Volume 93 — New Jersey Equity Reports

<p>:l. While a divorce will not be granted upon the uncorroborated testimony or admission of a party to a suit, yet the admission in a plea of guilty to a charge of adultery in a criminal court is made under the sanction of the law and the protection of the judge and cannot be presumed to be procured by the husband’s coercion or to have been made through collusion with the other spouse, and, therefore, it is substantive evidence in a divorce suit against the party who made it.</p> <p>2. A plea of guilty of adultery amounts to a conviction of the defendant making it, as conviction means the confession of the accused in open court or the verdict returned by a jury, which ascertains and publishes the fact of guilt; a judgment denotes the action of the court in which the plea is made or verdict rendered.</p> <p>3. A plea of guilty to a charge of adultery in a criminal court is. in a suit for divorce based upon the same adultery, substantive evidence against the party pleading it and is sufficient to prove the charge and support a decree of divorce.</p> <p>4. A mistake in the opinion in State v. Henson, 66 N. J. Law (at p. 609), pointed out.</p>

<p>1. Whenever a cause for action for divorce, whether for adultery or desertion, is destroyed by condonation or otherwise, the suit is not. because it cannot be, any longer pending lona fidej . it may be open and undismissed of record because of the inaction or neglect of the parties, but, the cause for action being gone, it can neither create nor continue a status depending on it.</p> <p>2. If a suit for divorce be commenced by one spouse against the other, and during its pendency the parties reunite and resume cohabitation and marital relations, the pending cause for divorce is destroyed through condonation of the offence pleaded therein, and, as that cause could not be further prosecuted, its remaining open and undismissed of record is not a bar to the running of the time of desertion pleaded in a subsequent suit for divorce between the same parties.</p> <p>3. In a suit for divorce, if the proofs show a willful, continued and obstinate desertion for two years next before the filing of the petition, the offence is complete, notwithstanding that a date earlier than the commencement of that period was alleged in the petition as the actual date upon Which the desertion commenced; but, desertion once commenced, must have been continued without interruption for the statutory period to entitle the petitioner to a decree.</p>

<p>1. A constructive desertion is one where an existing' cohabitation of the parties is put an end to by misconduct of one of them, provided such misconduct is itself a ground of divorce a, vinculo or a mensa; and it is not a necessary ingredient in constructive desertion that the husband shall entertain, in connection with his acts of cruelty, any settled purpose to drive his wife from him; it is enough if such is the natural consequence of his acts.</p> <p>2. After years of extreme cruelty by the defendant toward the petitioner, he, on the night of Januai'y 19th, 1918, came home drunk and ordered her to become a domestic servant, so as to earn money for him, which she declined to do, saying that she had never been out at service but would work in a factory; whereupon he struck her and she ran away to save herself, falling downstairs and sustaining injury; 'she managed, however, to go immediately thereafter to a justice of the peace and swore out a warrant for her husband’s arrest; the justice sent an officer back to the house with her, who admonished her husband not to molest her again, and he appears not to have done so; that night (the only one in which she thereafter remained under the same roof with him), she slept apart from him; early the next morning defendant was arrested upon the warrant isssued on his wife’s complaint and lodged in jail; he was indicted, tried and convicted and sentenced to a term in the state prison, which he served; his incarceration from the time of his arrest to the time of his discharge from prison being twenty months; the separation thus brought about was a constructive desertion of the petitioner by the defendant, commencing at the time she fled from the assault and battery; the separation, thus occasioned, at the expiration of two years after its commencement, ripened into fi cause for divorce for constructive desertion, notwithstanding that during a portion of such time the defendant was restrained of his liberty by being incarcerated in prison; and this in virtue of the provisions of the Divorce act (Revision of 1907), section 31.</p> <p>3. After separation caused by the cruel conduct of a husband, it is his duty to reform his habits, manifest his reformation, seek out his wife and apply for restoration of marital relationship, giving her reasonable assurance of his sincerity and her probable safety in resuming cohabitation with him; this the defendant did not do, and his desertion, therefore, persisted.</p> <p>4. Section 31 of the Divorce act (Revision of 1907), which provides that willful and obstinate desertion shall be regarded and held to be continued within the meaning of that act, notwithstanding that after such desertion is begun the deserting party shall be imprisoned, &e., construed and applied. <</p> <p>5. Wolf v. Wolf, 38 N. J. Bq. 128, and Hyland v. Hyland, 55 N. J. Bq. 35, distinguished.</p> <p>6. On the facts of this case — Held, that the wife is entitled to a divorce for the husband’s desertion.</p>

<p>1. The power to appoint a solicitor on behalf of a defendant wife in a divorce suit carries with it an implication of power to compel compensation of that solicitor by the husband.</p> <p>2. Suit money, as such, dissociated from alimony, is allowed in proper cases.</p> <p>8. The wife in a divorce case is entitled to an allowance to enable her to take depositions on commission in proper circumstances.</p> <p>4. If a wife has sufficient separate property, the reason for giving her either temporary alimony or money to defray her expenses in a divorce suit does not exist, and she is not entitled to either.</p> <p>5. When husbands leave their wives in European countries and come here, and, after the requisite lapse of time, sue for divorce alleging desertion in their' old countries, this court will see to it that the wives are defended at the husbands' expense, and that their suits are stayed until they provide means ample for the purpose, at least, in all cases in which the wives desire to interpose defence.</p> <p>O. When wives have stayed in Europe for years after their husbands have emigrated here, and have existed there by their own exertions, or otherwise, alimony pendente life ought to be withheld from them on the ground of laches, if for no other reason.</p>

<p>On final hearing in divorce on master’s report and depositions ex parte.</p>

<p>The court of chancery has no power to enjoin a sheriff or his deputies from preventing the holding forth of moving picture shows on Sunday.</p>

<p>The first paper in a suit in chancery (bill, petition or answer, &c.) must be endorsed with the office address in this state of the solicitor (or residence of the party, where he appears for himself), and, while no endorsement of address is necessary on any subsequent paper, it may, nevertheless, be made, and if made in a cause in which a solicitor is concerned, it must be his office address m this state, which may be supplemented by an office address out of the state.</p>

<p>On final hearing on bill for construction of will of Lewis P. Kimble.</p>

<p>1. The understanding of the parties as to when a purchase-money mortgage referred to in a contract of sale should be made payable, cannot be established by parol proof.</p> <p>2. P. L. 1918 119, abrogates the rule as to married -women’s acknowledgments that such acknowledgment be taken in the absence of the husband.</p> <p>3. A contract for conveyance of a married woman’s real estate must comply with that law, and the absence of a notary’s certificate of acknowledgment to the agreement strongly indicates that no- acknowledgment was taken. -</p> <p>J. In a bill for specific performance against one whose sole defence is an outstanding dower right in one against whom no decree can be made —Held, that a decree may be made with abatement of price to the amount of the value of the dower interest as ascertained by the mortality tables.</p> <p>5.. A contract for the sale of real estate contemplating installment payments, but not disclosing the time of payment, cannot be specifically enforced where the complainant does not waive the credit and tender cash, or a mortgage payable on demand.</p>

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

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

<p>1. Where a will specifically provides that if any beneficiary should contest it, the bequest to such person should be revoked; a legatee who has received his legacy, and executed his release of all claims against the estate is estopped from attacking the will.</p> <p>2. A bequest of the residue “to pay same over to such charitable organizations, associations or institutions” as the executors may “deem worthy,” giving the executors full discretion in determining the distribution “among worthy charities,” is valid as against the contention that the gift may be devoted to purposes which are not charitable.</p>

<p>An application by a riparian owner for an order fixing damages for decrease m rental value and arrested development on account of the pollution of a stream on the claim that conditions had changed since a decree was entered refusing an injunction and providing for payments to riparian owners at stated times while the pollution continued, must be denied where there 'is no showing of change of conditions since the decree.</p>

<p>An item leaving the testator’s residuary estate to his brothers and sisters for their lives as joint tenants, and after the decease of the last survivor of his brothers and sisters and mother giving “what remains to such persons as would by law inherit the same,” held to give the remainder not to the testator’s heirs at the time of his death, but-to those who would have been his heirs-at-law had he died at the time 'of the death of the last surviving life tenant.</p>

<p>Where a grandmother was a tenant in common with her minor grandchildren of real property, and the grandmother, and1 the grandfather, as guardian of the grandchildren, contracted to sell the property, but the court of chancery refused to permit the sale of the grandchildren’s interest, the contract would not be specifically enforced as to the grandmother’s interest, in view of a provision in the contract for sale that “should the court of chancery refuse to permit the sale of the infants’ interest * * * then the party of the first part are to return the deposit.”</p>

