form any labor for the erection or construction of two or more buildings where such buildings are built and constructed by the same person or persons, it shall be lawful for the person or persons so furnishing such materials or performing such labor to divide and apportion the same among the said buildings in proportion to the value of the materials furnished to or labor performed for each of said buildings, and to file with his, her or their lien claim therefor a statement of the amount so apportioned to each building in lieu of the bill of particulars required by the 11th section of this act, which said lien claim when so filed may be enforced under the provisions of this act in the same manner as if said materials had been furnished and labor performed for each of said buildings separately," etc. P. L. 1873, p. 71 (2 Gen. St. p. 2006, § 17).

This statute does not contem

plate that there should be a separate and distinct lien claim filed for each one of the buildings. It recognizes but a single lien claim. It provides for apportioning the cost of the whole among the said buildings in proportion to the value of materials furnished to or labor performed for each of said buildings, and requires that a statement of the amount so apportioned to each building shall be filed with the lien claim. At the trial of any issue of this sort the propriety of the apportionment may be made a matter of defense; and the act requires that the lien claim state all the particulars connected with it, and to set out the facts on which the issue is to be tried. The lien claim filed in this case is not printed, but from an inspection of the contents of the writ of summons it appears to have been in all respects as required by the statute. If there were any infirmities or imperfections in it, it could have been amended under the liberal scheme of amendment provided by this statute. But, when the lien claim is put on file with a statement of the apportionment expressing the amount for which each building is liable, then in the proceedings for the enforcement of the lien the statute requires that these proceedings shall be the same as if the materials had been furnished and labor performed for each of said buildings separately by a separate suit against the owners and mortgagees of each building. The summons is to be in that form. The declaration, judgment, and execution thereon are to be such in form as they would have been if the amount apportioned to any one building had been furnished to that building without regard to any other. In this respect the summons issued was not in conformity with the statute. But after service the parties voluntarily appeared in court, and submitted to its jurisdiction to proceed by that form of summons, and filed pleas. We think that, under these circumstances, the objection to the form of the writ of summons is not available to any of these defendants.

The declaration also departs from the requirement of the statute. There should have

been a declaration for each case in the form in which the plaintiffs would have declared if the labor and materials apportioned to that particular building had been performed and furnished for such building alone. The infirmity in the declaration appeared on its face, and might be made the subject-matter of demurrer. The defendants pleaded, and it is insisted, that the defect in the declaration is waived by the plea, and cannot be made the subject-matter of objection on the nonsuit. Pleading over is a waiver of mere defects in pleading; but where, as in this case, the plaintiffs' proceeding is contrary to the statute, which alone gives them the right to maintain this suit, the objection goes to the foundation of their action, and may be taken at the trial.

To the question certified the answer of this court is that the plaintiffs were properly nonsuited, unless the infirmities in this proceeding could be cured by amendment.

(61 N. J. E. 163)

PARKER v. STEVENS et al. (Court of Chancery of New Jersey. Nov. 9, 1900.)

EXECUTORS AND ADMINISTRATORS-ADMINISTRATOR DE BONIS NON-NEGLIGENCE OF ORIGINAL EXECUTOR-ACTION FOR DAMAGES -MAINTENANCE-DEMURRER STATEMENT OF GROUNDS-NECESSITY-ACTION BY TRUSTEE.

1. An administrator de bonis non cum testa. mento annexo cannot maintain an action fo damages occasioned by the failure of the original executor to foreclose a mortgage, but such action can only be brought by the creditors of the estate or the beneficiaries under the will.

2. Under a rule of court requiring "that every the particular grounds on which it is based," a demurrer that complainant was not entitled to equitable relief was sufficient to raise the objection that complainant, as administrator de bonis non, could not maintain a suit to recover damages for failure of the original executor to foreclose a mortgage, since an explicit statement is required only where the objection is obscure, but not where the ground of the demurrer is obvious from a reading of the bill.

