text:
    Josephine H. Murray and Elida H. Purdy, appellants, v. Rachel A. Lynch et al., respondents.
    [Submitted October 31st, 1901.
    Filed March 10th, 1902.]
    1. When application is made to a surrogate to admit a will to probate and grant letters testamentary thereon, jurisdiction is conferred upon him by our statute to act thereon, except in three classes of cases1, viz., (1) when he finds doubts arise on the face of the will, or (2) when a caveat is put in against proving a will, or (3) when a dispute arises respecting the existence of a will.
    2. In either of the cases above cited, the surrogate is forbidden to act upon the application, but is required1 to issue citations to all persons concerned, returnable to the orphans court, and jurisdiction is conferred upon that court to hear and determine the matters in controversy.

      3. When a surrogate, upon such application, is not thus prohibited from acting thereon, his adjudication admitting or refusing to admit the will to probate, is reviewable by an- appeal to the orphans court made by any person interested, and thereupon the orphans court is given jurisdiction to proceed thereon as if the will had not been proved before the surrogate; provided, the appeal is taken within the- period after the proceedings before the surrogate fixed by the statute.
    4. When a surrogate has duly acted upon- such an application and has made an adjudication and' decree thereon, the power conferred upon him has been- exhausted, and he may not thereafter issue citations requiring the parties to appear in the orphans court in respect to any controversy over the probate of the will.
    5. The jurisdiction of the orphans court over the probate of the will, after it has been duly admitted to probate by the surrogate, only attaches when an appeal has been taken within the time limited by the statute. No jurisdiction will be acquired by citations thereafter issued by the surrogate and returned into the orphans court.
    6. A paper-writing purporting to be a last will and testament of a person who died domiciled' in Essex county, was offered for probate before the surrogate of that county. There appeared nothing on the face of the will to- raise doubt. No caveat was filed and no dispute arose upon the existence of a will. The surrogate took the depositions of the witnesses and- made a decree admitting the will to- probate and granting letters testamentary thereon. No appeal was taken from the surrogate’s decree. After the time for appeal had passed, heirs-at-law and next of kin of the decedent filed a petition with the surrogate stating objections to the will as not well executed, or induced by undue influence. The petition treated the probate of the surrogate as of common form, and prayed that respondents should be required to reprove it in solemn form. Thereupon the surrogate issued citations to the parties interested returnable to the orphans court, and that court dismissed the petition and citations for lack of jurisdiction.—Held, that the surrogate had no jurisdiction to entertain such a petition and issue citations thereon, and that the orphans court had no jurisdiction to determine the matter thus presented.
    7. Quasre. Whether the distinction between probate in common and in solemn form, known to the English ecclesiastical and probate practice, is applicable to any form of probate in this state, but held that the probate by a surrogate by the jurisdiction conferred on him, is not a mere probate in common form, but an adjudication upon proofs and ¿it rem, reviewable only by appeal in the manner provided by the statute. The dictum in Straub’s Case, 4 Dick. Ch. Rep. 264, disapproved.
    On appeal from the Essex county orphans court.

      Mr. Joseph A. Beecher, for the appellants.

      Mr. Joseph Coult, for the respondents.
   Magie, Ordinary.

' The controversy in this cause is presented to this court by an appeal of Josephine H. Murray and Elida EL Purdy from an •order of the orphans court of Essex county dismissing a petition, 'which came before the orphans court in the manner hereinafter described, on the ground of want of jurisdiction in that court to ■hear and determine the matters set up therein.

The printed book discloses that the order appealed from was made by the orphans court upon the following case, viz.: (1) An application presented to the surrogate of Essex county on February 9th, 1900, by Bachel A. Lynch and Emma L. Hendricks, as executrices named in the last will and testament of Bachel A. Cartwright, late of the city of Newark, in said county, deceased, for probate of said will; (2) a certified copy of the will of Bachel A. Cartwright, deceased, and a codicil thereto, and of the proofs taken thereon by the surrogate, and a certified copy of an order or decree of the surrogate made February 9th, ■1900, adjudging the instrument offered for probate to be the last will and testament of Bachel A. Cartwright, deceased, and admitting the same to< probate and directing letters testamentary to be issued ho said applicants, and of the letters issued thereon; (3) a petition presented to1 said surrogate on March 22d, 1901, by Josephine H. Murray and Elida H. Purdy, setting up that Josephine H. Murray was a sister and Elida H. Purdy was a daughter of a deceased sister of Bachel A. Cartwright, deceased; that Bachel A. Cartwright died in Newark on or about January 28th, 1900, seized and possessed of valuable real and personal •estate; that Bachael A. Ljmeh and Emma L. Hendricks, on February 9th, 1900, had presented to the surrogate an instrument purporting to be the last will and testament of Bachael A. Cartwright, deceased, and a codicil thereto, wherein they were named as executrices; that the surrogate had ¿dmitted the will and codicil to probate in common, form, and issued letters testamentary thereon to said executrices, and charging that the will and codicil thus admitted to probate were not, in fact, the last will and testament of Bachel A. Cartwright, deceased, but, if executed by her, were executed under misapprehension, and further charging that the same were obtained from deceased by undue and improper influence, and, after reciting that certain persons named claimed under said will' and codicil and were entitled and intended to be made "parties to the proceedings, it was thereon prayed that the probate in common form might be opened for the purpose of proving the alleged will and codicil in solemn form, in accordance with the established rules and practice, and that citations should issue, citing the above-named executrices and parties in interest to' appear before the orphans court to reprove, in solemn form, the instrument alleged to be the will and testament of said deceased. It is not expressly stated in the petition, but I think it may be inferred thereform, that Rachel A. Cartwright died without leaving any lineal descendants.

From recitals in the order appealed from it appears that citations, such as were prayed for in the petition, were issued by the surrogate and returned served into -the orphans court, and the order appealed from was made on motion of counsel for the executrices, after hearing them, and also counsel for the petitioners (now appellants), and counsel for some of the cited parties.

In my investigation of this important cause I have been greatly aided by the learned and exhaustive opinion of the judge of the orphans court, giving his reasons for declining to take jurisdiction of the matters presented by the proceedings, and also by the able briefs presented by the counsel of the parties to this controversy.

On the part of appellants, counsel point to the well-known distinction between probate of wills in common form and the like probate in solemn form, recognized in England by the courts there administering probate law, and the practice of those courts to permit and require a will, although once proved in common form,' to be again proved per iesies, or in solemn form, after citation or notice and opportunity for parties interested to be heard in objection, even after the lapse of a long-period, which some of the text-writers suggest extends to the length of the period of prescription. They strenuously contend that the doctrines and practice in that respect were brought to this country and conferred upon our courts which exercise jurisdiction over the probate of wills. They further contend that the applicability of the doctrine and practice in question to all our probate courts has been settled by an authoritative decision binding upon this court.

It is not contended that any trace of this doctrine, as applicable to1 our probate procedure, can be discovered in our adjudicated cases, or in the records of probate courts, until the decision of Straub's Case, 4 Dick. Ch. Rep. 264, in 1892. Before that I think I am warranted in saying that the bar in general accepted a probate in the usual form as justifying executors in proceeding to settle the estate, and to give deeds of real estate under powers conferred, to pay legacies and to distribute the residue, without any apprehension that, during a long period thereafter, when witnesses were dead and facts made difficult, if not impossible, to prove, they might be compelled, by anyone interested in avoiding the will, to reprove it.

It is to BtrauVs Case that appellants appeal, and insist it authoritatively points out and approves the practice adopted in the case now before us. That case was decided by my predecessor, Chancellor McGill, when sitting as ordinary, and this is the language in which he expressed his opinion:

“There are two methods of obtaining probate known to the practice of the English ecclesiastical courts—one in common form and the other in solemn form, or per testes. The proof is said to be in common form when the executor presents the 'will for probate in the absence of the parties in interest (to be affected by the probate), and, without citing them, proceeds, ex parte, with his proof; and it is said to be solemn form when those in interest are cited to- be present at the probation or approbation of the will. When a will is proved in common form the court, at any time within thirty years after probate, may require the executor, of its own motion or at the instance of the next of kin or other person interested, to prove the will in solemn form. 1 Wms. Ex. 334 et seq.; Waters v. Stickney, 12 Allen 4. This practice is not a hardship upon the executor, for it is within his power and a dictate of ordinary prudence in the first instance, if there be doubt as to the propriety or security of probate in common form, to seek probate in solemn form, causing those interested to be cited, and therefore to be bound by the adjudication. If it was the appellant’s design to pursue this practice in the application now reviewed, and have the will of Mr. Straub proved in solemn form, she failed. Her application should have been made to the surrogate, for it is substantially an application to reprove the will, a method of direct attack upon a probate previously had by proof in common form. Over such an application the orphans coirrt obtains its jurisdiction through the surrogate. Such jurisdiction springs from an issue suggested' in a proceeding which originates before the surrogate. (The statute does not contemplate that application for probate shall in any ease be made to the- orphans court. That court, so far at least as matters of probate are concerned, is merely the trial tribunal of issues suggested before the surrogate. The petition should not be to set aside the probate, but to reprove the will in solemn form. Such proof is denominated in the books ‘contentious business.’ It promises controversy, and, upon the presentation of a petition for it to the surrogate, a controversy would arise, and then, under our statute, it would become the duty of the surrogate to cite the parties in interest, including the executor, to appear before the orphans court, in order that the executor might there proceed, in the presence of the parties cited, if they should appear in answer to the citation, to prove the will in solemn form.”

If this opinion was essential to the decision of that ease, or was pertinent to the questions involved, I should unquestionably follow it. If not, the opinion is entitled to the respect due to the solemn utterances of the late chancellor, a careful and able judge in matters of administration.

