Volume 69 — New Jersey Equity Reports

<p>The court of chancery -will not express an opinion as to the construction of a will involving title to real estate, independent of any equitable-relief sought.</p>

<p>1. A tenant in common, who has been in exclusive possession, may be required to discover and account for rents and profits in proceedings to partition the common property.</p> <p>2. Land descended to complainant and his brother as heirs of their mother. The brother conveyed his interest to one who afterwards conveyed to defendant. The brother also acted as administrator of his mother’s estate, and never accounted for her estate, or for moneys collected for it.—JlelA, that complainant could not, in partition proceedings against defendant, to which no representative of complainant’s mother or brother was a party, obtain an accounting of the estate of complainant’s mother, or have complainant’s distributive share of that estate imposed as a lien on defendant’s interest in the land.</p> <p>3. Where a bill combines prayers for proper and improper relief, and a demurrer to the part of the bill seeking- improper relief is sustained, the bill will be retained for the administration of the relief properly sought.</p> <p>4. A demurrer not confined to thé part of a bill on which no relief can be decreed, but covering- the whole bill, is too broad, and must be overruled if the bill shows one sufficient ground for relief.</p>

<p>1. Where, in an action against distributees of a decedent who had assumed payment of a bond and- mortgage as a part of the consideration for the purchase of land encumbered thereby, it was alleged that the bond was payable at the death of a certain widow, who died April 15th, 1904, the cause of action- did not accrue until that date, so that a failure- of the obligor to pay interest for sixteen years prior to- the filing of the bill shortly after the widow’s death was ineffective to bar the action, under 2 Gen. Stab. p. 1975 § 6, barring a debt under seal on which no payment has been made within sixteen years.</p> <p>2. A demurrant may present, ore terms, an additional ground of demurrer.</p> <p>3. It is not necessaiw that the holder of a bond alleged to have been assumed by defendant’s testator should have presented it as a claim against his estate in order to entitle the holder to proceed to enforce defendants’ statutory liability as distributees for the payment of the bond.</p> <p>4. Where complainant had no lien on personal assets of a deceased person he could not maintain a suit in equity against distributees of such assets to subject them, or lands purchased therewith, to the payment of a bond on which deceased was liable, complainant’s remedy at law being-complete and adequate.</p>

<p>1. The jurisdiction of the court of chancery to decree the annulment of a marriage on the ground of fraud is confined to cases of fraud which affect the essentials of marriage, and will not be exercised if a decree of annulment will violate public policy.</p> <p>2. The parties to this suit were legally married and lived together as husband and wife for about one year, when complainant left defendant because he failed to support her. Before the marriage defendant falsely, stated to complainant and to the justice of the peace who performed the ceremonj' that he had never been previously married. In fact, he had been married previously and had been divorced from his wife, who was still living.—Held, that the false statement did not affect any essential of marriage, for the parties were competent to marry; their cohabitation, when married, was within the law, and children, if begotten of the marriage, would be legitimate.</p> <p>3. Complainant is a member of a church, one of the tenets of which is that a marriage cannot be dissolved except by the death of one of the contracting parties, and that a marriage with a divorced person, the other party to the divorce being yet living, is invalid and cohabitation therein is sin.—Held, that although complainant may have been misled by the false statement and induced to infer that defendant could not be a divorced person, the marriage, being valid by the law of the land, should not be annulled because it is claimed to be invalid by the law of a church.</p>

<p>Exceptions for insufficiency will lie to the answer of a corporation.</p>

<p>1. The use of esc parte affidavits in procuring jpi order to show cause why respondents should not be adjudged guilty of contempt of court is proper where affiants are present at the hearing on the return and are offered for cross-examination to the persons named in the order.</p> <p>2. An investigation as to alleged conduct in contempt of the court of chancery may be referred to the vice-chancellor or a master of the court.</p> <p>3. A proceeding for contempt not committed in open court, being punitive in character, and hence not the subject of appeal, and which may affect property and liberty, ought not to depend on- the judgment of a vice-chancellor or master in chancery, but is a matter for the personal attention of the chancellor.</p>

<p>1. Exceptions to a final account of the receiver of an insolvent corporation will not be considered if they relate to matters which could have been urged against making the decree of insolvency, or upon an order to show cause why a. previous account of the receiver should not be set aside, obtained by the exceptant.</p> <p>2. The account now presented, being unsupported by sufficient vouchers, will be referred to a master, by an order excluding from consideration every matter adjudicated upon in the decision of the order to show cause and the confirmation of tlie report on the previous accounts of the receiver.</p>

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

<p>On final hearing on bill, answers and proofs.</p> <p>The bill in this canse was filed in August, 1896, and was met with a demurrer which was overruled on the 29th of March, 1897, for reasons reported in Bee v. Heppenheimer, 55 N. J. Eq. (10 Dick.) 240.</p> <p>The order overruling the demurrer was reviewed by the court of errors and appeals and affirmed February 28th, 1898, “for the reasons given in the court of chancery,” sub nom. Naumberg v. See, 56 N. J. Eq. (11 Dick.) 45$.</p> <p>An amended bill was filed May 27th, 1898, and answers filed by fifteen of the defendants at dates varying from July 15th to September 20th, 1898.</p> <p>The cause was elaborately argued in the summer of 1904 both orally, and later in print, the latter covering six hundred pages, by-</p>

On final hearing on bill, answer and proofs. The complainant, Louisa Avakian, whose maiden name was Hagopian, by her bill, asks a decree of annulment by this court of the ceremony of marriage gone through between her and the defendant, Hagop Avakian, on the 12th of February, 1903, at St. Patrick’s chapel, in Westminster, in the city of London, England. The ground of her claim is fraud and duress practiced and imposed upon her by the defendant.

