author: Katjsch, J.

text:
    Catherine I. Ward, appellant, v. J. Henry Harrison, as executor of the last will and testament of Eliza C. Bishop, deceased, respondent.
    [Decided February 19th, 1925.]
    1. If a testator is capable of recollecting of what his property consists. and who, in consequence of ties of blood or friendship, should be the object of his bounty, and has a mind sufficiently sound to enable him to know and to understand what disposition he wants made of his property after his death, he is competent to make a will.

      2. Where a testatrix, seventy-eight years old, was filthy in her habits, slovenly in her dress, careless in her deportment in the presence of company, detailed her youthful exploits in affairs of gallantry, and recounted with zest her recollection of events of her childhood days, was garrulous, and, at times, peevish and stubborn, these facts are not inconsistent with her being possessed of sufficient mental capacity to execute a valid will, when she, unassisted, furnished the information to her lawyer as to what individuals and charitable institutions were lo be the object of her bounty, and what amount of money- or species of property each was to receive and to what extent, and, when the will was read to her, corrected some mistakes therein, and when she kept a draft of the will eight years in her possession, making some annotations of changes therein.>
    3-, Where one actively participates in the drawing of a will, who is the chief beneficiary thereunder, he is not presumptively chargeable with undue influence, which means an imposition upon the testator, and whether or not there was imposition, must be disclosed by other circumstances and conditions than the mere drafting of a will and being a beneficiary thereunder.
    On appeal from a decree of the prerogative court advised by Vice-Ordinary jBackes and reported in 90 -N. J. Eq. 595, sub nom. In. re Bishop.

      Mr. L. Edward Herrman (Mr. Elmer E. Wigg, of counsel), for the ajipellant.

      Messrs. Osborne, Cornish & Belied', for the respondents.
   The opinion of the court was delivered by

Katjsch, J.

This is an appeal from a decree of the prerogative court, affirming a decree of the Essex county orphans court, admitting to probate a will and codicil thereto, of Eliza C. Bishoj), deceased, as her last will and testament. .

The attack made upon the validity of the will by the caveatrix, Catherine I. Ward, a grandniece of the testatrix, was and is—(1) mental incapacity at the time of the making and execution of the will, on December 9th, 1914; (2) undue influence.

As to the claim that the testatrix was mentally incapacitated to make and execute a valid will and codicil, our attention lias not been directed to any testimony in the cause which goes to the extent of establishing- that at the time the two instruments were made and executed, by the testatrix, she did not possess sufficient mental capacity to know the extent of her estate, and to sum up the natural objects of her bounty. While it is true that she was seventy-eight years of age at the time when she executed her will, and was five years older when she executed the codicil, nevertheless, it appears that she. unassisted, furnished the information to Mr. Church what individuals and charitable institutions were to be the objects of her bounty, what amount of money or species of property each was to receive, and to what extent.

The will contains some thirty-one bequests, the legatees being two nieces of the testatrix and her grandniece, the caveatrix, and nephews, nieces and cousins of her husband, and her friends, including several clergjonen. not forgetting her faithful servant, Jones, and his brother, and various charitable institutions.

Eor the appellant it is contended that she was afflicted with senile dementia at the times when the will and codicil were executed. But, be this as it may, we cannot omit to take into account her activities in and about her own affairs, for it is quite apparent that whether she was senile, or a senile dement, the decay of her mental faculties had not reached that stage which would render her incompetent to execute a valid will.

We approved the rule adopted by Vice-Ordinary Van Fleet in Bennett v. Bennett, 50 N. J. Eq. 439 (at pp. 445, 446), where that learned jurist says: “By our law the right of testamentary disposition may be exercised by a person of very moderate capacity. He must have a sound and disposing mind and memory, but his memory may be very imperfect; he may not be able, at all times, to recollect the names, the persons or the families of those with whom he has been intimately acquainted; he may at times ask idle questions and repeat those which have been asked and answered; he may not have sufficient strength of memory and vigor of intellect to digest all parts of a contract, and yet be competent to make a will. If he is capable of recollecting of what his property consists, and who, in consequence of ties of blood or friendship, should be the object of his bounty, and has a mind sufficiently sound to enable him to know and to understand what disposition he wants made of his property after his death, ho is competent to make a will.”

The circumstances present in the case, siib judica, that the .testatrix became and was filthy in her habits, was slovenly in her dress, careless in her deportment in the presence of company, indulged in detailing her youthful exploits in affairs of gallantry or otherwise, and recounted with zest her recollection of events of her childhood days, and was garrulous, and at times peevish and stubborn, are not inconsistent with her being possessed of sufficient mental capacity to execute a valid will. While all these manifestations taken together ma3 be evidence of mental decay and of moral perversion, they fall short in establishing mental incapacity, in view of the attending circumstances surrounding the preparation of the will, in which the testatrix displayed, not only a keen interest, but an alert mind, evidenced b3i the various character of her bequests by corrections and changes which she suggested, and by the fact that, after she executed the will, for a period of eight years, she continued to manage her estate, without any intimation coming from anyone about her, or interested in her welfare, that, she was mentally incompetent to manage her business affairs, to which, it appears from the evidence, she gave her personal attention. Another significant fact which must not be> overlooked is, that during that period of eight years she had the draft of the will in her possession, which afforded her abundant opportunity to become thoroughly familiar with the disposition she had directed to. be made of her estate after her decease. Furthermore, there were annotations, in the handwxiting of the testatrix, upon the draft of the will, as stated by the eaveatrix’s counsel, who, in referring to the annotations, among other things, stated in the course of the hearing, in the prerogative court, the following: “It-also contains the changes and corrections made by Mrs. Bishop, and I propose to use that as bearing upon her mental capacity.” But we need not pursue this line of thought any further, since the character of the corrections and annotations made on the draft of the will by Mr. Harrison and by the testatrix, not only fails to disclose mental incapacity of the testatrix, but refutes any theory of undue influence having been exercised by Mr. Harrison over the mind and will of the testatrix.

A careful reading and consideration of the testimony make it clear that the charge that the will of the testatrix was the product of undue influence exercised over her by Mr. Harrison, is wholly without any substantial basis.

Much stress is put by counsel of appellant upon the circumstance that the will was prepared and drawn by Mr. Harrison’s law partner, Mr. Alonzo Church, accompanied by the assertion that Mr. Harrison actively participated in drafting the document, and is the chief beneficiary thereunder, and, hence, counsel argues that in such a situation the law cast the burden upon Mr. Harrison to establish by conclusive evidence, that he did not influence the testatrix in her testatmentary dispositions.

But no such case is here before us. Mr. Church testified that he drew the will at the request of Mrs. Bishop, a. telephone message having been received at the office that he should call, and in response 1» the message he called upon Sirs. Bishop about ten days before the will was executed by her; that Mrs. Bishop told him how she desired to make her will, and that he took pencil notes, went back to his office, and from the notes taken the will was prepared; that two weeks later he took the draft of the will to the testatrix to read and she called his attention to several mistakes he had made as to names of beneficiaries, and asked that they be corrected, which was done, and annotations of such corrections were made upon the will; that she reread the will, which was executed in the presence of the witnesses, one of them being the family physician of the testatrix, who had been requested by Mr. Church to be present at the execution of the will; that he placed the will in the office safe.

The fact that there were annotations upon the draft of the will in the handwriting of Mr. Harrison suggestive of some slight changes were of no real significance, for it appeared from the draft of the will produced, on behalf of the caveatrix, that the name of Mr. Harrison did not appear as a beneficiary of the residue of the estate, the space for the insertion of the name of such beneficiary being left blank. Outside of the circumstances just detailed, there was not the slightest testimony tending to show active participation of Mr. Harrison in the drafting of the will of the testatrix.

The courts of this state have not gone to the extent to hold that one actively participating in the drawing of a will, and who is chief beneficiary thereunder, is presumptively chargeable with undue influence. Such a circumstance may or may not be a factor to establish imposition upon the testator, for that is what is meant by the charge of undue influence, and, hence, whether or not there was imposition, must be disclosed by other circumstances and conditions than the mere drafting of a will and being a beneficiary thereunder.

We have been unable, after a close scrutiny of the testimony and circumstances relating to the execution of the will, to find anything, which, even remotely, tends to establish imposition practiced upon the testatrix in making the disposition that she did make of her property.

It is argued, on behalf of appellant, that the reasons assigned by the vice-ordinary, in his. opinion confirming the decree of the orphans court, are at variance with the wrell-settled lawr of this state. But be this as it may,-we are only concerned whether the result reached by the court belowr wras warranted by the evidence, under the application of correct legal principles. We think the result reached wras a correct one.

The mere fact that Mr. Church and Mr. Harrison are gentlemen of good repute and of high standing at the bar and in the community, stamps no greater probative value on their testimony, in a court, than the testimony of the most humble individual, and the criticism of counsel of appellant that the vice-ordinary ignored this equality of witnesses, in speaking of Mr. Harrison, by saying: “His excellent character and his well-earned reputation in the community and at the bar as an upright, honest citizen and lawyer, are sturdy vouchers that his testimony is truthful and believable” is hypercritical. Of course, this statement was wholly unnecessary, as Mr. Harrison’s reputation as an honest citizen and lawyer was net in issue.

As has been already observed, we are not concerned with the reasons which induced the court to reach the conclusion that it did, so long as it appears that under the law and the evidence the result reached was warranted.

The decree of the prerogative court, affirming the decree of the orphans court, is affirmed, with costs.

For affirmance—The Chief-Justice, Teenchard, Parker, Minturn, Kalis ch, Black, Katzenbaci-i, Campbell, Lloyd, Gardner, Van Busktrk, Clark, McGlennon, J J. i3.

