Volume 86 — New Jersey Equity Reports

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

<p>On petition for divorce. On application to open decree nisi. Heard on petition and affidavits.</p>

<p>1. Where lands are conveyed in trust, with directions to pay the income to one for life, with remainder over, taxes on the land, including that which is unimproved, are payable from such income.</p> <p>2. Where a will devised land in trust, with directions that the rent be paid to testatrix’s husband for life and after his death to her children, there was no notional conversion of the property at her death, notwithstanding a provision of the will vesting in the trustees a discretionary power, thereafter exercised by them, to sell that part of the land which was unimproved.</p> <p>3. A notional conversion of land will not be referred to a time anterior to the time when conversion is directed by the will.</p> <p>4. The presumption of a notional conversion will not be indulged in where the will clearly shows testatrix’s intention in respect thereto.</p> <p>5. A provision of a will authorizing the trustees to advance to minor life tenants a portion of the principal bequeathed, whenever the trustees should deem it expedient in view of their “necessities, comfort or welfare,” did not authorize an advance of $5,000 from the principal to the mother of the minors, where it did not appear but that the share of the income being received by her and her other resources were sufficient to properly support and educate the minors, and it appeared that an annual allowance of the amount requested would, in a few years, dissipate the money given to the minors.</p>

<p>1. Where an executor assigned a mortgage to himself individually and then individually assigned it to a bank, the president of which was one of the mortgagors, as security for money which he represented he was borrowing to pay legacies, the bank was not obliged to see to the application of the money loaned any more than the president would have been had he paid it in cash, and the substituted executor is not entitled to recover possession of the mortgage from the bank after the original executor had misappropriated the proceeds.</p> <p>2. If the assignment of the mortgage by the executor to himself individually was void,- he still held it as executor and as such could assign it to anyone advancing money for the better administration of the estate.</p>

<p>On January 3d, 1908, it was resolved by the board of directors of a corporation that it was advisable to change and decrease defendant’s capital, consisting of preferred and common stock, to one class and kind without distinction or preference between any of the shares, and that the certificate of incorporation should be amended accordingly, and the formal proceeding was consummated in June, 1908, and was on its face regular. Its validity was not questioned or attacked at any time during its progress, nor was it questioned directly or indirectly until April 8th, 1911, unsuccessfully elsewhere. The complainants did not then attack it directly, but insisted, as they do here, that it did not affect them. They allowed nearly three years to elapse after the filing of the amended certificate before they took even that action. — Held, that the complainants by their delay forfeited the right to raise the question that they were exempted by contract from the operation of the proceedings, especially in view of the doubt thereby thrown over the three millions of debentures issued on the faith of the scheme of retirement, which operated equally upon all holders of stock.'</p>

<p>1. The general act entitled “An act concerning trust companies (Revision of 1899),” as amended by the act approved April 1st, 1913 (P. L. 1913 p. 282 ch. 171), is not unconstitutional in that it authorizes the commissioner of banking and insurance to take possession of the company’s property and business and to collect and distribute its assets on his own motion and without judicial warrant in case of insolvency.</p> <p>2. But the defendants are in no position to raise the objection. The property taken is the company’s, not the defendants’. If anybody is aggrieved it is the company, and the company does not complain.</p> <p>3. The trust company sues the defendants for the losses resulting from their negligence. The defendants answer that the company is being managed by one who has a legislative but not a constitutional warrant to do so; whether he has or not is irrelevant to the question whether the directors have failed in their duty. The law is settled that it is only in cases where a statute affects the rights of the parties to the proceeding that courts will pass upon the question of its constitutionality.</p> <p>4. The liability of the directors of the Roseville Trust Company is a joint and several liability. The agreement made with those who have settled is not, as far as appears, a technical release; but if it be, it contains a reservation of the right to sue, and so would not operate as a discharge of those who are not parties to it. It would, because of the reservation, still be construed as a covenant not to sue.</p> <p>5. That the allegations of the bill are “as circumstantial and definite as the rules of pleading require.” And the bill as a whole presents a clear case of negligence.</p>

