Volume 64 — New Jersey Equity Reports

<p>On application for decree on master’s report.</p>

<p>Testator devised and bequeathed to his executors the residue of his estate in trust, among other things, “to give and distribute one hundred thousand dollars thereof, within five years from the date of my death, for such religious, charitable or educational or other purposes as they may deem advisable, provided, nevertheless, that no portion thereof shall be given to or distributed among his wife or children, individually or collectively.” —Held, (1) that by the true construction of the language used by testator to express his intent, the trustees were permitted to devote the sum named to purposes other than those which are religious, charitable or educational, and therefore to other than chaz-i table uses; and (2) that although by such construction the testamentary disposition of the $100,000 fails and that sum will thereby go to testator’s widow and children, an intent to limit the trustees in disposing of that sum to uses which are charitable but other than religious or educational, is not discoverable in the proviso that no part of the sum should be given or distributed to his widow or children, or any of them.</p>

On bill for the construction of the following clause of the will of Charlotte Jordon, deceased: “I give, devise and bequeath unto my executrix, Augusta Jordon Hopkins aforesaid, and my executor, James F. Minturn, eounselor-at-Iaw, of Hoboken, all the real estate of which I may die seized and particularly the premises known as numbers C09 and 611 Washington street, in the said city of Hoboken, being fifty feet in width, by one hundred feet in depth, in trust to collect the…

<p>A father, by will, devised to his son and three daughters separate tracts of landl. The devise to the son was by name and without words of perpetuity or inheritance.—Held, (1) that under the provisions -of the act entitled “An act to pass estates in fee-simple by certain devises in wills and testaments and to limit estates in tail,” passed August 27th, 1784 (Gen. Stat. p. 3763), the son took an absolute estate in fee-simple in the lands devised, unless the will disclosed an intent to convey only an estate for life, or contained a devise over upon his death; (2) a provision that in case his son died without issue, his wife, Lydia, should not have any interest in the lands devised to the son, does not disclose an intent to pass to him only an estate for life. The will further provided that none of the real estate devised to his children should be sold by any of them without first obtaining a full written consent of all the children or the remainder of them.—Held, further, (3) a, that if that provision is to be construed as imposing an unlimited restraint upon alienation, it is void as repugnant to the estate devised, and 6, that if construed as imposing a partial restraint upon alienation, limited to the period of the life of the last surviving sister, in the absence of a devise over, or a declaration of a forfeiture of the son’s estate in case of sale without consent, the devise to him must be held to pass to him an absolute estate in fee-simple.</p>

<p>Under proceedings invoking the general power of the chancellor over the affairs of infants and their custody during minority, or upon habeas corpus, under the provisions of section 12 of the “Act concerning minors, their adoption, custody and maintenance” [Revision of 1902] (P. L. of 1902 p. 259), the chancellor may, by decree or order, award the custody of an infant child of parents living in a state of separation without being divorced, to one of them, and incidentally jn’ovide for the access of the other parent to the child under proper restrictions. A bill filed by the father of such a child against the mother having the child in her custody, not seeking a decree fixing such custody or making the child a party, but only asking a mandatory injunction requiring the mother to permit the father to have access to the child, does riot properly invoke the jurisdiction of the chancellor.</p>

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

<p>The noise caused by the shouts, cheers and stamping of feet of spectators at Sunday ball games, even though constituting a public nuisance, which may be dealt with as such, will be enjoined at the suit of individuals living in the neighborhood; it being such as to appreciably disturb their rest and quiet.</p>

Ou bill to foreclose a mortgage on land. On final Rearing on pleadings and proofs taken before a master. Defence, usury, by reason whereof nothing was due at the date of the filing of the bill.

<p>1. Premises sold under a senior mortgage, subject to two years’ taxes, were purchased by the mortgagee .foreclosing, and did not bring enough to satisfy the mortgage. A receiver appointed at the instance of a junior moftgagee.reported funds in hand, and. asked for discharge.—Held, that the taxes being á lien on the land at the time it was purchased, the purchasing mortgagee'st'ood'in the same relation as any stranger, and was not entitled to have the amount derived from the receivership applied to payment of taxes.</p> <p>2. After a senior mortgagee began foreclosure proceedings, a junior-mortgagee applied for and secured the appointment of a receiver, without any order as to the application of funds that might be derived from the receivership. The premises were purchased by the senior mortgagee for less than enough to satisfy his mortgage.—Held, that he was entitled, as against the junior mortgagee, to have funds derived from the receivership applied to the deficiency, and the junior mortgagee was not entitled to any priority as to such fund by securing the appointment.</p>

a claim on behalf of Albert I. Drayton. The rejected claim was for $2,535 for rent of the stores known as Eos. 548 and 550 Newark avenue, Jersey City, with.frame stable in the rear, from February 1st, 1902; to May 1st, 1905, at $780 a year, according to the terms of a lease made between the parties on the 21st of April, 1900, and a supplement thereto.

<p>A typewriter company appointed “dealers” for the sale of its machines in South Africa, they to purchase and pay for the machines consigned to them, with the exclusive right of sale. A third party had been appointed temporarily, the appointment terminating May 1st, 1894, andi the defendant corporation, which had an agent in South Africa, had, late in June, been appointed in his stead, but the temporary dealer was to have the right to continue, if he desired, to November 1st. He accordingly in July sent in an order for machines, which were sent to him. The typewriter company at the same time wrote defendant’s agent that it would draw on the temporary dealer in the usual way, and send the dirafts to him to be collected, “by presenting the drafts to him either personally or through the bank which usually receives them,” &c. A few days later they sent the draft to defendant, with the reguest that it be transmitted to the agent for collection, &c. The agent made the collection and deposited the. proceeds to. the credit of the defendant, which afterwardls became insolvent.—Held, that the agent was acting in the matter for the typewriter company and should have remitted direct to it', and it was accordingly entitled to have its claim for the amount of the draft preferred.</p>

On exceptions to master’s report. This matter is a continuation of that reported in 13 Dick. Ch. Rep. 74, where will he found a full statement of the case, and is heard on exceptions to a master’s report made pursuant to an order of reference, as directed by the opinion there reported. The reference was made to the late Master Romaine, who took considerable testimony in addition to that produced before the court on the previous hearing, but made no report.

On final hearing on bill, answer and proofs. This is a bill to foreclose a mortgage dated November 23d, 1899, made’ by the defendant to the complainant, to secure the sum of $2,000 in one year, with interest payable semi-annually.

<p>Petition for divorce. On final hearing on pleadings and proofs in open court.</p>

On application for preliminary injunction, heard on bill, amended bill and affidavits, answer to bill and amended bill and affidavits, and affidavits in reply.