For reversal—None.


source: Caselaw Access Project

author: KaTZENBACH, J.

license: Public Domain

text:
    Mary Babirecki, by Stephen Babirecki, her next friend, and Stephen Babirecki, individually, complainants-appellants, v. Andrew G. Virgil, Frances Virgil, Louis J. Virgil and Mamie Virgil, defendants-respondents.
    [Argued October 23d and 24th, 1924.
    Decided January 19th, 1925.]
    1. The statute to protect creditors and others against conveyances made to defraud them extends its protection to all persons having a valid cause of action arising from torts as well as from contracts.
    2. When a tort-claimant has reduced his claim to judgment he may attack a voluntary conveyance made after the liability arose, and before suit was brought to defeat his debt on the theory that such judgment, when once obtained, relates back, and establishes a debt as of the time when the original cause of action accrued.
    3. The burden of proving, when attacked as fraudulent, the consideration of a deed, where no consideration was paid at the time of the conveyance, is upon the grantee.
    4. Cross-examination on matters either directly in issue or directly relevant to the issue is a matter of right, and its exclusion error.

      5. Where testimony which might have been material to the issues involved in the case has been excluded at a hearing in the court of chancery, the case will be sent back to that court for rehearing.
    On appeal from a final decree of the court of chancery dismissing complainants’ bill, advised by Vice-Chancellor Church, whose opinion is repoited in 90 A. J. Eq. 210.

      Mr. John V. Ladcley, for the complainants-appellants.

      Mr. Frank B. Bozza, for the defendants-respondents.
   The opinion of the court was delivered by

KaTZENBACH, J.

This is an appeal from a final decree of the court of chancery dismissing the complainants’ bill. The bill was filed to set aside, as fraudulent, a deed of conveyance for premises located in the city of Orange. The deed was made on May 5th, 1921, by Frances Virgil and Louis Virgil, her husband, to Mamie Virgil, the wife of Andrew G. Virgil. Mamie Virgil and Frances Virgil had been the owners of the property as tenants in common. The effect of the deed in question was to vest the entire ownership of the property in Mamie Virgil. The bill of complaint alleges that on April 2d, 1921, the complain aids, Mary Babireeki, by her next friend, Stephen Babireeki, her father, and Stephen Babirecki, individually, commenced an action in the Essex county circuit court against Andrew G. Virgil, Frances Virgil and Louis Virgil, as partners, to recover damages for injuries sustained bv Mary Babireeki, an infant three and a half years of age,, as the result of an accident alleged to have been due to the noglience of the defendants, and also .to recover tlie damages sustained by the father, Stephen Babirecki, as a result of the accident to his child. The accident occurred on January 28th, 1921. The case was tried on February 10th, 1922, and resulted in a verdict in favor of the child for $1,000, and a verdict for the father for $1,068, which was subsequently reduced to $568. Judgments were entered and executions, in the usual form, tested on April 5th, 1922, were issued and delivered to the sheriff of Essex county, who was unable to find any goods, chattels or lands of the defendants upon which to levy. The executions were returned by the sheriff wholly unsatisfied. The personal property of the partnership had been mortgaged to one Rose Cursi at the time of the conveyance to Mamie Virgil of the interest of Frances Virgil in the real estate. The deed of conveyance to Mamie Virgil was a warrant!’ deed. The consideration stated in the deed was one dollar and other good and valuable consideration. It had affixed thereto revenue stamps to the amount of one dollar. The answer filed by the Virgils to the bill of complaint set up that the deed of May oth, 1921, was made in pursuance of an agreement in writing made between .Frances Virgil and Mamie Virgil, dated August 16th. 1917; that the deed by which Frances Virgil became seized of an undivided one-half interest in the premises was not supported by any consideration from Frances Virgil, and was conditional upon the payment by Frances of $2,500 within three years; that should Bhances fail to pay this sum she was to' reconvey her interest in the property to Mamie Virgil. The agreement of August 16th, 1917, was produced at the hearing. It was written upon a leaf taken from an old account book. It was apparently drawn by air unskilled person. It bore upon its face the evidence of being a home-made document. A photostat copy of it is embodied in the record. The purport of the agreement appears to be that if Frances Virgil does not pay to Mamie Virgil interest annually.at six per cent, on $2,500, and make payment to her of $2,500 within three years, then Frances is to deed her interest in the premises situate on Hill and. Commerce streets. Orange, to Mamie. Counsel for the complainants attempted to make a spirited attack upon this writing, especially as to the authenticity of its date, by cross-examination of the parties thereto as to why the agreement had been drawn at home, the date when drafted, the origin of the paper upon which it was written, the ink and pens used in its drafting, the consideration, and the facts and circumstances surrounding its execution. These questions were objected to and the objections sustained by the learned vice-chancellor who heard the case. The result of these rulings was that the complainants were deprived of having embodied in the record the facts and circumstances surrounding the making and execution of the agreement. The correctness of these rulings is made a ground of appeal.

In the conclusions filed by the vice-chancellor he says: “The suit was started in the Essex county circuit court on the 21st of April, 1921. The deed was on May 6th, 1921, and the judgment recovered was on February 10th, 1922. Therefore, when the suit was started there were no creditors in existence, because the outcome of the suit was uncertain, and, under the cases, in the absence of fraud, a person, even if he be assumed to be in failing circumstances, may prefer a creditor unless the creditor unites with the one making the conveyance to defraud.” This is an erroneous statement of the law. The statute to protect creditors and others against conveyances made to defraud them has been held in numerous decisions in this state to extend its protection to those who have valid actions for damages for torts. The leading case upon this subject is that of the Washington National Bank v. Beatty, 77 N. J. Eq. 252. This court in that case, speaking through the late Juclge Dill, said: “The rule, both in England (Twyne’s Case. 3 Golee 82) and in this state, is that the statute extends its protection to all persons having a valid cause of action arising from torts as well as from contracts. Boid v. Dean, 48 N. J. Eq. 193; 21 Atl, Rep. 618; Post v. Stiger, 29 N. J. Eq. 551: Scott v. Hartman, 26 N. J. Eq. 89; Thorp v. Leibrecht, 56 N. J. Eq. 499; 39 Atl. Rep. 361. Nevertheless, a tort-claimant, to place himself in the position of a lawful creditor or person competent under the statute to set aside a voluntary conveyance, must reduce his claim to judgment, and thus establish a legal debt against the fraudulent grantor. When his claim has thus been liquidated and established as a lawful debt, he may attack a voluntary conveyance made after the liability arose and before suit was brought, to defeat his debt, on the theory that such judgment, when once obtained, relates back and establishes a debt as of the time when the original cause of action accrued.”

The learned vice-chancellor also said in his conclusions: “Neither do I think that the statement that the deed of May 6th, 1921, is for a nominal consideration, is of importance. It is a warranty deed with the usual covenants, and. consideral ion is presumed.” This is an incorrect statement of the law. The burden of proving, when attacked as fraudulent, the consideration of a deed, where no consideration was paid at the time of the conveyance, is upon the grantee. In the recent case in this court of Coleman v. Graff, 94 N. J. Eq. 223, where this court adopted the opinion of Yice-Chancellor Buchanan, it was held that where a son conveyed to his mother a property after having determined to breach a marriage contract and no valuable consideration at the time of the transfer moved from the mother, that a case was established which threw upon the defendants the burden of proof. In this case no action for breach of promise of marriage had been instituted at the time of the transfer. In the case under consideration the burden of proof was upon Mamie Yirgil, the grantee, to show that the conveyance was tona fide and based upon a valuable consideration. Consideration was not presumed merely because it was a warranty deed, with the usual covenants as stated by the vice-chancellor.

If by the decision rendered it is apparent that the court misapprehended the law governing the case, it is impossible for a reviewing court to determine to what extent the erroneous views of the lower court contributed to the decision reached. For these reasons we feel that the decree of the court of chancery should be reversed.

There is also- another ground upon which we think the decree below should be reversed. It has been stated that the complainants endeavored by cross-examination of the defendants to show the facts and circumstances surrounding the drafting and execution of the agreement of August 25th, 1917, and that upon objections made the questions asked for this purpose were overruled. The attitude of the court is best evidenced by a reference to a few of the questions asked and the rulings made. Mamie Virgil, the grantee, was asked upon cross-examination, “Why wasn’t the consideration, the true consideration, then mentioned in the deed ?” This question was objected to and the objection sustained. The same witness was asked, “Why was there only a one dollar revenue stamp attached to the deed instead of the legal fee of $2.50?” This question the court would not permit to be answered, as also the question, “Now, when was this agreement drawn?” When the same witness, Mamie Virgil, was asked, “And did you use the same pen ?” the court said, “I don’t want to hear any more about how this agreement was executed, and I won’t permit any further questions along that line.” The court had previously said, “The agreement shows when it was drawn.” The same and similar questions were asked Frances Virgil and were overruled. In his opinion the vice-chancellor said, “The crux of the case is the alleged agreement between Mamie and Frances.” This was true. The agreement was one which upon its face bore evidence which justified a suspicion as to its authenticity as to date at least. The facts and circumstances surrounding its drafting and execution were legitimate subjects of inquiry. They were relevant to the issue. The complainants were entitled to all the information which could be elicited by the examination or cross-examination of those who were parties to the agreement, or who had anything to do with its drafting and execution. This information was denied the complainants by the rulings of the vice-chancellor. This court held, in an opinion written by Mr. Justice Parker in the case of Prout v. Bernards Land and Sand Co., 77 N. J. Laiv 719, that cross-examination on matters, either directly in issue or directly relevant to the issue, is a matter of right, and its exclusion erro-r. In the recent case of Baus v. Trenton and Mercer County Traction Co., decided in this court on October 20th, 1924, and reported as yet only in 2 N. J. Adv. R. 1668, a judgment was reversed, because of the failure of the trial court to permit a witness to answer upon cross-examination a question which was deemed relevant to the issue. Mr. Jirstice Campbell, who wrote the opinion in this case, cited with approval the case of Prout v. Bernards Land and Sand Co., supra. It may be that the vice-chancellor had, prior to the attempted cross-examination, become satisfied that the complainants’ suit was without merit, and that nothing which could be brought out upon cross-examination would alter the view which he entertained. This, however, •furnished noi basis for a refusal to allow the questions asked to be answered. The court of chancery was not the final tribunal to pass upon the complainants’ case. The complainants had the right to a review of their case by this court. Testimony which, might not have influenced the vice-chancellor in his conclusions might in this court be differently viewed. A litigant has the right to have brought out all the facts which have a bearing upon his case. A trial judge must at all times be patient. The door to any legitimate subject of inquiry must not be closed.

