Volume 61 — New Jersey Equity Reports

<p>Upon an order to show cause heard on bill, answer and affidavits, complainants, who are railroad companies, ask an injunction restraining defendants from interfering with their occupation of a small tract of land upon which they had laid a track in extension and continuation of a freight siding upon land admittedly owned by them. Oomplainants had a paper title to said small tract and claimed to be its owners. Defendants also had a paper title thereto and claimed to be its owners.—Held, that a case for interference by injunction was not made out: (1) because although complainants are common carriers of freight and have used the track in question from time to time in the performance of their duties as common carriers, its use is not essential to the performance of such duties and the deprivation of its use will not seriously impede them in such performance, and complainants do not offer' to take the land or to proceed to condemn defendants’ interest therein; and (2) because it appears by the affidavits and without contradiction that the track in question had been laid on said land by the license of defendants’ predecessor in title who was in possession thereof, which license had been revoked and the respective claimants to ownership had been thereby remitted to their original status, and it did not appear that what defendants proposed to do upon said land would cause irreparable injury to complainants or any injury for which they would not be adequately compensated in an action at law.</p>

- This bill was filed by Eillipp Kreissl as a stockholder in a corporation of this state known as the Distilling Company of America.

<p>1. The last clause of section 14 of the Married Woman’s act of March 27th, 1874 (Gen. Siat. p. 2013), declaring that nothing in the act should “enable husband and wife to contract with or to sue each other except as heretofore,” is not repealed by the amendatory act of June 13th, 1898. Gen. Btat. p. 2017.</p> <p>2. Compensation for services rendered by a wife to her husband, or to a firm in which her husband is a partner in a business conducted by him or his firm, under a contract of employment made between her and her husband, cannot be enforced by a bill in equity.</p>

<p>1. Upon a bill by executors and trustees for instructions, the action of the court should be confined to instructions as to present duty, or to duty likely to arise under present conditions.</p> <p>2. A direction in a will that testator’s estate shall remain intact for two years after his decease, and a devotion of the income during that period to a specified purpose, followed by provisions for the creation of certain funds, the revenue or income of which is bequeathed, such revenue or income will begin from the expiration of the two years, and not from testator’s death.</p> <p>3. Words occurring more than once in a will must be presumed to be used in all cases in the same sense unless a contrary intention appears in the context or they are applied to a different subject. When words “I desire” are used in parts of a will as directing the disposition of parts of testator’s estate, the same sense will be attributed to them in another clause of the will relating to the disposition of a part of the estate, where the context does not indicate any different intention.</p> <p>4. A devise of lands to a wife for life or during widowhood, and a devise thereof in remainder in fee to a son, followed by an express direction that the devisees shall sell the land and buy other land at a price not exceeding $8,000, and that any excess in price should be invested and added to testator’s estate, burdens the lands and the devisees thereof with a trust to be performed according to the direction.</p> <p>5. A provision that in case certain bequests cannot be realized from testator’s estate, they shall abate equally, followed by authority to sell lands in order to carry out the provisions of the will, permits executors and trustees vested with such authority, to resort to the proceeds of lands so sold, to make up such bequests, when the personal estate is insufficient for that purpose.</p>

<p>A bill disclosing no common subject-matter in respect to which complainant-seeks relief, but diverse and disconnected matters, in respect to some of which no relief is prayed for or could be granted as to some •of the defendants, is objectionable, and must be dismissed as to the •defendants duly objecting under rule 213.</p>

On demurrer. The bill demurred to was filed by holders of twenty-five bonds of the Staten Island Terra Cotta Lumber Company, which bonds are part of an issue of three hundred and fifty bonds of $1,000 each, issued by the said company and secured by a first mortgage on real and personal property of the said company, made by it to the Fidelity Title and Deposit Company.

<p>On final hearing on pleadings and proofs.</p>

On demurrers by the insurance company to the complainants’ bill, and to the answer by way of cross-bill of Mary Bardzik.

<p>1. The placing by a licensee of a municipal corporation, on a public •sidewalk, the fee of which is in an adjoining owner, of poles for furnishing light by electricity for private consumption, is a taking of such owner’s land, for which he is entitled to compensation, since the legislature has not authorized municipal corporations or their licensees to erect poles on sidewalks for conducting electricity for use in private lighting, but has, by act of April 21st, 189G (P. L. of 1896 p. S£g), authorizing the use of the public highways for distribution of electricity, forbidden such erection without the landowner’s consent.</p> <p>2. Act of March 24th, 1899 (P. L. of 1899 p. 399 § 67), authorizing the township committee to contract with any private corporation for supplying light for public use in the township, does not authorize the licensee of the township to use the public highway for private lighting without making compensation to the owner of the soil, since the authority given by impli•cation must be confined to lighting the streets within the municipality.</p>

On bill for specific performance of contract to convey land, and demurrer thereto.

