prior to her father's death. Lillian gave no testimony as to what was done with the deed after its execution or as to any statement made by her father tending to show delivery to her or to her stepmother.

[1] The complainant would meet with no difficulty in enforcing her claim because the conveyance was from the husband direct to his wife. Such a deed would be held to pass an equitable estate in fee, and she would be entitled to have the legal title from her husband's heirs. Sipley v. Wass, 49 N. J. Eq. 463, 24 Atl. 233; Vought v. Vought, 50 N. J. Eq. 177, 27 Atl. 489; Cowdrey v. Cowdrey, 71 N. J. Eq. 353, 64 Atl. 98. Her difficulty is that she has failed to show delivery of the deed by her husband to her or to the other grantee.

think that either of these thoughts could have been in his mind when he told his wife that, if he failed to record the deed, she should have it recorded immediately after his death, for he lived nearly three years after executing it. On the contrary, his intention appears to have been to continue his ownership of the property until such time as he might determine to record the deed in his lifetime, and should he decide, by withholding the deed from record, not to permit title to pass from himself to his wife and daughter in his lifetime, that they should not become the owners of the property until after his death. He said, in effect, that if he concluded at some later time to deliver the deed and give the property to his grantees in his lifetime, he would evidence such conclusion by recording the deed, and, if he did not record it, there would be no delivery until after his death. If he had not intended to deliver the deed at some future time, he would have given it to his wife when she was with him at its execution and acknowledgment or upon their return home. Evidently the conditions upon which the deed was to become effective in his lifetime did not occur, and so he left it to his wife to record the deed after his death, with the thought probably in his mind (because he left no will) that the deed would take the

[2] The elementary principles governing the question of delivery of a deed are well settled. It is not necessary that there should be an actual handing over of the instrument to constitute delivery. A deed may be delivered by words without acts, or by acts without words, or by both acts and words. A deed may be effectual to pass real estate, though it be left in the custody of the grantor. It is necessary, however, that there should be something evincing the intent. It must satisfactorily appear, if not from acts and express words, yet from circumstances at least, that there was an inten-place of a will. But, if the deed was in the tion to part with the deed and of course pass the title. Crawford v. Bertholf, 1 N. J. Eq. 458; Woodward v. Woodward, 8 N. J. Eq. 779; Cannon v. Cannon, 26 N. J. Eq. 316; Ruckman v. Ruckman, 33 N. J. Eq. 354; Hildebrand v. Willig, 64 N. J. Eq. 249, 53 Atl. 1035; Rowley v. Bowyer, 75 N. J. Eq. 80, 71 Atl. 398; Abbe v. Donohue, 90 N. J. Eq. 597, 107 Atl. 431; Folly v. Vantuyl, 9 N. J. Law, 153.

[3, 4] The fact that the officer in whose presence Rommell executed the deed certified that the grantor acknowledged that he had signed, sealed, and delivered it is not conclusive evidence of delivery, but may be rebutted by other evidence showing that there was actually no delivery. It frequently happens that a grantor will execute and acknowledge his deed several days in advance of the date on which he intends to make physical delivery of it, and delivery is not complete until the latter date arrives, when by act or words the deed passes from the grantor's possession, either actually or constructively, to the grantee. If, following his acknowledgment, Rommell had intended to record the deed immediately, but his purpose had been frustrated, there would be strong evidence from which a present delivery could be inferred, but it is not claimed that he was in ill health and in fear that he might die before he could get it to the county seat, or that he intended to record the deed so soon as it was possible or convenient to

nature of a testamentary devise, it is void for the reason that it contravenes our statute on wills. Schlicher v. Keeler, 67 N. J. Eq. 635, 61 Atl. 434; Rowley v. Bowyer, supra; Abbe v. Donohue, supra.

[5] It is argued on behalf of complainant that the execution and acknowledgment of the deed by the grantor, followed by notice thereof to the grantee and placing it in a box with instructions to the grantee to take possession of and record it after the grantor's death, is tantamount to delivering an executed deed by the grantor to a third person with instructions for its delivery to the grantee upon the grantor's death, which form of delivery to a third person, on the authority of Rowley v. Bowyer, supra, is good. But, says the learned Vice Chancellor who decided that case, such delivery is good, unless accompanied by acts or words of the grantor which indicate a purpose on his part to reserve to himself control of the deed. In the instant case the grantor made no delivery of the deed to any one and did not part with its possession or control from the time of its execution to the day of his death. It was a private paper, always kept by him with other private papers in a private place, and by no act or word had he indicated an intention to part with control of it and make it effective as a conveyance. He undoubtedly retained the right to destroy it and make other disposition of his real

(115 A.)

