Volume 92 — New Jersey Equity Reports

<p>1. Where complainant filed a bill to foreclose the rights of. redemption in four certain parcels of land, and one of the owners of the fee thereof appeared and answered asking to redeem the lands in question, and to that end asking for proof and adjudication of the amount required to be paid by her for such redemption, the amount of search fees that may properly be included in such adjudication is fixed by statute, the maximum rate being $40 a lot, under the statute of 1909.</p> <p>2. An award of costs in chancery is discretionary with the court except whore otherwise directed by statute. In the case .at 'bar—Held, that complainant .is entitled to costs, but not including search fees, because the statute does not ¡authorize their' inclusion in taxed costs on foreclosure of tax liens; in these cases they .are collectible as part of the expenses of redemption and may be included in the decree.</p>

<p>, On application for leave to take further testimony in the nature of an application for rehearing after an adverse special master’s report in an ex parte ease for nullity of marriage.</p>

<p>On final hearing on bill and answers.</p>

<p>1. The corroboration of a petitioner, required by law in order that a divorce may be granted, need not 'be that given by ian.oth.eir or other'-witnesses, but may be furnished by surrounding circumstances adequately established, subject to the rule requiring the best evidence of which the nature of the case is susceptible.</p> <p>2. When the testimony of another witness or witnesses is not obtainable to corroborate the testimony of a petitioner for divorce, but her testimony is corroborated by surrounding circumstances adequately established, then her testimony as to defendant’s handwriting or signature sufficiently proves it to-be legal evidence of the fact.</p> <p>3. So far as Williams v. Williams, 81 N. /. Eq. 11, holds that the testimony of a petitioner, as to the handwriting or signature of a defendant in a divorce suit, can only be corroborated' by a witness other than the petitioner, that case is overruled.</p>

<p>Vendee’s suit for specific performance of contract to convey real estate.</p>

<p>1. The grantee under a deed absolute in form, but given as security, though under obligation to the grantor not to convey the property in violation of the grantor's right to reconveyance, is not a trustee for the grantor to the extent of being prevented from purchasing the property free of any claim of the grantor at a sale under foreclosure of a prior mortgage.</p> <p>2. Evidence being examined, held, that the conveyance in question was made to secure a creditor, and was not a conveyance in trust for the grantor.</p> <p>3. Evidence being examined, held, that the conveyance in question was made to secure notes of the grantor held by the grantee, and not to secure the execution of a syndicate agreement, executed before the conveyance was made.</p> <p>4. A grantee under a deed absolute in form but really given to secure certain notes, who purchased, while some of the notes remained unpaid, the property conveyed at a sale on foreclosure of a prior mortgage, _ acquires absolute title-to the property against the grantor and her assigns, who were parties to the foreclosure suit.</p> <p>o. A subsequent encumbrancer oan protect his interests by paying the amount of the prior mortgage after sale on foreclosure to the mortgagee, and taking an assignment of his bid. The sheriff’s deed to him conveys full title.</p> <p>0. A subsequent encumbrancer whoi assumed the debt secured by the prior mortgage is bound to protect the owner against any liability on the prior mortgage, but is not bound to protect the equity under the prior mortgage for the benefit of the owner.</p>

<p>On motions to open proofs and admit a deed in evidence, and for a reargument of the cause.</p>

<p>On motion for a preliminary injunction enjoining the defendant United Confectioners, a corporation, from unfair competition.</p>

<p>1. Where a will bequeathed certain legacieis and charged a bequest and devise to his son with the payment of them, further providing that said legacies are not to create a lien upon the property given to his son, the legatees have a cause of action against the son individually for the amount of the legacies, but no lien against the property he receives under the will in question.</p> <p>2. Such action may be brought in a court of equity, even though it might possibly be maintainable in a court,of law.</p>

<p>Where a bank discounts a note of a corporation, and the corporation gives a mortgage on its property to an officer of the bank to secure the note and the bank afterwards knowingly accepts a note of an individual to take the place of the note originally discounted, the mortgage is extinguished.</p>

<p>On suit to effect rescission of a conveyance of corner lot and brick building thereon on the ground that the parties were under a mutual mistake in supposing that the building rested wholly on the lot, whereas it encroached upon adjacent property belonging to third parties. Alternative relief of reformation praj'cd for.</p>

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

<p>1. A gift of personal property from a husband to a wife must be clearly proved. There must be clear and convincing evidence'of a delivery of the property with the intention of divesting himself of all dominion and control of it, and of vesting it in his wife.</p> <p>2. Where such clear and convincing evidence is not produced, the. husband may have an accounting from his wife as to his personal property taken by her and sold to a third party.</p>

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

<p>1. If a wife be a virgin and apt after three years’ cohabitation, the husband will be presumed to be impotent, and the burden will be upon him to overcome the presumption by proof that he is not at fault, in an action by the wife to annul the marriage, such rule being the essence of the “doctrine of triennial cohabitation.”</p> <p>2. In the present cause—SelU, that such presumption is not overcome although physicians testified that the husband appeared to be normal and the husband testified that he simply forbore sexual intercourse because it was painful to the wife.</p> <p>3. A three years’ cohabitation is not essential to show a husband’s impotency, where it may be proved before, although a three years’ trial is required to raise the presumption of impotency.</p>

<p>1. The words “next or nearest of -kin” in' a testamentary gift of the remainder to the person or persons living at the death of the life beneficiary, who shall then be “my next or nearest of kin on my father’s side,” mean the class nearest in blood.</p> <p>2. Were the words “next or nearest of kin” in a testamentary gift to such kin, used with the meaning of next of kin in the statute of distributions, it would not, where testator’s nearest blood relatives were second cousins, avail cousins further removed, under the statute: P. L. 1918 p. 179.</p>

<p>1. Tn the absence of fraud, extrinsic evidence that a written contract does not mean what is plainly written as understood at the time, is not admissible either at law or equity.</p> <p>2. A corporation which contracted to pay a trustee of one of its organizers a cash sum, in addition to corporate stock for the transfer of property which he held in trust for the organizer, cannot procure restraint of an action at law by the trustee to recover the cash payment because of the trustee’s agreement with the organizer that he would apply it to the payment of stock subscriptions.</p> <p>3. A corporation is not liable oñ a promise made by one of its organizers to pay for services rendered in connection with property turned over to the corporation.</p>

<p>1. Equity has no jurisdiction over a bill to remove a cloud from a title where neither party was in actual possession of the land, and each claimed constructive possession by virtue of his paper title. The question to be determined is the ownership of the legal title which is a purely legal question, and must be tried at law.</p> <p>2. A bill to quiet title will not be dismissed merely because the controverted question is the ownership of the legal title. The complainant will be given an opportunity to establish his legal title by an action at law. 1</p>

