their joint efforts, their industry, and frugality, had accumulated their fortune, and, if we assume that he was a man with the ordinary feelings of affection toward the wife who had lived with him so long and helped him so well, he would, naturally and properly, when he came to dispose of his property, leave it to her for the reason that he gave the scrivener, that she had helped earn it. The complainants do not claim that the decree effectuates the intention of Selah Au any settled testamentary intention. Upon the contrary, all the evidence shows that there was no settled testamentary intention on his part prior to the execution of his will. The strongest evidence produced by the complainants is an admission of Louise, after her husband's death, that he started to make a will a short time after a stroke of paralysis, but said that he had so many relatives that it hurt his head to think about them all; and that she told him not to bother about his affairs, but to make a short will, leaving ev-mack. Confessedly he did not mean to diserything to her and she would make a will tribute his property among his heirs and next and fix it for his relatives just as she knew of kin in the proportions fixed by statute in he wished to have it. How she could know case of intestacy, nor is there evidence jushis wishes when he had not defined them in tifying the conclusion that the legacies given his own mind, and was unable to do so, is by Mrs. Aumack to her husband's nieces were incomprehensible. It is unnecessary to de- not exactly what he had intended. If we are cide whether Mrs. Aumack would have been to go contrary to the intention of Mr. Aubound as trustee for her husband's heirs and mack and make an equal distribution where next of kin, in case it were established that he intended an unequal distribution, we are she had assented to this undefined arrange- not enforcing a trust, but are making a new ment. The fact that Selah Aumack had nev-| will, which he confessedly would not have er decided in what proportions he would distribute his property among his own relatives is most persuasive that no agreement had been made between him and his wife prior to the execution of his will. If he and his wife made an agreement that his relatives should have the property after her death in shares to be fixed by her, it would have been easy for him to devise and bequeath the property to his wife for her life only and, after her death, to such of his next of kin as she might appoint. This would have avoided the difficulty which the witnesses for the complainants rely upon as an explanation of his failure to make the distribution by his own will. In view of his long and successful experience in business, we find it impossible to explain his failure to protect the interests of his next of kin, unless he meant to do exactly what he told the scrivener and what his will accomplished. The circumstances of the case sustain this conclusion. Louise C. Aumack, immediately after her husband's death, transferred the property to her own name, and although she might have done this without the knowledge of her husband's rel- (Court of Errors and Appeals of New Jersey. atives, she did more, which those of them who lived in the neighborhood must have known, for she made considerable gifts of real estate to the church and to her brother without objection on the part of any of the complainants, who, if the theory of their bill is correct, were defrauded thereby. Even her admissions as testified to by witnesses for the complainants, upon which they rely, indicate that the arrangement between her husband and her permitted her to use as much of the estate as she chose for herself, so that there might not be very much left. The will of Selah Aumack was a natural expression of the wishes of a man of proper feeling. He and his wife were aged people, who had lived together many years, and who, by made. The evidence as to his varying inten- The decree must be reversed, and the record remitted, to the end that a decree may be entered dismissing the bill. The defendants are entitled to costs in both courts. KALISCH, BOGERT, VREDENBURGH, and WHITE, JJ., dissenting. (82 N. J. L. 683) DUBELBEISS v. TOWN OF WEST HOBOKEN. March 4, 1912.) For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 82 A.-57 proved by this court, the Supreme Court may not only order a reversal of the judgment of an inferior tribunal, but may enter such new judgment in that court as it appears by the record that the tribunal below ought to have rendered. [Ed. Note. For other cases, see Certiorari, Cent. Dig. §§ 185-194; Dec. Dig. § 69.*] (Additional Syllabus by Editorial Staff.) 