text:
    The Hackensack Trust Company v. Mary Katherine Tracy et al.
    [Filed January 16th, 1917.]
    1. At common law, before issue born alive, the husband had an estate of freehold1 in his wife’s lands during their joint lives, and after such issue born, he acquired an estate of freehold in possession in those lands which continued for Ms own life. His interest was termed an estate by the curtesy initiate during the wife’s life, and consummate on her death.
    2. The Married' Woman’s act of 1852 deprived the husband of an estate by the curtesy initiate, that is, an estate of freehold during his wife’s lifetime, but did not affect the estate which he took upon her death. On the happening of that event he became entitled to a freehold estate in possession for the remainder of his own life, if there were issue born alive. And a wife cannot deprive her husband of such an estate by deed or will.
    3. A husband’s estate by the curtesy is not affected by section 7 of the supplement to the Descent act (P. Is. 1915 p. 61) if the marriage took place before that act went into effect on July 4th, 1915.
    4. A husband, after issue born alive, has a vested estate in remainder in his wife’s lands. This we now call an inchoate right of curtesy.
    5. While a husband, whose wife has not borne a child, has neither an estate by the curtesy initiate nor an inchoate right of curtesy in his wife’s lands, he has, nevertheless, a contingent estate in remainder in those lands; because, upon the happening of the contingency of issue born alive and of the husband surviving the wife, he would be entitled to an estate by the curtesy consummate, that is, a freehold estate in possession for the remainder of his life.
    6. An estate by the curtesy at common law depends upon four essentials, (1) that the wife be seized of an estate of inheritance to which issue of the marriage may possibly succeed as heir of the wife, (2) that the estate be or become, during coverture, an interest in possession, (3) that seisin in deed (less properly styled actual seisin) be obtained during coverture, and (4) .that issue be born alive. The transpiring of these four events constitute the contingency upon which an estate by the curtesy arises, that is, vests, in the husband in possession upon his wife’s death.
    7. A husband and wife executed1 mortgages upon her separate real estate which were foreclosed and produced surplus money, which retains the character of real estate for the purpose of succession and distribution, and the wife filed a petition praying for the payment of the surplus to her, without making her husband a party thereto and without averring whether or not issue had been born to the parties.- — Held, that in these circumstances the husband- is a necessary party to the proceedings as he is entitled- to be heard- on the question whether, having a contingent estate in remainder in her lands, he is entitled to have the surplus money protected and conserved to admit of his possibly succeeding to the enjoyment of it after her death.
    8. Even assuming that a husband has no interest whatever in his wife’s lands during her life before the birth of issue, nevertheless, on her petition for the proceeds of the sale of those lands, which are real estate for the purpose of succession and distribution, a presumption that there has been no issue born cannot be indulged in her favor, for his position may not be made worse by implication; besides, a presumption cannot be indulged in her favor on the face of the petition, as it is a rule that in construing a pleading that, view must be adopted which is most unfavorable to the pleader.
    9. Qumre: Can a wife, who has not borne her husband a child defeat his possible right to inchoate curtesy, and, ultimately, consummate curtesy, by reason of the involuntary sale of her land under execution producing surplus money, which money retains its character as land for the purpose of succession.
    On bill,, &c. On petition fqr surplus moneys.

      Mr. Cornelius W. Berdan, for the petitioner.
   Walker, Chancellor.

This is a foreclosure suit. Mary Katherine Tracy and James Tracjr, her husband, were the only defendants. The bill alleges that both of them were indebted to the complainant, on July 25th, 1912, in the sum of $1,000, and made their mortgage upon certain lands, in the county of Bergen, on that date to secure the debt. The bill also alleges that they were further indebted to the complainant, on June 28th, 1913, in a like sum of $1,000, and made their mortgage upon the same lands on the last-mentioned date to secure that debt. Such proceedings were had in the cause that a final decree was -made and entered on August 12th, 1916, in pursuance of which the mortgaged premises were sold by the sheriff for $4,000, leaving $1,680.44 of surplus moneys after the payment of the mortgage debt, principal, interest and costs.

The bill contains no allegation as to the ownership of the mortgaged premises. Mrs. Tracy has filed a petition in which it is averred that the land sold under the writ of execution in this cause was hers, and that she is therefore entitled to receive the surplus moneys, there being now no lien or encumbrance against the land sold.

If Mr. and Mrs. Tracy have had issue bom alive then the husband has a vested estate in remainder in his wife’s land. Doremus v. Paterson, 69 N. J. Eq. 188, 193; affirmed, Ibid. 775. And the proceeds of the sale of lands retain the character of real estate for the purpose of succession and distribution. Oberly v. Lerch, 18 N. J. Eq. 346; Servis v. Dorn, 76 N. J. Eq. 241.The petition for surplus contains no averment as to the birth of children; and even if they have not had issue the husband, nevertheless, lias' a contingent estate in remainder in the wife’s lands, as will presently be shown.

In Leach v. Leach, 69 N. J. Eq. 621, lands belonging to a wife were sold in foreclosure on a mortgage given by her and her husband, and the husband contested the immediate payment of any portion of the surplus to his wife. The parties were married in 1818 and had issue, a daughter, who was still alive. Vice-Chancellor Emery decided that the respective interests of the husband and wife in the proceeds of sale were, that the wife had an estate for her life with remainder to the husband for his life if he should survive her, with remainder over to the wife in fee — meaning, of course, the wife’s heirs — if ghe predeceased her husband. The application of the wife in the Leach Case was made under the Chancery act (Comp. Stat. p. 433 § 60'), which provides that if upon foreclosure there shall be paid into court any money representing an estate in dower or by curtesy, or for life or years, any person entitled to such estate may make application for a sum in gross| in lieu thereof and the court shall direct the payment of such sum out of the proceeds of such estate as shall be deemed a just and reasonable satisfaction for the same, and which the person so entitled shall consent in writing to accept in lieu thereof. See, also, Leach v. Leach, 72 N. J. Eq. 571, which was the same ease, on the question of the sum to be paid in gross to the wife.

If it were not for the Married Woman’s act of 1852 (Comp. Stat. p. 3223 § 1), which provides that the real and personal property of any woman who has married since July 4th, 1852, which she owned at the time of marriage, shall be and continue her sole and separate property, and, section 3, which provides that any such property received or obtained by her in any manner since that date, shall be her sole and separate property, Mrs. Tracy’s husband would be entitled to an estate of freehold for their joint lives if there be no issue born, and to an estate by the curtesy initiate in the surplus money in court in this cause if there were issue bom alive. Perhaps it is pertinent to here observe what that estate, which has been abrogated by our Married Woman’s act, was at common law. It was this:

Before issue bom .alive, the husband had an estate of- freehold in his wife”s lands during their joint lives. After such issue born, the husband acquired an estate of freehold in possession in those lands, which continued for his own life. It was termed an estate by the curtesy initiate during his wife’s life, and it became consummate on her death. The Married Woman’s act deprived the husband of the freehold during his wife’s life, but did not affect the estate which he took upon her death. On that event he became entitled to a freehold interest in possession for his own life. The wife could not deprive her husband of this estate by deed or will. Doremus v. Paterson, supra. If Mr. and Mrs. Tracy had a child bom alive, his estate would be one of “inchoate right of curtesy.” Trade Insurance Co. v. Barracliff, 45 N. J. Law 543, 550. And his estate would not be affected by section 7 of the supplement to the Descent act (P. L. 1915 p. 61), because their marriage took place before that act went into effect on July 4th, 1915. This appears from the fact that in 1912 and 1913 they made the mortgages which were foreclosed. The section expressly preserves estates, interests and rights of dower and curtesy which became vested before the act took effect. See Class v. Strack, 85 N. J. Eq. 319. And, undoubtedly, they would have been preserved without the saving clause. In re Alexander, 53 N. J. Eq. 96.

The question remains whether in case there has been no issue born to 'these parties the husband is entitled to any interest in the surplus money. Vice-Chancellor Emery, in Leach v. Leach, supra 72 N. J. Eq. (at p. 575) — says that Freemen on Partition lays it down that on the sale and distribution of the proceeds of the sale of lands in partition, the court has the power to determine the value of estates for life and years, and of all future estates vested and contingent, and to direct the amount.to be paid to the holders of each of such estates. The impression I got from reading this reference to Freemen on Partition was that the learned author was speaking of an inherent power of the court to determine the value of particular estates, but examination of the text of this work discloses that he was speaking only of statutory powers bestowed upon courts by legislation. The vice-chancellor goes on to observe that the conversion of lands''into money under a superior right (foreclosure in the case at bar) terminátes ipso facto precise property rights in the lands, and that the proceeds of sale, in strict legal theory, are held, not as lands, but rather as in lieu of lands for the ultimate purpose of compensating the parties interested in the lands. There is no conflict between this view and the one above mentioned, namely, that the proceeds of the sale of lands retain the character of real estate for the purpose of succession and distribution, for the compensation of the parties is made by way of distribution to those who had estates and rights in the lands sold, and in proportion to their respective interests therein. But this question of the husband’s possible interest in the fund, like the wife’s, cannot be adjudicated upon the facts before me. It cannot be presumed in favor of the wife that there hasi been no issue born, in which case she may be entitled to all of the surplus money, but if the husband appeared now, by reason of issue born alive, to ultimately have his inchoate right of curtesy become consummate upon the death of the wife during his lifetime, she would only be entitled to ah estate for her own life during their joint lives, as we have seen. On the contrary, the presumption of no issue born cannot'be indulged against the husband because his position may not be made worse by implication, and, besides, he is not a party to his wife’s petition for the surplus money. It is a cardinal rule that everyone who has an interest in the subject-matter of a judicial proceeding must be brought before the court to enable it to give relief to the applying party.

