author: Fielder, V. C.

text:
    Evelyn Wentworth Murray, complainant, v. J. E. Mathilde Lewis et al., executors, &c., defendants.
    [Decided June 5th, 1923.]
    1. Th'e provisions of a writing, separate from a will and not attested as a will, cannot be incorporated' into and as part of the will by reference, for the purpose of making a bequest not specified in the will.
    2. A letter signed ;by the testator and referred to' in his will, is not admissible as extrinsic evidence to show the testator’s meaning, intention or understanding different from the legal significance and effect of the will.
    3. Executors take no beneficial interest in a bequest made to them in trust, where the object of the trust is incapable of ascertainment on the face of the will.
    On bill, &c.

      Messrs. Collins & Corbin, for the complainant.

      Mr. Stark B. Ferriss, for the defendants.
   Fielder, V. C.

Gustav H. Gossler died February 24th, 1922, a resident of this state, leaving a will dated February 7th, 1912, which recites that he then resided in New York City. Its pertinent parts are quoted:

“First. After all my lawful debts are paid and discharged I give and bequeath
“Second. To my executrix and executors, who shall qualify, the sum of five thousand dollars.
“This legacy is not to be in lieu of any commissions they may be entitled to. A sealed letter or paper addressed to my executors will be found with this my will, expressing my wishes as to the said sum, but such letter or paper shall not form part of my will.”

By the third clause, the testator devised and bequeathed all the residue and remainder of his estate to his children surviving him, equally share and share alike, the issue of a deceased child to take the parent’s share.

By the fourth and last clause, the testator appointed his daughter, J. E. Mathilda Lewis, executrix, and his friend Adolph Pavenstedt, executor.

After the testator’s death a large unsealed envelope was found containing two smaller sealed envelopes, in one of which was his will, and in the other was the following writing hereinafter called the sealed letter:

“To the Executors of my
“Last Will and Testament
“Referring to the bequest of five thousand dollars made to you in my will dated to-day, I request you to pay that amount over to Mrs. Evelyn Wentworth Murray, living near Somerville, New Jersey, as soon as this sum shall be realized out of my estate.
“Any inheritance tax which will have to be paid on the above amount of the bequest, has to be borne by my estate, as I wish that the whole bequest should be paid over to Mrs. Murray without deductions.
“New York, February 7th, 1912.
“Gustav H. Gossleb.”

The will was prepared on a stationer’s form. The formal parts are printed and the body is wholly in the testator’s handwriting. The sealed letter is entirely in his handwriting and is signed by him, but his signature is not witnessed. The will bears an attestation clause, showing that it was executed and witnessed in conformity with our act concerning wills, and it was duly admitted to probate and letters testamentary thereon were granted to the executors therein named. The sealed letter was not offered for probate as part of the will.

The complainant, Mrs. Murray, is the person named in the sealed letter. She claims the legacy, which the executors refuse to pay, and the bill is filed to have the will, in respect to said bequest, construed, and the executors, who are the defendants, decreed to pay the same to her.

The rule prevailing in England is stated in the leading case of Allen v. Maddock, 11 Moo. P. C. C. 427, to be that an unattested document may, by reference in a will, under certain conditions and limitations, become incorporated in the will as part of it. The courts of but few of our states have' had occasion to consider the rule, but some of them have followed it. Thus, in Newton v. Seamen’s Friend Society, 130 Mass. 91, the rule is adopted, and is stated as follows: “If a will, executed and witnessed as required by statute, incorporates in itself by reference any document or paper not so executed and witnessed, whether the paper referred to be in the form of a will or codicil, or of a deed or indenture, or of a mere list or memorandum, the paper so referred to, if it was in existence at the time of the execution of the will and is identified by clear and satisfactory proof, as the paper referred to therein, takes effect as part of the will and should be admitted to probate.” This rule of incorporation by reference has been repudiated, however, in New York and Connecticut (Booth v. Baptist Church, 126 N. Y. 215; Hatheway v. Smith, 79 Conn. 506), and I do not find that it has been accepted in this state.

In Hartwell v. Martin, 71 N. J. Eq. 157, the testator by will ordered his executors to make a settlement with his creditors of debts outstanding at the time of an assignment made by him for the benefit of his creditors, a,s shown by a list to be found with his will. Vice-Chaneellor Bergen held (at p. 159) such bequest to creditors to be void, “because it is an attempt to bequeath property to a class of persons who can only be ascertained by reference to a non-testamentary paper, which the testator might change from day to day and thus enlarge or diminish his testamentary gifts as often as he chose without observing the rules of law relating to the testamentary disposition of property. The effect, if it should be permitted, would be to allow a testator to declare the particular legatees to whom his estate should go without the formality required by law in such cases.” By this declaration I understand the vice-chancellor to disapprove the rule.

In Magnus v. Magnus, 80 N. J. Eq. 346, Vice-Chancellor Stevens dealt with a will in which the testatrix made a bequest of personal property to her niece “to dispose of in accordance with my instructions to her.” After the death of the testatrix a letter was found in her handwriting, addressed to the niece, in which instructions were given as to the disposition of certain articles of personal property. The vice-chancellor referred to English cases approving the doctrine of incorporation by reference, without expressing his opinion thereon, and he rejected the letter in question because it was not referred to in the will in terms sufficient to identify it. I do not regard this case as placing the approval of this court on such doctrine.

I cannot assent to the proposition that an unattested document making disposition of property can be incorporated in a will by reference thereto. Our statute (Comp. Stat. 5867 § 24) prescribes certain formalities which must be observed -in every writing intended to take effect as a valid testamentary devise or bequest, and then it provides that all wills and testaments made in conformity with the statutory requirements, shall be sufficient to devise, pass and bequeath all estates and property, real and personal, and all rights of any kind. This statute defines our policy with respect to the manner in which a testamentary disposition of property may be made. A writing may express clearly the wish or intention of a decedent, but if the statutory formalities have not been followed, it is not a valid will, because it cannot be a question of what he intended to do, but whether he has actually followed the provisions of the statute. These' provisions are reasonable and easily understood and their purpose is to prevent frauds. An honest attempt to execute a will is occasionally defeated by failure to follow the statute, but it is better that this should happen than that the provisions designed to protect testators generally from fraudulent alterations of testamentary bequests and devises, should be weakened. It seems to me obvious that to constitute a will expressing the testator’s testamentary desire, the writing must denote or specify the subject and object of the testamentary gift intended, otherwise no bequest is made, and that to permit reference to be made to a collateral unattested document, mentioned or described in the will, for the purpose of ascertaining what the testator intends to bequeath, or for whom the bequest is intended, is calculated to defeat the salutary purpose of the statute and to afford] opportunity for fraudulent practices. In the instant case, the testator, in attempting to make a testamentary bequest, failed to comply with provisions of the statute mentioned, in that he did not incorporate the object of his giff in his duly-executed will, but chose instead to express his wish in a paper which is not, and which he expressly stated should not be, part of his will, and which he did not execute in conformity with the statutory formalities. I shall therefore hold that the sealed letter or paper cannot be incorporated in the will and that the attempted bequest to complainant is void.

It is argued on behalf of complainant that because it is' apparent on the face of the will that the bequest of $5,000 to the executors is not intended! for them, but for a purpose specified in a sealed letter, the bequest is ambiguous and that the sealed letter is admissible as extrinsic evidence to explain the ambiguity. But evidence of a testator’s declarations, tending to show his meaning and intention or understanding different from the legal significance and effect of his will, has been uniformly rejected by the courts as incompetent. Farnum v. Pennsylvania Co., 87 N. J. Eq. 108, 114; affirmed, 87 N. J. Eq. 652.

The bequest having been made to the executors in trust, and the object of the trust being incapable of ascertainment on the face 'of the will, the executors take no beneficial interest therein. Smith v. Smith, 54 N. J. Eq. 1; affirmed, 55 N. J. Eq. 821; Condit v. Reynolds, 66 N. J. Law 242. The bequest lapses and falls into the residuary estate and passes under the residuary clause of the will. Allen v. Moore, 86 N. J. Eq. 357; affirmed, 87 N. J. Eq. 365.


source: Caselaw Access Project

license: Public Domain

text:
    William E. Van Buskirk et al., complainants, v. Standard Oil Company of New Jersey, defendant.
    [Decided June 19th, 1923.]
    1. Equity will enjoin an unauthorized encroachment upon or use of lands dedicated to burial purposes.
    2. ¡Setting apart land for burial purposes, permitting burials therein and enclosing the land 'by a fence, amounts to a dedication of the land and precludes the owner of the land from exercising his former rights therein.
    3. Relatives and friends of those interred in such burial place are entitled to free ingress and egress to and from the public street or road nearest thereto, over lands which surround the cemetery and an injunction should issue to prevent disturbing, altering or destroying the burial ground and from interfering with access thereto.
    4. Adverse possession of such a burial place cannot be held against the .dead buried therein; nor can there be an abandonment until the bodies are removed under proper authority. It continues to retain its character as a place of sepulchre until such removal is effected.
    On bill for injunction, &e.

      Mr. Aaron A. Melnilcer, for the complainants.

      Mr. Pierre P. Garven, for the defendant.
   Fielder, V. C.

