text:
    Mary N. Bunting v. Anna May Bunting and Martie Bunting.
    [Decided January 6th, 1917.]
    1. A solicitor cannot obtain authority to acknowledge service of subpoena ad respondendum for an infant defendant, not even from the infant, as he is incompetent to employ a solicitor and voluntarily appear.
    2. An incapacitated party defendant should be brought into court by adverse proceedings.
    3. An infant defendant to a bill, who was between fourteen and twentyjone years of age, and for whom an acknowledgment of service was endorsed upon a subpoena ad respondendum by a solicitor, was given notice of an application for the appointment of a guardian ad Utem, and, on the day specified for the application, the infant not appearing, an order was made appointing the clerk of this court guardian ad Utem for her, by whom 'she might appear and answer and defend the suit, and who, the guardian, entered an appearance and filed for her the usual formal answer submitting her to the judgment of the court and praying that her interest in the premises might be protected and saved to her.— Held, that the proceeding for the appointment of a guardian being in and of itself regular, the infant is now in court and under its protection. In re Martin, 86 N.. J. Bq. 265, distinguished.
    4. A guardian ad litem is appointed for the purpose of placing an infant within the jurisdiction of the court. Per Chancellor Zabriskie in Colgate v. Colgate, 23 N. J. Bq. 372, 383.

      5. The defendants are an adult and an infant. A decrfee pro confesso was , regularly entered against the adult and.it was ordered that the complainant proceed to take depositions and other evidence to substantiate and prove the, allegations in her bill and to bring on the hearing of the cause ese parte. By the established practice this required 'the complainant to go before a master-and adduce proofs, wjho, the,master, would have been obliged to summon the guardian of the infant before him. In such a proceeding the guardian, who had answered for the infant, could have cross-examined the witnesses and produced .proofs, in her behalf. The. testimony, and exhibits offered, if any, would have -had to be submitted to the court to pass upon. Instead' of .doing this,, the complainant filed two ex parte affidavits to prove her cause of action-, and the advisory master recommended the' making of a decree for the complainant and against both defendants, which was accordingly, done.—Held, that the final decree thus made against the infant is invalid and must be vacated and set aside.
    6. So far as a case concerns an infant defendant, it cannot be said to be strictly' ex parte. As it affects his rights it is only in the nature of an ex parte proceeding. Where an infant defendant is before .the court represented by a guardian, as he always must be, the court protects his interests, and, in 'a sense, represents him. And where doubtful and difficult questions are involved the court will appoint counsel to represent the guardian. In such case the proceeding becomes essentially litigious and must be regularly brought on for hearing.
    7. Ordinarily, the successful party in a litigated matter, whether on interlocutory or final hearing, is entitled to costs. But in cases where the court has discretion, costs should not be awarded in proceedings taken to correct an error of law made by the court. Although the erroneous proceeding was taken by the complainant, the court made the decree in question, and as the solicitors of the complainant in an entirely open and ingenuous way convinced the advisory master that the complainant was entitled to the relief she sought on the record, and the court made the decree advised by the master, the complainant ought not to be mulcted in costs for the court’s error; therefore no costs will be awarded to either party on the motion to open and vacate the decree as to the infant defendant.
    On application to open decree and let in defence.

      Mr. Ellis L. Pierson, for the motion.

      Messrs. Geraghty & Weelans, contra.

   Walker, Chancellor.

The bill in this ease was filed to obtain a lien in the form of a mortgage on the premises therein described, and to compel the defendants, Martie Bunting and Anna May Bunting, to execute such bond and mortgage.

On December'31st, 1914, James N. Bunting, since deceased, purchased a lot of land in Trenton for $2,200, subject to a mort- , gage of $1,000. The bill alleges that at the time of the purchase of the lot mentioned, the complainant, Mary N. Bunting, requested James N. Bunting (who was her son) and Martie Bunting, his wife, one of the defendants, to- execute a bond in her favor in the penal sum of $2,000 and a mortgage to secure the same on the lot described for $1,000, to run for one year from January, 1915, with interest at six ppr cent., per annum, payable semi-annually, but not alleging that he owed the money; that at the request of James N. Bunting, since’deceased, William Gr. Howell prepared the bond and mortgage mentioned, but that Bunting departed this life without having executed them; that he died intestate leaving him surviving his widow, Martie Bunting, and his daughter, Anna May Bunting, a minor, the defendants.

A subpoena ad respondendum was'issued directed to the-defendants and was returned' with an acknowledgment of service for both endorsed thereon by a solicitor of this court. The bill alleges that the defendant Anna May Bunting is a minor under the age of twenty-one and above the age of fourteen years. The solicitor had no authority to acknowledge service for the infant defendant. If the infant directed the solicitor to acknowledge service for her, it was, nevertheless, a nullit}r, because an infant is incompetent tp employ a solicitor and voluntarily appear. Lang v. Bellof, 53 N. J. Eq. 298. Doubtless, 'the solicitor was ignorant of the fact that the defendant Anna May Bunting was a minor, and I have no doubt he acted in perfect good faith.

An incapacitated party defendant should be brought into court by adverse proceedings. In re Martin, 98 Atl. Rep. 510, 513. After the time limited for answer under the subpcena had expired, a decree pro confesso was entered, which recited -that subpoena for the “defendants” to answer had been duly issued •and returned with acknowledgment of service by a solicitor for “the defendant,” and -further recited that the defendant Martie Bunting, the adult, had not appeared and answered, and thereupon it was ordered that the complainant’s bill be taken as confessed 'against her,-to' the end that such decree might be made against her as the chancellor should think equitable and just;- and it was further ordered that the complainant proceed to take depositions and other evidence to substantiate and prove the allegations in her bill and to bring Qn the hearing of the cause ex parte. Prior to the entry of the áeeree pro confesso the usual. notice to the Infant, she being between fourteen and twenty-one years of age, was given of an application for the appointment of a guardian. On the day specified for the application, the infant not appearing, an order appointing a guardian was entered. It recited that she had been served with process to appear and answer to the complainants bill (which was not the fact) and that she had neglected to apply for the appointment of a guardian to defend the suit. Robert' H. McAdams, Esquire, clerk of this , court, was thereupon in the order assigned and appointed her guardian by whom she might appear and answer and defend the suit. The guardian ad litem entered an appearance and filed for her the usual formal answer submitting the infant to the judgment of the court and praying that her interest in the premises might be protected and saved to her. • '

’A preliminary question is here presented. It is: Can a guardian be appointed for an infant who is not regularly in court in a cause ? I am sure that if this situation fell under the notice of the court, in the' first instance, as it did (In re Martin, supra), a guardian would not have been appointed, but the complainant would have been given leave to bring' in the defendant in adverse proceedings—that is, by service of process upon her as a step preliminary to proceedings for the appointment of a guardian. But after the court has 'taken the infant under its protection, the case is different. In Beddinger v. Smith, 13 S. W. Rep. 735, the supreme court of Arkansas, on a bill filed to set aside a decree for want of service on certain minor defendants, held, that as the record showed that a guardian ad litem was appointed for them, who accepted the appointment and filed their answer,' and the decree recited that the cause, was heard upon their answer, such recital was conclusive as to service of legal notice on the minor'. That is not exactly this case, but it is a declaration that when the infants have been protected to the full extent to which they are entitled, the decree against them will not be set aside for want of service of original process upon them. See Manson v. Duncanson, 166 U. S. 533; 41 L. Ed. 1105.

■ It is the duty of the court'to protect the'interest of an infant party to litigation, and to exercise a'general supervision-over the conduct of the next friend or guardian ad litem. 22 Cyc. 531. This oftentimes results in the appointment by the court-of counsel to represent guardians ad- litem•, and, through them, the Actual parties, the'infants. See Colgate v. Colgate, 23 N. J. Eq. 372. This -was done in this casé on application of the guardian when it was ascertained that a-final decree had passed against the infant without the guardian having been heard.

■ Chancellor Zabriskie, in Colgate v. Colgate, 23 N. J. Eq. (at p. 383), in directing a guardian ad litem to employ proper counsel, approved by the court, to represent the infant, said that the guardian ad litem, who was the clerk of the court, was appointed pro forma only for the purpose of placing the infant within the jurisdiction of the court.

I am of opinion that when the-court appoints a guardian ad litem for an infant defendant, upon proceedings for that appointment which are in and of themselves regular, the infant is then- in court and" under its protection, although he is not regularly in court under initial process. And this, too, in analogy to the case of an infant who is brought into court by its next friend when the infant is a complainant, for in such a case the infant does not voluntarily appear but is brought into court by prochem ami, who is a person who undertakes to prosecute a suit in behalf of the infant, commonly called "next friend.” When the infant is a complainant he does not appear of his own volition, nor is he brought in on adverse proceedings. Whether complainant or defendant, he is brought in involuntarily and is represented before the -court by next friend, if complainant, or guardian ad litem, if defendant,-who, the procliein ami or guardian, as the case may be, must protect the infant’s interest under the sanction of the court who is the ultimate protector of the incapacitated party.- There is little, if any, difference between the functions-of a next friend and a guardian ad‘litem.

