author: Lewis, Vice-Ordinary.

text:
    In the matter of exceptions to the final account of estate of Sally Ann Riker, deceased.
    [Decided June 21st, 1915.]
    1. Evidence Held to sustain a finding that a z-epresentative of decedent rendered personal services for decedent authorizing his allowance of his claim before proving it at law.
    2. On exceptions to final account of a decedent’s estate, the testimony of decedent’s representative, who had allowed a claim for services rendered by him for decedent as to conversations with decedent, is incompetent.
    3. The testimony of the wife of the representative that decedent agreed to. pay for the services was competent.
    On appeal from the. Passaic county orphans court.
    Mr. Francis Scott, for the appellant.

      Messrs. Schoen & Totten, for the appellee.
   Lewis, Vice-Ordinary.

This is an appeal from an order of the orphans court of Passaic county made on the 10th day of December, 1914, in the matter of exceptions to the final account of the estate of Sally Ann Eiker, deceased.

This court is in accord with the views expressed by the orphans court in sustaining the exception to the bill rendered by Milton Déeths for the collection of rent from 1908 to 1914, and to the bill rendered by Annie M. Westervelt for care and treatment of Sally Ann Biker.

The bill of Milton Deeths, amounting to six hundred and thirty dollars ($630), as shown by voucher No. 97, amended, I think should be allowed, and in this respect the order of the orphans court is reversed.

The exception to this bill is taken on the ground that it is excessive, and that some part of it should not be allowed. No attempt, however, is made, by the evidence offered by the ex-ceptants, to show in what respect it is excessive; nor, indeed, is any evidence attacking the claim offered by them. The testimony produced to sustain it shows beyond peradventure that Sally Ann Biker required and received the services for which the bill is rendered. Charles Deeths and others testified that she required constant attention. It appears that both Milton Deeths and his wife, Elizabeth Deeths, waited continuously upon her during the period named in the voucher. The diary of the deceased was produced and shows the services.

Martin Drew testified to the wish of Miss Biker to change her will, so as to pay Deeths for the services, although she had already made her will and apportioned to him a share of the estate.

The testimony on page 72 of the printed book as to Drew’s conversation with the deceased is as follows:

“Q. Did you ever have a talk with Sally Ann?
“A. Yes.
“Q. About her affairs?
“A. Yes, sir; she had a talk with me about her affairs. She had heard and knew that I wrote a great many wills for people, and she wished me, she wanted me to write her will, I think it was, and she said that she had not made provision for the extra trouble that she would be to some one, to pay for it, and she wanted me to write another, and I says ‘No.’
“Q. Write another what?
“A. I think she asked me to write another will.
“Q. Go ahead.
“A. I said, ‘No.’ She said, ‘Well, my expense is so much more. Some of my heirs have to do so much more for me than the others.’ I said the orphans court would have her expenses and the orphans court would take care of that, if you have extra expenses; that is the way I know it to be done, and the orphans court will attend to that if you do not embody it in the will.”

Under cross-examination by Mr. Totten, Drew positively stated that Miss Eiker had spoken to him about giving something extra to Milton Deeths.

Further corroboration of the desire of the deceased in this respect is given by Gaston Drew. Evidence was produced to show that the charge made by Deeths was reasonable.

In arriving at my conclusion, I have in mind the fact that the evidence given by Milton Deeths as to his conversation with the testatrix must be excluded. Elizabeth Deeths, his wife, however, is a competent witness. She swears that Miss Eiker agreed to pay for the services for which her husband charges, and throws light on the whole situation—she, herself, having been steadily in attendance on Miss Eiker.

In her testimony on this subject, on page 66 of the printed book, we find the following:

“Q. Did Sally Ann Biker agree to pay for the services that were rendered her?
“A. Yes.
“Q. How did she agree?
“A. She wanted my husband to make out a hill. She said he had taken her in on his floor, which none of the rest would do for her; that if he had not done that she would have had to go to an institution, and she said she wanted him to make out a bill and get paid for what he had done for her.
“Mr. Totten—I object to this upon the ground that it is hearsay.
“The Court—I will allow it.
“Q. Did she say that more than once.
“A. Yes.
“Q. Did she say that to you.
“A. Yes.
“Q. Did she say that to Mr. Deeths in your presence?
“A. Yes.
'“Q. Did she say it in the presence of anybody else?
“A. Yes; Mrs. Stagg.
“Q. Did she say it in the presence of anybody else?
“A. Yes.
“Q. Who?
“A. My brother-in-law.
“Q. Who is that?
“A. Mr. Drew.
“Q. Martin Drew?
“A. Yes, sir. Tuesday, as she died Sunday, she made me promise that I would see that Mr. Deeths made out a bill for what he had done for her.”

I do not find, as urged by the proctor of the appellee, that the Egarton Case, 77 N. J. Eq. 419, is dispositive in this issue. In the Egarton Case it is held that an executor’s charge against the estate of his testator for services during the lifetime of the testator will not be allowed, where there is not, at least, an intimation in the evidence that, in such testator’s lifetime, it was expected or intended that such charge would be made. There appears to be abundant evidence showing -that Miss Rilcer intended and expected Deeths to make some charge.

There is no doubt about it that the- court should scrutinize with the greatest of care transactions in which the representative as an individual deals with himself in his representative capacity. It would, undoubtedly, have been much more satisfactory if Deeths had proved his claim, at law, before allowing it; but this was not done, and the ease has been heard by the orphans court; the testimony has been given; it is all before me on this appeal, and a disposition must be now made of the claim. As heretofore stated, the evidence seems to be sufficient to sustain the charge for services made b]’ Milton Deeths.

A decree may be entered in accordance with the views above expressed.


source: Caselaw Access Project

author: Baokes, Vice-Ordinary.

license: Public Domain

text:
    In re the estate of Nicholas W. Craft, deceased.
    [Submitted March 22d, 1915.
    Decided June 22d, 1915.]
    1. The burden of overcoming the presumption of undue influence, if any, arising from the relations of the chief beneficiary to the testator, was successfully met where the beneficiary and his wife, with whom the testator lived, emphatically denied ever having knowledge of the will, or that, in conversation with him, they ever spoke of a will.
    2. Kindly offices and attentions of the beneficiary and his family rendered to an aged testator who made his home with them, were legitimate and not undue influence.
    3. In determining undue influence, if any, exercised upon.a testator, the point of time to be considered is that at which the testator executed the writing in dispute.

      4. The legal presumption is that a testator was sane when he executed his will.
    5. In a will contest on the ground of the testator’s incapacity to make a will, evidence Held not sufficient to overcome the presumption of sanity.
    6. A testator must be possessed of a sound and disposing mind and memory, and, where his mind and memory are sufficiently sound to enable him to know and to understand the transaction, to recollect the property about to be bequeathed and the objects of his bounty, he has “testamentary capacity.”
    7. In a will contest on the ground of undue influence, the caveatrix had the burden of proof.
    8. In a will contest evidence Held to show that when he executed the writing propounded, testator possessed testamentary capacity.

      Mr. 11. Burdett Herr and Mr. William 0. Qebhardi, for the appellant.

      Mr. Willard 0. Parher and Mr. Ilcurry L. Stout, for the appellee.
   Baokes, Vice-Ordinary.

This appeal is from a decree of the orphans court of Hunter-don county, denying probate of the last will and testament of Nicholas W. Craft, deceased. The testator died July 25th, 1913, aged eighty-five years. More' than two years before, on May 29th, 1911, he executed his will, by which he gave his estate of less than $10,000 to James T. Hoffman, a nephew by marriage, except $25, which he gave to one James W. Farley. The testator’s nearest relatives were a niece—Mrs. Boíles, the caveatrix— and two nephews, one of whom lived in the State of New York and the other in the west. Probate was contested on the grounds of incompetence and undue influence. The record is not favored with an opinion of the judge who heard the cause, but it appears by the decree that the court’s judgment was rested upon the former and that the latter ground was not considered necessary to be passed upon. The transcript of the testimony is very imperfect, due, as counsel says, to the stenographer, who was not proficient in this class of work. It is apparent that in many instances the witnesses are not correctly reported and that questions and answers were omitted, and therefore to the task of reviewing the judgment is added the further difficulty of ascertaining the true meaning of the evidence, which can only be gathered by a consideration of all that each witness testified to, and not from the sense of any particular question and answer.

I premise these remarks with the statement that the evidence discloses no exertion of undue influence over the testator, and that if the relations of the chief beneficiary to him were of such a character as in the absence of explanation, to raise a presumption of such influence, then the burden of overcoming it has been successfully met. Both the beneficiary and his wife, with whom the testator lived, emphatically deny ever having knowledge of the will, or that they in conversation with him ever spoke of one, and the history of the case bears out their denials. Sparks’ Case, 63 N. J. Eq. 242.

