Fletcher v. Bonnet. master in chancery of New Jersey, personally appeared William C. Blelock, of full age, to me personally known, who being by me duly sworn according to law, on his oath saith that he is the secretary of Hope Manufacturing Company; that John F. Hope is the president of the same, and that the seal affixed to the foregoing instrument is the corporate seal of said company, and that the said John F. Hope, as such president, signed said instrument and affixed said seal thereto and delivered the same as the voluntary act and deed of the said corporation, and by authority of the board of directors of the said company, for the uses and purposes therein expressed, and that he, the said William C. Blelock, did, at the execution thereof, attest the same and subscribe the same as witness thereto. "RICHARD T. MILLER, M. C. C." The only questions raised upon this appeal relate to the validity of this mortgage as a lien upon chattels, and the proof of debts secured thereby. The pertinent provisions of the statute are sections 4 and 9 of the Chattel Mortgage act (Rev. Sup. p. 491), viz. : "SEC. 4. That every mortgage or conveyance intended to operate as a mortgage of goods and chattels hereafter made, which shall not be accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, having annexed thereto an affidavit or affirmation made and subscribed by the holder or holders of said mortgage, his, her or their agent or attorney, stating the consideration of said mortgage and as nearly as possible the amount due and to grow due thereon, be recorded" &c. "SEC. 9. That every chattel mortgage hereafter recorded pursuant to the provisions of this act, shall be valid against the creditors of the mortgagor, and against subsequent purchasers and mortgagees, from the time of the recording thereof until the same be canceled of record" &c. Mr. Thomas E. French and Mr. Martin P. Grey, for the appellants. Mr. John J. Crandall, for the respondents. The opinion of the court was delivered by DIXON, J. The first ground for attacking this mortgage is that the affidavit annexed to it was not made by the proper person, and the vice-chancellor so decided. Fletcher v. Bonnet. This decision was erroneous. The affiant was the legal mortgagee, to whom the mortgage was delivered, and who held it and had the lawful right to hold it. Consequently he was "the holder," and as such was, by the plain language of the statute, authorized to make the requisite affidavit. That he may not have had personal knowledge of the truth of the matters stated in his affidavit is not reason enough for distorting this explicit provision. The law requires that the statement shall be true, not that the affiant shall know it to be true. Had the statute not indicated the person who was to make the affidavit, then it might well have been assumed that it was to be made by one cognizant of the facts; but here the person or class of persons is designated, without reference to their knowledge. It may often happen that no person within the class is directly cognizant of "the consideration of the mortgage and the amount due and to grow due thereon," as in the case of an assignee of a pre-existing debt, or an executor or administrator taking security for a debt due the decedent, yet certainly such a person may become "the holder" of a chattel mortgage, and must be competent to make the statutory affidavit. His conscience is charged to the extent of his information; the validity of the instrument depends on the correctness of that information. The second objection to the mortgage is that the affidavit does not state "as nearly as possible the amount due and to grow due" on the mortgage. The affidavit expressly refers to matters stated in the mortgage, and therefore these matters must be regarded as part of the affidavit. Gardiner v. Parmalee, 31 Ohio St. 551; Gilbert v. Vail, 60 Vt. 261; Tompkins v. Crosby, 19 Atl. Rep. 720. So read, the affidavit distinctly indicates the times when designated sums will grow due, and that nothing was due at the date of the mortgage. It is further objected to the claims of the appellants that no proof was made in the cause that the mortgage really represented actual indebtedness. The bill of complaint alleged that there was no such indebtedness, and called on the defendants, the trustee and cestuis que Fletcher v. Bonnet. trust in the mortgage, to answer without oath; the appellants answered that the notes, mentioned in the mortgage as theirs, did represent so much money actually loaned by them respectively to the corporation. No testimony on the point was offered by either side, except that the defendants put the mortgage in evidence and it was received without objection. Assuming that the burden of proof with regard to the nonexistence of the debts did not rest upon the complainants, still we think the debts were proved. The recitals in the mortgage were evidence against the corporation and its subsequent creditors. Webb v. Mann, 3 Mich. 139; State Bank v. Chetwood, 3 Halst. 