author:
Swayze, J.
      Garrison, J.

text:
    Edmund Braddock, respondent, v. J. Clarence Hinchman, appellant.
    [Submitted November 18th, 1910.
    Decided March 6th, 1911.]
    The complainant, by a written agreement with one Hinchman, since •deceased, was to have the entire control and management of an unproductive cranberry bog, a pond and certain buildings for twelve years; expenses and net returns were to be shared equally, and the buildings kept in good repair and insured by the complainant and Hinchman or his executors; in pursuance of the agreement Braddock expended his skill and labor and made the bog productive, but a purchaser from Iiinchman’s devisees refused to allow him to manage the bog according to the agreement. — Held, (1) that this agreement constituted a joint adventure and a subject of equitable jurisdiction; (2) that by its terms the real estate was subject to the joint adventure for twelve years even though Hinchman has died; (3) that a purchaser from Hinehman’s devisees with notice of the agreement was chargeable with a trust of the real estate for the benefit of the joint adventure.
    On appeal from an order of the court of chancery advised by Vice-Chancellor Walker.
    The complainant’s bill charges that on June 7th, 1907, a written agreement was, made between him and Charles K. Hinchman, now deceased, by which the complainant became the manager and was to have the entire control of Hinchman’s cranberry interests at Taunton, comprising the Centennial pond and two houses. The complainant was to have the entire management of the water, flooding, draining, mowing, brushing,‘picking and sorting fruit, and cleaning, packing and marketing the same. The cost of labor and the expense of the bog and of picking, cleaning and marketing the fruits was to be paid equally by Hinchman and Braddock, and the net amount, after paying expenses, to be divided equally. It was agreed that Braddock should not be required to pay any tax, nor any expense if the main dam and trunk or gates should be washed away, and that the buildings were to be kept in good repair and insured at the expense of Braddock and Hinchman or his executors, but that in the event of loss by fire Braddock was not to sustain any loss. It was mutually agreed that the contract should continue and be in force for twelve years. The bill charges that the bog was unproductive at the time that Braddock was versed in the culture of cranberries, and that by his labor he has made the bog productive, so that at the time the bill was filed there was promise of a large yield. After the death of Hinchman, the land was conveyed to the present appellant, but the bill charges that both Hincliman’s devisees and the present appellant had notice of the agreement and of the partial performance thereof by the complainant, and purchased subject to the complainant’s rights. The appellant has since refused to allow the complainant to manage the bog and to pick, sort and market the cranberries according to the terms of the agreement. It prays for a specific performance of the contract and for a decree giving the complainant an equitable lien upon the land superior to the rights of the appellant and for general relief. To this bill the appellant demurred and the vice-chancellor overruled the demurrer upon the authority of Adams v. Schmidt, ¡68 N. J. Bq. (2 Bob!).) 168, and Burrell v. Middleton, 66 Atl. Bep. 978.

      Messrs. Gaskill & Gaskill, for the complainant-respondent.

      Mr. Charles R. Stevenson and Messrs. French & Richards, for the defendant-appellant.
   The opinion of the court was delivered by

Swayze, J.

We are unable to sustain the order in this case upon the theory that the complainant is entitled to specific performance of the contract as set forth in the bill, or upon the ground of an equitable lien, upon which it was sustained by the vice-chancellor. We think, however, that the bill charges facts which justify the order. The agreement is in the nature of a cropping agreement. In Guest v. Opdyke, 31 N. J. Law (2 Vr.) 552, we held that where land was worked on shares under a mere agreement to have a portion of the crop, the parties were tenants in common of the crop> and the relation was not that of landlord and tenant. Subsequently, under agreements worded somewhat differently, we held that the relationship was that of lessor and lessee. New Jersey Midland Railway Co. v. Van Syckle, 37 N. J. Law (8 Vr.) 496 (at p. 507); Reeves v. Hannan, 65 N. J. Law (36 Vr.) 249. The distinction between those cases and the earlier case rested upon the language of the agreement, which must always be of importance. The present case differs from Guest v. Opdyke in that it involves not an annual crop but the crops of a series of years, derived not mqrely from the annual cultivation of the soil and sowing.of seed, but from a more or less permanent plantation of cranberry bushes. If we were to follow the rule of Guest v. Opdyke, we should have a case where the parties were tenants in common of successive crops, some of them to be hereafter grown, the right to which would become fixed in equity when the crop came into existence. Smithurst v. Edmunds, 14 N. J. Eq. (1 McCart.) 408; McFarland v. Stanton Manufacturing Co., 53 N. J. Eq. (8 Dick.) 649. The rule has been applied to crops to be raised in a subsequent year. Cumberland National Bank v. Baker, 57 N. J. Eq. (12 Dick.) 231. The agreement must be read in the light of - these decisions, the effect of which was to give Braddock a potential interest enforceable in equity. It cannot be said that the agreement is sufficient to create a partnership between Braddoek and Hinehman, since it is evident that neither of them intended to constitute the other the general agent for the management of the business, and neither intended to assume the liability for obligations incurred by the other. There is nothing to indicate an agreement to form a copartnership. Wild v. Davenport, 48 N. J. Law (19 Vr.) 129. The agreement does, however, evince an intent to enter upon a joint adventure to which Hinchman should contribute the land, with the cranberry bushes unproductive as they were, and Braddoek should contribute his labor and sin'll and knowledge of the business, and each should share in the expense and the profits. That there may be such a joint adventure, even though the elements of a partnership are absent, appears from our own decisions. Ross v. Stevens, 45 N. J. Eq. (18 Stew.) 231, was a case of a joint venture of the plaintiff and defendant in the purchase and sale of lands, whereby each was entitled to one-half of the profits, and Vice-Chancellor Van Fleet sustained a bill for an accounting, and his decree was affirmed by this court. In Warwick v. Stockton, 55 N. J. Eq. (10 Dick.) 61, Vice-Chancellor Pitney held that the agreement was one of joint adventure and not of partnership; he refused to appoint a receiver pendente lite, but held that the complainant was clearly entitled to have an account taken in the court of chancery. Conover v. Tansey, 73 N. J. Eq. (3 Buch.) 562, was a case somewhat resembling the present, and Vice-Chancellor Howell did not question that parties who had entered into a joint adventure were subject to at least some of the rales which regulated partnerships, but he held that under the facts of that ease he would not appoint a receiver. Subsequently, in Jackson v. Hooper, 76 N. J. Eq. (6 Buch.) 185, he dealt again with the subject of a joint adventure, and collected the earlier cases and granted relief to the complainant upon that theory. His decree was reversed, but upon a ground that applied offiy to the facts of that particular case. Vice-Chancellor Garrison has dealt with the subject in Simmons v. Lima Oil Co., 71 N. J. Eq. (1 Buch.) 174. It is sufficient to cite of the cases in other jurisdictions, Marston v. Gould, 69 N. Y. 220; Petrie v. Tarrent, 49 N. W. Rep. 1076; Bradley v. Wolff, 83 N. Y. Supp. 13. We entertain no doubt of the general principle that where parties engage in a joint adventure to share profits and losses, equity may entertain jurisdiction very much upon the principles applicable to partnerships.

The difficulty in this case arises out of the fact that Hinchman has died and can no longer perform his part of the contract. If the case were a partnership it would be the duty of Braddock, as surviving partner, to wind up its affairs, and this ordinarily ought to be done at once or with reasonable speed. We have, however, held in Wild v. Davenport, 48 N. J. Law (19 Vr.) 129 (at p. 137), that “a stipulation in partnership articles that upon the death of a partner his capital shall remain in the business until the expiration of the prescribed term of the partnership is binding as well upon the estate of the deceased as upon the surviving partner.” By analogy, where capital is embarked in a joint adventure for a prescribed term, and the parties have clearly evinced an intent that it should remain in the business until the expiration of the term, it is not to be withdrawn merely because one of the joint adventurers has died. The present agreement by its express terms was to last for twelve years. If there were nothing more in the agreement it might well be contended that it was subject to.the implied condition that both of the joint adventurers should survive in order that the agreement might be carried out according to its terms, but there is language in this agreement which clearly indicates that Hinchman intended that the property should remain subject to the control of Braddock in accordance with the agreement after Hinchman’s death. No other meaning can be attributed to the provision that the buildings are to be kept in good repair and insured at the expense of Braddock and Hinchman or his executors. By imposing this liability upon his executors, Hinchman clearly showed that he contemplated that the agreement might last longer than his own lifetime.

