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patent granteth to the sheriff custodiam comitatus, without any express words to make a deputy, yet hath the sheriff power to make a deputy or under sheriff who may execute all the ministerial parts of the office; for experience, says my Lord Hobart, proves that many sheriffs cannot execute it themselves; from the antiquity, therefore, and the necessity of this office, the law takes notice of him, and on his being appointed the law implicitly gives him power to execute all the ordinary offices of the sheriff himself that can be transferred by law.” It would thus appear that our statute in regulating the method of appointing an under-sheriff recognizes the office, and the right as well as the duty of its incumbent to execute all the ordinary offices of the sheriff. An under-sheriff is a public officer, who, by virtue of his appointment in the manner provided by our statute, is empowered to perform the ordinary duties of the office. Meyer v. Bishop. 12 C. E. Gr. 141, 142.
We are of opinion that an under-sheriff is "a person who holds and exercises the office of a sheriff" within the meaning of section 36 of the act above mentioned. The evil which the act is aimed at would never be reached if the sheriff can delegate the exercise of the ordinary offices of a sheriff to one not subject to the restrictions imposed upon a person who holds and exercises the office of a sheriff. The legislature has specifically provided that the office of sheriff and any other civil otlice are incompatible, and the sheriff cannot remove the inconsistency by appointing a person to do the very thing which the law prohibits him from doing. If this be not so, then the person holding the office of sheriff could, through his official alter ego, exercise the office of sheriff in contravention to the legislative policy concerning it.
The demurrer to the plea of the respondent is overruled.
ELLA DEATOX, APPELLANT, v. BENJAMIN F. DORSEY, AD
MINISTRATOR CUM TESTAMENTO ANNEXO OF THE
Submitted December 5, 1908_Decided June 28, 1909.
A testator in his will provided as follows: "I give
to my wife during her natural life all the income from my real and personal property after all the taxes and necessary repairs shall have been paid, and after her death theu my daughter Martha E. Morris is to become the owner of all that may be remaining of said real or personal property after my wife's funeral expenses and just debts are paid during her natural life, then after her death the said property is to revert to my daughter's nea rest surviving heirs." Held, that the clause "during her natural life" refers to the duration of the estate in testator's daughter, thus limiting the daughter's right to a life estate. Held, further, that a suit at law cannot be maintained against the executor of the deceased husband to enforce payment of the wife's just debts by virtue of the provision of his will, and that the executors of the husband have the right to require the just debts of the wife to be first established by a suit against the wife's executor.
On appeal from the District Court of the city of Camden.
Before Justices GARRISON, PARKER and VOORHEES.
For the appellant, Wilbert V. Pike and Raymond R.
For the appellee, Francis D. Weaver and John B. Kates.
The opinion of the court was delivered by
the city of Camden. The state of the case settled by the julge of that court sets forth:
-This is an action brought to recover from the estate of James H. Morris, deceased, the sum of two hundred and seven dollars ($207), balance claimed by the plaintiff for services
rendered to Martha Morris, widow of said James H. Morris, in her lifetime, as housekeeper at wages alleged to have been agreed upon by contract with Mrs. Morris.
James H. Morris, of Camden, New Jersey, died early in 1896, having first made his last will and testament, duly proved before the surrogate of Camden county on March 3d, 1896, and of record in said surrogate's office in Book S of Wills, pages 50, &c., wherein and whereby he did, among other things, provide :
"First. It is my will and I do order all my just debts and funeral expenses to be duly paid as soon as conveniently may be after my death.
“Second. I give devise and bequeath to Martha Morris my beloved wife during her natural life all the income from my real estate and personal property after all the taxes and necessary repairs shall have been paid, and after her death then my daughter Martha E. Morris is to become the owner of all that may be remaining of said real estate or personal property after my wife's funeral expenses and just debts are paid during her natural life then after her death the said property is to revert to my daughter nearest surviving heirs."
The executor named having died before the testator and the widow having renounced, letters of administration cum testamento annexo were, on March 3d, 1896, granted to John E. Gumby, and on March 16th, 1905, letters were granted to Benjamin F. Dorsey as substituted administrator with the will annexed. The net income of the real and personal property of the testator was paid over by the administrator to testator's widow, Martha Morris, until the latter's death on January 18th, 1907.
This suit is brought for that, as is alleged, on April 2d, 1903, Mrs. Morris engaged the plaintiff, Ella Deaton, as housekeeper, at an agreed weekly wage of $3; on August 27th, 1905, after Mrs. Morris had been stricken with paralysis, she raised the weekly wage to $1, and on December 20th, 1906, to $5; that the plaintiff performed the services as agreed, and at Mrs. Morris' request expended for the household, in August, 1906, the sum of $3, making the total
amount accrued to her under the contract $673, on which she received on account, from time to time, $ 166, leaving a balance claimed by her of $207. The plaintiff duly presented her claim to the defendant administrator for the said balance as due to her under the terms of James H. Morris' will; the administrator refused payment and notified her to enforce her claim by suit.
The case was tried before the court without a jury. The foregoing facts were established to the satisfaction of the 'court, in accordance with the statement in the demand filed by testimony on the part of the plaintiff. Witnesses also testified that Mrs. Morris, shortly before her death, told them, separately, that she owed Ella Deaton about $200 for her services as housekeeper. Vo testimony was offered to controvert the testimony of these witnesses.
For the defendant, the record of the last will and testament of Martha Morris, who died on January 18th, 1907, was offered, wherein it was provided :
“Item 1. It is my wish and I order and direct that all my just debts be paid.
Item 2. In consideration of the faithfulness and constant attention and care of Ella Deaton to me during my. recent years and illness, I give and devise to her, the said Ella Deaton, the house and lot known as No. 1807 South Tenth Street, Camden, New Jersey, and also lot No. 1809 South Tenth Street, Camden, New Jersey."
It was also in evidence that Martha E. Morris, the daughter named in the will of James II. Morris, died about eighteen months after her father's death, by reason whereof his estate goes to a grandniece; that Mrs. Morris was familiar with the terms of her husband's will, but that the plaintiff did not know that Mrs. Morris had made any provision for her in her will
On the ground that the provision made by Martha Morris in her will for the plaintiff was intended and is in satisfaction of any claim for personal attention and care of Martha Morris, rendered by Ella Deaton to her in her lifetime, judgment was rendered by the court in favor of the defendant.