text:
    Joseph Massopust and John Kutcher v. Lembeck & Betz Eagle Brewing Company (now New Jersey Refrigerating Company).
    [Submitted October 9th, 1922.
    Decided October 21st, 1922.]
    A note of a saloon keeper to a brewer which was given when he took over the saloon on account of fixtures therein belonging to the brewer, but which, according to agreement and custom he was not to be called on to pay so long as he bought beer from the brewer, will not be converted into an absolute promise to pay and enforcement permitted on prohibition going into effect, because when the performance of the contract to buy beer became unenforceable, the penalty for non-performance also became unenforceable.
    On bill, &c.

      Mr. Thomas Brown, for the complainants.

      Mr. D. Eugene Blankenhorn, for the defendant.
   Foster, V. C.

Complainants seek to have defendant restrained from prosecuting an action at law on a promissory note given by them to defendant for $2,025.25, on the ground of an allegeiLpral agreement between the parties that complainants were not to be liable for the payment of the note, nor the chatteT mortgage given as security therefor, unless they refuse to purchase the lager beer of the defendant at a fair market price, and on the further ground of a custom existing in the dealings of defendant with other saloon owners in Perth ° Amboy, which custom was to relieve such saloon keepers from the payment of similar notes and mortgages.

The note and chattel mortgage were given under the following circumstances: On March 21st, 1917, complainants purchased the saloon and hotel business of one George C. Hriczko, in Perth Amboy, for $28,500, and on the same day they signed the promissory note in question, which is payable on demand, and also executed the chattel mortgage on the saloon fixtures to secure the payment of this note. It appears that said George C. Hriczko had been engaged in the saloon business in Perth Amboy for many years, and that in 1908 he was a customer of the Central Brewing Corn-pony. On June 17th, 1908, defendant purchased from the Central Brewing Company its claim against Hriczko, consisting of a chattel mortgage on his saloon fixtures and Iris note for $1,000. Between 1908 and 1912 additions and repairs were made by defendant to these fixtures at a cost of $898.25, and on January 19th, 1912, Hriczko gave defendant a new note and chattel mortgage for $1,898.25, and between 1912 and 1915 further repairs or additions were made by defendants to the fixtures at a cost of $127, making the total of the alleged indebtedness due on June 30th; 1915, from Hriczko to defendant, $2,025.25, which is the amount of the note in suit, and admittedly the payment of neither the principal nor interest of this indebtedness had ever been demanded from Hriczko during all the years he was in business and purchased and sold the products of defendant. Defendant claims this sum represents the true value of the fixtures at the time complainants purchased the business, while complainant’s proof shows that a substantial part of the fixtures were second hand when Hriczko acquired them, about sixteen years ago; that some of them were rather useless, and that some of them had been removed to this saloon after considerable use in other saloons, and that at the date of this transaction these fixtures were worth about $500.

The complainant Massopust has lived in Perth Amboy for about thirty-seven years; for about ten years he conducted a saloon and purchased his beer from defendant; later he engaged in the real estate business, and as a broker he has sold twenty-five or more saloons in Perth Amboy, or its vicinity, that were doing business with defendant; that he has known William E. Thiele, the agent of defendant, for over fifteen years, and has had dealings with him in effecting the sale of saloon properties.

The other complainant Kutcher was the agent or collector of the defendant for over twenty-three years, and he continued in defendant’s employ for about a year and a half after the purchase of this saloon and hotel business. Thiele was his immediate superior and was called his boss, and he and Thiele for years had the most intimate business relations.

Both complainants testify that for years they were familiar with the practice of defendant to furnish chattels to be used in the saloon business, where the beer manufactured by defendant was sold; that defendant made it a practice to charge for the fixtures thus installed, as well as for all additions and repairs to the same, and also for the money which defendant sometimes advanced, and that the amount thus charged was represented by a promissory note of the saloon keeper, payable on demand and secured by a chattel mortgage on the fixtures; that it was also the practice of defendant never to ask for the payment of such notes and mortgages so long as the saloon keepers continued to sell defendant’s products; that the indebtedness thus represented was considered the indebtedness of the place and not of the proprietor of the saloon, and that a purchaser of a saloon was expected to assume this indebtedness by his own note and mortgage on the like understanding about his liability for their payment.

With these practices of the defendant in mind, complainants agreed, in January, 1917, to purchase the saloon business and property of Hriczko, and to assume his indebtedness to defendant for the fixtures. At this time, defendant held a mortgage for $10,000 on the hotel property and also held Hriczko’s note and chattel mortgage on the fixtures for $1,895.25. Defendant accepted payments from complainants, which reduced its real estate mortgage to $7,000, and consented to make this amount subject to a first mortgage of $15,000, which complainants borrowed to buy the property, and when the transaction was closed, in March, 1917, complainants gave defendant the real estate mortgage for $7,000, and the note and chattel mortgage in suit. On June 19th, 1919, defendant demanded the immediate payment of the balance due on the $7,000 mortgage, and three days later began proceedings to foreclose this mortgage.

Complainants testify that before signing the note and chattel mortgage they were assured by both Mr. Thiele and Mr. Lembeck that the usual practice respecting the note and chattel mortgage would continue, and that Thiele told Kutcher, complainants would have to give the note and chattel mortgage, and when Kutcher told him it wasn’t necessary, Thiele said it was, “so we can show something to keep our books and things like that in the office straight,” and further, “that we have got to have something to show when you sell it again, this goes over to the next man. You have nothing to do with it. As soon as you sell out again, we turn it over to the next man.” Thiele further told him that so long as complainants dealt with defendant at the market price, and sold their products, there would be no demand made for the payment of the note and chattel mortgage. Thiele denies having made these representations, and defendant attempted to show that if Thiele ever made them, it was after complainants had agreed, in January, to purchase the property and business; and also to show that if Thiele ever made these representations, he was without authority to do so. I find the proofs convincing that Thiele made these representations to induce complainants to sign the note and chattel mortgage, and that he was acting within the scope of his authority in doing so. The record also shows that no serious effort was made by defendant to contradict complainants’ evidence of its practice to refrain from collecting such notes and chattel mortgages so long as the saloon keeper sold its products.

From the date of the purchase complainants continued to perform this agreement by dealing only in the products of the defendant. In March, 1918, as a result of federal regulations limiting the use of cereals and coal, all of the brewery’s customers were rationed, and the price was increased to $9 for a half barrel of beer. When complainants learned they were being charged $17 a barrel, $2 of which was being credited on the chattel mortgage, they objected; and when defendant ceased making any deliveries of its beer or other' products, complainants then, for the first time, purchased beer from other breweries. And finally, when, as a result of the adoption of the prohibition amendment and the enactment of the Volstead act, it became impossible for complainants to legally perform their agreement to purchase and sell defendant’s products, payment was thereupon demanded of the mortgage on their real property and of this note and chattel mortgage.

The bill has evidently been framed to bring the case within the rule stated in O’Brien v. Paterson Brewing and Malting Co., 69 N. J. Eq. 117, and later in Gallagher v. Lembeck & Betz Eagle Brewing Co., 86 N. J. Eq. 188, and I find the proofs to establish the allegations of the bill, relating to the practice of the defendant, and its custom in the trade not to enforce the payment*of notes like the one in suit; and I also find the evidence to establish the representations which were made by the defendant’s agent to induce complainants to execute the note in question.

It is quite apparent from the record that payment of this note was never to be demanded, and certainly not so long as complainants continued to purchase the products of defendant’s brewery. When prohibition made further performance of this agreement by complainants, as well as tire defendant, impossible, defendant, then for the first time, sought to make absolute a conditional promise of payment. To permit the consummation of this purpose would clearly be inequitable, for, as the law itself prevents complainants from performing their agreement, it necessarily follows.that the law also relieves them from a lawful promise that it would now be unlawful for them to perform, and also relieves them from any liability or penalty for non-performance under such circumstances.

As neither the title of defendant to the saloon fixtures nor the right of defendant to foreclose its chattel mortgage is questioned in these proceedings, and as the proofs clearly sustain complainants’ contention respecting the purpose for which this promissory note was given, I will advise that the restraint prayed for be granted.


source: Caselaw Access Project

author: Buchanan, V. C.

license: Public Domain

text:
    In the matter of the application of Albert Hall.
    [Decided August 17th, 1922.]
    1. The statutory provision denying the writ oí habeas corpus to ■persons committed or detained under final judgment or decree of any competent tx-ibunal does not apply if the sentences under which the applicant is detained are void for want of jurisdiction of the court to pronounce them.
    2. The jurisdiction of a court, or its right to speak, as its right or power to pronounce a particular final judgment or decree as to. a pax-ticular person in a particular action.
    3. If the coux-t is without power to pronounce the .pax-ticular judgment as to a particular person in the pax-ticular action, its judgment is void.
    4. Where the court has power or jurisdiction to render the particular judgment, though such power is wrongfully exercised, the judgment is only voidable, axxd can he avoided only by direct appeal.
    5. Assuming that where the defence of former jeopardy is duly raised tlie fact of the indentity of the two offenses is fatal to any further jurisdiction in respect to the second charge, the right of immunity fx-om double conviction under the constitution is a personal right and may be waived, and when waived does not affect the court’s jurisdiction as to the further proceedings in the cause.

      6. Where one charged with embezzlement of $55,000 in one indictment, and in eight other indictments with embezzling parts of such sum, after pleading not guilty withdrew the plea and pleaded nolo contendere to all the indictments without offering to. so plead either to the first indictment or to the other eight, and without in any way raising the objection of double conviction, he waived the objection, especially where sentence under the last eight indictments was not imposed at the same time as sentence under the first indictment, and during the interval the defendant made no attempt to withdraw his plea and plead a former conviction.
    On writ of habeas corpus.

