sions and set aside the conviction. Held the only proper assignment of error in this court under which reliance might be had upon the assignments of error and causes for reversal assigned in the Supreme Court upon the record brought there from the quarter sessions. was excepted to in the trial court, and was made an assignment of error and a cause for reversal in the Supreme Court. the pleas, although the point was not made It was argued orally by the prosecutor of in his brief, that the objection by counsel for 2. Criminal law 561 (1)-Instruction as to the plaintiff in error that the trial judge "reasonable doubt" held erroneous. The charge of the trial court on the subject of reasonable doubt held error, on the authority of State v. Linker, 111 Atl. 35, wherein a proper definition of "reasonable doubt" is laid down. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Reasonable Doubt.] Error to Supreme Court. Clarence Fisher, Chief of Police, was convicted of suppressing crime for a money consideration. The conviction was affirmed on error to the Supreme Court (110 Atl. 124), and defendant brings error. Reversed, and new trial ordered. Clarence L Cole, of Atlantic City, for plaintiff in error. Daniel W. Beckley, Prosecutor of the Pleas, of Woodbury, for the State. erred in charging the jury on the question of reasonable doubt is not properly raised and is not available to him on error in this court, because he has not here assigned it as error nor made it a cause for reversal; and he contends that specific errors and causes for reversal are required to be filed in this court under section 137 of the Criminal Procedure Act in all causes where the plaintiff in error shall elect to take up the entire record under section 136. [1] Notwithstanding repeated adjudications in this court to the effect that there is only one proper assignment of error here when a cause comes up from the Supreme Court, when that tribunal has sat as a court of review (State v. Verona, 93 N. J. Law, 389, 108 Atl. 250; Thompson v. East Orange, 109 Atl. 340; State v. Metzler, 110 Atl. 922), namely, that the Supreme Court erred in giving judgment for the successful, when it should have been given for the unsuccessful, party, there appears to be a widespread impression among members of the bar that it is necessary to reassign in this court all of the errors assigned in the Supreme Court which are to be relied upon here as cause for reversal; and in criminal cases brought up under section 136 of the Criminal Procedure Act the impression seems to prevail that not only must the alleged trial errors be reassigned in this court, but also that any matter in the record not the subject of specific exception, upon which reliance is placed for reversal, must be specified as cause for relief or reversal under section 137, and served upon the Attorney General or prosecutor of the pleas. This is the procedure in the court of first appeal when the plaintiff in error desires a dual review: (1) For errors properly assigned upon the record; (2) for matters appearing in the trial record dis WALKER, Ch. The defendant, Clarence Fisher, chief of police of the borough of Penns Grove, was convicted in the Salem quarter sessions on an indictment charging him with suppressing crime for a money consideration, and judgment was duly entered thereon. He sued out a writ of error to the Supreme Court, where the judgment of the quarter sessions was affirmed, and has removed the judgment of the Supreme Court into this court on writ of error. Although counsel for the state contends otherwise, this case is here under section 136 of the Criminal Procedure Act (Comp. Stat. p. 1863). The return of the trial court was made in two certificates instead of one as is usual. In the first one the trial judge returned the record and proceedings with all things touching the same, which is the usual return at common law. Then at the conclusion of the testimony he certified that what preceded was the entire record of the proceedings had up-closing that manifest wrong and injury has on the trial, which is the certificate required under section 136 of the Criminal Procedure Act. State v. Clark, 75 N. J. Law, 473, 68 Atl. 114. In the Supreme Court the plaintiff in error filed several assignments of error and also several causes for reversal. The assignment of error in this court is that the Supreme Court gave judgment affirming the conviction of the plaintiff in error and of the judgment thereon when it should have reversed the judgment of the quarter sessions and set aside the conviction. The only alleged error argued in this court is that the trial judge erred in his definition of "reason able doubt" in his charge to the jury. This resulted to the plaintiff in error from the judicial conduct of the trial in respect to certain specified matters. State v. Merkle, 83 N. J. Law, 677, 85 Atl. 330. But the errors assigned on the bills of exceptions taken at the trial and the causes relied upon for relief and reversal comprehend errors committed in and by the trial court and are assignable in the court of review into which the trial record is immediately removed. When that court is one of intermediate appeal, and the losing party is dissatisfied with its judgment and then removes the cause into the court of last resort, the only proper assignment of error there is, as above stated, (113 A.) that the court below (court of intermediate guilty, it must be beyond a reasonable doubt, appeal) erred in giving the judgment which it rendered, for errors are assignable only upon the record. McCarty v. West Hoboken, 93 N. J. Law, 247, 107 Atl. 265; Birtwistle v. Public Service Ry. Co., No. 57, 112 Atl. 193, March term, 1920. The reason for all this is obvious: When a cause is taken from a trial court to a court of review, and reversal is sought for alleged errors made in the court of first instance, it is necessary in the appellate court to specify the alleged errors in the record and the causes which it is claimed should lead to reversal. The appellate court then pronounces upon the record so made its judgment, which is either of affirmance or reversal. And therefore the judgment of the appellate court is the only thing to be reviewed on appeal to a still higher court of review, in which latter court, after an assignment of error that the first appellate court erred in giving judgment for the successful instead of the unsuccessful party, the appellant or plaintiff in error can advance any argument tending to show that the first appellant court erred in giving judgment against him for any of the reasons upon which that tribunal rested its decision (Thompson v. East Orange, supra), and reliance may be had upon the assignments of error and causes for reversal filed in the court below and brought up with the record (State v. Metzler, 110 Atl., supra). The procedure above outlined applied to the case at bar is this: The cause was tried in the court of quarter sessions and removed into the Supreme Court on error. There errors were assigned upon the trial record and causes for reversal specified, and the Supreme Court gave judgment. That judgment has been removed into the Court of Errors and Appeals and is alleged to be erroneous, be cause it is said that the Supreme Court should have given judgment of reversal, and, not having done so, the Court of Errors and Appeals is asked to reverse the Supreme Court for one or more of the errors which were before it, which errors it did not make, but which were made in the court of quarter sessions, whose judgment should have been the reverse of what it was. The assignment of error in this court, namely, that the Supreme Court should have reversed the judgment of the quarter sessions, is entirely efficacious to permit of the argument in the Court of Errors and Appeals of the alleged error with regard to the trial judge's definition of reasonable doubt, which, as already said, was excepted to in the quarter sessions and assigned for error in the Supreme Court. [2] The judge's charge on the subject of reasonable doubt (several defendants being tried together by consent) was as follows: "After considering all the facts, you are to determine whether or not these defendants are guilty, and, if you determine that they are and by reasonable doubt is meant nothing more or less than that you as the men selected to determine this case shall conscientiously and as reasonable men be satisfied in your minds that the defendants did receive the money for the purpose of suppressing this crime. If you are so satisfied, you should convict them. you are not so satisfied, you should acquit them." If This is almost identical in words, and certainly gave identically the same impression to the jury, as the charge condemned by this court in State v. Linker, 111 Atl. 35, wherein a proper definition of reasonable doubt was laid down as follows: "Reasonable doubt is not a mere possible doubt; it is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty, of the truth of the charge." In passing it is proper to call attention to a mistake made by the Atlantic Reporter in this Fisher Case in reference to the Supreme Court's opinion, which is published in 110 Atl. 124. At page 125 of 110 Atl. appears the following, attributed to the Supreme Court: "Language similar in its legal effect was ap proved by this court in State v. Contarino, 91 N. J. Law, 103, 102 Atl. 872, and again in State v. Linker, 111 Atl. 35, decided at the last November term of this court." Examination of the filed opinion shows that this is correct with the exception of "111 Atl. 35." That "111 Atl. 35" is an interpolation, and is a citation of the opinion of this court in the Linker Case overruling the Supreme Court in that case, whose opinion is published in 110 Atl. 515, and the latter (110 Atl. 515) should have been cited in this Fisher Case in 110 Atl. at page 125 instead of this court's opinion in the Linker Case, 111 Atl. 35. It is but fair to the Supreme Court to say that its opinion in this Fisher Case, 110 Atl. 124, was filed April 9, 1920, which was more than two months before our opinion in the Linker Case, 111 Atl. 35, was filed which was on June 14, 1920. In fact, the Supreme Court in its opinion in the Fisher Case, 110 Atl. 125, in sustaining the instruction on the question of reasonable doubt in that case, used this language: "It must be admitted that the language used by the trial judge does not very clearly express the thought intended to be impressed upon the minds of the jurors. The question for us to determine, however, is whether it contains legal error, and we think it enough to say in deciding it, that language similar in its legal effect was approved by this court in State v. Contarino, 91 N. J. Law, 103, 102 Atl. 872, and again in State v. Linker, 111 Atl. 35 Atl. 607, and, for the reason stated in the opinion in that case, the judgment of affirmance brought up from the Supreme Court on this writ of error must be reversed, to the end that a new trial may be granted in the quarter ses [should be 110 Atl. 515], decided at the last ΤΟΝ. (No. 49/605.) That the Court of Errors afterwards did, namely, overruled the definition of reasonable doubt given by the Supreme Court in State SCHLOSSTEIN v. HENRY R. WORTHINGv. Contarino, 91 N. J. Law, 103, 102 Atl. 872, and State v. Linker, 110 Atl. 515, and laid down a proper definition of "reasonable doubt." State v. Linker, 111 Atl. 35. The result reached is that the judgment brought up from the Supreme Court on this writ of error must be reversed, to the end that a new trial may be granted in the quarter sessions. STATE v. STILES. (No. 17.) Court of Errors and Appeals of New Jersey. Feb. 28, 1921.) Error to Supreme Court. Proceedings by the State against Charles Stiles. Judgment for the State was affirmed by the Supreme Court, and defendant brings error. Reversed and remanded. Clarence L. Cole, of Atlantic City, for plaintiff in error. Daniel W. Beckley, Prosecutor of the Pleas, of Woodbury, for the State. PER CURIAM. The question raised and argued on the writ of error in this case has been considered in the case of State v. Fisher (No. 35 of this present November term, 1920) 113 (Court of Chancery of New Jersey. April 27, 1921.) 138(2)— 1. Executors and administrators Power to sell land not implied unless clearly intended. an executor will not be implied, unless the imPower to sell lands not expressly given to plication is clear from the terms of the entire will, and unless some duty has been imposed by the testator upon the executor, which necessarily carries with it a power of sale, in order to enable him to perform the duty. 2. Executors and administrators138(2) — Will held to give executors implied power to sell land. Where testator devised residue to executors "in trust with full power to invest and reinvest the same and the proceeds thereof" and to pay certain taxes therefrom and to pay net income to specified persons, the executors had ing necessary to the execution of the trust. implied power to sell the land; such power be Bill by Frederick W. Schlosstein against Henry R. Worthington, a corporation for specific performance. Motion to strike out bill denied. Schlosstein & Steinhardt, of Newark, for complainant. Davis & Hastings, of Jersey City, (William J. Davis, of Jersey City, of counsel), for defendant. FOSTER, V. C. This bill is filed to secure the specific performance of a contract between the parties, dated September 20, 1920, for the sale of certain lands in Harrison, this state; and, also, to obtain a declaration of the rights of the complainant to the premises in question under the authority of section 7 of the Chancery Act, P. L. 1915, p. 184. The cause comes before the court at this time on defendant's motion to strike out the bill for want of equity, and because the allegations of the bill show that complainant cannot perform his agreement by conveying the premises under a valid title. The facts on which the motion rests are: That complainant's title to the property is by a deed from the executors of George H. Phillips, deceased, who died testate, seized of the premises in question, some time prior to September, 1920 (and from others named therein), as grantors. (113 A.) Defendant contends that under the will of George H. Phillips, his executors and trustees were without power and authority to sell and convey the premises to complainant; and that in consequence complainant is unable to give defendant a marketable title to the property, and is therefore not entitled to the relief he seeks. By the will of Mr. Phillips, the residuary estate is bequeathed and devised to the executors in trust, and the executors are first directed to pay all debts, funeral and testamentary expenses; by the second paragraph, testator orders and directs: "That all inheritance and transfer taxes on my estate and on any legacy and devise herein contained be paid by my executors out of the residue of my estate." After disposing of personal and household effects and canceling certain debts and obligations, testator disposed of the residue of his estate, as follows: "Fifth. All the rest, residue and remainder of my estate, real and personal, wheresoever and whatsoever, I give, devise and bequeath to my executors, to hold the same in trust, with full power to invest and reinvest the same, and the proceeds thereof, expressly authorizing them to continue any investment made by me and to dispose of the same as follows:" (1) To pay the entire net income therefrom to his sister and brother for life. (2) Upon the death of either sister or brother, to pay the entire net income to the survivor of them for life. (3) If both the sister and brother named predeceased him, then to pay such income to his other brothers and sisters and the survivor of them for life; and then testator directed: "(4) On the death of the last surviving broth er or sister, or upon my death, if they all predecease me, to pay and make over the corpus of said estate in equal shares to such of the children of my deceased brother Edward L. Phillips, and my sister Helen Phillips Tompkins as shall then be living. If there be no such children, then to pay and make over said corpus in equal shares to such of the children of my sister Josephine Phillips Skinner as shall then be living." The sixth paragraph of the will appoints a brother and sister as executors of and trustees under the will. It will be observed that no express power of sale is given to the executors or trustees, and there is nothing in the record to show the nature or extent of the residuary estate. From the provisions of the will, it is clear that various duties with respect to the residuary estate are placed upon the executors and trustees. The determination of the present controversy in favor of the complainant must depend upon the finding that the duties thus imposed upon the executors and trustees necessarily carry with them a power of sale, in order to enable them to execute these trusts [1] The rule applicable to the situation is laid down by the Court of Errors and Appeals, in Chandler v. Thompson, 62 N. J. Eq. 723, 48 Atl. 583, as follows: en in a will to the executor, such power will "Where no express power to sell lands is givnot arise by implication, unless the implication is clear from the terms of the entire will, and it must be found that some duty has been imposed by the testator upon the executor, which necessarily carries with it a power of sale, in order to enable him to perform the duty." Illustrative of the class of duties, the performance of which necessarily implied a power of sale, is the case of Haggerty v. Lanterman, 30 N. J. Eq. 37, where, among other duties, the executor was directed to divide the estate, and also, to invest shares in part of the estate, such direction was regarded as contemplating a conversion of the real property into cash, with an implied power of sale for such purpose. In Lindley v. O'Reilly, 50 N. J. Law, 649, 15 Atl. 379, 1 L. R. A. 79, 7 Am. St. Rep. 802, from the various duties imposed upon the executors, by the will, the court found an implied direction and power in the executor to sell the lands. In Belcher v. Belcher, 38 N. J. Eq. 126, directions to pay some shares and implied di rections to invest other shares involved the necessity of converting the land, and therefore an implied power of sale. In Wurts' Ex'rs v. Page, 19 N. J. Eq. 365, it was held that a direction for the trustees to invest the proceeds of the estate indicated that a conversion of lands into money was intended, as the word "proceeds" implies a sale of the real estate. In the recent case of Moore v. Wears, 87 N. J. Eq. 459, 100 Atl. 563, the trustee was expressly given the right to change investments, and was further directed, on the death of the life beneficiaries, to pay over the principal of part of the estate; and it was held that these duties imposed upon the trustee indicated an intention that the real estate was to be converted, to accomplish which an implied power to sell was found in the trustee. [2] In the present case the residue is expressly devised to the executors, in trust; they are directed to pay certain taxes therefrom; they are also to invest and to reinvest it, and the proceeds of (the sale of) it; and finally they are directed to pay and make over the residue in the manner and to the parties designated by the testator. To enable the executors to effectuate these objects and purpose of the testator in the disposition of his residuary estate, all powers necessary and indispensable to the execution of the trusts will, if possible, be implied, including a power of saie of the real estate. And as it is clear from the terms of the trust that the under with respect to all of the objects testator had in view in the disposition of his residuary estate, without an estate in his lands, or power to convert them into money, then it follows that at least a power to sell the lands must necessarily be implied under these circumstances, and must be found in these executors; and in the exercise of this power they were authorized to convey the premises in questions to complainant; and he, as the holder of a valid title to the property, under this conveyance from the executors, can perform his agreement to sell and convey the same to defendant. I will therefore advise that the motion to dismiss be denied. (12 Del. Ch. 390) SHRIVER v. DANBY et al. PENNEWILL, C. J., and BOYCE, CONRAD, and RICE, JJ., sitting. Ruby R. Vale, of Philadelphia, Pa., and Robert H. Richards and James I. Boyce, both of Wilmington, for appellant. Richard S. Rodney, of Wilmington, for appellees. ion of the court: This is an appeal from the Court of Chan cery, in which court a bill was filed by the complainant, Lucie Van A. Shriver, grand daughter of William H. Gregg, deceased, against the trustees under the will of William H. Gregg, for the purpose of correcting the accounts passed by the trustees under his will. The opinion delivered by the Chancellor, and reported in 106 Atl. 122, so fully and clearly states the facts and contentions of (Supreme Court of Delaware. April 19, 1921.) the parties that it is deemed unnecessary to 1. Wills 684 (5)-A granddaughter's share of income from trust estate held diminished if note of her father to testator, or interest thereon, was not paid. Under a will giving estate in trust to pay a third of income to testator's daughter for life, and $50 monthly to each of two granddaughters till she was 21, and as each attained that age thereafter to pay her a third of the income for life, and declaring intent that the three should receive equal benefit, and that, if the income from a third of the estate should exceed the $50 a month to be so paid to a granddaughter, and should accumulate, the share of a granddaughter from which such income may accrue shall be increased in principal to the extent of such accumulation, and that any notes held by testator representing advances by him to the father of either of said granddaughters shall be considered a portion of that part of the trust to the income of which such granddaughter is entitled, and on the termination of the trust as to her, if any such notes shall remain unpaid, they shall be transferred to the beneficiaries entitled to the granddaughter's share as a part of the principal of her share, held, that the notes of a granddaughter's father held by testator formed a part of the trust estate: that if they were not paid the interest thereon, if paid, should constitute a part of the income from the trust estate; and that, if neither was paid, the interest should be charged to the daughter of the maker, and her share of the income diminished to that extent. 2. Bills and notes eration essential. restate them here at length. The said William H. Gregg devised the residue of his estate to the appellees in trust to pay a certain sum monthly to his two granddaughters until they attained the age of twenty-one years, and to pay to his daughter one-third of the whole net income of the trust estate for life. And when and as the granddaughters arrived at twentyone years of age, to pay unto each of them one-third of the whole net income for life. The will also contained the following provisions: "And it is my will and intent that each of my said granddaughters and my said daughter shall receive equal benefit and be entitled to an equal one-third share of my estate; and in case the net income from one-third of my estate shall exceed the sum of fifty dollars per month to be paid to my said granddaughters respectively until they attain their majority, and shall accumulate in the hands of the said trustees, then the share of either or both of my said granddaughters from whose share such income may accrue, shall be increased in principal to the extent of such accumulated income in each case respectively. "And it is further my will that any obligations I may hold representing advances to either of my said sons-in-law, Frank W. Shriver or Dr. Charles H. Wallace, shall be held, taken to be and considered a portion of that part of my trust estate to the income of which their daughters respectively are entitled, and upon the termination of the trust as to them respec63-Delivery and consid- tively, if any such obligation shall remain un A note of deceased to another found in deceased's effects can have no effect; it not being shown that it was ever delivered or that it had consideration. Suit by Lucie Van A. Shriver against John H. Danby and others. From decree dismissing the bill (106 Atl. 122), complainant appeals. Affirmed. paid, they shall be transferred by my said trustees to the beneficiaries entitled to my granddaughters' shares respectively as a part of the principal of their shares respectively." All the questions raised and argued before the court relate to the construction of the will of William H. Gregg, and are stated by counsel for complainant in their brief as follows: |