until the third mortgage is discharged; nor can the third mortgagee claim any of the fund until the prior incumbrance (the second mortgage) is discharged. There is no question in litigation between the second and third mortgagees. They make no point in the case. The mortgages must be paid according to their priorities. Should there be a surplus after paying all the mortgages, the widow, perhaps, may claim something more than the one third of the surplus. She may be entitled to her costs, and to have the amount of her interest in the fund, which went to pay the second mortgage, first deducted, and also to have the one third of the balance. But I have not well considered this point. When the property comes to be sold, it may be unnecessary to do so."

To hold that, under the circumstances of the present case, the wife of Morton Giles retains any inchoate right of dower in these premises, would lead to a rather strange result The amount of the decree, with interest and costs at the time of the sale, amounted to about $1,150. The amount of the respondents' bid was $1,255, being $5 more than that of another responsible and apparently anxious bidder, who was substantially their sole contestant at the sale. It thus appears that there will remain a surplus of about $100 after the complainant has been paid his decree and costs, which represents the equity of redemption. Now, upou the admitted facts of this case it seems to me quite clear that the defendant Tucker, as grantee of Morton Giles and wife, the mortgagors, will be entitled to that surplus money. I do not see how Mrs. Giles can possibly make any claim to it, what. ever equity she might have had in it if she had not joined in her husband's conveyance to Tucker. Now, the property was sold, according to the defendants' view of the evidence, upon the express statement that it was free from Mrs. Giles' inchoate right of dower, and on the strength of that statement it brought a price greater than the amount due the complainant on his mortgage, leaving a surplus, which will go, as I think, to Mrs. Giles' grantee, Tucker. Now, could it be possible that, after joining with her husband in a conveyance to Tucker of the equity of redemp tion, which is now represented by this surplus, she can still have a dower in the lands which she has so conveyed? seems to me that a rule which leads to such a result therein manifests its own vicious character. Further, it seems to me that it was clearly the right of Tucker, the grantee of Morton Giles and his wife, to have the property sold free and clear of Mrs. Giles' inchoate right of dower, for in that way, only, could he realize the full benefit of his conveyance. To make the matter clearer, let us suppose the present case to be that Morton Giles had died, and that then a bill to foreclose had been filed, and that she (Mrs. Giles) had been made a party defendant. Could she, by any answer to such suit, assert any equity which would give her any part of the proceeds of the sale? If any surplus appeared after paying the complainant, would not Tucker be entitled to it by virtue of his convey

It

It

ance from Mr. and Mrs. Giles? Further, if a decree in such a case could be framed which would confine the complainant to such a share of the proceeds of the sale as would be represented by the face of his mortgage, less the widow's dower, would not Tucker be entitled to all that remained after satisfying the complainant? seems to me that he would. The surplus moneys in such case would represent the equity of redemption which was conveyed by Mr. and Mrs. Giles to Mr. Tucker, and which he presumably paid them for, and it would be a manifest injustice to Mr. Tucker to take any portion of that, and give it to Mrs. Giles. For these reasons, which the able and elaborate arguments of the counsel for the respondents have induced me to state at greater length than was perhaps necessary, I feel constrained to advise a decree that the respondents do specifically perform their contract. The petitioner is entitled to costs against them.

In re ELECTRO PNEUMATIC TRANSIT

CO.

In re BOOKWALTER STEEL & IRON CO. (Court of Chancery of New Jersey. April 8, 1893.)

TAXATION CORPORATIONS INJUNCTION - JURISDICTION OF COURT OF CHANCERY.

Under the act of the legislature imposing taxes upon certain corporations and providing for the collection thereof, the only power given to, or duty imposed upon, the court of chancery is to issue an injunction when the attorney general presents a proper case. Faure Electric Light Co.'s Case, 5 Atl. Rep. 817, 43 N. J. Eq. 411, and New York File & Sharpening Co.'s Case, 5 Atl. Rep. 897, 43 N. J. Eq. 413, overruled.'

(Syllabus by the Court.)

