author: Clark, J.

text:
    Frank Lulevitch and Anna J. Lulevitch, complainants-appellees, v. Horace Roberts, defendant-appellant.
    [Decided May 18th, 1925.]
    1. A preliminary injunction will not be issued where the right of the complainant depends upon an unsettled question of law. Citizens Coach Co. v. Camden Horse Railway Co., 29 N. J. Eq. 299, followed.
    2. Accordingly, the writ will not be issued to restrain an upper proprietor from interfering with the natural flow of surface water across his land and onto that of his neighbor by gathering the same into an indefinite number of drain pipes.
    On appeal from an order of the court of chancery.

      Mr. Albert S. Woodruff and Mr. Carl Kisselman, for the complainants.

      Mr. George B. Brans, for the appellant.
   The opinion of the court was delivered by

Clark, J.

This is an appeal from ail order of the court of chancery, granting a preliminary injunction. Complainants, a husband and wife, own a twentv-six-acre farm in Delaware township, Camden county. It is bounded on two sides b)1- embankments, one of which was constructed for the laying out of Chapel avenue, and the other is an embankment of the Pennsylvania Railroad Company. The slope of the ground, consequently the natural drainage of the surface water, on this farm is from east to west. In November, 1922, complainants sold to the defendant a triangular tract constituting the easterly and higher portion of the farm. The latter commenced the improvement of his parcel by the erection of dwelling-houses thereon. For more convenient access to these houses a road was built along the three-hundred-yard boundary between the land sold to the defendant and that remaining in the ownership of the complainants. The fill necessary to the construction of this road acted as a dam, and impounded such surface water as the topography of the ground would otherwise have caused to flow onto complainants’ farm. To release this water, and so prevent a washout of the road, the defendant inserted two terra-cotta drain pipes in the fill. The measurements of these pipes do not appear from the record.

It is complainants’ contention that-before the erection of the fill and the installation of the drain pipes, the rain water flowing from one parcel to the other disappeared through natural seepage. At the present time, however, the increased flow of water is flooding their land and making it unfit for cultivation or pasturage. In this situation the court below enjoined defendant from rising the aforesaid drain pipes or in any other way causing the surface water to be drained upon the ground of the complainants, "except as it used theretofore or anciently to flow.”

This, we think, to have been error. The general rules of law governing the ordering of a preliminary injunction are too long and too well settled to require any restatement or elaboration at this time. They are reiterated, and the opinion of Chief-Justice Beasle}r, speaking for this court in Citizens Coach Co. v. Camden Horse Railway Co., 29 N. J. Eq. 299, again approved in a deliverance of this court at the last term. 3 N. J. Adv. R. 475. In our view, the complainants in the ease at bar should fail because their right seems to depend upon an unsettled question of law. In this respect, then, they are lacking, we think, the second of the three prerequisites to a preliminary injunction called for by the rule in the case of Citizens Coach Co. v. Camden Horse Railway Co., supra.

The proofs clo not indicate that any district other than the defendant’s tract has been drained. The averment, with regard to used water from the houses, is so couched as to have reference entirely to future probabilities. There has been, then, no increase in the whole volume of water flowing upon complainant’s land. Nor is there any showing that there has been a change in the direction of the surface water. Further, the defendant, in his answer, states his willingness to add to the two original drain pipes by installing a “greater number.”

It is true,, of course, that the use of any artificial channels, such as the drains, in the case at bar, prevents the natural spread of the surface water and disturbs the uniformity of its flow. To the extent, then, that it is so gathered, its velocity and volume at any particular place is increased. Equally, such acceleration and unusual quantity may be too great to permit the absorbent qualities of the soil to dispose of the water by seepage at such place. We have seen that the defendant has offered to indefinitely increase the number of drain pipes. It seems clear, therefore, that the affirmance of the order involves ex necessitate a holding that any concentration of the natural flow of surface waters in artificial channels — -if accompanied by the necessary irreparable injury — presents a case for injunctive relief. There seems to be some color in our cases for such a ruling. We are not, however, prepared to make it upon a bill for a preliminary injunction.

