Knowledge of that fact, under the circumstances stated, does not affect his rights. In the absence of agreement successive indorsers for the accommodation of a third person are liable in the same order as indorsers for value: Shaw v. Knox, 98 Mass. 214; Daniell on Negotiable Instruments, 3d ed., sec. 703. The conversation which took place between the parties, so far from expressing a different agreement, gave notice to the defendant that the plaintiff required his indorsement as the condition of becoming a party. It fortifies the presump tion arising from the face of the paper. The suggestion on behalf of the defendant, that he signed also for the accommodation of the plaintiff, perverts, if it does not contradict, the agreed facts. It was urged that the plaintiff took the 596 note when overdue. But his rights and liabilities were fixed at the time of his indorsement. If the argument was sound, the judgment ought to have been for the defendant indorser in Woods v. Woods, 127 Mass. 141.

Judgment affirmed.

NEGOTIABLE INSTRUMENT-ACCOMMODATION PAPER-LIABILITY OF IN DORSERS.—This subject is thoroughly discussed in the extended note to Altoona Second Nat. Bank v. Dunn, 31 Am. 8t. Rep. 745.

CASES

IN THE

COURT OF ERRORS AND APPEALS

ОР

NEW JERSEY.

BURNET V. CRANE.

[56 NEW JERSEY LAW, 285.]

WAYS-RIGHT OF WAY AS DEFENSE TO EJECTMENT.-The existence of a right of way over certain land is no defense to an action of ejectment by the owner of the fee. A right of way does not justify exclusive possession of the land by the party to whom such right belongs. EJECTMENT to recover possession of a triangular parcel of land lying between the southerly line of Westfield avenue and the former center line of Golden street, in the city of Elizabeth. Before the opening of Westfield avenue and the vacation of Golden street Crane was the owner of the land in dispute, north of the center line of Golden street, and Burnet was the owner of the land south of such line. Upon the opening of Westfield avenue Burnet extended fences so as to inclose the triangle in question, and thereby took exclusive possession of the land in dispute. Subsequently the public easement in the land in Golden street outside the limits of Westfield avenue was, upon its being vacated, surrendered by virtue of provisions of the city charter, and Crane then brought suit to recover the land in dispute. Burnet defended on the ground that although the public easement in Crane's land in Golden street may have terminated, yet defendant, as abutting owner, had a private right of way thereover. The trial court ruled that such defense was no bar to the action, and entered judgment for plaintiff. Defendant appealed.

P. H. Gilhooly, for the plaintiff in error.

F. Bergen, for the defendant in error.

287 THE CHANCELLOR. The existence of the easement claimed by the plaintiff in error will not justify the exclu sive possession which she has taken of the land. Such possession is not necessary to or authorized by a mere right of way, and is inconsistent with the right of the defendant in error, which the present action is brought to vindicate. A clear and generally accepted exposition of the law here applicable is found in the language of Mr. Justice Bigelow, in Morgan v. Moore, v. Gray, 319, 322: "It is no answer to this action [action by writ of entry] that the tenant is the owner of an easement in the demanded premises, and has therefore the right, as against the demandants, to use it forever as a passageway. The right to a fee and the right to an ease.ment in the same estate are rights independent of each other, and may well subsist together when vested in different persons. Each can maintain an action to vindicate and estab lish his right, the former to protect and enforce his seisin of the fee, the latter to prevent a disturbance of his easement. The demandants can therefore well maintain their writ of entry, because, as the tenant is in, occupying the entire premises and denying the demandants' seisin, this is the appropriate remedy by which to assert their title to the fee. And their recovery in this action will in no way affect or impair the rights of the tenant in the easement in the premises."

The correctness of this statement was recognized by Mr. Jus tice Depue, who, in writing the opinion of the supreme court of this state in Hoboken Land etc. Co. v. Mayor etc. of Hoboken, 36 N. J. L. 540, said that, although it had been decided by the supreme court of the United 288 States that a municipal corporation may defend ejectment at the suit of the owner of the fee, by setting up the right of possession in a street or common under the rights acquired by the public in a dedication to a public use, the rule was otherwise in case the servitude was a mere private easement. In Wright v. Carter, 27 N. J. L. 76, ejectment was brought by the owner of a fee in a highway, among other things, because of the erection of a toll-house in the highway on his land. The supreme court held that the toll-house was not a servitude additional to the public easement of way, but upon that point the court of errors and appeals, without opinion, reversed the decision, the effect of the reversal being to establish the right of the plaintiff in ejectment to recover subject to the easement of way against the appropriation of the land to a purpose not

within the limits of the easement: State v. Lavarack, 34 N. J. L. 201; Wuesthoff v. Seymour, 22 N. J. Eq. 66; Citizens' Coach Co. v. Camden Horse R. R. Co., 33 N. J. Eq. 267; 36 Am. Rep. 542.

The rule stated is not only well founded in principle, but is also sustained by authority: Goodtitle v. Alker, 1 Burr. 133; Hancock v. Wentworth, 5 Met. 446; Jamaica Pond Aqueduct Co. v. Chandler, 9 Allen, 159; Proprietors etc. v. Nashua etc. R. R. Co., 104 Mass. 9; 6 Am. Rep. 181; Reformed Church v. Schoolcraft, 65 N. Y. 134; Strong v. City of Brooklyn, 68 N. Y. 11; Cooper v. Smith, 9 Serg. & R. 26, 31; 11 Am. Dec. 658; Warwick v. Mayo, 15 Gratt. 528, 548; Bolling v. Mayor etc., 3 Rand. 563; Sedgwick and Wait on Trial of Title of Land, sec. 132, and note.

The judgment below will be affirmed..

PRIVATE WAYS-RIGHTS OF GRANTEES.-The owner of a right of way has a right to exclude such strangers from its use, and to restrict such use of it by the owner of the servient tenement as is inconsistent with the enjoy ment of such right of way: Herman v. Roberts, 119 N. Y. 37; 16 Am. St. Rep. 800. See, also, the extended notes to Pettingill v. Porter, 85 Am. Dec. 680; Welch v. Wilcox, 100 Am. Dec. 115, and Mitchell v. Seipel, 36 Am. Rep. 415.

KEEPERS V. FIDELITY TITLE AND DEPOSIT Co.

[56 NEW JERSEY LAW, 802.]

GIFTS CAUSA MORTIS.-DELIVERY of the key to a locked box containing valuable papers and securities is not a sufficient delivery to constitute a valid gift causa mortis of the contents of the box when the latter is not in the presence or immediate control of the donor, but in another room, in a locked closet, to which a third person has the key, and does not pass into the actual possession of the donee during the lifetime of the donor.

WILLS-CONSTRUCTION-RIGHT OF SURVIVOR TO TAKE. Under a will direct. ing that testator's property be divided equally between two daughters, each to take upon arriving at a certain age, and that, if either died be. fore arriving at that age, her children should inherit her share, but if she left no issue, then the survivor of the daughters to take such share, does not give the surviving daughter any right to take the share of her sister who has died without issue after arriving at the age designated in the will.

ACTION to recover certain bonds and other securities which had been the property of Minnie Munn in her lifetime. The plaintiff, Lillie Keepers, was the sister of said Minnie Munn, and the latter, while on her deathbed, and a few hours before

her death, gave to the former a key of a certain box, saying at the time that she thereby gave her sister all that the box contained. At this time the box which the key fitted was in another room in the same house, and in a locked closet, of which Miss Munn's mother had the key. The box contained the securities in dispute, and during Miss Munn's life Lillie Keepers did not ask her mother for the closet key, nor assume, nor attempt to assume, control and possession of the box and its contents, which after the death of Miss Munn were given to her administrator. Lillie Keepers also claimed the securities in question as her property by virtue of the following provision of her father's will: "I give and bequeath all my estate to my two daughters, Lillie and Minnie, to be divided between them equally, share and share alike, each one to come into possession of her respective share upon arriving at the age of twenty-three years, and not before; and, in case of the decease of said Lillie or Minnie before they are twenty-three years of age, the children of said deceased shall inherit the parent's share, but, if there be no issue, then the survivor of the two last-mentioned sisters shall take the other's share; and upon each respectively arriving at the age of twenty-one years the interest of her share shall be paid to her direct." Both sisters arrived at the age of twenty-three years, and the securities in dispute had been transferred to said Minnie as part of her share under the will. She died unmarried and without issue. Judgment for defendant, and plaintiff appealed.

R. H. McCarter, for the plaintiff in error.

J. J. Joyce, for the defendant in error.

305 DIXON, J. The first question for solution is whether the delivery of the key of a box containing valuable papers is sufficient delivery to constitute a valid donatio mortis causa of the papers, when the box is not in the presence or immediate control of the donor and, does not pass into the actual possession of the donee during the lifetime of the donor.

The leading case on the subject of donations mortis causa is Ward v. Turner, 2 Ves. Sr. 431 (A. D. 1752), where Lord Chancellor Hardwicke laid down the rule, with reference to delivery, which has ever since formed the basis whereon such gifts are supported. After showing that the recognition of donations mortis causa by the common law was derived from the civil law, he declared that the civil law had been "re