author: Gummere, Chief-Justice.

text:
    Clarence D. Costello et al. v. Thomas Cusack Company et al.
    [Decided March 5th, 1923.]
    1. A certificate of incorporation of a New Jersey corporation cannot he amended by adding provisions thereto which could not lawfully have been inserted in the original certificate.
    2. Section 39 of the Corporation act declares what shall be the qualifications of a director of a corporation, and by implication eon-' stitutes a limitation upon the power of a corporation to alter or add to those qualifications.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Griffin.

      Mr. Robert II. McCarter (Mr. John M. Enright on the -brief), for the appellants.

      Mr. John J. Mulvaney (Messrs. Treacy & Milton on the brief), for the respondents.
   The opinion of the court ivas delivered by

Gummere, Chief-Justice.

The complainants, who are stockholders of the Thomas Cusack Company, filed their bill praying an injunction restraining that corporation and its stockholders from amending its certificate of incorporation by inserting therein the following provisions:

“No person shall be eligible to become or to remain a director of this corporation if he, or any member of his immediate family, shall be directly or indirectly interested either as owner, partner, stockholder, officer, director, agent, employe, attorney, lender of money, beneficiary, trustee or otherwise, in any business which competes with, or is antagonistic to, the business of this corporation.
“No attorney, agent, employe, partner, trustee or member of the immediate family of any person who is or becomes ineligible, under the provisions of the next preceding paragraph hereof, shall be eligible to become or remain a director of this corporation.
“Any director of this corporation disqualified to continue as such shall be subject to immediate removal from such office by the board of directors.’’

Upon the hearing the learned vice-chancellor considered that the injunction prayed for should be allowed, for the reason that, although it' was within the power of the corporation to amend its certificate of incorporation in the manner intended, yet the exercise of that power was unreasonable and should not be permitted.

We concur in the result reached by the vice-chancellor, but we prefer to put our decision upon another ground. The defendant company was organized under our General Corporation law. Its powers are those conferred upon it by that statute. It had the right, under the provision of section 8 of the act, to insert any provision which it saw fit for the regulation of its business and the conduct of its affairs, and also “any provision creating, defining, limiting and regulating the powers of the corporation, the directors and the stockholders, or any class or classes of stockholders; provided, such provision be not inconsistent” with other provisions of the statute. By section 27 of the act, it was authorized to amend, as it might see fit, its original certificate of incorporation, provided that the amendment should “contain only such provision as it would be lawful and proper to insert in an original certificate of incorporation made at the time of making such amendment.”- The question to be presently determined, therefore, is whether by these provisions power is conferred upon the defendant corporation to amend its certificate in the manner proposed. That the amendment cannot be made unless the intended added provisions might lawfully have been inserted in the original certificate is apparent from a reading of section 27. It is conceded by counsel that the right to make it depends upon the true construction of section 8, which authorizes the insertion in the original certificate of incorporation of “any provision defining, limiting and regulating the powers of * * * the directors.” In our opinion, this statutory provision does not authorize the proposed amendment. It does not attempt to define, limit or regulate the powers of directors, but deals solely with the qualifications of such officers. It is argued that, even if it be considered that the provision in the statute does not expressly authorize such an amendment, yet the right to determine the qualifications of members of the board is necessarily implied in the power given by the statute to regulate the business and conduct the affairs of the corporation. There would be force in this contention except for 'the fact that the legislature itself, in section 39 of the act, has declared what shall be the qualifications of a director of a corporation; and that is that he shall be a bona fide holder of the stock thereof, and shall hold the number of shares that the corporation, by its certifi.eate of incorporation or by-laws, shall have determined shall be necessary in order to qualify him to be a director. This section, it will be observed, contains not only a description of the qualification, but also, by implication, a limitation ■upon the power of the corporation to alter the qualification; for, by declaring that a corporation may determine how many shares a person shall hold to qualify him as a director, it impliedly negatives the idea of the existence of any further power lodged in the corporation to impose additional restrictions upon the right of a stockholder to be chosen as a director by his fellow stockholders.

Bor the reason indicated, we conclude that the proposed amendment to the certificate of incorporation is not permitted by the statute, and that the injunction, therefore, was properly allowed.

The deeree appealed from will be affirmed.

For affirmance—The Chiee-Justice, Swayze, Trenchard, Parker, Bergen, Black, Katzenbach, Gardner, Ackerson, Van Blsictrk—10.

For reversal—None.


source: Caselaw Access Project

license: Public Domain

text:
    John C. Tyll v. Anna Keller.
    [Decided March 5th, 1923.]
    1. The law presumes a continuance of life until seven ,ears have elapsed from the time the person was last heard from, but such presumption is not conclusive, and where it would render the party against whom it is raised guilty of a bigamous marriage, and would stamp his child as a bastard, the presumption of innocence of crime overcomes that of continuance of life, even though seven years have not elapsed.
    2. One who ashs annulment of his marriage with a woman who had another husband living at the time of her marriage with the petitioner, must show by a preponderance of evidence that when he married her he was ignorant of the fact that she then had a husband living from whom she had not been divorced.

      On. appeal from a decree in chancery.

      Mr. Samuel Eoestler and Mr. George Schmidt, Jr., for the appellant.

      Mr. Theodore D. Gottlieb, for the respondent.
   The opinion of the court was delivered by

Gummere, Chief-Justice.

The presént appellant, John C. Tyll, filed his petition in the court of chancery seeking to have a ceremonial marriage entered into between himself and the respondent on June 23d, 1919, declared null and void, upon the ground that at the time thereof there was a subsisting marriage between the respondent and one Louis Bozear. TJpon final hearing the petition was dismissed, and Tyll appeals.

The undisputed facts necessary to be considered in determining whether the present appeal is well taken are as follows: The man Bozear, referred to in the appellant’s petition, entered into a ceremonial marriage in the city of Newark on October 16th, 1910, with one Eraneiszka Naszka. So far as is known there -was no issue born of this marriage, and shortly after it took place the parties -separated, and the Naszka woman returned to Austria, which was the place of her birth and original home, and has not been seen or heard of since the year 1911, so far as the testimony shows.

On September 1st, 19.16, approximately five years after the Naszka woman had been last heard of, the man Bozear and the present respondent were married in the town of Chatham, in this state, by the Rev. R. A. Mahoney, and shortly afterward Bozear left the respondent, and they have not since lived together. A child was born of this marriage.

On June 23d, 1919, the appellant and the respondent were married, in the city of Newark, by the Rev. E. Rolinski, and they lived together as husband and wife until some time in the month of May, 1921. A child was born of this marriage. The man Bozear was living at the time of the marriage of the parties to this suit, and the present respondent has never been divorced from him.

