case said: "I also give to my wife the sum of $600, to be at her disposal during her life." I cannot see that this case is controlling. The remarks above made apply to this case with equal force. Woods, 1 Mylne & C. 401, 403, 409; Kilvington v. Gray, 10 Sim. 293, 296, 297. This case shows the power of the court and how to exercise it. Raikes v. Ward, 1 Hare, 445. The argument that a long period of time has Annin's Exr. v. Vandoren, 1 McCart. 135, is re- elapsed, and that nothing appears among Fangarded as fully analogous to this; but in that ny's papers to show that she held these moneys case the legacy was given to the legatees, with- as trustee and must therefore have held them in out any qualification respecting their necessi- her own right, I think is unsound and dangerties. This clause followed the gift: "Should ous. To protect a trustee from accounting, my daughter Leah or Mary or either of them because of the lapse of time and because he has die, leaving no legal issue, the share or shares kept no accounts, or has seen fit to appropriate herein bequeathed to her or them (if not paid and claim all of the trust estate as his own, over by my executors, and if paid over then would be exceeding any liberality heretofore exsuch part thereof as remains unexpended), I ercised by the courts towards that class; if such give and bequeath unto my surviving children doctrine were to prevail it would prove disasand their heirs equally between them." Here trous to all interests of cestuis que trust. the testator undoubtedly placed the gift within I think that the codicil operates upon both the absolute control of the legatee, if the lega- legacies, the $4,000 as well as the residuum. tee once acquired possession, and to that extent The testator in said codicil speaks of the legacy the general rule applied; but the question dis- and of the money given to Fanny. Now both cussed and decided was whether the general are legacies; and both are money. If it should rule also applied to the moneys which remained be thought that the testator meant only one of unexpended. The court held that it did. The them, it would be impossible to say which. I learned chancellor expressed a desire to reach have no doubt that he meant both. a different conclusion on this branch of the question, but was unable to do so. He ob serves: "The uncontrolled power of expenditure necessarily implies absolute ownership, as fully as the power of disposing of it. And this difficulty can only be overcome by limiting the right of expenditure to so much as may be necessary for the support of the legatee." And so, the very method of overcoming a well settled rule of law, suggested by the court in the case of Annin's Exr., we find adopted in the will of Traphagen. In my judgment this case is not only not decisive but really raises no doubt as to the one in hand. Nor is the present case within that of Courter v. Howell, 6 Stew. Eq. 80. In that case, although in the first instance the gift of the $3,000 was for life, the testator expressly provided that if the legatee should elect, it might be invested in a house and lot and the conveyance made to her, which of course made it absolutely hers, she having so elected. I conclude that Fanny took possession of these moneys as executrix or trustee, and that she held them as trustee. So far as appears In this Fanny was never married, and consequently had no issue at the time of her death. event, the codicil gives the legacies to certain of the testator's grandchildren, being the complainants. I conclude that they are clearly entitled to the $4,000, and the $2,952.41, with interest on both sums from the time of Fanny's death. The complainants are entitled to costs. Mary A. WILSON et al. v. Joseph WILSON et al. In a suit to quiet title, when an issue as to the title was framed and tried by a jury, and the justice before whom the issue was tried certified that, in his opinion, the verdict was warranted by the evidence, and it does not appear that any error of law was committed at the trial, and no reason for setting aside the verdict being found, the decree will be in accordance with the verdict. (Decided April 30, 1887.) to quiet title. On motion to set aside she exercised and had no right to exercise any Berdict for complainants and counter mo other power over them; for the conditions under which she might exercise other rights over them are not proved. It seems to me that it would be a great departure from equitable rules to allow an executor in such case to appropriate an estate or any part of it to himself, because he chanced to be both legatee and executor. That these moneys were held in trust is shown by the views of Mr. Justice Depue in Pratt v. Douglas, 11 Stew. Eq. 534. See also Thorp v. Owen, 2 Hare, 608, 610, which shows that the court has the power to enforce just such trust as this. If Fanny was in need of any part of these funds, she might have used them at her own peril; but if in doubt as to the extent of the use, instead of acting as judge in the matter, she could have called on the court for directions; and, through a master, the extent of ner necessities could have been ascertained. tion for decree upon the verdict. Decree for The case is stated in the opinion. Runyon, Chancellor, delivered the following opinion: This is a suit to quiet title brought under the Act "to compel the determination of claims to real estate in certain cases and to quiet the title to the same." Rev. p. 1189. It is brought by Mary A. Wilson and her husband against Joseph Wilson and his wife, to quiet the title of Mary A. Wilson to certain real estate at Iselin (formerly Uniontown) in the County of Middlesex, in