The law of surface waters is largely arbitrary and free from decisive principles. 27 R. C. L. § 68 et seq. Three distinct doctrines in respect to the problem presented by the case at bar seem to obtain and to have found support in the decided cases. That adopted from the Roman and civil law creates a servitude between adjoining proprietors, by which the lower proprietor is bound to receive the waters which naturally flow from the estate above, and, in turn, the upper proprietor must not prevent such waters from reaching his neighbor below in the usual manner. Pardessus Traite des Servitudes 86, pp. 119, 120; Pinkstaff v. Steffy, 216 Ill. 406; 75 N. E. Rep. 163; Rhoades v. Davidheiser, 133 Pa. St. 226; 19 Atl. Rep. 400. The language of the order in the case at bar resembles strikingly the words of Dornmat, a French writer on the civil law, wherein he observes that “when surface waters by the nature of the place have course from one ground to another, the proprietors of the said grounds cannot innovate anything as to the ancient course of the waters.” 1 Dommat 616. It does not seem to us quite appropriate in the order of a New Jersey court, because we have given our adherence to the contrary doctrine of the common law, which regards surface water as a common enemy which each may keep off his land as best he can, assimilating the law of surface waters with the law of percolating waters, rather than that of water courses. Town of Union v. Durkes, 38 N. J. Law 21; Jessup v. Bamford Bros., 66 N. J. Law 641. The cases expressing this theory are extensively reviewed in the United States supreme court case of Walker v. New Mexico and Southern Pacific Railroad, 165 U. S. 593. This rule seems to have appeared, first, in this country in Massachusetts (Gannon v. Hargadon, 10 All. 106), and in the form in which it has been expanded by our courts, has, perhaps, gone somewhat beyond the original English doctrine. Taylor v. Fickas, 64 Ind. 167; Adams v. Walker, 34 Conn. 466. There is some basis for believing that the expression “common enemy,” in its original use by Lord Tenterden, referred to the sea and not to surface waters. Farnh. Waters 2591. The third view as to the flowage of surface waters, namely, that of reasonable use, does not concern us here. See Am. L. June, 1922.

The cases above cited indicate clearly that this court has given its sanction to Chief-Justice Beasley’s original declaration of the “common enemy” doctrine (Jessup v. Bamford Bros., supra), at any rate so far as it applies to the turning back of water by the lower proprietor (Bowlsby v. Speer, 31 N. J. Law 351), or to this diversion, resulting in personal injury. Lightcap v. Lehigh Valley Railroad Co., 90 N. J. Law 620. On the other hand, we have condemned the drainage by artificial means of a large district, which results in the casting of collected waters upon the lands of another. West Orange v. Field, 37 N. J. Eq. 600. The law of surface waters in the phases which we have discussed does not, therefore, seem to be established in this state. As we have said, the application for a preliminary injunction is not the time at which thejr should be settled. Dodge v. Pennsylvania Railroad, 45 N. J. Eq. 366.

The order of the court of chancery granting a preliminary injunction is reversed.

For affirmance — Kalisch, Katzenbach, Van Buskirk, Kays, JJ. 4.

For reversal — The Chief-Justice, Trenchard, Parker, Mtnturn, Black, Campbell, Lloyd, White, Gardner, Clark, McGlennon, JJ. 11.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Anthony Maturi, Rudolph Corrado and Joseph Machetto, complainants-appellants, v. Catherine M. Fay, Anna E. Fay, James P. Fay and William J. Fay, defendants-respondents.
    [Decided May 18th, 1925.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis, upon rehearing, who filed the following opinion:
    “It appears, from the agreed stipulation of facts submitted and the record in Maturi v. Fay, that the complainants first instituted a suit in the Hudson county circuit court for the. return of the deposit money paid on account of the contract, together with fees for searches and disbursements under the statute. Later, this suit was discontinued, and the present bill for specific performance was filed.
    “If this is a correct assumption of the facts, it is clear that it comes specifically within the situation involved in Claron v. Thommessen, 96 N. J. Eq. 650, and would be governed by the opinion of the court of errors and appeals in that case. The facts in that case on this point are identical with the facts in the present case, if my understanding of those facts is correct as above outlined.
    “Judge Lloyd says, in the case of Claron v. Thommessen, that fwhen on March 7th, 1922, following the long lapse of time in which he made no effort to complete the purchase, he, Thommessen, instituted suit against Ciaron to recover the deposit money of $1,000, he irrevocably committed himself in solemn form to a repudiation of an obligation under the agreement. Having taken this step1 in rescission of the contract he will not now be permitted to seek its enforcement in a court of conscience.’
    “At the time I prepared my memorandum in Maturi v. Fay, 96 N. J. Eq. 472 (September 20th, 1924), my attention had not been called to any decision in this state dispositive of the question of binding election of remedies in this respect, and inasmuch as the decisions in other jurisdictions were in conflict, I inclined to the view that the institution of the suit to recover the deposit money and for damages, instituted in the Hudson county circuit court, which was afterwards abandoned, did not bind the complainants to a repudiation of the contract, nothing being shown in the facts submitted making it unjust to the opposite party.
    “The opinion of the court of errors and appeals in the case of Claron v. Thommessen (supra), however, decided since my memorandum was filed, fixes the rule in this respect, as above indicated; and I, of course, am bound by it in the present case.

