Volume 65 — New Jersey Equity Reports

<p>On plea of Mary A. Gaddis.</p>

<p>1. A bill seeking relief against a judgment at law on the ground that the complainants had a valid legal defence to that action, which they were prevented from presenting because the evidence on which such defence could be made was not discovered until after the trial and judgment, must not only show the relevancy or materiality of such evidence, but must also show that proper diligence had been used in the preparation for such trial, or that no diligence would have discovered such evidence, and it is demurrable if it fails to make such averments.</p> <p>2. Since the passage of the amendment to the Practice act, which permits application for a new trial at law after the term (Gen. Stat. p. B5S9), a court of equity will decline to exercise its jurisdiction in respect to new trials, when the relief sought may be obtained by an application to the court of law.</p>

<p>Inquiry is not shown to be within the purview of the fifty-third rule ■of this court, by the filing of solicitor’s affidavit that he has inquired of the complainant or petitioner, who furnished the description subsequently •delivered to the sheriff.</p>

On bill for relief respecting the trust arising under the will and codicils of Jacob S. Rogers, deceased, and for instructions and directions to the trustees thereof. The following extracts from said will and codeils show the trust in question: WiLL OF JACOB S. ROGERS. “Sixteenth.

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

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

On motion to dissolve injunction. Heard on bill and affidavits and exhibits annexed thereto, and answer and affidavits and exhibits annexed thereto. The bill, as originally framed and presented to the court, was filed by Lyman E. Warren, asrsole complainant, and an injunction was granted thereon. Wárren remained sole .complainant until the answer thereto had been prepared and was ready to be filed.

On bill of interpleader. Final hearing on issue made up .between the defendants, Kate Murphy and Mary J. Bauer. This is a suit of interpleader. The contest is over a sum of' $1,000, deposited in the court by the complainant as part— one-half — of the money due under a certificate called a benefit certificate issued by the complainant to John J. Murphy, the husband of the defendant ICate Murphy and the brother of the-defendant Mrs. Bauer.

<p>Attempts by members of a labor union to compel an employer to accede to the demands of the unión as to the mode of doing' his business by persuading or inducing others not to deal with him is unlawful, and will be enjoined.</p>

<p>Oil counter petition of defendant for custody of an infant.</p>

<p>1. The burden of proving that an agreement was induced by false representations is on the person who seeks a cancellation thereof.</p> <p>2. Under the statute, a married woman may be compelled to perform, as vendee, a contract for the conveyance of land, though she is declared not authorized to convey her real estate, and could not be compelled to perform as vendor.</p>

<p>The remainder interest in money bequeathed to testator’s wife for life, not otherwise disposed of, passes to her under a clause giving- to her the-residue and remainder of his estate.</p>

<p>1. Where a wife is justified in leaving her husband on acco.unt of his cruelty, the separation is legally chargeable to the husband, and constitutes a legal abandonment or desertion upon his part.</p> <p>2. Where a wife leaves her husband, and seeks to establish constructive desertion by him on account of cruelty, her testimony must be corroborated.</p> <p>3. After a separation caused by cruel conduct of a husband, it is his duty to reform his habits, and within two years seek out his wife and apply to restore tlie marital relations, giving her reasonable assurance of the sincerity of his reformation and of her probable safety in resuming the marital relations.</p> <p>4. If, at the time of offering to return to live with his wife, the husband was, in fact, living in adultery, or if he willingly permitted the wife to remain under the impression that he was guilty of adultery, the offer to return cannot be considered as one made in good faith, or to be an offer which the wife was bound to accept for the purpose of terminating the desertion.</p>

<p>On application of special guardian of infant for distribution of proceeds of sale of infant’s lands.</p>

<p>On. bill for tire construction of a will.</p>

<p>1. Where one who had acquired the equity of redemption to property covered by three separate mortgages paid the-amount of the first mortgage on the filing of a bill to foreclose that mortgage, and obtained a decree, by consent of the mortgagee, that the bond and mortgage be assigned to him, 'he thereby became subrogated to the rights of the mortgagee, and the mortgage was not satisfied.</p> <p>2. One who had acquired the equity of redemption to property covered by three separate mortgages redeemed the property on the filing of a bill to foreclose by the first mortgagee, and obtained a decree that the mortgage be assigned to him. Afterwards the second mortgagee brought foreclosure proceedings, making the first mortgagee and the assignee, as owner of the equity of redemption, defendants, and alleging that the first mortgage was paid, though uncancelled of record, and obtained a decree by default that the property be sold, and that the foreclosed mortgage and the subsequent one be paid, and the surplus brought into court. — Meld, that, as this decree did not adjudge that the first mortgage was paid, it did not conclude the assignee of that mortgage from bringing a subsequent suit to foreclose it.</p>

