as to whether he was serving as architect on one of the buildings mentioned in the affidavit, he had prevaricated, saying that he had only furnished tracing for the persons engaged in the work, and was not connected with the job in any other way, the Board was justified, in the exercise of its discretion, in refusing to believe his sworn affidavit, and as a result in denying his application. But, as it already appears, the Board did not put its rejection of the application upon this ground. If it had, the facts being undisputed, there is nothing to warrant such a conclusion.

It has also been urged that this court cannot look into the facts without first ruling the Board to certify the facts and the ground of their action. Whether the proceedings under review emanate from a tribunal that is a special statutory one in the sense of the supplement to the certiorari act of 1895 (1 Gen. St. p. 370), giving the court the power to determine disputed questions of fact as well as of law, it is not necessary to determine. The question is raised by the defendant Board, which had certified the examination of the applicant as a part of its record. And if the examination is not legally here it may be disregarded altogether, and then the prosecutor's right to his certificate upon his application and affidavit is entirely clear.

Another objection raised is that certiorari is not the proper remedy; that mandamus alone will lie. But the act itself provides in the twelfth section that the person whose certificate is refused shall have the right to appeal by certiorari to this court, which is therein authorized and empowered to review and correct the action of the State Board, and the latter is directed to forthwith carry out the judgment of the court.

The result is that the action of the Board is reversed, and an order will be made directing the certificate to be issued to the prosecutor.

(69 N. J. L. 36)

TEMPLE CO. v. PENN MUT. LIFE INS. CO.

(Supreme Court of New Jersey. Feb. 24, 1903.)

TROVER-DEMAND-FIXTURES.

1. When goods are left by the owner in a building lawfully in possession of the defendant, who did not remove, or do any act except to permit them to remain in the building, the owner of the goods cannot maintain an action of trover without first making demand, and being met with a refusal by the defendant to deliver.

2. In determining whether the goods are fixtures and part of the real estate, the rule declared in Feder v. Van Winkle, 33 Atl. 399, 53 N. J. Eq. 370, 51 Am. St. Rep. 628, applies. (Syllabus by the Court.)

Action by the Temple Company, to the use Smith, against the Penn Mutual Life In

surance Company. Verdict for plaintiff. On rule to show cause. Rule made absolute. Argued November term, 1902, before the CHIEF JUSTICE, and VAN SYCKEL, FORT, and PITNEY, JJ.

H. A. Drake, for plaintiff. D. J. Pancoast, for defendant.

VAN SYCKEL, J. This is an action of trover to recover the value of what is alleged to be personal property in the Temple Theater. The defendant held a real estate mortgage on the theater, under the foreclosure of which it purchased the theater, and claims certain articles for which this action is brought as part of the real estate. The verdict was rendered for plaintiff for $8,621.05. The plaintiff claims title under a subsequent mortgage, which was both a real estate and chattel mortgage. At the sheriff's sale under the mortgage to the defendant, the plaintiff gave notice that the property in question in this suit was personal property, and that it would not pass by the sale, but was subject only to the lien of the said second mortgage. There was no other notice served upon the defendant, nor demand made before this action of trover was instituted. The goods were left in the theater, which was lawfully in possession of the defendant, who did not remove the goods, or do any act except to permit them to remain where they were when mortgaged to the plaintiff, and when the sale was made under the chattel mortgage which is the basis of the alleged title.

The gist of the action of trover is wrongful conversion by the defendant, without proof of which the action will not lie. Wykoff v. Stevenson, 46 N. J. Law, 326; Bigelow Co. v. Heintze, 53 N. J. Law, 69, 21 Atl. 109. The defendant being lawfully in possession of the property, that possession could not become tortious until it had refused upon demand made to deliver them to plaintiff, in the absence of any evidence to show a removal of the goods by the defendant, or destruction of them. For this reason the plaintiff was not entitled to recover.

It is apparent, also, that the plaintiff recovered the value of some articles which were part of the real estate and passed to the defendant by the sale under its mortgage. In Feder v. Van Winkle, 53 N. J. Eq. 370, 33 Atl. 399, 51 Am. St. Rep. 628, our court of last resort pronounced the rule which distinguishes between chattels which become part of the realty and those which retain the character of personalty to be as follows: "There must be actual annexation, with an intention to make a permanent accession to the freehold, but it is not necessary that there be an intention to make the annexation perpetual. The intention must exist to incorporate the chattels with the real estate for the uses to which the real estate is appropriated, and there must be the presence of such facts and circumstances as do not lead to, but repel,

the inference that it is intended to be a temporary annexation." The building was erected and used as a theater, and whatever was incorporated with the building to fit it for use as a theater became part of the realty. As in the case of Feder v. Van Winkle, a number of the valuable chattels in this case, such as the range, the dynamos for lighting, the engines, the permanent seats, and other things were actually annexed to the freehold, fitted for and applied to the use to which the real estate was appropriated, all being necessary to the prosecution of a common purpose, and adapted to permanent use as part of the structure. A heater and range are fixtures, although but slightly attached to the building, if put in by the owner of the premises with the intention of making them such. Erdman v. Moore, 58 N. J. Law, 445, 33 Atl. 958. Applying this rule to the case, the verdict was against the weight of evidence.

