author: Per Curiam.

text:
    Hugh Seery, complainant-respondent, v. Walter S. Throop et al., defendants-appellants.
    [Decided April 28th, 1922.]
    On appeal from a decree in the court of chancery advised by Yice-Chancellor Baches, who delivered the following opinion orally:
    . “I will give counsel my views. The thing litigated and the question to be decided is whether the executed real estate deal between the parties should be set aside for fraud.

      “Seery sold- Iris residence in Montclair to Throop for $14,000, and took a second mortgage for $2,500 in part payment, payable $500 in three months and the balance in a year. The mortgage bears date September 30th, 1920. "When the $500 installment came dire Throop defaulted and Seery brought this suit to foreclose. Throop-, in his answer and counter-claim,, sets up that he was induced to buy the property through false representation, and he prays that the transaction be rescinded— that Seery take back hisi property and return to Throop his money and the mortgage. The false representation pleaded, and sought to be shown by the proofs, is that Seery stated to Throop, before the contract was entered into- — -there was a written contract made in July, 1920 — that a well three feet in diameter was on his property, when, in fact, only one-half of the well belonged to him. The dividing line between Seery’s land and his neighbor, Bimting, on the south, runs through the centre of the well. There is nothing to mark the -dividing line except surveyors’ stakes, one at the street line, another at the extreme rear of the lot and a third near the well; none of which would attract the attention of a casual observer.
    “The question is one of fact. The law is, as I understand it to be, that a misrepresentation of a material fact, acted on by, and to the injury of, the party to whom it is made, entitles him to relief in equity, to a rescission of the transaction or to compensation, depending upon the circumstances-. That is, if the false representation worked harm that is not serious, and which may readily be repaired in compensation, compensation will be allowed, or if the party injured cannot restore the status quo cmte or has waived his right to a rescission he may still be compensated if it is within the means of the court, as it is in this case, where the complainant is seeking to foreclose his mortgage.
    “The burden of proof is on the defendant to establish that the false representation was made, and this he must do by a preponderance of the evidence. Has he?
    “The testimony is that when T'hroop first went to look at the property Seery boasted of the quality of the water, saying that it was the finest well in the neighborhood, or words to that effect, and that he was sorry to part with his property because of the well. He repeated the same sentiment when Throop went back the second time, with Mr. Simpson, the real estate agent, and no doubt gave the impression that the well belonged to him, although he at no time made the outright statement that it was on his property7. That, however, was the natural inference to be drawn. On the third trip Throop said he noticed Mr. Bunting, the next-door neighbor, help himself to water, and that he asked Seery whether he was permitted that, and that Seery said, ‘Yes; he was drawing it by permission/ Seery’s story is somewhat different. The boasting of the well water is not denied. He says that on the day in question (the third trip) they (he and Throop) made a circuit of the lot, he pointing out the lines, and that when they got to the well the inquiry as to Bunting’s right to take the water occurred, and that he said to Throop that Bunting had the right; that he pointed out the stake near the well and indicated that the line ran through the centre of the well, saying, ‘There’s the stake,’ pointing to it, and ‘Here’s the well,’ indicating, and that Mr. Throop said, ‘All right; yes, yes,’ and passed on. Seery’s wife and daughter tell substantially the same story. They say they were in the yard near the well when Throop and Seery passed and that Mr. Seery pointed out the stake and the division line, showing that the line ran through the centre of the well. I do not recall that Throop denied specifically what the Seerys say took place. However, his narrative • varies decidedly7 from theirs. True, the testimony of the three as to this vital point is phrased in almost identical language, and it would appear that they had rehearsed the story; not to arrange what they were going to sayr, but how1 to say it — that is, how they were going to say what took place. They are plain folks, unaccustomed to court methods, and I have no doubt they talked tlye matter over frequently. That is not an uncommon thing. They appear to be people who fully appreciate the solemnity of an oath. Now7, while the lack of spontaneity detracts, it does not discredit their testimony. I cannot, of course, cast it aside, as it’ is urged I should, because of the sameness of the expression, for its source is quite as worthy as is that of the defendant. It clearly outweighs his version of the event and denial, if denial he made, that he was shown and told that the boundary line ran through the centre of the well.
    “Then, in addition to the weight of the spoken testimony— three to one — there is this thing to be looked to, that is, the folly of Seery making the representations and hoping to escape discovery and the consequences. The falsity could not long he concealed and the consequences were sure to be speedy. Seery was inviting a law suit — ^one that would result in upsetting the entire transaction or materially reducing his mortgage, in the event of a foreclosure. I cannot conceive a sensible man making a false representation, knowing that discovery would be immediate and that he must pay the penalty. It is not in line with common experience.
    “Then there are things in the testimony that lead me to suspect that Throop knew where the line ran, or that he was not much concerned whether the well was entirely within Seery’s property or not. One is, that Seery had a survey of his lot showing the well divided by the party lines. This survey was ■ attached to the title searches which were delivered to Throop or to his attorney. The searches and the survey were present and no doubt inspected at the time the title was passed. Throop was there; he had access to them; he was a lawyer. Whether he actually noticed the location of the line on the survey does not appear. He says he did not. Whether he did or not, the production of the survey at that time makes for candor on the part of Seery. He was not then concealing the location of the well.
    “Another is, that the well’s frame had two spouts, one toward the Bunting side, the other to the Seery side. This would attract the casual observer, let alone one about to bujr, and it no doubt caught Throop’s eye, and if he were interested in the well I have no question that he would have assured himself fully.
    “Then, this stands' out against Throop’s claim that' he was deceived. He learned that it was a party well on November 1st. That he admits. He made no- complaint to Seery. If the false representation upon which he now relies to npset the deal had, in fact, been made, and lie had been so grievously injured, as he now says he is, would he not have protested at once? Seery was a policeman in the town and was readily accessible. But Throop did nothing of the kind. Instead, he went along making substantial improvements in his home during November, December, and as late, as I recall,' as last June. He was not heard to complain until about the time the first installment of his mortgage came due. His silence during all that time, after he had been so grossly' deceived, as he claims to have been, inclines me to believe that it was not news to Throop when Bunting told him, on November 1st, that one-half of the well belonged to him. Throop says he delayed because 'he was not sure of his' rights, a right to rescind or a claim to compensation. That is an answer but not an explanation. If he had felt that he had been wronged, would not the natural thing have been to call the wrong-doer to account at once, regardless of the kind of relief ? He surely must have known, as a lawyer, that he had some remedy.

      “I think the well played little part in the deal; by no means the extent to which it w:as magnified at the trial. Throop says that one of the reasons, a major reason, that induced him to buy the property was that the water of the well was drinkable and that he had anticipated using it commercially — selling it to the people in Montclair. I can hardly credit this. It is a surface well in a thickly populated community, where time and again wells had been condemned by the health authorities. It is true, the well is not as yet contaminated, as appears from analysis made, what of to-morrow? To insure that the water is potable, daily analysis is necessary; it is under constant suspicion because of the great and ever present danger. I doubt if the authorities of Montclair would permit a salé of the water. Then again, Throop is a lawyer whose time is taken up by his professional work. It seems hardly likely that he, a lawyer, would engage in the water purveying business, with all its troubles and outlays for bottles and so forth, and the precariousness of the supply and the' doubtful returns. I think his grievance in this respect has been somewhat exaggerated.
    “Throop has not sustained the burden that the law casts upon him of establishing by a preponderance of the evidence the alleged false representation, and for that reason his cross-petition must be dismissed. The complainant, Seery, is entitled to a decree for the amount, of his mortgage.”

      Mr. Charles Jones and Mr. James P. Myiod, for the respondent.
    ’ Mr. George 8. Hobart, for the appellants.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion delivered by Vice-Chancellor Backes in the court of chancery.

For affirmance — The Chibe-Justioe, Swayze, Trenchard, Parker, Bergen,, Minturn, Kalisoh, Black, Katzenbach, White, Heppenheimer, Williams, Gardner, Ackerson, Van Buskirk — 15.

For reversal — None.


source: Caselaw Access Project

license: Public Domain

text:
    Walter S. Throop and Alice Throop, complainants-appellants, v. Hugh Seery, Elizabeth Seery and New Jersey Title Guarantee Trust Company, defendants-respondents.
    [Decided April 28th, 1922.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Baekes, whose opinion is printed in 93 N. J. Eq. ms.

      Mr. George 8. Ilobart, lor the appellants.

      Mr. Gharles Jones and Mr. Jamies Mylod, for the respondents.
   Per Curiam.

The same issues involved in this suit were tried and decided by the court of chancery in the foreclosure suit of Hugh Seeiy, complainant, and Walter S. Throop' and wife, defendants. In that case there was a decree for the complainant, and in this case the complainant’s bill was dismissed. An appeal was taken by the defendants in that case, the complainants in this one, from the decree of foreclosure, and by those complainants from the decree in this case dismissing their bill. The other case is No. 37 of the present term of this court, while this case is No. 36. Tn a per curiam filed in No. 37 contemporaneously herewith, we affirm the decree in the foreclosure suit, and, as the same issues are involved in this suit, we, for the reasons given in the other suit, affirm this decree.

For affirmance — The Chibe-Justice, Sway.ze, Trenchard, Parker, Bergen, Minturn, ICalisct-i, Black, Kaxzenbach, White, IIeppenheimer, Williams, Gardner, Ackerson, Van Buskirk — 15.

