(93 N. J. Law, 93) (107 A.) HERCULES POWDER CO. v. MORRIS COUNTY COURT OF COMMON PLEAS et al. it is contended that, conceding the permanency of the loss, the functional impairment does not follow, and medical testimony is in voked to support the argument. The lower court found that as a result of (Supreme Court of New Jersey. June 24, 1919.) the injury, the defendant's morale, courage, MASTER AND SERVANT 385(11)—INJURIES TO SERVANT "PERMANENT INJURY"-"IM PAIRMENT." and marital efficiency were lessened. Whatever view medical experts may entertain upon that phase of the case, the indisputable Within Workmen's Compensation Act, § 11, fact remains that the injured defendant has defining a "permanent injury" as one where the suffered the loss of a portion of his anatomy, usefulness of a member is permanently impair-which nature implanted in the human organed, or where any physical function is permanently impaired, an injury to an employé which resulted in the loss of one of his testicles held a "permanent injury"; the criterion of disability partial in character and permanent in quality not being limited to loss of earning capacity. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Permanent Injury; Second Series, Impairment.] Certiorari by the Hercules Powder Company to the Morris County Court of Common Pleas and others to remove an award made under the Workmen's Compensation Act in favor of an injured servant. Award affirmed. Argued February term, 1919, before PARKER and MINTURN, JJ. ism, as a dual reservoir of complete efficiency equally with eyes, ears, and limbs, and that to deprive him of one of these natural attributes is to take from him a component portion of the perfect genus homo, and to that extent at least impair the physical attributes of his manhood. This impairment may not prove to be so conspicuous in the ability to produce wages, in the industrial world, but there are other spheres for the employment of human energy, talents, and the possession of physical attributes besides the industrial world into the activity of which the defendant is entitled to bring, possess, and enjoy all the physical attributes with which nature endowed him. In harmony with these considerations, it has been held that the sole criterion of a nent in quality, under the statute, is not lim King & Vogt, of Morristown, for prose- disability, partial in character and permacutor. Wayne Dumont, of Paterson, for defend- ited to the loss of earning power. De Zeng ants. Co. v. Pressey, 86 N. J. Law, 469, 92 Atl. 278, affirmed 96 Atl. 1102; Burbage v. Lee, 87 N. J. Law, 36, 93 Atl. 859. In the recent selective draft, for military service, no little attention was paid to physical imperfections, which might be deem MINTURN, J. No question as to the quantum of the award is made in this case, if the fundamental inquiry be affirmatively conceded, that the nature of the loss resulted in a permanent injury within the contempla-ed tion of the statute. P. L. 1913, p. 304 (C. S. Supp. p. 1644). As the result of an explosion, while employed in the defendant's service, and arising out of his employment, the injured defendant lost one of his testicles. The inquiry presented is whether such a loss Is equivalent to a permanent bodily impairment. The statute, section 11, concedes the awarded compensation (1) "where the usefulness of the member is permanently impaired," and (2) "where any physical function is permanently impaired." The language of a statute designed as was this must be of necessity in many respects generic in verbiage, and in this instance while previously having specified particular incidents of disability, partial and total in character, as a basis for compensation, it provides that, "in all other cases in this class" as above indicated, the award shall be made upon the basis of a permanent partial impairment. It must be manifest that, whatever its character as to the individual impairment, the loss in this instance is permanent. But to lessen human stamina and individual staying power. Nor can it be denied that in any computation or contest, based upon considerations of the physically perfect specimens of the race, the defendant would be at a disadvantage. Certain it is that in a state of human excellence man has been, in English literature, termed "the paragon of animals," and one cannot doubt that in our social environment, permeated by the atmosphere of the classics or the renaissance, the defendant would be debarred as a figure for the discriminating chisel of a Phideas, the heroic pen of a Horace, or the exacting brush of a Michael Angelo. Tested by the definition Webster gives to the word, the defendant has suffered an impairment which is equivalent "to diminish in quality, excellence or strength." Its Latin root indicates “a making worse, a lessening," while the Italian derivation "impari" indicates "a loss or diminution." Whether, therefore, we consider the physical status of the injured defendant as lessened by the loss of a physical attribute, which serves to constitute the perfect genus For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes homo, or as possessed of a dual entity which in natural and moral law he had a right to retain, as a reserve factor in the cosmic dispensation, the loss he sustained was a permanent impairment of his physical entity, under the provisions of our statute, and was properly compensated for as such by the award of the common pleas. The award will be affirmed, with costs. (90 N. J. Eq. 573) BRUCE v. BRUCE et al such enumeration, independent of each other or should be read as one. The Vice Chancellor found that they were independent, containing distinct gifts, and as the one marked on the margin as seventeenth undertook to dispose of the residue of the estate without naming a legatee it was void, and therefore the testator died intestate as to the residue. From the decree advised by the Vice Chancellor this appeal was taken. That the testator did not intend to die intestate as to any part of his estate appears beyond dispute, because he attempted to dis (Court of Errors and Appeals of New Jersey. pose of his entire estate by his will, which 1. WILLS June 20, 1919.) (Syllabus by the Court.) TION OF TESTATOR-INTESTACY. In construing a last will and testament, the true intention of the testator, to be gathered from the whole will, should be given effect, and it ought not to be so construed as to impute to the testator a purpose to die intestate, or partially so, if it can be avoided; the law preferring a construction that will prevent, rather than one which will permit, intestacy. 2. WILLS 449 INTESTACY. The enumeration of paragraphs made by a testator on the margin of the paper on which the wil is written, to which no reference is made by the testator in the body of his will as a means for the identification of something it contains, is not controlling in ascertaining the intention of the testator, and two such paragraphs may be read as one, to prevent intestacy, unless there is something in the will to the contrary, if the intention of the testator to dispose of his entire estate is otherwise clear. CONSTRUCTION AGAINST Appeal from Court of Chancery. Bill in chancery by John S. Bruce, executor of George A. Bruce, deceased, against George H. Bruce and others, for the construction of the will. From a decree of the Court of Chancery (105 Atl. 492), advising that the seventeenth paragraph of the will was void, and that testator died intestate as to the residue of his property therein mentioned, the executor appeals. Reversed, and will construed to entitle the executor to the residue. provided for the disposition of the residue thereof, and did so, unless the construction adopted by the Vice Chancellor is correct. The form of the will shows that every paragraph, prior to the one numbered “sixteenth," in which the testator devised and bequeathed any portion of his property, real or personal, except the latter part of paragraph 9, enumerated as 10, and paragraph 15, which provides for the division of testator's furniture among his children as they might select, he began with the words, "I give, devise and bequeath," and this form was applied to each legatee and his particular bequest. With this situation in mind we reach the paragraph numbered sixteenth, which begins with the same words, in which the testator gives to his son John S. Bruce a tract of land, describing it, "with all the buildings thereon," and following a space of about one-third of a line and beginning at the margin on the next line, "all of the rest, residue and remainder of my estate, * that I have not devised and bequeathed to other members of my family, to have and to hold the same to him, his heirs, executors, administrators and assigns." The testator wrote in the margin, and opposite the line beginning "All of the rest, residue and remainder of my estate," the word "seventeenth," from which it is argued that the residue was given to a legatee not * named. No reference to the enumeration is made in the will for any purpose whatever, and, as the Vice Chancellor says, seem to have been written in the margin after the will was prepared. [1] In construing a last will and testaWilliam G. Hille and J. Emil Walscheid, ment, the true intention of the testator, to be both of town of Union, for appellant. gathered from the whole will, should be Charles E. S. Simpson, of Jersey City, given effect, and it ought not to be so confor respondents. strued as to impute to the testator a purpose to die intestate, or partially so, if it BERGEN, J. We are asked to construe can be avoided; the law preferring a conthe holographic will of George A. Bruce, destruction that will prevent, rather than one ceased, and the only question presented for which will permit, intestacy. Carter V. determination is whether two paragraphs, Gray, 58 N. J. Eq. 411, 43 Atl. 711, and cases numbered on the margin of the will as there cited. sixteenth and seventeenth, are, because of [2] Following this rule of law we are of (107 A.) [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Child: Children; Issue.] 