Volume 82 — New Jersey Equity Reports

<p>1. Where the bill for partition alleged that the owner devised the lands to his wife for life and at her death to his children, allegations in the answer of one of the children, who was also executor, setting- out the items of the will devising the land and directing the executors to pay-debts, would not be stricken, where the will was short and' did not tend to cumber the record to any appreciable degree, since at some stage in the proceedings the executor might seek to have a portion of the proceeds of sale paid to him for the purpose of paying debts; and therefore it could not be said with certainty that the items of the will set forth would not be pertinent.</p> <p>2. In a suit for partition of land of which the parties’ mother died seized, allegations of tike answer, setting out the source from which she derived her title, were at most' merely surplusage, and in no manner tended to hamper or delay the complainant in the progress of the suit, and therefore, would not be stricken.</p> <p>3. In a suit for partition, in which the bill also sought an accounting by one of the tenants in common of the rents, issues and profits collected by him, allegations, of the answer, after expressing a willingness to account, setting forth a number of items of receipts and disbursements not clearly constituting an account, which largely encumbered the record and served no useful purpose, because a proper account could be regularly taken later in the case, would be stricken.</p> <p>4. In a suit to partition land devised to complainants and defendants by their father, a mortgagee and creditors of the father were not necessary parties, as the partition would not affect any legal or equitable rights of the creditors.</p> <p>5. In a suit to partition land devised to the parties by their father, brought twenty-two j'ears after the father’s death and six years after a life tenant’s death, allegations of the answer of a defendant, who was also executor, setting up a debt against the father, on which he had paid the interest, would be stricken as an attempt to engraft upon the partition proceedings an examination into, and settlement of, the executor’s account, tending to delay and embarrass the conduct of the suit.</p> <p>6. In a suit for partition allegations of the answer as to an agreement between the parties that the premises should not be sold for less than $8,000, that it was expected that a railroad would be built through or near them, and that it was decided not to sell until the improvement was made, -would be stricken as irrelevant.</p> <p>7. In a suit for partition the cross-bill of a defendant, alleging certain expenditures under an agreement with the other parties, which he claimed gave him an equitable lien or mortgage on the interests of the other parties, would be dismissed, where he did not ask to have the agreement declared a lien, but merely asked payment from the proceeds of the sale.</p> <p>8. In a suit for partition a cross-bill by a defendant, who was the executor of the parties’ testator, setting up funeral expenses and other expenses paid by him as executor, would be dismissed.</p> <p>9. Where no relief is prayed for in a bill against a defendant, the bill will be dismissed as against ikirn.</p> <p>10. On a motion to strike out the answer and cross-bill, where the moving parties were partially successful, no costs would be allowed to either; but a party whose motion was granted be allowed her costs of the motion.</p>

<p>1. Where lands sought to be partitioned are susceptible of actual partition, the court under 8 Comp. Stat. 1910 p. 3903 § 16, may not order a sale unless a division will greatly prejudice the interest of the owners, which is a, question of fact to be determined on the facts conceded and established.</p> <p>2. The objects of a partition are to avoid the inconvenience resulting from a joint or common possession and to enable the persons entitled to take possession of and improve their respective shares.</p> <p>3. That lands sought to be partitioned are subject to taxes and municipal liens, that they are unimproved and yield no income, that the title of the owners is an estate for life limited over to persons who may not bo in esse, which facts make it undesirable for the owners to improve the lands so as to make them yield an income, and that such owners being unable to convey a clear title cannot sell them for a reasonable price, does not justify a sale for partition, especially where the evidence discloses a steady growth in value since the death of the deceased owner.</p> <p>4. The fact that the parties to a suit for partition hold an estate for life limited over to persons -who may not be in esse furnishes no valid reason for a sale of the lands susceptible of actual partition, since the purchasers will acquire no better title than the parties have.</p>

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

<p>Heard on amended bill, answer and answer by way of cross-bill.</p>

<p>1. A court of equity has jurisdiction to compel a trustee to pay funds into court to await final disposition, where the relationship of the parties is that of trustee and cestui que trust, and the exercise of the power is not relaxed because the trustee has misappropriated the fund.</p> <p>2. Where an attorney, having collected a mortgage for his client, after receiving his fees, failed to pay over the balance, and attempted to make himself his client’s debtor by executing a note to her therefor with a chattel mortgage, securing the same, he did not thereby escape the obligations, incident to his relation as attorney to pay over the fund, but w.ould be summarily ordered to make payment forthwith, together with the costs of the proceeding and a counsel fee to indemnify his client for the expenses incident thereto.</p>

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

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

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

<p>1. Where the jurisdiction of this court was invoked by complainant’s bill expressly on the ground of irreparable injury, and the legal rights of complainant were submitted for decision to the court at final hearing upon the basis that if they existed the complainant was entitled to protection against this irreparable injury, and the complainant itself did not by its bill or at the hearing ask that this be settled at law, nor did the defendant insist on any right to have a settlement at law, the circumstances of irreparable injury gave it undoubted jurisdiction of the case, and a right, so far as the question is one of jurisdiction, to proceed to the final determination of the cause.</p> <p>2. Where the complainant can settle the legal title by action at law, and the injury complained of is not irreparable, the court of equity, even at final hearing, and when the parties have tried and submitted the question of title to the court without objection or request for trial at law, should not ordinarily settle the title and protect it by final decree, but retain the bill until complainant had reasonable opportunity to establish its title at law.</p> <p>8. The rule is established that where the jurisdiction of the court to protect complainant’s legal title is based on the ground of irreparable damage, and the defendant, without proper objection by its answer or otherwise, goes to hearing on the merits, any rigiht to a settlement of title at law may be considered as waived and the court has, as a matter of jurisdiction, the right to settle the title at final hearing, and on the question of exercising this right instead of holding the case for settlement at law, will consider all the circumstances of the case.</p>

<p>1. While a mortgage to secure future advances is valid, yet, if it is optional with the mortgagee whether to make future advances or not, those made after notice of a subsequent encumbrance or transfer are not a prior lien.</p> <p>2. 8 Oomp. Stat. 1910 pp. 8302, 8808 §§ 11/, 15, limiting the right of the mortgagee under advance money mortgages given to secure building loans to claim only for moneys applied to the erection of the -building, &c., while applicable between a lien claimant and the mortgagee, does not apply as between the mortgagee and mortgagor and those claiming under the latter by assignment, whose rights are governed by the principles relating to advance money mortgages.</p> <p>3. Where a building and loan association accepted an advance money mortgage to secure a building loan, the association’s right to control the application of the advances, when made, was only incidental to its right to sufficient security for the loan, and was a right, the exercise of which, as between it and the mortgagors, was optional with the association.</p> <p>4. Where a realty company had executed an advance money mortgage to a building and loan association to obtain money to erect buildings, the realty company's right to future advances, under the mortgage was an assignable property right, and, having been in part assigned, the assignee was entitled to receive the advances covered by the assignment as against grantees of the property who had notified the mortgagee not to make further advances.</p> <p>5. After a valid assignment of future advances to be made under an advance money mortgage to a building and loan association, neither the assignor nor a subsequent assignee, standing on their rights, is entitled, as against the prior assignee, to revoke the assignment.</p> <p>G. Where a mortgagor, under an advance money mortgage to a building and loan association, directed the association to pay to a lumber company $582.50 out of the third payment on the mortgage and a similar amount out of the fourth payment, making a total of $1,165 in two mortgages, &c., it was a sufficient equitable assignment; the test being whether the contract authorized the depositary to pay the fund directly to the assignee without further intervention of the debtor or party originally entitled thereto.</p> <p>7. A mortgagor under'an advance money mortgage to a building association directed the association to pay a lumber companji- $582.50 out of the third payment and a similar amount out of the fourth payment.— Held, that the order was not invalid because no further payments outside of the order were made on the mortgage; the association being bound and having held itself in readiness to make advances demanded until default of the mortgagor or abandonment of the contract, &c., so that, the contract for future advances being in force at the time of the assignment, the first payment thereunder would operate as the third payment, and the fourth payment, out of which the balance was payable, would become due at the latest when the association directed the commencement of foreclosure proceedings.</p>

<p>1. Where a corporation which succeeded a partnership of the same name claimed the right to use the name “Scientific American,” which had been previously owned by the partnership, parol evidence that the transfer of the partnership assets to the corporation included the right to the use of such name was sufficient to sustain a finding’ that the corporation owned the name, in the absence of any objection thereto or insistence by defendants that the transfers should be produced.</p> <p>2. Where complainants, engaged in the issuance of a periodical known as “Scientific American,” authorized defendants, by written contracts for a consideration, to use the name “Scientific American Compiling Department” in the compiling' and sale of a scientific encyclopedia called the “Americana,” before such contracts were finally determined in June, 1911, defendants were not entitled to use such name in editions of the work put out after that time, except to show that the original work had been compiled in connection with complainants' bureau.</p> <p>3. Where defendants’ right to use the words “Scientific American” in connection with the sale of subsequent editions of a scientific encyclopedia terminated in June, 1911, and complainants showed instances of loss of advertising or subscriptions as a result of dissatisfaction with the encyclopedia, and also that defendants’ further use of the name was calculated to injure complainants’ property, and would probably expose complainants to risk or liability, injunction was the proper remedy.</p> <p>4. Where defendants, in compiling a scientific encyclopedia, procured the right from complainants, which published the “Scientific American,” to put out the encyclopedia under the name “Scientific American Compiling Department,” defendants’ right to use the name depended solely on contract, so that on the termination thereof defendants were not entitled to longer use the name in- connection with subsequent editions of the work, both on the principle of estoppel, and on the theory that to longer use the same would tend to mislead the public.</p> <p>5. A corporation, in assuming a name in which to carry on its business of publication, has no right to adopt a name which, prima fade without explanation, will fairly indicate to a person dealing with it, of average and ordinary intelligence, that the work is the publication of another, since the restriction on the selection and use of corporate names or methods of business, tending to deceive the public, are independent of statutory restriction, and additional thereto, and may be enforced on behalf of persons to whom the use of the name would occasion injury.</p> <p>6. Where a contract authorizing defendants to use the words “Scientific American” in connection with the sale of a scientific encyclopedia finally terminated in June, 1911, the fact that complainants delayed filing a bill to enjoin defendants’ continued use of the name until December, 1911, which delay was due largely to time required to procure evidence, was insufficient to charge complainants with laches.</p> <p>7. An injunction restraining the further use of the name “Scientific American” in the corporate name of a corporation, putting out a scientific encyclopedia, which, under contract with complainants, had previously been published as coming from complainants’ compiling department under the name “Scientific American Compiling Department,” would not be denied on the ground of hardship, where the hardship or injury to such corporation from the discontinuance of the name, if any, would be brought about by its acts in increasing its stock and taking over the assets and contracts of another corporation, which had previously published the encyclopedia, after the contracts authorizing- the use of the name had expired.</p>

