Under a will giving testator's wife the income for life, and showing intention that on her death the estate pass to his children, the discretionary power given the executor to sell and reinvest in real estate sufficiently productive to pay income is limited to the life of the widow.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, § 1655.]

Suit by Mabel C. Tucker against Alexander P. Baldwin and others. Heard on bill and answer. Decision for complainant.

Condict, Condict & Boardman, for complainant. Pilch & Pilch, for defendant Alex. P. Baldwin.

GARRISON, V. C. The object of this bill is to obtain a partition of certain real estate in the city of Newark in this state of which Joseph Baldwin' died seised. The parties are the heirs at law of said Joseph Baldwin, and also claim that, under the will of the said Josph Baldwin, deceased, they are the deviseos of the real estate in question. Joseph Baldwin died on the 22d of September, 1874, leaving a will dated April 1, 1870, and probated on the 5th of October, 1874. Among other things the will contained the following provisions:

"I do make Aaron Ward, Junior, David Martin and Alexander P. Baldwin my executors of this my last will and testament, their joint signatures being necessary to make all transactions legal growing into and out of this will.

#

"I bequeath to my affectionate wife Margaret * allso for the time she shal reman my widdow all rents, intrests and profeets into and out of my estate.

"All other property in which I may die ceased if at the discretion of my executors is shal be of more advantage to sell it the proceds shal be invested in unencumbered real estate it being suficent productive to pay intest & Co. acruing to my said wife during her natural life as above provided and limited.

"At the death of my said wife the intest so acruing shal be paid equally to my living chinden or their heirs share alike, the childen receiving the share coming to my childen."

The three executors above named took out letters testamentary. Aaron Ward, Jr., one of them, died on the 29th of December, 1894, David Martin, another one, died in the year 1904. Margaret Baldwin, the widow of the

testator, died on the 21st day of August, 1897, having remained unmarried after the testator's death. The complainant is a granddaughter of the testator.

The executors, during the lifetime of the widow of the testator, did not sell or dispose of the real estate of which the testator died seised described in the bill of complaint. The bill and the answer each construe this will as vesting title in fee in the children, or the children of deceased children, of the testator, after the death of the widow of the testator.

This will was under consideration in this court and in the Court of Appeals in the case of Baldwin v. Tucker, 61 N. J. Eq. 412, 48 Atl. 547 (Emery, V. C., 1901), affirmed on opinion below (64 N. J. Eq. 333, 55 Atl. 1132). Under the issues raised in that suit this court decided that, under this will, the corpus of the personal estate passed at the death of the testator's widow to the testator's children. It expressly refused to decide, because it was not then before it whether this will should be so construed as to devise a fee to the said children, holding that the executors had no estate or interest in the lands, but only a power of sale. It is the existence of this alleged power of sale which is pleaded by the defendant as a bar to the right of partition. The parties in this suit agree that the will properly construed contains a devise of the real estate to the living children or the children of any deceased child. I do not find it necessary now to decide whether this will should be so construed, because the parties either take as devisees under the will or as heirs at law, if the testator died intestate with respect to this real estate, and therefore, since they are all before the court and would have the right to partition in either event, if the power of sale does not bar the right, there is no occasion not to take the time to determine in which right they hold.

The defendant insists that, under the terms of this will, the executors were given a power of sale, and that such power is exercisable by the surviving executor, and therefore there may not be a partition.

The complainant insists, first, that this power is a naked power, and that, in the case of a naked power to executors to sell, such power does not survive the death of one of the named executors. Moores v. Moores, 41 N. J. Law, 440 (Sup. Ct., 1879); Corlies v. Little, 14 N. J. Law, 383 (Sup. Ct., 1834); Coykendall v. Rutherford, 2 N. J. Eq. 360 (Pennington Chan., 1840). She recognizes that this rule of the common law has been changed by statute (2 Gen. St. p. 1428, § 17); but she insists that in that act the power is held to survive “unless it shall be or is otherwise expressed in said will," and she argues that this will does express the intention of the testator that the power shall not survive, because he provides that "their joint signature being

necessary to make all transactions legal growing into and out of this will." I am inclined to the opinion that, if the power of sale in this will is construed to be such an one as was exercisable by the executors after the death of the widow, this statute probably is broad enough in its terms to cause the power to survive to the remaining executor. I do not, however, consider it necessary to decide this question, because, in my view, it is clear that the power of sale conferred by this will upon the executors was solely to be exercised during the lifetime of the widow, and for the purpose solely of enabling them to make investments of the proceeds of sale at a greater rate of interest or income than that procurable from the real estate of the testator.

