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On behalf of the defendants, two legal objections are made to the enforcement of the provision of the will against them—first, that they are not “devisees,” but “legatees,” and are therefore not within the provision, and second, that if applicable to them as legatees, the provision is nugatory. Neither objection is well founded; the first, because it is well settled that where such is the intention of the will, the words "heirs" and "devisees” are held to mean "legatees,” when applied to gifts of personal propcrty. Akers v. Akers (Chancellor Zabriskie, 1872), 23 N. J. Eq. (8.C. E. Gr.) 26, S1; Welsh v. Crater (Chancellor Runyon, 1830), 32 N.J. Eq. (5 Stew.) 177, 180; affirmed on appeal, 33 V. J. Eq. (6 Stew.) 362.
All of the gifts to the several defendants which took effect were gifts of personal property or interests therein, and the defendants were, therefore, in a strictly legal and technical sense, “legatees," rather than "devisees," but the gift to each of them was made by the terms "I give and devise," and the words "devise" and "devisees” were plainly used in the granting clauses of the will as intended to cover interests in personal property and the recipient of such interest. If in the granting clause the defendants' interests were intended to be included by the testator as a "devise," it would seem to be impossible to hold that the condition of receiving the “gift and devise" was not equally well imposed on them by the description of "devisees."
The second objection, that the provision imposing penalty or condition, is void or ineffective, has been decided adversely to defendants' contention by the court of errors and appeals in Hoit v. Hoit (1886), 42 N. J. Eq. (15 Stew.) 388. In that case a provision “that if any or either of my children shall enter a caveat against this my will, he or they shall pay all expenses of both sides," was held valid against a devisee of real estate, not only as a valid condition subsequent for revocation, but on the broader equitable ground that a person accepting a benefit under the will must adopt the will as a whole and conform to all its provisions. And the rule was enforced in this case, although it appeared that in the opinion of the probate court the devisee had reasonable cause for contest, and all expenses on both sides were, as in the present case, ordered to be paid by the executor out of
the estate. Repayment by the devisee of these expenses was decreed upon
the bill. George Decker, by whom the original caveat was filed, does not contest this suit, and the principal issue of fact is, whether either or both of the contesting defendants, Mrs. Whitehead or Grace Conklin, did aid, assist or attempt to prevent the probate of the will. It was admitted at the hearing that there is no proof against the defendant Jennie Conklin. It appears by the evidence of Mrs. Whitehead and Grace Conklin that both of them conferred with George Decker, the caveator, and aided or assisted his solicitors of record in the matter of securing or seeing witnesses. The fair conclusion from Mrs. Whitehead's own evidence, as to her connection with Decker's contest, is that either in commencing or continuing the contest, Decker received an assurance or promise from her that if the executor did not pay his legacy of $100, she would be willing to make him a present of it, and that some kind of writing, not now produced, was drawn in connection with this assurance. But the decisive proof of Mrs. Whitehead's participation in the orphans court proceedings against the probate, is the evidence that on the argument of the case in open court which she attended, Irving E. Salmon, who had hitherto appeared formally in the proceedings only as one of several of the counsel for George Decker, the formal caveator, announced to the court that he appeared to argue on behalf of Mrs. Whitehead, against the admission of the will to probate. The statement as to whom he represented seems to have been made at that time, because of an inquiry then made by the court, for the purpose of having the appearances then made a matter of record.
Mrs. Whitehead heard the statement of her counsel, and by reason of it, had the benefit of his argument in her favor against the will. By this appearance on her behalf, she became a party to the proceedings and entitled to be heard. Bioren v. Nesler (Vice-Ordinary Walker, 1909), 76 N.J. Eq. (6 Buch.) 576. On the decree granting the probate, the record recited that counsel (naming them) appeared and were heard for Decker, the caveator, and for Adeline Whitehead and Grace Conklin, persons interested, and the counsel fees of $2,000 allowed was divided into two
sums of $1,000 each, one to be paid to the solicitors of the caveator, Decker, and Joshua R. Salmon, the other to Messrs. Reed and Salmon (of which Mr. Irving E. Salmon, now deceased, was a member), and Mr. Stilwell, jointly. These were made as allowances to the counsel of "respondents," and I think there can be no question that the court in making the allowances acted on the faith of the statements made by Mr. Irving E. Salmon that he appeared on behalf of Mrs. Whitehead. Decker was a young man of no means, and although it was greatly to his pecuniary advantage that the will should be refused admission to probate, yet he appears to have taken but little personal charge of the litigation, and the course of the trial and proceedings, as well as the evidence in this suit, show, I think, that both Mrs. Whitehead and Mrs. Conklin did aid and assist him in the attempt to prevent the probate of the will by proceedings under the caveat.