this State. The bill alleges that the property in question Woods v. was conveyed to Mary A. Wilson in fee, by Jacob Wilson, her father-in-law, in 1883, by deed delivered in July of that year, in consideration of her marriage to his son, whom, at the grantor's request and in consideration of his agreement to make such conveyance, she married in March of that year; that after the deed was delivered to her she redelivered it to her father-in-law for safe keeping, and it remained in his custody unrecorded, at the time of his death, which occurred in May, 1885; that she has had possession of the property ever since her marriage; that her title is disputed by the defendant Joseph Wilson, brother of her grantor, who claims under a deed from her grantor to him made in 1881, which the complainants allege was made without consideration, and merely in trust for the grantor, who was then engaged in a litigation, and who made the conveyance to prevent the property from being subject to any judgment which might be recovered against him therein; and they also to compel an account and payment by executors of what is due complainants for their share of the estate, held, that, as the testator was domiciled in the State of New York and his will was proved there, and it does not appear that it was ever proved in this State, the executors can not be required to come to an account here for their dealings with the estate. 2. Relief against all the defendants as executors and relief against one of the defendants as mortgagee of trust property with notice of the trust, are distinct matters having no connection with each other; in the latter the executors as such have no interest. A bill uniting all such matters is multifarious. (Decided April 13, 1887.) allege that at the time of making that convey. BILL for relief. On general demurrers. Al ance the grantee executed and delivered to the grantor a deed reconveying the property, which latter deed was never recorded. The defendants by their answer set up title to the property under the before mentioned deed of 1881, from Jacob Wilson, Sr., to Joseph Wilson, and allege that that deed was made and delivered in good faith for the consideration of $16,000 paid by the grantee to the grantor for the property, and that it was given and taken for the use and benefit of the grantee and his heirs and assigns, and not in any way in trust for the grantor or to protect the property from any judgment; and they deny that any reconveyance by the grantee to the grantor was ever made. On motion of the counsel of the complainants an order was made directing that an issue at law be framed in the supreme court (to be tried by a special or struck jury, unless one should not be ready at the term fixed for the trial in which case it was to be tried by a common jury) to inquire, ascertain and determine in the ordinary way whether the complainants or the defendants are seised in fee of the premises. An issue was framed accordingly, to determine whether the complainant Mary A. Wilson is the owner in fee simple of the property. The issue was, as appears by the postea, duly tried at the Middlesex Circuit, by a struck jury, and resulted in a verdict in favor of the complainant Mary A. Wilson. The justice of the supreme court before whom the issue was tried certifies that it was duly tried, and that in his opinion the verdict was warranted by the evidence. It is not alleged and it does not appear that any error of law was committed at or in the conduct of the trial; and the judge is satisfied with the result. I have read with great care all the testimony, and find no reason for setting aside the verdict upon any ground. There will be a decree for the complainants in accordance with the finding of the jury. George COCKS et al., v. Anna VARNEY et al. | The case is stated in the opinion. Mr. T. N. McCarter, for demurrants. Mr. R. Allen, Jr., for complainants: Cited Crane v. Hearn, 11 C. E. Green, 378; Brice v. Stokes, 11 Ves. 324; 5 Stew. Eq. 611; 9 Stew. Eq. 522; 13 Stew. Eq. 14; Brownlee v. Lockwood, 5 C. E. Green, 239; 74 N. Y. 539. Runyon, Chancellor, delivered the following opinion: The bill states that John Cocks, deceased, late of New York, the grandfather of the complainants, by his will provided that one fifth of the residue of his estate should be invested by his executors and the interest thereof applied by them to the support of his son David (the father of the complainants) and his wife and children, and that at David's death the share should go to David's children; that the will was proved in the State of New York and letters testamentary thereon issued there to the executors, who were the testator's sons David and Harrison, and his daughter Phebe, and Daniel E. Haviland, her husband, his daughter Mary and George J. Barlow, her husband, and his daughter Anna Cocks, who after his death became the wife of Charles Varney; that Barlow, with the consent of the other executors, got all the estate into his hands and with part of the above mentioned share bought a house and lot in Monmouth County, and took the title in his own name; and after mortgaging the property to one Wardell Ivins (now deceased) for $400 and to Mrs Varney for $4,000, conveyed it, subject to the mortgages, to the complainants whose father was then dead. The bill alleges that that is all that the complainants have received for or on account of their share of the estate, and that the share was of far greater value than that property. It also states that Mrs. Varney knew when she took her mortgage (it was taken in the lifetime of David Cocks) that the property had been bought with money which was part of the before mentioned