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Bili by the Trenton Trust & Safe Deposit , The wife of John A. Weart, Jr., died intesCompany, trustee under Theodore Black- tate, leaving Bessie B. Donnelly (neé Weart) well's will, against Bessie Blackwell Don- her only next of kin. Elizabeth Rockwell, Delly and others, for construction of the having married, one Charles Morgan, who will. Will construed.

predeceased her, died intestate in February, James Buchanan, for complainant Wil

1885, leaving a number of children by this liam M. Lanning, for defendants Florence marriage surviving, three of whom are now Blackwell and Emily Blackwell. Alfred M.

dead. Philemon Blackwell died intestate Lafetra, for defendant Bessie Blackwell August 2, 1814, leaving two children, one of Donnelly. Dungan & Reger, for defendant whom (Jacob) died April 1, 1863, before the Jacob Kline, Jr. Frederic M. Pierce, for

death of the testator. The other son (Ephdefendant Morgan.

raim) died August 10, 1888, after the death

of the testator. REED, V. C. Theodore Blackwell made The first question arises between the pera will on October 12, 1872. The fourth, sonal representative of the life tenant and fifth, and sixth clauses are as follows: the remaindermen, and it arises because of.

"Fourth. I give, devise and bequeath to the fact that the corpus of the estate of my said Executors and the survivor of them $20,000, devised in the clauses already disthe sum of Twenty Thousand dollars, in played, has become diminished by unfortuTrust, nevertheless, to invest and keep the nate investments, so that the trustees, instead same invested, and the interest which shall of having in band the sum of $20,000, have accrue thereon less taxes and necessary only the sum of $14,232.51. The corpus of expenses to pay semi-annually to my belov- the estate was secured by a mortgage, which ed wife Sarah I. Blackwell for and during was foreclosed, and the mortgaged property the term of her natural life, or during the was bought in by the trustees, who afterterm she remains my widow which shall wards sold the same for the sum of $16,000, be in lieu of her right of dower in my es- which sum, after paying the expenses of retate.

ducing the same to money, the taxes, and "Fifth. All the rest and residue of my commissions, was, a's already remarked, reestate I give devise and bequeath as follows duced to the sum of $14,232.51. The propto wit, one third thereof to each one of my erty was bought in by the trustees at foretwo sisters Rebecca Weart and Elizabeth closure sale on October 4, 1899, and was Rockwell share and share alike and to their sold by them 15 days later. The life tenheirs forever, and the remaining one third ant was paid interest in full upon the $20,thereof to the heirs of my deceased brother 000, less expenses, down to October 1, 1898. Philemon Blackwell.

Thereafter the trustees paid interest upon "Sixth. At the decease of my said wife the reduced amount that came to their hands or at her marriage, the said sum of Twenty down to the death of the widow, with the Thousand dollars invested for her use exception of $225.06. hereinbefore directed I also give, devise and The question propounded is whether the bequeath as follows, to wit, one third there- executors of the widow are entitled not only of to each of my said sisters Rebecca Weart to this sum of $225.06, but also to the and Elizabeth Rockwell, share and share amount of interest which should have been alike, and if either one or both of my said paid had the corpus of the estate remained sisters should died before receiving the share unimpaired down to the date when the seor shares to them given in this my will, then curity held by the trustees was turned into the lawful heir or heirs of such deceased money. The amount of this unpaid interest sister shall have and take the share of such is admitted to have been $1,144.03. The deceased ancestor, and the remaining one rule which has been laid down in a number third thereof I give, devise and bequeath to of cases respecting the apportionment of a the heirs of my deceased brother Philemon loss occurring under conditions like the presBlackwell."

ent is that the loss shall be apportioned beTestator died without issue November 4, tween the life tenant and the remaindermen 1872. He left, surviving him, his widow, in the proportion that the debt due the first Sarah I. Blackwell, a sister Rebecca Weart, bears to the amount which should come to a sister Elizabeth Rockwell, and two chil- the second, namely, the amount of the corpus dren Jacob Blackwell and Ephraim W. ) of the estate; or, conversely, the amount Blackwell, the children of a deceased broth- realized shall be set apart to the remainderer, Philemon Blackwell. Sarah I. Blackwell, men and the life tenant in the proportion the widow, died July 21, 1902.

