Volume 88 — New Jersey Equity Reports

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

<p>1. On hearing of rule in contempt proceedings the ex parte affidavits upon which the order was based in part could not be used, but the facts therein stated could be elicited upon testimony in open court.</p> <p>2. Respondent, member of local exemption board appointed to examine men drafted for the army, given the use of the chancery chambers by the sergeant-at-arms, who, after being informed while in possession in the forenoon that one of the vice-chancellors was in the court house and wanted the room for the business of the court, retained possession all day, was guilty of contempt, especially where he enjoyed an hour’s recess for lunch without endeavoring to communicate ■ with the vice-chancellor, and his assertion that he did not know where the vice-chancellor was and did not think about the matter, was no excuse, as neither carelessness nor forgetfulness is a defence.</p> <p>3. As the Accused disclaims any intention to contemn, protests respect for the court, and makes submission to it, the court will follow the general rule and inflict no punishment.</p>

<p>1. It is irregular .for a party’s solicitor of record or counsel to take his affidavit to be used in a judicial proceeding; but this rule is one of judicial policy and may be waived by the court.</p> <p>2. A bill or petition does not require verification unless the party complainant desires some ex parte relief upon it, such as a restraining order or the like.</p> <p>3. Formerly, a petition for the construction of a will would not lie, but now by the Chancery act (P. L. 1915 p. 184 § 5) it is provided that no proceeding shall be dismissed on the ground that it was erroneously begun by petition instead of bill, but in such case the court may order proper amendments to be made.</p> <p>4. Persons, who by the construction of a will would be affected by the court’s determination, are necessary parties to a bill for the will’s construction, for without their presence before the court the construction would be a mere academic deliverance so far as they were concerned and would not be binding upon them.</p> <p>5. Formerly, a suit would not lie for the construction of a will without seeking equitable relief in the premises, the rule being that the court would only interpret the provisions of a will as an incident in the granting' of relief, but now by Chancery act (P. L. 1915 p. 184 § 9) it is provided that any person claiming a right cognizable’ in a court of equity under a will or other instrument, may apply for the construction thereof so far as the same affects such right, and for a declaration of the rights of the persons interested. — Held, this statute is not declaratory, but remedial, and was meant to extend the remedy of construction to cases where there exists no present right to relief resulting from construction,</p> <p>6. What the legislature meant by a “right cognizable in a court of equity,” was a right over which, in and of itself, the court has jurisdiction, and it was intended that the jurisdiction should be exercisable where the right was present, although an accompanying circumstance, the presence of which theretofore .alone permitted the right to be declared, was absent.</p>

<p>On. motion to strike out parts of answer.</p>

<p>1. Evidence held insufficient to show fraud in act of deceased in securing deed from her nephew of his interest in his uncle’s estate.</p> <p>2. Where the deed was given under an oral agreement to make a will providing for the grantor, and such will was made, and afterwards changed to his detriment, the contract was sufficiently specific to warrant equitable relief. ,</p> <p>S. The fact that the agreement was completed at a later date does not prevent the consideration of the entire transaction as one contract.</p> <p>4. The fact that such completion of the contract is to be accomplished by making a> will, does not make the contract revocable.</p> <p>5. On suit for an amount paid by the nephew in performance of this contract, he cannot both recover such amount and have a decree enforcing the contract. ' '</p>

<p>1. To protect property against mechanics’ liens a building contract filed must be between parties who in truth, and not in form merely, are the contracting parties.</p> <p>2. In this case the contract filed was not between the parties who. were in truth the contracting parties, and therefore does not protect the property from mechanics’ liens.</p> <p>3. As a decree in reference to matters collateral to the suit would be void, such matters should not be disposed of in these proceedings.</p> <p>4. Where mortgages were made after the commencement of the building, it must be shown that the money advanced on them was actually ap-' plied to the erection of the building in order to obtain priority for the mortgages.</p> <p>5. Where some of the money advanced on mortgages made after the building was commenced was used to take up prior mortgages, such advances are not entitled to priority over mechanics’ liens.</p> <p>6. A vendor who takes a mortgage for unpaid purchase-money-loses his vendor’s lien.</p>

<p>1. Under the contract involved in this case, it is held, that if the complainant takes anything under its option to purchase, it must take all of the plant of the defendant company.</p> <p>2. Under the evidence in this case, held that the vote of the people authorizing the purchase was to purchase the system as it was, and not as it ought to be. ,</p>

On petition for divorce on the ground of desertion, answer and cross-petition for divorce on the ground of desertion. Heard on pleadings and proofs taken in open court.

<p>On final hearing on bill for maintenance.</p>

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

<p>1. Under the testamentary -provisions in this case — Held, that the wife’s one-fourth share of income should be divided, one-third to the children of the daughter, one-third, to the children of the son, and one-third to the son.</p> <p>2. Under a bill for the construction of a will — Held, that instructions touching future contingencies which may never arise will not be given.</p>

<p>On bill for partition. On hearing on motion to strike out answer.</p>

<p>On final hearing on petition for divorce.</p>

<p>1. AVliere a contract for the sale of real estate expressly stated that it should not be binding until ratified by a certain person, and that person ratified it on Sunday, it cannot be enforced.</p> <p>2. AVhere a contract for the sale of real estate provided that it should not be binding until ratified by a certain person in writing, it cannot be enforced if ratified on Sunday, even if such ratification, endorsed on the contract, was not delivered until Monday,</p> <p>3.. A contract consummated on Sunday is unenforceable, even though defendant, when refusing to act, did not raise that objection.</p>

<p>A contract made in the name of a corporation by its president in the usual course of business, which its directors can authorize and make or ratify, is presumed to be binding on it until it is clearly shown that it was not authorized or ratified, especially where acquiesced in until the other party has become insane.</p>

