should get married, then the said property | so as to take effect on the determination of shall go to the heirs of my brother William that estate, whether by death or marriage." forever." The testator's brother William It is to be observed, in this connection, that died after him, intestate, leaving his widow, the learned vice chancellor put his decision viz., Susan Ritter, who afterwards died leav- upon what he conceived to be the intention ing a last will and testament and therein of the testator, thus giving effect to a cargave all her estate to Thomas R. Jennings, dinal rule for the construction of wills, for the appellant. On an application for an or- he observed in the next paragraph: "What der of distribution of the estate of Gilbert the testator undoubtedly intended was a proC. Ritter, deceased, being made to the or- vision for his unmarried daughters during phans' court of the county of Union, it be- their maidenhood, even if that condition concame incumbent upon that tribunal to con- tinued until their death, and, in the event strue the fourth clause of the testator's will of the destruction of that previous estate, above quoted in order to determine to whom either by marriage or death, then the cordistribution should be made, whether to the pus of the fund was to be divided among next of kin of Gilbert C. Ritter, or to the his living children, which might include beneficiary under the will of Susan Ritter, these three daughters if the determination the widow of his brother, and that in turn of their life estate had been caused by marinvolved the question whether the bequest riage, and also among the issue, per stirpes, to the brother's widow was of the corpus of any of his children who might have died of the share given to him for his life, with before the determination of the previous esremainder to her as long as she remained tate." single, or whether the estate in her in any The appellant relies upon the rule that a event was no greater than a life estate, in | bequest of the income of personalty, without which case upon her death it, would go to the next of kin of her deceased husband, to whom it was given upon the termination of the particular estate.

limit as to time, is equivalent to a gift of the principal; and he says that the language of the testator in the fourth clause of his will, in which he provides that if his broth

The orphans' court made a decree distrib-er William's wife, Susan, should survive her uting the corpus of the share in question to husband, "she shall have rights and benethe next of kin of William Ritter as of the fits," is an unqualified gift of the income, death of Susan Ritter and excluded the bene- and is, consequently, a gift of the principal. ficiary under her will, deciding the question There is also a rule that where an absolute involved upon the authority of Trenton gift is made in the first instance, followed Trust Co. v. Armstrong, 70 N. J. Eq. 572, 575, by a limitation over, the absolute gift is not 62 Atl. 456, 457, in which Vice Chancellor defeated unless the gift over takes effect. Bergen observed: "The next question pre- These two rules are stated in Gulick v. Gulsented is: Has the testator made any dis- ick's Ex'rs, 27 N. J. Eq. 498. The appellant position of the corpus of his estate? The contends that, as Susan Ritter died without gift over, as expressed by the testator, is to having married, she died seised of the cortake effect when all of the three unmarried pus of the share of the estate given to her daughters are married, and it is insisted that husband for life and then over to her, and the gift of the corpus is liable to take ef- that therefore it passes to the legatee under fect or to be defeated by the occurrence or her will. The learned judge in the court nonoccurrence of an uncertain event, viz., below held that the gift to Susan of "rights the marriage, not of one, but of all of these and benefits" meant not only the income but unmarried daughters, and therefore falls also the corpus of the estate. In this view within the definition of a 'conditional leg- I concur. He then held that the question acy,' and, as one of the daughters died un- was controlled by Trenton Trust Co. v. Armmarried, the condition upon which distribu-strong, and he extended by implication the tion depends can never happen, and that limitation over upon Susan's remarriage to therefore the testator died intestate as to a like limitation upon the happening of her the corpus. In my judgment this insistment death. From this conclusion I dissent. has not the sanction of the true rules of construction to be applied to a case of this character, and I am of opinion that the testator intended to create, and under wellestablished rules for the construction of wills did create, an estate for life, which was subject to an earlier termination upon the marriage of all his then unmarried daughters, and that the remainder over takes effect on the determination of the preceding estate, whether by death or marriage, and that although the bequest over is, in terms, made payable upon the marriage of the life

In Traphagen v. Levy, 45 N. J. Eq. 448, 453, 18 Atl. 222, 224, there was a gift of onethird of the income derived from the testator's real estate to his widow for an indeterminate period of time if she should not remarry, and Chancellor Runyon observed: "No other disposition is made of it, or of the undivided third of the principal of the estate which it represents. Her interest, then, is an equitable fee in one-third of the testator's estate, subject to be defeated by her marriage. As she died without having been married, that equitable fee descended

ing widowhood is a gift for life or during 2. FRAUDULENT CONVEYANCES (§ 47*)-SALES IN BULK-"VOID." widowhood, but a gift of income to the legThe sales in bulk act declares that a sale

atee so long as she should continue single in violation thereof shall be "void" as to credand unmarried has been held to be an ab-itors, provided that no proceedings at law or solute interest, if the legatee did not mar- in equity shall be brought against the purchasTheobald on Wills (7th Ed.) 480. Nower to invalidate such "voidable" sale after the expiration of 90 days from the consummation thereof. Held, that the word "void" was used in the sense of voidable, and that the sale was a nullity only when attacked by creditors within the prescribed period.

the goods as those of Harbison, Bauer, to a cause. Smith v. Union Bank, 5 Pet. 518, whom the goods had been sold, filed with the 8 L. Ed. 212; Mills v. Provident Life & judge of the court of common pleas of Cape Trust Co., 100 Fed. 344, 40 C. C. A. 394; May county a claim of property to these chat- Vanderveer v. Conover, 16 N. J. Law, 487; tels. The claim was filed on September 3, 23 Eng. & Amer. Enc. of Law, p. 156. We 1908. At the close of the trial a verdict was think the act of the sheriff in levying upon directed for the claimant. the property sold to Bauer was a proceeding at law. This was the view taken of a similar provision in the Pennsylvania statute. Wilson v. Edwards, 32 Pa. Super. Ct. 295. A levy upon this property as being still the property of Harbison, the vendor, was a direct challenge of Bauer's title to it. It was a challenge not by the mere personal seizure of the goods, but by a seizure by an officer under a legal writ in an action at law. It was such a seizure as invited an action by Bauer, or a claim of title by him, by which a trial of right of property could be had.

The question involved arises in construing the act entitled "An act to prohibit sales of merchandise in bulk in fraud of creditors." Paragraph 1 of this act is as follows: "The sale in bulk of the whole or a large part of the stock of merchandise and fixtures, or merchandise or fixtures, otherwise than in the ordinary course of trade, and in the regular and usual prosecution of the seller's business, shall be void as against the creditors of the seller, unless the purchaser shall, in good faith, and for the purpose of giving the notice herein required, make inquiry of Upon the argument the question was disthe seller and receive from him a list in cussed at length whether a sale in violation writing of the names and places of resi- of the statute was absolutely void, or meredence or business of and indebtedness to each ly voidable. The body of the act, as will be and all of such creditors, and unless the pur- observed, declared that a sale should be void chaser shall, at least five days before the con- as to creditors unless certain things were summation of the sale, give personal notice done by the purchaser. The proviso, howof said proposed sale to each of the credit- ever, speaks of the sale as "such voidable ors of the seller as appearing on said list, or sale." The word "void" was used in the use reasonable diligence to cause personal sense of voidable. The proviso itself shows notice to be given to them, or shall deposit that the sale was a nullity only when attackin the mail a registered letter of notice, post-ed by creditors within a certain period. The age prepaid, addressed to each of the seller's statutes against fraudulent conveyances gensaid creditors at his post office address, ac-erally provide that all conveyances shall be cording to the written information furnished; provided, however, that no proceedings at law or equity shall be brought against the purchaser to invalidate any such voidable sale after the expiration of ninety days from the consummation thereof." Act June 11, 1907 (P. L. p. 570). There was evidence in the present case to show that the sale of the property was in bulk, not in the ordinary course of trade, that no inquiry was made of the seller for a list of the vendor's creditors, and no notice was given of the proposed sale to the creditors. The single point upon which the verdict was directed for the purchaser was that Dickinson & Co., the creditors, took no proceedings in law and equity to invalidate the sale within the 90 days from the time it was consummated. As already remarked, the sale was consummated on May 30, 1908. The 90 days from the consummation expired August 11, 1908. The creditor got his levy on his execution against the vendor before the expiration of the 90 days. No other proceeding was taken within the 90 days to invalidate the sale. The claim of property by the vendee was filed after the expiration of the 90 days. So it appears that there was no action at law or suit in equity against Bauer, the purchaser, brought within the period of limitation provided by the statute.

The statute, however, uses neither the word "action" nor "suit," but the word employed is "proceedings." We think it cannot be doubt

void, but these words in that connection are construed to mean voidable only at the instance of persons who may be injured or aggrieved thereby. 14 Eng. & Amer. Enc. of Law, 280; 29 Eng. & Amer. Enc. of Law, 1068. But, when a legal title to property is once vested in a debtor the law does not consider him, as far as his creditors are concerned, to have been divested of it by a conveyance which is fraudulent as against them. If any creditor's claim has been reduced to judgments, he may levy his execution upon the property and subject it to sale for the satisfaction of his debt. 14 Enc. of Law, 311; Mulford v. Tunis, 35 N. J. Law, 256; Brockhurst v. Cox (N. J. Ch.) 64 Atl. 182. In the present case, while the sale was voidable at the instance of creditors, yet the creditor could get his judgment and levy his execution upon the property sold within the time limited by the statute, and acquire a position to attack or to resist an attack of a vendee. A sale under the execution would pass the title to the purchaser. We are of the opinion that the direction of the verdict should be reversed. It may be observed that the statute in this case is similar to a New York act prohibiting sales in bulk, which act was held to be unconstitutional in Wright v. Hart, 182 N. Y. 330, 75 N. E. 404, 2 L. R. A. (N. S.) 338. The same result was reached respecting similar statutes in McKinster v. Sagre, 163 Ind. 671, 72 N. E. 854, 68 L. R. A. 273, 106 Am. St. Rep. 268; Sellers v.

v. Crawford, 70 Ohio St. 207, 71 N. E. 631; | vice chancellor in Wyckoff v. O'Niel, 71 N. Block v. Schwartz, 27 Utah, 387, 76 Pac. 22, J. Eq. 681, 63 Atl. 982, to which may be 65 L. R. A. 308, 101 Am. St. Rep. 971. On added for completeness King v. Berry, 3 the other hand, similar acts have been held | N. J. Eq. 44, Search v. Search, 27 N. J. Eq. to be constitutional in Squire v. Tellier, 185 137, and Field v. Field, 61 N. J. Eq. 154, 47 Mass. 18, 69 N. E. 312, 102 Am. St. Rep. 322; | Atl. 275. The assumption of jurisdiction by Walp v. Mooarn, 76 Conn. 515, 57 Atl. 277; Neas v. Borches, 109 Tenn. 398, 71 S. W. 50, 97 Am. St. Rep. 851. See also, note to Block v. Schwartz, reported in 1 Am. & Eng. Ann. Cas. 557.

No point was made respecting the constitutionality of the act in the argument in this case, and so it has not been considered. Judgment is reversed.

(75 N. J. E. 571)

FILLEY V. VAN DYKE et al. (Court of Errors and Appeals of New Jersey. April 30, 1909.)

1. EXECUTORS AND ADMINISTRATORS (8 469*) -ACCOUNTING JURISDICTION OF CHANCERY COURTS.

Except for some special reason, the Court of Chancery will not interfere with the ordinary jurisdiction of the probate courts in the settlement of the accounts of executors and adminis

trators.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 2009; Dec. Dig. § 469.*]

2. EXECUTORS AND ADMINISTRATORS (8 510*) -ACCOUNTING JURISDICTION OF CHANCERY COURTS-REVIEW.

But if such special reason be apparent, it is not only the right, but the duty, of that court to interfere; and its action in the premises will be subject to review.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 2236; Dec. Dig. § 510.*]

(Syllabus by the Court.)

Appeal from Court of Chancery.

Bill by Mary E. Filley against Frederick A. Van Dyke and others. From an order

chancery in cases where the orphans' court has already entertained an accounting and has not completed it by a final decree thereon rests in the sound judicial discretion of the former court, in view of such special circumstances as may be presented in the particular case; the question then being whether the circumstances show special cause for the interference of the court. Bird v. Hawkins, 58 N. J. Eq. 229, 239, 42 Atl. 588.

In Salter v. Williamson, 2 N. J. Eq. 480, 35 Am. Dec. 513, the desire of the parties interested for an account in chancery, their right to discovery, and questions relating to alleged advancements to the administrator, were held sufficient cause; so, in King v. Berry, 3 N. J. Eq. 44, was a prayer for injunction against the executors and for a receiver of certain property and that security be required of the executors. In Clarke v. Johnston, 10 N. J. Eq. 287, nothing having been done in the orphans' court, and chancery having a complete basis for accounting in the bill and answer, it proceeded in that | court. In Bird v. Hawkins, 58 N. J. Eq. 229, 42 Atl. 588, the necessity of construing a will in order to account properly was held sufficient, and in Field v. Field, 61 N. J. Eq. 154, 47 Atl. 275, the same view was expressed as to a charge that certain real estate was burdened with a trust requiring a sale under supervision of the court and ad interim collection of rents. But chancery refused to interfere in Van Mater v. Sickler, 9 N. J. Eq. 483, where there were merely errors in the account which could be reviewed by exceptions, in Frey v. Demarest, 16

sustaining a demurrer to the bill (69 Atl. N. J. Eq. 236, a suit brought after final ac200), complainant appeals. Reversed.

John J. Crandall, for appellant.

count for the collection of a share ascertained thereby, and in Rutherford v. Alyea, 54 N. J. Eq. 411, 34 Atl. 1078, a bill by a creditor not aimed at the general settlement of the estate, but seeking the collection of the creditor's claim, this court reversed an order overruling demurrer to the bill and held it not a case for entertaining jurisdiction. The facts appearing by the present bill are: That Sarah E. Buck died about March

PARKER, J. The question raised by this appeal is whether the Court of Chancery erred in refusing upon the face of the complainant's bill to take over from the orphans' court of Atlantic county the supervision of the final accounting of administrators of the estate of Sarah E. Buck, deceased. In the opinion of Vice Chancellor Garrison, report- 4, 1900, intestate, leaving personal property ed in 69 Atl. 200, it is assumed, and rightly, that, unless some special reason appeared for such action, the Court of Chancery, notwithstanding its ancient and well-established jurisdiction in that regard, would not interfere with the jurisdiction over the accounts of executors and administrators which was vested by statute in the orphans' court. This proposition is well established by a long line of decisions cited by the same

amounting to $31,000, and her mother, Amy A. Van Dyke, and her two brothers, Frederick A. Van Dyke and William B. Van Dyke, as next of kin. That the brothers were appointed administrators in April, 1900. That Frederick was removed as administrator about 1905, and the Guarantee Trust Company substituted, but that Frederick refuses to turn over assets in his hands, and that the substituted administrator has taken

no steps to collect them. That Frederick is question is one for the sound judicial disfinancially irresponsible, and that his sure-cretion of that court, and ordinarily matty should be held liable. That no account ters of discretion are not reviewable; but of the estate showing Mrs. Van Dyke's dis- in Rutherford v. Alyea, ubi supra, this court tributive share had been exhibited, though treated the question as subject to its apseven years had elapsed. That about the pellate jurisdiction, as also in the somewhat latter part of 1906 Mrs. Van Dyke filed her analagous case of refusal to appoint a rebill against the administrators praying for ceiver. Fitzgerald v. State Mutual Building a discovery and payment of her share in & Loan Association (N. J.) 69 Atl. 564. the estate, and that Frederick answered, set- The other grounds of demurrer, which ting up certain alleged payments specified in were not discussed in the opinion of the the bill, as having been passed on by the court below nor mentioned in the decree aporphans' court and charged to the estate, pealed from, have nevertheless been examwhich the present complainant claims are ined to see whether any of them will supfictitious and fraudulent, but that on ac- port the demurrer. As to the first ground, count of want of parties to the bill, and be- which was that the Atlantic Safe Deposit cause of Mrs. Van Dyke's illness at the time & Trust Company, surety, is neither a propand death shortly afterwards, her bill was er nor necessary party, it is enough to say dismissed. That she left a will in favor of that the propriety of joining the surety in complainant, Mary E. Filley, who has suc- an action of this character was adjudged in ceeded to her rights as executrix. That one Dorsheimer v. Rorback, 23 N. J. Eq. 46, afof such payments in particular was in sat-firmed by this court in 25 N. J. Eq. 516, and isfaction of a judgment recovered against | we do not understand that a defendant who Frederick and William personally by the is properly joined can complain that his judge of the orphans' court for legal serv- joinder was unnecessary. The second ices rendered by him to them, and that he ground, that no decree was prayed against never rendered any services to the estate. the demurring defendant, and the third, that The prayer is for discovery of the estate there is no prayer for relief as to any of generally and specially as to the items of the defendants, are disposed of by what has discharge which are challenged, and for re- already been said. The fourth, that certain lief against the administrators and their other defendants are not proper parties, is surety. Among the defendants named are not available to this defendant. Herman v. the administrators, their surety, the Atlantic Freeholders, 71 N. J. Eq. 541, 64 Atl. 742. Safe Deposit & Trust Company, the substi- The fifth, that chancery is deprived of jututed administrator, Guarantee Trust Com- risdiction by the existence of jurisdiction in pany, and the judge of the orphans' court the orphans' court, was correctly disposed of in which the final account would ordinarily in the opinion below. The sixth and last be conducted, and in which the proceedings was the basis of the decree below. have heretofore been had, who recovered the judgment already mentioned. The only demurrers are by the Atlantic Safe Deposit & Trust Company and the Guarantee Trust Company, and are identical in form. They specify a number of causes, of which apparently only one, general want of equity, was considered. The order appealed from sustains only the demurrer of the Atlantic Safe Deposit & Trust Company, and on the sole ground that "the bill of complaint does not show a case of equitable cognizance."

We therefore conclude that the order sustaining the demurrer was erroneous, and it will, accordingly, be reversed.

(78 N. J. L. 22)

CAMPBELL v. GILKYSON, Acting Adjutant

General.

(Supreme Court of New Jersey. April 15, 1909.)

MILITIA (§ 2*)-REMOVAL OF COMMISSIONED

OFFICER CONSTITUTIONAL PROVISIONS. The supplement to the militia act approved March 2, 1909 (P. L. p. 13), is a constitutional enactment that does not contravene paragraph 6, § 1, art. 7, of the state Constitution.

[Ed. Note.-For other cases, see Militia, Dec. Dig. § 2.*]

(Syllabus by the Court.)

Treating the case on the lines of the opinion and decree below, we are unable to agree with the vice chancellor that no special cause for interposition by the Court of Chancery appeared on the face of the bill. We think that long delays unexplained, the inaction of the parties, the retention of assets by Frederick, and, above all, the action of the judge in passing an important item of account in which he was personally interested, all of which were admitted by the demurrer, furnished ample reason for interference by the Court of Chancery and its assumption of full jurisdiction in the premises. It has already been said that this

Certiorari by Edward A. Campbell to review an order by John Franklin Fort, Governor, and signed by Frederick Gilkyson, Acting Adjutant General, relieving prosecutor from his command of Brigadier General, and placing him on the retired list pursuant to Act March 2, 1909 (P. L. p. 13). Writ dismissed.

The prosecutor, who was elected and com. missioned to the office of Brigadier General