<p>On order to show cause why an injunction should not issue.</p>

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

<p>1. "Where a deed conveyed to complainant a lot fronting on a highway, it included all land in front of the lot to the centre of the street, in the absence of a reservation to the contrary, though the description did not in precise terms include any part of the street.</p> <p>2. "Where, at the time of a conveyance of a house and lot to complainant, there was a drain leading therefrom on to an adjoining lot, owned by complainant’s grantor, which passed from thence into the street in front of complainant’s property before connecting with the public sewer, the conveyance to complainant carried with it as an appurtenant the right to maintain the drain as it then existed in such adjoining lot.</p> <p>3. Where complainant owned the right to maintain a tile drain through defendants’ property and thence across complainant’s property and into the street sewer, complainant was entitled to -an injunction to restrain defendant from connecting his drain therewith in such a manner as to create an obstruction in the pipe and prevent the sewage from complainant’s premises from being carried off freely.</p>

Heard bn bill, answer, replication and proofs. On September 8th, 1902, the complainant, Mrs. DuBois, and the defendant Mr. John A. Nugent, entered into a written contract for the exchange of lands, which was carried out on October 1st, 1902, by deeds of that date.

Heard on bill, amended bill, answers, replication and proofs.

<p>The charter of a beneficial association provided that its object was to establish a benefit fund for the families or dependents of members as they shall direct, and a by-law declared that on the death of one or more beneficiaries prior to the death of the member, if no change of beneficiary should have been made, the share or shares to which such beneficiary or beneficiaries would have been entitled shall be paid to the beneficiary’s legal representative, to be distributed to his or her heirs-at-law.—Held, that where a member of such order died after the death of his wife, who was named as his -beneficiary, without appointing a new beneficiary, the heiz-s of the wife at the time of the member’s death were entitled to the fund.</p>

<p>The owner of land in a city, having erected thereon a fence more than eight feet high before aDy ordinance had been passed prohibiting such fences, is entitled to a preliminary injunction restraining- the city- superintendent of buildings (pending final hearing-) from removing the fence on the ground that it was erected in violation of the ordinance, since certiorari would not lie to review the mere determination of the superintendent of buildings; nor would it lie to review the ordinance in question which applied only to fences subsequently erected.</p>

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

<p>1. He who has two funds for the satisfaction of his claim shall not, by electing to resort to the singly-charged fund, disappoint him who has that fund only to resort to.</p> <p>2. This rule is subject to this, among other qualifications, viz., that both funds must be within the jurisdiction and control of the court, except in the rare cases in which it is clear that the creditor having the two funds will sustain no loss, delay or additional expense, if required to resort, first, to the fund without the jurisdiction.</p> <p>3. Where there is a paramount mortgage upon land, part of which is conveyed by the mortgagor, equity will throw the burden upon the land that remains where the grantee has paid full value or where the grantor has covenanted against encumbrances. But, the rule being based upon intention, expressed or implied, it will not obtain, in favor of a purchaser, at a sheriff’s foreclosure sale.</p>

<p>1. The Bankrupt act of 1S98 provides that “a discharge in bankruptcy shall release a bankrupt from all of his provable debts except such as * * * were created by his fraud, embezzlement, misappropriation or defalcation while acting as an officer or in any fiduciary capacity.”—Held, (1) that the words “fiduciary capacity” having reference only to téch• nical trusts, a debt arising out of an implied understanding, bad on a conveyance in the ordinary form of an absolute deed, from R. to M., of certain parts of R.’s real estate, no trust being expressly declared, was not excepted from the operation of a discharge; (2) that the fair inference from the facts stated was that the conveyance was intended to hinder and delay creditors, and that the grantee therein did not, for that reason also, hold in a fiduciary capacity within the meaning of the act.</p> <p>2. R. executed to M. a chattel mortgage to secure certain notes of a firm of which he was a member. These notes were fully paid. The allegation of the bill was that M. claimed to hold the mortgage by assignment for a debt due from R. to him.—Held, that the defence being of a character plain and palpable, and within the command of the party at any time, in the absence of any allegation that there was any agreement that the mortgage should stand as security for money due from R. personally to M., a case for the affirmative remedy of cancellation had not been made out.</p> <p>3. A debtor may, in a case situated like the present, plead his discharge in bankruptcy after answer filed, such plea being in the nature of a plea puis darrein continuance.</p>

<p>A plea put in by one P. denied, in general terms, that the property concerning which relief was sought was located within the State of New Jersey. It admitted (by not denying) that the property in question was capital stock of a New Jersey corporation.—Held, that inasmuch as the siMs of the stock was in New Jersey, the New Jersey courts had jurisdiction to proceed against P. in respect of it; that he was a necessary party to the proceeding, and that a decree could be made in respect of the res which would, in case he should not appear, bind his interest therein.</p>

<p>1. N. S. I. conveyed to F. R. W. The grantee was designated “trustee for R. M. W.,” and the habendum, clause was “to have and to hold the above-described land and premises, with the appurtenances, unto the said party of the second part (F. R. W.), his heirs and assigns, to the only proper use, benefit and behoof' of M. R. W. aforesaid, her heirs and assigns forever.” The consideration proceeded from F. R. W., who stood in loeo parentis to R. M. W.—Held, that if the statute of uses executed the legal estate in R. M. W., it did not, because the consideration proceeded from F. R. W., make her a trustee for him.</p> <p>2. A trust will not be raised in opposition xo the declaration of the person who advances the money, or the obvious purpose and design of the transaction.</p>

On bill for divorce from bed and board. Answer thereto, supplemental bill and answer thereto;, and proofs on final hearing.

