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answer petitioner filed a replication and the not a resident of New Jersey. Mr. Dixon's case was heard on the merits. The court de allegation in that regard is not that his wife creed as follows: “It is on this 3d day of had ceased to be a resident, but that he has August, 1905, on motion of Collins & Corbin, been informed by a letter written by defendsolicitors of defendant, ordered that the pray ant's father in New York that his daughter er of the petitioner to have the custody of the had “moved" from New York to Portland. children in the writ named, to wit, William It does not appear that Mr. Williams was auH. Dixon, Jr., and Barbara Dixon, be denied thorized by his daughter to bind her to this with costs. And it is further ordered that statement. The word “moved" is somewhat the petitioner shall be permitted to visit indefinite. It may or may not, according to said children once in each week while living circumstance, warrant the inference of a in Morristown, at such convenient time and permanent change of residence on her part. place as the parties may agree, and that, But, if it be assumed that she has changed when the said children are living in New her residence, I am still of the opinion that York, they shall be taken at least once in the court has jurisdiction to modify its preeach week for a reasonable time, at such vious order. The wife's answer in the orig. convenient hour during the day as the peti inal proceeding demonstrates that sh and tioner may desire, to the house of the parents her children were then residents of New Jerof the petitioner. Either party may apply to sey. The proceeding was not a pure comthis court for further direction as there may mon-law habeas corpus proceeding-a probe occasion.” The petitioner appealed from ceeding which either terminated or continued this decree and on December 3, 1906, it was the restraint and so ended-but a proceeding affirmed by the Court of Errors and Appeals. "before the Chancellor under bis general powIts correctness and propriety in all its parts er to superintend the affairs of infants and is therefore beyond controversy.
to provide who shall permanently have the On February 13, 1907, William H. Dixon custody of them during minority." Rossell filed a supplemental petition, stating most of
v. Rossell, 64 N. J. Eq. 22, 53 Atl. 821 ; State the foregoing facts, and alleging that he had (Baird) v. Baird, 19 N. J. Eq. 481; Buckley been permitted to have access to his children v. Perrine, 54 N. J. Eq. 285, 34 Atl. 1054; Id., pursuant to the terms of the order up to
55 N. J. Eq. 515, 36 Atl. 1088. Saturday, January 26, 1907, but that on the The proceeding by petition in a case where 8th day of February, 1907, he was notified by the parents are living separately is expressher father that defendant had “moved" from ly authorized by section 8 of the act of 1902, Madison to Portland, and, on February 11th, respecting minors. P. L. p. 263. The petithat his wife and children were at the Laf.
tion in this case is entitled in the Court of ayette Hotel, in that city. The first letter Chancery, and it prayed the appropriate prostated that it would be convenient (to Mrs.
cess of habeas corpus in order to bring the Dixon) that Mr. Dixon should see the chil
infants before the court. This writ might dren there, by appointment, as usual. The
have issued in such a proceeding prior to the petitioner states that he is engaged in busi
act of 1902 (State (Baird, Pros.) v. Baird, ness in the city of New York, and that all
19 N. J. Eq. 481, 487), but it is expressly his time is occupied therein except Saturday
authorized by section 12. It is also provided
in express terms by section 10 that the court afternoons, and that it would be quite impossible for him to make weekly or even fre
may make the necessary orders from time
to time in relation to the custody or possesquent visits to Portland. The prayer is that,
sion. The situation, then, is this: A proif Mrs. Dixon is desirous of living in Portland, she should not be permitted to keep
ceeding was instituted, whose scope was the the children there, and that she should be
permanent custody of two minor children,
and it was so instituted under the general directed to return them either to the city of
jurisdiction of the Court of Chancery as deNew York or to the state of New Jersey, with
cla red and regulated by express statute. an alternative prayer that the custody of the
Under such a proceeding any order made children should be awarded to him.
was, in the nature of things, temporary and der to show cause why the prayer of the pe
open to such modification as the situation titioner should not be granted was made up
itself might, from time to time, call for. The on the filing of the petition. It, with a copy
order itself expressly provided that “either thereof, was personally served upon the de
party may apply to this court for further fendant in Portland. She appeared by coun
direction as there may be occasion." Under sel on the return day and opposed the making
the circumstances, it would seem to be clear of any further order, but did not file an
that the court, having at the beginning acanswer or make any statement with refer quired complete jurisdiction over the defendence to her future plans. She insisted, by
ant and her children, may continue to excounsel, in addition, that the court was with
ercise that jurisdiction as occasion may reout jurisdiction to make any further order
quire. In Laing v. Rigney, 160 U. S. 531, 16 in the premises, inasmuch as it appeared that Sup. Ct. 366, 40 L Ed. 525, a wife resident none of the parties were at present within in New Jersey filed a bill for divorce against the jurisdiction of the court. There is no her husband, resident in New York. The de proof on the part of Mrs. Dixon that she is fendant appeared and answered. Then the
wife filed a supplemental bill charging other made, or any subsequent order, is of such a acts of adultery subsequent to the filing of nature as to entitle it, in other states, to the original bill. A copy of this supplement full faith and credit, under the federal Conal bill was, pursuant to order, served out of stitution is a question suggested by the arguthe jurisdiction. To this defendant did not ment, but not before me for decision. The appear, and a decree was made ex parte case was fully heard upon the merits in finding him guilty of the adultery charged July, 1905. The children were then two and "in the said bill and supplemental bill" and three years old. They were remitted to their awarding alimony. On the decree, so far as mother because she was thought to be the It awarded alimony, the complainant institut proper person to care for them at their tened a suit in New York, and thereupon defend der age. Nothing is alleged in the petition ant's counsel applied to this court to have going to show that she has become an imthe decree amended so as to make it read proper person to have charge of them, or that the defendant had been guilty of adul that she should be deprived of their custody tery only as charged in the supplemental now. The order directed, however, that the bill. The decree was amended accordingly, petitioner should be permitted to visit them and then the defense set up to the suit in once a week, and of this permission he has New York was that inasmuch as defendant regularly availed himself. It does not aphad not been served with a subpoena to an pear that it would be for the welfare of swer the supplemental bill, and the defend the children that he should not continue to ant had not appeared thereto and service see and interest himself in them. The strong of the supplemental bill in New York was presumption is that he should. I think the Irregular and invalid, the court was without mother ought not to deprive the father of jurisdiction to make the money decree. It the opportunity of seeing them at short inwas held, however, that this decree was, tervals, as she would do if she could keep under the federal Constitution, entitled to them permanently in Maine. There is as full faith and credit in the courts of the yet little or no proof that she intends to do state of New York, and could not be there so, and I doubt whether I ought to make impeached. This case goes further than I any new order till such proof be forthcoming. I am required to go in the case at bar. In I will hear counsel on the question of whetha certain sense a supplemental bill, alleg. er a reference should not be ordered to asing a fresh cause of action, arising after the certain the fact. commencement of the suit, is a new proceeding not within the scope or contemplation of the original bill, but yet such a bill was re
(72 N. J. E. 642) garded by the Supreme Court as a continu McCARTER, Atty. Gen. of New Jersey, V. ation only of the original proceeding, and,
CLAVIN. on this theory, it was held that jurisdiction
(Court of Chancery of New Jersey. April 4, having once attached continued to the end.
1907.) Lynde v. Lynde, 181 U. S. 183, 21 Sup. Ct.
RECEIVERS-GROUND FOR APPOINTMENT-CON555, 45 L. Ed. 810, is in the same direc
FLICTING CLAIMS TO PROPERTY. tion. The case in band differs from the Sufficient ground is shown for the appointcase of Laing v. Rigny in the important cir. ment of a receiver to protect decedent's real cumstance that from the very outset the
property, worth $100,000, claimed by the state
to escheat, and also claimed by defendant under proceeding was designed to regulate the cus
an alleged will and by another claiming to be tody and possession of the children by a decedent's only heir at law, the lands having succession of orders made from time to time,
been sold for municipal taxes, the rents being as the then situation might require. The
collected by the purchasers at the tax sale, a
mortgagor baving filed foreclosure proceedings, mere fact, therefore, that Mrs. Dixon may be defendant as administratrix having in no way out of the jurisdiction now, cannot prevent attempted to protect the property, and it appearthe court from making such an order as the
ing that the conflicting claims will produce pro
longed litigation. present situation may appear to warrant. It
(Ed. Note.-For cases in point, see Cent. Dig. is not to be presumed that she will disobey. vol. 42, Receivers, 88 24-28.]