4. APPEAL AND ERROR (§ 1094*)-REVIEWDECISIONS OF INTERMEDIATE COURTS-QUESTIONS OF FACT. The determination of the Supreme Court of questions of fact affecting the validity of ordinances, or other municipal proceedings, will not be inquired into on writ of error to the Court of Errors and Appeals. on notice given by the prosecutor, pursuant to section 5 of the Certiorari Act. The counsel for the town, as the argument was about to proceed before Mr. Justice Swayze, requested the court "not to hear the case, but to defer the matter for hearing before the Supreme Court at the November term, as he preferred to have the Supreme Court hear it." The case, however, was thereupon heard, and judgment was rendered as above recited on Afterwards on November October 26, 1910. 5, 1910, counsel for the town served a notice upon the prosecutor in certiorari that application would be made to the Supreme Court for an order striking from the files of the court the order for judgment, upon the ground that the order or judgment was not entered by any rule of the Supreme Court; Certiorari by Eugene Dubelbeiss against that it was not the judgment of the Supreme the Town of West Hoboken. Judgment for Court; and that section 5 of the Certiorari the prosecutor (81 N. J. Law, 98, 79 Atl. Act, Revision of 1903 (P. L. 1903, p. 343) is 290), and defendant brings error. Affirmed. unconstitutional, and takes away from the Supreme Court its prerogative to determine Merritt Lane, for plaintiff in error. Edall cases on writ of certiorari, and is an inwards & Smith and James C. Agnew, for de- terference by the Legislature with the judi [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4322-4352; Dec. Dig. § 1094.*] Error to Supreme Court. fendant in error. VOORHEES, J. This case comes to this court by writ of error removing a final judgment of the Supreme Court. The judgment so brought under review reversed a determination of the town council of the town of West Hoboken, dismissing the defendant in error from the police force of that town, and cial authority and deprives the defendant of having its rights upon an action in cerof the right guaranteed by the Constitution tiorari passed upon by the Supreme Court. At the November term, 1910, of the Supreme Court, the case came on to be heard upon the above notice, and after the determination of that branch of the case adversely to the plaintiff in error, this writ of error was sued out of this court, on the 23d day of March, 1911. [1] The ample and satisfactory opinion of the Supreme Court written by Mr. Justice Parker, 81 N. J. Law, 98, 79 Atl. 290, is approved by this court, and is adopted as determinative of the questions therein dealt with. It remains only, therefore, to consider the other matters which have been assigned for error in this court. [4] It is argued by the plaintiff in error that the Supreme Court based its determination upon testimony taken under the writ of certiorari after the trial before the town council had been concluded; that the consideration of such testimony was error; and, further, that the Supreme Court was with upon such reversal ordered him to be restored in all things. The defendant in error, a patrolman, with another officer, raided the disorderly house of one De Lorenzo, arresting her and the inmates, which was followed by her conviction and the imposition of a prison sentence. Two days after the raid, she made complaint in writing to the mayor and common council of the town of West Hoboken, against the defendant in error, and his fellow officer, that in making the raid and arrests the patrolmen had used violence and foul language, had assaulted two of the inmates, and had taken property from another. The town council proceeded, on April 13, 1910, to hear the testimony of witnesses, and to try the patrolmen upon these charges, in spite of the request of the court of quarter sessions to delay such hear-out power to enter judgment in that court, ing until after the indictment, then found against De Lorenzo, had been tried, and on April 20th found them guilty and adjudged that they be dismissed from the police force. Thereupon a writ of certiorari was allowed to remove the judgment of the town council. Under that writ, the findings of the council, together with the testimony taken upon the trial, were sent to this court. Thereafter depositions were taken before Supreme Court examiners to be used upon the argument of the writ of certiorari and were so used. The certiorari was brought on for argument before Mr. Justice Swayze, a single justice, up the greatest possible relief which the prosecutor could obtain being a rehearing by the town council. This court will not inquire into the facts; the determination of the Supreme Court being final thereon. Lehigh & Wilkesbarre Coal Co. v. Borough of Junetion, 75 N. J. Law, 922, 68 Atl. 806, 15 L. R. A. (N. S.) 514. [2] The question, therefore, is confined to the propriety of the reception and consideration of the additional testimony. The amendment of the Certiorari Act of 1907 (P. L. 1907, p. 95) expressly provides for the taking and