and it appeared by the testimony of the surveyor who did it that the street was actually laid out on the ground in the year 1871. I think there is no question but that there was a dedication as is claimed by the city; but a mere dedication without acceptance is insufficient to charge the dedicated land with a public use and with public liability. Mr. Justice Lippincott in N. Y. & L. B. R. R. Co. v. South Amboy, 57 N. J. Law, 252, 30 Atl. 628, says: "Whilst the fact of dedication may be clear as against the owner or those claiming under him, yet there must exist on the part of the public a ratification or acceptance evidenced by some authorized formal municipal act or a public user. The public acquired no rights, nor is it subject to any burdens by reason of the dedication, unless it be by some formal act of acceptance or by unequivocal public user." Trustees V. Hoboken, 33 N. J. Law, 13, 97 Am. Dec. 696; Holmes v. Jersey City, 12 N. J. Eq. 299; Booraem v. N. H. C. R. Co., 12 N. J. Eq. 465.

The city claims that the village did exercise unequivocal municipal authority by formal municipal acts over the property in question to a sufficient extent to warrant the finding of an acceptance; in short, that there was an acceptance of the dedication. It appears that a private corporation erected a street light within the limits of the street, the maintenance of which was paid for by the village. This, however, under the opinion of Vice Chancellor Emery in Robertson v. Meyer, 59 N. J. Eq. 370, 45 Atl. 983, would not be sufficient to justify the conclusion of an acceptance. Neither do I think that the failure of the village to tax the land as private property is any evidence of acceptance, because it may well be, as was said by the complainants' counsel on the argument, that the valuation of the abutting land for purposes of taxation included the value of the land within the lines of the socalled street; nor is the somewhat limited user by the public standing alone a sufficient fact from which to infer an acceptance which would bind the municipality. Its public use resembles very much the use of Henry street in South Amboy described in Mr. Justice Lippincott's opinion above referred to, which was thought by the Supreme Court to be insufficient evidence of an acceptance.

But it appears that in the year 1902 the village, in the exercise of its municipal power, constructed a sewer through the so-called street, which extended from West Turrell avenue northerly to the Orange city line, and in front of the lands of the complainants, which was paid for by the village, and was laid in connection with similar sewers in other streets in pursuance of a general plan for the drainage of the village, and that a majority of the owners of property along the so-called Clark street have connected their properties with the sewer, and that sewage therefrom is now being discharg.

ed into it. The ordinance under which this work was done is in part as follows: "An ordinance to construct pipe sewers in certain of the streets and highways of the village of South Orange in the county of Essex, to be connected with the joint trunk or outlet sewer.

"Section 1. That there shall be constructed and laid public sewers in the village of South Orange in accordance with the maps, profiles, plans and specifications submitted by Alexander Potter, which plans have been heretofore adopted and were filed in the of fice of the village clerk on the 30th day of July, 1902, such sewers to be of the dimensions and in the streets and highways between the points following."

Then follows a list of the streets to be sewered, including "Clark street from West Turrell avenue to Montrose avenue 8 and 10 inch."

This action appears to me to be a most complete and efficient acceptance of the dedication of the lands in question, and, while it may possibly be argued that this holding may not affect the rights of the village of South Orange in other litigations because it is not a party to this suit, it can be made the foundation of a decree which shall be decisive of the rights of the parties now before the court. It is useless to speculate in regard to the position that the village might have taken if the complainant had made it a party to this suit. It might, and I think probably would, have admitted that the act in question was an acceptance of the dedication.

The question as to what particular municipal action will be sufficient to evince an acceptance of a dedication has not often been decided in our state. I think, however, that so important a municipal act as the construction of a public sewer by proper municipal authority at the expense of the municipality in a dedicated street connected with the mu nicipality's general system of sewers must be held to be an acceptance of the dedica. tion of the street through which it is constructed. In People's Traction Co. v. Atlantic City, 71 N. J. Law, 134, 57 Atl. 972, it was claimed that Atlantic City had no right to grant permission to a street railway to lay its tracks and maintain its overhead construction in certain streets within its boundaries, because the streets were not dedicated and accepted streets. Mr. Justice Garretson, speaking for the Supreme Court, says: "We think the evidence shows that the streets were dedicated by the filing of maps and sales of lots upon them, and were accepted by the city by resolution accepting them, and also by the passage of this very ordinance in which provision is made for their improvement by paving." If the paving of a dedicated street as a condition of permission to a street railway company to use the street for its purposes is sufficient evidence 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 tate of facts Judge Vann says: "We think the 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 had 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, §§ 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 had no assets in his possession.

[Ed. Note. For cases in point, see Cent. Dig. vol. 49, Wills, § 2133.]

