author: Garrison, Y. C.

text:
    Augustus J. Nicklas, administrator of Ellen Cunningham, deceased, v. Bridget Parker et al.
    [Decided July 10th, 1905.]
    1. Where intestate.deposited money in a savings bank in her. own name as trustee for certain persons- who were dead at the time the accounts' were opened, the. deposits were held not to be trusts.
    2. A mere savings bank deposit made by intestate in her own name as trustee for another, over which deposit intestate exercised complete control during her life, was insufficient to establish a gift of the deposit inter vivos, or to create a trust entitling the alleged beneficiary to the deposit as against intestate’s administrator.
    Heard on bill, answers, cross-bill, replications and proofs in open court.

      Messrs. Collins & Corbin, for the complainant.

      Mr. Elmer II. Goran ‘(with whom wa§ Mr. Henry M. Stevenson, of the New York bar), for Bridget Parker et al.

      Messrs. Garrick <& Wortenclyke, for Honora.Einerty.

      Messrs. Hartshorne, Insley & Leake, for the Provident Institution for Savings in Jersey City.
   Garrison, Y. C.

Ellen Cunningham, who married a man named Kelly, and thereafter seems to have used indifferently’ either her maiden or her married name, died on the 13th of January, 1904. '

Her administrator, the complainant in this suit, found among her effects three pass-books evidencing deposits in the Provident Institution for Savings in Jersey City. One of these pass-books was numbered 115348, and was in the name of “Ellen Kelly, trustee for Eliza Clark.” Another pass-book was numbered 116443, in the name of “Ellen Cunningham, trustee for Mary Clark.” The third pass-book was numbered 93249, in the name of “Ellen Cunningham, trustee for Honora Einerty.”

The administrator filed this bill for the purpose of having the controversy over the ownership of the dioses in action evidenced by the books determined.

The Provident Institution for Savings filed an answer and cross-bill, and in the latter tendered the money into court for distribution under the order of the court.

Issue was joined thereon, and the case is now before the court practically as one of interpleader between the various claimants.

The next of kin of Ellen Cunningham, or Kelly, are Bridget Parker, her sister; John Edward Clark, her nephew; Michael, William, Margaret and Mary Ann Keough, claiming to be her nephews and nieces, and Mrs. Catharine Donnelly, James, Isabella, John, Thomas and Vincent Donnelly, and Mary Donnelly Ritgert, claiming to be her grandnieces and grandnephews.

Since it appeared at the trial that Eliza Clark, who was named as cestui que trust of the account No. 115348, was a relative of Ellen Kelly, and had died some six and a half years prior to the opening of the account, no contest was made with respect to her rights therein, and a decree will therefore be made that this account is collectible by the administrator of Ellen Kelly, otherwise Cunningham.

A similar finding, for similar reasons, is made with respect to the account No. 116443. The Mary Clark named as cestui que trust in this account was also a relative of Ellen Cunningham, and had died many years prior to the opening of this account.

This leaves as the sole chose in action in controversy in this suit that evidenced by pass-book No. 93249, in the name of “Ellen Cunningham, trustee for Honora Einerty.”

This account was opened on the 29th of June, 1898, by the deposit of $292. Small deposits were thereafter made, and semi-annual calculations of interest were added, so that on the 8th of January, 1903, the deposits and interest amounted to $1,638.98. Ellen Cunningham, upon that date, withdrew $200, leaving a balance of $1,438.98, to which semi-annual additions of interest were added, so that at the date of the filing of the bill there was in this account a balance of $1,492.52.

Ellen Cunningham and Honora Einerty were Irish women, and were each domestic servants. They were friends and intimately acquainted with each other. In 1869 Honora Einerty, through the procurement of Ellen Cunningham, started a bank account with the Provident Institution for Savings and deposited money in it until she went back to Ireland in 1876. This account stood in her own name, and after her return to Ireland in 1876 she made no further deposits, nor were any other deposits made in this account. At that time there were some $1,200 to her credit, and she empowered' Ellen Cunningham to draw from this account. At her request Ellen Cunningham drew the semi-annual interest paid by the bank on this account and forwarded the same to her in Ireland.

Subsequently Ellen Cunningham, at the request of Honora Einerty, or with her consent, withdrew the entire balance remaining due Honora Einerty in this account and transmitted the same to her in Ireland.

The account in controversy is not shown to have any connection. whatever with the account of Honora Einerty just mentioned. Honora Einerty had no knowledge whatever of the account in controversy until after the death of Ellen Cunningham, and the latter never made any declaration to anyone concerning the same, and the case is bare of any testimony or evidence respecting it, save that evidenced by the pass-book itself. Ellen Cunningham kept this pass-book in her own possession, and it was found among her effects at her death, and upon one occasion she made a draft upon this account for her own purposes.

Since there was no contractual relation between these women, the account in controversy has no consideration to support it, and must be viewed as a pure gratuity.

The allegations in the answer of Honora Einerty, which would lead to a conclusion that there was consideration to support this account, are not supported by, any' evidence whatever, and must have been made by counsel under a misapprehension of fact.

This case presents the bald, bare question of the right to a chose in action arising from a. deposit of the money of a depositor in a savings bank in the depositor’s own name in trust for another.

So far as my own research has resulted, and so far as that of counsel has furnished me with data, this is the first case presenting this unqualified question in this state.

The right of the person named as cestui que trust to have the fund on deposit must rest upon one of two theories, i. e., that it was-a gift inter vivos by the depositor to her, or that it was a valid trust now enforceable by her. In either event, the intention must be cleárly proven, and such intention must be shown 'to have been carried into effect by the donor or settlor.

The nature and amoiint of proof required, and the essentials to be proven, are similar with, respect to each of the two necessary contentions. The form of the transfer and the time of enjoyment by the beneficiary may be different with respect to a trust, but there must be the same definiteness and clearness of proof of the completed execution of intention in the one case as in the other.

It is clear that the depositor in this case did not intend to make a gift inter vivos to Honora Finerty of the money deposited. If she had intended to do this, she would either have deposited the money in the name of Honora Finerty, so that the latter could have drawn.it at will, or if she preferred to put it in the form of a trust, she would have vested Honora Finerty with power to draw immediately, or under conditions which she might specify, from the trust funds.

Since, by the retention of the pass-book, and the failure to disclose to Honora Finerty the existence of this account, and the failure to vest Honora Finerty with the power to draw upon it, the depositor retained in her own power complete dominion over the chose in action, it must be held that there is not sufficient evidence of a gift inter vivos.

“In order to legalize such a gift, there must be not only a donative intention, but also in conjunction with it a complete stripping of the donor of all dominion or control over the thing given.” Stevenson v. Earl, 65 N. J. Eq. (20 Dick.) 721 (at p. 725) (Court of Errors and Appeals, 1903).

The depositor, therefore, must be held to have intended some other thing than a gift inter vivos.

It is, in my judgment, equally clear that she did not intend to create a trust operative inter vivos.

The court of errors and appeals, in the case last cited, quotes the following language with approval:

“The one thing necessary to give validity to a declaration of trust—the indispensable thing—I take to be that the donor or grantor, or whatever he may be called, should have absolutely parted with that interest which'had been his up to the time of the declaration; should have effectually changed his right in that respect and put the property out of his power, at least in the way of interest.”

The depositor in the case in hand did not so circumstance herself. By retaining the pass-book, and refraining from disclosing to anyone her intention with respect to the money deposited, she retained complete dominion and complete interest.

While the courts, in the many cases which have dealt with the intention with respect to gifts and trusts, have refused to lay down any arbitrary, inflexible rule, they substantially agree that something more is necessary with respect to deposits in banks than the mere opening of the account in the name of the depositor in trust for another. This may have been done for any one of a number of reasons, each without donative purpose There must be some unequivocal act or declaration clearly showing that an absolute gift or trust was intended.

I do not enter upon an extended review of the cases in other jurisdictions, because I think the principles to be applied have been settled in this jurisdiction, and if there is conflict elsewhere, no benefit results from citing the conflicting decisions. The cases will be found in those cited and in the notes referred to.

It may be, in this case, that the depositor merely used Iionora Einerty's name as she did the names of certain of her dead relatives, because it was a convenient designation of an account. Eor all that appears, she may, for any one of numerous reasons, have desired to have separate accounts, and knew of no other way to designate them, or preferred this way of designating them. Unless she made some unequivocal expression of intention she failed to effectually declare the trust, and hence failed, to show that a trust was intended. By retaining complete dominion over the chose herself and drawing from the account, by refraining from making any declaration respecting it or giving any notice concerning it, she certainly showed that she did not intend that the trust (if she intended a trust at all) should- be operative during her lifetime.

The case is almost if not quite indistinguishable from the familiar one of a person making a written statement of trust with respect to personal property which he retains in his own possession. In every such case the written statement is held ineffectual to establish an enforceable trust, and some other and further act or declaration is required.

The most rational inference to be drawn from the- circumstances, and that which I conclude to have been the fact, is that Ellen Cunningham desired to deposit her own moneys in this account in such a way that she would always be able to use them at her will during her life, but that at her death, if anything remained in the account, it should go to her friend, Honora Einerty.

The court of appeals of New York reached the conclusion that this was the proper inference to be drawn under similar circumstances.

“When a deposit is made in trust and the depositor dies intestate, leaving it undisturbed, in the absence of other evidence, the presumption seems to arise that a trust was intended in order to avoid the trouble of making a will.” Matter of Totten, 179 N. Y. 112 (at p. 124).

