text:
    In the matter of the estate of Cornelius Phelan, deceased.
    [Decided July 9th, 1913.]
    1. Under the statute requiring that all testaments shall be signed by the testator, which signature shall be made or the making thereof acknowledged by him, and the writing declared to be his last will, in the presence of two witnesses, the name in the caption of a holographic will, commencing, "I, Cornelius or Corniel F. Phelan * * * do make, publish and declare this my last will and testament,” not written in the presence of witnesses, nor acknowledged before them to be his signature, was merely designatio personal, not amounting to a signature, and the name in an attestation clause reading, “Signed * * * and declared by the said Cornelius or Corniel F. Phelan to be his last will and testament in the presence of as witnesses,” would not be sufficient as a signature to the will, in the absence of an intention that it should be so; the word “said” merelj' identifying the person named as the one above mentioned.
    2. Evidence on appeal from a decree refusing probate of a holographic will, held insufficient to show that either one of the written names in or under the instrument was acknowledged by the testator as his signature.
    3. Under the statute declaring that the testament must be signed, but not expressly requiring it to be subscribed, the name of the testator by himself written in or on any part of the testament, in the presence of witnesses, even if expressed in the third person, with intent thereby to make that name his signature, satisfies the statute.

      4. The name of'the testator, written in the attestation clause, reading as follows: “Signed * * * by the said Cornelius or Corniel P. Phelan to be his last will and testament in the presence of as witnesses,” and intended by testator to constitute the signature to his last will, as required by law, was a signature which made the will effective.
    On appeal from a decree of the Cape May county orphans court refusing probate of a will.

      Mr. Peter Baches, for the appellant.

      Mr. 'William B. Gourley, for the respondents.
   Walker, Ordinary.

The document in question in this cause is a holographic will of the late Eev. Cornelius E. Phelan. It commences as follows:

“I, Cornelius or Corniel P. Phelan, at present Rector of St. Joseph’s Church, Sea Isle City, N. J., being of sound mind, memory and understanding, do make, publish and declare this my last will and testament.”

The paper was not signed by the testator, that is, it was not-signed in the way wills are usually signed. The proponent urges that the name of the deceased written in the caption or attestation clause of the will is to be taken as his signature.

‘When the will was presented to the surrogate of Cape May ■he, conceiving there was, on its face, doubt as to its validity, issued citations to all persons concerned to appear in the orphans court according to the statute. The judge of that court, after hearing the witnesses sworn in the proceedings for probate, declared the testament to have lacked due execution and refused to admit it.

The facts, succinctly, were these: On the day the will bears date, November 1st, 1909, Father Phelan went to the house of Mrs. Maiswinkle at Sea Isle City. With her lived her niece, Elizabeth Hartmann. The parties were all well acquainted. The priest told the women that the paper was his last will, and requested them to sign it as witnesses. He read it over to them. It then lacked the attestation clause, and had no signature. At the same time he said he had something to add to the paper and sat down and wrote the attestation clause in the juesence of the witnesses. It reads as follows:

“Signed, sealed, published and declared by the said Cornelius or Gorrieil F. Phelan to be his last will and testament in the presence of as witnesses.”

There is no space between the body of the will, or rather the testimonium clause and this clause, and the signature usually written in the space between them is absent. lie then read the whole will over again to the witnesses including the attestation clause and asked them to witness it. This they did by signing their names at the foot of that clause, all three being present at the same time.

In giving their testimony before the orphans court neither Mrs. Maiswinlde nor Miss .Hartmann said that the testator acknowledged his written name at either end of the paper to be his signature.' The one in the caption could only be made his signature to a will by acknowledging it as such, for he did not write it in the presence of the witnesses. The one in the attestation clause could be his signature to a will (because he wrote it in the presence of these witnesses) if, and only if, it were his intention to make it his signature for the purpose of the execution of the will instead of writing a more formal and disconnected signature. In other words, instead of the usual and familiar “signing.”

Our present statute of wills requires that all testaments shall be signed by the testator, which signature shall be made, or the making thereof acknowledged, by him, and the writing declared to be his last will in the presence of two witnesses, &e.

As already remarked, the name “Cornelius or Corniel F. Phelan” in the caption of his will was not written in the presence of the witnesses, nor was it acknowledged to be his signature before them, as I understand it. The words composing his name were merely designatio persones, and so too are the same words in the attestation clause, which reads in part: “Signed, sealed, published and declared b3p the said Cornelius or Corniel F. Phelan.” The name is here expressed in the third person, and is prefixed with the word “said,” a word used to identify the person named as one above mentioned unless, as already remarked, the testator intended his written name in the attestation clause to be a signing or execution of the will by him. On its face it does not purport to be a signature or. sign manual for the purpose of vitalizing the instrument.. The surrogate was therefore clearly right in his view of the doubtful character of the instrument on its face, but the orphans court does not appear to have been correct in refusing to probate it after the evidence was in.

After appeal to this court leave was obtained to take further testimony and to further examine the witnesses to the will, Mrs. Maiswinkle and Miss Iiartman. In the subsequent testimony Mrs. Maiswinkle declared Father Phelan said: “I want you two to be witnesses to this my last will and testament, and this is nxy signature,” the paper being open before them at the time. On this examination Miss Hartman said Father Phelan declared: “This is my will and testament, and this is my signature, and I want you tw’o to be witnesses to my last will.”

Former Judge Hildreth of Cape May was counsel for the proponent of the will before the orphans court. He was called in the prerogative court and testified that he had an interview with these two women prior to the time the matter came up in the orphans court. He called upon them for the express purpose of ascertaining if the deceased had declared his name to the paper purporting to be his will to be his signature—whether he had declared either of his names, the one in the caption or the other in the attestation clause, to be his signature—or whether he had declared that he had signed the will, and they both replied that he had not.

In their examination in this court they denied having had such an interview with Judge Hildreth. The judge’s character and ability impels the court to believe that he well remembers the interview and what was said; in fact that he speaks the truth. This puts the women in the attitude of being mistaken or prevaricating. In my judgment they were at least mistaken. If they expect me to accept the testimony they gave on the hearing in the prerogative court they are bound to acknowledge that they mistakenly testified on oath at the hearing in the court below. They themselves furnish indubitable evidence that they were mistaken on one hearing or the other, to say the least. Rejecting their testimony, as I do, with reference to the adoption by Father Phelan of either one of his written names in or under the instrument, as a signature, by way of making the acknowledgment permitted by the statute, it becomes my duty to inquire whether he intended his written name in the attestation clause to be the signing required by the statute.

That Father Phelan intended the paper writing offered for probate to be his last will and testament is apparent.

It should be stated in passing that the witnesses asked why he wrote his name “Corniel,” and he answered that it was because some people called him “Cornelius” and others “Corniel,” and that he did not want to have any mistake.

As already seen the statute of wills provides that the testament must be signed. It does not say it must be subscribed, and therefore the name of the testator by himself written in or on any part of the testament, he intending thereby that his name so written should be a signing of the will, satisfies the statute. The following quotation by Chancellor Williamson from English cases found in Smith v. Howell, 11 N. J. Eq. (3 Stock.) 349 (at p. 357), are pertinent:

“If the defendant himself writes the agreement for the purchase of a leasehold house, and states his own name in the third person, as ‘Mr. A. B. has agreed/ this is a good contract within the statute of frauds, though he does not otherwise sign the agreement. Propert v. Parker, 1 Russ. & M. 625. J. B. Bridges, being seized in fee of an undivided moiety of five hundred houses in Cable street, Liverpool, agreed to sell it to the plaintiff, and thereupon Bridges drew up the following memorandum in his own handwriting: ‘July 26th, 1839. John Blakely agrees with J. B. Bridges to take the property in Cable street for the net sum of £248 10s.’ The vice-chancellor was of opinion that the agreement was sufficiently signed to take it out of the statute of frauds, and decreed accordingly.”

Our own cases of Smith v. Howell, ubi supra; McVay v. McVay, 43 N. J. Eq. (16 Stew.) 47, and Aller v. Crouter, 64 N. J. Eq. (19 Dick.) 381, support the views in the English eases mentioned above.

A last will need not be expressed in any particular formula. It must be signed, but the signature may be at the beginning, middle ox end or on the side. If the testator writes his name in, on or under the testament, with the intention thereby to make that name his signature, even if expressed in the third person, and the witnesses see him write it, and it is duly executed in other respects, the testament is valid.

Eejecting, as 1 do, the assertions that either name in the instrument in question was acknowledged by the testator to be his signature, I nevertheless find, as the facts show that the name of the testator in the attestation clause was written by him in the presence of the witnesses. As already remarked, the deceased was an intelligent man, and intended the paper writing which was offered for probate to be his last will and testament. He commenced the writing of the attestation clause immediately under the testimonium clause without leaving the usual space for signing, thereby to my mind, believing that the writing of his name in the presence of the witnesses in the clause mentioned would constitute the signing required by law. I ought to say that only two words of the testimonium clause appear on the last line of that clause, and that the attestation clause was commenced immediately below them, and while there was sufficient room for the testator to have written his name after the last word of the date in the testimonium clause, had he done so, it would have filled the line up solid, making a very awkward appearing execution of the paper. He must have intended his name as written in the attestation clause, to be Ms signature for the purpose of giving efficacy to his will.

