OF." nection with some collateral event, apply to the contingency happening as well after as before the death of testator. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1162-1164; Dec. Dig. § 538.*] 4. WILLS (8 625*) - CONSTRUCTION DEVISED. sons. It is the power, and consequently the 3. WILLS (§ 538*)-CONSTRUCTION "IN CASE danger that springs from the union of inWhere the context of the will is silent, the fluence of many minds and wills to bring words, "in case of," and similar expressions, reabout the result, that constitutes the criminal-ferring to the death of a prior legates in con ity of a conspiracy. Respecting the essential act in execution of the joint design required by the statute, we think that the registration is such a step in the assertion of the right to vote, and in the equipment of the person asserting the right, with the privilege of voting, that, where there is a design to vote fraudulently, then a fraudulent registration is an act taken in the execution of that purpose. It follows that the aiding and abetting in the false registration of W. B. was an overt act in carrying into execution the design to procure W. B. to vote at the following election. It is again objected that an election district is not a political division of the state of which the court will take judicial notice; that therefore the charge of a design to procure a person to vote in a certain numbered election district in a certain ward in a city is insufficient for want of certainty. Whether the court will take judicial notice of the location of an election district is a matter of evidence, and not of pleading, and we think that a description of the election district by number and ward was sufficiently certain, without setting out the boundaries of the district. ESTATE Testatrix, by the first paragraph of her will, gave her entire estate to her son and his wife. By the second paragraph she imposed on both the burden of supporting her infirm husband for life, and by the third declared that, in case the son should die before his wife, his widow should then become the owner of the property in common with her two children, with the added condition that, in case she remarried, the two children should become the owners of the entire estate. Held that, as to testatrix's real estate, the will created an estate in fee by the entirety in testatrix's son and his wife with limitation over by way of executory devise in the event of the son's death before his wife, irson's death, the estate by the entirety was derespective of the death of testatrix, and, at the feated by the happening of the contingency named, and the fee passed to the widow and her two children in equal shares; the fee in the widow's share being defeasible in case of her remarriage, in which event the entire estate passed to the children. [Ed. Note.-For other cases, see Wills, Cent. Dig. 88 1447-1450; Dec. Dig. § 625.*] Suit by Mary N. Fischer against George A. Fischer and another to quiet title to land. Judgment for defendants. It is again insisted that the indictment is multifarious, in that it charges a design having a multitude of objects to be accomplished. But this objection is answered by the opinion of Beasley, C. J., in Noyes v. State, 41 N. J. The bill is filed by complainant against her Law, 418. The requirements of an overt act two minor children to quiet the title to cerin no way modify the principle that the con- tain real estate which was owned by the federacy is a single act, and that it may in-grandmother of the two minors at the time clude in its purpose any number of particulars. Our consideration, therefore, of these and other points urged on behalf of the application, leads us to the conclusion that the application must be refused. (75 N. J. E. 74) FISCHER v. FISCHER et al. (Court of Chancery of New Jersey. Nov. 19, 1908.) 1. WILLS ($ 538*)-CONSTRUCTION "IN CASE OF HIS DEATH." Where there is a bequest to one and "in case of his death" to another, the expression "in case of his death" unexplained by the context refers to the event of death happening before the death of the testator. [Ed. Note.-For other cases, see Wills, Cent. Dig. 88 1162-1164; Dec. Dig. § 538.* For other definitions, see Words and Phrases, vol. 4, pp. 3468-3469.] 2. WILLS (§ 538*)-CONSTRUCTION "IN CASE OF HIS DEATH." An absolute bequest to a person, followed by the expression "in case of his death," cannot be construed to mean "at his death" or "from his death"; the element of contingency being absent in that case, as no proper force could then be given to the expression, "in case of." [Ed. Note. For other cases, see Wills, Cent. Dig. 1162-1164; Dec. Dig. § 538.