it is my will that the same shall be sold and the proceeds of said sale together with the net amount of rents derived therefrom shall be invested and form a part of the residue of my estate hereinafter mentioned and disposed of. In making any lease or sale of the house and lot in this clause of my will mentioned my executors will take care to provide for always keeping open a sufficient, convenient and suitable right of way from the public road in front thereof to my homestead premises above mentioned. Fourth. It is my will that the premises owned by me and occupied by William Tuttle, also the house and lot occupied by Henry W. Harman. Also the property I purchased from the estate of Henry P. Green shall be kept rented until a favorable opportunity in the opinion of my executors shall arrive for the sale of the same or of any one or more of said pieces of property and then it is my will that the same or any one or more of said pieces of property of which sale can be made shall be sold and the proceeds of derived therefrom shall be invested and form a said sale together with the net amount of rents part of the residue of my estate hereinafter men tioned. Fifth. I do order and direct that the stock of whisky or other liquors I may have on hand at the time of my death, also my horses, wagons, harness, sleighs, tools, farming implements and other goods and chattels not otherwise herein disposed of shall be sold in such manner, upon such terms and at such times as shall be most advantageous to my estate and the proceeds thereof shall be invested and form a part of the residue of my estate. Sixth. I do order and direct that the tract of On June 4, 1883, Frederick Springer died land containing twenty-one acres on the Green leaving the following will: I, Frederick Springer of Madison, Morris county, New Jersey, being of sound, memory and understanding do hereby make, publish and declare this to be my last will and testament in manner following that is to say First. It is my will that all my debts and funeral expenses be paid as soon as conveniently can be after my decease. Second. The homestead property whereon I now reside comprising the three story house and about two acres of land lying between the railroad and the brook and adjoining the graveyard including the lot occupied by Charles Garrison and all my household furniture and housekeeping articles (except the piano forte which I have heretofore given to my daughter Pauline) I give and devise to my wife Louisa for and during the term of her natural life or for so long as she may remain my widow and at her death or remarriage I give and devise the same absolutely to the children I have had or may have by my said wife or their legal representatives. Third. I do order and direct that my executors hereinafter named shall sell the cider mill and distillery building, steam engine, machinery, kettles and distilling apparatus at such time and in such manner as shall in their opinion produce the most money and shall use sufficient of the proceeds of said sale to alter and convert into a dwelling house, the large building standing next to the cider mill and known as the carpenter shop, according to the plans which I have caused to be made for said purpose and which will be found among my papers and the surplus of the proceeds of said sale, if any, shall be invested by my executors and form a part of the residue of my estate hereinafter mentioned and disposed of and I do further order and direct that the said building altered and converted into a dwelling house as aforesaid together with a suitable quantity of land therewith as a house lot for said house, shall be kept rented until a favorable opportunity, in the opinion of my executors, shall arrive for the sale thereof and then Village road opposite the Gibbons wash house shall be held for six years at least after my decease by my executors who shall use or rent the same to the best advantage until a favorable opportunity in their opinion shall arrive, after the expiration of said six years for the sale thereof and then it is my will that the same shall be sold and proceeds of such sale together with the net income which shall have accrued from said premises shall be added to the residue of my estate. Seventh. All the rest and residue of my estate shall be divided into five equal shares for the benefit of my wife Louisa, my three children, Frederick, Pauline and Lilly and my granddaughter Catharine Laubacher and I do order and direct that each of said shares shall be well and safely invested upon bond and mortgage of unincumbered real estate and that the interest arising upon one of said shares shall be paid to my said wife Louisa semiannually during the term of her natural life or for so long as she may remain my widow and upon her death or remarriage, then to the children which have been or may be born to me by her share and share alike for and during the term of their natural lives and upon the death of all of said children the principal of said share shall be divided among the legal representatives of