Petition by the attorney general against the Electro Pneumatic Transit Company, and the same against the Bookwalter Steel & Iron Company, to restrain defendants from exercising their respective corporate franchises without payment of certain taxes. Decree for complainant.

W. Y. Johnson, for the State. H. N. Barton, for respondents.

BIRD, V. C. The petitions in these cases were filed by the attorney general, showing that the respondents had been assessed under the act of the legislature entitled "An act to provide for the imposition of state taxes upon certain corporations, and for the collection thereof," (Supp. Revision, p. 1017,) approved April 18, 1884, their refusal to pay, and praying for an injunction enjoining them from the exercise of any franchise of said corporation, or the transaction of any business, until the said corporation shall have paid said tax and interest due thereon. All the allegations in these petitions are admitted by the respondents severally, but each claims, in effect, that it has been unable practically to do or carry on any business, within the intent or purpose for which it was incorporated. Because of this fact, it is insisted that an injunction should not be issued, and for this purpose they rely

upon the cases heretofore decided by me. Faure Electric Light Co.'s Case, 43 N. J. Eq. 411, 5 Atl. Rep. 817, and New York File & Sharpening Co.'s Case, 43 N. J. Eq. 413, 5 Atl. Rep. 897. These cases support the contention of the respondents; but on behalf of the state it is insisted that a very recent decision of the supreme court (State v. State Board of Assessors, 25 Atl. Rep. 329) is directly in conflict with them. I think the merits of that decision are closely and fully stated in the headnotes, as follows: "A manufacturing company, to bring itself within the proviso of section 4 of the act of April 18, 1884, (Supp. Revision, p. 1017.) must be actually engaged in the business of manufacturing in this state." "A manufacturing company wishing to withdraw from active business must, to escape taxation, take proceedings under the thirty-fourth section of the corporation act to dissolve and surrender its charter and wind up its affairs." Although in this opinion no reference is made to the cases above stated, I cannot but regard it as effectually overruling them. The subject-matter being the proper construction of a statute respecting the imposition of taxes, over which the legal tribunals have complete jurisdiction, except so far as the legislature may otherwise provide, their determination must be final as to all parties concerned. The fourth section of the act referred to, after fixing the liabilities of certain corporations, declares "that all other corporations incorporated under the laws of this state, and not herein before provided for, shall pay a yearly license fee or tax of one tenth of 1 per centum on the amount of the capital stock of such corporations: provided, that this act shall not apply to railways,

or manufacturing companies, or mining companies, carrying on business in this state." Under this statute every manufacturing corporation is liable to pay a tax of one tenth of 1 per cent. upon its capital stock for the license privilege or right which the state grants to it, unless it carries on the business of manufac turing in this state. If it does not pay the taxes imposed within the time specified, the attorney general may ask this court to issue an injunction restraining it from doing any business under its charter. I think, therefore, it is proper to say that whenever it appears that a corporation exists under the provisions of the act above quoted, which does not come within the exceptions therein named, and an assessment has been made against it which It does not pay, it is subject to be enjoined by the decree of this court from the transaction of any business. As long as such a corporation enjoys the license or privilege extended to them by the statute under which they are incorporated, they should respond to the taxes imposed under the act now under consideration, unless it can show that it is within the exception. The respondents are manufacturing corporations; each one has been assessed; neither has been engaged in doing business in this state. Consequently, the assessments not having been paid, a "proper case" has been made out for the interference of this court by its injunction;

The other facts fully appear in the fol│lowing statement by PITNEY, V. C.:

The object of the bill is to obtain the direction of the court in the final execution of the will of James H. Dandy, deceased. The clause of the will upon which the executor is in doubt is as follows: "Third. All the rest and residue of my property, both real and personal, I give and devise to my executor, hereinafter named, in trast, nevertheless, to pay all the interest, income, and profits thereof to my wife during the term of her natural life, and upon her death to pay and dispose of said principal sums as follows, viz.: To my niece Sarah D. Huff the sum of fifteen hundred dollars; to my niece Charlotte Bush the sum of one thousand dollars; to John Davis, of the town of Belturbet, Caven county, Ireland, the sum of fifty dollars per year for and during the term of his natural life, my executor being hereby directed to retain in his hands and invest a principal sum sufficient to yield said income, and upon the death of the said John Davis the said principal sum is to be paid to the Wesleyan Methodist Society of Belturbet, Caven county, Ireland. All the remainder of the property is to be paid to the Wesleyan Methodist Society of Ireland." The question is whether the be quests to the Wesleyan Methodist Society of Belturbet and to the Wesleyan Society of Ireland are good.

