Volume 87 — New Jersey Equity Reports

On application of Dominion Mining and Manufacturing Corporation for restoration of its property to defendant corporation and for discharge of receiver.

<p>On application for confirmation of sale.</p>

On petition of selling master for leave to pay liens out of proceeds of sale in partition, the lien holders not being parties, and there being no direction in. the decree for such payment.

<p>On report and petition of receiver praying an adjudication of contempt and punishment therefor against certain persons.</p>

<p>On application to open decree and let in defence.</p>

<p>1.. It is improper to propound a question to a witness, the answer to which would be a conclusion of law.</p> <p>2. The gravamen of a complaint may not be proved by an omnilms question, which would, in and of itself, permit a witness to establish the'case; that-may only be done-by questions calling for facts, which should not be leading questions or call for conclusions.</p> <p>3. A witness, not an expert, may, in a case of insanity, state facts as to the actions of an alleged lunatic, and then tell what, in his or her opinion, they indicate as to soundness or unsoundness of mind.</p> <p>- 4. The judgment of a court cannot be proved by parol.</p> <p>5. Parol evidence of the contents of a written instrument is inadmissible where the instrument itself can be produced.</p> <p>6. The quantum of an,estate may be proved by showing the muniments of title to the owner’s property, real or personal, except as to property, if any, to which there is no paper title; and as to that parol evidence may be given.</p> <p>7. A'witness is not competent to prove the value of property without showing he has expert knowledge of its worth.</p> <p>8. The rules of evidence which do not permit of leading questions, characterizations, hearsay and conclusions, and which require that facts only may be testified to by witnesses, leaving all inferences to be suggested by way of argument and to be decided by - the court, apply as well to eco parte cases as to litigated ones.</p> <p>9. In eco parte cases the court represents the absent defendant, to the extent at least of seeing to it that he is condemned only upon a proper case being made out by legal evidence.</p> <p>10. A defendant who does not contend against a plaintiff’s demand has the right to presume, and to rely upon the presumption, that no judgment will pass against him unless the adversary party shows himself entitled to it by the strict rules of law.</p>

<p>1. In the law of real estate “descent” means hereditary succession to the title to lands by heirs-at-law on the death of an ancestor.</p> <p>-2. Estates of dower and curtesy arise out of the marriage relation and ■ become consummate in wife and husband, respectively, upon the death of the other spouse, but do not descend to those persons.</p> <p>3. The act of March 3d, 1915 (P. L. 1915 p. 61), entitled “An act amendatory of and supplemental to ‘An act directing the descent of real estates,’ approved April 16th, 1846,” which in terms abolishes estates and interests of dower and curtesy, violates article 4, section 7, plaeitum 4 of the constitution of New Jersey, which provides inter alia that “every law shall embrace but one object, and that shall be expressed in the title,” and is therefore null and void so far as it abolishes dower and curtesy—as the single object expressed in the title of the act concerns only the descent of real estates, and dower and curtesy do not descend.</p>

<p>1. Whore a testatrix by her will devised and bequeathed her real and personal property to her husband for life and on his death to her heirs-at-law -for distribution according to the laws regulating the descent of realty, testatrix’s daughter took a vested remainder in fee on her mother’s death, which on the daughter’s death intestate vested in her heirs-at-law; the words “on his death” merely denoting the period at which the remainder was to take effect in possession.</p> <p>2. The word “corporations” in the will under consideration is broad enough to include a municipal corporation.</p> <p>3. The city of Newark under the terms of its charter, has capacity to take real and personal property..</p> <p>j 4. While a donee of a power may not exceed the authority conferred | he may, unless restricted, appoint a lesser estate.</p> <p>/ 5. City of Newark may accept a gift of land for the purposes of a park, even though it is empowered to use park lands for any other public use, since, if that were done, the gift would revert to the heirs of the donor.</p> <p>6. Under the language of the will in question, and the facts of this case, Held that the intention of the testatrix to exercise her power of appointment clearly appeared.</p>

<p>Where an agent took a deed in escrow to be delivered to his principal upon payment of a certain sum, his agency did not incapacitate him from holding the deed in escrow.</p>

<p>On bill and answer.</p>

<p>Under the language of the will in question, the executors therein named have no general power of sale of real estate, but as to those shares of the estate given to them as trustees to be “reduced to personalty” there is a necessarily implied power of sale of real estate.</p>

<p>On final hearing on bill to set aside assignment of mortgage.</p>

<p>1. A fraternal order, organized as a voluntary association and after-wards incorporated, and the incorporation later dissolved, is not after the dissolution revived as a voluntary association.</p> <p>2. Under the facts in this case—Held, the call issued for the organization of a new grand body was sufficient and such grand body was properly organized.</p> <p>3. Under the facts in this case—Held, that whether the state organization was a corporation or. not, the organization of the new grand body was authorized as essential to the purpose of the order.</p>

On final hearing on bill for 'construction of will of Joseph Ogden Cuthbert and cross-bill for partial distribution of trust estate.

<p>On bill for relief. On bearing on motion to strike out.</p>

<p>1. Injunction will lie to prevent entry of judgment at law on an undisputed claim against a corporation, which has been dissolved, whose assets are a trust fund for distribution to its creditors.</p> <p>2. This court has jurisdiction over the trust created by the voluntary dissolution of a corporation, because of its inherent jurisdiction over trusts.</p> <p>3. Where a creditor of the corporation will not be injured by restraining the entry of judgment, nor obtain any advantage by such entry, but the administration of the trust will be interfered with by the entry of the judgment, the injunctive relief sought will he granted.</p> <p>4. The endorsers on a note given by. a dissolved corporation were not entitled to a preliminary injunction restraining entry of judgment against them where it appeared that such action would be a substantial detriment to the creditor’s legal rights; their equitable rights cannot be invoked to substantially prejudice the legal rights of others.</p> <p>5. Section 94 of the Corporation act does not prevent entry of judgment against directors of a dissolved corporation as endorsers on a note of the corporation though the affairs of the corporation have not been wound up.</p>

