1

and Frederick K. Fish. The suit was proper-stock. Fish admits that he suggested to Harly brought, as was decided in an opinion filed rison the purchase of the stock by him, and by the Chancellor when sitting as a Vice that he consented that the excess above par Chancellor; it being a well-settled rule that of $20 a share, which the stock cost, could a stockholder, desiring relief by way of in- be charged off to the expense account of the junction or accounting for the misconduct of company. Harrison produced evidence showthe officers or directors, misappropriation of ing an entry, "A. Gould Harrison, $2,000.00," the property for their private advantage, is on the stub of the company's check book as not, in all cases, compelled to first ask the of September 19, 1906, and his own paid corporation to sue, and on its refusal insti- check for this amount to the order of the tute suit, making the corporation a party. company. The books of the bank were produced, and they showed the debit of this amount against Harrison's individual account, and its credit to the company's account. The expert accountant for the complainant admitted in the testimony before the master that there did appear on the check stub, on the date in question, a deposit which included Harrison's check of $2,000.

[3, 4] If there were a single share of stock held by a person who had not given his consent to the charging off of these overdrafts made by A. Gould Harrison, I should not hesitate to set all the transactions aside; but the Beyea stock has been sold to A. Gould Harrison, and they, therefore, cannot complain, and as I find that Mr. Fish consented to the crossing off of the overdrafts, he is estopped, and there is no one else to complain, as the wife of A. Gould Harrison has stood shoulder to shoulder with her husband. Of course, this conclusion depends upon my finding that the Beyea stock was purchased by Mr. A. Gould Harrison with funds belonging to him, which I may say is the conclusion that I have reached.

The bill and the proofs show that from the year 1907, the date of the acquisition of the Beyea stock by A. G. Harrison, the complainant, Fish, owned 40 shares of the capital stock of the Harrison Milling Company, defendant A. G. Harrison owned 24 shares, and defendant A. L. Harrison 16 shares. These three stockholders were also the only directors of the corporation. Ida M. Beyea owned 15 shares of stock for three or four years prior to 1907; they having come to her from the estate of her father, Hugh Mullen. These 15 shares of stock were purchased by A. G. Harrison in February, 1907, and any rights or claims against the corporation that Mrs. Beyea may have had passed to the purchaser upon the transfer of her stock. She has not complained, and cannot complain, because she is not a stockholder. This 15 shares was purchased by A. Gould Harrison with the check of the defendant the Harrison Milling Company; he claiming that he sold his house and lot in Caldwell to his brother for $2,000, which he then loaned to the company and deposited to the credit of the company in the Bank of Montclair. In my opinion in Fish v. Harrison, 83 N. J. Eq. 533, 91 Atl. 325, I there stated:

"I feel satisfied that the brother of the defendant has told the truth about his part in the transaction."

The wife of A. Gould Harrison testifies that she and her husband told Mr. Fish of the proposed sale of their Caldwell home for the purpose of getting funds to buy the stock, and that Fish was told of the sale, and of the fact that the money had been put in the business until they could get hold of this

The manner in which a record of this loan was kept was by means of tickets or slips. Slips of paper, termed "tickets," were kept in the cash drawer. Upon these were placed cash receipts and payments, instead of immediately placing them in the cash book. A loan would be made to the company and entered on a ticket. Upon repayment of the loan, the ticket would be destroyed. Harrison testifies that when he obtained the cash from the sale of his house the company was a little short of funds, and as he did not know how soon he could get the Beyea stock he loaned the money to the company, depositing it in the company's bank account until he had completed negotiations for the purchase of the stock. He further testifies that Coleman made an entry of this $2,000 credit upon a slip, the slip was put in the drawer, and that he (Harrison) saw the slip. The whole matter of the stock purchase was gone into, and after the purchase of the Beyea stock for $1,500 the $500 still owing from the company to Harrison was left on the ticket as a credit, and subsequently repaid to Harrison. I am satisfied that the loan was made, and that $1,500 of it was used in the purchase of the Beyea stock. I shall advise a decree in accordance with these views.

An indictment, charging defendant as a principal in causing an abortion and proof of his aiding and abetting supports a conviction, all participating being principals in a misdemeanor case, and the indictment charging according to the legal effect of the offense. and Information, Cent. Dig. §§ 540–543.] [Ed. Note.-For other cases, see Indictment 2. CRIMINAL LAW 1169(5)-RECEPTION OF EVIDENCE-STRIKING OUT EVIDENCE.

To meet objection to part of testimony as going outside indictment, it is enough for the

court to state that he will strike out such part asked to set aside this conviction is that the as incompetent.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 3141.]

3. INDICTMENT AND INFORMATION

CEPTION OF EVIDENCE.