We think it must be presumed that the ceremonial marriage between the man Bozear and the woman Naszka, in October, 1910, was a valid oné. This being so, the question arises, What was the status of the marriage between Bozear and the present respondent ? As has been stated, the FTaszka woman returned to Austria in 1911, and has not since been seen or heard of. The law ordinarily presumes a continuation of life until seven years have elapsed after a person has been last heard of. But this presumption is not a conclusive one; and, where that presumption would, as in the present case, rendeithe party against whom it is raised guilty of a bigamous marriage, and would stamp his child as a bastard, the presumption of innocence of crime overcomes that of continuance of life, even though seven years have not elapsed. And it was for this reason that this court held, in the case of Vreeland v. Vreeland, 78 N. J. Eq. 256, that where a former husband of the defendant in that case had disappeared and been unheard of for a period of more than three but less than four years, at the end of which time the defendant had remarried, the second marriage was presumed to have been a lawful one, the presumption of continued life having been overcome by the presumption of the innocence of the defendant of the crime of bigamy. Under the doctrine of this case, therefore, the marriage between Bozear and the respondent must be presumed to have been a valid one.

This being so, what is the status of the present parties? At the time of their marriage the respondent had a husband living, from whom she had not been divorced. She was therefore not competent to enter into a valid marriage contract with the appellant, and the attempted marriage between them was void. Consequently, the appellant was entitled to the relief he sought, provided that when he married the respondent he was ignorant of the fact that she then had a husband living, from whom, she had not been divorced. If he had this knowledge, and, notwithstanding it, went through the marriage ceremony with the respondent and cohabited with her for more than a year, the fact that he afterward tired of his bargain did not entitle him to the relief that he now seeks from a court of equity. In order to entitle him to a decree of nullification, he was bound to prove not only the former marriage of the respondent to Bozear, the fact that the latter was alive when he (the appellant) married the respondent, and that Bozear and the respondent had not been divorced; but, further, that when he married the respondent, he did so in ignorance of these facts, and under a belief that she was free to marry him, if she desired to do so. The burden rested upon him to prove not only all of these facts, but also his own innocence of any intentional violation of the law by a preponderance of the evidence; and this he failed to do, so far as the last factor—i. e., his own innocence—is concerned. Looked at in the light most favorable to him, the best that can be said is that the testimony was in equipoise—that is, that he did not bear the burden which the law imposed upon him of proving his innocence by, a preponderance of the evidence.

Eor this reason, we think, the decree under review should be affirmed.

For affirmance—-The Chief-Justice, Swayze, Trenchard, Parker, Bergen, Kalisch, Black, Katzenbach, White, Gardner, Ackerson, Van Buskirk—12.

For reversal—None.


author: Swayze, J.

text:
    William Seymour, complainant-respondent. v. Caroline Laverty, defendant-appellant.
    [Decided March 5th, 1923.]

      On a bill for specific performance where the vendor had remained in possession of the land, the chancellor charged her not only with rents actually received but the whole rental value of the property— Held, erroneous, in the absence of proof that the vendor was responsible for delay or the failure to realize the rental value.
    On appeal from a decree of the court of chancery.
    This is a bill for specific performance of a contract for the sale of a house and lot in Atlantic City. The contract is evidenced by two written memoranda as follows:
    “Feb. 12, 1920.
    Mrs. Caroline Laverty has promised to sell the property 2519 Pacific Ave. to W. P. Seymour, no set date for deposit, but as soon as his settlement is made on his property, deposit to be made within 10 days from Feb. 15th, fifteenth, 1920, for sum of $6,500 clear and free of all encumbrance. Deposit to be $500 and house to be in good condition. Deed to be drawn same as in the original deed.
    Wm. P. Seymouk.
    Mbs. Cabbie Lavebty.
    Witness:
    Mabgabet Desmond.”
    “Feb. 14, 1920.
    Received from Wm. P. Seymour $25.00 twenty-five dollars deposit part payment for property 2519 Pacific Ave., Atlantic City, N. J. Price of property $6,500, $475 to be paid on or before Feb. 25, 1920. Balance $4,000 to be on a mortgage, two thousand dollars to be paid on Sept. 15, 1920. Money to be loaned on mortgage by Mrs. Caroline Laverty of the above address.
    Mbs. Cakeie Lavebty.
    Wm. P. Seymoub.
    Witness:
    Mabgabet Desmond.”

      'The decree was in favor of the complainant and directed that if the defendant should not insist upon being paid the entire amount in cash or should the defendant be willing to accept a purchase money mortgage for $4,000, payable on demand, there is due from the complainant to the defendant the sum of $265.07.

      Messrs. Mar court & Steelman, for the complainant.

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

Swayze, J.

On the main issue in the case we agree that the memoranda were the contract of the defendant and that they are sufficient to satisfy the statute of frauds. We agree also that payment in cash or in a purchase money mortgage payable on demand is a sufficient compliance with the agreement to give a mortgage for $4,000. We differ with the vice-chancellor however in the amount to be credited to the complainant, the vendee, for rents of the property. The matter was referred to a master, and he ascertained (apparently without any specific direction to that effect other than the direction to take an accounting between the parties) the rental value of the premises from September 15th, 1920, the date when the contract was to be performed, to May 15th, 1922 (convenient date arbitrarily selected), to be $2,141.60. Of this amount $25 a month was actually received by the defendant from a tenant; $400 was an amount she probably could have received from another tenant for other rooms if she had been able and willing to rent them, and the balance consisted of rental value of other rooms not rented or shown to be rentable, based largely upon the opinion of expert witnesses. The amount actually received was properly charged to the defendant-vendor. The balance we think was not properly chargeable to her for the reason that she could not legally have made a lease to a tenant without the consent of the complainant who had the equitable title and was entitled to a conveyance as the vice-chancellor has held and we now hold. The injustice of charging her with money she never received and could not legally contract to receive is made apparent by the fact that a large portion of the purchase price was exhausted by the payment to the vendee of what the vendor had never received. It is in effect paid out of the coipus of the estate. This amount was increased by the delay in bringing the case to a final issue, the responsibility for which rested upon the complainant. It may be that, in addition to the $25 a month, some small charge of $5 or $8 a month for separate rooms in the house should be made against the vendor'. We are unable to ascertain from the record the amount actually received. Naturally enough the master, having charged the defendant with the full rental value, did not find it necessary to deal with these items. We understand there is no contro-' versy about the other items on either side.

The question was properly raised on exception to the master’s report. The third exception reads: “the defendant is not chargeable with any penalty for delay. This case was not moved by the complainant until notice to dismiss was given by the defendant. The master’s report has been delayed a year, although the proceedings were under the control of the complainant’s solicitor.”