In the case under consideration we feel that the doors were closed upon the complainants in violation of their rights. They were entitled to have answered the questions which the court would not permit to be answered. It was error to have overruled them.

For the reason that testimony which might have been material to the issue-, and which might have been, if adduced, important in determining the merits of the controversy, was excluded, this case will be sent back to the court of chancery for a rehearing. This course- was taken, fo-r substantially the. same reason, in the recent case of Silverman v. Klussman, decided October 20th, 1924, and reported in 2 N. J. Adv. R. 1481, and in 96 N. J. Eq. 224, 621.

The decree of the court of chancery is-reversed. The case is remanded to the court of chancery to be reheard upon lines indicated in this opinion.

For affirmance—None.

For reversal—Tub Chief-Justice, Trenchard, Parker. Minturn, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskjkk, Clark, -McG-lennon, Kays, JJ. 14.


author: Lloyd, J.

text:
    James W. Pittinger and Frederick H. Kilpatrick, complainants-respondents, v. Franklin F. Mayo, defendant-appellant.
    [Decided January 19th, 1925.]
    Where lands were conveyed by a deed absolute on its face (but construed to he a mortgage J, and foreclosure thereof was resisted on the ground that the deed was controlled by a certain collateral agreement. which, if was claimed, constituted the whole transaction a trust with active duties, which could not be disregarded, and the deed, for that reason, could not he considered a mortgage, held, that as the owner of the property was in financial plight with it, and could not keep down the interest, faxes, &c„ and the banks, for whose henefif the agreement was made. were, already iiis creditors in large amounts, and the object of the conveyance was to save the ■owner through his banks, who agreed to advance certain moneys to carry (lie properly for a year, after the expiration of the year no further duty devolved upon the trustee than to hold the property for the benefit of the banks and for the better securing of the notes held by them. and. after that, time, the. trustee c-ould foreclose the equity of redemption, to avail himself of his security.
    On appeal from the court of chancery.

      Messrs. Heine, Bradner & Laird (Mr. Palmer Bradner, of counsel.)

      Messrs Hiker <£• Piker (Mr. Theodore McC. Marsh, of counsel.)
   The opinion of the court was delivered by

Lloyd, J.

The complainants below filed their bill in chancery to foreclose the defendant’s right of redemption under a deed (construed to be a mortgage) to certain real property in the town of Bloomfield, Essex county. The deed was from Alice M. Woodruff' to complainants, and bore date June 26th, 1917. The foreclosure was resisted on the ground that the deed was controlled by a certain collateral agreement bearing date July 5th, 1917, between the complainants as parties of the first part, the Newark Trust Company, the National Newark Banking Company and the Essex County Bank, parties of the second part, and the defendant, Mayo, as party of the third part, imposing certain' duties and obligations which it was claimed constituted the whole transaction a trust with active duties that could not be disregarded, and that the deed, for that reason, could not be decreed to be a mortgage.

The essential facts of the case are that Mayo, the appellant, was indebted to a number of Newark banks, and was at the same time the owner, either^in his own name or in the names of other persons, of several parcels of real property located in Essex county, among them the one involved in this suit. These properties were all encumbered by mortgages, overdue interest, taxes and assessments. Both Ma3'o and the banks seem to have believed there was value in the property over and above these encumbrances, and in this belief the various eonve3ances were made to the complainants, Pittinger and Kilpatrick, and the agreement entered into. In the agreement it is recited that the conveyances were made to the parties of the first part, complainants below, for the use and benefit of the banks. The agreement further provided for the payment by the banks of interest, taxes and assessments on the properties (the carrying charges) for one year, the payment to Mayo of a bulk sum of $1,450, and $50 per month for a period of six months. The agreement also provided that the complainants would not sell the properties without the consent of the banks, and that they would not sell the properties for less than certain sums named for one year without the consent of the defendant, Mayo. Then follow provisions for the disposition of the' proceeds of sales that might be made to the payment of counsel fees,, to the banks for current charges, moneys advanced to Mayo, moneys advanced for back interest, unpaid taxes or assessments, moneys due the banks on the Mayo notes, and, finally, to pay the surplus, if any, to Mayo. The notes held by the banks, and which the deed was given to secure, were all dated before the making of the agreement, payable on demand or short notice, and were due and unpaid long before the bringing of the present suit.

The appellant's brief aptly states the question to be whether the deed of Alice M. Woodruff to complainants, together with the agreement of July 5th, 1917, constitute a mortgage or an express trust. The vice-chancellor held the transaction to constitute a mortgage, and advised a decree of foreclosure. This we think the proper construction. Mayo was in financial plight with his real property; he could not keep down the accumulating charges for interest, taxes and assessments; the banks were already his creditors to large amounts, and the uppermost thought in his mind, obviously, was to save himself through the banks coming, to his rescue. The banks were likewise actuated by motives of self-interest to protect that which they already held against Mayo. In this situation Mayo caused the property to be conveyed to the nominees of the bank in order that the indebtedness, together with that which was to be created under the agreement, might be secured. In return, the banks agreed to advance certain moneys and, in a general way, to carry the property for a year. The obligation of the banks, however, was to continue but for the year. If the properties were sold within that period, or within any other time thereafter, under the terms of the agreement, distribution would follow in the order indicated by that paper. But they were not thus sold. Nearly all of them appear to have been foreclosed after the expiration of the year under encumbrances anterior to the deeds and the agreement. For this the complainants were not responsible, and under no obligation to provide against. "When the year expired no further duty devolved on the trustees than to hold the property, in the language Of the agreement itself, “for the benefit of the banks, and for the better securing of the payment of the notes” held by them. There was at the expiration of the year no limitation on the absolute character of the deed except that which flowed from the fundamental fact that the conveyance was to secure the indebtedness. That the creditor assumed for a year- the obligation to pay the taxes and assessments on the property, and the interest on the underlying mortgages—a burden which usually falls on the mortgagor—imposed no duty beyond that period, and cannot be pleaded by the defendant in extenuation of his subsequent default in meeting the notes which the deed was given to secure. The parties were left in a legal sense at arm’s length in the relation of debtor and creditor, with the creditor holding the security of its deed (mortgage). It was the right of the complainants, the trustees for the creditors, to avail themselves óf the security, and this they could only do by foreclosing the defendant’s right of redemption.

We, therefore, reach the conclusion that the deed, as qualified by the agreement, constituted a mortgage, and was subject to foreclosure as such. This result having been reached in the trial court, the decree will be affirmed.

For affirmance — The Chief - Justice, Trenchard, Parker, Minturn, Black, Katzenbach, Campbell, Lloyd, Gardner, Van Buskirk, Clark, McGlennon, Kays, JJ. 13.

For reversal—None.


author: White, J.

text:
    Alexander J. Milmore and Catherine Milmore, complainants-appellants, v. August Zimmerman and Theresa Zimmerman, defendants-respondents.
    [Submitted June 9th, 1924.
    Decided January 19th, 1925.]
    The filing of a bill under P. L. 1918 p. 897. as amended by P. L. 1919 p. 561/, to foreclose the right of redemption, does not create or bring into being a new right to redeem as against a perfected title in fee acquired through a tax sale and proceedings under and in accordance with the provisions of the Martin act, whereby all right of redemption had long before been terminated forever.
    On appeal from the court of chancery advised by Vice-Chancellor Backes, whose opinion is reported ill 96 N. J. Eq. 85.

      Mr. Michael J. Quigley and Mr. Ilugo Wcerner, for the appellants.

      Mr. James R. Nugent, for the respondents.
   The opinion of the court was delivered by

White, J.

This is an appeal from a decree of the court of chancery, dismissing appellants’ bill to redeem a vacant lot in the city of Newark, sold and deeded in fee under the “Martin act” for unpaid taxes. In 1899 appellants became the owners of the vacant lot in question, which, on May 8th, 1910, was sold under the “Martin act” (Comp. Stat. p. 5205) for unpaid taxes to one Charles Bierman, who, on November 30th, 1910, served “Martin act” notices to redeem on appellants, who did not redeem, and on June 29th, 1911, Bierman received from the comptroller of the city of Newark a “Martin act” deed in fee for the premises. On February 4th, 1919, Bier-man served another set of notices to redeem on appellants, who again did not redeem, and on October 23d, 1919, Bier-man received from the comptroller another deed in fee for the premises. Bierman conveyed to respondents in 1921. The present bill to redeem sets up, inter alia, certain alleged defects, not in the assessment of the taxes nor in the tax sale for their collection, but touching the service of the above-recited notices to redeem. The court of chancery, in an opinion by Vice-Chancellor Backes (reported in 95 N. J. Eq. 85), held that Bierman took a good title in fee-simple under the tax deeds delivered in pursuance of these notices. We concur in this decision and in the views relating thereto expressed in the opinion filed by the learned vice-chancellor.

The bill, however, also sets up another ground in support of the right to redeem which appellants now claim. This is said to arise from the fact that the present respondents, after their purchase from Bierman, in 1921, filed, in 1922, a bill under section 49 of the act of 1918 (P. L. p. 897), amended by the act of 1919 (P. L. p. 56k), against appellants to foreclose the latter’s right to redeem, whereupon appellants promptly answered, claiming the right to redeem under the provisions of that section, and tendering redemption, and forthwith filed the bill to redeem now involved. Section 49 (as so amended) of the act of 1918, in so far as it is appurtenant, provides: “The purchaser, or his heirs or assigns, m addition to the foregoing remed3, and at any time after the expiration of the terms of two 3rears, whether notice to redeem has been given or not, may file a bill in equity to foreclose the right of redemption, but on filing such bill the right to redeem shall exist and continue until barred by the decree of the court of chancery.” Naturally, respondents then immediately, with leave of court 'after notice and oveT appellants’ objection, discontinued their bill to foreclose. An appeal was not taken from this order granting leave to discontinue, but as no point of the possible effect of this order as res adjudicator was raised by tlie pleadings nor urged in the brief of counsel here, that aspect of. the case will not be considered.