*] of her decease and disposed of by her will. In effect, the bill is to procure a construction of the provisions of that will touching certain real estate therein referred to. The will of Kunigunde Fischer (the mother of the father of the two defendant minor children, and the mother of the husband of complainant) provided as follows: "First, after my lawful debts are paid I give and bequeath and devise all my real estate being my house known as 'number (108) one hundred and eight Monroe Street' in the city of Hoboken, county of Hudson, and state of New Jersey as well as, all my personal estate, goods and chattels of whatever nature and kind soever to my beloved son Otto A. Fischer and his wife Mary N. Fischer and their heirs and assigns forever. "Second, my dear husband Charles August Fischer who had been and is now in feeble health and will be taken care of by my son and his wife so that they have to care for all his necessities and wants and will receive from them as pocket money four (4) dollars cash every month during his lifetime. "Third. In case my son Otto August Fischer should die before his wife it is my will that as long as his wife Mary N. Fischer does not remarry and will be his widow, that in | application of the rule should therefore be this case she becomes the heir to the property considered in this case. with her two children Anna and George, otherwise the property has to go to these two children alone as their inheritance from their grandmother." Conceding the rule of construction referred to as applicable to the same extent in devises of real estate as in bequests of personal property, I am unable to reach the conclusion that the contingency of the death of Otto referred to by testatrix was intended by her to relate to the death of Otto only in the event of the death of Otto occurring before the death of testatrix. Where a bequest is made to one person with a gift over in case of his death, courts have uniformly held that the expression "in case of his death" must be understood to mean in case of his death before the death of testator, or in case of his death before distribution where a period The will bears date March 13, 1901. Kunigunde Fischer, testatrix, died April 12, 1901. Charles August Fischer, the husband of testatrix named in the second paragraph of the will, died November 8, 1901. Otto Fischer, the son, died April 15, 1906. Mary N. Fischer, the son's wife named in the will, and the two minor children Anna and George, grandchildren of testatrix, are still alive, and Mary N. Fischer (complainant) has not remarried. The bill is filed by Mary N. Fischer, widow of the son, against her two minor children of distribution may be said to be contemplatAnna and George. It is contended in behalf of complainant that upon the death of testatrix an estate by the entirety vested in the son Otto A. and complainant, and that, upon the death of Otto A., an absolute estate became vested in complainant, and that the two minor grandchildren of testatrix in consequence take nothing under the will. William S. Stuhr, for complainant. Sam uel A. Besson, for defendants. LEAMING, V. C. (after stating the facts as above). It will be observed that testatrix by the first paragraph of her will devises an absolute estate to her son Otto and his wife. By the third paragraph two successive contingencies are introduced to the effect, first, that, if the son Otto dies before his wife, the property shall go to the wife and the two grandchildren; and, second, if the wife thereafter remarries, the property shall go wholly to the two grandchildren. The question is therefore presented whether the death of Otto before his wife is a contingency which testatrix intended to be operative only in the event of the contingency occurring before the death of testatrix, or as a contingency to be equally operative in the event of the contingency happening after the death of testatrix. As the contingency did not occur until after the death of testatrix, her intention in the respect named must be ascertained. The provisions of the will which are to be here construed relate to both the real and personal property of testatrix; and the contention in behalf of complainant is that the gift falls within the well-recognized rule of construction that, where there is a bequest to one person and "in case of his death" to another person, the expression "in case of his death," unexplained by the context of the will, will be understood as referring to the event of death happening before the death of testator. While the rule of construction | referred to is in most cases applied to bequests of personal property, the same rule has by some authorities been applied to de ed. But the reason of that rule is apparent and well understood; and, as is the case with any general rule, it is difficult to find justification for its retention when the reason for its application disappears. The expression "in case of his death" imports a contingency in the mind of testator, and yet death is not a contingency, but, on the contrary, is the most certain of all events. Hence an absolute bequest to a person followed by the expression "in case of his death" cannot be understood to mean "at his death" or "from his death," because in that case the element of contingency is absent and no proper force is given to the expression "in case of." To give full meaning to the words "in case of," something that is a real contingency must be understood to have been in the mind of testator. So, in order to give entire force to the expression, it is necessary to connect with the death of the legatee some circumstance which is not certain but which is contingent. That circumstance is necessarily the contingency of the death of testator before the death of the devisee. Such expressions are therefore understood to mean the contingency of death of the legatee before the death of the testator. The tendency of courts to favor the vesting of estates is also thought to have had an influence in establishing the rule of construction referred to. But it seems manifest that, where death is referred to in connection with some collateral event which is in itself a pure contingency, the reason for the rule is absent, so far as it seeks to determine testator's intent by giving force to all expressions of the will. In the will now under consideration the contingency referred to is as follows: "In case my son Otto Augustus Fischer should die before his wife." This is a pure contingency, and I am aware of no logical reason that can be found for adding to this contingency the additional contingency that Otto shall also die before testatrix, if the intention of testatrix is to be sought by giving appropriate force to all of the provisions of her will. In consequence, in 2 Jarman on sibility of a second marriage of her daughterin-law to the detriment of her children by the son of testatrix. If this purpose of testatrix can be discerned, it seems manifest that this contingency is one which cannot be itancy, it is stated, defined a second rule as follows: "The general rule is that, where the context is silent, the words (in case of and similar expressions) referring to the death of the prior legatee, in connection with some collateral event, apply to the contin- | assumed to have been intended to be guardgency happening as well after as before the death of the testator." The following cases which are reviewed by the author sustain the rule as it is there defined: Allen v. Farthing, 2 Mad. 310; Child v. Gilbert, 3 My. & K. 71; Smith v. Stewart, 4 De G. & S. 253. I am aware that the rule last referred to fails to find entire recognition in many adjudicated cases. These cases in the main relate, so far as I have examined them, to bequests over in case of the death of the first legatee without issue. In such cases the event of death without issue does not appear to be uniformly treated as a collateral event, and an absolute estate is held to vest in the first legatee if alive at the time of distribution. But I find it unnecessary to base my conclusions upon the rule above quoted from the text of Jarman on Wills. All authorities appear to agree that, where the context of the will discloses any manifestation of an intent upon the part of testator to refer to death subsequent to testator's death, such manifestation of intent will be recognized and regarded as controlling, even though such manifestation of intent may be but slight. The English cases to that effect are reviewed and followed by Chancellor McGill in Burdge v. Walling, 45 N. J. Eq. 10, 16 Atl. 51. I find in the subject-matter of the present will evidences of the intention of testatrix to limit the estate of her son Otto in the event named, irrespective of whether his death occurred before or after her death. By the first paragraph of the will the entire estate of testatrix is given to her son Otto and his wife absolutely. By the second paragraph the will imposes upon both the son and wife the burden of supporting the infirm husband of testatrix during his life, and paying him $4 per month during that period. The third paragraph contemplates the contingency, now in question, of the death of the son, and provides, in substance, that, in case the son should die before his wife, his widow (complainant herein) should then become owner of the property in common with her two children, grandchildren of testatrix, with the condition added that, in the event of her (complainant) remarrying, then the two grandchildren of testatrix should become owners of the entire estate. This provision, designed to defeat the estate of complainant, and to secure to the grandchildren of testatrix the entire estate in the event of the remarriage of complainant, is one so usual that its purpose can scarcely be mistaken. It seems manifest that testatrix entertained a defined purpose to guard against the pos ed against only in the event of the death of the son before the death of testatrix. It will be observed, also, that the second paragraph of the will enjoins both the son Otto and his wife to care for the enfeebled husband of testatrix during his lifetime, and to pay to him a weekly stipend. This also indicates that testatrix had in mind the death of her son after her death, at least so far as the provisions of that paragraph of the will are concerned; for the necessity of support and the provisions of the will touching support, which are directed alike to the son and daughterin-law, could only become operative at the death of testatrix. Touching the real estate in question, I think it entirely clear that the will created an estate in fee by the entirety (Den v. Hardenbergh, 