(Supreme Court of New Jersey. Jan. 25, 1917.) this state, this award and all proceedings touch

A resolution passed by a board of chosen freeholders, providing that an award of a contract for the improvement of a county road be not binding, if chapter 285 of the Laws of 1916 was adopted by the voters of the state; that, in On November 24, 1916, at a special meetthe event said law was adopted by the voters ing of the board of chosen freeholders of of the state, the award and all the proceedings Atlantic county, another resolution was passshall be null and void. The resolution was passed November 8, 1916. The above act was ed, viz.: That the above proviso be repealed, adopted by the voters of the state at the elec- disposed of, set aside, and for nothing holdtion November 7, 1916. On November 24, 1916, en, so that the board may proceed with the at a special meeting of the board, the above entering into a contract with Messrs. Liddle resolution was repealed, disposed of, set aside, and for nothing holden. A contract was award- & Pfeiffer according to the terms of their ed under the original advertisement for bids. bid, and be it resolved that the above pro

viso "be repealed, disposed of, set aside, and that it shall be lawful for the board of for nothing holden, and that the contract for making said extraordinary repairs herein mentioned be awarded to Liddle & Pfeiffer for the amount of their bid; they being the lowest bidders."

chosen freeholders to award a contract or contracts for such repairs or reconstruction on bids duly advertised for in two public newspapers, printed and circulating in such county, for two weeks successively, at least once in each week, before the date fixed therein for the receipt of the bids. P. L. 1914, p. 204, § 1. So in the act of 1912, p. 837, § 22. The state commissioner shall advertise for bids which shall state the hour, date, and place where the sealed proposals will be received and publicly opened and read. The commissioner may then reject any or all bids, but the award of the contract, if made, must be to the lowest responsible bidder.

But the voters of the state had adopted the act. Possibly two views are permissible: One, that the award never had any legal vitality because of the condition imposed; the other, that having had vitality, it was lost, when the fact appeared, that the Egan act had been adopted. Either view defeats the award.

It is not controverted that an adjournment may be taken for consideration at a later day, but if there be action or nonaction and no new day is left open for a further consideration, then the transaction is final and concluded. To use the words of the brief:

The problem for solution provided by these resolutions is whether the latter award was legal and binding, so that a contract and sale of bonds thereunder will be legal. The argument advanced on behalf of the board of freeholders is to that effect; the proviso in the resolution of November 8, 1916, attempts to make void the award and all proceedings touching the work therein referred to. The intention of the board could be reconsidered in the same way .as any other intention of such board, according to parliamentary law The board reserved the right in this case and usage. The resolution of November in the advertisement to reject all bids. The 24th, even if not, strictly speaking, a recon-universal practice is to reject all bids, adsideration, is clearly a rescission of the pre-journ to a fixed day for further consideravious action on the proviso, in the resolu- tion, or award a contract. They chose the tion of November 8th; the proviso, in the latter course. They awarded the contract resolution of November 8th, constitutes a upon condition that the Egan bill had not repealer of the proceedings anterior thereto; been adopted by the voters of the state. the resolution of November 24th constitutes a repeal of such repealer, which, therefore, in accordance with well-established law, revives such anterior proceedings. The fact is the board of chosen freeholders passed upon the question of the lowest bidder and of the formality of the bid and awarded the contract to Messrs. Liddle & Pfeiffer, subjecting it, however, to a condition not contemplated by the bidder and not embodied in the advertisement for bids and which the board of chosen freeholders could not enforce against the bidder without his consent. The award must follow the terms of the advertisement. Armitage v. Mayor, etc., of Newark, 86 N. J. Law, 5, 90 Atl. 1035. The action of the board on November 8th was neither an award of the contract, in accordance with the terms of the advertisement, nor was it a rejection of all bids by the board. On the 24th of November the board again met in special session, and then took the action which it was their duty to take, by determining to award the contract to Messrs. Liddle & Pfeiffer, and not to reject their bid. Meanwhile the bid of Messrs. Liddle & Pfeiffer had not been withdrawn, but was a continuing one and subject to acceptance by the board; as the action of the board of freeholders on November 8th is susceptible of the view that a valid award was then made under the resolution, for the reason that the board was without power to impose a condition not contained in the notice to bidders or the plans and specifications, and inasmuch as it undertook to make an award, that part of the resolution containing the unauthorized proviso was void and of no effect. In either event a valid award was made to Messrs. Liddle & Pfeiffer on the 8th or 24th of November, 1916. This argument is more ingenious than sound.