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

<p>Where the purchasers of portions of mortgaged property remained for more than twenty years in the full, exclusive, open, and actual possession thereof, without admitting the title of the mortgagee, and no claim for the principal or interest was made against them, the lien of the mortgage is lost as to such portions, though the debt was kept alive by payments made by the owner of the other portions.</p>

<p>Heard on order to show cause, based on bill, answer and affidavits, why an injunction should not issue.</p>

Complainant’s bill alleges that in February, 1895, complainant and defendant entered into an agreement by which defendant obtained complainant’s services to secure business for defendant (an insurance company) from other companies, by which it was agreed that if no such business was secured, complainant should be paid $50 a week besides expenses, and that if business was procured, the compensation of complainant should be adjusted between complainant and defendant upon some…

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

<p>1. Right to set aside mortgages as void under the Ohattel Mortgage act (Gen. Stat. p. 2113 § 1¡. et seq.) for failure to record immediately, does not pass to the mortgagor’s assignee for the benefit of creditors to the exclusion of subsequent execution creditors.</p> <p>2. The right of a creditor, under Gen. Stat. p. 2113 ¶ 52, to avoid an unrecorded chattel mortgage of his debtor, passes to his assigns on the assignment of the debt.</p> <p>3. The rights obtained by a judgment creditor on the issuance and delivery of an execution pass on an assignment of the judgment thereafter, and may bo enforced by the assignee for the purpose of avoiding unrecorded chattel mortgages of the judgment debtor.</p>

<p>1. The subject of the jurisdiction of chancery and the orphans courts over the estates of infants and the appointment of guardians therefor, and their powers in the premises, reviewed.</p> <p>2. The court of chancery will not exercise jurisdiction to direct in advance the expenditure of the principal of the infant’s possible estate for his maintenance, but will leave the question of the necessity of expenditure to the judgment of the guardian, subject to the supervision of the orphans court on the settlement of the accounts.</p>

<p>Where defendant asserted title to an easement in a water course across complainant’s premises, and had gone on the premises, without complainant’s consent, to repair the stream every year since 1879, and had destroyed a gate erected by complainant to lessen the flow of the water, equity has no jurisdiction, prior to a settlement of the question of defendant’s rights at law, to quiet title to the easement, under the acts giving jurisdiction in case complainant is in peaceable possession of the property.</p>

<p>1. A certificate, insuring the life of a member of a beneficial society, cannot be assigned by the beneficiary to a creditor of the member insured, even with the concurrence of the member, when such an assignment is forbidden by a by-law of the order.</p> <p>2. A bill of interpleader, filed by the society, will not validate the assignment.</p>

<p>The will of the testator in the case stated construed.</p>

<p>Although an accounting by an executor hag been begun in the orphans court, the court of chancery will entertain a suit for an accounting in that court by next of kin and legatees of the testator where special reasons for proceeding in that jurisdiction are shown.</p>

<p>A stipulation in a deed of conveyance inter partes that the grantee shall assume and pay a prior mortgage on the premises, is a contract with the grantor simply for his indemnity and will not be regarded as a contract with the mortgagee for his benefit.</p>

<p>1. Upon the facts established in this case—Held, that the defendants, Louis Vogel and Catharine White, are not liable to account to the complainant under their partnership contract.</p> <p>2. The purchase by one partner of all the interest of another partner, in the absence of fraud, must, of necessity, be an adjustment, as between seller and purchaser, of the accounts of the former with the firm.</p>

<p>1. A general demurrer' for want of equity need not more specifically state tbe grounds of demurrer where it appears, from complainants’ bill, , that his right to any relief is doubtful.</p> <p>.2. An administrator oum testamento annexo.de bonis non has no right to bring a suit in chancery against the original executor of his testator ■for-negligence in failing to gather in the assets of said testator.</p>

<p>On demurrers to bill.</p>

<p>A trolley railway, upon a country highway, is not an additional servitude upon the land of the abutting owner who owns to the middle of the road.</p>

<p>1. A deed of all her property was made by a newly-married woman to her former guardian, in trust, to pay the income to the settler during her life, and in case she died childless to pay $5,000 to a lady with whom the settler had lived and still lived.—Held, that although the deed was, by its terms, irrevocable, it is, under the conditions, voidable.</p> <p>2. As the deed was advised by the defendant with the intention of benefiting the complainant, the costs of the suit should be paid out of the trust funds.</p>

<p>On bill for construction of codicil to the will of Edward H. Stokes, deceased.</p>

<p>1. When an executrix, who has so far administered the personal estate of her testator as to convert it into money, dies, and administration de bonis non is granted, such administrator has no right to demand of the executor of the deceased executor that part of the estate converted into money. He is entitled only to such chattels or choses in action as have not been so converted and exist as they were at the death of the first testator.</p> <p>2. Suck administrator is not entitled to call in question the maladministration of his predecessor. That right resides in those who take under the will.</p>

