Volume 62 — New Jersey Equity Reports

Argued at February Term, 1901, and briefs_ afterward submitted, the last on May 16th, 1901. This is a bill to quiet title to lands. Complainants are first cousins of one James D. Smith. They .are in possession of the lands in question, and claim them as the heirs-at-law of the said James D. Smith, who died in possession thereof, seized, as they claim, of a descendible title therein.

<p>Argued orally September 10th, 1900, and on briefs submitted under an agreement of parties May 15th, 1901.</p>

<p>An owner of land, part of which adjoined the Delaware river and was below high tide, but embanked against tides with other lands, under the provisions of the Meadow act of November 29th, 1788, and its amend-, ments and supplements (Gen. Stat. p. 8088), devised said lands to trustees for the life of his son Charles, and, upon his death, to Charles’ children. It was held in this court that the trustees under the said will took an estate for the life of Charles, and that Charles’ children took a vested interest in the remainder. During the life of Charles, the banks of the meadow were several times broken, and the meadow company repaired the same and imposed on the meadow so devised an assessment for the cost of such reparation. The trustees advanced money to pay the same, and before their expenditures were repaid, the life cesPui que trust died.—Meld, that expenditures for such reparation by trustees for the life of another, might be reimbursed out of any income coming to the cestui que trust for whose life they held title, but were not chargeable upon his children who had a vested remainder in fee subject to his life estate.</p>

<p>1. When a bill in equity for the annulment of a marriage for a cause not within tlje Divorce act has been taken pro confesso in the absence of any special rule on the subject, the proper practice is to take an order directing complainant to produce proof to sustain the allegations of the bill and to set down the cause for hearing.</p> <p>2. To annul a marriage for a fraudulent representation inducing the contract, it must be shown that the fraud affected.an essential of the marital relation.</p> <p>3. An explicit statement by a man about to be married that he was not afflicted by the loathsome disease called syphilis, made when it was his duty to state the truth, and knowingly false, is such a fraudulent representation as affects an essential of the marital relation.</p> <p>4. A decree in such a case should not be made upon the uncorroborated evidence of the complainant.</p>

<p>On petition for divorce. Final hearing on petition, answer and testimony taken before an examiner.</p>

On motion to pay out moneys. In this case the Central Railroad Company of New Jersey took proceedings to acquire title to certain lands belonging to Mrs. Sleeper and her husband, with the result that after an award of commissioners an appeal was taken and the jury found the value of the lands, with damages, to be $1,850. . The railroad company did not make any persons parties to its proceedings except Mr. and Mrs. Sleeper.

<p>The power to inquire into and adjudicate upon the validity of an election of officers by both municipal and private corporations is, by the constitution, vested solely in the supreme court of this state, and the legislature has no power to vest any part of that judicial jurisdiction in any other tribunal.</p>

Final hearing on bill, combined' answer and cross-bill' and replication and answer thereto. The object of this suit, on complainant’s part, is to enforce a finding in the nature of an award by appraisers ascertaining the damage by fire to certain machinery, the property of the defendant. A statement of the bill, so far as it is necessary at present to be set forth, will be found in 11 Diclc. Oh. Rep. 518, 89 Atl. Rep.

<p>Where a railroad company contracts with a turnpike company to construct and maintain a bridge for the use of the latter over the railroad right of way, and there is nothing to show, that the parties contemplate other than a bridge for ordinary turnpike purposes, and such a bridge is built, the expense of reconstructing it to withstand the strain caused by an electric railway afterwards built by the turnpike company must be borne by the latter.</p>

On petition of George H. Longbottom to set aside order confirming sale, &c. Heard on petition and affidavits, and answers and affidavits. Tbis is an application by a stockholder of a corporation to set aside an order of the court confirming a written agreement for sale of the plant and other property of the corporation made between the receivers of the corporation and Smith & Halloran, as purchasers, for the sum of $602,000, to be paid or secured as provided by the contract.

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

<p>1. “Bequest to the children of my sister Diademma Doughty, share and share alike.” One child died before the testator, leaving two children.— Held, that the gift was to a class, and went to those members who survived the testator.</p> <p>2. The purpose of section 34 of the act concerning wills is to prevent a l'apse. There was no lapse by reason of the death of a child of the sister before the death of the testator, for the gift, by legal inference, was to those children only who survived the testator.</p>

<p>Upon the facts shown in this case—Held, that the easement deed made to complainant of the rights in question was not an escrow, but was absolutely delivered, and defendant was estopped from denying its efficiency.</p>

This bill is filed to enjoin the defendant from manufacturing '“Castoria” and selling it wrapped in bottles labeled so similar do those of the complainant’s as to injure the complainant and ■deceive the public.

<p>1. A divorce will not be granted on the uncorroborated confessions of adultery by the defendant, though such confessions are non-collusive.</p> <p>2. The statements of the alleged paramour are not evidence.</p>

<p>A will provided that the testator’s estate should be divided among her seven children equally, with the exception of one, whose share should be reduced to a certain amount, and the amount of the reduction divided equally among the other children. It was provided that the children could agree on a division of the property, but if they were unable to agree, the executors should sell the realty in one year from the testator’s death, and divide the proceeds and the personalty as directed.—Held, that two of testator’s children could not compel a partition of the realty, prior to the time when the power to sell would become operative, against the dissent of the remaining five children.</p>

<p>1. Upon the facts stated—Held, the wife’s absence from petitioner is not of itself a desertion entitling him to divorce.</p> <p>2. Where a divorce is sought for desertion arising from compelled absence of the petitioner for extreme cruelty of respondent, the facts should be so charged in the petition.</p>

On bill for an injunction. The complainant and the defendant owned lots in Atlantic City, the title to which came to them from common grantors.