The statements set forth in the exception seem to be true. They require a reversal of the decree. No hard and fast rule is laid down by the authorities as to charging a vendor who remains in possession with rental value as distinguished from rents actually received. It seems to depend on whether the vendor is responsible for the delay or wrongfully or wilfully in default. 39 Cyc. 1629; Leggott v. Metropolitan Railway Co., L. R. 5 Ch. 716; Dakin v. Cope, 2 Russ, 170; Pom. Cont. § 427.

Let the record be remitted in order that the master may review his findings in accordance with the views herein expressed.

We think it well to add that the first exception is improper. It is that the report is against the equity of the case, common sense and common justice. This form of exception was condemned by the chancellor in McCauley v. McCauley, 88 N. J. Eq. 392.

For affirmance—E one.

For reversal—Hone.

For modification—The Chiee-Justice, Swayze, Trenchard, Bergen, Kalisch, Black, Katzenbaoh, White, Gardner, Ackerson—10.


text:
    Louis F. Bettcher, complainant-appellant, v. Henry F. Knapp et als., defendants-respondents.
    [Decided March 5th, 1923.]
    1. Section 5 of the New Jersey statute of frauds does not have the effect of requiring the entire agreement to be in a formal contract. It is enough if some memorandum or note thereof be in writing.
    2. Where the parties to a contract for sale of lands make it an essential part of their agreement that it be embodied in a formal written instrument, the matter remains in fieri until the written instrument has been delivered.
    3. Where a vendee of land is buying of executors as vendors, land of the estate, he must when he seeks specific performance establish that the price agreed to be paid is fair.
    On appeal from an order advised by Vice-Chancellor Eielder.

      Mr. John Warren, for the complainant.

      Mr. Paul Q. Oliver, for the defendants.
   The opinion of the court was delivered by

Swayze, J.

This is a bill for specific performance of a contract to convey land. The vendors are executors of Henry F. Knapp, deceased, who died seized. The contract was made by-Anthony, one. of the executors, through a parol agreement between Anthony and the complainant. The complainant agreed to mail the formal contracts to Anthony with a check for the required deposit; Anthony was to sign the contracts and have the other executors sign. One of them is said to be a man not to be got very easily as he was traveling. The contracts were signed in duplicate and came back to the hands of Anthony. Meantime he had ascertained that the property instead of being worth $1,700 was worth $2,800, which amount Betteher himself had offered for it; it was assessed for taxes at a valuation of $2,300.

Under these circumstances Anthony refused to deliver the contract and this suit was brought.

The learned vice-chancellor held that under the statute of frauds the complainant must base his action upon the formal written contract and not upon 'the informal agreement, and the formal contract he held to be nugatory for want of delivery to the vendee. The statute of frauds does not have the effect thus attributed to it. The fifth section is the one applicable and the essential words of that section are that no action shall be brought upon any contract for sale of lands or any interest in or concerning them unless the agreement upon which the action is brought or some memorandum or note thereof shall be in writing and signed by the party to be charged or some other person thereunto by him lawfully authorized. The memorandum or note of the agreement is all the writing that is required. The objection, however, to the enforcing of this contract goes deeper than the lack of a memorandum or note in writing. The memorandum itself was not meant to be the complete agreement; an essential part of the agreement was that it should be embodied in a written instrument. The matter remained in fieri until the written instrument embodying the complete agreement became binding by delivery to the vendee. So the present complainant himself thought. He drew the papers that were to be signed and he anxiously expected to have the duplicate returned to him. The reason for his anxiety is clear. He wanted some document that he could record, so as to be notice to all the world of his rights, and he could rely upon nothing in that respect except a formal written contract. He could not, under the circumstances of this case, himself have felt that the contract was complete until it was embodied in formal shape. The formal document was meant to be the contract.

The case is governed in this respect by water commissioners of Jersey City v. Brown, 32 N. J. Law 504; Donnelly v. Currie Hardware Company, 66 N. J. Law 388; Trenton and Mercer County Traction Corporation v. Trenton, 90 N. J. Law 378; affirmed, 91 N. J. Law 719.

There is, however, another reason of equal force against the complainant. He was buying of executors’ property that belonged to the estate and he was chargeable with notice of the trust. He does not seek to enforce any legal claim but relies entirely upon his equitable claim to specific performance. But the remedy of specific performance is largely within the discretion of the chancellor and before the complainant can have equity, he must do equity. Doing equity necessitates the payment of an adequate price for otherwise he would be a party to conduct of the executors, which would deprive the legatees under the will of their full rights. It is not necessary to hold that in every case where executors are vendors the court will refuse specific performance to the vendee, but it is incumbent upon the vendee when he seeks specific.performance, to establish the fact that he has agreed to pay a fair price. Sherman v. Wright, 49 N. Y. 227. The principle was recognized by Lord Justice Knight'Bruce and the court of appeal in England in the case of Goodwin v. Fielding, 4 De G. M. & G. 90.

We think that the vice-chancellor was right in holding that the price was inadequate. The decree is affirmed with costs.

For affirmance—The Chibe-Justice, Swayze, Trenchard, Parker, Bergen, Kalisch, Black, Katzenbach, White, Gardner, Ackerson, Van Buskirk—12.

For reversal—None.


author: Parker, J.

text:
    Charles B. Penrose, complainant-respondent, v. Absecon Land Company, Selina A. Charlton et al., defendants-appellants.
    [Argued November 24th, 1922.
    Decided March 5th, 1923.]
    1. Under the “Chancery act, 1915” (P. L., p. 18J¡), section 5, the court of chancery has power to strike out an answer which is sham or frivolous, and on motion therefor to take evidence and determine the matter in a summary way.
    2. Such practice extends to suits under the statute relative to quieting titles.to land. Gomp. Stat. p. 5899 et seq.

    3. A nonsuit in an action at law has no binding effect as res judicata.

    4. A prior decree in chancery in a suit to quiet title under the statute does not operate as res judicata except as to the land directly involved in that suit, and as to parties impleaded and before the court therein as interested in such land or their privies.
    5. In an action to quiet title under the statute, the possession of complainant at the time of filing the bill is a jurisdictional requisite, and if made an issue of fact may be considered by the appellate court as a ground of reversal without regard to technicalities of appellate procedure.
    On appeal from the court of chancery.

      .Mr. Robert E. McCarter, for the appellants.

      Mr. Clarence L. Cole, for the respondent.
   The opinion of the court was delivered by

Parker, J.

This is an appeal from a final decree of the court of chancery in a suit to quiet title under the statute (Comp. Stat. p. 5399 et seq.) based on a previous decree in the cause which directed the answers filed! by the defendants to be struck out, and that the bill be 'taken as confessed. The grounds for that decree, as recited therein, are that the title involved was settled adversely to the defendants’ claim in two^ cases in the supreme court, and also in a former case in the court of chancery (both identified by name), and that the matter was consequently res adjudícala. So far as appears by the record before us, although all the defendants joined in the notice and petition of appeal, Selina A. Charlton is the only appellant urging it to a hearing, so there should be an affirmance by default as to the other defendants.

The first point argued by counsel is that the action of the court of chancery in striking out the answers was not authorized by the statute or the ordinary practice of the court. The procedure followed was this: complainant gave notice of motion to strike out the answers, specifying the point of res judicata and that the files of the prior.cases already mentioned would be used on the argument. These files appear to have been marked as exhibits and argument to have been had thereon before the chancellor in person; whereupon the answers were struck out, as stated.

As to the propriety of the practice followed, we need search for authority no farther than section 4 of the Chancery act of 1915. P. L. 1915 p. 184, 185. That section provides that “any frivolous or sham defence may be struck out on notice, and a decree pro confesso entered, or the defendant may be allowed to defend on terms, or such other order or decree may be made in the premises as may be just.” It is suggested that there is no provision for the taking of evidence under this section, but the necessary implication of the statute is that evidence shall be taken; for the very word "sham” connotes unfounded allegations of fact, and the universal practice is to deal with sham pleadings in a summary way by affidavits or documentary evidence and without waiting for the formality of a trial. The evident intent of the statute was to assimilate the equity practice in this respect to that at common law. And the general Chancery act of 1902 (P. L. p. 545; Comp. Stat. p. 410), to which the act of 1915 is a' supplement, applies to the statute relating to qrúeting of titles, under which this suit was brought. Realty Co. of N. J. v. Burghardt, 91 N. J. Eq. 120. The practice followed below was, therefore, legally correct.

This brings us ta the question whether the decree was justified on the merits, and we conclude that it w'as not. As to the matter sub judice being res judicata by virtue of the judgments in the supreme court, the adequate answer is that both records show a nonsuit and therefore conclude nobody. Beckett v. Stone, 60 N. J. Law 23; Longstreet v. Phile, 39 Id. 63; Snowhill v. Hillyer, 9 Id. 38. And with respect to the former decree in chance^, we think it fails to meet the tests of res judicata. Mrs. Charlton was not a party to that litigation. Her predecessors in title were, but this alone is not enough, for the prior adjudication in order to be binding must have affected the same property as that now in dispute. 23 Cyc. 1253. The land in question in the former suit did not include that described in the present bill. It follows that the court of chancery was in error in summarily holding that complainant’s title as against defendant Charlton was res judicata.

There is another difficulty which we think insurmountable, as it goes to the foundation of the court’s jurisdiction in this case. Under the statute relative to quieting titles, complainant, in order to maintain the action, must be in peaceable possession of the lands, at least as against the defendant. This has been held in a multitude of decisions, which will be found in Comp. Stat. p. 5400 and 5 N. J. Dig. col. 10592 et seq., of which it is sufficient at this time to cite Sheppard v. Nixon, 43 N. J. Eq. 627. Complainant alleged this peaceable possession, and defendant in her answer specifically denied it. This put the vc-ry jurisdiction in 'issue; but the court, apparently without taking any proof on the point, either ignored it or adjudged it against the defendant. It is true that the point is not specifically presented in the petition of appeal, but it is covered thereby, -and where a fundamental matter of jurisdiction is involved, the court will ordinarily, though not necessarily, waive technicalities of procedure and consider it on appeal. The practice appears, in such cases as State v. Shupe, 88 N. J. Law 610; McMichael v. Horay, 90 Id. 142, 145; Kennedy v. Coon, 91 Id. 100; affirmed 598; State v. Belkota, 95 Id. 416, and Franklin v. Millville, 119 Atl. 29, not yet 'officially reported.

Eor the reasons above given the decree o£ the court of chancery will be reversed, .and the cause remanded with directions that it be brought to hearing in the ordinary way.

For affirmance—None.

For reversal—The Chief-Justice, Swayze, Tren chard, Parker, Bergen, Black, ICatzenbaci-i, Gardner, Ackerson, Van Buskirk—10.


author: Bergen J.

text:
    Bernard Korflage et al., respondents, v. Henry Kahrs et al., appellants.
    [Submitted December 11th, 1922.
    Decided March 5th, 1923.]
    1. Where a party seeks, in equity, the specific performance of an oral contract to transfer the capital stock of a corporation, he must prove that the minds of the parties met on all the essentials of the contract, and proof that the oral agreement w’as to be reduced to writing, and signed by the parties is cognate, but not conclusive, evidence that the oral agreement was not final, and is quite persuasive, until overcome by other facts to the contrary.
    2. The alleged oral contract provided that' the unpaid purchase price should be secured by a chattel mortgage, without stating what chattels it should embrace, or any of its terms.—Held, that it was too indefinite to justify specific performance.
    3. Where the facts justify the finding that the minds of the parties had not reached a final oral agreement, but that one party was to prepare the written contract, subject to the approval of the other, which was never executed, a case for specific performance is not made out.
    On appeal from a decree of the court of chancery.

      Messrs. Reed & Reynolds, for the respondents.

      Messrs. Osborne, Cornish & Scheclc, and William Newcorn, for the appellants.
   The opinion of the court was delivered by

Bergen J.

This hill was filed by the complainants Bernard Korflage and Bernard Mammes against Henry Kahrs, Bernard Wessels, Paul Rosen; and Emmanuel Scheck, and Henry Kahrs, Inc., a corporation of this state, for the specific performance of an oral contract for the sale of fifty shares of the- common stock of the corporation. Specific performance was decreed and the defendants have appealed. The proofs show that the defendant Kahrs was the owner of forty-eight shares of the fifty shares of the capital stock of the corporation, the other two shares being held, one each by Eosen and Scheck respectively, in order to qualify them to serve as directors of the corporation; that the business carried on by the corporation was the manufacture and sale of candy; that Mammes was an employe of the corporation under the management and control of the defendant Kahrs who was conducting the business; that Mammes went to the complainant Korflage and induced him to go into partnership with him to buy the stock, and the latter, on the 6th day of October, 1920, visited Kahrs, and claims to have entered into an oral agreement with the latter to purchase the fifty shares of stock of Kahrs’. The complainant Korflage testifies that the oral agreement was that he, Korflage, and Mammes, were to buy the business for $15,000, to pay $2,000 in cash, and assume the payment of a chattel mortgage on the property of the company, held by one Eosen, amounting to $5,800, for which Kahrs had given his notes; that the difference between the purchase price and the chattel mortgage was to be paid as follows: $2,000 in cash, and the balance in notes payable monthly of $400 each, which were to include the payment due on the chattel mortgage, that is, part was to be paid on the chattel mortgage until it was paid off; that those notes wefie to be secured by chattel mortgage; that Korflage paid $1,000 and Mammes $1,000 which made the first payment, and that complainant also furnished $300 to be used as a bank account for the corporation after the transfer; that on October 8th, the defendant Kahrs signed a receipt reading, "received from B. Korflage and B. Mammes, the sum of $2,000 on account of shares of the H. Kahrs, Inc., stock, also $300 for deposit,” which was delivered to Mammes, and by him to Korflage who kept possession of it; that the contract was to be reduced to writing, and signed in the office of a lawyer in New York city who was employed by Mr. Kahrs to draw it, and as soon as it was drawn and ready for signature, Kahrs was to notify Korflage. A day or two after this, Korflage went to Germany without signing the written agreement, and was gone for two months or over.

The story told by the defendant Kahrs relating to the oral arrangement was substantially as follows: that at the first meeting October 6th, 1920, they had a conversation about selling the stock and agreed on the price; that he was to go to his New York attorney and talk it over with him and lay out a plan to secure the unpaid balance of $7,200; that he was to talk to his lawyer about the security and the amount of payments and have the papers ready for execution at his office on Monday following, and that they were then to go over the) papers and if everything was satisfactory they would sign them, and it was that night that the $1,300 was paid by the complainant, Korflage, and $1,000 afterwards by Mam-mes; that his lawyer prepared the papers as he instructed him, and he received them on Monday, October 11th; that he telephoned at once to Mr. Korflage, in the forenoon, but did not reach him; that Korflage afterward called him on the telephone when he told him, Korflage, that the papers were there ready for him to look over, and if satisfactory to him to be signed; that Korflage did not come and sign the papers, but went to Europe, and that later Kahrs sold the stock to the defendant Wessels. The contract prepared was put in evidence and is quite different in form from the oral agreement claimed by the complainants. From this testimony it is quite apparent that the oral agreement as stated by the complainant was very different from that testified to by the defendant Kahrs. It is quite manifest that the parties contemplated a written agreement, and the agreement as understood and prepared by Kahrs did not conform to that testified to by the complainant. It is also clear that it was in the contemplation of the parties that the agreement to be made was to be reduced to writing, and that would seem to be quite necessary because the oral agreement as testified to by the complainant provided for a chattel mortgage while that testified to by the defendant did not include any chattel mortgage. Mammes, the other complainant, testified that nothing was said at the first meeting about how they were to pay the balance and that on the second night it was agreed that notes were to be given for the balance due Kahrs of about $300 or $400 a month, but that he did not remember how these notes were to be secured. We do not see how it can be said under this evidence that the minds of the parties had met in a final agreement which was to be reduced to writing, and which, when it was prepared under the direction of Kahrs, was radically different from that claimed by the complainant, at least it was not so conclusive as to justify a decree for specific performance. “If to a proposal or offer an assent be given, subject to a provision as to a contract, then the stipulation as to the contract is a term of the assent, and there is no agreement independent of the stipulation.” Wharton v. Stoutenburgh, 35 N. J. Eq. 266. And in the same case Mr. Justice Depue, speaking for this court, said that the fact that a written agreement was in ■ contemplation before the business was to be concluded was cognate, but not conclusive, evidence that the parties did not intend to bind themselves until the agreement was reduced to writing.

Vice-Chancellor Van Fleet, in Domestic Telegraph Co. v. Metropolitan Telephone Co., 39 N. J. Eq. 160, said: “Courts of equity may compel the specific performance of a contract which the parties have agreed upon and which is sufficiently certain and definite in its terms to enable the court to see what they meant, but it is entirely beyond the power of any judicial tribunal to make a contract for litigants or compel them to make a contract with each other. Ko specific performance of a contract can be decreed in equity unless the contract be actually concluded and be certain in all its parts. If the matter still rests in treaty, or if the agreement, in any material particular, be uncertain or undefined, equity will not interfere. Specific performance will not be. decreed unless it is shown that the contract has been concluded. ' The bargain must be found completely determined between the parties and its terms definitely ascertained.” The same vice-chancellor, in Potter v. Hollister, 45 N. J. Eq. 508, said: “When, however, it appears that the whole of the subject-matter about which the parties dealt is not embraced in. the letters on which the complainant relies, and their contract, for that reason, is incomplete—their minds never having come together—there a court of equity can do nothing, for it is only in cases of completed contracts, which are fair in themselves which have been fairly obtained, that equity can give relief by way of specific performance. Equity will always decline to interfere when the evidence leaves the terms of the contract in uncertaintjr, or if it be reasonably doubtful whether the contract was finally closed.” In the instant case the terms apparently were not entirely concluded but a written contract was to be drawn and approved by both parties.

What the complainant ICorfiage says about a chattel mortgage being given to secure the unpaid balance is too indefinite and uncertain to .be taken as the definite conclusion of the parties. It may well be that Korflage would have consented to the written agreement as prepared,, although different from what he testified the oral agreement was, but he never executed it. He apparently was in great haste to get away on his visit to Germany and had no further time to- complete and finish the contract. Certainly under the evidence in the present case the parties contemplated a written agreement as the fihal consummation of their bargain, and are at variance as to what the bargain really was, particularly as to the securing of the payment of the residue of the purchase price, Kahrs contending that he was to hold the stock as security while complainant contends that it was to be secured by a chattel mortgage, and in determining the truth as to this point it is quite important to bear in mind that one of the complainants, Mammies, who was present at the time when the alleged oral agreement was made, had'no recollection of anything being said about the chattel mortgage or its terms. Mr. Justice Knapp, in speaking for this court in Brown v. Brown, 33 N. J. Eq. 650, said, "the bargain or promise to be enforced, whether it exists in the form of writing or be merely' verbal, must possess, in substance, and external form, the qualities and requisites of a valid contract.”

The bargain must have been completely determined between the parties and its terms definitely ascertained, and we do not think that these parties ever reached the point where it could be said they were agreed about all the essential terms of the contract. Nor does the conduct of Mamim.es, one of the complainants and a partner, indicate he conceived that the contract had been completed, for after Korflage had left for Europe he continued to work for Kahrs as theretofore without claiming any right as partner to have the business turned over to him upon payment by him of the balance due. In other words, he seemed to act as if he were waiting for Korflage to return and sign the contract. The case does not show enough to justify a finding that the minds of the parties had definitely met and determined the terms of the contract, which is necessary to support specific performance. The complainants may have a right to have the payment made refunded but that right can be enforced at law if it exists.