share; and it also alleges that she, as executrix, was liable to the complainants for a far greater sum on account of that share than the amount which she claims is due to her upon the mortgage. Ivins' administrator has begun a 1. On demurrer to a bill filed by devisees, suit to foreclose his mortgage, to which suit she ᎪᏢᎡ.. under what is known as the police power of the Legislature; the Act is not an exercise of that power. is a party. The bill prays an account of the | 5. The Act of 1886 cannot be supported Mr. and Mrs. Haviland and Mr. Varney demur to the bill, upon the ground of want of jurisdiction as to the relief prayed against the executors, and for multifariousness; and Mrs. Varney demurs, upon the ground of want of jurisdiction as to the discovery and relief in respect to the estate, and answers the rest of the bill. The testator was domiciled in the State of New York, and his will was proved there. It does not appear that it was ever proved in this State. The executors, therefore, cannot be required to come to an account here for their dealings with the estate. The demurrers are well taken on that point. And so too as to the other ground of objection. Relief against all of the defendants as executors and relief against Mrs. Varney as mortgagee of trust property, with notice of the trust, are manifestly distinct matters, having no connection with each other. In the latter the executors as such have no interest. The demurrers will be allowed. 6. A trust for a burying place devotes the ground to the perpetual repose of the remains of the dead. 7. The fact that the place in question has become a nuisance, from the neglect by the City to take proper care of it, is no reason why the City should be permitted to go still further and destroy the use altogether. Mr. Cortlandt Parker, for complainants: burying place for all people, but only for "the I. The trust in the deed of 1696 is not of a old settlers, their heirs and assigns.' dated 1696; the settlement was in 1666, when sixty-four men came, whose names were reIt was corded. There was no uncertainty in the trust. The contemplated use is forbidden. for a public market The relators are descendants of the old settlers, and have the interests of cestuis que trust; and but for the ordinance of the City, forbidding all interments in the City, they have a legal right in the soil. They certainly have the right to protect their forefathers' graves and templated use, protection, and preservation. The grantors of the deed conof the old settlers only, then it is for the use II. If the use is not for the heirs and assigns of all inhabitants of Newark, and is still an enforceable trust impressed upon the land. It is a charitable use. 1. In a suit brought by the Attorney-monuments. 2. If the title to the land was held by 3. The City, if it holds the title in trust, holds it for the use of the property as a burying ground and for no other use whatever; and if the Act of 1886 gives the City the power to destroy the trust, such Act is unconstitutional. 4. If a grant is made to a municipal corporation, charged with a trust in favor of an individual, private corporation or charity, the interest which the cestui que trust or beneficiary has under the grant may sustain it against legislative revocation. 150 St. Ch. 4 Bradf. 503. at the suit of the Attorney-General. but why is the deed for the use of the old III. What was the effect of the Law of 1804? 1. Not to change the cestuis que trust. That it could not do. 2. Not to expound the words of the deed so as to do this. That is not legislation. The Legislature cannot explain words in a deed. the contrary it intensified its force. this it had the right and power to do. IV. What was the effect of the Act of 1848? the ground which it had taken for its own use It was in aid of the City to protect part of and profit. The City proposed to the Legislature to protect, preserve and maintain these grounds in consideration of profits arising from part of the land which it had taken and in consideration of which promise the Legislature gave them a clear title to such portion, and a contract was thus formed which the City is | by information, at the relation of Henry Connow estopped to deny. V. What effect had the Law of 1886 upon this trust? None, because, 1. It refers to cases where there is a holding of lands by the City, i.e., where they are the property of the City. 2. It refers to lands held by cities "for burial purposes," but the City never held this land for that purpose. It holds it now to protect and preserve decently that which is there. 3. The City does own a burial ground and it is affected by a trust to devote it to that use. Municipal Laws, p. 359. 4. The Act is void on its face. The trust referred to in such Act cannot be devested by the Legislature. 5. The Act is void as impairing the obligation of a contract, and as impairing vested right. 