Volume 91 — New Jersey Equity Reports

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

<p>Where an adjoining owner observed the construction of improvements in violation of a restrictive covenant, when they were two-thirds completed, but made no protest and instituted no proceedings until after the work had been fully completed, his delay bars his right to a mandatory injunction to compel the removal of the improvements.</p>

<p>On. bill for reformation of deed of conveyance. On hearing on motion to strike out bill.</p>

<p>Where the complainant made her son her attorney in fact, and authorized Mm to sign deeds, endorse checks and receive any and all money due her, and the son forged complainant’s name to an assignment of mortgage, and collected the money clue thereon — Seld, as complainant had made Mm her a'gent, and he was authorized to dispose of the mortgage and receive payment therefor, the assignee acquired at least an equitable title thereto.</p>

<p>1. A judgment creditor of a chattel mortgagor with lien perfected on the mortgaged chattel may invoke the jurisdiction of equity to determine the validity of the chattel mortgage; but where the judgment creditor has elected to sell the chattel, subject to the mortgage, and has bought it in, such equitable jurisdiction cannot be invoked to restrain the mortgagee’s action of replevin without any showing that the law courts will not be able to fully determine the rights of the parties.</p> <p>2. Where a judgment creditor who bought in a mortgaged chattel on,, execution sale filed a bill in equity attacking the validity of the chattel mortgage which the mortgagee was seeking to enforce in an action to replevy the chattel, the bill will not be dismissed, but will be retained so that in case the. law courts are not able to do justice between the parties, equity may.</p> <p>3. Where a judgment creditor sold a mortgaged chattel under execution and bought it in at a necessarily reduced price, it would be inequitable for a court of equity to set aside the mortgage, for that would enable the judgment creditor to retain the property free from any lien at the reduced price at which it was purchased.</p>

<p>On petition for annulment of marriage. On hearing on exceptions to report of master.</p> <p>Petitioner seeks a decree annulling her marriage to- defendant on the ground that at the time of her marriage to defendant she was the lawful wife of another man.</p> <p>No defence has been made. The testimony taken before the special master fully established the fact of petitioner’s ceremonial marriage to defendant, and also the fact of her prior lawful marriage to another, and that her lawful husband- was still alive at the time of her marriage to defendant, and also at the time of the hearing, and that he had not been divorced from petitioner. It was further established that at the time of the marriage of petitioner and defendant both parties well knew that petitioner was the lawful wife of another person and that their marriage was, in consequence, void; that petitioner and defendant cohabited for about one year, during all of which time petitioner knew that her conduct was criminal; that at the end of that time she left defendant because she “felt that it wasn’t right to live in that way.” No child was born of the unlawful marriage.</p> <p>The foregoing facts were specifically found by the learned master, but a decree for petitioner was by him denied because of the equitable maxim that relief should not be awarded to one who comes into court with unclean hands.</p> <p>Exceptions, have been.filed in behalf of petitioner upon the ground that the facts established by the evidence entitled petitioner to a decree.</p>

<p>On bill, &c., for injunction. On hearing on order to show cause for injunction pendente lite.</p>

<p>Adultery committéd by a wife in Pennsylvania at a time when she and her husband resided in that state, cannot be made the basis of a decree for divorce in this state when neither of the parties had resided in this state for two years next preceding the commencement of the action.</p>

<p>Where a mortgagor to secure advances for the erection of buildings, and also the mortgagee, were culpably negligent in erecting the buildings on a lot owned by the mortgagor’s step-daughter, the mortgagee cannot maintain a bill to enforce an equitable lien against the step-daughter’s lot for the amount it was enhanced in value by reason of money supplied by him for construction of the buildings.</p>

<p>1. A grantor’s release of restrictive covenants does not preclude other parties to whom he made deeds previously, or subsequently, from enforcing their rights against any purchaser violating the restrictive covenants.</p> <p>2. The seller of land to a buyer who intended to erect an apartment-house is not entitled to specific performance where he misrepresented the dimensions of the lots and also the cost of excavating the rock on the property.</p> <p>S. In a suit for a specific performance of a contract to buy lots, the evidence held to show that when the defendant buyer contracted to take the property, the only restriction thereon that he had been informed of was as to its use for saloon purposes, and not any restriction as to the erection of an apartment-house.</p> <p>4. Where the seller sought to -take advantage of a restriction against-erecting an apartment-house, of which the buyer had not been informed, and the agent who negotiated the deal, anxious 'to secure his commissions, and the agent’s son, attorney for both parties, knew of the other restrictions, hut did not inform the buyer when the contract was signed late -at night, the seller is not entitled to specific performance.</p>