<p>1. Where a son executed a second mortgage and his mother signed the bond accompanying it, and the property was conveyed to her, on foreclosure of the first mortgage the mother can set up the defence of usury.</p> <p>2. Although the illegal bonus was paid to another, if paid pursuant to the contract of loan, with the knowledge of the mortgagee, the mortgage is usurious.</p> <p>3. The evidence in this case shows that the mortgagee knew that the loan was usurious.</p>

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

<p>Exceptions to master’s report on alimony.</p>

<p>If a debtor, in failing circumstances, convey his land for an apparently inadequate consideration to a creditor in payment of a debt, the burden is on the grantee to show that the sale was bona fide, and unless it is clear that it was, the sale will be set aside upon equitable terms.</p>

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

<p>1. Under the evidence in this case — Held, that the chattel mortgage was a lien against creditors on book accounts that arose after the date of the mortgage, and as to after-acquired chattels.</p> <p>2. A lien for taxes, under the evidence in this ease, has priority in the proceeds of the chattels sold.</p>

<p>1. Under the terms of the will to be construed there should be a sale of The Insurance Times and the proceeds thereof divided.</p> <p>2. A power given in the will'to testator’s children to decide whether the paper should be continued after the termination of the life estate created by the will is violative-of the rule against perpetuities.</p>

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

<p>1. Wheré testatrix’s estate has been fully administered except as to certain 'corporate shares specifically bequeathed the right of action to recover such shares is in the legatee, the executor’s qualified estate therein being at an end. ' ' ■ '</p> <p>2. The orphans court, in which such estate- was settled, had not the power to try the title to such shares under P. L. 1909 p. 88J/.</p> <p>3. Evidence held insufficient to establish a gift of such shares by testator to her son, as against the specific legacy given by the terms of the will. ’</p> <p>4. Delivery of a certificate of stock without actual transfer or a written assignment or power to transfer, although accompanied with words of gift, does not constitute a valid gift inter, vivos.</p>

<p>1. Storing of forty thousand tons of manure from about May 1st to the latter part of September, emitting foul odors, corrupting the air, and penetrating the homes of complainants, is a nuisance.</p> <p>2. The causes of action alleged, viz., defiling the air and pollution of water,, are properly joined in one bill of complaint.</p> <p>3. Complainants need not show prior application to the local board of health to abate the nuisance and its refusal to act, in order to maintain their bill.</p> <p>4. Eight years’ endurance of the nuisance does not constitute laches— every day’s continuance is a new nuisance.</p> <p>5. Where the damage is substantial, a court of equity will in the first instance determine the question of nuisance and grant relief.</p> <p>6. Defendant’s outlay expended on the property was without the implied consent of complainants, and does not estop them.</p> <p>7. Where a nuisance is clearly established, and is causing material irreparable injury to complainants, they are entitled to an injunction, irrespective of resulting damages to defendant.</p>

<p>On iinal hearing, bill, counter-claim and proofs.</p>

<p>1. Proof of ceremonial marriage and proof of matrimonial relations for fifteen years raises a presumption of the legality of the marriage which can only be overcome by clear and conclusive evidence of the validity of a prior mafriage] and that it subsisted at the time of the entering into the marriage in question.</p> <p>2. The burden is on the petitioner seeking annulment on the ground that his wife was not divorced from a living husband at the time of her marriage to him, to negative every reasonable possibility of the invalidity of his wife’s prior marriage.</p> <p>3. Marriages between people of the Greek Orthodox faith and non-Christians in Russia being illegal there, are so regarded elsewhere.</p> <p>4. Because the former husband of the defendant selected a priest of the Russian Church to perform the marriage ceremony, and because he was an officer in the Russian army, it may be presumed that he was of the Greek Orthodox faith, and the burden is on the complainant to show that he was not.</p> <p>5. Held, evidence does not sufficiently establish the prior marriage of the defendant.</p> <p>6. General neighborhood reputation of death of defendant’s prior husband held admissible.</p> <p>7. If the first marriage was legal and existing when the second was contracted, under the belief by the parties that the first was of no effect, and that they lived together as husband and wife under this belief, the moment when the disability was removed they became husband and wife.</p> <p>8. If the second marriage was meretricious if, after the death of defendant’s husband, she and the petitioner contracted to live as husband and wife, it would be sufficient.</p> <p>9. The doctrine of “unclean hands” would bar the petitioner from a decree of annulment.</p>

<p>1. The assets of a corporation cannot be used to retire capital stock as against the lien of bondholders, even though sufficient property remains to amply secure them.</p> <p>2. A provision in a trust deed securing a corporation’s bonds requiring a demand by twenty-five per cent, in value of the bondholders to move the- trustee to action, restricts collection or foreclosure proceedings, but is not a limitation upon the inherent rights of bondholders to protect their interests.</p>

<p>1. Where a defendant in a foreclosure suit consulted a solicitor, who advised him to satisfy complainant’s claim, and he thereupon requested him to obtain time to make his arrangements to do so, and the solicitor wrote complainant’s solicitor to that effect, and the complainant delayed entering his decree pro oonfesso for more than' a month, there was no neglect on the part of the defendant’s solicitor in not filing an answer which would entitle defendant to have the decree opened so that he might answer.</p> <p>2. When there was an encroachment of a few inches on defendant’s land by a wall of the adjoining property, and defendant brought an action of ejectment therefor, and recovered judgment for possession, defendant’s expenses in this respect should not be allowed in abatement of the amount due on the mortgage when the property was conveyed to defendant by complainant, who was foreclosing the mortgage.</p>