Thé final decree requires the defendants, including Wessels, the subsequent purchaser, to account for the profits of the business from the 8th day of December, 1920, until the date of the decree, and that in such accounting the defendant should be credited with the unpaid balance of the purchase price under the alleged contract, and if it appeared that any balance thereof is unpaid it should be paid as the court should then direct. This, plainly, is the making of a contract by the court for the parties as to the payment of the unpaid balance, without any indication whatever as to the character of the payment, whether in cash, or as the complainant insists, by notés and a chattel mortgage, or any other way, but such as the court shall determine. That the court had no power to do, for if the contract had been concluded the rights of the parties were fixed by it.

The decree will be reversed.

For affirm an ce—N one.

For reversal—The Oi-iiep-Jtjstice, Swayze, Trenchard, Parker, Bergen, Kalisci-i, Black, Katzenbach, White, Gardner, Ackerson, Van Buskirk—12.


author: Bergen, J.

text:
    Union Trust Company, complainant-respondent, v. New Jersey Water and Light Company et al., defendants-appellants.
    [Argued November 24th, 1922.
    Decided March 5th, 1923.]
    1. A company, incorporated to supply the public with water and light, mortgaged, its property and franchises to the complainant as trustee to secure the payment of mortgagor’s bonds, payable to bearer, to the extent of $250,000, and then demised it by ¡ease, subject to the mortgage, to another, an electric, light company, which took over all the stock of the lessor from the holders, the consideration for the stock transfer being that the lessee would guarantee the payment of the principal and interest of the bonds the mortgage was given to secure, to the extent of $140,000, which was carried out by an endorsement on each bond. The 'trustee, alleging a default in some of the conditions of the mortgage, filed, a bill in the court of chancery to foreclose the mortgage in which the lessor and lessee corporations were defendants, with a separate prayer that the lessee be decreed to pay the principal and interest due on $140,000 of bonds. The court not only decreed the sale of the property, but ¡also that the lessee was personally liable on its guaranty, and awarded an execution against it as on a judgment at law.—Held, that the court of equity had no jurisdiction to enforce the guaranty in the foreclosure proceedings, the remedy at law being ample, and to that extent the decree usurped the functions of the courts of law.
    2. The mortgage contained a condition that if the mortgagor should remove any of the machinery because it was worn out, inadequate or obsolete, it should replace that machinery with other, equipment. The record showed that a portion of the machinery was taken out but not replaced, and another method introduced which substantially deprived the lessor of the ability to use the property as it had been used at the time the lease mentioned was made.—Held, that the condition was broken and that the mortgagee had the right to elect that the entire principal should mature.
    On appeal from a decree of tire court of chancery.

      Messrs. Durand. Ivins .& Carton and Mr. Robert H. McCarter, for the appellants.

      Mr. Lindley M. Garrison, for the respondent.
   The opinion of the court was delivered by '

Bergen, J.

The New Jersey Water and Light Company gave a mortgage to the complainant to secure the payment of certain bonds to mature in 1924, the amount outstanding being $140,-000.

The mortgage embraces the property of the New Jersey Water and Light Company, its franchises, and other assets, which the mortgagor then owned, or should thereafter acquire. Subsequently, the other defendant, Atlantic Coast Electric Light Company, leased the property and franchises from the mortgagor, bought all its capital stock, and now operates the leased company in connection with its own, an electric company. The stock of the water company was transferred by Samuel Ludlow, Jr., who owned or controlled the bonds and stock of the mortgagor company, to the Atlantic Coast Electric Light Company, and in consideration of that transfer the latter guaranteed

“unto the said party of the first part, his heirs, executors, administrators and assigns, the payment of the principal and interest on $140,000 of bonds of the said New Jersey Water and Light Company; such guaranty to be endorsed on each and all of said bonds in such form as is satisfactory to the party of the first part

this endorsement was made and thereby an independent contract made with each bond holder. The mortgage contained a condition that if the mortgagor sold any of the mortgaged property it should replace it with machinery of substantially the same kind, and capable of being used with, at least equal facility for the same purpose as that disposed of. The record shows that the Atlantic Coast Company removed a certain portion of the machinery covered by the mortgage, and has not replaced it, and because of this default the complainant elected to have the entire mortgage debt mature, as it had a right, if the condition relating to the replacing of the machinery taken out was violated, and gave notice of that election to the defendants, and the machinery not being restored it filed this bill to foreclose the mortgage. The vice-chancellor advised, that complainant was entitled to a decree of foreclosure; that it be decreed that the Atlantic Coast Electric Light Company pay the bonds according to its guaranty, and that a counsel fee of $5,000 be paid by the defendants, including the Atlantic Coast Electric Light Company to the complainant. Prom this decree the defendants have appealed. It is urged in support of the appeal that there was no such violation of the conditions relating to the removal of machinery as entitled the complainant to elect to have the entire mortgage debt due, because the machinery sold and removed, was old and obsolete, and that therefore there was1 no- substantial violation of thatl condition. The condition in the mortgage relating to the matter under consideration reads:

“The company, while in possession of the mortgaged premises, shall have full power from time to time, in its discretion, and without interference by the trustee, to dispose of any portion of the equipment, machinery and implements at any time held subject to the lien of this indenture, which may have become worn out, obsolete or otherwise unfit for such use; and the company agrees to replace the same by new equipment, machinery or implements, which shall without further conveyance be and become subject to the lien of this indenture.”

The mortgage also provided that in' ease of default in the performance of any covenant or agreement therein contained, which, shall continue for a period of ninety days after written notice thereof, the trustee may declare the principal of all said bonds then outstanding to be due and payable immediately. These requirements were complied with, and the default continued for more than ninety days. It appears from this record that in the year 1915, after the lessee had taken possession, it concluded that the equipment for generating electricity was inadequate and out of date, and that it ought to be disposed of, and some other method of obtaining electricity substituted, and thereupon it removed nearly all the machinery, and instead of substituting new electrical machinery for that which, it had sold it connected the remaining machinery of the lessor company with their own, and by putting in a transfanner furnished electricity generated in its own station, and merely passed ‘it through the remaining machinery of the lessor company. The result of this was to deprive the property of the mortgagor company of all, or nearly all, its electrical equipment.

