Lawton, jointly,-demurred to the bill. Demurrer of John Sevars, individually, sustained. Demurrers of the other defendants overruled.

The bill alleges that the estate of James Taylor is indebted to the complainants in the sum of $12,749.56, the indebtedness arising from eight promissory notes made by one. Isaac Davis to the order of James Taylor, and indorsed by Taylor, and transferred to the complainants, for value, prior to the maturity of the notes; that James Taylor died at Trenton on August 17, 1887, before any of the notes became due; that when the notes became due they were protested for nonpayment, and notice of the protest of each of the notes was sent to James Taylor, at his late residence, although he was dead, and six of the notes became due and were protested after his will was proved, and letters testamentary had issued to Isaac Davis, James Sevars, and George Price, the executors thereof; that by such will Mr. Taylor bequeathed his personal property contained in his residence, except money and vouchers and securities for money, together with the income from his interest in the Trenton Flint & Spar Company, to his wife, Mary A. Taylor, for life, and after her death to Ella F. Davis; the residue of his personal estate he gave to his widow absolutely, providing that, if she should leave any of it undisposed of at her death, his executors were to sell such remnant, together with specified real estate, situate on the corner of Taylor and Mercer streets, in Trenton, and divide the proceeds equally between Ella F. Davis, Sarah M. Price, Mary E. Sevars, and the children of Joseph Lawton, to wit, William F. Lawton, Mary A. T. Lawton, Ella F. T. Lawton, and Thomas T. Lawton; that said will was admitted to probate October 31, 1887, and on the same date an order to limit the time within which creditors were to present their claims to the executors was made; that on the 13th of August, 1888, the orphans' court of Mercer county made its decree barring creditors who had not presented their claims; that on the 30th of July, 1888, an inventory of the estate was filed, exhibiting its value to be $63,681.50; that on the 28th of September, 1888, the executors filed an account, final so far as the indebtedness of the estate presented to them was concerned, in which they charged themselves $64,544, and asked allowance for $3,144.40 disbursements, exhibiting a balance of $61,391.60 in their hands; that such account was allowed by decree of the orphans' court on October 22, 1888; that Isaac Davis, one of the executors, died on the 27th of August, 1891; that Ella F. Davis died intestate, without husband or children, her father, John Sevars, being her next of kin, on the 25th of April, 1892; that Mary A. Taylor died on the 2d of May, 1892; that the executors paid to Mary A. Taylor "the property, or some part thereof," which was bequeathed to her for life, and also "the personal property, or some

part thereof," which was bequeathed to her absolutely, and failed to take from her a refunding bond; that Mary A. Taylor, at her death, left a large amount of that part of the estate which was left to her absolutely, undisposed of; that on the 18th of May, 1892, nearly four years after the decree barring creditors, the complainants presented their claim to James Sevars and George Price, the surviving executors; that on the 7th day of May, 1892, John Sevars, the father of Ella F. Davis, was duly granted letters of administration of the estate of Ella F. Davis; that the executors of the will of James Taylor have not taken possession of that part of Mr. Taylor's estate which was left to his wife absolutely, and was undisposed of by her during her life, and such part of the estate is being wasted; that the property left to Mary A. Taylor for life consisted of the household furniture of James Taylor; that John Sevars has taken possession of it, as administrator of the estate of Ella F. Davis, and is using it; that the executors of James Taylor's will, intending to cheat and defraud the complainants, and to neglect and violate their duty, permitted John Sevars to take and use that property; that James Sevars, George Price, and John Sevars are pecuniarily irresponsible; that the complainants fear that John Sevars will sell the furniture, or destroy or damage it, and that the executors of James Taylor will lose or waste the estate; that no legacies, except that to Mary A. Taylor, have been paid, and no refunding bonds have been taken.