In this case the court of appeals of New York reached the conclusion that the trust which it found to exist was valid, and that the beneficiary thereof could recover the balance of the money on deposit at the death of the depositor. Onr court of errors and appeals, however, has reached an opposite conclusion upon this subject, and has held that a disposition of property not to take effect until the death of the owner is testamentary in character, and that the statute of wills requires it to-be made in a particular way, and that it will not be effectual if not made in that way. Stevenson v. Earl, supra.

The New York court of appeals, in the Totten Case, formulated its doctrine in the following language (at p. 125):

“A deposit by one person of his own money, in his own name as trustee for another, standing alone, does not establish an irrevocable trust during the lifetime of the depositor. It is a tentative trust merely, revocable at will, until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration, such as delivery of the pass-book or notice to the beneficiary. In case the depositor dies before the beneficiary without revocation, or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor.”

This decision has been much commented upon by legal writers and is well described by Wilbur Larremore in an article on “Judicial Legislation in New York,” in the Yale Law Journal, Vol. 14, No. 6 (at p. 315). He there says, speaking with respect to this case, as follows:

“This decision has been widely commented upon by legal journals, and, so far as the writer is aware, has been unanimously disapproved. It is inconsistent with earlier authorities in the State of New York. It introduces a serious anomaly into the law of trusts; indeed a trust that is revocable at the will of the creator can hardly be said to be a trust at all. It impugns the policy of the statute of wills by permitting a disposition of property to take effect only after death, without following the testamentary requirements. On the other hand, as a piece of constructive legislation the decision could hardly be too highly praised. It effectuates a custom which has grown up among the humbler classes of people who, in placing their money on deposit in trust for other persons, often intend to retain the right to use it, principal as well as interest, during life, but that whatever remains at the time of death shall go to the oestuis que trust. Under the law as it stood the estates of depositors, who as trustees had drawn money from accounts, would be liable to •refund the same to the oestuis quo trust. The validation of the business •custom in question seems so unobjectionable, indeed so desirable,-that the writer lias on various occasions advocated the enactment of a statute on just the lines laid down in the Matter of Totten. He did not believe that a court would venture upon such a radical innovation, and it is difficult to justify it as an exercise of judicial power.”

Iii our own state there is no direct authority with respect to savings bank deposits of the nature of the one dealt with in the case in hand, but the general principles to be applied are, I think, clear, and will be found stated in Cook v. Lum, 55 N. J. Law (26 Vr.) 375, 376 (Supreme Court, 1893), and in Stevenson v. Earl, supra.

In Dunn v. Houghton, 51 Atl. Rep. 71 (Vice-Chancellor Stevenson, 1902), the previous cases are cited and commented upon. While that part of the decision in Dunn v. Houghton which holds that the statute of wills does not prevent a trust operative only at the death of the settlor may be in conflict with the principle subsequently laid down in the case of Stevenson v. Earl (and I do not stop to consider or determine this), much that is said and the review of the New Jersey cases therein contained sustains the principles which I deem applicable in the case in hand.

Counsel for Honora Finerty placed great, if not entire, reliance upon the cases of Janes v. Falk, 50 N. J. Eq. (5 Dick.) 468 (Court of Errors and Appeals, 1892), and Collins v. Steuarl, 58 N. J. Eq. (13 Dick.) 392 (Court of Chancery, 1899); affirmed on the opinion below, sub nom. Collins v. Lewis, 60 N. J. Eq. (15 Dick.) 488. From these cases counsel deduced the principle that a declaration of trust such as that evidenced by this bank-book was all-sufficient. I do not think that this is a warrantable deduction from the reasoning of the learned judges writing the opinions in those two cases. In each of them the court found, as a matter of fact, that there were unequivocal declarations of intention by the grantor, or settlor, or assignor, sufficient to show a purpose to transfer his interest in the subject-matter.

In the Collins Case the oral testimony is cited (at p. 395) which led the court to find that it was intended that the declaration of trust was to become operative from the time of its execution; and in the Janes Case, in addition to the letter stating his purpose, there was positive evidence that the trustee had informed the beneficiaries of what he had done, and the court held “'these purposes, acts and declarations are not equivocal.”

I therefore conclude, in the case in hand, that there is no sufficient evidence of the intention of Ellen Cunningham that the money which she deposited in the bank in her own name, in trust for Honora Einerty, should be operative as an immediate gift -inter vivos, or as a trust inter vivos; and I further hold that if her intention was to retain complete dominion and control over the chose during her lifetime, and that it should pass to Iionora Einerty at her death, such purpose was not effectuated in the only way in which it can be done under the laws of this state, because it was not done in accordance with the provisions of the statute of wills.

I will advise a decree that the sum of money in controversy belongs to the administrator of Ellen Cunningham, deceased.


source: Caselaw Access Project

author: Magie, Ordinary.

license: Public Domain

text:
    Thomas Wright, appellant, v. Mary Flynn, respondent.
    [Submitted June 20th, 1905.
    Decided August 10th, 1905.]
    1. The appellate court, reviewing a decree admitting a will to probate •on evidence appearing in the transcript, should not set aside the findings-of the trial court as erroneous, unless clearly convinced of error.
    2. On an application for probate of a will, evidence held insufficient to require a finding that the will was a fabrication and a forgery.

      On appeal from a decree of the Passaic county orphans court.

      Mr. William B. Gourlcy, for the appellant.

      Mr. Jacob Willard De Yoe, for the respondent.
   Magie, Ordinary.

This appeal brings in review a decree of the orphans court .admitting to probate a paper-writing as the last will of Catharine Wright, deceased. The paper-writing in question purports to be dated July 14-th, 1903, and to-be signed by Catharine Wright and witnessed by Katie Elynn, a niece of Catharine Wright, and by Max Herrman, who was living in the same house in which Catharine Wright lived, although in a different apartment.

Katie Elynn and Max Herrman were both produced as witnesses and testiñed in the orphans court. There was no attestation clause attached to the paper-writing, but I deem it clear that if credence is given to their testimony it was, on the day ■of its date, declared by Catharine Wright to be her last will, and it was executed by her with all the formalities required by ■our statute to constitute a valid testamentary disposition.

The contention on the part of appellant is that the testimony of these witnesses is wholly unworthy of credit, and that the case shows that they, or one of them, fabricated the paper-writing in question, including the signature of Catharine Wright thereto, and that they have conspired together to foist the same •upon the court as a genuine will.

The learned judge of the orphans court, before whom these witnesses testiñed, reached the conclusion that their evidence was worthy of credence. An appellate court, reviewing the ease upon the evidence appearing in a transcript; ought not to pronounce the conclusions reached under such circumstances to be erroneous unless clearly convinced of the error. As I do not find in the case sufficient proof of error to convince my judgment, the decree must be affirmed. Eor the benefit of counsel, I will briefly state my views on the points argued.

It is abundantly proved that on the day of the date of the paper Catharine Wright was a resident of Paterson, and that her niece, Katie Elynn, was living with her, being upon a visit to her, and that Max Herrman was resident in the same house. There was therefore an opportunity for the three persons to have met together, as sworn to by these witnesses.

The attack upon the instrument, and upon the credibility of the witnesses, is grounded upon indications upon the face of the writing, alleged to be observable upon inspection of it by common observation, or by observation directed by and disclosed upon the evidence of expert witnesses.

The mere opinions of expert witnesses on handwriting, while admissible in evidence, and to be considered by the court, ought not to be permitted to overcome the positive testimony of unimpeached witnesses. But the argument on the part of appellant in respect to expert evidence is properly presented. The claim is that such evidence opens to our observation what would not have been observed without the aid of examinations made by those who, by practice and experience, have acquired facility in such observations. I apprehend that this is the most important function of expert testimony, and the weight and force of such evidence is dependable upon its exhibiting to our senses that which our unaided observation would not discover.

To the arguments upon this line the counsel for appellant added arguments based upon the alleged improbability of the story of the attesting witnesses.

To make clear my conclusions, it is proper to state that the paper in question discloses to my observation the fact that the words “Paterson H Jersey July 14, 1903 I Catharne Wright,” at its top, and the words “Catharine Wright 93 Ernt St. Paterson H Jersey,” at the bottom, are in a handwriting different from that which has been used in the body of the instrument. Katie Elynn testifies that the words at the top and bottom’ above quoted were written by, Catharine Wright herself, and the remainder of the writing, except the signature, “Max Herr-man witness,” was written by her, at her aunt’s dictation.

Upon the evidence of the experts, I am able to observe that the signature of “Catharine Wright,” at the bottom, and “Paterson H. Jersey,” thereunder, have been originally written with a somewhat pale ink, and then the lines overwritten with a somewhat darker ink. I am also able to observe what would have probably escaped my observation unless I had been directed to it by their evidence, that in the parts of the paper which Ivatie Elynn claims to have written many', and perhaps all, of the letters whose form requires them to extend below the line were not written at one stroke. These letters show that the parts below the line are not continuous with the upper parts, but have been added afterward, and Katie Elynn admits that this was so done by her.

The further claim is made, upon the evidence of the experts, that’ the “Catharine Wright” at the top and the “Catharine Wrighj;” at the bottom of the paper are identical in form, spacing and length, and that the “Paterson K Jersey,” at the top, and the same words at the bottom, are not only identical in form, spacing and length, but also are in exactly the same distance from the right-hand edge of the sheet. This is claimed to be observable upon what is pointed' out by the experts, and it is argued that this identity leads to the necessary inference that they were not written by Catharine Wright, as claimed, but have been traced from some other single paper on which those words appeared. Two intelligent experts express their opinion that they were so traced, and base their opinions on the extreme improbability of such identical writing.