For reversal — None.


text:
    Montclair Building and Loan Association, complainant, v. James Martin Miller et al., defendants
    [Decided April 28th, 1922.]
    On appeal of Nellie L. M. Woodbury.
    On appeal from a decree in the court of chancery advised by Vice-Chancellor Fielder, who delivered the following opinion orally:
    “The title to the premises in question was held by the Montclair Savings Bank, it having been acquired under foreclosure of a mortgage covering, property of which Mrs. Woodbury was then the owner. After taking title the Montclair Savings Bank made a contract or agreement with Mrs. Woodbury to convey the property to her for a specified sum, which I believe covered the amount due the bank under the foreclosure, with costs and expenses. That agreement defined the terms under which Mrs. Woodbury might again become the owner of the property. She failed to fulfill the contract upon the day fixed by the terms and several extensions were granted her which covered quite a period of time. Under the last extension, as well as under the original agreement, she had the right to take the title at any time prior to the date limited, provided she tendered the contract price, and, she did not need, for the purpose- of taldng title, the assistance of a dummy or any other person so far as the savings bank was concerned.
    “It appears that after the date of the last extension she desired to take the title and give back a mortgage to the savings bank for a part of the purchase price and she contends, and the savings bank denies, that the savings bank was unwilling to take a bond and mortgage made by her and insisted that the title should be conveyed to someone else who might make the bond and mortgage for the part of the purchase price agreed upon. It seems strang-e to me that the savings bank, having contracted to convey to her, should thereafter insist that it preferred a bond and mortgage made by an utter stranger, when the reason assigned by Mr. or Mrs. Woodbury for the refusal of her bond, was that they doubted her responsibility. The savings bank would be no more assured of the responsibility of a stranger on a bond than it would be of Mrs. Woodbury’s responsibility; so that it seems rather improbable to me that that situation should have arisen. Mr. and Mrs. Woodbury testify that James Martin Miller, was a dummy, who was.to take title for them, having no interest himself in the property or in the purchase price and that that fact was made known to Mr. Goodell, who was president of the Montclair Savings Bank, and who acted for the savings bank in closing the title from the savings - bank. Mr. Goodell denies that he knew Miller was a dummy. There is no evidence, except the bare assertion by Mr. and Mrs.' Woodbury,denied by Mr. Goodell, that would lead Mr. Goodell to believe that Miller was a dummy. Miller may have been a purchaser of the equity that Mrs. Woodbury had under the contract and may have settled with her for whatever interest, she thought she had in the property and in that wajr have become a purchaser of the property from her. If he was a dummy, if he had no financial interest in the transaction, why was it necessary for Wood-bury to hand him the four or five hundred dollars which was the cash part of the transaction and have Miller pay it to Mr. Goodell? If it were known to Mr. Goodell, as Mr. Woodbury insists, that Miller was a dummy, and that the money put up was raised by Mr. and Mrs. Woodbury, it was not necessary to give the money to Miller ánd have Miller bring it in and hand it to Mr. Goodell. The fact that Miller had the money and produced it, together with Mr. Goodell’s testimony, leads me to believe that it had not been made .known to Mr. Goodell that Miller was a dummy and was not an actual, bona fide purchaser of the property. But assume that Mr. Goodell, as president of 'the Montclair Savings Bank, as a member of its board of directors, ancl as its agent or representative in closing the transfer of title from the bank to Miller, had actual knowledge of the fact that Miller was a dummy and was taking title for the Woodbnrys; assume that he had knowledge of such facts as would put him upon his inquiry or charge him with notice in law of the existence of the situation that the Woodbur-ys contend for; assume also that Mr. Carlson, who was a director of the Montclair Savings Bank, and was also a director of the Montclair Building and Loan Association, had actual or constructive notice of the same situation, I do not think that the evidence shows notice that would bind the Montclair Building and Loan Association. Suppose that Goodell and Carlton did have actual or constructive notice, the situation then was that Miller, holding title in his own name, applied to the Montclair Building and Loan Association for a loan upon real property and represented himself to be the sole owner thereof; that the application was laid before the board of directors of the Montclair Building and Loan Association, of which board Mr. Carlson was a member, and Mr. Goodell was an ex-officio member, and after an examination of the property to ascertain its value, the board of directors of the Montclair Building and Loan Association voted to grant Miller a loan on his bond secured by his mortgage, leaving it to counsel of the association to ascertain the condition of the title by a title search, and Mr. Goodell was that counsel. My understanding of the law is that the knowledge Mr. Goodell or Mr. Carlson, or either of them, had acquired through their connection with the Montclair Savings Bank of the existence of facts such as are contended for by the Woodburys would not be imputed to another corporation in which they were interested, and that the Montclair Building and Loan Association, therefore, would not be charged with knowledge of facts known to those two individuals, not disclosed by a title search or brought to the attention of the board- of directors of the building and loan association.
    “I should add that the evidence does not show that Mr. Carlson, as a director of the Montclair Savings Bank, bad knowledge that Miller took title from that bank as a dummy for Mrs. 'Woodbury.

      “The Woodburys also contend that when the committee of the building and loan association, of which committee Mr. Carlson was a member, called at the Woodbury house to inspect the property in connection with Miller’s application for a loan, they found Mrs. Woodbury in possession, and that, therefore, they and their corporation were put upon inquiry to- ascertain what her interest in the property was. From the testimony I believe that on the occasion of this visit the members of the committee saw and conversed with Mrs. Woodbury and that they informed her they were there on the Miller application for a loan on the property, and that she led them to believe that she was occupying the property as a tenant and that she did not tell them Miller was not the owner of the property and that she was.
    “I think that the Montclair Building and Loan Association is entitled to a decree in this cause for the amount secured by its mortgage, with interest and costs of suit.
    “A second mortgage is presented by a man who was admitted as a party to this suit as a holder of a mortgage set up in the bill of complaint. The mortgage was made by the same Miller to the Bank of Montclair, a different organization from the Montclair Savings Bank. There is no evidence except that Mr. Goodell was connected with the Montclair Savings Bank as well as with the Bank of Montclair to show that the Bank of Montclair is chargeable with the notice that Mr. Goodell had, if he had it, acquired as an officer of the Montclair Savings Bank, that Miller was not the real owner of the mortgaged property, so that that mortgage appears to be a valid mortgage as far as the Bank of Montclair is concerned. In- any event, it was assigned for value to Mr. Marshall, who now holds it, and he does not appear to have had notice of any kind that the mortgagor, Miller, had no authority to execute it. I think, therefore, that the mortgage now held by the defendant Marshall is a valid obligation and a charge and lien against the property, and in the decree there should be a provision that the amount of money due on it be paid to Mr. Marsh,all and the property in question should be sold to satisfy the amount due on the first mortgage as well as the second, the surplus to be paid into court.”

      Mr. Absalom P. Bachman, for the defendants-appellants. '
    • Messrs. Edwin B. & Philip Goodell, for the complainant-respondent.

      Mr. John Ij. Griggs, for the defendant-respondent Raymond W. Marshall.
   Per Curiam.

The decree appealed from will be affirmed, for the reason stated in the opinion delivered by Vice-Chancellor Fielder in the court of chancery.

For affirmance — T1-ie Chief-Justice, Swayze, Trbnchard, Parker, Bergen, Minturn, Kalisci-i, Black, Katzenbach, White, Heppeni-ieimer, Williams, Gardner, Ackerson, Van Buskirk — 15.

For reversal — None.


text:
    The F. A. Cigol Rubber Company, a corporation, complainant-respondent, v. Frank A. Cigol, defendant-appellant.
    [Decided April 28th, 1922.]
    On appeal from a decree in the court of chancery advised bjr Vice-Chancellor Fielder, who delivered the following opinion orally:
    “I shall state my conclusions in this matter very briefly because I do not think it necessary to go into this matter at any ■great length. I am satisfied from the evidence in this case that (there was an arrangement followed by an agreement between the directors of the company, that the company should purchase from Mr. Cigol the letters-patent issued to him and his rights under applications for letters-patent then pending, and that he agreed to sell to the company those patents and those rights under the applications. All the evidence in the case indicates that that is the fact and that such was the understanding between the three members of the board of directors in their conferences held prior to- the meeting of the stockholders of the company at which formal action was taken by the stockholders and the subsequent action, which it is admitted was taken by the hoard of directors. If there were any doubt in my mind as to the agreement that had been entered into between these three men prior to the meetings of the stockholders, that doubt would he resolved against the defendant in this case after reading the minutes of the meeting of Majr 8th and the resolution then adopted and for which Mr. Cigol voted. He sat in that meeting and took part, in the formal proceedings of the meeting, and he acquiesced in the purpose of the meeting not only by his presence and failure to object, but by his affirmative action in voting in favor of the resolution. I have no- doubt, therefore, that he did agree to assign the patents and the patent rights that are the subject of this suit to the corporation, and that there, was no' tacit understanding or express agreement between Mr. Cigol and the-other stockholders or other directors of the company that the resolution, which is very clear and plain, should not be carried out by performance on his part in the assignment of the patent rights that he held.
    “I rim also satisfied that he agreed to assign the patent rights in consideration of the issue of twelve thousand nine hundred and four shares of common stock to him, and that the stock was so issued and that he has received the consideration for which he agreed to make the assignment. What he subsequently did with that consideration is of little importance in this case.
    “Now, the remaining defence is that the property was not worth the paf value of the stock issued. But Mr. Cigol sat in the board and he determined, with the other directors, that the patent rights which he was to assign to the company were worth the par value of the stock that he agreed to accept as consideration for the sale of such property. If what he said by his action in the board of directors and at the stockholders’ meeting was not true, he would have been guilty of a fraud upon anybody who was acting in good faith without knowledge of the actual facts, and under the amendment to section 49 of the Corporation act, passed in 1913, chapter 15 of that year, if he executed the certificate required by the act, he was guilty of a misdemeanor with the other directors or other officers and liable, of course, to punishment for misdemeanor under the Crimes act of the state. But it appears that the only persons affected by the issue of this stock, including the purchaser of the $100,000 of preferred stock issued at the same time, had full knowledge of all the facts, understood what was being done and took the new stock, common and preferred, with a full understanding of the whole situation; that there was no one else concerned in the transaction; there were no creditors, no persons to be affected by the act of the stockholders and directors. I do not understand that the Corporation act, applying to this situation, makes such action illegal or void. The question of the amount of consideration paid for the stock may be raised in a proper case, and it might be possible, if anyone else were affected by this transaction, that the stockholders of the companjr who took this stock with knowledge of the fact [if it was a fact] that the property purchased was not of the value of the stock, would be required to pay into the company the difference between the value of the property purchased and the pax'value of the stock; but after the stock once issued had reached the hands of the persons who agreed to take it with full knowledge of the facts, I think it would be exceedingly inequitable that Mr. Cigol, who, I find, entered into this transaction with full knowledge of what he did, acquiescing in the action of his co-directors and participating in their action, getting stock for which he failed to give the consideration he agreed to give, should now be permitted to take advantage of a. wrong in which he participated. My conclusion is that the prayer of the bill of complaint should be granted and a decree for specific performance directing Mr. Cigol to transfer these patents and patent rights to the company should be entered.”

