entitled to the whole of the estate of Benjamin D. Cooper, which was in the possession of his wife, Tacy, at her death, his insistment being that she was the absolute owner thereof by the terms of her husband’s will, because there was coupled with the devise to her an absolute and unqualified power to dispose of the estate.

The vice-chancellor, by the decree appealed from, overruled this claim, and held that, by the will of her husband, Tacy Cooper took only a life interest in his estate, and that at her death so much of it as had not been disposed of by her in her lifetime went to her husband’s legatees.

I agree with the learned vice-chancellor in this construction of the will of Benjamin D. Cooper. It gives to his wife, by express words, a life estate in his property, and then annexes to it a power to dispose of the same without qualification or limitation. The rule that a devise of an estate, generally, with a power to dispose of the same absolutely and without limitation, imports such dominion over the property that an estate in fee is created, and that a devise over is consequently void, has one exception, which is this: That where the testator gives an estate for life only, by certain and express words, and annexes to it such a power of disposal, the devisee for life will not take an estate in fee.

This exception was recognized and enforced by this court in the case of Downey v. Borden, 7 Vr. 460, and again in the case of Pratt v. Douglass, 11 Stew. Eq. 533, and in the latter case it was declared to apply to bequests of personal estate as well as to devises of realty. These cases have definitely settled the law on this subject in New Jersey, and the propriety of the rule laid down in them is no longer open to discussion.

The decree of the court of chancery should be affirmed.

For affirmance — The Chief-Justice, Depue, Gummere, Lippincott, Ludlow, Mague, Van Syckel, Brown, Krueger, Sims, Talman — 11.

For reversal — None.


text:
    Florence S. Aspinwall, appellant, v. Summer D. Aspinwall, respondent.
    1. In cases where no special equities exist, sections 56 and 64 of the Chancery act (Rev. pp. 11$, 115) provide the only methods by which a decree of the court of chancery, for the payment of a sum of money due upon a contract between the parties, can be enforced, to wit, by the sequestration of the estate of the defendant, by fieri facias against his real and personal property, and, in cases of fraud, by capias against his person.
    2. Where costs are directed to be paid by an interlocutory order, which cannot be enforced by execution, their payment may be compelled by attachment for contempt; but where they are awarded as an incident to the final decree in the cause, their payment can only be enforced by those methods which the law designates for the enforcement of the decree itself.
    On appeal from an order of the chancellor.

      Mr. CorÜandt Parker and Mr. Chauncey G. Parker, for the appellant.

      Mr. Samuel Kalisch, for the respondent.
   The opinion of the court was delivered by

Gummere, J.

The appellant and the respondent, who is her husband, entered into articles of agreement providing for a separation between them, in which the respondent agreed, among other things, to pay to his wife a certain sum of money each week for her support. Upon his failure to comply with this provision of the contract, the appellant filed her bill in the court of chancery to compel the performance by her husband of the articles of agreement, and particularly the payment of the weekly allowance stipulated for therein. The chancellor decreed the performance of the contract; and that portion of the decree which directed the payment by the husband to the wife of the moneys which had become due to her, under the stipulation to pay the allowance, was affirmed by this court. Aspinwall v. Aspinwall, Dick. Ch. Rep. 302. The respondent having failed to pay to the appellant the moneys decreed to be due to her under the articles of separation, after service upon him of a certified copy of the decree and a demand for payment, she applied to the chancellor for an attachment for contempt against him to compel the payment thereof. The chancellor, considering that an attachment was not a proper method for the enforcement of the appellant’s decree, denied the application, and from the order of denial this appeal is taken. \

In my opinion, the application for an attachment was properly refused. It is true, as urged by counsel for the appellant, that, in the earlier days of the court of chancery, the only method by which a decree for the payment of money due upon a contract could be enforced, as well as all other decrees except those which were for the land itself, was by process of contempt; but that was because such decrees operated only in personam. This defect in the law, however, has been remedied in this state by statute. Rev. pp. 113,115, §§ 56, 6j. By these provisions the legislature has clothed the court of chancery with power to enforce its decree by the sequestration of the estate, both real and personal, of the defendant, and by the issuing of writs of fieri facias and capias ad satisfaciendum against him; and has given to the decrees of that court which direct the payment of a sum of money by one person to another the force, operation and effect of judgments at law in the supreme court. In my opinion, the effect of this legislation was to do away with the process of contempt, as a method of enforcing decrees for the payment of moneys due upon contracts between the parties, in cases where no special equities exist, and to substitute therefor sequestration of the defendant’s estate, the'writ of fieri facias against his real and personal property, and, in cases of fraud, the writ of capias against his person.