The question before us therefore -is, Did the filing of respondents’ bill, under this section, to foreclose the right of redemption, create or bring into being a new right to redeem as against a perfected title in fee, acquired through a tax sale and proceedings under and in accordance with the provisions of the “Martin act,” whereby all right of redemption had long before been terminated forever? We think it did not.

The a.ct of 1918 provides a legislative scheme for the collection of unpaid taxes on real estate by the creation and enforcement of liens against such real estate. It nowhere pretends to create what, of course, it could not create in any event, viz., a right to defeat or destroy an estate in fee-simple in real estate by giving to someone who has no interest nor estate therein, the right (under the guise or name of redemption) to acquire title thereto by purchase, not only without the consent, but against the active protest of the real owner. The title of the act is “An act concerning unpaid taxes, assessments and other municipal charges on real property, and providing for the collection thereof by the creation and enforcement of liens thereon.” Clearly, the object of the act as declared in its title does not, most remotely, include any such purpose. Nor do the provisions of the body of the act, as it seems to us, indicate any such legislative intent. Section 49 gives the purchaser at a tax sale, after two years, and whether notice to redeem has or has not been given, the right, in addition to the foregoing remedy, to file a bill to foreclose the right of redemption. “To foreclose” means to end or terminate. The word presupposes the existence of something to be ended or terminated. Obviously, it seems to us, the provision in question applies and was intended to apply only to a situation where the right to redeem had not, in fact, been absolutely lost or ended before the bill to foreclose was filed. If the notice under the act of 1918 had been given and then, before the right of redemption was cut off in pursuance thereof, the purchaser, for some reason, saw fit to invoke section 49, by filing a bill for strict foreclosure of the right of redemption, the effect under this.section would be to continue the owner’s right of redemption until barred by the decree of the court of chancery, and this, although in the absence of such bill to foreclose, the right to redeem might much sooner have been cut off by proceedings under the notice which had already been given. This, we think, was the purpose of the provision in question. The act was intended to operate upon a still existing right to redeem. In the present case, however, tire right to redeem, which had-once existed, had long since been absolutely extinguished, and the purchaser held an undefeasible title in fee-simple before the bill to foreclose was filed. Under these circumstances, we think the provisions of section 49 have no application, and that the decree must be affirmed.

For affirmance—Trenchard, Parker, Minturn, Black, Katzenbach, White, Gardner, Van Buskirk, Kays, JJ. 9.

For reversal—The Chief-Justice, Campbell, Lloyd, Clark, McGlennon, JJ. 5.


author: Clark, J.

text:
    Fleurette B. Cavanna and Augustus R. Cavanna, complainants-respondents, v. Carrie F. Brooks, defendant-appellant.
    [Decided January 19th, 1925.]
    1. Specific performance will not be refused, on the ground of lack of mutuality in the remedy, because at the time of the contract the complainant did not have title to the premises to be conveyed, provided that such title is acquired and. can be conveyed' at the time for the performance of the agreement.
    ' 2. The omission of a due date for a mortgage and the rate of interest thereon will not render a contract so uncertain as to defeat specific performance thereof.
    On bill, &c. On appeal from a decree of the court of chancery.

      Mr. Wm. Elmer Brown, Jr., for the eomplainants-respondents.

      Mr. John C. Reed, for the defendant-appellant.
   The opinion of the court was delivered by

Clark, J.

By the bill in this case, the complainant Mrs. Fleurette B. Cavanna sought the specific performance of a contract for the sale of a house and lot located on Yentnor avenue, in Yentnor City. On March 7th, 1923, she agreed, in writing, to purchase the property in question from a Mr. and Mrs. Haley, residents of Titusville, Pennsylvania, for a consideration of $19,500. The title under this agreement was to pass on September 15th, 1923. On April 20th, 1923, Mrs. Cavanna entered into an agreement with the defendant herein, Mrs. Carrie F. Brooks, for the resale of the Yentnor avenue property to her for $24,500. This agreement also was in writing, and the title thereunder was to pass on the date set for the performance of the contract with the Haleys. Both of these agreements were on a cash basis as to approximately one-fourth of the consideration, the rest being on various mortgages. They also seem to have included, by way of inventory, the furniture of the house.

The contract between complainant and defendant contained a provision that a lease of • the premises to the latter be executed on or before May 15th, 192.3. Accordingly, such a lease was made on April 23d, and Mrs. Brooks entered into possession thereunder. From a letter, undated, but, obviously, from its context, written some time thereafter by the defendant, she appears to have been attempting to dispose of the property in her turn. Apparently requiring more time to consummate such a resale, an extension of her obligation until October 1st, and finally until October 15th, 1923, was arranged for her by her real estate agents.

In spite of this extension, however, her difficulties in the matter of a resale were not overcome, and seemed to her at least to require the more drastic step of a consultation with her attorney. As a result of this conference, Mrs. Cavanna received a letter, written in behalf of Mrs. Brooks by her attorney, now the solicitor in this cause. This letter, dated October 8th, 1923, advised her that Mrs. Brooks rescinded the contract because of her knowledge just acquired that Mrs. Cavanna did not own the property on April 20th, 1923, the date of her agreement to sell the same.

Thereupon, complainant, acting now upon the advice of her attorney, also her solicitorin this cause, proceeded to carry out her part of the contract with the defendant. On Oetober 15th, 1923, a deed from the Haleys, conveying the property to Mrs. Cavanna, was duly executed and delivered. This was acknowledged by Mr. and Mrs. Haley on October 18th, 1923. On the same day a deed, in compliance with the original contract of April 20th, 1923, conveying the property from Mrs. Cavanna to Mrs. Brooks, was prepared by Mrs. Cavanna. Mrs. Brooks was notified of these facts, and was advised to be present at the office of the South Jersey Title and Guarantee Company, in Atlantic City, in order to accept delivery of the deed to the property, and carry out her obligations as purchaser. Defendant was given several opportunities to appear for this purpose, the final one being on November 8th, 1923, on which day a bill of sale for the furniture was also drawn up. She seems to have availed herself of none of them, and the bill for specific performance was accordingly filed.

As was foreshadowed in the letter of the defendant’s solicitor, the principal defense set up by the answer is the existence of a lack of mutuality in the remedy. This allegedly arises because of the fact that on April 20th, 1923, complainant did not have title to the property she agreed to sell. In fact, her only interest on that date was derived from being the obligee of an agreement to purchase the same, which was unenforceable because it was not acknowledged by Mrs. Haley, the wife of the vendor. The hearing in the court of chancery resulted in a decree directing the performance of the contract. From that decree, defendant now appeals to this court.

From this statement of facts, it is clear that the defendant seeks an extreme application of a principle of equitable jurisprudence, concerning which there has been considerable controversy, both among legal writers and in the courts. It is her contention, as we understand it, that, because of the impossibility of performance by the complainant of her contract to convey the property agreed upon, and because, further, the complainant had not acknowledged the agreement, there is no mutuality of remedy, and specific performance should accordingly be denied. There is undoubtedly authority for this view. Lord-Justice Fry, in his work on Specific Performance, say's:

“A contract to be specifically enforced by the court must, as a general rule, be mutual—that is to say, sucih that it might, at the time it was entered into, have been enforced by either of the parties against the other of them.” Fry Spec. Perf. (Sd ed ) 215.

Following him, there have been numerous cases in the courts which cite and support this dictum. We agree, however, with the learned vice-chancellor below in his refusal to give it effect in the ease at bar.

It is not our intention in this opinion to discuss critically the equitable doctrine of mutuality of remedy. This has been done most fully by Dean Ames in 8 Col. Rev. 1, and by Dean —now Attorney-General—Stone, in 16 Col. L. Rev. 448 (and see, also, for the historical development of the doctrine of mutuality, a series of essays in 49 A. L. R. 270, 882, 44%, 507, 559, and 50 A. L. R. 25, 65). All of these writers question thc’Poundness of a rule which is proved, “by the existence of eight exceptions recognized by the courts.” Willis. Cont. § 1434 et seg. For our purposes, it is enough that complainant in the case at bar has brought herself within two of the exceptions rather than within the rule. Thus, by filing the bill, Mrs. Cavanna has submitted herself to the jurisdiction of the court and has removed any difficulty as to mutuality arising out of her failure to acknowledge the original agreement. Woodruff v. Woodruff, 44 N. J. Eq. 349. So, also, her ability to give a -clear title at the time of the making of the decree, as was said by Chief-Justice Gummere, speaking for this court in Gerba v. Metruska, 84 N. J. Eq. 141, deprived the defendant of any right to defeat the bill because of the situation existing in regard thereto at the time the contract was entered into. The contract seems to us to have been performed in time. Even if it was not, however, the possession by the defendant of the premises would seem to remove any objection on that score. A gens v. Cock, 74 N. J. Eq. 528.

It is true that if complainant had misrepresented the facts as to her title to the property, defendant would have been, if herself an innocent party, entitled to avoid the contract. Byard v. Holmes, 33 N. J. Law 119. Equally, of course, a court of equity in such a case would have refused specific performance. Muller v. Weiss, 91 N. J. Eq. 321. The learned vice-chancellor has found, however, that Mrs. Brooks knew, at the time she entered into the contract, that Mrs. Cavanna was not the owner of the property, but had only contracted to buy it from the Haleys. This court will give great weight to the findings of a vice-chancellor who has had an opportunity to see the witnesses. Cartan v. Phelps, 91 N. J. Eq. 321. Our own examination of the testimony leads us to the same conclusion. Mrs. Brooks’ denial of knowledge seems to us evasive and quite inconsistent with the coincidence of the dates in the two agreements and with the circumstances of her requests for extensions and her knowledge of similar readjustments with the Haleys.