And I may at this juncture pause to add that to me the will seems a just and natural one. For eight years and more the testator made his home with the beneficiary. He then went to live with the latter’s mother, where he remained for three years until her death, returning at his own earnest solicitation to the beneficiary a month before the will was executed, where, despite importunity of others to live elsewhere, he said he wanted to spend his remaining days, and where he stayed until his death. He spoke of this home as the home of homes and that James (the beneficiary) had been a boy to him. There he was well cared for and happy, and undoubtedly appreciated the kindly treatment and ministrations of the beneficiary and of his family. Then why should not he, who afforded comfort and solace to this old gentleman in his declining years, be the most natural object of his solicitude and bounty? His nephews were probably as strangers to him. It does not appear that they ever gave him any attention. His niece lived in a distant city, calling occasionally to transact some small business affairs, but more than this does not appear, and for these services he expected to account. Such kindly offices as the beneficiary and his family rendered the deceased have repeatedly been held to be legitimate influences and not undue.

We turn, then, to an examination of the testimony upon which the orphans court pronounced the testator incompetent to make a will, and we may properly start with these undisputed facts: Although the testator had reached the great age of eighty-five, he was up and about until two weeks before his death. , He attended to all of his personal wants; dressed and undressed himself unaided; ate his meals with regularity with the other members of the family, and unassisted; visited his neighbors alone; visited, unaccompanied, the grave of a friend who had recently died, and in general deported himself becomingly in and about the household of which he was a member. He was ruptured and wore a truss, which he usually adjusted himself. He suffered from cancer sores, which he personally treated under the direction of his physician. This state of bodily and mental vigor stamps the testator as remarkably rugged for one of his years. The cancer from which he suffered periodically produced an accumulation of poisonous secretion in the system, which resulted in mental depression and a clouding of the mind, but these disturbances were merely transitoiy, for, when the secretions were freed and the spell passed, the faculties were restored and the mind cleared up. His physician says that after the attacks 1ns mind became clear and he understood things as well as formerly. He suffered one of these spells in the winter of 1910-11 for about six weeks, ending some time in January. He had another slight attack lasting two days in April, about a month before the will was drawn. From this he did not suffer seriously, as he was up and around, and it appears that the spell did not attract the attention of the family. Judging from the symptoms and effect of the disorder, as given by the physician, the testator was not its victim on the day the will was drawn, for he says that under its influence his patient could not understand what was being told to him, could not take medicine, could not write or walk, and could not talk coherently. All of these tilings the testator did on that day. I have before me the original will, to which his signature is plain and as strong as one would expect to find of a man of his years. On the morning of the day the will was drawn, he walked three miles to the home of James C. Farley to seek his aid in the adjustment of some financial matters. At the request of the testator, a scrivener was sent for, who, after preparing a document, of which I will speak later, was requested to draw a will, and upon being asked what disposition he desired to make of his property, the testator said that he wanted it to go to Janies (meaning the beneficiary), and being twice asked whether he had .any special bequests to make, replied in the negative. No one was in the room but the testator and the scrivener when the directions were given for the will and while it was being drafted. The scrivener says he read the will over five times and then once, but whether he read it to himself or aloud to the testator, is not made clear. A witness was called into the room and to him, in the presence of the scrivener, the testator declared the document to be his last will, and asked that the two subscribe the same as witnesses. The will was executed with all of the ceremony required by the statute, and at the instance of the testator the scrivener took it with him. No mention of it was made thereafter until it was read at the grave two years and more afterwards. The will was initiated solely by the testator. It appears that when the scrivener had finished his other affairs, the testator stated to him that he had some private business he desired to transact, and thereupon the two were left alone, and then came the directions which are embodied in the document in dispute. The first intimation of the testator’s desire to make a will was given by him to the scrivener when they were in private. The proofs are satisfactory that no previous suggestions to this end had been made by anyone. The scrivener’s conduct is above suspicion. He was disinterested—is a gentleman of high repute in the community, whose probity and integrity axe unassailed by counsel, who, on the argument, were interrogated as to his character. I attach some importance to the standing of the scrivener upon the question of capacity, because of the improbability of one of his type drawing a document of such solemnity for a person not competent; and considerable to the undisputed fact of the will having emanated solely from the testator. That the will is the offspring of the testator’s mind is emphasized by its frame. It will be observed that in the preliminary part of the second paragraph the estate is given to James T. Hoffman, and, parenthetically, “by his paying to my friend James W. Earley the sum of $25,” and then the residue is again disposed of. This peculiar collocation is accounted for by ' the scrivener in this manner: He says that while in the act of drawing the will, and upon reaching the point disposing of the estate to'James T. Hoffman, the testator interposed, saying that he would like to have $25 go to James W. Farley. The latter had just before consented to transact some business for the testator, and it is a fair assumption that this provision was made for his compensation. Hp to this point in the testimony there is little room for differences of opinion.

The other evidence in the case bearing upon the conduct and mental condition of the testator on the day of the execution of the will is not in serious conflict, but, upon its significance, and the weight to be given to it, much depends in solving the issue. [Here follows a discussion of the evidence.]

In controversies of this character, the point of time to be considered is that at which the testator executed the writing in dispute. The legal presumption is that he then was sane, and I do not find in the record, bearing upon that occasion, evidence of a character to disturb this presumption, nor to lead me to conclude other than that the testator at that time had intellect and capacity sufficient to comprehend the nature of the transaction he was engaged in, and all of the essential concomitants. His mind and memory were equal to the test as defined and illustrated by Mr. Justice Washington, in Stevens v. Van Cleve, 4 Wash. C. C. 267, and adopted as the. settled construction of “testamentary capacity” in this state, as follows:

“He (the testator) must, in the language of the law, be possessed of a sound and disposing mind and memory. He must have memory. A man in whom this faculty is totally extinguished, cannot be said to possess understanding to any degree whatever, or for any purpose. But his memory may be very imperfect; it may be greatly impaired by age or disease; he may not be able, atall times, to recollect the names, the persons, or the families, of those with whom he had been intimately acquainted; may at times ask idle questions, and repeat those which had before been asked and answered; and yet his understanding may be sufficiently sound for many of the ordinary transactions of life. He may not have sufficient strength of memory and vigor of intellect to make and to digest all the parts of a contract, and yet be competent to direct the distribution of his property by will. This is a subject which he may possibly have often thought of; and there is probably no person who has not arranged such a disposition in his mind, before he committed it to writing. The question is not so much what was the degree of memory possessed by the testator as this, Had he a disposing memory? Was he capable of recollecting the property he was about to bequeath, the manner of distributing it, and the objects of his bounty? To sum up the whole in the most simple and intelligible form, were his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time when he executed his will?”

Much of the record deals with the evidence of the testator’s physicians, neighbors and friends, who testify to facts evincing the quality of his mind and memory before and after the making of the will. I will only refer to that which relates to the latter period. His three physicians are united in their opinion that he had mental capacity. Their professional treatment; of him was direct; they prescribed for and advised him personally, and he followed their instructions. The physician in regular attendance stated that he was a great man to. have him in his room and talk to; that he was always glad to see him and knew him; that the testator was a great Mason and often asked about a Mr. Moore and other members of the fraternity whom he knew years ago. .His neighbors testified that he conversed with them about being in New York; about mutual acquaintances, farming, gathering the crops, sowing, weather conditions,' manner of farming, and things of interest in the neighborhood. Of one, who called once or twice a week, he would always inquire as to the condition of her son’s health, who was ill with rheumatism. With another, he tried to negotiate’ the sale of the Wyckoff Hoffman $1,500 second mortgage, and with him he had frequent conversation. To this witness he told that his mortgage was to have been a first mortgage, but that he had been duped. He also tried to sell it to the beneficiary. A lady visitor at the beneficiary’s house testified that she read to the testator, and that he would make comments; that she talked to him and he answered rationally; that he spoke of having lived at Mrs. Hoffman’s and that she conversed with him by the half-hour. Another witness, a plumber, who did work at the beneficiary’s house during June, July and August, 1911, and who took his noonday meal there, said that the testator’s conversation at the dinner table was usually between him and members of the family, and that he had quite some conversation with a man by the name of Apgar over old matters; that the testator was usually around where he was working, watching the operations. All of the witnesses for the proponent say that he was intelligent, always knew them, conversed coherently, and that his mind was clear for a man of his age, and nearly all—some twenty in number—gave as their opinion that the testator was competent to make a will, and many cite facts upon which their opinion is based.

As against this array, the caveator produced a number of witnesses whose evidence I will analyze in detail. [Here follows a recital of their evidence.]

