text:
    DONALD F. HYDE AND MARY C. HYDE, HIS WIFE, COMPLAINANTS, v. SOMERSET AIR SERVICE, INC., ET AL., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided October 8, 1948.

      Messrs. Young, Shanley, Foehl & Fisher, (Mr. Bernard M. Shanley, of counsel), for the complainants.

      Messrs. Wharton & Hall, (Mr. T. Girard Wharton and Mr. William T. Stewart, Jr., of counsel), for the defendants.
   Jayne, J. S. C.

Noise which is created by the pursuit of a lawful enterprise has no inevitable immunity from judicial suppression. It may have the characteristics which constitute an actionable nuisance. It must, however, be of that quality which affects injuriously and to an unreasonable degree the health or comfort of persons of ordinary sensibilities in the vicinity and exceeds the bounds of reasonable adjustment to the conditions of the locality. Thus, although the noises may emanate from the conduct of a business duly licensed by the State because of its public advantages, the character, volume, frequency, duration, time, and locality of the .noises continue to be relevant factors in determining whether the alleged annoyance surpasses the requirements of the business operations and in fact unreasonably interferes with the ordinary comfort of human existence in the neighborhood. Benton v. Kernan, 130 N. J. Eq. 193, 21 Atl. (2d) 755; Vaszil v. Molnar, 133 N. J. Eq. 577, 33 Atl. (2d) 743; Kosich v. Poultrymen’s Service Corp., 136 N. J. Eq. 571, 43 Atl. (2d) 15; Oechsle v. Ruhl, 140 N. J. Eq. 355, 54 Atl. (2d) 462.

The maxim, sic utere tuo ut alienum non laedas, tersely expresses the established doctrine of the law. And so in such cases it is a question of what’s what rather than who’s who. Indeed, the Legislature or governmental agencies cannot constitutionally confer upon individuals or private corporations, acting primarily for their own profit, although for public benefit as well, any right to deprive persons of the lawful enjoyment of their property. Pennsylvania R. R. Co. v. Angel, 41 N. J. Eq. 316, 7 Atl. 432; Kosich v. Poultrymen’s Service Corp., supra; Oechsle v. Ruhl, supra.

The present alleged cause of action relates to the asserted objectionable operations of an airport under the management of the defendants in the Township of Branchburg, Somerset County.

Initially, it must be understood that the primitive common law doctrine that ownership of land extended to the periphery of the universe (as expressed in the figurative phrase, cujus est solum, ejus est usque ad caelum) has been substantially disestablished. The air has become a public highway, yet the landowner in the present day owns at least as much of the super-adjacent space above the ground as he can occupy and utilize in connection with his land. The law preserves the proper enjoyment of the land and consequently recognizes the exclusive control of the owner over “the immediate reaches of the enveloping atmosphere.” United States v. Causby, 328 U. S. 256, 66 S. Ct. 1062; see, Hinman v. Pacific Air Transport, 84 Fed. (2d) 755 (C. C. A. 9th 1936;, cert. den. 300 U. S. 654, 57 N. Ct. 431.

Private convenience must often in our modern environments yield to public convenience, but private comfort, health, and safety are still precious in the eyes of the law. Hennessy v. Carmony, 50 N. J. Eq. 616, 25 Atl. 374; Reilley v. Curley, 75 N. J. Eq. 57, 71 Atl. 700.

A pertinent exemplification of that quality of our law is found in the statute. R. S. 6:2-6, N. J. S. A.

“Flight in aircraft over the lands and waters of this state is lawful, unless at such a low altitude as to interfere with the then existing use to which the land or water, or the space over the land or water, is put by the owner, or unless so conducted as to be imminently dangerous to persons or property lawfully on the land or the water beneath. * * * ”

With like intention the State Aviation Commission was created and invested with the-power to promulgate reasonable rules and regulations not only to encourage “the development of aeronautics in this State” but to guard “the public safety.” R. S. 6:1-29, N. J. S. A.

.And so it must be here acknowledged that the corporate defendant has the lawful authority by virtue of its license to maintain and operate its airport. Its mere existence and use do not constitute a nuisance per se. Thrasher v. Atlanta, 178 Ga. 514, 173 S. E. 817, 818, 99 A. L. R. 158. It is equally true that a landing field and flying school may 'become a nuisance if conducted in such an offensive manner as to interfere unreasonably with the general standard of comfort of neighboring property owners. Swetland v. Curtis Airport Corp., 41 Fed. (2d) 929, on appeal 55 Fed. (2d) 201.

In my study of the relevant authorities I have observed that in these cases relief has been sought by the aggrieved property owners either upon the theory of nuisance or upon the ground of trespass, or both. One of the earliest adjudications concerning the relative rights of the aviator and the landowner was announced by the Supreme Judicial Court of Massachusetts in Smith v. New England Aircraft Co., Inc., 270 Mass. 511, in which the invasion at low altitudes of the unoccupied air space over the land was recognized as a technical trespass. The oppugnant rationale maintains that- by the common law, interpreted in the light of modern conditións, there exists a public right of aviation over the lands of all owners at any height which, without -contact with anything connected with the land, does not thus interfere with the existing use of the property. It prefers to measure the responsibility and conduct of the aviator in the application thereto of the established elements of a private nuisance. Both theories have able and learned advocates. Many -articles on the subject, published in legal periodicals, are cited in Burnham v. Beverly Airways, Inc., 311 Mass. 628; see, also, Delta Air Corp. v. Kersey, 193 Ga. 862, 20 S. E. (2d) 245, 140 A. L. R. 1352. It is sufficient to say that the flight of aircraft across the land of another cannot be said to be a trespass without taking into -consideration the question of altitude. It has been said that in cases of this nature the -law of private nuisance is a law of degree, hence projecting in each case the factual question whether there is an appreciable and substantial injury causing material discomfort and annoyance.

Led by the foregoing observations, I have undertaken the consideration of the occurrences and accompanying circumstances revealed by the evidence in the present case. It is gratifying to state that the evidence was of a high quality, exceedingly informative and skillfully marshalled and presented -by counsel. Aerial photographs were exhibited, decibel readings of the noise levels of the planes were disclosed, meteorological data supplied, and actual recordings of the noises were reproduced in court. The inclusion here of a narrative of the evidence, although time-consuming, would afford me some compensating pleasure, but I understand that brevity is now to become the fashionable quality of the judicial opinions of our state courts.

Accordingly I shall pass directly to a summary announcement of my findings of fact:

1. The airport itself, as located and designed, is not an actionable nuisance.

2. Complainants’ contention that it is impossible to -conduct the airport in an unobjectionable manner is not adequately established by the evidence.

3. From the inception of the enterprise and during a period thereafter the defendants conducted and indulged in repeated plane flights either directly over or in relatively close proximity to the residence of the complainants at altitudes sometimes as low as 300 feet.

4. The consequential noises of such flights were startling and harassing, and the proximity of the planes was menacing and alarming, thereby unreasonably and unjustifiably impairing in a substantial degree the peaceful use and occupation of the complainants’ dwelling, against which annoyances the complainants are entitled to injunctive relief.

5. Such flights were not motivated by any malevolence on the part of the defendants.

6. Specific flight patterns with accompanying .instructions •have now been devised and posted and circulated, which, if obediently pursued by all avia-tors and student flyers using the ■defendants’ airport, will materially abate the former annoyances.

7. There is -some evidence tending to prove that the defendants have not strictly -complied with those more recently adopted flight patterns.

In the circumstances a judgment will -be entered enjoining the defendants, in the absence of emergency, from -operating their planes directly over and within a stated distance from the buildings of the complainants, and directing them to comply until the further order or judgment of the court with the flight patterns and instructions to which the pertinent testimony has related. The judgment must be prepared in accordance with the requirements of Rule 3 :65-5.


source: Caselaw Access Project

author: Haneman, J. S. C.

license: Public Domain

text:
    ALFRED E. WEBER ET AL., PLAINTIFFS, v. DANTE DE CECCO, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided October 14, 1948.

      See, also, 26 N. J. Misc. 47, 56 A.2d 414.

      Mr. Samuel P. Hagerman, for plaintiffs.

      Mr. Wilfred B. Wolcott, for defendant.
   Haneman, J. S. C.

This is a suit seeking to restrain the defendant-landlord from interfering with the quiet and peaceful possession of tire plaintiff-tenants. The facts as alleged in the pleadings and as adduced at the time of trial demonstrate that on or about September 1, 1939 the parties hereto entered into a written lease signed by the plaintiffs and the defendant for the rental of a certain parcel of real estate situate in Runnemede, New Jersey. The term as expressed in this lease was “for the term of sixty months (60)” from the first day of September, 1939.

Alfred E. Weber testified that sometime prior to September 1, 1944, that being the date of the expiration of the term provided for in said lease, he requested the defendant to renew the lease for an additional term of five years. This the defendant refused to do, unless the plaintiffs would reconstruct or repair a cesspool on said premises. The plaintiffs did thereafter undertake the reconstruction or repair of said cesspool and -completed the same within the month succeeding September 1, 1944. Sometime subsequent to September 1, 1944 the defendant requested the plaintiffs to produce and deliver to him the original lease. Thereafter, and still within the month of September 1944, the defendant returned the original lease, in the body of which had been inserted the following provision: “renewed for sixty months (60) from the first 'day of September, 1944.”