In Porch v. Fries, 18 N. J. Eq. 204, Chancellor Zabriskie (at p. 208) observes that under the Married Woman’s act of 1852 the husband has, during his wife’s life, no interest or estate in her lands; that she can sell them with his assent. Now, if the foreclosure had not taken place, Mrs. Tracy could not have consumed her real estate. Can she, by reason of that untoward circumstance, obtain and consume this surplus money which, as seen, is real estate for the purpose of succession? If she held the real estate, having no child, but, perhaps, having one in the future, then the husband’s inchoate right of curtesy would attach and reduce her estate to one for life only while they both lived. Again the question recurs, can she, under our law, deprive her husband of a possible interest which he may acquire in her lands by the birth of issue during their joint lives? The supreme court, in State, Covert, prosecutor, v. Hulick, 33 N. J. Law 307, observed (at p. 810) that the case of Porch v. Fries, then recently decided in the court of chancery, held that in cases coming within the provisions of the Married Woman’s act of 1852, a husband had no estate or interest in his wife’s land during her life. In this case, surveyors of the highways assessed damages for opening a road, to the wife only, who was the owner of the land, and not to her husband or to him and her jointly. This was held to be right. No question of the distribution of the award appears, and it does not appear whether there were any child or children of the parties. The remarks of Vice-Chancellor Howell In re Riva, 83 N. J. Eq. (at p. 205), where, speaking of In re Staheli, 78 N. J. Eq. 74, he says that the report shows that there were no children in that case, nor' any likelihood of any; hence the husband had not, and could not, gel any interest in the wife’s land, are pertinent. In the Staheli Case (at p. 78), Vice-Chancellor Stevenson notices the question of the deprivation of a husband’s possible curtesy in certain circumstances, and says (at p. 77) that there had been no issue of the marriage, and it was apparent that there would he none, and that, practically, the sole interest of the husband lay in the power he held to prevent his wife from conveying her property.

So far as I can find, the question asr to whether a wife who has not borne her husband a child can defeat his possible right to inchoate curtesy, and, ultimately, consummate curtesy, by reason of the involuntary sale of her land under execution producing surplus money, which móney retains its character as land for the purpose of succession, has not been decided.

The decided cases hold that the Married Woman’s act of 1852 operates to deprive the husband of an estate by the curtesy initiate — which was a freehold estate in possession — during their joint lives, but does not defeat the right of curtesy that he has in the event of the birth of issue, he surviving her. Therefore, do not the declarations in the opinions, that under the act in question a husband marrying after July 4th, 1852, can acquire no right or interest in his wife’s separate real property during their joint lives mean no possessory right or interest, and that that is the interest or estate of which he is deprived, and that only; and further, that the right and interest which he has to succeed to a freehold estate in possession for his own life after her death (issue being born alive) inheres in him from the time of the marriage until his death during her lifetime ? If so, why does not a married man have a contingent estate in remainder in his wife’s land during coverture before the birth of issue, just as he has a vested estate in remainder after the birth of issue? And if he has such a contingent estate in remainder in the given circumstances, why must not that estate be conserved for his possible succession to it?

I am just as unable to understand why the husband of a woman who has not borne a child has not a contingent estate in remainder in her lands as Vice-Chancellor Stevens was unable to understand why a husband, after issue born alive, had not a vested estate in remainder in his wife’s lands. Doremus v. Paterson, 69 N. J. Eq. (at p. 193). The husband’s interest in the former situation, to my mind, answers perfectly to the description of a contingent estate in remainder.

Speaking of remainders, it is said, in Chall. Real Prop. *60, that a remainder is an estate limited to commence after the determination of a particular estate previously limited by the same deed, and that deed must be taken to include any act of the lam. It is obvious that an estate by the curtesy arises by act and operation of law. And, speaking of contingent estates, Challis says (at p. *57) that their distinguishing quality of contingency is conferred upon them by the terms of their limitation, either by a provision that the specified person shall not take unless a contingency shall'happen, &c. Now, when Mrs. Tracy married her present husband, by act and operation of law he was clothed with a right, and therefore an interest, to succeed to the enjoyment of an estate in possession in her lands for liis life after her death, if he should survive her and there should be issue of the marriage born alive. As is well known, the estate by the curtesy depends upon four essentials — first, that the wife be seized of an estate of inheritance to which issue of the marriage may possibly succeed as the heir of the wife; second, that the estate be or become, during coverture, an interest in possession; third, that seisin in deed (less properly styled actual seisin) be obtained during coverture, and fourth, that issue be born alive. Chali. Real Prop. *£7’6. The transpiring of these four events constitute the contingency upon which ari estate by the curtesy arises — that is, vests in the husband in possession after his wife’s death. It is obvious that when a man marries a woman possessed of real estate, there is at least a possibility of his succeeding to the enjoyment of that estate in possession. He is one to whom his wife’s lands may come in remainder during his life after her death. As without the birth of issue he has no capacity to take in possession upon his wife’s death in his lifetime, the estate is not vested but contingent, because the essential contingency which would entitle him to take the estate, namely, the birth of issue, has not happened. But after the birth of issue his estate becomes vested. It then becomes an inchoate right of curtesy, as we have seen.

Referring again to Doremus v. Paterson, I desire to call attention to the-language of Vice-Chancellor Stevens — 69 N. J. Eq. (at p. 195). He said: “The freehold estate for their joint lives which the husband had at common law, immediately upon the marriage and before the birth of issue, was destroyed in toto by the Married Woman’s act.” In my opinion, that was all that was- destroyed, namely, the freehold estate in possession for their joint lives. The contingent interest that the husband has upon marriage has not been destroyed, for if ripens into an inchoate right of curtesy upon the birth of issue and blooms into a freehold upon the wife’s death in her husband’s lifetime. Vice-Chancellor Grey, in Bristol v. Skerry, 64 N. J. Eq. 624, held that a husband, notwithstanding the Married Woman’s act, has an equity in his wife’s lands which this court will recognize; that he still has power to prevent her from conveying them, and, a child being born, &c., he has curtesy.'

I hold that a husband upon marriage, notwithstanding the Married Woman’s act, immediately acquires a contingent estate in remainder in his wife’s land. That estate could certainly be created by deed or will upon the same contingency. That is, an estate for life in lands could be granted or devised to a married woman for her life with remainder to her husband for his life after her death, provided they have issue born alive. The only difference, is, that in the case of curtesy the estate arises by act and operation of law instead of by deed dr will, and, as we have seen, they amount to the same thing.

Eor want of a proper showing of. facts, Mrs. Tracy can have no relief on the petition before me. The pleading should show the daté of her marriage and whether or not she has had issue bom alive. It is a common law rule, which has not been changed by statute in this state, that a pleading must be construed against the pleader and that construction adopted which is most unfavorable to that party. 31 Cyc. 78. See, also, Stephens & Condit Trans. Co. v. Central Railroad Co., 33 N. J. Law 229. The application of this doctrine to the case before me requires a holding that it cannot be presumed in favor of the wife that she has borne her husband no issue. Chancellor Runyon’s decision, in Castner v. Sliker, 43 N. J. Eq. 8, ignores this doctrine, but he cites' no authority to support his proposition. Vice-Chancellor Stevens, in Doremus v. Paterson, says that Chancellor Runyon was right in his ruling, but I feel compelled to dissent from the learned vice-chancellor’s view also. Chief-Justice Gummere’s opinion, in Doremus v. Paterson, 69 N. J. Eq. 775, affirming the decision of Vice-Chancellor Stevens in the same case, rests the decision of the court of errors and appeals on grounds other than those touching the interests of married men in the real estate of their wives; in fact, that question does not appear to have been included in the appeal. In saying that I dissent from Vice-Chancellor Stevens’ view that Chancellor Runyon was right in Castner v. Sliker, I do not dissent from the learned vice-chancellor’s decision sustaining the demurrer in Doremus v. Paterson, supra. In that ease certain husbands joined their wives as complainants in a bill filed in respect to injury to their wives’ lands and because of the ownership of those lands by their respective wives. The bill did not show the birth of issue to any of the couples, and the vice-chancellor held that because it did not appear from the bill that either of the husbands had any such interest in the lands as made them, or either of them, proper parties complainant, the demurrer was sustained. That suit presented quite a different proposition than that of a wife seeking to obtain the possession of real property, or money which represents it, in such a way that she may con-, sume it, without making her husband a party to the suit and thus giving him an opportunity to protect his adverse interest. It may well be that when husband and wife file a bill to protect the latter’s real estate, and there is no allegation of issue born, that there should be no presumption to that effect. And it appears that he is not a necessary party to such a suit, for, by section 11 of the Married Woman’s act {Comp. Stat. p. SSSS), it is provided, inter alia, that a married woman may maintain an action in her own name and without joining her husband, for the recovery of her separate real property and for damage done to it. But, at least, when a married woman files a bill to recover money, the proceeds of the sale of real estate, which is land for the purpose of succession, and shows that she has a husband living, there cannot, in my judgment, be any presumption indulged against the husband that no issue has been born. Blackstone, speaking of matrimony, says that one main inducement to it is usually not only the desire of having children, but also the desire of procreating lawful heirs. 1 Bl. Com. 455. Blackstone wrote in the days of large families, .and, while sterility may now be more widespread than in his time, nevertheless, the vast majority of married couples have children, and, given a case of matrimony, it is rather doing violence to a natural presumption to hold that there can be no presumption of issue born.

