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442, 15 Atl. 406, 1 L. R. A. 342. If payment be secured in part by each method the total payments will not be permitted to exceed the debt.

GRIFFIN, V. C. The material facts in this case are as follows: On the 23d of November, 1897, one Darling conveyed to Spangenberg and wife, the immediate grantors of the defendant Kathryn Muller, certain premises on West Side avenue in Jersey City by deed containing the following restrictions:

"That the party of the second part, their heirs and assigns, shall not at any time previous to September 1, 1903, erect nor cause, nor prosaid premises any building other than a store or cure, permit or suffer to be erected upon the dwelling having a stone or brick foundation, and having at least two stories above such foundation, which building shall not be used for any other purpose than as a store or dwelling within the time limited; that no building shall be erected nearer than five feet to the street line of West Side avenue. No two story clothes poles shall be erected on the said property.

"It is expressly agreed that no wines, beers nor liquors of any kind shall be sold or manufactured upon the said premises."

Our statute has, to a certain extent, modified these rules. Since the statute made it the duty of Mrs. Wagner to give notice of her security, and unless she relinquished her security to apply it to her debt, and then to obtain a dividend from the estate upon the excess of her debt, she should not be permitted, through failure to comply with the statute, to secure a greater benefit than she could obtain by a compliance with the statute. So long as the statute stands, we think she must apply the security to her debt in the first instance, and then obtain a dividend from the estate only upon the excess of her debt. This remedy, we think, she was entitled to, even though she had given no notice to the commissioners of her security. In this case the security was more than sufficient to pay her debt, and the judgment of the court properly provides for the cancellation of her claim, as allowed by the commissioners upon the payment from the proceeds of the security of the amount founding restrictions: due her by the court. The administrator upon Mr. Wagner's estate has no just cause of complaint with the terms of the decree. The record does not show that the allowance by the commissioners of the plaintiff's claim was accepted as final by the trial court; hence we have no occasion to consider reason of appeal 4. Moreover, as we understand the finding, it tends to show that the court found the amount of the claim and did not accept the allowance of the commissioners as final.

Afterwards, by deed dated the 1st of December, 1898, Darling conveyed to the complainant lands on Duncan avenue, about 25 feet west of the rear line of the Spangenberg lot, which deed contained the follow

"That the party of the second part, his heirs or assigns, shall not at any time previous to September 1, 1903, erect, or cause or procure, permit or suffer to be erected upon the said premises, any building other than a store or dwelling having a stone or brick foundation, and having at least two stories above such foundation, which building shall not be used for any in the time above limited. That no dwelling other purpose than as a store or dwelling, withshall be erected nearer than ten (10) feet to the street line. It is, however, understood and agreed that stables and barns may be erected upon the rear half of the said premises, which buildings, shall, however, be used only as sta

There is no error. In this opinion the bles and barns, and shall be kept clean and free other Judges concur.

(83 N. J. Eq. 599)

ARMSTRONG v. GRIFFIN et al. (No. 38-47)
(Court of Chancery of New Jersey. Oct. 2, 1914.)
COVENANTS (§ 52*)-CONSTRUCTION-RESTRIC-
TIVE COVENANTS.

Where a deed prohibited the grantee, his heirs and assigns, at any time before 1903 from erecting, upon the land granted, buildings other than of a certain class, from building nearer than five feet to the street line, from erecting two-story clothes poles, and from selling or manufacturing liquors upon the premises, and other deeds by the same grantor to land in that locality contained similar covenants which were also limited to the year 1903, all of the restrictive covenants stand alike and are binding only until the year 1903, and at the end of such time liquor might be manufactured or sold on the premises.

[Ed. Note.-For other cases, see Covenants, Cent. Dig. § 51; Dec. Dig. § 52.*]

from nuisance.

"It is expressly agreed, that no wines, beers or liquors of any kind shall be sold or manufactured upon said premises.

"No two-story clothes poles shall be erected on the said premises."

This deed was offered in evidence at the

hearing on the order to show cause by consent.