Translating the badly constructed and badly spelled clause (above quoted verbatim), I find that this testator provided that all other property of which he died seised might, at the discretion of the executors, be sold if they found that it was of more advantage to the interests of the widow to sell it, so that the proceeds might be invested in unencumbered real estate sufficiently productive to pay income, which income was to go to his widow during her natural life. After the death of his widow he clearly intended that the estate should go to his children or the living children of any of his deceased children, whether he legally expressed such intention or not. I am of opinion, therefore, that the naked power of sale vested in these executors by this will was limited during the lifetime of the widow and terminated at her death. The general principle will be found stated and supported by numerous authorities in 22 Amer. & Eng. Ency. of Law (2d Ed.) p. 1132: "Where a power is given to be exercised for a particular purpose, and such purpose has failed or has been accomplished without the exercise of the power, the power is exhausted."

I therefore conclude that the only matter set up by the answering defendant in this suit is not sufficient to defeat the equity of the complainant, and that there should be a reference in the ordinary form to determine the interests of the parties and the question of whether the property should be sold or partitioned.

and the return of service contained that name, though all of the files in the cause, except the master's report, were indorsed "R. S. Owens, defendant." Held, that a decree would not be granted until the Chancellor ordered the proceedings amended on a petition setting forth all the errors appearing in the record, praying for an order of correction, and accompanied with all necessary affidavits to satisfy the court that the error was purely clerical, and that the real defendant was in fact the person served with the citation and referred to by the name "Ownes."

Petition for divorce by Clara L. Owens against Roger S. Owens. Decree denied. George G. Runyon, for petitioner.

LEAMING, V. C. In this cause the name of the defendant is "Roger H. Owens." The citation is directed to "Roger S. Ownes," and the return of service contains that name. All of the files in the cause, except the master's report, are indorsed: "Roger S. Ownes, Defendant."

It seems reasonably clear that the error has occurred through the erroneous indorsement on the petition, and also that the real defendant, Roger H. Owens, was in fact the person served. It is manifest, however, that a final decree should not be advised with the record in its present condition.

A petition should be presented setting forth specifically all of the errors which appear in the record and praying for an order of correction. This petition should be accompanied with all necessary affidavits to satisfy the court that the error is purely clerical, and that the husband of petitioner was in fact the person served with the citation and the person who is referred to by the name "Roger S. Ownes." Upon such petition and proofs the Chancellor may, if so advised, order the proceedings amended under section 15 of the divorce act of 1902 (P. L. p. 506).

I shall decline to advise a decree upon the present record.

(75 N. J. L. 26)

HANKINS et al. v. NEWELL et al. (Supreme Court of New Jersey. June 10, 1907.)

1. QUO WARRANTO-CORPORATIONS-TITLE TO OFFICE.

Quo warranto is the appropriate remedy by which to test the title to office in a private corporation.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Quo Warranto, § 21.]

2. CORPORATION-PROXY-NECESSITY OF SEAL. A seal is not essential to the validity of a proxy to vote for officers at a corporate election.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 12, Corporations, §§ 767-776.]

(Syllabus by the Court.)

Application by the state, on the relation of Bunting Hankins and others, for writ of quo warranto to Howard L. Newell and others. Petition granted.

Argued February Term, 1907, before GARRISON, SWAYZE, and TRENCHARD, JJ.

James Buchanan, for relators. Edwin R. Walker, for respondents.

GARRISON, J. A petition for a writ of quo warranto was filed and a rule thereon made requiring the respondents to show cause by what authority they claimed to have, use, and enjoy the office and privileges of trustees of the Bordentown Cemetery Association; the petitioners claiming to have been elected to such office of trustees and that the defendants have usurped the said office.

The respondents contend in limine that the writ of quo warranto cannot go to inquire into an alleged usurpation of an office in a private corporation.

Such is the English rule. Shortt on Quo War. p. 129.