<p>On final hearing on bill to reform a policy of fire insurance.</p>

<p>Under the facts in this case—Held, that the purchaser of land at sheriff’s sale under execution should reconvey the land to the judgment debtor on terms, as the debtor was ins'ane when the transaction on which the judgment, execution and sale were founded was consummated.</p>

<p>On bill, &c. On pleadings and proofs.</p>

<p>1. The exercise of powers conferred by will is controlled by the law of the testator’s* domicile, notwithstanding the election of a foreign trustee and possession of the fund outside of the state.</p> <p>2. Whether the donee of a power duly executed it depends on her intention as gathered from the terms of her will.</p> <p>3. To determine whether or not the donee intended to execute the power by her will, the only .testimony admissible is that showing the actual conditions of the donee’s estate and of the trust fund, as distinguished from what she thought they were.</p> <p>4. Parol evidence of a testator’s declarations to show his intention or understanding of his will different from its legal significance, is incompetent.</p> <p>5. General residuary bequests of “my estate” refer to the testatrix’s own estate, and not property over which she had a power of appointment.</p> <p>6. The revocation by codicil of the execution of a power before that time three times exercised, is evidence that the testatrix did not intend to exercise it by her last testamentary act.</p>

<p>1. One in peaceable possession may maintain an action to quiet title to land.</p> <p>2. The recitals of an attestation clause of a will that the testator signed, sealed, declared and published it in the presence of two attesting witnesses, raises the presumption that all of these acts were done, as the signing was done, at one and the same time.</p> <p>3. A duly-exemplified copy of a will proved in another state is admissible in evidence to establish the title to land.</p> <p>4. Under the provisions of the will in question—Held, that the testator’s wife might, if necessary for her maintenance, convey a fee in lands in' which she was given a life estate.</p> <p>5. Under the evidence in this ease, the conveyance of the homestead in fee cannot be upheld.</p>

<p>1. On motion to strike out a hill for want of jurisdiction, the allegations of the bill must be taken as true.</p> <p>2. In a case of actual fraud, as shown by the bill, the contract between the corporation and its promoters could not shield the stockholders from responding to creditors.</p> <p>3. Unpaid stock subscriptions are collectible by a receiver after insolvency, and are not dependent on adjustment of equities between stockholders.</p> <p>4. A judgment in personam can be rendered only on personal service of a defendant, therefore an action to recover unpaid stock subscriptions of a resident of New Jersey cannot he brought in New York even if that state is the corporation’s domicile.</p>

<p>1. A claimant of a mechanics’ lien against a municipality must substantially comply with the requirements of the Mechanics’ Lien act.</p> <p>2. Verification of a lien claim by the secretary of the claimant to the best of his knowledge, information and belief, is sufficiently specific.</p> <p>3. A claim for more than is actually due will not defeat the lien unless it is knowingly and consciously excessive and untrue.</p> <p>4. Failure to give statutory notice to the city cannot be raised on a motion to dismiss a bill.</p>

<p>1. A contract by a railroad company to carry the complainants for life over its railroad, in consideration of a grant of land for a right of way, violates the Utilities act of 1911, and will not be specifically enforced.</p> <p>.2. After foreclosure and sale of the real estate of a railroad, such an agreement is not binding upon the new owner of the land.</p>

<p>On petition, &e.</p>

<p>1. Rights of curtesy and dower are favored in the law and will not be extinguished except by unequivocal words.</p> <p>2. Where a decree of divorce a mensa et thoro contained a requirement that the husband would release his curtesy in the property of his wife on demand, after the death of the wife her heirs could not enforce such action by him, the obligation being personal between the parties.</p>

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

<p>1. Under the facts in this case the compromise' agreement will not be set aside, the complainant being guilty of laches.</p> <p>2. It will not be set aside because the counsel of the complainant had given her mistaken advice, the facts upon which said advice was founded being all the time in the possession of the complainant.</p>

<p>1. A joinder by a wife in a conveyance by a solvent husband releasing her dower, is sufficient consideration for a reconveyance to the husband and wife jointly of a part of the same land.</p> <p>2. A reference to a master is necessary to determine the respective contributions of the husband and wife to the improvements on the land.</p> <p>3. The evidence of the defendants as to the disposition of the consideration for the conveyance held so improbable as to be unworthy of belief.</p>

<p>On bill and answer.</p>

<p>1. The holders of certificates for lots sold and the trustees of the defendant cemetery association are necessary parties to a suit to restrain a cemetery association from applying the' proceeds of lots sold according to a trust agreement.</p> <p>2. Bliss v. Linden Cemetery Co., 81 N. J. Eq. 394, approved and followed.</p>

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

<p>1. Under the law of New York the bankers’ lien upon deposits for money loaned the depositor is recognized.</p> <p>2. A court of equity in one state may restrain persons within its control from prosecuting suits in another state on a proper occasion.</p> <p>3. A resident of New Jersey appointed assignee for the benefit of creditors by the courts of New York will not be enjoined by a New Jersey court from prosecuting a claim against a New Jersey corporation in the New York courts.</p> <p>4. The assignee has a clear right to chose the forum of his action. ■</p> <p>5. A further objection to injunctive action in this case is that if the assignee should resign his appointment in New York the injunction would be futile.</p>

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

<p>1. Under the facts proved in this case—Held, that there was no agreement on complainant’s part to make no complaint of the noise made by a church clock in striking the hours.</p> <p>2. Evidence held to show that such noise was a personal annoyance and discomfort to complainant sufficient to entitle him to relief.</p> <p>S. Where complainant had moved into his residence some time after the bell had been installed and rung for ordinary church services, he could not restrain such ringing as a nuisance, but the striking of the hours on the clock will be restrained.</p>

