and bill of sale were fraudulently procured, I when she joined her husband in the conveyand should be set aside.

The decree of the Court of Chancery will her, her interest in the property, as against be affirmed.

the husband's creditors, would be secured to her to the extent of the value of her dower, the same as though title had been vested in the husband. Thus it appears that in Belford v. Crane the wife had never extinguishDec. 12, ed her inchoate right of dower by deed of release, but that, on the contrary, she had taken the legal title to the premises in trust for her husband, and, upon its being held that the property was his in equity, the wife's inchoate right of dower was also held to exist. However, if there be any conflict between Belford v. Crane and the other cases referred to, as all of them except Den v. Johnson are later cases in this court, they must govern my decision.

A decree will be advised for the sale of the defendants' lands free from the estates granted and conveyed by Weber and wife to the Bill by William Campbell against Charles latter through the intervention of the interO. Weber and others. Decree for complain-mediary, including the inchoate right of dow. er claimed by the wife.

WALKER, V. C. This was a suit in aid of a judgment creditor to set aside fraudu- (Court of Errors and Appeals of New Jersey. lent conveyances, which issue was determined in favor of the creditor, and the question reserved upon the hearing as to whether the wife of the defendant Weber was entitled to have an inchoate right of dower saved and protected to her.

"Joline, J. The petition in this case sets out that Jeremiah N. Alexander and Anna B. Alexander are the father and mother of Jeremiah N. Alexander, Jr., an infant aged 16 years, and Mary B. Alexander, an infant aged 13 years; that the mother is possessed of certain property worth about $6,000, upon which there is a mortgage of $500; that she *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

J. Eq. 384-386, 54 Atl. 1086; Baker's Case, 61 N. J. Eq. 592, 47 Atl. 1046; 2 N. J. Digest, 2907, § 72a; Godfrey's Case, 72 N. J. Eq. 354, 65 Atl. 202; Woolsey v. Woolsey, 72 N. J. Eq. 900, 67 Atl. 1047; McSpirit Estate, 73 N. J. Eq. 616, 68 Atl. 755; Lippincott's Case, 68 N. J. Eq. 581, 59 Atl. 884.

[2] "The question then naturally occurs: Has any statute conferred upon the orphans' court power to direct in advance a guardian to expend the income of his ward or how to expend it? I have failed to find any statute of this character, and none has been presented to me by counsel. I conclude, therefore, that in so far as the orphans' court is concerned it must be expended as the best judgment of the guardian dictates, and that he must rely upon the court to allow it in his account.

"In Streitvolf v. Streitvolf, 58 N. J. Eq. 563, 41 Atl. 876, 43 Atl. 683, 78 Am. St. Rep. 630, the court, in speaking of the duty of a parent, says: "The necessity that is the criterion of validity is not mere physical necessity, but rather social and moral propriety, having regard to the situation of the parties and the fitness of things. shelter, and clothing are physical necessities. In an enlightened community, the common education of a child is a moral and social necessity. Professional training is not a general necessity, but is a special advantage.'

Food,

"These remarks are as applicable to guardians as to parents, and the guardian in this case, I think, can safely pay out the income due the young man on account of his education, and just as safely pay the income due the young girl, or a part of it, upon her musical education. If she does not in the future exhibit this special aptitude for music, the expenditure can cease. It is within the power of the guardian to see the income is applied to such education, and, I may add, to her clothing. No doubt her parents feel that the development of her latent powers will fit her to earn a livelihood in the future, and surely a court, in the light of the above decision, would not surcharge a guardian with money expended for such a laudable purpose.'

"The power to do that which is asked of this court is inherent in the Court of Chancery, if anywhere. Alling v. Alling, 52 N. J. Eq. 92, 27 Atl. 655. In Re Hannah Barry, 61 N. J. Eq. 140, 47 Atl. 1052, the court holds that: "The general policy of the statute and decisions in this state upon the question now presented has been to leave the question of the necessity of the expenditure of the personal estate, both income and principal, to the judgment of the guardian, in the first instance, subject to affirmance of the orphans' court on the settlement of his accounts, and in all ordinary cases this course (which has been followed for over a century) affords pro- firmed. tection both to the guardian and the infant.' [3] "This case was decided in 1900, and the Legislature, în 1901, passed an act allowing the orphans' court in certain instances to make an order authorizing the use of the (Court of Errors and Appeals of New Jersey.

principal of the personal estate, or a part thereof, as it may deem for the best interest of said minors. P. L. 1901, p. 325. Said act Idid not authorize the court to direct the expenditure of the income.

"I have been unable to find that this court has the power or authority to make an order directing a guardian how he shall expend the income of his ward, or to direct him to expend at all.

"My conclusion, therefore, is that the prayer of the petition be denied.

It may

not be amiss at this junction to make a few observations.

[4] "In so far as the boy is concerned, the prayer is that the income may be used for his education; and, as to the girl, that it may be used for her musical education, for which she has shown a singular aptitude. The mother owns a property worth $6,000, upon which there is a mortgage of $500, and has no income. The father has an income of $1,200 a year. Taking therefrom $30, the interest on the mortgage, there is left $1,170 with which to feed and clothe his family and educate his children, plainly an inadequate sum.

The order of the Prerogative Court is af

(82 N. J. L. 468)

SMITH v. BARNARD.

Nov. 20, 1911.)

(Syllabus by the Court.) HIGHWAYS (§ 176*)-LAW OF THE ROAD-CONSTRUCTION.

The law of the road relating to the passing by one vehicle of another one ahead and moving in the same direction does not relieve the driver of the former from the duty resting on him of using reasonable care to observe and avoid other vehicles including those going in the opposite direction.