<p>1. In a suit to prevent the erection of an apartment house in violation of a restrictive agreement — Held, that the evidence was insufficient to warrant the relief asked, the character of the locality having changed greatly since the execution of the agreement, and several buildings having been erected contrary to the restrictions of the agreement.</p> <p>2. A court of equity will not, at the suit of a party thereto, enforce a restrictive agreement covering but a small territory, where it appears that the character of development of the surrounding territory unrestricted has been such as to defeat the purpose of the parties to the restrictive agreement.</p>

<p>1. A writ of sequestration to enforce the payment of alimony places in custodia lec/is the property sequestered, and no right can be acquired in that property except subject to the operation of the writ.</p> <p>2. The operation of a writ of sequestration issued in an alimony case extends to secure not only alimony due at the time of the issuance of the writ but alimony which may subsequently accrue.</p>

<p>1. Apart from any willful act, the negligence for which a person can be held responsible consists either in the performance of án act which under all the circumstances he is bound not to perform or the non-performance of- an act which under all the circumstances he is bound to perform.</p> <p>2. A director of a building and loan association is guilty of gross negligence in permitting the secretary to call up members of the board of directors and getting their permission to record them as present when they were in fact absent.</p> <p>3. The duties and responsibilities of directors of building and loan associations considered and defined.</p> <p>4. If a director was' present at a meeting when the minutes of the preceding meeting were approved, he is bound by the knowledge, of whatever appeared in the minutes.</p> <p>5. Where a director permitted an association to make a loan on mortgage on property on which he, as executor, held a prior mortgage, he is guilty of such negligence as renders him responsible to the association for loss by reason thereof.</p> <p>O. AVhere a director was present at a meeting when a report was made showing a disbursement on account of a particular mortgage which, had he made inquiries, would have disclosed that the disbursement was on property on which he, as executor, held a mortgage, he is guilty of such negligence as would make him responsible for subsequent loss.</p> <p>7. Directors of a building and loan association have no right to shift their responsibility on their counsel.</p> <p>S. That other directors are also responsible is no objection to relief against a defendant director.</p>

<p>1. Decisions of the supreme court of the United States as to the validity of contracts which may destroy competition are not binding on the state court unless the contract involves an article of interstate commerce.</p> <p>2. The act of March 16th, 1916 (P. L. 1916 p. 835), is not in violation of the state or federal constitutions, nor invalickas casting any burden on interstate commerce.</p> <p>3. Contracts designed to prevent price cutting of standard articles, well known to the public, not the subject of monopoly and not necessaries of life, are not opposed to public policy.</p> <p>4. On demurrer, the averments of a bill are to be treated as true.</p>

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

<p>1. Wliere a corporation is engaged on work for the government and is in urgent need of money, an injunction will not be issued, on application of a professional privateer who purchased a small amount of stock with notice of the plan to issue new stock, but will be denied without passing on the many and difficult questions raised as to the corporation’s right to issue the stock.</p> <p>2. By unanimous consent of the stockholders, a corporation may.issue stock to be placed ahead of existing preferred stock.</p> <p>3. If the act done is ultra vires, but acquiesced in by all interests of the corporation, the sole person who may attack it is the attorney-general on behalf of the state.</p> <p>4. Where application is made by a professional agitator, who bought in for the purpose of fomenting litigation, for preliminary injunctive relief against proposed corporate action, the court may weigh conveniences.</p> <p>5. Although it is a general rule on application for preliminary injunction that to doubt is to deny, this rule does not apply with its full force where to deny relief would permit the destruction of' the subject-matter of the litigation. In such cases it may generally be said that to doubt is to grant.</p>

<p>1. The evidence in this case shows the security for the mortgage to be uncertain and precarious.</p> <p>2. Where the security is uncertain and precarious the court has power to appoint a receiver regardless of insolvency.</p> <p>3. When it appears that the equitable rights of the parties can be fully protected by the appointment of a receiver, and that considerable loss or damage might otherwise result, the court should act, notwithstanding lack of proof of insolvency of mortgagor.</p>

<p>On proceedings to punish for contempt.</p>

<p>1. An injunction against proceeding on a judgment of a court of,law will be granted where the defendant was prevented by an accident from appearing in the court of law and interposing a meritorious defense, especially if the judgment is founded upon a palpable forgery, and the court of law is helpless to give relief.</p> <p>2. Dgaudulent suppression of a summons served on defendant by leaving at her residence with a member of her family, by the person upon whom served, who is not the agent of defendant, is an accident against the result of which equity will relieve.</p> <p>3. While ordinarily the relief granted by courts of equity in suits affecting the validity of judgments obtained at law as" the result of fraud, mistake, accident, &c., is a perpetual stay of proceeding, .the court may direct the judgment creditor to cancel the judgment or consent to its vacation.</p>