On bill for partition. In 1874 there was a tract of land in Atlantic City, Atlantic county, in this state, consisting of ninety-five acres, the title to which had been in Ryan Adams and Joseph D. Showell as tenants in common.

The complainant filed a bill in this cause to foreclose a mortgage of $2,000. The question now litigated involves the relative priorities of this mortgage and a mechanic’s lien; filed by Prank J. Souder against the mortgaged premises. The mortgage was executed on February 15th, 1900, and recorded March 14th, 1900. It was made by John J. Rochford to Allan D. Endicott.

<p>On petition and cross-petition for divorce.</p>

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

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

<p>The effect of a declaration of trust in the case stated defined, and the meaning of the word “assigns” in that instrument construed.</p>

<p>On bill and cross-bill, &c.</p>

<p>An unincorporated charitable society is capable of taking a devise of real estate.</p>

<p>1. Preliminary injunction denied in case stated.</p> <p>2. Qucere. What constitutes a “bay window” to a dwelling?</p>

On bill and plea and issue joined thereon. The bill is filed by a minority of stockholders of the Haddonfield and Camden Turnpike Company, as complainants, against' that company and the West Jersey Traction Company and the Camden and Suburban Eailway Company, as defendants.

On bill to quiet title. Answers and agreed statement of facts. The complainant is the owner and possessor of a farm in Lower Penn’s Neck, in Salem county, to an undivided third part of tvhich the defendants claim title. She files her bill under the act to compel the determination of claims to real estate in certain eases, and to quiet title to the same. Gen. 8tat. p. 3486.

<p>1. Where a party having an equitable interest in lands assents to and aids in the disposition of the legal title thereto, she is estopped, after the purchasers from the holders of the legal title have by her inducement changed their position, from asserting her equitable claims upon the legal title.</p> <p>2. An attorney is bound to deal with his client with frankness, and to render her an itemized account of his receipts and disbursements of her moneys paid to him.</p>

<p>On bill for partition. On motion to quash report of commissioners and proofs taken thereon.</p>

On bill, answer, exceptions to master’s report and testimony. The bill in this ease is filed by the complainant against George Tomkins, alleging that, being in feeble health, she had placed herself under the defendant’s treatment as a Christian Science healer.

<p>On bill to foreclose, answers and statement of admitted facts.</p>

<p>1. Where a general scheme of land improvement is announced to invited purchasers of lots, and part of the promulgated scheme is the declaration that a named portion of the lands within the general plan shall be devoted to special purposes, which are held out to be advantageous to all the lots to be sold, an implied covenant is thereby entered into by the owner with the lot purchasers that the named portion shall be devoted to the announced uses.</p> <p>2. Each purchaser of a lot and his grantees may enforce this covenant against the grantor or his grantees who purchased with notice of this implied covenant.</p> <p>3. He may also enforce it against the donee of the covenantor, who accepts as a gift a conveyance of part of the lands charged by the covenant. Such a-grantee simply stands in the place of the donor. All the notice which the donor had at the date of the gift is imputed to his grantee who-pays nothing for his deed.</p>

On bill for injunction and affidavits, answer and affidavits. •The complainant is a corporation of this state, incorporated under the General Corporation act, approved April 7th, 1875, and the supplements thereto.

<p>On appeal from determination of receiver against a claim of preference as a creditor.</p>

On bill, answer'and proofs. The complainant is the widow of Charles J. Sehwalber, deceased. 'She files her bill of complaint, as his administratrix, against the defendant Eegina Ehman, alleging that the latter was the paramour of the decedent in his lifetime and at the time of his death; that Sehwalber advanced the purchase-money of a house at Eiverside, New Jersey, for one John Brand, and because of the undue influence of Eegina, and to conceal his property from his wife,…

On bill, answer and proofs. The complainants in this bill are the Ocean Oity Association, a corporation of this state, and Frank B. Schneider. The Ocean City Association was the owner of a considerable tract of beach land, now Ocean City, which it conveyed to various persons, in accordance with a plan of lots on hie in Cape May county clerk’s office.

On bill for construction of a will and answer. This bill of complaint is filed by the executors of the will of Thomas B. Watford, asking an interpretation' of his will and instructions from this court- to the executors in the performance •of their duties. The bill exhibits the following circumstances: The testator died in October, 1899, apparently without widow or children, his nearest relatives being his nephews.