<p>1. Where a subordinate branch of a beneficial association was incorporated under 'the state laws, its so-called constitution and laws by which, it recognized the authority of the supreme court of the order, &c., and agreed to abide by and conform to its general laws, &c., from a legal standpoint could be regarded as nothing more than the corporation’s by-laws.</p> <p>2. Where a subordinate court of a beneficial association was cited by the grand court to show cause why it should not be suspended or dissolved for improper conduct, and for neglecting' or refusing to conform to the rituals, &c., it could only be subject to punishment after adjudication of guilt and a finding that the charges had been sustained by the evidence.</p> <p>3. An incorporated subordinate court of a beneficial association adopted by-laws acknowledging- its allegiance to the supreme body, but on the subordinate court devolved the duty of administering tihe funds collected for the benefit of its members. One of the grand court’s by-laws provided that, should any subordinate court become dissolved or suspended by operation of law or otherwise, or should be expelled or should secede 'from the order, all property, money, goods and effects should vest in and be delivered to the grand lodge on demand. It did not provide, however, that the grand court should take the money and other property of the dissolved court and apply them to the payment of its debts or for other uses for which they had been contributed.—Held, that the grand court of the order had no jurisdiction to dissolve the subordinate court and recover its funds and property and administer the fund, whether the subordinate court should be considered as a voluntary association or a corporation.</p> <p>4. A forfeiture will not be enforced in equity as against a subordinate court of a beneficial association, which was incorporated under the state laws, where the enforcement of the forfeiture will incapacitate the corporation from performing the very duty for which it'has been constituted.</p>

<p>1. Nothing is better settled than that there is no equity to perfect an imperfect gift. A man may transfer his property without valuable consideration in one of two ways; he may either do such acts as amount in law to a conveyance or assignment of the property and thus completely divest himself of the legal ownership, in which case tliG person wiho by those acts acquires the property takes it beneficially or on trust as the case may he; or the legal owner of the property may by either one of the modes recognized as amounting to a valid declaration of trust, constitute himself a trustee and without an actual transfer of the legal title may so deal with the property as to deprive himself of its beneficial ownership and declare that he will hold it from that time forward in trust for the other person.</p> <p>2. The several modes of assignment are as applicable to the case of gifts as to those of transfers for value. The gift is just as completely vested by the one mode as by the other, and it is settled law that the fact that a bond is not payable to bearer, and that the instrument is not negotiable, does not prevent a valid gift of it by manual tradition without writing.</p> <p>•3. Where A., a business man of mature years, possessed of considerable property, while engaged to be married to Miss F., handed her a coupon bond of the Passaic Water Company for one thousand dollars, registered as to principal in the name of A., and on its face payable to bearer or registered holder thereof, and providing that it “may at any time be registered in the name of tike owner on the books of the company ; * * * after which this bond shall be transferable only upon the books of the company, until it shall, at the request of the holder, be registered as payable to bearer, which shall restore transferability by delivery,” and although he lived for six or seven years after it came into Miss F.’s possession, did not reclaim it, reclamation being all the more easy because of the fact that tike bond stood registered in his name, and told a friend that he had made Miss F. a present of a bond of that description, and she took the interest accruing upon it for ten or twelve years before her death—Held, that it was natural, situated as they were, that he should have made a gift, and there being no evidence against it, the inference that a gift was actually made was the only fair inference from the proofs.</p> <p>4. The gift did not remain incomplete because of the clauses in the bond, which provide that it is payable to the bearer or registered holder, and that if registered it shall be transferable only on the books of the company, until it shall, at the request of the holder, be registered payable to bearer “whieh shall restore transferability by delivery."</p> <p>5. There are two kinds of corporation bonds in common use to-day: those that are negotiable, and those that are merely assignable. The object of the clause in question was to give the owner the option of having- either the one form of obligation or the other, at his pleasure.</p> <p>’6. The failure to direct the company to make a transfer on its books, standing by itself, is without significance as long as it is the doctrine of this court that a valid gift may be made by parol. Proof of failure to make in one way is no proof of failure to make in another.</p> <p>7. The administratrix of Miss F. having requested the defendant company to register the bond in question, and such request having been refused, this court will compel a performance of the company’s agreement to register the bond. A suit for damages based on the refusal to do so would not be a complete or satisfactory remedy.</p>

<p>Final hearing on bill to quiet title.</p>

<p>A corporation was in possession of corporate stock under an agreement between defendant and co-defendant that, if defendant should pay to the corporation for the use of co-defendant an amount stipulated, the corporation should deliver the stock to defendant, otherwise to co-defendant. A dispute as to the amount to be paid arose, and co-defendant demanded that the corporation should not deliver the stock unless a specified sum was paid by defendant, who insisted that a less sum was due, and subsequently notified the corporation that if it delivered the stock to co-defendant, it would be held liable.—Held, that the controversy presented adverse claims for possession of the stock, and the corporation could compel an interpleader.</p>

<p>1. A bank which received a note from a depositor for collection for the latter’s use, and which enters the note in her individual pass-book for collection and credit to |her account, thereby creates the relation of bailor and bailee between the depositor and the bank, and the bank may not inter-plead her with one claiming the fund by paramount title.</p> <p>2. Bailees, agents or tenants may interplead their bailors, principals or landlords and a third person setting up an opposing claim only wheie the title o£ the opposing claimant is derivative and not antagonistic, and paramount to that of the bailor, principal or landlord.</p>

<p>1. Under act April 20th, 1906 (P. L. 1906 p. 269), requiring notice of sale under foreclosure decree to specify all liens subject to which the sale is to be made, the court was required in a suit to foreclose a mortgage to decide whether the mortgage is superior to the rights of defendant under a tax title.</p> <p>2. Act March 14th, 1879 (P. L. 1879 p. 340), as amended (3 Gen. Stat. 1893 p. 3353), provides that no sale of land for taxes under the act shall destroy or affect the lien of a prior mortgage duly recorded, unless the purchaser shall give to the mortgagee notice to redeem, which shall be served personally, if mortgagee can be found, if not, then by mailing it enclosed in an envelope plainly addressed to his last-known post-office, with postage prepaid, and requiring the purcihaser to transmit a copy of same with due proof of service to the county clerk to be recorded.—Held, that the proof of service transmitted to the clerk—the affidavit of purchaser—was insufficient to show due service of notice, since it did not disclose that statutory requirements were complied with.</p> <p>3. Act March 14th, 1879 (P. L. 1879 p. 340), as amended (3 Gen. Stat. 1895 p. 3358), provides that no sale of land for taxes under the act shall destroy the lien of a prior mortgage unless, within a prescribed time, the purchaser shall serve a prescribed notice to redeem upon the mortgagee of prior mortgage, which notice, with proof of service, shall by the purchaser be transmitted to the county clerk to be recorded.—Held, that, though the proof of service, transmitted to the clerk and forming part of a public record, was competent evidence of service, it is not evidence of more than it actually contains, since it is unaided by any statutory presumptions.</p>

<p>Final hearing on bill to terminate a trust under a will.</p>

<p>Hearing on application for allowance for counsel fees.</p>

<p>The rule declared with respect to the issuing of writs of assistance in Barton v. Beatty, 88 N. J. Eq. (1 Stew.) 1¡18, and in Board of Some Missions y. Davis, 10 N. J. Eq. (4 Robb.) 511, followed in this suit.</p>

<p>Final hearing on bill, answer, replication and proofs, to set aside a conveyance.</p>