"The award of November 8th was something or nothing. If something, it was final; if nothing, it could not be revived by the action on November 24th."

While I am not aware of any statute or decision that either permits or forbids these public contracts to be awarded upon conditions, i. e., depending upon the happening or not happening of events not connected with the subject-matter of the contract, on grounds of sound public policy, contracts so awarded should be declared void. If the award can be made to depend upon one condition, why not on two or many? If this condition in the award can be nullified after 16 days at a special meeting, not an adjourned meeting, why not after 30, 40, or 60 days, and so on, until the award of the contract will be left in confusion and uncertainty, the legality of the bonds issued to pay for the cost impaired? This litigation is an apt illustration of the uncertainty that does arise out of awarding a public contract upon a condition.

The course demanded by all interests, affected in the awarding of these public contracts at the time fixed in the advertisement for receiving and reading the bids, is

bids, or adjourn to some fixed time pub- WALKER, Ordinary. A paper writing licly announced for further consideration. purporting to be the last will and testament Any other course is open to suspicion and of James Pritchard, deceased, was offered uncertainty. If conditions are to be attach- for probate before the surrogate of Moned to the making of an award, such con- mouth county. A caveat was lodged against ditions should be stated in the advertise- the probate by the decedent's heirs at law ments calling for bids, so that the award and next of kin. The parties were duly citof a contract under such an advertisement ed and warned to appear before the orphans' would follow its terms. Armitage v. Mayor, court on the issue of will or no will. After etc., of Newark, 86 N. J. Law, 5, 90 Atl. the cause was transferred to the orphans' 1035. Section 33 of the Crimes Act (2 Comp. court, the caveators, or some of them, petiStats. p. 1756) requires that bids shall be tioned that court to certify the questions inopened in public at the time and place on volved in the controversy into the circuit the day named in the advertisement, and court for trial before a jury pursuant to the public announcement made of the contents statute. The certificate prayed for was in the presence of the parties bidding or granted. their agents. By statute (P. L. 1913, p. 366), in contracts to be paid by state funds exceeding the sum of $1,000, the contract therefor shall be awarded within three days, after the day prescribed for publicly opening the bids.

I am therefore constrained to hold that the award of the contract in this case is void. This makes it unnecessary to consider or decide the other important and interesting points raised by the prosecutors, which were argued orally and at length in the briefs of the respective counsel, representing all parties to this litigation.

Section 18 of the Orphans' Court act (Comp. Stat. p. 3818) provides that the orphans' court may, on application of the caveator, appellant, or proponent, certify the questions involved in proceedings respecting the probate of a will into the circuit court for trial before a jury, and that upon filing such a certificate with the clerk of the circuit court that court shall have jurisdiction to try the cause upon an issue to be framed. The certificate in question was made on March 30, 1916, but, not being filed with the clerk of the circuit court, notice was given on April 8, 1916, of a motion before the orphans' court on April 13th, then instant, to revoke the certificate. On the day the motion was argued, the certificate was filed with the clerk of the circuit court. The judge of the orphans' court held that the circuit court did not have jurisdiction by virtue of the certificate on the day the notice of the motion to revoke it was served. He further held that he had jurisdiction to make the revocation, which was ordered, citing BrothCOURTS 488(4)-WILL CONTEST-TRANSFER ers v. Pickel, 31 N. J. Eq. 647, and Vincent OF CAUSE JURISDICTION OF ORPHANS' COURT.

The resolution awarding the contract to Messrs. Liddle & Pfeiffer is set aside, with costs.

(87 N. J. Eq. 252)

PRITCHARD v. HOWELL et al. (No. 1735.)
(Prerogative Court of New Jersey.
Jan. 18,

1917.)

(Syllabus by the Court.)

The orphans' court, being a court of general jurisdiction, has power to revoke its certificate transferring questions involved on the probate of a will into the circuit court for trial, when the certificate was made without notice of the application therefor to the adversary party, because it is a principle of law that in every proceeding concerning the rights of individuals they are entitled to notice of any motion affecting those rights, even though notice be not directed by the statute under which the proceeding is had.