<p>The contest in this case relates to the will of Catherine M. Brearley, the pertinent provisions of which are the following:</p> <p>“Fifth. I will and direct my executrix to sell and convey the stores on the corner of State and Broad streets and on Broad street adjoining, in the city of Trenton, on or before the expiration of the lease thereon, and divide the proceeds equally between my said daughter and granddaughter.</p> <p>“Sixth. I will and direct that my Chambersburg farm, now in the city of Trenton, lying on the southwesterly side of the Crosswicks turnpike road, and my other lands, meadows and fiats in the township of Hamilton, in the county of Mercer and State of New Jersey, and my farm called the Dutch. Neck Farm, in said county of Mercer, be sold and conveyed by my executrix within five years from my decease and the proceeds equally divided between my said daughter and granddaughter.</p> <p>“Seventh. All the rest of my estate of every kind and wheresoever situate, I will and direct to be sold by my executrix and turned into money and the proceeds equally divided between my said daughter and granddaughter.</p> <p>“Eighth. All property and money herein devised and bequeathed to my granddaughter, Florence B. Whitehead, and her shares in any money or stocks or property herein given to her, are to be placed and held in trust by the Real Estate, Safe Deposit, Trust and Investment Company, Trenton, New Jersey,.to hold and invest the same and collect the rents, issues and profits thereof, and to apply the net income therefrom as follows: the one-third part of said income to my daughter-in-law, Annie G. Brearley, widow of my deceased son, Anderson L. Brearley, during her lifetime, and the other two-thirds parts thereof to pay to my said granddaughter, Florence B. Whitehead, during her life, and after the death of said Annie G. Brearley to pay the whole of said income to my said granddaughter during her life, and at the decease of my said granddaughter the whole of said property and money so held in trust by said company to go and become the property of the children of said Florence B. Whitehead in equal shares, and if they or either of them be under age then the said company to hold the share of said infant during minority—the legal representative of any deceased child to have the share of his or her parent.</p> <p>“Tenth. Until the disposition of my estate as hereinabove provided and directed by this will, I will and direct that my executrix shall receive and collect the rents and profits thereof and divide the same equally between my said daughter and granddaughter.”</p> <p>By a subsequent codicil the trustee named in the eighth item was discharged and other trustees were substituted.</p> <p>After the death of testatrix the trustees so substituted were discharged, by a decree of the orphans court of Mercer county, in which the will and codicil were proved, and Robert V. Whitehead was substituted as sole trustee, under the eighth clause- of the will.</p>

<p>1. A bill to enforce payment of a specified sum out of money claimed to be due from defendant to a person who had contracted with him to erect certain buildings, the complainant’s right to which sum was charged to have arisen from an fequitable assignment thereof by an order, drawn by the contractor, upon defendant requiring him to pay complainant that sum from money due or to become due to the contractor in accordance with the terms of the contract and duly presented to the defendant, must show that the contractor had so performed his contract that, but for the order, he could recover the sum from the defendant.</p> <p>2. If the bill is defective in that respect, the defect is sufficiently pointed out by a general demurrer for want of equity.</p> <p>3. Quaire. Whether such an order will operate as an equitable assignment of money due to the contractor not upon the contract, but by reason of the actual acceptance of the buildings by defendant; but, if so, the bill must charge that money had thus become due to the contractor which he could recover in assumpsit or on a quantum meruit.</p>

<p>1. Upon the petition of a wife for a divorce on the ground of her husband’s desertion of her in a foreign country, where the marriage took place and a matrimonial domicile had been maintained up to the time of the alleged desertion (the husband not having been served with process nor appearing), if the proofs show that petitioner’s residence in this state was acquired without the animus manendi except for such period as would permit her to claim a right to file a petition under our Divorce law, or if the proofs leave the question of the bona fid.es of the residence in this respect in doubt, this court will not assume jurisdiction to dissolve the matrimonial status.</p> <p>2. Proof that the husband left the house in which he and his wife lived, without doing'any act or uttering any word indicative of an intent not to return, and that the wife has never since seen or heard from him, is not sufficient to establish an intent to desert and to continue his desertion, in the absence of proof from which it may be found or inferred that he remained alive and free and able to return if he had desired to do so. Such absence is not thereby sufficiently shown to be a willful and obstinate desertion for which a divorce may be decreed.</p>

<p>1. To a bill, one purpose of which was a partition of lands to which-complainants claimed title under a will set out in the bill, a defendant filed a demurrer on the ground that, by the true construction of the will,, complainants had no title in the lands.—Held, that there was thus disclosed a dispute in respect to title which should be settled at law before-this court should proceed to a partition. Quaire. Whether, upon such a pleading, the bill should be retained until the title has been settleu at law.</p> <p>2. Where such a bill also seeks discovery and relief upon charges that a person who, by complainants’ construction of the will in question, was a tenant in common, and who, at her death, by her .will, had devised her interest so that complainants were entitled to a share thereof, and upon further charges that the demurring defendant had such last-mentioned will in her possession or under her control and refused to produce and prove it, or to permit complainants to do so —Held, that upon a demurrer to the bill in respect to such relief, this court was bound to construe the will in question and determine whether complainants had a right to the discovery prayed.</p>

Oil petition of Francis J. Swayze, receiver, for injunction against the Chesapeake and Ohio Railway Company. Held: by virtue of the attachment of December 31st, 1898, in favor of the Knickerbocker Steam Towage Company. The order directed that the transfer was to be without prejudice to the rights of the towage company upon the bond given by the receivers on January 6th.

On demurrer to bill. The object of the bill is to procure an accounting between the complainant and the defendant of divers pecuniary transactions that have taken place between them, in which divers obligations have been given by the complainant to the defendant, and vice versa, and to procure a sale by the defendant of certain real estate situate in Danbury, Connecticut, to which he holds the absolute tiñe, with a declaration that the complainant is interested therein to…

<p>1. When two railways cross each other at grade and being unable to agree upon proper provisions for protection against collision submit that question to the determination of this court, it has jurisdiction to determine it.</p> <p>2. Principle upon which the court will act in making such determination discussed.</p>

On bill for relief. Heard on pleadings and proofs taken in open court. The complainant, Edward S. Campbell, is the receiver, appointed by this court, ofjilie Middlesex County Bank, an.insolvent banking„corporati oil. located and doing business at Perth Amboy, in the county of Middlesex.

On bill, plea and joinder of issue thereon. Two causes heard together by consent. The parties to these two causes, and the subject-matter thereof, are the same. The difference in them lies in the statement of different facts and the prayer for a different relief in each, such difference arising out of the difference in the facts.