<p>1. Extreme cruelty is not a ground for' a decree of absolute divorce in New Jersey.</p> <p>2. Evidence, in a wife’s suit for maintenance, Held to show that defendant’s absolute divorce ,in the State of Nevada had been fraudulently obtained on his false representations of his residence in that state.</p> <p>S. Jurisdiction of a court to grant a divorce cannot rest in the slightest degree upon the consent of the parties to the marriage, or both of them.</p> <p>4. A divorce suit is a “suit in rem,” the essential characteristic of which is found in the power of the state through the decree or judgment of its court to dispose of the subject-matter of the suit, the res, in accordance with the object of the suit, whether that subject-matter be physical property or the status of one or both of the parties litigant, which decree operates immediately and absolutely upon the status of the suitor which is the res in the suit without the necessity of execution, attachment or contempt proceedings to enforce it.</p> <p>5. The term “res” is one of somewhat wide content, and embraces not only lands and chattels, but also the status of individuals, as parent and child, husband and wife, guardian and ward, and also the status of an individual, as citizen and as a voter.</p> <p>6. A decree of divorce by a court in Nevada undertaking to dispose of the status in respect of marriage of spouses not resident in that state is a nullity, as that state is powerless either by an act of its legislature or by a decree of its court to fix the status of a person as married or unmarried when such person is only transiently commorant therein, as the spouse commorant there but actually resident in New Jersey has no power against that state to carry his status in respect of marriage from the State of New Jersey into the State of Nevada so as to subject such status to the power of the State of Nevada exercised through its court by an action quasi in rem.</p> <p>7. There is no principle of comity which interferes with the power of the State of New Jersey in accordance with its law, to deny the right of any court in Nevada to determine the matrimonial status of the defendant in this case, or to decree that he is an unmarried man unless he ceased to be a bona fide resident of New Jersey and became a bona fide resident of Nevada.</p> <p>8. Where a husband did not lose his residence in New Jersey and never became a bona fide resident of Nevada, and committed a fraud upon the laws of both states in falsely swearing that he was such bona fide resident of Nevada, the appearance of the wife in such suit and her litigation thereof did not give the Nevada court jurisdiction.</p> <p>9. There is no such thing as an action in personam for divorce, but every suit for divorce is necessarily an action in rem, or an action quasi in rem, in which the decree operates immediately and absolutely upon the res.</p> <p>10. Where the spouses are residents of different states there is a separate res which may be the subject-matter of a divorce suit in each state.</p> <p>11. Where a husband was a bona fide resident of Nevada so as to give its courts full jurisdiction therein of his status in that state in respect of marriage with a bona fide resident of New Jersey, who in good faith appeared and litigated the suit, this state, under the principle of comity, will permit the result of that suit in respect of the husband’s status in that state in many, but not in all, cases to determine the status of the wife in New Jersey.</p> <p>12. The requirement of the federal constitution that every state shall give full faith and credit to the judicial proceedings of every other state, does not expand the operation of a Nevada divorce decree which New Jersey must respect, but only compels New Jersey to recognize that the matrimonial status of a spouse resident in Nevada for all purposes within the State of Nevada, must be deemed as having been dissolved by a decree of divorce duly granted to such Nevada, spouse in a Nevada court as against the wife, a resident of New Jersey, and does not require New Jersey to recognize such decree as having any validity in New Jersey even although the wife appeared and litigated the Nevada suit in good faith, inasmuch as New Jersey need not allow its citizens to carry their matrimonial status to a foreign state and subject it to the decree of a foreign court except by changing their bona fide residence to that state, animo manendi; even after the plaintiff spouse became a bona fide resident of Nevada the wife's appearance and her bona fide litigation could not bring the Nevada decree within the full faith and credit clause, but would leave it to be treated as valid or invalid under the statutes and decisions of New Jersey.</p> <p>13. A case decides what the court in the discharge of its duty is obliged to and actually decides, and all else is "dictum."</p> <p>14. Under the Divorce act 1907 (2 Comp. Stat. 1910 p. 20J2 § S3), providing; that full faith hnd credit shall be given in all courts of the state to a decree of divorce by a court of competent jurisdiction in another state when its jurisdiction was obtained in conformity to the conditions prescribed in sections 5, 6 and 7 thereof, and that if any. resident of the state goes into another state to obtain a divorce for a cause arising while the parties resided in the state, or for a cause not a ground of divorce under the laws of the state, the decree shall be of no effect in the state, a decree of absolute divorce granted to a husband in Nevada, whence he had gone to obtain the divorce for a cause not a cause for absolute divorce in New Jersey, arising while they were domiciled in the state, as against the wife, never domiciled in any other state, was void.</p> <p>15. Such decree being void, the defendant, notwithstanding, was the husband of the complainant, charged with the duty of supporting her and subject to her action for non-support under the Divorce act 1907. P. L. 1907 p. m § 2ff.</p> <p>16. In a wife’s suit for maintenance under section 26 of the Divorce act, her release in consideration of $400 in full settlement of all her claims against the husband, agreeing to discontinue any suits against him, given after he had. obtained a fraudulent, and void decree of absolute divorce in another state, and when she was under great financial embarrassment and discouraged by her efforts to obtain justice from him, and greatly tempted by the opportunity of temporary relief, in view of its failure to provide for her future support, was not enforceable in equity, and hence no defence to the suit.</p> <p>17. All contracts between husband and wife are void in law, and in equity are only contracts sub modo, entirely within the control of courts of equity and are enforceable, especially against the wife, only to the extent to which they are equitable and fair.</p>

<p>On final hearing. On bill for relief.</p>

<p>1. An arbitrator who has signed an award should not be allowed to contradict his solemn act and testify against his award.</p> <p>2. Where, pursuant to terms of contracts of insurance, it was agreed that each party ^should appoint an appraiser, and that the two appraisers so appointed should appoint an umpire, to whom they would submit their differences, and that an award in writing of any two should determine the amount of loss, the signature of the umpire is without vitality unless and until the two appraisers have failed to agree.</p> <p>3. Where, pursuant to the terms of insurance contracts, two appraisers and an umpire were chosen and made an award as to the sound value of the property, which one of the appraisers signed without giving his consideration to or exercising his judgment on the subject, because he was told tfiat the appraisal of the sound value of the property was a mere matter of form, the award was invalid, since if, through fraud, accident or mistake, an award does not embody the real judgment of the parties who return it, because there has been no consideration or attempt at consideration, it is not their award nor a compliance with, the requirements of the agreement of submission.</p> <p>4. The court has no concern with errors of judgment on the part of appraisers making an award.</p>

On bill of judgment creditor to set aside lien of chattel mortgage for insufficiency of affidavit of' consideration. On hearing on return of order to show cause.

On bill by a receiver in insolvency to declare corporate stock unpaid and to procure and enforce an assessment for the payment of creditors.