      Mr. Gustav A. Hunziker, for the defendant-appellant.

      Messrs. TAndabury, Depue & Faulks, for the complainant-respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated' in the opinion delivered by Vice-Chancellor Fielder in the court of chancery.

For affirmance — -Trie Chibe-Justice, Swayze, Trenchard, Parker, Bersbn, Minturn, Kalisch, Black, Katzenbach, White, Heppenrieimer, Williams, Gardner, Aokerson, Van Buskirk — 15.

For reversal — -None.


text:
    City of Ventnor, appellant, v. J. Harry Fulmer et al., respondents.
    [Decided April 28th, 1922.]
    On appeal from 'a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 92 N. J. Eq. lft 8.

      Messrs. Bourgeois é Coulomb, for the appellant.

      Mr. Theodore W. Schimpf, for the respondents.
   Per Curiam.

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

For affirmance — The Chief-Justice, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisch, Black,, Katzenbaci-i, White, Williams, Gardner, Ackerson, Van Buskirk — 14.

For reversal — None.


text:
    Gail H. Helmer. executrix, &c., v. Farnham Yardley et al., executors, &c.
    [Decided March 13th, 1922.]
    On appeal from a decree of the prerogative court advised by Vice-Chancellor Griffin, whose opinion is.reported in 92 N. J. Eq. S97.

      Mr. Max M. Stallman, for the appellant.

      Mr. Albert O. Wall, for the respondent.
   Per Curiam.

Gail H. Helmer, executrix under the will of George J. Helmet’, deceased, petitioned the orphans courti of Essex county, praying a decree compelling Yardlei^ and Montague, the executors of Alfred B. Jenkins, deceased, to pay over to .her the amount of a legacy which, as she averred, she was entitled to receive from them as the representative of George J. Helmer, the legatee named in the Jenldns will. A hearing having been had upon the petition, a decree was entered directing the payment of the legacy to the petitioner. The executors of Jenldns thereupon appealed to the prerogative court, with the result that the decree of the orphans court ivas reversed. The present appeal is taken from the decree of reversal. ;

Our consideration of the case leads us to the conclusion that the construction put by the orphans court upon the legacy contained in the will of Alfred B. Jenldns, deceased, and which is the subject of the present litigation, is the correct one, and that the decree of the prerogative court, therefore, must be reversed. The grounds upon which our conclusion rests are those expressed in the opinion of Judge Martin, delivered in the orphans court; and this court adopts that opinion as its own.

The opinion of Judge Martin is as follows:

“Alfred B. Jenkins, late of West Orange, died the 29th of December, 1916, leaving a last will and testament which was admitted to probate the 10th of January, 1917. The will was executed on the 11th of 'June, 1915. The ninth paragraph provides as follows:

‘Ninth. If I have not already provided for the same during my lifetime and if my friend, Doctor George J. Helmer, now of Nyack, New York, shall succeed in establishing his clinic for advice and treatment of patients under the School of Osteopathy. I give and bequeath to 'him for his assistance in establishing such clinic the sum of twenty-five thousand dollars. If, however, I have made my contribution to him, or if by the time of the taking effect of this, my will, he has failed to establish the clinic, I direct that this legacy shall lapse, fall into and become a part of my residuary estate.’

“Dr. Helmer, a resident of Nyack, New York, survived the testator and died the 15th of March, 1917, leaving a last will and testament which ivas admitted "to probate by the surrogate’s court, county of Rockland, New York, and letters testamentary were issued to petitioner, wlm qualified and is now acting as executrix.

“The pleadings admit that testator did not make his contribution to the clinic of Dr. Helmer nor provide during his lifetime for establishing any clinic for the treatment of patients under the School of Osteopathy.

“The issue is whether Dr. Helmer performed the condition precedent prior to the time of the death of testator, December 29 th, 1916.

“The parties agreed at the hearing that this provision was not intended as compensation or reward personally to Dr. Helmer for his services rendered. This agreement seems to be proper. Clearly the intention of testator was to give $25,000 to aid the free advice and treatment of patients under the School of Osteopathy. He placed the fund to be paid out under the direction of Dr. Helmer for the benefit of his clinic.

“The facts are not disputed. Dr. Helmer wias one • of the oldest graduates of the recognized School of Osteopathy and enjoyed a very large and lucrative practice in New York City and was the leading osteopath in the eastern section of the country. He was the professional adviser of and administered osteopathic treatments to testator and members of his family during the five years prior to testator’s death.. The testator was a close personal friend of Dr. Helmer and no doubt testator greatly admired Dr. Helmer personally and professionally and believed in the school of treatment of human ailments espoused by Dr. Helmer.

“One of the witnesses stated that many years ago, probably about 1907 or 1908, Dr. Helmer spoke of the desirability of personally establishing a clinic for the osteopathic treatment of persons unable to pay, but the idea was abandoned by Dr. Helmer long before he ever knew the testator.

“The followers and adherents of the new School of Osteopathy as a scientific method of treatment of disease generally believed in the plan of benefiting the public by making better known the principles of their school, and to that end to establish a place where patients might be given advice and treatment practically free of cost. The purpose .of the osteopathic physicians was supported by the belief that it would greatly enhance the reputation and standing of the School of Osteopathy.

“The Osteopathic Society of New York City, of which Dr. Helmer was a member from the time of its organization until his death, was the principal society of practitioners of the school in and around New York City. Dr. I-Ielmer appears to have advocated and in fact did frequently speak Lo members of the-society of his conviction that a clinic should be established in New York City for the treatment of the poor.

“In the year 1912 a resolution of the society was passed declaring that the time had arrived when efficient measures should be taken to establish a clinic. The committee was appointed and met from time to time for a peiiod of two years and discussed various measures with a view of establishing a clinic. The natural result was the securing of the active support of the leading osteopathic physician and Ms friends. It was arranged among the interested osteopaths that they personally should not become members of the board of directors of the New York Osteopathic Clinic. The policy was adopted to promote harmony.

“The first effective step towards organizing a clinic was the selection of a board of prominent citizens.

“In 1914- Dr. Ilelmer obtained the interest and active cooperation of Mr. William Strother Jones, of the New York stock exchange, and the Rev. Charles J. Eaton, pastor of Madison Avenue- Baptist Church. These two friends of Dr. Hehner were the first laymen selected to support the project and their active participation gave great encouragement to those interested in the enterprise. Other osteopaths also- invited some of their patients and friends to join the board. Mr. Jones was selected as the president of the board and has since taken a very effective part in all the affairs and progress of the clinic.

“On May 30th, Dr. Ilelmer invited a large number of osteopathic physicians in and around New York City to visit him at his home at Nyack, New York, and there was discussion of the proposed activities of the clinic.

“On the 13th day of March, 1914, r charitable or membership corporation was organized under the laws of New York known as the New York Osteopathic Clinic.’ It was stated that the object was to establish a dispensary to conform to the law. That savored too much of medicine but the official title and actual work show it to be the kind of clinic mentioned by testator. Dr. Helmer and a number of osteopaths made contributions for the purpose of giving it a standing and character sufficiently satisfactory to 'warrant the legally constituted authorities of the State of New York to permit it to begin its proposed operations, and on the 15th of April, 1914, the state bóard of charities granted a license to the organization. On the 1st of May, 1914, a lease for the building at 33 East Thirty-second street was entered into, the clinic for patients was opened the 13th of July,

1914, and it has since continuously given advice and treatment to patients under the School of Osteopathy free of charge except ■where the patient could pay some money but much less than the usual charge of osteopaths.

“Dr. Helmer was a member of the clinical staff and gave his support, co-operation and time and attention to the activities of the institution and personally gave advice and treatment to patients at the clinic until his decline in health prevented him. After the summer of 1916 he sent a substitute to perform his personal work with the patients.

“The money raised for the initial work of the clinic at the time of the incorporation was rapidly disbursed and exhausted during the first year of the existence of the clinic. The finance committee, of which Dr. Helmer was l member, relied to a great extent upon Dr. Helmer to relieve the situation because his practice was recognized to be unusually large amongst the wealthier class of people and therefore it was believed he could raise more money than the rest. During April, May and June,

1915, about the time of the preparation and execution of the will of Alfred B. Jenkins, Dr. Helmer was particularly active in enlisting and obtaining financial assistance for the institution. At a meeting of the Osteopathic Society of New York City, in May, 1915, he secured pledges of financial support and stimulated competition and the interest of his fellow osteopathic physicians by marking up" the pledges on a blackboard. He personally pledged the sum of $1,000, which was an example for the others. All of these efforts-and activities on Dr. Helmeris part were for and on behalf of the newly-forrned and struggling clinic. As a result the temporary difficulties in which the New York Osteopathic Clinic was enmeshed were greatly relieved and the institution has continued to exist and carry on its work up to the present time.

“This New York Osteopathic Clinic was the only one in which Dr. Helmer was or for many years had been interested. ■There was no other clinic in or around New York City contemplated, designed, in progress or formation or in existence. There is no evidence of the existence of any other.clinic that could have been known to testator.