<p>1. The debt contracted and owing for labbr done or material furnished for the erection and construction of any building, &c., becomes a lien, by virtue of the first section of the Mechanics’ Lien act (P. L. 1898 p. 538), as soon as it becomes a debt.</p> <p>2. All liens arising under that act are concurrent. The holders of such liens are entitled to share ratably in the values of the building and land upon which their debts have become liens. This equity continues whether those values are realized by a sale under the Mechanics’ Lien act or under any other proceeding which divests the mechanics’ liens from the building and lands and relegates the holders thereof tg the proceeds of the sale for their remedy.</p> <p>3. Section 5S of the Chancery act of 1902, which provides that in any foreclosure suit persons claiming liens on the mortgaged premises which could be, but which are not, recorded at the time the bill to foreclose is filed, shall be bound by the foreclosure suit, &c., is a statute of convenience of procedure only. It binds the holder of the non-recorded lien “so far as the (mortgaged) property is. concerned,” but does not determine his rights in the purchase-money. As the owner of the unrecorded lien is not a party to the foreclosure, has no notice of it and no hearing as to his rights, it would not be “due course of law” if it were held that the foreclosure absolutely destroyed his lien.</p> <p>4. When two or more creditors have concurrent liens upon a fund which stands to pay all their claims ratably, no one of those creditors can, by any procedure, equitably take the whole fund and apply it exclusively to the satisfaction of his own debt.</p> <p>5. Any creditor who so appropriates a fund or property charged to pay concurrent liens must account therefor to his fellow-lien claimants according to their ratable shares.</p>

In partition. On exceptions to master’s report. In this case lands situate in Camden county have been sold and the proceeds of sale distributed by a decree dated the 22d day of December, 1904, except the portion thereof arising from the sale of the share of the defendant Joseph A. Burroughs, which portion by the same decree has been directed to be paid into this court to abide the chancellor’s order as to its further disposition.

Tlie bill of complaint in this ease is filed by Captain Edmund Stites, of Cumberland county, Yew Jersey, against Iris son,.

<p>On motion for a preliminary injunction. On bill, affidavits and answering affidavits.</p>

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

<p>1. Where the stockholders of a corporation unanimously adopted a bylaw placing the power to declare or withhold dividends in the board of directors, and, acting- thereon, the board used the profit's for expanding the business without the payment of dividends through a series of years, there was a waiver of the right of the stockholders to invoke the aid of a court of equity to compel the declaration of dividends in the absence of a showing that the policy of expansion being pursued by the board had become unreasonable.</p> <p>2. Where the officers of a close manufacturing corporation, whose stock has no recognized market value, vote themselves increases in their salaries while pursuing a policy of expanding the business by the use of the profits for that purpose, to the exclusion of dividends on the stock, a court of equity has power to compel the, restoration of excessive, amounts .so withdrawn, and to adjust the salaries to a reasonable basis.</p>

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

<p>1. Under the Corporation act of 1875, authorizing the issue-of full-paid stock for the purchase of property, and requiring such stock to have stamped upon the face thereof the words, “issued for property purchased,” the issue, in exchange for property, of full-paid stock, stamped as required, constitutes a contract which will prevent an assessment of the stockholders, until and unless it is set aside as an agreement in fraud of creditors.</p> <p>2. The proper course to obtain relief is by bill to have the contract set aside and the delinquent stockholders decreed to pay a sufficient proportion of all unpaid subscriptions to satisfy the liabilities of the company.</p> <p>8. In the absence of actual fraud, the overvaluation, by the directors, of property taken in exchange for stock, does not render the transaction fraudulent 'as against creditors.</p> <p>4. Any device by which the stock of a corporation passes to a stockholder as full paid, without .payment in full, either in cash or property purchased, to the amount of the value of the stock, such as an intentional overvaluation of property on the understanding that a portion of the stock issued shall be returned for distribution among the directors voting for a purchase of the property, without payment by them, constitutes actual fraud against the creditors of the corporation.</p> <p>5. Bona fide transferees of stock certificates which recite that the stock is full paid, are not bound to make good to creditors the contract of the original subscribers to pay for the stock in full, according to its par value, where they have no knowledge or notice that the subscribers have not paid in full.</p> <p>G. Creditors of a corporation who knew that stock issued as full paid was not in fact full paid, and nevertheless extended credit to the corporation, cannot, in the event of its insolvency, require the stockholders to pay their unpaid subscriptions.</p>

<p>Where a husband conveyed lands in trust for the benefit of his wife and. children, creditors of the wife cannot subject such lands to the payment of- her debts.</p>

<p>On bill. On final hearing.</p>

<p>On bill. On final hearing.</p>

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

<p>On bill. On final hearing.</p>

These are appeals by certain creditors from the adjudication of the receiver of the defendant company upon their claims. The main case was an action under the Corporation act for an injunction and a receiver upon the ground of the defendant’s insolvency.

This is a bill filed by Angelo Podesta, of Hoboken, against David W. Binns, Martha M. Binns and Emma E. Taylor, individually and as executors of the last will and testament of James Binns, deceased, Angelina Bonn, Hillric J. Bonn, Frederick Bonn, Edward Bonn, Anna M. B. Rollfs and John H. Bonn, and John E. Moody as substituted administrator with the will annexed of John H. Bonn, deceased.

<p>1. A defendant may take advantage of insufficient service of process in a suit in chancery by a plea to the jurisdiction reciting a special appearance, following Wilson r. American Palace Gar Go., 65 N. J. Bq. (20 Biclc.) 130.</p> <p>2. For a cause of action arising in this state, while a foreign corporation was transacting business here under a license obtained under the statute, chancery can enforce its jurisdiction by process served on the designated agent, whether the corporation is actually engaged in business here at the time of service or not, and such construction, of the statute is not violative of the fourteenth amendment of the federal constitution, in relation to due process of law.</p> <p>3. Though the business out of which a cause of action against a foreign corporation arose within the state- was not within that specified in the application filed by it, it can be reached by process served on its designated agent.</p> <p>4. Where a foreign corporation came into the State of New Jersey and organized and controlled a corporation, causing it to issue its bonds and stock, and took them and purchased stocks held in various New Jersey corporations, and also took from such stockholders sums of money as further consideration, and gave a guarantee that another corporation would pay the interest on its bonds, such transactions amount to a doing of business.</p> <p>5. Upon a hearing upon bill and plea raising a question of jurisdiction, the .merits may not be gone into further than is necessary to determine the question of jurisdiction.</p> <p>6. Service of process on a designated agent of a foreign corporation is good, although previously the corporation, by resolution, had formally revoked the designation and sent a copy to the secretary of state, who had placed the same with the files of the company and made an entry on his docket of foreign corporations to the effect that the corporation had withdrawn from the state, there having been no designation of another agent.</p>

