Volume 79 — New Jersey Equity Reports

<p>On petition of Jacob C. Price for surplus money.</p>

On petition oí Alice C. Price to have surplus money held to answer writ of sequestration and to secure her inchoate right of dower in the mortgaged premises.

On petition of Theodore Francis Green for the revocation of an order made by the chancellor herein bearing date October 25th, 1910, whereby the appeal of George H. Newhall, receiver of the Nautical Preparatory School, from the rejection of his claim by the receiver was dismissed for want of prosecution.

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

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

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

<p>1. A building and loan association agreed to lend $6,000 to one of its stockholders and took from the stockholder and her husband, as security, their bond conditioned to pay one dollar monthly on each of the thirty shares of stock owned by her, and to pay interest monthly, until the shares should attain the par value of $200 each; and also took a mortgage, the purpose of which, as expressed in the condition, was to secure the payment of the sum of money mentioned in the condition of the bond “at the time and times and in the manner mentioned in the said condition.”—Held, in a suit to foreclose such mortgage, that the defendant could not set up a partial non-performance by the association of its agreement to lend the full sum of $6,000 as a bar to the recovery of the money actually advanced, and that if the association could recover at all, it would necessarily be on the footing of its contract which was not to pay $6,000 at the time the mortgage was executed, but, in the language of the association’s minutes, “gradually, according to the progress of the work.”</p> <p>2. It does not follow that because of a default of the association in making particular payments the defendant can rescind in loto, and refuse to repay anything.</p> <p>3. The defence that the association having refused to pay over a part of what it had agreed to lend, should have applied the money retained to the payment of the unpaid dues and interest, is not available to the mortgagors, inasmuch as this duty, if it existed, must have sprung out of a custom of the association known to its customers or out of an express contract, and the defendants have not proved either.</p> <p>4. The claim that the association actually applied the money retained to the payment of dues and interest, is not sustained by proof that the association gave the stockholder a pass-book in which the secretary entered certain credits; it appearing that, by the by-laws, (1) the treasurer is the person authorized to receipt for dues and not the secretary, and (2) that the monthly payments were to be made at monthly meetings, and the entries actually made were not made at such meetings, and that as the contract was to advance money for the purpose of completing the building, it was incumbent on the defendants to show that the same was-changed by the mutual agreement of the parties.</p>

<p>1. Where deceased executed deeds of gift to each of his children, deposited them with his agent, to be delivered only after his death, because he might need some of the property for his own use, and thereafter directed one of them to be delivered immediately, it cannot be avoided on the ground of mistake, though the undelivered deeds were invalid because of their testamentary character; it being- impossible to say that it was his intention, persisted in till the end, that no part of his original scheme should be carried out, unless it was all carried out.</p> <p>2. A gift of his homestead by one enfeebled by age and disease, without competent and independent advice, the deed therefor containing no power of revocation, and no provision for support, to a daughter in a position to exercise a dominating authority, is of practically all his property, and so invalid; what remained being- unimproved and at most barely enough to repay his son, who had made and was making advances for his support.</p>

<p>B. conveyed to G., by separate deeds at different times, two adjoining lots, each deed providing that the lot covered by it was conveyed subject to the condition that no building should be erected thereon nearer to the street line than fifteen feet. This restriction is not shown to have been part of any general scheme; and B. is not shown to have had any remaining lands. G., while owner of both lots, gave a mortgage on the lot first conveyed, which did not reimpose the restriction; and after the giving of the mortgage, but before its foreclosure, -under which defendant acquired title to the mortgaged lot, complainant became the owner of the other lot under deed from G.—Held, that B., by conveyance of the second lot, having no lands remaining, having lost the right to enforce in equity the restriction on the first lot, G. by reason of this and because of the uniting in her of the ownership of the two lots also lost it; so that, she not having revived such right by reimposing such restriction in her mortgage, complainant, who had only such rights as she had, could not enforce it.</p>

<p>1. A decree restraining a city, its officers, agents and employes from continuing to pollute the waters of a river from and after a given date, reserving leave to apply to the court for further time, if, notwithstanding the exercise of due diligence, the mayor and aldermen of the city should be unable to cease polluting the river by said date, unappealed from, is binding, as the law of the case, and if the city desires more time, it must, according to the terms of the decree, show that it has exercised due diligence.</p> <p>2. On a petition by the city praying that the injunction restraining the city after a given date from polluting a river should be stayed, and not be issued until a future named date, averring that it had exercised due diligence and stating the particulars thereof.—Held, that the acts relied on did not constitute due diligence.</p> <p>3. As the city appeared to have misapprehended the scope of the decree the case should be set down for further hearing, at which the city officials would have an opportunity of showing what it and they have done towards a solution of the problem, and what it is proposed to do. The court will then be in a position to say whether any or what further time shall be granted.</p>

<p>Where, after corporate stock is bequeathed to one for life, a stock dividend is declared, the new stock representing more than the earnings after the death of testator, the life tenant is entitled only to a charge thereon for the proportion thereof representing such earnings.</p>

