text:
    Louis Hammer v. Emma Israel.
    [Decided February 6th, 1919.]
    1. The law, when justice requires, takes cognizance of parts of days. Gallagher v. True American Pub. Co., 15 N. J. Eq. 171, followed.
    2. In proceedings instituted in this court for the winding up of a partnership, alleged to be insolvent, after the granting of an order to show cause why a receiver should not be appointed, and the appointment of a temporary receiver, though before final decree of dissolution, creditors may not, either by judgments subsequently obtained arid issuance of execution and levy, or by issuance of execution and levy on judgments obtained prior to the award of the order to show cause and appointment of temporary receiver, acquire preferences. Ross v. Titsworth, 37 N. J. Eq. 333, distinguished.
    3. The rights of creditors to an equitable distribution of the assets of an insolvent partnership arises at least upon the property being taken over by a temporary receiver with a view to ultimate distribution, and after such a taking over liens cannot be obtained through legal proceedings.
    4. In proceedings to wind up the affairs of a partnership, creditors will be permitted to make levies so that, in case of a discontinuance of the suit, or for any other reason, the assets of the partnership are not distributed as the result of the suit, their legal rights will be protected.
    5. If it appears in proceedings to wind up a partnership that the partnership is solvent, or that the proceedings are not being taken in good faith with a view to ultimate distribution of assets amongst creditors and those entitled thereto, the court may permit judgment creditors to proceed with their legal remedies.
    6. In this state priorities of judgment creditors in distribution of assets are regulated by statute, and if there be no statute, there is no priority.
    7. Section 1 of an act for winding up voluntary associations, and associations with partnership liabilities (3 Comp. Stat. p. 3924), does not apply to the winding up of ordinary partnerships.
    8. Judgment creditors are preferred in the distribution of the assets of an insolvent corporation only so far as they may have acquired liens on the property of the insolvent corporation prior to the court taking control of the property for administration. Doane v. Millville Mutual Insurance Co., 45 N. J. Eq. 274.

    On bill. On application of judgment creditors for payment, &c.

      Messrs. Bilder & Bilder (Mr. Kaufman), for the judgment creditors.

      Messrs. Furst & Furst (Mr. George Furst), for the receiver.
   Lane, V. C.

Petitioners obtained a judgment in the district court of Newark at ten a. m., October 25th, 1918, against Hammer and Israel, partners, trading as the Eandi Shop: on October 25th, some time prior to nine forty-five a. m., a bill was filed in this court by Hammer against Israel alleging insolvency of the partnership, differences between the partners, discontinuance of the business, and praying for an accounting, the appointment of a receiver, the reduction of the assets to cash, the discharge of the liabilities and a dissolution; upon the filing of the bill an order to show cause was made, which order contained the following provision:

“Ordered, that Homer C. Zink, Esq.j be and he is hereby appointed temporary receiver pending the return of this order to show cause, to take charge of the property, estate, books and papers of the said copartnership business

the bill and order were marked filed by the vice-chancellor and the order therefore became immediately effective under rule 130; at ten a. ai., on October 25th, the receiver went into possession of the partnership propérty; at ten-fifteen a. m. an execution was issued upon the judgment of petitioners and delivered to the constable of the district court, who at ten tweny-five a. at. proceeded to the shop of the partnership and found the receiver in possession; the constable went through the form of making a levy; on the return of the order to show cause in this court on November 7th, Homer C. Zink was appointed receiver with full power to reduce to cash the assets of the partnership; to institute suits, to compromise with creditors, sell and convey all of the estate, rights and interests of the partnership and to hold and dispose of the proceeds thereof under the direction of this court; under order of this court, the receiver has disposed of all the partnership assets, free and clear of any pretended lien of petitioners.

The present application is for an order directing the receiver to pay to petitioners the amount of their judgment. No decree of dissolution has yet been made, although an order has been made directing creditors to present claims, and claims have been presented. The time prescribed by the order for the presentation of claims has expired. The cause is proceeding with due speed; the delay in obtaining the formal decree of dissolution is due to the fact that the partner Israel is a non-resident and must, under the present practice, he proceeded against by publication. (Practice changed by laws of 1919.)

The first question to be determined is whether the judgment creditor could, after the appointment of the receiver and his taking possession, proceed upon his judgment, obtained after the filing of the bill but before possession was taken by the receiver, by execution, and acquire a preferential right in the assets of the partnership. The law, when justice requires, takes cognizance of parts of days. Gallagher v. True American, Pub. Co., 75 N. J. Eq. 171. It is argued that upon the doctrine of stare decisis this court is concluded by the decision of Chancellor Runyon in Ross v. Titsworth, 37 N. J. Eq. 333. In that case a bill was filed By one copartner against another praying that an account might be taken of the partnership affairs, that a receiver might be appointed to take charge of the partnership matters under the direction of the court and for general relief. A receiver was appointed with full power to reduce the partnership assets to his possession and to take charge of the partnership matters under the direction of the court. Subsequent to the appointment of the receiver, judgments were recovered against the partnership, and applications were made by the judgment creditors for payment out of the partnership assets. No decree of dissolution had been entered, although the bill had been filed January 9th, 1883, and-the decision of the case was during the October term of court, 1883. The chancellor based his conclusion upon the fact that up to the decree of dissolution the proceedings were within the control of the parties, and the suit might at any time be discontinued, and that therefore it could not be said that the court had taken over the administration of the affairs of the partnership so that diligent creditors might not pursue their remedies at law. At the time of the decision there appeared to be two divergent views taken by the courts of two .other states, one represented by the cases of Adams v. Hackett, 7 Cal. 187; Adams v. Wood, 8 Cal. 153; 9 Cal. 24; Nagle v. Minturn, 8 Cal. 540, and the other by Holmes v. McDowell, 15 Hun 585; affirmed by the court of appeals of New York (76 N. Y. 596) on the prevailing opinion of the court below. The chancellor, adopted the rule he considered had been applied by the California courts and which was contended for by Learned, presiding justice of the appellate division, in dissenting in Holmes v. McDowell. The law with respect to the subject was in an evolutionary stage. I think all of the cases that had been decided were cited by the chancellor. The New York court considered that after proceedings had been instituted in a court of equity which would in all probability result in a taking over of the assets of a partnership for distribution amongst creditors it was unfair that creditors should be permitted to secure preferences amongst themselves; that the maxim “equality is equity” ought to be applied. The evil feared by the California court and by the chancellor which might be the result of the adoption of the New York rule was that the cause being one, up to the point of a decree of dissolution, strictly between the parties, it might at any time be discontinued without leave of court, and the partners would be enabled by such a proceeding, if the hands of creditors in the meantime were stayed, to secure what would be tantamount to a moratorium — a very real evil as I attempted to point out in Hitchcock v. American Pipe and Construction Co., 89 N. J. Eq. 440, in considering the practice of certain of the federal courts in permitting solvent corporations to seek the aid of the federal courts for a like purpose. (And in this connection my criticism of the 'federal practice was not so much directed to a taking over by the court of a solvent but embarrassed corporation with the view of ultimately liquidating all debts, but rather to the procedure which made no provision for notice to creditors, deprived them of their remedy at law, gave them no substitute remedy and which might result in preferences. I have no quarrel with the theory that assets of an insolvent corporation, partnership or individual should be treated as a trust fund for the protection of creditors pro rata, nor do I question but that equitably the theory can be extended over assets of a solvent person, natural or artificial. It is a fact that, in reality, a debtor holds equitably in his own right only the excess of his assets over liabilities. The rest he holds as trustee for his creditors. Starting with the common law idea that debt was so personal as to warrant imprisonment the law now recognizes assets apart from the individual as the real debtor. Such is the effect of the Bankrupt law. This idea can be extended too far. If courts axe to be permitted to take over the administration of solvent but embarrassed estates upon the trust fund theory, it must be with safeguards as to the rights of creditors not yet formulated.) Ho middle course seems to have suggested itself to the chancellor. In New York it appears that the result anticipated by Mr. Justice Learned and the chancellor actually occurred, and the New York rule finally has become settled, through a course of judicial decisions, that where the partnership is solvent, or where it appears that the proceeding is not being conducted in good faith, looking toward the ultimate distribution of the assets amongst creditors, judgment creditors may, by leave of court, be permitted to proceed to realize upon partnership assets. In re Thompson (Appellate Division, First Department, 1896), 41 N. Y. Supp. 740. In that case the appellate division permitted a judgment creditor to levy on assets of a solvent partnership in the hands of a receiver. Mr. Justice Bumsey, after stating that the receiver being in control of the property, it could not be interfered with without permission of the court, said: “If the partnership had been insolvent, there is no doubt that the court would not have permitted any creditor to levy upon the property for the purpose of securing a prior lien, but it would have held the assets to be divided equally among the creditors, because in such a case as that equality is equity. The reason is that, where the assets are not sufficient to pay all the debts, it would be manifestly unjust to permit any creditor, not having a lien by contract, to take sufficient of the assets to pay his own debt in full, and thereby deprive other creditors of the right to share pro rata in the property of the firm for the payment of their debts.” Referring to the case of Holmes v. McDowell he said: “But the order in that case was put solefy upon the ground that the firm was insolvent, and that it would be unjust to permit one person to acquire a lien upon the property to the prejudice of others equally deserving.” Schloss v. Schloss (Appellate Division, First Department), 43 N. Y. Supp. 788, in which ease the court said: “It appears by the reported cases that this is not the first time that such a ruse has been resorted to to hold creditors at arm’s length until it became convenient for debtors to pay; and we agree with what was said by the courts in those cases, that if it had appeared that the intention was not to wind up the affairs of the debtor with the greatest possible speed, but to continue the business for his benefit, there is no reason for forbidding a creditor to levy precisely as though no receiver had been appointed.” In 1913, in Abrahams v. Beneke, 140 N. Y. Supp. 753, the appellate division of the first department reiterated the rule laid down in the cases heretofore cited. The rule also has the approval of the circuit court of the United States for the southern district of New York. Paterson v. Paterson, 182 Fed. Rep. 953. In Myers v. Myers, 43 N. Y. Supp. 737, Mr. Justice Beekman said, at special term: “The point made that the action is under the control of the partners, who may at any time discontinue it, is sufficiently answered in Holmes v. McDowell, supra; and, at any rate, if there should be a reasonable apprehension that any such thing might be attempted, it could be guarded against, as was suggested in White v. Frankel, 33 N. Y. Supp. 1, by an application on the part of a creditor to be made a party to the action, which, doubtless, in such a case, the court would grant.” This was affirmed by the appellate division (44 N. Y. Supp. 513) with an opinion which did not criticise the language of Mr. Justice Beekman.