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

<p>1. The provisions of a contract between an association representing nearly all the building contractors of New York City and Long Island and an association representing the labor unions of these communities, binding the contractors to employ only union men in their enterprises therein, and having for its object the closed shop and the monopolization of the labor market by the unions, violates public policy as to monopolies.</p> <p>2. A sympathetic strike, merely to force the employer in other territory to comply with the invalid provisions of such a contract, is without just cause or excuse, and is unlawful.</p> <p>3. The owner of a building and its architect became parties to a conspiracy to prevent, by means of a sympathetic strike to compel a closed shop at another place, the performance by complainants of their' contract to erect the structural steel of the building, where after the strike was called without their knowledge, they, to prevent a general strike, ordered complainant off the job because they were going to complete it with nonunion labor. ,</p> <p>4. A building contractor will be allowed an injunction to prevent a breach of contract, rendering performance of the work impossible, by unlawful means and to serve unlawful ends, to the injury of the contractor’s business, .the remedy at law being inadequate, and the damages being incapable of ascertainment at law.</p> <p>5. An injunction to restrain interference with the complainant’s performance of a building contract by unlawful means and for an unlawful purpose will not be denied because specific performance of the contract may be an incidental result, though because of lack of mutuality of remedy suit for specific performance would no.t lie.</p> <p>6. Section 98 of the Corporation act does not reach a contract made out of this state.</p> <p>7. A contract entered into outside of this state by foreign corporations and to become binding only when accepted by one of them at its home office, does not come within the interdiction of section 98 of the Corporation act because signed by one of the parties to it within this state.</p> <p>8. The right of a foreign corporation which has not complied with the provisions of section 9S of the Corporation act, to maintain an action in this state on a contract made out of this state, is unaffected by the reciprocity provision of section 101 of the Corporation act where the law of the other state, though more exacting and imposing a mere drastic penalty, penalizes only for contracts made in that state.</p>

<p>1. Where taxes and other municipal liens were attempted to be adjusted by commissioners of adjustment, they should not group several lots in one parcel and adjust the liens in a single sum for each year against the group.'</p> <p>2. Where error is discovered in the report of the commissioners for adjustment of taxes and other municipal liens, the circuit court may refer the matter back for correction.</p> <p>3. Where the first report of the commissioners of adjustment as to taxes and other municipal liens was defective, and the second report recited that it was readjusted by order of the court, it will thereafter be presumed when tax titles are questioned that such an order was made, though none can be discovered.</p> <p>4. As the owner of land is charged with knowledge of the recital in a report of the commissioners of adjustment that it was readjusted by order of the court, he cannot, many years afterward, during which time the order may have been lost, attack a tax title based on the second report, on the ground that there was no order of court.</p> <p>5. Where the original report of the commissioners of adjustment of taxes and other municipal liens was defective, and a second report was made, certiorari is the proper remedy to attack the second report on the ground that it was not authorized by order of the court.</p> <p>0. That_the remedy by certiorari to attack such a report has been lost by lapse of time does not give a court of equity jurisdiction.</p> <p>7. Where the complainant secretly went about the premises for the purpose of asserting in the future that the defendant who held a tax title was not in possession, notwithstanding that the complainant knew of the defendant’s title, a court of equity will resolve every doubt against the complainant.</p> <p>S. In a suit to quiet title to lands which had been sold for. taxes but to which the complainant, the successor in interest of the original owner, asserted that he had acquired adverse title, evidence held insufficient to establish such title.</p> <p>9. Under section 119 of the act concerning conveyances a tax deed given by a municipality under the Martin act carries with it possession as an ordinary conveyance in view of the provision that the purchaser shall take good and sufficient title to the property sold in fee-simple, and that such a deed shall be presumptive evidence.</p> <p>30. Where the lands were vacant, and there was no evidence of occupancy, a tax title under the Martin act is superior, as it is where the grantee was in possession before the successor to the original owner, who asserted an adverse title, instituted suit to quiet title.</p>

<p>1. A surviving executor and trustee under a will given a power of sale can maintain proceedings against a creditor of a legatee to secure the discharge of a notice of Us pendens as a cloud on the title of the estate, and incidentally for a construction of the will though all persons interested in the will are not made parties to the cause.</p> <p>2. Such proceedings may he instituted by petition by the executor without his becoming a party to the suit in relation to which the notice of Us pendens is filed.</p> <p>8. Such proceedings may be maintained under the general powers o£ the court to remove a cloud on a title, and also under sections T and 9 of the Chancery act of 1915, and the notice may be discharged, in so far as it affects the title to the lands belonging to the estate, with provisions protecting the rights of the judgment creditor against the interest of the debtor in the proceeds of the sale of such lands.</p>

<p>Complainant, receiver of an insolvent corporation, filed a bill alleging a transfer of funds of the company while insolvent to creditors in payment of the debt owed them, joining the creditors and directors of the corporation'as defendants, asking that the transfer be adjudged null and void and for a decree against the creditors that they repay, and against the directors for the amount of the company’s loss if the creditors do not repay.—Eeld, on petition by the defendant creditors for removal to the federal court, that the controversy between complainant and the defendant creditors is separable from that between complainant and the directors.</p>

<p>1. In suit for partition, where the parties are in possession of the lands with equitable title thereto, having the right to conveyance and possession, such conveyance will be deemed to have been made and partition will be decreed.</p> <p>2. Where a will gives the entire estate directly to a tenant expressly for life, and at the death of the life tenant gives “the same, or so much as shall remain” to other beneficiaries, and there are no other provisions of the will indicating an intention otherwise, the life tenant takes by implication an unlimited power of disposal of the remainder.</p> <p>3. Actual seizin of the husband or of some one to his use is a requisite of dower; and actual seizin of the wife is a requisite of curtesy. Hence, where lands are in the possession of a tenant for life, the wife or husband of a remainderman predeceasing the life tenant takes no dower or curtesy.</p> <p>4. Where lands are in the possession of a tenant for life, the wife or husband of a living remainderman has, however, a contingent interest which will be protected in partition.</p> <p>5. The estate for life given to a husband by descent by P. L. 1917 oh. SI § 6, adds nothing to his interest in lands where he has an estate by the curtesy consummate.</p> <p>6. In suit for partition the alleged .divorce of one of the co-parceners from* his former wife is not proved by oral testimony thereof—the wife not being made a party defendant.</p> <p>7. Where a life tenant of a share in lands sold in partition has also an unlimited power of disposal over the remainder interest in such share, such life tenant is entitled to have paid to her the entire net proceeds of sale of such share.</p> <p>8. Quwre. In such case is either the sale in partition or the payment of the proceeds equivalent to an exercise of the power of disposal?</p>

<p>On motion to open decree pro eonfesso.</p>

In the matter of the alleged contempt of Albert Thorry et aL On proceedings to punish for contempt. On application for stay, &c.