Mrs. Tracy may file an amended petition charging her husband as a respondent on the question of the distribution of the surplus money in the case at bar. She should make averment of the facts which, as above pointed out, are necessary to the proper disposition of the matter before the court.


source: Caselaw Access Project

author: Stevens, V. C.

license: Public Domain

text:
    George T. Parrot et al., executors, v. Edna Rankin Rogers et al.
    [Decided July 29th, 1916.]
    1. Inheritance Tax law (1¡. Oomp. Stat. 1910 p. 5306 § 543), section 7, provides that any executor or trustee having charge of any legacy or property for distribution subject to the tax shall deduct the tax therefrom, or, if the legacy or property is not money, shall collect the tax thereon upon the appraised value thereof from the legatee, and shall not deliver any legacy until he has collected such tax. Testator bequeathed to his wife $100,000 and certain household effects, &c., and his home property in trust for life, or until remarriage, with remainder to certain children of his deceased brother, and also devised $100,000 in trust for investment and to use the' income to meet the taxes and other charges on the home property till sold, and to pay the balance of the income to his wife, and gave the residue of his estate to a brother and to the issue of his deceased brothers, and provided that certain provisions should be first carried out. — Held, that' the inheritance tax paid by the executors was payable out of the property left the wife, and not out of the residue.
    2. Where testator devised his homestead in trust for the use of his wife, and a certain amount in trust to meet the charges upon it, and then to pay the net income to her, the executors had no interest in the realty devised, and their only duty .as to amount held in trust was to pay it over to the trustee after deducting the tax.

      Messrs. McCarter .& English, for the complainants.

      Mr. Ohauncey G. Parker, for Mrs. Rogers.

      Mr. Frank II. Hall, for the infant defendants.

      Mr. Foster M. Voorhees, for. Union County Trust Company.
   Stevens, V. C.

The executors of George W. Rogers filed this bill praying a direction as to how the inheritance tax of $4,474.64 paid by them shall be apportioned among the beneficiaries named in his will.

Mr. Rogers died on April 2d, 1914, resident in this state. He left a widow, to whom by the third clause of his will, he bequeathed the sum of $100,000, and. by the fourth clause, certain furniture, household effects and the contents of his garage. -By tire fifth clause he devised to the Union County Trust Company of Elizabeth, his home property on North Broad street, in that city, in trust for the use of his wife during her life, or until she should remarry, with remainder to certain children of his deceased brother. He also gave to the same company the sum of $100,000 in trust, to keep the same safely invested, and out of the income to pay as much as might be necessary to meet the taxes, insurance, repairs and other charges on the home property until sold, and to pay all the income not required for such purpose semi-annually to his wife during the term aforesaid. He made various other bequests, and in the event of his dying childless (which he did), he gave the residue of his estate (speaking generally) to a brother and the issue of deceased brothers.

The question is whether the inheritance tax above mentioned is payable out of the property thus left to the wife, or whether it is payable out of the residue.

Section 7 of the Inheritance Tax law provides as follows:

“Any administrator,’ executor or trustee having in charge or trust any legacy or property for distribution subject to said tax, shall deduct the tax therefrom, or if the legacy or property be not money, he shall collect the tax thereon upon the appraised value thereof from the legatee or person entitled to such property, and lie shall not deliver or be compelled to deliver any specific legacy or property subject to tax, to any person until he shall have collected the tax thereon.”

The contention of counsel for Mrs. Rogers, as I understand it, is this: In every devolution of property from a decedent to a legatee or next of kin, there axe two successions — the succession from the decedent to the personal representative, and from the representative to the legatee or next of kin. The tax is not a legacy duty, but a succession tax. Neilson v. Russell, 76 N. J. Law 655; Carr v. Edwards, 84. N. J. Law 667. It is the first of these successions and not the second, that the legislature intended to fax. Consequently the tax must be paid by the estate and not by! the specific legatee. In other words, the tax, in terms imposed upon tire legacy is to fall, ultimately, not upon the legacy, but upon the residuary estate and upon those to whom that estate is given.

There is nothing in the act itself which sustains this contention. In plain words, it directs that as to pecuniary legacies, the executor shall deduct the tax from the legacy before he pays it over and that as to specific legacies or property, he shall not deliver them until he shall have collected the tax from the transferee. According to the scheme of the act, therefore, it is the second and not the first successor who is to bear the burden. The statute does not provide that the executor shall subsequently refund the amount deducted to the legatee. If the legislature had intended to make the residuary estate bear the burden, it need only have directed that the executor should treat the tax as he would any other debt and pay it in a due course of administration. Why take it from the legatee, only to give it back to him?

The obvious intention of the legislature was to frame a scheme in which lineal descendants, including husband and wife, should be more lightly taxed than collaterals. The construction contended for would relieve collaterals altogether and generally throw the entire burden on lineal descendants or nearest of kin; for they, as a rule, take the residue. See Wyckoff v. O’Neil, 72 N. J. Eq. 880.

The second contention is, that if the tax is under the act payable by the legatee, yet the testator may provide that the executors shall pay it out of the residue and that he has done so in this instance. The rule invoked is, that where the testator directs the amount of the legacy to be paid “without deduction” or “free and clear” of such tax, the tax will then be payable out of the residuary estate. 24 Cyc. 475; In re Maryon-Wilson (1900), 1 Ch. 565. As far as I can see, there is nothing in the will that brings the case within this rule. The introduction to the ninth paragraph does not touch the subject and the provision in'the tenth, that (inter alia) the third, fourth and the fifth clauses and the provisions therein contained, shall he first and in all respects observed' and carried out, adds emphasis perhaps to the duty of the executors faithfully to perform their trust, but does not vary testator’s directions.

The third question -does not seem to be within the issues, raised by the pleadings. The fifth clause of the will- devises the homestead to the Union County Trust Company, and gives it $100,000 to keep down the-charges upon it, and then to pay the net income to Mrs. Bogers. The bill is filed by the executors. They have no interest in the real estate devised and their only duty in the case of the hundred thousand dollar fund is to pay it over to the trustee after deducting the tax.


author: Leaming, V. C.

text:
    Margate Company v. Annie E. Hand et al.
    [Submitted June 15th, 1916.
    Determined June 23d, 1916.]
    The law court possesses summary jurisdiction of equitable nature to control its own process of execution, and until it has been finally executed and such court cannot give other relief, chancery will not enjoin execution on the mere ground that a description of the property in the notice of sale is inadequate.

      On bill for injunction. On hearing on return of order to show cause.

      Messrs. Godfrey ,& Read, for the complainant.

      Mr. William M. Clevenger, for the defendants.
   Leaming, V. C.

The bill herein has been filed for the purpose of procuring an injunction restraining a sale of complainant’s land by the sheriff of Atlantic county under a writ of execution issued out of the Atlantic county circuit court. The bill avers that the notices of sale describe the land to be sold as follows: “All real estate owned by Margate Company, in the city of Margate, or elsewhere in the county of Atlantic, in the State of New Jersey, and also any interest of any kind or character which the said Margate Company has in lands 'and real estate in Margate City or elsewhere in Atlantic county, New Jersey.” The bill avers that this is an insufficient description to identify the land to be sold or to sufficiently apprise prospective purchasers of the land intended to be sold and is for that reason operative to cause irreparable injury to complainant.

The only ground of relief presented by the bill is inadequacy of description. Ho fraud or inequitable conduct is alleged. The injury which may result from a sale, the notice of which is in the language above quoted, is made the sole ground for this -court to interfere with or prevent a judicial sale under a process of execution issued out of a court of law.

I am unable to find justification for such interference on the part of this court. The court of law out of which the process of execution has issued possesses a summary jurisdiction to control its own process; that jurisdiction is of an equitable nature for the purpose of preventing its own judgments and processes from being the me'ans of working injustice, and that jurisdiction of the law court exists until the process has been finally executed. After the process has been finally executed, and the law court has thereby become unable to grant the relief sought, this court may, in proper circumstances, afford a remedy; but I am unable to find justification for interference by this court in a case of this nature so long as the execution of the process is under the full and complete control of the law court with power in that court to exercise a summary jurisdiction of an equitable nature for the purposes already stated. Miller v. Barber, 73 N. J. Law 38; Palladino v. Hilpret, 72 N. J. Eq. 270; Marr v. Marr; 73 N. J. Eq. 643 (at p. 654); Ludlam v. Pennsylvania Realty Co., 83 N. J. Eq. 130. The procedure of the law court in such cases on an order to show cause, as in Canfield v. Browning, 69 N. J. Law 553, is simple and expeditious; should this court be deemed to possess a concurrent jurisdiction, no justification can be found for its exercise in a case based wholly upon the claim that a notice of sale under a writ of execution issued out of a law court is inadequate.

I will advise an order discharging the order to show cause.


author: Howell, V. C.

text:
    Lizzie H. Leithoff et al., executors; &c., v. John Dennis et al.
    [Decided June 27th, 1916.]
    1. An attorney who occasionally collected the interest on mortgages left in his office, and advised the owners regarding other loans, Held unauthorized to sell them.
    2. An owner of mortgages does not lose title to them by a forged assignment.
    ■ 3. The deposit of mortgages with an attorney of good professional and business standing is not negligence, and does not estop the owners from attacking his fraudulent assignment of them.
    4. Where an attorney prepared an assignment of certain mortgages belonging to his clients and attached to it a sheet bearing the clients’ signatures, which he obtained in some unexplained manner, the clients were not estopped by the attorney’s possession of their signatures from attacking the assignment.

      On final hearing on bill, answer, replication and proofs.

      Mr. Francis Child, Jr., for the complainants.

      Mr. Francis Lafferty, for the defendant John Dennis.

      Mr. Archibald F. Slingerland and Mr. Conover English, for the Liberty Trust Company.

      Mr. Edwards T. Casebolt, for the defendant Alice Macknet.
   Howell, V. C.