consideration of such additional tes determining it, but is not, even for 20 years, timony; but, aside from that statute, this | indicate such an intention. Abandonment is a court has determined that when the investi- question of intention. Nonuser is a fact in gation of questions of fact is required for the proper review of ordinances or other municipal proceedings, the Supreme Court has power, by its constitutional jurisdiction, to consider such matters of fact, and that the statute is not the source of the existence of that power. Lighthipe v. Orange, 75 N. J. Law, 365, 68 Atl. 120, affirmed 76 N. J. Law, 817, 74 Atl. 1135. [3] So, too, with reference to the entry of the judgment in the Supreme Court without ordering a new trial before the town council. The Supreme Court was right in ordering not only a judgment of reversal, but may enter such new judgment in that court, as it appeared by the record that the tribunal below ought to have rendered. This is in consonance with the doctrine long adopted by the Court of King's Bench and which has been approved by this court. State, Hoxsey, Pros., v. City of Paterson, 39 N. J. Law, 489; Smith v. Ocean Castle, 59 N. J. Law, 198, 35 Atl. 917. In addition, however, to this right, there is also the statutory warrant contained in the act of 1907, supra, for such judgment. That act provides that "the court may reverse or affirm in whole or in part such * findings or determination, suspension, dismissal * * * reviewed." The judgment of the Supreme Court will be affirmed. ARMSTRONG v. LEHIGH & N. E. R. CO. (Court of Errors and Appeals of New Jersey. March 4, 1912.) (Syllabus by the Court.) [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 651-659; Dec. Dig. § 260.*] Error to Supreme Court. Action by Robert V. Armstrong against the Lehigh & New England Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed. Henry C. Hunt, for plaintiff in error. Levi H. Morris and Allen R. Shay, for defendant in error. KALISCH, J. The plaintiff below brought his action against the defendant company to recover compensatory damages from it for injuries done to his land by reason of the defendant company maintaining a dam on its land which backs the water of a small stream, known as Papakating creek, thereby overflowing the plaintiff's lands. The trial resulted in a verdict for the plaintiff for $100. The plaintiff in error seeks a reversal of the judgment for alleged error in the court's charge to the jury and in the refusals of the court to charge certain requests asked for by the plaintiff in error. The facts established by the evidence, succinctly stated, are these: Obadiah Pellet was the owner of an extensive tract of land through which ran Papakating creek and across which he erected a milldam for the purpose of running a gristmill standing alongside the creek. The dam caused the water to overflow a considerable portion of his land. Obadiah died in 1849, and by his will, probated December 8, 1849, he devised to one of his sons, John W., the land now owned by the plaintiff, and to his son Richard 244 acres on which were located the mill and dam, which Richard continued to use until 1869, maintaining the overflow from the dam over the plaintiff's land. That same year the dam was carried away and the gristmill for milling purposes was abandoned, fell into decay, and was removed. In 1896, Richard conveyed to William J. Turner, for the defendant's use, .08 of an TRIAL (8 260*)-INSTRUCTIONS-REQUESTS. acre of the land devised to him by Obadiah, The trial judge refused to charge the fol- the deed of which contained the following lowing request: "That where an easement is clause: "Together with the right and privicreated by grant, it must clearly appear that lege to erect and maintain a dam four feet there was an intention to abandon the right; high parallel with and distant seventy feet and, further, that the easement claimed was created by grant through the will of Obadiah southerly from the center line of said railPellet, and that nonuser for 20 years under road and extending not more than three hunthose circumstances is not conclusive evidence dred feet from said public road; and also the in itself of an abandonment"-but charged the jury as follows: "To accomplish an abandon- privilege of digging and maintaining a basin ment, the facts or circumstances must clearly thus formed to a depth of not more than For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes four feet, and as far west as the iron bridge | millpond, but a pond of much smaller dion the public road crossing said stream, the mensions, that is, not to exceed 125 feet in width of said pond not to exceed one hun- width and to continue so long as it was used dred and twenty-five feet; and also the right for creamery purposes. and privilege to cut and harvest the ice Judgment should be affirmed. formed on said pond as long as the