6. The Act is a private, local, and special Act. VI. No case can be found where a trustee is authorized by an Act to abrogate his trust and himself enjoy the proceeds. Mr. R. Wayne Parker, also for complainants: The right of sepulture is a vested right; the trust for that purpose is a charitable use. The monuments and the right to their present location belong to the heirs of the dead, and the kindred of the departed have a legal interest in the safety of their graves, which a court of equity will protect. gar and others, and by the relators as complainants, against the Mayor and Common Council of the City of Newark to establish a trust in certain land in Newark known as "The Old Burying Ground," and to restrain the defendant from removing from that land the remains of persons buried there and to compel the defendant to keep and maintain the ground in decent and proper order so as to protect the remains and memorials therein from desecration. The bill states that the relators and complainants are citizens of Newark and heirs and descendants of the old settlers of the Town of Newark; and they bring suit not only for themselves but also for the benefit of all such other citizens, heirs and descendants as may be made parties, and for the protection of the charitable use to which the burying ground was, as they allege, devoted. The bill states that on the 10th of December, 1696, shortly after the settlement of the Town, the proprietors of the Province of East New Jersey, in pursuance of the concessions to actual settlers thereof theretofore made by them, granted to John Curtis, John Treat, Theophilus Pierson and Robert Young, of the Town of Newark, certain parcels of land in Newark for public use, among which was a tract including the land in question, which tract is described in the deed as "All that small tract therein allotted for the burying place, taking in the pond and meeting house, being seven chains in length and four in width, bounded west by John Treat, south by John Johnston, north and east by highways;" that as to that land the We have in this case a charitable use for the burial of the dead, recognized not only by the deed of 1696, but by the Acts of 1804 and 1848, the latter of which provides funds for the keep-grant was made and was in the deed declared ing of the burial grounds in repair. The Act of 1886, although general in its scope, was aimed at the conversion of this burial ground into a public market and is unconstitutional: 1, as a special Act, there being no other burial ground in the State embraced in its terms; 2, it is confined by its terms to cases where there is a special trust, and attempts to abrogate such trust and the contract on which it is founded. Dartmouth Coll. Case. The general Statute of 1886 does not repeal by implication the special Statute of 1848. Anderson v. Hill, 13 Vroom, 351; Sheridan v. Stevenson, 15 Vroom, 373. There is a special trust in this case. The land is in trust for use as for a burial place for the old settlers and their heirs. The relators and all descendants of the old settlers are such heirs, and have a fixed interest by the deed, as recognized by the statutes in these identical lands and the individual and separate graves. Of this no statute can deprive them. The monuments are by common law an heirloom, descending from ancestor to heir, and as to which they have an actual legal right. See 21 Am. Law Reg. 512; 16 Am. Law Reg. 155; Pierce v. Swan Pt. Cemetery, 10 R. I. 227: Wynkoop v. Wynkoop, 42 Pa. 293; Opening of Beekman St. 4 Bradf. (N. Y.) 503; Burn, Eccl. Law, 334, 530, 532. Mr. Joseph Coult, for defendant. Runyon, Chancellor, delivered the following opinion: This suit is brought by the Attorney-General, to be made to the grantees and their heirs, to the only proper use, benefit and behoof of the old settlers of the Town of Newark, their heirs and assigns forever, in common; and that it was also therein declared that the land was granted to be and remain for the use in the deed expressed and to be appropriated to no other use or uses whatever. The complainants allege that the greater part of that tract was then and thereafter used for and devoted to the use of a burial place for the people of the Town, those who settled the place, the old settlers, and their heirs and assigns, and that it has been reserved and kept for such purpose and has been known as "The Old Burying Ground," and that there have been buried in it from time to time deceased persons, people of the Town, old settlers and their heirs and descendants and that the memorials of such deceased persons have been erected there and that some of them still remain; that about the 15th of February, 1804, the Legislature of the State, for the purpose of vesting the legal estate in the property upon the same trust and to the same use upon and to which it had been granted, passed an Act by which it was recited that the inhabitants, the first settlers of Newark, on their first settlement, after purchasing all the lands lying within the bounds of the Town of the native Indians, proceeded to parcel them out among themselves and such settlers as thought proper at various times to settle in the Town according to the rules and regulations established by the first settlers respecting their admission, at the same time reserving certain portions of land in various parts of the Town for APR., public purposes; and that doubts having arisen | the uses to which it was originally devoted, as to the validity of the Indian title it was after- but that it has not only neglected its duty in wards thought advisable by the inhabitants of that behalf but now proposes to remove the the Town to take a grant from the proprietors remains from the ground and devote the land of East New Jersey, for the confirmation of to use as a public market for the sale of meat their rights to that public land; and that as the and vegetables, and to let it out for hire for inhabitants of the Town were not incorporated those purposes accordingly; and that its action and were incapable of taking a legal estate it in the manner is under an Act of the Legislawas thought advisable to take the grant in the ture passed in 1886, and obtained by the City names of certain trustees for the use of the in- itself, by which it was enacted that where land's habitants, which grant was accordingly taken held by the cities or municipalities of this State on the 10th of October, 1696, in the