having the matter in charge to undertake the additional work of plans and specifications for and superintendence of the construction of a new waterworks, upon the assurance by that committee that they would advocate and endeavor to obtain an increase of his salary to compensate for such additional work. Such increase having been later awarded, to take effect at the beginning of the extra services, held, that the mayor was not justified in refusing to sign a warrant therefor, and that an alternative writ of mandamus will issue to compel him to do so.

(Syllabus by the Court.)

Application by the state, on relation of Frederick T. Crane, for writ of mandamus to Isaac Shoenthal, mayor of the city of Orange. Writ granted.

Argued February term, 1908, before REED, PARKER, and VOORHEES, JJ.

McCarter & English, for relator. Smith & Dungan, for defendant.

PARKER, J. The relator, while city engineer of the city of Orange, undertook the preparation of plans and specifications and supervision of the work of building new waterworks of that city, to cost in the neighborhood of $200,000, and began to do this work about September 1, 1906, under an understanding with the water committee that, as this work was considered somewhat outside the scope of his regular duties as such engineer, the committee would recommend the council to give him an increase of salary of $1,200 per year so long as the extra "work continued. Such a resolution was passed by the common council in March, 1907, but vetoed by the mayor, and subsequently repassed over his veto early in May, 1907. This resolution provided that the increased salary should begin on September 1, 1906, thus awarding the sum of $600 of back pay for the months from September to February, inclusive. A warrant was drawn for this $600 and presented to the mayor for his signature, which was required by law before the warrant could be paid. The mayor refused to sign it, and the present rule was made upon him to show cause why he should not be directed to do so.

In opposition to the rule it is urged, and correctly, that a public official who is paid a salary is not entitled to claim extra pay because of an increase in the duties of his office, but has the opportunity of resigning if he finds those duties too onerous. It is also urged that the conversations and understanding with the water committee constituted no contract and in no way binding upon the city. This is also true. The merit of the relator's case, however, lies in the fact that he did not undertake the increased duties until it had been suggested and practically -arranged that the water committee would recommend an increase of salary in consideration of his performing them. At that time the question of employing an outside engineer to attend to these duties was under .consideration; so that, so far, at least, as

the water committee is concerned, it was fully recognized that the work in question was outside the scope of the relator's duties as city engineer. In all probability he need not have performed those duties if he had not been willing to undertake them, and the city would then have employed an outside engineer. Naturally he was willing to consider an additional employment in view of the increase of salary. But the option of undertaking these new duties or resigning was never presented to him at all. He was never told that he would have to perform them, and without doubt would never have undertaken them without the assurance on the part of the committee that they would recommend and endeavor to obtain for him an increase to date from the beginning of his work. While such an obligation creates no obligation on the part of either the committee or the council, it seems to us that it furnishes a valid consideration and a legal basis for the adoption by that council of a resolution awarding the increase to date from the be ginning of the extra work.

We are therefore of opinion that a mandamus should issue; but, in order to preserve a right of review on the part of the respondent, the writ will be in the alternative form.

(74 N. J. E. 413)

MCCLOSKEY v. THORPE et al. (Court of Errors and Appeals of New Jersey. June 15, 1908.)

WILLS-CONSTRUCTION-NATURE OF ESTATE.

A testator by his will provided as follows: "Third. I own one-third of the sawmill, under the firm of S. L. Shimer & Co. It is my will and I do order the one-third sold, within one year after my decease, to the best advantage, and the money paid over to my wife Charity for her use, and I also will her all my personal property that I am possessed of, and if there should be anything left, after her death, then I want that divided also with the money from the house and lot." Held, that the widow took an absolute estate in the proceeds of sale and in the personal property.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, §§ 1319-1334.]

(Syllabus by the Court.)

Appeal from Court of Chancery.

Action by Harriet McCloskey substituted administratrix against Jonas J. Thorpe and others. Judgment for plaintiff and defendants appeal. Reversed.

Smith & Brady, for appellants. O. D. McConnell, for respondent.