<p>1. Where a corporation which had accumulated a surplus several times greater than its capital, in addition to its usual dividend, declared a two hundred per cent, dividend, at the same time giving the stockholders power to subscribe at par for a new issue of stock of the same amount, the dividend was a cash dividend, and not a stock dividend.</p> <p>2. While ordinary cash dividends, where stock is bequeathed to one for life, remainder to another, go to the life tenant, the extraordinary dividends are apportioned between him and the remainderman; and hence, where a corporation which had accumulated a surplus several times greater than its capital, in addition to its regular dividend, declared a two hundred per cent, dividend, at the same time giving the stockholders the power to subscribe for a new issue of stock of the same amount, the dividend was extraordinary, and should be apportioned in the ratio that the surplus at testator’s death bears to the surplus accumulated thereafter up to the time it was declared.</p> <p>3. Where trustees under a will held the legal title to stock in a corporation which paid very large dividends, and had accumulated a very large surplus, the trustees were, upon the declaration of an extraordinary cash dividend, justified in investing the dividends in a new issue of stock, which the corporation at the same time offered its stockholders at par.</p> <p>4. The right to subscribe for new shares which command a premium is considered a part of the principal, where corporate stock has been bequeathed to one for life yath remainder to another.</p> <p>5. Where trustees .under a will were authorized to continue any investments or securities, and part of the estate consisted of stock in a corporation which, to treble its capital stock, in addition to the regular dividend, declared a two hundred per cent, cash dividend, and gave all shareholders the right to purchase two new shares for each share they then owned, the trustees having purchased such shares were entitled to hold them; for by investing a cash dividend in stock they merely preserved their proportionate interest in the property, and did nothing more than continue their investments.</p> <p>6. Where corporate stock was bequeathed to one for life, remainder to another, and the corporation made a stock dividend, the stock so issued was held to be an extraordinary dividend, to be apportioned between the life tenant and the remainderman.</p> <p>7. In apportioning a stock dividend between the life tenant and the remainderman, the apportionment should be made on the basis of the company's accounts.</p> <p>8. Where corporate stock, which was bequeathed to one for life and remainder to another, secured the holder the right to purchase on favorable terms shares of another corporation, that right is capital belonging to the remainderman.</p>

<p>1. Testatrix, after giving her property to her daughter, not for 'life nor indeterminately, but to her heirs and assigns forever, adds in another clause an authority to sell or otherwise dispose of the whole in any part or portion, and provided as follows: that if the daughter “should die without children, leaving the estate hereby bequeathed to her, or any part or portion of the same, then it is my will that so much thereof or such part or portion of said estate as she may leave at her decease, shall go to” (the defendant).—Held, that testatrix intended to give to her daughter an estate in fee-simple with absolute and unlimited power of disposition.</p> <p>2. It was not the whole estate that was to go over, but only such part as the daughter might see fit to leave.</p>

<p>1. Upon complainant’s application to direct a new trial on an issue at law framed and tried in the court designated, with the result that the validity of the complainant’s claim was negatived by the verdict of the jury in proceedings had under the statute entitled “An act to compel the determination of claims to real estate in certain cases, and to quiet the title to the same” (P. L. 1870 p. 20; S (den. Stat. p. 8486), -where such application was rested upon the ground that the verdict was against the evidence, and also because of alleged trial errors committed by the law court—field, that the verdict must be set aside and a new trial had, after examination and consideration of such alleged trial errors as well as of the evidence reported to this court by the law court.</p> <p>2. The issue at law must be as broad as the application, and put to the test of the suit at law the validity of the entire claim of the defendant, and not a part thereof only.</p>

<p>The rule declared by the court of errors and appeals in Lutjen y. Lutjen, 6Jf N. J. Bq. (19 Dick.) 718, as to laches, followed, it being apparent that the complainant’s delay of over five years, before filing his bill, may have caused a loss of evidence to the injury of the defendant.</p>

<p>1. In construing a will the court may entertain extrinsic evidence o£ the circumstances, situation and surroundings of the testator at the time the will was executed, but not statements made by him touching his meaning and purpose.</p> <p>2. Where the testator’s expressed desire is that his sister shall be' looked after by her brother, and that his brother should see that she has a home and is properly provided for and has a decent burial, the will casts upon the brother the duty to see that the sister has these things, it being clear that the residuary estate is devised to the brother in such manner that the duties thus imposed on him are made a charge upon the proceeds received by him.</p> <p>3. The duty thus imposed upon the brother is discharged in accordance with the testator’s wish so long as the sister has a home and is properly provided for and is given a decent burial, but the brother is not directed by the testator to provide these things at his own expense, irrespective of the sister’s ability to provide them from her own exertions and estate.</p> <p>4. It appearing from the evidence that the sister is not at this time enjoying a suitable home, or surrounded by reasonable comforts, the brother is not performing the duty imposed upon him by the will until or unless he sees that she is surrounded by conditions suitable to her age and infirmities.</p> <p>5. Such duty can be performed by the brother either by supplying to her such additional money as may be necessary to enable her to live with comfort and safety, or by supplying her- with adequate security against future want and thus enable her to spend her principal with safety to herself.</p> <p>6. As the will creates such a charge against the brother in favor of the sister, it is within the power of this court to require security in behalf of the sister for the performance of the duty thus imposed.</p>

<p>1. In an action to quiet title in which the verdict in favor of the defendant (plaintiff in the issue at law) depended upon the sufficiency of the evidence to overcome the presumption of validity accompanying a decedent’s third marriage—Held, that a verdict for the plaintiff would be set aside as against the weight of the evidence.</p> <p>2. A presumption of divorce from a prior marriage arises from a subsequent marriage.</p>