      Messrs. Baclces & Schroth, for the petitioner.

      Mr. George T. Vichers, for the state.
   Buchanan, V. C.

This writ of habeas corpus brings up the legality of the confinement in the state prison of the petitioner, Albert Hall. The petition sets forth that his confinement is under color of commitments from the Hudson county oyer and terminer on nine sentences or judgments on a corresponding number of indictments for embezzlement (numbered, respectively, 189, 331, 332, 333, 334, 335, 336, 337 and 338, December term, 1918), each for a maximum term of three years and minimum of one year, and running consecutively—the term in respect of indictment No. 331 commencing at the expiration of the term in respect of indictment No. 189, and so on; that the petitioner has served the maximum term of the sentence under indictment No. 189, and has paid the costs of prosecution; that indictment No. 189 was for the embezzlement of $55,000, and the other eight indictments were for the embezzlement of eight separate sums, together making up the $55,000 specified in the first indictment; that petitioner’s further confinement or punishment for any of the eight embezzlements was and is invalid, unwarranted and unjustifiable, as being a second or double punishment for a single offence, since each of the eight séparate embezzlements of particular sums is comprised within and is. a part of the offence of the embezzlement of the total aggregate sum of $55,000, for which, offence he has already served the sentence imposed.

The original return to the writ set forth that petitioner was detained in custody by reason of nine commitments from the Hudson county quarter sessions, and annexed copies of the said commitments (which are copies of the sentences or judgments certified by the clerk of that court under seal). These commitments are in accordance with the allegations in the petition—that is to say, they are respectively on sentences on nine indictments for embezzlement, numbered, respectively, 189 and 331 to 338, inclusive, December term, 1918, each sentence being for imprisonment at the state prison for a maximum of three years and a minimum of one year, and each (except the first), to commence on the expiration or, satisfaction of the preceding sentence.

Justification for petitioner’s confinement is obviously shown on the face of the return as being under the sentence on the second indictment (No. 331), since a period of confinement equal to the term of imprisonment under the sentence on the first indictment (No. 189) has been served, and the term of imprisonment under the sentence on the second indictment was to commence at the end of the sentence on the first indictment.

We need not concern ourselves with any question as to the effect of the Indeterminate Sentence act (P. L. 1911 p. 356), since (1) petitioner makes no claim thereunder; (2) the total minimum term under the sentences for the nine indictments has not expired or been served, and (3) it is of no importance whatever in the determination of the present issue whether petitioner be deemed to be now kept imprisoned under the sentence on the second indictment or under 'the sentence on any of the subsequent indictments.

Our statute (2 Comp. Stat. p. 2639 § 2) provides that—

"Persons committed or detained by virtue of the final judgment or decree of any competent tribunal of civil or criminal jurisdiction, or by virtue of any execution issued upon such judgment or decree, unless such judgment or decree be founded upon contract; * * *”

shall not be entitled to prosecute the writ of habeas corpus.

The cause of petitioner’s detention is shown to be by virtue of the final judgment or sentence of a court of criminal jurisdiction, to wit, the Hudson county quarter sessions.

This is not denied by the petitioner, nor does he intimate that that court was not a court of competent jurisdiction to try the indictments in question, nor that it did not have jurisdiction over his person, nor,that it did not have full power and right in an ordinary case of embezzlement, on conviction or plea of guilty or non vult, to pronounce a valid legal sentence of three years maximum and one year minimum, and to pronounce like sentences in each of several such cases and to provide that the terms should run consecutively.

Petitioner does contend, however, that the particular judgment or sentence of that court, under which he is now confined—that is to say, the judgments or sentences on all the indictments except No. 189—is invalid and void, in that the court at the time of the pronouncement thereof was. without jurisdiction to pronounce the same or any other sentence in respect of the last eight indictments.

If this contention be true—if the sentence or sentences under which he is now confined were and are void for want of jurisdiction of the court to pronounce them—then, of course, the statute (supra) offers no bar to petitioner’s release upon habeas corpus. In re Marlow, 75 N. J. Law 400; State v. Osborne, 79 N. J. Eq. 430.

Specifically, petitioner’s contention is that under the law of this state, every man is given immunity from being convicted a second time for an offence of which he had theretofore already been convicted; that he having once been convicted for an offence, no court thereafter has power or jurisdiction to convict him again for the same offence; that, hence, the court of quarter sessions had no power or jurisdiction to sentence him on any of the indictments Nos. 331 to 338, inclusive, after sentencing him on indictment No. 189, because the latter indictment was for the embezzlement of a sum inclusive of all the separate sums alleged by the eight other indictments, and a sentence on any of the eight would be a second conviction for an offence of which he had been convicted under the indictment No. 189.

By paragraph 10 of the hill of rights, in our statute constitution, it is provided that “no person shall after acquittal he tried for the same offence.”

It has also heretofore been determined that where a former acquittal would relieve a defendant, a former conviction will have the same effect. State v. Cooper, 13 N. J. Law 361. That case, it is to be noted, was decided under the prior constitution of New Jersey, in which the prohibition was in terms which differ very materially from the present phraseology. Let us assume, however, for the purposes of this ease, that that decision is still the law of this state.

It might seem, then, at first impression, that no court before whom an accused.is brought for trial as to an offence charged against him can have jurisdiction to try him if the offence charged is one of which he had theretofore been acquitted, or convicted, and that if there be no jurisdiction to try, there can be no jurisdiction to sentence.

A little reflection, however, discloses that this is by no means a necessary or logical- conclusion. In the first place, the constitutional provision is in express terms against a second trial; nothing is said as to a sentence. An accused may (except in the case of a capital crime) plead guilty and thus waive a trial. If he does so, is there any prohibition against his being sentenced, even though, in fact, the offence of which he has pleaded guilty is the same offence of which he has previously been acquitted or convicted? In the second place, is the lack of jurisdiction to try, a lack which may be cured by the waiver or consent of the accused ? In the third place, it will be realized that as a practical matter, where an accused desires to avail himself of the protection against a second trial, it must somehow he made to appear that the offence charged is the same as the offence of which he has already been acquitted or convicted. That question is a mixed question of law and fact, and it must be determined by some tribunal. In our procedure the question is raised by a plea, and the court in which the indictment is pending first determines the issue so raised, and, thereafter, according to the result thereof, discharges the prisoner or proceeds with the trial of the indictment. Is the finding of such tribunal, upon that issue, conclusive except upon appeal, or is it subject to collateral attack or review by habeas corpus?

It is unnecessary to pursue the last mentioned of these three inquiries, for the reason that the situation upon which it is predicated does not exist in the case at bar. There was no trial or determination of any issue as to the identity of the offences; the accused entered no such plea and made no such objection either formally or in any otherwise. He at first pleaded not guilty to each of the nine indictments, and later retracted and pleaded non vuU in each case, and was thereupon sentenced, of course, without trial of any kind.

The jurisdiction of a court—its “right to speak”—is its right, or rather its power, to pronounce a particular final judgment or decree as to a particular person in a particular action. If it has no such power then its judgment is void and amounts to nothing. If it has such power, that power may be exercised rightfully or wrongfully in any given case, but though exercised wrongfully it is, at most, only voidable; and if voidable at all, only by direct appeal. There may be no right of appeal therefrom, or no appeal may in fact be taken, but except it be reversed on appeal it is valid and binding everywhere.

If there be a failure or lack of jurisdiction as to any one of the three phases, it is fatal to the validity of the judgment ; there must be power over the person, power to deal with the particular action, and power to pronounce the particular judgment. . Jurisdiction over the person of a defendant, in a civil suit, is acquired by the service of the court’s process upon him. Such service upon a non-resident out of the state does not confer jurisdiction, for the power and authority of the state itself does not extend, generally speak-, ing, beyond its territorial limits. That defect, however, may be waived or cured by the consent of the defendant, and so, as it is usually said, jurisdiction over the person may be acquired by consent.

Jurisdiction over the subject-matter of the suit cannot be acquired by 'consent. The power of a court to deal with any given cause of action rests solely upon its having been clothed with that power by the constitution .or (where statutory authorization is not unconstitutional) by statute. The parties lo the action cannot invest it with such power. If this court, for instance, should assume to try a suit as to the subject-matter of which it had not jurisdiction, its decree would be void, even though the parties expressly stipulated that it should be binding, and even if the procedure and result of the trial and the decree were in other respects entirely correct and identical with that of the proper court of law.

It is in criminal action that the third class of questioned jurisdiction most frequently arises. A court may have jurisdiction over the person of the accused, and full power and authority to try cases of the particular crime charged against him, and yet may not have power to pronounce the judgment or sentence which it imposes. This defect in its jurisdiction may be a lack of power to pronounce the particular sentence which it assumes to impose, or it may be a lack of power to impose any judgment whatever. In State v. Osborne, supra, it was contended that the latter situation existed; Ex parte Lange, 85 U. S. 163, illustrates both situations. In that case the trial court had sentenced the convicted defendant to both fine and imprisonment where the statute authorized onty one or the other. The trial court later sought to correct the matter by vacating the original sentence and sentencing to imprisonment only. In the meantime, however, the prisoner had paid the fine (as well as serving a few days of imprisonment). As to the first sentence, the trial court had not authority to impose that particular sentence; as to the latter sentence (the opinion holds), it had not authority to pronounce any sentence, because its power and jurisdiction had been lost by the imposition of the first sentence and the performance and satisfaction of that part of the sentence which imposed a fine (the fine actually imposed being the maximum amount allowed by the statute).

The case now before us is one where the alleged wrongful act of the trial court lay, not as to the particular sentence imposed as to any of the indictments Nos. 331 to 338, but in imposing any sentence whatever as to any of such indictments ; and it is further contended that that act was not mere error, but was wrongful because of lack of jurisdiction or power; that the fact that the eight offences on these indictments were the same as the offence in indictment 189 automatically deprived the court, upon sentence on indictment 189, of any power or jurisdiction to sentence on any of the other eight.

