Volume 46 — New Jersey Equity Reports

<p>1. By his will, a testator bequeathed and devised the residue of his estate to the executors of the will in trust — “1. That they sell, dispose and convey the same, at public or private sale, at such times and on such terms as they in their, his or her discretion may think proper. 2. That they divide such real and personal property, or the proceeds thereof, into four equal parts or shares, one of such shares for each of my daughters.” The trustees were then directed, “ To convey, pay and assign ” three shares, and to “ hold, retain, invest and keep invested ” the other share, and collect “ the rents, interest and income” arising therefrom, and to pay taxes, assessments, insurance and repairs until the “division or sale.” — Held, that the testator thereby created an active trust as to the whole of the residue of his estate, in the performance of which the trustees were to determine according to their judgment, exercised in good faith, whether the several parcels thereof should be sold or divided, and en sell or divide according to such determination.</p> <p>2. A court of equity will not decr< e a partition urged by one cestui que trust and resisted by another, where its effect will be to override and put an end to an active trust and thus defeat the testator’s intention, if the trustees stand ready to execute the trust in good faith.</p> <p>3. Where, however, trustees so disagree as to obstruct a prompt and proper execution of such a trust, or act mala fide in its execution, a court of equity will interfere and compel them to properly perform the trust, or will itself execute the trust.</p> <p>4. Trustees are not disqualified to act by the fact that they are also cestuis que trustent.</p>

<p>A vendor, in a written receipt for part of the purchase-money of certain described lands, agreed to convey them to the vendee in fee, free from all encumbrance, upon the payment of the balance in cash within five days thereafter. The vendee made several bona fide but unsuccessful efforts to find the vendor and pay him as stipulated, and a judgment against the vendor meanwhile remained a lien on the premises. Twelve days after the expiration of the time limited the vendee tendered the balance of the purchase-money to the vendor, and upon his refusing it, deposited it in a neighboring bank, ready to pay him at any time. On a bill for specific performance, filed shortly afterwards — Held, that time was not of the essence of the contract, and that the status of the parties was not so changed by the delay that the enforcement of the contract would be inequitable or unjust.</p>

On bill, answer, replication and proofs. Ann Hall died in the month of January, 1820, testate. Her will was admitted to probate by the surrogate of Salem county on the 26th day of that month.

<p>1. Where the charter of a savings bank provides that, “said corporation shall invest no money * * * on bond and mortgage except on real estate worth at least double the amount of the sum invested, above all encumbrances,” it requires that the landed security shall be worth double the encumbrances upon it and the investment in it, combined.</p> <p>2. The managers of a savings bank, without capital and incorporated for the express purpose of receiving deposits of moneys and executing trusts, using and improving such deposits in a prescribed manner and dividing the net income and profits among the depositors and repaying the deposits, are bound to invest the bank’s money, not only according to the requirements of the charter of the bank, but also with a prudence commensurate with the character and objects of the institution.</p> <p>3. In discharge of their obligations, such managers are authorized to define the duties of the officers of the bank, and, in order to facilitate the transaction of business, appoint small committees from their number to superintend those officers and dispose of detail and routine work, but they are, at the same time, bound to a reasonable supervision of such officers and committees, and to knowledge of their business methods.</p> <p>4. In a suit by the receiver of such a bank against its managers, where a loss is shown to have resulted from dishonesty, disregard of the charter’s requirements or culpable negligence, all the managers who are chargeable with such faults must be held alike responsible, so far as the receiver is concerned, without reference to the degree of their dereliction, but, as between themselves, there may be grades of liability according to the degrees of culpability.</p> <p>5. Such grades may be as follows: First, those managers who were concerned in, and who profited by, an unlawful, imprudent or negligent transaction that resulted in loss; second, those who, though concerned in such a transaction, did not profit by it; third, those who, though they did not know of the transaction which occasioned the loss, by the negligent and improper discharge of some duty which was specially imposed upon them, made such loss possible; fourth, those who, though they did not know of the transaction 'which occasioned the loss, negligently omitted to perform a duty specially charged upon them, the proper performance of which would have prevented the loss; and the fifth, those who, though not charged by the by-laws with any special duty, failed to exercise that reasonable circumspection over the affairs of the bank which the law demands of them.</p> <p>6. Loans upon second mortgage, although permitted by the charter of the savings bank, must be condemned as imprudent where the first mortgage is large and the. investor is obliged to be perpetually ready to pay the first encumbrance.</p> <p>7. Where the charter of a savings bank required that the landed security for an investment shall be worth twice the encumbrances on the land and twice the sum invested, and in case of a specified investment it was worth double the previous encumbrances and double a portion of the investment, but not double the entire investment — Held, that the investment was an entirety, and that the fact that the landed security was not worth twice the encumbrances and twice the whole investment, made the entire investment illegal, and hence, that no part of it was lawful.</p> <p>8. Where the charter of a savings bank provided, “ That said corporation shall invest no money in any public stock other than such as are created under the laws of the United States, of New Jersey, New York, or in the public stocks of Jersey City or Newark in this State, or of the cities of New York or Brooklyn, in the State of New York, authorized by the law's of those States respectively, nor on bond and mortgage, except on real estate worth at least double the amount of the sum invested, above all encumbrances, nor in stock of any incorporated company whatever” — Iidd, that investment upon mere personal security was unauthorized and illegal.</p> <p>9. A savings bank manager, in the discharge of his duties, is bound to possess ordinary competency, and cannot excuse misconduct by pleading grtiss ignorance.</p> <p>10. Managers of a savings-bank will be held -to - a knowledge of the provisions of its charter, unless they make it appear affirmatively that they have excusably mistaken the meaning of those provisions.</p> <p>11. An excusable mistake in the meaning of a law is one which occurs after all means of information that suggest themselves to a man of ordinary care and prudence have been exhausted.</p>