<p>On application for confirmation of receiver’s report and allowance.</p>

<p>On petition for divorce.</p>

<p>1. It is a grave contempt of court to communicate with, or to seek in any way to influence a judge, upon the subject-matter of a cause pending-before him and undecided, as such conduct is plainly an attempt to improperly influence the due administration of justice. *</p> <p>2. It is a contempt of the dignity of the court for one of the litigants before it to denounce and abuse to the judge the lawyers representing an adversary party, because lawyers are officers of the court.</p> <p>3. It is a contempt of the dignity of an appellate court for one of the litigants before it to denounce and abuse the court below to an appellate judge, although the judge of the court below, in his judicial capacity, is not an officer of the court above.</p> <p>4. Statements in a letter sent privately to the judge of a court before which an action is' pending, containing statements impeaching the character of a witness who has testified in tlie cause in open court — where such impeachment may only be lawfully made — is a contempt of court.</p> <p>5. While contempts are generally considered as being against the power, authority and dignity of the court, the contempt is also against the integrity of the court where the offer of a bribe is made to a judge.</p> <p>G. Contempts are of two sorts, civil and criminal; the former is remedial, that is, a. step in the cause for the coercion of one party for the benefit of another; criminal contempts are offenses against society, and, although they may arise in the course of private litigation, are not part thereof.</p> <p>7. The court in which contumacious conduct is enacted has authority to institute and carry through a proceeding for the purpose of punishing, the contemnor.</p> <p>S. When the proceeding is of a criminal nature,, it may be instituted by the court of its own motion and heard in a summary way; it is not a motion in the cause or a step, in the private litigation in which it arises, and, semble, it should not be framed and treated as a part of the civil cause.</p> <p>9. All superior courts of record, civil and criminal, possess inherently and independent of statutory authority, the power to punish for contempt.</p> <p>10. Probate courts, to which class the prerogative court belongs are not technically courts of record; the prerogative court exercises the jurisdiction of an ecclesiastical court, and ecclesiastical courts are not courts of record.</p> <p>11. There are exceptions to the rule that only superior courts of record have power to punish for contempt, and the prerogative court is one of the exceptions.</p> <p>12. The power and authority of the prerogative court of New-Jersey to. punish for contempt'as the inheritor of certain jurisdiction of its prototype — an English ecclesiastical court — examined and stated.</p> <p>13. The jurisdiction of the prerogative court of New Jersey prior to the act of 1795 (Pat. L. 1795 p. 158 § IS) did not include power to fine or imprison a contemnor; by section 18 of that act, now section R2 (Oomp. Stat. p. 1721/), the prerogative court is clothed with power to fine and imprison for contempt.</p> <p>14. In the construction, of statutes the intention of the legislature is to be derived from a view of the whole-act; the real intention, when ascertained, will prevail over the literal sense of terms; and when • words are not explicit the intention is to be collected' from the context and the occasion and necessity of the law and from the mischief felt, and the remedy in view; and the intention is to be taken or presumed according to what is consonant to reason and good discretion.</p> <p>15. The rule that penal statutes must be strictly construed does not mean that they should be subjected to any strained or unnatural construction in order to work exemption from their penalties; such statutes are to be interpreted by the aid of all the ordinary rules for the construction of statutes, and with the cardinal object of ascertaining the intention of the legislature.</p> <p>1G. Contempts are not only civil or criminal, but are also either direct, which openly insult or resist the power of the- courts, or the persons of the judges, o.r are consequential, which, without such gross insolence, and direct opposition, plainly tend to create a universal disregard of their authority.</p> <p>17. Direct contempts are those usually referred to as contempts in the face of the court (in faoie ouriie), but this does not mean that such contempts must be committed while the judge is presiding in open session in the court room; it may be a contemptuous interference with judicial proceedings in. which the judge is acting as a judicial officer.</p> <p>IS. Semille: .That in a case of criminal contempt in the prerogative court, unexceptional procedure requires that order be made upon the eontemnor to show cause why he should not be attached, when, if the writ be issued, interrogatories must be' propounded.</p> <p>19. Senible: That the answers of a respondent to those interrogatories would not have to be accepted as true.</p> <p>20. The contempt in the case at bar being one in faoie ouriai does not fall within the provisions of the act concerning contempt of court. V. L. 1911 li. 11. Quiere: Does the act apply to the prerogative court?</p>

<p>On application for probate of will.</p>

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

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

<p>On ajrpeal from a decree of the orphans court.</p>

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

<p>. Transfer taxes assessed against a life estate are payable out of the corpus of the estate, not the income.</p>

<p>On application to confirm report of commissioners. On exceptions to report.</p>

<p>Under section 19, of our Divorce act, P. L. 1902 p. 507, the court of chancery has power to allow alimony after final decree of divorce has been granted.</p>

<p>A trust company agreed to assign a mortgage, executed an assignment, and entrusted the papers to a solicitor for delivery and receipt of the consideration. He fraudulently inserted a description of an additional mortgage in a blank space and collected the amount due on both mortgages. — Held, that the case was one of mutual mistake, the trust Company meaning to assign only one mortgage, and the purchaser meaning to acquire two; • that the purchaser was entitled to rescind and that ■the trust company was liable upon rescission to repay the whole amount paid by the purchaser to the solicitor.</p>

<p>1. Where corporate business was not being conducted in the sole interest of creditors and stockholders, the court of chancery has power at the suit of a stockholder to restrain the corporation from paying its debts or pursuing its business, and to appoint a receiver, under the inherent powers of the court and P. L. 1912, p. 525.</p> <p>2. In a suit by minority stockholders to prevent diversion of the assets of the defendant corporation, those creditors whose claims are not yet due may intervene under the provisions of P. L. 1912 p. 525. A person is a creditor within the meaning of that act although the time for payment of his debt has not arrived.</p> <p>3. As the provision in P. L. 1912 p. 525, authorizing the appointment of a receiver without notice is unconstitutional, a corporation may assert its invalidity although it was incorporated under the act to which it is an amendment; the presumption being that parties, whether natural or artificial, have entered into a contract with reference to valid laws only.</p> <p>4. In a suit by minority stockholders against a corporation, that a receiver was appointed’ without notice to it, is immaterial where the order of appointment was subsequently confirmed after due notice.</p> <p>5. In such a proceeding, an order that the receiver was invested with title to all the property of the corporation was erroneous, not being authorized by section 65 of the Corporation act, as amended by P. L. 1912 p. 585, or by section 68 of the Corporation act, which is applicable only to insolvent corporations.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Griffin, whose opinion is reported in 87 N. J. Eq. 159.</p>

