LEAMING, V. C. Knowles Loom Works v. Vacher, 57 N. J. Law, 490, 31 Atl. 306, 33 L. R. A. 305, affirmed in 59 N. J. Law, 586, 39 Atl. 1114, must be regarded as conclusive in this court to the effect that the statutory

language "mortgagees in good faith," as used in section 4 of our chattel mortgage act (P. L. 1902, p. 487), includes a mortgagee whose mortgage has been executed to secure a preexisting indebtedness.

A subsequent mortgagee in good faith is a mortgagee who receives his mortgage without knowledge of the existence of a prior mortgage. Graham Button Company v. Spielmann, 50 N. J. Eq. 120, 123, 24 Atl. 571, affirmed Spielmann v. Knowles, 50 N. J. Eq. 796, 27 Atl. 1033; Boice v. Conover, 54 N. J. Eq. 531, 538, 35 Atl. 402; Bank v. Sprague, 21 N. J. Eq. 530, 536. It follows that complainant's mortgage will receive the protection of the statute if complainant is a mortgagee who at the time of the execution of his mortgage had no knowledge of the existence of the prior recorded chattel mortgage which contained a false affidavit touching its consideration. I am unable to reach the conclusion that any constructive notice afforded by the record of such prior mortgage operates,

ment for prosecutors, and defendants bring error. Affirmed.

George S. Silzer, for plaintiffs in error. Adrian Lyon, for defendants in error.

REED, J. This writ brings up a judgment of the Supreme Court setting aside a resolution of the board of water commissioners of the city of Perth Amboy for the purchase of 32 acres of land for the sum of $15,500.

It is also insisted by the plaintiff in error that the provisions of the act of 1907 (page 633, 2) stood in the way of condemnation. The section mentioned enacts that "no municipal corporation shall have power to condemn land or water from any new or additional source of water supply until the water supply commission shall have approved same." It is to be observed, first, that this legislation was not in existence at the time the resolution to purchase this land was The Supreme Court held that the testimony passed, namely, on June 6, 1906. Secondly, showed that the price was unreasonable, as if it had existed, the duty would have been it could not have been reasonably apprehend-upon the board of water commissioners to ed that the fair market value of the tract apply for the approval of the plant as a was more than $1,000. There was abundant step preliminary to condemnation proceedtestimony to support this finding, and, the ings. Supreme Court having so found as a matter of fact, this court will not review it. Moran v. Jersey City, 58 N. J. Law, 653, 35 Atl. 950; Vreeland v. Bayonne, 60 N. J. Law, 168, 37 Atl. 737; Snyder v. Commercial Union As-power to condemn was for this reason absurance Co., 67 N. J. Law, 626, 52 Atl. 384; Lehigh & Wilkes-Barre Coal Co. v. Borough of Junction (N. J.) 68 Atl. 806, 15 L. R. A. (N. S.) 514.

Again, it is said there could have been no condemnation unless Perth Amboy had already acquired a plant; but Perth Amboy had a plant; but if it had none, and the

sent, that would annul the power to purchase as well as the power to condemn.

The judgment of the Supreme Court should be affirmed.

CAMPBELL, MORRELL & CO. v. LE-
HOCKY.

Nov. 16, 1908.)

1. APPEAL AND ERROR (§ 635*)—MATTERS TO BE SHOWN BY RECORD RETURN TO WBit of ERROR.

Where the printed case submitted with the briefs shows no return to the writ of error, the writ will be dismissed.

[Ed. Note.-For other cases, see Appeal and

The Supreme Court also observed that upon the board was conferred the power of condemnation to meet such a situation, and that the failure of the board to have recourse to condemnation proceedings in view of the excessive purchase price demanded was an un- (Court of Errors and Appeals of New Jersey. reasonable and improvident exercise of the power conferred upon the board. The counsel for the plaintiff in error denies that this power to condemn existed. He insists that the power to condemn contained in Act April 21, 1876 (P. L. p. 366), "To enable cities to supply the inhabitants thereof with pure and wholesome water" (1 Gen. St. 1895, p. 646, § 902), could not be employed by Perth Amboy because it was supplying water to South Amboy; while the power to condemn was only conferred for the purpose of supplying the inhabitants residing within the corporate limits of the condemning city. But the purpose for which the power to purchase and condemn was conferred could be enlarged by subsequent statutes, and was so enlarged by P. L. 1885, p. 267, and P. L. 1886, p. 272 (1 Gen. St. 1895, p. 655).

But aside from this, it is to be observed that the contention of the plaintiff in error, if sound, would strip Perth Amboy of the power to purchase the land and water in question; for power to purchase land and water rights stands upon the same footing as the power to condemn. With the exception that there must be an inability to agree as a condition precedent to condemnation, both rights cover the same subject-matter and exist upon the same condition.

Error, Cent. Dig. § 2781; Dec. Dig. § 635.*]

2. APPEAL AND ERROR (§ 635*)-MATTERS TO BE SHOWN BY RECORD TRANSCRIPT OF JUDGMENT.

Where the printed case does not contain a transcript of the judgment below, the writ of error will be dismissed.