<p>On motion to strike out answer by way of cross-bill.</p>

<p>On final hearing on bill and answer and proofs taken in open court.</p>

<p>1. All that a prior or existing creditor need do to successfully impeach a' voluntary deed, is to show that he was a creditor of the grantor when the deed, was made, and that the deed is without the support of an adequate valuable consideration. From these two facts the law raises a conclusive presumption of fraud.</p> <p>2. But a creditor, whose debt is contracted subsequent to the execution of a voluntary deed, in order to be entitled to have such deed set aside, must show actual fraud; he must show that the deed was made with intent to defraud such persons as should, subsequent to its date, become creditors of the grantor.</p> <p>3. When,a voluntaryideed is set aside as fraudulent against prior or existing creditors, subsequent creditors are not entitled to be paid out of the money realized from the sale of the land unless they show that the deed was also’ fraudulent as to them.</p>

<p>1. Where a corporation is organized under a statute authorizing the formar tion of corporations to accumulate a fund to be paid to the widows and children of deceased members, neither the corporation nor a member can divert any part of the fund from those for whose benefit it was accumulated.</p> <p>2. Where the beneficiaries of a benevolent corporation are prescribed by law, it is an evasion of its policy, and a violation of its letter, to say, that-where a member has named a person not within the class to be benefited, and the corporation has issued the certificate to such person, such acts shall deprive-the proper person, or class of persons, of all right to or interest in the fund.</p> <p>3. A falsehood or fraud that does not result in legal injury can neither be-made the foundation of an action nor the ground of a defence.</p> <p>4. The phrase “legal heirs,” used in one of the defendant’s by-laws, directing that in case a member makes no appointment of a beneficiary, his benefit shall, on his death, be paid to his legal heirs dependent on him, should be construed to mean next of kin.</p> <p>5. Where there is a civil wrong- there ought to be a remedy, and if the law gives none, equity may take jurisdiction in order that what is right maybe-done.</p>

<p>On motion to strike out cross-bills.</p>

<p>On final hearing on bill, answer and proofs taken in open court.</p>

<p>1. Courts sometimes, in construing wills, read “or” as meaning “and,” and “and” as meaning “or,” but such departures from the words of the will are never made, except it is plain that it is necessary to do so in order to give effect to what appears to be the clear intention of the testator.</p> <p>2. All doubts are to be resolved in favor of the testator’s having said exactly what he meant.</p>

<p>Mr. S. O. Bergen, for the complainants.</p> <p>Mr. P. 8. Scovel, for the defendants.</p>