3. EXECUTORS LEGACIES PRESUMPTION OF ΡΑΥΜΕΝΤ.

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 complainant, whose legacy was $4,000. The will was admitted to probate, and letters testamentary were issued to Blauvelt, the executor. The testatrix 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 December, 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, files 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 Corwine v. Corwine, 24 N. J. Eq. 579 (1874). The rule, as there stated, was adopted from Hawkins on the Construction of Wills, and is in the following language (page 583): "It has been said that a testator generally intends the legacies given by his will to be a charge on his residuary real estate, as well as on his personal estate, but (in the absence of an express charge) they are held to be so only when the residuary real and personal estate are given together;

it being a rule of construction that, if legacies are given generally, and the residue of the real and personal estate is afterwards given in one mass, the legacies are a charge on the residuary real as well as the personal | estate." In the case of Johnson v. Poulson, 32 N. J. Eq. 390 (Court of Errors, 1880), the rule in Corwine v. Corwine is explained, and is shown to apply only to those cases in which there is no evidence of contrary intention appearing in the will; that is to say, a will giving legacies generally, and following that with a residuary clause blending all of the property, real and personal, therein, will be construed as charging the legacies on the blended mass of real and personal property left by the testator. But if there is anything in the will which shows a contrary intent, then the charge does not necessarily result from a residuary clause of the character mentioned. In the case at bar there is nothing in the will to take it out of the plain rule laid down in Corwine v. Corwine, and so frequently applied since that time.

Brown

v. Brown, 31 N. J. Eq. 422 (Runyon, Ch., 1879); Miller v. Sanford, 31 N. J. Eq. 427 (Runyon, Ch., 1879); Adams v. Beideman, 33 N. J. Eq. 77 (Runyon, Ch., 1880); Cook v. Lanning, 40 N. J. Eq. 369, 3 Atl. 132 (Runyon, Ch., 1885); Langstroth v. Golding, 41 N. J. Eq. 49, 3 Atl. 151 (Runyon, Ch., 1886); American Dramatic Fund Ass'n v. Lett. 42 N. J. Eq. 43, 6 Atl. 280 (Runyon, Ch., 1886); Turner v. Gibb, 48 N. J. Eq. 526, 22 Atl. 580 (Green, V. C., 1891); Congregational Church v. Benedict, 59 N. J. Eq. 136, 44 Atl. 878 (Stevens, V. C., 1899, affirmed 62 N. J. Eq. 812, 44 Atl. 1117); Horton v. Howell (N. J. Ch.) 56 Atl. 702 (Stevens, V. C., 1903).

Since it is the rule that the personal estate of a decedent is the primary fund for the payment of debts and legacies, the question arises, in applying the doctrine of Corwine v. Corwine, whether there is any charge upon the residuary real estate if there is sufficient personal property to pay the debts and legacies. There is no doubt whatever that, as between the residuary devisee and a legatee, the legatee can be compelled by the devisee to proceed to obtain his legacy from the personal estate before resorting to the real estate. The question, however, still remains, whether, if the legatee does proceed to obtain payment first from the personal estate and fails, although there was at the time of the death of the testator or of the final account

ing ample personal estate to pay debts and legacies, the lien upon the real estate exists, or whether such lien only arises in the event that there was not sufficient personal prope. ty applicable to the payment of legacies. Concisely stated, I think the question is whether, under the doctrine being considered, the proper holding is that there is a lien or charge upon the residuary real estate, or that there is such a lien or charge only if there is not sufficient personal estate at the time of the death of the testator or final accounting to pay the legacies. It seems to me plain that if the first suggestion is adopted as a correct statement of the rule, then the lien or charge must remain until paid; and it is utterly immaterial whether there was sufficient personal property at the time of the death of the testator or of the final accountingthe only importance of that question being that such personal property must be resorted to by the legatee before enforcing his charge upon the real estate.

On the other hand, if the latter statement of the rule is the correct one, then, if there was sufficient personal property at the death or at the final accounting, there is no charge. This proceeds upon the reasoning that the testator only intended to charge his real estate if he had not sufficient personal property to pay the legacies. I am of opinion that, under the reasoning and precedents, a will of the kind here under consideration charges the legacies upon the land, and that they remain a charge until paid. I do not think that the proper rule is that the socalled charge or lien is a contingent one, which only arises in the event that there was insufficient personal property at the time of the testator's death or at the final accounting. The leading case upon this subject is Greville v. Browne, 7 H. L. Cas. 690 (1859). In that case there was a pecuniary legacy, a general residuary clause, and another person than the residuary devisee was the executor. Lord Chancellor Campbell, at page 696, said: "For nearly a century and a half this rule has been laid down and acted upon, that, if there is a general gift of legacies, and then the testator gives the rest and residue of his property, real and personal, the legacies are to come out of the realty. It is considered that the whole is one mass, that part of that mass is represented by legacies, and that what is afterwards given is given minus what has been before given, and therefore given subject to the prior gift." He further quotes with approval the language of Vice Chancellor Page-Wood, who said, “I feel that I should be only introducing a useless and mischievous distinction if I held the legacy not to be a charge; the principle of the decision being in truth the same in the case of legacies as in that of debts." Lord Cranworth, at page 699, said: "The distinc tion that is suggested between real and personal property is an artificial part of the case;" and Lord Kingsdown, at page 705,

after holding that "the rest" must be construed to mean that which remains after what has previously been given is withdrawn," proceeds to say: "The distinction which is relied upon is, I think, a distinction which is founded, not upon general principles, or upon the ordinary sense of mankind, but entirely upon the technical rules of the English law."