<p>On bill for the construction of a will.</p>

<p>1. The surety of a defaulting trustee may, as against the creditors of the trustee, recover the proceeds of property purchased by the trustee with trust funds, on the principle that a surety is entitled to be relieved from the dishonesty of his principal by compelling him to return the loot.</p> <p>2. A cestui que trust may trace and recover trust funds unlawfully diverted by 'his trustee.</p> <p>3. The Orphans Court act as to insolvent estates (section 99) does not apply to trust funds in the hands of decedent at his death.</p> <p>4. A substituted trustee who, in ignorance of the fact that the deceased trustee who had misappropriated trust funds, had used the same to purchase land, taking title in his own name, filed a claim as a creditor in the orphans court against the estate of the deceased trustee, did not waive the right to trace the funds into the land.</p> <p>5. Where a trustee and guardian with the joint funds of the two estates purchased land, taking title in his own name, the proceeds realized by the executor of the guardian and trustee inure to those two estates.</p>

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

<p>1. If there is nothing contrary in the will, the mere giving of general legacies, and the passing of real and personal property in a residuary clause, makes the legacies a charge on such property.</p> <p>2. To determine Whether general legacies are chargeable on residuary real property, this court-must construe the will in its entirety and give effect to the intention of the testatrix with the aid of extrinsic evidence as to the condition of her estate, and the objects of her bounty.</p> <p>3. Considering the entire will in this case, general, legacies to her nephew and executor and others are chargeable on the realty mentioned in the residuary clause, despite the provision that, should the personal estate be insufficient ,to pay pecuniary legacies, the executor should sell certain specified land which the testatrix regarded as of great value,,but, in fact, was not, so that its proceeds were insufficient.</p> <p>4. In a suit to determine whether general leg'acies are chargeable on the residuary estate, a letter of the scrivener who drew the will, offered to have the same effect a^ if he had been called and testified, is inadmissible on the ground that what the testatrix told him to do and what he omitted to tell her is inadmissible.</p>

<p>On a bill to remove a trustee of a voting trust, who was also the president of the company, on the ground that he extravagantly employed an agent to endeavor to obtain certain contracts, and paid him $40,000; that he participated with others in a distribution of the profits of the company in the form of bonuses, aggregating $400.000; that he violated the spirit of the voting trust agreement, in that he interfered with the technical force at the company’s plant, and that he insisted upon the resignation of one of the directors of the company, contrary to the spir't of the voting trust agreement — Meld, that while the charges, so far as they are proved, do not justify the granting of the relief prayed for, yet the situation of the voting trustees demands the appointment of one not interested in the company to fill a vacancy in such voting trustees, and that this court will make such appointment.</p>

<p>It is the duty of an intending purchaser of land which is in the possession of a person other than the proposed grantor to inquire of the occupant and ascertain the rights under which he holds, and if he does not make such inquiry, he is chargeable with notice of such facts as the inquiry would have revealed.</p>

Appeal of A. Mitchell Palmer, alien property custodian. On appeal from the court of chancery advised by Vice-Chancellor Lane, whose opinion is reported in 89 N. J. Eq. 390.

<p>On appeal from a decree of the ordinary. On motion to dismiss appeal.</p>

<p>1. As there is in a sale’s contract, under Com/p. Stat. p. 4650, an implied warranty of the right to sell, of quiet possession and against encumbrances, unless a contrary intention appears, a bill of sale conveying only the seller’s “right, title and interest” would be cogent, or even in a proper ease conclusive, evidence of such contrary intention, since ordinarily it would not be open to the buyer to contradict the written instrument.</p> <p>2. The rule that such a bill of sale, conveying only the seller’s “right, title and interest,” is cogent or conclusive evidence of the seller’s intention to exclude the implied warranties mentioned is not applicable to a suit in equity where the buyer may have the written conveyance reformed to accord with the contract which was in fact made.</p> <p>3. The evidence in this ease held to establish that it was intended to convey an absolute title, although the conveyance warranted only the seller’s “right, title and interest,” and therefore the intention not to warrant was not proved.</p>

<p>Where a testator directs in -his will that all his property shall go to his children -in equal shares, and in case one of his children dies without issue, ¡bis or her share shall be equally divided among his other children, and five children survived him, -one of whom died without issue after the, death of the life tenant, having devised all his estate to his wife, the wife’ takes her husband’s share, as his one-fifth interest was vested in him, and passed by his will.</p>

<p>Where moneys belonging originally either wholly to the mother, or in part to- her and in part to her daughter, are deposited by them in a bank in their joint names, and at the same time they both sign and deliver to the bank a writing -stating that “this account and all money to be credited to it belongs to ns as joint tenants and will be the absolute property of the survivor of us; either and the -survivor to draw,” upon the death -of the mother the undrawn moneys belong to the surviving daughter.</p>

<p>W'here a mortgage does not expressly pledge the rents, issues and profits of the mortgaged premises as further security for the payment of the debt, the rents accrued prior to the appointment of a receiver in a foreclosure proceeding (appointed on the application of the second mortgagee) belong to the mortgagor or the owner of the fee, and such receiver will not be directed to collect and apply them in payment either of unpaid taxes or interest on the mortgages.</p>

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

0 N. J. Eq. 602, whose opinion is as follows: “The bill in this cause is filed to compel the specific performance of a contract for the purchase of real estate in the village of South Orange.