It is also maintained in the defendant’s answer that specific performance should be refused because the contract sought to be enforced is uncertain in its statement of the consideration. We do not understand defendant’s reliance upon section 5 of the statute of frauds in this connection. It is our impression that, by the express terms of section 9 of that statute (Rev. 1877 p. 446), such consideration need not be stated. Nibert v. Baghurst, 47 N.J. Eq. 208. At any rate, this point seems to have been abandoned on the argument and in the brief.

Uncertainty in the price, as in any of the other terms in the contract, is undoubtedly a reason for refusing specific performance. McKibbin v. Brown, 14 N. J. Eq. 13; affirmed,, 15 N., J. Eq. 498, and see Davila v. United Fruit Co., 88 N. J. Eq. 602. So, here, the failure of the parties to fix either an interest rate or a due date in the purchase-money mortgages, or one of them, may be said to make the price both uncertain in amount and in the time for the payment thereof. In respect to these particular provisions,’ however, the courts are able to supply the defects by reference to the ordinary conduct of reasonable men. Thus, when a rate of interest is not stated, the parties will be presumed to have intended the legal rate, that being the one to whose reasonableness the legislature has given its sanction. Bowne v. Ritter, 26 N. J. Eq. 457. Similarly, when no date for the maturity of the mortgage is expressed therein, a natural presumption is that the parties intended the creditor-mortgagee to have his money when he asks for it, i. e., on demand. Luczak v. Mariove, 92 N. J. Eq. 377; affirmed, 93 N. J. Eq. 501. A like presumption is indulged in respect to negotiable instruments where no time of payment is fixed by the instrument. Messmore v. Morrison, 172 Pa. St. 300.

Courts of equity have given effect to these presumptions in cases where specific performance is sought. They have accordingly made decrees, even though the rate of interest is not fixed (Luczak v. Mariove, supra), nor the due date for the mortgage included. Green v. Richards, 23 N. J. Eq. 32; affirmed, 23 N. J. Eq. 536. In any event, it seems to us that the possession of the premises by Mrs. Brooks, under a lease embodying the terms of her contract of purchase, deprives her of the right to rely upon whatever merit there may otherwise be in the above contentions. See Brown v. Pinner, 61 N. J. Eq. 231, and cases there cited.

The decree is affirmed.

For affirmance—The Chief-Justice, Teen chard, Parker, Minturn, Black, Katzenbach, Campbell, Lloyd, Gardner, Van Busicirk, Clark, McGlennon, Kays, JJ. 13.

For reversal—None.


author: Iyays, J.

text:
    Louis Schmieder et al., complainants-respondents, v. Clarence D. Meyer, trustee, et al., defendants-appellants.
    [Submitted October term, 1924.
    Decided January 19th, 1925.]
    1. A testator’, by his will and codicils, left his property to his executors, in trust, to pay one-third of the income to his widow during widowhood and two-thirds of the income to his children, and provided that, “after the death of my said wife, my said estate shall be divided equally between my said children,’ share and share alike, and if any child dies leaving lawful issue, such grandchild or children shall receive the share or portion of the parent.” Held, that the children took a vested estate in remainder at the time of the testator’s death, subject to be divested in ease of their death, leaving issue before the termination of the life estate.
    2. An agreement between the life tenants and remaindermen, to convey the life estate to the remaindermen, does not merge the life estate with the estate in remainder so as to make the corpus of the estate immediately distributable, where the period of distribution is postponed until the termination of the life estate.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, whose opinion is reported in 96 N. J. Eq. 69.

      Messrs. Slamler, Stamler c(5 Koesiler, for the complainants-respondents.

      Mr. Clarence D. Meyer, for the defendants-appellants.
   The opinion of the court was delivered by

Iyays, J.

This is an appeal from a decree of the court of chancery decreeing the distribution of the trust funds created under the last will and testament of Frank Schmieder, and directing the defendants, as executors and trustees under his will, to transfer and convey the estate of the testator to the defendants, Louis Schmieder, Frank J. Schmieder, Mary Schmieder Hand and Emil Henry Schmieder.

Frank Schmieder died on September 26th, 1922, leaving a last will and testament and two- codicils thereto. The will of the testator was dated February 3d, 1917, and, apparently, after the making of said will,'the said Frank Schmieder married a second time, and on the 17th day of July, 1919, he made a codicil to the will above mentioned, making his said second wife, Ella Schmieder, a beneficiary thereunder. The testator made another codicil on April 27th, 1922.

The testator, in and by his will and codicils, named the defendants, Clarence D. Meyer and John G. Hall, executors and trustees. After making several specific bequests, the will and codicils provide as follows:

■‘All the rest, residue and remainder of my estate, real, personal and mixed, X give, devise and bequeath unto my executors hereinafter named, but upon trust for the following uses and trusts.”

The will and codicils then provide for the collection of the income and the investment of the principal by the trustees, after which it contains the following language:

“The net income therefrom at least once in each year shall be divided by said executors and trustees in the following manner:
“One-third thereof unto my wife, Ella Schmieder, so long as she lives and remains my widow, and the remainder or two-thirds thereof shall be divided among my children Ixrnis iSehmieder, Frank .J. Schmieder, Mary Schmieder Hand and Emil Schmieder.
“After the death of my said wife, my said estate shall be divided equally between my said children, share and share alike, and if any child' dies leaving lawful issue, such grandchild or children shall receive the share or portion of the parent.
“The share of Emil Henry Schmieder shall be retained by my executors or trustees until my said son Emil attains the age of forty years, or as soon as my executors deem bim capable of managing his own affairs, but he may receive the income therefrom regularly at least once in each year.”

On or about February 26tb, 1924, the widow, Ella Schmieder. and the complainants, children of the testator, namely, Louis Schmieder, Frank J. Schmieder, Mary Schmieder Hand and Emil Henry Schmieder, entered into an agreement in writing, by the terms of which the widow was to be paid the sum of $20,000 in full settlement of her rights, claims, legacies and devises under the testator’s will, including her dower and rights of dower. And it was further provided, in and by said agreement, that a suit should he instituted in the court of chancer} for the purpose of obtaining a decree whereby the trust created in and by the testator’s will had ceased and terminated, and requiring the executor's and trustees to convey all the property bequeathed or devised to the children and widow, except some real, and personal property therein specifically mentioned, to the children named in his will. A bill was filed in accordance with this agreement by the complainants, and the executors opposed the making of the decree as prayed for under the agreement. There were several grandchildren of the testator in existence at the time of the making of the agreement and the institution of this suit, some of whom were minors, and none of whom were made parties hereto.

The ground of the defense is it was the testator’s purpose that no distribution should be made of the estate during the lifetime of the widow, Ella Schmieder, and that if any child should die before the period of distribution arrived, i. e. (the time of the death or remarriage of the widow), the child or children, if any, of such deceased child should take the parent’s share in the estate.

It was admitted that Emil Henry Schmieder was capable of managing his own affairs, and that there is no objection on the part of the executors and. trustees to paying to: 'him his share on the ground that he was incapable of managing his own affairs.

The court of chancery held that the children has a vested estate in the remainder, and that as the owners of the life estate, to wit, the widow and children, and the owners of the estate in remainder, to wit, the children, desired to terminate the trust, they might do so by a mutual agreement. That there could be no legal objection to such action, and that the provision in the will with relation to the grandchildren, was no bar to the right of the widow and children to terminate the trust. The opinion of the vice-chancellor is reported in 2 N. J. Adv. R. 1205; 96 N. J. Eq. 69.

We agree with the vice-chancellor that by the terms of the will the children of the testator took a vested estate. It is also our opinion that this vested estate would have become absolute and indefeasible if the children of the testator had lived to the time of the death or remarriage of the widow, which is the time fixed in the will for the period of distribution.

We do> not agree, however, as decided by the vice-chancellor, that the parties interested might accelerate the date of distribution and bring to an end the trust b3 mutual agreement. It is true that a widow may refuse a life estate in the property of her husband under his will, and that in such event, there being no life estate outstanding, the estate becomes immediately distributable and vests absolutely in the remaindermen. Such, however, was not the circumstance in this case, as the widow accepted the terms of the will. The widow assigned, or agreed to assign, her interest to the remaindermen, which, in our opinion, did not thereby terminate the life estate. The life estate still continued in existence, for under the provisions of the will the remainder-men take the estate after the widow’s death or remarriage if they survive her.

Where the period of distribution is postponed until the termination of a life estate, then, although the estate in remainder vests in the children at the time of the testator’s death,, it is subject to- be divested, if the beneficiary dies before the time for distribution arrives. This is the doctrine laid down in the case of Baldwin v. Taylor, 37 N. J. Eq. 78, and affirmed by this court in 33 N. J. Eq. 637. This doctrine was also pointed out in the case of Miller v. Worrall, 59 N. J. Eq. 134, and the same principle can be seen in the case of the Trenton Trust and Safe Deposit Co. v. Moore, 83 N. J. Eq. 584, and affirmed by this court in 84 N. J. Eq. 194- Other cases following this principle are Redmond v. Gummere, 94 N. J. Eq. 217, and Security Trust Company v. Lovett, 78 N. J. Eq. 445.

It is our opinion that under the terms of the will, the period of distribution was postponed until the death or remarriage of the widow, and that while the estate in remainder vested in the testator’s children immediately upon the testator’s death, it was subject to be divested by the death of any such child or children before the period of distribution, to wit, the death or remarriage of the widow, Ella Schmieder, providing such child or children of the testator died before that period, leaving a child or children.

It seems to us that the agreement above referred to, entered into between the widow and children of the testator, and upon which this suit is based, while not in the form of an assignment, is such in legal effect.