I feel obliged to declare that the opinion in question, in respect to the course of practice permissible to require probate of a will in solemn form, was wholly unnecessary to the decision of the case, and I do not deem it binds the orphans court or the. prerogative court to approve or adopt that practice. An examination of the case shows that a will purporting to have been executed by Anthony Straub was proved before the surrogate in the usual way, and without notice to the next of kin. Ho appeal had been taken from-the surrogate’s action, but eleven months after the probate the sister of deceased applied to the orphans court to set the probate aside, on the ground that the will was the product of fraud and undue influence. The orphans court allowed an order to show cause why the prayer of the petition should not be granted, but after hearing discharged that order. From the order discharging the rule to show cause an appeal was taken to this court. The ordinary recognized that the single question presented was whether an orphans court, upon a direct application to it, could set aside a surrogate’s probate after the time limited by statute for appeal had expired. He declared that while the orphans- court has general jurisdiction over subjects prescribed by the statute of which it is the creature, the control of judgments of the surrogate was not one of those subjects, except it be accomplished through review upon appeal. His conclusion was that the orphans court rightly refused to take jurisdiction in that case. It is obvious, therefore, that what the learned ordinary declared respecting the practice of attacking before the surrogate a will previously proved by him, after the time for appeal had elapsed, was wholly obiter. The affirmance of his decree in that case by the court of errors, reported sub nom. Scharer v. Schmidt, 5 Dick. Ch. Rep. 795, is, of course, a binding adjudication only in respect to the point involved in the litigation. That the court of errors did not design to express, by such affirmance, any conclusion with respect to the practice described and the remedy declared to be admissible by the learned ordinary, is plainly to be seen from tire language of that court in Gordon v. Olds, 7 Dick. Ch. Rep. 317, to this effect: “Whether, when a will is admitted to probate in compliance with the statute, the court, of its own motion, or at the instance of the next of kin or other person interested, may require it to be proved in what is known in the English law as solemn form, and if so, by what practice and procedure and in what court such an investigation shall.be conducted, we do not decide.”

■ notwithstanding my conclusion that the opinion expressed by the ordinary in the Straub Case has not, in respect to the point now in question, the force of authority requiring the submission of this court, 3ret the deliberate^ expressed views of that learned judge carry' great weight and require careful examination before dissenting thereform.

It is to be observed that the opinion under consideration is divisible into two propositions. The first is that the distinction between the probate of a will in common form and the probate thereof in solemn form is part of the probate law of this state, and binding upon all our 'probate courts, and that 'a probate before any such court in any case where the parties in interest have not been cited to attend, or, perhaps, have not attended upon such probate, is a probate in common form, and that any such parties not cited or not attending may thereafter, for an indefinite period, require the will to be reproved in solemn form. The second proposition is that when a probate of a will is made by a surrogate, under our statute, the same surrogate, or his successor in office, has jurisdiction, upon application to him by any party in interest, to issue citations returnable into the orphans court, notwithstanding the time for appeal has passed, and that the orphans court acquires jurisdiction, by the return of such citations, to proceed to require the will to be again proved, and to hear and determine any contest that may arise thereon.

In the opinion of the orphans court in this cause the first proposition is combated. It is pointed out that in the early practice of the English courts the probate of a will in common form was granted upon a mere affidavit of the executor that he believed the paper propounded byr him was the last will and testament of the deceased, and the court thereupon simply admitted the will to probate. Under various acts of parliament and rules of court other affidavits of more extensive import were required, but there was no proof by the subscribing witness, nor was there any adjudication that the will was, in fact, the will of the deceased. A form of such a probate will be found in Brown’s “Treatise on the Principles and Practice of the Court of Probate” (page 209), revised and adapted by Mr. Powles to the practice of the high court of justice in probate business. Judge Skinner thereupon distinguished the English probate in common form from the probate by a surrogate under our statutes, on the ground that the latter was required to be allowed only after proof of the subscribing witnesses to the facts made requisite to a testamentary disposition by. our law, and that the customary order or decree thereon adjudicated that the instrument offered was the last will and testament of the deceased. From the adjudication of our courts that in allowing probate the surrogate performed a judicial function, and that his judgment was m rem, he drew the conclusion that the surrogate’s act was different from, and more than, a probate in common form, and that the English doctrine did not apply to such a probate.

I do not deem it necessary or advisable to express any opinion upon the conclusions of Judge Skinner in this regard. • I merely suggest that if, upon examination of the second proposition of the learned ordinary in the Siraub Case, a conclusion is reached that he erred in holding that a surrogate, by whom, or by whose predecessor in office, a will had»been admitted to probate without the attendance of the parties in interest, had jurisdiction to cite the parties into the orphans court, or that the orphans court thereby acquired jurisdiction to hear and determine a contest thus initiated, those circumstances would go far to maintain his conclusion that a probate thus allowed was more than a probate in common form, but was rather an adjudication, which, if not reviewed in the manner prescribed by law, became conclusive upon all parties. My reason .for • declining to- put the case on that ground arises from the state of the decisions in respect to the probate of wills in the prerogative court when allowed upon the mere proof of the subscribing witness, without citations to parties in interest.

In a celebrated case a paper-writing was presented for probate as a will to Chancellor McGill, sitting as ordinary, and it was made to appear that George P. Gordon, the alleged testator, had died domiciled in this state; that the persons named therein as executors had died; that no caveat had been filed in the county in which deceased was domiciled, and that it would be difficult, if not impossible, to ascertain what interests would be affected by probate, and who should be notified of the proceedings. Under such circumstances, it was deemed expedient by the ordinary to admit the will to probate in common form, and if contest should arise, to thereafter require solemn proof, upon such notice to parties as should be practicable or proper. The will was thus admitted to probate and administrators cum testamento annexo were appointed. Afterwards parties in interest applied to the ordinary for a reproof of the will, and, on their application, the ordinary directed the administrators to make proof of the disputed will in solemn form, after giving notice to parties interested. The order first made has been examined, and it is noticeable that there is no direct adjudication that the paper propounded was the will of deceased. There is a recital that the proofs of due execution were sufficient, and tlia-t no cause was shown to the contrary. Thereupon it was ordered that it should be admitted to probate as the will of the deceased and letters of administration should be issued thereon. In the contest that followed the ordinary found that the alleged will was a forged document, and denied probate to it, revoking the probate before granted in common form. Gordon's Case, 5 Dick. Ch. Rep. 397.

The decree thus made was brought up to the court of errors and appeals by appeal, and was there affirmed on the ground that the paper presented for probate was not tire will of Gordon, but a forgery. Gordon v. Olds, 7 Dick. Ch. Rep. 317. In respect to the practice followed in the cause, the per curiam opinion of the court pointed out that the circumstances under which the will was produced for probate before the ordinary tended to excite suspicion of its genuineness, and made it proper that it should not be admitted to probate on mere formal proof, and it was said that the ordinary, in admitting it to probate on such proof, contemplated that his order should be final only if the will stood the result of a controversy, if a contest arose. The court declared that there was no doubt of the regularity of the practice and procedure adopted.

It is observable that this conclusion of the court of errors may have been grounded either on the fact that the first probate was allowed with the express intent to permit the alleged will to be contested, if parties in interest desired to do so, or on the notion that a probate thus allowed by the ordinary was open to such a contest under the extensive powers of the prerogative court. It may result that such a probate in this court resembles, or is equivalent to, probate in common form. In this uncertainty I shall express no opinion as to the effect of a probate of a will in this court in the usual form, and deem it entirely unnecessary to do so; for the question before us does not involve the broad powers existing in this court over the probate of testamentary instruments. It relates solely to the jurisdiction conferred upon the surrogate and orphans court in cases like that now presented.

It must be conceded that the power of surrogates and orphans courts in respect to the probate of wills is only that conferred by statutes. The jurisdiction of either court in that respect must be found in the express enactment of some legislative act, or in necessary 'implication therefrom. This doctrine is elementary, and needs no citation of authorities in its support.

At the time the will in question in this cause was admitted to probate by the surrogate the power conferred on him was expressed in the provisions of section 13 of the act entitled “An act respecting the orphans court, and relating to the powers and duties of the ordinary and the orphans courts and surrogates” [Revision of 1898], approved June 14th, 1898. P. L. of 1898 p. 715. Ey those provisions jurisdiction was conferred on surrogates to take depositions to wills and to admit the same to probate and grant letters testamentaiy thereon, except in three classes of cases, viz.: (1) When doubts arise on the face of the will—i. e., on the face of the paper offered as a will; (2) when a caveat is put in against proving a will, and (3) when disputes arise respecting the execution of a will. In any of these excepted cases the surrogate is not only forbidden to act, but is expressly required to- issue citations to all- persons concerned to appear in the orphans court of the- same county, and to that court is expressly given jurisdiction to hear and determine the matters in controversy.

Under legislation of a similar, though not identical, character, this court has held that the surrogate i-s thereby invested with a judicial function and holds a statutory court, and that a grant of letters testamentary by him is a proceeding in rem, resulting in a judgment which may not be impeached collaterally, and can only be attacked by appeal. Quidort's Administrators v. Pergeaux, 3 C. E. Gr. 472. The doctrine of that case whs approved by the court of errors and appeals in Ryno’s Executors v. Ryno’s Administrators, 12 C. E. Gr. 522, and it was therein further adjudged that when a' surrogate had granted probalte óf a will the power-conferred on him.was exhausted; that his decree, until reversed, was final and conclusive; and that after a surrogate had admitted a will to probate- and issued letters testamentary thereon, his subsequent grant of letters of administration was absolutely void. ' In a subsequent case in this oo-urt, where it appeared that a will had been admitted to probate by a surrogate before the expiration of ten days from the death of the testator, it was held that the adjudication .of the surrogate, though irregular and illegal, could not be attacked in the orphans court in any other mode than by the appeal permitted by the statute. The refusal of the orphans court to set a-side the probate and revoke the letters testamentary issued thereon, upon a direct application for that relief and not by way of appeal, was approved and affirmed. In re Evans, 2 Stew. Eq. 571.

