text:
    Thomas E. French et al., receivers of State Mutual Building and Loan Association, v. E. Babtine Johnson et al.
    [Heard March 10th, 1910.
    Determined May 10th, 1910.]
    1. A borrowing' member of a building and loan association who executes a mortgage and pledges his shares to the association as security for the money borrowed is not entitled to credit on his mortgage debt for the premiums paid by him, although no affirmative action had been taken by the association in the exercise of its option to declare the entire mortgage debt due by reason of a default of such member in the payment of interest on the mortgage pursuant to a stipulation therein in that behalf contained, prior to the suspension of business of such association and the appointment of a receiver.
    2. Such borrowing member is not entitled to stand on the footing of a non-defaulting mortgagor who has lost his rights to the benefits of the consummation of the building association scheme solely by reason of the association’s insolvency.
    3. A delinquent borrower against whom a default has been declared, and one similarly delinquent against whom no default has been declared, occupy much the same position so far as their rights are concerned.

      On exceptions to master’s report.

      Mr. Thomas E. French and Mr. George J. Bergen, for the receivers.

      Mr. Eli H. Chandler, for the exceptants.
   Leaming, V. C.

Oomplainants are receivers of an insolvent building and loan association. Defendant is a borrowing member who has executed a mortgage and pledged his shares to the association as security for the payment of the money so borrowed. The present suit is for the foreclosure of that mortgage. The association ceased business and went into voluntary liquidation in April, 1907, pursuant to the act of 1904. P. L. 1904. p. 44. It was subsequently determined that the association was at that time insolvent and receivers in insolvency were appointed in the place of the trustees in liquidation. The bond secured by the mortgage now in question contains a clause to the effect that if default should be made by mortgagor in the payment of interest, premiums or fines for thirty days after the same should become payable,

“the whole principal debt aforesaid should, at the option of the said The State Mutual Building and Loan Association of New Jersey, its successors or assigns, become due and payable immediately, and payment of sáid principal debt, and all interest thereon, might be enforced and recovered at once.”

At the date of suspension 'of business by the association interest was in default on defendant’s mortgage for a period in excess of the period above referred to; but it is now claimed by defendant that no affirmative action had been taken by the association whereby it exercised its option to declare the entire mortgage debt due by reason of the default. The question now presented is whether defendant is entitled to credit on his mortgage debt for the premiums which have been paid by him. In the ease In re State Mutual Building and Loan Association, 74 N. J. Eq. (4 Buch.) 807), it was determined by the court of errors and appeals of this state that a mortgagor of that association was not entitled to credit for premiums paid in a case in which the mortgage was due by its terms at the time of suspension of business of the association. That case was first heard before me in this court upon the theory that the association had not exercised its option to declare the principal of the mortgage due. It appears, however, that the petition filed in that case contained an averment to the contrary, and by a stipulation in the ease the facts stated in the petition were admitted. Eor that reason it is now urged that the court of errors and appeals has expressed no opinion touching a case in which the option to declare the mortgage due had not been exercised by the. association at the date of its suspension of business.

The opinion of the appellate court in the case referred to, defines with great clearness the theory upon which a non-defaulting mortgagor becomes entitled to credit, in the event of insolvency, for premiums theretofore paid by him. It is there pointed out that his premiums are paid in reliance upon the consummation of a plan whereby his shares shall mature, and at their maturity shall discharge his mortgage indebtedness. As insolvency of the association operates to defeat the consummation of the scheme, in the absence of any contract contemplating that contingency equitable considerations arise which entitle him to a return of such premiums as he may have paid. As to mortgages due and payable at the time business is suspended, the opinion referred to states: “As to mortgage debts, therefore, that were thus due by the default of the debtor and collectible by the association while it was a going concern, the appellants, as receivers, stand in precisely the same situation as the directors of the association stood when the debts fell due. As to such no equitable rule is to be applied, f°r the simple reason that a mere breach of a legal contract, nothing more appearing, gives rise to no equitable consideration of any sort.”

With these accepted principles in view, the rights and liabilities of defendant must be determined.

Eor over four years defendant had been behind in his payments to an amount which entitled the association to exercise its option to declare the mortgage due and payable.' During all of that time the association was privileged to exercise that option or to refrain from exercising it. The latter course was adopted, and defendant was permitted to make payments on account from time to time during all of tliat period. During that period defendant made payments to the association on account to the amount of about four thousand dollars, and one-half of the payments so made was by the association applied to premiums. These payments were necessarily made by defendant and accepted by the association in the ever present hope upon the part of both that defendant would eventually discharge all arrearages. The realization of that hope was rendered impossible by the suspension of business by the association. The suspension of business rendered it impossible for defendant to exercise the privilege, which he possessed up to that time, to make payment of the amount of interest, dues and premiums, which heothen owed, and in like manner rendered it impossible for the association to exercise the power, which it possessed up to that time, to formally declare the principal of the mortgage due. The condition thus arising from the insolvency and suspension of business was one which the contractual relations of the parties did not directly anticipate or provide for, and this mortgage, like all other similar mortgages held by the association, whether the mortgagors were behind in the payments or not, was matured by force of the unconventional conditions which thus arise.

At the time I signed the decree (In re State Mutual, supra) I was impressed that conditions of this nature gave rise to equitable considerations in behalf of a delinquent mortgagor which should be operative to entitle him to a credit for the premiums paid. But a present consideration of the equity suggested, in the light of the decision of the court of errors and appeals already referred to, leads me to the conclusion that defendant cannot, upon sound equitable principles, be given the status of a non-defaulting mortgagor who has lost his right to the benefits of the consummation of the building association scheme solely by reason of the insolvency of the association. At the time of the suspension of business defendant had broken the stipulation of his contract, and his privilege to continue to enjoy the benefits of the building association scheme was wholly dependent upon the sufferance of the association. He had no legal right to demand the continuance of that sufferance. While technically the mortgage debt was not collectible unless or until the association should cease extending such sufferance, that is, should treat the mortgage debt as due, the substance of the situation was that the suspension of business did no more than to render it impossible for the association to continue to extend to defendant favors which the association was under no contractual obligation to extend and which defendant had no contractual right to demand. It is not even claimed that at the time of suspension of business of the association defendant entertained a purpose to presently remove himself from the delinquent class. The loss by'defendant of the mere possibility of these continued favors upon the part of the association, cannot be appropriately regarded as the loss of a substantial right; and cannot be properly classed with the loss of a non-defaulting borrower who has been denied important contractual rights of a substantial nature solely by reason of a failure of the general scheme. The loss which the latter suffers by reason of the suspension of business is that of a substantial and valuable contractual right: the loss complained of by defendant in this case is the loss of the privilege of future indulgence upon the part of the association. Such, indulgences defendant could reasonably hope for, but could not require. A delinquent borrower against whom a default has been declared, and one similarly delinquent against whom no default has been declared, occupy much the same position so far as their rights are concerned. The association may, at will; reinstate the one or continue to extend indulgence to the other. These possible privileges of a delinquent borrower are lost by the suspension of business. While defendant’s mortgage was not technically due by its terms at the date of suspension of business, I am unable to conclude that that fact can be appropriately deemed operative to create an equity in his behalf which will entitle him to a return of the premiums by him paid.

It also appears that the present defendant mortgagor was a defendant in the case already referred to, and in that case, as stated, stipulated that the association had exercised its option to declare the mortgage now in question due. With that issuable fact regularly adjudicated in the case referred to, I think defendant cannot be permitted in this case to assert that the association had not so exercised its option.

I am also satisfied that the master’s report of the amount due is correctly stated in all other particulars.

I will advise an order overruling the exceptions to the master’s report.


source: Caselaw Access Project

author: Leaming, V. C.

license: Public Domain

text:
    Howard B. French et al., executors of Samuel H. French, deceased, v. The City of Camden.
    [Heard March 24th, 1910.
    Determined May 12th, 1910.]
    Upon an application for a preliminary injunction to restrain a law court from confirming a commissioners’ report assessing benefits for street improvements, upon the ground that such proposed assessment was unlawful, and, if confirmed, would create a cloud upon complainant’s title, (1) because the act under which the assessment was being made was unlawful, and (2) such proposed assessments were for improvements in a turnpike road, and took coihplainants’ property without due process of law — Held, that in view of the express decisions of the supreme court, opposed to the contentions of the complainants on both'grounds, they are not entitled to such preliminary relief.
    On bill for injunction to restrain city from making a street improvement assessment.

      Mr. Edward A. Armstrong, for the complainants.

      Mr. Edwin Q. Q. Blealcly and Mr. Wilfred B. Wolcott, for the defendant.
   Leaming, V. C.

Complainant seeks a preliminary injunction against defendant city which shall be operative to prevent the court of common pleas from confirming a report of certain commissioners ■which, have been appointed by that court to assess benefits for certain street improvements in defendant city. The theory of complainants’ bill is that the proposed assessment is unlawful, and, if confirmed by the court of common pleas, will create a cloud upon title of complainants’ land.