<p>1. The personal estate of a testator is the primary fund out of which legacies shall be paid.</p> <p>2. Where a testator bequeathed legacies in his will in excess of his personal estate, and made a specific devise of his real estate-in trust for the benefit of Ms wife and daughter during their lives, giving his trustee a power of sale of his real estate, but directing the trustee to invest the proceeds of such sale for the benefit of his wife and daughter, the deficiency in the payment of the legacies is not charged upon the real estate.</p>

<p>On appeal from an order allowing- counsel fees in the orphans court.</p>

<p>1. In appraising (pursuant to the Transfer Inheritance Tax act) the value of shares of stock owned by decedent in a close corporation, it is not error for the comptroller to consider among the assets of the corporation an item of good-will carried on the books of the corporation and sworn to by the treasurer of the corporation—there being no evidence that such item was not in fact an asset of the company.</p> <p>2. Where a transfer of stock in a corporation is made by decedent in his lifetime under circumstances clearly indicating it to. be in lieu of a testamentary disposition, it is a transfer made in contemplation of death within the meaning of the provisions of the Transfer Inheritance Tax act, and hemca taxable.</p> <p>3. Decedent, about one year before his death, aged seventy-one. although in no expectation of early decease, contemporaneously with the making of his will, assigned and delivered to his son shares of stock constituting about three-fourths of his entire estate—the son agreeing in return to pay to decedent a life annuity equal in amount to the annual dividend on the stock.—Held, that such transfer was made “in contemplation of death,” and properly taxed.</p>

<p>On appeal from a decree in chancery advised by Vice-Chancellor Backes, whose opinion is reported in 90 N. J. Eq. 445.</p>

This is an appeal from a decree of the prerogative court affirming a decree of the Essex orphans court on exceptions to an account. of the trustee under the will of Charles Dowden, who died in 1880. Among the assets of the estate were two hundred and thirty-one shares ol the stock of the American Insurance Companj' of Newark.

J. Eq. 293. This is a foreclosure. The conveyances are deeds in form but are admitted to be mortgages. The complainants were mortgagees in possession and concede their liability to account. The only questions argued in this court relate to the accounting. The difficulty arises out of the peculiar character of the mortgaged property. It is situated along the Atlantic ocean and Manasquan river at Manasquan inlet. It was, and is, subject to the inroads of the sea and river.

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

<p>1. The mere bringing of a suit at law in a foreign jurisdiction to enforce an alleged legal claim is not using the process of such courts to harass and oppress the defendant in that action; there must be something more to justify a court of equity in enjoining the prosecution of the suit in the foreign jurisdiction.</p> <p>2. The institution of a suit by -process of attachment, when allowed by the laws of the state where the action is instituted, cannot of itself be said to be an oppressive use of process, for it merely gives the plaintiff in such an action a lien on the property of the non-resident debtor, which is not legal oppression.</p>

<p>On appeal from a. decree, of the court of chancery advised by Vice-Chancellor Lewis, whose opinion is reported in 92 N. J. Eq. 106.</p>

“The answer is a categorical denial of the allegations of the bill, with the qualification that the defendant denies ‘that she voluntarily and consciously agreed to sell the property for1 $11,000.’ “The meaning of this ambiguous phraseology was brought out at the trial where it was set up- that the purchase price agreed upon was $15,000, and that when Mrs. Plager signed the contract it was with the understanding that that, and not $11,000, was stipulated.

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson, whose opinion is reported in 91 N. J. Eq. 186.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Baekes, whose opinion is reported in 91 N. 3. Eq. me.</p>

<p>On appeal from an order of the court of chancery advised by Vice-Chancellor Backes, and reported in 91 N. J. Eq. 225.</p>

<p>On appeal from,,a decree of the court of chancery advised by Vice-Chancellor Lewis, and reported in 91 N. J. Eq. 386.</p>

The following is a copy of the whole -will, except the date and attestation: “ T, Almeda Stedenfeld, being of sound mind, memory and understanding, do make and publish this my last will and testament in manner following, that is to say. “ ‘The one half (%) of my estate is to go to my son William S. Stedenfeld, and if he should die before his wife, she is to get One Hundred and Fifty Dollars ($150.00) only from this one half (%) of the estate the balance to be divided equally…

decree of the court of chancery advised by Vice-Chancellor Griffin, who filed the following opinion: “The bill in this cause is filed for maintenance based on extreme cruelty. The parties were married in January, 1915. A week before the first child was born, which, .as I recall it, was the latter part of 1915, he threw a shoe at her, strildng her in the stomach, apparently -without reasonable provocation.

The inquiry is: Does the evidence justify with clearness a finding of fact that an option of purchase' for $10,500 was given at the time the lease was made ? “The lease contains what has been referred to' as an option of purchase. I scarcely know whether it can. be called that or not. It is clearly meaningless, or forceless, at best.

Upon reflection I see no reason to change them. I shall not reiterate them except in so far as may be necessary to indicate the reasons which have led me to the final determination. “The couple were married July 29th, 1915. Complainant was nineteen years old; the husband was thirty. He had two children—girls—now ten and eleven years old respectively. His prior wife had been divorced by him on the ground of adultery and is still living.

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis, whose opinion is reported in 90 N. J. Eq. 396.</p>

For convenience I shall hereafter refer to this contract as, having been made by complainant as party of the first part. It recites that complainant was desirous of engaging defendant as its sales manager; that he was desirous of accepting that position and that the parties were desirous of fixing their respective rights and obligations.

Obviously, it is in no sense an interference with the internal affairs of the Mary A. Kiddle Company of Pennsylvania for this court to permit that corporation to maintain in this state a suit to recover from an officer of that corporation, who is a resident of this state, the value of assets of that corporation which the officer has appropriated to his own use in violation of his trust duties to the corporation.

certain contract providing for the mamifacture and sale by defendant of the patented machines and the payment of royalties to complainant, alleging, inter alia, the failure of defendant to account for and pay royalties to complainant as required by the contract and praying for an accounting and a decree for payment of the amount found due upon such accounting. ' “The bill contains further allegations as to alleged fraud in connection with certain later patents, and a prayer…

<p>Appeal of Morris Plan Company.</p> <p>On appeal from an order of the court of chancery.</p>

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

Vass to Frank M. Warner and his wife. The doubt as to the validity arises from the situation existing between the parties at the time the alleged gift was made.

<p>1. A decree of nullity of marriage may be rendered in a ease at the suit of the wife only, when she was under the age of sixteen years at the time of. the marriage, unless such marriage be confirmed by her after arriving at such age.</p> <p>2. Amendments must be germane, that is akin or closely allied to the pleading amended; and while they are allowed in equity with great liberality, the doctrine has not been extended so far as to permit the substitution of an entirely different case from that made in the original bill or petition.</p> <p>3. At common law a girl is capable of consenting to marriage if she be twelve years old, and suit will not lie under the general equity jurisdiction of this court to annul the marriage of a girl over twelve, even if she fraudulently represented her age to be eighteen when it was thirteen.</p> <p>4. A suit for nullity of marriage under the general jurisdiction of equity must now be brought by petition in conformity with the provisions of P. L. 1916 p. 109.</p> <p>5. A statute providing that a marriage may be declared void where the female is under a certain age leaves the common law rule otherwise unaltered.</p> <p>6. The consent of parent or guardian is not necessary to the validity of a minor’s marriage unless a statute expressly declares that a marriage contracted without it shall be void; and there is no such statute in this state.</p> <p>7. Where a statutory remedy is given in chancery the pleading which initiates it, whether bill or petition, cannot be amended so as to make an entirely different case under the general equity jurisdiction of the court, where such statute is not declaratory of the existing power of the court, but creates a new and theretofore unafforded cause of action.</p> <p>8. Only an infant defendant in a divorce suit who is upwards of sixteen years of age can defend in person (P. L. 1915 p. 589) ; under that age the defendant must be represented by guardian ad liiem.</p>

