Volume 84 — New Jersey Equity Reports

<p>On. application for funds in court.</p>

<p>1. A summary hearing on bill and affidavits, and answer, if filed, is a final hearing on the question of the insolvency of a corporation under section 65 of the act concerning corporations (Revision of 1896), amended P. L.-X912 p. 585.</p> <p>2. When a suitor is entitled to relief in respect to the matters concerning which he sues, his motives are immaterial.</p> <p>3. In a suit for the winding up of an insolvent corporation the complainants need not be creditors, provided they are stockholders.</p> <p>4. A corporation having “book assets” of millions, comprised of the capital stocks of other corporations, none of which have paid a dividend for years, and having debts totaling in round numbers a quarter of a million dollars, without any money to pay them, is insolvent.</p>

<p>After decree a bill will not be dismissed even with consent of all the parties.</p>

<p>1. An information by the attorney-general upon the relation of certain parties, to set aside a riparian grant on the ground that the grantee was not the owner of the lands constituting the ripa on which the grant was based, is an appeal to a purely legal jurisdiction of the court of chancery — one that existed in the chancellor himself before the institution of that court.</p> <p>2. An issue directed by this court to be tried by a jury may consist of a series of specific questions, and the propositions to be decided by the jury may be submitted to them in writing for their answer.</p> <p>3. The court of chancery is prone to submit a question of legal title to a jury even in a case in which it is not obliged to do so.</p> <p>4. On an information making an attack upon a grant of the riparian commissioners, a feigned issue in form to try the question whether the state is entitled to the possession of certain lands as against the defendant who is in possession, would give the defendant an opportunity to offer the riparian grant under which he claims, which would settle the question of the right to possession unless an objection to the validity of the grant should appear upon its face; but, as the question of fact to be determined is as to who owned the shore front at the time of making the grant, the form of the question to be submitted should be as to whether the defendant’s grantor was the owner of ^ny of the lands (which she made the basis of her application for a grant of lands under water in front of them), at the time of the riparian grant.</p> <p>5. A feigned issue will be framed with the defendants ■ as plaintiffs. The form of the issue, and practice thereon, outlined.</p>

<p>1. A decree in a judgment creditor’s suit against a chattel mortgagee, who took possession óf the mortgaged chattels in 1907 for an accounting, in which the right to such relief was based on an execution levy made in 1911, and in which no claim under any earlier execution was made or set up, dismissing the bill on the ground that, as against the complainants claiming under such execution, the defendants were entitled to hold as owners and not as mortgagees in possession, and that complainants, under such levy, had no right to redeem, did not bar a subsequent suit for an accounting based on a levy made in 1904, although the laches or failure of the complainant to set up the claim under the earlier execution in the former suit might be a defence, since the second suit, though brought for the same kind of relief, was not based on the same right or title as the title on which the former suit was based.</p> <p>2. A plea of res adjudicata must show that the same point at issue on the present bill was at issue on the former bill, and that the title to relief is the same in the second bill as in the first.</p>

<p>1. The rule formulated in Doremus v. Paterson, 73 N. J. Eq. 476; 81 N. J. Eq. 27, and 82 N. J. Eq. 640, followed in ascertaining the damages sustained by the complainants in respect to their riparian lands bordering on the Passaic river by reason of its pollution by the sewage of that city.</p> <p>2. A property is riparian when, in a conveyance thereof, the premises are described as beginning “at the Passaic river,” which in legal parlance means at the medium filum aquas and, by the course of one chain from the road, it is carried back to the river as it used to flow.</p> <p>3. A property is also riparian when, in a conveyance thereof, the premises are described as running “thence (5) on the east side of the lake road, one hundred and ninety-one feet to the lands of Peter P. Kip; thence (6) easterly along said lines, fifty-five feet to Dundee lake; thence (7) southerly along the same to a point,” &c., Dundee lake, so called, being a part of the Passaic river, whose waters are widened at that point by the Dundee dam. Such a description carries the title to the medium filum aquae, if the grantor owns so far.</p> <p>4. A property is also riparian when, in a conveyance of the land, the deed describes the third course as running along the northerly line of Mary Ann Van Saun “to the easterly line of the Passaic river and thence (4) northerly along the easterly line of the Passaic river, the several courses thereof, eight chains and thirty-two links to the place of beginning,” the place of beginning being described as “a point in the easterly-bank of the Passaic river, where the same is intersected by the division line between William P. Vreeland (the grantor) and Peter H. Doremus,” and there being nothing apparent tending to indicate an intention to retain anything, the stream to its centre will be held by legal presumption to be embraced.</p>

<p>1. Before a creditor can in this court avail himself of the provisions of the Bulk Sales act (P. L. 1914 p. 59), which annuls a certain class of sales as against the vendor’s creditors, unless certain prescribed steps are taken, the creditor must show that he has acquired by judgment and execution, or otherwise, a lien upon the vendor’s goods.</p> <p>2. A bill by a creditor of the vendor, against the buyer and the buyer’s vendee, is not maintainable, which alleges that the buyer had disposed of all the goods sold to him, and prays that so much of its price in the hands of the buyer’s vendee as will satisfy complainant’s claim be decreed to be paid over to the complainant.</p>

<p>1. That B. misled and induced ignorant and inexperienced women to sign a mortgage intended to secure his own debt, to a third person, which they did not understand, and would not have executed had they been properly advised, B. himself taking their acknowledgment and being bound, as the officer taking the acknowledgment, to make explanation to them suited to their limited intelligence, is ground for declaring it void in his hands.</p> <p>2. A mortgage is invalid in the hands of an assignee, if there be no consideration for the mortgage or assignment.</p> <p>3. Trusts may be raised against those participating in indefensible transactions, but not in their favor.</p>

<p>1. Under 2 Oomp. Btat. 1910 p. 201/8 § 16,' a devise to trustees for the use of the testator’s widow does not of itself affect her right of doVer.</p> <p>2. A devise of the exclusive use of land for an unlimited term is a devise in fee.</p> <p>3. A devise of the' exclusive use of land for the life of the beneficiary creates a legal estate in the land.</p> <p>4. A devise of the use of the testator’s house and premises to his wife and children as a residence until sold by the executors, and a devise of the residue of the estate to the executors in trust to pay taxes, assessments, and water rents, and keep the property in repair, gives to the wife and children the right to occupy the premises until a sale by the executors as trustees.</p> <p>5. Whether a widow can accept provisions for her benefit in her husband’s will, and also receive dower, depends on the intention of the testator, ascertained by considering the entire will in the light of the circumstances and conditions surrounding him.</p> <p>6. An antenuptial agreement executed in a foreign country deprived the wife, under the law of that country, of any dower right. The parties after marriage moved to New Jersey, and the husband acquired real estate there and was domiciled there at the execution of his will and his death. By his will he recognized the obligations imposed by him by the antenuptial agreement, and in addition gave to the wife the right to occupy his residence until a sale ,by the trustees. He disposed of other property to his children. No reference to any dower right to the wife was made in the will. — Beld, that, though the husband erroneously believed that the antenuptial agreement barred the wife of her dower right to real estate in New Jersey, the will, when considered as a whole in the light of the circumstances, made provisions for her in lieu of dower, and her acceptance of the provisions barred her dower right.</p> <p>7. The inaction of a widow in failing for many years to demand her dower right, but accepting, in lieu thereof, the provisions made for her by her husband’s will, does not amount to a waiver or forfeiture by her of her dower right, but may be considered with the circumstances in determining whether the will made provisions for her in lieu of dower.</p>

<p>1. A conveyance by an owner of land to his wife, without consideration, is void as against one who at the time the conveyance was made was working for the owner, and who subsequently recovered a judgment for such services, part of which judgment was for money earned at the time of the conveyance, but not yet payable, and a small part of which was then due.</p> <p>2. In a suit to set aside a conveyance by a husband to his wife as a fraud upon creditors, evidence held to show that the property was originally purchased with the husband’s money, and not with that of the wife, as alleged in the answer.</p> <p>3. The fact that the recorded deeds show that a husband conveyed property to an intermediary for the consideration of one dollar, in trust to be conveyed to the grantor’s wife, and that the intermediary conveyed the property to the wife, also for the consideration of one dollar, does not put a grantee from the wife upon inquiry as to the validity of the conveyance, so as to render its title void against a creditor of the husband, since a voluntary conveyance by the husband to the wife is valid as to everyone except his creditors.</p>

<p>1. That a corporate agent, in carrying out specific instructions of the corporation as to the sale of real property, appeared to be clothed with a more general authority than he had or exercised, will not mate a subsequent contract entered into by such agent in excess of his actual authority enforceable against the corporation on the theory that it had held him out as having extensive powers.</p> <p>2. The treasurer of a corporation cannot, by virtue of his office, bind the corporation by a contract for the sale of land, even though the corporation was engaged in the real estate business.</p> <p>3. Where the treasurer of a corporation, who entered into a contract for the sale of land, explained to the purchaser that it would have to be ratified by the board of directors, but the purchaser did not understand him, that fact, where the treasurer honestly thought he understood, does not entitle the purchaser to enforce the contract.</p>

On bill to compel -directors of a corporation to account for secret profits and for dividends unlawfully declared. On hearing on demurrer to the bill.

<p>On final hearing on bill for specific performance.</p>

Complainant seeks a decree for the specific performance of a contract wherein defendant, Eoberta Connelly, as executrix and trustee of her deceased husband’s will, agreed to convey to complainant certain real estate in Atlantic City.