The complete identity of the “Catharine Wright” at the top with the “Catharine Wright” at the bottom, is not apparent to me. The former omits the “i” in “Catharine;” the latter has the name in full. Kor does my comparison of them disclose them to be absolutely identical in length or spacing. They present close resemblances, but I am not prepared to say that the resemblances are closer than signatures by the same person sometimes present.

The identity of the “Paterson K Jersey” at the top with the same words at the bottom is much clearer, and yet not entirely perfect. Letters with open loops in one are closed in the other. The length and spacing seem to nearly agree, and the distance from the right-hand edge of the sheet is nearly the same in “ach. But the agreement is not so perfect as to convince my judgment that they must have been traced from another paper, and not "written by Catharine Wright herself, where the claim is in opposition to the testimony of both the attesting witnesses that the words at the bottom were written by Catharine Wright herself.

Tor am I able to give much weight to the criticism directed to the testimony of Katie Flynn, and based upon its improbability. She declares that her aunt dictated to her the body of the will, which is expressed in correct legal phraseology, and that such dictation was made without any paper to guide her aunt. It is urged, that Catharine Wright was incapable of such a feat. Letters written by Catharine Wright are in evidence, and they indicate that she was a woman of little education, but yet that she was not incapable of expressing her ideas on paper. But they do tend to render it doubtful whether she had the capacity to dictate oif-hand this testamentary disposition. It is in evidence, however, that Catharine Wright had in her possession the will of her first husband, and its provisions are almost identical with those used in this paper. It is argued that Catharine Wright would not be likely to have impressed the words of that will upon her memory so as to dictate them without having the will in her hand, and that it tends to show that Katie Flynn used that will in the fabrication of this paper. But this theory meets with two serious difficulties. In the first place, the will from which it is suggested that Katie Flynn copied the provisions of this paper contained a complete attestation clause. It seems to me well nigh inconceivable that a person using it in preparing a fabrication to be presented as a will would have omitted to append to it a similar clause. In the next place, it seems almost equally inconceivable that a fabricator, having wit enough to. use this will as a model, would have failed to testify that her aunt dictated from it, and not from memory. At all events, I am. not prepared to say that the improbability of Catharine Wright being able to dictate -a will without aid is greater than the improbabilities that confront us on the theory of fabrication from the provisions of that will. , So, the curious and suspicious circumstance in the condition of the parts of the letters below the line in the body of _ the paper is urged as highly improbable. The explanation of Katie Elynn, as I understand her evidence, is that, by her aunt’s, direction, and because the writing was upon paper which was. unruled, she (Katie) placed under the paper a ruled sheet, and aligned the lines showing through from the under sheet by another sheet. This obviously prevented her from making the letters perfect when first written, and she declares that she-perfected tliem afterwards. This has given me some trouble as to her credibility'-, but I cannot deem it forcible enough to-reject her evidence, for the theory of forgery encounters another improbability, viz., that a forger would not be likely to prepare-a fabricated paper in a condition which would require any explanation, or such an explanation as Katie Elynn has made.

The remaining peculiarity, consisting of the evident retouching or overwriting of the words at the bottom of the paper, remains to be considered. It is claimed by the proponent to-be explained by proof that Catharine Wright had been observed to do such overwriting upon words previously written on more-than one occasion. This is a possible explanation, and I am not able to say that it does not explain the peculiarity. At least the improbability that the maker-of a fabricated will, which she must have anticipated would be presented in court, with the-plain prospect of a contest, would have thus retouched or overwritten the forged signature, presents to my mind as much doubt, for both the attesting witnesses say that Catharine Wright did not retouch the words in their presence. The inference must be, if credit is given to them, that the words were retouched afterwards.

If Katie Elynn is believed, the will remained for some time-in the possession of the deceased. There was therefore opportunity for her to. retouch the letters/ If she did do so, I deem it would not invalidate the will if, at the time of execution,, there was a genuine signature at the bottom of the paper. Such overwriting, if done by her, would not indicate an intention to-revoke the instrument.

Keithcr of the witnesses thus attacked has been impeached. I do not perceive that their testimony was shaken by the acute and careful cross-examination before the orphans court, neither of them has any direct interest in the provisions of this will. The sole beneficiary is Mary Elynn, the respondent,' who was a sister of the deceased. She is 'the mother of Katie Elynn, but she is the wife of a living .husband and the mother of twelve living children, so that Katie’s interest is remote and small. There seems to be no interest of Max Herrman in the event of this contest.

The judge of the orphans court, who saw and heard the witnesses, declared himself unable to disregard the direct testimony of the attesting witnesses, notwithstanding the expert testimony, and the observations made from the face of the paper, which I have before discussed. I am not convinced that his decision was erroneous.

The decree must therefore be affirmed.


author: Magj:e, Ohdinaky.

text:
    William W. Vernon, appellant, v. William Vernon, respondent.
    [Decided July 11th, 1905.]
    1. A writing admitted to probate was in the form of a letter, and expressed a disposition of property after death, and was called therein a last will and testament.—Held, that if the paper was executed in the manner required by our statute it may be probated as a valid will and testament.
    2. When there is no attestation clause the proponent of a writing, claimed to be a will, must affirmatively prove all the statutory requisites, including that of publication, which is the declaration by the testator that the writing is his last will.
    3. Publication may be made by words, or acts or signs, which clearly make known to the witnesses that what they are requested to attest is the testator’s will.
    4. The evidence before the orphans court justified the inference that the publication was made.

      On appeal from a decree of the Morris county orphans court.

      Mr. King Biiclde Oram> for the appellant.

      Mr. Philander B. Pierson, for the respondent.
   Magj:e, Ohdinaky.

The paper-writing admitted to probate by the decree appealed from is in the form of a letter addressed by Sarah B. Vernon to her brother, William Vernon, the respondent. It plainly expresses an intended disposition of property after death, and is stated therein to be her “last will and testament.” It does not admit of doubt that if this paper was executed as required by our statute of wills, it may be probated as a valid testament. On this point no contest is raised by the appellant.

The writing in question has appended to it the signature “Sarah B. Vernon.” Below that signature, on the left, are the words “Signed by Florence K. Howland, Elizabeth Dunn.” The usual attestation clause is absent.

The proofs taken before the orphans court show that Sarah B. Vernon and Elizabeth Dunn are both dead. The evidence of Florence K. Howland, the only survivor of the three, was taken in a foreign state, under a commission and interrogatories. From' her evidence it is established that the signature of Sarah B. Vernon was made by her in the presence of both Florence K. Howland and Elizabeth Dunn, and that they immediately thereafter signed their names thereto in the presence of Sarah B. Vernon and of each other, and at the request of Sarah B. Vernon. There is no room for contest or doubt that the writing .in question was executed and witnessed with the formalities requisite to constitute it a valid will under our statute'if there is proof that the intending testatrix “declared” it to be her “last will” in the presence of the two persons who signed after her as witnesses.

The sole contention of appellant is that the evidence fails to establish that essential fact.

When there is no attestation clause, the proponent of the writing claimed to be a will must affirmatively prove all the statutory requisites, including that of publication, which is the declaration by the testator that the writing is his last will. Mundy v. Mundy, 15 N. J. Eq. (2 McCart.) 290; Swain v. Edmunds, 53 N. J. Eq. (8 Dick.) 142; S. C., 54 N. J. Eq. (9 Dick.) 438.

Publication may be made by words,, or acts or signs, which clearly and distinctly make known to the witnesses that what they are requested to subscribe to is the testator’s will. Robbins v. Robbins, 50 N. J. Eq. (5 Dick.) 742; Swain v. Edmunds, ubi supra.

The insistment of appellant is that the evidence of Florence K. Howland does not establish a declaration by the testatrix that the paper-writing was her will. The pertinent evidence is the following: ■ .

“Interrogatory the 9th.—At the time Sarah B. Vernon asked you to witness this paper-writing, did she tell you that the paper was her last will and testament?
“A. I think she did; I shouldn’t have signed it unless she had done so.
“Gross Interrogatory 15th.—•
“(a) Did Miss Vernon say it was her will?
“(b) To whom, if to anyone, did Sarah B. Vernon say it was her last will?
“A. (a) I cannot be certain, but I think she did.
“A. (b) To my best recollection, to Miss Dunn and myself.
“Gross Interrogatory 16th.—At the time you signed this paper, did you know it was the will of the said Sarah B. Vernon?
“A. I supposed it to be so; didn’t read the paper, of course.
“17th.—How did you know.it was her will?
“A. Only from what she, Miss Vernon, said.
“18th.—At the time of the signing of this paper, did Elizabeth Dunn know it was the will of the said Sarah B. Vernon?
“A. No doubt she did.
“19th.—How did she know it was her will?
“A. In the same way that I did.
• “22d.—Did Sarah B. Vernon tell Elizabeth Dunn that this paper was the- last will and testament of the said Sarah B. Vernon?
“A. I feel very sure that she told her.
“23d.—Did you hear the said Sarah B. Vernon tell Elizabeth Dunn that this paper was her last will and testament?
“A. I do not recollect the words, but I feel sure she was so informed.”

The criticism of counsel is that the witness fails to inform the court what language Sarah B. Yernon used to convey to the witnesses’ mind the idea that the paper they were requested to» sign was a will, but the witness declares that to her best recollection testatrix said it was her last will to Miss Dunn and herself, and that she supposed it to be testatrix’s will from what testatrix said. This is sufficient proof of some words used by testatrix from which this witness knew that it was testatrix’s, will, although the witness had not read the paper.

The information thus transmitted was a sufficient indication, of the publication of the paper as a will. The best recollection of a witness is sufficient to establish a fact coming within the-witness’ observation and hearing, and when that fact was the-use of words by a teátatrix from which the witness knew that, the- paper which she and Miss Dunn were requested to sign was. a will, it is sufficient to establish it as a will.