I hold, therefore, that this defendant is now properly before the court represented by her guardian ad litem. ■ And this holding is not in conflict with the decision in In re Martin, supra. There a petition was filed to obtain a release or relinquishment of the right of dower of a dóweress incapacitated by mental infirmity or disease from executing a-valid release or relinquishment herself. The solicitors of the petitioners (owners of the fee) moved for'a reference to a master, nomoticeto the dóweress of the intended application or of having a guardian. ad litem appointed for her having-been given. She was not even made a party to the proceedings. I held that shé should be brought into court on adverse proceedings, and that then a guardián would be appointed for her. I rested the decision very largely upon the opinion of Chief-Justice Green in Hess v. Cole, 23 N. J. Law 116, iix which he observed that in every proceeding of á judicial nature it is essential that the person whose rights are to be affected should be a party to the proceeding and have' an opportunity to make defence. In the case presently before me the infant is made a party to the proceeding, and, although not regularly subpoenaed, has had a guardian appointed for her on due notice. I repeat what I said before—that is, had the abortive attempt to bring in the infant defendant been noticed before the guardian was appointed, that appointment would not. have been made, but, having been made and the infant’s appearance having been entered by her guardian 'and an answer having been put in for her by him, she, being a party to the proceeding, is now before the court and with opportunity afforded her to malee defence by guárdian and counsel of the court’s selection. More she could not have, no matter what the form of the proceedings.

There is, however, a radical defect in the proceedings in the cause, one which requires that the ex 'parte decree against the infant shall be opened to permit her guardian to interpose a defence. It is this: The complainant should have adduced proofs to substantiate and prove the allegations of her bill by taking depositions before a master of the court who would have been obliged to summon the guardian of the infant before him. In such a proceeding the guardian who had answered for the infant could have cross-examined the witnesses and produced proofs on her behalf. The testimony and exhibits offered, if any, would then háve had to be submitted to the court to pass upon. Instead of doing this the complainant filed two ex parte affidavits to prove her cause of action, and the advisory master recommended the making of a decree;, and such was accordingly made and filed.

The complainant’s solicitors seem to have misconceived the scope of the authority to take depositions contained in the decree pro confesso and order for proofs. There are two kinds of proceedings in court inter partes: one litigious and the other non-litigious, or ex parte. In litigated cases the practice which universally obtained in this court before the advent of vice-chancellors and advisory masters was, after the pleadings were at an end, for the complainant to give notice of the taking of testimony before an examiner of the coiirt, and, after his testimony was closed, the defendant gave a similar notice and took and closed his testimony. The cause was then set down for hearing. before 'the chancellor, and the pleadings, depositions and exhibits were produced before him and the arguments of counsel-were heard and considered. In ex parte cases, then, and still, the proofs were and are not taken orally before a judge of the court, but are by the cotirt directed 'to be taken by the litigating party. In pursuane'e of this direction the party goes before a master of the court and examines his witnesses, whose depositions are taken down in writing by the master or a stenographer under the rules, and are returned into court, together with the exhibits offered, if any, and all are then considered by the court. Wha-e there are infant defendants, the practice is, and always has been, to summon the guardian ad litem of the' infants before the master conducting the examination of the witnesses. Even in ex parte foreclosure suits the interlocutory decree directs the master to whom the cause is referred to ascertain and report any such matter as he may deem proper or which- shall appear for the benefit of the infant defendants. The established practice of taking depositions before a master in ex. parte cases was entirely ignored and set at naught by the filing of ex parte affidavits looking to the establishment of the complainant’s claim and the entering of a decree thereupon. Besides, so far as a case conceras an. infant defendant, it cannot be said to be strictly ex parte. As it afiects bis rights it is only in the nature of an ex parte proceeding. Where an infant defendant is before ■ the court represented by guardian, as he always must, be, the court protects his interests, and, in a sense, represents him. And where doubtful and difficult questions are involved, the court, as seen, will appoint counsel to represent the guardian. In such case the proceeding becomes essentially. litigious and must be regularly brought on for hearing.

The conclusion reached is, that while the infant defendant is now in court, represented by a guardian ad litem, who has filed a formal answer for her, the decree made against her is invalid and must be vacated'and set aside. Although the formal answer filed on behalf of the infant defendant is doubtless sufficient to permit her guardian to raise in her behalf all of the substantive questions suggested in the recitals in the order to show cause why the decree should not be set aside, and as ground, therefor, nevertheless, the guardian will have leave to file a litigious answer. This would be the fairer course toward the adversary party, as the grounds of defence should be stated in a pleading. There is no reason why an answer' should -not be speedily filed. The guardian will be given ten days in which to file such pleading; and the cause may then be brought on for hearing before a vice-chancellor. .

Ordinarily, the successful party in a litigated matter, whether on interlocutory or final hearing, is entitled to' costs.' But in cases where the court has discretion, costs should not be awarded in proceedings taken to correct an error of law made by the court. See Lynch v. Public Service Railway Co., 83 N. J. Law 783. This court has discretion to award or withhold costs on the pending motion. Although the erroneous proceedings were taken'by the complainant, the court made the decree in question upon the advice of the advisory master who examined the case and recommended that the decree be made. And the court, as usual, adopted the view of the master as contained in his advisory certificate without reviewing the case (Gregory v. Gregory, 67 N. J. Eq. 7), and the error became in the last analysis, that of the court. It was a pure error of law, and, as the solicitors of. the complainant in an entirely open and ingenuous way convinced the advisory- master that the complainant was entitled to the -relief she sought on the record before the court, the complainant ought not to be mulcted in costs- for the court’s error. Therefore, no costs will be awarded to .either party on this motion. . '


source: Caselaw Access Project

author: IValkeS, Chancellor.

license: Public Domain

text:
    In the matter of William McCraven, an alleged idiot.
    [Decided December 12th, 1916.]
    1.. It is improper to propound a question to a witness, the answer to which would be a conclusion of law.
    2. The gravamen of a complaint may not be proved by an omnilms question, which would, in and of itself, permit a witness to establish the'case; that-may only be done-by questions calling for facts, which should not be leading questions or call for conclusions.
    3. A witness, not an expert, may, in a case of insanity, state facts as to the actions of an alleged lunatic, and then tell what, in his or her opinion, they indicate as to soundness or unsoundness of mind.
    - 4. The judgment of a court cannot be proved by parol.

      5. Parol evidence of the contents of a written instrument is inadmissible where the instrument itself can be produced.
    6. The quantum of an,estate may be proved by showing the muniments of title to the owner’s property, real or personal, except as to property, if any, to which there is no paper title; and as to that parol evidence may be given.
    7. A'witness is not competent to prove the value of property without showing he has expert knowledge of its worth.
    8. The rules of evidence which do not permit of leading questions, characterizations, hearsay and conclusions, and which require that facts only may be testified to by witnesses, leaving all inferences to be suggested by way of argument and to be decided by - the court, apply as well to eco parte cases as to litigated ones.
    9. In eco parte cases the court represents the absent defendant, to the extent at least of seeing to it that he is condemned only upon a proper case being made out by legal evidence.
    10. A defendant who does not contend against a plaintiff’s demand has the right to presume, and to rely upon the presumption, that no judgment will pass against him unless the adversary party shows himself entitled to it by the strict rules of law.

      On application for a commission to take testimony,, de bene esse.

      Mr. Joseph H. Powell, for the petitioner.
   IValkeS, Chancellor.

The petitioner applies to take testimony de bene esse, on commission, of two witnesses residing ont of the state, under the . provision of the Evidence act. (Gen. Stat. p. 2217 § 36 et seq. There is no proof of the materiality of the witnesses named, as required by section 36, except, perhaps, as that may be gathered from'the interrogatories'propounded, which'are annexed to the form of commission. Some of the interrogatories are incompetent.

The absent witness, Mrs. McCraven, mother of the alleged idiot, is asked about her son, and, among others, this question: “How long has he (the son) resided at Yineland?” This is a leading question—that is, one leading to and suggesting the answer as to place of residence, without its being shown that the mother’s memory needs refreshing. The question should have been: “How long has he resided at his present place of abode,” or “in the various places where he has lived?” or, to like effect. This is of minor importance, and, as the court may allow leading questions in its discretion, it might be passed over. Not so the next question, which is: “If he has ho brothers and sisters, who are his-next of kin and heirs-at-law ?” The answer to this would require the witness to give testimony amounting to a conclusion of law. See Austrian v. Laubheim, 78 N. J. Law 178; affirmed, 80 N. J. Law 459. The question should have been, say, “If he has no brothers and sisters, who are his relatives?” or something to that effect. It would then be for the court to determine who were his next of kin and heirs-at-law, which is a legal question.