The remaining question is 'whether this agreement can be enforced against the present appellant. This follows almost as a matter of course our conclusion that the property was to be continued in the joint adventure after Hinchman’s death. ■ His heirs and devisees held the land in trust for the purposes of the agreement, and the appellant, having acquired his title with notice of the agreement, is subject to the like trust.

We think, therefore, that the objection of the appellant that the case is not a proper case for the jurisdiction of equity fails, and that the jurisdiction may be sustained either upon the theory of an equitable title or upon the theory of a joint adventure, or upon the theory of a trust, or upon all three. In any event, the alleged lack of equity is not so clear that a demurrer to the bill should prevail.

The order is therefore affirmed, with costs.

Garrison, J.

(concurring).

I think that the order of the court of chancery should be sustained upon the ground upon which such order was put by the court below, viz., that of "equitable lien.”

The agreement set forth in the bill is of the sort of which Mr. Pomeroy says:

“In a large class of executory contracts, express or implied, which the law regards as creating no property right, nor interest analogous to property, but only a mere personal right or obligation, equity recognizes, in addition to the personal obligation, a peculiar right over the thing concerning which the contract deals, which it calls a ‘lien’ and which, though not property, is analogous to property, and by means of which the plaintiff is enabled to follow the identical thing, and to enforce the defendant’s obligation by a remedy which operates directly on that thing. The theory of equitable liens has its ultimate foundation, therefore, in contracts, express or implied, which either deal with or in some manner relate to specific property such as a tract of land * * * and the like. It is necessary to divest one’s self of the purely legal notion concerning the effect of such contracts, and to recognize the fact that equity regards them as creating a charge upon or hypothecation of the specific thing, by means of which the personal obligation arising from the agreement may be more effectually enforced than by a mere pecuniary recovery at law.” 8 Pom. Eq. Jur. § 1234.

From the illustrations given in the text and the cases cited in the notes, the pertinent doctrine to be deduced may be stated in this form: An executory agreement in writing, whereby a party so'contracts that land of his, therein particularized, is clearly appropriated to the performance of the obligation of its owner created by such contract, gives to the party, with whom he has so contracted, an equitable lien upon the land itself upon which equity may administer a remedy where a mere pecuniary recovery would be inept or inadequate.

This rule applies where, by the owner’s contract, the use of his land is essential to a joint undertaking in which by such contract he has engaged, and to which he has therein agreed that the use of his land shall be devoted. Whether or not in such case, more especially in that of an alienee of the land with notice, the remedy will be limited to the injunctive power of the court need not be now decided; upon demurrer for lack of equity in the bill it is enough that the facts therein set forth exhibit a case of equitable cognizance. The fundamental thing to be borne in mind is that the right to this equitable remedy, which springs solely from the act of the owner of the land, arises whenever he has for his own benefit so dealt with it, or its use, as to create an equitable right in the one with whom he has dealt to have the land applied to the object to which the owner by his contract has devoted it. In fine, equity simply deals with the land in order to require its owner to make his contract just what he himself declared it to be. If, as in the present case, the land has been alienated, the law of notice preserves such remedy as against the alienee, as was pointed out by Chief-Justice Beasley in Brewer v. Marshall, 19 N. J. Eq. (4 C. E. Gr.) 537: “There is a class of cases,” he says, “in which equity will charge the conscience of an alienee of land with an agreement relating to such land, where clearly the agreement neither creates an easement nor runs with the title. This rule has been too frequently acted upon and is too deeply seated in our legal system to be passed by unnoticed or to be rejected as unsound. I regard it as a part of the law.”

Upon the ground of equitable cognizance stated, supplemented by this rule of the law of notice, the bill in the present case is good upon demurrer. I therefore vote to affirm the order of the court of chancery.

For affirmance — The Chibe-Justice, Garrison, Swayze, Reed, Trenchard, Parker, Bergen, Minturn, Bogert, Vre-DENBURGH, VROOM, C'ONGDON, SULLIVAN — 13.

For reversal — Voori-iees—1.


source: Caselaw Access Project

author: Parker, J.

license: Public Domain

text:
    Thomas H. Doutney, complainant and appellant, v. Frank D. Lambie, defendant and respondent.
    [Submitted July 11th, 1910.
    Decided January 12th, 1911.]
    1. Specific performance of a contract to purchase real estate will not be decreed if the marketability of the title depends on the establishment of a fact, and that fact is in reasonable doubt.
    2. AYhen the real estate in question is situate in another state and there is any fair doubt as to the law of that state on the question of marketability of title, the courts of this state should not decree specific performance as against an unwilling purchaser, especially where possible rights of strangers to the suit are involved in the determination.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson.
    This was a bill for specific performance of .a contract for exchange of real property. The defendant’s property is in this state, but complainant’s is in the city of New York in the district known as Morrisania. Defendant applied to a title guar-' antee companjr for a guaranty of complainant’s title, which that company refused unless the question of encroachment of the front wall of the building on Park avenue were excepted from the guaranty. Defendant not being satisfied with a guaranty on those terms, refused to accept complainant’s deed, and the present suit was brought to compel him to do so. The hearing was had before Vice-Chancellor Stevenson, who dismissed the bill on the ground that the title offered by complainant was unmarketable.

      Messrs. Roe & Runyon, for the appellant.

      Mr. Robert M. Boyd, Jr., for the respondent.
   The opinion of the court was delivered by

Parker, J.

Our examination of the case and briefs (there was no oral argument) satisfies us that the decree in the court below was correct. The question of marketability was one of fact, and related to the exact location of the line of Park avenue, on which complainant’s building fronted. If the line was where complainant’s witnesses put it, the building did not encroach upon the street, and the title was consequently good; if, on the other hand, it was where defendant’s-witnesses located it, there was an encroachment by the front wall, of the building of approximately two inches on the highway, which the city authorities might order removed at any time.

That such a condition of things, if existing in fact, would constitute a substantial objection to- the title if the land were in this state, cannot be doubted. The element of compensation for the expense of making over the front wall, if indeed that could be done without serious detriment to the property, was not in the case, complainant resting in his bill as drawn on a perfect title, going to. trial on that issue, and a subsequent amendment for the purpose of bringing it into the case being denied. The question for decision, therefore, was whether the complainant’s title was so plainly marketable as to require a court of equity in the exercise of a legal discretion, to decree specific performance.

In disposing of this question the vice-chancellor, following his own decisions in Barger v. Gery, 64 N. J. Eq. (19 Dick.) 263, and Potter v. Ogden, 68 N. J. Eq. (2 Robb.) 409, held “that where the alleged defect in the title was in respect of a fact, the title cannot be regarded as marketable, unless the proof in favor of the title as to the point of fact is so clear that a court of law would direct a verdict in favor of the title in case of a trial by a jury; and secondly, that it must also appear that the evidence which shows the title to be good, which establishes the facts on which a good title must rest, is of such a character that there cannot be any reasonable apprehension that such proof will not be forthcoming in the future for the protection of the purchaser.”