The rule in New York, as now formulated, secures an equitable distribution of the assets of an insolvent partnership, but prevents the partners invoking the aid of the court to protect the assets of a solvent partnership, or of an insolvent partnership for fraudulent purposes. It is significant that the result has been reached in New York through the decisions of appellate tribunals, inferior to the court of appeals, which had decided Holmes v. McDowell. It was recognized by the New York courts that at the time of the decision of that ease the court was feeling its way, and that the determination should be considered as binding authority only in cases in which the facts were similar to those there dealt Avith.

A consideration of the California eases referred to by the chancellor in Ross v. Titsworth will indicate, as pointed out by the supreme court of Oklahoma, 1903 (Foster v. Field, 74 Pac. Rep. 190), that the California court did not go to the length of holding that, after the appointment of a receiver of an insolvent co-partnership before decree of dissolution, while the proceedings are, however, being carried on in good faith, liens may be acquired by creditors. The court said: “And again it will be observed that in the California cases cited it seems to have been conceded that, if the partnership had been insolvent, then the rights of creditors, as of necessity, in equity, would attach.” It was also pointed out that the California cases were based largely on the statutes of that state. The California cases were considered in 1885 by the supreme court of Illinois, and distinguished upon grounds indicated by the Oklahoma court. Boss v. Tits-worth was considered, as was Elliott v. United States Insurance Co., 7 Gill. 307. It was pointed out that the Elliott Case went upon the ground that the orders made did not state the ulterior .intent of the court to make an equitable distribution of the fund.

Unless Ross v. Titsworth he considered as authority, I have yet to find a case holding squarely that, after an appointment of a temporary receiver of an insolvent partnership, before decree of dissolution, while the proceedings are being carried forward with due speed and in good faith, creditors may acquire liens. In England the rights of creditors are protected by what is known as a charging order. Kewney v. Attrill (1886), 34 L. Rep. Ch. Div. 345; Ridd v. Thorne (1902), 2 L. Bep. Ch. Div. 344. Mr. Justice Kay, in Kewney v. Attrill, said: “I give the applicants, the judgment creditors, a charge now on the moneys which are in the hands of or may be taken possession of by the receiver, and they must undertake to deal with the charge according to the order of the court.” He had said: “By the appointment of a receiver the court aims at equality amongst the creditors. If I give you leave it must be on your undertaking to hold the proceeds and deal with them in accordance with any order the court may make.” There had been a decree of dissolution. The purpose of the action of the court was that if, for any reason, the administration of the estate should be taken awajr from that court, such as by an act of bankruptcy, the creditors might have, in the bankruptcy proceedings, the same advantage as they would have if they had levied an execution. I find no English authority drawing a distinction between the rights of creditors as against property in the possession of a receiver appointed before dissolution and one appointed after. In Helmore v. Smith, 35 Ch. Div. 449, it was held in a case where the court of appeals had ordered the appointment of a temporary receiver pending appeal from an order of dissolution and appointing a receiver that a libel on the business conducted by the receiver and manager was a contempt of court and might be punished by committal indicating quite clearly that the receiver was something more than a mere agent of the parties.

The rights of diligent creditors may be protected by permitting them to levy but not to sell. The receiver may then be directed to sell free of the lien or charge of the levy, the lien, if any, to attach to the proceeds, the levy to give the creditor no prior right in case the assets are distributed as a result of the then pending proceeding, but in case the assets are turned back to the partners, either because of discontinuance of the suit, or for other reasons, the levy to be as effective as if a receiver had never been appointed. Whether the same result may be obtained by a charging order, as in the English practice, I do not determine. By this method an equitable distribution of the assets of the partnership taken initially for that purpose under the control of the court by the appointment of the temporary receiver will be achieved, and yet the partners will not be permitted to invoke the rule fraudulently to the disadvantage of creditors.

The result may be worked out upon the doctrine of relation. The supreme court of the United States held in Bailey v. Baker Ice Machine Co., 239 U. S. 268, that a trustee in bankruptcy takes the status of a creditor holding a lien by legal or equitable process as of the date of the filing of the petition in bankruptcy, although there is no express provision in the act to that effect. Judge Rellstab (In the Matter of the Capital City Cap Co. (United States District Court, District of New Jersey), 41 A. B. R. 604), said: “It is not the passing of the title to the bankrupt’s property, under section 70-A, but the passing of such property gremio legis for purposes of liquidation, which fixes the time when the trustee is regarded as having acquired the status of a lienholder under section 47.”

The right of the receiver appointed after dissolution to avoid liens, claimed to be acquired by judgment creditors by judicial process, upon the partnership property, may be held to relate back to the time that the court first took the property into its possession through the medium of a temporary receiver. If, for any reason, the property is not distributed in the cause, and the receiver is discharged, liens acquired may be permitted to become effective.

It is elementary that when property is taken over by a court for distribution amongst creditors, the maxim “equality is equity” is to be applied, if possible. It is so with respect to corporations. In Squire v. Princeton Lighting Co., 72 N. J. Eq. 883; 15 L. R. A. (N. S.) (1908) 657, th‘e court of errors and appeals, speaking through Mr. Justice Pitney, referring to Doane v. Millville Mutual Insurance Co., 43 N. J. Eq. 522, said: “With respect to Yiee-Chaneellor Bird’s decision upon the point now raised, it is sufficient to say that if the order that he had under consideration did amount to a taking possession of the assets of the company by the court, his declaration that there was no longer opportunity for anyone to obtain advantage by diligence is correct.” The court of errors and appeals held that the order to show cause containing the ad interim restraint, ordinarily granted in corporation cases, did not amount to a taking over of the property by the court, and that creditors might proceed to acquire liens, notwithstanding the order. It recognized, however, I think, that the court might take possession of the property, so that liens could not be acquired, otherwise than by the appointment of a receiver, and in order to comply with this decision in all cases hereafter in which I am called upon to advise orders and the facts warrant temporary restraint, but either do not warrant, or for some reason there is not desired, the appointment of a receiver, I shall incorporate in the order a provision that from the date of the service of the order the corporation, its agents and officers, shall hold its property as trustees under appointment of, and accountable to, the court, with leave to continue the business or such other powers or restrictions as may be appropriate.

Under the “Act concerning general assignments” (1 Comp. Stat. p. 114), after the making of a general assignment, liens cannot be acquired nor are judgments preferred in the distribution. In view of the fifteenth section of the act, page 119, Wimpfheimer v. Perrine, 67 N. J. Eq. 597, referred to by Vice-Chancellor Garrison in Brockhurst v. Cox, 71 N. J. Eq. 708, to the effect that a general assignee by voluntary assignment is not such a representative of creditors as to enable him to assert on their behalf the right of attacking the validity of an otherwise valid mortgage, no longer expresses tire law of this state. The law in this regard is settled in Watson v. Rowley (Vice-Chancellor Stevenson), 63 N. J. Eq. 195. In Haston v. Castner, 31 N. J. Eq. 697, the court of errors and appeals held that the statutory direction that the lands of a decedent shall be liable for the payment of his debts, created a lien in favor of creditors-at-large which gives them a right to impeach a conveyance made by the decedent in fraud of creditors. In Currie v. Knight, 34 N. J. Eq. 485, Vice-Chancellor VanEleet said that the provision of the statute that the assets of an insolvent estate shall be distributed ratably among the creditors of the decedent gives them a lien on such assets and entitles them to a standing to contest the validity of a chattel mortgage not filed according to the statute. It has been held that after a rule to limit creditors, but before adjudication of the insolvency of an estate, a judgment obtained against the representative will not be entitled to preference. Ryan v. Van Arx, 46 N. J. Law 531.

It seems to me that the right of creditors to an equitable distribution of the assets of an insolvent partnership arises, at least, upon the property being taken over by a temporary receiver with a view to ultimate distribution, and that after such a taking over, liens cannot be obtained through legal proceedings and that this is so notwithstanding the fact that the suit may be discontinued; that creditors, however, will be permitted to make levies, so that in case of discontinuance their legal rights will be protected, and that if it appears that the partnership is solvent, or that the proceedings are not being taken in good faith, the court may permit judgment creditors to proceed with their legal remedies. I think this view is supported by the great weight of authority. 30 Cyc. tit. “Partnership” §§ 2-8 (at pp. 730, 731); see also Lind. Part. (7th ed.) (at p. 585).

Ross v. Titsworth has not received the direct approval of the court of errors and appeals. It is mentioned in Brockhurst v. Cox, 71 N. J. Eq. 703; affirmed, 72 N. J. Eq. 950, on the opinion of this court, but the remarks made by Yice-Chancellor Garrison (at p. 709 of 71 N. J. Eq.) were not necessary to the determination of that case, and were more in the nature of a recital than anything else. My conclusion is, in view of the subsequent decisions and of the fact that a rule may be adopted which will secure equality amongst creditors and yet not result in the evil anticipated by the chancellor, that the determination in Ross v. Titsworth must be contraed to the facts in that case. It there appeared that the proceedings had been unduly delayed, no excuse was given for the delay, the result would have been the same had the present New York doctrine been considered as prevailing here. The chancellor said: “The bill prays no dissolution. It does not expressly allege insolvency, though it shows it.”