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

<p>1. Where a bill prays for answer without oath, such’ answer is not evidence for defendant, but is available to complainant as evidence in his favoi*.</p> <p>2. In such .case complainant is entitled to use so much of the answer as makes in his favor without being bound by that part which is against him. ’</p> <p>. 3. A bill in equity to redeem a pledge will not lie unless it alleges some other ground of equitable jurisdiction.</p> <p>4. Such bill will lie when it. sets up a proper case for account in equity and discovery.</p>

<p>1. A written contract will not be reformed in equity because of a mistake, in the absence of fraud, unless it is mutual, that is common to both parties, and each under the same mistake as to its terms.</p> <p>2. To reform a writing to meet the alleged intent of one party who avers a mistake, when it accurately expressed the agreement as understood by the other, would be as far from expressing the agreement as before, and injure one party at the cost of precisely an equal wrong to the other, and therefore to warrant a reformation for mistake the demonstration of the mistake must be clear and satisfactory, such as produces a strong conviction of the truth.</p>

<p>On appeal frdm a decree of the court of chancery advised by Vice-Chancellor Stevenson and reported in 90 N. J. Eq. 347.</p>

<p>1. A voting trust of a submarine boat corporation formed from the aggregate stockholders to preserve the identity of those who formed and developed the company, and to protect the stock 'from purchase by German government agents during the world -war, removes it from the category of illegality.</p> <p>2. In a suit by a trustee of a voting trust to remove a co-trustee, evi•dence that the defendant refused to serve as a director if the plaintiff was chosen on the board, and therefore required the voting trustees to choose between him and the plaintiff — Held, insufficient to show that the defendant had acted only with a view to his own aggrandizement, or that his conduct militated against the interests of the stockholders of the company.</p> <p>3. An expenditure by a trustee of a voting trust to an agent to secure contracts with the United States navy for the construction of submarines, paid by the trustee individually — Held, not a misapplication of trust funds, and the fact that such agent was a blood relative of a prominent official, was not evidence of such a debasement or corruption of public officials as to warrant 'his removal at the suit of a co-trustee.</p> <p>4. In a trustee’s suit to remove his co-trustee, where prodigality was charged, and appropriations were made with complainant’s assent of $50,000 annual salary to defendant with a bonus of $75,000; of a salary to complainant of $25,000, with a bonus of $130,000, and equally extravagant salaries to others, the equitable doctrine of clean hands is not inapplicable, and in any event, the parties being in pwri deliete, equity will leave them where it finds them.</p> <p>5. A trustee may not be removed at the suit of a co-trustee where no reasonably, positive and convincing proof has been produced to substantiate allegations of extravagance or corruption.</p> <p>6. In the absence of a corporate request for such action, the corporate power to fill a vacancy caused by the death of a trustee cannot be taken from the corporation and voluntarily assumed and exercised by the court.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Griffin, and reported in 90 N. J. Eq. 469.</p>

<p>On appeal from the court of chancery advised by Vice-Chancellor Griffin, whose opinion is reported in 90 N. J. Eq. 122.</p>

<p>A petition was filed in the court of chancery to annul a marriage on the ground that the pretended marriage was not a real marriage but was made in jest, as a vacation frolic and without willingness or consent to anything more than the formal ceremony. It is held, upon an examination of the testimony, that the evidence justifies the decree of the court of chancery dismissing the petitioner’s petition on the ground, that the parties were not married in jest.</p>

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

<p>On appeal from a decree in chancery.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, whose opinion is reported in 107 Atl. Rep. 480.</p>

<p>On appeal from a decree of the court of chancery, reported in 91 N. J. Eq. 1.</p>

<p>On appeal from a decree of the court of chancery, reported in 91 N. J. Eq. 1.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, and reported in 90 N. J. Eq. 22.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Foster, whose opinion is reported in 90 N. J. Eq. 129.</p>

Thereafter, in December, 1916, defendant presented his petition in which he alleged that he had learned since the hearing of the case, that during its pendencji', petitioner had been guilty of improper conduct with one William H. Lyons, and thereupon the entry of the decree in petitioner’s favor was stayed, and leave was granted to defendant to file a cross-petition for divorce on the ground of adultery alleged to have been committed by the petitioner with one William H.…

-’ “In Februar]^ 1909, Mr. Oppenheim caused the realty company to be incorporated for the purpose of taking title to certain properties in New York City and Elberon, New Jersey, of which he was the owner. Deeds for the New York property were executed and recorded.