Upon this allegation of facts, the complainants pray: (1) That James Sevars and George Price, surviving executors, may be restrained by injunction (a) from disposing of assets of the estate of James Taylor; and (b) from exercising the duties of their office. (2) That John Sevars may be restrained from using in his household, and from selling or disposing of, the property mentioned as being in his hands, and belonging to the estate of James Taylor. (3) That John Sevars may account for the value of said property in his hands which belongs to the estate of James Taylor, and the depreciation in value of it by his use. (4) That he may be decreed to deliver it up. (5) That an account of the transactions and dealings of the executors with respect to the assets of the estate may be taken, in which the executors shall be charged, because of their neglect to take a refunding bond, with the value of the property given to Mary A. Taylor absolutely and for life. (6) That the land on the corner of Taylor and Mercer streets, in the city of Trenton, be sold under the direction of this court, and that the proceeds of sale be applied to pay the complainants' claim. (7) That the surviving executors may be removed from office. (8) That a receiver may be appointed to take possession of the assets of the estate of James Taylor, deceased. (9) That the complainants' claim may be declared to be a charge on the assets of that estate. (10) That the complainants

may be paid from those assets. (11) That the defendants or some of them may be compelled to pay the complainants' debt. (12) That the complainants may have further relief, if equitable.

The surviving executors; John Sevars, individually and as administrator of Ella F. Davis; Mary E. Sevars, Sarah M. Price, William F. T. Lawton, Mary A. T. Lawton, Ella F. T. Lawton, and Thomas T. Lawton, legatees,are made the defendants. To the bill, John Sevars, in his own right and as administrator of Ella F. Davis, by his demurrer, and James Sevars and George Price, surviving executors of the will of James Taylor, deceased, by their joint demurrer, and Mary E. Sevars, Sarah M. Price, and William F. T. Lawton, legatees, by their joint demurrer, demur upon two general grounds: First, want of equity; and, second, because the bill is multifarious. For the remaining defendants, who are infants, the clerk of the court, as their guardian ad litem, has filed a formal answer.

John H. Backes, for complainants. William M. Lanning, for defeadant John Sevars. G. D. W. Vroom, for defendants James Sevars and George Price, surviving executors, etc., and Mary E. Sevars, Sarah M. Price, and William F. T. Lawton, legatees.

MCGILL, Ch. (after stating the facts). The object of the complainants' bill is to secure payment of their claim by charging it, as far as may be, upon the assets of the estate of James Taylor which remain in the hands of the executors, or are within their reach. The executors have obtained a decree from the orphans' court which bars the demands of creditors against them, and are protected by that decree from the complainants' recovery in this action, except as to legacies in their hands which have not been paid over. Revision, p. 764, § 62; Id. p. 765, § 66. Their failure to file refunding bonds is presumptive evidence that the assets have not been paid by them to legatees. Id. p. 765, § 68.

The bill alleges that no refunding bond has been filed, and the complainants rely upon the presumption which arises from that fact to charge the executors with having the entire estate yet in hand. On the part of On the part of the executors, it is urged that the bill admits, to some extent, that the estate has been paid over to legatees. But the difficulty in this contention is that it does not appear what that partial extent is. The admission of payment over is indefinite. The allegations are that the property which was bequeathed to Mrs. Taylor for life, "or some part of it," and also that which was bequeathed to her absolutely, "or some part thereof," was paid over to her; and further that she left a large amount of the property which was bequeathed to her absolutely, undisposed of at her death, the exact amount being unknown to the complainants, which the executors of James Taylor have negligently failed to col

lect, and take into their custody; and also that the property which was bequeathed to Mrs. Taylor for life, with remainder over to Ella F. Davis, consisted of the household furniture in her husband's residence, which she used during her life, and that the executors have neglected to take that property into their custody, and, on the contrary, have suffered John Sevars, the father of Ella F. Davis, and administrator of her estate, to take it into his possession. Thus, the bill impliedly admits the paying over, the implication being that all the estate went to Mrs. Taylor, except possibly some portion of that which was bequeathed to her absolutely, and the real estate on the corner of Taylor and Mercer streets, which at her death was to be sold by the executors. But the admission is indirect, uncertain, and inquisitive in character, and until the discovery of particulars be had, through the defendants' answers, it should not be allowed to defeat or injuriously affect the complainants' suit, and besides it does not go to a complete payment over, and therefore that which is not admitted to have been paid over is subject to the presumption stated.

A more serious defect, I think, is in the bill's assumption that the executors of James Taylor are bound, in duty, to recover possession of the property bequeathed, both for life and absolutely, to Mrs. Taylor, and paid over to her, for the purpose of distributing it to the estate of Ella F. Davis and Sarah M. Price and others, referred to in the will, respectively, or for any other purpose. Having delivered over the life legacy, in due course, taking a proper receipt or inventory to the remainder-man, as must be presumed, -no suggestion being made to the contrary,the executors were discharged from any further duty or liability with reference to it. Thereafter, it became the care of the person who was to take in remainder to see that the corpus thus delivered was not consumed or wasted. 1 Rop. Leg. 316; Lynde v. Estabrook, 7 Allen, 68, 72; Hunter v. Green, 22 Ala. 329; Weeks v. Jewett, 45 N. H. 540; Rowe's Ex'rs v. White, 16 N. J. Eq. 411, 416. They might have required security for the benefit of the remainder-man, but were not required to do so. Revision, p. 582, § 8; In re Ryerson, 26 N. J. Eq. 43.

The bill stated that the remaining personalty was bequeathed absolutely to Mrs. Taylor, with the proviso added that if she should die intestate, leaving any part of it undis posed of, then his executors were to convert it into money, and distribute it. This statement of the will shows an absolute gift, for an indefinite time, with unlimited power of alienation. Such a gift is construed to carry to its recipient absolute ownership, and a gift of that which remains undisposed of, over, is held to be void. McClellan v. Larchar, 45 N. J. Eq. 17, 16 Atl. 269; Rodenfels v. Schumann, 45 N. J. Eq. 383, 17 Atl. 688; Wilson v. Wilson, 46 N. J. Eq. 324, 19

Atl. 132. Thus, a large portion of the estate appears, by the bill, to be without the possession or reach of the executors. Yet the bill shows that some part of the estate has not been delivered to Mrs. Taylor, and it seeks the discovery of and accounting for that part, as well as for the other. It also seeks to subject real estate which the will orders now to be converted into money by the executors, and distributed to legatees, to the payment of its proper proportion of the complainants' claim. It alleges that the executors of James Taylor are insolvent, and intent on preventing recovery by the complainants; and it consequently seeks to restrain their disposition of the estate, and to have it reduced to moneys, through the instrumentality of this court, and applied to the payment of the complainants' claim. I regard it to be fully established that such a suit is within the jurisdiction of this court, even though the complainants' claim may not be established at law. 1 Story, Eq. Jur. 546; Frey v. Demarest, 16 N. J. Eq. 236, 239; Kennedy v. Creswell, 101 U. S. 641; 2 Williams, Ex'rs, 1718, 1719; Thompson v. Brown, 4 Johns. Ch. 619, 631.

It is observed that the defendants are the surviving executors of James Taylor; John Sevars, individually and as administrator of the estate of Ella F. Davis; Sarah M. Price, Mary E. Sevars, and the children of Joseph Lawton. The surviving executors of James Taylor are made parties, so that an account may be had of their dealings with the assets of their testator's estate; the assets with which they are chargeable may be had from them; they may be restrained from further acting as executors, and may be removed from office. Sarah M. Price, Mary E. Sevars, the children of Joseph Lawton, and John Sevars, as administrator of the estate of Ella F. Davis, are made parties because they are each entitled to some share in the proceeds of the real estate to be converted into cash, which is sought to be charged with a proportional payment of the complainants' claim, and are concerned that the executors shall be fully charged for assets which came to their hands, or should have been collected, and shall not be unduly credited, for, as the balance which was available for legacies may be increased, the proportional charge, in this suit, against the legacies that have not been paid over, will be decreased. John Sevars, individually, and also as administrator, is further made a party because he is alleged to have in his possession part of the assets which were paid over to Mrs. Taylor. It is thus perceived that all the defendants, except John Sevars, individually, are interested in the proposed accounting of the executors, and the proposed disposition by this court of the assets not paid, in the place of the executors; and it follows that they are also interested in the incidental restraint of action by the executors, the removal of the executors

from office, if that be possible by this court (Leddel's Ex'r v. Starr, 19 N. J. Eq. 159), and the appointment of a receiver of the assets. All the defendants are interested in the prayer that they, or some of them, may be compelled to pay the complainants' claim. But John Sevars, individually, is not interested or concerned either in the proposed accounting of the surviving executors, or in the court's assumption of their duties, and the incidental restraint of their action, or in the removal of the executors, or in the appointment of a receiver of the assets of the estate. He is interested only in the accounting which is sought to be had from him for the property which he had from Mrs. Taylor, which, as has been seen, was paid over to her, and either belonged to her absolutely, or was to go from her directly to the taker in remainder, concerning which the executors have no duty to perform, and which is not within their reach, and in the prayer that the defendants, or some of them, may be decreed to pay the complainants' claim. As the complainants can only recover from him assets which are held by him for the executors, or which the executors may recover from him, and it does not appear that he has assets of that character, the complainants do not show any equity against him for the recovery of any portion of their claim. Hence, the bill fails to show any equity against him individually. The remaining defendants, including John Sevars as administrator, are proper, if not necessary, parties to the suit.

Upon the question whether the bill is multifarious, the statement already made of the interests of the several parties shows that, with the exception of John Sevars in his individual capacity, they are all interested in all material parts of the relief sought. The determination already reached, that the bill fails to make a case against John Sevars, individually, precludes the necessity of considering whether the bill is multifarious as to him. As to the others, it is not multifarious as to him. As to the others, it is not multifarious. The demurrers will be overruled, except so far as John Sevars, individually, is concerned; and as to him, in that capacity, his demurrer will be allowed.

STATE (POLHAMUS, Prosecutor) v. STATE. (Supreme Court of New Jersey. Nov. 8, 1894.) ILLEGAL DREDGING OF OYSTER BEDS-INDICTMENT -SUFFICIENCY-CONSTRUCTION OF STATute.

1. Where a party is indicted for dredging upon an oyster bed duly staked up within the waters of this state, belonging to any other person, without the permission of such owner, and the title of the act under which the indictment is found is limited to the better enforcement in Maurice River Cove and Delaware Bay of an act entitled "An act for the preservation of unless it is limited to an oyster bed duly staked clams and oysters," the indictment is defective, up either in Maurice River Cove or Delaware

Bay, and the indictment, not being thus limited, but alleging simply a dredging in an oyster bed duly staked up within the waters of the state, is defective, and should be quashed; the indictment merely charging a statutory offense, unknown to the common law, and failing to clearly state the essential fact that the violation of the statute was in Maurice River Cove or Delaware Bay.

2. The title of a statute is not only an indication of the legislative intent, but is also a limitation upon the enacting part of the law.

(Syllabus by the Court.)

Certiorari to court of quarter sessions, Cumberland county; Hoagland and Hendee, Judges.

Zebulon Polhamus was indicted for a violation of the statutes relating to the preservation of clams and oysters in Maurice River Cove and Delaware Bay, and he prosecutes a writ of certiorari to the court of quarter sessions. Indictment quashed.

Argued at the June term, 1894, before DIXON, REED, and ABBETT, JJ.

Walter H. Bacon and D. J. Pancoast, for prosecutor. William A. Logue and William E. Potter, for respondent.

ABBETT, J. The writ of certiorari in this case brings up for review an indictment returned to the court of general quarter sessions of the peace for the county of Cumberland. This indictment presents "that Zebudon Polhamus, late of the township of Downe, In the county of Cumberland, on the 12th day of April, in the year of our Lord one thousand eight hundred and ninety-four, in the township of Downe, in the county of Cumberland aforesaid, and within the jurisdiction of this court, did dredge upon, and throw or cast his oyster dredge or oyster dredges for the purpose of catching oysters upon, a certain oyster bed duly staked up within the waters of this state, belonging to Luther Bateman, without the permission of said Luther Bateman, the owner thereof, contrary to the form of the statute," etc. This indictment was found under color of a statute entitled "A further supplement to an act entitled 'An act for the better enforcement in Maurice River Cove and Delaware Bay of the act entitled "An act for the preservation of clams and oysters" approved April fourteenth, eighteen hundred and forty-six, and of the supplements thereto,' which said act was approved March 21st, 1871 (Revision, p. 140), and this further supplement was approved March 8th, 1882" (P. L. 1882, p. 55, and Supp. Revision, p. 116). The indictment was found under section 10 of this supple ment of March 8, 1882, which directs "that any person who shall hereafter dredge upon, or throw or cast his oyster dredge, or any other instrument, for the purpose of catching oysters upon any oyster bed duly staked up within the waters of the state belonging to any other person, without the permission of such owner, shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by a fine not exceeding two hundred v.30A.no.9-31

dollars, or by imprisonment for any term not exceeding one year, or both."

The indictment in question is defective, be cause it does not set forth the requisite facts to show that a misdemeanor was committed by the party indicted. In charging a statutory crime, unknown to the common law, every essential fact must be clearly stated. Where the indictment is silent on a material fact, no presumption against the defendant will aid it. Presumptively, all that the grand jury heard and found is in the indictment, and if, as it stands, all that is in it may be true, and still the defendant be innocent, he cannot be called to trial upon it, according to law. See State v. Malloy, 34 N. J. Law, 413; Zabriskie v. State, 43 N. J. Law, 640; State v. Smith, 46 N. J. Law, 491. The supreme court, in State v. Post, 55 N. J. Law, 267, 26 Atl. 683, held that an indictment was defective because it failed to allege that the grounds upon which the defendant was charged with having taken oysters were grounds used or occupied by citizens of this state; the offense being purely statutory, and the statute having made the citizenship of the occupant an essential ingredient of the offense. In the indictment under consideration, it fails to allege that the oyster bed named in the indictment was in Maurice Riv. er Cove or Delaware Bay. If this act be held constitutional,-about which the court expresses no opinion,-it can only be on the ground that the general language contained in the second section is to be construed as limited to Maurice River Cove and Delaware Bay. Justice Depue, in delivering the opinion, in the court of errors and appeals, in the case of Hendrickson v. Fries, 45 N. J. Law, 563, says: "Under the provision of our constitution, the title of a statute is not only an indication of the legislative intent, but is also a limitation upon the enacting part of the law. It can have no effect with respect to any object that is not expressed in the title." The supreme court, in Dobbins v. Northampton Tp., 50 N. J. Law, 499, 14 Atl. 587, says: "The enacting part of a statute, however clearly expressed, can have no effect beyond the object expressed in the title. To maintain any part of such a statute, those portions not embraced within the purview of the title must be exscinded, and if the superaddition to the declared object cannot be separated and rejected the entire act must fail." In that case the court said: "To maintain this act in any particular, it must be construed as a law applicable only to such townships as do not contain any incorporated city or borough wholly or in part within the township limits." The indictment charges that Polhamus dredged upon a certain bed, duly staked up, within the waters of this state, without the permission of said Luther Bateman, the owner. As the act cannot stand, except as limited to Maurice River Cove and Delaware Bay, all that is alleged in the indictment might be proved, and yet

HYSONG et al. v. SCHOOL DIST. OF GALLITZIN BOROUGH et al.

(Supreme Court of Pennsylvania. Nov. 12, 1894.) SCHOOLS-EMPLOYMENT OF ROMAN CATHOLIC SISTERHOOD AS TEACHERS.