The bill in this case is filed for the purpose of setting aside a certain alleged assignment' or transfer of eight mortgages belonging to the complainants; such supposed transfer having been made to the defendant John Dennis. The facts are that prior to August 25th, 1911, the complainants, in the capacity of executors of and trustees under the last will of August Loehnberg, had in their possession a large number of bonds and mortgages which they held as investments of the. funds of the estate. During the lifetime of James M. C. Morrow, a solicitor of this court, who died in 1906, the executors were accustomed to retain his services to superintend the.mortgage loans made by them. At that time one Eoland D. Crocker, a solicitor of this court, was a clerk in the office of Mr. Morrow, and apparently had more or less to do with the business of the executors. Mr. Morrow was a man of unblemished reputation and in every way worthy of the confidence of the executors. They, reposing confidence in him, .kept their investment mortgages in one of his safes. This course of conduct was continued down to the death 1 of Mr. Morrow, at which time Crocker'succeeded as supervisor of the loans made by the "estate. From 1906 down to 1914, when Crocker disappeared, he was called upon to examine ■ a small number of loans. The mortgages, however, remained in the same safe in which Mr. Morrow had previously kept them, and access to them was openly and freely had by Crocker down to the time he.made his disappearance. It appears that occasionally Crocker collected interest on some of the estate mortgages and paid it over -to Mr. Schwartzwaelder, who kept the estate account.

I have examined the testimony carefully for evidence that Crocker was in some way or to some extent the agent of the complainants, but nowhere do I find any evidence that he was the general agent of the complainants to buy, sell and deal in and transfer and assign mortgages which they had taken as investments; nor is there any evidence that he was specially authorized by the executors, either expressly or by implication, to sell or offer for sale the several mortgages which are the basis of this litigation. The final disposition of this case seems to me to turn on the question of agency or no agency. If Crocker can be said to have been the complainants’ agent, and to have acted within his authority in doing what he is charged with having done, then the case must be quickly decided against the complainants. If, however, I come to the conclusion that there was no such agency, then the thing that Crocker did was to commit the crime of forgery, an act falling beyond the scope of any agency.

The pertinent facts of the case are as follows: Doctor Dennis had about $25,000 to invest; he applied to Mr. Poole, who had previously acted as his legal adviser*. Mr. Poole and Crocker had offices in the same suite, although they were not connected together in business. A few days later Mr. Poole informed the doctor that he had found some mortgages and he'produced a list of several which he said belonged to the Loehnberg estate, and that the Loehnberg estate had to dispose of them because it needed the money to pay off some of the heirs. The doctor went with Mr. Poole and examined all the properties, nine in number, on which these mortgages were liens, and in conclusion decided that he would purchase the mortgages. They were all embodied in a typewritten assignment, which was prepared by Crocker, and bears date tire 24th day of August, 1911; its execution was apparently acknowledged before Crocker on August 26th, 1911, and it was recorded in the office of the register of deeds of Essex county on September 20th, 1911, in Book 101 of Assignments of Mortgages, pages 44 and-45. The document contains at the end the signatures of the complainants; they appear to have been witnessed by Crocker. The complainants had no knowledge of any of the transactions complained of until after Crocker disappeared in the fall of 1914. The complainants admit the genuineness of their signatures to the document in question; they say that they undoubtedly signed the sheet with their own hands, but they likewise say that it. was not for the purpose of assigning the nine mortgages mentioned therein, but for some other purpose at present unknown to them, and that after their signatures had been written, as they appear to be written on the fourth sheet of the instrument in question, someone, and, presumably, Crocker, took the former document apart and inserted three new sheets, being the three top sheets, and put the paper together again. It is quite apparent, upon a close examination of the instrument in question, that at some time or other in its history it has been tampered with. The first three sheets were not written on the same typewriting machine as was the last sheet; that is apparent upon the most cursory examination of the paper and comparison of the sheets. The typewriting on the fourth sheet was done on a machine whose types were very much worn, particularly were they worn at the bottom of the line. The paper on which the three top sheets were written seems to be of a different texture from that on which the fourth sheet was written; the marginal ratings are not all the same width, and by turning over the top fold through which the eyelets are placed, the duplicate holes in the last sheet may be seen, showing that the last sheet had probably at some time or other composed a portion of another document. A day was fixed for closing the transaction, and it was closed on that day at Poole’s office. Dennis paid the money, $24,900, and received the assignment, apparently in the form in which it now is, which was sent by Poole to be recorded and was received by him from the record office when it was finished, and was delivered by him subsequently to Doctor Dennis, who produced it at the hearing and in whose possession he testifies it has always been. With the assignment in question there was delivered "to Dr. Dennis the mortgages upon which the supposed assignment operated, and these the doctor says remained in his possession until some of them were sold or assigned, and that those which were not so sold or assigned are in his possession still and were produced by him at the hearing. All this transaction took place without any 'knowledge or intimation on the part of the complainants; so far as they were concerned, they had left their mortgages in Crocker’s safe and rested in full security upon the deposit thus made. The question is whether they must lose their mortgages because of the fraud committed by someone else, of which they had no knowledge and to which they made no contribution.

It is thoroughly well settled, requiring no citation of authorities, that one cannot be deprived of the title and ownership of his property by forgery, theft or other fraud to which he has not in any way contributed. Sometimes one may by his negligence be found to be a contributor to his own undoing, and it is alleged, on the part of one of the defendants in this case, that that principle applies to the complainants here; they say that it was negligent on the part of the complainants to leave their bonds and mortgages in the possession of anyone who might use them for his own ulterior purposes. I do not think that this defence can prevail. I see no negligence in an investor leaving his investment securities in the hands of a third person, nor can there be any presumption or inference of that kind of negligence from the fact that he leaves his mortgage securities with his attorney. It appears in this case that up to the time of his disappearance Crocker had enjoyed an unblemished reputation; that he was a lawyer in good standing at the bar, and that he was chairman of the executive committee, and the leading member thereof, of the Liberty Trust Company, a New Jersey corporation, carrying on the business of a trust Gompany in the city of Newark. It is a very common thing for people to deposit their bonds and mortgages, and ether documents quite as important, such as wills, contracts, title deeds and other valuable papers, with their attorneys. I do not think that this fapt shifts the burden of proof, or permits the inference to be made that the complainants have themselves contributed to the loss.

Now, taking up the instrument itself, it purports to assign nine mortgages which are designated in the case by the following names: (1) Hughes, $5,000; (2) Iwers, $2,000; (3) Iwers, $500; (4) Newman, $9,000; (5) Newman, $600; (6) Heineman, $1,000; (7) Hunkels, $3,000; (8) Bock, $2,400; (9) Murray, $3,000. The testimony shows that the Murray mortgage had been paid off before the Dennis assignment was made, leaving eight mortgages which were supposed to have been covered by the assignment.

Another assignment now turns up, of which we have only a certified copy from the record in. the office of the register of deeds, which purports to have been made by the complainants to the said John Dennis, by which six mortgages were assigned to him, viz., (1) Hughes, $5,000; (2) Iwers, $2,000; (3) Iwers, $500; (4) Newman, $9,000; (5) Newman, $600; (6) Heine-man, $1,000. This assignment purports to have been made on August 25th, 1911, to have been'acknowledged on August 26th, Í911, and to have been recorded on September 20th, 1911. These three dates corresponding with similar dates ,of the first assignment above referred to, which I shall call the nine-mortgage assignment. It was, evidently, the purpose of the perpetrator of all these frauds to substitute on the record the six-mortgage assignment jin the place of .the nine-mortgage assignment, because the nine-mortgage assignment does not appear ever to have been recorded.

Still another assignment turns up, purporting to have been made by the complainants to Doctor Dennis. This bears date September 19th, 1911, acknowledged on the same day, and recorded on October 16th, 1911. This purports to assign three mortgages — (1) Hunkels, $3,000; (2) Bock," $2,400; (3) Murray, $3,000. The Murray mortgage having been previously paid off.

It is quite apparent from an examination of these three assignments of the manner in which the signatures were witnessed and the acknowledgments taken that the man who committed the frauds was no other than Crocker. By his manipulation of the nine-mortgage assignment, and keeping it off the record, he was able to reserve six mortgages (or five with the Murray mortgage left out) with which to carry on further fraudulent operations.

I am, therefore, constrained to hold that the complainants never lost title to the bond and mortgages in question and that Dr. Dennis obtained no title thereto. The only argument that has occurred to me to point in the contrary direction lies in the fact that in some manner, and by some means which are absolutely unknown and unexplained, Crocker got into his possession the genuine signatures of the complainants and was thereby enabled to commit the forgery of which he is guilty. There being no evidence on this point, I do not think that under the circumstances I can assume or infer that Crocker came into possession of them either rightfully or wrongfully. It was held, by the court of errors and appeals in the case of Heyder v. Building and Loan Association, 42 N. J. Eq. 403, that where one gives to another the power to practice a fraud upon innocent parties, the court will not interfere for his protection at the instance of those who have been deceived and misled by such fraud. There the owner of a mortgage permitted the document to remain in the custody and under the control of the mortgagor, and thus the mortgagor was enabled to commit a fraud upon the mortgagee by canceling the mortgage unlawfully. The mortgagee could not have any relief against this fraud, for the reason that he contributed to it. That case, however, cannot apply to the facts now before the court, for the reason that it is not proved that the complainants had anything to do with putting Crocker into possession of the fourth sheet of the "nine-mortgage” assignment containing their genuine signatures. If there is any inference to be drawn from all the facts and circumstances, so far as we know them, it is that Crocker obtained this sheet unlawfully, and if he did obtain it unlawfully, the complainants cannot be affected thereby. This view of the case results in the restoration to the complainants of the mortgages in question and gives to them their original title thereto. It takes from Dr. Dennis any right to the mortgages still held by him and compels him to account for the proceeds of such of the mortgages as have been paid to him. Dr. Dennis cannot be charged with the Hunkels mortgage because he never got title to it, and while it appears of record to have been assigned by Dr. Dennis to one Hurlbut, Dr. Dennis testifies that his signature to the assignment is a forgery, and it is not denied; no title therefore ever vested in Hurlbut, and for the same reason he could not transfer any title to the Liberty Trust Company.

The decree will provide for the restoration of that mortgage to the complainants if the pleadings are in proper, shape for that purpose.