Complainant asserts that the proposed assessment is unlawful because the act under which the assessment is being made ( P. L. 1898 p. 466) is unconstitutional, in that — first, the assessment authorized by the act is a tax, and the act originated in the senate; second, the title of the act is defective, in that the object of the act is not sufficiently expressed in its title; third, the proposed assessment is for improvements made in a turnpike road, and takes complainants’ property without due process of law, in that it in effect gives it to the turnpike company.

The views which I feel obliged to adopt touching the several objections made by complainant to the legality of the pending assessment proceedings, renders it unnecessary to here determine whether this court has jurisdiction to interrupt special officers in the performance of purely legal duties of the nature stated, for the purpose of granting preventive relief against acts which, if performed, may be reviewed and, if illegal, corrected by legal tribunals.

In Manufacturers’ Land and Improvement Co. v. City of Camden, 73 N. J. Law (44 Vr.) 263, the supreme court of this state reviewed an assessment which had been made under the same statute which is now in question. On petition for rehearing in that case it was urged that the statute was unconstitutional because the object of the act was not sufficiently expressed in its title, and also because the act was for raising revenue and should have originated in the house. In the opinion filed (not yet reported) that court held the title sufficient, and also held that the act was not a bill for raising revenue as contemplated by the constitution.

The objection here made that the public street here in question is also a turnpike road was before the supreme court in State v. City of New Brunswick, 30 N. J. Law (1 Vr.) 395. It was there held that the city’s control over its highways enabled it to improve the street and assess the benefit to adjacent land owners, notwithstanding the highway was occupied and operated by a turnpike company. On appeal a similar view was adopted. 32 N. J. Law (3 Vr.) 548.

In view of the decisions referred to, it is manifest that complainants’ rights cannot be here regarded as sufficiently clear to warrant preliminary relief.


author: Howell, V. C.

text:
    Gideon L. Stout, executor, &c., v. Margaret S. Cook et al.
    [Decided February 11th, 1910.]
    1. The words of a will should generally be given their common and ordinary meaning, unless there is something in the text which requires that a different meaning be given them, but technical rules and common and ordinary meaning may be disregarded if another meaning is observable from the language employed.
    2. Testator directed the residue of his estate to be divided among his children, the shares of the daughters to be held in trust during their lives, and, on the death of either daughter, her share to go to her child or children, “and if such daughter shall leave no child, such share shall .be esteemed as part of the residue of my estate, the interest and profits of which to be paid in equal parts to my surviving children.” — Held, that the words “surviving children” refer to such persons as answer the description at the death of the daughter, the date of distribution, and not at the death of testator.
    3. In the construction of wills, the court must ascertain the intention of the testator as expressed by the words used.
    4. Testator directed the residue of his estate to be divided into the number of shares that he had children, that the share of each son be given to him absolutely, but that the shares of the daughters be invested for their benefit during their lives, and that on the death of either daughter without leaving any child her share “shall be esteemed as part of the residue of the estate, the interest and profits of which to be paid equally to my surviving children.” — Held, that the word “surviving” should not be read literally, or changed into “other,” but should be held to mean stirpital succession, so that the share of a daughter deceased without leaving a child would fall back into the residue to be distributed according to the existing stwpes.

    5. Where there was no law in the state for the adoption of children at the time testator made his will, he could not have had in mind the subsequently adopted child of one of his children in directing that the “child or children” take the parent’s share of the residuary estate on distribution under certain conditions.
    6. Act of 1877 (P. L. 7877 p. 126 § If), inventing an adopted child with the right of inheritance from the adopting parent, does not create in such child capacity to take the share which the deceased adopting parent would have taken under such will, if living.
    On final bearing on bill, answer, replication and proofs.

      Mr. Edward M. Qolie, for the complainant.

      Mr. John R. Hardin {Mr. Joseph D. Jjee, of the Yew York bar, with him on'the brief), for Margaret S. Cook and others.

      Mr. William J. Magie, for Thomas H. Stout and others.

      Mr. Marie A. Sullivan {Mr. Robert II. Griffin, of the Yew York bar, with him on the brief), for Audrey Osborn.
   Howell, V. C.

The bill in this case is filed to obtain a construction of the will of John W. Stout, who died in 1861. He left a widow and seven children, among whom was his daughter Augusta, who married one Appleton and who died in December, 1907, without issue. At the time of her death the children of the testator who were living were Gideon L. Stout, one of the complainants, and Thomas Stout, a defendant. The four other children were dead, one of them, Jacob, having died without ever having had issue, but leaving the defendant, Audrey Osborn, whom he had adopted as his daughter in accordance with the laws of the State of Yew York in 1900. Amelia, Margaret and Abby, three of the children, died, leaving issue, all of whom were made parties defendant to this suit. The litigation arises over the disposition of the share of the testator’s estate, the life estate in which had been enjoyed by Mrs. Appleton. On her death without issue three sets of claimants to the fund have arisen — first her two brothers who actually survived her; secondthe issue of her three sisters who predeceased her, ahd third,, Audrey Osborn, who claims to take as the adopted daughter of Jacob Stout, one of the testator’s children.

The paragraph of the will which causes the dispute is as follows :

“Fifth. The whole residue of my estate I order and direct shall be divided into seven equal parts or shares, and to each of my sons, to wit, Jacob, Thomas & Gideon Lee I give and bequeath absolutely and without condition or qualification one full part or share and the remaining four shares of the residue of my estate, I order and direct my executors the survivors or survivor of them, to invest at interest on good landed security, and the interest and profits arising therefrom I direct to be paid from time to time as the same may be received in equal shares or pro? portions to each of my four daughters, (their respective receipts to be a full discharge for the, same) during their respective natural lives, and on the death of either of my said daughters I give and bequeath her share of the said residue of my estate to the child or children of such deceased daughter in equal shares or proportions; and in case such deceased daughter shall leave no child or children such share shall be esteemed as part of the residue of my said estate the interest and profits of which, to be paid in equal proportions to my surviving children during their natural lives, and on their respective deaths,''the principal to be paid to the child or children of such deceased child; such child or children to take the parent’s share, and I do order and direct that any advancements made or moneys loaned to either of my sons in law, and for which I have or hold any evidence in writing, shall be deemed and taken as advancements made to'my daughter who is the wife of such son in law, and shall be charged to and deducted from such daughter’s share or proportion of my estate herein bequeathed to her.”

It will be observed that the general scheme of the will was to provide for the descendants of the testator not equally as amongst the children who survived him, but equally among the stirpes or stocks of his issue. As to his sons he provided for an immediate vesting of their shares, and for immediate possession thereof. As to the daughters there was a settlement of an equal share upon them during the terms of their respective lives, with remainder to their issue and a devise over in default of issue. The devise over is to those persons whom the testator had in mind when he used the term "surviving children” and eventually the issue of such surviving children per stirpes. The problem is to determine who were meant by the testator when he used the term “surviving children."

An examination of the decided cases shows that the phrase or its equivalent has been very often used in wills and has been very often the subject of litigation. One of the English judges remarked that the cases on the subject were so numerous and so conflicting that he did not think the wit of man could reconcile them. This is owing to the fact that it is difficult to frame a general rule according to which all cases involving the construction of particular words and phrases' may be decided. There is sufficient variation in the wording of wills to account for the different manner in which the words which are in dispute in this case have been construed. Lord Halsbury said in Inderwick v. Tatchell (1903), A. C. 120; 72 L. J. Ch. 393: “I confess I approach the interpretation of a will with the greatest possible hesitation as to. adopting any supposed fixed rule for its construction. If I can read the language of the instrument in its ordinary and natural sense I do not want any rule of construction; and if I cannot, then I think one must read the whole instrument as well as one can, and conclude what really its effect is intended to be by looking at the instrument as a whole. * * * I so far go with the contention of the appellants here, that I think it quite possible — nay, I may go further and say I think it is probable — that if the testator had contemplated the particular event that has happened in this case he would have provided for it. But with that single observation I am not at liberty, because an event has happened which I think has not been provided for, to conjecture what the testator would have provided if he had thought of it beforehand. I am not at liberty to disregard the application of the ordinary rule of construction of every document — namely;- that you must look at the whole document, and, if you can, you must read the words according to their natural and reasonable meaning."

I may say in passing that this idea was given expression to in a case in'which the facts were quite similar to those in tire case in hand, the prime difference being that the devise over was to “their then surviving brothers and sisters."

■' Notwithstanding the fact that each will in the matter of construction must stand upon its own footing, many attempts ■have been made by- the courts and text writers to formulate a rule which shorild have a more or less general application touching the construction of the words in question. It must be admitted that generally these words must be given their common ordinary meaning unless there is something in the text which requires that a different meaning should be given to them. This is so held in Holcomb v. Lake, 24 N. J. Law (4 Zab.) 686, and in.other cases cited in the briefs before me, and also so held very strongly in the several opinions delivered in the ease of Inderwick v. Tatchell above cited. I think it is equally clear that the words in question refer to such persons as shall answer the description at the time of the distribution of the fund and not at the 'death of the testator.