SWAYZE, J. John Rooks died in October, 1870. By his will, after directing that his debts and funeral expenses be paid, he provided as follows:

"Second. I give and bequeath unto wife Charity the house and lot of land, with its outbuidings, in which I now live, as long as she lives, for her own benefit, and after

her death to be sold and divide the money between Harriet Eicke and John Zellers (both children that I have raised), when they come of age, Harriet two thirds and John one. "Third. I own one-third of the sawmill, under the firm of S. L. Shimer & Co. It is my will and I do order the one-third sold, within one year after my decease, to the best advantage, and the money paid over to my wife Charity for her use, and I also will her all my personal property that I am possessed of, and if there should be anything left after her death, then I want that divided also with the money from the house and lot: Provided, however, if either Harriet Eicke or John Zellers should die before my wife, both die, then I will that the money so left to them shall be given to the trustees of Grace Lutheran Church of Phillipsburg to be appropriated for its benefit. I want S. L. Shimer with my wife to sell the sawmill property and make a deed for the same or his executor. I will and order that my sister Fannie Mundy have four hundred dollars, taken off of the two Harriet and John's shares after my wife's death, and in case the boy, John Zellers, don't turn out to be a sober, honest, upright man, he can have no legacy in this will. Dated October first, eighteen hundred and seventy."

His widow, Charity, took out letters of administration with the will annexed, and with S. L. Shimer sold Rooks' one-third interest in the sawmill. Charity took possession of the testator's personal property and received the proceeds of sale of his interest in the sawmill, amounting in all to $5,000. She died intestate in 1904, and Jonas J. Thorpe, one of the defendants, was appointed administrator of her estate. Her personal property was appraised at a little less than $3,000 all of which had been derived from the estate of her husband. This property is claimed by the complainant as property of the estate of John Rooks. The Vice Chancellor so held, and decreed that the complainant was entitled to an accounting. The question at issue is whether Charity took an absolute estate, or only a life estate, in the proceeds of the sawmill and the personal property.

The principle underlying the case is thus stated by Chancellor Green in Annin's Ex'rs v. Van Doren's Adm'r, 14 N. J. Eq. 135, at page 146: "The cases rest upon the principle that if the testator, either expressly or by implication, manifests an intent to vest in the first legatee the uncontrolled power of disposing of the property, such power involves the idea of absolute ownership, and the limitation over is void, as inconsistent with the rights of the first legatee. The uncontrolled power of expenditure necessarily implies absolute ownership as fully as the power of disposing of it; and this difficulty can only be overcome by limiting the right of expenditure to so much as may be necessary for the support of the legatee." In that

case he found no such limitation in the will, which contained a bequest over of such part as remained unexpended.

In Downey v. Borden, 36 N. J. Law, 460, where there was an express power of disposition of one-third of the estate, the first taker was held to have a fee.

A similar result was reached by Chancellor McGill in Rodenfels v. Schumann, 45 N. J. Eq. 383, 17 Atl. 688, although Chancellor Runyon held differently upon the same will, and by this court in Tuerk v. Schueler, 71 N. J. Law, 331, 60 Atl. 357.

In Wilson v. Wilson, 46 N. J. Eq. 321, 19 Atl. 132, the bequest over was of the remainder of the estate "whatever it may be at the decease of my said daughter." Chancellor McGill held that these words did not necessarily imply a power of disposition or absolute dominion, because the testator, in bequeathing over "whatever it may be at the decease of my said daughter," may have had in mind, not the fact that the daughter might expend the bequest, but rather changes wrought by investment; for he said it is as likely that the testator contemplated a change in the character or nature of the res idue as he did a change in the amount, and if he contemplated change in amount it might have been by increase as well as by decrease, or if by decrease, such decrease as might possibly be brought about by accident.

The cases were reviewed by Vice Chancellor Pitney with his usual thoroughness and acumen in Tooker v. Tooker (N. J. Ch.) 64 Atl. 896.

