power conferred upon her by the fifth paragraph of the will of Henry Day. Although she has combined therewith a testamentary disposition of property which was her own, and a disposition by way of appointment under power conferred by the will of her mother, I think such a combination can in no way affect her testamentary action as an appointment under the fifth paragraph of Henry Day's will, if we can find therein a compliance with the requirement of that paragraph.

This compels the determination of the intent of Henry Day as expressed by the fifth paragraph of his will. He was the donor of the power to appoint or direct a division of the fund, and we must look to the language of his grant for the extent of the power conferred, and the limitations, if any, which he imposed on its exercise. The first question suggested is whether the operative words conferring the power, viz., "as my said wife shall direct by any last will," etc., relate to and qualify the division of the fund among testator's lawful issue, or only those words which immediately precede and which provide for the payment of the sums into which the fund is to be divided to such issue, or to trustees for their use respectively. The qualifying words are added to a single sentence. Testator did not require his trustees of this fund to divide it among his lawful issue, and to pay the sums into which they divided it to each of his lawful issue, or to trustees to his or her use as his wife should direct. But he required them to divide the fund among his lawful issue, or to trustees for their use, as his wife should direct. In my judgment, he thereby conferred on her a power to direct what division should be made, and to whom the division was to be paid. Nor am I able to discover any ground for the contention that the power conferred by the paragraph was in the alternative, so that, if the widow di-. rected, by her will, a division of the fund, she was without power to direct that the sums into which the fund should be divided should be, or some one of them should be, paid to trustees. On the contrary, the language, in my judgment, expresses an intent to confer power to direct a division, and also to direct the payment of the individual sums either to the person selected or to trustees for their

use.

When this cause was first argued, the guardian ad litem of the infant defendant (who is a grandchild of Henry Day, whose mother is yet living) urged (1) that by the words "lawful issue" in the fifth paragraph of his will Henry Day must be considered to have intended to include his grandchildren as well as his children, and (2) that, if such was his expressed intent, the appointment attempted to be made by the will of his widow was ineffective and invalid, and because of the default of a will making the required appointment the bequest over took effect. No such contention was made by counsel for the

adult grandchildren, nor was the question discussed in the able arguments submitted by the counsel for the other parties. When I took up the will for consideration I was greatly impressed by the fact that Henry Day, who was a lawyer of great reputation, in framing the sixth paragraph of his will, and providing for the disposition of the fund thereby created, in certain eventualities, to the lawful issue of his children or of himself, had taken care to express that such issue should take per stirpes, and not per capita. Such a disposition, it cannot be doubted, would have excluded from any benefit thereunder the descendants of any living stirps. When the testator, in framing the fifth paragraph of his will, made a disposition of the fund thereby created, upon the death of his wife, to his "lawful issue," without any qualifying phrase, the omission seemed to me to be so significant in respect to his intent as to justify me in requiring a reargument, and I have had the benefit thereof.

The question thus presented is whether Henry Day intended by the words "my lawful issue," as used in the fifth paragraph, to include all his lineal descendants living at the time the will took effect or at the time the power was to be exercised, or only his children then living, or his children then living and the representatives of any deceased child. The word "issue," in its ordinary legal meaning, embraces grandchildren and remoter descendants, as well as children. When used in deeds, it has been adjudged to have a technical sense to that effect. Weehawken Ferry Co. v. Sisson, 17 N. J. Eq. 475. But when used in a will a more restricted meaning may be attributed if, from the terms of the testamentary disposition, it clearly appears that the testator used the word in a particular meaning less general than its ordinary meaning. 2 Williams, Ex'rs, 953; Sibley v. Perry, 7 Ves. 531; Leigh v. Norbury, 13 Ves. 340; Dalsell v. Welch, 2 Sim. 320; Emans v. Emans, 3 N. J. Law, 968; Den v. Schenck, 8 N. J. Law, 39; Ballentine v. De Camp, 39 N. J. Eq. 87. To properly pursue this inquiry, it is obvious that we must start with the assumption that the testator used the word in its ordinary signification. We must then examine the whole will, and we will not be able to attribute to the word a more restricted meaning unless we find in the will itself clear indication that the testator used it in this case in such restricted meaning. It is argued that by the word "issue" the testator could not have intended to include his grandchildren as beneficiaries under the appointment of his widow, because by this paragraph he provided that on failure to appoint the fund is immediately to go to trustees under the sixth paragraph, whereby the grandchildren will not obtain an immediate, but only a remote and precarious, interest. But this reasoning is founded not on any expression of the testator, but rather

