Volume 78 — New Jersey Equity Reports

<p>1. Where the duty of a trustee is a matter of doubt, he is entitled to the directions of a court of equity, that he may be safe in proceeding to execute the trust, the rule applying with full force to the trustees of a public charity; and where the trust is created by will, the proper construction of the will is a necessary prerequisite to the giving of directions.</p> <p>2. In a suit for enforcement of a public trust or charity, the attorney-general is the proper suitor, and he may file an information either of his own motion or upon the relation of any party concerned, and where a bill is filed by trustees of a public charity, seeking directions as to the execution of their trust, the attorney-general is a proper party defendant, as representing the public interest.</p> <p>3. In a suit by trustees of a public trust for directions as to execution of the trust, the heirs-at-law or next of kin of the donor are not necessary parties defendant, in view of the fact that no right of reverter arises upon the breach or violation of a public trust.</p> <p>4. In construing a provision of a will, creating a trust, the intent of testatrix as expressed by the language employed in the will as a whole is controlling.</p> <p>5. The word “ground” is defined as meaning land; estate; possession ; and in the plural, garden; land; field belonging to a homestead; land appropriated to some special use; and the limited meaning of the word “grounds.” as connoting appurtenancy to a homestead or other building, is not ordinarily to be adopted, unless it appears from the context that the word is employed in connection with some particular building or group of buildings, or that there is an intent to distinguish between the “grounds” and the other lands of the same owner.</p> <p>C. A testatrix in one item of her will devised to trustees “my house and grounds,” with all the buildings standing within such grounds, to be used for public purposes, and in a subsequent item gave the remainder of her estate to the trustees of a university to be devoted to the construction “upon the grounds of the said university” of a building to be used for certain purposes. — Held, that the term “university” was not used to designate any building or group of buildings, but the corporation, the preposition “of” denoting proprietorship and not location, and the word “grounds” — evidently used in the latter item to express the rhetorical antithesis between “my house and grounds,” used in the previous item, upon which a public hall and garden were to be established, and the establishment, of the building upon the grounds “of the said university” —will not be deemed to bear a limited or special meaning confining it to such lands as lie immediately adjacent to and are used in connection with the existing buildings of the university, but to embrace any land owned by the university so located as to make the building to be erected available for the purposes intended; and a tract not contiguous to the original and central campus upon which the existing university buildings are situated, but separated therefrom in part by a railroad, in part by a public street, and in part by land of other owners, the only communications between the tract and the central campus being by means of streets or lanes, would be “grounds of the said university,” within the meaning of the will, where owned by the university.</p>

<p>1. The bona fide residence of petitioner with' intent of remaining within the state, which P. L. 1901 pp. 1/16, 1/11 §§ 6, 1, requires to confer jurisdiction in divorce, cannot be shown by petitioner’s evidence alone; it being necessary that she be corroborated by other satisfactory evidence.</p> <p>2. In order to give jurisdiction to grant a divorce to one coming to the state from another state, there must be an actual residence for two years with intention of remaining, so as to acquire á domicile in the state; the “domicile” of a person being the place in which he has voluntarily fixed his habitation, with a present intention of making it his home, until he is induced to adopt another permanent residence by some uncertain or unexpected event.</p> <p>3. In an action for divorce by one coming to this state from another state, evidence held not to sufficiently corroborate petitioner’s evidence as to the good faith of her residence in this state or her intention to permanently remain.</p> <p>4. Declarations made by petitioner in a divorce action after the commencement of the action and shortly before the evidence was taken cannot be considered as evidence of the good faith and the permanency of her residence in the state.</p>

<p>1. The action of the parties interested is resorted to in aid of the construction of an act only in cases where the construction is doubtful, and the primary question in reference to rights and obligations under statutes relates to the meaning and effect of the statute itself, construed by the rules settled as applying to it.</p> <p>2. The ultimate control of public rights on the highways of the state is in the state legislature.</p> <p>3. Traction act of March 14th, 1893 (P. L. 1893 p. 30% % 1), empowering street railway corporations to construct their lines over highways, &c., authorizes the construction of such lines over bridges, public bridges and their approaches being “highways,” and the rebuilding as necessary any part of the roads over such highways and bridges, and hence the act necessarily limited’ the sole control over bridges previously existing in the board of chosen freeholders under 1 Gen. Btat. p. 805 § 1 and p. 1,10 §</p> <p>4. The duty of constructing and maintaining roadbeds and tracks was imposed 'on a traction company accepting a franchise under the act, without express words in the statute imposing the duty, and it having power to construct its road over bridges was bound to contribute to the expense of rebuilding a public bridge necessitated by the operation of heavier cars propelled by electricity.</p>

<p>1. A transfer of the equity of redemption by a mortgagor to a mortgagee may be valid, but when properly questioned it will be carefully scrutinized to prevent fraud and oppression.</p> <p>2. So far as a transfer of the equity of redemption of mortgaged property involved, a transfer of the mortgagor’s property as security, or in payment for services rendered by the mortgagor’s attorney, the burden was on the attorney to establish the fairness, adequacy, and equity of the negotiation, and the security or conveyance would only be allowed to stand as security for the amount shown to be fairly due.</p> <p>3. Complainant and her husband, on being arrested for keeping a disorderly house, conveyed real estate belonging to complainant, worth $11,500, subject to a first mortgage of $6,200, to their attorney, and at the same time with her husband signed a note to the attorney for $1,000, having previously paid him $400 on account of services. The husband thereafter signed another note to the attorney, in which complainant did not join, for $600, and later signed a third note for $600; the attorney executing an agreement to serve them faithfully and to reconvey the property when the notes and bail bonds had been discharged, with the right in the attorney to pledge the property to secure a discount of the notes and to procure bail. Complainant had knowledge of the first $600 note executed by the husband alone as shown in the attorney’s written agreement, and the attorney, after procuring H., one of his clients, to endorse the notes for his accommodation, induced a trust company to discount the same and conveyed the real estate to the trust company’s treasurer to secure the discount. Thereafter, in order to prevent a sale of the property on foreclosure of the first mortgage lien, H., in consideration of a payment of $500 to complainant and his assumption of all the notes and liens against the property, procured from her a conveyance of the equity of redemption.' — Held, that, though H. had notice of the agreement between complainant and the attorney, that was not sufficient to charge him with notice that there had been any oppression or unfair dealing in including all the notes as a part of the consideration for his purchase, and there being no evidence that either when he endorsed the husband’s notes, or purchased the equity, he was chargeable with notice that any of the notes were without consideration in the attorney’s hands, complainant was not entitled to a reconveyance of the property as against I-L, except on repaying him all sums which he paid and all obligations assumed by him as a part of the consideration, though originally she was not personally bound for a part thereof, under the rule that, though a married woman be not bound to pay thp debt of her husband by a conveyance of her property, she may convey it for that purpose, and if she does so the conveyance is valid both in law and in equity.</p> <p>4. As between complainant and the attorney, the property was not chargeable with anything more than the $1,600 first due on the attorney’s contract for services in which he contracted to receive $2,000 in full for all services rendered or to be rendered in the matter, and hence, as to the amount of the additional notes given to the attorney by the husband and included in the amount for which the property was conveyed to H., complainant was entitled to reimbursement from the attorney either as a contribution toward the payment she was required to make as a condition of relief against H., or as a payment to be made to her in case she failed or refused to perform the conditions.</p>