<p>In a suit in chancery to recover,commissions alleged to be due to an agent for accomplishing a sale, on the “trust fund theory,”1 evidence is fully examined and held not sufficient to sustain the claim of the complainant for such commissions.</p>

On suit for absolute divorce on the ground of desertion, and cross-suit for limited divorce on ground of cruelty. Heard on bill, answer, counter-claim and testimony taken in open court.

<p>On petition for annulment of marriage, and report of Special Master Rosenberg, with depositions.</p>

<p>1. The general rule is, that where specific performance of a contract to convey lands is sought where the wife of the vendee has not signed the contract of sale and refuses to sign the deed, neither abatement of the purchase price nor indemnity against the inchoate dower of the wife will be decreed unless the wife’s refusal to release has been induced by the husband.</p> <p>2. But where the wife was present at the time the contract was signed and acquiesced therein, and gave encouragement to the transaction, and where irreparable injury will result to the vendee if the contract for sale is not specifically performed, this general rule does not apply, and a decree for specific performance will be made, with order for a bond of indemnity against the wife’s inchoate dower,-if she still refuses to execute the deed, or if that is not given, an abatement of price of the value of the dower as if consummate.</p> <p>3. A bill for specific performance of a contract for sale of lands may be maintained if filed before the date named therein for performance when the contract has been repudiated, and performance refused.</p>

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

<p>1. A purchaser of premises in the possession of a lessee, having knowledge of the lease, is chargeable with notice of an option of purchase therein.</p> <p>2. An option to buy, in a lease, is unenforceable if the price is not named, and no standard is established by which -the price may be determined with certainty.</p>

<p>1. A suit to quiet title is an equitable action of ejectment, and the rights of the parties are to be treated and adjudicated according to the strict rules of common law, one of which .is that conditions working a forfeiture are to be construed strictly.</p> <p>2. Where land was conveyed to a proposed railway company with the condition in the deed expressed that the premises shall revert to the grantor if the grantee “for any reason whatever shall permanently cease to operate and maintain its street railway thereon after having commenced the operation thereof,”' such premises do not revert when the railroad was never built or operated over the land described in the bill, though it had been built and operated over other lands described in the same conveyance. The recovery of the unused portion by the complainant can only be predicated upon adverse possession for the statutory period.</p>

<p>On motion for preliminary injunction and counter motion to set aside process.</p>

<p>On final hearing, &c.</p>

<p>A lease perpetually renewable, where the rent reserved is one peppercorn, a release of which may be procured by paying the cost of drawing the necessary papers, is not such a defect of title as will excuse the nonperformance of a contract to purchase lands providing that the property was “to be conveyed by warranty deed by a record marketable title free from all encumbrances.”</p>

<p>1. An injunction to restrain picketing and other coercive measures should not be granted on a preliminary hearing except in a case where the facts clearly establish that the acts and conduct which the complainants apprehend and fear are threatened and will probably be committed.</p> <p>2. A brotherhood made a co-defendant in a suit to enjoin picketing, &c., which is paying strike benefits -and is sufficiently within the jurisdiction of the court to offer proofs through one on whom 'the rule to show cause was duly served, will, though its headquarters are not disclosed, be held to be within the jurisdiction of the court.</p> <p>3. Since the strike against all the complainants was called and went into effect at the same time, and has been directed and managed in the same way and by the same parties, and the result has been common to all the yards of the complainants, the complainants may join in an action to restrain picketing, &c., in view of the provisions of the rules of this court.</p> <p>4. The rules of this court are to be liberally construed.</p> <p>5. The provisions of contracts making the yards of the complainants closed shops to all non-union men are against public policy and invalid.</p> <p>6. Peaceful picketing engaged in for the purpose of persuation may be enjoined.</p>

<p>1. Where complainants seek to restrain defendant from suing them in a foreign jurisdiction, the restraint will be .granted if, and only if, complainants clearly show that the prosecution of the foreign suit is against equity and good conscience.</p> <p>2. Whore complainants show that the prosecution of the foreign suit is oppressive and harassing to them, and was so intended by defendant; or that defendant thereby evades, and intended so to do, an established policy of the laws of this state, defendant will be restrained from prosecuting the same.</p> <p>3. Qua-re. Is any further proof requisite of actual intent by defendant to harass or evade other than the intent which will be presumed of the natural and proximate effects of the acts done?</p> <p>4. The residence and the location of their established places of business of the parties, and especially of the complainants, are elements in determining whether or not defendant’s prosecution of the foreign suit is inequitable.</p> <p>5. Semble. The prosecution of the suit in the foreign jurisdiction would rarely, if ever, be restrained by this court, where both parties either resided or had their established places of business in such foreign jurisdiction.</p>