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

<p>1. In the case stated no consideration was paid for the cancellation of the mortgage. — Eeld, that, as against the heirs of the mortgagor, complainant was entitled to a decree for the re-establishment and foreclosure of the mortgage.</p> <p>2. Cases of plain mistake or misapprehension of right, though not the effect of fraud 'or contrivance, are entitled to the interposition of a court of equity where there has been no negligence on the part of the applicant.</p>

The following preliminary statement will disclose the.general features of the cause to be determined: On January 2d, 1896, and on November 18th, 1895, patents were allowed to Joseph Bennor for certain improvements in straight knitting jackets for making fashioned hosiery. On September 14th, 1894, Bennor conveyed a one-half interest in this invention to the Macon Knitting Company, the other complainant.

<p>. 1. Where a vendor sells off an estate in lots, with restrictions upon the use of the lots sold, he will lose his right in equity to enforce the restrictions against one grantee, if he has knowingly permitted other grantees to violate the same restrictions, the effect of which violation is to abrogate the purpose of the restriction and alter the general scheme intended to be conserved by it.</p> <p>2. Upon the facts established — Held, that the complainant has waived its right to equitable assistance.</p>

<p>The circumstances adduced in a suit to compel specific performance of a contract — Held, to support the positive testimony of complainant that the contract was signed, and to overcome the negative testimony of the defendants in their sworn answers to interrogatories.</p>

<p>1. On bill filed to restrain the violation 'of two restrictive covenants respecting the land in question — Held, that, as to one covenant, complainant had no right to enforce the covenant, as assignee of Mary Disston, by virtue of the existence of any plan. Held, also, that, as a subsequent grantee of Mary Dissten, the complainant cannot successfully assert a right to enforce the covenant, as there was no evidence of an intention that such a covenant was inserted for the benefit of complainant’s property.</p> <p>2. In respect to the other covenant referred to — Held, that the benefit of the stipulation contained in the deed of Mary Disston to a predecessor in the title of the defendant did not become attached to the Disston cottage, and did not pass to the purchaser of that land.</p>

<p>1. In a suit for an injunction to restrain defendant from discharging water into a tailrace, .running over complainant’s land, it appeared that the questions mooted were purely legal ones, and that an action at law was pending in which they could be determined, the injunction suit was retained until the questions at law were determined.</p> <p>2. In the meantime an injunction was granted restraining the discharge of the water to its full capacity, and an amendment to defendant’s answer was allowed, setting up the pendency of the action at law.</p>

<p>A benefit certificate provided that the member might, in writing, surrender all claim thereto and direct that a new certificate be issued to him, payable to the same or other beneficiary; * * * “the issuing of such new certificate shall cancel and render null and void any and all previous certificates issued to such member.” — Held, that the mere delivery of the original certificate to the member’s wife, who was the beneficiary named therein, did not enlarge her interest, such interest still continuing to be an expectancy dependent on the will of the member.- — Held, further, that payments made by her after such delivery did not enlarge her right, for they were made on a contract; one of whose terms was that it was .subject to change at the member’s will. — Held, further, that the wife was not entitled to have the premiums returned to her.</p>

On bill, answer and proofs, upon reopening of testimony. This cause was heretofore argued in eoctenso, and an opinion given on the whole case. See 17 Diclc. Gh. Rep. 62 On hearing that argument the vice-chancellor understood from counsel then present, that the complainant admitted that its mortgage had not been recorded as a chattel mortgage, and that it was ineffectual as a chattel mortgage against the claim of the creditors of the defendant Penn Cordage Company, mortgagor.

On bill for specific performance of contract. Answer and proofs. This bill is filed by tlie complainant vendor to compel the specific performance by the defendant vendee of an agreement for the purchase of a tract of land lying at the southwest corner of Atlantic and Presbyterian avenues, in Atlantic City.

<p>An alleged contract was made under the belief of the proposers that they owned and had power to sell the subject-matter of the contract. The acceptor of the proposal received and accepted it under that belief. In actual fact the proposers had neither title to the subject-matter of the sale, nor power to sell it. — Held, the parties were incapable of making an agreement for sale. No decree can be made to enforce the specific performance of such an attempted agreement.</p>

On bill, answer and proofs. The bill in this case is filed by Lovina S. Zane, the widow of Horatio G. Zane, who claims that under the last will of her mother, Rachel Ward, she either has title in fee to a lot of land situate at the northeast corner of William and Line streets, Camden, New Jersey, or has. a power to sell and convey an estate in fee-simple in that lot.