      “In view of the fact that the decree has not yet been advised, and this situation appears clearly upon the rehearing, I feel bound to depart from my conclusion formerly expressed in my previous memorandum, and to now advise a decree denying specific performance of the contract and dismissing the bill.”

      Mr. Atwood G. Wolf, for the complainants-appellants.

      Mr. L. Edward Herrmann, for the defendants-respondents.
   Per Curiam.

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

For affirmance — The Chiee-Justice, Trenoi-iard, Parker, Black, Katzbnbaoh, Campbell, Lloyd, White, Gardner, Van Buskirk, Clark, McGlennon, Kays, JJ. 13.

For reversal — -None.


text:
    Philip C. Marchese, appellant, v. Rose Marchese and Harry H. Weinberger, respondents.
    [Decided May 18th, 1925.]
    On appeal from a decree in chancery advised by Vice-Chancellor Bentley.

      Mr. Wilbur A. Heisley, for the appellant.

      Mr. Merrill Lane,lor the respondent Weinberger.
   Per Curiam.

This is an appeal from a decree dismissing a petition for divorce hied by Philip C. Márchese against his wife, Rose, and based upon a charge of adultery alleged to have been committed by her with one Harry Weinberger. No answer was filed by Mrs. Márchese to this petition, but Weinberger, the alleged co-respondent, having applied to the court to be admitted as a party defendant, and the application having been granted, answered the petition, denying that he had ever been guilty of sexual relations with the petitioner’s wife. After a hearing covering several days, and a consideration of the testimony submitted on behalf of the petitioner and that submitted on behalf of Weinberger, Yice-Chancellor Bentley, to whom the cause had been referred, reached the conclusion that the petitioner had failed to support his case by a preponderance of the evidence, and, for this reason, advised a decree dismissing the petition. From the decree entered pursuant to this advice the petitioner has appealed.

In the case of Berckmans v. Berckmans, 17 N. J. Eq. 453, Mr. Justice Yan Dyke, delivering the opinion of this court in a divorce case charging adultery against his wife, after pointing out that the charge constituted a crime, and that, consequently, the suit was strongly of the nature of a criminal proceeding, declared that, by reason of this fact, the burden was placed upon the petitioner of supporting his charge, not only by a decided preponderance of the testimony, but by such evidence as would satisfy the human mind and leave the careful and guarded judgment of the court free from any conscientious and perplexing doubts as to whether the charge was proven or not, and that, if such doubts remain after a careful consideration of the testimony, it is the duty of the court to give the defendant the benefit thereof and to refuse the prayer of the petitioner. In the case of Culver v. Culver, 38 N. J. Eq. 163, Yice-Chancellor Yan Fleet, in following this pronouncement, declared that the proven facts, which would constitute sufficient evidence to support a finding of adultery, must be such as would lead the guarded discretion of a reasonable and just mind to the conviction that the crime had been committed.

This rule of evidence has been accepted and followed in repeated decisions of our court. See Luderitz v. Luderitz, 88 N. J. Eq. 103, 105.

A careful consideration of the voluminous proofs sent up with the present appeal does not leave our minds free from “conscientious and perplexing doubts” as to whether the charge laid in the petition is true, and, as such doubts remain after such consideration, we conclude that the decree dismissing the petitioner’s petition should be affirmed.

For affirmance — The Chief-Jus tice, Trenchahd, Kalisci-i, Katzenbaoh, Campbell, Van Buskirk, Clark, McGlennon, Kays, JJ. 9.

For reversal — Parker, Black, Lloyd, White, JJ. 4.


author: Pbe Oueiam.

text:
    Arthur R. Loveridge, appellant, v. Alfred S. Brown et al., executors, &c., respondents.
    [Decided May 18th, 1925.]
    On appeal from the prerogative court.

      Mr. Nathaniel Kent, for the appellant.

      Mr. Edward 8. Ahuater, Jr., for the respondents.
   Pbe Oueiam.

On the 5th day of September, 1922, Elizabeth Lees, then a resident of the county of Essex, departed this life, leaving a last will and testament, the validity of which was challenged by her nephew, Arthur E. Loveridge, the present appellant. The matter having been brought on for hearing before the orphans court of that county, it was there held, after a consideration of the proofs, that the will was valid, and a decree was entered admitting it to probate.

The contestant, Loveridge, then appealed to the prerogative court for a review of this decree, and that court, after hearing the arguments of the counsel of the respective parties and considering the proofs submitted in the cause, affirmed the decree of the orphans court upon the grounds set out in the opinion -of that court, delivered by Judge Flannagan. Thereupon the present appeal was taken to review the decree of affirmance entered in the latter court.