<p>Where the property of a railroad in receivership is sold in foreclosure of receiver’s certificates under a decree that from the proceeds the cer-> tifieates be paid first, the proceeds are applicable first to pay in full the receiver’s fees and expenses, including counsel fees, and then to pay pro rata the receiver’s certificates on a par with claims against him for car service and damages to shippers.</p>

<p>On motion to charge sheriff with contempt.</p>

<p>The testator’s domicile of origin was France. He became a naturalized citizen of the United States in 1873, his domicile of choice being West Hoboken, New Jersey. He left a wife and two children in France, who are the complainants in this cause. In 1871 he obtained a divorce in this state and remarried, one son being the offspring of this second marriage. In 1896, having amassed a fortune of $300,000 he decided to take apartments in New York, as he was constantly attending different places of amusement in that city, almost every night in the week, and he did not feel strong enough to come back to West Hoboken at night. He made New York his headquarters, but was away, traveling in different parts of the world a very great part of his time. He, on many occasions, emphasized the fact that he was still domiciled in New Jersey. He died in Los Angeles, California, in 1908, where he had bought a house in his son’s name. — Held, that he never abandoned his domicile of choice, namely, West I-Iohoken.</p>

<p>Where the-delegates of two local labor unions to a national convention of the international union of which both locals were members, such convention having split into two conventions, each of which elected a full set of general officers, recognized one set of officers, and thereafter the locals sent delegates to another convention, held by the various' locals which had recognized such officers in conjunction with another national labor union, a relatively small percentage of the membership of the locals ratifying the decision of the convention to consolidate with such other national unionj suc'h minorities were not entitled to the funds of the original organizations.</p>

<p>1. Where a woman, desirous of rewarding her secretary’s gratuitous services, instructed the vice-president of a bank to buy the house in which the secretary lived for him, which was done, the woman giving the banker the cash to pay for the house, and the latter taking a deed in the secretary’s name, which he later sent to her, who had it recorded, and the woman’s last will, drawn after the gift of the house, for which $10,000 was paid, reduced the legacy to the secretary of more than $10,000 to $2,000, there was no resulting trust in the property, when purchased by the banker, in favor of the woman, so that her heirs were entitled to the property as against the secretary, the doctrine of resulting trust being founded upon the presumed intention of the parties, while the woman’s conduct showed no intention to create a trust in her own favor.</p> <p>2. To reward her secretary’s gratuitous services, a married woman could, from hpr separate funds, furnish the purchase-money for a house for such secretary, having the deed taken in his name, and by recording it give him good title, without her husband joining, despite the Married Woman’s act (3 Comp. Stat. 1910 pp. SBS2-3238), providing that nothing in the act should enable any married woman to execute any conveyance of her realty without her husband joining “as heretofore,” which did not change her condition relative to an equitable estate.</p>

<p>1. Evidence on a bill for tbe specific performance of an oral contract to live at another’s farm, take charge of the entire house on ceytain terms as to expense, and to care for him, in consideration of a devise of the farm — Held to establish such contract.</p> <p>2. To take an oral contract for the devise of land out of the prohibition of the act for the prevention of frauds and perjuries (2 Qen. Stat. 1895 p. 1608 § 5), it is necessary to establish by the clearest proof that the doctrine of part performance of parol contracts will apply.</p> <p>3. An oral land contract may be specifically enforced, notwithstanding statute of frauds (2 G-en. Stat. 1895 p. 1608 § 5), requiring a written memorandum, provided that certain steps have been taken, after the contract has been made, toward putting it into effect; but payment in services will not, as a general rule, take the contract out of the statute so as to demand a specific performance of the contract.</p> <p>4. Where an oral contract to devise land in consideration of services to be performed by the complainant could not be covered by the doctrine of part performance so as to take it out of the statute of frauds, the complainant’s remedy was on the quantum meruit.</p>

<p>A limitation over is void where the first taker under a will has the uncontrolled power of consuming and exhausting the estate.</p>

<p>A license granted under the Wharf act of 1851 (Oomp. Stat. p. 5856) is not executed by the stringing of piles along the dock line on either side of, and tied to, a pre-existing wharf; and the land thus enclosed is not thereby vested in the licensee.</p>

<p>1. Where complainant, who was of advanced age and whose hearing and vision were impaired, assigned a large portion of his property to de-' fendant, who occupied towards him a confidential relation, being his trustee, business adviser, and closest intimate, and complainant at that time had no independent advice, defendant has the burden of showing that the transaction was understood by complainant and that it was free and voluntary.</p> <p>2. In a suit to set aside a gift inter vivos, evidence Held insufficient to show that complainant understood the nature of the transaction or that it was voluntary.</p> <p>3. Where defendant, who was complainant’s trustee and adviser, coerced him into assigning a large portion of his property, that portion of the property given to defendant’s wife and children pursuant to complainant’s alleged desire may be recovered; such parties standing in no better position than defendant, to whom the assignment was made.</p> <p>4. Complainant agreed to make a will in defendant’s favor if he would act as his business adviser and personal intimate. Defendant faithfully discharged those duties, but, desiring security,. coerced complainant into assigning to him a portion of his property before death, and the defendant having discharged his obligations after the assignment, and the assignment not appearing oppressive, Quwre: Should not the complainant be required to do equity by compensating 'the defendant, Theodor, for the services rendered, before a re-delivery is ordered?</p>

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

<p>On petition for divorce. Demurrer to petition overruled.</p>

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

<p>Motion tot vacate an order restraining the sale of property on writ of fieri facias to satisfy the claim of an insurance company, which may prove to have no existence, the issues presented requiring a construction of the contract of insurance, &c., will be denied.</p>