<p>1. It is not an inflexible rule that, when the court of chancery, having once acquired jurisdiction for one purpose, it is bound to retain the case for complete relief; whether the court of chancery will do so, so as to include all the points in controversy between the parties, rests somewhat in- the discretion of the chancellor. The rule applied in this case, where the court of chancery, under an agreement had jurisdiction to make an accounting, excluded therefrom items under two former agreements, which were cognizable in a court of law, held proper.</p> <p>2. A mortgagee in possession is not entitled to compensation for services rendered for renting the premises, in this case an apartment-house.</p> <p>3. Under the terms of an agreement, “to receive for its entire compensation for its services in so doing [i. e., building] a sum equal to ten per cent, of the entire cost of such building,” a corporation is not entitled to receive for its services, in addition to the ten per cent, called for by the terms of the contract, the proportion of the salaries of its officers and office employes, while supervising the construction of the building, nor ten per cent, on the cost of financing the building when the disbursements in connection therewith have been allowed, nor for telephone calls, carfare, postage, stationery — they are office charges of the defendant corporation; nor tools used in the construction of the 'building — they are part of the equipment of a contractor.</p>

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

<p>On appeal from a decree advised by Vice-Chancellor Lewis, and reported in 87 N. J. Eq. 171.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Foster and reported in 87 N. J. Eq. 19.9.</p>

<p>On appeal from a decree of the court of c-hancery advised by Vice-Chancellor Learning, and reported in 87 N. J. Eq. 90.</p>

<p>On appeal from a decree of the eonrt of chancery advisecLby Vice-Chancellor Backes,</p>

<p>On appeal from an order of the court of chancery advised by Vice-Chancellor Lane and reported in 87 N. Y. Eq. 560.</p>

<p>On appeal from a decree advised by A7ice-Chancellor Learning and reported in 87 N. J. Fq. 56.</p>

Appeal of the Sisters of the Poor of St. Francis. On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson, whose opinion is reported in 87 N. J. Eq. 424.

<p>Appeal of the Atlantic Land Development Company.</p> <p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Baekes, whose opinion is reported in 85 N. J. Fq. 379.</p>

<p>Appeal of the Atlantic Land Development Company.</p> <p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Baches, whose opinion is reported in 85 N. J. Eq. 379.</p>

<p>Appeal of the Atlantic Land Development Company.</p> <p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Baekes, whose opinion is reported in 85 N. J. Eq. 379.</p>

There are several grounds upon which a court of equity is justified in setting aside a(transaction of this kind, if the evidence warrants the charges which are made. A sale at a price grossly inadequate will be set aside by a court of equity. The testimony in this case, however, does not support the claim that the property was sold at a grossly inadequate price.

By the fourth paragraph of his will, testator gave the residue of his estate to his executors, in trust; and after directing the payment therefrom, by them, of a large sum of money for charitable purposes, he then directed his trustees as follows: “11.

Defendants have ansAvered, and by their ansAver assert the lights in the land suggested by the bill, and by Avay of counter-claim pray that a part of the land may be decreed to be subject to the lien and encumbrances created by -said covenants, restrictions and conditions.” The evidence discloses that on and prior to May 1st, 1897, Hemsley was the owner of a tract of land westerly of the improved part of Atlantic City which extended across the island from the thoroughfare on…

' In this state to justify a wife in leaving her husband’s home or in refusing to share the home of his selection on account of his cruelty, physical violence need not be shown, but such conduct of the husband must be shown as will reasonably convince the court that at or prior to the time of their separation her life or health Avas in danger, or that her life was by his conduct rendered one of siieh extreme discomfort and wretchedness as to incapacitate her to discharge the…

* On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, who filed the following opinion: This is a creditor’s bill. The pertinent facts axe undisputed. James Conway was a contractor. He became interested in a contract made with the town of Wakefield by the firm of Minaban & Costa, and lie joined in a bond of indemnity given to the complainant, the American Surety Company, which had guaranteed the proper performance of the work.

Appeal of the Libert)'' Trust Company. On appeal from a decree of the court of chancery advised by AOce-Chancellor Lane, who filed the following opinion: This is an interpleader suit brought by the Sterling Leather Works, which was liable upon two mortgages, one made by Franklin L. Meyer, and the other by Frederick F. Meyer and wife, each to Mary P. Butler, each registered in the register’s office of Essex county upon the 13th day of May, 1897.