Our examination of the case satisfies us of the soundness of the conclusion reached both by the orphans court and the prerogative court, and we affirm the decree under review on the opinion of Judge Flannagan, which is as follows:

“This is an appeal from an order of the surrogate of Essex county, made on the 28th day of September, 1922, admitting to probate a certain paper-writing made on the 16th day of March, 1921, as the last will and testament of Elizabeth L. Lees, who died a resident of Essex county, on September 5th, 1922, leaving her surviving as her nearest kin, a sister, Harriet Loveridge, and numerous nephews and nieces.
“In 1910 Mrs. Lees ivas residing with her husband at the Hotel Beresford, in Hew York City. Her husband was ill, and one Miranda Hough was engaged as his nurse, and continued in that capacity until April, 1912, when Mr. Lees died. Miss Hough remained with Mrs. Lees until some time in the fall, and then took other work, and was away for about a year and a half.
“Early in 1914, at the request of Mrs. Lees, Miss Hough returned to live with her, and continued to live with her until her death. Miss Hough owned a cottage in East Orange, and during the years 1911, 1918 and 1919 Mrs. Lees and herself occupied that house as a summer residence. Early in 1920, Mrs. Lees, becoming dissatisfied with her residence at the Hotel Beresford, arranged with Miss Hough to break up their home there and to occupy the latter’s cottage in East Orange. Shortly thereafter they decided to build, as a joint enterprise, a home more suited to Mrs. Lees’ financial circumstances. Miss Hough thereupon purchased a lot at 19 Whitman avenue to which she took title in her name, whereupon the dwelling, which they called Rainbow Cottage, was built. Into this property Miss Hough put a total amount of $12,000 and Mrs. Lees $18,000. They continued to live at this residence until Mrs. Lees’ death.
“At the time when Miss Hough went to live with Mrs. Lees, in 1914, at Hew York, the arrangements between them were that she was to receive $18 per week, which was later increased to $125 per month, and so continued until 1920. Miss Hough did all the household work, with 'the exception of engaging an assistant occasionally, and attended to Mrs. Lees, did her dressmaking, acted as her nurse, performed in course of her duties as such a somewhat unpleasant duty made necessary by Mrs. Lees’ ailments, and, in general, acted as her companion, nurse and housekeeper.
“On July 2d, 1920, Mrs. Harvie, one of Mrs. Lees’ nieces, went to Dr. Swift, a Hew York physician, who had been attending Mrs. Lees while she resided in Hew York, and obtained from him a certificate stating that he had formed the opinion that Mrs. Lees was suffering from senile changes, which had affected her mentality and rendered her incapable of sound judgment or discretion. In the latter part of 1920, Mrs. Lees learned of the existence of this certificate, or, rather, that somebody had suggested the appointment of a guardian for her, and was very much concerned about it. She went to her counsel, Mr. Alfred S. Brown, to ascertain if Miss Hough could be appointed. Upon learning that she could not appoint a guardian for herself, Mrs. Lees suggested that she adopt Miss Hough, and Mr. Brown informed her that for this she must go to a New Jersey lawyer.
“Later, Mrs. Lees, accompanied by Miss Hough, called upon Thomas A. Davis, Esq., a member of the bar of Essex county, who informed her that the statute provided for the adoption of minors only, and an agreement was then prepared, reciting that it was Mrs. Lees’ intention to regard Miss Hough in all tilings as her daughter. Mr. Davis testified that Mrs. Lees conducted the conversation and appeared entirely rational. Later proceedings were brought in the Essex county circuit court whereby Miss Hough, with Mrs. Lees’ consent, had her named changed to Miranda Hough Lees.
“The appellants’ grounds for appeals are:
“(1) That the will was not executed according to law;
“(2) That Mrs. Lees lacked testamentary capacity, and
“(3) That the will was the product of undue influence exercised upon Mrs. Lee by Alfred S. Brown, Robert S. Hough, James Harvie and Miranda Hough, Benjamin Epstein and Edward B. Taylor.
“The testimony of the witnesses to the will made it so clear that the will was executed in the manner and form prescribed by law that this ground of appeal was not pressed.
“Appellants, however, strenuously insist that Mrs. Lees was mentally incompetent to make a will; that she was an old woman, broken in health and mind, and unable to conduct a conversation intelligently. Yoluminous testimony was introduced concerning Mrs. Lees’ mental and physical condition, to the effect that at the time of the execution of the will she was a woman of about eighty years old; that she had difficulty in walking and was unable to carry on extended conversations, or, in fact, any conversation; that she would frequently doze off and had to be aroused. Much stress was also laid upon the fact that Dr. Swift had, in 1920, as already seen, issued a certificate to the effect that she was incompetent to care for herself and her affairs; that at the time when her new home, known as Rainbow Cottage, was constructed, Mrs. Lees had erected therein a memorial window to her husband, which was not alone dedicated to him, but to Miranda Hough Lees as well, and it was insisted that the construction of such a window in her home, dedicated in such manner and rather than in a church, was evidence tending to show incompetency. There was also evidence concerning the construction of an unusually heavy wire fence, set in a concrete base, around a chicken coop in the rear of her dwelling. There was also testimony that she suffered from chronic Bright’s disease, inability to control her organs, colds, heart trouble, high blood pressure, rheumatism, swelling of the hands and limbs, and inability to walk except by dragging or shuffling her feet along the floor.