These views lead to a reversal of ihe court below, and to the admission of the will to probate.


source: Caselaw Access Project

author: Backus, Vice-Ordinary.

license: Public Domain

text:
    In the matter of the probate of the last will and testament of Ellen Dillon, deceased.
    [Decided May 24th, 1913.]
    1. In a will contest, evidence held insufficient to show that testatrix was, by reason of the near approach of death, unable to make a will.
    2. In a will contest in which it was shown that testatrix followed the wishes of her deceased husband, evidence held, insufficient to show that her attorney unduly influenced her in so carrying out the husband’s wishes.
    3. If a testator is capable of recollecting of what his property consists and those who either in consequence of ties of blood or friendship should be the objects of his bounty, and has a mind sufficiently sound to enable him to know and to understand what disposition he wants made of his property after his death, he is competent to make a will.

      Mr. IF. J-Ioll Apgar and Mr. William M. Jamieson, for the appellants.

      Mr. Bayard Slociclon, for the appellee.
   Backus, Vice-Ordinary.

This is an appeal from the order of the orphans court of Mercer county, affirming the probate, by the surrogate, of the last trill and testament of Ellen Dillon, deceased. The reasons for the affirmance, as set forth in the opinion of Judge Gnichtel, judge oil the orphans court, are amply sustained by the record and which, after a careful examination of the cause, I approve.

In my judgment, the testatrix was possessed of testamentary capacity at the time she executed the document. The claim that she was unlawfully' influenced, and the charge that she was imposed upon by the scrivener, are not borne out by the evidence. The case is barren of proof of intrusion by the beneficiaries. The scrivener yvas actuated solely by a desire to assist the testatrix. The disposition of the estate is quite natural, and is. iri accord with her oft-expressed determination to dispose of it in compliance with the yvish of her late husband.

By leave of this court, further testimony was taken, attacking the credibility of the subscribing witness Mitchell. Nothing was shown other than that during a period of hysteria, or aberration, due to assaults upon her veracity, she made declarations from which, it is claimed, may be inferred that she was not truthful in the cause, but which, in my judgment, are equally susceptible of deductions entirely consistent with her rectitude as a witness, and a ^purpose on her part to defend herself against scandal. The expressions accredited to this witness do not militate against the propriety of the order of the orphans court affirming the probate of the will.

The order will be affirmed.

The able manner in which counsel presented the cause, after thorough preparation, entitles them to a further allowance. ' I will hear them on the next motion day.


author: Backes, Vice-Ordinary.

text:
    Boardman S. Brown et al. v. The Fidelity Trust Company, administrator, &c., et al.
    [Submitted May 20th, 1913.
    Decided June 10th, 1913.]
    1. If a direction in the will as to the disposition of the proceeds of land requires its sale, it is equivalent to a positive direction to sell, so that the land is ejeemed personalty from testator’s death except as to life tenants.
    2. Whether a direction in a will to sell land amounts to a conversion of the land into personalty is a question of intention, the question being whether testator intended absolutely that the land be converted into money before distribution.
    3. A will gave testator’s estate to his widow for life, with remainder in equal shares to. his children, living at his death, and provided that the share of one daughter should be at least $2,000, and that another daughter’s share should be invested and the interest paid her for life. the principal to go to her lawful issue, and that the share of other daughters should be held for life, and upon their death without issue divided equally between the brothers and sisters, and that the share of a son should be invested by. the executor and the interest paid to him semi-annually with remainder over to his children. It empowered the executor to sell the realty during- the widow’s lifetime, with her consent, and to pay the interest of the proceeds to her for life and after her death to sell all of the realty then unsold. A codicil gave the estate after the widow’s death to his three children named for their lives and the life of the survivor, and after the death of the survivor to testator’s heirs-at-law.—Held, that testator intended his land to be turned into money before it was finally distributed to the remaindermen, so that it should be considered as personalty with reference to them.
    4. A provision of a will directing the remainder of the shares given to testator’s children for life, to be divided among their brothers and sisters “or the lawful issue of any such brother or sister who may have died since” the decease of testator, gave the remainder to the children of brothers and sisters deceased at the time of distribution in place of their parents.
    On appeal fr.om the Somerset county orphans court.
    Benjamin Brown died leaving a widow and nine children. By his will he gave his estate to his widow for life, remainder in equal shares to his children living at the time of his death, subject to advances made to seven of them. The share of one daughter, Susannah, was to be at least $2,000. Sarah’s share was ordered to be invested and the interest paid to her for life by the executor; upon her death the principal to go to her lawful issue. The shares of two daughters, Mary and Susannah, were for life, and dying without issue they were to
    “be divided equally between the brothers and sisters of said Mary and Susannah Brown or the lawful issue of any brother or sister who may have died since the decease of this testator', with the exception of Sarah P. * * * whose share to such respective shares, or either of them, shall go to her lawful issue.”
    The share of Benjamin was ordered to he invested by the executor, and the interest paid to him semi-annually, with remainder over to his children. The executor was given discretion to pay some or all of the principal to •Benjamin. The executor was given power to sell the real estate during the widow’s lifetime, she consenting thereto. The interest on the proceeds was to be paid to her for life. After the widow’s death the executor was empowered to sell all the realty then unsold. By a codicil the testator gave his estate, after the death of his widow, to his children, Mary, Susannah and Benjamin,
    “for and during their natural lives and the life of the survivor of them, and after their death and the death of the survivor of them, I give and bequeath the same to my heirs-at-law as set forth in my last will and testament above.”
    All the life tenants are dead. Benjamin left two children, Mary and Susannah died childless. Almira, with whose shares we are principally concerned, died before Mary and Susannah, leaving a husband and three children. The testator’s estate consisted of a farm and trifling personalty. The farm was recently sold by the substituted administrator. The net proceeds of sale for distribution amount to $10,413.54. Almira’s distributive share given directly to her by the will (after deducting an advancement of $575) of $802.94 plus one-seventh of the shares of Mary and Susannah of $482.56, is by the decree of distribution made by the orphans court, awarded to her personal representative, formerly her husband, now deceased, which enures to his estate, of which the Fidelity Trust Company is executor. Almira’s children appeal, claiming that the share of their mother vested in her as real property, which descended to them as her heirs-at-law, and as to the one-seventh of the shares of their aunts, Mary and Susannah, they are legatees under the will of their grandfather. Against the first proposition the contention is that there was a testamentary conversion of the land into personal property. As to the second, no answer is made.

      Messrs. Pilch .& Pilch, for the appellants.

      Mr. Francis LajfeHy, for the Fidelity Trust Company, respondent.

      Mr. Hugh K. Gaston, substituted administrator of Benjamin Brown, deceased, pro se respondent.
   Backes, Vice-Ordinary.

If the direction of the will as to the proceeds requires a sale it is equivalent to a positive direction to sell, and the land is deemed personal property from the death of the testator. Cook, Executor, v. Cook, Administrator, 20 N. J. Eq. (5 C. E. Gr.) 375.

A conversion is a question of intention, and the real question is, Did the testator intend his lands should be converted into mone)' at all events before distribution? Wurls’ Executors v. Page, 19 N. J. Eq. (4 C. E. Gr.) 365.

No suggestion has been offered, nor can one be made, how other than by a. sale and conversion Susannah’s $2,000 and Mary’s share for life could be got, or in what manner Sarah’s and Benjamin’s portions could be had for the purpose of investment, or whence the executor wars to put himself in funds to advance to Benjamin some or all of the principal of his share during his lifetime. It is patent that the testator intended his land should be turned into money before it was distributed. The share of Almira was to be paid to her in'money. It was a vested legacy. Security Trust Co. v. Lovell, 78 N. J. Eq. (8 Buch.) 445. Upon her death it passed to her personal representative.

The codicil does not disturb this bequest except that it further postpones the payment until the death of the life tenants added by the codicil. Its plain meaning is that upon this happening the estate was to go to the testator’s heirs-at-law (next of kin) in the manner and proportions provided for by the will.

It is urged that the will evinces an intention on the part of the testator that his estate should be enjoyed by his descendants exclusively, and hence it would be doing violence to his wishes and desires to dispose of it otherwise, even though that disposition be according to well settled rules governing the interpretation of wills. The answer to this is that the testator gave to Almira her share without limitation, and it is to be presumed that he did so understanding its legal effect and the consequence in the event of her death. The language employed has a well settled legal significance, which must be regarded as having been within the contemplation of the testator, and is to be accepted as the true meaning of his testament.

The provision of the will which directs that the remainder of the shares of Mary and Susannah for life shall be divided among their brothers and sisters, “or the lawful issue of any such brother or sister who may have died since the decease of this testator,” is a bequest to the children of brothers and sisters deceased at the time of distribution, in substitution of their parents. Lanphier v. Buck, 2 Dr. & Sm. 484. It was so considered in the opinion below, but for some unexplained cause the decree of distribution excludes the appellants from participation, while the shares of other brothers and sisters of the life tenants who predeceased them were ordered paid to their children. In this respect the decree is erroneous. It will be modified, directing a one-seventh share to be paid to the appellants in equal portions.

The decree will be reversed with costs.


text:
    In the matter of the estate of Ezra B. Lake, deceased.
    [Argued July 29th, 1913.
    Decided July 31st, 1913.]
    The refusal of the comptroller to accept the view of an executor and legatee as to the date from which interest shall be computed on a transfer tax, is not subject to review by the ordinary, nor is the comptroller subject to the coercive powers of the prerogative court, the question being determinable only by a proceeding by the comptroller to collect the tax as provided by 4 Comp. Stat. 1910 p. 5310 § 21.

    On petition and order to show cause. ■

      Mr. John Boyd A.vis> for the petitioner.

      Mr. Theodore Backcs, assistant attorney-general, for the comptroller of the treasury.
   Backes, Vice-Ordinary.

Ezra B. Labe died in August, 1900, leaving a last will and testament, one of the items of which reads:

“I give and bequeath under Mary L. Corson, the daughter of Martha J. Lake, my wife, by her first husband, five hundred dollars, in cash, for each and every year during her natural life, to be paid over to her on the first day of April and October.”