This rule is challenged by the appellant, but we need not pass upon its correctness because we do not find it necessary to invoke it in its entirety. In Fry Spec. Perf. § 253 et seq., the rule is laid down that the vendor must prove that his title is good be-j'-ond a reasonable doubt, and will not expose the defendant to litigation. Such was the character of proof required in Sturtevant v. Jaques, Mass. 523, to overcome the presumption of an outstanding beneficial interest. In Tillotson v. Gesner, 33 N. J. Eq. (6 Stew.) 313, decided by this court, the record showed deeds for a nominal consideration shortly before the entry of' judgments against the grantor, and it was held (at p. 333) that specific performance would not be decreed unless it were shown by ‘^strong proof” that the deeds were made bona fide and for a valuable consideration. It was further said in. that case: “Tbn purchaser .should have a title which shall enable him not only to hold his land, but to hold it in peace; and if he wishes to sell it, be reasonably sure that no flaw or doubt will come up to disturb its marketable value. The court cannot satisfactorily or conclusively settle a title in the absence of parties who are not before them in the suit to assert their estate or interest in the lands.” These propositions are both elementary and fundamental, and we need not go outside of them to affirm the decree below. Having examined the evidence, we are satisfied that to say the very least the question of encroachment is a doubtful one, and might well lead to troublesome and vexatious litigation in the future, which might be decided adversely to the owner and compel a substantial alteration of a large apartment building. This is sufficient to render the title unmarketable and to justify, if not require, a court of equity to refuse specific performance to a vendor. It is said that this is not a vendor’s suit because there is an exchange; but the fact that complainant was to get other property instead of money in exchange for his property, does not make him any the less a vendor of his own land.

The point is made that as the land in question is situate in the State of New York, the law of that.state controls on the question of marketability, and a number of decisions by the courts of that state are cited to show that the encroachment in question, if established as a fact, would not render the title unmarketable.

We do not find it necessary to go into a detailed review of those decisions, for it is obvious that our decision on a question of New York law would have no controlling effect on the courts of that state, which would be quite at liberty to take the contrary view in a subsequent litigation there; so that if we now held such an encroachment no barrier to marketability, and defendant had to take this title, he might be unable thereafter to make title to a purchaser. Hence we should not declare the title marketable, notwithstanding the encroachment, unless the decisions of the New York courts leave the matter substantially free from judicial doubt. We do not think that they do; and, on the contrary, two lawyers, who were examined in the case as expert witnesses on the New York law, testified that under .that law the title was unmarketable.

Under these circumstances a decree of specific performance concluding this defendant, but in no sense binding either on the city of New York as to the fact of encroachment, or on a subsequent purchaser as to either that fact or the law of marketability, would be eminently inequitable.

The decree of the court of chancery will be affirmed.

For affirmance — Tiie Chief-Justice, Garrison, Swayze, Trenciiard, Parker, Bergen, Yoori-iees, Bogert, YredenBURGH, YrOOM, CONGDON — 11.

For reversal — None.


text:
    Robert Boulanger et al., complainants-respondents, v. Sophie Hetzel et al., defendants-appellants.
    [Submitted and decided November 18th, 1910.]
    Ileirs-at-law seeking through the aid of the court of chancery to set aside a deed of land procured from their deceased ancestor by fraud and undue influence are not deprived of their standing for that purpose by the fact that the ancestor has executed an instrument purporting to be a will and to devise the same land to the grantees in the deed but which instrument is admittedly invalid for such purpose.
    On appeal from an order of the court of chancery overruling a demurrer to bill of complaint.

      Mr. Samuel A. Besson, for the appellant.
   The opinion of the court was delivered by

Parker, J.

The bill is brought by certain heirs-at-law of Marianne Obry, deceased, and seeks to have set aside two deeds made by her in her lifetime to the defendants, Sophie and Frank Hetzel, as having been procured by fraud and undue influence. The sole ground on which the demurrer, which was overruled below, is rested in this court is that “the court of chancery is without jurisdiction to grant the relief prayed for in the bill.” Counsel very properly does not deny that if the bill presented simply the case set forth above, the court of chancery would have full jurisdiction, but maintains that because the bill alleges, in addition, that after the deeds attacked were made, the decedent, through fraud, undue influence, and duress of said defendants, and while mentally incompetent to do so, made a paper-writing purporting to be a will, devising to the said defendants the same property described in the deeds, which paper has been offered for probate, but is awaiting adjudication by reason of a caveat filed by one of complainants; that complainants have thereby shown that they have no standing as heirs-at-law to attack the deeds, and can have none until (in the language óf counsel) the will, which complainants admit exists, is set aside. But this is manifestly not so, as complainants have made no such admission. On the contrary, they set up facts which necessarily negative the idea that there is any lawful will, and indicate that the paper in question is not the mil of Marianne Obry because of the fraud, undue influence, &c., set up in the bill; and this the demurrer necessarily admits. For the purposes of this demurrer, therefore, complainants stand as if no paper testamentary in form had ever been signed.

The order brought up will be affirmed, with costs.

For affirmance — Tim Ci-iief-Justice, Garrison, Swayze, Reed, Trenchard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgi-i, Vroom, Congdon — 13.

For reversal — None.


author: Bergen, J.

text:
    The Mayor and Council of the City of Bayonne and The New York and New Jersey Water Company, complainants-respondents, v. The Mayor and Council of the Borough of North Arlington, defendants-appellants.
    [Submitted November 17th, 1910.
    Decided March 6th, 1911.]
    1. Where a corporation asks a court of equity to restrain a municipality from interfering with it in the excavation of a public highway for the purpose of laying a water pipe across it as a part of a pipe line system, the corporation must show a legal right to use the street for the purpose intended.
    2. The right to regulate is not limited to mere supervision of the method of excavation, but implies the power to prohibit the disturbance of the public easement by one who has no lawful right to do it.
    3. A permit to lay water pipes in a public street can only be claimed by one legally entitled to use the street for such purpose, and if one, without such right, attempts to excavate a street for such purpose a court of equity will not restrain a municipality having the power to regulate the use of streets from forcibly preventing the disturbance of the public easement.
    4. Assuming that a permit should be granted, upon reasonable conditions. to one lawfully entitled to lay such pipe in a public highway, the prevention of such use of the highway by one without a legal right is a lawful exercise of the power to regulate the use of such a highway.
    On appeals from an order and decrees of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 77 N. J. Eq. (7 Buch.) 166.

      Mr. John N. Bell and Mr. Warren Dixon, for the appellants.

      Mr. Daniel J. Murray, for the city of Bayonne, and Messrs. Collins & Corbin, for the New York and New Jersey Water Company, respondents.
   The opinion of the court was delivered by

Bergen, J.

By an agreement dated September 6th, 1894, William DeH. Washington and Turner A. Beall entered into a contract with the city of Bayonne to furnish water to the city for public and domestic uses, to be delivered into a system of pipes then constructed, or to be constructed, by the city; under this agreement the pipes required were laid by the city, and the contract having-been assigned to it April 30th, 1895, by Washington and Beall, the water contracted for has since been supplied by the New York and New Jersey Water Company, one of the complainants in this suit.

In June, 1904, the common council of the city of Bayonne adopted an ordinance which was duly approved by the mayor, granting to the' complainant water company the right to lay and operate water mains, not exceeding two, across the city "to and continuing under the waters of the Kill-von-Kull to the boundary line of this city,” in consideration of an offer by the New York and New Jersey Water Company that it would at its own cost and expense and without the expenditure of any money by the city, lay water mains in and through certain streets and avenues of the city for the purpose of "conveying water to and throughout the city as well as beyond the city, and also erect and maintain, at its own cost,” a certain number of fire hydrants, and furnish therefrom water without cost to the city "for the purpose of extinguishing fires and street sprinkling purposes,” and pay to the city a sum equal to $5 per million gallons for each and every million gallons of water “that may be conveyed by said mains beyond the city.” This ordinance was duly accepted by the water company on June 28th, 1904, and was by it, November 30th, 1904, assigned to the Biehmond Water Company, the latter company being subsequently succeeded by the Hudson County Water Company, by which the pipe across the city to the Killvon-Kull was laid. In May, 1905, the Hudson County Water Company entered into a contract with the city of New York under which it agreed to furnish water from New Jersey to the borough of Biehmond, Staten Island, in the manner described in the opinion written for this court by Chancellor (then Mr. Justice) Pitney, in McCarter, Attorney-General, v. Hudson County Water Co., 70 N. J. Eq. (4 Robb.) 695, but as the result in that case was a decree enjoining the Hudson County Water Company from carrying or transporting any of the waters of the Passaic river out of the State of New Jersey, that scheme failed.