3. Where a bill by an administrator de bonis non cum testamento annexo to recover damages occasioned by the failure of the original executor to foreclose a mortgage stated that the administrator was appointed trustee, but did not disclose the provisions of the will conferring power on the trustee, nor allege that the mortgage was ever set aside as part of the trust estate, the administrator cannot maintain the suit as trustee.

Action by Frederick Parker, administrator with the will annexed of George A. Corlies, deceased, and as trustee, against William R. Stevens, administrator, etc., of Joseph T. Allen, deceased, and others. Defendants demurred to the bill on the ground that complainant was not entitled to equitable relief. Demurrer sustained.

Frederick Parker, for complainant. Hawkins & Durand, for defendant William R. Stevens. James Steen, for defendant E. W. Allen.

REED, V. C. The complainant filed this bill as administrator de bonis non cum testamento annexo of George A. Corlies, deceased. Abner Allen was one of the executors of George A. Corlies, who died in December, 1866. The complainant is his successor, and as such seeks in this suit to hold these defendants for the negligence of Abner Allen while living, and his representatives after his death. The negligence consisted in failing to foreclose a mortgage held by the estate while the mortgagor remained in pos'session, letting the property run down, and 'without paying interest on the mortgage. This mortgage was foreclosed by the ad'ministrator de bonis non, and there was a deficiency of $11,535.99. The demurring defendants in the suit are the heirs at law and next of kin and the administrators of Abner Allen, and the devisees, legatees, and executors of Sarah E. Allen, a deceased heir at law and next of kin of Abner Allen. The other defendants have neither demurred nor answered.

The primary question is whether the complainant, as administrator cum testamento annexo de bonis non, has a right to pursue the original executor for his negligence in failing to gather in the assets of the testator. In Carrick's Adm'r v. Carrick's Ex'r, 23 N. J. Eq. 364, it was held by Chancellor Zabriskie that an administrator de bonis non could only administer such personal property as remained in specie in the form in which it existed at the death of the deceased. He held that such an administrator could not sue for money into which the original executor or administrator had converted the property of the deceased. The cases cited in support of that view show that this was the settled doctrine of the English courts. Carrick's Adm'r v. Carrick's Ex'r was cited with approval in McDonald v. O'Connell's Adm'r, 39 N. J. Law, 320, and followed in Bradway v. Holmes, 50 N. J. Eq. 311, 25 Atl. 196, Thiefes v. Mason, 55 N. J. Eq. 456, 37 Atl. 455, and Hartson v. Elden (N. J. Ch.) 44 Atl. 156. If the first executor or administrator is not liable to the succeeding administrator for the fruits of any of the assets converted by him, he cannot, upon principle, be liable for a failure to collect any of the assets. The assets themselves passed to the administrator de bonis non, but not the right to sue his predecessor for negligent conduct in respect of them. It was held in Beall v. New Mexico, 16 Wall. 535, 21 L. Ed. 292, that an administrator de bonis non could not maintain a suit upon the original administrator's bond. Courts of states like our own, where the limited power of the administrator de bonis non is recognized, hold that, without statutory aid, the administrator de bonis non cannot sue the original executor or administrator for a devastavit, whether willful or negligent. It was held in Williams v. Cub

age, 36 Ark. 307, that the former could not sue the latter for waste. In Eubank v. Clark, 78 Ala. 73, it was held that only creditors of distributees of the deceased could sue the former personal representative for an account and settlement of the assets wasted or misapplied by him. The same rule is recognized in Blizzard v. Filler, 20 Ohio, 479, and Hanifan v. Needles, 108 Ill. 403. In connection with the last case, it is to be observed that there is an Illinois statute containing provisions similar to those of sec tions 128-131 of our orphans' court act. By those provisions the appointed successor of an executor who has been discharged for one of the causes mentioned in section 128 may bring suit against the discharged executor for a breach of trust or waste permitted in respect to the assets which shall have come to his possession. It was held in Hanifan v. Needles, supra, and is manifest in the language of our statute, that there is no such power given to the new appointee, where the original officer is removed by death, and not by judicial decree. It was so held in Hartson v. Elden, supra. It is therefore quite clear that the right to sue for a devastavit of the deceased executor resides in the creditors of, or the beneficiaries under, the will of the deceased testator.