On bill for construction of will. On cross-bill for relief. On final hearing on bill, answers and proofs.

<p>1. Where, in a suit to quiet title, defendants fail to show any deed to the premises, but show a contract for the purchase of the land by them, and that the holder of the title accepted from them payment of the consideration money, it is evidence of an equitable title in them.</p> <p>2. Where, in a suit to quiet title, defendants fail to show any deed to the premises, but it appears that the owner of the premises accepted from defendants payment in cash and by a bond and mortgage on the premises, the owner's representatives are estopped from setting up a legal title as against the defendants’ equitable one.</p> <p>3. Where the issue was whether land occupied by husband and' wife was that of the husband or of the wife, the wife being deceased, it was proper to admit evidence of declarations made by her to show that she claimed the title to the land.</p> <p>4.. In a suit to quiet title, the issue was whether a certain deed from the one under whom both defendants and the plaintiffs claimed was made to one whom complainants claimed as their grantor, or to the one whom defendants claimed as their grantor.—Held-, that the evidence was insufficient to sustain complainants’ contention.</p> <p>5. The will of one who owned certain notes secured by a mortgage on land bequeathed a certain sum to each of the children of the mortgagor. The will provided that, if the indebtedness from the mortgagor should not be paid, the same might be set off against the legacies to the children, and this was done. The mortgagor had a claim which was allowed by the testator’s executor and set off against the amount due on the notes.</p> <p>■—Beld, that the children were entitled to be subrogated, to the extent of their legacies, to the rights of the testator as mortgagee of the premises, so as to clothe them with an equity prior to that of one who was the equitable owner.</p>

<p>1. Under act March 30th, 1892 (P. L. of 1892 p. 869 % 1), providing that persons furnishing materials for public improvements in municipal corporations may- file liens therefor, which will become absolute liens in favor of every person furnishing materials, their assigns or legal representatives, a claim for materials furnished to a contractor with a city is assignable, giving the assignee a lien therefor.</p> <p>2. Under act March 30th, 1892 (P. L. of 1892 p. 869), providing that the notice of a claim for a lien for materials furnished to a contractor with a city shall state the residence of the claimant, and be accompanied by an affidavit, it is sufficient to state the place of residence in the affidavit, instead of in the body of the nottee.</p> <p>3. Under act March 30th, 1892 (P. L. of 1892 p. 869 § 2), providing that a notice' of a claim for a lien for materials furnished to a contractor with a city shall state the name of the person to whom the materials were furnished, and also the terms, time given and conditions of his contract, a notice is sufficient which states that the lien is claimed on money due or to become due to a certain person according to the terms of his contract with a city for the erection of an engine-house at a certain place, which contract was dated on a certain date and filed in the comptroller’s office on a certain date.</p> <p>4. Under act March 30th, 1892 (P. L. of 1892 p. 869), providing that the notice of a claim for a lien for materials furnished to a contractor with a city for a public work shall state that the amount due is so due after deducting all just credits, a notice is sufficient which states that the amount due is a certain sum, and the amount to grow due is a certain sum.</p> <p>5. A mistake in the notice and affidavit as to the amount due does not affect the validity of the claim when not made intentionally.</p> <p>6. The notice and affidavit of a claim for a lien for materials furnished to a contractor with a city stated that the amount due was a certain sum, and the amount to become due was a certain sum. The whole amount had been due before the-claim was filed, but a note had been taken on account, which had not been paid, which was under discount at the time the claim was made, and afterwards retired by the claimant.—Held, that the claim was not vitiated by such statement.</p> <p>7. Under act March 30th, 1892 (P. L. of 1892 p. 869), providing that notice of a claim shall be filed with the chief financial officer of the city, the notice was properly filed with the city comptroller, instead of the treasurer; the comptroller being required to examine every claim against the city and determine its validity.</p>

On final hearing on bill, answer and proofs. The object of the bill is to enforce, by foreclosure, a mortgage covering the lands of the defendant, Amelia C. Cronk, executed by her and her late husband, William H. Cronk, to the firm of George N. Bliss & Company, of the city of New York, dated December 31st, 1896, to secure the sum of $1,500.

On bill of interpleader. The contest is over a sum of upwards of one thousand four hundred dollars standing on the books of the complainant’s bank to the credit of “Helena Roche or Hy Schwoon, payable to either or survivor.” The defendant Schwoon claims under a bank-book showing the credit as above. .

<p>On bill for divorce. Heard ex parte before a special master.</p>

<p>On bill for specific performance. Heard on bill,-answer, replication and proofs.</p>

<p>I-Iearcl oil bill and answers.</p>

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

<p>On bill for specific performance. Heard on bill, answer and cross-bill, replication and proofs.</p>

<p>On bill for injunction.</p>

<p>A beneficial association’s constitution provided that on the death of a member in good standing a funeral benefit of not less than $30 should be paid as specified in the by-laws, and, should the member leave no relative, an officer of the association should receive the funeral benefit and attend to the decent burial. The by-laws prescribed that a death benefit of $150 should be paid on the death of a member in good standing, and authorized an officer of the association, on the death of a member, to immediately pay $25 to the family or person bearing the expense of the burial.—Held, that a husband of a deceased member of the society, who was the sole survivor of deceased, and who had paid the funeral expenses, was entitled to the death benefit fund, and not the executor of deceased’s estate.</p>