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

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

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

<p>3.. Where a bill was filed for the regulation of the affairs of a religious society, known as the Northside Christian Reformed Church of Passaic, upon the ground that there was a misappropriation of the property and temporalities of that society, the same having been diverted by a faction of the church to the denomination known as the Reformed Church in America, and the bill is filed by the complainants not only on their own behalf, but also on behalf of all members of the same congregation wiho are similarly situated, and alleges there is a schism in the church, and that a faction represented by the defendants has seceded therefrom and joined another denomination; that the seceders have obtained possession of the church property, and, without the consent of the complainants and their adherents, are attempting to carry the church property with them and place it under the control of such other denomination, and the complainants claim that this is being attempted not only against the substantive rules of law regulating affairs of religious societies, blit that it is done and is being done, in an unlawful and irregular maimer, and that the result is, that the defendants committed a breach of their trust as trustees of the Northside congregation in despoiling it of its property, and the bill seeks a restoration of the property to the denomination to which it originally belonged, and to enjoin the defendants from intermeddling with it or its possession or use as one of the churches affiliated with the Christian Reformed Church of America; and at the instance of this court proceedings by way of quo warranto were taken at law, in the form of a rule to show cause why the writ should not issue for the purpose of testing the right of certain of the defendants to hold the offices of elder and deacon, and consequently, the office of trustee, resulting in a rule of the law court discharging tike rule to show cause in favor of the respondents, upon the ground that their title to their offices was unimpeachable, that the meetings, at which it was voted to secede were regularly called and held, and that the right to secede existed.—Held, that the judgment in the supreme court cannot be held to be such an adjudication upon the merits upon the controversy as will preclude the examination into the matter in the present proceedings.</p> <p>2. The parties to the quo warranto proceedings are slightly different from the parties to this suit, and the issues in this suit are much broader and more various than those presented by the supreme court record. There the sole issue was whether quo warranto proceedings should be instituted to test the title of certain of the defendants herein to the offices of elders and deacons or members of the consistory of the religious society. The bill in this case raises the further question as to whether the defendants and a faction of the congregation have a right to secede from one denomination and join another denomination and take the church property and temporalities with them. A mere statement of these differences is a demonstration that the doctrine of res judicata cannot apply to this case.</p> <p>3. Primarily, the title to the office of elder or deacon or trustee must be litigated at common law; but it is likewise true that there is a class of cases in which courts of equity have examined the title to an office where there was some paramount equity to which the question of official title or authority was merely incidental.</p> <p>4. According to the decisions in this state the action of the defendants and their adherents is void, in so far as it attempts to subject the property in question to the control of the authorities of the Reformed Church in America; it is a breach of trust on the part of the defendants to assist in or connive at the transfer of the property in question from one ecclesiastical body to another without the consent and concurrence of all concerned, or without a proceeding whose validity and effect is beyond contention.</p> <p>5. The proceedings for the transfer of a portion of this congregation and the whole of its property to the Reformed Church in America examined, and held, irregular and disorderly to such an extent as to be voidable on the complaint of any one interested.</p> <p>6. The rules of law relating to freedom of action by independent churches and congregations are different from those rules which apply to congregations which are affiliated with, and are subordinate to, higher judicatories. Independent churches may do what they please with their property, provided legal action is taken to that end, but when a religious society becomes affiliated with other religious societies, and they unite to construct and maintain for their mutual advantage higher judicatories to which they subject themselves, then the individual society or worshiping unit holds its property and temporalities under an obligation to continue the affiliation until it can be broken by mutual consent; and if secession is attempted by a faction however large or however small, such faction will not be allowed to carry the church property with it, certainly not so long as there is a loyal body which is recognized by the superior judicatory.</p> <p>7. In case of a schism in a church which is in connection with, and a constitutent part of, an ecclesiastical organization, and which has a head invested by its constitution or recognized usage with other supervisory and supreme control over the constitutent parts to determine all questions producing schisms and divisions between members, and to recognize and decide what faction is in the right, it is a well-settled law of the civil courts that the title to the property is in that part of the congregation which is acting in harmony with its own law and the ecclesiastical laws, usages, customs and» principles which were accepted among them before the dispute began, which are the standards for determining which party is in the right.</p> <p>S. As to the status of the defendants—they were at one time elected trustees of the Northside church, and it was by virtue of tiheir office as such trustees that they were enabled to obtain and hold possession of the church property, but having voluntarily severed their connection with the Christian Reformed Church, and having become members of another denomination, they have by their own act so far renounced their trusteeship as that they can no longer represent the church society in that capacity or any longer meddle with its property and affairs.</p> <p>9. While it is incompetent for this court to oust a trustee from his office of trustee of a religious society, it, however, does have the power and jurisdiction to declare that such a person has by his own act voluntarily renounced his office, and in this case that is what the defendants have done. They no longer act as trustees for the Northside Church of the Christian Reformed Church of Passaic, they are acting as trustees of a church of an entirely different denomination and the effect of that is that they cannot be considered trustees of this society.</p> <p>10. The same thing is true of the defendant Van Den Heuvel. He was under ecclesiastical censure at the time the secession took place and had been deprived of his right to minister to the congregation, which action had been sustained by the superior judicatories of the church. It was therefore unlawful for him to occupy the pulpit of that church and to accept a call to be its pastor and to officiate as the minister of the church until the ecclesiastical censures were removed. By his own voluntary act also, he has renounced his connection with the Northside church, and should not be permitted to officiate as its pastor.</p> <p>11. The decree should be for the complainants and should adjudicate tihat the complainants are the sole trustees of the Northside church, and that they are entitled as such to the custody and possession of the cihurch property. The defendants should be restrained from intermeddling with the property or from diverting it or attempting to divert it from the denomination known as the Christian Reformed Church of Passaic, and from retaining possession of or holding the property and temporalities of the church. There should likewise be an injunction against Van Den Heuvel restraining him from acting as pastor of the church or in any way ministering to the congregation as pastor.</p>

<p>On motion for preliminary injunction.</p> <p>The complainant seeks an injunction to prevent the defendants from doing what he insists is a taking of his property for the public use without having first made him compensation therefor. The Passaic sewerage commissioners is a corporation of this state created in 1903 for the purpose of constructing an intercepting sewer in that territory which the legislature has designated as the Passaic Yalley Sewerage District, and is operating under the following statutes: P. L. 19OS p. 190j P. L. 1902 p. 195; P. L. 1903 p. 158; P. L. 1903 p. 777, and P. L. 1907 p. 22. That portion of the law of 1903 which provided for taxation was declared to be unconstitutional in the ease of Van Cleve v. Commissioners, 71 N. J. Law (1¡.2 Vr.) 57k-; the defect was supplied by the act of 1907 above cited. The commissioners in the performance of their duties let the contract for. the construction of section seven of the sewer which thc-y were required to build, to the defendants Booth & Flinn, in February, 1913, their bid being nearly one and a half million dollars. In the month of March, 1913, they began the work which is now complained of. A portion of the sewer is being constructed many feet under ground by a tunnel construction method longitudinally under Hamburg place, in the city of Newark. The complainant is the owner of a plot of land having a frontage of twenty-five feet on Hamburg place, with an L from the rear giving access to Napoleon street. He claims to oto the title to the land in the street in front of his property to the centre line thereof. The sewer, as laid out, and as it is being constructed, is wholly on that side of the centre line of the street on which ■the complainant’s property is situated. To the eastward of the complainant’s property, and on the corner of Hamburg place and Napoleon street, is a vacant lot. This is occupied by the commissioners and the contractors for storage and other purposes connected with the work. In front of this vacant lot, within the lines of the roadway o£ Hamburg place, and close to the curb line on the complainant’s side of the street, the contractors have constructed a shaft extending from the surface of the ground to the sewer beneath. This shaft is the means by which the excavated earth is removed and the materials for the sewer construction admitted, and. is besides a permanent structure for access to the sewer. In the construction and use of this shaft a frame work has been erected in front of the complainant’s property, and a fence built to enclose the top of the shaft. At the time the bill was filed this fence occupied about four and a half feet of the sidewalk in front of the complainant’s property, but since the bill was filed the defendants’ affidavits show that the shaft has been completed, and the fence moved to the curb line. This leaves the sidewalk in front of the complainant’s property unobstructed, except- by the erection of one post to support some portion of the overhead work connected with the hoisting apparatus used in the shaft.</p> <p>The complainant at the time the sewer work began was engaged in the business of butcher on his premises and had free access from the front portion thereof to the sidewalk and across the sidewalk to the curb and across the sidewalk and the curb to the roadway, and he and his customers were accustcmed to use the roadway and the sidewalk in front of the complainant’s premises in the transaction of their business. This access has been entirely destroyed temporarily by the construction of the -fence and hoisting apparatus in front of the complainant’s property and the extension thereof many feet on both sides of his premises. lie claims that he is suffering an injury by these circumstances which is peculiar to his situation, and which is much greater than the injury sustained by any of his neighbors, that there should be a differentiation between the injury suffered by him from the construction in front of his property and the injury sustained by other property owners in front of whose property no such obstruction has been erected, and that these circumstances amount to a taking of his property without compensation within the meaning of the constitutional provision.</p> <p>The law of 1907, above referred to, provides that the commissioners mav</p> <p>“build and construct said intercepting sewer or sewers, and the necessary-appurtenances thereto, to the point or points of the discharge and disposition determined by said contract, and for this purpose to pass through or partly through territory situated within the bounds of any other municipality than those contracting with it for the construction of said work, and they shall have full power to construct such intercepting sewer or sewers and its appurtenances along, under and over any water course, or under or over or along or across any street, turnpike, road, railroad, highway or other way or public parks or grounds, and in or upon private or public land under water, in such way and manner, however, as not necessarily to obstruct or impede travel or navigation, and may enter upon and dig up any street, highway or private or public lands for the purpose of constructing said work and appurtenances, and for repairing and maintaining the same, and in a general way to do all other acts and things necessary, convenient and proper in connection with the making and maintaining of the improvement contemplated by the provisions of this act.”</p>

<p>While the maximum rates of commission allowed to a trasteé are fixed by statute, the actual rate allowed is within the court’s discretion, depending upon the actual trouble, risks, &e., incurred, according to the particular circumstances.</p>

<p>1. The executor, under a will giving the residue from the proceeds of sale of any. and all the real property of testatrix to a medical college, and imposing' upon him the duty of carrying out and performing the devises of the will, had an implied power of sale to enable him to perform such duty.</p> <p>2. A will devising “the residue from the proceeds of sale of any and all my real property” to a medical college, and requiring the executor to carry out and perform the beneficiary devises of the will, was not objectionable for indefiniteness or uncertainty.</p> <p>3. Where testatrix, a graduate of the Women’s Medical College of Pennsylvania, made a residuary bequest to the Women’s Medical College of Pennsylvania, it would be construed as referring to the Women’s Medical College of Pennsylvania.</p> <p>4. A gift of the residue of an estate to the Women’s Medical College of Pennsylvania, with the wish that the donor’s nieces or their female posterity, if worthy, be given preference in the scholarship, was not invalid because the donor did not point out the particular beneficiary, since she endowed the college with express or implied power to select such beneficiaries.</p> <p>5. On bill by an executor for the construction of a will giving the residue to a medical college, the court, on construing the will in favor of the residuary devisee, was authorized to allow costs and counsel fees to each of the parties out of the residuary fund in the executor’s hands.</p>

