in the will limits such land over to designated persons in case A dies without issue and A so dies, and the substituted devisees are in esse at his death and there is no other event expressed in the will to which the limitation over can fairly be referred, then A takes a vested fee which becomes divested at his death and vests in those to whom the estate is limited over.

"Second. Where there is an event indicated in the will other than the death of the devisee to which the limitation over is referable (for instance, the distribution of the testator's estato or the postponement of the enjoyment of the property devised until the devisee reaches the age of twenty-one or until the exhaustion of a prior life estate), such limitation over will be construed to refer to the happening of such event or to the death of the devisee, according as the court may determine from the context of the will and the other provisions thereof that the limitation clause is set in opposition to the event specified or is connected with the devise itself."

In that case it was held that looking at the context, the limitation over stood, not in opposition to the devise itself, but to the event of the devisees coming into possession. The prior case of Pennington v. Van Houten, 8 N. J. Eq. (4 Halst.) 745, was an instance of the same kind, while Dean v. Nutley, 70 N. J. Law (41 Vr.) 218, was a case of the opposite sort. There land was given over "if E. die without lawful heirs," and it was held that the devise over took effect upon E.'s dying without leaving issue at any time.

These were all cases in the court of errors. There are many cases in this court showing how these rules have been applied. They will be found cited in the recent cases of Burdge v. Walling, 45 N. J. Eq. (18 Stew.) 10, and McDowell v. Stiger, 58 N. J. Eq. (13 Dick.) 125.

The case in hand falls under the first of the two rules laid down in Patterson v. Madden. The limitations over are set in opposition to Frederick's death and to that event only. Minnie is to take if Frederick die without children. That is all. Alice is to take if Frederick so die and Minnie be not living at the time of his death.

It is further contended that the clause, "should my house and

lot have been sold or exchanged my daughter is to receive the value of the house to the extent of $4,000," gives to Frederick an implied power of sale and consequently an absolute power of disposition. Reading the memorandum as part of the codicil (and on this assumption alone does Frederick take anything under the will) it would seem that the only sale that testatrix contemplated was a sale by herself. She had sold the first house given in her will to Frederick and she thought it possible she might sell the second. In the absence of a duty to be performed courts do not readily imply powers of sale. Boylan v. Townley, 62 N. J. Eq. (17 Dick.) 593; Chandler v. Thompson, 62 N. J. Eq. (17 Dick.) 724. Here the testatrix neither expressly directs nor expressly empowers a sale, nor does she designate the person to make one. But if testatrix had expressly authorized Frederick to sell, this would not defeat the contingent gift. If he sold he would, if the contingencies happened, be chargeable with the purchase-money, to the extent of $4,000, for Alice's benefit. The case would not fall within the reason of Downey v. Borden, 30 N. J. Law (7 Vr.) 461, or Wooster v. Cooper, 53 N. J. Eq. (8 Dick.) 682, for he would not be vested with the absolute power of disposal for his own use or benefit.

It is further objected that the devise to Alice is void because uncertain. As the testatrix did not sell the house, it alone, in the event that has happened, is the subject of disposition. There is now no alternative or substituted gift. But even on the assumption that Frederick has power to convert, he will sell not for himself alone but for Alice as well. And the proportion of the proceeds that he must hold for her is not doubtful. "The equivalent" for the lot sold is the $4,000, which testatrix, in terms, gives Minnie. To give effect to her obvious meaning as to Alice, we must read the will as if she had said,

*

"should my daughter not be living then the house and lot or the equivalent specified by me (viz., $4,000) is to be given to my granddaughter."

If the memorandum heretofore adverted to be not incorporated in the will, complainant has no title except by descent as to the one-half and by purchase from Minnie as to the other. He

6 Buch.

National Fire Proofing Co. v. Daly.

takes no title by will. As the executory devise to Alice is well within the law against perpetuities, there can be no question but that it is good. It takes effect upon the happening of the contingencies already discussed.

The bill should be dismissed, with costs.

THE NATIONAL FIRE PROOFING COMPANY

v.

WILLIAM H. DALY et al.

[Decided June 28th, 1909.]

1. An assignment of money due a sub-contractor from the contractor for the construction of a municipal improvement did not give to the assignee any lien on the funds in the hands of the city to the credit of the contractor, under act of March 30th, 1892 (P. L. 1892 p. 369), providing for the attachment of such lien, until the sub-contractor had given the statutory notice required to perfect his own lien.

2. Creditors of sub-contractors for the construction of municipal improvements are entitled to a lien on the moneys due the contractor in the hands of the city under act of March 30th, 1892 (P. L. 1892 p. 369), giving such lien in favor of sub-contractors, their assigns, or legal representatives, &c.

3. Materialmen having furnished materials to a sub-contractor for the construction of a municipal building did not disable themselves from acquiring a statutory lien on money in the hands of a city applicable to the contract by taking an assignment of the sub-contractor's claim against the contractor.

4. Where a notice of a materialman's claim for a lien on money due the contractor for the construction of a municipal building for materials furnished a sub-contractor had appended a copy of the contract between such materialmen and the sub-contractor containing the terms, time, and conditions of the agreement as required by act of March 30th, 1892 (P. L. 1892 p. 370 § 2), the notice contained a sufficient statement of the terms of the contract.