1; Brown v. Kahnweiler, 1 Stew. Eq. 311; Rev. p. 387 pl. 52. But the force of such evidence against creditors would, at common law, have been overcome by the fact that possession of the chattels remained with the mortgagor, that circumstance being, at common law and in favor of creditors, prima facie evidence of fraud (Miller ads. Pancoast, 5 Dutch. 250), which could not be rebutted without further proof than the mortgage itself afforded of a valuable consideration. But now, under the statute above quoted, chattel mortgages, when recorded pursuant to the provisions of the act, become valid against the creditors of the mortgagor, notwithstanding his retention of possession. In the validity thus established is included the evidential efficacy of all recitals in the instrument with regard to facts that go to constitute the mortgage, among them the indebtedness to be secured. The mortgage now in question having been duly executed, attested and recorded, sufficiently proved the debts due to the appellants. The decree below, postponing the lien for these debts to the claims of the complainants, should be reversed. For reversal-ABBETT, DEPUE, DIXON, GARRISON, LIPPINCOTT, REED, VAN SYCKEL, BOGERT, KRUEGER, PHELPS, SMITH-11. For affirmance-None. 51 620 62 368 Barlow v. Barnard. EMILY BARLOW et al., appellants, v. CHARLOTTE E. BARNARD, respondent. The testator, Thomas Barnard, held to have died intestate as to the remainder of his estate left after the expiration of the life estate of his daughters therein; that there was no devise or bequest of such remainder by the will, and no gift thereof could be implied in this case; that the correct rule as to what is necessary to warrant the implication of such a gift was correctly stated by the vice-chancellor in 5 Dick. Ch. Rep. 135, but held that this case is not within that rule. On appeal from a decree advised by Vice-Chancellor Van Fleet, whose opinion is reported in Barnard v. Barlow, 5 Dick. Ch. Rep. 131. Mr. John Linn, for the appellants. Messrs. Riker & Riker, for the respondent. The opinion of the court was delivered by ABBETT, J. This is an appeal from a decree of the chancellor on a bill filed for the construction of the will of Thomas Barnard, deceased, and for directions as to the execution of its provisions. The will is dated January 17th, 1860. The testator died October 7th, 1877. When the will was made he had a wife, four daughters and two sons: Emily, aged twenty-six, and then married; Charlotte Ellen, aged twenty-two, then and still unmarried: Mary Letitia, aged twenty years, then married; Alice Isabel, aged ten years, married in 1876, and who died before her mother, leaving two children, Lucy and Nellie Haring; Alfred Thomas, aged eighteen, and Arthur Clay, aged fourteen. Charlotte, the widow of deceased and his sole executrix, died January 5th, 1890. The following members of the family were Barlow v. Barnard. then living, viz., the two sons; the grandchildren, Lucy and Nellie Haring; Emily Barlow, widow of John S. Barlow, who has one child, Ida G. Cockshaw; Mary L. Treadwell, wife of William A. Treadwell, who has one child, Grace, wife of George A. Treadwell; and Charlotte E. Barnard, still unmarried. When Thomas Barnard died all his children were of full age, the youngest being over twenty-seven. When he made his will two of his children, both daughters, were over age; one was married and the other unmarried. His third child, a daughter, was nearly of age and married, and the other three children, two sons and a daughter, were minors. The will, after giving to his wife, for her life, all the real and personal estate of which he should die possessed, proceeds: "I wish and will at my death that all property of whatever kind of which I may die possessed may as soon as practicable, be realized and settled securely on her in some safe investment, the interest of which I trust in God will comfortably support her, the principal to be untouched, unless the interest of that left be too small for her support, at her death I will it to be kept in the same shape or form, for the support of the children, not of age or married; on the marriage of my four daughters, I will it to be equally divided between the said four girls and the share settled on each of them for their lifetime; all and except one dollar each to my two sons, trusting that they will follow my example of industry to gain what they may require." The learned vice-chancellor, in construing this will, held that, after the life provision for the widow, the provision for support was intended to embrace both minor daughters and sons, and likewise unmarried adult daughters, but not unmarried adult sons, and that, under this construction, the unmarried daughter is entitled to the benefit of the provision for support; that she has a right to be supported, so long as she remains single, out of the income of the testator's estate, but not to its whole income unless it is only sufficient to give her a proper support according to her rank and condition in life. He held that there was no gift of the income, either directly or by implication, and holds that there is not the least indication that the testator meant, as the class (his children) diminished in number, the survivors should take the whole. He further says: "My conclu |