Sparks' Case.

nolly) had delayed doing so for the reason that he knew that the intended terms of the will would be unsatisfactory, but that on March 8th, 1898, Mr. Sparks told him that he had made up his mind to give St. Mary's Church $1,000, on behalf of himself and his dead wife, for a memorial window. Father Connolly says he then felt under an obligation to do for Mr. Sparks what he requested. Father Connolly also says that Mr. Sparks stipulated that the former should spend $500 to put a granite railing around his monument, which monument he had already ordered in New York. These two sums-$1,000 and $500-would, to that extent, diminish the residue which would come to Father Connolly.

In regard to the transfer of the real estate to Father Connolly, it is not now a question whether this transaction, inter vivos, would have been vacated had it been attacked, but whether it is evidence of such control over the testator in a collateral matter as to evidence a general domination by the legatee over the testator, in respect to the affair of the execution of the will. Now, if Father Connolly is to be believed, it was the testator who broached the matter of the sale of the real estate, and wished Father Connolly to buy it or to get a purchaser. He says it was in the summer of 1886 that he first spoke of it, and that he spoke of it again in September, 1887. He wished $4,500 for the property, but Father Connolly told him, at last, that he would pay $4,300 for it, at which sum the property was sold. In support of Father Connolly, it appears that Mr. Sparks did wish to sell and requested at least one other person to become a purchaser. The reason for wishing to rid himself of the property in the shape of real estate and turn it into personalty, was probably that he desired to avoid the expense of the reparation of the property, which appears to have fallen into a condition which made them undesirable for tenants without repairs. I do not think the transaction between the parties displays any degree of domination over the mind of the testator. The one feature of the case which calls for special care in weighing the probability of undue influence is the financial relations between the legatee and the testator at the time the will was made. I have already observed that Father Connolly has given, in my judgment, a veracious

1

Sparks' Case.

account of the money of the testator that was put in his care and the number and amount of his notes outstanding as evidence of the reception of such moneys. I think, however, that this money had been all, or in part, used by Father Connolly, possibly for church purposes, so that he would have been put to inconvenience if, at Mr. Sparks' death, he had been called upon to repay it. If this is so, the will, as made, relieved him of this inconvenience. I have considered the force of this view, but taking all the testimony together, I have arrived at the conclusion that undue influence is not proved, and that the decree below should be affirmed.

CASES ADJUDGED

IN THE

COURT OF ERRORS AND APPEALS

OF THE

STATE OF NEW JERSEY,

ON APPEAL FROM THE COURT OF CHANCERY.

MARCH TERM, 1901.

TIMOTHY BURNET, complainant and respondent,

ν.

OLIVER DEAN et al., defendants and appellants.

[Filed June 17th, 1901.]

1. Taxes in the village of South Orange are a paramount lien for three years only from the time they are payable.

2. The acts of 1888 (P. L. of 1888 p. 97) and 1895 (P. L. of 1895 p. 671) are unconstitutional-first, because the title is misleading; second, because the basis of classification adopted by the legislature is illusory.

On appeal of South Orange from a decree advised by ViceChancellor Pitney, whose opinion is reported in 15 Dick. Ch. Rep. 9.

Burnet v. Dean.

Mr. James McC. Morrow, for the appellants.

Messrs. Gallagher & Richards, for the respondent.

The opinion of the court was delivered by

VAN SYCKEL, J.

The bill in this case was filed to foreclose a mortgage held by Timothy Burnet, the complainant, on lands in the village of South Orange, dated April 10th, 1891.

The village of South Orange is made a defendant because it claims a paramount lien on the mortgaged premises for taxes assessed by it for the years intervening between 1877 and the date of the mortgage, and also for certain taxes assessed since the execution of the mortgage up to and including the year 1897. The prayer is that these taxes may be declared not to be a lien.

The only question involved is whether the lien of these taxes is paramount to the mortgage.

The taxes have not been paid since 1874, except the taxes for the years 1897, 1898 and 1899, which have been paid since the bill was filed.

This is a question of statutory construction, as the lien for taxes has its origin in, and is entirely dependent upon, legislative enactment.

There was no general law establishing the lien of taxes, and giving it priority over other encumbrances on land, until the act of March 14th, 1879, was passed. P. L. of 1879 p. 340.

The village of South Orange was incorporated by the act of March 25th, 1869 (P. L. of 1869 p. 645), with very limited powers.

The charter was amended by the act of April 4th, 1872 (P. L. of 1872 p. 1203), and again by the act of 1875. P. L. of 1875 p. 395.

By the twenty-sixth section of the act of 1875 it was provided that the collector of said village "shall collect the taxes in the same manner and at the same time that the taxes in the townships of said county are assessed and collected."

The correct interpretation of this provision is that the taxes

Burnet v. Dean.

in the village shall be collected in the manner, from time to time, provided by law for the collection of taxes in townships, so that any change in the manner of collecting taxes in townships shall apply to the village. Dugan v. Jersey City, 21 Vr. 359; Hohenstatt v. Bridgeton, 33 Vr. 169.

Under the law as it existed prior to 1879 there was no provision making the lien of taxes paramount to that of prior mortgages, and the lien given was lost unless there was a sale for the taxes within two years. This disposes of the lien for the taxes levied prior to 1879, as no such sale was made.

I agree with the view expressed by the vice-chancellor that the act of 1879, making taxes a paramount lien for two years, and the act of March 17th, 1882, extending the lien to three years, are applicable to villages.

Unless, therefore, subsequent legislation has further extended the lien of the taxes in controversy, the village of South Orange has lost its lien for all taxes levied prior to the year 1897.

The act of February 22d, 1888 (P. L. of 1888 p. 97), and its supplement of March 25th, 1895 (P. L. of 1895 p. 671), make the taxes a prior lien until they are paid, and if these laws are constitutional, the encumbrance of the mortgage is subsequent and subject to their payment.

The title of the act of 1888 is "An act concerning taxes and assessments in villages and other municipal corporations governed by a board of trustees, and making same a first lien on real estate and authorizing sale for the payment of the same." The act of March 25th, 1895, is a supplement, with the same title.

The first section of the act of 1888 provides

*

"that such taxes and assessments as may be lawfully levied, imposed or assessed by any board of trustees of any village or other municipal corporation governed by a board of trustees ** shall be, become and remain a first and paramount lien upon the lands or real estate on account of which the same were so levied or assessed, until paid."

This provision makes it clear that the act was intended to apply only to such villages as were governed by a board of trustees and such other municipal corporations as were governed by a board of trustees.