The defendant, on the other hand, testified that the lease had been delivered to him at his request in connection with an oft-repeated and almost continual demand by the plaintiffs for a renewal thereof. He disputed plaintiffs’ testimony that the cesspool had been completed in September, and further testified that the old lease, with the above phraseology, was not returned to the plaintiffs until January 1945. When asked the direct question as to why he had inserted the above phraseology and re-delivered the lease to the plaintiffs, he stated that it was as a result of their plaguing him for a renewal; that he desired to do the right thing; and that he thought this renewed the lease. Thereafter, there ensued varied and various attempts by the defendant to re-obtain possession of the leased premises, including several actions for such possession in the Camden District Court.

On the cardinal questions there is no dispute. The lease dated 1939 was delivered to the defendant after the expiration of the term therein provided, for the purpose of obtaining a renewal. Defendant typed the words above quoted in the body of the lease, above the signatures written in 1939, with the intent of renewing the lease for a period of sixty months and ■then delivered the same to plaintiffs.

The very narrow and restricted question here involved is whether the lease, as offered in evidence, complies with R. S. 25:1-1, which reads as follows:

“All leases, estates, interests of freehold or term of years, or any uncertain interest of, in, to or out of any real estate heretofore or hereafter made or created by livery of seizin only, or by parol, and not put in writing, and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases or estates at will only, and shall not, either in law or equity, have any other or greater force or effect, any consideration for making any such parol leases, estates or interests notwithstanding.
“This section shall not apply to leases not exceeding the term of three years from the making thereof.”

It is conceded that the alleged tenancy commencing September 1, 1944, being for a period longer than three years, must be in writing “and signed by the parties.” Defendant contends that the alleged lease, as offered, does not comply with such statute, in that it was not physically signed in 1944. We are, therefore, confronted with the question as to whether, under the facts, the signatures appended to the lease on September 1, 1939 can be considered the signatures to a lease, the term of which was to commence September 1, 1944.

It is to be remembered that the section above referred to is a portion of our Statute of Frauds which we obtained from the English statute entitled “An Act for the Prevention of Frauds and Perjuries.” This statute was originally enacted to prevent fraud and perjury in the enforcement of obligations depending for their evidence on the memory of witnesses by requiring certain enumerated contracts and transactions to be evidenced by a writing signed by the parties. There is no requirement in the statute that the signature be in definite or particular form. It has been held that typewritten or printed names, signatures in ink or pencil, or any name or symbol used by a party with the intention of constituting it his signature, is sufficient to comply with the statutory requirements. 37 C. J. Sec., par. 22; 40 Am. Jur., par. 377.

Restatement of the Law, Contracts, par. 210, reads as follows:

“The signature to a memorandum under the Statute may be written or printed and need not be subscribed at the foot of the memoran-' dum, but must be made or adopted with the declared or apparent intent of authenticating the memorandum as that of the signer.”

It is therefore apparent that in the first instance the lease would have been effective if it contained a name, initial or symbol affixed thereto by the parties with the intention that it should be recognized as their signatures.

In Mutual Benefit Life Insurance Company v. Brown, 30 N. J. Eq. 193, the court had before it the question of whether a conveyance of real estate complied with the Statute of Frauds where the grantor’s name was not written by him but was written in his presence and by his direction. In considering this question, the court there said.:

“But the authorities hold that if the grantor’s name is written by the hand of another, in his presence and by his direction, it is his act, and the signature, in point of principle, is as actually his as though he had performed the physical act of making it. Gardner v. Gardner, 5 Cush. 483; Irvin v. Thompson, 4 Bibb 295; Ball v. Dunsterville, 4 T. R. 313; 2 Greenl. Cruise 333, sec. 60; Story on Agency, sec. 51; 2 Greenl. Ev. sec. 295-. Mr. Browne, in his treatise on the statute of frauds, seems to dissent from this view. He does not consider Gardner v. Gardner as an authority directly on the point, inasmuch as the statute under which it was decided did n.it, in express terms, require the authority of the agent to be evidenced by writing; and therefore says, when the question arises under a statute containing that provision, a problem of considerable difficulty will be presented. Browne on Frauds, sec. 12. A person physically unable or too illiterate to write his name, may sign by making a cross, a straight or a crooked line, a dot, or any other symbol. Simply making a mark by bringing the pen in contact with the paper is sufficient. The right to sign in any of these modes cannot, in principle, depend wholly upon the question of capacity.
“I do not believe the legislature intended to give any such extraordinary virtue to the mere physical act of touching a pen to paper as to mean that a deed should be valid if it was done, but invalid if it was not done, though the grantor adopted the signature made for him by a delivery of the deed and an acceptance of the consideration. The essential ingredient of the transaction, in the language of Chief Justice Shaw, is the disposing purpose, an intention, by the act done or directed, to divest himself of title and pass it to the grantee. If this is the purpose of the grantor’s mind, the deed is his, though his name be traced by the hand of another.”

It follows, therefore, that if in the first instance the landlord was not required to actually and physically append his own signature to the instrument upon which suit is brought, that it would as well not have been necessary in the event of an alteration or modification of the same instrument. Whether the act accomplished by the defendant was an alteration or modification of the original lease, or whether it is to be considered a re-executed and re-published document, is of no moment. The same rules would apply in either event. An alteration or modification, even of a sealed instrument which has been previously signed, is as effective as if such signature were printed subsequent to the alteration.

Volume 6, Williston on Contracts, page 5321, reads as follows:

“A sealed instrument takes its validity from delivery, and the maker may adopt a signature or seal previously made and mak" them his own by delivering them as his. A re-delivery, therefore, of a sealed instrument by the obligor after it has been altered will make it binding in its altered form. A prior consent to an alteration can hardly amount to a re-delivery after the alteration, but if the maker himself assists or takes part in the alteration it would generally be easy to find a new delivery, and courts which, like those of England, hold that there is always a delivery when the maker of a deed indicates his assent to be bound by it as a completed instrument have no difficulty in finding delivery when the maker after an alteration has been made ratifies it.”

This rules prevails even though the alterations were originally fraudulent if there is an assent to the altered terms. Re-Statement of the Lava, Contracts, page 820, reads as follows:

“If a material and fraudulent alteration is made by one party to a written contract or memorandum, and the other party, with knowledge of the facts, manifests
(a) assent to the altered terms, the manifestation operates as an acceptance of an offer to substitute for the original contract or memorandum an agreement in the altered form

It is as well a compliance with the statutes if the parties adopt a prior signature made by them with the intent to authenticate the instrument. 37 C. J. Sec., par. 22.

In Vidvard v. Cushman, 35 Hun, 18, the court had before it an almost identical situation to that now before the court, in that the lease, after original execution but during its term, was altered by the insertion of an additional provision. The court there said:

“By the consent of the parties a new stipulation may be added to a contract subsequent to its execution; if the new stipulation is evidenced and executed in the mode that the original contract is required to be evidenced and executed. (French v. Patton, 9 East, 350; Whart. Ev., sec. 624; 1 Chit. Con. (11th Am. ed.), 155; Reed on Statute of Frauds, sec. 454; Leah’s Con., 795.)
“The original lease, and the lease as modified, being for terms longer than a year, were required by the statute of frauds to be in writing and signed by the lessors. The original lease was in writing and so was the modified lease. It is urged that the new lease is not binding, because it was not re-signed by the lessors and re-delivered. The added stipulation was written in the lease by one of the lessors in the presence and with the assent of the lessee. The signatures of the contracting parties were then upon the lease. This was a good execution of the new or modified lease. (Bluck v. Gompertz, 7 Fxchq., 862; Woolley v. Constant, 4 Johns., 54; Knapp v. Maltby, 13 Wend., 587; French v. Patton, 9 East. 350; Leake’s Law of Contracts, 814, 815.] The transaction between the parties, as found by the court, amounts to a re-execution and re-delivery of the lease in its modified form, and it became as binding in that form as though it had been re-drafted and re-signed. Re-writing or re-signing, or both, would have added nothing to its validity. As was well said by Justice Vann at Special Term, ‘the signatures were there and it was intended they should remain there when the alteration was made. The parties regarded and treated them as their signatures to the instrument as changed. Under such circumstances, was it necessary to re-trace or re-write their names? • To re-trace with a dry pen would seem absurd, while to retrace with a wet one would obscure the identity of the signature. Would either of these idle ceremonies adopt the signatures already appended more effectually than simply writing in the words, making the change, in the presence of all the parties and with their consent?’ ”

See also Brudno v. Kohn, 170 N. E. 581, 34 Ohio App. 133.

It therefore follows that the question of whether the insertion of the phraseology extending the term of a written lease originally signed by the parties but not thereafter resigned is a compliance with the Statute of Frauds, turns upon the intention of the parties. It revolves about whether they intended to adopt the original signatures. Under the facts, it seems dear that the lease was delivered to the defendant with the intention of obtaining a renewal thereof; that the defendant inserted the phraseology for this purpose, and by his redelivery to plaintiffs signified his willingness to adopt the original signature ■ and so to be bound. Although there were no formal words used expressing this intent, the acts and conduct of the parties lead only to one conclusion, and that is that it was their intent. The desire to recognize the prior signatures was inartistically expressed but the conversation and conduct is demonstrative of an intention to recognize and republish the original signatures. The lease above referred to is, therefore, considered as complying with the pertinent section of the Statute of Frauds, and the relief requested by the plaintiffs will be granted.


author: Grimshaw, J. S. C.

text:
    DAVID J. W. BELL, PLAINTIFF, v. ANNA W. J. BELL, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided November 3, 1948.