<p>On bill, answer and proofs.</p>

<p>On bill, answer and proofs.</p> <p>This is a friendly suit by a widow against ber husband’s executor and devisees, the latter being her infant children. The subject- of the controversy is the sum of $2,526.59, part of the proceeds of the sale by the executor of certain mortgaged real estate of the testator situate in New York. Its ownership depends upon the construction of the testator’s will in connection with the widow’s right of dower in the lands sold.</p> <p>The facts are as follows: Henry R. Burnet, the testator, and husband of the complainant, lived and was domiciled at Madison, Morris county, New Jersey, and died there January 7th, 1888. He left little or no personal property but was seized of considerable real estate in both New Jersey and New York • that in New Jersey being worth about $40,000, and free from mortgage encumbrance ; that in New York was worth $60,000 or more, and was encumbered by three mortgages, amounting in the aggregate to $11,000, one of which was given prior to his intermarriage with the complainant, and two afterwards, in which latter the complainant joined. He also owed about $14,000 of other indebtedness, about half of which was in the form of a judgment confessed by him in this State shortly before he died.</p> <p>His will, dated December 13th, 1887, four weeks before his death, omitting the formal parts, is as follows :</p> <p>“First. It is my will, and I do order and direct, that all my just debts and funeral expenses and testamentary charges be duly paid and satisfied out of my personal estate by my executors hereinafter named and appointed as soon as conveniently can be after my decease.</p> <p>“Second. In case my personal estate shall be insufficient to pay my just debts, funeral expenses and testamentary charges, I further order and direct, and hereby authorize and empower my executor to sell, either at public or private sale, and for such prices as he shall adjudge expedient, such parts of my lands and real estate situate, lying and being in that part of the city of New York called Morrisania, as may be necessary for that purpose, and to make, execute and deliver good and sufficient deeds of conveyance to the purchasers thereof; and the proceeds of such sale or sales to appropriate and use to and for the payment of said debts, expenses and charges.</p> <p>“Third. All the rest, residue and remainder of my estate, real, personal and mixed, and wheresoever the same may be situated, which I shall die seized of, possessed of or entitled to, I give, devise and bequeath to my son, James Edgar Burnet, and my daughter, Mabel Howard Burnet, equally, share and share alike, to have and to hold the same to the said James Edgar Burnet and Mabel Howard Burnet, their heirs, executors, administrators and assigns forever.</p> <p>“Fourth. I nominate and appoint my brother, Benjamin W. Burnet, of Madison, New Jersey, sole executor of this my last will and testament.”</p> <p>The executor, finding the personalty insufficient to pay the debts, or any considerable part of them, took measures, as directed by the will, to sell a competent portion of the real estate therein mentioned for that purpose. To that end he applied to the complainant to unite in the sale and release her dower to so much of the lands as he should find it necessary to sell in order to pay the debts. This she declined to do unless her right of dower therein was secured to her, and claimed dower in the whole lands, without any abatement on account of the existing mortgages. The executor admitted her right of dower in the equity of redemption and in whatever surplus the lands should produce over and above the mortgages, but denied that it extended any further. Thereupon the parties entered into an agreement which fixes the value of the widow’s dower at a sum in gross equal to twenty-one and sixty-four hundredths per cent, of the proceeds of sale, provides for her joining in the conveyance and for payment to her out of that percentage, of the excess of the sale over the amount of the mortgages, and for a deposit in the Howard Savings Institution of Newark of that percentage on the amount of the mortgages, to await the event of a suit to determine her fight in it.</p> <p>The sales then proceeded (the widow joining in tne conveyances) until they amounted to $29,000, twenty-one and sixty-four hundredths per cent, of which amounted to $6,158.19. Of this sum $3,631 were paid to the widbw, and $-2,526.59, representing twenty-one and sixty-four hundredths per cent, of $11.672.33, the amount of principal and interest due on the mortgages, were deposited in the Howard Savings Institution to await the event of this suit.</p> <p>The widow then filed her bill, claiming the 'fund in question.</p> <p>At the hearing, proof of the law in the State of New York was made by offering in evidence the Revised Statutes of that State of 1827 and 1828, as found in Ranks, 5th ed. of 1859, and the decisions of the court were proved by offering in evidence a large number of the reports of decided cases found in the regularly published reports of that State.</p>

<p>Final hearing on bill, answer and proofs.</p>

<p>On bill, answer and proofs taken in open court.</p>

<p>1. Where damage results to an individual from the discharge of surface-water upon his land, in consequence of the proper exercise of power granted to a municipality to make and grade highways, no liability exists.</p> <p>2. But a municipality, under power to make and grade highways, has no right, by artificial drains, to divert surface-water from the course it would otherwise take and cast it, in a body large enough to do substantial injury, on land where, but for such artificial drains, it would not go.</p>

<p>1. The capacity required for a testamentary act is, that the testator can comprehend the property he is about to dispose of, the natural or other objects of his bounty, the meaning of the business in which he is engaged, the relation of each of these factors to the others, and the distribution that is made by the will.</p> <p>2. Inebriety, although long-continued and resulting occasionally in temporary insanity, does not require proof of lucid intervals to give validity to the acts of a drunkard, as is required where general insanity is proved; consequently, where habitual intoxication is shown, there will be no presumption that there was incapacitating drunkenness at the time the will was made. Such, a condition must be affirmatively proved, or the presumption of capacity will prevail.</p>

<p>On appeal from a decree of the orphans court of Morris county, upon exceptions to an account of trustees under a will.</p>

<p>1. The party alleging undue influence must prove it, either directly or by establishing such circumstances as will warrant a presumption against the instrument, which in the absence of affirmative evidence, showing that the paper was the spontaneous act of the testator, must control as a conclusion of fact.</p> <p>2. Tie mere fact that a favored legatee and devisee openly denounces one who is discriminated against, to a testatrix who is well in body and strong in mind, and surrounded by friends, and within reach of the protection of the very man who is denounced, is not sufficient proof to create a presumption against the instrument.</p> <p>3. It is as much the duty of courts to uphold the right of the‘owner of the property to dispose of it by will, according to his pleasure, as it is to see that he is not imposed upon in the exercise of that right.</p> <p>4. It is only upon allegations of fraud that the courts will inquire into the reasons for changes and inequalities in testamentary dispositions, and then they will consider them merely in connection with, and as corroborative of, proofs which tend to show that they were not the voluntary act of the person who made them.</p> <p>5. Held, under the circumstances of this case, that the will in question was not the product of undue influence.</p>

<p>On appeal from a decree advised by Vice-Chancellor Van Fleet, whose opinion is reported in Jones v. Davenport, 18 Stew. Eq. 77.</p> <p>The facts of the case are sufficiently stated in the opinion.</p>

The land upon which the house was so erected, and which is described in the mortgage, was a lot of twenty feet in width, and, without the building, is not worth over $250, but with the dwelling-house upon it, was worth about the amount of the mortgage, $1,500.