the children which have been or may be born to me by her.. II. The interest arising upon another of said original shares shall be put out at interest and all the interest arising upon said share and the interest upon said interest shall be retained in the hands of my executors during the minority of my granddaughter Catharine Laubacher and shall be paid to her in person when she shall arrive at the age of twenty-one years and thereafter the interest which shall arise upon her original share shall be paid to her semiannually in person for and during the term of her natural life and at her death the principal of her said share shall go to her heir or heirs at law but in no event shall her said share or any part thereof go to the father of said Catharine Laubacher. III. The interest arising upon another of said original shares shall be paid semiannually to, the daughter of his first wife, is expressly the guardian of my son Frederick until he shall excluded from participation in this share. attain the age of twenty-one years and then to him in person for and during the term of his Who the legal representatives of the chilnatural life and at his death the principal of his dren may be at the death of the survivors said share shall go to his heir or heirs at law can only be determined when the survivor absolutely. IV. The interest arising upon another of said original shares shall be paid semiannually to the guardian of my daughter Pauline until she shall attain the age of twenty-one years and then to her in person for and during her natural life and at her death the principal of her said share shall go to her heir or heirs at law absolutely. V. The interest arising upon the other of said shares of the residue of my estate shall be paid semiannually to the guardian of my daughter Lilly until she attains the age of twenty-one years and then to her in person for and during the term of her natural life and at her death the principal of her said share shall go to her heir or heirs at law absolutely. Eighth. The devises and bequests in this will and testament in favor of my wife are to be in lieu of all her right of dower or other rights whatsoever either at common law or by statute in and to any of my estate. And I do hereby appoint my said wife to be the guardian of our children Frederick, Pauline and Lilly. Ninth. I do hereby nominate, constitute and appoint my friends J. Preston Allbright of Madison, New Jersey, and John H. Hornett of New York to be the executors of this my last will and testament. In witness whereof, I, the said Frederick Springer, have hereto set my hand and seal on this thirteenth day of April in the year of our Lord one thousand eight hundred and seventyfive. [Signed] Fr. Springer. [L. S.] Testator left him surviving his wife Marie, three children, Frederick, Pauline and Lilly, and a granddaughter, Catherine, the child of his first wife. His widow Marie died intestate in 1907 and his daughter Pauline, who had married Edward Van Voorhis, died intestate in 1917 leaving her surviving three children Fred, Harold and Preston. Charles A. Rathbun, of Morristown, for complainant. C. Franklin Wilson, of Morristown, for defendant Lilly Cook. Howard F. Barrett, of Madison, for defendants Fred Van Voorhis and others. STEVENS, V. C. [1] Testator gives the homestead to his wife for life and at her death "to the children I have had or may have by my said wife or their legal representatives." The remainders vested in the children at testator's death (Guild v. Newark, 87 N. J. Eq. 38, 99 Atl. 120), and as her son Frederick was then living a one-third interest vested in him. When he subsequently died intestate this interest descended upon his heirs at law. [2] Testator directs that the residue of his estate be divided into five shares, and that the interest of one of said shares be paid to his wife during her life, and at her death to her children during their lives, and "upon the death of all of said children the principal of said share shall be divided among the legal representatives of the children which have been or may be born to me by dies. Smith v. Robinson, 83 N. J. Eq. 384, 389, 90 Atl. 1063. [3, 4] Frederick's share is given in the following terms: "The interest arising upon another of said original shares shall be paid semiannually to the guardian of my son Frederick until he shall attain the age of twenty-one years and then to him in person for and during the term of his natural life and at his death the principal of his said share shall go to his heir or heirs at law absolutely." Frederick survived testator four months and died intestate. At the time of his death' testator's estate consisted partly of realty and partly of personalty. The question is, Who are his heirs? If any of testator's estate was at Frederick's death realty and realty not notionally converted, his heirs at law were his two sisters. Comp. St. 1910, "Descent," p. 1918. As far as the estate was personalty, or realty notionally converted into personalty, it went to his next of kin, in the sense of distributees under