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and irrelevant, which objection being overrul-, what sense the defendant used the language, ed, the witness answered: “They both claim it was not improper for the trial judge to to be.” The witness was then asked: "(2) say to the jury that they have the right to Are they also working for the doing away ask themselves whether such language as with the relationship of the wage-earner and that has a tendency to advocate, encourage, master?” This question was objected to etc., persons to kill or injure, etc.; for later upon the additional ground that it was in-on in the charge the court said: definite, and, the objection being overruled, "If you find that the defendant did use those the witness replied: “I would prefer that words, and that the words were such as would you would specify what you mean by master the killing or injuring of any class or body of

advocate, encourage, justify, praise, or incite and wage-earner.” It appears that the ques- persons or of any individual, then it is your 'tion was not answered, and the cross-exam- duty to convict the defendant; if not, then he ination of the witness proceeded without fur- should be acquitted.” ther objection.

If the trial judge erred in this respect, it It is argued that it was error in compelling was advantageous to the defendant. The the witness to answer regarding her views on trial judge evidently overlooked the fact that economic questions. We think, however, that the defendant was charged in the indictment the mental attitude of a witness who in this that he did advocate, encourage, and incase seems to have been engaged on the same cite," etc., and not also that he did justify mission with the defendant was subject to and praise. In the sense in which the words be probed as to her interest or bias. To “advocate," "encourage," and "incite" are what extent such an examination may pro- used in the statute they are cognate terms, ceed rests within the sound discretion of the and therefore may be used in a single count trial judge.

of an indictment without rendering such We do not find that this discretion was indictment subject to the charge of being abused in this instance. A conclusive an- duplex. swer, however, to the appellant's argument

The words "justify" and "praise" were inis that, if the questions were immaterial and tended to meet other conditions and circumirrelevant, as the appellant contends, they stances. The pleader very properly in this would form no basis to disturb the judgment, case did not use these terms in the indictunless it further appeared that appeared that answers

ment. It was not necessary, in order to find thereto prejudiced the defendant in main- | the defendant guilty, that the jury should taining his defense on their merits. But have found that he did advocate, encourage, this does not appear.

and incite, etc., for if the defendant did any [11] The only other objection presented by one of them he could be convicted under the the plaintiff in error against the validity of indictment. Thus it is plain that the trial the judgment is that the trial judge com- judge put a heavier burden on the state mitted harmful error in instructing the jury, than the law required, which circumstance as follows:

inured to the defendant's benefit, and of "In order to ascertain that you have the right which he cannot be heard to complain. to ask yourselves what did the defendant mean For the reasons stated, judgment will be when he said, 'I make a motion that we go to affirmed. the silk mills, parade through the streets and club them out of the mills, drag them out of the

(83 N. J. Eq. 428) mills.' What did he mean by that? You also have the right to ask yourselves, Does such

MOORE v. DOWNEY et al. language as that have a tendency to advocate, (Court of Chancery of New Jersey. June 25, encourage, justify, praise, or incite persons to

1914.) kill or injure any class or body of persons or an 1. WILLS ($ 619*)—“ANNUITY”–NATURE AND individual?"

CREATION The argument addressed to us on this A bequest to trustees to pay the testator's head, by the plaintiff in error, is that by wife "annually in quarter payments during her

natural life an amount equal to one-half the this instruction the jury were made to un-net income” from his estate, which consisted of derstand that if the language charged had a both real and personal property, was not an tendency to do that which is prohibited by "annuity," which is the bequest of a sum cerstatute they might find the defendant guilty. the interest of a fixed and certain sum of money.

tain which does not even include the gift of It must not be overlooked that immediate.

[Ed. Note. For other cases, see Wills, Cent. ly preceding this instruction the court was Dig. $ 1437; Dec. Dig. $ 619.* discussing whether the language used by the For other definitions, see Words and Phrases, defendant came within the contemplation of vol. 1, pp. 404, 405; vol. 8, p. 7575.] the statute, and said:

2. ANNUITIES ($ 4*)-APPORTIONMENT. "That is, does the language alleged to have

Annuities are not generally apportionable. been used by him advocate, encourage, justify,

Ed. Note.-For other cases, see Annuities, praise, or incite the unlawful killing or injuring Cent. Dig. $$ 13, 14; Dec. Dig. $ 4.*] of any class or body of persons or of any in- 3. WILLS (8733*)—BEQUEST—INCOME. dividual."