The Heineman mortgage, which was supposed to have been transferred to Dr. Dennis, and by him to Alice Macknet, will be disposed of by the decree upon the same principles.


author: Lewis, V. C.

text:
    Steinhardt Brothers & Company v. Sophia Cohen et al.
    [Decided August 14th, 1916.]
    On a bill by the assignee of a second mortgage to foreclose, claiming that it was a first mortgage lien superior to mortgage of one who had loaned the mortgagor the money to pay off a first mortgage, and who claimed under an agreement between complainant and himself, subordinating complainant’s mortgage to the first mortgage, and also as an assignee of the first mortgage, where such mortgagee and assignee claimed that, though made a party defendant, he had never had any process served upon him, or any notice until the final decree of foreclosure and the advertisement of the property for sale, the final decree will be opened and his executors permitted to file a cross-bill.

      Messrs. Hudspeth & RysdyTc, for the complainant.

      Messrs. Gross & Gross, for the defendants.
   Lewis, V. C.

The rule to show cause in this case should be made absolute. The rule directed to the complainant was to show cause why a final decree taken in the above-entitled case should not be opened and the executors permitted to file a cross-bill. It was urged by the solicitors for the complainant that the relief prayed for be refused, inasmuch as the executors had not applied for the opening of the decree within the time allowed for an appeal. Eor a full understanding of the matter, the following facts in the case are set forth:

On September 10th, 1906, Sophia Cohen and Morris Cohen, her husband, mortgaged premises known as lot seventy-two (12), in block seventeen (11), on map entitled “Map of Claremont, Bergen Heights, New Jersey,” to one Mary Jane Moriarty, which said mortgage became due on September 10th, 1908, but time for payment thereof was extended to July 26th, 1909.

One William Strasser held a second mortgage on the same premises in the sum of one thousand dollars ($1,000), payable September 10th, 1908, but subsequently assigned same to the above-named complainant, which assignment bears date the 21th day of April, 1901. There is due on said mortgage the sum of five hundred and fifty dollars ($550).

On July 21th, 1909, payment of the first mortgage held by Mary J. Moriarty was demanded, and one Dudley D. Elemming was asked by Sophia Cohen to loan her said sum of twenty-five hundred dollars ($2,500), in order that she might pay over the said mortgage of Mary Jane Moriarty.

Said Elemming refused to do so unless the loan was secured by first mortgage on the above-described premises, and thereupon an agreement was entered into between Steinhardt Brothers & Company, the above-named complainant, and said Elemming, subordinating the mortgage of Steinhardt Brothers & Company to the mortgage made by Sophia Cohen on July 26th, 1912, and recorded July 21th, 1912, in the office of the register of Hudson county, in book 611 of mortgages, pages 12, &c.

On August 6th, 1909, in order to more fully secure the said Dudley D. Elemming, an assignment of the mortgage held by Mary Jane Moriarty was taken.

On October 1th, 1913, Steinhardt Brothers & Company, the above-named complainant, filed a bill of complaint to foreclose their mortgage, claiming that the same was a first mortgage lien and charge against the premises in question and superior in lien and charge to the bond and mortgage of Dudley D. Elemming.

Said Dudley D. Flemming was made a party defendant but claims that he never had any process of subpoena served upon him and that he never had any notice of said suit until the said property was advertised for sale.

On December 12th, 1913, a final decree advising the amount of five hundred and ninety-one dollars and ninety-nine cents ($591.99) on principal and interest with taxed costs amounting to eighty-five dollars and eighty-two cents ($85.82). On January 29th, 1914, the said premises were advertised for sale. It is claimed that this was the first notice which Flemming received of the foregoing proceedings, and' he immediately informed Isaac Gross, a member of the firm of Gross & Gross, -solicitors of Steinhardt Brothers & Company, that he had a subordination agreement made by Steinhardt Brothers & Company as aforesaid.

In the month of March, 1914, the said Flemming called upon his solicitor and submitted to him the correspondence which he had had with Messrs. Gross & Gross, referring to' the foreclosure of the mortgage and informed him that the first notice he ever had of the foreclosure was the letter which he received from Messrs. Gross & Gross, stating that the premises were to be sold. Robert S. Hudspeth, F'lemming!'s solicitor, thereupon saw Mr. Isaac Gross, of the firm of Gross & Gross, and told him that Flemming had never been served and also showed to him a copy of the subordination agreement made by the said Steinhardt Brothers & Company. Said Isaac Gross replied that he would see his client, and in the meantime it was agreed that the said Isaac Gross might collect the rents of the said property to pay the taxes and preserve the interest of his clients and to recover the expenses incurred by his clients provided this could be done without prejudice to the rights of Flemming or his mortgage. It was agreed in the meantime, ■ pending the settlement, that no proceedings were to be taken under the final decree, and the sale of the said premises was adjourned from time to time.

On April 10th, 1914, said Flemming died and David R. Daley and Isaac Edge qualified as his executors. .Said Isaac Gross continued to collect the rents in accordance with the understanding between him and Flemming’s solicitor and was still collecting rents in November, 1915, when the executors of Flemming applied for a bill of revivor, for the purpose of opening the final decree entered in the above-entitled cause. An order was made permitting the executors to open the final decree.

In the affidavit before me, Isaac Gross, Esq., solicitor of the defendants, admits the statement of Robert S. Hudspeth, Esq., as to his call after the entry 'of the final decree. He says, however, that he did not express surprise as to the subordination agreement, for he had already been shown a copy of it by Mr. William A. Lewis. He further said that he informed Mr. Hudspeth that the matter had already been held up so long that his clients had decided to stand upon their decree and that Flemming was not entitled to any consideration, because of his negligence and laches. When informed by Mr. Hudspeth at the interview that Mr. Flemming claimed not to have been served with process, Gross told him, he says, he would investigate the matter.- This he did thereafter, making inquiry of the deputy sheriff who made the service in the case, as to whether or not service was effected and in what manner. He was informed that the process of subpoena with ticket annexed had been served personally upon Flemming, and says that he himself examined the return to the- subpoena and ascertained therefrom that personal service of the subpoena with ticket annexed was made upon the said Flemming.

Gross denies any arrangement or agreement of any kind or character between himself and Hudspeth, whereby he was to be permitted to collect the rents of the mortgaged property.

It was contended by the solicitor of the complainant that the case of Sparks v. Fortescue, 75 N. J. Eq. 586, was dispositive herein. The situation presented in that case differs materially from that in the one under consideration. In the Fortescue Case there was no charge of imposition. The case was litigated and the decree was not ex parte. In the case at bar, the party seeking to open the decree never had a right of appeal, and, furthermore, claims never to have been served with process. In Jones v. Jones, 82 N. J. Eq. 558, this court considered the rule laid down in the case of Sparks v. Fortescue and decided that it did not apply to cases which were heard ex parte, because a defaulting party cannot appeal.

It would be highly inequitable and would work a grave injustice, in view of the facts presented on this application, to deny the motion made on behalf of the defendants. A review of them must convince anyone that the complainant had full knowledge of the situation and that the attempt now to defeat the defendants’ rights should not be permitted. The court of equity will always grant a rehearing where fraud or injustice has been done. Easton v. New York Railway Co., 30 N. J. Eq. 236.

Let the decree'be opened and the defendants permitted to file a cross-bill.


text:
    Supreme Lodge, Knights of Pythias, v. Lillian M. Rutzler, trustee, et al.
    [Decided September 20th, 1916.]
    Where a fraternal insurance policy was payable to one of the daughters bf insured, as trustee for a minor daughter, and there was an oral understanding that, in case anything happened to the minor daughter, it was to revert to her sisters, and the minor daughter survived insured, but died before the benefit was paid, her administratrix, and not the trustee or the sisters, is entitled to the proceeds of the policy.
    On bill, answer, replication and proofs.

      Messrs. McDermott & Enright, for the complainant.

      Mr. Frank Q. Turner, for the defendants..
   Lewis, V. C.

This is on bill praying for an injunction to enjoin and restrain a suit at law brought by Lillian M. Rutzler, trustee, against the complainant in this suit.

Henry B- Lupton was a member of section 137 of the Endowment Rank, Knights of Pythias, and under the certificate of membership, issued to him, the board of control of that order agreed to pay to his daughter, Lillian M. Rutzler, as trustee for Florence S. Lupton, the sum of $1,000. Henry B. Lupton died intestate February 2d, 1911; his daughter, Florence S. Lupton, the beneficiary in the policy mentioned, died in May, 1911, a little over three months after the death of her father, and before the payment of the amount secured in the policy. Letters of administration upon the estate of Florence S. Lupton were granted to her mother, Anna R. Lupton, to whom the complainant paid the sum of $1,000 mentioned in the policy. She thereupon proceeded to pay the funeral expenses, doctor’s bill for last sickness, cost of burial plot.in the cemetery, surrogate’s fees, bills for flowers, cost of monument at grave, and a few minor debts, and for nursing, board and incidental expenses. After making these payments, she divided the balance into three parts, and sent checks for one-third each to her living daughters, Mrs. Haws and Mrs. Rutzler. The daughters did not use the cheeks so sent them. Mr. and Mrs. Lupton had not lived together for a great many years preceding his death. Florence continued to reside, with her mother. The policy was originally made yjayable to the two other daughters, Mrs. Haws and Mrs. Rutzler, but on February 3d, 1906, at the wish of the father, the two daughters, Lillian and Emily, consented to have the policy made payable to Lillian as trustee for her sister Florence. Mrs. Rutzler’s testimony in regard to that is as follows:

“Q. Now, previous to the time of, that change, did you have any talk with your father in reference to it?
“A. Yes, sir.
“Q. What was the conversation which you had prior to the change?
“A. My father thought, inasmuch as we two girls were provided for by marriage, that it was only fair to look after the unmarried sister, ■which we agreed upon, and it was, therefore, changed to her, with m'e as trustee to look after the fund, if anything happened to my father.
“Q. What, if any, conversation, did you have with your father in reference to the disposition of the fund?
“A. It was to revert back to my sister and myself, in equal shares.”