Mrs. Muller leased the premises which she purchased from Spangenberg to Griffin, who had a license to sell liquor at another place transferred by the mayor and aldermen of Jersey City to permit the sale of liquor on said premises, and Griffin was proceeding to fit up the premises for the sale of liquors when the complainant filed his bill to restrain the defendants from leasing or using 771 West Side avenue in Jersey City, for the or permitting to be used, the said premises,

Bill by John Armstrong against Joseph sale or manufacture of wines, beers, or liq

William Griffin and another. On order to

show cause why a temporary injunction should not be continued. Order discharged. Joseph Anderson, of Jersey City, for complainant. Robert Carey, of Jersey City, for defendant Muller. Joseph F. Farmer, of Jersey City, for defendant Griffin.

uors, etc. Upon filing said bill an order to

show cause was granted, which included a manufacturing wines, beers, or liquors of any kind on the premises.

restraint against the defendants selling or

A comparison of both sets of restrictions shows that the third restriction in the deed

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

to the complainant, against the sale of liq- | intended that the second and fourth restricuors, is the fourth restriction in the deed to tions as to the building line and the clothes Spangenberg; and the third restriction in the poles should stand, when, at the same time, deed to Spangenberg is the fourth restriction the owner might cover the whole lot with any in the deed to the complainant. Both re- character of building without restriction. strictions, however, are substantially the If the second and fourth restrictions are so tied to the first that they also ceased to be

same.

my mind, a plain reading of the four restrictions indicates that all four were to expire on September 1, 1903. The complainant says that the object of the restrictions was to create a neighborhood plan for residence purposes. I am satisfied that this is true; but of what value would such a plan be after the 1st of September, 1903, if any character of lawful building which the owner might see fit to construct could be erected upon the land? The owner might erect factories and other buildings which might be perfectly lawful and yet tend largely to depreciate the value of the surrounding property which had been developed on the neighborhood plan and destroy it for residential purposes.

The defendants contend that all the re-operative after September 1, 1903, then, to strictions contained in said deed expired on September 1, 1903; whereas, the complainant contends that there are practically four separate and independent restrictions, all disjoined, the time limitation applying only to the first, namely, as to the style of building to be erected on the premises, which restriction became inoperative on and after September 1, 1913; the second, which prohibits the erection of a building within a certain distance of the street line; the third in the complainant's deed and the fourth in the Spangenberg deed, directed against the sale and manufacture of liquors; and the fourth in the complainant's deed and the third in the Spangenberg deed, which regulates the height of the clothes poles which | might be erected. And he must so contend, because if the time limitation is annexed to any one of the subsequent restrictions it must necessarily apply to all, for the reason that there is nothing in the instrument which indicates that the framer of the restrictions intended that there should be any distinction made between the second, third, and fourth restrictions as to the period of their existence. It is therefore necessary to examine into the character of the restrictions to determine if the second, third, or fourth restrictions, or either of them, are so related to the first that the restrictions would lack utility after the first became inoperative.

If the framer of the restrictions had intended that any of them should continue after the 1st day of September, 1903, he should iter have so provided by clear and unambiguous language. This he has not done. On the other hand, taking the scope and purpose of the restrictions, it seems to be clear that they were all to endure until September 1, 1903. If this interpretation is doubtful, then the restrictions are ambiguous. In either event, the result reached must be the same, namely, that the complainant is not entitled to an injunction. Fortesque v. Carroll, 76 N. J. Eq. 583, 586, 75 Atl. 923, Ann. Cas. 1912A, 79 (Court of Errors, 1909). I will advise an order discharging the order to show cause.