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

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

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

<p>1. The public is a party to all divorce suits. It does not ordinarily appear by counsel, and when without counsel does not plead. This party, when thus represented by what is called the conscience of the court, never loses a right by laches; a maxim in these suits, therefore, is that a cause is never concluded as against the chancellor.</p> <p>2. Judgment by default is not favored in divorce suits, and the courts are especially inclined to interpose by opening and setting aside such a judgment and giving defendant a das' in court, so that the merits of his defence may be passed upon under such terms and conditions as to the court may seem proper.</p> <p>3. Divorce- cases are not causes in which the usual tests of surprise and merits are required to be shown in order to secure the opening of a default with leave to plead. They are not cases which concerní alone the parties, between whom the court is impartial and indifferent, but are cases to which the state is a party, whose interest the court at all times will save and protect.</p> <p>4. A decree nisi is a conditional divorce, becoming absolute only upon the happening of a prescribed contingency. Such a contingency in our state is the non-showing of cause why the decree should not be made absolute. This does not comprehend ex parte decrees only, but decrees made in litigated cases as well. Opening a default to let in a defence on the merits is quite a different thing than showing cause against making absolute a decree nisi..</p> <p>5. It is the universal practice to open a default in a divorce case, not only when a defence comes out in the evidence, but if, after the evidence is taken, the defendant desires to be heard. A defendant who comes forward and says he desires to defend a case for divorce should be given an opportunity to do so at any moment before the chancellor’s signature is actually affixed to the final decree, except where a lack of good faith on the part of the applicant is apparent, which would he the case if it clearly appeared he did not intend to answer after obtaining the right to do so, — his move being merely for delay, prompted by ulterior motive.</p> <p>6. The court of chancery has the constitutional right to deliberately consider all applications made to it, and there is not discoverable in the Divorce act, which provides for the granting of a decree of divorce nisi, any attempt to divest the court of its inherent equitable power to hold under advisement an application for opening a default beyond the time during which cause could be shown against making such a decree absolute, and which action, in effect, enables the court to suspend the force of the decree pending the ultimate disposition of the matter.</p> <p>7. Default opened upon terms: The decree nisi will be vacated only for the purpose of permitting an answer to be filed, and if defendant should be defeated on the merits then the order vacating will itself be vacated, leaving the decree nisi to stand as of the date of its entry, so that a final decree could be immediately entered, being already due in point of time. An order for this purpose may be taken at once and shall provide that the defendant answer within ten days.</p>

<p>On bill to quiet title. On final hearing on pleadings and proof.</p>

<p>On final hearing.</p>

<p>1. An unrecorded mortgage is of no effect against a purchaser at an execution sale, where the judgment creditor had no knowledge of the mortgage, even though the purchaser did have knowledge of it.</p> <p>2. Where the premises covered by an unrecorded mortgage, which was executed by the owner and his wife, had been sold under an execution against the husband, the mortgagee cannot foreclose and sell the wife’s inchoate right of dower, since that right is not a subject of grant or assignment.</p>

<p>1. Evidence, on objection to'confirmation of a receiver’s sale, and on petition for resale — Held to show that a sale of an insolvent corporations’ plant, free of a mortgage of $80,000 and from several executions, for $30,500, was for a price far below its actual market value.</p> <p>2. Where a receiver of an insolvent corporation, ordered to sell its plant, sold it, free from a mortgage of $80,000, for $30,500, a price far below its actual market value, a bondholders’ committee, which before the sale had worked diligently to bring into a protective scheme all the bondholders, who were numerous and widely scattered, the addresses of a part of whom the receiver would not disclose until too late, and which at the sale, representing more than one-half of the bondholders, offered to bid $5,000 for the property subject to the mortgage, which offer would have enabled the receiver to pay all the corporation’s debts and have saved the bondholders from a sacrifice of seventy-five per cent, of their interest, such committee was entitled, as a matter of right, to an adjournment of the sale, and the sale made would not be confirmed.</p> <p>3. Where a sale is made for a fair price and in good faith, and there is no irregularity, fraud, mistake, or legal surprise, with which the purchaser is or ought to be chargeable, the subsequent offer of a higher price by another bidder is not of itself sufficient reason for refusing confirmation.</p> <p>4. Where a purchaser at a receiver’s sale, free from mortgage and judgment liens, of the plant of an insolvent corporation at a price below its actual market value was fully informed of efforts by the bondholders’ committee to have the sale ordered to be made subject to the mortgage, and of a higher bid by the committee in case of sale subject to the mortgage, made during the sale, would be assumed to have made his bid with notice of the -bondholders’ equities, and subject thereto.</p>

<p>1. The act of an intestate, who had a deposit with a savings fund society, in causing her account to be changed upon its card system, and upon her pass-book, by adding the name of her sister, so that thereafter the account stood in the name of intestate or the sister, in order that the fund or the remainder of it might pass to her sister at her death, without any “donative intention,” i. e., a design presently to part with the ownership of all interest in the money, and her subsequent exclusive possession of the pass-book and absolute control over the fund, was not effective as to a “gift inter vivos,” to sustain which there must be not only a donative intention, but also, in conjunction with it, a complete surrender by the donor of all control over the thing given.</p> <p>2. Such acts were not effective as a testamentary disposition of the deposit, since to effectually dispose of property, to take effect after death, the donor must pursue the course laid down by the statute of wills.</p> <p>3. Upon a bill by an administrator to recover funds in a savings society, deposited by his intestate to a joint account, where there was a decree awarding the fund to him, no costs will be allowed against defendant bank, it being in no way responsible for the litigation.</p>

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

<p>A lease contained a covenant that at the expiration of the term the lessee should have the first refusal of the premises for a further term, and that the lessor would not let the premises to any other person without first giving the lessee the privilege of renewal at the same rental that the lessor could secure from such other person. — Held, that such covenant was not an absolute option entitling the lessee at his election to a new term, but only if the premises were for rent after the expiration of the original term, and hence a sale of the premises by the lessor at the termination of the original term was not a violation of the covenant.</p>

<p>1. A devise to testator’s wife for her support and maintenance and to dispose of as she might deem proper, the estate remaining undisposed of to pass to certain others specifically named, vested in the widow an absolute power of sale, she being entitleed to convey the land for or without a money consideration, and regardless of the result contributing to her maintenance and support.</p> <p>2. A devise of the residue of testator’s estate to his wife for her support and maintenance, and to dispose of as she might deem proper, the estate remaining undisposed of after her death to go to the children of testator’s sisters, vested a fee in the widow, under the rule that where lands are devised in the first instance in language indeterminate as to the quality of the estate from which an estate for life would result by implication, and words adapted to a power of disposal without restriction as to the mode of execution are added, the construction will be that an estate in fee is given.</p>

<p>On petition to discharge a writ of sequestration.</p>

<p>On final hearing.</p>

<p>1. Construction of a will, though asked by the parties in a suit to foreclose a mortgage, being unnecessary to doing full justice under the issues raised by the pleadings, may not be had.</p> <p>2. A., who joined with C. in making a bond for a loan of money, containing an agreement ’to pay charges “on the premises described in the mortgage accompanying this bond,” was charged with notice that C., in making the mortgage, was conveying the fee-simple and covenanting as owner, and so is estopped to set up, against the mortgagee, any remainder interest.</p> <p>3. A title acquired by one after mortgaging to secure a loan, and covenanting as owner in fee, enures to the benefit of the mortgagee.</p> <p>4. The after-acquired title of a mortgagor enures to the benefit of the mortgagee, not only against the mortgagor, but as well against one who, with knowledge of the facts, takes a warranty deed free from encumbrances from the mortgagor.</p>

<p>1. Where a testator makes his will or omits to alter it on the promise of a beneficiary that he will make a certain disposition of the property bequeathed or some part thereof, equity will declare the beneficiary a trustee for the performance of his promise to prevent the statute of wills being used as an instrument of fraud. But to create such a trust in opposition to the terms of the will the testator must communicate his intention to the legatee, the legatee must assent thereto, and the testator must act upon such assent.</p> <p>2. In a suit to establish a trust in property bequeathed by a testator to his brother, evidence — Held sufficient to show that the testator intended that the bequest should be held in trust for a person not named in the will, or that the brother knew of such intention or promised to so hold the bequest.</p>

<p>1. Evidence held to support a conclusion of the orphans court that testator had destroyed the third codicil to his will animo revocandi.</p> <p>2. Where a will is proved to have been executed and to have remained in testator’s custody, or where he had ready access to it, the fact that it cannot be found after his death raises a presumption that he destroyed it animo revocandi.</p> <p>3. Where one will is revoked by another, the revocation is testamentary, and the revocation of the later will revives the former, since the revoking instrument is itself revocable, and does not become final or absolute until the death of testator.</p> <p>4. Testator, in November, 1902, executed a will making a detailed disposition of his entire estate, and in February, 1911, and in December, 1912, executed first and second codicils merely modifying specific parts of the will, and thereafter executed a third codicil revoking the devise in the will to his housekeeper, but in no other way superseding the will, and subsequently withdrew the third codicil from the trust company,where it had been deposited with the will and the first two codicils, and destroyed it ammo revocandi. — Held, that such revocation did not revoke the will and the first two codicils, and that they were entitled to probate.</p>

<p>1. A vendor is entitled to a decree of specific performance, where time of performance is not of the essence of the contract, if he can, at the time of the decree, give a clear title.</p> <p>2. As a general rule, in equity, time is not deemed to be of the essence of the contract unless the parties have so treated it, or it • necessarily follows from the nature and circumstances of the contract.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, whose opinion is reported in 83 N. J. Eq. 564.</p>

J. Eq. 32. This appeal brings rip a decree of the chancellor sustaining a demurrer to an information filed by the attorney-general to enjoin the carrying out of a contract between the state water supply commission and the executors of the Joseph Wharton estate for the acquisition for state purposes of a tract of land at a purchase price of $1,000,000, to be secured by a mortgage on the land so purchased.

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 82 N. J. Eq. 49.</p>

<p>1. If an instrument is to be reformed in equity, all persons to be affected by the reformation must be in court.</p> <p>2. Before equity will reform an instrument upon the ground that through a mutual mistake, it does not express the intention of the parties, the mistake must be shown to have been mutual by dear and convincing evidence, for this remedy will not be granted upon a probability, nor upon a mere preponderance of evidence, but only upon clear proof, amounting to a reasonable certainty, that the mistake was mutual, and that both parties intended to express what does not appear in the writing, or that they intended something different from what is to be implied from the words used.</p>

<p>1. Where an agent, acting for a proposed purchaser of land, knowingly misrepresents the price fixed.by the owner, and thereby induces the purchaser to agree to pay a greater sum than the owner asks or receives, the difference being represented by a mortgage given to the agent, wno agrees to advance the sum secured by it to the owner for the purchaser’s account, which the mortgagor supposed was done, when in fact it was not, nor intended by the agent to be, advanced, but the mortgage retained by him for his own use at the expense and without the knowledge of the mortgagor, a court of equity will not aid the holder in reaping the fruits of such a transaction by a foreclosure of the mortgage.</p> <p>2. The purchaser having paid the full purchase price demanded by the owner, and given the mortgage to the agent upon the representation that it was required to make up the price asked by the owner, which was false, and the holder not having parted with anything for the benefit of the mortgagor, the mortgage has no consideration to support it and cannot be enforced in equity.</p>

<p>1. The court of equity has no jurisdiction over the collection of taxes or municipal assessments in the absence of a specific equity.</p> <p>2. Where a city procures the adjustment of taxes, which are disputed and in arrears, under the “Martin act” (Comp. Stat. p. 5205), the report of the commissioners of adjustment when confirmed is binding on the city and taxpayer, and it becomes the duty of the officer, in whose office the record of taxes remains, to cancel all prior assessments and taxes which are included in the report.</p> <p>3. Where disputed taxes are adjusted, and the city demands and accepts the amount fixed by the commissioners of adjustment, it is thereafter estopped from demanding the payment of taxes levied prior to the adjustment which are included in the adjustment report which has been duly confirmed.</p> <p>4. A purchaser of the property, after the taxes have been so adjusted, and the amount paid, is entitled to rely upon the acts of the city in procuring an adjustment and demanding and accepting the amount of the adjusted taxes as a discharge of the lien of all prior taxes,- and the city is estopped from refusing to cancel such prior taxes, and from attempting to collect them, and equity has jurisdiction to enforce such, estoppel.</p> <p>5. The circuit court judge has power to open and set aside any .reported adjustment upon application, if the report fails to recognize legal principles, or if improvidently confirmed, and to again refer the matter to the commissioners of adjustment, and also to confirm the subsequent report.</p> <p>6. Where the statute requires the confirmed report to be filed with the city clerk and he renders a bill for the taxes as adjusted, according to a report on file in his office, and collects the taxes according to it, he will not be heard to say that no such report was made, beca.use, after eight years, none can be found in his office, for the presumption arising from his statement that it was filed in his office is not overcome by the mere fact that he cannot now find it there.</p>

<p>On appeal from a decree of tlie court of chancery advised by Yi ce-Chancellor Stevenson.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported ante p. 60.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is' reported ante p. 77.</p>

On appieal from a decree of the court of chancery advised by Advisory Master Maximilian T. Rosenberg, who filed the following opinion: When the testimony was closed in this case I announced my conclusions very briefly, adding that if the case were .appealed I should take the opportunity of stating them with more elaboration. The petition is filed by the husband against the wife, alleging adultery.

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, whose opinion is reported ante p. 90.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, whose opinion is reported in 83 N. J. Eq. 584.</p>

<p>On appeal .from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 83 N. J. Eq. 484.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Griffin, whose opinion is reported in 83 N. J, Eq. 599.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis, whose opinion is reported in 83 N. J. Eq. 536.</p>

<p>On appeal from a decree of the court of chancery advised by VicerChancellor Backes, whose, opinion is'reported in 88 N. J. Eq. 560. ' . .</p>

<p>On appeal from a decree of the court, of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 82 N. J. Eq. 49.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 83 N. J. Eq. 150.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 83 N. J. Eq. 514.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 82 N. J. Eq. 450.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 83 N. J. Eq. 117.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported .in 83 N. J. Eq. 37.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 83 N. J. Eq. 163.</p>

On appeals of Aetna Life Insurance Company from orders of the court of chancery advised by Vice-Chancellor Stevens, upon receipt of the advisory opinion of the supreme court reported in Russell, Receiver, v. Russell-Robinson Company, 86 N. J. Law 13.

<p>1. Section 65 of the act concerning corporations, Revision of 1896 (P. L. p. 277), providing for the appointment of receivers or trustees of insolvent corporations, as amended by act of April 1st, 1912 (P. L. p. 5S5), analyzed.</p> <p>2. The court of chancery is a high court of general jurisdiction over the subject-matters which fall within its cognizance. Bike the common law courts of general jurisdiction, its final judgments, namely, its decrees, do not, to be valid, have to show upon their face that all jurisdictional requirements have been complied with, as is the case with inferior tribunals of circumscribed and limited jurisdiction.</p> <p>3. In a decree in chancery there need not be in the ordering or mandatory part an adjudication of the existence of facts warranting the making of such decree, although they may be stated in the recitals preceding the decretal paragraph, or may be omitted entirely. A decree entitled in the court and cause may properly proceed to adjudicate the rights of the parties and award appropriate relief without the recital of pleadings or evidence, and such decree will be valid if the record in the case demonstrates that the cause was properly cognizable by the court, and the decree is within the .issue raised by the pleadings.</p> <p>4. The final decree of the court of chancery is not required to recite facts establishing jurisdiction; yet it is quite usual and proper, and the better practice, to succinctly set out the findings of the court in the recital part of the decree, and, where that has been omitted to be done, either party may, if he chooses, have the decree, already entered without such recitals, amended so as to include them, provided the chancellor in his discretion is willing to order such an amendment to be made.</p> <p>5. A final decree may be amended even after enrollment by inserting a clause which was inadvertently omitted in drawing it and which is necessary to give effect to the remedy of the successful party. Such decree cannot be varied in substance without a rehearing, but it may be corrected or amended, on motion, as to mere clerical errors, or by the insertion of any provision or direction which would have been inserted as matter of course if asked for at the hearing as a necessary and proper clause to carry into effect the decision of the court.</p> <p>6. A court of record has the inherent power to correct its own record by an order nuno pro tunc, even after appeal — for while, by an appeal, it loses jurisdiction of the case, it does not of its record — as where, through inadvertence some matter has been omitted from the record or some untrue statement inserted, or where the judgment entered contains misrecitals. The power of correction is confined to showing correctly the history of the proceedings before the appeal, and the lower court has no jurisdiction, pending an appeal, to interfere with the rights of parties under a judgment or decree.</p> <p>7. An appeal from the court of chancery to the court of errors and appeals, while it removes the cause and the potential record, does not actually remove the physical record; that is, the papers constituting the record remain in the court of chancery, whose jurisdiction over the record, pending appeal, is ousted only to the extent of preventing the decree in the court of chancery from destroying or impairing the subject of the appeal, or being in any degree used for that purpose.</p> <p>8. The court of chancery has the power to correct clerical errors, errors of form or mistakes in the drafting of decrees, as distinguished from judicial errors, pending appeal from its decree to the court of errors and appeals.</p> <p>9. A decree in chancery will be-amended by the insertion of a clause inadvertently omitted and which would'have been included as matter of course if asked for at the hearing; and this pending an appeal, provided its effect would not change the status or interfere with the rights of the parties under the decree.</p>

<p>On. order to show canse why the respondents should not be disbarred or otherwise disciplined and punished.</p>

<p>1. Mere delay in prosecuting a client’s cause, unless, perhaps, it is so long continued as to be evidence of fraudulent conduct, does not afford the basis for disciplining a solicitor, beyond reprimand and an admonition to proceed; but when a solicitor receives a fee, especially when it is all he asks, upon a promise speedily to prosecute, and then does nothing whatever to that end — does not even start — but, on the contrary, when asked by his client for information as to the status of the cause, he falsely informs her that it is pending and is being prosecuted with all convenient speed — in whatever words the idea is conveyed — he is guilty of fraud upon his client, and for this he should be disciplined.</p> <p>2. A solicitor who counsels and procures a client to make an affidavit “that she is the petitioner named in the foregoing petition,” and, also, “that the matters and things therein set forth are true, to the best of her knowledge and belief,” when, in fact, there is no petition in existence, with intent to annex the affidavit to a petition thereafter to be drawn and filed (which would have aggravated the matter, involving uttering a false affidavit and imposing the same upon the court), is guilty of professional misconduct amounting to malpractice.</p> <p>3. Professional malpractice is of three kinds — ignorant, negligent and willful. While disciplinary proceedings may not be taken against a solicitor for ignorant malpractice, for negligent malpractice he can be censured by the court, and in gross cases disciplined; and, for willful malpractice, he can be disciplined even to the extent of disbarment.</p> <p>4. The offence of the respondent is of a dual character (a.) obtaining money from a client upon the promise of prompt professional service, without rendering any service, accompanied by false representations that her cause was being prosecuted with all convenient speed, extending over a period of seven months, and (6) counseling and procuring her to make an affidavit false in fact in the sense that the alleged fact did not exist hut not false in that it was contrary to existing facts, with intent to make use of the affidavit. Both offences were deliberately, that is to say, willfully committed. These offences, singly or together, amount to malpractice in a solicitor, and for both of them suspension from practice for a period of two years is a proper penalty under all the facts and circumstances of the case at bar.</p> <p>5. The violation of a promissory obligation followed up with the false assertion, oft repeated, that the promise was being performed, is malpractice, in a solicitor who has received a fee from a client for professional service.</p>

<p>On application for preliminary injunction. Heard on bill and affidavits and answering affidavits.</p>

<p>1. An unexplained delay by a solicitor in the prosecution of a suit for his client is not of itself malpractice justifying disbarment.</p> <p>2. A mistake by a solicitor in drafting a petition in a suit prosecuted for his client, resulting from oversight, or, at most, from negligence, is not malpractice justifying disbarment.</p> <p>3. Evidence held to show that a solicitor, in prosecuting a suit for a client, was guilty of malpractice justifying disbarment.</p> <p>4. “Malpractice” by a solicitor comprises any conduct which shows such intentional fraud on the court or client as is evidence of moral turpitude.</p>

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

<p>Upon a bill for an account with respect to the profits of the defendant corporation, evidence Held to sustain the master’s' report upon exceptions thereto, save as to certain specified particulars.</p>