Upon the question as to whether the effect of the actual identity of the offences is to deprive the court of jurisdiction (if the objection is raised), the eases in the various states and federal courts are much in conflict. Beference to, or consideration of, them at any great length would serve no useful purpose, in view of the conclusions reached on other factors involved in the present issue.

By way of illustration, however, mention may be made of several decisions in the federal courts. In Ex parte Bigelow, 131 U. S. 328, a prisoner serving sentence on indictment and conviction by the supreme court of the District of Columbia, sought a writ of habeas corpus from the United States supreme court. He had interposed the defence of former jeopardy in the progress of the cause in the trial court. The writ of habeas corpus was refused on the ground that the trial court had jurisdiction to determine the question raised on the interposition of the defence of former jeopardy, and that its determination thereof was binding and conclusive and could, not be reviewed by habeas corpus. On the other hand, the same court, in Ex parte Nielsen, 131 U. S. 176, had before it an appeal from the district court of Utah territory, which had refused a writ of habeas corpus sought by Nielsen after trial and conviction. Nielsen had set up the detailed facts of a former conviction by way of plea of former conviction, and a demurrer to that plea had been sustained. The supreme court holds that the trial court’s determination on the demurrer to the plea was erroneous; that the facts set up by the plea were sufficient to show former conviction; that the sentence was therefore beyond the jurisdiction of the court; and that the error appearing on the face of the record, the writ of habeas corpus should have been issued by the district court. The opinion does not mention the Bigelow Case, although the report shows that that case was relied on by the solicitor-general. In Bens v. United States, 266 Fed. Rep. 152, the United States circuit court of appeals for the second circuit had before it an appeal from an order of the district court dismissing a writ of habeas corpus which had been issued at the instance of Bens, who was in custody of a United States marshal, on a criminal charge to which he had pleaded not guilty. He sought release by habeas corpus on the ground that he had previously been acquitted of the same offence. The circuit court of appeals affirmed the dismissal of the writ on the ground that the two offences were distinct and 'not identical, but expressly holds that that question may be inquired into on habeas corpus, and that if the defence be found to be good, the prisoner must be discharged, because “there is no power in any court to try him the second time, and a second judgment would be not merely erroneous but absolutely void.”

(It should be borne in mind that there are certain differences as to the law of habeas corpus and its application between the federal jurisdictions and our own state.j

Assuming, however, for the purpose of the present case, that where the defence or objection of former jeopardy is duly raised by defendant, the actual fact of the identity of the two offences is fatal to the existence of any further jurisdiction by the trial court in respect of the second charge, the question still remains as to whether the interposition of the defence, or the raising of the objection before the trial court in some manner, is an essential factor in the ousting of that court’s jurisdiction; or whether the objection can be successfully raised for the first time after judgment, and irrespective of any waiver or consent, as concededly would be the case if the ground of attack were an alleged want of jurisdiction as to the subject-matter of the cause.

To put it somewhat more concretely, the case, sub judice, presents the situation of a defendant before the trial court, charged with a criminal offence which is alleged to be in fact the same offence as that of which he has previously been convicted. If, therefore, he had pleaded the former conviction, that issue must have been found in his favor, and the trial court would thereupon have been without jurisdiction (as we have assumed) to proceed further in the cause other than to order his discharge from custody. He did not plead the former conviction; on the contrary, he (after first entering and then retracting a plea of not guilty) pleaded non vult and was sentenced without making any objection whatever. Was his right to be free from second jeopardy a right which he could waive ? If so, did he waive it under the circumstances mentioned ? If he did, is such waiver binding and conclusive upon him, or has he the right, notwithstanding such waiver, to challenge in this proceeding the trial court’s jurisdiction to sentence him ?

The weight of general authority seems to be that the right is one which may be waived and that such waiver, if made,' is binding and conclusive. Dalton v. State, 224 Ill. 333; People v. McGinnis, 234 Ill. 68; State v. White, 71 Kans. 356; Blocher v. State, 177 Ind. 356; Peaple v. Stoll, 143 Cal. 689; State v. Houghton, 45 Ore. 110; Gue v. City of Eugene, 53 Ore. 282. Cf., also, the various text-writers and digests. That such is the law of this state I think there can be no doubt, although I have found no specific adjudication in this state.

In State v. Ackerman, 64 N. J. Law 99 (at p. 102), the principiéis laid down that as well under our statute (2 Comp. Stat. p. 1885 § 45) as at common law, the defence must be raised by plea in ivriting. The inference would seem justifiable that if not so raised it is waived and not available. There are, however, decisions upon the question of. waiver in regard to similar rights or privileges. The provision as to freedom from second trial after an acquittal is found (section 10) in the schedule of “Eights and Privileges,” in article 1 of our constitution. If the defence of former conviction has behind it an equal sanction, nevertheless it rests on no stronger ground than do the other rights guaranteed in and by article 1, such as to the right to trial by jury (section 7), the right to the assistance of counsel (section 8), and the freedom from criminal trial (in general) except after indictment (section 9).

Surely no right can be more jealously guarded or more strongly buttressed in our system of jurisprudence than the right of one accused of crime to a trial by jury. Yet that that right is a purely personal one and may be waived by the defendant, and that such waiver, if made, is binding and conclusive, notwithstanding the constitutional provision referred to has been expressly held by the supreme court. State v. Stevens, 84 N. J. Law 561; State v. Edwards, 45 N. J. Law 419; and see O’Keefe v. Moore, 60 N. J. Law 138. It has also been decided by the same court that the constitutionally guaranteed right to the assistance of counsel may likewise be waived by an accused (State v. Raney, 63 N. J. Law 363); and similarly as to right of freedom from trial except upon indictment found. Edwards v. State, supra; O’Keefe v. Moore, supra.

Of these three instances the one last mentioned offers perhaps the closest analogy and the strongest argument in connection with the instant case, because the phrasing of the constitutional guaranty or prohibition is in these two sections (9 and 10) identical in form.

“9. No person shall be held to answer for a criminal offence unless on the presentment or indictment of a grand jury, * * *”
“10. No person shall after acquittal be tried for the same offence.”

Hence, the argument based upon the wording of the provision to which I have hereinbefore alluded, is rendered untenable. „

Upon this doctrine or principle the court of errors and appeals has placed its seal of express approval in its opinion in State v. Knight, 96 N. J. Law 461 (at p. 464).

It being established that the right in question is a personal right and that it may be waived, and when so waived can in nowise affect the jurisdiction of the trial court as to the further proceedings in the cause, but is conclusive upon the defendant, it yet remains to determine whether such waiver was in fact made by petitioner.

The effect of failure to interpose the plea of former conviction has already been considered. In my view such failure, in any ordinary case, constitutes a waiver. In the present ease, however, we have the additional feature of the retraction of not guilty and the plea of nolo contendere. Certainly this would appear to be as final and complete a waiver as could possibly be made. The effect, in the criminal proceedings, of such a plea is identical with that of a plea of guilty. State v. Henson, 66 N. J. Law 601; State, Peacock, v. Hudson Quarter Sessions, 46 N. J. Law 112. The effect, as it is stated in the opinion of the court of errors and appeals in State v. Alderman, 81 N. J. Law 549 (at p. 550), is that there is “nothing left for the court to do except to impose sentence.”

It is, however, strongly' urged on behalf of petitioner that under the particular circumstances of the case there was no waiver, notwithstanding the failure to plead autrefois convict and the actual pleading of nolo contendere. The argument amounts to this: That under the law of this state the defence of former conviction must be set up by special plea (State v. Ackerman, supra), and that such defence can validly be pleaded or sustained only where there has been a sentence or judgment entered, establishing and constituting the “former conviction” (Smith & Bennett v. State, 41 N. J. Law 598); that the present petitioner was not able to plead former conviction when called upon to plead to the eight individual indictments because he had not been convicted on the first or blanket indictment; that being, in fact, guilty of the offences charged against him in the blanket indictment and in the individual indictments, the only real right he had was that he should not be convicted and punished twice for the same offence, i. e., that if convicted on the blanket indictment he should not be convicted on the eight individual indictments, or vice versa; that his retraction of “not guilty,” and his pleading of nolo contendere was therefore the right and commendable thing for him to do/ but that it should not and can-not be deemed to have been a waiver of his right to be free from a double conviction, since at the time of such retraction and plea it was not open to him to plead former conviction (the only legal method of presenting to the court his insistment upon such right) to any of the indictments, since there had not then been a conviction upon any of them; that he was in fact sentenced on all nine indictments in one single collective pronouncement; that he, therefore, never had any opportunity to set up the defence of former conviction, because he had no such defence until he was actually sentenced on the blanket indictment No. 189, and at the same instant and by the very words of the sentence on that indictment he was also sentenced on the eight individual indictments; that no waiver can be inferred from a man’s failure to do that which he never had any opportunity to do.

The argument is ingenious but fallacious. True, he could not plead autrefois convict when called upon to plead to the later indictments, because he had not then been convicted. He could, however, have interposed an objection of some sort which would have shown that he intended not to waive but to insist on freedom from double conviction. He might, perhaps, have pleaded or attempted to plead in abatement the fact of the prior indictment pending, or moved to quash either the earlier or the' later indictments, or called upon the state to elect as between them, or asked a stay, or asked leave to plead not guilty and to reserve the right to retract and plead autrefois convict, if convicted on the earlier indictment. I by no means intend to be understood as intimating that all or any of these methods would have been the correct procedure; we are dealing here simply with the question of whether or not there was a waiver, and as regards that question it would seem to me to be of little, if any, moment by what means, however informal, his objection were made known to the court. Where, as here, he did nothing whatever (except to plead not guilty to all the indictments), there is nothing so far to prevent the inference of waiver, at least, as the result of his entire conduct. Subsequently, he retracted and pleaded nolo contendere to all the indictments. There was nothing to c'ompel him to do this; there was nothing to impel him to do it as a matter of righteous and commendable conduct. Even if we can assume that he was actuated by praiseworthy motive rather than a selfish hope of diminishing a punishment that he knew was certain, all that he was called upon to do was to offer to plead guilty or nolo contendere to the blanket indictment or the eight later indictments, the one or the other. He not only took no such course, but did nothing else of any kind tending in anywise to rebut the inference of waiver which it seems to me must therefore necessarily be drawn from the fact of such plea.