<p>On bill, &c. On motion to strike out special replication.</p>

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

<p>On bill, &c. On rule to -show cause.</p>

<p>On application to set aside an order for proof of will in solemn form.</p>

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

<p>A surrogate is entitled, under section 200 of the Orphans Court act (3 Comp. Stat. p. 3887), to one-tenth of one per cent, for auditing, stating and reporting an account of an estate over $50,000 and not exceeding $500,000.</p>

<p>On application to establish a will.</p>

<p>1. Where guardians invested in .securities on which interest had accrued, commissions were improperly allowed on the collection of the interest as income.</p> <p>2. Where the income received by a guardian from a ward!s estate exceeded the ward’s requirements, and the excess was carried to the principal of the estate and invested, commissions were properly calculated on the income, but improperly allowed again on the excess as principal.</p> <p>S. Under our statute regulating commissions, where two guardians turned over the estate to the ward on her majority, commission was improperly allowed on the accrued interest on the securities turned over, as it had never come into the hands of the guardians.</p> <p>4. Where the rate of commission was fixed by hn order of the orphans court, and the sum of percentage allowed by the decree confirming their account, the remedy of the ward was by appeal either from the order or the decree within the period of three months limited by law.</p> <p>5. Where the sum allowed guardians as commissions was within the limits prescribed by statute, in the absence of a timely appeal directly attacking the allowance, it must be assumed to have been arrived at by the orphans court after due consideration.</p>

<p>The court of chancery has no jurisdiction to enjoin summary proceedings by a landlord to dispossess a tenant where no equitable right is involved.</p>

<p>1. On appeal from a decree of the court of chancery great weight is given to a finding upon a question of fact, because the chancellor, who hears the case in the court below and sees the witnesses and hears them testify, has better opportunities to judge their credibility than the reviewing court. But that rule imposes no restraint on the power of the reviewing court to ascertain by full investigation and analysis of the evidence what the facts are, and whether the general finding- is consistent therewith.</p> <p>2. It is permissible for a witness, in order to refresh his recollection, to use a memorandum, made by another at his dictation, which he recollects he saw made while the facts were fresh in his memory and remembers that he then knew that -the particulars therein mentioned were correctly stated.</p> <p>3. On appeal from a decree of the court of chancery, where the character of a party for truth and veracity is unimpeached, and his testimony is uncontradieted, is not contrary to circumstances in evidence, and contains no inherent improbabilities or contradictions which alone or in connection with other circumstances in evidence excite suspicion as to the truth of the testimony, it will be given effect.</p>

<p>1. A tona fide purchaser of a mortgage for valuable consideration is entitled to enforce it as against any latent equities in favor of third persons against the mortgagor.</p> <p>2. A married woman may mortgage or pledge her property to secure the debt of her husband or any other person; but such mortgage will not be valid against her creditors in the hands of a mortgagee who at the time of taking it had notice or knowledge of her previous indebtedness.</p>

<p>1. A contract to purchase laud induced by material misrepresentations as to the restrictions to which the land is subject will not be enforced in equity.</p> <p>2. The expression of an opinion as to the cost of excavation necessary to erect a building on the land contracted for is not sufficient to avoid specific performance, when both parties have an equal opportunity to judgk of conditions and no representation of knowledge is made by the seller to induce the contract.</p>

<p>A (girl) child from her birth was retained, with the consent of her father, by the maternal grandparents, the mother having died at the birth. The child was raised by the grandparents until she reached the age of three years, when .the father, whose circumstances had changed in the interim, claimed her upon habeas corpus. — Held, that in the absence of satisfactory proof of parental unfitness, the father, as the iegal custodian of the child, was entitled to her possession.</p>

<p>On appeal from the court of chancery. See opinion of that court, 90 N. J. Eq. 404.</p>

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

<p>On appeal from a decree advised by Vice-Chancellor Backes, ■whose opinion is reported in 90 N. J. Eq. 78.</p>

<p>On apiieal from the court of chancer}'.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Baekes, and reported in 90 N. J. Eq. 410.</p> <p>Appeal of Sloss-Slieffield Steel and Tron Company.</p>

The defendant, Ellis L. Foster, sold his farm and the grantee made a mortgage to him to secure a part of the price, which mortgage Foster assigned to his wife. Foster had, prior to this sale, endorsed the notes of a corporation called the Sands-ICline Companjr, and upon these complainant has recovered judgment against both maker and endorsers.

following opinion: November 14th, 1918, defendánt Sanxuel Campbell and his wife executed a written declaration of trust of certain real estate and personal property in Cape May county.