<p>On bill for receiver, &c.</p>

<p>1. Where a contractor defaults, and his sureties complete the contract, they are entitled to be subrogated to the rights of the owner against the contractor, and against persons furnishing materials to the original contractor, to the extent necessary to reimburse them for their necessary outlay.</p> <p>2. The right of subrogation does not depend on any privity of contract, but is independent of any agreement, and rests upon principles of iiatural justice and equity. ' t</p> <p>3. Where the indemnitor of a surety on a contractor’s bond completed the contract after a breach by the contractor, either or both surety companies were subrogated to the rights of the borough against the contractor, with a right paramount to that of a materialman under a lien, in money retained on the contract price, since a surety who has paid or fulfilled the obligation has the same equity of subrogation as the surety to whom he was bound, and it is immaterial what instrumentalities a surety makes use of to fulfill its obligation.</p>

<p>1. Where mother seventy years old, in contemplation of death and while seriously ill and unable to fully comprehend the consequences, deeded to her daughter at the latter’s solicitation practically all her property without consideration and without independent advice, the deeds should be canceled for undue influence.</p> <p>2. While a conveyance from parent to child is not presumptively invalid for undue influence merely because of the relation of the parties, yet, where facts are shown establishing a confidential relation in which the child is the dominant party, a conveyance from the parent to the child is presumed to be tainted with undue influence, and the burden is upon the child to show otherwise.</p>

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

<p>On appeal to Salem county orphans court.</p>

<p>' 1. Every installment of permanent alimony paid by -a husband to his wife under a final decree therefor in the court of chancery, would be in execution of the decree pro tanto, the result being that any such paymenta pending appeal, wouid be an impairment of the subject of the appeal to that extent Or degree, and also an invasion of the appellant’s right to have his property preserved and not diminished during the contest in this court; and to protection from this he is entitled. The course which, as thus indicated, is required for the preservation of the fights of the appellant, is even more fundamentally required in order, that ■ the 'juris-1 diction of the appellate court may not be destroyed or impaired.</p> <p>2. This court has the power to award alimony pending an appeal — that is, alimony pendente lite. That jurisdiction is firmly established. But, an application to enforce a final decree for permanent alimony, pending an appeal, is not an application for alimony pendente Ute, which may be awarded here, or the parties remitted to the court of chancery to make application there.</p>

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

<p>1. A bill for mainteuance of the widow of the testator at a hospital, subsequent to the death of the testator, is not a proper claim against the assets of the estate in the hands of the executor, no authority for such expenditure being found in the will.</p> <p>2. Where an exception to a personal claim of an executor against the estate in his hands is treated by the executor before the master (to whom the matter had been referred), and in the orphans court, and in the prerogative court, as challenging the legality and correctness of the claim, it is too late for him to assume a contrary position in this court.</p> <p>3. In an executor’s account the burden of proving .items of discharge is upon the accountant.</p> <p>4. On exceptions to an executor’s account, the executor is not competent, when he offers himself asi a witness in his own behalf, to testify as to any transactions with or statements by the testator.</p>

<p>1. A beneficial society acquired no title to excess dues paid by the members thereof pursuant to an order of the court of chancery providing in effect that they be deemed involuntary payments to be returned if determined by the court to have been unlawfully exacted, it appearing that the court had so determined. Such excess fund will be deemed to be a trust fund held by the society for the benefit' of the members who paid it.</p> <p>2. The mere fact that not all of the members of a beneficial society who were entitled to á fund held by it for their benefit formally assented to the segregation of the fund and placing it in the hands of other trustees for their benefit, is no reason .for setting aside the transfer, since, in the absence of anything appearing to the contrary, it will be assumed that they all assented to an action so clearly beneficial to them.</p> <p>3. Where a beneficial society held certain unlawfully exacted excess due§ in trust awaiting the result of litigation, and instead of keeping it in the form of cash used it to pay death benefits, so that the death benefit fund became indebted to the excess fund, it was legitimate for the society to use the mortgages in which the deat¿ benefit fund was invested to discharge the known indebtedness of that fund to the excess fund.</p> <p>4. When a beneficial society used cash belonging to an excess dues trust fund to pay death benefits, keeping separate accounts so that the exact amount of the indebtedness of the death benefit fund to each member entitled to a share of the excess fund was capable of being ascertained, then, upon the same being so ascertained, it was proper for the society to pay the money due to the excess fund from the death benefit fund out of the assets of the latter.</p> <p>5. A beneficial society that uses to its own profit funds held in trust awaiting the result of litigation, is liable for interest on the amount at a rate conformable to the rate it would have had to pay if it had borrowed elsewhere the money for such use.</p> <p>6. By the statute (Comp. Stat.-p. 44% § 84), and independent thereof, where the complainant and defendant are each successful on one or more substantial issues, neither is entitled in the court of chancery to costs against the other.</p>

<p>On appeal from a decree of the court „of- chancery advised by Vice-Chancellor Griffin, whose opinion is reported in 85 N. J. .Eq. 476.</p>

<p>A bill setting up that complainant had parted with certain property upon the defendants’ undertaking to deliver as payment therefor certain endorsed notes which were executed and endorsed in complainant’s pres- • ence, and that on delivery of the property defendants gave him notes forged both as to signature and endorsement instead of the real notes, which they destroyed, and praying discovery and establishment of the true notes and payment of the moneys due thereon by the maker and endorser — Held, erroneously dismissed for want of equity or because of adequate remedy at law.</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.</p>