the statute of distributions. Meeker v. Forbes, 84 N. J. Eq. 272, 93 Atl. 887; Id., 86 N. J. Eq. 255, 98 Atl. 1086. The mother and half sister, represented by her daughter Catherine take equally with his other sisters under this statute. Dickinson's Probate Court Practice, 165 Gen. St. p. 2390. See Smith v. McDonald, 71 N. J. Eq. 261, 65 Atl. 840. And the only question is, What portion, if any, of the real estate is to be considered as having been at Frederick's death, notionally converted? [5] I think the testator intended a conversion out and out of all his real estate except his homestead. It is his will that the property he particularly specifies "shall be sold" and that the proceeds "shall be invested" and form part of the residue. As to the residue he divides it into five shares and "orders and directs that each of said shares shall be well and safely invested upon bond and mortgage of unincumbered real estate" -a direction which, if it is to be complied with, necessitates a conversion of all the real estate included in the residue. Lindley v. O'Reilly, 50 N. J. Law, 646, 15 Atl. 379, 1 L. R. A. 79, 7 Am. St. Rep. 802; Wright v. Keasbey, 87 N. J. Eq. 52, 100 Atl. 172. He directs that the interest arising upon each of the shares shall be paid to the wife and children respectively, and that the principal of the several shares shall go, in the case of the wife's share, to the legal representatives of her children and in the case of the other shares to the heir or heirs at law of the children respectively. The direction to sell is throughout mandatory. place until the occurrence of “a favorable opportunity in the opinion of his executors," but this is no more than what is generally implied, for unless directed to sell within a specified time executors do not ordinarily sell until the "favorable opportunity" arises. In Lewin on Trusts (*947) it is said: "A direction to trustees to sell 'as soon as they shall see necessary for the benefit of the cestui que trust or whenever it shall appear to their satisfaction that such sale will be for the benefit of the cestui que trust,' amounts to an imperative direction to convert," and the property is under such circumstances considered as converted from the death of the testator. In re Raw, 26 Ch. Div. 601; Cook's Executors v. Cook's Administrators, 20 N. J. Eq. 375. I had occasion to consider one phase of this question in Martin v. Kimball, 86 N. J. Eq. 10, 96 Atl. 565; Id., 86 N. J. Eq. 432, 99 Atl. 1070, but the question itself was different. It was whether testator intended the life tenants to have rent or an apportionment of the proceeds of sale. I came to the conclusion that he intended them to have only rents. I said, however, in the course of the opinion, that: "It may be safely asserted that notional conversion will not be referred to a time anterior to the time when conversion is directed. If, in my will, I direct that my property shall not be sold until ten years after my death, it cannot be deemed converted as of the time of my death." (91 N. J. Law, 360) NUGENT v. GRASSMAN et al. (Supreme Court of New Jersey. June 6, 1918.) 1. ADVERSE POSSESSION 44-CONTINUITY OF POSSESSION. Occasional acts of trespass committed upon wild and uncultivated lands, although extending over a period of 20 years, will not give title, but if such acts occur with sufficient frequency, they amount to that continuity of possession which is an essential ingredient of title by adverse possession. 2. ADVERSE POSSESSION 115(4)-CONTINUITY OF POSSESSION-QUESTION FOR JURY. In ejectment, whether annual cutting of hay on wild land, and placing of corner posts, was sufficient possession to give title by adverse possession, held, under the evidence, for the jury. 3. APPEAL AND ERROR 301-OBJECTIONS IN LOWER COURT-NEW TRIAL. On rule to show cause why verdict should not be set aside, contentions that error in law appears in the charge of the trial court cannot be considered, where not presented by any of the reasons submitted as ground for setting aside the verdict. Ejectment by James R. Nugent against Edward J. Grassman and others. On rule to show cause why verdict for defendants should not be set aside. Rule discharged. Argued February term, 1918, before GUMMERE, C. J., and PARKER and KALISCH, JJ. George Holmes, of Jersey City, and George W. Anderson, of Newark, for the rule. Arthur F. Egner, of Newark, opposed. GUMMERE, C. J. This is an action of on the meadows adjacent to Newark Bay. It is conceded that the ownership of fivesixths of the tract is in the plaintiff. The controversy concerns the remaining one-sixth. The reason is obvious. The testator intended it to retain its character of real estate for that length of time. In the case of the Green Village tract, mentioned in para-ejectment and involves title to a tract of land graph 6 of the will now under consideration, the testator directs that it should be held for six years at least. This was done. It was, so counsel states in his brief, subse quently sold. Its proceeds are now actually personalty. But at the time of