<p>On motion for a preliminary injunction. Heard on bill and affidavits, and affidavits in opposition thereto.</p>

<p>1. The right, if any, which a private individual has acquired by implied contract or otherwise, to compel a railroad company to maintain a station at a certain point will not be enforced by injunction restraining the discontinuance of the station, but the party will be remitted to a suit for damages.</p> <p>2. The right, if any, of the public to compel a railroad to maintain a station at a certain point is a legal one, enforceable by mandamus, and not by injunction to prevent the discontinuance of the station.</p> <p>3. An injunction to prevent the discontinuance of a railroad station is so far mandatory that it should not issue preliminarily except under such circumstances as justify the issuance of a mandatory injunction.</p> <p>4. The authority of the courts to compel a railroad company to maintain a station where not required by charter or statute is not so clear as to justify the granting of a preliminary injunction restraining the discontinuance of such a station.</p> <p>5. Mandamus to compel a railroad company to maintain a station at a certain point is an adequate remedy where the company threatens to discontinue the station, and a preliminary injunction will not issue to keep the matter in statu quo pending the determination of the mandamus proceeding.</p>

<p>The main case was a proceeding under the Corporation act to have the defendant, corporation declared insolvent, and to have an injunction issued against it and a receiver appointed for it.</p> <p>The result of this suit was, among other things, the appointment of receivers on the 28th day of March, 1904.</p> <p>The property of the defendant corporation was encumbered by mortgage and other liens, and was, by_ order of this court, dated May 23d, 1904-, ordered to be spld by the receivers free and clear of all liens.</p> <p>It was so sold, and by an order dated October 17th, 1904, it was ascertained and ordered that the net amount remaining in the hands of the receivers, namely $7,668.28, should be paid into this-court, subject to the same liens and equities as before the sale.</p> <p>On the 5th of December, 1904-, Nathalie Jarvis filed her petition in this cause, praying that she might receive a portion of this money, and to that petition answers and cross-petitions have been filed by the Commercial Trust Company of New Jersey, the trustee under one of the mortgages, by John Alvin Young and Richard Irvin, by the Union Terminal Cold Storage Company and by the Erie Railroad Company.</p> <p>The case was heard upon the pleadings and proofs taken in open court.</p>

<p>1. Evidence of testator’s widow and son, who caveated against the probate of testator’s will, that at the time of executing- the will testator had become weakened by age and disease, and at times lacked the degree of mental force previously possessed by him, was insufficient to overcome proof showing- testamentary capacity given by those present when the will was signed and by the testamentary witnesses.</p> <p>2. Where i estator during his life had managed his own business, accumulating an estate of considerable value, and, though he had been ill for nearly a month, went to the office of his attorney and there consulted concerning a will which had been drawn for him in accordance with previous instructions, after which the will was executed in the presence of witnesses, who testified to testator’s capacity, evidence of his physician that testator was erratic and impulsive, and at some times more rational than at others, but at no time was he capable of any really consecutive, methodical thought or arrangement, but went by fits and starts in all his business, was insufficient to rebut such proof of capacity.</p>

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

<p>Where an order directed a purchaser of lands at an administrator’s sale to complete the purchase, and also directed the issue of an attachment for contempt on failure to complete the purchase within a given time, the first portion of the order, being appealable, entitled the purchaser to appeal, irrespective of the appealability of the second portion of the order.</p>

<p>1. A bequest to a school of learning having academic, collegiate and theological departments open to all of good moral character, there being no charge for instruction in the theological department, and the institution being supported largely by public and private charity, and devoting all its resources to increasing its benefit to the public, is a charitable institution.</p> <p>2. The act of 1894, providing for a tax on intestates’ estates, gifts, legacies, devises, and collateral inheritance in certain cases, exempting gifts and bequests to religious, benevolent and charitable institutions and organizations, did not exempt gifts and bequests to charitable institutions located outside the State of New Jersey from such tax.</p> <p>3. The supplement of 1898 exempting gifts and bequests to religious institutions, wherever located, from such tax, does not apply to a gift to an educational institution located without the state having academic, collegiate and theological departments, as it is not a religious institution within the meaning of the act.</p>

<p>1. If a woman, at or before a marriage ceremony, represents herself to be competent to marry, or conceals the fact that she is not so qualified, and thereafter her supposed husband makes a will in her favor, believing her to be his wife, and she knew she had another husband living when she married the testator, such testamentary disposition will be held void if the representation or concealment was fraudulent, and it induced the execution of the will.</p> <p>2. The facts show no fraudulent representation or concealment.</p>

<p>1. The fact that a testatrix had great confidence in her brother, and appealed to him for advice, and accepted from him assistance and counsel in the management of her business, cannot be made the sole foundation for a claim that he improperly influenced her in favor of his children.</p> <p>2. Where a testatrix, after the execution of a will, drawn according to instructions given one who conveyed them to the draughtsman, has the executed will in her possession a sufficient length of time, and with the opportunity and ability to acquaint herself with its contents, and she then preserves it, it will be conclusively presumed that the will was prepared according to her instructions, especially when it follows her pronounced intentions and provides for no unnatural disposition of her estate.</p>

<p>With the consent of the appellant, the orphans court may dismiss an appeal from the decree of the surrogate admitting a will to probate, without notice to the persons who may have been cited to appear, and without hearing the subject-matter of the appeal.</p>

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

On bill to construe the will of William J. Boggs, of which the following clauses are claimed to be in dispute: “Second. I hereby give and bequeath unto my beloved and affectionate wife, Catharine Ann, all my personal property and estate, and the use and income of all my real and leasehold estate during her natural life. Third.

On bill for directions to a trustee upon the construction of the residuary clause of a will, expressed in the following words: “Fourth.