<p>1. A second mortgage provided that parts of the premises might be released from the mortgage upon payment to the mortgagee of $50 for every lot so released, and all sums paid for such releases should be applied to the mortgage debt and to another prior mortgage, and further recited that, whereas the prior mortgagee had agreed to release any lots from its mortgage for $40 for each lot released, it was thereby agreed that upon payment of $40 for each lot released from the first mortgage the second mortgagee would release such lots for the sum of $10 a lot. That sum multiplied by the total number of lots covered by the mortgage would amount to less than the second mortgage debt, but the release of less than one-half of the lots at $40 a lot would discharge the first mortgage. The tract had been laid out into streets and lots, and the mortgage was executed to enable the mortgagor to sell the lots for building purposes.—Held, that the agreement for releases contemplated the execution of releases by the second mortgagee for $10 a lot whenever releases for the same lots were executed by the first mortgagee at $40 a lot, and that the second mortgagee would be entitled to $50 for each lot released after the first mortgage was discharged, though the second mortgagee was not required to execute releases unless similar releases were executed at the same time by the first mortgagee.</p> <p>2. The covenant for releases was not personal to the mortgagor, but ran with the land for the benefit of a grantee of the mortgagor, even though it was not expressly so stated.</p> <p>3. Where a second mortgage contained a covenant to release the mortgaged lots from the lien for the benefit of the mortgagor and his grantees to enable him to sell the mortgaged property for building lots, the right of his grantees to releases for lots sold in good faith before default continues after default and even after foreclosure proceedings are begun; a purchaser from the mortgagor prior to default being entitled to redeem.</p> <p>4. First and second mortgagees could, as against third mortgage bondholders, extend the time of payment upon promises that payments would be made from time to time from the proceeds of the sale of third mortgage bonds, as there was no express or implied engagement on the part of the prior mortgagees that the third mortgagee should share in the lien of the prior mortgages in the event of the sale of third mortgage bonds in amounts less than sufficient to discharge the prior mortgages.</p> <p>5. As a rule bonds and the mortgage securing them must be considered together, and holders of bonds referring to the mortgage are charged with notice of its contents, and where third mortgage bonds referred to the mortgage, which, in turn, referred to prior mortgages, and also stated that a part of the proceeds of such bonds should be used to pay for releases of the liens of the prior mortgages from lots covered by them, which were to be conveyed to the bondholders, and the prior mortgagees had no knowledge that the third mortgage bonds were designated “first mortgage bonds” or of any misrepresentations by the mortgagor to the third mortgage bondholders as to the status of the bonds, the latter were not entitled to any relief as against the first and second mortgagees because of any misrepresentations by the mortgagor..</p>

<p>1. Where a trustee under a will procured no release from a beueiiciary, and there was no direct or presumptive evidence to justify the conclusion that the acts of the trustee, though in the interest of the beneficiary, were performed by him and accepted by the beneficiar}' in discharge of the trust, the trust must be deemed to have continued, since against an express and subsisting trust the statute of limitations affords no bar.</p> <p>2. The termination or satisfaction of a trust may be presumed from lapse of time or gross laches in its enforcement amounting to acquiescence.</p> <p>3. Where a beneficiary under a will delayed in demanding from the trustee the payment to her of her share of the estate because of her belief that a larger amount was to be received by her under the will of the trustee, and the trustee’s statements to her son fully justified that belief, such delay will not deprive the beneficiary of relief by suit.</p> <p>4. Where a beneficiary entitled to a share of a trust estate neglected for over twenty-eight years to bring suit to enforce payment by the trustee, interest, which if recoverable would be as damages, will not be allowed.</p>

<p>On final hearing on bill, &c.</p>

<p>2 Gen. Stat. 1895 p. 1J$9 § 21, provides that any deed by an administrator with the will annexed, for land sold pursuant to a power or direction in the will vested in the executor, shall be as valid as if it had been executed by the executor named in the will; and such administrator shall have the same powers as to the sale of testator’s land as were vested in the executor. Orphans Court act (P. L. 1898 p. 725 § 29) provides that if any non-resident die possessed of lands within the state, the surrogate of the county shall, upon proof of death, issue letters of administration; and if any executor or administrator of a non-resident neglects for sixty days to apply for letters testamentary, or of administration, the surrogate may issue letters of administration to any person he selects, either with the will annexed or otherwise.-—-Held, that, while a testamentary power of sale given an executor does not cease upon the death or removal of the executor, as at common law, but now passes to an administrator with the will annexed, a power of sale of realty situated in New Jersey, given to foreign executors named in a non-resident’s will, cannot be exercised by an ancillary administrator with the will annexed, appointed by the orphans court of the county in which the realty is situate, where the executors are acting- as such in the jurisdiction of testator’s domicile.</p>

On bill, &e. The will of Sarah H. Woolston, dated September 29th, 1879, provided as follows: “Know all men by these presents, that I, Sarah H. Woolston, of the city of Trenton, in the county of Mercer and State of 'New Jersey, missionary to the Chinese at Foochow, China, considering the uncertainty of this mortal life, and being of sound mind and memory, do make and publish this my last will and testament in manner and form following: “First.

On final hearing on bills, answers, replications and proofs. The above cases were heard together and are to be decided upon the same proofs. The first bill is filed for the construction of a will and directions to trustees; the second is a foreclosure suit in which it is necessary that the same will shall be construed in order to determine the rights of the parties.

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

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

<p>1. If a husband be guilty of conduct amounting to a matrimonial offence that would constitute ground for divorce or alimony, his wife is justified .in leaving him, and the desertion thereby becomes his.</p> <p>2. If a wife leaves her husband because of his adultery, even if it be committed elsewhere than at their dwelling, the separation thus created is constructive desertion by him for the purpose of enabling her to compel him to support her; that is, it amounts to tho abandonment or separation (whatever the difference) by him from her without justifiable cause, within the meaning of section 20 of the Divorce act.</p> <p>3. In divorce cases the wife is a privileged suitor, and, as a general rule, is entitled to alimony and counsel fee pendente lite whether she be complainant or defendant. If, however, she has sufficient property of her own, no allowance will be made.</p> <p>4. There is some distinction, however, accordingly as the wife complains or is complained against. When she is complainant and no sufficient case is made by her bill and affidavits, alimony and counsel fee pendente lite will be denied; but, when she is defendant, she is entitled to preliminary allowances, if she denies under oath the matrimonial offence charged against her, and is without means for her support and for defending her husband’s suit. Even when she is defendant, it may be that she is disentitled if her denial is not made in good faith; but, as to this, quaere.</p> <p>5. The rule is different in case for alimony disassociated from divorce a vinculo matrimonii. On motion for preliminary relief in maintenance suits, the court looks into the merits of the application as disclosed by the pleadings and affidavits, and is thereby guided in the exercise of its discretion. And, when the tona fides of a wife’s application is questionable, such relief will be denied.</p> <p>G. As well in eases for divorce a mensa et thora as in those for alimony pure and simple, where the wife has in fact left the husband on account of his alleged derelict conduct, her application for alimony and counsel fee pendente lite will be scrutinized and decided upon the weight of the testimony then presented, and the rules of law applicable thereto, just as other litigated motions are decided, even though she be a favored suitor.</p> <p>7. Because a husband denies under oath the charges against him, it does not necessarily follow that alimony pendente lite will be refused. Nevertheless, where his sworn denial is abundantly corroborated, and the case made by the pleadings and affidavits on the preliminary motion is with him by the application of the usual rule concerning the burden of proof, the defendant should not be visited with any interlocutory order for allowances, where it appears that the wife has left him either because of his alleged extreme cruelty or adultery; because a wife who leaves her husband does so at her peril, and assumes the burden of making the desertion constructively his by establishing his guilt by clear and satisfactory proof, and this is so on application for temporary alimony and counsel fee as well as on final hearing.</p>

<p>1. When a preliminary writ of injunction issues a subpaina ad respondendum must be taken out with it and returned into court within the time prescribed by rule for the return of service of the injunction, or, in default, the injunction will be dissolved, on defendant’s motion.</p> <p>2. To make such motion, the defendant, not being in court by plea, answer or demurrer, would have to appear formally for the purpose. And if he desires to appear specially for that purpose only and not have his appearance operate to clothe the court with jurisdiction over him generally in the suit, it seems he must obtain leave of the court to enter such an appearance.</p> <p>3. There is a material distinction between a preliminary writ of injunction and an ad interim restraining order. The injunction runs—to use its language—until the defendant “shall have fully answered the bill of complaint and our said court shall make other order to the contrary.” An ad interim restraining order always commands the defendant to show cause on a certain day why an injunction should not issue, and he is thereby brought into court for the purpose of that motion only, and thus afforded an opportunity to litigate with the complainant as to the propriety of the issuance of an interlocutory injunction, without the filing of an answer and without appearing generally in the cause.</p> <p>4. Mandatory injunctions are rarely granted before final hearing, and are, as a general rule, strictly confined to cases where the remedy at law is plainly inadequate.</p> <p>0. To justify the issuing of an interlocutory injunction, the case made by the complainant must exhibit a right free from doubt or reasonable dispute; and the writ will not issue where the complainant's case is doubtful on the law or the facts. To doubt is to deny.</p>

<p>1. Though executors who are also trustees under a will are entitled to commissions on the corpus of the estate in each capacity, yet, where they settled their accounts as executors in eleven months after their assumption of the administration of the estate, amounting to $81,629.48, and of this amount $72,417.62 was the amount of the inventory and appraisement, of which they became possessed on proving the will and qualifying as executors and trustees, and the difference, $9,211.S6, came from the payment of installments on lands of the testator contracted to be sold, they having collected income amounting to $6,955.60, and showed disbursements of all of that sum, except .$285.66, among which disbursements were about $2,500 of income, divided between the life tenants, and $347.78 as commissions, being five per cent, on the income, it was improper to allow as executors’ commissions five per cent, on the principal; a proper allowance being one per cent, on the amount of the inventory, and two per cent, or two and a half per cent, on the principal by which the inventory was augmented.</p> <p>2. Where executors, who were also trustees, settled their accounts in eleven months and were allowed five per cent, commissions on the principal of the estate, which was excessive, a further allowance to the surviving trustee of another five per cent, on $15,798.39 of principal, which was not in the inventory or account of the executors, was improper.</p> <p>3. An allowance of commissions on the principal or income of a trust estate must be made directly by the orphans court to the trustee, and out of this the trustee is bound to compensate agents, attorneys, or others who have performed her duties; the court being unauthorized to make an allowance direct to such agents, attorneys, &c., for performing duties devolving on the trustee.</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. Bq. (7 Buck.) 512.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 78 N. J. Mg. (8 Buch.) 170.</p>

<p>Parents, who make a conveyance to a creditor of their sou under pressure of a threat to have the son criminally prosecuted, made in the honest belief that the son had subjected himself to such a prosecution, although the contrary was the fact, are entitled to have the conveyance set aside.</p>

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

On appeal of Thomas G-. Haight, receiver, from a decree of the court of chancery advised by Vice-Chancellor Walker. The bill in this case was filed to foreclose a mortgage given by the Frank Melville Amusement Company and by Frank Melville and wife to William S. Van Clief, the complainant, and Albin Harry Cortright as trustees.

J. Eq. (7 Buch.) 328. The appellants claim the amount due on a certificate in the following form: “,¶>.............. Held: managed and controlled by the trust company until all indebtedness of the National company upon the certificates was fully paid or discharged, but in no event later than Januaiy 1st, 1905 (that is, the date when bjr their terms they became clue) : this National company stock deposited by the former stockholders of the United company…

<p>1. The supplement of 1907 to the act respecting the court of chancery (P. L. WOf p. J/52) applies to appeals from decrees made prior to the passage of the act and requires that such appeals be made within six months from the passage of that act, or if not made within that time, then within one year from the date of the decree.</p> <p>2. An act changing the time for taking an appeal from a final decree in chancery from three years to one year, which is made applicable to decrees antedating the act, but allows six months after the act takes effect for appealing is a valid enactment.</p>

Ashby, who alleged that during January, 1902, he was the owner of certain real estate and personal property at Atlantic City, New Jersey; that during that month he became broken in health and a sufferer from nervous prostration and melancholia, and became mentally infirm and unable to grasp business situations, and wras thereafter for a long space of time mentally and physically incapacitated and totally unfit to look after his property and business; that in this situation…

J. Eg. (8 Buch.) 1J/S. The Washington Life Insurance Company, by a policy duly executed and. delivered, insured the life of Frederick A. Prince, to the extent of $10,000, payable on his death to his wife, Mary L. Prince, for her sole use, if living, and if not living, to her and her husband’s children or their guardian, if under age, for their use, or if no children living then to the executors or administrators of the said Frederick A. Prince.