The divergent views of the opinion-witnesses as to the mental capacity of thé testator is, in some instances, doubilessly due to the fluctuations in physical health and the resultant temporary effect upon his mind at the times they observed him, and of which they speak; and also to their failure to distinguish between his’condition before and after the stroke of paralysis he suffered in January of 1912, after which his mind was not as keen as before. At most, evidence of this character is of very little help, but if the question pressing were to be solved by it alone, I would unhesitatingly affirm a decided preponderance in favor of sanity. I have given it the consideration to which it is entitled.

This extended and detailed review of the testimony leads to the conclusion that the caveatrix has not sustained the burden of proof cast upon her, and to the result that the testator was competent to make a will. A persuasive element in arriving at this decision, uppermost in my'mind, is the conviction that one who was able to respond both physically and mentally to all other callings in life ordinarily expected of one so greatly advanced in years as the testator was, could not, in reason, be lacking in that limited degree of intelligence and meagre capacity required by law for the exercise of this simple function.

The decree of the orphans court will be reversed and the will admitted to probate. " Costs and counsel fee will be ordered paid out of the estate.


author: Backes, Vice-Ordinary.

text:
    Jennie E. P. Roberts, individually and as executrix of Sarah M. Sisson, deceased, appellant, v. The Comptroller of the Treasury of the State of New Jersey, respondent.
    [Submitted June 21st, 1915.
    Decided June 24th, 1915.]

      P. L. 1914 V• 267 exempts from the transfer tax property to the amount of $5,000 passing to a child, or lineal descendant, and further provides that the same exemption shall be allowed to any child to whom the decedent for not less than ten years prior to the transfer stood in the mutually acknowledged relation of a parent, provided that such relationship began at or before the child’s fifteenth birthday and was continuous for at least ten years thereafter." Appellant, after the death of her parents, and when only four years old, became a member of the family of her aunt, with whom she lived continuously until the death of the aunt without children, over forty years later. The devotion and affection toward each other were those ordinarily existing between mother and daughter, and she rendered such filial duties and services as are usually expected of children.—Held, that she was entitled to the statutory exemption.

      Mr. John L. Keller, for the petitioner.

      Mr. Herbert Boggs, assistant attorney-general, for the state.
   Backes, Vice-Ordinary.

This cause is before me on a petition and order to show cause why a tax assessed by the comptroller of the treasury upon an estate of the value of $6,815 bequeathed to the appellant by her childless aunt, Sarah M. Sisson, deceased, should not be reduced. The tax was levied at the rate of five per centum and amounts to $340.75.

The “Transfer of Property” Tax act, as amended by chapter 151 of the laws of 1914 (P. L. 1914 p. 267), exempts from its operation property to the amount of $5,000 passing to a child or lineal descendant, and further provides that—■

“The same amount of tax shall be imposed upon and the same exemption up to five thousand dollars allowed to any child to whom such decedent for not less than ten years prior to such transfer stood in the mutually acknowledged relation of a parent; provided, however, such relationship began at or before the child’s fifteenth birthday, and was continuous for at least ten years thereafter.”

The appellant claims to be within the class thus entitled to exemption. She was a year old when her' mother died, and shortly afterwards her father passed away. When she was four years old—in 1872—she became a member of the decedent’s family,' with whom she lived continuously until the latter- died in 1915, aged eighty-five years. She was reared by the decedent, and in turn rendered to her aunt and in her household such filial duties and services usually expected of children. The attachment between the two, and the devotion and affection towards each other, were those ordinarily existing between mother and daughter. Their intercourse was exquisitely that of parent and child.

The exemption feature of our “Transfer of Property” Tax act above quoted was adopted from the New York statute— Consol. L. 1909 ch. 60 § 221 (5 Birdseye’s Cumming & Gilbert’s 5987), and the construction given to its prototype by the court of appeals of that state, I adopt as dispositive of the question at issue. In the matter of Davis, 184 N. Y. 299, a ease almost identical with the present one, Chief-Justice Cullen said:

“In some courts it was held that this provision comprehended only the case of illegitimate children. The proper construction of the statute was settled by this court in Matter of Beach, 154 N. Y. 242, where Chief Judge Andrews, writing the unanimous decision of the court, said: ‘The clause, we think, was intended to have a broader scope; to include, among others, those cases, not infrequent, where a person without offspring, needing the care and affection of someone willing to assume the position of a child, takes, without formal adoption, a friend-or relative into his household, standing to such person in loco pa/rentis, or as a parent, and receives in return filial affection and sendee.’ ”

See also Matter of Butler, 58 Hun 400; Matter of Stillwell, 34 N. Y. Supp. 1123; Matter of Nichols, 36 N. Y. Supp. 538; McElroy Trans. Tax L. (2d ed.) 272, 287. Manifestly, the appellant bore to the decedent the relation of a child to whom the latter stood in the mutually acknowledged relation of a parent, within the meaning of the statute. She is entitled to the exemption, and the assessment will be reduced accordingly.


text:
    In the matter of the estate of Andrew D. Peterson, deceased.
    [Submitted July 13th, 1915.
    Decided September 28th, 1915.]
    1. Where a testator bequeaths his estate upon an event which does not happen, and makes no other disposition thereof, the legacy lapses and the estate passes to those who were entitled under the statute of distribution at the time of the death of the testator.
    2. Where a testator bequeathed his estate to his wife for life, and over, upon a contingency which did not happen-, and as to the remainder died intestate, his widow’s personal representative is entitled to her share of the remainder under the statute of distribution.
    On appeal from the Somerset county orphans court.

      Mr. Robert Newton Crane, for the appellant.

      Mr. Harrison P. Lindabury, for the appellees.
   Backes, Vice-Ordinary.

Andrew D. Peterson; deceased, left a will in which, after directing his debts and funeral expenses to be paid, he provided as follows:

“2nd. All the rest and residue of my estate of whatsoever kind it may be or where the same may be at the time of my decease, I give, devise and bequeath to my said executors hereafter named in trust, to hold the same and to keep the same invested in some safe and sure investment and the interest accrueing on the same to be paid to my beloved wife, Anna, during her natural life or widowhood, but if my said beloved wife Anna should marry, then in that case I then order my said executors to divide all of my said estate between my said wife aforesaid and my two children to be equally divided between them share and share alike, and I hereby order my said executors to pay over to each of them, my said wife and two children, an equal one-third share or part of my said estate so held by them, to them, my said wife and children, their heirs and assigns.”

The estate consists entirely of personal property. Ills widow and two daughters, Lizzie D. Horton and Addie C. Handville, survived. Mrs. Handville died in her mother’s lifetime, on May 7th, 1896, leaving her surviving two sons, Francis W. and Robert R., and her husband, Joseph C. Handville. The widow of the testator recently died without having remarried. The orphans court ordered the estate distributed to Lizzie D. Horton, one-half, and the remaining half in equal shares to the two sons of the deceased daughter, Mrs. Handville. The latter half the husband of Mrs. Handville claims and he appeals.

Primarily, the beneficial interest in the estate went to the testator’s widow for life. The gift over, upon the widow again marrying, was contingent. Gifford, Administrator, v. Thorn, 9 N. J. Eq. 702; Security Trust Co. v. Lovett, 78 N. J. Eq. 445. The event upon which this was to vest never came to pass, and the legacy lapsed. The will makes no disposition of the lapsed estate, and, consequently, the testator to that extent died intestate, and it passed to those who were entitled under our statute of distribution at the time of his death. As to this, the law is settled. In Mulford v. Mulford, 42 N. J. Eq. 68, Chancellor Runyon held that “where the testator gives the income of a portion of his estate to A. for life, but does not dispose of the corpus in a certain contingency, it will, in case the contingency occurs, go to the testator’s heirs, if realty, or next of kin, if personalty, who were such at his death.” Voorhees v Singer, 73 N. J. Eq. 532. The doctrine laid down in Holcomb v. Lake, 24 N. J. Law 686, cited by the appellees as being opposed to this view, is in entire harmony with it.

As the law stood at the time of the death of the testator (1889), the widow was entitled to one-third, and the two daughters in equal portions to the remaining two-thirds of his personal estate. The bequest to the testator’s widow for life did not deprive her representative of her interest in her husband’s estate, of which he died intestate. Nelson v. Nelson, 57 N. J. Eq. 118. Upon the death of the daughter Mrs. Handville, as the law then stood, her husband, the appellant, became entitled to her personal estate.

The result is that the decree of the orphans court will be reversed, with directions to enter a decree distributing the estate, thus, one-third to the personal representative of the widow of the testator; one-third to Lizzie D. Horton, and the remaining one-third to Joseph C. Handville.