2. (Additional Syllabus by Editorial Staff.) STATUTES 225-CONSTRUCTION—Stat UTES IN PARI MATERIA. Where there are different statutes in pari materia, though enacted at different times, and not referring to each other, they are to be taken and construed together as one system, and as explanatory of each other. opinion that the enumeration of paragraphs | ing wills" (4 Comp. St. 1910, p. 5865), although made by a testator on the margin of the no provision is made therein for a child of paper on which the will is written, to which which his wife is enceinte at the time of his no reference is made by the testator in the death, and which is born thereafter. body of his will as a means for the identification of something it contains, is not controlling in ascertaining the intention of the testator, and two such paragraphs may be read as one, to prevent intestacy, unless there is something in the will to the contrary, if the intention of the testator to dispose of his entire estate is otherwise clear. If we disregard the enumeration and read the two paragraphs as one, then the word "him," who is "to have and to hold," refers to John S. Bruce, named at the beginning of the paragraph, and completely disposes of the entire estate. This view, we think, should be adopted, as it was the clear intention of the testator not to die intestate as to any part of his estate, and this construction carries out that intention. Punctuation, the enumeration of paragraphs, or a mistaken use of either in a last will and testament, will not be regarded in its construction if to do so avoids the testamentary intention manifested by the language of the will, and they will be disregarded where necessary to a proper ascertainment of the testator's intention. The present case is largely one of fact founded on the examination of the original draft, from which an inference may be drawn that the intention of testator was that the seventeenth paragraph was a part of the sixteenth; the gift being to John S. Bruce, first of a parcel of land, and second of the residue to him and his heirs. This construction, if not controlled by the enumeration, being consistent with the words of the will, and with the manifest intention of the testator to dispose of all of his property and not to die intestate as to any of his estate, should be adopted. The decree below is reversed, and the will construed to mean that John S. Bruce is entitled to the residue. (90 N. J. Eq. 549) In re BOOK'S WILL. Appeal from Prerogative Court. Proceeding by executors for probate of a certain paper writing as the last will of William Book, deceased, with caveat by Frederick Book. From an order of the Prerogative Court (105 Atl. 878) reversing an order of the orphans' court of Essex county, admitting the writing to probate, the executors appeal. Reversed. Harry Campton and George D. Mulligan, both of Newark, for appellants. Thomas S. Henry and Francis Child, both of Newark, for respondent. GUMMERE, C. J. The present appeal challenges the validity of an order of the Prerogative Court which reversed an order made by the orphans' court of Essex county, admitting to probate a certain paper writing as the last will and testament of William Book, deceased. The facts necessary for the determination of the matter before us are as follows: William Book and Annie, his wife, in April, 1908, adopted Frederick, the infant child of one William Feindt. The child's mother had previously died. The adoption was in accordance with the provisions of an act concerning minors, their adoption, custody, and maintenance (Revision of 1902, Comp. Stat. p. 2808) which was then in force. In 1911 Annie Book, the mother by adoption of the infant child, died; and about a year later William Book married one Emma Goldman, who is still living. On the 25th day of May, 1915, Book executed the paper writ (Court of Errors and Appeals of New Jersey. ing involved in the present litigation. He 1. WILLS CHILD June 20, 1919.) (Syllabus by the Court.) 191 PROVISION OF UNBORN REVOCATION died in January, 1917, leaving his wife enceinte of a child which was afterwards born. In due course the executors named in the will offered it for probate. By its terms, after providing for the payment of his debts -“CHILD"-"CHILDREN"-"Issue." and funeral expenses, the testator gave to A last will and testament, made when the his adopted son, Frederick, all of his jeweltestator has a living child adopted pursuant to ry, devised a certain house and lot to his the authority conferred by "an act concerning wife Emma, and then directed the residue of minors, etc." (2 Comp. St. 1910, p. 2808), is his estate real and personal to be divided not void under section 20 of "an act concern- into three equal parts, two of which he gave For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes to his wife, and the third of which he directed to be held in trust for his adopted son until he reached the age of 25, when he was to become the absolute owner thereof, providing he retained the name of Frederick Book. The adopted child, Frederick Book, by his next friend, filed a caveat against the probate, upon the sole ground that the will was void under section 20 of the act concerning wills, Comp. Stat. p. 5865. [1] The statute relied on declares: "That every last will and testament made when the testator had no issue living, wherein any issue he might have is not provided for or mentioned, if at the time of his death he leave a child, children or issue, or leave his wife enceinte of a child or children which shall be born, such will shall be void, and such testator be deemed to die intestate." The argument in support of the caveat was and is that the statutory provision recited makes a will void when the testator had no children born to him living at the time of its execution, nor any lineal descendants of such issue; and consequently that, as Frederick Book was not a child born to the testator, the statute applies. The attitude assumed by the caveator is certainly an anomalous one. In one breath he asserts that at the time of the execution of the will the testator had no child living, within the meaning of section 20 of the Wills Act, and in the next breath he justifies his filing of the caveat because of his status as a child of the testator, and his resulting right to participate in the distribution of the latter's personal estate, and to inherit his real estate if the will is void. Can he, under our statutes dealing with the subjectmatter of our inquiry, successfully maintain these two apparently conflicting positions? Section 20 of the Wills Act became a part of that statute in December, 1824. Elmer's Dig. pp. 600, 601. At that time a testator could have no lawful children except those born to him in wedlock. A child born to him of a woman who was not his wife was not recognized by the law as having any claim to share in the real or personal estate of the father. At that time, too, the laws of this state recognized no power existing in any of its citizens to adopt a child of other parents, and by the act of adoption vest in it the right to share in the distribution of the estate of the adopting party. In other words, the illegitimate child and the adopted child were neither of them recognized by our law as a lawful child of the actual, or the adopting, parent. quent revision or amendment), it provided that the effect of the decree of adoption should divest the natural parents of the child of all legal rights and obligations due from them to the child, or from the child to them, and that the adopting parent or parents should be invested with every legal right in respect to obedience and mainte nance on the part of the child as if it had been born to them in lawful wedlock, and that the child should be invested with every legal right, privilege, obligation, and relation in respect to education, maintenance, and the rights of inheritance to real estate, or to the distribution of personal estate on the death of such adopting parent or parents as if born to them in lawful wedlock; and that, if the adopting parent or parents should have other child or children, then and in that case the children by birth and by adoption should respectively inherit from and through each other as if all had been children of the same parents born in lawful wedlock. The statute contains certain limitations which, however, have no bearing upon the question now under consideration, and which it is therefore not necessary to recite. The effect of the legislation just adverted to is to clothe the adopted child with all the rights of a natural child so far as inheritance of real estate or the distribution of personal estate is concerned. It makes such child the lawful child of the adopting parent in these respects. It changes the statutory rules regulating the devolution of property, not by amending, or repealing pro tanto, the provisions of pertinent legislative enactments, but by enlarging the class for whose benefit they were originally passed (that is, the children born to the decedent, and their issue), by making the adopted child a lawful child of the decedent for the purpose of sharing in the distribution of his estate. [2] The act concerning wills, the statute of descents, and the statute of distribution composed the entire legislative system regulating the transmission of the estates of decedents, testate or intestate, prior to the passage of the act for the adoption of minor children. By the enactment of this latter statute that system, as we have just said, was, to some extent, changed. To determine the purpose of the Legislature in making that change, and the extent thereof, all of these statutes must be read together; for it is a universally recognized rule of statutory construction that where there are different statutes in pari materia, though made The act of 1902 providing for the adoption at different times, and not referring to each of minors was a revision of a statute orig- other, they shall be taken and construed inally enacted March 9, 1877, Pamph. Laws, together as one system, and as explanatory p. 123. It materially changed the then ex- of each other. Sedg. Stat. Construct. (2d Ed.) isting law regulating the devolution of the p. 211; Amer. & Eng. Ency. (2d Ed.) vol. estates of decedents. By its fourth section 26, p. 620, and cases cited; White v. Hunt, (107 A.) N. J. Law, 621, 9 Atl. 771; Gartner v. Cohen, and as on this appeal objection is made for 51 N. J. Law, 127, 16 Atl. 684. Applying the first time that the action does not lie in this rule, we are of opinion that the legisla- this state, it is held, that it does, and that the tive intent to be gathered from a reading judgment should be sustained, with the excepof all these statutes was to vest in adopted tion of the quantum of damages; and that the children all the rights and privileges which case should be remitted to the court below with leave to the plaintiff to apply for, and direction by the act concerning wills, the statute of to that court to grant, appropriate amendments descents, and the statute of distributions to the proceedings, so as to bring the cause had been conferred upon children born in within the provisions of the death act of Pennwedlock; that is to say, to place them in sylvania, which are given effect here by comity, the same position as if they had been natural and to then grant a new trial on the question born children of the decedent, so far as those of damages only, the award being excessive, bestatutes are concerned-to substitute the cause in the verdict was included a recovery lawful children of the decedent, no matter for not only the widow but also the next of what the source of their origin, in the place kin of deceased, while the statute of Pennsylof those born of his body. To give this leg-vania allows it only for the benefit of the widow. islative purpose its full significance, the meaning of the words "child," "children," and "issue," wherever appearing in the various statutes comprising the legislative system embodied therein, when used with relation to the testator or intestate, must be considered to have been enlarged so as to include adopted as well as natural born children within their scope. The Prerogative Court adopted the view advanced by the caveator as to the construction to be given to the provision of the Wills Act which we have discussed, rather than that put upon it by the orphans' court of Essex county. For the reasons we have indicated, we conclude that the Prerogative Court in so doing was in error, and that, consequently, the order under review must be reversed. (93 N. J. Law, 138) GIARDINI v. McADOO, Director General of (Additional Syllabus by Editorial Staff.) 2. CARRIERS 320(1)-INJURY TO PASSENPENNSYLVANIA LAW NEGLIGENCE -QUESTION for Jury. GERS In action in New Jersey by widow and administratrix against Director General of Railroads for damages for death of plaintiff's husband killed while a passenger on a train in Pennsylvania, held, on the evidence as to the Pennsylvania law, that question of negligence was properly submitted to the jury. 3. DEATH MON LAW. 11-ACTION FOR DAMAGES-COM At common law no action would lie for damages resulting from the death of a person, and such right, where it exists, is created only by statutory enactment. Appeal from Circuit Court, Camden County. Action by Adele Giardini, administratrix of William Giardini, deceased, against William G. McAdoo, Director General of Railroads. Judgment for plaintiff, and defend (Court of Errors and Appeals of New Jersey. ant appeals. Affirmed on the question of June 20, 1919.) (Syllabus by the Court.) 1. APPEAL AND ERROR 1178(6, 7)—DEATH 35, 99(5)-INJURY IN ANOTHER STATECOMITY-DAMAGES-REMAND. Plaintiff, the widow, obtained letters of administration. in this state upon the estate of her deceased husband, and brought suit in the Camden circuit court under the New Jersey death act against the Director General of Railroads for damages arising from the death of her husband while a passenger on a train of the Pennsylvania Railroad Company in the state of Pennsylvania, for the benefit of herself, as widow, and her children, who were next of kin of her deceased husband, and had a verdict, upon which judgment was entered. It was alleged in the complaint, and the testimony disclosed, that the accident resulting in the death of decedent occurred in the state of Pennsylvania, and therefore the death act of our state does not apply. But as the record discloses no objections made to parties or pleadings, and that issue was joined and the case was tried upon its merits, liability, and reversed on the question of damages and a new trial ordered. WALKER, Ch. This appeal is from a judgment upon a verdict for plaintiff at the Camden circuit, and defendant appeals to this court. No objections were made as to parties or pleadings. Issue was joined, and the case was tried upon its merits. The facts are: William Giardini, the husband of Adele Giardini, was killed by a train in the tunnel approach to the West Philadelphia, Pa., station of the Pennsylvania Railroad system, on the evening of February 1, 1918. He resided in Camden, N. J., and worked at Essington, Pa. As was his custom, he boarded a Philadelphia train leaving Essington that afternoon. The train was scheduled to make no stops until the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |