Volume 73 — New Jersey Equity Reports

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

On motion to vacate order. A final decree for an injunction was filed in the above cause on August 3d, 1907. On August 13th, 1907,- an injunction was sealed and issued from the clerk’s office. No direction or order for the writ had been made, either under Rule 118 ot Rule ISO. On August 13th, 1907, a notice of appeal from the decree was filed, of which due notice was afterward given to defendant.

<p>On exceptions to master’s report.</p>

<p>On petition of defendant for custody of children and order to show cause and affidavits on each side.</p>

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

<p>On order to show cause upon, bill and affidavits and answer and affidavits.</p>

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

<p>Testator in one clause of his will gave a sum of money to trustees, to pay the income to his daughter O. during her life, and directed that on her death the fund should be divided among her children, and provided that in case no children survived her she might dispose of the fund by will. Another clause gave the residue of the estate to testator’s wife. C. died without issue, and without exercising her power of appointment by will. At the date of the execution of the will O. was thirty years of age and unmarried. Another clause of the will provided that, in case of the death of a certain legatee for life without issue, the fund given such legatee should go over to testator’s children. — Held, that testator supposed that the power of disposition given to C. resulted in an absolute final disposition of the fund, and the gift of the residue did not include the legacy to C., but as to the same testator died intestate.</p>

On final hearing on cross-bill and answer thereto. This cause was before the court on final hearing between the complainanf's predecessor in office and the defendant, as reported sub nom. Campbell v. Perlh Amboy Shipbuilding and Engineering Co., 70 N. J. Eg. (4 Robb.) 40, and on appeal was affirmed, as reported in 71 N. J. Eg. (1 Buch.) SO2.

On motion for preliminary injunction. Heard on bills and affidavits, answers and affidavits, and depositions in open court.

<p>On accounting in partition suit.</p>

On application for preliminary injunction. Heard on bill and affidavits, answers and affidavits and affidavits in reply.

On final hearing on pleadings and proofs. The original bill in this case was filed on November 22d, 1893, by Mrs. Powell against the executors of the will of George D. Randall, and also against his children, Mrs. Yearance, Edith and Frederick L., devisees and legatees of his residuary estate under his will.

<p>1. Equity will restrain the violation of a covenant entered into by a grantee, restrictive of the use of lands conveyed, not only against the grantee covenantor, but also against all subsequent purchasers with notice of the covenant, whether it run with the land or, not; but, if the original grantor does not bind himself, then his grantee, having no right of action against him, cannot pursue any other grantee to whom the original grantor may subsequently convey the whole or a part of the remaining lands.</p> <p>2. Complainant lost her right to enjoin defendant from running a bottling factory in violation of a covenant restricting the use of land by acquiescence where for several years she did not seek to enforce it, but did not lose the right to enjoin an extension of the business.</p>

<p>In a suit by a purchaser against a vendor to compel the specific performance of a written agreement to convey land, the complainant, to entitle himself to relief, need not show that the purchase-money was tendered prior to the commencement of the suit.</p>

<p>1. Where the original assignment of a preparation compounded by assignor to relieve neuralgic pains gave no authority to use either the name- or picture of assignor, that assignor may have otherwise given a license to use his picture and certificate to his assignees, being persons whom he knew and in whom he reposed confidence, would not entitle subsequent assignees, whom he did not know, to the same privilege.</p> <p>2. An injunction will lie to restrain the unauthorized use of one’s name by another as a part of its corporate title, or, in connection with its business or advertisements, his picture and his pretended certificate that a medicinal preparation, which such other is engaged in manufacturing, is compounded according to the formula devised by him, though he is not a business competitor.</p>

<p>Upon the question raised by the demurrer, whether the facts exhibited in the bill justify the complainant in instituting this suit without first making demand upon the directors to do so, the record of the proceedings on that subject in the case of Siegman v. Maloney, 35 E. J. Eq. (20 Dick.) 372, and also the case of Appleton v. American Malting Co., 35 N. J. Eq. (20 Dick.) 375, examined, commented on and the ruling in the former case followed.</p>

<p>Upon the question whether certain moneys lent to a corporation called the Ecuador Company by P., one of its stockholders, and not paid to it by him on account of his stock subscription, as already found by this court, were secured to be repaid to him by the pledge of certain shares of the preferred stock of a railroad company called the Guayaquil and Quito Railroad Company, which were subject to the exercise of the power contained in a trust instrument executed to trustees by the Ecuadorian Association, Ltd., to which preferred stock the complainant claims title under an assignment from P., evidence examined, and held (1) .that the pledge was incomplete and that whatever right P. or his assignee, the complainant, may have to such preferred stock, rests on a promise to transfer and not on an actual transfer of such stock, and that such promise being for a by-gone consideration and not for a present or future consideration, will not be enforced in equity, inasmuch as equity only compels the performance of contracts based on valuable consideration, and the rule is that a by-gone consideration cannot be made a good consideration for a promise; and further held ,(%) that if such preferred stock were pledged to P., such pledge 'was not authorized by the power contained in said trust instrument.</p>

<p>1. A testator gave real and personal estate to trustees in trust to apply the income to a daughter for life and on her death to transfer the corpus to persons named under conditions set forth. — Held, that the trustees acquired the legal title to the estate, requiring them at the proper time to pay over the personalty to the final takers and to convey the real estate to them.</p> <p>2. The court of chancery will not instruct testamentary trustees as to their duties as to the trust estate in their hands until the time for payment and transfer of the same has arrived, when the parties to be affected by the action of the trustees are entitled to be heard.</p> <p>S. A testator gave real and personal estate in trust to apply the income to a daughter for life and on her death to transfer the corpus to persons named, subject to the exercise by the daughter of the power to appoint the entire corpus among a class of relatives designated in the will, or to appoint the entire corpus to her surviving husband, or to appoint a life estate either in the whole income or any part thereof to the surviving husband. — Held, that the powers vested in the daughter were independent of each other, and she might exercise the power of providing for the. sup-, port of her husband out of the income of the trust estate, without undertaking by the exercise of any other power to interfere with the final disposition of the corpus which the testator made, or she might appoint the corpus absolutely to the relatives mentioned in the will, without mentioning her husband’s name, or giving him any interest in either income or principal, or she might appoint the income to her husband and the corpus to the relatives of the class named.</p> <p>4. A power vested in a beneficiary of the income of a testamentary trust estate for life to appoint either tlie corpus of the estate to her surviving husband absolutely, or to create by appointment a life estate in him in the income of the estate, does not violate the rule against perpetuities, though the surviving husband may have been born after the death of the testator.</p> <p>5. Where the power vested in a beneficiary of the income of a testamentary trust estate for life to appoint a life estate in the income thereof to her surviving husband is valid when taken by itself, the power is not rendered invalid by any invalidity in the attempted exercise of the power to appoint the disposition of the corpus of the estate after the husband’s death.</p> <p>6. A testator gave real and personal estate to trustees to apply the income to a daughter for life and on her death to transfer the corpus to persons named, subject to the exercise by the daughter of the power to appoint the corpus among a class of relatives, or the power to appoint the entire corpus to her surviving husband, or the power to appoint “a life estate either in the whole income or any part thereof” to the surviving husband.' — Held, that the daughter had no power to appoint the corpus of the estate for the life of her surviving husband, but could appoint to her husband an absolute estate in the corpus, so that on her death the trustees would be obliged forthwith to transfer to the surviving husband the corpus of the trust estate.</p> <p>7. The daughter executed a will “intending thereby to execute the power” in the will of the testator, and gave to her husband her estate for life, with the remainder over to her children. — -Held, that the daughter gave to her husband only the income of the trust estate for his life, and the trustees under the will of the testator could retain the estate in their hands, and collect the income thereof, and pay it over to the husband for life.</p>

