provided by the Acts of 1892, p. 202, and 1904, p. 290." The record does not show the passage of any resolution authorizing the issuance of the bonds for park purposes. They were authorized and directed by section 3 of the ordinance of May 26, 1904. The only resolution in the record is one authorizing the finance committee to sell at public auction the bonds ordered issued by ordinance at the meeting of the council on May 26, 1904. This resolution also authorized the sale of $125,000 of school bonds and $25,000 of fire bonds, as well as the $90,000 of park bonds. The resolution, however, in no way authorized the issuance of the bonds. It only authorized the sale of the bonds already authorized to be issued by ordinance. The act relied upon to sustain this reason is the act approved March 23, 1892 (P. L. 1892, p. 202). This act is unconstitutional, and hence would not have availed in this case had the issuance of the bonds been authorized by resolution. The act is entitled "An act respecting the expenditure of money in cities of the second class in this state." It reads as follows: "(1) That in all cities of the second class in this state no resolution or motion involving the expenditure of money adopted or passed by the board of aldermen or common council thereof, when the amount thereof exceeds the sum of fifty dollars, shall be operative, unless the same be approved by the mayor of such city: provided, however, that if the said mayor veto the same, or refuse or neglect to veto or approve the same within five days after the adoption of the same, the board of aldermen or common council of such city, after the expiration of said time, and by a vote of three fourths of all the members thereof, may order the payment of the money in such resolution or motion provided, notwithstanding such veto or refusal or neglect to veto or approve any such resolution or motion." Upon what theory this act can be sustained as a general act, I am at a loss to see. It relates to second-class cities only. There is no basis for the classification of cities of the second class in this act which furnishes a reason for applying this act to such cities as contradistinguished from all cities, or from cities of the first or third class. Why, in cities of the second class, a "resolution or motion involving the expenditure of money

when the amount exceeds fifty dollars" should not be operative without the approval of the mayor, while in other cities it might be, I am at a loss to see. This court held that an act conferring upon all cities having a population of not less than twenty-five thousand inhabitants the power to issue bonds to fund their floating debt was special under the constitutional amendment which forbids special laws "regulating the internal affairs of towns." Anderson v. Trenton, 42 N. J. Law, 486. In the case just cited Mr. Justice Dixon said: "I am unable to see any natural connection between the number of people in

a city and its right to fund its floating debt. It is true that there may be some propriety in denying this authority to every small municipality and granting it to larger ones; but the same may be said of almost every power so possessed by cities. And it is manifest that, if the classification made by a statute is to be justified or not, by considering whether it is proper to apply the peculiar provisions of the law to the particular individual or individuals designated to be affected, then laws will be upheld or overthrown, not as the courts shall decide them to be general or special, but as they shall deem them wise or unwise. No rule heretofore laid down in this state sanctions such a test of constitutionality, nor do I think that such a criterion should be adopted." Applying the same reasoning to the act of March 23, 1892, it must fall under the constitutional inhibition against special legislation. Article 4, § 7, par. 11. The following cases will be found in point upon the principle here enunciated: State v. Hammer, 42 N. J. Law, 435, 440; Rutgers v. New Brunswick, 42 N. J. Law, 51; Van Giesen v. Bloomfield, 47 N. J. Law, 442, 2 Atl. 249; Helfer v. Simon, 53 N. J. Law, 550, 22 Atl. 120; Grey v. Town of Union, 67 N. J. Law, 363, 51 Atl. 482; Lane v. Otis, 68 N. J. Law, 656, 54 Atl. 442. I am unable to find any act applicable to this question in the Laws of 1904 at page 290 as cited in the reason now under consideration. There is an act in the Laws of 1904 at page 283 relating to bonds for improving public parks, but it has no bearing upon the question before us. We conclude that a writ of peremptory mandamus should issue. No dispute exists as to any fact in the case, and therefore no occasion exists for the issuance of an alternative writ, the office of which is to determine disputed questions of fact. Cleveland v. Board of Finance, 38 N. J. Law, 259, 266; Hugg v. Camden, 39 N. J. Law, 620, 624; Kelly v. Mayor of Paterson, 35 N. J. Law, 196.

A peremptory writ of mandamus will is

sue.

(70 N. J. L. 672) TORREY et al. v. TORREY.

(Court of Errors and Appeals of New Jersey. Nov. 15, 1904.)

WILL-CONSTRUCTION-PROPERTY DEVISED.

1. In the will under consideration in this cause, the words, "all of this world's goods of which I may be possessed at the time of my death," included real estate.