I do not think that the court should tolerate a scramble for priority after it has taken control of assets with a view to ultimate distribution, but before it can be said that the assets are irrevocably within its control, where the delay in getting such a determination is due to a necessary delay in the service of process and the bringing on of the case to trial. An argument which would so result may be made with almost equal force in the case of an insolvent corporation prior to adjudication; that that argument would not prevail in such a case, I think, is clearly indicated by Squire v. Princeton Lighting Co., 72 N. J. Eq. 883. If Mr. Justice Pitney had considered this the rule he would have undoubtedly plainly so stated; on the other hand, he intimates that if the order then under consideration, prior to adjudication, had amounted to a taking possession of the assets by the court, there would have been no longer opportunity for anyone to obtain advantage by diligence. After the award of an order to show cause and the appointment of a temporary equity receiver in a corporation case, before adjudication, there are many contingencies which may result in the turning back of the property to the corporation just as. in a partnership case, after the appointment of the receiver, but before decree of dissolution, there are many contingencies which may result in the turning back of the property to the partnership. In each case I think it must be considered that the rights of creditors at large attach from the time the court first put its hands upon the property, if, in fact, the property never leaves the possession of the court, except through a decree of distribution amongst creditors. See the remarks of Vice-Chancellor Learning in Trustees of Sea Isle Realty Co. v. First National Bank, 99 Atl. Rep. 929; 87 N. J. Eq. 84, in dealing with the situation of a dissolved corporation in the hands of trustees. He held that after dissolution no preferential liens could be acquired. It would seem that in these partnership cases a procedure should be adopted someudiat similar to the procedure in corporation cases. While it may be that constitutionally the right of a partner to a formal hearing at which he may be permitted to present proofs in open court cannot be taken away, yet it would seem that the order to show cause may require the respondent to answer to the merits wdthin a reasonable space of time sá that there may be a final hearing upon the return of the order to show cause. Whether this should be accomplished by statute or by a change in the rules may be a question. Eor an example of legislation which would accomplish the result, see Langstaff v. Hurd (Connecticut Court of Appeals), 34 Atl. Rep. 91. (Such procedure provided for by laws 1919.) The tendency to extend rather than limit the doctrine of relation. See note to Squire v. Princeton Lighting Co., 15 L. R. A. (N. S.) 657, and I am frank to say that I agree with the reasoning of Vice-Chancellor Bergen, now Mr. Justice Bergen, in the court of chancery in that case (64 Atl. Rep. 474), as did Mr. Justice Beed in the court of appeals. Mr. Justice Beed, after having served for a great many years on the supreme court bench, served for over a term in this court as vice-chancellor and then returned to the supreme court, and he was fully familiar from daily practice with the result of permitting creditors to acquire liens after the filing of the bill and the issuance of an order to show cause, but before the appointment of a receiver. The doctrine of relation was invented merely as a means' for the extension of equitable principles which it has come to be recognized should be applied in the administration of justices in cases of insolvent estates. The bankrupt laws require that all preferences acquired by legal process within four months of the filing of the petition are void. Equity abhors preferences as she does forfeitures. There is no equitable reason why creditors who happen to get a judgment and levy at a time when the corporation is insolvent but a short time prior to an adjudication should be preferred. The idea that a diligent creditor is entitled to profit by his diligence has, I think, been carried too far. I am not unmindful that equity favors diligence, but the diligence that equity favors is that which results in equity. The mere fact that one of a class of creditors secures a judgment gives him no special equity. Although in form a judgment, the debt is one of a class. My personal view is that our Corporation act should be amended to conform to the Bankrupt act with respect to preferences acquired by legal process. In case after case commenced in this court (I have two of them before me at the present time) T have seen creditors, who prefer the administration to remain here because of the more elastic procedure, forced, after the administration has been practically completed here, to take the matter to the federal courts in bankruptcy so that advantage may be taken of the provision voiding preferences acquired by' legal process. There is no reason why the act should not be amended. It must be conceded now that the federal courts have jurisdiction in bankruptcy, notwithstanding that the estate is in process of administration in this court, and nothing can prevent creditors from going to that court so that judgment creditors cannot complain. 'If at any time the federal act is amended or repealed our act can be changed accordingly. By so doing we get the benefit of the provisions of the Bankrupt act plus the benefit of the sixty-fourth section of our statute which, in some respects, is much broader than any provision of the Bankrupt act. (Corporation act amended laws 1919.)

Is the judgment creditor entitled to any priority by reason of his judgment, irrespective of his proceedings under it? If I am right in my answer to the first query, then the judgment creditor obtains no lien which can be enforced, if the assets are distributed to the creditors in this case, by the issuance of his execution and the levy thereunder. The District Court act, section 198, revision of 1898 (2 Comp. Stat. p. 2010), provides that a writ or execution shall bind the goods or property of the person against whom the writ is sued for from the time it is delivered to the constable, saving purchasers in good faith prior to the actual levy of the execution, but in this case the execution was delivered to the constable and the levy made after the receiver had actually taken possession. The priority of judgments in the distribution of assets is regulated by statute. The Corporation act provides, section 86 (2 Comp. Stat. p. 1652), that the creditors shall be paid proportionately, excepting mortgage and judgment creditors, when the judgment has not been by confession, &c. It is insisted that by 'virtue of section 1 of an act for winding up voluntary associations, and associations with partnership liabilities (3 Comp. Stat. p. 3924), the provisions of the Corporation act, so far as applicable upon winding up proceedings, apply. But the act referred to does not apply to ordinary partnerships. It applies only to associations where the partnership is so large and so secret as that actions at law cannot safely be brought against them, and when becoming insolvent the remedy at law is so uncertain and hazardous as to amount to a failure of justice for want of an adequate remedy. This clearly does not include the ordinary partnership with which I am now dealing. But if it did, it would not help the judgment creditor, for the court of errors and appeals has held in Doane v. Millville Mutual Insurance Co., 45 N. J. Eq. 274 (at p. 282), that judgment creditors are preferred only so far as they have acquired liens. The act concerning general assignments, revision of 1899 (1 Comp. Stat. p. 114), by its first section forbids the assignor making preferences, and by its tenth and twelfth sections wages and rent are made the only preferred debts. Prior to the act of 1899, assignors were permitted to prefer certain classes of creditors, including judgment creditors. Upon the distribution of insolvent estates of deceasel judgment creditors are, as a class, by statute, preferred. Koch. N. J. Prob. L. 528. Proceedings to dissolve insolvent partnerships and distribute assets have been likened to proceedings under general assignments. The rule in this court (rule 253) provides that the procedure should be as near as may be similar to procedure under the General Assignment act, unless the court by order otherwise direct. In practice, due to the cumbersome method provided by the Assignment act, the procedure generally adopted, by special order, is that provided for by the act concerning corporations. The tendency of legislation as indicated by the amendment of the Assignment act is towards equality amongst creditors. There being no statute upon which the judgment creditor can rest his claim of preference he has none. Haines v. Price, 120 N. J. Law 480 (at p. 483), cited in Second National Bank v. Blauvelt, 44 N. J. Eq. (at p. 177).

I will advise an order denying the petition of the judgment creditor, but charging upon the moneys in the hands of the receiver, the proceeds of the sale of the property upon which the judgment creditor made his levy, a charge to the amount of the judgment creditor’s debt, such charge to continue until the further order of the court; upon the appointment of a receiver in dissolution and the administration of the estate by this court, the charge will be discharged. I draw counsel’s attention to the fact that it may be that the order directing creditors to come in and the order barring creditors are of no effect because made prior to the decree of dissolution and that the procedure may have to be gone through-again after decr.ee of dissolution.

No costs to either party.

Settle order on two days’ notice.


source: Caselaw Access Project

author: Lewis, Vice-Ordinary.

license: Public Domain

text:
    In the matter of the appeal of the United States Fidelity and Guaranty Company, from an order of the orphans court of the county of Essex, opening a decree of said court made on October 22d, 1915, in the matter of the estate of Mabel Vanderbilt, a minor.
    [Decided August 21st, 1918.]
    AVhere the orphans court, settling a guardian’s account, granted the substituted guardian and ward leave to Jake proceedings against the original guardian’s estate, or his surety, the court, after the time for appeal had passed, was authorized, on petition of the ward, to open the decree for exceptions, the account being merely an intermediate account.

      On petition of appeal. Heard on a transcript of the pleadings and proofs in the court below.

      Messrs. McDermott & Enright, for the appellant.

      Messrs. Collins & Corbin, for the respondent Mabel Vanderbilt.

      Mr. Daniel L. Campbell, for the respondent Fidelity Trust Company.

      Mr. Edward A. Markley, for the respondent William S. Woodhull.
   Lewis, Vice-Ordinary.

Nellie Black Vanderbilt, the mother of the respondent Mabel Vanderbilt, died February 11th, 1901, leaving a will by which, after making certain specific gifts, she gave to her daughter Mabel one-half of the balance of money, bonds and investments of which she might die seized, and appointed as executors of her will her husband, Dewitt Clinton Vanderbilt, and Emma Littell Black. Mabel Vanderbilt was born August 29th, 1894, and, consequently, was a minor at the time of the death of her mother. Her father, DeWitt Clinton Vanderbilt, was, accordingly, appointed by the surrogate of Essex county, July 14th, 1908, guardian of her estate, and the United States Fidelity and Guaranty Company became surety upon his bond as such guardian. On August 13th, 1908, DeWitt Clinton Vanderbilt, as guardian, received from himself as executor under the will of Nellie Black Vanderbilt certain money and securities representing the one-half share bequeathed to Mabel Vanderbilt by her mother. Included in these securities were thirty-two shares of the capital stock of the Pennsylvania railroad and thirty shares of the capital stock of the American Express Company.