names of for burial purposes are or may be affected by John Curtis, John Treat, Theophilus Pierson any trust that they shall be devoted to that use and Robert Young, to have and to hold, to and in the judgment of the common council or them, their heirs and assigns forever, to the only other governing body the public good will be proper use, benefit and behoof of the old set- served by devoting such lands to other public tlers of the Town, their heirs and assigns for- uses, it shall and may be lawful in every such ever, in common (the lands) granted to be and case to use such lands for any public purpose remain to and for the several uses therein par- or use to which, in the judgment of the comticularly expressed and to be appropriated to no mon council or other governing body, they are other use or uses whatsoever; that the original best adapted; and that in case interments have trustees were all dead and the heir of the sur- at any time been made in such lands or any part vivor not known to be resident in Newark; and thereof, the common council or other governing that through the ignorance of those infant times body shall cause the remains so interred to be the use created in the grant, although really removed to some suitable and proper burial meant for the benefit of the inhabitants of the place, and make proper and reasonable provisTown of Newark and their successors, yet was ion therefor and for the protection thereof; and so inartificially expressed as to render it diffi- to that end may make such reasonable approcult for the then inhabitants of the Town, as in-priation of public moneys as may be necessary. corporated by law to assert their rights to the premises; by means whereof the lands con- that it is really a private, special and local law The bill attacks that Act, upon the ground tained in the grant and originally reserved by within the meaning of the Constitution, and althe first settlers for public purposes were ex-leges that there are no other cities or municiposed to encroachments and other injuries without a competent remedy therefor, either in law or equity; and it was thereby enacted that the trust estate vested in the trustees, their heirs and assigns forever, by the deed from the proprietors for the only proper use, benefit and behoof of the old settlers of the Town of Newark, their heirs and assigns forever, should thenceforth cease and be void, and that the estate so vested in those trustees, their heirs and assigns in May, 1666; that soon after they came they The answer states that the first settlers came forever, should be vested in the inhabitants of laid out the land of which they had taken posthe Township of Newark in the County of Es- session without leave or license, claiming it by sex as incorporated by law, and their successors occupation, and divided it among themselves forever; and that they were thereby vested with into what they called home lots; that in order the legal title thereto, as fully and absolutely as to secure a more perfect title, they bought the though they had been originally named in the land from the Indians and took from them three grant in the place of the original trustees; sav- conveyances therefor, one in 1666 and the ing the rights of bona fide purchasers without others in 1667; that in laying out the town site notice of the trust; provided that nothing in the they reserved streets, squares and public places Act should in any way extend to or affect the for the common benefit of the people of the parsonage lands described in the grant or such Town; that among the portions so allotted was parts of the burying ground as had been leased or the tract set apart for a church and burial place sold by the First Presbyterian Church in New- and that that was common property; that soon ark before the first of January then last, or the after the settlement the only building for religround upon which the market then stood.gious worship in the Town was built upon the And it was thereby further enacted that the estate vested by the Act in the inhabitants of the Township should be appropriated and forever remain to and for the several uses in the before mentioned original patent (the deed from the proprietors) expressed and for no other use or uses whatever. palities in this State, except the City of Newark, which hold land in trust for burial purposes; that no public notice was given, of the intention to apply for the Act, nor of the object of it; and that the passage of the Act was forbidden by the Constitution of this State, because of the want of such notice and because the Act vacates public grounds. property; and that in accordance with the original design of the settlers the bodies of all the settlers who died were there interred; and that the property was common to all the inhabitants, the meeting house for worship, and the burying ground for interment; that up to 1713 The bill further states that in 1836 the City democracy, in which all who lived in the setthe form of government of the Town was a pure was incorporated and thereupon by force of the tlement and were entitled to a vote were obliged laws of this State became subject to all the re- to participate; that in that year the tract then sponsibilities of the Township and succeeded known as the Town of Newark was by royal to the duties of the inhabitants of the Town- patent created a township by the name of the ship as trustees; that it thus obtained the legal title to the land in question and that it was its of the Township of Newark," and the govern"Trustees of the Freeholders and Inhabitants duty to protect and preserve the property toment was thenceforward to 1798 carried on un. 152 |