disclosure. Besides, his prior experience in signing other writings for his mistress had not involved him in trouble, and hence fear of liability or other misfortune did not excite him to either open inquiry or mental speculation as to the distinctive character of the writing. Constrained by his position and experience, and possessed of duller faculties than Mrs. Buzby, he signed the document without knowledge, and without even reaching a satisfactory inference or conjecture as to its character. memory. The crucial point in his testimony is as to the operation of his mind at the very time when the will was executed. Did he then draw the same inference that Mrs. Buzby drew? He gave no indication of his mental operation then, and now be alone can tell what it was. I can understand that circumstances might be so plain that I would not be able to reconcile a witness' denial of such an inference or implication with truth. For instance, if the will, or even the attestation clause, had been read, or he had been requested by the testatrix shortly before to attest the execution of her will, his denial that he knew that a will was being executed could hardly be received. But are circumstances which forbade him to inquire concerning the nature of the paper he signed, or circumstances from which only uncertain deductions could be made, of this plain character? I think not. Unless a witness is most clearly shown to be utterly unworthy of belief, his positive testimony must stand against even a perfect attestation clause, which, under full disclosure of all that was said and done, is supported solely by equivocal acts and words, which are fairly susceptible of a meaning inconsistent with the act of will when it appears that the witness knew nothing of the contents of that attestation clause. To serve as a sufficient substitute for express declaration, that which is said and done should plainly lead to the single necessary inference that the document executed is the testator's will. The character of the paper should distinctly appear to the witnesses. Elkinton v. Brick, supra. Mr. Justice Scudder, in writing the opinion of the court of errors and appeals in Ludlow v. Ludlow, supra, after stating that declaration of a will need not be by the testator's own words, said: "But he must by word or sign clearly indicate his recognition of the testamentary act," etc. I feel compelled to conclude that it does not appear that the testatrix declared her will in conformity with the requirements of the statute. This conclusion leads to the rejection of the instrument. The decree of the orphans' court will be reversed. Taking as true the statement of Mr. Engle, which is denied by Haines, and the latter part of which Mrs. Buzby fails to remember, that, with pen in hand, he announced to the witnesses that Mrs. Wilkins had been making a change in her writings, and that the law required two witnesses to her signature, is the case stronger? The expression "change in her writings" possibly might lead to inference that the writing was a will, but the accompanying unnouncement that the signature, and not the act of will making, was to be witnessed, appears to be calculated to destroy that mental inclination. It is to be noted that this witness differs from both of the subscribing witnesses in his statement of the remark made by Mrs. Buzby when she hesitated to sign. The subscrib-making; and especially is this the case ing witnesses say that her objection was to signing when she did not know what she was doing, but Engle puts it that the objection was to signing without knowing what was in it,- that is, the contents of the paper. But it is to be observed that Mr. | Engle does not substantially differ from the subscribing witnesses in stating his reply to Mrs. Buzby's remark. He says that his reply was that she would not be called on; she need not worry herself about it. The evident design of that answer was to allay apprehension of responsibility, not to curb curiosity. It was a reply addressed to one who did not understand the character of the document, rather than to one who wished to be informed as to its terms. I apprehend that Mr. Engle does not mean to suggest by the language in which he clothes the statement of Mrs. Buzby that her remark was the product of curiosity, rather than of ignorance of the effect of the paper she was asked to sign and apprehension of harm, and that his testimony, therefore, does not substantially conflict with the testimony of the subscribing witnesses upon this point. From all the witnesses who were present at the transaction, then, we have a full statement of that which transpired, which not only clearly fails to show an express declaration of the will, but exhibits that the matter relied upon as an implied declaration was not only indecisive of the character of the paper, but affected the witnesses differently. It led one to a correct inference, but failed to impress the other, or lead him to mental inquiry. Here I may properly say that I have considered the animadversions upon the testimony of the