5. Act of March 30th, 1892 (P. L. 1892 p. 369 § 1), gives a lien on money due a contractor for the construction of a city building to subcontractors, materialmen, &c., on their compliance with section 2, which requires the service of a verified statement showing the amount of the

National Fire Proofing Co. v. Daly.

76 Eq.

claim, that the materials were furnished to the contractor, and that they were actually used in the erection and completion of the contract with the city.-Held, that where a notice of a lien recited that there was due claimant from D., sub-contractor for the mason work on public school No. 9. $6,630.49 for materials supplied in accordance with the contract between claimant and D., all of which had been fully completed, and the affidavit recited that there was due and owing claimant from D. $6,630.49 for materials supplied on and about the construction of public school No. 9, in the city of Hoboken, the statement sufficiently averred that the materials were actually used in the erection and completion of the school under the contract with the city; the word "supplied" being used there in the sense of "furnish" and the word "about" being taken to mean "upon."

6. Where notice of a corporation's claim of lien on funds due the contractor for a public building for materials furnished a sub-contractor recited the state, under the laws of which the corporation was incorporated, it sufficiently stated the corporation's residence as required by act of March 30th, 1892 (P. L. 1892 p. 370 § 2).

7. Where the affidavit attached to a notice of a claim for a lien against the unpaid price of a public building contained no general verification, but merely asserted that the statement inclosed was a true account of the material furnished, together with the dates when the same was furnished, and the prices thereof as it appeared by the claimant's books, there was no verified statement of the terms and conditions of the claimant's contract required by act of March 30th, 1892 (P. L. 1892 p. 370 § 2), in order to perfect a lien, though the claim contained a statement of such facts.

8. Act of March 30th, 1892 (P. L. 1892 p. 370 § 2), declaring that before the whole work is completed, the claimant may file with the city's financial officer, notices stating the claimant's residence, verified by his oath or affirmation and stating the amount claimed, from whom due and if not due, when it will be due, the amount demanded, after deducting all credits and offsets, with the name of the person by whom employed or to whom the materials were furnished, and the terms, time given. conditions of his contract, and that the materials were furnished and actually used in the completion of the contract, did not mean that a verified notice stating the claimant's residence should be filed, and that another unverified statement reciting the, additional facts should be filed, but that the claimant should file a single statement in which all the requisite facts should be verified.

9. Where a materialman's affidavit for a lien on funds due a contractor for a public building had attached thereto a paper styled "invoice" which. in addition to a recital of the date, kind of material furnished, and the prices. contained the words "Terms net 30 days. Goods f. o. b. New York," the claim contained a sufficient statement of the terms, time given and conditions of the materialman's contract as required by act of March 30th, 1892 (P. L. 1892 p. 370 § 2).

10. Act of March 30th, 1892 (P. L. 1892 p. 370 § 4), provides that no lien shall be binding unless an action is commenced within ninety days; section 6 authorizes the claimant to enforce his claim by a civil

6 Buch.

National Fire Proofing Co. v. Daly.

action, and section 7 declares that the plaintiff must make all parties who have filed claims parties defendant, and that the court may decide as to the extent, justice, and priority of the claims of all the parties to the action.-Held, that a claimant was not required to bring suit to establish his lien within ninety days, where he had been made a party to a similar suit by another claimant.

11. Such section further declares that no lien shall be binding unless a notice of pendency be filed with the financial officer of the city, township, or other municipality.-Held, that, while only one lis pendens need be filed, if it gives the required information. a notice was insufficient to protect the lien of one of several claimants where it contained no reference to such claimant or its alleged lien.

12. Under act of March 30th, 1892 (P. L. 1892 p. 370 § 4), each claimant is not required to give separate notice in case his claim is specified in the notice of another claimant, yet each may give notice, and, if he does so, his notice will protect his own claim and those of others mentioned therein.

13. A materialman's notice of suit to enforce a lien on funds due a contractor for a public building required by act of March 30th, 1892 (P. L. 1892 p. 370 § 4), was not defective because it was in the form of a letter, instead of a paper entitled in the cause.

14. The Bankruptcy act of July 1st, 1898 (P. L. 1898 ch. 541 § 1; 30 Gen. Stat. pp. 544, 545; U. S. Comp. Stat. 1901 p. 3418), does not invalidate liens of sub-contractors, materialmen. &c., on funds due the contractor for the construction of a public building created by act of March 30th, 1892 (P. L. 1892 p. 369).

On final hearing on pleadings and proofs.

Mr. Edward Q. Keasbey, for the complainant.

Mr. Gilbert Collins, for Lawson & MacMurray.

Messrs. Northrop & Griffiths, for the Trussed Concrete Steel Co.

Mr. J. Merritt Lane, for the Alpha Portland Cement Co.

Mr. Wayne Dumont, for the trustee in bankruptcy of Daly.

STEVENS, V. C.

This is a contest over a fund of $11,219.86 paid into court by the board of education of the city of Hoboken, and admitted to be due from Alexander Whan, the contractor, to William H.