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

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

<p>1. The Chancery aoi (1915). by rule 51 annexed, which provides that any pleading may 'be objected to by motion on the ground that it discloses no cause of action, defence or counter-claim, introduces, in effect: a demurrer to an answer in Chancery; prior thereto a demurrer to an answer did not lie in any form.</p> <p>2. Although demurrer to an answer would not formerly, lie, courts of equity have always had the power to strike out pleadings (including answers) as sham and frivolous, the same as courts of common law.</p> <p>3. Upon a state of pleadings which admittedly show that a diversion of water by an upper, away from a lower, riparian owner is sensible and. appreciable, it is unnecessary and undesirable to send a complainant to final hearing and permit of the taking of voluminoug testimony in order that the equitable terms upon which an injunction should issue can be ascertained, as it can readily be done on motion, with leave to take affidavits, if necessary.</p> <p>J. Complainant seeks an injunction upon the equitable condition that it shall issue only in case defendants refuse to make compensation, and defendants by their answer offer to make compensation if the complainant's right be established. — Held, complainant’s right being established, that the court, in virtue of such consent, has the power to order compensation made.</p> <p>5. If an upper riparian owner diverts water from a lower one, for the purpose of supplying water companies or municipalities which have the ultimate power of condemning the water rights in question, they will be allowed to do so upon compensation being made in aid of the upper-owner’s diversion for public use, exercising their own rights of condemnation in connection with contracts with the diverting riparian owner.</p> <p>O. There is no estoppel against a lower riparian owner’s protection of its rights, as such, by mere silence or failure to give notice, or bring suit; this legal right of the riparian owner is barred only by a grant, or by uninterrupted enjoyment by an upper owner for the full prescriptive period of twenty years.</p> <p>7. A lower riparian owner, who, with others, pollutes a stream from which an upper riparian owner diverts the water, is not thereby estopped from having appropriate injunctive relief upon the principle that it does not come into court with clean hands, because that maxim is confined to misconduct in regard to, and connected with, the matter in litigation ; and it does not extend to misconduct, however gross, with which the opposite party has no concern.</p> <p>8. Rule 72 under the Practice act (1912) provides that in case a new trial is granted it shall only be of the question or questions with respect to which the verdict or decision is found to be wrong, if separable. That rule is now rule 181 of those promulgated by the supreme court, June term, 1918, and by this later one the rule as to limited retrials is expressly made applicable to appeals. Semble, that the rule extends to new trials granted by the court of errors and appeals irrespective of the express provision in rule 131.</p> <p>9. Where one of the issues in a trial at law between a plaintiff and three defendants was as to whether the latter were all bound' on the question of liability, which was established in a former action at law betw-een the same plaintiff and one of the same defendants, the ground of estoppel in the second' suit being that the liability so established as against the party who was defendant to the former action, is also established- against the other two, because they are successors in interest of, and parties in privity with, it, and that, therefore, all of the defendant parties are bound when judgment passes against them in the second suit, although a new trial is granted on the question of damages only — it seems that all three are so bound.</p> <p>10. Where the bill alleges and the answer does not deny (and therefore admits) that defendants are impounding water of a river and diverting it away from complainant, a lower riparian owner, in quantities exceeding twenty-three million gallons daily, by reason whereof the natural flow of water has been so diminished' that the banks and bed of the river are rendered bare — Held, upon these admitted facts, that the damage to the complainant is sensible and appreciable and that the maxim de minimis non otirat leu does not apply.</p> <p>11. An answer in chancery must be consistent and a defendant may not insist upon a defence residing in an averment which is inconsistent with, and repugnant to, an admission made in the same pleading.</p> <p>12. An answer in chancery may contain within itself such circumstances as will suffice to deprive it of all efficacy.</p> <p>13. If a pleading appear on its face to be untrue in one of its essential allegations it is bad on demurrer.</p> <p>14. A defendant may not make disserving admissions in an answer, responsive to a bill, and then, by way of new matter, plead facts inconsistent with those admissions; in other words, a defendant may not, by self-serving statements, avoid the effect of disserving ones — at least not unless they amount to confession and avoidance.</p> <p>15. Averments in an answer examined and found not to constitute a defence to the bill. — Held, that the answer should be struck out upon equitable terms to be settled on motion and on notice.</p>

<p>If a lawyer is appointed receiver, it is improper for him to employ another attorney, unless in exceptional oases, and he has permission by order of the court so to do.</p>

<p>1. Where a landlord owned three corners of the intersection of tAvo streets, a covenant in a lease as to properties on the corner of such streets did not apply to a store adjoining such corner but on a different lot.</p> <p>2. Whore the right of a lessee to enforce a restrictive covenant is doubtful, this court will refuse to enforce it.</p>

<p>On petition for divorce on the ground of desertion. Heard on bill, answer and proofs taken in open court.</p>

<p>1. Under the language of the will under consideration in this case the complainant may be considered as such a school as was properly within its provisions at the time the will took effect, and subsequent changes in the field of work of the defendant corporation could not effect the nature of the trust.</p> <p>2. Where the defendant corporation was a mere agent of the general assembly, the directions of the general assembly as to payment of funds to the complainant gave complainant a right to demand and receive said funds.</p> <p>3. Under the circumstances of this case, the attorney-general is not a necessary party thereto.</p>

<p>1. A lessee’s executrix and sole devisee may enforce an option to purchase contained in a lease.</p> <p>2. A lessee may enforce specific performance of an option to purchase contained in a lease.</p> <p>3. An option to purchase contained) in a lease is not abrogated because the parties made a purchase agreement containing different terms of payment, which they later abandoned by mutual consent, when thereafter they continued to act under the terms of the lease.</p>

<p>1. The use of partnership funds by one partner for an investment held not to show the engagement of the partnership in the investment, where it is established by the evidence that the partnership had a practice of drawing checks in its name, and charging the same against the partner for whose use the money was drawn.</p> <p>2. "Whether the funds were used for the partnership depends upon the intention of the parties, as manifested by all the circumstances, and the use to be made of it.</p>

<p>On bill for a discovery, &c. Heard on bill, answer, replication and proofs taken in open court.</p>

<p>1. The burden of proof of establishing fraud is upon the complainant, and the rule that in transactions between a wife and husband a presumption of fraud arises that must 'be overcome by the husband does not apply to an action by the wife to set aside a deed by her to a third person, and from the third person to the husband and wife, where it is shown that the property was purchased by their joint savings.</p> <p>2. As a rule, wliere a husband causes property to be transferred to his wife there is a rebuttable presumption that the transfer was a gift.</p> <p>3. The rule is less rigid to rebut the presumption that such transfer was a gift and to prove it was a trust, where the trust is set up in defence of a deed alleged to have been given in discharge of the trust.</p> <p>4. The evidence in this cause held not to show the alleged frapd by the husband in procuring the deeds.</p>

