Volume 76 — New Jersey Equity Reports

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

<p>Heard ou bill, answers, replication and proofs.</p>

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

<p>By will testatrix gave certain real property to a son, and provided that, on the son’s death leaving- no children, the property should go to her daughter, should the property have been sold or exchanged, the daughter should receive the value to the extent of $4,000 and “should my daughter not be living at the time of my son’s death, then the property or the equivalent to be given to my granddaughter.”—Held, that the son took the property in fee, subject only to the executory devises, and the granddaughter took a contingent interest in fee.</p>

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

<p>X. Where the extent of a widow’s claim to personal property under a will was doubtful, a family settlement entered into by all parties in interest who are of full age without fraud, would not he set aside because of alleged inadequacy of consideration in so far as it affected one of the parties.</p> <p>2. A trustee named in a will was not disqualified to act because it was a foreign corporation.</p>

<p>1. A doubt about a title to render it not marketable must be a rational doubt, or real and not fanciful.</p> <p>2. An action at law for damages for breach of a restrictive building-covenant can only be brought against the person by whom broken, and not against a subsequent grantee.</p> <p>3. An application for a mandatory injunction to protect a restrictive building covenant must be promptly made.</p> <p>4. To warrant a mandatory injunction to protect a restrictive building-covenant, the common scheme of building must have been actually preserved.</p> <p>5. Adjoining owners who not only stood by while a building- was erected in violation of a restrictive building- covenant, but have themselves violated such covenant, are not in a position to complain.</p>

<p>1. An agreement to convey property in satisfaction of an embezzlement, in consideration of a promise not to prosecute for the crime, is illegal.</p> <p>2. Where property is conveyed in satisfaction of an embezzlement which „ has been committed, in consideration of a promise not to prosecute before the time, such property cannot be recovered back.</p>

<p>1. Where a railroad company was required to maintain a proper passageway under its tracks at a crossing, a bill to compel the railroad company to enlarge such passage to provide for increased traffic, &c., must be regarded as a bill, not to abate a nuisance in a public highway or for the determination of easements, but as only invoking the chancery jurisdiction conferred by the General Railroad act (P. L. 1908 p. 660 § 29), providing that, when a railroad company shall not properly construct and maintain crossings of highways by its railroad tracks as required by law, the township or municipality may proceed in equity to compel specific performance of the duties imposed by law on the company in that respect, &c.</p> <p>2. The extent of user ordinarily determin.es the minimum width of a highway; the extent of user not being limited, however, to -[he track formed by the wheels of vehicles.</p> <p>3. Where the public acquires a right of travel over the land of another, the public easement includes the use of such adjacent lands as may be needed for ordinary repairs and improvements.</p> <p>4. In order that a railroad "crossing” shall exist, the railroad and the highway must intersect each other in some degree, or at least one must be superimposed on the other.</p> <p>5. The charter of a railroad company (P. L. 1829-80 p. 88 § 15) required it to construct and keep in repair good and sufficient bridges or passages over the railroad or roads where any public or other road shall cross the same, so that the passage of carriages, horses, and cattle on the roads shall not be prevented thereby, &c. General Railroad act (P. L. 1908 p. 659 § 26) makes it the duty of every railroad company to construct and keep in repair sufficient passages over, under, and across the company’s right of way so that public travel shall not be impeded, &c., provided that section shall not enlarge the duty imposed by charter on any railroad incorporated prior to 1873.—Held, that section 26 did not enlarge the charter duties of the railroad company under which it was not required to construct an underneath crossing to the full width of the street, but was only required to construct a “passage” sufficiently large for the accommodation of the existing needs of the public.</p> <p>6. The legislature, in the exercise of police power, may increase the burdens on railway companies in respect to highway crossings.</p> <p>7. Where a railroad was not constructed prior to April 21st, 1873, and its charter required it to construct and keep in repair sufficient bridges or passages over its railroad where any public or other road shall cross the same, the chancery court, in a statutory action authorized by the Railroad law (P. L. 1903 p. 660 § 29), had power to compel the company to construct a good and sufficient passage under its road for the accommodation of travel on a street with which the road had provided an inadequate undercrossing.</p> <p>8. Where a railroad company’s charter required it to construct good and sufficient bridges or passages “over” its railroad or roads where any public highway shall cross the same, the word “over” was used in its ordinary sense to mean “above.”</p> <p>9. Where a railroad company was required to construct and maintain an underpassage where a street crossed its right of way for a distance of two hundred and sixty-five feet covered by seventeen tracks, the railroad company was required to build and maintain a passage thirty-three feet wide and light the same either by suitable openings or artificial light, to pave the same to conform to the street, and to keep it properly drained.</p> <p>10. Notice to a railroad company to construct and repair an under-passage or crossing is not a condition to the maintenance of a suit to compel specific performance of the company’s duty to do so under Railroad law (P. L. 1903 p. 660 § 29), authorizing the township or municipality by suit in equity to compel specific performance of the duties imposed on the railroad company with reference thereto by law.</p> <p>11. Under Railroad law (P. L. 1903 p. 660 § 29), authorizing the township or municipality to proceed in equity to compel specific performance of a railroad company’s duty to construct and maintain proper crossings, the county was neither an improper nor unnecessary party complainant to a suit by the common council of a borough for such relief.</p>

<p>On motion to dismiss bill under rule 213.</p>

<p>On motion for an injunction to restrain complainant’s operatives and their labor union from causing complainant’s employes to break their contracts of service and from preventing, by intimidation, &c., persons willing to be employed by complainant from entering into its service, &c.</p>