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

<p>1. Covenants restricting the purchasers of lots in a given area to the erection of one-family' houses constitute a neighborhood or community scheme, the regulations -of which a lot owner must observe! if he had notice thereof at the time he purchased his lot, or if he was put on his guard and reasonable inquiry would have led to such knowledge.</p> <p>2. Where all the houses in a given area were one-family houses, a purchaser of a lot in such area, under a deed restricting him to the erection of a two-family house which should have the appearance of a one-family house, was charged with notice of a community .scheme included in the deeds to others in the community, hut not in the deed to him. and may be enjoined from- erecting a two-family house, although he had inquired of</p> <p>Ms grantor and consulted the city authorities as to- whether he might build such a house, and although houses in the plot north of such restricted area and adjoining the north line -of his lot were all two-family houses, tinder such circumstances, it is the duty of the purchaser of the lot to inform himself by inquiry in the immediate vicinity, as he had knowledge from his own deed, that there were structural restrictions on the land.</p>

<p>On final hearing.</p>

<p>Where the grantee of land made a declaration of trust, setting out that he held title only as security for a loan advanced to the grantor, .and later in a suit by the grantor’s creditor to declare the deed fraudulent, asked for nothing more than the money advanced by him on the land, he is bound by a decree for this amount, and, there being no fraud, cannot later claim surplus money produced by a sale of the land over the grantor’s debts, on the theory that the grantor made the conveyance in fraud of his creditors, and that equity will not heip him regain it.</p>

<p>1. A corporation, on purchasing a business, agreed to fill the orders of the seller’s customers and to save him harmless from liability to them. On it's failure to fill the orders, the seller recovered judgment requiring the .payment of an amount of money to indemnify him from liability therefor. Subsequently, a customer recovered a judgment against the purchaser on an unfilled order, and the purchaser sued to require the appropriation of enough from the amount recovered by the seller to satisfy such- customer’s judgment, — Held, that such judgment was prima facie evidence against the- seller of the purchaser’s liability, and if the seller had notice of the suit anil an opportunity to defend, it was conclusive against him. ■ •</p> <p>2. A corporation which, on purchasing a business, agreed to fill the seller's orders and to hold him harmless from liability to his customers, and on failing to fill such orders, paid to the seller the amount of a judgment recovered by him as indemnity, may call on the seller to appropriate from the amount thereof sufficient money to satisfy 'a judgment thereafter recovered by a customer against it, and need not wait until it has suffered harm by paying the-debt,-the position of the parties being analogous to that of principal and surety.</p> <p>3. In such case, the purchaser, on recovery of a judgment against him by 'a customer, may call on the seller to appropriate sufficient money from the indemnity judgment to satisfy thei customer’s judgment, although the purchaser’s original liability was unliquidated, the effect of the judgment being to liquidate the liability.</p> <p>4. Though the 'judgment in favor of the seller was considerably less than the total amount owed by him, he riiay be compelled to apply the amount of such judgment in discharge of the purchaser’s liability on the judgment recovered against him by a customer, their liability being identical, and the effect of applying the 'amount of his verdict towards the satisfaction of the customer’s judgment against the purchaser being to release both purchaser and seller to that extent, leaving each still liable for the balance. .</p>

<p>1. The acknowledgment of a lien on property sold under execution by the purchaser and the officer conducting the sale, made it unnecessary for the person holding the lien to bid at the sale to protect his interest.</p> <p>2. A purchaser at an executor’s sale and others, acknowledging the lien of a third person at the sale, were estopped from claiming that the title derived from the sale was not subject to the lien, an instrument in the nature of a chattel mortgage, because it was not recorded as required by statute.</p>

<p>1. In a suit by a wife against her husband from whom she had obtained a.divorce in New York for extreme cruelty — Held, that as to accrued installments of alimony the New York decree was entitled to • full faith and credit, but not as to future installments, since the New York courts have power to annul, alter or modify installments not yet accrued, but have no such power as to past-due installments.</p> <p>2. Since the New York decree established all the facts which, if presented in the New Jersey court, would result in holding the defendant guilty of constructive desertion, the complainant would be allowed, under the twenty-sixth section of the Divorce act, a sum for separate maintenance from the defendant who had contributed nothing to her support.</p>

<p>Where a husband and wife made a deposit in a bank, signing a memorandum that they were to hold “as joint tenants, and not as tenants in common,” and there was an entry in the bank book that they were to “hold as joint tenants and not as tenants in common, the survivor to take,” a contract was created between the two depositors and the bank which gave the survivor the right to1 take.</p>

<p>On issue in cause transferred.</p>

<p>On bill and counter-claim, each party seeking specific performance of a contract for the sale of lands.</p>

<p>A contract of a wife as trustee for a child to convey to a third person land previously held by the husband and wife as tenants by the entirety, and which had been purchased by the wife as such trustee at a sale held to satisfy a judgment against the husband, following the husband’s .abandonment of his wife and child, which contract was executed by the wife as such trustee, pending her divorce suit, contained a provision for the payment of a certain amount as liquidated damages on failure to perform by either of the parties, held an alternative contract, under evidence that the parties so intended in view of the uncertainty as to whether the wife could convey a good title.</p>

<p>1. In a suit to enforce specific performance of a contract to leave certain property by will, witnesses who -were made parties by defendants' counter-claim, and who assigned their interests- to complainant, their sister, are not competent, where it is clear that the assignments were made to evade the statute and without adequate consideration.</p> <p>2. Evidence held to show that the witnesses who so assigned their interest are incompetent.</p> <p>3. It is impossible to render witnesses'incompetent by the subterfuge of making them parties to a suit.</p>

<p>On motion to dismiss bill.</p>

<p>On hateas corpus. On motion for decree on remittitur.</p>

<p>On motion for order discharging guardian.</p>

<p>On order to show cause why decree should not be vacated.</p>

<p>1. To constitute a valid gift inter vivos, the donative intent which must be proven is not a mere general intent or expectation of making a gift, but a specific intent, accompanying the act alleged to constitute delivery, that then and by that act a transfer of ownership by way of gift should be accomplished and completed.</p> <p>2. Where actual delivery of an article is essential to the completion of a valid gift inter vivos, the placing of the article by the donor without the knowledge of the dtonee in a safe deposit box used by and accessible to both, or either, is not legally sufficient to constitute a valid delivery.</p>

<p>A suit to restrain a defendant from constructing a building on land claimed by the complainant, in which the defendant denied the complainant’s ownership thereof, and alleged ownership in himself, and in which the complainant did not allege that the defendant was unable to respond in damages, held not within the jurisdiction of equity, the question involved being a strictly legal question of title to be settled through an appropriate action at law, and the damage, if any, being such that it could be readily assessed by a jury.</p>

<p>1. At common law before issue born, a husband had in his wife’s lands an estate of freehold during their joint lives, and after issue born alive this estate of freehold continued for the husband’s life, and was called an “estate by the curtesy initiate” during his wife’s life, and on her death it became consummate.</p> <p>2, The Married Woman’s act (8 Comp. Stat. p. 8885) was intended to free a married woman from the hardships of the common law, and to give her the sole enjoyment of her separate estate, and should be liberally construed in her favor.</p> <p>3'. This act destroj'ed the estate of tenancy by the curtesy initiate, but if she has not aliened the estate with the consent of her husband, does not defeat curtesy at her death.</p> <p>4. Under this act the interest of a husband in his wife’s lands after birth of issue is an “inchoate right of curtesy,” the right to take possession of her lands for his life in case he survives his wife.</p> <p>5. The inchoate right of curtesy of a husband in his wife’s separate real estate is personal to him, and not subject to the claims of his creditors, and a conveyance of the wife’s separate real estate, in which the husband joins, is free from the claims of the husband's creditors.</p> <p>6. Under the Married Woman’s act and the nineteenth section of the Conveyance act (2 Oomp. Stat. p. 1539) the inchoate right of curtesy of a husband in his wife’s separate real estate does not pass to his creditors under the Bankruptcy act, and where a bankrupt husband joined his wife in a deed of her property, the grantee in said deed acquired a title free from claims of such' creditors as against a remote purchaser’s objection in a suit for specific performance.</p>