Therefore, as above stated, under the agreement entered into between the widow and children of the testator, there was no merger of the life estate and the estate in remainder so as to make the corpus of the estate immediately distributable, as the will provides for distribution at the termination of the life estate, and, further, specifically provides for the method of distribution at the time when that estate is to terminate.

The decree of the court of chancery is reversed, with costs.

Bor affirmance—None.

Bor reversal—The Chief-Justice, Trenchard, Parker, Minturn, Black, Katzenbach, Campbell, Lloyd, Clark, McG-lennon, Kays, JJ. 11.


author: Per Curiam.

text:
    John J. Plemenik, complainant-appellant, v. Cooper H. Prickett, the Grand Lodge of the Most Honorable Society of Free and Accepted Masons et al., defendants-respondents.
    [Decided January 19th, 1925.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Bentley, who filed the following opinion:
    “The defendant the Grand Lodge of the Most Ancient and Honorable Society of Free and Accepted Masons for the State of New Jersey, is that division of masonry that has supreme control within this state, having within its power, among other things, to charter or permit the formation of subordinate or local lodges throughout the state. It had existed prior to its incorporation in 1866 by an act of the legislature. In 1865 it chartered the lodge known as Schiller lodge. Under the by-laws of the. grand lodge it was required that the by-laws, whether in the form of a constitution or by-laws, or both, O'f a subordinate lodge before becoming effective, must be approved by the grand lodge-. The by-laws of Schiller lodge provided, among other things, that all of the records and proceedings of Schiller lodge, whether written or spoken, should be carried on in the German language. This provision was- regularly approved by the grand lodge.
    “On April 17th, 1918, at its annual meeting or convention, the grand lodge adopted a resolution pursuant to- a recommendation of the grand master thereof, its presiding officer, that kill the lodges of this jurisdiction be required to use none other than the standard ritual in the English language, and that the lodge records he likewise kept/ Obedience to that resolution was given by Schiller lodge until the fall of 1919. In the summer of the latter year, after the end of the world war, an application was made on- behalf of Schiller lodge to the grand master to relieve it from further compliance with the aforesaid resolution, upon the ground that the reason for the resolution having passed there was no longer any occasion for its being enforced. This permission was denied.
    “In the fall of 1919 the subordinate lodge, in disobedience of the direction of the grand lodge, again reverted to the use of the German language in its work. Whereupon, it was visited by an officer of the grand lodge, who took into his possession the charter of Schiller lodge, without which it cannot hold any meetings under tlie masonic law, and such proceedings were subsequently had that charges were prepared against the local lodge and tried by a committee of the grand lodge under the latter body’s judicial power. This trial resulted in a forfeiture of the warrant of Schiller lodge, which, in effect, wipes it out of existence.
    “The bill is died by the last master or presiding officer of Schiller lodge, and is exhibited against the grand lodge and certain of its officers. Schiller lodge at the time of its dissolution had or was possessed of certain funds, which it had accumulated through the payment of dues and otherwise. I feel that the determination of the rights of the complainant in this property is sufficient to retain the bill for consideration of it on the merits, especially in view of the earnest request by the defendants as well as the complainant that the entire matter be disposed of.
    “The complainant in his brief, at pages 41 and 42, waives all other questions, and bases his right to relief exclusively upon the following proposition:
    “ 'The resolution of 1918 is invalid, and, therefore, all acts of the grand lodge predicated thereon should, as far as they affect the complainant, the Schiller lodge, of which he is the head, be likewise declared invalid.’
    “To attempt to answer the brief filed on behalf of the complainant in detail would be intolerable. The bill must be dismissed. It is so well established as not to require citation and authorities, that courts, will not interfere with the internal affairs of voluntary associations such as is to be dealt with her, except in cases of fraud, lack of jurisdiction, &c. The selection of a language to. be used in the work of such a society is entirely within the discretion of the governing body thereof. Grand Lodge, I. 0. 0. F., of New Jersey v. Wieland Lodge ei al., 93 N. J. Eq. 129.

    “The complainant insists, however, that the resolution providing for the change from German to- the English language was not legally adopted, for the reason that the masonic law provides that the by-laws, shall not be changed unless proposed in writing and seconded, and then only if the same shall lie. over for one year for consideration at the. next annual communication or convention of the grand lodge. But section 21 of the general regulations of the grand lodge wherein that law is laid"down, contains a proviso that any such proposition may be acted upon at once by unanimous consent. In the matter under consideration the resolution was adopted at the same, communication at which it was originally ordered. But the printed record of that meeting shows that the adoption of the resolution was by unanimous consent. It is true that at the final hearing the complainant testified that he did not vote for the adoption of such resolution, but it can scarcely be argued seriously that his testimony to tills effect, uncorroborated in any way, should be allowed to overcome the official record of the meeting.
    “The jurisdiction and extent of the authority of such an association as is being dealt with here over its members veil be found considered in the cases collected -in 3 L. R. A. 413; 9 L. R'. A. 4%8; IS L. R. A. 625.

    “Counsel for the complainant has argued with great earnestness and ability, both orally and in his brief, many things that might well have been urged upon the members of the grand lodge against the adoption of the resolution in question. Those arguments might or might not have swayed the judgment of that body, but as legal arguments addressed to a court they can be of no avail, for the reason that they are directed to matters of policy and not of law. It would be an outrageous thing if the framing of the policies of masonry could be usurped by this court, because from that it would be but a step to usurping the same power with other like organizations, to- the end that property rights would be jeopardized. The complainant has asked this court to substitute its judgment as to whether or not any other language but the English language should be allowed in the masonic work, and the court refuses so to da
    I will advise a decree dismissing the bill.”
    Minturn, J. (dissenting).
    Free speech is the issue involved, and, therefore, I enter my dissent to the decree appealed from., which justifies its suppression.
    In 1865, immediately after the civil war, in which thousands of German immigrants, led by Sehurz, Sigeí, Heintzelman, Kudlich and others, had thrown themselves in the cauldron of the tremendous conflict, to preserve the integrity of the union, a desire to perpetuate the old traditions, language, music and scholarship led them to form various so^ cieties throughout the land. These societies were instrumental, not only in preserving memories- of the valor and sacrifices of the race in the great internecine conflict, but served also as a means of preserving the memories of those great leaders of our revolutionary struggle, like Yon Steuben, Muhlenberg and Herkimer, who- did so- much to- assist as drill masters of the continental forces.
    Among these organizations was Schiller Lodge of Masons* which was organized under the Grand Lodge of the Most Ancient and Honorable Society of Free and Accepted Masons, with a provision in its by-laws or charter that it “shall conduct all its affairs in the German language.” For fifty years this lodge, without hindrance or objection from any source, so conducted its proceedings. When the great war ensued, in obedience to a proper recommendation from the grand lodge, it voluntarily ceased the use of the German' tongue, and continued so to do until after the termination of the war, in the year 1919, when it resumed the use of German, in ac-cor dance with its charter and contract right. To this the master oJE the grand lodge objected, and his objection was supported by the committee on masonic jurisprudence, and, eventually, by the resolution of the grand lodge. Schiller lodge, refusing to conform to the request of that body, the complainant, as master of Schiller lodge, was deposed; its charter was forfeited, and its property, including $3,000 in cash, was confiscated by the grand lodge.
    Much masonic learning is recited in the briefs of learned counsel upon the essential fundamentals of masonry, in order to enlighten us upon the propriety of this procedure. It must suffice for one, whose knowledge of the order is entirely the result of early study, to remark that its great strength resided in a beautiful conception of an universality of purpose, and an entire, absence of provincialism. It provided for a league of nations, bringing together in one communion of thought men of all nationalities and all tongues, under the inspiring creed of a Fatherhood of God and a brotherhood of man. Tennyson aptly depicts its purpose, as the realization of an era:
    “When the war drum throbs no longer,
    • And the battle flag lies furled,
    In the parliament of man,
    The federation of the world.”
    If, as would appear from the procedure under consideration, this great conception of life is to be surrendered for an assumption of all the ills that selfish militant states are heirs to, then we have a situation in which masonry has been reduced to a status of provincialism and parochialism, and a luminous star that has lighted humanity over the deserts of destroyed empires and waning civilizations, has, indeed, lost its lustre and its attractive and powerful appeal to humanity. What was done in this instance with the lodge and its property could properly be effectuated under the circumscribed doctrines of other beneficial orders of state and national limitations, but not under the inspiration of an order which, in its age-long and world-wide conception of brotherhood, knows no language, color or creed, and no national boundaries or limitations. s
    Under this proscription of Schiller lodge, the stars of German literary and scientific life, the adopted sons of the world, Goethe, Jean Paul, Schiller, Schlegel, Hegel, Kant, Mozart, Hayden, Handel, Wagner, Straus, with many other world stellar lights, would be debarred from membership, not to mention Luther, who spoke only in German and Latin.
    The legal question propounded is one of contract; for if Schiller lodge contracted with the predecessor of the grand lodge, through its by-laws-, to “conduct all its affairs in the German language,” some authority must be adduced which will warrant the breach of that contract by the grand lodge. No such authority is produced; nor is. it contended that the grand lodge inherently possesses any such power, as was here exercised, under the tenets of masonry, except for a violation of the fundamental doctrines of the order, or as stated in the language of the proviso to the charter of Schiller lodge, unless the latter shall violate “the rules- and ordinances lawfully made or to be made for the benefit of masonry.”
    In the cases presented by counsel, such as Grand Lodge, I. O. O. F., v. Wieland Lodge, 93 N. J. Eq. 129, the power to abrogate was conceded to exis-t in the grand lodge> for disobedience and infraction of rules. In those cases the grand lodge constituted the infallible guide and authority for the direction of local lodges, and the decisions are put upon that ground. Here no such power was conceded to the grand lodge, and under the tenets of masonry none exists, and the conspicuous facts dominating the entire situation is, that Schiller lodge, under the concession of its charter, exercised this contractual right of procedure for over fifty years, without hindrance or protest. This violation, not only contemned masonic fundamentals, but it violated the spirit of American constitutional law, in denying to the members the right of free speech in any language they might select.
    The most notable recent instance, vindicating that right, is Meyer v. Nebraska, 262 U. S. 391, where it was held that “the protection of the federal constitution extends to those who speak other languages, as well as those wlm speak English,” and, further, that “An act of the legislature forbidding the teaching in school of airy other than the English language, until the pupil has reached the eighth grade, violates the guaranty o£ liberty in the fourteenth amendment to the federal constitution, in the absence of a sudden emergency rendering knowledge of the foreign language clearly harmful.”
    In other lands, notably in England, and in polite society quite generally, education is not deemed complete without the addition of another language. _ Our highest educational institutions, including our public schools, when not rocked in the madness of war, have departments of belle lettres, which include the acquisition of some foreign language.
    In Rome, according to Gibbon, “those who> united letters with business were equally conversant with both Greek and Latin, and he informs us “it was almost impossible in any province to find a Roman subject of a liberal education who was at once a stranger ti> the Greek and to the Latin tongues.” Gibb. Rome ch. 2.