A still more objectionable interrogatory is this: “Is your son so far deprived of his reason and understanding that he is rendered altogether unfit and unable to govern himself and manage his affairs ?” This question states the gravamen of the proceeding, which is as to the mental capacity of the 3roung man, and by no rule of evidence can that be made out by an omnibus question which would, in and of itself, permit a witness to establish the case. Of course, the witness would be entitled to answer questions which would show facts going to prové the mental condition of the alleged idiot, but such questions should not be leading ones or call for conclusions. That is not all: The witness, the alleged idiot’s mother, is not shown to be an expert in the matter of mental diseases. A witness, not an expert, may, in a case of insanity, state facts as to' the actions of the alleged lunatic, and then tell what, in his or her opinion, they indicate as to soundness or unsoundness of mind. Vanauken's Case, 10 N. J. Eq. 186, 191; Genz v. State, 58 N. J. Law 482; Clifford v. State, 60 N. J. Law 287, 289.

The next question is clearly objectionable. It is: “From what time has your son been incompetent mentally to govern himself or manage his affairs ?” This calls for expert testimony and is therefore incompetent. Unless the fact of mental incapacity had first been established, the question would he inadmissible as assuming a fact not proved.

Another witness sought to be examined, William S. Patton, is asked, among other questions: ' “Was the Houston Land and Trust Company guardian of the person and property of William McCraven during his minority?” Patton is previously asked what position he holds with the Houston Land and Trust Company. Assuming that he would state that he was an official of that company, he might be permitted to answer as a fact that the Houston Land and Trust Company was guardian, but not the next question, which is: “On what date was the Houston Land and Trust Company appointed guardian ?” because that appointment must reside in some record or document. In fact, the succeeding question indicates that such is the case, and is also objectionable. It is: “Was the Houston Land and Trust Company appointed guardian by the court, or by last will and testament ?” The judgment of a court cannot be proved by parol. Livesey v. Besson, 82 N. J. Law 333. And parol evidence of the contents of. a written instrument is inadmissible where the instrument itself can be produced. Sterling v. Potts, 5 N. J. Law *774; Johnson v. Arnwine, 42 N. J. Law 451; Koehler v. Schilling, 70 N. J. Law 585.

The interrogatory addressed to Mr. Patton as to whether William McCraven has resided in Vineland, New Jersey, and, if so, how long, is objectionable as leading, because it suggests the place of residence. However, as above remarked, this is rather immaterial and might be allowed. Not’ so the next question, which is:

“Give a statement of the real and personal property of which the alleged idiot is seized, now in the custody of the said Houston Land and Trust Company; and the value thereof.”

The quantum of an estate may be proved by showing the muniments of title to the property, real and personal, except, of course, as to property, if any, to which there is no paper title. Such a question as this might be asked:

“Has the alleged idiot, to your knowledge, any property? if yea, produce the muniments of it, if in your possession or under your control; and if he has, to your knowledge, title to any property, as to which no written evidence exists, state the facts within your knowledge concerning such title.”

Then a question like this might be asked: “If you shall have produced documentary evidence showing title to property in the alleged idiot, you may look at the documents and state from them what that property appears to be.”

The witness would not, however, be competent to prove the value of the lunatic’s estate without showing he had expert knowledge of such value. It is error to allow a witness to express his opinion where there is no evidence to show expert knowledge of the subject under inquiry. Riley v. Camden and Trenton Railway Co., 70 N. J. Law 289; Walsh v. Board of Education, 73 N. J. Law 643. Questions may, of course, be propounded, the answers to which would Jay a foundation for the witness to testify concerning the value of the property in question, and then he could be asked as to its value.

The rules of evidence which do not permit of leading questions, characterizations, hearsay and conclusions, and which require that facts only may be testified to by witnesses, leaving_all inferences to be suggested by way of argument and to be decided by the court, apply as well to ex parte cases as to litigated ones. In litigated causes counsel representing adverse interests' frequently permit', testimony of the inhibited character to be given by not objécting to questions the answers to which would elicit that .sort of testimony. But in ex parte cases the court represents the absent defendant to the extent at least of seeing to it that he is condemned only upon a proper case being made out by legal evidence.' A defendant who does not contend against a plaintiff’s demand has the right to presume, and to rely upon the presumption, that' no judgment will pass against him unless ■the adversary party shows-himself entitled to it by the strict rules of 'law. Palmer v. Palmer, 22 N. J. Eq. 88; Topfer v. Topfer, 68 Atl. Rep. 1071; Bull v. International Power Co., ante p. 1.

In such-a proceeding as that before the court the petitioner must be regarded as standing virtually in the situation of a complainant and the alleged idiot in that of a defendant, for, while/ the proceedings are taken for his benefit, the steps in it, up to and including the adjudication, are' necessarily of an adverse character.

The-petitioner may submit another set of interrogatories for the court’s- approval.


author: Walker, Chancellor.

text:
    Mary A. S. Reese v. Elizabeth Stires et al.
    [Decided March 27th, 1917.]
    1. In the law of real estate “descent” means hereditary succession to the title to lands by heirs-at-law on the death of an ancestor.
    -2. Estates of dower and curtesy arise out of the marriage relation and ■ become consummate in wife and husband, respectively, upon the death of the other spouse, but do not descend to those persons.

      3. The act of March 3d, 1915 (P. L. 1915 p. 61), entitled “An act amendatory of and supplemental to ‘An act directing the descent of real estates,’ approved April 16th, 1846,” which in terms abolishes estates and interests of dower and curtesy, violates article 4, section 7, plaeitum 4 of the constitution of New Jersey, which provides inter alia that “every law shall embrace but one object, and that shall be expressed in the title,” and is therefore null and void so far as it abolishes dower and curtesy—as the single object expressed in the title of the act concerns only the descent of real estates, and dower and curtesy do not descend.
    On application for decree for sale in partition.

      Mr. J. I. Blair Reiley, for the complainant.
   Walker, Chancellor.

This is a partition suit. The special master to whom the matter was referred to ascertain and report the right, title and interest of the respective parties in the premises sought, to be partitioned, or sold in lieu thereof,' reported inler alia as follows:

“By virtue of the seventh section of the act of March 3d, 1915 (P. L. 1915 p. 65), the defendant, John II. Hughes, husband of Mary C. Hughes, has no estate or interest as tenant by the curtesy initiate in any part of said premises, and the defendant, Clara. Lesher, wife of Franklin L. Lesher, is not entitled to any inchoate dower in any portion of said-premises. This act took effect July 4th, 1915, and the ancestress, Louisa J. Burd, died on March 7th, 1916. The shares of the said Mary C. Hughes and of the said Franklin L. Lesher became vested after said act was approved, and also after it went into effect, to whichever date the word heretofore’ in said section refers.”

The proof attached to the master’s report is that Mary G. Hughes, one of the heirs-at-law of Louisa J. Burd, who died seized intestate, of the premises in question, is married to the defendant John II. Hughes, the record being silent as to whether or not they have had issue. John II. Hughes has a contingent estate in remainder in the share and interest of his wife in the lands,'if there has been-no issue born alive, or, if there has been, then a vested estate in remainder, known to our law as an inchoate right of curtesy (Hackensack Trust Co. v. Tracy, 86 N. J. Eq. 301); and Clara Leslier has an inchoate right of dower in the share of lands of which her husband is seized-—-unless the act of the legislature referred to by the master is constitutional.

The solicitor of the complainant has presented a draft of a decree for sale—the master having reported that the lands and premises are so situate that a partition thereof cannot be made without great prejudice to the owners of the same—included in which is a form of adjudication that

“by virtue of the seventh section of the act of March 3d, 1915 (P. L. 1915 p. 65), the defendant John H. Hughes, husband of Mary O. Hughes, has no estate or interest by the curtesy initiate in any part of said premises; and the defendant Clara Lesher, wife of Franklin L. Lesher, is not entitled to any inchoate right of dower in any portion of said premises,”

and has moved the court to make the decree. This motion.raises the question of the constitutionality of section 7 of the act of March 3d, 1915 (P. L. 1915 p. 65), which in terms abolishes dower and curtesy in this state, saving vested interests, which would be saved without such provision. Hackensack Trust Co. v. Tracy, supra; In re Alexander, 53 N. J. Eq. 96.

The title of the act referred to is as follows:

“An act amendatory of and supplemental to an act entitled ‘An act directing the descent of real estates,’ approved April sixteenth, eighteen hundred and forty-six,”

and in section 7 it is provided:

“The estates and interests of dower, and right of dower and curtesy be and the same are abolished hereby; provided, however, that nothing in this act shall affect any such estates or interests which may have become vested heretofore.”

The constitution of New Jersey, in article 4, section 7, placiium 4, provides inter alia:

“To avoid improper influences which may' result from intermixing in one and the same act, such things as have no proper relation to each other, every law shall embrace but one object, and that shall be expressed in the title.”

The single object expressed in act of 1915 (P. L. 1915 p. 61) is to direct the “descent” of real estates.

In 2 Bl. Com. 201, the learned commentator defines descent as follows:

“Descent, or hereditary succession, is the title whereby a man on the death of his ancestor acquires his estates by right of representation, as his heir-at-law. An heir therefore is he upon whom the law casts the estate immediately on the death of the ancestor; and an estate so descending to the heir, is in law called the inheritance.”

And the rules of the common law govern the descent of real estates in New Jersey so fax as they have not been changed by statute. Fidler v. Higgins, 21 N. J. Eq. 138.