<p>1. Where an administrator who was conducting the business owned by decedent agreed with a bank, which was also a creditor of the estate, that if it would discount a'note for him, he would pay other creditors of the estate who were pressing, and the creditors were so paid; on its transpiring that the estate was insolvent, held, that the bank was entitled to be subrogated to the claims of the paid creditors to the extent to which the administrator himself would have been entitled to recover for moneys advanced for such payments.</p> <p>2. An administrator who advances .money to pay claims against the estate is entitled to reimbursement only as to such claims as were rightfully paid.</p> <p>3. Where a creditor of an estate advanced money to the administrator to pay off certain claims, the creditor was not entitled to reimbursement from the estate as to a portion of the sum advanced, which the administrator used for individual purposes, though the agreement was that it was all to be used for the estate.</p> <p>4. A creditor of an estate advanced money to an administrator under agreement that it should be used in payment of claims against the estate, and the money, was mixed with other funds, from which the administrator paid some individual claims.—Held, that in determining the rights of the creditor as against the estate for the money advanced, it was to be treated as a trust fund, and it would be assumed that the payment of individual claims was. from individual funds.</p> <p>5. Where an administrator of an insolvent estate, who was also an heir, paid claims which were charges on the realty, he being unauthorized to pay such claims, the presumption was that the payment was not as administrator, ■ but as heir. Therefore, creditors who had- loaned him money under. agreement that it was to be employed in paying claims against the estate were not entitled, as against other creditors, to be subrogated to the rights of those whose liens were so discharged, though such right might have existed as against the heirs, the intestate not • being bound personally', to pay such charges.</p> <p>6. Where an administrator of an insolvent estate, who was also one of the heirs, advanced money in paying claims which were charges on the realty, and likewise personal obligations of the intestate, ■ he was only entitled to a pro rata allowance for his payments so far as they were payment of a personal obligation. Therefore, creditors who loaned the administrator the money so advanced, under agreement that it was to be used in paying claims against the estate, were not entitled to be subrogated to the rights of those creditors whose liens had been discharged.</p> <p>7. The bank was not entitled to be subrogated to the rights of creditors whose claims, which were liens on the realty, had been discharged by such payments on the ground that creditors having liens might pay off other liens for the purpose of preserving their securities, since it was a loan on its part to the administrator, and not a payment of other creditors.</p> <p>8. Where premises were insured five years after the owner’s death, and a note for premiums was given by the heirs and endorsed by the administrator, the insurer had no claim against the estate, the title being in the heirs, and it appearing that they had insured on their own account and for the benefit»of a mortgagee.</p> <p>9. Where one having a claim against an estate entered into an agreement with the heirs, one of whom was also administrator', whereby claimant agreed to accept a stipulated consideration in full settlement of all claims “against the estate of J. I. T., his heir's or administrator,” the release was valid as to any claim against the administrator, though he was not an express party in his official capacity.</p> <p>10. Orphans Court act, sections 70 to 94 (Gen. Stwt. pp. 2870, 2377), treats the fund derived from the sale of a decedent’s real and personal property as a blended fund from which debts are to be paid. Section 77 provides that, on order obtained by the personal representative within one year after decedent’s death, the decree shall vest in the purchaser all the title of the intestate. After land was sold in partition proceedings by the heirs more than a year after the intestate’s death, the administrator made application, under rule 155, which allows the chancellor, on application in partition sale, where the personalty is insufficient to pay the debts, to make such order, touching the disposition of the proceeds, as shall be necessary for the ascertainment and payment of the debts.—Held, that there was no distinction between the proceeds from the sale of personalty in such proceedings and the sale of realty, and therefore a waiver of the statute of limitations by the administrator in an action on a claim applied alike to the entire proceeds, and not merely to the proceeds from the personalty.</p> <p>11. Orphans Court act, section 77 (Gen. Stat. p. 2S7S), provides that where land is sold by an order of the orphans court, not obtained within one year after the ancestor’s death, the purchaser takes only such estate as the heirs were seized of at the time of the making of the order. Land was sold in partition proceedings by the heirs more than a year after the ancestor’s death, and the administrator made application that the proceeds be devoted to payment of debts.—Held, that a creditor of an heir who issued attachment after the decree of sale, but, before the sale, attained a priority over creditors of the estate, as the decree transferred the attachment to the proceeds.</p> <p>12. Where the court of chancery assumes jurisdiction of the entire settlement of an estate by reason of a bill filed against the heirs and administrator by a creditor, the assets will be applied as they would be applied in the probate court.</p> <p>13. Gen. Biat. p. 2J¡.0S provides that an administrator, who in good faith pays a just claim not presented under oath, shall be allowed therefor, or if the estate is insolvent, and such creditor was paid in full, the administrator shall be allowed a pro rata allowance. Gen. Btat. p. 2/¡l/f § 250 empowers the orphans court, on application of a creditor any time before distribution, to extend the time for presentation of claims.—Held, that where an estate was thought to be solvent, and orders were made limiting and barring creditors, but afterwards, in partition by the heirs, the administrator made application that the proceeds be subjected to the debts, and a creditor filed a bill against both heirs and administrator, the administrator was entitled to a pro rata allowance for payment of debts, not verified by oath, made before the filing of the bill.</p>

Oil bill, answer and cross-bill, supplemental bill, answers and proofs. The complainant, in the present condition of the pleadings, appears as executrix of the last will of George McCormick, and •as residuary devisee and legatee under that will. She seeks to obtain a decree for the specific performance of a contract made by August Stephany, in his lifetime, for the conveyance of a hotel property in Atlantic City, known as the “Extra Dry.” Mr. Stephany died intestate.

On demurrer to bill. Tliis cause is presented by a demurrer to the complainant's bill. All well-pleaded facts set up in the bill of complaint are therefore admitted to be true. It appears by the bill that the complainants are all of the next of kin and heirs-at-law and ultimate devisees and legatees of Benjamin C. Beideman, deceased, who died on the 29th day of September, 1898, testate, leaving him surviving Ms widow, Ruthanna, and his children, the complainants.

On bill, &c. On motion to dismiss bill. This- is a creditor’s bill, filed by the complainant, in “behalf of himself and such other creditors as shall come in and join in this bill and contribute their share of the costs.” It alleges that the defendant Craven, before he got legal title to a certain lot near Haddonfield, in Camden county, caused a costly house to be erected thereon and then obtained title to be conveyed on December 28th, 1899, to his wife and by her to one…

<p>On bill, &c. On final hearing.</p>

In partition. On bill, answer, cross-bill and, by special stipulation, the' testimony of one witness. The complainant in this suit for partition files her bill as the grantee of Charles Frederick, one of the heirs-at-law of Catherine Frederick, deceased, claiming to be entitled to one equal undivided tenth part of two separate tracts of land, one in Camden and the other in Burlington county.