The New York and New Jersey Water Company are now installing a pipe-line system from Belleville to the city line of Bayonne, and there propose to connect it with the main or mains which run through the city of Bayonne to the Kill-von-Kull, laid by the Hudson County Water Company as part of its former plan to carry water out of this state, and the replication, filed in this cause by the complainants, admits that if any water be supplied from any new or additional source than that which is now being supplied to the city of Bayonne by the water company, . it will be subterranean water pumped from wells.

By an agreement, dated June fth, 1909, between the New York and New Jersey Water Company and the Hudson County Water Company, it was agreed that the water to be furnished for delivery in the city of New York through its pipes under the Kill-von-Kull might be

“subterranean -water drawn from wells owned or controlled by the party of the second part at Belleville, New Jersey, or elsewhere, and shall not be mixed or commingled with any water from surface sources in the State of New Jersey unless the said state, by action of its legislature or its courts, or otherwise, shall permit the transportation from the state of water so commingled.”

The right of the complainants to lay the pipe in question is rested upon the statute of 1888 (Gen. Stat. p. 2210 § 405), which authorizes any city to contract with a water company or other company, contractor or contractors, for furnishing a supply of water “for the purpose of extinguishing fires and such other lawful uses and purposes as may be deemed necessary.” That under this act the city of Bayonne may _ contract for a supply of water for the purposes authorized by it was determined in Brady v. Bayonne, 57 N. J. Law (28 Vr.) 379, but the act by its terms limits the power to lawful uses and purposes, and a contract requiring the laying of a pipe of sufficient size to supply not only the contracting city but a municipality of an adjoining state, without authority of law to use it, for the purpose of exporting water out of the state, cannot be considered a contract limited to supplying the contracting city with a supply of water for the purpose of extinguishing fires and other lawful uses and purposes, because it compels and authorizes a conduit larger than the needs of the city demand.

All of our statutes conferring the power to lay pipes in the public highways have reference to the supplying of municipalities within this state, and that it is against the public policy of the state to export any part of our potable water to another state has been manifested by adverse legislation. P. L. 1905 p. 461; P. L. 1910 p. 148. If the right of a water company to burden the public easement by laying water pipes or mains in the street of one municipality depends upon a contract with another municipality to supply it with water, it is subject to the legal right of the contracting city to make the contract relied on, and the city of Bayonne has shown no legislative authority to contract for a supply of water beyond its own need, and complainants have not called our attention to any statute which authorizes Bayonne to contract for the laying of pipes, in adjacent municipalities, sufficiently large to supply water to the borough of Richmond. If the city of Bayonne was attempting to condemn lands for the purpose of providing a supply of water for the borough of Richmond could such a proceeding be sustained ? We think not, because it has no power to contract for land for such use and could not make any legal attempt to agree with the owner, and, therefore, the power of eminent domain which the city conferred upon the water company in aid of the present contract will not support or strengthen that part of it which provided for supplying the borough of Richmond.

The facts displayed in this record lead to but one conclusion, and that is that the contract under which the water company is laying its main from Belleville to- Bayonne, and there connecting it with the pipe or main of the Hudson County Water Company leading to the Kill-von-Kull, has for its principal object the transportation of subterranean waters from this state to the State of New York without, so far as we can discover, any lawful right to do so. Such right is not claimed in the brief of the counsel of complainants, but on the contrary it feebly disavows such purpose, and urges that the defendants have utterly failed to prove that it is intended to transport water to Staten Island or elsewhere out of the. State of New Jersey.

The present controversy arises over the refusal of the mayor of North Arlington to allow the water company to lay its water main, a part of the proposed system, across a highway in the borough of North Arlington known as the Eiver road. Among the powers conferred upon the borough of North Arlington (P. L. 1897 p. 285 § 28) is that of passing and enforcing ordinances

“to prescribe the manner in which 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,”

and under that power the common council of North Arlington adopted an ordinance which declared

“that no person or corporation shall dig up, under, over or through the public places, avenues, streets or highways of said borough, or upon 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.”

Complying with this ordinance, and on January 5th, 1910, the defendant water company filed with the mayor of North Arlington an application for a permit, which, after reciting that the water company had a contract for supplying the city of Bayonne with water, and was then engaged in building a pipe line for that purpose which would necessarily cross Eiver road and two other avenues in the borough, asked for a permit to dig up and open Eiver road

"for the object of laying said water pipe across and under the same * * * in such manner as not to interfere with public travel or with any present constructions in or under the road.”

This the mayor refused

“because the resolution of the city of Bayonne, under which you claim to be working, which provides that the pipe be of an estimated capacity sufficient for the present needs and future 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 River road, Kearny avenue and Schuyler avenue to the city of Bayonne, and thence to the Kill-von-Kull, and tinder the same to the borough of Richmond, in the city of New York.”

Notwithstanding the refusal of such permit, the water company undertook to lay the main, and such action being prevented by the physical opposition of the municipal authorities, the bill of complaint was filed in this cause and a preliminary injunction ordered, restraining the municipality from interfering with the company in the laying of the pipe. From this order an appeal was taken, pending which the carrying out of the order for a preliminary injunction was suspended by this court, and the cause then proceeded to final hearing, resulting in a decree for a permanent injunction preventing such interference, from which decree the defendants also appealed. As the disposition of one appeal will control the other, they were argued together and will be considered and disposed of as one.

The learned vice-chancellor was of opinion that the conditions which may be imposed in granting such an application are those only which are necessary for the proper protection of the borough and its public highways, and that it “has no right to impose conditions which do not tend towards the protection of the interests which the borough has as guardian of the public easement in its highways,” and also that the reasons .assigned by the mayor were not sound in law, nor well founded in fact, and that it was an arrogation of power not within the scope of the duties of the mayor to say that no potable waters which originate in New Jersey shall be transferred beyond its boundaries. We think the learned vice-chancellor accorded to the mayor’s objection a too limited construction, and that it should be taken to rest upon the ground that the water company had no lawful right to disturb the public easement because the laying of the pipe was not justified by any legal right.

It cannot be successfully contended that any person or corporation may excavate a public highway and place therein pipes or conduits without legislative or municipal authority, and so it would not be consistent with the principles of equity jurisprudence to say to any municipality, as was in effect said by the learned -vice-chancellor, that whether the purpose for which a permit is sought is lawful or not is of no concern to it.

The right to a permit which may be imposed under a power granted to regulate streets is limited, as was said by Mr. Justice Swayze in Cook v. North Bergen, 72 N. J. Law (43 Vr.) 119; affirmed in this court on his opinion (73 N. J. Law (44 Vr.) 818), “to anyone legally entitled thereto,” and a power to regulate includes by implication the power to prohibit the violation of proper regulations, otherwise the power of regulation would be nugatory; therefore, assuming that a permit should be granted upon reasonable conditions to one lawfully entitled to lay a pipe in a public highway, the prevention of the use of the highway by one without a legal right is a lawful exercise of the power to regulate. That it is the object of the water company to use the pipe in question for the purpose of transporting potable water from this state to the city of New York, which is at present forbidden by our statutes, is plainly shown by the record in this case. The application filed by the water company recites as a ground for its right to a permit for laying the pipe, that it had a contract for supplying the city of Bayonne with pure and wholesome water, but it omits to state the whole truth, as will appear from an examination of the contract upon which it rests its right to the permit. The contract is made up of an ordinance, adopted by the city, accepted and made a contract by the water company, and a resolution adopted by the city October 5th, 1909, according to which the water company was notified by the city of Bayonne that it required the construction

“of a second or duplicate main to extend from Kearny and Belleville, New Jersey, to Avenue B and 56th street, Bayonne, and there to be connected with the mains of the city as well as with the main of the company leading therefrom to Kill-von-Kull, and to be used in supplying the city of Bayonne in case of any emergency requiring the temporary closing down of the company’s present supply main or interruption of the present supply, and to be not less than thirty inches in diameter (except at railroad and river crossings) and furnishing ‘an estimate capacity sufficient for the present needs and future requirements of the city of Bayonne as well as for the proposed service of the borough of Richmond,’ as recommended by the New York Fire Insurance Exchange.”