<p>1. The words “heirs-at-law,” in a will disposing of personalty, mean next of kin under the statute of distribution, and include a surviving wife.</p> <p>2. Where there is a testamentary gift of real and personal property to heirs-at-law, heirs-at-law, properly so called, take the realty, while next of kin under the statute of distribution take the personalty.</p> <p>3. Testator gave the income of his residuary estate to his wife for life and after her death in trust to divide the same between his nephews and nieces, and declared that in case any nephew or niece should die before the death of himself or wife the share of the deceased niece or nephew should be divided among his or her heirs-at-law, the same as would have been done if the niece or .nephew had been paid his or her share from the estate. — Held, that, on the death of a niece in the lifetime of the wife, her heirs-at-law took under the will and not from the niece.</p> <p>4. Testator gave his residuary estate to his wife for life and after her death in trust to nephews and nieces, and provided that on the death before the death of testator, or his wife, of any nephew or niece, his oilier share should be divided among his or her lieirs-at-law, and gave the trustee authority to sell. A nephew died before testator, leaving a widow and children. Thereafter part of the real estate was sold by the widow. Thereafter other nephews died. — Held, that the children of the nephew dying before testator took the share of the proceeds of the sale of the real estate as if in remained real estate, while the children and widows, of the other nephews dying after the sale took the proceeds as other-personal property.</p> <p>5. Where real and personal estate is given to a trustee in trust for a class with discretionary power to convert the whole into personalty, and the trustee makes a total or partial conversion, the beneficiaries will take the property as real or personal property according to the condition in which it is found.</p>

<p>Upon a bill filed by certain preferred and common stockholders of the United Shoe Machinery Company, for an injunction to restrain the consummation of the proposed merger of that company with the United Shoe Machinery Corporation, after an examination of the respective certificates of the incorporation of these two corporations — Held, a preliminary injunction will issue restraining'the merger until final hearing, first, because the charter of the United Shoe Machinery Corporation confers more extensive primary powers than does the charter of the United Shoe Machinery Company, and that some of the objects of the corporation are not similar to any of the objects of the company and, consequently, they cannot under section 104 of the Corporation act (Comp. Stat. p. 1659) be merged; and secondly, because the terms of the merger are unfair and inequitable to the preferred stockholders in the event of liquidation or dissolution.</p>

<p>In a suit for ascertaining damages sustained by owners of riparian lands, evidence Held to show that the owners of a certain property are not entitled to compensation, as riparian owners, when, in a conveyance thereof, the premises are described as lying on the Passaic river “which is overflowed by the raising of the mill dam of the said company (i. e., the Dundee Manufacturing Company), and which contains three-quarters of an acre by the same more or less.”</p>

<p>1. In a suit to enjoin the erection oí wore than one house on two lots of land adjacent to each other, upon the theory that a largo tract of land embracing the lots of the complainants and defendants was originally laid out and mapped, and a “neighborhood settlement” for the benefit of all future lot owners was established, according to which a scheme of restrictions was created, and that all future owners of these lots have the benefit of this general scheme, evidence Held to fail to show any existing scheme or “neighborhood settlement” which establishes any right in the owner of the complainant’s house and lot, to prevent by injunction the erection of separate residences on the two lots belonging to the defendants.</p> <p>2. The idea that after a deed has been made, the grantee can through a course of years get the benefit of restrictions which the grantee sees fit to insert in subsequent conveyances, is novel and untenable.</p>

<p>1. The testator devised his homestead farm comprising two hundred and ninety-three acres to his wife, who predeceased him, and five daughters, who survived him, in the following words: “I give and bequeath to my wife and my daughters [naming them] all of my above mentioned real estate, share and share alike, with full power to sell and convey the same with the right to make good and sufficient title.” In a suit brought by two of the daughters against the other three and the husband of a married one, for the partition of said farm, the defendants filed a joint and several plea to the whole bill setting up as a bar to the suit the following clause in the will: “I do order and direct that the homestead property be not sold so long as my wife or my daughters require or need the same for a home.” The pl'ea expressly alleged that the defendant daughters “do require and need the said homestead property * * * for a home,” and claimed that by virtue of this clause the court is without jurisdiction to entertain the bill or to cause a partition to be made. — Held, first, that whether or not the clause of the will set forth in the plea is a mere nugatory direction, undertaking to impose a limitation upon the absolute ownership of property repugnant to the devise of the same property in fee, may remain undecided inasmuch as the whole ‘will has not been submitted to the court, n,or have all the facts and circumstances been exhibited which surrounded the testator when he made his will; and, secondly, that if the clause set up in the plea is to be construed in all respects in accordance with the argument on behalf of the defendants, the plea is bad because it merely alleges that three out of the five daughters “require and need the said homestead property * * * for a home,” and therefore an order will be made overruling the plea.</p> <p>2. Upon the argument of the plea under the rule of pleading, omni-s presumptio contra proferentem, the clauses are to be presumed to come in the will in the order least advantageous to the purposes of the plea.</p> <p>3. If there are any circumstances which surrounded the testator when he made his will — such as the ages of his children, their places of residence, the use of the so-called homestead farm as a joint residence, &c., the same unfavorable presumption infects the defendants’ case on their plea. The bill sets forth a clear case for partition. The plea must exhibit a case in which the court must construe the will in such a way as to deny the complainants their right to a partition when their bill was filed.</p>

<p>1. A decree for specific performance in favor of vendor’s lands or chattels is seldom enforceable by contempt proceedings resulting in the imprisonment of the contumacious vendee until he obeys the court’s mandate, by reason of the constitutional provision abolishing imprisonment for debt in any action or any judgment founded upon contract unless in case of fraud.</p> <p>2. The proceedings available to a successful complainant in a vendor’s suit for specific performance by which his decree can be enforced are those provided by section 46 of the Chancery act (1 Oomp. Stat. 1910 p. 4^7), which includes process of sequestration against the real and personal estate of defendant, the writ of fieri facias against goods and lands, and copias ad satisfaciendum against the body of the defendant if the case is infected with fraud, and there is no practice warranting the enforcement of the vendor’s right to specific performance by an absolute decree of a court of equity for the price and execution in the usual form while the vendor is allowed to remain the owner of the property which he agreed to sell and has the power to dispose of it; though it would seem that a lien might be established upon the property sold for the amount of the price and the property sold for the satisfaction of such lien all in one suit.</p> <p>3. The theory of a vendor’s suit for specific performance of the contract of sale is that the court will compel the carrying out of the contract on both sides, usually under the direction of a master.</p> <p>4. In this state with the more convenient machinery of a court of equity available for the specific performance of contracts for the sale of real and pergonal property, the vendor electing to sue at law recovers not the price but the amount of his damages.</p> <p>5. Where one advanced money to a corporation on mortgage and a third party executed a guaranty or an agreement to him stipulating that he would purchase the mortgage at its maturity, provided that the mortgagee would then tender an assignment of the mortgage or notify the purchaser of a desire to assign, and reciting that the purchaser or guarantor was then worth $10,000 in real estate, the vendor without assignment or tender of the corporation’s mortgage was not entitled to a specific performance of the agreement, except as to the deficiency on subsequent realization of the corporation mortgage.</p> <p>6. In such case one taking a mortgage from the purchaser or guarantor and not a party to the suit in which the vendor obtained a decree for specific performance, with execution and sale, could not be presumed to have notice thereof.</p> <p>7. In such case the purchaser or guarantor, by her silence and acquiescence in a decree for specific performance of the guaranty, or agreement to purchase, and in the order for execution and sale of her property, waived all objections to the proceedings on the execution issued against her, but no waiver or acquiescence could be imputed to complainant herein who held a mortgage on the property in dispute, which she had received from the purchaser or guarantor and placed on record several years before the decree and execution sale.</p> <p>8. In such case, where the mortgage was without legal consideration, was given subsequent to the making of the contract of guaranty or purchase when such contract was about to become due and the guarantor or purchaser had been called upon to perform the same, with actual intent on the part of the guarantor or purchaser to delay, &e., the vendor, or to hinder him in enforcing the contract of guaranty or purchase, the mortgagee, however, being innocent, the mortgaged premises would be sold to satisfy first the deficiency due to the vendor after crediting upon his decree what he had realized from the mortgage from the corporation which was the subject-matter of the contract of guaranty or purchase, and next the amount of the complainant’s mortgage.</p> <p>: 9. The theory of a vendor's suit for specific performance of a contract for the sale of either real or personal property, requires that the vendor may enforce payment to him of the agreed price only upon his being ready and able to convey the property to the vendee in order that the entire contract on both sides may be performed under the direction of the court, and that therefore when the vendor treats the subject-matter of the contract as still his own property, and sells or otherwise realizes the value thereof, he has thereby destroyed his power to perform on his part and he no longer has the right to compel performance on the part of the vendee, and all that he is entitled to when he has created such a situation is a decree in his equity suit or a judgment in a law suit for the residue of the agreed price which he failed to obtain by sale of the property itself, the amount of such decree or judgment in fact being his damages.</p> <p>' 10. Case of Law v. Smith, 68 N. J. Eq. 81, examined and decree therein and proceedings upon the same criticised.</p>

<p>On petition, of receiver of insolvent corporation for assessment against stockholders.</p>

<p>On bill for construction of will. Hearing on motion of defendant G-. Walter Lees to amend answer and cross-bill.</p> <p>The bill is filed by complainants as executors of the last will and testament of Henry C. Lees, deceased, and seeks the construction of certain provisions of the will of testator to enable the executors to properly discharge their duties as such. The bill sets forth the death of said Lees, testate, in May, 1910; the probate of his will by the surrogate of the county in which testator resided; the issuance of letters of executorship to complainants and the terms of the will; and prays for construction of certain of its provisions.</p> <p>Defendant Gr. Walter Lees, one of the sons of testator, has filed an answer and cross-bill. The answer admits the probate and letters of executorship and asserts a construction of the will favorable to him; the cross-bill, which is filed as a part of the answer, sets forth the will, its probate and letters to complainants and seeks to charge complainants with certain liability which it is alleged is not recoverable in the orphans court by reason of the limited jurisdiction of that court in matters of construction of wills. An answer has been filed by complainants to the cross-bill and a general replication has been filed to the’ answer of defendants.</p> <p>Shortly prior to the time set for final hearing an application was made by defendant G-. Walter Lees for leave to amend his answer and cross-bill. The amendment now proposed withdraws from the answer that part which admits probate of the will and the granting of letters and withdraws that part of the cross-bill which asserts probate and issuance of letters to complainants, and substitutes therefor averments for both the answer and cross-bill, to the effect that the surrogate was without jurisdiction to admit the alleged will to probate or grant letters thereon. The proposed amended pleading sets forth specifically and in detail the physical condition and appearance of the will when it was presented to the surrogate for probate, and the claim is now made that these averments adequately disclose that doubts arose on the face of the will when it was presented for probate which denied to the surrogate jurisdiction to admit it to probate. The proposed amended cross-bill seeks an accounting from complainants to cross-complainant, as an heir, for moneys received and expended by complainants.</p>

<p>On bill for construction of will. Hearing on demurrer.</p>

<p>1. Evidence hold to show that a solicitor was guilty of extortion from, and of misappropriation of money of, his clients, justifying disbarment.</p> <p>2. A settlement of a controversy between an attorney and his client, by the attorney paying bach to the client money received, and surrendering notes executed by the client to the attorney, is evidence of extortion by the attorney from the client.</p>

On final hearing on bill, answer, replication and proofs. The original bill in this ease was a bill of interpleader and had relation to some securities in the possession of the- complainant which were claimed by the defendant Katherine Junkin and by the defendant Richard Fay Parker, as executor, and his children. In due course a decree of interpleader was passed and statements of claim were filed by the interpleading parties.

<p>On petition lor relief in a suit for partition of lands.</p>

<p>On motion for the appointment of a receiver.</p>

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

<p>1. It is a well-settled rule in this state that where a husband transfers either real or personal property to his wife, it will be presumed that the conveyance and transfer were intended to be by way of voluntary settlement upon her. This, however, is but a rebuttable presumption, and the deed having once been made and delivered by which title is vested in her, the burden of proof is on him to establish a different result.</p> <p>2. Where there is conflicting evidence as to a husband’s object In making the conveyance of lands to his wife, the ordinary presumiition that it is intended for a provision or settlement for- her benefit is not rebutted. Therefore, if on a balancing of the testimony, it should be found that the husband has not met the burden of proof, his application to the court must fail.</p> <p>3. The proceeding must be judged by what took place at the time of the execution and the delivery of the deed, and not by circumstances which occurred afterwards.</p> <p>4. A resulting trust is one that arises by implication of law as where a man pays the purchase price of lands and has the deed made in the name of a stranger; there a trust results in favor of the real purchaser, or where a conveyance is made in trust and the trusts are never declared, or fail to take effect, there, and in that case, a resulting trust aris'es likewise by implication of law.</p> <p>5. In a suit by a husband against his wife to establish á resulting trust in lands by him transferred to her, if it appear that the transfer was made so as to obtain a reduction of taxes, he must fail in his suit, because the transaction is void as against public policy, and the court will not aid in the enforcement of any contract which has for its object such a purpose.</p>

<p>A solicitor obtaining money from a client on false representations that her suit, prosecuted by him, was progressing, when in fact he had not begun the suit, is guilty of misconduct, justifying disbarment.</p>

<p>In a suit by the vendors against the vendee to compel the surrender and cancellation of the deed, a reconveyance of the property, and the cancellation and surrender of the promissory note given by the vendors to the vendee, evidence Held to show that the vendors were induced to part with the property and their note, upon false- representations made by the vendee, and that a decree will be made providing for a rescission of the contract, the reconveyance of the complainants’ property, and the surrender and cancellation of their note.</p>

<p>Evidence in a foreclosure suit Held insufficient to show that the mortgage under foreclosure and the bond secured to be paid thereby are •fraudulent.</p>

<p>1. Under the rule that, if testator manifests an intention to vest in the first legatee the uncontrolled power of disposing of the property, a limitation over is void, a provision of a will, “the remainder of money to go to my niece * * * and at her death to her children,” gives the first taker only a life estate.</p> <p>2. Intention of testator, as ascertained by rules of construction for that purpose, must be followed by the court.</p> <p>3. Where an aunt bequeathed money to a niece and on her death to her children, children born after the death of testatrix would take.</p>

<p>1. A court of equity may, in the first instance, settle the question of legal title, where other grounds of equitable jurisdiction are present, but then only when the jurisdiction is not assailed or a trial of law is waived.</p> <p>2. Where a bill for injunction alleges ownership of that part of the bod of a stream from which defendant was taking gravel under claim of right, irremediable injury, destruction of inheritance, diversion of stream, &c., but there was no showing of insolvency, and the allegations were refuted by the nature of the injury, which was in the nature of a trespass, for which adequate remedy existed, the bill would not be retained until the outcome of the action at law to settle the legal title.</p> <p>3. Equity will not restrain a non-continuing trespass, where the injury does not appeal' to be irremediable and destructive of the estate, and where there is an adequate remedy at law.</p>

<p>A bill by the heirs of a grantor, who had conveyed property to trustees, and provided that, if it should at any time cease to be used for the purpose therein specified, it should revert to him and his heirs, in which they alleged that the property had ceased to be used for the specified purposes, and sought to recover possession thereof, states merely an action to recover property for a breach of condition subsequent in a deed, triable at law, and equity has no jurisdiction thereof, though it could take jurisdiction of a suit by the trustees to have the terms of the trust construed for their guidance.</p>

<p>Under the by-laws of a benevolent society, providing that on the death of a member who. if sick, would be entitled to benefits, the death benefit should be appropriated toward his funeral expenses and paid to such competent relative as the lodge might select, and that in the absence of competent relatives, of which the lodge should be the sole judge, it should 'take charge of the funeral, the lodge, having notice that the executors were, and that decedent’s daughter was not, liable for the funeral expenses, could not defeat the trust by arbitrarily declaring the daughter, who had no right to the fund, to be the beneficiary, as it was only when it took charge of the funeral itself that it was the sole judge as to the beneficiary and the absence of competent relatives entitled to the fund.</p>

<p>1. A court of chancery has no jurisdiction to construe the codicil of a will where the question presented is purely one involving the legal title to lands.</p> <p>2. A court of chancery has no jurisdiction to construe the codicil of a will at the instance of trustees thereunder, where they merely ask to be informed whether the devisee owns the property devised absolutely or only for life, and ask no further relief or guidance in the administration of the trust estate.</p> <p>3. A bill by the trustees under a will to determine their rights to the remainder thereunder may properly be brought under Comp. Stnt. 1910 p. 5399, relating to the determination of claims to real estate in certain cases, and to quiet title to the same, and page 5404, relating to the determination of claims to estates in remainder, and to quiet title to the same.</p>

<p>1. The delivery of a savings bank book with intent to make a gift of the deposit transfers title to the fund.</p> <p>2. The owner of a savings bank deposit handed the bank pass-book to her daughter-in-law, with directions to give it to her husband, saying that she wanted him to have the pass-book and the money that was in the bank. The daughter-in-law thereupon delivered the book to her husband and told him what his mother had said. Subsequently his mother told him to make good use of the money, as it was all he would get. —Held, that the transaction constituted a valid gift of the fund.</p> <p>3. On a bill to determine the ownership of a savings bank deposit claimed by complainant as a gift inter vivos from his mother, in whose name the deposit stood, by delivery of the pass-book, evidence examined and Held to show a donative intent.</p> <p>4. TYlien a savings bank book stood in the name of a husband and wife, and the husband died, leaving the wife as executrix and sole legatee, it will be presumed, after administration, that she has reduced her testator’s interest in the deposit to her own possession, and could make a valid gift thereof.</p>

<p>1. Although the. common law procedure o'f strict foreclosure is almost entirely superseded by the more equitable method of foreclosure sale, as regulated by the statute, nevertheless strict foreclosure may be had where a mortgagee is in possession under a legal title from the holder of the equity of redemption, for the purpose of cutting off intervening-liens or encumbrances, where the mortgage is given for the entire purchase-money. and the value of the land does not exceed the amount of fhe mortgage, or where a purchaser in good faith, at a mortgage foreclosure sale which is not conclusive against some encumbrancer not made a party (o the suit, lias gone into possession under such sale.</p> <p>'2. In an action for strict foreclosure of a mortgage by one. in possession of the property against a subsequent encumbrancer, where the answer merely denied complainant's allegations that she had no knowledge of such subsequent encumbrance when purchasing under her own foreclosure sale, such answdr offered no bar to complainant's relief, since only an intentional omission from tlie bill in a sale-foreclosure prevents the prior mortgagee from being’ a purchaser in good faith and not to be afforded the harsh remedy of strict foreclosure.</p>

<p>1. A final decree of divorce will not be amended by inserting a clause for alimony, when such relief was neither prayed for in the petition nor in any manner presented to the court for judicial determination at the time of the entering of the decree.</p> <p>2. When permanent alimony is allowed in the final decree it may be permitted to start from the filing of the bill. When no provision is made for permanent alimony in the final decree, and thereafter application is made for the same under the statute (Comp. Stai. p. 2035), it will be ordered to run from the date of the application, and' not from the date of the final decree.</p>

<p>1. A corporation organized to promote and finance other corporations, whose authorized capital stock was all “water,” issued to a subsidiary company and used in promoting the sale of special contract bonds, whoso liabilities from the start exceeded its assets by $250,000, which had defaulted in interest payments, in taxes to the state, and in the payment of other claims, and all of whose subordinate companies whose stock it held were either bankrupt or defunct, and which itself had begun a policy of retrenchment amounting almost to a suspension of business, and which had no funds to carry on its business, was bankrupt and insolvent. within the statute; the term “insolvency” denoting a general inability to meet pecuniary liabilities as they matured, either from available assets or any honest use of credit, and not negatived because one may ultimately have a surplus, after winding up his affairs.</p> <p>2. In such case, where the company had no hope of new capital, or any reasonable prospect of paying the principal and interest of its bonds through which the public had already suffered a loss, and where its officials had maladministered its affairs, an injunction will issue against it, and a receiver be appointed.</p>