But this is not all. I am entirely satisfied from the evidence that he was not in fact sentenced at one and the same time, in a single pronouncement, on all nine indictments. (The state contends that he was in fact never sentenced on indictment No. 189 at all, but from the evidence before me I am compelled to find that he was.) Neither was he sentenced on No. 189 on the same day that he was sentenced on the other eight. I have no doubt whatever but that Judge ¿McCarthy imposed sentence upon the present petitioner on ¿March 27th, 1919, in substantially the following language: “Albert Hall, you have pleaded non vult to indictments Nos. 331 to 338, inclusive, of December term, 1918. The sentence pf the court is that you shall be confined in the state prison at Trenton at hard labor for a minimum term of one year and a maximum term of three years, upon each of these nine indictments, the sentences to run consecutively, and in addition you are to pay the costs. This will make a total minimum term of nine years and a total maximum term of twenty-seven years.”

Erom this it will be observed that petitioner was actually sentenced on indictments 331, 332, 333, 334, 335, 336, 337 and 338, the sentences being from one to three years on each indictment. The fact that Judge McCarthy said that these indictments constituted nine indictments, when in fact they total only eight, was a mistake (to which the existence of indictment No. 189 may or may not have been a contributing cause), but at most it was mere surplusage and was no part of the sentences actually imposed. The same thing is true as to his statement that the aggregate terms would total from nine to twenty-seven years.

The date of the sentence on indictment No. 189 does not appear in the evidence before me, but since it was not on ,the same day as the sentences on the other eight, and must necessarily been prior (since the commitment on No. 331 shows the term is to commence at the expiration of the term on No. 189), at least one day intervened between the two impositions of sentence. Yet he made no attempt to ask leave to withdraw his plea on the other indictments and plead autrefois convict instead, or to move to quash, or to move in arrest of judgment, or anything else in anywise intimating an objection against being sentenced on the other eight indictments. It may be added that there is no intimation of any attempt to secure a reconsideration of the sentences or review on appeal.

If there be anything in the entire course of his conduct tending in the slightest to rebut or prevent the inference of yraiver, I am unable to discern it. The view I take renders unnecessary the determination of the several other questions discussed in the briefs of counsel, interesting though they be.

The prisoner must be remanded.


author: Church, V. C.

text:
    Mary Allen Hahn v. Ironbound Trust Company et al.
    [Decided November 8th, 1922.]
    1. Where the signature cards of two -bank accounts opened by a man and his wife contained the following: “Ironbound Trust Company funds payable to either or the survivor * * * such moneys are to-be drawn * * * by either of us, or in the event of death of either to belong to survivor” and “North Ward National Bank. This account is subject to the order of either of the undersigned depositors, the balance at the death of either toi belong to the survivor.”—Held, that it was clearly the intention of the husband to vest in his wife the right of survivorship, and that after his death the accounts became her property.
    2. Where two joint bank accounts are opened by a man and his wife so that there is a right of survivorship, and later funds are drawn from both accounts and u-sed to- purchases securities—Seld, that, in the absence of any showing of intention to sever the joint tenancy, the securities w'ere held jointly, and became the wife’s sole property upon her husband’s death.

      Mr. Maximilian M. Stallman, for the complainant.

      Mr. Ralph E. Lum, for the defendants.
   Church, V. C.

Albert J. Hahn and Mary Allen Hahn opened two accounts in the name of Albert J. Hahn and Mary Allen Hahn, one in the Ironbound Trust Company, the other in the North Ward National Bank. The signature cards contain the following clauses:

“Ironbound Trust Company funds payable to either or the survivor * * * such money® are to be drawn. * * * by either of us, or in the event of death of either to belong to the survivor.” “North Ward National Bank. This -account is subject to- the order of either of the undersigned depositors, the -balance at the death of either to belong to the survivor.”

Albert J. Halm died, and by his will, after leaving a life interest in his property to his widow, left the remainder to his executors. During his lifetime he and his wife drew from the savings account sufficient money to buy twenty shares of the New Brunswick Light and Power Company, the certificate reading, “Albert J. Hahn and Mary Allen Hahn.”

I am called upon to decide whether the bank accounts and the stock belonged absolutely to the widow or whether they go into the residuary estate. It was admitted on argument that the complainant is entitled to the Ironbound Trust Company account. Considering the signature cards and the admission, I am of the opinion that it was clearly the intention of Albert J. Hahn to vest in his wife the right of survivorship in these bank accounts, and I so find. Kaufman v. Edwards, 92 N. J. Eq. 554:

The question as to whether the money withdrawn from these bank accounts to purchase the above-mentioned stock destroyed the right of survivorship has also been raised. It appears that $800 was withdrawn from one account and $700 from another, the difference for the purchase of stock being made up by cash on hand. I cannot find in this state any case directly in point, but counsel for the complainant has called my attention to the English case of Williams v. Hensman (English Court of Chancery), 30 L. J. Ch. 878; 7 Jur. (N. S.) 771; 5 L. T. 203; 70 Eng. Reprint 862. In this ease a testatrix devised a sum of money to a life tenant with the remainder to her eight children. The vice-chancellor found that under the terms of the will the eight children took the remainder as joint tenants. The estate was in money. Subsequently the five children, who were of age, entered into an agreement directing the trustee to invest their interests in a bond and mortgage. The vice-chancellor held that the five children who were of age continued to be joint tenants among themselves with respect to the security in which their joint moneys were invested by their direction; and he held further that to convert, a joint estate into an estate in common requires an express agreement or such an act as will clearly raise the inference of severance, and that the burden of proof is upon him who asserts the severance.

No proof has been submitted to me in this case that there was ever any severance intended when the money was withdrawn from the bank accounts to invest in this stock. From the evidence, it appears that Hahn and his wife desired a higher rate of interest than they could secure from the savings banks, and that there was no idea of changing the condition of the funds in the savings banks or of destroying the right of survivorship. See, also, 23 Cyc. 487 note, which says: “Employing part of the property in trade for mutual benefit does not sever a joint tenancy. Hall v. Digby, 4 Bro. P. C. 224; 2 Eng. Reprint 393.

I will therefore advise a decree that the right of survivor-ship in the two bank accounts, and also in the stock certificate, is in Mary Allen Hahn, and she is entitled to the amount on deposit in these two banks, and also to the certificate of stock of the New Brunswick Heat, Light and Power Company.


text:
    Alexander Brown et al. v. Ella Murray et al.
    [Decided October 2d, 1922.]
    1. Where deeds are executed for an express consideration, habendum to the use of the grantee, there is no resulting trust.
    2. The establishment of a constructive trust must be evidenced by something stronger than the mere breach of an oral promise to convey or to hold in trust.
    3. An oral trust must be established by clear evidence.
    On bill, &c.

      Messrs. Hopkins & Herr, for the complainants.

      Messrs. Fcdlon ■& Fallon, McDermott, Enright & Carpenter, for the defendants.
   Church, V. C.

This is a suit in partition. The intestate, Elizabeth M. Brown, died November 22d, 1919, leaving as her heirs-at-law tlie complainant Alexander Brown, a son; the complainant Donald Brown, a grandson, and the defendants William P. C. Brown, a son, and Ella Murray, a daughter.

She was seized at her death of two parcels of real estate; the first, a lot and two-story brick building at 138 Hancock avenue, Jersey City; the second, a tract comprising two vacant lots of land at West New York.

The defendants’ version of the acquisition of said property is to the effect that the property ip Jersey City was purchased by William P. C. Brown from the Second United Presbyterian Church of Jersey City, about July 8th, 1907, and that thereafter a house was erected upon said premises, and after the house was erected in pursuance of a conversation and agreement with his sister, he conveyed the premises to his mother, and that his mother verbally agreed that in case she disposed of the property in any way she would give William “his share for the lot.” The testimony of Ella Murray is substantially to the same effect.

That the West New York lots were purchased from the West New York Improvement Company about March 15th, 1911. Title was taken in the name of William P. C. Brown, and on or about May 10th, 1917, he conveyed them to his mother, and his mother verbally agreed at the time of the conveyance that she would reconvey them to him at any time at his request.

There does not seem to be any testimony of any kind in the case that there was any agreement or understanding with the mother, Elizabeth M. Brown, that she was to hold the premises in trust for Ella.

Both the deed for the Jersey City property and the deed for the West Hoboken property recite a money consideration, and the habendum is to the nse of the mother, Elizabeth M. Brown.

The amended answer and the counter-claim of the defendant pray for the reformation of the deeds in question so that they express a trust in favor of the defendants Ella Murray and William P. C. Brown, and that it may be decreed that William P. C. Brown and Ella Murray are sole owners of the Jersey City property, and William P. C. Brown is the owner of the West New York property.

I am of the opinion that no trust can be established in favor of the defendants. Deeds were executed from the son to the mother for an expressed consideration, habendum to her use. Under the eases, therefore, the property became hers absolutely. Down v. Down, 80 N. J. Eq. 68; Andreas v. Andreas, 84 N. J. Eq. 375; Sayre v. Lemberger, 92 N. J. Eq. 656. I do not see how a resulting trust can be established, and the allegations of fraud are not sufficient to establish a constructive trust. The establishment of a constructive trust must be evidenced by something stronger than a mere breach of an oral promise to convey or to hold in trust.