“Many witnesses testified that, in their opinion, Mrs. Lees was not competent, and, as has already been said, much stress was laid upon the certificate of Dr. Swift. The deposition of Dr. Swift was taken and is in evidence. He states that he is a practicing physician in the State of New York; that the last time he saw Mrs. Lees was on April 22d, 1920, >or between two and three months before he gave the certificate as to her incompetency, and about a year before the execution of the will; that he had been treating her from November 29th, 1916, and that he is not an alienist or specialist in mental diseases; that during the year prior to July, 1920, the date of the certificate, he had seen her eight times, and that he never made any special examination of Mrs. Lees for the purpose of making the certificate. The depositions give no facts upon which the doctor based his opinion.
“It is well settled that the abstract opinion of any witness, medical or of any other profession, upon the question of the testamentary capacity of a testator, is of no importance, and that no judicial tribunal would be justified in deciding against the capacity of a testator upon the mere opinion of witnesses, however numerous or respectable. The opinion of a witness must be brought to the test of facts, that the court may judge to what weight the opinion is entitled. Stackhouse v. Horton, 15 N. J. Eq. 202, 208; Waddington v. Buzby, 45 N. J. Eq. 173, and cases cited (at p. 174); Clifton v. Clifton, 47 N. J. Eq. 227.
“'The opinion of Dr. Swift is therefore entitled to no weight, it being supported by no facts whatever. So far as the opinions of the various witnesses as to testatrix's mental capacity is concerned, these opinions are founded upon facts so trifling that they are entitled to little weight. They merely presented a picture common among the aged and familiar to all who have come in contact with them.
“On the part of the proponents it was shown that Mrs. Lees impediment in walking came about by reason of a fall which she had some years previous, and that for awhile she had to walk with a cane, and that she never recovered the complete use of her foot, but that it dragged when she walked. That she was able to get about without much difficulty, however, is evidenced by the undisputed fact that up to within a month or so of the date of her death she attended services at a church in New York every Sunday except in the summer months, when the church was closed, and that then she attended a local church, and this irrespective of the character of the weather. It is also undisputed that she made many trips to New York in connection with her business affairs; that she always went to her safe deposit box in the companjr of either Mrs. Iiarvie or Miss Plough for the purpose of cutting coupons on her bonds when they became due; that on these occasions she, herself, prepared the envelopes for depositing the coupons, although the coupons themselves were actually cut off by her attendant and handed to her and she placed them in envelopes, and that this continued until a month or so prior to her death and for a year after the executing of the will. It is also undisputed that she had numerous afternoon teas at her home, to which many of her friends were invited. This continued, at least, until the spring after the execution of her will. Mrs. Lees was a voluminous letter-writer, and an inspection of her correspondence, a great mass of which was introduced in evidence, indicates that she was an intelligent, cultured woman.
“Where it is shown that a testator was able to transact business with sagacity and decision, his testamentary capacity will be established. Whitenack v. Stryker, 2 N. J. Eq. 8; Hunt v. Hunt, 13 N. J. Eq. 161; Yauger v. Skinner, 14 N. J. Eq. 389. As late as March 3d, 1922, a year after the execution of the will, testatrix addressed a letter to John Augustus Lees, a brother of her husband and manager of the Lees Manufacturing Company, which her husband had founded and in which she had a large interest, complaining of the fact that she had received no dividends from the business for some time; that her income had been seriously diminished and that she felt that she must sell her interest in the business and invest the money received from the stock in an annuity. She goes on in her letter to explain that this is a great sorrow to her, because she knew she would have to sell at a sacrifice; that she did not wish the stock to go outside of the family, and was therefore willing to let him have it at a low figure, in order to keep it in the family; that she was sure her husband would have liked her .to do that. It is also in evidence that she made frequent business calls at the office of the Lees Manufacturing Company in New York, and had consultations there with one Benjamin Epstein, whom she had frequently consulted in regard to her business affairs, and who testified that he prepared statements of the business for her, which she examined carefully and complained bitterly, because of the fact that the business was paying her no dividends. It is also in evidence that she consulted certain brokers from time to time in regard to her investments.