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

<p>On petition for decree of nullity of marriage.</p>

<p>1. Where the demurrer to a bill to foreclose a mortgage, interposed by defendants owning undivided interests in the mortgaged land, is a joint demurrer to the whole bill, if complainant, taking the well-pleaded allegations of the bill as true, is entitled to foreclose his mortgage on any interest of the demurring defendants, or any of them, the demurrer must be overruled.</p> <p>2. A demurrer to a bill to foreclose a real estate mortgage which specifies as a cause of demurrer that no interest has been paid on the mortgage during a period of over twenty-eight years, and that defendants insist that the bond and mortgage have become extinct, and that at the time complainant took his assignment of the mortgage it had lapsed because interest had not been paid thereon for over 'twenty-two years, sufficiently notifies complainant that the lapse of time since the last payment of interest is relied on as a bar to his right to foreclose.</p> <p>3. The object of specifications of causes of demurrer to a bill in equity is to notify complainant of the points raised against the case made by the bill, and the test of the sufficiency of the specifications is whether they exhibited the objections to the bill which were intended to be presented to the court for argument by the demurrer.</p> <p>4. A mortgage is extinct, whether the debt secured thereby is paid in cash or is presumed in law to have been paid by reason of the lapse of time and non-payment of interest.</p> <p>5. Under the rule that the object of a demurrer to a bill in equity is to obtain a decree dismissing the bill only as to the demurring defendants, a demurrer to a bill to foreclose a real estate mortgage, interposed by defendants owning an undivided two-thirds of the mortgaged property, is properly sustained, though the bill shows that complainant is entitled to foreclose as against the remaining undivided interest.</p> <p>6. Where a complainant foreclosing a mortgage undertakes to get the benefit of a payment of interest as an acknowledgment of the mortgage debt, or as a bar to the claim of adverse possession, the fact to be disclosed is the date when the payment was made, as the date when the acknowledgment of the debt or recognition of the mortgagee’s estate was made.</p> <p>7. One holding an overdue obligation may not prevent the running of limitations after his death, by providing- in his will that his executor shall not institute any proceeding to enforce the obligations or take any steps to collect the same during the lifetime of a person named, or during any other period, measured in any way.</p> <p>8. One holding overdue obligations may not prevent a presumption of payment from being established by lapse of time, after his death, by providing in his will that his executor shall not institute any proceeding to enforce the obligations during the lifetime of an individual, or during any other period specified. • -</p> <p>9. A husband and wife executed a mortgage. The husband died intestate the following year, and two years later the mortgagee assigned the mortgage to a son of the mortgagors and he held the mortgage for fifteen and one-half years, until his death, without obtaining any payment of principal or interest, or any acknowledgment of the existence of the mortgage or of the debt secured thereby. The son executed a will stipulating that his executor should not institute any proceeding to enforce the mortgage during the lifetime of his mother. This will was not admitted to probate until many years after his death. The mother, who survived the son, did not expressly or impliedly accept the postponement of foreclosure proceedings provided for in the will. — Held, that the provision in the will was without force as against the other heirs of the mortgagor, who had no notice of it for many years after the son’s death.</p> <p>10. An acknowledgment, to operate as an avoidance of the statute of limitations, must be made to the creditor, or must have been intended to be communicated to him.</p> <p>11. An acknowledgment by a debtor of the existence of a debt made to a third person is a statement against interest, standing as evidence of a fact, and may rebut the presumption of payment resulting from lapse of time.</p> <p>12. A presumption of payment of a bond and mortgage on which no payments have been made for twenty years, cannot be rebutted simply by proof in fact of non-payment unless the delay for twenty years is satisfactorily accounted for or explained.</p> <p>13. An acknowledgment of the existence of a debt made by a debtor to a stranger, who contemplated the purchase of the mortgage securing the debt, made after the lapse of twenty years, is insufficient, standing by itself, to rebut the presumption of payment, especially where the stranger endeavoring to obtain an acknowledgment refrained from disclosing his interest.</p> <p>14. Where the relation of mortgagor and mortgagee exists, the possession of the mortgagor is not adverse to the mortgagee until there is some act of disaffirmance by the mortgagor, disclosing that his possession is inconsistent with the rights of the mortgagee.</p> <p>15. A stranger who occupies mortgaged land under an open claim of absolute ownership holds adversely to the mortgagee from th.e beginning, and after twenty years of- such adverse possession his defence,' under the statute of limitations, against the mortgagee is complete, though the debt may have been kept alive by the mortgagor, and may remain in full force against him.</p> <p>16. A husband and wife executed a mortgage on their homestead. The husband died intestate the following year, and two years later the mortgagee assigned the mortgage to a son of the mortgagors, who held it for fifteen and one-half years, until his death, and during that time he was in possession with the other heirs without asserting any right against the other heirs. — Held, that the possession of the heirs was not adverse to the mortgagee, and though it continued for more than twenty years it did not bar a foreclosure, provided the debt was kept alive.</p> <p>17. Mere lapse of twenty years establishes a presumption of payment of a bond and mortgage on which no payments have been made during the period, and the presumption cannot be rebutted by proof, in fact, of non-payment "without accounting for the delay; but a partial payment made within the twenty years is a sufficient explanation of the delay and permits the enforcement of the bond and mortgage.</p> <p>18. Mere kinship between mortgagor and mortgagee, though accompanied by intimate confidential relations, does not prevent the presumption of payment after twenty years.</p> <p>19. The court, in considering the sufficiency of a bill demurred to, must accept as true the allegations of the bill.</p> <p>20. The efficacy of the defence of laches does not depend on proof that lapse of time has resulted in the actual loss of testimony through death or otherwise, but it is generally sufficient that the court cannot feel competent of its ability to ascertain the truth as well as it could when the subject of investigation was recent.</p> <p>21. Where one who acquired a mortgage twenty-two years after the last payment thereon relied on proof of facts to rebut the presumption of payment, the equitable doctrine of laches would not permit him to wait six years before foreclosing the mortgage, until the owners of the mortgaged premises and their witnesses were dead, and then have his equitable remedy of foreclosure by proving facts concerning which the dead owners and witnesses might have testified if the foreclosure had been brought while they were alive.</p> <p>22. Since a mortgagee’s estate is not recognized as existing after the debt which it secures has ceased to exist, the presumption of payment of the debt is a bar to an action of ejectment by the mortgagee.</p> <p>23. The presumption of payment of the debt secured by a mortgage, arising from lapse of time, is a bar to a suit to foreclose the mortgage.</p>

<p>Under 2 Gen. Stat. 1895 p. 2016 § 22, providing that any married woman who owns real estate in the state and living separate from her husband, who refuses to support her, may during such separation apply to the court of chancery for leave to dispose of her real estate as a feme sole, except such as came to her by gift of her husband, a married woman may obtain such order where she is living separate from her husband, and he refuses to support her, regardless of whose fault caused the separation.</p>

<p>On motion to confirm master’s report in partition suit.</p>

<p>1. Under a statute requiring that stock shall be fully paid for either in property or cash, a domestic corporation may not issue debentures for sale at ninety-three cents on the dollar with the privilege to the holders to convert them into preferred stock at seventy cents on the dollar.</p> <p>2. A domestic corporation seeking to justify its right to issue stock to its reorganization committee in payment of a debt due by it to the committee creating and controlling the corporation must, as against an objecting stockholder, show that it owes the debt to the committee.</p> <p>3. Where a domestic corporation sought to issue stock to its reorganization committee for the alleged purpose of paying a debt due by it to the committee, a stockholder objecting on the ground that there was no debt due from the corporation need not make the committee a party defendant.</p> <p>4. Where a plan for the reorganization of a bankrupt corporation called for an agreement between the bond and security holders of the corporation, its general creditors and stockholders and a reorganization committee for the taking over by the committee of the assets of the corporation and the transfer of them to a new corporation and the reorganization committee with the stocks and bonds received from the new corporation satisfied the bond and security holders and creditors, the corporation could not issue additional stock to the committee on the theory that it was indebted to the committee for money advanced by the committee without showing the existence of a loan by the committee to the corporation.</p> <p>5. In a suit by a stockholder to restrain the corporation from issuing stock and selling the same at less than par, evidence held not to justify a finding that the reorganization committee creating and controlling the corporation was a creditor of the corporation, so that it was entitled to the additional stock.</p> <p>6. A holder of a small amount of stock in a corporation may sue to enjoin the issuance of preferred stock for .sale at less than par, though the proposed issuance cannot injure his interests, since the proposed action is in violation of law.</p> <p>7. Where,' pending a suit by a stockholder to enjoin the corporation from issuing preferred stock for sale at less than par, other stockholders appeared, without objection, as parties complainant, the court could grant the relief, though the or-iginal complainant was not a tona fide complainant. '</p> <p>8. Where a corporation sought to issue debenture bonds to be sold at ninety-three cents on the dollar with the privilege of the holders of converting them into preferred stock at seventy cents on the dollar, and the corporation, to accomplish the purpose, was required to issue new preferred stock, and there was no provision that it should receive more than seventy cents on the dollar for it. the plan of the corporation could not be justified on the ground that in the aggregate the money received under the scheme would exceed the par value of the new stock.</p>

<p>1. A “plea” in equity is in effect an answer'which reduces the issue between the parties to a single point.</p> <p>2. All the facts necessary to sustain defendant’s contention must be set forth in a plea in equity, or it is bad in form; and a plea, to be good, must set up facts which constitute a complete defence either to the whole bill or to so much as it purports to be an answer or defence to.</p> <p>3. The citizens of another state are not exempt from service of process in New Jersey.</p> <p>4. A plea in equity to the jurisdiction, alleging that defendants have not been served with process in the state, nor at all, and they were, when the suit was begun, and are now, citizens of other states, is not a good plea, where it does not appear that the complainant has sought to serve defendant with process in the state, or at all.</p> <p>5. On a plea to 'the jurisdiction in equity, alleging that defendants have not been served with process in the state, nor at all, the court is not required to look to the files to determine that there was no subpoena returned served on the defendant, and that there was an order of publication made therein, but will look only at the bill and plea.</p> <p>6. Where pleas to the jurisdiction in equity on the ground that defendants are citizens of other states and have not been served with process in New Jersey, nor at all, are held bad for failure to show that any attempt has been made to serve process, leave will be given defendants to apply for leave to file amended pleas.</p>