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

<p>1. It is within the power of a court of equity to appoint a receiver for a corporation not insolvent:</p> <p>(a) \Yhenever, because of gross abuse of trust, or dissension among the members of the board of directors or the stockholders, or the absence of a properly constituted board of directors, or because the company has failed of its purpose, there is a necessity for judicial intervention, a court of equity may under its general powers appoint a receiver and'grant such other relief as may be necessary.</p> <p>(5) A court of equity may, if it appears that the business of a solvent corporation cannot continue to be properly conducted by reason of the fact that no proper competent board of directors can ever be elected (as for instance, if the .stock must continue in control of those convicted of gross fraud in the management), under its general equity powers actually wind up the business and distribute the assets. —"</p> <p>2. A majority of the stockholders, no matter how large, has no right to divert to themselves assets of the company to the detriment of creditors and other stockholders. ^</p> <p>3. lYhen they fraudulently attempt to do so they become to all intents and purposes trustees.</p> <p>4. The acts done by a majority of the stockholders in this case create a situation where the appointment of a receiver, on petition of the minority stockholders, is proper.</p> <p>5. No stay" of appointment of a receiver in the interest of the stockholders should be granted where there was evidence that the purpose of applying for it was to commence proceedings in another state to deprive this court of jurisdiction.</p>

<p>1. In proceedings for the dissolution of a corporation apparently solvent, the trustees have no right to make preference of one creditor over another. It may turn out that the assets will not be sufficient to settle all the debts.</p> <p>2. This court has no control over non-resident trustees in the dissolution of a corporation, and must operate against them through.the courts of another state.</p> <p>3. Where trustees on dissolution have made payments to creditors which may result in preferences', and are non-residents, the court will appoint a receiver even if no actual fraud be shown.</p>

<p>1. Where a trustee knew that he could obtain a dividend for his trust fund and neglected to do it, he was guilty of neglect and chargeable with the amount he neglected to collect.</p> <p>2. He is also chargeable with interest, the rate .being subject to the equities of each particular case, and.in this case the rate is fixed at four per cent., in conformity with the English rule.</p> <p>3. Jones v. Haines, 79 N. J. Eq. 110, distinguished.</p> <p>4. A complainant may be 'barred from recovery even if there be an express trust by laches, where injury to defendant caused by the delay is proven or may be inferred' because of loss of testimony or some other reason..</p>

<p>1. The court will take judicial notice of unsettled condition of public affairs when war is imminent, in dealing with underwriting contracts involving large amounts of money.</p> <p>2. Assuming that the court must consider the equitable and legal rights of a complainant stockholder, even if he bought his stock solely to acquire a status to question a corporate transaction, before a court of equity will act it must be demonstrated that complainant’s right is clear, his injury irreparable, and his remedy at law inadequate.</p> <p>3. The issuance of non-votings stock is not prohibited as against public policy.</p> <p>4. Participation of directors of a corporation in a syndicate to take up such stock does not make the actual transaction void. The contract is voidable but open to ratification by the stockholders.</p> <p>5. Under the statutes of this state common stock may be -divided into classes, and the voting privilege may be withheld from any class.</p> <p>6. The mere fact that it is the purpose of stockholders in withholding voting power from a new issue of common stock, to perpetuate the management, is no objection, in the absence of bad faith, to the issue.</p> <p>7. Common stock defined.</p>

<p>The orphans court, being a court of general jurisdiction, has power to revoke its certificate transferring questions involved on the probate of a will into the circuit court for trial, when the certificate was made without notice of the application therefor to the adversary party, because it is 'a principle of law that in every proceeding concerning the rights of individuals thejr are entitled to notice of any motion affecting those rights, even though notice be not directed by the statute under which the proceeding is had.</p>

<p>1. Prejudice and partiality are not grounds for setting aside a will.</p> <p>2. The evidence in this case is not sufficient to set aside the will oi this testator on the ground of undue influence.</p> <p>3. The term “interdiction” as used in French-Canadian law means a proceeding to obtain a curator of person and property, and includes the calling of a family council and proceedings in court, including a hearing.</p>

<p>Property transferred to residuary legatees by a trust deed executed contemporaneously with the testator’s will cannot be considered as part of testator’s property on an application for allowing counsel fees.</p>

<p>Oil appeal from decree of orphans court from allowances made to executors for commissions and proctors’ fees.</p>

<p>1. Interest on general legacies is payable ordinarily from one year after testator’s death, but where a will fixes time of payment of a legacy, interest begins from the time so fixed.</p> <p>2. Under the language of the will in question, held that it was not the testator’s intention to deny interest on legacies after the expiration of one year from his decease.</p>

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

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

<p>On appeal from a decree of tbe Passaic county orphans court on probate of will.</p>

<p>Under our statutes of distribution (P. L. 1911/ pp. 70, 71) the children and grandchildren of deceased children take their parents’ share, together with the children of testator living at the time of testator’s death.</p>

<p>On appeal from an assessment of a transfer tax.</p>

<p>1. Statutory commissions of testamentary' trustees are proper items of deduction in appraisements of inheritances under the “Transfer of Property Tax” act of 1909. P. L. 1909 p. 828; Mattel• of Gihon, 169 N. T. 448, followed.</p> <p>2. The assessment for New Jersey transfer taxes may be surcharged with the amount of these commissions at the proper time, but not before the exact amount of such commissions is ascertained.</p>

<p>1. The tenant for life of a residue is not entitled to the income accruing during the delay allowed for the payment of legacies on that part of the estate .used for payment of legacies. Such income falls into the residue as capital.</p> <p>2. Corle v. Monkhouse, Jf7 N. J. Eq. 73, distinguished.</p>

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

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

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

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

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

<p>On appeal .from a decree of tbe court of chancery advised by Vice-Chancellor- Stevens, whose opinion is reported in 86 N. J. Eq. 18.</p>

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

<p>1. In the case of a simple, or dry trust, i. e., one in which the nature of the trust is not qualified by the settler, the cestui que trust has the right to be'put in actual possession of the property.</p> <p>2. In the case of a simple trust, if the cestui que trust die before taking possession, the right of possession in the case of personal property passes to'the personal representative.</p> <p>3. Where a trust of personal property appears to be completely and clearly declared by a writing to which the settler was a party, parol evidence is inadmissible to vary or defeat such, declaration.</p> <p>4. The oral declarations of the holder of a benefit certificate in a mutual benefit association are inoperative to confer beneficiary rights therein, in the absence of any element of contract.</p> <p>5. A death benefit certificate was payable to R. as trustee for L., who died after the holder of the certificate but before' R. collected the money thereon.,—Held, that the society properly paid the money to the administratrix of L., and was entitled to enjoin a suit at law by R. for the money.</p>

