author: KAtzenbach, J.

text:
    Fred B. R. Unger, complainant, v. Newlin Haines Company, defendant. James R. Adams, administrator, &c., complainant, v. Joseph Kahrs et al., defendants.
    [Submitted December 11th, 1922.
    Decided March 5th, 1923.]
    1. The N. H. Company was adjudged a bankrupt. Certain stockholders, preferred and common, deposited their stock with a deposi tary, under a protective agreement, which appointed a committee and gave to the committee the legal title and control of the stock deposited, with no limitation on the powers of the committee to. do whatever in their judgment would promote the best interest of the depositors. The agreement further provided that in the event of a sale of the property of the N. H. Company that the committee could purchase the property and apply the stock deposited toward the payment of the purchase price.—Held, first, that the mutual covenants made between the depositing stockholders, and each other, and the committee, and the depositary set forth in the agreement and a supplement thereto, constitute a good and valuable consideration for the agreement; second, that the powers conferred upon the committee in the agreement are real powers coupled with an interest, and stockholders becoming parties to the agreement cannot revoke or modify the same except in the manner provided in the agreement.
    2. Stockholders who voluntarily enter into an agreement among themselves for their protection by depositing their shares of stock with a depositary, divesting themselves of the title to the stock deposited, appointing a committee to act for them, placing the title of the stock in the committee to do with it as their judgment dictates, are bound by the provisions of the agreement.
    3. Where a protective committee has acted within the powers conferred upon them by an agreement, the donors of those powers cannot nullify the obligation of a contract entered into by the committee with a third party under the express powers given to the committee by the donors.
    4. The court of chancery cannot disturb contract rights.
    On appeal from an order of the court of chancery.

      Mr. Martin P. Devlin and Messrs. Wall, Haight, Carey & Hartpence, for J. Hector McNeal, defendant-appellant.

      Messrs. Katzeribach & Hunt, for the Newlin Haines Company Stockholders’ Protective Committee, defendant-appellant.

      Mr. Carlton Godfrey and Mr. Lewis Starr, for Carlton Godfrey and others, petitioners-respondents.

      Messrs. Scammell .& Besore, for James R. Adams, Adrnr., &c., et al., complainant-respondent.

      Mr. Murtin V. Bergen, for Norman Grey, Esq., receiver of Newlin Haines Company.
   The opinion of the court was delivered by

KAtzenbach, J.

This is an appeal of Joseph Kahrs, and others, constituting the Newlin Haines Company Stockholders’ Protective Committee (hereinafter referred to as the committee) , from an order of the court of chancery, dated August 7th, 1922, which enjoins the committee from borrowing upon the shares of the capital stock of the Newlin Haines Company (hereinafter referred to as the company), deposited with-the committee by any stockholder who dissents from the use of the stock deposited by him for the purpose of carrying out the provisions of an agreement dated April 14-th, 1922, made between the committee and J. Hector McNeal, relative to the purchase of the St. Charles Hotel property at Atlantic City, and from using any moneys which may have been borrowed by the committee on such shares for the purpose mentioned. The order further directs that tire receiver of the company send a circular letter to each depositing stockholder informing him of the agreement mentioned and requesting each stockholder to elect to agree or disagree to the purchase, to the end that those who assent may receive the shares of stock provided by the committee’s plan, and those who dissent may receive a cash dividend from the proceeds'of the sale of the St. Charles Hotel property made under a prior order of the court of chancery. The order further provided for the sending of a copy of the agreement mentioned to each stockholder and the holding in abeyance of the consummation of the sale of the property until the further order of the court.

Before considering the question of the legal soundness of the order appealed from, it is necessary for a proper understanding of the questions involved to give a brief history of the circumstances which led up to the making of the order.

The .Newlin Haines Company is a New Jersey corporation and was the owner of the St. Charles Hotel property. In 1918 the company was adjudged a bankrupt in involuntary proceedings. On October 14‘th, 1918, a stockholders’ protective committee was organized. An agreement was drafted and circulated among the stockholders. After reciting the circumstances making necessary the formation of a protective committee and the benefits of united action, the agreement provided that any preferred or common stockholder of the company could become a party to the agreement by depositing his stock certificate or certificates with the depositary, the Commercial Trust Company of Philadelphia. Proper instruments of transfer were to accompany the certificates deposited. Certificates of deposit were to be issued by the depositary to the depositing stockholders. The stock so deposited was to be held by the depositary subject to the direction and control of the committee as if the committee were the legal owners thereof. The committee was vested with the legal title to and ownership of all the deposited stock, with no limitation imposed on the powers of the committee to do whatever in their judgment would promote the best interest of the depositors. The committee was also empowered to sell the deposited stock at such price, whether in cash and (or) other securities and property, and (or) upon such terms as the committee, in its discretion, should deem advantageous. In case the property should be acquired by the committee the agreement authorized the committee to sell the same for such price, in cash or securities, as the committee might think advisable, or to cause to be formed a new corporation and to transfer the title of the property to such corporation for stock or cash, or both, as the committee might deem for the best interest of the depositors. The agreement further provided a method for making amendments thereto. The above are the important features of the agreement. From these provisions can be read the broad powers given to the committee. The purpose of these powers was to enable the committee to do those things which in their judgment were for the best interest of the depositing stockholders.

On October 20th, 1921, under the provisions relating to amendments set forth in the original agreement of October 14th, 1918, a supplemental agreement was made which confirmed the vesting of the complete title of ownership of the deposited stock in the committee with no limitation upon the committee in doing whatever in their judgment would best protect the depositors, and this without prior notice to the depositors.

For upwards of three years after the making o,f the agreement of October 14th, 1918, the committee was active in endeavoring to conserve the assets of the company by preventing a sale of the property. In these efforts the committee was successful. In the meantime the property had been successfully operated. Interest on mortgage encumbrances, aggregating over $700,000, and current taxes were paid. The property enhanced in value. In 1921 it was thought that the assets of the company were in excess of its liabilities. The charter of the company had been forfeited by the state for the company’s failure to pay its franchise taxes. An application was made to the court of chancery during the pendency of the bankruptcy proceedings for the appointment of a receiver. The application was granted. Norman Grey, Esq., on July 19th, 1921, was appointed receiver. The committee and Mr. McNeal raised funds to the amount of $140,000, and purchased receiver’s certificates to this amount. This enabled the receiver to terminate the bankruptcy proceedings by the payment of the debts of the company and the expenses of the bankruptcy proceedings. The receiver has since been operating the property profitably. The charter of the company was reinstated.

From what Mr. McNeal had already done to assist in terminating the bankruptcy proceedings, it was apparent that he was interested in acquiring the property. In order to take the property out of the hands of the receiver, to rehabilitate it, and to provide sufficient funds for these purposes and for working capital, the committee, under date of February 10th, 1922, made two agreements with Mr. McNeal. One agreement was for the purpose of redeeming the property from the receiver. The other agreement provided for the formation of a new company and the merger of the new company with the old company, the creation of new securities for the financing of the company created by the merger and for delivery to the preferred and common stockholders of the old company in the amounts provided by the agreement. These agreements made it necessary that the company be taken out of the hands of the receiver. To this end a petition was filed in the court of chancery. Two1 objectors then appeared. One, Carlton Godfrey, claiming to hold two shares of undeposited stock, the other, James R. Adams, administrator of the estate of James Clendenin. Clendenin had deposited all his stock under the agreement of October 14th, 1918, and had been, during his lifetime,, chairman of the committee. It is unnecessary to consider the merits of the contentions made by these two objectors. It is sufficient to say that they were successful in preventing the redemption of the property. The chancellor, at the time -of the denial of the petition, directed by the same order a public sale of the property to be made by the receiver. Erom this order or decree no appeal was taken. In pursuance of the instructions of the chancellor the receiver, on April 22d, 1922, sold the property. It was purchased by the committee for the sum of $1,463,000. The sale was confirmed by the chancellor. The committee had bid this amount under the direction of Mr. McNeal, who, on April 14th, 1922, had entered into an agreement with the committee, which provided for the formation, of a corporation to be known as the St. Charles Hotel Company, with an issue of $500,000 of seven per cent, preferred stock, ten thousand shares of common stock of no par value, $3,000,000 of bonds, to be secured by a mortgage upon the property if purchased by the committee. Payment to the committee was to be made in the securities of the new company. The further portions of the agreement are not necessary at this time to be stated as they principally relate to details of the plan of reorganization set forth in the agreement. Again Mr. Carlton Godfrey appeared as the holder of a certifícate of deposit for one share of the preferred capital stock of the company (Newlin Haines Company), and filed a petition seeking to have the amount due upon his one share to stock paid in cash. He questioned the- right of the com- • mittee to apply deposited shares towards the payment of the purchase price of the property. Mr. Godfrey, in his petition, upon information and belief, alleged misconduct and fraud on the part of the committee and others. The petition prayed for an injunction against the committee to restrain their use of the stock deposited either as collateral for borrowing or for use as a credit in settling with the receiver, &c. This" petition was fully answered. The answers are supported by affidavits of those having knowledge of the' facts and completely refute the charges of fraud and misconduct alleged in the petition.

Mr. James R. Adams, administrator of the estate of James Clendenin, again came forward as an objector. He filed a bill of complaint in the court of chancery in which he alleged lack of notice from the committee of those things intended to be done by them, and the insolvency of the Clendenin estate. The bill further set up the. contention that the complainant was not bound by the acts of the committee and that he had a right to claim and did claim payment in cash for the distributive share to which he would be entitled from the proceeds of the receiver’s sale. The theory of the bill appeared to be that as the Clendenin estate: was insolvent and cash would be better for the purpose of settling with the creditors of the estate than the securities which the estate would get in the plan of reorganization, that the complainant was entitled to cash. The bill was fully answered. The chancellor consolidated the petition of Mr. Godfrey and the bill filed by Mr. Adams. Both were heard together. The chancellor, upon the conclusion of the hearing, filed an opinion from which the order of August 7th, 1922, resulted. The chancellor held that where stockholders of a corporation deposit their shares with a committee with power in the committee to reorganize the company and purchase its assets at any sale for the stockholders’ account and benefit, with provision that if the stockholders dissent from any such action, they shall express their objection within a certain time or be deemed to consent, nevertheless, as the power is not coupled with an interest it is subject to modification or revocation, and depositing stockholders may dissent from the action of the committee by giving actual notice thereof, irrespective of the terms therefor prescribed in the ’agreement between the stockholders and the committee. The effect of this decision was to nullify the provisions of the contract made between the depositing stockholders, -the committee and the depositary. The chancellor did not find the committee guilty of fraud and misconduct. In fact none was proven. ’ The question raised upon this appeal is whether stockholders who voluntarily enter into an agreement among themselves for their protection by depositing their shares of stock with a depositary, divesting themselves of the title to the stock deposited, appointing a committee'to act for them, placing the title of the stock in the committee to do with it as their judgment dictates, are bound by the provisions of the agreement, or whether they can at will revoke or modify the same. If the views of the learned chancellor are correct, stockholders’ protective agreements are but a rope of sand. The one entered into in this case is in the usual form and contains the provision for vesting absolute power over the stock deposited in the committee customarily found in such agreements. The agreement could not be couched in stronger language or contain broader powers to effectuate its purposes. If this agreement did not empower the committee to make a binding contract with Mr. McNeal which would include the use of the stock deposited with it and to which it had the legal title, without further specific authorization from the committee, then no agreement could be drawn which would give a committee -the powers necessary to make a binding contract containing provisions for the use of the stock deposited under the agreement.

If the view entertained by the court below is sound, the work done by this committee has been futile. We have seen how the committee was able to frustrate sales of the property at times when there- would probably have been- no salvage for the stockholders. By its action and through the very agreements complained of it was enabled to sell the property at such a sum as to insure to the depositing stockholders securities of value in the new company and to the non-depositing stockholders cash for their distributive shares of the purchase price. The immediate effect of the order appealed from is to malee it impossible for the committee to perform the contract with Mr. MdSTeal. The contract -provides as follows:

“Seventh. Upon the stock credit provided in paragraph ‘eight,’ or its equivalent, being allowed for the purpose of making settlement with the receiver for the property, McNeal agrees to then furnish the committee with such further moneys as it may require to make, perform, carry out and complete any bid for the aforementioned property made by it as herein provided.
“Eighth. The committee shall, in the event the aforesaid property be acquired by it, tender to the receiver of the Newlin Haines Co. [in part payment of its bid] all shares of stock of said company now held or controlled by said committee, and request that the share of the proceeds of sale accruing to the committee by virtue of its ownership or control of said stock, be credited thereon, in lieu of any cash distribution, and that said amount be offset against that much of the purchase price. Said committee shall make all reasonable effort to acquire compliance with said request, but assumes no obligation in the event of refusal to allow the same. The committee agrees that any further emoluments or distributive shares arising by virtue of the said purchase or thereafter to be received from the said receiver [arising from whatever course] distributed to the shares held or controlled by the committee shall forthwith upon being so received be delivered up to the said St. Charles Hotel Company.”

By these provisions the committee must apply the distributive shares of the stock they hold on account of the purchase price of the property before it becomes obligatory upon Mr. McNeal to provide the cash necessary to carry out other provisions of the agreement. The effect of the order appealed from, which gives an election to the depositing stockholders to withdraw their stock, is to make it impossible for the committee to carry out their covenants because they cannot apply the distributive shares they thought they controlled at the time of the making of the agreement to the payment of the purchase price of the property as provided in the agreement with Mr. McNeal. This would release Mr. McNeal from his obligations. The committee would be unable then to pay for the property. There would be no alternative but to resell the property, and without that concert of action obtainable through the committee holding some ninety per cent, of the outstanding stock, it is doubtful if the property would sell as advantageously at a re-sale.

The learned chancellor supports his views of the agreements in question by holding that although the legal ownership of the stock was placed in the committee by the original agreement that the stockholders, nevertheless, are the beneficial owners of the stock and the committee are the fiduciaries; that the relationship of trustee and cestui que trust obtains; that the vesting of the legal ownership of the stock in the committee in terms, added nothing to the interest which they already had; that the powers of the committee (trustees) are not coupled with an interest, and therefore may be modified or revoked by the cestui que trust; that the provisions of the agreement cannot operate to deprive a depositor from dissenting from any plan that the committee may propose; that no' consideration passed from the committee to the stockholders whereby they are bound hand and foot and rendered unable to act for themselves by reason of the terms of this seemingly iron-bound contract. From these views we dissent. In the first place, the mutual covenants made between the depositing stockholders and each other, and the committee and the depositary, set forth in the original and supplemental agreements, constitute a good and valuable consideration. In the second place, we are of the opinion that the powers conferred by the depositing stockholders on the committee are not within the class of naked powers uncoupled with an interest and revocable, mentioned by the chancellor, but that the powers conferred upon the committee are real powers coupled with an interest. The stockholders parted with their title to their propertjc They directed that' the depositary was to use the stock as directed by the committee in their discretion. The committee acted upon! the authority given to them by the agreement. They made the contract with Mr. McNeal. On the faith of this contract Mr. McNeal, among other things, furnished the committee with $35,000 to enable them to bid at the sale. After giving to the committee powers which they in good faith exercised, the stockholders cannot withdraw their shares of stock deposited by them and rid themselves of the obligations they assumed, or authorized their agents, the committee, to assume, by becoming parties to the protective agreement.

To permit this'would be to permit principals to repudiate the acts of their agents. The committee has an interest in the shares of stock owned and controlled by them to protect themselves, for example, for their liability to Mr. McNeal for the $35,000 borrowed from him for the purpose of the sale and now in the hands of the receiver to be applied to the purchase price of the property. It would be inequitable to permit depositing! stockholders to withdraw their stock after a committee, relying upon deposits of stock and in pursuance of the powers conferred by ah agreement, had entered into binding contracts with third parties.

Where a committee has acted within the powers conferred upon them by an agreement the donors of those powers (in this case the stockholders) cannot nullify the obligation of a contract entered into by the committee under the express powers given to the committee by the donors.

To support his views that the powers of the committee are not coupled with an interest and therefore may be modified or revoked the chancellor cites two New Jersey cases.

The first case cited by the chancellor is Den v. McCann, 3 N. J. Law 31. This was an action in ejectment. There was a devise to executors to sell. Two of the executors died and the surviving executor sold to a stranger who almost immediately conveyed the property back to the executor. The case dealt with the difference between a devise “that executors shall sell land” and the devise “of land to executors to sell.” In one case the court said: “The descent is broke. The land vests in the executor as joint tenants and goes to the survivor who can legally convey. In the other ease the descent is not disturbed but the fee remains in the heirs-at-law until the executors sell. They then have only a naked authority which cannot survive. The first is in fact an authority coupled with a legal title; the isecond a bare, naked authority. That the executors have an interest in their office by way of an allowance or compensation for their services does not in my mind affect this case.

“When the books speak of the authority, coupled with, an interest, an interest by way of benefit or emolument for transacting business is not intended; but an actual interest or right in the thing to b.e convej'ed.”

This case does not consider the question of repudiation by the donor of acts done in pursuance of a power of attorney prior to the revocation which, is the question at issue in the present case, and therefore does not in our opinion support the opinion of the chancellor.

The other ease cited by the chancellor is the case of Durbrow v. Eppens, 65 N. J. Law 10. This was a case where a syndicate was formed to issue policies of insurance. Several parties contributed ratably to a fund, executed a deed of trust creating the same party the agent for each, and covenanted to maintain the fund, notwithstanding withdrawals by losses, and empowered the agent to handle the trust and pay losses out of it. One of the underwriters died and his executor claimed that the power conferred by the deed of trust upon the agent terminated with his testator’s death. The supreme court held that the power survived the death of the donor, and that each of the donees, together with the survivor in interest of any deceased donee, were bound by the several deeds of trust made to carry out a common purpose. While the opinion of the supreme court rendered by Mr. Chief-Justice Depue refers to the established rule of common law that the death of the principal puts an end to the agency where the authority is not coupled with an interest and no act of agency subsequent thereto is binding upon the estate of the principal, yet in the'case under consideration he held that the power was coupled with an interest. This case, we think, supports the view of this court to the effect that the powers given to the committee under the protective agreement were really powers coupled with an interest.

The effect of the decision below is to make an agreement for the parties different from the one they made for themselves. This the court of chancery cannot do. Contractual rights cannot be disturbed. Mr. Justice Brewer, in the case of Merchants Loan and Trust Co. v. Chicago Railway Co., 158 Fed. Rep. 923, said, in speaking of a complicated street railway problem in Chicago, “that the ordinance tendered by the city was reasonable and fair, and that as a business proposition it would have been wise for all parties to accept it; but the court does not make contracts for parties. It deals with legal rights, as the parties have, by contract, made them, and although it may believe that a party insisting upon those rights is probably, or even certainty, bound to suffer loss, yet while he insists it must protect him in his insistence. There is no wide discretion vested in the chancellor which permits him to disturb contract rights—rights of property.” * * * “Of course, there can be no question about this. It appears from the discussion that this whole scheme is predicated upon the fact that the physical condition of the city railway system on the north and west sides is poor; that it needs improvement; that the interests there are conflicting; that franchises are expiring or have expired; rights are mingled and perhaps confused; separate liens and separate corporate interests shall be merged in one corporation, whose duty it shall be to borrow money enough to put the physical property in good condition. Now,- that may be a wise business proposition, and if the court had power to take hold of these things and do for the people, who are the mortgage bondholders, that which it thinks best for them, we might have no hesitation in sustaining this; but every man in this country decides questions in respect to his own property for himself. Life, liberty, and the pursuit of happiness are guaranteed to each one. They are inalienable rights, and although a man misjudges what is best for him, that fact gives no court the right to compel him to act otherwise.”

Where a committee has acted within the powers conferred upon them and in good faith, the depositing stockholders cannot withdraw their stock from the control of the committee unless the agreement so provides. The agreement establishes-the rights of the parties and a court cannot read into it any other or additional terms * * * or make a new contract for the parties. Fletch. Corp. 4841.

Did the protective agreement authorize the acts complained of, especially the use of the stock, to apply upon the purchase-price of the property, if bought by the committee ? The agreement provides as follows:

“(d) By the seventh section the committee is, inter alia, authorized to appear in legal proceedings, particularly ‘to bid or refrain from bidding for all or any portion of the property of thei company at any judicial or other sale; to purchase any or all of such property for the account of depositors at any price which committee may in its discretion deem advisable; to apply the said stock or any portion thereof or the dividends payable thereon out of the purchase price of any such property in satisfaction of any bid or toward the payment of the purchase price of any property purchased, to distribute pro rata among depositors any or all property coming into its hands at any time for the security of said depositing stockholders; or to resell the same in whole or in part for such price, whether in cash or securities, or partly in cash or partly in securities and upon such terms as to payments or otherwise as committee in its discretion may deem advisable.’ ‘To take any action or proceedings which committee in its discretion may deem advisable for perfecting the title, ownership and possession of company’s property or any part of it or for the purpose of expediting any reorganization or avoiding litigation.’
“(e) By paragraph 8, in the event of acquiring the property, ‘committee may sell it in whole or in part for such price whether in casi) or securities or partly in cash or partly in securities and upon such terms as to payment and otherwise as company deems advisable. Committee may in such event cause a new corporation for stock or casii or partly in one and partly in the other as committee deems for the best interest of depositors, the whole or any part of the property which committee may acquire * . * * committee shall also have the power to' cause such new corporation to incur a debt sufficient to pay and liquidate any sums of money which committee deems it advisable to raise,’ whether for expenses for the purpose of the new corporation or for carrying out the terms and provisions of ‘any plan or agreement or reorganization of the company.’ ”

In their agreement with Mr. McNeal- the committee clicl nothing more in this respect than to* exercise the powers expressly conferred by the paragraphs above quoted.

While the chancellor found the committee guilty of no fraud or misconduct, in his opinion he stated, “But, assuming for the sake of argument, that the tripartite agreement is strictly enforceable according to its liberal terms, nevertheless, when a plan or reorganization is entered into in which (instead of giving all of the property and things of value which are to be acquired under it, to the stockholders, less, of course, reasonable expenses, as required therein) a provision is made, as here, for the giving of at least eighty-five per cent! of an entire issue of ten thousand shares of no par common stock to the promotor of the reorganization by way of compensation, the plan is not one comprehended by the terms of the agreement, and the depositors, therefore, have a right to signify their dissent by actual notice to the committee, quite irrespective of the particular kind of notice prescribed by the terms of that agreement. The interest represented by this non par stock is of course exactly the same as it would be if it had par value; and par value would not restrict its owner to the amount of interest written upon its face,, for, if the enterprise were a success, the stock would be appreciated and might become worth much-more than its par value.”

This statement, we feel, needs a few words of comment. The common stock of the Newlin Haines Companjq at the time of the formation of the committee, was worthless. The preferred stock came airead of it and that also at the time was worthless. The work of the committee and changed business conditions made the St. Charles property more valuable. This gave to the preferred stock of the Newlin Haines Company value. The enhancement in -value was insufficient to malee the common stock of any value.. The mortgages, receivers’ certificates, and expenses amount to approximately $1,100,000. The property sold for $1,463,000. The salvage goes to the preferred stockholders of the Newlin Haines Companjr, who receive, under the plan of reorganization for each share of the preferred stock of that company, one share of the preferred stock of the new company. The common stockholders of the Newlin Haines Company will receive fifteen per cent, of their former holdings. The stock which goes to Mr. McNeal has no value. It only becomes valuable if he makes it so. The committee are acting entirely within their powers in issuing to him, this stock. No one would advance to the- committee the funds necessary for their plan of reorganization on more favorable terms than'Mr. McNeal. There is no impropriety, as we see it, in the committee making the contract it did with Mr. McNeal with reference to- the common stock of the new company.

As to the status of the objectors. Mr. Godfrey bought a certifícate for one share of preferred stock issued by the depositary. The protective agreement provides as follows:

“Each stockholder depositing his stock as aforesaid shall be entitled to a certificate of deposit in such form as may be determined by committee * * *. By receiving a certificate of deposit issued by depositary, any recipient or holder thereof shall thereby become and be a party to this agreement and be bound by its provisions with the same force and effect as though an actual subscriber thereto.”

■ Mr. Godfrey’s rights could rise no higher under any circumstances than those of hi's transferor. Mr. Godfrey’s predecessor in title, by the deposit of the one share of preferred stock for which the certificate of deposit was issued, had become bound by the provisions of the protective agreement. Mr. Godfrey, when he purchased the certificate, likewise became bound by the provisions of the agreement which we have held prevented the action desired by Mr. Godfrey’s petition. This makes it unnecessary to consider the status of one who purchases a standing or license, as it were, to institute litigation.

Mr. Clendenin in his lifetime became a party to the protective agreement. In express terms the agreement bound the representatives of depositors. Mr. Adams, as the administrator of the Clendenin estate, stood in the shoes of his intestate. The agreement bound Mr. Clendenin. It binds Mr. Clendenin’s representative, Mr. Adams. On the question of the amendment of the basic agreement, it perhaps should be said that Mr. Adams admitted receiving the notices regarding the amendment of October 20th, 1921. He did nothing. He made no claim that the agreement of October 14th, 1918, could not be amended in the manner in which it was until May, 1922. This was after Mr. McHeal had entered into his agreement with the committee. Under these circumstances laches would also be a bar to the relief which Mr. Adams seeks in his bill of complaint.

For the foregoing reasons the order of the court of chancery dated August 7th, 1922, is reversed in tofo to the end that both the petition of Mr. Godfrey and the bill of Mr. Adams be dismissed, with costs.

No. 38—

For affirmance—None.

For reversal—The Ci-iiee-Justice, Swayze, Teen chard, Parker, Bergen, Kamsch, Black, Katzenbacii, White, Gardner, Ackerson, Van Buskirk—12.

No. 41—•

. For affirmance—None.

For reversal—The Chief-Justice, Swayze, Tren chard, Parker, Bergen, Kalisoh, Black, Katzenbach, White, Gardner, Ackerson, Van Buskirk-—12.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    John H. Kohler, petitioner-respondent, v. Edna T. Kohler, defendant-appellant.
    [Submitted December 11th, 1922.
    Decided March 5th, 1923.]
    1. In an action for divorce on the ground of desertion, after the statutory period of two years immediately following the act of desertion has expired, and no effort in good faith by the offending party has been made to return to the deserted home and to renew cohabitation, the right to return has gone, the benefit given by the statute to the party offended against has become vested, and he or she can never be deprived of his or her right to a divorce, except by his or her own act.
    2. A, wife deserted her husband and refused to live with him thereafter notwithstanding reasonable effort on his part to induce her to do so. Her desertion was willful and obstinate, and continued for the statutory period of two years, less two days. On the second day before the right of the husband to a divorce became complete she met him at a base ball game and there expressed to him a desire to resume their matrimonial relations.—Held, that, under the evidence, her offer to return was not made in good faith and did not stay the running of the statute against her.

      The following opinion was prepared by the late Judge Robert Williams, in compliance with the assignment to him. It clearly expresses the view of the court upon the matters involved in the litigation, and is adopted by the court as its own opinion in the cause.
    On appeal from the court of chancery.

      Messrs. Waddington & Matthews, for the defendant-appellant.

      Mr. Wilbert V. Pike, for the petitioner-respondent.
   The opinion of the court was delivered by

Williams, J.

This is an appeal from a decree of the court of chancery, divorcing the petitioner, John Kohler, from his wife, Edna T. Kohler, on the ground of desertion. The case was heard before Norman Gray, advisory master, but no opinion was filed. The parties were married March 5th, 1916, and lived together until June 17th, 1919. On this day the wife left her husband’s home, and never afterward returned to it except once, about a month after she left, taking a constable with her, for the purpose of removing some of the household goods which she claimed to own. The petition was filed July 23d, 1921, one month .and six days after the expiration of the two-year period. The wife denied the desertion, and filed a counter petition, charging her husband with adultery with one Ethel Smith. The cross petition was dismissed by the master, and a reading of the testimony shows that there was no evidence upon which it could have been sustained.

There was one child, a boy, four years of age at the time of filing the bill; he was taken by his mother and has lived with her since the separation. It is quite evident that the married life of these parties, at least toward the end of the period when they lived together, was unhappy, and that both parties were to blame for this condition. The wife, in her testimony, charges the husband with unnatural practices, but he denies this, and although he was not everything that a husband ought to be and his treatment of his wife was frequently unkind, nothing was proved against him which would justify her in leaving him. After the separation he did everything that a husband could be asked to do, in reason, to induce his wife to return to his home, and the advances that he made looking to this object satisfied him that further effort on-his part would be unavailing. The wife informed him that she had left him for good and made the same statement to other witnesses; Imtendered her money for the support of herself and child, but she refused. It cannot be said, therefore, that the husband is not entitled to a divorce because of his failure to make reasonable effort to induce his wife to return.

It was attempted to be proved on the part of the defendant that just before the lapse of the two-year period, which both parties agreed was June 17th, 1921, she attended revival meetings held at Alloway, from May 29th to June 19th, 1921, and that, as a result of her change of heart, she concluded that she ought to return to her husband, and volunteered to him to do so, but that he refused to listen to her proposition. She says it was on June 15th, 1921, because she remembered that his right to a divorce would be complete on the 17th, two years after she left him, and he says it was June 18th, 1921, because it was the day after the two-year limit expired. It is a curious thing that her repentance, if she did repent, came at the very end of the two years fixed by the statute; it is also curious that both parties had so clearly in their minds the last day of grace existing in favor of the wife. If he is right as to the date, 'then, under our decision in Gordon v. Gordon, 89 N. J. Eq. 535, her repentance came too late; his right to a divorce bid become vested, and nothing that she could afterward do could deprive him of the enforcement of that right. The chief justice in Gordon v. Gordon, supra (in explaining Myles v. Myles, 77 N. J. Eq. 265) says: “During the whole of the two years immediately following the act of desertion the offending spouse is offered an opportunity of repenting of his or her sin, and may put an end to the running of the statute by exhibiting such repentance to his or her wife or husband, and offering in good faith to return to the deserted home and to renew cohabitation. But if he or she declines to take advantage of the opportunity to repent offered by the statute, and persists in the desertion for the full period of two years, the right to return has gone, the hour of repentance has passed, the benefit given by the statute to the spouse offended against has become vested and he or she can never thereafter be' deprived of that benefit—of his or her right to a divorce—except by his or her own act. Repentance by the sinner, offers of return by him or her, are then of no avail.”

If the husband is right as to the date, then that ends the matter. The question of date'therefore becomes important. The alleged offer of repentance and to return was made at a base ball game, about five o’clock in the evening; the minister of the Baptist church at which the revival meetings were held testified that the date was between the 5th and 19th of June, 1921, because it was in the last two weeks of the evangelist’s stay in Alloway, and that four or five games of base ball were played a week; it was also testified that the week day games, as distinguished from Saturdays, were known as “twilight games” at this season of the year. The petitioner himself testified as to this as follows:

“Q. And do you recall whether it was a Saturday or day during the week?
“A. Let me see, I just don’t remember whether it was a day during the week. It was a day during the week. I will tell you why I know it, because it was in the evening.
“Q. And you were playing twilight-games down there then?
“A. Yes, sir.”

June 18th, 1921, was on a Saturday, and the petitioner is therefore wrong as to his date, as he admits the game was played on a week day. The defendant testifies that the date was June 15th, which would be on a "Wednesday, and that is within the two weeks’ period from June 5th to 19th as testified to by the minister. The burden was upon the petitioner to prove his case, and all uncertainties of fact should be resolved against him. Assuming that the date fixed by the wife, June 15th, 1921, is correct, and which would be within the two-year period, we must consider whether the offer of repentance and to return, made at such a late date, and at such a place as a public base ball game, was made in good faith.

The defendant testified upon direct examination, that she was at the base ball game on June 15th, 1921; that she had had a talk with Mr. Graham, the ministér, about joining the church and that she desired to do so, and she afterwards had a talk with her husband.

“Q. And what was the conversation you had with him at the ball game?
“A. I asked him to take me back.
“Q. And what was his answer to you?
“A. ‘No, I couldn’t see it that way.’
“Q. And did you endeavor to have further conversation with him?
“A. No, 1 didn’t bother after that, after I met him down to the ball game and had a talk with him there, I didn’t.”

Upon cross-examination she testified that she thought she could not join the church until she had had a talk with her husband; that she wanted to ascertain from him whether or not he would meet her at some other time and talk the matter over; that she wanted to make arrangements for him to meet her so she could have a talk about it, and he refused to do it.

The petitioner testified that she said: “I am going to join the church. "Will you forgive me for what I have doné,” and he replied, “Do as you please. I won’t do nothing for you. I won’t do anything against you.”

The minister testified that the defendant had asked him if he would see her husband and ask him to meet her with regard to talking over the matter of the reconciliation; that he had a conversation at the ball game and after talking with him the husband said he thought it would be useless to talk the thing over with his wife; that he had given her her opportunity before and he thought it would be useless, any further conversation. That later in the day the petitioner came around taking the collection as he generally did at the game. The defendant stopped him; he was close enough to overhear parts of the conversation and that the purport of it was that she wanted to meet him or to-have a further meeting another time to talk the thing over; he did not hear his reply and this was about half an hour after he had talked to petitioner.

This conversation took place at a ball game; the defendant was standing with some others back of a wire backstop, and the petitioner came by with his hat in hand taking up a collection to defray the expenses of the game : the defendant put in her contribution and stopped him, as he was passing, to speak to him. It was certainly a strange place to seek a reconciliation, at a bail game, during the progress of the game and when her husband was taking up a collection and surrounded by people. Instead of seeking him out with the proposition, she ran across him, almost by accident, and took occasion to speak to him as he was passing by.

Taking all the circumstances and surroundings of the case, her state of mind during a religious revival where she thought it necessary to ask her husband’s forgiveness before she could join the church, the casual way in which she met and spoke to him and made no further effort to have the talk with him she asked for, in a more suitable place and at a more suitable time, as she had another full day by her own reckoning, it is more probable that the offer she made was to ease her conscience for her past actions, than a genuine offer in good faith to go back to the deserted home and to renew cohabitation with her husband, a man whom she accused of unnatural practices, adultery and abusive language, and whom she had persistently ignored up to within a day or two of the expiration of the two-year period.

In our opinion this offer to return, considering the circumstances surrounding it, was not a genuine offer in good faith to go back to the deserted home and to renew cohabitation, and a careful consideration of the proofs submitted leads us to the conclusion that this decree should be affirmed.

For affirmance—The Chief-Justice, Swayze, Teen-chard, Parker, Bergen, Kalisch, Black, Katzenbach, White, Gardner, Ackerson, Van Buskirk—12.

For reversal—None.


author: Ackerson, J.

text:
    Annie E. Torrens, petitioner-appellant, v. Robert K. Torrens, defendant-respondent.
    [Submitted November 21st, 1922.
    Decided March 5th, 1923.]
    1. In order to prove adultery by circumstantial evidence two facts must be established; a criminal disposition or desire in the mind of both the defendant and his partieeps eriminis, and an opportunity to commit the crime.
    2. Where the defendant, a man who has separated from his wife, the petitioner, by mutual consent, takes up his abode in a flat with his father and aunt who employ as housekeeper a woman not living with her husband, and after the death of both the father and aunt, the defendant continues to maintain his home in the flat and employs the same housekeeper and they both continue to live on there alone together, and there is no proof of any desire or inclination on the part of either to commit adultery.—Held, that, although there was an abundance of proof of opportunity to commit the offence, nevertheless, the lack of proof of any desire or inclination to do so would preclude the petitioner! from obtaining a divorce on the ground of adultery.
    3. To establish adultery by inference, the circumstances from which the inference is drawn must be such as would lead the guarded discretion of a reasonable and just man to the conclusion of guilt.
    4. If the circumstances, taken singly and together, admit of two interpretations, that which favors innocence should be adopted.

      On appeal from a decree of the court of chancery dismissing a petition for divorce.

      Mr. Philip J. Schotland, for the petitioner-appellant.

      Mr. Clyde D. Pouter, for the defendant-respondent.
   The opinion of the court was delivered by

Ackerson, J.

This is an appeal from a decree of the court of chancery dismissing a petition for divorce a vincula filed by the wife against her husband charging him with living in adultery with his housekeeper at his residence in the city of Bloomfield.

There is no direct evidence in the case of the commission of the act of adultery, and the charge is sought to be established circumstantially, which, under the well-recognized rule, can only be done where two facts are established,—a criminal disposition or desire in the mind of both the defendant and his particeps criminis, and an opportunity to commit the crime. Berckmans v. Berckmans, 16 N. J. Eq. 143, and Black v. Black, 30 N. J. Eq. 223.

The petitioner and defendant were married in 1906 and lived together until July, 1911, when they separated by mutual consent, the husband eventually, in 1916, going back to live at the home of his father, who, with defendant’s aunt, were living in a flat on Dodd street, in Bloomfield. The father and aunt being well advanced in years, defendant’s niece, with their consent, in September, 1917, procured the co-respondent, a married woman who was not living with her husband, and who was a friend of the family, to go to the flat and keep house for them, and a little while later the co-respondent’s mother, a woman about eighty years of age and in feeble health, was brought from an almshouse by the defendant to live in the flat so that she might be near her daughter. In 1917, defendant’s father died in the flat, and about two years later his aunt died there and a little later the housekeeper’s mother died there also, and the defendant, who was then about fifty years of age, thereafter continued to maintain his home there and retained the same housekeeper, and they have both continued to live on there by themselves ever since, against the protests of the petitioner and some of defendant’s relatives, and the reason given by the defendant for so doing is that he wanted a home of his own and did not want to be a lodger in another’s home. ■

Aside from the fact that the defendant and co-respondent have lived together by themselves in this flat for approximately two years under the circumstances just related, there is very little evidence which sheds any light upon the relations existing between them. None of the witnesses testified to having seen any manifestations of affection between them nor any improper conduct on the part of either. It does appear from the evidence that defendant wrote a letter to his wife on June 13tli, 1919, from which the following extract is taken, viz.: “It has seemed to me daily that I ought not to be living with another man’s wife, on the other hand I am going to have a home and not board. If the thought has occurred to you that you ought not to allow it, or that I ought to take you out of Bamberger’s store, then you must think of my income as $20 per week. Can it be done with happiness, etc.,” but when this excerpt is read in conjunction with the context of| the letter, it will at once appear that he had therein informed his wife that his housekeeper’s mother was then living with them in the flat; that she was eighty years old, and in rapidly, failing health, and could not live long, and keeping in 'mind that he was waiting to his wife who would be the last person to whom he would make any admission of improper conduct, it seems to us that the most unfavorable interpretation that could be put upon the above quoted language is that the defendant realized that maintaining a home for himself in this flat with a housekeeper who was separated from her husband, might be considered unconventional, but the language was clearly not rrsed in the sense of implying guilty conduct. There is also evidence of two letters written by the housekeeper to the petitioner referring to letters received by the defendant from petitioner regarding support for their daughter, and the suggestion is made that this tends to show the intimate relations existing between defendant and his housekeeper because it is inferred that he permitted her to reply to the letters he received from his wife and thus champion his cause, but there is nothing in this suggestion because, in the first place, there is nothing whatever in the housekeeper’s letters to indicate any meretricious relation between the defendant and herself, and in the second place there is no evidence that the defendant ever saw them or knew that they had been written, and in fact they both, say that the defendant did not know it. There is also evidence that the defendant only paid the co-respondent $8 per month for her services, and that sometimes, when he could not meet all the household expenses, she used some of her own money for that purpose, but she was getting her board and lodging and she had for some time been receiving about $25 a month from her father-in-law, but in any event, the fact that the compensation she received from the defendant was small would not justify the conclusion that their relations were meretricious.

A careful reading of all the testimony, leads inevitably to the conclusion that the only apparent ground for the charge of adultery against the defendant, is the fact that he and the housekeeper have been living together by themselves in the same apartment, but considering the circumstances under which it came about, we cannot say that they were such as to lead the guarded discretion of a reasonable and just man to the conclusion of guilt, which was the standard laid down in the ease of Hurtzig v. Hurtzig, 44 N. J. Eq. 329; affirmed, 45 N. J. Eq. 869, where the court also held that “the judgment must not be rash and intemperate, moving upon appearances that are equally capable of two interpretations. If the circumstances, taken both singly and together, reasonably admit of two interpretations, that interpretation which favors innocence should be adopted.” The defendant had the right to continue to maintain his home in the flat after the death of his relatives, and it was necessary for him, in order to live there comfortably, to have somebody to keep the house for him. It was natural, under the circumstances, that he should retain the services of the same housekeeper who had been originally employed by his parent. The fact that he was a married man who was separated from his wife by mutual consent, and that the housekeeper was a married woman whose husband was not living with her, seems to us to have but little bearing upon the question before us. She was entitled to earn her living and he was entitled to keep his home.

Wé agree with the vice-chancellor who heard the case in the court below, that there is an abundance of proof of opportunity to commit adultery, but that the case is absolutely barren of proof of any desire or inclination to commit the offence, and the excess of proof of the one element cannot supply the deficiency in the other. They were perhaps defying convention and inviting scandal, but we cannot, from the mere fact of their living alone together in the same apartment, without any proof of illicit desire on the part of either, infer that their relations were criminal, and there is nothing in the proofs that leads us to believe that their relations were meretricious, and we therefore conclude that the decree of the court of chancery must be affirmed.

For affirmance—The Chtee-Justice, Swayze, Teen-chard, Parker, Bergen, Black, Kalisch, Gardner, Ackerson, "Van Buskirk—10.

For reversal—Kalisch, White—2.


author: Per Curiam.

text:
    Joseph M. W. Kitchen, appellant, v. John O. H. Pitney et al., respondents.
    [Decided February 1st, 1923.]
    On appeals from a decree of the court of chancery advised by Vice-Chancellor Fielder, who filed the following opinion:
    “Marcus L. "Ward died May 27th, 1920, leaving a will which was admitted to probate June 2d, 1920, by the surrogate of Essex county. By the twenty-fifth clause he gave, devised and bequeathed all the residue of his estate to his executors and trustees, in trust for the following purpose:
    “ ‘They are to use such rest, residue and remainder of my estate for the purpose of establishing and maintaining, as hereinafter directed, a home for aged and respectable white bachelors and widowers, who may have, through misfortune, lost the means which they once had for their own support, and have become wholly or partially unable to support themselves, * * * and in order that such desire on my pax-t may be in all respects fulfilled, it is my will that my said executors and trastees, with the advice and aid of counsel learned in the law, shall cause and px-oeure a corporation to be foi-med under the then laws of the State of New Jersey, to be called the “Marcus D. Ward Home for Aged and Respectable Bachelors and Widowers,” with all such powers and privileges as may be authorized by the laws of the State of New Jersey. It is my will that my said executors and trustees, or one of them, shall be included in the list of incorporators, organizers or members for such proposed cox-poration, and that the other incorporators, organizers or members shall be selected by my said executors and trustees from men of high character and standing, resident in the State of New Jersey. The main object of such proposed corporation shall be to provide for the proper and suitable maintenance and support of such respectable and aged white bachelors and widowers, not less than sixty years of age, and T)ona fide residents of New Jersey for ten years preceding admission, as may have, through misfortune, lost the means which they once had for their own support and become wholly or partially unable to maintain themselves, and as may be admitted to said home under the charter and by-laws and under the rules and regulations which may be made for the government of said home by said corporation when formed; applicants for admission to said home must satisfy the management of said corporation, that they have been bona fide residents of the State of New Jersey for at least ten years prior to application for admission thereto, and that they are at least sixty years of age; and no bachelor or widower shall have the right to admission to such home, or to remain after admission, except with the sanction and approval of such corporation, in accordance with its charter and by-laws and the rules and regulations prescribed for the government of said home; and the charter or certificate of incorporation of such corporation shall be so drawn as to provide for such object and the limitations aforesaid and to secure so far as possible the realization of my wishes as expressed in this my last will and testament.
    “ ‘It is my will that such corporation shall purchase with a part of such rest, residue and remainder of my estate, lands of sufficient quantity, at such place in the State of New Jersey, as the directors or trustees of said corporation may select, and shall erect thereon proper and suitable building or buildings, and furnish and equip the same, for the comfort of such aged and respectible bachelors and widowers, as may be admitted to the privileges of said home; and if thereafter needed, said corporation may erect from time to time, additional building or buildings, and furnish and equip the same, for the use of said home, using for such purpose such further part of the rest, residue and remainder of my estate, or any accrued income thereon, as the directors or trustees of said corporation may deem expedient. After the purchase of said lands and the erection, furnishing and equipment of the building or buildings to be erected thereon, and subject to the erection, furnishing and equipment of other building or buildings as from time to time needed, the income of the balance of said rest, residue and remainder of my estate is to be used by said corporation for the proper support and maintenance (inclusive of necessary repairs to buildings, and refurnishing) of said “Marcus Jj. Ward Home for Aged and Respectable Bachelors and Widowers.” ’
    “ ‘Upon the formation and incorporation, such corporation to be called the “Marcus L. Ward Home for Aged and Respectable Bachelors and Widowers,” in compliance with the then laws of the State of New Jersey, my said executors and trustees are required and directed to transfer and deliver to such corporation, its successors and assigns forever, by legal and proper conveyances, and other necessary instruments in writing, sufficient in the law for that purpose, all of the rest, residue and remainder of my estate.’
    “This suit is instituted bjr complainant as an heir-at-law and next of kin of the testator, on behalf of himself and all others interested, to have it declared that the trust is illegal and void, and that the executors and trustees under the will hold title to the residuary estate for the benefit of complainant and all other persons who, as heirs-at-law and next of kin of the testator, are entitled to the same.
    “1. The contestants contend that one who is partially able to support himself is not, in a legal sense, an object of charity, and that, because the trust under consideration is for the benefit of bachelors and widowers who are partially, as well as wholly, unable to support themselves, the trust is not exclusively for charitable uses, and it must' therefore fail. If the fund, in the discretion of the trustees under thé will, or of the board of trustees who are to manage the home under its incorporation, can be used for purposes not strictly charitable, or partly for purposes charitable and partly for purposes not strictly charitable, the trust created is invalid. Norris v. Thomson’s Executors, 19 N. J. Eq. 307; affirmed, 20 N. J. Eq. 489; Hyde’s Executors v. Hyde, 64 N. J. Eq. 6; 53 Atl. Rep. 593; Hegeman’s Executors v. Roome, 70 N. J. Eq. 562; 62 Atl. Rep. 392; Van Syckel v. Johnson, 80 N. J. Eq. 117; 70 Atl. Rep. 657; Thomas v. Scheible, 91 N. J. Eq. 451; 111 Atl. Rep. 519.

      “2. It is conceded that a trust in perpetuity intended for the relief of the poor, the sick, the homeless, the aged, or other persons in similar unfortunate circumstances, is valid as for a charitable use. The class of men whom this testator desired to help are bachelors and widowers of advanced age and in unfortunate circumstances in life—that is, those men who having lost their means of support through misfortune, are at the age of sixty years or upwards, partially, if-not wholly, unable to support themselves. It is not necessary to the validity of the trust that the testator’s charitable intent should be confined to those so absolutely destitute that the almshouse is their only public place of refuge. If a man is partially unable to support himself, he must have need of some assistance. Men who are partially unable to support themselves may be objects of charity, as well as those who are'wholly destitute and entirely dependent upon others, the difference between them being but of degree, as is the difference between the poor and the very poor; the sick and the hopelessly incurable; the weak-minded and the insane. In Goodell v. Union Ass’n, 29 N. J. Eq. 32, the trust was to alleviate the wants and suffering of the deserving poor of the town of Mount Holly; in Hesketh v. Murphy, 36 N. J. Eq. 304, it was for the benefit of the most deserving poor of the city of Paterson, and in Hilliard v. Parker, 76 N. J. Eq. 447; 74 Atl. Rep. 477, it was for the purchase of fuel for tho most needy women of the borough of Woodstown. The trusts in these cases were upheld, and the cases recognize that there are degrees of poverty and individual necessity. Suppose that this testator had created his trust specifically for the benefit of poor bachelors and widowers, would it not be necessary for those charged with the supervision of admission to the home to ascertain Avhether each applicant is actually poor—that is, so poor as to be unable to support himself—and, should it be found in any case that an applicant is possessed of some means of support, should the applicant for that reason be rejected, or Avould it not have to' be determined, whether such means of support are so insufficient as to render him dependent, and therefore entitled to the aid of the home ? So, in this case, I apprehend that it is the duty of the trastees under the will, or of the trustees of the home, to determine whether the partial means of support AArhieh any applicant may have is sufficient for his needs, or so insufficient as to make him an object of charity. This testator has provided for admission to a home he proposed to establish of a class of men possessing qualifications which he described, and he said that they are therein to be provided with ‘proper and suitable maintenance and support/ which means such support and maintenance as may reasonably be considered as suitable and sufficient for men who are unable to fully support themselves, and so far as the fund Avhich he made available for the purpose will permit. I am unable to see that bjr anything the testator said in his will he gave to his trustee, or to the board of trustees of the home, discretion to admit to the home bachelors and widowers who are able to support themselves, and to house and maintain such persons in the home in luxury and idleness.
    “3. The contestants also contend that the will is too vague, uncertain and indefinite as to the class of persons intended to be benefited. The testator said that to obtain admission to the home an applicant must be a respectable white bachelor or widower, at least sixty years of age and a resident of this state at least ten years prior to admission, who, through misfortune, has lost the means he once had for his support, and has become wholly or partially unable to support or maintain himself. If from this description of the men who he desired should be the object of his bounty his intent can be ascertained so that his trustees may employ the trust according to such intent with reasonable certainty, it is sufficient. The general principle is that courts of equity uphold gifts to a charitable purpose if there is a trustee with power to designate the particular persons to be benefited thereby. DeCamp v. Dobbins, 29 N. J. Eq. 36; affirmed, 31 N. J. Eq. 671; Hesketh v. Murphy, supra; Hyde’s Executors v. Hyde, supra; King v. Rockwell (N. J. Ch.), 93 N. J. Eq. 46.

    “4. In support of their argument that the class to be benefited is indefinite, the contestants point to the provision that an applicant for admission to the home must have lost by misfortune the means he once had for support, and they contend that there is no guide by which the trustees under the will, or the board of trustees of the home, can determine what the testator meant by the words ‘misfortune’ and ‘means.’ It is argued that the word ‘misfortune’ may have as broad a meaning as the word .‘mischance,’ and could therefore be said to include any event or occurrence which might deprive one of his property or effects, and so include a loss through gambling, card playing, betting on horses, idleness, shiftlessness, neglect of businsess or drunkenness. It might be said that men who are ‘down and out’ as a result of bad habits or their own carlessness or neglect are, nevertheless, objects of charity; but the testator did not provide for admission to thé home of those who had lost their means of support through any event; he placed a limitation thereon, and described it as a ‘misfortune/ and he said that applicants must be ‘respectable/ both of which words as used by the testator would exclude the dissolute, the idle and the shiftless. I can see no room for doubt in ascertaining the meaning of the word ‘means,’ because I can find nothing in the will from which it can be inferred that this word should be limited in its interpretation to include only financial faculties, such as money or capital. It is broad enough to include also physical means of support, such as health, mind or other physical faculty; and it seems to me that the word ‘means’ was used for the purpose of showing the testator’s intent to exclude all persons possessed of ability, either financial or physical, of supporting or maintaining themselves.
    “5. The contestants further urge that the trust is too narrow, in that it is confined by its limitations to but a small number of men. It is difficult to approximate the number of men who might qualify for admission to the home; but, among Hew Jersey’s population of over three million, I would say that many men could meet the requirements of the will. That this contention is without foundation is shown by the decisions in Goodwell v. Union Ass'n, supra,; Hesketh v. Murphy, supra; Trustees v. Wilkinson, 36 N. J. Eq. 141; affirmed, 38 N. J. Eq. 514; and Hilliard v. Parker, supra, where the benefits of the respective trusts were limited to a comparatively few persons, but were, neverthless, held good.
    “6. The next objection made by the contestants is that, because the executors and trustees are directed to incorporate a home and place its conduct and control in a board of trustees who shall have power to' make rules and regulations for the admission and government of inmates, the board of trustees may exclude the real poor, needy and deserving, and admit only those having qualifications of education, religion, social standing, and limited money income or principal, and, in case such regulations should be adopted, the trust would not be administered for charitable purposes; that, having obtained admission to the home, no inmate can remain except with the sanction and approval of the board of trustees, but may be removed therefrom under such rules and regulations as the board of trustees may choose to adopt. I can see no merit in this objection. The testator is explicit in defining the qualifications for admission to the home, and he said nothing with reference to qualifications of education, religion or social standing. The will provides that the charter or certificate of incorporation, of the corporation which is to receive the trust fund shall conform to the object expressed in the will, and shall secure, so far as possible, the realization of the testator’s wishes; hence the organization of-the home and its management must conform to the will and the certificate of incorporation. The corporation has actually been formed and is prepared to accept and administer, the trust, and no criticism has been made by the contestants of the objects of incorporation as set out in the charter. Such rules and regulations as may be adopted by the board of trustees for the government of the home must be consistent and in harmony with the purposes set out in the will and the certificate of incorporation, and it cannot be assumed that the board of trustees, by the adoption of rules and regulations, or in the conduct of the home, will do otherwise than carry out the intention of the testator as expressed in his will.
    “7. The final objection raised by contestants is that the trust is against public policy because it provides for a fund exceeding $4,000,000 to be held in perpetuity, the benefits of which can be enjoyed by a limited number of men only, who, if now partially able to suppoif themselves, do not need the assistance of the fund, and, if wholly unable to support themselves, may be supported by members of their own families, or by institutions, public or private, already established to meet their eases. No legal authority in support of this objection is cited, and I do not find it well taken. The fund in question is large, but a part of it must be used for the purchase of land and the erection of buildings, and a considerable sum must be reserved for investment to provide the income necessary for maintenance. The applicants for the benefits.from the fund may be numerous, and the establishment of the home should, in the course of time, ameliorate and relieve the needs of and provide comforts in their declining years for hundreds of deserving residents of this state. The establishment of such a home is in the interest of the public, and a charity such as the testator evidently intended this to. be is favored by our courts. DeCamp v. Dobbins, supra; Hesketh v. Murphy, supra; Johnson v. Bowen, 85 N. J. Eq. 76; 95 Atl. Rep. 370.

      Messrs. Howe ,<£ Davis, for the appellant.
    Messrs. McCwrter & English, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Pi elder.

For affirmance—-Ti-ie Chiee-Justice, Swayze, Trenci-iard, Parker, Bergen, Minturn, Black, ELatzenbacii, White, PIbppenheimer, Williams, Gardner, Ackerson, Van Buskirk—14.

For reversal—-None.


text:
    Joseph M. W. Kitchen, complainant, v. John O. H. Pitney et al., defendants.
    [Decided February 1st, 1923.]
    On appeal of Apphia Longworth Locke Kerfoot et al.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Eielder, whose opinion is reported in 94 N. J. Eq. 485.

      Messrs Lwn, Tamllyn & Colyer, for the complainant.

      Messrs. Ilowe ,<& Davis, Messrs. Pitney, Hardin & Skinner and Messrs. McCarter & English for the defendants.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Eielder.

For affirmance ■—• The Ci-iiee-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Black, Katzenbach, White, Heppenheimer, Williams, Gardner, Ackerson, Van Buskirk—14:

For reversal—None.


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    Joseph M. W. Kitchen, complainant, v. John O. H. Pitney et al., defendants.
    [Decided February 1st, 1923.]
    On appeal of Harriet Crigler Wright et al.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Fielder, whose opinion is reported in 94 N. J. Eq. 485.

      Messrs. McCarter ,& English, for the complainant.

      Messrs. Howe <£• Davis, Messrs Lum, Tmiblyn .& Colyer and Messrs. Pitney, Hardin & Skinner, for the defendants.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Fielder.

For affirmance — The Ci-iiee-Justice, Swayze, Trenci-iard, Parker, Bergen, Minturn, Black, Katzenbaci-i, White, PIeppenheimer, Williams, Gardner, Ackerson, Van Buskirk—14. • . ■

For reversal—None.


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    Joseph M. W. Kitchen, complainant, v. John O. H. Pitney et al., defendants.
    [Decided February 1st, 1923.]
    On appeal of Harry Longworth. Morris et al.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Fielder, whose opinion is reported in 94 N. J. Eq. 485.

      Mr. SacTcett M. Dickinson, for the comnlainant.

      Messrs,. Howe & Davis, Messrs. Pitney, Hadin & Skinner, Messrs. Lum, Tanvblyn & Colyer and Messrs. McCarter & English, for the defendants.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Fielder.

For affirmance — The Chief-Justice, Swayze, Teenci-iard, Parker, Bergen, Mintuen, Black, Katzenbaoh, White, Heppenheimer, Williams, Gardner, Ackerson, Van Buskirk—14.

For reversal—None.


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    Camden, Atlantic and Ventnor Land Company, respondent, v. Joel Mason et al., appellants.
    [Decided March 5th, 1923.]
    On appeal from a decree of the court of chancery.

      Messrs. Bourgeois ,é Coulomb, for the appellants.

      Mr. Ulysses G. Styron, for the respondent.
   Per Curiam.

The above case appears upon our list of causes for the Movember term as an appeal from chancery. On the call of the list at the opening of the term it was announced that, by agreement, the case would be submitted on briefs. In accordance with -this agreement we have received what purports to be the state of the case and a brief from counsel of the appellants. From an examination of that brief it would seem as if the alleged appeal was taken from a decree of the chancellor; but we find in the state of the case no signed decree, nor any notice of appeal or petition of appeal. Consequently there is nothing before us for our consideration or determination.

The appeal, therefore (assuming that an appeal was taken), will be dismissed, with costs to the respondent.


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    Hamilton S. Battin, complainant-respondent, v. Jennie Mae Battin and Lambert Earle Battin, defendants-appellants.
    [Argued November 24th, 1922.
    Decided March 5th, 1923.]
    On appeal from the court of chancery advised by Vice-Chancellor Griffin, who> filed the following opinion:
    “The complainant in this cause filed his bill for partition. An interlocutory decree was taken against all of the defendants and there was the usual reference to a special master to report-. The master reported the various interests of the parties, and That the provisions of the last will and testament of Lambert B. Battin, deceased, giving to the said Jennie Mae Battin the use of said premises for her lifetime and the supervision thereof are valid and in full force and are binding on all parties to this suit.5 The will is quite ambiguous, and various parts are contradictory and repugnant. In the case of Den v. Gifford, 9 N. J. Law 46 (at p. 50), Chief-Justice Ewing, in discussing a will, said: ‘It is not unworthy of remark that, filled as our books are with reports on wills, no ease has been found presenting a similar devise and showing its just construction. The fact furnishes another illustration of the never-ending variety of litigation with which the wit and wisdom or the ignorance and folly of mankind are likely to supply the tribunals of justice.5 The same remarks might aptly be applied to the will in this case.
    “I have gone over the will a number of times and examined it in its entirety from almost every possible angle and viewpoint. The testator made'his will on the 19th of September, 190G, at which time he had the property described in the bill and known as ‘The Anchorage/ a residence at Elizabeth, and other property. By a codicil dated the 31st of August, 1916, he gave to his widow, Jennie Mae Battin, substantially all of the property of which he died seized excepting ‘The Anchorage.5 In the third paragraph of his will he gives, devises and bequeaths to his wife, in lieu of dower, an equal share with all of his children in all of the real and personal estate of which he may die seized. He then makes provision for the maintenance of the home out of the income derived from a trust estate left by his father, as well as from that which he owned independently. He then provides that, in case his widow and children do not live harmoniously together, a majority of his executors shall decide the management of his home and personal property. He then adds the following clause at the foot thereof: ‘My widow and any unmarried child shall have a home at “The Anchorage/5 Fair-haven, New Jersey.5
    “He had no power to provide for the use of the income of the trust estate, because, on his death, that passed to the children, andi the only property which he had at the time of the making of his will was ‘The Anchorage5 and the property which he afterwards devised and bequeathed to his widow by the codicil, and perhaps some other property which he disposed of between the making of his will and his death. Therefore, when he died there was no property devised or bequeathed the income of which might be used for the maintenance of the home.
    “By the fourth paragraph he makes some specific bequests to certain of his children.
    “By the fifth paragraph he devises and bequeaths all the rest, residue and remainder of his property, real and personal, to his wife and six children, in fee, share and share alike.
    “Plainly, by the third and fifth paragraphs, a fee-simple was devised in ‘The Anchorage5 to the wife and six children. (I may add that all of the children, excepting Lambert, are children by a former wife.) At the end of the sixth paragraph, after saying that the whole income shall be devoted, as at present, to the maintenance of his home at ‘The Anchorage’ at Fairhaven, New Jersey, he says: ‘It is my will that no real estate shall be sold or mortgaged without the consent in writing of each of my executors and executrices,’ and he appoints his wife and six children executors.
    “The first question I will consider is the latter clause, which requires the consent in writing of the executors to a sale. By the terms of the will a fee is granted Jo the wife and six children as tenants in common. In the third and fifth paragraphs of the will, this latter clause requiring consent I consider void as being repugnant to and derogating from the devise. Kreuger v. Frederick, 88 N. J. Eq. 259; Potter v. Couch, 141 U. S. 297 (at p. 315); 11 Sup. Ct. Rep. 1005 (at p. 1010 col. 2; p. 1011 col. 1).