<p>1. The Grand Lodge of Independent drder of Odd Fellows which permitted certain lodges to conduct their work in other than the English lariguage, under their constitution and regulations have the power to require such subordinate lodges to conduct their work in the English langiiagelwhen in its judgment it was deemed, advisable for the good of the order so to do.</p> <p>2. Members of a subordinate lodge are not entitled to divide the funds of such subordinate lodge by reason of a breach of contract by the Grand Lodge; such funds being held in trust for charitable purposes.</p> <p>3. Where the Grand Lodge brought’ action against a subordinate lodge, and the members thereof, to recover trust funds which had been diverted by ■haembers of the subordinate lodge, at. a time when the acts and proceedings of the members of the subordinate lodge were not known to the complainant, and were not disclosed until final hearing, when it appeared that the subordinate lodge had gone out of existence, the complainant was entitled to strike out the name of such subordinate lodge as a defendant to the suit. .. . ■</p> <p>' 4. Where members of a subordinate 'lodge intended to abandon and destroy it as an organization by withdrawing from it, dissipating its funds, and attempting to form a new organization, and did all in their power to dissolve it, the individual members are estopped from setting-up that the lodge has not, to all intents - and purposes, ceased to exist in an action against them to recover trust funds diverted from their proper purpose.</p> <p>5. Moneys of a subordinate lodge of Odd Fellows in New Jersey do not belong to the members of such lodge, and where such members dissolved the lodge, a court of equity will not decree that such moneys be distributed among the members, but will be guided by the code and laws of the order in determining to whom the fund belongs, and when such laws require it, the funds will be paid to the Grand Lodge, impressed with a trust to be administered by the Grand Lodge.</p>

<p>On petition for probate of will and codicil thereto.</p>

<p>1. Under the 'Transfer Inheritance Tax act of this state (P. L. 1909 p. 325, as amended, P. L. 191J¡ p. 267) the tax imposed upon the specific devise, or bequest, by the will of a non-resident decedent, of certain kinds of property located within this state, is to be computed under the provisions of section 1 of that act, and not tinder section 12.</p> <p>2. Under the said statute, where a non-resident decedent, by his will, transfers property located in this state, part by specific devise or bequest and part otherwise, the tax under the provision® of the “ratio clause” of section 12 can be computed only upon that portion of the New Jersey pi-operty, not specifically devised or bequeathed. . ■</p> <p>3. Under the said statute, where a non-resident decedent, by his will, transfers property located in this state, part by specific devise, or bequest, and part otherwise, (a) the ratio between the value of decedent’s entire estate, wherever situate, and the value of the New Jersey property not specifically devised or bequeathed, is fixed as the ratio which shall exist between the entire tax to which the decedent’s entire estate would have been subject if he were a resident of New Jersey and the tax which shall in fact be assessed on the transfer of the New Jersey property not specifically devised or bequeathed; (Z>) in determining the value of decedent’s “entire estate” for such purpose, the value of the New Jersey property not specifically devised or bequeathed is not to be deducted or excluded, either in arriving at the “entire estate’’ member 'of the proportion or in arriving at the “entire tax” member of the proportion.</p>

<p>On appeal from a decree of tbe court of chancery advised by Vice-Chancellor Stevenson, whose opinion is reported in &1 N. J. Eq. 168.</p>

It seems to me that an allowance of $1,500 a year, under all the circumstances, would not be very far from right. That ought to be sufficient to provide for the board of the boy and a fairly liberal expenditure for his education. If $10 a week were allowed for the support of the boy it would be $520, and then if $800 were allowed for the education in addition it would be a total of $1,320, which would be only a little less than $1,500.

<p>On appeal from a decree dismissing petition for divorce advised by Vice-Chancellor Fielder. 1</p>

On appeal of Austen H. McGregor, receiver of J. H. Halsey & Smith, Ltd., and Hugh B. Eeed and Eobert D. Eeynolds, partners, counsel to said receiver, from an order advised by Vice-Chancellor Foster fixing the compensation of said counsel.

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

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

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

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

<p>1. Where a wife drove her husband from their home with an iron poker, with which she struck him, at the same time calling him abusive names, after which, on the same day, she had him arrested for assault and battery, which charge was dismissed for failure of proof, and she thereupon left their home, but later returned while he was away at his usual summer employment in the country and took absolute possession of the home and changed the lock on the door so that the husband on his return found himself locked out and unable to use his key and his request for a key to fit the new lock was not heeded and his efforts to effect a reconciliation were repulsed — IIeld, that the husband was entitled to a divorce on the ground of willful, continued and obstinate desertion.</p> <p>2. A divorce will not bo granted on the uncorroborated testimony or admissions of parties to the suit; in the case stib judice there is corroboration by third party witnesses of every element in the proofs necessary to sustain the decree.</p>

“The accident in which defendant was injured occurred on April 3d, 1919, while the defendant, an employe of the Fidelity Trust Company, was riding in an automobile of that company driven by another of its employes.

The complainants allege that ‘on the 16th day of October, 1911, and on the 5th day of March, Í913, and on the 6th day of March, 1913, and continuously thereafter until November 3d, 1913, Michael Regan, one of the defendants heroin, was indebted to the complainants for goods sold and delivered in the sum of $2,854.36, with interest from October 6th, 1911;’ that suit was instituted in the Hudson circuit court, and on November 3d, 1913, judgment was entered in favor of the…

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, and reported in 9\2 N. J. Eq. 343.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Fielder, and reported in 92 N. J. Eq. 6W, sub nomine Liberty Trust Go. v. Haggerty.</p>

Complainant is a trust company doing a banking business, with whom Haggerty kept a checking bank account. He induced a bookkeeper in complainant’s employ to so manipulate the books of the bank that checks drawn on the bank by Haggerty were honored and paid out of an apparent balance to Haggerty’s credit, when in fact he had insufficient funds to meet his checks.

“By the terms of the contract defendant engaged to convey to complainant an insurable title free from encumbrances. At the time the contract was made [January 13th, 1920)] both parties believed that defendant was the sole owner of the land. It has since been, ascertained that at that time defendant owned only a life estate in the land. The land was owned by one Steven W. Ivins, subject to>-the life estate of defendant. Shortly thereafter [January 30th, 1920] Steven AY.

<p>On appeal from an order of the court of chancery advised by Yice-Chancellor Lewis, and reported in 92 N. J. Eq. 100.</p>

I think it clear that the deed of conveyance of August 1st, 1877, from the Camden and Atlantic Land Company to Jacob H. Leedom, and the subsequent deed of conveyance of April 1st, 1890, from Jacob II.

While tire statute makes costs in the circumstances here existing discretionary, that discretion appears to be almost, if not quite, uni formally exercised by a denial of costs when each party has succeeded in part in substantial issues. And tire denial of taxed costs necessarily includes the denial of any allowance as counsel fee. Evócese of Treiúon v. Tolnum (New Jersey Chancery), 7'0 Atl. Rep. SSI; S. C., '7If N. J. Eq. 70$.

During the course of their married life Mrs. Jackson left her husband’s home seven times. She seems to have had no desire to live with her husband as a. wife and gave no reason for leaving except that she preferred to be independent. She refused to stay at home despite the entreaties of petitioner and her children. She stated that she would have nothing further to do with the petitioner. The case seems clearly one of desertion on the part of the defendant.

“On these motions counsel for defendants have measurably overlooked the requirement that the averments of the bill can alone be considered and that all such averments must be accepted as true. “The restrictive covenants here in question provide that private dwellings only shall be built on the lots referred to in the bill, and that no portion of any building shall be erected on the lots within three feet of the rear dividing line of any lot, nor, except porches and steps,…

<p>On appeal from a decree in chancery advised by Advisory' Master Grey.</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. 10.</p>

<p>-On appeal from a decree of the court of chancery advised by Vice-Chancellor Griffin, whose opinion is reported in 98 N. J. Eq. 7-8.</p>

<p>On appeal from a decree of the court, of chancery advised by Vice-Chancellor Backes., and reported in!9B N. J. Eg. 3J+0.</p> <p>Appeal of Walter J. Vreeland et al.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Fielder, and reported in 93 N. J. Eq. 119.</p>

be whether or not tbe duty now exists for the railroad company to apply to the public utility commission for leave to build this crossing — for they cannot do it without leave since the law forbids it — or whether, if the city desires the crossing built, it is the duty of the city to apply for leave to build it. “The theory on which I granted restraint was that there is presently an existing menace to the public that will continue until the public utility commission shall…

I feel that the complainant has not sustained that burden of proof in tliis case, and that there is not sufficient in the testimony to justify me in reforming the instrument as prayed for by the complainants and I will therefore dismiss the bill.”

Appeal of Edward D. Dunn. On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, who filed the following opinion: “This is a suit brought by the commissioner of banking and insurance in the company’s name against the directors of the inVsolvent Roseville TlngLCompapy to subject them to liability because of their negligent conduct of its business.' “The company was organized in July, 1908, It commenced business on December 1st, 1908.