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

<p>On appeal from a decree of the court of chancery, reported in 86 K. J. Eq. 137.</p>

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

<p>On appeal from a decree of the court of chancery advised bjr Vice-Chancellor Backes, whose opinion is reported in 86 N. J. Fq. 10Jf.</p>

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

<p>.On appeal from a decree of the court of chancery advised by Advisory Master Nelson B. Gaskill.</p>

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

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 87 N. J. Eq. 47.</p>

<p>On appeal from a decree of tlie court of chancery advised by Vice-Chancellor Backes,'whose opinion’is reported in 85 N. J. Bq. 891.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Poster, whose opinion is reported in 86 ■N. J. Eq. 357.</p>

“As to the mistake in the deed, according to complainant’s own evidence, which is corroborated by the appearance of the deed itself, the deed was originally drawn to him as sole grantee, and by reason of directions given at the time of its execution, by himself to the lawyer who drew the deed, it was changed in respect to the party grantee.

ice-Ordinary Backes, who filed the following opinion: “The facts are fully set forth in the opinion of Judg'S Connolly, filed in the orphans court, and I concur in the conclusions arrived at by him. “The indenture by which the appellant was bound to the deceased and her late husband, in 1866, by the American Female Guardian Society, was'for a term of years only and expired by its own limitation. The form of the indenture is similar to the one found in IS N. J. Eq. SS8&.

•On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, who filed the following opinion:. ■ “This ig a bill for the specific performance of a contract to convey land. The parties to the suit are brothers.

and Building Association against Margaret Stewart McKenzie, the widow, and Henry M. Ladd, the executor of the will of William McIvenzie, deceased, for the purpose of determining the title to some shares of stock of the complainant corporation which were claimed by both the widow and the executor.

The facts are simple and undisputed. On September 15th, 1915, the complainant recovered judgment against Christine Wenigmann in the supreme court of New York for1 $4,039.26. The complainant then brought suit thereon in New Jersey and recovered judgment against her in the supreme-court of this state for $4,176.01. The judgment debtor is the wife of Ernest Wenigmann, a contractor, who held substantially all the stock of the Wenigmann Construction Company.

. “This conclusion would ordinarily result in advising the decree nisi in favor of the petitioner, but, under the provision of section 28 of the Divorce, law, such a decree cannot be advised if the charges made by the defendant at her cross-petition are sustained by sufficient evidence. “The evidence on that subject is, in my judgment, not satisfactory. It is encountered by the denials by petitioner of the charge.

<p>On motion to strike out decree pro oonfesso.</p>

<p>1. On final hearing in the court of chancery but one decree may be entered, no matter how numerous the parties or the issues.</p> <p>2. The purpose to be accomplished by a decree in equity is to finally settle and determine the rights of all persons interested in the subject-matter of the suit.</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 such decree, although they may be stated in the recital preceding the decretal paragraph, or may be omitted entirely.</p> <p>4. There should be an adjudication in a decree of the rights to which a party or parties are entitled. This does not induje several negative adjudications against the complainant as to precise questions put in issue on which he is unsuccessful, but it is only necessary that a general adjudication in favor of defendant, so far as he is successful, need be made, unless there are specific matters or things to be awarded to him and which cannot appropriately be made the subject of an omnibus adjudication.</p> <p>5. While it. seems that every matter put in issue by the pleadings is to be presumed to have been adjudicated, if there be a decree, for or against one or more of the parties „to the suit, yet for greater certainty, it is better formally to adjudicate in terms all issues in a chancery suit, either generally or specifically, as the nature of the case may require; and a decree can always be so framed.</p> <p>6. The allowance of a counsel fee to a party to a suit in equity under the Chancery act (P. L. 1902' p. 51¡0 § 91, amended P. L. 1910 p. 427) is discretionary.</p> <p>7. The rule is that where a complainant and a defendant are each successful on one or more substantial issues, neither party is entitled to costs or counsel fee against the other.</p> <p>8. When a complainant prevails in part, and a defendant in part, the complainant is entitled to enter the decree, which should adjudicate the relief to which he is entitled and dismiss the bill as to the relief • to which he is not entitled, reciting that the cause came on for hearing in the presence of counsel for the respective parties, naming the parties and counsel, but not reciting that the decree is entered upon the motion of counsel for either party, the name of complainant’s solicitor only being endorsed on the back of the decree. a</p>

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

<p>1. Testator devised the remainder of his real estate to his wife for life or so long as she should remain his widow, and, after her death or remarriage, to his two daughters to be equally divided between them, share and share alike; and in case of the decease of either daughter, then to the survivor absolutely unless the deceased daughter should leave lawful issue, then that such issue should take the share which would have been received by such deceased daughter had she been living; in case both daughters should die, each leaving lawful issue, then the share of each daughter to be divided equally among such issue surviving, respectively; and in case of the death of both daughters without leaving lawful issue, then the estate to be divided equally among testator’s legal representatives .(meaning, doubtless, heirs), share and share alike. These events happened: Testator’s wife died in his lifetime; one daughter, having married, also died in her father’s lifetime and without issue; the father then died, leaving his other daughter him surviving.—Held, upon the father’s death the absolute devise to the surviving daughter took effect, and the remainder to his heirs generally was defeated.</p> <p>2. The court of chancery has power to decide a-question beyond its jurisdiction when it arises incidentally and collaterally in a suit within its jurisdiction, which decision, however, has no force res judieata or by way of estoppel.</p> <p>3. If the legal title to lands is in issue in a suit for partition, the court of chancery will either dismiss the bill or retain it to allow the title to be settled in an action at law; and the practice is guite universal to retain it.</p>

<p>Where a testator bequeathed a business which she did not own, but •which owed her money, tire legatee is not entitled to the amount the business owed the testatrix, as a satisfaction of the legacy.</p>