that the corpus bears to the unpaid interest The questions propounded are in respect to due the life tenant. By force of this rule the course which the remainder of the legacy the $14,232.51 should be divided in the proof $20,000 shall take, the life tenant being portion that $20,000 bears to $1,144.03. dead. Rebecca, one of the sisters, married But it is insisted that the taxes paid by the John A. Weart. She died July 13, 1888, complainant should be deducted from the life leaving a child, John A. Weart, Jr. By her tenant's share thus ascertained. In my judg. will she left her property to John A. Weart, ment this position is not tenable. I am aware Jr., and her granddaughter, Bessie B. Weart. that Chancillor Magill, sitting as ordinary,

as

did so order in Tuttle's Case, 49 N. J. Eq. in respect to personal property, they will be 260, 24 Atl. 1, where the trustee had paid construed to mean "next of kin." Scudder v. taxes which had been assessed upon real es- Vanarsdale, 13 N. J. Eq. 109; Leavitt v. Dunn, tate intervening the time of the trustee's ac- 56 N. J. Law, 311, 28 Atl. 590, 44 Am. St. quisition of the land and the time of the sale Rep. 402. made of the same by the trustees. Under the In respect to the time when the next of kin conditions presented in that case, he ordi- are to ascertained, I am the opinion nary thought it equitable to deduct these that the gift to Mrs. Rockwell, or in the taxes from the life tenant's share after it | event of her dying before receiving the share had been apportioned according to the rule given to her, she having died before receivalready mentioned. In the present case the ing her share, this sbare goes to her next of tax paid, so far as appears, was not assessed kin ascertained as of the date of her death, upon the property during the time it was held in February, 1885. Gundry v. Pinniger, 14 by the trustees under the title got by them at Beav. 94, 98; Jacobs v. Jacobs, 16 Beav. 557. the foreclosure sale. The taxes were paid as In respect to the gift to the “heirs of my a lien upon the property when it came to the deceased brother Philemon Blackwell,” his hands of the trustees. The property could next of kin is to be ascertained as of the date have been sold subject to this lien, but the of the death of the testator, October 12, 1872. trustees thought it advisable to discharge this Wharton v. Barker, K. & J. 483-488; Phelps lien so as to give an unincumbered title. v. Evans, 4 De G. & S. 188. The payment of the tax was therefore in real- These answers dispose of all the mooted ity one of the expenses incurred in trans- queries propounded in the bill. muting the realty into cash to the best advantage. Nor was the tenant for life bound to pay

(69 N. J. L. 461) taxes upon this property specifically, either

STATE v. CHAPMAN. before or after the right of the trustees to (Supreme Court of New Jersey. June 8, 1903.) enter for breach of condition in the mortgage CONSTITUTIONAL LAW-VESTED RIGHTS-EX accrued. The life tenant was obliged to pay

POST FACTO LAW-REGULATING PRACTICE

OF DENTISTRY-POLICE POWER. the tax upon the corpus, and she was enti

1. The act entitled "An act to regulate the tled, not to the income of this real estate, but

practice of dentistry in the state of New Jerto the income which $20,000, less the taxes, sey, and to repeal certain acts now relating to would produce. Now, if the 5 per cent. upon

the same,

approved March 17, 1898, P. L. this amount, upon the basis of which the debt

1898, p. 119, coupled with the previous legisla

tion on the subject, is not unconstitutional. due the life tenant is computed, is more than 2. The act does not impair vested rights, nor the $20,000 would produce, less taxes, it is it in its criminal provisions an ex post facto would follow that the debt of $1,144.03 is too

law. much. This follows because she was only

3. A calling, business, or profession chosen

and followed is property. The Legislature canentitled to the production 'of the corpus, less not destroy it by statute without providing for the taxes which she was bound to pay. By compensation, any more than it can authorize the provision in the mortgage, these taxes

the taking of real estate for a public use ex

cept upon compensation. were so paid by fixing the interest to be paid 1. The act of March 17, 1898, is not an act by the borrower at a lower rate and binding taking or destroying property, but is a reasonhim to pay the taxes. There is nothing to

