through its committee, having by its acts construed this contract and the specifications, as amended, to permit the omission of the second floor in the banquet hall, cannot now revoke its decision to the injury of the plaintiffs.

As the views that we have expressed require a reversal of the judgment of the Supreme Court, we must consider the objections which the defendant made and which the Supreme Court did not deal with, and the only one which requires any consideration relates to the correctness of the action of the trial court in admitting proof of the value of certain work and materials furnish ed, for which admittedly no written order had been given. We start with the admission of the defendant that $227 was due the plaintiffs, but the balance of the account, made up of several items, the defendant disputed. One of these items is for $70, for which the plaintiffs held a written order, but the defendant claims that this order was given by mistake, because the work which it called

for was included within the contract. This

3. WILLS (§ 55*)-CONTEST-SUFFICIENCY OF EVIDENCE-TESTAMENTARY CAPACITY.

a finding that, at the time of the execution of In a will contest, evidence held to sustain the will, testatrix possessed testamentary capacity.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 137-158, 161; Dec. Dig. § 55.*]

Appeal from Orphans' Court, Burlington County.

Proceedings for the probate of the will of Sarah Baker, deceased. From a decree admitting the will to probate, caveator appeals. Affirmed.

Robert Peacock, of Mt. Holly, for appellant. Ernest Watts, of Burlington, for respondent.

BACKES, Vice Ordinary. This is an apof Burlington county, admitting to probate peal from the decree of the orphans' court the last will and testament of Sarah Baker, deceased.

low on the ground that the testatrix was in[1] Probate was contested in the court bethe plaintiff's denied, and that question was will. That the testatrix for a considerable sane and therefore incompetent to make a submitted to the jury. There were three oth- time and up to two years prior to her death er items for which the plaintiff produced no written orders, nor offered any proof to take that she had delusions and illusions concernbore bitter hatred towards a neighbor, and them out of the rule laid down by this courting him, is established, but that they gradin Landstra v. Bunn, 81 N. J. Law, 680, 80 Atl. 496, and therefore they should not have ually dissipated after she moved from his been submitted to the jury, and the motion neighborhood may be gathered from the eviof the defendant's counsel to reject all evidence, and it does not appear other than that, dence relating to their cost or value should have been allowed, and the hardship of this ruling by the trial court is manifested when we consider that, if they had been eliminated, then the verdict for $297 could well be said to have been made up of the two items, the $227 admitted, and the $70 for which the plaintiffs held a written order; but this court cannot say with any certainty which of these items the jury used to reach the verdict they arrived at, for they were all submitted to the jury for their consideration.

The result is that the judgment of the Supreme Court, as well as the judgment of the district court, is reversed, and a new trial awarded.

at the time the will was executed, they were altogether dispelled from her mind. However this may be, these delusions in no manner influenced testatrix in the making of her will, and cannot serve to defeat it. Lozear V. Shields, 23 N. J. Eq. (8 C. E. Gr.) 509; Hollinger v. Syms, 37 N. J. Eq. (10 Stew.) 221; Middleditch v. Williams, 45 N. J. Eq. (18 Stew.) 726, 17 Atl. 826, 4 L. R. A. 738; Gilman v. Ayer, 47 Atl. 1049; Id., 63 N. J. Eq. (18 Dick.) 806, 52 Atl. 1131.

[2, 3] It is claimed that the delusions included her son, the caveator, whose interest in the testatrix's estate was materially cut down by the last will. Of all of the available witnesses, only one gave testimony from which this might be inferred. He testified that the testatrix met him on the street, six months before her death, and in conversation said that her son had been a good boy, but of late he had turned his back on her and had tried to set people against her, and that he wanted to poison her by putting poison in the well. The trial judge had the opportunity of observing this witness and to judge of the worth of his testimony, and to his judg

ment I shall defer. If the testatrix in fact possessed the unfounded belief that her son wanted to poison her, as stated by this witness, it is strange that she did not make it known to others. To a nurse in the hospital she said that her boy had robbed her. Whether this was a fact or fancy is not

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

shown. It does, however, appear in the evidence that he kept from her a featherbed, which she claimed he stole, and to this she may have alluded in the utterance.

be paid for life to her son, the caveator, and after his death to the Orphans' Home. She had frequently expressed herself that the Orphans' Home should be the chief beneficiary of her estate, and the reason for this is not strange. When a child and orphaned, she and her sister were taken in and cared for by this institution, and it seems to have always been uppermost in her mind that this protector in her early days was entitled to her bounty. There are circumstances in the case which, in a measure, account for the practical disownment of the son. For two. years before this old lady died, he had failed to visit her at her home, or to pay her that respect and filial interest which a son naturally has for an aged mother. He says she was queer and sometimes quarrelsome. This may be true, but they were afflictions which occasionally attend, and are always excusable, in one of advanced years. Doubtless she resented her son's inattention and indifference. She thought, and not without provocation, that he had "turned his back" on her. The undisputed evidence is that, at the time testatrix made her will, there was no manifestation of mental afiliction. In fact, it shows her to have been of clear mind and understanding. Her condition at that time is to be looked to in determining whether she had the capacity to execute it. Gilman v. Ayer, supra. She may have been, and probably was, eccentric, but the evidence is satisfying that she retained her mental vigor and was circumspect to the last. That the will deals unjustly with the son, the caveator, in itself, is of no moment.