DeWitt Clinton Vanderbilt died on the 31st of December, 1914, nearly a year before his daughter and ward, Mabel Vanderbilt, became of age, and thereafter one William S. Woodhull was appointed administrator of his estate and filed in the Essex county orphans court what purported to be the final account of DeWitt Clinton Yanderbilt as guardian of the estate of Mabel Yanderbilt. This account was noticed for settlement August 25th, 1915, the notice being dated July 14th, 1915. fin the meantime, on January 26th, 1915, the Fidelity Trust .Company had been appointed by the surrogate of Essex county substituted guardian of the estate of Mabel Yanderbilt. It will be noted that Mabel Yanderbilt did not become of age until August 29th, 1915, so that she was a minor when the notice of settlement was first given, and continued to be a minor on August 25th, 1915, the date for which the settlement was noticed. The settlement of the account was adjourned by the orphans court until October 22d, 1915, and upon that date the account was settled and a decree made charging the estate of DeWitt Clinton Yanderbilt with the sum of $632.84 as the portion of the estate of Mabel Yanderbilt, for which the accountant was rinable to account, as shown by the account itself. The parties represented by appearances upon the making of this decree were the accountant, the Fidelity Trust Company, substituted guardian of Mabel Yanderbilt, and the United States Fidelity and Guaranty Company, bondsman of DeWitt Clinton Yanderbilt, as guardian. Mabel Yanderbilt herself had no notice of the proceedings for settlement. The balance of $632.84, with which the estate of DeWitt Clinton Yanderbilt was charged by this decree of settlement, was obtained by including amongst the items for which the accountant prayed allowance the thirty-two shares of the capital stock of the Pennsylvania Eailroad Company at the sum of $2,-104, and the thirty shares of the American Express Company at the sum of $7,050, these stocks being in the hands of the accountant. The sums thus allowed on account of these stocks were greatly in excess of their actual market value at the time of the death of DeWitt Clinton Yanderbilt and at the time of the settlement of the account. The decree of settlement, after directing that these shares, together with the other securities and moneys of the estate, be turned over to the Fidelity Trust Company, as substituted guardian for Mabel Yanderbilt, further ordered “that the Fidelity Trust Company, substituted guardian of said Mabel Yanderbilt, and’the said Mabel Yanderbilt have leave to take such proceedings against the estate of DeWitt C. Vanderbilt or against the United States Fidelity and Guaranty Company, bondsman of the said DeWitt C. Vanderbilt as aforesaid, as it or she may be advised.”

In May, 1916, Mabel' Vanderbilt, who had then attained her majority, filed a duly-verified petition in the Essex county orphans court, setting forth the foregoing facts and charging that DeWitt Clinton Vanderbilt, as guardian of her estate, failed in his duty and committed a breach of his trust in failing to dispose of the Pennsylvania railroad stock and the American Express Company stock at a time when he might have obtained a favorable price for the same, and that as a result of such neglect of duty and breach of trust, the petitioner’s estate had suffered a depreciation of about $4,000, for which William S. Woodhull, as administrator of the estate of DeWitt Clinton Vanderbilt, should have been charged upon the settling of his account. The petition then prayed that the decree of the orphans court made October 22d,- 1915, settling the account in question, might be opened, vacated and set aside, and that the petitioner might have leave to file exceptions to the account in the particulars named. To this petition the United States Fidelity and Guaranty Company, surety on the guardianship bond of DeWitt Clinton Vanderbilt, filed an answer admitting the facts set forth in the petition, but denying the charge thereof. After hearing and argument, the Essex county orphans court ordered that the decree of October 22d be opened for the purpose of permitting Mabel Vanderbilt to file exceptions to the account of DeWitt Clinton Vanderbilt, guardian, as filed by William S. Woodhull, administrator of the estate of DeWitt Clinton Vanderbilt, deceased, in a form annexed to and made pari of the order. The exceptions thus permitted to be filed attacked the account, first, because the accountant asked allowance for the thirty-two shares of Pennsylvania Railroad Company stock at $2,104, whereas the same were worth, at the time of the death of accountant’s intestate, only $1,776, and secondly, because the accountant asked allowance for thirty shares of th'e stock of the American Express Company at the sum of $7,050, whereas the same were worth, at the time of the death of accountant’s intestate, only $3,720 (at p. 23). The depreciation thus claimed by the exceptions amounted to $3,658, in an estate of approximately $15,-000 — in other words, about a quarter of the value of the entire estate. From the order of the Essex county orphans court, opening its own decree and permitting these exceptions to be filed, the United States Fidelity and Guaranty Company has appealed to the prerogative court.

The only question presented by this appeal concerns the power of the orphans court to open its own decree settling the account of the guardian, the time for an appeal from the decree in question having passed.

At the time the account was noticed for settlement, and on the day for which the settlement was appointed, Mabel Vanderbilt was still a minor and had no notice of the proceedings, nor did she appear to the same subsequently on the day when the decree was actually made, October 22d, 1915, by which time she had attained her majority. In the very nature of the case, therefore, the account and the decree thereon could have been only intermediate in character, although the accountant referred to and entitled his account “final.” But the orphans court, so far from regarding the account or decree as final, incorporated in the decree an express reservation granting to the Fidelity Trust Company, substituted guardian of Mabel Vanderbilt, and to Mabel Vanderbilt herself, leave to take such proceedings against the estate of DeWitt Clinton Vanderbilt, or against the United States Fidelity and Guaranty Company as they might be advised. In opening the decree, the orphans court was careful to recite, as a ground for so doing, the express reservation referred to and also the fact that the account in question was in reality an intermediate account. The nature of the decree and its express reservations are, therefore, such as amply to justify the orphans court in permitting a further inquiry into the items of the account. Indeed, the orphans court in making the reservation in the decree must have contemplated such further inquiry, and left it open to the respondent to take such action for the instituting of such an inquiry as she might be advised. It now clearly appears that the- proper practice in such a case is that adopted by the respondent. The propriety and correctness of- the order complained of may, therefore, rest upon the language of the original decree itself, reserving to the respondent the very tight that the appellant now seeks to deny. In opening its own decree to permit exceptions to be filed, the orphans court was, in reality, but taking steps for disposing of a matter which, on the very face of the original decree, was left unsettled.

The order of the orphans court opening the decree of October 22-d, 1915, and permitting the respondent Mabel Vanderbilt to file certain specific exceptions, should be affirmed, with costs to the respondent.


author: Backes, Vice-Ordinary.

text:
    Clarence C. Smith, administrator-appellant, v. J. Corbett Jones et al., exceptants-respondents.
    [Submitted June 19th, 1918.
    Decided July 18th, 1918.]
    1. The law exacts of an administrator only the utmost good faith, ordinary care and prudence and reasonable diligence; he is not liable for mere error of judgment.
    2. An administrator is not bound to enforce a doubtful or controverted claim merely because the heirs think it is well founded, unless the heirs are willing to give indemnity for costs.
    3. An administrator is not chargeable with assets of the estate which he failed to collect because of an honest error of judgment; the practice is to stay the accounting, as to the item, to enable him to recover, or to permit those interested to sue in his stead.
    4. On exception to the account of an administrator to hold him liable for amounts disposed of by the intestate, persons to whom money was given should have been allowed to testify that the money was a gift, under 2 Comp. Stat. 1910 p. 2218, as only parties to the action are disqualified by the statute.
    On appeal from the Warren county orphans court.

      Mr. George M. Shipman and Mr. Nicholas Harris, for the appellant.

      Mr. William. H. Morrow, for the respondents.
   Backes, Vice-Ordinary.

This appeal is from an order of the orphans court surcharging the final account of the administrator with $3,000. Mary P. Jones died in July, 1916, intestate, leaving a son, daughter and two grandsons, children of a deceased son. After a contest between them for administration, the court appointed a stranger, Clarence C. Smith, who administered, and submitted his account for confirmation. The two grandsons filed an exception, setting-up that the administrator, had failed to charge himself with $3,000, money of the defendant, alleged to have been unlawfully obtained from her by her two surviving children shortly before her death. The exception was sustained and this appeal was taken. The proofs show that in December, 1915, the deceased received from the executor of her brother’s estate, in part payment of her distributive share, a check, payable to her order, for $3,000, for which she executed a release. Her son, James P. Jones, carried the check to her and returned the release. On January 18th ho presented the check, bearing the endorsement of his mother, to the cashier of the Belvidere National Bank and directed him to credit one-half of the amount to his account and the other to that of his sister, Margaret Warne, which was done. The deceased left a note, in her handwriting, found in the box containing her securities, stating that she had given the $3,000 to her son and daughter. The administrator was the executor who drew the check, and he was also cashier of the bank. The deceased was eighty-six years of age, and although physically impaired was, to use the language of one of her grandsons, “an exceptionally bright woman, of a splendid disposition and of fine intelligence.” She lived alone with a maid and conducted her household affairs well, and her financial transactions wisely, to the day of her death. The day before her death she went automobile riding with one of her grandsons, and was in good spirits. She had a “bad spell” in December, and her daughter, Mrs. Warne, came on from the west to attend her. In May following she had another. The illness affected her mind and memory for the time being, but when the spells had passed she became normal. The two grandsons evidently had some intimation of the payment of the $3,000, shortly after it was made, and they wrote to the executor, who confirmed their suspicion. They communicated with their Uncle James, asking what had become of the money, and his reply being unsatisfactory, one of them asked his grandmother point-blank whether she had given any of it to his uncle and aunt, to which she answered evasively that she thought she had given them some money, but she was not quite sure, and added, “I want you boys to have your share of that, too.” In this conversation she called his attention to the fact that she held a note or two of his father amounting to about $1,000, and suggested that “Maybe it would be just as well to let it apply upon that,” and that she would straighten it out the next time he came up. After the funeral the grandsons persisted in their efforts to discover the $3,000, but without success, their uncle and aunt refusing to inform them, stating that they had made a solemn promise not to tell. After the litigation over the right to administer, the administrator tried to restore peace and avert further litigation, and at the instance of Mr. Jones and Mrs. Warne, offered to pay the grandsons $1,000 in the closing of the estate, as their share of the $3,000, but they refused to be reconciled. They requested the administrator to commence suit, which he failed to do, and, upon his failure to charge himself with the amount, they took exception. There is no ulterior significance attached to the circumstances that the administrator drew the cheek as executor of another estate, and as cashier of the bank divided the proceeds. They were mere coincidents. Hor does it appear other than that, throughout the affairs, the administrator acted impartially and in good faith. He was selecte'd by the court as administrator for his known probity. The orphans court tried the exception upon the theory that the sole issue was whether there was a gift to the son and daughter, and that they were the real parties to the action. It rejected their testimony of the transaction with their mother, tending to show a gift, as incompetent under the statute, and ruled that by reason of the enfeebled condition of the deceased, and the confidential relation existing between her and her children, a presumption against the validity of the gift arose, which had not been overcome by proof that the gift was knowingly made and without undue influence on the part of the donees, following Haydock v. Haydock, 34 N. J. Eq. 570.