The Centenary Fund and Preachers’ Aid Society of the New Jersey Annual Conference of the Methodist Episcopal Church was named and qualified as executor, upon the will being admitted to probate by the surrogate of Cape May county, shortly after Mr. Labe died.

Under the “Succession” Tax act of 1894 (P. L. 1894 p. 318), superseded by the “Transfer” Tax act of 1909 (P. L. 1909 p. 325), this legacy is subject to a tax of five per cent. The tax is payable by the legatee; the collection is committed to the executor, who is also responsible.

In March, 1913, the then surrogate certified to the comptroller the value of the above annuity, as ascertained by him, to be $9,171, and the tax thereon was fixed at $458.55. The comptroller insists upon the payment of the tax, with interest, at the rate of ten per cent, per annum, from August, 1901, one year after the date of the death of the testator. The petitioners (legatee and executor) offer to pay the tax and interest at the rate of six per cent, from the date of the surrogate’s return, March of this year, and now pray that the comptroller be ordered to certify this amount of tax and interest to the treasurer of the state, and that the treasurer be directed to accept the same in full payment.

This is not an appeal from the tax. The point in dispute between the parties is, When did the tax accrue, and from what time should interest be charged and at what rate? The question is not properly before me for decision. The refusal of the comptroller to accept the petitioners’ view, and to certify accordingly, is not subject to review by the ordinary, nor to the coercive powers-of this court. What was said In re Miller Estate, 81 N. J. Eq. (11 Buch.) 476, is apposite.

On the argument counsel for the petitioner intimated that his view was that interest could not be charged on the taxes until the amount of the tax was certified to the comptroller, and requested an expression of opinion, but did not intimate that he would be bound by it. Under these circumstances it would be idle to discuss the subject. The issue may be properly brought before this court by pursuing the provisions of section 21 of the act (Comp. Stat. p. 5310), when the judgment will have a binding effect. Counsel called my attention to two cases in this court, where the facts were similar to this one, in which orders were made granting the relief now sought; but it does not appear that they were contested, nor that the court’s attention was called to the point now mooted.

It may not be amiss to indicate to counsel that my present notion is that there is considerable force in the comptroller’s contention. The statute—not the comptroller—imposes the tax, both as to subject and. percentage, as of the decedent’s death. It contemplates payment within one year after death, and casts the burden of ascertaining the value of the estate to be'taxed upon the legatee, and personal representative. It seems to me that the statutory method providing for the ascertainment of the amount of the estate to be taxed, when that amount is not a specified sum of money, is mere machinery, and that all proceedings thereunder relate to the date of death. In this respect counsel may be more fully informed by consulting the text of 37 Cyc. 1553 et seq., and the many cases there cited.

The order to show cause will be dismissed, but without costs. If, before signing the order of dismissal, counsel for the petitioner desires a further hearing, and will come prepared with authorities, I will hear argument.


author: GrUMMERE, CHIBE- J USTICE.

text:
    Edward Sargent, respondent, v. Realty Traders et al., appellants.
    [Submitted July 7th, 1913.
    Decided November 17th, 1913.]
    1. An agreement for the sale of lands, which is definite and certain, as to the tract to be conveyed, the price to be paid, and the terms of payment, is sufficiently certain to justify a court of equity in decreeing its specific performance.
    2. A vendee of real estate is entitled to appropriate, toward the •payment of the purchase price thereof, moneys belonging to him which are in the possession of the vendor, and which are held by the latter for his (vendee’s) general use and benefit. '

      3. In decreeing the specific performance, by the vendor, of a contract for the sale of land, a court of equity will not require him to enter into covenants of warranty not stipulated for, and not necessary to effect a transfer of the estate.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell.

      Messrs. Jones & Grlceson, for the appellants.

      Mr. Charles M. Mason, for the respondent.
   The opinion of the court was delivered by

GrUMMERE, CHIBE- J USTICE.

In June, 1912, the Realty Traders corporation held an auction sale of lots comprising a part of a tract of land owned by it in Hudson county, and known as Arlington Park. Sargent attended this sale, and was the successful bidder upon twenty of the lots. The terms of the sale of these lots were agreed upon between-him and one Hagedorn, the president of the corporation) by word of mouth, but were not at any time put in writing. This agreement provided that Sargent should pay down $1,069 in cash, pay the remainder of the purchase-money in four years, and pay interest thereon in the meantime. In pursuance of this agreement Sargent deposited his check for $1,069 with the auctioneer while the sale was in progress, and received his receipt therefor. This cheek was subsequently paid. Shortly after the termination of the auction sale he entered into'possession of lots 8, 9, 10 and 11 of block 6 of the Arlington Park tract (these being four of the lots struck off to him at the auction sale), and began the erection of dwelling-houses thereon. The purchase price of these lots was $300 each. While the buildings were in course of' erection he demanded from the corporation a deed for the lots, and, that demand not being complied with, filed his bill to compel their conveyance to him. On final hearing the learned vice-chancellor to whom the cause was referred advised a decree directing the .Realty Traders to convey tlie lots to Sargent by "a good and sufficient warranty deed” upon the payment by him to it of $1,200, less a credit on that payment of $1,069, the amount deposited by him with the auctioneer as above set forth. A decree to this effect was accordingly entered, and from it the Realty'- Traders now appeals.

The first ground upon which the appellant relies for a reversal of the decree is that the contract, being a verbal one, is unenforceable under the statute of frauds, and is too uncertain in its terms to be taken out of that statute, notwithstanding that there was a part performance by the respondent by a payment of a portion of the purchase-money, entry upon the land under the contract, and the partial erection of buildings thereon by him. This contention apparently rests upon the theory that the oral agreement between the parties was not that which was asserted by the respondent, and is hereinbefore recited, but a very different one, testified to by the president of the appellant compan)', the terms of which were left to some extent to be settled by future arrangement, and upon which rhe minds of the parties never met. But what was in fact the real agreement between the respondent and the appellant was a question to be determined from a consideration of all the evidence in the case, and it was found by the learned vice-chancellor to be that affirmed by the respondent. The testimony submitted fully justified such a finding; and the agreement thus established was sufficiently certain, in its material particulars, i. e., as to the land to be conveyed, the price to be paid for it, and the terms of payment, to justify a decree for its specific performance. It is true that the mandate of the decree varies in one respect from the agreement proved, in that it directs the whole of the purchase-money to be paid upon the delivery of the deed; but as this variance would seem to be not harmful to the appellant, and more especially as it is not made a ground of appeal, it cannot be made the basis of a reversal of the decree.

Next, it is contended that the decree is erroneous because it fails to charge the respondent with taxes upon the land paid by the appellant since the time of the making of the agreement. The decree rvould be fairly open to this criticism if there had been any proof in the cause that any such taxes had accnied and been paid by the appellant. Such proof was wanting, however, and, in its absence, there was no ground for such a provision in the decree.

Thirdly, we are asked to reverse the decree upon the ground that it was error to direct that the whole of the $1,069 deposited by the respondent with the auctioneer should be credited upon the purchase-money, the contention being -that only four-twentieths of that amount should be so credited, as the remaining sixteen-twentieths were to be credited on account of the sixteen other lots struck off to the respondent at the auction sale. The deposit was made upon an agreement which was unenforceable under the statute of frauds, so far as the proofs show, except as to the four lots which are the subject of the present litigation, and the respondent, taking advantage of the statute, refused to perform 'it. Upon such refusal the sixteen-twentieths of the deposit became a fund in the hands of the appellant, held by it for the benefit of the respondent, payable on demand, and recoverable by an action on the common counts. Smith v. Administrators of Smith, 28 N. J. Law (4 Dutch.) 208, and cases cited. The money being his, the respondent was entitled to appropriate it on account of the payment of the purchase price of the land which the appellant was in equity bound to convey to him under the contract. The decree, consequently, is not legally objectionable upon this ground.

Lastly, it is contended that the decree should be reversed because it compels the appellant to execute a warranty deed, although the agreement contained no provision for such a conveyance. We think this point well taken. The respondent is entitled to a conveyance of the fee, but covenants of warranty are not necessary or appropriate for that purpose. They are distinct from, and collateral to, the transfer of the title. If they are added they do not pass any greater estate than is expressly conveyed by the granting part of the deed. In considering a similar ground of reversal on tire review of a decree for a specific performance this court in Lounsbery v. Locander, 25 N. J. Eq. (10 C. E. Gr.) 554 declared that under a contract to convey equity will not compel the vendor to enter into any covenants for title where no defect in the title is disclosed, in the absence of any stipulation that the purchaser shall have a conveyance with such covenants. And this is true, not only with relation to covenants for title, but as to all other covenants of warranty. Stengel v. Sergeant, 74 N. J. Eq. (4 Buch.) 20. As was said in the first of the cited cases, a decree for a conveyance by a deed of bargain and sale will give to the respondent all that he contracted for. To add thereto covenants not stipulated for, which are not necessary to effect a transfer of the estate, will give him what his agreement calls for, and something beyond. For this reason the decree must be reversed and sent back to the court of chancery to be amended to the extent indicated.

For affirmance—None.

For reversal—Tins Chief-Justice, Garrison, Swayze, Parker, Bergen, Yoori-tees, Minturn, ICalisci-i, Yreden-BURGII, CONGDON, WlTJTH, TeRHUNH, HePPENI-IEIMER--13.


author: Garrison, J.

text:
    In the matter of the application of the Prudential Insurance Company of America for the acquirement of its capital stock for the benefit of its policyholders.
    [Argued September 26th, 1933.
    Decided October 24th. 1913.]
    3. Upon a motion to dismiss nn appeal that brought up to this court an order made by the chancellor of this state, appointing three disinterested persons to appraise the value of the capital stock of the Prudential Insurance Company of America pursuant to the provisions of the statute for mutualizing stock life insurance corporations (P. L. 1913 p. 151) — Held, that such statutory proceeding, regardless of the agencies that take part in it, is review-able 'by certiorari only and not by an appeal from the action of such legislative agent directly to this court.
    2. The case of East Orange v. Hussey, 70 N. J. Law (1/1 Tr.) SJ/1/, followed.