<p>On bill to foreclose, and cross-bill.</p>

<p>1. Language of a will directing payment of $10,000 to R.—Held to constitute a bequest and not a mere direction to pay a debt.</p> <p>2. Where a legacy is bequeathed subject to a condition precedent, without limitation over, such a performance of the condition as substantially fulfills the intention of testatrix is sufficient to entitle the legatee to take,. when an adequate reason appears for lack of strict performance.</p> <p>3. Where a legacy is bequeathed subject to a condition precedent, and the performance of the condition is made impossible by the act of testatrix, the bequest is absolute.</p>

<p>On bill, &c. On petition of Minnie Borgstede.</p>

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

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

<p>On bill, answers and proofs.</p>

<p>1. Under 1 Comp. Stat. 1910 p. ¡¡51 § 118, providing that no appeal from a decree granting an injunction shall suspend the injunction without an order of the chancellor or of the court of errors and appeals for that purpose, an injunction, decretal or by writ, is unaffected by an appeal, and a defendant desiring to be relieved from an injunction pending his appeal therefrom must move for that pui’pose either before the ehancenor or in the appellate tribunal.</p> <p>2. The issuance pending an appeal of an injunction restraining defendant, a yacht club, in the language of the decree which enjoins it from engaging in the enterprise of a yacht club under its corporate title, and from using a pennant so as to mislead the public to the detriment of complainant’s undertaking, will not destroy the subject-matter of the appeal, for defendant may engage in its enterprise as a yachting club without advertising under the name and pennant complained of.</p>

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

<p>1. Evidence held to require a finding that a conveyance of attached land belonging to a debtor, filed for record after the ‘ attachment and dated one day prior to the date of the writ, conveying the property to a corporation, the stock of which was controlled by the debtor’s wife, was fraudulent as against creditors.</p> <p>2. Conveyance of property of an insolvent debtor to a corporation formed by him for the sole purpose of taking over the property, the consideration of which is the issuance of all the capital stock of the company, is void as against creditors.</p> <p>3. Where attached property valued at $25,000 was sold to an attaching creditor for $1,870 under a judgment for $2,662.34 and the creditor thereupon sued in equity to set aside an alleged fraudulent conveyance of the property to a corporation, which conveyance was found to be fraudulent, he was only entitled to the amount due on his debt and not to the property, under the rule that he who seeks equity must do equity.</p>

<p>1. A restrictive covenant that all buildings and additions on the land conveyed erected by the grantee, his heirs and assigns should be set back on a line with other buildings on the same side of the street, should be construed as prospective and ambulatory in its operation and application, meaning that, whenever a building line should be created by erections of neighboring owners, the covenantor and his successors in title could accommodate themselves to that line.</p> <p>2. A restrictive covenant provided that all buildings arid additions which the grantee, his heirs and assigns should erect on the property should be set back on a line with the other buildings on the same side of tike street.—Held, that the covenant was at least ambiguous, and would not be enforced in equity as against one desiring to construct a business building on the street line after the locality had changed from residential to commercial, and nearly all the buildings devoted to business were constructed on the street line.</p>

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

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

<p>1. “Insolvency” as an act of bankruptcy in the sense employed by the amendment of 1903 of the Bankrupt act, means that condition of financial affairs of the alleged bankrupt “whenever the aggregate of his property * * * shall not at a fair valuation be sufficient in amount to pay his debts.”</p> <p>2. A decree of insolvency made pursuant to section 65 of the Corporation act and based in part upon the fact that the company’s liabilities exceed its assets, will not be amended by declaring that it was founded upon a type of insolvency not recognized by the Bankruptcy act, in order to escape the operation of- the act.</p> <p>3. The decree cannot be amended by striking out the true jurisdictional ground of insolvency and substituting another “that the company has been and is doing business at a loss” when the pleadings and proofs contain no allegations or averments of facts manifesting such a situation, and it was not at the hearing advanced, nor entertained by ■the court as a ground upon which the adjudication was made.</p> <p>4. If by inadvertence or mistake the final decree had declared otherwise than that which was adjudged by the court, or if the judgment had in any manner been faultily stated, then this court would correct its decree so that it would comport with the findings.</p> <p>5. Belief by petition for rehearing, or a bill to review, would not avail the complainant in the face of the concessions made by the proofs that the liabilities in fact exceed the assets.</p>

<p>1. P. L. 1907 p. 22, authorizing the municipalities in the Passaic valley sewerage district, created by P. L. 1902 p. 190, or any of them, to determine the advisability of constructing an intercepting or trunk sewer for the disposal of the sewage of the valley at a safe and proper place, and, having resolved so to do, to prepare maps, plans and specifications for the construction of a joint trunk or main sewer, &c., did not confer on the sewerage commission discretion to choose the type, manner of building, or location of the sewer, conferring on it only the power to suggest and prepare plans and prospectus, leaving the determination of the type of sewer, manner of building, location, &c., to the constructing municipalities.</p> <p>2. Equity may not, at the instance of taxpayers, enjoin the Passaic Valley Sewerage Commissioners from constructing a part of a trunk sewer and pressure tunnel leading to an outlet in New York bay, where such tunnel had been adopted as a part of a plan by the various municipalities for the drainage of the sewer district, 'after long and careful study of the problem, on the ground that the sewage effluent to be carried might be safely deposited in Newark bay at a saving of a large sum.</p> <p>3. A court of equity may not interfere by injunction to restrain municipalities and subordinate bodies from an abuse of discretion lodged in them by the legislature, in the absence of special equities calling for such intervention; the review of such acts, except in cases where peculiar and extraordinary rights are affected, being within the jurisdiction of the supreme court.</p> <p>4. A preliminary injunction may not be granted to restrain a portion of a public improvement authorized by statute on the ground that the statute is unconstitutional, where the constitutional question is doubtful.</p> <p>5. Where taxpayers sued the board of sewerage commissioners to restrain the construction of a pressure tunnel, part of the Passaic valley sewer, constructed under authority conferred on certain municipalities by P. L. 1907 p. BB, the municipalities were necessary parties to the suit.</p>

<p>Heard on bill, amended bill and affidavits.</p>

<p>1. When a wife, after deserting her husband, commences suit against him on a contract made between them, she forfeits the right to that protection which equity casts about her by reason of the relationship of husband and wife, and, with respect to such suits, equity will regard her as if she were a feme sole from the date of .the desertion in applying the doctrine of laches, or by analogy, the bar of the statute of limitations. 'The reasons which move equity to suspend the bar while the parties are living together as husband and wife do not exist in favor of the offending party after the desertion.</p> <p>2. - In a suit by the complainant, as assignee of the defendant’s wife, to recover the amount of two loans which she had made to the defendant, the delay in instituting the suit on one claim for upwards of sixteen years after it became due, and on the other, for about fourteen years—which periods exceed the time allowed by the statute of limitations from eight to twelve years, respectively, considering that she had lived separate and apart from her husband twelve years before the claims were assigned and suit brought—constitutes such inexcusable laches that equity should not' aid the plaintiff. '</p>

<p>1. A testator having made his will containing a pecuniary legacy to a niece, afterwards being unwilling that the same should become her absolute property, but desiring that she should have the income derived therefrom for life, and that after her death the same should become the property of other three named relatives designated by him, advised her that if she did not agree to make a will bequeathing such pecuniary legacy to said other three named relatives, he would add a codicil to his will or make a codicil thereto cutting her off, and she promised to make her will bequeathing said legacy accordingly, which so satisfied him that he allowed his will to remain unaltered.—Seld, that said other three named relatives, upon the death of the testator’s niece became entitled to said legacy (she having died five days after his death), which, if it came to the hands of her executor—she having failed to make her will in accordance with her promise—would be held by him under a trust arising eco maleficio, "and her executor would be bound to pay the same to the other three named beneficiaries.</p> <p>2. The contract is to be governed by the laws of this state where the testator resided, and not by the laws of Massachusetts where the niece made her promise.</p> <p>3. At the time of the signing of the promise the will of the niece, duly executed, was in existence and has since been admitted to probate, which disappointed the testator’s wish and violated her solemn promise. The permitting of such a will to exist was a fraud on the testator and on the three beneficiaries named in the promise. The promise of the niece having been the inducement whiih led the testator to leave his will unaltered, and her will having been in existence which violated her promise, her failure to alter it so as to comply with the promise, made the inducement fraudulent, and it is on this ground that equity assumes jurisdiction for preventing the statute of wills from becoming a means of fraud.</p>

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

<p>1. The power of the prerogative court to admit to probate a will rests exclusively on the fact that decedent was domiciled in the state at the time of his death, otherwise probate must be denied.</p> <p>2. The domicile of a wife merges into that of the husband, and the unitj- of domicile exists during coverture unless the wife actually acquires a new domicile by the consent of the husband, or a constructive one, as manifested by acquiescence, abandonment, or conduct so inimical to cohabitation as will secure to the wife a divorce.</p> <p>3. A woman of considerable means married in Pennsylvania a man of very limited means. The man’s domicile continued in Pennsylvania. Throughout their marriage she maintained herself and contributed to the support of her husband. _ She had no legal grounds for separating from her husband, and did not attempt to do so, but cohabited with him at his domicile in Pennsylvania up to within less than a month before her death, except when away in search of health. She declared that she regarded a city in New Jersey as her domicile.-'-.H'eM, not to show that she was domiciled in New Jersey, and the prerogative court was without jurisdiction to admit her will to probate.</p>

<p>On appeal from a decree of the Cape May county orphans court refusing probate of a will.</p>

<p>1. In a will contest, evidence held insufficient to show that testatrix was, by reason of the near approach of death, unable to make a will.</p> <p>2. In a will contest in which it was shown that testatrix followed the wishes of her deceased husband, evidence held, insufficient to show that her attorney unduly influenced her in so carrying out the husband’s wishes.</p> <p>3. If a testator is capable of recollecting of what his property consists and those who either in consequence of ties of blood or friendship should be the objects of his bounty, and has a mind sufficiently sound to enable him to know and to understand what disposition he wants made of his property after his death, he is competent to make a will.</p>

On appeal fr.om the Somerset county orphans court. Benjamin Brown died leaving a widow and nine children. By his will he gave his estate to his widow for life, remainder in equal shares to his children living at the time of his death, subject to advances made to seven of them. The share of one daughter, Susannah, was to be at least $2,000.