able regulation of the practice of dentistry in

this state. show that the corpus would not have pro

5. It is within the power of the state, under duced the 5 per cent, as well as the amount the police power, to impose by statute reasonof the tax up to the time the security was

able restrictions as to registration and the obrealized. By reducing the annual income to

taining of a certificate of authority to engage 5 per cent. the taxes were in fact deducted

in the practice of dentistry, and to make it a

misdemeanor for a person to practice without from the income of the life tenant. In my first obtaining such certificate. judgment, the representatives of the life ten- (Syllabus by the Court.) ant are entitled to share in the corpus in the Error to Court of Quarter Sessions, Cumproportion already indicated, and her share berland County. is not to be diminished by any reduction on

Martin V. Chapman was convicted of account of these taxes.

practicing dentistry without a license, and Another question propounded is whether brings error. Affirmed. the testator, in the use of the word “heirs" in

Argued November term, 1902, before the the fifth and sixth clauses of his will, is to

CHIEF JUSTICE, and VAN SYCKEL, PITbe regarded as intending by that term “the NEY, and FORT, JJ. next of kin of the legatees.” The testator was dealing with property which he had per

Wheaton Berault and Howard Carrow, for

J. Hampton Fithian and emptorily directed to be transmuted by his plaintiff in error. executors from realty into personalty. It

Halsey M. Barrett, for the State. may be regarded as settled in this state that

FORT, J. The defendant was convicted the word “heirs" is interpreted in reference to the kind of property, whether real or per

in the Cumberland county quarter sessions sonal, which the subject of testamentary

1 5. See Physicans and Surgeons, vol. 39, Cent disposition; and, when those words are used Dig. $$ 1, 2

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for practicing dentistry without being legally licensed to so practice in this state.

That the defendant did not have a license to practice dentistry in this state from the State Dental Board was proven at the trial by independent evidence, as well as by the defendant's own admission. The defensa was that the defendant was a practicing dentist in this state in 1872, and has been since that date, and that any statute, which attempts to impose upon him a condition not existent at the time he entered upon such practice is unconstitutional, because it (1) impairs his vested rights and (2) is ex post facto.

It is conceded that there is no justification for the indictment in this case except under section 12 of the act of 1898, entitled "An act to regulate the practice of dentistry in the state of New Jersey, and to repeal certain acts now relating to the same," approved March 17, 1898. P. L. 1898, p. 119. Prior to the passage of the act of 1898 there bad been statutes regulating registration for and the practice of dentistry, but none of these were in force when the indictment upon which the defendant was convicted was found, nor at the date alleged in the indictment as the time when the offense was committed. The act of 1898 expressly repealed all previous acts on this subject. P. L. 1898, p. 128, § 17. If, therefore, the act of 1898 is unconstitutional in the respects alleged, the conviction cannot stand. 'The laws reg. ulating dentistry are of later enactment than those regulating the practice of medicine, but the principles underlying their legality are the same. A statute of West Virginia similar in import to the New Jersey act of 1898, except that it regulated the practice of medicine, was sustained, as a valid exercise of the police power of the state, by the Supreme Court of the United States. Dent v. West Virginia, 129 U. S. 114, 9 Sup. Ct. 231, 32 L. Ed. 623; State v. Creditor (Kan.) 24 Pac. 346, 21 Am. St. Rep. 306; Hockett v. State, 105 Ind. 250, 5 N. E. 178, 55 Am. Rep. 201.

Nor is such legislation ex post facto. Hawker v. New York, 170 U. S. 189, 18 Sup. Ct. 573, 42 L. Ed. 1002. See, generally, text and notes in Am. & Eng. Ency. of Law (2d Ed.) vol. 22, pp. 781, 782, and the cases cited. The Constitution of New Jersey in no wise probibits such legislation in any respect in which it would not be equally interdicted by the Constitution of the United States, unless it can be said that such legislation interferes with the natural and unalienable right of "acquiring, possessing and protecting property" guarantied by article 1, par. 1, of our state Constitution.