Chancellor further said in the opening lines of his opinion in Rowley v. Bowyer:

"Its [a deed's] delivery is a matter of intention, and the acts and declarations of the grantor are evidence of his intention. It is not delivered unless or until it is the intention of the grantor to perfect the instrument and make it presently effective as a conveyance."

A grantor who delivers his executed deed to a third person with instructions to record it after his death and without further reservations may thus part with all control over the deed and make it the property of the grantee, but a grantor who merely changes the place of deposit of his executed deed from his hand or from his pocket to his box, to which he alone has the right of access, and from which he and no one else has the right to remove it, cannot be said to have parted with its possession or control, especially when he expressly reserves the right to decide when it shall become effective.

Appeal from Orphans' Court, Atlantic County.

Appeal from a decree of the orphans' court involving the construction of the will of Thomas Buzby, deceased. Decree advised in accordance with conclusions stated.

William M. Clevenger, of Atlantic City, for appellant.

Leap, Sharpless & Way, of Camden, for respondent.

LEAMING, Vice Ordinary. This appeal involves the construction of the fifth paragraph of the will of Thomas Buzby, deceased. That paragraph is as follows:

"5th. I give and bequeath unto my beloved wife Mary M. Buzby during her natural life the residue of all my personal estate of whator while she remains my widow, all and singular soever kind I may be possessed of, at the time of my decease, and after her death or marriage, tó such person or persons as would by law inherit the same."

[6] My conclusion is that the deed was not delivered and was not intended to take The single question which has been coneffect in the grantor's lifetime, but was to troverted is whether the gift of the corpus take effect after his death, and is therefore of the personal property referred to in the null and void and should be set aside. The paragraph above quoted is to be understood result is that Rommell died seized and intes- as a gift to the persons who were next of kin tate of the premises in question, which of testator at the time of his death, or to the thereupon descended to his nine children as persons who would stand in that relation to tenants in common, subject to the dower testator at the decease of the life tenant, who right of the complainant. has recently died.

93 N. J. Eq. 411)

In re BUZBY'S ESTATE.

In no other part of the will is there to be found any provision which can be said to materially aid this inquiry.

[1] It is a well-recognized rule that such words as "such persons as would by law in

(Prerogative Court of New Jersey. Jan. 25, herit the same" are interpreted in reference

1922.)

1. Wills 524(6)-Gift of. personalty "to such persons as would by law inherit" refers to persons entitled under statute of distribution at time intended by testator.

to the kind of property, whether real or personal, which is the subject of testamentary disposition. Accordingly the gift to such persons as would by law inherit the same must be here understood to refer to the persons Under a will bequeathing the residue of who would take under the statute of distritestator's personal estate to his wife, and aft-bution at the time intended by testator. er her death or marriage "to such persons as would by law inherit the same," the persons referred to are those who would take under the statute of distribution at the marriage or death of the wife.

2. Wills 524 (2)-Devise over after life estate "to such persons as would by law inherit" imports heirs living at time of death of life tenant.

A limitation over to the "heirs at law" or "next of kin" of testator after a life estate refers to persons who are heirs at law or next of kin at time of testator's decease, even though the life tenant should be one or the sole person to take, the natural presumption to the contrary being insufficient to control the legal and fixed meaning of the technical words "next of kin" or "heirs at law" as necessarily referring to testator's death, in the absence of directions in the will fixing some other time.

Trenton Trust Co. v. Donnelly, 65 N. J. Eq. 119, 124, 55 Atl. 92; Leavitt v. Dunn, 56 N. J. Law, 309, 28 Atl. 590, 44 Am. St. Rep. 402; Meeker v. Forbes, 84 N. J. Eq. 271, 93 Atl. 887.

[2] Touching the primary issue, above stated, it was recognized in Tuttle v. Woolworth, 62 N. J. Eq. 532, 50 Atl. 445, that, where a life estate is given to a person and the limitation over is to the "heirs at law" or "next of kin" of testator, the limitation over will be understood to refer to the persons who were heirs at law or next of kin of testator at the time of his decease, even though the life tenant should thereby take as one of the heirs or next of kin, or even be the sole person to take under such limitation over; the reason underlying that determination being that what is referred to as the natural presumption to

the contrary is not sufficient to control the the lien of the mortgage as after-acquired legal and fixed meaning of the technical property. words "next of kin" or "heirs at law," as necessarily referring to testator's death, in the absence of directions in the will fixing some other time.