Of the witnesses who testified that the testatrix was insane, some of them based their opinion upon the delusions which obsessed her concerning her neighbor; others upon her general appearance and manner of speech; and still another because she had returned to him an article of purchase which, for reasons of her own, she declined to keep and for which she claimed she had already paid the price. Her friends, neighbors, and acquaintances, with whom she came in daily contact, latterly, gave opposite views, and they far outweigh in circumstantial detail and effect the caveator's evidence. That she was careful, accurate, and punctilious in her financial affairs we have the testimony of her son, who unsuccessfully tried to borrow money from her, and of her landlady that she promptly, monthly, paid her rent, and in the exact sum. That she was keen to protest the amount of her taxes, and to dispute à merchant witness' exaction for an implement which she had purchased but refused to retain, is not denied. The witnesses who saw the testatrix during her three days' stay at the hospital just before she died testified that she was mentally alert and intelligent. At the time of her death, she was 75 years of age. The will was executed the day before she died. It was drawn by a scrivener selected by her and to whom she gave all of the necessary instructions. The document was executed with all the formalities required by law. That she comprehended the property she was about to dispose of, the objects of her bounty, and the meaning of the business in which she was engaged and the relation of these factors to the other, and the disposition that was to be made by the will (Bannister v. Jackson, 45 N. J. Eq. [18 Stew.] 702, 17 Atl. 692), is manifested by the document which she directed to be drawn. It provides for her burial in a certain cemetery, for the erection over her grave of a tombstone, and a fund for perpetual care of the burial lot. It then gives to her only son, (Court of Errors and Appeals of New Jersey. the caveator, the sum of $100, to two named great-grandchildren $200 each, at the age of one and twenty, and the residue to her executor in trust, to pay the income to her granddaughter-in-law and the latter's mother for life, with remainder to the Orphans' Home of the State of New York, located at Randall's Island, to be used for the care of the inmates. And, in case the great-grandchildren should die before arriving at one and twenty, their legacies were to fall into the residuum. Her executor was given full power to sell and convey her real estate at public or private sale. In a previous will, executed in 1910, after providing for the burial plot, she gave the residue of her estate, in trust, the income to

"A will may be contrary to the principles of ural and unjust; yet if it appears to have been justice and humanity; it may be both unnatmade by a person of sufficient age to be competent to make a will, and also appears to be the free expression of a sound mind, the courts must uphold it." Middleditch v. Williams, supra.

The decree of the orphans' court will be aflirmed.

(86 N. J. L. 224) TOWNSHIP OF FRANKLIN v. JONES. (No. 19.)

June 15, 1914.)

1. Towns (§ 29*)-OFFICERS COMPENSATIONRECOVERY.

A township could not recover the salary and compensation for services paid its clerk on the ground that his bills for services were not itemized and verified by oath and that the salary was fixed by resolution of the township committee instead of by ordinance, where it did not appear that he was paid any money that ought not to have been paid to him.

[Ed. Note. For other cases, see Towns, Cent. Dig. § 52; Dec. Dig. § 29.*]

2. Towns (§ 29*)-OFFICERS-COMPENSATION -RECOVERY-NATURE OF ACTION.

An action for money had and received is ciples and in general maintainable when one an equitable action governed by equitable prinhas money in his hands belonging to another

which in equity and good conscience he ought to pay to that other, and hence the complaint, in an action by a township to recover money irregularly paid to its clerk, was insufficient where it did not show that the money paid in equity and good conscience belonged to the township.

[Ed. Note. For other cases, see Towns, Cent. Dig. § 52; Dec. Dig. § 29.*]

"The question, in an action for money had and received," the same authority continues, "is to which party does the money in equity, justice and law belong. All that the plaintiff need show is that defendant holds money which in equity and good conscience belongs to him; but if he fails to show such superior right he cannot recover."

It is precisely because the complaint in

Appeal from Circuit Court, Gloucester the present case failed to aver facts showing County. such superior right that it was struck out,

Action by the Township of Franklin and properly so. The question was presented against Wilson T. Jones. From a judgment by a practice motion that raised only the striking out the complaint, plaintiff appeals. sufficiency of a complaint-a question of Affirmed. pleading.

See, also, 80 N. J. Eq. 517, 85 Atl. 347. Harvey F. Carr, of Camden, for appellant. David O. Watkins, of Woodbury, for respond

ent.

GARRISON, J. This appeal brings up a judgment of the circuit court striking out a complaint. The plaintiff is a township. and its complaint is that the defendant from 1893 to 1911 was its clerk and continuously performed the duties of that office, for which prior to 1903 he was paid upon statements currently rendered by him to the plaintiff, and that since 1903 such services were performed under a salary of $200 which was annrly paid to the defendant.

The action is brought to get back the money thus paid to the defendant during a period of 18 years, and aggregating $3,050.27.

[1, 2] There is no allegation that the services were not duly performed, or that any bill presented by the defendant was for an improper amount, or that he has received any money that was not justly owing to him.

The basis on which recovery is sought, as appears by the complaint, but more plainly by the argument of counsel, is that the bills paid by the plaintiff from 1893 to 1903 were not itemized and verified by oath, and that the salary paid from 1903 to 1911 was fixed by resolution of the township committee instead of by ordinance.

If this be so, it may be considered that the plaintiff failed to perform its functions in the manner prescribed by statute. The plaintiff, however, cannot lay hold of its own irregularities for the purpose of recovering moneys from the defendant unless by reason of such irregularities moneys were paid to the defendant that ought not to have been paid to him, so that loss has resulted to the plaintiff. It is only under such circumstances that the action for money had and received will lie, and that, in legal effect, is what the plaintiff's action is. The essential nature of this implied assumpsit is thus stated in 27 Cyc. p. 849, under the title "Money Received":

"An action for money had and received is an equitable action governed by equitable principles (and) may in general be maintained whenever one has money in his hands belonging to another which in equity and good conscience he ought to pay over to that other."

Such a motion is not adapted to the review of municipal action with the object of setting it aside if found to be illegal, and the plaintiff is not in court in the necessary capacity for such a review of its action. As

the actor in the cause, the plaintiff cannot in response to such a motion draw under review collaterally the legality of its own conduct for the purpose of supporting its complaint unless it has averred therein a resulting loss recoverable by it in such action. Such averment, as has been pointed out, must be to the effect that the defendant holds money that in equity and good conscience belongs to the plaintiff, and this essential averment the complaint in the present case conspicuously fails to make.

The question is purely as to the sufficiency of a pleading, and hence is unaffected by the rules of substantive law applicable to the review of municipal action or to cases in which such action is relied upon to maintain a right or to support an executory claim. The judgment under review is affirmed.

A contractor had a contract to build a schoolhouse. He subcontracted a part of the work. A materialman proposed to furnish materials to the subcontractor. The contractor agreed in writing to pay the materialman for such materials "when the work on the schoolThe subcontractor did house is completed." not complete his work. Held, that such agreement constituted no obligation to pay, except out of moneys earned by the subcontractor.

[Ed. Note.-For other cases. see Contracts, Cent. Dig. $$ 1458, 1476, 1477, 1479, 14931507; Dec. Dig. § 319.*]

2.

FRAUDS, STATUTE OF (§ 17*)-PROMISE TO

ANSWER FOR DEBT OF ANOTHER.

Telephone communications between parties stand legally upon the same footing as ordinary conversations, and are not sufficient to charge a defendant upon a special promise to answer for the debt of another.

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 13, 16, 17; Dec. Dig. § 17.*]

Bergen, Kalisch, and White, JJ., dissenting.

No doubt this correspondence may properly TRENCHARD, J. This suit was tried at the Essex circuit. At the conclusion of the be regarded as an agreement to pay the evidence cross-motions were made for a di- debt of the skylight company to the extent rection of a verdict. The trial judge direct-of $1,000, under certain conditions and limed a verdict for the defendant, and the plainitations, but clearly it constituted no obliga

1. JUDGMENT (§ 276*) -- RETURN OF RECORDS-ing, unless the court, in its discretion, shall orDIRECTORY PROVISIONS.

This provision goes back to 1799. Elm. Dig. 540, pl. 15; Pat. 394, § XIII. As originally enacted, it was part of the act relative to the Supreme and circuit courts, and began, "The justice before whom such circuit Judgment for court shall be held," and this language perplaintiff, and defendant appeals. Affirmed.sisted until 1903 (see G. S. p. 2573, § 240), George S. Hobart, of Jersey City (Collins & Corbin, of Jersey City, on the brief), for appellant. Peter J. McGinnis, of Paterson, for respondent.