A bequest in trust to pay the testator's We think the view taken by the trial judge wife quarterly during her natural life an was more favorable to the defendant than cruing from his estate, which included both real

amount equal to one-half the net income ache was entitled to. In order to ascertain in and personal property, was not a bequest of *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

income payable at fixed times, and the wife's "First. I direct that my said executors or representatives were entitled to such an appor- trustees pay to my beloved wife Loraine H. tionment of the income as would have given her Barr annually in quarterly payments, during so much as accrued from day to day during her her natural life, an amount equal to one-half the life, including interest accruing on mortgages net income accruing from my said estate." and dividends declared during her life, although not payable until after her death.

The testator died February 26, 1908, , and [Ed. Note.-For other cases, see Wills, Cent. during the lifetime of the widow payments to Dig. $$ 1819–1846 ; Dec. Dig. § 733.*]

her under this clause were made quarterly on 4. WILLS (8 687*)-TESTAMENTARY TRUST-IN- the 28th days of February, May, August, TEREST OF BENEFICIARIES-INCOME.

and November of each year. The last payTestator, after specific legacies, devised the ment to her was made on February 28, entire residue to trustees for investment and to

If pay out of the balance one-half of the net in- 1913, and she died on May 21, 1913. come to his wife for life, and after her death the income is apportionable, then the sum certain amounts to each of two legatees for of $2,760.76 is the proportion of the quarlife with cross-survivorship, and a certain amount to another legatee for life, such legatees terly payment to which the widow at the being the wife's kin, and to pay out of the prin- time of her death would have been entitled cipal certain amounts to the issue of two of the out of the entire income up to the quarter legatees in contingencies which had not occur- ending on the 28th of May, 1913. Her execred, and out of the remaining one-half of his income not disposed of directed two annual pay- utors claim that they are entitled to such ments of $2,500 each to a nephew and niece apportionment of this entire income. The for life, and a payment out of the principal to ground upon which counsel for these executhe issue of such nephew and niece, respective-tors base this claim is that this bequest to the ly, of $50,000, with cross-remainders on survivorship, upon contingencies which had not oc-widow is a gift of an annuity, and, while adcurred, and gave all the remaining surplus in- mitting that annuities are not generally apcome equally to two sisters during their natural portionable, claim that this annuity was in lives, and three-ninths of all the residue to each of them, their heirs and assigns, and one-ninth lieu of dower and for the maintenance and each to a nephew and two nieces. The pay- support of the widow, and therefore, under ments to legatees other than his sisters amount the decisions of our courts, is excepted from ed to less than the annual income of the estate, the general rule and is apportionable. This leaving a surplus. Held, that during their joint lives the sisters were equally entitled to the sur- bequest of income is not, however, in my plus income of the entire estate, after deducting judgment, an annuity. An "annuity” is the the special legacies, and that until the happen- bequest of a sum certain, and even the gift out of one-half of the principal of the legacies of the interest of a fixed and certain sum of to the issue of the nephew and niece or either money is not an annuity. 3 Pom. Eq. Juris. $ of them, the principal was to be held as an en- 1134 (3d Ed.), citing, inter alia, Whitson v. tire fund.

Whitson, 53 N. Y. 479, 481 (1873); 2 Redf. [Ed. Note.-For other cases, see Wills, Cent.

Wills, 453. Much less can the gift of the Dig. $$ 1638–1643; Dec. Dig. $ 687.*]

income or of a specified portion of the net Bill by Edward J. Moore, surviving trustee, income of the general residue of the estate, etc., of Thomas C. Barr, deceased, against J. including, as here, real as well as personal Nethermark Downey and others for a con- estate, be considered an annuity or the gift struction of the will of deceased. Will con- of a sum certain. strued.

[3] Treating this devise and bequest to the Frank Bergen, of Newark, for complain- wife not as the income payable at fixed times, ant. Chauncey G. Parker, of Newark, for her executors are, however, under the general defendants Dorey & Birch. H. M. Barrett, rule well settled, entitled to such an apportionof Newark, and William R. Brinton, of Lan- ment of the income as will give to the widow caster, Pa. (Barrett & Barrett, of Newark, of the benefit of so much of the income as accounsel), for defendants Downey & Lees. crued from day to day during her life. Norman W. Harker, of Philadelphia, Pa., for Brombacher v. Berking, 56 N. J. Eq. (11 defendants executors of Mrs. Barr.

Dick.) 251, 255, 39 Atl. 134 (Reed, V. Ch.,

1897). This would include interest accruing EMERY, V. C. [1, 2] This bill is filed by on mortgages and also dividends declared Edward J. Moore, the surviving trustee un- during her lifetime, although not payable under the will of Thomas C. Barr, for a con- til after her death. The case does not show struction of his will on three contested what the apportionment would be on this points. The first is a question arising on the basis and this may be the subject of further claim of the executors of the widow of the inquiry, if necessary. testator for the payment to them of certain [4] The second and third questions are conincome of the estate, amounting to $2,760.76, nected and involve the general question now in the hands of the trustee, and being whether the entire principal trust estate or a portion of the income of the residue of fund in the hands of the surviving trustee the estate which was given and devised to must be held intact for the purpose of paying the executors and trustees by the eleventh the income of the entire estate (after certain clause of his will, upon trusts therein specifi- deductions) to the two sisters of the testator ed. The first trust as to payments) was as during their joint lives, or whether, after follows:

the death of the widow, who was entitled to

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

one-half of the net income during her life, plates apparently a division into two parts of one-half of the principal of the estate be- the net income of the whole estate invested comes immediately divisible among the per- as one trust fund. A provision for the paysons entitled as residuary legatees to the es- ment of one-half of the net income of an entate, and whether therefore the sisters of tire principal fund is manifestly a different testator are entitled to require only one-half thing from a direction to pay the net income of the principal to be retained for the pay- of one-half of the principal fund. And under ment of income to them on this half for their this direction, I think the trustees have no lives. For the sisters it is contended that authority to make such division of the printhe entire principal must be held at least dur cipal fund into two separate parts or funds. ing their joint lives for the payment to them This direction completes the eleventh item or equally of all the income thereon, including paragraph, and the next or twelfth paragraph that previously enjoyed by the wife, after provides for the payment after the death of deducting specific annual payments of income his wife, to each of two legatees, Mrs. Fretz to other relatives under the will. These pay- and Miss Nippes, of $2,500 during their rements to other legatees, together amounting spective lives, with cross-survivorship to each to $10,500 annually, are much less than the of these legatees, and to Frank P. Nippes, income of the estate, which exceeds $800,000, Jr., of $500 during his life, without survivorand which as now invested yields an annu- ship provision. These three legatees are, it al income of about $48,000.

is said, of testator's wife's kin; but, although The sisters are also the residuary legatees these payments are not to be made until to the extent of one-third each of the entire after his wife's death, there is no direction fund not otherwise disposed of, but they that they are to come out of the half of the claim that no portion of the principal is yet net income, which would have been paid to divisible. The residuary legatees of the trust the wife, had she been living, nor is there fund, other than the sisters, being a nephew any direction which would make them payand nieces of the testator and a niece of his able otherwise than out of the income generwife, and who are each entitled to one-ninth ally after his wife's death. Following this is of the residue, claim that the sisters are en- the thirteenth paragraph, which provides for titled only to the income of one-half of the the payment out of the principal of the estate principal fund (less the special deductions) of two sums of $50,000 each to the issue of and that after the death of the wife one-half these two legatees, Mrs. Fretz and Miss of the principal became immediately divisible Nippes, in certain contingencies. These conamong the residuary legatees. These two tingencies have not yet occurred and at presquestions, the right of the sisters to the in- ent only have a bearing, as being required to come of the entire fund, and the right to dis- be provided for in case any distribution of tribute any portion of the principal, are thus principal be now directed. The important inseparably connected, and decision upon one features of the thirteenth paragraph, on the point affects the disposition of the other. present questions, are: (1) That this payment The difficulty in reference to the construction of principal is not specially directed to be of the will on these questions—for there is a made out of a half of the principal, nor is difficulty-arises from the fact that the will there any provision that would indicate it is is not only inartificially drawn; but, in ref- not payable out of the principal generally ; erence to the particular point now in ques- and (2) that these payments of principal to tion, it is drawn confusedly, as will appear the issue of these two life tenants are not, by from a recitation of its provisions.

this clause or any other, made expressly deThe will after a direction for payment of pendent on Mrs. Barr's death. They only bedebts and funeral expenses, and for the pay- come so dependent by reason of the fact that ment of specific legacies (all of which amount- such payment out of the principal (considered ed to about $50,000), gave and devised the as a single trust fund) would pro tanto deentire residue of his estate to his executors prive Mrs. Barr during her life of one-half and trustees, in trust for the uses thereafter of the net income of the whole estate, previnamed. This residuary clause vested in the ously given upon this trust, and might thereexecutors the legal estate in the entire resi- fore by implication be payable only after her due, leaving, however, the equitable or benefi- death. After these directions, which, it will cial estate therein to be further declared. be seen, fall far short of one-half of the net Directing that the trustees invest and keep income and do not dispose at all of the balthe estate invested and collect the rents and ance of the one-half of the net income payprofits therefrom, pay all taxes or other able to the wife during her life, the testator, charges, the testator then directed that they without any further special express reference pay over the balance after such payment. to this balance of the one-half of the net inThis "balance" must be taken on the face of come which the wife had received, seems to it to relate to and include only the payment assume by the next paragraph of his will that of net income of the estate, considered as a he had in fact already made such direction whole. The first payment to be made is to as to this balance of income. his wife annually in quarterly payments dur The fourteenth paragraph reads: ing her life “of an amount equal to one-half "I further direct that out of the remaining of the net income." This direction contem-one-half of the income of my estate not yet

disposed of” (the italics are mine) “there be time arrives for the division of the principal, paid two annual payments of $2,500 each” to remains to be specially considered. a nephew and niece during their respective

Up to this point in his will (the fifteenth lives.

paragraph), the testator had made provision, This clause apparently treats the “remain- first, for the entire one-half of the net ining one-half income,” i. e., the income which come during his wife's life, with an express remained after the half income given to the disposition after her death, among her relwife for life, as a separate fund, and ap- atives, of a portion only of this one-half inparently authorizes the inference that the come which would have come to her, leaving payments of income to the wife's relatives the balance of this one-half undisposed of by after her death were by the testator con- any express direction;

any express direction; and he had also, sidered as being made as, in part at least, secondly, made express provision for only a "disposing of the one-half income previously portion of the other one-half of the income given to the wife. But while the entire in- of the entire estate. come is apparently divided, there is so far Then follows a separate distinct paragraph, no indication or suggestion that the principal the sixteenth, dealing with income alone, as is to be divided, or is not to remain entire. follows:

The next paragraph, the fifteenth, provides "I further direct that all remaining surplus for a payment to the issue of this nephew income be divided equally and annually between and niece respectively of the sum of $50,000, my two sisters Katherine V. Dorey and Helen

.” with cross-remainders on survivorship, and

This provision gives rise to the principal these two sums of $50,000 each are to be paid dispute, which is whether “surplus income" on contingencies which have not yet occurred.

under this clause means the income not These payments, however, are specially di

previously effectively disposed of by the rected to be made “out of the principal or previous bequests of income, or whether the corpus of the second one-half of my estate.” previous bequests of income, or whether the

"surplus income" bequeathed by this clause Up to this point in the will, as I have said, is the surplus only of the second half of the there had been no indication of an intention income, being that not given to the wife durthat the entire principal of the trust estate ing her life. The latter contention is based should at any time be divided into two por- on the general claim above discussed that it tions, and this direction for manner of pay. sufficiently appears on the whole will that a ment at this time by a division of principal division of the principal into two funds from cannot, in my judgment, avail or be con- its inception is contemplated, and that, if sidered sufficient to establish the right to this be established as the true construction make such division or principal into two of the will, then the "surplus income” refunds from the inception of the trust. It

ferred to in this paragraph must be the surseems to be, however, a plain clear direction plus only of the income of the second or rethat these payments, when made, shall be maining half of the principal fund referred made in this manner, and when the contin- to in the fourteenth paragraph as being the gency arises requiring the payments, or ei-surplus "of the remaining one-half of the inther of them, to be made, under this clause, a come not yet disposed of” by the legacies to division of the principal into two trust funds the wife and others after her death, by the may then be required, in order to carry out paragraphs preceding the fourteenth. all the express provisions of the will. Had The "surplus" income, taking this in the similar directions been given that the $50,000 sense of income not actually or effectively legacies previously given to the issue of the disposed of, certainly included a balance of wife's kin be paid “out of the first half of income after the wife's death not absorbed my estate," I am inclined to think that the by the payments to the previous legatees, and division of the entire estate into two trust the precise question is whether this express funds would then have been required on the direction as to "surplus income” includes happening of the contingencies therein pro- all income not actually disposed of, or whethvided for payment, and that, in the absence er this bequest of the surplus income is to be of any special direction for a previous divi- treated as a specific bequest of the surplus sion, the division into two funds must have of the remaining or second one-half. If so, taken place, as soon as the contingency for the “surplus” of the first one-half falls into payment out of either specified half of the the general residuary bequest of the equitable principal first arose. But no such provision or beneficial estate in which the trustee has for payment of the two $50,000 legacies to the residuary legal title. This clause, the the issue of the wife's kin was made, and, in seventeenth, directs all the residue to be the absence of any other provision controlling divided into nine equal parts and paid over, the holding of the trust estate as an entire three-ninths to each of his sisters, her heirs estate, it must, I think, be so held, at least, and assigns, and one-ninth each to his until this contingency for payment under this nephew J. N. Downey, his niece Helen L. fifteenth paragraph arises, and the trustee Downey, and Katherine N. Nipper, his wife's under the will has no authority to divide the niece. The time for this payment is not exprincipal of the trust estate into two por-pressly fixed; but treating the previous tions until that time. The matter of the dis- clause as one disposing of the entire surposition of the "surplus income” until the plus income of the estate, not merely of the

surplus of one-half of the income, this last death or to M. and P. or the survivor of them residuary clause applies to the principal fund for want of such issue alive at the determinaalone of the equitable estate, leaving the tion of the particular estate. previous clause to be construed as the re- Dig. $$ 1488–1510; Dec. Dig. $ 634.*]

[Ed. Note. For other cases, see Wills, Cent. siduary clause applying to the income. It must be conceded, I think, that by rea-2. WILLS ($ 608*)-RULE IN SHELLEY'S CASE

-APPLICATION-REMAINDERS. son of the confused and inartificial character

The remainder is contingent as to the perof the will as bearing on these points of dis- son or persons who shall take at the death of pute, the contention can fairly be made that the life tenant; and therefore the rule in Shelsuch division of principal into two funds ley's Case, which is a rule of law, and not of

construction, does not apply. from its inception and a separation of the

[Ed. Note.-For other cases, see Wills, Cent. incomes into two distinct portions is sug-Dig. $8 1372-1378; Dec. Dig. $ 608.*] gested or indicated; but, as I have stated, it

3. EQUITY (S 264*)-PLEADING-DEMURRER. cannot be safely said that, taking the whole

C. C., the life tenant, and her surviving will, such division has been directed, or that children, executed two mortgages upon the dethere are any directions in the will sufficient vised premises. M. M. S., one of the children, to justify the conclusion that the testator in die dhe awios mortgages mentioned (with a prior tended in the sixteenth paragraph to restrict one not here in dispute) L. B. S., who was made the "surplus income" to that of the second a defendant, moved to strike out of the bill the half of the fund referred to in the fourteenth prayer that she may be decreed to pay the com

plainant's mortgages or be foreclosed of her paragraph.

equity of redemption in the mortgaged premises. On considering the whole will and the Held, further, the motion is tantamount to a arguments and briefs of counsel, I reach the demurrer, and a demurrer will lie to the prayer conclusion: (1) That during the joint lives of a bill in chancery. of the sisters they are equally entitled to the

[Ed. Note.-For other cases, see Equity, Cent. surplus income of the entire estate after de- | Dig. $$ 536-540; Dec. Dig. § 264.*] ducting the special legacies; and (2) that|4. REMAINDERS ($ 14*) – WILLS ( 498*) –

MORTGAGE BY REMAINDERMAN-CONSTRUCuntil the happening of the contingency requir

TION—“ISSUE OF ONE'S BODY”-MOTION TO ing the payment out of one-half of the prin STRIKE. cipal fund of the legacies to the issue of J. That part of the prayer of the bill in this Nethermark Downey and Helen L. Downey, cause to which objection is made must be struck or either of them, the fund is not divisiblé un contingent remainder (with others) at her death,

out, because: As L. B. S.'s mother had only a der the will, but is to be held as an entire which became extinguished, as to her mother's) fund. And this construction as to the time interest, by the happening of that event, she of division does, I think, carry out all the (L. B. S.) inherited nothing from her mother; provisions of the will. Any construction fix-ated that remainder, which has as yet become a

and, as her great-grandfather by his will creing either the inception of the trust or any vested remamer in nobody, she has not taken other time for the division of the principal as a purchaser from him, although she may, must necessarily rest more on a supposed mother, the life tenant, because she is one of the

and will, yet do so, if she survives her grandplan, indicated or suggested by the partial issue of her grandmother's body begotten, acand incomplete provisions rather than on the cording to the legal meaning of that term, construction of the words of the entire will which comprehends issue ad infinitum, and not actually used by the testator and from which that of the body of an immediate ancestor only.

[Ed. Note.-For other cases, see Remainders, his intention must finally be determined.

Cent. Dig. $ 10; Dec. Dig. § 14;* Wills, Cent. Whether, on the death of either of the Dig. 85 1087-1089; Dec. Dig. § 498.* sisters, the payment to the survivor of either For other definitions, see Words and Phrases, the entire or any portion of this surplus in- vol. 4, pp. 3782–3792; vol. 8, p. 7693.] come is to be continäed, is not decided. De 5. REMAINDERS_(§ 14*)-POWER TO CONVEYcision upon this point should not take place CONTINGENT ESTATES. until the question arises and the parties then

Neither M. M. S., daughter of the life ten- . interested are heard, and at this time would ant, nor any of her life tenant's) other chil

dren, were empowered by section 19 of the Conbe premature.

veyancing Act (2 Comp. St. 1910, p. 1539), to

dispose of, or in any manner charge, the land (83 N. J. Eq. 361)

described in the bill; they being within the proTANTUM V. CAMPBELL et al.

viso that no person shall be empowered to dis

pose of (mortgage) any contingent estate where (Court of Chancery of New Jersey. May 28, the contingency is as to the person in whom the 1914.)

estate may vest. (Syllabus by the Court.)

[Ed. Note. For other cases, see Remainders,

Cent. Dig. § 10; Dec. Dig. § 14.*]
J. M. devised certain land to C. C. for

Bill by Margaret W. Tantum against Cathlife, and after her death to the lawful issue of erine Campbell and others to foreclose morther body begotten, her surviving, in equal shares gages. On motion to strike out part of the as tenants in common in fee simple;. but in prayer of the bill. Motion granted. case she should die without such lawful issue surviving, then to M. and P. as tenants in com William J. Backes, of Trenton, for the momon, or to the survivor of them. Held, C. C.

tion. Charles H. English, of Trenton, optook an estate for life, with a contingent remainder to her issue in esse at the time of her / posed.

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

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