On bill and affidavits, and answering affidavits. The bill in this case is filed by Mary T. Truitt and others, owners of a hotel in Atlantic City, called the “Hotel De Ville,” and of'the furniture, goods and chattels therein contained, and seeks to restrain the defendant Albert H. Darnell from selling that property under a judgment in attachment-entered by him in Atlantic county circuit court against the complainants for fees alleged to be due him from them for services as…

On bill to foreclose. Petition by purchaser to amend foreclosure proceedings. A mortgage was given upon two lots of land in Atlantic City.

On bill, answers and proofs. This bill is filed by the complainant, as receiver by appointment of this court of Robert S. Hobbs & Company, a corporation of' this state, against one Samuel Gourley, the holder of a real estate and chattel mortgage, made cn the 13th day of December, 1901, by that company to the defendant, to secure the payment of $20,000, covering substantially the entire property of the company.

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

<p>On motion to discharge receiver of insolvent corporation.</p>

<p>1. Where a bill to quiet title to realty, under act of March 2d, 1870 (Gen. Stat. p. 3J/S6), omits a statutory allegation, but complainant’s peaceable possession with claim of ownership is admitted, and there is no misunderstanding as to the issues, an amendment may be made to bring the cause within the statute.</p> <p>2. In a statutory action to quiet title, under act of March 2d, 1870 (Gen. Stat. p. 3486), the complainants, being in peaceable possession-of the premises, are not required to establish their title until the defendant has shown prima facie the adverse title or interest which he claims.</p> <p>3. In a suit by complainants in peaceable possession of premises (o quiet title, defendant’s adverse title under an alleged heir of complainants’ intestate, who died seized of the premises, is not sustained by proof that such heir called intestate “cousin,” with inferences drawn from such fact by persons who had no knowledge in regard to the matter, where it appears that such heir and defendant, with full knowledge of the fact for a period of forty years, failed to assert any claim based on relationship to intestate.</p>

<p>Where a testator devises his estate in trust, directing the payment of the interest to his daughter for life, and on her death the division of the fund equally among the daughter’s children who shall then be living, the assignee of the daughter and her children cannot require fhe distribution of the fund during the daughter’s life on the ground that any new beneficiaries may" hold the parties who have received the fund and compel restitution.</p>

<p>1. Where a suit to enforce an alleged trust for the benefit of minors involved the construction of the will creating the trust — as to whether the income of the entire estate was applicable to the maintenance and education of the minors, or only the income of their several shares — all of the minors interested in the estate were necessary parties.</p> <p>2. Where a testamentary guardian of certain minors had never qualified, and'the trust created by the will for the support of the minors could be executed without reference to such guardian, she was not a necessary party to a bill to enforce such trust.</p>

<p>On petition, &c.</p>

<p>On appeal from an order advised .by Vice-Chancellor Emery, whose opinion is reported in 19 Dick. Gh. Rep. 117.</p>

<p>Oil cross-bills.</p>

<p>On appeal from a decree advised by Vice-Chancellor Stevens, whose opinion is reported in 18 Dick. Ch. Rep. 120.</p>

Tbe appeal in this ease was from a decree advised by Vice-Chancellor Pitney, dismissing a bill for divorce. The opinion is reported in 17 Dick. Ch. Rep. 509. The reference in this cause had been made to Frederic Adams, Esq., one of the special masters in chancery, and depositions were taken before him. He made his report on the 28th day of August, 1901, and therein stated that he had reached the following conclusions on the law and on the facts: 1.

Ch. Rep. 371. The bill in this case was filed by the executors and trustees of the will of Mary P. Wintringham, deceased, to obtain a construction of the fifteenth, sixteenth and seventeenth clauses of that will. These clauses are as follows: “Fifteenth.

<p>The right of a stockholder to prosecute a suit on behalf of the corporation can only be maintained by showing a refusal, either actual or presumptive, by the board of directors to do so; and, where there has been no actual refusal, the burden is on the stockholder who brings the suit to show the existence of such a state of facts as justifies the conclusion that an application to the board to prosecute would be futile.</p>

<p>On appeal from a decree in chancery sustaining a demurrer to a bill of complaint and dismissing the bill. See 18 Dick. Ch. Rep. 422.</p>

<p>On appeal from a decree advised by Yicc-Chancellor Pitney, whose opinion is reported in 18 Dick. Ch. Rep. 422.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 18 Dick. Ch. Rep. 454.</p>

That the case may be understood, it will be necessary to state the situation as it was prior to the giving of the release. Held: in Barrs v. Jaclcson, 1 Phil. 582, with respect to the analogous question of who was next of kin, reversing the contrary decision of Vice-Chancellor Ivnight Bruce, reported in 1 Youngs & C. 587. Tire weight of English and American authority is said to be in favor of the view taken by Lord Lyndhurst. Duchess of Kingston’s Case, 2 Sm.