<p>1. A purchaser at an execution sale of the title of the debtor in real estate, held by him and his wife as tenants by the entirety under a conveyance executed after the passage of the Married Woman’s act, acquires a freehold, and the sheriff’s deed gives him the same title which a deed executed by the debtor would have given.</p> <p>2. A conveyance of land, after the passage of the Married Woman’s act, to husband and wife, creates in them an estate in entirety, gives to each a right to a half of the rents and profits, and vests in each a freehold estate corresponding to the rights of each.</p> <p>3. Courts of equity are.averse to appointing receivers of land held by tenants in common, who cannot agree on the management of their estate, though receivers have been appointed, where the sole object was to secure a receiver and the collection and equitable division of the rents and profits.</p> <p>4. Where a purchaser at an execution sale of the title of the debtor in realty, held by him and his wife under a conveyance executed after the passage of the Married Woman’s act, is excluded by the debtor and his wife from participating in the rents, and the debtor and his wife, who-are insolvent, collect the rents, the purchaser may obtain a decree for an accounting, the payment to him of his share of the rents and the appointment of a receiver.</p> <p>5. A bill by one tenant in common for the appointment of a receiver, because of his exclusion from the possession and enjoyment of the land held in common, may be amended on his application so as to contain a prayer for partition.</p>

<p>1. Injunction is the proper remedy to restrain a railroad company from taking complainant’s property without compensation, not because an injunction will issue to restrain an ordinary trespass, but to protect the property owner’s constitutional right against aggression.</p> <p>2. Where a railroad company may condemn land for.railroad purposes, an injunction will be issued at the suit of a private property owner to restrain the company from taking or using the land without first making compensation only where the corporation is willfully proceeding in violation of the owner’s constitutional right.</p> <p>3. Where a railroad company has entered private property to appropriate the same without first having proceeded to condemn it, the property owner may sue at law every day for damages for the trespass, or he may maintain ejectment.</p> <p>4. A constitutional right differs from a right conferred by the common law or by statute only in the fact that it is guarded from any attack or interference by the legislature, or any other governmental agent, and is not entitled by its nature to protection by injunction to a greater extent than any other right.</p> <p>5. A railroad, under the belief that a satisfactory arrangement would be reached for the taking of complainant’s land for a tunnel, delayed condemnation proceedings, and prosecuted the work up to complainant’s property line before he made complaint to any court. The railroad proposed to tunnel through solid rock in complainant’s land fifty feet below the surface without affecting the enjoyment of complainant’s building, and without any intent to evade its duty to pay complainant’s compensation, which it stood ready, willing and able to- do. — Held, that though defendant was a trespasser in taking complainant’s land without first making compensation, an injunction restraining defendant’s construction would be refused on condition that defendant pay a satisfactory sum into court to guarantee complainant just compensation, and diligently prosecute condemnation proceedings.</p>

<p>On motion for 'a preliminary injunction. Heard on bill and affidavits and answering affidavits.</p>

<p>1. g Gen. 8tat. p 1961 is valid in so far as it creates a lien on a vessel for supplies and repairs, but is invalid so far as it attempts to provide for the enforcement of the lien by proceedings in the nature of proceedings in rem in admiralty, as .the lien is maritime, and under the constitution and laws of the United States the jurisdiction of the federal admiralty court of sucli proceedings is exclusive.</p> <p>2. The recognition by the court of chancery of this state of a lien for coal furnished a vessel on ■ a fund in the hands of receivers arising from a sale of the vessel, and the ordering of that fund paid over to the lien-holder, is not an exercise by that court of the jurisdiction to enforce liens by proceedings in rem, which, is vested exclusively in the courts of admiralty.</p> <p>3. A lien claimed for coal furnished for the use of a steam tug is within 2 Gen. 8tat. p. 1961, giving a lien for supplies, provisions and stores furnished for the use of a ship or vessel.</p>

<p>1. A junior judgment creditor, who by superior diligence procures an execution and places it in the hands of the sheriff prior to such a proceeding by a senior judgment creditor, acquires a lien superior to the lien of the senior creditor.</p> <p>2. A junior judgment creditor, who files a bill to set aside a conveyance made by the debtor as fraudulent and to subject the land to his judgment, and who obtains a decree in his favor, acquires a lien superior to the lien of a senior judgment creditor, who by virtue of an execution under his judgment previously sold the land, though the legal title thereto was not in the debtor.</p> <p>3. Where the proceeds of a sale of the land of a debtor under an order directing that the proceeds shall be paid into court for distribution between judgment creditors are in court, and the parties in interest are before it, an order for distribution will be made without the giving of notice of a hearing thereon.</p>

<p>1. A testator being the owner oí a one-third interest in a saw-mill property, by his will ordered it sold, “and the money paid over to my wife. Charity, for her use, and I also will her all my personal property that I am possessed of,.and if there should be anything left after her death then I want that divided also with the money from the house and lot.”</p> <p>2. Upon the question whether the wife took an absolute estate, or only a life estate, in the proceeds of the saw-mill and the personal property— Iteld, that she took only an estate for life.</p>

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

<p>1. Where the assets of an insolvent corporation are not sufficient to satisfy its debts, a creditor holding collateral insufficient to pay his entire claim is entitled to treat the same as security for the entire claim and to receive dividends out of the assets on the entire amount due at the time the corporation was declared insolvent, and not only on the balance remaining after deducting the value of the collateral.</p> <p>2. Corporation act, section 80 (P. L. 1896 p. 804), providing that creditors of an insolvent corporation shall be paid proportionately to the amount of their respective debts, excepting mortgage and judgment creditors, when the judgment has not been by confession or for the purpose of preferring creditors, does not require the surrender of collateral by a secured creditor as a condition to his right to dividends on the whole amount of his claim.</p>

On bill for'relief. On petition by landlord to bave proceeds of tenant’s chattels, sold under execution, applied to payment of rent.

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

<p>On bill for injunction to restrain an action at law.</p>

<p>Under a will giving testator’s wife the income for life, and showing intention that on her death the estate pass to his children, the discretionary power given the executor to sell and- reinvest in real estate sufficiently productive to pay income is limited to the life .of the widow.</p>

<p>Under P. L. 1906 p. S69, providing that a purchaser of real estate at foreclosure sale, &c., shall be relieved from his bid if before delivery of the deed he satisfy the court of the existence of any substantial defect in or cloud on the title which would render the title unmarketable, or of the existence of any lien or encumbrance thereon, unless a reasonable description of the estate or interest to be sold and of the defects in the title and liens or encumbrances thereon, with the approximate amount thereof, be inserted in the notices, and advertisements of sale and in the conditions of sale, expenses incurred in procuring searches showing .the state of a title since the date of a mortgage were necessary for the proper foreclosure thereof, and taxable under rule 113a in favor of the party foreclosing the mortgage, though expenses incurred in searching the title anterior to the date of the mortgage were not taxable.</p>

