ÆäÀÌÁö À̹ÌÁö
PDF
ePub

speed, and willfully, carelessly, and negligently driving said railway car with great force and violence upon the plaintiff's carriage, and throwing him out of the same. The case was tried in the district court October 24. 1892, and the court heard the witnesses and evidence produced by the plaintiff and defendant, and judgment was thereafter, on November 2, 1892, rendered by the court in favor of the defendant. An appeal was taken by the prosecutor from that judgment to the court of common pleas in and for the county of Essex. On December 4, 1892, the case came up on appeal, and a trial was had before the court of common pleas. After hearing the evidence, the court affirmed the judgment of the court.below. The case was then removed by certiorari to the supreme court. The case, as it comes before the supreme court, excludes the consideration of all causes of error assigned by the prosecutor, except the eighth, which is: "That the trial in the court of common pleas on appeal from the district court, being a trial de novo, the court erred in rendering the following judgment, to wit: "That the judgment of the court below be affirmed.'" The judgment, as certified to this court by the clerk of the common pleas, is irregular, and defective. On an appeal it is not sufficient for the court of common pleas to render a general judgment affirming or reversing the judgment of the justice. The judgment should be rendered and entered specifically, the same as if there never had been any trial in the court below. A judgment in the common pleas "that the judgment below be affirmed, with costs," has been expressly held to be erroneous. Woodruff v. Badgley, 12 N. J. Law, 367. See, also, Saxton v. Landis, 16 N. J. Law, 302, 304; Ivins v. Schooley, 18 N. J. Law, 269, 270; Doremus v. Howard, 23 N. J. Law, 390, 394.

The only question remaining is, can this judgment be corrected? Section 103 of the district court act (Supp. Revision, p. 240, pl. 94) provides: "That in order to prevent the failure of justice by reason of mistakes and objections of form, it shall be lawful for the judge of any district court or the court of common pleas, on an appeal taken thereto, at all times, to amend all defects and errors in any proceeding in civil causes, whether there is anything in writing to amend by or not, and whether the defect or error be that of the party applying to amend or not, and all such amendments may be made with or without costs, and upon such terms as to the court or judge may seem fit; and all such amendments as may be necessary for the purpose of determining in the existing suit the real question in controversy between the parties shall be so made." The common pleas has therefore the power to correct the judgment below. The proper practice is to remit the record for correction, and the entry of the proper judgment by the common pleas. Doremus v. Howard, 23 N. J. Law, 394.

DUNHAM v. MARSH.

(Prerogative Court of New Jersey. Nov. 1, 1894.)

PROBATE PRACTICE-ADMINISTRATOR'S ACCOUNTMOTION TO STRIKE EXCEPTIONS-EFFECT - ORPHANS' COURT-JURISDICTION.

1. Where, in his exceptions to the account of an administrator cum testamento annexo, the exceptant alleges that he is next of kin of the testatrix, and the administrator moves to strike out the exceptions, without allowing opportunity to substantiate the allegation of kinship, the allegation will be taken, for the purpose of disposing of the motion, as true.

2. An orphans' court may determine any question incidentally and necessarily involved. in the due exercise of its jurisdiction, though the determination of that question, if directly presented, would not be within its jurisdiction; but the binding effect of its conclusion upon the question will not extend beyond the end for which the conclusion is necessarily reached. (Syllabus by the Court.)

Appeal from orphans' court, Hudson county; Hudspeth, Kenny, and Hoffman, Judges. Judicial settlement of the account of Daniel H. Dunham, administrator with the will annexed of the estate of Nancy W. Halsted, deceased, to which Albert R. Marsh filed exceptions. From an order denying a motion to strike out such exceptions, the administrator appeals. Affirmed.

Nancy W. Halsted, of the township of Kearney, in the county of Hudson, died in May, 1891, leaving a will, to which there were three codicils. By the will, executed January 16, 1886, after bequeathing sundry legacies, she disposed of her real estate, devising the portion of it upon which her mansion house was erected to the Newark Orphans' Asylum, of Newark, and, in addition to such devise, bequeathed to the same institution the furniture and other chattels in, and used in connection with, the mansion house. By the second codicil to the will, which was executed on the 17th day of May, 1891, she revoked her former gifts to the orphans' asylum, and made disposition of that part of her real estate which is situate in the township of Kearney, as follows: "And I do hereby direct that the entire property whereon I now reside, consisting of about ten acres, more or less, be deeded to the Newark Protestant Orphans' Asylum, of Newark, New Jersey, on the following conditions, viz.: That said corporation use it as a home for orphan children from all parts of the state of New Jersey, said orphans to be trained in some useful trade or profession, the said property to be held and so used by said corporation perpetually; this branch of said organization to be forever known as the Halsted School or Home, as said corporation may elect." Then, after directing that relatives, visiting her, might occupy her homestead for one year after her death, she proceeded in this language: "And, further, that the residue of my estate be given to the Newark Protestant Orphans' Asylum, provided they accept the above-described

property." On the day which followed the execution of this second codicil, she executed a third codicil, in which, among other things, she provided as follows: "In case the Newark Protestant Orphans' Asylum of Newark, New Jersey, fails to accept of the property described in the last-mentioned codicil, then I direct that said property be deeded to the trustees of the 3rd Presbyterian Church of Newark, New Jersey, to be used at their discretion in the care and education of orphans from all parts of the state of New Jersey. *** I also direct that my books, except those disposed of by my will, be given to the trustees of the 3rd Presbyte rian Church of Newark, New Jersey, to dispose of where they will do the most good, in their judgment." The residue of the estate of the testatrix, disposed of by the second codicil, is claimed to have consisted, among other properties, of household chattels, including the books mentioned in the third codicil, valued, in the administrator's inventory, at $2,409.59. In accounting, the administrator prays allowance for those household chattels and books at their inventoried price, stating that they have been delivered by him to the Third Presbyterian Church of Newark, "in compliance with the bequest in said will." Albert R. Marsh has filed written exceptions to the account which draw in question the amount of the commissions claimed by the administrator, the allowance asked for counsel fees paid by him, the transfer of the personal property above referred to, valued at $2,409.59, to the Third Presbyterian Church of Newark, the failure of the administrator to account for moneys alleged to have been paid to him by an administrator pendente lite, and the completeness of the charges made by the administrator against himself with respect to other properties alleged to have been received by him. In his exceptions he alleges that he is the only next of kin of Mrs. Halsted. The administrator moved to strike out the exceptions, upon the ground that the exceptant did not appear to be interested in the settlement of the account, and from an order of the orphans' court denying his motion he has taken this appeal.

John A. Miller, for appellant. James E. Howell, for respondent.

MCGILL, Ordinary (after stating the facts). The statute (Revision, p. 775, § 105) provides that any person interested in the settlement of any account of an executor, administrator, guardian, or trustee may appear in person or by attorney, and make exceptions to such account. The only question raised by the appellant's motion to strike out the exceptions is whether the respondent is such an interested person as the statute contemplates. The exceptions allege that he is the next of kin of the testatrix. The appellant moved to strike out the exceptions without

demanding the substantiation of this allegation by proof. Such a motion, for its purposes, under the circumstances, must be treated, like a demurrer, as admitting the truth of the allegation touching the respondent's kinship. Such was the effect accorded to a similar motion in Poulson v. Bank, 33 N. J. Eq. 618.

The question, then, presented by the appeal, is reduced to this: Was the next of kin of Mrs. Halsted a person interested in the settlement of the account of the administrator of her estate cum testamento annexo? As he does not take anything by the will, whatever interest he may have must arise from Mrs. Halsted's intestacy of some portion of her estate.. His claim is that her disposition of the residue of her estate, in the second codicil to her will, was conditioned upon the acceptance by the Newark Protestant Orphans' Asylum of real estate devised to it, on the condition that it should be used for a home for orphan children perpetually, as in the codicil provided; and that the gift over, in the third codicil, to the Presbyterian Church, upon the nonacceptance of the realty on the condition stated, did not carry with it the residuary estate. That the orphans' asylum did refuse to accept the intended gift upon the condition stated is admitted. It is observed that the first gifts to the orphans' asylum in the will consisted expressly of both real and personal estate, and that the primary gift by the second codicil was described merely as real estate (“the entire property whereon I now reside, consisting of about ten acres, more or less"), and was directed to be "deeded," an apt word to signify the transmission of real estate. There is nothing in this language that can justify an implication that the furniture in the mansion home was to go with this primary gift. It is a gift of pure realty. The gift was upon condition that the property should be devoted to a prescribed purpose. To this gift, if it should be accepted, the testatrix added the further or secondary gift of the residue of her estate, free from any condition as to its use, thereby adding a premium to induce the acceptance of the realty upon the desired condition. The former gift of the household furniture of the testatrix was revoked. No new specific legacy of it was made. Hence it became part of this residue. In the codicil by which these gifts were offered, the testatrix failed to make provision for the contingency of a refusal upon the part of the orphans' asylum to accept the property tendered; and consequently, the day after its execution, another codicil was prepared, in which, still intent that her residence property should be devoted to the benefit of orphans, she provided that, if the orphans' asylum should fail to accept "the property described in the last-mentioned codicil" on the condition prescribed, said property was to be deeded to the Presbyterian Church, for use in the care and education of orphans.

In this codicil, also, the word "deeded" is used in manner similar to its use in the former disposition of the realty. There was no description of the residue in the former codicil, and hence, taking the terms of the last codicil in their literal meaning, the residue does not pass by it. Besides, the residue consisted, as the administrator's account and the will both show, largely of personalty, for the transmission of which the word "deeded" was not an appropriate term. But that which furnishes the most conclusive evidence that it was not the intention of the testatrix to give the residue of her estate to the Presbyterian Church is found in the express gift to it of the books of the testatrix, which appear by the account to have been part of her household chattels, expressly bequeathed by the will, but subsequently carried by the second codicil into the residuary estate. The implication from such a particular gift of part of the residue to the church is that the remainder of that residue was not intended to be given to it. The maxim "expressio unius est exclusio alterius" applies. I think that the testatrix died intestate as to her residuary estate, and that the household furniture is included in that residue. As next of kin, then, the respondent will take property which is chargeable with the payment of the expenses of the administration of the estate, including commissions to the administrator and the counsel fees for which he claims allowance, and he will be entitled to property unaccounted for if the proofs sustain the exception which charges

that the administrator has received other properties for which he has failed to account, and he will be entitled to the furniture which the administrator claims to have delivered as a specific legacy.

It was contended upon the argument that, as the ascertainment of the status of the respondent as a person interested in the settlement of the account involves the partial construction of the will of Mrs. Halsted, it is not within the power of the orphans' court to decide the matter, because that court does not possess jurisdiction, except, possibly, in the case provided for by the 151st section of the orphans' court act (Adams v. Adams, 46 N. J. Eq. 298, 19 Atl. 14), to construe wills. The error of this contention becomes manifest when it is remembered that the orphans' court is invested with complete and general jurisdiction over the matters which are specially given it in charge by the statute (Pyatt v. Pyatt, 46 N. J. Eq. 285, 18 Atl. 1048), among which is the accounting of executors and administrators. Its action upon an account, duly advertised, is binding upon all persons in interest, and therefore those persons should be heard before the account is allowed. It follows, as a necessary incident to the exercise of this jurisdiction, that the court shall possess the power to determine who the parties in interest are, and, as incident to the exercise of that power,

to solve any question which must necessarily be decided in reaching that end. Den v. Bolton, 12 N. J. Law, 206; Johnston v. Jones, 23 N. J. Eq. 216; Mechanics' Nat. Bank v. Burnet Manuf'g Co., 32 N. J. Eq. 239; Water Co. v. Kean, (N. J. Ch.) 27 Atl. 1019. But the binding effect of the court's conclusion upon the question will not extend beyond the end for which the conclusion is necessarily reached. Upon the decision of the matter now considered, it was necessary for the orphans' court to construe the will of Mrs. Halsted, so far as was requisite to determine the status of the defendant; and, when the exceptions are heard, it will be necessary for it again to construe the will, to determine whether allowance shall be made the administrator because of his transfer of the furniture to the Presbyterian Church as a specific legacy. How far the church will be bound by that construction is not now in question.

The order appealed from will be affirmed, with costs.

[merged small][merged small][ocr errors][merged small]

The board of chosen freeholders of the

county of Cumberland, by resolution, granted to a street-railway company the right to lay its tracks on the center of the Commerce street bridge in Bridgeton (which bridge was built and maintained by the board), and to run its cars thereon. It clearly appeared that, owing to the narrowness of the bridge, no ordinary vehicle could pass on either side of the cars while crossing; so that, during the passage of the cars, no such vehicle could cross in the opposite direction. Held, that such resolution was invalid, either because the board had no power to pass it, or because, if the board possessed such power to consent to a use of such a bridge by a street railway, the grant of such an exclusive use was, under the circumstances, unreasonable, and a plain abuse of the discretion committed to the board.

(Syllabus by the Court.)

Certiorari by the state, on the prosecution of David P. Elmer, against the board of chosen freeholders of Cumberland county and others, to review a resolution passed by such board. Resolution set aside.

Argued June term, 1894, before GARRISON and MAGIE, JJ.

William E. Potter, for prosecutor. thony Q. Keasbey, for defendants.

An

MAGIE, J. The controversy in this case is over a resolution of the board of chosen freeholders of the county of Cumberland, adopted at a meeting on March 21, 1894. whereby, among other things, permission was given to the West Side Railway Company to locate and construct a street railway over the Commerce street bridge, in the

city of Bridgeton, in said county, and to operate cars over said bridge by any mechanical power except steam; the tracks of the railway to be laid in the center of the bridge. This court has recently considered a similar resolution of the same board, granting permission to another street-railway company to construct and operate its railway over another bridge in Bridgeton. State (Lewis, Prosecutor) v. Board of Chosen Freeholders, 28 Atl. 553. It was held in that case that the consent of the board of chosen freeholders was an essential prerequisite to the right of a street-railway company to make use of a county bridge by its tracks and cars. It was further held that the action of such a board in giving consent could be here reviewed and set aside if it clearly appeared that, in giving consent, the board had abused the discretion committed to it. The resolution in that case was vacated as a clear abuse of the board's discretion, because it appeared that the bridge then in question was not of sufficient strength to permit its use for the cars of the street railway with safety, and it was not of sufficient width to admit of such use without injurious interference with ordinary travel. Prosecutor contends, among other things. that, upon the evidence in this case, the resolution before us is clearly shown to be an abuse of the discretion of the board, for the same reasons that were held to invalidate the resolution in the Lewis Case. Without considering any of the other reasons assigned, I have reached the conclusion that this case should be disposed of upon the above-mentioned contention, and that that contention must, upon the authority above cited, prevail. There is very persuasive evidence that the Commerce street bridge is not of sufficient strength to support the cars of the street-railway company with safety; but there is the evidence of an expert who had examined the bridge, and who had reported to the board that it had sufficient strength for the purpose. Under those circumstances, I do not think the court would be warranted in pronouncing this resolution void for unreasonableness, or as an abuse of discretion, for this reason. But the case plainly shows that, if a car of the street-railway company enters upon the bridge on the tracks for which consent is given, every vehicle going in an opposite direction must wait on the other side until the car has cleared the bridge; for the bridge is so narrow as to make it impossible for any vehicle to pass with safety on either side of any car of the company, even of those of least width. The consent, therefore, gives to the railway company the use of the bridge for certain periods, and as often as they choose to run their cars, to the exclusion of others who may have occasion to use it. In my judgment, such a grant, if within the power of the board, is a clearly unreasonable and abusive exercise of such power. But, in my judgment, the board was without power to

give such consent. Assuming that it is settled by the Lewis Case that the board may consent to a street-railway company's use of a county bridge by its cars, its power to consent is limited. It cannot consent to a use destructive, even temporarily, of the lawful use by others having occasion to use it. The bridge was built and is maintained for the passage of the public, on foot or in vehicles, the track of which is regulated by law. No power is given to this public body to prohibit the passage of such vehicles. Nor can

it give to any person, natural or artificial, a monopoly of passage. The street railway and its cars constitute a modern use of highways of a kind similar to the uses to which highways are devoted. If chosen freeholders can consent to their use of a county bridge whereby a highway is carried over a river, their power is limited to granting permission for a use compatible with the customary use of the bridge. It does not extend to permitting the occupation of the center of a bridge to the exclusion of other vehicles during the passage of the cars. Railway Co. v. Mills, 85 Mich. 634, 48 N. W. 1007. For this reason, the resolution brought up by this certiorari must be set aside, with costs.

[merged small][ocr errors][merged small][merged small][merged small][merged small]

1. The act of March 25, 1881 (P. L. p. 257), requiring actions against railroad corporations for negligence to be brought within two years, does not apply to horse railroads.

2. When a case of which the common pleas would have jurisdiction if originally instituted there is brought in the circuit court, and sent down to the common pleas, to be tried under the act of 1892 (page 224), and is tried by the parties in that court without objection, the losing party cannot after judgment challenge the jurisdiction of the trial court. It is not a question as to the jurisdiction of the pleas, but as to the mode in which the pleas acquired jurisdiction. Jurisdiction cannot be conferred by consent, but irregularity in the mode of acquiring it may be waived.

(Syllabus by the Court.)

Error to circuit court, Hudson county.

Action by Vincent U. Flanagan against the North Hudson County Railway Company to recover damages for personal injuries caused by defendant's negligence. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Argued at June term, 1894, before THE CHIEF JUSTICE and DEPUE, VAN SYCKEL, and LIPPINCOTT, JJ.

Thomas F. Noonan, Jr., for plaintiff in error. J. C. & S. A. Besson, for defendant in

error.

VAN SYCKEL, J. This is an action brought by Flanagan, an infant, to recover damages for personal injuries.

The first question presented by the case is whether the act of March 25, 1881 (P. L. 1881, p. 257), applies to a street railway. The act reads as follows: "Section 1. That all actions hereafter accruing for injuries caused by the wrongful act, neglect or default of any railroad corporation owning or operating any railroad within this state, shall be commenced and sued within two years next after the cause of such actions shall have accrued and not after." The title of this act is "A further supplement to the act entitled 'An act respecting railroads and canals,' approved March 27, 1874." The act of 1874 and the supplement of 1881 must be construed as one law. one law.

Van Riper v. Public

Road Board, 38 N. J. Law, 23. The act of 1874, respecting railroads and canals, makes steam railroads a class by themselves, and many of its provisions exclude the idea that it was intended to apply to horse railroads. Section 1 (Revision, p. 909) imposes a penalty on "engineer" for neglect of duty in "the running of trains." Sections 2 and 6 require a bell on the engine, and provide that it shall be rung at the distance of at least 300 yards from every highway crossing. Section 7 requires at every road crossing the erection of a board with the inscription "Look out for the locomotive." These sections, and others with respect to screens on locomotives, rates of freight charges, and unclaimed freight, show that the act of 1874 was intended to regulate and govern a class of corporations to which horse railroads do not belong. The second section of the act of March 25, 1881, is of like purport. It provides that "all actions for injury to property by fire communicated by a locomotive engine of any railroad corporation owning or operating any railroad in this state shall be commenced in one year." The inference to be drawn from the entire act-that the defendant is not within its provisions-is not repelled by the fact that the act of 1863 gives the defendant the right to use a dummy engine. The defendant corporation, in virtue of the various acts under which it holds its franchises, is a horse-railroad company; and the fact that it may, with consent of the municipality through which it runs, use dummy engines, does not make it a steam railroad, so far as to subject it to the provisions of the act of 1874 respecting railroads and canals. It is still a horse-railroad company, with the right, under certain conditions, to use steam power in a limited way. The two-years limitation, therefore, in the act of 1881, does not pertain to this case, and is not a bar to the plaintiff's action.

In the second place, it is assigned for error that the circuit court in which this suit was instituted ordered it to be sent into the court of common pleas for trial, and that such order was entered without previous notice to the defendant. This order transferring the cause into the inferior court was made under the act of 1892 (page 224). The ques

tion whether the circuit court can, without the consent of a party, hand a case down to the pleas, is not presented now. The case would have been triable in the pleas if originally brought here; the subject-matter of the controversy was within the jurisdiction of that court. It is not a question as to the jurisdiction of the trial court, but a question as to the mode in which jurisdiction was acquired. Jurisdiction cannot be conferred upon a court by mere consent, but an objection to the mere mode of the acquisition of such jurisdiction may be waived. The defendant engaged in the trial without objection, and thereby waived any right he might have had to the manner in which he was brought into that court to answer to the plaintiff's claim. The law is well settled that he cannot, after attempting to obtain a favorable result there, deny the right of the court to try the case.

The question of negligence was one for the jury, and in the charge of the court we find no error to which the defendant can justly except. The judgment below should be affirmed.

Nov. 5,

DODSON et al. v. SEVARS et al. (Court of Chancery of New Jersey. 1894.) EXECUTORS-ACTION BY DECEDENT'S CREDITOR— DISCOVERY OF ASSETS - RELEASE OF EXECUTOR -LIABILITY FOR LEGACY.

1. A creditor of a decedent, whose claim was not, in due time, presented to the executors, and who is bound by a decree of the orphans' court, in pursuance of the statute (Revision, p. 764, § 62), may nevertheless maintain an action against the executors for payment of a ratable portion of his debt from any legacy or legacies which shall not have been paid over by the executors, or have been attached in their hands. 2. Such a creditor may go into equity for discovery of such assets in the hands of the executors, and, when there, will be permitted to establish the validity of his claim, and have it satisfied, so far as the assets discovered may lawfully be resorted to.

3. When an executor delivers a specific legacy, bequeathed to one for life, and to another absolutely after the life estate, to the life tenant, taking a proper receipt or inventory for the taker in remainder, he is discharged from any further duty or liability with reference to the legacy.

4. Where there is an absolute gift of property for an indefinite time, with unlimited power of alienation, a gift over of that which remains undisposed of at the death of the person to whom the property is given is void.

(Syllabus by the Court.)

Bill by Truman M. Dodson and Charles M. Dodson, surviving partners of Weston Dodson & Co., against James Sevars and George Price, surviving executors of the will of James Taylor, deceased, and others, for an injunction, accounting, the appointment of a receiver, and other relief. The defendant executors, jointly; John Sevars, in his own right, and as administrator of the estate of Ella F. Davis, deceased, separately; and Mary E. Sevars, Sarah M. Price, and William F. T.

« ÀÌÀü°è¼Ó »