(Syllabus by the Court.)

Error to Circuit Court, Camden County.

Action by James C. Torrey and others against Martha Torrey. Judgment for de fendant, and plaintiffs bring error. Affirmed.

Charles V. D. Joline, for plaintiffs in error Dean S. Renwick, for defendant in error.

DIXON, J. The question in this case is, did the following will devise the testator's real estate?

"I direct that all my just debts and funeral expenses be paid as soon as may be.

"I give and bequeath to my dear wife Martha Torrey all of this world's goods of which I may be possessed at the time of my death, confident that she will care for our dear children with the same love and devotion which she has ever shown them.

"I appoint my wife Martha Torrey the sole executrix of this my last will and testament."

The position taken for the negative is that the word "goods" cannot include realty. No doubt, that word, standing alone, is usually thus restricted; but it does not follow that the clause, "all of this world's goods of which I may be possessed at the time of my death," is subject to the same limitation. In using such an expression, one's mind is dwelling, not on any factitious distinctions among present possessions, but upon the distinction between the good things enjoyed in this world and those hoped for in the next. It is therefore quite credible that the testator by these words meant all that he had. Whether such was his meaning must be determined, not by giving the attention to single words, but by considering the entire will and the surroundings of the testator when he executed it, and by ascribing to him, so far as his language permits, the common impulses of our nature. In attempting to interpret any will, the first suggestion naturally arising is that the testator intended to dispose thereby of all his property. If such intention be imputed to this testator, then the gift to his wife should include his realty, for, outside of that gift and the payment of debts and funeral expenses, no disposition of property appears. Indeed, if this gift was not intended to include realty, the making of the will was hardly worth the trouble of writing it, for he then had, besides his real estate, only a few shares of stock in a building association and his household effects-not enough to pay his creditors when he died. The manifest purpose of the testator in disposing of his property may be, and here is, of much importance in arriving at his intention as to the extent of the gift. He gave "all of this world's goods" of which he might be possessed at his death to his "dear wife," "confident that she will care for our dear children with the same love and devotion which she has ever shown them." These words indicate very strongly his purpose to enable his wife, so far as lay in his power, to care for their dear children as her proven love and devotion toward them would prompt her to do. Such a purpose was futile if he placed in her hands only his little personal property, which at his death would be wholly absorbed by complying with his preceding direction that his debts

and funeral expenses should be at once paid.

But it is argued that these considerations are not sufficient to overcome a certain legal presumption against disinheriting the heir. That presumption originated in an artificial system which does not exist among us-a system designed to avoid the division of landed estates. So far as it accords with the natural impulse to provide for one's family and kindred, it still deserves weight. Thus far it favors our interpretation of this will, for evidently the testator was confident that his wife's care, impelled by her love and devotion, and furnished with effective means, would be more conducive to the welfare of their dear children, who were still young, than the mere fee simple of his land. We think the Camden circuit court rightly decided that the testator's real estate passed to his wife, and therefore its judgment should be affirmed.

(68 N. J. E. 345)

WAKER v. BOORAEMM. (Court of Chancery of New Jersey. Nov. 28, 1904.) EQUITY-DEMURRER-PARTIES-CONSTRUCTION OF WILL.

1. In a suit for the construction of the will of W., the great-grandfather of J., a demurrer to the nonjoinder of J. as a legatee under the will of his grandfather C. does not raise the question of his nonjoinder as a possible legatee under the will of W.

2. Where plaintiff's case as proved on the trial is defective for want of proper parties, the court may arrest the proceeding until the necessary persons are made parties.

3. A person who, by a possible construction of a will, may become a legatee thereunder, should be made a party to a bill for the construction of the will.

Bill for the construction of a will by James Waker against Theodore B. Booraem, surviving executor of Christian Jacob Waker, deceased. Heard on demurrer to bill.

George S. Silzer, for demurrant. James H. Van Cleef, opposed.

STEVENSON, V. C. Since the oral argument, I find upon examining the files that only two causes of demurrer are specified, viz., want of equity, and the failure to bring in as defendants the legatees named in the will of Christian J. Waker, who was a son of Christian Jacob Waker, above named. Both of these objections, I think, were practically disposed of at the argument.