[Ed. Note.-For other cases, sce Appeal and Error, Cent. Dig. § 2780; Dec. Dig. § 635.*] Error to Supreme Court.

Action by Campbell, Morrell & Co. against Joseph Lehocky. Judgment for plaintiff, and defendant brings error. Writ dismissed without prejudice.

William W. Watson and Robert R. Watson, for plaintiff in error. Henry C. Whitehead, for defendant in error.

PER CURIAM. The printed case submitted with the briefs herein shows no return to the writ of error, nor any transcript of the judgment below.

The writ of error will be dismissed with costs, but without prejudice.

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

(75 N. J. E. 205)

In re FROTHINGHAM'S WILL (Prerogative Court of New Jersey.

1908.)

1. WILLS (§ 173*)—CANCELLATION-ERASURES. Pencil erasures on the face of a will are as effectual to cancel the portion obliterated as if done with ink.

[Ed. Note. For other cases, see Wills, Dec. Dig. § 173.*]

2. WILLS (8 170*) — CANCELLATION

SURES.

ERAIn case of pencil erasures on the face of a will, the question is whether the erasures were intended to be the testator's final act, or whether they were dependent relative revocation, not final; intention with which the marks were made being the test.

[Ed. Note. For other cases, see Wills, Cent. Dig. § 441; Dec. Dig. § 170.*] 3. WILLS ( 306*)

SURES.

CANCELLATION

WALKER, Vice Ordinary. The Monmouth county orphans' court on May 29, 1907, made Dec. 18, an order admitting to probate the last will and testament of Howard P. Frothingham, late of the county of Monmouth, deceased, omitting from the probate thereof, however, the second, third, fourth, and fifth clauses of the will, through which lead pencil lines by way of erasure had been drawn by the testator and another in his presence and with his approbation, and which erasures, it was adjudged, were cancellations made by Mr. Frothingham animo revocandi. In the clauses of the will thus erased, and said to have been canceled with intent to revoke the parts of the testament obliterated, Mr. Frothingham made provisions as follows: (2) To his daughters, Lillian Low and Beatrice Maude Frothingham, each an annuity of $150 per month for life, and to his sister, Grace Bleecker MacSymon, and his brother, Meredith S. Frothingham, each an annuity of $100 per month for life, such annuities to be a charge against his residuary estate; (3) to his friend James P. Dodd his business of negotiating loans in New York City; (4) to his daughter Lillian Low a house and land in East Orange, together with the contents of the house; and (5) to his wife, Maud Le Grand Frothingham, a house and land in New York City; also a house and grounds at Deal Beach, Monmouth county, and the contents of the house; also his one-half inCANCEL-terest in a large tract of land located in the counties of Passaic and Bergen.

-

ERAThe presence of pencil marks on the draft of a new will, found in a drawer of testator's desk after his death, is prima facie evidence that the marks were made by him, and indicate that he was still in a state of dubiety as to the disposition of his property.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 731; Dec. Dig. § 306.*]

ERA

That certain gifts made by a testator are inoperative because of his altered circumstances cannot be urged as a reason for holding that erasures on his will were made animo revocandi. [Ed. Note. For other cases, see Wills, Dec. Dig. § 170.*]

5. WILLS (8 170*)-CANCELLATION LATION TO MAKE FRESH WILL.

If a will is shown to have been canceled for the purpose of making a fresh will, the original is not revoked if no fresh will is made.

[Ed. Note.-For other cases, see Wills, Dec. Dig. § 170.*]

6. WILLS (§ 82*) — VALIDITY of UnnaturAL WILL.

That a testator makes an unnatural will. or allows a will to stand which, by reason of changed circumstances, would be unnatural if made at the particular time, is not a reason for overthrowing it.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 203; Dec. Dig. § 82.*1 7. WILLS (8 168*) - REVOCATION

OF COMPLYING WITH STATUTES. Irrespective of intention testaments can only be revoked according to the formula prescribed by statute.

[Ed. Note.-For other cases, see Wills, Dec. Dig. 168.*]

Appeal from Orphans' Court, Monmouth County.

In the matter of the probate of the will of Howard P. Frothingham, deceased. The will was admitted to probate, and Meredith S. Frothingham and another appeal. Reversed McDermott & Fisk and Bigham & Wagner, for appellants Meredith S. Frothingham and Grace Bleecker MacSymon. Benjamin P. Morris and Edmund Wilson, for respond ents Maud Le Grand Frothingham, Beatrice Maude Frothingham, and James P. Dodd. Clinton E. Fisk, for respondent Lillian Low.