<p>1. Where it was understood between a corporation and defendant that, subject to a first mortgage, he should have a lien for money advanced, not to be enforced before October 1st, 1905, unless some other creditor either sued or threatened suit, -and June 2d, 1905, the directors authorized such a bond, and defendant drew one payable. October 1st, 1905, believing it could be entered any time, upon ascertaining that it could not be entered until that date, tbe officers coulfl execute a new bond expressive of the understanding without further authorization from the directors.</p> <p>2. Evidence held insufficient to show a bond was given by a corporation while insolvent or in contemplation of insolvency, within Corporation act (P. L..1898 p. 298 eh. 185 § 6J/), making conveyance under such circumstances void, or that there was an intent to cheat, defraud or give undue preference.</p>

<p>On demurrer. Bill by vendee against vendor for specific performance of a contract for the sale of land. Demurrer by ' defendant.</p>

<p>Where the facts set forth in a bill show that complainant has an estate in. lands which cannot be ascertained in a pending action at law against her, but can only be asserted in a court of equity, further proceedings in the law court will be suspended until a decree may be had in equity.</p>

On demurrer. Tlie bill is filed by complainant to procure a decree declaring his marriage with defendant null because of her prior marriage. Defendant demurs on the ground that the bill fails to aver as a fact that at the time of the marriage now sought to be annulled complainant was in ignorance of the fact that defendant had a husband then living.

<p>Ombill for divorce.</p>

<p>A bill was filed to quiet title against but one of the children of a person named, counsel for complainant not being aware of the existence of others. No testimony was offered on behalf of defendant, though he was represented by counsel, and an answer was filed, and a decree was entered for complainants. Subsequently a similar bill to quiet title was filed by the same complainants against the remaining children, and the same issues were raised. In the second suit there was a verdict for complainants, and, on the same being ordered to be set aside and the granting of a new trial by the court of chancery, there was an appeal to the court of errors and appeals. — Held, on a motion to open the decree in the first suit, that as the appeal in the second suit was then pending in the court of errors and appeals, and as the first suit was practically undefended, the decree therein would be opened on condition that the court of ^errors and appeals granted a new trial in the second suit, and on the further condition that defendants should consent in such event to the consolidation iof the two suits, should complainants desire it.</p>

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

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

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

<p>1. Neither a corporation nor a shareholder on its behalf can complain of a fraudulent transaction to which all the stockholders assented with full knowledge of the facts.</p> <p>2. A subsequent transferee of shares in a corporation, who was deceived by false representations touching the capitalization of the company, sustains an injury purely personal to himself, and not to the collective rights of the stockholders.</p> <p>3. The principle that a corporation cannot complain of a transaction to which all of its stockholders absented is inapplicable unless the assent was that of the real parties in interest.</p> <p>4. Defendants, as promoters of a consolidated corporation, procured options for the purchase of the property to be consolidated for $1,400,000, and, representing that the cost of these assets was $1,900,000, organized a syndicate to raise such amount, under an agreement by which the syndicate members were to receive syndicate shares each exchangeable for $10,000 of the mortgage bonds of the new company, which was to mortgage its assets for $2,500,000, and $10,000 stock as a .bonus; the total capital stock being $5,000,000. — Held, that the members of the syndicate in effect were the stockholders of the new company for whom the promoters acted as trustees, and that the promoters were therefore accountable to them for the secret profit made by them in the purchase of the assets.</p> <p>5. The new corporation having refused to sue the promoters to recovei such profit, transferees of stock were entitled to sue in their capacity as stockholders on behalf of the corporation on grounds of public policy.</p> <p>6. Stock in a corporation, issued as a bonus with the sale of bonds or stock issued through the means of overvaluation of the property, is not necessarily fraudulent as between the stockholders, in the absence of intervening rights of creditors.</p> <p>7. In a suit to recover illegal profits made by promoters in the organization of a corporation, the non-joinder of a trust company alleged to have participated in the fraud cannot be made a ground for demurrer to the bill.</p> <p>8. Where complainants were entitled to sue in their capacity as stockholders of a corporation to recover illegal profits made by promoters, and the bill prayed that defendants be decreed to pay such profits to the corporation, an allegation describing complainants as “stockholders and bondholders” of the company, and as filing the bill for and on behalf of them; selves and all other bondholders and stockholders, other than the defendants, of the corporation, who should come in and contribute to the expense of the suit, should be amended by eliminating the word “bondholders.”</p>

<p>Oil bill for receiver.</p>

<p>On bill to quiet title. Motion to settle issue at law.</p>

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

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

<p>1. Where a corporation is losing money in the carrying on of its business, and is seriously embarrassed for want of funds to cany out the project for which it was organized, and is without available assets to pay its present indebtedness, notwithstanding there may not have been a complete suspension of its business, it is insolvent within the meaning of the Corporation act of 1896 (P. L. 1896 p. 298 oh. 185 § 65), providing that when any corporation shall become insolvent, or suspend its ordinary business for want of funds to carry on the same, any creditor may apply to the court for an injunction and the appointment of a receiver, and that, if upon the hearing it shall appear that the corporation has become insolvent and is not about to resume its business, the injunction may-issue and the receiver be appointed, and hence is subject .to the issuance of an injunction and the appointment of a receiver.</p> <p>2. That creditors of an insolvent corporation may have instituted the proceedings for the appointment of a receiver authorized by the Corporation act of 1896 (P. L. 1896 p. 298 eh. 185 § 65),'with the ulterior purpose of securing control of the affairs of the corporation, will not defeat the same.</p>

<p>1. A legacy is chargeable upon lands devised by the same will where the personal estate has been exhausted.</p> <p>2. On a bill to charge a legacy upon devised lands the executor is a necessary party.</p> <p>3. Where, on a bill to charge a legacy upon devised lands, no objection was made until all the testimony was taken upon final hearing that the executor was not made a party, complainant will be allowed to amend the bill by adding the executor as a party defendant, it appearing that the amendment was necessary to the ends of justice, and will in no way em-. barrass defendant’s right of defence.</p>

<p>On motion for the appointment of a receiver for the Atlantic Eubber Shoe Company. On bill, answer and affidavits.</p>

<p>1. By his will a testator gave and devised the residue of his estate to his executors in trust: “Fourth. — After the death of my wife I authorize and empower my surviving executors to sell any and all of my land and property that may remain to the best advantage, and out of the proceeds of such sale to pay off any bonded indebtedness on my homestead and Market street property, if any remains, and when such indebtedness is all paid off and discharged, then I dispose of the residue and remainder of my estate as follows:” (indicating the manner in which the same was to be disposed). Upon a bill filed by one of the testator’s children beneficially interested in his residuary estate, after the payment of all his indebtedness, seeking partition of the testator’s lands still undisposed of, and which were unencumbered; claiming that the complainant was a tenant in common of the legal estate and entitled to an undivided part thereof— Held, that the power of sale still exists; that it extends to the whole of the real estate and all the undivided interest therein, and that the complainant had no standing in court to call for a partition.</p> <p>2. The complainant cannot elect to take her share in speeie, and so in effect cancel the power of sale created by the will, the rule being that a power of sale will not be defeated by one or more, less than the whole number of beneficiaries, to the prejudice of any of them.</p>