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

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

<p>1. Defendant, upon leaving her husband, left a letter to him disclosing that her leaving- was caused by difficulties between her and petitioner’s mother and the subsequent conduct of petitioner. The letter gave him permission to come and see her, and was expressed affectionately.—Held, that it was the husband’s duty, under those circumstances, to seek his wife and urge a reconciliation, and that the proof did not establish a willful desertion at the time she left.</p> <p>2. A subsequent letter from defendant to petitioner declared that she intended never to live with him again. This .would be proof of willful desertion, but will not support a decree, as the statutory period had not elapsed since the date of the letter when this petition was filed.</p> <p>3. The evidence held not to show that petitioner had performed his duty in respect to a reconciliation.</p>

<p>1. A bill may be filed by a next friend on behalf of a lunatic not so found on an inquisition, upon an order of the chancellor made upon affidavits showing the complainant’s incompetency.</p> <p>2. Upon such a bill filed under an order of the chancellor, a motion was made to strike the bill from the files, supported by proof of complainant’s competency, and of her desire that the disposition of property attacked by the bill should stand.—Held, that upon such conflicting affidavits, the chancellor would either examine the complainant as to her intelligent desire to withdraw the bill, or would select a judicious master to make such examination.</p>

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

On bill and answer. The contention in this cause involves the construction of the following parts of the will of Bebecca Y. Throp: “Item 11th.

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

<p>1. Under the Bankrupt act of July 1st, 1898, chapter 541, section 60b, (30 Stat. p. 362; TJ. S. Gomp. Stat. 1901 p. 31/43), providing that if a bankrupt shall have given a preference, and the person receiving it or to be benefited thereby, or his agent acting therein, shall have had reasonable cause to believe that it was intended thereby to give a preference, it shall be voidable by the trustee, and he may recover the property or its value, the party receiving payment must have had reasonable ground to believe that it was intended thereby to give a preference before he can be held liable to refund.</p> <p>2. In an action by a trustee in bankruptcy to recover a payment made by the bankrupt, on the ground that it was an unlawful preference, -evidence held insufficient to show that defendants had reasonable ground to believe that a preference was intended.</p>

<p>On bill and decree of interpleader, answers and cross-bills.</p>

Heard on bill, cross-bill, answer, proofs and decree, and supplemental bill after decree, answers, cross-bill, replications and proofs. Held: Boice v. Conover, 63 N. J. Eq. (18 Dick.) 273 (1901), that the chattel mortgage was void against the judgment creditor,' under the statute, and the securities could not be marshaled so as to interfere with the creditor’s right to resort to the personal estate.

<p>1. In divorce, the evidence of a co-respondent cannot be set aside as insufficient to establish the charge merely because he is an accomplice.</p> <p>2. In divorce, the defence of condonation is not available unless pleaded.</p>

<p>The complainant purchased lands of the defendant, and, after discovery of an alleged mistake in the description, made an oral agreement with the defendant to purchase the additional land claimed to have been intended to have been included -in the original purchase, and soon after the complainant began building a porch thereon on the faith of this agreement, which porch was completed without the defendant’s objection. —Held, that this subsequent oral agreement cannot be repudiated after a year’s possession under it in order to obtain specific performance of the alleged original parol agreement of purchase by having the deed corrected to include the land in question.</p>

<p>1. Where, in a suit for partition, decedent’s widow filed a cross-bill, claiming the property under a resulting trust, on the ground that, though she had furnished the purchase price, the title was taken in the name of her husband, she was not rendered incompetent to- testify to the circumstances of the purchase and the source of the money by the provision -of the Evidence, act (Rev. 1900 p. S6S § J), excluding testimony of ai party to a civil action as to any transaction with or statement by any testator or intestate represented in the action where any party sues in a representative capacity.</p> <p>2. Prior to the act of 1874, the earnings of a married woman, even in equity, belonged to her husband, unless, by some clear and distinct act, he had evidenced an intention to hold them as trustee for her separate use.</p>

<p>. 1. Where the owner of land lays it out in streets and lots, and there is a general plan for the improvement of a street by a uniform scheme as to the building line, and covenants in relation thereto’ are inserted in the deeds of all purchasers, the same may be enforced by one purchaser against another without proof of special damages.</p> <p>2. Immaterial violations of the restrictions, not showing an intention to abandon the plan, are no defence to such action,</p> <p>3. Where the complainant gave the defendant notice as soon as it appeared that the latter’s building would violate the restriction, but the building was completed after suit for an injunction was commenced, complainant is entitled to a mandatory injunction.</p>

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

On petition by complainant for payment of money in hands of sheriff.. Heard on petition and affidavits, answer and affidavits.

<p>1. The objection that another suit is depending for the same matter is, .in general, taken by plea and not by motion.</p> <p>2. The complainant and defendant are tenants in common of a piece of land, and the complainant holds a mortgage on the undivided interest of the defendant. The complainant filed a bill to foreclose his mortgage, and the defendant made application to stay proceedings on the ground that there is a partition suit pending brought by the defendant against the complainant affecting the said premises and other lands, but not making the complainant, as mortgagee, a party.'—-Eeld, that the record does not show another suit pending for the same matter, and therefore the motion must be denied.</p>

<p>Husband and wife ordinarily hold a chose in action, made to them jointly during coverture, as tenants in common and not as joint tenants.</p>

<p>The object of a cemetery company, as declared in its certificate of incorporation, was to “maintain and use ‘its property’ for cemetery and burial purposes only.” The bill of a lot owner in the cemetery alleged that its property was being uncared for; that its drives and roads were at times impassable for carriages and that it was without funds to pay its debts.—Held, that the company would be enjoined from making a gift of money to a church organization whose members or some of them were also members of the company.'—Held, further, that although the lot owner was not a member of the company, he had a standing to complain of the misappropriation.</p>

<p>1. Testator bequeathed to his wife the interest arising from forty-six shares of bank stock and empowered his executors to pay the said interest to her “as the same shall be declared by said bank.”—Held, that the wife was entitled only to dividends declared, not to dividends earned.</p> <p>2. Testator devised and bequeathed as follows: “I do give and devise unto all my brothers and sisters and their representatives, after the decease of my wife, the house and lot left in trust to her and also the bank stock left in trust to her, to be equally divided, share and share alike.” The sisters died leaving issue.—Held, that the word “representatives” was substitutionary and meant, having reference to the context, “next of kin under the statute of distributions.”</p>

On bill and demurrer to part thereof. The bill of complaint in this cause is filed by the administrator of the estate of Eichard Mason, deceased. Mason, in his lifetime, was engaged in Camden, in this state, in the business of selling and renting pianos with the privilege of purchase.