In this connection, the course of legislation in this state touching this matter is not without interest. In 1877 an act was passed (2 Gen. St. p. 1427) which gave to the executor or administrator of a deceased executor, who died without settling his account, power to exhibit an account of the receipts and disbursements by the said executor of the assets of the estate of the testator, or so much thereof as remained unsettled at the time of the death of the said executor. The statute provided that this account should be settled in the same manner as other accounts. This act was in existence when this bill was filed, but was repealed by the act of 1898 (P. L. 1898, p. 537).

It also appears in the bill that the administrators of Abner Allen, apparently under the power conferred by the act of 1877, filed an account in the orphans' court, to which exceptions were filed by certain creditors. Upon the hearing, the orphans' court made a decree surcharging the estate with six thousand and odd dollars on account of the devastavit in respect to the mortgage. Whether this decree was conclusive in respect to the amount for which the estate of Abner Allen can be held is a question which need not now be settled; the only pertinent point being that for this or for any other losses ac cruing from the negligence of the executor no suit will lie at the instance of the administrator de bonis non.

The demurrers in this case do not set up the inability of the administrator de bonis non to bring suit as one of the grounds for

demurrer. The demurrer, being in the usual form, of course sets up that the complainant is not entitled to any equitable relief. The query is whether, under the rule which requires that every demurrer, whether general or specific, shall state the particular grounds of the demurrer, this point should be considered on this argument. The construction given to this rule in Paper Co. v. Greacen, 45 N. J. Eq. 504, 19 Atl. 466, was that only in cases where the defect in the bill is obscure or latent to such an extent that a court, after inspecting the complainant's bill, can readily discern it, need a demurrant make a more explicit statement of the grounds of his demurrer than the simple statement of want of equity; that a statement of a want of equity will constitute a sufficient specification where the court finds, on looking at the complainant's bill, that his right of relief is doubtful or uncertain. The latter statement is applicable to the present bill; for, in view of the cases in our courts which have dealt with the extent of the power of an administrator de bonis non to sue the original executor, a reading of the bill will at once raise a doubt of the complainant's right to any relief.

It may be further remarked that the suit cannot be retained as one brought by the complainant as a trustee. It is true that the bill states that he was appointed administrator de bonis non and trustee, and that he qualified as such. The provision of the will of the testator is not disclosed in the bill, and so the power conferred upon the trustee is not apparent. Nor is there any allegation that the mortgage touching which the neglect is charged was ever set apart as part of the trust estate, and so was held by the executor as trustee. Schenck v. Schenck, 16 N. J. Eq. 175. There must be a decree for the demurrants.

1. A bill to enforce payment of assessments levied for the maintenance of a private park, claimed to be liens on defendant's lands, established by a trust deed of one of defendant's predecessors in title, which alleges that at a meeting of those entitled to vote, held for the purpose, in accordance with the terms of the trust deed, these assessments were imposed on all persons entitled to the use of the park, is not insufficient, though it is not alleged that the meeting was held in a place in the park, as provided in the trust deed.

2. In an action to enforce payment of assessments claimed to be liens on defendant's lands, made by his predecessors in title. it is not a ground for demurrer that the defendant has not signed an instrument in writing authorizing the assessment, since the statute of frauds is not applicable.

3. In an action to enforce payment of assessments claimed to be liens on defendant's lands

under a trust deed of one of defendant's predecessors in title, which provides for the payment of a tax not exceeding $10 a year on each acre for the maintenance of a private park, the bill is not demurrable for want of an allegation that the taxes were not in excess of the amount required, where the assessments were within the limits of the trust deed, since the action of the trustees in fixing the tax within those limits can only be reviewed on affirmative allegations set up as defense.

