by any designing person before administration could be obtained, and thus those entitled to the estate be defrauded. It must be within the power of this court to prevent so obvious and gross a wrong."

Further analysis is unnecessary, but oth-1 case a court of equity has power to appoint er leading cases which enforce the same rule a receiver to conserve the property, and strictly are: West v. Howard, 20 Conn. 581; that, "If it had not such power, there would Lawrence v. Wright, 23 Pick. (Mass.) 128; be a failure of justice. The property would Woodin v. Bagley, 13 Wend. (N. Y.) 453; be liable to be taken away out of the state Caleb v. Mearn, 72 Me. 231; Lee v. Gibbons, 14 Serg. & R. (Pa.) 105; Champollion v. Corbin, 71 N. H. 78, 51 Atl. 674; Douglass v. McCarer, 80 Ind. 91; Pond v. Sweetser, 85 Ind. 144; Somervaill v. McDermott, 116 Wis. 504, 93 N. W. 553; Palmer v. Palmer, 55 Mich. 293, 21 N. W. 352; Davis et al. v. Corwine and McGuire, Ex'rs, 25 Ohio St. 668; McChord v. Fisher's Heirs, 13 B. Mon. (Ky.) 194; Davidson v. Potts, 42 N. C. 272; Lea-ience and injustice, if they [the legatees or mon v. McCubbin, 82 Ill. 263.

These authorities are conclusive of the case at bar. If the defendant embezzled and misappropriated the property of Dr. Buchanan, investing it in the real estate, bank stock, and other property described, she may be liable to the legally qualified personal representative of Dr. Buchanan, but not to the complainants.

On the same principle that permits a cestui que trust to maintain actions which his trustee should bring when the latter neglects or refuses to bring them, the only ex

ception to the rule above stated arises when, although there is an adminstrator, he neglects or refuses to prosecute suits for the

recovery of his decedent's estate. In such case, the next of kin may sue to recover the property, joining the personal representative

as a party defendant.

With Hansford v. Elliott, supra, also relied upon by the Vice Chancellor, we likewise agree so far as the court there said: "It would be productive of much inconven

distributees] could not avail themselves of their equitable rights to enjoin a sale (as in the present case), or to prevent other irreparable mischief, before an administration of the estate could be obtained, or where an executor or administrator should be indisposed to interfere." But further than this

we decline to follow this case as an authority, because the judgment apparently affirmed a decree in favor of the complainants for a distribution of the property in question.

The recent case of McCarter, Atty. Gen., V. Clavin (N. J. Ch.) 66 Atl. 599, in our Court views herein expressed, but well illustrates of Chancery, is not only consistent with the the precise situation to which the rule of Flagler v. Blunt is applicable. In the Clayin Case the deceased died seised of real es

lost.

tate of value, and the defendant, claiming The complainants contend that the decree to be a creditor of the deceased, had obtainmay be supported upon the doctrine that the ed letters of administration, but had pernext of kin of a decedent may obtain an in-mitted the property to be sold for taxes. junction and the appointment of a receiver Foreclosure proceedings had been brought, for the purpose of conserving the property and the property was likely to be entirely of a decedent pending the appointment of an administrator. But in our opinion this principle is inapplicable to the present case. The learned Vice Chancellor apparently adopted this theory of the complainants, citing Flagler v. Blunt, 32 N. J. Eq. 518; Hansford v. Elliott, 9 Leigh (Va.) 79. Although these authorities establish the jurisdiction of a court of equity to conserve property of a decedent in the possession of a third person, yet an analysis of the cases cited and many others shows that this equitable jurisdiction has been assumed only where there is danger of loss if the property, presumptively or actually belonging to the estate, is not protected by an injunction or the appointment of a receiver, pending an application for administration upon the estate. In Flagler v. Blunt, supra, it clearly appeared in a suit by a creditor of a decedent that the defendant was in possession, through a sale made by himself under a claim of ownership, of the proceeds of all the property of which is uncle died possessed, and was about to remove the same from the jurisdiction.

We fully agree with the decision of Chan

Moreover, a paper had been offered for probate as the will of the deceased, giving rise to litigation that threatened to be protracted. The state claimed the property by escheat, and filed a bill asking that a receiver be appointed to collect the rents and to pay off and discharge the taxes. The prayer was granted, the Vice Chancellor holding that: "Equity would seem to require that a receiver should be appointed to protect the property from loss, and to hold it for the benefit of those to whom it may be finally determined it belongs. The property is in great danger of loss owing to tax sales and threatened foreclosure. It is clear that, in the absence of an heir, in the absence of an executor or of any lawful appointee entitled to hold the property together, it will be lost, and, in any event, the rents and profits will be misapplied."