property hereby conveyed shall be used for creamery purposes." The deed was made subsequent to the deed to the plaintiff's ancestor in title, which was in 1893, and is subject to it. There was testimony to the effect that after 1869 Richard built a dam just below the old one, or put the old one into repair, so as to make an ice pond for the purpose of collecting ice; but there is no pretense that after 1869 he ever maintained a dam for milling purposes, for the mill had been abandoned in 1869 and never came into use again for milling purposes, but was suffered to go to decay as has been stated. The insistence of the defendant company is that the devise of the mill property carried with it the appurtenant right to maintain the pond over plaintiff's property, and that there is no evidence upon which the abandonment of such right can rest. The devise of the mill property carried with it the right to maintain the pond as it then was, but the abandonment of such right is a question of fact, and there is evidence in this case from which such abandonment may be inferred. (82 N. J. L. 530) MCDERMOTT v. DE MERIDOR CO. (Court of Errors and Appeals of New Jersey. March 4, 1912.) APPEAL AND ERROR (§ 179*)-REVIEW-Sur FICIENCY OF PRESENTATION. A rule of damages contended for by plaintiff in error will not be considered where it was suggested only as a ground for the direction of a verdict in its favor. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1137-1140; Dec. Dig. § 179.*] Error to Supreme Court. Action by Frank McDermott, assignee of D. O. Haynes & Company, against the De Meridor Company. From a judgment of the Supreme Court (80 N. J. Law, 67. 76 Atl. 331) affirming a judgment for plaintiff, defendant brings error. Affirmed. George W. Flaacke, for plaintiff in error. Theodore Rurode, for defendant in error. PER CURIAM. We agree with the views expressed in the opinion delivered by Mr. Justice Swayze in the Supreme Court upon the questions at issue in this case, other than the question of the measure of dam ages. The alleged error mainly relied on by the defendant company for a reversal of the judgment is based upon the refusal of the court to charge: "That where an easement is created by grant it must clearly appear Respecting the latter question, we that there was an intention to abandon the find it unnecessary to express an opinion, right; and, further, that the easement claim- because an examination of the record in the ed was created by grant through the will of trial court shows that the point was not Obadiah Pellet; and that nonuser for 20 properly raised there. The rule of damages years under those circumstances is not con- contended for by plaintiff in error was sugclusive evidence in itself of an abandon-gested only as a ground for the direction of ment." The trial judge, in substance, charg- a verdict in its favor. But the rule, if well ed this request when he instructed the jury founded, would furnish no ground for such as follows: "To accomplish an abandonment, a direction. the facts or circumstances must clearly indicate such an intention. Abandonment is a question of intention. Nonuser is a fact in determining it, but is not, even for 20 years, conclusive evidence in itself of an abandonment. Its weight must depend upon the in The judgment under review should be affirmed. (79 N. J. E. 617) HOFFMAN et al. v. QUIGLEY et al. tention to be drawn from its duration, char- (Court of Errors and Appeals of New Jersey. acter, and accompanying circumstances." The proposition, as charged by the court, is in the exact language of the opinion delivered by this court in that regard in Raritan Power Co. v. Veghte, 21 N. J. Eq. 480. The only other ground urged for a reversal of the judgment by the defendant company was the refusal of the court to charge: "That the intention to hold the ancient right is to be shown by acts and not by declarations on the witness stand, and the intention appears in the deeds from Pellet to Turner and Borden." This request was properly refused, for the deeds referred to do not show any intention to hold the right to maintain a March 4, 1912.) (Syllabus by the Court.) JUDICIAL SALES (§ 39*)—VACATION-GROUNDS -INADEQUACY OF PRICE. In the absence of fraud, irregularity, accident, or mistake, judicial sales will not be set aside for inadequacy of price, unless the inadequacy is so gross as to justify an inference of fraud. Sales, Cent. Dig. § 77; Dec. Dig. § 39.