4. A trust deed provided that certain lands were to be conveyed subject to the express charge of maintaining a certain tract as a private park. The deed designated four classes of persons entitled to the use of the park, the last named being exempt from the payment of taxes for its maintenance. After the designation of parties entitled occurred this clause, "so long and for such time only as they shall severally reside upon the said lands and premises within the limits aforesaid." Held, in an action to enforce payment of assessments levied in accordance with the deed, that the limitation applied solely to the fourth class of persons designated, and hence defendant, an owner of another class, was entitled to the use of the park, and liable to taxation for its maintenance, though not an occupant or resident on the land.

5. Where a bill in an action to enforce payment of assessments levied under a trust deed expressly alleges title in defendant to a certain easement appurtenant to his land, he cannot set up on demurrer a defect in his title by reason of a deed of a predecessor in title, limiting the easement to the period of occupancy or residence on his lands, since a defect in title can be set up only as a defense when both failure of title and eviction must be shown.

6. A charge imposed on defendant's lands by his predecessors in title, as part consideration for the conveyance, for the maintenance of a park granted as an easement appurtenant to the land, is not in violation of the rule of perpetuities, or the statute relating to tenures, but is enforceable in equity as a trust imposed on the land.

Bill by Daniel A. Heald and others against Peter A. Ross and others. Demurrer to bill. Overruled.

The bill is filed to enforce the payment of charges upon lands of defendant Ross, being assessments for the maintenance of Llewellyn Park, in Orange, Essex county, which are claimed to be liens upon the lands by virtue of express charges thereon in the deeds of defendant's predecessors in title, of which charges defendant had notice. The cause is heard upon demurrer to the bill, which discloses the following substantial facts bearing upon the question of the assessment and the lien therefor upon the lands in question: Llewellyn S. Haskell executed a deed to trustees dated February 28, 1857, which recited, inter alia, his ownership of 50 acres of land, particularly described, and his purpose to devote this tract to the purposes of a private pleasure ground under the name of Llewellyn Park, to be used and enjoyed by certain persons who then were or might thereafter become the owners or occupants of certain other lands and premises in Orange, in the manner and on the terms prescribed, and recited also Haskell's ownership in fee of other lands in the vicinity of the park within the boundaries of four roads named, and containing about 275 acres. The deed, after these and other

recitals, conveyed in fee to three persons the 50-acre tract in trust to permit its use as a place of resort and recreation by the several persons and parties mentioned in the deed under four classes; the first being "the party of the first part [Haskell and his wife], their heirs and assigns." Further trusts were declared, inter alia, to permit "Haskell and every such other person as may, by the payment of annual taxes or assessments, contribute his, her, or their proportion towards the expenses of maintaining and embellishing the said Llewellyn Park, by a majority of votes, each person having one vote for every acre of land owned or occupied by him that may be subject to such assessments,-annually." and at a time and place fixed in the deed, to choose managers, who should for the year ensuing have control of the park, for its inclosure, maintenance, etc., the cost of which and the annual taxes upon the park were to be defrayed by the managers "out of and by an annual tax or assessment upon all the persons, Charles Harrison and his heirs excepted, having the right to the enjoyment and use of the park in manner aforesaid." The tax or assessment was to be imposed at the annual meeting in January by a majority of votes, and was to be payable to the managers on or before March 1st; the annual tax, however, not to exceed $10 "for each acre of the aforesaid land and premises that is owned or occupied by him or her." Haskell, in the trust deed, covenanted that the first 250 acres of the lands referred to in the deed which should be sold and conveyed to him, his heirs, executors, or administrators, should be sold and conveyed subject to the payment of the annual taxes or assessments for the maintenance of the park, and, after 250 acres had been sold, the person or persons purchasing of Haskell, his heirs, executors, or administrators, the remaining portion, should be entitled to the use of the park only upon prepayment of $100 per acre of the lands purchased, and afterwards of the annual taxes or assessments imposed. Provisions for the appointment of successors to the trustees were made by the deed. After the execution and delivery of the trust deed and the acceptance of the trust by the trustees, as appears by the bill, Haskell conveyed to numerous purchasers portions of the 275 acres, the conveyances of these tracts being expressly subject to the payment of the annual taxes or assessments for the park; and managers elected by the persons entitled under the deed were chosen annually, and assessments annually made by them (and especially from the year 1886 to 1898) at the rate of $10 per acre, there being no other source available for payment of the annual state, county, and township taxes and the maintenance of the park. Defendant's lands are part of the 275 acres owned by Haskell at the time of the making of the trust deed, and his title to these lands and to the use of the park is shown by the bill to be as follows: On De