, a corporation; the loan was evidenced by a note dated March 1st, 1918, m'ade’by Corcoran to- Lask, which note is unpaid. Held: at which meeting there is recited to have been present, Abraham Levay, forty-five shares; Abraham Eriedberg, forty-fiv-e shares; John J. Corcoran, ten shares; at that meeting there was authorized the issuance to Levay & Eriedberg, or their designee, of $39,000 in stock, and Levay & Eriedberg, at the same meeting, directed the…

<p>On petition, &c. On final hearing on master’s report ex parte.</p>

<p>On petition for divorce. On final hearing on pleadings and proofs ex parte.</p>

<p>1. Where lands 'are devised in the first instance- in language indeterminate -as to- the quantity rof ithe estate from which am -estate for life woul-d result1; by implication, and words adapted to- the creation of a power -of disposal without restriction a-s to the mode ;bf execution arc added, the construction will -be -that an estate in fee is given; bnt where the quantity of -the estate of the taker is expressly -defined for life, the suporadded Word® will be construed a® a mere gift of a p-ower of disposition.</p> <p>2. Downey v. Borden, 38 N. J. Law 460, approved and followed.</p> <p>3. The language of the will under consideration, held to constitute a devise in fee-simple.</p>

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

<p>On petition for divorce. On hearing on exceptions to report of special master.</p>

<p>Where by mutual mistake a policy of fire insurance was issued to cover property om i'lbe nortinoesterly corner of certain streets, when it should (have read .as covering property om the northeasterly comer of the same streets, the policy should be reformed to express the contract on w’liicih the minds of the parties met. amid which it was intended by them should be reduced ,‘lo writing as 'agreed upon.</p>

<p>.1. If it be undesirable, impractical or contrary to' public policy to carry out a testator’s special intention regarding a charitable bequest, then, effect will be given ¡bo his general charitable intention, if presenil</p> <p>2. Where ia legacy was given to construct a fireproof building for an orphanage, and .the amount of the legacy iis mot sufficient for that purpose, the bequest miay be applied oy yres toward the construction of such a fireproof building in such manner as will most nearly effectuate, his intention.</p> <p>3. Where such application involves the appointment of a trustee to carry out .such purpose, the attormey-general of New Jersey should be brought in as a party.</p>

<p>On motion to modify restraint.</p>

<p>On bill for construction of will.</p>

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

<p>1. Where it is sought ito- muMi a complainant twice in damages for breadlas of covenants involving the same subject-matter, resulting in a single injury, equity will protect against such evil consequences.</p> <p>2. IDo invoice such relief the bill must he framed tto show with certainty and defmiiitentes ithie double liability as to amount amd pienso», and must be established by saitisfiaetory proof.</p>

<p>Where a husband has made advances to a deserting wife to induce her to return to Mm, which .advances she repulsed, stating that she was through with him, 'such desertion i.s 'obstinate, and the petitioner is entitled to a divorce for desertion.</p>

<p>1. Baxental guardianship by nature -and for nurture is not assignable except by statutory provisions.</p> <p>2. Where a mother gave her child to- another, she being in- destitute- and friendless circumstances at the time, and an absolute 'a-md formal surrender not being agreed up.on at the time, and, -subsequently, reclaims her child, being in circumstanices to- properly oare- for -and support her, she will be granted possession of the chi-lid unless thereby the well-being of tire child is jeopardized. ¶11€ infant’® welfare, all matters considered, is paramount anid compelling in the eyes of the chancel,tor as parens patria.</p> <p>3. Hire petitioner, being a minor, cannot sue- -out a writ of habeas carpus, but the chancellor will, in a proper case, appoint a next friend to do so.</p>

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

<p>1. Where the validity of a marriage is attacked upon the ground that one of the parties to it had a husband or wife living ait the time it was contracted, the party asserting its invalidity must not only prove the former marriage, but also that ithc former 'husband or wife was living at the time of contracting the second marriage.</p> <p>2. In the absence of proof to the contrary, the law Will presume that a man wais mot alive ’at a given time, when the consequences of his being alive at that time is that another person 'has committed a criminal act, and contain children are thereby made illegitimate.</p>

<p>1. In a suit by an, executor 'and sole devisee of a. decedent seeking to eampei th»e defendants to convey to Mm real estate, the title to which the decedent had placed in defendants’ maméis — Held, that under section 4 of the Evidence act testimony by the defendants that decedent took title in their names for fear that a second mortgagee might resort to the property is inadmissible.</p> <p>2. Where a decedent placed the title to property in the mames of the defendants, and one of the defendants prepared and delivered to her a lease for life, reserving mo rent, and providing that the defendants should at the decedent’s option,- convey title for one dollar, -and decedent, about an hour before her death, signed a letter directing reconveyance — Held, that though, the letter did not reach the defendants until after her death, there was .a sufficient exercise of the option.</p> <p>S. Where decedent placed the title to property in the names of the defendants, they could not, by preparing and delivering a so-called lease and option, require the decedent to demand reconveyance in her lifetime, and the sole devisee of the decedent is entitled to equitable -aid to compel the defendants to convey the property.</p>