<p>1. The term “beneficiary,” as used in insurance, means such person as should stand in the capacity of the beneficiary according' to the established course of the insurance business of the company with its policyholders when the policy becomes payable.</p> <p>2. The rule that, where a life insurance policy payable to a specified beneficiary had been in force for several years and the beneficiary is changed, the original beneficiary is entitled to receive from the proceeds the value of the policy at the time of the change, does not apply' to industrial insurance.</p> <p>3. An industrial policy and the application made a part thereof provided that the company would pay the person designated in the fifth condition therein set forth on receipt of proofs of death, &c., a stipulated sum. The fifth condition, however, did not contain a specification of the beneficiary, but only an enumeration of persons, to any one of whom the company might pay the sum stipulated in the discharge of its obligation, provided in support thereof the company could subsequently produce the policy and a receipt for the amount paid, signed by the party receiving it. The application, however, designated the insured’s husband as beneficiary, and it was the company’s custom to permit policyholders to change the beneficiary; it providing a printed blank for that purpose.— Held, that the original beneficiary designated in the application had no vested interest in the insurance during the life of the insured, and, she having changed the beneficiary in accordance with the company’s custom and appointed another, the latter was entitled to the entire proceeds of the policy.</p>

Hoard on bill, answers, replications and proofs in open court. This is a bill filed by tire next friend of four infants to secure the proceeds of a life insurance policy. The defendants are the life insurance company and those who claim adversely to the complainants. The life insurance company defaulted, and a decree pro confesso has been taken against it. The facts are stated in the opinion.

<p>1. Equity has jurisdiction to protect and enforce legal rights in real estate, which defendants deny, if the court finds that the right exists and that complainant has not an adequate remedy at law or the threatened damage is irreparable.</p> <p>2. Where complainants claimed title to land which defendant city alleged was a duly dedicated street, they could not maintain a suit to enjoin defendants from laying sewer pipe in the street, complainant’s remedy by ejectment being adequate and the damages not being irreparable.</p>

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

<p>1. When the owner of two tenements sells one of them, or the owner of one entire estate sells a portion, the purchaser takes the tenement or portion sold with all the benefits and burdens which appear at the time of sale to belong to it, as between it and the property which the vendor retains.</p> <p>2. The principle illustrated with respect to the case of overhanging eaves and porch as a gnosi-easement reserved by implication for the benefit of the complainant as vendor.</p> <p>3. The easement in question is of the class defined as continuous.</p> <p>4. An action at law before the law court is the proper remedy for the determination of the existence or non-existence of such an easement, and the court of -chancery will -not enjoin the prosecution of such an action.</p>

On exceptions to answer of defendant Charles G-. Brown. The purpose of the bill in this suit is to procure a decree declaring the equitable title to certain real estate to be vested in defendant Charles G. Brown, the legal title to which now stands in the name of his daughter Roberta Brown, to the end that the real estate may be subjected to the lien of a certain judgment held by complainant against defendant Charles G. Brown.

<p>On bill to foreclose usurious mortgage.</p>

<p>1. In the foreclosure of a purchase-money mortgage which has been given to a vendor by the vendee mortgagor for all or a part of the consideration of a deed of conveyance for the same premises containing covenants of warranty of title or against encumbrances, the vendee mortgagor may be allowed a deduction, by reason of the covenant against encumbrances contained in the deed, .for prior mortgages, taxes, assessments or judgments; relief may also be given the vendee mortgagor by reason of the covenant of title contained in the deed if there has been an eviction by title paramount; relief may also be given in such case for fraud; or for the conveyance of less land than bargained for; the foreclosure may also be arrested pending an action at law to try the title of an adverse claimant. No relief can be given the vendee mortgagor on his assertion of an outstanding title when there has been no eviction and no action is pending to enforce it; in such case the vendee mortgagor will be left to his remedy at law on the covenants.</p> <p>2. The right of rescission of a contract must be asserted within a reasonable time; the retention of the benefits of the contract is inconsistent with the assertion of that right.</p> <p>3. A defect of title which has been removed before final hearing and which has caused no damage to the vendee, affords no ground for relief of the vendee mortgagor in a suit to foreclose a purchase-money mortgage. But in such case partial relief may be given against costs.</p>

<p>1. In the distribution of assets among the stockholders of an insolvent building and loan association neither the owners of stock known as “full paid stock” nor owners of stock known as “advance payment stock” are entitled to preferment as such.</p> <p>2. Nothing either in the statute or by-laws contemplates that such stock shall become preferred stock in the sense that such stock shall be entitled to preferment in the distribution of assets at dissolution, or that its holders shall become general creditors of the association as distinguished from stockholder members.</p> <p>3. Neither are the holders of stock on which notices’ of withdrawal have been given entitled to preferment in such case.</p> <p>4. The only equitable plan for distribution of the assets of such association is the pro rata division of the assets among all of the stockholders, giving to each share of stock a value, for purposes of distribution, of the amount paid on it.</p>

<p>On bill and cross-bill.</p>

<p>1. In a suit by one administrator against his co-administrator for the recovery of money alleged to be due complainant from intestate in his lifetime for services rendered and merchandise supplied, and also for the recovery bf money paid by complainant for funeral expenses, upon a motion to strike out such portions of the bill as refer to such matter on the ground (1) of uncertainty, and (2) because within the jurisdiction of the orphans court, respectively—Held (1) that as the bill primarily seeks to establish a debt from the intestate to the complainant as administrator, which is disputed by his co-administrator, the suit is properly brought in this court; and (2) as respects the claim for services and merchandise the rules of equity pleading require complainant to give defendant full information in such a manner as to apprise him of the times when and the nature of the labor performed, and the kind and extent of the merchandise delivered, and when delivered, these being matters peculiarly within the complainant’s knowledge, and of which defendant is presumptively ignorant.</p> <p>2. Since rule 213 was adopted a motion against a bill for uncertainty is entertained of the same force as a demurrer upon like ground.</p>

<p>1. Evidence, in a proceeding to prevent the property of a religious society from being diverted from its original use, held to show that a meeting of the society, called to determine whether the society should continue to affiliate with the church organization with which it had formerly affiliated, or should connect itself with another society, was regularly called, and that all the proceedings which took place at such meeting were regular and in accordance with the course and practice of the society.</p> <p>2. Where a meeting of a religious society is held to determine whether the society shall longer affiliate with the branch of the church with which it had formerly affiliated, or shall connect itself with another, and it is unanimously decided at that meeting to connect itself with another society, and no appeal is taken from such action to any higher judicatory of the church, such action is final, and a subsequent meeting of 'the society cannot disturb the decision.</p> <p>3. Evidence, in a proceeding to prevent the diversion of church property from its original use, held to show that the Hungarian Evangelical Reformed Congregation of Trenton is only subject to the supervision of higher church authority in ecclesiastical matters, and that it has full control over its property, and cannot be restrained from reincorporating as the Magyar Reformed Church of Trenton, and transferring its property to the latter church and loaning money and placing a mortgage on such property.</p> <p>4. Where a meeting of a church society is regularly called and conducted, and the society determines at such meeting to terminate its connection with its superior ■ church body and affiliate with another church, there being nothing to prevent such action in its charter, members of the society who do not agree with the majority lose any right which they may possess to bring an action to prevent the society from carrying out its resolution by failing promptly to commence an action, as laches will prevent them from securing favorable consideration in a court of equity.</p>

<p>On petition for clivorco. Motion for injunction.</p>

<p>On motion for preliminary injunction.</p>

<p>Where a husband, pending' suit against him for divorce, applied for the right of access to and custody of his children, two boys, ten and fifteen years of age. respectively, and they, on a private examination, exhibited extreme hatred for their father, absolutely refusing to see him, and declined to entertain any propositions looking toward the father’s society, which it appeared resulted from the mother’s adverse influence over them, the father’s application will be denied; but he was entitled to a reduction of alimony for their support from $46 to $10 a week.</p>

<p>1. ' A court cannot pretend to be ignorant of facts in relation to a strike of employes in a large city within its jurisdiction, which are common to the knowledge of every intelligent person within the county.</p> <p>2. False statements in affidavits on behalf of defendant opposing a preliminary injunction must be held to weaken very much their evidence in other respects.</p> <p>3. The undoubted principle of law that every man is bound by the consequences of his own acts applies to the acts of labor unions in ordering a strike and encouraging its continuance, and they must be held accountable for all the results that can property be traced to their original action.</p> <p>4. Acts of violence, intimidation, and coercion chargeable to local labor unions, consisting of assaults on employes by strikers and their sympathizers, assembling of mobs of such persons resulting in riots, turbulent affrays in the streets, and the organization of a system qf picketing, for the purpose of annoying employes not participating in the strike, are unlawful.</p> <p>5. Unless bound by contract, employes may, singly or in a body, leave their employment whenever they choose, and for any reason, or for no reason at all, but when they go they have no right to interfere in the slightest degree with the efforts of the employer to fill their places; and, in like manner, the employer may discharge one or all of his employes, and, having done so, he cannot interfere in any degree with their efforts to obtain employment elsewhere.</p> <p>6. The employer and employe have correlative rights which appear in our constitution in' the clause “among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and of pursuing and obtaining safety and happiness,” and there is no law applicable to the one that does not apply to the other with equal force.</p> <p>7. The action of local labor unions in calling meetings, and in the most public and formal manner expelling members refusing to join in a strike, without according them a hearing, where they were guilty of no moral turpitude, and where, according to the by-laws, they had already lost their membership, must be regarded, in passing on the right to an injunction against intimidation of employes desiring to work pending a strike, as action taken to stand in terrorem as to the remaining members.</p> <p>8. Act of February 14th, 1883 (P. L. 1883 p. 36), providing “that it shall not be unlawful for any two or more persons to unite, combine or bind themselves by oath, covenant, agreement, alliance or otherwise to persuade, advise or encourage, by peaceable means, any person or persons to enter into any combination for or against leaving or entering the employment of any person, persons or corporation,” has no relevancy to a civil suit to enjoin labor unions and their officers and members from unlawful acts intended to intimidate and interfere with the employes of complainants pending a strike.</p> <p>9. Without proof that a national association of employes as a body encouraged the unlawful acts of local unions in connection with a strike ordered by them, injunction will not lie against it, but its president should be enjoined when, notwithstanding his public utterances against unlawful disturbances in connection therewith, he has encouraged the same, and is in fact in charge of the strike, and his utterances have also been at variance with those in which he counseled peace.</p>

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

<p>1. "Where defendants in a suit fail to produce one of the defendants as a witness, or his deposition, and his testimony under the circumstances of the case is of the last importance to the other defendants, and the failure to produce him is not explained, the court will expect from the remaining defendants evidence of a character that is clear and convincing to sustain their defence, and any uncertainties in the evidence which he might have cleared up will be resolved in favor of the complainant.</p> <p>2. Where a transfer of an equity of redemption of great value for a totally inadequate consideration and on an understanding that it was being taken for the benefit of the mortgagor is procured, the burden of proof, in an action to compel the transferees to account to the mortgagor, is shifted to the transferees, who are called upon to give the utmost explanation and the freest and most open disclosures of all the facts.</p> <p>3. In a suit to reach the surplus arising from a mortgage foreclosure sale, evidence held to show that defendants procured a transfer of the equity of redemption at a totally inadequate consideration, and under an understanding that the mortgagor’s interests would be protected so as to render them liable to the mortgagor for the loss sustained.</p> <p>4. Where, in a suit to reach the surplus arising from a foreclosure 'sale, it is shown that defendants, transferees of the equity of redemption, obtained the transfer through fraud, a decree for the loss occasioned to the mortgagor by the actions of the transferees may be had against them personally, and it is not necessary to follow the property.</p> <p>5. Laches which does not prejudice the defendant, but injures only the complainant, cannot defeat the suit.</p>

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

<p>On application for leave to traverse inquisition.</p>

<p>1. Surplus money arising upon a sale of land under a decree of foreclosure stands in the place of the land itself in respect to liens upon or vested rights therein.</p> <p>2. When husband and wife hold lands by an estate in entirety, the wife, during the joint lives of herself and husband, is entitled to her share of the usufruct of the land, and the right of survivorship in the fee still exists as at common law'.</p> <p>3. Judgments recovered against a husband, who, together with his wife, ow'ns land by an estate in entirety, are liens against the husband’s interest and are enforceable against the land if he survives his wife, but are subject to be defeated as to that land in the event of her surviving him.</p> <p>4. Surplus money, arising upon a sale of land owned by husband and wife by an estate in entirety, will not be paid to the husband and wife upon their petition when there are judgments against either one of them, but will be held under the control of the court to wait the severance of the estate by the death of one of the parties, when the fund will or will not become available in satisfaction of the judgments, accordingly as the judgment debtor survives or dies before the other tenant by entirety.</p>

<p>1. At the time of making his will the testator’s estate consisted of certain securities (bonds and mortgages) of which he thereafter died possessed. In the second item of his will he provided as follows: “I do give and bequeath unto my wife Georgia M. Allen, the sum of $17,000.00, to be paid to her out of the securities which I now hold, instead of cash.” —-Held, that the legacy is a specific one, and is to be paid out of the securities which came to the executor as part of the estate of the testator.</p> <p>2. A specific legacy carries with it the income thereof from the death of the testator.</p>

<p>On petition to compel the production of the books of the complainant corporation for inspection by defendant.</p>

<p>On. application for preliminary injunction. Heard on bill and affidavits, and affidavits on the part'of the defendants.</p>

<p>On exceptions to answer, and on motion to withdraw answer and dismiss bill.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 74 N. J. Eq. (4 Buch.) 678.</p>

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

On. appeal from tlie decree of tire court of chancery advised by Vice-Chancellor Garrison, who filed the following opinion: In an opinion filed on the 15th day of May, 1908, I formulated the issues and announced my conclusions in this cause. This cause has been before the court for a long time, the first testimony therein having been taken at Trenton on the 11th day of December, 1906.

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

<p>1. Under Orphans Court act (P. L. 1898 p. 762 § 180), authorizing the allowance to a trustee of such commission upon the income as the court deems just, provided that such allowance shall not exceed five per cent., the commission allowed may be less than five per cent., and ordinarily where the annual income is large the circumstances must be unusual in order to justify the allowance of that rate, though it may be properly allowed where the income is small.</p> <p>2. Where a trustee has only administered an estate for seven years, during which time his only services had been to receive and disburse the income of investments already made, and the trust will probably continue for thirty or forty years longer, a commission will not be allowed the trustee on the corpus of the estate upon an accounting.</p>

<p>On appeal from an order of the conrt of chancery advised by Vice-Chancellor Learning.</p>

<p>A.court of equity, when asked to decree the specific performance of a contract, will examine not only the contract itself, but the relations of the parties and the surrounding circumstances; and if by reason of inadequacy of consideration and the other circumstances of the case, there is reason to suspect fraud, specific performance will be denied, and the complainant left to his remedy at law.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 71 Ail. Rep. 230.</p>

On appeal of the railroad companies.) On appeal of the city.) On cross-appeals from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 75 N. J. Bq. (5 Buck.) 20.

<p>1. The specification of grounds of demurrer as prescribed by chancery rule 209 is, in effect, a statement in advance of the points of law intended to be argued thereunder.</p> <p>2. A motion to strike out assigned causes of demurrer is unwarranted.</p> <p>3. History of chancery rule 209.</p>

The board of education of the city of Bayonne had taken preliminary steps for the erection of a school building. The contract was about to be awarded when the complainants, taxpayers of Bayonne, applied to a justice of the supreme court for a unit of certiorari to test the legality of the proceedings of the board.

J. Bq. (5 Buck.) 205. The orphans court of Monmouth county, in admitting to probate the will of Howard P. Erotbingham, deceased, filed the following conclusions: The writing, which it is dfiie object of these proceedings to have admitted to probate as the last will and testament of Howard P. Erothingham, was executed by him as his will in due form of law on the 10th day of October, 1906. This, is proved by the testimony of the subscribing witnesses to the instrument.

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Walker, whose opinion is reported in 7k N. J. Fq. (k Buch.) 721.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in If N. J. Ftj. (f Buck.) 588.</p>

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

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

<p>On appeal from an order of the court of chancery advised by Vice-Chancellor Howell.</p>

<p>1. A party in an action at law who accepts the decision of the supreme court that his remedy is in equity, instead of taking the opinion of the court of errors and appeals thereon, makes the decision the law of the case, and his right to sue in equity is not defeated by a subsequent decision of the court of errors and appeals in a similar case establishing the rule that the remedy is at law, though the decision may control as to the amount of the recovery.</p> <p>2. Where an assignment of shares in a building association was made to a bank as collateral before the termination of tile charter of the bank, and it continued to transact business as a corporation under the theory that its charter was extended by 1 Gen. Btat. 1895 p. 972, as construed by the banking and insurance department, the assignment should not be declared invalid because of a supposed legal non-existence of the corporation during the loans secured by the assignment.</p> <p>3. Notice to the treasurer of a building association of an assignment of shares to a bank of which he was cashier as collateral for a loan is not notice to the association of the assignment, where the treasurer and cashier contemplated in procuring a certificate for matured shares on maturity of the shares a fraud on the bank, and his knowledge of the bank’s rights will not be imputed to the association.</p> <p>4. A building association issuing matured shares in payment of shares which had matured fixes the rights of the shareholder in the distribution of the assets in which he is entitled to share.</p> <p>5. The books of a corporation are for many purposes the primary evidence of membership as between the corporation and the members, and in the payment of dividends without notice of an adverse claim a corporation is protected by payment to the holder of record on its books. .</p> <p>6. As between a building association and its members, a payment on the final distribution of assets to the shareholder of record without notice of a previous assignment is a valid payment as against a holder of the certificate by assignment who has not applied for a transfer on the books.</p> <p>7. Where a building association paid shares on their maturity by issuing a non-negotiable certificate of indebtedness to a third person personally, and the association knew of the assignment of the shares to him, the issue of the certificate was as between the association and the shareholder or those claiming under him an issue to the third person as assignee, and the certificate was subject in the hands of any holder to the defence that it was procured by the third person’s fraudulent suppression of a previous assignment of the original shares, so that on 'notice to the association of such previous assignment, a payment of the matured certificate was at its own peril.</p> <p>8. The right of a bank holding as assignee to secure a loan stock in a building association is entitled to share on distribution on the maturity of the shares, and it may then demand the amount coming to its assignor, and the time fixed for the accrual of its cause of action against the association is not affected by the fact that the association, without knowledge of the assignment, issued matured certificates on the maturity of the shares at the option of the assignor.</p> <p>9. The statute of limitations is not applicable to an equitable interest in a fund held in trust by a building association for distribution among the holders of shares in a matured series.</p> <p>10. Stock in a building association was assigned to a bank as collateral. The association had no notice of the assignment, and, on the maturity of the shares, it paid them by issuing a certificate of indebtedness to a third person individually, who was to the knowledge of the association an assignee of the original holder. The third person pledged the certificate, and the pledgee recovered in a suit from the association. The bank and its receiver delayed notice of any claim under the assignment until nearly six years after the maturity of the shares, and until after the certificate of indebtedness had been, with the consent of the receiver, sold to the pledgee for the payment of his debt. The pledgee was a bona fide pledgee.—Held, that the right of the bank to recover from the association on the original shares was barred by laches.</p> <p>11. A payment by a building association to the original holder of shares of the amount due, made with notice of a third person’s claim, under an assignment of the shares from the owner, is at the risk of the association, and the assignee may recover from the association the amount due on the shares on their maturity.</p>

<p>1. "Where a testator directed his executor to pay his widow, during her life, the income derived from the investment of a certain fund which was set aside for that purpose, a portion of the principal of which was misappropriated by the trustee, and the residuary estate has been distributed to and among the residuary legatees, who are also residuary legatees of said fund, the widow cannot compel such residuary legatees to make good out of what has come into their hands the amount so misappropriated by the trustee, and which should have been paid to her by way of annual payments or income.</p> <p>2. Where the loss of a fund is due to waste or misconduct of the executor and trustee, he and his estate alone can be looked to. No contribution arises against residuary legatees in such a case.</p> <p>3. The case of Trenton Trust Go. v. Donnelly, 65 N. J. Eq. (26 Dielc.) 119, distinguished.</p>

<p>1. tVhere a mother, after securing a judgment in a New Jersey court awarding- her the custody of her children, left the state, and the father, on application to the court, obtained a modification of the judgment permitting the children to visit him in the State of New York, where he resided, the order of modification was within the protection of the clause of the federal constitution declaring that full faith and credit shall be given in each state to judicial proceedings of every other state.</p> <p>2. Where the mother, in such case, commenced an action for divorce in the state to which she removed, the court, in such action, might determine the right to custody of the children on conditions arising since the order of the New Jersey court, but could not base its adjudication on evidence of facts occurring before that order.</p> <p>3. Where the mother, on application in the divorce suit for an order for the sole custody of the children pending suit, offered no evidence of facts occurring since the modified order of the New Jersey court, except that on the return of the children to the mother from a visit to the father, under order of the court, they were in poor health, such poor health not being ascribed to the treatment of the father, an order in such divorce suit, granting the prayer for such custody, being based on the facts occurring before the order of the New Jersey court, was of no effect, since it failed to give full faith and credit to the New Jersey judgment.</p> <p>4. Where, on presentation of a petition by a husband for commitment of the wife for violating an order as to the custody of the children, she had not yet disobeyed it, but her counsel had given notice thát she would not obey it in view of an order of a court of another state, and her counsel disavow any intentional disrespect to the court making the former order, she will not be adjudged in contempt, though the order of the foreign court is not valid.</p> <p>5. Where, after an order granting to a wife the custody of the children with a provision that they be sent to visit at the husband’s home two-months of each year, she commenced suit in another state for divorce, and procured an order for sole custody of the children pending suit, but the situation was otherwise unchanged, the former order would not be modified to give the husband custody of the children.</p> <p>6. In a proceeding for contempt for violating an order as to the custody of the children of divorced parents, where the right to the custody was determined according to the claims of the petitioner, but there had not been an actual violation of the order, and only notice of an intended violation, neither party would be charged with costs.</p>

<p>1. An affidavit attached to the bill cannot be considered as a part thereof.</p> <p>2. Testatrix gave her entire estate to her two sons and made them executors. The will was proved January 3d, 1907, and the executor who qualified filed in the orphans court on April 26th, 1909, an inventory showing about $1,500 cash on hand, and at the same time filed his final account. The son who did not qualify as executor was adjudged bankrupt on December 1st, 1908, and complainant was appointed trustee in bankruptcy several months thereafter and brought a suit against the executor to transfer to the chancery court the settlement of the executor’s account pending in the orphans court. The bill alleged that testatrix received large amounts during her lifetime and turned over to defendant money and securities amounting to $23,000, which property was owned by her at her death, together with other property; that defendant’s relation to testatrix precluded a gift thereof to him, and complainant believed that testatrix did not dispose of such property, and it should have been in defendant’s possession and accounted for as assets of the estate; that it was impossible to secure a complete accounting in the orphans court, it being without adequate jurisdiction to compel discovery of the assets of which testatrix should have died seized. Fraud by the executor, or his pecuniary irresponsibility for any failure to account, was not alleged.— Held, that where the chancery court and the probate court have concurrent jurisdiction, it is a matter of discretion whether the former will intervene, either before or after the probate jurisdiction has attached, and. in view of the enlarged powers of the orphans court in such cases, the complainant showed no reason why the chancery court should assume jurisdiction.</p> <p>3. A bill cannot be sustained as a bill for discovery where it did not allege that a discovery was sought in aid of a proceeding in another court, but merely sought to enjoin a pending proceeding in another court so as to transfer the case to the chancery court.</p> <p>4. A bill cannot be sustained as a bill for discovery where it prays for an answer without oath.</p>

<p>On demurrers to cross-bills.</p>

<p>1. Upon a bill by the complainant against the executors of a testator and others, not for the specific performance of any contract, but for compensation or damages on account of the breach of a contract alleged to have been made by the testator whereby he legally bound himself to provide, by will or otherwise, for the accession by the complainant, upon the testator’s death, to a parcel of his real estate and a large share of his remaining estate—Held, that the rights, legal or equitable, asserted by the complainant, must be based upon a contract made by the complainant with the testator and that the testator’s will is not in litigation, and held, after examination of the evidence, that no such contract was proved.</p> <p>2. When property is transferred, or services rendered, upon the understanding that compensation is to be rendered therefor through a legacy or devise, the value of what has been so supplied is generally recoverable in an action at law.</p> <p>3. Where the decree of this court, on its face, will be within its jurisdiction '(i. e., involve no proceeding foreign to the court, and grant no remedy with which the court is not equipped), it is generally safe for tlie court to retain the bill and proceed to decree, even though the whole case has turned out to be strictly cognizable at law, provided, as here, no objection is made by the parties to the litigation, and any right of trial by jnry has been waived, and provided further, that the court, for its own protection, does not feel called on to dismiss the bill at the end of the hearing.</p>

Heard on bill, answer, replication and proofs in open court. This is a bill for specific performance.

On petition of Thomas Gormley. Heard upon petition and affidavits. On the 21st day of October, 1909, the sheriff of Hudson county, New Jersey, held a sale under a writ of fieri facias issued in the above-entitled suit. At that sale the property was struck off to Thomas Gormley, the petitioner, who bid $2,300. The conditions of sale which he signed provided, among other things: f “First.

Heard on bill, answer, replication and proofs in open court. This is a bill filed to procure the construction of the will of Andrew S-. Godfrey and for directions with respect thereto. The facts sufficiently appear in the opinion.

Heard on bill, answer, replication and proofs in open court. The complainants in this bill are grandchildren of Alexander J. Cameron, who, during his lifetime, was a resident of Ridge-wood, in this state. He died on the 30th of September, 1891, leaving him surviving a daughter, Mary Jane Crowley; a son, Alpin J. Cameron, one of the defendants herein; a daughter, Alice E. Cameron; Ida G-.

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

<p>1. Where the principal of a wife’s separate estate comes to the possession of her husband, and is used by him, the presumption of law is against a gift.</p> <p>2. Evidence held to show that money coming to the possession of a husband from his wife’s separate estate was not a gift.</p>

<p>1. For misjoinder of parties defendant those only can demur who are improperly joined.</p> <p>2. Where the demurrer raises the objection that the bill discloses that the real estate sought to be partitioned is in the possession of the demur-rant under a claim of title adverse to the title asserted by the complainant, the demurrer will be allowed.</p>

<p>1. Where the owner of land lays it out into streets and lots, and adopts a restrictive covenant regarding the location and use of buildings to be erected on the lots, with a view to secure the defined conditions named in the covenant for the benefit of the entire tract which he seeks to develop, and inserts the covenant in all deeds as a part of the defined scheme and as an exaction from all purchasers for the benefit of each purchaser, the equitable right to enforce the covenant enures to each purchaser, irrespective of the time of his purchase.</p> <p>2. A restrictive building covenant in a deed of platted land, providing that it was the object of the covenants to secure and perpetuate the health, beauty and general improvement of the locality, and that it was expressly agreed that such covenants should run with the land, and that any subsequent conveyance should be made subject to the same covenants, &c., was a covenant for the benefit of the remaining portion of the grantor’s land.</p> <p>3. The record of a deed containing a restrictive building covenant was notice to all persons to whom the grantee’s title subsequently passed.</p> <p>4. The foreclosure of a mortgage, given by the grantee in a^deed containing restrictive building covenants to the grantor, did not extinguish the notice given by the record of the deed that the grantee had bound himself and his heirs and assigns to the preservation of such covenants.</p> <p>o. The equitable right to enforce restrictive building covenants may be lost by a degree of acquiescence in their violation amounting to an abandonment of the right of complainant.</p> <p>G. A common grantor, who has parted with his title to a portion of the land for the benefit of which a restrictive covenant has been imposed on other land theretofore conveyed by him, may not thereafter release or modify the covenant so far as it operated to benefit the land previously conveyed.</p> <p>7. Evidence held insufficient to show a loss by complainant of the’right to enforce restrictive, building covenants through failure to seek to enjoin the erection of certain buildings.</p> <p>8. A covenant in a deed establishing a building line is valid.</p>

Oil bill to reform deeds. Heard on motion to dismiss bill for want of equity and for laches. Complainant seeks to reform a deed of conveyance made to him for certain real estate, and also to reform the deeds made to his grantor and to his grantor’s grantor, respectively, for the same land.

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

<p>At final hearing of a suit for divorce against a wife for adultery, her guilt was ascertained and a decree nisi was entered. On motion of complainant a prior order for the payment of alimony pendente Ute was suspended.</p>

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

<p>Where the title to land sought to be taken to widen a highway was in dispute and complainant was in the actual possession claiming title, which was not clearly in the board of freeholders of the county, complainant would be granted a preliminary injunction restraining the board from taking possession of the strip until their legal right had been settled; it appearing that to withhold the injunction would destroy complainant’s freehold, to his irreparable injury.</p>

<p>1. An answer under oath made to a bill praying for an answer under oath may be amended in matters of form or as to mistakes of dates or verbal inaccuracies; but" an amendment in which defendant shifts his ground of defence cannot be allowed, as he must make a true and exhaustive answer at the earliest opportunity.</p> <p>2. An answer under oath which denies the complainant’s peaceable possession of land, and which alleges that defendant executed a deed of the land at a time when she was the wife of B„ who did not join in the deed, may be amended by alleging that at the time of the execution of the deed she was the wife of S., who did not join in the deed.</p> <p>3. A cross-bill. must be supported by an answer.</p> <p>4. Where the answer under oath to a bill praying for an answer under oath alleged that defendant executed a deed of the land in 1874 while married and that her husband did not join, but did not mention a deed made by her in 1870, an amended answer setting forth the deed made in 1870 could not be allowed.</p> <p>5. The original answer under oath made to a bill praying for answer under oath will remain on file as evidence notwithstanding the filing of a supplemental answer and cross-bill, and complainant may use it to attack the credibility of defendant or otherwise.</p>

<p>1. Defendant in a suit for divorce may plead in bar a matrimonial offence committed by complainant which accrued after the filing of the original bill.</p> <p>2. A defendant in a suit for divorce may plead by cross-bill a matrimonial offence, entitling him to a divorce, which had not accrued when the original bill was filed, but which did accrue prior to the filing of the cross-hill, and obtain the same relief which he might have obtained by filing an original bill as of the same date.</p> <p>3. Where plaintiff in a suit for divorce was a bona -fide resident of New Jersey, and defendant, a resident of New York, duly appeared and answered, the court had jurisdiction to grant defendant a divorce on a cross-bill without personal service of process on the original complainant under chancery ruie 206a providing for relief to defendants in chancery, in so far as the same had not been modified by the Divorce act.</p> <p>4. Where a wife in a bill for divorce made charges of matrimonial offences against her husband sufficient, if true, to have warranted his indictment and punishment by the criminal courts, and repeated and enlarged the same in an amended bill, but on the trial after the filing of a cross-hill by the husband demanding a divorce for desertion, which did not accrue until some time after the filing of the wife’s bill, she declined to produce any evidence in defence of her husband’s claim or to prove her own charges, she would be regarded as having filed her bill in bad faith, and hence was not entitled to set up the filing thereof in bar of her husband’s right to a divorce because the grounds had not accrued at the time of the filing of her bill.</p>

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

<p>On motion for preliminary injunction.</p>

<p>1. Where the jurisdiction of courts of law and equity for the redress of frauds is concurrent, equity should entertain the cause and determine it on its merits, provided adequate relief cannot be obtained at law.</p> <p>2. A bill to rescind a contract relating to the sale of personal property under a lease, alleging that the contract was induced by representations which were false and which the defendant knew were false, though stating facts sufficient to support a common-law action for deceit, is cognizable in a court of equity.</p>

<p>On motion for preliminary injunction.</p>

<p>On motion for preliminary injunction.</p>

On application for sale of lands devised to a religious corporation, and on application of an individual for leave to answer and contest the application.

