1 Robbins. Evans v. New Auditorium Pier Co. Evans to Atlantic City on January 2d, 1890. It grants an easement for a boardwalk at the ocean edge with an attending covenant restraining the erection of any buildings oceanward of the boardwalk. The second deed was made by Charles Evans to Richard F. Loper on July 22d, 1895; conveys a lot of land opposite Mr. Evans' hotel on Pennsylvania avenue, at the ocean front, and imposes on the grantee a covenant that he and his assigns should never erect on the premises granted any house or building nearer the line of Pennsylvania avenue than twentyseven feet from the property line. The third deed is what has been described as the boardwalk deed or covenant, dated April 30th, 1896, made by Charles Evans and Richard F. Loper (and many others, owners of the ocean front) to the city of Atlantic City. This deed creates the easement of way (sixty feet wide) of the present new steel boardwalk along the ocean front of Atlantic City, with restrictions against the erection of any building on the ocean side of the boardwalk, except that an owner may build on his property a pier, provided the same is one thousand feet long and is built of steel or iron. The claims of the complainant, Evans, under the first and second deeds above referred to, are fully discussed in the two opinions above cited, especially in 63 N. J. Eq. (18 Dick.) 662 et seq., citing cases on the subject. When those deeds were made Evans had no title to the lands lying below high-water mark. The defendant's proposed construction, which is now challenged, is located below high-water mark. Evans could not charge the lands which he did not own with restrictions as to their use. The rule holds good when a riparian owner, who has not acquired the state's right to lands lying below high-water mark, attempts to restrict the use of such lands. The decisions on the question declare that an attempted charge by such a riparian owner does not bind the lands lying below high-water mark when the state shall have subsequently granted them to another person. See third syllabus, 63 N. J. Eq. (18 Dick.) 645. The complainant, respecting the restriction against erecting buildings within twenty-seven feet of Pennsylvania avenue, contained in the deed, Evans to Loper, of July 22d, 1895, though Evans v. New Auditorium Pier Co. 67 Eq. admitting that the deed did not convey the lands on which the defendant is building, yet insists that since that time there has been a natural accretion which has carried the high-water mark of the lands conveyed further into the ocean; that this accretion has taken Pennsylvania avenue with it by operation of law, and that the restriction on the lot originally conveyed is also extended over the new accretion bordering on that avenue. The claim is in my view not sustainable. It is within the rulings above referred to, which hold that the restriction imposed is limited to the lands which the grantor owned when the deed was made, and that he cannot, as riparian owner, impose an easement upon the state's land lying under water in front of his own, which shall bind the state's subsequent grantee. The complainant's position regarding the third conveyance, the boardwalk deed or covenant of April 30th, 1896, stands on very different basis. He is an owner of beach front bordering on the boardwalk. His lands presently enjoy the benefit of the boardwalk, the use and value of which are threatened by the defendant's proposed structure, which is a step to shut in the boardwalk from its sea view, for if the defendant company may build on the ocean side, parallel with the boardwalk, so may every other owner, and its whole distinctive attraction may be thus destroyed. Mr. Evans was also one of the co-grantors who joined in the boardwalk covenant of April 30th, 1896, giving Atlantic City the easement over his portion of the way. Mr. Richard F. Loper (then the owner of the locus in quo by purchase from the State of New Jersey by his deed from the riparian commissioners, dated August 29th, 1895) joined with Mr. Evans and others in the covenants of April 30th, 1896. So did Joseph Brady, one of the grantors of the defendant company. Each of these co-grantors gave up that part of his own land which was covered by the boardwalk strip in consideration of a like gift made by his co-grantors. The attending covenants, securing light, air and view, were obtained for a like consideration. It was a general scheme of public improvement in which all participated. Its form was a covenant with Atlantic City, but in fact it was a gift by the co-grantors to the public and to 1 Robbins. Evans v. New Auditorium Pier Co. each other. Atlantic City paid nothing to the grantors, but it spent large sums in building the boardwalk. All the values were given by the grantors. No one grantor, nor anyone claiming under him, having accepted the benefits of the others' gifts, can be permitted to destroy its value in an essential particular, as the defendant company now seeks to do. Its Auditorium pier is built immediately contiguous to the boardwalk, using it for access to its Auditorium building. Any co-grantor who joined in the gift of the easement has a status to enforce the general scheme arranged and perfected by it. The defendant contends that there is no proof of a general plan, no meetings of owners, no conference or association for any general object. It seems to me that it is impossible to read the boardwalk covenant deed and follow the course of its lines for the several miles of its length over dozens of ownerships at the ocean edge without perceiving, on the face of those covenants, every indication of a common purpose on the part of the various owners to contribute to the creation of a public promenade at the beach. front with free light, air and ocean view. The other questions raised in these cases are discussed in the opinion filed at the same time with this one in the case of Atlantic City v. New Auditorium Pier Co., ante p. 284, on final hearing. I will advise a decree for the complainant under the provisions of the boardwalk covenant of April 30th, 1896. 1. That a last will and testament has been legally executed and published by the testator, will not be decreed upon uncertain and unreliable testimony. 2. The contents of a destroyed will may be proved by the declarations of the testator regarding the same. 3. A divorce decree granted in another state of the United States will not be recognized in this state if it appears that in applying for such divorce the applicant fraudulently misstated or suppressed facts within his knowledge which would, if the truth were known and disclosed, have adversely affected the judgment rendered, or if it appears that the applicant knew where the defendant resided, and yet no actual notice of the pendency of such suit was given to such defendant. 4. A mistaken conclusion, arrived at upon consideration of existing facts, is not an insane delusion, although the facts may not justify the conclusion. 5. An insane delusion is a fixed belief, based upon supposed facts, which exist only in the diseased imagination of the deluded person, persisted in against indisputable evidence of its falsity. On bill, answer and proofs. The bill of complaint in this cause is filed by one Alla A. Davenport, who claims to be the second wife and widow of Thomas C. Davenport, who died on the 17th day of February, 1903. The bill makes defendants the children of the decedent, Thomas C. Davenport, born to him by Mary A. Davenport, who is alleged in the bill to be a former wife of said Thomas C. Davenport, and also makes defendant the said Mary A. Davenport, who is alleged to claim to be the widow of Thomas C. Davenport. The bill states as the complainant's ground for relief the following circumstances: Mr. Thomas C. Davenport resided at Collingswood, in the county of Camden. He died on the 17th day of February, 1903, possessed of considerable real and personal estate, situate in this state, Pennsylvania and New York. The bill alleges that on or about the 20th day of January, 1903, Mr. Davenport made and published his last will in the manner prescribed by the laws of this state; that by his said will, after making certain specific devises, he gave all the residue of his estate to the complainant, Alla A. Davenport; that he appointed Henry R. Tatem executor of said will, which, the bill of complaint alleges, is substantially in the words and manner set forth in the bill of complaint. The bill further alleges that the testator, having made and published his said last will, caused it to be delivered to Henry R. Tatem, the executor named therein, for safekeeping. That afterwards, on the 16th day of February, 1903, while Mr. Davenport was sick and of enfeebled and unsound mind, and totally unfit and incapable of attending to business, and susceptible to false impressions, hallucinations and undue and evil influences, he was, by his son, Job P. Davenport, unduly influenced to send to the said Henry R. Tatem to return to him the said last will, and that upon the same being returned and delivered to Mr. Davenport he was, through the inducements and undue influence of his said son, Job P. Davenport, and others, induced and coerced to tear part of the will and deliver it up to his said son, who has kept, concealed or destroyed it, intending to defraud the complainant of her lawful rights, so that the last will cannot be probated. The bill further shows that the defendants, children of Mr. Davenport, and their mother, have applied for letters of administration upon his estate; that the complainant has filed a caveat against the issuance of such letters, and that matter is still pending. The complainant alleges that the last will and testament set forth in the bill of complaint was never revoked or canceled in |