James Van Boskerk, whose will was probated December 27th, 1823, died seized of a large tract of land, situate at Constable Hook, in what is now the city of Bayonne, on which he resided. Included within his homestead lot, and a few hundred feet from his mansion house, was the Van Boskerk family burial ground, about an acre in extent. By his will, dated September 8th, 1823, he devised all his real estate, with the exception “of the burying ground as it is now enclosed,” and excepting, also, other described real property, to his three sons, John, Nicholas and James, upon condition that no part thereof should be sold by them, but should be divided amongst their children at the time and in the manner they might deem fit. He designated how the real estate devised to his three sons should be divided, giving to his son John and to his heirs forever the homestead lot of forty and eight-tenths acres, making no mention of the burial ground, other than in the exception quoted. The other real estate excepted from the devise to his three sons was devised to his daughter Ann. He left him surviving his said three sons and daughter.

John Van Buskirk (son of James), who had changed the spelling of his surname, executed and delivered to his son, John Yan Buskirk, Jr., a deed dated March 20th, 1864, recorded July'20th, .1864, in which he recited the will of his father and the devise thereby of all of said testator’s real estate, with the exception “of the burying ground as it is now enclosed” and excepting also certain other real estate, to his sons John, Nicholas and James, upon the conditions above set out and further reciting the intention of. the grantor, John Yan Buskirk, by his deed to convey the land thereinafter described, to his son John Yan Buskirk, Jr., in part as his portion according to the power given in the will of James Yan Boskerk, and then the grantor proceeded to convey to his son John, Jr., a tract of land within whose boundaries the burial ground was located, without further reference .to said burial ground.

John Yan Buskirk (son of James Yan Boskerk) died in or about the year 1869, leaving a will dated July 25th, 1864, by which he devised to his said son John Yan Buskirk, Jr., the said homestead lot of forty and eight-tenths acres (all or the major part of which he had conveyed to said son by the deed above mentioned) without referring in the description thereof to said burial ground. He added, as the final clause of his will, the following: “It is my wish and I hereby order' that the burial ground at Constable Hook, adjoining said homestead, shall not be disturbed in any manner, nor used for any purpose whatever, except for sepulchre only.”

By deed dated May 8th, 1905, recorded October 26th, 1905, John Yan Buskirk, Jr., conveyed to Charles W. Fuller, then the agent and attorney for the defendant, the burial ground in question, by the following description:

"All .and singular the land used and employed for the purpose of sepulchre and which land and premises are contained in block 256 on map above referred to and known as ‘old cemetery’ and containing one acre of land be the same more or less,”

and said Fuller, by deed dated November 1st, 1905, recorded January 20th, 1911, conveyed the burial ground, by Hie same description, to the defendant.

Under proceedings initiated and completed by the defendant prior to the deed from Yan Buskirk to Fuller, the public streets leading to the burial ground were vacated by the city of Bayonne and the defendant is now in possession of such streets as the owner thereof and also of the lands surrounding the burial ground and upon delivery of the deed from Yan Buskirk to Fuller, it took possession of the burial ground. It refuses to permit complainants to have access to the burial ground or to enter the same, except for the purpose of removing the bodies of complainants’ ancestors at a time to be agreed upon, or to be fixed by this court. Complainants are the heirs-at-law of John Yan Buskirk, Jr. (who died in 1919), the grantor to Fuller. They pray an injunction restraining the defendant from removing the remains interred in the burial ground and from desecrating or destroying said plot and for a decree that they may have a right of way over defendant’s land to and from the burial ground.

The defendant insists that by the will of James Yan Boskerk (who died in 1823), the devise of the forty and eight-tenths acre tract to his son John, was in fee and included the burial ground within that tract; that by deed dated March 20th, 1864, said son John conveyed to .his son John, Jr., in fee, a tract of land which included the burial ground and that John Yan Buskirk, Jr., conveyed the hurial ground in fee to Euller, who conveyed to defendant. Í cannot interpret the will of James Yan Boskerk as intending to devise the burial ground to his son John and I am of the opinion that in devising his real estate to his three sons, James Yan Boskerk expressly excepted the burial ground and made no testamentary disposition thereof. Whatever estate he had in the land enclosed as a burial ground descended to his three sons, John, Nicholas and James, and to his daughter Ann, and all that John Yan Buskirk could convey to his son John, Jr., was a one-fourth interest in whatever estate James Yan Boskerk died seized in 1823. The fact that John Yan Buskirk, Jr., conveyed or attempted to convey all his interest in the burial ground to the defendant, does not bar his heirs-at-law-, the complainants, from seeking relief in this court. Equity will grant relief in a proper case, at the suit of relatives, or even friends, whether owners of the soil of the cemetery or not, of those buried therein, because a dead body is in the custody of the law and the disturbances of its resting place and its removal is subject to the control and direction of this court. Toppin v. Moriarty, 59 N. J. Eq. 115; Smith v. Shepherd, 64 N. J. Eq. 401; De Festatics v. De Festetics, 79 N. J. Eq. 488.

But I do not think that the issue in this case should be determined by ascertaining whether or not the • defendant can trace title to the burial ground by will and deed. The original Yan Boskerk homestead was erected late in the seventeenth century or early in the eighteenth century and the plot in question must have been used for burial purposes prior to the year 1800, because a witness speaks of two graves therein, marked by tombstones bearing inscriptions which showed that the deaths occurred in the eighteenth century. Setting apart land for burial purposes, permitting burials therein and enclosing the land by fence, amounts to- a dedication of the land and precludes the owner from exercising his -former rights therein. Whether the land was thus dedicated by James Yan Boskerk (who died in 1823), or by a former owner, does not appear; but it does appear by the recitals in the will of James Van Boskerk that at its date, September 8th, 1823, the land had been so dedicated and was enclosed from his homestead lot by a fence and that he recognized such dedication. I have said that I think the intent to be gathered from his will is not to include the burial ground in the land devised to his son John and I also think that it was not the intention of said son John Van Buskirk (who died in 1869) to convey by his deed, dated March 20th, 1864, or to devise by his will, dated July 25th, 1864, the burial ground to his son John, Jr.; but if such was the intention of said testators and grantor, the wills and the deed could not accomplish such purpose, because of the dedication of the land for burial uses. Members of the Van Buskirk family and their friends and neighbors were buried in the cemetery, the last interment being in 1886, so that for at least ninety years the cemetery was used for the purpose for which it had been dedicated. It contained a vault and the separate graves were marked with stones and its use for the purpose for which it was dedicated was open and notorious and was known by everyone through whom the defendant claims title. James Van Buskirk (who died in 1823) recognized, by his will, the setting apart of the enclosed tract for such purpose; his son John (wno died in 1869) was buried therein and in his lifetime gave similar recognition by the recital in his deed to his son John, Jr., and by his will. The wife of John Van Buskirk, Jr. (who conveyed to Fuller) was buried there, although her body was removed in .1890 or 1891, and by his deed to Fuller John Van Buskirk, Jr., recognized the existence of the cemetery, because that is what his deed specifically purports to convey.' John Van Buskirk, Jr., did nothing to interfere with the use of the cemetery as such until he attempted to convey to Fuller in 1905, and if he- claimed to be the owner thereof from the time of the conveyance to him in 1864, he exercised no act of ownership and did nothing to indicate an adverse possession against others having rights therein. He could not hold adversely against the dead, whose right to a last resting place is guarded and protected by the law, but rather the dead hold adversely to him and to those claiming under him. Nor can there be an abandonment of the burial ground until the bodies therein are removed under proper authority, and it continues to retain its character as a place of sepulchre until such removal is effected. There have been no interments in the burial ground for nearly fifty years and for many years the plot has not been cared for; but since 1905 the fault is that of the defendant who closed all avenues of approach to the place and refused access to those who might care for and preserve its character.

I conclude that the right of burial in the cemetery still exists and extends to the descendants of James Van Boskerk (who died in 1823) for themselves, their relatives and such friends, whose surviving relatives may desire permission to inter there and that all living Van Boskerk descendants and relatives and friends of those whose bodies are interred in the cemetery have the right to visit this final resting place of their dead, for the purpose of. maintaining, caring for and protecting the remains, the graves and the grounds and are entitled to free ingress and egress to and from the public street or road nearest the cemetery over the lands owned by the defendant which surround the cemetery. The defendant will be enjoined from disturbing, altering or destroying the burial ground and from interfering with access by complainants to and upon the cemetery. If the manner of access cannot be agreed upon by the parties, application for that purpose may be made to me.

Eor the information of counsel, I will say that in reaching my conclusions I have been guided by the -following authorities:

Wormley v. Wormley (Ill., 1904), 3 L. R. A. (N. S.) 481; Roundtree v. Hutchinson (Wash., 1910), 27 L. R. A. (N. S.) 875; Hines v. State (Tenn., 1911), 42 L. R. A. (N. S.) 1138, and notes appended thereto.


author: Church, V. C.

text:
    Albert H. Atha, petitioner, v. Mary H. Atha, defendant; J. Lawrence Dias, intervening defendant.
    [Decided May 16th, 1923.]
    1. Where letters admittedly written by the defendant were bought by the petitioner in a divorce suit, the fact that they were paid for does not affect their admissibility or their credibility.
    2. Where depositions from servants in the household without this state are presented, the fact that the petitioner gave sums cf money to the deponents, and, in one case a present before the deposition was taken, may go to the credibility of the depositions, but does not affect their admissibility.
    3. A motion to amend an answer setting up. condonation, connivance and acquiescence should be granted, but these matters might have 'been considered without amendment, under the equity doctrine of clean hands.
    4. Evidence examined and held sufficient to prove the adultery charged by the petitioner, and further' held that such adultery has been condoned and acquiesced in to such extent that the petitioner cannot come into court and ask relief.
    On petition for divorce, &e.