Two several answers were filed by leave of the court, one by three gentlemen "on behalf of the Society of People called Methodists, of Belturbet, Caven county, Ireland, which society is commonly known as the 'Methodist Society of Belturbet,'" and "was formerly known as the 'Wesleyan Methodist Society of Belturbet;'" and another by two gentlemen "on behalf of the Society of People called Methodists in Ireland, commonly known as the 'Methodist Society of Ireland,' and was formerly known as the Wesleyan Methodist Society of Ireland.'" By these answers, whose allegations are not put in issue, it appears that the great John Wesley, the founder of Methodism in Christian religious worship, and of the Christian sect called "Methodists," about the middle of the last century founded in various

parts of Great Britain and Ireland a number of religious societies, with preachers and chapels and houses of worship, all under the governmental control of an assembly of all the preachers, called a "conference." Such a conference was established in Ireland under the provisions of a deed executed by Wesley himself, and the organization under it has continued until the present time. The various societies whose preachers composed the conference acquir ed real property, which was vested in local trustees, and was transmitted from generation to generation, so that, although never legally incorporated, they had still, by means of the machinery of trustees, maintained and enjoyed perpetual succession both in their organization and in the title to their property. The aggregate of these several local societies was known as the "Society of People called Methodists." After the death of Weslev several secessions from the original society took place in Ireland, and, for distir ction's sake, a prac tice arose of calling the original society founded by Wesley himself the "Wesleyan Methodist Society." In 1816-1818 a division occurred in the original or Wesleyan Methodist Society of Ireland, and a new society was formed, composed, of course, of numerous local societies, which adopted the name of the "Primitive Wesleyan Methodist Society of Ireland." It thus happened that from 1818 to 1878 there existed in Ireland two general societies, composed of numerous local societies, called respectively the Wesleyan_Methodist Society of Ireland" and the "Primitive Wesleyan Society of Ireland." In 1871 the British parliament passed an act (34 & 35 Vict. c. 40) entitled "An act to alter and regulate the provisions and powers of the Primitive Wesleyan Methodist Society of Ireland, and for other purposes." This act is cited as the "Primitive Wesleyan Society of Ireland Act. This act recognizes the organization, discipline, and creed of the society by annexing it as a schedule to the act, and by referring to it in its body. It declares that all property held in trust forit shall continue to be held upon the trusts upon which it was then held until such trusts shall be changed by conference; that the design, discipline, Jaws, rules, etc., then prevailing shall continue until altered by vote of conference, and shall govern all members, and be capable of being enforced in the temporal courts in relation to property; that the society might by vote of conference unite or Co-operate with any church or religious body or association in Ireland, and might appoint standing "trustees to hold real and personal property for the society, or for any district, circuit, or station thereof, and fill vacancies from time to time, each appointment of a trustee to be enrolled in the Irish chancery; and that all property once vested in said trustees shall continue to be held by such trustees upon such trusts as conference may decide. It does not appear that any trustees were appointed by the Primitive Society under this act. Afterwards, in 1878, the two 80cieties above named united in one society, in pursuance of the provisions of this act. One of the terms of the union was that v.26A.no.9-30

the distinctive terms "Wesleyan" and "Primitive Wesleyan," by which they had previously been known, be dropped, and the term "Methodist" alone be used. At the date of the will there was no society in Ireland bearing either of the distinctive names used by the testator in his will.