<p>In partition, &c. On motion to tax costs before the master against the defendant Sarah H. Doughty.</p>

On bill, answer and proofs. This complaint is the statutory bill for discovery of the property of defendants in a judgment at law, on which an execution has been returned unsatisfied. P. L. 1902 ¶. BS4- § 70.

<p>In a proceeding by a bank to establish certain notes as a claim against the assets of a corporation in insolvency, evidence held insufficient to establish that the notes were given for a loan to the principal stockholder of the corporation in order to enable him to purchase certain stock of another corporation for his individual benefit, instead of for the corporation, and that the bank had knowledge of such fact.</p>

<p>In a suit to foreclose a first mortgage for $6,000 the defendant F., holding a third mortgage according to the record for $5,000, filed a cross-bill against the defendant H., who held, according to the record, a second mortgage for $9,000 to have his (F.’s) mortgage given priority over H.’s mortgage. The following facts were set forth in the cross-bill or were treated oh the argument by both sides as appearing therefrom: F. had originally owned the land subject to the above-mentioned two mortgages for $6,000 and $9,000, respectively, the mortgage • debt of $9,000 being one for which he (F.) was personally liable on the bond. The record assignees of the $9,000 mortgage were the two daughters of the original mortgagee, their assignment having been kept off the record for a long time. In this situation of affairs F. conveyed the land to the record assignees of the $9,000 mortgage in full satisfaction of the same and took back a purchase-money mortgage for $5,000, and thereupon the new owners took possession and proceeded to collect the rents. The bond and mortgage for $9,000 were not produced at the time of this transaction, nor did F. call for them. The cross-bill did not allege that the record assignees were in any way pecuniarily responsible beyond whatever value^might be placed upon their equity. The result of the transaction if valid was that F. changed his position so as to cease to be owner of the equity subject to $15,000 in possession of the rents, and to become the holder of a mortgage for $5,000 subject only to the first mortgage for $6,000, while his debt for $9,000 was paid. As a matter of fact, when this bargain was carried out the bond and mortgage for $9,000 were impounded in New York in a suit there pending brought by the trustee in bankruptcy of the mortgagee against the record assignees, in which suit a decree had already been made adjudging the assignment fraudulent and void as against the creditors of the mortgagee. After an appeal the bond and mortgage were sold at auction to the defendant H. No notice of any of these proceedings in New York was given to F., nor did he learn of them until long after he had carried out his contract with the record assignees and, permitted them to take possession, collect the rents and give a fourth mortgage on the property for $2,000. The cross-bill alleged most positively that F. acted in entire innocence and in good faith and without any notice of any fraudulent intent on the part of the record assignees.—Held, that the allegations of good faith .and want of notice were not overcome or in any way nullified by the suspicious circumstances set forth in the cross-bill; that U1., in case he proved his cross-bill, which might be a difficult matter, would be entitled to affirmative relief against H., the exact nature and extent of which would be determined upon the final hearing; that the motion to dismiss the cross-bill must therefore be denied.</p>

<p>1. Where a proceeding is brought by a stockholder of a corporation to have it placed under disabilities because of insolvency, whether the complainant is a stockholder, and so entitled to sue, may be tested in a summary ’manner by plea, in case the .suit is commenced by bill, or by answer, in case it is instituted by petition.</p> <p>2. To enable one, as a stockholder, to institute proceedings under the Corporation act to have a corporation declared insolvent, he must be the actual .owner of some of its stock, by virtue of which he has an interest in the assets of the corporation.</p>

<p>Where a testator devised land to his children, subject to the use of one-third thereof by his widow during her life, and also bequeathed to her the income from a certain sum of money while she remained his widow, and made legacies a charge upon the real estate, the land cannot be partitioned until the settlement of the executor’s account, which will show how far the legacies are unpaid from the personal estate and the extent of the lien therefor upon the land.</p>

<p>Evidence in a divorce suit hold to show that the petition was filed by the petitioner in collusion with her husband for the purpose of dissolving their marriage by consent.</p>

<p>The devisees of the résidue of real estate, which is devised subject to a power of sale by the executor, can defeat the exercise of the power by an election to take the land only when all the devisees join in the election, and express such election before sale by the executor.</p>

<p>1. In a suit to enjoin defendant from selling absorbent cotton in packages and under labels resembling- those used by complainants, evidence held to show that defendant’s action in simulating- complainant’s packages and labels tends to mislead the public as to the origin of the goods.</p> <p>2. The fact that the symbol used by complainant to mark and identify its goods had been commonly used by the public for ornamental and advertising- purposes before its adoption by complainant on its label, does not entitle defendant to use- the same label on the same class of goods manufactured by complainant where such use is intended to mislead purchasers as to the origin of the goods.</p> <p>&. Where defendant had occasionally used a certain symbol on some of the packages containing its goods, such use being for ornamentation and not for the purpose of identifying its goods or indicating their origin, complainant is entitled, after having made use of the symbol for the purpose of distinguishing its goods from others, to restrain defendant from employing it in the same manner on similar goods.</p> <p>4. The fact that complainant had formerly falsely represented in its circulars that it had, by act of congress, exclusive right to use the devices which its labels bore, does not disentitle it to relief, the false claim having been withdrawn three years before this suit was brought.</p>

<p>1. Where the by-laws of a beneficial association require that on a change of beneficiary the member shall designate the substituted beneficiary in writing, a person whom the member intended and attempted to substitute as beneficiary, but who has not been actually substituted in writing, is not entitled to the fund, although the association has paid it into court.</p> <p>2. An antenuptial parol agreement by a husband to make the wife beneficiary in a mutual benefit certificate is void under the provision of the statute of frauds that an agreement made in consideration of marriage must be reduced to writing and signed.</p>