    The province of Quebec, for two hundred years, has maintained a stable government, using two> languages, and Switzerland, the oldest republic extant, permits the use of three languages in official procedure. And, after all, it, is not the language which one uses, which indicates the measure of the man, or the extent and profundity of his patriotism, but the heart, the mind and the soul that inspires his utterances. Indeed, were it otherwise, the condemnation visited .upon the members of this lodge might well extend its potent influence, to suppress, at least, one member' of this court, who occasionally points a moral and adorns a tale, by invoking the classic tongue of Yirgil and Horace.
    The decree should be reversed.

      Mr. Olio A. Sliefel, for the complainant-appellant.

      Mr. William D. Wolfsheil, Mr. W. Holt Apgar and Mr. " Ralph E. Lum, for the clefendants-respondents.
   Per Curiam.

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

For affirmance — The Chief-Justice, JJrenchard, Parker, Black, Katzenbach, Campbell, Lloyd, Van Buskirk, Clark, McGlennon, Kays, JJ. 11.

For reversal—Minturn, J. 1.


text:
    In the matter of a paper-writing purporting to be the last will and testament of Charles Manning Freeman, deceased.
    [Argued January 23d, 1925.
    Decided February 20th, 1925.]
    On appeal of Harry Mo-hring.
    On appeal from a. decree in the prerogative court advised by Vice-Ordinary Buchanan, affirming decree of the Middle-sex orphans court, which denied probate to- an instrument propounded as the last will and testament of Charles M. Freeman, deceased.
    The opinions of Judge Kirkpatrick in the orphans court and that of Vice-Ordinary Buchanan, and reported in 2 N. J, Mis. R. 642.

      Mr. William H. K. Davey and Mr. Theodore Strong, for the appellant.

      Mr. Russell F. Waison, for the defendant Sallie B. Freeman.

      Mr. Thomas Brown submitted a brief for respondent Mary E. Wilkins Freeman.
   Per Curiam.

The orphans court, as will appear by the opinion of Judge Kirkpatrick, supra, refused probate to the paper offered as a will, on. the ground of lack of testamentary capacity, but considered that there was no satisfactory evidence to show undue influence. The vice-ordinary concurred in the view that testamentary capacity was wanting, but seem to have considered that there was ground for the conclusion that undue influence was also made out.

Our examination and consideration of the evidence and of the arguments and briefs of counsel leads us to a concurrence with the view of Judge Kirkpatrick, shared by the vice-ordinary, that the paper should be refused probate on the ground of lack of testamentary capacity.

Holding this view, we deem it unnecessary to deal with the matter of undue influence as. a basis for decision.

For the reasons expressed in the opinion of Judge Kirkpatrick bn the phase of testamentary capacity, the decree of ■ the prerogative court, affirming that of the Middlesex orphans court, will be affirmed.

For affirmance—Tt-ie Chief-Justice, Trenchard, Parker, Minturn, Black, Katzenbach, Lloyd, Gardner, Van Buskirk, Clark, McGlennon, Kays, JJ. 12.

For reversal—None.


text:
    In the matter of the grant of letters of administration on the estate of Ormisda Brugnoli, deceased. Elvira Brugnoli, respondent-appellee, v. Pio Brugnoli and Emilia Brugnoli, petitioners-appellants.
    [Argued October 24th, 1924.
    Decided January 19th, 1925.] .
    On appeal from a decree in the prerogative court advised by Vice-Chancellor Buchanan, whose conclusions are as follows :
    “The surrogate of Middlesex county granted letters of administration upon the estate of the above-named deceased to Elvira. Brugnoli [the respondent] as his widow. From this order of the surrogate, the present appellants, as the next of kin of decedent, appealed to the- orphans court, and, upon affirmance by the court, brought the present appeal.
    “The issue was as to whether Elvira Brugnoli was the widow of decedent, and this involved two questions—[1] was she ever married to Brugnoli, and [2] if so, was her prior husband living at the time of such marriage ?
    “The burden is, of course, upon the appellants, and after a careful consideration of the record before the orphans court and the additional evidence submitted in this court, I find myself unable to say that error has been proven, although, unquestionably, the evidence gives rise to grave doubts and suspicions. The ceremonial marriage was testified to by another witness. Orsena Lucia [as well as the widow], and her credibilitly has not been impeached, and cannot therefore be disregarded. And notwithstanding the prior marriage, the presumption, under the circumstances, is in favor of the validity of the second marriage. Tyll v. Keller•, 1 N. J. Adv. É. 317; 94 N. J. Eq. 486.

      “It may also be said that there is, at least, grave doubt as to the validity of the appeal to the orphans court, which was not taken until some two months or more after the surrogate’s order appealed from. The time for such appeal is limited by the statute to twenty days, and I do not see that the stipulation of the parties, that the appeal should be deemed to have been taken within time, could legally avail to validate it.
    “I think the costs should be paid out of the estate. There was good ground for the appeal, and the difficulty is obviously the result of decedent’s own conduct.”

      Mr. Harvey T. SaUerthwaiie, for the petitioners-appellants.

      Mr. Edward Sachar, for the respondent-appellee.
   Per Curiam.

So far as relates to the merits of the case, we see no adequate reason for holding that the learned vice-chancellor erred in his findings of fact on the evidence, and the decree of the prerogative court will therefore be affirmed, for the reasons stated by him in that regard. With respect to the doubt expressed by the learned vice-chancellor upon the question whether an appeal from the surrogate to the orphans court taken after the expiration of the statutory limitation was without the jurisdiction of that court and could not be heard by it, even upon the written stipulation of the parties waiving the limitation, our result upon the merits makes it unnecessary to deal with this aspect of the case, and we prefer to express no opinion thereon.

For affirmance—The Chiee-Justice, Tren chard, Parker, Minturn, Black, Katzenbaoh, Campbell, Lloyd, White, Gardner, Yan Buskirk, Clark, McGlennon, Kays, JJ. 14.

For reversal—None.


author: Per Ctjriam.