      Messrs. McGarter & English (by Messrs. Robert El. and George McGarter) for the petitioner.

      Mr. Nicholas W. Binclseil, for tlie defendant, Mrs. Mary H. Atha.

      Mr. Merritt Lane, for the intervening defendant, J. Lawrence Dias.
   Church, V. C.

I will in the first place dispose of legal questions which were propounded to me during the course, of the trial. Some of them have not been seriously pressed, but as they have been raised I feel that I should dispose of them. 1. Letters admittedly written by the defendant, Mrs. Atha, and the co-respondent, Dr. Dias, were offered in evidence. Objection was made by counsel for the co-respondent on the ground that either before or after the letters were turned over to Mr. Atha money was paid by Mr. Atha to the persons in possession of these letters. I cannot see how this affects either their- admissibility or their credibility, the letters being admittedly in the handwriting of -the defendant and the co-respondent.

2. Depositions are presented from servants in the Atha household residing without the state. • It is admitted that the petitioner gave sums of money to the deponents and in one case a present before the deposition was taken. While I feel that this may go to the credibility of the depositions, I do not think that it goes to their admissibility. I will, therefore, receive them, and I will consider both the letters and the depositions later on. 3. A motion was made to amend the answer, setting up condonation, connivance and acquiescence. I have allowed the amendment, as I think I have a right to do. Moreover, I feel that under the general equity powers of the court, even without amendment, I have a right to consider these defences in a ease where a petitioner is seeking a divorce on the ground of adultery from his wife, under the doctrine of clean hands. Rapp v. Rapp, 67 N. J. Eq. 236 (at p. 238); Young v. Young, 94 N. J. Eq. 155. 4. Evidence of the defendant was offered seeking to show that the petitioner had kicked her and treated her with extreme cruelty. There is nothing in the answer or the counter-claim alleging extreme cruelty. I shall, therefore, disregard this testimony.

The facts of the case, briefly stated, are these: Mr. and Mrs. Atha were married in 1906 and lived together in apparent happiness until 1908, when the petitioner threatened to leave his wife. A reconciliation was effected and they continued to live together. In 1910, or thereabouts, the co-defendant, and the re-respondent, Dr. J. Lawrence Dias, came into the life of Mr. and Mrs. Atha. His visits to the Atha house became more and more frequent, both in a professional capacity and as a friend of Mr. and Mrs. Atha. He treated Mrs. Atha at his office at very frequent intervals. In the earlier years Mr. Atha paid physician’s bills to Dr. Dias. Later on none were sent and none were paid. Mr. Atha now. files a petition alleging adultery on the part of his wife with Dr. Dias as co-respondent. The only direct evidence of acts of adultery is that of Mrs. Hannah Miller, who testified that on one occasion she stood on the stairs leading from the second to the third fiooi’, looked into the bedroom, and saw Dr. Dias and Mrs. Atha lying on the couch and embracing. She said that the door was open about two feet. She also says that while ascending the stairs from the first to the second floor she looked into the living-room and saw Dr. Dias and Mrs. Atha in affectionate embrace on the sofa in the living-room. She also says that looking from the pantry into the living-room she could see Mrs. Atha sitting on Dr. Dias’ lap and telephoning to her husband, saying that she was lonely.

At the conclusion of the case I went to the Atha home, accompanied by my stenographer and by counsel and placed myself in the positions in which this witness testified that she stood when she saw these alleged acts of adultery. It is admitted that the furniture in these various rooms is now as it was and always has been. I took my position on the stairs on the third floor, where the witness testified she stood, and counsel for the petitioner stood next to me. The door was open to the extent she testified, two feet. It was impossible to see into the room. I then directed that it be opened three feet. It was impossible to see into the room. I then directed that it be opened to three feet, six. It was impossible to see into the room. I then directed that the door be opened to its fullest capacity. It was possible to see a very small portion of the couch in.question, but the view was not sufficient at that point to have observed any improper conduct. Mention -was made of a crack in 1he door. I looked at that. It was impossible to see through it. Mention was also made of a transom. The transom is of ground glass and nobody could see through it. I then investigated the statement of this witness that she observed improper conduct in the living-room from the stairs leading from the first to the second floor. Accompanied by counsel, I took my stand on every step from the first to the second floor. It is impossible to see into the living-room on any step' on these stairs. I then went into the pantry and placed myself in the situation in which the witness testified she was. It is possible to see into the living-room from this point. However, there are heavy portiers, which, if drawn, would preclude any view. I then went outside the house and looked into a window, in which the witness said she looked. It is impossible to see from that point. I think the maxim "failsus in uno, falsus in o'unnibus” applies as to this testimony. It is a physical impossibility for this woman to have seen three-fourths of what she swore she saw. I therefore reject her testimony absolutely and shall not consider it.

Adultery need not be proved by eye-witnesses to the actual acts. If desire and opportunity are proved, adultery will be presumed. The depositions of the servants state that Mrs. Atha expressed her love for Dr. Dias, and one says that on a certain day Mrs. Atha came from his office and confessed to the deponent that she had committed adultery with the doctor. I should be inclined to place little credence on these depositions, realizing that they were bought, except for the fact that I think that they have been substantially corroborated by the other circumstances in the case, and especially by the letters of the defendant, and of the co-respondent, which I have admitted in evidence.

It is clearly proved that Dr. Dias was a frequent visitor at the Atha home; that he dined there almost every night; that -Mrs. Atha frequently went to the doctor’s office for treatment; that when he came to her house, sometimes when Mt. Atha was there and sometimes when he was-not there, it was their custom to go to Mrs. ‘Atha’s room, she being undressed and in bed, and to stay there until late hours. They admit that occasionally, as they say, they went to New York together, unattended, at one time walking through Central Park and afterwards going to dinner and the theatre. One of the witnesses, William Cummings, says that he saw them at the Newark station of the Hudson tubes and went on the same train with them to New York, where, with a dress suit case, they disappeared together in a crowd. This was on a day when Mr. Atha had left Newark on a business trip. They admit that on one occasion on an automobile trip, while in Virginia, they left Mr. Atha and went to Richmond, Virginia, spending the night at a hotel, occupying adjoining rooms, Mr. Atha arriving the next day. They admit that while on a trip to Cooperstown, while Mr. Atha was at breakfast downstairs, Dr. Dias, who had occupied an adjoining room, was discovered by Mr. Atha taking breakfast in Mrs. Atha’s bedroom, she in negligee.

We now come to the consideration of the letters introduced in evidence in this case. Of the two from Dr. Dias to Mrs. Atha, in this case, one is addressed “My Darling Tomp” (the testimony says a pet name), the other, “My Dear Tomp.” I will quote passages from them. This from the Dear Tomp letter:

“I have never been so happy in all my life, although just at present I am sad at being away from you. I often wonder at my extreme good fortune in having met you, sweetheart, and trust that my lucky star- will always continue in the ascendent. My pleasure last evening was complete and I look forward to having many such happy ones with you. I will think of you every minute and will look forward with great pleasure to seeing you again Saturday. Goodnight, dear, and with best love.”

Mrs. Atha admits in her testimony that she wrote the letter introduced in evidence to Dr. Dias, but declares she did not send it. This is referred to in the testimony as the torn' letter. It was purchased by Mr. Atha from the servant in pieces and was patched together. The omissions are explained by the fact that-some of the pieces were missing. I will quote the tom letter in its entirety:

“Monday. My dear Lawrence: It is now two o’clock and I have not closed my eyes thinking over what is best for us both and have decided to give you up, for I understand as never before you do not love me and I cannot trust you, do what I wish if those moods come. I am afraid of them- and a life of happy memories is worth much more than the trouble I have had of late. I am sorry you were not brave enough to tell me you did not love me for I would have gone completely out of your life at any time nor would I have gotten in it had I dreamed the truth. Never in my life can I believe a girl needed love and sympathy as I do now, when I think of our little talks of such troubles, and actually what they were when I met it with you. I am turned to stone and such a being as Laurie seems to have died, or never lived, just an ideal that I made, for I longed so to give and be loved in the right way. Oh, if I let myself think of our days and those ambitious future plans then I cannot breathe. How wonderful I thought it to have someone to lean on to go through this world, but by degrees every bit of milk spilled, and for what? I am afraid a selfish wish to be it with everyone but me. I want to give you a last bit of advice, Lawrence—weigh your feelings and plans, don’t be so impulsive. Now, as regards our serious troubles I shall do nothing, just wait and when the end comes it will be over for us both in some way. People will have to find their own answer, gome may think they know, not through me, but I hope no one will make trouble. You will be saved all except a loss that could it have been, might have made you happy, but we will not be, for others that is sure. I tried to get you at the lodge tonight, but they said you left at 9:20, it was 9 :30. I wanted to say goodnight so I could try to sleep-, for I felt ill and nervous. I hope it will not make trouble for you, is it not wonderful how peaceful I am after the storm. I shall enjoy my home, family and a few old friends, and try to make them love me just a little before the end, it is good that I will not have to go alone, but I want to see my baby, Laurie, and feel what it is to love my own -and yours.”