<p>1. The statute (Comp. Stat. p. 3169 § 16), which limits a mortgagee’s right of entry on the mortgaged premises to twenty years after the right has accrued, is not a bar unless the possession of the mortgagor and those claiming under him has been adverse and hostile to the mortgagee during the statutory period, and where the mortgagor or his grantees recognize the mortgage by paying interest or part of the mortgage debt, such act is plenary evidence that the possession is not adverse.</p> <p>2. To bar such right of entry upon the ground of adverse possession, non-payment of any part of the mortgage debt within the statutory period is not alone conclusive of an adverse holding. It is persuasive, but not controlling, and may be repelled by proof that the possession of the mortgagor was permissive and not adverse.</p> <p>3. If nG payment be made by the obligor on the bond, which a morti gage is given to secure, within the statutory limitation relating to such obligations, a payment by one not the obligor would not, at law, remove the bar of the statute as to the obligor, but a payment on the mortgage debt by a grantee of the obligor is a recognition of the mortgagee’s right to enter on default, and rebuts any presumption that possession is hostile or adverse.</p>

J. Eq. l&O. The complainants filed their bill in the court of chancery to restrain the prosecution of an action at law in the supreme court.

<p>On appeal from a decree of the prerogative court advised by Vice-Ordinary Iiowell. .</p>

<p>1. Where the vendee failed to perform on the day set, and did not prior thereto record his option contract, he could not thereafter compel specific performance in suit against the vendor only, who, on failure to perform and prior to recording the contract, sold to a third person without notice of the contract, such third person having in good faith and for valuable consideration acquired an equitable title.</p> <p>2. It is a settled rule of equity jurisprudence that, where the vendor is not the owner of the equitable title of the land which he has agreed to convey, a court of equity will not decree specific performance by such vendor.</p>

<p>William Runkle's will was dated May 11th, 1912; a codicil thereto was dated April 29th, 1913. The testator died January 31st, 1914. 1-Iis will and codicil were in an envelope endorsed in testator’s handwriting, “Hast will and testament of William Runkle;” by direction of the testator to his secretary, she gave the envelope to William E. R. Smith, after testator’s death. The will showed that the name “Wm. E. R. Smith” had apparently been written over an erasure of the name “Randolph Rodman,” the word “East” over an erasure of the word “South.” On the margin of the paper was written, “Wm. E. R. Smith to be executor.” The intention of the testator being clear, the court will lay hold of slight circumstances to give legal effect to such intention. — Held, in this case, that letters testamentary should be issued to William E. R. Smith, as executor, and. not to Randolph Rodman, the alteration having been made before the execution of the codicil.</p>

<p>1. The term “other process,” as used in section 4 of the Landlords and Tenants act, providing for a preference in favor of the landlord for one year’s arrearage of rent out of the goods and chattels of the tenant on the demised premises and taken by virtue o£ any execution, attachment or other process, includes an order of the court of chancery appointing a receiver for an insolvent corporation-tenant and directing such receiver to take possession of said goods and chattels and to convert them into money. Citing Wood v. MoCwrdeU eft oí., 49 N. J. Eq. 488.</p> <p>2. The preference created by section 4 of the Landlords and Tenants act does not constitute a lien prior to the “taking” by execution, attachment or other process therein referred to, but only a statutory provision in the nature of an inchoate lien which may be defeated by certain acts of the tenant himself prior to such “taking,” and which does not become effective at all should such “taking” never occur. Citing Woodside v. Adamis, 40 N- J- Law Jlf.</p> <p>3. The act of 1892 (subsequently embodied in sections 83 and 84 of the 1896 revision of the Corporation act), giving a lien prior to all other-liens (except mortgages of real estate and chattel mortgages fulfilling certain specified requirements) to employes of insolvent corporations for unpaid wages during two months before the institution of the insolvency proceedings, modifies section 4 of the Landlords and Tenants act (passed in 1877) to the extent that it makes the landlord’s right under the provisions of that section to be paid one year’s arrearage of rent out of the goods and chattels on the demised premises, subject to the superior right or lion of the employe of an insolvent corporation-tenant for two months’ unpaid wages as secured by sections 83 and 84 of said Corporation act.</p>

On caveat against probate of will. The will was admitted to probate by the surrogate of Hudson county, and on appeal therefrom by the caveator, the orphans court of that county decreed the dismissal of the appeal. Prom that decree the caveator appealed to the*prerogative court, which affirmed the decree of the orphans court. Probate was contested by testator’s brother John.

<p>On appeal from a decree of the court of chancery advised by Advisory Master John Franklin Fort, reported in 98 Atl. Rep. ■ 857.</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 Griffin, whose opinion is reported in 85 N. J. Eq. Jfd9.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, whose opinion is -reported in 85 N. J. Bq. 868. '</p>

<p>On appeal from a decree of the conrt of chancery advised by Vice-Chancellor Griffin, whose opinion, is reported in 85 N. J. Fq. Jf€6.</p>

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

<p>On appeal from' a decree of the court of chancery advised by Vice-Chancellor Griffin, whose opinion is reported in 85 N. J. Eq. 425; sub nomine Grimminger v. Alderton et al.</p>

<p>On appeal from' a decree of the court of chancery advised by .Vice-Chancellor Lewis, whose opinion is reported in 85 N. J. Eq. 85.</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. UU.</p>

<p>On appeal from a decree-of the court of chancery advised by Vice-Chancellor Stevenson, whose opinion is reported in SB N. J. Eq. 32.</p>