<p>On appeal from orders of injunction advised by Vice-Chancellor Bird, on the application of the attorney-general, under the statute in such cases, for non-payment by the appellant company of taxes for the years 1884, 1885, 1886 and 1887.</p>

<p>On appeal from a decree advised by Vice-Chancellor Van Fleet.</p>

<p>On appeal from a decree of the prerogative court, based upon the opinion of the ordinary, reported in 17 Stew. Eq. 496.</p>

<p>On appeal from an order of the chancellor in the case of John B. I. Robison v. Belleville Quarry Company, dated May 31st, 1889, respecting certain property ordered to be sold by the receiver.</p>

<p>On appeal from a decree advised by Vice-Chancellor Bird, in. Leeds v. Penrose, reported in 17 Stew. Eq. 464.</p>

Adams, asking for the construction of her husband’s will. She sets out that there has been a final settlement of her husband’s estate, and that there is a balance in the hands of the executors to which she is entitled to the use during her life. Two of the defendants, her sons, are the executors, and they have filed a plea admitting the final accounting by them, but setting up a former adjudication of the principal question raised by the orphans court.

<p>On appeal from an order of the chancellor, made September 16th, 1889, setting aside a sale in the case' of Inglis v. Inglis.</p>

The bill in this case was filed by Charles G. Landon to be relieved from a trust. The trust was created by Benjamin H. Hutton in his lifetime by two instruments.

Stevens, Fsq., advisory master, who filed the following conclusions: On May 24th, 1872, the complainant took from the defendants, Sarah P. Lane and her husband, a mortgage for $8,000 upon a farm in Somerset county.

Randolph, Esq., advisory master. Minora Coney filed her petition in the court of chancery, praying a decree of divorce from her husband, Warren M. Coney, on the ground of adultery. The defendant filed an answer to the petition by way of cross-bill, charging the petitioner with adultery. After a hearing upon the evidence, the advisory master advised a decree dismissing the petitioi, and granting the relief prayed by the cross-bill.