<p>. 1. A voluntary conveyance is presumed to be fraudulent as to debts antecedently due.</p> <p>2. Orane v. Brewer, 78 N. J. Eq. 558, approved and followed.</p> <p>3. Severs v. Dodson, 58 N. J. Eq. 634, distinguished.</p>

<p>Heard on petition for writ, return to writ, travers and testimony taken in open court.</p>

<p>1. Where donor was in custody of donee’s agents when alleged gift was made, it was donee’s duty to produce all testimony obtainable to 'show donee’s .competency and the lack of undue influence.</p> <p>' ‘2: The fact that donee’s agents who took part in the transaction were not produced as witnesses is entitled to weight.</p> <p>3. Although a gift made by a feeble person fatally ill may be a gift inter vivos, nevertheless being asserted after the death of the alleged donor it is in the same class as gifts causa mortis in respect to legal safeguards.</p> <p>4. Evidence Jield to show that delivery of a bank book with check was not delivery of tile bank book except as a bailment to enable the payee to cash the check.</p> <p>5. A gift cannot be effected by delivery of a check in an ordinary bank of deposit, for the donor may stop payment of the check.</p> <p>C. To .be effective, it is fundamental that the thing- donated must be placed beyond the donor’s control.</p> <p>7. With a rare exception, equity will not aid an incomplete gift.</p> <p>8. Delivery with donative intent of a check on a savings hank for less than the full amount on deposit with the contemporaneous delivery of the pass book as a bailment to enable the payee to- cash the check, does not constitute a completed gift, there being no gift in such ease until the cheek is cashed. -The fatal defect consists in the fact that absolute title to and dominion over the pass book as a chattel does not pass to the intended 'donee.</p> <p>9. The statute prescribing the form of execution of wills will he rigidly enforced.</p>

On appeals from the adjudication of the receiver of an insolvent corporation in respect, to the. allowance of claims, and on application for a counsel fee for services rendered in the recovery of assets by the receiver and for the enforcement of an equitable assignment of or other equitable claim to a share of such assets.

<p>1. A bill for partition by devisees should not be entertained if the substituted trustee of the property in question has a power of sale over said property.</p> <p>2. In this case the trustee has, by implication, the power to sell the realty in question.</p>

<p>1. Where real estate was bought with partnership funds, and was allowed to stand in the name of one partner for a long time, this is not in equity necessarily a bar to a decree that the real estate was partnership property.</p> <p>2. Under the circumstances in this case the laches is excusable, and such decree will be made as is most conformable to right and justice.</p>

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

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

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

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

<p>Joint liability imposed by law on directors who authorized and approved payment of dividends when there was no surplus or net profits, they being joint tort-feasors, and the relief to which complainant is entitled being a money decree against all of them, there is no separable -controversy as to non-resident directors so as to authorize removal of a cause under the United States statute.</p>

<p>1. The characterization of a person as trustee for another in the premises of a deed of gift impresses such equitable estate upon the title and was notice thereof.</p> <p>2. A deed executed by such trustee was abortive and is a cloud upon the title which may be set aside upon equitable terms at the instance of the cestui que trust.</p> <p>3. The cestui que trust may elect to surrender his estate and affirm the deed upon payment of fair compensation.</p>

<p>1. A provision in specifications for building a bridge which characterized as liquidated damages cheeks deposited by the bidders, is in the nature of a penalty, to be strictly construed, and works a forfeiture only if the contract is lawfully ¿warded and wrongfully declined.</p> <p>2. A proposal not in harmony with the plans and specifications cannot be accepted.</p> <p>3. In an action by successful bidders to recover a deposit, complainants are not estopped from setting' up the invalidity of the award.</p> <p>4. Where the award was unlawful because the proposal varied from the specifications, there could be no forfeiture of- the deposit.</p> <p>5. In such case there was no implied agreement to .modify the proposal to comply with the specifications.</p> <p>6. A successful bidder cannot arbitrarily withdraw his bid at any time before acceptance. Such bid is in the nature of an option giving the municipality a vested right of contract</p> <p>7. Where no time was specified for acceptance of bids, after an unreasonable delay in executing the contract, the successful bidder may withdraw his bid.</p> <p>8. Such delay does not amount to an extension of time for executing such contract, where it appears that the successful bidders persistently endeavored to secure a contract corresponding to their proposal.</p> <p>. 9. Where for about three months the counties refused to comply with the demands of the bidders to execute such a contract, during which time the price of labor and materials greatly increased, the bidders are entitled to relief on equitable principles.</p>

<p>1. Columns encroaching on the public street twenty-two inches constitute a public nuisance.</p> <p>2. In cases of public nuisance, a court of equity will not interfere at the instance of a private individual unless his private rights are so violated that he is subjected to substantial, serious and irreparable damages. He must suffer more than the public at large.</p> <p>3. Under the facts in this- case it does not appear that the complainant suffered such injury as would entitle him to injunctive relief.</p>

<p>Commissions are denied to an agent who kept no accurate records of his agency business, permitted trust funds to remain idle, mingled the trust funds with his own, and on an accounting was found unable to •account for a large balance due from him, and in such a case the full legal rate of interest will be charged from the date of each conversion, and compounded as a punishment.</p>

<p>A person accepting-a benefit under a will is required under the doctrine of election to perform all the requirements of the will, nor can he take a beneficial interest under the will and set up any right or claim of his own to defeat its full operation, after a lapse of time so great that it is impossible to restore the parties to their original position.</p>

<p>1. In a suit by a street railway to restrain a county .from constructing any new bridge which would not be of sufficient strength to accommodate complainant’s traffic, the burden is on the county claiming contribution to show the excess amount required to be expended to accommodate complainant’s traffic.</p> <p>2. If estimates had been procured showing the cost of the two kinds of bridges, the difference between them would, in the absence of fraud or bad faith, be the amount to be so contributed, and the burden of proof would have been to a certain extent shifted.</p> <p>3. The street railway is responsible only for the excess amount fairly expended by the county, caused by its use of the bridge, and not for unnecessary concrete overties or a greater amount of metal made necessary by their use, or for expensive construction due to expected increase in general traffic.</p> <p>4. In this suit the acceptance of the statement of the county’s expert that a bridge to accommodate ordinary traffic could be built for $3,000 or $4,000 less than the bridge that was built to accommodate street railway traffic, as proof of the proper amount of contribution, was error.</p>