The testator was, before coming to this country, a resident of Belturbet, and a member of the Primitive Methodist Society of Ireland. There were at that time at Belturbet both a Primitive Methodist Society, forming part of the Newtown-Butler circuit of the Primitive Wesleyan Society of Ireland, and also a Wesleyan Methodist Society, which formed a part of the Clone circuit of the Wesleyan Methodist Society of Ireland. At the union above mentioned these societies were also united, and became known as the "Belturbet Circuit." The testator was connected with the Primitive Wesleyan Society of Belturbet. His will was made in this country in 1882. In 1876 the conference of the Wesleyan Society appointed trustees to hold property in trust for the society and its component societies in the manner provided in the act of parliament above set forth. Under what authority this was done does not appear, as the act above referred to did not apply to such society, and my attention was not called to any act which does. The trustees so appointed executed a declaration of trust, which has been enrolled in the Irish chancery, and have continued to act to the present time. A part of the constitution of the local societies or circuits is that there shall be "stewards," who look after the temporal affairs of the society, and receive and disburse its moneys. Of the three defendants who have answered on behalf of the Belturbet Society one is the superintendent minister of that circuit, and the other two are the stewards thereof.

B. A. Vail, for complainant. Thomas J. Kennedy, for defendants.

PITNEY, V. C., (after stating the facts.) 1. I think there can be no doubt that the two societies named by the testator in his will are respectively the local Methodist Society of Belturbet and the general Methodist Society of Ireland. The addition by the testator of the word "Wesleyan" does not, in my judgment, throw the least doubt on his meaning. The previous existence there of two societies of one faith, and, in the main, of one discipline, with one of which he was connected, and their subsequent union into one society, of which union he was probably aware, seems to leave no room for doubt. The case, as to this part of it, is far within the range of authoritative decisions, too numerous and familiar to require citation.

2. It seems to be settled by what I conceive to be the weight of authority, and in accord with reason, that a voluntary unincorporated association may be a legatee of a legacy like this. It is to be observed-First, that there is here no devise of real estate, requiring a person, natural or artificial, capable of holding the title; and, second, that there is no perpetual continuing trust, which can be adminis

tered only by such a person. The gift is of money, and is absolute and unlimited by any trust except such as is implied by its being given to a religious society. There is no limitation of the gift to the use of the annual income, nor to any particular purpose, such as is often found in such testamentary dispositions. In order to carry out the intention of the testator, we have only to see to it that the gift reaches the proper officer of the association. What shall afterwards become of it does not concern the court, as, so far as appears, it did not the testator.

He ap

pears to have been satisfied to give the money to the association without any direction as to how it was to be used, relying, as he might well do, upon the general and established character of the society. That an unincorporated association of this character is competent to receive a di rect and unlimited gift of money was admitted to be settled law by Sir John Leach in Wellbeloved v. Jones, 1 Sim. & S. 40. There the bequest was to the officers of an unincorporated theological seminary, in trust to use the income and interest in certain specified charities. The suit was brought by the officers of the school against the executors, without bringing in the attorney general. It was held that the attorney general must be brought in, "because the king, as parens patriæ, superintends the administration of all charities, and acts by the attorney general." and that a proper trust must be established, etc. Sir John Leach, however, adds these words: "It has been held not to be necessary that the attorney general should be a party where a legacy is given to the treasurer or other officer of some established charitable institution, to become a part of the general funds of that institution; and this exception is reasonable, for the attorney general can have no interference with the distribution of their general funds." And Mr. Boyle, in his treatise on Charities, (page 217,) states this as the law in England. And this principle seems to have been acted upon without question in Johnstone v. Earl of Harrow by, 29 Law J. Ch. 145, 1 De Gex, F. & J. 183, where I infer the bequests were to unincorporated societies. And Mr. Perry, in his treatise on Trusts, (section 730,) cites other English as well as American cases in support of the same rule. The case of the Evangelical Association's Appeal, 35 Pa. St. 316, was so much like the present as to be indistinguishable, and the subject there received full consideration by Justice Strong, who reviewed the authorities, and whose language and judg. ment apply here. The same rule is supported by the judgment of Mr. Justice Baldwin in Magill v. Brown, reported in Brightly, N. P. p. 347, note, and Blenon's Estate, Brightly, N. P. 339. To the same effect are the earlier cases in New York. Potter v. Chapin, 6 Paige, 639, where Chancellor Walworth (page 649) says that the contrary decision of Baptist Association v. Hart's Ex'rs, 4 Wheat. 1, is generally admitted to be wrong; Wright v. Trustees, 1 Hoff. Ch. 202, at pages 239, 265; King v. Woodhull, 3 Edw. Ch. 79; Hornbeck v. Society, 2 Sandf. Ch. 133; Banks v. Phelan, |