<p>To warrant a mandatory injunction the invasion of complainant’s rights must be substantial or the damage irreparable, the right thereto must be clear, and there must exist an urgent necessity for the issue of the writ, and an injunction to compel defendant to remove obstructions from a water course will be denied, where the controversy centres about the ownership of land, the affidavits do not set out a title in either party which would support ejectment, defendant has been in possession nearly sixteen years, complainant and his predecessors do not seem ever to have been in possession, the obstructions have been erected fifteen years, no proceedings have been heretofore taken to remove them, they are in daily use in ■’onducting defendant’s business, a bulkhead, one of the obstructions, cost $10,000, it would cost $4,000 to remove it, its removal would hamper defendant in handling seven thousand tons of coal daily, and the land cannot be used for farming or commercial purposes, being a sunken meadow.</p>

<p>1. Laws of 1902 (P. L. 1902 p. 268 § 7) provide that when the court of chancery has jurisdiction over the custody of minor children of parents living separate, and the children are residents of the state, they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same, unless the court on cause shown shall otherwise order. A husband living separate from his wife brought habeas corpus for the custody of his minor children, residents of New Jersey. The husband was a resident of New York. A child fourteen years old testified that she preferred to live with her mother. The other children, aged eleven and nine, and who were intelligent, stated on their examination that they desired to remain with their mother. — Held, that the court could not order the removal of the children from the state in the absence of any special reason therefor.</p> <p>2. The court on habeas corpus proceedings by a husband living separate from his wife, for the custody of their minor children, cannot impose on the husband residence in the state as a part of a decree awarding him the custody of the children.</p> <p>3. The court on habeas corpus proceedings by a husband living separate from his wife, for the custody of their minor children, may, as authorized by P. L. 1902 p. 264 § 12, decree to the husband the right of access to the children, though he does not specifically pray therefor in his petition.</p> <p>4. The court on granting to a non-resident husband the right of access to his children in the custody of his wife, from whom he had separated, would prohibit the mother from taking the children beyond the limits of the state without a special order therefor.</p>

<p>1. Complainant was the owner of a tract of land in defendant city, which had its surveyor make an official block and lot map of the city, and thereafter adopted the map so made. Complainant subsequently platted the land and sold a number of lots, some of which fronted on streets delineated on the official map, which was referred to in the deeds. — Held, that neither the making nor the adoption of the map was sufficient to evidence an acceptance of a subsequent tender of dedication, if any, of the Streets.</p> <p>. 2. While a tender of -a dedication of streets and alleys on platted land c'annot be revoked, but may be accepted by the municipality at any time, yet, until acceptance, the fee title and control of the property remain in the dedicator.</p> <p>3. Until a tender of a dedication of streets on platted property is accepted by the city, the latter has no right to interfere with the use by the dedicator of land lying within the lines of the streets.</p> <p>4. The burden of proving acceptance of a dedication of streets on platted land is on a city alleging it.</p> <p>5. Where the owner of platted land sought to enjoin a city from interfering with his use of land lying within the lines of streets laid out on a map of the property, an answer, alleging a tender of dedication of the streets and acceptance by defendant, and setting out the acts of acceptance on which defendant relied, did not, of itself, operate as an acceptance of the alleged tender.</p>

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

<p>1. A legatee is a person interested within the provisions of section 116 of the Orphans Court act (P. L. 1898 p. 75), authorizing any person interested in the estate, in case of failure to make settlement, to cite the executor, administrator, guardian or trustee to make such settlement in case of such default.</p> <p>2. At the coming in of a citation issued pursuant to said section, an executrix cannot evade the duty of accounting for her testator’s estate by setting up payments to herself by way of bills for medical attendance upon the legatee, and for her funeral and burial expenses paid by said executrix, and for care, nursing, attendance, board and lodging furnished to the legatee.</p> <p>3. Such a proceeding is not within the third section of said statute conferring jurisdiction upon the orphans court in suits for the recovery of legacies, but is a simple claim for an accounting from an executrix by a legatee who had not been shown to have receipted or released her legacy.</p>

<p>In a proceeding to probate a will, evidence examined, and held insufficient to establish the genuineness of the signature.</p>

On appeal of Wolke Erey from a decree of the Hudson county orphans court, upon exceptions to the account of Emma R. Erey, administratrix of Peter N. Erey.

<p>1. Tlie court having power under Orphans Court act 1898, section 197 (P. L. 1898 p. 789), in a cause respecting the probate of a will, in which probate was refused, to order both costs and expenses to be paid by the person propounding the will, or to be paid out of the estate, such proponent, may not complain that the court, while imposing the expenses on the estate, imposed the costs on him.</p> <p>2. The unsuccessful proponents of a will may not complain of the refusal to allow them their expenses, there being no power to impose the expenses of that unsuccessful litigation on the estate.</p> <p>3. The court, on an unsuccessful appeal from the refusal by the orphans court of probate of a will, has no power to allow proponent counsel fees in the appellate court.</p>

<p>The New York Baptist Union for Ministerial Education furnished means of instruction to young men of the Baptist denomination, without reference to residence, who should give satisfactory evidence to their church and to the trustees of the society .of their personal piety and of their call to gospel ministry. The Baptist Educational Society of the State of New York furnished means of instruction to young men of the Baptist denomination who gave satisfactory evidence to their church and to the board of trustees of their personal piety and call to preach, and was similarly supported. The American Baptist Home Missionary Society was organized to promote the preaching of the gospel in North America. Its constitution provided for officers and members, and that all money or property contributed and designated for any particular field should be used as appointed or returned to the donors. It had no other purpose than the extension of gospel preaching. — Seld, that all three were religious institutions not confined in their operations to local or state purposes, but for the general good of' the people interested therein, and were therefore exempt from payment of the collateral inheritance tax imposed by the laws of 1898. P. L. 1898 p. 106.</p>

On appeal of the Pennsylvania Eailroad Company, and cross-appeal of the borough of Metuchen from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 71 N. J. Eq. (1 Buck.) Ji-OJ/..

<p>1. The joinder of issue by complainant in equity upon defendant’s plea is an admission of its sufficiency as a complete defence to the case made by the bill, and where, after such joinder, the facts alleged in the plea are sustained by proof, defendant is entitled to a decree dismissing the bill upon its merits, regardless of whether or not the plea constitutes a valid defence to the suit.</p> <p>2. Where a plea contains several distinct allegations of fact, all of ■those allegations which are material must be supportéd by the proofs or the plea will be overruled .as false.</p>

<p>On appeal from an order of the court of chancery.</p>

74, under which the sheriff levied on two hundred and forty-one shares of the capital stock of the Empire Rubber Manufacturing Company, which was appraised by the sheriff and persons selected for that purpose by him, at $100 per share, and after setting off to the defendant two shares to satisfy the exemption allowed him as a debtor having a family, the residue was, on October 11th, 1903, sold by the sheriff at public auction for $50; that there yet remains due on said…

<p>On appeal of Rachel VanHouten and others from a decree advised by Vice-Chancellor Bergen, whose opinion is reported in 71 N. J. Eq. (1 Buck.) ¡626.</p>

<p>The facts in this case fail to establish a resulting trust.</p>

The case involves the construction of the will of Robert E. Oram. The paragraphs involved are the second, third, fourth and fifth. They read as follows: “Second.

<p>On appeal from an order advised by Vice-Chancellor Garrison, whose opinion is reported in 72 N. J. Eq. (2 Buck.) 665.</p>

wife upon the ground ■of adultery. The charge is based upon the fact that she was delivered of a child, which must have been conceived, according to the evidence in this cause, at a time when the husband did not have access to his wife, and as a consequence the child is not his child, but the child of a paramour of the defendant, not disclosed. “The presumption is, and as I understand the law to be, that a child born in wedlock is the child of the married people.