In dealing with the "third and fourth restrictions" for the sake of brevity I will refer to the fourth restriction in the Spangenberg deed as being the "third restriction," and to the third restriction in the Spangen

berg deed as being the "fourth restriction," thus making the restrictions conform in order of sequence in the complainant's deed. The first, second, and fourth restrictions have to do with the building; the first is as to the style of the building to be erected prior to September 1, 1903; the second is referable to the location where the building mentioned in the first restriction may be erected; the fourth relates to the height of the clothes poles to be used in connection with the building mentioned. This must, of necessity, be so, because after the 1st of September, 1903, the owner of the premises was not limited to the erection of a store or dwelling; he might erect a factory building extending the full width of the lot; he might erect telephone or telegraph poles to any height on the lot. It seems unreasonable to say that after the first restriction had expired the draughtsman

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1. COURTS (§ 198*)-NEW JERSEY ORPHANS' COURT-JURISDICTION.

The orphans' court being a creature of statute, invested with special powers and jurisdicestablished by the Constitution, it can exercise tion in derogation of the powers of the courts no powers beyond those authorized by statute.

[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 469, 471-475, 478; Dec. Dig. § 198.*] 2. COURTS_(§ 201*)-NEW JERSEY-ORPHANS'

COURT-JURISDICTION.

Where petitioner, the executrix of an estate which was indebted to defendant's testator, recovered in her individual capacity a judgment against the estate of defendant's testator, had to compel defendant to sell her testator's the orphans' court, in which proceedings were land to satisfy execution on the judgment, is without jurisdiction to determine a controversy between petitioner and defendant as to the liability of the estate of which petitioner was executrix, it not appearing that such estate was insolvent; for the orphans' court has no

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

jurisdiction over disputed claims save in case of, petitioner had requested the executrix of insolvent estates.

[Ed. Note. For other cases, see Courts, Cent. Dig. §§ 86, 87; Dec. Dig. § 201.*]

3. EXECUTORS AND ADMINISTRATORS ($ 454*) EXECUTION AGAINST ESTATE PROPERTY SUBJECT TO LEVY.

-

Adam Fritz to take proceedings to obtain a sale of the whole or a part thereof for the payment of said judgment, in accordance with the orphans' court act, and that she has refused to comply with such request for the Where an execution in favor of the peti-space of at least one month after being so tioner against the estate of defendant's testator required, and the orphans' court was asked was returned unsatisfied, the petitioner may compel a sale of his lands, and cannot be requir- to make an order for the sale of said lands, ed to seek satisfaction out of the proceeds of a or a part thereof, for the payment of said note held by deceased against an estate of which judgment, under section 97 of the orphans' petitioner was executrix; for choses in action court act, Laws 1898, p. 715. are subject to execution only when made so by statute, and there is no statutory authority to levy upon bills and notes.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 1909-1928; Dec. Dig. § 454.*]

4. EXECUTION (§ 88*)-SALES-PROPERTY.

A judgment creditor can sell personalty or realty at his option on execution.

[Ed. Note. For other cases, see Execution, Cent. Dig. § 183; Dec. Dig. § 88.*]

5. EXECUTORS AND ADMINISTRATORS (§ 341*)PAYMENT OF CLAIMS-PROPERTY SUBJECTSALE OF REAL ESTATE-DEFENSES.

In a proceeding to compel the executrix of a judgment debtor to sell land to satisfy an execution, an order of the orphans' court directing a sale of the realty is not erroneous, where there was not sufficient personalty to satisfy the claim, because the deceased was entitled to a distributive share in an estate of which the judgment creditor was executrix; for,, while the personalty of a decedent is primarily liable for his debts, a creditor is entitled to compel sale of lands where there is not sufficient personalty on hand to satisfy his claim.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 1434-1437; Dec. Dig. § 341.*]

Appeal from Orphans' Court, Passaic County.

In the matter of the estate of Adam Fritz, deceased. Petition by Minnie E. Dodd, for the use of Barbara Thomas, to require Catherine Fritz, the executrix, to sell the real property to satisfy an execution. From an order of the orphans' court directing a sale of the land, the executrix appeals. Order affirmed.

Michael Dunn, of Paterson, for appellant. Wayne Dumont, of Paterson, for respondent.