<p>Heard on bill, answers, replications and proofs.</p>

<p>1. The mere fact that complainant’s right to an easement of passage, for which he seeks protection by injunction, is denied in the answer, will not require its establishment at law, where the undisputed facts under well-settled legal rules show that his right of way exists.</p> <p>2. A deed conveying a lot, which describes it as extending in depth to an alley, and gives the rear course of the lot as running along the alley, implies that the lot has as appurtenant to it a way to and from it, and vests in the grantee, as against the grantor and his privies, the right to the use of such way.</p> <p>3. In an action to enjoin the obstruction of a right of way through an alley to the public street by the owner of an interior lot bounding on the rear on the alley, a deed by the common grantor of complainant’s lot and the adjoining lot between it and the street, containing a similar reference to the alley, was admissible in evidence to show that the alley extended along both lots to the public street.</p> <p>4. Where deeds of record show that provisions were made for easements in an alley, and an examination would have shown the alley in actual use, the subsequent purchaser of adjacent property is charged with notice of such easement.</p>

<p>1. A business may become a nuisance, where it is not conducted with due regard to the rights of surrounding property owners, and renders-the enjoyment of their property impossible.</p> <p>2. An injunction to restrain a lawful business as a nuisance should not be granted, unless the conduct of the business invades a clear legal ri&ht of another, resulting in serious and permanent injury, which cannot be adequately compensated at law, and the granting of such relief will not inflict more serious injury upon defendant than its refusal will cause complainant.</p> <p>3. Where the evidence leaves it at least doubtful whether complainant will suffer irreparable injury from the conduct of defendant’s business, a preliminary injunction restraining the continuance of the business will be refused.</p>

<p>On bill to foreclose mortgage. Heard on bill, answer, replication and proofs.</p>

<p>1. The act of June 5th, 1787 (2 Gen. Stat. 1895 p. 1912 § 3), provides that any survey made by the proprietors of the State of New Jersey and inspected and approved by the general proprietors, or council of proprietors of either division of the state, and by their order recorded in ,the secretary of state’s office or in the surveyor-general’s office within the division, shall, after such record, “preclude and forever bar such proprietors and their successors from any demand thereon.” — Held, that the statute does not bar a former proprietor or his grantee to whom an allotment in severalty had theretofore been made by an unrecorded survey, and does not nullify outstanding unrecorded surveys as against subsequent surveys at the time of record, but only bars the proprietors from asserting a claim to lands covered by surveys which had been duly inspected, approved and recorded.</p> <p>2. The act of March 27th, 1719 (Allin. L. p. 1/8), requires the surveyors-general of the two divisions of the province to establish offices at places specified, in which offices shall be entered the surveys of all lands subsequently made within the province, and that all certificates of surveys in the hands of any of the inhabitants of the province or of any of the neighboring provinces which are not within two years duly recorded, and all surveys made, the certificates whereof are in the hands of people living beyond seas, which are not within three years duly recorded either in the recorder’s office or in the surveyor-general’s record, shall be void, and any succeeding survey made and recorded shall be good and-sufficient as if no former survey had been made. — Meld, that the statute is merely, regulative with a purpose to avoid confusion rather than to establish the record as a jurisdictional step essential to give vitality to a survey.</p> <p>3. Rev. Stat. 181/1 p. 61/2 provided that’ conveyances should be recorded in the office of the clerk of the court of common pleas of the county “in large well-bound books of good paper to be provided for that purpose,” and directs that such records shall be received in evidence in any court of tihe state. — Meld, that the record of a deed in a book, endorsed “Book A of Miscellaneous Becords,” recorded while that statute was in force and before the passage of P. L. 1898 p. 686 § 41, providing for the record of deeds in a book “to be called and backed ‘Deeds,’ ” was admissible in evidence.</p> <p>4. Becital in an ancient deed of any antecedent deed or document consistent with its own provisions will be presumptive proof of the former existence of such deed or document, especially where no evidence is offered to rehut such presumption.</p> <p>5. In a suit to quiet title, recitals of title in ancient deeds are admissible to establish the fact of a lost prior survey supported by a valid warrant, or of a survey that has been subsequently approved by the council of proprietors, upon which the title of the party offering the deeds depends.</p> <p>6. Under Pat. L. p. 898, rendering a conveyance of no effect against a subsequent purchaser for a valuable consideration unless the conveyance is recorded prior to such purchase, unless the purchaser had notice of the instrument at the time of the purchase, the burden of proof of such notice rests upon defendant in a suit to quiet title brought by a complainant who claims under such purchaser against a defendant claiming under tihe unrecorded conveyance.</p> <p>7. Where a purchaser of land for a valuable consideration takes without notice of a prior conveyance, his title may be transmitted to others free from the operation of the unrecorded conveyance, although such others are charged with notice.</p> <p>8. Evidence in a suit to quiet title held insufficient to show that a purchaser of property, under whom complainant claimed, had notice of a prior conveyance under which defendant claims.</p>

<p>On bill for direction in performance of trust.</p>

On final hearing on bill, answer, replication and proofs. The controversy in this case is over the proceeds of an insurance policy issued on the life of Frederick A. Prince.

On final bearing. On bill, answer, replication and proofs. The bill in this case is filed by stockholders of the Passaic Steel Company against Fairchild, Searing and Bell, who, it is claimed, were the promoters of that company, to recover in its name moneys which, it is alleged, were secret and undisclosed profits made by the defendants in the process of promoting the corporation.

<p>1. Where a policy of insurance is procured by a bailee for the benefit of a bailor, there is a direct insurance on the goods of the bailor, giving him an interest in the policy from the time of its issuance, subject to any interest which the bailee may have under the policy.</p> <p>2. An express company procured insurance against loss by fire on merchandise in transit between certain points, for which they were liable as common carriers. While such policy was in force the express company received goods of a shipper which, while in the possession of the express company, were destroyed by fire, after which the express company assigned to the shipper its rights in the insurance money represented by the policy, to the extent of the value of the merchandise, and thereafter recovered the sum for which the policy had been adjusted, which was claimed by the shipper and by its own receiver, the express company claiming no interest in the policy. — Held, that the money derived from the policy belonged to the shipper, the only interest of the carrier being in the freight money.</p> <p>3. An express company procured fire insurance on merchandise in transit and for which it was liable as a common carrier, and after a loss of merchandise in transit, and just before it was declared insolvent, it assigned to the shipper of the merchandise the insurance money represented by the policy to the value of the merchandise. The Corporation act (P. L. 1896 p. 298 §61/) makes it unlawful for a company, in contemplation of insolvency, to sell, convey, or assign its property. — Held, that, as the shipper’s right to the insurance money arose out of the policy of insurance and became efficient for its protection as soon as the insurance was effected, it was not affected by the express company’s insolvency.</p>

<p>1. The widow's seizin of land assigned as dower is a continuation of her husband’s seizin, and an heir cannot obtain seizin in deed by entry, even before assignment; a subsequent assignment defeating his seizin acquired by entry.</p> <p>2. Dower, when assigned, becomes the paramount estate, and hence is preferred over encumbrances created after the marriage.</p> <p>3. Neither P. L. 1898 p. G53 § 26, permitting lands held by tenants in common to be partitioned, though they may be limited over after an estate for life or any estate therein, nor Gen. Stat. p. 2988 § 18, of the act concerning the sale of land providing for a sale free from dower, authorize the partitioning of a dower estate without the widow’s consent for the benefit of the tenants in common by a sale thereof, in lieu of actual partition.</p> <p>4. A life estate may be sold without the consent of the life tenant only when it exists as an interest in land the remainder of which is in others who are entitled to possession with the life tenant or exclusive of his possession.</p>

<p>On application for appointment of receiver in aid of decree pending appeal.</p>