<p>The refusal of the comptroller to accept the view of an executor and legatee as to the date from which interest shall be computed on a transfer tax, is not subject to review by the ordinary, nor is the comptroller subject to the coercive powers of the prerogative court, the question being determinable only by a proceeding by the comptroller to collect the tax as provided by 4 Comp. Stat. 1910 p. 5310 § 21.</p>

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

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

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

<p>The only asset of an insolvent corporation was a chose in action then in litigation; assignments of portions of this claim had been made to several creditors at different times. The claim was settled by authority of the court of chancery for an amount insufficient to pay the receiver’s costs, allowances and fees, and the full amount due the assignees.— Held, that the costs, allowances and fees should be charged against each assignee in proportion to the amount of his claim and that the balance should be paid to the assignees in the order of priority.</p>

<p>On appeal from a decree of the court of chancery advised by Advisory Master Jay Ten Eyck.</p>

<p>1. A'* covenant in a deed of conveyance that neither party shall erect upon the land conveyed a building other than “a dwelling-house and its appropriate buildings” will not be enforced by injunction against a grantee who proposes to erect a three-story apartment-house, where it appears that the indefinite and uncertain language of the covenant has been given a practical application and interpretation upon the land by prior grantees, who were allowed to erect two-family houses of three stories and other two-family houses upon a single plot.</p> <p>2. To -warrant the issuing of an injunction to restrain the owner of the fee from applying his land to a lawful practical use, because of the existence of a restrictive covenant in the grant, it must appear that the terms of the covenant leave no doubt as to their meaning.</p>

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

<p>Voluntary separation does not amount to desertion, nor can desertion be inferred from the mere fact that the parties do not live together.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported ante p. 281.</p>

On two appeals from a decree of the court of chancery, one by John S. Broughton, and the other by Charles J. Fury, which decree was advised by Vice-Chancellor Walker, whose opinion is reported in 80 N. J. Eq. (10• Buck.) 122.

On three appeals from a decree from the court of chancery, one by John S. McMaster, receiver, another by Clarence H. Yenner, and the other by United Water Works Company, Ltd., which decree was advised by Vice-Chancellor Howell, whose opinion is reported in St N. J. Eq. (11 B-uch.) 139.

<p>On appeal from a decree made by the ordinary of the prerogative court, whose opinion is reported in 81. N-. J. Eq. (11 Buck.) iw.</p>

<p>On appeal from an order of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 78 N. J. Fq. (8 Buck.) 120.</p>

<p>On appeal from a decree of tbe court of chancery advised by Vice-Chancellor Learning, whose opinion is reported ante p. 125.</p>

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

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

The court has given careful consideration to this case, running over a period of several months, and it has come to the following conclusions : First, that the will was executed in due form of law. The execution had incident to it all the requisites of our statute. In fact, I may say that there was no serious contention made in the course of the contest that this was not so.

<p>1. Any business, however lawful, which causes annoyance that materially interferes with the ordinary comfort, physically, of human existence is a nuisance that should be restrained.</p> <p>2. The operation of a coke manufacturing plant in such manner that smoke is almost incessantly emitted from, one or more of the .ovens, day and night, and clouds of dust are created by the unceasing activity of a steam bucket dipping up and dumping down soft coal and coke, both day and night, materially interferes with the comfort of human existence in the neighborhood1, and is a nuisance as to owners or occupiers of property in the neighborhood.</p> <p>3. The operation: of a coke manufacturing plant in such manner as to emit fumes and vapors which, under certain conditions of the atmosphere, caused such an unpleasant odor that those residing in the neighborhood felt constrained to keep their windows closed is a nuisance, and should be enjoined at the instance of owners or occupiers of property in the neighborhood.</p> <p>4. Where -a bill to enjoin a nuisance alleged that loud and disturbing noises were caused by the operation of a particular machine, but it also contained a prayer for general relief, and the proof for both parties covered all noises caused by the operation of defendant’s plant, they would all be given consideration.</p> <p>5. Temporary inconvenience from noises caused by an occupier or owner of land in the execution of lawful works in the ordinary use of the land is not ground for an injunction.</p> <p>6. The operation of a coke manufacturing plant in such manner as to cause noises day and night, which disturbed and deprived1 those living in the neighborhood of their sleep, was a nuisance, and the manufacturer would be enjoined fromi so operating has plant during the night time.</p> <p>7. Things offensive to persons generally are a nuisance, although not unpleasant or disagreeable to some persons because of their habits and occupations.</p> <p>8. The right to relief against a private nuisance cannot be defeated by partially abating the nuisance pending a suit for relief.</p> <p>9. Parties entitled to an injunction against a nuisance will not be left to their remedy at law for damages.</p>

<p>On petition to vacate final decree of divorce.</p>

<p>A desertion can only be regarded as continued within the meaning of section 31 of the Divorce act (P. L. 1907 p. If88) if the deserting party shall have been under restraint either by due process of law or his voluntary act; insanity not being a voluntary act, but an affliction regarded as an act of God, incarceration, by reason of insanity, does not fall within the letter or the spirit of the section.</p>

<p>On application for decree upon bill to foreclose the right to redeem land sold for taxes.</p>

<p>On application for costs and counsel fee to be taxed against defendant.</p>

<p>1. Where certain, contractors’ rights of passage over a street extension, which the town was about to vacate, were only those of passage over a highway common to the public, and the injury to them, iu legal contemplation was not different in kind from that which every other citizen sustained, they were not entitled' to sue to enjoin the vacation of such street.</p> <p>2. Harrison city charter, section 56 (P. L. 18T8 p. 3.90), authorizes the city council by ordinance to lay out, alter, or vacate any street then or thereafter laid out, and to take and appropriate for such purpose any streets or real estate, on making compensation, to any owner or ¡owners as thereinafter provided. Section 59 defines the method of ascertaining and making compensation ini case of the taking of land's ¡or real estate for opening, altering, widening, or straightening streets, not including vacation.—Held, that the town had power to vacate streets without affording compensation for injury to lands alleged to have been injured thereby, since the vacation constitutes only the release of a public right or easement over the lands.</p> <p>3. Where an ordinance providing for the vacation of an extension of 0. street expressly declared that the vacation was made subject to an agreement by the prior owners of adjoining lands, including complainant, that the extension should be open for their use, whether the ordinance, if passed, would release or destroy the rights of the parties under the agreement as against each ¡other, was a legal question, which must first be determined by the courts, and could not be determined on an application for an injunction to restrain the passage of the proposed ordinance.</p> <p>4. A court of equity will not enjoin the passage of ordinances which are within the scope of the powers of the municipality.</p> <p>5. Where a city ordinance vacating a street extension is alleged to be invalid because of fraud, or passed in the interest of private concerns, and to constitute an abuse of legislative discretion, the remedy of persons suffering no injury to private property is by eertiarari after the ordinance is passed, and not by injunction against its passage.</p>

<p>1. Where, in a suit to enforce vendor’s lien, it was admitted that payment of the purchase-money, though recited in the deed, was not made at the delivery of the deed, the burden of proving payment subsequent the'reto was on defendant.</p> <p>2. Evidence, in a suit to foreclose vendor’s lien, held not to show that the vendee, subsequent to the delivery of the deed, made a payment to the vendor.</p> <p>3. Where an attorney representing a vendee went to the home of the vendor, an old woman, and drafted an agreement of sale, the agreement providing for the execution by the vendee of a mortgage to secure the purchase-money, and the attorney undertook to represent the interests of the vendor in securing the mortgage, he should have, upon the execution of the deed, seen that her interests were protected, and that the mortgage was delivered.</p>

<p>1. Under act of April 20th, 1906 (4 Gomp. Stat. 1910 p. 4686 § 35), providing that any purchaser of real estate at any public sale, with certain exceptions, shall be relieved from his bid if he shall satisfy the court of the existence of any substantial defect in or cloud upon the title rendering it unmarketable, or of the existence of any lien or encumbrance unless a reasonable description of the estate or interest to be sold, and of the defects in title, be inserted in the advertisements and in the conditions of sale, a purchaser is not entitled to be relieved from his bid if the title can be made good at the time of the decree.</p> <p>2. A purchaser at a partition sale was not entitled to be relieved from his bid because of an erroneous description of the premises, .where the description referred to the correct survey which was attached to the decree.</p> <p>3. The act of February 16th, 1891 (P. L. 1891 p. 84), providing that all sales of land made under any order, judgment, or decree of a court shall be confirmed by the court notwithstanding any irregularity in the publication of such sale, provided the officer making the sale shall certify under oath that it was otherwise regular and that the property was sold for a fair price, and the court is satisfied by affidavit that the defect was not injurious to the parties in interest, applies to sales made after its passage, notwithstanding the failure or omission of the commission to include it in the compiled statutes.</p> <p>4. Where the final decree in a partition suit expressly directed that the deed delivered pursuant to the sale thereunder should be a perpetual bar, both in law and in equity, against all the parties, the estates in curtesy of two defendants were thereby cut off, and the purchaser could not have relief from his bid because of the existence of such estates, especially where such defendants offered to execute releases of their interest without further consideration.</p> <p>o. That a decree in a partition suit did not specially direct the sale of the estates by the curtesy initiate of certain defendants did not entitle the purchaser to relief from his bid, since the statutes requiring such special directions do not apply to inchoate but only to completed estates.</p> <p>6. Under the act of April 20th, 1906 (4 Gomp. Stat. 1910 p. 4686 § 35), providing that any purchaser of real estate, at any public sale with certain exceptions, shall be entitled to be relieved from his bid if, before delivery of the deed, he shall satisfy the court of the existence of any substantial defect in or cloud upon the title rendering it unmarketable, or of the existence of any lien or encumbrance, unless a reasonable description' of the estate or interest to be sold, and of the defects in title and liens or encumbrances with the approximate amount thereof, be inserted in the notices and advertisements required by law and in the conditions of sale, where the decree in a partition suit and the notices and advertisements of sale stated that a mortgage in a specified amount was a lien on the premises, such advertisement of sale was read by the master at the sale in announcing the conditions of sale, and the purchaser signed the conditions of sale to which a copy of the advertisement was annexed, and received the master’s receipt, both of which stated the price as the full amount bid, the purchaser was not entitled to be relieved from his contract with the master because of conversations with the complainants and one of the defendants, who also owned the mortgage, from which he was led to believe that the land was to be sold free from the mortgage, or that the mortgage was to be paid out of the purchase-price, whether or not he was entitled to relief as against the complainant and such defendant.</p>