<p>1. A bill for injunction against a town and its collector to restrain the selling of lands held by virtue of a tax title to satisfy an alleged lien for taxes reported subsequent to the tax sale to complainant, must be sustained, if at ail, upon the power of the court to remove a cloud from the title, or to enjoin a proceeding which will cast a cloud on title.</p> <p>2. Although the bill does not specifically pray that such cloud may be removed; it may be amended to include proper allegations and prayers.</p> <p>3. If equity has jurisdiction of a case it will settle all questions, legal and equitable.</p> <p>4. The action of a circuit court in confirming the report of adjustment commissioners is not judicial, and therefore not binding in this court.</p> <p>5. Where all the provisions of the statutes concerning tax sales are strictly fulfilled, the title to the property sold is in the purchaser at the tax sale, and all liens prior to the sale are discharged.</p> <p>6. Where a town sells land for taxes, it waives its lien for taxes levied prior 'to the sale, and it is not necessary for the purchaser to serve a notice to redeem upon the town.</p> <p>7. A purchaser at a tax sale to compel payment of current taxes under section. 52, General Tax act (P. L. 190S p. 891/; 1/ Comp. Stat. p. 5183), takes the property free from preceding- taxes, and an adjustment commission under the Town Adjustment act (P. L. 1898 p. 1/1/2; 1/ Comp. Stat. p. 521/6 § 1/03) cannot by a subsequent report impose a lien based on such preceding taxes, notwithstanding the fact that the commission had been appointed prior to the sale.</p>

<p>1. Where a corporation has entered into a legal contract of guaranty to pay dividends on the stock of another corporation, it cannot dissolve, or its stockholders be permitted to vote their stock in favor of such dissolution without making adequate provision for the contingent liability on its contract of guaranty.</p> <p>2. In such case a court of equity will enjoin dissolution proceedings, the corporation being solvent.</p> <p>3. Stockholders may estop, and in this case, it is held, they have estopped themselves from exercising their right under the statute to vote to dissolve a corporation without making adequate provision to take care of contingent obligations.</p> <p>4. The jurisdiction of equity considered and defined.</p>

<p>1. A divorce petitioner’s perjury may constitute contempt of court as well as a crime.</p> <p>2. Where such perjury is admitted or demonstrated, it should be punished as contempt, but, where the facts are in dispute, sound public policy generally requires that the offender be left to the criminal law.</p> <p>S. A divorce petitioner’s testimony that he had not seen his wife during a period when he was shown to have been living with her, constitutes perjury punishable as contempt of court.</p>

<p>1. Where moneys were loaned by one corporation to an individual and by him loaned to another corporation, which mingled them with other moneys so that their identity was completely lost, the' receiver of the first corporation cannot proceed against the receiver of the second corporation, both being insolvent, on the ground that such moneys were trust funds, since, unless the fund can be identified, such action will not lie.</p> <p>2. In such case the receiver of the first corporation takes such claim in the right of the individual as he finds it, subject to the fact that it has been satisfied in whole or in part, and to any rights of estoppel.</p> <p>3. In such case the receiver of the first corporation cannot proceed against the receiver of the second corporation for money had and received.</p> <p>4. The second corporation is not charged with knowledge that the moneys it received from. the individual did not properly come into his possession, although the individual was an officer and stockholder in both corporations.</p> <p>5. The proposal of the individual as president of the second corporation for liquidation of the loan by issuance of stock or bonds amounted to an offer on his part to receive such' securities in liquidation of the loan, and the action of the directors and stockholders thereon, authorizing the issuance of the stock and bonds for such purpose, amounted to an acceptance of this offer.</p> <p>6. The net proceeds of these securities should be credited against the claim of the assignee of the individual as it existed at the time of the approval of the issue of these securities by the stockholders of the company.</p> <p>7. Where such bonds indicate on their face that they were intended to be secured by a mortgage, and both parties dealt with them on that assumption, the assignee of the creditor is estopped from asserting the invalidity of the mortgage because of its improper record.</p> <p>8. As against those claiming in the right of the individual president the stock will be considered as issued, where it appears that the intent was that it should be, syid the parties acted as if it were, although in fact no certificates were issued.</p> <p>9. One claiming in the right of an individual, who has negotiated for his own benefit bonds which indicate on their face' that they were intended to be secured by a mortgage on chattels, is estopped from asserting as a creditor of the mortgagor that the mortgage is invalid because of improper record.-</p>

<p>1. Partnership real estate not necessary for the payment of partnership debts descends to the heirs-at-law.</p> <p>2. One who voluntarily places improvements, upon the land of another with or without the owner’s consent, loses his right thereto, unless there is an agreement to the contrary.</p> <p>3. Where improvements are made by a partnership on lands of one partner, ¿he relationship of the parties is sufficient to prevent the operation of the rule, and the partnership and those representing it are entitled to compensation, but this right is personal property, not real.</p> <p>4. Improvements made with partnership funds on lands of one partner and used for partnership purposes are not real assets entitling the heirs of a deceased partner to partition, the partnership right being against and not in the property.</p>

<p>1. Although contracts between attorney and client for contingent fees are sustained by the courts, they will be sustained only to the extent of securing to the attorney a reasonable compensation.</p> <p>2. Evidence held to show that the client fully understood the nature of her act in executing a contract for a contingent fee.</p> <p>3. - Where property was conveyed to an attorney in pursuance of such a contract, and the client by several acts ratifies the contract, a devisee of such property cannot question such completely executed transaction in the absence of fraud.</p> <p>4. The elements which may be considered iiq fixing compensation for legal services considered.</p>