At the common law when the husband of a woman was seized of an estate of inheritance and died, the wife had the third part of all the lands and tenements whereof he was seized at any time during coverture, to hold for the term of her natural life. 2 Bl. Com. 129. Our act makes this same provision. Comp. Stat. p. 2043 § 1.

Tenancy by the curtesy is whore a man marries a woman seized of an estate of inheritance and has by her issue born alive which was capable of inheriting her estate. In this ease, on the death of his wife, he holds the lands for his life as tenant by the curtesy. 2 Bl. Com. 126; Hackensack Trust Co. v. Tracy, supra.

These estates of dower and curtesy, it will be observed, arise out of the marriage relation and become consummate in wife and husband, respectively, upon the death of the other spouse, hut they cannot be said to have descended to those persons. They become inchoate and are vested in interest during the lifetime of the ultimate beneficiary—the widow or tenant in dower. Not so in the case of lands descended, for no one can be heir-at-law to a living person. Before the death of the ancestor the person who is next in the line of succession is called an heir apparent if he be heir to the ancestor whenever he happens to die, and heir presumptive if the ancestor should die immediately, but whose right of inheritance may be defeated by the contingency of some nearer heir being born. 2 Bl. Com. 208.

Descent, in Whart. Lex. (12th. ed., 1916), is defined as the hereditary succession of property vested in a person by the operation of law, i. e., by his right of representation as heir-at-law. Descent, in Bouv. Dict. (Rawle’s Rev.), is defined as, to pass by succession; as when the title vests by operation of law in the heirs immediately upon the death of the ancestor.' Husband and wife are not the heirs of their deceased spouses. We say a man died leaving him surviving his widow A, and his heirs-at-law B, C and D. And we say that a woman died leaving her surviving her husband 'E, and her heirs-at-law G, H and I.

Our statute directing descent of real estates provides as to who shall take the lands of persons dying intestate. This statute does not pretend to legislate with reference to dower and curtesy except to declare, in several sections, that nothing contained in the act shall be construed or taken to bar or injure those rights. See Comp. Stat. p. 1917 §§ 6, 11, amended by P. L. 1915 p. 61, also § IS. Other sections make no such reservation, yet, of course, the lands descend as provided in those sections of the act, subject to estates in dower and by the curtesj1, which doubtless need no saving clauses whatever.

Dower has been the subject of legislation in this state, but only under an act with an appropriate title relating to that particular species of property. See the act relative to dower. Comp. Stat. p. 2043. We have no statute dealing with an estate by the curtesy. If that species of property were to be the subject of legislation, I apprehend that it could be affected only by an act relating to it alone, and having an appropriate title, one that would cpme within article 4, section 7, placiPwm 4 of thQ constitution, which provides that the object shall be expressed in the title.

If dower and'eurtesy can be abolished under the title of an act directing the descent of real estates—such descent being the only object expressed in the title—it would seem to me that such abolition would extend to dower and curtesy in estates descended only and not to those devised by last will and testament; and that, to abolish dower and curtesy in lands devised, a supplement would have to be passed to the act concerning wills (Comp. Stat. p. 5861)—that is, assuming that the abolition of dower and curtesy can be accomplished by legislation under such titles.

In my opinion, however, the seventh section of the act of 1915 (P. L. 1915 p. '65) is unconstitutional and void because not within the title of the act.' Legislation respecting dower and curtesy, which arise out of the marriage relation and vest in the relicts of deceased spouses, and which do not descend as to an heir-at-law, cannot, in my judgment, be constitutionally included in an act whose object is the direction of the descent of real estates. The very words of the constitutional provision that “every law shall embrace but one object, and that shall be expressed in the title," plainly forbid the legislation attempted in section 7 of the act under review. I deem it unnecessary to cite any of the numerous cases in our state which have construed statutes with reference to the constitutional provision above mentioned. Nor is it necessary to cite the decisions to the effect that an unconstitutional provision in an act will be excised, and the rest of the act upheld, if what remains is the primary object of the legislation. The act under review in six sections legislates with reference to its primary object, namely, the descent of real estates—the only object expressed in its title. The seventh section is alien to its object and cannot constitutionally be .made one of its subjects. This section is opposed to the organic law and is, consequently, null and void.

This cause must be referred back to the special master to ascertain and report whether any heir has been born alive to Mr. and Mrs. Hughes, so that it may be ascertained whether the husband’s interest in his wife’s share of the lands is one of contingent remainder or vested remainder (inchoate right of curtesy); also to ascertain whether Frank Sletor, the husband of Alice Sletor, deceased, is still alive, for, if he is, he is entitled to an estate by the curtesy in the share of the lands which descended to their son, John L. Sletor, as to which there was no report. As to the inchoate right of dower of Clara Lesher, no further report is needed, as by the fact of her marriage to Franklin L. Lesher, she has that right owing to the invalidity of section 7. P. L. 1915 pp. 61, 65.


author: Stevens, V. C.

text:
    Frederick F. Guild et al., executors, &c., v. The Mayor and Common Council of the City of Newark et al.
    [Decided November 20th, 1916.]
    1. Whore a testatrix by her will devised and bequeathed her real and personal property to her husband for life and on his death to her heirs-at-law -for distribution according to the laws regulating the descent of realty, testatrix’s daughter took a vested remainder in fee on her mother’s death, which on the daughter’s death intestate vested in her heirs-at-law; the words “on his death” merely denoting the period at which the remainder was to take effect in possession.
    2. The word “corporations” in the will under consideration is broad enough to include a municipal corporation.
    3. The city of Newark under the terms of its charter, has capacity to take real and personal property..
    j 4. While a donee of a power may not exceed the authority conferred | he may, unless restricted, appoint a lesser estate.
    / 5. City of Newark may accept a gift of land for the purposes of a park, even though it is empowered to use park lands for any other public use, since, if that were done, the gift would revert to the heirs of the donor.
    6. Under the language of the will in question, and the facts of this case, Held that the intention of the testatrix to exercise her power of appointment clearly appeared.
    On bill, ,&C.

      Mr. George W. Q. McCarter ancl Mr. Robert H. McCarter, for the complainants.

      Mr. Fdwaq-d A. Day, for Tale University.

      Mr. Albei't C. Wall, for Mr. and Mrs. Pennington.

      Mr. Richard Boardmm, Mr. Joseph F. Randolph and Mr. Gilbert Collins, for Mrs. Anna H. Condict.

      Messrs. Queen & Stout, for S. Howell Jones.

      Mr. Spaulding Frazer, for the city of Newark.
   Stevens, V. C.

This bill prays for the construction of four wills made by members of the family of the late David A. Hayes. The question is whether the effect of these wills is to vest in the city of Newark a valid title to lands and money devoted to the use of a public park.

David A. Hayes died intestate, in 1875, seized of some of the lands in controversy. He left a widow, Caroline D. Hayes, and three children, viz., a son, Howard, and two daughters, Mary and’Alice.

Mary married Louis Pennington and died in 1894, leaving a daughter, Mary, who survived her mother but died when only six years old. By her will, made before Mary was born, she provided as follows:

“Second. I give, devise and bequeath unto my husband, Louis Pennington, all my real and personal property of 'whatsoever kind and wheresoever situate * * * for and during the term of his natural life, and on his death to my heirs-at-law to be distributed among them according to the laws now in force-regulating the descent of real estate in the State of New Jersey * *

On this will Mrs. Condict, a cousin of testatrix, contends that the estate given to the heirs-at-law did not vest in her daughter on her (testatrix’s) death, but is a contingent remainder, that will not vest until the death of her husband, Louis; and that the daughter having died in his lifetime, she (Mrs. Condict) is now heir presumptive of the estate devised. The city’s contention is that the daughter took a vested remainder in fee on her mother’s death, and that when she died it vested in her Unde Howard and her Aunt Alice as her heirs-at-law. I think the city’s contention is correct. The case is the ordinary one of an estate for life with remainder over. There is nothing to indicate contingency. The words “on his death” merely denote the period at which the remainder is to take effect in possession. Tuttle v. Woolworth, 62 N. J. Eq. 532. In the cases cited on behalf of Mrs. Condict there were indications of an intention to postpone the vesting. Here there are none. In 1 Jarm. Wills (4th Am. ed.) § 726, it is said:

■‘It may be stated as a general rule that where a testator creates a particular. estate and then goes , on to dispose of the ulterior interest, expressly in an event which will determine the prior estate, the words descriptive of such event occurring in the latter devise, will he construed as referring merely'to the period of the determination 'of the possession or enjoyment under the prior gift and not as designed to postpone the vesting. Thus, where a testator devises land to A for life and after lm decease to B in.fee, the respective estates of A and B (between whom the entire fee-simple is parceled1 out) are both vested- at the instant of the death of the testator, the only difference between the devises being that the estate of the one is in possession, and that of the other is in remainder.”

Jarman’s illustration is identical with the case in hand.

How the reference to the statute in force at the date of the will helps the ease, I am- at a loss to understand. A will sometimes speaks as of the date of its execution. Quick v. Quick, 21 N. J. Eq. 13; Voorhies v. Otterson, 66 N. J. Eq. 172. Here, testatrix’s purpose was to- give her property, by way of re-' mainder, to those who under the law in force at the time she made her will, should be her heirs; not to those who might-become such under any statute subsequently enacted.