“Petitioner contends that she has shown by the uncontradicted evidence and the fair inferences to be drawn therefrom that the condition precedent to the validity of the legacy has been fully performed by the incorporation, actual establishment and continuation of the New York Osteopathic Clinic.

“The contention of respondent is that the part performed by Dr. Helmer in the formation of the New York Osteopathic Clinic was merely as one of a. number of other osteopathic physicians and their friends and that the enterprise was the product of the joint efforts of the members of the Osteopathic Societjr of New York City and not the product of the personal efforts of Dr. Helmer. Hence it is argued that Dr. Helmer himself'may not be said to have succeeded and that the clinic should not be designated as ‘his’ clinic.

“Petitioner must show (1) that Dr. Helmer succeeded; (2) in ‘establishing’ a clinic; (3) that it was ‘his; clinic; (4) that the clinic was for the advice and treatment of patients under the School of Osteopathy, and (5) that the establishment was prior to the death of testator.

“There is nó controversy that the clinic established was under the School of Osteopathy nor that it was before his death. This eliminates (4) and (5) from the discussion.

“It will be helpful to endeavor to ascertain what the testator means by the word ‘establishing.’ The word ‘establish’ in the standard dictionaries is defined in part as follows:

“ ‘1. To make stable, firm.

' “‘2. To put or fix on a firm basis; settle stably or fixedly; put in an efficient state or condition.

“‘3. To confirm or strengthen; maleé more stable or determinate.

“‘4. To confirm, by affirmation or approval; sanction; uphold.

“ ‘5. To make good; substantiate, show to be valid or well grounded; cause to be recognized as valid or legal; cause to be accepted as true or as worthy of credence.’

“In its primary sense the meaning is ‘to settle or fix firmly.’ 2 Words and Phrases (2d Series) S23. Other definitions are' ‘to put * * * in an efficient state or condition.’

“Hence, one who completes the original enterprise or plan of another or who places it in an efficient state or condition may be said to' establish it.

“It is not necessary to discover the original idea or plan, actively and exclusively found and erect an institution based on the plan and place it in a position fully to perform all its functions in order to establish it.

“The absolute and positive fulfillment of the condition to the highest degree, character or extent that may be imposed, is seriously modified by the testator because after stating that if Dr. Helmer succeeds in establishing his clinic then he gives $25,000 to him for hi® assistance in establishing such clinic. If it must be fully completed then how could it be possible to use money to assist in completing it? This demonstrates the different meanings attached to the word ‘establish’ adopted by testator, and indicates that Dr. Helmer need not be the sole .designer, founder, constructor, supporter and director of the clinic.

“Dr. Helmer in fact was the leader in the early days of the struggle of the adherents of osteopathy for recognition of their school of treatment of disease. He talked of bis own clinic, he readily and heartily joined others in the work and in many respects led the efforts in organizing the New York Osteopathic Clinic; he made it stable and firm by hi® efforts before and during the time of its incorporation and efforts to secure a license. He helped to strengthen'it, to make it good, and caused it to' be worthy of credence.

“The fruit of the efforts of Dr. Helmer is the clinic fully performing the purposes of those interested in it and actually advising and treating patients. Without the work of Dr. Helmer the clinic would not have been functioning at all or to the extent it was at testator’s death.

. “The result need not necessarily be the sole product of personal effort. One who is effective usually organizes the effort of others. Most of our great captains of industry have established their business by this method.

“The testator, by the ninth provision of the will, meant something effectual. As construed by respondents he did not refer to the New York Osteopathic Clinic. If not to that, then to what did he refer? The rational meaning of the will is that Mr. Jenkins knew that Dr. ITelmer was devoting his time, thought and effort to some worthy cause that enlisted the sympathy of Mr. Jenkins, a business man of great experience and ability and caused him to endorse it and to' further the effort of his friend Dr. Helmer and gave it a large sum of money. If Dr. Helmer had no clinic in mind, or was not interested in any clinic, then Mr. Jenkins was dealing in meaningless words. Such construction is the inevitable result of the logic of the contention of respondents, because they fail to' prove the existence or contemplation of any other clinic.

“If Dr. Helmer alone, in a small office, advised and treated patients free of charge by the method of the School of Osteopathy prior to the death of testator, the respondents would be compelled to admit that the condition precedent had been performed. No such single-man affair would accomplish any suelp general good as is fairly reasonable to believe the New York Osteopathic Clinic has done or is doing. Mr. Jenkins was undoubtedly aware of that and intended to’ place his money in the most effective means of .doing this great good for a large number of patients through the supervision and direction of his friend.

“The New York Osteopathic Clinic was known to testator as the clinic of Dr. Helmer and testator naturally designated it as ‘his’ clinic.

“Respondents also contended that between the execution of the will and death of Mr. Jenkins, Dr. Helmer must succeed in establishing his clinic. No such requirement is inserted in the will, nor is it necessarily contemplated by the surrounding circumstances. In fact, Dr. Helmer could have performed the conclition precedent by succeeding in establishing his clinic at any time before the death. The ninth paragraph provides, ‘If by the time-of taking effect of this my will he has failed to establish the clinic * * * the legacy -shall lapse * * The testator is conclusively presumed to know the law and therefore he knew the will would take effect at his death.

“In seeking the intention of the testator as shown by his will, and in giving every word of the ninth provision its fullest significance, and considering the surrounding circunistances and the purpose and effort of Dr. Helmer and the knowledge of them which the testator no doubt possessed, this clinic must have been known to the testator as the clinic which was the subject of Dr. Helmer’s efforts, hence he ‘succeeded’ in ‘establishing’ ‘his clinic.’ Dr. Helmer was the leader'of the profession. There was general recognition made of the fact that his leadership was necessary to the success of the enterprise.

“The executors, the respondents herein, immediately after the death of Mx*. Jenkins, wrote to Dr. Helmer as follows:

“ ‘We beg' to inform you that under the will of Alfred B. Jenkins, of West Orange, New Jersey, a bequest was made to you as stated in the enclosed copy of Mr. Jenkins’ will.’

“In response, Dr. Helmer caused to be written to the executors a letter in part as follows:

“ ‘Being unable at this time to visit you in regard to the matter of the legacy referred to in article IX of the last will and testament of the late Alfred B. Jenkins. I beg to advise that the Osteopathic Clinic in which I am interested, and which I was instrumental in organizing, is officially known as the New York Osteopathic Clinic, Inc., now located at 35 East Thirty-second street, of which William Strother Jones is president. He will be able to give you all other proof that you may want regarding the organization and conduct of the- clinic..’

“This letter was admitted merely as evidence of the receipt of the previous letter from the executors but not as competent-evidence in any way to establish the truth of the facts stated in the letter itself. It may be, that as a statement in the regular course of business by a person since deceased, a disinterested third party at the time, making a statement disclaiming any personal interest whatsoever, that the contents of the letter are evidence of those facts. The court, however, will not now change the railing at the hearing.

“The contention of respondents is that if Mrs. Helmer personally received the money ultimately under the will of Dr. Helmer, in which she is named the sole legatee, that she may use it as her own. The will of Mr. J enkins must be construed in relation to the facts existing at the time of his death. Then Dr. Helmer was alive. The will of Mr. Jenkins does not provide that if Dr. Helmer dies shortly after the death of Mr. Jenkins that the fund shall vest in some other person. It seems to be perfectly clear, however, that the New York Osteopathic Clinic will succeed in an action against petitioner seeking to establish a charitable use directly for its own benefit, particularly in view of the straightforward admission contained in the letter written by Dr. Helmer on the 5th day of March, 1917, and signed on his behalf by the petitioner personally.

“Under all the circumstances it seems reasonable to conclude that the condition precedent was fulfilled. Tin; intention of the testator was to give the fund to Dr. Helmer to be applied by him for the purpose of further establishing his clinic for the benefit of patients in the event that such progress had been made as was sufficient to- show that a foundation had been laid and the continuance of the clinic was reasonably assured at the time of the death of the testator.

“Petitioner is therefore -entitled to judgment, with costs.”


text:
    In the matter of the probate of the will of Frederick S. Benson, deceased.
    [Decided April 28th, 1922.]
    On appeal from a decree of the prerogative court advised by Vice-Ordinary Griffin, whose opinion is reported in 92 N. J. Eq.' 61S.

    Messrs. Heymcm & Heymaru, for the appellant.

      Messrs. Wall, I-IaigM, Carey & Hartpence, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filled in the court below by Vice-Ordinary Griffin.

For affirmance — The Chiee-Justice, Swayze, Trenct-iard, Parker, Bergen, Minturn, Halisci-i, Black, Iyat,zbnbaci-i, White, Heppenheimer, Williams, Gardner, Ackerson, Van Buskirk — 15.

For reversal — None.


text:
    In the matter of the estate of F. Augustus Heinze, deceased.
    [Decided June 19th, 1922.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Griffin, whose opinion is reported in 98 N. J. Eq. 321.

      Messrs. Coilim & Corbm, Messrs. Wall, Haigld, Carey & Hart-pence and Messrs. McCarter & English, for the appellants.

      Messrs. Treacy é Milton, for the respondent.
   Per Curiam.

Albert C. Wall, substituted administrator of the estate in New Jersey of F. Augustus Heinze, deceased, filed his petition, report and account in the court of chancery, alleging that certain matters set out therein were required to be adjudicated by the court as a preliminary to the final passage of his account; and praying for the adjudication thereof, the allowance of his account as stated therein and the fixing of a suitable counsel fee and compensation for liis services as such administrator. The matter came on to be heard before Vice-Chancellor Griffin, all parties in interest being represented, and, after consideration, a final decree was eutered therein. From this'decree Walter A. Fullerton, the domiciliary' administrator of the Heinze estate; the Assets Development Compairy, an alleged creditor of that estate; and Mr. Wall, -the substituted administrator of the estate in New Jersey, have each appealed.

• So far as those portions of the decree which are attacked by Mr. Fullerton and by the Assets Development Company are concerned, we are content to affirm, for the reasons stated in the opinion of the learned vice-chancellor.