The conclusion that decrees of this kind, in cases where there is no pretence of fraud, can ordinarily be enforced in this state by process of attachment, can only be reached by ignoring that provision of our constitution which forbids the imprisonment of any person for debt in any action, or on any judgment founded on contract, unless in cases of fraud (Const. Art. I. ¶ 17); for the ultimate result of proceedings for contempt, where they are tised as a method of relief inter .partes, is the imprisonment of the party proceeded against.

A similar view has been taken by the courts of England of the effect of the statute of 33 and 33 Viet. c. 63, passed for the abolition of imprisonment for debt, which provides that, with the exception of certain cases mentioned in the act, no person shall be arrested for making default in payment of a sum of money. In the case of Esdaile v. Visner, L. R. 13 Ch. Div. 421, it was held by the English court of chancery that since the adoption of that statute process of contempt could no longer be issued out of that court for the purpose of compelling a person to make payment of a sum of money which he had been directed to pay by the order of that court, but that the method provided by the act for the enforcement of such orders must be followed.

It is contended, on behalf of the appellant, that as a large part of the decree which she seeks to enforce is for costs, such part is collectible by proceedings for contempt, even if the original debt cannot be collected by that process. But this contention cannot be sustained. Whether or not costs can be collected by attachment depends upon the character of the order or decree which has been entered for their payment. If it be an interlocutory or independent order for their payment, where, by law, an execution cannot be awarded for their collection, then the party against whom they are awarded may be proceeded against by attachment; but if the costs which are ordered to be paid are an incident to the final decree in the cause, their payment can only be enforced by those methods which the law designates for the enforcement of the decree itself.

The order appealed from should be affirmed, with costs.

For affirmance — The Chief-Justice, Garrison, Gummere, Lippincott, Ludlow, Magie, Van Syckel, Bogert, Brown, Sims, Smith, Talman — 12.

For reversal — None.


author: Per Curiam.

text:
    Robert C. Hutchinson, appellant, v. Sara Exton et al., respondents.
    In case of a gift by a testator of all his real and personal estate to an executor and trustee, with power to convert the personal estate into money, and if there be any surplus after making certain appropriations of the interest and income, to pay and divide the balance of such income amongst the testator's children at the discretion of the trustee, and in case any child should die leaving children, such children collectively to take the parent’s share; and with a like power to sell and convey any of the real estate, and, at the death of the executor and trustee, directing the whole estate, real and personal, to be equally divided amongst his six children, and in case of the death of any child leaving children, such children to take collectively the parent’s share. Upon the death of the trustee, one child having died after the death of the testator and in the lifetime of the trustee, leaving a husband and one child her surviving, such child being the person indicated as donee at the period of distribution, takes the whole estate, real and personal, by way of substitution under the will of the testator, and the husband takes nothing as administrator of his deceased wife or as her next of kin; nor is he entitled to any interest as tenant by the curtesy, since the wife died during the continuance of the particular estate, never having been seized of the remainder in fee. Upon the death of the trustee and tenant for life, the child of the deceased wife became entitled, not as heir to her mother, but as devisee under the will of her grandfather.
    On bill for partition and accounting.
    On appeal from an order advised by Vice-Chancellor Bird, in Exton v. Hutchinson, who delivered the following opinion;
    The questions presented arise on exceptions to the master’s report made in pursuance of an order upon a bill filed to ascertain and settle the rights and interests of legatees and devisees under the last will of Adam Exton, deceased, who, at the time of his death, was possessed of a large amount of real and personal estate. By the sixth clause of his will he gave to his wife all his interests in his real and personal estate, which he was entitled to in a certain copartnership, and all other his real and personal estate, in trust, securing to Ms wife an income, of $3,000, and enough to preserve the .estate in proper condition, and to divide the balance of the income between Ms children, with power to withhold any share and to pay the same according to her judgment, with power to sell or mortgage any of the real estate, or to sell any of Ms personal estate, excepting only certain stock—
    “ The proceeds of such sales might be by her reinvested in any good and sufficient form, or she might be at liberty to divide the said proceeds or any portion thereof among my said children, share and share alike, the issue of any deceased child taking collectively the share of such parent.”
    The seventh and controlling clause is as follows :

      “ Whatever of said property may remain at the death of my said wife, of real or personal, or of principal or of interest, or of both undistributed or unsold by her, shall be divided between my said six daughters, share and share alike, the issue of any deceased child taking collectively the share of the parent.”
    Adam Exton, the testator, died on the 17th day of August, 1887, leaving six children him surviving. Eleanor Hutchinson, one of said children, died on the 6th day of October, 1888, leaving her husband and one child (Ida) her surviving. Elizabeth, the widow, died on the 22d day of March, 1894. The master reports that the five surviving daughters are' each entitled to the equal undivided one-sixth part of the whole of said estate, and that Robert C. Hutchinson, administrator of Eleanor E. Hutchinson, is entitled to one equal undivided sixth part of said personal property, and said Ida E. Hutchinson is seized in fee of one equal undivided sixth of the said real estate, subject to the said right of curtesy of the said Robert O. Hutchinson therein. The said defendant, Robert C. Hutchinson, is entitled ■ to his curtesy in the said equal undivided sixth part of said real estate of which the said Ida E. Hutchinson is seized as aforesaid.
    The said Robert Hutchinson, who is administrator of the said Eleanor, was her husband.
    I think that Robert C. Hutchinson is not entitled to any of the personal estate as administrator or otherwise, nor to any interest in the real estate as tenant by the curtesy.
    First, as to the personal estate. The title to this is given absolutely to the widow, as trustee, during her lifetime, except only so much of the income as may be in excess of $3,000, which excess she may distribute amongst the six daughters of the testator; or in case of the death of any daughter, leaving-children, such children collectively take the parent’s share. Nothing whatever of the principal of this personal estate is in any manner given to the children of the testator during the lifetime of his widow, who is trustee. Therefore, at the death of Mrs. Hutchinson she had no right or title whatsoever in any of the principal of her father’s ] ersonal estate. No part of this could her husband, either as next of kin or as administrator, possibly lay claim to before the death of the widow, who held the title by express directions.
    At the death of the trustee came also the period of the distribution of the estate according to law. Each child then living was entitled to an equal share of the personal estate, and in case of the death of any, leaving children, such children were entitled collectively to the share the parent would have taken if living. Here, then, at the period of distribution express provision is made for the persons who are to take. In case of the death of any child, leaving children, such children are substituted in the place of the parent. I think this case is clearly governed by that of Crane v. Bolles, 4 Dick. Ch. Rep. 378; Dawson v. Schaffer, 30 Atl. Rep. 91, affirmed at the last term of the court of errors; Wood v. Bullard, 25 N. E. Rep. 67. This being so, the exceptions to the master’s report should be sustained.
    The qualifications or conditions of the wife’s interest in lands necessary to give rise to a tenancy by the curtesy are not presented in this case.

      Bouv. L. Diet. p. Iff8 says :
    “An estate by the curtesy is an estate for life, created by act of law, which is defined as follows: When a man marries a woman, seized at any time during the coverture of an estate of inheritance, in severalty, in coparcenary or in common and has issue by her born alive, and which might by possibility inherit the same estate as heir to the wife, and the wife dies in the lifetime of the husband, he holds the lands during his life by the curtesy of England.” 4 Kent. Com. 27.

    The second condition in this definition is that of seizin. The wife must be seized of an estate of inheritance. According to the English rule it must be a seizin in deed.
    I understand the rule in this country to be that the husband is entitled to his curtesy in lands in which the wife at any time had the right of immediate possession, as in case the wife is entitled to a remainder in fee, and the tenant for life should die on the first day of the month, the wife,- though dying immediately thereafter, her seizin would be such as to enable the surviving husband to claim curtesy, either a co-tenant or lessee being in actual possession. Mr. Kent says that the law vests the estate in the husband immediately upon the death of the wife, without entry. 44 Kent Com. *29; 1 Washb. Real Prop. (4th ed.) 174. In this ease the title to the real estate, as well as to the personal, was absolutely vested in the trustee during her life. It is very clear that no title whatsoever vested in any of the children of the testator during the lifetime of the trustee. The trustee not only had the power of selling and giving title, but the title itself. It is true it may be said that each child had a contingent interest dependent wholly upon surviving the tenant for life, in case the tenant for life did not, under the power to sell, execute such power. Hence the enjoyment of - seizin of the fee was dependent upon the children surviving the tenant for life, and also upon the failure of the tenant for life executing the power to sell committed to her.
    This condition of survivorship necessary to the seizin of the fee, contemplated by the law, did not arise in the case of Mrs. Hutchinson, she having died previous to the death of the tenant for life.. No estate of inheritance having come>to her, she never was seized of any right of possession of any estate whatsoever, either legal or equitable. Consequently, she comes not within any definition providing for the right of tenancy by the curtesy. 2 Black. Com. 126, 127; Co. Litt. 29 b; 8 Co. 34. In the Johnson edition of 2 Bac. Abr. (1868) p. 13, the principle is thus plainly expressed: “ The estate and seizin of the wife ought to begin some time during the coverture, so the words of the law import.” It was expressly decided in Somer v. Partridge, 2 Atk. 47, that “tenancy by the curtesy must come out of the inheritance and not out of the freehold. A tenancy by the curtesy is a continuation of the inheritance in the husband. There can' be no tenancy by the curtesy where the children take by virtue of a remainder over and not by descent from their mother. To entitle the husband to be tenant by the curtesy the inheritance must descend upon the children.” In Barker v. Barker, 2 Sim. 250, it was decided “ a devise to A and her heirs; but if she died leaving issue, then to such issue and their heirs. A died leaving issue. Held, that her husband was not entitled to be tenant by the curtesy.” In Stead v. Platt, 18 Beav. 50, it was decided that “ there is no estate by the curtesy issuing out of an estate pur autre vie. The seizin of the wife must be an actual seizin or possession of the lands; not a bare right to possession which is a seizen in law but an actual possession which is a seizin in deed. And therefore a man shall not be tenant by the curtesy of a remainder or reversion.” 2 Black. Com. 127; Gibbon v. Eyden, 7 L. R. Eq. Cas. 371; 38 Law Jour. Ch. 377.

    In considering this question in the case of Hearle v. Greenback, 3 Atk. 695, 716, Lord-Chancellor Hardwicke said: “ But considering what is necessary to make a tenant by the curtesy; the wife must have the inheritance, and there must be likewise a seizin in deed in the wife during coverture.” As to this seizin in deed referred to in the English law, I think that the rule laid down by Chancellor Kent, as above quoted, is to be regarded as controlling in this country.

      4 Kent Com. 29 says:
    “The wife according to the English law must have been seized in fact and in deed and not merely of a seizen in law of an estate of inheritance, to entitle the husband to his curtesy. The possession of the lessee for years is the possession of the wife as reversioner; but if there be an outstanding estate for life, the husband cannot be tenant by the curtesy of the wife’s estate in reversion or remainder, unless the particular estate be ended during the coverture. This is still the general rule at law, though in equity the letter of it has been relaxed by a free and liberal construction. The circumstances of this country have justly required some qualifications of the strict letter of the rule relative to a seizin in fact by the wife; and if she be owner of waste uncultivated land, not held adversely, she is deemed seized in fact so as to entitle her husband to his right of curtesy.”

      1 Washb. Real Prop, [fith ed) 163, 165, 173.

    This view sustains the further exceptions I will advise accordingly, with costs.

      Mr. Garret D. W. Broom, for the appellant.

      Mr. Bailón B. Hutchinson, for the respondents.
   Per Curiam.

Order affirmed, for the reasons given in the court of chancery.

For affirmance — The Chief-Justice, Depue, Gummere, Lippincott, Ludlow, Magie, Van Syckel, Bogert, Brown, Smith, Talman — 11.

For reversal — None.


text:
    Rodman M. Price et al., appellants, v. Anna M. Forrest, administratrix, et al., respondents.
    On appeal from an order of the chancellor, whose opinion is reported in Forrest v. Price, 7 Dick. Ch. Rep. 16.

      Mr. Flavel McGee, for the appellants.

      Mr. Cortlandt Parker, for the respondents.
   Per Curiam.

Order affirmed, for the reasons given by the chancellor.

For affirmance — The Chief-Justice, Depue, Gummere, Lippincott, Ludlow, Mague, Van Syckel, Brown, Krueger, Sims, Smith, Talman — 12.

For reversal — None.


text:
    William R. Henninger et al., appellants, v. Charles E. Heald et al., respondents.
    On appeal from a decree advised by Vice-Chancellor Bird, whose opinion is reported in Henninger v. Heald, 7 Dick. Ch. Rep. 431.

      Mr. Theodore Little, for the appellants.

      Mr. Frederic W. Stevens and Mr. R. Wayne Parker, for the respondents.
   Per Curiam.

Decree affirmed, for the reasons given in the court of chancery.

For affirmance — The Chief-Justice, Garrison, Ludlow, Magie, Bogert, Brown, Smith, Krueger, Talman — 9.

For reversal — None.


text:
    Andrew Otterson et al., appellants, v. Sarah M. Hall, respondent.
    On appeal from a decree advised by Vice-Chancellor Green, whose opinion is reported in Hall v. Otterson, 7 Dick. Ch. Rep. 522.

      Mr. Peter V. Voorhees and Mr. Frank T. Lloyd (of the Philadelphia bar), for the appellants.

      Mr. Frederic W. Stevens, for the respondent.
   Per Curiam.

Decree affirmed, for the reasons given in the court of chancery.

For affirmance — The Chief-Justice, Bogert, Brown, Krueger, Smith, Talman — 6.

For reversal — Depue, Garrison, Ludlow, Magie, Sims — 5.


author: The Chancellor.

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    Eveline Verona Smith, Eugene V. Smith, Ella A. Fuller and Elton A. Smith v. Andrew J. Smith et al.
    A testator devised and bequeathed the residue of his estate to'nine persons, whom he styled a board of trustees, and, after providing for the perpetuation of such board, for a president thereof and succession in the office of president and for the president’s compensation, duties and powers, and for restrictions upon the action of the board of trustees, he added this language: “The property and estate herein bequeathed is to be held in trust by the said board of trustees for the following object, namely: I desire that my entire estate with the accumulations shall he used in establishing and conducting a school for apprentices and young mechanics on plans to be hereafter described by me, or in case of my death before perfecting said plans, the school above named is to be conducted on plans which I have from time to time described to most of the board of trustees herein named and who shall approve of final practical plans in keeping therewith.” The testator did not perfect or prescribe plans for the school after the will was made, but prior thereto, in conversations, at various times, with the several trustees, he had communicated to them fragmentary, crude and general ideas with reference to the school he intended. Upon the validity of the trust being questioned by the widow and children of the testator, who constitute his next of kin and lieirs-at-law — Held, (a) that the expressed intention of the testator was to qualify the character of the school by plans made by himself, and that he did not contemplate the establishment of a school otherwise than as controlled by his plans; (b) that because of the statute (Sev. p. 1247 $ 22), which requires that a will of the character of the one in question, shall be in writing, signed by the testator and attested by two witnesses, the reference by the testator to the verbal communications made by him to the trustees will not incorporate those communications in his testamentary disposition; and (a) that, as the trust was for a school of restricted or qualified character and the restriction or qualification does not appear, the trust is not defined and cannot be executed against the heirs-at-law and next of kin, and therefore the legal estate will be decreed to be held for them.
    On bill, answer, replication and proofs.
    The object of this bill is to question the validity of the trust proposed in the will of Hezekiah B. Smith, deceased. The will is as follows:
    “In the name of God, amen: I, Hezekiah B. Smith, of Smithville, Burlington county, New Jersey, being of sound mind, memory and understanding, ■do make and publish this my last will and testament in manner following, that is to say:
    “After payment of my just debts and charges, I devise and bequeath all of my property — personal and real, to a Board of Trustees, to be composed as follows, namely: Edward F. Burns, Joseph J. White, Bradford W. Storey, George A. Lippincott, Charles H. Chickering, and George D. Field, all of whom are stockholders in the H. B. Smith Machine Company, of Smithville, New Jersey, Andrew J. Smith, of Hightstown, New Jersey, and Eayre O. Lippincott and Benjamin F. Crozier, of Smithville, Burlington County, New Jersey, being nine in all; and in case of the resignation or death of any Of the said Board of Trustees, the vacancy shall be filled by a vote of the remaining Board, and preferably, with shareholders of The H. B. Smith Machine Company, that the mutual interests now established may continue.

      “ I hereby constitute and appoint Andrew J. Smith, President of the Board of Trustees, and he shall receive a fair compensation or salary for actual services performed, the amount to be determined by the said Board of Trustees; and in case of the resignation or death of the President, his successor in office is to be elected by the remaining members of the Board of Trustees.
    “ The President of the Board shall be expected to give sufficient time to carry out the objects of my will, and he shall receive his authority from a two-thirds majority of said Board of Trustees. In all cases involving the sale or purchase of property, and in the expenditure of money, it shall be done only with the assent of a two-thirds majority of the said Board of Trustees; therefore four dissenting voices in said Board would prevent the disposition or expenditure of property or the prosecution of plans not endorsed by at least six of the said Board of Trustees.
    “ The property and estate herein bequeathed is to be held in trust by the said Board of Trustees for the following object, namely: I desire that my entire estate with its accumulations shall be used in establishing and conducting a School for Apprentices and Young Mechanics on plans to be hereafter described by me; or in case of my death before perfecting said plans, the school above named is to be conducted on plans which I have from time to time described to most of the Board of Trustees herein named and who shall approve of final practical plans in keeping therewith.
    “And I do hereby constitute the members of the Board of Trustees aforesaid, executors of this my last will and testament.
    “ In witness whereof” &c.
    The complainants are the widow and children of the testator, and the defendants are the nine persons named in the will as trustees and executors.
    The testator died at Smithville, in Burlington county, seized and possessed of property worth in the neighborhood of half a million dollars, a large portion of which is represented by a controlling interest in the stock of the H. B. Smith Machine Company, a corporation engaged, as its name indicates, in the manufacture of machinery. He died without having, by testamentary or other instrument, described perfected plans for the •school proposed by his will, but in conversations at various times with the several executors or trustees, before his death, he to some extent indicated crude general ideas with reference to the school. The defendants have collected, and stated in the form of a minute, his fragmentary communications to one or the other of them from time to time, which minute, for present purposes, serves to epitomize that which their testimony is claimed to have estabfished as the substance of his conception of the character of the proposed school communicated to them. The minute is this:

      “First. Admit hard-handed country boys, accustomed to labor. Let them work in the shops ten hours a'day and attend school evenings for two years. Then give them one year of instruction in practical English branches, such as would be useful to mechanics. Give them an opportunity to devote their entire time to study during a third year. The expense of boarding and clothing the young men to be paid by the estate, the clothing being uniform. The school to be located in the village of Smithville, Burlington county, New Jersey, and to be operated in connection with the works of the H. B. Smith Machine Company.”

      Mr. Gortlandt Parker, Mr. Samuel H. Grey and Mr. Joseph PL. Gaskill, for the complainants.

      Mr. Frederic W. Stevens and Mr. Mark li. Sooy, for the defendants.
   The Chancellor.

The gift in question is expressly made in trust to persons who are not intended to have a beneficial interest in the property. Merely the legal title goes to them, to be held while the beneficial use is enjoyed by others. We now deal with the beneficial interest, and the main question is whether it is sufficiently bestowed to be enforceable. If.it is not, it will result to the heirs-at-law and next of kin of the testator, for whom the legal title will be deemed to be held.

The complainants claim that it was the intention of the testator. to found a school of limited character, indicated by plans which he should perfect, or, failing-in that, which he had described to most of the trustees, to whom he gave the legal title, and that he failed to perfect the plans and had not in point of fact, prior to the execution of the will, definitely conceived them or described them to most of the trustees, and, if it should be held that he had described them to most of the trustees, such description being testamentary in character and unattended by the formalities required - by statute to validate a will, could not be incorporated in a will by mere reference. And they further contend that if the description of the plans to the trustees be considered, it does not show that a public charity was intended, and is too vague and indefinite to be executed.

Upon the other hand, the defendants insist that the purpose of the testator was to establish a school for apprentices and young mechanics, and that the reference to plans upon which the school was to be conducted was a matter of administrative detail subordinate to and independent of the creation of the charity intended. They also insist that the plans were in esse when the will was made, and were properly incorporated in the will by reference to them, and may be proved. And upon these insistments, they contend that the use contemplated is definitely ascertained and is purely a charitable one, and hence is not invalidated by any indefiniteness in the will as to the individual recipients of the bounty; that the class of recipients is clearly defined, and trustees are provided for and are empowered to establish and conduct the school, and impliedly are clothed with authority to select from the class indicated the individuals who are to benefit from the charity.

It is apparent from this statement of the attitude of the parties, that the first question presented, is, whether the intention of the testator was to qualify the character of the school by a restrictive'scheme so that unless it should be established in compliance with such restriction, it should not exist at all, or whether it was his broad purpose to create a school for apprentices and young mechanics, even though the plans he wished to prescribe for its control, should not be perfected or exist.

This question must be determined from the language of the will. It is impossible to read- that instruipent without being impressed that the testator intended to prescribe the precise, character of the school he meant to found. His disposition to control details is evinced in the particularity of the provisions he makes for a perpetual board of trustees, for the first president of that body and succession to that office, for the compensation of the president and his duties and powers, and for restrictions upon the action of the board of trustees. It is after the exhibition of this disposition that the object of the trust is stated to be the establishment of a school on plans which he should thereafter perfectly describe, or had theretofore imperfectly described. It was to be a school on his plans. The trustees, so far as plans for the school were concerned, were limited in the exercise of their discretion to the approval of practical plans which should accord with the imperfect plans or scheme for a school which he had disclosed to them. He did not mean that they should originate plans — the ideas were to be his — they were merely to execute them.

It appears to me to be plain that though his plans or scheme were intended to have reference largely to matters of administrative detail, they were nevertheless meant by him to be an essential limitation of his gift.

The will itself does not disclose what the plans were to be, but refers to statements made by him before its execution which were susceptible of ascertainment.

Then, the next question which arises is, whether such a reference in a will is unlawful under our statute (Rev. p. 1247 § 22), which requires the will to be in writing, signed by the testator and attested by two witnesses. The question is not whether that which has existence for other purposes than the scheme of the will may be adopted as by reference, as, for instance, the plans upon which Princeton, Yale or Harvard universities are conducted, or to previously-pronounced religious or other doctrines, Attorney-General v. Lawes, 8 Hare 32; Sowers v. Cyrenius, 39 Ohio 29; Attorney-General v. Molland, Younge 562; Potter v. Thornton, 7 R. I. 252; Marsh v. Means, 3 Jur. (N. S.) 790, to recognized schemes for distribution of moneys in charity, Derby v. Derby, 4 R. I. 414; Decamp v. Dobbins, 4 Stew. Eq. 671, but whether the testator, by mere reference to his own language, used to others at previous times, concerning that which was not existing, but was to take life in his will, may, as against his heirs and next of kin, make that language operative in the testamentary disposition of his property.

In the case of Olliffe v. Wells, 130 Mass. 221, a testatrix devised the residue of her estate to A,

“to distribute the same in such manner as in his discretion shall appear bes calculated to carry out wishes which I have expressed to him or may express to him,”

and it could be proved that those wishes required distribution to recognized public charities. Chief-Justice Gray, in writing the opinion of the court, after saying that, in any view of the authorities, it was quite clear that intentions not formed by the testatrix and communicated to A after the making of the will, could not have any effect against her next of kin, and that if the wishes of the testatrix expressed to A were formed and expressed before the execution of the will, the result must be the same, added this language:

It has been held in England, and in other states, that if a person procures an absolute devise or bequest to himself by orally promising the testator that he will convey the property to or hold it for the benefit of third persons, and afterwards refuses to perform his promise, a trust arises out of the confidence reposed in him by the testator, and of his own fraud, which a court of equity will, upon clear and satisfactory proof of the facts, enforce against him at the suit of such third persons. Upon like grounds, it has been held in England that if a testator devises or bequeaths property to his executors upon trust, not defined in the will, but which, as he states in the will, he has communicated to them before its execution, such trusts, if for lawful purposes, may be proved by the admission of the •executors, or by oral evidence, and enforced against them. And in two or three comparatively recent eases it has been held that such trusts may be enforced against the heirs or next of kin of the testator, as well as against the devisee. But these cases appear to us to have overlooked or disregarded a fundamental distinction that where a trust not declared in the will is established by a court of chancery against the devisee, it is by reason of the obligation resting upon the conscience of the devisee, and not as a valid testamentary disposition by the deceased. Where the bequest is outright upon its face, the setting up of a trust, while it diminishes the right of the devisee, does not impair any right of the heirs or next of kin in any aspect of the case; for if the trust were not set up, the whole property would go to the devisee by force of the devise; if the trust set up is a lawful one, it enures to the benefit of the cestui que trust; and if the trust set up is unlawful, the heirs or next of kin take by way of resulting trust. Where the bequest is declared upon its face to be upon such trusts as the testator has otherwise signified to the devisee, it is equally clear that the devisee takes no beneficial interest; and, as between him and the beneficiaries intended, there is as much ground for establishing the trust as if the bequest to him were absolute on its face. But as between the devisee and the heirs or next of kin, the case stands differently. They are not excluded by the will itself. The will, upon its face, showing that the devisee takes the legal title only, and not the beneficial interest, and the trust not being sufficiently defined by the will to take effect, the equitable interest goes, by way of resulting trust, to the heirs or next of kin, as property of the deceased not disposed of by his will. They cannot be deprived of that equitable interest, which accrues to them directly from the deceased, by any conduct of the devisee; nor by any intention of the deceased, unless signified in those forms which the law makes essential to every testamentary disposition. A trust not sufficiently declared on the face of the will cannot therefore be set up by extrinsic evidence to defeat the rights of the heirs-at-law or next of kin. By the statutes of the commonwealth, no will shall be effectual to pass any estate, whether real or personal, nor to change it, or in any way affect the same, unless signed by the testator and attested by three witnesses.”

It is urged against the application of this reasoning 'to the present case, that in Olliffe v. Wells the will did not, upon its face, make it appear that the trust was intended to be charitable, and therefore a favorite of a court of equity, which will be sus-' tained if possible.

The complainants dispute the assumption, implied in this proposition, that a charitable intent appears by the language of the will in question. The purpose stated, they urge, is the establishment of a school of undisclosed character for apprentices and young mechanics, to have some connection with the H. B. Smith Machine Company, as is indicated by the requirement that the stockholders of that company were preferably to be trustees of the school, “that the mutual interests now established may continue,” and they pertinently inquire whether it may not as well be assumed that its object is the procuration of the services of apprentices and young mechanics for that company, as that its object is a charitable disposition to educate that class of persons.

’But if we assume that the defendants’ proposition is correct in fact, is it sound in law ? Suppose a purpose to create a charity-appears — not generally, but of a limited and special character— and the will fails to disclose the limitation, can this court, in defiance of the plain requirement of the statute that the will shall be in writing, add to it verbal expressions of the testator which will supply and define the limitation ? And is the case made stronger by the testator’s direction that the reference shall be had to these expressions ?

I do not perceive any reason which will justify such action. In favor of a charity clearly indicated, the court will so interpret general terms of description in the will creating it as to render the plain purpose capable of enforcement; but where the will fails to indicate what the purpose is, the court will not disregard a statute to supply that which the will omits.

My conclusions determine the case at this point, and it is unnecessary for me to deal with other questions elaborately and ably argued by counsel on both sides.

Here is a trust for a purpose which the testator has failed, legally at least, to define. The court cannot ascertain the purpose, and therefore it cannot execute the trust.

It will be decreed that the legal title is held for the heirs-at-law and next of kin of the testator. -