On bill and answer. This bill is filed by the executors and trustees under the last will of Anna Eliza Eggman. The testatrix died in September, 1883, owning real and personal property in this state. She was a widow, and her heirs-at-law and next of kin were her brothers, Charles II. Ellis and Simeon Ellis, and her sisters, Mary Chambers and Emily Sage.

<p>1. To an information by the attorney-general on the relation of a municipality may be joined a bill by the municipality asking relief appropriate to it.</p> <p>2. An information by the attorney-general on the relation of a municipality charged that a grapt by the riparian commissioners to one of the defendants included land below former high-water mark, which was within the bounds of a public highway, and that the grantee was not the owner of the ripa in front of which said portion of the land lay, but had induced, by false representations as to its ownership or control of the ripa, the commissioners to make the grant. The relief sought was the abrogation of so much of the grant as was included in the highway.—Held, that the municipality which had attempted to assert the public right in the highway by an action of ejectment against the said grantee, and had been met by a defence founded upon the said grant, might join its bill with the attorney-general’s information, and, upon such charges, ask relief tending to prevent the use of such grant in defence to the said action.</p>

<p>1..A bill filed by a stockholder of a corporation, averring that there are accumulated profits of its business not reserved for working capital under the statute, and praying that its directors should meet and declare a dividend out of such accumulated profits, is not demurrable.</p> <p>2. A plea intended to present as a defence the pendency of another suit in a court of equity, need not expressly aver that both suits are for the same subject-matter; it will be sufficient if it states facts from which it clearly appears that they are.</p> <p>3. When such a plea is set down for hearing, its averments must be examined, and if they do not plainly show that the former suit is for the same subject-matter and that the relief sought therein will be as beneficial to the complainant as that he seeks by this bill, the plea must be overruled.</p>

<p>Complainant resists the confirmation of a sale of mortgaged premises by the sheriff under decree of foreclosure, on the ground that he had given instructions to his solicitor, who attended the sale for him, which instructions, if followed, would have resulted in the purchase of the premises for complainant and benefited him.-—Held, (1) that no sufficient evidence appears of any neglect or violation of any instructions given the solicitor; (2) that if instructions were given and not followed, a purchaser at the sale will not be deprived of the benefit of his purchase unless he knew of the instructions, and of their violation, or had information putting him on inquiry, and the price at which he purchased was grossly below the fair market value.</p>

Oil bill for the construction of the last will and testament of Mary T. Martin, deceased, and a codicil thereto, and for direction to complainant, who has been appointed administrator with the will annexed and trustee thereunder. The will of Mary T. Martin was dated April 35th, 1892, and, by the first paragraph thereof, her husband, Archer 1ST. Martin, was appointed sole executor.

Heard on bill, answer and proofs. The object of the bill is to withdraw■ from the jurisdiction of the law court and procure the final determination in this court of a cause of action which the defendant, Watters, claims to have against the complainant, the township of Cranford, by reason of the performance by him for the complainant of divers works, being part and parcel of -a sewer system installed by the complainant within its territorial limits.

In foreclosure. Exceptions to master’s report ascertaining the amount due and fixing priorities between junior encumbrancers.

<p>1. Defendant was conducting business in two places in the state, at one of which his family resided, and he had another business and office in another state, at which he spent considerable time, but only slept there occasionally when business was pressing, and did not give up his domicile in the first state, and while so doing commenced divorce proceedings against his wife in the North Dakota courts. His wife obtained an injunction restraining him from procuring such divorce, which was served on him outside the state, and, a subpoena being returned unserved on account of not found, jurisdiction was obtained by publication, and service was made on him by mail.—Held, that the court had such jurisdiction of the person of defendant as to empower it to enjoin his procuring a divorce.</p> <p>. 2. Where defendant had been enjoined from procuring a divorce, and had notice, no matter how obtained, that the injunction had been issued, he is liable for contempt for violating it to the same extent as if it had actually been served on him in writing.</p> <p>3. Plaintiff, after obtaining an injunction restraining her husband from procuring a divorce, took charge of a business, the stock of which stood in her name, notifying persons of such change by advertisement, but he induced her to return it to him, so that it could be properly managed, at the same time inducing her to sign papers giving him charge of the business. One of these, which she supposed pertained only to the business, directed her attorney to cease all lawsuits against defendant. On receiving a letter the next day from her attorney regarding the matter, •she revoked the letter by telegram. Plaintiff also, at defendant’s dictation, wrote to an attorney in North Dakota, where the divorce action was pending, who had voluntarily written to her advising an appearance, directing him to appear for her, but two days later she revoked the authority, and he did not appear. Defendant promised to drop the divorce proceedings and cease his attentions to a clerk in his office, and then resumed his former relations with his wife, living with her as much as he had previously, for several months, and up to almost the time of pro■curing a divorce.—Held, that defendant by procuring a divorce was guilty of contempt.</p> <p>4. Where an injunction had issued restraining a resident of New .Jersey from procuring a divorce in North Dakota, which he had violated by procuring tbe divorce, plaintiff, by accepting the weekly alimony ordered by the decree for several months, and endorsing the checks therefor drawn by defendant, on which was written, “In accordance with decree of divorce of North Dakota,” during which time he was without the state, and by delaying for several months to prosecute for the contempt, did not ratify the divorce, and estop herself from the right to prosecute, since the money received was no more than she was entitled to as the wife of defendant, and he, having married again before any of the payments were made, had not changed his position on the strength of her conduct.</p> <p>5. Where defendant, in New Jersey, was enjoined from procuring a divorce in North Dakota, but in defiance of the injunction procured the divorce and married again, he will be compelled, in contempt proceedings, to pay a fine to the state, and to take proper measures to undo the contemptuous act by having the decree opened and set aside.</p>

On bill for paxtition. Final heaxing on pleadings and pxoofs. This is a bill fox paxtition, among the ehildxen and heixs-atlaw of Joseph Yan Yalen and Eliza, his wife, of xeal estate of which the fathex, Joseph, died seized. The complainant is one of those ehildxen.