<p>On appeal from a decree of the .court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported ante p. ®6.</p>

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

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 85 N. J. Eq. 881.</p>

<p>On appeals from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 8J¡- N. J. Fq. 271.</p>

<p>On appeal from a decree of tlie court of chancery advised by Vice-Chancellor Lewis, whose opinion is reported mte p. 88.</p>

<p>On appeals from a decree of the prerogative court, reported in 97 Atl. Rep. £96.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 86 N. J. Eq. 7.</p>

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

<p>On motion for an order of reference fo a master.</p>

<p>1. A receiver, being an officer of the court, and at all times subject to its direction and orders, may on suitable occasions, when confronted with questions of intricacy or difficulty, apply to the court for instructions and advice with reference to the discharge of his duties.</p> <p>2. A receiver represents all interests, and, under the direction of the court, manages the property for the benefit of all concerned.</p> <p>3. When a corporation of this state is in the hands of a domestic receiver, but has assets in the State of New York, in which jurisdiction a receiver has been appointed for the benefit Of creditors residing in that state, and its court, as matter of comity, directs its receiver to give the receiver in this state a proxy to vote the capital stock in a New York corporation for directors of that concern, which capital stock is owned by the insolvent New Jersey corporation, comity requires of this court a direction to its receiver to give minority representation on the board of directors of the New York corporation in the interest of New York creditors and stockholders of the insolvent New Jersey corporation.</p>

<p>On application for counsel fees, costs and expenses.</p>

<p>Partition is a matter of right only when the complainant is sui juris. No one has a right to file a bill for partition as next friend of an infant unless it is made to appear upon the face of the Kill that partition or sale of the premises would operate for his benefit; and, if such allegation be made, the reference master will be required to take testimony and report whether or not' such partition or sale would operate to the benefit of the infant complainant.</p>

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

<p>1. At common law, before issue born alive, the husband had an estate of freehold1 in his wife’s lands during their joint lives, and after such issue born, he acquired an estate of freehold in possession in those lands which continued for Ms own life. His interest was termed an estate by the curtesy initiate during the wife’s life, and consummate on her death.</p> <p>2. The Married' Woman’s act of 1852 deprived the husband of an estate by the curtesy initiate, that is, an estate of freehold during his wife’s lifetime, but did not affect the estate which he took upon her death. On the happening of that event he became entitled to a freehold estate in possession for the remainder of his own life, if there were issue born alive. And a wife cannot deprive her husband of such an estate by deed or will.</p> <p>3. A husband’s estate by the curtesy is not affected by section 7 of the supplement to the Descent act (P. Is. 1915 p. 61) if the marriage took place before that act went into effect on July 4th, 1915.</p> <p>4. A husband, after issue born alive, has a vested estate in remainder in his wife’s lands. This we now call an inchoate right of curtesy.</p> <p>5. While a husband, whose wife has not borne a child, has neither an estate by the curtesy initiate nor an inchoate right of curtesy in his wife’s lands, he has, nevertheless, a contingent estate in remainder in those lands; because, upon the happening of the contingency of issue born alive and of the husband surviving the wife, he would be entitled to an estate by the curtesy consummate, that is, a freehold estate in possession for the remainder of his life.</p> <p>6. An estate by the curtesy at common law depends upon four essentials, (1) that the wife be seized of an estate of inheritance to which issue of the marriage may possibly succeed as heir of the wife, (2) that the estate be or become, during coverture, an interest in possession, (3) that seisin in deed (less properly styled actual seisin) be obtained during coverture, and (4) .that issue be born alive. The transpiring of these four events constitute the contingency upon which an estate by the curtesy arises, that is, vests, in the husband in possession upon his wife’s death.</p> <p>7. A husband and wife executed1 mortgages upon her separate real estate which were foreclosed and produced surplus money, which retains the character of real estate for the purpose of succession and distribution, and the wife filed a petition praying for the payment of the surplus to her, without making her husband a party thereto and without averring whether or not issue had been born to the parties.- — Held, that in these circumstances the husband- is a necessary party to the proceedings as he is entitled- to be heard- on the question whether, having a contingent estate in remainder in her lands, he is entitled to have the surplus money protected and conserved to admit of his possibly succeeding to the enjoyment of it after her death.</p> <p>8. Even assuming that a husband has no interest whatever in his wife’s lands during her life before the birth of issue, nevertheless, on her petition for the proceeds of the sale of those lands, which are real estate for the purpose of succession and distribution, a presumption that there has been no issue born cannot be indulged in her favor, for his position may not be made worse by implication; besides, a presumption cannot be indulged in her favor on the face of the petition, as it is a rule that in construing a pleading that, view must be adopted which is most unfavorable to the pleader.</p> <p>9. Qumre: Can a wife, who has not borne her husband a child defeat his possible right to inchoate curtesy, and, ultimately, consummate curtesy, by reason of the involuntary sale of her land under execution producing surplus money, which money retains its character as land for the purpose of succession.</p>

<p>1. Inheritance Tax law (1¡. Oomp. Stat. 1910 p. 5306 § 543), section 7, provides that any executor or trustee having charge of any legacy or property for distribution subject to the tax shall deduct the tax therefrom, or, if the legacy or property is not money, shall collect the tax thereon upon the appraised value thereof from the legatee, and shall not deliver any legacy until he has collected such tax. Testator bequeathed to his wife $100,000 and certain household effects, &c., and his home property in trust for life, or until remarriage, with remainder to certain children of his deceased brother, and also devised $100,000 in trust for investment and to use the' income to meet the taxes and other charges on the home property till sold, and to pay the balance of the income to his wife, and gave the residue of his estate to a brother and to the issue of his deceased brothers, and provided that certain provisions should be first carried out. — Held, that' the inheritance tax paid by the executors was payable out of the property left the wife, and not out of the residue.</p> <p>2. Where testator devised his homestead in trust for the use of his wife, and a certain amount in trust to meet the charges upon it, and then to pay the net income to her, the executors had no interest in the realty devised, and their only duty .as to amount held in trust was to pay it over to the trustee after deducting the tax.</p>

<p>The law court possesses summary jurisdiction of equitable nature to control its own process of execution, and until it has been finally executed and such court cannot give other relief, chancery will not enjoin execution on the mere ground that a description of the property in the notice of sale is inadequate.</p>

<p>1. An attorney who occasionally collected the interest on mortgages left in his office, and advised the owners regarding other loans, Held unauthorized to sell them.</p> <p>2. An owner of mortgages does not lose title to them by a forged assignment.</p> <p>■ 3. The deposit of mortgages with an attorney of good professional and business standing is not negligence, and does not estop the owners from attacking his fraudulent assignment of them.</p> <p>4. Where an attorney prepared an assignment of certain mortgages belonging to his clients and attached to it a sheet bearing the clients’ signatures, which he obtained in some unexplained manner, the clients were not estopped by the attorney’s possession of their signatures from attacking the assignment.</p>

<p>On a bill by the assignee of a second mortgage to foreclose, claiming that it was a first mortgage lien superior to mortgage of one who had loaned the mortgagor the money to pay off a first mortgage, and who claimed under an agreement between complainant and himself, subordinating complainant’s mortgage to the first mortgage, and also as an assignee of the first mortgage, where such mortgagee and assignee claimed that, though made a party defendant, he had never had any process served upon him, or any notice until the final decree of foreclosure and the advertisement of the property for sale, the final decree will be opened and his executors permitted to file a cross-bill.</p>

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

<p>1. The statutes of limitations do not run on the claim of one spouse against the other during the continuance of the marital state.</p> <p>2. A presumption of payment does not arise from the lapse of twenty years of non-payment of claims held by one spouse against the other during the marriage state.</p> <p>3. A partial payment of a debt or a valid acknowledgment of it, made after twenty years from the due date, effectually overcomes the presumption of payment arising from efflux of time.</p>

<p>Specific performance will not be decreed of a contract which fails to express the true agreement of the parties, when such failure was brought about by the efforts of the complainant to overreach the defendant.</p>

<p>A bequest in trust for “the furtherance of 'the broadest interpretation of metaphysical thought” is for a charitable use and not invalid for indefiniteness.</p>

<p>1. In a husband’s action- for divorce on ground of adultery, evidence Meld circumstantially to prove defendant’s guilt.</p> <p>2. A husband’s desire to be rid of his yife, allowing her to pursue her own course, and failing to prevent her from committing adultery, is not such connivance as prevents him from securing a divorce.</p>

<p>1. A betrothal and a nuptial contract or certificate, made according to the Hebrew faith, whereby the husband bound himself and his heirs for the payment or contribution to the dower of an amount equal to that brought in by the wife, and as security therefor pledged all of his present and after-acquired possessions, without disclosing to whom or when the dowry was to be paid, was not an enforceable obligation between the husband and wife.</p> <p>2. Such contracts created no trust on the part of the husband in favor of the wife.</p> <p>3. Under such contracts, imposing obligations on the husband by operation of the laws governing the Hebrew race, of which obligations the contract was only partly evidential, and where such laws and customs were not put in evidence, the court could not take judicial notice of them, even though they were in concrete form and it knew where to find them.</p> <p>4. Under the common law, the wife’s property passed to the husband by virtue of the marriage contract, her compensation being her dower.</p>

<p>Where complainant foreclosed his first and fifth mortgages, making the second, third and fourth mortgagees parties, and the premises realized a sum insufficient to pay the second, third and fourth mortgagees after satisfying the complainant’s first mortgage, complainant is not entitled to have the receiver collect the rents and apply the same in favor of his subsequent encumbrance.</p>

<p>On petition for construction of will. Heard on bill, petition, answers and stipulation of counsel as to facts.</p>

<p>1. In a creditor’s suit, evidence Held to. show that the debtor’s equity of redemption in a chattel mortgage had been bought in by the mortgagee at a valid public foreclosure sale. t</p> <p>2. Judgment creditors of a chattel mortgagor are barred by laches from questioning, after six years, the validity of the mortgagee’s foreclosure and buying in of the equity of redemption, where the mortgagee could not be placed in the position she' occupied at the time of sale.</p> <p>3. Where an execution levy was made in 1904, but not enforced, and in 1906 and 1911 new levies were made, the 1904 levy was abandoned.</p>

<p>A devise to J. of the farm on which she is living “lying in O. township,” includes a tract of woodland always treated and used as part of the farm, for farm purposes, and otherwise undisposed of, and on which testatrix for years after making the will, paid taxes, in connection with and as part of the farm, to O. township, though by division of O. township such tract was in another township; the words “O. township” being rejected, as to it, as partial misdescription.</p>

<p>1. Clauses of policy provided that the insurer should not be liable for a greater proportion of loss than its policy bore to the entire amount of insurance, and that if it paid to the mortgagee any loss, and claimed that as to the mortgagor no liability existed, it should be subrogated to the rights of the mortgagee, and might pay the mortgage and hare an assignment thereof, but that no subrogation should impair the mortgagee’s right to recover the full amount of his claim. The policy issued to the mortgagor and contained the standard mortgagee clause. Other insurance was taken, and on loss the other insurers paid their proportionate share. The defendant insurer without denying liability to the mortgagor paid the mortgagee the amount of his judgment, which exceeded its proportionate share of the loss and took an assignment of the decree. — Held, that the insurer, having failed to provide for contribution as to the mortgagee, was liable for the payment made and could not recover the excess from the mortgagor.</p> <p>2. The mortgagor could not recover from the insurer the difference between the face value of the policy and the amount paid the mortgagee; the liability to her having been discharged by payment of a greater amount than she herself could have recovered.</p>

On order to show cause why injunction should not issue. Heard on bill and affidavits of complainant and answering affidavits of . the defendants.

<p>Under the law of New York governing an alleged gift inter vivos of a policy of life insurance, the delivery, whether actual or constructive, must be such as to divest the possession and title of the donor beyond his power to recall and to vest the donee with the control and dominion over the subject-matter of the gift, so that, where neither the policy nor the assignment thereof was delivered to the alleged donee or to anyone for her, but the donor retained possession of them and control over the policy and its proceeds and paid the premium, there was no completed gift of the policy.</p>

<p>1. A covenant or agreement restricting the use of lands in favor of or ,on account of other lands creates an easement upon the land subjected to the restriction.</p> <p>2. The existence of an easement upon premises conveyed is a breach of a covenant against encumbrances.</p> <p>■3. Knowledge by a grantee, at the time of delivery of the deed, that there are outstanding encumbrances upon the property conveyed- is no bar to his right of action on the covenant against encumbrances.</p>

<p>An order of the chancellor authorized a receiver of railroad property to issue certificates of indebtedness, which should be a first lien “in preference to any mortgage, judgment or other liens or claims.” — Held, that the allowance to the receiver and his counsel had priority over such certificates which in turn had priority over claims for operating expenses.</p>

On appeal of George H. Lambert, surviving executor, from decree of the prerogative court.

<p>On appeal from an order of the court of chancery advised .by Vice-Chancellor Learning and reported ante p. 59.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell and reported in 83 N. J. Eq. 182.</p>

<p>The bill of complaint prayed for the reformation or cancellation of a contract between husband and wife, through her trustee, providing support for the wife and child, because by inadvertence the agreement failed to include the true agreement between the parties; and also prayed for an injunction to stay the proceedings in a suit at law, brought by the trustee to collect arrears due to the wife upon the agreement. — Held, that a preliminary injunction staying the suit at law was improperly ordered, since the allegations of the bill were fully met by the answer, and neither the pleadings nor proof, upon which the order was made, presented a case showing either an urgent necessity for an injunction, nor the probability of irreparable injury resulting because of failure to issue it. ,,</p>

<p>On appeal from the court of chancery.</p>

On appeal of Mary Elizabeth Dennis et al. from a decree advised by Vice-Chancellor Howell, who filed the following opinion: The bill in this case was filed to obtain a construction of the will of Alfred L. Dennis, late of Newark, who died December 8th, 1890. He left four sons and one daughter, whose names are, respectively, James S. Dennis, Frederick S. Dennis, Samuel S. Dennis, Warren E. Dennis and Mary Louise Bell.

<p>On appeal from a decree advised by Vice-Chancellor Foster, whose opinion is reported in 97 Atl. Rep. 956.</p>

<p>On appeal .from a decree of the court of chancery advised by Vice-Chancellor Griffin and reported ande p. 356.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens-and reported cunte p. 10.</p>

<p>On appeal from a decree of the court of chancery reported in 85 N. J. Eq. Jf.09.</p>

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

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

<p>On appeal from a decree in the court of chancery, dismissing complainant’s hill, by Vice-Chancellor Lewis, reported ante p. 92.</p>

<p>On appeal from an order of the court of chancery advised by Yice-Chancellor Stevenson and reported in 85 N. J. Eq. SOS.</p> <p>Appeal of William M. Schultz.</p>

<p>On appeal from an order of the prerogative court advised by Vice-Ordinary Learning, whose opinion is reported in 85 N. J. Fq. llJh</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes and reported in 85 N. J. Fq. F86.</p>

<p>On appeal from a decree in the court of chancery advised by Vice-Chancellor Learning and reported in 85 N. J. Eq. 55.</p>

Later, while the certificate was in his wife’s possession, he obtained a new certificate payable to his son. Held: that (1) the member had the right to change the beneficiary and that an affidavit by the member, submitted to the Arcanum to procure the change of beneficiary, setting forth the loss, or ignorance of the whereabouts of the first certificate, even if false, did not affect the legality of the second certificate as between the…

All of these bonds are owned by the defendant the Bethlehem Steel Company, and the bill alleges that as such owner the said company requested the complainant to foreclose the second mortgage to secure the sixty-seven bonds by reason of default in the payment of interest.

On appeal of the Bethlehem Steel Company. On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell, who filed the following opinion: As I read the statute relating to counsel fees (P. L. 1910 p. 1/-27), this court is authorized to make allowances by way of counsel fee to successful litigants only, and it was so held by Vice-Chancellor Learning in Sparks v. Ross, 82 N. J. Eq. 121.

The facts are these: Marks Brooks was the owner of lands in Essex county which he caused to be conveyed to' one Joseph Levy, of Brooklyn, as trustee for his wife, Celia.