On this point Mrs. Haws testified as follows:

“Q. Now, tell us what the conversation was at the time that the policy was to be changed.
"A. I cannot talk very loud, but at that time my father and my oldest sister and myself talked it over, and decided that as we two girls had been provided for in marriage, that it would be the best thing to let this money go to my younger sister, Florence, but knowing that she was not strong, and never had been, and at that time he said that at any time anything should happen whereby Florence should not get this money, that it should revert to my older sister and myself, as the policy had originally stood.”

After the death of the father, and before the death of Florence, the trustee notified the Knights of P.ythias of her father’s death and demanded that the money be paid to her as trustee for her sister Florence, as provided for in the policy.

The Knights of Pythias had not paid over the amount of the policy at the time of the death of Florence, and on the mother’s taking out letters of administration on the estate of Florence, the Knights of Pythias paid over the money to the mother as administratrix of her daughter’s estate.

Doubtless the prudent thing for the complainant to have done would have been to file a bill of interpleader, pay the money into court and let the administratrix and trustee contest the matter. This was not done, however. The Knights of Pythias took a chance and cut across lots by paying the money directly to the administratrix, apparently reaching the same conclusion that I have reached, viz., that only in the event that Florence predeceased him was the policy to be paid to the two other daughters. That being the case, if the Knights of Pythias had paid the money over to the trastee, there was nothing for the trustee to do but to turn it over to the administratrix.

Hnder these circumstances, at the present time, the parents of a minor are entitled to all of the personal estate of their deceased minor children. (See laws of N. J., 1914, section 169, sub-section III., page 71.) But as Florence died in 1911, that' act would not apply, and the mother and the two daughters would, therefore, each be entitled to one-third, after the payment of debts, funeral charges and just expenses.

The mother, as’ administratrix, says that she has used up all the estate, but I understand there has been no final accounting. It seems to me that there should be a final accounting and the two daughters can file their exceptions, and if they can show that there is anything coming to them, the bondsmen would be liable in case the mother has no estate. In any event, I think the complainant has done the correct thing, and the prayer of the bill will be granted.


author: Backes, V. C.

text:
    William F. Metlar v. Anna Metlar Williams et al.
    [Submitted March 2d, 1916.
    Decided June 9th, 1916.]
    1. The statutes of limitations do not run on the claim of one spouse against the other during the continuance of the marital state.
    2. A presumption of payment does not arise from the lapse of twenty years of non-payment of claims held by one spouse against the other during the marriage state.
    3. A partial payment of a debt or a valid acknowledgment of it, made after twenty years from the due date, effectually overcomes the presumption of payment arising from efflux of time.

      Mr. Freeman Woodbridge, for the complainant.

      Mr. Theodore Strong, for the defendants.
   Backes, V. C.

This is a partition bill. The lands consist of two large adjoining farms in Middlesex county, and were owned by George W. Metlar, who died intestate October 18th, 1912, leaving him surviving his widow, Catharine A. Metlar (who has since died), and five children, among whom partition has been ordered, and is about to be made by commissioners.

By a cross-bill the executors of Catharine A. Metlar, the widow, seek to foreclose a mortgage of $15,000 on one of the tracts known as the “Boss Hall Farm.” This mortgage was made by George W. Metlar, the intestate, and bis wife, to John Yan Doren, Mrs. Metlar’s father, February 1st, 1878, payable in one year, and by Yan Doren’s administrator, on June 13th, 1893, assigned to Mrs. Metlar, evidently as part of her share of her father’s estate. Mrs. Metlar’s will creates inequalities of inheritance among her children, hence the foreclosure of the mortgage. In answer to the cross-bill, the complainant, who was discriminated against, sets up the statute of limitations, and payment; particularizing that nothing was paid on account of principal or interest for upwards of twenty years, on the mortgage or on the Bond which the mortgage was given to secure.

The statute of limitations is not applicable as a bar to the recovery of the debt out of the mortgaged premises.. Metlar and his wife, the maker and owner respectively of the bond and mortgage, lived in matrimonial relation during her ownership and down to his death, and it has been repeatedly held, based upon the general policy of preventing litigation between husband and wife, that the statute does not run on the claim of one spouse against the other during the continuance of the marital state. Gray v. Gray, 39 N. J. Eq. 511; Yeomans v. Petty, 40 N. J. Eq. 495; Alpaugh v. Wilson, 52 N. J. Eq. 424; affirmed, 52 N. J. Eq. 589; Condit v. Bigalow, 64. N. J. Eq. 504; Collins v. Babbitt, 67 N. J. Eq. 165; Bennett v. Finnegan, 72 N. J. Eq. 155.

For, and because of the unity of husband and wife, can the statute be successfully interposed to defeat the outstanding mortgage estate of the wife on the ground of adverse possession of her husband. 1 Am. & Eng. Encycl. L. (2d ed.) 820. In Swinley v. Force, 78 N. J. Eq. 52, it was held, on authority, that possession in common by heirs of the mortgaged lands was not adverse to'the mortgage estate held by one of them, and not a baa’ to foreclosure.

As to the satisfaction of the mortgage, there was no attempt made to prove that payment had been actually made. The defence in this respect rests solely upon the presumption of payment from lapse of time of non-payment for upwards of twenty years. 'From what has been observed regarding the inadmissibility of the statute of limitations, in litigation concerning the rights of married couples against each other, it must be perfectly obvious that the presumption cannot arise as between them by efflux of time. It would be a most illogical course of judicial conduct to countenance the rule of presumption of payment a rule of evidence and-of public policy established by the courts for social repose, while the statutory restriction, founded upon and a legislative expression of the rule itself, is rejected as inapplicable to the situation. However, if the contrary view should be entertained, and the presumption of payment permitted, then the circumstances of the parties and the evidence in the case rebut the presumption. That the mortgage debt remains unpaid is hot controverted. That, standing alone, as I understand it, is not sufficient to overcome the presumption. Vice-Chancellor Emery, in Blue v. Everett, 55 N. J. Eq. 329, stated the rule to be “that unless the delay for twenty years is satisfactorily accounted for or explained, the presumption of payment of a bond and mortgage or other pecuniary debt is conclusive and cannot be rebutted simply by proof in fact of non-payment without accounting for tire delay. _ * * * The period of twenty years has been fixed as the sufficient limit of time to give rise to the presumption, and when this time has elapsed, unaccounted for or unexplained, the law, upon general principles and without reference to the circumstances of the particular case, raises the presumption of payment. If the delay is satisfactorily accounted for, then the presumption of payment from lapse of time does not apply as an absolute presumption of payment, but the delay' still remains as one of the facts in the case upon which the ultimate question of payment or non-payment is to be determined, in connection with the other evidence.” Fow, has the delay in this case been satisfactorily accounted for or explained? It seems to me that the intimate relation of trust and "confidence existing between husband and wife meets the demand of the rule precisely. If that relation is sufficient to exclude a positive legislative enactment, like the statute of limitations, it must be quite as potent in overcoming a mere presumption. The relation of parent and child and grandchildren, between the mortgagee and the owners of the land, and the likelihood of distress being brought upon the latter by foreclosure, was held to be sufficient to rebut the presumption of payment. Executors of Wanmaker v. Van Buskirk, 1 N. J. Eq. 685. See, also, Ayres v. Ayres, 69 N. J. Eq. 343; Ibid. 842; Chancellor v. Seiberlich, 75 N. J. Eq. 501.

But we need not stand on the relationship alone to, rebut the presumption, and for these established circumstances in the case. After the death of John Van Doren, the mortgagee, and in the settlement of his estate, his three children and only next of kin adjusted the amount due on the mortgage, and under date of Fovember 21st, 1892, endorsed on the bond as follows: "All interest on the above bond is acknowledged to have been satisfied and paid to John Van Doren in full to August 1st, 1892, and shall be so considered in the settlement of his estate.” And in 1909, the mortgage then being the property of his wife, Metlar endorsed on the bond, to which his wife’s signature is appended, as follows: “Received September 22d, 1909, five dollars on the within bond.” Furthermore, shortly before his death he acknowledged to one of his daughters that the mortgage debt was then in existence. Presumably, the adjustment, certified on the bond by the next of kin, was made with Mr. Metlar, the mortgagor. The mortgage shortly afterwards became his wife’s property, taken, as I understand, in part payment of her share of her father’s estate, and it is to be assumed that in the distribution of the estate Metlar took a care that his wife receive her just and full proportion. But, if perchance he was not aware of these transactions as they took place, his subsequent endorsement, aside from its more important significance, stands as a recognition and acknowledgment of the settlement made by the next of kin; for it can hardly be supposed that their endorsement on the bond escaped his attention.

In Swinley v. Force, Vice-Chancellor Stevenson declared that a partial payment made within the twenty-year period surely is a sufficient “explanation/5 within the rule enunciated in Blue v. Everett.