Appeal of Harvey Mott and others. On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported ante p. -2®9.

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported ante p. ®£9.</p>

<p>On final bearing on master’s report and depositions ex parla.</p>

<p>On application for assignment of solicitor to prosecute a suit for nullity of marriage in forma pauperis.</p>

<p>On final hearing on bill, for construction of will.</p>

On final bearing on bill for construction of will. The bill which has been filed herein is for the construction of the will of John Hampton, deceased.

<p>On final hearing on bill to enforce trust.</p>

<p>1. An assignee of a mortgage takes it subject to existing equities between the parties, and it is the duty of the assignee to inquire of the mortgagor as to his liability thereon.</p> <p>2. It is clear that under 8 Comp. Stat. p. 1630 § J/S nothing but money shall be considered as payment of any part of the capital stock of a corporation organized under the Corporation act of New Jersey, except property necessary for its business for which under section 49 (now repealed) capital stock might be issued.</p> <p>3. Where an undertaker and his stock salesman, a preacher, formerly the woman’s pastor, together with a lawyer, took undue advantage of a woman seventy-three years old, and procured from her a mortgage of $10,000 on her farm in exchange for stock of doubtful value in the undertaker’s company, she being at the time in the early stages of senile dementia, equity will not aid in foreclosing the mortgage in behalf of the parties who gained this unfair advantage.</p>

<p>. 1. A railroad company which under its charter had n right to riparian lands occupied by a bridge without compensation therefor, is not required, in changing the location of the bridge, to compensate the state for the talcing of riparian lands for the new bridge, since the riparian lands occupied by the old structure revert to the state for future disposition, so that it loses nothing by the change in location.</p> <p>2. The Railroad act (P. L. 1903 p. 6%5) does not supersede or repeal a special charter authorizing a railroad to erect and maintain bridges over certain rivers in the state. A statute conferring special privileges is not superseded or repealed by a general statute, unless the language thereof clearly expresses such intent.</p> <p>3. Where a railroad company under its charter was authorized to erect and maintain bridges over certain rivers without payment of compensation, this court will not require it, on erecting a new bridge at a different location to compensate a town for land taken for such purpose either because the preliminary steps in condemnation had not been taken, or because the town’s consent even if required under P. L. 1917 p. 319, was not obtained, especially where there is no evidence determinative of the value of such lands.</p> <p>4. An easement cannot be acquired by the public longitudinally along a railroad right of way by user, particularly where such user, except along a public highway, is unlawful, and the company plainly indicates by signs that it is not a public thoroughfare, such use being permissive only, and mere user without objection being insufficient to constitute an invitation.</p> <p>5. A prescriptive right of the public to use a footpath across a railroad bridge cannot be transferred to a new bridge erected at an entirely different location.</p>

<p>1. That instruments of assignment of patents to a corpoi’ation, which subsequently became insolvent, were lost is no reason for disallowing the claim of the assignor, to whom stock was issued for such patents, to share in the distribution of the surplus assets..</p> <p>2. That patents, in consideration of the assignment of which stock in a corporation was issued, were never used by such corporation, is no reason for disallowing the assignor’s claim to share in the distribution of surplus assets on insolvency.</p> <p>3. In the absence of fraud or bad faith, the fact that, by reason of the failure of a corporation to develop patents .assigned to it, the -stockholders’ .expectation of profits were blasted, is no ground for rescission of their resolution adopted and confirmed by the board of directors to issue stock in payment for the patents, and, the rights of creditors not being involved, the fact that the patents were not worth as much as the stock, is no ground for rejecting or reducing the assignor’s claim to share in the distribution of the surplus assets of the corporation after it became insolvent, the transaction being one of bargain and sale between the assignor and the company.</p>

<p>1. The gravamen of the desertion contemplated by the third section of the Divorce act is not the mere physical absence of one of the married couple from the other, but such absence in a prescribed condition of mind — a willful and obstinate desertion.</p> <p>2. A wife was entitled to a decree of divorce on the ground of desertion where the defendant husband refused to provide for her, and took her into his parents’ home, from which place they were ordered out by the parents for failure to pay for their keep, and the wife left, but the husband remained, although the wife did not let the defendant know that she was willing to live with him; there being noi rule requiring a deserted wife to approach her husband to have her marital rights restored, such duty being imposed by law on the husband.</p>

<p>1. A wife who pays premiums on an endowment policy on her husband’s life naming her as beneficiary, but providing for payment to the husband if he survived the endowment period, without any expectation nhat they would be repaid, and with no intention to keep or hold the policy as security, acquires no lien on the fund from the mere payment of the premiums.</p> <p>2. When such payments are made without, any agreement for repayment or a lien, they are in the nature of gifts to the husband from the wife.</p> <p>8. The validity of such gifts are not affected and they cannot be set aside because of the husband’s subsequent willful and obstinate desertion of his wife, for which the wife obtained a divorce.</p>

<p>1. Allowance of counsel fees rests solely on the statutes, except where trust funds in the control of the court are being administered.</p> <p>2. On a voluntary nonsuit by a plaintiff, a court of equity cannot allow counsel fees to a defendant either under the ninety-first section of the Chancery act or under P. L. 1915 p. 185 § 6.</p> <p>3. Notwithstanding the general rule that a complainant may dismiss at pleasure before trial on payment of costs, a petitioner for habeas eorpns to determine the right to custody of infant children, who are the wards of the court, cannot dismiss 1ns petition and thereby prevent the court from judicially settling the rights to custody.</p> <p>4. Where a father had invoked the court’s jurisdiction to determine the right to the custody of minor children by petition for habeas corpas, to which the mother had filed an answer asserting her right to the children and, praying for their custody, no cross-petition by the wife was necessary to prevent the husband from voluntarily dismissing his petition.</p> <p>o. Where a petitioner for habeas corpus to recover custody of his children, who were within this state, was a non-resident, so that he could not be subjected to the jurisdiction of this court in a proceeding to determine the custody of the children, and no decree determining such custody would be conclusive on him outside of the jurisdiction, he will not be permitted, after having submitted to the jurisdiction, to dismiss his petition, and thereby prevent the court, from rendering a decree which will be res adjudicata everywhere.</p> <p>O. As a general principle a complainant will not be permitted to dismiss his bill after the defendant has gained an advantage in the progress of the cause which would be prejudiced by a dismissal.</p>

<p>1. Book accounts, present and after acquired, may be mortgaged.</p> <p>2. A corporation ’ mortgage on all its assets, present and after acquired, includes book accounts.</p> <p>3. A receiver of an insolvent public utilities corporation, operating its plant under the direction of the court, must account to a mortgagee for wear and tear, on the theory of waste, out of the profits of his operations.</p> <p>4. In such a suit for foreclosure, the failure of the trustee to apply for a receiver in foreclosure, whereby the trustee would have be'en entitled to all the earnings of the corporation, held not to deprive the trustee of Ms equity in the funds earned at the expense of the mortgage security.</p>

<p>1. A bequest of a designated number of shares of stock in a certain corporation is not specific, "even though the testator may at the time own the exact number of shares given, so that such bequests do not pass to the legatees at the death of the testator, and the dividends paid fall into the residue.</p> <p>2. Evidence aliunde is admissible in aid of the intention expressed in the will, but it cannot be admitted to supply an intention which is nowhere disclosed in the will itself.</p> <p>3. The facts that the testator at the time of executing his will had his corporate stock divided into numerous certificates, any one of which of a similar denomination would satisfy the legacies given in the will, and that he selected some of the certificates, and sent them to legatees during his lifetime in satisfaction of bequests to them, do not establish that the legacies were specific and not general, even if such circumstances could be considered to determine that question.</p>

<p>On final hearing.</p>

<p>On final hearing.</p>

<p>1. In the administration of an estate by an ancillary administrator, involving the passing of a report and account, and the determination of the bona tides of certain claims, and the ending of long litigation, such matters afford special reasons to the court of chancery for assuming jurisdiction which would ordinarily be exercised by the orphans court.</p> <p>2. A decision by the court of errors and appeals on a bill by an ancillary administrator to impress a trust upon assets pledged to a New Jersey corporation is conclusive on claimants whose claims were there considered.</p> <p>3. This court may, on petition by an ancillary administrator for the passing of his account, sustain exceptions to all claims but one that was in litigation, and as to which an appeal was pending, and reserve decision as to this one, in order to expedite settlement by permitting a prompt appeal from such decision.</p> <p>4.. Where, after such petition was filed, a creditor filed a claim and. was allowed to file exceptions, but on the hearing it appeared that such creditor was a corporation of another state, and the claim was not reported by the administrator, and no prayer is in his petition for discharge in reference thereto, the court, on the consideration of such exceptions, need not pass upon such claim.</p>

On bill to have it declared that lands .standing' in the name of defendants are Held by them as trustees for complainants, and for a decree that the defendants should convey to the complainants, &c.