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

<p>1. Where a water company sought a preliminary injunction to restrain the authorities of a city from preventing it from opening the city's streets to lay water pipes, it was no ground for relief that the city authorities acted arbitrarily and unreasonably.</p> <p>2. An offer by one litigant to .another stated to be without prejudice is not admissible in evidence.</p> <p>3. An offer of compromise stated to be made without prejudice, not being admissible in evidence, cannot be pleaded. Therefore an amendment should not be permitted to allow the incorporation of such an offer into a bill.</p> <p>4. Where a water company, without right, attempts to open city streets to lay pipes, the city may either resist the invasion of its property or obtain equitable relief, preventing the invasion.</p> <p>5. Where a water company sought an injunction to restrain a city from preventing' it opening certain streets, and the city filed a cross-bill seeking to restrain the water company on the ground that the company was without right, the company could not dismiss the bill and cross-bill.</p> <p>O. Where the complainant answered a cross-bill filed to the original bill, he cannot, on dismissing the bill, have a dismissal of the cross-bill. 7. Where a bill is answered, it must be fully answered; and hence an answer to a cross-bill which failed to answer interrogatories is open to exception.</p> <p>8. Public grants of power to corporations are to be strictly construed, and whatever is not- plainly granted must be taken to have been withheld.</p> <p>9. A comxjlainant is not entitled to an injunction to protect a right which dex^ends on a disputed question of law.</p> <p>10. A water company was organized under act of April 21st, 1876 (Rev. 1877 p. 1365; 2 Gen. Siai. 1895 p. 2199), as amended by act of March 12th, 1880 (P. L. 1880 p. 273), which, in section 1, provided that a corporation might be formed to construct and maintain water works in any city, town, village, or seaside resort or borough, &c., and in section 2 required the filing of a certificate with the name of the city, town, or village where the works were to be constructed, with the consent in writing of the corporate authorities of the city or town to be supplied with water, and section 12 authorized such companies to lay their pipes under the streets, &c. A company was organized to supply water to two municipalities, and the consent of both was filed. — Held that, under the rule that what is not granted is presumed to have been withheld, it was doubtful whether a corporation to supply two towns with water was valid, and whether the consent of the two towns gave the company the right to open the streets; so that a preliminary injunction to restrain one of the cities from xneventing the company from opening its streets to lay mains could not be issued.</p> <p>11. Where a municipal water company sought to justify the laying of enormous pipes through the city’s streets upon the ground that they were going to extend their mains without the corporate limits to supply people on adjoining roads, a thing the company could do under the direct provisions of 2 Gen. Stat. 1895 p. 2202 § 369, upon condition that the consent of the owners on the road be secured, the consent of such owners is a condition precedent to compelling the city to allow the extension, and, until that be shown, the company is not entitled to a preliminary injunction to restrain the city from preventing the laying of the pipes.</p> <p>12. A water company sought a preliminary injunction to restrain the city from preventing it from opening the streets to lay their mains. The company claimed to have the right to increase and extend mains outside of the city, which right the city denied. — Held, that the preliminary injunction would be refused, for, if granted, the mains could be laid before the matter could be decided, and hence the city would be irreparably injured if the company did not have the right which it claimed.</p>

<p>An administrator having adopted loose methods in dealing with the affairs of his estate, and having delayed his accounting for more than fifteen years after the time when it ought to have been filed, doubts arising upon the evidence -taken on exceptions to his account were resolved against him.</p>

<p>On application for appointment of new trustee, &c.</p>

<p>On appeal from a decree of the Essex county orphans court denying probate of the paper-writing purporting to be the last will and testament of Lucinda M. Terwilliger, deceased.</p>

<p>On appeal of Anderson Bourgeois, administrator, from a decree of the Atlantic county orphans court.</p>

<p>Successive stop notices having been served upon the owner of a building under section 3 of the Mechanics’ Lien law (P. L. 1898 p. 588), and one of the stop notice claimants having commenced suit against the contractors to establish his claim, a subsequent claimant, who had an interest in defeating the claim in suit, undertook and conducted the defence in the name of the contractors and with their consent, but for its own use and benefit — Held, that the party thus undertaking and managing the defence to the suit was concluded by the resulting judgment so far as it established the claim of the plaintiff against the contractors.</p>

<p>1. The jurisdiction conferred by the act of 1870 (Gen. Stat. p. SJ¡86) upon the court of chancery, to settle disputed titles to land by a suit brought for the purpose by the party in possession, is simply an extension of its function of entertaining bills quia, tvmet. For this reason when an issue at law has been directed in such suit and the verdict rendered thereon is attacked the court of chancery should follow the same practice which prevails when a similar situation arises in proceedings under a bill quia timet; viz., consider, among other things, alleged trial errors in order to determine whether the erroneous rulings (if they appear) iaore such as to destroy the value of the verdict as a means of satisfying the conscience of the chancellor.</p> <p>2. On an appeal from an order of the court of chancery denying a new trial of an issue at law, on a bill filed to quiet title, under the act of 1870, the question for determination is, whether a new trial was properly refused, and not whether the reasons given by the court for denying it were sound.</p> <p>3. Conveyances of lots by reference to a map made by the vendor, and publicly exhibited in the office of his sales agent, describing them as bounding on a designated street, shown on the map, constitute a dedication to public use of that street as laid out thereon.</p> <p>4. When a street has once been dedicated, the right of the public to appropriate it to their use at any time when their wants or convenience require it cannot be defeated or impaired by any subsequent act of the dedicator or of those claiming under him.</p> <p>5. A street delineated on a dedicating map as extending to a public navigable river will be continued to the new water front obtained by filling in by the owner under legislative sanction.</p> <p>6. Where the public rights in a dedicated street have been extinguished by a grant from the state to the dedicator or his grantees, a rededication of the street to public use is created by the subsequent making of conveyances, by the state’s grantee, by reference to the original dedicating map and describing the property conveyed as bounding upon that street.</p>

<p>1. On a bill by two citizens for injunction against the special nuisance to their respective dwelling-houses caused by the noises of the crowds who attended Sunday baseball games in a park close by, the affidavits of others, not parties to the litigation, showing annoyance to their homes by the noises complained of, are without special weight in determining the propriety of preliminary injunction, as such bill is not filed on behalf of the public to restrain a public nuisance.</p> <p>2. A preliminary injunction ought not to be ordered unless from the pressure of an urgent necessity, and unless the injury or damage to be prevented, during the pendency of the suit, is in an equitable point of view of a character to cause irreparable injury.</p> <p>3. Complainants, whose dwelling-houses were near a baseball park, filed a bill to restrain defendant from holding baseball games on Sundaj's, and filed affidavits to show that their peace and quiet on Sundays were disturbed by the noises of crowds attending the Sunday ball games, and by the confusion made by the crowds in coming to and going from the games. — Held, that the rule that a preliminary injunction should not issue unless the injury resulting from the invasion of complainants’ rights was irreparable was controlling, and that the disturbance of the peace and quiet of complainants’ dwelling-houses on Sunday by noises which on other days are not particularly objectionable to them did not constitute such an irreparable mischief or injury as to require the issuance of a preliminary injunction.</p>

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

This is a bill to quiet title filed by the holder of a tax title deed made under the thirteenth section of the Martin act. A decree pro confesso was entered against all defendants except the American Baptist Publication Society. It filed an answer setting up a mortgage upon the property held by it at the time of the sale, and claiming it to be still a valid lien.

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

The complainant’s bill charges that on June 7th, 1907, a written agreement was, made between him and Charles K. Hinchman, now deceased, by which the complainant became the manager and was to have the entire control of Hinchman’s cranberry interests at Taunton, comprising the Centennial pond and two houses.

This was a bill for specific performance of .a contract for exchange of real property. The defendant’s property is in this state, but complainant’s is in the city of New York in the district known as Morrisania. Defendant applied to a title guar-' antee companjr for a guaranty of complainant’s title, which that company refused unless the question of encroachment of the front wall of the building on Park avenue were excepted from the guaranty.

<p>Ileirs-at-law seeking through the aid of the court of chancery to set aside a deed of land procured from their deceased ancestor by fraud and undue influence are not deprived of their standing for that purpose by the fact that the ancestor has executed an instrument purporting to be a will and to devise the same land to the grantees in the deed but which instrument is admittedly invalid for such purpose.</p>

On appeals from an order and decrees of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 77 N. J. Eq. (7 Buch.) 166.

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported in 76 N. J. Fq. (6 Buch.) 119.</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-Chancellor Emery.</p>

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

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Walker, whose opinion is reported in 77 N. J. Eq. (7 Buch.) 206.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Walker, whose opinion is reported in 77 N. J. Eq. (7 Buch.) 208.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Reed.</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 Vice-Chancellor Garrison, whose opinion is reported in 75 N. J. Eq. (5 Buch.) 371.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 77 N. J. Eq. (7 Buck.) 119.</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 Vice-Chancellor Learning.</p>

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

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 75 N. J. Eq. (5 Buch.) 189.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 76 N. J. Eq. (6 Buch.) 475.</p>

<p>1. In construing a will, the object to be attained is to determine the intent of the testator as gathered from the whole document as applied to the testator’s situation. ■</p> <p>2. On the question whether provisions for maintenance of children are trusts imposed on a parent, where no trusts are declared in express terms, the general rule is that, if the language in an instrument is sufficient to clearly express an intention that property shall be held in trust for the maintenance of children, the court will enforce the trust.</p> <p>3. Where a bequest is made so that the legatee may use or dispose of the income for the benefit of himself and the maintenance or education of his children, the trust is in general created for the children in common with the interest of the parent.</p> <p>4. Where a clause in a will directed the trustees to pay the testator’s wife out of the income of his estate during her natural life, and at suitable periods, such sums of money that she should “want or require” for her comfortable maintenance, and, during the minority of his children, for the support, maintenance, and education of such children also, the power and duty of deciding upon the amount wanted or required for the support and maintenance of the widow and minor children was intended to be upon the executors as trustees rather than upon the widow, so that the words “want or require” are an expression of necessity, equivalent to “need,” and not to “wish or desire.”</p>

<p>On petition for divorce. On exceptions to master’s report adverse.</p>

<p>On bill and supplemental bill. On bill. On applications for preliminary injunctions. •</p>

<p>On information.</p>

<p>1. A grant by the legislature by P. L. 1867 p. B51 to a corporation incorporated under act December 31st, 1824, creating a canal corporation, of a basin adjacent to the terminus of its canal in the Hudson river, is not within P. L. 1869 p. 1017 authorizing riparian commissioners to grant lands under water to grantees having prior legislative grants, and thereby curing defective grants.</p> <p>2. A conveyance by riparian commissioners under P. L. 1869 p. 1017 providing that a conveyance shall not merely pass the title to the land described but the right of the grantee to exclude to the exterior bulkhead line the tidewater by filling in or otherwise improving the same and to appropriate the land to exclusive private use, acquires a personal right to appropriate the land granted to any use he may see proper.</p> <p>3. A general affirmative statute does not repeal' a prior particular one unless there is such an irreconcilable inconsistency between them as indicates an intention to repeal.</p> <p>4. P. L. 1871 p. 444, authorizing a canal corporation created by act December 31st, 1824, to lease its canal or any part thereof with appurtenances and franchises either “perpetually” or for such shorter time as may be agreed on between the parties, merely authorizes the corporation to lease its property for a term not exceeding the period fixed for its existence, the word “perpetually” not giving the corporation any property or franchise that it did not previously have.</p> <p>5. The state is not presumed to have parted with any of its property in the absence of conclusive proof of an intention to do so, and any ambiguity operates against the grantee and in favor of the public.</p> <p>6. A grantee under a conveyance by the riparian commissioners under P. h. 1869 p. 1017 authorizing conveyances to grantees having prior legislative grants, &c., may not rely on P. B. 1874 P- 103 empowering the riparian commissioners to make conveyances, the grantee applying for the grant in the manner prescribed by the act of 1869 and the commissioners acting under that act.</p> <p>7. Ordinarily a court of chancery has no jurisdiction to pass on legal titles.</p> <p>8. The court of chancery, in a proceeding by the attorney-general under P. L. 1907 p. 96 to determine title to riparian lands in which the state claims an estate, must determine the legal question according to legal rules.</p> <p>9. Where the state could not bring an action at law to test the legal title to land, and it could not sue in equity for that purpose until authorized to do so by P. L. 1907 p. 96, providing for the determination of title to riparian lands in which the sta.te claims an estate, it was not barred by laches.</p> <p>10. The government as a general rule is not barred by the laches of its officers.</p> <p>11. Where the state in a proceeding under P. L. 1907 p. 96 for a decree adjudging the invalidity of a grant made by the riparian commissioners to a railroad company under the alleged authority of P. L. 1869 p. 1017, tendered itself ready to submit to such terms as the court should establish by its decree, the defence of laches was not available.</p>

<p>1. After examination of the trusts created and declared in a trust deed dated April 1st, 1895, in a creditor’s suit to satisfy a judgment out of , land conveyed by a judgment debtor (the settlor) to a trustee for himself and his children, where it appeared that the complainant’s debt was contracted after 1902 and the judgment recovered October 25th, 1905— Sell, that such deed is a fraudulent device as to all the future creditors of the settlor.</p> <p>2. Under the authority of Washington National Bank v. Beatty, 77 N. J. Bq. (7 Bueh.) 252, the rule seems to be now settled in this state that a voluntary conveyance made with actual fraudulent intent is void as against any subsequent creditor of the grantor although his debt was contracted long after the voluntary conveyance is made, and was not then contemplated by the grantor as a possibility.</p> <p>3. As between the judgment debtor and the trustee and his children, such deed is valid, and will be set aside only so far as is necessary to pay the complainant’s debt.</p> <p>4. So much of such deed as defines the trust further examined, and under it the settlor was held to take a life estate in the rents and income of the estate (which amounts to the same thing as an equitable life estate in the corpus), and his equitable interest is primarily liable for the debt, and should be exhausted before recourse is had to the interests of the remaindermen.</p> <p>5. In case recourse is had to the interests of the remaindermen, provision may be made in the decree for apportioning the complainant’s debt equitably among the different shares.</p>

<p>This is a bill by Lawrence A. Van Eiper against executors and trustees of his father’s will. He sets out in his bill that his father, Hartman V. Van Eiper, made a will upon the 20th day of November, 1902, and died on the 24th of December, 1902; and that in and by his will be constituted George S. Hilton, Walter E. Hudson and Jane E. Van Eiper, executors, and that they have qualified; that Carrie E. Van Eiper is the wife of Lawrence, the complainant, and is forty-five years of age, and that they were married on the 12th of November, 1889, and that the defendants, William and Lawrence A. Van Eiper, Jr., are the lawful issue of their marriage, they being infants of the ages of eighteen and sixteen, respectively. He then sets out that his father died intestate as to certain of hi's property, because he claims that “under the tenth clause of the will the attempted trusts violate the rule against perpetuities or accumulations.</p> <p>The tenth clause of the will is as follows:</p> <p>“Tenth. I give, devise and bequeath all the rest, residjie and remainder of my estate, to Jane E. Van Riper, George S. Hilton and Walter R. Hudson, in trust:</p> <p>“First: To rent and lease any and all real estate owned by me and not hereinabove specifically devised until my youngest grandchild now living shall attain the age of twenty-six years or would be of the age of twenty-six years if then living, to collect and receive the rents, issues and profits arising therefrom and out of the same pay all charges for repairing, taxes, water and insurance and invest the balance in bonds, mortgages or other proper securities or deposit the same in some safe banking institution at interest, and keep the same, with the income, profits, interest and accumulations thereon invested as aforesaid.</p> <p>“Second: To invest all moneys which shall come into their hands as such trustee, or which may be derived from any of said real estate, sold and conveyed, under and by virtue of the power and authority given to them in this will, or which may be derived from bonds, mortgages, or other securities belonging to the said residue and remainder of my estate, in bonds, mortgages or other securities, or deposit the same in some safe banking institution at interest and keep the same with the income, profits, interest and accumulations thereof, invested as aforesaid.</p> <p>“Third: When my youngest grandchild now living shall attain the age of twenty-six years or would if then living be of the age of twenty-six years, my said trustees shall render to the propel’ courts their accounts and after the same have been approved and allowed them, my trustees compensated for their serving herein, and all costs, charges and expenses paid and satisfied, my trustees shall, if my wife, Jane E. Van Riper, is still living, set aside bonds, mortgages or other securities to the value of Ten Thousand Dollars and pay the income thereof to the said Jane E. Van Riper in frequent payments as long as she shall live. If my son, Ackerman Van Riper, is then living, my said trustees shall set apart other bonds, mortgages or other securities, to the value of Ten Thousand Dollars; and pay the income thereof to the said Ackerman Van Riper as long as he shall live.</p> <p>“My trustees shall then assign and set over to Jane Van Riper, one of the children of my deceased son George Van Riper, money, bonds, mortgages and other securities, equal in value to the one-fourth part of all the money, bonds, mortgages or other securities then remaining in their hands and shall convey to her in fee simple, by good and sufficient conveyances in the law the equal undivided oné-fourth part of all the lands and real estate then held by my trustees and shall then transfer, assign and set over to Maggie Van Riper the other child of my deceased son, George Van Riper, money, bonds, mortgages and other securities, equal in value to the one-fourth part of all moneys, bonds, mortgages or other securities then remaining in their hands, and shall convey to her in fee simple, by good and sufficient conveyances in the law, the equal undivided one-fourth part of all the lands and real estate held by my trustees. My trustees shall then divide all the rest, residue and remainder of all the moneys, bonds, mortgages and other securities remaining in their hands among all the children of my son, Ackerman Van Riper, then living, and shall convey to the children of the said Ackerman Van Riper, the equal undivided one-half of all the lands and real estate held by said trustees, it being the intention that all the children of my son, Ackerman Van Riper, whether living at the time of my decease, or born afterwards, shall share in the distribution of estate herein provided and set forth.</p> <p>“In the event of the death of either Jane Van Riper or Maggie Van Riper, children of my deceased son, George Van Riper, before attaining the age of twenty-six years and without lawful issue, leaving her sister her surviving, then I give, devise and bequeath all the lands, real estate, money, bonds, mortgages and other securities, herein devised and bequeathed to the child so dying, to the surviving child, her heirs and assigns forever.</p> <p>“In the event of both the said Jane Van Riper and Maggie Van Riper dying before attaining the age of twenty-six years and without lawful issue, and leaving a child or children of my son, Ackerman Van Riper, surviving them, then and in that event I give, devise and bequeath all the lands, real estate, money, bonds, mortgages and other securities herein devised and bequeathed to the said Jane Van Riper and Maggie Van Riper, to the children of my son, Ackerman Van Riper, their heirs and assigns forever.</p> <p>“In the event of the death of any of the children of my son, Ackerman Van Riper, before attaining the age of twenty-six years, and without lawful issue, leaving a brother or sister, or brothers or sisters him or her surviving, then and in that event, I give, devise and bequeath all the lands, real estate, moneys, bonds, mortgages and other securities herein devised and bequeathed to the child or children so dying, to the surviving child or children of my said son. Ackerman Van Riper, to them, their heirs and assigns forever.</p> <p>“In the event of all the children of my son Ackerman Van Riper dying before attaining the age of twenty-six years without leaving lawful issue and leaving a child or children of my son, George Van Riper, surviving them, and in that event, I give, devise and bequeath all the lands, real estate, moneys, bonds, mortgages and other securities, devised and bequeathed to the children of my son Ackerman Van Riper, to the children of my son George Van Riper, their heirs and assigns forever.”</p> <p>The other parties are the executors and executrix of the will, the widow individually, the grandchildren of the testator, and Carrie E. Yan Riper, the wife of the complainant.</p>

<p>On motion to strike out bill.</p> <p>The bill in this case sets out, inter alia, that Clarence Kelsey was the holder of second and third mortgages upon certain premises owned by one Kupfersmith; that Samuel Weinberger now holds the first mortgage on the said premises, which said first mortgage was originally held by Charles Schlagater. The bill contains this charge:</p> <p>“That on or about September 25th, 1907, your orator not having any policy of insurance to cover and protect his investment on said two mortgages, wrote said Hyman Kupfersmith requesting him to forward a policy to your orator; that your orator is informed and believes that said Hyman Kupfersmith took said letter to Ernest A. Moore. Esquire, the local agent at the city of Paterson of the Agricultural Insurance Company of Watertown, New York * * * and directed the said agent to issue a policy of fire insurance insuring him for three years against loss or damage by fire to said dwelling-house to an amount not to exceed $750. and further directed said agent to annex to said policy a mortgagee clause providing that the loss or damage thereunder, if any, should be payable to said Charles Schlagater as first mortgagee and to your orator as second mortgagee as their interests might appear, and to contain the usual provision that said insurance as to the interest of said mortgagees only therein, should not be invalidated by any act or neglect of the mortgagor or owner of said dwelling-house; and that said Hyman Kupfersmith further instructed said agent that said policy was intended for your orator in compliance with the request contained in the said letter and that when said policy was prepared and ready for' delivery it was to be mailed directly to your orator by said agent; and that said agent read said letter of your orator and agreed with said Hyman Kupfersmith to comply with the request of your orator therein contained and the said instructions and request of said Hyman Kupfersmith ; that on or about December 1st, 1907, your orator received through the mail direct from said agent a policy of insurance issued by the said Agricultural Insurance Company of Watertown, New York, numbered 2370 and countersigned by said agent, which policy of insurance your orator now brings here into court.”</p> <p>The policy itself is not attached to the bill, nor is any copy thereof attached, but the original policy was tendered at the time of the argument and such course was not only not objected to by the defendant but throughout both sides have treated the ease as if the policy in question was actually before the court by oyer or other proper course of proceeding, and I deem it improper, therefore, to avoid deciding the issues because of this irregularity, and shall consider the case as if the policy itself or a copy thereof was annexed to the bill.</p> <p>Attached to the policy there is the usual “mortgagee clause.” This clause, as is well known, is a printed form in which blanks are left for the insertion of the names of the mortgagee or mortgagees. Upon the blank which was used in this case and attached to this policy the agent had written in the name of “Charles Schlagater, first mortgagee,” and then, at the bottom of all of the printed matter, but before the date and the signature of the agent, he had inserted the name “Clarence Kelsey, second mortgagee.”</p> <p>With respect to this the bill charges</p> <p>“that in filling' out the printed form of said mortgagee clause the said agent intended to insert the name of your orator followed by the words ‘as second’ and preceded by the words ‘Charles Schlagater as second mortgagee and’ at the top thereof, but after writing in the name ‘Charles Schlagater’ at the left of the top line, he found that there was not enough space left in which to conveniently or legibly insert the name of your orator preceded by the words ‘as first mortgagee and,’ and thereupon, and finding no other space in which to insert your orator’s name, he wrote the word ‘first’ to the right of the said top line after the printed word ‘as’ and inserted the name of your orator followed by the words ‘second mortgagee’ at the bottom of said mortgagee clause, over the date and name of'said agent and partly across the printed matter of said clause; that accompanying said policy was a letter from said agent notifying your orator that said policy was issued at the request of said Hyman Kupfersmith as insurance on said property for your orator, or to that effect.”</p> <p>T3ie bill then goes on to recite that the complainant looked at the said policy and was satisfied that the clause as written showed the intention of the company to insure him, and put the policy away and had no occasion to recur to the matter until the month of December, 1908, when Moore, the above-mentioned agent of the company, called upon him and notified him of a fire and conversed with him about his insurance. He then sets out various actions at law which were brought upon the policy and shows that the defendant company in the law suits contends that the written clause does not include Kelsey as a party to the contract.</p> <p>His prayer is that the clause as written be reformed in accordance with what he charges was the intention of the parties, so that the mutual mistake which was made shall be corrected and the clause will read that Charles Schlagater as first mortgagee and Clarence Kelsey as second mortgagee are each contracted with in the terms of the said mortgagee clause.</p> <p>The bill also prays for an injunction preventing the defendant company from setting up as a defence in any law action the policy in its unreformed condition.</p> <p>To this bill the defendant objects on various grounds which will be dealt with in the opinion, and moves to strike out the said bill under the two hundred and thirteenth rule.</p>

<p>Heard on petition and answer, cross-petition and answer and proofs in open court.</p>

<p>1. The words in a will must be taken in their natural meaning.</p> <p>2. The heirs are not to be disinherited by a will unless a clear intent appears by its language to that effect.</p> <p>3. Testator gave his residuary estate to trustees to support a son at a cost of not exceeding $3,000 a year, and to pay a daughter for life $1,000 annually, and he directed that the income from the remainder should, during the life of a brother, be divided into four parts, one part of which should be paid to the brother for life and the other parts to enumerated beneficiaries, and that at the death of the brother the income-given him should be paid to his eldest daughter until the death of the son and daughter of testator, and at the death of the survivor of them the executors should sell all the real estate then unsold and divide the proceeds equally-into six parts, to be disposed of in a manner prescribed. — Held, that testator did - not dispose of the remainder of his estate except the proceeds of real estate unsold at the time of the death of his brother and son and daughter, and the words “proceeds of real estate then unsold” cannot be construed to mean real estate sold by the executors before that time on the theory of equitable conversion, and hence there was a partial intestacy.</p> <p>4. If possible, a will must be so construed as to dispose of all of testator’s estate; but the court, to prevent intestacy, may not disregard unambiguous and clear language producing intestacy.</p>

<p>1. Where a contract for the building of a house was made and signed after the completion of the house, its terms control, and cannot be varied by parol evidence.</p> <p>2. In a suit for the specific performance of a written contract for the sale of a lot and the erection of a building thereon, the purchaser to pay a stated amount for the lot and the actual cost of the building, evidence held to show that the contract was reduced to writing before, and not after, the cost of the building was ascertained so that the cost of the building, as stated in the contract, was not conclusive, so as to exclude parol testimony.</p> <p>3. A court of equity will reform a written instrument where the contracting- parties entered into it through a mutual mistake of fact; and hence, where a purchaser and a development company entered into a building contract, and when its terms were reduced to writing- they were changed through mistake, the court will reform the instrument.</p> <p>4. One excepting to the report of a master has the burden of showing that the master erred.</p> <p>5. Where a contract between a development company and a purchaser provided that the purchaser should pay $800 for his lot and the exact cost of constructing a house which the development company was to build for him, the development company is entitled to remuneration for money expended for blank building contracts and for filing the same, for telephone charges notifying the president of the company that the building- was injured, and for money expended in straightening it after it was damaged by wind.</p> <p>O. Charges for examining the title, in order to obtain a mortgage on the lot, which the purchaser was to assume, is not a proper item of cost of erection of the building.</p>

<p>Where a husband during a period of years abused his wife and then deserted her, the husband’s misconduct relieved the wife from the duty of seeking his return, and she could obtain a divorce for desertion.</p>

<p>1. A deed is inoperative until it is delivered by the grantor.</p> <p>2. A deed is inoperative until accepted by the grantee.</p> <p>3. The delivery of a deed is a matter of intent.</p> <p>4. The acceptance of a deed depends upon the grantee’s intent.</p> <p>5. The delivery of a deed may be inferred from the grantee’s possession thereof, but such inference is rebuttable by evidence.</p> <p>6. The acceptance of a deed may in some cases be inferred from the probability that the grantee accepted that which was favorable to him; but such inference is rebuttable.</p> <p>7. Evidence held not to show an acceptance by the grantee of a deed executed by her husband.</p> <p>8. Evidence held to show that neither the grantor nor grantee intended that a deed be presently operative as a conveyance.</p>

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

On final hearing on bill, pleadings and proofs. Complainant is the owner of a rectangular lot of land the dimensions of which are sixty feet by one hundred feet. The land is not adjacent to a highway and no means exists for travel to or from complainant’s lot without the'necessity of passing over the land of others. The bill seeks to establish a way of necessity across the land of defendant.

<p>On bill for injunction. Hearing at return of order to show cause.</p>

<p>On petition to determine right of parties in chattels in possession of receiver.</p> <p>In September, 1909, a written conditional sale agreement was made between Charles G. Conn, a manufacturer of musical instruments in Indiana, and the Roach’s Banda Mexicana Company, a corporation of Colorado, whereby Conn agreed to sell to that corporation certain musical instruments upon condition that the corporation would pay for the same in certain specified installments, it being stipulated in the agreement that title should remain in the vendor until the installments were fully paid. The contract was made in the State of Indiana and the musical instruments were at that time in the possession of Conn at his factory ip that state. The contract was signed by the corporation in the State of Colorado, but with the understanding that it should not be operative until it was received by Conn in Indiana and there approved by him. The corporation maintained an organization of musicians commonly known as a brass band, and its business was that of supplying musical concerts at such places as the band should be engaged for that purpose. As soon as the contract was received by Conn and by him approved the instruments were shipped, by order of the corporation, to the band; which was in Mexico. The band thereafter performed •at various places in Mexico and the United States, and in the summer of 1910 performed at Atlantic City, in this state. While there a chattel mortgage covering the musical instruments was executed by the corporation to John C. Talbott, a resident of the State of Colorado, which mortgage was promptly recorded in this state, in Atlantic county. Talbott had no knowledge of the existence of the conditional sale agreement and believed the corporation to be the owner of the instruments. The agreement has not been recorded in this state. Since the execution of the chattel mortgage a receiver of the corporation has been appointed by this court by reason of its insolvency, and the instruments are now in the possession of the receiver. The present proceeding is to determine whether the conditional sale agreement is valid as against the mortgagee.</p> <p>At the time the conditional sale agreement was executed -it was contemplated by the parties to that agreement that the musical instruments were to be used by the band in the various states of the United States in which it should be engaged to perform. It was also known to the parties that the band had made an engagement to perform at Atlantic City in the summer of 1910, for a clause in the agreement made provision for an order in favor of Conn, on the party in Atlantic City who was to employ the services of the band, for a specified percentage of the money to be earned by the band under that engagement.</p>

On bill, answer and agreed state of facts. Tb.e bill is filed to procure a construction of the will of James Kennedy, deceased.

<p>On bill, cross-bill and plea.</p> <p>Complainant’s bill seeks to foreclose a mortgage against defendants’ real estate. Defendants have answered and have also filed a cross-bill which seeks equitable relief against the mortgage. Complainant has filed a plea in bar to the relief prayed by the cross-bill, and the present inquiry is to determine the sufficiency of the plea.</p> <p>The cross-bill sets forth the following facts: The mortgage which is sought to be foreclosed was made by defendant Lawrence to one Godfrey. Insurance policies on the mortgaged premises were assigned by Lawrence to Godfrey as collateral security to the mortgage. The mortgage contained the usual insurance clause whereby the mortgagor agreed to keep the premises insured and assign the insurance to the mortgagee as collateral security, and, failing in that, the mortgagee was authorized to insure the premises at the expense of mortgagor, and</p> <p>“the uremium paid for effecting the same shall be a lien on the mortgaged premises, added to the amount of the said bond or obligation and secured by these presents (the mortgage) and payable on demand, with legal interest.”</p> <p>The policies which mortgagor had assigned to mortgagee expired and mortgagor failed to effect new insurance by reason of the fact that he was not aware that the policies had expired. Mortgagee then effected insurance on the mortgaged premises “in pursuance of the said agreement contained in the said indenture of mortgage,” in an amount in excess of the amount of the mortgage. A loss by fire then occurred and the insurance company paid the loss to the extent of the mortgage and took from the mortgagee an assignment of the mortgage in the name of complainant, who now holds the mortgage in trust for the insurance company. The cross-bill prays that the payment of the insurance money to the mortgagee may be decreed to operate as a satisfaction of the mortgage.</p> <p>The plea is to the whole cross-bill and sets forth a single fact as follows: “Said Lincoln Godfrey (mortgagee) did not take out or effect insurance on the mortgagor’s interest in the buildmgs in said cross-bill mentioned.” No further averments are contained in the plea and no denials of any matters set forth in the cross-bill are contained in the plea except in so' far as the affirmative averment above quoted may be operative as a denial.</p>

On final hearing on bill, &c., for specific performance. Complainant seeks to compel defendant to convey to him a certain parcel of land at Ocean City, New Jersejq pursuant to the terms of a written agreement made by the parties. Defendant resists the relief sought by complainant because of certain misrepresentations which she alleges were made to her by complainant prior to the execution of the agreement.

<p>On bill for injunction. Hearing on return of order to show cause for preliminary injunction.</p> <p>Tbe bill is filed to restrain defendant from making rise of a certain alley for purposes of travel to and from defendant’s land.</p> <p>The alley which complainant seeks to protect from use by d¿fendant came into existence in the following manner: In the year 1898 one Kelly owned a lot of land at the southwest corner of Atlantic and New York avenues, Atlantic City. The lot was rectangular in form and extended one hundred feet along Atlantic avenue and one hundred and fifty feet along New York avenue. In the year named, Kelly sold to complainant’s devisor the rear, or southerly, forty feet of the lot. The deed of conveyance from Kelly to complainant’s devisor granted not only the tract above referred to as extending forty feet in frontage on New York avenue, but also the right to use as an alley a strip of land adjacent thereto on the northerly side thereof, said strip of land being ten feet in front, or width, on New York avenue and extending in depth of that uniform width the same distance as the land conveyed — one hundred feet. The language of the deed with reference to the alley is as follows:</p> <p>“Together with the free and common use. right, liberty and privilege of an alley ten feet in width, intended to be laid out and opened by the said grantor, parallel with and one hundred feet southward from the south line of Atlantic avenue, and extending westward from said New York avenue one hundred feet in depth, in common with the owners, tenants, and occupiers of the lots of ground of the said grantor and the said grantee, or their assigns, bounding thereon as and for a passageway and water course, at all times hereafter, forever, subject, however, to the payment of a proportionate part of the expense of keeping the said alley in good order and repair at all times hereafter, forever.”</p> <p>At the date of this conveyance Kelly owned no land in the vicinity except the lot already referred to, the rear portion of which he conveyed to complainant’s devisor in the manner already stated. After this conveyance was made, Kelly and complainant’s devisor caused the alley to be paved at their joint expense. In the year 1901 Kelly purchased from one Folwell a lot of land adjacent to and westerly of the lot originally owned by him. The lot so purchased extended fifty feet in front on Atlantic avenue and one hundred and fifty feet in depth. It will thus be observed that the rear part of the lot purchased by Kelly from Folwell was adjacent to tbe land then owned by complainant’s devisor, and also adjacent to what is called the “blind end” of the alley. In the year 1908 Kelly sold to the Atlantic Safe Deposit and Trust Company — not parties to this suit- — -the remaining portion of the original corner lot, that is, one hundred feet on Atlantic avenue and one hundred feet on New York avenue. In that deed of conveyance, Kelly’s rights in the alley were conveyed in the following language:</p> <p>“Together with all the right, title and interest of the said party of the first part hereto (Kelly) in the ten l'eet wide alley in the rear of said premises, to the depth of one hundred feet westwardly from New York avenue, reserving thereout, however, unto the grantor, his heirs and assigns, the use, right, privilege and liberty of all of said ten feet wide alley, as and for a passageway and water course, and for ingress and egress thereover, at all times hereafter, forever, for the benefit of the land of said grantor adjoining the land herein described on the west side thereof.”</p> <p>On January 95th, 1911, Kelly conveyed to defendant the lot which he had theretofore purchased from Folwell, and in the deed of conveyance therefor granted to defendant the use of the alley by the following language:</p> <p>“Together with the use, right, privilege and liberty in common with others, of, in and to that certain ten feet wide alley or passageway known as Sherman Place, leading eastwardly from said lands and premises to Now York avenue the northerly line of which runs parallel with and one hundred feet southerly from the southerly line of Atlantic avenue, as and for a passageway and water course, and to have ingress and egress thereover, hereafter forever.”</p> <p>About seven years ago, and when Kelly was the owner of the lot now owned by defendant, buildings were by him rebuilt on the front part of the lot. These buildings face on Atlantic avenue and exclude all means of access to the lot from Atlantic avenue, and since their erection the alley has been uniformly used by the occupants of these buildings for egress and ingress without objection from anyone. Defendant has recently erected a large warehouse on the rear of his lot. This warehouse has been constructed with special reference to the use of the alley for the receipt of goods; its only entrance is adjacent to the westerly end of the alley, and goods' cannot be received in it except from the end of the alley. This warehouse now contains about twenty thousand dollars worth of goods which have been received through the alley. The evidence before the court at this time sufficiently discloses that complainant necessarily knew that the warehouse of defendant was being constructed for the purpose of receiving goods through the alley in question, and made no protest against such use until the present bill was filed. It also appears that complainant was employed to install the plumbing in the warehouse and that he performed the work.</p> <p>The foregoing facts have been made to appear at the return of an order to show cause for a preliminary injunction to restrain defendant from using the alley pending final hearing of the suit.</p>