      On motion to dismiss appeal.

      Mr. John R. Hardin and Mr. Robert J-I. McCarter, for the appellants.

      Mr. John W. Griggs and Mr. Merritt Lane, for the policyhol ders.

      Mr. Richard V. Linddbury and Mr. Edward D. Dwffield, for the Prudential Insurance Comiianjr of America.
   The opinion of the court was delivered by

Garrison, J.

This is a motion by the Prudential Insurance Company of America to dismiss an appeal taken by certain of its stockholders from an order, appointing three disinterested persons to appraise the value of its capital stock, made by the chancellor of this state pursuant to the provisions of an act entitled “An act to permit any stock life insurance corporation of this state to acquire the capital stock thereof for the benefit of its policyholders and to convert such stock life insurance corporation into a mutual life insurance corporation.” P. P. 1918 p. 151.

This enactment provides a special statutory proceeding designed to accomplish the object expressed in its title and to that end constitutes the chancellor of this state as the legislative agent through whose instrumentality such proceeding shall be administered.

Speaking generally the act in question provides for the condemnation of the capital stock of a stock life insurance company for the purpose of fixing the price at which such stock may be acquired by such company, and for the various other steps looking to the acquisition of such stock and the transformation of such company into a mutual life insurance company. Greater particularity is not required, it being sufficient for present purposes to say that the administration of this statutory scheme is cast by the legislature upon the chancellor of this state or its court of chancer}1', a distinction which, if it exists under our constitution, is of no practical moment upon the present motion.

The constitutionality of this statutory proceeding is challenged in limine by the owners of stock affected thereby, the method of such challenge being the taking of an appeal from the initial order made by the chancellor in the course of such statutory proceeding directly to this court. The propriety of this appeal is now challenged by the corporation at whose instance the legislative machinery w.as set in motion.

Normally, statutory proceedings of this nature are reviewed by the supreme court by virtue of its prerogative writ of certiorari, and there is nothing in the nature or object of the present proceeding to take it out of this general rule. So that if the legislative agent designated in the present statute had been, let us say, the commissioner of banking and insurance, there would not be the slightest doubt but that certiorari was the proper remedy by which to review his action under such statute or to test the validity of the statute under which such action was hack

Such supposititious case would be indistinguishable in principle from the ordinary proceeding to condemn land in which a justice of the supreme court as the legislative agent designated in the statute appoints three disinterested freeholders to appraise the value of the land sought to be taken by compulsory purchase from the owner thereof, who may, by the writ of certiorari, challenge in limine the right of the condemning agent to acquire his land or the validity of the statutory authority under which such right is claimed.

If, therefore, a different, method of review obtains in the present statutory proceeding, as it actually is, it must be solely because of the official character of the agency selected by the legislature to administer it, or rather because of the nature of the judicial duties ordinarily performed by such agent in some other capacity; for in no other respect does the actual case differ from the supposititious one.

If such a distinction is valid it establishes tire novel and highly important doctrine that the method by which a statutory proceeding shall be reviewed depends not upon the nature of such proceeding but upon the personnel of the agency selected to administer it, or rather upon the character of the duties that are performed by such legislative agent in some other official capacity; so that if such legislative agent be also a court of general jurisdiction the remedy under such doctrine would be by an appeal which, in the case of the common picas, would go to the supreme court; in the case of the circuit court would go either to the supreme court or to this court, and in the case of the court of chancery would go directly to this court by an appeal in equity. Tt is apparent that by force of such doctrine the writ of certiorari is entirety shorn of its prerogative, character, since the legislature may in every case by the selection of one legislative agent rather than another determine that the method of review shall be other than certiorari.

It is evident, therefore, that the present motion involves considerations of the most important and far-reaching character.

That such doctrine receives no support upon general principle from our existing institutions is shown by the fact that the action of the common pleas in granting or refusing a tavern license is, and always has been reviewable by certiorari, notwithstanding that such legislative agent is a court of general jurisdiction, and the same is true of proceedings to lay out public roads and other statutory proceedings brought before that court as a legislative agent.

The same is true of the circuit court, and the case of East Orange v. Hussey, 70 N. J. Law (41 Vr.) 244 which this fact is established, is not only destructive of the supposed doctrine we are considering but is also necessarily dispositive of the motion now before us.

That was a motion to dismiss a writ of error that brought up to this court an order of the circuit court dismissing proceedings in a municipal improvement. The writ of error was dismissed and the ground therefor and the line of reasoning pursued by this court were that the statutory proceeding was one that could be reviewed by the supreme court upon certiorari; that it was beyond the power of the legislature to require the supreme court either to forego such writ or to share it with another tribunal, which it would be required to do if the order of the circuit court was made in its judicial capacity; that the legislature would not be presumed to have attempted to do that which it was powerless to do, and hence that the designation of the circuit court as a participant in the statutory proceeding was as a legislative agent which was not modified or affecLcd by the fact that the agency thus employed was in another capacity a court of general jurisdiction.

One headnote to the opinion in that ease is: “The supreme court is the sole depository of the remedial writ of certiorari which by force of article 10, section 1 of the constitution it cannot he required to share with another, tribunal.” Another is: “A writ of error having been returned, bringing up a statutory proceeding and a motion to dismiss such writ having been heard —Held, that such proceeding, regardless of the agencies that tools part in it, is reviewable by certiorari only, and not by writ of error.”

Applying these established rules to the motion now before us, it necessarily follows that the present statutory proceeding is reviewable by certiorari only, regardless of the fact that one of the agencies that took part in it is the court of chancery, and that that circumstance cannot require the supreme court to forego its writ of certiorari or to share it with this court, which it would be required to do if an aggrieved party may review, such statutory proceeding in this court upon a direct appeal.

The case cited so conclusively settles the principles pertinent to the present motion that their further discussion is neither requisite nor justifiable. The appeal is dismissed.


author: Swayzb, J. Garrison, J.

text:
    In re will of George S. Bullivant.
    [Argued November 30th and December 2d, 1912.
    Decided November. 1913.]
    1. A testator after he had subscribed his name to a will, desired to insert a bequest; an interlineation to effectuate that intent was made, the will was then published,, and the signature acknowledged in the presence of the witnesses, who thereupon subscribed their names as witnesses in the presence of the testator.—Held, that the will with the interlineation was signed by the testator.
    2. A testator may adopt as his sign his own sign-manual made at the foot of his will before its completion. X-Iis acknowledgment makes it his signature to the will as it stands.
    On appeal from, a decree of the prerogative court.

      Mr. FrcmMin IF. Fori (Messrs. Fori & Fori 021 the brief) > for the appellant.

      Mr. Fdwm A. Rayner, for the respondent.
   The opinion of the court was delivered by

Swayzb, J.

Wc agree with the judge of the orphans court that the evidence shows a publication of the will. The only legal question involved in the case is whether the will was signed by the testator as the statute requires. What happened was that the testator, after he had subscribed his name, desired to insert a bequest of an automobile. An interlineation to effectuate that intent was made, the will was then published, and the signature acknowledged in the presence of the witnesses, who thereupon subscribed their names as witnesses in the presence of the testator. The point made is that the testator never subscribed his name to the will as completed, and the question is whether his acknowledgment of his own sign-manual amounts to a signing. The statute makes a distinction between the act of the testator and the act of the subscribing witnesses. Comp. Stat. 5867 pl. 24. He must sign; they must subscribe their names. Under the English statute before 1837, there had been several decisions as to the meaning of the word “sign.” A mark; initials, a wrong or assumed name, an engraved die, were all held to suffice. 1 Jarm. 201 ff. (Randolph & Talcott's ed.); 1 Wms. Ex. (6th Am. ed.) 108. In short, the construction put upon the word “signed” by the courts is the original meaning of a signum or sign, rather than the derivative meaning of a sign-manual or handwriting. This construction harmonizes with the change in the language of the statute when it came to the subscribing witnesses who are required to subscribe their names. This signum must be the sign of the testator as Chancellor Zabriskie held. In the matter of Gertrude Rice Mc-Elwaine, 18 N. J. Eq. (3 C. E. Gr.) 499. The question, therefore, comes to this: Can a testator adopt as hi3 sign his own sign-manual made at the foot of the will before its completion? We see no reason why he may not do so as well as adopt a mark, an engraved signature, or a false name, as held in the cases cited by Jarman. The important thing is that the will should be complete at the time-of publication and attestation. As Justice Gray said in Chase v. Kittredge, 11 Allen 49 (at p. 64) : “A testator may alter his will as he pleases at any time before it is formally attested. He may write it out in full and sign if, and it has no effect as a will until duly attested. It is unimportant whether it is or is not signed by the testator until it is produced to the witnesses. It is only important that it should be his will in writing and signed when they attest and subscribe it; and it is equally his will in uniting, whether signed in their presence or at some previous time.” This opinion was cited by us on another point in Lacey v. Dobbs, 63 N. J. Eq. (18 Dick.) 325, without any suggestion of disapproval. It may be conceded that under the circumstances of this case the will offered for probate was not signed by the testator within the meaning of the statute until he adopted his own handwriting as his signature to the will by acknowledging it to be such in the presence of the witnesses. That acknowledgment made it his signature to the will as it stands. As we said in Ludlow v. Ludlow, 36 N. J. Eq. (9 Stew.) 597 (at p. 600), the statute of 1851 made the acknowledgment of the signature proof of signing. The opinion of Chancellor Zabriskie in the MoElwaine Case is not to the contrary.- There the signature had been made by another, the testatrix “did not, after her name was signed, touch the paper, or say that it was her signature, and there was no proof that, after her name was signed, she acknowledged or declared that it was her will.” The ordinary in that case was dealing with a signature made by another and he properly dwelt on the danger involved, and intimated that even that would suffice if done in the testator’s presence and by his express direction. The danger dwelt upon by the ordinary in that case is, however, no greater than the danger of opening the door to parol testimony to prove that the sign-manual of the tes tator duly acknowledged as his signature was not signed by him to the completed paper on which it is written. What Chancellor Zabriskie feared was the lack of any act by the testator, but in this case we have such an act. It would have been mere idle form for him to write his name again. He must indeed adopt by his acknowledgment the name already written as his sign to the then completed will; but that also he did. Later, Chancellor McGill, in Frits v. Turner, 46 N. J. Eq. (1 Dick.) 515, held that the signature was good, although the testator’s hand was guided by tire draughtsman and it was a disputed question whether the testator could write at all. “The important question,” he said, “is whether the testator had the purpose to write his name or make his mark upon the will as his signature to it, and whether, in fact, he did make such a physical effort to sign as resulted in a mark upon the paper by which the paper could be identified.” While the decree was reversed (49 N. J. Eq. (4 Dick.) 343), it does not seem to have been on any ground that affected the chancellor’s view on this point, for if that had been the case it would have been quite unnecessary for the court of errors and appeals to send the case back for further testimony; the undisputed facts would have been fatal to the validity of the will.