The decree appealed from must therefore be affirmed.


text:
    In the matter of the estate of Louisa Ferdon, deceased.
    [Submitted August 3d, 1905.
    Decided October 13th, 1905.]
    A note payable to an intestate had been inventoried as an asset of her estate. A person, not a party to the note, by petition to the orphans court, asked an order directing the administrator to deliver the note to him. On an order to show cause, petitioner’s proofs tended to show that the note took the place of a previous note made by the same maker to a person previously deceased, which petitioner claimed had been given by her to the intestate for life and on her death to petitioner.—Held, that the orphans court properly refused the order sought, (1) because there was no sufficient proof of the gift which petitioner claimed, and (2) because if sufficient proof had been made the court had no jurisdiction to determine the equitable ownership in the absence of parties who might contest that claim.

      Mr. Charles B. Dunn and Mr. Michael Dunn, for the appellant.

      Mr. Cornelius Doremus, for the respondent.
   Magie, Ordinary.

This appeal challenges the correctness of a decree of the orphans court of Bergen county, made upon the petition of Stephen B. Eerdon, the appellant.

The petition represented that Louisa Eerdon, the mother of appellant, had died intestate, and that letters of administration had been granted upon her estate to Clarence Maybie, who had' included in the inventory of the assets of the estate a note made by L. L. Conklin, to the order of the intestate, for $500. The petition avers that the note was not the property of Louisa Eerdon, but of appellant. Thereupon the petitioner asked an order requiring the administrator to show cause why the note should not be delivered to appellant.

Upon the petition and affidavits annexed a rule to show cause why the note in question should not be delivered to Stephen B. Eerdon, the petitioner, was allowed and brought to hearing. Thereupon the order appealed from was made, decreeing that the note in question was an asset of the estate of Louisa Eerdon, deceased, for which her administrator should account.

Appellant’s evidence presents the following case: One Jane Berdan, who died at a time not specified, but long before the date of the note in question, had in her lifetime a note made to her by Lewis L. Conklin for $500, with interest. There is some evidence that she left at her death written directions respecting that note, but the directions are not produced, nor is it made to appear that they were testamentary in character. But it does appear that after her death, Stephen Berdan, her husband, had possession of the note and dealt with it as if it was held by him upon a trust to pay to Louisa Eerdon the interest thereof during her life, and after her death to pay the principal to Stephen B. Eerdon, the appellant. It appears that Stephen Berdan continued to pay the interest on $500 to Louisa Eerdon until August 1st, 1870, when, pursuant to an agreement executed by Louisa Eerdon and her husband and Stephen B. Eerdon, the appellant, Stephen Berdan delivered the note to Louisa Eerdon and was released and discharged from all liability therefor by the said Louisa Eerdon and her husband and Stephen B. Eerdon.

The note thus delivered was the note given by Conklin to Jane Berdan. Appellant testifies that he left that note with his mother so that she might collect the interest. He asserts that he never knew, until after his mother’s death, that a new note had been made by Conklin to the order of his mother. Conklin is now dead. Appellant insists that the note inventoried represents the note originally made by Conklin to Jane Berdan, and lays his claim upon the gift of Jane Berdan to his mother, Louisa Eerdon, for life, and to him upon her death.

The court below refused the relief prayed upon the ground that appellant had not established his claim by proof.

The order may well be supported upon the grounds stated in the orphans court. The money due upon the original note to Jane Berdan is not shown to have been disposed of by her by any testamentary disposition, nor by any proof of a gift inter vivos. Until such proof is presented it remains the property of the representative of Jane Berdan.

But if proof by the appellant could raise the question he seeks to have solved, it is manifest that he has resorted to a tribunal incompetent to give relief. The relief he asks, namely, delivery of the note to him, would leave him as far .from effective relief as when he filed his petition. His claim, if he has any claim which can be sustained, is to be pursued in a court of equity and as against the maker of the note or his representatives. They are not parties to this proceeding. If the note inventoried represents tire original note, the administrator of Louisa Eerdon would also be a necessary party, as well as the representatives of Jane Berdan, deceased. On such a proceeding the appellant, if his proof were sufficient, might obtain relief.

The decree of the orphans court, however, adjudicates that the note in question is an asset of the estate of Louisa Eerdon, to be accounted for by the administrator. This action may embarrass and possibly prevent petitioner from asserting his equitable right in a proper proceeding with proper parties. The proper order would have been to discharge the order to show cause and to dismiss the petition.

The decree appealed from will be thus modified, and affirmed as modified.


author: Bergen, Yice-Ordinart.

text:
    Aaron G. Smith et al., appellants, v. James C. McDonald et al., respondents.
    [Filed June 20th, 1905.]
    1. The statute of distributions having been amended by the repeal of the proviso limiting representation among collaterals to the children of deceased brothers and sisters—Held, that the words “and in case there be no child, then to the next of kindred of equal degree of or unto the intestate and their legal representatives as aforesaid,” are to be read in connection with a prior clause in the act which directs distribution to the next of kindred “in equal degrees or legally representing their stocks,” and that in the distribution of personal property among collaterals representation is limited to the descendants of the stock represented by the surviving next of kin; that if some first cousins are living, being the only next of kin, they constitute the stock entitled to representation, and there being no great-uncles or great-aunts living, first cousins and the representatives of deceased persons of that class take to the exclusion of the descendants of the deceased great-uncles or great-aunts.
    2. The stock entitled to representation are the descendants of the first ancestor in the ascending line common to the intestate, and all the surviving next of kin, the next of kin being of equal degree, taking per capita, and descendants of deceased members of the class, as representing their stock.
    On appeal from Essex county' orphans court.

      Mr. Samuel Kalisch and Mr. Frederick E. Hodge, for the appellants.

      Mr. Edward tí. Atwater, Mr. George T. Parrot, Messrs. G'on-dict, Condict & Boardman, Messrs. Raymond & Van Blarcom, Mr. Frederic M. P. Pead'se and Messrs. E. C. & A. W. Hands, for the-respondents.
   Bergen, Yice-Ordinart.

Who -are the persons entitled to share in the distribution of the personal estate -of ^Cornelia B. Halsey is the question submit'ted. She died intestate, unmarried, and left as her next of kin several first cousins, besides whom the descendants of first cousins and the representatives of deceased persons who, if living, would stand in the same degree of kinship as first cousins, claim to share in the distribution of the estate.

The decree of the orphans court confines the right of representation to the descendants of deceased first cousins, and distributes the estate to first cousins as next of kin, per capita, and to the representatives of deceased first cousins per stirpes, from which decree this appeal was taken.

In 1899 the legislature amended the statute of distributions by repealing the proviso that no representation should be allowed after brothers’ and sisters’ children, and it is urged by the appellants that the effect of such change is to open the door to indefinite representation among collaterals. The subject, so far as I have been able to ascertain, is without direct adjudication, owing to the fact that for centuries the excised proviso controlled it, and little aid can be had from reported cases; therefore the legislative intent must be ascertained by the construction or interpretation of what remains of the statute, reading the entire act, and not alone the particular paragraph affected by the alteration. As the act -now stands, the orphans court is directed, according to section 168, to make distribution “to the next of kindred to the intestate in equal degrees, or legally representing their stocks,” and, according to section 169, “and in case there be no child, then to the next of kindred of equal degree of or unto the intestate and their legal representatives .as aforesaid.”

Under this language the appellants insist that the descendants, however remote, of any deceased collateral, who, if living, would stand in the same degree of kinship with the living next of kin, although of another class of relatives, will take by representation, per stirpes, with the living kindred of the same degree which their ancestor would have occupied if living, and put their claim upon the broad ground that if the next of kin were first cousins, all living, they,-although as a class representing all the next of kin, will not take to the exclusion of the descendants, in infinihim, of deceased great-uncles, and that the shares of such cousins are subject to diminution in proportion to the number of great-uncles and great-aunts dead leaving representatives; nor would the fact that one cousin was dead, leaving children, affect the situation or strengthen the position of the appellants, for they do not claim that the children of great-uncles take because they are of the same degree as second cousins, but alone upon the ground that descendants of great-uncles represent one who, if living, would be one of the next of kin.

The infirmity of the claim of the appellants rests in the fact that it ignores section 168, which directs distribution to next of kin “in equal degrees, or legally representing their stocks ” which means that representation is to be limited to those representing the stock of the next of kin as ascertained by the rule of computation prevailing under the civil law, the accepted method in this state for determining the degree of kinship. This section must be read in .connection with subdivision 3 of section 169, and the words “their legal representatives,” in the latter clause taken to mean legal representatives of their stocks, and having found a common ancestor of the intestate and the living next of kin, the logical .conclusion is that the nearest class of kinsmen descending from that ancestor, together form the stock to which, representation is limited. That the words “next of kin,” as used in the statute, means living persons, cannot be questioned. There must be some one in being whose proximity in blood will give title to the personal estate, and in ascertaining this person we count from the intestate to the common ancestor of the propositus, and the person whose relationship is sought, thence down to that person, and having found the nearest living next of kin we have reached the stock entitled to the fund, among whom alone representation exists. If there should be no issue or parents, the estate would go to the brothers and sisters and their representatives. In that case all the brothers and sisters “would form a complete slock ” and on the death of one leaving children these children would take by representation. Reeve Desc. (preface) 23. “According to the first clause of the statute, all the stocks are. to take.” Wyth v. Blackman, 1 Ves. Sr. 201.