<p>On bill. On order to show cause.</p>

<p>1. Under the peculiar circumstances of this case, Held, that a receiver should be appointed under general equity powers to run the business and protect the property.</p> <p>2. Where a state of war exists, and it is necessary for alien enemies to appeal to a court of equity to protect their interests in a domestic corporation, all the stock of which is owned by alien enemies, the court will not by the exercise of its injunctive powers turn over sole control to the representatives of the alien enemies, but will, where there is p. dispute as to who are legally directors and officers, appoint a receiver under its general equity powers to run the business and protect the property.</p> <p>3. It is the duty of a court of equity during a state of war in granting-relief to alien enemies, to see to it that the effect of the relief will not be to permit the transfer of property to an enemy country, or to lend aid or comfort to the enemy.</p>

<p>1. The court of chancery may, in an emergency, order the conversion of trust assets, not authorized' 'by the trust instrument, or contemplated by the maker thereof.</p> <p>2. Under the facts in this case the offer of $400 a share for the stock of the Long & Koch Company should be accepted.</p>

<p>1.. A court of equity will not. decree specific performance where doubt as to -the vendor’s power to convey a good title arises in ascertaining the true construction and' legal operation of an instrument.</p> <p>2. A devise to two daughters, their heirs and assigns, share and share alike, but if either die without issue and intestate her share shall go to the survivor, presents.a question not free from doubt as to the devolution of the property, and therefore specific performance will not be decreed! upon a deed signed by both daughters and releases of the powers of disposition.</p> <p>3. Qucore: Is the estate a life estate with power of testamentary disposition, or a fee defeasible upon the happening of the contingency?</p>

<p>On motion to strike out.</p>

<p>A court of equity, when its remedial jurisdiction is invoked in aid of or in lieu of an action at law, will examine not only the transaction in question, but the relations of the parties and all of the surrounding circumstances, to the end that if there is a well-grounded suspicion of fraud or deception it may withhold its aid and leave the complainant to his legal remedy.</p>

<p>1. A Jewish betro-thal agreement whereby the prospective husband obligates himself to care for the property brought him by the wife and pledges his own property as security for doing so, constitutes marriage articles, which give rise to' an executory trust, and impose upon the trustee and the court the duty of carrying it into effect in accordance with the intent of the parties.</p> <p>2. The nature of such an executory trust indicates that the settlement will provide not only for the husband a,nd wife, but for children, and it is the duty of the court to work out the details of the scheme so as to do justice and carry out the intention of the parties.</p>

<p>On appeal from -a- dec ’ee advised by Vice-Ordinary Lewis and reported in 87 N. J. Bq. 294.</p>

J. Eq. 142. The bill seeks to enjoin actions of ejectment. Mary J. Watt, wife of the defendant, died seized. She and the defendant were married in 1889 and had a child. In 1908, on the wife's complaint, she obtained a judgment in the supreme court of New York, whoso jurisdiction is not questioned, separating her from the bed and board of the defendant forever; thereafter and until her death, she and her husband lived in a state of separation under that judgment.

<p>1. The receiver of an insolvent corporation can enforce a stockholder’s liability for unpaid stock issued as full paid only in the’ right o’f creditors. . ■ •</p> <p>2. The obligation of holders of unpaid stock in a corporation issued, as full paid is to pay so much of what is unpaid on the stock as will satisfy the claims of corporate creditors and meet the expenses of winding up its affairs. Cumberland Lumber Co. v. Clinton Jlill Lumber Mfg. Co., 57 N. J. Eq. 687, followed. ' ......</p> <p>3. The amount of a stockholder’s liability on unpaid stock must .be ascertained in the forum of the corporation’s domicile, in a proceeding to which the corporation itself is an indispensable party.' Wetherbee'v-. Baker, 35 N. J. Eq. 501, followed.</p> <p>4. A stockholder is so far an integral part of the corporation that'in view of the law, he is privy to the proceedings touching .the: body of which he is a member. Where an assessment for unpaid stock. is made in a proceeding at the domicile of the corporation to which the corporation is a party, the stockholder cannot question • the propriety or amount of the assessment, although he may contend in ■a subsequent action against him personally to collect the assessment' that he is not liable at all.</p> <p>5. The propriety and amount of an assessment upon stockholders to pay creditors are internal affairs of the corporation' with which the courts of another jurisdiction will not intermeddle.</p> <p>6. A stockholder is not bound to pay an assessment on his stock until the assessment is made and he can know how much he has to pay. When his liability has been ascertained it must be enforced in a court of law unless some element of equity jurisdiction appears. Barlcaloio v. Totten, 53 N. J. Eq. 578; Hood v. MoNaughton, 5fy N. J. Laio 1/85, followed.</p>

<p>1. Where it appears that the mind of the owner of real estate was so impaired as to make her incapable of understanding the nature and effect of her acts or the affairs in which she was participating, the purchaser of her real estate at. a sheriff’s sale (made-while she was trying and substantially ready to pay the execution), who knew of her mental condition, and who purchased at a price so inadequate as to shock the conscience, will be directed, on payment to him of the money expended for the property with lawful interest, to reconvey the real estate.</p> <p>• 2. Where the guardian of a lunatic, before filing her bill, tenders to the purchaser of the lunatic’s real estate, bought at a sheriif’s sale, the amount of his purchase-money and interest, which tender was declined, it is allowable for the court of chancery to require the purchaser to pay the complainant’s costs in that court, upon the court’s finding that equity requires a decree that the purchaser shall reconvey the property to the complainant upon payment of the purchase price and lawful interest.</p> <p>3. The court of chancery has no power in a strict sense of the term to set aside a judgment at law. In granting relief it does not interfere with records of the law court or strike therefrom the judgment. It treats the proceedings at law as valid and grants relief against the consequences thereof because the rights acquired thereunder cannot be retained in good conscience by reason of some new matter on which the court of law did not or could not pronounce a judgment, or which for some just cause the party could not bring to the consideration of the court of law. The suit in equity to obtain relief is strictly a proceeding in personam, and the decree adjudges the rights of the parties inter sese in relation to the judgment, and the relief is limited to enjoining parties from proceeding to enforce the .judgment.</p>