10 N. J. Law, 42, 18 Am. Dec. 371) in Otto and his wife, with limitation over by way of executory devise in the event of the death of Otto before his wife, irrespective of whether Otto's death occurred before or after the death of testatrix. At the death of Otto, the estate by the entirety was defeated by the happening of the contingency named, and the fee passed to complainant and her two children in equal shares, with the fee of complainant in her share made again defeasible in the event of her remarriage, in which latter event the whole estate will pass to the two children absolutely. This appears to be in accordance with the manifest intent of testatrix, and I find no rule of construc tion or principle of law touching the disposition of real estate by devise inconsistent with the creation of the estates above defined. LAWTON v. BEDELL et al. (Court of Chancery of New Jersey. Oct. 24, 1908.) 1. CORPORATIONS (§ 155*)-FRAUD ON STOCKSETTING ASIDE WORKING CAP HOLDERS ITAL. Evidence, in a suit to require the declaring of a dividend by a corporation, held to show that a resolution of two of the three directors, setting aside all its earnings, and more, as a working capital, was a frand on the only other stockholder, the third director. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 561, 567; Dec. Dig. § 155.*] 2. CORPORATIONS (§ 155*)—FRAUD ON STOCK HOLDERS-DIVIDENDS-REMEDIES. Where two of the three directors of a cor poration, one a nominal stockholder only, by resolution set aside all its earnings as a working capital, in fraud of the only other stockholder, the third director, they at his suit will be required to declare a dividend of all the net earnings not needed for the legitimate purposes | Mr. Lawton to see that the business was of the company's business. brought in, and, in fact, he says so, and [Ed. Note. For other cases, see Corporations, boasts of his failure to do so, because he says Cent. Dig. §§ 561, 567; Dec. Dig. § 155.*] that during the existence of the company he 3. CORPORATIONS (§ 308*)-SALARIES-Fraud. B. owned 20 shares of stock of a corpora- brought in pretty nearly $80,000 worth of busition, and L. owned the remaining 12. One of ness. While there is no testimony that there B.'s shares was put in the name of his sister to were disagreements between the two princiqualify her as a director, and she and B., aspal owners, I take it that the feeling between directors, took from L. the office of president, and discharged him from the company's employ, though he had brought it most of its business; the reason given being that it was to reduce expenses. There was, however, no other reduction of expenses, and in addition to setting aside all the prior earnings as a working capital, they increased B.'s salary, though enough business to even pay this was not done thereafter. Held, that B. was not entitled to the full amount of such salary as against L. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 1340-1342; Dec. Dig. § 308.*] 4. CORPORATIONS (§ 181*)-DIRECTORS-ACCESS TO BOOKS. A director of a corporation is entitled to access to all its books. [Ed. Note.-For other cases, see Corporations, Cent. Dig. 8 674; Dec. Dig. § 181.*] Suit by Lawton against Clinton W. Bedell and another. Decree for complainant. Anderson Price, for complainant. William T. Carter, Jr., for defendants. HOWELL, V. C. (orally). This corporation, by name Lawton, Bedell & Co., was organized under the general corporation laws of New Jersey in the month of October, 1905, with a capital of $3,100, all of which I understand was paid up in some way or other; but concerning that there is no question in this case. The charter contains in its sixth paragraph a provision that the board of directors shall have power, without the assent or vote of the stockholders, among other things, to fix the amount to be reserved as a working capital. The cause of action in this case will turn very largely upon that paragraph. them was not very cordial. Mr. Lawton, the poration. Now the culmination of all this The corporation began business at the time of its organization. During the first year it made a very small amount of money, $40, as one of the witnesses testifies. But during the second year, and during the third year, it made considerable profits, so that at the end of the third year, or say in the month of March, 1908, it had a surplus which was considerably larger than its capital, possibly twice as large. I think the complainant insists that it was about three times as large; but, at any rate it was a substantial surplus, and consisted very largely of cash in bank. About six months before March, and before the events that happened in March, 1908, Mr. Lawton, the complainant, became dissatisfied with his position in the corporation, and desired either to buy or sell, and made such a proposition to Mr. Bedell. In the meantime, and during the whole of that six months, very little business came in, and, as I take it from the testimony, it was up to are not needed for the legitimate purposes of the company's business. Mr. Justice Garrison says further: "And in order that the matter may remain under the scrutiny of the court, the decree directing the defendants to account and elect as to salary or commissions should be supplemented by requiring them to declare such reasonable dividends, and to do so from time to time as the financial status of the business may warrant, with leave to the complainant to apply to the Court of Chancery for relief in the premises if it be necessary for him so to do." The decree then will be in accordance with the declaration in that opinion. Now one other thing. The question of salaries ought to be dealt with in this same case. It appears that Mr. Bedell, after turning out Mr. Lawton, raised his own salary to $40 per week, so that during the weeks that have elapsed since the 30th day of March he has drawn the sum of $1,200 in cash from the surplus of the company, because according to his own statement, the profits which he says could be made out of the two contracts that the company was engaged in executing, and which amounted to say $3,000— and there was talk of a little larger sum than that also-would be 10 to 15 per cent. Under those circumstances I do not think that Mr. Bedell has any right, under the case in New Jersey, to take any such sum of money as that. He voted it to himself; he was the director who was in charge; he was the 20share man, 1 share standing in the name of his sister. That hardly needs a citation of cases, but I will call your attention to the old case of Gardner v. Butler, 30 N. J. Eq. 702, on that point, which has been followed down to the present time, and the case of Hayes v. Pierson, 65 N. J. Eq. 353, 45 Atl. 1091, 58 Atl. 728, which is quite a recent case, in which the stockholders unanimously agreed and disadvantage of Mr. Lawton. Now with | clare a dividend of all the net earnings that this large surplus in cash on the 30th day of March, the board of directors-that is, Mr. Bedell and Miss Bedell-by a vote of two to one, vote not to pay any dividends until the month of January, I think it was 1909. They likewise vote a resolution setting apart $10,000 as a working capital. Now they did not have $10,000 in the treasury to set apart, to start with; and, in the second place, there was no business in sight which required any such sum of money. As I said during the course of the hearing, the mere passage of the resolution to make it $10,000 did not give them any greater faculties or any greater facility for taking on business than they had before, because they had to take on business in order to make money up to $10,000. They could not get it until they took on business and transacted the business and made profits out of it. So I think that the attempt to set aside the $10,000 as a working capital is a clear fraud, and done for the purpose of tying up the surplus of this corporation in the hands of the treasurer so that it would not be possible for Mr. Lawton to get any dividends out of it. The case strikes me very much like the case of Laurel Springs v. Fougeray, 50 N. J. 756, 26 Atl. 886, in the Court of Appeals. In that case there were three men who formed a corporation, and they were equal stockholders, and two of them combined to defraud the third. Here there are three people, although only two having interests, and one of them, the creature of Mr. Bedell, who is not interested in the company at all to any beneficial or considerable amount, but who is a mere factotum, joins with him for the purpose of putting down the other one. It is really one against one. It is really 20 against 12-20 shares against 12 shares. Now no court would stand that kind of a transaction, and I am going to follow the direction of the Court of Appeals in the case of the Laurel Springs Land Com-upon a salary of $4,000 for the president of pany v. Fougeray, 50 N. J. Eq. 756, 26 Atl. 886. Mr. Justice Garrison wrote that opinion, and he says: "Generally, suits to compel the declaration of dividends must be in the name of the corporation, but where the corporation is a defendant, and the majority of directors are parties charged with frauds in this very respect, the suit will proceed to a decree upon the complainant's rights. In the present case the prayer of the complainant should be met by a decree requiring the defendant, as directors, to declare a dividend of all the net earnings not needed for the legitimate purposes of the company's business." Now the duty of the board of directors under that is to come together and de the corporation, all done in good faith, too, at the time, and the corporation failed inside of a year and a half. The president of the corporation was required to give up the $4,000 for a good share of that time. There is one other badge of fraud that I ought to speak of, and that is the denial of Mr. Bedell to Mr. Lawton of access to the books. Undoubtedly, as a director of this corporation, he has the right of access to all of the books of the corporation, because as director he was charged with the duty of knowing what was going on. He could not know what was going on unless he could see the books. I think that disposes of the case. |