The same general view was adopted in Oleson v. Somogyi, 90 N. J. Eq. 342, 107 Atl. 798, although the time of the decease of the life tenant was there determined upon as the time intended by testator, notwithstanding the use of the technical words "heirs at law" and "next of kin" of testator in the limitation over. The view there made the basis of the decision was that even slight indication of testator's intent to refer to his heirs or next of kin at the termination of the life estate should overcome any presumption to the contrary arising from the use of the technical words.

3. Corporations 559 (5)-Trustee foreclosing mortgage on public service corporation's property held entitled to equity in book accounts coming to receiver to extent of depreciation of property.

In a suit by a trustee to foreclose a mortgage against a corporation in the hands of a receiver in insolvency, book accounts coming not subject to the mortgage, were subject to to the receiver after his appointment, while an equity in favor of complainant, the corporation being a public service corporation and the accounts only being made possible by the use of the mortgaged property which was necessarily thereby depreciated, and hence for such depreciation complainant was entitled to compensation to an extent to be determined on proof thereof.

4. Corporations 559 (5) - Trustee's failure to appoint a receiver on foreclosure against corporation in hands of receiver held not to deprive him of equities in fund earned at expense of mortgage security.

In suit by a trustee to foreclose a mort

In the recent case of American Builders' Corporation v. Galligan (Ch.) 114 Atl. 329, the gift over was to "such persons as would by law inherit the same." The language there adopted by testator is identical with that in the present case. The absence of the techni-gage against a corporation in the hands of a receiver in insolvency, the failure of the trus cal words in the gift over was there held to tee to apply for a receiver in foreclosure distinguish the case from Tuttle v. Wool- whereby the trustee would have become entiworth, supra, in that it removed the impel-tled to all the earnings of the corporation held ling force of the purely technical words al- not to deprive the trustee of his equity in the ready referred to, and it was there broadly funds earned at the expense of the mortgage held that a devise over after an estate for security. life "to such persons as would by law inherit" imports heirs living at the death of the life tenant. It was also there held that the use of the word "would" further imported the death of the life tenant as the time referred to by testator. Briden v. Hewlett, 2 Myl. & K. 90, being cited to that effect.

The decision in American Builders' Cor. v. Galligan, supra, obviously controls the determination of this case.

A decree will be advised in accordance with these views.

(93 N. J. Eq. 307)

Suit by the Gerard Trust Company, trustee, against the Standard Gas Company and another, to foreclose a mortgage. Decree for complainant.

Lindabury, Depue & Faulks, of Newark, and Josiah Stryker, of Newark, for complainant.

William E. Foster, of New York City, for receiver.

BACKES, V. C. The mortgage under foreclosure was given by the defendant company to the complainant, as trustee, to secure a bond issue, of which there is now outstandThe mortgage conveys the plant of the defendant company located in 17 municipalities in Monmouth county, to

GERARD TRUST CO. v. STANDARD GAS ing $601,700.
CO. et al. (No. 49/665.)

(Court of Chancery of New Jersey. Jan. 4, which, and the inhabitants thereof, it fur

1922.)

nishes gas for heat and light. All of the 1. Chattel mortgages 18-Book accounts of company's property, tangible and intangible, corporation subject to mortgage on corporate owned at the time of the execution of the property. mortgage, and to be thereafter acquired, was Book accounts of a corporation at its in-subjected to the lien of the mortgage in these solvency are subject to a mortgage on its prop-comprehensive terms, after describing parerty then owned or thereafter acquired.

ticular land holdings:

2. Corporations 559 (5)-Extent to which "Also all and singular all other property, mortgage on corporate property includes real, personal and mixed, of whatever kind book accounts coming to receiver stated. and wheresoever situated, whether now owned Book accounts of a corporation which had or hereafter acquired by the company, includbecome insolvent were subject to a mortgage ing (without in any wise limiting or impairing on its property in so far as they came to the by the enumeration of the same, the scope and receiver at his appointment, but the book ac- intent of any general description contained in counts after such time were not subject to this indenture), ail gas works and gas plants,

:

(115 A.)

machinery, engines, boilers, houses, shops, sheds, apparatus, gas mains, gas pipes, gas posts, burners, reflectors, meters and distributing systems of the company, in or through the county of Monmouth, state of New Jersey, * all tools, fixtures, equipment, fuel, materials and supplies, all franchises, licenses, grants, interests, exemptions, immunities, contracts and ordinance rights and servitudes of every nature and description whatsoever; and all the estate, right, title and interest, property, possession, claims and demands of every nature and kind whatsoever, as well at law as in equity, now held, owned, possessed, enjoyed or claimed by the company and which it may hereafter acquire and any and every part thereof; and the reversion and reversions, remainder and remainders, earnings, tolls, rents, issues, income and profits thereof."

