Schopper on the 21st day of February, 1910, when the complainant was 68 years of age and Theodor 41 years. On the date of the assignment, the complainant was possessed of $41,000 in stocks, bonds, and cash, $21,000 of which were held by Theodor as trustee for the complainant, and the assignment operated to transfer all the stocks, bonds, and cash so held in trust. The complainant was, on the date of the assignment, and for some years before, somewhat feeble mentally, with hearing and vision impaired. He lacked selfdependence and was accustomed to rely upon others. The relations between them were those of trust and confidence. The complainant relied implicitly on Theodor and was dominated by him. The instrument was executed by the complainant at the request of Theodor on the morning of February 21st, prior to which time the idea of disposing of any of his property by gift had not been considered by him, nor had such thought been suggested to him. When the assignment was executed, he was surrounded by Theodor and his wife, Helen B. Smith and Ann Young, sisters of the defendant Mrs. Schopper. There was present no one interested in the complainant, with whom he might advise. All of the property he was then possessed of (excepting accumulations) was derived from his father, who died in 1888, at which time the complainant was employed as a cashier in a large mercantile house in New York City. Almost immediately after his father's death he resigned his position, and has continued out of employment since. In 1895, complainant's wife died, after which he took up his residence at the home of his older brother, George (whose wife was Helen B. Smith, sister of Mrs. Schopper), in Arlington. On October 4, 1904, George died, but complainant continued to reside in the house of the widow of George until April 1, 1912. From the year 1888 until George's death the complainant depended solely upon his brother for companionship and the management and conduct of his business affairs. After the death of his brother, complainant was anxious to secure some person to do for him what his brother had done. He had no relatives by blood, nearer than a cousin, for whom he had little regard. The complainant and his brother George had known Mr. Schopper for some years. IIe had favorably impressed George, who, in his life time, had spoken well of him to the complainant. The relations between the complainant and the defendant Theodor had been those of ordinary neighborly friendship, not in any manner approaching intimacy; they had lived in adjoining houses for a number of years; the complainant had no close friends or companions, and did not seek them, depending almost exclusively upon his brother for companionship. In this situation, the complainant sought some one to take the place of his deceased brother, and, turned to Theodor. Theodor's statement of what occurred is as follows: "Well, he came to me and told me that he felt the death of his brother very much, and if I would take the place of his brother-his brother was helping him along, as I knew, with what little writing there was to be done, and he wanted me to take the place of his brother like a companion and take an interest in him and advise him and do for him whatever he would need me to do, and if I would do that he would make a will in my favor leaving all his property to me; and I said I would and appreciated the regard he held for me, and I was surprised, time I was willing to accept it. I told him my that he made such an offer, but at the same wife and children would also do all in their power to make it agreeable for him and help him wherever they could." To carry out the understanding thus expressed, the complainant, on October 10, 1904, six days after his brother's death, made his will, giving all his property to Theodor. This will was substituted by another dated November 2, 1906, the reason therefor being to conform to the cemetery rules respecting a burial plot, and to strengthen the will, as they understood it, by leaving one dollar to J. E., his cousin; and also one dollar to any other cousin or blood relative he might have upon his decease. Otherwise the wills were alike. Both these wills were delivered to Theodor, and were produced by him at the hearing. Theodor, his wife and children, faithfully observed and kept the agreement made by Theodor down to August 11, 1911, when the complainant wrote Theodor demanding a return of his securities. Notwithstanding such demand, he continued to live with Mrs. Smith until April 1, 1912, when he changed his residence to that of Mrs. Sharp, who is also a sister of Mrs. Schopper, and with whom he resided at the time of the hearing. Prior to this change of residence, Mrs. Sharp, whose relations with her sister were quite unfriendly, saw the complainant so infrequently that her testimony as to the complainant's condition may be disregarded. During the period prior to the break between the parties, the complainant visited the Schoppers three or four times a day; the children served him; the son, Everard Schopper, who was 17 years old at the time of the execution of the assignment, says he ran errands for him, that the complainant was corpulent, and that he performed tasks for the complainant that were odious, such as "manicuring his toenails." Theodor attended to complainant's business and investments and collected the income; and, while his employment during the day was rather arduous, he devoted many nights