<p>On bill, &c. On petition for return of a chattel in the possession of the receiver of an insolvent firm.</p>

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

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

<p>'Where a husband at the time of marriage suffered from a physical condition which rendered sexual intercourse with a normal woman impossible, the wife was entitled to a decree of nullity, although prior to the marriage the husband informed the wife that there could be no children but that sexual intercourse could be performed.</p>

<p>Mandatory injunction will be granted against a grantee who, with knowledge and against protest, built on his lot nearer than twenty-five feet from the street, in violation of a building restriction contained in a recorded deed to his grantor, which by its terms binds all successors and assigns.</p>

<p>Where a doubtful title to real estate is involved, this court will not compel specific performance of a contract to convey it; such doubtful title must be settled in a court of law, and the bill filed for specific performance in this court will be held until the question of title is determined in the law courts.</p>

<p>1. While under the Orphans Court act a creditor of a decedent’s estate who does not present his claim within the tim'e limited may not recover at law against the executor or administrator, he is preferred to legatees' and -distributees, and is entitled to be -paid if assets remain after the statutory settlement, and, therefore, under section 75, may maintain a bill against the executrix for. discovery and accounting.-</p> <p>2. The remedy given a creditor under section 72 of the Orphans Court act is available only where the estate has been judicially settled.</p> <p>3. The right of a creditor under the Heirs and Devisees act is an independent and additional remedy to his right to maintain a bill for discovery and accounting against the executor.</p> <p>4. The right of a creditor, who has not filed his claim within the time limited -to an accounting, is not confined to the orphans court, but the court of chancery has jurisdiction over all trust estates and will exercise it on a proper occasion.</p>

<p>On motion to open final decree.</p>

<p>1. An attorney recovering a judgment is entitled to the taxed costs as well as to be compensated for his services under P. L. 1914 p. 410.</p> <p>2. On a bill of interpleader relating to the disposition of the proceeds of a judgment, this court may determine the amount of compensation due the attorney who obtained the judgment.</p> <p>3. A stop-notice of a materialman under section 3 of the Mechanics’ Lien act is defective if it does not state a demand upon the builder and his refusal to pay.</p>

<p>The continuity of a husband’s willful and obstinate desertion of his wife is not interrupted by his draft into the army.</p>

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

<p>1. If a husband and wife make a compact to dispose of their combined estates, the terms of which are expressed in their mutual wills, the contract will be enforced in equity. Equity will not interfere with the probate of the wife’s later will, made in violation of the contract, but will enforce the contract against her estate by impressing a trust upon the assets.</p> <p>2. Such contract to be enforceable in equity must be founded upon a valid consideration certain and defined, equal and fair, and sufficiently proven.</p> <p>3. Wlhere the survivor, in such a case, accepts the benefit of the testamentary gift of the other, he becomes legally bound to carry out the obligation of the contract between them.</p>

<p>Where decedent deposited $G00 to the credit of herself or another, with intention that on her death the deposit should go to the other, though either of them could have checked out the deposit, the decedent had the right to revoke the gift to the other, which she did effectually by having the name of the other stricken from the account on the books of the bank and on the pass-book.</p>

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

<p>On bill, &c. On motion for a rehearing.</p>

<p>1. Taxes become liens on property only by express legislation and can be collected only in the manner provided by statute.</p> <p>2. The existence .of a tax lien must not be left to doubtful construction.</p> <p>S. Under the Collateral Inheritance Tax act of 1894 such a tax is not a statutory lien, but simply creates a tax out of which a lien may be fashioned by following the procedure provided for that purpose.</p> <p>4. A sale of decedent’s real property by the executor in order to pay the collateral inheritance tax must be made within the time limited for sales of lands for the payment of decedent’s debts, or, if afterwards, before alienation by the devisee.</p> <p>5. Under the act of 1909 (P. L'. 190:9 p. 3$5 § 5), such taxes are in terms made a lien on real property until paid.</p>

<p>1. A bequest of the residue of an estate to certain persons and their heirs and assigns to be divided equally between them, is a ¡bequest to the legatees individually in common, not to them as a class.</p> <p>2. Under the act (3 Comp. Stat. p. 3874 § 169) where the nearest of kin were nieces and nephews, and the descendants of deceased nieces and nephews, the nieces and nephews living formed the stock entitled to the fund, the survivors taking pro rata, and the descendants of deceased nieces and nephews taking per stirpes.</p> <p>3. The act (P. L. 1914 P- 69) did not control the distribution of intestate property of one dying after its passage, but before July 4th, 1914.</p>

<p>The act regulating the operation of auto buses on city streets (P. L. 1916 p. 28S) is for the protection of the public, and for revenue purposes, and is not for the benefit of street railway companies, and a company operating a street railway under 1¡ Comp. Btat. p. 5021, has no standing to enjoin the use of the streets by jitneys on the ground that the city’s consent under that act is invalid.</p>

<p>The fact that one operating a jitney in a city took out one policy of insurance to cover liability in two municipalities, cannot be taken advantage of in a suit by a railway company for an injunction against the operator of the jitney to enjoin the use of the city’s streets by the jitney.</p>

<p>1. Where land stood in the'name of K. when contract of sale was made by L. in his own name it will, in a suit for specific, performance of such contract, be held to have been bought with L.’s money, it appearing that by L.’s direction, conveyance of the lands had been made to K., his young sister-in-law, and that'L. treated the lands as his own and received the rents thereof, I\. not testifying, and the only evidence that payment was made by K. being L.’s statement to that effect.</p> <p>2. Specific performance of a contract for sale of land will be decreed though the title stands in the name of another who holds the land on an implied trust in favor of the one contracting.</p> <p>3. Where a conveyance is made to another than the one paying the consideration, the law implies a resulting trust in favor of him and those claiming under him.</p>

<p>1. Where a bill for specific performance was filed fourteen days after the defendant agreed to deliver the deed, but failed to do so, the complainant is not guilty of laches.</p> <p>2. The contract of sale in this case sufficiently sets out the terms of the mortgage to be given.</p> <p>8. Where necessary, in the absence of definite terms in the contract, the court will presume it to have been the intention of the parties that a mortgage to be made shall be made payable on demand, and also that the interest rate shall be the legal rate.</p> <p>4. The omission of a. due date for a mortgage and the rate of interest thereon will not defeat specific performance of a contract.</p> <p>o. Acknowledgment and execution of a deed by a wife who had not acknowledged the contract of sale on which it was founded, may be'taken as evidence that the wife was willing to release her right of dower.</p> <p>fi. A decree may be entered directing the husband to deliver to complainants a deed executed by himself and his wife, where it appears that his wife is willing to release her rigflit of dower; or in the alternative to deliver to complainants a deed subject to his wife’s inchoate right of dower and payment into court of an amount sufficient to indemnify complainants' against any claim of dower, or the complainants may retain out of the purchase price the value of the dower right.</p>

<p>1. One who has a claim for tort against a grantor at the time when he makes a conveyance and subsequently reduces it to judgment, is entitled to the benelit of the statute as to fraudulent conveyances as a creditor as of the time of the conveyance.</p> <p>2. In a suit to set aside a conveyance as fraudulent, the undisputed testimony of the grantor and the grantee (who were brothers) as to the indebtedness which was the basis of the conveyance, together with the appearance of age of the evidence of indebtedness, held sufficient to show consideration.</p> <p>3. An insolvent may prefer a creditor, and the creditor may accept the preference as security, or to extinguish his debt, so long as the creditor did not participate in the purpose of the insolvent to prevent others from getting his property to satisfy a judgment.</p> <p>4. A conveyance by an insolvent to a creditor, though ~bona fide as to him, will to tibe extent of his debt be held as security as against other creditors.</p> <p>5. The wife of an insolvent who joined in her husband’s deed to prefer one of his creditors is not entitled to dower in the proceeds of sale where the conveyance is treated as security as against other creditors.</p>

<p>On bill for specific performance.</p>

<p>1. No majority, however large, has a right to divert any of the joint capital to any purpose not consistent with and growing out of the original fundamental joint intention as is stated in the certificate of incorporation.</p> <p>2. A corporation organized prior to the act of 1899 (P. L. 1899 p. 334) is not authorized to lease its property to another corporation without the consent of all of its stockholders.</p> <p>8. The act of 1S99 does not empower a corporation to lease its property to a corporation of another state, but merely authorizes leases between corporations of this state.</p> <p>4. Equity will not countenance a proceeding whereby a corporation leases its property to a foreign corporation for the purpose of avoiding payment of federal income taxes, such being against public policy.</p>

Jenkins, late of West Orange, died the 29th of December, 1916, leaving a last will and testament, which was admitted to probate the 10th of January, 1917. The will was executed on the 11th of June, 1915.

<p>The act concerning adoption of minors clothes the adopted child with all the rights and privileges which, by the act concerning wills, the statute of distribution and the statute of descents, have been conferred upon children born in wedlock, including section 20 of the Wills act relating to after-born children. t</p>

<p>1. Where a husband and wife were living together in harmony, and each was observant of his or ¡her marital duties, the domicile of the husband was presumptively the domicile of the wife.</p> <p>2. Where a wife before her marriage lived part of the time in Atlantic City, where she was in business, and part of the time in Philadelphia, and after the marriage the husband and wife followed the same practice, it was the husband’s legal right to select which residence should be the family domicile.</p> <p>3. Where a husband, who lived part of each year in two cities, called on the assessor in one of them and had his name placed in the assessor’s blotter for the coming assessment, such conduct showed a selection by the husband of such city as his domicile.</p> <p>4. Wlhere it is shown that a husband had selected such city as his domicile, the mere fact that his wife described herself as a resident of another city did not present the question of her right to a separate domicile, even assuming that the law would give her a right to do so.</p> <p>5. On dismissal of a proceeding to probate a will because the testatrix was not domiciled in New Jersey, the court, being without jurisdiction over the estate, had no authority to allow counsel fees, costs and expenses.</p>

<p>The testator was at the time of his death a large holder of the stock of a close corporation, and liable for its debts to a considerable extent by endorsements and written guaranty. By his last will and testament he bequeathed the residue of his estate, after payment of his debts, including a debt due his wife, and the liquidation of the debts of the company, to his children. It appeared that the executors had ample funds to pay the debt to the wife and that every obligation of the company on which the testator was personally, liable or his estate obligated by endorsements or otherwise authorized by his will had been paid, and that the company was able to pay all its debts. On bill for distribution— Held (a) That the gift of the residue vested at the death of testator, and that postponement of distribution until debts were paid did not render the gift one in violation of the rule against perpetuities, (Z>) That the proper construction of the will limited the debts of the company to be paid before distribution to those for which testator was personally’ liable as guarantor or^endorser.</p>

<p>On appeal from a decree advised by Yice-Chancellor Buchanan.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Fielder, and reported ante p. Wl.</p>

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

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

<p>On appeal from the court of chancery, reported ante p. 56</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 91 N. J. Eq. 366.</p>

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

Complainants pray specific performance of the agreement. “Defendants now move to dismiss the bill on the ground that it discloses no cause of action and in their notice of motion specify as a reason (among others) that the agreement was executed and delivered on April 11th, 1920, which date fell upon Sunday, and therefore the agreement is void under the laws of this state. “The court will take judicial notice that April 11th, 1920, fell on a Sunday.

At this time, however, I wish to outline my views sufficiently to enable counsel to at least apprehend the present condition of my mind in the matter. “I am unable to see at this time any possible defence to this ease, unless, perchance, it he a defence growing out of the mental condition of the defendant—the want of intelligent and volunta.ry action up'on her part at the moment she signed the contract of sale.

On appeal of Lorenzo E. Woodhouse, executor. On-appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson, and reported ante p. $8.

Stat. p. 16P7, as amended b3r P. L. 1918 p. 119') has not been complied with. That section provides that no estate of a married woman in lands shall pass by her deed without a previous acknowledgment made by her that she signed, sealed and delivered the same as her voluntary act and deed, the officer having first make known to her the contents thereof. A contract for the sale of her interest in lands must comply with this statute. Chas-smani v. Wiese, ®0 N. J. Eq. h0\8.

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, and reported ante p. 130.</p>

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

<p>1. Want of power for copulation is impotence, but mere sterility is not.</p> <p>2. The procreation of children is one of the ends of matrimony—in fact the most important one; and when a woman, knowing herself to be barren and incapable of conceiving and bearing children, does not disclose that fact to her intended husband, he, upon discovering such sterility after marriage, may bring suit and obtain a decree for annulment on the ground of fraud under the general equity jurisdiction of the court of chancery dissociated from its statutory power to annul for,' specified cause.</p> <p>3. A decree nisi is the first decree in nullity as well as divorce suits.</p>

<p>A. suit for annulment of marriage was commenced by a feeble-minded woman, not found to be a lunatic on inquisition, upon the ground that she was of unsound mind and did not have capacity to give consent to the marriage; and her mental incapacity has persisted ever since. The-defendant not appearing, the cause was prosecuted eso parte, and was referred to a special master who has reported in favor of a decree of nullity.—Held, that petitioner did not have capacity to instruct solicitors to bring the suit. Held, further, that the cause will be stayed to allow some proper person to come forward and apply to be appointed next friend of the petitioner to further prosecute her suit.</p>

<p>1. A mandatory injunction will not be issued to require the removal of a structure'built by defendants on their own lots, but closer to. the lot line than' is permitted by the municipal ordinance, even though the ordinance is a reasonable one ,to afford' protection from fire, since, except for the ordinance, the structure was a lawful one, and-not a nuisance, and the púrpose of the injunction was only to enforce the ordinance.</p> <p>2. Equity will not enforce the penal laws of the state or the ordinances of municipal corpiorations by injunction unless the act sought to be restrained is a nuisance.</p>