cember 17, 1861, Haskell and his wife conveyed a portion of the 275 acres, which included defendant's lands, to John L. Blake, in fee, upon certain trusts for the benefit of Haskell and his wife; one of which was to sell and convey the same to bona fide purchasers upon such terms and upon such estates as Haskell should request in writing. On October 23, 1869, Blake and Haskell, for $73,000, conveyed to one Alvah Wiswall, in fee, three tracts of the land conveyed to Blake, containing together about eleven acres (subject to mortgages for $10,000), "with the ways, waters, profits, privileges, and advantages, with the appurtenances to the same belonging. Also, as an easement appurtenant thereto, the right to frequent, use, and enjoy a certain private pleasure ground in the vicinity thereof, known as 'Llewellyn Park,' for the purposes and upon the terms, charges, conditions, restrictions, and regulations set forth in the trust deed above mentioned, and all the right and estate of the grantors in the premises, subject, however, to the provisions of the said trust deed in respect to the payment of the annual taxes or assessments which may at any time hereafter be imposed upon the above-described land and premises for the maintenance and embellishment of the said Llewellyn Park, which said taxes or assessments, while they remain unpaid, are hereby created a lien and incumbrance on the said lands and premises." And it was agreed that in default for a year in payment the lands might be sold by the court of chancery on the application of the trustee or trustees for the time being, and the taxes and costs be defrayed out of the proceeds. The deed contained full covenants of title and warranty by Haskell as to the premises with the appur tenances thereto (except as to the mortgages specified), the covenants expressly running in favor of Wiswall, his heirs and assigns; and Wiswall, the grantee, executed the deed as a party. On February 10, 1870, Wiswall and wife, for $15,000, conveyed a part of the property embraced in the above deed to them to Butcher and Butler, with the appurtenances, and this conveyance also expressly conveyed the right to use the park "as an easement appurtenant to the lands conveyed, upon the terms and restrictions of the trust deed, subject to all the provisions of this deed in respect to the payment of all annual taxes and assessments which may be hereafter imposed, which, while they remain unpaid, are hereby created a lien and incumbrance upon the said land and premises." This deed also contained the provision for sale by the court of chancery in default, and full covenants of title and warranty as to the land conveyed, "with the appurtenances." It was signed by the grantors only. By various mesne conveyances, which need not be stated in detail, the land conveyed to Butcher and Butler became vested in one Flora Sawyer, the grantor of defendant's grantor, the deeds up to this stage containing a conveyance of the land, with

Its privileges, advantages, and appurtenances, and also an express conveyance of the easement to the park, upon the terms and conditions of the trust deed, and subject to its provisions in respect to the payment of the assessments, which, while they remained unpaid, were made liens and incumbrances upon the lands, payment of which might be obtained through proceedings in chancery; and the deeds also contained full covenants of title and warranty. One of these deeds, dated April 25, 1890, by Thompson to Sawyer, was also made expressly "subject to the payment of certain taxes and assessments upon said premises, and payable to the treasurer of Llewellyn Park, amounting to $184.56." On March 18, 1891, Flora Sawyer conveyed to Malcomson, defendant's grantor, the lands in question, with the privileges and the advantages and with the appurtenances. The covenants for title expressly reach to the lands "with the appurtenances thereto belonging," and the conveyance was made subject to all the covenants, conditions, and restrictions contained in the deed from Thompson to Sawyer, and which contained the express covenants as to the annual taxes for the park being liens on the premises. On June 8, 1895, Malcomson conveyed the lands, "with the hereditaments and appurtenances thereto belonging or appertaining," to the defendant Ross, in fee, by a deed of bargain and sale without covenants, in consideration of one dollar. This deed to defendant contained no express reference to the easement to the park, or to any of the previous deeds, but the bill alleges that Ross is not the beneficial owner, but holds the lands on a secret trust for Malcomson, and that this conveyance was made for the purpose of putting the legal title in Ross by an instrument not containing a reference to the antecedent deeds or the trust deed, and that its purpose was to give some supposed advantage to Malcomson in defense of a suit brought to collect the unpaid taxes and assessments. The bill further charges that Ross accepted his deed with full notice of the charges on his lands as contained in the deeds of title above referred to (and on demurrer this must be taken as true). As to the assessment and payment of the taxes, the bill alleges (paragraph 4) that after the execution of the trust deed (December 28, 1857) the persons who were by its terms entitled to vote on the second Monday in January in each year, and particularly in January, 1886, and each year thereafter, at a place in Llewellyn Park, fixed from time to time by the trustees for the time being, "at a meeting held for that purpose in accordance with the terms of the trust deed," chose managers "by a majority of votes of those entitled to vote under the terms of the said trust deed," each person casting one vote for every acre of land owned or occupied by the person voting and subject to such assessment; and that at the meeting in each year, by a like majority of votes, a tax or assessment for the park and the state 47 A.-37

taxes was imposed upon all persons having the right to the use and enjoyment of the park (except one Charles Harrison, who was exempt under the trust deed), never exceeding $10 per year. The bill further alleges (paragraph 20) that the taxes and assessments imposed on defendant's lands from 1870 to 1885, inclusive, were paid by the respective grantees and owners of the lands (naming them), or some of them, and that the taxes imposed in the manner hereinafter stated, and in accordance with the provisions contained in the trust deed, from 1886 to 1897, inclusive, have not been paid, although demand of payment has been made upon the owners of the premises from time to time; and that at the time of filing the bill (December 6, 1898), there was due and owing for taxes imposed, as aforesaid, upon the lands conveyed by the Sawyer and Malcomson deeds, $56.80 for each year; in all, $681.60, besides interest. The defendants to the bill are Malcomson, Ross, and also the previous owners, Thompson and Sawyer, and others made parties as claiming under them by mortgages or otherwise. The defendant Ross specifies seven grounds of demurrer: "(1) That it appears by the facts pleaded that the moneys in question are not a charge on the lands sought to be sold; (2) that it is not alleged that the defendants, or any of them, are or were persons having a right to the use and enjoyment of the park; (3) that it is not alleged that the meeting at which the taxes were voted was held at a place in said Llewellyn Park; (4) that no case for discovery or relief is shown; (5) that the taxes were not assessed by an instrument in writing, signed by the party to be charged; (6) that there is no right in others, without the presence or participation of the owners, to levy assessments or taxes on defendant's lands; (7) that there is no allegation that the taxes were not in excess of the amount required."

Edward M. Colie, for complainants. Jos. A. McCreery and Mr. Malcomson, for defendant Ross.

EMERY, V. O. (after stating the facts). As to the third specification of demurrer, which relates to the form of making the assessments and the person making the same, I am of opinion that this specification is not well founded in point of fact, and that the allegations of the bill in respect to the manner of making the assessment are sufficient. The fifth specification is based on the contention that the statute of frauds is applicable to the case, but I think this statute has no bearing or application in the case. far as the origin of the charge is concerned, the question here is whether an express charge upon defendant's lands, made in writ ing, under seal, by his predecessors in title, in favor of the owners of adjoining lands, over which defendant's lands have an easement by grant as appurtenant thereto, is valid against defendant, who took his lands

So