On motion to strike out answer and cross-bill. This is an ordinary bill to foreclose a mortgage in the ordinary form to secure the payment of money. To this bill the defendant has interposed a combined answer and cross-bill, and motion is made to strike out the whole pleading because it presents no defence to the bill.

On demurrer to bill. The bill is filed by complainant, who alleges himself to be the owner of one hundred out of seventy-four thousand shares of the capital stock of defendant company, and seeks relief in this court against what he alleges to he the improper conduct of the company in the management of its business, by which his interests as a shareholder have been, or will be, prejudiced.

<p>In foreclosure. Petition to set aside sale of mortgaged premises and to open decree.</p>

<p>1. Where creditors obtain judgments and make levies, and then bring suits to set aside fraudulent conveyances, which are void as to them all, their priorities in the property conveyed are in the order of their levies, without regard 'to the order in which they filed bills to set aside the conveyances; the assets being legal assets.</p> <p>2. The priorities of creditors .who obtain judgments on which executions are issued and levies made on land, conveyances of which they then sue to set aside as fraudulent, are not affected by the fact that in certain cases the executions were returned, with the levies annexed, to the effect that they were unsatisfied.</p> <p>3. In order to sustain a bill to set aside as fraudulent a conveyance of land by a debtor made before judgment recovered, and which has been levied upon by execution upon such judgment, it is not necessary to have the execution returned unsatisfied.</p> <p>4. The retention of a writ of execution, after its return day, by the sheriff is not necessary in order to enable him to make sale by virtue of it after the return day, and such retention is improper and unwarranted.</p>

On bearing on order to show cause why injunction should not issue. Heard on bill and affidavits, and answer and affidavits.

On final hearing on pleadings and proofs taken before a master. The object of the bill is to procure a decree of the court annulling a voluntary settlement made by the complainant, Emma Collier Grant, upon her daughter, the defendant Mrs. Anne Grant Baird and her children, in the year 1890.

<p>The receiver of a partnership cannot file a bill to cancel a deed made by a member of the firm conveying his individual property to defraud the firm creditors.</p>

<p>Where a grantor delivers a deed to a stranger as agent of the grantee, to hold till the grantor’s death, with no power of control reserved by the grantor, there is a valid delivery, though the grantee had not empowered the stranger to act for him in holding the deed.</p>

This bill is filed to foreclose a mortgage given to Jane Y. Sheppard by Louis H. Schenek on March 8th, 1892. The question in the case is in respect to the relative priority of this mortgage and a judgment recovered against Louis H. Schenck on July 20th, 1892.

The complainant is the widow of William M. Valentine, who died November 2d, 1897, while on board the steamship “S. Oteri,” near Bocos Del Térro, in Central America. He died the owner of about five thousand dollars of personal property, leaving a will, in which he gave all his property to his brothers and sisters, and named his sister Margaret his executrix. She offered the will for probate, and it was proven in the county of Camden, in this state.

<p>On exception to account of executor.</p>

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

<p>Heard on bill, answers and cross-bills, replications and proofs. '</p>

<p>1. Pending suit against a debtor, she conveyed real estate by quit claim to one who held a mortgage on the property, no consideration passing. The deed provided that the mortgage should not merge in the title conveyed, and that the property might be redeemed on payment of the amount of the mortgage. The property was rented to the grantor at a rental about equal to the interest on the mortgage, the grantor assuming the repairs and taxes, and remaining in possession until her death, and it appeared that the property was worth more than the mortgage.—Held, that the conveyance was in fraud of existing creditors.</p> <p>2. Where one holding mortgages based on loans made to take up prior mortgages on the property thereafter receives a conveyance of the property, which is held invalid, as in fraud of a creditor subsequently acquiring a judgment, the judgment is subject to the liens of the mortgages for the amount due thereon.</p> <p>3. Where, fifteen years after obtaining a judgment, the creditor files a bill to set aside a conveyance of land made pending the suit in which the judgment was obtained, the delay is no bar to the right to set the conveyance aside; the bill being one for equitable aid to enforce a legal right, which is not barred.</p> <p>4. Where, pending suit, the defendant conveyed property to one having a valid mortgage thereon, and fifteen years after judgment the plaintiff sought to set aside the conveyance and mortgage, the grantee being entitled, under his mortgage, to set off interest, taxes, &c., against the rents received and the delay rendering such an accounting difficult, if not impossible, an accounting could only be had from the time the bill was filed.</p>

<p>On bill for injunction. Heard on bill, answer, amended answer, replication and proofs.</p>