<p>On motion to dismiss the bill, under Rule 224.</p>

<p>On May 10th, A. d. 1873, Marshall L. Ward.and Peter Gerbert entered into a written agreement with ..the complainant,. Henry A. Page, by which they were permitted ,to extend a road, called Valley street^ which they had opened in certain lands-.owned by thejn in, Orange, over the lands of Page and into and through Clark place (a private way belonging to Mr.-Page') toMontrose avenue, in consideration of their entering into the following covenant with reference to the use of their land : ■</p> <p>"And the said parties of the first part, in consideration of the above, and of' 'the sum of one dollar in hand paid to the said party of the second part, the-receipt whereof is hereby acknowledged as aforesaid, do hereby covenant, ■ promise and agree, to and with the said.parly of the second part; his heirs and assigns forever, that neither the said parties of the first part, nor either of them, nor their or his heirs or assigns, shall or will, within the space or term of twenty years from the day of the date hereof, erect or maintain, or suffer to be erected or maintained, upon the said lands and premises of the said parties of the first part, within the bounds and limits aforesaid, or upon any part thereof, any hotel, tavern, ale or lager beer saloon, restaurant, livery stable, slaughterhouse, smith or tinshop, forge, foundry, furnace, machine-shop, steam-engine, hat factory, tannery, brewery, distillery, circus, or any factory for the production of glue, varnish, vitriol, ink, soap, candles, storage of turpentine, or any building or other erection for the carrying on of any other trade or business noxious, offensive or dangerous to the neighboring inhabitants; or any place or building in which shall be sold, or exposed for sale, any malt, vinous, spirituous or intoxicating liquors; nor within said space or term of twenty years erect or maintain, or suffer to be erected or maintained, upon said lands and premises, or upon any x>art thereof, any building or other structure which shall severally cost less than the sum of three thousand dollars of lawful money, except such out-buildings as shall bo necessary or convenient for the same as a place or places of residence or of business, it being understood and agreed that the foregoing covenant, and every part thereof, shall bo attached to the above-described lands and premises of said parties of the first part,, and shall run therewith, and shall be embodied in all future conveyances of the same to be made by them, their heirs or assigns, during the space or term aforesaid; and that it shall be lawful, not only for the said Henry A. Page,.his heirs or assigns, hut also for any other person or persons deriving title from him or them, 01-eithbr of them, whether mediately or 'immediately, for my of the said lands and premises belonging to him, or either of them, as aforesaid, to institute and prosecute any suit or other proceeding at law or in equity for any violation or threatened violation of said covenant, or any part thereof.”</p> <p>On' December’ 15th, 1873, Messrs. Gerbert and, "WM'd, with their wives, conveyed a portion of their lands, which were within the agreement referred to, to one Willard E. Howell by deed, duly recorded, containing the following covenant by the grantee:</p> <p>“And the said party of the second part doth for himself, his heirs and assigns, covenant to and with the said parties of the first part, their heirs, executors, administrators and assigns, that neither the said parties of the second part, nor his heirs or assigns, shall, or will, within the said space or term of twenty years next hereafter, erect or maintain, or suffer to be erected or maintained, upon said lands and premises, or any part thereof, any building or structure which shall severally cost at least the sum of three thousand dollars of like lawful money, in addition to such out-buildings as shall be necessary or convenient for said house or houses as a place or places of residence, it being understood and agreed that the foregoing covenant shall be attached to the above-described lands and.premises and shall run therewith; and that it shall be lawful, not only for the parties of the first part, or either- of them, their heirs and assigns, but for any other person or persons deriving title from them, whether'mediately or immediately, for any of skid lands and premises conveyed unto the said parties of the first part aforesaid,-to instituté and prosecute any suit or other proceedings at law or. in equity for any violation or threatened violation of the said covenant, or any pai-t thereof; and, also, that said covenant shall not be enforced personally against any person or persons not being the- owner, or owners of said above-described land and premises, or a part thereof, at the time of such violation oi; threatened violation of said covenant, or any part thereof.”</p> <p>On June 19th, .Í877, Howell, together with his wife, by deed, which was duly recorded, conveyed to Charles R. Jacqui a portion of the lands which had been conveyed to him by Gerbert and Ward. This deed did not contain any restrictive covenant, and did not refer to.the agreement between Gerbert and Ward and Page.</p> <p>On May 3d, 1880, Jacqui conveyed.to one Scott by deed, duly recorded, but without restrictive covenants or reference to the agreement between Gerbert and Ward and Page, and on August 4th, 1886, Scott conveyed to the defendant, Michael ,J. Murray, without restrictive covenant or reference to the agreement .aforesaid, a plot of land included- within- the agreement fifty feet wide and, about one hundred and seventy feet deep, fronting on Yalley street.</p> <p>On August 1st, 1887, Murray mortgaged the.land he had purchased to George P. Kingsley, who is a defendant in this suit.</p> <p>Messrs. Murray aud Kingsley employed a lawyer to examine the title to the plot about to be purchased by Murray, and that lawyer, in process of such examination, obtained from the register of Essex county an official certificate of search, w'hich exhibited as of record the agreement between Ward, Gerbert and Page as follows:</p> <p>“ Marshall L. Ward and Peter ' Gerbert</p> <p>to</p> <p>“ Henry A. Page.</p> <p>B. 17-457. Cons. $1.00.</p> <p>Ag’mt dated May 13, 1873.</p> <p>Ag’mt Bec’d June 17, 1873.</p> <p>Ag’mt as to Valley Street &e. and also with, restrictions as to buildings &c. &c.”</p> <p>The defendants know nothing of the agreement beyond this minute of it in the register’s certificate of search, but they both knew of the covenant which the deed from Ward and Gerbert to Howell contained.</p> <p>In 1887, Murray erected a house upon-his land, which, when finished, will cost about $2,000.</p> <p>The cause is now upon final hearing upon the pleadings and a state of facts agreed upon.</p> <p>By the state of facts it appears, in addition to the matters above set out, that on May 17th, 1873, Gerbert and Ward conveyed to Page a portion of the lands, which were covered by the agreement with him, by warranty deed, which does not conform to .their agreement and contain a restrictive covenant. Upon the land thus had the complainant, before the defendant Murray began to erect his house, built a greenhouse seventeen feet wide, one hundred and fifty feet long and one story high. This building extended to the line of Valley street and there terminated in an office or store for the exhibition and sale of flowers and plants. At the rear of the greenhouse, connecting by a single door therewith, is erected a dwelling which is upon land not subject to the agreement with Gerbert and Ward. It would cost $2,000 to erect the greenhouse with its office and store, and $4,000 to build both the greenhouse and the dwelling. The greenhouse is four or five hundred feet south of the complainant’s residence, and three hundred and sixty feet north of Murray’s house. Four hundred feet north of Murray’s house, and outside of the lands covered by the agreement, and fronting on Valley street, is erected a dwelling that cost less than $2,500, and across the ■street from it another building that cost about the same amount, and then, to the north, Valley street is built up'with houses, some twenty or more, that range, in value, between $700 and $2,500 ■apiece, ten of which have been erected since the agreement of 1873 above referred to, and three of which (costing about $1,000 •each) were in process of erection when Murray commenced to build his house. In addition to the greenhouse and Murray’s dwelling, no other house is built upon Valley street, upon lands covered by the agreement, and only one building, upon that street, •to the south of those lands, and that house cost $8,000.</p>

On bill for construction of will, and direction to administrator ■cum testamento annexo.

<p>On bill and answer.</p>

<p>On bill, answer, replication and proofs.</p>

<p>On petition to set aside inquisition, and for leave to traverse.</p>

<p>On bill and demurrer. '</p>

<p>On bill and demurrers.</p> <p>The bill alleges that the complainant was seized of a plot of ■ground in Paterson, situate upon the southeast corner formed 'by the intersection of Pearl and Carrol streets, fronting about sixty-two feet on Carrol street and one hundred and twenty-five feet on Pearl street, upon which, in the year 1870, it had erected a church, built with stone.</p> <p>In April, 1881, the Paterson Extension Railroad Company, to whose rights, duties and liabilities the New York, Susquehanna and Western Railroad Company has succeeded, laid its route so that it included a strip from the southerly side of the complainant’s land, running longitudinally with, and close to, the church edifice, and thereupon, without condemning or paying for the complainant’s property, entered upon it and excavated a railroad cut, adjoining the church building, more than eight feet deep, and, although having license to do so, failed to preserve the church wall from injury, or to support it with á proper foundation, as the statute (Rev. p. 809) requires:</p> <p>By the cut, the natural support of the south wall of the ■church was weakened. In consequence thereof, and of the vibrations caused by the operation of the defendants’ railroad, the ’building was injured. Thereupon the complainant employed an ■architect and engineer, who, after examination, estimated the probable expense of repairing the church and making secure its foundation, and then requested the Paterson Extension Railroad Company to pay to it the sum thus estimated.</p> <p>The railroad company refused to comply with this request, but later, in the year 1881 or 1882, to use the language of the bill—</p> <p>“In consideration of the injuries done your orator in the premises, offered1 and undertook and agreed to and with your orator that they, the said defendants, would thoroughly repair the damage done to said church building and its foundation wall, and that they would make the said -church building and its ■ foundation wall as firm, secure and stable as they were before the maldng of such excavations, by putting under them a solid and sufficient concrete sub-foundation, and, in addition, would give to your orator one thousand dollars incasli towards the cost of repairing and redecorating the interior of its said church building, which said agreement was made orally by and between said defendants and your orator, and was not reduced to writing.”</p> <p>After this agreement was entered into the railroad company built á retaining wall between the church and the railroad, and pretended to put a solid concrete sub-foundation under the church wall, and then, representing that the work had been doñeas agreed, paid the complainant $1,000, which the complainant accepted in the belief that the representations concerning the-work were true. Shortly after this payment the south wall of the church began to sink; cracks appeared; the wall drew away from the roof; portions of the church ceiling fell, and the floor on the side adjoining the railroad sank. The complainant again employed an engineer, and upon his reporting that the church was not safe for use for the purposes for which it was designed, notified the defendants to proceed to repair it, and to-put it in the firm, safe and secure condition that it was in before-the railroad cut was made. The defendants refused to do so. Thereupon the complainant caused plans and specifications of the work necessary to be done to be made and submitted to the defendants for suggestions, alterations or amendments and their approval, but the defendants would not have anything to do-with the plans or with the proposed work. The complainant then caused the work to be done at a cost of about $-9-,000. As-the work proceeded, the discovery was made that the defendants-had not only failed to carry out their contract to build a solid concrete sub-foundation, but- had actually damaged the church wall by the work which they did do.</p> <p>After the complainant completed the work of restoring the church, it requested the defendants to pay the cost, but the defendants refused to do so.</p> <p>The complainant was deprived of the use of its church for: six months from the 10th of June, 1887, and during that time: was obliged to hire places for its congregation to meet in, and to go to the expense of constantly moving its furniture and books.</p> <p>It was a free church, supported by the voluntary contributions-of its congregation. When the building was closed many members of its congregation went to other churches, and in consequence its revenues were reduced.</p> <p>The defendants have never paid for the land which they took.</p> <p>The bill prays that an account may be taken of the moneys' necessarily expended in carrying out the work agreed to be done by the defendants and in repairing the church, and also of the loss of revenue to the complainant, and that the value of the land taken by the defendants, and the damages occasioned by the taking thereof, may be ascertained, and that the defendants may, to use the words of the bill— :</p> <p>“ Be decreed, to specifically perform tlieir said agreement by reimbursing your orator for all such'sums of money by it laid out and expended in and about the carrying out of said agreement of said defendants, and for the necessary repairs and expenses incident upon and resulting from the non-performance of their said agreement by the said defendants, and that the said defendants may also be decreed to pay over to your orator such sum of money as may bo ascertained to equal the losses from loss of revenue or other causes resulting from the building and operating of said railroad by the defendants, and that said defendants may also be decreed to pay over to your orator such sum of money as shall be ascertained to be the value of the said strip of its land and premises so appropriated, occupied and held by said defendants, and the damages by reason of the taking thereof, together with interest on all sums found due to your orator.”</p> <p>The defendants separately demur to this bill.</p> <p>The Paterson Extension Railroad Company demurs to the whole bill upon two grounds — first, for want of equity, and, second, because the bill is multifarious, in connecting matters which have no connection with each other and in joining matters in which the demurrant has no concern.</p> <p>The New York, Susquehanna and Western Railroad Company demurs — first, as to that part of the bill which seeks reimbursement of the moneys expended in repairing and making' secure the church, upon two grounds: (a) for want of equity, and (6) because it appears that the cause of suit did not accrue within six years; and, second, as to that part of the bill which seeks compensation for the value of the land taken, and damages by the taking, with interest, for losses in the church revenue, and for damages caused by the operation of the railroad, for want of equity.</p>