<p>1. Where land is sold under an order of the court under the statute authorizing the sale of land limited over to infants, the fund arising from such a sale is to be regarded as real estate.</p> <p>2. Where a testator clevises all his real estate to two children during their natural lives and after their decease to their lawful issue in fee-simple, the children of each to take their parent’s share, and, if one die without issue and the other leave issue, then all the estate to go to such issue after the death of the survivor by force of the statute, the devise creates a tenancy in common with a limitation over to the issue of each of an undivided one-half.</p> <p>3. Testator gave his real estate for life to his two children, and after their decease to their lawful issue, the children of each to take their parent's share; and provided that his wife and two children should ocóupy his farm, and share equally in its profits, one-third each. On the death of the widow and one of the children, the surviving child of the deceased child petitioned to have paid to him one-half of the fund arising from a sale of all the testator’s real estate, the sale having been made under the statute authorizing the sale of lands limited over to infants.—Reid, that a contention by the surviving sister that the property should be kept in bulk until her death because of the provision as to the farm was'without merit, the widow being dead, and the property having been sold and transmuted into money.</p> <p>4. On the death of one of the daughters leaving issue, the fact that the remaining daughter might die without issue was no obstacle to a distribution to the issue of the deceased daughter of one-half of the fund arising from a sale of the real estate, since the right of the issue of the deceased daughter was fixed by her death.</p>

<p>Where, by articles of, separation, a husband covenants to pay to his wife a certain sum per month for her support and she agrees to accept such payments in satisfaction of alimony, she may maintain an action in her own name to recover past-due sums.</p>

<p>1. In a suit to reform, on the ground of mistake, a mortgage conditioned upon the mortgagor making certain payments to the mortgagee and “successors,” it appeared that the attorney who drew the1 instrument used the word “successors” in the sense of “heirs,” and that the parties intended to convey a fee, instead of merely a life estate.—Held, that the evidence authorized a reformation by substituting the word “heirs” for “successors.”</p> <p>2. An instrument will not be reformed for mistake in the absence of fraud, unless the mistake was mutual.</p> <p>3. Fraud or mistake, to sustain a reformation of an instrument, must be proved beyond a rational doubt.</p> <p>4. In a suit to reform a mortgage conditioned upon the mortgagor paying a debt in five years, with interest from date at “5 per cent., five years from date, which will be on May 1st, 1905,” on the ground of mistake, so as to provide for the payment of interest annually, instead of at the end of the five years, as claimed by mortgagor, the attorney who drew the instrument testified that the interest was to be paid at the end of five years, while an agent of the mortgagee testified that the interest was to be paid annually.—Held, that the testimony, measured by common experience and business usage, established an agreement which required the annual payment of interest.</p>

<p>1. A will directed the executors to reserve the sum of $5,000 for a monument, authorized expenditures for.a fence and certain inscriptions, and concluded by empowering them “to expend for the above purposes the sum of $5,000, and no more.”—Bold, not to require the expenditure of the entire $5,000 for the purposes named, but only that a greater sum should not be used.</p> <p>2. Held, also, that if the will required the expenditure of the whole $5,000 for the purpose named, the residuary legatees would not be benefited by the non-compliance with its conditions, but the executors would still be bound to carry out its directions, notwithstanding the erection of the cheaper monument.</p> <p>3. Where one of the residuary legatees in a will dies before the testator, under the peculiar language of the will, his share does not go to the other residuary legatees, but the testator dies intestate in respect thereto.</p> <p>4. A will directed that certain land be sold after the death of the testator’s wife, and that the money be divided among the residuary legatees, and the estate was so converted. The share of one of such legatees in the proceeds of the sale had, however, lapsed by her death before that of testator.-—Beld, that the purpose of the conversion having failed, such share should be treated, for the purposes of distribution, as real estate, and not as personalty, and should go to the heir-at-law.</p> <p>5. Under the Wills act, section 34 (Q-en. 8iat. p. 3763)—Beld, that the widow of testator’s brother was not within the act, and that a devise to her lapsed by her death before that of the testator.</p>

<p>1. Where the mortgagor of a stock of shoes sold it to a company which took subject to the encumbrances, but did not assume the mortgage debt, it never became the personal obligation of the company so as to entitle the mortgagee to recover it from the company’s receiver.</p> <p>2. Where a partner continuing a shoe business gave a chattel mortgage to his late partner on the book accounts due to the dissolved firm, it imposed a lien on them, but not on the money collected on such accounts by a company which purchased the business from the mortgagor, the money being mixed with other money and used in the regular course of.the company’s business.</p> <p>3. Where a continuing partner of a firm gave a chattel mortgage to the other partner, on the book accounts and afterwards sold the business to a company, the mortgagee is entitled to claim from its assets whatever the company collected' on such accounts, as an unpreferred, creditor, as for money received to his use.</p> <p>4. Where a chattel mortgagee sold, under his mortgage, machines put on the premises by a purchaser of the business from the mprtgagor, which were distinct from the property mortgaged, and capable of identification, he is answerable for their value.</p>

<p>Under a will bequeathing property to a certain legatee and directing that on his death the property should pass to his next of kin according to the laws of the state, the children of a deceased sister of such legatee are entitled, on the death of the latter, to share with the surviving brothers of the legatee in such property as the representatives of the deceased sister, though the surviving brothers are his nearest of kin.</p>

