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and it appeared by the testimony of the sur ed into it. The ordinance under which this veyor who did it that the street was actual work was done is in part as follows: ly laid out on the ground in the year 1871.
“An ordinance to construct pipe sewers in I think there is no question but that there
certain of the streets and highways of the was a dedication as is claimed by the city;
village of South Orange in the county of but a mere dedication without acceptance is
Essex, to be connected with the joint insufficient to charge the dedicated land with
trunk or outlet sewer. a public use and with public liability. Mr.
"Section 1. That there shall be constructed Justice Lippincott in N, Y. & L. B. R. R. Co.
and laid public sewers in the village of v. South Amboy, 57 N. J. Law, 252, 30 Atl.
South Orange in accordance with the maps, 628, says: “Whilst the fact of dedication may be clear as against the owner or those
profiles, plans and specifications submitted
by Alexander Potter, which plans have been claiming under him, yet there must exist on
heretofore adopted and were filed in the ofthe part of the public a ratification or accept
fice of the village clerk on the 30th day of ance evidenced by some authorized formal
July, 1902, such sewers to be of the dimenmunicipal act or a public user. The public
sions and in the streets and highways be acquired no rights, nor is it subject to any
tween the points following.” burdens by reason of the dedication, unless it be by some formal act of acceptance or Then follows a list of the streets to be by unequivocal public user." Trustees v. sewered, including “Clark street from West Hoboken, 33 N. J. Law, 13, 97 Am. Dec. 696; Turrell avenue to Montrose avenue 8 and 10 Holmes V. Jersey City, 12 N. J. Eq. 299; inch." Booraem v. N. F. C. R. Co., 12 N. J. Eq. 465. This action appears to me to be a most
The city claims that the village did ex complete and efficient acceptance of the ded. ercise unequivocal municipal authority by Ication of the lands in question, and, wbile formal municipal acts over the property in it may possibly be argued that this holding question to a sufficient extent to warrant may not affect the rights of the village of the finding of an acceptance; in short, that South Orange in other litigations because it there was an acceptance of the dedication.
is not a party to this suit, it can be made the It appears that a private corporation erected foundation of a decree which shall be decisive a street light within the limits of the street, of the rights of the parties now before the the maintenance of which was paid for by court. It is useless to speculate in regard to the village. This, however, under the opin the position that the village might have takion of Vice Chancellor Emery in Robertson en if the complainant had made it a party v. Meyer, 59 N. J. Eq. 370, 45 Atl. 983, would to this suit. It might, and I think probably not be sufficient to justify the conclusion of would, have admitted that the act in quesan acceptance. Neither do I think that the tion was an acceptance of the dedication. failure of the village to tax the land as The question as to what particular municiprivate property is any evidence of accept- pal action will be sufficient to eyince an ac ance, because it may well be, as was said ceptance of a dedication has not often been by the complainants' counsel on the argu decided in our state. I think, however, that ment, that the valuation of the abutting so important a municipal act as the construc land for purposes of taxation included the tion of a public sewer by proper municipal value of the land within the lines of the so authority at the expense of the municipality called street; nor is the somewhat limited in a dedicated street connected with the mu. user by the public standing alone a suffi nicipality's general system of sewers must cient fact from which to infer an acceptance be held to be an acceptance of the dedica. which would bind the municipality. Its tion of the street through which it is con. public use resembles very much the use of structed. In People's Traction Co. V. Atlan. Henry street in South Amboy described in tic City, 71 N. J. Law, 134, 57 Atl. 972, It Mr. Justice Lippincott's opinion above refer was claimed that Atlantic City had no right red to, which was thought by the Supreme to grant permission to a street rallway to Court to be insufficient evidence of an ac lay its tracks and maintain its overhead conceptance.
struction in certain streets within its boundBut it appears that in the year 1902 the aries, because the streets were not dedicated village, in the exercise of its municipal pow and accepted streets. Mr. Justice Garretson, er, constructed a sewer through the so-called speaking for the Supreme Court, says: “We street, which extended from West Turrell think the evidence shows that the streets avenue northerly to the Orange city line, were dedicated by the filing of maps and and in front of the lands of the complain sales of lots upon them, and were accepted ants, which was paid for by the village, and by the city by resolution accepting them, was laid in connection with similar sewers and also by the passage of this very ordiin other streets in pursuance of a general nance in which provision is made for their plan for the drainage of the village, and improvement by paving.” If the paving of tbat a majority of the owners of property a dedicated street as a condition of permisalong the so-called Clark street have con sion to a street railway compapy to use the ziected their properties with the sewer, and street for its purposes is sufficient evidence that sewage therefrom is now being discharg. I of an acceptance, then certainly the paving
of the street directly by the city would be still stronger evidence; and I fail to see any distinction in the character of the munici'pal use between the paving of a street and the construction of a sewer in it. If one would be an acceptance, the other would be likewise. The particular subject-matter was decided by the New York Court of Appeals in Re Hunter, 163 N. Y. 542, 57 N. E. 735. There Hunter in his lifetime dedicated Rawson street. The tender of the dedication was open for many years, and was not accepted by the city. On May 16, 1898, upwards of 20 years after the dedication had been tendered, the city passed an ordinance providing for the construction of a sewer through certain streets, and, among others, along the center of Rawson street; the particular phrases in the ordinance relating to that street being “along the center of Rawson street," "from center line of Rawson street,” “thence southerly along Rawson street,” “the continuation of Rawson street," "for that portion in Rawson street and its northerly continuation." In relation to this state of facts Judge Vann says: “We think thie ordinance was an acceptance of the street, and that upon its approval by the mayor two days after its passage Rawson street became a public highway, even if it had not become so before. We do not pass upon the effect of the first map prepared and filed by Mr. Hunter, his numerous conveyances of land with reference to it, the action of the city authorities in naming the street and constructing a cross walk in it, the public user, the change in 1875, and the acquiescence of all concerned therein. We place our decision upon the tender of dedication by Mr. Hunter in his lifetime, continued without interruption by the present owner for years after his death, and the acceptance of that tender when still in full force by the ordinance of May 16, 1898. Without reference to the earlier history of the street, we think this tender and acceptance were sufficient of themselves, independent of any other fact, to make Rawson street a lawful and irrevocable highway.” To the same effect is Philadelphia v. Thomas, 152 Pa. 494, 25 Atl. 873. There the court said: “The proper city authorities entered upon the land dedicated to the public use as aforesaid, constructed the sewer therein, and filed the liens. Those unequivocal acts were clearly an acceptance of the dedication and an unqualified recognition of Reed street as an open highway of the city. 'They were just as effectual and conclusive as if an ordinance to open bad been passed and damages had been assessed and paid. While the city was not bound to accept the dedication and forthwith take charge of the street as a regularly opened highway, it had an undoubted right to do so whenever in the judgment of
councils the public interests would be thereby promoted. The action that was taken necessarily implied an acceptance of the dedication. It was not susceptible of any other construction." See, also, People v. Loehfelm, 102 N. Y. 1, 5 N. E. 783.
If there could be any doubt about the efficiency of the acceptance of the dedication by the construction of the sewer, I think the question is set at rest by the agreement between the city and village of July 2, 1906, by which the village gave to the city permission to lay its water pipes through the village streets. This agreement recites a request made by the city for consent to the laying of a water pipe line through certain streets in the village according to a plan therewith submitted. It grants the consent and provides in detail for the manner in which the work shall be done. Attached thereto is a map which shows the location and boundaries of Clark street, the line of the water pipes in front of the land of the complainants therein, and on that side of the street nearest to their premises the whole length of Clark street from West Turrell avenue northward to the Orange City line. The agreement provided that the city shall pay to the village the sum of $1,500 for the privilege of using the streets and highways delineated on the map for the construction of its pipe line. We must assume that this agreement was made upon due consideration by the properly constituted municipal authorities in accordance with the statute (Laws 1906, p. 512, c. 239), and that the same is a binding agreement on both corporations. It contemplates a single consent to the laying of an uninterrupted line of water pipes through undoubted public places for a valuable money consideration. In my opinion it is an express recognition of the public character of Clark street and irrefutable evidence of an acceptance of the dedication. People's Traction Company V. Atlantic City, supra. The village claims that, under its charter (Laws 1872, p. 1227, c. 527, 88 43, 44), this street cannot be foisted upon it except by an ordinance specially devised, drawn, and adopted for the acceptance of the dedication. It is indeed true that these sections provided for acceptance of dedication in a particular manner, but I find nothing in them which excludes the common-law methods. If, however, the common-law methods are excluded, the Atlantic City and Hunter Cases above cited would be authority for holding that the ordinance for the construction of the sewer, and the municipal permission to lay the water pipe would meet the requirements of the above-mentioned sections of the charter. See the motion to reargue the Hunter Case in 164 N. Y. 365, 58 N. E. 288.
I will therefore advise a decree dismissing the bill.
(72 N. J. Eq. 725) PATERSON GENERAL HOSPITAL ASS'N
v. BLAUVELT et al. (Court of Chancery of New Jersey. April 6,
1907.) 1. WILLS - LEGACIES-PROPERTY SUBJECT TO PAYMENT.
Where a testator follows bequests of pecuniary legacies with a general residuary clause, the legacies are charged upon the entire residuary estate, real and personal, and remain so charged until paid; the lien upon the realty being not contingent upon the insufficiency of the personalty at the testator's death or at the final accounting, and it being immaterial that the legacies fail of payment out of the personalty because it has been wasted, embezzled, misappropriated, or destroyed. 2. SAME-ENFORCEMENT-LACHES.
A legatee was not barred by laches in 1906 from suing to enforce its lien upon the residuary realty, where testatrix died May 6, 1892, and January 5, 1899, the legatee obtained a decree requiring the executor to pay the legacy and he refused to pay it on the ground he bad no assets in his possession.
[Ed. Note.-For cases in point, see Cent. Dig. vo), 49, Wills, $ 2133.] 3. EXECUTORS — LEGACIES — PRESUMPTION OF PAYMENT.
A presumption of the payment of a legacy does not arise until after 20 years from the accrual of the right to it.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, § 1861.]
Bill by the Paterson General Hospital Association against Jacob H. Blauvelt, executor, John Clough, and others. Defendant Clough demurs to the bill. Decree overruling the demurrer advised.
Hannah Grundy died on the 6th day of May, 1892. By her will, which was duly probated in the orphans' court of Passaic county, she bequeathed general pecuniary legacies aggregating $12,400, and then gave, devised, and bequeathed all the rest, residue, and remainder of her estate, real and personal, wheresoever situate, or of whatsoever the same might consist, to her cousin John Clough, and appointed Jacob H. Blauvelt sole executor. Among those to whom pecuniary legacies were bequeathed was the coniplainant, whose legacy was $4,000. The will was admitted to probate, and letters testamentary were issued to Blauvelt, the executor. The testatris died possessed of personal property and real estate; the inventory of the personal property amounting to $15,414.35. On the 31st day of December, 1896, the executor, by his final account duly allowed by the orphans' court of Passaic county, showed that he had paid all of the legacies bequeathed in the said will, except the sum of $1,850 to the complainant, $360 to another legatee, and $100 to another; and the said account also showed that the executor had a balance in his hands of the personal estate amounting to $2,638.51. After this time the executor made a payment to the complainant of $200, leaving a balance still due to it of $1,650. On the 19th of De. cember, 1898, the complainant began proceedings in the orphans' court aforesaid against
the executor, which resulted, on the 5th of January, 1899, in a decree that the executor pay to the complainant, upon its tendering a proper refunding bond, the sum above mentioned remaining due upon its legacy. Whereupon it tendered a proper refunding bond, and the said executor refused to pay, stating that he had no assets of the estate in his possession.
The bill charges that the executor, at the time of filing the final account on the 31st day of December, 1896, had wasted the estate of Hannah Grundy, and had misappropriated the same; that he was and is now insolvent and of no financial responsibility whatever; and that the complainant has exhausted all means at its command to obtain the balance due upon its legacy. The bill also charges that at various dates from the 15th of June, 1895, to the 29th of June, 1906, the residuary legatee, John Clough, conveyed certain portions of the real estate and agreed to convey certain other portions thereof to various persons.
The bill charges that the legacy of the complainant is a charge upon the real estate of the decedent, and prays that the same may be so decreed, and that the defendants be decreed to pay the amount due thereon, or that so much of the real estate as may be necessary may be sold to raise and pay the same. The executor, the residuary devisee, and each of the parties to whom the real estate was conveyed by the residuary devisee, and the other legatees who have not received payment in full, are made defendants.
John Clough, the residuary devisee, fles the demurrer. His grounds may be briefly summarized as follows: First. That the complainant is in laches in attempting, at this late date, to charge the real estate of the defendant acquired as residuary devisee. Second. That there was sufficient personal estate at the time of the death of the testatrix to pay all of the legacies, together with the costs of administration. Hence there is no charge upon the real estate acquired by the defendant under the will. Third. That under the will there was no intention to charge the real estate acquired by the demurrant under the residuary clause thereof. Fourth. That if the complainant ever had a lien, its delay in enforcing the same has resulted in its losing it. Fifth. That the complainant has not, on the face of his bill, justified his laches.
Robert Williams and Gustav A. Hunziker, for complainant. George P. Rust and Thos. P. Costello, for defendant John Clough.
GARRISON, V. C. (after stating the facts.) There is no doubt that, where a testator bequeaths pecuniary legacies and follows this with a general residuary clause, the legacies are charged upon the entire residuary estate, real as well as personal. This matter was set at rest in this state by the decision of the
Court of Errors and Appeals in the case of ing ample personal estate to pay debts and Corwine y. Corwine, 24 N. J. Eq. 579 (1874). | legacies, the lien upon the real estate exists, The rule, as there stated, was adopted from or whether such lien only arises in the event Hawkins on the Construction of Wills, and that there was not sufficient personal propt. is in the following language (page 583): “It ty applicable to the payment of legacies. has been said that a testator generally in. Concisely stated, I think the question is tends the legacies given by his will to be a whether, under the doctrine being considered, charge on his residuary real estate, as well the proper holding is that there is a lien or as on his personal estate, but (in the absence charge upon the residuary real estate, or that of an express charge) they are held to be so there is such a lien or charge only if there only when the residuary real and personal is not sufficient personal estate at the time estate are given together ;
of the death of the testator or final account. it being a rule of construction that, if legacies ing to pay the legacies. It seems to me plain are given generally, and the residue of the that if the first suggestion is adopted as a real and personal estate is afterwards given correct statement of the rule, then the lien or in one mass, the legacies are a charge on charge must remain until paid; and it is utthe residuary real as well as the personal terly immaterial whether there was sufficient estate." In the case of Johnson v. Poulson, personal property at the time of the death 32 N. J. Eq. 390 (Court of Errors, 1880), the of the testator or of the final accountingrule in Corwine v. Corwine is explained, and the only importance of that question being is shown to apply only to those cases in that such personal property must be resorted which there is no evidence of contrary in- to by the legatee before enforcing his charge tention appearing in the will; that is to say, upon the real estate. a will giving legacies generally, and following On the other hand, if the latter statement that with a residuary clause blending all of of the rule is the correct one, then, if there the property, real and personal, therein, will was sufficient personal property at the death be construed as charging the legacies on the or at the final accounting, there is no charge. blended mass of real and personal property This proceeds upon the reasoning that the left by the testator. But if there is anything testator only intended to charge his real in the will which shows a contrary intent, estate if he had not sufficient personal propthen the charge does not necessarily result erty to pay the legacies. I am of opinion from a residuary clause of the character that, under the reasoning and precedents, a mentioned. In the case at bar there is noth will of the kind here under consideration ing in the will to take it out of the plain rule charges the legacies upon the land, and that laid down in Corwine v. Corwine, and so they remain a charge until paid. I do not frequently applied since that time. Brown think that the proper rule is that the sov. Brown, 31 N. J. Eq. 422 (Runyon, Ch., called charge or lien is a contingent one, !879); Miller v. Sanford, 31 N. J. Eq. 427 which only arises in the event that there (Runyon, Ch., 1879); Adams v. Beideman, 33 was insufficient personal property at the time N. J. Eq. 77 (Runyon, Ch., 1880); Cook v. of the testator's death or at the final accountLanning, 40 N. J. Eq. 369, 3 Atl. 132 (Runyon, ing. The leading case upon this subject is Ch., 1885); Langstroth v. Golding, 41 N. J. Greville v. Browne, 7 H. L. Cas. 690 (1859). Eq. 49, 3 Atl. 151 (Runyon, Ch., 1886); Ameri. In that case there was a pecuniary legacy, can Dramatic Fund Ass'n v. Lett, 42 N. J. a general residuary clause, and another per Eq. 43, 6 Atl. 280 (Runyon, Ch., 1886); Tur son than the residuary devisee was the exner v. Gibb, 48 N. J. Eq. 526, 22 Atl. 580 ecutor. Lord Chancellor Campbell, at page (Green, V. C., 1891); Congregational Church 696, said: “For nearly a century and a half V. Benedict, 59 N. J. Eq. 136, 44 Atl. 878 this rule has been laid down and acted upon, (Stevens, V. C., 1899, affirmed 62 N. J. Eq. that, if there is a general gift of legacies, 812, 44 Atl. 1117); Horton v. Howell (N. J. and then the testator gives the rest and resiCh.) 56 Atl. 702 (Stevens, V. C., 1903).
due of his property, real and personal, the Since it is the rule that the personal estate legacies are to come out of the realty. It is of a decedent is the primary fund for the considered that the whole is one mass, that payment of debts and legacies, the question part of that mass is represented by legacies, arises, in applying the doctrine of Corwine and that what is afterwards given is given v. Corwine, whether there is any charge upon minus what has been before given, and therethe residuary real estate if there is sufficient fore given subject to the prior gift.” He fur. personal property to pay the debts and lega ther quotes with approval the language of cies. There is no doubt whatever that, as Vice Chancellor Page-Wood, who said, “I between the residuary devisee and a legatee, feel that I should be only introducing a usethe legatee can be compelled by the devisee less and mischievous distinction if I held to proceed to obtain his legacy from the per the legacy not to be a charge; the principle sonal estate before resorting to the real of the decision being in truth the same in the estate. The question, however, still remains, case of legacies as in that of debts." Lord whether, if the legatee does proceed to obtain Cranworth, at page 699, said: “The disting payment first from the personal estate and tion that is suggested between real and perfails, although there was at the time of the sonal property is an artificial part of the death of the testator or of the final account case;" and Lord Kingsdown, at page 705,
after holding that "the rest" must be con tate. This is undoubtedly the rule, but it is strued to mean that which remains after not the whole rule, and as thus stated leads what has previously been given is with to the incorrect inference to which I have drawn," proceeds to say: "The distinction alluded. If from this statement of the prin. which is relied upon
* is, I think, a ciple it is inferred that there is only a charge distinction which is founded, not upon gen upon the real estate in the event of there eral principles, or upon the ordinary sense being an insufficiency of personal estate, then of mankind, but entirely upon the technical such inference is unwarranted, and the prinrules of the English law."
ciple is not properly applied. In my view, as It must be recalled that by reason of the between the legatee and “the estate," the feudal system, and the inability to transfer latter is charged as a whole, irrespective of lands by will, there grew up an entirely arbi any distinction as to different kinds of proptrary distinction with respect to property.erty, and remains charged until the legacy Is has just been pointed out by the judges is paid. In the matter of marshaling of asabove quoted, there is no real distinction in sets, or of determining the rights as between the mind of the layman between one kind of the residuary devisee and the legatee, the his property and another kind. He bas prop latter undoubtedly can be compelled to exerty. He desires to dispose of it by will. To
haust his remedy against the personal prop the lay mind it does not occur that any dis erty before enforcing the lien which he has tinction will be applied; and hence, when upon the real estate. Many of the cases he gives some of the property in the form of above cited as following Corwine v..Oorwine muoney bequests, and what is left of his prop refer in the way in which I have above inerty in a mass to another, he undoubtedly dicated to the necessity of there being an means that all of his property shall first be insufficiency of personal assets before the used (after payment of his debts) to pay the doctrine contended for will be applied. But legacies he has given, and that only what Greville v. Browne, the leading authority is left shall go to the one who is to have above cited, does not, as heretofore shown, the residuum. It is an entirely artificial refer to the necessity of any such insuffithing that the personal property is held to be ciency to create the lien, and the following the primary fund for the payment of debts cases in our own courts have stated the docand legacies; and, while it is perfectly true trine without any such qualification: Amerithat it is so held, I think it entirely improper can Dramatic Fund Ass'n v. Lett, 42 N. J. 44, to extend this doctrine so as to hold that if, 6 Atl. 280; Stevens v. Flower, 46 N. J. Eq. for any reason, the personal property is di 340, 19 Atl. 777 (McGill, Ch., 1890); First verted from and does not reach the legatee, Baptist Church v. Syms, 51 N. J. Eq. 363, 28 he thereby loses his legacy, in a case where
Atl. 461 (McGill, Ch., 1893); Carter v. Gray, the testator left ample property to pay the
58 N. J. Eq. 411, 43 Atl. 711 (Grey, V. C., named pecuniary legacies. It will be observ 1899); Vernon v. Mabbett (N. J. Ch.) 58 Atl. ed that in the leading case just cited there 298 (Grey, V. C., 1904); Haberman v. Kaufer is no suggestion that the charge upon the (N. J. Ch.) 61 Atl. 976 (Grey, V. C., 1905). realty arises in the event of a deficiency of
See, also, Wyckoff v. Wyckoff, 48 N. J. Eq. personal property. The court, as has been 113, 21 Atl. 287 (Pitney, V. C., 1881). While demonstrated, wiped out any distinction in the Vice Chancellor in that case dealt only. such cases between the two classes of proper
with the doctrine which concerned land dety, and held squarely and without qualifica
vised to a person who is directed to pay a tion that the legacies were a charge upon the
legacy, and held that in such case the defirealty. This case was cited in our leading ciency of personal assets was not considered, case of Corwine v. Corwine, supra, and, at
he cites authorities which show that the page 584 of 24 N. J. Eq. thereof, is shown same ruling is made in cases where the to be the basis of the modern formulation charge is upon a residuary estate, and is not of the doctrine.
confined to cases where the land is devised The difficulty which now confronts us has
with a specific direction to pay. In Gre arisen in my view because the courts, in
ville v. Browne, one of the authorities cited stating the undoubted rule that the personal by the Vice Chancellor, and which I have property is the primary fund for the pay heretofore alluded to, Lord Cranworth, in ment of legacies, have failed to clearly show commenting upon an argument and an inferthat this relates merely to priority or pre ence from the case of Awbrey v. Middleton, cedence in the marshaling of assets, and does points out that the circumstance that the not affect the existence or continuance of the legacies were directed to be paid by the exlien. Because the residuary devisee bas the ecutor and that the gift of the general resiundoubted right to have the personal prop due was to the executor did not control the erty of the decedent, after the payment of
decision, but that the decision proceeded upon his debts and administration expenses, ap the general principle that the residue was plied to the satisfaction of pecuniary lega charged with the legacy, and therefore the cies, the courts have often unqualifiedly legacy must be paid without regard to whethstated that, under the doctrine being dealt er it came from personal property or real with, the legacies are a charge on the land, estate. if there be an insufficiency of personal es If, then, I am correct in my understanding