1. The employment in the common schools, by the school directors, of nuns of the Sisterhood of St. Joseph (a religious society of the Roman Catholic Church), in the absence of proof of religious sectarian teaching or exer cises, is purely an exercise of discretion of such board, is lawful, and cannot be reviewed by this court.

2. The wearing of the garb and the insignia of such sisterhood by the nuns, while teaching in the public schools, cannot be termed "sectarian teaching," and is not unlawful. Williams, J., dissenting.

Appeal from court of common pleas, Cambria county.

Bill in equity by John Hysong and others against the school district of Gallitzin Borough and others to restrain the school directors from permitting sectarian teaching in the common schools, and from employing as teachers sisters of the Order of St. Joseph, a religious society of the Roman Catholic Church. preliminary injunction was granted. From a decree dissolving such injunction, plaintiffs appeal. Affirmed.

Following are the principal assignments of error: "(2) The court erred in limiting plaintiffs' complaints, as matter of law. to the one question of misuse of school funds and school property, and to undoubted sectarian religious instruction, admittedly and openly indulged in, and excluding the questions of free and equal enjoyment of the public-school system, without even the appearance of anything objectionable to the conscience of any, and without any compulsory maintenance or preference of any religious establishment or mode of worship. *** (4) The court erred in finding that the action of the defendant school directors, in the exclusive and preferring employment of sisters in such maner as to give control of the public schools and divert public school funds to maintenance and support of the sectarian order and church to which said sisters and directors belong, could not be enjoined. *** (6) The court erred in finding that certificates, contracts, reports, and performance of school duties in sectarian religious names and character by sisters could not be enjoined. (7) The court erred in finding that the sisters were not so disqualified and incapacitated by their sectarian consecration, vows, and

tion against their employment as teachers in the public schools. (8) The court erred in finding that the employment of the Sisters of St. Joseph as teachers in the public schools, and their acting as such while wearing the distinctive sectarian habit, crucifixes, and rosaries of their order and sect, could not be enjoined. (9) The court erred in finding that the permission and use of the sectarian religious titles or addresses 'sister' and 'father' could not be enjoined. *** (12) The court erred in refusing to restrain the future employment of six sisters or nuns as teachers in the public schools under illegal certificates and in their religious relations, and who were selected and designated by the mother superior of the Order of St. Joseph, which received the benefit of school funds paid to them. (13) The court erred in refusing to restrain the employing, permitting, and acting, as teachers in the public schools, nuns or sisters, who are required by their obligations to their church to wear garbs, including crucifix or crucifixes, which mean and teach the 'Catholic Church,' and rosaries meaning and teaching the prayers of the fif teen mysteries in the Roman Catholic Church. (14) The learned court erred in refusing to restrain the allowance of use of religious sectarian names in the public schools, and the permission of the pupils to customarily and usually address the religious sectarian teachers as 'sisters,' and their visiting and overseeing priest of the same sect as 'father,' on the ground of there being no rule of the school requiring pupils to do so. (15) The court erred in refusing to restrain the employment, permission, and acting of nuns or sisters as teachers in the public schools in nonsectarian schools, and in names, garbs, and insignia objectionable to to Protestant plaintiffs, so as to compel Protestant children of plaintiffs and others to attend schools so taught by nuns or sisters, or do without education, for conscience sake."

T. H. Baird Patterson, A. D. Wilkin, and H. W. Storey, for appellants. David L. Krebbs, F. J. O'Connor, and Kittell & Little, for appellees.

DEAN, J. This bill was filed to restrain the school directors of Gallitzin borough from permitting sectarian teaching in the common schools of the borough, and from employing as teachers sisters or members of the Order of St. Joseph, a religious society of the Roman Catholic Church. What seem to us the most material averments of the bill were denied in the answer. The employment however, of the members of this society, was admitted. The court, after full hearing, found as a fact, "There was no evidence of any religious instruction or religious exercises of any character whatever during school hours." But the court further found that after school hours the school