of the maker, for the payee bound itself as indorser. The only apparent object was to get the paper into the hands of one against whom the defense of fraud in its inception would not be available. If it is conceivable that a banker might make such a discount without thinking of this, it is certainly not inconceivable that he probably would think of it and would understand what was behind the transaction. If the jury so found, they would also find that bona fides was wanting. Hallock v. Young, supra. Another fact which might be considered as significant is that the cashier did not testify that when the discount was made he believed the paper to be free from infirmity. The jury might find that everything he testified to was true, and also find against the plaintiff upon the vital fact to which he did not testify. It could be found that he bought the paper exactly as represented, yet well understanding that the payee's object in selling at a large discount was to cut off defenses. No proof of good faith was offered, except by way of inference; and where inferences are to be drawn the case is for the jury. Burnham v. Railroad, 69 N. H. 280, 283, 45 Atl. 563. Especially is this true when as in this case, direct evidence upon the question was available and was not put in by the party who seeks to have the inference drawn. The cashier was a competent witness upon the question of his innocence in taking the paper (Janvrin v. Fogg, 49 N. H. 340, 353), and his failure to testify to it was sufficient to warrant a finding of bad faith. It is also significant that he did not testify that the transaction was in the usual course of business. 1. GIFTS 22-DELIVERY OF DEED DELIVERY OF PROPERTY CONVEYED. her child or children in equal shares per capita, on or after the expiration of all life interests in said property," the termination of the life estates determined the time when the property should vest in the beneficiaries, and only chillife estates were to be participants in the settledren born to M. prior to the conclusion of the ment. Transferred from Superior Court, Merrimack County; Marble, Judge. Petition for instructions by Samuel W. Curriden and others, as trustees of a fund, John P. H. Chandler and others being joined as defendants. Transferred from the superior court. Petitioners advised, and petition discharged. Petition for instructions by Samuel W. Curriden, of Washington, D. C., John D. Bridge and Edward N. Pearson, both of Concord, in said county, trustees of a fund created by the late William E. Chandler. The trustees join as defendants John P. H. Chandler, his wife Madeleine V. Chandler, and his minor son John P. H. Chandler, Jr., all of Portsmouth in our county of Rockingbeen appointed guardian ad litem of John Elwin P. Page of said Concord has ham. P. H. Chandler, Jr. The petitioners represent: That William E. Chandler, late of said Concord, died November 30, 1917, leaving three sons by a first wife, Ann C. Chandler, namely, Joseph G., William D. and Lloyd H. Chandler, and one son by a second wife, Lucy L. Hale Chandler, namely, the defendSaid Lucy L. ant John P. H. Chandler. Hale Chandler predeceased him in the year 1915, and he never had any other children by either of said marriages. That by and under a marriage-settlement deed of trust dated December 23, 1874, on the eve of his marriage to said Lucy L. Hale Chandler, said William E. Chandler transferred certain bonds and other intangible personal property to trustees for the following purposes: To pay the income to said Lucy L. Hale Chandler during her life; with the right to use portions of the principal under certain circumstances. Upon the death of said Lucy L. Hale The delivery of a deed of gift under seal is Chandler: (a) To pay to each child of such deemed to be a delivery of the property convey-second marriage a preliminary share of the ed, especially where it is not in the power of the grantor to make a manual delivery; the property being trust funds in the possession of trustees. 2. GIFTS 4-CONSIDERATION UNNECESSARY. A gift perfected by delivery of a deed of gift is complete, although made without consideration. 3. TRUSTS 124-TIME OF DETERMINING BENEFICIARIES. principal equivalent to the amount of principal which any one of the donor's three sons by his first marriage might realize from a certain other trust fund previously established by him for their sole and equal benefit; and (b) to pay the residue of the principal in equal shares to all the donor's children by both marriages, or in default of such children to his heirs at law; with the provisions that- Under a deed of settlement, "the property "In determining any question arising under hereby conveyed to be held by the said M. and this trust deed, the children of any of my chil (108 A.) dren shall be deemed as entitled to the parent's [ for the benefit of unborn children, and was share." By a subsequent agreement between the