<p>1. An action on notes will not be temporarily enjoined on the ground that it involves a partnership transaction where, from the affidavits for and against the preliminary injunction, it is doubtful whether the co-partnership exists, and it appears that the notes were special transactions not relating to the partnership affairs.</p> <p>2. On a bill to enjoin an action at law on the theory that the action arose out of a partnership demand, and to require an accounting between the parties, where the evidence establishes a joint adventure the parties will be decreed an accounting, though the bill specifically alleges the existence of a partnership.</p> <p>3. In a suit to enjoin the prosecution of an action on notes given by complainant on the ground that the notes were part of a transaction relating to a joint adventure between the parties, and that complainant was entitled to an accounting before being sued in an action at law, evidence held insufficient to establish the existence of a joint adventure entitling him to an accounting.</p>

<p>On further hearing on application for decree for account.</p>

<p>1. Contemporaneously with the execution of a written lease by the defendant to the complainant, there was also executed a written agreement by the terms of which the landlord, defendant, agreed to convey to the complainant, lessee, at the expiration of the lease, or prior thereto, on request, the property so leased, by deed of warranty free from all exrcumbrance. The landlord, defendant, was unable to perform this contract because the premises are subject to an easement or right of way, and on being requested by the complainant, lessee, to make the conveyance in the way bargained fox, refused, stating that she could only deliver a deed that woixld except ttíe right of way.—Seld, that this refusal did not terminate the lease.</p> <p>2. The natural effect of calling upon the landlord, defendant, to fulfill her agreement to give title free from encumbrance, in case she declares her inability to do so because of the existence of the easement, is to relieve complainant, lessee, from any obligation on his part to perform it. If it is to have any further effect, ,it can only be because of some explicit provision on the subject and such provision is wanting.</p>

<p>1. An executory written agreement to convey land by deed of warranty free from all encumbrances, cannot be reformed on the ground of mutual mistake, and then enforced, on demurrer to a bill for specific performance stating- that the land is subject to a right of way and then charging that through mutual mistake there was an omission to mention in the writing that it was so burdened.</p> <p>2. Wirtts v. Guthrie, 81 N. J. Bq. (11 Buck.) 271, followed.</p> <p>3. The circumstance that the purchaser took a five years’ lease contemporaneously with the agreement of purchase and made an entry under the lease does not amount to a part performance, the lease and agreement of purchaser not being interdependent.</p>

<p>On final hearing on bill for specific performance of contract for sale of land.</p>

<p>On final hearing on bill for injunction to restrain violation of restrictive building covenants.</p>

<p>1. If petitioner knew when she married defendant that she was not then divorced from her former husband, and defendant did not know it, petitioner is not entitled to alimony pendente Ute, unless, after the dissolution of petitioner’s former marriage, the parties showed their consent to the marriage by evidence other than that arising from continual matrimonial repute; but, if at the- time of the marriage the parties believed they could be lawfully married, and lived together in that belief, it may be inferred from their continuous living tpgether as husband and wife that they consented to the marriage after the removal of the legal obstacle thereto by the wife’s divorce from her former husband.</p> <p>2. If a former marriage of the wife had not been dissolved when the parties to a divorce suit were married, and it is not shown that the parties consented to marriage after the former marriage was dissolved, alimony pendente Ute should not be awarded to the wife.</p> <p>3. A wife seeking alimony pending a divorce suit has the burden of showing the existence of the marriage relation; and if her former marriage, existing when she was married to defendant, had been subsequently dissolved, she has the burden of showing that there was an interchange of consent to marriage after such dissolution.</p> <p>4. On petition by the wife for alimony pendente Ute, evidence held insufficient to show that the wife believed when she married defendant that her divorce from her former husband had been granted.</p>

<p>1. A mortgage which is not supported by a consideration was void in the hands of either the mortgagee or his assignee, since the assignee would take subject to existing defences of the_ mortgagor.</p> <p>2. A mortgage to a straw mortgagee without consideration, but delivered by the mortgagor to her own agent for sale for an amount less than the secured obligation, was usurious as to a purchaser for such lesser amount from the agent without inquiry.</p> <p>3. By purchasing from mortgagor’s agent at a discount a mortgage executed to a straw mortgagee without consideration, without making inquiry as to the nature of the transaction, the purchaser became charged with knowledge of the usury in the mortgage, so that mortgagor could set up that defence in a foreclosure action by the purchaser.</p> <p>4. Credit should be allowed the debtor only for the amount of illegal interest paid under a usurious contract and not for all of the interest paid.</p>

On final bearing on petition and cross-petition for divorce? Petitioner seeks a divorce against his wife for desertion. The petitioner alleges that his wife deserted him by permanently leaving his hoine December 10th, 1908, and that the desertion has been willful, continued and obstinate for more than two years preceding the. commencement of this suit against her. The petition was filed April 6th, 1912.

<p>On final bearing on bill to enjoin sale -under execution.</p>

<p>On demurrer to bill for specific performance for sale of land.</p>

<p>On bill for partition. Heard on demurrer to cross-bill of defendant Ella Beatrice Watkins.</p> <p>The cross-bill of defendant Ella Beatrice Watkins, which has been filed by her in defence of a bill for partition, sets forth, in substance, that she is the equitable owner of the real estate which the bill seeks to have partitioned, by reason of a parol antenuptial agreement which was made between her and her husband, whereby it was agreed that in consideration of her marrying him he would leave his entire estate to her by will at his death; that the real estate described in the bill was owned by her husband at the time of the marriage and the legal title remained in him until his death; that after her marriage her husband attempted to carry out and fulfill his part of the agreement and for that purpose in his own handwriting wrote what purported' to be his will and signed it before a subscribing witness, and therein devised and bequeathed his entire estate to cross-complainant; that the will failed in law because not executed in accordance witli onr statute: that the will was an attempted performance by her husband of the parol antenuptial agreement and in equity conferred upon cross-complainant the title to the real estate sought to.be partitioned.</p> <p>The heirs-at-law of cross-complainant’s husband, as owners of the legal title, have demurred to the cross-bill and have set up the statute of frauds as a bar to the claim made by the cross-bill.</p>

<p>1. Under 1 Comp. Btat. 1910 p. 106 § 6, providing that every arbitrator shall take an oath to faithfully and fairly hear the cause and make an award, the failure of the arbitrator to be sworn before proceeding, and to proceed without giving a hearing- to the parties, was fatal, whether the arbitration was made as a rule of court or not.</p> <p>2. The parties to an arbitration are entitled to notice of the time and place of hearing, irrespective of statutory requirements, and an award made without an opportunity for a hearing is invalid.</p> <p>3. In a suit for specific performance of an award of arbitrators determining the price to be paid by a lessee upon purchasing, the bill will not be held to await another award upon determining that the award made was invalid for want of a hearing by the arbitrators, &c.</p>

<p>On final hearing on bill to reform contract.</p>

<p>On final hearing on bill for divorce from bed and board for extreme cruelty.</p>

<p>On final hearing on hill to set aside certain contracts.</p>

<p>1. Testator gave the income of one-third of his estate to his daughter L. for life, the income of another third to his son F. for life, and the remaining third he devised absolutely to his daughter E. on her attaining the age of twenty-four; the executors, also named as trustees, being-directed to lease or sell the property in the meantime as might be necessary and pay the income to the beneficiaries quarterly.—Held, .that, testator not having devised the remainder of the estate devised to F. for life, the legal title to such third did not pass to the executors or trustees, but instead descended to testator’s heirs-at-law, subject to be divested by the exercise of the power by the trustees.</p> <p>2. Where, under testator’s will, his son took the right to receive the income of one-third of the estate during his life, also immediate legal title to an undivided one-ninth of the estate because of testator’s failure to dispose of the remainder after his life estate in an undivided third, the son’s equitable life estate to the extent of one-third thereof merged in the remainder to the extent of one-ninth thereof immediately on testator’s death, and hence such ninth was subject to execution by the son’s creditors.</p> <p>3. A trustee may not assert a legal title by adverse possession against the cestui que trust, the trustee’s title being that of the cestui que trust.</p> <p>4. Where devisees held property as tenants in common, one of them could not claim adversely against one who claimed an interest in the share of one of such cotenants purchased at an execution sale, under the rule that one cotenant, in the absence of ouster, cannot assert title by adverse possession against another.</p>