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Bergen.</p>

the following opinion: “This is a bill filed by Annie H. B. Howe, charging that she is the owner of a house in the city of Orange; that the city of Orange owns and maintains a system of public water-supply for the benefit of the inhabitants; that on Saturday, May 6th, 1905, the complainant was notified by the clerk of the water department of the city of Orange that water would not be supplied to the premises until a bill of $201.39 for water previously supplied thereto had…

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Pitney, whose opinion is reported in 71 N. J. Bq. (1 Buch.) 'JfSl.</p>

On appeal of the Metropolitan Bank. On appeal from an order of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 71 N. J. Eq. (1 Buck.) 541.

<p>On appeal of V. J. Hedden So Sons Co. On appeal from an order of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 71 N. J. Eq. (1 Buck.) 5^1.</p>

On appeal nf John F. Sayward and others. On appeal from an order of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 71 N. J. Eq. (7 Buck.) 541.

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported in 'll N. J. Eq. (1 Buch.) W'l/..</p>

On bill for the construction of the following instrument admitted to probate as the will of Fortunata Borella, by the surrogate of Hudson county: “I the undersigned Fortunata declare this will to leave to these heirs. to my son Pierino dollars two thousand........ $2000.00 to my daughter Maria I say one thousand....... 1000.00 to my daughter Carolina I say one thousand.... 1000.00 to my daughter Angiolina I say one thousand.... 1000.00 “With the above legacies I leave them…

<p>1. Under the amendment to the General Railroad law passed March 4th, 1879 (Gen. Stat.. p. %61$ § 1/.6), the state treasurer cannot pay out the funds or any part thereof paid into the state treasury thereunder By a railway company by virtue of an assignment made by such company which afterwards becomes insolvent.</p> <p>2. The construction of such amendment by the supreme court in Will-son v. Swaim, GO N. J. Law (81 Yr.) 115, adopted and followed.</p>

<p>On bill for the construction of the will of Henry Lembeck, deceased, and instruction to executors and trustees.</p>

<p>On settlement of decree.</p>

<p>On motion to discharge orders of revivor.</p>

<p>On bill for partition. On application for order of distribution.</p>

On bill for injunction. Heard on bill, answer, replication and proofs. Defendant, the lessee and occupant of an entire four-story building, on August 7th, 1902, leased to the complainant “the second, third and fourth floors of the four-story brick building No. 157 Market street, with the appurtenances,” from October 1st, 1902, until April 1st, 1909, for the yearly rent of $1,200, payable in equal monthly installments, monthly, in advance.

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

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

<p>1. Although this court may compel railroad companies whose roads cross streets at grade, and whose charters contain provisions like those of the defendant, to elevate or depress their tracks or the highways crossing them, yet the question remains whether, in the given case, the situation is such that the court should, in the exercise of its power to regulate conflicting easements, compel the change, and if their tracks are to be elevated or depressed it must be because of some peculiarity which makes them specially dangerous.</p> <p>2. There is no repugnancy between the provisions of P. L. 1903 § 28 making it the duty of every railroad company “to construct and keep in repair, good and sufficient bridges and passages over, under and across the railroad or right of way where any public or other road, street or avenue shall cross the same,” and section 27 of the same statute, which provides that where any railroad shall cross any street or highway in any city it shall be either above or below the grade thereof, inasmuch as section 26 refers to railroads already laid in any street; and section 27, to railroads to be laid, and not to additional tracks.</p> <p>3. If safe and convenient use will not permit of a grade crossing, then it is the duty of the railroad company to cross in some other way.</p> <p>4. In determining this question, however, the court cannot start out with the assumption that all grade crossings are unsafe, for the legislature has said otherwise.</p> <p>5. In a suit for an injunction, evidence examined, and held that defendant should not be restrained from laying one of three proposed additional tracks at grade where they cross a public highway, but that an injunction should issue restraining the defendant from laying the other two of such additional tracks.</p>

<p>1. In a suit by riparian owners against a city to enjoin the city from polluting the water of a river, unless compensation was made, evidence examined, and held to show that the city had not acquired a prescriptive right to pollute the stream.</p> <p>2. A. city is not responsible for so much of the street wash as goes into a stream from the surface of the streets, though more will in time of rain, on account of the paved surfaces preventing absorption by the soil, pass into the stream, but it is responsible for so much of the street wash as it by artificial means diverts into sewers emptying into the stream, for it then disposes of the matter thus diverted, as it disposes of household slops and the contents of closets.</p> <p>3. A city may not, without making compensation for the property appropriated, collect water from a large area and by artificial means cast it on. the lands over or through which it would not otherwise flow, to the injury of the owner thereof.</p> <p>4. A city sued by riparian owners for damages for polluting a stream by emptying its sewage into it is not entitled to deduct a sum representing such injury as would have been inflicted by the city had it been without sewers, especially where it has not and cannot produce any evidence from which it will be possible to estimate such an allowance.</p> <p>5. A harmful pollution of a water course is quite a different thing from “pollution” which consists merely in the presence even in considerable quantities of minerals held in suspension, or of minerals produced by chemical reactions, whose specific gravity causes them to sink quickly to the bottom.</p> <p>6. In a suit against a city for polluting a water course by emptying its sewage into it, evidence held to show that the amount of polluted matter resulting from the sewage for which the city was liable was from two-thirds to three-fourths of the whole pollution of the stream.</p> <p>7. Where, in a suit against a city to restrain it from polluting a river by emptying its sewage into it, unless it made compensation to the riparian owners, for the diminution in value of their lands and property rights, the city answered by alleging that it elected to make such compensation to the riparian owners for the alleged diminution in value of their lands and property rights as should be ascertained to be just, and that the injury or taking was temporary, and was to continue no longer than a specified period, and the evidence showed that some years prior to the suit the waters of the stream had become sensibly and injuriously polluted, the compensation should not be computed as of the time of the filing of the bill, but should be awarded as of the time of the original taking.</p> <p>8. The legal rule for compensation for the taking of land gives compensation for the value of the land at the time of the award of the commissioners, while the equitable rule gives compensation based on the value of the land at the time of the entry.</p> <p>9. The act of a city in building sewers emptying into a stream and in discharging sewage into the stream as authorized by statute was not an invasion of the rights of riparian owners until the city began to pour into the stream more sewage than the stream could take care of, resulting in injury to the riparian owners.</p> <p>10. A city built sewers emptying into a stream as authorized by statute. As soon as it became evident that riparian owners had a reasonable ground of complaint because of injuries resulting from the pollution of the stream they made application to the board of health of the city to abate the nuisance, and, failing there, they applied to the state board of health, and later to the legislature. After they had exhausted every other means of redress, they filed a bill to restrain the city from polluting the water. — Held, that the measure of compensation in lieu of equitable relief should be determined by the equitable rule of making compensation based on the value of the land at the time of the entry thereon by the city, and based on the fact that the injury was an entirety to be compensated for as such.</p> <p>11. Under the Eminent Domain law a city may take a temporary use or interest in riparian land by discharging its sewage into a stream for a period of five years.</p> <p>12. Where, in a suit against a city to restrain it from polluting the waters of a stream by discharging its sewage into it unless it made compensation to the riparian owners, the answer alleged that the injury was temporary, no allowance could be made for alleged depreciation in the value of the lands of the riparian owners, nor for personal discomfort by the occupants thereof, and the measure of damages was the diminished annual value of the land.</p> <p>13. The fact that owners of land fronting on a stream had given to another rights of flowage did not divest them of their ownership of the fee, and, subject to the servitude of flowage, they possessed the rights of riparian proprietors.</p> <p>14. Where injury to real estate is only temporary and removable, depreciation in the market value of the land cannot be considered.</p> <p>15. In a suit by riparian owners to restrain a city from polluting the waters of a river unless it made compensation for the diminution in value of their lands and property rights, evidence examined, and held to warrant the awarding of specified compensation based wholly on the diminution in the value of the lands and property rights.</p>

<p>1. To establish the presumption that a trust embracing substantially the settlor’s entire estate, the object of which is to yield to the settlor monthly installments for his support during his life out of the entire corpus of the estate, and to effect a disposition of any residue at his death as he may appoint by will, was intended to defeat future creditors of the settlor, it is not necessary that the possibility of future creditors of the settlor should be expressly recognized, or that an intention to bar them should be expressly declared.</p> <p>2. A trust embracing substantially the settlor’s entire estate, the object of which is to yield him monthly installments for his support during his life out of the entire corpus of the estate, “free of all claims of creditors,” and to effect a disposition of any residue at his death as he may appoint by will, and, failing such appointment, then on the further trust as directed, contemplates the possible creation of debts in the future by the settlor which he expressly undertakes to bar, and cannot be said to have been intended merely to so place the property that it would be impossible for him to contract debts, and is therefore void.</p> <p>3. A trust, the object of which is to yield to the settlor monthly installments for his support during his life out of the entire corpus of the estate, and to effect a disposition of any residue at his death as he may appoint by will, and, failing such appointment, then on the further trust to pay to settlor’s wife monthly installments, and on the death of both to pay the balance to their children, and if there be none, then to pay the balance to the next of kin, so far as it transfers personalty is a conveyance “for the use of the person making the same,” notwithstanding that after the making of the trust the settlor cannot immediately subject the entire estate to his use within 2 Gen. StfU. p. 1604 § 77, declaring conveyances of personalty for the use of the person making the same void as against creditors.</p> <p>4. The trust, so far as it transfers personalty, is a conveyance “for the use of the person making the same,” notwithstanding the remainder over in default of appointment, within 2 Gen. gtat. p. 1604 § 77.</p> <p>5. Where a husband who has made a conveyance in trust void as to his future creditors borrows money of his wife, any claim of ratification or waiver which he or his trustee may put forth to defeat the satisfaction of the wife’s indebtedness out of the transferred property must be clearly established, and, having procured the participation of his wife in the transaction set up as amounting to such ratification or waiver, he must show affirmatively that there was no abuse of the confidential relation on his part, and that as between himself and his wife his conduct in inducing or permitting her to waive her rights or alter her situation was equitable and just.</p>

On application of receiver, appointed pending foreclosure, for an order distributing funds. Pending the foreclosure of a mortgage held by complainant against defendant a receiver was appointed by this court to collect the rents and profits of the mortgaged premises. The receiver now applies for an order directing the distribution of the rents collected by him. The mortgage foreclosed was a first mortgage and was the only lien against the mortgaged premises.

<p>1. An application for the appointment of a receiver of a corporation on the ground of its insolvency is not defeated by proof that the misfortunes of the corporation are due to the wrongful conduct of complainant; any creditor or stockholder having a statutory right to apply for a receiver, and an application not being for the individual benefit of the applicant.</p> <p>2. Where an application for the appointment of a receiver of a corporation on the ground of insolvency is filed, the court must ascertain whether insolvency exists and whether a receivership is necessary, or whether the corporation will be able to resume its business with safety to the public and advantage to its stockholders, and, where the evidence justifies the belief that the creditors will be paid and the business of the corporation resumed if a receiver is not appointed, a receiver will not be appointed.</p>

On bill for partition. On demurrer. Patrick Coyle, deceased, devised and bequeathed his residuary estate in.trust for the benefit of his widow for life and directed that after her death the property should be sold by the trustee and, after payment of a small legacy, the residue should be divided among his three children. The present controversy arises by reason of the language used by testator in directing the division between the children.

On bill for construction of will. Tlie will of Caroline C. Hull, deceased, provided as follows: “I do give, devise and .bequeath to my said executors and the survivors and survivor of them the remaining one (1) share in trust that they during the natural life of my son Richard Cooper Hull will invest and re-invest from time to time the said one share in such securities as they may deem best and most judicious, and pay over the rents, profits, incomes and dividends thereof at…

On bill to foreclose. The bill is filed to foreclose a mortgage against certain real estate in Ocean City. The answer raises the question whether the lien of a certain street improvement assessment which was assessed by Ocean City against the mortgaged premises after the mortgage had been executed and recorded operates as a lien paramount to that of the mortgage. The legislative act under which the assessment was made was passed prior to the execution of the mortgage.

On bill for clower. Herman Ostheimer (the husband of complainant), George Walker and defendant Gustav Single were intimate friends; Ostheimer and Single were connected by marriage and Walker was a member of the family of Single. They determined to purchase a tract of land 'in partnership,” each to own an undivided one-third interest.

On bill, answer, replication and proofs. The bill is filed by the son and daughter of Dr. John Buchanan, deceased, as his next of kin and sole heirs-at-law.

On'bill, answer, replication and proofs. Tbe bill is filed to set aside a deed made by complainant to defendant April Í8tb, 1906, for an undivided interest in certain real estate at Atlantic City. The bill alleges that the deed was procured by defendant through fraudulent representations made by him to complainant for that purpose. Fraud is denied by the answer.

<p>A stipulation in a bond and mortgage to secure the payment of money borrowed as to the date when the interest on the money should begin to run was controlling, though the money was not paid .over to the borrower until a much later date, where the agreement for the loan was made- at'the'time stipulated,'and the whole of the'money was then held ready for the .use-of the.¡borrower. -. -: .- . . 1 .</p>

<p>1. Where the ownership of a bank deposit was in dispute, and defendant, to substantiate her statements, offered a pass-book, all the leaves of which excepting one had been destroyed by her, and her name was written on the front cover and the remaining leaf below her deceased husband’s, through which a line was drawn, the evidence was discredited, where the only explanation given was that she destroyed the entries because she thought they would never be of further use to her, and where she made no attempt to examine the bank books and verify her statements.</p> <p>2. That a husband authorizes hig wife to draw upon his bank deposit does not show a gift to her, the act being consistent with his continued ownership of the deposit.</p> <p>3. Where, when defendant made a voluntary conveyance, he owed a debt, and was thereafter indebted on a running account, it was unnecessary, on a bill to set the conveyance aside,' to prove actual fraudulent intent merely because after the conveyance he had paid sufficient on the account to pay the amount due when the conveyance was made.</p> <p>4. Under the express terms of the Bankruptcy act of July 1st, 189S (30 Stat. 565 eh. 5J/1 § 7Oe; U. 'S. Oomp. St. 1901 p. 31¡51), a trustee in bankruptcy represents all the creditors of the bankrupt, and takes all his property and rights, and may institute such proceedings to avoid illegal transactions as any of them might.</p>

<p>Neither a receiver nor a manager will be appointed to execute a farming contract on a bill by the owner of the land, though he charges the farmer with bad husbandry and with breaches of important covenants, where the farmer has answered the equity of the bill, where the owner delayed for months after an attempted rescission in asking relief, permitting the farmer in the meantime to put in and partially harvest crops, where there is no provision in the contract for rescission, forfeiture or re-entry for breach thereof, and where the inconveniences attending such appointment would be very great.</p>

On bill and pica. On January ?th, 1879, Mrs. Isabelle E. Singer, a widow, and a resident of England, was the owner and holder in her own right of two thousand seven hundred and eighty-seven shares of the stock of the Singer Manufacturing Company, a corporation organized under the laws of this state.

On petition of C. E. Hewitt & Company to be admitted as defendant. The petition is filed by C. E. Hewitt & Company praying to be admitted as a defendant in this suit, with leave to answer. The Elberon Water and Light Company made a mortgage to the Colonial Trust Company of New York, as trustee, to secure an issue of bonds. The company defaulted in its payments thereon, and suit was begun in this court to foreclose the mortgage. In that proceeding receivers were appointed.

On final hearing on bill, answer, replication and proofs. The bill in this case is hied by the complainants for an accounting.

<p>Testator’s will provided that a share of his estate should be held in trust for a daughter, a married woman, to “her sole and separate use” during her life, so that she might enjoy the net income free from the control of any husband, that she should have power to dispose of the principal fund by will, and that, in default of such will, it should go to her heirs. — Held, that neither the principal nor the income of the fund could be subjected to the claim of her attorneys for services in advising her in relation to the management of the fund, the fund being in possession of the court, and neither the principal nor income being a “separate estate,” but the will having created a mere spendthrift trust.</p>

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

On motion for a preliminary injunction. Heard on bill and affidavits and answer and affidavits, and order to show cause.

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

<p>1. Where testatrix had testamentary capacity at the time she executed •a will, with all the formalities required to constitute a testamentary disposition, it would be presumed that the instrument expressed her will, ■and the burden is on one claiming it to have been the result of undue influence to establish, not only that such influence existed, but that it produced a testamentary disposition which testatrix would not have made if she had not been coerced thereby.</p> <p>2. If the will objected to for undue influence benefited one who, at the time, occupied a confidential relation to testatrix, or stood in a position of trust and confidence to her, the burden was on the proponent to establish that the will was the uncoerced act of the testatrix.</p> <p>3. The inference of undue influence will not be drawn alone from proof •of opportunity to exert it, nor will influence be deemed undue which may reasonably be inferred to have been produced by kind attentions and services rendered by the beneficiary.</p> <p>4. Declarations of testatrix, before and after the execution of the will, are only admissible, on the issue of testamentary capacity, to indicate a state of mind of testatrix, and are inadmissible to form a basis for an inference of undue influence.</p> <p>5. In a will contest, evidence examined and held insufficient to justify a finding of undue influence.</p>

<p>Ob appeal from the Camden county orphans court.</p>

The following are the agreements referred to in this opinion: Articles of agreement, made this sixteenth day of February, eighteen hundred and ninety-nine, between the New Jersey Trust & Safe Deposit Company, of Camden, New Jersey, a corporation of the state of New Jersey, party of the first part, and Phoebe J. Bodine, widow, and Ernest C. Bodine, Louis F. Bodine, Annabel B. Beilis, Jennie B. Johnson, Fannie B. Johnson, and Vincent Bodine, heirs at law of J. Alfred Bodine,…

<p>1. Where testatrix had resided with her administrator and his wife, but testatrix was not shown to have had knowledge of the fact that the administrator had told his wife she could have the money derived .from testatrix’s hoard, the implied contract to pay for such board was to pay to the husband as the head of the family, and not to the wife.</p> <p>2. Where an estate was insufficient to pay legacies in full, they should abate proportionately.</p>

<p>The decree relating to the accounts of the appellant in this case is affirmed, for the reasons stated in Middleton v. Garter, ante p. 624.</p>

<p>1. As a general rule, if a trustee becomes the purchaser of the trust property, such purchase is voidable at the instance of the cestui que trust.</p> <p>2. This rule applies notwithstanding the trustee purchase at a public sale.</p> <p>3. The director of a corporation occupies a position of trust or agency for his company of such a character that dealings between him and the company, where his interest is opposed to that of the company, will be subject to close scrutiny and not sustained against the stockholders unless consistent with good faith and fair dealing on the part of the director.</p> <p>4. A director, who is at the same time a creditor of his corporation, may, for the purpose of collecting his debt, assume a position antagonistic to his company and its stockholders by bringing action and proceeding to judgment and execution for the recovery of the debt.</p> <p>5. But a director, who is also creditor of his company, must, on taking legal proceedings for collection of his debt, relinquish his trust pro hao vice, not covertly, but openly, and with fair notice to his company. Whether such notice should be given to the stockholders or to the directors may depend on circumstances.</p> <p>6. Under the circumstances of the present case — Held, that the defendant director, who purchased at sheriff’s sale all the property of the company under executions issued at his suit, and for a consideration not exceeding one-half the value of the property, took the title subject to an option on the part of his oestm que trust to have the benefit of the purchase.</p> <p>7. Relief, under the circumstances, granted to a single stockholder who by reason of infancy was not chargeable with laches, notwithstanding that the other stockholders might be debarred on the ground of their acquiescence or laches.</p>

<p>1. Though, in construing deeds, the question is not what interest did the grantor intend to pass, but what interest did he pass by apt and proper words, and though extrinsic evidence, except such as throws light upon the circumstances and subject-matter, is to be disregarded, still the construction of a deed should be in conformity with the intention of the parties whenever the law will permit.</p> <p>2. A deed to a water company having no right in its corporate capacity to operate a telegraph or telephone line except as it might be incidental to the purposes of a water company granted a right of way for the laying of water pipes, “with the right to set up, operate and maintain a telegraph or telephone line or lines thereon and with the right of ingress and egress to and from such right of way for all purposes.” — Meld, that the clauses relating to the telegraph or telephone lines, and to the right of ingress and egress, were consistent with and incidental to the principal object of the grant for the construction and maintenance of the water plant, and imposed upon the land in question only the burden resulting from such telegraph and telephone lines as might be reasonably adequate for the purpose of constructing and maintaining the pipe lines authorized by the grant, and hence was not broad enough to confer on a telephone company holding under an assignment from the water company the right to use such right of way for the maintenance of a commercial telephone line.</p> <p>3. The word “with,” preceding the grant of the right to set up, operate and maintain a telegraph or telephone line and also preceding the grant of the right of ingress and egress, imports a close and inseparable union between those rights and the right to maintain the pipe lines, and indicates that the rights granted by the clauses following it were incidental to the pipe-line right.</p> <p>4. The right to maintain “a telegraph or telephone line or lines,” when construed as a right appurtenant to the right to maintain the pipe lines, does not import an unlimited number of wires, but only such as may be reasonably necessary for the maintenance and operation of the pipe line.</p> <p>5. The words “for all purposes,” in the appurtenant grant of the right of “ingress and egress to and from said right of way for all purposes,” did not enlarge the grant with i-espect to the maintenance of the telegraph or telephone lines, so as to make it independent of the grant of the right to maintain the pipe lines.</p> <p>G. Where a water company contracted for a right of way for the maintenance of its pipe lines with the right to maintain telegraph or telephone lines thereon, and with the right of ingress and egress to and from the right of way, it would be presumed where the company had no authority under its charter to maintain the telegraph and telephone lines as commercial lines, but only as incidental to the maintenance of the pipe lines, that the latter was the intention of the parties to the grant.</p> <p>7. Where, by the terms of a grant of a right of way to a water company for the construction of such telegraph and telephone lines as might be incidentally necessary to the operation of its water plant, the possession and use of the right of way was reserved to the grantors subject only to the grant, the entrance on the right of way by a telephone company for the purpose of constructing new and additional lines for the maintenance and operation of a commercial telephone system was a violation of the legal rights of the grantors, and constituted a trespass.</p> <p>8. The fact that the practical burden of an existing easement to erect telephone lines incidental to the maintenance of a water plant will be but slightly increased by permitting the erection of additional lines on the same right of way for the maintenance of a commercial telephone will not justify the interference of equity to enjoin the owners of the right of way from intei'fering with the construction of the additional lines, where the rights of the owners to the possession and use of the land were expressly reserved by the grant to the water company, subject only to that grant.</p> <p>9. Where a telephone company violated the property rights of owners of land by going thereon and constructing telephone lines without any right whatever, an injunction restraining the property owners from interfering with the construction of the lines will not be continued until compensation to such owners may be ascertained and made by the telephone company, in the absence of laches or acquiescence on the part of the property owners.</p>