In Hyatt v. Pugsley, 23 Barb. 285, 301, speaking of the distribution of an intestate’s estate, the court said: “And if all his first cousins had survived him they would have inherited equal parts of what descended to them respectively; but as several of them had previously died, the question arises whether or not the cousins must not be assumed as the stock, and the inheritance be divided into as many equal shares as there were first cousins living, or who had died leaving descendants,” and it was held.that such is the division required by the canons of descent.

In this ease the nearest living kin are cousins related in the fourth degree to the intestate. There are no others living of equal degree, and to seek for a more remote ancestor than the grandfather, the progenitor of the stock upon whom the law casts the inheritance for the purpose alone of letting in, by representation, persons of an unequal degree with the living next of kin, would not only be an attempt to provide representation for those who represent no one of a class able to take, but also to furnish a stock not contemplated by the law.

If a great-uncle or great-aunt be alive, then, of necessity, the great-grandfather becomes the common ancestor, and his living descendants, who are the next of kin of the intestate, constitute the stock entitled to representation; that is, it is the stock of the nearest ancestor common to the surviving next of kin and the intestate that is vested with the right of representation. The required ancestor being fixed, representation follows the stock, and if there were no first cousins living second cousins would represent the grandfather of the intestate, for he, being a brother to the great-uncle, the descendants would take along with the descendants of deceased great-uncles and aunts.

On the argument it was insisted that if representation be confined to the immediate class in which survived one of the next of kin, then, if there were no first cousins, but a great-uncle, living, with descendants of. deceased great-uncles, that class would take to the exclusion of second cousins, resulting in the exclusion of all descendants of the grandfather; but this argument has no force, because under the rule of unlimited representation the grandfather, though deceased, would, as brother of the surviving next of kin, be of that class or stock, and be represented by his descendants, which in the ease mentioned are second cousins.

My view of the act, as amended, is,’ that representation is to be limited to the descendants of the stock represented by the living next of kin, and that when you have ascertained the next of kin, all who have descended from the ancestor common to the intestate and the surviving next of kin constitute the stock, the survivors taking per capita,, the descendants of those deceased taking because they legally represent their stocks. The legislation under consideration has recalled some of the difficulties which beset the English courts ages ago, and to remove which the statute of distribution, with the proviso now discarded, was called into life, and it is to be regretted that the legislative intent was not more clearly manifested; but after a careful consideration of the act as it now stands, I am convinced that the representation intended, and which the act now provides for, is limited to those who represent a stock, some of whom are capable of taking, as statutory legatees, under the designation “next of kindred,” and that descendants of that line take as “representing their stocks.” The views which I have expressed result in an affirmance of the decree below.

The record brought up discloses that an application was made to the orphans court for the allowance of counsel fees, which resulted in a decree denying the application, from which an appeal has also been taken. I have been favored with a copy of the reasons which influenced the court in making this decree, from which it appears that the judge of the orphans court found no authority in the law to justify the allowance of counsel fees in such cases. The reasons given by the learned judge are unanswerable. The orphans court is a statutory tribunal, with no powers beyond that conferred by law. X am not aware of any statute which confers the power invoked, and therefore the decree of the orphans court on this branch of the case must also be affirmed.

Application has also been made to this court by all the counsel engaged for the allowance of counsel fees, to be paid out of the fund. The practice in this court of allowing costs and reasonable fees to be paid out of the estate for services rendered for the benefit of those who take the fund,, and who should, in equit)r, contribute toward the payment of the same, seems to be established. Munn's Executor v. Munn, 20 N. J. Eq. (5 C. E. Gr.) 472. In my opinion, the counsel who in this case represent the cousins and descendants of deceased cousins should be allowed their costs and reasonable counsel fees to be paid from the fund, upon the ground that the burden and expense of this litigation should not be borne bj'’ the few who have defended the fund against distribution among those who, it is held, are not entitled to participate. These services and expenses have held the fund together for a limited distribution, and those benefited thereby should contribute. As the payment from the fund will lay the charge in proportion to the interest acquired by the successful litigation, no more equitable method of contribution could be devised. The reasons which lead courts to order the expenses of the successful party from the fund do not apply to the unsuccessful litigant, and it follows that the application for such allowances on behalf of the appellants will have to be refused. The allowances which I am willing to advise will only relate to services in this court, and before determining the amounts I desire counsel entitled, to furnish me a written statement of the time devoted by them to the preparation and argument of the cause in this court, when I will advise the amounts which, in my judgment, should be decreed to be paid from the fund.


author: Bergen, Yioe-Ordinary.

text:
    Caleb Barker, proponent, respondent, v. Elizabeth Streuli, caveatrix, appellant.
    [Decided July 7th, 1905.]
    1. ‘ A testatrix will be presumed to have had knowledge of the contents of her will where it appears that it was prepared according to instructions given by her, that, before its execution, it was in her possession long enough to permit her to read it, and after its execution, over night, with ample opportunity to read it, and that, in the morning, she sealed it up in an envelope and delivered it to her son for safekeeping.
    2. Where a testatrix left nothing to the widow and child of a deceased son (assigning as a reason that they were otherwise amply provided for), but treated her other children with substantial equality— Held, not to show undue influence on the part of her son who was the executor.

      Messrs. Bedle, Edwards & Thompson, for tlie appellant.

      Mr. Arthur B. Denman and Mr. Craig A. Marsh, for the respondent.
   Bergen, Yioe-Ordinary.

The orphans court of the county of Essex decreed the probate of a paper purporting to be the last will of Julia A. Barker, deceased, from which judgment this appeal is taken. Three reasons are urged for reversal, viz.: Want of knowledge of contents of the will; lack of testamentary capacity, and undue influence exerted by the proponent. That the testatrix had knowledge of the contents sufficiently appears to justify the conclusions of the court below on this point. The testimony shows that the will was prepared according to instructions given by the testatrix to her son; that it was in her possession before execution long enough to permit its reading by her, for she had it on the table before her while her son went to a neighbor’s to procure witnesses. She announced to the witnesses when they came that it was her last will, and requested them to act as witnesses to its execution. The attestation clause is in full form, and the testatrix had the will in her possession over night, with ample opportunity to read it, and the next morning, after sealing it in an envelope, she delivered it to her son for safekeeping, who placed it in a safe deposit vault, where it remained unopened until after her death. It often happens, perhaps in most cases, that the will is not read in the presence of the witnesses, and the conduct of this testatrix justifies the finding of the orphans court that the will was drawn according to the express wishes of the testatrix, and that she was well acquainted with its contents.

The claim that the testatrix was lacking in testamentary capacity is not supported by the testimony. On the contrary, while advanced in years, she appears to have been in the possession of sufficient mind and will power to thoroughly understand the character of her property, to remember those who would naturally be the objects of her bounty and to discriminate between them, for after two small bequests of $100 each, she preferred her widowed daughter to the extent of $1,000, and then divided her estate equally by name among all her children living, and as to the widow of a deceased son explains the omission by the statement that she -would be amply provided for otherwise. Whether the reason for this exclusion was a fair one is not important. Its expression, however, indicates that she had not overlooked that branch of her family in considering the objects of her bounty. On the argument it was insisted that as the caveatrix, a daughter of the deceased son, was not mentioned, although her mother was, an inference is properly drawn that the testatrix had not that knowledge of her family which necessaiy mental capacity requires. This contention has not, in my opinion, the support of legal authority, for it is not always necessary that a testator should have a complete recollection of Ms estate and family. But if the insistment of' the appellant was the true rule, it is fully answered by the conduct of the testatrix, for who can doubt that she had in mind the representation of the grandchild by the mother when she gave the reason for omitting the mother from the class to whom she gave her estate, for if she thought' of the widow of her deceased son in arranging for the disposition of her estate, certainly the child of that widow cannot be said to have been beyond her recollection. Numerous letters written by the testatrix before and after the making of this will indicate that she had retained her faculties of mind to a sufficient degree to lawfully dispose of her property by a will.

The last objection, that she was unduly influenced to dispose of her property contrary to what she would have done if free from the dominating influence of her son, the proponent, cannot be sustained. The manner in which she has disposed of her property does not warrant any such inference, for, except the preference to a widowed daughter, and the exclusion of the granddaughter, who is the contestant here, her property goes in equal shares to her nearest relatives. The son whose undue influence, it is alleged, produced this will obtains no preference other than the joint benefit derived by himself and his brothers and sisters from the exclusion of'the granddaughter, and that this exclusion was the deliberate determination of the testatrix is manifested by the fact that enclosed with this will, which was executed on November 5th, 1903, there was left by the testatrix a letter written by her under date of October, 1901. This letter is in the handwriting of the testatrix, and was undoubtedly prepared with reference to some prior will, as it antedates the contested paper. The letter reads as follows:

“My Dearly Beloved Children—I most sincerely hope that the provisions of the accompanying will may be satisfactory to all. I have given the subject much thought and have arranged all, as nearly as possible, according to my sense of right and justice. As regards affection, it is the same for all—I know no difference. My dear son David’s widow and daughter have not been mentioned, because they are apparently amply provided for, and it did not seem right that I should take from those of my children that were differently situated. It has not been from any lack of affection toward them. I feel quite sure that they will understand my motives. I fully realize the solemnity of what I am doing, and feel, almost that I am communicating with you from another world, as this will not be read until after I have taken my final leave of you. My heart is full of love for you all, and my hope is that I may meet you all in another world, whither we are all journeying. I leave my heartfelt blessings for you all.
“Tour Loving Mother.
“October, 1901.”