The court erred in adjudging the administrator liable, based upon its finding that there had been no gift, and also in excluding the testimony offered to show that a valid gift had been made. "Whether the $3,000 were assets of the estate, undisposed of, was a proper matter for investigation, but the conclusion reached by the court, upon the evidence before it, that the gift was invalid, and that the amount was collectible by the administrator, establishes but one factor toward his accountability. Before he could be condemned in damages, it was necessary to further find upon the proofs that it had been lost to the estate through his neglect. The law exacts of an administrator or trustee in the performance of his duty only the utmost good faith, ordinary care and prudence and reasonable diligence. When these are fairly exercised, he is not responsible, even though loss ensues. The good faith of the administrator was not challenged, and lack of care and diligence formed no part of the considerations in the court below; and if the court had considered this phase of the case, it seems to me, it would not have been warranted in finding the administrator derelict in the discharge of his duty. The judgment of the court that the gift was invalid, and that the amount was an asset of the estate, to which the administrator was entitled, does not predicate lack of care or prudence in the administrator. His failure to determine the rights of the parties with legal nicety was not carelessness. He judged the matter as the average man would. Actual imposition or fraud upon the mother by son and daughter was not charged. Their character and standing forbid even an insinuation of this. It is to be assumed that in passing judgment the administrator had before him the .circumstances that have been heretofore related, and also the additional facts testified to by the donees, which the court below excluded, but which I admitted over objection. By their testimony it appears that when the son, James, gave his mother the check, in December, she put it in her purse, and that when he called to pay her a visit on the 17th or 18th. of January, she gave it to him, stating that she desired it to be divided between himself and his sister. Both affirm, and, believabty, that the gift was voluntary and without the slightest suggestion on their part. With this explanation, supported by the note the old lady left, and her statement to her grandson indicating that the gift to her two surviving children was to equalize the advancement to, or debt of, her deceased son, and the fact that the gift in itself was a perfectly natural one, was it unreasonable for the administrator to conclude that the gift was perfect and the amount not recoverable by suit? I confess that I have grave doubt as to a successful prosecution for its recovery. The question is not, "Did he err,” but, “Did the estate suffer harm through his unmindfulness of duty?” “So long as an executor acts in good faith and with ordinary discretion, and within the scope of his powers, his acts cannot be successfully assailed. Ho man is infallible; the wisest make mistakes; but the law holds no man responsible for the consequences of his mistakes which are the result of the imperfection of human judgment, and do not proceed from fraud, gross carelessness or indifference to duty. * * Indeed, he may do anything within the scope of hi? powers, without the least risk of personal liability for the consequences of his acts, provided he exercises the care and judgment of a man of ordinary prudence and sagacity. That is the test which the courts are required to apply in all cases.” Heisler v. Sharp, 44 N. J. Eq. 167.

The hardship of the judgment below is emphasized by the precariousness of the claim. If a court of competent jurisdiction should declare the gift valid, a most embarrassing situation would be presented. The estate has not as yet. suffered loss. The right of action is not barred, and the donees are financially responsible; in fact, sufficient remains in the hands of the administrator to insure payment in the event of a recovery. The decree below, in respect of the exception, will be reversed, with directions that the grandsons be permitted to sue in the name of the administrator to recover the amount of the gift, upon filing a stipulation, pledging their distributive portion of the estate to indemnify the administrator against costs. An administrator is not bound to enforce a doubtful or controverted claim merely because the heirs think it is well founded, unless they are willing to give indemnity for costs. Sandborn v. Goodhue, 28 N. H. 48; Harris v. Orr, 46 W. Va. 261. The grandsons should conduct the suit so as to remove further criticism of the administrator. In the case of Thomas Lommason's Will, Chief-Justice Beasley, sitting in the Warren orphans court, directed the exceptants to prosecute a claim held by the estate, upon giving indemnity, because the executor might be embarrassed in bringing the suit. The opinion has been lost, but the reason is recited in the order made January 16th, 1865.

A cross-appeal was taken (rule 62) from so much of the decree overruling an exception to a credit of $57 paid to Mary Jones for services. The proofs sustain the claim and the decree in this respect is affirmed. The appellant is entitled to costs.

A few words as to the evidence of the donees, of conversations with their mother, concerning the -gift, which was rejected as incompetent. It should have been received. The fourth section of the Evidence act (2 Comp. Stat. p. 2218) provides—

“In all civil actions any party thereto may be sworn and examined as a witness, notwithstanding any party thereto may sue or be sued in a representative capacity; provided, this section shall not extend to permit testimony to be given by any party to the action as to any transaction with or statement by any testator or intestate represented in said action, unless the representative offers himself as a witness on his own behalf, and testifies to any transaction with or statement by his testator or intestate, in which event the other party may be a witness on his own behalf as to all transactions with or statements by such testator or intestate, which are pertinent to the issue.”

It disqualifies only the parties to the action from giving testimony of conversations with the deceased, and does not extend to those who .may be ultimately benefited by the result of the suit. The donees were not parties to the litigation, nor were they interested one way or the other in the outcome. The matter to be determined was whether the administrator should be charged with the amount of the check because of his failure of duty. To this, the question' of gift or no gift, as between the estate and the donees, was merely incidental, and the right of the estate to recovery against them remained untouched and unforeelosed by the judgment. The situation is not like that in Smith v. Burnet, 34 N. J. Eq. 219; affirmed, 35 N. J. Eq. 314, the doctrine of which the orphans court applied. In that case the executor failed to charge himself with certain insurance comjjany stock and the dividends thereon, standing in the name of the deceased, which he claimed had been given to him by the testator. At the trial of the exceptions, the executor offered himself as a witness to establish the gift, and his testimony as to conversations with the testator in. respect of it, was excluded as incompetent, within the prohibition of the statute. VanWagenen v. Bonnot, 74 N. J. Eq. 847, was an interpleader suit filed, by the stakeholder against the administrator of the donor and the donee to determine the ownership of certain bank accounts. The testimony of the donee, concerning transactions with the deceased relating to the gift, was held to be incompetent. In both these cases the testimony rejected was that of the parties to the proceedings who claimed the gift. In the case in hand, the thing in action was not the gift, but the damage arising from the loss of it. The parties to the action were the administrator, on the one hand, and exceptants representing the estate, on the other, and if the administrator had offered to testify of conversations with his intestate, for the purpose of exonerating himself, he would have been barred upon the authority of the cases cited. The case of Rairdon v. Sampson, 67 N. J. Law 346, is more nearly in point. There, the administrator of Rairdon sued to recover wages of his intestate, and called the widow as a witness, who testified to conversations and transactions between the intestate and the defendant. She was vitally interested in the outcome of the suit, as sole distributee of her husband’s estate, but tire court declared that her testimony did not open the door to the defendant to give counter-testimony of conversations and transactions with the deceased, because she was not a party to the action.


author: Lane, Vice-Ordinary.

text:
    In the matter of the appeal from the decree of the orphans court for Essex county admitting to probate a certain paper-writing as the last will and testament of William Book, deceased.
    [Decided October 25th, 1918.]
    An adopted child is not issue within the purview of section 29 of an act concerning wills (4 Comp. Stat. p. 5865), and the will of a testator who, at the time of making, had no issue, although he had an adopted child and who subsequently died with his wife enceinte of a child, which was thereafter born, is void.
    On appeal from the Essex orphans court.

      Mr. Thomas S. Henry and Mr. Francis Child, for the appellant.

      Mr. John F. Helm and Mr. Harry Campton, for the respondent.
   Lane, Vice-Ordinary.

The-testator adopted a child in accordance with the provisions of an act concerning minors, their adoption, custody and maintenance. Rev. of 1902, 2 Comp. Stat. p. 2807, amended P. L. 1012 p. 53. His wife at the time of the adoption died. By her he had no children. He remarried. He then made his will. He died, and after his death a posthumous child of the second marriage was born. The will was admitted to probate by the orphans court. It provides substantially that two-thirds of his estate should go to his wife and that one-third should be held in trust for the benefit of (and ultimately to go to) the adopted child under certain conditions.

A caveat was filed against probate by William Eeindt, the 'natural father of the adopted child. Although not so stated in terms it is apparent that the caveat ivas filed on behalf of the adopted child. Subsequently, an order was made appointing the natural father next friend of the adopted child.

The contention of the respondent that the appellant had no standing in the court below is untenable, I think, for the reasons stated below.