<p>On appeal from a decree of the ordinary, whose opinion is reported in 19 Dick. Ch. Rep. 303.</p>

<p>On appeal from a decree advised by Vice-Chancellor Grey, whose opinion is reported in 18 Dick. Ch. Rep. 677.</p>

<p>On-appeal from a decree of the ordinary, whose opinion is reported in 19 Dick. Ch. Rep. 290.</p>

<p>On appeal from an order advised by Vice-Chancellor Grey, whose opinion is reported in 19 Dick. Ch. Rep. 259.</p>

<p>On appeal from a decree advised by Yice-Chaneellor Pitnc3r, whose opinion is reported in 18 Dick. Ch. Rep. 70.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 18 Dick. Ch. Rep. 463.</p>

<p>On appeal from a decree advised by Vice-Chancellor Grey, whose opinion is reported in 18 Dick. Ch. Rep. 619.</p>

<p>On appeal from a decree advised by Vice-Chancellor Grey, whose opinion is reported in 53 Atl. Rep. 488.</p>

<p>On appeal from a decree advised by Yice-Chancellor Reed, whose opinion is reported in 47 Atl. Rep. 448.</p>

<p>On appeal from a decree advised by Vice-Chancellor Reed, whose opinion is reported in 51 Atl. Rep. 1094.</p>

<p>On appeal from a decree advised by Vice-Chancellor Reed, whose opinion is reported in 51 Atl. Rep. 1094.</p>

<p>1. The jurisdiction of the court of chancery to construe a will can only be invoked when such construction involves some equitable relief sought. It will not be exercised in construing a will in respect to the devolution of title to real estate, where no equitable relief as to such real estate is sought.</p> <p>2. The distinction between the powers formerly conferred on an administrator de bonis non cum testamento annetso and those now conferred on a substituted administrator, under the provisions of the supplement to the Executors and Administrators’ act of March ’22d, 1901 (P. L. of 1901 ¶. 80S), pointed out.</p> <p>3. Where a substituted administrator with the will annexed seeks an accounting of the personal estate of testator from the executors of a deceased executrix of said will, and it appears that upon the true construction of the will there was an interest in said personal estate vested thereby in a deceased daughter of testator, of whom there is no representative made party, and it further appears in the case that upon the death of the daughter her interest became vested in the executrix from whose executors the accounting is sought, a case for decree is not disclosed.</p>

On final bearing on bill and answer. Tbe complainant, Lucy A. Wiggins, is the widow and the defendant, William Wiggins, is tbe son of Del H. Wiggins, deceased, who died October 29th, 1902, testate of… Held: by his son, William Wiggins. Pie was also possessed of personal property, principally money in bank, amounting to $2,377.78. On the 17th of December, 1900, he made a will, the material parts óf which are as follows: “First.

On bill to foreclose. On final hearing on bill, answer, cross-bill and replication. This is a bill to foreclose a mortgage, dated December 30th, 1897, but actually executed and delivered about the 13th or 14th of'January, 1898, given by John E. Alexander to DeGroot and Garrick, executors named in the will of Naomi C. E. Wright, deceased. Both of these mortgagees having died, Mr. George E. Beach was substituted in their place and filed the bill.

<p>On bill for specific performance. On final hearing. .</p>

<p>In a suit to set aside a deed made without consideration by complainant to one occupying confidential and intimate relations towards her, evidence examined and held to show that complainant, at the time she made the deed, did not have sufficient mental capacity to know and judge of those things which enter into a proper disposition of property.</p>

<p>On final bearing on bill, answer and cross-bill, replication and proofs.</p>

<p>1. Mortgagees of corporate property are -not entitled to follow into the hands of, a receiver, appointed in insolvency proceedings against the corporation, funds received by the receiver from a railroad for damage caused by fire to the mortgaged property, when' such funds were obtained through a private settlement, not affecting the right of the mortgagees, to recover against the railroad for impairment of their security.</p> <p>2. Where the possession of mortgaged property by receivers of the mortgagor has continued with the actual or implied consent of the mortgagees, and their possession has been a benefit to the estate, any claim of the mortgagees to funds which come into the receivers’ hands is equitably subject to all proper expenses of the receivership.</p> <p>3. An application to a court of equity for payment of debts incurred by a receiver in the custody and management of the property is proper, and where the debts have been incurred without the express order of the court, the claims will be adjusted on an equitable basis.</p> <p>4. An order of the court to that effect, and also one for authority to incur indebtedness, is necessary to entitle receivers to retain their salary or compensation as a preferred claim as against claimants who have, at the request of the receiver, advanced money or performed services for the trust; and where the fund in hand is not sufficient to pay all the receivers’ debts and their compensation, the distribution must be made pro rata. ' ■ ■</p>

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

Heard on bill, answer, replication and proofs. This is a bill filed by an executor for the construction of the will of the testator, John I. Blair, and for directions as to the disposition under the will of the personal estate in hand for distribution. .