The rule to show cause should be made absolute.

(64 N. J. E. 322)

In re WILCOX.

(Prerogative Court of New Jersey. Jan. 27,

1903.)

WILLS-CONSTRUCTION-BENEFICIARIESDISTRIBUTION.

1. A testator, by his will, devised and bequeathed to six of his children, by name, all the residue of his estate, expressly excluding one child, who had been previously provided for, and also provided that the portion of any child dying under 21 years of age should be divided among the survivors. A child was born to testator afterwards, and there was no provision in the will disinheriting an after-born child, The executors of the will paid to the guardian of one of the children his share of the residuum. The ward died while under age, and without issue. The guardian, having settled his account in the Orphans' Court, was directed by that court to pay the amount remaining in his hands to seven of testator's children, including among them the child excluded by the provisions of the residuary clause, and the after-born child. The appeal from the order of distribution did not question the jurisdiction of the Orphans' Court to make the order, but only claimed that it was erroneous in including in its terms the excluded child and the after-born child. Held:

(1) That the order cannot be supported on the ground that the distributees were the heirs at law and next of kin of the deceased infant, because, by the residuary clause, the interest of the infant, who died an infant and without issue, was thereby divested. and became vested in the survivors of the children therein named. (2) That the order was erroneous in including the child who had been excluded by the residuary disposition, on the ground that she was not, on a proper construction of that clause, one of the survivors intended by testator.

(3) That the order was also erroneous in including the after-born child, on the ground that it must be presumed that she received her share of the testator's estate under the statute, before the executors distributed and paid over the shares of the other children.

(Syllabus by the Court.)

Appeal from Orphans' Court, Passaic County.

In the matter of the accounting of Albert

A. Wilcox, guardian of James Robertson, a minor, deceased. From an order of distribution, the guardian of the deceased minor, the executors, and certain other heirs appeal. Reversed.

The fifth item of the will of John Robertson, dated October 22, 1891, was expressed in these words: "Fifth. All the rest, residue and remainder of my estate, whether real or personal and wheresoever situate, I give, devise and bequeath in equal portions, share and share alike to my children Matilda Robertson, Annie Robertson, James Robertson, John Robertson, Clarence Robertson and Leonard Robertson (my daughter Mame Brickman, wife of Frederick Brickman, having been provided for during my lifetime, it is my will that she shall not have any further portion of my estate) to have and to hold to them, their heirs and assigns forever, the share or portion of any deceased child or children dying without issue under twenty one years of age to be divided equally among the survivors, and the issue of any deceased child or children to take his, her or their parents share whether said parent or parents shall have arrived at the age of twenty one years or not."

James G. Blauvelt, for appellants. Francis Scott, for respondents Matilda Miller and Annie Hawkins. Wood McKee, for respondents Mame Brickman and Sarah Robertson.

MAGIE, Ordinary. The appeal in this cause is from an order of distribution made on the 20th day of December, 1901, by the Orphans' Court of Passaic county. The order recited that the account of Albert A. Wilcox, as guardian of James Robertson, a minor, deceased, had been passed and allowed by that court, June 28, 1900, and it directed that the balance in the hands of the guardian, appearing by that account (after payment of costs and certain counsel fees). should be distributed in equal sums to the minor's half-sister Mame Brickman, his sisters Matilda Miller and Annie Hawkins, and his half brothers and sister Clarence Robertson, Leonard Robertson, John Robertson, and Sarah Robertson, one-seventh to each. The appellants are Wilcox, the guardian of the deceased minor, James Robertson; John Robertson, Clarence Robertson, and Leonard Robertson, three infants who appeared by said Wilcox as their guardian; and James A. Graham and Emmons Fullerton, who are surviving executors of John Robertson, deceased.

The appellants have not contested the jurisdiction of the Orphans' Court to make the order of distribution in question. They only claim that the order was erroneous in including among those entitled to distribution Mame Brickman and Sarah Robertson, who is also called Sarah J. Fullerton. The petition of appeal asserts that the fund in question should be divided between Matilda Mil

ler, Annie Hawkins, Clarence Robertson, Leonard Robertson, and John Robertson, onefifth to each. The order of distribution cannot be sustained on the theory upon which the Orphans' Court seems to have put it. The order declares that the parties to whom distribution is directed therein take the fund as heirs at law and next of kin of the intestate minor. Moneys in the hands of a guardian of a minor at his death do not pass to the heirs at law or next of kin, but to the representative of the minor. As the minor is incapable of making a valid testamentary disposition, the representative is necessarily an administrator. To him the guardian may safely pay the funds in his hands. After administration, what remains may then be distributed to those to whom the fund goes.

The order cannot be supported in its entirety unless the interest of James Robertson under the will was either not vested in him, or was, although originally vested, afterwards divested by the admitted fact that he died before he attained the age of 21 years, and without issue. That the provisions in the fifth item of the will, set forth in the prefatory statement, when properly construed, vested in James the share of the residue thereby disposed, will not support the order, if, by a consideration of the whole of those provisions, he was afterward divested of his interest upon the happening of the contingency specified. The consideration of the language of the fifth item of the will leads me to the conclusion that the share allotted thereby to James became vested in him upon the death of the testator; but I think it equally clear that the testator intended that upon the death of any of the children to whom a share was given by that item, occurring under the age of twenty-one years and without issue, the share would be otherwise disposed of. Upon the happening of the double contingency-death without issue and under 21 years of age the share was thereby divested in favor of such other of the children named in that item as fell within the description of survivors. The case is within the well-settled doctrines of our own cases. Nevison v. Taylor, 8 N. J. Law, 43; Van Houten's Ex'rs v. Pennington, 8 N. J. Eq. 745; Crane v. Bolles, 49 N. J. Eq. 373, 24 Atl. 237.

Nor is there any ground for the contention that the limitation over was restricted by the contingency of death without issue under 21 years, before the death of the testator. At the execution of the will, James and other of the children were infants. He was making a testamentary disposition in contemplation of his death. It must have been within his contemplation that his infant children might not attain the age of 21 years before he died. The period fixed must therefore be the attaining of that age, whenever that might happen. Van Houten v. Pennington, ubi supra. This construction is strengthened and made conspicuously clear by the last clause of the

item in question. The construction of that clause, in all its possible applications, is not drawn in question; but it plainly evinces the intention of the testator that in the event of the death of any child under 21 years of age, leaving issue, such issue should become immediately vested with its parent's share, thus providing for the happening of one event of the double contingency previously dealt with. It results that, on the death of James, the share passed by the will of his father, and the question is to whom it passed.

The sole contest raised by the appellants is to the right of Mame Brickman and Sarah J. Fullerton to any portion of the share. The case discloses that Sarah J. Fullerton was a daughter of the testator, born to him after the execution of his will. At that time the testator had children. An examination of the will shows that it contains no provisions for the disinheriting of after-born children. If there was no settlement upon such after-born child, she became entitled to such portion of the parent's estate as she would have been entitled to if the parent had died intestate. 3 Gen. St. p. 3760, § 19. The contribution required from devisees and legatees to make up the interest of such afterborn child does not disturb the provisions of the will in other respects. Wilson v. Fritts, 32 N. J. Eq. 59; Van Wickle v. Van Wickle, 59 N. J. Eq. 317, 44 Atl. 877. The case does not disclose how, or to what extent, Sarah J. Fullerton, the after-born child of John Robertson, has acquired the interest in her father's estate which devolved upon her under the act. But it is clear that she cannot enforce any claim upon the estate of the deceased infant, in the accounting by Wilcox as guardian. It must be presumed that the fund the executors paid to the guardian represented James' share of the estate of his father, after the after-born child had been provided for under the law. They could administer and pay over no more, for the will did not operate upon any of the estate of testator except what was left after satisfying the claims of the after-born child as heir at law and next of kin. The order was clearly erroneous in including Sarah J. Fullerton as entitled to one portion of the fund in question.

The further contention is that the order was erroneous in including Mame Brickman as entitled to a portion of the fund. On her part it is argued that, as she is named in the fifth item of John Robertson's will, although no share is thereby given to her, the word "survivor" used by testator to express those to whom a share, the title to which became divested by the contingent limitation, should go, includes her. But I cannot assent to this contention. The provision is designed to dispose of a share previously bequeathed and devised. It cannot be construed to relate to the property which testator states he had previously given to Mame Brickman. The provision that, under

a certain contingency, the share should go to issue, clearly shows that the testator's purpose was to provide for the shares that are given by that item. There is no lan. guage in the item capable of applying to the portion of testator's estate which had been previously given to Mame Brickman, and the testator could not, if he desired, impose any condition upon the portion thus previously given. It results that the survivors intended are those to whom the shares were thereby given, and the order was erroneous in including Mame Brickman as a distributee.

No attention has been paid to the question whether a guardian can properly pay the share thus limited over to the parties to whom it is limited, directly, or whether the fund should first go to the executors of the testator and be distributed by them. No objection to a distribution by the guardian was made below, or has been made here. The surviving executors of the testator join in this appeal, which seems to indicate that they acquiesce in such order as was made, except in the particulars objected to by them, and it has been deemed to justify the consideration I have given to the matter upon the merits.

For the reasons above given, the order must be reversed.

(75 Conn. 545)

HEUBLEIN BROS. & CO. v. CITY OF NEW HAVEN.

(Supreme Court of Errors of Connecticut. March 4, 1903.)

CITIES-BOARD OF REGISTRATION-CONTRACTS FOR MEALS-VALIDITY.

1. The charter of New Haven, § 209 (13 Sp. Laws, p. 449), provides that the selectmen shall receive 50 cents an hour for time spent in the discharge of their duties, and that their necessary expenses and compensation shall be paid by the city. Held, that a contract by the selectinen, as the board of registration, with the keeper of a restaurant, for meals for the members of the board and its employés while it is in session, is not binding on the city; the duty imposed on the city by the statute being one toward the selectmen, and not toward a third party with whom they have incurred a debt as a part of their expenses.

Appeal from City Court of New Haven; James Bishop, Judge.

Action by Heublein Bros. and Co. against the city of New Haven to recover for meals furnished members of the board of registra

board employed four clerks and the two registrars of voters of New Haven. During this time the plaintiffs, at the request of the board, and upon its order, furnished at their restaurant meals to the members of the board and to its clerks and the two registrars to the value of $226.10. The plaintiffs presented their bill to the city, and, payment being refused, this suit upon the common counts was brought to recover the price or value of the meals so furnished. The court below rendered judgment against the city for the above amount, with interest, and the city appeals.

Quite a number of questions are presented by the appeal, but, in the view we have taken of the case, it will not be necessary to consider most of them.

In the discussion of this case, we shall assume, without deciding, that, if the members of the board of registration had paid the bill here sued upon, the amount so paid could have been recovered by them from the city, under the charter, as a part of their necessary expenses.

The plaintiffs' right to sue the city is based upon the provisions contained in section 209 of the city charter (13 Sp. Laws, p. 449). The claim is that under these provisions the city is made liable to third persons, in cases like the present, for the necessary expenses of the members of the board. We think this claim is untenable.

The town and city governments of New Haven were practically consolidated under an act approved June 2, 1897 (12 Sp. Laws, p. 1108). By section 12 of that act it was provided that the powers and duties of the five selectmen of the town of New Haven should, after a certain date, "be limited to those powers vested in and those duties imposed upon them by the Constitution and laws of the state in relation to the admission of persons to the privileges of electors in said town, and to the erasure from the registry list of the names of those who have forfeited the privileges of electors." It further provided as follows: "Each of said selectmen shall receive fifty cents per hour for the time actually spent in the discharge of said duties, and their necessary expenses, and their compensation and expenses shall be paid by the city." The provisions of this act, having been accepted by the electors, were incorporated in the city charter as revised in 1899, and the two provisions above quoted appear in section 209 of said revised charter (13 Sp.

Leonard M. Daggett, for appellant. E. P. Arvine, for appellees.

TORRANCE, C. J. In the fall of 1900 the board of registration of New Haven held a ten-days session for the admission of electors. The board consisted of five selectmen and the town clerk. To assist in this work, the

above quoted that the plaintiffs' right to sue the city is based. We think it gives no such right. Section 209 is mainly concerned with the duties and compensation of the selectmen, and not at all with the board of regis tration, as a board. It provides that each selectman shall "receive" a certain fixed compensation and his "necessary expenses," and that both compensation and expenses shall be paid by the city, although the selectmen are

officers of the town. It clearly provides that the "compensation" to each selectman shall be paid to him by the city, and just as clearly, we think, does it provide that the "expenses" of each shall be paid by the.city to him, and not to a third party. We think the word "expenses," as here used, means something due from the city to the selectman for money paid him, or debt incurred by him, necessarily in the performance of his duty. The duty imposed upon the city by the provision in question is a duty towards the selectmen alone, and not a duty towards a third party with whom they may have incurred a debt as part of their necessary expenses. This being so, there is no privity between the city and the plaintiffs with reference to the indebtedness sought to be recovered in this action. Neither the selectmen, nor the board of registration, nor any member of it, by dealing with the plaintiffs as set out upon the record, could bind the city to the plaintiffs for the payment of that indebtedness; nor does the city charter anywhere impose upon the city any duty towards the plaintiffs as to this indebtedness.

For these reasons, we think the record shows that the plaintiffs have no cause of action against the city. In this view of the case, it is unnecessary to consider the other errors assigned.

There is error. The judgment below is set aside, and the cause remanded, to be proceeded with according to law. The other Judges concurred.

(75 Conn. 571)

HESSE v. MERIDEN, S. & C. TRAMWAY

CO.

(Supreme Court of Errors of Connecticut. March 4, 1903.)

STREET RAILROADS-NEGLIGENCE-INJURY TO

PASSENGER-CONTRIBUTORY NEGLIGENCEEVIDENCE-SUFFICIENCY - ADMISSIBILITY -DAMAGES-STATUTORY ALLOWANCE.

1. In an action for wrongful death of one killed by being struck by a trolley pole while riding on the running board of an open car, defendant claiming that before deceased was struck he had ridden for some distance, and was chargeable with knowledge of the proximity of the pole that struck him, it was proper to show that the poles passed prior to the accident were placed at a safe distance.

2. A street car being crowded so that there were no seats, a passenger rode on the running board; and as the car, running at a speed of 15 miles an hour, went upon a curve, he was jolted so that his head was thrown outward, and was struck by a trolley pole, inflicting injuries from which he died. The pole leaned toward the outside of the curve. Its distance from the body of the car, at the level of the floor thereof, was 25 inches, and at the height of the head of deceased, as he stood on the running board, 21 inches; and the running board was 81⁄2 inches wide, and the distance between its outside edge and the pole was 141⁄2 inches. Held, that the facts justified a conclusion that defendant was negligent in permitting a passenger to ride on the board while running at such speed past the point in question, with the pole so situated.

3. A street car being so crowded that there

3. See Carriers, vol. 9, Cent. Dig. § 1379.

were no vacant seats, a passenger rode on the outside running board, and as the car went upon a curve his head was thrown back so that it struck a trolley pole dangerously near the track. Held, that no contributory negligence was shown. 4. In an action for wrongful death, defendant made a claim of law "that, on the facts proven, no judgment could be rendered against defendant for greater than nominal damages.' Held, that the claim meant that there was not sufficient evidence bearing on the quantum of damages to warrant an award of the full statutory amount.

5. As a general rule, in an action for death there should be more evidence as to the quantum of damages than the mere fact that the injured party died at a certain age, to warrant an award of full statutory damages.

6. In an action for wrongful death, the evidence tended to show that deceased was a man of average size, and in good condition mentally and physically, and that he lived for some minutes after the accident, and suffered some pain; and a claim of law was that, on the facts, no judgment could be rendered for greater than nominal damages. Held, that it was not error to award the full statutory damages; it appearing that there was little or no contest as to the quantum of damages, and the attention of the court not having been called to the matter, save by a somewhat ambiguous claim of law.

Appeal from Superior Court, New Haven County; John M. Thayer, Judge.

Action by John Hesse, as administrator of the estate of Joseph J. Meyer, deceased, against the Meriden, Southington & Compounce Tramway Company. Judgment for plaintiff for substantial damages, and defendant appeals. Affirmed.

Marcus H. Holcomb, for appellant. Jacob P. Goodhart and Robert O. Stoddard, for appellee.

TORRANCE, C. J. Joseph J. Meyer, the plaintiff's intestate, while riding upon the footboard of one of the trolley cars of the defendant, came in contact with a trolley pole, and was so injured thereby that he died within a short time thereafter. In the suit brought to recover damages for said injury, the defendant suffered a default, and the case was heard in damages. The trial court rendered judgment in favor of the plaintiff for $5,000, and the defendant appealed.

The errors assigned relate to the action of the trial court (1) in refusing to amend the finding as requested; (2) in admitting certain evidence; (3) in holding that the defendant was guilty of negligence, and that the deceased was not guilty of contributory negligence; (4) in overruling certain claims of law; (5) in rendering judgment, upon the evidence in the case, for full damages. These claimed errors will be considered substantially in the order stated.

Upon a careful review of the evidence certified up, in connection with the defendant's claims to have the finding corrected, we are of opinion that the court did not err in refusing to do so. Most of the matters which the court below has refused to expunge from or add to the finding are matters about which there was some conflicting evidence, or are dependent upon the credit which the court