'By the provisions of section 202 of the act of 1898, above cited, the proceedings of surrogates respecting the probate of wills are expressly made subject to an appeal to the orphans court by any person interested and to proceedings thereon as if the will had not been proved, but there is a proviso that such appeal must be taken within three months after the proceedings before the surrogate, or within six months after such proceedings when the person appealing resided out of the state at the death of the testator.

The case presented to the orphans court was not brought before it by an appeal. The time for an appeal had long before elapsed. The proceedings under review commenced by an application to the surrogate more than thirteen months after the admission of the will to probate by him. It results, in my judgment, that after the surrogate had admitted the will to probate and the time for appeal had elapsed, he had exhausted his power and was without jurisdiction to cite the parties into the orphans court, and that the latter court was without jurisdiction to hear and determine any controversy respecting the probate of the will brought before it by such citations. The jurisdiction was properly refused in the court below.

It is argued that this conclusion will, or may, operate to deprive heirs or next of kin of property in the estate of a deceased person, in violation of fundamental principles, or without due process of law. This- consideration seems to me inadmissible in the case before me. If the legislation in question operates to make the decree of a surrogate admitting a will to probate a conclusive adjudication upon rights of property in the absence of an appeal, and if I should conclude that such legislation is not within the power of the legislature to enact, the result would not affect the question before me, which is, whether there has been conferred upon the orphans court power to compel the executors of a will admitted to probate by a surrogate to reprove the will in that court, after the time for appeal has elapsed and no appeal has been taken.

1 may be permitted to- make another observation in respect to •the view expressed by Chancellor McGill to the effect that the practice he deemed applicable to the probate of wills by a surrogate “is not a hardship upon the executor, for it is within his power and a dictate of ordinary prudence in the first instance, if there be doubt as to the propriety _ or security of probate in common form, to seek probate in solemn form, causing those in interest to be cited, and therefore bound by the adjudication.” In my judgment no power has been conferred upon the surrogate to issue citations requiring the parties in interest to appear before him on the probate of a will by him, and his adjudication would not be binding on such parties by reason of the issuing and service of such unauthorized citations. His power to issue citations is confined to the three classes of cases before referred to, and the effect of such citations is to transfer the jurisdiction over the probate to the orphans court. While the executor who propounds a will for probate before a surrogate may properly point out to the surrogate any doubts arising on the face of the will, the power to issue citations in that class of cases will not arise except on an adjudication of the surrogate that such doubts are raised on the face of the will. The executor propounding the will is obviously without power to file a caveat against probate, or to raise a dispute respecting the existence of a will. In re Chamberlain, L. R. 1 P. & D. 316. Such an executor cannot, therefore, require the surrogate before whom he offers the will for probate to issue citations transferring the probate to the orphans court. If the probate of the surrogate is not a probate in solemn form, the executor is powerless to make it kueh.

The order appealed from must be affirmed.


source: Caselaw Access Project

author: Mague, Okdinaey.

license: Public Domain

text:
    George C. Ward, appellant, v. S. Thomas Wilcox, executor, et al., respondents.
    [Submitted March 18th, 1902.
    Filed May 9th, 1902.]
    1. In a contest before an orphans court respecting a paper-writing propounded for probate as the last will and testament of a deceased person, that court is not bound to deny probate because the proponent has not produced and examined both of the subscribing witnesses thereto, or accounted for his inability to do so, by legal evidence. If the one subscribing witness called and examined completely establishes the due execution thereof as a will, and there is no contradictory evidence, the court may admit the will to probate thereon, and its decree will not be reversed.
    2. The instrument offered for probate was shown by the evidence to be in the handwriting of testatrix. Upon inspection there is disclosed a manifest alteration, which is unnoted. The alteration was made by the erasure of- a word in one of the bequests and by writing thereon the word “ten,” which is also shown to be in the handwriting of the testatrix.— Held, that assuming such apparent and unnoted alteration raises a presumption that it was made after execution, such presumption may be overcome by competent and sufficient evidence that it was made before execution ; held, further, that statements of testatrix made shortly before the execution are admissible in evidence in respect thereto.
    3. The instrument in question was drafted by a family friend and legal adviser of deceased, from instructions given, by her. A type-written copy was sent to her, and, as arranged, she copied it in her own handwriting. As so written by her, the bequest was of the sum of $2,500. When her legal adviser attended to witness the execution, she informed him that she had increased the amount of that bequest, and gave reasons for so doing, which might have operated to. induce an increase. An inspection of the paper does not justify any inference of a second obliteration or erasure.
      •—Held, that the evidence is sufficient to overcome any presumption that the alteration was made after execution-, and to establish that the paper-writing was, at the time of the execution thereof, in the same condition that it was when offered for probate.
    On appeal from a decree of the- Essex county orphans court admitting to- probate a paper-writing as the last will and testament of Anna B. Ward, deceased.

      Mr. Albert G. Pedriclc and Mr. Elvin W. Grane, for the appellant.

      Mr. Francis Child and Messrs. Guild, Lum & Tamblyn, for the respondents.
   Mague, Okdinaey.

From the opinion delivered in the orphans court in disposing of this cause it appears that appellant, who was a caveator against the probate, claimed that the proofs before the court established that the alleged testatrix was wanting in testamentary capacity at the time she executed the writing in question, notwithstanding the brief submitted in this court is silent upon that claim, I have deemed it my duty to- carefully review the evidence. The result of my examination has been to lead me to- an entire concurrence with the conclusion of the orphans court—that Miss Ward possessed testamentary capacity, and that the instrument executed by her cannot be denied probate on that ground.

In the brief before me reliance for the reversal of the decree appealed from is placed upon two- grounds, which I will now consider.

The first ground is expressed in these words:

“Because but one of the subscribing witnesses was called and sworn to prove the will, whereas it was- the duty of the respondents to produce and call both witnesses to the will, or else account for their inability to do so by legal evidence.”

The paper-writing in question discloses that there were two witnesses to its execution, viz., William B. Guild, Esq., and Miss Laura M. Jenkins. The first was called and examined as a witness, the second was not called nor examined. Nor was it made to appear that she had been subpoenaed or required to attend as a witness. As if to account therefor, the proponents presented to- the court and had marked as an exhibit and entered upon the notes of the trial two certificates, made at different times while the matter was proceeding, the last date being on the day the evidence was closed. They purported1 to have been made by a physician, who certified that he was attending Miss Jenkins for a serious disease, and that, in his opinion, she was not able to appear as a witness. While it seems to have been admitted that the witness was residing in Newark, there was-no other proof offered of her inability to testify.

As the certificates possessed no probative ’force whatever, it is obvious that the inability of the witness to.be examined was not made out by legal evidence, and if the proposition of appellant correctly states the rule of duty of proponents, they were derelict.

Since, however, the caveator could have called the witness and examined her, and probably the court, of its own motion, could' have done so, whether the dereliction of duty on the part of the proponents would have justified a rejection of the will, if its due execution had been completely established by the evidence of the other witness who was examined, would be open to question.

But I do not think the proposition maintained by appellant correctly states the rule of law upon the subject. In my judgment there is no-hard and fast rule requiring a proponent of a will under an ordinary caveat to produce before the orphans court all the witnesses 'to the alleged will, or show, by legal evidence, that he was unable to do so.

When the court of chancery was called upon to establish a will, spoliation of which was charged, Chancellor Pennington laid down the rule that all the witnesses thereto,'if within the power of the court, must be examined. But he qualified the rule in that case by the statement that if the witnesses be dead or insane, or without the jurisdiction of the court, the will might be established without their evidence.

But the case of a spoliated will, the contents of which must be built up, as it were, from the recollection of witnesses, differs very materially from a case in the orphans court under a caveat against admitting to probate a paper actually existing and propounded for probate. There has been conferred on that court jurisdiction to determine whether the paper propounded is a will—i. e., a paper executed with the formalities required by the statute by a person capable of making it. The burden of proof devolves, of course, upon the proponent. When he presents proof sufficient to.justify the court in finding that the paper was duly executed, he may rest his case. If he presents such sufficient proof, the court may act upon it, unless it is met and overcome by counter proof. The same ordinary, in Whitenack v. Stryker, 1 Gr. Ch. 15, declared that it was not indispensable that one propounding a will for probate should produce all the witnesses, provided those produced prove its due and legal execution.

It must be conceded that such has been the practice in these cases, and there is no trace, in any of the serious litigations upon the existence of wills, of a contrary rule, such as is now claimed to be the true rule. Surrogates, when no caveat is filed, admit wills to probate on clear proof by one witness. Contests initiated by caveats have been constant, yet no such rule has been applied. See Snedeker v. Allen, 1 Penn. 32; Den v. Mitton, 7 Halst. 70; Den v. Matlack, 2 Harr. 86.

The evidence of Mr. Guild was not only complete in the proof of due execution and of testamentary capacity, but he also proved that Miss Jenkins signed her name in his presence, appending it to an attestation clause which averred -the performance of all the acts requisite to due execution. If she were dead or insane, or out of the jurisdiction, such proof would be considered as establishing her averment of regular execution.

The decree cannot be disturbed on this ground.