The insistence of the appellant is that under section 20 of an act concerning wills (4 Comp. Stat. p. 5865) the will is void, having been made at a time when the testator had no issue living, the testator djdng with his wife enceinte of a child, which was thereafter born.

The single question presented for determination is whether the testator having an adopted child at the time of the making of the will had issue within the purview of section 20. Sections 20 and 21 of the Wills act read as follows (page 5865). Section 20:

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

Section 21:

“That if a testator having a child or children born at the time of making- and publishing his last will and testament, shall at his death leave a child or children born after the making and publishing of Ms said last will and testament, or any descendant or descendants of such after-born child or children, the child or children so after-born, or their descendant or descendants, respectively, if neither provided for by settlement nor disinherited by the said testator, shall succeed to the same portion of the father’s estate, as such child or children or descendants as aforesaid would have been entitled to, if the father had died intestate; towards raising such portion or portions, the devisees and legatees, or their representatives, shall contribute proportionately out of the part devised and bequeathed to them by the same will and testament.”

At the time these sections were originally enacted there was no statute of this state providing for adoption. The legislature, therefore, could not have had adopted children in contemplation. It is clear that the words “issue,” “child” or “children,” in sections 20 and 21, are used in their strict and natural sense, and that the words “child” or “children” refer to a child or children born to the testator. The word “issue” may include descendants of every degree. In Wright v. Gaskill, 74 N. J. Eq. 742. the present chancellor, then vice-chancellor, held that the word “issue” in a devise is equivalent to heirs of the body. The court of errors and appeals, in Weehawken Ferry Co. v. Sisson, 17 N. J. Eq. 475 (at p. 486), said that the word “issue,” when not restrained by the context, is coextensive and synonymous with descendants, comprehending objects of every degree. Considering the context, it is clear, I think, that the legislative intent was that a will should be considered void if it appear that it was made at a time when the testator had no descendants (by blood) living and that after the making thereof there had been a child or children born to the testator and that at the time of death or at the conclusion of the period of gestation such child or children or his or their descendants are living.

The respondent insists that the effect of the Adoption act is to make an adopted child issue for all purposes not expressly excepted by the terms of the act. The conclusion that .1 have reached renders it unnecessary for me to pass upon the question raised by the appellant as to whether, if the Adoption act can be so construed, it is to such extent unconstitutional upon the ground that its purpose is not expressed in its title upon the reasoning of the case in which the act abolishing dower and curtesy has been held unconstitutional. The respondent would have the statute (sections 20 and 21 of the Wills act) read as follows. Section 20:

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

Section 21:

“That if a testator having a child or children born (or adopted) at the time of making and publishing his last will and testament, shall at his death leave a child or children (or adopted) after the making and publishing of his said last will and testament, or any descendant or descendants of such aftei^born (or adopted) child or children, the child or children so after-born (or adopted),” &c.

Turning to the Adoption act we find that the effect of adoption is as follows (P. L. 1912 p. 53):

“And the adopting parent or parents of the child shall be invested with every legal right in respect to obedience and maintenance on the part of the child as if said child had been born to them in lawful wedlock; and the child shall be invested with every legal right, privilege, obligation and relation in respect to education, maintenance and the rights of inheritance to real estate, or to the distribution of personal estate on the death of such adopting parent or parents as if born to them in lawful wedlock; provided, said child shall not be capable of taking property expressly limited to the heirs of the body of the adopting parent or parents, nor property coming from the collateral kindred of such adopting parent or parents by right of representation; and provided also, on the death of the adopting parent or parents and the subsequent deatn of the child so adopted, without issue, the property of such deceased parent or parents shall-descend to and be distributed among the next of kin of said parent or parents and not to the next of kin of the adopted child; and provided also, if such adopting parent or parents shall have other child or children, then and in that case the children by birth and by adoption shall, respectively, inherit from and through each other as if all had been children of the same parents born in lawful wedlock.”

.adoption was unknown at the common law, and it has been universally held, in common law states, that the provisions of statutes providing for it, being in derogation of the common law, must be strictly construed.

The legislature intended to permit the creation of an artificial status which would have so many of the incidents of the natural status of parent and child as indicated by the act, but it does not follow from this that it was the legislative intent, because it attached to the artificial status most of the attributes which attach to the natural status, to create a status which, aside from the exceptions specifically provided for by the act, should be in all respects equal to the natural status. In other words, it does not follow that the legislature intended that in all eases, except those expressly excepted by the act, the adopted child should be considered as issue, or as a child, where the term “child” is used as synonymous with a child born of the parent.

The case is novel in this state, and when resort is had to other jurisdictions, it is found that the cases are in conflict, especially if head-notes alone are considered. A critical examination of the opinions will disclose that they are not in such hopeless eonflict as otherwise would seem. 1 Rul. Cas. L. tit. “Adoption” §§ 30, 33; 46 L. R. A. 171; 17 L. R. A. 435; 7 L. R. A. 485; 30 L. R. A. (N. S.) 914; 44 L. R. A. (N. S.) 296; 8 L. R. A. (N. S.) 117.

But slight assistance, however, can be obtained from an extended consideration of these cases. Many of them have been determined upon statutes differing in some rgspects from those here in force. Others rest upon local law not applicable in this state, and in others it will be found that the statutes under consideration were adopted contemporaneously, whereas in this state they were not. Before the court can find that an adopted child is within the purview of section 20 of the Wills act, I think it must be made clear to appear that there can be no logical argument that there should be a distinction, as to the revocation of a will, between those cases in which the testator may have issue of his body at the time he makes the will and those cases in which he may have an adopted child, and also between those cases in Avhich he may have issue born of the body after he has made his Avill, and those cases in which he may have adopted a child. I am of the opinion that this does not clearly appear. The reason that the legislature has provided that a will should be revoked if made when there is no issue living and afterwards there be issue born, &c., is that it was contemplated that the testator, if he had realized the situation would, in all probability, have made other disposition of his entire estate and the reason Avhy, in case the will be made when there is issue living and thereafter children be born, that the after-born children or their descendants are let in to share in the estate .as if the testator had died intestate and the legacies, &c., abate sufficiently to make up the shares, must be that the testator having issue living at the time he made his Avill, in making it. and providing for others, must be assumed to have considered the claim and demand of the issue. I do not think it necessarily follows that the effect of adopting a child is the same upon the mind as having issue born.

In Davis v. Fogle (Supreme Court of Indiana, 1890), 124 Ind. 41; 23 N. E. Rep. 861; 7 L. R. A. 485, the court held, under a statute which provided that a will should be deemed revoked if the testator should have bom to him legitimate issue who should survive him, or should have posthumous, issue, that the will was not revoked by the adoption of a child, though by the adoption statute the child was entitled to receive all the rights and interests in the estate of the adopting parent by descent or otherwise that such child would if the natural heir of such parent. Thg court, said: “To hold that the adoption of a child revokes the will, it is necessary to interpolate into section 2560, after the words ‘legitimate issue/ the words ‘or shall adopt a child/or words'to the same effect. '* * * It would be legislation and enacting a statute to so construe it, and would be putting an unwarranted construction upon the statute to hold that the words ‘the testator shall have born to him legitimate issue mean the same as or include an adopted child, or that by the adoption of -a child a parent has born to him or has legitimate issue. The one is made a legal heir by legal proceedings under the statute, and the other is an heir by reason of being born in lawful wedlock; for one the parent has natural love and affection; for the other the parent may or may not have. The one the parent is bound to by nature and under moral obligation to support, maintain, educate and provide for, and to the other the parent is under such obligations as the statute imposes, and none other. The statute gives to the one certain rights and imposes certain obligations on the adopting parents, but it does not make it the legitimate child and issue of the adopting parents or a child born to them."

Although there is no case in this state in which the precise question now before the court has been determined, there are two cases from our court of last resort that seem to me, particularly when considered in conjunction with the cases from foreign jurisdictions, to point irresistibly to the manner in which it must be decided.

In Heidecamp v. Jersey City, &c., Ry. Co., 69 N. J. Law 284 the court of errors and appeals held that under the Death act the next of kin of a deceased was the next of kin by blood and not by the adopting parents. The court, considering the effect of the Adoption act upon the Death act, said: “The statute expressly invests the adopting parent with every legal right in respect to obedience and mámtenance on the part of the child as if the child had been born to them in lawful wedlock, but it wholly fails to bestow upon the adopting parent any right to inherit the estate of the adopted child.”

In Stout v. Cook, 77 N. J. Eq. 153, Vice-Chancellor Howell held that an adopted child was not within the term “child or children,” as used in a will made by the father of the adoptive parent prior to the enactment of the Adoption act. The vice-chancellor said: “The will speaks only of ‘child or children/ which could mean to the mind of the testator only blood relations and not relations by adoption. To hold in her favor would be to hold that she is within the terms of the will a child, and that, in the face of the fact that Thomas Stout never had any children, and in the face of the other fact, which must be conceded by the allegation of adoption, that she was somebody else’s child, and therefore not the child of Jacob Stout. Neither is she Jacob Stout’s child by implication of the statute. Section 4 of the act of 1877 provides that a child or children (so adopted) shall be invested with every legal right, privilege, obligation and relation in respect to education, maintenance and the right of inheritance to real estate or to the distribution of personal estate on the death of such adopting parent or parents as if born to them in lawful wedlock. In other words, such adopted child may inherit from the foster parent, but the adoption shall not operate to create a capacity to take as a child under the will of some other person.” Upon this branch of the case this court was affirmed in the court of errors and appeals (79 N. J. Eq. 640), for the reasons stated by Vice-Chancellor Howell.