<p>1. A clause in a lease providing that the lessee should deposit with the lessor “before this lease becomes operative” $1,500 to secure the surrender of the premises at the expiration of the term in a state and condition as agreed in the lease, was intended to secure a deposit before the term began, and should be construed as meaning that the deposit was to be made before the first day of the term, and not to postpone the operation of the lease and an option to purchase until the deposit was made.</p> <p>2. Failure by the lessor to secure the return of the premises in good condition from the lessee according to the lease, in view of the acceptance of rent by the lessor, does not avoid the lease and option to purchase contained therein, and is no defence in a suit for specific performance of the option to purchase by the lessee.</p>

<p>1. A testatrix being possessed on the date of her will of ten P. Water Company bonds of the par value of $1,000 each, bequeathed ten M. water bonds of the par value of $1.000 each, without using language indicating an intention to pass bonds which she then owned, and when, in fact, she never owned any II. water bonds — Held, the legacy is general and not specific.</p> <p>2. Where the testatrix divides the residue into four equal portions, dividing her will into paragraphs, and directs that one portion be divided between the several persons mentioned in each paragraph in fixed proportions — Weld, the beneficiaries named take as individuals and not as a class, even though the persons in each paragraph constitute separate branches of testatrix’s relatives.</p> <p>3. Whore a legacy or devise is given by the residuary clause and lapses, it does not sink into the residue, but passes to the heir or next of kin, unless a contrary intention appears on the face of the will. .</p> <p>4. Where, in the,third paragraph, testatrix directed that “all the rest, residue and remainder of my estate, real and personal, wheresoever situate, thus including lapsed legacies, I wish divided into four equal portions,” and, in the fourth paragraph, she gives one portion to several persons — to some one-tweifth and to other's thx'ee-twelfths — and a legatee of three-twelfths died in testatrix’s lifetime, with the resultant lapse — • Held, that as it plainly appears from the will that testatrix did ixot intend to die intestate as to any part of her property, the words “thus including lapsed legacies” takes the case oxxt of the general x*ule. In such situation tlxe legacy, in strictness, does not lapse or sink into the residue, but, more properly speaking, continues therein.</p> <p>5. Where testatrix, in the residuary clause, directed that the residue should be divided into four equal portions, giving to several persons in one paragraph (fourth) one-twelfth and three-twelfths, respectively', and in another paragraph (fifth) another portion to several persons in one-fourths, and, in still .another paragraph (sixth), to her executors in trust for life for two persons each one portion (thus the unit for division is forty-eighths), and one of the legatees (H. B.) in the fourth paragraph dies in the lifetime of the testatrix, her three forty-eighths passes to the other residuary legatees in proportion to their several legacies, viz., by cutting down the number of divisible units from forty-eight to forty-five— thus, those receiving one-half of one-fourth (or one forty-eighth) will receive one forty-fifth of the whole residue.</p> <p>G. The remainder mentioned in the sixth paragraph, devised to the parties in the fourth and fifth paragraphs, are vested and not contingent ; in that on the death of the life tenants the remaindermen are entitled to the enjoyment without any collateral contingency concurring.</p> <p>7. The remainder in the fifth paragraph, where testatrix devised to her executor in trust to pay the income to M. F. B. during her life, “and at her death, or if she die before me, then at my death to pay the principal to her children, if any, or if she die leaving no issue, then I direct my executor to pay the remaining one-fourth part to J. C. S., A. B. S. and H. S., share and share alike, and their shares, if they then be dead, shall go to their children or issue surviving, or, if none, then to the survivors or children of those dying leaving issue,” is a contingent remainder.</p> <p>8. Testatrix, after disposing of her' entire estate, in the last paragraph of her will appointed an executor “hereby giving him full power to make sale of any real estate whereof I may die seized, at public or private sale, and to make sale of any personal property, and upon such terms and at such times as he may think best.” — Held, such language does not operate as an equitable conversion at testatrix’s death but only from the date of the actual sale.</p> <p>9. Where testatrix, in hei residuary clause, used the words “thus including lapsed legacies,” and by said- clause disposed of a blended mass of real and personal property, and it plainly appearing that she did not intend to die intestate, and it being determined that the language “lapsed legacies” refers to the personal property included in the legacy of residue which lapsed as well as other lapsed legacies, and it plainly appearing that the testatrix did not intend to differentiate between real and personal property in its disposition — Held, thac the word “legacy” included all-lapsed legacies and devises.</p>

<p>1. Where a mortgage entitled the mortgagor to a release of a portion of the property on payment of a, part of the debt secured thereby, an agreement made after the maturity of the mortgage, in consideration of the payment at that time of a part of the mortgage debt, extending the time for payment of the balance without any reference to the provision for giving releases, did not entitle the mortgagor to a release of part of the mortgaged jiremises because of that payment, as his right to demand releases had expired, and he had only an equity of redemption in the property.</p> <p>2. Where a bill to foreclose a mortgage contained a paragraph admitting that the mortgagor was entitled to a partial release, but the evidence in "the case, even considering such admission, did not show that the mortgagees, in extending the time for payment after maturity, intended to extend the provision for releases, they will not be held to have lost their rights because of a mere slip in pleading.</p>

<p>1. A testamentary trust for the establishing of a lodging-house for destitute women is a valid charitable trust.</p> <p>2. A will providing that, on failure of a trust for the establishment of a lodging-house for destitute women, the trust fund should be used to establish and maintain a hospital for sick animals created a charitable 'rust.</p> <p>3. A gift in trust for the establishment of a lodging-house for destitute women, or, if that proved a failure, for a hospital for sick animals —Held, to lapse, and the property to pass to the heirs-at-law and the next of kin because the property was insufficient for either purpose, either by using the testator’s real estate or selling it and investing the proceeds, and the trust could not be administered by contracting with some existing association, as the will, by naming the visitors and matron or manager, and by requiring Protestant management, and by forbidding any payment to any established charity or any association with any humane society, precluded such contractual method of 'administering the trust.</p>

<p>1. Where land was purchased and title taken jointly by a husband and wife, on partition after divorce, the husband is not entitled to contribution for payments made, as payments by the husband on purchase of land in his wife’s name, in the absence of proof of a contrary intent, are presumed to be gifts.</p> <p>2. Such presumption may be rebutted by proof that they were made with the intention or agreement that they should not be gifts.</p>

<p>On final hearing.</p>

<p>1. Under the Martin act (// Comp. £Ha1. p. 5212 et seq.) notice to redeem served on the owner was binding on a mortgagee who later obtained a deed in foreclosure.</p> <p>2. The right of possession of a purchaser at a tax sale November 1st, 1897, carried with it a right of entry which accrued more than twenty years before the suit, and the failure to exercise such right against the complainant's possession since May, 1898, was barred under 3 Comp. Stat. p. 3169.</p> <p>3. In a suit to quiet title where no evidence was offered by the purchaser at a tax sale explaining or accounting for the delay in making entry for twenty years, the presumption of payment is conclusive.</p>

<p>1. A deed direct from a husband to his wife passes an equitable estate in fee, and the wife is entitled to have the legal title from her. husband’s heirs.</p> <p>2. To constitute delivery of a deed it is not necessary that it be actually handed over to the grantee, but it must satisfactorily appear, circumstantially, at least, if not from acts and express words, or both, that the grantor intended to part with the deed and pass title.</p> <p>3. That an officer in whose presence a grantor executed a deed certified that the grantor acknowledged that he had signed, sealed and delivered it, is not conclusive evidence of delivery but may be rebutted by evidence showing that there was no actual delivery.</p> <p>4. A deed in the nature of a testamentary devise is void, as contravening the statute, of wills.</p> <p>Í5. A grantor who delivers his executed deed to a third person with instructions to record it after his death, may thus part with all control over it and make it the property of the grantee, but if he merely changes the place of deposit from his hand or pocket to a box to which he alone has the right of access, he does not thereby part with possession or control of the deed, especially when he instructs the grantee to record it after his death if he did not do so before.</p> <p>6. In a widow’s suit to recover a half interest in fee alleged to have been conveyed to the plaintiff by a deed executed by the decedent, evidence held to show" that the deed was not delivered nor intended to take effect in the grantor's lifetime.</p>