The remaining contention in favor of reversal of the decree appealed from is that the orphans court erred in admitting to probate the paper-writing in. question, because an inspection thereof disclosed an evident alteration therein, which must be presumed to have been made after its execution, and that such presumption, liad not been overcome by competent and sufficient evidence.

If this contention can be successfully maintained, it will be open to question whether the decree should be wholly reversed and the whole instrument should be denied probate, or whether the decree should be modified so as to admit to probate all the instrument propounded except the clause in which the alteration appears. On this point no argument has been made, and no opinion need be expressed.

With respect to the fact upon which this contention is grounded, I have carefully inspected the disputed paper, which, the evidence shows, was written by Miss Ward. This inspection leads me to the same conclusion which the judge of the orphans court arrived at, viz., that, in the bequest expressed in these words, “I give to my faithful maid Lizzie Dow the sum of ten thousand five hundred dollars,” the word “ten” is written over an erasure, the marks of which are plainly visible, and which has diminished the thickness of the paper. There are some indications that the word “thousand” has been retraced without erasure. What word was erased from the space now occupied by “ten” -is not apparent on inspection, but the uncontradicted evidence, as will hereafter be shown, discloses that the word “two” was once there. By comparison of the handwriting of the paper with the word “ten,”’ it may be fairly concluded that that word was written by Miss Ward; and Mr. Guild, who was familiar with her writing, expresses, in his evidence, the opinion that “ten” is in her handwriting.

With respect to written instruments upon which actions at law are maintained, it is settled in this state that there is no presumption of law that an alteration apparent on the face thereof was made after execution, but that it is a question for the jury to settle whether the alteration was made before or after execution. Den v. Wright, 2 Halst. 175; Cumberland Bank v. Hall, 1 Halst. 215; North River Co. v. Shrewsbury Church, 2 Zab. 424; Hunt v. Gray, 6 Vr. 227; Jones v. Crowley, 28 Vr. 222.

In North River Co. v. Shrewsbury Church, ubi supra, it is declared that the presumption is that such an alteration was made before execution. When equity is asked to decree the amendment of a written instrument on the ground of a fraudulent alteration after execution, proof is required that the alteration was subsequent to execution. Putnam v. Clark, 6 Stew. Eq. 338.

By the provisions of section 21 of the English Wills act (1 Vict. c. 26) it is provided that no obliteration, interlineation or other alteration made in any will after execution shall have any effect, except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration .shall be executed in like manner as is required for the execution of the will, and the manner in which this may be done is particularly set forth in that section. In eases arising upon wills made before as well as after the adoption of that act, the English courts held that where alterations are apparent upon the face of the will the presumption is that they were made after execution. A distinction is made between such alterations in wills and in other documents, on the ground that an alteration of the latter after execution involves either fraud or crime, and no presumption of either can be made, while a testator may alter his will at his pleasure, without committing either fraud or crime. Doe, Shalicross v. Palmer, 16 Q. B. 747; Cooper v. Bockett, 4 Moo. P. C. C. 419; Greville v. Tylee, 7 Moo. P. C. C. 320; Doe, Tatner v. Catomore, 16 Q. B. 745.

Counsel for appellant have not cited to me any American cases upon the subject of the presumption in respect to alterations apparent on the face of a will when offered for probate or relied on for relief. I have not deemed it necessary to spend time in examining our authorities. Text witness seem to agree that the presumption is of an alteration after execution. Schoul. Wills 435; Underh. Wills. 268; Page Wills 431, 432; Tayl. Ev. 180, 968; 1 Jarm. Wills ( R. & T.) 304. The common practice to note, at the foot of a will about to be executed, any alteration, in such a manner as that the execution by the testator and the attestation by the witnesses may include and recognize them as theretofore made, will, I think, justify a presumption that unnoted and umattested alterations were made after execution. So I shall assume, without deciding, that, upon the production of the paper in dispute before the court, with a plainly apparent alteration, a presumption was at once raised that such alteration had been made by Miss Ward after its execution, hior do I deem it necessary to decide what effect would have been produced if such presumption had been left unrebutted.

That such a presumption as I have assumed may be overcome and rebutted by competent and sufficient evidence justifying the conclusion that the apparent alteration did, in fact, exist at the time of the execution of the paper, is in accord with reason and the authorities above cited.

The evidence before the orphans court established, in my judgment, the following facts: Mr. Guild, one of the witnesses to the paper in dispute, was requested by Miss Ward to prepare a will for her. She gave him instructions for its preparation, and it was arranged between them that he should prepare the will and send her 'a typewritten copy thereof. Mr. Guild preferred not to have a typewritten will, and the arrangement was that Miss Ward should copy, in her own handwriting, the typewritten draft which Mr. Guild was to send her, and ihat Mr. Guild should attend on the following morning for the execution of the will. One of the instructions given to Mr. Guild was for a bequest to a maid of Miss Ward, named Lizzie Dow, for $2,500, and the typewritten draft contained such a bequest. The next morning Mr. Guild went to the house of Miss Ward and found that no other witness was in attendance, so that the execution of the will was postponed, and he arranged with Miss Ward that he would attend on the next morning. He, however, examined the copy of the will which had been made by Miss Ward, according to the arrangement, and was in her own handwriting, with which Mr. Guild was entirely familiar. He found it to be a correct copy of the typewritten draft. He had been the lifelong friend and legal adviser of Miss Ward’s father, and had drawn his will. He had known Miss Ward from early childhood, and had frequently seen her, having been a constant visitor at her father’s house. The next day Mr. Guild attended, according to the arrangement, and another witness was present, a Miss Jenkins. Miss Ward requested Mr. Guild to accompany her to another room, and there told him that since he had been there on the previous day she had had a talk with her father with regard to the provision made by her for Lizzie, and that she had added to that provision. Mr. Guild told her that, in his opinion, she had done pretty well for Lizzie before any addition, and she replied that the matter had been talked over between her father and 'herself, and that when he made his will Mr. Guild knew that he then requested her to provide for Lizzie, and that both her father and herself felt that she had been faithful and kind, and both her father and she believed that she and Lizzie would continue to live together during their joint lives. Mr. Guild did not examine the will, nor ascertain what the increased amount was, nor how the increase was indicated. He did not take the precaution to examine and note the alteration, as he might well have done, for greater accuracy. But if he be believed, the testatrix announced-that she had increased the bequest to Lizzie above that which had been contained in the draft of the will which he had examined. It was not necessary for Miss Ward to explain to Mr. Guild the reasons which induced the increase, nor ought the court to inquire with respect to the reasons inducing the will of a proposing testatrix, because every person competent to make a will may do with his property what he desires to do. But where a bequest, of the character of the one now in question, is increased by so large a sum, it is not incompetent or improper to consider the motives that may have induced the testatrix to make the increased bequest. Miss Ward proceeded, at the same interview, to give further reasons operating upon her mind, arising from the fact that her sister’s children, who were provided for by the will, were well cared for, and her brother had no children, so that she felt that she might increase the legacy to the faithful maid to an amount which she thought proper to give her. . .

Upon these facts I think it a necessary deduction that, at the time of her conversation with Mr. Guild, the bequest of $2,500 to Lizzie Dow, which Mr. Guild had seen in the draft of the will, had been increased, and that by her. The scrutiny of the will forbids any notion that there have been two alterations and erasures in the. clause. The erasure consisted in the complete obliteration of the previously written “two,” and there was superinduced, in Miss Ward’s handwriting, the “ten.” Any subsequent erasure upon which the writing has- been made would be unmistakably indicated.- Under these circumstances I deem it proved that when the paper was executed a few minutes after, it was in the condition in which it now is, and contained the bequest to Lizzie Dow for $10,500.

It is contended that Mr. Guild’s recollection of the occurrence, to which he testified with great clearness, may not be relied on. The claim is that, upon being confronted with the will shortly after the death of Miss Ward, he made statements variant from the testimony, and declared that he did not know the contents of the will, having made the draft and left the bequests in blank.

The account of this interview comes from the caveator and one Mr. Doughty, who accompanied him to Mr. Guild’s office. Mr. Guild repudiates the statement then said to have been made by him. I have no hesitation in saying that the alleged variance between Mr. Guild’s statements and his words as testified to 'by the caveator and Mr. Doughty does not in the least shake my reliance upon Mr. Guild’s sworn testimony, given after an opportunity to refresh his memory and to recall what had really happened. Such a variance may be well explained by the different impression produced upon the witnesses by the statement actually made. If, as they say, the conversation was confined to the bequest made to Lizzie Dow, Mr. Guild may have stated that he did not know what the amount of that bequest was, which statement is in entire agreement with his testimony, and that statement may have been misunderstood.

The statements of Miss Ward, testified to by Mr. Guild, are, in my judgment, competent evidence on the question when the alteration in the paper was, in fact, made. If they had been observations to Mr. Guild after the execution of the paper, I think they would have been inadmissible, but statements made at the time of the -execution, or within a reasonable time prior thereto, in my judgment, are competent as tending to fix the fact of an alteration, and, in this case, the fact that it increased the legacy to a particular person.