[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 1322, 1323; Dec. Dig. 488(4).]

Appeal from Orphans' Court, Monmouth County.

Will contest between Augusta R. Pritchard, proponent, and Emma Howell and others, caveators. From an order of the Monmouth orphans' court revoking a certificate transferring the questions involved into the circuit court for trial, caveators appeal. Order affirmed.

Thomas P. Fay, of Long Branch, for appellants. John S. Applegate & Son, of Red Bank, for respondent.

v. Vincent, 70 N. J. Eq. 274, 62 Atl. 700. The reason which provoked the motion to revoke the certificate was that it was made without notice and that no opportunity was afforded the proponents to be heard. In the case of Brothers v. Pickel, Chancellor Runyon, sitting as ordinary, held that the section of the orphans' court act providing for the certification of questions involved in a controversy over the probate of a will was discretionary and not mandatory. And in Vincent v. Vincent, Vice Chancellor Emery held that the orphans' court is a superior court of general jurisdiction and has the same authority over its decrees as may be exercised by any court of general jurisdiction. These authorities, I think, sustain the asserted power of the judge of the orphans' court in this case.

The orphans' court is a court of general jurisdiction over the subjects within its cognizance and partakes of the powers of the chancery and prerogative jurisdictions. In re Hathorn's Will, 97 Atl. 262. In that case I held that the orphans' court had power to vacate its decrees in a probate case.

In Mellor v. Kaighn, 99 Atl. 207 (Court of Errors and Appeals), the difference between the orphans' courts as courts of general jurisdiction, and the surrogate's courts as courts of special jurisdiction, was pointed out, and it was held that a surrogate's ju- HACKENSACK TRUST CO. v. TRACY et al. risdiction is purely statutory, and that where he exercises jurisdiction his power is exhausted and he cannot open or vacate his (Court of Chancery of New Jersey. decree for any cause.

4. CURTESY 5-"INCHOATE RIGHT OF CURTESY."

A husband, after issue born alive, has a vested estate in remainder in his wife's lands. This we now call an "inchoate right of curtesy."

Dig. §§ 11-15; Dec. Dig. 5.]
[Ed. Note. For other cases, see Curtesy, Cent.

5. CURTESY 5-ESTATE BY CURTESY CON-
SUMMATE.

While a husband, whose wife has not borne a child, has neither an estate by the curtesy initiate nor an inchoate right of curtesy in his wife's lands, he has nevertheless a contingent estate in remainder in those lands, because, upborn alive and of the husband surviving the on the happening of the contingency of issue wife, he would be entitled to an estate by the curtesy consummate; that is, a freehold estate in possession for the remainder of his life.

[Ed. Note.-For other cases, see Curtesy, Cent. Dig. §§ 11-15; Dec. Dig. 5.] 6. CURTESY 7-COMMON-LAW REQUISITES. An estate by the curtesy at common law depends upon four essentials: (1) That the wife be seised of an estate of inheritance to which heir of the wife; (2) that the estate be or be issue of the marriage may possibly succeed as come, during coverture, an interest in possession; (3) that seisin in deed (less properly styl

ed actual seisin) be obtained during coverture; that they were further indebted to the comand (4) that issue be born alive. The transpir-plainant on June 28, 1913, in a like sum of ing of these four events constitute the contingency upon which an estate by the curtesy arises, that is, vests, in the husband in possession upon his wife's death.

[Ed. Note.-For other cases, see Curtesy, Cent. Dig. 5; Dec. Dig. 7.

For other definitions, see Words and Phrases, First and Second Series, Curtesy.] 7. MORTGAGES

568-FORECLOSURE-DIS

TRIBUTION OF SURPLUS-PARTIES.

$1,000 and made their mortgage upon the same lands on the last-mentioned date to secure that debt. Such proceedings were had in the cause that a final decree was made and entered on August 12, 1916, in pursuance of which the mortgaged premises were sold by the sheriff for $4,000, leaving $1,680.44 of surplus moneys after the payment of the mortgage debt, principal, interest, and costs. The bill contains no allegation as to the ownership of the mortgaged premises. Mrs. Tracy has filed a petition, in which it is averred that the land sold under the writ of execution in this cause was hers, and that she is therefore entitled to receive the surplus moneys; there being now no lien or incumbrance against the land sold.

A husband and wife executed mortgages upon her separate real estate which were foreclosed and produced surplus money, which retains the character of real estate for the purpose of succession and distribution, and the wife filed a petition praying for the payment of the surplus to her, without making her husband a party thereto and without averring whether or not issue had been borne to the parties. Held, that in these circumstances the husband is a necessary party to the proceedings, as he is entitled to be heard on the question whether, having a If Mr. and Mrs. Tracy have had issue born contingent estate in remainder in her lands, he is entitled to have the surplus money protected alive; then the husband has a vested estate and conserved to admit of his possibly succeed-in remainder in his wife's land. Doremus v. ing to the enjoyment of it after her death. Paterson, 69 N. J. Eq. 188, 193, 57 Atl. 548, [Ed. Note. For other cases, see Mortgages, affirmed 69 N. J. Eq. 775, 61 Atl. 396. And Cent. Dig. §§ 1639-1646; Dec. Dig. 568.] 8. MORTGAGES 568-PLEADING 34(4)CONSTRUCTION AGAINST PLEADER-FORECLOSURE-DISTRIBUTION OF PROCEEDS PARTIES. Even assuming that a husband has no interest whatever in his wife's lands during her life before the birth of issue, nevertheless, on her petition for the proceeds of the sale of those lands, which are real estate for the purpose of succession and distribution, a presumption that there has been no issue born cannot be indulged in her favor, for his position may not be made worse by implication; besides, a presumption cannot be indulged in. her favor on the face of the petition, as it is a rule that in construing a pleading that view must be adopted which is most unfavorable to the pleader. [Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 1639-1646; Dec. Dig. 568; Pleading, Cent. Dig. § 66; Dec. Dig. 34(4).1

the proceeds of the sale of lands retain the character of real estate for the purpose of succession and distribution. Oberly v. Lerch, 18 N. J. Eq. 346; Servis v. Dorn, 76 N. J. Eq. 241, 76 Atl. 246. The petition for surplus contains no averment as to the birth of children; and, even if they have not had issue, the husband nevertheless has a contingent estate in remainder in the wife's lands, as will presently be shown.

In Leach v. Leach, 69 N, J. Eq. 621, 61 Atl. 562, lands belonging to a wife were sold in foreclosure on a mortgage given by her and her husband, and the husband contested the immediate payment of any portion of the surplus to his wife. The parties were mar9. QUÆRE-DEFEAT OF INCHOATE CURTESY. ried in 1878 and had issue, a daughter, who Quare: Can a wife, who has not borne her was still alive. Vice Chancellor Emery decidhusband a child, defeat his possible right to in-ed that the respective interests of the huschoate curtesy, and ultimately consummate curtesy, by reason of the involuntary sale of her land under execution producing surplus money, which money retains its character as land for the purpose of succession?

band and wife in the proceeds of sale were that the wife had an estate for her life with remainder to the husband for his life if he should survive her, with remainder over to the wife in fee, meaning, of course, the wife's heirs, if she predeceased her husband. The application of the wife in the Leach Case was made under the Chancery Act (Comp. Stat. p. 433, § 60), which provides that if

Bill for foreclosure by Hackensack Trust Company against Mary Katherine Tracy and husband. Final decree of foreclosure, and defendant Mary Katherine Tracy files a petition for the surplus moneys. Leave to file amended petition charging petitioner's hus-upon foreclosure there shall be paid into band as a respondent on the question of the distribution of the surplus money. Cornelius W. Berdan, of Hackensack, for person entitled to such estate may make appetitioner.

WALKER, Ch. This is a foreclosure suit. Mary Katherine Tracy and James Tracy, her husband, were the only defendants. The bill alleges that both of them were indebted to the complainant on July 25, 1912, in the sum of $1,000, and made their mortgage upon certain lands in the county of Bergen on that date to secure the debt. The bill also alleges

court any money representing an estate in dower or by curtesy, or for life or years, any

plication for a sum in gross in lieu thereof, and the court shall direct the payment of such sum out of the proceeds of such estate as shall be deemed a just and reasonable satisfaction for the same, and which the person so entitled shall consent in writing to accept in lieu thereof. See, also, Leach v. Leach, 72 N. J. Eq. 571, 66 Atl. 595, which was the same case, on the question of the sum to be paid in gross to the wife.