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

J. Eg. (7 Buch.) 589. The bill in this case was filed by certain residents of Cedar Grove, in tiie county of Mercer, who alleged that they and their families were members of and contributors to the… Held: that it was a ease for the allowance of costs and counsel fees to both parties. From the decree of dismissal the complainants appealed, and that decree has been unanimously affirmed by this court.

On appeal of the mayor and aldermen of Jersey City from a decree confirming a master’s' report advised by Vice-Chancellor Stevens, who delivered the following opinion: I do not think that the decree as it stands should be so modified as to direct the payment of the $500,000 reserved.

On appeal of Jersey City Water Supply Company from a decree of the court of chancery advised by Vice-Chancellor Stevens confirming a master’s report, and an order supplemental thereto, advised by Vice-Chancellor Stevens, who delivered the following-opinion : L have carefully considered the petition presented by the water company asking leave to introduce evidence relative to the release of the Norris Canal Company to Jersey City, dated May 12th, 1909.

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported ante p. 96.</p>

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

<p>On appeal from a decree of tlie court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 76 N. J. Eq. (6 Buck.) 511.</p>

<p>On appeal from a decree of the prerogative court made by the ordinary, whose opinion is reported in 78 N. J. Hep (8 Buch.) ms.</p>

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

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Walker, whose opinion is reported ante p. 1J¡2.</p>

<p>On appeal from a decree of the court of chancery advised by Yiee-Chancellor Stevenson, whose opinion is reported in 77 N. J. Eg. (7 Bach.) 828.</p>

<p>On appeal from a decree of the court of chancery advised by Yice-Chaneellor Learning, whose opinion is reported ante p. 98.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported in 78 N. J. Eq. (8 Buch.) 410.</p>

<p>On appeal from the prerogative court.</p>

<p>On appeal of William S. Yoorhees, trustee, from an order of the prerogative court advised by Yice-Ordinary Walker, whose opinion is reported in 78 N. J. Fq. (8 Bucli.) 217.</p>

On petition and. amended petition of Carrie Smisson, individually, and as executrix of Lillian Smisson Sehaab, deceased, and Georgina Westendorf, fox payment to them of interest on funds in court.

<p>1. Where it appears on the face of a bill that complainant’s right of action is barred by limitations, a demurrer for that reason will lie.</p> <p>2. On general demurrer to a bill to foreclose a mortgage, the presumption of payment arising from lapse of twenty years, will be sustained, in the absence of allegations explaining or excusing the delay.</p> <p>3. The statute of limitations applies to a suit in equity to foreclose a mortgage, under the rule that the right to foreclose ceases when the legal right of entry is barred.</p> <p>4. Payment of interest on a mortgage by the mortgagor or his gram.ee within twenty years prior to the filing of a bill to foreclose will toll the statute of limitations.</p> <p>5. A bond, secured by mortgage, provided for payment to mortgagee of a specified sum one year from April 1st, 1861, and the legal interest thereon, which interest was to be paid to E. C. during the term of her natural life, in lieu of dower, but from her death the interest to be paid to mortgagee, his heirs and assigns. A bill to foreclose, filed in 1911, contained no allegation of payment of interest at any time to E. C. during her lifetime or to complainant since her death, nor was the date of her death, alleged.—Held, that, since the payment of the principal to the mortgagee was not postponed until the death of E. C., but the mortgagee was entitled to sue therefor on April 1st, 1862, the bill on its face, in the absence of any allegation showing payment, either of principal or interest, within twenty years, or any explanation or excuse for delay in bringing suit, showed that the suit was barred by limitations.</p>

<p>1. No decision should be made in an administration suit as to the share which certain persons not parties to the suit would take under a will.</p> <p>2. Assignments of equitable interests in a fund held by a trustee being subject to the equities of the trustee arising before notice of the assignment, a loan wrongfully made to a legatee by a testamentary trustee from the trust funds, without notice of a prior assignment by the legatee of his interest in the estate, could be retained by the trustee from the amount payable to the legatee or his assignees, irrespective of whether the amount advanced was a loan to the legatee or an advancement from the share due him from the estate.</p> <p>3. The loan of the funds of the estate by a testamentary trustee to a legatee upon his personal note when his interest in the estate was contingent was at the trustee’s personal risk, being a wrongful use of the trust funds.</p> <p>4. An assignee from a cestui que trust who is a debtor to the trust estate must discharge the debt in order to claim a beneficial interest in the fund assigned.</p> <p>5. An executor and testamentary trustee who wrongfully loaned or advanced money to a legatee who had only a contingent future interest in the trust estate on his personal note will not be permitted to estop himself from afterwards retaining such amount from the amount due the legatee by any statements to the legatee as to the number of assignments then held by the trustee of the legatee’s interest, without mentioning the amount advanced by the trustee, in reliance upon which a creditor took an assignment of a part of the legatee’s interest; any remedy which the creditor had being against the trustee personally.</p> <p>6. Notice by a prior assignee of an interest in a trust estate to the trustee is essential as against a subsequent assignee for value in good faith and without notice; the prior assignee’s failure to give notice being negligence, which permits the assignor, through his apparent, ownership of the trust fund, to-defraud subsequent purchasers.</p> <p>7. Legal interests in property are assignable by rules fixed either at common or statute law.</p> <p>8. In absence of statute, the maxim, “The first in order of time is the strongest in Jaw,” applies to the successive assignments of equitable interests in land as well as to the transfer of legal interests.</p> <p>0. The equitable doctrine of notice is not applicable to the conveyance of equitable interests in lands.</p> <p>10. Legacies are purely equitable interests in their origin.</p> <p>11. A trustee who makes payments of a beneficiary’s interest from the trust fund either to the beneficiary or a subsequent assignee without notice of a prior assignment is protected as against a prior assignee.</p> <p>12. In cases where a subsequent assignee merely stands in the shoes of his assignor, subject to his equities, as in ease of an assignee under the insolvent laws, &e„ a prior assignment is effective, without notice, against a claim of a subsequent assignee.</p> <p>13. An assignment of a debt is valid by a delivery of the evidence of the debt without any writing, and any security would follow the debt in equity.</p>