Mrs. Atha, on the witness-stand, said that this sentence should read:

“To love my own and you. You cannot begrudge me that. It is a small lot for what I must suffer and all alone (blank) I know I shall (blank) rest when I have recovered there will be no (blank) coming. Please keep my poor old secrets and I will keep yours. The money I will get to you when I can -and I will also have Andrew fixed somehow. I shall be perfectly happy, not jealous, if anything just glad that I am1(blank) to realize the reason of y (blank) ds and strong enough t (blank) up before it is too late for (blank). I wish you (blank) luck, but I am afraid of it. Please don’t go to pieces. You have done nothing Lawrence afterall, I prefer death to life as it is now and that will be a certain kind of happiness, it is really true, I hated to tell you I knew when I saw how you were feeling. Albert has promised to be kind to me as I explained to him I was very nervous and must give up and after a while I would be well and then life would start for him. I am glad I have a little faith in God tonight. I have read over chapters I loved when father used to read my prayers, and I feel a certain faith and belief creeping on me that I will be forgiven for all I have done and will do. It is hard to explain to you for you don’t want to believe, but it comforts me; and I am going to cling to anything that does. I would like to keep your things for a while, but all will be returned in time. Please make sure not to make any more mistakes. I only want no other woman to li (blank) through another spell like this, for it is too hard if you love. Good night Laurie, Mary.”

Whether or not this letter was ever received, it seems to. me it is a very damaging admission of her feelings towards the doctor.

There are other letters written by Mrs. Atha to- a servant, in which she speaks in endearing terms of Dr. Dias. These quotations from letters from Mrs. Atha to the servant, Mary Mass:

“The doctor has been so dear. We went to the theatre Thursday and dinner in New York and also .Saturday, he leaving at midnight to visit his mother until Tuesday. I just wonder what will happen, I don’t know what to do. I care so very much and yet I am so afraid of all it means. We don’t have words any more and there is nothing he does not do for me [referring to Dr. Dias], gave away his wedding present, a watch fob from Mrs. Dias, the other day. He is more thoughtful all the time.”
Another: “The doctor has been here twice, acted so kind and sweet I could not ask for more.”

Dr. Dias testified that he had a fondness and affection for Mrs. Atha, but that this fondness and affection was purely platonic. He says that he often discussed with Mr. Atha the question of securing a divorce from! the doctor’s wife and then of “taking care of Mary” (Mrs. Atha), although I may say in passing that it is difficult to conceive how the doctor could properly take car-e of “Mary,” even if he had a divorce from his wife, inasmuch as Mary was already the wife of another man. Mrs. Atha says: “I was very fond of the doctor; I was lonesome; I had lost my baby; I wanted to be loved.” She admits that if the doctor had been able to get a divorce,'and everything otherwise was all right, she would have been very glad to marry him.

Without analyzing this distressing testimony any further, I am of the opinion that the adultery charged in the petition has been proved and that Mrs. Atha and Dr. Dias are guilty of adultery. However, there is another legal question to- be considered in this connection. Was there condonation, connivance or acquiescence on the part of Mr. Atha? Let us analyze the testimony a little further. Mr. Atha admits that he knew of the frequent visits of Dr. Dias to his wife. He sanctioned them. Sometimes he was at the house when these visits occurred, and sometimes knew of them but was too busy to come home and join in the party. He knew that Mrs. Atha was in bed and the doctor in her bedroom up to a late hour, and he testifies that sometimes he would get up from his own bedroom after being asleep’ and tell the doctor it was time to go home. He admits that when an automobile was purchased he permitted Dr. Dias to pay $200 or $250 on account of this automobile; that the doctor paid for a biimper to be put on the car; that the doctor paid for two trunks to be annexed to the ear, and for other accessories. He says that in regard to one car that was bought Mrs. Atha desired to have it painted a dull gray. He preferred maroon. He could not persuade his wife to have it painted maroon, so he asked Dr. Dias to use his influence with his, Atha’s wife, so that Atha’s ideas could be carried out. The influence was exerted, he says, and Mrs. Atha acceded to Dr. Dias’ request, which was really his.

He explains the southern trip before alluded to in this way: That he and the doctor and Mrs, Atha were mired, their motor having become stuck in the mud. He, apparently, thinking more of his automobile than his wife, decided to remain with it, and permitted his wife to leave in another automobile with Dr. Dias to spend the night in Richmond, he saying that he would come on later, going so far as to transfer part of her wardrobe from a trunk in his automobile to dress-suit cases, winch were placed in the automobile in which Mrs. Atha and Dr. Dias departed. Later on he modified his testimony by saying that he thought they were only going as far as Cumberland Court House, about fifteen miles distant, there to spend the night, and he would follow them with the car. Let us then take his own revised statement. When he arrived at Cumberland Court House he was informed that his wife and Dr. Dias had not stopped there but had gone on to Bichmond. He, therefore, spent the night at Cumberland County Court House, and went on the next day to Bichmond. He says they could not have gotten to Bichmond that night. How did his wife and Dr. Dias get there a few hours before ? When he arrived at Bichmond and found that his wife and the doctor had registered in adjoining rooms he deprecated it, said they should not have done it, but yet continued his intimacy with Dr. Dias. I may say here that all these trips which he took before and after this with his wife and Dr. Dias were paid for by Dr. Dias.

In the matter of the Cooperstown incident, Mr. Atha says that he left his wife when he went to breakfast, knowing that Dr. Dias was in an adjoining room, and when he came back and found his wife and Dr. Dias in her room having breakfast, she in negligee, he made no objection.

Another incident: He decided to go to Bed Bank on a fishing trip. Dr. Dias called him up on the telephone, said that he was at Mrs. Atha’s house, that she was very ill and he must come home immediately. He said he did not believe she was ill and declined to come, explaining that there had been a change in the schedules of trains. Dr. Dias thereupon announced that he was going to spend the night in Mrs. Atha’s house. Mr. Atha made no objection.

In 1917 Mr. Atha testifies he became annoyed at these attentions of Dr. Dias to his wife and told her that he intended to leave her. After protestations on her part and recriminations on his,- he decided to remain. He did remain and permitted the attentions of Dr. Dias to continue. About five months before he left his wife he discovered some pills in her possession, which he said he believed to be morphine given by Dr. Dias. It is a matter of common knowledge that addiction to this drug lowers the moral tone and makes the addict irresponsible and willing to do almost anything to obtain the drug. This was admitted by Dr. Dias himself and one of his own witnesses, Dr. Leyenberger, wbo went so far as to say: “Those addicted to the drug will-do anything, almost commit murder.” Mr. Atha did nothing to find out whether or not the pills he had discovered contained morphine, or to have them analyzed, as he should have done at once. Under repeated questions from me he said, “I did nothing, I wanted to be sure.” In other words, he was content to allow the shocking condition he suspected to continue until he thought he had absolute legal evidence which would permit him to get rid of his wife.

On the first day of this trial, which lasted seven days, Mr. Atha, on cross-examination, said that he could not remember whether a discussion had been held between his wife, Dr. Dias and himself, regarding a divorce between Dr. Dias and his wife, in which it was said that Mr. Atha desired Dr. Dias to hurry up his divorce so he could take care of Mary. Although he did not remember it at that time he said that- he would not swear that such conversations had not been held. On the seventh day of the trial, after hearing the testimony of his wife and Dr. Dias, who testified to these conversations, he was recalled to the stand and denied categorically that any such conversations had been held. In this instance I believe the testimony of Mrs. Atha and Dr. Dias.

He also admits that Mrs. Atha informed him at one time that Mrs. Dias, wife of the co-respondent, had been to her house and stayed about two hours, berating her for her conduct with Dr. Dias. Mr. Atha says he remarked she should not put herself in any such position. He, however, continued his intimacy with Dr. Dias, continued to permit his wife to see him, and continued to allow Dr. Dias to pay for automobile trips for Mrs. Atha, the doctor and himself.

I cannot imagine how any sane man could be so colossally stupid as to stand by for a period of nearly ten years and observe and participate in the incidents I have described without being suspicious. The best that can be said is that he was absolutely indifferent to his wife and her conduct, and absolutely unappreciative of the duties of a husband, both legal and moral, to protect his wife’s fair name, and to see that she was not improperly led into temptation.

On the witness-stand he said, “I admit I was a fool.” As far as this statement goes, I am not disposed to disagree with him.

I, therefore, find that, although the adultery charged in the petition has been proved, that it has been condoned and acquiesced in to such an extent that the petitioner cannot come into this court and ask for relief. It is' one of the axiomatic principles of equity that the petitioner must come into court with clean hands, and cannot stand by and acquiesce in conduct by his wife which will inevitably result in her downfall. If he. has serious, suspicions of her unfaithfulness, he cannot overlook and condone them without investigation and continue intimate relations with a man who he supposes is violating his wife’s chastity or debasing her morality. In Hedden v. Hedden, 21 N. J. Eq. 74, the chancellor said: “It is laid down that if a husband sees what a reasonable man could not see without alarm, he is called upon to exercise a peculiar vigilance and care over her, and if he sees what a reasonable man could not permit, and makes no effort to- avert the danger, he must be supposed to see and mean the result.” Delaney v. Delaney, 71 N. J. Eq. 246, holds: “It is not •necessary to find words or statements of the husband indicating connivance or consent. If his conduct indicates an intent, or even a willingness that the act of adultery may take place, or even culpable negligence in not preventing it, the maxim volenti non fit injuria applies, and the decree will be denied.” See, also, Sargent v. Sargent, 114 Atl. Rep. 428; White v. White, 95 Atl. Rep. 197; affirmed in 84 N. J. Eq. 512; also Rapp v. Rapp, supra; Young v. Young, supra. Before the institution of this suit Mr. Atha left his wife, went to the home of his parents, and wrote to her that he would never thereafter live with her. His suit for divorce having failed, he must properly provide for her.