A calling, business, or profession chosen and followed is property. Barr v. Essex Trades Council, 53 N. J. Eq. 101, 112, 30 Atl. 881; Slaughter House Cases, 16 Wall. 36, 21 L. Bd. 394. The Legislature can no more destroy a business by statute without providing for compensation, than it can authorize a

corporation to take a piece of real estate for public use except upon compensation. But does the act of 1898 take the defendant's property or calling from him? We do not so construe it or its effect. It is simply a regulation of the use of one's property rights or business, controlling the conditions under which it may be enjoyed or pursued. It is within the power of the state to place reasonable regulations upon the business or calling of any person.

The court, in State v. Creditor, supra, says:

“The power of the Legislature to regulate the practice of medicine, dentistry, or surgery is undoubted; it is an exercise of the police power of the state for the protection of the health and the promotion of the comfort and welfare of the people. It may provide that only those possessing skill and learned in these professions shall be permitted to practice; may prescribe the nature and extent of the qualifications required, and the rules for ascertaining and determining whether those proposing to practice come up to the statutory standard. If the regulations and conditions are adopted in good faith, and they operate equally upon all who may desire to practice and who possess the required qualifications, and if they are adapted to the legislative purpose of promoting the health and wel. fare of the people by excluding from the practice those who are ignorant and incapable, then the fact that the conditions may be rigorous, impolitic, and unjust will not render the legislation invalid." The following cases sustain the rule here declared: State V. State Med. Ex. Board, 32 Minn. 324, 20 N. W. 238, 50 Am. Rep. 575; Hewitt v. Charier, 16 Pick. 353; Eastman v. State, 109 Ind, 278, 10 N. E. 97, 58 Am. Rep. 400; Hedderich v. State, 51 Am. Rep. 768. For 80 years New York has had such a statute, and her courts held it valid. Sheldon v. Clark, 1 Johns. 513. Arkansas has sustained a statute for the regulation of dentistry. Gosnell v. State, 52 Ark. 228, 12 S. W. 392.

The defendant, conceding for that purpose that the act of 1898 was valid, contends that he was practicing dentistry in the state in 1873, and he was by the act entitled "An act to regulate the practice of dentistry and protect the people against empiricism in relation thereto in the state of New Jersey," approved March 14, 1873 (P. L. 1873, p. 52), licensed by the state to practice dentistry by section 9 of that act. This act created a board of examiners, and provided that after its passage it should be unlawful for any person to engage in the practice of dentistry within the state unless such person be graduated and receive a diploma from the faculty of a college, chartered as In the act provided; and by section 9 it was provided as follows: "Nothing in this act shall apply to persons who shall be engaged in the practice of dentistry in this state at the time of the passage of this act.” P. L. 1873, p. 53.

Two supplements were passed to the act certificate of that fact before January 1, of March 14, 1873, one in 1880 and the oth- 1891. This gave parties entitled to so do er in 1884, but neither of these supple- about nine months within which to so do or ments affected the rights of the defendant forfeit their right, except the board for good here to practice his profession under the cause should grant the certificate after Janauthority of section 9 of the act of March uary 1, 1891. This seems an entirely reason14, 1873. The supplements of 1880 and able exercise of legislative powers, and to 1884 are each amendments to section 1 of give a reasonable time for compliance with the act of 1973, and neither can be said to the act to those then engaged in dentistry in repeal, by implication, section 9 of that act. New Jersey. A similar act which gave but Laws 1880, p. 31; Laws 1884, p. 102.

