Volume 94 — New Jersey Equity Reports

<p>1. Under a will giving to three-named children the sum of $1,000, the gift to each is $1,000.</p> <p>2. Where the personal estate is exhausted, leaving nothing for the payment of legacies, and there is nothing in the will to the contrary, the legacies were chargeable .upon the lands devised.</p> <p>3. In theory and contemplation of law it is possible for a woman of any age to have issue, and the courts cannot speculate as to a claimed impossibility.</p> <p>-1. Under a will giving property in trust for the testator’s children during their lives, and providing that upon the death of each child one-third of the fund should be distributed to such child’s heirs, the trust was for life, with a vested estate in remainder to the heirs, subject to open and let in after-born heirs.</p> <p>5. Under such a trust, the trust fund cannot be distributed among the children through their living children’s consent, as it cannot be ascertained until their death who their heirs will be.</p>

<p>1. Where it clearly appears that the defendants’ failure to answer in a specific performance suit was not due to. negligence, and their .petition to open the decree pro. oonfesso therein entered against them was- properly filed, the decree should he opened, and they should be permitted to. defend if a meritorious defence is adequately disclosed.</p> <p>2. A bill for the specific performance of a contract to. purchase land filed before the day for performance fixed in the contract was not prematurely filed when the other party repudiated the contract.</p> <p>3. A .provision in the contract for liquidated damages does not necessarily bar specific performance.</p> <p>4. Whore a contract .by a married woman and her husband to convey her land is not acknowledged by her, the purchaser cannot enforce it.</p> <p>5. W'he're a wife who did not originally acknowledge a contract for sale of land afterwards signed and acknowledged it, and also the deed which was tendered in performance of the contract, there was mutuality of remedy to support a suit for specific performance.</p>

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

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

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

<p>On bill, &e. On final bearing.</p>

<p>On application for proof of will in solemn form.</p>

<p>Under the supplement to the act respecting executions, chapter 113, laws of 1916, page 242, an installment ewemtion may issue on an order or decree of the court of chancery as well as on a judgment of a court of law.</p>

<p>1. Where it is alleged in a bill in equity that a defendant's tax title is worthless because of irregularity in the proceedings under which the circuit court made an order directing the making of his deed, and where the remedy by certiorari is lost by reason of the statute of limitations, such loss .of remedy at law does not give jux-isdiction in equity.</p> <p>2. Where it is alleged that such tax title was obtained by fraud, there can be no question that equity can and will relieve, regardless of the correctness of the legal formality.</p> <p>3. Where a bill in equity alleges no more than that the proofs offered to the circuit court were untrue, that is not enough to invoke equity jurisdiction. To impeach and overthrow legal proceedings, it must he shown that the proofs were knowingly false and intended to deceive the court.</p>

<p>1. Where a resident of Ohio executed his will in New York and died there, and the will was offered for probate in New York, and contested there, upon which a temporary administrator was appointed in New York, and the probate court of Ohio also appointed administrators, who filed their bill in this court to obtain certain certificates of stock in a New Jersey corporation,- owned by the testator, but physically in New York, and to procure their transfer by the New Jersey corporation, the ownership of the stock not being in dispute, this court will not interfere between the rival claimants and settle the lawful right of possession.</p> <p>2. It must be assumed that courts of sister states will try issues according to the rules of law, and will decide them upon the facts, applying correct principles, and the courts of New Jersey ought not to assume, directly or by indirection, any appellate jurisdiction over the courts of another state.</p> <p>3. Personal property in a foreign jurisdiction will devolve according to the laws of the domicile.</p> <p>Note.—This case was omitted by inadvertence from the New Jersey Equity Reports at the time the opinion was rendered.—Rep.</p> <p>Note.—Chapter 283, laws of 1921 (P. L. p. 831), confers jurisdiction on our courts to probate wills of non-residents, under certain circumstances, where the decedent was seized of land in this state. —Rep.</p>

<p>3. A wife cannot vary or invalidate the terms of a mortgage signed by her, as against a bona fide holder for value, without notice, by parol evidence that she did not know that the paper she signed was a mortgage, where it is undisputed that 'the mortgagee loaned money to the husband upon the security of a mortgage in fact signed by the husband and wife and where the wife alleges no fraud in the transaction on the part of the mortgagee.</p> <p>2. The purpose and effect of P. L. 1916 p. 821, being a supplement and not an amendment to a former act, were merely to eliminate the requirement of a separate acknowledgment by the wife and to substitute therefor an acknowledgment made in the same manner as if she were a feme sole and to leave the remaining provisions of the former act in full force and effect.</p> <p>3. A mortgage executed 'by a married woman and her husband is not enforceable against her in equity, as a mortgage, unless it is acknowledged by her in compliance with the statute.</p> <p>4. A certificate of acknowledgment of the execution of a mortgage is prima facie evidence of its contents and the burden of proof to show that it is untrue is upon the one disputing its validity.</p> <p>5. In this case the evidence held sufficient to show that the certificate of acknowledgment was false and that the wife did not acknowledge the execution of the mortgage.</p> <p>6. The rule that where a mortgage given by a married woman is invalid because of a defect in or lack of acknowledgment, it will nevertheless operate in equity as an appointment of the property described in it for the payment of the debt, and equity will decree that the debt be a charge on the property so appointed, does not apply where the debt was not contracted for the benefit of the wife’s separate estate, or for her own use on the credit of that estate.</p>

In the matter of the probate of a paper purporting to be the last will and testament of Frederick Crane Hathorn, deceased. From a decree affirming an order admitting the will to probate Mary L. Hathorn appeals. Mote.-—-This case was omitted by inadvertence from the Hew Jersey Equity Reports at the time the opinion was rendered.

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

<p>On appeal from a decree of the court of chancery signed by the chancellor, adjudging the appellant in contempt.</p>

<p>On final hearing.</p>

<p>Where a city -and a railroad entered into a contract stipulating that the railroad tracks will he raised so as to'rest upon an elevated roadbed supported by retaining walls where necessary, their passenger stations and other facilities relocated, altered or reconstructed, and the streets intersected by the railroad changed, vacated or relocated, all as shown on certain identified plans, and the railroad now proposes to construct on the lower platform of the station eighteen glass front stores, not shown on the identified plans, such action will be enjoined, especially when the city has spent large sums of money in relocating, curbing and paving streets in accommodation of the railroads’ scheme of elevation of its tracks.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Griffin, whose opinion is reported in 94 N. J. Eq. 317.</p>