The result is that the decree should be affirmed.


author: Magie, Okdinaky.

text:
    In the matter of the estate of Eva Russell, deceased.
    [Filed October 28th, 1902.]
    1. The provisions of section 29 of the Orphans Court act of 1898 confer jurisdiction upon the surrogate over the grant of letters of administration on the estate of persons who have died non-residents of this state. A contest over the right of administration will not oust his jurisdiction or confer jurisdiction in the first instance, on the orphans court, as in the case of deceased residents of the state, under the provisions of section 26 of that act.
    2. The foreign residence ,of a decedent at death is a jurisdictional fact, .essential to the jurisdiction of the surrogate under section 29. If persons in interest deny the foreign residence and assert a residence in this state, the surrogate is impliedly authorized to determine the residence, subject to an appeal to the orphans court under section 201 of that act.
    3. The residence of an- infant born in New Jersey, of parents resident here, is presumed to continue a residence in this state, until proof is adduced that it has been lawfully changed. The infant’s residence will follow that of the father while he is living. After the father’s death, it will, in general, follow that of the mother. The residence of an infant existing in this state at the death of the father will not be shown to be changed, by proof that the mother afterward took the infant with her to a foreign state, unless it appears that the change of abode was the intent, on the part of the mother, to abandon the residence in New Jersey, and acquire residence in the foreign state, ammo manendi.

    On appeal from a decree of the Cumberland county orphans court, made March 31st, 1902, appointing Howard Carrow administrator of the estate of Eva Russell, deceased.

      Mr. Walter H. .Bacon, for the appellants.

      Mr. Howard Carrow, pro se.

   Magie, Okdinaky.

The transcript discloses that the decree appealed from was made by the orphans court under the following circumstances: On February 17th, 1902, Howard Carrow presented to the surrogate of Cumberland county a petition averring that on October 25th, 1901, Eva Russell, an infant of the age of twelve years, had died intestate, in the city of Philadelphia, in the .State of Pennsylvania, being then an inhabitant and resident of that state; that the deceased possessed no estate, except the sum of $10,000 bequeathed to her by her grandfather, who died in Cumberland county, and that her said legacy was in the possession of the Cumberland Trust Company, which was her guardian; that, under the law of Pennsylvania, Mary Russell, mother of the said deceased, was the sole beneficiary and distributee of the estate of the deceased and entitled to administer upon such estate, but that she had renounced such right of administration in favor of petitioner; and that thereafter, on December 31st, 1901, upon his said application, the register of wills in Philadelphia had granted to petitioner letters of administration upon the estate of the deceased infant, exemplified copies of the proceedings in Philadelphia being appended to the petition. Petitioner thereupon prayed that administration of the estate of the deceased should be granted by 'the surrogate of Cumberland county, by ancillary letters or such other letters as should be proper.

On February 20th, 190Í?, the Cumberland Trust Company, as guardian of Florence S. Russell and Goldie Russell, minors and sisters and next of kin of Eva Russell, deceased, presented to the surrogate a caveat against his granting letters of administration to Howard Carrow upon the estate of the deceased until his right and claim should be determined by the orphans court of Cumberland county.

The transcript does not contain any citations, but it appears thereby that on March 3d, 1902, the orphans court, on motion of counsel appearing for the caveators, made a rule reciting that the citations had been returned, and fixing a day for hearing the matter.

The court thereafter took the testimony of witnesses, and thereupon made the decree complained of.

The first question presented for consideration relates to the jurisdiction of the orphans court to make the decree complained of under the circumstances appearing before it.

If the application to the surrogate had been for letters of administration upon the estate of a deceased person who was a resident of his county at the time of his death, the surrogate was empowered to grant such letters; but if a caveat had been put in before him, such as appears in this case, his jurisdiction would have been limited to the issuing of citations returnable into the orphans court, to which court jurisdiction of the matter is expressly granted, for such a caveat would raise a dispute as to the administration, and, by the provisions of section 26 of the act entitled “An act respecting the orphans courts, and relating to the powers and duties of the ordinary and the orphans courts and surrogates” [Revision of 1898], approved June 14th, 1898, the orphans court is to hear and determine a controversy of that nature. P. L. of 1898 p. 715.

By the provisions of section 2 of the act above cited tjje jurisdiction conferred on the orphans court to hear and determine controversies respecting administration is limited to cases “'as hereinafter directed.” It does not admit of doubt that the jurisdiction of the orphans court does not arise in respect to the right of administration except upon a dispute appearing, which ousts the surrogate of his jurisdiction, and^ponfers it upon that court.

By the provisions of section 29 of the same act authority is conferred upon the surrogate of a county to issue letters of administration upon the estate of a deceased person who died, not a resident of this state, but possessed of personal property within said county, upon application and proofs, to the surrogate’s satisfaction, that the decedent died intestate. The requirement is that such letters shall issue to the administrator of the decedent, or to any person who would be entitled to administration in case decedent had resided in this state at the time of his death. If application is made by anyone not an administrator of decedent, the letters are only to be granted upon such notice to the administrator as the surrogate may prescribe.

It is to be noted that there is no provision in this section empowering the surrogate, upon such application, in case the right of administration is disputed, to issue citations to the parties interested, returnable into the orphans court, and thereupon conferring upon that court jurisdiction to hear and determine the controversy thus raised, such as is contained in section 26, relating to administration upon the estates of deceased residents of this state.

Before the revision of 1898 the grant of administration on the estate of a deceased non-resident was.given by the provisions of section 29 to 31 of the Orphans Court act of March 27th, 1874 (Rev. Stat. of 1874 p. 500), and the amendment to section 29, embraced in a supplement of February 9th, 1880. Gen. Stat. p. 2400. By section 30 authority was given to the ordinary or a surrogate to grant letters of administration on the estate of a deceased person who did not reside in the state at the time of his death whenever it was necessary or desirable to do so, and whenever a rule to show cause why such letters should not be granted was shown to the surrogate to have been published as required by him. This act did not provide for the issuing of citations in the case of a dispute’ as to the right of administration, nor did it confer any jurisdiction upon the orphans court.

In Plume, Administrator, v. Howard Savings Institution, 17 Vr. 211, the action was to recover from the savings institution a deposit made by one McMahon, of whom the plaintiff, Plume, had been appointed administrator by the orphans court of Essex county, upon proof that McMahon had been absent from the state and not heard from for the period of seven years, so that the presumption of his death had been created by the statute. The decree of the orphans court was held by the supreme court to be incapable of being called into question in a collateral proceeding, it appearing that it was made upon proofs presenting to the orphans court a colorable case of the decease of McMahon and as to his residence. The ease discloses that the proceeding for the appointment of an administrator had been initiated by a petition for administration, addressed to the surrogate of Essex county, and that the surrogate had ordered a rule to show cause why the application should not be granted, returnable before the orphans court, and that the orphans court proceeded thereon to hear and determine the matter. The elaborate briefs of counsel indicate that, among other matters presented, it was contended that the orphans court of Essex county was without jurisdiction to act, because the last place of residence of McMahon in this state was shown to have been in another county, and also that it was equally without jurisdiction if the proofs showed that McMahon had died, or was presumed to have died, when a nonresident of this state. Upon these contentions, Chief-Justice Beasley, speaking for the court, said: “In the present case there was plainly some proof of the death of the supposed intestate, and likewise of the fact that he was not, at the time of his decease, a resident of this state, and therefore, even if the court fell into error, which I do not intend to indicate, such error might have led, in a proper course of law, to a reversal of the judgment, but it can have no bearing against the right of the court to adjudicate upon the facts before it.” In another part of the opinion he uses the following language: “And with respect to the present inquiry, it matters not at all whether the clause of the statute-that regulates the proceedings on applications for authority to administer the estates of non-resident decedents was rightly construed by the orphans court, inasmuch if an error exists in that particular, it cannot be corrected except in a direct appellate review.” It is therefrom obvious that the decision in that case in no respect involves the question here presented, where there is an application to review a decree of the orphans court, jurisdiction to make which is directly challenged by the appeal.

The orphans court is not a court of general, but of limited, jurisdiction, which is confined to such matters as the statute either expressly or by clear implication has conferred jurisdiction over.

When the statute expressly provides, in respect to applications for administration upon the estates of deceased persons who, at their death, were residents in this state, a particular course of practice, and, by express words, grants jurisdiction to the orphans court, and, in the same connection, gives authority to a surrogate, in respect to applications for administration upon the estates of deceased persons who were not, at their death, residents of this state, and refrains from giving any authority to the orphans court to deal with such an application, I think it is clear that there can be no implication that authority has been conferred upon that court in the latter class of cases. The former class are within the provisions of section 2, because of the directions contained in section 26; the latter class do not fall within the provisions of section 2, because there is no direction respecting controversies in cases of that class.

It results, in my judgment, that the decree appealed from was not within the jurisdiction of the orphans court.

This result, in my judgment, does .not prevent a contest respecting the right of an applicant to obtain letters of administration from the surrogate upon such a petition as was presented in this case, when the contest is grounded, as here, upon an allegation that the deceased was not, at death, a resident of the foreign state in which letters of administration had been granted, but was, in fact, a resident of this state.

The caveator, before the surrogate, was shown to have been duly appointed the guardian of the persons and. property of two infant sisters of the deceased child. If, at the time of her death, the decedent was a resident of New Jersey, and her mother renounced the right of administration on her estate, upon a proper application, administration would have been granted to a proper person for said infants, durante minore aetate. Moreover, if the decedent 'was resident here at the time of her death, her sisters would be entitled to distributive shares of her estate, while the petition asserts that in the state in which letters were issued the mother becomes entitled to the whole of the estate of the decedent. It is obvious that the interest of the infant sisters of the decedent was involved in, and might be prejudiced by, the action of the surrogate upon the petition.

It is not supposable that in this, and, perhaps, other cases of similar nature, the legislature intended to omit to provide an opportunity for a contest involving such interests. While no express authority is given by the act to the orphans court to determine such a contest in the first instance, and I have not been able to find sufficient implication of authority in that court to proceed by the course specially provided under section 26, yet I think there is a clear implication that such a contest may be heard and determined in the first instance by the surrogate. For while section 29 expressly declares that, upon application and proof that the deceased died intestate, the surrogate shall issue letters, yet it is clear that the fact of the non-residence of the decedent is jurisdictional. The authority conferred is to issue letters only on the estate of a non-resident. A contest as to residence may, therefore, be raised before the surrogate, which he must determine before acting. From this determination an appeal to the orphans court will at least lie in favor of any person aggrieved, under the provisions of section 201 of the same act.