<p>1. A water company organized under 3 Comp. Stat. p. 3635, and charged with a public duty of furnishing water to all inhabitants without discrimination, may adopt reasonable rules for its business and operation of its plants, which are binding on its patrons, and may be enforced even to the extent of denying water to those refusing to comply with them, such power being incident to corporations of that nature; yet they must, return to the patron such part of the advanced payment as is unearned when discontinuing his service.</p> <p>2. Under the Water act, the right of the company to enforce reasonable rules is necessarily subordinate to its recognized public duty touching uniformity and universality of service, and it must recognize and respect the paramount right of all citizens similarly situated to receive water, and cannot deny water to a tenant whose premises are adequately equipped and who is willing to pay for water.</p> <p>3. In the absence of legislative authority, there is no lien in favor of a water company on real estate for water supplied to an owner or a tenant.</p> <p>4. As between landlord and tenant there is no liability on the part of the former to pay for water supplied to the premises for the latter’s use, in the absence of an express or implied agreement to that effect. Water pipes and fixtures are appurtenances of a building, the use of which passes to the tenant, but the water is not the property of the landlord, and the water company may not impose a condition that the landlord become responsible for the charges.</p> <p>5. In the absence of legislation to the contrary, a tenant is privileged to contract for water service to' the same extent as the owner of the property, and any restriction upon, or discrimination against, a tenant’s right is inconsistent with the public duties imposed upon the water company, and, in the absence of legislation creating a lien on the real estate for water service, or other legislation of like effect, no person can be denied service because of the delinquency of a prior owner or tenant.</p> <p>6. In the absence of statute or regulation, it is the duty of a water company to lay water mains to all lateral fixtures and connections in such a manner that connection may be made with properties at the boundary lines between streets and alleys and private lots, and it is not the duty or privilege of such company to enter upon private property in ’ the construction of a system beyond such boundary line, nor of a citizen to lay pipes in the streets beyond such boundary, and owners and tenants must accept the entire responsibility for the suitable equipment of buildings to receive reasonable service.</p> <p>7. Where property is so equipped with fixtures that if a tenant should become delinquent his service could not be cut off by the water company without cutting off that of another tenant, the company cannot be required to serve tenants.</p>

<p>Where the buyer of a lot, on account of the seller’s attitude and the consequent course of dealing of the parties with reference to the contract, was justified in believing that it was not necessary for him to pay installments promptly, the buyer was entitled to notice from the seller of a change of attitude on his part, or a notice that his rights would be terminated unless he should promptly make payment of the final balance due, and without such notice the seller could not declare a forfeiture, even though the written contract made time its essence.</p>

<p>1. Under P. L. 1902 p. 259, and under its general jurisdiction over the custody of the persons of infants which the chancellor exercises as parens patria, a court has jurisdiction over the custody of the person of an infant domiciled in this state, though the father was a non-resident of the state and the mother had separated from him and brought the child with her into this state. „</p> <p>2. On petition for the custody of a two-year-old girl, evidence that the mother had separated from the father because of his mistreatment of- her, and that even visiting the father affected the child’s health—Held, to warrant an order giving the custody of the child to her mother.</p>

<p>The R. Co., after having agreed to build a bungalow for L. on land owned by the R. Co., went into bankruptcy, prior to which its managers and directors organized the B. Service, Inc., and induced L. to contract with it to build the bungalow, which it did. D. paid into the bankruptcy fund the balance due on the bungalow.—Held, that one having an unsatisfied judgment and execution against the B. Service, Inc., for materials used in the construction of the bungalow was entitled to the fund rather than the general creditors of the R. Co., that company having acquiesced in the construction of the bungalow on its land.</p>

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

<p>1. Where a suit at law on a promissory note is restrained the chancellor may direct the complainant in the equity suit to give bond conditioned to pay the party enjoined such damages as he may sustain by reason of the injunction, if the court shall find that the complainant was not entitled to the injunction.</p> <p>2. The power to require the bond rests in the discretion of the court.</p> <p>3. Where the allegations of the bill set forth a case cognizable in a court of equity, restraint of the law suit may be had, and resort to equity, without testing the ruling of the law court by appeal.</p>

<p>1. A sale in bulk is void as to creditors of the vendor, unless the provisions of the Bulk Sales act of 1915 are complied with.</p> <p>2. Though a sale in bulk is void as to the vendor’s creditors, unless the provisions of the act of 1915 are complied with this does not give creditors a claim upon the purchase price.</p> <p>3. Where a sale is void under the Bulk Sales act of 1915, creditors may execute their judgment by a levy and sale of the goods, or if unable to do so, may cause the writ to be returned nulla bona and proceed in equity against the purchaser for the value of the goods as transferred without consideration with, intent to defraud creditors.</p>

<p>A village zoning ordinance is invalid under P. L. 19%0 p. 455, where it does not apply to all persons alike throughout the zone, but provides for special permits to be granted by the board of trustees of the village after a hearing.</p>

<p>1. Complainants who contracted to use their personal and political influence to obtain contracts from the United States government for the defendant in consideration of one-half the profits on all contracts so procured, were not copartners with the defendant, since they were not to share losses as well as profits, nor were they attorneys, agents or employes, but independent contractors, between whom and the government there was no privity.</p> <p>2. A contract whereby the defendant, a building contractor, agreed to pay the complainants one-half of the profits on all contracts they might procure for Mm from the United States government, through the use of “their best efforts, influence and endeavors” with the emergency construction committee of the council of national defence, upon the recommendation of which contracts were awarded by the war department, is void as subversive of the public welfare and against public policy, personal and political influence being the only consideration for it.</p>

<p>1. The power of a corporation to prescribe the terms on which the respective classes of stock are created, and to define, limit and regulate the powers of the corporation, the directors and the stockholders, or any class of stockholders, must be exercised consistently with section 20 of the Corporation act, declaring shares of stock personal property and in subordination to such provision.</p> <p>2. If a corporation, by providing in its charter that, when a stockholder is not an officer, director or employe, he shall not 'be entitled to dividends until he surrenders the stock to the corporation and accepts in lieu thereof a ten-year dividend certificate, has arrogated to itself powers not conferred by law or against the policy of the law, redress may be had by the state through the attorney-general, but a stockholder receiving benefits in the past from such provision cannot attack it.</p> <p>3. A provision in a corporate charter that when stock becomes the property of one not an officer, director or employe, or if any owner of stock of the corporation ceases to be an officer, director or employe, he shall not be entitled to dividends in such stock unless he surrenders the stock and accepts a ten-year dividend certificate, is not in conflict with the policy of the law against restraint of trade.</p> <p>4. Where shares of stock are unqualified, restraints upon their transfer, by charter or by law, except for convenience of corporate regulations, are in contravention of public policy and void.</p> <p>5. Where the charter of a corporation provides as above stated a court of equity cannot compel payment of dividends to a stockholder who has ceased to be a director, officer or employe, because to exscind this provision from its charter, or ignore it, would give the stock qualities and characteristics not created by the incorporators or their successors, and would not merely determine, protect and enforce property rights, but would create them.</p> <p>6. If the provisions of the charter above stated exceeds the powers conferred on the corporation by the Corporation act, a stockholder who has accepted pecuniary benefits thereunder is estopped to attack such proceedings on that ground.</p> <p>7. If such provision constitutes an unlawful restriction on the transfer of stock, and is void against public policy, a stockholder who has been an active participant in the violation of the law, and who does not offer to restore what he has gained thereunder, is in pari delicto, and not entitled to relief in equity.</p> <p>S. Where the charter of a corporation contained the provisions above stated, a stockholder not complying therewith was not entitled to sue to restrain the corporation from paying excessive salaries to' directors, as excessive salaries are in diminution of dividends, and only those entitled to dividends may complain.</p>