There is not the slightest proof that this letter was the result of any influence or suggestion, nor is there any proof worthy an instant’s consideration that the proponent undertook to influence his mother in the making of the will, or that any of his acts are subject to any construction other than such kindness and consideration for an aged parent as is due from every dutiful child. To hold that such assistance as this son gave to his mother in the management of her business affairs is evidence of undue influence such as to destroy the testamentary disposition of property would tend to the destruction of filial affection through fear of the charge of undue influence should the parent by will bequeath a portion of his estate to a faithful child.

The reasons given by the learned judge of the orphans court express the law on this subject, and his conclusions are entitled to unqualified approval, and the decree of the orphans court will be affirmed.


author: GUMMEJtE, ChIEE-JUSTICE.

text:
    Henry W. Doremus et al., respondents, v. The Mayor and Aldermen of the City of Paterson, appellant.
    [Argued March 13th and 14th, 1905.
    Decided July 5th, 1905.]
    The riparian owners of lands along the Passaic river, below the city of Paterson, but above tidewater, are entitled to an injunction restraining the city from polluting the stream by discharging its sewage therein, unless the city shall elect to make them compensation for the injury to their property resulting from such pollution.
    On-appeal from an order overruling demurrer to bill advised by Vice-Chancellor Stevens, whose opinion is reported ante p. 188.

      Mr. George 8. Hilton, for the appellant.

      Mr. Sherrerd Repue and Mr. Richwrd V. .Lindabury, for the respondents.
   The opinion of the court was delivered by

GUMMEJtE, ChIEE-JUSTICE.

The complainants are riparian owners along the Passaic river, below the city of Paterson, but above tidewater. By their bill they pray for an injunction restraining the city from further polluting the river by discharging its sewage into the stream, thereby seriously impairing the value of their lands, “unless and until the city shall make such compensation to them for the diminution in value of their lands as shall be ascertained by the court to be just.”

The principal grounds upon which, the demurrer rests are— first, that by reason of the provisions of an act of the legislature, popularly known as the “Passaic Valley Sewerage bill,” approved April 22d, 1903 (P. L. p. 777), the use made by the city of Paterson of the Passaic river as a receptacle for its drainage must necessarily be only a temporary one, and that consequently, “to grant what the bill asked for would be inequitable, unjust and contrary to law;” second, that “the assessment or ascertainment of the damages sustained by the several complainants by the pollution of the river, and the compelling of the defendant to make compensation therefor, would constitute the taking of the property of the defendant without due process of law,” and third, that the’Court of chancery is without jurisdiction to compel the defendant to condemn the property rights of the complainants, which, as the bill alleges, it has taken from them. ' ■

The determination of this appeal does not require a consideration of the first cause of demurrer, for, since the hearing in the court of chancery, this court, in a proceeding brought by the city of Paterson and one Van Cleve, a resident of that municipality, to test the validity of the act of April 22d, 1903, has declared that statute to be unconstitutional and void. Van Cleve v. Passaic Valley Sewerage Commissioners, 71 N. J. Law (42 Vr.) 574.

The other two grounds of demurrer appear, from the argument of counsel for the defendant, to be based upon a misapprehension of the scope of the bill, and also of the opinion of this court in Simmons v. Paterson, 60 N. J. Eq. (15 Dick.) 385, a case involving the right of the city to deposit its sewage in the river without the consent and against the protest of lower riparian owners. In that case the bill filed was an injunction bill, pure and simple, in which the only relief sought was the restraining of 'the city from polluting the river with its sewage. Justice Van Syckel, delivering the opinion of the court, held that riparian owners whose lands lay above tidewater had title ad medium filum aqua, and had a property right’ in the water flowing along and over their land which could not be impaired except by the lawful use of the waters by riparian owners higher up stream; that although lower owners must submit to such pollution by the owners above as results from surface drainage, or from the percolation of offensive matter through the soil, the owners above cannot lawfully combine and, by construction of artificial conduits, collect foul matter and pour it in mass into the stream, and that such action on the part of a municipality located up the stream constitutes the taking of private property for public use, which can only be done, even when sanctioned by legislative authority, upon making just compensation to the lower owner. He further held that although ordinarily, where the riparian owner is injured by the excessive pollution of the stream, he is entitled to the exercise of the injunction power of a court of equity, yet, by reason of the fact that the sewerage system of the city was put in operation under legislative authority, at enormous expense and without objection by lower riparian owners, and because, by the restraint prayed for, the value of this sewerage system would be in a large measure destroyed and the homes of a multitude of people rendered unfit for occupancy, it would be inequitable to direct an injunction to issue if relief could othemvise be afforded. He then pointed out that the payment by the city to the riparian owners of compensation for the injury inflicted would be a just disposition of the controversy, and that power resided in a court of equity to settle unliquidated damages in order to effectuate justice, and finally declared that if the complainants should amend their bill asking for an injunction, unless the city would consent to make such compensation as should be ascertained to be just, equitable relief could be given.

It seems difficult to misapprehend the purport of Justice Yan SyckePs opinion. The gist of it is that the complainants are entitled to relief; that ordinarily they would be entitled to the injunction prayed for, but that, by reason of the unusual conditions recited in his opinion, it would be inequitable to allow the writ if the controversy could be otherwise justly disposed of; that if the city would make compensation to the complainants for the injury inflicted upon their property this would be an equitable disposition of the matter, and that an opportunity to do this ought to be afforded to the city before the court should finally decide whether or not an injunction should issue.

The bill in the present case is framed upon the lines of the opinion in the earlier suit. By it the complainants do not seek to compel the city to make compensation in invitvmj they ask an injunction to restrain the further pollution of the river, but tender the city the opportunity of avoiding the issuance of the writ by making compensation to them for the injury which will accrue to their property by the continued discharge of its sewage into the stream.

The order overruling the demurrer should be affirmed.

For affirmance—The Ci-iiee-Justioe, Dixon, Garrison, Fort, Garretson, Pitney, Swayze, Bogert, Yredenburgh, Yroom, Green.—11.

For reversal—None.


author: Gummebe, Chief-Justice. Swayze, J.

text:
    Benjamin H. Rogers, appellant, v. Zaidee Rogers, respondent.
    [Submitted July 10th, 1905.
    Decided March 5th, 1906.]
    Appeal from a decree dismissing a petition for divorce advised by Vice-Chancellor Garrison, whose opinion is reported in 67 N. J. Eq. 534.

      Mr. Francis Scott, for the appellant.

      Mr. Addison Ely, for the respondent.
   Gummebe, Chief-Justice.

1' concur in the conclusion reached by the vice-chancellor that the petitioner’s petition should be dismissed, but I am not able to agree with him as to the grounds of dismissal. The ground of the petitioner’s application for a divorce was the alleged adultery of the defendant with one William Hobson, a youth .eighteen years old. The vice-chancellor found difficulty in determining from the proofs in the case whether the offence charged against the defendant had in fact been committed by her, and, without reaching a conclusion upon that point, advised the decree upon the ground that if there had been adulterous intercourse between the defendant and Hobson, her wrong-doing had been condoned by the petitioner by his subsequently indulging in sexual intercourse with her on at least two occasions.

The petitioner on the witness-stand denied any resumption of marital relations with his wife after he had discovered (as he supposed) that she had been unfaithful to him, and my examination of the proofs in the cause satisfies me that he tells the truth. I am therefore compelled to determine whether the petitioner lias shown by a preponderance of the evidence the truth of the charge which he brings against the defendant, and the conclusion which I reach, after a careful consideration of all the evidence, is that, although a case is made out which raises grave suspicions as to the wife’s fidelity, and satisfies me that she allowed Hobson to take liberties with her which no self-respecting wife would have permitted, it is not convincing that she took the last fatal step of surrendering her body to his sexual embraces.

For failure of proof in this regard, therefore, I shall vote to affirm this decree. I am authorized to state that Justice Fort and Judges Vredenburgh and Dill concur in these views.

Swayze, J.

I concur in the result reached in this cause, but not in the findings of fact expressed in the opinion. Without expressing any opinion upon the sufficiency of the proof of adultery, I think the evidence justified the conclusions of the vice-chancellor that if the defendant was guilty, the petitioner had condoned the offence.

I am authorized to say that Justice Garrison concurs in this view.

For affirmance—The Chief-Justice, Garrison, Fort, Garretson, Swayze, Bogeet, Vredenburgh, Green, Gray, Dill —10.

For reversal—Dixon, Pitney, Vroom—3.


author: Gummeke, Chief-Justice.

text:
    Gustav W. Lembeck v. Jarvis Terminal Cold Storage Company.
    [Argued June 28th, 1905.
    Decided March 5th, 1906.]
    1. Where freight charges are due from a consignor to a carrier, the carrier’s lien for the charges is terminated by its delivery of the goods to the consignee, as the agent of the consignor, notwithstanding the fact that the consignee promises to do everything in his power to retain the goods until the charges are paid.
    2. Where the carrier delivers goods to a consignee, upon his promise to retain possession of them until the freight charges are paid by consignor, if the delivery and promise are to be considered as making the consignee the agent of the carrier, so far as the possession of the goods, is concerned, then the lien for freight charges is terminated upon their payment by the consignor to the consignee.
    On appeal from a decree in chancery advised by Yice-Chancellor Garrison, whose opinion is reported in 68 N. J. Eq. ‘49$.

      Messrs. Collins & Corbin, for the appellant.

      Mr. Franlc E. Loughran, for the defendant.
    The opinion of the court was delivered by
   Gummeke, Chief-Justice.