<p>Testator’s will gave his wife a life estate in certain land, and provided that she might sell the same, if she deemed it advisable, and directed the investment of the proceeds. It provided that, on the death of the wife, such land, if not sold, and, if sold, the proceeds should go to a daughter for life, and that she might “invest the same” in a certain manner.' The daughter’s children were given the remainder in such property, in whatever form it might be.—Held, that in a suit by the daughter to compel specific performance of her contract to sell the fee in the land—it not being plain that it was not the intention of the testator, in employing the words “invest the same,” to refer to the proceeds in case of a sale by the widow so that the daughter would have no power of sale by implication, and the children of the daughter not being parties to the litigation, and it being impossible to’make tliem parties, and they having a right to litigate the question after their mother’s death—a decree for complainant should be denied.</p>

<p>1. A woman about seventy years of age conveyed one-half of her interest in certain property to her granddaughter, reserving to herself its use for life. She was a woman of eccentricities, but capably managed her business affairs. The subscribing witness explained the nature of the deed to her, and had an intelligent explanation from her of her reasons for its execution.—H'eld, valid.</p> <p>2. And held, also, to be a contract presently forceful, and therefore not invalid because not lawfully executed as a will.</p> <p>3. The instrument is not a conditional sale and is therefore not invalid, ’ 'because it does not comply with the statutory requirements.</p> <p>4. The instrument is a gift and not an assignment, and valid, though not based on a valuable consideration.</p>

This is a petition filed by the township committee of Palmyra township, Burlington county, praying that the Pennsylvania Railroad Company may be ordered to erect gates to protect travel across its tracks at Oinnaminson avenue in that township.

<p>1. Where one is guilty of a -contempt of court by removing fixtures from a mill of which he is in possession, while under an injunction restraining such removal, and it appears that an order of restoration of the removed equipment would be an ineffectual remedy because the removed equipment has to some extent been injured, and in some instances destroyed, the party in contempt, in addition to a restoration, must meet any expenditure of money required to remedy the wrong done.</p> <p>2. Where one commits a contempt of court by removing fixtures from a mill of which he is in possession, while under an injunction forbidding such removal, he will not only be compelled to restore the fixtures and make reparation for damage done to the injured party, but a punishment will be imposed because of the offence to the dignity of the court, and the punishment to be inflicted for the offence to its dignity will depend on the conduct of defendant in regard to the reparation for the injury.</p>

The bill in this case is filed, to foreclose a mortgage, made by the defendant the Penn Cordage Company, a corporation of the State of New Jersey, to the Knickerbocker Trust Company, a corporation of the State of New York, to secure the payment of numerous bonds of the cordage company, amounting, in all, to $100,000, with interest, &c. The complainant mortgagee, the Knickerbocker.

<p>1. A complainant had been a resident of the state for two years, and defendant, a non-resident, filed a cross-complaint seeking divorce on the ground of desertion. Complainant refused to move a hearing on his bill and it was dismissed.-—Held,, that defendant was not deprived of her right to relief on the cross-bill, one of the parties being a resident.</p> <p>2. On decree of divorce for a wife of middle age and in good health, and in great part supporting herself, in the absence of any reason showing why permanent alimony should -be allowed, an order for the same will not be made.</p> <p>3. In a decree of divorce at the suit of a wife, there may be an allowance for the maintenance of a minor child by the father.</p> <p>4. Where, on divorce at the suit of a wife, it appears that there is a minor daughter, and that the father has been content to live without any association with the child for six years, and the character of the wife is not attacked, the wife will be awarded the custody of the child, the father having the right of visitation.</p>

'On bill ancl answer. This bill is filed by the complainants as executors of the will of Aaron T. Burroughs, asking the instruction of this court as to the meaning of their testator’s will, affecting a bequest to Thomas Downing, contained in the nineteenth item. The bill sets out portions of the will whereby the testator disposes of nine money legacies to the nephews and nieces.

<p>On bill for specific performance, answer and proofs.</p>

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

<p>On motion to strike out bill.</p>

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

<p>1. A statute of limitations creates a mere personal right, which may be waived by the defendant.</p> <p>2. Where a defendant has, by deception or by any violation of duty toward complainant, caused him to subject his claim to the bar of limitations, equity will not permit him to hold the advantage thus obtained.</p> <p>3. Upon the facts shown—Held, to justify a preliminary injunction restraining the executors from raising the defence of limitations in the suit on the claim, whether or not they intended to mislead complainant.</p>

<p>1. The court of chancery has jurisdiction to entertain a suit to obtain the construction of a will in order to establish and recover a legacy.</p> <p>2. Testatrix’s estate, at the time of her death, was worth about $120,000. Her family in 1882, when her will was made, consisted of herself, her husband and his two daughters by a former marriage. She gave $10,000 to each of her stepdaughters, made other legacies amounting to $25,000, and gave the entire residue to her husband, “to have and to hold the same unto him and to his heirs, executors, administrators and assigns forever.” The husband died before the testatrix.—Held, in a suit by the stepdaughters to recover the residuary legacy that the general rule is that a legacy to A “and his heirs” is a legacy to A alone, the word “heirs” being a word of limitation and not of substitution; that in the case of a legacy to A “or his heirs” tne general rule is otherwise; that a special meaning of words may be accepted if such intention can be gathered from the whole will when construed with the aid of such extrinsic evidence as the law makes competent, and that the -word “and” may thus be construed in the sense of the word “or” if such meaning is plainly indicated; that in this case the legacy was not in form to the heirs of the husband, but to the husband alone, with-a formal habendum clause used to define his title and tenure and that if a case could be imagined where a technical habendum clause like this could have any other meaning attributed to it besides that which it has borne from time immemorial, there is nothing to justify such a construction in this case.—Held further, that if the words to be construed were a part of the language employed to effect a legacy instead of being a part of the language employed to define the title and tenure of the legatee, and if the word “and” might be construed as “or,” still it would seem that the gift over would be void for uncertainty.</p> <p>3. In a suit to construe a will, allegations in the bill as to the declared purpose of testatrix, her understanding of the meaning and legal effect of the language of her will, her instructions to her counsel with reference to the drafting of her will, and her intentions in refraining from changing her will during the last years of her life, must be excluded from consideration.</p>