Eespondent urges that appellant may not object to the jurisdiction of the orphans court in this case, because, by its caveat, it invoked that court to exercise such jurisdiction. But if jurisdiction to act in the first instance had not been conferred on that court, the consent of appellant would not confer it. Nor does it seem to me that the jurisdiction to hear and determine such a controversy on appeal will justify the appellate court in acting, not by appeal, but in the first instance.

If I Avas of a different opinion, I should be unable to conclude that there was jurisdiction to issue the letters in question, because, upon the evidence, I think the deceased child was shown to have been, at death, a resident of New Jersey. It was made to appear that she Avas born in Hew Jersey, on Hovember 10th, 1889, of parents then resident here. What the books call her domicile of origin was in Hew Jersey. Domicile thus acquired continues until there is proof made that it has been actually changed. A minor may not change the domicile, at least before emancipation. Blumenthal v. Tannenhole, 4 Stew. Eq. 194. As decedent died before she attained the age of twelve years, and Avhile remaining in the charge of her mother, it is clear that she had not been emancipated. The domicile of the infant follows that of its father during the lifetime of the father. Jac. Law Dom. § 235. Decedent’s father remained a resident of HeAV Jersey until his death, in 1892.

After the death of a father the domicile of an unemancipated infant, in general, folloAvs that of the mother. Jac. Law Dom. § 238; Johnston v. Beattie, 10 Cl. & F. 42; Sharpe v. Crispin, L. R. 1 P. & D. 611; Lamar v. Micou, 112 U. S. 452; Dedham v. Natick, 16 Mass. 135; Brown v. Lynch, 2 Bradf. 214.

Whether the domicile of an infant may be changed by the mother with intent to benefit herself thereby; whether the change of domicile is constructively fraudulent when it benefits the mother in succession to the infant’s éstate; or whether such a change will deprive the mother of the right of administration, or only prevent an improper distribution of the infant’s estate, are questions on which authorities are not in entire accord. Jac. Law Dom. § 242 et seq. They are questions not necessary to be settled on this appeal.

Hor is it necessary to settle herein whether- the mother may, after the father’s death, change the domicile of an infant, Avithout the consent, or against the objection, of a duly-appointed guardian of the infant’s person.

I have assumed, for the purposes of this case, that the mother had a complete right to change the domicile of the infant. Such a change, however, could only he effected by the mother’s changing her own domicile, for the infant’s domicile follows that of the parent. The question, then, is whether the evidence shows a change of domicile of the mother from New Jersey to Pennsylvania. The infant’s father died in Cumberland county in 1892, and his widow, the mother of decedent, continued to live in that county, with her children, until some time in the year 1898, when they went to Camden, in this state,, and continued to live there until February, 1899. They then went to Philadelphia, and lived, in three different places, in that city until May, 1900. There is not a syllable of evidence that the mother took her residence in Philadelphia, animo manendi. If the evidence justified any inference on that subject or to that effect, it is negatived by the fact that, in May, 1900, she returned, with her children, to New Jersey, and continued to live there until March, 1901. If a like inference could be drawn from the evidence, the domicile of the mother, and consequently that of the infant, was resumed in New Jersey.

In March, 1901, the mother, with her children, went to Philadelphia, and continued to live there until the death of the decedent, in October of that year. Was that change of residence a change of domicile ? To make it such it must appear that there was, on the part of the mother, an animus manendi. Harral v. Harral, 12 Stew. Eq. 279; Firth v. Firth, 5 Dick. Ch. Rep. 137; Hervey v. Hervey, 11 Dick. Ch. Rep. 166; S. C., 11 Dick. Ch. Rep. 424. On the question of her intent there is absolutely no direct evidence, and the circumstances proved do not, in my judgment, justify any inference that her purpose in going to Philadelphia was to make it her permanent home. Her previous return to New Jersey rather justifies a contrary inference.

If, therefore, this appeal brings in question the conclusion of the orphans court on the merits of the case, I think it is not supported by the evidence.

The order appealed from must be reversed.-


author: Magie, Ordinary.

text:
    In the matter of the account of Albert A. Wilcox, guardian of James Robertson, a minor, deceased.
    [Filed January 27th, 1903.]
    A testator, by his will, devised and bequeathed to six of his children, by name, all the residue of his estate expressly excluding one child, who had been previously provided for. A child was born to testator after-wards, and there was no provision in the will disinheriting an after-born child. The executors of the will paid to the guardian of one of the children his share of the residuum. The ward died while under age and without issue. The guardian having settled his account in the orphans court, was directed by that court to pay the amount remaining in his hands to seven of testator’s children, including among them the child excluded by the provisions of the residuary clause, and the after-born child. The appeal from the order of distribution did not question the jurisdiction of the orphans court to make the order, but only claimed that it was erroneous in including in its terms the excluded child and the after-born child.—Held, (1) that the order cannot be supported on-the ground that the distributees were the heirs-at-law and next of kin of the deceased infant, because, by the residuary clause, the interest of the infant, who died an infant and without issue, was thereby divested, and became vested in the survivors of the children therein named; (2) that the order was erroneous in including the child who had been excluded by the residuary disposition, on the ground that she was not, on a proper construction of that clause, one of the survivors intended.by testator; (3) that the order was also erroneous in including the after-born child, on the ground that it must be presumed that she received her share of the testator’s estate under the statute, before the executors distributed and paid over the shares of the other children.
    The fifth, item of the will of John Robertson, dated October 22d, 1891, was expressed in these words:. .

      “Fifth. All thé rest, residue and remainder of my estate, whether real or personal, and wheresoever situate, I give, devise and bequeath in equal portions, share and share alike, to my children, Matilda Robertson, Annie Robertson, James Robertson, John Robertson, Clarence Robertson and Leonard Robertson (my daughter, Marne Brickman, wife of Frederick Brickman, having been provided for during my lifetime, it is my will that she shall not have any further portion of m/estate) to have and to hold to them, their heirs and assigns forever, the share or portion of any deceased child or children, dying without issue under twenty-one years of age to be divided equally among the survivors, and the issue of any deceased child or children to take his, her or their parent’s share whether said parent or parents shall have arrived at the age of twenty-one years or not.”

      Mr. James G. Blauvelt, proctor of the appellants.

      Mr. Francis Scott, proctor of Matilda Miller and Annie Hawkins.

      Mr. Wood McKee, proctor of Mame Brickman and Sarah Robertson.
   Magie, Ordinary.

The appeal -in this cause is from an order of distribution made on the 20th day of December, 3901, by the orphans court of Passaic county. The order recited that the account of Albert A. Wilcox, as guardian of James Robertson, a minor, deceased, had been passed and allowed by that court June 28th, 1900, and it directed that the balance in the hands of the guardian, appearing by that account (after payment of costs and certain counsel fees), should be distributed, in equal sums, to the minor’s half-sister, Marne Brickman; his sisters Matilda Miller and Annie Hawkins, and his half-brothers and sister, Clarence Robertson, Leonard Robertson, John Robertson and Sarah Robertson, one-seventh to each.

The appellants are Wilcox, the guardian of the deceased minor, James Robertson; John Robertson, Clarence Robertson and Leonard Robertson, three infants, who appearéd by said Wilcox, as their guardian, and James A. Graham and Emmons Fullerton, who are the surviving executors of John Robertson, deceased.

The appellants have not contested the jurisdiction of the orphans court to make the order of distribution in question. They only, claim that the order was erroneous in including among those entitled to distribution Marne Brickman and Sarah Robertson, who is also called Sarah J. Fullerton. The petition of appeal asserts that the fund in question should be divided between Matilda Miller, Annie Hawkins, Clarence Robertson, Leonard Robertson and John Robertson, one-fifth to each.

The order of distribution cannot be sustained on the theory upon which the orphans court seems to have put it. The order declares that the parties to whom distribution is directed therein take the fund as heirs-at-law and next of kin.of the intestate minor*. Moneys in the hands of a guardian of a minor at his death do not pass to the heirs-at-law or next of kin, but to the representative of the minor* As the minor is incapable of making a valid testamentary disposition, the representative is necessarily an administrator. To him the guardian may safely pay the funds in his hands. After administration, what remains may then be distributed to those.to whom'.the fund goes.

The order cannot be supported in its entirety unless the interest of James Robertson under the will was either not vested in him, or was, although originally vested, afterwards divested by the admitted fact that he died before he attained the age of twenty-one years and without issue.

That the provisions in the fifth .item of the will, set forth in the prefatory statement, when properly construed, vested in James the share of the residue thereby disposed, will not support the order, if, by a consideration of the whole of those provisions, he was afterward divested of his interest upon the happening of the contingency specified.

The consideration of the language of the fifth item of the will leads me to the conclusion that the share allotted thereby to James became vested in him upon the death of the testator; but I think it equally clear that the testator intended that, upon the death of any of the children to whom a share was given by that item occurring under the age of twenty-one years and without issue, the share would be otherwise disposed of. Upon the happening of the double contingenejq death without issue and under twenty-one years of age, the share was thereby divested in favor of such other of the children named in that item as fell within the description, of survivors. The case is within the well-settled doctrines of our own cases. Nevison v. Taylor, 3 Halst. 43; Van Houten v. Pennington, 4 Halst. Ch. 745; Crane v. Bolles, 4 Dick. Ch. Rep. 373.