An oral trust must be established by clear and positive evidence, which in this case appears to me to be lacking.

I shall therefore advise a decree dismissing the amended answer and counter-claim and directing that the suit in partition proceed.


author: Ingersoll, V. C.

text:
    Harvey F. Carr, receiver of West Jersey Mortgage Company, v. Sterling Realty Corporation and Victor Corporation.
    [Submitted October 15th, 1922.
    Determined November 9th, 1922.]
    The defendant Sterling Realty Corporation, being indebted to complainant as receiver of the West Jersey Mortgage Company, entered into an agreement with the receiver, in which, among other conditions, agreed as follows: “The Sterling Realty Corporation hereby grants, conveys and assigns to the receiver an interest in the net profits of * * * real and personal property, * * *, as well as to the net proceeds of a sale of the real and personal property. Such interest hereby granted, conveyed and assigned to the receiver is a right to participate to. the extent of forty three hundred and fortieths of the net profits and in the net proceeds of a sale of said real estate and personal property.”—Held (1), said agreement did not convey a fee in an undivided forty three hundred and fortieths of said real estate; (2) that in the absence of fraud or inadequacy of price, the Sterling Realty Corporation had not divested itself of the power to convey; (3) evidence did not prove fraud or that the consideration was inadequate.
    On bill, answer and proofs.

      Messrs. Blealcly & Stoclcwell, for the complainant.

      Mr. Clarence L. Cole, for the defendant Sterling Realty Corporation.

      Messrs. Cassman & Gotleib, for the defendant Victor Corporation.
   Ingersoll, V. C.

The complainant is the receiver of the West Jersey Mortgage Company. In March of 1921, the defendant the Sterling Realty Corporation was the owner of two certain properties at the ocean end of Tennessee avenue in Atlantic City. The property situated on the inland side of the boardwalk (a public street of the city) was known as the Alamae Hotel, consisted of a hotel of that name, with stores on the boardwalk level; the property oceanward of the boardwalk was known as Young’s Ocean Pier.

The Sterling Eealty Corporation was indebted to the complainant in an amount exceeding $125,000, which indebtedness was evidenced by a decree in this court in foreclosure proceedings instituted by the Guarantee Trust Company as trustee; after the payment of the trust company decree, amounting approximately to $511,000, the complainant was entitled to be paid a sum which, with interest, amounted to $37,755.78, and as the owner of bonds of said Sterling Eealty Corporation, of the par value of $84,000, under a subsequent mortgage securing an issue of $170,000, upon which arrears of interest was due.

The said hotel and pier had under said decree been advertised for sale by the sheriff of Atlantic county, which sale had from time to time been adjourned.

The Sterling Eealty Corporation had arranged to sell the Young’s pier for the sum of $450,000 and to refinance the liens on the Alamae Hotel by placing a real estate and chattel mortgage for $500,000.

On March 24th, 1921, the Sterling Eealty Corporation and Harvey E. Carr, receiver of West Jersey Mortgage Company, entered into an agreement in which, after recital of the above-stated facts, and a clause stating it to be to the material advantage of the parties thereto that the mortgaged-premises should not be sold under the decree of foreclosure, and for and in consideration of one dollar each to the other paid, the Sterling agreed—-

(2) That it would “cause the decree of the Guarantee Trust Company, trustee, to be paid and satisfied.”

(3) To sell the pier property for $450,000.

(4) a. To create a new mortgage o'f $500,000 on the Alamae Hotel and chattels thereon, payable in ten years, and to pay all existing mortgage liens upon said premises.

b. To execute to the receiver a bond and mortgage of $33,000, payable within three year’s and in installments of at least $5,000 a year.

c. $42,000 participation in a bond issue of $85,750 secured by a mortgage to the Guarantee Trust Company, as trustee, on the hotel property, and

(6) “The Sterling Realty Corporation hereby grants, conveys and assigns to the receiver an interest in the net profits of the said real and personal property, after deducting all carrying charges, including repairs and necessary expenses in the management thereof, and any sums paid on account of the principal of the thirty-three thousand ($33,000) mortgage above referred to, as well as to the net proceeds of a sale of the real and personal property. Such interest hereby granted, conveyed and assigned to the receiver is a right to participate to the extent of forty three hundred and fortieths (40/340) of the net profits and in the net proceeds of a sale of said real and personal property; it being the intention of the parties that the rights of the receiver to share in the profits and proceeds of the sale of said property shall be the same as though the receiver was the holder of stock of the Sterling Realty Corporation of a par value of forty thousand ($40,000) dollars out of an issued capital stock of three hundred and forty thousand ($340,000) dollars.”

Other covenants concerning taxes, &c.,. were also included.

The receiver agreed, in consideration thereof, to cancel his decree and to surrender to the Guarantee Trust Company, trustee, the bonds of $84,000. The agreement was duly proven and recorded in the clerk’s office of Atlantic county.

On September 1st, 1921, the Sterling Realty Corporation entered into an agreement with the defendant Victor Corporation for the sale of said Alamac Hotel for the sum of $1,100,000, to be paid as follows: $50,000 in cash on signing of agreement; $500,000 by assuming the Guarantee Trust Company, as trustee, mortgage of $500,000; $400,000 purchase-money mortgage at any time within ten years, in installments of not less than $10,000 at interest bearing periods; first payment on September 1st, 1923. Interest at six per cent.; $150,000 in cash on March 1st, 1922.

In accordance with this agreement, the sale was made to and the consideration paid by the defendant Victor Corporation. The receiver had given notice both to the Sterling Corporation and the Victor Corporation of his claim that such a conveyance could not be made without his consent.

The bill prays:

2. Eor an accounting of the-receipts from the operation of the hotel.

3. Eor an accounting of the said sale.

4. Eor a decree setting the said conveyance aside.

5. Eor an injunction enjoining the Victor Corporation from conveying, mortgaging or disposing of said property.

7. Eor further relief.

The contention of the complainant is that by virtue of clause 6 of the agreement he acquired an equitable title or estate in all of said property, real and personal, and that the defendant Sterling Realty Corporation, holding the legal title to said property, became and .continued to be trustees for complainant in respect thereof. That the beneficial interest acquired by the receiver was co-extensive with the Ala-mac Hotel property and equal as to rights with the Sterling Realty Corporation itself, and that without his consent no conveyance could be made by the Sterling Realty Corporation of the said beneficial interest, which was forty-three hundred and fortieths.

It will be noticed that clause 6 referred to combined two objects:

1. An interest in net profits.

2. An interest to the net proceeds of a sale and repeats these phrases three times. It must be conceded 'that a sale was contemplated before a distribution could be made and that unless the terms of this agreement resulted in a convejrance of an undivided forty-three hundred and fortieths interest in said land and chattels by the Sterling Realty Corporation to the receiver, the power of sale remained in the Sterling corporation.

There is nothing in the agreement or in the evidence before the court that the Sterling Realty Corporation divested itself of the right to operate the hotel (which is admitted by the complainant), or the power of ownership and the rights to convey, provided it paid to the complainant the forty-three hundred and fortieths of the net profits of the operation and the forty-three hundred and fortieths of the net proceeds of a sale; providing, always, it acted honestly and without fraud as to the interest of the complainant.

In Braddock v. Hinchman, 78 N. J. Eq. 270, the facts created a joint adventure, and not an “equitable lien,” and the effect of the agreement was'to give complainant a potential interest in the land, enforceable in equity.

Ross v. Stevens, 45 N. J. Eq. 231, was also a case of joint adventure. The complainant was entitled to one-half of the profits made by the defendant on the sale of land. Fo question was raised as to the power of defendant to make sale. He was compelled to account.

Warwick v. Stockton, 55 N. J. Eq. 61. Joint adventure in manufacture and sale of a patented article. The defendant was held to continue to be the legal and equitable owner of the whole plant and business, and had the full control thereof, subject to the duty to account.

Counsel has not called attention to any case in point in our state. Braddock v. Hinchman, supra, cited, does not involve the point at issue.

In Jones v. Davis, 48 N. J. Eq. 493, Davis purchased a hotel property in Atlantic City and executed a declaration that he held the same, subject to the interest of Jones, “the interest of Jones was a one-half interest in the net profits from sale of said property.” Vice-Chancellor Green said: “Here is a distinct' recognition of Jones’ interest in the property and that Davis holds the title.subject to such interest. * * * That they were not partners requires no argument or citation of authority. Feither did Jones’ interest in the venture prevent Davis’ conveyance in good faith of any portion of the property.” An accounting was had.

In Pennsylvania, in 1890, Mr. Justice McCullum, in the case of Hentz v. Pennsylvania Company, 134 Pa. St. 343, in construing an agreement worded as follows:

“This agreement, between James J. V-an Syekel, of Philadelphia, of the first part, and Jacob Hentz, of Philadelphia, of the second part, witnesseth, that for and in consideration of the sum of one dollar paid by the said party of the second part to the said party of the first part, the receipt of which is hereby acknowledged by the said party of the first part, the aforesaid party of the first part agrees to pay over to the said party of the second part one-fourth of the profits which he the said party of the first part may at any time realize by the sale of or by the revenue arising from his undivided half part of a certain tract of land situated in Shippen township, McKean county, State of Pennsylvania, being in warrant 5,463 and containing six hundred acres, and this day purchased by the said party of the first part, from James Duffy, of Marietta, Daneaster county, state aforesaid; the said party of the second part hereby agreeing to pay one-fourth of the loss, if any, which may arise from the sale of said tract of land. The cost of the aforesaid undivided half part of said tract of land being forty-five hundred dollars,”

said: “It was not the intention of the parties to this agreement that Hentz should become the owner of one-fourth of the undivided one-half which Van Syekel held, but that he should acquire the right to demand and receive one-fourth of the profits which Van Syekel might realize from the use and sale of the land,” and allowed an accounting.