The defendant’s answer to this is that the electrical equipment disposed of was not replaced because the Atlantic Coast Company made certain improvements to the buildings and machinery for the distribution of water of the New Jersey Water and Light Company, but that is no answer to the broken condition, for it is quite clear that the disposition of the electric equipment is not replaced by the installation of equipment for the distribution of water. We are of the opinion that the removal of the equipment, even if it was old, required the restoration of the kind of machinery taken out, capable of doing the work as theretofore, and because of that default, the complainant had a'right to elect that the principal sum of the mortgage had matured. The next point which the appellants make is that after the default was known to the complainant, it continued to accept interest on the mortgage for five years before declaring the default and the maturing of the principal. This, in our opinion, was not a waiver of the default, because the defendants were bound to pay the interest even if they had broken one of the conditions of the mortgage. Therefore so much of this decree as adjudges the foreclosure of the mortgage should be affirmed. But the decree goes further, for it not only decreed the foreclosure and sale of the property to satisfy the mortgage debt, but made a specific decree against the Atlantic Coast Company, requiring it, within ten days after service of a copy of the decree and the taxed costs, to pay to the complainant the sum of $140,000 with interest, costs, and a counsel fee of $5,000 and in default that execution issue in accordance with the rules and practice of the court., and that all money raised by virtue of said execution, and received by the complainant, be credited on the amount of mortgage debt. This we think is erroneous because it is nothing more than the collection of a claim enforceable at law over which equity has no jurisdiction. The guaranty was a new and different contract, and is clearly enforceable, if at all, at law. It is argued by the appellant that the last question considered was not within the petition of appeal. We are inclined to think that one of the grounds of appeal is that the decree adjudges that the Atlantic Coast Electric Light Company shall pay the principal of the bonds with interest, and in default thereof an execution! issue, which plainly raised a question whether, that part of the decree we have dealt with was erroneous or not, but aside from this the question relates to the jurisdiction of the court of chancery and therefore is one of those question's which an appellate court may, and properly should, take notice of. We also think that so much of the decree as imposes the payment of counsel fees on the Atlantic Coast Electric Light Company is erroneous. That company did not give the mortgage, but was bound to defend itself against the prayer of the bill charging it with liability on its guaranty, and had it been successful in that, as we hold it should, in the court below, it ought not b.e charged with counsel fees allowed on the foreclosure of the mortgage. The decree of foreclosure will be affirmed with the modification indicated, which will relieve the Atlantic Coast Electric Light Company from so much of the decree against it as adjudges it liable on its guaranty of the payment of the bonds, and also from the payment of counsel fees. With these modifications the decree will be affirmed.'

For affirmance—None.

For reversal—None.

For modification—The Chief-Justice, Swayze, Teen-chard, Parker, Bergen, Black, Katzenbaci-i, Gardner, Ackerson—9.


author: Kalis ch, J.

text:
    Henry Kastens, complainant-respondent, v. William Ruland and Mathilda Ruland, defendants-appellants.
    [Submitted November term, 1922.
    Decided March 5th, 1923.]
    Where an option to purchase a property was given “at any time within two years from the date hereof at a price to be agreed upon, but not to exceed the sum of $16,500,” and before the expiration thereof the owner was tendered a sum which, with the mortgages upon the property, equaled the sum of $16,500, w'hich was refused, and later, and before the expiration of the time named in the option, the complainant served a written notice upon the defendant demanding a deed and declaring himself ready and willing to pay the sum of $16,500 therefor, such option is not indefinite, and, although the' first tender was not proper, but as it was not refused on that ground, but because the owners had determined not to sell, and the further offer in writing to pay the full amount in cash was ignored, the complainant is entitled to a decree for specific performance.
    On appeal from a decree a.dvised by Vice-Chancellor Stevenson.

      Mr. Robert Carey, for the appellants.

      Messrs. McDermott, Dnright & Carpenter and Mr. Otto Venino, Jr., for the respondent.
   The opinion of the court was delivered by

Kalis ch, J.

A bill for specific performance was filed by the complainant-respondent, in the court below, based upon an option .contained in a, written agreement entered into between him and the defendants-appellants, whereby the latter agreed to sell to the former “that certain butcher store, located at No. 637 Bergenline Avenue, in the town of West New York, New Jersey, for the sum of three thousand dollars ($3,000),” to be paid in installments; and it was further agreed that “the sale should include all stock of fixtures and all other paraphernalia contained in said business,” &e. The option was as follows:

“The party of the first part hereby further agrees to grant to the said party of the second part the first and prior option of purchasing the said premises located as above set forth, at any time within two (2) years from the date hereof, at a price to be agreed upon, but not to exceed the sum of sixteen thousand five hundred dollars.”

The agreement bears date May 28th, 1919.

The undisputed facts are that on June 2d, 1919, the complainant having completed the purchase of the butcher business entered into possession of the entire premises designated as No. 637 Bergenline avenue, under a written lease for the term of three years, from June 1st, 1919, as tenant of the appellants. About two months before the expiration of the option, the respondent having ascertained by a search of the title to the premises that the property was subject to a first mortgage of $7,000 and a second mortgage of $6,000, aggregating $13,000, he made a tender to the defendants of $4,000 in cash and offered to purchase the premises mentioned in the option for $16,500. The appellants not only refused the offer but refused to sell the property.

Later, but before the expiration of the option, the complainant served a written notice upon the defendants, availing himself of the option to purchase the premises, demanded a proper deed conveying a good title free and clear of all liens and encroachments, and declared himself ready and willing to pay $16,500 in cash therefor. The defendants ignored the notice, and, thereupon, before the expiration of the option, the complainant filed his bill for specific performance.

The learned vice-chancellor on these state of facts decreed specific performance, in which result we concur.

The first two grounds of appeal relied on -by counsel of appellants for a reversal of the decree are that the option is too uncertain and indefinite to be enforced; in that it is not complete in all its parts, as some of its terms must be left to be settled by future negotiations.

This contention lacks substance. It is not claimed that the premises to be conveyed are not sufficiently designated, but is argued that by the terms of the option the parties thereto contemplated the entering into another and more definite agreement in the future should the defendants elect to sell and the complainant elect to purchase, at which time the terms on which the property should be sold was to be definitely decided. But this is mere and unwarrantable conjecture. The price to be paid for the property was “not to exceed.$16,500.” This was a definite fixing of the price to be paid by the complainant, if at any time within the life of the option he exercised his right to purchase the property.

The fact that the premises were subject to two mortgages, aggregating $13,000, and of which no mention was made in the option and how they were to be dealt with, does not render the option indefinite, because, under a plain legal rule of construction, it must be held that the price of $16,500, fixed for the sale of the property, without stating any terms, meant cash.

It is further urged that no proper tender was made by the complainant.

The defendants’ equity in the property in question was $3,500. The complainant tendered $4,000 in cash to the defendants for their equity, which they refused to accept. We do not think the tender was proper.