ISTor is there any ground for the contention that the lijnitation over was restricted by the contingency of death, without issue, under twenty-one years, 'before the death of the testator. At the execution of the will James and other of the children were infants. He 'was malting a testamentary disposition in contemplation-of his death. It must have been within his contemplation that his infant children might not attain the age of 'twenty-one years before he died. The period fixed must, therefore, be the attaining of that age, whenever that might happen. Van Houten v. Pennington, ubi supra.

This construction is strengthened and made conspicuously clear by the last clause of the item in question. The construction of that clause, in all its possible applications, is not drawn in question, but it plainly evinces the intention of the testator that, in the event of the death of any child under twenty-one years of age, leaving issue, such issue should become immediately vested with its parent’s share, thus providing for the happening of one event of the double contingency previously dealt with.

It results that, on the death of James, the share passed by the will of his father, and the question is to whom it passed.

The sole contest raised by the appellants is to the right of Mame Brickman and Sarah J. Fullerton to any portion of the share.

The case discloses that Sarah J. Fullerton was a daughter of the testator, born to him after the execution of his will. At that time the testator had children. An examination of the will shows that.it contains no provisions for the disinheriting of after-born children. If there was no settlement upon, such after-born child, she became entitled to such portion of the parent’s ■estate as she would have been entitled to if the parent had died intestate. Gen. Stat. p. 3760 pl. 19. The contribution required from devisees and legatees to make up the interest of such after-born child does not disturb the provisions of the will-in other respects. Wilson v. Fritts, 5 Stew. Eq. 59; Van Wickle v. Van Wickle, 14 Dick. Ch. Rep. 317.

The ease does not disclose how, or to what extent, Sarah J. Fullerton, the after-born child of John Robertson, has acquired the interest in her father’s estate which devolved upon her under the act. But it is clear that she cannot enforce any claim upon, the estate of the deceased infant in the accounting by Wilcox as guardian. It must be presumed that the fund the excutors paid to the guardian represented James’ share of the estate of his father, after the after-born child.' had been provided for under the law. They could administer and pay over no more, for'the will did not operate upon any of the estate of testator except what was left after satisfying the claims of the after-born child as heir-at-law and next of kin.

The order was clearly erroneous in including Sarah J. Puller-ton as entitled to one portion of the fund in question.

The further contention is that the order was erroneous in including Marne Brickman as entitled to a portion of the fund. On her part it is argued that, as she is named in the fifth item of John Robertson’s will, although no share is thereby given to her, the word “survivors” used by testator to express those to whom a share, the title to which became divested by the contingent limitation, should go, includes her. But I cannot assent .to this contention. The provision is designed to dispose of a share previously bequeathed and devised. It cannot be construed to relate to the property which testator states he had previously given to Marne Brickman. The provision that, under a certain contingency, the share should go to issue, clearly shows that the testator’s purpose was to provide for the shares that are given by that item. There is no language in the item capable of applying to the portion of testator’s estate which had been previously given to Marne Brickman, and the testator could not, if he desired, impose any condition upon the portion thus previously given. It results that the survivors intended are those to whom the shares were thereby given, and the order was erroneous in including Marne Brickman as a distributee.

No attention has been paid to the question whether a guardian can .properly pay the share thus limited over to the parties to whom it is limited directly, or whether the fund should first go to the executors of the testator and be distributed by them. No objection to a distribution by the guardian was made below, or has been made here. The surviving executors of the testator join in this appeal, which seems to indicate that they acquiesce in such order as was made, except in the particulars objected to by them, and it has been deemed to justify the consideration I have given to the matter upon the merits.

Eor. the reasons above given the order must be reversed.


text:
    Bridget Zelozoskei, appellant, v. Elizabeth Mason, respondent.
    [Filed January 27th, 1903.]
    A testatrix, having three daughters, left the bulk of her estate to two of them, bequeathing to the other only $1. The daughter thus discriminated against filed a caveat against probate, and contended that the will was the product of the undue influence of one of her sisters, who resided with the mother. It appeared that testatrix had imbibed a strong prejudice against the caveator, by reason of an' inference drawn by her in respect to caveator’s conduct, which inference was probably unjustified, but was not unnatural, under the circumstances known to testatrix.-—■ Held, that a case of undue influence, by false statements or suggestions on the part of the daughter who lived with testatrix, was not made out by mere proof that she acquiesced in her mother’s view, without‘proof that she knew, or at least, had reason to believe, that her mother’s prejudice was unwarranted by the facts.
    On appeal from the Essex county orphans court.

      Mr. William J. Kearns, for the appellant.

      Messrs. Guild, Lum & Tamblyn, for the respondent.
   Magie, Ordinary.

This is an appeal from a decree of the orphans court of Essex county admitting to probate a written instrument as the last will and testament of Bridget Trainor, deceased.

The appellant is a daughter of Bridget Trainor, and the will discriminates against her, and gives her only a nominal share of the estate of testatrix.

At the time of the execution of the will there were three children of Bridget Trainor living, all of whom were daughters. The caveator was one, another was Mrs. Keyes, living in Buffalo; another was the respondent, Elizabeth Mason, a widow, who had lived with her mother from a time about three months before the execution of the will, and who continued to live with her until her death, which occurred nearly three years afterward. The bulk of testatrix’s estate was, by the will, given to Mrs. Mason and Mrs. Keyes. The bequest to the caveator was of $1.

The evidence before the orphans court, appearing in the transcript, clearly shows that the instrument in question was executed with all the formalities necessary to make it a valid testamentary disposition of property.

The evidence also discloses that, at the time of the execution of the will, the testatrix, although aged and somewhat infirm, possessed testamentary capacity, and there was no question in the court below, and there has been no question here, but that she was capable of making a will, or that she had executed properly the will in question.

The contention below, and here, has been that the will was not the act of decedent, but was induced by the unjlue influence of Elizabeth Mason, the daughter, who lived with her mother, the decedent.

The fact that Elizabeth Mason was, and had been for some little time, an inmate of her mother’s house, living with her in the close intimacy that such conditions produce, no doubt discloses that she had the opportunity to exert some influence upon her mother. But the burden of establishing, by proof, the existence of that influence which is called undue is primarily upon the person who asserts its existence. Proof that opportunity existed to exert influence will not suffice. Uor will such proof, standing alone, raise such a presumption as to shift the burden, and require explanation or denial from the accused person. When proof of the opportunity to exert influence is supplemented by proof of the existence of relations of a confidential character, justifying the inference that the testator relied upon the advice and assistance of the other person in business matters, or by proof that such person exerted an actual control of the testator, as by excluding from communication with him others who would naturally be subjects of testamentary bounty, or by like conduct, the burden of proof is shifted, and explanation or denial is required. The probate judge who heard and saw the witnesses has found that there was no proof, in this case, imposing any burden of explanation or denial upon Mrs. Mason, and in that conclusion I entirely concur. I am unable to find any evidence justifying a contrary conclusion.

If I had reached a different conclusion, I should be obliged,* also, to conclude that Mrs. Mason had sustained such burden. She testifies unequivocally that she never made any suggestions or exerted any influence upon her mother in respect to the execution of a will or its provisions. There is no evidence that her mother relied upon her advice, or was accustomed to yield to her influence. On the contrary, in the solo instance in which it was sought to show the exertion of influence over her mother • by Mrs. Mason, it clearly appears that the attempt was ineffective. Caveator and a witness called by her testify to having overheard Mrs. Mason suggest to her mother that caveator should be evicted from apartments which she occupied in her mother’s house as a tenant. Mrs. Mason denied having made any such suggestion, but if the charge is credited, it appears, by the same evidence, that her mother declined to act as suggested, and permitted caveator to remain as tenant of the apartments.

The contention that Mrs. Mason exerted undue influence upon her mother is mainly put upon the ground that her conduct was fraudulent, in that she permitted and encouraged an untruthful inference to operate upon her mother’s mind, to the disadvantage of the caveator. The circumstances upon which this claim is made are these:- Shortly before the will was executed another daughter of decedent had died very suddenly from apoplexy. For certain reasons the authorities of the church to .which the parties belonged refused to permit the body of the deceased daughter to be buried in the cemetery of that church, and the family were compelled to bury it in another cemeterjr, which they deemed not consecrated. The evidence discloses that this occurrence occasioned very great sorrow to the testatrix, and also that she attributed the fact that the ecclesiastical authorities had excluded the body of her dead daughter from what she conceived to he proper burial to some act, or omission to act, on the part of the caveator*. The evidence tends to show that the exclusion from burial in the Catholic cemetery was not brought about by any act of the caveator, but wholly because of the application of the rules of the church to the case in hand. But it also appears that the rules of the church, in that respect, were sometimes relaxed or dispensed with, or at least the parties believed so. Caveator admits that, in behalf of the family, she put herself in communication with the church authorities, and sought to obtain permission for the burial of her sister in their cemetery. As her negotiation failed, it was not wholly unnatural in the deeply-grieved mother to attribute the failure to caveator, as not having made all possible efforts in that regard. The caveator admits that, although she knew of her mother’s grief at the fact of the exclusion, and that her mother held her responsible for it, she never laid before her mother the real facts, or sought to disabuse her mind, or show her that her notions with respect to caveator’s conduct were not justified.

Whether or not the feeling of the testatrix against the caveator operated in producing the will in question and reducing the bequest to caveator to a nominal sum, is open to serious doubt. There is very persuasive evidence that testatrix had executed a previous will, made before the death and burial of the daughter, and therefore before there was any reason for the mother having prejudice against caveator on account of any act or omission connected therewith, in which there was a like provision with respect to caveator. Assuming, however, that there may be justifiable inference from the evidence that testatrix deceived herself with respect to the conduct of the caveator, and that such self-deception produced the nominal bequest to caveator, that fact will not render invalid the testamentary disposition made by testatrix. She had a right to act upon her own inferences, and to give or withhold her bounty according as matters appeared to her, even though an apparent injustice is thereby done.

But the claim is that Mrs. Mason encouraged her mother in her delusion respecting the conduct of the caveator, and that thereby she exerted over her mother an influence that was undue. Undoubtedly a knowingly false representation of facts to one who proposes to make a. testamentary disposition of property, intending to influence, and actually influencing, his testamentary act, made by one who seeks and obtains an advantage therefrom, may be admitted to be an exertion of an influence that is undue, the will of the deceased being deemed to be dominated, not by excessive persuasion or threats or force, but by fraud. Stewart v. Jordan, 5 Dick. Ch. Rep. 733. The proofs respecting any communication between Mrs. Mason and lier mother on the subject of the mother’s anger at the caveator is extremely contradictory. But there is evidence which, if credited, seems to indicate that Mrs. Mason appeared to acquiesce in her mother’s view of the responsibility of the caveator for the occurrence which the mother deemed so grievous. But a ease of undue influence is not thus made out. There is no evidence whatever that Mrs. Mason knew the real facts, or had any reason to believe that the real facts would have exonerated her sister (the caveator) from the charge her mother persisted in making. There is, therefore, no room for inference that Mrs. Mason presented to her mother, by her acquiescence in her mother’s view, a statement which was known to her to be false in fact.

This result renders it unnecessary to consider the question whether, if there was evidence that Mrs. Mason was aware that her mother’s animosity was founded upon error, and that the real fact was that caveator had not been delinquent as her mother deemed, she exerted an influence that was undue, by the mere fact that she did not disclose it to her mother. If her mother had questioned her with respect to the facts, and especially if she had connected such questioning with her preparations to make a will, perhaps duty would have required her to disclose the real facts, and her suppression of them might be considered fraudulent, and if it influenced the mother, the influence might be considered undue. But there is no evidence whatever that the testatrix sought from Mrs. Mason any statement respecting the facts, or any advice or aid respecting the testamentary disposition of her property.

The attack upon this will as being the product of undue influence has no support, in my judgment, in the evidence.

The decree admitting the will to probate was therefore proper to be made, and must be affirmed.


author: Per Curiam.

text:
    Note.—The following- opinions of November Term, 1901, were inadvertently omitted from their proper place in Volume XVIII.—Rep.
    Alexander P. Baldwin et al., respondents, v. Mabel C. Tucker et al., appellants.
    [Filed March 3d, 1902.]
   Per Curiam.

The decree appealed from is áffirmed, for the reasons given in the court of chancery by Vice-Chancellor Emery, whose opinion is reported in 16 Dick. Ch. Rep. 412.

For affirmance—The Ci-iiee-Justice, Van Syckel, Dixon, Garrison, Collins, Fort, Garrets on, Pitney, Krueger, Adams, Vredenburgh, Voorhees, VpooM—13.

For reversal—None.


author: Dixon, J.

text:
    John C. Bohle et al., appellants, v. Diedrich Hasselbroch, respondent.
    [Filed March 3d, 1902.]
    A trustee under a will, in disregard of the testator’s directions, used trust funds in her hands, together with her own funds, to buy real estate, and took the title in her own name; the amount of trust funds so used could' not be precisely ascertained, but it exceeded one-half of the price paid at the time of purchase.—Reid, that the cestuis que trust were entitled in equity to elect whether they would claim á charge upon the real estate for the amount of trust funds so invested, or would claim the real estate itself as owners, subject to a charge for the trustee’s own money so used; and that, in endeavoring to ascertain how much trust money and how much of the trustee’s own money had been invested in the property, every reasonable intendment should be made against the trustee, through whose default tlie truth had become obscure.
    . On appeal from a decree advised by Vice-Chancellor Stevens, whose opinion is reported in 16 Dick. Ch. Rep. P70.

      Mr. Charles W. Parker, for the appellants.

      Mr. J. W. Rufus Besson, for the respondent.
   The opinion of the court was delivered by

Dixon, J.

Anton L. Bohle, who died in 1863, leaving a widow and four children, by his will appointed his wife, Anna, his executrix and gave her all his property in trust for the maintenance of herself and his children during her life, and gave it after her death to his children. The will directed the trustee to keep the property invested “on good first bonds and mortgages of real estate.” In August, 1864, the widow married Diedrich Hasselbroch, by whom she afterwards had three children. In January, 1868, she purchased two plots of land in Hoboken, taking title thereto in her own name. The purchase-price of these lots was $14,700, but as they were encumbered for $2,000, only $12,700 was to be paid in cash. Of this sum more than one-half, but exactly how much cannot be ascertained, was paid with money .which Mrs. Hasselbroch held in trust under Mr. Bohle’s will. At that time Mr. Bohle’s children were all minors, living with their mother and stepfather. In December, 1898, Mrs. Hasselbroch died, and by her will devised the Hoboken lots to the three surviving children of Mr. Bohle, who now own the interest of their deceased sister, and are in possession of the property. Mr. Hasselbroch having brought an action of ejectment against these-children, claiming that he was entitled to the possession of the property as tenant by the curtesy'of his wife’s fee, they filed the present bill to restrain that suit, on the gróund that in equity their mother was only tenant for life and they.were owners of the fee, because of the improper use of the trust funds in the purchase. The chancellor’s decree denied this relief, but adjudged that the complainants were entitled to a lien on the property, prior to the husband’s curtesy, for so much trust money as was shown to have been used in the purchase, viz., $6,423, and interest since Mrs. Hasselbroch’s death, less rents and profits. Erom this decree the complainants appeal.

It is clear that Mrs. Hasselbroch committed a breach of the trust, when she used the trust funds in buying real estate, and took the title to herself without providing any bond and mortgage as a first lien in favor of the trust estate, 'as directed by the will of her deceased husband; and'the question is, what equitable situation was thereby created.

Several settled doctrines of courts of equity are pertinent to this inquiry.

It is a fundamental principle in regard to trust estates that the trustee shall derive to himself no gain, benefit or advantage by the use of the trust funds; whatever of profit may be made shall belong to and become, parcel of the trust estate. McKnight’s Executor v. Walsh, 9 C. E. Gr. 498. An outgrowth of this principle is that, as between cestui que trust and trustee and all persons claiming under the trustee otherwise than by purchase for valuable consideration without notice, all property belonging to the trust, however much it may be changed or altered in its nature or character, continues to be subject to or affected by the trust. Pennell v. Deffell, 4 De G. M. & G. 372, 388. As a concomitant of the rule just stated, and to effectuate fully the fundamental principle, another rule exists, that, when the trustee has improperly changed the form of the estate, the cestuis que trust may elect whether they will accept the estate in its new form or will hold the trustee responsible for it in its original condition. Ferris v. Van Vechten, 73 N. Y. 113. If the improper conversion turns out to be advantageous, they maj'' adopt it and take the profit; if it results in loss, they may insist on having an equivalent for the estate as it was before the change; and when the cestuis que trust are infants, the court will deal with the’ matter as it shall consider best for their interest. Holcomb v. Executor of Holcomb, 3 Stock. 281. This right of election by the cestuis que trust is upheld by courts of equity in many cases where there has been misconduct on the part of the trustee, as may be seen by reference to Fox v. Mackreth, 1 Lead. Cas. Eq. *115, and has been fully approved by this court. Mulford v. Bowen, 1 Stock. 797; Stewart v. Lehigh Valley Railroad Co., 9 Vr. 505. It is enforced in cases like the present, for if a trustee purchases property with trust funds in his hands, and takes title in his own name and for his own benefit, he will, at the option of the cestuis que trust, be declared to hold it in trust for them. Durling v. Hammar, 5 C. E. Gr. 220; Story Eq. Jur. §§ 1260, 1262. And if, in such a purchase, he has mixed up moneys of his own with the trust funds, a trust will still result to the cestuis que trust at their option; and the burden will be on the trustee to show the amount of his own funds used in the purchase, and so far as he fails to make that distinction the court holds the property bound by the trust. Russell v. Jackson, 10 Hare 204, 213; In re Pumfrey, L. R. 22 Ch. Div. 255; Perry Trusts § 128; 2 Pom. Eq. Jur. § 1076 (2).

In accordance with these doctrines we think that the complainants, when their right to the possession of the trust estate matured by the death of their mother, were entitled, upon showing that the trust funds had formed a considerable part of the purchase-money by which their mother had acquired title to the Hoboken lots, to elect whether they would claim a lien upon the lots for the amount of trust funds used in the purcháse, or would claim the lots, subject to be charged, in favor of the personal representatives of their mother, with so much of the purchase-money as consisted of her own funds, and that, in endeavoring to ascertain how much was trust money and how much was the trustee’s own, every reasonable intendment should be made against the trustee through whose fault the truth had become obscure.

Since the complainants, being in possession of the lots, have filed their bill in equity to have it decreed that by their trustee’s purchase they became owners of the fee in remainder after their mother’s life estate, they have thereby elected to take the real estate in lieu of the trust money invested therein, and to hold it charged only with their mother’s own money so invested. Such a charge gives the husband no right to maintain ejectment, and consequently the complainants are entitled to a decree restraining his suit.

The present proceedings are not adapted to the ascertainment either of the amount of the charge or of the persons entitled to enforce it.

Let the decree appealed from be reversed, and a decree be entered as above indicated.

For reversal—The Chief-Justice, Dixon, Garrison, Collins, Eort, Garretson, Hendrickson, Pitney, Adams, Vredenburgii, Voorhees, Vroom—12.

For affirmance—None.