to discussing with the complainant his affairs, and in his entertainment. He also, on Sundays, frequently, with his family, went to Greenwood Cemetery, where complainant's parents were buried, and from there they generally visited Coney Island on pleasure, at the request of the complainant, on which trips the com permitted Theodor to pay those of himself | days prior to February 21, 1910, Mr. Koch, and family. Thus, for a period of about a member of the bar, called at the house of seven years, Theodor, a young, vigorous man, with his wife and family, largely gave up the pleasures and comforts of evenings and holidays to the care and entertainment of this unattractive, uninteresting, old gentleman. That Mr. Schopper and his family endured all this discomfort from pure affection is unlikely. In the absence of the agreement, they owed him no duty. It is therefore apparent that what they did was in the performance of the obligation imposed upon them by the agreement. Mrs. Smith, while Mrs. Schopper was present, for the purpose of drawing such a will; but Mrs. Schopper so strongly protested against it that the complainant abandoned the idea at that time. Mrs. Schopper informed her husband of these facts. Afterwards, on the 21st of February, 1910, about 9 o'clock in the morning, Mr. and Mrs. Schopper repaired to the house of the complainant and met Mr. Smith. At this meeting, besides Mr. Smith, were Miss Ann Young, since deceased, Mrs. Smith, and Mr. and Mrs. Schopper. Miss Young and Mrs. Smith were both naturally deeply interested in the welfare and success of Mr. and Mrs. Schopper and their children, and Mrs. Smith so testified. Thus, at this meeting, it cannot be said that there was any one present interested in protecting the complainant in the matter then about to be transacted. Mr. Schopper opened the conversation by upbraiding Mr. Smith for attempting to change his will, calling his attention to the agreement between them. A discussion then ensued between Mr. Smith and Mr. Schopper, which, with the drawing of the assignment attacked and the agreement to pay Smith six hundred dollars a years (which were evidently written in less than an hour), consumed practically the entire morning. It is therefore quite evident that they conversed for upwards of an hour, during which a great deal must have been said, and yet the entire conversation testified to by Mr. Schopper is contained in a statement, reiterated several times, of which the following is a sample: In 1905, Theodor discussed the situation with a legal friend, and was made aware of his rights and risks under the agreement as to the will. About the year 1907, Sweetser, Pembroke & Co., a large business house in New York City, became involved, and Mr. Schopper, knowing that practically all of the complainant's wealth was invested with a prominent company at 6 per cent., suggested the wisdom of investing a part of his funds elsewhere, so that he would not be "risking all his eggs in the same basket." Accordingly, in 1907, the complainant drew $15,000 from this account, which Mr. Schopper invested in stocks and bonds, and delivered the same to Mr. Smith, who, for a while at least, kept them in a small safe in his home. Afterwards, the home being considered an unsafe depositary, Mr. Schopper, with the consent of the complainant, placed the securities in Schopper's safe deposit box in New York City, where they remained until February 21, 1910, when the assignment at tacked was made. During these three years the relations of the complainant and defendants seem to have been pleasant and satisfactory. In January, 1910, on examining his account with the company above referred to, it was found that there was on deposit twenty-one thousand six hundred and sixty odd dollars. Mr. Schopper thereupon suggested that Smith reduce the amount of this deposit to twenty thousand dollars, which would yield him a flat income of twelve hundred dollars a year on the investment. This was done, and the surplus, amounting to year. Well, he said to give my wife five bonds sixteen hundred and sixty odd dollars, was withdrawn. Prior to this date the complainant had also sold some real estate and other property, which, with the above surplus (all of which was deposited with Mr. Schopper and invested by him in stocks and bonds), so increased the investment that on February 21, 1910, Mr. Schopper held stocks, bonds, and cash of complainant amounting to $21,000. "Q. What did you say to him? A. I said 'Alec, I hear you want to change that will or make a new will, and I don't think it is fair that you should treat me that way behind my back.' Q. Well, go ahead and tell us all. A. He said he didn't want to treat us badly; in fact, he wanted to make sure that my wife and children got something under the will he was leaving and that none of his relations would get any. I says, if he desired anything like that, why he could instruct me to give my wife some bonds that I held for him and also to give some to the children, and the rest of the securities which I held he could transfer to me, and I would give him four or five hundred dollars a of a thousand dollars each and each of the children one bond of a thousand dollars, but he thought he ought to have more income than four or five hundred dollars a year, and I suggested, 'Well, would $600 a year be fair?' and he says: Yes, that is all right; go ahead and do that. Draw up a paper.' " And thereupon Mr. Schopper wrote the