I will therefore hear counsel as to the proper amount to be allowed when the decree is advised.


author: Ingersoll, V. C.

text:
    Warren Stover, petitioner, v. Adella Stover, defendant.
    [Submitted April 12th, 1923.
    Determined April 13th, 1923.]
    1. An actual desertion under the Divorce act must be “willful”— that is, intended by the deserter; “obstinate”—that is, persisted in against the will of the deserted, and “continuous”—that is, without interruption for the statutory period.
    2. Charges by a wife that her husband was guilty of adultery, made by her in good faith, do not amount to cruelty on her part, whei’e the husband’s health was not seriously impaired thereby.
    3. Wíhere a wife made charges of adultery against her husband, believing them to be true, and after her petition for divorce on that ground was denied, offered to return to her husband, still believing the charges were true, but expressing a willingness to forgive him, the husband was not justified in demanding that she publicly retract her charges before he would permit her to return, and his refusal to permit her to return interrupted the statutory period of desertion and defeated his right to divorce on that ground.
    On petition for divorce.

      Mr. Howwd L. Miller, for the defendant.

      Mr. W. Ilolt Apgar, for the petitioner.
   Ingersoll, V. C.

The petitioner charges that he and the defendant were married on the 29th day of March, 1916, and that they “cohabited after their said marriage until about the -month of October, 1919, when the said defendant deserted him; but that thereafter, to wit, in April 1920, there was a reconciliation and the parties lived together again from on or about the first of May, a. d. 1920, until the 9th day of June, A. D. 1920, when, on said last mentioned day, the said defendant again deserted Mm; and for more than two years last past said defendant has willfully, eontinuedly and obstinately deserted your petitioner.”

The defendant answering says, that “in October, 1919, she was compelled to leave her (said) home, as she was unable longer to endure the strain and mental agony inflicted by petitioner’s treatment; that she later returned to the home of the petitioner; that the petitioner ceased his cruel treatment of her, but by reason of financial restraint she was exposed to indignity and humiliation, and was again compelled to leave the home of petitioner; that she is ready at any time to return to her husband upon his assurance that he will treat her with due consideration, and extend to her half what she is entitled to receive.”

The petitioner in reply to the answer says that said statements are untrue, and are res adjudicaba, by reason of the filing on September 29th, 1920, by the defendant of a bill for support and maintenance, wMeh proceeded to a final hearing on January 3d, 1921, when an order of dismissal was advised by Yice-.Chancellor Baches.

The file and the testimony taken in that proceeding has been offered in evidence in this present action.

„ In the bill for maintenance the wife charged adultery and extreme cruelty. Neither of these charges being sustained by the evidence it was held that Mrs. Stover was not justified in her separation from her husband.

Since the dismissal of the bill for maintenance Mrs. Stover has entered upon a course of apparently determined effort to terminate this desertion by her. At first she insisted upon exacting certain conditions upon the part of -Dr. Stover before she would return; hut finally abandoning all conditions on or about December 22d, 1921, she returned to his residence, it also being, his place of business, and announced her desire and intention of remaining.

She remained all day, apparently without any friction, and also over night. The doctor, however, late in the afternoon, leaving, remaining elsewhere all night, and returning the next morning. After his return he ordered her to leave, which order,' after some delay, she obeyed.

The petitioner explains as his refusal to permit her to remain that her offer was not bona 'fide, and that she had been guilty of such extreme cruelty as to justify him in refusing to live with her. This extreme cruelty alleged by him is that she had falsely charged him with the crime of adultery, had pressed that charge in this court,- and even after the determination of the courBthat the doctor was not guilty had insisted upon her belief in his guilt.

That by reason of said charges she had damaged him in the esteem of the community and has injured him in his profession (that of a dentist), all of which' has seriously affected his "health, and that she was by reason of said conduct guilty of extreme cruelty.

An actual desertion under oirr statute must be:

1. Willful—that is, intended by the deserter.

2. Obstinate—that is, persisted in against the will of the deserted.

3.. Continued—that is, without interruption for the statutory period.

Danielly v. Danielly, 93 N. J. Eq. 556.

The desertion was willful on her part.

Two questions are therefore presented. 1st. Were the offers of Mrs. Stover to return bona fide? While there must be a doubt that a reconciliation, between the parties in the frame of mind which existed in each could be permanent, can she be held responsible for the entire situation?

Vice-Chancellor Baches had determined she was not justified in her separation and she therefore accepted the ruling of the court, and determined to end the obstinacy of her desertion.

This she has done in so far as in her power so to do.

Was the petitioner justified in his demand of her, i. e., to retract her charges of adultery against him. This she claims to be unable to do. Although the court found the evidence insufficient to substantiate the charge, she in court insists that she still believes him guilty, but further states she fully forgives the offence and is entirely willing to condone it. Can she be required to do more? She believed the guilt to exist notwithstanding the determination of the court; but if guilty, as she believes him to be, she forgives.

2d. Has she been guilty of extreme cruelty and is this desertion on her part?

Is a charge of adultery, pressed in this court, publicly and with great notoriety, insisted upon after a determination by this court that it did not exist, the alleged paramour being employed by and with her child kept at the home of Mrs. ■Stover and in a general course of events advertising to the world, her belief that her husband was the father of that child, that extreme cruelty required by our statutes to constitute constructive desertion?

Had the physicians who were called sustained the accusation that Dr. Stover’s health had been seriously impaired by reason of the charges, or from the notoriety arising by reason thereof, this might have been extreme cruelty. 19 Corp. Jur. 51.

This, however, they failed to do. If these charges .were made in good faith they did not constitute cruelty. 19 Corp. Jur. 52.

The petitioner was not justified in his first demand made of her, that she should retract the charge and should secure an affidavit of the mother that he was not the father of the illegitimate child. Was he justified in refusing her permission to return unless she complied with bis later expressed requirement to publicly retract her charge of adultery ?

I cannot find, in view of the testimony of the physicians, her guilty of extreme cruelty by reason of the charges made by her. Her bona fide willingness and desire to return to him and resume their marriage relations is all he could under the circumstances demand, and his refusal to permit her return without her first publicly retracting her charge is not justified.

Vice-Chancellor Grey in Loux v. Loux, 57 N. J. Eq. 561 (at p. 567) said: “There is a line of cases expounding the duty of a husband when the separation is the act of the wife and not justifiable.” See Cornish v. Cornish, 23 N. J. Eq. 209; Bowlby v. Bowlby, 25 N. J. Eq. 406; affirmed on appeal, 25 N. J. Eq. 570; Taylor v. Taylor, 28 N. J. Eq. 207; Driver v. Driver, 28 N. J. Eq. 393.

“These decisions, especially that of Bowlby v. Bawiby—■ which was affirmed by the court of errors upon the grounds stated by the vice-chancellor-—declared it to be the husband’s duty in such cases to make such advances as a just man should in order to put an end to his wife’s desertion.”

The same was also- declared- in Norcross v. Norcross, 82 N. J. Eq. 195, and it was said: “And he is excused from discharging this obligation only when it is manifest from the facts in the case that to do so would be unavailing.” Hall v. Hall, 65 N. J. Eq. 709.

Even if, under the circumstances of this case, it should be decided (although I do not so decide) that it was not the duty of the petitioner to make advances, the facts remain that the defendant (the wife) made sufficient advances and requests to be permitted to return to her -husband and that he repulsed her and refused to permit her to remain, in fact ordered her from his home.

The result is that although the desertion of the petitioner by the defendant was willful, it has not been obstinate within the meaning of the statute for the statutory period. Hall v. Hall, 60 N. J. Eq. 469; Hyer v. Hyer, 91 N. J. Eq. 147.

The petition will be dismissed.


author: Bentley, V. C.

text:
    Assets and Liabilities Association, a corporation, complainant, v. Antonio Esposito and Vincenzina Esposito et al., defendants.
    [Decided May 31st, 1923.]
    When interrogatories are exhibited under rule 84 by a complainant to a defendant whose answer to the bill is a general denial, such interrogatories being intended to reach matters peculiarly within the knowledge of the defendant, are proper, and a motion to strike them out rwill be denied, even when the bill is not verified.
    On bill, &c. On motion to strike out interrogatories.

      Mr. Schuyler M. Oudy, for the complainant.

      Mr. Willimi V. Azzoli, for the defendants.
   Bentley, V. C.

The bill charges that the defendant, Antonio Esposito, without consideration and with intent to defraud the complainant, conveyed three of four described pieces of land to his wife; that such conveyances were made by him by two deeds, dated respectively the 19th and 20th of April, 1922; that on April 13th of that year-, about one week before the paid conveyances, the complainant had recovered a verdict in the United States district court for the district of New Jersejr, in the sum of $7,360.22 and costs.

The charge of fraud is denied by the defendant, and alleges that such conveyances were in consideration of an ante-nuptial agreement between the said Esposito and his wife, Yincenzina Esposito, entered into between them prior to their marriage in 1913. So that, under the statute, the purpose of the suit is to set aside the conveyances mentioned so as to reach the property described in the bill.

As to a fourth tract of land in the name of the defendant, Antonio Esposito, it is alleged in the bill that it is held by Antonio and his wife by the entirety, on which there is a mortgage that will render it impossible to satisfy the judgment in the United States district court upon the verdict mentioned above. The entire paragraph in which these allegations are made is denied by the answer.

Under these circumstances, the complainant has served upon the defendants a series of fourteen interrogatories, whereupon the defendants have moved, upon notice, for an order striking out the interrogatories, upon several grounds.