<p>1. Finding in an action on a fire policy that it was intended to be issued and delivered in its present form, when the parol condition that concurrent insurance be obtained was complied with, precludes a contention, in a suit to enjoin the judgment, that the agreement was that the condition be written in the policy.</p> <p>2. Facts occurring and being within complainant’s knowledge before the filing of the original bill, should be introduced by application to amend the bill, and, being introduced by supplemental bill, render it demurrable so far as based thereon.</p> <p>3. In equity, as well as at law, cancellation by the insurer, of its own accord, of a fire policy, and retention of the pro rata proportion of the premium as on a valid policy, as allowed by the policy, is an affirmance of the validity of the policy.</p> <p>4. No different effect than an affirmance of the validity of a fire policy is to be given to cancellation thereof, after a fire, by the insurer, of its own accord, and retention of the pro rata proportion of the premium, as on a valid policy, by the declaration of the insurer that the cancellation was made expressly subject to the final settlement of the claim for loss, and that in retaining the earned premium and returning the balance it did not intend to recognize the policy as binding for any greater proportion of the loss than its pro rata share, and that it protested it was not liable for any greater amount, and was not to be understood as assuming any greater liability than the pro rata amount offered by it, and that this was understood and assented to by insured.</p>

<p>A mother applied lor a writ of habeas corpus to recover the custody of her daughter, sixteen years old, from the House of the Good Shepherd, to which she had agreed to send her for a year. The year having expired, and the daughter having expressed a desire to remain where she was till she had got more strength to resist temptation, and the mother only proposing to put her out to service in nearly the same neighborhood in which she fell into immoral ways—Held, that, whether the proceeding were regarded as a strict habeas - corpus proceeding or a chancery one, in which the welfare of the girl was the controlling issue, all the court would do would be to free her from restraint, if any existed.</p>

<p>Revision of 1896 (P. L. of 1896 p. 893 § 1/9) provides that any corporation formed under the act may purchase property and, issue stock to the amount of the value of the property, and, in the absence of actual fraud, the judgment of the directors as to the value of the property purchased shall be conclusive. A corporation capitalized for $65,000,000 issued stock to the amount of $54,800,000 which was fully paid. It had earned eight per cent, on the par value of the stock, and proposed to increase its capital to $100,000,000 and to issue $45,200,000 of stock for property of a competing company, the owners of which were to put in $12,000,000' in cash. There was evidence that the property was not worth over $10,000,000, but when the arrangement became known, defendants’ common stock rose from forty-one to sixty-three, and the preferred from ninety-one to ninety-nine and one-half. The business of the company sought to be amalgamated was prosperous, and the company possessed a world-wide and valuable reputation.—Held, that the consolidation would not be enjoined at the suit of a stockholder, since the evidence did not show that there was conscious overvaluation of the property by the directors of the smelting' company.</p>

<p>At the time of testator’s death, securities belonging to him, and which were given by will to his wife, were in a compartment of a trust company’s vault, the compartment having been taken in the name of testator and the wife; and she refused to give the executor the key, and the trust company refused to surrender the securities.—Held, that a bill by the administrator for discovery and relief was not demurrable on the ground that complainant had an adequate remedy at law.</p>

<p>1. On an issue whether funds used by a life tenant and executrix in the purchase of land on January 1st, 1868, were in part funds of the estate, so as to create a charge on the land in favor of the remaindermen, it appeared that her deceased husband left several thousand dollars in various savings banks, and that on January 3d, 1866, she drew from a bank $2,080; on January 6th, from a trust account, $518.75; and from an individual account a like -sum; that on the 10th she deposited $2,000 in favor of her children, and in another bank $650 for herself; on January 15th she drew from a still different bank $1,600, and about the same time put on record a mortgage for $2,870. On July 18th, 1867, she drew from her decedent’s account $530.45, and a like sum from an individual account, and the same day deposited $1,310 in her individual account. The will authorized the executrix to use the principal of the estate to support the children. Her accounts as executrix were not shown, nor was there any evidence as to her private means.—Held, that the evidence was insufficient to show an appropriation of trust funds by the executrix.</p> <p>2. Where an executrix and life tenant uses both her own money and trust money in the purchase of land, the remaindermen do not have an equitable estate proportionate to the amount of the trust funds used, but merely a charge on the land, bearing interest from the life tenant’s death.</p>

<p>1. Where the description of land contracted to be sold in an option is sufficient to identify the land with reasonable certainty, the option is sufficient to sustain a bill for specific performance.</p> <p>2. Where the owner of .land gave an option on August 24th, 1899, agreeing to convey the same on acceptance of the option at any time within one year, provided written notice of the acceptance was given at least thirty days prior to the expiration of the year, and -notice of acceptance was given on July 23d, 1900, the owner thereby became absolutely bound to convey to the purchaser.</p> <p>3. The owner of land heavily encumbered gave an option to convey it to complainant on her acceptance at any time within one year, agreeing to deliver a deed with full covenants of warranty, but, believing he would be unable to discharge the encumbrances, he executed another option to defendant on a larger tract, including the land first sold, which defendant accepted, and received a conveyance, with notice of plaintiff’s option. At the time of the conveyance, the purchase-money was distributed among the encumbrancers, and releases executed by them, all of which were in terms made to the original owner of the land, defendant refusing to pay the purchase-price, except as it might be applied in his presence to secure the releases.—.HeM, that such payment and application of the purchase-price discharged the encumbrances and merged the same in the title to the property conveyed by the owner to defendant, and hence he was not entitled to claim subrogation to the original rights of the encumbrancers on being compelled to specifically perform the option given by the owner to complainant.</p>

<p>On bill, answer, cross-bill and answers thereto, and proofs.</p>

<p>1. A divorce cannot be granted where any element in the proofs necessary to sustain the decree is wholly dependent upon the uncorroborated testimony of the complainant.</p> <p>2. Quwre. Whether mere abstention by a husband from the exercise of his marital rights is willful, continued and obstinate desertion, within the meaning of the New Jersey statute, where he continues to live in the same house with the wife, though occupying a separate sleeping-room, and pays, though in parsimonious fashion, for the support of the wife.</p>