assignment, which did not give any stock and bonds whatsoever to his wife or children, but gave him the entire $21,000 of securities; but Shortly prior to February 21, 1910, Mr. he says that he afterwards delivered $7,000 Smith several times expressed to Mrs. Schop- of these to his wife, $5,000 for her, and per, whom he had known from childhood, $1,000 each for the children. The assigna desire to change his will by leaving some- ment was signed by the complainant and thing to her and her children. She said witnessed by Helen B. Smith and Ann Young. he should not do this, because of his agree- At the time of the signing, Mrs. Smith said ment with her husband; that it would look to the complainant, "Well, I think you sold his favor. "This receipt is amplified in order to show that in addition to valuable considerations for my transfer of securities and action aforesaid, there were also good considerations." and said to Theodor, "Is there anything else | him all my securities valued at twenty-one thouyou want me to sign?" and he said, "No, Alec, sand dollars and agreed to let my will stand in I am perfectly satisfied with what you have done." At the same time, there was an independent agreement written by Mr. Schopper, and signed by him, wherein he guaranteed to pay to Smith, during the remainder of his life, $150 quarterly, on the 1st days of April, July, October, and January of each year. The witnesses to this agreement are Mrs. Helen B. Smith and the defendant Mrs. Schopper. The assignment (omitting the list of stocks and bonds, the attestation clause, signatures of Theodor and the witnesses) reads as follows: "In consideration of one dollar U. S. C'y to me in hand paid, the receipt of which is hereby acknowledged, for services rendered and for other valuable considerations, I hereby give outright, to have, own, possess for himself for ever to my friend Theodor Heinrich Schopper, his heirs or assigns, all bonds, stocks, cash and other securities, which he now holds in trust for me and enumerated as follows:" (Here follows the list of stocks and bonds, after which appears the words "and cash $94.11.") The complainant says he thought he was executing a power of attorney to enable Theodor to deal with the stocks and bonds, and that he did not know he was giving away his property. In this I think he is mistaken, at least to the extent of the bonds given to Mrs. Schopper and her children. This receipt was signed by the complainant, and his signature attested by Helen B. Smith and Ann Young as witnesses. The statement in the last clause of this receipt that it was amplified, etc., to show that "there were also good considerations," is plainly untrue. The so-called amplification consists in the insertion of the words "and agreed to let my will stand in his favor"; its purpose being to have in writing, signed by the complainant, evidence of a promise to allow the will then made and in possession of Theodor to stand. There is nothing in this receipt that expresses the consideration moving from Theodor to the complainant for the assignment more fully, if as full, as that expressed in the assignment. It might be further said that the very full recital that the assignment gave Theodor $21,000 was written for the purpose of making evidence that the complainant knew the contents of the assignment. That greater pressure was exerted by Theodor ment than that appearing in the meager tesupon the complainant to execute the assigntimony of Theodor is readily deducible from: (1) His failure to state more of the conversations between them prior to its execution; (2) the fact that before the meeting on Feb the idea of making an immediate gift of any of his property; (3) that before this meeting his purpose was to retain all his property till death and dispose of it only by will; (4) from Theodor, which gift, as to his wife and that the first suggestion as to a gift came The testimony of Mrs. Smith seems to make it clear that complainant understood he was giving $7,000 to the wife and children.ruary 21st the complainant never entertained She says she understood the paper was intended to give bonds and stocks to Mrs. Schopper and her children, but her understanding as to any gift of bonds to Theodor being contained in the assignment is, to say the least, very uncertain, and suggests the idea that her knowledge on this subject may have been subsequently acquired. She said, however, quite positively, that she saw complainant read the assignment and heard Theodor read it to him, but she did not remember hearing read the names of the bonds or stocks; she did not think Mr. Schopper read them. This may be a mere lapse of memory on the part of the witness, but it tends to support the theory of the complainant that he did not comprehend the transaction. tion of the agreement to let the will stand. children, was as much, if not more, in violaAnd even assuming that the complainant might willingly change the form of his desired bounty to Theodor's wife and children from a gift by will to a present one, there is nothing to indicate that prior to this meeting he ever considered the idea of giving immediately to Theodor $14,000 or other part of his assets; and, lastly, the complainant's conduct the day following, which shows that he was in fear that, in expressing a desire to change his will, he had, notwithstanding the gifts, lost or weakened the friendship and confidence of Theodor, which caused him to visit Theodor