<p>1. Premiums paid for life insurance are, as against existing debts, voluntary gifts and conclusively fraudulent.</p> <p>2. Premiums paid on life insurance policies, in fraud of creditors, may he, recovered to the extent of those paid within the statutory period of limitation, i. e., six years before the commencement of the suit. Yorlc v. Flaherty, f,10 Mass. $5, criticised.</p> <p>3. Doans made to assured upon the security of life insurance policies and deducted from the proceeds by the company, will not be set off against premiums paid in fraud of creditors in a suit brought to recover them.</p> <p>4. In a suit to recover premiums paid in fraud of creditors, it is an immaterial issue where the insurance was contracted, or whence and under what laws the property was acquired, since the property — the proceeds of the insurance — is held by virtue of an enabling statute of this state.</p> <p>5. Voluntary payments out of the proceeds of life insurance policies to creditors within the class protected by the statute, are entitled to be. set off in a suit brought to recover premiums paid in fraud of creditors.</p> <p>6. Dues paid for beneficial society insurance in fraud of creditors are not recoverable. But querré.</p> <p>7. A creditor who by his diligence discovers assets fraudulently concealed by his debtor, is entitled to priority of payment, and this is not lost by the form of his bill which lets in other creditors.</p>

<p>On an accounting with respect to credits claimed by a defendant in a foreclosure suit, evidence Held to show that defendant was not entitled to the credits claimed by him.</p>

<p>1. A purchaser, assuming payment of a mortgage on the premises executed by the vendor, becomes, as between the parties, the principal debtor, and the vendor is only a surety.</p> <p>2. Where a purchaser assumed payment of a mortgage'on the premises executed by the vendor, the mortgagee might, by way of subrogation, have the benefit of all collateral obligations which the person standing in the situation of a surety for another holds for indemnity, and the remedy of the mortgagee in equity is independent.of a foreclosure suit, unaffected by the acts of 1880 or 1881.</p> <p>3. Where a vendor, selling to a purchaser assuming payment of a mortgage on the premises executed by the vendor, paid a deficiency on foreclosure of the mortgage, he became subrogated to the rights of the mortgagee against the purchaser.</p> <p>4. Where a vendor, selling to a purchaser assuming payment of a mortgage on the premises executed by the vendor, paid a deficiency on a foreclosure, and the mortgagee assigned to him all his interest under the foreclosure decree, the vendor became invested with the rights which the mortgagee had to proceed against the purchaser as principal debtor, including the right to proceed against him in equity.</p> <p>5. Where a bill in equity is sufficient on its face without reference to allegations of certain covenants entered into between the parties, a demurrer to the bill must be overruled.</p>

<p>1. At common law, where the vendor sells his whole interest or property in chattels, with conditions restricting the sale thereof, the title passes, but the conditions, being against public policy, are void.</p> <p>2. Act April 1st, 1913 (P. L. p. 377), forbidding merchants from discriminating goods of any maker by depreciating the value of such products, &c., is in derogation of the common law, and must be strictly construed.</p> <p>3. Under act April 1st, 1913 (P. L. 377), forbidding merchants from discriminating against goods of any maker by depreciating the value of such products, &c., except in cases where the goods do not “carry any notice prohibiting such practice,” a notice in an Ingersoll watch, under the heading “License,” forbidding a sale at less than the price therein fixed, but not in terms prohibiting, the practice denounced by the statute, is insufficient.</p>

<p>Where an attorney falsely represented to Ms client that he had instituted divorce proceedings, and by means of such misrepresentations procured moneys which he claimed were for necessary costs, he should, in the absence of defence or explanation, be disbarred.</p>

<p>1. Counsel fees and costs will not be allowed out of a decedent’s estate to an unsuccessful contestant of a will whenever he ventures beyond an exploration of the attesting witnesses, unless he had reasonable cause for believing that the paper-writing offered for probate was not the last will and testament of the deceased, and this belief must be shown to have rested upon facts or circumstances sufficient to excite in the probate court an apprehension that the testator lacked mental capacity or was unduly influenced.</p> <p>2. Evidence Held to fail to show tliat the probate court was justified in imposing upon the estate the fees and costs of the caveatrix who contested the will on the ground of undue influence, alleged to have been exercised by her mother over the testator.</p> <p>3. Undue influence defined.</p>

<p>1. It would seem that, in this state, the common law rule permitting a grantor who has conveyed by a deed without covenants of title to assert as against his grantee an adverse title subsequently .acquired by him is not applicable as between mortgagor and mortgagee.</p> <p>2. An owner of land executed a mortgage thereon containing a covenant for quiet enjoyment. After the mortgagor’s death his widow, who was sole devisee, used part of the proceeds of the loan to purchase an outstanding interest in the premises which she attempted to assert after the foreclosure of the mortgage. — Held that, since the mortgagor, her husband, would have been estopped to assert such outstanding title against the mortgagee, his widow, being privy in estate with her husband, was also estopped to the same extent.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 83 N. J. Eq. 144.</p>

<p>1. The general authority of the president of a business corporation does not warrant him in transferring contracts made by the corporation, or in assigning money not yet earned under such contracts.</p> <p>2. The case of Cogan v. Conover Manufaotwing Co., 69 N. J. Eq. 816, followed.</p>

<p>The complainant put on the market an article which it called “non-fluid oil.” It had the consistency of a grease and on account of its non-fluid character might popularly be called a grease. It was composed of oil to an extent varying from seventy-five to ninety-five per cent., and its consistency was obtained by a process of saponification, by which the particles of oil were supposed to be held in occlusion. — Held, (1) that the words “non-fluid oil” were descriptive and that complainant was not entitled to an exclusive property right therein; (2) that the product might fairly be called a grease or an oil, that the name “non-fluid oil” was not a material misrepresentation, and that the complainant was entitled to an injunction to restrain simulation by the defendant.</p>

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

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

<p>Where husband and wife have been living apart by mutual consent, there must be satisfactory proof that the consent thereto was withdrawn and the marital duty was demanded, to turn such separate living into willful desertion.</p>

<p>1. The right of subrogation accruing to an insurance company to recover from a tort-feasor, through whose negligence the loss was incurred, the amount paid on its policy of insurance, is not barred by a settlement between the tort-feasor and the owner for a sum less than the actual liability of the former, and for which the latter gave a full release, for such a release is a fraud upon the subrogee which will be no defence either at law or in equity to its action to recover the loss remaining unsatisfied after applying to its satisfaction the sum paid by the tort-feasor.</p> <p>2. Where the subrogee proceeds in the first instance against the insured and in that proceeding it appears that the damages for which a tortfeasor is liable to an insured exceeds the sum for which the insured settled with him, and that a sufficient sum remains unpaid to satisfy the subrogee, such a conclusion is final between the parties to the record.</p>

<p>A trustee applied to the orphans court to be discharged from his office, and the application was granted upon accounting and paying- over the trust fund in his hands. He filed his account charging himself with the corpus of the fund and praying- allowance for different sums which he claimed to have paid to the respective beneficiaries as represented by certain written releases in satisfaction of the entire corptis. The beneficiaries filed exceptions to the account upon the ground that the accountant had not charged himself with interest, and that he had not paid the real sum for which the releases were given, and therefore the allowances prayed were excessive. The orphans court tried the question of the bona fides of the releases and refused to give them the effect which their words imported, and reduced the. allowances to the sums actually paid. — field, that the orphans court had no power, upon such an accounting, to reform or set aside the releases, or to determine their force, and that in such case its jurisdiction was limited to ascertaining the amount for which the trustee should bo liable, leaving the effect to be given to the releases to be settled when payment of the trust fund, as determined by the accounting, is sought to be enforced.</p>

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

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

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

<p>On appeal from two orders of the court of chancery advised by Vice-Chancellor Griffin, one directing the revival of the suit, and the other refusing to strike out defendants’ cross-bill.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 83 N. J. Eq. 459.</p>

<p>On appeal from a decree of tlie court of chancery advised by Vice-Chancellor Backes, whose opinion is reported ante p. 438.</p>

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

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 83 N. J. Eq. 476.</p>

<p>On appeal from a decree of the court of chancery advised by Advisory Master Charles H. Hartshorne.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson, whose opinion is reported ante p. 285.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported ante p. 321, sub noin. The Railway Review et al. v. Groff Drill and Machine Tool Co.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported ante p. 268.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, whose- opinion is reported in 82 N. J. Eq. 127. Reported, also, sub nom. Swayze, Executor, &c., v. Huntington et al., 88 N. J. Eq. 335.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson, whose opinion is reported ante p. 293.</p>