It is under this resolution, duly accepted and made a contract between the city and the company, that the right to lay the present pipe is sought to be sustained. The agreement expressly provides that the new main shall be connected with the city main, and also with the main of the company leading to the Kill-von-Kull. While the main from the northerly boundary of the city to the Kill-von-Kull is owned by the Hudson County Water Company, and the proposed supply pipe by the New York and New Jersey Wafer Company, both corporations are managed and controlled by kindred interests, and that it is the purpose of the two corporations, if possible, to obtain and carry to New York, for merchandise, a part of the potable water of this state, is, as we have said, clearly demonstrated. That the principal purpose of the contract is not to furnish the city of Bayonne with an emergency supply provided for by the contract is manifest, nor is there any proof that it is needed, the only apparent consideration to the city being the supplying to the city water for municipal uses free of charge, and the tolls provided for in the agreement of $5 per million gallons, which latter profit it can only reap when water is taken out of the state, and this situation deprives it of any substantial interest in the contract except as an assistant in the furtherance of the proposed scheme to transport the water from this state to New York.

We are of opinion that under this contract the provision for an emergency supply is' a subterfuge to cover the real purpose of the complainants, but granting that the city of Bayonne is entitled to lay a pipe through the borough of North Arlington for the purpose of providing Bayonne with water for an emergency supply, or other lawful purpose, its right to do so is limited to the installation of a pipe reasonably sufficient for that purpose, and it cannot take advantage of such right to lay at the same time a pipe of a capacity sufficient to supply Bayonne and also the borough of Richmond in the State of New York, any more than it would have the right to put down two pipes in the trench proposed, one to carry water to Bayonne and the other to convey water out of the state, and so far as the contract requires the laying of a pipe sufficiently large to supply the borough of Richmond, it is ultra vires.

It is urged that as water cannot be lawfully transported out of the state, it will not be inferred that a wrong is intended, and therefore it is not unlawful to lay a pipe sufficiently large to supply the borough of Richmond as well as the city of Bayonne in anticipation of the removal of the present legal prohibition, but that begs the question, which is the present right of the complainants to use the highway in North Arlington in the manner proposed under the contract invoked in support of that right, for if a pipe of the size and for the purpose contracted for is not being installed by virtue of a present legal authority, the complainants have no standing in a court of equity. If the present decree and order be affirmed, a court of equity, instead of preventing, is aiding in the furtherance of a plan by which water may be transported from this state to another without sanction of law therefor, but by virtue of a contract with the city of Bayonne containing provisions for the supply of the borough of Richmond which the city has no power to make.

As complainants have not shown that they are entitled to excavate streets of North Arlington for the purpose of laying a pipe of sufficient capacity to supply the borough of Richmond with water, in addition to the supply that the city of Bayonne may need and which it may lawfully contract for, a court of equity should not exercise its power of injunction to assist them.

The order for the preliminary injunction and also the final decree should be reversed, and the bill of eumplaint dismissed, with costs, and it is so ordered.

No. 41 — Order—

For affirmance — Garrison, Swayze, Reed, Voorhees — 4.

For reversal — The Chiee-Justioe, Trenchard, Parker, Bergen, Minturn, Bogert, Vredenburgh, Vroom, Congdon —9.

No. 106 — Final decree—

For affirmance — Garrison, Swayze, Eeed, Voorhees — i.

For reversal — The Ciiiee-Justice, T'renchaed, Parker, Bergen, Minturn, Bogert, Vredenburgh, Vroom, Congdon —9.


author: Per Curtam.

text:
    John Schuhardt, complainant and respondent, v. Catherine Wittcke, defendant and appellant.
    [Submitted December 5th, 1910.
    Decided January 12th, 1911.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported in 76 N. J. Fq. (6 Buch.) 119.

      Mr. Marshall Van Winhle, for the respondent.

      Mr. Warren Dixon, for the appellant.
   Per Curtam.

The decree appealed from is affirmed, for the reasons expressed in the opinion of Vice-Chancellor Garrison.

For affirmance• — -The Ciiiee-Justice, Garrison, Swayze, Eeed, Trenci-iard, Parker, Bergen, Voorhees, Bogert, Vredenburgii, Congdon — 11.

For reversal — None.


author: Per Curiam.

text:
    Mary Williams, appellant, v. John L. Young, respondent.
    [Argued November 17th, 1910.
    Decided November 21st, 1910.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning.

      Mr. John J. Crandall and Mr. Herbert N. Drake, for the appellant.

      Mr. Clarence L. Cole, for the respondent.
   Per Curiam.

The decree appealed from is affirmed for the ieasons stated in the opinion of Vice-Chancellor Learning.

For affirmance — Ti-ie Chiee-Justice, Garrison, Swayze, Eeed, Trenchard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgh, Vroom, Congdon — 13.

For reversal — None.


text:
    Cumberland Lumber Company et al., respondents, v. Clinton Hill Lumber and Manufacturing Company, appellant.
    [Argued November 22d, 1910.
    Decided March 6th, 1911.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery.

      Messrs. Coult &. Smith, for the respondents.

      Mr. Frank E. Bradner, for the appellants.
   Per Curiam.

The decree appealed from is affirmed for the reasons stated in the opinion of Vice-Chancellor Emery.

For affirmance — The Chief-Justice, Garrison, Swayze, Reed, Trenchard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgh, Vroom, Congdon — -13.

For reversal — None.


text:
    Frank C. Edwards et al., respondents, v. Edward Oakes et al., appellants.
    [Argued November 23d, 1910.
    Decided March 6th, 1911.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson.

      Mr. Albert V. Pedrick, for the respondents.

      Mr. Edward Oakes, for the appellants.
   Per Curiam.

The decree appealed from is affirmed for the reasons stated in the opinion of Vice-Chancellor Stevenson.

' For affirmance — The Chiee-Justtce, Garrison, Swayze, Reed, Trenoiiard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgi-i, Vroom, Congdon — 13.

For reversal — None.


text:
    Mary Fraser, respondent, v. James K. Fraser, appellant.
    [Submitted November 23d, 1910.
    Decided March 6th, 1911.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Walker, whose opinion is reported in 77 N. J. Eq. (7 Buch.) 206.

      Messrs. Roberson & Demurest, for the respondent.

      Mr. Scott Scammell, for the appellant.
   Per Curiam.

The decree appealed from is affirmed for the reasons stated in the opinion of Vice-Chancellor Walker.

For affirmance — Ti-ie Ci-iiee-Justice, Garrison, Swayze, Reed, Trenchabd, Parker, Bergen, Voori-iees, Minturn, Bogert, Vredenburgii, Congdon, Sullivan — -13.

For reversal — None.


text:
    Harvey K. Partridge, receiver, respondent, v. Mechanics National Bank of Burlington, appellant.
    [Argued November 23d, 1910.
    Decided March 6th, 1911.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Walker, whose opinion is reported in 77 N. J. Eq. (7 Buch.) 208.

      Messrs. Bleakly & Stockwell, for the respondent.

      Mr. Ernest Watts, for the appellant.
   Per Curiam.

The decree appealed from is affirmed for the- reasons stated in the opinion of Vice-Chancellor Walker.

For affirmance — The Chtee-Justice, Garrison, Swayze, Reed, Trenchard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgh, Vroom, Congdon — 13.

For reversal — None.


text:
    Atlantic City Railroad Company, respondent, v. R. Francis Wood, appellant.
    [Argued December 1st and 2d, 1910.
    Decided March 6th, 1911.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Reed.

      Mr. Gilbert Collins, for the appellant.

      Mr. Robert H. McCarter, for the respondent.
   Per Curiam.

The decree appealed from is affirmed for the reasons stated in the opinion of Vice-Chancellor Reed.

For affirmance — Ti-ie Chiei?-Justice, Garrison, Swayze, Trenchard, Bergen, Voorhees, Minturn, Bogert, Vroom, CONGDON — 10.

For reversal — Parker, Vredenburgh — 2.


text:
    First Italian Building and Loan Association, respondent, v. Rosina M. DeNiscia et al., appellants.
    [Argued December 2d, 1910.
    Decided March 6th, 1911.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens.

      Messrs. Riker & Riker, for the respondent.

      Mr. William A. Lord, for the appellants.
   Per Curiam.

The decree appealed from is affirmed for the reasons stated in the opinion of Vice-Chancellor Stevens.

For affirmance — The Chiee-Justice, Garrison, Swayze, Reed, Trenchard, Parker, Bergen, Voorhbes, Minturn, Bo- ■ gert, Vredenburgh, Vroom, Congdon — 13.

For reversal — None.


text:
    Alexander M. Taylor, respondent, v. Public Service Corporation of New Jersey, appellant.
    [Argued December 2d, 1910.
    Decided March 6th, 1911.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported in 75 N. J. Eq. (5 Buch.) 371.

      Mr. George P. Rust, for the respondent.

      Mr. L. D. Howard Gilmour, for the appellant.
   Per Curiam.

The decree appealed from is affirmed for the reasons stated in the opinion of Vice-Chancellor Garrison.

For affirmance — The Chiee-Justice, Garrison, Swayze, Eeed, Trenchard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgh, Vroom, Oongdon — 13.

For reversal — None.


text:
    The Atlantic Refining Company, appellant, v. Josiah Stokes et al., respondents.
    [Submitted December 5th, 1910.
    Decided March 6th, 1911.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 77 N. J. Eq. (7 Buck.) 119.

      Messrs. French & Richards, for the appellant.

      Messrs. Wilson & Carr, for the respondents.
   Per Curiam.

The decree appealed from is affirmed for the reasons stated in the opinion of Vice-Chancellor Learning.

For affirmance — -The Chief-Justice, Garrison, Swayze, Reed, Trenchard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgh, Vroom, Congdon — 13.

For reversal — None.


text:
    Esther May Anderson Bennett, respondent, v. The Association to Provide and Maintain a Home for the Friendless, appellant.
    [Submitted December 5th, 1910.
    Decided March 6th, 1911.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens.

      Mr. Leo Stein, for the respondent.

      Mr. Frank Benjamm, for the appellant.
   Per Curiam.

The decree appealed from is affirmed for the reasons stated in the opinion of Vice-Chancellor Stevens.

For affirmance — Ti-ie Chiee-Justice, Garrison, Swayze, Beed, Trenchard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgi-i, Vroom, Congdon, Sullivan — 14.

For reversal — None.


text:
    Jacob Cartun et al., appellants, v. Joseph Myers et al., respondents.
    [Submitted December 5th, 1910.
    Decided March 6th, 1911.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning.

      Mr. George A. Bourgeois, for the appellant.

      Messrs. French & Richards, for the respondents.
   Per Curtam.

The decree appealed from is affirmed for the reasons stated in the opinion of Vice-Chancellor Learning.

For affirmance — Ti-ie Chtee-Justice, Garrison, Swathe, Eeed, Trenci-iakd, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgii, Vroom, Congdon, Sullivan — 14.

For reversal — Sone.


text:
    George W. Clark, respondent, v. Maggie A. Clark et al., appellants.
    [Submitted December 5tk, 1910.
    Decided March 6th, 1911.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell.

      Messrs. Reed & Coddington, for the respondent,

      Mr. George W. V. Moy, for the appellants.
   Per Curiam.

The decree appealed from is affirmed for the reasons stated in the opinion of Vice-Chancellor Howell.

For affirmance — The Ci-iier-Justice, Garrison, Swayze, Seed, Trenohard, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgh, Vroom, Congdon, Sullivan — 14.

For reversal — None.


text:
    Jacob L. Krah et al., respondents, v. Henry Radcliffe et al., appellants.
    [Submitted December 5th, 1910.
    Decided March 6th, 1911.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 75 N. J. Eq. (5 Buch.) 189.

      Messrs. Osborne & Astley, for the respondents.

      Mr. Frank E. Bradner, for the appellants.
   Per Curiam.

The decree appealed from is affirmed for the reasons stated in the opinion of Vice-Chancellor Howell.

For affirmance — The Chiee-Justice, Garrison, Sway,ze, Eeed, Trenchard, Parker, Bergen, Voori-iees, Minturn, Bogert, Vredenburgh, Vroom, Congdon — 13.

For reversal — None.


text:
    Lionel C. Simpson Plumbing and Heating Company, respondent, v. Edward Geschke, appellant.
    [Submitted December 5th, 1910.
    Decided March 6th, 1911.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 76 N. J. Eq. (6 Buch.) 475.

      Mr. Howard L. Miller, for the respondent.

      Mr. Ralph W. E. Dongas, for the appellant.
   Per Curiam.

The decree appealed from is affirmed for the reasons stated in the opinion of Vice-Chancellor Learning.

For affirmance — Ti-ie Chiee-Justice, Garrison, Swayze. Reed, Trenciiakd, Parker, Bergen, ARioehees, Mjnturn, Bogert, ATjedenburgh, Vroom, Congdon — 13.

For reversal — None.

CASES ADJUDGED IN THE COURT OF CHANCERY or THE STATE OF NEW JERSEY, FEBRUARY TERM, 1911.


author: Embry, Y. C.

text:
    Maiilon Pitney, Chancellor.
    John R. Emery, Frederic W. Stevens, Eugene Stevenson, Lindley M. Garrison, Edmund B. Beaming, James E. Howell and Edwin E. Walker, Vice-Chancellors.
    Anna P. Coffin v. William W. Watson et al.
    [Decided March 9th, 1911.]
    1. In construing a will, the object to be attained is to determine the intent of the testator as gathered from the whole document as applied to the testator’s situation. ■

      2. On the question whether provisions for maintenance of children are trusts imposed on a parent, where no trusts are declared in express terms, the general rule is that, if the language in an instrument is sufficient to clearly express an intention that property shall be held in trust for the maintenance of children, the court will enforce the trust.
    3. Where a bequest is made so that the legatee may use or dispose of the income for the benefit of himself and the maintenance or education of his children, the trust is in general created for the children in common with the interest of the parent.
    4. Where a clause in a will directed the trustees to pay the testator’s wife out of the income of his estate during her natural life, and at suitable periods, such sums of money that she should “want or require” for her comfortable maintenance, and, during the minority of his children, for the support, maintenance, and education of such children also, the power and duty of deciding upon the amount wanted or required for the support and maintenance of the widow and minor children was intended to be upon the executors as trustees rather than upon the widow, so that the words “want or require” are an expression of necessity, equivalent to “need,” and not to “wish or desire.”
    Heard on bill, answer and stipulation.

      Mr. Ralph E. Lum (Messrs. Lum, Tamblyn & Colyer, solicitors), for the complainant.

      Messrs. Riker & Riker, for the defendants.
   This suit involves the construction of the will of William P. Coffin.

The testator, who died in 1902, after first directing the payment of his debts, devised and bequeathed by the second clause of his will all his estate to his executors and trustees, in trust for the purposes specified in his will, with authority to sell. Then follows the clause now in question;

“Third. It is my will and I do order and direct my said executors and trustees to pay to my wife, out of the income of my estate, during her natural life and at suitable periods, such sums of money as she shall want or require for her comfortable support and maintenance, and during the minority of my children, for the support, maintenance and education of my children also.”

■ The testator’s widow -and two children, both minors, survived him, and his widow has also one child by a previous marriage. Tbe executors have not paid to the widow the entire income of the estate, but have made monthly payments, gradually increasing from $175 per month to $350 per month, besides some extra allowances amounting to about $700. At their last accounting, and after making these payments, they had in hand a balance of income amounting to $5,666.43. The widow demanded of the executors the payment to her of this entire balance in hand, - and, the executors refusing to make the payment, this bill is filed by the widow against the executors and the infant children. A sister of testator, who is an annuitant under .a codicil to the will, is also made party defendant. By her bill the claim of the widow to the entire income is put on two grounds — first, that under the terms of the will she is entitled to receive from the executors all of the income of the estate. This claim is set out in paragraph 5 of the bill as an absolute claim to receive all of the income, and, by the same paragraph, the demand upon the executors, which was refused, seems to have been upon this claim, which does not appear to have been qualified or accompanied with any notice that it was demanded as being required for the purposes of support and maintenance of herself and the testator’s children.

As to this claim, the executors by their answer, admitting that complainant has demanded the entire income and that they have refused to pay it, insist that she is entitled to receive from them so much of the income as they in their just discretion as trustees deem sufficient for her comfortable support and maintenance, and during the minority of the children for the support and education of the children.

The complainant’s second claim to the payment, set out in paragraph 6 of the bill, is that the allowances made to her by the executors are not sufficient for her comfortable support and maintenance and the proper support, maintenance and education of her children, and that she requires all of the income for these purposes. As to this claim, the executors answer that in their judgment the amount now being paid is sufficient. At the hearing a stipulation was filed to the effect that no proof should be offered by either party as to the issues raised on this sixth paragraph of the bill, and the answer thereto, and that any decree in this cause should be without prejudice to the complainant’s present or future claim that she did not receive sufficient income for the purposes of support of herself and the testator’s children.

The cause is now heard on the bill, answer and stipulation, without further proof, the parties desiring first to settle the claim of complainant as based on the absolute and unqualified right to demand of the executors and receive from them the entire income, without regard to any discretion of the executors as to the amount of the payments.

The other provisions of the will and codicil, which are referred to on both sides as bearing on the construction of the disputed third clause, are substantially as follows:

After directing the above payment “out of the income,” the testator orders that should his wife at any time desire a dwelling-house built for occupancy, to purchase the necessary land' and have the house built at such place as his wife desires “out of the principal of my estate,” at such expense as they deem advisable, to be used by the wife free of rent, but to remain property of the estate. Then follow directions (paragraph 4) that when his son, Earl P. Coffin, reaches twenty-one “$5,000 be given to him of my estate,” when he is twentj^-five “$5,000 more be given to him out of my estate,” and “when he is thirty years old $5,000 more.” Directions for similar payments “out of my estate” are made (paragraph 5) for his daughter. The sixth clause directs,

“During tlie life of my said wife and even after her death until my children are at least thirty years old, it is my will that the residue and remainder of roy estate remain intact, the income thereof to be used as heretofore provided during the life of my wife and after her death to be paid to my children in convenient payments during each year.”

The subsequent provisions of the will relate to the payment to the children of their respective shares of the estate, in the event of the death of his wife after the children reach thirty years, or their arrival at that age after his wife’s death. These payments of the children’s shares are made dependent on the judgment of the executors as to their character and ability to manage their share of the estate. A codicil to the will directs that the executors and trustees pay to the testator’s sister, Isabel A. Coffin, “out of my estate, such sums as she may require towards her support during her natural life, not exceeding $200 per year.” Neither the will nor the codicil contains any express direction for the accumulation of income unpaid or unappropriated, or express provision for the disposition of any such accumulation.

Embry, Y. C.

(after 'statement of issues).

The claim that the wife is entitled under the third clause to receive the entire income if she demands it, is based mainly on the contentions that payment is to be made her out of the income, of “such sums of money as she shall' want or require;” that the primary meaning of the words “want or require” as used by the testator, is equivalent to “wish for” or “demand,” and is not equivalent to “need,” and that the words should be taken in this primary sense, unless they be considered ambiguous, in which case the other portions of the will may be considered as throwing light on the testator’s meaning in using them.

The other provisions relied on to support this meaning are the failure to provide for accumulations, and the direction in the sixth clause that during the life of his wife, and until the children are thirty years old, the income (of the residue of his estate) is "to be used as heretofore provided during the life of my wife, and after her death to be paid to my children in convenient payments during each year.” These provisions, it is insisted, contemplate the use of the entire income during the wife’s life, and the payment to the children of the entire income after her death, and are inconsistent with the right to accumulate any portion of the income by the executors during either period.

The executors, on the other hand, insist that the words “want or require,” as here used by the testator, are equivalent to “need” or “be necessary” for certain purposes specified, and that a consideration of the other provisions of the will, in connection with the third clause, support this contention.’ These are — that in the same clause the different word “desire” is expressly used in reference to the providing of a house for the wife; that the same word “require” is used in the codicil, directing the executors to pay to his sister “out of my estate, such sums as she may require towards her support, not exceeding $200 per year,” and as. to the argument based on the failure to expressly provide for accumulations of interest or their disposition, it is answered that such accumulations are possible and will arise even under complainant’s construction, if all the income is not demanded, and that any accumulations, from whatever cause arising, are included in the “residue” of the estate disposed of by the sixth clause.

Many citations of cases have been made bearing upon the construction of the words “want” or “require” as applied to the circumstances of special cases. Some of these arise under contracts, others under- statutes, and others are manifestly controlled by the special circumstances of the case in which the purpose or object of the provisions controlled the meaning. I shall not cite or examine these in detail. The case in our courts cited as a precedent on the construction of the words is that of Corlies v. Allen (1882), 36 N. J. Eq. (9 Stew.) 100. In this case the testator had devised the residue of his estate to his executors, in trust, for the use and benefit of his daughter for life, the interest to be paid to her “as she may need or require,” and after her death bequeathed the residue with accumulations to third persons. Chancellor Runyon held that the words “need or require,” as here used, were equivalent to “as she may need or her necessities require,” and that the daughter was entitled only to so much of the fund as the executors might deem reasonably necessary. The chancellor, for this construction, relied .upon the testator’s use of the word “require” as being substantially equivalent to “need,” and upon the express direction for accumulations, and upon the fact that the other directions for payment of income were absolute. The circumstance that the life tenant was of weak mind also had weight.

The question in each will is the intention of the testator as gathered from the whole document, as applied to the situation of the testator, whose use of the words is in question.

In the present case one feature of the gift to the wife is controlling and affects the gift to her, with a trust in which she together with testator’s minor children are the 'beneficiaries. The second clause devises the whole estate to the executors in trust for the purposes specified in his will, and the third clause, proceeding to declare one of these purposes, directs payments to the wife for her comfortable support and maintenance, and the support, maintenance and education of the testator’s minor children, of whom there were two. These directions of the objects for which the payments were to be made to the wife, were not mere indications of the motives of the testator in directing the payments to the wife, but were directions as to the purpose for which she was to receive them and the disposition of the income when received by her.

Upon the question whether provisions for maintenance of children are trusts imposed on a parent where no trusts are- declared in express terms, the general rule is that if the language is sufficient to clearly express the intention that it should be held in trust for maintenance, the court will enforce the trust. 2 Pom. Eq. Jur. § 1012, and cases cited in notes. And where a bequest is made so that the legatee may use or dispose of the income for the benefit of himself and the maintenance or education of his children, a trust is in general created for the children in common with the interest of the parent. Ibid., citing Woods v. Woods, 1 Myl. & C. 401, and several other English cases. In a later case, In re Booth (1894), 2 Ch. 282, where a testator gave the residue of his estate to executors in trust (among other things) to pay the income to his wife “for her use and benefit and for the maintenance and education of my children,” it was held that the wife took the income subject to a trust for the maintenance and education of the children, and that the trust was not limited to children under twenty-one or unmarried.

In the present case the directions as to its disposition were so connected with the gift of the income as to constitute a trust for the wife and minor children in so much of the income as “she wanted or required” for the purposes specified. Suppose the widow, after receiving the income, should fail to maintain the minor children, can there be any doubt that such maintenance would be enforced against her as a trust upon which the money was received? In Chase v. Chase, 2 Allen 101, the will created a trust fund with directions to pay the income yearly 'to the testator’s son “for the support of himself and his family and the education of his children,” and it was held that the income when received by the son is taken in trust, and his wife and children can enforce its due appropriation in equity. Chief-Justice Bigelow says: “The adjudications recognize the rule that where income arising' from property is left to a person for the maintenance of children, he will be entitled to receive it for that purpose only so long as he continues properly to maintain them,” and that it can make no difference that the person who is to receive the income also has a beneficial interest in it for his own support.