*

Flagler v. Blunt, supra, and like authori ties go no further than to maintain that creditors or next of kin of a decedent my appeal to equitable jurisdiction to conserve a decedent's property, which is in danger of loss, pending the appointment of a personal representative, or during the trial of title to

the personal representative of the decedent The only persons engaged in carrying it on is a party.

were the doctor and the defendant. This raises the presumption that they were the partners. Most of the property was purchas

time. The defendant presumably was entitled to half the earnings. There is nothing to show that her investments exceeded that. But if they did, there is nothing to justify the conclusion that she fraudulently, and without the knowledge of her partner, abstracted more than her share from the partnership funds. On the contrary, the presumption is that the excess, if any, was appropriated by her with the knowledge and approval of the doctor, particularly in view of the relation existing between them.

But essentially different is the contention that creditors or next of kin may dispense altogether with a personal representative, ed by the defendant during the doctor's lifeand proceed, either at law or in equity, to recover, in their own name and for their own use, property alleged to belong to the estate of the decedent, and that in the same proceeding they may have the title adjudicated and a decree entered ousting a third party of title and possession, whether the decree is that such third party shall deliver to an administrator to be appointed or otherwise. This theory of the law has been rejected by a long line of authorities, which follow Lord Chancellor Hardwicke's vigorous declaration in 1737 (Bickley v. Donington, So, as to all investments made during the supra) that such a proposition is "totally im- life of the doctor, there is no presumption proper and inconsistent with the principles that they were made in fraud of his rights. of law." It was upon the view of the law This includes 14 shares of stock of the condemned by Lord Chancellor Hardwicke Farmers' & Mechanics' National Bank of that the bill was framed, the case was tried, Philadelphia; 21 shares of stock of the Kenand a decree was entered finally adjudicat-sington National Bank of Philadelphia; 16 ing upon the title to the property described shares of stock of the Manufacturers' Natherein, by the terms of which defendant tional Bank of Philadelphia; 6 shares of was ousted of title and possession of the stock of the Corn Exchange National Bank property standing in her name, leaving her of Philadelphia; 13 shares of stock of the

no alternative but to deliver the same to an administrator when appointed. Such decree, as matter of law, cannot be upheld.

The result of this determination as to the law would be to dismiss the bill, if the is

sue of law had been presented by demurrer. But although, for the reasons stated, the bill cannot be maintained in its present

Market Street National Bank of Philadel-
phia; the proceeds of the sale of the real
property in the city of Brooklyn, state of
New York, designated as No. 1129 Forty-
As to invest-
Second street, in said city.
ments made from the proceeds of the sale
tion is that, as to one-half of it, the defend-
of the business after his death, the presump-
ant holds such proceeds in trust for the doc-
tor's estate, for the reason that, as the doc-
tor had a half interest (presumably) in the
business, his estate was entitled to half of
Complainants
the proceeds of its sale.
therefore, should be permitted, if they de-
sire, to amend their bill for the purpose of
applying for a receiver appointed to take
possession of so much of the property as
represents the one-half of such proceeds of
the business, and hold the same until an
administrator of the estate shall be appoint-
ed and an opportunity afforded him to liti-
gate the question of the true ownership of
this part of the property.

form, justice requires that the complainants be permitted to amend its frame so that it seeks for the appointment of a receiver to conserve the property, which is the subject of the litigation, until an administrator of the estate of Dr. Buchanan shall have been appointed and the true ownership of the property determined by judicial decision, provided the proofs which have been submitted raise a presumption that the property is that of that estate. We have therefore examined these proofs for the purpose of determining whether such an amendment should be permitted. They are quite fully set out in the opinion below, and a full recital of them here is unnecessary. We quite agree with the Vice Chancellor that the story told by the defendant of the way in which she came into possession of the property must be rejected as false, and, further, that the proofs justify the conclusion that the property was purchased with moneys which came out of the business of Buchanan & Co. But this alone will not support the presumption that this property belongs to the estate of Dr. Buchanan, rather than to the defendant. The business was that of appointment of an administrator, who may Buchanan & Co. The name raises the pre-litigate the claim of ownership of this por sumption that it was a partnership business. tion of the property.