<p>1. A contract that the covenantor will not engage in a competitive business, although a contract in restraint of trade, is not opposed to public policy but is valid and enforceable, when the restraint contracted for is partial and is reasonably required for the protection of the covenantee in the use and enjoyment of the particular business the covenantor contracts not to carry on.</p> <p>2. It will be presumed that the parties intended to make a valid contract and that they designed to provide a reasonable restraint.</p> <p>3. Where the restraint is without qualification it is unreasonable and contrary to public policy; but where it is subject to some qualification, either as to time or space, the question is whether it is reasonable, and, if reasonable, it is good in law.</p> <p>4. A contract founded upon adequate consideration that the covenantor will not engage in the manufacture or sale of white porcelain door knobs, unlimited as to space, but limited as to time to a period of approximately five years, is reasonable and will be enforced by injunction.</p>

<p>1. As to whether a subsequent legislative act repeals by implication a former one, the canon of construction is: If both acts can stand together both shall stand, but if they are so repugnant to each other that both cannot stand together, the former gives place to the latter.</p> <p>2. There is no repugnancy beween the act of March 80th, 1886, commonly called the Martin act (Gen. Stat. p. 3370). and the act of April 8th, 1903, commonly called the General Tax act (P. L. 1903 p. 394), and therefore the latter does not repeal by implication any of the provisions of the former.</p> <p>3. A sale of land by the city of Paterson under the provisions of the Martin act as amended by the supplement of June 2d, 1905 (P. L. 1905 p. 457), is valid.</p>

<p>1. The State of New Jersey is the owner in fee of all the lands below high-water mark in navigable tidewaters and arms of tbe sea witbin its borders in virtue of its sovereignty as successor to tbe king of England; and sucb ownership extends from ordinary high-water mark to the centre of the Kill von Kull, which is the boundary line between tbe States of New Jersey and New York.</p> <p>2. Tbe provisions of section 10 of the act of congress of March Sd, 1899, commonly called the River and Harbor act, were designed to protect the navigable waters of the United States (including tbe Kill von Kull) from encroachment and from obstructions to navigation, and to commit the duty of their protection to an officer of tbe federal government, without whose permission no sucb obstructions can be made. Tbe act is a mere regulation for tbe benefit of commerce and navigation, and the license or permission of the secretary of war is only a finding and declaration that a proposed structure or excavation would not interfere with or he detrimental to navigation, and is not equivalent to a positive declaration by the authority of congress that the licensee may make such obstruction or excavation without first obtaining tbe consent of tbe owner of tbe submerged land. It is not an enactment touching tbe rights of the owner of such land, and the license given to the Hudson County Water Company by the secretary of war to excavate in and lay pipes across the Kill von Kull from Bayonne, in New Jersey, to Staten Island, in New York, is a mere declaration by the official named that the proposed work will not interfere with navigation, is strictly permissive, and is not an authority to do the work in the absence of consent thereto by the State of New Jersey, the owner of the land.</p> <p>3. The proposed excavation and laying of a pipe line through the lands of the State of New Jersey under the waters of the Kill von Kull by the Water Company without the consent of the state is an act in excess of the Water Company’s corporate powers, and will be arrested by a preliminary injunction without the necessity of irreparable injury to the state’s rights being shown.</p>

<p>C. C., by the death of his father, became seized of an estate of inheritance in fee in certain lands, and conveyed the same by quitclaim deed to his mother, the widow, for the term of her life only. The deed contained no words of inheritance. 0. O. married, and died in the lifetime of his mother, the grantee, who died afterwards.—Held, that the fee and the inheritance remained in O. O. during his life, notwithstanding the estate in his mother for her life, and, consequently, he was seized of an estate of inheritance during coverture; therefore, liis widow is entitled to dower.</p>

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

<p>1. Under section 197 of the Orphans Court act (P. L. 1898 p. 789), which provides that if -probate of a will be refused the court may order the costs and expenses of the litigation to be paid by the person propounding the will or out of the estate of the deceased, the court, when ordering the expenses paid out of the estate, is authorized to include counsel fees to both sides as part of such expenses.</p> <p>2. Dees in such cases may be allowed to counsel representing persons interested in the controversy as legatees or next of kin, who were proper, though not necessary, parties, as well as to counsel representing proponent and caveators, who were necessary parties.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 75 Atl. Rep. 97S.</p>

<p>Under “An act concerning warehouse receipts and to make uniform the law relating thereto” (P. L. 1907 p. 81/1), a receipt or memorandum given by a warehouseman to his bailor which shows that the property described therein was received from the bailor, by the warehouseman, for safe-keeping, in the ordinary course of his business, is a sufficient warehouseman’s receipt to entitle him to require his bailor and an adverse claimant to interplead and settle their respective rights to the property, although it may not embrace all of the terms set out in section 2 of the act.</p>

<p>On appeal from an order of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported ante p. 185.</p>

<p>On cross-appeals from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 74. N. J. Eq. (4. Buch.) 104.</p>

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

<p>On appeal from a decree of the, court of chancery advised by Yice-Chancellor Howell.</p>

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

<p>On cross-appeals from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 7.4 •N. J. Eq. (4 Buch.) 578.</p>

<p>On appeal from a decree of the prerogative courts affirming a decree of the Morris county orphans court admitting to probate the last will and testament of Esther J. Cooper, deceased, reported in 75 N. J. Eq. (5 Buck.') 177. Sub nom. In re Cooper’s Will.</p>

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

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