Ashurst v. Potter, 53 N. J. Eq. (8 Dick.) 608; Slack v. Bird, 23 N. J. Eq. (8 C. E. Gr.) 238; Dutton v. Paugh, 45 N. J. Eq. (18 Stew.) 426, affirmed, sub nom.; Jones v. Jones, 46 N. J. Eq. (1 Dick.) 554. The New York and Massachusetts cases are not a safe guide on this point. They seem to favor another view. See, also, Cripps v. Wolcott, 4 Mad. 12, and In re Duke, 16 C. D. 112.

We are, therefore, to inquire who were the persons who answer the description of surviving children at the date of the death of Mrs. Appleton. Mr. Jarman (3 Jarm. Wills 547) states a rule of construction which Mrs. Cook and those belonging to her class urge should be applied to this case. It is expressed in these words:

“Where a gift to the ‘survivors’ of several legatees, limited to take place on a certain event (as the death of any of them under age or without issue), is followed by a gift over, not if there should be no survivor at the time the event happens, but if that event should happen to every one of the legatees; (as if all die under age or without issue) ‘survivors’ is read ‘others.’ From the contingent gift over of the whole in a mass it is inferred that the testator meant .the legatees to take it amongst them in every other contingency which can only be secured by means of cross limitations between them,”

citing for his authority Doe v. Wainewright, 5 T. R. 427; Cole v. Sewell, 4 D. & W. 1; 2 H. L. Cas. 186, and Wilmot v. Wil mot, 8 Ves. 10. A much better expressed statement is found in 2 Wms. Ex. 1332. The writer says:

“The word ‘surviving’ has been construed ‘other’ to give effect to the apparent intention. Thus where a fund is given between a class or number of persons as tenants in common for life, with interest in the nature of remainders to their children respectively, and a valid provision is made that in the event of the death and failure of issue of any of the original takers, the share of the original taker or takers so circumstanced shall go to the survivors or survivor of them, the words survivors or survivor may, if the scheme of the will requires it, he considered as an expression of contrast used for. the purpose of distinguishing the takers not so circumstanced, and therefore as meaning ‘others or other.’ But the word ‘survivor’ must receive its natural construction and not be read as meaning ‘other’ unless the nature of the disposition itself, or the context of the will, renders a departure necessary to effectuate the apparent intention of the testator.”

Watson, in his Compendium of Equity (vol. 2) p. 1222, extracts this from the eases. When following the limitation or gift to the survivor or survivors, and if any should die without issue or without attaining the age prescribed, there is an ultimate gift over if all die without issue or without attaining the prescribed age, survivors or survivor will be construed as others or other, letting in the issue of deceased children to share from the surviving children.

In Waite v. Littlewood (1873), 8 Ch. App. 70; 42 L. J. Ch. 216, the testator directed one-sixth of a fund to be held in trust for each of his six daughters for life with remainder for the benefit of their respective children, with a proviso that if any of them should die without leaving issue who should live to attain a vested interest, her share should be in trust for his surviving daughters in equal shares during their respective lives with remainder for their respective children per stirpes. The will contained a gift over in case none of the testator’s daughters should have a child who should live to attain a vested interest.. One of the daughters died leaving three sisters and children of two deceased sisters her surviving and without leaving any issue of her own. Held by Lord Selborne, L. 0., that the children of the deceased sisters were entitled to participate in the share to which the daughter having the life estate had been entitled, and that the words “surviving daughters” must be construed to mean daughters whose stirpes were surviving. It will be observed on reading the case that the lord chancellor laid stress upon the devise over in case of the death of a daughter without issue, and that he favored the view that the words in question referred to ■a survival of the stvrpes or stocks rather than to a survival of the individuals. The devise over indicated to his mind that the testator did not intend to die intestate as to any of the shares. This opinion is commented on by Cotton, L. J., in Benn v. Benn, 29 C. D. 839, in which he says that Lord Selborne relied upon the gife over as the main reason for his judgment in that case.

In re Palmer settlements, L. R. 19 Eq. 320; 44 L. J. Ch. 247 (1875), there was a settlement executed by two sisters by which the income of a trust fund was made payable to them equally during their joint lives, and after the death of one of them to the survivor for her life, and if either of them should die leaving children to pay one-half to such children, arid if either should die without leaving children to pay that half to the children of the'survivor, but if both sisters should die without issue then there was a gift over. The one first dying left children; the survivor of the two left none. It was held that the moiety which represented the share of the survivor passed to the children of the one first dying. The opinion was by Malins, V. C., who held that in this case the word “survivor” meant and could mean nothing but “other.” In Wake v. Varah (1836), 2 C. D. 348; 45 L. J. Ch. 533, the testator gave the residue of his estate to trustees in trust to pay and divide the income equally among his three children during their respective lives, and after the death of each child the share of the fund to the income of which the deceased child was entitled for life was to be in trust for his or her issue, but

“in case and so often as, any of my said three children shall die without leaving issue, the said trustees or trustee for the time being shall stand seized and possessed of the share to which such child for the time being dying without leaving issue as aforesaid shall become entitled during his or her life, as well originally under the trusts aforesaid as by survivorship or accruer under this present clause, in trust for the survivors or survivor of my said children during their, his or her respective life or lives, and in equal shares if more than one

with, a gift over in case all Ms eMldren should die without leaving issue.

The court of appeals (Baggalley, James and Cleasby) held to the opinion of Lord Selborne in Waite v. Littlewood, supra, and Doe v. Wainewright, supra, and adjudged that the issue of the second cMld, although she ivas not the survivor, became entitled on the death of the third to the whole of the fund. Vice-Chancellor Hall, from whose judgment the appeal was taken, and whose opinion was affirmed, seems to have relied largely upon the fact that there was a gift over, indicating that the testator had in mind the complete devolution of the title under the will, and that there should be no intestacy.

The next case in point of time was Beckwith v. Beckwith (1877), 46 L. J. Ch. 97, in wMch the court of appeals (James, Baggalley and Bramwell) declined to follow Wake v. Varah and Waite v. Littlewood. The testator in that case directed his trustees to invest a fund for the benefit of his five daughters, and during the life of each to pay to her the income of a share and to hold the same in trust for her children, but in case there should be no child of that daughter who should attain a vested interest the share should accrue to his other daughters or other daughter surviving in equal shares. The will contained no gift over in the event of all the daughters dying without issue. It was held that the child of the daughter who died first took no interest in the share of the daughter who died next, the reason being that the testator did not provide against intestacy by a gift over, and that, therefore, the word "survivor” should be used in its common ordinary sense. A notable ease is Lucena v. Lucena (1878), 7 C. D. 255; 47 L. J. Ch. 203; its facts are almost identical with those in the case at bar. There the testator divided the residuary estate into six shares and provided for the transfer to the sons of immediate title to and possession of their shares, but also provided that the shares of the daughters should remain vested in the trustees upon trust for the daughters for life and afterwards for their issue, and that in case the daughters should die without having received their share and without lawful issue, then such shares to be divided equally among his "surviving children” in the same manner as the original shares. One daughter died in 1876 without issue. At that time one son only was living, and two daughters had died leaving issue. One son had died leaving issue and one without leaving issue. The controversy was over the distribution of the share of the daughter who had died without leaving issue. Sir George Jessel, M. R., held that the words “surviving children” meant children surviving in person, or surviving stocks, and that the share in question must be divided into thirds between the surviving brother and the issue of the two sisters whose shares were settled. This judgment was reversed, but as to the division only, the court of appeal holding that “surviving children” must be construed “other children,” and that the share must be divided into fifths amongst the representatives of all the brothers and sisters. It was said that the decision of the master of the rolls was correct in so far as he held that the word “surviving” could not receive its strict construction, but that he was wrong with respect to the ascertainment of the persons who were entitled to portions of the share in question, and it was squarely held that under the circumstances of that ease the word “surviving” meant “other.”

In re Walker’s Estate (1879), 12 C. D. 205; 48 L. J. Ch. 598, Vice-Chancellor Hall follows Waite v. Littlewood, and Lucena v. Lucena, in a ease in which there was a bequest to the testator’s children for life with remainder to their respective children with a clause of accruer for the shares of any of the testator’s children dying without leaving issue in favor of his surviving children. This was held to carry an accruing share to the then living children of the testator and children of those then dead, even though the will contained no gift over on the death and failure of issue of all the testator’s children.

In re Bilham (1901), 2 Ch. 169; 70 L. J. Ch. 518, the chancery division applied Waite v. LiMlewood and Lucena v. Lucena to a case in which a testatrix gave a life interest in a fund to her three daughters with remainder to the children of each, with a gift over on the death-of airy tenant for life without leaving children to the surviving tenants for their lives, and then to the children of the surviving tenants for life in like manner as their original shares were given, with an ultimate gift over on the failure of issue of all the tenants for life.