Frederick's death it was real estate, actually and notionally. It therefore descended as such upon Frederick's heirs at law. The fact that it has since been changed into personalty cannot alter the right once vested. Meeker v. Forbes, 84 N. J. Eq. 272, 93 Atl. 887. [7] Pauline Van Voorhis died intestate in 1917. The will gives the fifth share in which she had a life right to her heirs at law; but these, so called, in a gift of personalty, mean next of kin, not next of kin in the technical sense of nearest kinsman, but next of kin in the sense of distributees under the statute of distributions. Meeker v. Forbes, supra. Who answer this description cannot be known until the death of the person whose next of kin they are. Williams on Executors, *1008. As they are the statutory next of kin, they must be ascertained by reference to the statute then in force, for no other persons then answer that description. Van Tilburgh v. Hollinshead, 14 N. J. Eq. 32. Consequently Pauline's next of kin must be ascertained by reference to the act of 1914 (P. L. 1914, p. 69). The proofs show that the paper title to this one-sixth is in the defendants. The case of the plaintiff is that originally the whole tract was held in common by several owners, and that in 1865 the owners of five-sixths interest executed a deed to one William F. Haines purporting to convey the absolute ownership of the whole tract; that Haines immediately entered into possession, and exercised acts of ownership over the land from that time on clusive, continuous, and uninterrupted as to until 1901, which were so open, notorious, exvest in him at the end of 20 years from his original entry, a title by adverse possession; and that this title has now devolved upon the plaintiff. The trial of the case resulted in a verdict in favor of the defendants, and we are now asked to set it aside for three reasons: (1) "Because the verdict of the jury was contrary to the weight of the evidence"; (2) "because the verdict of the jury was contrary to law"; (3) "because the verdict of the jury was contrary to the charge of the trial court." The plaintiff's claim of adverse possession was rested largely upon the testimony of his He testified that imgrantor, Mr. Haines. mediately upon the conveyance to him in 1865 he mowed the grass on this tract, and that he continued to do this every year until 1901, when the construction of a railroad embankment prevented him from further continuing this practice; that after that he visited the land from time to time, and cleaned out the ditches around the tract. He further testified that some four or five years after taking possession of this land he put a stake at each corner of the tract; that those stakes were locust stakes; and that they remained in their original position up to the time of the trial. There was also proof that the present plaintiff had paid the taxes upon the premises for the past five or six years; in other words, ever since the conveyance to him by Haines. taxes thereon. Chief Justice Green, speaking for this court, used the following language: "Will an occasional entry upon wild and uncultivated lands for the purpose of cutting wood or making surveys, joined with the payment of being no actual residence upon any part of the taxes, by a party having no legal title, there land, no cultivation, no inclosure, no improvement, no actual occupancy for any purpose whatever, operate to bar the title of the rightful owner? Or may several distinct entries and acts of trespass, coupled with temporary actual occupancy for the purpose of cutting wood, be thus united, and constitute one continuous adverse moment in this state, where there are extensive possession? The question is certainly of great tracts of wild and uncultivated lands at all times exposed to trespass and encroachments There is no decision of this court to countenance without the knowledge of the true owners. the doctrine, and the decided weight of authorOn the other hand, there was testimony of-ity elsewhere, as well as sound principle, is * * And in this view there fered by the defendant tending to show that opposed to it. is no distinction between a naked trespasser and the stakes at the four corners of this tract one who enters under color of title. Both are are not locust, and that they very plainly alike trespassers. The title papers of the lathave been there for only a comparatively ter may serve to extend and define the limits short period of time, not over 10 or 15 years. character. He is nevertheless a trespasser, and of his occupancy, but it does not change its The defendant's evidence also tended to con- the moment his actual occupancy ceases, the tradict the story of Mr. Haines with relation rightful owner, without actual entry, is in posto his having cut the salt hay on the tract an-ment of taxes cannot prove possession. It may session by construction of law. The mere paynually during the period specified by him. be evidence of a claim of title; it may serve This proof, however, was not, in our opinion, to explain the character of the