three months for the registration of dentists On April 7, 1890, a general law was en- engaged in the profession at the time of its acted entitled "An act to regulate the practice passage was sustained by the Supreme Court of dentistry in the state of New Jersey." P. L. of Rhode Island. Battles v. Board of Den1890, p. 227. By section 11 of this act the acts tistry (R. I.) 17 Atl. 131. The defendant, adof 1873 and its two supplements of 1880 and mittedly, never registered or applied for reg1884 were expressly repealed, together with istration and certificate prior to January 1, all acts and parts of acts inconsistent with the 1891. act of April 7, 1890. The act of 1890 creat- On March 17, 1898, the act under which the ed the State Board of Registration and Ex- indictment in this case was found was passamination in Dentistry. It made the board, ed. That act may be considered a complete then existing under the act of 1873, the revision of the whole subject, and to superfirst board under the act of 1890. By section sede and take the place of the act of April 3 of the act of 1890 it was provided “that it 7, 1890. By section 17 of the act of 1898, shall be the duty of every person lawfully the act of April 7, 1890, is expressly repracticing, or entitled to practice dentistry pealed. in this state, at the time of the passage of By section 1 of the act of 1898 it is enthis act, to apply to said board, before the acted: “1. The following persons only shall first day of January, 1891, to cause his be deemed licensed to practice dentistry in name, residence and place of business to be this state: (a) Those wbo are now duly liregistered in a book to be kept for that pur- censed and registered as dentists pursuant to pose by the secretary of said board; and the law, and (b) those wbo may hereafter be dusaid board shall issue to each person register- ly licensed and registered as dentists pursued by it, a certificate under its seal and the ant to the provisions of this act.” hand of its president and secretary, setting Section 12 of the act reads as follows: forth that such person was, at the time of "12. Any person, company or association, the passage of this act, lawfully entitled, practicing or holding himself or. Itself out to by the laws of this state, to practice dentistry the public as practicing dentistry, not being and is duly registered; the said board, for at the time of said practice or holding out good cause shown, may register and issue legally licensed to practice as such in this its certificate thereof to any person applying state, shall be guilty of a misdemeanor and therefor after said first day of January anno punishable upon conviction of a first offense domini, one thousand eight hundred and by a fine of not less than fifty dollars, and ninety-one; provided, it shall appear to the upon conviction of a subsequent offense, by satisfaction of said board that the person so

a fine of not less than one hundred dollars, applying was lawfully practicing or entitled or by imprisonment of not less than two to practice dentistry at the time of the pas- months, or by both fine and imprisonment." sage of this act, and that the refusal to The defendant failed to register and take issue such certificate will work hardship out his certificate from April 7, 1890, to to said person so applying; the said board March 14, 1898, and he was not entitled to may demand from any person applying for practice dentistry in this state, under secregistration and certificate, 'proof of his right tion 1 of the act of 1898, when the indictto the same under this act, and may refuse went upon which he was convicted was found to grant registration and certificate thereof in May, 1902. to any person not lawfully entitled thereto." There were some exceptions to testimony By section 4 any person refused registration offered in this case, and the rulings of the might apply to the Supreme Court to com- trial court thereon, but we have found no pel the board to register him and issue a errors therein. certificate. By section 9 of the act it is made The judgment of the Cumberland county unlawful under a penalty for “any person quarter sessions is affirmed. now (then) lawfully practicing or entitled to practice dentistry under the laws of this

(69 N, J. L. 541) state, to practice dentistry after January 1,

ZELIFF ». NORTH JERSEY ST. RY. CO. 1891, without having first obtained the certificate of registration under the act.” The

(Supreme Court of New Jersey. June 8, 1903.) effect of the act was to require all persons

STREET RAILROADS-INJURY TO PASSENGER

-EVIDENCE-NONSUIT. entitled to practice, or practicing at that time,

1. A motion to nonsuit having been based April 7, 1890, to register and take out a solely upon the ground of contributory negli

gence, the question of the absence of evidence were based solely upon the ground that the of negligence on the part of the defendant is plaintiff, being a passenger upon the street not open for consideration upon error. 2. Plaintiff, while seated in a street car with

car, voluntarily placed himself in a position bis arm resting upon the frame of an open win- of danger-a matter that was fairly in disdow, was injured in a collision between the car pute upon the evidence. The motion did not and a part of the load of a passing wagon which overhung the side of the wagon and

raise the question of the absence of evidence struck the plaintiff's arm. The trial judge in

of negligence on the part of the defendant's structed the jury, in substance, that, if any motorman, and that question, therefore, is part of the plaintiff's arm protruded beyond the

not open for consideration here. Trade Ins. line of the car, and but for this fact he would not have been injured, then the plaintiff had