upon our judgment of what would have been expressed by him if he had intended to include grandchildren under the word "issue." It is by no means clear that, if such was his intent, he did not consider the provision made on failure of appointment, whereby the grandchildren might attain a future interest in the fund, a sufficient and satisfactory benefit to them. If we are to draw an inference that testator intended to restrict the meaning of the word "issue" in this paragraph, it cannot be an accepted inference, unless the degree of restriction is expressed thereby. The inference sought to be drawn from the omission of the grandchildren from some immediate benefit on failure of appointment leaves the degree of restriction wholly undisclosed. Whether only children of testator living at the death of the donee of the power, or such children and the issue of deceased children, are objects of the power, is left to mere conjecture. The latter conjecture is forbidden by the comparison of the provision whereby testator has made stirpital disposition, with the provision which is without qualification. The former conjecture assumes, without any supporting ground, that testator intended that his grandchildren should take no interest in the fund created by paragraph 5, even if their parent was dead before the power of appointment was exercised. Upon consideration of the whole will I am unable to discover in it any reason for attributing to the word "issue" in the fifth paragraph any restricted meaning. It therefore includes testator's grandchildren, although children of a living child.

That the power of division conferred on testator's widow by paragraph 5 was not exclusive-i. e., did not permit her to exclude from such division any of the objects of the appointment-was not contested by any of the counsel. The doctrine of exclusion, and the instances in which it is applicable, need not be here discussed. See Sugden on Powers, c. 7, § 6; Chance on Powers, pp. 1013, 1055, et seq. As the grandchildren were wholly excluded and appointed to no substantial part of the fund, the question so much discussed elsewhere respecting what are termed "illusory appointments" do not require attention. Sugden, Powers, c. 7, 8 6, appendix No. 19; Chance, Powers, pp. 1108, 1115. The construction given to paragraph 5 makes it include as objects of the appointment thereby conferred on Mrs. Day the three living children of testator and the five then living children of Mrs. McCormick. But Mrs. Day, by her will, in attempting to exercise the power conferred, ignores the grandchildren, and excludes them from any benefit. It is settled in this court that such an exclusion makes the execution of the power invalid. In Lippincott v. Ridgway, 10 N. J. Eq. 164, Chancellor Williamson dealt with a will whereby the testator conferred power upon a daughter to appoint a trust fund, under circumstances which came into existence,

to such of her brothers and sisters and their children and in such proportions as the daughter, by her will, should direct and appoint. This language, if standing alone and unexplained, conferred upon the daughter a discretion to select among the persons named. But it was followed by language explaining that testator's will was that the daughter should have power to dispose of the fund among the brothers and sisters and their children in such proportions as she should think fit. This explanatory clause was held by the learned chancellor to limit the powers conferred so that each of the brothers and sisters was entitled to a portion of the fund. It appearing that the daughter, by her will, had excluded a sister, and had appointed the fund to a child of a sister who had deceased, the conclusion was reached that there had been no valid execution of the power conferred, and that the gift over took effect. In Wright v. Wright, 41 N. J. Eq. 382, 4 Atl. 855, Chancellor Runyon dealt with the will of a husband giving all his property real and personal to his wife, with power to dispose of the same in any manner she should think proper during her lifetime, and providing that at her death she might by will dispose of the same among his children and grandchildren as she should think proper. The learned chancellor held that the wife took only a life interest, with power of testamentary disposition among testator's children and grandchildren, but without power to exclude any of them. It was concluded that a will of the wife which excluded one of the grandchildren from any share was an invalid appointment under the power conferred.