<p>On application to cross-examine complainant and affiants and to submit further affidavits.</p>

<p>1. The charter of the defendant the Tacoma, &c., company, a New Jersey corporation, declared one of its objects to be “to acquire, build, construct, own and operate outside of the State of New Jersey railway properties of all kinds and descriptions -and with any kind of motive power, and to sell and lease the same.” Another object was “to acquire, by purchase or otherwise, the stocks, bonds and other evidences of indebtedness of persons, firms or corporations, * * * and unlimitedly to -hold, purchase, mortgage and convey real and personal property of any kind or description in any state or territory of the United States.” The by-laws of the company provided that “with the consent, in writing, and pursuant to a vote of the holders of -a majority of the stock issued and outstanding, the stockholders having been formally convened in a meeting, the directors shall 'have power to sell, mortgage or otherwise dispose of the whole property of the corporation.” The company acquired and operated an electric street railway system in the city of Tacoma, -in the State of Washington, and, pursuant to the by-laws, the stockholders authorized a sale of the railway -and entire property of the company to a Washington company, to be paid for by stock of the Washington company to be issued to the New Jersey corporation.—Held, that this sale and transfer was authorized under the Corporation act (section 6) making it lawful to form a company to construct and operate railroads outside of this state, and (section 7) authorizing it to hold and convey real and personal property out of this state, provided such powers are included within the objects set forth in its certificate.</p> <p>2. At the meeting of stockholders which approved the sale, resolutions were also passed for the dissolution of the New Jersey company. The dissolution of the company and the distribution among its stockholders of the stock or its proceeds was part of the entire plan, but the resolution for dissolution was a separate and distinct resolution of the company. This resolution was ineffective because of failure tO' give the notice for the meeting required by the statute. The directors propose to carry out the resolution for sale independent of proceedings for dissolution.—Held, that the separate and distinct resolution for sale still remained effective, and the powers of the directors as to tlie terms of sale under the Charter and by-laws were not to- be governed by the provisions of the Corporation act (section 54) restricting' a sale after dissolution to sales for cash or part credit on mortgage.</p> <p>3. The circumstance that the stock oí the Washington company, if received by the New Jersey company, would become subject in- its hands to its mortgage previously given on existing and subsequently acquired property, is not an- equitable reason for enjoining the sale.</p> <p>4 Under the laws of the State of Washington-, the Washington company had legal authority to issue full-paid stock for the purchase, on a valuation fixed in good faith, by the directors, and when so issued, the stock is not assessable for the debts of an -existing creditor or of a subsequent creditor with notice. (Statutes and decisions of Washington examined.) The sale therefore should not be enjoined because of this alleged liability.</p> <p>5. The Corporation acts of Washington do not expressly authorize the purchase by one corporation' of the stock of another, and the courts of Washington have decided that a -corporation- created under their law has no power to purchase the stock of another similar corporation or to vote upon such stock if purchased.—Held, (1) that the New Jersey corporation having the power under its -chanter to purchase th-e stock of a Washington corporation, its power to make the purchase and vote on the stock in the State of Washington depends upon the law or rule of comity between the states, which law or rule authorizes the purchase, unless it has been affirmatively declared by the -constitution, statutes or decisions of the courts of Washington to- violate its public policy; (2) -th-e decisions of the courts of Washington construing the statutory powers of its own corporations to purchase stock :of its own corporations and vote thereon, are not to be taken as decisions on it® public policy under this law of comity, -and in the absence of any provision by th-e constitution-, statutes or decisions by its eoui-ts, affirming- that such purchase by a foreign corporation of the- stock of a domestic corporation is against its public policy, .the general law of comity will govern. The purchase of the stock is valid, and the New Jersey company will have the right to vote thereon.</p> <p>6. The advisability of the sale in- its business aspect is, in the absence of fraud, a matter for the decision of the stockholders and directors, and upon al-1 the affidavits, it is considered that no such case of fraud is made out -as -entitles the complainant to a preliminary injunction. Donald v. American Smelting and Refining Co., 17 Dick. Ch. Rep. 729 (Errors and Appeals, 1901), distinguished.</p>

<p>On motion to dismiss bill.</p>

On bill to foreclose a real ’estate mortgage and cross-bill to foreclose a chattel mortgage. The real estate mortgage was executed on December 1st, 1899, by the Atlantic City Laundry Company to the . Atlantic Safe Deposit and Trust Company. It covered a tract of laud, with the buildings thereon, at Atlantic City.

<p>Where it appears that the excavation of sand from a portion of the seashore by the owner thereof will, by the laws of gravitation and by wave motion, result in the removal of adjoining soil of another, and that such latter removal will expose the land of a third party to the action of the waves, the third party is entitled to an injunction restraining the excavation.</p>

<p>On bill to enforce a vendor’s lien.</p>

<p>Where a tract of land was overassessed for a macadam road, owing, to a mistake by the commissioners as to the number of acres in the tract, and the owner did not receive notice of hearing for confirmation or of confirmation given as ordered by the court, pursuant to Gen. Stat. p. 2907 §§ 421, 426, until after the expiration of the thirty days from the confirmation, within which time cortiorari was, by such statute authorized, the supreme court could declare such, limitation unreasonable in such case, and a bill filed by the owner to restrain the collection of the excessive assessment should show that he lia-d already applied to such court for a writ of certiorari on such facts, and should also show clearly the facts regarding his failure to see the published notice.</p>

<p>Though an executor is made trustee by a provision in the will giving Mm power to sell and take charge of the real estate, a suit merely to foreclose a mortgage thereon is not within P. L. of 1898 p. 738 § 65, providing that to enable executors or administrators to examine into the condition of the estate and ascertain the amount and value thereof, and the debts to be paid therefrom, no action shall be brought against them within six months after granting of probate to an executor, or letters of administration to an administrator.</p>

<p>Traction act of 1893, section 1 (Gen. Stat. p. 3235), requires a street railroad corporation, before using any street or highway, to obtain the consent of the governing body “of the township or county” within which the street or highway used is located. Act of 1894 (Gen. Stat. p. 3247) provides that, in addition to the restrictions prescribed by law, no street railroad shall be constructed in any street in any municipality, town, township, village or borough without the consent of its governing body, and act of 1896 (P. L. of 1896 p. 329) requires the consent of the governing bodies of cities, towns and villages, and declares that if any board or public authority other than the governing body of such municipality, town or village shall have control of any of the streets or highways over which the tracks are to be located, the consent of such other body or public authority shall also be obtained.—Held, that though under the act of 1893, the consent of the governing body “of the township or county” only need be obtained, the subsequent acts required the consent of both county and township or other municipality within the territory in which the railroad lines were proposed to be built.</p>

<p>1. A corporation entered into an agreement with another for the substitution of non-cumulative for cumulative dividend-paying preferred stock and the funding of dividends in arrears. The agreement provided that the corporation should issue to each assenting holder of preferred stock a funding certificate for the arrears, which should carry interest at four per cent, per annum, payable exclusively out of the net profits of the corporation for the year, and should not be cumulative, and should be payable in priority to any dividends on the capital stock for the year. —Held, that the agreement did not provide that the interest fund should be made a first charge on all the earnings to the exclusion of non-assenting holders of preferred stock, and, if the corporation made provision for the payment of such interest, it would be required to pay a like amount to such non-assenting holders.</p> <p>2. The court, at the suit of a non-assenting holder of preferred stock, will not issue a temporary injunction restraining the corporation from carrying the agreement into effect, for no irreparable injury will result to him. If, after the consummation of the agreement, an attempt is made to pay dividends to assenting holders of preferred stock in preference to non-assenting, the latter can assert their rights by a proceeding in court.</p> <p>3. The court, at the suit of non-assenting holders of common stock, will not issue a temporary injunction restraining the corporation from carrying the agreement into effect, as it works to their benefit in that it accelerates their chances of participation in dividends.</p>