An examination of these cases demonstrates that, if the language of the will is such as necessarily to imply an absolute power of disposition, the estate is absolute in the first taker; and such power of disposition is to be implied from an untrammeled power to expend the legacy.

In the present case the testator by clause 3 of the will directed absolutely a sale of the real estate, and then directed that the money be paid over to his widow for her use, and followed this by an absolute gift of the personal property. The language used in this blended gift of proceeds of sale of realty and of personalty was the language of an absolute gift. If this absolute estate is to be restricted to a life estate, such restriction should be apparent in the rest of the will. An examination of the will shows that the testator did not contemplate that anything would necessarily be left. His language is not, as in some of the cases cited. "what remains," but "if there should be anything left." The conditional form indicates that nothing might be left. By the second clause he was careful to give the widow a life estate only in the dwellinghouse. He had in mind, therefore, the difference be tween a life estate and a fee. That he had the distinction in mind when the third clause was drafted must be inferred from the direction that, if there should be anything

N. J.)

left after her death, it was to be divided, with the money from the house and lot.

If

The mill was to be sold, not by the widow alone, but by the widow and Shimer. he had intended that his wife should have only the income of the proceeds, the natural thing would have been to leave the money in Shimer's hands, with directions to invest and pay over the income. Instead of doing so, he directs that the money be paid over to his wife for her use. The last words are significant. If they are meant in the technical legal sense of "use," the gift amounts to a gift of the property itself. If they are meant in the popular sense of the words, they may quite as readily be held to mean that she might use it up as that she should have only the usufruct. The former meaning is indicated clearly when he immediately thereafter intimates the doubt whether anything would be left.

The learned Vice Chancellor thought that the words, "if there should be anything left after her death," were used as applicable to the personal property, which consisted in great part of consumable goods. There is some force in this view, but the conclusion to which it leads is adverse to the respondent. If the words apply only to the personal property, with which they are in immediate collocation, there is nothing to indicate an intention on the part of the testator to limit the absolute estate in the proceeds of sale of the mill property which arises out of the previous language of the will.

We are satisfied that the testator intended that his wife should expend the proceeds of sale if she wished. To do this she must have an absolute power of disposition, and the case is within the principle relied on by Chancellor Green in Annin's Executor v. Van Doren's Administrator.

The decree is reversed, with costs.

(79 N. J. E. 193)

STATE COUNCIL OF JR. O. U. A. M. v. NA-
TIONAL COUNCIL OF JR. O. U. A. M.
(Court of Errors and Appeals of New Jersey.
June 15, 1908.)

1. APPEAL AND ERROR-DECREES IN EQUITY— TIME FOR TAKING APPEAL.

The supplement of 1907 to the act respecting the Court of Chancery (P. L. 1907, p. 452), applies to appeals from decrees made prior to the passage of the act, and requires that such appeals be made within six months from the passage of that act, or, if not made within that time, then within one year from the date of the decree.

2. SAME-CONSTITUTIONAL LAW.

An act changing the time for taking an appeal from a final decree in chancery from three years to one year, which is made applicable to decrees antedating the act, but allows six months after the act takes effect for appealing, is a valid enactment.

(Syllabus by the Court.)

Bill by the State Council of the Junior Order United American Mechanics against

the National Council of the Junior Order United American Mechanics. From the decree (64 Atl. 561), defendant appeals. Dismissed.

Alan H. Strong, for the motion. B. B. Hutchinson, opposed.

SWAYZE, J. The final decree from which this appeal was taken was made August 16, 1906. The appeal was taken January 20, 1908. It was taken within the three years allowed by law at the time the decree was made, but not within the time allowed by the act of 1907 (P. L. 1907, p. 452). That act requires appeals from final decrees to be made within one year. Section 2 provides that the act shall not affect the right to appeal from final decrees made prior to the time it took effect (May 15, 1907), provided appeal be made within six months after that date.