parties in interest, in which the defendant John P. H. Chandler joined on attaining his majority, the time for distribution of the fund established by this marriage settlement deed was postponed until the death of said William E. Chandler in case he should, as he in fact did, outlive said Lucy L. H. Chandler. On June 19, 1914, John P. H. Chandler executed and delivered to Madeleine V. Chandler, for the benefit of her and her issue, a sealed instrument of the following tenor: "Boston, Mass., June 19, 1914. "Conveyance and settlement by John P. H. Chandler to and upon his wife, Madeleine V. Chandler, and their son, John P. H. Chandler, Junior, and any other children that may be born to them. "The undersigned, John P. H. Chandler of Warner, Merrimack county, New Hampshire, does hereby convey to and settle upon his wife Madeleine V. Chandler and their son John P. H. Chandler, Junior, and any other children that may be born to them, all the right, title and estate of the said grantor in and to any of the securities and property now held in trust by Samuel W. Curriden and Crammond Kennedy of Washington, D. C., under and by virtue of a deed of trust made for the benefit of his sons, by William E. Chandler in the year 1874 upon the occasion of his marriage to Lucy Lambert Hale; the property hereby conveyed to be held by the said Madeleine V. Chandler and her child or children in equal shares per capita on and after the expiration of all life interests in said property. "[Signed] John P. H. Chandler." The trustees of the Chandler fund at that time were duly notified of this conveyance and settlement; but it was supported only by a moral, as distinguished from a valuable, consideration so far as the petitioners can ascertain. At the time of its execution, the defendant Madeleine V. Chandler was of full age, but the defendant John P. H. Chandler, Jr., was and still is a minor, and, while no other children have since been born to Madeleine, she is still of child-bearing age. The trustees now hold securities and cash to the value of approximately $80,000 belonging to said fund, they have concluded an agreement with all the donor's sons and the defendant, Madeleine V. Chandler, concerning the amount of John P. H. Chandler's preliminary share, and they are ready to settle their account and distribute the fund when judicially advised to whom these preliminary and residuary shares are lawfully payable. But John P. H. Chandler now claims that the conveyance and settlement executed by him June 19, 1914, was invalid and inoperative because it lacked a valuable consideration, because the subject-matter was incapable of delivery, and because it was designed in part not expressly made in the form of a trust, and that said shares should accordingly be paid to him regardless of said instrument. The petitioners desire instructions as to the validity of the conveyance and settlement made by John P. H. Chandler and when and to whom the trust funds are payable. Streeter, Demond, Woodworth & Sulloway, of Concord, for petitioners. Harry J. Brown and William W. Thayer, both of Concord, for John P. H. Chandler and Madeleine V. Chandler. Elwin L. Page, of Concord, pro se. PLUMMER, J. [1] The conveyance by John P. H. Chandler to his wife and children is valid. The fact that there was no delivery of the property conveyed does not render the transfer invalid. The property was trust funds, and was in the possession of trustees. It was not in the power of the grantor to make a manual delivery of the property. He did all that it was possible for him to do in making and delivering to Madeleine V. Chandler a conveyance under seal, and that was sufficient. The deed under seal took the place of a physical transfer of the property. It was the best transfer that the grantor could make under the circumstances. The delivery of a deed under seal is deemed to be a delivery of the property conveyed. Irons v. Smallpiece, 2 Barnewall & Alderson, 551; Kekewich v. Manning, 1 De G. M. & G. 187; Perry on Trusts (6th Ed.) § 102; Hogue v. Bierne, 4 W. Va. 658, 671; Matson v. Abbey, 70 Hun, 475, 477, 24 N. Y. Supp. 284; McCutchen v. McCutchen, 9 Port. (Ala.) 650; Walker, Guardian, v. Crews, 73 Ala. 412; McEwen v. Troost, 1 Sneed. (Tenn.) 186; Caines v. Marley, 2 Yerg. (Tenn.) 582. [2] It is sought to set the conveyance aside because it was not supported by a valuable consideration. No consideration is required to render this transaction valid. The conveyance was a voluntary gift. And a gift not only does not require a consideration, but there can be none, for a gift is “a voluntary transfer of his property by one to another, without any consideration or compensation therefor." Gray v. Barton, 55 N. Y. 68, 72, 14 Am. Rep. 181; 2 Bl. Com. 440; 20 Cyc. 1192. A gift perfected by delivery of a deed of gift is complete, although made without consideration. Ham v. Van Orden, 84 N. Y. 257, 269; Fulton v. Fulton, 