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

<p>1. Where a lease to a corporation provided that if any rent should be due and unpaid the lease should become void, and the lessor might re-enter, the fact that after default in the rent a receiver was appointed for the lessee, and the lessor accepted rent from such ■ receiver while he was in, possession, does not of itself constitute a waiver of the right to re-enter for the rent remaining unpaid, but the lessor is not entitled to forfeit the lease until it appears that the receiver is unwilling or unable to pay the overdue rent.</p> <p>2. A covenant not to sell or assign a lease is not broken by an assignment by a receiver appointed for the lessee after execution of the lease.</p>

<p>1. Where a contract with a corporation has been completed by the other party, and the corporation has had the benefit of it, the plea of ultra vires is not admissible to estop the party who had performed from the enforcement of the agreement unless the transaction is contrary to public policy, forbidden by law, or immoral.</p> <p>2. Where bonds of a corporation were not, owing to the character of the corporation’s business, readily marketable, and unavailing efforts had been made to sell them to other parties than the creditor whose debt they were issued to secure, after which such creditor bought them at a price which was not unconscionable, though less than their face value, a director of the corporation was not, in the absence of fraud or unjust advantage, precluded from purchasing the creditor’s interest in the bonds at its market value and recovering the face value of the bonds.</p>

<p>1. A mortgage given as part of a business transaction can be foreclosed only when it secures a* debt.</p> <p>2. Where a debt was past due, and the creditor demanded payment or security, whereupon the debtor tendered and the creditor accepted a mortgage, executed by a corporation on its property, but did not release the debtor or expressly extend the time of payment, the mortgage is supported by a consideration, ■ ■</p> <p>3. In an action on a contract made in a foreign state, the defendant can claim the benefit of the law of that state only by pleading it.</p> <p>4. Accommodation notes given by a business corporation are not valid as against corporate creditors or dissenting stockholders.</p> <p>5. A corporation is estopped to plead that accommodation notes given by it with the consent of all the stockholders were ultra vvi'es, or that a mortgage similarly given to secure such notes was ultra vires.</p>

<p>This is a bill filed by Charles H. Mayer against Samuel Kane and Sarah, his wife. The purpose of the suit is to have declared fraudulent and void two certain conveyances of real estate made by the husband to the wife through an intermediary. These conveyances took place respectively on the 3d of October, 1903, and on the 26th of October, 1903.</p> <p>The complainant is a judgment creditor of Samuel Kane, and has a judgment against him for four hundred odd dollars, which was obtained in 1904,- and under which an execution was issued and levied upon the premises in question.</p> <p>Heard on bill, answer and proofs in open court.</p>

<p>1. Where a conveyance from husband to wife was not fraudulent when made, but the husband afterwards, and after incurring indebtedness, paid taxes on the property, interest on a mortgage which encumbered it, &c., his creditors are entitled to have a charge against the property for such sums.</p> <p>2. Mere delay in enforcing a demand does not constitute laches in a case where the debtor could not be prejudiced thereby.</p>

<p>Heard on bill, answers, cross-bill, replications and proofs in open court.</p>

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

<p>1. A writing admitted to probate was in the form of a letter, and expressed a disposition of property after death, and was called therein a last will and testament.—Held, that if the paper was executed in the manner required by our statute it may be probated as a valid will and testament.</p> <p>2. When there is no attestation clause the proponent of a writing, claimed to be a will, must affirmatively prove all the statutory requisites, including that of publication, which is the declaration by the testator that the writing is his last will.</p> <p>3. Publication may be made by words, or acts or signs, which clearly make known to the witnesses that what they are requested to attest is the testator’s will.</p> <p>4. The evidence before the orphans court justified the inference that the publication was made.</p>

<p>A note payable to an intestate had been inventoried as an asset of her estate. A person, not a party to the note, by petition to the orphans court, asked an order directing the administrator to deliver the note to him. On an order to show cause, petitioner’s proofs tended to show that the note took the place of a previous note made by the same maker to a person previously deceased, which petitioner claimed had been given by her to the intestate for life and on her death to petitioner.—Held, that the orphans court properly refused the order sought, (1) because there was no sufficient proof of the gift which petitioner claimed, and (2) because if sufficient proof had been made the court had no jurisdiction to determine the equitable ownership in the absence of parties who might contest that claim.</p>

<p>1. The statute of distributions having been amended by the repeal of the proviso limiting representation among collaterals to the children of deceased brothers and sisters—Held, that the words “and in case there be no child, then to the next of kindred of equal degree of or unto the intestate and their legal representatives as aforesaid,” are to be read in connection with a prior clause in the act which directs distribution to the next of kindred “in equal degrees or legally representing their stocks,” and that in the distribution of personal property among collaterals representation is limited to the descendants of the stock represented by the surviving next of kin; that if some first cousins are living, being the only next of kin, they constitute the stock entitled to representation, and there being no great-uncles or great-aunts living, first cousins and the representatives of deceased persons of that class take to the exclusion of the descendants of the deceased great-uncles or great-aunts.</p> <p>2. The stock entitled to representation are the descendants of the first ancestor in the ascending line common to the intestate, and all the surviving next of kin, the next of kin being of equal degree, taking per capita, and descendants of deceased members of the class, as representing their stock.</p>

<p>1. ‘ A testatrix will be presumed to have had knowledge of the contents of her will where it appears that it was prepared according to instructions given by her, that, before its execution, it was in her possession long enough to permit her to read it, and after its execution, over night, with ample opportunity to read it, and that, in the morning, she sealed it up in an envelope and delivered it to her son for safekeeping.</p> <p>2. Where a testatrix left nothing to the widow and child of a deceased son (assigning as a reason that they were otherwise amply provided for), but treated her other children with substantial equality— Held, not to show undue influence on the part of her son who was the executor.</p>

<p>The riparian owners of lands along the Passaic river, below the city of Paterson, but above tidewater, are entitled to an injunction restraining the city from polluting the stream by discharging its sewage therein, unless the city shall elect to make them compensation for the injury to their property resulting from such pollution.</p>