      Mr. Lloyd L. Schroeder, attorney for plaintiff.

      Mr. Francis A. McEntee, attorney for defendant.
   Grimshaw, J. S. C.

The plaintiff, David J. W. Bell, and the defendant, Anna W. J. Bell, are husband and wife. He seeks to have certain property standing in the name of Anna W. J. Bell declared to be held by her in trust for his benefit. Bell also asks that the property he conveyed to him.

Plaintiff had been married previously and divorced. The property in dispute had been acquired during the prior marriage. When that union was about to terminate the property was conveyed to Douglas S. Bell, brother of the plaintiff, in trust for the plaintiff.

Plaintiff and defendant were married on March 25, 1938. The disputed deed from Douglas S. Bell and Margaret F. Bell, his wife, to Anna W. J. Bell was dated February 10, 1938, before the defendant had become Anna Bell, but was recorded in April, after the marriage had taken place. Bell testified that he and the defendant, Anna Bell, together with Douglas Bell and his wife, met at the office of the building and loan association which held the mortgage on the property. The deed was signed by Douglas Bell and his wife, and then plaintiff, according to his story, told the defendant that the property was being transferred to her to hold until he wanted it deeded to him or to someone he should designate. To this, Bell said, defendant agreed. Douglas Bell testified that the property was turned over to the defendant "with the understanding when he wanted it back to do as he saw fit it would be turned over.” Douglas Bell could not remember the exact conversation'. Mrs. Douglas Bell, who was present at the meeting, testified that there was no discussion between the parties as to the conditions under which the property was transferred. She stated that her husband said they wanted the deed signed and she signed it.

Anna Bell, the defendant, testified 'that shortly after the marriage, and while she was still living in her own home, Bell came to her and told her that he was turning over the property to her. Anna Bell expressed surprise but said that if he wanted to turn over the property she had no objection. She denied having been at the building and loan office and said that the first time she saw the deed was some years later when she paid off the mortgage. She also denied that Bell put any condition upon the transfer. Somewhat in corroboration of Anna Bell’s testimony, and in conflict with his direct testimony, Bell testified on cross-examination that after the marriage he told Anna Bell that title to the property had been put in her name. He could not recall what she said about it.

Two witnesses called by the plaintiff testified to statements made by Mrs. Bell concerning the property. There was no attempt to fix the time when the statements were made nor was there any effort on the part of the witnesses to give the exact language of the statements. Some letters written by the defendant were offered in evidence. They were written in 1941, three years after the transfer was made. They referred to promises made by the defendant to turn the property over to the plaintiff. They did not say when or under what circumstances the promises were made. Defendant admitted authorship of the letters. She said that upon occasion the plaintiff would become intoxicated and beat her. He would demand the conveyance of the property to him. She stated that the promises were made and the letters written in an endeavor to placate Bell. Whether or not that testimony is true, neither the letters nor the testimony concerning the statements made by the defendant are of any help in' solving the problem. They are too remote in point of time from the date of the transfer of the property.

The rule in this state is well settled that where a husband procures real estate to be conveyed to his wife, he paying the consideration, a presumption arises that he intends to settle the property on her, and while such presumption may be rebutted, the proof offered to accomplish it must be certain, definite, reliable and convincing, leaving no reasonable doubt of the intention of the parties. And the proof relied on to rebut the presumption of a settlement must he of facts antecedent to or contemporaneous with the purchase or else immediately afterwards so as to be, in fact, part of the same transaction. McGee v. McGee, 81 N. J. Eq. 190, 86 A. 406.

Plaintiff’s proofs fail to meet the standards set by the rule. His testimony concerning the conditions placed upon the transfer was corroborated rather weakly 'by his brother. On the other hand, defendant denied that Bell told her that she was to hold the property for him. In this she was corroborated by Mrs. Douglas Bell, the only unprejudiced witness who testified that there was no discussion of conditions when the transfer was made.

Plaintiff, having failed to overcome the presumption of a gift, there must be a judgment for the defendant.


author: Jayne, J. S. C.

text:
    LESTER’S HOME FURNISHERS, INC., PLAINTIFF, v. MODERN FURNITURE CO., ET AL., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided October 29, 1948.

      Mr. Morris Spritzer, for the plaintiff.

      Mr. Herman H. Anekstein, for the defendants.
   Jayne, J. S. C.

At the pre-trial conference the question arose whether this alleged cause of action formerly instituted in the Court of Chancery should be heard by the Chancery Division or tried by a jury in the Law Division of this court.

Summarily stated, the plaintiff, a lessee in possession prays for a judgment commanding the defendants as lessors specifically to perform a covenant to make alterations and improvements in the building situate on the demised premises.

It is suggested by counsel for the defendants that the plaintiff in view of the circumstances has mistaken its remedy and that the pleadings should be appropriately amended to enable the plaintiff to seek recovery of compensatory damages at law. Moreover, he represents orally that a judgment of specific performance, if rendered, would he vain since the defendants do not have the capital with which to finance the required work.

It may be said with reasonable certainty that courts of equity jurisdiction will not ordinarily undertake to enforce the performance of so-called building and construction contracts. The general policy inheres in the circumstance that in most instances damages at law constitute an available and adequate remedy and, additionally, in the practical inability of the court to compose a judgment or decree embracing with requisite precision the specifications of the work and to engage in the supervision of its performance.

However, not unlike many general rules and policies, there are exceptions. To identify the exceptions reference in our jurisdiction is usually made to the decision of Vice-Chancellor Learning in Atlantic & Suburban Ry. Co. v. Atlantic Freeholders, 84 N. J. Eq. 618, 94 Atl. 602, where the concurrent elements essential to create the exception are defined as follows: “1. In each case, the building was -to be done upon the land of the person who agreed to do it. 2. The consideration for the agreement, in every instance, was the sale or conveyance of the land on which the building was to be erected; and the plaintiff had already, by such conveyance on his part, executed the contract. 3. In all of them, the building was in some way essential to the use or contributory to the value of adjoining land belonging to the plaintiff.”

Here the plaintiff is in possession of the premises in the enjoyment of its leasehold estate. It has long been the general rule that Chancery will not assume to compel a defendant specifically to perform a contract to build, construct, or repair a building situate upon the plaintiff’s land or upon land over which the plaintiff maintains legal control. 164 A. L. R. 804, 807.

It may be proposed that the general rules to which reference is made have been subjected to additional exceptions by the adjudications-of more recent date. Whether such adjudications should be- characterized as modifications or exceptions, or regarded as cases significantly divergent and distinguishable in nature remains at most debatable. Cf. Zygmunt v. Avenue Realty Co., 108 N. J. Eq. 462, 155 Atl. 544; Fiedler, Inc. v. Coast Finance Co., Inc., 129 N. J. Eq. 161, 18 Atl. (2d) 268.

I peruse the complaint and its amended schedules and exhibits to ascertain the nature and extent of the construction work, the performance of which the court is requested to enforce. Whether plans and specifications prepared by a registered architect have been approved by the parties and signed by them as contemplated by the terms of paragraph 28 of the lease is not made evident. Observable, however, is “Exhibit II,” a supplemental agreement which is perhaps sufficiently expository of the general character of work. I quote from it:

“1. That in addition to the work to be done by the landlord as set forth in the plans made by HARRY G. BACK, architect, which has been initialed by the parties this day, the landlord agrees to do the following:
“(a) to remove the existing seven (7) windows on the main floor of the two (2) buildings 48 to 52 Church Street, New Brunswick, N. J. and to replace them with three (3) large windows, according to plan,
“(b) to extend and enlarge the main floor by approximately eighteen (18) feet in the depth,
“(d) to repair the floor on the main floor so as to match the existing floor,
“(e) to match incomplete or barren portions of the ceiling of the main floor to match the existing ceiling, as near as possible,
“(f) to remove partition brick wall on main floor and to erect iron girders and columns thereat so as to carry the weight of the wall thereat,
“(h) to remove the two light columns on the main floor and to replace the same with one heavier and larger column so as to carry weight of roof and wall,
“(i) to remove the stairs now contained in premises 52 Church Street,
“(j) to extend the floors on the 2nd and 3rd floors of the premises to the corresponding floors of buildings 48-50 Church 'Street. The entire floor of the 2nd floor as extended to be of new flooring complete throughout,
“(k) to remove the partitions on second and third floor-s of No. 52 Church Street and replace the same with wooden beams so as to support adequately the weight of the roof and floors,
“(1) to construct one (1) entrance on each floor for all the buildings (48 to 52 Church Street),
“(m) to remove existing window in building 52 Church Street and replace with large windows to match windows in buildings No. 48 to 50 Church Street,
“(n) to lower the steps and extend the stairway in buildings No. 48 to 50 Church Street, so as to accommodate ingress and egress of furniture.
“2. Tho landlord expressly agrees to paint or paper the 2nd and 3rd floors of building No. 52' Church Street, to suit the tenant.
“3. The landlord further expressly agrees to furnish and install porcelain enameled steel or black glass at tenant’s election, on the face of the building as indicated on the plan and on the base of the windows and on the columns.
“4. Tho landlord expressly agrees that all the floors of the leased premises are to bo level and in good condition.”