All the English authorities are collected and discussed in Harrison v. Harrison (1901), 2 Ch. 136; 70 L. J. Ch. 551. The court of appeal, Cozzens-Hardy, J., quotes from the opinion of Mr. Justice Kay, In re Bowman, 41 C. D. 525: “It seems to me that the decisions establish the following propositions — first, where the gift is to A, B and 0 equally for their respective lives, and after the death of any of them, then to his children, but if any die without children, to the survivors for life with remainder to their children,, only children of survivors can take under the gift over; second, if to similar words there is added a limitation over if all the tenants for life die without children, then the children of a predeceased tenant for life participate in the share of one who dies without children after their parent; third, they also participate, although there is no general gift over, where the limitations are to A, B and C equally for their respective lives, and after the death of any to his children, and if any die without children to the surviving tenants for life and their respective children, in the same manner as their original shares.”

After a discussion of the authorities the writer concludes that the first two propositions are established by the authorities, but that the third is not warranted by them, and he declined to follow it. There is no reported English ease dealing with the subject since Inderwick v. Tatchell, supra, in 1903, and I leave the discussion of the English cases with the feeling that there is not there any hard and fast rule for our guidance, nor anything which can do more than merely indicate in a general way the direction of the thought of the English judges on the point in question.

I have found no case in our state, nor has the diligence of counsel been more successful, in which the question at issue has been at all discussed. Perhaps but little light can be obtained from a discussion of the cases, because, after all, all the canons of construction fail when opposed by what appears to be the plain intent of the testator. There are some cases in other states to which, perhaps, reference should be made.

In Carter v. Bloodgood, 3 Sand. Ch. 293, the testator gave the residue of his estate to trustees, they to pay the annual income to his six children equally during their lives, and at the death of either of them without issue that share to become part of the residue, the income of which was to be equally divided among the surviving children, and if either of his children should die leaving issue that share to be equally divided amongst those children. One daughter died without issue; then another died leaving one child, a son; and then two other daughters died without issue. It was there held that the words “surviving” children meant “other” children, and that the son of the deceased daughter was entitled to a share of the fund.

There is, likewise, the case of Ridgely v. Ridgely (1905), 59 Atl. Rep. 731, in which the court of appeals of Maryland seems to have decided the question in favor of the view adopted by Mrs. Cook, while only two years earlier the case of Wilson v. Bull (1903), 97 Md. 128, held under the wording of the will in question that the words “surviving brothers and sisters” must be used in their ordinary meaning.

The paramount rule for the construction of testamentary instruments is that the court must strive to ascertain the intention of the testator as expressed by the words of the instrument. Such intention, if so ascertainable, will prevail over technical rules and will disregard the common, ordinary meanings of words and adopt such meaning as can be deduced from the testator’s intention. This has long been the settled rule in England and America and needs no citation of authorities for its support.

I think that anyone who reads this will, not having in mind any legal rules of construction, but for the purpose of ascertaining the testator’s mind, ’will be struck by the idea that his main thought was to make an equal division of his estate among the seven branches of his family, and that in case any specific beneficiary should not attain to title to and possession of a share, that share should not go out of the family and should not be subject to intestacy, but quite on the contrary thereof should pass under the terms of the will to the various stocks whom he had in mind as specific and direct beneficiaries; and that he did not mean that the interest of any of the female beneficiaries should be subject to be finally vested by reason of the chance of mere survivorship. How could he have any idea as to who the ultimate beneficiaries might be, or whether they might be six in number or only one ; or in the event of Mrs. Appleton having been the longest liver of his family whether the final vesting of the estate should be subject to that chance only ? I therefore think that the testator had in mind perhaps not the actual survival of any particular individual, but a continuance and succession in some way of the stocks designated and appointed by the will, so that the word in question should not be read literally, oc changed into “other,” but that rather like the determination in some of the English cases it should be held to mean a stirpital succession.

The contention of Thomas Ii. Stout, and those in the samé class with him, leaves out of view the fact that the Appleton share falls back into the residue of the estate; according to their view, it could not go into the residuary estate, bu,t becomes a special trust fund in the custody of the trustees under the will, the income of which cannot be devoted to residuary purposes, but must be distributed to the two surviving brothers for their lives and the capital at their death be distributed to their children, as the term was used by the testator.

It would be doing violence to the ordinary rules of construction to hold that because of the difficulty created by the peculiar wording of this will, the ascertainment of the survivors must be referred to the death of the testator rather than to the period of distribution. I do not think it is necessary to go so far. The testator had, in mind some distribution of the shares which might fall in among people who should answer the description of “surviving children” at the time of the distribution, and it would be unsafe 'and illogical to use the period of distribution as a date for some purposes of the will and not for all. In other words, I do not see how the period of distribution can be used for the purpose of placing the share in question in the residuary fund and a different period be then employed for its disposition when once it shall have been placed there.

. There remains but one other question, that concerns the right of the'defendant Audrey Osborn, who claims as adopted daughter •of Jacob Stout. The will was dated February 27th, 1861, and the testator died on May 5th, 1861. At that time there was no statute by virtue oE which an adoption could take place. The earliest legislation on this subject is found in the laws of 1877, in an act approved on March 9th of that year. P. L. 1877 p. 128. The present law is contained in P. L. 1-902 p. 259. I do not find anj' material difference between the two acts. It is quite manifest that the testator did not have in mind the devolution of the title of any portion of his estate on an adopted child of either of his children for the reason that there was no law of this state under which such, adoption could be had until 1877, and it appears that there was no law in the State of New York, the place of Jacob Stout’s domicile, until 1873, and inasmuch as Audrey Osborn must claim under the will in question, it is plain that her succession to any portion of his estate is quite beyond the testator’s intention. The will speaks only of “child or children,” which could mean to the mind of the testator only blood relations, and not relations by adoption. To hold in her favor would be to hold that she is within the terms of the will a child, and that, in the face of the fact that Thomas Stout never had any children, and in the face of the other fact, which must be conceded by the allegation of adoption, that she was somebody else’s child, and therefore not the child of Jacob Stout. Neither is she Jacob Stout’s child by implication of the statute. Section 4 of the act of 1877 provides that a child or children (so adopted) shall be invested with every legal right, privilege, obligation and relation in respect to education, maintenance and the rights of inheritance to real estate or to the distribution of personal estate on the death of such adopting parent or parents as if born to them in lawful wedlock. In other words, such adopted child may inherit' from the foster parent, but the adoption shall not operate to create a capacity to take as a child under the will of some other person.

These views lead to the following result — fipst, Audrey Osborn is excluded from any participation in the distribution of the fund in question, and second, the Appleton share will be divided into five parts, two of which will be held by the trustee for the benefit of the two surviving sons for their lives, with remainders to their respective issue; and the other three shares will be actually distributed to the issue of the three deceased daughters respectively per stirpes.


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    City of Bayonne et al. v. Borough of North Arlington.
    [Decided February 17th, 1910.]
    1. Where a person owns land across which a street has been constructed, he owns the fee-simple of the highway, subject only to the public easement, which extends, not only to the use of the surface for purpose of passage, but also to the portion which lies beneath the surface wherever it is needed for water, sewer, or gas pipes, or any other legitimate street use.
    2. In the absence of an ordinance or statute prohibiting it, an owner of the fee of the bed of a street had the right, without a permit from anyone, to lay pipes across and under the street, so long as such pipes did not unduly interfere with public travel or with the sub-surface use to which the street as such was subject.
    3. A court of equity will not pass upon the validity of an ordinance; that being the peculiar province of the courts of the common law.
    4. A borough has no right to impose conditions which do not tend toward the protection of the interest which it has as guardian of the public easement in its highways.
    5. The duty to safeguard the potable waters of the state, and see that none which originate therein are transported beyond its borders, is not within the scope of the duties of the chief executive officer of a borough.
    O. Mandamus will not lie to compel the exercise of a discretion.
    7. An injunction may always go to restrain an illegal and excessive use of authority.
    On motion for preliminary injunction.

      Mr. Gilbert Collins, for the motion.

      Mr. John M. Bell and Mr. Warren Dixon, contra.

   Howell, V. C.