As to the children, it has been repeatedly held that, if necessary, the court may order
Bil] by Robert H. McCarter, Attorney them to be kept within the state (In re Agar
General of New Jersey, against Mary Clavin, Ellis, 24 Ch. Div. 317, 333; Miner v. Miner,
individually and as administratrix of the 11 III. 43; Campbell v. Campbell, 37 Wis.
estate of John W. Russell, for a receiver and 206, 221; Ryce v. Ryce, 52 Ind. 64), or if ab
an injunction. Receiver appointed, and insent, brought within it (Campbell v. Mackay,
Junction allowed. 2 My. & Cr. 26; Reg. v. Bernardo, 23 Q. Robert H. McCarter, Atty. Gen., in pro. B. Div. 305; 24 Q. B. Div. 296; Gordon v. per. Raymond, Van Blarcom & Anthony, Gordon (1903) Dro. Div. 141; In re Jack for defendant. son, 15 Mich. 420, 305; People ex rel. Billotte v. N. Y. Asylum, 57 App. Div. 383, 68 BERGEN, V. C. On November 28, 1905, N. Y. Supp. 279; People ex rel. Dunlap v. John W. Russell departed this life seised N. Y. J. Asylum, 58 App. Div. 133, 68 N. of certain real estate in the city of East Y. Supp. 656). Whether the order already Orange, N. J., and at that time he was not
supposed to leave any known relatives. The defendant, Mary Clavin, who had lived with him as a servant, claiming to be a creditor, made application for letters of administration, which were issued to her; it being supposed that Russell had died intestate. The real estate consisted of four tracts or parcels known as Nos. 15, 19, 21, and 23 South Maple avenue, East Orange, and he left also a small amount of personal property. Three of the four lots were improved and are occupied by tenants who are paying no rent, for the reason that no one is now empowered to collect rents. One of the lots is subject to a mortgage for $8,000, upon which interest is in arrears and upon which the taxes for two years have remained unpaid, and the municipal authorities to enforce the payment of taxes have sold the lands and the rents since such tax sale have been collected or claimed by the purchasers at that sale. It also appears that the holder of the mortgage security has instituted foreclosure proceedings, and that as to one lot the property is likely to be absolutely lost to the owner. Since the granting of administration to the defendant of the personal estate, a paper writing has been recently produced purporting to be a last will and testament of Russell, which has been offered for probate, and probably would have been probated ex. cept for a caveat filed on behalf of the state of New Jersey, and another filed on behalf of Mary Ellen Hyde, who claims that she is the only heir at law of the decedent.
The bill of complaint charges that Russell died intestate and left no heirs at law, so that the property will éscheat to the state, and claims on behalf of the state that the paper offered for probate is not the last will and testament of the decedent, and that Mary Ellen Hyde is not the heir at law. The al. leged will devises all of this valuable property, estimated to be worth $100,000, to the defendant, and it is quite apparent that the questions involved and the great value of the property will produce a litigation likely to cover a considerable period, and it is upon this ground that the complainant files this bill asking that a receiver of the real estate be appointed to hold the property during the litigation, with power to collect the rents and to pay off and discharge taxes, interest, and any other proper lien, the removal of which may become necessary in order to preserve the property for the owner when ascertained, and also that the defendant may be restrained by a writ of injunction from interfering with the real estate or with the possession, care, or custody of the receiver when appointed.