It being determined that the gift over took effect, the next question is, to whom must the trustees account for the fund which was created by the fifth paragraph of Henry Day's will? The gift over is expressed in the following language, viz.: "In default of any such will [of Mrs. Day] I give the same [the fund] to the same persons who shall then be entitled to the other undivided half of the said residuary mentioned in the next clause of this will [i. e., the sixth paragraph] to be divided in the same proportions and held upon the same trusts and with like powers as are therein mentioned." At the death of Mrs. Day the fund created under paragraph 6 was in the hands of trustees for the benefit of the three children, Mrs. Parker, Mrs. McCormick, and George Lord Day. All were then living, and by the gift over under the fifth paragraph the one-half of the residuary estate therein disposed of was vested in the trustees for the benefit of those three children, to each one a third thereof. As Mrs. Parker and Mrs. McCormick are still living, their shares must be held by the trustees for each of them respectively, to be disposed of at their deaths under the powers and with the restrictions named in the sixth paragraph. A different and more difficult question arises with respect to the one-third of this fund which, at Mrs.

Day's death, the trustees were to hold for the benefit of George Lord Day. He has since died, leaving a widow, but no children. He died testate, and by his last will made a disposition of property in the following language: "All other property of which I shall be seized or possessed at the time of my death, whether such property be real or personal, and whether it shall be mine in absolute ownership, or held in trust for my benefit by trustees under the will of my father or my mother, with powers granted to me to dispose thereof by my will, I give (intending hereby to exercise the said powers of disposition by my will) to my executors hereinafter named (acting as trustees) to have and to hold, unto them, their successor or successors upon the following trusts, viz.: To invest the same and keep the same invested, as a trust fund, and to hold the capital of said trust fund during the life of my wife, Adele Mittant Day, and to pay over to her the net income thereof (after deduction of all necessary and proper expenses of said trust) in equal quarterly or semi-annual payments, according as my said wife shall desire; and upon the death of my said wife, to pay over the capital of said trust fund, in equal shares, to any child or children of mine, and any child or children of any deceased child or children of mine, who shall be living at the decease of my said wife, such children and grandchildren to take per stirpes and not per capita; and if but one child of mine and no grandchildren, or but one grandchild and no children shall survive my said wife, then upon the death of my said wife, to pay over the entire capital of said trust fund to such child or grandchild. Should no child or children, grandchild or grandchildren of mine survive my said wife, then upon the death of my said wife I give the entire capital of said trust fund to the issue, then living, of my father Henry Day, such issue to take per stirpes and not per capita." In the case of McCook v. Mumby, ubi supra, it was held that George Lord Day thereby exercised such power as had been conferred upon him by the sixth paragraph of the will of Henry Day, with respect to a part of the fund created by that paragraph. No consideration was then required or given to the power conferred with respect to the fund created under the fifth paragraph, which is now under consideration. Upon failure of appointment the fund under that paragraph was to be held by trustees upon the trusts created by the sixth paragraph. With respect to the share of George Lord Day in the fund created by the sixth paragraph, it was then held that power was conferred upon him to appoint, in case of his death without children, $150,000 of the fund to any person he should see fit, and that by his will directing the property which he had power to dispose of under his father's will to be held in trust for his wife, Adele Mittant Day, during her life, and at her death, if there were then no children or grandchildren