At the conclusion of the oral argument, however, I stated to counsel that I should reserve the consideration of the question whether the great-grandson of the testator, the infant James J. Waker, was not a necessary party defendant as a possible legatee, in order that the defendant executor might be protected by the decree in paying out the fund in his hands. It appears, however, that no objection which raises this point is specified in the demurrer. It is true that the de

murrer objects to the nonjoinder of James J. Waker as a legatee under the will of his grandfather Christian J. Waker, deceased, but there is not the slightest hint that the nonjoinder of James J. Waker is objected to because of a possible claim that he may make to the fund under the will of his greatgrandfather Christian Jacob Waker, deceased. All the rights of all possible parties depend upon the correct construction of the will of the great-grandfather. The grandfather's will is not brought in question in any way. The grandfather's surviving executor is made defendant because he is in possession of, or is chargeable with, the fund in dispute, which his testator held in trust during his lifetime. If there is any possible basis for a claim that the fund is a part of the grandfather's estate, or that the grandfather's estate is not chargeable with it, for the benefit of the legatee under the great-grandfather's will, the well-settled rule is that in such case the grandfather's executor is the only necessary party to assert this claim and defend the estate against the enforcement of an unjust demand.

Counsel for the demurrant, however, insists that it appears on the face of the greatgrandfather's will that it is a debatable question whether the fund in dispute should go to James Waker, the complainant, or to the infant James J. Waker. In case the construction of the will insisted upon by the complainant should be adopted, it has not been argued that there would be room to question whether any issue of the complainant's deceased brothers and sisters, if there be such issue, would have a right to participate with the complainant in the fund recovered. The argument is that according as the words "child or children," as employed in the great-grandfather's will, may be adjudged to include or exclude a child of a deceased child, the title to the fund in dispute must be awarded either to the infant James J. Waker or to the complainant. This objection, however, not being in any way suggested in the specification of grounds of demurrer, cannot now be considered. Essex Paper Co. v. Greacen, 45 N. J. Eq. 504, 19 Atl. 466; Demarest v. Terhune, 62 N. J. Eq. 663, 666, 50 Atl. 664. The result is that the demurrer must be overruled.

It may be well, however, to point out that while rule 209 requires a specification of the grounds of demurrer, and in passing upon demurrers the court confines its attention to the grounds specified, these limitations are upon the rights of the demurrant only. They are limitations upon the right of the party defendant to object to the sufficiency, not of the case made out against him, but merely of the bill in which the complainant has endeavored to set forth his case. The defendant, by neglecting properly to object to the exhibition of the case against him in the bill of complaint, does not put equity into the complainant's case on the proofs, where

Van

otherwise there would be no equity. The complainant's case as proved may be defective because of his failure to bring the necessary parties before the court. In all cases the court has the right to arrest the proceedings until necessary parties are brought into the suit, where justice requires that such a course should be taken. Keuren v. McLaughlin, 21 N. J. Eq. 163. In this present case, assuming that James J. Waker, a grandchild of Christian J. Waker,' is living, it is quite possible that the complainant, if he does not amend his bill and make James J. Waker a party defendant, will encounter difficulty arising from action on the part of the court taken upon its own motion, of the kind to which I have referred. As the suit involves the construction of a will, the right of the complainant to recover being entirely dependent upon a clause in a will, one possible construction of which it is alleged will defeat the complainant's right to recover the fund and award the fund to the infant James J. Waker, the general rule to be applied would seem to be that both parties interested in the settlement of this question of construction should be made parties to the suit.

1. A plea in equity will be overruled where a certificate and affidavit that the plea is well founded and not interposed for delay are not attached thereto as required by Chancery Act, § 22 (P. L. 1902, p. 518).

2. Specific performance of a contract to convey land may be enforced in equity where the two defendants are able to convey a complete title according to contract, though neither could alone do so.

Bill for specific performance by Louis Resnick and others against William A. Campbell and another. Heard on pleas to the bill. Pleas overruled.

Hudspeth & Puster, for complainants. James F. Minturn, for defendants.

STEVENSON, V. C. The defendants have each filed a plea. I do not think that either plea is good. Both will be overruled.

1. Although the pleas will be dealt with according to their merits and without regard to formal objections, I think I should point out that neither plea has annexed to it the affidavit or the certificate of counsel prescribed by the statute. Each plea, therefore, is at least liable to "be treated as a nullity." Chancery Act, § 22 (P. L. 1902, p. 518).