If we look to the analogies of the law, we are sustained in our view. A promissory note must be signed, and a deed must be sealed. If it could be said that these requirements were not complied with in cases where the instruments were altered, all the discussion in the books as to the distinction between material and immaterial alterations, and between alterations by a party and alterations by a stranger, would have been idle, since it would have sufficed to say that the document produced has never been signed or sealed. Has it ever been suggested that a promissory note ceased to be such because altered by the maker after he had put his name thereto, or that a deed was not. sealed because after the seal was affixed an alteration was made by the grantor ? In these cases the instrument speaks from the time of delivery; a will becomes effective by acknowledgment of the signature and publication.

For these reasons we think the will offered for probate was signed by the testator as the statute requires, and the decree is affirmed. The case, however, is a proper one for allowance of costs out of the estate. .

Garrison, J.

(dissenting).

I think that the signing of his will by a testator must, under our statute, be the signing of his written will. The statute calls it the “signature” of the testator, and whether it be his sign, nup'k, signum or sign-manual, such testamentary act must take place in ihe order named in the statute, and be after the writing of the will. It is this “signature” that the testator may acknowledge to the witnesses in ease it was not made in their presence; such acknowledgment is therefore a substitute in the alternative for the visual act of the witnessing of the making of the signature. If the witnesses have witnessed the signing by the testator an acknowledgment is not authorized by the statute, and, if it were, would not advance the transaction beyond what such witnesses had in fact witnessed. In fine, the acknowledgment merely identifies the testator’s signature as of the time when, had the witnesses seen him make it, they would have witnessed the act that is thus acknowledged solely because they did not so witness it. Whether witnessed or acknowledged the testamentary act in question remains identically the same. The present case, therefore, by force of the testator’s acknowledgment of his signature, stands precisely as if the witnesses had seen him make it, in which case they would have seen him sign his name to a paper that was not his will. Such a signing, whether it be witnessed or acknowledged, is not the statutory signing by the testator of his written will; for a will is not written until it is completed any more than it is before it is commenced. A will thus executed in the inverse order of the statute, i. e., first signed, then reduced to writing, and such previous signature then acknowledged, is no more a compliance with the statute than if the witnesses had witnessed the testator write his name on a piece of blank paper on which over his name his will was afterwards written. In fine, if a testator has not in fact signed his written will no acknowledgment he can make can alter that fact or supply that deficiency, for it is only his signature he can acknowledge—not his will; and in the last analysis the fundamental error is that of construing the statute as if it authorized the testator to acknowledge his will, i. e., to adopt as his will a writing that had not been signed by him. The proper construction of the statute stated in a single sentence is that the.acknowledgment is a substitute for the circumstantial act of the witnesses, i. e., their actual witnessing of the writing of his signature by the testator in case they have omitted so to do; but that it is not a substitute for the essential act of the testator, i. e., the signing of his written will which in no case can he omit to do. Being unable to adopt a construction of the statute that varies its plain terms and which by dispensing with the signing by the testator of his written will dispenses with all of the safeguards thus thrown around this essential testamentary act, no course is open to me but to deny that the will in the present ease was properly admitted to probate.

For affirmance—Swayze, Tkenchard, Bergen, Yooriiees, Minturn, Kalisot-i, Yredenbcrgh, Congdon, White—9.

For reversal—The Ci-iiee-Justice, Garrison—2.


author: Sway-ze, J.

text:
    Fagan Iron Works, complainant, v. Calumet Construction Company, defendant.
    [Submitted July 7th, 1913.
    Decided November 17th, 1913.]
    The only asset of an insolvent corporation was a chose in action then in litigation; assignments of portions of this claim had been made to several creditors at different times. The claim was settled by authority of the court of chancery for an amount insufficient to pay the receiver’s costs, allowances and fees, and the full amount due the assignees.— Held, that the costs, allowances and fees should be charged against each assignee in proportion to the amount of his claim and that the balance should be paid to the assignees in the order of priority.
    On appeal of Gilbert Collins and others.

      Mr. Charles B. Bradley, for the appellants.

      Messrs. Roberson .£ Demaresi, for Colonial Bank, respondent.
   The opinion of the court was delivered by

Sway-ze, J.

This appeal presents a novel question. A receiver of the Calumet Construction Company was appointed in insolvency proceedings. The only assets seem to have been a claim against-the board of education of Hoboken which had been reduced to a judgment, subsequently set aside by the judgment of this court. Assignments of partial interests in this judgment and, in some cases, of the cause of action on which it was founded, had been made to six different creditors, whose order of priority is not questioned. The bill for a receiver was filed after reversal of the judgment and disclosed no other assets than the claim in suit. The chancellor required some sort of a bond to the receiver, perhaps to secure him for the necessary expenses of further litigation, although the case fails to disclose the fact. Upon failure to give this bond, the receiver advertised the claim for sale to the highest bidder. The only bid was $2,000, which was rejected. Thereupon the board of education offered $12,750 by way of settlement and this was accepted. In distributing this fund, the court ordered that $1,000 be withheld for receiver’s fees, $250 to cover complainant’s counsel fee and costs, and that the $1,250 and the receiver’s disbursements be retained by him and the balance distributed among the assignees in the order- of priority. The effect of this order was to deprive the appellants whose assignment was last in order of priority of any share in the fund. They now claim that the receiver’s fees, allowances and costs should be charged upon all the assignees in proportion to the amount of their several claims. We think that under the circumstances of this case their claim should be sustained. All the assignees were interested in a single cause of action and in recovering as much as possible from the board of education. Any action, upon the claim must be for the use and benefit of all. They were interested not only in prosecuting the claim successfully, but in harmonious co-operation in the litigation, and especially in harmonious action to secure a favorable settlement. The failure of the assignees last in order of priority to co-operate, and still more their active opposition to a settlement which would pay the other assignees in full and leave them nothing, made it to the interest of all that any settlement should be upon such terms as would enure to the common benefit. We can hardiy doubt that if Collins & Corbin (the last in order of priority) had opposed the settlement that was made, the Vanderbilt executors (the first in order of priority) would have been willing to make an equitable arrangement by which the greater part of their money would be secured out of the wreck rather than subject themselves to the hazard and expense of further litigation, an expense which might fall upon them alone in case the other assignees abandoned hope of realizing anything for themselves, as well they might in view of the small bid made at the public'sale. No such arrangement was made, but all parties were in a court of equity and might rightly assume that the court in distributing the fund would distribute it upon equitable principles. No more equitable principle can be suggested than an arrangement which sensible men actuated by a desire to recover as much as possible would have willingly entered into. In a case of a common interest in a single chose in action the validity, or at least the amount of which was contested, we think sensible assignees actuated by a spirit of fairness would have agreed to an assessment of the necessary expenses pro raía. The case differs from the ordinary one where there are legal liens that are distinct and unquestioned and need only to' be enforced. It more nearly resembles the case of several different funds administered by the same receiver. “Where there arc several funds, and the receivership is as necessary for the conservation of the one as of the other, they should bear the expense in proportion to the benefit received by them, and in the absence of facts justifying such course, it is error to charge the whole of the expense on one fund.” SU Gyc. 8&9. The very existence of the debt that had been assigned 'was here in question. Even if some amount was conceded by the defendants, they might well have availed themselves of the situation to prevent a recovery. To secure a settlement it was necessary for the assignees to show a readiness to enforce their rights. They were in the same boat and likely to suffer alike from its wreck. The metaphor suggests an analogous case, somewhat remote, indeed, and in a very different branch of the law, but, nevertheless, illuminating, in the absence of any precedent precisely in point. That is the case of general average in maritime law. General average is a contribution by the several interests engaged in a maritime, adventure to make good the loss of one of them for voluntary sacrifices of part of the ship or cargo to save the residue of the property and the lives of those on board from an impending peril, or for extraordinary expenses necessarily incurred for the common benefit and safety of all the interests in the adventure. 86 Gyc. 872. Three conditions are necessary—first, that the ship and cargo should be placed in a common imminent peril; secón,cl, that there should be a voluntary sacrifice of property to avert that peril; third, that by that sacrifice the safety of the other property should be presently and successfully attained. Columbian Insurance Co. v. Ashby, 13 Pet. 331, 338 In maritime law the principle has the sanction of ages so that every shipowner and every shipper contracts with reference thereto, but its original basis must either have been that of natural justice or implied contract; and that is, as Lord Eowen said, largely a matter of words. Burton v. English, 12 Q. B. D. 218, 223. The rule became law because it was a rule by virtue of which in the long run all engaged in a common adventure profit. Although it has never been applied to the particular ease before us, the law grows’by means of sound analogies, and we are not deterred by its novelty from adopting a rule for the benefit of all, which has for centuries been applied with satisfaction to a different condition of affairs.