<p>On bill and demurrer.</p>

<p>On final hearing on bill and answer and proofs taken in open ■court.</p>

<p>■ On final hearing on bill and answer and proofs taken before a master.</p>

<p>On final hearing on bill, answer and proofs.</p>

<p>On final hearing on bill and answer.</p>

<p>On final hearing on bill, answer and proofs taken in open •court.</p>

<p>1. Every valid contract for the conveyance of land creates, in a qualified! sen.se, the relation of trustee and cestui que trust, provided it be one which, equity will enforce.</p> <p>2. Courts of equity never enforce an executory contract which is without consideration; they treat it as a nullity.</p> <p>3. Courts of equity will not enforce a promise to create a trust or make a declaration of trust unless the promise is supported by a valuable consideration.</p> <p>4. Courts will not enforce a promise to make a gift.</p>

<p>1. Except in the case of insolvent estates, the orphans court has no authority to try disputed claims, nor to determine who are, and who are not, creditors of a decedent’s estate.</p> <p>2. A decree made by an orphans court, in a case where the estate has not been declared insolvent, adjudging that a creditor has, by inequitable conduct, discharged the estate from liability to him, is coram non jvdice.</p>

<p>1. One of two adjoining owners of land in the city of Camden who erects a wall over the property line, nnder the ordinances of that city respecting party-walls, cannot claim the benefit of such wall as a party-wall, unless it be built of the width prescribed by the ordinance and also be solid and free from any ■openings.</p> <p>Qucere. Whether the ordinance in question is valid under the limitations of ■our constitution?</p>

<p>The publisher of a newspaper called The Summit Record, published at Summit, became financially embarrassed, suspended its publication, and sold the plant to a person who held a chattel mortgage upon it, who, within a month, leased the plant by written contract to the defendant for one year. The contract contained a recital that the plant had been used in the publication of the Summit Record, and a covenant on part of defendant to use it for the purpose of continuing such publication, and to redeliver it at the end of the term. No express mention was made of the good-will or right to use the name and title “Summit Record.” Defendant took possession under the lease and resumed the publication by the same title, numbering his first issue Vol. 3, No. 1 — inserting in it a leading article stating, in substance, that his paper would be a continuation of the former publication — and continued the publication for over four years without changing the relations arising out of the-lease. The title of the landlord in the lease and reversion became vested in complainant, who put an end to the lease, demanded and received from defendant the possession of the plant, and commenced the publication of a paper by the same name at the same place. — Held, that the right to publish a newspaper by the name “Summit Record” was, by the contract and conduct of the parties, made an appurtenant to the plant and became vested in complainant, and that equity would restrain defendant from continuing the publication of a paper by that name.</p>

<p>1. One C. entered into an agreement with. E. and three others, by which the 'latter were to form and incorporate an association to promote the sale of certain real estate belonging to C., it being the intention that these incorporators should do whatever would induce persons to take stock in- such association, and to continue therein. After the formation of such association, C. wrote to the incorporators that he would instruct the trustee to whom he had conveyed the land in question to pay to them “ $25 on each lot paid for by the association at the rate of $150, as compensation.” Held, that this was not an assignment in prcesenti of a specified portion of the proceeds of sale, but a payment to which the performance of the contemplated services in selling lots were a condition precedent.</p> <p>2. The constitution and by-laws framed by tñe incorporators in pursuance of their agreement with 0., provided for the election of officers annually, and at the first election all of such incorporators were chosen. Subsequently E. failed of re-election as treasurer, and took no active part afterwards in promoting the success of the association. Held, that E. was not entitled to compensation for the latter period, as by the terms of the agreement, which made no reference to his holding office, the contemplated services must be rendered ¡as well out of office as in it.</p>

<p>Bill for specific performance. .On demurrer.</p>

<p>Bill for specific performance, by vendor against vendee. On demurrer.</p>

<p>Heard on bill, answer and proofs.</p>

<p>On bill, answer and proofs.</p>

<p>On petition for divorce.</p>

<p>Upon a bill by the executors named in a "will not yet admitted to probate -ai receiver was appointed to take the rents and profits of the real estate of tKedecedent, pending litigation upon caveat to the probate in the prerogative-court and in ejectment by the heirs at law against the devisees for a portion of the land in the proper law court; afterward a verdict and judgment passed in the law court against the devisees upon the issue of devisavit vel non, and the-will was admitted to probate in the prerogative court. On motion to withdraw the receiver — Held, that.the judgment in the ejectment removed all uncertainty as to who was entitled to the possession of the land, and that the receiver-would be withdrawn notwithstanding a writ of error was brought to review the-judgment.</p>

<p>1. Personal estate is the primary fund out of which legacies are payable. The real estate is not charged with the payment of legacies, unless the testator intended it should be, and that intention must be expressly declared, or fairly and satisfactorily inferred from the language of the will.</p> <p>‘¿. Where legacies are charged generally upon real estate, and there are qsecific devises, the legacies will not be held to be charged upon the lands so; specifically devised.</p>

<p>On final hearing on bill, answer, replication and cross-bill, and proofs in open court/</p>

<p>1. The statutory requirement that a testator shall sign his will is complied ■with, though the testator’s hand be guided in writing his signature or making his mark or sigmm on the paper, if his purpose to sign, and best physical effort to do so, participate in the act.</p> <p>2. Inference that a will is the product of undue influence will not be drawn .from circumstances which are shown to have occurred naturally and harmlessly.</p>