2. Neither plea discloses any defense to the case presented by the bill. On motion for the appointment of a reTL See Equity, vol. 19, Cent. Dig. § 627.

ceiver in this cause, I dealt with the question presented in a somewhat different form by the pleas-whether the mere liquidation of the damages by the parties to a contract for the sale of land discloses an intent that there shall be an option either to perform or pay the damages. My conclusion was that the agreement set forth in the bill does not suggest any alternative; that the parties merely undertook to liquidate the damages which would be assessed in case damages were sued for in a court of law; that nothing in the agreement, under the authorities which control this court, affected the right of the complainants to a decree of specific performance. Crane v. Peer, 43 N. J. Eq. 553, 4 Atl. 72; O'Connor v. Tyrrell, 53 N. J. Eq. 15, 30 Atl. 1061; Brown v. Norcross, 59 N. J. Eq. 427, 45 Atl. 605; Avon by the Sea Land Imp. Co. v. Thompson, 60 N. J. Eq. 207, 46 Atl. 946.

It may be observed that the argument on each side proceeds upon the theory that the sum of $500 in fact is the liquidated amount of damages to be assessed against either party who shall fail "to perform" an agreement containing a number of provisions varying quite widely from each other in respect of their importance to the parties, and in respect of the pecuniary value of their observance and the damages which would result from their breach. I shall dispose of this case, however, without inquiring whether this theory is correct, or whether, on the contrary, in spite of the words in the agreement which by themselves indicate an attempt to liquidate the damages at $500 in case of any breach of any part of this agreement, the sum named must be regarded merely as a penalty. See Monmouth Park Ass'n v. Wallis Ironworks, 55 N. J. Law, 132, 26 Atl. 140, 19 L. R. A. 456, 39 Am. St. Rep. 626; Monmouth Park Ass'n v. Warren, 55 N. J. Law, 598, 27 Atl. 932; Robinson v. Centenary Aid Society, 68 N. J. Law, 723, 54 Atl. 416.

The brief for the defendants argues that the result of the New Jersey authorities above cited is merely that, where the party defendant is able to perform, he is not allowed, on account of the liquidation of the damages in the agreement, to exercise an arbitrary option to pay the damages instead of performing the contract. The further argument is made that where performance is impossible, as I understand it strictly according to the contract, then the defendant has the option to pay the damages as liquidated in the agreement. What the extent of this alleged rule may be, I do not stop to consider. It would seem to exclude specific performance with compensation where the agreement contains a proper clause liquidating the damages in case of breach. The defendants' whole argument, I think, is sufficiently answered by pointing out that no impossibility of performance is set forth. Of course, neither of these defendants is able of himself to perform the agreement. If

these pleas could be sustained in this case, it seems to me that where the tenant for life, the remainderman, and a mortgagee all unite in agreeing to convey the land in fee, each one might defeat a decree for specific performance by pleading his inability to perform, and his unsuccessful, bona fide application to the other parties who united with him in the agreement to have them join with him in a proper conveyance.

The bill sets forth two separate written agreements of the same purport, bearing the same date, one of which was executed by the defendant Neil Campbell, and the other by the defendant William A. Campbell. The two agreements manifestly constituted a single transaction; their object and legal effect being to bind both of these defendants to execute the conveyance described in each agreement, so as to give the complainants the title which each agreement called for. The defendant Neil Campbell, who is the father of the defendant William A. Campbell, made his agreement first; claiming to be the owner of the land, and to have full power to sell the same. The bill alleges that, after the defendant Neil Campbell had signed and executed his agreement, he disclosed "the fact that the record title to the land and premises in question was in his son, the said defendant William A. Campbell, and who he represented was carrying the same in his name in trust for, and for the uses and purposes of, the said defendant Neil Campbell, and that, for further security unto the said defendant Neil Campbell, he (the latter) held a second mortgage purporting to secure the sum of $14,000, with interest, upon the said land and premises, which he had had his said son, the said defendant William A. Campbell, make and deliver to him, and which was recorded, and which the said defendant Neil Campbell claimed was to secure whatever equity he had in the said land and premises, should anything happen to his said son, the said William A. Campbell, while the title to the said land and premises stood in his name as aforesaid." The bill further alleges that, upon the disclosure of the facts above stated, the proposition was made that "the said defendant Neil Campbell should obtain an additional contract in writing from his said son, the said defendant William A. Campbell, for the sale and conveyance of the said land and premises upon the terms and conditions agreed upon between the said parties as aforesaid, and thereupon the said defendant Neil Campbell caused the said contract to be drawn, and had his said son, the said defendant William A. Campbell, execute, acknowledge, and deliver the same." In the face of these unanswered allegations, the plea of Neil Campbell undertakes to set up that he (Neil Campbell) was unwilling to cancel his mortgage, and was unable to perform the contract, because he had no title to the premises. On the other

*

hand, the plea of the defendant William A. Campbell sets up that he had endeavored to carry out his contract, but was unable to procure the release or cancellation of the mortgage for $15,000 held by the other de fendant, Neil Campbell. There is no impossibility of performance here which lets in any such rule of equity as the counsel for the defendants argues for in his brief. Both defendants are within the power of the court, and can be compelled to execute a conveyance or conveyances which will give the complainants precisely the title which they have a right to call for under each of these agreements.