<p>1. A testator gave his estate to his wife, and after her death he.provided that'it should be equally divided among his children. If any of the children died without leaving issue him or her surviving, the share of the deceased child was to be divided among the other children.' In the lifetime of the wife a son died leaving lawful issue..—Held, that the.son’s interest vested on the death of the testator, and that the contingency on which it was to be divested not having happened, it went, on the death of testator’s wife, to the son’s executor.</p> <p>2. During the continuance of the life estate a son died, leaving issue, and after him a daughter, without issue.—Held, that on the death of the widow the “heirs or legal representatives” of the son would take the portion of the daughter’s share, which the son would have taken had he dived.—Held, further, that under the designation-“heirs or legal representatives” the “heirs”, would take the real estate and the next of kin the personalty.</p>

<p>On petition for divorce. On master’s report ex parte.</p>

<p>1. Specific performance of a contract to purchase realty will not be decreed against the purchaser if there is such doubt as to the seller’s ability to convey a good title that the purchaser, if compelled to perform, would be subjected to the hazard of litigation.</p> <p>2. A doubt precluding specific performance exists if the seller’s title depends on the determination of a legal question not settled by previous decisions, or concerning which there are dicta of weight indicating that courts might differ as to its determination.</p> <p>3. In a suit by the vendor in a contract for the sale of realty, to compel specific performance by the vendee who refuses to perform on the ground that there is doubt as to the vendor’s ability to convey a good title, the court, if the doubt arises in ascertaining the construction of some ill-expressed instrument, will not determine the legal effect thereof and compel the purchaser to take the title:</p>

<p>1. Where a bill prays that a resulting trust may be declared, but shows that the defendant (the holder of the legal title) had, to the knowledge of the complainants, held possession of the property for about twenty years, and had, during that time, asserted its own right and continuously refused to recognize the rights of the complainants, or to permit them to use the property, during all which time no suit was brought to declare or enforce the alleged trust, no reason being shown for the delay, the bill of complaint will, on a motion under the two hundred and thirteenth rale, be dismissed for laches.</p> <p>2. The bill prays that the alleged trust property may be conveyed to a corporation named as complainant in the bill, to hold as trustee for the purposes of the alleged trust. It is not alleged that this corporation either has or could have any interest in the property, nor is there any showing that it has any corporate power to execute the alleged trust. It cannot be held to be a proper party to such a suit.</p> <p>3. Where a bill to declare and enforce a resulting trust alleges that complainants contributed, in work and materials, the amount which resulted in the construction of a two-story brick school-house, it may be fairly inferred that the sum so contributed exceeded $50, the minimum limit of value of which this court will entertain jurisdiction.</p> <p>4. Where the title to property was conveyed to defendant to hold subject to the direction of “complainants and the Italian colony,” and to convey to such persons as they might designate, no reason being shown why the Italian colony is not made a party, the complainants alone cannot maintain a bill to enforce such a trust.</p>

<p>On bill of interpleader on mechanics5 lien contract. On answers and proofs.</p>

<p>On bill, &e. On motion to strike out parts of bill.</p>

On bttl and affidavits. On answer and affidavits. On order to show cause, &c. The complainant is the owner of a house and lot of land, Ho. 809 Broadway, Oamden, Hew Jersey.

On bill, answer and proofs. The bill of complaint in this cause is filed by Peter B. Reed and Henry Boice to foreclose a bond and mortgage made to them, dated the 25th day of May, 1898, conditioned for the payment of $14,000 within five years from the date thereof, with interest thereon payable semi-annually, with a special condition that if at any time default should be made in payment of interest for the space of thirty days after any semi-annual-payment thereof should…

<p>1. Delivery of a deed is matter of intention, rather than action in any definite form. Acts or declarations of the grantor and grantee, which, taken in connection with the surrounding circumstances, indicate that the parties intended to deliver the deed, and believed they had done so, will be held to be a delivery. *</p> <p>2. Mere proof of registration of a deed is not in itself conclusive evidence of a delivery. But proof of registration', with the assent of the parties, is forceful evidence' of a delivery.</p> <p>3. Where a grantor, in anticipation of his entering upon a new business, conveys land to a grantee for the purpose of preventing its application to payment of the grantor’s possible debts in case financial misfortune should result from the venture, the conveyance is obnoxious to the statute of frauds, as made with an intent to hinder creditors.</p> <p>4. Such a conveyance is invalid as against the creditors of the grantor, but is valid as between the grantor and grantee and their heirs-at-law.</p> <p>5. A court of equity will not aid the heirs-at-law of such a grantor to declare such a deed to be a nullity, nor will it direct a reconveyance to them. It will leave the title to the land whese the intending fraud-doers place it.</p> <p>6. Where it is shown that a conveyance was made with such an intent, the court will not be induced to lend its aid because it is proven that the feared misfortune did not in fact happen. The court will say to applicants for relief in such a case, “it is no ground for relief, that although you intended to cheat creditors if occasion should require, the expected occasion did not happen, and your preparation to defraud creditors was therefore unnecessary.”</p>

<p>On bill for relief. On motion to strike out parts of bill.</p>

On 'bill for specific performance of contract for sale of land. Heard on bill, answer and proofs. The bill is filed by the vendor to compel the vendee to perform his contract. The vendee defends on the ground that the title offered is not marketable.

<p>1. Where petition is made for an absolute divorce on the ground of desertion, promptly upon the expiration of an alleged residence in the state for the necessary two years, and where the desertion commenced while the applicant was a resident of a state whose laws do not grant an absolute divorce on that ground, a presumption is established against the existence of that sort of a residence necessary to give jurisdiction of the matrimonial status of the complainant.</p> <p>2. The presumption that the residence has not been maintained animo manendi may be overthrown by an affirmative showing, either that the petitioner did not in fact move into the state for the purpose of securing a divorce after two years, or, if that was the motive, that there was also the further purpose of making the state a permanent residence, regardless of the outcome’of the divorce proceedings.</p> <p>3. The presumption that the residence has not been maintained ammo manendi cannot be removed by the petitioner’s uncorroborated testimony as to her motives, and a petitioner, whose testimony on that point was' ■practically unsupported and consisted largely of conclusions of law, with no cross-examination, and where some of the answers indicated a mental reservation, did not prove such a residence as to give the court jurisdiction.</p>

<p>1. A petition was presented to an orphans court by one who claimed that he had deposited a sum of money with a person, since deceased, to secure him against liability upon a bond given by him- at petitioner’s request to a creditor of petitioner, as collateral to obligations given to such creditor by petitioner. It recited that the obligations had been paid and that petitioner was in possession of the bond of deceased, and was ready to surrender it to the administrator of deceased appointed by the surrogate of the county.</p> <p>2. The prayer was for a decree ordering the administrator to pay to petitioner $2,000 and interest thereon, and such a decree was made.— Held, that assuming the truth of the statements in the petition, and that the transaction between petitioner and the deceased' had created a trust, the orphans court had no jurisdiction to establish the trust and decree its performance by the administrator.</p>

<p>On appeal from the Essex county orphans court.</p>

<p>On appeal from a decree of the- Essex county orphans court admitting to- probate a paper-writing as the last will and testament of Anna B. Ward, deceased.</p>

<p>On appeal from a decree of the Cumberland county orphans court, made March 31st, 1902, appointing Howard Carrow administrator of the estate of Eva Russell, deceased.</p>

<p>A testator, by his will, devised and bequeathed to six of his children, by name, all the residue of his estate expressly excluding one child, who had been previously provided for. A child was born to testator after-wards, and there was no provision in the will disinheriting an after-born child. The executors of the will paid to the guardian of one of the children his share of the residuum. The ward died while under age and without issue. The guardian having settled his account in the orphans court, was directed by that court to pay the amount remaining in his hands to seven of testator’s children, including among them the child excluded by the provisions of the residuary clause, and the after-born child. The appeal from the order of distribution did not question the jurisdiction of the orphans court to make the order, but only claimed that it was erroneous in including in its terms the excluded child and the after-born child.—Held, (1) that the order cannot be supported on-the ground that the distributees were the heirs-at-law and next of kin of the deceased infant, because, by the residuary clause, the interest of the infant, who died an infant and without issue, was thereby divested, and became vested in the survivors of the children therein named; (2) that the order was erroneous in including the child who had been excluded by the residuary disposition, on the ground that she was not, on a proper construction of that clause, one of the survivors intended.by testator; (3) that the order was also erroneous in including the after-born child, on the ground that it must be presumed that she received her share of the testator’s estate under the statute, before the executors distributed and paid over the shares of the other children.</p>

<p>A testatrix, having three daughters, left the bulk of her estate to two of them, bequeathing to the other only $1. The daughter thus discriminated against filed a caveat against probate, and contended that the will was the product of the undue influence of one of her sisters, who resided with the mother. It appeared that testatrix had imbibed a strong prejudice against the caveator, by reason of an' inference drawn by her in respect to caveator’s conduct, which inference was probably unjustified, but was not unnatural, under the circumstances known to testatrix.-—■ Held, that a case of undue influence, by false statements or suggestions on the part of the daughter who lived with testatrix, was not made out by mere proof that she acquiesced in her mother’s view, without‘proof that she knew, or at least, had reason to believe, that her mother’s prejudice was unwarranted by the facts.</p>

<p>Note.—The following- opinions of November Term, 1901, were inadvertently omitted from their proper place in Volume XVIII.—Rep.</p>

<p>. On appeal from a decree advised by Vice-Chancellor Stevens, whose opinion is reported in 16 Dick. Ch. Rep. P70.</p>

<p>On. appeal from an order sustaining a demurrer advised by Vice-Chancellor Emery, whose opinion is reported in 16 Dick. Ch. Rep. 446.</p>

On appeal of the Prentiss Tool and Supply Company from an order of the chancellor, advised by Vice-Chancellor Grey (whose opinion is reported in 17 Dick. Ch. Rep. 307), affirming the determination of the receiver of the defendant, dismissing their petition, praying the receiver to consider and adjudge the petitioner’s claim to be a mechanics’ lien claim and to be prior and preferred to the claim of the common creditors of the defendant.

<p>1. When an administrator has neglected to make a final settlement of his account within one year after the granting of letters of administration, any creditor of the estate, whose debt or demand is barred by a decree of the orphans court, may present a petition for relief to that court, pursuant to section 80 of the Orphans Court act (P. L. of 1898 p. 743) ; thereupon it becomes the duty of the court to investigate the circumstances of the case and the condition of the estate, and if it be made to appear that such delay was unreasonable and without sufficient cause, the court may, by decree, give the creditor relief against any assets in the hands of the administrator, in the way provided by the statute.</p> <p>2. And when such petitioning creditor has brought himself within the terms of said section of the Orphans Court act, he may lawfully file exceptions to the final account of the administrator, which, if established, would enhance the amount of assets in the hands of such officer.</p> <p>3. As against the right of the petitioner to the relief thus established, the administrator cannot crave allowance for moneys paid to liquidate the claim of another creditor, that was also barred by the decree. While, under section 68 of the Orphans Court act, the court or surrogate is enjoined to allow to the accountant for the payment of all lawful claims presented within the time limited by the rule to bar, if there be sufficient of the estate to pay such debts of equal degree in full, the administrator cannot, before final settlement, to the detriment of such petitioning creditor, pay the claim of a creditor barred by such decree, without the order or direction of the court.</p>

Wilkins and Lydia Ann Wilkins, his wifé, to Theodore L. Christopher, and payable in one year. The bill charges that no interest has been paid since March 25th, 1890, and prays for an accounting and sale of the property. The answer of Lydia Ann Wilkins, the mortgagor, admits the execution of the mortgage, but says that no interest has been paid upon the said mortgage nor has the debt been acknowledged.

<p>On appeal from a decree advised by Vice-Ordinary Reed in the prerogative court, whose opinion is reported in 52 Atl. Rep. 225.</p>

<p>On appeal from an order advised by Vice-Chancellor Stevens, whose opinion is reported in 51 Atl. Rep. 925.</p>

<p>On appeal from a decree, advised by Vice-Chancellor Pitney, whose opinion is reported in 51 Atl. Rep. 485.</p>

<p>On application for a rehearing of an appeal from a decree advised by Vice-Chancellor Pitney.</p>

<p>On appeal from a decree advised by Vice-Chancellor Eeed, whose opinion is reported in 51 Atl. Rep. 1110.</p>

<p>On appeal from an order advised by Yice-Ohancellor Grey, whose opinion is reported in 16 Dick. Ch. Rep. 226.</p>

Ellis, Sr., had an only child, William H. Ellis, 2d, who married a Miss Gallagher, and had by her one child, William H. Ellis, 3d, the infant complainant herein. The father of the complainant was the only child of the testator, and seems to have been a person of irregular habits, and did not long cohabit with his wife, but the result of the marriage was the birth of the complainant on March 7th, 1897, and at the time of the hearing he was four years old.

<p>On bill to reform a deed and for other purposes.</p>

<p>A testator, by his will, created a trust fund for the benefit of a son, to whom a life interest therein was given, and empowered the trustees thereof to advance and pay over to such son, in his lifetime, out of said fund, any sum, not exceeding $100,000, at their discretion; and further empowered such son, by his will, made under certain circumstances, to dispose of $150,000 out of said fund to any person he might see fit. The trustees advanced to said son from said fund an amount less than $100,-000. The son died under circumstances which rendered applicable the power conferred on him to dispose of $150,000 out of the fund by his will. —Held, that upon the true construction of the will of the father, the son’s power of disposition was not diminished by the amount previously advanced to him, but extended to the whole amount of the fund remaining in the trust after such advancement, if the same was less than $150,000.</p>

<p>1. A widow who buried the remains of her deceased husband in a burial plot belonging to Ms sister, with the consent of the latter, and who- prepared the grave for the reception of her own remains after death with like consent, knowing that the said plot was so occupied that no consent would be given for other interments therein, is not entitled to- require the owner of the plot to permit her to remove the remains merely because his children by a former wife (also buried therein) and his children by her cannot be buried, there.</p> <p>2. The fact that the sister, the owner of the plot, refuses- to consent to the removal of her brother’s remains from said plot for- the purpose of burying the same in a plot belonging to the widow, and also refuses to consent to the removal of the remains of the first wife of the deceased for the purpose of burying the same in the plot of the second wife, now his widow, raises no equity justifying a decree requiring her to give such consent in either case.</p> <p>3. The right of the widow, in respect to access or care or adornment of 'the grave of her deceased husband, is not involved in or decided in the present case, and the dismissal of the bill is without prejudice to her seeking relief hereafter if her rights in those respects, if any, shall be interfered with.</p>

<p>1. Under a devise to which the provisions of section 10 of the Descent act (Gen. Stat. p. 1193) apply, while an estate in the lands devised vests in any child of the devisee for life, it is an estate which will be devested by the death of such child, leaving issue, during the life of the devisee for life.</p> <p>2. A title made by a conveyance executed during the life of the devisee for life, from a child having a vested estate under the provisions of that section, being subject to■ be devested in the event of the death of such child leaving issue, during the life of' the devisee for life, is not a marketable title which a purchaser oitght to be compelled to take by a decree for specific performance.</p>

The complainant is the receiver of the Colonial Clock Company, an insolvent corporation of this state, and files his bill for directions as to- the disposition of certain 'funds in his hands, the proceeds of the sale of certain real estate belonging to the corporation.