Under the original practice, such interrogatories as the complainant chose to exhibit to the defendant were contained in the bill, and if the defendant desired to- secure discovery from the complainant he filed a cross-bill for that purpose, until the Act of 15 and 16 Vic. c. 86 § 19, when it was provided that the defendant might filie interrogatories for the examination of the complainant (Dan. Ch. Pl. & Pr. § 1553). Under the former chancery rules of this state it was provided by the seventy-seventh rule that the defendant might serve interrogatories upon the complainant, following the English statute just mentioned. In the revision of the chancery rules, promulgated to take effect January 1st, 1917, there was copied the. sixty-second rule of the schedule to the Chancery act (1915), which was a supplement to the act of 1902, and was approved March 30th, 1915. This abrogates the seventy-seventh rule alluded to, and provides:

“When a cause is at issue between two or more parties, either of them may serve on the adverse parties, or any of them, written interrogatories upon any matter material to the issue, with a note at the foot thereof stating which of the interrogatories each of the parties is required to answer.”

It seems to me clear that the purpose of this change was to provide a simple and expeditious method of examining the adverse party before -trial, similar to section 140 of the Practice act of 1903, relating to the courts of law, and that being adopted for the purpose of guarding against surprise on the final hearing, should he liberally construed. Erom an examination of the interrogatories I am convinced that they are all pertinent to the issues raised by the pleadings and, calling as they do for matters peculiarly within the knowledge of the defendant, are properly framed.

It is also objected upon the part of the defendants that this bill ibeing filed under section 70 of the Chancery act (1 Comp. Stat. p. 435), interrogatories may not be served because the seventy-second section provides for examination of the defendant only when the bill is verified. On a previous motion. I refused to grant an order for such examination because the bill was not sworn to; but I see no relation between this section of the Chancery act and the provision of the eighty-fourth chancery rule which I have just quoted. The seventy-second section of the Chancery act provides only the very different procedure of the examination of a party before trial and is not intended in any way to narrow the right of ascertaining facts peculiarly within the knowledge of the adverse party by interrogatories.

I will advise an order dismissing the notice to strike out.


text:
    A. Ellicott Brown et al., complainants, v. John Wencher, defendant.
    [Submitted March 26th, 1923.
    Decided April 13th, 1923.]
    1. A decree of the orphans court for the sale of lands to pay the debts of a decedent cannot be attacked in a collateral proceeding for fraud practiced upon the orphans court where that court had jurisdiction of the subject-matter and the parties.

      2. Specific performance will not be decreed where reasonable doubt exists concerning the title, which might involve the purchaser in future litigation.
    3. A sale of property to pay debts of a decedent under a decree of the orphans court divests the decedent’s heirs or devisees of all title to the premises in question.
    On bill, &e.

      Mr. Benjamin A. Vail, for tlie complainants.

      Mr. Orlando H. Bey, for the defendant.
   Bentley, V. C.

The bill herein seeks a decree for specific performance of a contract for the conveyance of land.

In his lifetime George E. Brown, deceased, the father of the complainant A. Ellicott Brown and husband of the complainant Marian S. Brown, was the owner of a part of certain lands and premises in the city of Rahway, and died seized thereof on April 20th, 1914, leaving a last will and testament which has been duly probated, wherein and whereby he gave an estate for her life to his widow, or during her' widowhood, in all his property, with remainder “unto mjr children share and share alike and their heirs and assigns forever.” His will then provided as follows:

“Fourth.—In case any of my children be deceased at the time of my decease or the decease or remarriage of my aforesaid wife, leaving lawful'issue, then and in that case I hereby direct and order that the part to which such child if living would be entitled to receive out of my estate in accordance with the terms of this will, be paid to such lawful issue share and share alike.
Fifth.■—In ease all of my children be deceased without leaving lawful issue at the time of my decease or decease or remarriage of my aforesaid wife, then and in that case I give, bequeath and devise all of my said property aforesaid unto my brothers and sisters share and share alike, to them and their heirs forever, but if any of my said brothers and sisters should be deceased at the time, when in accordance with the terms of this will they would be entitled to my estate, and leaving lawful issue, theh and in that case I direct that the part of my estate to which such deceased brother or sister would be entitled if living be paid to their lawful issue share and share alike and to their heirs and assigns forever.”

At the time of his death the said George E. Brown left him surviving his widow and one son, the complainants herein, as his only heirs-at-law and next of kin. He left, however, a nephew and niece, both of whom are now living, the children of a brother who predeceased him and who of course would, have a contingent remainder.

The complainant Marian S. Brown, as executrix of said will, filed her petition in the orphans court of Union county in 1921, seven years after the death of her testator, for leave to sell lands to pay the testator’s debts under the statute. Such proceedings were had thereon that in the same year a decree was made and the lands sold. The sale was made by her as executrix to her son, the complainant A. Ellicott Brown, and included the lands involved in this suit. Thereafter both complainants entered into a contract with the defendant to convey the lands aforesaid.

The first defence interposed'is an attempt to attack, collaterally, the decree of the orphans court authorizing the sale from the executrix to the complainant A Ellicott Brown. The ground alleged is the fraud practiced upon the court in the petition for permission to sell the lands of the decedent.

I incline to the belief that the defendant cannot thus collaterally attack the decree of the orphans court, for the reasons given in Lawson v. Acton, 57 N. J. Eq. 107; Plume v. Howard Savings Institution, 46 N. J. Law 211; Clark v. Costello, 59 N. J. Law 234; Munday v. Vail, 34 N. J. Law 419 (at p. 422), and Forrest v. Price, 52 N. J. Eq. 16 (at p. 24).

The defendant maintains that the petition for the sale of this land in the orphans court on its face discloses that it -was to be sold for debts that were not those of the testator. This is not SO’. It is true that some of the items charged against the testator’s estate in the account of the executrix annexed to her petition were in fact her own debts as life tenant; but there were items far exceeding the value of the personal estate that were properly debts of the decedent and for which his lands could be properly sold, pursuant to the act. Furthermore, under the opinion in Lawson v. Acton, supra, it is clear that the defendant is protected by the decree of the orphans court and the order confirming the sale. In this case Vice-Chancellor Pitney, greatly against his own personal opinion, decided that the law was, even at that day, established in this state, following the Van Kleek Case, Spenc. 31 ; 1 Zab. 582. Applying the rule in Munday v. Vail, Forrest v. Price and Plume v. Howard Savings Institution, supra, he says: “In this case the presentation of the petition gave the court jurisdiction of the particular matter.” And in the case in hand the petition in the orphans court of the complainant Mrs. Brown clearly showed the jurisdiction of that court over the subject-matter.

The defendant also argues that the quality of the title he would receive would render it unmarketable and subject him to the perils described in Van Riper v. Wickersham, 77 N. J. Eq. 232; Vreeland v. Blauvelt, 23 N. J. Eq. 483; Dobbs v. Norcross, 24 N. J. Eq. 327; Tillotson v. Gesner, 33 N. J. Eq. 313; Cornell v. Andrew, 35 N. J. Eq. 7; S. C., 36 N. J. Eq. 321; Paulmier v. Howland, 49 N. J. Eq. 364; Lippincott v. Wikoff, 54 N. J. Eq. 107; Day v. Kingsland, 57 N. J. Eq. 134. To like effect will be found the case of Kohlrepp v. Ram, 79 N. J. Eq. 386, wherein Vice-Chancellor Garrison collects a large number of cases. And to like effect is the opinion of Vice-Chancellor Buchanan in Smith v. Reidy, 92 N. J. Eq. 586.

Of course, the rationale of these decisions is too deeply imbedded in our jurisprudence to admit of any argument if it is apposite to the facts of the case at bar.

The defendant argues that under the will of George E. Brown, the complainant A. Ellicott Brown took a vested remainder with contingent remainders to any child of his, if such there may ever be, and to the nephew and niece of the testator mentioned above. But, he argues, the title of the complainant A. Ellicott Brown, under the will of his father, is subject to be divested upon his death, either with or without issue, before the death or remarriage of his mother; in the first instance, in favor of his son, and in the second instance, in favor of the nephew and niece before mentioned. Burd. R. Prop. 358; 28 R. C. L. 509 § 43. If the title to be conveyed under the contract—that is, the basis of this suit were that taken by the complainant A. Ellicott Brown under the-will, then this contention would be destructive of the complainants’ bill. But that is not so. In fact, the title to be conveyed, and the title that the defendant would take under the contract, is the title that vested in the complainant A. Ellicott Brown by force of the sale under the orphans court decree.

The estate which the vendee takes by virtue of a deed under proceedings to sell land to pay the debts of the decedent is defined by section 94 of the Orphans Court act (3 Comp. Stat. p. 3846) in the following language:

“Which said deeds of conveyance, duly executed as aforesaid, shall vest in the purchaser or purchasers all the estate that the testator or intestate was seized of at the time of his or her death, if the order to show cause be obtained within one year thereafter; and if the said order be not obtained within that time, then the said conveyance shall vest in the purchaser or purchasers all the estate that the heirs or devisees of the testator or intestate were seized of at the time of the making of the said order of the orphans court.”

The defendant maintains under this language as if it meant that the vendee at such sale takes only such title as is then vested; without contingent remainders being thereby at all disturbed. In other words, the title to the lands in question having at the time of the sale vested in A. Ellicott Brown, that the decree and deed serve to convey only that interest, namely, his vested remainder, subject, as it was, to be divested as above indicated and without effect upon the estate given by the will to the contingent remaindermen. But such is not the language of the act. It says that it shall vest “all'the estate that the heirs or devisees of the testator or intestate were seized of at the time of the making of said order.”