*] Swayze, Trenchard, Bogert, and Vroom, JJ., dissenting. Appeal from Court of Chancery. Proceedings in partition by Samuel D. Hoffman and others against James J. Quig ley and others. From an order setting aside | the sale, because in a conversation with Mr. a sale of the property and order of confir- | Lee, president of the Lee Land Company, in mation, and ordering the property resold, the purchaser, Carlton Godfrey, appeals. Reversed. Gilbert Collins and H. Starr Giddings, for appellant. Bourgeois & Coulomb, for respondents. October, 1910, she asked him what he thought the property would bring, to which he replied, "Not a cent less than $165,000," and therefore she was sure it would bring that price. She also testifies to other conversations of a like nature with her cotenants; but all were nothing more than expressions of opinions as to value, or price BERGEN, J. As the result of proceed-likely to be obtained at public sale, and the ings in partition, the lands described in the petitioner was not justified in relying on bill of complaint filed in this case were de- such statements as conclusive or misleading creed to be sold by the special master at regarding the price which it would certainprivate sale for not less than $120,000, or, if ly sell for at the sale. this could not be done before a day named in the decree, then at public sale, subject to, or free from, mortgage incumbrances amounting to $20,000, as he should deter mine. The master, not being able to make a private sale, sold the lands at public auction to Carlton Godfrey for $78,000, subject to the mortgage incumbrances, and reported the sale to the Chancellor, by whom it was confirmed December 9, 1910. The property was owned by Mary R. Quigley and her children, as legatees of Francis P. Quigley, deceased, Samuel D. Hoffman, and Lee Land Company as tenants in common, and after confirmation of the sale Mary R. Quigley filed a petition in the cause, praying that the sale and order of confirmation be set aside and the property resold, which was ordered, from which order the purchaser, Godfrey, appeals. The petition set out, among other things, that one Franklin B. Lippincott was ready to enter a bond to bid $115,000 for the property, if resold, which offer he verified by affidavit attached to the petition. In the absence of fraud, irregularity, accident, or mistake, judicial sales will not be set aside for inadequacy of price, unless the inadequacy is so gross as to justify an inference of fraud. Morrisse v. Inglis, 46 N. J. Eq. 306, 19 Atl. 16. As in this case the special master, whose fairness is not questioned, was not able to sell it for $120,000 at private sale, and the only offer by a bona fide bidder is $115,000, the difference between the selling price and the subsequent offer or obtainable price at private Again, petitioner claims that because Godfrey agreed, after the sale, that both Hoffman and Lee might become his partners in the purchase, that is evidence of a fraudulent sale. We think the testimony shows that both Lee and Hoffman did all they could to advance the sale. They induced Godfrey to attend and purchase, agreeing to aid him by loaning him their share in the proceeds as an inducement to bid. We fail to find in the testimony any such proof of collusion or connivance as would warrant a finding that the sale of this land was in any way unfairly influenced by Lee or Hoffman. Godfrey was an independent buyer, and after the sale had a right to negotiate with Lee and Hoffman, the owners of twothirds of the land and entitled to that pro portion of the proceeds, to join him in the purchase, and there is no proof that the conduct of Godfrey was in any way detri mental to the sale. There being no sufficient proof of any act by either Godfrey, Lee, or Hoffman tending to discourage bidders, and the price not being sufficiently inadequate to justify the setting of the sale, we think that the order appealed from should be reversed, with costs. SWAYZE, TRENCHARD, BOGERT, and VROOM, JJ., dissent. (82 N. J. L, 662) BODINE v. BERG et al. sale is not so inadequate as to warrant an (Court of Errors and Appeals of New Jersey. inference of fraud or unconscionable conduct in conducting the sale, and as the right of one to have the benefit of a reasonable bargain when he buys at a judicial sale should not be denied without a just cause, if bidding at judicial sales is to be encouraged, it would seem that, if this sale is to be set aside, it must be because it was so managed as to discourage bidders, either by the master who conducted the sale, or by those interested in buying it at a lower price than could be obtained if the sale was fairly conducted; and this is substantially what the petitioner claims was done in this She testifies that she did not attend case. March 4, 1912.) (Syllabus by the Court.) 1. EVIDENCE (§ 80*) — PRESUMPTIONS - LAWS OF OTHER STATES-COMMON LAW. In the absence of proof of the law of another jurisdiction, the inference is that the common law still prevails there. [Ed. Note.-For other cases, see Evidence, Cent. Dig. 8 101: Dec. Dig. § 80;* Common 2. ALTERATION OF INSTRUMENTS (§ 6*)—MA- At common law, the alteration of the date of a promissory note is a material alteration; and when made by one not a stranger to the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |