one-half of the net income during her life, | plates apparently a division into two parts of one-half of the principal of the estate be- the net income of the whole estate invested comes immediately divisible among the per- as one trust fund. A provision for the paysons entitled as residuary legatees to the es- ment of one-half of the net income of an entate, and whether therefore the sisters of tire principal fund is manifestly a different testator are entitled to require only one-half thing from a direction to pay the net income of the principal to be retained for the pay-of one-half of the principal fund. And under ment of income to them on this half for their lives. For the sisters it is contended that the entire principal must be held at least during their joint lives for the payment to them equally of all the income thereon, including that previously enjoyed by the wife, after deducting specific annual payments of income to other relatives under the will. These payments to other legatees, together amounting to $10,500 annually, are much less than the income of the estate, which exceeds $800,000, and which as now invested yields an annual income of about $48,000. this direction, I think the trustees have no authority to make such division of the principal fund into two separate parts or funds. This direction completes the eleventh item or paragraph, and the next or twelfth paragraph provides for the payment after the death of his wife, to each of two legatees, Mrs. Fretz and Miss Nippes, of $2,500 during their respective lives, with cross-survivorship to each of these legatees, and to Frank P. Nippes, Jr., of $500 during his life, without survivorship provision. These three legatees are, it is said, of testator's wife's kin; but, although The sisters are also the residuary legatees these payments are not to be made until to the extent of one-third each of the entire after his wife's death, there is no direction fund not otherwise disposed of, but they that they are to come out of the half of the claim that no portion of the principal is yet net income, which would have been paid to divisible. The residuary legatees of the trust the wife, had she been living, nor is there fund, other than the sisters, being a nephew any direction which would make them payand nieces of the testator and a niece of his able otherwise than out of the income generwife, and who are each entitled to one-ninth | ally after his wife's death. Following this is of the residue, claim that the sisters are en- the thirteenth paragraph, which provides for titled only to the income of one-half of the the payment out of the principal of the estate principal fund (less the special deductions) of two sums of $50,000 each to the issue of and that after the death of the wife one-half these two legatees, Mrs. Fretz and Miss of the principal became immediately divisible Nippes, in certain contingencies. These conamong the residuary legatees. These two tingencies have not yet occurred and at presquestions, the right of the sisters to the in-ent only have a bearing, as being required to come of the entire fund, and the right to distribute any portion of the principal, are thus inseparably connected, and decision upon one point affects the disposition of the other. The difficulty in reference to the construction of the will on these questions-for there is a difficulty—arises from the fact that the will is not only inartificially drawn; but, in reference to the particular point now in question, it is drawn confusedly, as will appear from a recitation of its provisions. The will after a direction for payment of debts and funeral expenses, and for the payment of specific legacies (all of which amounted to about $50,000), gave and devised the entire residue of his estate to his executors and trustees, in trust for the uses thereafter named. This residuary clause vested in the executors the legal estate in the entire residue, leaving, however, the equitable or beneficial estate therein to be further declared. Directing that the trustees invest and keep the estate invested and collect the rents and profits therefrom, pay all taxes or other charges, the testator then directed that they pay over the balance after such payment. This "balance" must be taken on the face of it to relate to and include only the payment of net income of the estate, considered as a whole. The first payment to be made is to his wife annually in quarterly payments during her life "of an amount equal to one-half be provided for in case any distribution of principal be now directed. The important features of the thirteenth paragraph, on the present questions, are: (1) That this payment of principal is not specially directed to be made out of a half of the principal, nor is there any provision that would indicate it is not payable out of the principal generally; and (2) that these payments of principal to the issue of these two life tenants are not, by this clause or any other, made expressly dependent on Mrs. Barr's death. They only become so dependent by reason of the fact that such payment out of the principal (considered as a single trust fund) would pro tanto deprive Mrs. Barr during her life of one-half of the net income of the whole estate, previously given upon this trust, and might therefore by implication be payable only after her death. After these directions, which, it will be seen, fall far short of one-half of the net income and do not dispose at all of the balance of the one-half of the net income payable to the wife during her life, the testator, without any further special express reference to this balance of the one-half of the net income which the wife had received, seems to assume by the next paragraph of his will that he had in fact already made such direction as to this balance of income. The fourteenth paragraph reads: "I further direct that out of the remaining disposed of" (the italics are mine) "there be paid two annual payments of $2,500 each" to a nephew and niece during their respective lives. time arrives for the division of the principal, remains to be specially considered. Up to this point in his will (the fifteenth paragraph), the testator had made provision, first, for the entire one-half of the net income during his wife's life, with an express disposition after her death, among her rel This clause apparently treats the "remaining one-half income," i. e., the income which remained after the half income given to the wife for life, as a separate fund, and ap-atives, of a portion only of this one-half inparently authorizes the inference that the payments of income to the wife's relatives after her death were by the testator considered as being made as, in part at least, "disposing of" the one-half income previously given to the wife. But while the entire income is apparently divided, there is so far no indication or suggestion that the principal is to be divided, or is not to remain entire. The next paragraph, the fifteenth, provides for a payment to the issue of this nephew and niece respectively of the sum of $50,000, with cross-remainders on survivorship, and these two sums of $50,000 each are to be paid on contingencies which have not yet occurred. These payments, however, are specially directed to be made "out of the principal or corpus of the second one-half of my estate." Up to this point in the will, as I have said, there had been no indication of an intention that the entire principal of the trust estate should at any time be divided into two portions, and this direction for manner of payment at this time by a division of principal cannot, in my judgment, avail or be considered sufficient to establish the right to make such division or principal into two funds from the inception of the trust. It seems to be, however, a plain clear direction that these payments, when made, shall be made in this manner, and when the contingency arises requiring the payments, or either of them, to be made, under this clause, a division of the principal into two trust funds may then be required, in order to carry out all the express provisions of the will. Had similar directions been given that the $50,000 legacies previously given to the issue of the wife's kin be paid "out of the first half of my estate," I am inclined to think that the division of the entire estate into two trust funds would then have been required on the happening of the contingencies therein provided for payment, and that, in the absence of any special direction for a previous division, the division into two funds must have taken place, as soon as the contingency for payment out of either specified half of the principal first arose. But no such provision for payment of the two $50,000 legacies to the issue of the wife's kin was made, and, in the absence of any other provision controlling the holding of the trust estate as an entire estate, it must, I think, be so held, at least, until this contingency for payment under this fifteenth paragraph arises, and the trustee under the will has no authority to divide the principal of the trust estate into two portions until that time. The matter of the disposition of the "surplus income" until the come which would have come to her, leaving the balance of this one-half undisposed of by any express direction; and he had also, secondly, made express provision for only a portion of the other one-half of the income of the entire estate. Then follows a separate distinct paragraph, the sixteenth, dealing with income alone, as follows: "I further direct that all remaining surplus income be divided equally and annually between L. Birch, during their natural lives." my two sisters Katherine V. Dorey and Helen This provision gives rise to the principal dispute, which is whether "surplus income" under this clause means the income not previously effectively disposed of by the previous bequests of income, or whether the "surplus income" bequeathed by this clause is the surplus only of the second half of the income, being that not given to the wife during her life. The latter contention is based on the general claim above discussed that it sufficiently appears on the whole will that a division of the principal into two funds from its inception is contemplated, and that, if this be established as the true construction of the will, then the "surplus income" referred to in this paragraph must be the surplus only of the income of the second or remaining half of the principal fund referred to in the fourteenth paragraph as being the surplus "of the remaining one-half of the income not yet disposed of" by the legacies to the wife and others after her death, by the paragraphs preceding the fourteenth. The "surplus" income, taking this in the sense of income not actually or effectively disposed of, certainly included a balance of income after the wife's death not absorbed by the payments to the previous legatees, and the precise question is whether this express direction as to "surplus income" includes all income not actually disposed of, or whether this bequest of the surplus income is to be treated as a specific bequest of the surplus of the remaining or second one-half. If so, the "surplus" of the first one-half falls into the general residuary bequest of the equitable or beneficial estate in which the trustee has the residuary legal title. This clause, the seventeenth, directs all the residue to be divided into nine equal parts and paid over, three-ninths to each of his sisters, her heirs and assigns, and one-ninth each to his nephew J. N. Downey, his niece Helen L. Downey, and Katherine N. Nipper, his wife's niece. The time for this payment is not expressly fixed; but treating the previous clause as one disposing of the entire sur plus income of the estate, not merely of the surplus of one-half of the income, this last residuary clause applies to the principal fund alone of the equitable estate, leaving the previous clause to be construed as the residuary clause applying to the income. It must be conceded, I think, that by reason of the confused and inartificial character of the will as bearing on these points of dispute, the contention can fairly be made that such division of principal into two funds from its inception and a separation of the incomes into two distinct portions is suggested or indicated; but, as I have stated, it cannot be safely said that, taking the whole will, such division has been directed, or that there are any directions in the will sufficient to justify the conclusion that the testator intended in the sixteenth paragraph to restrict the "surplus income" to that of the second half of the fund referred to in the fourteenth paragraph. On considering the whole will and the arguments and briefs of counsel, I reach the conclusion: (1) That during the joint lives of the sisters they are equally entitled to the surplus income of the entire estate after deducting the special legacies; and (2) that until the happening of the contingency requiring the payment out of one-half of the principal fund of the legacies to the issue of J. Nethermark Downey and Helen L. Downey, or either of them, the fund is not divisible under the will, but is to be held as an entire fund. And this construction as to the time of division does, I think, carry out all the provisions of the will. Any construction fixing either the inception of the trust or any other time for the division of the principal must necessarily rest more on a supposed plan, indicated or suggested by the partial and incomplete provisions rather than on the construction of the words of the entire will actually used by the testator and from which his intention must finally be determined. Whether, on the death of either of the sisters, the payment to the survivor of either the entire or any portion of this surplus income is to be continued, is not decided. Decision upon this point should not take place until the question arises and the parties then interested are heard, and at this time would be premature. death or to M. and P. or the survivor of them for want of such issue alive at the determination of the particular estate. Dig. §§ 1488-1510; Dec. Dig. § 634.*] [Ed. Note.-For other cases, see Wills, Cent. 2. WILLS ($ 608*)-RULE IN SHELLEY'S CASE -APPLICATION-REMAINDERS. The remainder is contingent as to the person or persons who shall take at the death of the life tenant; and therefore the rule in Shelley's Case, which is a rule of law, and not of construction, does not apply. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1372-1378; Dec. Dig. § 608.*] 3. EQUITY (§ 264*)-PLEADING-DEMURRER. C. C., the life tenant, and her surviving children, executed two mortgages upon the devised premises. M. M. S., one of the children, died leaving a child, L. B. S. On foreclosure of the two mortgages mentioned (with a prior one not here in dispute) L. B. S., who was made a defendant, moved to strike out of the bill the prayer that she may be decreed to pay the complainant's mortgages or be foreclosed of her equity of redemption in the mortgaged premises. Held, further, the motion is tantamount to a demurrer, and a demurrer will lie to the prayer of a bill in chancery. [Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 536-540; Dec. Dig. § 264.*] 4. REMAINDERS (§ 14*) - WILLS (§ 498*) MORTGAGE BY REMAINDERMAN-CONSTRUCTION "ISSUE OF ONE'S BODY"-MOTION TO STRIKE. That part of the prayer of the bill in this cause to which objection is made must be struck out, because: As L. B. S.'s mother had only a contingent remainder (with others) at her death, which became extinguished, as to her (mother's) interest, by the happening of that event, she (L. B. S.) inherited nothing from her mother; and, as her great-grandfather by his will created that remainder, which has as yet become a vested remainder in nobody, she has not taken as a purchaser from him, although she may, and will, yet do so, if she survives her grandmother, the life tenant, because she is one of the issue of her grandmother's body begotten, according to the legal meaning of that term, which comprehends issue ad infinitum, and not that of the body of an immediate ancestor only. [Ed. Note.-For other cases, see Remainders, Cent. Dig. § 10: Dec. Dig. § 14;* Wills, Cent. Dig. §§ 1087-1089; Dec. Dig. § 498.* For other definitions, see Words and Phrases, vol. 4, pp. 3782-3792; vol. 8, p. 7693.] 5. REMAINDERS (§ 14*)-POWER TO CONVEYCONTINGENT ESTATES. Neither M. M. S., daughter of the life tenant, nor any of her life tenant's) other children, were empowered by section 19 of the Conveyancing Act (2 Comp. St. 1910, p. 1539), todispose of, or in any manner charge, the land described in the bill; they being within the proviso that no person shall be empowered to dispose of (mortgage) any contingent estate where (Court of Chancery of New Jersey. May 28, the contingency is as to the person in whom the (83 N. J. Eq. 361) TANTUM v. CAMPBELL et al. 1914.) estate may vest. [Ed. Note. For other cases, see Remainders, Cent. Dig. 10; Dec. Dig. § 14.*] Bill by Margaret W. Tantum against Catherine Campbell and others to foreclose mortgages. On motion to strike out part of the prayer of the bill. Motion granted. William J. Backes, of Trenton, for the motion. Charles H. English, of Trenton, opposed. WALKER, Ch. The bill in this cause was filed to foreclose three mortgages, two of which are involved in the pending motion; one of the latter made by Catherine Campbell and her then surviving children to James D. Tantum, guardian, January 7, 1898, and the other by Catherine Campbell and her then surviving children to James D. Tantum, guardian, November 1, 1899. All three mortgages became the property of the complain The ant by virtue of several assignments. title to the mortgaged premises was in James McGuire at the time of his death, and passed from him by devise. [1] So much of his will as is pertinent to the present inquiry provides as follows: "I do give and bequeath the said lot of land and the dwelling to be erected thereon, when the same is completed, to my daughter, Catherine, for and during the term of her natural life, to her sole use and benefit, entirely free of any charge or control whatever of any husband she now has or hereafter may have; and after the decease of my said daughter Catherine, I give and devise the said ot of land and dwelling to the lawful issue of her body begotten, her surviving, to hold in equal shares as tenants in common in fee simple. * * It is my will in case my said daughter, Catherine, shall die without lawful issue of her body begotten, her surviving, and I do in such event give and devise the said lot of land and dwelling to my daughter Mary and my son Phelix in equal shares as tenants in common, or to the survivor of them at the time of the decease of my said daughter Catherine without surviving issue as aforesaid, to hold respectively as follows," etc. * There is no doubt but that Catherine Campbell, daughter of the testator, has but a life estate in the premises; and the question pressing for solution is: Did the estate devised to her for life become a vested es tate in remainder in her issue in esse at the time the devise took effect-that is, upon the death of the devisor-or was the remainder to her issue a contingent one? It is to be observed that, if all of Cath erine's issue be dead at the time of her de cease, then the land in question will go to the testator's daughter Mary and his son Phelix, or to the survivor of them. [3, 4] One of the mortgagors in the last two mortgages above mentioned was Mary M. Sweeney, a daughter of Catherine Campbell, the life tenant. Mrs. Sweeney has since died leaving a daughter, Lida B. Sweeney, one of the defendants, her surviving. Motion is made on behalf of Lida "to strike out so much of the bill of complaint in the above-entitled cause as prays that this defendant, Lida B. Sweeney, may be decreed to pay to the said complainant the amount due to her on the bonds and mortgages secondly and thirdly set out in the said bill of complaint, and in default thereof that this defendant may be foreclosed of and from all equity of redemption or claim of, in, and to the said mortgaged premises, and that the same be sold to satisfy the amount due on the bonds and mortgages aforesaid, for the following reasons: First. Because this defendant did not, nor did any person through whom she claims an interest in the said lands create the debt or any part thereof, nor did she, or any person through whom she claims an interest in the said lands, execute or deliver any of the bonds and mortgages of this defendant nor any of the other children aforesaid. Second. Because neither the mother of Catherine Campbell were empowered to dispose of, or in any manner charge, the lands described in the bill of complaint, by the act entitled 'An act to authorize the transfer of estates in expectancy' (Gen. Stat. p. 881, § 138); the estate being an estate in expectancy or a contingent estate, where the contingency is as to the person or persons in whom the state may vest. This motion is made under rule 213, and is, in effect, a demurrer to the bill, and affords a proper opportunity to deliberately determine the merits. Bigelow v. Old Dominion Copper Co., 74 N. J. Eq. (4 Buch.) 457, 461, 462, 71 Atl. 153. The motion is confined to a portion of the prayer of the bill, and it appears that a demurrer, and consequently a motion such as this, will lie to relief prayed in a bill in chancery. Dan. Ch. Pl. & Pr. *547. That the general demurrer in Hoppock's Ex'rs v. United, etc., R. R. Co., 27 N. J. Eq. (12 C. E. Green) 286, was considered as affecting the prayer of the bill is apparent from the language of Chancellor Runyon at the end of his opinion on page 292, and also from the observation of Mr Justice Reed, speaking for the Court of Errors and Appeals, in the same case, sub nom. United, etc., R. R. Co. v. Hoppock, 28 N. J. Eq. (1 Stew.) 261, at page 263. The defendant Lida B. Sweeney contends that her contingent estate is not charged assumed to create. She claims that she will with the incumbrances which her mother take immediately from her grandfather as mother as an heir, upon the death of her a purchaser, and not immediately from her grandmother, the life tenant, and therefore vested remainder by her outliving her grandher contingent estate, should it ripen into a mother, will not be charged. These conten tions I am bound to support as well founded in law. mainder (with others) at her death, which As Lida's mother had only a contingent rebecame extinguished, as to her (mother's) interest, by the happening of that event, she her grandfather by his will created that reinherited nothing from her mother, and as mainder, which has as yet vested in nobody, although she may, and will, yet do so, if she has not taken as a purchaser from him, she survives her grandmother, the life tenant, because she is one of the issue of her grandmother's body begotten, according to the legal meaning of that term. I say that she (Lida B. Sweeney) will have a vested interest in the land if she survives her grandmother, the life tenant; and that is because the term "issue of one's body" means issue ad infinitum, and not that of the body of an immediate ancestor only. In the treatise on estates tail in 16 Cyc. it is laid down, at page 608: "Estates tail are estates of inheritance, which, instead of descending to heirs generally, go to the heirs of the donee's body, which means his lawful issue, his children, and through them to his grandchildren in a direct line, so long as his posterity endures in a regular order and course of descent." And Blackstone observes (2 Bl. Com. 113): "Tail general is where lands and tenements are given to one, and the heirs of his body begotten; which is called tail general because, how often soever such donee in tail be married, his issue in general by all and every such marriage is, in successive order, capable of inheriting the estate tail." As was said by Vice Chancellor Leaming in Coyle v. Coyle, 73 N. J. Eq. (3 Buch.) 528, 68 Atl. 224: "The word 'issue,' in its ordinary legal meaning, embraces grandchildren and remoter descendants, as well as children. When used in a will a more restricted meaning may be attributed to it, if from the terms of the testamentary disposition it clearly appears that the testator used the word in a particular meaning less general than the ordinary meaning." See, also, the remarks of Chancellor Magie in Inglis v. McCook, 68 N. J. Eq. (2 Robb.) 27, 39, 59 Atl. 630. In the case at bar I can find no language indicating an intention on the part of the testator to limit the contingent remainder in the estate devised to the children only of Catherine Campbell; and, no such intention being discoverable in the testament, the word "issue" must be given its usual significance, and be held to include all of the descendants of Catherine Campbell. And, as the limitation over is to Catherine's lawful issue in equal shares, all of her descendants, at her death, will take per capita, and not per stirpes. The devise in the case at bar is very like that in Teets v. Weise, 47 N. J. Law (18 Vroom) 154, in which it was held by the Court of Errors and Appeals: "Under a devise of lands to A. for her life. and at her death to her children who may be living at the time of her decease, no estate vests in a child who dies before A." And Mr. Justice Parker, who wrote the opinion for that court, quoting from Van Tilburgh v. Hollinshead, 14 N. J. Eq. (1 McCart.) 32, remarked (47 N. J. Law, at page 156): "Chancellor Green said that, when the limitation over of the estate upon the death of a devisee is to the surviving children of such devisee, a contingent estate is created, and, if a child should die before the devisee for life, the estate passes to the survivors. Perhaps the principle is more clearly stated in the syllabus to that case, prepared by the Chancellor, viz.: "The rule is that where an interest is given to one for life, and after his death to his surviving children, they only can take who are alive at the time the distribution takes place, and the estate is therefore contingent.' one of the makers of the mortgages in question, is dead. The devise was to Catherine for life, and after her death to the lawful issue of her body begotten, her surviving, but, should she (Catherine) die without lawful issue her surviving, then over to testator's daughter Mary and son Phelix in equal shares, or to the survivor of them. It is plainly apparent that the remainder to the issue of Catherine Campbell was contingent as to the persons who should take. I cannot find any intent in the will to vest in the children of the devisee for life an in defeasible estate; therefore no estate in the land described in the bill vested in the defendant Lida B. Sweeney upon her mother's death. [2] The complainant insists that the rule in Shelley's Case applies, and that Catherine Campbell took a fee simple or a fee tail under the will of her father; that, if section 10 of the statute of descent (2 Comp. St. 1910, p. 1921), is applicable, the estate vested in Catherine Campbell, the devisee for life, and in her children equally, to be divided between them as tenants in common in fee, after her death; and if section 11 of the statute is applicable, the estate devised being such as would have been an estate in fee tail, Catherine has a vested estate for life, and her children took a vested estate in remainder as tenants in common in fee. But the rule in Shelley's Case does not apply. As was said by Mr. Justice Depue, speaking for the Court of Errors and Appeals, in Martling v. Martling, 55 N. J. Eq. (10 Dick.) 771, at page 782, 39 Atl. 203, at page 206: "The rule in Shelley's Case is a rule of positive law, and not of construction. Where, upon the construction of a grant or devise, the rule is found to be applicable, it cannot be controlled by any expression of a contrary intent. In such cases the devolution of the estate is iris used in a conveyance or devise, and the rule resistibly fixed. But whenever the word 'heirs' in Shelley's Case is invoked, a preliminary question arises whether the word heirs' has rule in Shelley's Case applicable." been used in such a sense as will make the And as was said by me, when Vice Chancellor, in Robeson v. Duncan, 74 N. J. Eq. (4 Buch.) 746, at page 749, 70 Atl. 685, at page 687: "Whether or not the rule in Shelley's Case applies depends upon the construction of the grant or devise under consideration. Martling v. Martling, 55 N. J. Eq. (10 Dick.) 771, 782. In my opinion, the estate with which we are here dealing is one in which the limitation over is by way of contingent remainder, and therefore the rule in Shelley's Case does not apply." The devise under consideration having created an estate for life in Catherine Campbell, with remainder to her issue surviving at her death, and, for want of any such sur The doctrine in Van Tilburgh v. Hollinshead was expressly approved and applied by Chancellor McGill in Dutton v. Pugh, 45 N. J. Eq. (18 Stew.) 426, 18 Atl. 207. And he was affirmed by the Court of Errors and Ap-vivor, then over to third persons, etc., the peals. S. C. sub nom. Jones v. Jones, 46 N. J. Eq. (1 Dick.) 554, 21 Atl. 950. Catherine Campbell, the life tenant, is still contingency being as to the person or persons who shall take at the death of Catherine, who is still alive, there is no room for |