It is plain, then, that the remainder in fee vested in the child Mary, and on her death went to her heirs-at-law, viz., her Hncle Howard and her Aunt Alice.

Caroline D. Hayes, the mother of Howard and Alice, died in 1901, subsequently .to her daughter, Mrs. Pennington. She left a will by the ninth clause of which she devised and bequeathed her property to her executors, Howard and Alice, in trust to pay one-half of the income to Howard and the other half to Alice, and in default of issue

“at the death of the survivor of my said two children, in further trust to transfer and pay -over the same to such person or persons, or body corporate, absolutely or upon such terms, trusts or conditions as the survivor of my said two children Howard and Alice may by his or her last will and testament designate or provide.”

Howard married and died in 1903, leaving no issue. By the second paragraph of his will, made before his marriage, he provided as follows:

“All the rest and residue of my estate, both real and personal, I give, devise and bequeath to my sister Alice W. Hayes for and during the term of her natural life, and after her death, to such person or persons, corporation or corporations, as she shall by her last will and testament in writing appoint and in default of such appointment then to the corporation known as Yale College.”

It will thus be seen that the property of David A. Hayes, and the residuary estates of Caroline D. Hayes, of Mary Pennington and of Howard Hayes, became subject to powers of appointment vested in Alice. Alice, by her will, gave to her executors, in trust; her own property and that which she was thus empowered to appoint.

■ By the ninth paragraph, after providing for certain life estates, she devised as follows:

“Upon the termination of said life estates, I direct that said lands and premises (lands lying on Clinton avenue, Newark) and all accumulations of income therefrom shall be conveyed and transferred by my said trustees or the survivor of them to the mayor and common council of the city of Newark, the said land to be used for a public park and for that use only forever and to be called by the name of Hayes Park or Hayes Square.”

By the eleventh paragraph she gave the residue of her estate, which is said to amount to several hundred thousand dollars, to her trustees

“to hold under the same trust and for the same purpose as provided in the ninth clause of this will and to convey and transfer and pay over to the said the mayor and common council of the city of Newark, to be used in laying out, grading, beautifying and the general improvement and care of the said lands and premises referred to in the said ninth clause of this will or in purchasing additional lands for said park,” &c.

It is urged b3r those who might otherwise take the property thus appointed (1) that a municipality like Newark is not a corporation within the meaning of the wills of Caroline and Howard; (2) that Newark is not competent to take; (3) that the power of appointment has been improperly exercised and has therefore failed.

It seems to me too plain for argument that the term “corporation,” as used in the wills, is broad enough to include municipal corporations. By its charter (P. L. 1857 ch. 52) Newark is made “a body corporate and politic in fact and in name by the name of the Mayor and Common Council of the City of Newark.” Municipal bodies have been incorporated from the time of Henry VI.. They and the ecclesiastical bodies were the prototypes of all corporations. One has only to glance at Kyd’s book published in 1793 to see that even then municipal, ecclesiastical and charitable - corporations much exceeded in numbers and importance private corporations, formed for purposes. of gain, that now so largely dominate our business life. It is to corporations of the first kind rather than to corporations.of the second, that testamentary gifts are commonly made. And, as to the former, I am quite unable to understand now the court could arbitrarily distinguish between them—how it could say, that corporations having a public character were not intended and corporations having an ecclesiastical or educational, character were. I think, therefore, that a corporation like Newark comes within the scope of the power of appointment.

The next question is whether Newark has capacity.to take. Of this there can be no doubt. By the general rule of the common law, says Kyd (p. 71)■) a body corporate is capable of taking any grant of property in the same manner as private persons. While'it cannot be seized of land to the use of another, it may, notwithstanding, if made trustee for charitable purposes, be compelled to perform the trusts. In Merewether & Stephens’ History of Municipal Corporations, it is said (at p. 5) that the very object, originally, of incorporating cities and towns was to enable them to sue and be sued and take and inherit lands. The limitation that has, by American law, been engrafted upon their power of acquisition, is that they cannot take for purposes foreign to their institution. Says Judge Dillon (Mun. Corp. § 567) : “Not only may municipal corporations take and hold property in their own right by direct gift, conveyance or devise, but the cases firmly establish the principle that such corporations, at least in this country, are capable, unless specially restrained, of taking property, real or personal, in trust for purposes germane to the objects of the corporation.”

The charter of Newark gives it the right “of purchasing, holding and conveying any estate, real or personal, for the public use of the city.” Among its charter powers, greatly extended by subsequent statutes relating to public parks (Comp. Stat. p. 4188), is the power “to regulate, protect and improve the parks, public burial grounds and other public grounds of said city.” If it takes and holds land for a park, it takes it for a purpose germane to the purposes of its incorporation. A gift for such a purpose is one which, because of its inherent power to take as an incorporated body, it is competent to' take and hold. In other words, as a corporation, it is competent to take, for an object germane to it, whatever the statute or the policy of the law does not restrain it from taking. The mode of acquisition is immaterial.

The question then comes down to this: Have the powers of appointment been validly exercised? The argument on behalf of the heirs-at-law on this head is that they have not been (1) because a prior life interest has been given to Mr. and Mrs. Pennington; (2) because the gift has been qualified in such a Avay that the city cannot lawfully accept it.

The first objection is not supported by the authorities. The Irav is clear that Avhile the donee of the power may not exceed the authority conferred, he may, unless there are words of restriction, appoint a lesser estate than that authorized (4 Kent Com. 345), and may carve out of the fee estates for life and in remainder. 1 Sugd. Pow. (7th ed.) *471, 496; Bovey v. Smith, 1 Ver. 84; Thwaytes v. Dye, 2 Ver. 80; Alexander v. Alexander, 2 Ves. Sr. 630; Wilson v. Wilson, 21 Beav. 25; Hillen v. Iselin, 144 N. Y. 365; In re Appleton’s Appeal, 20 Atl. Rep. (Pa.) 521; Butler v. Huestis, 68 Ill. 594.

The objection that Newark cannot, because of the condition, lawfully accept the gift is equally untenable. It seems to be founded on the notion that Newark must, in accepting, contract to do that which the laAv will not permit it to do, viz., agres that it will always call the park Hayes, Park, and will never devote it to any other use. This, it is said, the statute (Comp. Stat. p. 4146 § 18) forbids, when it provides that whenever any land in use for a public park may be required for use as a public highway or for any other public use, “it shall be lawful for the municipal or other authority having the title, use, management or control thereof, to consent to the use of the same for such new public use.” It may be true that Newark cannot agree that the land appointed shall “be used for a public park and for that use only forever.” But it is not called upon to agree. It sinrply takes the estate given to it—that is, a qualified fee— which will revert to the heirs of the donor when the particular use is discontinued. Numerous illustrations may be found in our own reports, the most noted being that of the Morris canal. In State v. Brown, 25 N. J. Law 20, the deed granted the land to the canal company “as long as used for said canal,” and Chief-Justice Green said: “By the terms of the

conveyance the grantees take a qualified fee, liable to be defeated whenever they cease to use the land for the purposes specified in the grant. Yet, while the estate continues, and until the qualification upon which it is limited is at an end, the grantee has the same rights and privileges over his estate -as if it were a fee-simple.” Other illustrations are found in Southard v. Central Railroad Co., 26 N. J. Law 13; Cornelius v. Ivins, 26 N. J. Law 376; New Jersey Zinc and Iron Co. v. Morris Canal and Banking Co., 44 N. J. Eq. 398. The word “forever,” so commonly employed in conveyancing parlance emphasizes, but does not add to, the duration of the estate. The gift is, in the quaint language of the old cases, made to a body possessing immortality—that is, indefinite duration.

Other objections to the gift have been made, but they are without substance. It is said that while the will of Mrs. Hayes confers a general power of appointment, that of Howard Hayes does not. One has only to read it to see that the power conferred is, in terms, unlimited.

“All the rest and residue of my estate I give (after the death of Alice) * * * to such person or persons, corporation or corporations, as she (Alice) shall by her last will and testament in writing- appoint.”

Then it is said the gift has failed because Alice’s intention to exercise the power does not clearly appear. But it is evident that by paragraph 8 she intended to exercise the power conferred by Howard’s will, and by paragraph 10 the power conferred by Caroline’s. She So expressly states. By the eleventh, which is the residuary clause, after giving all her estate to be held on the trust provided for in the ninth paragraph, she adds:

“It being my intention hereby to vest in my executors in fee-simple all the property not hereinbefore specifically disposed of, held or controlled by me at my death or which I have or may have power to dispose of under the power of appointment in the will of my said brother (Howard) or in the will of my mother, Caroline D. Hayes, or in or under any other will or instrument or otherwise.”

Notwithstanding these explicit declarations, it is argued that Alice does not state that she is exercising her power of appointment in paragraph 9. She does, however, state, in paragraph 8, that she is disposing of the estate “given” to her, “pursuant to the power conferred” by her brother’s will, and what she “gives" by paragraph 9 is a part of this estate.

The two tracts of land described in paragraph 9 belonged to her father. On his death intestate, they descended to Howard, Mary and Alice. By Mary’s will, as has been already shown, her share, subject to her husband’s life estate, vested in her daughter Mary. On Mary’s death heir share went half to Howard and half to Alice; so, that Howard and Alice became each entitled to an undivided half. Then Howard died and gave Alice the power of appointment in question. Paragraph 9 reads:

“I give and devise to my executors hereinafter named all- my right, ■ title and interest both that held by me or due me or which will become part of my estate on the termination of the life interest therein of my brother-in-law, Louis Pennington, and the termination of the life interest therein of my said sister-in-law, Mary Vanderpool Hayes, given- to her in paragraph eight of this will in the two tracts of land and premises in said city of Newark,” &c.

This paragraph, it will be observed, refers, first, to the title and interest originally her own, viz., one-third; second, to the title and interest of the deceased child Mary, to become part of her estate in possession on the termination of the -life interest of her brother-in-law—an interest which he could claim either as tenant by the curtesy or under'his wife’s will, and third, to the title and interest which she had derived from Howard, out of .which, he having failed to make provision for his wife (his will antedating his marriage), Alice had given to her a life right, to carry out what she believed to be Howard’s wish, defectively expressed in an unexecuted paper. As the result of this analysis, I think there can be no reasonable doubt that what Alice intended should pass under clause 9 was Howard’s interest as well as her own. She does not, perhaps, in apt language, expressly appoint this interest, but she says, in paragraph 8, that she intends to dispose of her brother’s estate pursuant to the power conferred upon her, and in paragraph 9 she specifies this interest and says that she gives- it with her own in trust for. Newark. She treats the estate bequeathed and devised to her by Howard for life, with power to appoint it after her death, as "'given to her, as for all practical purposes it was. She says:

“Whereas my brother, Howard, now deceased, did in and by his last . will and testament give, devise and bequeath all the rest and residue of his estate and after my death to such persons or corporations as I should by will appoint. Now, therefore, pursuant to the power conferred upon me, I hereby dispose of the estate, real and personal, given to me under the will of my'said brother1 as follows.”

What is so given, she then gives for life to his widow, with a' remainder in trust for Newark. Can anything be clearer than that by “give” she means “appoint?”

But if Howard’s interest in the land does not pass under paragraph 9, it does, beyond all manner of doubt, by paragraph 11. It is argued that if it passes under this clause, it creates an impracticable situation, that only an undivided half being given by paragraph 8, the other undivided half must be devoted to grading, beautifying and maintenance. I very much doubt whether this is the reasonable construction or effect of paragraph 11; but its construction in this regard is immaterial if Howard’s interest in the two tracts passed under paragraph 9, as I have found that it did.

It is unnecessary to consider the other questions raised by the bill. They have either been disposed of or do not, in view of the decision on the principal question, need consideration.


author: Stevens, Y. C.

text:
    Samuel H. Bowman v. William M. Brown et al.
    [Decided January 2d, 1917.]
    Where an agent took a deed in escrow to be delivered to his principal upon payment of a certain sum, his agency did not incapacitate him from holding the deed in escrow.
    On bill, answer and proofs.

      Mr. Edwin B. Goodeli, for the complainant.
    -3/í*. Maihew J. Ready, for the defendants.
   Stevens, Y. C.

The first question raised by the bill is whether the late John Whitehead was in a position to hold a deed in escrow. One Iviesler had, in February, 1898, conveyed a piece of woodland of small value to William M. Brown, in satisfaction of Mr. Brown’s claim against him for legal services. After he had made the deed, he became dissatisfied and consulted Mr. Whitehead as to what he could do. Mr. Whitehead entered into a correspondence with Mr. Brown. Mr. Brown saw Mr. Kiesler and told him that he would reconvey, on payment of the sum of $250, which was 'agreed upon between them as the value of the service rendered. To insure the carrying out of this agreement Mr. Brown agreed to place, and did place, in escrow, in the hands of Mr. Whitehead, a deed reconveying the lot, with the understanding that Mr. Whitehead was not to deliver it until Kiesler had paid Mr. Brown the above sum. The money was not paid and Mr. Whitehead held the deed unrecorded until his death. Kiesler is also dead.

The complainant was a judgment creditor of Kiesler, to whom, in April, 1905, after execution issued, the sheriff of Essex county made a deed purporting to convey the property in question with other property. He contends that the delivery to Mr. Whitehead was in law a delivery to Kiesler, and vested in him the fee of the land; his contention being that a deed can no more be delivered in escrow to the party’s agent than it can be to the party himself. If this be so, Kiesler, on the delivery of the deed to Mr. Whitehead, acquired the fee and this fee passed under the sheriff’s deed to Bowman. Whether the action begun in the district.court is the proper action I need not decide, but, it is certain that the question is one of legal title, capable of being tried in an ejectment suit and not an equitable question.

I am of the opinion, however, that Mr. Whitehead was able to . hold the deed in escrow. The law is thus stated in 10 R. C. L. 631:

“It has now become the settled rule that if the agent’s or attorney’s relation to his principal is such that his acting as custodian of the deed or paper is not antagonistic to his principal’s interests and the paper was put in his hands, not as a delivery, but as an escrow, such general agent or attorney of the grantee, payee or obligee of an instrument is not incapacitated from acting as depository of the instrument, but becomes the agent of both parties for the purposes of the escrow.”

I can see nothing antagonistic to Mr. Kiesler’s interests in the action of Mr. Whitehead. In Watkins v. Nash, L. R. 20 Eq. 262, it was held that the delivery to the solicitor of the grantee of an instrument executed by the grantor will not convert the instrument from an escrow into a deed, provided the delivery is of a character negativing its being a delivery to the grantee. This ruling was approved by the court of appeals in the later case -of London Freehold Co. v. Baron Suffield (1897), 2 Ch. 608. The case of the Ordinary v. Thatcher, 41 N. J. Law 403, is not in point. The decision was expressly rested upon a ground peculiar to cases of the class then under consideration.

As the bill prays, in the alternative, for a redemption, and as the defendant does not contest complainant’s right to redeem, he is entitled to a decree for a reconveyance on payment of principal and interest from the date of defendant’s agreement with Kiesler.


author: Stevens, V. 0.

text:
    Walter Sternberg v. Rose Wolf, executrix.
    [Decided February 19th, 1917.]
    An executrix, upon whose judgment a legacy was to be paid when specified conditions were fulfilled, - is not disqualified from determining the fulfillment of these conditions because she has dissipated the fund; such a power is in the nature of a trust, and the exercise of it will be enforced by a court of equity; the legatee takes not from the bounty of the executrix, but as legatee under the will.
    On bill and answer.

      Mr. Otto Stiefel, for the complainant.

      Mr. Adrian Biker, for the defendant.
   Stevens, V. 0.

The testator after giving a legacy of $2,000 to his .son Isaac, conditioned upon his arriving at the age of twenty-one years, provided as follows:

“Fifth. If my said son Isaac W. Stern shall grow up to be a good and useful man, free from evil habits and associations, it is my wish that he shall receive the further sum of $2,000 out of my estate, to be paid to him, without interest, when he arrives at the age of twenty-six years. This payment, however, is to be entirely within the discretion of my wife, Rosa Stern, who shall decide whether my son has been entitled to said payment or not. Should such payment not be made to my said son for any reason, or should my said son die before arriving at the age of twenty-six years, the said last-named sum of $2,000 shall also be paid to my wife, Rosa Stern, for her own use.”

Testator gave the residue of his estate to his wife. He made his wife and brother-in-law, David Wolf, his executors. The estate that came into their hands was ample to satisfy both of the legacies given to Isaac, but the two executors lost it in a-venture of their own. .Mrs. Stern (now Sternberg) is insolvent. The estate of David Wolf is good. I have already held that it is responsible to the extent of at least. $5,000 for the assets wasted.

Mrs. Sternberg, Walter’s mother, has, in a foripal paper, executed after Walter came of age, certified that he has grown up to be a good and useful man, free from evil habits and associations. It is admitted that the certificate conforms to the fact.

The question is whether payment of the $2,000 can be enforced against the estate of David Wolf.

I doubt whether this can be called a case of precatory trust. Eberhardt v. Perolin, 48 N. J. Eq. 592. The estate is not given to Mrs. Stern in the first instance, and she desired or recommended to give thereout a certain sum of money. The gift is to the son, who is to have it if he fulfills two conditions. He must reach the age of twenty-six, and he must grow up to be a good and useful man. His mother is made the judge. If she finds that he fulfills the conditions, he takes not from the bounty of his mother but as the legatee of his father.

The argument is that Mrs. Stern is disqualified from acting because she has dissipated the fund. I think she had a power in the nature of a trust, and if she became disqualified, the power would not have failed but would have devolved upon the court.. Says Lewin in his work on Trusts *600:

“There are not only a mere trust and a mere power but there is also known to this court a power which the party by (to ?) whom it is given is entrusted and required to execute; and with regard to that species of power the court considers it as partaking so much of the nature and qualities of a trust, that if the person who has the duty imposed upon him does not discharge it, the court will to a certain extent discharge the duty in his room and place.”

In the case in hand the duty is so manifestly a judicial one that the court would have no difficulty in exercising it.

But I doubt if the mother be disqualified. She did her son a wrong when she wasted the money. Must she be required by this-court to do him another? Must the court say to her, I will not regard your certificate because you, are not in possession of the fund ? The cases hold that the power of consenting to an advancement is not extinguished by bankruptcy. In re Cooper, 27 Ch. Div. 565; Alexander v. Mills, L. R. 6 C. A. 124. If this afford a legitimate analogy, then the fact that the mother iio longer holds the fund is no reason why she should not exercise what seems to be an independent and separable power.

The question having been passed upon by the person to whom the power to pass upon it was committed, the son became, for all purposes, his father’s unconditional legatee, entitled to pursue his remedy in precisely the same way as any other legatee might.


text:
    William M. Wright et al., executors, v. Mina W. Keasbey et al.
    [Decided February 17th, 1917.]
    Under the language of the will in question, the executors therein named have no general power of sale of real estate, but as to those shares of the estate given to them as trustees to be “reduced to personalty” there is a necessarily implied power of sale of real estate.
    On bill, &e.

      Mr. Gorilandt Parlcer, for the complainants.

      Mr: Charles P. McKinney, for the defendants.
   Stevens, Y. C.

This is a bill for the construction of the will of Mrs. Dora Mason Wright. She left a considerable estate, real and 'personal, the realty consisting of many separate parcels. The question is whether, the will contains, by implication, a power of sale.

By the first clause she provides for the payment of her debts: by the second she directs that all her estate, real, personal and mixed, be divided into six equal parts. Three of these parts she gives out and out, one to her • son William Mason Wright, another to her son Edward H. Wright, Jr., and a third to her daughter Dora W. Parker. The clauses are similar and T quotq the first': “I give, devise and bequeath to my son William Mason Wright, his heirs and assigns forever, a one-sixth sliare of my estate.”

To her three daughters, Emily, Julia and Mina, she gives in a qualified way. I quote the clause giving a share to Emily:

“I give, devise and bequeath to my daughter Emily a one-sixtli share of my estate, the principal thereof to be held in trust and the income to be paid to her during the term of her natural life. I direct that my said daughter Emily shall have the power to dispose of by will her one-sixth share outright, should she so desire. If she dies intestate and without leaving issue, then this trust is to terminate and her one-sixth share .of the said estate is to be divided among her brothers and sisters surviving her, their heirs and assigns forever.”

There are some variations in the provisions of the clauses giving a sixth to Mina and Julia, but they are similar as far as respects the present question.

The concluding paragraph reads as follows:

“I nominate .and appoint William Mason Wright, Edward H. Wright. Jr., and Chauneey G. Parker executors and as trustee to perform and fulfill the foregoing trusts. I direct -that at the request of any of the cestui que trusts the said trustees shall turn over to any good trust company as much of the share of such cestui que trust as shall be reduced to personalty and shall continue thereafter so to do, ’ as such share is so reduced to personalty and the proceeds and income only shall be divided to the shares, unless a general division of the real estate shall be made; and I direct that said trustees may hold sufficient personal property to care for the real estate in the way of taxes, improvements and other fixed charges; and I direct that the executors and trustees herein named shall each receive one thousand dollars as compensation for their services and no more.”

Two questions arise. Have the executors power to sell the land generally? If not, have they a power to sell the interests of the three daughters, Emily, Julia and Mina?

I can find no power to sell the three shares given outright.. The executors are not made trustees of those shares and the title to them, legal and equitable, is vested immediately and unconditionally in the two sons, and in Mrs. Parker. Whether, when the testatrix, in the second paragraph of her will, directed that her estate should be divided into six equal parts, she, by implication, authorized her executors to make the division, I do not decide, but if she did, the power to make it does not include the power to sell (Sugd. Vend. (8th Am. ed.) § 70), and this is-the only question I am now considering.

As to the concluding paragraph, I can find nothing in it that gives the power, as far as the three shares are concerned. Its scope and meaning will be considered later on.

The troublesome question is whether there is a power of sale annexed to the gifts to Emily, Julia and Mina. Looking merely at the words, the gift is direct to the daughters: “I give, devise and bequeath to my daughter Emily a one-sixth share of my estate,”- &c., but this is at once qualified by what follows: “The principal thereof to be held in trust and the income to be paid to her during the term of her natural life.” As in the concluding paragraph, testatrix appoints her two sons and her son-in-law “trustees to perform and fulfill the foregoing trusts,” and, as the foregoing trusts are those that relate to the daughters’ shares, it follows that the persons designated to hold are those three gentlemen. But how are they to hold? As they cannot properly perform their duties (e. g., the duty of collecting rents) unless they have a legal title, by construction, they take.it. Gilson v. Lord Montford, 1 Ves. Sr. 491; Zabriskie v. Morris and Essex Railroad Co., 33 N. J. Eq. 25; Lindley v. O’Reilly, 50 N. J. Law 646; Doe v. Woodhouse, 4 T. R. 89. As this title must be adequate to the performance of the duties imposed, it .is more than an estate for the lives of the trustees. The trusts may survive those lives. They, or their successors, must pay the income to Emily during her life, and if she exercises her power of disposition, they must transfer to her devisees. In the case of Julia, they must pay out of the income “proper maintenance and support,” and at her death divide the share among her brothers and .sisters surviving her. In the case of Mina, they must pay the income during her life; at her death they must pay it to her daughter Dorothea until she reaches the age ,of thirty years,- at which .time “the share shall go to the .said Dorothea, her- heiri? and assigns forever.” Properly to perform these trusts I 'think the executors should .take a fee.

The third paragraph strengthens this conclusion. The fee is needed if they wish to sell. The paragraph reads: ■

“I direct that at the request.of any of the cestui que trusts, the saicP trustees shall turn over to any good trust company as much of the share of’such oestui que trust as shall he r'eckoeed to personalty, and shall continue thereafter so. to do as such share is so reduced to personalty.

In Chandler v. Thompson, 62 N. J. Eq. 723, the court of errors and appeals held that the right to exercise a power of sale by implication is rigidly restricted to those instances in which it is. necessary to carry out the purposes of the testator’s will. In Lindley v. O’Reilly, supra, a testator had directed his executor to -purchase a suitable farm on which to erect buildings appropriate for a sisterhood and seminary and to apply the balance of money arising out of his estate for that purpose; and the. same court held that, as it appeared from the will that it was. testator’s intention to devote his entire estate, real, personal and mixed, to the object mentioned, the executor took a fee by implication, or at least a power of sale. There, a power of sale sufficed. Here, .as I have said, a fee appears to be necessary. If they have the legal fee, the executors may, of course, convey it. If they should, then, as Mr. Justice Depue said in the case last cited, the only question for this court to consider would be whether they have committed a breach of trust. In view of.the direction that as much of the share as shall be reduced to personalty shall, at the request of the cestuis■ que trust, be turned oyer to a good trust company, it would seem that they would not have done so. The language at once negatives the commission of a breach and indicates that it was testatrix’s intention to vest them with a power to sell.

It is argued that the paragraph I am considering goes further and gives a power to sell the whole fee. Its language is not very clear, but I think it sufficiently appears that the right to sell is intended to accompany the trust and not to go beyond it. In the first place, testatrix appoints her two sons and her son-in-law “to perform and fulfill the 'foregoing trusts.” The foregoing trusts are those that relate 'to the .three daughters,, unless the power to make a partition be included. Then comes' the direction to turn over the shares reduced to personalty at the request of the cestuis que trust. Here, again, the will speaks only of shares of the cestuis que trust. The meaning of the words “and the proceeds and income only shall be divided to the shares (that is, as I understand it, to the shares just mentioned) unless a general division of the real-estate shall be made,” is somewhat obscure. The word “proceeds” -would seem to mean something other than income—proceeds of what? Evidently, proceeds of that 'which has just before been mentioned—“so much of the share of the three daughters as may have been reduced to personalty.” It is these proceeds which are to be divided to the shares “unless a general division of the real estate shall be made.” But what does testatrix mean by a “general division ?” She would seem to mean that when the division is made it is to be a general not a partial one.

Hnder the will, as I construe it, there is no difficulty in disposing of the estate by sale. The two sons and Mrs. Parker may sell their own shares, because they are absolute owners. The two sons and Mr. Parker may sell the other shares because they are trustees. Thus, proceeds may arise that may on the request of either of the three daughters be turned over to the trust company before a general division.

In this connection the language of the clauses giving life interests to the three daughters is significant. In each devise and bequest it is said that -the trust is -to terminate on the daughters’ death intestate. This maj'' occur before the real estate is sold. Certainty, the right to sell, so intimately blended with the other trusts, .would not survive them. If-it would not, we, would have, on the construction contended for by counsel, the singular situation of a power existing as to the shares given out and out and extinguished as to the shares -that were held in trust.