and attempt to recover his former position. That he may have entertained these views is not unlikely. Their status had been changed from that of Theodor serving the complainant during life in "Received from Theodor H. Schopper one hun- consideration of the will to that of Theodor dred and fifty dollars U. S. currency being first being in possession of the $21,000 given for payment under his agreement of February 21st, the expressed consideration of services ren1910, to pay me six hundred dollars yearly in dered. In such a situation he had reason to equal quarterly payments on April, July, Octo- believe that Theodor might not continue to ber and January first: And in consideration of which agreement, and other good and valuable render him services which were so disagree Afterwards it may have occurred to Theodor that the assignment and gift might be construed to cancel the agreement to make a will in his favor. He accordingly advised with a friend in New York, as a result of which, when he paid the first installment of $150 which fell due under the guaranty, he wrote a receipt as follows: this subject, apparently because he had forgotten the transaction; but this may be inferred from the testimony of Theodor, who on direct examination said: "Q. What were your relations with Mr. Smith after February 21, 1910? A. Quite friendly, the same as before. He came over to the house and he made a remark, I know the next day, that he hoped I wouldn't feel bad about his intention of changing the will. I says: "That's all right, Alec; I guess I misjudged you.' And he offered to do anything he could to protect He asked me if I wanted to get a lawyer to draw up any paper, and I says: 'No, I guess not; I will trust you.' And we agreed to go on and continue in the same way as we had done before, because he promised to let the will stand in my favor." me. On February 25, 1910, Mrs. Schopper rented a box in the Fidelity Trust Company, where she attended with her children and deposited therein seven bonds of $1,000 each, which her husband gave her, pursuant to his unwritten agreement with the complainant, and at his request. The Schopper children, however, did not know of the gifts to them until after the death of their aunt, Miss Young, which occurred in December, 1910, after which date both the children were informed of the fact, and, by direction of their parents, thanked the complainant for them, and they say he spoke very nicely to them concerning it. No reasonable explanation is given why the parents should withhold the thanks of the children for these gifts for a period of ten months and then direct their expression. The motive is left to conjecture. It may be that the purpose was to recall the fact to the complainant, who if he did not deny might be considered as acknowledging the fact long after the gifts had been made, thus making evidence in their favor if the validity of the gifts was thereafter ques tioned. In June, 1912, the complainant commenced suit in the Hudson circuit court against Theodor to recover the $16,660 given him to invest. The defendant answered, setting up the assignment aforesaid. It appears that no copy of the assignment had ever been furnished the complainant by the defendant Theodor. Its existence, when pleaded, surprised the complainant's attorneys, who thereupon filed this bill. understood the nature of the act, and that should be set aside. [3] The next question to be considered is: Do Mrs. Schopper and her children stand in a better position to sustain the gifts to them than Theodor? The evidence indicates that the thought of a present gift of part of his property to Mrs. Schopper and her children did not enter the mind of the complainant until February 21, 1910, when it was suggested to him by Theodor. Before that time his expressed desire was to leave to the wife and children a portion of his estate by will, but nowhere is there any evidence that be fore the above date he ever expressed a desire to make an immediate gift to them. It therefore is difficult to see where the influence exerted on the complainant to make the gifts aggregating $7,000 to the wife and children differs from that which procured the gift of the $14,000 to Theodor. This situation was presented in Huguenin v. Baseley, supra, and in Bridgman v. Green, Wilm. 58 (64). In Huguenin v. Baseley, supra, Lord Chancellor Eldon said: children of the defendant there was no personal And in dealing with the same subject in I will advise a decree setting aside the assignment, and directing that the defendants make restitution. "Whoever receives it must take it tainted and tion of the person procuring the gift. His parinfected with the undue influence and imposititioning it and cantoning it out amongst his [1, 2] While the complainant had suf- relatives and friends will not purify the gift ficient mental strength to determine the wis- and protect it against the equity of the perdom of the gift under consideration, if sur-be ever so chaste, yet if it comes through a polson imposed upon. Let the hand receiving it rounded by friends to whom he might luted channel, the obligation of restitution will go in case Theodor abandoned him, yet, in follow it." the situation presented, surrounded as he was by the defendants and the sisters of Mrs. Schopper, who were in no manner interested in his protection, and considering his mental [4] Having reached this conclusion, a quescondition, which was somewhat weak, and tion