<p>1. Where the whole frame of a bill of complaint is based upon charges of fraud, and defendants are brought in solely upon such charges, and the proofs fail to show any fraud, the bill must be dismissed, even if there be some evidence of an injury because of mistake.</p> <p>2. Where damages and not restoration are sued for, because of an alleged contract obtained by an unauthorized misrepresentation, the action must be brought at law.</p>

<p>On amended bill, motion to dismiss, &c.</p>

<p>1. No personal judgment or decree will be made in a suit under the act of March 30th, 1892 (G-en. Stat. p. 2078), to secure payment to laborers, &c., engaged in the performance of work, &c., upon any public improvement in municipalities of this state.</p> <p>2. The procedure under that statute is limited solely to ascertaining the rights of the parties in the lien thereby created on the contract price, and ordering payment therefrom accordingly, and is in the nature of a proceeding in rem.</p> <p>3. The court of chancery has no jurisdiction of a purely legal claim for the payment of unliquidated damages.</p> <p>4. An answer and cross-bill filed in a suit in this court under the above-named statute, setting up such a claim for unliquidated damages, will be stricken out as seeking to introduce matter not within the jurisdiction of this court.</p>

On bill, answers and proofs. The complainant files his bill praying that a deed made by one Matilda R. C. Keller to Henderson Synamon, conveying lands in Atlantic City, may be declared, to be void, and .that Mrs. Keller may be decreed specifically to perform an alleged agreement, set out in the bill, to convey to the complainant the premises described in the deed.

On- bill; answer' and stipulation as to facts. - This bill is filed by Charles Myers to compel specific performance of an agreement, made between the executors and devisees of Emanuel Metzger and one Mrs. Ellen Wright, a .copy of which is annexed to the bill of complaint, and which is in these words and figures: “Martha E. Metzger, to Ellen E. Wright.

On bill, answer and proofs. This bill is filed by the complainant, who is a creditor of Joseph L. Casperson, deceased, for the benefit of himself and all other creditors as shall aid in presenting the suit against Robert Casperson, the son and next of kin of Joseph L. Casperson, and Hannah C. Casperson and William G-. Casperson, executors, &c., of William R. Casperson, defendants.

On bill, answer and proofs. The complainants are the owners of, and operators of, a brick-works and yard, with a frontage of two thousand and sizty-six feet on the north side of Ferry avenue, in the city of Oamden, their title running to the middle of the street. The defendants operate a trolley road in that avenue.

<p>1. Under Chancery act, section 152, authorizing an immediate sale in a foreclosure suit of premises likely to deteriorate in value pending the suit, the depreciation in value of a farm attending the removal of crops therefrom, is not ground for an order for immediate sale.</p> <p>2. That property mortgaged has decreased in commercial value, incident to a general decrease of farm values, and that the mortgagor did not pay the interest, which was due to failure, in the crops, is not ground for the appointment of a receiver in proceedings to foreclose.</p>

On bill, answer and proofs. The defendant Newton Elmer, for several years before the month of September, 1897, was, with one Albertson, indebted on their joint note to the complainant, Benjamin Hancock, for $875, which, by partial payments, has been reduced to $700. In 1896' Albertson’s wife conveyed a lot of land to Newton to secure him against the Hancock note.

On bill, answers and proofs. On April 14th, 1899, the complainant recovered a judgment, before a justice of the peace of Gloucester county, for $183.15, damages and costs, against the defendant Philip Schlag. This judgment was docketed in Gloucester county common pleas on the 18th day of April, 1899. In the following May Schlag appealed from this judgment to the court of common pleas.

' On appeal from a decree of the Essex county orphans court, affirming the decree of the surrogate admitting to probate the will of Mary Ann Caldwell.

An account was filed in the surrogate’s office by two executors and trustees, and therein one of them (Bollinger) acknowledged that he had received and managed the whole of the trust fund and rendered a specific account of receipts and expenditures, and the other of them (King) disclaimed and denied the receipt by him of any of the trust fund. Exceptions thereto were filed by a cestui que trust.

<p>On appeal from a decree of the Warren county orphans court.</p>

<p>1. Decrees of an orphans court allowing trustees’ accounts which exhibit payments by them out of the trust fund, if of the nature of final accounts, can only be opened by that court on satisfactory proof of fraud or mistake.</p> <p>2. Such decrees, if not final in their character, are to be taken as prima faoie correct, and are not to be opened unless error in the proceedings clearly appears.</p> <p>3. Where the judicial action of the orphans court in settling and allowing the accounts of trustees involves the question of their duty under a will creating the trust, that court may construe the will on the subject of such duty.</p> <p>4. When an orphans court has made its construction of a will in such respect the basis of a decree allowing the trustees’ account, the decree may not be opened by that court, because subsequent judges have a variant view as to the true construction of the will.</p> <p>5. A will created a trust, and directed the trustees to collect certain mine rents and “after deducting for taxes, repairs, insurance and other necessary expenses, pay over the residue to my said wife, Clarissa, for her comfortable maintenance, and that of my minor children, if necessary for that purpose, and the balance of said residue to my said three sons, share and share alike,” &c.—Meld, that the will contemplated and provided for payments to testator’s sons from time to time out of the “balance of the residue” of the mine rents received, and did not impose on the trastees any duty to retain and accumulate the mine rents to provide for the widow’s maintenance, in the contingency that the mine rents would cease to be collectible.</p>

<p>On appeal from a decree of the Hunterdon county orphans court.</p>

<p>On appeal .from the Burlington orphans court.</p>

<p>On appeal from an order of the orphans court of Passaic county.</p>

<p>The statute provides that to prevent an administrator’s sale of land, the heirs may give bonds, to be approved by the orphans court, for payment to the administrator of whatever money may be needed to discharge the remaining debts of the deceased. The personal estate of decedent amounted to $260. The claims filed were $127.31 and over $1,100 in notes, made by deceased directly to his widow, who was the administratrix. On application by the administratrix for leave to sell land, the heirs offered to give bond to pay all the debts, except the notes. Held, that an order for sale was proper, since the orphans court could not determine the validity of claims, on application for leave to sell land, and the offer of the heirs was not in conformity with the statute.</p>

<p>1. Where a testator provided by his will that certain advances- evidenced by separate papers should be deducted from each son’s share of the estate, an advancement of $14,000 shown by such a paper was properly charged against the share of a son, who had admittedly received $15,000 from the father without repayment.</p> <p>2. Where a testator provided that the amounts to be charged as advancements to his sons should be evidenced by papers made subsequent to the execution of his will, there was no attempt to add to, change or complete the provisions of the will by papers not executed with the formalities required by the statute of wills, since such papers were not testamentary in their character.</p> <p>3. Where a son, having received advances to the amount of $15,000, claimed an equitable deduction therefrom by reason of his father’s promise to pay him certain commissions, which promise was indefinite as to the manner of its performance, a provision in the father’s will treating the $15,000 as money advanced and chargeable to the portion of the son, was binding on the son.</p>

<p>The New York Yearly Meeting of Friends is the general .governing body of the Society of Friends, and has primary control over the missionary purposes and general benefactions of such minor bodies as act by its authority, and as such the society comes within the exemption from inheritance tax provided by P. L. of 1898 p. 106, in favor of bible or tract societies, religious organizations, boards of the church or organizations thereof, “not confined in their operations and benefactions to local or state purposes, but the general good of the people interested therein, of the United States or of foreign lands, as the board of home and foreign niissions of various church denominations.”</p>

<p>On separate appeals by Esther G. Selby and Robert P. Lister.</p>

<p>On motion to dismiss appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in IB Dick. Gh. Rep. 10k-</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion in Newark City National Bank v. Crane, reported in 15 Dick. Ch. Rep. 121, controls this case. See, also, Crane v. Bolles, 1/. Dick. Ch. Rep. S7S.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 11¡. Diclc. Gh. Rep. 321.</p>

<p>On appeal from au order advised by Vice-Chancellor Pitney, whose opinion is reported in II DicTc. Ch. Rep. 116.</p>

Holt Apgar, of counsel with the petitioner, and Robert H. McCarter, of counsel with the defendant, and the arguments of counsel having been heard, it is, on this 14th day of November, 1899, ordered that the said Alexander Hollander & Company do forthwith bring within this state all and every the books of the said corporation, whether in the form of bound volumes or single writings, as well as day-books, journals, cash-books, check-books, bank-books, order-books,…

<p>1. Annulment of a contract induced by fraudulent misrepresentation may be decreed in equity, but for recovery of damages sustained through such misrepresentation, the exclusive remedy in this state lies with the law courts. The case of Krueger v. Armitage, IS Dick. Gh. Rep. 357, approved.</p> <p>2. A complainant appealing from a decree in chancery is not aggrieved by a failure or refusal to grant relief upon matters disclosed in evidence that are not within the scope of the bill.</p> <p>3. If a mortgage trustee, without proper certificate, authenticate and issue bonds that by the terms of the trust are issuable only on a certificate to the trustee by the mortgagor that their amount has been expended on the mortgaged premises, when, in fact, such amount has not been so expended, a court of equity should, decree that the trustee put the holder of such bonds in as good a position as if a certificate proper in form and true in fact had been given.</p> <p>4. Answering fully, on the merits, a bill in chancery submits the defendant to the jurisdiction of the court, notwithstanding any objection to jurisdiction over the defendant reserved in the answer.</p>

<p>1. A proxy_andjpwer_of,attpriiey made by a stockholder in a eorporaticn, giving vcting powers and rights to deal with the stock in various ways, and to sell and exchange it, and conferring an interest, and, by its terms, irrevocable for a period less than three_years, will not be revoked, upon a EiirmecThy the maker for that purpose, unless it appears that the purposes are illegal, or in violation of some statute, or against public policy.</p> <p>2. What are known as pooling agreementsjje^ not: necessarily, illegal, but each case will depend upon tEVoEJects t(f be attained.</p>

This is an application to settle counsel fees and fix the commission of the executor. On the hearing the court disposed of the matter of counsel fees and fixed the sum of $500 as a reasonable compensation for the counsel of the executor, and allowed to the counsel of the heirs on this accounting the sum of $150 each. The estate in this case, according to the account, amounted to $1,197,501.57 of personal property.

<p>On appeal from a decree advised by Vice-Chancellor Grey, whose opinion is reported in lk Diclc. Gh. Rep. 527.</p>

<p>On appeal from a decree advised by Vice-Chancellor Emery, whose opinion is reported in Uf. Dick. Oh. Rep. 8.</p>

<p>On appeal from a decree advised by Vice-Chancellor Emery, whose opinion is reported in 12 Dick. Oh. Rep. 160.</p>

<p>On appeal from a decree advised by Vice-Chancellor Reed, whose opinion is reported in Ik- Diclc. Ch. Rep. 32.</p>

<p>On appeal from a decree advised by Vice-Chancellor Stevens, whose opinion is reported in 15 Dick. Gh. Rep. 215.</p>