In Howard v. Holmes (Court of Appeals, D. of C., decided June 5th, 1922), 281 Fed. Rep. 597, when one joint owner of property conveyed his interest in the property to her co-owner, an agreement that'if the-purchaser should thereafter sell the property at a price in excess of the appraised valuation, he would share with the vendor the profit resulting therefrom, does not make the conveyance a mortgage, creating a right to foreclose and that the right of the co-tenant depends upon the will of the purchaser, since the time and terms of the sale reside in his discretion, and equity will not compel the purchaser to sell and share the profits unless the available price is such that the refusal to sell would shock the conscience of the court.

The receiver has, ever since the execution of the agreement, insisted that the effect thereof was a conveyance to him of forty-three hundred and fortieths interest in the hotel property.

What we have to consider is this, what under the contract between the parties are the rights which that contract has, inter se, given to one against the other ? The wording of the agreement does not sustain the contention of the complainant. It was not the intention of the parties as expressed in the agreement that he should become the owner of that undivided interest; but that he should acquire the right to receive forty-three hundred and fortieths of the net profits and forty-three hundred and fortieths of the net proceeds of the sale.

The result is that the Sterling corporation had the power to convey the lands and premises conveyed to the Victor Corporation without the consent or joinder of the complainant, unless there should be found fraud in connection therewith, or unless the price and terms were inequitable to the complainant.

While it is true that the receiver did not promptly receive information asked for by him concerning the conduct of the affairs of the company, that the receiver notified the company he had an offer of a greater amount than the Victor Corporation was to pay, no fraud has been shown.

Evidence was produced to show that after the sale to the Victor Corporation the'rentals of the stores composing the front of the hotel property were greatly increased, in some cases one hundred ‘or moré per cent.; it was also shown that the condition of the hotel (the rental of which composed a very large proportion of the rental value of the property) was such that it could not be rented at all without an expenditure for repairs of approximately $200,000, which could not have been made by the Sterling Realty Corporation.

There can be no doubt that the parties must act with the utmost good faith toward each other and must conduct it (the business) with an honest and faithful endeavor to make it successful and profitable (Warwick v. Stockton, supra,) and owe to each other the utmost good faith and most scrupulous honesty.

While it might be said that the terms of the sale as to length of time the mortgage should run were unreasonable as to the complainant, it was stated in court by the defendant that an accounting of the proceeds of the sale would be made by the defendant in cash, and it is unnecessary to determine this point.

There is no proof of fraud on the part of the defendant Sterling Bealty Corporation. The price received was not grossly inadequate or unfair and unreasonable.

The defendant Sterling Bealty Corporation must account to ihe complainant for the net profits of the hotel and for the net proceeds of the sale.

No reference will be made at this time however. The defendant Sterling Bealty Corporation will render within ten days to the complainant the accounting above referred to and the complainant may, within ten days thereafter, file exceptions thereto, and it will then be determined whether a reference need be made.


author: Stevenson, Advisory Master.

text:
    Inez D. Ysern, an infant, by Agnes S. Ysern, her next friend, petitioner, v. George Horter, defendant.
    [Decided August 23d, 1922.]
    1. A so-called voidable marriage, that is to say, a marriage which one of the parties during the lifetime of both has the option by a decree to have declared void al) initio, is, until such decree is made a valid marriage, rendering each party incapable of marrying a third party, and any attempted marriage to a third party founds an indictment for bigamy.

      2. Where a complainant wife before final disposition of a suit for annulment undertook a marriage to another, her bigamous marriage did not affect her right to a decree annulling her first marriage with the defendant, as such indiscretion or crime had no relation to the nature of her marriage with the defendant, and could not affect any remedy which she might have to be relieved from the fraudulent marriage which constitutes her grievance in this case.
    3. Where a wife brought suit for annulment on the ground of fraudulent marriage and was granted a decree nisi, and before final decree remarried her husband, such second marriage was absolutely inoperative so far as it attempted to originate and create at that time, the status of marriage between the parties, for the reason that they were already united by a legal and valid marriage, and they would remain so until a decree of nullity.
    4. A second marriage between the same parties without intervening divorce creates the legal status of marriage for the first time if the former marriage was void, but if the prior marriage was voidable only, the second marriage operates as a most solemn ratification relating back to the date of the prior voidable marriage and as against the parties themselves, and as against the whole world, renders the voidable marriage absolutely valid ab initio.

    •5.. Where- a wife brought suit -for divorce -on the ground of a fraudulent marriage, and a decree nisi was entered, and before final decree she attempted to contract a marriage with another with whom she lived for about seven months, and subsequently and before the confirmation of the decree nisi remarried the defendant, such ceremony of marriage and their subsequent cohabitation amounted to an absolute ratification on the part of the petitioner of the original so-called voidable marriage which at the time of the second marriage she was suing the defendant to hare annuled.
    6. Where a wife brought suit for divorce on the ground of a fraudulent marriage, and a decree nisi was entered, and subsequently and before confirmation she attempted to contract a marriage with another and lived with him for about seven months, and then, and still before the confirmation of the decree nisi she remarried the defendant-— Sold, that she was not entitled to an absolute decree annulling her first marriage to the defendant on the ground that if 'her first marriage was induced by fraud, her subsequent marriage to the defendant was an absolute ratification thereof.
    7. Where in a wife’s suit for annulment «¡n the ground of fraud a decree nisi was entered, and -before confirmation -the wife undertook to contract a marriage with another, with whom she lived for several months, and still before confirmation she remarried the defendant without intervening divorce, the fact of duress, which she alleged was the cause of her second marriage to the defendant, must be established in court where the witnesses can be cross-examined by counsel or by the court, or by a master upon a reference of the case back to him, and cannot be established by the em parte affidavit of the petitioner.

      8. Under such circumstances her attempted secret marriage during the pendency of the nullity suit, and her whole conduct, indicated a disregard of the obligations and of the proprieties .and decencies of life which discredited her credibility as a witness so^ as not to support her claim that her second marriage with the defendant was under duress and threats of prosecution for bigamy, and cannot sustain a decree of divorce.
    On application for an absolute decree of nullity of marriage.

      Mr. William M. Rysdylc, for the petitioner.

      Mr. William Mayo Atkinson, for the defendant Ewers.
   Stevenson, Advisory Master.

My conclusion upon the application on behalf of the petitioner for an absolute decree, made subsequent to the entry of the decree nisi on January 7th, 1920, is that the proofs as they stand show “sufficient cause” to the court why the decree nisi should not be made absolute, and that if no further proofs are taken the decree nisi should be vacated and the petition dismissed.

The facts which constitute the “sufficient cause” above referred to are set forth in the sworn petition for an absolute decree presented to the court by the petitioner. Only some of these facts need be repeated here. This application, at the suggestion of the court, was made by petition because of the complicated situation created by the two marriages entered into, or attempted to be entered into, by the petitioner after the commencement of this suit, all of which matters were unknown to the special master who heard the case ex parte, and were brought to the notice of the court by the solicitor of the petitioner in performance of a duty to the court and to the state which he recognized and fully discharged.

The case in brief, without reciting the facts at length, is as follows:

The suit for nullity was conducted to a finish and the marriage between the petitioner and Horter was adjudged voidable upon the suit of the petitioner on the ground of fraud, the marriage not having been consummated or ratified. Ysern v. Horter, 91 N. J. Eq. 189. Down to the entry of the decree nisi on January 7th, 1920, neither the solicitor for the petitioner, the special master who heard, the case ex parte, nor the vice-chancellor to whom the master’s report and advisory opinion were referred for final disposition, had any notice of the petitioner’s marital transactions between the time of the commencement of the suit and the time of the decision of the cause by the vicerchancellor and the entry of the decree nisi. In fact it was disclosed to the court, just in -time to prevent the entry of the absolute decee as a matter of course, that on March 19th, 1919, about three months and a half after the commencement of this suit, the petitioner had undertaken to enter into a ceremonial marriage in the State of New York with one Waldo I. Ewers. The petitioner and Ewers cohabited in New Jersey and in California, where they passed as man and wife, for different periods until about November, 1919, when they finally separated.

On April 18th, 1920,- Horter induced the petitioner to enter into a regular ceremonial marriage by the rector of St. Nicholas Roman Catholic Church, in Passaic, to whom they exhibited the record from the registrar of vital statistics of Rutherford, New Jersey, of their prior marriage by a Protestant minister, stating that they desired to be married according to their own faith. The Roman Catholic priest thereupon married the couple according to the ritual of his church, requiring no license because of the certificate of the former marriage, and thereafter the couple cohabited for some weeks or months. The fact of this ceremonial marriage is proved by the ex parte affidavit of the rector of St. Nicholas Roman Catholic Church, offered in evidence on behalf of the petitioner. There is nothing on the face of this affidavit which in any way intimates that the couple who were married were not acting voluntarily, uninfluenced by fraud or coercion.

It will be observed that the attempted marriage of the petitioner and Ewers was made while this suit was pending and before the master’s report was made. The fact of the marriage to Ewers is proved not only by the sworn petition of the petitioner but also by an exemplified copy of the record of .the marriage and official papers connected therewith in the public office in the city and county of New York where such records are kept. This record was offered in evidence on behalf of the petitioner.