On order to show cause. Heard on bill and affidavits, and the joint and several answer of the several defendants and affidavits.

On bill for partition and incidental relief. This is a bill for partition and incidental relief by way of subrogation to a mortgage on the premises.

<p>1. In a suit by bondholders of a corporation to foreclose a mortgage securing the bonds, evidence held to establish that the bonds were issued for cash which actually came into the possession of the corporation, or for goods which the corporation actually received, and therefore were valid obligations.</p> <p>2. Where a mortgage by a corporation was duly executed and recorded before a judgment was obtained by a creditor under which the mortgaged property was sold, and the corporation bad the full benefit of the bonds which the mortgage was given to secure, the fact that the directors of the corporation, who were substantially the sole owners of its property, held the meeting at which the mortgage was authorized in another state, which fact did not appear from the mortgage, did not render it void as to such judgment creditor.</p> <p>3. Where the trustee in a mortgage by a corporation given to secure bonds declined to sue to foreclose, except on unjustifiable terms, a single bondholder or several combined are entitled to maintain the suit in his or their own name or names, though the mortgage provides that the suit shall be brought by the trustee.</p>

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

On bill, cross-bill, answers and replications, and on appeals from determination of receiver allowing claims. Heard together on pleadings and proofs taken orally.

<p>1. Testator devised the residue of his realty to four devisees, in equal shares, naming three of them as executors, and directing them to sell “all or any part” of such realty and divide the proceeds among the devisees. No sale was had, but a partition was effected by an exchange of conveyances, the deed to the share of one devisee being made by the executors to her husband.—Held, that the husband did not take an absolute title, on the theory of equitable conversion and reduction of the property to possession as personalty, as the discretionary character of the power of sale given the executors precluded equitable conversion.</p> <p>2. Even had there been an equitable conversion, the partition amounted to a reconversion.</p> <p>3. The conveyances made by the husband and wife, forming the consideration of that by the executors to the husband, and absolute title in the husband being inconsistent with the legal obligations of the parties, and recitals in a prior partition conveyance and in a chancery suit between the parties declaring that the husband took in right of his wife, a trust in the husband resulted to the wife and her heirs, subject to his tenancy by the curtesy.</p> <p>4. A purchaser from a husband of land conveyed to the husband by the executors of his father-in-law in consideration of $1 and. conveyances by the wife, the husband joining—the whole transaction constituting an exchange of conveyances to effect a partition of a devise to the executors and wife as tenants in common—is put on inquiry, by the recited consideration and notice that the husband’s actual interest as tenant by the curtesy was derived from the father-in-law, as to a trust resulting to the wife in the land, conveyed to him.</p> <p>5. A partition of lands between tenants in common under a will was effected by an exchange of conveyances, the deed to one tenant’s share being made to her husband. A prior chancery suit had been instituted by the husband and wife against the other tenants, who were also executors, the bill praying for a recovery of the wife’s interest in the devise. A receiver was appointed to lease, collect the rents and divide the property, and the partition conveyance to the husband was acknowledged before the receiver. The suit was still pending by receiver in behalf of the wife’s infant heirs at the time of a sale by the husband.—Held, to be notice to the purchaser that the husband’s interest arose under the will; that he had received the land in right of his wife, and that her heirs had succeeded to her interest; and this notwithstanding a ten years’ delay by the husband in prosecuting the suit.</p> <p>' 6. A recital in a deed executed by a trustee, in derogation of his trust, of the payment of the purchase-money, is not sufficient evidence of payment in behalf of the grantee’s heirs, as against the cestui que trust.</p> <p>7. In effecting partition of lands held in common one tenant conveyed by warranty deed to the husband of the other, and afterwards purchased the interest of the wife’s heirs. In an action at law by such tenant against the husband’s grantee estoppel by the tenant’s warranty was pleaded, and decided adversely to defendant, judgment being given the tenant for a one-third interest, and he being remitted to equity for further relief.—Held, in the equitable suit thereupon instituted, that the judgment was res judicata, on the issue of estoppel.</p> <p>S. A grantor by warranty deed of lands impressed in the grantee’s hands with a resulting trust is not estopped by his warranty from acquiring the interest of the cestui que trust.</p> <p>9. On December 27th, 1838, a deed was made to a husband of realty impressed in his hands with- a resulting trust in favor of his wife. The wife died in 1841. On May 4th, 1848, the husband conveyed. The wife’s infant heirs came of age and conveyed their interests by deeds executed between February, 1855, and September, 1862. The husband died May 29th, 1884. In November, 1892, parties claiming under the wife’s heirs brought ejectment against parties claiming under the husband’s grantee, setting up an entire legal title to all the realty. They recovered a one-third interest, it being adjudged that, as to the balance, they had no title at law. On January 18th, 1895, suit was begun by them in- equity.—Held, that the latter suit was not barred, the statute of limitations not beginning to run against the wife’s heirs till the accrual to them of a right of entry on the husband’s death, and the action at law being to enforce the same rights as the suit in equity. -</p>

<p>1. As a defence to an application by a receiver for an order authorizing an assessment on stockholders for unpaid subscriptions, the stockholders cannot set up the fact that the company never became a corporation de jure, or that the company never became a corporation de facto, or that the agreement to incorporate was abandoned1 and the subscriptions were canceled1 by the subscribers.</p> <p>2. Where insolvency proceedings have been instituted against a company and a receiver appointed, the final ascertainment in such proceedings of the amount of debts- owing by the company must be taken as final, and cannot be questioned in proceedings by the receiver for an order to authorize an assessment on stockholders or persons claimed1 to be such.</p> <p>3. When a receiver of an insolvent company shows, in proceedings for an order authorizing an assessment against delinquent subscribers to stock, a case which entitles him to test by suit the status of persons supposed to-be stockholders, but who allege that they are not, the court should direct the assessment, and leave the liability of the individual subscribers to be tested by suit, if necessary.</p> <p>4. Where the receiver of an insolvent company has no assets for the prosecution- of a disputed claim, and the stockholders of the company have not asserted the validity of the claim and- indemnified him against the expenses of a suit, he cannot be required to bring suit thereon before the court will be authorized to order an assessment on the stockholders.</p>

<p>1. The stockholders of a corporation cannot intervene, in an insolvency suit against it, to interpose defences that the corporation itself cannot set up.</p> <p>2. AYhile the stockholders of a corporation cannot interpose any defences to an insolvency suit against it that the corporation itself cannot set up, they can have the validity of matters alleged as a defence to their liability as stockholders adjudicated in suits brought by the receiver to collect assessments levied against them.</p> <p>3. When a corporation has been decreed insolvent and a receiver appointed, interest on the corporation’s debt should be included in an assessment against the stockholders.</p> <p>4. A receiver of an insolvent corporation is entitled to have expenses incurred in suits brought pursuant to 'the court’s order included in an assessment against the stockholders, even though the costs paid in such suits went to persons to b? assessed as stockholders.</p> <p>5. The receiver of an insolvent corporation is entitled to have an allowance for his fees and those of his counsel included in an assessment against the stockholders.</p>

<p>1. Where the charter of a local voluntary society has been revoked by its superior general body, no court will, in the absence of a question of property right, exercise jurisdiction in the matter until the remedies by an appeal within the society have been exhausted.</p> <p>2. The rights of membership evidenced by a charter granted, to a local voluntary society by the general body are not, in any sense, themselves property rights.</p> <p>3. The rules and regulations as to membership in a voluntary association do not, in any proper sense, confer a property right.</p> <p>4. If a general voluntary association refuses to continue association with a local association, both being unincorporated, a court of equity cannot, in the absence of any question of property right, enforce the continuance of the relation voluntarily assumed.</p> <p>5. Where one of the alleged objects of a voluntary musical association was to secure, so far as practicable, the control of the employment of musicians within- the respective districts of the local societies, and the exclusion from such employment of those not members, the courts will not interfere to compel the continuance of association of the societies, or of membership therein, the object of which is an- unjustifiable interference with the freedom of contract and of trade.</p>

<p>On bill and plea to jurisdiction.</p>

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

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

<p>1. Construction of the provisions of “An act for winding up voluntary associations and associations with partnership liabilities” (P. L. of 1899 p. 485), respecting the constitutionality of the act, who can file a bill or petition thereunder, and the questions to be decided when an answer is filed by a listed member of the association.</p> <p>2. A grange was organized for the primary purpose of establishing a store where general merchandise should be sold and exchanged for the benefit of its members. The business was conducted by a superintendent, under his name. The executive functions of the grange were in the hands of three trustees. Several notes signed by the trustees had been given in the course of its business, interest being paid out of the funds of the association. The association became insolvent, and creditors holding notes filed a bill.-—Held, that the court had jurisdiction to appoint a receiver and grant an injunction.</p> <p>3. The grange became incorporated under the act of 1876 (Gen. Stat. p. 1644), for the incorporation of granges, but there was no1 effort to become incorporated under any other statute.'—Held, that it did not become a corporation de facto for the purpose of transacting mercantile business.</p>

<p>1. Where a mortgage is given a firm, and thereafter one of the members retires, the new firm, although pursuing the same business and under the same name, cannot enforce the obligation unless the right to enforce it is acquired by a new contract.</p> <p>2. Where, after the dissolution of a firm, an account with it is carried on as a running account with the succeeding firm, payments made to the succeeding firm, unless appropriated, will go to discharge the oldest items of the account.</p>

<p>On bill to quiet title.</p>

<p>1. When proceedings are taken by a trolley company, under section 32 of the laws of 1903, to have its mode of crossing a railroad defined, the railroad company may challenge the right of the trolley company to lay its tracks at the place of crossing; and where it is incorporated as an extension of another road, its legality is dependent upon the legal existence of the older trolley road.</p> <p>2. By act of 1896 (P. L. of 1896 p. 329) no trolley can be laid upon any highway in. a township without the consent of the township committee, and such consent cannot be granted until there shall have been filed with the township clerk the consent, in writing, of the owners of at least one-half in amount, in lineal feet, of property fronting on the highway, which consents shall be executed and acknowledged as are deeds entitled to be recorded.—Held, that consents not sealed were insufficient to confer power upon the committee to grant the statutory permission. - j</p> <p>3. Where an ordinance purporting to give such consent was., upon certiorari prosecuted by the railroad company, held to be valid, but the reasons which were assigned for its vacation an'd which were passed upon by the court did not include the want of sealed consents by abutters— Held, that the railroad company is not estopped in this proceeding from attacking the ordinance upon this ground.</p>

<p>1. A contract of sale to a corporation of shares of its stock by a director present at the meeting of the board at which the sale was sanctioned is not binding as a valid obligation. But if the stock be retained or its value changed by action of the company so that it cannot be tendered back, though in the same condition, the company will be obliged to pay what it was reasonably worth.</p> <p>2. A board of directors, the majority of which were the members of the board which authorized the illegal contract, cannot ratify it.</p> <p>3. Silence of the stockholders of a corporation for two years, with knowledge of the illegal contract, is not a ratification thereof.</p>

<p>A subpoena to answer was served upon, the vice-president of the defendant company while casually in the state on. private business.—Held, that such service would not be set aside on motion.</p>

<p>S. conveyed to a railroad company a strip of land running through his farm. In the deed the company stipulated as follows: “The said party of the second part doth for itself and its successors agree to make and maintain the necessary fences on both sides of said tract of land, which shall be built before the work of grading on said track is commenced, and shall provide the party of the first part with a suitable and convenient road crossing across the track of said railway where the party of the first part may direct.” A crossing at grade was provided in the manner stipnlated. The successor of the company subsequently raised the tracks and constructed an embankment fifteen and one-half feet high without bridging the crossing and thus wholly destroyed it.—-Held, (1) that the above-quoted stipulation enured to the benefit of the heirs of the grantor; (2) that the way having been once located could only be changed by mutual consent and that the company must construct and maintain the crossing at the original level; (3) that complainant has not been, guilty of laches in applying for relief (New York City v. Pine, 185 U. S. 93, distinguished) ; (4) the right of crossing given or reserved by the deed is an unlimited right enuring to the benefit of any grantee of the whole or any part of the land retained.</p>

<p>1. Equity will not compel specific performance of a married woman’s agreement to convey land, if sucli agreement be not acknowledged, whether performance be sought against the married woman herself or against her grantee with notice.</p> <p>2. A married woman’s executed and acknowledged deed, while it remains undelivered in the hands of her attorney, is not an acknowledged agreement within the meaning of the act of 1898 respecting conveyances.</p> <p>3. An acknowledged, but undelivered deed, if it can be regarded in the light of a memorandum or note of a prior unacknowledged agreement, does not come within the provisions of section 39 of the above act.</p>

<p>An insolvent debtor permitted his infant son who lived with him to contract for wages to be paid to the son.—Held, that the stock of a corporation into which the wages were afterwards converted and which stood in the name of the son, is not subject to the claims of his father’s creditors.</p>

On appeal of the Prentiss Tool and Supply Company, a preferred creditor, from the determination of the receiver allowing the claim of William Hurt, trading as S. C. Hurt & Son, as a preferred creditor.

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

On bill, answer, replication and proofs. Tbe bill in this case is filed to compel the specific performance of an agreement alleged by the complainant to have béen made by the defendant company for the lease, under special terms, of a lot of land situate in Atlantic City.

<p>On bill and affidavits, answer and affidavits and order to show cause for injunction, &c.</p>

<p>On bill, &c., and second petition that certain defendants be adjudged in contempt.</p>

On bill for interpleader, answers and proofs. This is an interpleader bill filed by Ida L. Kreutz, an owner, who has procured a building to be erected for her under contract, &e., filed in the county clerk’s office. The defendants are the contractor, one Goings, and the creditors of the contractor, who have given notices to the owner to retain the amount of their several claims from the contract price, under the Mechanics’ Lien act.

On bill to foreclose, and answers and proofs. The bill in this case is filed by the complainant, Thomas Harron, the assignee of a mortgage made on February 3d, 1890, by Jonathan T. Adams and wife to John A. English, to secure the payment of $5,500, with interest, in three years from date, upon a lot of land fronting on Central avenue, in 'Ocean City, New Jerse3r, on which is located the Hotel Lafayette, and upon other vacant lots in Ocean City located on Wesley avenue and…

On bill for injunction, answer and affidavits. Tlie bill is filed to restrain the township of Waterford, in the county of Camden, and the members of its township committee, from hindering the complainant in the erection of an overhead crossing to carry a public, highway, at Franklin avenue, near West Berlin, in said township, across the Oamden and Atlantic' railroad, owned and operated by the complainant company.

<p>' On motion for injunction on order to show cause. Heard on bill, affidavits and answering affidavits.</p> <p>The bill is filed by the complainants as stockholders of the Prudential Insurance Company of America, hereinafter termed the Prudential company, on behalf of themselves and all other stockholders who may come into the suit, and it sets forth the following ease;</p> <p>The Prudential company is a corporation under the laws of New Jersey, located in the city of Newark, originally incorporated under the name of the Widows’ and Orphans’’ Friendly Society by a special act, approved April 3d, 1873. The objects and purposes stated in the act were</p> <p>“to assist sick, needy or disabled members, to aid in defraying the funeral expenses of deceased members and to provide for th-e wants of widows and families of members after death.”</p> <p>By a supplement to the charter, approved February 18th, 1875, the corporation was granted the power</p> <p>“to receive deposits of money or other valuables upon such terms as may be agreed upon, or to make contracts with its members for the purchase and erection of dwellings, and to provide a fund to be paid either before or after death for such purposes and in- such manner as may be designated by its members.”</p> <p>The capital stock was originally fixed at $25,000, with the privilege of increasing it to $100,000, and each share, which is of the par value of $50, is made personal property. In pursuance of appropriate legislation, the name of the corporation was changed twice, the last change being to- the form above stated, and the number of the directors was left to be prescribed by the bylaws, such number, however, not to be less than nine. The number has been fixed at fourteen. The directors are to hold for one year from election and until their successors are chosen. The stock of the company was, pursuant to law, from time to time, increased. The last increase was effected on January 6th, 1893, and made the capital $2,000,000. The original charter provides that</p> <p>“each stockholder shall be entitled to- one vote for each share of stock by him held and every- member of the corporation, though not a stockholder, shall be entitled to one vote,”</p> <p>and further provides (section 10) that</p> <p>“all persons making contracts with said corporation for any of its objects or purposes, shall become and be members of said corporation, subject, however, to all lawful by-laws, rules and- regulations which may be made or prescribed by said directors.”</p> <p>The directors are given</p> <p>“full power to make by-laws, rules and regulations not inconsistent with the constitution and laws of the United States or of the state of New Jersey.”</p> <p>By act of March 3d, 1880 (P. L. of 1880 p. 84; Gen. Stat. p. 1757 § 81), the policy-holders of the Prudential company were deprived of the right to vote for directors. The applicability of this act to the Prudential company and its validity as against these complainants has not been questioned—-has in fact been conceded by all parties in this case.</p> <p>Under the provisions above cited the company embarked in a life insurance business which seems to he admitted to be its only business at the present time, if, indeed, it ever actually engaged in any other. It is not questioned that the corporate objects of the Prudential company involve gain to the stockholders, and, in fact, large dividends have been made to the stockholders out of profits for a number of years.</p> <p>The complainant Robotham is the owner in his own right of six hundred shares of the capital stock of the Prudential company, and has been a stockholder continuously since November, 1875. The complainant Illingworth is the owner in his own right of three hundred shares of stock, which he has owned continuously for three or four years last past. The par value of these nine hundred shares is $45,000, but the market value is about $350,000.</p> <p>The defendant the Fidelity Trust Company, hereinafter termed the Fidelity company, is also a corporation under the laws of New Jersey, located in the city of Newark. It does business as an ordinary bank of deposit, conducts a savings department and a department for guaranteeing titles to real estate, carries on a safe deposit business and executes trusts of various kinds, holding at present over $9,000,000 of trust funds.</p> <p>The capital of the Fidelity company has, from time to time, been largely increased, until it now stands at the sum of $1,-500,000. The board of directors of the Fidelity company consists at the present time of eighteen members, seven of whom are also directors of the Prudential company, and constitute, therefore, one-half of the board of the latter company.</p> <p>The life insurance business of the Prudential company has rapidly increased through a series of years. The total assets of the company are now nearly $60,000,000. The total assets of. the Fidelity company are now over $14,000,000, while its surplus and undivided profits amount to over $3,700,000. The transactions of both companies, in their respective lines, are of great magnitude. The policy-holders of the Prudential company number over four and a half million, and are alleged to be scattered widely throughout many states.</p> <p>The business relations between the Prudential company and the Fidelity company for some time past have been intimate and apparently profitable to both companies. The Prudential company has acquired a substantial stock interest in the Fidelity company, and has also maintained large deposits with that company. The directors who have successfully managed and now control this insurance company áre men of recognized ability and unquestioned integrity—men who take pride in the great institution which they have built up. While the qualification of these directors to do some of the proposed acts under investigation in this case is questioned on the ground that they are not interested, this charge is made with the concession that they are not intending to do anything which they do not honestly and sincerely believe to be advantageous to the policy-holders and stockholders of their company..</p> <p>The transactions which are subjected to judicial scrutiny in this case may be outlined as follows: The capital stock of the Prudential company now consists of forty thousand shares of $50 each par value. The Prudential directors apparently hold or control a majority of these shares, and thus, in the usual way, may secure their own election from year to year, and appoint a successor when a vacancy occurs by death. There are at present ninety-one different stockholders. The president of the Prudential company, in his affidavit, states as follows:</p> <p>“A considerable amount of the stock is still held in Jarge blocks by persons who are getting well on in life, so that in the comparatively near future it will inevitably result that said stock will become far more scattered than it is at present.</p> <p>“It was with these conditions in mind and with a full realization on the part of the principal stockholders of the insurance company of the vital importance of safeguarding the interests of over four and one-half million of its policy-holders, that the stockholders of the insurance company set about the consideration of some plan that would accomplish this result, conserve the interests of the stockholders as well and put the assets of the company forever beyond the reach of reckless speculators, who, when the stock has become scattered, might acquire it even at fancy prices for the purpose of manipulating- its assets, as has been the case in the past in many instances known to all insurance men.</p> <p>“The plan adopted by the majority of the stockholders of the insurance company was to negotiate a sale to the Fidelity Trust Company of a controlling interest in the shares of the insurance company; that company to double its present capital of $1,500,000' and put out the new stock at $750 per share.”</p> <p>Tlie president’s affidavit further sets forth that</p> <p>“concurrently with the plan of the trust company to acquire a controlling interest in the stock of the insurance company, the principal stockholders of the insurance company consider it highly desirable that the insurance company shall acquire a like interest in stock of the trust company, and, at our instance, the directors of the trust company have made such contracts with their stockholders that they can tender to the insurance company, at $750 per share, a sufficient number of shares of the new issue to give the insurance company, with their present holdings, such control.”</p> <p>'There is no dispute about the general nature of any essential details of the scheme for the permanent control of the affairs of the Prudential company which its “principal stockholders” have formed and which its directors have proposed to carry into effect by the exercise of their fiduciary powers.</p> <p>The- Fidelity company has already entered into a written contract with stockholders of the Prudential company by which these stockholders agree to sell enough of their holdings of Prudential stock, at $600 for every $100 of par value, to give the Fidelity- company one share- more than one-half of the total outstanding Prudential capital stock. There is no favoritism or discrimination among the stockholders of the Prudential company with respect to this contract—each stockholder is permitted to sell one-half of his holdings at the price above stated, and those who sign aggee to contribute, pro rata, enough stock to make up any shortage which may arise by reason of the failure or refusal of any of the Prudential stockholders to sign the agreement. The Fidelity company, in pursuance of the plan, having doubled its present capital, will give the new stock to subscribers at $750 per share, thus realizing $11,350,000, which will leave the Fidelity company with a capital of $3,000,000, and a surplus of $13,000,000, and a considerable amount of undivided profits in addition. Of this new stock of the Fidelity company the Prudential directors propose to take, for their company, enough of the new shares, at $750 per share, to give their company, with its present holdings, a majority of the capital stock of the Fidelity company as the same will stand after the increase has been effected. How much Fidelity stock the Prudential company now holds is not disclosed, but the president of the Prudential company states in his affidavit that such holding is large, but less than one-third of the total amount. The acquisition of a majority of the Fidelity stock, as increased, will therefore involve the expenditure by the Prudential company of over $7,500,000. The book value of the Fidelity stock at present is a little less than $350 per share of $100 each. The result of the above agreement will be to give the Prudential company the absolute power to appoint the directors of the Fidelity company, and to give to the Fidelity company absolute power to appoint the directors of the Prudential company. Inasmuch as such an arrangement practically places the corporation whose election of directors comes first within the absolute control of the directors of the other corporation, the president of the Prudential company announces that</p> <p>“the annual meetings of the two companies will be so arranged and other arrangements will be so made that the Prudential Company will forever be the dominant factor as, of course, it should be.”</p> <p>The Fidelity company, during the past year, has paid dividends to its stockholders at the rate of $16 on each $100 of par value. The Prudential companj'- has uniformly paid annual dividends during recent years at the rate of $10 on each $100 of par value, and has never paid a higher rate of dividends during its existence, and has no present intention to increase the dividends in the future.</p> <p>Although the above plan has been formed and is approved by the directors of both of these companies, the only complaint in this case is on the part of stockholders of the Prudential company. The bill prays for discovery against both corporations, and prays that the Prudential company and its officers and directors may be enjoined, among other things, from voting in favor of the proposed increase of the capital stock of the Fidelity company, and from subscribing for or purchasing any shares of such increased capital, and that the Fidelity company may be enjoined from receiving the vote of the Prudential company in favor of said increase of stock.</p> <p>The defendants consist of the two corporations and the directors of the Prudential company.</p>

<p>The probate of a will, contested on the grounds of lack of testamentary capacity in the testatrix and of undue influence, sustained.</p>

On appeals from a decree advised by Vice-Chancellor Eeed, whose opinion is reported in 15 Dick. Ch. Rep. 211. On June 24th, 1896, George Pfeiffer, Jr., entered into an agreement with the city of Camden, a municipal corporation, for extending and improving its water-supply. A supplemental agreement between the parties was added November 7th, 1896. Pfeiffer was to receive $561,500 for all his work. Pfeiffer claims to have completed the work.

It is to be observed that the moneys came to the respondent by the terms of a settlement, and that this settlement included not merely a release by the petitioner of all her rights in the judgments obtained in Hew York, but of all rights, past and future, under the decree made by this court.

<p>By the true construction of sections 3 and 4 of the Evidence act, as revised in 1900, a party to a suit is a competent witness, notwithstanding that either, or loth, of the parties appear on the record in a representative capacity, but, when that is the case, a party offering himself as a witness will not be permitted to testify concerning any transaction with, or statement by, the decedent of his adversary, unless his adversary first offers himself as a witness and testifies to a transaction with, or statement by, such decedent.</p>

<p>On appeal of William R. Whyte, the Union Stone Company and the Commonwealth Roofing Company from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 17 Dick. Ch. Rep. 489.</p>

<p>On appeal from a decree advised by Yice-Chancellor Reed, whose opinion is reported in 18 Dick. Ch. Rep. 93.</p>

On apjieal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 18 Dick. Ch. Rep. 391.

Ch. Rep. 339. Thomas B. Watford died testate October 27th, 1899. His will was duly probated. After making certain bequests, he devised as follows: “All the rest, residue and remainder of my estate, real and personal, whatsoever and wheresoever found, I give and bequeath unto my executors hereinafter named and their successors in trust, for the purchase of books upon the Philosophy of Spiritualism, not sectarian, or of any creed, Church or Dogma, but of free, liberal bearing.

On appeal of Karl H. Steitz and other infant defendants. On appeal from a decree advised by Vice-Chancellor Reed, who filed .the following conclusions: The single question is whether the children of William Steitz are entitled to the one-half of the proceeds resulting from the sale of the property made in this suit. August Steitz, who died seized of this land, was a brother of William.

<p>On appeal from a decree advised by Yice-Chancellor Reed, whose opinion is reported in 50 Atl. Rep. 657.</p>

<p>On appeal from a decree advised by Vice-Ordinary Reed, whose opinion is reported in 18 Dick. Ch. Rep. 233.</p>

<p>On appeal of William Hurt, filed June 6th, 1902, from an order advised by Vice-Chancellor Grey, whose opinion is reported on page 622, ante.</p>

<p>On appeal from a decree advised by Vice-Chancellor Stevenson, whose opinion is reported in 18 Dick. Ch. Rep. 179.</p>

<p>On appeal from a decree advised by Vice-Chancellor Stevens, whose opinion is reported in 18 Dick. Ch. Rep. 111.</p>

<p>On appeal from a decree advised by Vice-Chancellor Stevens, whose opinion is reported in 17 Dick. Ch. Rep. 209.</p>

<p>On appeal from a decree advised by Yice-Chancellor Stevenson, whose opinion is reported in 17 Dick. Ch. Rep. 697.</p>

<p>On appeal from a decree advised by Vice-Chancellor Grey, whose opinion is reported in 17 Dick. Ch. Rep. 177.</p>

Wilson, deceased, was, by the orphans court of Mercer county, decreed to be insolvent. Under the authority of section 107 of the Orphans Court act (P. L. of 1898 p. 755) the court directed the executors of Samuel K. Wilson to make sale of certain property of the estate.

<p>On appeal from an order of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 19 Dick. Ch. Rep. 90.</p>