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

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

<p>On application for retaxation of costs, &c.</p>

<p>1. P., alleging that his wife had committed adultery with IC, retained H. as solicitor to bring suit for divorce against her. H., instead of bringing such suit, sought the paramour IC, and informed him that his instructions were to demand $25,000 to save him from the exposure which would follow if suit were brought, offering to refrain from bringing suit if the demand were met. IC yielded and gave H. the $25,000. H. informed his client that he had settled the matter with IC, but did not tell him the amount he had received, and gave him $2,000, saying that it was exclusive of his fee and that of the detectives. H. gave the firm of detectives, who had obtained evidence, $9,000, keeping the balance of $14,000 for himself. One year afterward P. and the detectives discovered the amount received by I-I. for P., and, upon P.’s demand for more money, H. gave him an additional $2,500, making $4,500 in all, and gave the detectives, upon their demand for more, an additional $1,250, making the solicitor's share of the proceeds forty-one per cent., the detectives’ forty-one per cent., and the client’s, whose cause of action they exploited for their own benefit, only eighteen per cent. — Held, that this conduct on the part of H., the solicitor, toward his client, was unconscionable, oppressive and fraudulent, and that, therefore, he should be debarred from practicing as a solicitor.</p> <p>2. When a contract between solicitor and client shows that the compensation therein fixed is so unreasonably excessive as to amount to extortion or to evince a purpose on the part of the solicitor to obtain an undue advantage of his client, the latter could not have had in view the real nature and effect of the alleged bargain.</p> <p>3. When a’ solicitor retains for himself, and permits and aids detectives in diverting, a grossly disproportionate amount of a client’s recovery, in the name of compensation for services of himself and the detectives, which services were meagre in point of time and entirely non-expert, the compensation feature of the transaction is only a name.</p> <p>4. Lawyers’ services are not based upon, nor are they restricted to, mere time service. They are entitled to fees which will adequately compensate them for their services, especially w'hen those services are valuable to their clients, and when recoveries are made, their fees may be,, and properly are, somewhat apportioned to the avails gotten for their clients. But a solicitor who performs one day’s work for a client, not involving professional skill or ability, and recovers $25,000 for him upon his cause of action, and takes one-half of it under the guise of compensation, is guilty of unprofessional conduct amounting to fraud upon his client.</p> <p>5. If it were known by solicitor and client that $25,000 could be recovered by the solicitor for the client for services not requiring any particular degree of skill or ability, or any comparatively appreciable time service, and they entered into a contract to divide that equally between them, then, upon the client’s repudiation of that contract, the court would doubtless set it aside and compel counsel to restore to his client all over what would be considered fair and reasonable compensation, upon the principle that the excess was a gift without any consideration to support it, and because the contract was unconscionable, oppressive and fraudulent on the part of the solicitor.</p> <p>6. If a contract be made between solicitor and client for an equal division of a recovery upon the client’s claim for damages for criminal conversation where the amount of recovery is entirely problematical, and upon a cause of action, which, it would seem at best, would not bring for the client more than a small amount, if anything, but which turns out to yield $25,000, -because the client’s adversary is oppressed by the former’s solicitor with threats of exposure (which would have been incidental to suit brought), then it becomes the duty of that solicitor himself to renounce the contract and turn over to his client all but reasonable compensation for his services.</p> <p>7. The making of the sort of contract above mentioned may be cause for disciplining a solicitor, although, in a crim. oon. case, he would act in the capacity of an attorney-at-law.</p> <p>8. A solicitor is guilty of unprofessional conduct in procuring from a client's wife, in the presence of her husband, a sworn confession of adultery, as the confession would not be received in evidence in a divorce. case nor in a suit for damages for alienation of the wife’s affections — especially when the confession is obtained and used for a sinister purpose.</p> <p>9. When a solicitor in chancery is called upon to respond to a rule to show cause why he should not be disbarred or otherwise disciplined for unprofessional conduct as a solicitor, and, upon the hearing, it appears that an offence meriting punishment has been committed by the solicitor, not, however, in Ms capacity as such, but as an attorney of the supreme court, the court of chancery nevertheless will properly discipline the derelict solicitor who has committed the offence, because courts, in disciplining lawyers, are not restricted to offences committed in the. particular courts in which the disciplinary proceedings are instituted.</p> <p>10. Generally it may be said that courts will discipline lawyers for offences involving moral turpitude.</p> <p>11. A client’s adversary has rights which the client’s solicitor is bound to regard. One is to deliberate as to whether or not he will pay an enormous demand made upon Mm or resist the collection of it. If he asks for time to think it over, but is told that the money has to be paid immediately or papers will be filed and he will be exposed, the solicitor is guilty of unprofessional conduct.</p>

<p>On application for a ne exeat in aid of a habeas corpus.</p>

<p>1. Under court rule 194, providing that where a cause is referred to a vice-chancellor, all proceedings to the final decree shall he had before him, an application to punish a husband for contempt for non-payment of alimony should be made before the vice-chancellor who recommended the decree for divorce and fixed the alimony.</p> <p>2. Court rule 205a provides that the vice-chancellor to whom a subsequent application is made, may decline to entertain the proceeding if in his judgment application should be made to the one to whom previous application has been made. In a suit for divorce the vice-chancellor to whom the proceeding was first referred recommended a decree nisi and fixed the allowance of alimony. Thereafter on petition to him to attach the defendant for non-payment of alimony, attachment was denied.— Held, that, as the material question in such proceeding is the contemptuous failure to pay, and the first vice-chancellor had heard evidence thereon, a subsequent application should ordinarily not be heard by another, but should be referred to the original one.</p>

<p>On petition to open decree for assessment of stockholders.</p>

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

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

<p>1. The intestate, who was plaintiff’s father, made considerable advances to a lumber dealer, and, being unable to collect, a corporation was formed, and the dealer transferred his stock of lumber to the corporation. The stock was worth about $8,200, and forty shares each were issued to complainant and the intestate. Subsequently it was claimed that the corporation had not been completed according to law, and complainant took possession of the property as custodian. He sold it and lent the proceeds to the intestate, who gave him a note which was intended to protect complainant in case the creditors of the corporation and of the lumber dealer established claims against him. The intestate died, and the note was presented as a claim against his estate. Defendant, the administrator, made objections to the claim to its full amount, and, the claim being a matter of discussion under a partial distribution, the administrator and heirs agreed to complainant’s statement that the note was given him as security against any loss which he might suffer in suits by the receiver of the insolvent corporation who was seeking to charge stockholders for the benefit of corporate creditors and in suits by creditors of the lumber dealer. — Beld, that under ordinary circumstances such agreement estopped defendant from relying on the statute of limitations, and also estopped complainant from asserting he was entitled to the full amount of the note.</p> <p>2. In such case, as deceased had a good claim against the lumber dealer and the lending of the assets of the corporation was not a mere attempt to appropriate such assets to the exclusion of others entitled, the parties are entitled to the aid of a court of equity by enjoining any plea of limitations, and are not to be left to their strictly legal remedies.</p> <p>3. In such case, as complainant had paid the assessments levied against him as a stockholder and discharged pro rata the corporate debts, he should, to obtain equitable relief, sue for the benefit of the corporate receiver, and upon collection of the amount of the note he will be reimbursed for his expenditures and the rights of the several stockholders will be adjudicated; the mere payment of his proportion of the debts not giving complainant the right to sue directly for his own benefit.</p>

<p>1. As to unpaid taxes, a purchaser of land at judicial sale can be protected by deduction from the purchase-money.</p> <p>2. Until the birth of issue the husband of a woman owning land has no estate by the curtesy initiate.</p> <p>3. Under Partition act of 1846 (3 Comp. Stat. 1910 p. 3910 § 44), providing that the court of chancery shall have power to decree the sale of land for partition, the inchoate rights of dower of wives of tenants in common made parties to the suit, as well as any rights of the husbands of the tenants in common, who were also parties, are barred by a sale made under an order requiring the master to execute a convenance operating as a bar to the rights of all persons.</p> <p>4. Where a master appointed to sell land for partition failed to advertise and give notice of the sale in the county where part of the lands were situated, the purchaser cannot be required to comply with his bid, the power of the master being only that obtained by strict compliance with the statute.</p> <p>5. Act of 1906 (4 Comp. Stat. 1910 p. 4686 § 85) gives a purchaser of land at judicial sale the right to object to any defect which would render title unmarketable.</p> <p>6. Act February 16th, 1891 (P. L. 1891 p. 24), provides that sales of land made by virtue of an order of court shall be confirmed notwithstanding irregularity in the publication of the advertisement, provided the court be satisfied by affidavit that the- defect or irregularity was not injurious to the parties in interest. A tract of land ordered sold for partition was located in two counties, but advertisement was published in only one county. The portion lying in the other county consisted of about one acre which was wholly occupied by a canal. — Held, that act of 1891 was not repealed because not included in the compiled statutes, and hence the master who sold the land under the defective advertisement could petition under the act to require the purchaser to complete his purchase, the defect in advertisement not being prejudicial.</p>

On bill, amended bill, answer, replication, stipulation and proofs. Complainant, Mrs. Busath, was the owner of lands in the city of New York, and the defendant Mrs. Prival of two lots of land in Englewood, New Jersey. An oral agreement for exchange of the lands was made between complainant and Mrs. Prival and her husband, Louis, and the terms of exchange agreed on.

<p>1. Contracts entered into before the beginning of hostilities continue in force during the war, and may' be sued upon if to the disadvantage of the alien enemy defendant, who may always defend and who may in exceptional cases sue.</p> <p>2. A French company and a German company entered into a contract before the beginning of hostilities between their respective governments, whereby the German company conveyed certain wireless telegraph patent rights, undertook to construct a wifeless station in New Jersey, and, on failure to meet the prescribed conditions as to its operation, agreed to repurchase it. After the beginning of hostilities, a law and ordinance of the French republic forbade French citizens from performing existing contracts for the benefit of alien enemies, a statute of the German empire forbade all German subjects from carrying on any business with French citizens, and a special military decree forbade the German company to render any assistance to the French company or to initiate any action against it. The German penal code, paragraph 89, enacts that a German doing anything to assist a hostile power shall be punished for high treason. Tlje New Jersey statutes give aliens the same rights to acquire, hold, and dispose of lands as citizens, and Chancery act (Comp. Siat. 1910 p. J$0 § 45) declares that a decree for a conveyance, &c., not complied with by the party against whom it passes, shall be as effective as if executed conformably to the decree, notwithstanding any disability of such party. — Held, on a bill by the French company for specific performance of the contract to repurchase, that a plea that it would be unlawful for the parties to perform a decree was not good, that neither the French ordinance nor the German statute or decree expressly forbade the institution of a suit or its defence, that the ground of aid to an alien enemy failed, that comity required that a neutral court be open to litigation by either party to the contract, and that if compliance with the decree was refused the Chancery act would enforce it.</p>

<p>A bill in equity will not lie to restrain six de facto councilmen of a city from contracting' debts and ordering the payment of bills on behalf of such city, on the ground that three of such councilmen had not been lawfully elected, while four were necessary to constitute a quorum of the common council, since the ascertainment of titles to public office belongs to courts of law.</p>

<p>On final hearing. On bill for specific performance and for injunction.</p>

<p>1. Where, in a suit against a railroad to compel it to provide a private crossing, a sewer was at such grade that for the construction of a crossing at a point proposed it would have to be lowered, the crossing could not be ordered at such point; since the municipality, not being a party, was not subject to the orders of the court.</p> <p>2. Under P. L. 1903 p. 659 § 26, providing that it shall be the duty of every railroad company owning, leasing, or controlling any right of way for a railroad within the state, where such road intersects any private land, to provide and keep in repair suitable wagonways across such road, it is the duty of the court authorizing the construction of a private crossing in a landowner’s suit therefor to arrange one suitable and convenient in view of the rights, duties and obligations both of the landowner and the road under all the facts.</p> <p>3. In a suit against a railroad to compel the construction of a private crossing, evidence Held to show that a particular location would be the most practicable and convenient of all suggested.</p> <p>4. All the work upon a private railroad crossing authorized by the court in a property owner’s suit for its construction against a railroad crossing his land must be done at the road’s expense.</p> <p>5. Where the court, in a suit for a private crossing against a railroad, authorized such crossing, it should direct, from considerations of safety, that the crossing run from the level of the complainant’s land on one side of the track to its level on the other 'in a straight line, and at right angles to the line of the track, and that its grade from the level of the land to that of the track should not exceed eight feet in the hundred.</p> <p>6. Where the court, in a suit for a private crossing against a railroad intersecting land, authorizes the construction of a crossing at grade,' it will require the road to install and maintain in good order an electric warning bell notifying the approach of a train at a distance of not less than one thousand two hundred feet.</p>

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

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

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

<p>1. Where an alleged gift of a fund by an uncle to his niece was not made until after its deposit by the niece, the issuance of a pass-book in the joint names of the uncle and niece, the handing it by the bank to, and retention by, the niece, was not a sufficient delivery, unless the uncle knew of its existence.</p> <p>2. The act of a niece in depositing the funds of her uncle as a joint deposit, on the understanding that the enjoyment of the fund was to be the niece’s, if at all, only on the death of the uncle, would be a disposition, testamentary in character, in violation of the statute of wills, and hence invalid.</p> <p>8. Where a niece who had been reared by her uncle lived with him and his aged sister for upwards of ten years, conducting the household and attending to their affairs, and the uncle was aged, physically weak, mentally infirm, and dependent upon her, his alleged gift of a bank deposit to her raised a presumption of undue influence, casting upon her the burden of showing by clear, convincing and satisfactory evidence-that the gift was his voluntary and intelligent act.</p> <p>4. In such case, where the uncle’s entire estate consisted of a $1,000 government bond and the bank deposit of $1,147, so that the gift of the deposit, if valid, would deprive him of more than half of his estate and leave an amount manifestly insufficient for his maintenance, there was a presumption of improvidence, easting upon the niece the burden of showing that the uncle had the benefit of proper independent advice.</p>

<p>1. The jurisdiction of equity to construe a will can only be invoked when such construction involves some- equitable relief, and will not be exercised, in construing a will in respect to the devolution of title to real estate, where no equitable relief to such real estate is sought; but where the bill' claimed that certain property of the estate vested in complainants as heirs-at-law, the cross-bills of the answering defendants, some of the nephews and nieces, alleged that complainants had but a life interest in the property and that the remainder was in defendants or their survivors, that complainants in their capacity 'as trustees and life tenants through mismanagement had permitted some parts thereof to be sold for taxes and had conveyed other parts, and prayed that complainants be required to redeem, and that they account for the proceeds of the sales, and for their removal from office, remedied any defects in jurisdiction, since the facts set up and the relief prayed for were cognizable in equity.</p> <p>2. Under a will dealing with each piece of property singly, a paragraph, requesting the executors to hold the property, consisting of two separate lots, to keep it leased, and after paying taxes and expenses, to divide the balance between his two daughters, and that in case of either dying the buildings to be kept leased and the net income of the deceased should be divided, equally between testator’s nephews and nieces, and that at the decease of both daughters the property should be sold and the' proceeds divided equally between such nephews and nieces or their survivors, the nephews and nieces were not the residuary beneficiaries, and took nothing except the property mentioned in such paragraph, so that the daughters, as heirs-at-law or next of kin, were entitled to property, real and personal, not finally disposed of.</p> <p>3. In construing a will the testator’s intention must be gathered, either expressly or by implication, from within the four corners of the will.</p> <p>4. The court leans toward a construction of a will which will prevent intestacy, but the will must furnish the basis for such construction, and if the testator, through ignorance or inadvertence, fails to dispose of all his estate, the court cannot supply the omissions.</p> <p>5. Under a paragraph of a will, providing that part of a tract should be leased for twenty-one years, with a renewal of twenty-one years more, the net income to be divided equally between testator’s two daughters during their life and at their decease to their lawful heirs, the daughters, after they had passed the child-bearing period and when their nieces and nephews were their heirs presumptive, had an estate in the land for a term of years only, and did not take a fee under the rule in Shelley’s Gase that when the ancestor, by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance an estate is limited either mediately or immediately to his heirs in fee or in tail, “the heirs” are words of limitation of the estate and not words of purchase.</p> <p>6. Such paragraph did not carve out a trust estate in the daughters as executrices to last for forty-two years, the net income of which was to be paid them during their lifetime and upon their death and until the trust terminated to their heirs, as if the words “at their decease to their lawful heirs” related to the income and not to the corpus, but left the land to the executrices not to be sold for forty-two years in their lifetime, during which period they were to have the income, with remainder to their respective heirs-at-law as purchasers, the fact that the daughters survived the term of years created by the trust not altering the remainderman’s estate, but simply postponing its enjoyment; the daughters in the meantime having an estate for life by operation of. law.</p>

<p>1. Where an assignment of leases was recorded and the recorded inr strument delivered to the donee, there was a completed gift, notwithstanding the donor did not originally intend the gift to take effect until his death.</p> <p>2. A gift of his property and business by an aged man,' afflicted with fatal illness and unable to earn a living except through the business, to the wife of his adopted son, will not be upheld where the donor impoverished himself, unless he took independent advice; for, though the donor was in possession of his faculties and knew his own mind, the -donee, who was in the prime of life and to whom he owed a great debt of gratitude for her loving care, occupied the dominant position.</p> <p>3. Where an aged man, afflicted with fatal illness, gave all of his property to the wife of his adopted son, the fact that the scrivener who prepared the conveyance called to his attention that it would take effect during his life is not independent advice, it being apparent that the donor, who mistrusted the donee’s husband, did not realize that in case of her death before him the husband would take the property.</p> <p>4. Where a court of equity set aside, as improvident, a gift by an aged man to the wife of his adopted son, and the next of kin of the deceased took the property, they will be compelled to do equity and to compensate the donee for her care of the deceased and as well to pay a mortgage on the property, which she had discharged.</p>

<p>1. Where a husband, who was indebted, made deposits in the name of his wife, and on her death she left her property to him in the form of a spendthrift trust, he has the burden, as against his creditors, of proving his defence that such moneys were not his, but belonged to the wife.</p> <p>2. In a suit by a husband’s creditors to establish their claims in property devised and bequeathed to him by his wife, which had been acquired with moneys deposited by the husband in the name of his wife, evidence Held to show that the moneys belonged to the husband.</p>

<p>1. Evidence Held insufficient to show that defendant willfully deserted petitioner, and that the desertion was willful and obstinate and continued for two years.</p> <p>2. Intemperance and drunkenness is no justification for a wife deserting lier husband, and it does not amount to a constructive desertion' on his part.</p> <p>3. That a husband was inattentive to his wife, left her alone on holidays and during the evenings, is no ground for her deserting him, such conduct not constituting a constructive desertion.</p> <p>4. That a husband failed to support his wife does not justify her in leaving him, for she has her remedy under the Divorce act. 2 Gomp. Stat. 1910 p. 2088 § 26.</p> <p>5. In a suit for divorce, the husband is a competent witness on behalf of his wife.</p> <p>6. Where petitioner’s husband, who had been living apart from her, was called to testify in her suit for divorce, and he admitted he did not propose to again live with his wife, his testimony is to be jealously scrutinized.</p> <p>7. Where petitioner wrongfully deserted her husband, the fact that, though he lived within a short distance of her, he made no effort to have her return does not show an intention on his part to desert her from the beginning.</p> <p>'S. To entitle petitioner to a divorce her testimony as to the desertion of her husband must be corroborated, and corroboration of the fact of separation and the husband’s non-support is, insufficient.</p>

<p>1. In a lease of land for the life of the lessor, the lessee was given an option to purchase the land within one year after the death of the lessor. —Held, to be a conditional contract for the sale of the land, and enforceable against the devisees of the lessor.</p> <p>2. An option given to a lessee to purchase the demised land after the death of the lessor, is contractual and not testamentary, in violation of the statute of wills.</p> <p>3. An option to a lessee to purchase the demised land is not unilateral, and will be enforced in equity.</p> <p>4. An agreement for an option to purchase land, in effect, is that "the lessor will hold the land in reserve for the lessee during the stipulated period, and will convey it if and when the latter elects, and from this undertaking he cannot recede without the other’s consent.</p> <p>5. An option given to a lessee is a completed purchase of a right to have a conveyance if the purchaser shall choose to buy upon the terms named.</p> <p>6. No estate in the land passes under a covenant for an option to a lessee to purchase, but the purchaser acquires such an inchoate right therein as will, pending the option period, be protected in equity, and upon his complying with the terms of the contract, his equitable estate thereby acquired will be clothed in legal form.</p> <p>7. A covenant in a lease for an option to purchase relates to and runs with the land.</p> <p>S. An option in a lease to purchase the land after the death of the lessor, Held to be properly exercised by tendering the money to one of the devisees.</p> <p>9. Quaere. Is an option in a lease to purchase land exercisable only after the death of the lessor, a conversion of the realty from the date of the option? Lawes v. Bennet, 1 Cose Oh. 166, criticised.</p> <p>10. An option in a lease to purchase lands, is property, which may be transferred and enforced' by the assignee.</p>