In the present case, Collins & Corbin assented to, or at least did not oppose a settlement of the claim at a figure that would leave nothing for them if the costs, allowances and disbursements were to be first paid. There was imminent peril of loss, and by their sacrifice the safety of the other claims was presently and successfully attained. The sacrifice was by the receiver acting under the authority of the court, which authorized a settlement for a sum insufficient to pay the receiver’s allowances and costs and satisfy all the claims. The receiver was acting for all concerned, and Collins &.Corbin had the right to expect from the equity of the court as favorable treatment as they could undoubtedly have secured by private contract. It can malee no difference whether we say that they are entitled to contribution from the other assignees in analogy to the general average of the maritime law, or whether we say that where a court of equity authorizes a settlement that shuts out an interested party to the benefit of others, it will imply a contract on their part to contribute to the expenses or whether -we rest the claim to contribution upon the substantial justice of those who receive the benefit contributing to the burden.

Another analogy perhaps as close is the liability of a tenant in common to contribution for expenditures absolutely necessary for the benefit and preservation of the common property (38 Cyc. 54), a right that has been sustained where costs have been incurred in a necessary and proper suit for the benefit of the common property. McClintock v. Fontaine, 119 Fed. Rep. 448.

The order of distribution must be reversed and the record remitted, to the end that an order be made directing that the costs, allowances and fees be charged against each assignee in proportion to the amount of his claim, and that the balance be paid to the assignees in the order of priority.

For affirmance—Parker, Voori-iees, Minturn, Wi-iite—4.

For reversal—The Chief-Justice, Garrison, Swayze, Trenci-iard, Bergen, Kalisch, Vredenburgk, Congdon, Teriiune, IÍEHPENI-IEIMER—10.


author: Bergen, J.

text:
    James H. Vreeland, complainant-respondent, v. The Forest Park Reservation Commission, defendant-appellant.
    [Submitted March 24th. 1913.
    Decided June 18th, 1913.]
    The act entitled “An act for the protection of woodlands,” approved April 12th, 1909 (P. L. 1909 p. 10%), violates the constitutional prohibition against taking private property for public use without compensation, and affords no support for an attempt to take private lands without compensation.
    On appeal from a decree of the court of chancery advised by Advisory Master Jay Ten Eyck.

      Mr. 'William I. Lewis, for the complainant-respondent.

      Mr. Edmund Wilson, attorney-general, and Mr. Nelson B. Gaskill, assistant attorney-general, for the defendant-appellant.
   The opinion of the court was delivered by

Bergen, J.

The bill of complaint in this cause charges that the “Erie Nailroad Company,” under the direction and authority of the “Forest Park Eeservation Commission” of the State of New .Jersey, threatens to enter upon complainant’s lands and there, at a distance of not less than one hun dred feet nor more than two hundred feet from the outer rail on each side of the track of the railroad of the 'defendant corporation, and extending parallel with it, to clear a scrip of complainant’s land, not less than ten feet wide, of trees, brush, grass and turf, and expose the bare earth and then and there to cut down said trees growing on said strip and dig up the said land, as authorized by a statute of this state entitled “An act for the protection of woodlands,” approved April 12th, 1909, and the prayer is that the “Forest Park Eeservation Commission” and the Erie Nailroad Company be enjoined from so doing.

The regularity of the proceedings had under the act are not questioned and the answer of the Erie Nailroad Company admits that it intends to enter upon the complainant’s land and cut down the trees thereon; clear the grass and turf 'and expose the bare earth, so far as it may be necessary to comply with the statute of this state. It also admits that no offer of compensation to the complainant has been made, and that no proceedings have been taken for the purpose of condemning the land under the right of eminent domain or otherwise.

The statute, which the defendants claim authorizes the intended entry upon the complainant’s land, provides that wherever there is woodland, meaning thereby land or swamp, upon which there is a growth of woods or brush, adjoining the right of way, or is less than one hundred and ten feet from the roadbed of a railroad upon which are operated locomotives using coal or wood for fuel, there shall be constructed a fire line, in the manner threatened by defendants as described in the bill of complaint, which defendants claim is a justification for their proposed action.

The complainant challenges the constitutionality of this act upon, the ground, as he claims, that it is a taking of his land for public use without compensation. This contention was sustained in the court of chancery, and a decree made granting the restraint prajmd for, from which decree the defendants appeal.

That the complainant will be deprived of tire ordinary use of his property and required'to submit to its spoliation to a considerable extent, is not denied, but this the defendant claims is an incident arising from the exercise of police powers to which the complainant must submit for the general public good.

We hat e no doubt that the proposed action amounts to a taking of the complainant’s land. The trees and brush thereon are to be cut down, the grass destroyed in such a manner as to expose the bare earth, and where the land is swampy, a ditch not less than three feet wide is to be dug to the level of permanent water. In addition to this, all logs, fallen branches of trees, brush, grass and other combustible material will be cut and removed from complainant’s land, between this strip and the railroad, a distance not less than one hundred feet, but it may be two hundred feet. The threatened appropriation of the strip of land ten feet or less in width will deprive the complainant of all beneficial use of the land involved, and is a taking of land which cannot be justified, as a proper exercise of police powers.

There is nothing in the nature of the land, or its use, that creates a nuisance to be abated. The sole purpose of the statute is to protect the public from a non-existent, but possible condition, if sparks of fire should be thrown from the engines of the defendant railroad company, running over land adjacent to that of the complainant, and for that purpose authorizes the appropriation of private lands lying adjacent to railroads for the purpose of preventing the spread of fires, caused by the railroad companjy for the benefit of property other than that of the owner of the land taken.

In the matter of Petition of Cheesebrough, 78 N. Y. 232, the statute declared that, whenever it appeared necessary for the protection of the public health that any part or parcels of land should be drained by other means than sewers, the board of health of the municipality affected was empowered to direct the same to be done, and if the necessary drains could not be connected with a sewer, the drainage should be carried to the adjacent river. Under this statute the authorities entered upon the petitioner’s land and constructed an outlet through his lands into the Harlem liver for all of the drains it ivas thought necessary to build, and there it was held that no statute could confer authority to construct such a drain through the land of petitioner without compensation to him for the land taken, if done without his consent. The opinion of the court of appeals was delivered by Judge Earle, in which he said: “But there never can be any necessity, under the police power, or tire law of necessity, to permanently appropriate land to the public use without compensation. It may temporarily be interfered witli or appropriated; necessity may justify so much; but when the necessity passes away, the right ceases.”

In the case under consideration, nothing appears which justifies the appropriation of the complainant’s land under the police power. The contemplated action is not a regulation of the use by the complainant of his property, nor does any condition exist which may be interpreted to create an emergency which would warrant the taking of private property for use or destruction, for the general good without compensation. All that appears is, that in order to establish a fire line on each side of all of the railroads of the state, the adjacent land may be taken without compensation, and being an actual permanent appropriation for the protection of the public against the possible spread of fire, the complainant is entitled to compensation.

As the statute, under which the defendants justify, authorizes the taking of his land without compensation, it contravenes article 1 section 16 of the constitution which declares “private property shall not he taken for public use without just compensation.”

The decree appealed from should he affirmed.

For affirmance—The Chief-Justice, Garrison, Swayze, Trenchakd, Parker, Bergen, Yoorhees, Minturn, Kaliscii, Bogert, Yredenburgh, Conguon, White, Terhune-t-14.

For reversal—-None.


author: Minturn, J.

text:
    E. Alexander Underwood, complainant-respondent, v. Herman & Company, a corporation, defendant-appellant.
    [Submitted July 7th, 1913.
    Decided November 17th, 1913.]
    1. A'* covenant in a deed of conveyance that neither party shall erect upon the land conveyed a building other than “a dwelling-house and its appropriate buildings” will not be enforced by injunction against a grantee who proposes to erect a three-story apartment-house, where it appears that the indefinite and uncertain language of the covenant has been given a practical application and interpretation upon the land by prior grantees, who were allowed to erect two-family houses of three stories and other two-family houses upon a single plot.
    2. To -warrant the issuing of an injunction to restrain the owner of the fee from applying his land to a lawful practical use, because of the existence of a restrictive covenant in the grant, it must appear that the terms of the covenant leave no doubt as to their meaning.
    On appeal from a decree of tbe court of chancery advised by Vice-Chancellor Howell.

      Mr. Frank F. Bradner, for tbe complainant-respondent.

      Mr. Philip J. Scholland. for the defendant-appellant.
   The opinion of the court was delivered by

Minturn, J.