<p>Under section 1 of the act concerning wills {Gen. Stat. p. 3757), providing that estates per mitre vie shall be devisable, failing which they should go to the personal representatives, to be distributed the same as personalty, such an estate belonging to a married woman who dies before the cestui que vie, passes by her will as realty, free from any claim of the husband thereto as personalty by virtue of his jure mariti.</p>

On motion to strike out certain paragraphs of the answer filed, because the same and each of them are irrelevant, impertinent, immaterial and insufficient.

This bill is filed to obtain a decree that B. Francis Wood holds tbe legal title to two lots of land in Cape May City, now occupied by tbe complainant for terminal use, in trust, for tbe Seacoast Bailroad Company;, and also to obtain an. injunction against tbe further prosecution of an action in ejectment brought by said Wood to dispossess the Atlantic City Bailroad Company.

<p>The commission of adultery by a husband at a place other than his own dwelling is not desertion.</p>

This is an appeal from a decision of a receiver overruling the claim of the Pittsburg Plate Glass Company to be paid a balance due it from the insolvent Camden Manufacturing Company out of the proceeds received on fire policies by the receiver.

<p>1. Where defendant in partition challenges the title of complainant, the " court will not proceed with the suit until the legal title is settled by an action at law, unless the right of complainant or defendant involves some equitable question.</p> <p>2. The court cannot retain a suit for partition, as one to quiet title and partition, where the bill does not show that complainant is in possession of the land.</p> <p>3. Where, in partition, defendant in possession challenges the title of complainant, ejectment is an adequate proceeding tO' try the title.</p>

This bill is filed to compel the specific performance of an alleged contract between these parties for the sale and purchase of a house in Woodbury, New Jersey.

<p>A chattel mortgage of a stock of drugs and fixtures covered the goods mentioned in a schedule thereto annexed, and also all other merchandise and personal property which the mortgagor may, while the instrument remains in force, place on the premises, by way of replenishment or addi-* tion to the stock. While the mortgage was in force, the stock changed hands several times, the several successive owners buying subject to the mortgage, and all, excepting the last, assuming payment of the mortgage debt. The last purchaser made a collateral agreement with the mortgagee by which notes which he gave for property were to be endorsed to the mortgagee, and on payment thereof the latter was to cancel the mortgage. —Held, that the mortgage not only covered the chattels which had been placed on the premises by the mortgagor in the way of addition to the stock on hand, but that it was also a lien on those so placed on the premises by all the subsequent purchasers of the stock, superior to the liens ot judgment creditors subsequently levying on the property.</p>

On bill for partition’. The bill is filed by three of the four children of Jesse B. Shipman to partition a farm in Warren county, owned at the time of his death by Jesse B. Shipman, and devised by him to Ellen, .his wife, for life, and after her death to his four children — Henry, George S., William C. and Mary Fox. The widow, Ellen Shipman, died January 4th, 1899. William C. Shipman, the defendant, filed an answer and an answer by way of cross-bill.

<p>1. A provision in an insurance policy that on disagreement as to the amount of loss the same shall be ascertained by appraisers, who shall estimate the loss, stating separately the sound value and damage, does not limit the appraisement to cases where the appraisers can view the property, but an appraisement is authorized where there has been a total loss.</p> <p>2. Where an insurance policy provides that on disagreement as to the amount of loss the question shall be determined by appraisers, an appraisers’ award is not void because the appraisers were not sworn.</p> <p>3. An insurance policy provided that on disagreement as to the amount of loss the same should be determined by appraisers. There was a total loss, and appraisers were appointed who had not seen the personal property, and had only casually seen the building; and the only information which they obtained respecting the personalty was derived from the list contained in the proof of loss, and concerning the realty from the description contained in the policy. No effort was made to ascertain the original cost of the property or to what extent it had depreciated by Lime and use. — Held, that under such circumstances assured was entitled to notice of the appraisement.</p> <p>4. Where insured property was totally destroyed, an appraisement stating the value of the property at the time of the award to be 8350 and the actual damage to be $140, was not in proper form.</p> <p>5. On a bill to set aside an appraisement of insured property destroyed by fire, on the grounds that no appraisement was authorized by the policy and that no notice had been given assured, the court will not retain jurisdiction to determine the extent of liability of the insurer, or whether the insurer is entitled to a new appraisement, such questions being purely legal.</p>

On petition to have tlie manner by which the petitioner, the trolley company, shall cross the tracks of the respondents defined.