arises which has not been argued, namehis age, with vision and hearing quite im- ly: The defendants gave almost seven years paired, he was subject to the domination of to the companionship and care of this comTheodor, upon whom he relied and in whom plainant and his property. He has now made he reposed the greatest trust and confi- a will, which, I assume, leaves nothing to the dence. The burden was therefore cast upon defendants. And I take it, from the manner derly house is warranted. The judge was careful to say that the illegal selling of intoxicating liquors only would not justify a conviction under the indictment. of the complainant, that it is not his pur-charged that, the judge was not required to pose to make any compensation to the defend-charge the more general proposition that the ant Theodor. While Theodor erred in the sale of cider although without a license for course he pursued, it appears to have been that purpose is not a criminal offense. dictated by a desire to have some protection There was evidence from which a jury might against the instability of the complainant, infer that the cider in question was intoxiand not for the purpose of abandoning his cating, and, since they convicted the defendformer service and companionship; in fact, ant under a charge that made proof of that it appears that he did serve the complainant fact essential, we must assume that they so as faithfully after as before the gift was found. The question then is whether such made. The payment of $600 a year, reserved sales are illegal so that, when accompanied in the receipt, with the $1,200 which com- by other acts of disorder specified in the plainant derived from his other investment, indictment, a conviction of keeping a disorgave the complainant ample funds for his maintenance. No attempt was made on the part of Theodor to reduce the income of the complainant to a point which would work a hardship upon him; so that it might not be Our statute (C. S. p. 1767, § 66) forbids said that Theodor wickedly committed such a the sale without license of vinous, spirituous, breach of his trust to the detriment of the or malt liquors, wine, rum, gin, brandy, or complainant that he should forfeit his right other ardent spirits. The words seem to be to any compensation. The question therefore meant by the Legislature to include all arises whether, before a redelivery is made kinds of intoxicating liquors. Perhaps the to the complainant, he should not be required defendant might have raised the question to do equity by compensating the defendant whether cider even of an intoxicating charTheodor for his services rendered. Reeves v.acter came under the language of the statWhite, 84 N. J. Eq. 661, 95 Atl. 184. Upon ute. Commonwealth v. Raybury, 122 Pa. 299, this I express no opinion, as the point has not been argued. If, however, counsel desire to argue the question, I will hear them on Monday, February 21st, at the Chancery Chambers in Jersey City. 16 Atl. 351, 2 L. R. A. 415. He did not do so. He seems to have assumed that the illegal sale of any intoxicating liquor came within the prohibition of the act. We think this assumption was justified. The judgment is affirmed. (88 N. J. Law, 458) STATE v. CLIFFORD. (Syllabus by the Court.) A jury found that cider sold by defendant was intoxicating, upon evidence justifying such an inference. The defendant did not raise the question whether such a sale came within the language of section 66 of the Crimes Act (2 Comp. St. 1910, p. 1767). Held, that the conviction must be affirmed. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2619, 2620; Dec. Dig. 1028; Intoxicating Liquors, Cent. Dig. §§ 342345; Dec. Dig. 239(10).] Error to Court of Quarter Sessions, Sussex County. Gaston Clifford was convicted of selling intoxicating liquor without a license, and brings error. Affirmed. (88 N. J. Law, 582) PRICE et al. v. EDWARDS. (Supreme Court of New Jersey. April 4, 1916.) 1. TAXATION 876(2)-INHERITANCE TAX EXEMPTION-STATUTE. Testatrix's legacy to the "United Hebrew Charities," a New York corporation, was not exempt from the transfer inheritance tax under the exemption clause of the act of 1894 (P. L. p. 318), exempting property passing to churches, hospitals, and orphan asylums, public libraries, Bible and tract societies, and all religious, benevolent, and charitable institutions and organizations, referring exclusively to domestic charitable corporations. [Ed. Note.-For other cases, see Taxation, Cent. Dig. § 1694; Dec. Dig. 876(2).] 2. TAXATION 876(4)-INHERITANCE TAX EXEMPTION-STATUTE. Testatrix's legacy to the "United Hebrew Charities," a New York corporation, was not exempt from the transfer inheritance tax by the act of 1898 (P. L. p. 106), exempting Bible or tract societies, boards of a church or church orArgued November term, 1915, before GUM-ganizations, the legatee not being a religious inMERE, C. J., and SWAYZE and BERGEN, JJ. stitution, though its activities were confined to members of the Hebrew race. [Ed. Note.-For other cases, see Taxation, Cent. Dig. § 1696; Dec. Dig. 876(4).] 3. TAXATION 876(2)—INHERITANCE TAX EXEMPTION-STATUTE. Under P. L. 1906, p. 432, exempting from the operation of the transfer inheritance tax property passing to churches, hospitals, and orsocieties, and all religious, benevolent, and chariphan asylums, public libraries, Bible and tract table institutions and organizations, a legacy to the "United Hebrew Charities," a New York |