Shortly before this suit was begun the gas company was declared insolvent, and the defendant Stricker was appointed receiver, and he ever since has been operating the works under the order of the court. The complainant is entitled to a decree of fore closure and sale; the only question is the exI tent of the lien of the decree.

When the receiver took hold there came to his hands book accounts-moneys due from customers to the corporation-and in the course of his operation others accrued to him as receiver from consumers to whom he had furnished gas. The complainant claims that the book accounts of the corporation, as well as those contracted by the receiver, are covered by the lien of its mortgage, and ought to be included in the decree.

so clearly manifests a purpose to include all assets of mortgagor of every character, present and prospective, an over-technical measurement of the specific words used should not be indulged in to defeat the general and manifest intention. No creditor of mortgagor could have been reasonably misled by the language used. I think it clear that the outstanding choses in action of mortgagor are covered by the lien of this mortgage."

The receiver will be directed to account to the complainant for the company's book accounts that came to him at his appointment. [2] The contention that the receiver's book accounts are subject to the lien of the mortgage as after-acquired property of the corporation is untenable. The receiver's operation of the company's plant was not a continuance of the company's business. The company ceased to function when it was declared insolvent, and enjoined, in the language of the statute, "from exercising any of its privileges or franchises." The receiver took over its property and affairs, not as its representative, but as a statutorily created trustee, to liquidate the assets and distribute them among the creditors and stockholders. The book accounts arising from his management accrued to the trust, not to the moribund corporation. Coddington v. Bispham's Ex'rs, 36 N. J. Eq. 574.

[3, 4] While these book accounts are not reached by the mortgage, I think the complainant has an equity in them. They were made possible only by the use of the mortgaged property at the expense of the mort[1] That the book accounts of the corpora-gaged security, and, to the extent to which tion, at its insolvency, are subject to the this security has been depreciated by the mortgage is not an open question in this court. A corporation may mortgage its book accounts-existing and to be after-acquired. It was so held by Vice Chancellor Lewis in Commercial Trust Co. v. Wertheim Coal Co., 88 N. J. Eq. 143, 102 Atl. 448, and affirmed by the Court of Appeals in the same case sub nom Commercial Trust Co. v. Drayton, 90 N. J. Eq. 264, 105 Atl. 241. The decree below was modified, but only as to its application to certain of the accounts. In Buvinger v. Evening Union Printing Co., 72 N. J. Eq. 321, 65 Atl. 482, the precise point, under similar circumstances, and on a mortgage in words substantially like those above quoted, came up for decision, and it was held that the book accounts outstanding at the time of the appointment of the receiver in insolvency were incumbered, and they were awarded to the mortgagee. Vice Chancellor Leaming, after holding that book accounts, existing and aftter-acquired, may be mortgaged, says of the mortgage before him that

"The intention of the parties to include in the lien of this mortgage all of the assets of the mortgagor then existing and thereafter to be acquired in the progress of its business, is, to my mind, clearly manifest from the terms

use, there ought, in all fairness, be compensation on the theory of compensation for waste. Ordinarily a receiver in insolvency, when directed to operate, is limited to working up materials on hand into finished products, the better to market the same, and sometimes he is ordered to operate to preserve the assets for sale as a going concern; but here a great public utility and essentials of life were involved and at stake. The court's first duty was to the public to furnish it with heat and light, for, had they been denied, thousands of householders would have suffered acutely. Now, as it turns out, the receiver has made some money that goes to the credit of the trust estate, and it seems to me but equitable to allow therefrom the damage the mortgaged security sustained by the efforts that brought this fund into existence. The complainant might well have applied for a receiver in foreclosure, and thus would have been entitled to all the earnings. None, perhaps, would have been appointed, because the property already was in custodia legis, but the status of mortgagee in possession, in legal contemplation, would have been thereby attained. And, while it is so that the possession of the re

from the will that testatrix did not intend to die intestate as to any part of her property, the words "thus including lapsed legacies" takes the case out of the general rule. In such sitor sink into the residue, but, more properly uation the legacy, in strictness, does not lapse speaking, continues therein.

possession of the mortgagee, and was not | sultant lapse, held that, as it plainly appears for its benefit, any more than would a receiver in foreclosure of a second mortgage be regarded as holding for a prior mortgagee foreclosing by a separate suit (Longdock Mills & Elevator v. Alpen, 82 N. J. Eq. 190, 88 Atl. 623), the mere failure of the complainant to avail itself of its legal rights in this respect is no reason for depriving it of an equity in the funds earned at the expense of its security. In other words, the security ought not be prejudiced by the use made of it under judicial direction while in the cus-four equal portions, giving to several persons in tody of the law.