My interpretation of this language is that it conveys all the estate that all the heirs or devisees had at the time mentioned. Otherwise, the procedure authorized by the statute might in any case be a vain and futile thing; for surely no one would purchase at a sale a purely defeasible estate in the decedent’s lands. To this effect was the decision in Incandescent Light, &c., Co. v. Stevenson, 83 N. J. Eq. 483, where Vice-Chancellor Learning said: “Our statute created a lien in behalf of a general creditor of a deceased person on the lands of the deceased for a period of one year .and thereafter until a bona fide sale of the land has been made by the heir or devisee.” To like effect are Haston v. Castner, 31 N. J. Eq. 697, and Westervelt v. Voorhis, 42 N. J. Eq. 179.

Therefore, the proceedings and decree of the orphans court not being open for review in this case, and the title which A. Ellicott Brown now has in the lands in question, together with that of his mother who joins with him in the deed, being an indefeasible estate in fee-simple, and the title which the defendant will take measuring as it does up to the requirement fixed by the decision hereinabove mentioned, the complainant is entitled to a decree.


text:
    Emil J. Pattberg, petitioner, v. Charlotte Pattberg, defendant.
    [Submitted April 18th, 1923.
    Decided April 20th, 1923.]
    1. A husband who lives with 'his wife and is guilty of no matrimonial offence, has 'almost unbounded discretion as to the manner and style in which they shall live.
    2. A husband must support his family according to his station in life, but while he remains a member of and the head of the family partnership, a wide latitude of discretion must be allowed him as to how much of his income it is advisable to spend, and how much should be retained for the purpose of establishing a competence for the future, and is entitled to a large extent to dictate the manner in which the money shall be spent.

      3. A husband who has deserted his wife and children cannot dictate the maimer in which the money which he contributes to the support of his family shall be spent, and the stores at which his wife is to make purchases by extending credit in such stores only, but must pay the wife in cash the amount toi be expended for the support of herself and the children.
    4. Where a husband deserted his wife and two children, the court, in the wife’s suit for separate maintenance, was not required to limit the wife’s allowance to one-third of the husband’s income, and where his income was $4,200 a year, an allowance of $50 a week for the support of the wife and two children, ten and thirteen years of age, is proper. <
    On petition for divorce.

      Mr. Julius Lichtenstein, for the petitioner.

      Mr. Alexander Simpson, for the defendant.
   Bentley, V. C.

This is a suit for divorce by the husband, with a counterclaim by the wife, who will be referred to as the defendant, both on the ground of desertion. The petition has been withdrawn without prejudice, and the counter-claim has been so' amended as to make this practically a suit for separate maintenance under the twenty-sixth section of the Divorce act. '

The parties lived together in comparative happiness until about 1915, when trouble arose which, according to the evidence, was over money matters. At that time and for some years afterwards the petitioner was allowing the defendant $100 a month for the table and pin-money, he paying all the other expenses of the home, such as rent, light, fuel and clothing. The wife had charge accounts in two of the New' York department stores, and apparently never abused her husband’s credit or was accused of such abuse until upon one occasion she purchased a hill of goods amounting to something over $300, which, caused him to close the accounts; and matters going from bad to worse, the husband, in October, 1921, following a quarrel over the cooking of his meals, left the home in which he had been living with his wife and two children, and went to live with his mother, where he has remained ever since.

The arrangement under which he has provided for his family is that he has pledged his credit at three stores from which his wife can buy food in such quantities as she sees fit. In addition to that he purchases all the clothing for his children, but not for his wife, and pays all of the necessary expenses such as rent, fuel and light. He then pays to his wife $40 a' month, out of which she is obliged to clothe herself, pay small incidental expenses such as laundry and toilet articles and find her pin-money.

lie testified that his annual income amounts to $4,200 and that he annually expends upon the items mentioned slightly upwards of $5,000 a year, so that it has been necessary for him to borrow the excess over, his salary to support his family under this mode, whereby he has run considerable into debt. He also testified that he lives with his mother free of charge and has practically no expenses other than for his clothing, to defray which it is also necessary for him to use borrowed money. Startling as this testimony is I feel it unnecessary to express any opinion as to the credence to be given it, for the reason that under all the testimony in the case it is agreed upon all hands that he has been spending more money upon his wife and children than this court would compel him to. The single question involved relates to his Tight to support his wife in this fashion rather than to give her a regular allowance to meet the expenses of her household.

1 It will-have been observed that the husband has deserted his wife, that is, he has separated himself from her without any justifiable cause. While he remained with her and was guilty of no matrimonial offence, his discretion was' almost unbounded as to the manner and style in which they should live. 'While it is true that a husband must support his family according to his station in life, it is also true that while he remains a member of the family partnership- and the head thereof a wide latitude of discretion must be allowed him as to how much of his income it is advisable to spend and how much, should be retained for the purpose of establishing a competence for the future. Furthermore, he is entitled to a large extent to dictate the manner in which such money shall be spent; but when he separates himself from his wife in a case like the present one, without any justifiable cause, he becomes a wrong-doer, and I do not understand that he can wrong his wife and then continue to exercise the same degree of control over her that is vested in an innocent husband who is living with his family and seeking to do the best for them. Otherwise, a dissatisfied husband, with ■ the bitter animosity that is such an unfortunate concomitant of matrimonial causes, would have 'it then within his power to make the life of an innocent wife intolerable. If he can direct that she must procure her groceries from one and only one grocery store, it is clear that he could pick out one where it would be most distasteful for his wife to trade or where it might be impossible to secure the sort of food to which she is entitled. Even more so would that be the case in the selection of a butcher.

But upon broader grounds, if she is left alone to lead her own life the policy of the law has always been to compel him to provide her not with goods or credit, but with cash, so that as long as she behaves herself as a virtuous woman should she may lead her own life, make her purchases where she pleases, and effect all possible economies so as to save some of ¡her allowance. Clearly, the present system described above is destructive of all idea of economy, and the wife in this case has said that she can live better upon half of the amount that the husband is now spending for the support of her and their children if paid to her in cash.

It is argued very earnestly that the allowance to the wife should’be for not more than one-third of the husband’s admitted income of $4,200 a year. To this I cannot agree. She has the custody of the two children of the marriage who, as I recall it, are approximately ten and thirteen years of age. The expense of their support is becoming a considerable item and will continually increase. It seems to me that the husband cannot expect his wife to pay all the expenses for herself and these children out of an amount only $200 in excess of what it cost for food alone when the family were united. I do not understand that there is any hard and fast rule restricting the allowance in a case where there are children to be cared for, limiting the allowance that will be made to one-quarter or one-third of the husband’s income.

I will advise a decree allowing the wife the sum of $50 a week and a counsel fee, which I will fix upon notice, if counsel are not able to agree as to the amount.


author: Walker, Ordinary.

text:
    In the matter of the estate of William L. Bigelow, deceased.
    [Decided May 24th, 1923.]
    The provision in prerogative court rule 50 that a copy of a notice of appeal to this court shall be served on the adversary party within five days, unless the court shall grant further time, means that- the prerogative and not the orphans court or the surrogate shall have that power where the appeal is from the latter court or the surrogate.
    On appeal from the orphans court, &e. On petition for direction as to serving notice of appeal on certain non-residents.

      Messrs. Lindabury, Depue & Faulks, for the motion.
   Walker, Ordinary.

A petition of appeal from a decree of the orphans court of .Bergen county having been filed by Marvin Olcutt, executor, &c., it became his duty to serve a copy of the notice of appeal upon the respondents under rule 59 of this court, which reads as follows:

“Notice of appeal from the order, sentence or decree of the orphans court, or from proceedings of any surrogate, to this court, shall be filed with the surrogate; said notice shall state shortly the parts of the order or decree appealed from, and a copy thereof shall, within five days from the filing thereof, unless the court shall, in its discretion, grant further time, be served upon the adverse party, or upon his proctor if he appeared by proctor in the court below.”

Two of the respondents, Charlotte K. Smith, executrix, &c., and Elmer J. Chamberlin, executor, &c., reside out of the State of New Jersey, and the appellant has been unable to serve them within the time provided for in the rule, and now applies for an order extending that time.

It is to be observed that the rule provides that a copy of the notice of appeal “shall, within five days from the filing thereof, unless the court shall, in its discretion, grant further time, be served,” &c. It will be noticed that the language employed is “the court” not saying whethei the prerogative or orphans court, or the surrogate, who also holds a court (Mellor v. Kaighn, 89 N. J. Law 543), shall have the power to extend the time.

The effect of filing an appeal is to prevent the decree in the court below from destroying or impairing the subject of the appeal or being in any degree used for that purpose. Pennsylvania Railroad Co. v. National Docks Railway Co., 54 N. J. Eq. 647. And while an appeal removes the cause and the potential record to the appellate tribunal, it does not remove the papers constituting the physical record in the court below, whose jurisdiction, pending appeal, still exists for purposes not inconsistent with the jurisdiction of the appellate court. Bull v. International Power Co., 84 N. J. Eq. 209; In re Wandell, 92 N. J. Eq. 195. See, also, Ashby v. Yetter, 78 N. J. Eq. 173. However, the.question before me does not depend upon the limited jurisdiction residing in the orphans court, after and pending appeal; but is to be determined by the meaning of the language used in the rule. I am of opinion that when the rule of the prerogative court says “the court,” and the meaning can at least as well be applied to that court as to the orphans court, it should be held to comprehend an exercise of power by this court. If it were intended to bestow it upon the orphans court it would have been easy to have said “orphans court.” I think the word “the” in the rule should be held to be equivalent to “this,” meaning “this court”-—that is, the prerogative court. Therefore, on appeal from the orphans court to the prerogative court, it is the prerogative and not the orphans court that has the power to enlarge the time for serving copies of the notice of appeal. This view is entirely consistent with the exercise of appellate jurisdiction.