The situation, briefly stated, is this: The deceased died seised of real estate estimated to be worth $100,000. At the time of his death it was not known that he had any relatives. The defendant being appointed administratrix of the personal estate has not
in any way attempted to protect the real property, and in consequence of the want of an owner, or any person representing an owner, the property has all been sold for taxes and purchased by persons who are now taking, or claiming the right to take, all of the rents from this valuable property without offering to protect it from a foreclosur sale, and equity would seem to require that a receiver should be appointed to protect the property from loss, and to hold it for the benefit of those to whom it may be finally determined it belongs.
The counsel for the defendant appeared, and, without seriously denying the facts stated, insisted that this court was without power to appoint a receiver, but I am of opinion that such power does exist, and will make an order to that effect. Under the title “Cases in Which a Receiver may be Appointed” (section 1332, Pom. Eq. Juris.), the third subdivision of the first class of cases in which receivers may be appointed is declared to be "estates of decedents." During the litigation concerning the admission of a will to probate and during the interval before an executor or administrator is appointed a court of equity has power to appoint a receiver of the personal property, and of the rents and profits of the real estate where there is any danger of their loss, misuse, or misapplication. In the present instance there is a controversy over the admission of the alleged will to probate. There is a contest over the question whether the party claiming to be the only heir is such. The property is in great danger of loss owing to tax sales and threatened fore closure. It is clear that, in the absence of an heir, in the absence of an executor or of any lawful appointee entitled to hold the property together, it will be lost, and in any event the rents and profits will be misapplied. It appears to me that, if there ever was a case in which the rule I have referred to ought to be applied, it is in this case, otherwise a vast amount of property that may belong to the state will, for want of protection, be swept away and pass, without practical consideration, into the hands of strangers to the decedents.
The course which I am adopting is justi. fied, in my judgment, by Flagler V. Blunt, 32 N. J. Eq. 518, in which the learned Chancellor on page 523, speaking of this very question, quoted from High on Receivers, 88 9, 11, as follows: "The principal ground upon which courts of equity grant their extraordinary aid by the appointment of receivers pendente lite are that the person seeking the relief has shown at least a probable interest in the property, and that there is danger of its being lost unless a receiver is allowed."
A receiver will be appointed and the inJunction allowed as prayed for in the bill of complaint.
(7? A. J. Eq. 808)
pay the fixed charges. The testator also CENTENARY FUND AND PREACHERS' clearly expresses his purpose that the pro
AID SOCIETY OF THE NEW JERSEY ceeds of sales of real estate shall be preseryANNUAL CONFERENCE OF THE METH ed intact except as to the temporary use of ODIST EPISCOPAL CHURCH V. LAKE
such proceeds in anticipation of revenues to et al.
be received from other sources to supply the (Court of Chancery of New Jersey. April 1, proceeds thus temporarily used. To comply 1907.)
with this requirement, it is now manifestly 1. WILLS – CONSTRUCTION — NATURE OF Es necessary to sell all the real estate in order TATE CREATED-FEE SIMPLE.
that its value may be made revenue produThe provision in a will, "I do hereby will
cing, and thus afford a fund from which the and bequeath unto * all my real estate and personal property, not disposed of in some
fixed charges can be paid. other way,” carries the legal title to the real I entertain no doubt as to the power to estate referred to, since the word “bequeath,' sell the entire real estate at either public or when expressly applied to real estate, is equiva private sale, and to confer an absolute title lent to the word "devise," and under 3 Gen. St. p. 3763, § 35, words of inheritance are made un upon the purchasers. necessary.
(Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, 88 1319-1326.)
(74 N. J. L. 435) 2. SAME-POWER OF SALE-EXTENT OF POWER -Sale.
O'KEEFE v. WILLIAM M. BARRY BENEVWhere an absolute power of sale is given
OLENT & ATHLETIC ASS'N. in a will, no condition subsequent or limitation in trust can be held operative against a title
(Supreme Court of New Jersey. May 6, 1907.) emanating under a proper exercise of the power, 1. BENEFICIAL ASSOCIATIONS STANDING OF since the power of sale ex proprio vigore sub MEMBER-RIGHT TO BENEFITS. ordinates the condition.
The constitution of the defendant, a benevoAction between the Centenary Fund and
lent association, provided that: “No member of
this association shall be allowed benefits, through Preachers' Ai Society of the New Jersey sickness or disability, unless he is a member Annual Conference of the Methodist Episco six months, and clear of all debts on the books
of the association. Any member who may be pal Church, trustee, under the last will and
taken sick or become disabled while in arrears testament of Ezra B. Lake, deceased, and
for dues or fines, cannot, by paying the same, Martha H. Lake and others on a bill for the become a beneficiary during said sickness or construction of the will of Ezra B. Lake.
disability, nor can a member who is a benefiWill construed.
ciary, on receiving benefits, become in arrears
for dues so as to debar him from benefits; the S. Stanger Iszard, for complainant. Bleak. president being authorized to pay the same from
the amount drawn from his weekly benefits." ly & Stockwell, for defendants.
O'Keefe, a member of the association, brought
suit for sick benefits, and recovered a judgment LEAMING, V. C. I find no uncertain fea
therefor which was paid. Held, that in legal
contemplation, in view of constitution of the tures touching this will. The intention of the
association and of sections 60 and 61 of the testator appears to me to be clearly manifest district court act (P. L. 1898, p. 574), he was throughout.
"clear of all debts on the books of the associaThe expression, “I do hereby will and be tion" on the date of payment of the judgment.
2. SAME-FUNERAL EXPENSES. queath unto all of my real es
The constitution of the association also tate and personal property not disposed of provided that upon the death of a member there in some other way,” carries the legal title to should be appropriated the sum of $75 to defray the real estate referred to. The word “be the funeral expenses of the deceased member,
provided his dues were not "unpaid for over queath,” when expressly applied to real es
three months.” The dues were 50 cents per tate, is uniformly treated as the equivalent
month. O'Keefe's dues by legal implication had to the word "devise," and words of inherit been paid up to December 17, 1904, and thereance are made unnecessary by 3 Gen. St. p.
after he paid $3.50 on account of subsequent
dues. He died September 24, 1905. On Sep3763, § 35.
tember 26, 1905, there was tendered the associaThe apprehensions which appear to have tion his remaining arrearages of dues. arisen by reason of the forfeiture clauses con Held, that the verdict for the defendant astained in the will are equally groundless. It
sociation was erroneous. is entirely immaterial whether these clauses (Syllabus by the Court.) be treated as conditions subsequent or as
Appeal from First District Court of Jersey limitations in trust; for, where an absolute
City. power of sale is given, no condition subsequent can be held operative against a title
Action by Katharine O'Keefe against the
William M. Barry Benevolent & Athletic emanating under a proper exercise of the
Association. Judgment for defendant, and power. An intention upon the part of tes.
plaintiff appeals. Reversed, and new trial tator to authorize a sale subject to condi.
awarded. tions subsequent is an impossible conception, The power of sale ex proprio vigore subordi Collins & Corbin, for appellant. James J. nates the condition.
Murphy, for appellee. The power of sale is equally clear. Testator expressly authorizes the sale of real es. TRENCHARD, J. This is an appeal from tate when there is insufficient cash on hand to a judgment of the First district court of Jer
sey City. The action was brought to recover material issue, as it is in this action. The a death benefit, alleged to be owing by the parties in both actions represent the same inWilliam M. Barry Benevolent & Athletic As terests. The fact that the subject-matters of sociation, the appellee and defendant below, the two actions are different is immaterial, to Katharine O'Keefe, the appellant, and as a judgment necessarily affirming or denyplaintiff below, as the representative of her ing a fact is conclusive of its existence, whendeceased husband, Daniel O'Keefe, who had ever that fact becomes a matter in issue bebeen a member of the defendant association, tween the same parties or between parties in At the trial, the parties, by their respective privity with them, where the same question attorneys, agreed that the issue was whether is involved, whether the subject-matter be or not Daniel O'Keefe, the husband of the the same or not. Freeman on Judgments, plaintiff, was in such standing as a member vol. 1, $8253, 256; Doty v. Brown, 4 N. Y. of the defendant association, at the time of 71, 53 Am. Dec. 350. Furthermore, if O'Keefe his death, as would compel that association was indebted to the defendant at the time to pay a death benefit to defray his funeral the suit for sick benefits was brought, it was expenses, as provided by its constitution and the duty of the association, under sections by-laws; and it was further agreed that, if 60 and 61 of the district court act (P. L. the association was compelled to pay such 1898, p. 574), to set off that indebtedness death benefit, it would pay same to the plain. | against plaintiff's demand, and, if such intiff, Katharine O'Keefe. The judgment of debtedness was not set off, the association is the district court was for the defendant, precluded from setting up the same in this
Article 22 of the constitution of the defend suit. Moreover, article 21 of the constitution ant association provides that: “On the death of the defendant association also provides of any member who has been six months in that: “Any member who may be taken sick good standing on the books of this associa or become disabled while in arrears for dues tion, there shall be the sum of seventy-five or fines, cannot, by paying the same, become dollars appropriated to defray the funeral ex a beneficiary during said sickness or disabilpenses of the deceased member." It is undis ity, nor can a member who is a beneficiary, puted that O'Keefe became a member of the on receiving benefits, become in arrears for defendant association January 23, 1891, and dues so as to debar him from benefits; the that he paid dues from time to time, making president being authorized to pay the same his last payment June 13, 1905. Article 16 from the amount drawn from his weekly of the same constitution provides that: “No benefits.” The clear intention of that provimember shall be entitled to sick or mortuary sion is to protect the sick member from be benefits who allows his indebtedness to re coming in arrears during illness, and under main unpaid for over three months." The it a member cannot be in arrears at the time defendant contends that O'Keefe was not in of payment of sick benefits. good standing at the time of his death, be Assuming, then, that, when the judgment cause, it is alleged, he had allowed “bis in was paid, O'Keefe was in legal contemplation debtedness to remain unpaid for over three "clear of all debts" to the defendant up to months." By the state of the case, it ap December 17, 1904, there remains only to be pears that there was admitted in evidence considered the legal effect of the subsequent the record of a suit in the First district court payment of dues. The state of the case, also, of Jersey City, in which the plaintiff in this shows that the dues were 50 cents per month, action, as next friend of her husband, was and that, subsequent to the date of payment plaintiff, and the defendant in this suit was of the judgment, O'Keefe paid on account of the defendant, and in which judgment was dues the sums following: February 14, 1905, rendered December 8, 1904, in favor of the $1.50; May 23, 1905, $1; June 13, 1905, $1— plaintiff and against the defendant for $55; making a total of $3.50. It necessarily folthat the suit was brought to recover sick lows, therefore, that his dues were paid up benefits for 11 weeks, due to the husband to July 1, 1905. Under article 16 of the confrom the defendant; and that the judgment stitution of the defendant, his right to death was paid by the defendant December 17, 1904. benefit is not barred, unless “his indebtedArticle 21 of the same constitution provides ness remains unpaid for over three months." that: “No member of this association shall The three months would not expire until Ocbe allowed benefits, through sickness or dis tober 1, 1905. He died September 24, 1905. ability, unless he is a member six months, The state of the case also shows “that on and clear of all debts on the books of the September 26, 1905, the plaintiff tendered to association.” It seems to be conceded by the the defendant association, at its meeting held defendant that O'Keefe's dues were paid up on that date, a sufficient amount of money to to the date of the payment of that judgment; pay the arrearages of dues of her late husbut, whether it is conceded or not, such, we band in said association, for which he was in think, is the legal implication. If he were default at the time of his death." Under not “clear of all debts on the books of the these conditions, the judgment for the defendassociation” at the time the suit for sick bene ant was erroneous. fits was started, such indebtedness would The result is that the judgment of the court have been a complete defense to that action, below should be reversed, and a venire de under article 21 above mentioned, and was a novo awarded.