48 Barb. 581, 590. The deed of settlement being, valid, it becomes necessary to determine who are the beneficiaries under it, and when their title to the property vests. The vital inquiry is whether the language of the conveyance limits the beneficiaries to the wife of the grantor and their children born before the termination of the life estates, or whether children who might be born after the expiration of the life estates take. [3] The concluding sentence of the deed of settlement is as follows: "The property hereby conveyed to be held by the said Madeleine V. Chandler and her child or children in equal shares per capita on and after the expiration of all life interests in said property." Giving this language its ordinary and usual meaning (Perry v. New Eng. Casualty Co., 78 N. H. 346, 100 Atl. 605), Madeleine V. Chandler and her child or children were to receive the property at the expiration of the life estates. In other words, the termination of the life estates was to determine the time when the property should vest in the beneficiaries. This would indicate that only the children born prior to the conclusion of the life estates were to participate in the settlement. If such were not the intention, the deed of settlement would not contain the provision that the property should vest in the beneficiaries at the expiration of the life estates. A careful consideration of the language of the conveyance leads to the conclusion that only the children born prior to the expiration of the life estates can take as beneficiaries under the deed of settlement. As no children were born between the date of the instrument and the termination of the life estates, the time fixed for the per capita division, it is unnecessary to determine the effect of a voluntary assignment, not expressly made by way of trust, for the benefit of unborn children. The petitioners are advised that the deed of settlement is valid, and that they should distribute the property conveyed by it in equal shares to Madeleine V. Chandler and to the guardian of John P. H. Chandler, Jr. Petition discharged. All concurred. (79 N. H. 273) KELSEA v. TOWN OF STRATFORD. (No. 1595.) (Supreme Court of New Hampshire. Coos. HIGHWAYS 187(2)—STATE-AIDED ROAD NOT FOR DEFECTS. The part of the "West Side Road" established by Laws 1909, c. 155, § 15, as added to Laws 1905, c. 35, in the town of Stratford, held not a "state road" within Laws 1915, c. 48, 1, to exempt the town from liability for injuries upon it, particularly in view of Laws 1903, c. 54, § 5, and Laws 1905, c. 35, § 11, being merely a state-aided road. [Ed. Note.-For other definitions, see Words and Phrases, Second Series, State Road.] Action by Burleigh H. Kelsea, administrator, against the Town of Stratford, resulting in dismissal of the action, and plainti excepts. Exception sustained. Case for negligence. The declaration alleged that the plaintiff's intestate was injured through the negligence of the defendant in failing to properly maintain a certain highway within its limits upon which the deceased was traveling, in consequence of which negligence he was thrown over an embankment. It was agreed that the highway where the accident occurred is a part of what is known as the "West Side Road" as established by chapter 155, Laws 1909. Thereupon the defendant moved that the action be dismissed. The motion was granted, and plaintiff excepted. Drew, Shurtleff, Morris & Oakes, of Lancaster (E. C. Oakes, of Lancaster, orally), for plaintiff. Horace J. Holden, of Colebrook, and Sullivan & Daley, of Berlin (Horace J. Holden, of Colebrook, orally), for defendant. WALKER, J. This action is brought under chapter 48, § 1, Laws 1915, which provides that "towns are liable for damages happening to any person" in consequence of defects in a highway, such as caused the plaintiff's injuries, "upon any highway which the town has the duty of maintaining." Section 2 is as follows: "Towns shall not be liable for such damages happening upon state roads within their borders, nor upon highways within their borders which are constructed or repaired in whole or in part by the state or by state aid, while such construction is in process or repairs being made, nor for thirty days after the construction or repairs are completed, but shall thereafter be liable as provided in section 1 of this act." The defendant's contention in support of its motion to dismiss the action is that the highway upon which the accident happened is a "state road," which, under section 2 of the act referred to, exempts the town from liability for the plaintiff's injuries. The sole question thus presented is whether the highway where the accident happened is a "state road" as that phrase was understood and used by the Legislature in section 2. It is conceded that it was a part of the "West Side Road," which was established by the Legislature in 1909 (Laws 1909, c. 155, § 15, as added to Laws 1905, c. 35), and the argument is that that trunk line road must be regarded as a state road. But this contention is unsound in view of the opinion in Grace v. Belmont, 78 N. H. 112, 97 Atl. 221, Transferred from Superior Court, Coos which, while it related to an accident on the County; Branch, Judge. "Merrimack Valley Road," another trunk (108 A.) road and not a state road, the motion to dis- (93 N. J. Law, 290) YARDLEY et al. v. ESSEX COUNTY line, is much in point in this case, since both roads were established by the same statute. In that case it was determined that the Merrimack Valley Road was a state-aided road, maintained in part by funds of the state and in part by funds of the towns in which it is located, and that Belmont was exempt from liability, because state-aided roads were, at the time of the accident then considered, excluded from the operation of section 6, c. 54, Laws 1903, which was re-(Supreme Court of New Jersey. Nov. 5, 1919.) pealed by the statute under which this action is brought. Previous to that decision, the same result was reached in Hanover v. 1. TAXATION 99-TAXATION OF BONDS DEBurroughs, 215 Fed. 817, 132 C. C. A. 159, which was approved and followed in Grace v. Belmont. The Hanover Case related to the West Side Road which was not deemed to be a state road, but rather a state-aided road. See, also, Miner v. Franklin, 78 N. H. 240, 99 Atl. 647. Moreover, the Legislature has furnished other evidence of much weight, of its definition of state roads. In section 5, c. 54, Laws 1903, certain specified roads which were wholly maintained by the state are declared to be "state highways." In section 11, c. 35, Laws 1905, it is provided that "All state highways shall be constructed and maintained by the state * * and the expense thereof shall be paid out of the money appropriated by the state under this act; and the Governor and council are hereby authorized to make such changes in the routes of existing state highways as they shall think expedient." This language clearly indicated that highways wholly or in part maintained by the towns were not regarded as state highways. See, also, chapter 104, Laws 1907; Opinion of the Justices, 77 N. H. 606, 608, 92 Atl. 550. If, as is claimed by the defendant, the highway in question is a state road and therefore exempt from the liability mentioned in section 1 of the act of 1915, there is a clear conflict between section 1 and section 2. In the first section a town is made liable for certain damages happening on a highway "which the town has the duty of maintaining," a duty imposed upon Stratford with reference to the road where the plaintiff was injured; while in the second section state roads are expressly exempted from such liability. Argument is unnecessary in support of the proposition that the evident purpose of the Legislature in enacting these two sections was to make towns liable for injuries happening on highways supported wholly or in part by the towns, and to exempt them from such liability with reference to state roads located within their territorial limits. All apparent conflict is avoided by this construction. (Syllabus by the Court.) VISED TO EXECUTORS IN TRUST. Bonds which are not expressly exempted by the Tax Act (P. L. 1918, p. 847), nor excluded located in New Jersey and are a part of the unfrom its operation, and which are physically settled estate of a decedent, are taxable at their true value in the taxing district in New Jersey, wherein the decedent resided at the time of his death, even though one of the two executors and trustees of the decedent is a nonresident of New Jersey. (Additional Syllabus by Editorial Staff.) 2. TAXATION 98-"JURISDICTION" OF PROP ERTY SUBJECT TO TAX. 202 of the Tax Law, providing that "all propThe word "jurisdiction," as used in section erty, real and personal, within the jurisdiction. of this state, *** shall be subject to taxation annually," means governmental jurisdiction, which is the equivalent of sovereignty. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Jurisdiction.] Certiorari by Farnham Yardley and Henry W. Montague, executors, etc., of Alfred B. Jenkins, deceased, to review an assessment by Essex County Board of Taxation and others, against bonds devised to executors in trust. Assessment affirmed. Argued June term 1919, before TRENCHARD, BERGEN, and KALISCH, JJ. Albert C. Wall, of Jersey City, for prosecutors. Borden D. Whiting, of Newark, for defendants. TRENCHARD, J. Alfred B. Jenkins died December 29, 1916, a resident of West Orange, N. J. By his will he named as his executors and trustees Farnham Yardley of West Orange, N. J., and Henry W. Montague of Boston, Mass., "and the survivor of them,” and devised to them in trust for certain purposes certain bonds. These bonds were kept by the decedent in his lifetime, and afterwards by his executors, in a safe deposit box in the state of New Jersey, but outside of the