171-RE

indictment charged him with being a principal in the production of the abortion, whereas the proofs showed that he merely aided and abetted therein. But it has already been On trial under an indictment charging two decided by the Court of Errors and Appeals offenses, testimony competent as to one, though that these facts do not render a conviction not as to the other, is not objectionable. illegal, in the case of State v. Wilson, 80 N. [Ed. Note.-For other cases, see Indictment J. Law, 467, 78 Atl. 144. There the indictand Information, Cent. Dig. §§ 536, 537, 549.] ment charged the defendant with the use of 4. CRIMINAL LAW 1172(8)—HARMLESS ER-instruments to procure a miscarriage; the BOR-INSTRUCTION AS TO INDICTMENT.

The proofs showing defendant aided and abetted, and this authorizing a conviction under the indictment charging commission of the offense, instructing that the indictment charged

aiding and abetting was harmless.
[Ed. Note. For other cases, see Criminal
Law, Cent. Dig. § 3161.]
5. CRIMINAL LAW
INTENTION.

772(5)—INSTRUCTIONS

The language in an instruction, "Did he aid and abet by any means whatsoever?" conveys no impression that defendant may be convicted though he was innocent of any intention to bring about a violation of the law.

question was whether, under this indictment, he could be convicted if he did not actually participate in the use of the instruments, either by being present aiding and assisting, or by being in a position where he could give

direction as to the use of the instruments. The court held that in a case of misdemeanor, where all are liable as principals, the defendant may be convicted under an indictment charging him with the actual commission of the criminal act, although he was not personally present, and would in a case of a common-law felony be liable only as an accessory; the reason being, as the court 823(15)-INSTRUCTIONS-states, that such an indictment charges the

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1816.] 6. CRIMINAL LAW

SUFFICIENCY OF EVIDENCE.

Language used to eradicate from the minds of the jury the erroneous instruction to convict if the jury find "by the weight of the evidence": "Of course, you will keep in mind what I said first; if you find he did this thing by the weight of the evidence, beyond a reasonable doubt, you should find him guilty. I have already emphasized to you he is entitled to the benefit of all reasonable doubt"-made it sufficiently clear that the jury would not be justified in convicting unless the weight of the evidence was so preponderating as to satisfy them beyond a reasonable doubt.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1992-1994, 3158.] 7. CRIMINAL LAW

defendant according to the legal effect of the offense, and therefore the defendant is, in legal effect, guilty of using the instrument for the criminal purpose.

[2, 3] Next it is contended that the state, over objection, was permitted to introduce in evidence the details of an alleged rape committed by the plaintiff in error on the said Bella Marano three months before the abortion, thus introducing evidence of an entirely independent crime. The testimony objected to was the statement of the witness that on the occasion of her first intercourse with the defendant, he took her upstairs in a room in his house where there was a mattress and two chairs and said to her, "If you don't do as I tell you I will shoot you," and at the same time took a big revolver out of his back pocket, and then threw her down and lifted up her clothes. The ground of the obError to Court of Quarter Sessions, Hud-jection was that the state had no right to son County.

824(5)—CAUTIONARY INSTRUCTIONS-NECESSITY OF REQUEST. In the absence of a request, there is no duty to charge the jury to dismiss from their minds testimony which the court has struck out on objection.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1999.]

show the details of this occurrence, except as

Michael Riccio was convicted, and brings they showed a motive for the crime charged error. Affirmed.

Argued November term, 1916, before GUMMERE, C. J., and TRENCHARD and BLACK, JJ.

Horace L. Allen, of Hoboken, for plaintiff in error. Robert S. Hudspeth, Prosecutor of the Pleas, and George T. Vickers, Asst. Prosecutor, both of Jersey City, for the State.

GUMMERE, C. J. The defendant was convicted upon an indictment charging him with causing an abortion upon one Bella Marano by the administration of drugs and the use of instruments. The indictment also contained a count charging him with an assault and battery upon the Marano woman.

[1] The first ground upon which we are

in the indictment, and that showing that "he brandished a weapon, is going outside of the indictment." The court thereupon said:

"I will strike out this last part as not being competent to this issue, that is, that he threatened her with some weapon."

We think that the action of the court was sufficient to meet the objection as specified by the defendant's counsel, even upon the assumption that the testimony was incompetent. The contrary, however, is the fact, for the indictment not only charges abortion, but, as has already been stated, the crime of assault and battery, and the testimony was, of course, competent in proving this latter offense.

[4] Next it is complained that it was re

on the occasion of his sexual intercourse with the Marano woman, it was under a legal duty to charge the jury to dismiss that matter wholly from their minds, or in some proper manner to impress upon them that this illegal testimony was not evidential in the case. It is enough to say, in disposing of this ground of reversal: First, that no request for such an instruction was submitted on behalf of the defendant; and, second, that the testimony stricken out was in fact competent in support of the count in the indictment charging the defendant with the crime of assault and battery. On the whole case we conclude there should be an affirm

versible error for the court to instruct the | having admitted in evidence the illegal testijury that the indictment charged the defend-mony with relation to the threats made by ant with aiding and abetting in bringing the defendant as to the use of a revolver upabout an abortion upon the Marano woman. If an indictment which charges a person with being a principal in the bringing about of an abortion upon the body of a pregnant woman is sustained by proof that such person aided and abetted in bringing about that result, it is not unreasonable to hold that such an indictment, by implication, embraces in its charge such aiding and abetting. But assuming that it does not, and that the trial court erred in the statement complained of, manifestly no harm could have come to the defendant in instructing the jury that the indictment charged him with being guilty of an offense which the proofs showed him to have committed, and which justified his con-ance. viction on the indictment upon which he was being tried.

[5, 6] Next, it is contended that the court erred in the following instruction to the jury:

"It is for you to say whether this defendant did the thing named in the statute. Did he aid and abet by any means whatsoever with the intent of bringing about an abortion on this young woman? If he did, and you find it by the weight of the evidence in this case, your clear duty is to bring in a verdict of guilty."

First, it is contended that the language used, “Did he aid and abet by any means whatsoever?" gave the jury to understand that, even if the defendant had been entirely innocent of any intention to bring about a violation of law, they might nevertheless find him guilty. It is enough to say that a reading of the whole charge satisfies us that it would have been impossible for the jury to have received any such idea from the language complained of. Nor do we think that the excerpt which is made the subject of the present objection, standing alone, conveys any such impression. As to the latter part of the instruction, that if the jury found by the weight of the evidence that he did so aid and abet it was their duty to bring in a verdict of guilty, the attention of the court was immediately called to this slip, and it added the following to the instruction:

"Of course, you will keep in mind what I said first; if you find he did this thing, by the weight of the evidence, beyond a reasonable doubt, you should find him guilty. I have already emphasized to you he is entitled to the benefit of all reasonable doubt."

Although the language used for the purpose of eradicating the erroneous instruction from the minds of the jury is not of the happiest, still we think it made it perfectly clear to the jury that they would not be justified in finding that the defendant did aid and abet in the bringing about of the abortion, unless the weight of the evidence was so preponderating as to satisfy them upon this point beyond a reasonable doubt.

SUPREME LODGE, K. P.,
(No. 19.)

(87 N. J. Eq. 342) V. RUTZLER.

(Court of Errors and Appeals of New Jersey. March 5, 1917.)

(Syllabus by the Court.)

1. TRUSTS 140(1)-"DRY TRUST"-POSSESSION OF PROPERTY.

In the case of a simple or dry trust-i. e.. one in which the nature of the trust is not

qualified by the settlor-the cestui que trust has the right to be put in actual possession of the property.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. § 183.

For other definitions, see Words and Phrases,
First and Second Series, Dry Trust.]
2. EXECUTORS AND ADMINISTRATORS 45
POSSESSION OF TRUST-REPRESENTATIVE OF
CESTUI QUE TRUST.

In the case of a simple trust, if the cestui que trust die before taking possession, the right of possession in the case of personal property passes to the personal representative.

[Ed. Note.-For other cases, see Executors and

Administrators, Cent. Dig. §§ 296, 307.]
3. TRUSTS 43(2)-PAROL EVIDENCE.
to be completely and clearly declared by a writ-
Where a trust of personal property appears
ing to which the settlor was a party, parol evi-
dence is inadmissible to vary or defeat such
declaration.

[Ed. Note.-For other cases, see Trusts, Cent.
Dig. §§ 63, 64.]
4. INSURANCE

773-MUTUAL BENEFIT INSURANCE-BENEFICIARY RIGHTS.

The oral declarations of the holder of a benefit certificate in a mutual benefit association are inoperative to confer beneficiary rights therein, in the absence of any element of contract.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1939.]

5. INSURANCE 796-MUTUAL BENEFIT IN

SURANCE-PAYMENT-PARTY.

R. as trustee for L., who died after the holder A death benefit certificate was payable to of the certificate, but before R. collected the money thereon. Held, that the society properly paid the money to the administratrix of L., and was entitled to enjoin a suit at law by R.

for the money.

[Ed. Note.-For other cases, see Insurance, [7] Lastly it is contended that, the court Cent. Dig. § 1975.]

Appeal from Court of Chancery.

Bill by Supreme Lodge, Knights of Pythias, against Lillian M. Rutzler, trustee. From a decree of the Court of Chancery (98 Atl. 836), granting an injunction against the prosecution of a suit at law, defendant appeals. Modified and affirmed.

Frank G. Turner, of Jersey City, for appellant. McDermott & Enright, of Jersey City, for appellee.

PARKER, J. The suit would be essentially one of interpleader, except for the fact that complainant before filing its bill had already paid over the fund to one of the claimants and sought by the bill to be protected in that course, and to secure an injunction against the further prosecution of a suit at law by the other claimant.

ant to Florence or her appointee. Upon the death of Florence, her personal representative became vested with the same jus habend! that Florence had in her lifetime; and as the Vice Chancellor very properly said, if the complainant had paid the money over to the trustee, there was nothing for the trustee to

do but to turn it over to the administratrix. As the complainant wished to settle the ques

tion who was the beneficial owner of the fund as distinct from the purely legal owner, the litigation was properly transferred into the Court of Chancery by filing the bill, and properly retained there for the settlement of this equitable question; and the award of an injunction against proceeding further with the action at law was a remedy incidental to the nature of the case and the jurisdiction of the court.

[3] It is urged, however, that the trust was not wholly as expressed in the benefit certificate, but that in the contingency of Florence's death even after his own, it was intended by her father that it should go to the two sisters, Lillian and Emily, in equal

shares.

The fund was the proceeds of a death benefit certificate issued by the complainant to Henry B. Lupton in his lifetime. At the time of his death it was payable to "his daughter Lillian M. Rutzler as trustee for his daughter Florence S. Lupton." Florence survived her father, but died before the monThe documentary proof shows that the first ey was paid, and this raised the question benefit certificate was payable to Lillian and whether Lillian, as "trustee," was entitled Emily equally. This was in 1899. In Janto the money, or Florence's mother Anna, uary, 1906, deceased applied in conformity who had taken out letters of administration with the rules, for a change of beneficiary, by of Florence's estate. The complainant final-surrendering the certificate, and requesting a ly paid the money to Anna, as administra- new one payable to "Lillian M. Rutzler trix, and upon Lillian bringing an action at law against complainant on the certificate, filed this bill for an injunction, making the administratrix also a party. On final hearing an injunction was awarded, and Lillian appeals.

[1] We are of opinion that the Court of Chancery properly enjoined the suit at law. On the face of the certificate the trust was a "dry" or passive one. The characteristics of such a trust are so elementary that in all the range of our reported equity decisions I do not find, and counsel do not appear to have found any direct adjudication of them. In Cooper v. Cooper, 36 N. J. Eq. 121, 123, they are described incidentally by Chancellor Runyon, quoting from Lewin on Trusts, 21 (8th Ed. *18). In Rosenbaum v. Garrett, 57 N. J. Eq. 186, 41 Atl. 252, the disposition of the fund turned on whether the trust was to be held active or passive; and Vice Chancellor Reed (57 N. J. Eq. on page 194, 41 Atl. 252) held that if the trust was passive (i. e., if the trustee had no active duties to perform in respect to the trust estate), he could be called on to convey it to the cestui que trust or her appointee. See, also, Perry on Trusts, § 18, section 520 et seq., and 39 Cyc. 30, where the classification of trusts into "simple" and "special" is dealt with as synonymous with passive (or dry) and active.

[2] As the trustee of a passive trust, the sole duty of Lillian after her father's death and in the lifetime of the sister was to act as a conduit of the money from the complain

(daughter) as trustee for Florence S. Lupton (daughter)." This was done, and the new certificate issued under date of Februray 17, 1906. Florence was then 13 years old, and the desirability of a trustee to hold legal title to the money in case of her death was obvious. She was 18 when her father died in February, 1911, and still disqualified to deal legally with her property.

of the sisters is their own oral testimony. The only evidence in support of the claim We think it was not competent to contradict and believed, it was ineffective to impress a or vary the express trust; that if competent trust on the fund, but merely indicated a testamentary intention not legally executed; and that in any case when read in connection with the other conceded facts, it does not indicate that the father contemplated the money passing to Lillian and Emily except in the event of Florence's death before his

own.

[4] As to the competency of the testimony (which was duly objected to) we take the rule to be that, while in cases of trusts of personal property to which the statute of frauds does not apply, they may be proved by parol, and if indicated by a writing, the writing may be supplemented by parol proof where it is vague or incomplete (Eaton v. Cook, 25 N. J. Eq. 55); yet if there is a writing_complete on its face, it cannot be varied or contradicted by oral evidence (Perry on Trusts, § 76; Peer v. Peer, 11 N. J. Eq. 432,