4 Barb. 80. In that case there was a bequest of $3,000 "to the Roman Catholic Church of Petersburg, in the state of Vir. ginia," an unincorporated religious society. The learned judge, in his opinion, (page 89,) of this bequest says: "It appears, however, that this is an unincor. porated institution, and it is contended that for that reason the legacy is void. The legality of bequests for pious and charitable uses, though for the benefit of unincorporated associations, is so well es tablished in this state that it is barely neeessary to refer to the authorities." He then cites some of the authorities above cited, and proceeds: "In this case, however, the will does not create a trust. It gives the legacy directly to the objects of the testatrix," and he held the bequest good. The later New York cases lean the other way. In Owens v. Society, 14 N. Y. 380, an unlimited bequest to an unincorporated association was held void because the general objects of the association were not charitable, and on that ground it was distinguished from the cases just cited. In Sherwood v. Society, 40* N. Y. 561, a bequest as follows: "I give and bequeath unto the Arcot Mission of the Reformed Dutch Church the sum of $3,000, to be used for the education of the heathen boy on whose account I have heretofore advanced money," was held void because the asso ciation was unincorporated, and therefore unable to act as a trustee of a special, continuing trust, as that was held to be. The opinion makes no mention of the cases earlier than Owens v. Society, which it cites as holding the general proposition that a voluntary association cannot be a legatee. White v. Howard, 46 N. Y. 144, was a case of a devise of lands, and may well stand on that ground. Numerous other cases in accord with those first above cited are found in Mr. Randolph's learned note on the subject. 1 Jarm. Wills, (Rand. & T. Ed.) pp. 410-412. A review of these leads me to the conclusion first above stated, that a direct gift of money without limitation as to its future use, to an unincorporated charitable association, is good.

3. But if it were necessary to the validity of the bequests here in question to hold that the legatee should have corporate capacity, I should be inclined to hold that the act of parliament before referred to was sufficient for that purpose. It expressly provides the machinery by which the society may acquire and hold for its purposes real and personal property, and it impliedly, at least, authorizes such acquisition and holding, and subjects it to the purposes of the society as declared by its governing body. The same act authorizes the grantee of this power to unite with any other church, religious body, or association in Ireland, but says nothing of the effect of such union upon the exercise of the power thus granted. I conclude that the effect would not be to destroy the power, but rather that it would be perpetuated in the association to result from the union. The result would be that the trustees previously appointed by the Wesleyan Methodist Society would, by the union, acquire the rights and be subjected to the

duties and restrictions prescribed in the act.

4. The character and objects of the legatees are beyond question. It is a matter of history and general knowledge, of which the court takes notice without proof, that the societies formed by Wesley in the British isles and in this country were, and still continue to be, societies engaged in promoting the Christian religion, and therefore charitable. Money given to any such society is presumably given to charity, and the gift will be upheld. I will advise that the gifts are valid; that the fund set apart for the annuity of $50 may be paid to the "stewards," for the time being, of the Belturbet circuit, and the residue be paid to the permanent trustees of the general society or conference for Ireland. Such payment may be made under the supervision of a special master, and upon such rouchers as he may approve; and upon his report a decree may be made discharging the executor. Costs of both parties, with a reasonable counsel fee to be fixed, will be paid out of the fund.

REEN et al. v. WAGNER et al. (Court of Chancery of New Jersey. April 21, 1893.)