It must be recalled that by reason of the feudal system, and the inability to transfer lands by will, there grew up an entirely arbitrary distinction with respect to property. As has just been pointed out by the judges above quoted, there is no real distinction in the mind of the layman between one kind of his property and another kind. He has property. He desires to dispose of it by will. To the lay mind it does not occur that any distinction will be applied; and hence, when he gives some of the property in the form of money bequests, and what is left of his property in a mass to another, he undoubtedly means that all of his property shall first be used (after payment of his debts) to pay the legacies he has given, and that only what is left shall go to the one who is to have the residuum. It is an entirely artificial thing that the personal property is held to be the primary fund for the payment of debts and legacies; and, while it is perfectly true that it is so held, I think it entirely improper to extend this doctrine so as to hold that if, for any reason, the personal property is diverted from and does not reach the legatee, he thereby loses his legacy, in a case where the testator left ample property to pay the named pecuniary legacies. It will be observed that in the leading case just cited there is no suggestion that the charge upon the realty arises in the event of a deficiency of personal property. The court, as has been demonstrated, wiped out any distinction in such cases between the two classes of property, and held squarely and without qualification that the legacies were a charge upon the realty. This case was cited in our leading case of Corwine v. Corwine, supra, and, at page 584 of 24 N. J. Eq. thereof, is shown to be the basis of the modern formulation of the doctrine.

The difficulty which now confronts us has arisen in my view because the courts, in stating the undoubted rule that the personal property is the primary fund for the payment of legacies, have failed to clearly show that this relates merely to priority or precedence in the marshaling of assets, and does not affect the existence or continuance of the lien. Because the residuary devisee has the undoubted right to have the personal property of the decedent, after the payment of his debts and administration expenses, applied to the satisfaction of pecuniary legacies, the courts have often unqualifiedly stated that, under the doctrine being dealt with, the legacies are a charge on the land, if there be an insufficiency of personal es66 A.-67

tate. This is undoubtedly the rule, but it is not the whole rule, and as thus stated leads to the incorrect inference to which I have alluded. If from this statement of the principle it is inferred that there is only a charge upon the real estate in the event of there being an insufficiency of personal estate, then such inference is unwarranted, and the principle is not properly applied. In my view, as between the legatee and "the estate," the latter is charged as a whole, irrespective of any distinction as to different kinds of property, and remains charged until the legacy is paid. In the matter of marshaling of assets, or of determining the rights as between the residuary devisee and the legatee, the latter undoubtedly can be compelled to exhaust his remedy against the personal property before enforcing the lien which he has upon the real estate. Many of the cases above cited as following Corwine v. Corwine refer in the way in which I have above indicated to the necessity of there being an insufficiency of personal assets before the doctrine contended for will be applied. But Greville v. Browne, the leading authority above cited, does not, as heretofore shown, refer to the necessity of any such insufficiency to create the lien, and the following cases in our own courts have stated the doctrine without any such qualification: American Dramatic Fund Ass'n v. Lett, 42 N. J. 44, 6 Atl. 280; Stevens v. Flower, 46 N. J. Eq. 340, 19 Atl. 777 (McGill, Ch., 1890); First Baptist Church v. Syms, 51 N. J. Eq. 363, 28 Atl. 461 (McGill, Ch., 1893); Carter v. Gray, 58 N. J. Eq. 411, 43 Atl. 711 (Grey, V. C., 1899); Vernon v. Mabbett (N. J. Ch.) 58 Atl. 298 (Grey, V. C., 1904); Haberman v. Kaufer (N. J. Ch.) 61 Atl. 976 (Grey, V. C., 1905). See, also, Wyckoff v. Wyckoff, 48 N. J. Eq. 113, 21 Atl. 287 (Pitney, V. C., 1881). While the Vice Chancellor in that case dealt only with the doctrine which concerned land devised to a person who is directed to pay a legacy, and held that in such case the deficiency of personal assets was not considered, he cites authorities which show that the same ruling is made in cases where the charge is upon a residuary estate, and is not confined to cases where the land is devised with a specific direction to pay. In Gre ville v. Browne, one of the authorities cited by the Vice Chancellor, and which I have heretofore alluded to, Lord Cranworth, in commenting upon an argument and an inference from the case of Awbrey v. Middleton, points out that the circumstance that the legacies were directed to be paid by the executor and that the gift of the general residue was to the executor did not control the decision, but that the decision proceeded upon the general principle that the residue was charged with the legacy, and therefore the legacy must be paid without regard to whether it came from personal property or real estate.

If, then, I am correct in my understanding