The allowance for depreciation will be determined on further proofs. The amount will be a preferential lien on the funds in the hands of the receiver on his final accounting in the insolvency suit.

(93 N. J. Eq. 336)

AITKEN v. SHARP et al. (No. 46/676.)

(Court of Chancery of New Jersey. Jan. 3, 1922.)

(Syllabus by the Court.)

5. Wills 863-Interest of person dying in lifetime of testatrix held to pass to the residuary legatees in proportion.

Where testatrix, in the residuary clause, directed that the residue should be divided into

one paragraph (fourth) one-twelfth and threetwelfths, respectively, and, in another paragraph (fifth) another portion to several persons in one-fourths, and in still another paragraph (sixth) to her executors in trust for life for two persons each one portion (thus the unit for division is forty-eighths), and one of the legatees (H. B.) in the fourth paragraph dies in the lifetime of the testatrix, her 3/48 passes to the other residuary legatees in proportion to their several legacies, viz. by cut48 to 45; thus those receiving one-half of oneting down the number of divisible units from fourth (or 1/48) will receive 1/45 of the whole residue.

1. Wills 756-Legacy of water bonds held 6. Wills 634 (3)-Estate created in will held general, and not specific. vested, and not contingent, remainder.

A testatrix, being possessed on the date The remainder mentioned in the sixth parof her will of 10 P. Water Co. bonds of the paragraph devised to the parties in the fourth value of $1,000 each, bequeathed 10 M. Water and fifth paragraphs are vested, and not conCo. bonds of the par value of $1,000 each, tingent, in that on the death of the life tenwithout using language indicating an intention ants the remaindermen are entitled to the ento pass bonds which she then owned, and when, joyment without any collateral contingency conin fact, she never owned any M. Water Co. curring. bonds. Held, the legacy is general, and not specific.

2. Wills 523-Beneficiaries held to take as individuals, and not as class.

Where the testatrix divides the residue into four equal portions, dividing her will into paragraphs, and directs that one portion be divided between the several persons mentioned in each paragraph in fixed proportions, held, the beneficiaries named take as individuals, and not as a class, even though the persons in each paragraph constitute separate branches of testatrix's relatives.

3. Wills 862-Lapsed residuary legacy held to pass to heir or next of kin.

Where a legacy or devise is given by the residuary clause and lapses, it does not sink into the residue but passes to the heir or next of kin, unless a contrary intention appears on the face of the will.

4. Wills 856-Legacy in residuary clause to one dying in testatrix's lifetime held to continue as part of residue.

7. Wills 634 (8)-Estate created by will held contingent remainder.

The remainder in the fifth paragraph, where testatrix devised to her executor in trust to pay the income to M. F. B. during her life "and at her death or if she die before me, then at my death to pay the principal to her children if any, or if she die leaving no issue, then I direct my executor to pay the remaining onefourth part to J. C. S., A. R. S. and H. S., share and share alike, and their shares, if they then be dead, shall go to their children or issue surviving, or if none, then to the survivors or children of those dying leaving issue," is a contingent remainder.

8. Conversion 19(2)-Will held not to operate as equitable conversion at testatrix's death, but only at time of actual sale.

Testatrix, after disposing of her entire estate, in the last paragraph of her will appointed an executor, "hereby giving him full power to make sale of any real estate whereof I may die seized, at public or private sale, and to make sale of any personal property, and Where in the third paragraph testatrix diupon such terms and at such times as he may rected that "All the rest, residue and remainder think best." Held, such language does not opof my estate, real and personal, wheresoever erate as an equitable conversion at testatrix's situate, thus including lapsed legacies, I wish death, but only from the date of the actual sale. divided into four equal portions," and in the fourth paragraph she gives one portion to 9. Wills 457-Word "legacy" held to include several persons, to some one-twelfth and to all lapsed legacies and devises. others three-twelfths, and a legatee of three- Where testatrix, in her residuary clause, twelfths died in testatrix's lifetime, with the re-used the words "thus including lapsed legacies,"