<p>1. A mortgage given by a corporation which is insolvent, or which is contemplating insolvency, to secure money lent at the time it is given, is valid under section- 64 of the Corporation act of 1896, if the mortgagee be without notice of such insolvency or without notice that it is in contemplation.</p> <p>2. Contemplation of insolvency, within the meaning of section 64, is something more than contemplation of the possibility of insolvency on a contingency which does not in fact happen. If a corporation, or its officers, regard a suspension of its ordinary business, for want of funds, as likely to happen in the event of its not being able to borrow money with which to meet its current engagements, and it is’ in fact able to borrow it, and it secures the money lent by a mortgage and goes on, it cannot be said to contemplate insolvency, within the meaning of section 64, at the time the mortgage is executed, for then it contemplates not insolvency, but the reverse.</p> <p>3. If the notes of a corporation go to protest, that may be prima facie evidence of insolvency, but it is not conclusive evidence of it.</p> <p>4. If a corporation mortgage to trustees to secure an antecedent indebtedness, pursuant to an agreement made with a creditor to whom such mortgage is to be given, and the mortgage, by its terms, is made to cover property then owned and afterward to be acquired, and contains a power authorizing trustees to sell on default of payment, and a further-provision that the trustees shall certify and deliver the bonds secured to or upon the order of the company, such mortgage is not fraudulent and void under the rule laid down in Owen, v. Arms, 2 Duteh. 123, and National Bank of Metropolis v. Spragtie, 6 O. E. Or. 50.</p>

On bill for specific performance, answer and proofs. The bill in fliis case is filed to compel the specific performance of a contract to convey a house and lot of land situate in Atlantic City in this state. As originally filed, the complainant was Patrick E. Connely and the defendants were Michael Haggarty, trustee, and Daniel M. Haggarty.

<p>On petition for divorce. Answer and' proofs.</p>

<p>1. It is no defence to the foreclosure of a building association mortgage that the mortgagors received no personal benefit from the loan which it is intended to secure.</p> <p>2. A mortgagor cannot set up as a defence to foreclosure of the mortgage that he had no title to the premises.</p>

<p>1. Jurisdiction to determine how conflicting easements of way across the same place shall be occupied and used by two or more holders of such easements, is vested in the court of chancery.</p> <p>2. That jurisdiction is one of the inherent equitable powers of the court of chancery, which is incapable of exercise by any other forum, and is protected by article 6, section 1 of the constitution of this state.</p> <p>3. It is unaffected by any legislative franchise granting to a corporation an easement of way, or by a legislative charter which. empowers a municipality to regulate streets and railroad crossings within its bounds.</p> <p>4. Where a newly-organized company is authorized to lay its railroad tracks at grade across the existing tracks of another railroad, and the construction proposed involves only such a crossing, the new company should pay the expenses incident to the safe construction of its tracks across those of the senior company.</p>

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

<p>Application to amend decree for divorce so as., to insert allowance of alimony.</p>