The American rule differs in this respect from the English. Mr. High, in his work on Quo Warranto, says: "The propriety of an information in the nature of a quo warranto as a remedy for an unlawful usurpation of an office in a merely private corporation was formerly involved in some doubt, but the question may now be regarded as settled in this country. This species of remedy being generally employed in England in cases of public or municipal corporations, the English precedents are inapplicable to this particular question and its solution must be referred to the more general principles underlying the Jurisdiction in question. Tested by these principles, an intrusion into an office of a merely private corporation may in this country be corrected by information with the same propriety as in cases of public or municipal corporations, since there is in both cases an unfounded claim to the exercise of a corporate franchise amounting to a usurpation of the privilege granted by the state." High on Extraord. Leg. Rem. § 653.

State

As early as the year 1827 the writ of quo warranto was so used in this court. v. Crowell, 9 N. J. Law, 390.

The provisions of the forty-second section of the corporation act for a summary review of corporate elections have no bearing upon the present question for the reason that such provisions when taken in connection with the other requirements of the act are confined to elections in corporations having stock. In re Election of Cedar Grove Cemetery Company, 61 N. J. Law, 422, 39 Atl. 1024.

Cedar Grove Cemetery Company was a stockholder's company. Coming to the merits of the controversy, the respondents contend that two of the three relators are ineligible to the office of title to which they are seeking to contest. This claim which is based upon the idea that each trustee must be the sole proprietor of an entire lot is not well founded. There is no such requirement in the act of incorporation, and, on the contrary, the implication to be drawn from the statutory qualification of voters is the other

way. Proprietors of undivided interests in a lot may vote, and the requirement as to trustees is that they "shall be chosen from among the proprietors of lots or plots." The case of Austin v. Atlantic City, 48 N. J. Law, 118, 3 Atl. 65, relied upon by counsel for respondents, turned upon a question of fraud, and is inapplicable here.

The remaining question is whether a seal is requisite to the validity of a proxy. The claim of the petitioners is that 130 legal votes given for them by valid proxies were rejected by the inspectors of election upon the sole ground that such proxies were not under seal. If the votes so rejected had been counted, the petitioners would have been elected. The act of the Legislature under which the association was organized provides that proprietors of lots "may either in person or by proxy give one vote for each plot or lot." There is no statutory requirement that the proxy thus authorized should be under seal, and our attention has not been directed to any general rule of law or to any line of reasoning by which that formality is rendered essential to the validity of a proxy. In re Election of Steamboat Company, 44 N. J. Law, 529. Our conclusion is that the prayer of the petition should be granted.

(75 N. J. L. 54) v. KIEFER. June 10, 1907.)

ATLANTIC CITY R. CO. (Supreme Court of New Jersey. CARRIERS WHO ARE QUESTION FOR JURY. Whether a person who has alighted from a standing train at a station, and who is crossing the railway tracks, by a planked way provided by the company for that purpose, after the train from which he has alighted has moved out, is still a passenger entitled to so cross without looking or listening, is a question of fact for the jury, where, under the proof, reasonable men may differ as to whether he was proceeding from the station platform to a place of safety within a reasonable time after he had alighted from the train.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 991-993, 1315.] (Syllabus by the Court.)

Error to Circuit Court, Camden County.

Action by Bertha Kiefer, administratrix, against the Atlantic City Railroad Company. Judgment for plaintiff. Defendant brings error. Reversed.

Argued February term, 1907, before FORT, PITNEY, and REED, JJ.

J. Willard Morgan and Thompson & Cole, for plaintiff in error. John W. Wescott and Ralph W. E. Donges, for defendant in error.

FORT, J. On August 31, 1903, Charles W. Kiefer was a passenger on a train of the Atlantic City Railroad Company, leaving Camden at 6:42 p. m., and due at Clementon Station at 7:15 p. m. The train arrived at the Clementon Station on time, and Kiefer alighted from it on the station platform on the west of the tracks. The railroad at this

point is double tracked; the tracks extending north and south. The station building at Clementon is on the west side of the tracks, and there is also a platform on the east side. From the station platform on the west to the passenger platform on the east there is a planked passageway across the tracks, which is provided for the use of passengers in crossing from one platform to the other, as well as generally by the passengers when leaving or boarding the trains. There was no fence between the tracks, nor other obstruction on the railway right of way at this point. It also appeared by the proof that, on leaving the train, passengers alighted from either side of the cars, as suited their convenience.

On the night in question several passengers alighted from the east side of the train and passed over the track adjoining that on which the train stood to the platform on the east, and thence off the same to the highway to go to their respective homes. Kiefer's most direct way to go home was to go across the tracks from the west platform, on which he alighted, to the east platform, and thence to the highway. On the night in question the train from which Kiefer alighted stood directly over the planked way. After he alighted the proof is that he stopped long enough to light his pipe, he having gone across the west platform to the side of the station building for this purpose. After lighting his pipe and after the train from which he alighted had pulled out for a distance, variously estimated by the witnesses as being from 175 to 700 feet from the place where he had alighted from the train, he proceeded to cross the tracks by the planked way from the station platform on the west to the passenger platform on the east, and was killed by an express train coming from the opposite direction from that taken by the train from which he alighted.

On this state of facts a nonsuit was asked, and, when the case was closed, there was also a motion for the direction of a verdict for the defendant. These motions, we think, under the authority of the case of Atlantic City R. R. v. Goodin, 62 N. J. Law, 394, 42 Atl. 333, 45 L. R. A. 671, 72 Am. St. Rep. 652, were rightly denied. Under the proof, (1) whether the deceased was a passenger, or (2) whether he was guilty of contributory negligence in what he did, or (3) whether the defendant was guilty of negligence in operating its trains, were all questions for the jury.

The plaintiff made three requests to charge, all of which were charged. The third request was as follows: "The deceased, Mr. Kiefer, was a passenger so long as he was lawfully and with ordinary care using the foot crossing in question for the purpose of crossing the defendant's tracks to get upon the public highway." The objection urged against the law as thus declared is that it took from the jury the question of whether Kiefer was or was not a passenger at the

time he was killed, and substituted therefor the mere fact that he was lawfully crossing the tracks at the time he was killed. If so, the charge was erroneous. If he was not a passenger at the time he was struck, he was required, in crossing the tracks, to exercise all the care that a reasonably prudent man would exercise in crossing railway tracks under like circumstances. The plaintiff's proof disclosed the fact that the deceased neither looked nor listened as he crossed, and it was therefore for the jury to say, if they found he was not a passenger, whether he was or was not guilty of contributory negligence in thus crossing. Whether, therefore, Kiefer was bound to anticipate the approach of a train from the opposite direction depends upon whether the jury should say, under the proof, that he was at the time he was hit still a passenger, passing from the train to a place of safety off the premises of the defendant company by the way provided by the defendant for that purpose. The effect of charging the third request was to practically charge that Kiefer was a passenger so long as he was lawfully crossing the tracks of the company, no matter how far the train from which he had alighted had moved out. The jury was told that Kiefer was a passenger so long as he was lawfully and with ordinary care using the planked way for the purpose of crossing to get to the public highway. This made the deceased a passenger from the mere fact that he was lawfully and with ordinary care crossing the planked way. One may be lawfully using a crossing such as the planked way proven in this case, and still not be a passenger. A railway track is a place of known danger, and the care required of one crossing the same who is not a passenger is such as is commensurate with the danger-the care that a reasonably prudent man would take under like circumstances. One might be crossing this planked way after having visited the station for any lawful. purpose, and hence be lawfully using the same, but this would not excuse him from the duty to look or listen for approaching trains. Whether a person passing across a railway track by a planked way provided for that purpose, after he has alighted from the train and after it has moved out from the station, is still a passenger and entitled to cross without looking or listening, is a question of fact for the jury, if there be controversy under the proof as to whether the person claiming to have been a passenger proceeded from the station to a place of safety within a reasonable time after alighting from the train. The rule is that the relation of passengers and carrier, when established, does not terminate until the passenger has reached his destination, alighted from the train, and had a reasonable time in which to leave the place where passengers are discharged. 4 Elliott on Railroads, § 1592; Houston & T. C. R. Co. v. Batchler (Tex. Civ. App.) 83 S. W. 902; Imhoff v. C. & M.

R. Co., 20 Wis. 344; 5 Am. & Eng. Ency. of Law, p. 497. The relation of carrier and passenger continues until the passenger has left the carrier's premises, or has been allowed a reasonable time to leave the premises. Hansley v. Jamesville & W. R. R. Co., 115 N. C. 602, 20 S. E. 528, 32 L. R. A. 543, 44 Am. St. Rep. 474. What, under all the circumstances, is a reasonable time, is a question of fact for the jury. Houston & T. C. R. Co. v. Batchler (Tex. Civ. App.) 83 S. W. 902.

Reasonable time is defined in Imhoff v. C. & M. R. Co., supra, as the time in which persons of ordinary care and prudence, under like circumstances, get off the car. The mere fact that a person is lawfully crossing a railway track is not enough to entitle him to claim the rights of a passenger. A person alighting from a standing train, and crossing the tracks to get to the station platform, a place of safety, is undoubtedly a passenger, and is not required to look or listen in anticipation that a train may pass and hit him. That law is too familiar to require any citation of authority. But this rule does not apply after the train moved out. Goldberg v. N. Y. C. & H. R. R., 133 N. Y. 561, 30 N. E. 597. How long may a person remain at a station, after alighting from the train, and after it has moved out, before crossing the tracks to get to a place of safety, and still remain a passenger and be freed from any duty to look out for himself in such a place of known danger? The court cannot, in such a case, take from the defendant the right to have the jury say whether the person injured was or was not a passenger. There must be some period of time after a train moves out of a station, when even one who has been a passenger, although lawfully crossing, cannot go blindly across the tracks without using any care to protect himself against the dangers that are always to be anticipated when crossing railway tracks. Hansley v. Jamesville & W. R. R. Co., supra.

In this case the proof was that the deceased, at the time he was hit, was not looking, but was walking leisurely with his head down. It was not even a clear case, under the proof, for refusing a nonsuit, but it certainly was a case where the jury must first find, to entitle the plaintiff to recover, that at the time the deceased was injured he was still a passenger, and hence free from the obligation to look or listen. If they cannot so find, there should be a verdict for the defendant, notwithstanding the fact that the person injured was lawfully crossing the tracks when the accident happened. One may be lawfully crossing railway tracks, and still not be a passenger entitled to assume that a train will not be moved along the tracks while he is crossing them to reach a place of safety, or for some other lawful purpose. A person who may be lawfully upon railway tracks, but who is not found to be a passenger, has no rights that rise higher than those which flow from the fact that he

is upon the tracks by the defendant's invi tation, and the law does not relieve such a person from the duty to exercise care commensurate with the dangers surrounding him.

The judgment of the Camden county circuit court is reversed, and a venire de novo awarded.

(75 N. J. L. 66)

HAUSER et al. v. GOODSTEIN. (Supreme Court of New Jersey. June 10, 1907.) EVIDENCE-ADMISSIONS-ACQUIESCENCE.

The rule that an undenied statement made in the presence of a person implicated or interested is a tacit admission of the facts asserted does not apply when such statement is made by a witness in the course of a judicial hearing in which the party implicated or interested could not interfere. To interrupt such proceeding to deny a statement made under such circumstances would be to charge the witness with perjury, and alike inconsistent with decorum and the rules of law.

[Ed. Note. For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 771-785.] (Syllabus by the Court.)

Appeal from District Court of Elizabeth. Action by Simon Hauser and others against Fanny Goodstein. Judgment for defendants, and plaintiff appeals. Reversed, and new trial granted.

Argued February term, 1907, before FORT, HENDRICKSON, and PITNEY, JJ.

John J. Stamler, for appellant. John K. English, for appellees.

FORT, J. This was an action to recover upon a book account. The account was sold to Joseph Goodstein, the husband of the defendant, and he was sued and judgment recovered against him therefor. Subsequently the plaintiff learned that in the purchase of the bill of goods in question Joseph was in fact only the agent of the defendant his wife. The defendant being an undisclosed principal, such a suit will lie. Greenburg v. Palmieri, 71 N. J. Law, 83, 58 Atl. 297.

A judgment was entered against the de fendant and this appeal is taken upon two grounds: First, the improper admission of evidence; second, the refusal of the court to direct a verdict. If the evidence objected to and here alleged to have been illegally admitted was admissible, then the refusal to direct for the defendant was not erroneous. The evidence admitted over objection was the testimony of Joseph Goodstein given in a suit for the claim of property, put in by this defendant, alleging she was the owner of many of the articles levied upon. The evidence of Joseph in that suit that he was acting as the agent of the defendant in purchasing the articles here sued for was offered and admitted over objection. The evidence we think was inadmissible.

It was, at best, a mere proof of a declaration of agency made by the alleged agent after the alleged agency was terminated. An