LEWIS, V. O. The appellant, Catherine Fritz, widow and devisee of Adam Fritz, deceased, and sole executrix under his last will, appeals from an order of the orphans' court of Passaic county, made March 14, 1912, requiring the executrix to sell certain real estate to pay the judgment of the petitioners therein. The petition sets forth that on June 23, 1910, Minnie E. Dodd, to and for the use of Barbara Thomas, recovered a judgment against the executrix of Adam Fritz, in the Passaic county circuit court, for the sum of $753.92; that execution was issued thereon and returned wholly unsatisfied for want of personal estate to be levied on and sold; that Adam Fritz died seised of certain real estate therein described; that

The answer of Catherine Fritz, executrix as aforesaid, practically confesses the facts set forth in said petition, and seeks to avoid the relief which would necessarily follow thereon, upon the following grounds:

titioners, and owner of the said judgment. That said Barbara Thomas, one of the pefor all practical purposes, is the surviving executrix of the last will and testament of Peter Fritz, deceased, of whom the said Adam Fritz was a son, said Adam Fritz in his lifetime being also an executor of the said last will and testament of Peter Fritz, deceased; that the estate of Peter Fritz, deceased, is indebted to the estate of Adam Fritz, and that if this indebtedness were paid to the executrix of Adam Fritz she would then have in hand sufficient personal property with which to pay the judgment of Barbara Thomas; and upon these facts the appellant, Catherine Fritz, not only resists the granting of the relief prayed for in the petition, but, by way of cross-petition, she

attacks the answer and prays for affirmative relief, by asking the court to make an order directing the said Barbara Thomas to file an account of her administration of the estate of Peter Fritz, and to sell the real estate of the said Peter Fritz, for the purpose of paying to the executrix of Adam Fritz, the appellant, the money so due on said estate. To this answer and cross-petition the respondents replied that, by virtue of a certain writing under the hand and seal of said Barbara Thomas and said Adam Fritz, her brother and coexecutor, made during his lifetime, said money so due from the estate of Peter Fritz to the estate of Adam Fritz is not to be payable until the death of an invalid sister of Barbara Fritz. The jurisdiction of the orphans' court in this case arises from the obtaining of the judgment against the executrix, Catherine Fritz.

(2) The issuing of execution which remains unsatisfied "for want of personal estate to be levied on and sold."

(3) That there is real estate.

(4) The neglect of the executrix, after notice to sell said lands.

The testimony taken before me shows that the estate of Peter Fritz, deceased, of which Barbara Thomas is the surviving executrix, is indebted to the estate of Adam Fritz, deceased, in the sum of $1,859.99 on a promissory

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

I am therefore well satisfied that there was no error in the decree of the court below, so far as the promissory note was concerned.

note, dated October 16, 1908, payable 30 days, and sale, except in certain specified cases, after date, which was given by the executors amongst which promissory notes are not infor moneys loaned and advanced by Adam cluded. Fritz to the estate of Peter Fritz, and which was used to buy out the dower right of the widow of Peter Fritz, and also to pay taxes and insurance and to make necessary repairs to maintain and keep the buildings on the property of Peter Fritz in a tenantable condition, to prevent the estate from waste, and the money so advanced is evidenced by this note; that under the will of Peter Fritz the whole estate is devised to the executors therein named, to be by them distributed as therein mentioned; that it also gave the executors full power to sell and convey the real estate; that the said Adam Fritz was also a devisee and legatee under said will; that the effect of the said will of Peter Fritz, in devising the property to the executors for distribution, was practically to convert his property so that it might be treated as if it were personal estate; that the said Barbara Thomas was requested, as surviving executrix of the said Peter Fritz, deceased, to file her account and proceed to settle the estate and raise the necessary moneys to pay this note of $1,859.99 due to the estate of Adam Fritz, and to pay to her the amount of the interest of Adam Fritz in the estate of Peter Fritz, as would be shown in the final settlement, thereby putting into the hands of Catherine Fritz, executrix of Adam Fritz, the money due to the estate of Adam Fritz from the estate of Peter Fritz, to enable her to liquidate the said judgment.