<p>Heard on petition, answer and proofs.</p>

<p>Heard oil bill and answers.</p>

<p>1. Where a corporation manufacturing wire glass is the successor of one which controlled process patents for such product, the words “wire glass” are merely descriptive, and such corporation cannot restrain their use by another company manufacturing a similar glass, on the ground that their use to designate the product of the complainant while it had the exclusive right of manufacture has so identified them with its product as to give them a secondai*y meaning, and to give it a property right therein, where there is no showing that after competition was established by the expiration of the patents the name was generally used to designate complainant’s product in distinction to the product of other manufacturers.</p> <p>2. A corporation manufacturing wire glass has no exclusive right to use therein wire with a particular mesh, where the idea as to the construction of the glass and the use of that form of mesh is not original with it or its predecessors, and it has no patent thereon, as to give it that right would have the effect of destroying competition in the manufacture of unpatented articles.</p> <p>3. In a suit to enjoin the doing of acts alleged to ihave been designed to mislead the public and to induce the belief that wire glass produced by defendant was that of complainant, evidence held to show no attempt by defendant to mislead the public in making and marketing a'Similarly appearing- glass.</p>

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

<p>On bill (No. 2).</p>

On bill, &e. Motion on bill and affidavits and answering-affidavits for' a preliminary injunction, enjoining the breach by the defendant, a saloonkeeper, of a covenant to sell complainant’s beer exclusively for five years, the consideration of which was a loan secured by the chattel mortgage, &c., payable on demand.

<p>1. At common law, the heirs-at-law of a deceased mortgagor had a right of action to compel the administrator to discharge a mortgage made by the deceased on land.</p> <p>2. To a bill by heirs against an administrator to compel exoneration of their land from a mortgage made by the deceased, if a bill quia timet to establish the complainants’ right in case their land should be applied to the payment of the mortgage debt, for which the personal estate is primarily liable, the holders of the mortgage debt are not necessary parties.</p> <p>3. Under the express provision of P. L. 1398 p. 738 § 67 et seq., claims of heirs against an administrator for exoneration from a mortgage made by the deceased, not presented before the rule to bar creditors is made absolute, are barred.</p> <p>4. An heir entitled to exoneration by the personal estate from a mortgage, held by a third party, is a creditor within Orphans Court act (P. L. 1898 pp. 73S, 7JfO §§ 67, 70), which provides for publication by an administrator or executor of.notice to creditors to bring in their claims within nine months from the date of such order, and that, after the expiration of such time, the court may, by final decree, order that all creditors not presenting their claims within such time shall be barred.</p> <p>5. 2 Gen. Btat. 1895 p. 2112 § !ft, and its supplements, which makes the mortgaged property the primary fund out of which debt secured is to be paid, and permits the personal remedy on the bond only after the remedy against the land has been exhausted, abolishes the right of heirs to be exonerated from a mortgage debt, created and owed by the ancestor or testator out of the personal estate of such ancestor or testator.</p> <p>0. The right of the heir or devisee at common law to exoneration was not allowed, where he received land, encumbered by a mortgage which secured a debt which the ancestor or testator did not owe.</p> <p>7. Evidence, in an action by heirs of a married woman against her administrator to compel exoneration of their land from a bond and mortgage, made by the deceased to secure her own debt, held insufficient to show a presentment of the claim to the administrator within the time required by the Orphans Court act (P. L. 1898 p. 788 § 67 et seq.), and before the claim was barred by a final rule against creditors.</p> <p>S. The right of heirs who have presented no claim against an administrator for exoneration of their land from a mortgage made by deceased within the time required by law to present a claim, where the estate is settled and a surplus remains in the administrator’s hands as provided by P. L. 1898 p. V¡0 § 72, cannot be asserted where there- is no proof of a judicial settlement of the decedent’s estate by the administrator.</p> <p>9. Under 8 Gen. Btat. 1895 p. 2112 § h7, which provides that where a bond and mortgage have been given for the same debt the first proceeding shall be to foreclose the mortgage, and that if, at the sale of the mortgaged premises there is a deficiency, the mortgagee may proceed on the bond for such deficiency, a timely presentation by the heirs of a claim against an administrator for exoneration from the burden of a mortgage, made by the deceased, or by themselves as assignees of the mortgage or as parties subrogated thereto by payment of the mortgage debt, does not amount to a claim for the whole debt, but is merely a claim for the payment of any deficiency which may thereafter be declared due to the claimant after his primary security, the land, has been exhausted.</p>

Bill filed by stockholders of the Beattie Manufacturing Company, (1) to compel the distribution of accumulated profits by dividends to stockholders, and (2) to compel restoration to the company of moneys received by officers as salaries in excess of the value of the services rendered.

<p>1. Where mortgaged property of an intestate vested in her children, subject to the curtesy of her surviving husband, a third person who, at the husband's instance, bought the mortgage, filed a bill to foreclose, in which the husband and children were parties, and purchased the land at a sheriff’s sale, intending to get his own purchase-money back and to hold the balance so as to protect the interests of the husband and children, was charged with a trust for their benefit.</p> <p>2. Where a defendant in a bill for specific performance shows no hardship affecting him which would not be compensated by interest on the money due him, he is not in a position to raise ihe question of laches.</p> <p>3. Defendant in specific performance bought up a mortgage on land of an intestate, who left a husband and children surviving, agreeing with the husband to foreclose the mortgage and buy in the property, and to sell for the benefit of the parties interested in the property; defendant only asking that he be repaid his expenses.—Held, that he could not defend the bill for specific performance on the ground that he was thereby required to get in the outstanding interests of the children, who were also defendants in the suit.</p> <p>4. Whenever trust property is the subject-matter of litigation in a court of equity, all the parties in interest are proper, if not necessary, parties, and in such cases cestuis que irustent, unless they are so numerous as to make their inclusion burdensome, must be brought before the court.</p> <p>5. In a suit for- specific performance, brought against one who has bought and foreclosed an outstanding mortgage on land, buying in the land at the sheriff’s sale, and who holds the land for the benefit of the surviving husband and children of an intestate, and whose only interest therein is a right to the purchase-money paid for the sheriff’s deed, the surviving husband, who has a curtesy right in the lands, and the children, who have a fee-simple, subject to the curtesy right, are proper parties, under the rule that parties in a suit for specific performance must include all those who have interests in the land or rights in the purchase-money to be paid.</p> <p>6. The court of chancery has the inherent power, irrespective of statute, to change the character of property in which infants are interested for the benefit of such infants, and one who holds property for infants may not dispose of the same without receiving sanction of the court; and the fact that the legislature has provided a summary method of sale of infants’ land does not interfere with or deprive the court of such inherent power, whether such proceeding applies to infants who have titie or only an equitable interest.</p> <p>7. Defendant, in a suit for specific performance of his contract to sell and convey land, had bought in a mortgage on the land after the death of its owner, intestate, leaving a surviving husband and children, in whom the fee vested, subject to the husband's curtesy, and had foreclosed' the mortgage and purchased at the sheriff’s sale, and taken a sheriff’s deed of the land to hold in trust for the husband and children, except as to his claim for money paid by him for the deed, which was only one-ninth of the value of the land, and all parties interested in the land were made co-defendants.—-Held, that there was no lack of mutuality in the contract, though a sale by him would require a confirmation by the court, since at the time of the decree all the parties were before the court, and the contract was then mutually enforceable.</p>

Heard on bill, answers, replications and proofs in open court. This is a bill filed by the trustee in bankruptcy of Joseph Bamford, Jr., against the said Joseph Bamford, Jr., his brother, Walter Bamford, and the wife of the latter.

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

Heard on bill, answer, replication and proofs in open court.

<p>1. The chancery court has jurisdiction of suits to quiet title calling for the construction of a will, aud brought under If Comp. Stat. 1910 p. 5399 § 1, providing that any person in peaceable possession of land, claiming to own it, may sue to quiet the title.</p> <p>2. Where a testator devised his entire estate to his wife, if she survived him, with the proviso that she might dispose of it as she saw fit by her will, but, should she die without making a will, then it should be divided among his children, the wife took an estate which could be disposed of only by will: and upon her failure to dispose thereof the executory devise over to the children became operative.</p>

Tliis is a hearing upon a writ of habeas corpus issued by me under the statute.

<p>1. The testator’s residuary estate was given by his will to his trustees in trust to pay the income thereof to his four children as therein provided, and the disposition of the principal of each of the shares was controlled by the following language used in respect of one of them: “And upon the death of my said son Edward, the one-fourth part of my then residuary estate is to be divided between and paid to the persons, including my trustees, who, under the terms of this will shall then be entitled to receive, have or hold the principal of the other shares of my residuary estate, in the same proportions as they may then be respectively entitled to in such other shares and upon the same trusts and conditions respectively as to such shares as may still be held in trust under the terms of this will.”—Mold, that on the contingency named, the share of Edward P. (in this instance), or of others in each specific instance, was to be diT vided between and paid to whoever was then in a position to receive the principal under the terms of the will, and if no one was then in a position so to receive the principal, then it was to go to the trustees to be held for the persons who were then receiving the income of the respective four shares as then constituted, and to be held by the trustees upon the same trusts and conditions as the rest of the estate was then, held for those then entitled: to receive the same.</p> <p>2. The assignees under an assignment executed by a grandson of the testator dated January 18th, 1908, comprising the grandson’s contingent interest, and not the grandson’s general assignee in insolvency under an assignment afterwards made, are entitled to such interest.</p>

Final hearing on petition, &e., to annul marriage. The petition in this case is filed in behalf of William H. Hess, Jr., a minor, by his next friend, to annul his marriage to defendant on the ground that he was under the age of eighteen at the time of said marriage, and that he has not, since arriving at that age, confirmed the marriage.

<p>On petition, &c., to stay proceedings.</p> <p>The bill in this suit was filed by the receiver of the International Wireless Telegraph Company in behalf of its creditors to set aside a certain conveyance of property made by that company to the American De Forrest Wireless Telegraph Company, and also a conveyance of the same property by the last-named company to the United Wireless Telegraph Company, upon the ground that the conveyance first named was made without consideration and in fraud of the creditors of the first-named company, and that the conveyance secondly named was also made without consideration and with knowledge on the part of the United States Wireless Telegraph Company of the facts stated touching the first conveyance. The bill seeks to enforce against the property thus fraudulently transferred the rights of creditors of the corporation first named. That corporation, at the time of the filing of the bill, had become insolvent, and complainant had been appointed by this court as its receiver in insolvency. The United Wireless Telegraph Company has answered and the case has been set for final hearing in this court.</p> <p>Pending this suit the United Wireless Telegraph Company has been adjudged a bankrupt by the United States district court for the district of Maine, and trustees in bankruptcy have been appointed by that court; these trustees now specially appear in this court in this suit and petition this court to stay the pending suit and discontinue further proceedings therein, upon the ground that the trustees in bankruptcy are exclusively entitled to administer the assets of the bankrupt.</p>

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

On bill to foreclose mortgage. Hearing on bill and answer. The bill is filed to foreclose a mortgage made to complainants’ testator by defendants Lncretia P. Idler and Charles. A. Idler. By an averment of the bill, hereinafter quoted, it appears that subsequent to the date of the record of complainants’ mortgage the mortgaged premises were conveyed by the mortgagors to defendant Howard P. Idler.