The appeal of Mr. Wall presents the following situation: It having appeared upon the hearing before the vice-chancellor that the Assets Development Company had brought suit against him as administrator in New Jersey, that such suit had resulted in a judgment against the development company, and that the latter had appealed from that judgment to this court, the vice-chancellor considered that the determination of the question of passing Mr. Wall’s account as a final account, and his consequent discharge as administrator, should be continued until the rendition of judgment by this court upon the appeal of the Assets Development Company, for the reason that, until the question of the liability1' of Mr. Wall as administrator in New Jersey to the Assets Development Company was determined, it was impossible to say finally whether or not that claim should be included in his account. We think this view was sound, and that the portion of the decree so adjudging should be affirmed.

Mr. Wall also complains that the vice-chancellor improperly refused to fix his compensation as administrator and fix an allowance for counsel fees. But we think that it was not proper for the vice-chancellor to do this until the account itself was finally passed, because, until the question of his liability to answer the claim of the Assets Development Company was finalty determined, the amount of his compensation as administrator and the extent to which counsel fees should be allowed him could not be accurately determined. As we construe this portion of the decree, it recognizes the right of the administrator to. compensation and an allowance for counsel fees, but merely postpones the fixing of the amounts until the final passing of the account. So construed, we concur in the view of the learned vice-chancellor.

Mr. Wall also complains that -the vice-chancellor did not presently compel the American Smelting and Refining Company, a New Jersey debtor of the Heinze estate, to pay over to Mr. Wall, as New Jersey administrator, the amount of .its indebtedness. We -think the action of the vice-chancellor in this regard also was proper. Mr. Wall was only entitled to receive from the amount of that indebtedness a sufficient sum to pay New Jersey creditors of decedent’s estate, and his (Wall’s) compensation for services, expenses and counsel fees. Admittedly, the only New Jersey creditor of that estate is the Assets Development Company. If its claim against Mr. Wall shall be finally adjudicated in its favor, then he is entitled to receive from the American. Smelting and Refining Company enough of its indebtedness to satisfy that claim, and also to satisfy his claim for compensation and counsel fees. If, on the other hand, the claim of the Assets Development Company shall finally be adjudicated against it, then Mr. Wall’s claim against the debt of the American Smelting and -Refining Company must be limited to such sum as the court shall hereafter determine will be a reasonable compensation for his services as New Jersey administrator, plus such additional amount as will be due to him for expenses and counsel fees.

We conclude, therefore, that that part of the decree which is the subject of Mr. Wall’s appeal should also be affirmed.

No. 18—

For affirmance — The Chief-Justice, Swaxze, Trenci-iard, Parker, Bergen, Minturn, Black, Katzenbach, White, Heppeni-ieimer, Williams, Gardner, Ackerson, Van Bus-kirk — 14.

For reversal — None.

No. 20 — •

For affirmance — The Chief-Justice, Swaxze, Trbnohard, Parker, Bergen, Minturn, Black, Katzenbach, White, Heppeni-ieimer, Williams, Gardner, Ackerson, Van Bus-kirk — 14.

For reversal — None.


text:
    Joel E. Crandall, respondent, v. Charlotte Stella Graham et al., appellants.
    [Decided June 19th, 1922.]
    On appeal from a decree of the-court of chancery advised by Vice-Chancellor Lewis, who filed the following- opinion:
    “This is a bill for specific performance of what is contended by complainant to be an agreement for the conveyance of certain real property located at 119 Broadway, Paterson, New Jersey, owned by the defendant Charlotte Stella Graham, who is the wife of the defendant Nelson Graham.
    “The premises were leased to complainant by indenture dated February 1st, 1917, for the term of five years, from and after May 1st, 1917, which was duly executed by both Charlotte Stella Graham and Nelson Graham, her husband, and acknowledged by both, and also by Charlotte Stella Graham, separate and apart from her husband, before Thomas W. Randall, a master in chancery of New Jersey.. It was also sign'ed by Joel E. Crandall, lessee. It was not recorded. See section 8 of the Married Woman’s act (3 Oomp. Start, p. 3229).

    “Under the terms of the lease the lessee was to pay a yearly rental of $1,200, in monthly payments of $100 each, the water rent, the taxes in excess of $295.80 per annum, and any increased rate of premium for the fire insurance'that might be imposed. The .lessee was also obligated to make all inside- and outside repairs to all buildings and structures upon the premises, and keep the same in a good, suitable, and sufficient state of repair at his own cost and expense during the term of the lease, and at the expiration thereof’to surrender the premises in as good state and condition as reasonable use and wear would permit. Leave was also given the lessee to make certain extensive changes, alterations, and additions to the building within three years from the date of the lease, at his own cost and expense.
    “The lease also contained the following provision:
    “ ‘And the said party of the first part do further covenant and agree to and with said party of the second part that he may purchase the premises hereby leased át any time within three years from and after May 1st, 1917, for the sum of eighteen thousand dollars. This option to be and become absolutely null and void unless exercised prior to May 1st, 1920, and time to he of the essence hereof, and the party of the second part to give the party of the first part three months’ notice in writing of his intention of purchasing said premises upon the above terms within three years, as aforesaid, if he should elect so to do. And upon the sale and conveyance of said •premises to said party of the second part this lease to terminate and to become null and void.’
    “Complainant testified that he spent about $5,400 for improvements on the property in a little over two years, and that on November 28th, 1919, he served on the defendant Charlotte Stella Graham the following notice:
    “ ‘November 28, 1919.
    “ ‘Mrs. Charlotte S. Graham — Dear Madam: I hereby wish to notify you 'that I intend to take advantage of my option in my lease of your property at 119 Broadway, Paterson, N. J., on or before May 1st, 1920.
    “ ‘Very truly yours,
    “ ‘Joel E. Crandall.’
    “He says in this respect:
    “ U handed her the envelope, telling -her there was my notice of acceptance of the option and my check for the taxes/
    “On April 21st, 1920, complainant caused to be mailed to Charlotte Stella Graham and Nelson Graham, her husband, and to John H. Banta, Mrs. GrahanTs son, a notice, of which the following is a copy:
    “ ‘To Charlotte Stella Graham and Nelson Graham, her husband:
    “ ‘You are hereby notified that in accordance with your lease made on February 1st, 1917, in and by which you rented to me, the undersigned, the premises known as 119 Broadway, Paterson, N. J., for the term of five years, and in which lease you granted to me a three-year option to purchase said premises any time within three years from May 1st, 1917, for the sum of eighteen thousand dollars ($18,000), provided I gave you three months’ notice in writing of my intention of exercising said option and purchasing said premises; and in so far as said notice has been served on me of my intention to exercise my option of purchasing under said lease, you are hereby further notified that I am prepared to pay you the full mount of said sum of eighteen thousand dollars, and have appointed Saturday morning, April 24th, 1920, at the office of John H. Reynolds, in the Paterson Savings Institution, Paterson, N. J., at ten o’clock in the forenoon, at which time and. place I shall expect a deed from you for said premises upon the payment of said amount.
    “ ‘Dated April 21st, 1920.
    “ ‘Joel E. Crandall.’
    “Mrs. Graham said that she never received the notice of November 28th, 1919, but she admits having received the notice of April 21st, 1920. Mr. Banta also received that notice; but the husband, Nelson Graham, testified that when he was notified that there was a registered letter at the post-office for him, he went there to1 see about it, and upon learning from whom it came, said: 'It was so much past the time of that option, that I would not receive it/ It was returned by the post-office department to the sender, undelivered.
    “Complainant testified that with the no lice of November 28th, 1919, he also delivered to Mrs. Graham a check for $58, being excess taxes which it was incumbent upon him to pay under the terms of the lease. Mrs. Graham admits receiving the check, and, indeed, she cashed it on December 1st. She says, however, that she received no notice of the acceptance of the option that day.
    “Mrs. Crandall, the wife of the complainant, testified that she was present when Mr. Crandall wrote the notice of November 28th, 1919; and Miss Ida M. Titus, a. relative, who was visiting them, was present at the same time. She testified that she sawi Mr. Crandall write the notice, and that she read it after it was written. This followed immediately after a discussion among them regarding the purchase of the property by Mr. Crandall, and ways and means of financing the purchase; and that having-reached a decision that the property should be purchased, Miss Titus had agreed to. invest in the property and to help Mr. Crandall, to some extent, to- finance the operation. She also said that she was in a position to do at the time.
    “Neither Mrs. Crandall nor Miss Titus, however, could say of their own knowledge that Mr. Crandall had actually served the notice on Mrs. Graham.

      “So far as the direct affirmative proof on this point is concerned, it consists of Mr. Crandall’s assertion that he delivered the written notice of November1 28th, 1919, to Mrs. Graham with the check for $58 for taxes, at the same time saying to her that his notice of acceptance of the option was there with the check for the taxes; Mrs. Graham’s positive denial of ever having seen ox received the notice raises the issue as to which version of the transaction is to be accepted.
    “(1) It is to be observed, however, that there is no direct refutation of the service of the notice by Mr. Crandall; Mrs. Graham’s apparent refutation goes simply to her not having-seen or received -it. ■ If Mr. Crandall gave it, it was not essential to its effective operation that Mrs. Graham should have read it.
    “It also appears from the testimony that Mr. Crandall endeavored to see or get in communication further with Mrs. Graham about the • acceptance of the option, and that he had difficulty in doing so. Pie said: ‘I never could talk to either her or her husband.’ And on one occasion, early in March, 1920, when he mentioned the subject to her, she told him that ■she did not want to talk to him, £and slammed the door in my face.’ William Stott was present on that occasion, and he testified to this effect:
    “ ‘A. Mr. Crandall handed Mrs. Graham an envelope, and then he said, “I wish to speak to you about the purchase of the property for which 1 have the option.”
    “ ‘Q. What did she say?
    “ ‘A. She said, “I don’t wish to speak to you,” and shut the door.’
    “The testimony of Mrs. Graham and of her husband, and the communication from the son, all tend to show that the defendants were extremety anxious to avoid Crandall’s communicating with them; .even to the submitting- of the matter by Mr. Banta, her son, to the legal department of the. Prudential Insurance Company, with which he was connected as manager, and whose stationery he used, for such effect as it might have.
    “By the notice of April 21st, 1920, complainant signified his complete willingness to accept a .deed for the property and to pay the purchase price under the agreement; but Mrs. Crandall did not appear at the time and place fixed, either to comply with her part of the agreement or to state any grounds for her refusal so to do,- having previously, through Banta, notified Crandall of her refusal to be present.
    “ ‘April 22, 1920.
    “ ‘Mr. E. H. Lambert, 48 Church Street, Paterson, New Jersey— Dear Sir: Tour letter of April 21, inclosing a notice to have my mother, Mrs. Graham, meet with you and Mr. Crandall on Saturday of this week, in connection with the purchase of her property has been received.
    “ ‘After again taking the matter up with our legal department, I once more ask that you or Mr. Crandall be good enough to submit proof that notice was given Mrs. Graham prior to February 1, 1920, of Mr. Crandall’s intention to buy. ,
    “ ‘The notice which you sent me, simply over Mr. Crandall’s signature, is proof of nothing, and unless you can submit to me or my mother real tangible proof between now and Saturday morning, it will certainly and positively not be convenient for Mrs. Graham to be present at any such meeting which you and Mr. Crandall have evidently taken upon yourselves to arrange.
    “ ‘Very truly yours,
    “ M. H. Banta.’
    “(2) Nader section 39 of the Conveyance act, as amended by the act March 21st, 1912 (P. L. 1912 p. 158), read in conjunction with section 21 of the Conveyance act, as amended by act April 14th, 1914 (P. L. 1914 p- 806), and sections 5 and 14-of the Married Woman's act (8 Comp. Stat. p. 8226), an ■‘'agreement or sale’ of lands of a feme covert, executed by her, in which her husband joins, and which has been acknowledged by her as provided therein, can be specifically enforced in favor of the vendee in this court. Goldstein v. Curtis, 68 N. J. Eq. 459; 52 Atl. Pep. 218; Ten E'yclc v. Seville, 64 Ar. J- Eq. 611; 54 Atl. Rep. 810; Wolf v. Meyer, 75 N. J. Lam 181; 66 Atl. Rep. 959.

    “(3) An option of the purchase of lands demised contained in a lease constitutes a binding agreement on the part of the lessors to sell, which cannot be receded from, if the lessee exercises the option according to the terms of the instrument. Page v. Martin, 46 N. J. Eq. 585; 20 Atl. Rep. 46; Hamralty v. Warren, 18 N. J. Eq. 124; 90 Am. Dec. 618; Scott r. Shiner, 27 N. J. Eq. 185; Lister Agricultural Chemical Woi-hs v. Selby, 68 N. J. Eq. 271; 59 Ail. Rep. 247. This ease is not like those where it is sought to establish, a contract to convey. The contract here admittedly was made, and there is no evidence to show that it was otherwise than fair in its terms when made.
    “The defendants seek to avoid specific performance on the ground that complainant did not give effective notice of his intention to exercise the option contained in the contract.
    “(4) The burden of proof to establish a legal defence is on the party asserting it. Page v. Martin, supra.

    “ ‘And, where a defendant pleads an affirmative defence or sets up in his answer facts in avoidance, the burden of proof is upon him/ 16 Gyc. 931; Behr v. Ilurwitz, 90 N. J. Eq. 110; 105 Atl. Rep. 1/.S6.

    “(5 and 6) The evidence in this case satisfied me that the notice which complainant states he served on the defendant Charlotte Stella Graham, on November 28th or 29th, 1919, signifying his acceptance of the option contained in the lease in this cause, was so served upon her;' and that signification of complainant’s intent was conveyed effectively under the terms of the option. No specific form of notification was required, and I cannot escape the conviction that defendants knew of complainant’s desire to exercise the option within a competent period under its terms.
    “The defendants, after making the lease and giving the option, undoubtedly repented their bargain because of the general enhancement of real estate values, and were extremely anxious that the complainant would not avail himself of it. Not only has the property increased in value, as admitted by Mrs. Graham in her testimony, but the complainant has likewise put improvements on the property costing him about $5,400. The probabilities are that he would want to take advantage of the option, as it was so greatly to his advantage to do so, and it is hardly conceivable that he would do otherwise. On the other hand, it is in evidence that the defendants were anxious and afraid lest he might take advantage of the option, as would be the most natural thing'1 for him to do. Of course, they did not have to, nor did they, notify him that they would like to hear as to whether he intended to avail himself of the option. If he defaulted it would be very much to uheir advantage. The probabilities all favor his acceptance of the option, unless he were utterly devoid of common -sense. I was impressed favorably by the complainant’s testimony and demeanor, and I feel confident that he was telling the entire truth. I feel equally confident that Mrs. Graham, when sire received the check for taxes, must have received the acceptance of the option which was inclosed therein. She may have forgotten that she received it, but however that may be, I am satisfied that she did receive it.
    “(7) The Grahams stood by and saw and permitted Crandall to spend his money ($5,400) on the building, and, in the face of his evidence and patent- intention and efforts, though unskillfully put forth, should now be estopped from denying Crandall’s exercise of the option. And if the option could be construed to permit it to be exercised at any time down to May 1st, 1920, I think the notice of April 21st would be a sufficient exercise of the option.
    “Mr. Crandall made all the preparation for the giving of tire notice on November 28th, 1919, and the probabilities favor his having done so, despite the defendants’ maneuvers to avoid receiving Crandall’s- notices. It is not probable that Crandall would have spent all this money on the property had he not intended to exercise the option.
    “Although the notice of April 21st, 1920, was not a three months’ notice, strictly in accordance with the terms of the contract, and defendants could not have been compelled to give a deed before three months thereafter had elapsed, still that period has now gone by, and assuming that to be good notice, there is no reason why specific performance should not now be decreed. Crandall states (testimony, page 14) that he is still -willing to pay the purchase price.
    “There is nothing in the case to -show that defendants will suffer any damage by specific performance that would not be compensated for by payment of interest on the money due to date. Day v. Devitt, 79 N. J. Eq. 842; 81 Atl. Rep. 868. The property is worth considerably more than it was at the time it was leased, and this is doubtless their reason for avoiding specific performance, plus the desire to get the benefit of the $5,400 spent on the property by Crandall. I am satisfied from the circumstances disclosed by the proofs, from the attitude and. demeanor of the witnesses on the trial, and of the defendants during the term of the option, from the testimony of Mr. Crandall, and from the circumstances 'surrounding the whole transaction,' that Crandall has told the entire truth regarding the acceptance of the option on November 28th or 29th, 1919.
    “The defendants seem to have had advice ail the way through, in regard to the drawing of the lease, and everything connected with their side of the ease, but Crandall, on the other hand, apparently acted for himself mainly. He could have protected himself in regard to the expenditure of the $5,400, and it seems difficult to believe that he would not have done so if he had thought there was any doubt about his ultimately becoming the owner of the property. He made no attempt to bolster up his case, as he undoubtedly could have done, and his attitude convinced me of his trustworthiness.
    “Crandall testified that the check for $58 for taxes was folded up inside the notice of his acceptance of the option at the time he handed the envelope to Mrs. Graham on November 28th or 29th; and there is no evidence 1» specifically refute that, except that of Mrs. Graham, who says that she did not see or receive the notice; she does not say that it was not served upon her in the manner testified to by Mr. Crandall. It is inconceivable that she should have received the check without seeing or gaining knowledge of the notice, except on the theory that she, surmising from what Crandall told her when he delivered the envelope to her that the notice of the acceptance was there, deliberately shut her eyes to it and avoided a realization of its contents, just as her husband did with regard to the notice of April 21st, 1920, which he refused to receive from the post-office department when he learned who it was from, because, as he himself said, he then knew that it appertained to the option.
    “I am not unmindful of that trait in human nature which leads one to avoid, if possible, the performance of an obligation, which, because of changed circumstances has become disadvantageous to the obligor; and when, to recede from it would be greatly to his advantage; and that the defendants in this cause would be free from this trait is, perhaps, expecting too much under the circumstances disclosed. And likewise, it is extremely improbable that Crandall was ignorant of the fact that the property had greatly increased in value, as admitted by Mrs. Graham on her cross-examination, and that he should be unaffected by that fact. Certainty, no man in possession of his normal faculties would allow such advantage to escape him, especially after he himself had spent $5,400 in improving the property.
    “(8) The husband, Nelson Graham, in joining in the lease, bound himself to the contract to convey which it contained {Page v. Martin, supra), thus made effective by the acceptance of the option by complainant; and it was unnecessary to serve notice of the acceptance of the option on him. His rights in the property of his wife were relinquished when he joined in the lease containing the agreement to convey, and it was only necessary thereafter for the lessee to signify his acceptance of the option to the wife, who- wias the owner of the land.
    “Complainant tendered himself ready and willing to accept a deed pursuant to the terms of the contract; and the defendants refused to comply with their part of the agreement.
    “Under thesé circumstances I am convinced that complainant is entitled to a decree for specific performance as prayed, and I will advise a decree accordingly.”

      Mr. Wood McKee, for the respondent.

      Mr. William B. G-ourley, for the appellants.
   Per Curiam.

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

For affirmance — The Chief-Justice, Swaxze, Tbenchard, Parker, Bergen, Minturn, Black, Katzenbaci-i, White, Hebpenheimer, Williams, Gardner, Ackerson, Van Bus-kirk — 14.