Paragraph 4 of the complaint invites attention to the attached “Exhibit III” which specifies “but not limited thereto” the respects in which the defendants have failed to obey the covenants to remodel tho building. Again I quote:

“(1) New and existing floor not properly matched.
“(2) New and old ceiling not properly matched.
“(3) First floor columns not properly replaced.
“(4) Second and third floor flooring incomplete.
“(5) Stairway between 48 Church Street and 50 Church Street improperly done.
“(6) Ceiling in vestibule cracked and peeling off.
“(7) Floor in vestibule rough and uneven.
“(8) Many baseboards omitted, those installed not matched to existing ones.
“(9) Floors throughout premises not level or in good condition.
“(10) Premises not delivered broom clean, much rubbage and useless debris remaining on premises.
“(11) Heating system not properly'repaired as agreed; repairs to same made by complainant at its expense. ,
“(12) Third and fourth floors never finished for occupancy.
“(13) Entire work done by patch-work methods with inferior methods, without proper finish, and of general poor quality, contrary, to and below standards specified.”

It must, I think, be conceded that the items of renovation and construction work are numerous, and noticeably diversified. Moreover by their nature they are such as to render their actual performance and accomplishment provocative of frequent disputes. “The difficulty in supervision that would be necessary is obvious.” Fiedler, Inc. v. Coast Finance Co., Inc., supra.

The term of the tenancy extends to April 30, 1956. The annual rental is $4,950 payable in monthly instalments. The plaintiff has accepted possession notwithstanding the alleged breach of the lease by the landlord. It seems quite possible for the plaintiff to establish at law its consequential damages by proceeding to acquire the improvements initially at its own cost. If the breach of -the covenant and its resultant loss are thus established, the liability will fall upon the defendant-lessors. It is not manifest that such a remedy will be inadequate. 5 Williston on Contracts (Rev. ed. 1937) 3913, § 1404: 32 Am. Jur. 592, §§ 717, et seq.

It is to be acknowledged that the presentation of this subject to me in this manner is somewhat informal, but counsel have recommended it to be expedient, and the authority for the judicial action here taken seems to be within the circumference of Rule 3:40-3.

The complaint will not be dismissed. An order will be entered authorizing the desirable and appropriate amendments of the pleadings and the transfer of the action to the Law Division for trial.


author: Freund, J. S. C.

text:
    NEW JERSEY USED CAR TRADE ASSOCIATION, A CORPORATION OF NEW JERSEY, ET AL., PLAINTIFFS, v. ARTHUR W. MAGEE, COMMISSIONER OF MOTOR VEHICLES OF THE STATE OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided October 7, 1948.

      Mr. Henry Gottfried, attorney for plaintiffs (Messrs. Milton M. and Adrian M. Unger, of counsel).

      Mr. Walter D. Van Riper, (Mr. John J. Kitchen) for State of New Jersey.
   Freund, J. S. C.

The facts in this case have been stipulated. This is a class action brought by five plaintiffs against the Commissioner of Motor Vehicles, inter -alia, to enjoin the revocation of their motor vehicle dealers’ licenses and dealers’ registrations for failure to comply with the provisions of sect on 15 of chapter 136 of the Laws of 1946 (R. S. 39:10-19) on the ground of unconstitutionality.

The plaintiffs are New Jersey Used Car Trade Association, a non-profit corporation having a membership of approximately 300 used car dealers; William Grohman, who for the past five or six years has sold only trailers; and three other individuals, Platt, Pennington and Mauro, dealers selling used cars from vacant lots. It is alleged that there are some 1,500 used car dealers in New Jersey and the Commissioner has notified about 300 of them of the proposed revocation of 'their licenses for the same non-compliance with the aforesaid statute. This suit is brought by plaintiffs on their own behalf and on behalf of all others similarly situated. It is, therefore, precisely the kind of a class action contemplated by Rule 3 :23-1 governing civil practice in the Superior Court.

Involved in' the litigation is the constitutionality of chapter 136 of the Laws of 1946, known as the “Motor Vehicle Certificate of Ownership Law” and particularly sections 15 and 16 thereof. (R. S. 39:10-19 and 20). The pertinent provisions of section 15, (R. S. 39:10-19), provide “No person shall engage in the business of buying, selling or dealing in' motor vehicles in this state, unless he is authorized to do so under the provisions of this chapter. The commissioner (of Motor Vehicles) may, upon application in such form as he prescribes, license any proper person as such dealer. No person * * * shall be'eligible to receive a license (unless) each applicant for a license shall at the time such license is issued have established and maintained, or, by said application shall agree to establish and maintain, within ninety days after the issuance thereof, a place of business consisting of a permanent building not less than one thousand square feet of floor space located in the State of New Jersey; to be used principally for the servicing and display of motor vehicles with such equipment installed therein as shall be requisite for the servicing of motor vehicles in such manner as tO' make them comply with the laws of this State and with any rules and regulations made by the Commissioner of Motor Vehicles governing the equipment, use and operation of motor vehicles within the state.”

Section 16, (R. S. 39:10-20), provides that the Commissioner may suspend or revoke the license of a dealer for failure to maintain such a permanent building and equipment as described in the preceding section.

The Commissioner of Motor Vehicles, pursuant to the provisions of the statute, has directed the plaintiffs and a large number of used car dealers who carry on their business from lots without permanent buildings and equipment as provided in the statute, to appear before him to show cause why their licenses should not be revoked and he threatens- in the enforcement of the statute to revoke their licenses for non-compliance. The plaintiff, Grohman, who deals only in trailers, has a building with the required 1,000 square feet of floor space on two floors, but he has been threatened with revocation' of his license, because the area is not on one floor.

Plaintiffs challenge the constitutionality of the statute on several grounds, but it will suffice for us to consider but two, as follows: (1) that the requirements impose unlawful restraints upon the use of private property and the conduct of legitimate business and that it is an unconstitutional exercise of the State’s police power and deprives plaintiffs of their property without due process of law, and (2) that the statute fails to set up any definite standards of conduct and constitutes an unlawful delegation to an administrative authority.

First: The business of selling used cars is a legitimate business and plaintiffs having been for many years duly licensed to engage in that business are entitled to the constitutional safeguards in the continuance of their business, for, as Mr. Justice Oliphant, then Chancellor, said in Kravis v. Hock, 136 N. J. Law 161, (E. & A. 1947), “The right of a person to work in trade or business is as much a property right as that of a licensed physician to practice his profession.” It is apparent that the effect of the enforcement of section IS would be to drive out of business those used car dealers who carry on their trade or business from lots. A statute having such an effect is in clear violation of both the Federal and State Constitutions.

The problem confronting the -court in the instant matter is not new. The application of the principles to various statutes affecting different businesses has been before the courts of this state in recent cases. Watchung Lake, Inc. v. Mobus, 119 N. J. Law 272 (Sup. Ct. 1938); Regal Oil Company v. State, 123 N. J. Law 456 (Sup. Ct. 1939); State v. Garrubo, 124 N. J. Law 19 (Sup. Ct. 1940); N. J. Good Humor, Inc. v. Bradley Beach, 124 N. J. L. 162 (E. & A. 1939). The general rule was succinctly stated by the United States Supreme Court in Lawton v. Steele, 152 U. S. 133, 38 L. ed. 385, 14 Sup. Ct. 499, thus:

“To justify the State in thus interposing its authority in behalf of the public, it must appear, first, that the interests of 'the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. In-other words, its determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the. courts.”

In New Jersey Good Humor, Inc. v. Bradley Beach, supra, Mr. Justice Heher speaking for the Court of Errors and Appeals said:

“The restraints and regulations imposed for the general good and welfare must needs have the virtue of reasonableness. There cannot bo in the name of police regulation, an unreasonable and oppressive curtailment of personal or property rights. * * * And it goes without saying that an exertion of the public power, affecting personal and property rights., is nugatory unless made in good faith for the attainment of a public object within its cognizance. If the dominant purpose be the service of private interests under the cloak of the general public good, it must be adjudged a perversion of the power.”

In Regal Oil Co. v. State, supra, Mr. Justice Perskie speaking for the Supreme Court said:

“The legal principles involved are rather well established. While it is true that a state may, in the exercise of its police power, pass legislation for the purpose of protecting and regulating public health, public safety, public morals, general welfare * * *, including public convenience or the general prosperity * * *, it is equally true that this power is not without limitations. The means adopted must be reasonably adapted to the accomplishment of that end, and must not be ax-bitrary or oppressive. * * * In other words, the legislation must bear a real and substantial relation to the public health, safety, morals or some other phase of general welfare. * * * Tims a regulation which in effect denies or unreasonably curtails the common right to engage in a lawful business cannot be sustained under the Fourteenth Amendment. For as was said in New State Ice Co. v. Liebmann, 285 U. S. 262, 278, 76 L. ed. 747, 754, ‘ * * * nothing is more clearly settled than that it is beyond the power of a state, ■“under the guise of protecting the public, arbitrarily to interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions upon them.” ’ ” See cases cited.

Tested by the foregoing principles, it seems apparent that the restrictions imposed by the statute are an unreasonable clog upon the conduct of plaintiffs’ business and bear no reasonable relation to the lawful objects of legislation. The statutory requirement for the building has no relation to the public health, morals or general welfare; it imposes an arbitrary restriction upon the use of land and constitutes an unreasonable, and hence unlawful, interference with the ownership of private property and the conduct of business. Moreover, the statute requires that there be installed in the premises equipment “requisite for the servicing of motor vehicles.” The complaint alleges, and from common knowledge we may infer, that this mandate compels a dealer, who in effect is a merchant, to engage in a service occupation, which is not necessarily incidental to the conduct of his business. Certainly t'o- compel him to engage in such servicing as a condition, to the continuance of his license is not within the lawful province of the legislature.

Second: It is entirely at rest in this state “that the statute establish a sufficiently basic standard — a definite and certain policy and rule of action for the guidance of the agency created to administer the law.” State Board of Milk Control v. Newark Milk Co., 118 N. J. Eq. 504 (E. & A. 1935); Hoboken v. Martin, 123 N. J. Law 442 (E. & A. 1939); Finn v. Clifton, 136 N. J. Law 34 (E. & A. 1946); Steiker v. Borough of East Paterson, 61 A.2d 215 (E. & A. 1948). In the statute under consideration no plan or standard is found to guide or control the Commissioner of Motor Vehicles. Indeed the standards for administrative action are indefinite. While R. S. 39:10-2 contains definitions of various phrases and terms used in the statute, there is no definition of, or specification of requirements for, “a permanent building,” nor with respect to the equipment to be installed therein. The word “permanent” has no fixed meaning; it is a relative term. John Kennedy & Co. v. N. Y. World’s Fair, 20 N. Y. Supp. (2d) 934-6, 174 Misc. 729. If it were lawful for the Legislature to compel the establishment and maintenance of a building, it would be reasonable for the Legislature in the public interest to specify, for example, that the building be “fireproof”; but the mere demand that the building be “permanent” without any specification or direction to the administrative officer as 'to what shall, constitute “a permanent building” is vague and invalid. In so far as the plaintiff, Grohman, is concerned, it appears that he conducts his business in a building containing the requisite 1,000 square feet on 'two floors, which the Commissioner deems in violation of the statute for the reason that the area is not on one floor, and Grohman is threatened with revocation of his license. It will be observed that the statute makes no specification such as the defendant asserts.

Therefore, the standards for administrative action are so indefinite as to constitute an unlawful delegation of legislative power.

Defendant argues that plaintiffs have waived the provisions of the act and are now estopped from attacking it, because in the applications filed by the plaintiffs for renewal of their licenses there is contained an agreement to comply with the act. The application' forms are by statute prescribed by the Commissioner. The defendant may compel performance of constitutional statutory mandates, but not of unconstitutional provisions. Indeed, it would be inequitable, if not illegal, for the defendant to revoke a license for failure to perform a.n act, the performance of which the defendant has no lawful authority to demand. To accept the defendant’s contention would be an extension of the doctrine of waiver and estoppel contrary to equity and public policy. Cameron v. International, &c., Union, No. 384, 118 N. J. Eq. 11 (E. & A. 1934).

The provisions of R. S. 39:10-19 and 20 in so far as they require the maintenance and establishment of a permanent building and the installation of servicing equipment and the revocation of licenses for failure to comply, are unconstitutional. For the foregoing reasons, a judgment will be entered restraining the defendant from revoking the plaintiffs’ licenses.


author: Eastwood, J. S. C.

text:
    JOSEPH R. KRYSZTOFEL, PLAINTIFF, v. MARY KATULA KRYSZTOFEL, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided October 15, 1948.

      Mr. Manfield G. Amlicke, for plaintiff.

      Mr. Hubert J. Franklin, for defendant.
   Eastwood, J. S. C.

The parties are husband and wife, having been married on October 29, 1932. The motivating factor giving rise to the present litigation is the existence of long and continued marital difficulties between the parties who have lived separate and apart since 1943. This is the defendant’s second marriage, her previous husband having died in 1930. At the time of her marriage to the plaintiff, defendant was the owner in fee of a dwelling house and lot of land in the Borough of East Rutherford, Bergen County. This property forms the subject matter of the suit. It is claimed by the plaintiff that part of the consideration of the marriage was. an oral agreement between him and his wife that she would place title to the property in both the names of herself and plaintiff, so that a tenancy by the entirety would be thereby created. The alleged agreement is not conceded by the defendant. Both parties concede that the issue is solely a factual one. Plaintiff contends that a decree should be made ordering the defendant to complete the execution of a deed dated March 30, 1933, purporting to carry out the alleged intentions of the parties; or, in the event said original deed has been lost or destroyed, that defendant be ordered to deliver another deed to that effect.

The material facts that may be adduced from the testimony are: Following the marriage defendant consulted her attorney, James Ely, in March, 1933, for the purpose of discussing with him the disposition of the real estate in question. As the result of the discussion, Mr. Ely drafted a deed whereby plaintiff and defendant would own the same as tenants by the entireties. The parties then went to Ely’s office during the same month for the purpose of executing the deed. The deed was then signed by both parties in Ely’s presence. Before taking the acknowledgment Ely explained the effect of the deed to the parties, stating that, if the defendant died first, the property would belong to her husband, and, if he died first, the property would go to the defendant. At this juncture, defendant objected that she did not wish this result, but that on the contrary her desire was that her daughter, Rose (Katula), then a minor, should get one-half thereof after defendant’s death. It was then stated by Ely that the deed, as drawn, would not effect such a purpose. 'He further explained that the desired result could not be effected by a deed, and that he did not advise that it be done by this means since defendant’s daughter was a minor and, having her name on the deed, would tie it up in the event a mortgage might be desired. Defendant then asked how it could be done and Ely replied that it could best be done by the defendant making a will. This course was apparently decided upon and defendant actually did execute a will thereafter on April 5, 1933. Attorney Ely thereupon wrote on the face of the deed words to the following effect, “Not to be used, draw a will leaving one-half to the daughter and one-half to the husband”, and retained the deed in his files. The will is not in evidence and it cannot be ascertained from the proofs whether Ely’s specific suggestions were adopted. The deed in question was never acknowledged and so far as the testimony appears was never physically delivered to plaintiff.

In support of his contentions plaintiff offered proof that he had paid approximately $1,300, for repairs to the property; performed general work in and about the property such as carpentry and painting and further, that after marital difficulties arose he was offered $300. for a release of his interest in the property. The remainder of the testimony is a long and tortuous discourse concerning the marital differences between plaintiff and defendant. For the purpose of deciding the issue here, a discussion of this testimony is not necessary.

If plaintiff is to prevail, it must be shown that it was the intention of the parties to vest ownership of the property in plaintiff and defendant as tenants by the entireties, and the issue, therefore, is whether such intention was legally effected by a valid delivery of the deed in question. “Equity looks to the intent rather than to the form,” or, as sometimes expressed, “equity regards substance rather than form.” Pomeroy’s Equity Jurisprudence, 5th Ed., vol. II, sec. 378. "* * * the principle stated in them is of universal application, that equity always seeks for the real intent under the cover of whatever forms and appearances, and will give effect to such indent unless prevented by some positive and mandatory rule of the law.” Id. See also the opinion of Vice-Chancellor Church, in Montgomery v. Varley, 104 N. J. Eq. 83 (Ch. 1929). The Vice-Chancellor therein said:

“The law in this state as to deeds of this character is clearly laid down by Vice-Chancellor Learning in the case of Rowley v. Bowyer, 75 N. J. Eq. 80. The learned vice chancellor says, beginning at the bottom of page 81:
“ ‘The delivery of a deed of conveyance of real estate is essential to its validity. Its delivery is a matter of intention, and the acts and declarations of the grantor are evidence of his intention. It is not delivered unless or until it is the intention of the grantor to perfect the instrument and make it presently effective as a conveyance.’ ”

Applying the foregoing principles to the case at bar it is found that attorney Ely’s testimony is clearly to the effect that defendant objected to the purport of the deed when its legal effect was explained to her, and that accordingly the acknowledgment was not taken, nor was there a completed delivery. Considering that the parties speak broken English and are difficult t-o understand, it seems that the true situation, as shown by Ely’s testimony, was a desire on the part of defendant to create an ownership in the property whereby she would remain the owner thereof and upon her death the property would go one-half to her husband and one-half to her daughter, Rose Katula. When it was explained that the deed as drawn would not effect such purpose, defendant clearly indicated her dissatisfaction and refused to go through with the transaction. The many cases cited by plaintiff in support of his contentions are all concerned with the question of intention and a reading of them reveals that the question of a valid delivery of a deed is a matter of intention and that the essence of delivery consists in the intent of the grantor to perfect the instrument, and to make it at once the absolute property of the grantee. Montgomery v. Varley, supra. See also Stockton v. Central R. Co., 50 N. J. Eq. 52 (Ch., 1892), wherein Chancellor McGill discussed the question of intention at length.

The facts as presented do not establish a valid delivery of the deed in question in accordance with the intent of the defendant grantor.

The bill of complaint is dismissed, with costs.


text:
    VINCENT HAVRANEK, PLAINTIFF, v. JANE DRAGOUN, ORAZIO CANNIZZO AND CATHERINE CANNIZZO, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    October 16, 1948.

      Mr. Lester H. Fox, for plaintiff.

      Mr. Elmer I. Zabriskie, for defendants.
   Eastwood, J. S. C.

Plaintiff is the surviving husband of Anastasia Havranek, and seeks by this proceeding to have an alleged right of curtesy in certain real estate of his wife assigned to him. The real estate is known as No. 23 Grove Street, Little Ferry, Bergen County, New Jersey, of which said Anastasia Havranek died seized, in fee. Anastasia Havranek died on January 16, 1941. The premises in question were acquired by Anastasia Havranek by deed from the plaintiff on April 11, 1935. The defendant Jane Dragoun is the daughter of Anastasia Havranek and the stepdaughter of plaintiff. She is also the executrix of the last will and testament of Anastasia Havranek, deceased, and is the residuary legatee and devisee thereunder. The defendants Orazio Cannizzo and Catherine Cannizzo, his wife, are the present owners of the premises in question, having acquired same from the defendant, Jane Dragoun, by deed dated August 22, 1946.

The facts have been agreed upon by the parties. They are substantially as follows: Marital differences having arisen between the plaintiff and his wife, Anastasia Havranek, they decided to live separate and apart from each other in the future and to make a disposition of their property, both real and personal, upon terms mutually satisfactory. To this end they repaired to the office of an attorney and executed a separation agreement bearing date April 11, 1935, under the terms of which they agreed to live separate and apart from each other for the future, and to reside from time to time at such place or places as they might think proper, without any interference whatever on the part of each other. The agreement further provided that certain conveyances of real property or transfers of personal property made by the plaintiff to his wife and the relinquishment by the plaintiff of his interest in certain lands and personalty theretofore owned jointly by them should be and remain a sufficient settlement and payment for the support of the wife. It was agreed by the wife, in consideration of said conveyances and transfers and the relinquishment by her husband of his rights therein, that she would thenceforth release and relinquish to her husband, his heirs, executors, administrators and assigns all rights or claims of dower, inheritance, descent, distribution and all other rights or claims growing out of the marriage relation, and further that she would be forever barred from all such rights in the estate of her husband, real, personal or mixed, then owned or thereafter to be acquired by him. The agreement contains the following- provision with reference to the plaintiff’s claim of curtesy:

“8. The said husband, on his part, for the consideration herein named, does hereby release and relinquish to the said wife, her heirs, executors, administrators and assigns .all the rights or claims of curtesy, inheritance, descent, distribution and all other rights or claims growing out of the marriage relation between the said parties; and said husband agrees that he shall be forever barred from .all rights in the estate of his said wife, real, personal or mixed, now owned or hereafter acquired by her; * * * ”

Pursuant to the ’ agreement of April 11, 1935, plaintiff and the decedent, Anastasia Havranek, on the same day conveyed to decedent the property owned by them on Grove Street, Little Ferry, New Jersey. Concurrently therewith plaintiff and the decedent, Anastasia Havranek, conveyed to plaintiff two lots on Kaufman Avenue, Little Ferry and two lots in Bogota, New Jersey. Thereafter on April 29, 1935, plaintiff executed a release of curtesy to the heirs and assigns of said Anastasia Havranek. All of these instruments were acknowledged before the attorney, as a Master in Chancery of New Jersey, and were duly recorded in the Bergen County clerk’s office. Thereafter plaintiff and the decedent, Anastasia Plavranek, lived separate and apart and plaintiff contributed nothing to her support and maintenance nor to the upkeep of her property.

It is the contention of the plaintiff that, notwithstanding the separation agreement, the several deeds and the release of curtesy to his wife’s heirs, he has not been and could not be legally divested of his right of curtesy in the lands in question. It is true that the rights of curtesy and dower are favored in the law. Neither husband nor wife will be excluded from rights in property of the other springing from the marital relation, with one notable exception. The exception to the general rule is that if the words used and acts performed are unambiguous and leave no doubt that there was an intention so to do, the rights of curtesy and dower may be legally extinguished. Justice Depue, speaking for the Court of Errors and Appeals in Cushing v. Blake, 30 N. J. Eq. 689 (E. & A. 1879) said as follows:

“Curtesy is a legal incident of the wife’s estate of inheritance, and is a right favored in the law. A husband will not be excluded from rights in the property of the wife springing from the marital relation, except by words that leave no doubt of the intention to do so.”

Vice-Chancellor Griffin, in the leading case of Shannon v. Watt, 87 N. J. Eq. 142, (Ch., 1916) cited with approval the holding in Cushing v. Blake. Cf. Radley v. Radley, 70 N. J. Eq. 248, (Ch., 1905). Freeland v. Mandeville, 28 N. J. Eq. 559 (Ch., 1877).

In view of the undisputed facts I am- constrained to the view that the instruments in question, executed by plaintiff, .clearly evidenced an intention to divest himself of his right of curtesy. Having benefited from the lands conveyed by his wife to him, her release of dower therein and his . freedom from liability for her support and maintenance provided adequate consideration for the release of curtesy in his wife’s real estate. The intention of the parties was clear and unambiguous. It would be inequitable to permit plaintiff to now enjoy the anomalous position he now claims.

This determination obviates the necessity of considering the defense of laches raised by defendants in their Answer.

The complaint is dismissed, with costs.


author: Stein, J. S. C.

text:
    JOSEPH W. DINGES, PLAINTIFF, v. FREDERICK G. DINGES, ET ALS., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided October 5, 1948.

      Mr. Frank S. Sauer, attorney for plaintiff.

      Mr. David Hilowitz, attorney for defendants.
   Stein, J. S. C.

The issue in this case is whether the plaintiff, having an estate in curtesy in property acquired by his wife in 1925 and in which property he remained in sole occupancy since his wife’s death in 1934, is entitled to_ recover taxes, interest, insurance and repairs from the remaindermen.

Plaintiff married Louise Dinges in 1891. Together they acquired title to a dwelling house in 1912 in Bloomfield las tenants by the entirety. Plaintiff and his wife joined in a deed June 30, 1925 whereby they conveyed the property to their son Frederick, who on the same day reconveyed the property to the wife, Louise Dinges. The wife died on June 24, 1934 intestate, leaving her surviving her husband (the plaintiff) and three children, Frederick Dinges, Louise Collins and Hulda Vardon, who became vested with the fee by descent and still continue to hold the same. None of the remaindermen occupied the dwelling with him. Plaintiff has since remarried and now seeks to recover from the remaindermen the maintenance charges usually incident to and borne by a life tenant. That plaintiff paid taxes, interest, insurance and repairs is not denied by the remaindermen.

The extent of plaintiff’s curtesy in the property of which his wife died seized is governed by the law in effect at the time his wife became seized of the land, namely, June 30, 1925. Statutes subsequently enacted are without effect. Since both the coverture and seizin antedated the enactment of R. S. 3:37-2, N. J. S. A. 3:37-2, the husband’s curtesy right is measured and governed by the law prevailing when coverture and seizin first met. Alt v. Kwiatek, 128 N. J. Eq. 469, 17 A. 2d 161. The surviving husband therefore received and still retains a life estate in the premises. Bucci v. Popovich, 93 N. J. Eq. 121, 115 A. 95; affirmed, 93 N. J. Eq. 511, 116 A. 923; Taylor v. Borgfeld, 139 N. J. Eq. 177, 50 A. 2d 654.

The parties stipulated before me that plaintiff paid the taxes, insurance, interest on mortgage and repairs since June, 1934 to June 1948. There is no evidence before me as to the rental value of the premises. As life tenant it was his duty to pay these items, which over the years total the sum of $5,142.50.

Judgment for the defendants.


author: Jacobs, J. S. C.

text:
    ELMER FERRANTE AND FRANK J. BARTELUCE, PLAINTIFFS, v. MAY PHILPOTT, FORMERLY MAY FERRANTE, AND GEORGE PHILPOTT, HER HUSBAND, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided December 3, 1948.

      Mr. Benjamin J. Spitz, for the plaintiffs.

      Mr. A. Leon Kohlreiter, and Mr. Andrew Mainardi, for the defendants.
   Jacobs, J. S. C.

Plaintiffs, in their complaint, seek reformation of a deed executed by the defendant, May Philpott, then known as May Ferrante, for premises located at 4-36 17th Street, Fair Lawn, New Jersey; defendants, in their answer and counterclaim, seek dismissal of the complaint and a money .judgment in favor of the defendant, May Philpott.

In 1945 and prior thereto, plaintiff, Elmer Ferrante, and defendant, May Philpott, were husband and wife, and the owners of the Fair Lawn premises as tenants, by the entirety. They separated because of marital difficulties and despite his testimony that his wife had no grounds for divorce, he agreed with her that she should obtain a divorce in the State of Florida. She had no attorney and all of the arrangements were made through his attorney who engaged Florida counsel to act on her behalf. Under date of. April 3, 1945, his attorney prepared and obtained the execution of an agreement between them which provided that she would sell her interest in the Fair Lawn premises for the sum of $1500.00 plus $75.00 per week payable from the date of the agreement until the entry of the decree of divorce. At the same time she executed a bargain and sale deed to plaintiff, Frank J. Barteluce, who was acting as nominee for her husband, conveying her interest in the Fair Lawn premises which she described as “a one-half undivided interest”. She received the sum of $1500.00 and the weekly payments of $75.00, obtained a divorce in the State of Florida and has since remarried. The plaintiff, Elmer Ferrante, has likewise remarried. Title to the Fair Lawn premises is now in Elmer Ferrante and his present wife Helen Ferrante, who are about to effect a sale thereof. In connection with the sale they requested May Philpott and her present husband the defendant, George Philpott, to execute a quitclaim deed and upon their refusal the plaintiffs instituted the present proceeding to obtain reformation of the bargain and sale deed so as to eliminate the reference to “a one-half undivided interest” and to convey May Philpott’s entire interest therein.

The defendant, May Philpott, asserts that when she executed the agreement and deed dated April 3, 1945, the plaintiff, Elmer Ferrante, promised that she would receive $1500.00 in addition to the $1500.00 paid to her and that ultimately the Fair Lawn premises would be conveyed to their daughter, Dorothy. She further testified that at that time she gave him certain savings bonds owned by her. He testified that the bonds were divided between them, he taking those in his name and she receiving those in her name, and that he “got the test of the deal by a couple of hundred dollars”. He denied that he had promised the additional payment of $1500.00 but acknowledged that he had at one time intended to convey the Fair Lawn premises to his daughter but had changed his. mind. He does not dispute that'at the time of their separation and divorce his wife received nothing whatever apart from weekly maintenance of $75.00 until the divorce, her own bonds, and $1500.00 for her interest as a tenant by the entirety in the Fair Lawn premises which are subject to a mortgage of $4900.00 and are being sold for $12,000.00

The parties in this proceeding do not seek to upset the Florida divorce or the financial transactions incident thereto and the defendants have expressly withdrawn their counterclaim seeking a money judgment. The defendants contend, however, that under established equitable doctrines the plaintiffs are precluded from obtaining any relief in this court.

The defendants’ contention must be sustained. See Hemingway v. Ball, 118 N. J. Eq. 378 (Ch. 1935) aff’d 119 N. J. Eq. 471 (E. & A. 1936); Wolff v. Wolff, 134 N. J. Eq. 8, 15 (Ch. 1943); Blaine v. Krysowaty, 135 N. J. Eq. 355 (Ch. 1944). In the first place, the evidence establishes that the plaintiff, Elmer Ferrante, dealt unconscionably with his wife in the financial arrangements between them. Our courts have held that "where such financial agreements are made by husband and wife, the husband is under an affirmative obligation to deal fairly and justly with his wife. This obligation was in nowise properly discharged. Cf. Wolff v. Wolff, supra at p. 15. The facts render pertinent the doctrine that, “he who comes into a court of equity must enter with clean hands”, and the court will deny “its remedies to a complainant who has been guilty of bad faith, fraud or unconscionable acts in the transaction which constitutes the basis of his suit.” See Blaine v. Krysowaty, supra at p. 355. In the second place, our courts have held that arrangements such as those described herein for the facilitation of divorce are contrary to the public policy of our State and where, as here, they have been executed, this court will not extend its aid but will leave the parties “in the position in which they have placed themselves.” See Hemingway v. Ball, supra at p. 381.

The complaint and counterclaim are dismissed.


text:
    STATE OF NEW JERSEY ON RELATION OF THE BOARD OF HEALTH OF THE TOWNSHIP OF WAYNE, PLAINTIFF, v. PATERSON TALLOW COMPANY AND INDEPENDENT RENDERING COMPANY, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided October 25, 1948.

      Messrs. Evans, Hand & Evans, (Mr. John W. Hand, of counsel), for the plaintiff.

      Mr. Saul M. Mann, and James J. Murner, for the defendant, Paterson Tallow Company.

      Mr. I. Victor Klenert, for the defendant, Independent Rendering Company.
   Jacobs, J. S. C.

The Board of Health of the Township of Wayne seeks an injunction to restrain the operation of the fat rendering plants of Paterson Tallow Company and Independent Rendering Company, on the ground that the odors emanating therefrom constitute a nuisance hazardous to the public health.

The plant of the defendant Paterson Tallow Company was constructed in 1918 or 1919 and has been in operation since that time. It was erected within the completely rural community of Wayne Township and was relatively distant from the few houses in its general vicinity. In later years, additional houses were built but the' area is still rural and sparsely settled. The company purchases inedible fats, oils, and bones, which are delivered to it in large drums, the bones are crushed, all of the materials are placed in cookers, and the resulting product is a tallow which is used in the manufacture of soap and other products. The materials being received by the company were described by its president as being of good quality and coming in refrigerated condition from packing houses and butcher shops. During the war the company purchased bad materials out of the State to meet requirements by the War Production Board for the increased production of tallow for use in the manufacture of glycerin and other high explosives, but this practice was discontinued at the close of the war. The plant of the Independent Rendering Company is located near that of the defendant Paterson Tallow Company but its operations are on a smaller scale.

During the hearings held in 1946 before Vice Chancellor Lewis, the plaintiff produced testimony by approximately twenty witnesses to establish that there were odors emanating from defendants’ plants which constituted a nuisance hazardous to public health. Their testimony indicated that from time to time they were subjected to objectionable rendering odors attributable mainly to the operations of the defendant Paterson Tallow Company. Most of the witnesses stated that the odors had no effect on their health although a few asserted that they nauseated them, affected their appetites, and caused their loss of sleep. Witnesses on behalf of the defendant Paterson Tallow Company described the odors as “cooking odors” and stated that they did not disturb or have any effect whatever on them. Towards the close of the hearing before Vice Chancellor Lewis, the president of the defendant Paterson Tallow Company, although denying that any occasional odors emanating from its plant were offensive, stated that new equipment, particularly an ozone apparatus, designed to increase the plant’s odor control, had been purchased but had not yet been installed.

On October 14, 1948, a supplemental hearing was held to enable the parties to introduce evidence of occurrences since 1946. At this hearing evidence was introduced establishing that the ozone apparatus had been installed but was not entirely satisfactory, and that thereafter the company investigated systems in rendering plants in other cities and retained Mr. Melville, a licensed engineer who has been engaged in constructing and assembling rendering plants since 1920, to install a new odor control system in its plant. The installation was begun by Mr. Melville and his staff in the spring of this year and was substantially completed by the middle of August. Mr. Melville described his system as one which confines the steam containing the odor and grease content, carries it to large condensing units where it is condensed into water, and transmits the residue, which is not condensed, to a chimney stack where it is burned. He stated that although there are various odor control systems, he considers his to be the most modern and the best in the field. He further stated that the cost to the company of installing his system was $34,000.00 and that he is still engaged at its plant in making improvements. Several witnesses, including witnesses who had earlier testified on the plaintiff’s behalf, stated that the situation had improved since the first hearing. On the other hand, several witnesses called by the plaintiff, including one who stated that he had noticed the odors “for 28 years”, testified that the only improvement was that the odors now continue for lesser periods than heretofore.

Immediately following the close of the supplemental hearing, and with the consent of counsel and in their presence, an inspection of the Paterson Tallow Company’s plant and its new equipment was made. There was no odor away from the plant but there was what was referred to during the hearing as a “trade odor” of a cooking type within the plant and immediately about it. The plant was then in full operation and materials were being received while the inspection was being made. Although neither the plant’s structure nor the nature of its business was at all pleasing to the eye, nothing was observed or ascertained which would support the charge that a nuisance hazardous to the public health existed.

In its memorandum plaintiff asserts that its action was brought under R. S. 26:3-56, concedes that it has not established its case against the Independent Rendering Company; but contends that the evidence presented was sufficient to warrant the issuance of a restraint against the operation of the Paterson Tallow Company’s plant as constituting a “nuisance hazardous to the public health” within the meaning of R. S. 26 :3 — 56. In The State of New Jersey, Ex rel., Board of Health of the Township of Medford v. Jennings, 131 N. J. Eq. 511 (E. & A. 1942) the Court of Errors and Appeals, in dealing with a proceeding under R. S. 26 :3-56, said:

“Tho Vice-Chancellor decided that for Chancery to grant an injunction the facts must show a nuisance hazardous to the public health and a nuisance such as would subject the defendant to an indictment. State, ex rel. Board of Health of Hackensack v. Board of Chosen Freeholders of Bergen County, 46 N. J. Eq. 173; affirmed, 48 N. J. Eq. 294. He also decided that the extraordinary remedy of injunction cannot be awarded unless the right to it is established by clear and convincing testimony and that the proofs in the instant case did not so establish the right. We are in accord with those views.”

Applying the above principles, the conclusion must be reached that the proofs do not clearly and convincingly establish that the defendant Paterson Tallow Company’s plant is now being operated as a nuisance hazardous to the public health. The weight of the testimony indicates that although the plant is, with wholly apparent cause, undesirable from the neighbors’ viewpoint, its present operation is not, in any real sense, a public health hazard. The installation of the plant’s new equipment represents a bona fide attempt'to increase the plant’s odor control and undoubtedly beneficial results have resulted. Further plant improvements are being made and the company would be well advised not only to continue them, 'but also to increase their scope to the end that all basis for any 'complaints whatever by neighbors is effectively removed. Otherwise it may be faced with a subsequent proceeding of more comprehensive scope resting on additional evidence which might justify the relief there sought. Cf. Kosich v. Poultrymen’s Service Corporation, 136 N. J. Eq. 571 (Ch. 1945).

Judgment of dismissal in favor of the defendant's will be entered.


text:
    JENNIE D. KUIKEN, PLAINTIFF, v. A. GROVER SIMONDS AND MARY M. SIMONDS, INDIVIDUALLY AND AS EXECUTORS UNDER THE LAST WILL AND TESTAMENT OF CHARLES SIMONDS, DECEASED, ET ALS., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided October 4, 1948.

      Mr. Joseph J. De Luccia, attorney for plaintiff.

      Mr. William Evans, for the firm of Evans, Hand & Evans, attorneys for certain named defendants.

      Mr. Milton Schamach, for defendant-counterclaimant, Helen Cole Simonds.
   Grimshaw, J. S. C.

This is a bill for the partition of real estate of which -Charles W. Simonds died seized. The testator who died August 28, 1920, in his will provided among other things as follows:

“THIRD: I give, devise and bequeath -the use and income of all the rest residue and remainder of my estate both real and personal unto my beloved wife Margaret Simonds, together with so much of the principal as may -be necessary for her support and maintenance, for and during the term of her natural life.
“FOURTH: Upon the death of my said wife Margaret Simonds, I order and direct my executors hereinafter named or the survivors of them, to sell and dispose of all my real estate then remaining and to divide all my then remaining estate real and personal as follows:
“To my son Grover Simonds, a one sixth part thereof, to my daughter Ellie Forshay, a one sixth part thereof, to my son Joseph Simonds a one sixth part thereof, to my daughter Louise Simonds, a one sixth part thereof, to my daughter Alice Anderson a one sixth part thereof and to Mary M. Simonds, widow of my son Edgar Simonds, the remaining one sixth part thereof for the support, education and maintenance of her son Charles Edgar Simonds
“LASTLY: I nominate and appoint my son Grover Simonds, my daughter Ellie Forshay, and my daughter-in-law Mary M. Simonds, executors of this my last will and testament with full power and authority to sell and dispose of any or all of my real estate, excepting however the property above specifically devised to the children of my deceased brother, John Simonds, together with the power to mortgage the same or any part thereof, should the same be necessary for the proper support and maintenance of my said wife.”

By a codicil to the will, the testator modified the provision for his grandson, Charles E. Simonds, contained in the fourth paragraph of the will.

On August 20, 1928, a judgment was obtained against Joseph Simonds, one of the residuary beneficiaries. By virtue of a writ of execution and levy made under the judgment, the Sheriff of Passaic County sold all of the right, title and interest of the said Joseph Simonds in the lands sought to be partitioned to the complainant Jennie D. Kuiken.

Margaret Simonds, widow of the testator, died November 24, 1939. The said Joseph Simonds died May 16, 1943 intestate, leaving as his only next of kin and heirs at law his widow, Helen Cole Simonds, and his daughter, Lucille Simonds.

The facts are not in dispute. They were made the subject of a stipulation executed by all of the parties.

Under the terms of the testator’s will the executors were directed to sell the real estate at the expiration of the life estate and distribute the proceeds among the named beneficiaries. In view of this provision of the will, there can be no partition. Where, as here, the executors are directed to sell the real estate and distribute the proceeds, such proceeds are to be regarded as gifts of money and not as devises of real estate. Weber v. Beales, 140 N. J. Eq. 423; Braun v. Muller, 132 N. J. Eq. 56.

It is argued that the failure of the executors to exercise the power of sale for nine years after the death of the life tenant resulted in the extinguishment of the power. Such is not the law. Morse v. Hackensack Savings Bank, 47 N. J. Eq. 279.

It is further argued that the beneficiaries elected to take the land rather than have the executors sell it and distribute the proceeds. This argument is also without merit. The burden of establishing the fact of an election was upon the complainant and she failed to sustain that burden. So far as the record shows there was a complete absence of that unanimous action of the parties in interest necessary to avoid compliance with the testator’s direction to sell. And as three of the beneficiaries were executors, they had not the capacity to do any act in relation to the trust property which would inure to their own benefit and operate to impair or defeat the trusts they undertook to perform. Morse v. Hackensack Savings Bank, supra.

Partition will be denied. Upon a sale by the executors the deed from the sheriff to the complainant will become ineffective. The gift to Joseph Simonds is to be regarded as a gift of money, not real estate. Upon his death his share descended to his next of kin, not his heirs at law. The complainant must enforce her claim against that share as personalty. Triplett v. Ivins, 93 N. J. Eq. 202.

Judgment in accordance herewith.


text:
    VELLA WOOTEN, FELIX WOOTEN, HER HUSBAND, AND RUTH MIZELL, JOINTLY AND INDIVIDUALLY, AND VELLA WOOTEN AS EXECUTRIX OF THE LAST WILL AND TESTAMENT OF FANNIE C. TURNER, DECEASED, PLAINTIFFS, v. VIOLA HARVEY AND ARTHUR HARVEY, HER HUSBAND, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided November 1, 1948.

      Mr. Robert S. Hartgrove, attorney for plaintiffs.

      Mr. Henry W. Clement, attorney for defendants.
   Stein, J. S. C.

This suit was commenced by a petition to the Union County Circuit Court for a declaratory judgment. By order of that Court dated May 3, 1948 it was transferred to the Court of Chancery.

Fannie C. Turner died on February 11, 1947, leaving a last will and testament dated September 16, 1943, which was duly probated by the Surrogate of the County of Union, which inter alia provided as follows:

“Third. I give, bequeath and devise absolutely and in fee simple to my said beloved daughter, Vella Wooten, all my land and premises known and described as street number 212 Spooner Avenue, Plain-field, New Jersey, subject, however, to the provisions hereinafter mentioned.
“Fourth. I direct that my said daughters, Viola Harvey and Ruth Mizell, shall have the right to reside in my said home devised and bequeathed as set forth in the third paragraph of this my last Will and Testament, and as long as they might desire so to do, provided, however, that they share equally in respect to the upkeep of the said lands and premises and the payment of taxes, water rents and other assessments against the same.
“Fifth. I further direct that if the said Vella Wooten should at any time during her life sell or dispose of the said lands and premises herein devised by me and as set forth in the third paragraph of this Will, then and in that case the proceeds of the sale shall be divided equally between herself, the said Viola Harvey and the said Ruth Mizell.”

Testatrix at the time of her death was seized of premises known as 212 Spooner Avenue, Plainfield, New Jersey. Since the death of testatrix, the defendants, Viola Harvey and Arthur Harvey her husband, and their children have been in possession of these lands and premises and have collected the rents therefrom. During this time they have denied the plaintiff Vella Wooten the right to occupy any part of the premises.

The complaint seeks a construction of the will. The pretrial order gives the plaintiffs leave to amend their complaint to include a cause of action against the defendants for an accounting of the rents, issues and profits of the mentioned premises.

There can be no doubt that under the third paragraph of testatrix’ will, Vella Wooten took an estate in fee simple in the premises 212 Spooner Avenue. The language is clear and unambiguous. By the fourth and fifth paragraphs of the will the testatrix places a limitation upon the fee. In the fourth paragraph she directs that her daughters, Viola Harvey and. Ruth Mizell, shall have the right to reside in said premises as long as they desire so to do. By the fifth paragraph she directs that if the premises are sold by Vella Wooten that the proceeds thereof are to be equally divided among the said Vella Wooten, Viola Harvey.and Ruth Mizell.

The provisions of the fourth and fifth paragraphs of the will are plainly inconsistent with the provisions of the third paragraph. They demonstrate that testatrix had two intentions with respect to this property — the first to give it outright to her daughter, Vella Wooten, and the second to place a limitation upon the fee by directing that her other two daughters may occupy the premises, and that if the premises are sold the proceeds are to be divided among her three daughters.

In construing wills the court is guided by certain fixed rules of construction, one of which is that where a testator has manifested an intent to vest an absolute fee simple in the first taker a subsequent limitation thereof is void as inconsistent with the rights of the first taker. Kutschinski v. Sheffer, 109 N. J. Eq. 659, 158 Atl. 499; Parmentier v. Pennsylvania Co. for Ins., &c., 122 N. J. Eq. 25, 192 Atl. 62, affirmed 124 N. J. Eq. 272, 1 Atl. (2d) 332. In the latter case, at page 30, the court quoted from Mullany v. Mullany, 4 N. J. Eq. 16 (at p. 22) an excerpt which is singularly applicable to the will here under consideration as follows:

“And in this case I refer to the views of Mr. Justice Buller * * *. He says', ‘the devisor seems to have had two intentions, which are inconsistent; one was to give an estate in fee to the feme covert, the other to qualify it in such manner as that her husband should have no power over it. The last is contrary to the rules of law: the court will, therefore, carry into effect the first intention, and reject the other.’ ”
“He further said that from the cases examined and cited by him ho came to the conclusion: ‘that those incidents which by law are inseparably annexed to an estate, cannot be prohibited by any condition or limitation expressed in the deed or will; and that when a man gives a fee-simple, he has parted with all the interest which he had, and cannot be permitted to say, that such estate shall not be subject to all the restraints imposed upon it by law.’ ”

Under the third paragraph of the will Vella Wooten took an estate in fee simple and the limitations contained in the fourth and fifth paragraphs of the will are void. Vella Wooten is entitled to an accounting of the rents, issues and profits of the premises by the defendants, Viola Harvey and Arthur Harvey.

Plaintiffs also seek construction as to the right of Vella Wooten as executrix to take possession of and hold for distribution the personal property of decedent.

Under the second paragraph of the will, testatrix bequeathed to Vella Wooten all household goods of which she died possessed located in the home 212 Spooner Avenue, Plainfield, and directed that her daughter, Vella Wooten, shall divide the same equally between herself and her sisters, Viola Harvey and Ruth Mizell, “in the manner that she shall think just and proper.” The mere recitation of this paragraph speaks for itself. Vella Wooten' as executrix 'is .entitled to possession of this personalty for the purpose of distribution as in the will directed.

Judgment in favor of the plaintiff Vella Wooten individually and as executrix of the estate of Fannie C. Turner, deceased.