1. The marriage between the petitioner and Ewers was and is absolutely void at the common law. No decree or even attempted disaffirmance by the petitioner was necessary to establish the invalidity of this marriage ab initio, nor could the parties in any way ratify or confirm the marriage. The authorities are in accord that a so-called voidable marriage, that is to say, a marriage which one of the parties during the lifetime of both has the option by a decree to have declared void ab initio, is, until such decree is made, a valid marriage, rendering each party incapable of marrying a third party, and any attempted marriage to a third party founds an indictment for bigamy. State v. Yoder, 113 Minn. 503; S. C., L. R. A. 1916 c. 686 et seq. and notes; Schoul. Dom. Rel. 24; 1 Bish. M., D. & S. § 259; 2 Nels. D. & S. § 569.

Whether in ease of a so-called voidable marriage the spouse who attempts to marry a third part is indictable or punishable for bigamy, if the validity of the second marriage is first brought in question after a decree annulling the first marriage, we need not inquire, if there is room for such inquiry. In the instant case the so-called marriage of the petitioner with Ewers was entered into before any decree annulling her first marriage with Horter had been made, or could be made, and no ratification or confirmation of her marriage with Ewers was at any time made by her, nor was such confirmation or ratification at any time possible, because no absolute decree annulling the petitioner’s first marriage with Horter as yet has been made.

2. The bigamous' marriage of the petitioner with Ewers does not affect her right to a decree annulling her first marriage with the defendant, Horter. Such indiscretion or crime committed by her has no relation to the nature of her marriage with Horter, and cannot affect any remedy which she may have to be relieved from the fraudulent marriage which constitutes her grievance in this case. All questions growing out of her attempted .marriage with Ewers, including the status of the child born July 2d, 1920, and said to be the child of Ewers, and any reckoning which she must make with the State of New Jersey upon an indictment for bigamy, are left unaffected, whatever the disposition of this instant case may be. The petitioner’s adultery has no more connection with her injury by the defendant, Horter, than any other crime committed by her would have. G. v. M., 10 App. Cas. 171; 2 Bish. M., D. & S. § 1275; 2 Nels. D. & S. § 687.

3. The ceremony purporting to be a marriage between the petitioner and Horter, performed by the clergyman on April 18th, 1920, in my judgment, must be deemed absolutely inoperative so far as it attempted to originate and create at that time the status of marriage between these parties. They were already united by a legal and valid marriage, and they would remain so united until an absolute decree of nullity should be made by this court in this suit which was then pending. The existence of a so-called voidable marriage, which one of the parties is prosecuting a suit to have declared void ah initio, seems to me not only to incapacitate either party to enter into a marriage with a third party, but also to incapacitate both to create the marriage state between themselves by any new ceremony. A couple who are married already cannot marry each other a second time.

4. We now come, I think, to the crux of this case which is presented by the question whether this second attempted marriage of the petitioner and Horter amounted to a ratification of the first marriage.

It often happens that a couple living as man and wife, after having gone through a formal ceremony of marriage, entertain doubts as to the validity of such marriage. A large number of different sets of conditions may be stated under which a couple living as man and wife are led, perhaps by the advice of counsel, to entertain such doubts. They resort to a second ceremony of marriage, there being no question that at the time of such ceremony any impediment to the former attempted marriage has ceased to exist.

It seems to me that in the case stated the result is that if the prior attempted marriage was in fact absolutely void, the second ceremony creates the legal status of marriage between the parties for the first time. On the other hand, if the prior marriage was voidable, the second ceremony operates as a most solemn ratification, relating back to the date of the prior voidable marriage, and as against the parties themselves and as against the whole world, rendering the voidable marriage absolutely valid ah initio.

5. My conclusion upon the facts so far stated is that this subsequent ceremopy of marriage of the petitioner and Horter, and their subsequent cohabitation, amounted to an absolute ratification on the part of the petitioner of the original so-called .voidable marriage, which at the time of the second marriage she was suing the defendant, Horter, to have annuled. In other words, in the most solemn manner the petitioner abandoned her attempt to have her original marriage with Horter declared null and void and elected to ratify that marriage.

The result so far would be that the petitioner cannot be entitled to an absolute decree annulling her first marriage with Horter. Of course, a so-called voidable marriage, which the injured party has the option to have declared void ah initio during the lifetime of both parties, may at any time before the final decree of annulment be ratified and confirmed. If such subsequent ratification is in any way brought to the attention of the court and duly proved, the court of its own motion, if necessary, will decline to make a decree of nullity.

6. The one question which remains arises from certain facts alleged in the petitioner’s petition for an absolute decree. This petition alleges that the second ceremony of marriage and subsequent cohabitation of the petitioner with Horter were produced by duress inflicted upon her by Horter, whereby without consent on her part and through fear of criminal prosecution for bigamy, which Horter threatened to have instituted if she did not yield to him, she was impelled to go through the second ceremony of marriage and thereafter for a time cohabit with him.

The court, however, cannot accept the ex parte affidavit of the petitioner and the oral statements of her counsel in court as a sufficient proof upon which this court can practically declare the so-called marriage ceremony between the petitioner and Horter inoperative as a ratification. I do not hold that this second ceremony of marriage created a voidable marriage between these parties because, as above stated, they were man and wife airead}', and would remain such until a final decree of nullity in this present suit should be made. I do not think that any direct suit in rem. to have this second attempted marriage declared a nullity would be necessary in oi;der to render it ineffective as a ratification. A second ceremony of marriage between parties who already stand-in the position of man and wife owing to a voidable marriage between them already existing, according to well-settled principles, is as inoperative as a marriage as in the case where the prior marriage between the parties was obsolutely valid. The sole question for investigation in regard to the nature and effect of the second ceremony of marriage is whether such ceremony followed by cohabitation for a considerable- period of time effected not the establishment as of that date of the marriage state, but an absolute ratification by the petitioner of the first marriage, which until such ratification as to her had been voidable.

The difficulty is that with a presumption of solemn ratification established in this case so as to defeat the petitioner’s suit for nullity, the court is asked 'to accept merely the ex parte affidavit of the petitioner to establish the important fact that this presumptive ratification was inoperative on account of duress. The fact of duress must be established in court where the witnesses can be cross-examined by counsel or by the corirt, or, as this was an ex parte case originally, by the master, upon a reference of the case back to him.

In this ease it appears that the testimony of the petitioner is greatly discredited. Her attempted secret marriage to Ewers, when presumably she knew that her suit for nullity was pending against TIorter, and her second marriage with Horter—her whole conduct in this complex of matrimonial relations, which she rashly created—indicate a disregard of obligations and of the proprieties and decencies of life which I think affect her credibility as a witness.' Moreover, it appears from the record of the license to marry in the State of New York, applied for by Ewers and the petitioner and put in evidence on behalf of the petitioner, that the petitioner, for the purpose of obtaining such license, swore that the marriage with Ewers for which she applied for a license would be her first marriage and that she had no “former husband or husbands, living or dead.”

In view of the unusual course of procedure in this case, and the manner,in which new issues have been injected into it after the entry of the decree nisi, I will hear any application on behalf of the petitioner, in case she desires to make one, to have an investigation made, either in open court or by the master, of the question whether the second ceremony of marriage with Horter was or was not a ratification of the first marriage which was declared null and void ab initio on the ground of fraud by the decree nisi. Notice of such application must be given to any solicitor representing Mr. Horter, of whom the solicitor for petitioner has notice, and to the solicitor who at one time heretofore represented Mr. Ewers, and also to Mr. Horter and Mr. Ewers personally, if they or either of them can be found in this state, and if they or either of them cannot be so found, then by mailing such notice to their or his post-office address if the same upon due inquiry can be ascertained. The motion may be noticed before me as advisory master for any Tuesday, Wednesday or Thursday at the chancery chambers in Paterson. If no application shall be made by October 1st, 1922, an order will be made in accordance with "the views set forth in this memorandum.

Note.—This case having been before Hon. Eugene Stevenson as vice-chancellor (91 N. J. Eq. 189), it was referred to- him. as advisory master after the expiration of hi® term as vice-chancellor.—Rep.


author: Walker, Ordinary.

text:
    In the matter of the application for the probate of the last will and testament of Daniel Vincent Harrison, deceased.
    [Decided October 13th, 1922.]
    1. Probate of a will in solemn form is not a matter of absolute right, but rests in the sound discretion of the court; and is only allowed when a proper case for such action is presented on good ground shown, such as when it is made to appear that .a fair ground exists for contesting the validity of the will.
    2. IVihen all of the parties interested in the proof of a will, being sui juris, have in writing signified their acceptance of the testament, and consented to its probate, they have signified their intention not to contest its validity ; and probate of such a will in solemn form will be denied.

      3. Applications for the probate of wills may be made directly to vice-ordinaries without special reference to them by the ordinary, in virtue of the supplement to the Prerogative Court act (P. L. 1913 p. 81), and prerogative court rule 56.
    On application for proof of will in solemn form.

      Mr. Robert II. Boyd, Jr., for the application.
   Walker, Ordinary.

A petition has been filed by the Montclair Essex Trust Company and Benjamin V. Harrison, of Montclair, executors named in a paper-writing purporting to be the last will and testament of Daniel V. Harrison, late of Montclair, in the county of Essex. The petition shows who are the only heirs-at-law and next of kin of the deceased, all of whom are of full age. All of these heirs-at-law and next of kin, being the only parties interested in the probate of decedent’s will, have joined in a written instrument reciting the death of testator, setting forth that they are his only children (heirs-at-law and next of kin), and requesting that his will be duly admitted to probate, and consenting to the probate of the same and to the issuance of letters testamentary upon the estate cl decedent to the executors named. This instrument, which is improperly endorsed “Renunciation,” was acknowledged by the parties thereto as in the case of acknowledgment of deeds of conveyance of lands The petitioning executors aver that they desire that proof of the will should be taken in solemn form. This to me seems singular in view of the fact that all of the parties in interest in decedent’s estate as heirs-at-law and next of kin consent to probate of the will

In Staub’s Case, 49 N. J. Eq. 264, Chancellor McGill observed (at p. 265) : “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 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 in solemn form when those in interest are cited to be present at the probation or approbation of the will.”