The effect of Heidecamp v. Jersey City, &c, Ry. Co., suprais to render the case of Humphries v. Davis (1884), 100 Ind. 274, and the cases resting upon its reasoning, relied on by the respondent and by the court below, of little authority in this state. In that case the Indiana court, in a particularly hard situation, held that the adoptive parents inherited the property of the adopted child to the exclusion of the natural parents. Even in Indiana, when the question arose as to whether a will was revoked, under a statute similar to that in effect here, by the adoption of a child subsequent to the making of the will, the court, after considering the case of Humphries v. Davis, held that the will was not revoked. Davis v. Fogle, 124 Ind. 41; 23 N. E. Rep. 860 (1890); 7 L. R. A. 485.

It is true that the Indiana court, in Markover v. Krauss, 132 Ind. 294; 31 N. E. Rep. 1047 (1892), held, two judges dissenting, under a statute providing that if a man marry, a second wife and has by her no children, but had children living by a former wife, the fee in his lands should, on his death, vest in such children, subject to a life estate of the widow, that a person adopted by decedent under the provisions of an adopting statute, under which it was jn’ovided that the adopted child should receive all the rights and interests in the estate of the adopting father and mother as if he were their natural heir, was in the position of a natural heir and inherited the adopting father’s land, subject to the life estate of the.second wife. But the majority of the court in its opinion reaffirmed the case of Davis v. Fogle, holding that the question then before the court was not involved in that decision. The court stated: “The court correctly decided that the adoption of a child was not having a child Torn to’ the maker of the will. Only the birth of a child can have the effect of revoking a will.”

The force of Sewall v. Roberts, 115 Mass. 262, also relied upon by the respondent and the court below, is weakened by our determination in Stout v. Cook, supra. The Massachusetts court held that an adopted child was within the term “child or children,” as used in a voluntary settlement made by a testator long prior to the adoption in which he made provision for the special use and benefit of any of his children. The trust was created in 1825. In 1865 he adopted a- child. In 1872 he died, leaving no other child. The settlement was irrevocable. The first legislation in Massachusetts with respect to adoption was in 1851. The trust instrument also provided that if the settler should die without leaving any issue, then the principal should go-to his mother; that in case he should die without'leaving “any lawful issue,” and his mother should die before him, then to his heirs-at-law and the heirs-at-law of his mother. The Massachusetts statute provided that an adopted child should be deemed for the purposes of inheritance by such child and all other legal consequences and incidents of the natural relation of parents and children, the child of the parents by adoption, the same as if born to them in lawful wedlock, except that he should not be-capable of taking properly expressly limited to the heirs of the body or bodies of the parents by adoption, nor property from the lineal or collateral kindred of such parents by right of representation. The court, construing the terms of settlement, held that the term “child or children,”' “issue and lawful issue” and “heirs,” were not confined to heirs of the body, and that the adopted child took under the terms of the settlement as a legal consequence and incident of the natural relation of parent and child. In view of our determination in Stout v. Cook, it is at least doubtful whether our court would have decided as the Massachusetts court did. Stout v. Cook may, I suppose, be distinguished upon the ground that although the settler in the Massachusetts case in 1825 could noi have had in contemplation an adopted child when he used the terms “child or children,” “issue” and “lawful-issue,” and although the settlement ivas irrevocable, yet when he adopted a child in 1865 he perfomed a voluntary act which brought the child of a stranger within the term “child or children” or “issue” used in the settlement. The case of Sewall v. Roberts is distinguished m the last paragraph of the opinion of the court in Davis v. Fogle.

In the court below the statute in Massachusetts under consideration in Sewall v. Roberts was considered similar in import to the statute in effect in this state. An examination of the Massachusetts statute will disclose that it provides that the adopted child should be deemed for the purposes of inheritance * * * and all other legal consequences and incidents of the natural relation of parent and child, the child of the parents by adoption the same as if he had been born to them in lawful wedlock, whereas our statute provides that the child should be invested with every legal right, privilege, obligation and relation in respect to education, maintenance and the rights of inheritance to real estate, or to the distribution of personal estate * * * as if born to them in lawful wedlock. The Massachusetts court rested its determination upon the use in the Massachusetts statute of the term “all other legal consequences and incidents,” absent in our statute.

Those cases holding that an adopted child is within the terms “child,” “children,” “issue” or “lawful issue,” as used in statutes of descent and distribution, are not at all applicable. It must be conceded that the legislature, having vested an adopted child with the right of inheritance and of sharing in the distribution of personal property as a natural child, the words “child,” “children” or “issue,” used in statutes of descent and distribution, must be construed to include an adopted child unless some good reason appears why a distinction should be made between a natural child and an adopted one. Of such cases the following are examples relied upon by the court below and by the respondent: Batchelder v. Walworth, 82 Atl. Rep. 7; Ross v. Ross, 129 Mass. 243; In Appeal of Rowan (Supreme Court of Pennsylvania), 19 Atl. Rep. 82; Riley v. Day, 88 Kan. 503; 129 Pac. Rep. 524; 44 L. R. A. (N. S.) 296; Atchison v. Atchison, 89 Ky. 488; 12 S. W. Rep. 942; 11 Ky. 705; Buckley v. Frasier, 153 Mass. 525; 27 N. E. Rep. 768; Warren v. Prescott (Maine), 84 Me. 483; 24 Atl. Rep. 948; 17 L. R. A. 435; Virgin v. Marwick, 97 Me. 578; 55 Atl. Rep. 520; Shick v. Howe (Supreme Court of Iowa), 137 Iowa 249; 114 N. W. Rep. 916; 14 L. R. A. (N. S.) 980; Martin v. Aetna Life Insurance Co., 73 Me. 25; Estate of Wardell, 57 Cal. 484; In re Newman's Estate (Supreme Court of California), 16 Pac. Rep. 887.

In Morse v. Osborne (New Hampshire, 1910), 77 Atl. Rep. 403; 30 L. R. A. (N. S.) 914, the New Hampshire supreme court held that an adopted child was not issue within the meaning of a statute giving the widow certain rights in her husband’s estate in the absence of issue of the marriage, although the statute provided that an adopted child should, for the purpose of inheritance by it and all other legal consequences and incidents of the natural relation of parents and children, be deemed the child of the parents by adoption. It reaffimed its determination in Murdock v. Murdock, 74 N. H. 77; 65 Atl. Rep. 392, that the statutory adoption of a child did not invest the husband with the common law right of curtesy. It distinguished Moran v. Stewart, 122 Mo. 295; 26 S. W. Rep. 962, upon the ground that under the Missouri statute the right, of the widow to take one-half in fee in lieu of dower was- made dependent on the husband dying without leaving a child capable of inheritance, and inasmuch as under the adoption statute the adopted child was made capable of inheritance, it was within the statute. Buckley v. Frasier, 153 Mass. 525; 27 N. E. Rep. 768, was distinguished upon the ground that a Massachuseits statute provided that, the word “child” should include adopted child. It agreed with the dissenting opinion in Markover v. Krauss, 132 Ind. 294; 17 L. R. A. 806; 31 N. E. Rep. 1047. It is not necessary, in my view, to go as far as the New Hampshire court did to determine the ease sub judice for, as T have above indicated, it seems to me that cases dealing with the construction of statutes of descent and distribution have but little, if any, application to a case resting upon a construction of our statute of wills. The distinc - tion is clearly drawn in the Indiana opinion in Markover v. Krauss, 132 Ind. 294; 31 N. E. Rep. 1047, and has been recognized in California. While the California court held {In the Matter of Wardell, 57 Cal. 484) that, under a statute which provided that, where the testator omits to provide in his will for any of his children, such child should have the same share in his estate as if he had died intestate; an adopted child was within the term “children,” yet it also held (In re Estate of Comassi, 28 L. R. A. 414) that under a statute providing that a will should be revoked upon marriage and the birth of issue, the adoption of a stranger in blood was not an issue of the marriage and could not be treated as its equivalent.

In Hockaday v. Lynn, 200 Mo. 456; 98 S. W. Rep. 585; 8 L. R. A. (N. S.) 117, it was held under a statute permitting a person to adopt a child as his Heir that an adopted child is not, by right of representation, entitled after the death of his adoptive parent, to take the intestate estate of the latter’s brother as his heir. In Phillips v. McConica (Supreme Court of Ohio), 59 Ohio St. 1; 51 N. E. Rep. 445, it appeared that the Ohio statute provided that the adopted child should be to all intents and purposes the child and legal heir of the person so adopting him or her, entitled to all the rights and privileges and subject to all the obligations of a child of such person, begotten in lawful wedlock. The court said: “But this is fax from providing that such adopted child shall be the issue of the adopter, and of his blood and of the blood of his ancestors," and it reached the conclusion that the adopted child, although enabled to inherit from its adopter, was not enabled through him to inherit from his ancestors. The court further said: “The ancestors of the adopter are presumed to know their relatives by blood, and to have them in mind in the distribution of their estates, either by will or descent, but they cannot be expected to keep informed as to adoption proceedings in the probate courts of the counties of this state; and to allow an adopted child to inherit from the ancestors of the adopter would often put property into the hands of unheard-of adopted children, contrary to the wishes and expectations of such ancestors." This case is in line with the determination in Stout v. Cook, supra. A case in line with Stout v. Cook and Phillips v. McConica is Jenkins v. Jenkins (Supreme Court of New Hampshire), 14 Atl. Rep. 557. There the testator left a will under which he gave to his son all his estate, and if the said son should die leaving no issue, then to the next surviving brother. The statute in reference to the adoption of children-provided that the adopted child should for the purpose of inheritance by such child and all other legal consequences and incidents of the natural relation of parent and child, be deemed the same as if he had been born to them in lawful wedlock, except that he should not be capable of taking property expressly limited to the heirs of the body of the parent or parents by adoption. The court held that,- notwithstanding the will did not expressly limit the devise to the heirs of the body, yet it was clear that the intention was that if the son died without leaving lawful heirs of his body the brother should have his estate, and the court said: “That intention could not be defeated by the substitution, after the testator’s death, of a different event from the one intended by him, nor by the attempt to supply the want of an heir of the body by any other than the natural, ordinary and lawful means. The testator would not have contemplated the adoption of a child to supply,the want of an heir to William. He could not have intended by the word ‘issue a child unlawfully begotten and never made legitimate by marriage with the mother. He intended an heir in fact and not one created for the purpose by subsequent legislation and judicial proceedings."