<p>1. Complainant entered into a verbal contract with the authorized agent of the defendants for the purchase and sale of a house and lot. The deed delivered in execution of this contract did not include a strip of land which was a part of the property bargained for. Complainant, after receiving the deed and paying the purchase-money, entered into possession of the whole tract with the acquiescence of the defendants. At the end of two months the defendants disputed the complainant’s ownership of the strip of land not included in the deed. — Held, that under the facts recited there had been such a part performance of the verbal contract for the sale of the strip in controversy as to entitle the complainant to a decree for the specific performance thereof.</p> <p>2. Protest of vendors against a retention by the vendee of a disputed strip of land, included in the contract of sale, but not in the description in the conveyance, not made until two months after the vendee has entered into possession thereof with the acquiescence of the vendors, constitutes no defence to a suit to compel specific performance.</p>

<p>On appeal of the defendant Horace E. Nixon from a decree advised by Vice-Chancellor Learning, whose opinion is reported in 72 N. J. Bq. (2 Buch.) 791.</p>

<p>A grant of “the right to enter upon lands to dig and build a reservoir, the said reservoir not to occupy or cover more than one-half acre of ground” is not a grant of a right to occupy one-half acre of ground with reservoirs but of the right to build a single reservoir whose dimensions should not exceed such prescribed area.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Bergen.</p>

<p>1. A contract in restraint of trade will not be enforced unless the restraint is no more extensive than is reasonably required to protect the interests of the party in favor of whom it is given, and not so large as to interfere with the interests of the public.</p> <p>2. A contract for personal services which forbids the employe to divulge any information known to him or acquired by him during his employment relating to the process of manufacture, and to hold inviolate the treatment, processes and secrets known to or used by him in the works of the employer, which is unlimited as to time and place, will not be enforced.</p> <p>3. Where the bill avers and the answer denies that the complainant has secret processes, and the secrecy of the process is an issue in the cause, it is erroneous to exclude evidence as to the details of the alleged secret processes.</p> <p>4. In order to protect the complainant from an unnecessary disclosure of a secret process, the evidence may be taken in camera and sealed.</p> <p>5. An agreement by an employe to serve for five years and during that time to devote his entire time, skill, labor and attention to the service of the employer, though valid, is not enforceable under the circumstances of this case, even if the court of chancery will ever enforce by injunction a contract for ordinary personal services.</p>

<p>Under section 30 of the-act concerning corporations as amended in 1904 (P. L. 1904 V• 275), a dividend may be declared where the company has profits over and above the actual assets with which it began business, although the total assets may not exceed the debts and the nominal share capital., .</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 72 N. J. Fq. (2 Buch.) 20..</p>

<p>On appeal from an order of the court of chancery advised by Vice-Chancellor Learning, whose conclusions are reported in 72 N. J. Eq. (2 Buch.) 767.</p>

<p>1. The predecessors in title of the defendant, by deed, conveyed to the city of Atlantic City, an easement or right of way over a strip of land on the ocean front, which deed contained a clear restriction against placing any building or structure upon the ocean side of the lands conveyed, with a proviso reserving the right to build a pier of a certain kind and length on which the owners shall not permit the sale of any commodities “and be confined to charging only an entrance fee.” The defendant erected a pier of the kind and length permitted and charged visitors thereto an entrance fee of ten cents. In addition it charged such visitors after they had entered upon the pier additional sums for the hire and use of roller skates and for checking garments. — Held, that such charges, other than the entrance fee, were made in violation of the covenant that the pier owner should “be confined to charging only an entrance fee.”</p> <p>2. The city of Atlantic City, as trustee for the public, has a right to accept a deed for a grant to the public of a right of way over lands on the ocean' front for the purpose of a boardwalk, the deed containing a negative covenant granting in effect also a right of light, air and view over and across the oceanward land from the boardwalk, notwithstanding this latter right is limited by a reservation to the donors of the privilege of placing thereon a certain kind of structure, when the use to which those structures shall be confined is defined for the purpose of regulating the kind of structure and the number of structures which could, and would likely be, erected.</p> <p>3. An acceptance of property dedicated to the public use may be shown by an instrument in writing executed by the proper authorities on behalf of the public, or by the use and improvement of the property dedicated, by the duly authorized authorities.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 69 N. J~ Eq. (S Robb.) 80S.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported in 72 N. J. Eq. (2 Buck.) 686.</p>

<p>On appeal from an order made by the former chancellor advised by Vice-Chancellor Learning, whose opinion is reported in 72 N. J. Fq. (2 Buch.) 782.</p>

<p>On appeal from a decree of the former chancellor advised by Vice-Chancellor Stevens, whose opinion is reported in 71 N. J. Eq. (1 Buck,.) &88.</p>

<p>On appeal from an order made by the former chancellor upon the advice of Vice-Chancellor Learning, whose opinion is reported in 78 N. J. Eq. (8 Buch.) 768.</p>

<p>On appeal from a final decree made by the former chancellor upon the advice of Vice-Chancellor Pitney, whose opinion is reported in 72 N. J. Eq. (2 Buch.) A4-</p>

<p>On appeal from a decree of the former chancellor advised by Vice-Chancellor Bergen, whose opinion is reported in 62 Atl. Rep. A</p>

<p>On appeal from an order made by the former chancellor upon the advice of Vice-Chancellor Learning, whose opinion is reported in 70 N. J. Fq. (0 Buck.) 767.</p>

<p>On appeal from an order made by the former chancellor advised by Vice-Chancellor Learning, whose opinion is reported in 72 N. J. Eq. (2 Buch.) 77k.</p>

<p>On appeal from a decree of the former chancellor advised by Vice-Chancellor Stevens, whose opinion is reported in 72 N. J. Eq. (2 Buck.) 165.</p>

<p>On appeals from an order of the court of chancery advised by Vice-Chancellor Bergen, whose opinion is reported in 72 N. J. Eq. (2 Buck.) 626.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning.</p>

The husband denies the material allegations of the bill and files a cross-bill, in which he seeks a divorce from his wife on the ground of desertion. The law is well settled, in fact it is statutory, that to entitle a wife to alimony two elements must concur — first, the husband must, in the language of the statute, without any justifiable cause abandon his wife, or separate himself from her, and second, he must refuse or neglect to maintain and provide for her.