possession, and sufficient to justify the jury in disregarding to extend it beyond the limits of actual occuHaines' testimony upon this point. The principal question, therefore, would seem to be this: Does the fact that Mr. Haines, for a period of over 20 successive years, annually cut the salt hay upon the locus in quo, justify us in declaring that the finding of the jury was contrary to the weight of the evidence? In the case of Foulke v. Bond, 41 N. J. Law, 527, the principles on which the doctrine of title by adverse possession rests are thus stated by Mr. Justice Depue, speaking in the Court of Errors and Appeals: pancy; but the payment of taxes by a party not having the actual possession of any part of the premises cannot prove possession. It would give the owner of the land no right of action against the party paying taxes as a trespasser; and no act can show possession in a party doing it which will not afford to the owner of the land a remedy by action." have been established by the authorities re[1, 2] Two principles may be considered to ferred to: (1) That occasional acts of trespass committed upon wild and uncultivated lands, although extending over a period of 20 years, will not give title; (2) if such acts occur with sufficient frequency they amount to The possession must be actual and exclusive, that continuity of possession which is an esadverse and hostile, visible or notorious, continued and uninterrupted. Notoriety of the sential ingredient of title by adverse possesadverse claim under which possession is held is sion. These are legal rules, but whether in a necessary constituent of title by adverse possession, and therefore the occupation or posses- to establish title are of sufficient frequency a given case the acts of trespass relied upon sion must be of that nature that the real owner is presumed to have known that there was a to amount to a continuity of possession is possession adverse to his title, under which it necessarily a question of fact to be determinwas intended to make title against him. * A party relying on title derived from such a ed by the jury under proper instructions from source must prove possession in himself, or in the court. In the present case the jury has those under whom he claims, of such a charac- determined that acts of trespass committed ter as is calculated to inform the true owner of annually upon the property of the real owner the nature and purpose of the possession to which the lands are subjected. The question do not amount to that continuity of posseswhether possession has been held adversely con- sion which is necessary to be established in tinuously for the period of 20 years, with the order to support a claim of title by adverse requisite notoriety, is one of fact for the jury. possession. We cannot say that they were Occasional acts of trespass extending over the period of 20 years will not give title.' not entirely justified in so determining, and the claim of the plaintiff that the verdict of the jury was contrary to the evidence must therefore fail. * In the case of Cornelius v. Giberson, 25 N. J. Law, p. 1, in which the title to a tract of timber land was involved, the defendant set up title by adverse possession, and attempted to sustain his claim by proof of the cutting of timber from time to time, and the erection of woodchoppers' cabins on the tract. It was The claim that the verdict of the jury was contrary to law is without merit. The law of the case was that laid down by the trial court in its charge to the jury. So, too, the claim that the verdict was con out merit. An examination of the instruction | vorce may be decreed, need not be testimony givto the jury shows that it was strictly regard- en by another or other witnesses to all of the same identical facts to the minutest particulars, ed by that body in its finding. but only their giving such facts in evidence as already testified to by petitioner, or such circumstances tending to establish them, as renders petitioner's testimony so much more probable as empower the judge to accept the truth of the peto be legally acceptable, and which serves to titioner's whole story.' [3] Some contention is made in the brief submitted on behalf of the plaintiff that error in law appears in the charge of the trial court. But, as such error, if it exists, is not presented by any of the reasons submitted by the plaintiff as ground for setting aside the verdict, we have not given it consideration. The rule to show cause will be discharged. (89 N. J. Eq. 1) (No. 43/413.) ROGERS v. ROGERS. (Court of Chancery of New Jersey. May 29, 1918.) (Syllabus by the Court.) 1. DIVORCE 127(4)-GROUNDS-ADULTERYCORROBORATION. The corroboration of petitioner's testimony, required by the law of this state in order that a decree of divorce may be granted, need not be the testimony of witnesses, although, when such testimony can be procured, it should be introduced. The required corroboration may be furnished by surrounding circumstances, adequately established. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Corroboration.] 