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

<p>On motion to strike out bill of complaint.</p>

<p>1. Where a husband provided his wife with merely food and shelter in his father’s house and refused to perform any of his other marital duties, refusing sexual intercourse with her, holding no intercourse whatever with her and not providing her with clothing, he is guilty of willful and obstinate desertion.</p> <p>2. After the continuance of such a desertion for a time sufficiently long to indicate its actuality, the wife is no more required to remain in that house than she would be in a separate abode from which the husband had fled.</p> <p>3. The subsequent leaving of the bouse by the wife by no means presupposes an acquiescence by her in the desertion — especially where, by remaining, she Was subjected to indignities by other members of the household.</p>

<p>1. Where 'the proofs show that a landowner had filled in a dátela which was part ¡oí 'an adjacent public road, amid toad also taken drawn fences otn the public road, and had cultivated and raised crops on the soil thereof, thereby interfering with the flow of drainage water along the -road, and thereby rendering travel along the road difficult 'and at time® dangerous, the landowner will be enjoined ran final toeairing from committing such public nuisance, at ibhe suit of tire township which is responsible for ittoe maintenance of the road, even though the township may have a remedy at law against the defendant.</p> <p>2. Although equity ordinarily has interfered only with reluctance to restrain a public nuisance for which an indictment would lie, nevertheless the creation and maintenance in a public highway of conditions producing actual danger of injury to person or property of travelers, is a public injury which will be restrained.</p> <p>3. The power of a court of equity to restrain a public nuisance which is also a misdemeanor is undoubted; and the tendency is toward the exercise of that power more frequently than in former days.</p>

<p>On petition, &e. On application for preliminary restraint.</p>

<p>1. A devise of -specific real estate to complainlamt for ¡her own use during her life, and with power lof appoi-nifcmtenit “to hospital or o|ter equally desirable purposes,” is void as to the power of appointment— mot being a gift for neUigious, -cfanirtabie or educational purposes.</p> <p>2. A power of sale eoltalterlal ¡to, or in aid of, suck void gift is ¡likewise void.</p> <p>3. In determining testamentary intention as expressed in a will and codicil, the dispositions made by the will are not to be deemed altered or revoked further thiam dis -absolutely necessary ito give -effect to ithie eod-idl.</p> <p>4. Held, tb-ait tlesflatrix -expressed no intention., by the codicil in this case, to enlarge domplla-iniamt’s life estarte.</p> <p>5. Decree for specrfie parfionmiamee -by vendee denied- — complainant having neither ia fee-simple -estarte nor power -of sale.</p>

<p>1. When a fraternal cmgtanization; pays the proceeds of an insurance policy into court on a bill of interpleader, it waives its right to resist the claim iof the named beneficiary ¡on the ground that she was not one of those whom the member was authorized by the constitution and by-laws of the organization to have designated as .his beneficiary.</p> <p>2. Such objection cou-ld be raised ¡only by the organization, and Would not entitle the members’ heirs to the proceeds of the insurance policy upon payment thereof into court by the organization.</p> <p>3. A beneficiary has an insurable interest in the life of an insured if the continuance of the life ¡of the insured would b.e to the beneficiary's advantage or benefit, or if -the insured be under some obligation to render the bemefidary care and assistance in time of need.</p> <p>4. In this ¡action between a named beneficiary who was mot a member of one of the classes from which a beneficiary might be chosen, according to the constitution and by-laws of an organization, on the one hand, and the benefidJaa-y’is itisbers ¡on the other — Held, that the proceeds- should be awarded to- -the named -bemeficiairy, in view ¡of the ¡equities of the case.</p>

<p>1. If a wife comtrac-ted veniereal disaaise from .her husband, sbe was justified in leaving him.</p> <p>2. A bu,stand whlo conisentied to this wiifefe sepanatioini wiitihio-ut mialdmg any effort to ter miniate it, through ishe left Mm withrout justifiable cause, he being willing she should go, cannot subsequently complain of it.</p> <p>3. Evidence held insufficient to, .sustain the petitioning husband’s changes rof -adultery ror desertion, against the defendant.</p> <p>4. A decree dismissing a wife’s petition- for constructive desertion on the ground that her husband communicated to her a venereal disease and so forced her to leave him, — Held, res adjudicada, as a bar to considering the sarnie facts -as a ground for granting ,a diviorce to- the wife for her husband’s adultery, set up by her as a counter-claim in' his subsequent action for diviorce.</p>