<p>1. A solicitor, in order to raise moneys to discharge a judgment against his client, procured part from the trust company, on the client’s note, endorsed by him, and the balance from a trust estate. In order to indemnify him on his endorsement and to secure the trustee, the client assigned to him ten past-due bonds and mortgages aggregating $107,000, and the same were deposited under their joint control. At the same time the solicitor began the foreclosure of the ten mortgages and a sale was had, certain of the properties (not all) being purchased at the sheriff’s sale by a trustee for the client, thus discharging of record the security of the solicitor to that extent. Upon the delivery of the deeds the solicitor asked that the trustee execute to him five bonds and mortgages, for $S,000 each, on the property which she purchased, in substitution for those foreclosed, which security was less than the former pledge. The client says as to this request she demurred, unless the solicitor agreed to advance a sum sufficient to finish the uncompleted buildings on the premises to be covered by the new mortgages, and, upon the .solicitor so agreeing, she directed her trustee to execute the bonds and mortgages sought to be foreclosed in this suit. This agreement is denied by the solicitor. He did, however, advance certain moneys which were applied toward completing the buildings. After the making of the bonds and mortgages in question the client conveyed the premises to the Deal Beach Bealty Company. The client, in her pleadings, sets up this agreement, and prays that the foreclosure suits be stayed until the solicitor performs said agreement.—Held, 1. That the client failed in her proof of such agreement; 2. If proved, the agreement was without consideration, in that the five bonds and mortgages delivered-were merely substituted in lieu of the mortgages foreclosed, covered part only of the property theretofore pledged, and was lesser security; 3/ If proved, the client divested herself of the right to ask for its performance when she conveyed the property to the Deal Beach Bealty Company, nothing in the record showing that such company asks, or has the right to ask, that the solicitor perform such agreement.</p> <p>2. A solicitor, who had agreed to foreclose mortgages for a stipulated fee, was not entitled to the extra allowance for counsel fees allowed by the chancellor in the taxed costs.</p> <p>3. Where a solicitor has business relations with his client on his own account, the court leans most strongly against the solicitor.</p> <p>4. Where the client assumed that the solicitor would advance sufficient moneys to complete her buildings, and the solicitor d,id advance some moneys but not enough for the purpose; and thereby the client was placed in a position where the advances made were of very little value to her, under the circumstances of this case, the solicitor should not be allowed to charge the client for services rendered in connection with the finishing of such buildings, since the sums advanced were of little or no value to his client.</p>

<p>1. Attorneys who represent both parties in the matter of a sale of land, and retained some of the purchase price to answer for a judgment, are trustees for both parties, and may maintain interpleader in a proper case.</p> <p>2. The practice of the court in such cases should be liberal to persons desiring protection in making payments where it is doubtful to whom the money belongs.</p>

<p>1. Where a will provides that in the event of any of the legatees or devisees contesting it or filing a caveat against it, such legatee or devisee shall pay all expenses of both sides, a contesting legatee or devisee must pay all allowances for counsel fees and costs of contest and all other expenditures, outlays and disbursements of money connected with the contest and produced thereby.</p> <p>2. A person accepting a benefit under a will must adopt the will as a whole and conform to all its provisions.</p>

<p>1. In suit for decree of nullity of marriage for the cause of non-age under the statute, not all equitable defences are barred to defendant.</p> <p>2. Whether or not any given equitable defence may be interposed rests upon public policy.</p> <p>3. Where a husband sues for decree of nullity under the statute for the cause of non-age, an answer is sufficient which alleges with sufficient fact and circumstance to make a prima fa’aie case that the petitioner fraudulently misrepresented himself to defendant as being above the statutory age, with intent to procure the marriage, and that she contracted the marriage relying on the truth of his fraudulent misrepresentations, as otherwise she would not have done.</p>

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

<p>On application for decree of distribution.</p>

<p>On final hearing.</p>

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

<p>1. One cannot become a member of a corporation without his consent, express or implied.</p> <p>2. An unincorporated association cannot, by resolution or other act of the members present at a meeting, become changed into a corporation, there being neither authority therefor by statute nor even in the contract of association.</p> <p>3. The members of an unincorporated association present at a regular meeting adopted a resolution to incorporate the association. The officers of the association executed and filed a certificate of incorporation under 1 Oomp. Stwt. p. 125. At a subsequent • regular meeting the members present adopted a resolution of ratification. No prior or subsequent notice of the intended or attempted action was given to the members, and the action was without statutory or contractual authority.—Held (1), that such action in nowise affected the existence or property of the association; (2) that the new corporation was a distinct entity from the guosi-entity of .the association;. (3) that no member of the association, could, or did, become a member of the corporation without his knowledge and consent; (4.) that a member of the association who did become a member of the corporation did not thereby lose his membership in the association nor his interest in the association’s property. .</p> <p>4. Where, after the circumstances given above, the association’s trustees, holding legal title to the association’s property, resigned.as trustees of the association and were elected trustees of the corporation, the title to the property still remained vested in them in -trust for the members of the association. . ;</p> <p>o. Where, after the circumstances given above, officers of the corporation are elected believing the association to have been changed into the corporation, and the corporation has possession of the association’s property, and the association is left without officers or agents, the court will direct the calling and holding of a meeting of the association, under the supervision of a master, to organize and choose officers, trustees and agents in conformity to the articles of association and by-laws, and will appoint a receiver meanwhile to take and hold possession of the association's property and deliver it to the persons so chosen by the association.</p>

<p>1. The payee of a check has no legal right to exact payment on it by the bank on which it is drawn. The check does not constitute a contract between the bank and the payee and the bank has the right to elect whether to pay the cheek or not.</p> <p>2. Payment of a check by a bank on which the check is drawn, under the mistaken belief that the maker of the check has sufficient funds to his credit, is a finality and the bank cannot recover from an innocent payee of the check the amount so paid.</p> <p>3. A bank is charged with knowledge of the state of its customer’s account on which a check is drawn when it makes an election whether to pay the check or not, and the fact that the account appeared to be good when actually it was not is immaterial, so that a bank whose bookkeeper falsified an account on which checks were drawn is liable for the acts of its bookkeeper as against an innocent holder of the checks to whom the bank bad paid the amounts they called for and cannot recover such amounts from such holder on any theory that a trust should be declared in the bank’s favor in the amounts so paid.</p>

<p>1. Where on petition to remove an executor as obstructing the due administration of an estate the court found reasonable cause for the indictment, but, although finding that the defendant had been extremely annoying in his acts as executor, found no justification for removing him, but dismissed his counter-petition .asking removal of his co-executor as being without merit, and filed by way of reprisal, it was improper to settle upon the defendant the costs of the trial and a counsel feo of $300 to an attorney representing the estate.</p> <p>2. Where an executor joined with the beneficiaries of the will in petitioning for the removal of the other executor, it was improper to award a counsel fee to the petitioning executor or denial of the petition, even though the petition was reasonably founded, the petitioning executor’s prosecution of the petition in such case being a duty imposed upon him as executor, for which he could not charge or be allowed compensation.</p> <p>•3. P. L. 1920 p. 561/, is applicable only to cases of settlement of an account, and not to litigation such as was had in the case.</p>

<p>1. Where a testator left his estate to his daughter with whom he lived during the time he was from seventy-three to seventy-seven years old, instead of distributing the estate between such daughter and two other children who survived him, a presumption against the daughter of undue influence arises.</p> <p>2. Evidence held that the will leaving the property to the daughter with whom the testator lived was not the product of undue influence by the daughter.</p> <p>S. Evidence held to prove that the testator’s domicile was within the state, notwithstanding recitals in the will and codicil that he was domiciled in another state.</p> <p>4. Recitals in a will and codicil as to the testative domicile are evidential of the domicile, but may be overcome by evidence contradicting them.</p>

<p>1. Whether or not a statute confers upon a municipality the exclusive right to furnish water to individuals or corporations occupying property within its territorial limits is a purely legal question, which must be determined primarily by á court of law.</p> <p>2. A party is not entitled to a preliminary injunction when the alleged right upon which he founds his claim is a purely legal one, and is, as a matter of law, unsettled.</p> <p>3. Where the nearest point of a town’s water distributing system was over four miles from the properties of certain corporations located within the town’s limits, and the town had no mains for supplying water to those properties, and had taken no steps toward extending its mains thereto, it cannot restrain the execution of contracts between such corporations and another city for the furnishing- of water, since the performance of such contracts cannot work any present injury to the town, though it has the exclusive right under the law to furnish water to such corporations.</p> <p>4. A preliminary injunction will never be ordered unless from the pressure of a present urgent necessity; and the damage threatened which it is legitimate to prevent during the pendency of the suit, must be, in an equitable point of view, of an irreparable character.</p>

<p>1. The act to quiet titles to real estate docs not warrant a bill in •equity to contest the legality of a municipal assessment and tax sale thereon under the Martin act, that being a question exclusively for the supreme court to determine.</p> <p>2. It is beyond the power of the legislature to vest in the chancery court any of the fundamental prerogatives of the supreme court.</p> <p>3. In a proceeding to quiet title, the chancellor’s finding that the complainant has not had peaceful, continuous, open and notorious possession for a period of twenty years will not be disturbed unless it is clearly against the preponderance of the testimony.</p> <p>4. In the absence of an adjudication by a court having jurisdiction over the question whether or not sales for assessments under the Martin act were invalid, the presumption is that the claimants under such sale have good title to the disputed lands.</p>

<p>1. Chapter 178 of laws of 1909 (P. L. p. 270), permitting an appeal to this court by persons adjudged by the court of chancery to be in contempt for acts done or omitted elsewhere than in the presence of the court, does not conflict with any provision of the constitution of New Jersey relating to the jurisdiction of the court of chancery, and is not an unconstitutional exercise of power of the legislature.</p> <p>2, Where children, under seven years of age, whose parents had separated, had been left by their father, without his support, in the actual care and custody of their mother, in the household of their grandparents, in this state, and the mother took them with the family to New York, when the grandfather, for business reasons removed there, where they remained in the care and custody of their mother, but at the expense, of the grandfather—Held, in a habeas .corpus proceeding taken by the father (in which the grandmother alone was served with the writ while temporarily in this state), that the mere fact that the grandmother acquiesced in the mother and children accompanying the family, did not operate to transfer the custody or control of the children to the grandmother, nor vest her with power to remove the children from New York and produce them in court in New Jersey, against the will of their mother, and that her failure to do so, or to take any action to that end, is not contempt of court.</p>

<p>A party who has endorsed checks to which a prior • endorsement was forged, has no equity to require that the bank on which such checks are. drawn and which has paid them shall refuse to reimburse its depositor after discovery of the forgery, until questions of the depositor’s negligence in examination of returned vouchers and statements of account have been determined in litigation between the depositor and the bank.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Buchanan, whose opinion is reported in ,9.® N. J. Eq. 188.</p>

<p>On habeas corpus upon appeal from chancery.</p>

<p>1. In the absence of fraud or mistake a resulting trust cannot arise in favor of one who in purchasing land voluntarily directs and causes the deed therefor to be made and given to and in the name of a third party, absolutely.</p> <p>2. Where such a deed is made and given, one who subsequently enters into a written agreement with the party making such deed to buy the said land from him cannot acquire any greater right to question the efficacy of the deed, than the person with whom he made his contract had.</p> <p>3. Where a conveyance is taken in the name of a third party for the purpose of protecting the property from creditors of him who furnished the money, the conveyance is unassailable inter partes.</p>

<p>On appeal from a decree of the court of chancery dismissing the petitioner’s petition for divorce.</p>

<p>On appeal from the court of chancery advised bjr Vice-Chancellor Fielder, and reported in 91 N. J. Eq. 281.</p>

<p>Witnesses should not be permitted to reiterate their testimony under the guise of rebuttal; consequently, in a divorce case, the petitioner’s failure to recall in rebuttal his witness who testified in chief, in order that she might, by repeating her testimony, rebut defendant’s contradiction of it, is not a corroboration of such contradiction.</p>

the court of chancery advised by Vice-Chancellor Learning, who filed the following opinion: “I think it would be conceded by any one that the aim of a court of equity appropriately would be always to relieve a purchaser, who had failed to comply strictly with the terms of a contract, from the forfeiture of his right to purchase a property, if it should be in- the power of the court to do so.

Duncan, for his use, comfort and maintenance during the term of his natural life; and after his death I give, devise and bequeath my said estate or the residue thereof to my two daughters, Mary Murphy and Annie Hall, in equal shares, to them, their heirs and assigns forever.’ “The contention of complainant is that Edward F. Duncan is by this clause of the will given not only a life estate in the real and personal property of testatrix but also the right to sell part or all…

The bill alleges that James McElroy died intestate December 8th, 1917; that no letters of administration were granted on his estate, and that on November 28th, 1919, his wife, said Maud McElroy, assigned the mortgage to complainant.

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

of the first paragraph of the will of Charles K. Landis, deceased, touching services rendered by his sister, entitles her to receive interest on $500 from the termination of each year of service rendered by her. “The will was drawn in 1898; the paragraph of the will here in question reads as follows: “ T hereby order that all my just debts be paid, and that among these debts be reckoned five hundred dollars per annum to my sister, Matilda T. Landis, from the year 1875, for…

<p>On appeal from the court of chancery advised by Vice-Chancellor Griffin, whose opinion is reported in 92 N. J. Eq. 526.</p>

advanced by Mitsch at complainant’s request, in acquiring the title to the property in question. He asks an accounting to. determine what balance, if any, is due from himself to Mitsch, and a decree, for the reconveyance of the property to himself upon his payment of that balance. Defendant Swift is alleged to have bought from Mitsch with notice of complainant’s equitable interest.

<p>On appeal from a decree of the court of chancery dismissing a petition for divorce on the ground of adultery.</p>

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

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

<p>On appeal from a decree in chancery advised by Vice-Chancellor Stevenson, whose opinion is reported in 92 N. J. Eq. 64.</p>