As to Mrs. Whitehead, the filing by her of an appeal to the prerogative court from the decree of the orphans court admitting the will to probate, was also, and of itself, "an attempt to prevent the probate of the will.” This results from the nature and effect of such appeal, under our probate system. The jurisdiction of the prerogative court in relation to the probate of wills, is an original jurisdiction and not merely appellate, and upon the filing of such appeal against the decree of the orphans court admitting to probate a disputed writing, the question for decision in the prerogative court is, not the propriety of the decree below, · but the right to the probate of the will. The question of the probate comes up de novo and may be heard in the prerogative court on the same evidence as below, or on additional evidence. Rusling v. Rusling (Court of Errors and Appeals, 1883), 36 N. J. Eq. (9 Stew.) 603, 606; Sanderson v. Sanderson (Ordinary McGill, 1893), 49 N. J. Eq. (7 Dick.) 243, 245. And the effect of the appeal was to stay the probate and issuing of letters testamentary thereon so long as the appeal continued. To this extent, the appeal was as effective against the probate as the filing of the original caveat.
A question was also raised as to whether counsel fees were "costs and expenses” of which the orphans court had the right
Earle v. National Metallurgic Co.
to direct payment, but this right has been settled in Bioren v. Nesler, supra, and the cases therein relied on.
The legacies to these three defendants will therefore be declared to be held subject to the repayment of the expenses paid on the probate by the direction of the probate court. As to the apportionment of the same between the several defendant legatees, counsel will be heard on the settlement of the decree.
ELLIS P. EARLE
NATIONAL METALLURGIC COMPANY et al.
[Decided May 13th, 1910.]
1. Where a mortgage is executed under the seal of a corporation and signed by its vice president, the burden of showing invalidity because of the lack of an authorizing resolution of the directors is on the party asserting the fact.
2. A corporation cannot attack the execution of a mortgage because of the absence of proof of a formal authorizing resolution of the directors where it had received and used the entire consideration paid to it on the faith of the mortgage.
3. Where a corporation's mortgage was conditioned for the payment of any and all sums due to the mortgagee, together with interest thereon up to the aggregate of $75,000 and interest, and all renewals or extensions thereof, whether represented by notes or otherwise, and the affidavit accompanying it stated that the notes were subject to four renewals for four months each, the affidavit did not limit the lien to any specific number of renewals, but only disclosed the extent to which there was an agreement, so that the mortgage covered all renewals of the debt without reference to the number.
4. Where a chattel mortgage is attacked by the mortgagor's trustee in bankruptcy in the state court, for want of proper registration, the defence is not available unless pleaded in connection with an allegation that the trustee represents creditors within the class authorized to avoid a mortgage on that ground.
Earle v. National Metallurgic Co.
5. Bankruptcy act, July 1st, 1898, ch. 541 $ 70a (5), 30 Stat. 565 (U. S. Comp. St. 1901 p. 3451), vests in the trustee in bankruptcy title to all property of the bankrupt which, prior to the filing of the petition, might have been levied on and sold by judicial process against him.Held, that such section entitles the trustee, if representing creditors, to attack the validity of chattel mortgages on property which under the state statutes, could have been levied on by creditors.
6. Under 2 Gen. Stat. 1895 p. 2334 § 5, declaring that a recital in the jurat or certificate that an officer taking an affidavit in a foreign state is a notary, and his official designation annexed to his signature and attested under his official seal, shall be sufficient proof that he was a notary, an affidavit signed, "Richard T. Greene, Notary Public, N. Y. Co.," sufficiently showed prima facie that it was executed before a notary public.
7. Under section 2 of the act (2 Gen. Stat. 1895 p. 2333) regulating affidavits taken before notaries, expressly abolishing the necessity of a seal for certifying affidavits taken within the state, an affidavit purporting to have been taken in New York county, New York, and certified to have been subscribed and sworn to before one who subscribed himself as notary public of New York county, was not defective in New Jersey for want of a seal.
On bill of foreclosure. Heard on bill, answer, replication and proofs.
Mr. Frederick J. Foulks (Messrs. Lindabury, Depue & Faulks, solicitors), for the complainant.
Icssrs. IcCarter & English, for the defendant Perkins, trustee in bankruptcy.
Complainant's bill is filed against the National Metallurgic Company, a bankrupt corporation, and its trustee in bankruptcy, to foreclose a chattel mortgage on personal property of the bankrupt in the possession of the trustee. The corporation makes no defence, but the trustee, in his answer, denies the validity of the execution of the mortgage, and also that the mortgage is a lien on the property.
The bill alleges that the mortgage, with a proper affidavit annexed, as required by the registry acts, was duly recorded, but the answer, while putting complainant to its proof of this allegation, does not expressly deny the validity of the recording,