The pertinent facts concerning the cancellations referred to are these: James P. Dodd, the person to whom Mr. Frothingham in the third item of his will bequeathed his business, testified that he was employed by Mr. Frothingham at his office in New York; that, a week or so after the will had been executed, Mr. Frothingham brought it to the office to put in his safe, and it then had no pencil marks upon it. On a day in Decem

ber, 1906, Mr. Frothingham had a talk with the witness about his financial situation, and said to the witness that he had almost no estate left outside of what real estate he had, and that he thought he ought to change his will, because he had provided in it for annuities, and there was no money out of which to pay them, and he was worried about what would become of his wife. He wanted her to get all she could out of the estate which was very little, and he told the witness to call his attention to the matter the next day so he could get the will out of the safe and make the changes. The next day he himself asked for the will, and the witness got it out for him, and he made the pencil marks upon it in the presence of the witness, with the exception of the marks through the names of the witness and of John Olney and John J. Edwards, which marks were made by the witness in Mr.

extent of it, and its effect upon other uncan celed portions of the will may prevent the presumption of finality. Now, in the case under consideration, if it be conceded that omitting the parts of the will said to have been canceled does not render the remaining portions ambiguous (which is true assuming the testator meant to cancel the last line of the second item which is untouched by the pencil mark), the other tests as to finality, namely, the manner in which the erasures were made, and the extent of them, certainly make against the presumption of finality. Especially is this so when the acts of the testator are considered in conjunction with his dec

Frothingham's presence. The word "sold,"
written in lead pencil on the fifth item of
the will, was made by Mr. Frothingham, and
the tract so marked sold was in fact sold be-
tween the date of the will and the day of
the drawing the lead pencil mark to which
reference is made. The witness then asked
Mr. Frothingham if he wanted him to send
the will over to his lawyer, and he said:
"No; send it to the man who engrossed it,
and have him make a draft of it according
to the directions." This was done, and the
draft came back, and there was a clause in
it that did not suit Mr. Frothingham, and
he threw it aside, and put the old will in the
safe. The new draft he put in his desk. Onlarations.
the day before the changes were made, and
during the talk about them, he suggested
that, inasmuch as Mr. Frothingham thought
his family would get hardly anything out
of the estate, it would be a good thing to
let Mrs. Frothingham share in the business,
if he thought there was anything in it; and
they also talked about taking his son-in-law
in the office, and Mr. Frothingham asked the
witness' opinion upon the matter, and he
told him he thought it would be a very good
thing, inasmuch as Mr. Frothingham was go-
ing away for some time, and it probably
would be better to have some representative
of his family in the office, and he gave the
witness instructions to have the business go
to Mr. Low instead of to himself, as provid-
ed in the original will. Mr. Frothingham
said nothing about the business on the day
the changes were made. It was the day be-
fore when they had the long talk that the
instructions were given. In pursuance of
this conversation the witness, Mr. Dodd,
gave the draftsman instructions to substitute
the name of Mr. Low for himself in the will.
George J. Ennis testified that he was a
clerk for Mr. Frothingham, and was present
in his office in December, 1906, with Mr.
Frothingham and Mr. Dodd, and saw the
will on Mr. Frothingham's desk, and he saw
Mr. Frothingham make the pencil marks on
the will, and heard him say that he had
some changes to make.

The only other persons sworn were the subscribing witnesses to the will, who proved its due execution.

It is settled that pencil erasures made upon the face of a will are as effectual to cancel the portions obliterated as if done with ink. Hilyard v. Wood (N. J. Prerog.) 63 Atl. 7. The question, however, is whether the erasures were intended to be the final act of the testator by way of canceling portions of his will, or whether they were what is called in the law dependent relative revocation, which, of course, is not final. The intention with which the testator makes the marks upon his will is the crucial test as to whether or not cancellation is intended. Vice Ordinary Bergen in Hilyard v. Wood (N. J. Prerog.) 63 Atl. 9, said that the manner in which the

Let me say at this juncture that in Hilyard v. Wood, supra, the character of the erasures made upon the will were such as to lead most strongly to the conclusion that the act was deliberate on the part of the testator, and made with intent to obliterate the portions marked, for there were three or more lines drawn through each part of the will intended to be eliminated. Not so in the case of the will under consideration. In the will of Mr. Frothingham the second item is composed of 17 lines on the first page and 1 line on the second page. Through the 17 lines on the first page are drawn two pencil marks obliquely crossing each other, while the eighteenth line of the second item, which is the first line on the second page, is without cancellation. Through the third item, in which the bequest of his business is made by Mr. Frothingham to his friend Mr. Dodd, is drawn a single and practically vertical lead pencil mark through the first 14 lines, leaving 2 lines at the conclusion of the item untouched by the vertical mark. These 2 lines are canceled by 4 oblique lines running through portions of them, 2 of which extend up into the body above. My reading of the testimony leads me to believe that the mark made by the testator upon this third item is the single vertical pencil mark to which I have referred. The testimony of the witness Dodd is somewhat ambiguous upon this point. He says that Mr. Frothingham made all of the pencil erasures with the exception of the mark through his own name in the second line of the third item, and, to use his own language, "the mark through James P. Dodd' was made by myself in his presence. The mark through 'John Olney' and John J. Edwards' was also made by me in his presence." In the answer from which the foregoing is quoted he mentions obliterating his own name twice, and in the testimony thus literally copied I take it that his mention of his name refers to the second time his name appears in that item. It should be stated in this connection that the vertical pencil mark through the third item runs through the initial letters of the names of Dodd and Edwards. This line was drawn by the testator, unless he stopped above the