2. EXPLANATION OF SYLLABUS. A misleading statement in the third syllabus in Foote v. Foote, 71 N. J. Eq. 273, 65 Atl. 205, pointed out. Petition for divorce by Jeffrey J. Rogers against Julia Rogers. Decree for petitioner, advised by an advisory master, adopted as the conclusion of the court, and a decree nisi to be entered. This matter was referred to Alonzo Church, Esq., as advisory master, who filed the following conclusions: "This is a petition for divorce on the ground of adultery. The testimony of the petitioner is corroborated by the confession of the defendant, and by admissions made by her to a friend who testified to them before the special master. Were this all the evidence, I should be forced to the conclusion that the case was one coming under the rule laid down in Garrett v. Garrett, 86 N. J. Eq. 293, 98 Atl. 848, where the Chancellor held that testimony of the petitioner, corroborated only by the admissions or confession of the defendant, will not, without more, support a decree. There is another principle, however, of the law of evidence in divorce cases, which is sometimes overlooked, but which is highly important in the determination of these causes. "The case of Foote v. Foote (Court of Errors cited in the Orens Case as authority for the and Appeals) 71 N. J. Eq. 273, 65 Atl. 205, is above proposition, as is also Williams v. Williams, 78 N. J. Eq. 13, 78 Atl. 693. In the Foote Case, 71 N. J. Eq. at page 280, 65 Atl. at page 208, the court says: 'If the circumstances of the case as shown by the expressions and conduct of the defendant, together with the letters of the parties, all corroborate the testimony of the complainant, the case is complete.' This case, of course, was decided upon its own particular facts, as indeed every case should be, and it might be thought, in the absence of corroboration by witnesses, that both conduct of the defendant and letters of the parties, or at least of the defendant, must necessarily be shown to afford corroboration. I do not so take it. In the case of Robinson v. Robinson, 83 N. J. Eq. 150, 90 Atl. 311, Vice Chancellor Leaming held that corroboration of the testimony of a petitioner need not be by other witnesses, but may be furnished by surrounding circumstances, and remarked, at page 152, that surrounding circumstances adequately established may be of a nature to fully supply the office of corroboration which the law requires in matrimonial cases. In other words, letters and conduct, or either, if established with sufficient clearness, form, as it were, the general atmosphere of the case, which, taken as a whole, will establish a proper basis for a decree, even though there are no corroborating witnesses to the acts alleged by the petitioner. "Applying the above principles to the case under discussion we find, in addition to the evidence mentioned above, that there are in evidence letters, postcards, and pictures which were found in the defendant's valise. They were sent to her by several different men, some of whom are named as corespondents. When confronted with these, the defendant confessed, and they are evidence corroborating the confession. The petitioner's mother testifies that the defendant received a large amount of mail, which she refused to read except in private. When the husband desired to read a letter directed to her as 'Miss,' defendant snatched it out of his hand and ran upstairs with it; and these facts are corroborating circumstances. "Upon considering the whole case, therefore, I conclude that there is sufficient corroboration of the petitioner's testimony from the defendant's confession, corroborated by the above circumstances, to justify a decree for the petitioner, which I shall accordingly advise." Carl Weitz, of Union Hill, for petitioner. WALKER, C. [1] A decree of divorce nisi will be made in conformity with the advice contained in the conclusions of Advisory Master Church, which are hereby adopted as the opinion of the court. "The Chancellor, in Garrett v. Garrett, supra, held that a decree cannot be granted upon the uncorroborated testimony of the petitioner, nor upon the uncorroborated confession of the defendant, nor upon one plus the other. He adds, however, that both are admissible in evidence, but must be corroborated to amount to legal evi- [2] As the case of Foote v. Foote, 71 N. J. dence. This brings us to a consideration of Eq. 273, 65 Atl. 205, is cited in the opinion of what is corroboration. It need not necessarily be the testimony of witnesses, although when the learned master, I desire to call attention such testimony can be procured, it is important to a misleading statement in syllabus 3. It that it be introduced. Corroboration may arise is found in this expression: "Under a statout of facts and circumstances. "In Orens v. Orens, 102 Atl. 436, it was heldute requiring corroborative evidence inter alia: "The corroboration of a petitioner's to obtain a divorce," etc. There is no statetestimony, required by law, in order that a di- ment in the body of the opinion that corrobo |