witness Haines without being persuaded that he would or did deliberately perjure himself. He has been contradicted, but that may be due either to his stupidity or to honest mistake through lack of observation or NORTH WARD NAT. BANK OF NEWARK CREDITORS' BILL FRAUDULENT CONVEYANCESASSIGNMENT FOR BENEFIT OF CREDITORS. C. and K., partners, being insolvent, conveyed all their property to S. for the nominal consideration of one dollar, upon the trust, expressly declared upon the face of their deeds, to convert the property into money, to use the same to complete unfinished contracts which C. and K. had undertaken, and for the comple tion of which they were responsible, and, after retaining compensation for his services, to pay the surplus in his hands to all the then existing creditors of C. and K., who are named in the deeds, preferring some, who are specially designated for that purpose. The deeds contained a provision that S. should reconvey to C. and K. if they should, before the execution of the trust, produce to him releases from all the creditors named. Held, that the deeds are void against a judgment creditor who has not accepted them, within the first section of the assignment act, (Revision, p. 36,) and within the twelfth section of the statute of frauds, (Revision, p. 446.) (Syllabus by the Court.) Creditors' bill by the North Ward National Bank of Newark against Edward L. Conklin and others. Heard on original and supplemental bills and answers thereto. Decree for complainant. The other facts fully appear in the following statement by MCGILL, Ch.: The bills are filed by a judgment creditor for the purpose of having the two deeds hereafter referred to declared void and set aside, the judgment debtors having no other property out of which the judgments can be satisfied thau that which said deeds purport to convey. On the 23d of February, 1892, the day on which the first of the complainant's judgments was recovered, Edward L. Conklin and Isaac W. King, who were partners trading as William King's Company, with their wives, executed the deeds in question, dating them on the 18th of that month. One of the deeds, after reciting that Conklin and King had theretofore carried on business as copartners, and had become embarrassed, and were unable to continue their business, because of "the litigations constantly brought against them," and that they were anxious that the whole of their estate should be applied to the payment of their debts in a manner thereinafter specified, and that, if there should be a surplus of estate after such payment, it should be returned to them, purported, for the consideration of one dollar, to convey to the defendant Joseph M. Smith all the property of the firm, including its real estate, goods, chattels, moneys, rights, and credits, "and all other assets of every nature, kind, and description belonging to said business," upon the following trust, to wit: (1) To sell and convert into money said estate, as speedily as possible, without sacrifice of the interest of the creditors mentioned, and to lease pending sale. (2) To complete and carry out unexecuted contracts of the firm, or to subJet, assign, or compromise them. (3) To pay wages of employes and other expenses, including expenditures for material, incident to the completion of the contracts; also to pay taxes and interest on incumbrances on the property conveyed. (4) To retain, as compensation for his services, a sum equal to the commissions usually allowed to executors, administrators, and the like. To pay all surplus after the payment of specified debts to Conklin and King. (5) To pay 48 specified creditors the sums set opposite their respective names, "consecutively, and not simultaneously." (6) After these creditors shall be paid, to pay 56 other creditors pro rata, simultaneously, until they shall be paid. (7) If Conklin and King, or either of them, should, be. fore the trust is executed, obtain and present to Smith releases from the creditors named, then to return to them the estate, or so much of it as shall remain. The other deed was made by Isaac W. King and wife. It purported to convey, in consideration of one dollar, to Joseph M. Smith, in trust, a tract of land in Essex county, and also all the right, title, and interest of King in and to his father's estate, and in and to seven tracts of land which are described in the deed, belonging to the father's estate, one of which tracts is in the state of Florida. This deed, like the other, contains a recital that the firm to which King belonged has become embarrassed, and is unable to continue its business, and that it is desired that its whole estate should be applied to the payment of its debts, adding thereto that the firm had conveyed its estate by deed of even date to Smith, and that King is possessed of other property which he desires to be applied to the payment of his debts and obligations, and that he has been advised that his separate property is primarily liable for the payment of his individual debts. The trust upon which the deed is made is as follows: (1) To sell and convert the property into money, and first pay thereout individual creditors of King, designated in the deed, pro rata. (2) To complete and carry out the unexecuted contracts of the firm William King's Company, or to sublet, assign, or compromise them. (3) To pay wages of employes and other expenses, including expenditures for materials, incident to the completion of the contracts, aud to pay taxes and interest on incumbrances on the property of the firm William King's Company. (4) To retain compensation, as in the other deed provided, and to render all the surplus, after the payment of specified debts, to King. (5) To pay the same 48 specified creditors of the firm as in the other deed provided. (6) After the payment of those creditors, to pay the 56 other creditors of the firm in the same manner as provided in the other deed. (7) If the said firm or King should, before the trust be executed, obtain and present to Smith releases from the creditors named, then to reconvey to King the property conveyed. Upon the delivery of these deeds to him, Smith caused them to be recorded, and entered into possession of the premises which they purport to convey, as far as he could do so, and since then has retained that possession, and proceeded to execute the trusts. He has employed Isaac W. King as a clerk to assist him in his performance of that duty. The lists of creditors set forth in the deeds were intended to include all firm creditors and all the creditors of King individually, and did include all actually existing creditors at the date of the deeds, but did not include the holders of commercial paper upon which the firm was then contingently liable as indorser, which had not reached maturity. When the deeds were made the firm was actually indebted to the complainant in the sun of $750, and that amount was classed and enumerated with the firm's debts that were to be paid secondarily, pro rata. The partners, however, were then indorsers upon some $20,000 worth of negotiable paper, not due, which the complainant had discounted for them. Afterwards about $17,000 worth of this paper was paid at maturity by the makers thereof, and for the remainder, which was not paid, the complainant has recovered, since the filing of the original bill, the several judgments set out in the supplemental bill. The complainant has not accepted or ratified the deeds in any way, but, on the contrary, has recovered judgments upon all its claims, and under them caused the properties included in the deeds to be levied on. When the deeds were made it was unknown whether, in the execution of the trusts, Smith would realize a surplus beyond the payments he was required to make. M. J. De Witt, for complainant. Philemon Woodruff, for defendants Conklin and wife, King and wife, and Smith. Amzi D. Taylor, for remaining defendants. peal, 48 N. J. Eq. 310, 24 Atl. Rep. 131; Landon v. Hutton, (N. J. Ch.) 25 Atl. Rep. 953, Such a reservation does not intend redemption by payment, but stands merely as a precautionary provision, available to the debtors in case of settlement with their creditors. The deeds do not declare that the property is to be held as security for the payment of the creditors, but that it shall be appropriated to their payment after it shall have served to save the debtors from further responsibility by reason of their uncompleted contracts. I do not perceive any warrant for regarding the deeds otherwise than that which they plainly purport on their faces to be, voluntary assignments for the benefit of creditors. while in the case considered all creditors are to be delayed until the debtors' liability to loss by reason of uncompleted contracts shall be terminated. In Muchmore v. Budd the grantee gave valuable consideration for the instrument in the shape of money advances, while here so nominal a consideration supports the trust that the trust must, in every sense, be esteemed voluntary. It is true there is here reserved that which is claimed to be an equity of redemption, but it is couched in terms less consonant with the theory of payment of the debts than with suggestion of the exaction of forgiveness or compromise from unwilling creditors by the enforced situation which their debtors have created. It is observed that the deeds do not contemplate reconvey. ance upon payment of the creditors or MCGILL, Ch., (after stating the facts.) upon tender of a sufficient sum of money It is claimed that the deeds here attacked to the trustees to satisfy them, but reare, under the ruling of the court of errors conveyance upon the production of reand appeals in Muchmore v. Budd, 53 N. leases, by which the only effectual forgiveJ. Law, 369, 22 A tl. Rep. 518, to be regardedness of debts may be had. Tulane v. Clifas lawful mortgages, and not as assign-ton, 47 N. J. Eq. 351, 20 Atl. Rep. 1086; on apments in trust. In the case referred to, a debtor, by bill of sale, transferred all his property, except his wearing apparel, to one who, in consideration thereof, paid for certain goods delivered to the debtor, and bad satisfied a judgment against him, under a parol agreement, however, that the assignee would dispose of the property at private or public sale, and, after satisfying his advances, pay designated creditors specified amounts, and return the surplus, if any, over the payments, to the debtor, the debtor having the right mean while to redeem by himself making the payments provided for. It is noted in that case that there was a conveyance of the debtor's entire estate, to be disposed of to pay designated debts. The arrangement did not contemplate Regarding them, then, as assignments provision for all existing creditors, or for the benefit of the creditors, they apa deliberate delay in the disposition of pear, upon well-settled authority in this the property, which would tend to defeat state, to be void, upon the ground that, or delay any and all creditors, wheth- in making preferences, they contravene er preferred, subordinated to the pre- the statute to secure to creditors an ferred, or omitted altogether, in reaching equal and just division of estates of the equity of redemption. In the present debtors who convey to assignees for the case the debtors sought to transfer their benefit of their creditors. The first secentire estate upon a trust expressly de- tion of the statute referred to (Revision, clared in the instrument that it should p. 36) is in this language: "That every confirst be held in service of the debtors to veyance or assignment made by a debtor complete certain contracts, for the per- or debtors of his, her, or their estates, formance of which the debtors were re-real or personal, or both, in trust to the sponsible, and thus terminate their lia-assignee or assignees for the creditors of bility therefor, unless such liability could such debtor or debtors, shall be made for be terminated by the trustee by assign-their equal benefit, in proportion to their ment or compromise of the undertakings; several demands to the net amount that and, second, that it should be ultimately shall come to the hands of said assignee distributed among all creditors existing | or assignees for distribution; and all prefat the date of the deeds, according to the erences of one creditor over the other, or trust, which gave preference to some of whereby any one or more shall be first them. It is thus apparent that there is a paid or have a greater proportion in most pronounced distinction between the respect of his, her, or their claim, than two cases. In Muchmore v. Budd the another, shall be deemed fraudulent and entire estate was devoted to the payment void, except mortgage or judgment credof favored creditors, without reference to itors, when the judgment has not been those who were not favored, while in the by confession for the purpose of preferring present case the instrument creates a creditors." In Tillou v. Britton, 9 N. J. trust for distribution among all creditors, Law, 120, 138, (in 1827,) Mr. Justice Drake, some of them being expressly preferred. cominenting upon this statute, said that In Muchmore v. Budd there was to be an its operation was not intended to be eximmediate application of the property, tended to the case of a transfer by a fail ing debtor of a single portion of property to a creditor in satisfaction of his debt, but must be limited to cases where there is something like universality in the assignment, or, in the language of the act, "where the debtor's estate is assigned." The deeds in question possess this universal character, both as regards property | and as regards creditors, and they are thus removed from the region of simple preference of a single creditor or a few chosen creditors, which has always been teemed to be lawful. They are general assignments of all the debtors' property for the benefit of all their existing cred. itors. In Varnum v. Camp, 13 N. J. Law, 326, Chief Justice Ewing (in the supreme court, in 1833) said of such assignments for creditors: "The statute declares how they shall be made; that is to say, for the equal benefit of the creditors, and not merely that such shall be the effect in what way soever made. An assignment, therefore, made in a manner prohibited and forbidden, must be invalid. The express denial of preferences is in truth but an amplification of the antecedent clause of the statute, and, without really adding anything to its extent, or perhaps to its force, serves to express in distinct terms the legal effect and operation of that prior clause. It follows, then, that where an assignment not made for the equal benefit of the creditors, but whereby a preference is sought to be given to any one not a creditor by mortgage or judgment, over another, is, in contemplation of law, fraudulent and void." In Owen v. Arvis, 26 N. J. Law, 22, (in the supreme court, in 1856,) Chief Justice Green approved this interpretation of the statute, and proclaimed its policy prohibiting preferences to be enforceable where the assigninent is, in substance, though not in form, a trust for creditors; and in this he is followed in this court by the well-considered cases of Fairchild v. Hunt, 14 N. J. Eq. 367, and Livermore v. McNair, 34 N. J. Eq. 478. The construction of the statute announced in Varnum v. Camp was approved by the supreme court in 1857, in Garretson v. Brown, 26 N. J. Law, 425, upon the understanding that it decided an assignment in trust for creditors to be void, where the preferences are incorporated in the assignment itself, and its decision in that case was affirmed by the court of errors and appeals without opinion. 27 N. J. Law, 644. The same meaning was attributed to the statute by Chancellor Williamson in 1853, in Brown v. Holcomb, 9 N. J. Eq. 297; by Chancellor Green, in 1862, in Fairchild v. Hunt, 14 N. J. Eq. 367; by the supreme court, in 1864, in Moore v. Bonnell, 31 N. J. Law, 90; by Chancellor Zabriskie, in 1867, in Bentley v. Whittemore, 18 N. J. Eq. 366; and by the court of errors and appeals in 1868, in the same case, 19 N. J. Eq. 462; by the supreme court in 1879, in Hurd v. City of Elizabeth, 41 N. J. Law, 1; by the court of errors and appeals in 1884, in Flagg v. Baldwin, 38 N. J. Eq. 224; and also by the court of chancery and the court of errors and appeals, respectively, in the later cases of Van Winkle v. Armstrong, 41 N. J. Eq. 402, 5 Atl. Rep. 449; Kimball v. Lee, 43 N. J. | Eq. 277, 10 Atl. Rep. 285; Green v. Iron Works, 49 N. J. Eq. 54, 23 Atl. Rep. 498: and Stites v. Champion, 49 N. J. Eq. 446, 24 Atl. Rep. 403. While the courts so construed the statute, the legislature stamped its approval of their construction in the Revisions of 1846 and 1874, by retaining the exact language to which the courts had given so plainly defined a meaning. Indeed, this meaning of the statute has for 60 years, and until the dictum hereafter referred to, had the unquestioning approval of the bench, bar, and legislature of this state. It appears to me to be now too late to depart from it. If the court of errors and appeals has never directly adjudged that a preference in an assignment under the act operates to avoid the transfer in toto, as is suggested by the learned judge who wrote the opinion of the majority of that court in Muchmore v. Budd, it has by most unmistakable implication repeatedly so held in cases which I have above cited. The doubt expressed in Muchmore v. Budd as to the correctness of this ac. cepted interpretation of the statute expressly appears as mere dictum, which, although entitled to respect as the indi vidual opinion of the eminent judge who wrote the opinion of the majority of the court of errors and appeals in that case, does not require me to put upon the assignment act the new meaning suggested. I feel bound not only by precedent, but by my own judgment, to give the statute the meaning which has so long been accorded to it, and to hold that the deeds in question are void, because they expressly create preferences. But my conclusion need not rest upon this ground alone. The deeds are void also under the twelfth section of the act for the prevention of frauds and perjuries, (Revision p. 446.) which provides that every conveyance of lands, tenements, hereditaments, or goods and chattels or of any estate or interest therein, with intent to hinder, delay, or defraud creditors and others of their lawful actions, debts, damages, or demands, shall be deemed and taken, as against those whose actions, debts, etc., may be hindered or defeated thereby, to be utterly void, and of no effect. The Attention has been directed to the provision in the deeds which contemplates the retention of the property conveyed, or the proceeds of its sale, by the trustee, until certain contracts, upon which the debtors were liable, shall be performed, assigned, or comproinised by the trustee, to the obvious end that the debtors may be relieved from further responsibility through the continued use of their properry by the trustee in their behalf. conspicuous effect of this arrangement is to delay all creditors until the service to which the debtors have first put the property shall be ended; and this may be a perilous service, which will eventually defeat the creditors, for the trust contemplates the partial, and perhaps complete, exhaustion of the property in the payment of wages and in the purchase of materials in its execution. It nowhere ap.. pears that the contracts will be profitable, or that they will even return the expenditures upon them. A vigilant creditor is entitled to have the property of his debtor subjected by due course of law to the immediate payment of his debts, and any disposition by the debtor of that property which will defeat this right is, within the statute, a fraud upon him. There need not be moral fraud in the transaction; it is enough, in law, that the effect of the transfer will be to hinder, delay, or defeat the creditor, for the debtor is presumed to intend the necessary consequence of his acts. Owen v. Arvis, supra; Knight v. Packer, 12 N. J. Eq. 214; Servis v. Nelson, 14 N. J. Eq. 94; Bank v. Sprague, 21 N. J. Eq. 530; Walker v. Hill's Ex'rs, 22 N. J. Eq. 528; De Witt v. Van Sickle, 29 N. J. Eq. 209; Risley v. Parker, 50 N. J. Eq. 23 Atl. Rep. 424. The statute will not be avoided by the claim or excuse that the debtor made the transfer to prevent the sacrifice of his property, and thus protect both himself and his creditors. Livermore v. McNair, supra. If convincing evidence of a special intent to hinder and delay the complainant were required in this case, I need only refer to the fact that these deeds purport to have been made while the complainant was in pursuit of the property conveyed, and were, in fact, recorded on the very day upon which he entered his first judgment. The deeds are utterly void against the complainant, and will be set aside. STATUTES-REPEAL BY IMPLICATION-LIEN OF WORKMEN. 1. The statute of 1892, (P. L. 1892, p. 426,) giving workmen in the employ of corporations a lien for two months' wages in case of insolvency, supersedes and repeals the prior statutes on that subject. 2. When two statutes on the same subject are repugnant in any of their provisions, the later, without words of repeal, operates, to the extent of the repugnancy, as a repeal of the earlier. 3. And when two statutes are not in express terms repugnant, yet, if the later covers the whole subject-matter of the first, and contains new provisions, plainly showing that it was intended as a substitute for the earlier, it will operate as a repeal of the first. (Syllabus by the Court.) Bill by William T. Mersereau and others against the Mersereau Company to have defendant corporation declared an insolvent and for other relief. From a decision of the receiver appointed therein on a claim, Horace E. Cobb, a creditor, appeals. Affirmed. Frank C. Wilcox, for appellant. John A. Miller, for receiver. VAN FLEET, V. C. This is an appeal from the decision of the receiver of the Mersereau Company, disallowing, as a preferred debt, that part of the appellant's claim which accrued more than two months prior to the date when the proceeding was instituted to have the corpo This ration declared insolvent. The bill un. der which the receiver was appointed was filed October 31, 1892. At that time the appellant's wages were in arrear for a little over three months,-from about July 20, 1892. The receiver decided that the appellaut was entitled to two months' wages as a preferred debt, under the statute giv. ing workmen who have been in the employ of an insolvent corporation a lien for their wages; but that as to the residue of his claim he had no lien or right of pref. erence, but stood in the same position that other unsecured creditors occupied. The question presented for decision is whether the lien given by statute to workmen who have been in the employ of a corporation that has become insolvent for wages embraces all the wages that may have been earned, and which shall remain unpaid, or is limited to such wages as shall have been earned within two months next preceding the date when the proceeding is instituted to have the corporation declared insolvent. The lien which the sixtythird section of the corporation act (Revision, p. 188) gave was unlimited both as to time and amount. Any amount due as wages to a workman, no matter how long a period they covered, nor how great the amount, became a lien on the assets of the corporation on its insolvency. was so held in Delaware, L. & W. R. Co. v. Oxford Iron Co., 33 N. J. Eq. 192, 200, and in Wright v. Iron Co., 48 N. J. Eq. 29, 31, 21 Atl. Rep. 862. As this section originally stood, all that was required to entitle a workman to the lien given by it was that he should have been in the employ of the corporation when it became insolvent, and have wages due to him. But as the two cases just cited beld, it was only workmen in the employ of the corporation at the time of its insolvency that were entitled to the lien. This section was changed, in this respect, by a supplement passed in 1887, amending it so that the lien given by it should embrace not only wages due to workmen in the employ of a corporation at the time of its insolvency, but also wages due to workmen who had theretofore been in its employ, but were not at the time of its insolvency. P. L. 1887, p. 99. The lien created by these statutes was subordinate to liens created by the corporation and existing upon its property at the time of its insolvency. În the language of Chancellor McGill in Wright v. Iron Co., supra: "The priority secured to laborers is priority over thy debts which are payable out of the corporation's property after the liens existing upon it at the adjudication of insolvency shall have been discharged. It was not intended that a lien fairly and in good faith obtained by a vigilant and active creditor, before the adjudication of insolvency, should thereafter become second to the claims of laborers." Vice Chancellor Pitney had previously given expression to substantially the same view in Hinkle v. Trust Co., and the decree advised by him in that case was affirmed by the court of errors and appeals. 47 N. J. Eq. 333, 21 Atl. Rep. 861. In 1892, while the law stood in the condition above described, a new and independent statute was enact |