If I am correct in reference to the trust intended to be imposed on the sums to be paid out of the income, the issue in reference to construction would seem to be narrowed to the point whether the testator, in creating this trust for mainteriance from sums to be paid out of the income, intended to impose on the executors the duty of determining the amount to be paid to the widow for the purposes of the trust as being “such sums as she may want or require,” or whether this duty was intended to be on the widow. If the duty of trustees in relation to determining the amount “wanted or required” for the purpose of maintenance was imposed on the executors, then the words “as she may want or require” are used as equivalent to “as she may need.” If, on the other hand, this duty of a trustee was intended to be imposed on the wife, then the words “as she may want or require” are equivalent to “as she may wish or desire” or “ask for,” and the amount to be paid out of the income for the trust purposes is left to the honest discretion of the wife, which, in the absence of bad faith, could not be questioned by the executors.

The decision of the question is not free from difficulty', but on the whole scope of the will and its application, the better view is, I think, that the power and duty of deciding upon the amount wanted or required for the purposes of the support and maintenance of the widow and minor children of the testator was intended to be upon the executors as trustees rather than upon the widow.

This conclusion is reached mainly in view of the facts — first, that the testator had already constituted the executors trustees of his entire estate to carry out all the purposes specified in his will; second, that the payments for support and maintenance are to be made by them “out of the income” already in their hands as trustees, and are not directions to pay the entire income; third, that the wife is not expressly declared to be entitled to receive all the income, but is to receive only sums which are limited to certain purposes, and fourth, that no express trust is imposed on the wife, although it is clear that she receives the income for the trust purposes of maintenance. The wife’s duty and power as trustee was intended by the testator to relate only to the disposition of the money when received. The general direction, giving all his estate, which includes both principal and interest, to the executors, in trust, for purposes thereafter declared, is a very weighty, if not controlling, reason for concluding that these trusts of determining the amount required for maintenance, so far as they do not appear to be taken away from the executors and imposed on someone else, should remain with the executors.

The contention that, by reason of there being no express disposition of any accumulated surplus of income, it must be considered that there was to be no surplus, and therefore the widow must be entitled to all, is fully answered, I think, by the facts — - first, that if the widow did not, in fact, demand all the income, there would be a surplus, and second, that any surplus income would be taken to pay the bequests to the son and daughter which are to be paid “out of my estate,” not mentioning, as in the case of the other bequests, whether from the principal or income.

My present view is that the decision of the executors as to the amount required is not final, but is subject to review, and the practice in cases where the amount necessary for support is disputed would seem to be to direct an inquiry. In re Booth, supra.

On settlement of the decree I will hear parties as to this, if desired.


author: Emery, V. C.

text:
    Daisy B. Lehman v. Lester E. Lehman.
    [Decided April 8th, 1911.]
    In a suit for divorce on the ground of adultery the watching of a suspected husband, and suffering him to avail himself of an opportunity created by himself, without any previous knowledge or encouragement on the part of the wife, is not a connivance or consent on her part which will bar the divorce.
    On petition for divorce. On exceptions to master’s report adverse.

      Mr. Ralph E. Lum (Lum, Tamblyn & Colyer, solicitors), for the exceptant.
   Emery, V. C.

This is a suit brought by the wife against the husband charging adultery. The suit is undefended and the proofs of the commission of the act charged are satisfactory, but the master reports adversely on the ground that the wife connived at the adultery. The facts upon which connivance is found are substantially these: The petitioner suspecting the fidelity of her husband, but having no proof of it, arranged with a detective office to follow her husband on the nights when the detectives were notified by her that her husband was absent from home. From a subsequent conversation of her husband over the telephone, which she overheard, petitioner thought he might be making an appointment, but with whom or where was not learned, and she proposed to have him followed. Knowing of her husband’s habit of going automobile riding with a friend, petitioner went with her sister to the detective’s office after her husband left their home, and with her sister and the detectives went in an automobile in a search for this friend’s automobile on one of 'the Essex county avenues and its road houses. Finding the automobile of which they were in search at a road house, the husband was seen there in company with a woman with whom he subsequently occupied a room. The wife with her sister and the detectives waited and watched the house and room, and subsequently all entered the room and surprised defendant and co-respondent under circumstances indicating sufficiently that the crime for which they had been seeking proof had been committed. These facts, the master finds, show that the conduct of the wife indicated an intent or willingness that the act of adultery might take place, or culpable negligence in not preventing it, and he concludes that in a recent case (Delaney v. Delaney, 71 N. J. Eq. (1 Buch.) 246) the court of errors and appeals laid down a rule that in such cases divorce must be denied and one which controls the present case.

The master seems to have taken a single clause of this opinion in the Delaney Case, applied without reference to the facts or issues in the case, as intended to put in concrete form a new rule in reference to acts of petitioner which would bar a divorce, on the ground of negligence or connivance. This clause of the opinion, as well as the whole opinion, is to be read with reference to the issues directly involved for decision, one of which was, whether the special act of adultery charged had not been brought about by conduct of the husband himself toward the wife,.which conduct itself was the cause of or had a tendency to bring about the very act complained of. And it was this conduct of the husband toward the wife and the adulterer as being of itself an efficient cause of the crime, or itself contributing to the crime, which was held to bar relief. The effect of the mere watching the actions of the suspected wife, without her Imowledge and without directly effecting and encouraging them, was not involved in the Delaney Case, or intended to be passed on. On the facts of the case the court found that the conduct of the husband toward his wife conduced or contributed as one of its effective causes to the commission of the crime complained of. To extend the bar of connivance to the mere act of watching the movements of a suspected spouse could not have been the intention of the court, for the question was not involved. In a previous case (Warn v. Warn (1889), 59 N. J. Eq. (14 Dick.) 642), the same court had unanimously approved the opinion of Vice-Chancellor Seed, in which he stated that the facts necessary to constitute connivance must have a direct and necessary tendency to cause adultery to be committed, and this ease was approved and not overruled in the Delaney Case. And in reference to the express point now involved, Chief-Justice Gummere, in a later case (Inderlied v. Bullen (Supreme Court, 1910), 77 Atl. Rep. 469, stated: “A husband may properly watch his wife whom he suspects of that offence (adultery) in order to obtain proof of the fact, and such conduct does not constitute connivance,” approving the principle stated in Wilson v. Wilson, 154 Mass. 194.

The distinction between the Delaney Case and the one in hand is, that in the Delaney Case the acts or conduct barring divorce as connivance, or consent, were such as themselves tended to bring about the act complained of, in the sense that they were in some sense and to some extent the efficient causes of the act and contributed thereto as cause to effect. All of the cases in our courts which have considered this defence of consent or connivance, have applied the doctrine to acts or conduct which were in themselves of such a character as to cause or tend to bring about the crime. Hedden v. Hedden (Chancellor Zabriskie, 1870), 21 N. J. Eq. (6 C. E. Gr.) 61; Cane v. Cane (Chancellor Runyon, 1884), 39 N. J. Eq. (12 Stew.) 158; Warn v. Warn, supra. This statement probably does not include all possible eases of connivance— a matter which is not within the scope of this decision — but, while giving the meaning of “connivance,” or “consent,” as it appears to be drawn from the decisions, I intend now only to decide that the watching of a suspected husband and suffering him to avail himself of an opportunity .created by himself, without any previous knowledge or encouragement on the part of the wife, is not a connivance or consent on her part which would bar the divorce. This was the view taken by Vice-Chancellor Pitney in Brown v. Brown, 62 N. J. Eq. (17 Dick.) 62, 67, and seems to be the general, if not universal, rule in other American courts. 9 Am. & Eng. Encycl. L. (2d ed.) 830; Wilson v. Wilson, 154 Mass. 194, supra; 2 Bish. Mar. & D. (6th ed.) § 9; 1 Nels. Div. & Sep. § 485. Under the English statute (Matr. Causes act, 1857 §§ 29, 31), “such willful neglect or misconduct as has conduced to the adulter}’,” is a bar, as well as “being in any manner accessory to or conniving at the adultery,” but while these clauses are much broader than our own act, which (section 28) bars divorce for adultery, if “the complainant was consenting thereto,” I have found no case in the English courts in which the decision did not turn upon the construction to be placed upon acts or conduct of the petitioner which caused or had in themselves a tendency to bring about the crime charged.

The exceptions will be sustained and a decree of divorce advised.