■For reversal — None.


text:
    Alfred E. Kenney, trustee, complainant-respondent, v. Elmer Kins et al., defendants-respondents.
    [Decided June 20th, 1922.]
    Appeal of Charles J. Leonori, administrator, &c., defendant-appellant.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, who filed the following opinion:
    “At the conclusion of the testimony some time ago, I reached what I. thought was the true solution of this controversy, and the arguments of counsel, just finished, sustain the view I then entertained. The case hinges, for the most part, if not entirety, on the testimony of Mr. Rose, with which I was very much impressed, and, I think, counsel, too. It was given in a frank and straightforward manner, with the ring of truth in it, and it came from what I regard as a most satisfactory and dependable source. Mr. Rose is a member of the Pennsylvania bar and a representative citizen of high standing in his community. He has no' interest in the outcome of the case, but he came to testify because, as he said, grievous charges of fraud were made against him in the pleadings and he felt that his professional reputation would not permit him to allow them to gO' unnoticed.
    “The facts, as given by him, are these: Queen had a lawsuit pending against Jennings to recover $907,000 commissions due him as broker in the sale of oil stocks. He owed Rose a great deal of money, loaned from time to time, and to secure this debt he assigned to him $302,333 of the broker’s commissions — that is the meaning of the assignment — one-third of the $900,000, or $300,-000 — at least counsel have not challenged that as the correct interpretation. This was the first assignment. Other assignments of the $900,000 were made from time to time to others, three or four. At the first trial of the suit of Queen against Jennings, there was a verdict for a large sum of money — was it $480,000 ? — which, was later set aside as excessive. On the eve of the second trial, the parties to -that suit, Jennings and Queen and Queen’s assignees — the suit was in the name of Queen and the assignees, or to the use of the assignees — got together and compromised on $375,000, and by stipulation the compromise took the form of a judgment in the supreme court for that sum, which runs to Queen and his assignees against Jennings — a practice with which I am not familiar. The compromise was not only between the plaintiffs and Jennings, but also- as between Queen and the assignees, the assignees, other than Rose, agreeing to allotments, and this was stipulated and made a part of the judgment. It came about in this way: On the eve of the second trial, Queen refused to take the stand and testify unless he were given $100,000, and unless Eose would be satisfied with $70,000, and without his testimony — he was the only on'e who knew anything of the transaction on his side — the whole affair would have gone by the board. It was a plain hold-up. Queen had his way. He was master of the situation, and it was agreed, under pressure, of course, that he should get the $100,000. After the assignees, other than Eose, were taken care of, and Queen’s $100,000, and the counsel, there was left $114,000 that fell toi Eose under his assignment, but Queen objected to Eose getting more than $70,-000 as'his portion of the fund. He wanted the balance for himself, but Eose would not yield. Queen bulldozed, but he could not budge Eose in his determination not to give the excess ten Queen, but, finally — there was no other way out — Eose agreed to give it to Mrs. Queen, because, as he said, of his sympathy for her in her financial distress; he had known her and her family for years, and, as I understand it, there had been a long-standing friendship between the Eose and Queen families — or was it Mrs. Queen’s family? — and it was so arranged, and the surplus was assigned to. ICenne3r, the complainant, in trust for her. The fund of $375,000 recovered from Jennings was paid to Mr. King, the plaintiff’s attorney in the lawsuit. That was part of-the stipulation, as I recall, and out of it King lias made payments, as lie was authorized to do, the propriety of which is not disputed. A creditor of Queen’s — Queen is a non-resident — attached the moneys in King’s hands, assigned by Rose to Mrs. Queen’s trustee, Kenney. Kenney filed this bill against King to recover on his assignment. The attaching creditor is a party and he has couni er-claimed, charging that the assignment by Rose to Mrs. Queen’s trustee was a fraud upon him, and that the trustee holds the assignment in trust for Rose — that the money in King’s hands is Queen’s property, and he asks that it be appropriated in payment of his debt. The question resolves itself into this, as I take it: To whom, rightfully, did the money, the $114,000 balance, belong at the time Rose assigned to Mrs. Queen’s trus-' tee ? Of that I have no doubt. Queen owed Rose far more than that sum at the time. Rose says so, and he fortified his testimony, with documentary evidence of the indebtedness, and his testimony stands uncontradicted, and, of course, unimpeached. His assignment of the fund was prior in point of time to anjr other, and superior to all other, assignments, and it covered nearly the whole of the sum recovered from Jennings. What remained after the payments of the $100,000 to Queen, and fees to counsel, and shares to the other assignees, he was, in fact and in law, entitled to and it was his right to do with it as he pleased. Surely, at no stage did it, or any part of it, belong to Queen. The hold-up tactics of Queen and the ensuing impasse did not change the ownership, though, doubtless, they furnished the motive for the gift to Mrs. Queen. The subject of the gift, the money, was the property of Rose and the complainant is entitled to a decree directing King to pay it to him.”
    White, J. (dissenting).
    My vote for reversal is based upon the fact -that when the parties interested were confronted by the necessity of reducing the amounts of their respective shares in the commission of some $900,000, which they claimed Jennings owed Queen (through whom they claimed as assignees of various shares), in order to meet the compromise proposed on the eve of the second'trial of tlie suit against J ennings, of something like one-third of the sum claimed, Queen, who was a necessary party to the agreement of reduction (not having assigned all his interest), refused to come into the agreement unless Eose (one of the assignees) would place $44,000 of the reduced amount he, Eose, was to receive, in trust for the benefit of Queen’s wife, who had no legal right thereto, and Eose as a result of this stand on Queen’s part, agreed to make this concession and to place this much of his share so in trust. Eose claims he made this concession because of sympathy with Queen’s wife, whose family and Eose’s family had been friends for many years. I think the moving cause, however, was Queen’s refusal to let the compromise go through unless the concession were made, and that the consideration for the concession was Queen’s entering into the compromise agreement. Under these circumstances, I think the legal result was the same as if it had been Queen’s money instead of the money of Eose, which was so put in trust, and, consequently, that Queen’s creditors are entitled to it.

      Messrs. Ziegner & Lame, for the defendant-appellant Leonori.

      Messrs, Lam, Tamblyn ,<& Colyer, for the complainant-respondent.

      Messrs. King & Vogt, for the defendants-respondents.
   Per Curiam.

We agree with the finding of facts by the vice-chancellor and the propriety of the decree based on those facts. The decree is therefore affirmed.

For affirmance — The Chief-Justice, Swayze, Trbnchard, Parker, Bergen, Minturn, Black, Katzenbach, Heppenheimer, Williams, Gardner, Ackerson, Van Buskirk — 1-3.

For reversal — White—1.


text:
    Alfred E. Kenney, trustee, &c., complainant-respondent, v. Elmer King et al., defendants-respondents.
    [Decided June 20th, 1922.]
    Appeal of John P. Eamsey, administrator, &c., defendant-appellant.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Baches, whose opinion is printed with the last preceding case.

      Messrs. McCarter & English, for the defendant-appellant. Eamsey.

      Messrs. Lum, Tamblyn & Colyer, for the complainant-respondent.

      Messrs. King & Vogi\, for the defendants-respondents.
   Per Curiam.

We agree with the finding of facts by the vice-chancellor and the propriety of the deciee based on those facts. The decree is therefore affirmed. ■

For affirmance — Ti-ie Chief-Justice, Swayze, Trenohard, Parker, Bergen, Minturn, B,lack, Katzenraoi-i,. White, Heppenheimer, Williams, Gardner, Ackerson, Van Bus-kirk — 14. ....

For reversal — None.


author: Walker, Chancellor.

text:
    In the matter of the application of Roy U. Smith for sale of lands limited over.
    [Decided July 11th, 1922.]
    1. Under a will giving to three-named children the sum of $1,000, the gift to each is $1,000.
    2. Where the personal estate is exhausted, leaving nothing for the payment of legacies, and there is nothing in the will to the contrary, the legacies were chargeable .upon the lands devised.
    3. In theory and contemplation of law it is possible for a woman of any age to have issue, and the courts cannot speculate as to a claimed impossibility.

      -1. Under a will giving property in trust for the testator’s children during their lives, and providing that upon the death of each child one-third of the fund should be distributed to such child’s heirs, the trust was for life, with a vested estate in remainder to the heirs, subject to open and let in after-born heirs.
    5. Under such a trust, the trust fund cannot be distributed among the children through their living children’s consent, as it cannot be ascertained until their death who their heirs will be.
    On petition for payment of certain moneys, &c.

      Mr. Simon M. Seley, for the petitioners.

      Mr. William W. Evans, for the respondent.
   Walker, Chancellor.

The petition shows that Hiram J. Smith, late of the county of Passaic, departed this life April 29th, and that his will was probated May 12th, 1885; that in item 4 thereof he provided as follows:

“I give and bequeath to my children Sarah Frances Smith, William Henry Smith and Mary Anetta Smith the sum of $1,000 to be paid to the said Sarah and William I-I. Smith as soon as conveniently can be after my decease and to Mary Anetta Smith in the following manner, that is to 'say: to her mother my wife Sarah Elizabeth Smith in trust for her until she arrive at the age of 21 years then the principal and accrued interest shall be paid to her.”

Item 5 of the will provides, inter alia, that upon the death of testator’s wife, which has occurred, a fund of $5,000 be set apart in trust for Jos children during their lives, and upon the death of one of them, a third part thereof to be equally distributed to that child’s heirs, and sc on till the last child dies. The will further provides that after the death of testator’s wife his remaining estate shall be held for his children upon the same trust as that set up for the $5,000. Mr. Smith and his wife left three children, namely, Mary A. S. Anderson, Sarah P. S. Henry and William H. Smith. The petition avers that Mrs. Anderson has no children and that she is forty-seven years of age; that Mrs. Henry is a widow sixty-three years old, with two children, David Henry, thirty-six' years old, and married, and Helen Hanson, a married woman twenty-six years of age; that William H. Smith has two children, Eoy H. Smith, thirty-six years of age, and married, and Jennie S. Wainwright,- a married woman twenty-six years old.