The payment of $5 on account of the mortgage debt by the mortgagor to the holder of the mortgage within six years of the filing of the bill, the evidence whereof is the undisputed record made b3r the mortgagor himself (Yeoman v. Petty, 40 N. J. Eq. 495) and the admission made by him within a less period, to the effect that the mortgage lien then survived, most cogently and convincingly prove its non-extinguishment, and absolutely neutralize and destroy the presumption of payment raised against it. Moore v. Clark, 40 N. J. Eq. 152; Miller v. Teeter, 53 N. J. Eq. 262. “The legal presumption of payment which the law allows at the expiration of twenty years after the debt becomes due is an act of tenderness toward the debtor, which is sustained by the absence of evidence, and, like other presumptions, must yield and give way before any circumstances and facts on which the mind can rest with satisfaction by which it is rebutted or repelled. It has not the power or effect of a positive statutory enactment of limitation or oblivion which extinguishes the original demand, and requires a new promise to pay, or its equivalent. The'mind must be free to admit the presumption, and if the exhibition of facts or circumstances interdict or forbid the conclusions, the prolection is removed. * * * There could be no doubt whatever that an acknowledgment of the debt before the efflux of twenty years excluded the legal presumption of payment. The question raised and argued was as to the competency of an acknowledgment after the expiration of twenty years from the time the bond became due. The court did not err in their instruction to the jury. The burden of proof lies on the plaintiff; and if he satisfies the jury by proper evidence that the defendant after the expiration of twenty years admitted the existence of the debt, it would be converting legal presumption into credulity to instruct a jury that they were authorized to presume payment against positive evidence. The legal presumption of payment would he changed into a legal and peremptory bar, contrary to all authority.” Eby v. Eby, 5 Pa. St. 435.

In Ayres v. Ayres, supra, a suit by a widow against her late husband’s administrators, on a note more than twenty years old, Vice-Chancellor Bergen held that repeated acknowledgments of the debt made by the husband to the wife, the last time being shortly before his death, were sufficient to repel the presumption of payment, and illustrate the function of such admissions in connection with the rule in this manner: “The admission of the husband would not be competent to remove the bar of the statute of limitations, but we are not now considering the effect of the statute, nor controlled by its limitations as to evidence, and the husband’s statements were not received for the purpose of creating a new debt by way of acknowledgment, nor to remove the bar of the statute, but simply to aid us in ascertaining whether the presumed payment arising from lapse of time did in fact exist.”

Counsel contesting the foreclosure urged' strenuously on the argument this proposition, as stated in his brief:

“As to George W. Metlar, the presumption of payment was complete February 1st, 1899. Then twenty years was up from the due date of the bond. That presumption having been once complete then was conclusive, and applj-ing by analogy the statute of limitations under the rule as laid down in Van Dike v. Van Dike, 15 N. J. Law 289, an acknowledgment thereafter did not operate to revive in the holder of the mortgage the right of re-entry.”

The difficulty with the proposition is that it is not pertinent to the inquiry. The statute of limitations, and the legal right of re-entry, are not involved. The investigation relates solely to the question whether the payment and acknowledgment repel the legal presumption. This is emphasized in Ayres v. Ayres, supra. A partial payment, like any other valid acknowledgment of the debt made after twenty years from the due date or last payment of interest, effectually dissipates the presumption. Blue v. Everett, supra.

The doctrine of laches is also invoked to resist the foreclosure. Ten Broeck v. Jackson, 71 N. J. Eq. 582, is cited and relied upon by counsel as sustaining Ms position. The circumstances to which the doctrine was there applied are so dissimilar to the facts here presented as to render the case inapposite as a precedent or authority. The same policy that places a ban upon the statute of limitations prevents the introduction of this equitable defence. Prima facie, and in the absence of special equitable circumstances, it is not evidence of laches that either the husband or wife fail to prosecute the other in a court of equity pending the continuance of marital relations. Bennett v. Finnegan, supra.

The executors of Mrs. Metlar, who died December 9th, 1913, acted with due diligence. Their delay in acting on the mortgage until the partition suit was brought, was both reasonable and commendable under the circumstances. It seems to have been mutually agreeable to the heirs-at-law to enjoy in common the lands now sought to be partitioned until the filing of the bill. Their waiting until that occurrence, which provoked them into enforcing their claim, cannot, in any view of the doctrine of laches, be regarded as within its application.

The executors may have a decree foreclosing the mortgage, with costs. Execution will be withheld until the coming in of the report of the commissioners now partitioning the land.' In all probability the heirs will be able to adjust their differences amicably.


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    James H. Kennerly v. George H. Aleck et al.
    [Submitted April 24th, 1916.
    Decided June 26th, 1916.]
    Specific performance will not be decreed of a contract which fails to express the true agreement of the parties, when such failure was brought about by the efforts of the complainant to overreach the defendant.

      Mr. Wilfred B. Wolcott, for the complainant.

      Mr. J. Charles Winters, Mr. Samuel K. Robbins and Mr. C. Oscar Beasley (of the Philadelphia bar), for the defendants.
   Backes, V. C.

This is a bill to compel the specific performance of a contract to convey a farm of one hundred and sixty acres, known as the “Cooper Homestead,” in Camden county.

The title to the farm is held by the defendant, Aleck, in trust for the defendant, Helen C. Douglas. They agreed to sell it to the complainant, and on November 7th, 1914, Aleck entered into a written contract with the complainant, which was witnessed by Mrs. Douglas, wherein he agreed to convey it upon the following terms:

“The said party of the second part [complainant] agrees to pay for the said property the sum of one dollar, as follows: One dollar on the execution of this agreement, and agrees to take the property subject to a mortgage of $3,800.00 now existing on the property, which mortgage draws six per cent, interest, and also subject to a mortgage of $36,200.00, ■which mortgage shall be created in the name of George H. Aleck, trustee for Mrs. Helen O. Douglas. This said second mortgage to draw an interest of $1,200.00 a year payable monthly in the amount of $100.00 per month, and subject to foreclosure in case of a default of six months on any one month’s installment. Said party of the second part agrees to pay off the mortgage of $3,800.00 within two years. * * *
“The said parties hereby bind themselves, their heirs, executors and administrators, for the faithful performance of the above agreement within thirty days from the date hereof,” said time to be the essence of this agreement, unless extended by mutual consent in writing endorsed thereon. * * *
“Party of the second part agrees to pay $1,000 per year on the second mortgage after five years from the date of the mortgage.”

It is a very unusual contract. The parties are all beyond middle life, and can hardly expect to live to see its fulfillment. Payment of the last installment of principal is forty:two years off, and the purchaser is required to pay interest at the rate of $1,200 a year down to that time, even though the last installment amounts to but $200, aggregating a sum slightly in excess of legal interest, if interest were calculated upon the consideration price of $36,200, allowing for deductions as payments are to be made. Peculiar as these features of the bargain are, they nevertheless were so understood and agreed to by the parties. It will be observed, however, that the contract makes no provision for a bond to be given for the purchase price, and does not disclose, except, perhaps, by implication, who was to make the mortgage. This is not according to the agreement. The defendants executed the writing, in the confidence that it correctly embodied and expressed their arrangement with the complainant, viz., that he was to pay $36,200 for the equity in the farm, upon the terms stated, and give his bond for the debt and a mortgage to secure it. They assumed, as they had a right to, inasmuch as the complainant agreed to pay for the farm in deferred payments, that the word “mortgage” in the contract spelled “bond and mortgage.” The omission of all reference to a bond, and the ambiguous language as to the mortgage, were by design of the complainant, and covertly, to evade personal liability. Mr. Ellis, com-, plainant’s counsel, who drew the contract, testified that he told the complainant

“that it would not be advisable, in taking a big mortgage of that kind, to take it in his name and give a bond, and suggested that he have a straw bond and mortgage made, and he [complainant] said that they had finally agreed, as I remember it, that he would give a mortgage and no bond in connection with this and that would obviate the difficulty or the possibility of his having trouble with the bond later on in case anything should happen to him or his estate.”

Mr. Ellis also proposed the straw bond and mortgage plan to Mr. Aleck. The complainant, who preceded his counsel on the witness-stand, asserted indignantly that he had never heard of such a thing as a straw bond, but the language of the agreement, “and also subject- to a mortgage of $36,200, which mortgage shall be created in the name of George H. Aleck, trustee for Mrs. Helen G. Douglas,” is so accommodating to the “straw-man’s” scheme, that I am compelled to reject his disclaimer. Moreover, the complainant’s statement to his counsel, as his counsel testified, that the defendants had agreed that he should give a mortgage and no bond, whereby he would escape ¡oersonal liability, was not true. The complainant did not deny his counsel, nor did he affirm the truth of the alleged statement to- him. The defendants say that there was no- such agreement, and I believe them. The fact that counsel prepared a deed and mortgage, but did not draft a bond, adds confirmation that the representation was made to him by his client.

Now, what position does the complainant occupy in asking a court of equity to enforce such a contract? The written contract itself may not be lacking in that mutuality which defeats specific performance, and the giving of a bond at this time (as the complainant proposed at the hearing) might fulfill its requirements, as counsel argued; but that is wholly aside from the question. Were the agreement unwittingly couched in the inartistic style of the present writing, and the appeal-for its enforcement made by a suitor otherwise candid, it is quite likely that a construction would be given to the contract which would carry into effect the intention of the parties. Here, however, the inherent vice in the transaction, which stays the arm of the court, is that the complainant attempted to overreach the defendants, and by subtle and cunning artifice endeavored to obtain an undue advantage. His studied efforts were to secure a contract binding' upon the defendants, without incurring a corresponding obligation. Specific performance rests in the sound discretion of the court, and to contracts procured by such sharp practices equity courts turn a deaf ear. In Rodman v. Zilley, 1 N. J. Eq. 320, Chancellor Vroom said: “Courts of equity seldom interfere to set aside sales and contracts, on the ground of inadequacy of price. They leave the parties to their legal remedies. But when they are called on for extraordinary aid to enforce a contract, they take the liberty to examine into the consideration to be given, its fairness and equality, and all the circumstances connected with it. And if anything manifestly inequitable appears in that part of the transaction, they will never lend their power to carry the contract into execution.” And in Crane v. DeCamp, 21 N. J. Eq. 414, Mr. Justice Scudder, speaking for the court of errors and appeals, said: “There is no rule in equity more clearly established than that upon an application for a specific performance of a contract the court must be satisfied that the claim is fair, reasonable and just, and the contract equal in all its parts. If these points are not established by the complainant, he will be left to his remedy at law (citing authorities). In judging of the-fairness of a contract, the court will look not merely at the terms of the agreement itself, but at the relations of the parties and all the surrounding circumstances.” This doctrine was reiterated by the court of errors and appeals in Worth v. Watts, 76 N. J. Eq. 299.