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

<p>1. Where real property is conveyed to J. W. P. and E. P., liis wife, and B. W. P. and A. P., his wife, without words defining or limiting the estate of the grantees, J. W. P. and his wife are seized as tenants by the entirety of an undivided one-half thereof which they hold as tenants in common with B. W. P. and his wife, who are seized as tenants by the entirety of the other undivided one-half.</p> <p>2. When title to real property is held, as above stated, either wife may maintain a suit against her husband and the other husband and wife, for partition of the shares held in common and in case the property is incapable of actual partition, a sale will be decreed and the proceeds paid into court and divided into two shares. Each share will be invested for the benefit of the husband and wife entitled thereto, during their joint lives and upon the death of one of them, the principal of such share will be paid to the survivor.</p> <p>3. As between husband and’ wife who are seized of real property as tenants by the entirety there can be no partition.</p>

<p>The payment to the comptroller of the treasury of a five per cent, tax based upon the full value of the shares of stock in a New Jersey corporation, owned by a non-resident decedent to secure a waiver for the transfer of such shares in advance of the levying by the comptroller of the tax to which the estate is liable, is a payment of the tax, pro tanto if the assessment ultimately made is greater than the amount so paid and entitling the executor to the surplus if such advance payment is greater than the assessment when made; and such payment — that is, payment to secure waiver, if made within six months from the death of decedent, entitles the executor to the five per cent, discount on the tax allowed by the Transfer Inheritance Tax act (P. L. 1909 cli. 228 § 5, as amended by P. L. 1918 oh. 283), and prevents the running of interest on the tax pro tanto or totally, as the amount of the tax may be less or greater than the amount of the advance payment, if the tax is levied a year or more after the death of decedent; and it seems that interest would not run for another reason, namely,, because the time of the assessment and levy were not attributable in anywise to the executors.</p>

November 4th, 1918, the surrogate of Camden county ad-1 mitted to probate the last will and testament of Frederick G. Frank and issued letters of administration mm lestcmmio mnexo to Anna C. Frank, the mother of the deceased.

<p>1. Under a will bequeathing the residue of a testator’s personal estate to his wife, and after her death or marriage “to such persons as would by law inherit the same,” the persons referred to are those who would take under the statute of distributions at the marriage or death of the wife.</p> <p>2. A limitation over to the “heirs-at-law” or ‘.‘next of kin” of a testator after a life estate refers to persons who are heirs-at-law or next of kin at the time of the testator’s decease, even though the life tenant should be one of them, or should be the sole person to take, the natural presumption to the contrary being insufficient to control the legal and fixed meaning of the technical words as necessarily referring to the testator’s death, in the absence of provisions in the will fixing some other time.</p>

<p>On appeal from the Passaic orphans court.</p>

<p>On motion to stay proceedings.</p>

<p>1. Unless a lease contains a provision restraining the lessee from underletting the demised premises or assigning the lease, the lessee is entitled to do either at his own pleasure, notwithstanding the landlord’s objection.</p> <p>2. Under a provision in a lease that “this agreement of lease shall bind and apply to the heirs * * * and assigns of the respective parties,” an assignee of a lease is empowered to make any alterations or improvements that the lessee was arithorized to make.</p>

<p>On appeal from a decree in chancery advised by Vice-Chancellor Griffin, whose opinion is reported in 98 N. J. Eq. 76.</p>

<p>On appeal from a decree in chancery advised by Vice-Chancellor Backes, and reported in &£ N. J: Fq. 515.</p>

<p>1. In suits to restrain picketing during strikes, whether or not intimidation exists, is a question of fact, and the presence of twenty-five or thirty pickets may constitute intimidation when a single picket would not.</p> <p>2. The law recognizes the right of members of trade unions to combine in order that they may deal with tlicir employers on terms approaching equality, but employes must be left unmolested in order that their conduct may be controlled by their reason.</p> <p>3. In a suit to restrain a trade union and a district business agent from picketing during a strike, the agent who took part in forming, fomenting or aiding to make -an effective organization for illegal purposes was not relieved from liability by letting others do the active intervention.</p> <p>4. Picketing by a great number of pickets during a strike, held subject to injunction on the ground of intimidation of those who desired to become employes, although no acts of violence were committed.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Buchanan, whose opinion is reported in 92 N. J. Eq. 569.</p>

<p>1. The proceeds of the sale of real estate made by decree of the court of chancery in a partition suit, retain the character of real estate for the purposes of distribution.</p> <p>2. To entitle a wife to dower, the husband must have been seized, either in fact or in law, of an estate of inheritance in the land at some time during the coverture. If the husband have only a reversion or remainder after a freehold estate in another, the seizin is, properly speaking, in that other, and not in him, and, consequently, the wife is not entitled to dower, unless by the death of the intermediate freeholder, or a surrender of his estate to the husband, the inheritance becomes entire in the husband during coverture. And if the husband conveys away his reversion or remainder, either personally or by operation of law, during the continuance of the particular estate for life, his wife thereby loses all claim to dower therein.</p>

<p>On a petition for divorce brought by a wife on the ground of constructive desertion, the evidence considered and the facts found, held to show no constructive desertion by the husband, but that the separation was voluntary on the part of the wife.</p>

<p>1. Where a lease for a term of years gives an option to the lessees to purchase the property in the event of the death of the lessor during the term, the lessees have a reasonable time within which to exercise the option of purchase. Any time before the expiration of the lease is a reasonable time within which to exercise the option.</p> <p>2. Where in a lease the recital of the parties is so worded as to make it ambiguous as to whether the owner of the premises or her daughter and agent was intended to be lessor, it will be presumed that the lease was intended to be made between the parties capable of making it, and the lease will be under such circumstances so construed as to make the owner the lessor.</p>

On appeals from decrees of the court of chancery advised bir Vice-Chancellor Griffin, whose opinions are reported in 92 N. J. Eq. MS, 372.

seek the rescission of a contract for the purchase of stock, the repayment of $2,500 paid to defendant, under this contract, by the decedent in February, 1920, and they also' ask to have defendant enjoined from prosecuting any suit to recover the balance of $3,500 alleged to be due on the price of the shares of stock purchased under this contract. “The grounds on which relief is sought are — that officers of defendant bjr misrepresentations relating to its ownership of…

state, upon which a brick dwelling, tenant-houses and several bams are erected, the whole being known ag the ‘Pequest Stud Farm,’ which complainant had operated for several years for breeding horses. Defendant was seeking to purchase a stud farm and complainant opened negotiations with him for the sale of the land and premises in question.

“In Jersey City v. Lembech, SI N. J. Eq. 266, our court of last resort has definitely determined that the court of chancery cannot set aside or control the proceedings of a municipal body in matters of taxation on the mere ground that such proceedings were irregular or unlawful; that if the acts of such bodies are not extra vires they do not fall under equitable control except from the presence of special equities. “In Goodwin v. Millville, 76 N. J. Eq. >270, the bill…

Van Arsdale, covering several tracts of land situate in Newark and East Orange.

“In 1910 Moe was nineteen years of age, -and, as I recall it, Louis was not quite twenty-one. They were engaged in the plastering business. Moe says that he did the plastering work, and Louis was the master, without a Union card, while he, Moe, had one; that Louis, in order to work, was required to have a Union card. This statement is somewhat negatived from the fact that Louis, in 1914, did work as a journeyman, and had permits, which cost $5 apiece to work for a period.

• “On the hearing it was established that in April, 1915, the defendant Hyppolite A. DeRaismes called on complainants and informed them that the}- were the owners of, or entitled to some interest in, a small tract of meadow land, of little value, of which their ancestor, Jonathan David Ketcham, had died seized in 1865; that they then signed a paper, which proved to be the agreement and power of attorney hereafter referred to; that they did not know that this paper was made…

<p>On appeal from a decree of the court of chancery, advised'by Vice-Chancellor Griffin, whose opinion is reported in ¡98 N. J. Eg. 327. . . ■ ■'</p>

<p>On-appeal from a decree of the court of chancery advised by Vice-Chancellor Foster, whose opinion is reported in 9® N. J. Eq. 877.</p>

<p>On appeal from chancery advised by Vice-Chancellor Backes, whose opinion is reported in 92 N. J. Eq. 8f\6.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Qriffin, whose opinion is reported in 98 N. J. Bq. 88.</p>

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

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

<p>On appeal from the court of chancery advised by Vice-Chancellor Stevens, and reported in 90 N. J. Eq. 342.</p>

<p>On appeal from, a decree advised by Vice-Chancellor. Backes, whose opinion, is reported in 93 N. J. Eq. 70.</p>

<p>On appeal from a decree in chancery advised by Vice-Chancellor Lewis.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Fielder, whose opinion is reported in 93 N. J. Eq. 121.</p>

<p>1. The court will not grant leave to plead disfavored defences after time for answering has expired, nor grant leave to amend answers already filed so as to raise such defences.</p> <p>2. A motion to strike out a bill of complaint on the ground that it discloses no cause of action is substituted by rule 07 for a demurrer under the former practice; and like a demurrer admits every allegation in the bill which is well .pleaded.</p> <p>3. When a defendant is charged with fraud it is the peculiar jurisdiction of chancery to compel him to disclose the facts alleged as a fraud and all the attending circumstances, so that the court can determine whether or not a fraud has been perpetrated; and when the suit is for the recovery of property tortiously taken by defendant the bill lies because of the fraud involved, especially where defendant occupies a fiduciary position.</p> <p>4. While equity will not compel a discovery iu aid of a criminal prosecution, or of a penal action, or of a suit in its nature partaking of such character, the rule does not apply when the bill is for an, accounting for moneys alleged to have been misappropriated by defendant while acting as the agent of complainant, for in such a case the discovery sought is in aid of a purely civil suit.</p> <p>5. Where a person occupying a fiduciary position converts and embezzles money belonging to his employer he will be held to account in equity, notwithstanding his liability to prosecution for crime; but he cannot be compelled to discover any facts tending to criminate himself; yet this does npt prevent the trial of the cause under the rules of evidence in civil actions, one of which is that a witness is not bound to answer any question which would, or would tend to, criminate him; the privilege, however, must be claimed by the witness himself, whether he be a party to the cause. or not, and neither the coui't nor counsel can object for him.</p> <p>O. While it may Ibe that in cases of crime, in which the facts are known to the injured party, a civil suit founded thereon may not be brought on for trial before the injured party sets the criminal law in motion to redress the public wrong, and that proceeding has been terminated ; yet, where the injured party is without direct and positive evidence, but only reasonable and probable cause to believe that fraud has been committed to his injury, he may proceed in chancery for discovery of facts which would establish the fraud, and the defendant will be amply protected by refusal to answer any interrogatory which would, or would tend to, criminate him.</p> <p>7. Facts stated in a pleading which are not material to a decision oí the issue are impertinent, and, if reproachful, are scandalous.</p> <p>8. Averments in an answer that the allegations in the bill are wholly false and fabricated by political enemies of defendant; that accountants employed lo examine his books as ¡borough clerk -were partisans of the dominant political faction of the borough commissioners, and who failed to discover false charges, &c., to the dismay and discomfort of the adherents of those commissioners; that the bill.is not filed in good faith, but for the purpose of maintaining a colorable prosecution pending which campaign utterances by the dominant political faction may be apparently sustained, &c., are scandalous, and will be struck out.</p> <p>9. It is settled that when, a suitor is entitled to relief in respect to the matter concerning which he sues, his motives are immaterial; and where a corporation sues the motives of its officers in bringing the suit cannot be imputed to it, especially as their 'motives would not operate to defeat the suit if it were theirs individually.</p> <p>10. A bill for discovery alone cannot be sustained where it prays for answer without oath, but where a bill for relief prays for incidental discovery, the complainant is entitled to discovery without oath as prayed.</p> <p>11. When a defendant submits to answer he must answer fully; and if lie does not the complainant may have an order that he answer further.</p>

<p>1. The mother oí an illegitimate minor child is its natural guardian and is bound to maintain it; but this court has no jurisdiction to compel her to do so, and the extent of her duty in that regard arises only when she aslcs for an allowance for that purpose out of its estate.</p> <p>2. As a widow is not, as a general rule, bound to support her minor child out of her own property if the infant has means of its own, and, as she is entitled to indemnity out of its estate for money expended by her for its maintenance and education within proper limits, so the mother of an illegitimate child, who is ordinarily in the same situation as though she were a widow, is entitled to the same sort of indemnity.</p> <p>3. When an allowance for past support and education of an infant is prayed for on behalf of a parent or guardian, the court will make such an allowance only as it would have made if the same had been asked for in advance; and in fixing such allowance the court will not do more than indemnify for actual disbursements, and is bound to set up the statute of limitations in favor of an infant against a demand of a mother, even though the minor does not desire that bar to be interposed, unless the case discloses some circumstance which renders such defence inequitable.</p> <p>4. The guardian of an infant whose parents have little income may use the income of the estate of the child for its education along lines for which it shows special aptitude.</p> <p>5. The question of the expenditure of the personal estate of an infant is generally left to the judgment of his guardian in the first instance, subject to approval on the settlement of his accounts; and his judgment on the question of the amount of such expenditure is not subject to judicial revision so long as the guardian exercises a fair and honest discretion.</p> <p>6. It is to protect minors that guardians are appointed for them to conserve their estates, and to see to it that their property is not wasted; and this, because of the real or supposed incapacity of infants’ to make judicious contracts; and a contract which the law would avoid, if made by an infant, the court will not allow a 'guardian to make for him.</p> <p>7. When so ordered and directed by the chancellor, a special guardian of an infant may lawfully exercise the powers of a general guardian with reference to the proceeds of the sale of the infant’s lands which come to his hands as such special guardian under the act relative to the sale of infants’ lands. Gomp. Stat. p. 2804.</p>

<p>On motion for taxation, of fees for drawing and serving notices.</p>

On application for decree of nullity of marriage for impotence, on master’s report and proceedings for inspection of defendant.

<p>1. The provision in the Chancery act (Comp. Stat. p. Jill § 8) that no subpcena for appearance shall issue until after bill filed is merely directory and not mandatory; and unless defendant comes in promptly and moves to set aside the process for such technical irregularity, the cause may proceed regularly, if the bill be filed before the return day named in the subpoena.</p> <p>2. Crotvell v. Botsford, 16 N. J. Eq. Ji58, followed and applied.</p>

On order to show cause why George E. Jenkinson, Jr., a solicitor in chancery, should not be adjudged in contempt of the power, authority and dignity of the court of chancery of New Jersey, and why he should not be punished therefor.

<p>On application for an injunction.</p>

<p>On final hearing on masters report and depositions ex pwrte.</p>

<p>1. A bill for partition on behalf of an infant by next friend may not be filed unless it alleges that partition or sale of the premises would operate for the benefit of the infant.</p> <p>2. By the ancient practice both at law and in equity, partition was made, however prejudicial to' the interest of the parties; to remedy which our statute authorizes a sale in lieu of partition.</p> <p>3. The power to direct partition of property by sale and division of the proceeds is statutory, and the circumstances under which it can be exercised depend upon the statute; and it is incumbent on the person seeking partition by sale to show cause therefor justifying it under the statute.</p> <p>4. If a sale in partition be consented to by all parties, they being sui juris (and only such parties can give efficacious consent), that mode of disposition could be attained without decree, as the parties themselves could join in the execution of a proper deed; what the parties can do for themselves the court will not do for them.</p>

<p>1. The acceptance of interest by the mortgagee after the mortgagor-had defaulted in its agreement to replace certain machinery covered by the mortgage, and with full knowledge of such default, ^does not constitute a waiver of the default.</p> <p>2. Under a mortgage requiring the mortgagor company in case it sold any obsolete machinery to replace it with new equipment, the substitution for obselete machinery used in the generation of electricity of other machinery which could be used for water purposes only was a 'breach of the condition which gave the mortgagee the right to foreclose after notice.</p> <p>3. The mere lapse of time in bringing a suit to foreclose a mortgage after default, in the absence of any proof to work an estoppel, does not bar the right to foreclose.</p>

<p>1. The right of a devisee to exoneration by payment of a debt secured by mortgage upon the land from the personal assets of the estate exists in full force except in so far as it has been abolished by statute.</p> <p>2. 3 Oomp. Stat. p. 3J¡21 § 2, does not abolish the substantial right of a devisee of land to exoneration by payment of the bond secured 'by mortgage on the land devised to him from the personal property of the testator.</p> <p>3. While a statute relating to remedy and procedure is to be liberally construed with a view to the effective administration of justice, it must be strictly construed in so far as it changes or diminishes fundamental rights, both as to the cases embraced in its terms and the methods to be pursued.</p> <p>4. The legislature makes public policy, not the courts.</p>

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

<p>1. Persons who are not parties or privies to a contract cannot be made parties defendant in a suit for specific performance thereof.</p> <p>2. The court of chancery, in a suit for specific performance of a contract io convey land, has no jurisdiction to inquire into the alleged invalidity of a tax title, on the determination of which issue the quantum of the defendants’ estate depends.</p>

<p>1. Where a son purchased and paid for property, and caused the title thereto to be placed in his mother’s name, the law implies that the grantee took title in trust for her son.</p> <p>2. In a wife’s suit against her husband and his mother to establish her dower interest in lands, the complainant must show that the mother holds title for the use of her son, or that the son, having purchased and paid for the property, fraudulently, for the purpose of depriving his wife of her dower therein, caused the lands to be conveyed to his mother.</p>

<p>1. Where a testator established certain trusts, the income to be paid to the 'beneficiaries, and upon the death of any of them the trustee was directed to pay over the principal to such person, as the deceased beneficiary should appoint, the will of a beneficiary, directing payment of her debts, &e., and giving all the rest of her property to her sister and brother, share and share alike, or to the survivor of them, for their own proper use, no reference being made to the trust estate, was not an exercise of the power of appointment.</p> <p>2. In the absence of proof establishing a different intention a general devise or bequest by the donee of a power in which the testator refers to the property devised or bequeathed as his property, will not be regarded as an exercise of a power of appointment.</p>

<p>1. Where an option -described land north of a certain brook, a deed made in pursuance thereof, and not conveying to the brook, will 'be reformed so as to convey the land described in the option.</p> <p>2. Where an option called for the convejmnee of land north of a certain brook, and the conveyance did not convey the land up to the brook, even if waivers were established by the purchasers taking part in the survey, acceptance of the conveyance under protest prevents their being estopped from seeking reformation of the conveyance.</p> <p>3. Such option, in the absence of express words of exclusion, calls for a conveyance to the centre line of the brook.</p> <p>4. A conveyance of land bounded on a stream above tidewater, carries the title of the grantee to the centre of the stream, if the grantor’s title extends so far.</p>

<p>On motion to strike out an answer as sham and also frivolous.</p>

<p>1. Where an executor delayed over four years in filing his inventory and final account, he is liable for depreciation in the value of bonds, notwithstanding- the act (2 Comp. Stat. p. 2211 § SJ/), this statute not applying to cases of negligent delay in settlement.</p> <p>2. Where an executor withdrew cash of an estate from a bank in which it earned four per cent, interest, and deposited it in his own bank at two per cent, interest, he is liable for the interest it would have earned if it had been left in the first bank.</p> <p>3. Where there was no testimony before the orphans court to warrant a higher estimate than $100 for the value of furniture belonging to an estate, overruling an exception to the executor’s final account putting its value at $800 was proper.</p>

<p>1. Where a husband and wife own property as tenants by the entirftty the wife is entitled to an accounting of the rents and profits collected by the husband from the common property, but the husband is not required to account for the rental value of the portion of the premises which he occupies as their home when the wife has deserted him without just cause, and has refused to return at the solicitation of the husband.</p> <p>2. Grounds of appeal that are not argued before the appellate court will be considered to have been abandoned.</p>

<p>1. Where a lease contained a clause requiring a tenant to make a deposit, and an option was granted therein to a tenant to purchase which provided that upon the exercise of the option the deposit should be applied upon the purchase price, the landlord, by letting the tenant into possession without requiring the deposit to be made, and receiving rent from the tenant in accordance with the terms of the lease, cannot l'efuse to convey in pursuance of an exercise by the tenant of the option to purchase on the ground that the contract was broken by failure to make the deposit.</p> <p>2. .Failure to perform a particular provision of a contract does not render the contract void as a whole, but merely voidable at the option of the parts' for whose benefit the condition wras inserted, and if such party does not manifest his intention to annul the contract by some act done or notice given within, a reasonable time after the failure occurs, he is presumed to have elected to consider the contract in force.</p>

<p>1. Neither the purchasei1- at a judicial sale, nor- his assignee, can be arbitrarily deprived, by the officer who conducts such sale, of a fixed and definite legal right which the law vests in the former as such purchaser.</p> <p>2. -The act of April 8th, 1919 (P. L. 1919 p. 118), providing for the apportionment of current annual taxes between the seller and purchaser of real estate, does not apply to judicial sales.</p>

<p>1. Where both grantor and grantee to a deed acted with intent to defraud the grantor’s creditors, the deed is void.</p> <p>2. Proof that a conveyance was made to protect the property from the grantor’s creditors until a more favorable time for selling it, and that the plan was proposed by the' grantee who paid the grantor a sum of money to give apparent validity to the transaction, which sum was subsequently repaid to him to discharge taxes levied upon the land after the conveyance, shows that' the grantee participated in the fraudulent intent, and, therefore, the deed is void.</p> <p>8. The fact that the conveyance was intended only to postpone the sale until it could be made to better advantage, does not make the deed valid.</p> <p>4. A fraudulent conveyance is void only as against creditors or others who may have lawful actions or demands, and is valid as between the parties.</p> <p>O. Equity will not-lend its aid to consummate a fraud, however hard the case may be, and will leave both parties to a fraudulent conveyance where it finds them,</p> <p>C. A subsequent grantee of property, previously conveyed to another in fraud of creditors, acquires no greater rights than his grantor had, and equity will give him no relief which it would deny to the grantor because of bis participation in the fraud.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis, whose opinion is reported in 111 Ail. Rep. M21, and 98 N. J. Eq. 36.</p>

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

<p>When a purchaser at a sale under the “Martin act” fails to serve the required notice on all of the representatives of outstanding interests, but 'by mutual arrangement releases his rights as purchaser to interested parties not served with notice to redeem who thereafter hold their interest free from any claim by virtue of the tax sale, such parties have no standing to redeem the property generally from the sale.</p>

<p>1. Where a mortgage provided that on payment of not less than a stated amount the land should be released pro rata, and, after maturity, on the owners paying more than the stated amount, the mortgage was extended, nothing being mentioned in, the extension agreement concerning any release, the owner of the land was not entitled to a pro rata release.</p> <p>2. The maxim that one seeking equity ’must do equity applies where a mortgagor’s successor paid part of the debt after maturity, and claimed a partial redemption under a pro rata release provision of the moi'tgage, and his attitude in seeking to lessen the value of the security indicated that he did not intend to pay the residue.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Buchanan, ivhose opinion is reported in 92 N. J-. Eg. 860.</p>

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

“I will give counsel my views. The thing litigated and the question to be decided is whether the executed real estate deal between the parties should be set aside for fraud. “Seery sold- Iris residence in Montclair to Throop for $14,000, and took a second mortgage for $2,500 in part payment, payable $500 in three months and the balance in a year. The mortgage bears date September 30th, 1920.

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Baekes, whose opinion is printed in 93 N. J. Eq. ms.</p>

On appeal of Nellie L. M. Woodbury. On appeal from a decree in the court of chancery advised by Vice-Chancellor Fielder, who delivered the following opinion orally: “The title to the premises in question was held by the Montclair Savings Bank, it having been acquired under foreclosure of a mortgage covering, property of which Mrs. Woodbury was then the owner.

I am satisfied from the evidence in this case that (there was an arrangement followed by an agreement between the directors of the company, that the company should purchase from Mr. Cigol the letters-patent issued to him and his rights under applications for letters-patent then pending, and that he agreed to sell to the company those patents and those rights under the applications.

<p>On appeal from 'a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 92 N. J. Eq. lft 8.</p>

<p>On appeal from a decree of the prerogative court advised by Vice-Chancellor Griffin, whose opinion is.reported in 92 N. J. Eq. S97.</p>

<p>On appeal from a decree of the prerogative court advised by Vice-Ordinary Griffin, whose opinion is reported in 92 N. J. Eq.' 61S.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Griffin, whose opinion is reported in 98 N. J. Eq. 321.</p>

“The premises were leased to complainant by indenture dated February 1st, 1917, for the term of five years, from and after May 1st, 1917, which was duly executed by both Charlotte Stella Graham and Nelson Graham, her husband, and acknowledged by both, and also by Charlotte Stella Graham, separate and apart from her husband, before Thomas W. Randall, a master in chancery of New Jersey.. It was also sign'ed by Joel E. Crandall, lessee. It was not recorded.

Appeal of Charles J. Leonori, administrator, &c., defendant-appellant. On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, who filed the following opinion: “At the conclusion of the testimony some time ago, I reached what I. thought was the true solution of this controversy, and the arguments of counsel, just finished, sustain the view I then entertained.

Appeal of John P. Eamsey, administrator, &c., defendant-appellant. On appeal from a decree of the court of chancery advised by Vice-Chancellor Baches, whose opinion is printed with the last preceding case.