<p>Appeal from a decree dismissing a petition for divorce advised by Vice-Chancellor Garrison, whose opinion is reported in 67 N. J. Eq. 534.</p>

<p>1. Where freight charges are due from a consignor to a carrier, the carrier’s lien for the charges is terminated by its delivery of the goods to the consignee, as the agent of the consignor, notwithstanding the fact that the consignee promises to do everything in his power to retain the goods until the charges are paid.</p> <p>2. Where the carrier delivers goods to a consignee, upon his promise to retain possession of them until the freight charges are paid by consignor, if the delivery and promise are to be considered as making the consignee the agent of the carrier, so far as the possession of the goods, is concerned, then the lien for freight charges is terminated upon their payment by the consignor to the consignee.</p>

<p>The defendant agreed, in. writing, to convey certain lands to the complainants for a consideration, which was paid. After accepting the deed, under the supposition that- it conformed to the written agreement, the complainants discovered that there had been fraudulently inserted in the conveyance certain restricting covenants in violation of the terms of the agreement, and a provision that such covenants should be construed as running with the land and that a breach of either of them should cause the lands to revert to the defendant.—Held, that the complainants are entitled to have the deed reformed by expunging the covenants from it, notwithstanding that they might have discovered, by an examination of the deed before acceptance, that the conveyance was not such a one as they had bargained for. ■</p>

<p>On appeal of Daniel Y. Snmmorill, Jr., from a decree in chancery advised by Yice-Chancellor Grey, whose opinion is reported ante p. @b8.</p>

<p>When caveats are filed against the probate of a will service of citations upon the caveators and upon those propounding the will for probate vests in the orphans court of the proper county complete jurisdiction over the question of probate.</p>

<p>On appeal from a decree of the court of chancery.</p>

<p>1. An order of an orphans court (made after hearing upon an order to show cause) reciting that it appeared that a guardian had not paid over certain moneys to the party entitled, as directed by a previous order of the court, and that the guardian had willfully contemned the authority of the court, and thereupon ordering that the guardian be attached for contempt of court, and that an attachment do issue forthwith, &c.—Held, in view of the practice of the court, not to be a definitive adjudication upon the question of contempt, but an interlocutory order, based upon the apparent guilt of the guardian, and directing- an attachment to issue for the purpose of bringing her before the court to answer therefor.</p> <p>2. An appeal from the orphans court to the prerogative court being allowed by statute only to a “person aggrieved” (P. L. 1898 p. 198 § 204) —Held, that by an order for the issuance of process of attachment, to bring in the party to answer for an alleged contempt, the party accused is not aggrieved so as to be entitled to an appeal, following GoryeTl v. Holcombe, 9 N. J. Eq. (1 Stooh.) 650.</p>

<p>1. An assignment of an account not yet due, if absolute in form, is not to be construed as a mere covenant to pay out of the fund because the assignor therein agrees to act as agent of the assignee in collecting the money.</p> <p>2. A corporation assigned as collateral security for a debt the first payment on an executory contract for two condensers to be made by it; one condenser was substantially completed and actually delivered to the vendee prior to the appointment of a receiver of the vendor corporation, and the price was subsequently paid to the receiver.—Held, that the assignee was entitled to the fund to the extent of the price of the condenser actually delivered as far as needed to pay the debt secured.</p> <p>3. As between an assignee of a fund under an equitable assignment and the receiver of the assignor,' an insolvent corporation, notice of the assignment to the debtor or holder of the fund is not necessary to perfect the title of the assignee.</p>

<p>On appeal from a decree advised by Vice-Chancellor Garrison, whose opinion is reported 'ante p. 398.</p>

Armstrong, deceased. The attack upon the decree in this court is confined to two ;points, viz., (1) that at the time of the execution of the paper-writings in question, Obadiah P. Armstrong, who executed them, •was not possessed of capacity to make a testamentary disposition of his estate, and (2) that the same were executed by him under the pressure of undue influence.

<p>A court of equity has jurisdiction to entertain a suit for the recovery of the amount due upon a lost check, wliich is not negotiable for lack of endorsement.</p>

<p>Equity has jurisdiction on an information by the attorney-general, at the relation of a private party, to annul a lease of the state’s lands under water obtained by a person not the owner of the shore front, through a false representation of the fact.</p>

<p>On appeal from an order of the court of chancery advised by Vice-Chancellor Pitney, whose opinion is reported in £7 N. J. Fq. 159.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Grey, whose opinion is reported anle ¶. 218.</p>

<p>On appeal from an order advised by Yice-Chancellor Emery, whose opinion is reported in 68 N. J. Eq. 189.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported ante p. 89.</p>

’ On appeal from a decree in chancery based on opinions filed by Vice-Chancellor Stevens and Vice-Chancellor Garrison, whose opinions are reported, respectively, ante p. 626 and in 68 N. J. Bq. 490.

<p>On appeal from an order dismissing order to show cause, advised by Vice-Chancellor Bergen, whose opinion is reported in 68 N. J. Eg. Jf80‘.</p>

There is a declaration of no set-oE from one of the -previous owners of the equity of redemption which states the amount which at the time of that declaration was due on the mortgage. The complainant accepts that admission of the party who then held the equity of redemption as an ascertaining of the amount due, and claims that admitted amount as the principal sum due, with interest from that date. There is no proof on the part of the defendant that he has paid anything.

<p>On appeal from a decree of Chancellor Magie, whose opinion is reported in >38 N. J. Fq. Jfi.</p>

<p>On appeal from an order in chancery striking out a demurrer to a bill.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Pitney, whose opinion is reported in 68 N. J. Eq. 160.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Bergen, whose opinion is reported ante p. 848.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Bergen, whose opinion is reported in 6S N. J. Eq\ 4S7.</p>

<p>On appeal from a decree of the court of chancery advised by yice-Ohancellor Bergen, whose opinion is reported in 68 N. J. Eq. M2.</p>