taxing district of West Orange, and were physically located in New Jersey, but outside As the West Side highway is a state-aided of West Orange, on October 1, 1918. The es For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes tate is still unsettled. The assessors of West Orange assessed these bonds at their full value as of October 1, 1918, for the taxes of 1919, and that assessment is brought here for review. We are of the opinion that the assessment must be affirmed. The prosecutors ask that "one-half of the assessment and taxes" should be set aside. The substance of their contention is thus stated in their brief: "As the bonds were vested jointly in Yardley of West Orange, and Montague of Massachusetts, only one-half thereof, representing the portion of the estate vested in the resident executor and trustee, was taxable in West Orange." It is also to be observed that the Tax Act provides in section 301 (P. L. 1918, p. 853) for the assessment of property of the nature of that in question. It reads: "The tax on all tangible personal property in this state and on all taxable personal property of nonresidents of this state shall be assessed in and for the taxing district where such property is found. *** Personal property in the possession or under the control of any person as trustee, * executor, * shall be assessed in his name as such, separate from his individual assessment, or in the name of any one of several joint trustees, * * * executors, if the one of them having actual control or possession cannot be ascertained by the assessor; but the personal property belonging to the estate of any decedent shall We find no merit in this contention. be assessed in the taxing district wherein the Of course the fact that in previous years decedent resided at the time of his death, except the assessment was made in accordance with such part of the tangible property thereof as the prosecutors' present contention is of no may be actually located in some other taxing district in this state and assessed therein." consequence in the determination of the present case, which relates only to the legality of It will be seen, therefore, that the aboveof the taxes of 1919. We think this assess-quoted section recognizes that personal propment lawful. erty is either tangible or intangible, and that Section 202 of our Tax Law (P. L. 1918, p. it may be owned by residents or nonresidents. 848) provides that "All property, real and personal, within the jurisdiction of this state, not expressly exempted by this act or excluded from its operation, shall be subject to taxation annually under this act at its true value," etc. From the language quoted it is clear that the property referred to is all property, whether real or personal, and, if personal, whether tangible or intangible. [1, 2] It is conceded that the bonds in question are not expressly exempted by the Tax Act or excluded from its operation. It is also true that the bonds were within the juris diction of this state. The word "jurisdiction," as used in the act, means governmental jurisdiction, which is the equivalent of sovereignty. Central Railroad Co. v. Jersey City, 70 N. J. Law, 81, 56 Atl. 239. That bonds which are physically located in a state (as were these) constitute property within its governmental authority is now settled law. The nonresidence of the owner is not at all controlling. "State tax on foreign held bonds" case, 15 Wall, 300, 21 L. Ed. 179; New Orleans v. Stempel, 175 U. S. 309, 20 Sup. Ct. 110, 44 L. Ed. 174; Wheeler v. Schmer, 233 U. S. p. 434, 34 Sup. Ct. 607, 58 L. Ed. 1030; Hopper v. Edwards, 88 N. J. Law, p. 471, 96 Atl. 667. It provides in effect that if the property is tangible it is assessed where found; if it is tangible or intangible and is owned by nonresidents it is assessed where found; but the personal property (whether tangible or intangible) belonging to the estate of any decedent shall be assessed in the taxing district wherein the decedent resided at the time of his death, except such part of the tangible property thereof as may be actually located in some other taxing district in this state and assessed therein. The prosecutors assume in their brief that the bonds in question are intangible personal property. They make no claim that they are tangible property. They make no claim, and there is nothing to indicate, that the bonds were assessed in the taxing district where they were actually located. It follows, therefore, that since the bonds in question were not expressly exempted by the Tax Act, nor excluded from its operation, and since they were physically located in New Jersey and were a part of the unsettled estate of the decedent, they were taxable at their true value in the taxing district wherein the decedent died, even though one of the two executors and trustees of the decedent was a nonresident of New Jersey. The assessment will be affirmed, with costs. |