When we turn to cases from foreign jurisdictions in which the precise question now before the court had been at issue, we find the following situation: Under statutes similar to our Wills and Adoption acts, Indiana has held that the adoption of a child does not operate to revoke a will. Davis v. Fogle, 7 L. R. A. 485, approved Markover v. Krauss, 31 N. E. Rep. 1047. So has the California supreme court (In re Estate of Gomassi, supra) ; likewise the New York surrogate’s court. In re Gregory’s Estate, 37 N. Y. Supp. 925. Such, undoubtedly, will be the ruling in Ohio. In Iowa it has been held (Hilpipre v. Claude, 46 L. R. A. 171) that under statutes of that state a subsequent adoption of a child operates to revoke a will. But the Iowa court rested its determination upon the ground that under the local law of the state wills might be revoked other than by the methods prescribed by the statute and that the Adoption act permitted adoption which would confer upon the adopted child all of the rights, privileges and responsibilities which would pertain to the child if bom to the person adopting in lawful wedlock without qualification. The Iowa court distinguished Davis v. Fogle, In re Gregory’s Estate and In re Estate of Comassi. It seems to me that our statutory provisions are more nearly akin to those which were under consideration in the three latter cases than to those under consideration in the Iowa case. The Iowa court said: “The reasons for the rule that subsequent birth of a legitimate child to the testator before his death operates as a revocation of his prior will apply with equal force to a subsequent adoption under a statute like ours, containing no exceptions or qualifications, and declaring that the rights, duties and relations between parent and child by adoption shall in all respects, including the right of inheritance, be the same that exist by law between parent and child by lawful birth.” The supreme court of Illinois, in Flannigan v. Howard, 65 N. E. Rep. 782, held under a statute providing that if after making a last will and testament a child should be born to any testator, and no provision be made in such will for such child, the will should not on that account be revoked, but, &c., that an adopted child was within the meaning of the act. At the time the act was passed the Adoption act of Illinois, providing that the adopted child should be deemed for the purpose of inheritance by such child, and his descendants and husband or wife, and oilier legal consequences ancl incidents of the nahvral relation of parents and children, the child of the parents by adoption, the same as if he had been born to them in lawful wedlock,' except that he should not be capable of taking property expressly limited to the body or bodies of the parents by adoption, nor property from the lineal or collateral kindred of such parents by right of representation, was in effect. The Illinois court held that the effect of adoption was, under such a statute, the same as birth. It relied upon the Iowa case of Hilpipre v. Claude, supra, and the Massachusetts case of Sewall v. Roberts, 115 Mass. 262. It is significant that the Adoption act was in effect at the time of the passage of the act with respect to wills, and that the Adoption act conferred upon the parties all legal consequences and incidents of the natural relation of parents and children as did the Massachusetts act considered in Sewall v. Roberts.

I am unable to agree with the- Iowa court that there may not be a legitimate- argument made that the same reasoning does not apply in cases of adoption as in cases of birth and issue. Davis v. Fogle, supra; Phillips v. McConica, 51 N. E. Rep. 445; Stout v. Cook, 77 N. J. Eq. 153. And, as I have indicated, the court should go slow in interpolating words in the Wills act which must be interpolated in order that the position of the respondent may be sustained, if such an argument can be made.

The underlying reasons which actuate me in reaching the conclusion that I do are: Under the common law of this state wills were not revoked by the birth of subsequent issue (Van Wickle v. Van Wickle, 59 N. J. Eq. 317); revocation is worked solely by virtue of the provisions of the statute (contrary to the rule in Iowa); the Adoption act was not in force at the time of the passage of the provisions of the Wills act under discussion; it clearly appears from the context that the words in the Wills act “child,” “children” or “issue” .had reference to progeny; the provisions of the Adoption act being in derogation of the common law must be strictly construed; although that act purports to, in certain particulars, create a statute similar to that of the natural relation of parent and child, it does not operate to confer upon such status all of the consequences and incidents, with certain exceptions, as does the statute of Massachusetts, or with no exceptions, as does the statute of Iowa; it does not appear that within the legislative contemplation there may not be a legitimate distinction beween the effect of the birth of issue and the adoption of a child; the court ought, therefore, to go slow in amending by implication the clear language of the provisions of the Wills act; the determinations of the court of errors and appeals in Heidecamp v. Jersey City, &c., Ry. Co., 69 N. J. Law 284, and Stout v. Cook, 79 N. J. Eq. 640; affirming, 77 N. J. Eq. 153, seem to indicate that Humphries v. Davis, 100 Ind. 274, and Sewall v. Roberts, supra, and those cases resting upon the broad language of the courts there used are not persuasive in this state; the weight of authority in foreign jurisdictions where the statutes under consideration and the situations have been identical with those at bar is in accord with my conclusion.

Some of the cases, notably Humphries v. DaVis, have been hard ones. This case is. The equities are with the proponent of the will. The testator adopted a child, the caveator here, and made such adequate provisions for him as he thought proper. He created a trust. The result of denying probate to the will will be that the testator will be considered as having died intestate and the adopted child will receive a larger interest in the property than contemplated by the testator. The result is unfortunate, but I think relief must be had of the legislature and not of the judiciary. When the legislature used in section 21 of the Wills act the words “child or children born,” and referred to “after-born child” and “after-born children,” it defined the word “issue,” used in the twentieth section, to mean “heirs of the body.” To bring an adopted child within its provision, the date of adoption must bo considered the date of birth, for, of course, the adopted child may, although adopted after the making of the will, have been born before, and it is preposterous to suppose that if adopted children are within the purview of the statute if they were born before but adopted after the making of the will, the will remains valid. So, under section 21, if adopted children are within the purview of the statute, the date of birth must be disregarded and the date of adoption substituted.

My conclusion is that an adopted child is not issue within the purview of section 20 of the act concerning wills, and that therefore testator having no issue living at the time of the making of the will, and as he died with his wife enciente of a child who was thereafter born, the will is void and the testator must be deemed to have died intestate.

The decree of the orphans court admitting the will to probate will be reversed and the record remanded with direction to enter a decree denying probate.

Settle decree on two days’ notice.

SUPPLEMENTAL OPINION.

Since the filing of the opinion in the above-entitled matter the case of In re Puterbaugh's Estate, supreme court of Pennsylvania, has been reported, 104 Atl. Rep. 601. In that case the court held that under a will providing for a gift over after the death of an individual to his child or children and their heirs, the words “child” or “children” did not include an adopted child where the adoption occurred after the death of the testator, notwithstanding the fact that it was assumed that testator knew of existing legislation that enabled any proper person to adopt a child as his child and heir. This case is in line with our holding in Stout v. Cook, supra, and is opposed to Sewall v. Roberts, supra.


text:
    In the matter of the probate of the will of George H. Dodge, deceased.
    [Decided September 27th, 1918.]
    Notwithstanding that a will executed by a person domciled elsewhere at the time of Ms death, at a time when he was domiciled here with the formalities necessary under the laws of this state, but not with those required under the laws of the place of domicile at the time of death and which will cannot be probated at the place of domicile, may be a valid disposition of immovables within this state, it cannot be probated by the ordinary under the rule laid down in Chadwick’s Case, 80 N. J. Eq. 471.

    On application for probate.

      Messrs. Pitney, Hardin, & Skinner, for the probate.
   Lane, Vice-Ordinary.

The application is to probate a,.will of a deceased who, at the time of his death, was and had been for twenty years domiciled in Georgia. Prior to his removal to Georgia, the deceased had been domiciled in this state and his will was executed here while he was so domiciled. He left real property within this jurisdiction. Thé will was executed with the formalities necessary under the laws of this state, but not those required under the laws of Georgia. Application has been made to the Georgia probate court for probate and probate has been denied.

Counsel insist that the will having been executed in accordance with the lex rei sites and with the lex loci actios, it is a valid testamentary disposition of immovable property within this state, and they rely upon 1 Story Confl. L. § 474, and subsequent sections. 40 Oyc. tit. "Wills” 1074; Nelson v. Potter, 50 N. J. Law 324; Van Wickle v. Van Wickle, 59 N. J. Eq. 317; Jones v. Habersham, 107 U. S. 174; 27 L. Ed. 401; Robertson v. Pickrell, 109 U. S. 608; 27 L. Ed. 1049.

Whatever the fact may be this court is precluded by the broad language of the court of errors and appeals used in Chadwick's Case, 80 N. J. Eq. 471, from granting probate. That court said: “The plain common sense meaning to be given to the act is that the ordinary was limited to the probating of wills of those domiciled within the state, which was the limit of hU jurisdiction.” And the court affirmed the decree of the vice-ordinary denying probate upon the ground that neither the prerogative court nor the surrogate of any of the counties of this state have general jurisdiction to admit to probate the last will and testament of a non-resident having a domicile at the date of his death in another state, although such nonresident left property within this state except as ancillary to a probate by the courts of the locality of such domicile. The present ordinary (In re Geiser’s Will, 82 N. J. Eq. 311) said: “The power of this court to admit to probate the will in question must rest exclusively upon the deceased, having been domiciled in this state at the time of her death; and if she were not, probate must be denied.”

The result is that until there is additional legislation, there is no way by which a permanent record can be made of a will of a non-resident not entitled to probate at the place of domicile, but valid, if in fact it be, for the purpose of passing real property in this state.

Probate must be denied.