The defence set up by the answer is that the complainant abandoned the contract, in that he failed to perform it within the time expressly limited. The agreement binds the parties to a faithful performance within thirty days of its date, and time was, consequently, of the essence of the contract. Collins v. Delaney Co., 71 N. J. Eq. 320. On the day the contract was signed, Mr. Ellis, complainant’s counsel, was instructed to prepare the transfer papers. Three days thereafter, the complainant says, he requested Mr. .Aleck to sign the newly-drawn deed, and that he refused, saying that “he had read over the agreement; that it was the biggest fool agreement he had ever read; that Mr. Ellis was a fool, and that he would not sign it.” His brother corroborates him. He also testified to repeated demands and refusals thereafter. On the other hand, the defendants sáy that during the time specified they stood ready to perform — that is, upon the execution of a -bond and mortgage, according to the agreement as they understood it; that they heard nothing from the complainant until the following January, except a telephone message in November or December, saying that he had hot sold his Media farm, and took it for granted that he was unable to carry out his agreement. That in the month of January the complainant opened negotiations for a lease of the farm, and, after many meetings and much discussion, one was agreed upon and drawn in a Mr. Speiss’ office, a real estate operator in Philadelphia, on February 2d, for a term of five years. The complainant at this time wanted an option to purchase, offering to pay $45,000— an advance of $5,000 over his former bid — which the defendants say they declined to give him. The lease was not executed, because the complainant was not at the time prepared to pay the first installment of the rent, as the defendants demanded, although, according to the terms, it was not payable until the following April. He promised to make payment within a day or two, and failing in this, the defendants declined to further treat with him, whereupon he tendered the installment in cash, which was refused, and then for the first time he declared his intention of enforcing the sales agreement.

The decision on the phase of the case we are now considering hinges upon whether the complainant was ready and willing and offered to perform within the time stipulated; and while upon this point the testimony of the parties is in irreconcilable conflict, the attending facts and circumstances leave little doubt as to where the truth lies nearest, and they persuade me that it is not with the complainant. According to the complainant, the first demand he made for an execution of the deed was three days after the agreement was drawn. Now, at that time the title had not been searched, and the mortgage which was to be given was still in the course of preparation. The stage had not been reached for closing the deal, according to common experience in such matters, and there was no occasion for making a demand, and to my mind it is decidedly improbable that one was then made. If the complainant is not to be believed in this, no reliance can be placed in his assertions that repeatedly and constantly thereafter he made demand. This incident appears to have happened at or about the time of the supposed first demand and refusal. Mr. Aleck related to the complainant Mr. Ellis’ suggestion of a straw bond and mortgage, and characterized the lawyer as a fool, and it is quite possible that the complainant has since fancied that occurrence into a.repudiation of the agreement. Mr. Aleck’s attitude toward the proposal may also account, in a measure, for the complainant’s indifference thereafter to the contract, realizing, as he must have, that personal liability for a large amount would be at stake if he pressed for performance.

The controlling reason why the complainant allowed the contract to lapse was, it seems to me, that he did not want two farms on his hands at the same time. When he entered into the present arrangement, he owned and operated a farm at Media, Pennsylvania, for which he had prospective buyers, and from the sale of which he had planned to put up, on the Jersey farm, a necessary and costly bam or cattle-shed for his live stock. He was not able to sell for two months, and in the meantime he telephoned Mrs. Douglas, informing her of his predicament. In January, and doubtless after he had sold his farm, tire complainant called upon Mr. Ellis and told him that he thought Mr. Aleck would now sign, and had him erase from the deed prepared in November the month and year of November, 1914, and insert January, 1915. What made him think so ? Absolutely nothing happened at that time to warrant the statement. The complainant himself emphatically asserted that from the beginning Mr. Aleck denounced the contract as a fool agreement and was unalterably opposed to signing the deed, and the only inference to be drawn is that then, and not until then, was the complainant ready, and that he still hoped, after his long delay, to obtain a favorable consideration.

That the complainant purposely allowed the time for performance to expire, and that he fully realized that whatever rights he may have had in the contract were gone, is further borne out by his later conduct. Why should he, if he had, or thought he had, an enforceable agreement, negotiate for a lease of the farm with an option to buy, at an increase of $5,000, as he admits he did? I taire no stock in his explanation that he did it to avoid “a law suit and other troubles.” He evidently had little or no dread of litigation, as is manifested by the present controversy, and it is altogether unlikely that he was prompted by pacific motives to offer so large a bonus for peace.

Eaith in the complainant’s veracity is further shaken by his testimony concerning the negotiations for the lease. He says that the matter of the lease was suddenly sprung upon him by the defendants in Mr. Speiss’ office, where, he says, he went at the request of the defendants, not knowing what he was going there for.. This is disproved. The parties had been dickering quite some time, and by appointment went to the agent’s office to have the lease drawn; and it abundantly appears that there was much discussion of the subject on many occasions before that event.

The complainant also testified that it was agreed that he should have with the lease the privilege of buying at the price of $45,000. It is clear that in this he was not truthful. Mr. Speiss’ testimony is convincing that the complainant’s offer for an option was peremptorily rejected. He is corroborated by the defendants and supported by the draft of the lease which makes no mention of one. It seems hardly possible that the complainant was honestly mistaken, for When the lease was prepared it was read and explained to him and he was ready to sign it as drawn, knowing that it contained no option clause. His eleventh-hour shift, that the option was to be embodied in a separate paper, is too weak to be credited. On direct examination he testified, and was positive, that the option which he said had been agreed upon was incorporated in the lease. Hpon a demonstration that this was not so, he was recalled in rebuttal and was reminded, spontaneously, as he pretended, by suggestion in counsels question, that when he insisted upon the option being in the lease, Mr. Speiss replied that he would not embody it in the lease, but would draw a separate option and would have it ready when he came to sign the lease. The proper and ordinary place for such an option is in the lease itself, and no plausible reason appears why it should not have been thus incorporated if one had been agreed upon.

The bill will be dismissed, with costs.


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    Vineland Trust Company v. Katharine Westendorf and Helen Campbell et al.
    [Submitted May 16th, 1916.
    Decided June 30th, 1916.]
    A bequest in trust for “the furtherance of 'the broadest interpretation of metaphysical thought” is for a charitable use and not invalid for indefiniteness.

      Mr. Leverett Newcomb, for the complainant.

      Mr. Robert E. Southard and Mr. George E. Gilman (of the New York bar), for the defendant legatees.

      Mr. Eenry S. Alvord, for the defendant next of lrin.
   Backes, V. C.

This bill involves a construction of the last will and testament of Ellen M. Dyer, deceased. By the will she gave her residuary estate to Eliza Freeman Spencer for life, and disposed'of the remainder in this language:

“On the decease of the said Eliza Freeman Spencer, I further give, devise and bequeath, all my estate, as it shall then stand, to Mrs. Katharine Westendorf, of Denver, Arapahoe County, State of Colorado, teacher .of vocal expression and oratory, and to her friend, Mrs. Helen Campbell, author, to he used jointly by them in the furtherance of the broadest interpretation of metaphysical thought, in whatsoever manner and by whatsoever means they may jointly consider proper and best, authorizing them to sell and convey any and all real estate and use the proceeds thereof for the above purposes.”

Eliza Freeman Spencer is deceased. The next of kin of the testatrix, having questioned the legality of the bequest and protested against its payment, the complainant, administrator with the will annexed, seeks the advice of the court and its protective decree. .

The attack made upon the legacy is that the trust created thereby is not for a charitable use, and that it is vague and indefinite and incapable of being executed or supervised by the court. The grounds are untenable. The fund is to be used for the teaching of metaphysics — the science of being — the science which deals with ultimate reality; the philosophy of mind; the science beyond experience; the realm of transcendental' rumination and of speculation of the philosophers. The subject is purely and essentially educational. It is a course of study in our colleges and universities, and the trust is, in every sense, a legal charity. The infinitude of the subject, and, consequently, the great latitude given to the trustees in executing the trust, creates no legal infirmity. The field of contemplative research is well defined, and whether the investigation is to he pursued on the lines of materialism, idealism or realism, and whether according to the conception of the ancient philosophers, or of the more recent Kant, "Wolf, or of Herbert Spencer, or within the narrower sphere of spiritualism or of Christian Science, was left to the judgment of the trastees. There is no uncertainty as to the objects of the bounty. All mankind may share in its benefits. The charity is general, with power in the trustees to make it definite. Such charities have been uniformly upheld, as for instance, for the tuition of poor children in the elements of English literature (McBride v. Elmer, 6 N. J. Eq. 107); to promote the religious interests and to aid missionary, educational and benevolent enterprises of a church (DeCamp v. Dobbins, 29 N. J. Eq. 36; affirmed, 31 N. J. Eq. 671); for the most deserving poor of the city of Paterson (Hesketh v. Murphy, 35 N. J. Eq. 23; affirmed, 36 N. J. Eq. 304); for the purpose of spreading the light on social and political liberty and justice in these United States of America (George v. Braddock, 45 N. J. Eq. 757); for the purchase of books upon the philosophy of spiritualism (Jones v. Watford, 62 N. J. Eq. 339; affirmed, on this phase, 64 N. J. Eq. 785).

In Glover v. Baker, 76 N. H. 393, and in Chase v. Dickey, 212 Mass. 555; 99 N. E. Rep. 410, the courts held that the will of Mary Baker Eddy, which gave the residue of her estate, in trust, to be in part devoted and used for the purpose of more effectually promoting and extending the religion of Christian Science as taught by her, created a charitable trust and was not invalid for indefiniteness or ambiguity.

The complainant will be decreed to pay the estate to the legatees-trastees.