    “The next question to be considered is whether the will, particularly the language at the foot of the third clause, ‘Mv widow and unmarried child shall have a home at “The Anchorage,” Fairhaven, New Jersey,’ prevents a partition? It is plain that this language is permissive and personal—• permissive in the sense that she need not make her home there if she does not so desire; and second, that it is personal to her and her unmarried child, to whom only the personal rrse may be had without authority to rent the property. Endicott v. Endicott, 41 N. J. Eq. 93, 99. If she has abandoned the place as a home the bill for partition is maintainable. I11 her testimony Mrs. Battin says, ‘I now live— board—at 139 Monmouth Street, Red Bank, N. J., and have lived there two years.’ She lived occasionally at ‘The Anchorage’—lived there five months after her husband died, ánd has lived in Red Bank ever since. She lived at ‘The Anchorage’ five weeks this fall (1920). She contends in her testimony that she has a life estate in ‘The Anchorage.’ The building is erected on an acre and a half and contains fifteen rooms, a hall, a large attic and a bath, with a sixty-foot stable, a poultry-house and two small outbuildings. She collected $450 for rental on ‘The Anchorage.’
    “It is perfectly plain that she has not a life estate; she merely has an option of user. During the period from her husband’s death in 1918 she lived in the house for about five months after her husband’s death, and for two years thereafter she did not make her home there, and even since this suit was started she has but occasionally lived there for periods, tire longest period being six or seven weeks. It is quite apparent from her story that her husband was a man of some means, having a city residence and ‘The Anchorage’ as a country residence, and that it would be impossible for Mrs. Battin to maintain this large establishment as a home. Her theory is that she has a life estate and may rent the same. This, as above indicated, is incorrect. I am satisfied from the evidence that ‘The Anchorage’ is not her bona fide home, that she has not been using it as such, and that her home is at Red Bank.
    “She also appears to claim that no distribution may be made during her lifetime, under the sixth paragraph of the will. This distribution has reference only to the property outside of ‘The Anchorage,’ because it says ‘the whole income’ (which can only mean the income outside of ‘The Anchorage’) is to be devoted, as at present, to the maintenance of my home known as ‘The Anchorage.’
    “As a result of the foregoing views, the exceptions will be sustained, but no part of the report will be stricken out, because it is part of the record.
    “As to the-seventh exception, which holds that Jennie Mae Battin is entitled to receive from Hamilton S. Battin the fair rental value of the premises occupied by him from the date of the death of his father, this exception will be sustained; but the question arises as to whether Hamilton should not pay to the estate the fair rental value. Of course, there was no ouster, as far as I can see, and, as I recall the law, one tenant in common may occupy a portion of the premises without paying rent, unless he excludes the other tenants from the use thereof. I reach this conclusion the more readily in view of the fact that it appears that the premises are running down, and are likely, unless properly occupied and maintained, to' go into decay.
    “A decree will be advised in accordance with the foregoing views.”

      Mrs. Mary Wooster Sutton, for the appellants.

      Mr. Charles F. Hendrickson, for the respondent.
   Per Curiam.

We have examined the record in this case, with the result that we have reached the same conclusion as the learned vice-chancellor, who advised the decree in which the respective rights and interest of the parties in the premises are ascertained and adjudged. Also, the bill filed for a partition and a decree of sale of the premises should be sustained.

The decree of the court of chancery is therefore affirmed.

For affirmance—-The Ci-iiee-Justice, Swayze, Tkenchard, Parker, Bergen, Black, Katzenbach, White, Gardner, Ackerson, Van Buskirk—11.

For reversal—None.


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    In the matter of the application of John Ganey for an allowance from the estate of Catherine A. Donahue, a lunatic.
    [Decided February 1st, 1923.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Fielder, whose opinion is reported in 93 N. J. Eq. 389.

      Mr. Milton M. Unger, for the petitioner-appellant.

      Mr. Charlton A. Reed, for the guardian-respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Fielder.

For affirmance — Ti-ie Chief-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Ivalisci-i, Black, Katzenbach, White, Heppeni-ieimer, Williams, Gardner, Ackerson, Van Buskirk—15.

For reversal—Hone.


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    Blanche Ludwig, appellant, v. Arthur Ludwig, Adam J. Ludwig and Bridget S. Ludwig, respondents.
    [Decided January 19th, 1923.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Buchanan, who filed the following memorandum on the issue of divorce prayed for by each of the parties to this suit as against the other:
    “Petition by the wife and counter-claim by the husband both on the ground of desertion.
    “'The proofs do not substantiate either party’s claim as to willfulness and obstinacy, and both petition and counterclaim will he denied as to the divorce.
    “The matter of the custody of the child will be continued for further testimony.”
    After the taking of further testimony the vice-chancellor delivered the following oral conclusions on the issue of the custody of the child:
    “I am satisfied by the testimony and the evidence in the entire case that the custody of the child, which the wife had for a time in Rochester, was, as a practical matter, abandoned by her in 1916, when she sent it to the grandparents, and abandoned it, not to the father of the child, but to the grandfather. And the custody so remained even after the wife came back to New Brunswick and lived with her husband again. The child was not with them. Custody was resumed by both parents when they went to Rochester in 1918. It was abandoned by the husband when he left on August 2d, 1918. After that he made no effort to get the child, or to see it; he never wrote to it or contributed' to its support, or evince any interest in it whatsoever. Although the wife retained custody, it was little more' than in name. She made no effort to keep the child with herself, but boarded it out and left its care and education to Mrs. Lauer, going to see it only a few times a week. I cannot feel "that she has any great love or care for the child, and I think that in her keeping of it in Eochester, and her present contest, she was and is actuated principally by antagonism to her husband and her husband’s people.
    “I am satisfied from the evidence that the child’s welfare will best be conserved (and that is the thing after all, which is the motive and guiding principle which actuates this .court in such cases), that the child’s welfare will best be conserved by having -his custody given to the grandfather, for the present at least; and I say I see no obstacle in the way of that, by reason of the conduct of the father and mother heretofore. The father, as 1 have said, abandoned the custody 'in 1918, and there is a statutory bar to any custody by the mother, under the circumstances of this case. Section 7 of the act of 1902 (P. L. p. 263) provides that where a child is a native of this state, as this child is, it shall not be removed from the state ‘against its own consent if of suitable age to signify -the same, nor while ■under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order.’
    “There may be some doubt as to the child being of ‘suitable age.’ He is about nine years old, and seems quite intelligent, although, possibly a little young for his years. If he be deemed of suitable age, his desire, as stated to me, was to remain here in New Jersey at the grandfather’s, where the father also is at present residing. If he be not deemed of suitable age, the consent of the father is lacking to have him removed from the state. There is not the slightest -doubt in my mind that the wife’s residence is in Eochester, and her frankly-expressed intention, in her testimony, was to take the child back to Mrs. Lauer’s in Eochester. Certainly no cause has been shown, to my mind, to induce or justify the court to ‘otherwise order’—quite the contrary.

      “The order, therefore, will be that the custody be given to the grandfather, who has been made a party to the suit—the legal custody—and there being no evidence before me that any change in the situation as to the residence of the father or mother has occurred since the taking of the testimony upon the last hearing, the decree will provide that both the father and mother shall have the right of access to the child at all reasonable times, for visitation.
    “There will also be a provision that the father shall contribute to the support of this child. I think I will make the amount $7.50 per week that he shall pay to his father towards the expense of the support of the child.”

      Mr. Theodore Strong, for the appellant.

      Messrs. Bussell E. & A. Dudley Watson, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the conclusions in the court below by Vice-Chancellor Buchanan.

For affirmance — The Chief-Justice, Swayze, Trenoi-iard, Parker, Bergen, Minturn, Ealisoh, Black, Eatzenbach, White, Heppenheimer, Williams, Gardner, Ackerson—14.

For reversal—None.