<p>1. Upon an application to an orphans 'court by an administrator cum testamento annemo for the approval of a sale of testator’s lands, made by him under the provisions of the “Supplement to an act entitled ‘An act concerning executors and the administration of intestates’ estates’ [Revision], approved March twenty-seventh, one thousand eight hundred and seventy-four, regulating the sale of lands by administrators with the will annexed, and defining their power,” which supplement was approved April 6th, 1888 {Gen. Stat. p. 110), the court may not consider or adjudicate upon a claim that the lands descended to testator’s heirs-at-law or were specifically devised by his will and were not within the power of sale conferred by the will.</p> <p>2. But the administrator applying for approval of his sale of testator’s lands must establish by proof his right to act as administrator cum testamento annexo in this state in order to give jurisdiction to the orphans court.</p> <p>3. There being no original jurisdiction in the prerogative court to approve such sales by administrators, additional proofs in this court are not admissible, and an appeal from the order of the orphans court must be decided upon the evidence before that court.</p> <p>4. When the fair value of the land may be affected by adverse claims of title, there should be sufficient proof of the nature and extent of such claims to enable the orphans court to determine whether the sale has been made at a fair price therefor.</p>

<p>1. Upon a caveat against the admission of a will to probate, caveators petitioned the orphans court to certify into the circuit court the questions raised pursuant to section 19 of the “Act respecting orphans courts and relating to the powers and duty of the ordinary and the orphans courts and surrogates,” approved March 27th, 1874. Gen. Siai p. 2359. That act had been superseded by the act of the same title, approved June 14th. 1898. P. L. of 1898 p. 715. The provisions of the latter act in respect to-certifying such questions to the circuit court being in all respects like those of the former act, and the procedure and practice in the cause being ¡n conformity with the act in force—Held, that a decree made thereon is not invalid because the authority for the proceeding was miscited.</p> <p>2. Upon an appeal from a decree denying probate upon the finding of a jury that the contested writing was not the will of testator, because it was the product of undue influence, heard upon the evidence which was-before the jury, their verdict will induce and require careful scrutiny before reaching a result not in accord therewith, but will have no other effect.</p> <p>3. The’burden of establishing the influence which is “undue,” rests on those who assert it. Mere possession of influence’ and opportunity and motive to exert it, will not suffice. It must appear either directly or by justifiable inference from facts proved that the influence was exerted and operated to dominate testator and coerce him to make a disposition of his property which he would not otherwise have made.</p> <p>4. When undue influence is claimed to be established by inference from certain facts proved, and, upon all the facts proved, an equally justifiable inference may be drawn that the will executed was what testator would have made under the circumstances, the burden on contestants is not supported.</p>

<p>Where testatrix’s mental capacity was not shown to have been affected .at the time she made her will, evidence that the principal legatee was not related to her, but was a mere friend of the family, and had assisted her in the management of the estate, and that during the three days between •the drawing and execution of the will testatrix talked with him about the same, and he had spoken in letters and in a newspaper of a trust respecting the property,, was not sufficient to show undue influence, where he had nothing to do with the execution of the will, and testified that he did not know how she intended to dispose of the property until after the will was •drawn.</p>

George P. Pomeroy, of the State of Illinois, died in the year 1887, having first executed a will and a codicil thereto in due form of law to pass real estate, which will and codicil are as follows: “Know all persons, that I, George P. Pomeroy, now residing temporarily in Paris, Prance, do hereby make and publish this my last will and testament, and hereby revoke, cancel and annul the trust agreements executed by me to Edwin Cowles, L. Prentiss and Prank R. Chandler, and…

<p>1. Under section 49 of our Corporation act (P. L. of 1896 p. 877), when an original issue of corporate stock for property to be purchased is contemplated, it is the duty of the directors to see that the real value of the property is at least equal to the face value of the stock.</p> <p>2. Before an original issue of corporate stock for property to be purchased takes place, the iona fide judgment of the directors as to the value of the property, while it is entitled to considerable weight, is not conclusive, but may be reviewed at the. instance of existing" stockholders; and if, on such review by a court of equity, the value of the property appears to be less than the face value of the stock, the issue should be restrained.</p> <p>S. After stock has been issued as full-paid stock for property purchased, the judgment of the directors as to .the value of the property becomes conclusive, in the absence of actual fraud in the transaction, and such stock is not liable to any further call.</p> <p>4. An increase of corporate stock, voted for by the board of directors and by the requisite majority of stockholders, in order to issue such stock for property worth less than the face value of the stock, should be restrained at the instance of dissenting stockholders.</p>

The order of December 8th and injunction were each served upon Eirner and Jansen. The other defendants were officers of the lodge.