“ ‘The standard of testamentary capacity has been fixed at a very low point in the scale of intelligence. The right of a testator, however feeble his powers of mind or body, to the control of his property by testamentary disposition, so long as he has intelligence to exert it, has been, by the courts of this state, at least, inflexibly maintained.’ In re Shimer’s Will, 103 Atl. Rep. 383, and cases therein cited. Measured by the standard laid down in this case, there can be no doubt that Mrs. Lees was possessed of testamentary capacity. It is also contended by appellants that the will is the product of influence exercised by or the result of a conspiracy entered into between Alfred S. Brown, Robert S. Hough, James Harvie, Miranda Hough, Benjamin Epstein and Edward B. Taylor. In support of this contention it is urged that about 1920 Miranda Hough took complete charge of the house and also of Mrs. Lees’ finances; that she sold a large number of bonds and deposited the proceeds in her name, and from that time on completely dominated the household, and that it was during this complete domination period that the various papers were executed and the will was drawn and signed; that she accompanied Mrs. Lees to the office of Mr. Brown and remained in the room during the entire period, so that nothing could escape her.
“First, in regard to the sale of the bonds, the testimony is that, in order to raise the money with which to construct Rainbow Cottage, Mrs. Lees directed Miss Hough to sell certain of her Liberty bonds, which she did. Miss Hough frankly states that she placed the proceeds in the bank, in her own name, and used it for the purpose designated, which testimony stands unimpeached. Miss Hough says that from the time of the so-called adoption agreement they lived together as mother and daughter; that she, at Mrs. Lees’ request, addressed her as ‘mother.’ There is also in evidence letters from Mrs. Lees to certain of her friends, announcing the fact of the so-called adoption, and requesting them to accord Miss Hough the greatest consideration. There is also in evidence a formal engraved card announcing the supposed adoption, and that Miss Hough would thereafter take the name of Miranda Hough Lees which was mailed to their friends.
“That confidential relations existed between Miss Hough and Mrs. Lees cannot be doubted, but it would seem that these relations were more similar to those existing between mother and daughter. Mrs. Lees was alone in the world, and for some six or seven years Miss Hough had been her only companion, and, according to the universal testimony, had served her well and faithfully, and it was but natural that an affection should spring up between them.
“The existence of confidential relations between the testator and the favored beneficiary; standing alone, does not necessarily constitute undue influence. It is but natural that a person, when disposing of his property in anticipation of his decease, should give it to those who show him kindness and manifest love and devotion toward him. In re Eatley's Will, 82 N. J. Eq. 591. And the mere fact that the sole beneficiary of the will was the confidential companion and business adviser of the testator for several years prior to his death, is not, of itself, evidence of undue influence. Wheeler v. Whipple, 44 N. J. Eq. 141. And in this connection it must be remembered that Miss Hough, or Lees, as she should be called, is not the sole beneficiary under the will of Mrs. Lees. Estimates of the proportion of the estate which she will receive under this will vary from fourteen per cent, on the part of proponents to thirty per cent, on the part of appellants, the difference being accounted for by different valuations of the securities of the estate and other questions which need not be entered into here.
“The influence which the law denominates ‘undue5 must be such as to destroy the free agency of the testator and amount to moral or physical coercion. It must be proved, moreover, that the act done was the result of such coercion. There must be a control exercised over the mind of the testator or an importunity practiced which he could not resist. Clifton v. Clifton, supra; In re Tunson’s Will, 83 N. J. Eq. 277. The will now under attack was executed under the following circumstances. Testatrix had executed several wills theretofore, and on February 14th, 1921, wrote to her attorney, Mr. Brown, in her own hand, to the following effect:
“ ‘Circumstances have arisen involving Mr. Philip Haffner, which makes it imperative for me to change my will so decidedly that I have decided to make a new one, and I am writing to ask you to notify me of some day next week that promises to give you sufficient leisure to accord me an interview with you for that purpose.5
“Later on Mrs. Lees sent to her attorney, Mr. Brown, written instructions, in her own handwriting, in regard to the changes she desired in the will. These instructions referred to a previous will, which he had prepared for her, and she had executed, and which instructions could be identified by the paragraph in that will which he had in his possession. The written instructions above referred to were received in evidence and were as follows:
“1st. F. Philip Haffner to be excluded from my will for reasons I will inform Mr. Brown orally. In his place, as executor with Mr. Brown, I want Dr. Robert Ii. Hough, 3136 Broadway, New York, to take his place.
“8. Miranda Hough Lees, now my adopted daughter, instead of F. Philip Haffner.
“11. Mrs. Philip Haffner to receive direct $10,000, and to do exactly as directed to do. Incorporate in this will what my codicil directs in connection with Mrs. Haffner’s two boys.
“12. I give and bequeath to Miranda Hough Lee, my adopted daughter, what I have designated in paragraph 12.
“17. Omit.
“18. Omit.
“19. Omit.
“20. Omit.
“21. (Not Lo be omitted.)
“22. Omit.
“23. Omit
rf24. Omit.
“25. Omit.
“On March 8th, 1921, Mr. Brown received the following letter from Mrs. Lees, in her handwriting, which was received in evidence.
“ ‘Tuesday, at 19 Whitman avenue, East Orange, New Jersey. Dear Mr. Brown: In accordance with dear Mrs. Harvie's wish I have decided to ask you to add Mr. Harvie's name in connection with yours and Dr. Hough's, concerning which I would be very pleased to have you write him, also Dr. Hough, if you have not already done so. I also trust it will be perfectly convenient to you to have me sign my will before next week is in the past.'
“Mr. Brown testified that at the execution of the will, on March 16th, 1921, Mrs. Lees, accompanied by Miss Lees, called at his office, on which occasion Mrs. Lees talked about the reasons for making the changes which she did make. She talked about certain difficulties that had arisen between her niece Marion, who had married Mr. Haffner, and Mr. Haffner. She said that there had been a disagreement between them and they had separated, and she spoke very decidedly about Mr. Haffner’s conduct towards her niece Marion, and she said she wanted to eliminate him from her will both as executor and as trustee for Marion, and also as a legatee, those provisions Mr. Haffner enjoyed in the previous will. The will, which was in exact accord with Mrs. Lees’ written instructions, was thereupon duly executed under the superintendence of Mr. Brown, the witnesses being Joseph Erankenthal, Franklin S. Morrell and Homer H. Pennock.
“While the existence of confidential relations between the testator and the favorite beneficiary, standing alone, does not, necessarily, constitute undue inffuence, yet when such relations are supplemented by other indicia of undue influence, such as the exclusion from testator of the natural objects of his bounty, clandestinity in the execution of the will, or the active participation of the favorite legatee in procuring its execution, a presumption of undue influence may arise. Spark's Case, 63 N. J. Eq. 242.
“In the case under consideration there certainly was no exclusion from the testatrix of the natural objects of her bounty. With the exception of the one or two of her numerous nephews and nieces, she either visited, or was visited, constantly by all of them. Clandestinity in the execution of the will was not shown. In fact, Mrs. Lees wrote to Mrs. Harvie an exact account of what disposition she had made in her favor. The presence of Miss Lees at the execution of the will is not an active participation in procuring the will such as is spoken of in the cases. As a matter of fact, she participated in no way in the execution of the will. As has been shown, the direction as to the changes in the will were received by Mr. Brown in the testator’s handwriting, and in this connection it is significant that the instructions for preparation of the will did not change the provisions for Miss Lees from those in the previous will of August, 1920.
“The burden of proving undue influence is upon him who asserts it. It has, however, been held that where confidential relations are shown, and any of the indicia of undue influence before mentioned, or other slight circumstances exist, that the burden of proof is shifted, It does not appear that even the slight circumstances above mentioned as sufficient to shift the burden of proof exist. But, assuming that they do exist, and the burden of proof has shifted, and that it is the duty of Miss Lees to prove affirmatively that she did not influence the testatrix, we are met with her frank testimony that she did not influence, or attempt to influence, Mrs. Lees in the execution of her will, and that she took no interest in what disposition Mrs. Lees made of her property beyond such as was necessary to secure to her the money which she had tied up in the Rainbow Cottage, which represented all she had in the world. Where the burden is cast upon the proponents of a will to show that undue influence has not been exerted, such burden will, as a general rule, be sustained by a general denial of undue influence if otherwise credible and not challenged by other facts. In re Eatley’s Will, supra.
“In' the case under consideration we have 'that general denial, and the denial is entirely credible. The testimony does not establish a single incident where Miss Lees attempted to impose her will upon the testatrix in the management of her business affairs. As to the charges of conspiracy they are entirely without foundation of fact.
“The will should be admitted to probate.”