While the sum tendered might have been sufficient to pay for the defendants’ equity in the property, it would not be a good and sufficient tender if the defendants were liable on the mortgage bonds. But it appears that the tender was not refused by the defendants on any such ground, for, according to the testimony, their refusal to accept the money and give a deed for the property was the result of a determination on their part not to sell. Whether, under such circumstances, there was a waiver of any further tender on part of the complainant is not necessary to decide, for it appears that before the expiration of the option the complainant gave a written notice to defendants of his exercise of the option and of his readiness and willingness to pay $16,500 in cash for the premises, with the request that the defendants notify him in writing of the time and place, when and where the deed will be ready for delivery and the encumbrances discharged and payment made to the defendants. The defendants paid no heed to this notice, and the only reasonable inference is that they did not intend to carry out the terms of the option. Besides all this the defendants in their answer nowhere allege absence of a proper tender. While a tender could only be properly made by the production of the money equivalent to the amount required to be paid, this formality may be waived by the conduct of the parties. We think there was evidence of such conduct on part of the defendants as to amount to a waiver of formal tender.

The only other objection urged against the validity of the decree is that the complainant in demanding a deed free of encroachments, when he knew that the premises were encumbered, was demanding the defendants to perform an impossibility.

There was no such defence interposed. There was no testimony tending to show that there was any encroachment upon the property. In fact, from aught that appears there is none.

The decree is affirmed, with costs.

For affirmance—The Chancellor, Swayze, Trenchard, Parker, Bergen, Kalisch, Black, Katzenbach, White, Gardner, Ackbrson, Yan Buskirk—12.

For reversal—None.


author: Kalisch, J.

text:
    Mary L. Githens, administratrix of the estate of George M. Githens, deceased, complainant-respondent, v. The Atlantic Safe Deposit and Trust Company, executor of Albert M. Jordan, defendant-appellant.
    [Decided March 5th, 1923.]
    1. The court of chancery will not interfere with the ordinary jurisdiction of probate courts in the settlement of the accounts of executors and administrators. Filley v. Van Dyke, 75 N. J. Eq. 571, approved and followed.
    2. Where a claimant attempts by a bill in equity to enforce a claim for deficiency resulting from the foreclosure of a mortgage, the payment of which was guaranteed by the defendant’s testator, which claim was not presented under oath to the defendant’s executor until after the time named in the rule barring creditors had expired, and where suit was brought on the deficiency claim against the executor, and on plea of the bar of the statute, was discontinued, the bill should be dismissed, as the legal status of the suit was destroyed by the discontinuance of the action, and also because the complainant has ample remedy under 3 Comp. Stat. p, 3836.

    On appeal from a decree advised by Vice-Chancellor Learning.

      Mr. ’William M. Clevenger, for the appellant.
    No appearance for the respondent.
   The opinion of the court was delivered by

Kalisch, J.

The sole question which this appeal presents for decision is whether the complainant’s bill of complaint should have been dismissed, for the reason that there were no circumstances to show special cause for the interference of the court below under the well-settled rule that a “court of chancery will not interfere with the ordinary jurisdiction of the probate courts in the settlement of the accounts of executors and administrators.” Filley v. Van Dyke, 75 N. J. Eq. 571.

The controversy in this case arises out of an attempt by the complainant through the aid of the court of chancery to enforce a deficiency claim of $5,119.78, growing out of the foreclosure of a mortgage against the estate of deceased guarantor of the mortgage, after an order was entered in the orphans court barring creditors.

The grounds of the complainant’s bill upon which relief was sought in the court below, in substance, are these: The defendant’s intestate had guaranteed the payment of principal and interest of a certaiii bond and mortgage of which the complainant held title, as administratrix of her husband; that on June 21st, 1917, the principal debt with accrued interest being due and payable, the complainant gave notice to the defendant executor that she intended to enforce the payment of the mortgage by foreclosure proceedings and that she intended to hold the estate liable for any deficiency which might result at said sale; that on August 25th, 1917, there was entered in the orphans court a final decree barring all creditors whose claims were unpresented; that on May 1st, 1918, after a sale under the mortgage’there was a deficiency of $5,119.78; because liability was contingent upon there being a deficiency, the latter was unascertainable till a sale was had; that she presented no claim or demand for the debt verified, as required by the statute, till November 16th, 1917, long after the order barring creditors was entered; that the defendant pleaded the bar of the statute, and that the action was discontinued; that, although more than one year has elapsed, the executor has failed to make a final settlement of its account as such executor touching the value and character of the assets of the estate and that the estate is solvent, and upon the settlement thereof there will remain in the hands of the executor for distribution a considerable surplus, more than sufficient in amount to satisfy in full all creditors of the intestate, -whose debts and claims are barred by tlie decree of August 25th, 1917, and to which surplus she is entitled a ratable proportion, &e., and, being without adequate remedy at law, she prays for a discovery by the defendant of the assets of the estate, its nature, character and value, and the creditors whose claims were presented prior to August 25th, 1917; that the defendant settle its accounts as executor, &c.

As to the averment in the bill that there was unnecessary delay in the settlement of the estate, the learned vice-chancellor found adversely to .the complainant. He further found that evidence failed to disclose the existence of assets, the nature of which required the aid of a court of equity to reach them, or “the existence of any circumstances rendering the settlement of the estate inappropriate in the court where that settlement is being made,” and that there was nothing appearing to render the further settlement of the estate in a court of equity, either appropriate or advantageous. He further found that the condition of the estate was fully disclosed, “including all assets and'liabilities.” He concludes, that because it is impossible to determine with certainty whether the estate .is solvent the bill should be held open, in anticipation of something occurring in the future which might need the intervention of. a court of equity.

"VVe think the bill should have been dismissed. In the first place, it is difficult to comprehend upon what equitable principle the complainant was entitled to invoke the aid of the court of chancery. By her own showing she had no legal status, for the reason that she destroyed it, by discontinuing her action against the executor, the legal effect of which was to render her claim as one unpresented. She was therefore in no legal position to question the action of the executor in failing to file an account, or to inquire as to the assets of the estate, or as to its solvency, with any or all of which matters she could not be concerned, unless she had an active claim presented against the estate. This she, undisputably, did not have. She presented no claim under sections 72, 73 or 74 of the Orphans Court act. 3 Comp. Stat. p. 3836.

Moreover, the complainant has-a complete remedy under these sections, the provisions of which are ample to provide for the liquidation of a claim which is presented.after a decree barring creditors.

The decree will be reversed, to the end that the bill should be dismissed, with costs.

For affirmance—None.

For reversal—The Chiee-Justioe, Swayze, Trenchard, Parker, Bergen, Kalis ch, Black, Katzenbach, Gardner, Van Buskirk—10.