<p>Paragraph 6 of section 1 of the Divorce act of 1907 (P. L. 1907 p. J/7^j Oomp. Stat: p. %0%%) was not repealed or abrogated by the Marriage act of 1912 (P. L. 191% p. 806), and that paragraph of the Divorce act authorizes the annulment of a marriage at the suit of the husband when he was under the age of eighteen at the time of the marriage, and when the marriage had not been confirmed by him after arriving at such age, even though his parents consented to the marriage in the form prescribed by the Marriage act, and even though it be inferred from the evidence that, at the time of the marriage, he intended to disaffirm it upon reaching the age of eighteen.</p>

<p>A judgment in attachment under the act of 1901 {Comp. Stat. p. 18B) is ineffective as a lieu against land conveyed by bona fide unrecorded deed made and delivered prior to the issue of the writ of attachment.</p>

<p>1. It is the duty of a husband to provide a home for his wife in which she is recognized by its inmates as the household mistress, and when the husband subjects his wife in the management of her household affairs to the interference of his mother who manifests an enmity towards the wife, and by words and acts assails her conduct and reputation to such 'an extent that she cannot endure it, and leaves the home for that reason, her desertion may be willful but it does not become obstinate so long as the husband makes no effort to induce her to return to a home freed from the contentious element.</p> <p>2. A wife left her husband’s home after notifying him that she would do so unless he provided a home apart from his mother, whose conduct she claimed humiliated her, and, who had charged her with being a bad, wicked woman; this the husband refused, saying, “That is up to you.” When she left, her husband was present, made no protest and did not ask her to stay. She took with her their only child, three weeks old, and the husband never attempted to see his wife or the child although they lived in the same city. After two years the husband decided to move to this state in order to obtain a divorce for desertion. Shortly before coming to this state he wrote a letter to his wife, and the day after he moved he wrote her another, the contents of these letters being the only proof of an attempt to induce his wife to return. Neither letter contained any request or invitation, but a mere statement that the home was open ■ for her return under old conditions, including the presence of his mother.—Held, that these letters were not proof of a bona fide effort to induce the wife, to return, for there was no promise to remove the real cause of the separation, which the husband recognized when he permitted his wife to leave without protest. Nor did they invite the wife to return, and were evidently written as a basis for the intended divorce proceedings, embodying terms which he knew the wife could not accept.</p>

J. Eq. %8-0. This is an appeal from an order of the prerogative court affirming an order of the I-Indson count)' orphans court denying probate to a document offered as tlie last will and testament of Isaac Gluckman, late of tire city of Bayonne, deceased. Gluckman left a widow but no descendants.

The appeal is based upon the ground that its provisions were tli'é product of the undue influence exerted by Tutty’s son,: William, to whom testator gave nearly all his property. ■' ■ ' Testator was eighty-four years old at the time of his death on May 18th, 1914. The will was executed ten days previously. He left three children—the son, William, and two daughters. He came to this country from Ireland when a young man and worked in the mines of Morris county.

<p>On appeal from a decree of the court of chancery reported in 87 N. J. Eq. 108.</p>

<p>On appeal from an order of the court of chancery advised by Vice-Chancellor Griffin, whose opinion is reported in 87 N. J. Eq. 15If.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis, whose opinion is reported in 86 N. J. Eq. 80, sub nomine Givernaud v. Variel.</p>

The complainants are the children of John D. Kremelberg, late of the city of Baltimore. The defendant is the daughter and sole heir-at-law of J. George Kremelberg, deceased, a brother of J ohn. The effort is to charge George’s estate with a sum amounting to several hundred thousand dollars, on the theory that he failed to account for property derived from his brother, which, it is said, he held in trust for complainants.

I am not at all satisfied that the entire questions involved in the case and now presented by the bill were not settled by the order made by Vice-Chancellor Stevenson, and, further, -that the decision of Judge Tennant on the application made in the law court to have the judgment satisfied was not conclusive; but, aside from this, it does not appear from the proofs before me that the complainant is entitled to relief in this court.

The parties were married November 29th, 1904-, and lived together as husband and wife until August 26th, 1915, at which time the' petitioner left the house of the defendant. Two children were born of the marriage, one on August 28th, 1905, and the second child in June, 1911. At the time of the marriage, the defendant had two boys by a former marriage, aged nine and thirteen years, respectively, and who lived in the family.

They have one child, who was born in July, 1905. In the year 1907, the defendant spent a large part of the summer at Earmingdale, in Monmouth county, boarding at the home of the mother of Edward Hobcroft, who is named as co-respondent. The petitioner remained in the city during the greater part of the week, but visited his wife and child over the week ends and spent his vacation of two or three weeks with them.

<p>On appeal from a decree of the court of chancery reported in S<6 N. J. Fq. 8h$.</p>

Prior to the marriage petitioner boarded in the family of defendant’s mother. The family consisted of the mother, her daughters and a son. Petitioner occupied the back parlor, and defendant a room on the floor above. On September 28th, 1912, the marriage was solemnized by Pastor Laufer of the First Presbyterian Church of West Hobo-ken. This change in status does not appear to have changed their mode of living; he continued to occupy the back parlor and she the room above.

It is important, in the public interest, that the question of a preliminary injunction should be disposed of at once. There are one or two preliminary questions. One of them relates to the nature of the jurisdiction of the court of equity in cases of this kind. I think it rests on two familiar rules applying to that court. One is the ground of irreparable injury, and the other is the ground of the control of the management of a common easement.

The defendant, Halyburton, invented them in 1902. From that time on, he made efforts to interest capitalists ^n their manufacture but without success. In the fall of 1906 he was introduced to Elsworth P. Baylor, a coal dealer and merchant in Hampton, or Junction, as it was then called, a small .town on the New Jersey Central railroad about fifty miles from New York.

The primary question is whether or not -this stock was trans- • ferred by Mr. Shaw to Mrs. Hepburn in good faith and for valuable consideration at the time claimed. I would have been better satisfied in this case if Mr. Shaw had been present and testified touching these various transactions, but it is impossible to give substantial weight to an adverse inference by reason of his absence.

During the hearing the petitioner asked for leave fo amend the petition and charge the defendant with having committed adultery with three other women, names unknown, during July and August, 1914, in Atlantic City, at 15 South Carolina avenue.

<p>On appeal from an order of the court of chancery reported ante ¶.7.</p>