Gardemann & Jungclaus, wholesale produce dealers, shipped from their place of business in Iowa three cars of poultry and dairy products to the Jarvis Terminal Cold Storage Company, at Jersey City, to be held by that company in its warehouse, subject to the order of the shippers. The goods reached Jersey City over the line of the Erie Eailroad Company, and were delivered by that company to the Cold Storage Company, the consignee, without collecting the freight charges thereon either from the consignor or the consignee. At about the time of the delivery (whether just before or just after the cars were run upon the siding of the storage company is uncertain), the superintendent of the storage company agreed with the railroad company’s local agent, at the latter’s request, that he would do everything in his power to see that the consigned property was not moved from the storage company’s warehouse until the freight charges had been satisfied to the railroad company. Between two and three weeks after the arrival of the first car, and while the contents of the cars were still in the warehouse at Jersey City, Gardemann k Jungclaus procured to be discounted at the Third National Bank of Jersey City their promissory note for $5,743, secured by a warehouse receipt upon the goods consigned. Of the proceeds of this note, $5,000 went to the makers and the rest went to the Cold Storage Company to pay the freight and insurance charges upon the consignment. Subsequently, and while the consignment was still in its possession, and while it still retained the moneys paid to it in settlement of the freight charges, the Cold Storage Company was adjudged to be insolvent upon proceedings taken against it in the court of chancery, and a receiver was appointed. After the appointment of the receiver a company known as the Western Cold Storage Company, which had in the meantime purchased the consigned poultry and dairy products from Gardemann & Jungclaus, began their removal from the Jarvis company’s warehouse. Upon learning of this fact the railroad company protested to the receiver against the removal of the goods until its freight charges had been satisfied, claiming that it had a lien upon the goods until that was done. Thereupon the receiver refused to permit the Western Cold Storage Company to take away from the storehouse any more of the consignment until the claim of the railroad company was disposed of. Negotiations between the railroad company and the eastern agents of the Western Cold Storage Company resulted in -the deposit by the latter with the receiver of the sum of $743, under a stipulation between the-parties by the terms of which the deposit was to stand in lieu of the goods, and was to be held by the receiver' until it should be determined by the court of chancery whether or not the railroad company had a lien for its freight charges upon those goods. If it was determined by the court that the railroad company had such lien, the deposit was to be held subject thereto; and if it was determined that no lien existed, the deposit was to be returned to the agents of the Cold Storage Company. The matter was then submitted to the court by prepared pleadings filed in the insolvency proceedings, and upon the hearing it was decreed that the railroad company had no lien, and that the agents of the Western Cold Storage Company were entitled to the return of their deposit. From that decree the railroad company appeals.

In our opinion, the facts recited justified the decree appealed" from. The delivery of the consigned goods by the railroad company to the Jarvis company was made to the latter either as the agent of the owners, Gardemann & Jungclaus, or as the agent of the railroad company. If the Jarvis company received the goods as the agent of the owners, then the common law lien of the railroad company for its freight charges was thereby terminated, notwithstanding the fact that the superintendent of the Jarvis company promised to see to it, so far as he was able, that the goods should not be removed from the company’s warehouse until those charges were paid. A carrier is entitled to retain the goods until his charges are paid, but if he sees fit to deliver them to the owner before receiving payment, he thereby relinquishes his right to pursue the goods, and must look for payment to the person liable for the freight charges. That this is the settled rule is abundantly shown by the authorities collected in the opinion of the learned vice-chancellor who heard the case in the court below. On the other hand, if the Jarvis company received the goods from the railroad company as the agent of the latter, and retained the possession of them as such agent pending the payment of the freight charges, then the payment to it of those charges by Gardemann & Jungclaus was a payment to its principal, the railroad company, and terminated the carrier’s lien.

The decree appealed from should be affirmed?

For affirmance—The Chiee-Justice, Dixon, Garrison, Port, Pitney, Swayze, Bogert, Yredenburgh, Yroom, Gray —10.

For reversal—None.-


author: Gummerb, Ci-iiee-Justice.

text:
    James Lloyd et al., appellants, v. Peter Hulick et al., respondents.
    [Argued June 23d, 1905.
    Decided March 5th, 1906.]
    The defendant agreed, in. writing, to convey certain lands to the complainants for a consideration, which was paid. After accepting the deed, under the supposition that- it conformed to the written agreement, the complainants discovered that there had been fraudulently inserted in the conveyance certain restricting covenants in violation of the terms of the agreement, and a provision that such covenants should be construed as running with the land and that a breach of either of them should cause the lands to revert to the defendant.—Held, that the complainants are entitled to have the deed reformed by expunging the covenants from it, notwithstanding that they might have discovered, by an examination of the deed before acceptance, that the conveyance was not such a one as they had bargained for. ■
    Oil appeal from an order of the court of chancery overruling demurrer to bill.

      Mr. Thomas P. Fay, for the appellants.

      Messrs. Parker ■& Ym Gelder, for the respondents.
   The opinion of the court was delivered hy

Gummerb, Ci-iiee-Justice.

The complainants by their hill seek the reformation of a conveyance of lands made to them hy the defendants Peter Hulick, Carrie M..Flock and J. W. Flock, her husband. The allegations of the bill are that the defendant Hulick entered into a contract in writing with the complainants, by the terms of which he agreed to convey to them, for a consideration of $4,000, certain lands and premises, which ho then owned, in the city of Long Branch, by a deed warranting the lands to be free and clear of all encumbrances;' that after making this agreement, Hulick conveyed the lands and premises to his daughter, the defendant Carrie M. Flock, who accepted the conveyance with full knowledge of the existence of the agreement between her father and the complainants and of its provisions; that at the time of making the agreement, and in compliance with one of its terms, the complainants paid to Hulick the sum of $200 in cash on account of the purchase-money; that upon the day fixed for the delivery of the deed they paid to Hulick the further sum of $800 in cash, and executed and delivered to' him a purchase-money mortgage upon the premises for $3,000;. that those payments were made in strict conformity to the provisions for the payment of the consideration-money set forth in the agreement; that upon receiving the payment of the $800' and the purchase-money mortgage, Hulick, together with his daughter, Mrs. Flock,, and the latter’s husband, executed and delivered to the complainants a deed of conveyance for the property, which they accepted, supposing that it conformed in every particular to the provisions of the prior written agreement;, that an examination of the deed discloses that there is inserted', in it a covenant restricting the complainants from dividing the land into lots less in size than one hundred by two hundred feet,.. or from erecting a house upon said premises costing less than $5,000; also a covenant restricting the complainants from selling any portion of the premises to any person of African descent, and in addition, a provision that each of these covenants-is to be construed as running with the land, and that upon a. violation of either of them by the complainants the premises; shall revert to the grantors or their heirs. The bill then alleges-that these provisions were inserted in the deed by the defendants for the purpose of evading the performance of the agree* ment according to its terms and to prevent the complainants from obtaining the full benefit thereof. The relief sought is ■.the expunging from the deed of all these restrictive covenants. .A demurrer was interposed by the defendants upon the ground that the bill did not disclose a case which entitled the complainants to relief. Upon hearing an order was entered overruling the demurrer, and from that order this appeal is taken.

The facts recited in the bill present a case which entitles the -complainants to relief. Upon payment of the consideration -provided by the agreement they were entitled to have delivered to them by the defendants a conveyance which should conform to the terms of that agreement. The intentional insertion in the deed by the defendants of the restrictive covenants set forth in the bill was in fraud of that right. Its delivery by the deféndants to the complainants without a disclosure of the fact that it contained these covenants was equivalent, it seems to me, to a declaration on their part that the deed was drawn in conformity, to the provisions of the contract. It is true that the -complainants might readily have discovered, by an examination -of the deed before accepting it, that it was not what they had bargained for, and it may be conceded that prudence upon their part required a scrutiny of the deed before its acceptance by them. But I am not able to perceive that their failure to discover the fraud disentitles them to relief. Ip the transaction of business men ordinárily deal with -one another in the belief that ■each is honest. If the opposite belief prevailed in such dealings ¡attempted frauds would rarely be successfully carried into execution and courts would seldom be called upon to grant relief ¡against them. Failure to discover an intended fraud before it has been actually perpetrated must necessarily exist in every case where the courts are appealed to to relieve the wronged party from its effects, and the fact that the exercise of a greater -degree of prudence on the part of him who has been defrauded would have prevented the fraud from being successfully carried through affords no ground for refusing relief.

The effect of the restrictive covenants contained in the deed is beyond question to reduce materially the value of the granted promises in the hands of the complainants, and upon the facts stated in the bill they are entitled to have-the deed reformed by expunging them from it.

The order overruling the demurrer should be affirmed.

For affirmance—Ti-ie Chief-Justice, Garrison, Garret-son, Pitney, Swayze, Eeed, Bogert, Vroom, Green, Gray —10. • .

For reversal—Dixon, Yredenburgh—2.


author: GUMMEKE, CiIIEX’-JeSTICE.

text:
    Agnes H. Lippincott, appellant, v. Samuel C. Smith et ux. et al., respondents.
    [Argued June 26th and 27th, 1905.
    Decided June 18th, 1906.]
    1. By force of the ninth section of “An act, relative to sales of land under a public statute, or by virtue of any judicial proceedings” (3 Gen. Stat. p. 2981), a judgment recovered against the heir, upon which execution has been issued and a levy made thereunder, becomes a lien upon lands descended, and upon which the levy has been made, prior to that of a judgment recovered against the ancestor upon which execution has been issued but under which no levy has been made; and the holder of the junior judgment is entitled to priority of payment out of the proceeds of sale of such lands, whether the sale be made under an execution at law or by virtue of a decree in chancery.
    2. Clement v. Kaiglm, 15 N. J. Bq. (2 MeCart.) 1ft, followed.
    8. Bogert v. Lydeeher, 1[5 N. J. Law (16 Yr.) 315, approved.
    On appeal of Daniel Y. Snmmorill, Jr., from a decree in chancery advised by Yice-Chancellor Grey, whose opinion is reported ante p. @b8.