WILLS-CONSTRUCTION-HEIRS.

Where money or personal property is bequeathed to the heirs of A. or the heirs of the testator, if there be nothing in the will to show that the testator used the word "heirs" in a different sense, the next of kin are entitled to claim under such description, they being the persons appointed by law to succeed to the personal property.

(Syllabus by the Court.)

Bill by Charles Reen and Hiram Reen surviving executors of the last will of Philip Reen, deceased, against George William Wagner, Mary Wagner, Abiman R. Wagner, and Charles W. Wagner, for a construction of decedent's will. Heard on bill and answers.

B. C. Frost, for complainants. S. C. Smith, for defendant George W. Wagner. Paul A. Queen, for the other defendants.

MCGILL, Ch. Philip Reen died in the .month of September, 1875, leaving a will, to which two codicils were annexed, which was duly proved on the 29th of October, 1875. The will bears date on the 12th of June, 1868, and, after providing some specific legacies, directs that all the testator's personal estate, "including bonds, notes, and stock, and other evidence of debt, shall be converted into cash within one year after his decease, which cash, after paying therefrom the debts and funeral expenses of the testator, and the cost of a monument, is given and bequeathed as thereafter in the will the proceeds of the sale of the testator's real estate are bequeathed. Following this disposition of personalty is an absolute direction to the executors to sell the testator's farm at public vendue within two years after his death, after which direction the will continues in this language: "I give and bequeath the proceeds thereof in equal shares

as follows: One share to my son Charles, one share to my son Philip, one share to my son Hiram, one share to my son Jacob, one share to my son John, one share to my son Theophilus, one share to my daughter Mary Calvin, one share to my daughter Sarah Ann, one share to my daughter Hannah, one share to the daughter of my deceased daughter Elizabeth Gano, one share to the children of my deceased daughter Sophia Wagner. It is my wil! that one thousand dollars of the share of my real and personal estate hereby bequeathed to Albert Wagner, one of the children of Sophia, shall remain as a charge upon said real estate at lawful interest, said interest to be paid to said Albert annually during his life, and at his death the principal to his heirs." By the first codicil to the will, which bears date on the 3d day of July, 1871, the provision of the will with respect to Albert Wagner is changed by this language: "And further, in particular to the provisions in said will that one thousand dollars bequeathed therein to Albert Wagner shall remain as a charge on the real estate, which I hereby revoke, and alter my said will, and order and direct that the whole of the share bequeathed to said Albert shall remain as a charge on my real estate, whether said share will amount to one thousand dollars or not." The testator's daughter Sophia died before the will was made, leaving two sons, Albert and George W. Wagner, and her husband, their father, surviving her. The husband married again, and by his second wife had three children, the defendants Mary Wagner, Abiman R. Wagner, and Charles W. Wagner. The share of the proceeds of the testator's real and personalestate which was to be divided between Sophia's children amounted to $2,863.19, one half of which, $1,431.59, was invested by the executors of the will upon bond and mortgage upon the farm. Albert Wagner died in April, 1891, unmarried, and without leaving lawful issue. I understand that his father died before him. The complainants, who are the surviving executors, are prepared to distribute the principal of the moneys invested for Albert, but are in doubt as to the proper meaning of the will. Albert's brother of the whole blood, George William Wagner, claims that he is entitled to the whole sum of money as the "heir" at law of Albert, insisting that the word "heirs," as used in the will of his grandfather, was intended in its strict literal significance, so that the devolution of Albert's money should be to him alone, like real estate. Revision, p. 297, § 2. Upon the contrary, Mary Wagner and her brothers of the half blood, claim that they are each entitled to one fourth of the moneys held for distribution, insisting that the word "heirs," as used in the will, is intended to signify the next of kin to Albert, including themselves, equally with Albert's brother of the whole blood.

It is the cardinal rule in the interpreta tion of wills that the testator's intention, as it is manifested by his will, shall control. In seeking that intention, courts, by a long line of adjudications, have given a fixed meaning to certain phrases, words, and methods of disposition, which govern