The act of March 27, 1874, relative to statutes (1 Gen. St. 1895, p. 3194, pl. 27), prevents the amendment of 1907 from affecting the right of appeal as it had theretofore existed, unless the Legislature has, either in express language or by implication so strong as not to be resisted, indicated the legislative purpose to supersede this rule of statutory construction. Barnaby v. Bradley & Currier Co., 60 N. J. Law, 158, 161, 162, 37 Atl. 764. The proviso in the second section of the act of 1907 indicates clearly that the right of appeal from final decrees made prior thereto is affected by the act unless the condition requiring appeal within six months is complied with. The fact that the appeal must be taken within that time to preserve the right of appeal amounts in itself to a limitation of the time as to all decrees which were made six months or more prior to May 15, 1907. As to those made within six months prior to that date the new act by section 1 itself allows one year, and is by its terms applicable if the appeal is not taken before November 15, 1907.

The only question that can be raised is as to the validity of the legislation as thus construed. The effect is to create three classes of cases: (1) Appeals from decrees made prior to November 15, 1904. As to these the appeal might still be made within the three years allowed by the original act. (2) Appeals from decrees made between November 15, 1904, and November 15, 1906. As to these the appellant is allowed the six months after May 15, 1907, and his time for appeal varies from a year and a day to three years. (3) Appeals from decrees made between November 15, 1906, and May 15, 1907. As to these the appellant has the year allowed by section 1 of the amending act. But these differences arise, not from any distinction in the act itself, which applies alike to all cases, but to the different state of facts to which it becomes applicable. The act is therefore general. By our Constitution the judicial power is

vested in a Court of Errors and Appeals in the last resort in all causes as heretofore, and in certain other courts. At the time of its adoption there was an appeal from the Court of Chancery to this court by virtue of the act of June 13, 1799 (Pat. Rev. Laws, p. 434, § 59). There can be no doubt that this right of appeal is secured by the Constitution. Harris v. Vanderveer's Executor, 21 N. J. Eq. 424. Like the right of the Supreme Court to review proceedings of inferior tribunals by certiorari, the right of this court to review decrees of the Court of Chancery may be regulated by prescribing a reasonable time within which the appeal may be taken. Traphagen v. West Hoboken, 39 N. J. Law, 232, 237, affirmed 40 N. J. Law, 193. statutes limiting the time for appeals and writs of error and certiorari in different classes of cases are familiar instances of the exercise of this power by the Legislature.

Our

It is also within the power of the Legislature to enact statutes which shall affect these existing rights of appeal. Cooley on Constitutional Limitations, 473; Smith v. Packard, 12 Wis. 371; Rupert v. Martz, 116 Ind. 72, 18 N. E. 381. A somewhat similar case is Ex parte McCardle, 7 Wall. (U. S.) 506, 19 L. Ed. 264. In the analogous case presented by a change of the period for limitation of actions, it is well settled that such statutes are not unconstitutional, although they may affect existing rights, if a reasonable time is given for the commencement of an action before the bar takes effect. Terry v. Anderson, 95 U. S. 628, 24 L. Ed. 365. Logically no other result seems possible. Since the Legislature may prescribe the time within which an appeal may be taken, it may well fix any time after the passage of the act, provided it is not so short as to amount substantially to a denial of the right of appeal. That six months is a reasonable time cannot be denied. It is much more than the time which has long been fixed by statute for taking an appeal from an interlocutory decree, and twice as long as the time allowed for appealing from a final decree where a lis pendens has been filed.

We think the statute is not open to the objections that have been urged, and the appeal must be dismissed, with costs.

(76 N. J. L. 286)

NEW JERSEY SOCIETY FOR PREVENTION OF CRUELTY TO ANIMALS v. ATKINSON.

(Supreme Court of New Jersey. June 15, 1908.) 1. JURY--DENIAL OF RIGHT TO JURY TRIALWAIVER OF OBJECTION-CERTIORARI.

In a prosecution for a penalty under section 13 of the act for the prevention of cruelty to animals (1 Gen. St. 1895, p. 36) before a justice of the peace, the defendant is entitled to a trial by jury, but when the justice refuses to issue a venire, and the defendant appeals to the common pleas, and has there a trial by jury, he cannot afterwards, upon certiorari to the common pleas, complain of the error of the justice.