      Mr. Samuel IT. Richards, for the appellant.

      Mr. Ephraim Tomlinson and Mr. Peter V. Voorhees, for the respondents.
   The opinion of the court was delivered by

GUMMEKE, CiIIEX’-JeSTICE.

This is a bill for partition. The lands were not susceptible of an actual division and were therefore sold. The undivided interest of Joseph A. Burrough, one of the tenants in common, was subject to the lien of two judgments, one held by Eachel Burrough and the other by Daniel V. Summcrill, Jr., each of whom claim to be entitled to priority of payment out of Joseph A. Burrough’s share of the proceeds of sale. His share of the proceeds, being insufficient to satisfy both judgments, is held by the court of chancery to await the determination of this question of priority.

The facts which gave rise to the controversy are as follows: Joseph A. Burrough was the son and only heir-at-law of Mary A. Burrough, and inherited from her the undivided interest which he held in the lands sought to be partitioned. The judgment *of Eachel Burrough was recovered against Mary A. Bur-rough during the latter’s lifetime. Execution was issued upon this judgment, but no levy was made thereunder. The judgment of Summcrill was recovered against Joseph A. Burrough after the death of his mother. Upon this judgment execution was also issued, and a levy was made under it upon'the interest of Joseph A. Burrough in the lands sold under the partition proceedings.

The vice-chancellor before whom the case came on to be heard considered that, under our statutes, the creditor of an heir could not, by entry of judgment and levy upon lands descended, acquire a right of payment from the ancestor’s lands in priority to a judgment recovered against the ancestor, and which was a lien upon the land when the heir took his estate. He therefore advised that the Eachel Burrough judgment was entitled to be first paid out of the proceeds of sale. From the decree entered in accordance with that advice this appeal is taken.

The solution of the question which this controversy raises depends upon the true construction of the ninth section of “An act relative to sales of land under, a public statute or by virtue of any judicial proceedings.” 3 Gen. Stat. p. 2981. That section reads as follows:

“Whereas, other judgments and recognizances besides those, or some of those, by virtue whereof the sale aforesaid [i. e., the sale of land by a sheriff or other officer by virtue of a writ of execution] was made, might affect the lands, tenements, hereditaments and real estate so sold, if no provision be made to remedy the same; and whereas, the persons who have not taken or will not take out executions upon their judgments or recognizances ought not to hinder or prevent such as do take out executions from having the proper effect and fruits thereof; therefore be it ■enacted that the purchaser, his heirs and assigns, shall hold the lands, tenements, hereditaments and real estate by him or her purchased as aforesaid, free and clear of all other judgments and recognizances whatsoever, on or by virtue of -which no execution has been taken out and executed on the lands, tenements, hereditaments and real estate so purchased.”

'The learned vice-chancellor who advised the decree appealed from was of opinion that this statutory provision dealt only with judgments recovered against the same person, and had no application in the case of judgments one of tvliich was recovered’against tire ancestor and the other against the heir. But this construction of the statute seems to us to be too narrow. The evil which the legislature sought to remedy is pointed out by the preamble, and that is the hindering or preventing of judgment creditors, who take out executions, from having the proper effect and fruits of their diligence by the holders of prior judgments who refuse or neglect to enforce them by execution and sale. The statute deals with the rem—the judgment as a lien upon the land; it does not regard the party against whom it was recovered. The situation to be dealt with is the same whether the prior judgment, which the holder refuses or neglects to enforce against the land, was recovered against a present or former owner of the land. The judgment is equally a hindrance to the diligent creditor—equally prevents him from having the proper effect and fruits of his diligence—no matter against whom it was recovered, if it be a lien upon the land he seeks to have sold. The remedy given by the statute is >as broad as the mischief which it was intended to correct. The sale made under the execution issued on the junior judgment conveys a title to the purchaser, not only free and clear of all other judgments which have been recovered against the defendant in the junior judgment, but “free and clear of all other judgments whatsoever.” A construction of the statute which limits its operation to senior and junior judgments recovered against the same person is not required by its language; it renders it, to some extent, ineffective in remedying the evil against which it is directed; it disregards the express declaration of the statute itself as to its scope.

It is suggested, on behalf of the respondents, that the statutory provision under consideration is limited in its application to sales made under executions issued upon junior, judgments; that it deals primarily with, the title which a purchaser at such a sale shall acquire, and with the priorities of judgment creditors only as an incident to the purchase. The suggestion is not a novel one, although the point raised has never been directly passed upon by this court. It was necessarily involved in the decision of Clement v. Kaighn, 15 N. J. Eq. (2 McCart.) 47, a case decided nearly half a century ago in the court of chancery, and was thus dealt with by Chancellor Green in his-opinion: “The statute, in terms, relates merely to the title which a purchaser by virtue of a sheriff’s sale under an execution at law shall acquire. It declares that the purchaser under a sale by virtue of an execution issued upon a junior judgment shall hold the land clear of all judgments upon which no execution has been taken out and executed on said land. In effect, that gives to the junior judgment by virtue of which the land is sold priority over the senior judgment upon which no execution hath been sued out and executed upon the land. But the design of the statute is to give to the plaintiff in the junior judgment, upon which execution is first sued out, the proper effect and fruits thereof. The operation of the statute cannot, therefore, be limited to the case of a sale under the junior judgment, where no excciition hath been sued out upon the senior judgment and levied upon the land; for, if that were so, it would enable the plaintiff in the prior judgment to sue out and levy his execution upon such judgment after the levy under the execution upon the junior judgment, and thus defeat the express object of the statute by preventing the jDlaintiff in the junior execution from obtaining the effect and fruit thereof. To give effect, therefore, to the' statute it is necessary to hold that the plaintiff in the junior judgment, by suing out and levying the first execution upon the land, acquires a priority of lien which cannot be affected by any execution subsequently issued, nor by any mode in which the land may be sold. The issue of the execution upon the junior judgment and its delivery, duly recorded, to the sheriff [and the levy thereunder upon the land] destroys the priority which was enjoyed by the older judgment and transfers it to the junior judgment. It reverses the priority of the encumbrances, no matter in what mode the land may be sold.”

Speaking for myself, I concur in the reasoning of the distinguished jurist who delivered this opinion, and consider that he rightly decided that this statutory provision “reverses the priority of the encumbrances, no matter in what mode the land may be sold.” _ But even if the logic of his argument was of doubtful soundness, the construction which he then put upon the statute ought not now to be departed from. Ever since its promulgation, in 186.2, the decision has been followed by the court of chancery whenever the principle established by it was relevant to the case then under consideration. In Lovejoy v. Lovejoy, 31 N. J. Eq. (4 Stew.) 55; Andrus v. Burke, 61 N. J. Eq. (16 Dick.) 297, and Meeker v. Warren, 66 N. J. Eq. (21 Dick.) 146, the facts, in their legal aspect, were identical with those of Clement v. Kaighn, and the decision in each of them was rested solely upon the construction put upon the statute by Chancellor Green. In Bogert v. Lydecker, 45 N. J. Law (16 Vr.) 315, the supreme court expressly approved the conclusion reached in that case. In Hoag v. Sayre, 33 N. J.. Eq. (6 Stew.) 552, this court followed it, so far as it was applicable to the facts of the ease then in hand. So far as we are aware, it has been universally accepted by the members of the profession as a sound exposition of the statute in their dealings with questions which involved its application. Originally it may not have been of grave consequence whether the statutory provision received the broad construction given to it in Clement v. Kaighn or the narrower one suggested by counsel for the respondent. But, granting-this, it certainly is important that the construction then adopted, and so universally followed during so long a period, should be firmly adhered to. As was said by Chief-Justice Beasley, in Merritt ads. Day, 38 N. J. Law (9 Vr.) 36: “The business of life rapidly accommodates itself to any rule that is judicially promulged, the reason being that it is confidently believed that such rule will rrot be arbitrarily changed, and the highly practical maxim, stare decisis, is a recognition of the palpable injustice of disappointing such legitimate expectations. The crisis, therefore, does not often occur which justifies the overthrow, by judicial action, of an inveterate rule of law.” The rule of law established by this case should not be disavowed after so conspi choirs and protracted an existence, or even considered to be liable to challenge.

It wilL have been perceived that in Clement v. Kaighn the court dealt with a case in which no execution had been issued upon the senior judgment, while in the present case an execution has been sued out upon the senior judgment but no levy had been made thereunder. But this variance is immaterial in determining the respective rights of the present parties. In Bogert v. Lydecker, above referred to, the same situation was presented as exists in this case. It was there-pointed out that one of the purposes of the statute was “to prevent the continuance of the lien oE a prior unlevied judgment,” and the conclusion reached was that the lien of a prior judgment is supplanted by the lien of a junior judgment on which an execution is sued out, delivered to the sherifE and levied before the delivery of and levy made on an execution sued out on the prior judgment. The soundness of this conclusion seems to us to be indisputable, and for- the reasons stated in the opinion in the case.

The judgment of the appellant, Summerill, is entitled to priority of payment out of the proceeds of the sale of the share of Joseph A. Burrough in the lands sought to be partitioned, and the decree under review must be reversed.

For affirmance—Swayze, Yeoom—2.

For reversal—The Chief-Justice, Gabrisoh, Eoet, Gae-BETSOKT, PlTHEY, EEED, BOGEET, YeEDENBUBGH, GREER, GeAY —10.