<p>On bill, &c., to foreclose mortgage. On bill, &c., to set aside assignment of mortgage. (BQtli eases heard together.)</p>

On bilb &c., to qniet title. The hill is a statutory bill to quiet title to real estate, and is filed by the board of chosen freeholders of the county of Cumberland to quiet title to certain land in the city of Bridgeton, now in the 'possession of that board, on which land the old clerk’s and surrogate’s offices of that county stand.

<p>On demurrer of Eisele & Manning to bill of interpleader.</p>

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

<p>Final hearing on pleadings and proofs.</p>

<p>1. The Divorce act, 1907 (P. L. 1901 p. 1/16 % 6), provides that jurisdiction in divorce may be acquired over a resident by personal service. Section 7 provides that, when the defendant cannot be personally served, jurisdiction may be obtained by publication, followed where practicable-by service on or notice to the defendant without the state. In a suit for divorce against a non-resident, a citation was issued and sent to plaintiff’s solicitor, and was returned into court with service acknowledged by defendant’s solicitor, and appearance was also entered by defendant’s solicitor and an answer to the action filed.—Held, while in ordinary causes •the entry of an appearance and the filing of an answer would give jurisdiction, in divorce suits the proceedings must be strictly adverse and in accordance with the statute, so that no jurisdiction was acquired over the defendant.</p> <p>2. Section 9 of the Divorce act of 1907 (P. L. 1901 p. 1/18), which provides that the process and procedure in divorce causes shall be the same as other chancery causes, except so far as other process and procedure is prescribed, is necessarily qualified by sections 6 and 7, which prescribe the process necessary to obtain jurisdiction over a. defendant, and cannot, therefore, be held to authorize service as in ordinary equity proceedings.</p>

<p>1. A putative father is incompetent to testify that a child born to the mother after marriage, though conceived before, was not his child.</p> <p>2. The chancery court has no authority to provide for the support and maintenance of children upon annulling a marriage, unless authorized by a statute.</p> <p>3. P. L. 1902 p. 263 § 8 provides that when the parents of minor children live separately the court of chancery, upon petition of either parent, shall have the same power to make decrees or orders concerning- their care and custody and maintenance as concerning children whose parents are divorced. A husband and wife were married while the husband was under the age of consent, and. a child was bom, and afterwards the husband sued for annulment.—Held that, upon granting an annulment of the marriage, an allowance would bo made to the wife for the support of the child, even though the husband has not yet reached his majority.</p>

On exceptions to master’s report in a foreclosure suit. On January 10th, 1898, the Carteret Steel Company owned an undivided interest in property in Morris county known as the Copperas Mine Tract, which, it mortgaged to the complainant as trustee to secure an issue of bonds aggregating $100,000. The mortgage contained a provision that it should cover after-acquired property, and a note of this provision was inserted in the bonds secured thereby.

<p>The rule requiring corroboration of the evidence of a party to a suit for divorce on the ground of adultery—Held, to be satisfied by the testimony in this suit.</p>

<p>When a wife in a suit for divorce against her husband petitions for alimony and counsel fee pendente Ute her sworn statement alone in proof of the alleged matrimonial offence is insufficient; for, in order to obtain preliminary relief she must make a prima facie case, and as a divorce in this state is never granted upon the uncorroborated testimony of the complaining party, a prima facie case is not made by her affidavit unsupported by other evidence.</p>

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

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

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

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 78 N. J. Eg. (8 Buck.) 819.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 76 N. J. Eq. (6 Buck,.) 230.</p>

<p>On appeal from an order of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported in 78 N. J. Eq. {8 Buch.) 96.</p>

<p>Where a decretal order that disposes of the merits of a question expressly reserves for further consideration and subsequent decision a single-point of practice which is disposed of later by a separate order an appeal from such last-mentioned order does not bring under review the propriety of the main order from which no appeal was taken.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Walker, whose opinion is reported in 78 N. J. Bq. (8 Buck.) 198.</p>

<p>In order to establish a parol trust against a legatee, which equity will enforce on account of the legatee’s fraud, the evidence must be clear and satisfactory. The evidence in this case falls short of that standard.</p>

822. The complainants are stockholders of the Beattie Manufacturing Company and seek by this bill to compel the directors to declare a dividend of all the net earnings and accumulated profits not, needed for the legitimate purposes of the company’s business. The bill was filed September 20th, 1905.

<p>On appeal from a decree of tbe court of chancery advised by Vice-Chancellor Walker, denying a preliminary injunction.</p>

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

<p>On appeal from a decree of the court of chancery made by the chancellor, whose opinion is reported ante p. 1.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported ante p. 518.</p>

On appeal of Audrey Osborn, adopted daughter of Jacob Stout, deceased, from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in '77 N. J. Fq. (7 Buch.) IBS.

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Walker, whose opinion is reported ante p. 150.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported ante p. h85.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 78 N. J. Fq. (8 Buch.) 807.</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.</p>

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

<p>On appeal of Alexander Murray from a decree of the court of ^hancery advised by Vice-Chancellor Stevenson, whose opinion is reported ante p. 322.</p>

<p>On appeal from an order of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported ante p. 99.</p>

<p>• On appeal from a decree of the prerogative court advised by the Viee-Ordinarv.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported ante p. 480.</p>

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

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 78 N. J. Fq. (8 Buck.) 4-S7. . . ,</p>

<p>On appeal from an order of the court of chancery advised by Vice-Chancellor Stevens overruling a demurrer.</p>