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

<p>1. The statute of New Jersey executing simple trusts (2 Comp. Stut. p. 1586 § 7) does not execute a trust to convey.</p> <p>2. Where complainant has been in possession for thirty-five years and the right of action has existed for fifty years, the right to charge the property with a trust ex maleficio is barred by laches and the statute of limitations.</p> <p>3. Under the evidence in this case, the answer that a will had disappeared in 1856 and was not found until just before this suit was commenced, is insufficient to overcome laches.</p> <p>4. A formal averment in a pleading is nugatory when, refuted, by the specific facts pleaded.</p> <p>5. The presumption that trustees had conveyed the property as directed by the will prevails where' the right to an accounting was lost by laches, and limitations.</p>

<p>11 The furnishing of automobile trucks and drivers to a contractor does not give a claim for “labor” within the terms of the Municipal Mechanics' Lien law. They are mere instrumentalities.</p> <p>2. The act gives a lien only to subcontractors and persons who labor for, or furnish material to, the contractor or subcontractor. ■</p> <p>3. The provision of the act that a notice of lien should state the “terms, ■ time given, conditions” of the contract, is not applicable to cases of simple contract of purchase on orders from day to day. Agnew v. Paterson Board of Education, 83 N. J. Eq. 49, followed.</p> <p>4. A notice of pendency of- suit served on the day the hill was filed is sufficient, although subpoenas were not actually issued until four days later.</p>

<p>1. Formerly tlie court of chancery would not construe a will except as an incident to some relief to be afforded by a decree. ‘But, under the supplement to the Chancery act (P. L. 1915 p. 15h) “any person claiming a right cognizable in a court of equity under a deed, will or other written instrument” may have it construed. Following In re Ungaro’s Will, 88 N. J. Bq. 25.</p> <p>2. An absolute bequest to testator’s children, followed 'by directions that if any child should die without issue, its share should, go to the surviving children — Held, to mean death without issue at the period of distribution ; in this case, at the death of the testator.</p>

<p>1. A gift of the income of a fund to testator’s children for life, with survivorship among them if any child should die without issue — Held, that the surviving- share was an independent bequest and did not again survive, but upon the death of the survivor passed to his personal representative.</p> <p>2. A gift of the principal of the fund to the children of such of the testator’s children as shall die leaving children — Held, to be contingent; vesting, however, under'the rules at the earliest possible period, upon the death of a child leaving- children, or, perhaps, sooner, as children were born to sons or daughters, and varying from time to time by divestiture or investiture as grandchildren were born or died before their parents.</p> <p>3. A gift of the principal of the fund to the children of such of testar tor’s children as shall die leaving children — Held, that upon the death of a child of the testator leaving no children, but leaving grandchildren,, the gift vested in the grandchildren.</p>

<p>1. Copies of parish records of births, marriages and deaths, kept in pursuance of the law of a foreign country, and admissible in evidence in that country, are admissible here when, duly certified by the legal custodian and duly authenticated under the hand and. seal of the accredited representative of the United States to that country.</p> <p>2. Such copies will not be received in evidence unless precisely certified and authenticated according to the rules of the common law and the usages of nations.</p> <p>3. Copies of church records of baptism, not kept in pursuance of law, of a foreign country, are not admissible in evidence upon the certificate of the custodian and authentication 'by the United States representative, but may be admitted in evidence upon establishing the authenticity of the record by competent testimony and by proving- the copies to be true.</p>

<p>On application to open decree entered ex parte.</p>

<p>1. Where one of three stockholders executed a written agreement providing that he would not transfer his shares to an outsider until he had first offered them to defendant at the price offered him for them, it was complete compliance with his contract for the stockholder to offer his shares to defendant at the same price offered by complainant without disclosing from' whom the other offer came.</p> <p>2. Under above stated circumstances, held that where defendant had an- opportunity to exercise his option and failed to do so within a reasonable time, he cannot subject such stock to a constructive trust in his favor 'by attempting to exercise the option thereafter, as he would have a complete remedy at law for any injury thereby done to him.</p> <p>3. A court of equity has power to compel the transfer of stock on the theory that the one seeking the transfer is the equitable owner and is entitled to perfect his legal title to the shares.</p>

<p>1. A railroad company may contract with an express company for the exclusive right to use the station platform for the business of the express company.</p> <p>2. Such contract does not create a monopoly.</p> <p>3. Under such contract the express company is entitled to an injunction against others soliciting such - business, when actual damage could not be ascertained, and a denial of the injunctive relief would tend to-promote a multiplicity of suits.</p>

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

Hep. Hi. This is a hill to foreclose-,a mortgage made by the LackawannaInvestment Company to Poland D. Crocker and by him assigned to the Newark Trust Company as collateral security for the payment of Crocker’s note of $5,000 and any other liability of hiato the trust company, Additional facts found by the vice-chancellor are as follows: “The stock of the Lackawanna Investment Company was all owned by Eoland D. Crocker and one Powell.

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Lane, whose opinion is reported in 88 N. J. Eg. 212.</p>