text:
    Ludlow R. Stevens, petitioner-respondent, v. Marjorie G. Stevens, defendant-appellant. Marjorie G. Stevens, defendant-appellant, v. Ludlow R. Stevens, petitioner-respondent.
    [Decided January 19th, 1925.]
    On appeals from decrees of the court of chancery advised by Vice-Chancellor Foster, who filed the following opinion:
    “The litigation between these parties began in February, 1921, when Mrs. Stevens filed a bill for maintenance. Petitioner filed an answer thereto, denying the charge; thereupon the bill was amended, to charge extreme cruelty, and asking for a divorce from bed and board, and Mr. Stevens in his answer denied this charge. This action was never brought on for hearing.
    “In August, 1922, petitioner filed his petition for a divorce on the ground of adultery. Mrs. Stevens filed an answer thereto denying the charge, and in a counter-claim charged petitioner with desertion and asked for relief thereon, and in addition pleaded recrimination and also charged petitioner with certain acts of adultery, at his office, with one Marie Sutz, on December 23d and 24th, 1920; and January 14th, 15th and 16th, 1921, and on every day between April 1st and April 8th, 1921. At the hearing these charges of adultery were, apparently, abandoned, and no proof was offered to establish them, and petitioner filed an answer denying all these charges.
    “There was no formal consolidation of these various causes, but counsel at the hearing agreed that they should be tried together. The hearing then proceeded, the petitioner first 'assuming the burden of proving the allegations of the petition that the defendants committed adultery on August 12th and 13th, 1922, on a steamer going from New York to Bermuda, and between August 14th and August 22d, 1922, at Bermuda, and August 22d and 23d, 1922, on a steamer sailing from Bermuda to New York, and on August 25th, 1922, at 79 Midland avenue, in Montclair, in this state.
    “The marriage and residence of the parties have been duly established, and all of the parties are between thirty and thirty-five years old.
    “The record is a voluminoirs one; the proofs offered to establish the allegations of the petition are substantially as follows:
    “Petitioner is engaged in the optical business; his wife has, or had, independent means through inheritance, and she owns the house at 79 Midland avenue, Montclair.
    “A child was born on July 2d, 1914. From about 1917 ’the parties had occasional quarrels over men who called on Mrs. Stevens, or who boarded with them, and particularly over her relations with one known as Edward S. Burton, and over petitioner’s relations with Miss Sutz, who was employed in his office. Although they continued to occupy the residence in Montclair for some time after that, the parties appear to have ceased cohabitation and to live separately since January, 1921.
    > “Mrs. Stevens met Paswaters at a party in February, 1922, and met him at social affairs occasionally thereafter. There was some estrangement between Paswaters and his wife over his acquaintance with Mrs. Stevens and other women during the spring and summer of 1922, and they separated in September of that year.
    “In August, 1922, Paswaters had decided to spend his vacation in Canada; when Mrs. Stevens requested him to secure passage for her for a trip to Bermuda, he bought the tickets, for which she paid him, and at the same time he canceled his Canadian trip and secured passage for himself on the same steamer on which Mrs. Stevens sailed, without notifying his wife of the change in his plans. They returned to New York from Bermuda on the afternoon of August 24th, and went to her residence on Midland avenue, Montclair. Dr. Stevens and his witnesses had kept them under observation from the hour of their arrival in New York until about four-thirty a. m. on August 25th, when Dr. Stevens, accompanied by Detective Corbally and several others, effected an entrance into the house and found Mrs. Stevens and Paswaters in bed together. He was in pajamas and she was wearing some kind of night clothes. Plis clothing was found in another room and part of it was taken and offered as an exhibit. Pas-waters requested the detectives to leave his golf knickerbockers as he wished to play golf the following day/ and also requested them to fasten the door through which they had entered when they went out, and Mrs. Stevens asked Cor-bally how they got in and what they wanted. She also told Dr. Stevens it was a dirty trick for him to do, and he told her he thought he was doing the right thing, and was justified in what he was doing.
    “There was no maid and no one else in the house at the time this raid was made.
    “The following day the defendants called on the representative of an estate in which Mrs. Stevens has an interest and told him what had happened, and later they went to friends of Mrs. Stevens in Connecticut, where they also told of the visit by Dr. Stevens and the detectives.
    “In addition, to a general and complete denial of all petitioner’s charges and evidence, defendants show that Mrs. Stevens knew Paswaters intended to spend his vacation in Canada; that she objected when she learned that Paswaters had booked passage on the same ship to Bermuda; that they occupied separate staterooms on the steamer and also occu-' pied different rooms in the hotel during their stay of a week in Bermuda; that Mrs. Stevens on the entire trip on the steamer was ill from seasickness and also suffered from severe hemorrhages, which was customary during her period of menstruation; that on their arrival in New York Mrs. Stevens was seriously ill, and that because of this Mr. Paswaters assisted her to her home in Montclair; that upon their arrival there they tried unsuccessfully to get someone to look after her, and that Paswaters was therefore obliged, so he thought, to remain all night alone in the house with her, in order to render her any assistance he could; that they occupied separate bedrooms, with the door of each room closed, and Pas-waters states that at this time he did not know Dr. Stevens, and presumed that she was divorced. He further testifies that at the time Dr. Stevens and the detectives entered the house he was asleep, and when the noise of their entrance awoke him he found Mrs. Stevens sitting on his bed, and when she attempt to get up the detective pushed her into a chair, but tried to push her down on the bed in which he was lying.
    “Tie further states that when he found her sitting on, or by his bed, he thought it was a frame-up, that she was acting in collusion with Dr. Stevens to blackmail him and to get money from him.
    “Defendants also offered evidence to show that Mrs. Stevens’ period of menstruation was about the second or third week in the month; that at these times she was very ill and was subject to severe hemorrhages, and that it was therefore impossible for her to have had intercourse with Paswaters on any of the dates named, and particularly on August 24th or 25th, when the so-called raid was made.
    “This summary presents substantially the evidence offered) on the part of the defendants, as no particular effort was made, aside from the testimony of Mrs. Stevens, which is largely uncorroborated, to establish any of the allegations of her bill, her cross-petition, or her amended cross-petition.
    “From my consideration of the entire record, I find the proofs to clearly and convincingly establish the charges of adultery alleged in the petition, and I will advise a decree for the petitioner, and will also advise that the bill, cross-petition and amended cross-petition be dismissed.”

      Mr. Merritt Lane, for Ludlow R. Stevens.

      Mr. Jacob L. Newman, for Marjorie G. Stevens.
   Per Ctjriam.

The appeal in the first of these cases brings up for review a decree of divorce in a suit brought by the husband against Ms wife for an alleged adultery. The decree in the second litigation was entered in a suit brought by the wife against the husband for maintenance: The cases were heard together and resulted in a decree in favor of the husband both in the divorce case and in the maintenance suit.

Each of these decrees will be affirmed, for the reasons stated in the opinion of the learned vice-chancellor filed in the court of chancery.

An application was made by counsel for the wife, Marjorie G. Stevens, for a counsel fee to be awarded for services rendered on the appeals. We think the application should be denied, and it will be so ordered.*

For affirmance—The Chiee-Justice, Teen chard, Parker, Mintuen, Black, Katzenbach, Campbell, Lloyd, White, Gardnee, Van Buskirk, Clark, McGlennon, Kays, JJ. 14.

For reversal—None.


text:
    Reardon Laundry Company, appellant, v. Daniel E. Reardon, respondent.
    [Decided January 19th, 1925.]
    ■ On appeal from a decree of the court of chancery advised by Vice-Chan cel lor Ingersoll, who filed the following opinion:
    “The complainant is a corporation of this state. Ohnmeiss, father and son, after having secured the stock held by the former partner, purchased of Reardon in November, 1923, all the stock held by him in the company. The corporation is now exclusively under the control of the Ohnmeiss family.
    “The defendant and one John W. Risley as partners, were, prior to the incorporation, conducting a laundry business, which business, together with its good-will, &c., was conveyed to the company. This conveyance was the consideration for which the.shares of stock were issued to the partners.
    “At the time of the purchase of the stock from Reardon there was some discussion of a change of the name of the company. The witnesses for the complainant, while admitting that this question did arise, insist that no agreement was consummated that a change should be effected.
    “The defendant swears that it was agreed by Ohnmeiss that the change would be made, but that they declined to fix a date for such change, and he, relying upon their statements, concluded the purchase without having this clause included in the agreement.
    “The defendant has since the sale entered into the laundry business in Atlantic Chry, where the business of the complainant is also situate. He uses the business name ‘Daniel E. Reardon’s Laundry.’ He also- has on his truck in .conspicuous letters the words 'Not connected with Reardon Laundry Company/
    “It is clear that there has been no attempt on the part of Reardon to deceive the public, but it is just as apparent that since Reardon has resumed business some of the patrons of the complainant company have ceased doing business with it, and resumed business relations with Reardon.
    “In the sale of the original business with its good-will,'&c., there was no agreement by either of the parties that they were not to engage in the laundry business. Nor. wa's there any such agreement at the time of the sale of the stock to Ohnmeiss. There is in this case no claim that the defendant has specially solicited the trade of those who were customers of the partnership business, although some have come to him, and he is justified in serving those who do come of their own motion.
    “Should he (Reardon) specially solicit customers o£ the former partnership, he might be restrained. Hilton v. Hilton, 89 N. J. Eq. 182.

    “It would not necessarily follow, however, that he could be restrained from specially soliciting customers of the complainant corporaiioñ, and no opinion is now expressed upon that question.
    “ 'The right of a man to use his own name in his own business is part of the natural and inalienable rights guaranteed by our constitution, without which the right to acquire, possess and protect property would be of little worth. Even in a ease of unfair competition, the courts go no further than to restrain the use of a name except when so marked as to distinguish it from a competitor, and this exception amounts to allowing the wrong-doer to continue the use of his own name when it is so marked/ Hilton v. Hilton, supra.

    “The sale by Reardon of his business conducted under that name, including its good-will, did not deny him the right to conduct a competing business in the absence of an express agreement on his part not to do so—it merely denied to bim the right to specifically solicit the trade of the customers of the business he sold. Nor did such sale deny to Reardon the right to use his own name in a competing business, so long as his name was not used in a manner calculated to deceive the public, and in that manner gather the fruits of the business he had sold. Auto Iiearse Manufacturing Go. v. Bateman, 109 All. Rep. 185.

      “I will advise a decree dismissing the bill.”

      Messrs. Gole & Cole, for the appellant.

      Messrs. Harcourl & Steelman, for the respondent.
   Per Curiam.

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

For affirmance—The Chibe-Justice, Tren chard, Parker, Minturn, Black, Katzbnbach, Campbell, Lloyd, White, Van Buskirk, Clark, McGlennon, Kays, JJ. 13.

For reversal—None.


text:
    In re the dissolution of the New Jersey Refrigerating Company.
    [Decided January 19th, 1925.]
    .On appeal from an order of the court of chancery advised by Vice-Chancellor Church.

      Messrs. Hudspeth & Demarest, for the appellants.

      Mr. J. Henry Harrison, for the respondents.
   Per Curiam.

The only matter involved in the determination of the present appeal is the validity of an order of the court of chancery, made upon the application of the receivers of the New Jersey Refrigerating Company, restraining the appellants, Otto A. Lembeck and Alfred J. 0. Allison, from further prosecuting actions at law, brought by them against the corporation prior to the appointment of the receivers, and requiring the transfer of those actions into the court of chancery for determination.

It is entirely settled that the court of chancery may permit an action to be brought in a court of law, having jurisdiction of the subject-matter thereof, by a creditor of a corporation against the receiver of such corporation, or may refuse such permission and compel the litigation to be prosecuted in the equity court. The mere fact that before the appointment of a receiver an action at law has been instituted against the corporation is immaterial in determining the question of the power of the court of chancery, after the appointment of the receiver, to take control of the litigation; for the judgment, if recovered by the plaintiff after the receiver has been appointed, must necessarily be enforced against the assets of the corporation in the hands of the court’s receiver, and such control is an incident to the preservation and distribution of such assets.

We conclude that the making of the order appealed from was within the discretion of the court, and that it should be affirmed.

For affirmance — The Chiee - Justice, Trbnchard, Parker, Mtnturn, Black, Katzenbach, Campbell, Lloyd, White, Van Buskirk, Clark, McGlennon, Kays, JJ. 13.

For reversal—None.


text:
    National Grocery Company, appellant, v. National Stores Corporation, respondent.
    [Decided January 19th, 1925.]
    On appeal from a decree of the court of chancery.

      Messrs. Edward & Smith, for the appellant.

      Messrs. Wall, Haight, Carey & Hartpence, for the respondent.
   Per Curiam.

The decree appeal from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Bentley, reported in 95 N. J. Eq. 588.

For affirmance—The Ci-iiee-Justice, Trenchard, Parker, Minturn, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskiek, Clark, McGlennon, Kays, JJ. 14.

For reversal—None.