In these proceedings the lands and premises belonging to the estate of Hiram J. Smith, deceased, were sold, and the net proceeds of sale, amounting to $6,756.38, have been paid into this court, where they still remain. The petition avers that no part of the legacies of $1,000 each to Mrs. Anderson and Mrs. Henry, children of the testator, have been paid, and that there are no funds or property of the estate of the testator to satisfy those legacies, except the proceeds of sale above mentioned. It is also averred that David Henry and wife and Helen Hanson and husband, David and Helen being the only children of the petitioner Sarah E. Henry, are willing to consent that the balance of the estate, after the payment of the $1,000 legacies have been made to the above-mentioned daughters of Hiram J. Smith, deceased, be distributed to and among the three legatees above named, upon condition that Eoy D. Smith and wife and Jennie S. Wainwright and husband enter into a stipulation consenting thereto; and the prayer is that distribution be ordered accordingly.

Presented with this application is an agreement signed by Sarah E. S. Henryk, widow, Mary A. S. Anderson and husband, William H. Smith and wife, and three named parties, being the only children of Hiram J. Smith, deceased; Helen Hanson and husband, the named party being the child of Sarah E. S. Henry; Eoy H. Smith and wife, Jennie S. Wainwright and husband, the two named parties being the only-children of William S. Smith (all being of full age) consenting to the distribution prayed for in the petition. It will be observed that this agreement is not signed by David Henry and wife, David being the son of Sarah E. S-. Henry.

The first question to be solved is, Is the legacy of $1,000 a gift of that amount to each of testator’s three children or of that sum to be divided among them ?

In Taylor v. Tolen, 38 N. J. Eq. 91, Chancellor Bunyon, quoting the bequest on p. 98, which is to the “Bochester New York Theological Seminary and to Hamilton Theological Seminary $10,000,” states (at p. 97) that a question was raised on this bequest whether the legacy was of $10,000 to both, or of that sum to each, and observed that it was $10,000 to each and not that sum to the two1; that the testator did not say, “I give to the two $10,000, but to one and [also] to the other that sum.”

This is entirely apposite as a precedent and quite dispositive of the question in favor of the petitioners, who will be paid if the next question, which is,- Are these legacies a charge on the testator’s lands, and are they distributable out of his residuary estate? is answered in the affirmative. I hold that they are such a charge because there is nothing in the will to the contrary, and as the estate has been settled and they were not paid out of personalty.

A legacy is chargeable upon lands devised by the same will where the personal estate has been exhausted. Methodist Episcopal Church v. Hammell, 73 N. J. Eq. 293. As the executors of Hiram J. Smith’s will have accounted and been discharged, these legacies are payable out of' his residuary estate, which is the proceeds of the sale of his lands.

The next question is, Can the children and grandchildren of the testator, who are in esse and sui juris, efficaciously consent to a distribution of the residue at this time and thus cut off hereafter-born grandchildren and other descendants, if any there may be, from participation in testator’s residuary estate ?

Counsel endeavor to avoid the doctrine of Riley v. Riley, 92 N. J. Eq. 465, wherein I held (at p. 471) that there is no period in the life of a woman when it is presumed in law that she may not possibly bear children, no matter how old she may be, by asserting that modern medical science seems to have limited the age of motherhood, and that considering the age of Mrs. Henry (sixty-two); Mrs. Smith (age not given) and Mrs. Anderson (forty-seven), there is only a remote possibility of either of them having a child in the future, and that therefore the court may grant the application for a distribution of the residuary estate without fear of any serious complication. No authority for this proposition is referred to, and I cannot adopt it. The court cannot speculate; and the parties cannot make the law, but must follow it.

In theory and contemplation of law it is quite possible that the three children of the decedent may have children in the future. Mrs. Henry, who is a widow, may remarry and bear children. Mrs. Anderson may again become a mother. Mr. Smith’s wife likewise.

In re Clement, 57 Atl. Rep. 724, Chancellor Magie held that the lands were limited over even after the life tenant reached the age of sixty-eight years, as the remainder would open to admit children subsequently born, and even under such circumstances the birth of issue must be presumed possible, saying in the body of the opinion that Blackstone declared that issue is always presumed to be possible until death, citing 2 Bl. Com. 125. And the court of errors and appeals in Oleson v. Somogyi, 93 N. J. Eq. 506, held that it cannot be presumed that a woman sixty-eight years of age has reached a time in her life when she is unable to bear a child, adopting my views expressed in Riley v. Riley, supra.

This trust estate is one for life in the three children, with vested estate in remainder in their heirs, subject to open and let in after-born heirs. Heater v. Van Auken, 14 N. J. Eq. 159; Miers v. Persons, 92 N. J. Eq. 17.

This suit for the sale of lands limited over, and at the foot of which this application is made, proceeded correctly upon the theory that these lands were limited over to an unascertained class—that is, to persons in esse and to those who may come into being. The original petition names the persons who are entitled to vested rights in the lands and avers that those who are entitled to prospective estates therein are “such other children as may be born of the bodies of Mary Annette Smith Anderson, Sarah Frances Smith Henry and William Henry Smith in lawful wedlock begotten.” And the master so reports in identical language. The petition should also have averred that the descendants of such children -are likewise entitled. The order for sale recites that the interest of the owners of the particular and future estates in the lands requires and would be promoted by a sale thereof, and the order confirming sale directs the master to make conveyance and provides “that such conveyance when made in pursuance of this order, shall c'onvey to the said * * * [purchaser], or his nominee, all the estate in said lands held or limited over to any of the persons named designated therein as present or prospective owners in being or not in being.”

Therefore, it cannot now be ascertained who will be the heirs of any one of the three children of the testator at the time of his or her death, and the trust fund cannot now be distributed even though the daughter of Mrs. Henry and the children of Mr. Smith have signed, and even though the son of Mrs. Henry were to sign, and he has not. Mrs. Anderson, as stated, has no children. This is not all: "When the children of the testator die their children, one or more of them, may be dead and their descendants, if they leave any, would b.e heirs of their grandparents, testator’s children.

We are here dealing with a scheme of distribution to a class (heirs) whose members are to be ascertained at the time of the death of an ancestor—that is, on the death of each one of the children of Hiram J. Smith, the testator. This conclusion makes it unnecessary to answer the fourth question, which is as to the effect of the non-signing of the agreement, by Mrs. Henry’s son and his wife.

Payment will be made to Mrs. Henry and to- Mrs. Anderson of their legacies of $1,000 each, with accumulations thereon; and the residue of the fund will remain in court to be distributed, one-third thereof to the heirs of each of Hiram J.. Smith’s children upon his or her decease.


text:
    Margaret Strobell Barbour, petitioner, v. William MacAllister Barbour, defendant.
    [Decided September 27th, 1922.]
    1. The time of the pendency of a bona fide suit for nullity of marriage cannot be computed as .part of the time of desertion relied on in a subsequent suit for divorce for that cause between the same parties.
    2. The settled doctrine of the law requires that pending a suit for the dissolution of marriage, and, equally, for nullity, the parties should not live together; and their living apart, pending such proceedings bona fide, does not constitute desertion within the meaning of the statute.
    On final hearing on master’s report and depositions ex parte.

      Mr. Charles M. Mason, for the petitioner.
   Walker, Chancellor.

The petitioner applies for an annulment of her marriage to the defendant on the ground that it was a jest, and, therefore, invalid. The proofs do not support the allegation, and I hold the marriage to be valid, and the petition must therefore be dismissed.

Petitioner’s solicitor has applied to me to insert in the decree of dismissal a saving clause that the dismissal shall be without prejudice to the filing of a petition for divorce for desertion. I think the petitioner would have a right to seek a divorce for desertion and that the decree of dismissal would not prejudice her in that regard even without the saving clause applied for. However, in the circumstances, the decree will contain a provision that the dismissal shall be without prejudice. But this cannot operate to avoid taking out from the period of alleged desertion the time during which this nullity suit has been pending. According to the allegation in the petition the marriage took place December 31st, 1920, and the defendant immediately left the petitioner and never has cohabited with her. Ordinarily, the period of desertion required by the statute for the granting of a .divorce would expire December 31st, 1922; but, if a petition for divorce were filed, say on January 2d, 1923, it would be premature, because the petition for nullity in this case was filed April 27th, 1922, and the decree of dismissal will be filed this date, September 27th, 1922. Therefore, five months will have to be added to the time of desertion before a petition for that cause may be properly filed; and for this reason: In a suit for divorce for desertion none of the time occupied by the pendency of a former bona fide proceeding for divorce by one of the parties against the other, can be computed as part of the time of the desertion in the later case. McLaughlin v. McLaughlin, 90 N. J. Eq. 322, and cases cited. The reason why the time of the pendency of the first proceeding cannot be computed as part of the time of desertion in the later one is that pending the first suit the petitioner could not cohabit with the defendant without condoning the offence charged. Ibid, (at p. 327.) And condonation would destroy the cause for action for divorce. Byrne v. Byrne, 93 N. J. Eq. 5. And, equally, it would destroy the cause for action for nullity of a voidable marriage, if, pending suit for nullity, the parties should reunite and cohabit,' for reunition and cohabitation would work a confirmation of the marriage and destroy the cause for action in the suit. See Ysern v. Horter, Advisory Master Stevenson, opinion filed September 7th, 1922, 94 N. J. Eq. 135. Confirmation of a voidable marriage validates, it and renders it unavoidable. And as the law sanctions the parties living apart during the pendency of a bona fide nullity suit, such separation cannot be said to be willful and obstinate, although continued, during that period. In fact, the settled doctrine of the law requires that pending a suit for the dissolution of marriage, and, equally, for.nullity, the parties should not live together; and their living apart, pending such proceedings bona fide, does not constitute desertion within the meaning of the statute. See Marsh v. Marsh. 14 N. J. Eq. 315.

Decree of dismissal accordingly.