The decree of the court below is accordingly reversed, with costs, and the cause is remanded in order that the complainants may, if by counsel so advised, reframe their bill of complaint in accordance with this opinion and apply for a receiver to take possession of so much of such property as it shall appear are such proceeds of the sale of the business since the death of Dr. Buchanan, and to hold the same pending the

BOARD OF HEALTH OF STATE OF NEW
JERSEY v. INHABITANTS OF TOWN

OF PHILLIPSBURG.

fact does render, such waters injurious to health, and tends to pollute, and in fact does pollute, the public supply of water for domestic use in the city of Trenton; that

(Court of Chancery of New Jersey. Jan. 30, these acts are directly within and subject

1909.)

to the provisions of an act of the Legislature entitled "An act to secure the purity of the public supplies of potable waters in this state," approved March 17, 1899 (P. L. p.

MUNICIPAL CORPORATIONS (§ 708*)-SEWER. Every municipality having a public sewer, or system of sewers, drain, or system of drains, legally constructed at the date of the passage of "An act to secure the purity of the pub-73), and that the town of Phillipsburg in lic supplies of potable waters in this state" approved March 17, 1899 (P. L. p. 73), is, under the first proviso of the first section, exempt from the provisions of the enacting clause, and therefore is exempt from the provision against dumping refuse on the bank of a river, as well as from the provision against discharging sewage into it; the clearly expressed legislative intention being to exempt such municipalities from all the provisions of the act.

[Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. § 708.*]

(Syllabus by the Court.)

Application by the State on the relation of the Board of Health of State of New Jersey against the Inhabitants of the Town of Phillipsburg. Application for preliminary injunction. Application denied.

Nelson B. Gaskill, Asst. Atty. Gen., for complainant. J. I. Blair Reiley, for defend

ant.

WALKER, V. C. The bill alleges that

operating and maintaining the dumps directly violates the provisions of the act. The defendant does not deny the maintenance of the dumps in question, but contends that no factory refuse, but only domestic and store refuse, is deposited thereon; that because the town of Phillipsburg has a public sewer system constructed under municipal authority, discharging its drainage and sewage into the river, it is within the first proviso of the act, and is therefore not liable to be enjoined in this suit; further, that it would be futile and inequitable to enjoin the town from using the dumps while the refuse of the city of Easton, Pa., just across the river, having a population of about three times that of the town of Phillipsburg, is being dumped into the channel of the Delaware by boats and from wagons driven out upon the bridge which connects Easton and Phillipsburg.

the town of Phillipsburg, maintains on the The act of the Legislature under which easterly bank of the Delaware river two the bill was filed (P. L. 1899, p. 73) provides, garbage dumps, one of which is located at among other things, in its first section that the southerly extremity of the town, at the no sewage, drainage, domestic or factory rejuncture of Lopatcong creek and the river. fuse, excremental or other polluting matter and the other at the northerly end of the of any kind whatsoever which, either by ittown, on which dumps the municipal authori- self or in connection with other matter, will ties place and deposit, and suffer to be placed corrupt or impair, or tend to corrupt or imand deposited, and suffer to remain, domestic pair, the quality of the waters of any river, and factory refuse, consisting of ashes, de- brook, stream, or other reservoir from which cayed vegetables, house rubbish of all kinds, is taken, or may be taken, any public supply tin cans, old clothes, discarded shoes, bro- of water for domestic use in any city or othken barrels, glass bottles, and in fact every- er municipality of this state, or which will thing which might be considered as domestic render, or tend to render, such waters injurland factory refuse, which refuse in normal ous to health, shall be placed in or dischargtimes, by reason of the natural slope of the ed into the waters of any such river or other ground at the two dumps, will and does find reservoir above the point from which any its way into the waters of the river, and in city or other municipality shall or may obtain case of freshets is washed directly into the its supply of water for domestic use, nor shall waters of the river; that the city of Tren- any such sewage, drainage, domestic or facton now is, and for some time past has tory refuse, excremental or other polluting been, supplying its inhabitants with water matter, be placed or suffered to remain on for domestic use, and obtains its public sup- the banks of any such river or other reservoir ply of water from the Delaware river be- above such point. The proviso under which low the town of Phillipsburg; that by reason it is claimed the town of Phillipsburg is exof the refuse so placed and suffered to re-empt enacts that the provisions mentioned main on the banks of the river at Phillipsburg, and the finding of its way into the waters of the river, those waters are greatly polluted, and the refuse so placed and suffered to remain on the banks of the river, and finding its way into the waters of the river, tends to corrupt and impair, and in fact does corrupt and impair, the quality of the water, and tends to render, and in

shall not be held to apply to any city or other municipality of the state which at the date of the passage of the act had a public sewer or system of sewers, drain, or system of drains, legally constructed under muncipial authority, discharging its drainage or sewage into any such river or other reservoir. The public sewerage system of the town of Phillipsburg was, in fact, constructed under prop

* *

which

or system of sewers
structed *

municipality

has a public sewer

* legally condischarging its drainage or sewage into any such river." The statute is penal in character, and doubtless remedial also. The section authorizing the State Board of Health, instead of proceeding to recover the penalty prescribed for violation of the act, to file a bill in chancery in the name of the state, on the relation of such board for an injunction to prohibit further violation appears to be remedial. The general rule for the construction of provisos in statutes is that they are strictly construed, and take no case out of the enacting clause which does not fall fairly within their terms; but in penal statutes the provisos must be liberally construed. And this, subject to the cardinal rule that the court must, if it can, give effect to the legislative intent to be gathered from the whole act. Am. & Eng. Ency. of L. (2d Ed.) vol. 26, p. 680.

er authority prior to the passage of the act., to apply to any The Attorney General argues that the proviso is not a shield to the town, and that it extends no further than to permit of the maintenance of the sewerage system which was lawfully constructed before the passage of the act, and that the proviso was plainly intended to preserve the usefulness and legality of a sewerage system, which could not lawfully be constructed in the face of the statute, and that, as the proviso is only meant to protect an established system of sewers and drains, legally constructed under municipal authority, it is not intended to permit a municipal corporation which has such a system to place, or suffer to remain, upon the banks of a river, domestic or factory refuse, excremental or other polluting matter which, either by itself or in connection with other matter, will corrupt or impair, or tend to corrupt or impair, the quality of the water in such river for potable purposes; and he contends that the only rational way to read the proviso, as In Van Reipen v. Jersey City, 58 N. J. Law, it mentions only sewage and drainage, is, 262, 267, 33 Atl. 740, 742, the Supreme Court that it does not affect deleterious matter said: "The proviso of an act is sometimes dumped on the river bank, which it does not resorted to for the interpretation of ambigmention. I am unable to adopt the construc- uous or doubtful language in the enacting tion contended for by the Attorney General. clause, but there is nothing ambiguous or The enacting clause provides that no del- doubtful for interpretation in this case." So eterious matter shall be discharged into the in the case in hand there is nothing ambigwaters of a river used for potable purposes, uous or doubtful either in the enacting clause and that no polluting matter shall be placed or in the proviso. Regarded either as a reor suffered to remain upon the banks of such medial statute, in which case the proviso is river. It is plausibly, but not convincingly, to be strictly construed, or as a penal act, in argued that as the proviso excepts from the which case it is to be liberally construed, operation of the enacting clause municipali- the defendant prevails, because there is no ties having a public system of sewers, legally ambiguity discoverable in the enactment; constructed, the only exception intended is as the clearly expressed legislative intention be to a sewerage system, because it would be ing to except from all the provisions of the unjust to have authorized a municipality to act such municipalities as had sewerage and expend its money in the construction of a drainage systems at the time of its approval. sewer emptying into a river, and to now re- There is nothing to construe; nothing to inquire that sewer to be closed and discontinu- terpret. The defendant is clearly within the ed, thereby casting large and unnecessary exemption in the proviso. If we were reexpense upon a given municipality, and per- quired to go outside of the words, and look haps breeding pestilence therein by the for- to the subject-matter as an aid in interprecible discontinuance of such a public neces- tation, it would be found to be at least, sity as a system of sewers. But it is to be if not more reasonable to say that the Legisobserved in this connection that the act | lature intended to except municipalities havin question does not provide that, where ing the required sewerage system from the there is an existing sewerage system, another method of sewage disposal shall be adopted by the municipality, and then the existing system discontinued. On the contrary, the only provision is one whereby it is rendered impossible for municipalities thereafter to lawfully build such sewerage systems. And it is urged that all that is intended to be protected by the proviso is an existing sewerage system, and that the additional pollution of the water resulting from the dumping of deleterious matter on the river banks is prohibited without qualification. To this I am unable to assent. There is nothing ambiguous about the pro.viso.

Its language is as plain as it is gen

provision against dumping upon the banks of a river, as well as against sewering into it, because it would be more or less absurd to enjoin the dumping of deleterious matter upon the banks of a stream into which an unlimited quantity of filth could be discharged through the sewers. In other words, it seems reasonable that the Legislature should have intended that in the case of municipalities lawfully discharging sewage into a river from a given area and thereby polluting the stream, the same municipality, if it chose, might dump refuse upon the banks of the stream, for thereby its waters would doubtless not be any more effectually polluted. If a town is permitted to discharge

er system, it seems almost absurd to say, violation, and not to the date of the adoption that that may continue, but that the dumping of the by-laws, rules, or regulations. of refuse upon the bank shall be prohibited because the refuse may find its way into the waters and corrupt, or tend to corrupt,