<p>A codicil is not a revocation of a will but a republication thereof except as altered ; and where a testator executed a will and three codicils, and afterward revoked the last codicil, the will and the first two codicils wore -properly admitted to probate and the third codicil properly rejected.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in ante p. 93.</p> <p>The bill is for the construction of the will and codicil of Derestus B. Steelman. The essential parts are as follows:</p> <p>“Second It is my will and I do direct that my beloved wife. Marietta Stfeelman, be permitted to occupy my home, known as No. 12, South Ohio Avenue, in said Atlantic City, during her lifetime, and I hereby make a charge upon my estate the cost of the up-keep, carrying charges and all municipal assessments which may be imposed upon my said home during the lifetime of my said wife.</p> <p>“Third: I give and devise unto Albert D. Cuskaden and Albert J. Feyl all my property real, personal and mixed, subject to item two hereof, in trust as follows:</p> <p>“A. To manage, sell, invest and reinvest the same, and to pay the rents, issues and profits thereof to my said beloved wife, Marietta Steel-man, and my children, John D. Steelman, Annie M. Cuskaden and Millard F. Steelman, during their respective lifetimes, share and share alike, hereby directing my trustees and executors to pay to each, his or her respective share monthly, 'beginning six months after my decease.</p> <p>“B. Upon the death of my said wife I direct that the share theretofore paid to her shall be -equally divided among and paid to my said children, or the survivor or survivors of them during their lifetime..</p> <p>“C. Upon the death of any or either of my said children, leaving issue him or her surviving, then and- in such event I direct that such share of my estate upon which he or she shall have been receiving the rents, issues and profits, shall become the absolute property of the issue of such deceased child; should either of my said children die without issue, him or her surviving, then and in such event I direct my executors and trustees to pay the share theretofore paid to said deceased child to the survivor or survivors of my said children, share and share alike during the life or lives of said survivor or survivors.</p> <p>“D. Should any or either of my said children die without issue leaving him or her surviving a wife or husband then and in such event I direct that one-half of such share of my estate upon which he or she shall have been receiving the rents, issues and profits, shall become the absolute property of such wife or husband, and that the rents, issues and profits arising from the other one-half of said share theretofore paid to said deceased- child to be paid to the survivor or survivors of my said children, share and share alike, during- the life of said- survivor or survivors.</p> <p>“First: I do hereby ratify and confirm my said last will and testament in all respects, save so far as any part thereof shall be revoked or altered by this • present codicil, and in. particular, save so far as the same relates to the giving and devising of any part or portion of my estate in trust for my son, John D. Steelman, during his lifetime, as to which particular I do hereby revoke and alter my said will as follows: It is my will and I do direct that the part of share of my estate in and by my said will given and devised- in trust to my said son, John D. Steel-man, shall be held in trust for Edna Feyl and Marion Steelman (children of my said son, John D. Steelman), and the rents, issues and profits thereof paid- to them during the lives of my beloved wife, Marietta Steelman, and my children, Annie M. Cuskaden and Millard F. Steel-man, or the survivor of them, and upon the happening of the last mentioned event the said Edna Feyl and Marion Steelman shall be entitled-to receive the principal so held in trust for them, share and share alike.</p> <p>“Second: Should either the said Edna Feyl or Marion Steelman die without issue before receiving her share of said principal, then and in such event the share of said decedent, 'both principal and interest, shall be paid to the survivor in accordance with the terms of my said will and. of this codicil thereto.”</p> <p>The will is dated May 24th, 1912; the codicil, February 18th, 1914. Annie M. Cuskaden, the testator’s daughter, died March 30th, 1916; the widow, December 5th, 1916.</p>

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

<p>Appeal of the city of Newark from an order of tlie court of chancery advised by Vice-Chancellor Lane.</p>

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

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

<p>1. Tlie finding of a lunacy commission as to the mental state of the testator is not conclus.ve, but only, prima facie evidence of tlie facts found, and may be overcome by satisfactory evidence.</p> <p>2. Under the evidence in this case held that the testator possessed, the mental capacity requisite to make a valid will.</p> <p>3. Where a citation was duly served upon a person interested in the probate of a will, and that person signed a consent to the probate which waived any objection thereto, and afterwards made application to be heard in opposition thereto, a ruling that, as that person had made default on the first day of the hearing- and not offered sufficient legal excuse therefor, she would be permitted to participate in the probate proceedings from thence on, but that the testimony before then taken should stand without any right on her part to recall the witnesses for cross-examination, was reasonable and within the proper exercise of sound discretion.</p>

<p>On appeal from a decree of the court of chancery advised by Y ice-Chancellor Lane.</p>

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

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

Kehoe’s peculations from his clients were numerous. I know this from other cases that' have been before me or are now before other vice-chancellors. This ease bears some resemblance to the one that was before me three weeks ago, in which the present petitioner Bullis figured. “In this case the complainants foreclosed their mortgage and entered a decree for $843. Kehoe was their solicitor.

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson, whose opinion is reported ante p. 73.</p>

<p>On appeal from a decree of the court of chancery, advised by Vice-Chancellor Baches, whose opinion is reported ante p. 165.</p>

<p>On appeal from a decree of the court of chancery advised bjr Vice-Chancellor Lewis, whose opinion is reported ante ¶. 189.</p>

.On appeal from a decree of the court of'chancery advised by Vice-Chancellor E'oster, whose opinion is reported ante p. 530.

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Lane, whose opinion is reported in 87 N. J. Fq. S8J/..</p>

<p>On appeal front a decree of the court of chancery advised by Vice-Chancellor Baches, whose opinion is reported in '98 All. Rep. SJfi-</p>

<p>On appeal from a decree of the court of chancery advised by 'Vice-Chancellor Backes, whose opinion is reported ante'p. J/91.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 8k N. J. Eq. 577.</p>

The contract set out in the bill consists of two papers, one referred to as the option, dated November 3d, 1911, and the other a telegram dated October 24th, 1912, claimed to be an acceptance of the option, signed by one Montejo, the agent of the defendant.

While there was no direct proof of the commission of the offence, the testimony satisfied me that the defendant and co-respondent had both the inclination and the opportunity to commit the act, and… Held: is so flimsy that it cannot be believed. I am convinced defendant and Mrs. Waite committed the offence charged and that petitioner has shown herself entitled to a decree.

The equitable principles applicable to the situation presented by the pleadings and proofs are well settled — so well settled that there was no dispute in regard to them in the argument of counsel.