<p>On appeal from the order of August 8th, 1900, advised by Vice-Chancellor Stevens, whoso opinion is reported in 15 Diclc. Gh. Rep. 880. No opinion on final hearing.</p>

<p>On appeal from a decree advised by Vice-Chancellor Reed, whose opinion is reported in Miller v. Savage, 15 Dick. Gh. Rep. SOI/..</p>

<p>1. When a claim is submitted to the jurisdiction of a court for determination, the common statute of limitations, and the analogous bars and presumptions in equity and at law, are regarded, for all purposes of the pending litigation, as having ceased to. operate against the claim, so that, If it be not then barred, the subsequent lapse of time will not defeat it.</p> <p>2. Between parties holding claims equally equitable, he who has also-the legal title must prevail, when required to defend his rights in a court of equity.</p>

<p>A franchise tax levied by the state during the receivership of an insolvent corporation is entitled to payment ’n preference to the liabilities incurred by the receivers in carrying on the business of the insolvent corporation, but not to payment in preference to the receivers’ allowance and the expenses of winding up the corporation.</p>

On appeal of R. T. & W. B. Stout from an order of the chancellor striking out their cross-bill, and on appeal of Babbitt & Lawrence from the final decree advised by Vice-Chancellor Emery. Upon making the order to strike out the cross-bill, the following memorandum was filed by the chancellor: The solicitors in Duprai v. McClain, acting for their clients, agree that Messrs.

<p>V., who held the legal title to certain premises charged with a resulting trust in favor of F., conveyed the same to one IC, in satisfaction of a debt due from her to him, he having no knowledge of the existence of the trust. At the time of the conveyance F. was in possession of the premises. ■—Helé, that F.’s possession was constructive notice to K. of the right under which he was in the occupation of the premises, and that K. took title thereto subject to the trust existing in favor of F.—Helé, further, that the failure of F. to institute proceedings for the enforcement of the trust un-til the expiration of two years after the conveyance to K. was not such laches as barred him from obtaiipng full relief against K., and would not justify a court of equity in refusing to direct a conveyance of the premises by K. to him, except upon condition that he pay to K. the amount of the indebtedness in satisfaction of which the latter received the conveyance from V.</p>

<p>The expenditure by a husband of his own moneys in the improvement of the property of his wife is presumed to be a gift to her, in the absence of proof of a contrary intent.</p>

Ezra Miller, late of the township of Ilohokus, in the county of Bergen, died, July 12th, 1885, leaving a last will and testament, published December 26th, 1883, which was duly admitted to probate by the orphans court of the county of Bergen. The sixth clause of this will is as follows: “Sixth.

The opinions of the vice-chancellor are respectively reported in 1(6 Atl. Rep. 686, 688. On January 25th, 1900, the attorney-general, on relation of the Morris & Cumings Dredging Company, owners of land at the foot of Chapel avenue, a public highway in Jersey City, and that company, as complainant, filed a joint information and bill against the Greenville and Hudson Railway Company, a corporation organized in 1895 under the General Railroad law.

Oh. Rep. ISfi. The bill in this case was died—first, for directions to the executors of John Jelliif, deceased, as to whether Caroline A. Riggs, one of his children, who died before the life tenant (his widow), took a vested interest in the estate of her father at his death, or would only take it in case she outlived her mother, the life tenant; and second, if she did take a vested interest at her father's death, did she devise and bequeath, by her last will, all her…

<p>1. A conveyance of land by a husband to his wife by deed through a third party, to secure her for the principal of money of her separate estate taken and used by him, will be decreed to be a mortgage, and good as .against creditors to the extent only of the amount of the principal so received by him, with interest thereon from the date of the delivery of such •deed.</p> <p>2. Where such a conveyance is attacked by creditors as voluntary or fraudulent, the burthen is on the wife to establish that her husband took and used her separate estate; but when that fact is established, whether such taking was with or without her consent, the burthen then shifts, and those claiming that such taking and use was by gift of the wife must establish such gift to the husband.</p> <p>3. The presumption of law is against a gift by the wife of the principal of her separate property to the husband, and the burthen of proving it is upon him who asserts it.</p> <p>4. The rule here stated does not apply to the income of the wife’s separate estate. A gift of that may be implied from its receipt by the husband.</p> <p>5. The statutes in the several states as to the property of married women, when as broad as the Texas statute or our own, have entirely overthrown the common law rule of the merger of the wife’s entity and estate, upon marriage, in the husband.</p> <p>6. It is unnecessary, under these statutes, that a wife shall take from her husband a promissory note, or other acknowledgment, upon handing him money of her separate estate, to be able to establish that such taking by him was a loan. In the transaction she will be considered as a feme sole, and as if a stranger to her husband.</p> <p>7. In establishing her claim against her husband’s estate, she is not more competent to testify to transactions with or statements by the testator or intestate, when the executor or administrator of her deceased husband is a necessary party, than any other witness.</p>

<p>On appeal from an order advised by Vice-Chancellor Pitney, whose opinion is reported in Tate v. Field, 15 Dick. Ch. Rep. 42.</p>

<p>On appeal of J. Edward Addicts, a general creditor, from a decree advised by Vice-Chancellor Emery. No opinion.</p>

<p>On appeal from a decree of September 6th, 1900,'advised by Vice-Chancellor Reed. No opinion.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 15 Dick. Gli. Rep. 25.</p>

<p>On appeal from a decree advised by Vice-Chancellor Emery> whose opinion in Kellogg v. Scott is reported in IS Dick. Ch. Rep. 344.</p>

<p>On appeal from a decree advised by Vice-Chancellor Stevens, whose opinion is reported in 4 Dick. Ch. Rep. 136.</p>

This case was argued at the June Term, 1900, decided in that term, and record was remitted at November Term, 1900. Mr. Chauncey G-. Parker, having rendered services as counsel for respondents, makes application for counsel fees and printing upon the trial in the court of errors and appeals, having.given notice to the trustees of the fund, and adult parties respondent, and also for an amendment of the remittitur for that purpose.