Smith v. City of Newark.

v. City of Elizabeth, ubi supra. If he has not availed himself of it, he may, if entitied to protection, protect himself against the declaration of sale, by certiorari. By the act of 1869 it is provided that the proceedings on which declarations of sale are founded shall not be questioned collaterally, but may at any time be reviewed by certiorari in the supreme or circuit courts. (Rev. p. 758 § 15.) The legislature has provided for the protection of municipalities against undue loss through errors in imposing assessments. It has given to the law courts power on certiorari to inquire into and determine disputed questions of fact, and to reverse or affirm, in whole or only in part, according to the justice of the case. (Rev. p. 99 § 9.) And it has given to the supreme court power, on the setting aside or reversal of an assessment by certiorari, to appoint commissioners and make a new assessment. And, further, to do justice to the municipality as well as to the land owner, it has provided (P. L. 1876 p. 20) for supplying defects or omissions in the returns of assessments or proceedings in tax or assessment cases.

In such a suit as this, under the act to quiet titles, this court has no power to relieve from an assessment upon terms of paying so much as reasonably should have been assessed. The sole question for determination is as to the existence and validity of the interest, estate, right or encumbrance in question.

The fact that there has been a sale of the land under the assessment proceedings will not of itself entitle the complainant to relief in this court. Where the relief sought is to prevent a cloud upon title, it will only be granted where the title or encumbrance against which relief is sought, is absolutely a nullity. If the illegality or irregularity complained of exists dehors the record, it may, under our statute, be shown on certiorari. If there be a convenient and complete legal remedy, equity will not interfere. It seems to me very clear that recourse to equity on the ground of preventing or removing a cloud upon title in a tax case ought not to be permitted where relief either can or might

Miller v. Colt.

have been had at law, except where the title is a nullity. If recourse cannot be had to equity, before sale, because a remedy at law exists, it surely ought not to be permitted after sale, where it has existed and has been neglected or disregarded, except in the case before mentioned. To permit it on the ground of removing a cloud on title, where the remedy at law has been disregarded or neglected, in any other than the excepted case, is merely to assume, at a different stage of the proceedings, a jurisdiction which would not have been exercised before that time-is merely to declare that this court will not interfere before the attempt is made to collect the tax, but will do so as soon as it is made. The question, however, is settled by the language in Jersey City v. Lembeck: "In the presence, therefore, of a convenient and complete legal remedy, there can be no pretence for an appeal to a court of conscience upon general principles in order to remove a cloud from the title of the complainant.”

The complainant is not entitled to relief. The bill will be dismissed, with costs.

ELIAS N. MILLER, administrator &c.,

v.

MORGAN G. COLT and others.

A legatee's share was limited over only in the event of his death without lawful issue before the distribution of the estate. Before that time he was found to be an habitual drunkard, and one of the executors appointed his guardian. Before his death, distribution of the estate could have been made, and was, in fact, made to all but him.—Held,

(1) That the mere non-payment or delivery of such legatee's share to his guardian would not prevent its vesting.

(2) That such legatee was capable at times of managing his own affairs, and yet had not, after the partial distribution, demanded his share, does not affect his right or that of his next of kin.

Miller v. Colt.

(3) That the executors (of whom he was one) did not convert the testator's investments of his share into money (admitting that they ought to have done so), does not affect the vesting since. The inqui sition deprived him of the power to act, and his guardian's inaction was, under the circumstances, equivalent to a waiver.

(4) That the testator's exclusion of certain of his children or their heirs from participating in his estate on a contingency happening before distribution, indicates no intention to exclude them after distribution.

Bill for relief. On final hearing on pleadings and proofs.

Mr. R. Wayne Parker and Mr. Cortlandt Parker, for complainant.

Mr. B. Williamson, Mr. J. D. Bedle and Mr. Ashbel Green, for defendants.

THE CHANCELLOR.

The complainant, as administrator of the estate of Thomas O. Colt, deceased, late of the city of Paterson, files his bill for an account of the status and amount of the estate of the late Roswell Lyman Colt, deceased, and the share of the complainant's intestate, Thomas O. Colt, one of the sons of Roswell Lyman Colt, therein; and for an account, at the hands of Morgan G. Colt, surviving executor of Roswell Lyman Colt, deceased, and late guardian of Thomas O. Colt, under proceedings under the "Act relative to habitual drunkards," of all the estate, property and effects of Thomas O. Colt at the time of his death, including his share of the estate of his father, and all income, rents, profits and accumulation thereof, and for the payment and transfer thereof to him, as administrator of Thomas O. Colt. The bill is filed against Morgan G. Colt individually, and as surviving executor of and trustee under the will of Roswell Lyman Colt, deceased, and as guardian of Thomas O. Colt, and against De Grasse B. Fowler, and Julia C. his wife, one of the daughters of Roswell Lyman Colt, deceased.

Miller v. Colt.

Roswell Lyman Colt died on or about the 22d of November, 1856, leaving a last will and testament, dated October 12th, 1852, and a codicil thereto, dated September 25th, 1855, which were duly executed and admitted to probate on the 4th of December, 1856. By the first section of the will he appointed Morgan G. Colt, Thomas O. Colt, Aaron S. Pennington and William Pennington, executors thereof, giving and devising to them, and to a majority of them for the time being, and to the survivors or survivor of them, and the heirs, executors and administrators of the survivor, all such estates, powers and authorities in and over all his estate, real, personal or mixed, in possession or expectancy, as might be necessary to enable them to carry into perfect effect all the devises and bequests of his will, and in trust for that purpose; and also to sell, convey and dispose of all his estate, of every kind whatsoever, then acquired or thereafter to be acquired, as they might think best for the interest of his estate, and to give receipts for the purchasemoney, excepting only from the power to sell and convey the personal property in the dwelling-house and on the premises which he then occupied, which excepted property he gave to the three of his children who were then living with him, viz., Morgan G. Colt, Thomas O. Colt and Julia C. Colt, to be divided among them as they might agree; but no valuation was to be made of it. He also gave to his executors full power and authority to demand and receive. and compound for all debts due to him, and to collect all rents, issues and profits, revenue, dividends and income that might accrue to his estate or be receivable from or on account of every or any part of his estate; which money, so received, as well as all other moneys, was to be managed, invested and applied for the best interest of his estate, until distribution as in the will directed. By the second section he appointed guardians of the person and estate of his daughter Julia. By the third he made provision in regard to charities. By the fourth he provided for the business of the settlement of his estate, fixing compensation to his execu

Miller v..Colt.

tors, &c., &c. By the fifth he directed his executors, or the survivors or survivor of them, or the executors and administrators of the survivor, after having first complied with all the previous provisions of the will, to divide forthwith all the rest and residue of his estate, of every kind whatsoever, into four equal parts or shares, and-stating as one of his reasons (of which he said he had many) for confining the division of the residue to three of his children and the children of a deceased son, that, by an arrangement between him and his wife (who had relinquished all claim to his estate), he was to provide for them out of his estate, and she was to make provision for their other children, five in number, out of her separate estate-he declared it to be his will and fixed determination that neither his wife nor any of the five children for whom she was to provide, or the child or children of either or any of them, should have any share or portion of his estate, except as he might thereafter provide.

And he positively ordered and directed that his executors, having made the division of all the rest and residue of his estate as thereinbefore directed, and having estimated in and added to it for that purpose all charges (without interest thereon) then made or which should thereafter be made to the debit of his deceased son Roswell's estate, or the testator's children, Morgan, Thomas and Julia, on his books at the time of his death (but the charge in each case was to be deducted from the corresponding share when separated), should appropriate one of the shares, or a fourth of the residue so made up, after deducting therefrom the amount with which his deceased son Roswell was charged on his books, to be held for the benefit of his grandchildren Roswell Lyman Colt, junior, Maria Theresa Colt and Margaret O. Colt; the property to be held by his executors and the survivor of them, and the executor or administrator of the survivor, in trust, first, for the purpose of properly and handsomely supporting and giving a good education to each of those grandchildren, and, as the grandchildren should respectively arrive at majority, to pay each of them his or