The bill was filed to enforce the following building restriction:

“The said party of the second part for himself, his heirs and assigns, doth covenant to and with the said party of the first part, their heirs, executors and administrators, that neither the said party of the second part, nor his heirs or assigns, shall or will at any time hereafter erect upon said lot any building other than a dwelling-house and its appropriate buildings, the said dwelling-house to cost in no case less than three thousand dollars, and to be located at least twenty feet distant from the line of Osborne Terrace; • and that no barn shall be erected on said lot within one hundred feet from the line of Osborne Terrace, neither shall they erect or permit upon any part of said premises any buildings to be used for the sale of intoxicating liquors, or for any manufacturing-business, or any hog pen, public laundry, livery stable, meat or fish market, or for any purpose that would be considered detrimental, noxious or dangerous to the owners or occupants of the surrounding- premises.”

This restriction was contained in all the deeds of conveyance of forty-eight plots of ground, containing fifty feet frontage by one hundred and fifty feet in depth, made and executed by James PI. Osborne and Tíobert A. Osborne to various grantees, among whom were the complainant and the- defendant.

The lots were situated on Osborne Terrace, running south from Clinton avenue, in the city of Newark, for a distance of twelve hundred feet. The complainant was among the first purchasers and erected a one-familv residence upon the plot he purchased. The plots thus restricted were built upon excepting that purchased by the defendant and another purchaser of a lot near Clinton avenue. Thirteen of the forty-seven houses built upon the plots are two-family houses, and thirty-four of the plots contain one-family houses.

The defendant undertook to erect upon the plot purchased by it what is termed “a modern high-class apartment-house” three stories high.

The ease shows that nearly all the houses on the tract are three stories in height in front. It becomes manifest from the testimony that whatever design the original grantors entertained of restricting the use of the tract to the erection of single-family houses has been practically abandoned.by the erection presumably with the acquiescence of all parties concerned, of a number of two-family houses upon a single plot, and in at least two instances of two-family houses upon a single plot, and such was the situation when the defendant took title.

In this situation the defendant undertook to excavate for the construction of its apartment-house when it was enjoined by a restraining order, and, subsequently, by a temporary injunction, followed by the decree advising a permanent injunction, which presents the subject-matter of this appeal.

We find it unnecessary, lor the disposition of this case, to say-more than to reiterate the principle of equitable jurisprudence so frequently applied in cases.of this nature, that unless the right to restrict is made manifest and clear in the covenant, a court of equity will not aid by its process of injunction one owner to restrict another in the otherwise lawful use to which he may put his land. Howland v. Andruss, 80 N. J. Eq. (10 Buch.) 276.

In the ease of Fortesque v. Carroll, 76 N. J. Eq. (6 Buch.) 583, Mr. Justice Garrison, speaking for this court, where the covenant limited construction to “not more than one building shall be erected on a single lot as mapped on plan,” says: “It is well settled that in cases where the right of a complainant to relief by the enforcement of a restrictive covenant is doubtful, to doubt is to deny. Courts of equity do not aid one man to restrict another in the uses to which he may put his land, unless the right to such aid is clear.” Citing Newbury v. Barkalow, 75 N. J. Eq. (5 Buch.) 128.

This formula is but the practical application of the fundamental equitable doctrine that all restrictions upon the use of land conveyed in fee, which restrain the grantee from exercising the rights of an owner are strictly construed. Walker v. Renner, 60 N. J. Eq. (15 Dick.)493.

We consider these principles applicable to the case at bar, and they become dispositive of the question involved. The grantors in their covenant made no attempt by language to define the meaning of a “dwelling-house and its appropriate buildings,” but allowed each grantee in .the practical adaptation of the land to his personal requirements, to constiue the language of the covenant to meet the personal exigency.

In this manner language of an uncertain and indefinite character received a practical interpretation upon the land by the grantees, presumably with the acquiescence of the grantors and prior grantees.

This practical interpretation of the covenant which the learned vice-chancellor has found tó exist, emphasizes the contention that the variations and departures from the strict terms of the covenant are due to its uncertainty and indefiniteness; factors which bring the case within the application of the doctrine of the cases to which we have referred, and which require the reversal of the decree appealed from.

The decree appealed from will therefore be reversed.

For affirmance-—None.

For reversal—Thu Ci-iiee-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Voorheés, Minturn, Kalisch, Vredenburgi-i, Congdon, White, Teri-iune, Heppenheimer —14.


author: Vredenburgi-i, J.

text:
    Simon Dunn, appellant, v. James V. Ryan et al., respondents.
    [Submitted July 7th, 1913.
    Decided November 17th, 1913.]
    A conveyance by a grantor of land, founded’ both upon a money consideration and an express written agreement by the grantees that, as a part of the consideration, they would take care of the grantor “as long as he lives, providing him with a home and rendering him whatever services he requires,” was held to constitute a continuing contractual obligation of the grantees for the violation of which the grantor had his action at law for damages, but that such violation did not render the fee conveyed by the deed conditional so that a bill to set aside the conveyance was sustainable in equity.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis.

      Mr. William Tyacke, Jr., and Mr. George E. Glymer, for the appellant.

      Mr. Willard W. Gutter, for the appellees.
   The opinion of the court was delivered by

Vredenburgi-i, J.

In March, 1912, the complainant (a man about eighty years old, whose wife had recently died) conveyed to the defendants by deed in fee reserving to himself a life estate, his dwelling-house and premises worth about $3,000, for the consideration of $1,000 in cash, and the execution by the defendants of a written agreement to take care of him next mentioned.

The grantor, by the express terms of his grant, provided that he should retain possession of the premises as long as he should live, and by a separate agreement in writing (executed practi- ' calty at the same time as the deed) obtained from the defendants their covenant under seal, reciting that in consideration of said conveyance from him they promised and agreed, in these words, viz.: “To take care of him as long as he lives, providing him with a home and rendering him whatever services he requires.”

After the execution of these papers the defendant, Mrs. Ryan, with the assistance of her daughter, seems by the evidence given at the hearing, to have proceeded to carry out in good faith this contract, until in the month of May next. ensuing, the complainant, by his conduct and demeanor toward the daughter, made it so unpleasant and unbearable for her that she became sick and went home. When her mother, shortly thereafter, came to take her place the complainant said to her it was too late as he had begun the present suit.

This suit was commenced on May 31st, 1912, by the filing of an injunction bill by the complainant against the grantees of the deed praying that they be decreed to execute to the complainant a deed for the premises he had conveyed to them in March, upon his payment to them of $1,000, and that they might be restrained from conveying away or encumbering the premises, and for other relief. There is no specific prayer in the bill that the deed be set aside or declared void, but such in effect was the final relief sought.

The particular grounds for equitable interference on which the bill is based, are that the defendants have not provided complainant with a home, and have not furnished him the necessaries of life according to their agreement under which he conveyed the property, and have refused to do so although often requested.

There is a general charge in the bill that the defendants induced complainant to make the conveyance never intending to take care of him or provide him with the necessaries of life, but fraudulently induced him to. make the conveyance. No facts are stated in the bill to support this charge, nor was there any evidence of fraud offered. On the contrary, the evidence shows the deed was drawn by and was duly acknowledged before complainant’s own attorney, selected by him in the absence of the defendants, and apparently without their knowledge. It was drawn in exact accordance with his wishes. He had independent advice, and was not proved to have been subjected to any influence, and there is nothing in the evidence to show the defendants possessed any influence over him. He testified that he asked nobody’s advice about the execution of the deed, but did •it (to use 1ns own words) “of his own free will." There was no proof that the complainant lacked normal mental capacity, nor was his competency to execute the deed questioned.

We think the deed is not open to the attack made against it whether the defendants have performed their contract to care for the complainant or not. If the defendants broke their contract it was the breach of a covenant, and not of a condition. The complainant’s theory of his legal rights, as exhibited by the prayer of his bill asking, in effect, to set aside his deed as for a condition broken, is untenable, and in such theory, we think, the complainant was in error.

It must be conceded that the agreement in question was regarded by the parties and was so expressed, as a part of the consideration of the deed, and not as a condition. It was simply a contract under seal, for the non-performance of which an action at law for damages would lie. This distinction was clearly defined in the recent case in this court of Butterhof v. Butterhof, 86 Atl. Rep. 394, 395, under the authorities there cited.

In this case a deed was made by a father to his son upon a money consideration, and upon an express stipulation that the grantee as part of the consideration should provide support and maintenance for the grantor during his natural life. It was found by the court that the continuing obligation of the grantee was a part of the consideration for the deed, and it was held that for the breach of it the grantor had his action at law for damages, but that such breach did not render the fee conveyed by the deed conditional or base.

The learned vice-chancellor, in his oral opinion below, concluded there was nothing in the testimony indicating a violation of the agreement in question. We agree with him in this conclusion of fact under the evidence. He seems, however, to have treated the case as'one where in equity the deed might be set aside if the defendants failed to perform the contract, but in this view we do not concur. We think the deed must stand whether the defendants performed their contract to care for the complainant or not.

Since, under the evidence, and for the reasons above stated, we think, the validity of the deed cannot be successfully assailed, it would be of no avail to discuss other questions raised by appellant’s brief. The decree below is affirmed.

For affirmance—Tike Chief-Justice, Garrison, Swayze, Trenoi-iaed, Parker, Bergen, Yoori-ieek, Minturn, Kali sen, Yredenburgii, Congdon, White, Teei-iunb, IIeppeniikimer —14.

For reversal—None.


author: Terhune, J.

text:
    George M. Freeman, appellant, v. Agnes M. Freeman, respondent.
    [Submitted July 7th, 1913.
    Decided November 17th, 1913.]
    Voluntary separation does not amount to desertion, nor can desertion be inferred from the mere fact that the parties do not live together.
    Oh appeal from a decree of the court of chancery advised by Advisory Master Clarence S. Biddle.

      Mr. Herbert 0. Bartlett, for the appellant.
   The opinion of the court was delivered by

Terhune, J.

This is an ex parte divorce suit. The petition is filed by the petitioner to secure a divorce from his wife- on the ground that she was guilty of adultery. The adultery on the part of the wife was established. The master, before whom the depositions were taken, advised the divorce, but the advisory master, following the case of Rapp v. Rapp, 67 N. J. Eq. (1 Robb.) 236, recommended a decree dismissing the petition on the ground that the petitioner had willfully, continuously and obstinately deserted the defendant for more than the statutory number of years last past, and was for that reason not entitled to a divorce from her on the ground of his wife’s adultery.

The petitioner worked on the farm of Edward Martin, where the defendant, Martin’s sister, lived. Later, the petitioner left Martin’s farm and went to work for one Burcham. Edward Martin, it appears, had spent money bequeathed to the defendant, and devised a scheme of marrying her to the petitioner. With his wife Martin went to Bureham’s farm and there accused the petitioner of getting the defendant with child, telling him that he must marry the defendant and that it was a state’s prison offence if he did not. Petitioner denied that he had ever had intercourse with the defendant, but they insisted that he had, and he would go to jail unless he married her. The petitioner was eighteen, and the defendant seventeen years of age at the time. The Martins would not allow the petitioner to stop and see his mother, but conducted him directly to Woodbury, to Edward Martin’s home, Avhere the defendant joined the party. They then immediately went to the mayor’s office and the petitioner and defendant were married by that official. The four persons returned to the house of Edward Martin and the petitioner and defendant spent that night together. The next morning the petitioner left the defendant and returned to his mother’s house at Millville, and has lived with or near her ever since.

From the time of the parting on the day after the marriage no request or attempt was made on the part of either to renew the marriage relationship. Shortly after the marriage the defendant visited the mother of the petitioner and informed her that neither she or her son wanted to get married—that she was not pregnant at the time of the marriage, as her brother insisted, and that she had done nothing that could cause such a condition. Defendant also consulted counsel and made a statement, in writing, under oath, alleging the same facts and circumstances as related by the petitioner and his mother. Whether the purpose of this visit was to have the marriage annulled is not disclosed. The attorney who took the affidavit died and no action was taken.

The case before us is not governed by Rapp v. Rapp, supra. In that case there was proof of a willful, continued and obstinate desertion. Here it appears that the separation was acquiesced in by the parties from the moment of its happening. Their entire line of conduct, subsequent to the marriage when freed from the surveillance of the Martins, shows a mutual determination to repudiate a situation that had been forced upon them. A consideration of the facts and circumstances under which the desertion took place, the state of the mind of both parties, as well as their subsequent- conduct, nowhere discloses on the part of the petitioner a willful and obstinate desertion as contemplated by the statute.

“A married partner who concurs in the other’s going away cannot complain of the going. The just doctrine is that a party who has consented to a separation cannot while the consent continues convert the other’s determination not to renew the cohabitation into desertion.” Bish. M. & D. 1609.

. A fair inference from the proofs before us is that the couple parted by mutual consent, and that after the parting there was no more disposition or refusal on the part of the petitioner to take his wife back than there was a willingness or disposition on. her part to go back. The above view leads to- a reversal of the decree below and the granting of a final decree of divorce to the petitioner and appellant.

For affirmance—None.

For reversal—The Chief-Justice, Garrison, Swayze, TrencHxVRD, Parker, Bergen, Voori-iees, Minturn, Kalisoh, Vredenburgh, Congdon, White, Teiujune, ETeppenheimer —14.


author: Per Curiam.

text:
    Robert S. Hudspeth, trustee, et al., appellants, v. Henry M. Denton et al., respondents.
    [Argued June 17th, 1913.
    Decided October 16th, 1913.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported ante p. 281.

      Messrs. Hudspeth, Rysdyh .<£ Garrison, for ihe appellants.

      Messrs. Yrederiburgh, Wall & Carey, for the respondents.
   Per Curiam.

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

For affirmance—The Ci-iiee-Justice, Swayze, Trencpiard, Kaliscii, Vredenbtjrgi-i, Congdon, Terhune—7.

For reversal—Garrison, Parker, White, Heppeniieimer —A.


text:
    Alfred G. Holcombe et al. v. Trenton White City Company.
    [Argued June 19th, 1913.
    Decided October 16th, 1913.]
    On two appeals from a decree of the court of chancery, one by John S. Broughton, and the other by Charles J. Fury, which decree was advised by Vice-Chancellor Walker, whose opinion is reported in 80 N. J. Eq. (10• Buck.) 122.

      Mr. John M. Dichinson and Mr. Gilbert Gollins, for the appellant and respondent, John S. Broughton.

      Mr. Peter Baches, for the respondent and appellant, Charles J. Fury, receiver.
   Per Curiam.

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

For affirmance—Garrison, Swayjze, Trencitard, Parker, Kalisch, Vredenburgh, Congdon, Terhune, Heppenheimer —9.

For reversal—None.


text:
    The Denver City Water Works Company et al., complainants-respondents, v. American Water Works Company.
    [Argued June 26th, 1913.
    Decided October 16th, 1913.]
    On three appeals from a decree from the court of chancery, one by John S. McMaster, receiver, another by Clarence H. Yenner, and the other by United Water Works Company, Ltd., which decree was advised by Vice-Chancellor Howell, whose opinion is reported in St N. J. Eq. (11 B-uch.) 139.

      Mr. Jolm S. McMaster, for the appellant, John S. McMaster,, receiver.

      Mr. Pierre F. Goole, for the appellants, Clarence H. Venner and United Water Works Company, Ltd.

      Messrs. McDermott & Enright, for the respondents.
   Per Curiam.

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

For affirmance—The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Kalisch, Vredenburgh, Congdon, Ter-HUNE, HePPENHEIMER-10.

For reversal—None.


text:
    Carlotta Heath, appellant, v. Frederick R. Maddock, respondent.
    [Argued June 30th, 1913.
    Decided November 17th, 1913.]
    On appeal from a decree made by the ordinary of the prerogative court, whose opinion is reported in 81. N-. J. Eq. (11 Buck.) iw.

      Messrs. Edward A. & William T. Day,-for the appellant.

      Messrs. Lum, Tamblyn & Colyer, for the respondent.
   Per Curiam.

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

For affirmance—The Chief-Justice, Garrison, Swayze, Trenohard, Parker, Bergen, Minturn, Kaliscit, Vreden-BUHGI-I, CONGDON, WHITE, TERI-IUNE, ITePPBNHÉIMER-13.

■ ■ • For reversal—-None.


text:
    Anna R. McGrath, respondent, v. William F. Norcross, appellant.
    [Argued July 1st, 1913.
    Decided November 17th, 1913.]
    On appeal from an order of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 78 N. J. Fq. (8 Buck.) 120.

      Mr. Thomas F. French ¡ for the appellant.
    Messrs. Collins & Corbin, for the respondent.
   Per Curiam.

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

For affirmance—Ti-ra Ciiier-Justice, Garrison, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisch, VrkdbnBURGH, CONGDON, Wl-IITB, TERIIUNE, HbPPBNI-IEIMER—13.

For reversal—None.


text:
    Joseph R. Beckett, appellant, v. Ferdinand Andorfer et al., respondents.
    [ Submitted July 7th, 1913.
    Decided October 16th, 1913.]
    On appeal from a decree of tbe court of chancery advised by Vice-Chancellor Learning, whose opinion is reported ante p. 125.

      Mr. Austm II. Swachhamer, for the appellant.

      Messrs. French & 'Richards, for the respondents.
   Per Curiam.

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

For affirmance—The'Chief-Justice, Garrison, Swayze, Trenci-iard, Parker, Bergen, Voorj-iees, Kalisch, VredenBURGH, CONGDON, TeBHUNE, HEPPENI-IEIMER—12.

For reversal—None.


text:
    David L. Taylor, respondent, v. Mary S. Borden et al., appellants.
    [Submitted July 7th, 1913.
    Decided October 16th, 1913.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson.

      Mr. Edmund W. Wahelee, for the appellants.

      Messrs. Gohn & Golin, for the respondent.
   Per Curiam.

The testimony in the cause fully sustains the facts found by the learned vice-chancellor. Upon those facts the complainant was clearly entitled to the relief granted to him. The decree appealed from will be affirmed.

For affirmance—The Chief-Justice, Garrison, Swayze, Trenohard, Parker, Bergen, Yoorhees, Kalisch, YredenBURGH, CONGDON, TeRI-IUNE, HePPENI-IETMER—12.

For reversal—None.


text:
    Margate Company, complainant, v. Charles B. Penrose et al., defendants.
    [Argued and decided June 27th, 1913.]
    On appeal from an order of the conut of chancery advised by Vice-Chancellor Learning.

      Mr. H. Starr Giddings, for the complainant.

      Messrs. Bourgeois é Coulomb, for Armend L. Bartlett, appellant.
   Per Curiam.

This is a bill for partition of lands. The title of the complainant to an undivided three-eighths is not disputed. The title of the appellant is questioned by some of her co-defendants. She applied for an order staying proceedings until the title, could be determined at law. The vice-chancellor refused the stay and she appealed. We think it unnecessary to consider the effect of the act of 1912. P. L. 10 IS p. 82k. The complainant has a right to proceed with her suit for partition and cannot be deprived of that right by a controversy between the defendants. Phelps v. Green, 3 John. Ch. 302: Egner v. Meis, 36 Atl. Rep. 943.

The order is affirmed.

For affirmance—The Chiue-Justice, Garrison, Swayze, Trencitard, Parker, Minturn, Kalisch, Bogert, Vreden-BURGI-r, CONGDON, WHITE, HEPPENIIEIMER-12.

For reversal—None.