of his living, the whole fund to go to the issue of Henry Day then living, such issue to take per stirpes, and not per capita, he exercised the power of appointment validly and effectually as to the $150,000 over which his power extended as to persons not his father's issue, by the provisions for the use by his wife for life, and as to that sum after her death, by the appointment thereof to his father's issue, which was also within the power conferred upon him. By the failure of appointment by Mrs. Day as to the fund created by the fifth paragraph and the consequent gift over, that fund is to go to trustees for the persons named in the sixth paragraph. It is expressly directed to be distributed in the same proportions, and to be held upon the same trusts, and with like powers, as are mentioned in the sixth paragraph. Therefore, upon the death of Mrs. Day without having made a valid disposition by way of appointment of the fund created by the fifth paragraph, it became the duty of Henry Day's executors to divide that fund into three equal shares, one for each of his children then living, viz., Mrs. Parker, Mrs. McCormick, and George Lord Day, and to pay over each of such shares to the trustees respectively appointed by Henry Day's will and codicils for each of said children. Those trustees were to hold such shares upon the trusts set forth in the sixth paragraph. As Mrs. Parker and Mrs. McCormick are still living, their respective shares are to be held by their respective trustees upon those trusts. George Lord Day has died, but leaving a will disclosing an intent to thereby appoint whatever he was empowered to appoint by Henry Day's will to trustees to the use of his wife for life. By the sixth paragraph, he was endowed with power to appoint, in default of issue, $150,000 to any person he should see fit. This has been already held to empower him to appoint to the use of his wife for life $150,000 out of the fund arising under the sixth paragraph. As the fund arising under the fifth paragraph is to go upon the same trusts with like powers, it follows that he had a power of appointment as to $150,000 of that fund, and to that extent his will has executed that power. But he also had power to appoint to his own or his father's issue, and his will has executed that power as to the $150,000 after his wife's death. It follows that $150,000 out of the fund created by the fifth paragraph is to be paid to trustees appointed by his will, and to be held by them on the trusts therein created; and the remainder of the share is to be paid to Mrs. Parker and Mrs. McCormick, Henry Day's lawful issue taking per stirpes.

There are two questions remaining to be considered. The first is as to the effect to be given to an instrument alleged to have been executed by Mrs. Parker and Mrs. McCormick, and which is set up by the answer and cross-bill of Mrs. Mills, the widow of George Lord Day. As has been stated, the funds created by both the fifth and sixth para

graphs, after the death of Mrs. Day, and in default of her making an appointment within the power conferred on her by the fifth paragraph, are held by the trustees under the will and codicils of Henry Day upon the trusts declared in the sixth paragraph. One-third thereof was held for George Lord Day for life, with power of appointment to the extent of $150,000 out of each fund, which power he executed by his will in favor of his wife for life, and at her death in favor of the lawful issue of his father, Henry Day, living at his wife's death. The share of George Lord Day in excess of his appointment went, at his death, to the lawful issue of Henry Day then living per stirpes, and not per capita. At the death of George Lord Day, Mrs. Parker and Mrs. McCormick were then the surviving children of Henry Day. Each was a stirps, or root. If either had then died leaving children, lawful issue of Henry Day, those children would have represented the deceased, and taken the share of the excess which the deceased would have taken if living. But as both children survived George, each took a share of the excess absolutely. What each thus acquired she could dispose of as she saw fit.

The cross-bill of Mrs. Mills has appended to it an instrument alleged to transfer the interest which Mrs. Parker and Mrs. McCormick thus acquired in the share of George Lord Day, unappointed by him to trustees for the use of Mrs. Mills for her life. She also appends to her cross-bill another instrument purporting to be executed by the children of Mrs. McCormick, and making a similar transfer for her benefit. The answers to this cross-bill fail to admit or deny the execution of these instruments. When the cause was brought to final hearing before me, counsel for Mrs. Mills produced and proved the execution of the first-mentioned of these two instruments. The other was not produced or proved. There was no exception to the answer to the cross-bill of Mrs. Mills for insufficiency in respect to the allegations respecting these instruments. No proofs were taken, in accord with the usual practice in this court. The proof offered at the hearing was objected to, and was taken subject to objection. Is that instrument, thus presented at the final hearing, admissible, and is it to be considered in the determination of this case? By section 45 of the chancery act of 1874 (Rev. St. 1874, p. 63) all examinations after a cause was at issue were to be taken before an examiner in chancery, except such examination as should be taken before a vice chancellor in an issue referred to him. By section 33 of the chancery act of 1902 (Laws 1902, p. 521) this exception was extended so as to exclude from the requirement to take examinations before an examiner such examinations as should be taken before the chancellor. By section 109 of the lastIcited act the chancellor was authorized to employ a stenographer when he should take

and hear evidence of witnesses orally. The plain purpose of this legislation was to enable the chancellor to adopt in any case the practice of hearing causes at issue by oral evidence, as the vice chancellors are expressly required to do. But it has never been interpreted, nor do I think it bears the meaning, that parties may come to a final hearing, and then require the chancellor, without any previous direction on his part, to hear evidence orally. When application for that purpose is made upon notice, he may direct such a mode of trial, but, without an application and direction thereon, evidence ought not to be received orally. Any other course would occasion surprise to the other parties. Under these circumstances, I think the objection made to the reception of this evidence required it to be dismissed from consideration. It may well be questioned besides whether the charge in the cross-bill of Mrs. Mills respecting these instruments called for an answer. They seem to be referred to solely as recognizing the power of disposition which the cross-bill claims had been conferred on George Lord Day. For these rea.sons no consideration has been given to the proof on this subject.

The only remaining question is to whom the surviving trustee under the will of Henry Day should account and pay over the trust funds in his hands. With respect to so much thereof as, under the construction given heretofore, is to be held in trust for Mrs. Parker and Mrs. McCormick for their lives respectively, no difficulty can arise. They are to be held by the respective trustees appointed by the codicils to the will of Henry Day, or such persons as now, by proper appointment, have been made trustees thereof. With respect to the excess of the share of George Lord Day arising under both paragraphs 5 and 6 over and above what he has appointed thereout, that is to be divided and paid over to Mrs. Parker and Mrs. McCormick respectively. The shares of the funds arising under both paragraphs which were put in trust for George Lord Day for life, with a limited power of appointment, which as to $150,000 out of each fund he exercised by creating a trust of those amounts in favor of his wife for life, and at her death, failing his own issue, in favor of the then living lawful issue of his father, Henry Day, are also to be paid over. It appears, and is conceded, that the trustees under Henry Day's will, of whom the complainant is the survivor, have not paid over the whole amount of the shares under paragraph 6 to the respective trustees thereof. George Lord Day being dead, if the unpaid balance of his share were now paid to his trustees it would be their duty to immediately pay over $150,000 out of the same, or so much thereof as is unpaid, to the trustees to whom the same was appointed by his will for the benefit of his wife for life. With respect to the fund created under para

graph 5, it is left uncertain whether that fund was ever segregated from the estate by the executors and trustees. If not, upon its being now done the surviving trustee would be under obligation to pay such share thereof as, under the construction heretofore declared, was given for the benefit of George Lord Day for life, to his trustees appointed under the codicils, and it would then be their duty to pay $150,000 out of the same to the trustees appointed by George Lord Day by his will. These successive trustees would be charged with no duty except that of paying over the funds to the trustees appointed by the will of George Lord Day. They might, however, be entitled to demand, and possibly to receive, commissions upon these funds. To adopt a circuitous course of payment through successive trustees might open a way to a demand to two or three successive commissions for services which, upon the construction given, would be merely perfunctory. Under such circumstances, and as all the successive trustees are parties to this suit, it is my judgment that the payment may be made directly to those now entitled to receive the same.

A decree embodying the conclusions above expressed will be made. Considering the many questions passed upon, I think the terms of the decree should be settled upon notice.

(65 N. J. E. 382)

GOLDSTEIN et al. v. CURTIS et ux. (Court of Errors and Appeals of New Jersey. April 8, 1903.)

CONVEYANCE OF LAND-SPECIFIC PERFORMANCE -JUDGMENTS COMPLIANCE CONVEYANCE BY MARRIED WOMAN-ACKNOWLEDGMENT.

1. Since, under Gen. St. p. 383, § 63, providing that a decree for a conveyance of real estate shall operate as such in case the party fails or refuses to comply with the decree, it was not essential that a conveyance made by a married woman, in pursuance of a mandate directing the same, should contain the statutory acknowledgment that it was executed freely.

Appeal from Court of Chancery.

Suit by Abraham J. Goldstein and others against Jeremiah Curtis and wife. From a decree in favor of complainants (52 Atl. 218), defendants appeal. Affirmed.

William R. Barrick lo, for appellants.

PER CURIAM. The complainants in the court below (the respondents here) filed their bill to compel the appellants, who are husband and wife, to specifically perform a contract under seal for the conveyance of lands, duly executed and acknowledged by each of them. The decree appealed from directed a specific performance. It should be affirmed, and for the reasons stated in the opinion delivered by Vice Chancellor Pitney, who advised it. We do not understand the learned vice chancellor to hold, as was contended by counsel for the appellants on the argument before us, nor is it the view of

this court, that the court of Chancery will, in enforcing a contract for the sale of lands made by a married woman, compel her to acknowledge that the conveyance made by her in pursuance of the mandate of the decree was signed, sealed, and delivered by her as her voluntary act and deed, and freely. As was said by the same learned jurist in his opinion delivered in the case of Fee V. Sharkey, 59 N. J. Eq. 292, 44 Atl. 673, afterward adopted as the opinion of this court (60 N. J. Eq. 446, 45 Atl. 1091), “it is not essential to the validity of a deed made by a married woman in pursuance of a decree of this court that she should make the statutory acknowledgment. In fact, it is not necessary that she should make any conveyance at all, for the decree for conveyance executes itself under the statute (Gen. St. p. 383, § 63; Chancery Act). The strength of the complainants' title does not rest in any deed of conveyance executed by the defendant, but in the declaration and decree of this court establishing his right in equity."

#

(68 N. J. E. 55)

BRADY v. CARTERET REALTY CO. (Court of Chancery of New Jersey. Jan. 10, 1905.)

SUIT TO QUIET-NEW TRIAL OF ISSUES-ADVERSE POSSESSION-INSTRUCTIONS.

1. Under the quiet title act, requiring an issue to be directed on application of a party, and declaring that the court shall be bound by the result thereof, but that it may, for sufficient reason, order a new trial thereof, application for a new trial of such an issue should be acted on according to the practice in actions at law on contested titles.

2. On the question of B.'s possession prior to expiration of a lease being adverse, it is immaterial whether the lease was to him, as the lease immediately preceding it had been, or whether it was to another, whose agent or subtenant he was.

3. The court, on an issue as to adverse possession, having_instructed that the sole question was whether B.'s proved possession was adverse, and that, if it was a mere holding over as a tenant, it would not be indicative of hostility without some proof of claim to ownership, properly directed attention to the evidence which might tend to evince that claim of hostile ownership necessary to sustain the issue.

Suit by Michael Brady against the Carteret Realty Company. Complainant moves for a new trial of an issue at law. Denied. For former opinion, see 57 Atl. 814. Willard P. Voorhees and Ephraim Cutter, for the motion. Gilbert Collins, opposed.

MAGIE, Ch. Whether a motion for a new trial of an issue directed by the court in a cause in which relief is sought under the provisions of the quiet title act is to be dealt with as are motions for new trials of issues directed by the court in causes arising under the general jurisdiction of the court of equity is a question raised by counsel moving for a new trial. Issues directed under the general jurisdiction of the Court of Chan