Co. v. Barra cliff, 45 N. J. Law, 543, 46 Am. failed to establish negligence on the part of the

Rep. 792; Garretson V. Appleton, 58 N. J. defendant company, and the verdict must be Law, 386, 37 Atl. 150; Ottawa Tribe v. in favor of the defendant. Held unnecessary

Munter, 60 N. J. Law, 459, 38 Atl. 696. for the judge to go further, and charge the jury that the position suggested for the plain

One of the plaintiff's witnesses--Minnie tiff's arm evidenced vegligence on his part. Krauss-who was a passenger upon the car (Syllabus by the Court.)

with the plaintiff and his wife, upon her di. Error to Circuit Court, Essex County.

rect examination testified solely with respect

to what she saw of the occurrence at and beAction by James Zeliff against the North Jersey Street Railway Company. Judgment

fore the time when the plaintiff was injured, for plaintiff, and defendant brings error.

Af.

and with respect to a scraping sound that she firmed.

said was heard by her as the car passed by Argued February Term, 1903, before GUM.

the wagon and barrels. She mentioned no MERE, C. J., and HENDRICKSON and

conversation had by her with the plaintiff PITNEY, JJ.

and his wife, nor anything said in the plain

tiff's hearing by any one. Upon cross-exChauncy H. Beasley, for plaintiff in error.

amination she said that she had held no conSamuel Kalisch, for defendant in error.

versation with the Zeliffs. Later she was

asked in cross-examination whether, after the PITNEY, J. Plaintiff was a passenger up- occurrence, the plaintiff's wife, or somebody on a street car operated by defendant com- else who was there present, did not say to pany, and alleged that while the car was pro- the plaintiff that he ought not to have put his ceeding rapidly the motorman negligently arm out of the window, and would not have permitted it to come into collision with a been hurt if he had not done so. Objection wagon loaded with empty barrels. His in- being made, the question was excluded by sistment was that the barrels overhung the the trial court on the ground that the supside of the wagon, and that in the collision posed statement, having been made after the the barrels grazed the side of the car; that

occurrence, was not a part of the res gestæ, he was sitting with his elbow resting upon and, although admissible on the ground that the frame of one of the windows of the car, a statement made in the presence of the the window being open; that one of the bar- plaintiff, and not contradicted by him, would rels was crowded into the open space of the amount to an admission against his interest, window, caught the plaintiff's sleeve, and, the question was not to be permitted upon by driving his elbow forcibly against the cross-examination, but should be offered by side of the window frame, broke the arm. the defendant as a part of its own case. For the personal injuries thus received plain- This ruling, we, think, was correct. The tiff recovered a verdict and judgment below. question excluded was not admissible as Defendant asks reversal for alleged trial er- cross-examination of this witness. rors, evidenced by bills of exceptions.

The remaining exceptions relate to the reCounsel for the plaintiff below was per. fusal of certain of the defendant's requests mitted, against objection, to illustrate his to charge. Of the requests so refused the opening remarks to the jury by showing to only ones that were well founded in law, and them an object said to be a model of the

that were at all pertinent under the evidence window at which the plaintiff was sitting at in the case, were sufficiently covered by the the time he was injured. The use of such an instruction given to the jury, to the effect object for purposes of illustration was fairly that the motorman had the right to assume permitted by the trial judge as a part of the that no part of the person of the passenger plaintiff's opening, although the object had would protrude beyond the lines of the car; not yet been proved to be a faithful repre- and that, if the evidence satisfied the jury sentation of the car window. The court, up- that the plaintiff's elbow, or any part of his on overruling the objection, offered to in- arm, protruded beyond the line of the car, struct the jury in such a manner as to pre- and that but for this fact the accident would vent wrong from being done to the defendant not have happened, then the plaintiff had from the use of the so-called model, but no failed to establish negligence upon the part request for such instruction seems to have of the defendant company and the verdict been afterwards preferred.

must be in favor of the defendant. This was The trial court properly refused the motion sufficiently favorable to the defendant. As to nonsuit, and the motion to direct a verdict the judge charged the jury that the position in favor of the defendant. These motions suggested for the plaintiff's arm absolutely

55 A.-7

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