[1-3] It is the contention of the appellant

[4, 5] In regard to the distributive share of the estate of Peter Fritz to which Adam Fritz would be entitled I fail to see any reason for delaying the collection of the judgment. A judgment creditor can sell personalty or realty at his option on execution. He is the one the law is particularly interested in seeing made whole. However, when the debtor dies and his estate is sued, his personalty becomes liable first of all, and his realty only secondarily. The law still primarily looks after the judgment creditor. The protection of the heir is only a secondary matter. The heir may give bonds to prevent the sale of the real estate if he wishes to do so, and thus prevent a forced sale of the realty. Therefore I must assume that, as the orphans' court act clearly states, if there is not sufficient personalty to pay the judgment, the realty (or so much thereof as may be necessary) shall be sold, that must be the order, as the orphans' court is only a statutory court.

The decree shall be affirmed.

(86 N. J. L. 141) BARNES et al. v. ESSEX COUNTY PARK COMMISSION et al. (No. 79.)

Sept. 25, 1914.)

1. HIGHWAYS_(§ 18*)-PUBLIC HIGHWAYSSTATUTORY PROVISIONS.

that both parties being officials of the court, (Court of Errors and Appeals of New Jersey. and representing different estates, and both being subject to the orders of the court, and it being in the interest of both estates that litigation should be avoided and expenses thereby saved, that it was the duty and the right of the orphans' court to grant an order against Barbara Thomas, as executrix of Peter Fritz, to proceed and settle the same, and to sell the real estate and thereby avoid further litigation.

It will be noted that the judgment obtained by Barbara Thomas against the estate of her coexecutor was obtained by her in her individual capacity.

"Our statutes confer no authority on the orphans' court to try disputed claims, except in the case of insolvent estates." Middleton v. Middleton, 35 N. J. Eq. 115, and cases there cited.

It (the orphans' court) "being a court created by statute and invested with special powers and jurisdiction in derogation of the powers of the courts established by the Constitution, it must *** be restrained in the exercise of those powers and jurisdiction by the words of the statute." Ludlow v. Ludlow, 4 N. J. Law, 189; Tenbrook v. McColm, 10 N. J. Law, 333; Bray v. Neill, 21 N. J. Eq. 343.

"Choses in action are subject to execution only when made so by statute." 17 Cyc. 971.

Our statute concerning execution does not make choses in action the subject of levy

Under Act Feb. 16, 1870 (P. L. p. 181), authorizing the Essex public road board to lay out, construct, improve, and maintain certain avenues in the county of Essex, including Park avenue, and providing that such avenues when constructed shall be deemed and taken to be public roads or highways, Park avenue is a public highway.

[Ed. Note.-For other cases, see Highways, Cent. Dig. § 25; Dec. Dig. § 18.*]

2. HIGHWAYS (§ 168*)-PARKWAYS-REGULATION OF USE.

Under Act April 22, 1907 (P. L. p. 180) § 1, providing relative to the county park commissions authorized thereby to be appointed in certain counties that such board shall have full power and authority to pass rules and regulations for the protection, regulation, and control of parks and parkways, and Act March 5, 1895 (P. L. p. 175) § 6, providing that the board shall have power, not only to lay out and open roadways, parkways, etc., but to establish the grade thereof, etc., and regulate the use thereof, while a park commission may possibly have power to prohibit the use of parkways by business vehicles of such heavy draft as would tend to injure or destroy the road, it cannot prohibit the use of a parkway by ordinary grocery delivery wagons; the protection of the highway not requiring their exclusion therefrom.

[Ed. Note.-For other cases, see Highways, Cent. Dig. §§ 456, 457; Dec. Dig. § 168.*]

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

3. HIGHWAYS (§ 165*)-PARKWAYS-REGULA-, powered to pass ordinances (P. L. 1907, p. TION OF USE. 180, 1) provides:

The Legislature may impair the public easement in a public highway by prohibiting business traffic thereon, and may delegate such power.

[Ed. Note.-For other cases, see Highways, Dec. Dig. § 165.*]

Appeal from Supreme Court.

Certiorari by Robert Barnes and others against the Essex County Park Commission and others, to review the validity of an ordinance of such commission. From a judgment setting aside the ordinance (88 Atl. 837), defendants appeal. Affirmed.

Alonzo Church, of Newark, for appellants. Borden D. Whiting, of Newark, for appellees.

WALKER, C. The Essex County Park Commission on January 7, 1913, passed an ordinance excluding from the parkway known as Park avenue in Essex county "omnibuses, express wagons, carts or other vehicles carrying or ordinarily used to carry merchandise, goods, tools, or rubbish, however propelled, except as it may be necessary to carry supplies to or from residences on either side of the avenue, or in case of buildings being erected fronting on said avenue, when it shall be lawful to carry building materials thereto.

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The prosecutors, respondents, engaged in the grocery business and having a store on Park avenue (the one in question) with customers located, some of them on the avenue, and more elsewhere, to whom they delivered goods by means of ordinary grocery delivery wagons, of which they run six in number, constantly using the avenue for delivery purposes, obtained a certiorari to review the validity of the ordinance. The Supreme Court, after hearing, set the ordinance aside, and the respondents appealed.

"The said board shall have full power and authority and is hereby empowered to pass and enact, alter, amend and repeal rules and regulations for the protection, regulation, and control of such parks and parkways."

And in section 6 (P. L. 1895, p. 175): "That the said board shall have power and authority not only to lay out and open roadways, parkways and boulevards, connecting shall have authority to establish the grade of parks and open spaces as herein provided, but such highways, and change and alter the same, to grade, curb, flag, pave and otherwise improve the said parkways, roadways and boulevards, and to regulate the use thereof."

The Supreme Court holds that "the power to regulate and control is not necessarily the power to prohibit." To this, as a general proposition, we agree, but are unwilling to concede that the statute, under which the ordinance in question was passed, is not broad enough to permit of prohibiting the use of the avenue by heavy business vehicular traffic.

[3] In the opinion of the Supreme Court it is stated that the Legislature may impair the public easement in a public highway by prohibiting business traffic thereon, and that such power may be delegated. And this is plainly the law.

Now, the right of the Legislature to impair the public easement in a public highway by prohibiting vehicular business traffic thereon is conceded, and therefore the question whether the park commission may prohibit vehicular traffic upon this particular highway depends upon whether or not the terms of the statute, under which it acts, are broad enough to include that power. If under the legislative authorization to enact rules for protecting, regulating and controlling the highway, business vehicles may be prohibited the use of the parkway, then it has such pow[1] We agree with the Supreme Court that er, otherwise not. Of course the commisPark avenue, laid out under authority of the sion has not the power to prohibit all traffic; act of the Legislature (P. L. 1870, p. 181), but may it not for the protection of highis a public highway. This is so by the ex- ways make a regulation that business vepress language of that statute, which enacts hicles of such heavy draft as would tend to that the avenues, when constructed by the injure and destroy the road shall not use the board, "shall be deemed and taken to be pub-highway, save, perhaps, under exceptional lic roads or highways." It is true too that circumstances? We think this question is at Park avenue has been used as a public road least debatable, and that therefore it should and highway without restriction until re- not be foreclosed. stricted use was attempted to be imposed upon it by the ordinance under consideration.

[2] The Supreme Court in its opinion says that if the public enjoyment of the avenue is now to be impaired, it can only be because the Legislature has passed some act under which power to that end has been clearly granted and expressed, and that this has not been done.

Because forbidding the use of Park avenue by grocery delivery wagons, such as are owned and used by the prosecutors, is not necessary for that highway's protection, the ordinance under consideration prohibiting such use is unreasonable. Protection of the highway in question does not require their exclusion therefrom.

The judgment of the Supreme Court setting the ordinance aside will therefore be

The act under which the commission is em- affirmed.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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