<p>1. A tugboat captain, who was a bachelor and an old friend of complainant’s family, was in the habit, for - about fourteen or fifteen years, of coming to her house about once a week, where a room was always kept for him. He generally came on Saturday night, and returned to his boat on Sunday niglit or Monday morning, and' on these weekly visits complainant- kept his books ■ and wrote out reports which he was obliged to band in to the bookkeeper of his employer — work which he was incapable of doing in a satisfactory manner. After he gave up his employment he resided continuously in complainant’s family for about five years, during which time he was supplied with board, lodging, washing and mending, and was nursed by complainant through several illnesses.- — Held, that what he received from complainant was furnished under circumstances which gave her a legal right to compensation, and not under circumstances which merely loft her to expect voluntary compensation by his will.</p> <p>2. Evidence considered and held, sufficient to show an agreement to devise a house and lot in payment- for services rendered a decedent.</p> <p>3. Where, in consideration of services rendered a tugboat captain, in assisting him with his books and reports as to his business, and in attending to his washing and mending, and supplying him with board and lodging at the house of complainant, where he was in the habit of spending much of his time for a long period of years, he orally agreed to will complainant a particular house ^and lot, of which complainant took possession, with her family, as a home, the specific performance of the agreement is the only adequate remedy which will compensate her for her services, whether or not she is able to maintain an action at law for compensation.</p> <p>4. Complainant, in 1872 or 1873, began to render regular and valuable services to O. in consideration of his oral promise to compensate her 'at his death by a devise of a house suitable for a residence. In reliance upon this- promise the services were continued for fourteen or fifteen years. After about eight years of continuous service, in 1881, complainant and C. selected a lot in the city of Newark, which C. thereupon purchased and had conveyed to himself, and upon which he erected a residence adapted to the complainant’s requirements. The complainant at once took possession of the residence with her family and C. continued, as formerly, his practice of making the house his home a part of the time. After about twelve years of service on the part of complainant, some time in 1885, C. executed a valid will, 'devising the house and lot to complainant, and also giving her a legacy of $2,000. This will was, with O.’s knowledge and consent, delivered to- complainant, who kept possession of the same for about eleven years. In 1887 O. gave up business and the complainant’s services, for the most part, ceased. 0., however, then established a permanent and continuous residence with complainant, where he was gratuitously supported for about five years. In 1887 O. proposed to the complainant that another residence be selected in the place of the one she occupied. Accordingly, with complainant’s consent, the residence was sold and a new lot selected and a house was erected thereon by 0., in accordance with complainant’s wishes. O. most'positively declared at the time to the complainant and others that the new house should take the place of the former one, and that it belonged to complainant, and that he was building the house .for the complainant. O., in terms, promised the complainant that the new house should be substituted in the will for the former one. In reliance upon the promises and representations of 0., the complainant allowed her action at law on a quantum meruit to become subject to the defence of the statute of limitations while the will was in-'her possession. About 1896 O. obtained the will and presumably destroyed it. O. died intestate in 1899. In a suit against O.’s heirs and administrators — Seld, that a promise to devise land is within the statute of frauds; that the circumstances of this case, including the continuous possession of the house and lot by the complainant, the possession of the will by the complainant and the subjection by the complainant of her claim at law to the defence of the statute of limitations, in reliance upon C.’s promises and representations, took the case out of the operation of the statute and entitled the complainant to the remedy of specific performance; ■ that to deny the complainant the remedy of specific performance would lead to the accomplishment of a fraud — that fraud is not redressed, but prevented, by the equitable remedy of specific performance in cases of this kind.</p>

<p>Motion for a preliminary injunction. On bill and affidavits and answering aQidavits.</p>

<p>T. The statute of descents regulating advances of land can have no application to a question as to whether conveyances of real estate by a testator were to be deemed'as advances of “sums of money,” or “advances and payment of money,” within the meaning of the terms as used in his will, it applying only in cases of intestacy.</p> <p>2. An agreement by a child that property received shall constitute an advance may be considered in determining whether it is the intention of the will that the property shall be so treated.</p> <p>3. Testator’s children signed an instrument acknowledging having-received from their father “divers sums of money and other property,” which he desired acknowledged in order that no misunderstanding or confusion might- result in the settlement of his estate. Subsequently two of the children signed an instrument acknowledging that since executing the above instrument they had received certain real estate as an advancement, and consenting that the value of the same, as fixed at a certain sum set opposite their names therein, “may be deducted from any share we may become entitled to” in his estate. The will directed “that the sums of money which I have advanced and which I may hereafter advance to my children shall be considered as advances and charged against each; * * * such advances and payment of money shall be taken out of their respective shares.” — Held, that the conveyances of land to the two sons were to be deemed “sums of money,” or “advances and payment of money,” within the intention of the will.</p> <p>4/ The agreements related to any distributions that might be made of the estate, whether under a will or on intestacy, and might be considered in determining the intention of the will.</p> <p>,5. The two receipts constituted a contract on the part of the sons that the land might be treated as an advancement of money in a will by the testator, and 'they were estopped from denying its effect.</p> <p>6. A contract by children with théir father that conveyances of land should be treated as advances was valid.</p>

<p>1. A paper-writing, produced and offered for probate as a will, is shown to have been written and signed by the testator. It has a complete attestation clause appended, also in the handwriting of testator, and beneath that clause'are the admitted signatures of two competent witnesses.— Held, that a presumption of due execution is thereby raised, which will require the admission of the paper to probate, unless overcome by strong and convincing evidence.</p> <p>2. Both of the subscribing witnesses, when called, while admitting the genuineness of their signatures, testify that the paper was not signed by testator, nor the signature thereto acknowledged by him, in their presence, and that their signatures were not made at the same time or in the presence of each other. Although the evidence of one witness was open to serious question affecting his recollection of the transaction, the evidence of the other witness being found credible, and to establish that he did not see the attestation clause or know its contents, and that the statements therein certified were not in fact true — Held, that the presumption arising from the attestation clause was overcome, and that probate should be denied.</p>

<p>On appeal from assessment under the Collateral Inheritance Tax act.</p>

<p>By the first clause of bis will testator directed his debts, funeral and testamentary expenses to be paid by his executors ; by the second, clause he bequeathed to his wife certain specific goods and chattels — part of his personal property — expressly declaring that the bequest was not to include such personal property as consisted of money and securities; by the third clause he bequeathed all his personal property to his wife and his two daughters, each to have one-third thereof. — Held, that no contrary intent being disclosed by other parts of the will, the general bequest contained in the third clause did not revoke the specific bequest contained in the second clause, nor was such specific bequest included in the one-third part bequeathed to the wife by the third clause, but that such specific bequést operated to except from the general bequest the articles so specifically given. .</p>

<p>Persons interested in an estate presented a petition to an orphans court lo open several accounts filed by executors and allowed by the court, on the ground that the executors had not charged themselves with specified items of money or property of the deceased for which they should have accounted, and an order requiring the executors to show cause why the accounts should not be opened was made. The executors answered the petition and thereby admitted that they had omitted from the accounts, by inadvertence, certain of the items specified in'the petition, but set up, by way of cross-petition, that they had omitted, by like inadvertence, certain disbursements and expenses for which they should have been allowed. An order to show cause was issued on the cross-petition, and both orders came to hearing together. The court found that the charges admitted, or proved to have been omitted, were at least equaled by the disbursements proved to have been omitted, and refused to open the accounts. On appeal from the order refusing — Held, (1) although the executors admitted mistakes which would be ground for the opening of the accounts under section 127 of the Orphans Court act of 1898, yet that on the cross-petition it was proper practice to proceed to investigate whether the mistakes as to charges admitted or proved exceeded the mistakes as to allowances for' disbursements; (2) on such an appeal this court is required to review not only questions of law but questions of fact; (3) in this case, upon such a review, the decree of the orphans court is not found to be erroneous.</p>

<p>On appeal from a decree advised by Yice-Chaneellor Pitney, whose opinion is reported in 53 Atl. Rep. 455.</p>

<p>On appeal from an order advised by Vice-Chancellor Stevens, whose opinion is reported in 18 Dick. Ch. Rep. 605.</p>

<p>1. The holder, of a mortgage not recorded when a bill is filed to foreclose another mortgage upon the premises, is bound by the decree in such foreclosure suit as if he was a party and had appeared to the suit.</p> <p>2. He cannot file an original bill upon the unrecorded mortgage, but must seek his rights by applying to intervene in the first suit in accordance with the provisions of section 78 of the Chancery act (Rev. p. 118). now section. 58 of the Chancery act of 1902.</p>

<p>E., a depositor in the savings fund of the Pennsylvania Railroad Company, at the time of opening his account therein, directed the company to pay to his wife, in the event of his death, all deposits which should then be standing to his credit in the fund. This the company agreed to-do. — Held, that the disposition thus made of the moneys remaining to E.’s credit at his death was testamentary in its character, and was invalid, because not made in the manner prescribed by the statute of wills.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 1-9 Dick. Ch. Rep. 1/6J.</p>

<p>■ On appeal from an order advised by Vice-Chancellor Emery, whose opinion is reported in 18 Dick. Ch. Rep. 557.</p>

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

<p>On appeal from an order advised by Vice-Chancellor Pitney.</p>

<p>On appeal from an order advised by VieeChancellor Reed.</p>

<p>On appeal from an order advised by Vice-Chancellor Reed denying an injunction.</p>

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

<p>On appeal of Robert P. Wilson.</p>

<p>On appeal of William McKenzie.</p>

<p>1. If a wife by words and blows, provokéd her husband to counter verbal and physical abuse, which abuse was not disproportioned to the provocation, she cannot get a divorce on the ground of his extreme cruelty.</p> <p>2. The mental condition of the wife will not remove the case from this rule, if it is not such as to deprive her of power to desist from her provoking conduct.</p>

The order appealed from is affirmed, for the reasons given by Vice-Chancellor Grey in his opinion filed in the court of chancery, as follows: The bill in this case is filed by the complainant for an accounting and compensation for services rendered by him to the defendant as salesman and collector. The pleadings in the cause admit the relationship .of the parties, the contracts for complainant’s services, and the nature of the compensation.

<p>On appeal from an order advised by Yice-Chancellor Pitney.</p>

<p>On preliminary motion.</p>