In re Hodnett, 65 N. J. Eq. 329, Chancellor Magie observed (at p. 337): “So we are justified in the view that the real distinction between the two classes of probate consisted in the facts that one was allowed without notice and the allowance of the other was only upon notice to the parties interested, with opportunity to attend and be heard on the question, of probate.” And (at p. 342): “For these reasons I deem .myself possessed of authority to require an executor who has proved a will before me without notice to prove the same will with notice to. all the parties whenever a proper case for such action is presented. The remaining question is, what is a proper case requiring such action?” and (at p. 343): “Under our practice, pursuant to which a contest may be raised by anyone interested by caveat or appeal, I think probate in solemn form ought not to be compelled, except upon some good ground shown.” And (at p. 344) : “It will be sufficient to justify the ordinary in requiring probate on notice if there is made to appear to him a fair ground for contesting the validity of the will in respect to its execution, or the testamentary capacity of the testator, or as to the will being the product of undue influence.”

Along with the petition a form of order has been presented reciting the death of the testator, the making of his last will and testament appointing the petitioners executors thereof, reciting the names of decedent’s only heirs-at-law and next of kin, and that they have requested that said will be admitted to probate, and consent to the probate thereof and to the issuance of letters testamentary thereon, and ordering that a certain day be fixed at the chancery chambers in Jersey City' where petitioners may present the said will and proceed to prove the same in solemn form, and that further notice to the heirs-at-law and next of kin may b.e dispensed with. The provisions of this form of order are a contradiction in terms—• permitting petitioners to proceed to prove the will in solemn form, which requires notice, and then providing that notice may be dispensed with; it being the intention, of course, to dispense with notice for the reason that all parties consent.

This is no case for probate in solemn form. As shown above, the object of such probate is to afford an opportunity to the parties interested to be present and oppose probate. It would be perfectly idle to give notice in this ease, because the parties entitled 'to notice that they might object, have solemnly consented to the probate of the will. They could do no more if they were present upon a proceeding for probate in solemn form. The law will not do a vain thing, and when parties entitled to object say they consent, that is an effectual end of the matter. Probate in solemn form is not a matter of absolute right for the asking, it rests in the sound discretion of the court. In the language of Chancellor Magie, supra, it is allowed “whenever a proper case for such action is presented,” and, further, “I think probate in solemn form ought not to be compelled except upon some good ground shown,” and, still further, “it will be sufficient to justify * * * requiring probate on notice if there is made to appear * * * a fair ground for contesting the validity of the will,” &c. Now, the parties interested in the will before me have in the most solemn manner signified their acceptance of the testament, and by their consent to its probate they have notified the court that they do not intend to contest its validity.

Another thing: It is manifest that it is proposed to prove the will before a vice-ordinary at Jersey City, for the convenience of counsel, witnesses and executors. That may be done in this case without any setting down of the cause for hearing, either by me or one of the vice-ordinaries. The office of vice-ordinary was created by P. L. 1913 p. 81, which provides that every vice-chancellor shall be a vice-ordinary, and that the ordinary may refer to any vice-ordinary any cause or matter at any time pending in the prerogative court; and that the ordinary may by general rule provide for the reference of causes, matters and proceedings to the vice-ordinaries. Rule 56 of this court is a general rule, referring, inter alia, applications for the probate of wills and granting of letters of administration to the vice-ordinaries without special reference. If this were a proper case for proof in solemn form, the application could he made to a vice-ordinary at Jersey City instead of to me at Trenton, to set a day for such a hearing at the former place. But, as already stated, this is not a case for proof in solemn form, but one for proof in common form, which will have all of the binding effect upon the interested parties the same as though proof were made in solemn form, because their consent to the probate amorrnts to a waiver of notice, which, therefore, they do not need for their protection, and which would be merely a work of supererogation.

The order applied for will be denied. Petitioners may prove the will in common form as above indicated.


author: Gummere, Chief-Justice.

text:
    In the matter of the estate of Thomas Buzby, deceased.
    [Decided November 20th, 1922.]
    1. Where words of inheritance are used in a will to indicate the beneficiaries of the testator’s personal estate, his next of kin are in-' tended.
    2. The policy of the law requires that legacies be held to be vested rather than contingent unless such holding is clearly inconsistent with the testator’s intention.
    3. When the absolute property in a fund is bequeathed in fractional interests in succession at periods which must arrive, the interests of the first and subsequent takers vest together, unless a contrary purpose is apparent from the language of the will.
    4. In a bequest to the testator’s next of kin, those standing in that relation to him at the time of his death are the persons intended.
    On appeal from a decree of the prerogative court advised by Vice-Ordinary Learning, whose opinion is reported in 93 N. J. Eq. 411.

      Mr. William M. Clevenger, for the respondent.

      Messrs. Leap, Sharpless & Way, for the appellant.
   The opinion of the court was delivered by

Gummere, Chief-Justice.

Thomas Buzby died in 1901, leaving surviving him Lis widow and three children. He left a will, by the terms of which he disposed of his residuary personal estate in the following words:

“I give and bequeath unto my beloved wife during her natural life, or while- she remains my widow, all and singular the residue of all my personal estate of whatsoever kind I may be possessed of at the time of my decease, and after her death or marriage, to such person or persons as would by law inherit the same.”

His widow died in March, 1921, never having remarried. Two of the testator’s children survived her, and the third died during her lifetime, leaving a will, by which she bequeathed all her interest in her father’s estate to her husband. Upon the final accounting of the testator’s estate it was insisted before the orphans court of Cape May county (the testator having been a resident of that county at the time of his death), on the part of her husband, that he was entitled, to her share of the estate. The two living children resisted this contention, asserting that they alone were entitled to share in the distribution. The orphans court considered that the deceased daughter had taken an interest in the estate of her father, which vested in her at his death, and that therefore her husband was entitled to receive her share in that estate. From the order entered on this finding, the two living children appealed, and on the hearing of that appeal the order of distribution was reversed, upon the ground that the deceased daughter’s share in her father’s estate was contingent upon her surviving his widow. From that order of reversal the present appeal is taken.

It is very properly conceded that the testator intended- that the estate in remainder should go to his next of kin, notwithstanding the use of the word “inherit;” for it is a settled rule of construction that, where words of inheritance ' are used by a testator in his will to indicate the persons who are to be the beneficiaries of his personal estate, the next of kin are intended. The cases establishing this rule in our courts are cited in the opinion of the learned vice-ordinary. The question for decision, therefore' is whether the gift of the remainder to testator’s next of kin was intended to be vested or contingent; that is, whether it was intended that those of his children who survived him, or their next of kin or legatees, in case of death during the life of the widow, or before her remarriage, should take after the happening of the one or the other of these events, or whether he intended that only those of his children who should be living at the time of the widow’s death or remarriage should share in the distribution.

The policy of the law requires that legacies in all cases, unless clearly inconsistent with the intention of the testator, should be held to be vested rather than contingent. Van Dyke’s Admr. v. Vanderpool’s Admr., 14 N. J. Eq. 198; Neilson v. Bishop, 45 N. J. Eq. 473; Clark v. Morehouse, 74 N. J. Eq. 658. And so, in furtherance of this policy, it is gnerally held that when the absolute property in a fund is bequeathed in fractional interests in succession at periods which must arrive, the interests of the first and subsequent takers will vest together; and this rule of construction is always applied when it is apparent from the terms of the will that a future gift is postponed to let in some other interest, such as a life estate. Howell, Exr., v. Green, Admr., 31 N. J. Law 570; Tuttle v. Woolworth, 62 N. J. Eq. 532; Kinkead v. Ryan, 64 N. J. Eq. 454; Clement v. Creveling, 83 N. J. Eq. 318. A devise or bequest in a will, giving a life estate to the widow with remainder to the next of kin, is equivalent to saying, “I give this property to my wife and next of kin, she to have it during her life and they to have it after her death.” Howell, Exr., v. Green, Admr., supra. But this rule does not apply where it is apparent from the language of the will that it was the testator’s purpose that the gift of the remainder should not Test until after' the remarriage or death of the life tenant; and it is argued by counsel for the respondent, and it was considered by the Tice-ordinary, that such an intention appeared from the use of the words “to such person or persons as would by law inherit the same,” in describing the legatees who should receiye the estate at the death or remarriage of testator’s widow. In so holding, the learned yice-chancellor followed a recent decision of the court of chancery in the case of American Builders’ Corporation v. Galligan, 93 N. J. Eq. 51, the theory of that decision being that the use of the word “would.” in the clause, “would by law inherit,” imported the death of the life tenant as the time referred to by the testator for the Testing of the estate in remainder. We cannot concur in this view. The persons who “would by law inherit” a testator’s estate are those who would take it under the statute of descents or the statute of distributions in case he had died intestate. Such persons take by law and not by deyise or bequest. Substituting for the words used their equiyalenfc, the bequest of the estate in remainder is “to those who would take under the statute of distributions in the eyent of my dying intestate,” as to the estate in remainder; in other words, “my children, who are my next of kin.” The legal relation or status of heirs-at-law and next of kin arises immediately upon the death of the ancestor; and, therefore, in a bequest by a testator to his next of kin, those standing in that relation at the time of his death are the persons intended. Tuttle v. Woolworth, supra, 538. The testator haying bequeathed his residuary personal estate to his wife and children, and there being nothing in the language used by him to indicate that the gift to his children should not Test until after their mother’s remarriage or death, the general rule of construction is applicable; and, this being so, the decree under reyiew must be reyersed.

For affirmance-—None.

For reversal—The Chiee-Justice, Swayze, Parker, Bergen, Minturn, Black, Katzenbach, White, Williams, Gardner, Ackerson, Van Buskirk—12.