This suit is brought by the city of Bayonne and the New York and New Jersey Water Company to restrain the borough of North Arlington from interfering with the action, of the water company in laying a line of water pipe across three streets of the borough. The water company'- is under contract with the city of Bay'onne to furnish it with a supply of potable water, and in order to do so, it Ends it necessary to lay a pipe line from the Passaic river across the borough and thence to Bayonne. It has acquired title to or a right in a strip of land running across the borough, and by virtue of its ownership of land on both sides of the three streets in question, it claims to own the fee of the streets subject only to the public easement therein, or, in other words, it claims the title to and possession of the streets adjacent to its pipe line route in so far as the same does not in any manner effect the public user, and the consequent right to lay its water pipes under the surface thereof. There is an ordinance of the borough passed in 1900 by which it is ordained that'no person or corporation shall dig up under, over or through the public places, avenues, streets or highways of the borough, or open the same at any place, at any time, for any purpose whatever without a permit so to do first obtained signed by the mayor and attested by the clerk of the borough, and requiring every person who desires to so dig up over under or through said places to apply to the mayor in -writing describing the place or street for which the permit is desired, and the object of opening the same, and providing that the mayor shall have power to .grant a permit for such purpose whenever in his judgment it might seem proper. It further provides for inspection of the work under the supervision of the mayor, and directs that the expense thereof shall be paid by the applicant. On January 4th, 1910, the water company made three separate applications to the mayor of the borough for permits to dig up and open the three streets for the purpose of laying its water pipe across and under the same at the points and in the manner shown in a plan which accompanied the applications. The applications stated that the pipe would be of steel, thirty inches in interior diameter, and would be laid more than three feet below the surface of the avenue, and in such manner as not to interfere with the public travel or with any present constructions in or under the avenue, which application wTas accompanied with the fee required by the ordinance. On January 14th, the mayor of the borough delivered to the water company a writing in which he stated that he had come to the conclusion that he could not grant the permit requested for two reasons:

‘‘(1) Because the resolution of the city of Bayonne under which you claim to be working, which provides that the pipe shall be of an estimated capacity sufficient for the present needs and for other requirements of the city of Bayonne, as well as for the proposed service to the borough of Richmond (New York) clearly indicates to my mind that the city of Bayonne has a sufficient supply of water for its present and future needs, and that the real object of the contract entered into with Bayonne for an alleged emergency supply is to enable you to convey potable waters of this state through the said pipe line across the river road, Kearny avenue and Schuyler avenue to the city of Bayonne and thence to the Kill-von-Kull and under the same to the borough of Richmond in the city of New York and State of New York, contrary to the' laws of this state, and it is my duty as the mayor of the borough of North Arlington to see that the laws of the state are faithfully executed; (2) Because your company has entered into a contract to sell water to the Roman Catholic diocese of Newark within the borough of North Arlington without the consent of the corporate authorities of said borough and without the consent of the corporate authorities to the incorporation of your said company or to the laying of pipes by it beneath the surface of the public roads and streets of said borough, contrary to .the laws of this state.”

The water company then filed its bill to restrain the horongh from in any manner interfering with its work in the laying of its water pipes under and across said highways, and offering to submit to any reasonable regulation fox tbe doing of the work that this court might prescribe. On the return of the order to show cause why the injunction should not issue, the defendants (the borough and its mayor) appeared and filed an answer, the burden of which is a repetition of the two reasons given by the mayor for declining to permit the water company to lay its pipe line across the three streets in question. On the argument, it was likewise objected that if the complainants had any remedy whatever, it was by way of mandamus and not by injunction.

There seems to he little doubt but that a person who owns lands across which a highway has been constructed owns the fee-simple of the highway, subject only to the public easement, and that the public easement extends not only to the use of the surface of the earth for purposes of passage, but also to the portion which lies beneath the surface wherever it is needed for water pipes, sewer pipes, gas pipes, or any other legitimate street use. It was so held in the case of Winter v. Peterson, 24 N. J. Law (4 Zab.) 524, a case cited by complainants’ counsel, and it is so recognized generally by the bar and bench. Borough of Brigantine v. Holland Trust Co., 37 Atl. Rep. 438. If there was no ordinance or other interfering statute, it would seem as if the water company had a right without a permit from anyone to lay its pipe line across the three streets in question, so long as it did not unduly interfere with public travel or with the sub-surface use to which the highway as such is subject. Question is made in this case as to the legality of the ordinance above referred to. The Borough act, which gives authority to boroughs to pass ordinances, in section 28 provides that the council of the borough shall have power

“to prescribe tbe manner in wbicb corporations or individuals shall exercise any privilege granted to them in the use of any street, road or highway, or in digging up the same for any purpose whatever.”

It was argued, on behalf of the complainants, that the ordinance in question was not authorized by that statute, inasmuch as the ordinance did not prescribe the manner in which corporations or individuals should dig up the highway for its purposes, but quite on the contrary thereof, left it with the mayor of the borough to prescribe the manner in which it should be done, committing each individual ease to his sole discretion, which might be exercised in one way on one street and in another way on the next one. The question of the validity of this ordinance, however, I must decline to pass upon, that being the peculiar province of the courts of common law.

About two months ago the water company filed its bill against the borough for the same relief which the complainants now ask in this suit on behalf of the water company.

The water company had then sought permission from the majror and council of the borough and they had refused their consent, except upon, conditions which embraced the two reasons which are given by the mayor for his refusal of a permit in the case in hand, and I held that the conditions which they attempted to impose upon the water company were unreasonable, and that the conditions which might be imposed in granting an application under that ordinance were conditions which were necessary for the proper protection of the borough and its public highways; and I still think, after having heard a second argument on the same point, that the borough has no right to impose conditions which do not tend toward the protection of the interest wdiich the borough has as guardian of the public easement in its highways. This seems reasonably clear from the opinion of the supreme court in Cook v. North Bergen, 72 N. J. Law (43 Vr.) 119; affirmed, 73 N. J. Law (44 Vr.) 818.

In my opinion, the reasons assigned by the mayor for refusing the permit are not sound in law, nor do I find that they are well founded in fact. Having attempted to give the specified reasons as reasons for-his refusal, he thereby excludes from consideration any other reasons which may have influenced him, and he has therefore elected to stand or fall by the reasons wdiich he has presented. There may be other good and sufficient causes which moved him to his determination, but they are not apparent, nor am I able to hazard a guess as to what they might'be. He has undertaken, on behalf of the borough of which he is mayor, to safeguard the potable waters of the state upon the theory that it is his duty as the chief executive officer of his borough to see to it that no potable waters which originate in New Jersey shall be transported beyond its borders. In the former ease, I held that such an arrogation of power was not within the scope of the duties of the chief executive officer of a borough; and in so far as his refusal is based upon this reason, it stands without foundation. His other reason, viz., that the water company intends to supply water to the Catholic cemetery, seems to be quite as devoid of a foundation. If, under the lawr, the water company shall eventually find that it has no right to sell water to anyone within the limits of the borough, it will not be permitted to dp so, but it will be soon enough to make this inquiry when the attempt is made. I, therefore, am of opinion that the second reason given by the mayor is quite as fallacious as the first, and that his refusal must therefore appear to be -without reason, and, consequently, void as a mere capricious exercise of a discretion which the ordinance clothes him with, and not a discretion which is based upon an examination of pertinent and relevant facts, and which flows from the exercise of a judgment that considers the legal rights of all interests involved.

I have no doubt of the jurisdiction of this court to act in the premises. The borough claims that if the water company has any remedy it is by way of mandamus. This position was well answered by the statement that mandamus will not lie to compel the exercise of a discretion. The reason is quite obvious. The only judgment that could be rendered in an action of mandamus would be that the officer should exercise his discretion. The court would not attempt to do so for him. This he claims he has done; hence the mandamus could be of no avail. Roberts v. Holsworth, 10 N. J. Law (5 Holst.) 57; Benedict v. Howell, 39 N. J. Law (10 Vr.) 221.

The case appears to me to be an ordinary one of an attempt to use an authority unreasonably and without a due consideration of the rights of the water company. Its effect is to practically destroy its right in the sub-surface of the highway upon avowed grounds that appear to me to be untenable, and hence to cause to the water company an injury which, if permitted to continue, would work an irreparable damage to it. An injunction may always go to restrain an illegal and excessive use of authority. 2 High Inj. § 1809.

I, therefore, anr of opinion that an injunction should issue in accordance with the prayer of the bill.


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    Julius Koch v. Lina Gorruflo.
    [Decided February 18th, 1910.]
    A covenant by a grantee not to use the premises for any other purpose except for a private residence, is violated by constructing a dwelling-house designed to accommodate two families and allowing two families to occupy the same.
    On final hearing on bill, answer, replication and proofs.

      Mr. Frank Voigt and Mr. Frank F. Bradner, for the complainant."'

      Mr. Charles M. Mason, for the defendant.
   Howell, V. C.

This suit is brought for the purpose of enforcing a covenant restrictive of the use of lands. The Mutual Land and Improvement Company owned the lands on both sides of a street in Newark called Hedden Terrace, the whole of which they have now sold. The complainant and defendant, respectively, own parcels of this land. They derived their titles through different intermediary grantees so that there is no privity of estate between them. The covenant is sought to be enforced by virtue of what Yice-Chancellor Green called the right of amenity, in the case of De Grey v. Monmouth Beach Club House, 50 N. J. Eq. (4 Dick.) 329. The covenant sought to be enforced reads as follows:

“That the said party of the second part, his heirs and assigns, shall not at any time prior to the first day of January, which will be in the year nineteen hundred and twenty, carry on, procure, cause, permit or suffer to be carried on. prosecuted, employed or maintained upon said lands, or any part thereof, any saloon or place for the sale, storage or other disposal of beers, wines or liquors, any manufacturing or other business of any kind whatsoever, nor use said premises for any other purposes except for a private residence and such stables and other outbuildings as may be needed or proper for use in connection with the use of said land for a private residence; and further, that no house or dwelling shall be erected upon said lands to cost less than thirty-five hundred dollars, nor shall any house or other building be erected thereon of more than two and one-half stories in height, nor shall any dwelling or other building be erected thereon including any piazza or erection whatsoever within fifteen feet of the line of said Hedden Terrace, nor shall any outbuilding other than a dwelling-house, be erected upon said lands within seventy feet of the line of said Hedden Terrace, and further, that not more than one house shall be erected on said lands herein described; and further, that the foundation wall of any house to be erected hereon shall not be raised to a height of more than seven feet above the curb line of said Hedden Terrace; and it is further expressly understood and agreed that the said several covenants on the part of the said party of the second part above specified, shall attach to and run with the land, and it shall be lawful not only for the said party of the first part, its successors or assigns, but also for the owner or owners of any lot or lands adjoining or in the neighborhood of the premises hereby granted, deriving title from or through said party of the first part to institute and prosecute any proceedings at law or in equity against the person or persons violating or threatening to violate the same.”

The complainant erected a dwelling-house upon the lot owned by him1, taking care to preserve the restrictive covenant by the terms of which he claims always to have abided.

The defendant erected a dwelling-house upon her lot, and she and her witnesses claim that it was designed and constructed for occupation by two families, and that it is now and always has been what is known as a two-family house. Some time in the early part of 1909, and only a short time before the filing of the bill, she leased the first floor of the premises to a man named Fitzgerald, as a tenant. Fitzgerald subsequently moved out, and pending the suit a lease was made for the same portion of the premises to a man named Farrand, who is now occupying the same as tenant, and the question is whether the defendant has violated the restrictive covenant.

It was testified to that all the lots which were owned by the Mutual Land and Improvement Company were sold subject to the same set of restrictions, and that the restriction in question was contained in the titles of both the complainant and defendant.

I think it is quite clear1 that the defendant has violated the covenant contained in her deed. There is a very broad distinction between a private residence and a flat or apartment house. This distinction was very clearly made by Chancellor McGill in the case of Skillman v. Smatheurst (1898), 57 N. J. Eq. (12 Dick.) 1. There the covenant provided that the premises conveyed should not be used for any other purpose than a private dwelling or private dwellings. The defendants began the erection of a three-story frame flat house with five rooms on a floor, suitable for three families. The chancellor held that the buildings, which were in course of erection, were not private dwellings, and were therefore violative of the covenant which restricted the use of the land to the erection of private dwellings. This was followed by Vice-Chancellor Garrison in the case of Lignot v. Jaekle, 65 Atl. Rep. 221. It has been held in England that an effectual way of prohibiting every kind of business is to stipulate that buildings to be erected on the land shall not be used otherwise than as private dwelling-houses. A restriction of this character will prohibit a school (Johnstone v. Hall (1856), 2 K. & J. 414) : or a charitable institution (German v. Chapman, 7 C. B. 271); or a boarding house for scholars (Hobson v. Tulloch (1898), 1 Ch. 424.); or a studio (Patman v. Harland, 17 C. D. 353). In Rogers v. Hosegood (1900), 2 Ch. 388; 69 L. J. Ch. 652, it was held that where the covenant was that every house to be erected should be adapted for and used as and for a private residence only, is broken by the erection of a block of residential flats. In Gannett v. Albree, 103 Mass. 372, it was held that where a lease provided that the premises should be used strictly as a private dwelling, the condition is violated by the use of the premises as a public boarding house; and in Mew York, in Levy v. Schreyer, 27 App. Div. 282, it was held that a building constructed so that it can be occupied by three families living separate and apart is not a private dwelling within the provisions of a covenant not to erect any tenement house or any houses except private dwellings, and whether it was intended to be used by more than one family was immaterial.

The distinction between a private dwelling-house or a private residence on the one hand and a house built or occupied as a residence for two or more families is quite obvious. The house occupied by two or more families was called by Chancellor McGill, in the case above cited, a community house; the families living there occupy apartments separate and distinct from each other, and the house becomes not a private residence, as the term is used in its ordinary meaning, but a collection of apartments leased to different tenants, and if the defendant may be allowed to put two families in her house, where shall she stop ? She would be as well entitled to put a family in each room and then claim that her property was being occupied as a private residence. The covenant in question gives no such privilege. It must be enforced in accordance with the principles above stated.

An injunction will issue to prevent the further violation of the covenant.


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    Jacob Meurer v. Fred. Kilgus et al.
    [Decided March 16th, 1910.]
    1. A contract between a contractor for alterations on a public school building and a sub-contractor provided for “tin roofing cornices, slate work leader & all metal works for Lincoln ave. school as per plans & spec, by E. P. Gilbert, arch. & to his satisfaction, for the sum of twenty-seven hundred dollars ($2,700). Lincoln avenue school, accepted.”— Held, that under this agreement, the sub-contractor was not entitled to his pay until he had finished his sub-contract, nor until the architect was satisfied that the work was properly done.
    2. In a suit by a sub-contractor to foreclose a lien on an amount due from a city to a contractor for making alterations on a public school building, evidence of an agreement on the part of the contractor to make good the default of a sub-contractor, who contracted with plaintiff to furnish certain material, is incompetent, as the litigation is wholly statutory, and no relief can be afforded in such foreclosure upon such a contract, and the agreement by the contractor will not operate as an estoppel against him in the foreclosure proceedings.

      3. A contractor with a city to make alterations in a public school house let a contract to a sub-contractor for a part of the work, and the sub-contractor contracted with a materialman to furnish part of the material. The sub-contractor failed to perform its contract, and the contractor paid a portion of the claim of the materialman, and, after the sub-contractor failed, let the contract to another sub-contractor. The amount paid the last sub-contractor and the amount paid to the material-man exceeded the amount which the contractor agreed to pay the first sub-contractor.- — Held, that the materialman had no lien upon money owed by the city to the contractor.
    On final hearing on bill, answer, replication and proofs.

      Mr. William .77. Carey, for the complainant.

      Mr. Conover English, for the defendants.
   Howell, V. C.

The bill in this case is filed to foreclose a lien which is claimed under the Municipalities Lien law. P. L. 1892 p. 369. The facts are as follows:

On August 6th, 1898, the defendant Kilgus, who is a master carpenter, made a contract with the board of education of the city of Orange to provide all materials and perform all the work for the erection and completion of alterations and additions to the Lincoln Avenue school building in that citjr, as shown on certain drawings and specifications prepared by the board’s architect and made part of the contract.

On August 17th, 1908, Kilgus sublet the roofing and metal work to the American Skylight and Iron Works, under an agreement which read as follows:

“Aug. 17, 1908. American Skylight & Iron Works. Tin roofing cornices, slate work leader & all metal works for Lincoln Ave. school as per plans & Spec, by E. F. Gilbert, arch. & to his satisfaction, for the sum of twenty-seven hundred dollars ($2,700). Lincoln Avenue School, accepted. American Skylight & Iron Works, per Jeter. L. D. Kilgus.”

In my opinion, the .proper construction of this agreement is that the sub-contractor was not entitled to his contract moneys until he had finished his sub-contract, nor until the architect was satisfied that the work was properly done. These are conditions precedent to any recovery by him against his contractor.

The complainant, Mcnrer, furnished materials to this subcontractor, all of which materials wore used in the building. In the latter part of December, 1908, the sub-contractor failed. It abandoned the work under its contract so that the contractor was obliged to have the work finished by other agencies. On January 2d. 1909, the contractor, Kilgus, made the following contract with the Newark Cornice and Skylight Works for completing the sub-contractor’s work:

“Jan. 2, 1909. Newark Cornice & Skylight Works. The completing of all metal work for the Lincoln Ave. school, Orange, N. J., as per plans and specification and details by C. B\ G-nilbert. ark. & to his satisfaction for the sum of twenty-three hundred dollars ($2.300) Jj. D. K.”

In pursuance of this contract the sub-contractor’s work was finished by the Newark Cornice and Skylight Works. It was paid therefor hv Kilgus. On January 14th, 1909, the complainant filed a lien claim with the proper municipal officers and took such measures as he was advised were necessary, in order to perfect his lien upon the fund coming due from the municipality to the contractor, Kilgus. The validity of this lien is in question.

The complainant proved some correspondence between himself and Kilgus which he claims operates in his favor as features of this case. All the material furnished by him to the American slvylight company was furnished between October 20th and October 31st, 1908. On October 16th, Kilgus wrote a letter to the complainant in which he said:

“I will deduct from the American Skylight & Iron Works $1,000 and place same to the credit of your account for payment when the work on the Lincoln Avenue school is completed at Orange. N. J.”

On the same day the complainant wrote to Kilgus acknowledging receipt of his letter, stating, among other things, the following :

“We understand that you are willing to agree to make the first payment to us amounting to $1,000 when the American Skylight & Iron Works have done this amount of work. Will you 'be good enough to write us to this effect, as on your original letter as pointed out to you the payment could he withheld by you until the work was done.”

In a postscript he states that he understands that the first payment is due to the American Skylight and Iron Works when the main work is done; second payment when cornice is on the annex and the roof of the wings has been completed.

Up to this time it is quite manifest that there was no agreement whatever between the parties arising out of this correspondence; but on October 19th, Kilgus, in reply to the last letter of the complainant, stated as follows:

“I will make first payment of $1,000 to you for the account of the American Skylight & Iron Works for material you are to furnish for the Lincoln Avenue school, Orange, N. J.”

On December 7th, after the complainant had furnished all his material, Kilgus writes :

“We are authorized to-day to make a payment of $1,000 to you by the American Skylight & Iron Works of Jersey City on account of materials furnished for the Lincoln avenue school, Orange, N. J. We are sending you $500 to-day and will make payment of the balance in a few days ; as we have several heavy payments coming due this week we are obliged to make it two payments at this time, which we trust will meet with your satisfaction.”

On January 2d, 1909, Kilgus wrote to the complainant, in which he said, among other things:

“In reply to yours of the 31st ult. I beg to say the American Skylight & Iron Works had a contract on the Lincoln avenue school of Orange, N. J., for which I agreed to pay the first thousand dollars when due to you and charge it to the American Skylight & Iron Works account. I find by closer investigation they have not, done a thousand dollars worth of work as per the contract, and what they have done is not satisfactory to the terms of the contract, and they have laid down on the job altogether, and I have been obliged to serve them with a three days’ notice which has expired and I have not heard from them. Their contract price is $2,700 to do this work, and if you care to complete the work according-to the terms of the contract you can do so for the balance of same which is $2,200. I must know immediately,” &c.

And on January 7th, of the same year, he again wrote to the complainant giving his version of the understanding between him and the complainant and declining to make any further payments. There are some other letters, but these are the only ones that seem Jo me to be important.

I do not see how this correspondence, even if it can be construed into an agreement to pay the debt, or an agreement to stand for the default of the American skylight company, can be of any avail to the complainant in this suit. The present litigation is wholly statutory; it provides only-for the foreclosure of liens and does not in any way afford to any of the parties any other relief, much less such relief as can and ought to be afforded by the courts of common law; nor do I think that any statements made by Mr. Kilgus in this correspondence can be held to operate as an estoppel against him under the peculiar and very limited form of proceeding to which the complainant is by our statute entitled. I must therefore hold that if the complainant has any remedy against Mr. Kilgus arising out of this correspondence that remedy must be sought in the common law jurisdiction.

We have left therefore a statement of facts which is extremely simple. It raised the question whether the materialman, who furnishes materials to a sub-contractor who had not completed his contract, is entitled to a lien on the money due or to become due from the municipality to the original contractor. It appears that on January 2d, 1909, Kilgus made a contract with the Newark Cornice and Skylight Works to finish the work to be done under the contract made by the American Skylight and Iron Works. He had already paid to the complainant, on account of the American skylight works contract, the sum of $500; deducting this from the contract price, $2,700, it would leave $2,200 with which to finish the work. He was obliged to pay $2,300, thereby losing, from his own funds, $100, and demonstrating that on that day, January 2d, there was nothing due from the contractor to the sub-contractor, nor in fact under the state of facts could anything thereafter have become due thereunder. This particular point was raised and decided under the New York statute, which is substantially the same as ours, in Brainard v. Kings County, 84 Hun 290; 32 N. Y. Supp. 311; in that case there was a contract between the county and one Dean for the erection of a bridge in Brooklyn. Cregin was a sub-contractor for the work or some portion of it. He purchased materials from the plaintiff, which were used by him to finish the contract on his, G'regin’s, account, and this Dean did. Brainard filed a lien under the Municipalities Lien law, and in the court below recovered judgment against the county. The county appealed, and the appellate court set the judgment aside on the ground that Cregin’s creditors could not have a lien on the fund because there was nothing due from Dean to Cregin. Vice-Chancellor Grey, in Garrison v. Borio, 61 N. J. Eq. (16 Dick.) 236, adopted the rule laid down in that case. He declared in substance that it was nccessary for a claimant under these circumstances in order to recover to prove not only -that there was a sum due from the contractor t.o the sub-contractor, but also that there was a sum due from the municipality to the contractor. It was admitted in the case at bar that the municipality was indebted to Kilgus in an amount sufficient to satisfy the complainant’s claim; but inasmuch as it likewise appeared that the contractor owed the subcontractor nothing, there can be no decree in favor of the lien.

It is quite plain that unless there is some fund to which the lien can attach there necessarily can be no lien. How can a creditor of the sub-contractor work out a lien on the contractor’s money through the medium of a sub-contractor who confessedly cannot recover against the contractor P The sub-contractor is in no position to sue the contractor, and it has been held in many cases that the criterion of the ability to claim a lien is the capacity to bring a suit with respect to the indebtedness. The subcontractor cannot recover against the contractor because he did not complete his contract; he had not earned his contract moneys, and in a suit between him and the contractor the judgment must be in favor of the contractor.

I, therefore,' am constrained to hold that the complainant lias no lien, and that his hill must be dismissed, with costs.


author: Walker, V. C.

text:
    Lillian Roarke v. Alfred Roarke.
    [Decided February 25th, 1910.]
    1. An adjudication by a police justice under P. L. 1898 p. 91/2 § 17, on complaint of the overseer of the poor that the defendant is a deserter of his family, and requiring him to pay a certain sum weekly for the support of his wife and child, precludes an application by the wife to this court for maintenance under the Divorce act (P. L. 1907 p. JpVt § 26), while the adjudication of the justice is still in force and being obeyed, when the proceedings before the police justice were initiated by the wife, although prosecuted by and in the name of the overseer.
    2. When a wife causes complaint to be made by the overseer of the poor against her husband under the Disorderly act, to the end that he be adjudged to support her and also files a bill in chancery for maintenance under the Divorce act, and the complaint before the police jus-tice is prosecuted to an adjudication prior to a hearing in this court on an application for alimony and counsel fees, she will be held to have waived, for the time being, her remedy in this court in favor of the remedy in the police court; the doctrine of election applies.
    3. The complainant being a real, though not a nominal, party to the proceedings before the police justice, is bound by those proceedings; and even if the overseer of the poor were the only party, the complainant would be privy to the proceedings and therefore bound by the judgment.
    4. When a wife causes to bo prosecuted to a finality a complaint against her husband for support before a police justice under the disorderly act before prosecuting to a hearing in this court an application for alimony under the Divorce act, the matter in issue will be held to be res adjudicata.

    5. The adjudication of a police justice against a deserter of his family that he is a disorderly person and requiring him to pay a certain sum weekly for the family’s support, being. operative for one year from its date, after which time the complainant would be at liberty either to cause the defendant to be prosecuted de novo before the police justice or resort to this court for the remedy given by the Divorce act, a bill for alimony already filed will be retained, with leave to the complainant to proceed thereon after the police justice’s adjudication has become inoperative.
    On application lor alimonj’ pendente Hie.

      Mr. Charles T. Cowenhoven, for the complainant.

      Mr. Winfield S. Anglemán, for the defendant.
   Walker, V. C.

The bill of complaint is one by a wife for maintenance for herself and the child of the parties, under the statute, P. L. 1907 p. 474 § 26. The present application is 'for alimony and counsel fee pendente lite. The defence to the application is that the complainant caused the arrest of the defendant as a deserter of his family, under the Disorderly act (P. L. 1898 p. 942 § 17), and that the police justice of Rahway, before whom he was arraigned, adjudged him to be a disorderly person within the meaning of the statute, and made an order that he pay $5 a week to the overseer of the poor for the support of his family (wife and child). The defendant, upon his apprehension, entered into the usual bond, with security, conditioned to obey such order as might be made, and has, in fact, complied with its terms. At the time the application herein was made, the order of the justice was in force and still remains in force. The complainant in the proceedings against Roarke before the police justice was made before the filing of the bill, although the adjudication by the justice was not made until several days after the bill was filed. The adjudication, however, had been made before this application was preferred.

The question presented on this record is, does the adjudication of the police justice of Rahway that the defendant' is a deserter of his family and the requiring him to pay $5 a week for the support of his wife and child, preclude an application to this court for maintenance under the statute while the adjudication of the police justice is still in force and being obeyed? This question, to my mind, must be answered in the affirmative.