<p>1. The ordinary cannot appoint a guardian of a minor whose father is living, unless the child owns property.</p> <p>2. In no civilized country can a man have two lawful wives at the same time.</p> <p>3. The mother of a bastard child is its natural guardian, and as such, is bound to maintain it, and has a right to its custody and services.</p> <p>4. An illegitimate child, on the death of its mother, becomes an orphan, and the ordinary may appoint a guardian for it.</p>

<p>1. A person aggrieved by a decree of the .orphans court is one whose pecuniary interest is directly affected by the decree; one whose right of property may be established or divested by the decree.</p> <p>2. Any one entitled to a part of the surplus of an intestate’s estate may appeal from the order allowing commissions, for the order, if erroneous, depletes the distributable surplus, and thus injuriously affects his interest.</p> <p>3. Commissions must, where a difference arises, be divided among two or more administrators according to the amount of service each has rendered, and service, in this connection, means, according to the statute, pains, trouble and risk.</p>

<p>Appeal from the decree, advised by Vice-Chancellor Bird, in ■Schlag v. Bridgeport Stemaboat Co.</p>

The testator left two children, viz., David Shoemaker and Mrs. Sarah E. Bassett, wife of the executor, and the children of a deceased son, Isaac, of whom complainant is one, and two of whom are infants. By his will testator directed his executor to sell his real estate, including the farm here in question, and to divide the proceeds among his children and grandchildren by stock. The executor advertised the farm in question for sale at Pedricktown, on November 28th, 1888.

<p>On appeal from a decree in Welch’s Executors v. Arnett, advised by Vice-Chancellor Bird, which directed an account to be taken, as stated in the opinion reported below:</p>

It is said by the defendant, that his answer contains a plain mistake of fact, which was never discovered until about three weeks since; he says that never before had he read the answer, nor did he know its contents, except that he furnished the facts to his solicitor, who prepared the answer and filed it without his knowing anything more as to its contents. These statements are all supported by affidavits of the defendant and of his counsel.

<p>Upon MU filed to restrain the construction of puMic sewers, by the operation of which, it was alleged, the water supplied by the complainant to the inhabitants of Newark would be injuriously polluted, the defendants’ answer and accompanying affidavits rendered it doubtful whether the apprehended nuisance would arise. — Hdd, that a preliminary injunction was thereupon properly refused.</p>

Schwenk advised by Vice-Chancellor Van Fleet, as follows: This cause coming on to be heard before the court in the presence of Frank Bergen, solicitor for and of counsel with the complainant, and Frederick Frambach, esquire, solicitor for and of counsel with the defendant, and the pleadings having been read, and the proofs of the respective parties offered and counsel heard thereon, and the court having considered the same, and it appearing that the said defendant, being an…

Garretson, an advisory master, as follows: It is on this 12th day of July, 1889, by Alexander T. McGill, chancellor of the State of New Jersey, ordered, adjudged, and decreed, that the complainant, William Rankin, Jr., is the owner, and is entitled to the possession of all the basement and all of the residue of the premises in the bill described, except the rooms on the first floor; and the said defendant, Eleanor Goar, shall surrender and deliver to the complainant the said…

Connor, as the administratrix of her late husband, aslss for an injunction restraining the defendant from pleading and offering in evidence, in an action at law now pending, which she has commenced to recover damages from the defendant for the death of her husband, a release given by the complainant under her hand and seal. Her husband was in the employ of the defendant as lead-burner, and was very skillful in his trade.

The agreement was entered into in August, 1884, and Page at once took possession, and made improvements, and prepared it as and for a place for summer resort for Sunday schools and picnics, and, for the accommodation of those so interested, placed seats for over a hundred guests on the premises. In December, 1885, the said Tolman was declared to be, and the return shows that he had been for more than two years, then last past, a lunatic.

Emery, one of •the advisory masters, who filed the following conclusions: This is a bill by a purchaser against a vendor, for the specific ■performance of a written agreement to convey lands. Held: that a custom of brokers so to act for both parties, without disclosure, was so unreasonable .and contrary to good morals and sound policy that it could not be sustained, and proof of it was inadmissible.

Dunning,, 16 Stew.. Eq. 62. Decree awarded a perpetual injunction restraining the defendant from filling up or obstructing a ditch through which the complainant’s lot was drained.

<p>On appeal from a decree advised by Vice-Chancellor Bird, whose opinion is reported in Camden National Bank v. Green, 18 Stew. Eq. 546.</p>

<p>On appeal from a decree of the chancellor, whose opinion is-reported in Dynan v. McCulloch, 1 Dick. Ch. Rep. 11.</p>

<p>On appeal from a decree advised by Vice-Chancellor Van Fleet, whose opinion is reported in Potter v. Hollister, 18 Stew. Eq. 508.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in Pitney v. Bolton, 18 Stew. Eq. 639.</p>

<p>On appeal from a decree of the chancellor, whose opinion is ^reported in Acton v. Waddington, 1 Dick. Ch. Rep. 16.</p>