Whether the testatrix contemplated the result here reached or not, .the scheme is not irrational and might well have been intended. Two of the trustees were her sons. It was not irrational to give them their shares out and out. The' other was her son-in-law, a prominent lawyer. It was not irrational to give his wife’s share out and out. They could sell or not as they pleased. But that the estate might be property administered, it was, in the Gase of the daughters having only life estates, desirable to give a right to convert the land into money, and this right was put into the hands of the very persons who took, or whose wife took, shares in fee-simple. The whole fee could thus be -completely disposed of without applying to the court. The construction put upon the will accords with its language and satisfies all practical requirements. There is no attempt, by refinement, to avoid the operation of the rule so- strongly emphasized by Mr. Justice Van -Syckel.


author: Leaming, V. C.

text:
    Anngenette K. Lawshe v. Trenton Banking Company.
    [Submitted October 18th, 1916.
    Determined November 21st, 1916.]
    1. Where a married woman assigned a mortgage to a bank to secure debts due the bank from her husband’s ccftnpany, and the repayment of money to be advanced Mm, the bank is not required to inquire whether the act was free and voluntary.

      2. A wife may transfer her property to her husband without pecuniary consideration, or may pledge her property to secure her husband’s obligations. The legal presumption is that such transfer is valid.
    3. In such case if it be established that the assignment of the mortgage was procured by the husband through undue influence over his wife and that the bank did not change its position as to the pre-existing indebtedness, the defendant is entitled to the protection of a purchaser for value without notice to the extent of the money thereafter advanced upon the faith of its security, but not as to money due it at the time of the transfer.
    On final hearing on bill to set aside assignment of mortgage.

      Messrs. Qeraghty & Weelans, for the complainant.

      Mr. Frank S. Kaizenbach, Jr., for the defendant.
   Leaming, V. C.

April 30th, 1915, complainant was the owner of a certain mortgage, and on that date executed an assignment of the mortgage to defendant banking compony. This suit has been brought by complainant to set aside that assignment.

Complainant’s husband was at that time president and owner of one-half the .capital stock of a certain manufacturing corporation known as the Trent Tile Company. That corporation had for some years discounted its commercial paper at defendant bank, and complainant’s husband had uniformally endorsed the paper not onfy with the name of his corporation but also with his personal endorsements. The evidence fully establishes the fact that on the date above named the mortgage here in question, assigned to the bank by complainant in due form, was delivered to the bank by complainant’s husband to secure the payment of the indebtedness then due to the bank from the company above named, and also to secure such additional indebtedness as might thereafter arise in the same manner.

The relief which is here sought in behalf of complainant is based upon-the claim that the assignment of the mortgage was executed by complainant at the instance of her husband witliout consideration and without any knowledge upon her part of the purpose for which the assignment was made and - without independent counsel or knowledge touching the nature or consequences of her act and Avholly as the result of undue influence ppon the part of her husband, and that the assignment -in no sense represents complainant’s voluntary or intelligent act.

1. It will be observed that while the assignment of the mortgage AA'as made by complainant directly to the bank, it was, so far as her interests were concerned, in effect, a gift by her to or for the use of her husband. If the present controversy Avere alone between complainant and her husband, I think it clear that she would be entitled to reclaim the mortgage. The evidence fully discloses that complainant was without business experience, and that she implicitly relied upon her husband in all matters relating to her pecuniary affairs. Indeed, this very mortgage was,-as I am convinced, procured for complainant by her husband, Avithout her knowledge, to secure the pajunent to her of money which, she had inherited from her son, and AAdiich money her husband had, also Avithout her lmoAvledge, loaned to the business concern already referred to. When complainant’s husband subsequently needed the use of that mortgage for the benefit of his business, he asked complainant to execute an assignment of it to defendant bank and she assented. He merely stated to her that it Avas for their interest for her to. do so and made no explanation whatever of the proposed transaction. She was not appraised of the nature of the transaction by anyone. When she executed the assignment before an acknowledging officer, who had been sent to her at her home for that purpose, she'had not been even informed whether the assignment was absolute or merely to secure some indebtedness. She kneAv that the assignment was to defendant bank and knew nothing more about the matter except that it was her husband’s wish that she should execute it, and her confidence in her husband' obviously, impelled her to comply with that wish on his part. The mortgage was $20,500 in amount and represented all complainant was worth except a certain residence property Avhich AAras worth about $5,000 above encumbrances. She was sick at the time, and, according to the testimony of her physician, AAras physically unable to maintain sustained thought adequate to comprehend any business transaction which was not a simple affair, had it been explained to her. I think it clear that as between complainant and her husband complainant would be entitled to relief from the operation of the assignment.

2. But the assignment was to defendant banking company and the rights of that company must b^, considered. It is -urged in behalf of complainant that the banking company cannot be accorded the status of a purchaser without notice.' This contention is based upon the claim that officers of the banking company knew that the mortgage was assigned to the bank by complainant to secure obligations of others without valuable consideration moving to her, 'and also knew that complainant was the wife of the person from whom the' bank received the assigned mortgage and was without business experience,. and also knew that complainant was at the time ill, or had been ill. That knowledge, it is claimed, was operative to put the bank on inquiry to ascertain whether the assignment was the intelligent and voluntary act of complainant and free from any dominating influence of her husband.

Assuming defendant -banking corporation to have been chargeable with knowledge of all the facts above suggested, I am unable to reach the conclusion that such information was operative to impose a burden of inquiry of the nature • suggested. A transfer from a wife to her husband or for his use of property belonging to her, without a pecuniary consideration moving to her, or a pledge of property by a wife to secure-an obligation of her husband ■ without pecuniary consideration moving to her, is sanctioned by law. The legal presumption is that such a transfer is valid. As the law imports- validity, it necessarily recognizes the right of any person receiving the benefit of such transfer to act and rest upon the presumption of validity, unless some other fact is brought to his knowledge to appropriately raise a suspicion or doubt. No fact of that nature was brought to the knowledge of defendant company: There was no knowledge of serious illness of complainant and no knowledge suggesting undue influence over her. On the contrary, the bond and mortgage were delivered -to defendant bank by the husband of complainant accompanied by an assignment executed by her with all the formalities and safeguards provided by law for flic protection of the assignor against coercion and imposition by means of an acknowledging officer, as suggested' in LeGendre v. Goodridge, 46 N. J. Eq. 419, 428, and in Fretz v. Roth, 70 N. J. Eq. 764, 766, and no circumstance existed to suggest a suspicion that fraud or undue influence had been exercised, or that in the execution of the assignment complainant had not been fully apprised of the nature and consequences of her act. Views of this nature are made the basis of decision in Lougheed v. Armstrong, 84 N. J. Eq. 49. See, also, as to legal presumption of validity in a transfer of property bjr a married woman to secure the debt of another, Warwick v. Lawrence, 43 N. J. Eq. 179, and Walker v. Dixon Crucible Co., 47 N. J. Eq. 342. A series of English cases are to be found in which conveyances made by children who have recently come of age to secure debts of their father have been set aside for want of independent advice, in instances in which the creditor has been apprised of the fact that the child had only recently come of age; but these cases proceed upon the presumption that such a child is under the influence of his parent, or, as there phrased, unemaaicipated. The following are cases of that class: Bainbridge v. Brown, L. R. 18 Ch. Div. 188; Kempson v. Ashbee, L. R. 10 Ch. App. Cas. 15; Archer v. Hudson, 7 Beav. 551; Baker v. Bradley, 7 De G. M. & G. 597; Thornber v. Sheard, 12 Beav. 589; Maitland v. Irving, 15 Sim. 437; Maitland v. Backhouse, 16 Sim. 58. It will also be observed that these cases chiefly relate to securit3r for pre-existing debts as distinguished from debts incurred by reason of the securhy. I am convinced that defendant must be accorded the status of a purchaser without notice.

3. It has already been stated that the evidence satisfies me that the mortgage was in fact given to defendant to secure the indebtedness then existing and thereafter to arise. A portion of the money now due to defendant was advanced after the mortgage was assigned. As to that amount defendant clearly is entitled to the protection afforded a purchaser- for value without notice. See note to Smith v. Ward, in 1 Am. Dec. 81; Big. Fraud 406. But as to the preceding debt a different rule obtains. The evidence discloses no change of position of defendant on the faith or credit of the mortgage with reference to the preceding debt; it does not even appear that any extension of time for payment of the preceding debt arose by reason of the mortgage security. In such circumstances, defendant cannot be accorded the rights of a purchaser for value as to the preceding debt as against the sujierior equity of complainant. This view has been adopted by this court in Reeves v. Evans (Vice-Chancellor Reed), 34 Atl. Rep. 477, and Martin v. Bowen, 51 N. J. Eq. 452. See, also, Wheeler v. Kirtland, 24 N. J. Eq. 552, 555; Mingus v. Condit, 23 N. J. Eq. 313; Tate v. Sec. Trust Co., 63 N. J. Eq. 559; 1 Big. Fraud 406.

Defendant will, accordingly, be entitled to enforce the lien of the mortgage, to the extent of the money advanced in fa'itli of that security; that amount I understand to be $8,775.

I will advise a decree in accordance with the views herein expressed.