The proceeding before the police justice, although on the complaint of the overseer of the poor of the city of Rahway, was initiated by the defendant’s wife, who is the complainant here. On the day the overseer’s complaint was made before the police justice, Mrs. Roarke, herself, made a complaint before the same justice of purport similar to that made by the overseer, and her complaint was, in fact, the basis of the overseer’s complaint. The record of the proceedings before the police justice so disclosed. It would seem that the wife, for whose benefit the complaint was made, is a real party in interest in the cause and can be concluded by the judgment of the police justice. Whether so or not, the complainant, in this cause, must be considered to be the real party in interest in the prosecution before the police justice of Bahway, for, while section 17 of the Disorderly act requires the overseer of the poor to make complaint only in ease he believes that the defendant deserts or willfully refuses or neglects to provide for and maintain his family, and that by reason thereof they may become chargeable to the city, nevertheless, in this case, as I said before, the wife instigated the making of the overseer’s complaint, and, on the argument of this matter, she was treated by counsel on both sides as the real party in interest in the proceedings under the Disorderly act, counsel for the complainant so arguing both orally and in his written brief.

When a public officer sues in his own name by virtue of statutory authority in respect of some right which enures to the benefit of an individual, the individual, it seems, is a party substantially and beneficially interested. 30 Cyc. 94- And although the proceedings by the police justice are prosecuted in behalf of the public to save it from becoming charged with the support of the deserted family, the family, nevertheless, is also interested.

Therefore, as this matter was presented by both sides upon the theory that the wife was the real party in interest in the complaint before the police justice of Bahway, it will be so held in this' case for the purpose of the decision of the question so presented, and hereafter the matter in the police court will be referred to as the wife’s proceeding, ignoring the more or less nominal character of the overseer of the poor upon the record.

To give the court jurisdiction to decree such support as the wife seeks in this case, there must be not only an abandonment of the wife by the husband, but also neglect or refusal to support her. Both conditions must exist to give jurisdiction. Margarum v. Margarum, 57 N. J. Eq. (12 Dick.) 249. Fow, how can it be said that the husband neglects or refuses to support his family, when, as a matter of fact, he is pajdng for their support such sums as were adjudged against him by a magistrate, upon proceedings instituted by his wife, tire present complainant?

The two remedies, that under the Disorderly act and that under the Divorce act, arc for one and the same thing, namely, support for a wife, or wife and family, as the case may be, against a deserting husband who neglects and refuses to perform his duty to maintain his family. As a party may waive the remedy given by statute and resold to his common law remedy (Coxe v. Robbins, 9 N. J. Law (4 Halst.) 384), so a party may undoubtedly waive one statutory remedy in favor of another.

The doctrine of election applies.

When a suit is brought in equity and one is pending for the same cause in a court of law, the defendant may put the complainant to his election whether he will proceed at law or in equity, if the remedy at law is co-extensive and equally beneficial with the remedy in equity. Way v. Bragaw, 16 N. J. Eq. (1 C. E. Gr.) 213, 217. In the case at bar the election has been made in favor of the action at law, and, the complainant having proceeded to a finality in the action before the justice, before preferring the application in this court, she must certainly be held thereby to have elected to stand upon the legal remedy. And the case of O’Brien v. O’Brien, 49 N. J. Eq. (4 Dick.) 436, in which it was held that a husband who, without justifiable cause, separates himself from his wife and neglects to provide for her such a support and maintenance as this court shall adjudge that the nature of the case and the circumstances of the parties render suitable and proper, is not in conflict with the doctrine just stated. The defendant in that case, upon separating from his wife, permitted her to live in a house he owned, and also permitted her to collect rents from other houses he owned, amounting to $60 a month, but did not bind himself to continue doing so, but considered the allowance temporary. The court made such an award as in its judgment was suitable and proper. In the case at bar the defendant has obligated himself by bond, with surety, to pay the award made by the justice in the proceeding instituted by the wi fe. I repeat: She has made her election.

There is another defence to the complainant’s present application, and that is that the matter is res judicata. See the recent cases in our court of errors and appeals of Slein v. Cuff, 76 N. J. Eq. (6 Buch.) 277, and In re Walsh's Estate, 74 Atl. Rep. 563.

The complainant, being a real, though not a nominal, party to the proceedings before the police justice, is bound by those proceedings. Even if the overseer were the only party to the proceedings under the Disorderly act, the complainant would be privy to the proceedings. In 2 Bouv. Dick. (Rawle’s ed.) 754, “privies” are described as persons who aré partakers of or have an interest in any action or thing, or any relation to another. See, also, 32 Cyc. 388. Within this broad definition, the complainant is certainly privy, if not party to the proceedings before the police justice, and, as party or privy, would be bound by the proceedings.

The persons between whom a judgment or decree in a suit is conclusive in a subsequent suit, are the parties to the prior suit and their privies. 24 Am. & Eng. Encyd. L. (2d ed.) 724.

The justice’s adjudication is operative for one year from its date (P. L. 1898, supra, § 23), and will expire by limitation within the next five months. At that time, if the situation and status of the parties are the same, the complainant would be at liberty either to prosecute the defendant de novo before the justice or resort to this court for the remedy given by the Divorce act. P. L. 1907, supra.

The present application will be denied, without costs, and without prejudice to its renewal, as above indicated.


text:
    Edna Dorothea Howard v. Walter Henry Howard.
    [Decided February 24th, 1910.]
    1. In a suit for divorce founded on adultery, the signed confessions of the paramour written by the petitioner and witnessed, but made in the absence of the defendant, are not evidence.
    2. The defendant’s confession of guilt made to his wife and sister, are not such evidence as, under the law of this state, will support a decree.

      Mr. Theodore D. Gottlieb, for the petitioner.
   Walker, V. C.

This is an ex parte divorce case for adulteiy. Marriage and residence are clearly proved. The master reports that in his opinion “all the material facts charged in the petition relative to the charge of adultery are true, and that a decree for divorce should be made for the cause of adultery.” That the charge of adultery is proved to be true because the defendant has confessed it, I may admit, but his confession, or rather confessions, are insufficient in law to prove the commission of the offence, as will hereafter appear.

The proof of adultery lies in confessions of the defendant and his paramour. Of course the confessions of the paramour are not evidence when made out of the presence of the defendant. Doughty v. Doughty, 32 N. J. Eq. (5 Stew.) 32; Berckmans v. Berckmans, 16 N. J. Eq. (1 C. E. Gr.) 122; Hurtzig v. Hurtzig, 44 N. J. Eq. (17 Stew.) 329, 337; Graham v. Graham, 50 N. J. Eq. (5 Dick.) 701. The confessions of the paramour relied upon in this case were made in the absence of the defendant. She signed a confession which was’written bjr the petitioner, and her signature was witnessed by a woman whom the petitioner called in for the purpose. This was after the defendant had left the petitioner, he having left before she discovered liis infidelity.

As to the defendant’s confessions of guilt: These were made to his wife and her sister. They do not appear to have been collusive, but, nevertheless, they are not such evidence as, under our law, will support a decree.

Chief-Justice Beasley, sitting as master in Jones v. Jones, 17 N. J. Eq. (2 C. E. Gr.) 351 (at p. 352), said: “The approved rule of law appears to be that a divorce will not be granted when the admissions of the criminal party constitute the entire basis upon which to rest the conclusion of guilt. Such evidence, it is said, may convince to a moral certainty, but it does not fill the measure of legal proof. That such a standard for legal judgment could not safely be adopted is apparent, when we consider the ease with which the entire case could be simulated by colluding parties. The precedents, therefore, wisely require something more than the naked declarations of the defendant.”

Perhaps the leading case in this state on the question of .confessions is that of Summerbell v. Summerbell, 37 N. J. Eq. (10 Stew.) 603.

' Vice-Chancellor Grey, in Perkins v. Perkins, 59 N. J. Eq. (14 Dick.) 515, speaking of Summerbell v. Summerbell (at p. 517), said: “In that case the opinion of Barker Gummere, Esq., as master, collates and comments upon the cases in a manner so thorough and discriminating as to be of the utmost value. The opinion of the court of appeals affirming the decree advised by him discusses the special facts shown.”

While the particular point upon which Summerbell v. Summerbell turned was presumption of coercion on the part of a husband concerning a wife’s confession of adultery written in the husband’s presence, the learned master, in his opinion, reviews the law of confessions generally and holds that they are not conclusive in and of themselves, and that whether made by husband or wife cannot be made the basis of a decree unless strongly corroborated. See Summerbell v. Summerbell, supra (at p. 605 et seq.) See, also, Kloman v. Kloman, 62 N. J. Eq. (17 Dick.) 153, in which Vice-Chancellor Reed holds (at p. 156) that corroborating evidence to support a confession must be in respect of the act charged. See, also, Perkins v. Perkins, 59 N. J. Eq. (14 Dick.) 515.

As there is no legal evidence of the guilt of the defendant the adultery is not proved, and the divorce must be denied.