If there is no personal representative of the widow, and there are no debts, the decree may divide her share by giving one-half to the daughter Lizzie D. Horton, and the remaining half to. the two sons of the deceased daughter, in equal shares. In this, the appellant has no interest, as his children take as next of kin of their grandmother. If there are debts, the personal representative of the widow must be made party to this appeal to perfect the record.

The appellant is entitled to costs.


author: Walker, Chancellor.

text:
    Thomas McMichael, complainant-appellant, v. John M. Barefoot et al., defendants-respondents.
    [Argued June 22d, 1915.
    Decided September 29th, 1915.]
    After a defendant against whom a judgment has been recovered applies to the court of first instance for a new trial, which is refused, and then commences a suit at law against the judgment creditor for damages for fraud and conspiracy in procuring such judgment and is nonsuited, and applies to vacate the nonsuit, which application is denied, he cannot then obtain an injunction from the court of chancery restraining the judgment creditor from further proceeding on the judgment, because he has made an election of remedies and must abide the result; and, being thus without remedy in the court of chancery, his appeal from an order of that court, dissolving such an injunction, is utterly devoid of merit, and while he may exercise his right to prosecute the appeal, he cannot obtain a stay of proceedings, pendente Ute, because he has no arguable case, his appeal being sham and frivolous and liable to dismissal for that reason.

      On motion to restrain the collection of judgments at law pending appeal from an order in chancery dissolving such an injunction.

      Mr. I-Ierbart A. Brake, for the complainant-appellant.

      Messrs. Scovel & Harding, for the defendants-respondents.
   The opinion of the court was delivered by

Walker, Chancellor.

The bill in this case was filed to perpetually restrain the defendants from proceeding to collect three several judgments recovered by them respectively in the Camden district court upon the ground that they were obtained by fraud and conspiracy, or for a new trial of the issues. Upon filing the bill an order was made upon the defendants to show cause why an injunction should not be issued, with an ad interim stay, and, upon the hearing, an order was made for the issuance of an injunction pendente lite, upon condition that the complainant should execute bonds with adequate security to each of the defendants conditioned for the payment of their several judgments in the event of the ultimate dismissal of the bill of complaint, and further, that unless a certain suit at law instituted in the Camden circuit court for damages for the alleged conspiracy be brought to trial by the complainant without unnecessary delay, such failure might be made the basis of a motion to dissolve the injunction.

The complainant (the judgment debtor) applied for new trials of the cases in the Camden district court, which court denied the application. The suit for damages for fraud and conspiracy in which the complainant hoped to recover judgment against the defendants and set it off against their judgments, was nonsuited by the judge of the Camden circuit court, and a motion to vacate the nonsuit was subsequently denied. Application was then made in the court of chancery to dissolve the injunction, and Vice-Chancellor Learning, in granting the motion, said, among other things:

“The difficulty that confronts me is that the fact is indisputable that in the law court complainant herein was non-suited; the law court, in the exercise of what this court must consider a sound judgment, nonsuited him. An application to be relieved from that nonsuit, which has been made to the law court, in behalf of complainant herein, has been refused, for reasons that were by that court deemed adequate. This court is now asked by complainant to sit in judgment over the law court and to determine that it has not done its duty; to determine that the law court either should not have allowed the nonsuit, or should have relieved against it.

“The complainant in this suit has twice had his-day in a law court; first in defence of the suits which were brought against him in the Camden city district court, where he was defeated in a trial before a jury, and next in the circuit court, in his action for conspiracy, where he was nonsuited. This does not take into account the application to the district court for relief against the judgments, or the application to the circuit court for relief against the nonsuit.”

After order entered in chancery dissolving the injunction the complainant appealed to this court, and moved in the court below for a stay of its order dissolving the injunction, pending appeal. The court of chancery granted a stay until application could be made to this court for that purpose. And now such application-has been made.

The case of Stein v. Cuff, 76 N. J. Eq. 277, in this court, is dispositive of the present application. It was there held that—

“As a general rule equity will entertain a bill to restrain the enforcement of a judgment and for a new trial in an action at law, only when the grounds on which the new trial is sought are not cognizable by the court in which the judgment was recovered.

“A party in an action at law, who applies therein for a new trial on grounds cognizable by a court at law, and who is defeated, cannot afterward be heard om.the same matter in a court of equity.”

It was conceded by counsel who argued this motion for the appellant that the grounds of his bill for relief were equally cognizable in the law courts where he urged them unsuccessfully. His complaint is that his motions in those courts were wrongly decided there; hence his application in equity.

The complainant by applying to the law courts, first, to the district court for new trials of the suits there, and secondly, to the circuit court to vacate the nonsuit, made an election of remedies and must abide the result. See Coxe v. Robbins, 9 N. J. Law 384; Freeman v. Staats, 8 N. J. Eq. 814; Way v. Bragaw, 16 N. J. Eq. 213; Browning’s Executor v. Rittenhouse, 40 N. J. Law 230. In Roarke v. Roarke, 77 N. J. Eq. 181, it Avas held (at p. 184) that in case an election be made in favor of an action at law, proceeded in to a finality before application made to the'court of chancery, the complainant must be held to have elected to stand upon the legal remedy.

The theory of complainant’s present motion to continue the stay in this case is, that he is entitled as of right to be protected from the collection of the defendants’ judgments, pending his appeal.

It is true that in Pennsylvania Railroad Co. v. National Docks Railway Co., 54 N. J. Eq. 647, it Avas held by Chief-Justice Beasley, speaking for this court, that—

“The effect of filing an appeal to this court is to prevent the decree in the court of chancery from destroying or impairing the subject of the appeal, or being in any degree used for that purpose.”

But that did not establish a hard and fast rule, to the effect that a defeated litigant, whose action or defence is utterly devoid of merit, may, by .exercising his right to appeal, obtain a stay of proceedings for the mere asking. The party appealing, avIio seeks a stay pending appeal, must have at least an arguable case; and, if he has not, his appeal is sham and frivolous, and may be dismissed for that reason. This doctrine is Avell stated in Johnson v. St. Paul C. R. Co., 68 Minn. 408, thus:

“An appellate court has the inherent power to dismiss an appeal which is manifestly and palpably frivolous and without merit. This poAver is necessary in order to prevent the court itself from being imposed upon, and the administration of justice being trifled with and perverted for mere purposes of delay.”

This court, ou practice motions which were not reported, frequently dismissed appeals and writs of error as sham and frivolous.

The motion for a stay pending appeal must be denied.


author: Gummere, Chiee-Justice.

text:
    David F. Plahn, administrator, &c., respondent, v. Charles Givernaud et al., appellants.
    [Argued June 17th, 1915.
    Decided November 15th, 1915.]
    In a suit by a divorced wife to set aside the decree of divorce and restore her marital status, so that she might enforce against her deceased husband’s estate a claim which otherwise would be barred by limitations, the bill was dismissed on January 9th, 1913. Act May 15th, 1907 (P. L. 1907 p. 452), which was then in force, required appeals from final decrees of the court of chancery to be taken within one year, and no appeal was so taken within such time. Act March 30th, 1914 (P. L. 1914 P-133), provided that where final decree had theretofore been filed, or might thereafter be filed, the chancellor might, in his discretion, by an order made not more than six months after the time limited for taking an appeal, extend the time for appealing.—Held, that the later act is retroactive in its operation, and that the decree in the present case is within its purview.—Held, further, that as the decree conclusively settled the right of the defendants to hold the property of their decedent’s estate free from the claim of the wife, and therefore established a property right which became vested by the expiration of the time within which an appeal might have been taken, this right could not thereafter be impaired by legislative enactment, and that the act of 1914 so far as it operated to revive the right of appeal after it had expired and property rights had become vested, is unconstitutional.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson, whose opinion is reported in 81 N. J. Eq. &6.

      Mr. Gilbert Collins and Mr. Dougal Herr, for the appellants.

      Mr. J. W. Rufus Besson and Mr. Maximilian T. Rosenberg, fox the respondent.
   The opinion of the court was delivered by

Gummere, Chiee-Justice.

In May, 1910, Jeanne M. J. Givernaud, a resident of the Republic of France, filed her bill in this cause, seeking thereby to have set aside and declared void, upon the ground of fraud practiced upon the court of chancery, a decree entered in that court in February, 1872, divorcing her from her husband, Barthelemy L. Givernaud, and to have her marital status restored, so that she might enforce against his estate (he having died in January, 1908) a claim of some $9,000, with interest, which was founded upon a -judgment recovered by her against her then husband in one of the French courts in the year 1866. The defendants having answered, the cause having come on to be heard, and the merits of the case having been adjudged in favor of the defendants, a decree was entered dismissing the bill upon the 9th day of January, 1913. More than a year thereafter, and on January 19th, 1914, Mrs. Givernaud died, without having appealed from the decree. In June of that year her administrator obtained an order from the court of chancery substituting him as the complainant in the cause, and a further order authorizing him to take an appeal from the decree on or before the 8th day of July then next. The present appeal is taken from this latter order.

At the time of the making of the final decree in this cause the complainant was required, in.case she desired to appeal therefrom, to take such appeal within one year after such decree was made. P. L. 1907 p. 452. By force of this statutory provision, therefore, her right to appeal was determined on the 8th day of January, 1914, eleven days before her death. On the 30th day of March, 1914, the legislature amended the act of 1907 by adding thereto the following:

“Provided that in all cases where final decree has heretofore been filed, or may hereafter be filed, the chancellor may in his discretion, by order made not more than six months after the time herein above limited for taking an appeal, extend the time of the appellant for taking Ms appeal for a period not exceeding six months from the expiration of the time so limited.”

It was pursuant to this enactment that the chancellor made the order appealed from, and the contention of the appellants before us is that the chancellor’s order was improvidently made, first, because the statute is not retroactive, and second, because, if it is to be given such effect, it violates vested rights of the defendants and is, therefore, unconstitutional.

We think the first of these contentions is unsound. We admit, of course, the soundness of the rule that statutes are to be so construed as to give them prospective operation only, if such construction is reasonably possible, but are clear that this rule has no application to the present enactment, because the legislative intent that the provision should have retroactive operation is plainly manifested by the use of the words “in all cases where final decree has heretofore been filed, or may hereafter be filed.” To hold otherwise would be to eliminate the words “all” and “heretofore,” the latter of which is used in contrast with the word “hereafter” which follows it in the clause.

This brings us to a consideration of the second ground of attack upon the order, namely, that the statute is void, so far as the present defendants are concerned, as interfering with vested rights. It is to be remembered that the primary purpose sought to be accomplished by the bill in the cause was to place Mrs. Givernaud in such a position (by restoring her status as the wife of her former husband) that she could enforce against his estate a claim which was otherwise long since barred by the statute of limitations. The effect of the final decree, therefore, unless reversed on appeal, was to conclusively settle the right of the defendants to hold the property of their decedent’s estate free from the claim which Mrs. Givernaud sought to enforce against it; and this right became absolutely vested on the 9th day of January, 1914, when the time within which the complainant was entitled to appeal expired under the statute then existing. The decree having established a property right, and that right having become vested by the expiration of the time within which an appeal might have been taken, it could not thereafter be impaired by legislative enactment,' This is the doctrine declared by the court of appeals of New York in Germania Savings Bank v. Suspension Bridge, 159 N. Y. 362, and by the supreme court of Maine in Atkinson v. Dunlap, 50 Me. 111. It is fully supported by the reasoning of Chief-Justice Beaslejr in the opinion delivered by Mm in our supreme court in Ryder v. Wilson’s Executors, 41 N. J. Law 10, and by that of: Mr. Justice Dixon, speaking for this court, in the case of Moore v. State, 43 N. J. Law 203, and meets with our entire approval. We are not to be understood as denjdng the power of the legislature to extend the time to appeal before that right has expired by limitation. What we do determine is that a statute like that wliich we have been discussing is unconstitutional, so far as it operates to revive a right of appeal after it has expired under then existing law, and property rights have thereby become vested.

The order appealed from must be reversed.

For affirmance—None.

For reversal—The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kaliscii, Black, Vredenburgh, White, Terhune, IIeppeni-ieimer, Williams, Taylor—15.


author: Gummere, Chief-Justice.

text:
    Alva M. Roe, complainant, v. Oradell Farms Dairy Company, defendant.
    [Submitted July 6th, 1915.
    Decided November 15th, 1915.]
    1. The purchase of stock in a corporation induced by fraudulent representations of the corporation’s agent is not a void transaction, but is merely voidable at the option of the purchaser, and until he exercises such option he is a stockholder of the corporation.

      2. The right of such purchaser to avoid the transaction, and recover back the purchase price of the stock, cannot be exercised after the corporation has been adjudged to be insolvent, and a receiver has been appointed to wind up its affairs and distribute its assets.
    On appeal from an order of the court of chancery.

      Mr. Joseph Beck Tyler, for the appellant.

      Mr. Leonard A. Duncan> for the respondent.
   The opinion of the court was delivered by

Gummere, Chief-Justice.

The complainant having filed his bill against the defendant company, alleging it to be insolvent, and praying the appointment of a receiver to wind tip its affairs, and make distribution of its assets, the court of chancery, after hearing, held the allegation to be sustained, decreed the company to be insolvent, and appointed a receiver in accordance with the prayer of the bill. In due course the receiver gave notice to the various creditors to present to him their claims against the insolvent corporation; and in response to this notice he received, among others, claims from various persons holding stock of the company, each of whom asserted that he or she had been induced to purchase it by reason of false and fraudulent representations of the financial status of the company, made to them by one Ames, who was the company’s duly-accredited agent for the sale of its stock; that they respectively had not discovered the untruthfulness of the statements made to them until a short time prior to the institution of the insolvency proceedings; that by their several notices to the receiver they repudiated their respective purchases of the stock, and claimed that by such rescission they had become creditors of the corporation, and were entitled to be repaid out of its assets in the hands of the receiver the moneys that they had been fraudulently induced to expend in the purchase of the stock. The receiver refused to recognize the validity of any of these claims; and upon appeal from his decision to the court of chancery his refusal was approved. One of the claimants, Melissa Humphries, now appeals to this court from the order affirming the receiver’s action.

Looking at this transaction in the light most favorable to Mrs. Humphries, the purchase of this stock, assuming it to have been induced by fraudulent representations on the part of the agent of the defendant company, was not a void transaction, but merely voidable at the option of the purchaser. Until she exercised that option (assuming that she had a right to do so) she was a stockholder of the corporation. Her right to participate as a creditor in the distribution of the assets of the defendant company depends, therefore, upon whether a stockholder who has been induced by fraud to become a member of the corporation, and who does not discover the fraud until just before the institution of proceedings for the winding up of the corporation as insolvent can, after the appointment of a receiver, exercise her option, repudiate her purchase of the stock, and thereby change her position as a stockholder in, to that of a creditor of, the corporation to the extent of the purchase-money paid by her. We think that the right of a stockholder to so change her status (if such right exists) must be exercised while the corporation is a going concern, presumably solvent, and able to meet its engagements. So long as this is the status of the corporation, it is a matter of no concern to its creditors whether it repays to the repudiating stockholder the money advanced by her for the purchase of her stock or not. But when it ceases to be able to pay its creditors in full, has been adjuged to be insolvent, and a receiver has been appointed, the situation is vastly different. The assets of the corporation, instead of being held by it as-the representative of the stockholders, have become vested in the receiver as trustee, primarily, for creditors, and secondly, for stockholders. The eighty-sixth section of the Corporation act (Comp. Stat. p. 1652) requires the receiver at the close of the winding up proceedings, after 'paying the expenses thereof, to first satisfy out of the assets in his hands all liens upon the funds of the corporation in the order of their priority, then to pay the general creditors, and, if anything is left after paying debts, to distribute what remains among the stockholders in proportion to their respective holdings. The creditors referred to in this section are those persons who are such at the date of the decree of insolvency and the appointment of the receiver, for, by that adjudication and appointment, the right of the corporation to continue the carrying on of its business ceases, and, consequently, it can thereafter create no further indebtedness. So, too, the stockholders referred to in the section are those who occupy that position at the same date. This is made plain by the twenty-first section of the act which makes each subscriber to the stock of a corporation, who has not paid the full par of his subscription, liable to pay over to the receiver the unpaid portion of the purchase-money, when it is required to pay debts because of insufficiency of other assets. It has been held under similar statutory provisions, and, as we consider, rightly, that such a liability cannot be escaped, after a winding up proceeding has been instituted, and the corporation has been decreed insolvent, even though the subscriber was induced to purchase the stock by fraudulent misrepresentations made to him by the corporation, or its duly-authorized agent. Oakes v. Turquand, L. R. 2 H. L. 325; Tennent v. Glasgow Bank, 4 App. Cas. 615; Houldsworth v. Glasgow Bank, 5 App. Cas. 317; Scott v. Deweese, 181 U. S. 202.

It is true that in the cases cited the matter to be determined was the right of such a stockholder to avoid liability to make contribution for the payment of the debts of the insolvent corporation by repudiating his contract, but the principle involved is equally applicable to the present situation; for, if the stockholder cannot avoid his liability to make contribution for the benefit of creditors by repudiating his purchase of the stock, he cannot by such action deplete the assets of the corporation in the hands of the receiver, held by him in trust primarily for their benefit.

We conclude, therefore, that the order under review should be affirmed.

For affirmance—The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Vredenburgh, White, Terhune, Heppenheimer, Williams, Taylor—15.

For reversal—None.


author: Swayze, J.

text:
    Lillie K. Moore, appellant, v. James A. Gordon, surviving executor, et al., respondents.
    [Submitted December 7th, 1914.
    Decided November 15th, 1915.]
    A testator devised to his wife and two children the use of the house in which he resided until the same was sold; he directed that on the sale the proceeds should be invested by his executors in another residence for the use of his wife and children during the widowhood of the wife; on her death or remarriage or her refusal or failure to reside in the premises, he directed the executors to sell. In a subsequent clause of his will he devised the residue of his estate, real and personal, to his executors in trust, among other purposes to sell the residence, and until such sale to pay the taxes, assessments and water _ rents, and to keep the premises in repair.—Held, that there was a devise of lands or real estate to the widow, and that her failure to express her dissent to receive the same barred her dower by virtue of section 16 of the Dower act (Comp. Siat. p. 2048).

    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson, whose opinion is reported in 84 N. J. Eq. 39.

      Messrs. Queen & Stout, for the appellant.

      Messrs. Carriole cG Wortendylee, for the respondent Gordon.

      Mr. John Milton, for the respondents Muriel Lawes and Charles Lawes.
   The opinion of the court was delivered by .

Swayze, J.

This is a bill for dower. The complainant’s husband died testate seized of lands in this state and she is entitled to dower unless her right has been in some way barred. We think it necessary to consider one defence only. The decedent’s will provided as follows, so far as is material to the present case:

“Third—I give to my wife and my two children, William and Muriel Moore, the use of my house and premises in which I now reside, known as No.-lOl Waldo Avenue, Jersey City, as a residence until the same is sold. On the sale of said premises the proceeds therefrom shall be invested by my executors in another place of residence for the use of my said wife and children during the widowhood of my said wife. On the death or remarriage of my said wife or her refusal or failure to reside in said premises, No.-lOl Waldo Avenue, or such other place of residence as shall have been provided as aforesaid by my executors, I direct my executors to sell said premises, No.-lOl Waldo Avenue, or such other place of residence as shall have been provided as aforesaid, as soon as they think practical and invest the proceeds in securities as part of the residue of my estate. * * * Sixth—-I give, devise and bequeath all the rest and residue of my estate—real and personal, to my executors hereinafter named in trust for the following purposes, viz.: (A) To sell and dispose of my house and premises known as No.-lOl Waldo Avenue, Jersey City, at public or private sale at any time they shall think advisable and until such sale to pay the taxes, assessments and water rents levied against the same and to keep the said premises in repair. * * * (IT) To convey to my said son, William Moore, all my real estate at Bahway, in the State of New Jersey, on his arriving at the age of twenty-five years, and to convey to my said son the undivided one-half of the residue of my real estate and one-half of my personal estate there remaining on his attaining the age of thirty years. (G) To assign and convey to my said daughter the remaining one-half of my real estate and personal on her attaining the age of thirty years.”

The question is whether there was such a devise to the widow that under section 16 of the Dower act (Comp. Stat. p. 2048) she is barred by her failure to express her dissent in writing within six months after probate of the will. This resolves itself into the question whether her husband devised to her any lands or real estate for her life or otherwise. The statute was passed in 1820 for the purpose, as Chancellor Vroom said in Stark v. Hunton, 1 N. J. Eq. 216 (at pp. 227, 228), of establishing a plain rule, simple in its terms, and definite in its results, to do away with the difficulties in the construction of wills and in ascertaining and settling the rights of parties, where the widow claimed as devisee and dowress.

The question is not the value of the devise to the widow, whether greater or less than the value of her dower, since she is left free to take the dower if she prefers. The important object to be accomplished by the act was to make certain the title of other devisees after the lapse of the six months allowed the widow to exercise her choice. In White v. White, 16 N. J. Law 202, the devise of one room in a house (or the use of one room, for the report in this respect is uncertain) was held to bar the widow’s dower in a hundred acres of land. Tested by these rules, which have been established for so many years in the court of chancery and the supreme court, we think the provision in the third clause of the will amounted to a devise of lands or real estate. If it stood alone, there could be no doubt on this score. We need add nothing to what the learned vice-chancellor said upon the effect of the devise of the use of the property. The only new question raised in the case is that presented by the sixth clause of the will. The argument is that the devise to the executors in that clause is inconsistent, with the view that the widow took a legal estate under the third clause, and it is said that only a devise of a legal estate will bar her dower. It was so held by Chief-Justice Green in Van Arsdale v. Van Arsdale, 26 N. J. Law 404. A careful examination of the sixth clause dispels the supposed inconsistency. By that clause the devise to the executors is only of the rest and residue of the estate, real and personal. The only devise of real estate preceding this sixth clause is that to the widow and children in clause 3, so that the residue of the real estate can only mean what remains after taking out the interest therein devised. It is suggested that the executors are to keep the premises in repair, and that this necessarily requires that they should have an estate which would justify their entry to make repairs. We think that such was not the testator’s intention. The direc-' tion to keep in repair is coupled with the direction to pay taxes, assessments and water rents. The money to pay these charges must necessarily come out of property other than the residence, and we agree with the vice-chancellor that the testator’s only meaning was that the executors should furnish out of other portions of the estate the money necessary for these purposes. In thus limiting our decision to the single point, we are not to be understood as questioning other propositions supported by the vice-chancellor’s opinion. We think it advisable to rest the case upon the statute alone.

The decree is affirmed, with costs.

For affirmance—The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Vredenburgh, White, Terhune, Heppenheimer, Williams, Taylor—15.

For reversal—None.


text:
    Louis Cohn, respondent, v. Sarah Plass et al., appellants.
    [Submitted March 22d, 1915.
    Decided November 15th, 1915.]
    1. A grantor conveyed land to his son and took back a purchase-money mortgage which he afterwards recognized as a subsisting lien; he also by reference in subsequent deeds for adjoining land recognized the title of grantees from his son.-—Held, that the deed to the son could not be regarded as fictitious and a mere nullity.
    2. The burden is upon one who asserts an actual possession against the legal title to prove it.
    3. If a grantor remains in possession after his conveyance, he holds possession in trust for his grantee, and his possession cannot become adverse without notice to the grantee.
    4. When a mortgagee holds possession for twenty years after default by the mortgagor his title under the mortgage becomes absolute.
    5. A mortgagee has no right to enter or bring ejectment before default. His right to possession is only a right of re-entry upon failure of the mortgagor to perform the condition, and such an entry requires publicity.
    On appeal from a decree advised by Advisory Master Charles J. Eoe.
    On bill to quiet title. The decree adjudged the title of the complainant to be good.

      The following statement of the facts is extracted from the conclusions of the master: The tract in question is situate in the city of Bayonne along Avenue H. The complainant acquired his title by a warrantee deed made by John YanBuskirk and wife, dated November 4th, 1912, and as a further muniment of title received from the grantor the assignment of a mortgage given by Edward YanBuskirk to the grantor to secure $2,000, dated June 7th, 1881, and payable in one year.
    The defendant Ralph Packard claims an interest in seventeen-hundredths parts of said tract under a deed made by the defendant Plass, to him on June 20th, 1912, and also under a certificate of sale for taxes under the Martin act, dated November 10th, 1893, wherein it is certified that the said premises were sold to Harriet L. Packard, who devised her property,to the defendant Ralph L. Packard. The redemption of this certificate of sale was never cut off and the property was redeemed by the complainant.
    The title of the defendant Packard to the seventeen-hundredths parts arose as follows: In 1881, John YanBuskirk, the grantor of the complainant, conveyed the tract in question to Edward YanBuskirk for the consideration of $2,000, which was secured by the mortgage of $2,000 before mentioned. Edward YanBuskirk, simultaneously with said conveyance, conveyed the property to one hundred grantees. These grantees were men nominated by the Liquor Dealers Association of Bayonne. The object of the conveyance was to make these one hundred nominees freeholders in order to qualify them to recommend licenses fox the sale of liquor. The deed was left with the attorney of the Liquor Dealers Association and by him recorded. The city of Bayoime refused to recognize the qualifications of these persons and the plan so devised fell through. Neither Edward Yan-Buskirk, the intermediary, nor any of tírese grantees endeavored to take possession or claim any title under said conveyance. John YanBuskirk, who, for more than twenty-five years before, had been the owner of the said lands, which was a part of an original farm, devised to him, continued to retain tire possession and to occupy the land in question, in the same manner that he had always occupied it, until the deed made by him to the complainant. .No principal or interest was ever paid by the mortgagor or his assigns upon the mortgage of $2,000 made to John YanBriskirk at the time of said transfer. In 1891, the defendant Sarah Plass acquired title to seventeen-hundredths parts of said premises through various deeds made to her by seventeen of these one hundred grantees. This interest was conveyed to tire defendant Packard, as before stated.
    John VanBuskirk, when he made the conveyance in 1881, and received back a mortgage as consideration for the said convejance, retained the possession of the mortgaged premises without dispute by the mortgagor; he continued to retain such possession after default in payment of said mortgage and until the right of redemption had expired by the statute of limitations.

      Mr. Elmer IP. Demarcst, for the respondent.

      Messrs. Hartshorns, Inslcy é Leake, for the appellants.
   The opinion of the court was delivered by

Swayze, J.

The important question in the case is whether the conveyance by VanBuskirk to the complainant conveyed a good title to the whole tract, including the seventeen undivided one-hundredths (17/100) conveyed by various grantors to Plass in 1891, and by Plass to Packard in 1913. The complainant at different stages in the case has relied on three inconsistent theories to sustain VanBuskirk’s title—(1) that the title acquired from his ancestor never passed out of him; (2) that he acquired title after 1881 by adverse possession; (3) that he had a perfect title as mortgagee in possession by lapse of time.

1. The replication sets up that the deed from Edward VanBuskirk to his numerous grantees, who may be called the liquor dealers, was fictitious, and that John VanBuskirk continued in possession as owner and mortgagee. If, in fact, the deed from Edward to the liquor dealers was fictitious, that could not affect the validity of the deed from' John to Edward, and as Edward never reconveyed to John, the advisory master could not be justified in sustaining the title conveyed by John to the complainant in 1912, on the theory that he was conveying the title acquired from his ancestors. The paper title, if the deed to the liquor dealers was fictitious, would be in Edward still. To decide the case on this ground would be to take too narrow a view and would not settle the rights of the parties. It is, indeed, vital to the defendant Packard’s claim to sustain the deed from Edward to the liquor dealers. We think the evidence malees it entirely clear that the deed was valid and effectual to convey the title. John VanBuskirk was at the time, as Judge Hudspeth testified, in politics, wanted to make political capital, and was only too ready to offer the property in order to qualify men as freeholders to sign recommendations for liquor licenses. As he received no consideration for the conveyance, the scheme was to protect him by a mortgage on the property. To accomplish that, he conveyed to his son, Edward, and took a mortgage back, and then Edward conveyed to the liquor dealers subject to the mortgage. The deed to the liquor dealers was delivered to Judge Hudspeth, who had it recorded. The scheme to qualify men as freeholders in this wholesale way fell through. The land was salt meadow and seems to have been of little value. No attention was paid to it for years. Under these facts, we think that Packard had paper title to the undivided seventeen-hundredths of the tract, and that John VanBuskirk had no paper title except as mortgagee unless we go further back and hold his deed to Edward to be fictitious and a mere nullity. This cannot be done. The reasons that are applicable to the deed from Edward to the liquor dealers are equally applicable to the deed from John to Edward. In addition, there are repeated acts of recognition by John of the validity of both deeds. The very fact that he took back a mortgage as security was itself a recognition, since Edward’s conveyance by way of mortgage to John was naught unless Edward had acquired the land by deed from John. John recognized this mortgage as a subsisting lien years afterwards. He not only conveyed to Cohn in 1912 subject to the mortgage, but he assigned the mortgage itself to Cohn and made it an express condition that Cohn’s title, by virtue of the assignment, should not merge into any other title which he might have in the mortgaged premises. John not only recognized the validity of his deed to Edward, bnt he also recognized the validity of the deed from Edward to the liquor dealers. In a deed made to Wenner, in 1894, he bounds the land thereby conveyed by “lands now or formerly of the Liquor Dealers Association,” and five years later, in another deed to Wenner, he bounds the land thereby conveyed by “lands known as the liquor dealers’ plot, formerly land of John VanBuskirk.” The use of the word “formerly” is convincing that John, in 1899, recognized by his deed and under his seal that the liquor dealers’ plot did not then belong to him. If John had title to the liquor dealers’ plot in 1912 when he conveyed to Cohn, it was derived either from adverse possession or from possession as mortgagee.

2. He fails to establish either that he had possession or that it was adverse. Ordinarily, the legal title draws to it the possession, and the burden is upon him who asserts an actual possession against the legal title to prove it. The tract in question was two acres of salt meadow. ' The possession relied on was the occasional cutting of salt hay. John himself testified and reiterated that the cutting was between Avenue H and Avenue I, in Bayonne. The tract in question lies between Avenue G and Avenue H. His counsel, after the testimony above mentioned, put this question: “Is it not a fact that it was between G and H, as those avenues are laid down on the map,” and he answered, “I think you are right about that. I have not looked at the map for a good while.” Aside from the impropriety of so leading a question upon a vital point, the answer is of no value; looking at the map could not help him in recollecting where the actual cutting was.

The witness Levine did not help. He said he had been cutting some “until the time the Standard took it” (evidently meaning the Standard Oil Company); what the Standard Oil Company took was not the liquor dealers’ lot, but VanBuskirk’s homestead. He also said that the liquor dealers’ plot was far away from Packard’s Digging, while, in fact, Packard’s Digging was in part on the tract. Banbury did testify to some cutting of grass, but he was very indefinite both as to the place and the time. He seems to have thought that he cut all over VanBuskirk’s land (which, perhaps, he did). Watson YanBuskirk testified that he wouldn’t say that he went right on the liquor dealers’ plot. The fact is that the land was not marked out so that the witnesses could tell whether they were cutting on the liquor dealers’ plot or not.

If, however, possession, in fact, bj John YanBuskirk, had been proved, the complainant would be met by a legal difficulty. The contention throughout was, as the master found the fact to he, that John continued to retain the possession and to occupy the land as he had always occupied it. He was, then, after the deed to Edward and before default in the mortgage, a grantor in possession. Under our law, the mortgage was a mere security until default. Sanderson v. Price, 21 N. J. Law 646, note. This has long been regarded as settled law. Shields v. Lozear, 34 N. J. Law 496, 501; Woodside v. Adams, 40 N. J. Law 417, 422. There was no default in the mortgage for at least six months; the complainant himself avers in his replication that the interest payment became due six months after the date of the mortgage and was paid by Edward, the mortgagor; that no interest has been paid since and that the mortgage is due. Until default whatever possession John held could not have been in his own right. If lie held at all he held in trust for his grantee, Edward, or for Edward’s grantees. He was estopped to deny his own deed, and his possession was the grantee’s possession. Van Keuren v. Central Railroad Co., 38 N. J. Law 165; Bingham v. Kirkland, 34 N. J. Eq. 229 (at p. 236); Rankin v. Coar, 46 N. J. Eq. 566 (at p. 571). Since such possession as he held was in trust for his grantee, and he was estopped by his deed, his possession could not become adverse to the grantee’s cestids que trust, unless John repudiated the trust and assumed an adverse position with notice to the grantees. Such is the well-settled rule as between parties and cestui que trust. Perry Trusts § 863; 1 Lew. Trusts 285. The rule has been applied to cases where the grantor remains in possession of land. Buckholder v. Sigler, 7 Watts & S. 154; Olwine v. Holman, 23 Pa. St. 279; Ingles v. Ingles, 24 Atl. Rep. 677; Schwalbach v. Chicago, M. & St. P. Ry. Co., 40 N. W. Rep. 579; Riha v. Pelnar, 57 N. W. Rep. 51.

There is no evidence that John VanBuskirk ever gave notice to the liquor dealers that he was claiming adversely to his own grant. His case was rested on an entirely different theory— that the liquor dealers never got any title, since the deed to them was bogus. If that were so, there could be no possession adverse to them, since they would be mere strangers to the title who never had even possession. John VanBuskirk failed to prove title by adverse possession, and in that respect the complainant’s case failed.