2. ANIMALS-CRUELTY TO ANIMALS - ACTION FOR PENALTY.

In a proceeding under section 13 of the act for the prevention of cruelty to animals (1 Gen. St. 1895, p. 36), after a verdict of guilty, it is the duty of the court to fix and determine the amount which the defendant shall forfeit and pay; but, where the court in form assesses the damages of the plaintiff, the error is purely formal and may be corrected.

(Syllabus by the Court.)

Certiorari to Court of Common Pleas, Ocean County.

Action by the New Jersey Society for the Prevention of Cruelty to Animals against Charles Atkinson. Judgment for plaintiff. and defendant brings certiorari. Judgment affirmed.

Argued February term, 1908, before GARRISON, SWAYZE, and TRENCHARD, JJ. William Hyres, for prosecutor. Halsted H. Wainwright, for the society.

SWAYZE, J. The prosecutor was convicted of a violation of section 13 of the act for the prevention of cruelty to animals (1 Gen. St. 1895, p. 36, pl. 29) before a justice of the peace. He appealed to the common pleas, and the case was there tried de novo before a jury, who found him guilty. The court thereupon ordered that judgment final be entered, and, to adopt the language of the rule for judgment, "assessed the damages at the sum of $25."

The prosecutor now complains that he was denied a trial by jury in the justice's court, and that there was no legal conviction by the common pleas.

The proceeding is one governed by the practice of the small cause court. The penalty is to be recovered by action of debt, and section 14 (1 Gen. St. 1895, pp. 39, 40) expressly enacts that judgment shall be rendered for the penalty in like manner as in actions for the recovery of money or damages in the court for the trial of small causes, and that all proceedings shall conform to the course and practice of the court before which the same shall be instituted. Pennsylvania R. R. Co. v. Society, 39 N. J. Law, 400. Such an action, where imprisonment is not authorized, is a civil action. Brophy v. Perth Amboy, 44 N. J. Law, 217, Unger v. Fanwood, 69 N. J. Law, 548, 55 Atl. 42, and subject to the provisions of the act relating to courts for the trial of small cases. White v. Neptune City, 56 N. J. Law, 222, 28 Atl. 378. By virtue of these provisions the defendant was entitled to a trial by jury, and upon its refusal the justice lost jurisdiction. MacKenzie v. Gilbert, 69 N. J. Law, 184, 54 Atl. 524. The defendant had the option to review this action either by certiorari or by appeal. Ritter v. Kunkle, 39 N. J. Law, 259. He elected to appeal and have a trial de novo. thereby lost his right to review the error of the justice. Robins v. Martin, 44 N. J. Law, 368; Barclay v. Brabston, 49 N. J. Law, 629, 9 Atl. 769; Furman v. Motley, 67 N. J. Law,

He

174, 50 Atl. 606. The first objection urged; to the judgment is therefore without merit.

By the statute (section 14) the affidavit of a violation is declared to be a sufficient demand or pleading. In the present case the affidavit charges, in the language of section 13 of the act, that the defendant needlessly mutilated and killed a dog. The verdict of guilty was a proper verdict. It thereupon, by the provisions of the statute, became the duty of the court to determine the amount of the penalty, which is not to exceed $100, and render judgment for the same with costs. The court, in fact, did so, and fixed the amount at $25, but in form assessed damages át that sum. This is a mere formal error, and may be corrected. Judgment should be entered in this court for $25, which the court below, pursuant to the statute, has fixed and determined as the amount which the defendant shall forfeit and pay. Smith v. Ocean Castle, 59 N. J. Law, 198, 200, 35 Atl. 917. The plaintiff is entitled to costs in this court, as well as in the courts below.

(76 N. J. L. 333)

KAHRMAN v. PENNSYLVANIA R. CO. (Supreme Court of New Jersey. June 8, 1908.) EJECTMENT EVIDENCE.

It appears that the plaintiff, at best, holds title to a locus in quo by a deed from one in possession, whose possession, if tacked to that of the plaintiff, was less than 20 years, and that defendant holds title by a deed from an owner, executed long anterior to the possession of plaintiff's grantor. The verdict for the plaintiff in an action of ejectment is set aside.

(Syllabus by the Court.)

Action by Robert B. Kahrman against the Pennsylvania Railroad Company. Verdict for plaintiff. Rule to show cause why a new trial should not be granted. Rule made absolute.

Argued February term, 1908, before REED, PARKER, and VOORHEES, JJ.

Peter F. Daly and George S. Silzer, for plaintiff. Alan H. Strong, for defendant.

REED, J. This is an action of ejectment to recover possession of a triangular piece of land; the triangle having a base of 1 foot 9 inches on Albany street, New Brunswick, and running obliquely from the street back

out 19 feet to its apex. The question of title involves the easterly boundary of the most easterly of the two adjoining lots, now owned by Mr. Kahrman, the plaintiff, fronting on Albany street. In 1809 a tract, including these lots, belonged to James Parker. On March 8th of that year, Gertrude Parker, the executrix of James Parker, conveyed this larger tract to one Richard Manley. The tract so conveyed was described as: "Beginning on the south side of Albany street where the old stage road to Princeton intersects the same; thence along Albany street south 82° 30" west 4.94 links to the beginning corner of an acre lot conveyed to Ralph Ackley by 69 A.-62

deed dated September 15, 1907." This lot, it is perceived, had a front line on Albany street of 4 chains 94 links, or 3264/10 feet running from the intersection of the old stage road, sometimes known as "French street," its easterly terminus, to the easterly boundary of the Ackley lot, its westerly terminus. In 1813 Richard Manley, the grantee of all this land, conveyed a portion of it to one Henry Hagerman. The part conveyed. was a lot on the extreme west end of the aforesaid tract, and adjoining the Ackley lot. There is little controversy respecting the easterly boundary of the Ackley lot. The surveyors on both sides agree within a few inches respecting the location of that point upon the south side of Albany street. The last-mentioned deed to Hagerman calls for the northeast corner of Ackley's lot, and runs east about 32 feet along Albany street to a lot belonging to Francis Conover. It is further described as containing 32 feet in front and rear. The plaintiff now owns this lot, which will be called "Lot A." The plaintiff also owns the lot adjoining this lot on the east, which will be called "Lot B." The deed from Richard Manley for this lot B is not in evidence; but a deed from some persons named Parsells to one Henry Solomon, made in 1836, appears to have conveyed this lot, and Solomon's title was conveyed to Hagerman in 1842, and from Mary Hagerman to George J. Milleman in 1898, and from Milleman to the plaintiff in 1903. So the plaintiff owns both lots, and he claims that the easterly lot includes the strip now in dispute. It is claimed for him that each of the two lots mentioned has a frontage of 34 feet on Albany street, and it is upon that insistence that it is asserted that the paper title for the triangular strip now resides in the plain. tiff. This results, however, from entirely ignoring the calls for 32 feet in the original deed from Richard Manley to Hagerman on April 1, 1813.

The surveyor for the plaintiff failed to put the boundaries called for in this deed upon his map, because he regarded the description in this deed as "no good." There is, however, no deed for lot A in evidence, save the deed of 1813, which, as already mentioned, distinctly conveys only 32 feet on Albany street, and no subsequent grantee of that lot could convey more, unless he got some other title to the additional land, either by another deed from some other owner, or by adverse possession. Subtracting the 32 and 34 feet, amounting to 66 feet, from the entire frontage of the .original lot, namely 3264/10 feet, it left the northeasterly corner of the plaintiff's easterly lot a distance of 2604/10 feet, from the intersection of Albany and French streets, and it is entirely clear that the locus in quo is within this 2604/10 feet, and not within the 66 feet. Indeed, it is admitted by the plaintiff's surveyor, an important witness, that if lot B has only a frontage of 32 feet, the easterly line of the easterly lot is withdrawn