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

<p>1. Where ¡a testator- devised real property .to his son, subject to a charge of $100 each to his two 'brothers, the son by renouncing cou'ld not entitle himself to a. third share in1 Itlhe real 'estate dm common with his brothers free of the charge, on the theory that the result of his renounc-, ing the devise was that the testator died intestate. Such legacies are equitable lienis on the real estate in whomsoever the title may be, and the renunciation relieves ¡the devisee of persona! liability only; and the lien :of the brothers may be foredoised by ¡Sale of the land.</p> <p>2. Such renunciation having been mlade under ia misunderstanding as to the devisee’s rights, land not having changed the situation, but only injured himself, forfeiture of the surplus which may ¡arise on foreclosure of the equitable liens, will mot be enforced.</p> <p>3. The devisee of land subject to charges loin legacies was entitled to possession otn prdblafle ¡of the will, 'and the lauds were ¡Hable foa- the testator’s debts for one year after his dieath, the legacies being payable within a year from the .probate ¡of the will, and. interest running ¡on them from that date.</p> <p>4. If one of the legatees, whose legacy was madia ia change on the land, dies before the legacy was .paid, the legacy Itlo him wias vested in him' at his death, ‘and is to be considered ¡as personalty for distribution1.</p>

<p>By -virtue of Gomp. Stat. p. 8877 § 178; ameinded first Supp. p. 1157, the orphans court has power to construe a will for the purpose of decreeing idistrihiuiticm according to its directions and provisions (-the comstitutiouiaiity of which statute, however, has frequently been mooted, though never decided), but has mo power over a question concerning the discretion exercised by trustees in the dishunsem'emt of income to legatees, that being peculiarly a question of equitable cognizance and triable in Chancery alone.</p>

<p>1. Incompetence. Evidence held not to establish incompetence, although testatrix was aged and feeble and had at times been non compos mentis.</p> <p>2. Presumption of undue influence. An old lady of eighty, feeble in mind and body, made her will in favor of one in confidential and dominant relations, who had opportunities to exercise undue influence in its procurement — Held, “with other slight circumstances,” to raise a presumption of undue influence.</p> <p>3. Overcoming presumption. The presumption may be overcome by the denial of those implicated, but to have that weight the testimony must be impeccable and convincing.</p> <p>4. Credibility of denial. The denial of the beneficiary is insufficient to overcome the presumption where it appears to be untrustworthy and undependable from other testimony by the beneficiary which is improbable and incredible.</p>

<p>Where a fund was left by Will tire income therefrom1 to be .p-aiid to each of testator’s three 'dMlclren, until ¡each lof isaid children stall reiach the age of itwemtyoue, respectively, thie said money® to be paid, nevertheless, not to ithe said .children tout to1 itlhie widow 'of A, or such other legal guardian as -they may have for .their benefit — Held, that 'the direction of payment to 'the widow of A is not indicative of the capacity in which she was to receive tibie -inaoime, hut 6s merely descriptive iof one of the persons to whom the income was to -be paid, as guardian of the children, the bequest being -to the children.</p>

<p>On appeal from a decree of the court of chancery advised . by Vice-Chancellor Griffin, reported in 91 N. J. Eq. 46.</p>

J. Eq. 535. The Central Eailroad Company of New Jersey made a written agreement with the .complainant giving it the privilege of soliciting on the platform of the Lakewood station orders for baggage delivery, hack, taxicab and omnibus service, from arriving passengers, and also the privilege of soliciting on westbound trains orders for like service to and from Lakewood station.

The litigation began in 1909 and arose out of a situation created in 1892 by deeds of the Villa, Site Compány and the Haworth Improvement Company, to the appellant, Copeland, and a contemporaneous trust agreement executed by him. The first step in the suit wasi a bill by the Villa Site Company praying an account by Copeland as trustee and his removal by the court.

<p>On appeal from a decree by tbe chancellor dismissing a petition for divorce advised by Advisory Master Grey.</p>

The question at issue was one of fact — i. whether the parties intended by an oral agreement, pending the execution of 'a .written agreement, to pay to complainant a weekly salary and expenses, plus a royalty of thirty-three and one-third per centum, on the sales of a patented article. The special master and the vice-chancellor having found such to be the fact, our review of the testimony confirms their conclusion.

<p>Where .the president of a .company acquires stock in, that company hy purchase, ®nd, isMbsequemtly, sells the stack so acqiuired, together with the ebook Ihe ;ownled prior to suck purchase, 'to lanloither, he is mot acting in a fiduciary capacity as to the company of which he was president, and is not liable to account to the stockholders of that Company for his profits in the transaction.</p>

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

The husband must prove her refusal and corroborate it. The mere fact that they didn’t have sexual intercourse doesn’t prove any refusal upon her part. líe has sworn to the fact that he hasn’t had sexual intercourse with her for nine years. He has attempted to corroborate it by evidence of the daughter Irene, by evidence of Mrs. Phillips and by evidence of the defendant herself.

<p>On appeal from the court of chancery advised by Vice-Chancellor Lewis, whose opinion is reported in 90 N. J. Eq. 373.</p>

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

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

<p>On appeal from a decree of the prerogative court advised bj Vice-Chancellor Lewis, whose opinion is reported in. 91 N. J. Eq. 298; sub nom. In re Leonhard.</p>