[Ed. Note. For other cases, see Highways, Cent. Dig. § 465; Dec. Dig. § 176.*]

Error to Circuit Court, Bergen County. Action by Charles H. Smith against Arthur W. Barnard. Judgment for defendant, and plaintiff brings error. Reversed.

Mackay & Mackay, for plaintiff in error. Doremus & Lecour, for defendant in error.

PARKER, J. The suit arose out of a collision between a carriage driven by plaintiff and an automobile driven by defendant, upon a public highway called Ridgewood avenue, at Ridgewood in the county of Bergen. The declaration contains two counts. The first count charges for negligence that defendant did so carelessly run and operate the auto

N. JJ

SMITH v. BARNARD

735

mobile along the highway named, and on the | strenuously argued, and this argument seems wrong side thereof, as to collide with the to have carried great weight in the mind of wagon in question. The second count ascribes the collision to defendant's alleged careless and negligent failure to keep a proper lookout and to have his automobile under proper control. The trial judge directed a nonsuit, and the principal assignment of error is based upon an exception to that ruling.

the trial judge, that the rule of the road absolutely required defendant, in passing the covered wagon ahead of him, to do so on the left, irrespective of the position of that wagon in the road. Such a rule is intimated in the opinion in State v. Unwin, 75 N. J. Law, 500, 501, 68 Atl. 110, as resulting from the The circumstances of the accident, as the language of Road Act, § 91 (3 G. S. p. 2823), jury might have found them, are substantial- re-enacted as to automobiles in P. L. 1906, p. ly these: The plaintiff was driving a runa- 187, § 22, although this rule of the road was bout and had just met a friend named Lamb in no way involved in the decision of that who had arrived on a train at the railroad case. Taking this view of the statute, the station at Ridgewood. His sister Bridget trial judge ruled out testimony that the pedarrived on the same train, and all three got dler's wagon was to the left, or south, of the into the runabout, sitting on one seat; plain- middle of the road, and that there was a tiff being in the middle. They started to clear space, to the right or north of it, of drive from the railroad station, first south-some 25 feet. This ruling was excepted to ward, parallel with the track, to Ridgewood and is assigned for error, and is worthy of avenue; then southeasterly across Ridgewood discussion at this point. Assuming the rule avenue, which is about 45 feet wide, to the as stated in the Unwin Case, still the testisoutherly side of the same; then easterly mony was relevant and competent, because, along Ridgewood avenue to Smith's home. if the defendant was under a legal duty of The speed of the runabout was about a mile passing the peddler's wagon on the left, he in 10 minutes. As the runabout was straight- was under a similar duty of passing vehicles ening out toward the eastward, on the south-going in the opposite direction to the right, erly side of Ridgewood avenue, it was stop- and a jury may well have found that he ped temporarily by another wagon standing ought to have waited until the peddler's wagat the curb ahead. All this time a covered on had drawn over to the right and given wagon had been approaching from the east-him space to pass or a chance to see what ward at a moderate rate of speed, and, as was ahead of that wagon, instead of taking Smith's wagon was held up, the peddler's the left side of the road before he could see wagon passed on Smith's left, and the defend-whether anything was approaching it from ant, who had been coming up behind the ped- the opposite direction and with increased dler's wagon in a westerly direction in his chance of collision on account of the restrictautomobile, cut out behind the peddler's waged space. on to his own left, apparently without seeing the Smith runabout, and collided with the this: Plaintiff's wagon on the right of the Returning to the nonsuit, the situation was left/fore wheel of the said runabout, throw- this: Plaintiff's wagon on the right of the ing Miss Smith out on her head, and inflict-road going east, compelled to turn out slighting injuries from which she died, and injury to the left by a wagon standing at the

ing the plaintiff, besides damaging his wagon. The trial judge was asked to nonsuit on the ground that no negligence of the defendant had been shown, and also on the ground of contributory negligence. He declined to nonsuit on the second ground, but did nonsuit on the first, holding that "it had not been shown that the defendant failed to do anything that a reasonable and prudent man should do by means of which the accident resulted."

The declaration is a little vague. It charges, in the first count, that the defendant did so carelessly and negligently run and operate said automobile along the said highway, and on the wrong side thereof, that as a direct and proximate cause of such carelessness and negligence the accident resulted. This may be read as charging general carelessness in operation, or carelessness in running on the wrong side, or both. But whatever may be intended, the second count charges distinctly a failure to keep a proper lookout and to have the machine under proper control; and we are clearly of opinion that a case for the jury was made out under this count. It is

south curb, and in the act of passing the peddler's wagon, which was going west and about in the middle of the road; defendant's automobile directly behind the peddler's wagon, which obstructed defendant's view. From this and from the fact, as the jury might have found, that the automobile turned rather sharply to the left, struck the left fore wheel of plaintiff's wagon at an angle, as testified, and with enough force to throw all three occupants out of it and kill one of them, it was entirely open to the jury to infer that defendant had "failed to keep a proper lookout and have his automobile under proper control;" and that, if he had done either, the accident would not have resulted. As has been said, if the defendant's duty was to pass the peddler's wagon on the left, he was not entitled to do so entirely at the risk of other vehicles with rights equal to his own, and which, coming from the opposite direction, had primarily at least as much right as he to utilize the space to the south of the peddler's wagon. As to such vehicles a duty of reasonable care rested upon him to discover and avoid them; and whether he exercised

such care, under the circumstances, was a the next of kin had been shown. Hence the question for the jury.