The order applied for for extending time will be granted.


author: Lewis, Vice-Ordinary.

text:
    In the matter of the appeal from an order made and issued by the surrogate of the county of Hudson to show cause before him why decree should not be made declaring Florence Curran to be dead, and from the decree by the said surrogate declaring the said Florence Curran to be dead.
    [Decided April 20th, 1923.]
    On proceedings before a surrogate to declare a person dead on account of absence for the statutory period, it is necessary in this state that the person should have been a resident of the county where the proceedings were had at the time of the disappearance in order to confer jurisdiction on the surrogate.
    On petition of appeal.

      Mr. Randolph Perkins and Mr. John F. Drewen, Jr., proctors .for the appellant.

      Messrs. Sullivan & Meehan, proctors for the respondent.
   Lewis, Vice-Ordinary.

This is an appeal from an order to show cause made by the surrogate of Hudson county why a decree should not be made declaring Elorence Curran to be dead, and from the decree by the said surrogate declaring the said Elorence Curran to. be dead.

It is urged by the appellant as indispensable, in order that the surrogate have jurisdiction, that the fact be proved not only that the residence of the person was in this state, but also that it was in Hudson county; in other words, that it is only the surrogate of the county in which the residence existed who has jurisdiction under the statute as it stands today. The proposition is essentially one of jurisdiction. The appellant maintains that under the statute of 1911 (Comp. Stat. 1st Supp. p. 474) the surrogate is given jurisdiction to act under the statute only in case of any person “being a resident of this state,” and that The' residence in this state of the person whose death is in question is a fundamental condition of the jurisdiction of the surrogate is made evident by the provision of the statute that it is only the “surrogate of the county in which the said person resided at the time when he or she absented or concealed herself,” who has power or jurisdiction to act under the provisions of the statute. In other words, the surrogate of the county in which the residence existed and he only has jurisdiction.

The precise legislative design as to this is placed beyond doubt by the fact also that the statute in question is in effect an amendment. It amends, by necessary implication, section 1 of the act as wa^ amended by P. L. 1895 p. 751.

The requirement of residence within the state at the time of the disappearance, &c., is new in the statute. The provisions of the law under the statute as it formerly stood (Comp. Stat. p. 1904) were extended to “any person whether a resident of this state or not.”

This is wholly a statutory proceeding and'the jurisdiction and power of the surrogate are obtained entirely from the statute. It is therefore rudimentary that the jurisdictional facts are required to have been established by the petitioner below as an affirmative element of her case. The testimony which this appeal brings up shows that the facts in question were not established in the petitioner’s case below. On the contrary, however, the testimony taken in the proceedings before the surrogate discloses that the petitioner herself swore that, according to her knowledge, Florence Curran ceased to have her residence in Hew Jersey fifteen years ago, but did not disappear until five years later. The testimony referred to is that of Annie Schemm. This evidence shows that Florence Curran was not a resident of the State of Hew Jersey at the time of her disappearance because Mrs. Schemm and other witnesses saw her in Jersey City on the 27th of April, 1911, when Florence Curran had ceased to reside in Hew Jersey for some five years and at a time when her residence was, according to the witnesses, supposed to be in Brooklyn, Hew York.

This, of course, does not establish positively, as the petitioner below was required to do, that Florence Curran at the time of her last appearance to the petitioner and her witnesses ten years ago was a resident of the State of Hew Jersey and had her residence in the county of Hudson.

It is not intimated, of course, that the surrogate is in any stronger? position as to jurisdiction than is the orphans court, and it has been uniformly held that—

“The orphans court being a creature of the statute invested with special powers and jurisdiction in derogation of the powers of the courts established by the constitution, it can exercise no powers beyond those authorized by the statute.” In re Fritz Estate, 83 N. J. Eq. 610; In re Alexander, 79 N. J. Eq. 226.

It seems to have been commonly admitted by the authorities that the absence must be from the place where the person whose death is in question is shown to have established a residence.

“It is necessary that the person as to whose death it is sought to raise a presumption shall have been absent from his or her home, or place where he or she has established a residence; thus where a person has changed his residence from one state to another, the fact that he has not been heard of in the place of his former residence for seven years, raises no presumption of his death * * * and the mere absence of a person from a place where'his relatives reside, but which is not his own place of residence, and the fact that his relatives have not received letters from him for seven years, does not raise any presumption of death.” 13 Cyc. 300.

It clearly appears that Florence Curran had no residence in New Jersey at the time of her departure ten years ago.

The appellant must prevail and an order may be accordingly entered.


author: Buchanan, Vice-Ordinary.

text:
    In the matter of the estate of Murray Whiting Ferris, deceased.
    [Decided June 27th, 1923.]
    Corporate stock transferred to another in which voting power was retained by the transferer for a specified time, constituted an interest only of the transferer in the stock which was liable to inheritance tax, the ownership being in the transferee.
   Buchanan, Vice-Ordinary.

The executors of the estate of Murray Whiting Perris, deceased, appeal from the comptroller’s assessment and levy of transfer inheritance tax, contending that the comptroller erred—(1) in appraising at an excessive valuation one thousand shares of the preferred stock of the Perris Company; and (2) in including in the appraisal of the decedent’s estate two hundred and twenty shares of the common stock of the same company, which said last named shares appellants contend were not the property of decedent, but were the property of one John J. Magovern.

As to the first issue, it is sufficient to say there is nothing in the record which would justify this court in determining that the comptroller erred in his appraisal of the one thousand shares of preferred stock. This, indeed, was tacitly admitted by appellants on the argument.

As to the second issue, the two hundred and twenty shares of common stock in question had been the subject of a contract between Magovern and decedent some years prior to the latter’s death. The terms of that contract were evidenced by a written agreement executed some time subsequent to the making of the actual contract. It is contended, on behalf of the state, that the result of this contract was that'the ownership of the shares of stock in question remained in Mr. Ferris, with a transfer thereof to Magovern, to take effect ■ at the death of Ferris.

It is clear to my mind that such was not the situation in fact, at least as to the entire beneficial ownership of the shares of stock. By the transaction in question, a then present transfer of the beneficial ownership, or equitable ownership, of these shares, from Perris to Magovern, was effectuated, except that Perris retained the right to vote the shares of stock in question (and to that end the right to have the shares remain of record in his own name on the books of the company), during his own lifetime, or so long as it should be necessary for Perris to retain control of the two hundred and twenty shares to enable him to maintain his majority vote in the company. There is a further provision in the contract, that if Magovern should die during the period that Perris was to retain the voting power on the stock, then all of Magovern’s interest and ownership in the stock should terminate and cease. During this period so provided Magovern was entitled to all the dividends, but Perris was entitled to the voting power.

Under the circumstances, therefore, Magovern owned an interest in this stock. He owned the stock, less the interest which Perris had, viz., the retention of the voting power, and also subject to a contingent defeasance, if he, Magovern, should predecease Perris.

The comptroller erred, therefore, in appraising a tax on the Perris estate in respect of the complete ownership of the stock in question.

The tax should have been assessed only in respect of that which Perris owned and which was to be transferred to Magovern at Perris’ death, viz., the voting power on the stock.

The record will be remitted to the comptroller to the end that correction be made in this behalf.


author: Church, Vice-Ordinary.

text:
    In the matter of the account of the trustees of Alfred B. Jenkins, deceased; Farnham Yardley and Henry W. Montague, trustees under the last will and testament of Alfred B. Jenkins, deceased.
    [Decided June 27th, 1923.]
    Surrogates may be allowed fees on accounting by trustees of sums of money upon which surrogate’s fees have previously been paid upon accounting by executors—the offices of executor and trustee under a will'are distinct although held by the same person.

      Messrs. Wall, Haight, Carey & Hartpence (by Mr. Wall), for the appellants.

      Mr. Howard 1sherwood (by Mr. Kocher), for the respondent. ,
   Church, Vice-Ordinary.

This is an appeal from that part of the decree of the Essex county orphans court, dated July 1st, 1921, which adjudged the surrogate’s fees on the accounting to be $3,866.70.

The surrogate claims that he is entitled to the fees by-virtue of the last three or four sentences of section 200 of the Orphans Court act.

The appellants claim that as to the sum of $3,123,863.30 principal, and $20,305.49 income, the surrogate has already-had his one-tenth of one per cent., as those amounts were previously stated in a decree as the balances of corpus and income respectively from the executor’s account and the amounts determined by the decree were not subject.to audit by the clerk of the court. ’

The main point in the case is whether the court was justified when fixing the allowance to the surrogate in considering the balance of corpus carried from the executor’s to the trustee’s account. I believe that the offices of executor and trustee under a will are distinct and separate irrespective of the fact that the trustees and executors may be the same persons.

In my opinion this is a case parallel to those which hold that executors are entitled to fees on all moneys that come into their hands; that executors and .trustees, as I have said before, are both allowed fees is abundantly proved by decisions in this state.

I shall, therefore, advise a decree that the surrogate is entitled to his one-tenth of one per cent, in auditing the trustee’s account exactly as it came from the hands of the executors.