(68 N. J. E. 584)

In re MIDDLETON'S WILL (Prerogative Court of New Jersey. Nov. 22, 1904.)

WILLS-UNDUE INFLUENCE-EVIDENCE-SUFFI

CIENCY.

1. Without proof that a mistress influenced a testator directly in procuring a will in her favor, it cannot be inferred from their relations that she secured an influence over him which she would naturally and improperly exert to advance her interest.

2. Evidence held insufficient to show that a will which made the testator's mistress the chief beneficiary was procured by undue influence.

Appeal from Orphans' Court, Cumberland County.

Proceedings to probate the will of Benjamin Middleton, deceased. His widow, Ellie J. Middleton, filed a caveat against the probate of the will, and from a decree admitting it to probate she and others appeal. Affirmed.

Samuel K. Robbins and Louis H. Miller, for appellants. Martin W. Lane and James S. Ware, for appellees.

BERGEN, Vice Ordinary. This appeal requires the consideration of the decree of the orphans' court of the county of Cumberland admitting to probate the last will and testament of Benjamin Middleton, deceased.

The testator died on the 7th day of January, 1904, leaving a last will and testament, and surviving him, as next of kin, as appears in the petition for probate, a widow, Ellie J. Middleton, residing in Philadelphia; Louis Middleton, a brother, residing in Tioga, Pa.; and Bushrod Hotteck, a nephew, residing in the city of Philadelphia. The will bears date the 6th day of January, 1904, and, after providing for the payment of his debts, funeral expenses, and place of burial, and the erection of suitable tombstones at his grave, disposed of his estate as follows: To Benjamin, the son of John Lahner, the sum of $500 when he arrives at age; to his wife, Ellie, his parlor furniture, piano, sewing machine, and whatever she might be entitled to for dower in his estate, with the recital that she had deserted his home on the 4th day of October, 1890; to his brother, Louis, his

watch, chain, diamond stud, Masonic emblems, and all family pictures; to Minnie Watson Gilbert, substantially all of his house furnishings, by a somewhat particular description, together with his undivided onehalf interest in the stock and fixtures of a millinery business then carried on by himself and Minnie Watson Gilbert as partners; and also the sum of $300 to pay her for taking care of his dog, "Trix," during its life; to the said Minnie Watson Gilbert, the resi due of his estate. Minnie W. Gilbert and the Cumberland Trust Company were appointed executors, with power to sell his real estate.

The widow filed a caveat against the probate of the will, and on the hearing it was contended in support of the caveat, first, that the testator was of unsound mind when the will was executed; and, second, that he was unduly influenced by Mrs. Gilbert in the making of his will. The evidence shows that the first objection has no foundation. The testator undoubtedly was an excessive drinker of intoxicants during the last 10 or 15 years of his life, with the exception of about 3 months before his death, when the testimony shows he practically abstained, and there is nothing in the evidence which shows that when this will was executed his mind was not what is usually called "sound and disposing." All the written memoranda given to the attorney who drew the will were prepared by the testator by erasures and interlineations of a previous will, indicating the changes he desired made, so far as he could do so, and to this were added certain oral instructions as to the disposition of certain property not in existence when the former will was executed. The care and method exercised in doing this, and the testimony of the witnesses as to his mental capacity, convince me that the first objection has not been sustained.

The material facts upon which it is sought to sustain the charge of undue influence are as follows: In 1890 the appellant left the home of her husband, and has never since resided with him. They were married in the year 1870, and resided in Philadelphia for about 12 years thereafter, when they removed to a farm near Moorestown, in the hope, as the appellant testifies, that he would reform, he being at that time an excessive drinker; but, according to her statement, this hope was not realized, for, although he continued to attend to his business, he was habitually drunk, and cruel to her, for which reason she left him, but, after staying away three or four months, returned. The date of the first separation does not appear, but I gather from the testimony that it was in the year 1886, and she returned because her husband constantly wrote to her, insisting on her coming back. The reasons she gives for leaving him finally in 1890 appear in the testimony as follows: "Q. What was the cause of your leaving him the last time? A Cruel treatment. I couldn't stand him. Q That you made up your mind to leave? A