3. The third tlieoiy of the complainant’s case is that John VanBuskirk was a mortgagee in possession for so long a time that the equity of redemption is barred by the statute of limitations. Section 18 (Comp. Stat. p. 3170) enacts that if a mortgagee and those under him be in possession of the lands, tenements and hereditaments contained in the mortgage, or any part thereof, for twenty years after default in pajcment by the mortgagor, then the right of equity of redemption therein shall be forever barred. We see no reason to doubt the construction heretofore put upon, this section in the court of chancery. Chapin v. Wright, 41 N. J. Eq. 438. Under that construction, if the mortgagee has possession for twenty years, his title becomes absolute. The question for us is whether the case shows such possession. If we look at it purely as a question of qvidence, it is clear that John VanBuskirk himself never treated his claim under the mortgage as a title that had become absolute by the barring of the mortgagor’s equity of redemption. A mortgage is a deed with a defeasance clause, and unless the terms of the defeasance were strictly performed, the estate of the mortgagee would be-' come absolute upon default but for the relief afforded by equity under the name of “equity of redemption.” When the equity of redemption is once barred, the title under the mortgage deed becomes absolute, and like the title under any other deed. That title is inconsistent with the continued existence of the mortgage as a mere security. John VanBuskirk, however, was so far from treating his title under the mortgage as absolute that he was studious, almost meticulous, to keep the mortgage alive as a subsisting lien. He conveyed to the complainant subject to the mortgage; he assigned the mortgage as a subsisting security, and, to make the matter sure, took care to provide that the estate under the mortgage should not merge in the estate under the deed. He could not do otherwise under the theory on which the complainant’s case was based, that he was never out of possession; for if he was never out of possession, his possession must have begun under his ancient title by inheritance, and so continued except as modified by his legal obligations as grantor to hold in trust for his grantee. Such possession was inconsistent with a taking of possession later, after default in the mortgage. There is, moreover, the further difficulty that he would be entering as mortgagee upon his possession as grantor-trustee, and such an entry could not be justified as against his grantee'—cestui que trust—without advising the grantee of the adverse position then assumed. There is a further legal difficulty. Since the right of a mortgagee before default is only that of the holder of a security, he has no right to enter or bring ejectment before the default. The necessary logical result is that his right to possession is not, a-s at common law, tire right of an owner subject only to be defeated by the performance of the condition by the mortgagor, but is only a right of re-entry upon failure of the mortgagor to perform the condition. Before that time, the mortgagor is entitled to the rents, issues and profits, and ,the mortgagee cannot bring ejectment and is not under the obligation to account as a mortgagee in possession. Sanderson v. Price, 21 N. J. Law 646, note; Shields v. Lozear, 34 N. J. Law 496, 501. Before the mortgagee can obtain possession he must enter upon the land. It is elementary that an entry requires publicity. 2 Bl. Com. 311, 312; 3 Bl. Com. 174. No such entry is even attempted to be shown in this case. It is impossible to see how upon the complainant’s theory that John VanBuskirk never went out of the actual possession, there could ever have been an entry by him as mortgagee, much less an entry with the publicity required by the law. We' think, therefore, that the claim of title by twenty years’ possession as mortgagee also fails the complainant.

The necessary result is that the decree adjudging the title to the whole of the land to be in the complainant must be reversed. It does not follow that the title to the undivided seventeen-hundredths should be decreed to be in the defendant. No issue was made of the complainant’s right as mortgagee to foreclose his mortgage. It may be that his right of entry has not been barred. Colton v. Depew, 60 N. J. Eq. 454.

The result is that as the complainant has established no title, and the title of the defendants may possibly still be subject to the mortgage, the present bill should be dismissed, with costs.

For affirmance—None.

For reversal—The Chief- Justice, Garrison, Swayze, Trenciíard, Parker, Bergen, Minturn, Ivalisci-i, Black, Yredenburgil, White, Terhune, Heppeni-ieimer, Williams —14.


author: Swayzb, J.

text:
    Board of Health of the State of New Jersey, appellant, v. Inhabitants of the Town of Phillipsburg, respondent.
    [Argued June 18th, 1915.
    Decided November 15th, 1915.]
    1. The title of the act of 1900 (P. L. 1900 p. 113; Comp. Stat. p. 5816) does not limit the scope of the legislation to the prevention of pollution of the state’s water by means of a state sewerage commission.
    2. The act of 1908 (P. L. 1908 p. 605; Comp. Stat. p. 5880), vesting in the state board of health the powers of the state sewerage commission, is constitutional.

      Mr. John W. Wescott, attorney-general, and Mr. Herbert Boggs, assistant attorney-general, for the complainant-respondent.

      Mr. Gilbert Collins (Mr. J. I. Blair Beiley on the brief), for the defendant.
   The opinion of the court was delivered by'

Swayzb, J.

We should think it unnecessary to add to what the chancellor said but for some suggestions in the brief in this court of counsel for the appellant, which seem to deserve remark.

1. We agree with the chancellor that the object expressed in the title of tire act of 1900 is the prevention of pollution of the state’s waters and that establishment of a state sewerage commission is only one of the means by which that object is to be accomplished. The title differs entirely from the one suggested by counsel, “An act for the establishment of a state sewerage commission to prevent the pollution of the waters of this state,” &c. It is true that the words of the title of 1900, “by the establishment of a state sewerage commission,” might be read as words limiting the scope of the act. Whether words are to have that effect in any particular case depends on the legislative intent. That such was not the intent in the present case is shown by the words that follow in the title. It can hardly be that the legislature meant to limit the prevention of pollution to the cases where the creation of sewerage districts was authorized, and where the powers and duties of the commission and the boards were prescribed, defined and regulated. It would be going far to treat each clause as a limitation; yet the grammatical structure of the three clauses, and the connection of each with the words “to prevent tire pollution of the waters of this state,” is the same. “Authorizing the creation of sewerage districts,” “prescribing, defining and regulating the powers and duties,” are connected with what precedes by the same particle “by” that connects the words “the establishment of a state sewerage commission.” All three clauses were alike meant to show by the title certain means by which the object of the act was to be accomplished—an amplification rather than a limitation.

The contention of the appellant is that the object of the act cannot be accomplished by another agency than a state sewerage commission, and that the state board of health is a different agency which cannot be called a state sewerage commission. Even if we assented to counsel’s major premise, as we do not, we should dissent from his minor premise. The act of 1900, as he says, is a revision. It takes the place of the act of 1899. It undertakes to legislate on the subject de novo. The legislature might provide that the state sewerage commission created by the act should be the state board of health. There is no magic in the mere name "state sewerage commission.” The title does not point to a definite commission such as the one then existing under the act of 1899. It points only to a sewerage commission. The words are satisfied by any commission, however constituted. A commission does not necessarily mean a board of several gentlemen called by the name commission. It is surely a commission if composed of two or more, and we see no reason why two or more men may not be a commission, although collectively spoken of also as a board. To hold otherwise would, in effect, make the limitation in the title more than the appellant claims, for it would limit the execution of the legislative object, not merely to a commission in fact, but to a.commission that was also so in name. The state board of health is not a body corporate or a distinct legal entity, but a mere collective designation —a name and nothing more. A commission is none the less a commission, though called a board. That such was the view of the legislature in 1908 is shown by the enactment that the act should not render invalid any notice which might have been served prior thereto, but that such notice should continue in full force and effect, and that any proceeding begun should be further advanced and prosecuted in the name of the board of health. But for this provision it might be most forcibly contended that the notice served in 1906 was not a notice of which the state board of health could avail itself-as the foundation of the present suit. With this provision in the act, it is clear that the legislature meant to make the board of health a state sewerage commission under the act of 1900. In this way the declared intent to have proceedings, already begun, advanced and prosecuted, was made effective. The fact that in later legislation the title of the act was amended does not, as suggested, indicate that the legislature doubted the constitutionality of the legislation under the former title. It indicates no more than a desire to.make the title more explicit, or, perhaps, the exercise of an abundant' caution.

2. Under the act of 1900 (Comp. Stat. p. 5818 pl. 86) the commission was authorized to act if they found that waters of the state' were being polluted to the injury of any of the inhabitants of this state either in their health, comfort or property. The chancellor found that the citizens of Trenton were suffering injury in their health, comfort and property, in that they were compelled to expend large sums of money to purify the waters of the Delawaxe for potable purposes. This finding was not vitiated by his remark at the end of the opinion that if the Delaware,- at Trenton, was not polluted by the sewage of Phillipsburg in such manner as to cause injury to the inhabitants'of Trenton, such injury was threatened and the case was therefore within the terms of the act of 1907. This remark was by way of indicating the equitable character of his result, and not an abandonment of his previous finding, which brought the case within the terms, of the act of 1900. The first finding was warranted by the evidence.

The decree is affirmed. Costs should follow the decree. The defendants, instead of complying with the notice served in 1906, chose to litigate. We see no reason for making a distinction between a municipal corporation and an individual.

For affirmance-—Garrison, Swayze, Trbnchakd, Minturn, Kalisci-i, Black, Vredenburgi-i, Terhune, . Heppenheimer, Williams, Taylor—11.

For reversal—The Chiee-Justice, Parker, Bergen—3.