<p>On final hearing on bill, answer, replication and proofs.</p> <p>The facts presented in this ease are substantially the same as those dealt with by Vice-Chancellor Stevenson in the case of Pieres v. Old Dominion Copper Mining and Smelling Co., 67 N. J. Eq. (1 Robb.) 399. The Old Dominion Copper Mining and Smelting Company, the defendant in this suit, was organized under the laws of this state on July 8th, 1895. Its original authorized capital stock was $3,750,000. This was afterwards increased to $5,000,000, of which shares of the aggregate par value of $4,050,000 were issued and outstanding at the time of the filing of the bill. The original issue of stock was made for the purpose of purchasing a mining property in Arizona, which the company now owns. The transaction was promoted by Albert S. Bigelow and Leonard Lewisohn, who, as was alleged, made a secret profit in tire promotion scheme which made them liable to the company for either a large block of stock or a large amount of illegal profits and damages received by them in the course of the promotion transactions.</p> <p>The control of the company appeal's at that time to have been in Bigelow and his friends.</p> <p>In 1902, the control of the company became vested in the persons who controlled its affairs at the time of the filing of the bill herein; on October 7th, 1902, the defendant corporation instituted two suits in equity in the supreme court of the State of Massachusetts against the said Bigelow, the first for an accounting for one hundred thousand shares of the capital of the defendant company received by him as undisclosed promoter’s profits on the sale of the said mining properties to the defendant, with an alternative prayer for damages by reason thereof, and the second to obtain a rescission of a sale made by Bigelow and Lewisohn of what ivas denominated as outside properties, together with a return to the defendant of thirty thousand shares of its capital stock issued therefor, with a like alternative praj^er for damages suffered by the company thereby.</p> <p>Similar suits were instituted against Lewisolm in tlie Federal jurisdiction. Demurrers to the Lewisohn suits were allowed and the allowance sustained on appeal and the bills dismissed. 148 Fed. Rep. 1020.</p> <p>. Such proceedings were afterwards had in the Bigelow suits that final decrees were entered therein against him as follows: In the first suit there was a decree against him for $480,000, with interest from September 18th, 1895, amounting at the date of the decree to $832,160, with costs; and in the second suit for $700,000, with interest from September 18th, 1895, aggregating $1,213,566.67, besides costs. These decrees were affirmed by the supreme court of Massachusetts, on appeal (203 Mass. 159), and a further appeal to the supreme court of the United States was dismissed upon tlie ground that no federal question was found in the case. 225 U. S. 111. From time to time payments have been made on account of these decrees, which payments aggregated, on August 26th, 1913, $1,933,565.60. This fund is invested partly in securities and partly in the form of loans.</p> <p>In October, 1903, a plan was formulated by the persons who had control of the defendant corporation, to purchase a mining property in Arizona known as the United Globe Mines, and to consolidate it with the defendant corporation as provided in exhibits A (page 379), B (page 379) and G (page 382). This plan was enjoined by this court on January 12th, 1904, in a suit known as the Elliott suit. Beyond tlie fact that there was such a plan and such a litigation I find nothing in the circumstances that throws any light upon the present controversy. ’</p> <p>This litigation arises out of circumstances which begin with an agreement dated December 30th, 1903, made between stockholders of the defendant corporation, stockholders of the United Globe Mines and F. S. Moseley & Company, of Boston, the assenting stockholders evidencing their assent by signing their names to the agreement. The agreement provided that the Old Dominion stockholders should cause a corporation to be organized under the laws of the State of Maine with a capital stock of three hundred and fifty, thousand shares of the par value of $25 each, making a capital stock of $8,750,000, and authorized E. S. Moseley & Company to exchange stock of the assenting stockholders in the Old Dominion company for stock in the Maine company on the basis .of share for share, provided that such exchange should not be made unless two-thirds in interest of all the outstanding stockholders of the Old Dominion company should assent thereto, and so exchange their stock;, nor unless the whole stock of the United Globe Mines and $350,-000 in cash should also be acquired prior thereto or simultaneously therewith by the Maine company. The Globe stockholders authorized Moseley & Company to purchase for their account one hundred and thirty-eight thousand shares of the Maine company stock, and agreed to pay therefor by the delivery to Moseley & Company of the whole of the outstanding stock of the Globe company and the sum of $350,000 in cash. This agreement was assented to by all the stockholders of the United Globe Mines and by over two-thirds of the stockholders of the defendant corporation, the result, being that the Maine corporation, whose creation is provided for in the agreement, is now the owner of all the shares oí the United Globe corporation and of one hundred and fifty-five thousand two hundred and forty-five shares of the defendant corporation, leaving outstanding, and in the hands of private stockholders, six thousand seven hundred and fifty-five shares, of which the complainant owns three thousand and fifty-six shares, purchased by him in October, 1908, or over one-half of the shares which, did not assent. The shares of the defendant, which belong to the Maine corporation, stand on the defendant’s books in the names of Charles S. Smith and D. Blakeley Hoar, as trustees, and any dividends which might be declared by the defendant on the shares held by the said trustees would be payable to them. This trust is evidenced by certain agreements— exhibit G (page 398), exhibit II (page 403), exhibit I (page 40?).</p> <p>The trustees have issued certificates signed by themselves by which they certify that the holder thereof is entitled to shares in the trust known as the Old Dominion Trust) created by the agreements just mentioned, which trust certificates are transferable only in writing on the books of the trustees by the shareholder in person, or by bis authorized attorney, and upon the surrender of the certificate therefor. The complainant, Hyams, is the holder and. owner of one of these certificates for one hundred shares in the Old Dominion Trust. It is dated November 2d, 1907.</p> <p>The agreement of December 30th, 1903, provides in a general way for the division oE the properties of the Hnited Globe company, and the defendant, for the purposes of the agreement, into two classes by paragraphs 4, 5 and 6 thereof, and for the division pro rata among the stockholders of the respective companies of such of the assets as were intended to be segregated by that agreement, and the agreement provides that the Maine company shall make provision therefor by by-laws or agreements, or both, and that so far as relates to the Old Dominion interest, it shall provide that the net proceeds of such assets shall be taken to be the surplus from the proceeds of such assets remaining after deducting therefrom all debts and liquidated claims of the Old Dominion company incurred prior to January 1st, 1904, otherwise than for construction, and which exceed $25,000 in amount, and deducting also the amount required for the payment of counsel fees and incidental expenses of the Old Dominion interest.</p> <p>The next step in the transaction was the organization of the Maine corporation on January 15th, 1904, and the adoption by it on that day of a by-law, wherSby*it agreed to cause the defendant to carry out the terms of the agreement of December 30th, 1903; and a few days later, on January 21st, 1904, the defendant adopted a resolution, a copy of which is found in the bill of complaint. (Record, page 6.) It is conceded that by that resolution the Bigelow money, together with the other items mentioned therein, were held as a separate fund, apart from other moneys and property of the corpora lion.</p> <p>The defendant company now proposes to pay a dividend of $10 per share out of the assets which were segregated by the resolution of January 21st, 1904. The complainant, as a stockholder, will receive his proportionate share of the fund so to be divided. The fund includes the moneys received on account of the decrees against Bigelow.</p> <p>On October 12th, 1912, the present bill was filed. It prays that the defendant and its officers and directors may be enjoined from declaring as a dividend the whole or an3r portion of the money received by it from the Bigelow decrees, and from recognizing in. any way or doing anjr act in furtherance of the agreements thereto annexed and designated as schedules D, G-, H and I. These axe the agreements to which specific reference has already been made. No attempt was made to declare such a dividend until June 3d, 1913. On that day the board of directors passed the following resolution:</p> <p>“70. Voted that the president and treasurer be and they hereby are authorized to pay a special dividend from the special fund of ten dollars per share, as soon as counsel advises that the same can be paid, or the injunction restraining payment of same is removed.”</p> <p>The directors of the defendant corporation and of the Maine corporation at the time of the filing of the bill herein were each seven in number. Three of them—C. S. Smith, Altmiller and J. V. Smith—were directors of both corporations.</p>

<p>1. The burden of proof of the .“exercise of good faith and reasonable discretion,”'within the meaning of .the statute with respect to a trustee in continuing investments made by a decedent in his lifetime (P. L. 1899 p. 286), is cast upon the trustee, under the peculiar facts in this case.</p> <p>2. In a suit against a trustee (a trust company) for an accounting with respect to losses occasioned to a trust fund in the continuing such investments made by a testatrix in her lifetime, and where it appeared that the trustee, instead of insisting upon cash, accepted from the executors the securities in question, which then were considered by investors generally to be of the first quality, and about a year after the beginning of the trust the market values of such securities began to depreciate, and so continued thereafter to depreciate, until the commencement of this suit, evidence examined, and held that the trustee had not sustained the burden of proof cast upon it by the statute respecting the exercise of a “reasonable discretion,” although there is no lack of the exercise of “good faith.”</p> <p>3. There are probably no securities in which people invest their money which can be said to be safe at all events and under all circumstances. There is always some element of chance which time may develop. When, however, a security comes within the region of doubt it is the part of prudence and discretion to eliminate it from a trust fund at the earliest possible moment, and defendant trustee having neglected to do so, in this case, is liable to the complainant upon this ground.</p>

<p>On final hearing on bill and answers.</p>

<p>1. By the residuary clause of her will the testatrix after giving five-sixteenths of the residue to her son, Archer Gifford Plume, and five-sixteenths thereof to his daughter, Mary Josephine Lockwood, gave the remaining six-sixteenths thereof to trustees upon certain trusts therein declared, and then divided this trust fund into three parts, and disposed of two-thirds of said remaining six-sixteenths so given to trustees as aforesaid in manner following: “And I do further order and direct that upon my said grandson John I. Plume attaining the age of twenty-one 3rears the said trustees or the survivor of them shall pay to him out of the remaining two-thirds of said equal undivided six-sixteenths parts of said residue of my estate so by them held in trust the sum of $4,000, but if nw. said grandson shall not live to that age, then to pay the whole income arising from said two-'thirds of said equal undivided six-sixteenths parts of said residue of my estate to my said son Samuel W., and upon his death the said two-thirds, or if the same shall have been sold, the proceeds thereof, to convey to or pay to my three children Mary Josephine Lockwood, Sarah Virginia and Archer Virginia Plume, the same to be held or equally divided between them share and share alike.”—Held, that the foregoing quoted clause created a remainder in testatrix’s said three children, Mary Josephine Lockwood, Sarah Virginia Tugman and Archer Gifford Plume, therein named, which vested upon the death of the testatrix, and that the fund in question be divided into three parts, giving to Archer Gifford Plume, the representatives of Mary Josephine Lockwood, and the representative of Sarah Virginia Tugman, each one-third.</p> <p>2. Vested and contingent remainders defined and distinguished.</p> <p>3. Where the real estate of a testatrix has been in fact turned into personalty under a power of sale contained in the will, the result as far as the distribution of the estate is concerned, is the same as if the will contained a direction to convert.</p> <p>4. A power of sale as distinguished from a trust for sale does not operate as a conversion of property. The direction to sell must be imperative in order to operate as a conversion, but if it be exercised the property will be converted according to law unless there be a trust declared of the proceeds sufficient to reconvert it.</p> <p>5. It is a physical change of land to money, effected by a valid testamentary power to perform an act evidently in the contemplation of the testatrix, which establishes the rule upon the foundation of reason. The estate will therefore devolve under the provisions of the will as personalty.</p>

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

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

<p>1. Where the parties to an agreement stipulated at the time it was made that it was to have no binding effect upon them, such an agreement, though executed, was of no force and effect at law or in equity.</p> <p>2. Parol evidence is admissible in equity to show for what purpose a written agreement to repurchase land was executed.</p>

<p>A bill whereby a stockholder of a corporation sought injunctive relief under general equity jurisdiction to preserve the corporate existence, and also sought the appointment of a receiver under the statute relating to insolvent corporations, is multifarious, the two proceedings being inconsistent.</p>

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

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

<p>On motion to dismiss petition to vacate decree of divorce.</p>

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

<p>On motion fox pxeliminary injunction.</p>

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

<p>Evidence held insufficient in a suit for divorce on the ground of adultery, brought by a husband against his wife.</p>

<p>On appeal from the orphans court of Hunterdon count)".</p>

<p>1. On an appeal to this court taken from an order of the orphans court dismissing a petition to vacate a decree denying probate of a purported will, and to set aside letters of administration granted by the surrogate of the county to entertain the subject-matter, because, as was alleged, the decedent wms a non-resident, the jurisdiction exercised by this court is strictly appellate, and this court is without authority to impose upon the defeated suitor counsel fees as part of the costs and expenses, unless authorized by statute or the settled practice of the court.</p> <p>2. There is no such statute or settled practice permitting it in this court.</p> <p>3. The costs which the prevailing party, on an appeal of this kind, is entitled to are those specifically provided for in the fee bill, and are not to be increased or diminished at the discretion of the court.</p> <p>4. The one hundred and ninety-sixth section of the Orphans Court act (Comp. Btat. p. 8884), providing that "in all litigated suits in the orphans court the court shall adjudge and direct which party shall pay the costs and expenses of such litigation, and shall have the power to apportion and determine the costs and expenses to be paid by either party,” is not available on this application.</p> <p>5. The proceeding in the orphans court appealed from was a “litigated suit” within the meaning of the statute, and counsel should have applied to that court to exercise its discretion in that behalf.</p>

<p>1. Evidence on the probate of a will held to show that the will was properly executed; that the testatrix was competent to make it, and that she executed it with full knowledge of its contents and with an appreciation of its legal effect.</p> <p>2. Evidence, in a proceeding for the probate of a will, held insufficient to show that its execution was procured by undue influence.</p> <p>3. The relation between testatrix, a widow of about fifty years of age, suffering from a fatal illness, and her sister, the beneficiary, with whom she lived, testatrix being free to visit other relatives, some of whom were at enmity with the beneficiary, who nursed and ministered to her, was not a confidential relation such as would, with other slight circumstances, create a presumption of undue influence.</p> <p>4. Where testatrix’s sister, with whom she made her home, nursed and fared for her during her illness, while her daughter, who was married and resided across the continent, though affectionate, was lax, if not indifferent, about writing, the testatrix’s will leaving her property, consisting of a house and lot, to the sister was not an inofficious testament.</p> <p>5. A will cannot be held invalid simply because it seems unjust, though that would be a formidable circumstance in showing its invalidity for some other reason.</p> <p>G. That testatrix’s sister, who was made the sole beneficiary, did not telegraph testatrix’s daughter of her death until the next day, and said nothing about the will,- which was not offered for probate for nearly two months, was not sufficient to cast the burden of proof as to undue influence on the beneficiary.</p> <p>V. Where the existence of a confidential relation between the testatrix and beneficiary with other circumstances raises a presumption of undue influence, the denial of the beneficiary, if otherwise credible and not challenged by other facts, is sufficient to overcome the presumption.</p> <p>8. Influence upon a testatrix arising from kindness, love and affectionate devotion do not constitute undue influence, nor are they evidence of undue influence, or even a suspicious circumstance, in the absence of positive proof.</p> <p>9. The burden of proving undue influence upon a testatrix rests upon those asserting it, and mere influence, with opportunity and motive to exert it, will not suffice, but it must appear directly, or by justifiable inference, that the influence was exerted and operated to dominate the testatrix and cause her to make a will she would not otherwise have made.</p> <p>10. Under 3 Comp. 8tat. 1910 p. 3885 § 197, authorizing the court to order the payment of the costs of an unsuccessful contest against the probate of a will out of the estate, if the contestant had reasonable cause for contest, where an order admitting a will to probate was reversed on appeal to the orphans court, the allowance by that court of the contestant’s counsel fees and costs will be affirmed upon reversal of -the judgment of the orphans court, as the judgment of the orphans court showed that the contestant had reasonable cause for the contest.</p>

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

<p>By a testamentary gift of residuary real and personal estate, in mass, to the testator’s wife “for her sole use and benefit for and during her lifetime” the beneficiary takes only a life interest in the personalty, and this is so even though the will contains no gift over after her death.</p>

<p>A party who seeks to foreclose a mortgage given for future advances must prove that such advances were in fact made, and that they remain unpaid, in order to entitle him to the relief which he seeks.</p>

<p>On appeal from a decree of the court of chancery advised by Yice-Chancellor Howell, whose opinion is reported mie ¶. 155.</p>

<p>1. The statute relating to conditional sales of personal property (P. L. 1889 p. 421, as amended by P. L. 1895 p. 302) provides that all contracts of conditional sale of personal property shall be acknowledged or proved and recorded as required by the statute.—Held, that the word “contract” is not to be taken in its technical legal sense of a consummated agreement enforceable by the law, and that a written order for goods subject to the vendor appellant’s approval signed by the vendee, witnessed by the vendor appellant’s salesman, accepted a few days later by the vendor appellant, the salesman as subscribing witness proving the signature of the vendee, and the accepted order being duly recorded, constituted a sufficient contract within the statute.</p> <p>2. The statute does not require in so many words that the contract of conditional sale shall be in writing, but this must be implied since it would be impossible to acknowledge or prove a mere oral contract, and it would be unusual if not impossible to record such a contract as our statute directs.’</p> <p>3- The question whether the proof was or was not by a subscribing witness is purely a question of fact, and where his uncontradicted testimony is that he put his signature on the paper at the time the contract was made, on the 8th of September (the date of the order) and not on the 19th (the date of acceptance), that the name of the vendor was not on' the paper at the time, that he only witnessed the signature of the vendee, that the line from the word “witness” down toward his name was put there at the same time as his signature, such proof suffices to show that he is a subscribing witness.</p> <p>4. Whether the vendee signed and delivered the contract as her voluntary act and deed is also a question of fact, and there is no reason why the subscribing witness may not infer the voluntary character of the act from the facts as well as from a formal acknowledgment. To require the precise words of a formal acknowledgment where the statute does not require acknowledgment but proof, savors of mere form.</p>

<p>1. The act “to compel the determination of claims to real estate in certain cases and to quiet the title to the same” {Comp. 8tat. p. 5399) confers jurisdiction on the court of chancery to award possession of the lands involved in a suit to a defendant who is .found entitled to the same.</p> <p>2. A decree pursuant to said act which determines that a defendant is entitled to possession may be enforced by writ of assistance.</p> <p>3. A decree in a suit under said act that the defendant has an estate in fee-simple absolute in described lands, and that the complainant has no estate or interest therein, involves and includes a determination that the defendant is entitled to possession thereof.</p>

184-. • The bill is filed by the substituted trustee and administrator with the will annexed of Sophia H. B. Blackwell, deceased, for a construction of her will and codicils and for directions in relation to the performance of the trust. So much of the will as is material to the controversy is as follows: “Sixth.

<p>On appeal from a decree of the court of chancery advised by Mr. J. Franklin Fort, as advisory master.</p>

<p>1. In a suit for divorce from bed and board brought by the wife against her husband upon the ground of his extreme cruelty toward her*, where it appeared from the evidence that upon the occasion of such alleged cruelty she had provoked him to sudden anger by accusing him of a crime of a peculiarly revolting nature of which he was innocent, a decree for permanent separation should be denied.</p> <p>2. The principal object sought to be obtained by the court’s decree of separation in suits of the prese'nt character is the reasonable protection of the wife against future probable acts of cruelty, and where the evidence shows that the previous acts of alleged cruelty of the husband were provoked solely by the wife’s voluntary and malicious accusations against him, the necessity for such a decree does not exist.</p>

<p>On cross-appeals from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported, in 81 N. J. Eg. {11 Buck.) 27.</p>

Charles J. Roe, advisory master, who filed the following opinion: The bill in this case is filed for'the purpose of removing a cloud on the title of complainant’s land.

On four appeals from a decree of the court of chancery ad-, vised by Vice-Chancellor Howell, whose opinion is reported ante p. 51S6.

<p>On appeal from a decree of the prerogative court made by the ordinary, whose opinion is reported ante p. S16.</p>

Charles J. Roe, advisory master, who filed the following conclusions: The petition in this cause was filed on December 17th, 1912. The petitioner seeks a divorce from his wife, the defendant, for desertion since the month of August, 1908. This desertion is based solely on the claim that the defendant, although performing all other wifely and motherly duties, refused to her husband, the petitioner, sexual intercourse.

Edward M. Colie, advisory master, who rendered the following opinion: This bill is filed to quiet the title of the complainants to property which they purchased pursuant to the eleventh section of the will of Alexander Maitland, as against the claim of the devisee under the will of Mary ,7. Maitland, the wife of said Alexander Maitland. The tenth and eleventh sections of the will of Alexander Maitland are the provisions of the will particularly important.

<p>On appeal from a decree of tlie court of chancery advised by Vice-Chancellor Backes, whose opinion is reported ante p. 581.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 81 N. J. Eq. (11 Buck,.) 888.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Eméry, whose opinion is reported in 80 N. J. Eq. (10 Buck.) 295, and ante p. 43'.</p>