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

<p>1. A preliminary injunction will not be granted restraining the defendants from voting at the annual stockholders’ meeting for the election of directors proxies upon fifty-two thousand four hundred and thirty out of seven hundred and twenty-nine thousand nine hundred and eighty outstanding shares of stock, upon the ground that there had been a severance of the right to vote from the vested title to and ownership of the stock, where it appeared that if the questioned shares be deducted from the four hundred and seventy-six thousand five hundred shares for which the defendants had proxies, there would still be left to them proxies for four hundred and twenty-four thousand and seventy shares against which nothing was alleged, or nearly sixty thousand shares more than a majority.</p> <p>2. The nature and characteristics of a proxy explained.</p> <p>3. A master of this court will not be appointed to supervise such election on the ground that inspectors of election had been appointed by the present board of directors and were mere employes of the company, -subject to the direction of its officers and without independent judgment in deciding upon the admission or rejection of a challenged vote.</p> <p>4. The powers and duties of such inspectors of election defined.</p>

On final hearing on bill, answer, replication and proofs. On July 22d, 1908, the Shrewsbury Heights Improvement Company, a New Jersey corporation, was the owner of a farm in Monmouth county, which was known as the Joseph C. Patterson farm. The beneficial ownership of all the capital stock of the company was vested in the defendant Anne Norris.

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

<p>1. If a rape he committed by a husband his wife may have a divorce from him on the ground of adultery, for in the law of divorce adultery is the voluntary sexual intercourse of a married person with one not the hnsband or wife of that person; therefore, rape is adultery on the part of the man. although not so on the part of the woman who is carnally known forcibly and against her will.</p> <p>2. To an indictment against him for rape the accused pleaded non vult. The rape laid in the indictment is the adultery charged in the case at bar, and the plea of non vult was admitted in this cause to affect the credibility of the defendant as a witness, which it does in a twofold aspect — first, it affects his credibility generally upon the principle that a man who would commit a crime would tell an untruth; and second, that as the particular crime to wdiich he pleaded involves the identical facts which are the basis of this collateral proceeding, more and greater discredit attaches to the witness, who now says he did not commit the act, when, on his arraignment on indictment as for a crime in committing the same offence he admitted this guilt (for such was the effect of his plea in the criminal court), instead of protesting his innocence as here.</p> <p>3. The question of the extent of the discredit attaching to a witness is one for the court whose province it is to consider and determine the issue; it is a question of fact, not of law.</p> <p>4. Quiere. Can the defendant’s plea of non vult to the indictment be received substantively on the issue in this case, as an admission of the truth of the charge against him, irrespective of the discredit attaching to him as a witness.</p> <p>5. If a party accused of adultery prove that the accuser, having probable knowledge of the offence committed, afterwards has voluntary sexual intercourse with the accused, the accuser shall not obtain a divorce for the adultery thus condoned.</p> <p>6. The rule that pardon may be implied from sexual intercourse is not enforced so rigorously against a wife as it is against a husband, and the reason is that the wife, to a considerable extent, is subject to and dependent on her husband, and his guilt is of less consequence to her than her guilt is to him; and if the wife voluntarily has sexual intercourse with her husband while entertaining a belief of his guilt, which belief is the product of suspicion only and not of evidence, it is not a condonation of the offence.</p> <p>7. Where the wife seeks a divorce against her husband'on the ground of adultery, if she, having knowledge of the adultery, or reason to believe it, continues voluntarily to have sexual intercourse with him, it constitutes a condonation of the offence, and she is not entitled to a divorce.</p> <p>8. The petitioner in this cause having voluntarily had sexual intercourse with the defendant while he was incarcerated in the Flemington jail, both before and after he, to her knowledge, had pleaded non vult to the crime of rape, which sexual act constitutes the adultery charged in this case, and after the mother of the girl who was raped had told the petitioner all about the affair (and the mother had heard all from her daughter), and who, petitioner, was thus in possession of all the evidence of her husband’s offence which she afterwards used to establish his guilt in this court, she must be held to have had reasonable knowledge of the adultery committed by the defendant, and to have believed him guilty, and, therefore, to have condoned his offence.</p>

<p>1. Decrees of the orphans court, in the exorcise of its statutory- jurisdiction over matters of accounting and distribution, are as conclusive as are decrees of a court of chancery.</p> <p>2. Where a decree was rendered settling the accounts of executors and trustees under a will, at a time when the interests of certain contingent remaindermen had not arisen because of the non-occurrence of the event on which their interests were to vest, such remaindermen were held to have been represented by the executors who were likewise their trustees, and hence were concluded by the decree.</p>

<p>On appeal from an order of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported in 77 N. J. Eq. (7 Buch.) 76.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported in 76 N. J. Eq. (6 Buch.) 426.</p>

The Camden and Trenton Railway Company being in the hands of a receiver appointed under the statutes of this state, the appellant, the General Electric Company, presented to the receiver, within the time limited by the order of the court of chancery, a claim for $4=17.85, covering certain electrical apparatus and supplies delivered to the railway company within six months prior to the receiver’s appointment, which items of supplies in the said account were necessary to the…

<p>1. A husband, a laborer, and his wife, a servant, accumulated property after their marriage out of profits of a saloon business conducted by the wife under a license to the husband, from boarders, and the earnings of minor children; the savings, with the knowledge of the husband, were invested in real estate, 'the title to which was taken in the name of the wife. — Held, that the evidence fell short of the standard of certain, definite, reliable and convincing proof necessary to rebut the presumption of a gift to the wife.</p> <p>2. Where husband and wife accumulate property by their joint efforts, and invest it in the'name of one of them, there is no presumption arising from their station in life that they intended it to be a common hoard, in which both should be equally interested.</p>

<p>1. To a bill filed to foreclose a vendor’s lien for unpaid purchase-money, a bondholder, under a mortgage given by the purchaser, answered that the complainants had agreed to waive in his favor any and all rights they had to any part of the selling price of the lands so that the defendant would have a first and prior lien. — Reid, that under the issue thus made, he must prove the waiver¡ and upon his failure to do so, the complainants were entitled to priority of payment.</p> <p>2. The expression “vendor’s lien” is an agreement by which the vendors assented to the making of a mortgage by the purchaser but provided that they should have a vendor’s lien for unpaid purchase-money, sufficiently indicates a lien prior to the mortgage.</p>

<p>1. Upon a conditional sale where the goods are delivered to the buyer and the title is retained by the seller as security for unpaid purchase-money, the risk of loss is the'seller’s.</p> <p>2. A precedent debt is a good consideration for a chattel mortgage.</p> <p>3. The affidavit required to be annexed to a chattel mortgage must set forth the consideration completely, and if it fails so to do the chattel mortgage is absolutely void as against creditors.</p>

<p>1. While a judgment obtained on a claim against a contractor under section 4 of the Mechanics’ Lien law (P. L. 1898 p. 589), as amended in 1899 (P. L. 1899 p. 81/8), is conclusive as to the correctness of the claim upon the parties to the action and their privies, it is not conclusive in that respect upon the owner of the building nor upon other persons claiming the contractors moneys by reason of assignments thereof made before the suit resulting in such judgment was begun, who had no notice of the suit, and who have not by their actual intervention brought themselves within its binding effect.</p> <p>2. A judgment obtained on a claim against a contractor under section 4 of the Mechanics’ Lien law (P. L. 1808 p. 589) as amended in 1899 (P. L. 1899 p. 848), may be given in evidence, in an interpleader suit brought to determine the respective rights of rival claimants of moneys earned by the contractor, to show, prima facie, the amount due; but it will not prevent a person claiming the contractor’s moneys by virtue of an assignment thereof made before the suit resulting in such judgment was begun, who had no notice of the suit, and who had not intervened therein, from proving that the claim is in fact unfounded.</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. 237.</p>

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

<p>On appeal from a decree in chancery advised by Vice-Chancellor Garrison.</p>

<p>On appeal of George D. Hendrickson, receiver, from a decree of the court of chancery advised by Vice-Chancellor Howell.</p>

<p>On appeal from a decree of the prerogative court made by the ordinary.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 77 N. J. Eq. (7 Buch.) 12.</p>

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

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 74 N. J. Eq. (4 Buch.) 546.</p>

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

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

<p>On appeal from a decree of tbe conrt of chancery advised by Vice-Chancellor Stevenson, whose opinion is reported ante p. 865.</p>

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

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 76 N. J. Eq. (6 Buch.) 55.</p>

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

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 76 N. J. Eq. (6 Buch.) 29.</p>