For affirmance — The Chiee-Justice, Trenchard, Parker, Minturn, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskirk, Clark, McGlennon, Kays, JJ. 14.

For reversal — Kone.


author: Pee Cueiam.

text:
    Lillian Ruth Arthur, respondent, v. Clarence J. Arthur, appellant.
    [Decided May 18th, 1925.]
    On appeal from a decree of the court of chancery advised by Advisory Master Grey, who filed the following opinion:
    “The petitioner in this cause filed her petition January 30th, 1922, for divorce, in which she charged her husband with adultery. Paragraph 2 of the petition reads as follows:
    “ ‘2. Defendant, since his marriage to your petitioner, and on October 4th, 1921, and on October 25th, 1921, and on divers other days in the month of October, 1921, committed adultery with one Viola Sims, at Camden, in the county of Camden; and at various other times and at various other places, said defendant committed adultery with divers other women, in Camden, New Jersey.’
    “The petition alleges that the parties were married on November 23d, 1912; that they were bona fide residents of the State of New Jersey when the cause of action arose, and have ever since continued to be so; that petitioner has no means of support except from her own exertions, and that three children were born of the marriage, and were then living, and were named in the petition, two boys, of five and two years, respectively, and a girl of four years of age.
    “The prayer is that the marriage be dissolved according to the statute, and that the defendant be compelled to support the children, and that the petitioner be awarded their custody, and be permitted to resume the use of her maiden name, and for further relief.
    “To this petition the defendant filed an answer denying its allegations.
    “On the issues thus raised, hearings were commenced before me, as advisory master, on November 8th, 1922, and four hearings were had until October, 1923, when the defendant’s counsel applied for leave to amend the answer by adding a cross-petition charging the petitioner with adultery. An order was entered for that purpose October 23, 1923, and the cross-petition charged the petitioner with adultery in this language :
    “ T. Petitioner, Lillian Ruth Arthur, the defendant against this cross-petition, did, since her marriage to cross-petitioner, and on or about June 29th, 1921, at or near Blue Anchor, in Camden county, New Jersey; and on or about July 24th, 1922, at 323 Berkeley street, in the city of Camden, cross-petitioiier’s reeide22ce; and on or about August 17th, 1922, at 727 Walnut Street, in the city of Camden, the residence of Clement T. Branch, and at other times and places iir said months, wickedly disregarding the solemnity of her vows and the sanctity of the marriage state, commit adultery with the said Clement T. Branch.’
    “The cross-petitioner prayed a dissolution of the marriage according to the statute, and that he be awarded the custody of the three children. On the additional issue thus raised the cause proceeded, and, after three additional hearings, was closed on December 19th, 1923. Argument was heard on February 15th, 1924.
    “I will discuss the testimony and proofs as though the answer and cross-petition were filed by the defendant as one pleading, at the beginning of the case.
    “I find as a fact that the petitioner and defendant were lawfully married, and were bona, fide residents of this state at the time the alleged cause of action arose, and have ever since continued to be residents of this state.
    “The petitioner, Lillian Buth Arthur, and her husband, Clarence J. Arthur, are colored people of means and position in their community. The husband’s earnings are upwards of $1,500 a year as a member of the police force of the city of Camden. He and his wife and children always appeared before the court well dressed and well mannered. The neighbors and other witnesses accompanying they were of the same class.
    “Bor the sake of brevity and clarity, I will discuss the testimony in the inverse order in which it was presented.

      “By the cross-petition, the defendant accused his wife of adultery with Dr. Clement T. Branch. This man has been a physician for twenty-three years, and is practicing among the colored people in the city of Camden. He is, himself, a colored man, and impressed me as having ability and character. His testimony -was clear and convincing, as was the corroborating testimony of Mrs. Arthur. The testimony against him on this charge was given principally by Clarence Arthur, himself. His testimony fails to show any acts of affection or any feeling, other than friendship, between his wife and Dr. Branch. The relation of Mrs. Arthur with the Branchs was, obviously, close and neighborly. Dr. and Mrs. Branch, with the consent of Mr. and Mrs. Arthur, had the custody and care of the oldest child, wdio lived with them for some time prior to the suit and was living with them until his death, by accident, outside of the court house after one of the hearings in this cause. Dr. Branch had an automobile, and occasionally took out Mrs. Arthur and the children, accompanied some times by his wife, some times by other people.
    “The only act testified to by Arthur that might have indicated affection between Dr. Branch and Mrs. Arthur, is found at the bottom of page 227, et seq., of the typewritten case. He there says he ran upstairs to his room, got in a closet, and kept the door open on a crack; that Dr. Branch and Mrs. Arthur brought the children upstairs and laid them on the bed, and came downstairs. He followed and stood on the stairway looking into the hallway, apparently downstairs. He there saw Dr. Branch’s arms around his wife’s shoulders, and saw him kiss her, and heard her say, ‘Oh, don’t! Clarence came up in the house, and he may be in the house,’ so Branch went out the door and she stood and talked to him. Then Arthur went upstairs to the back room. Presently, his wife came upstairs and lit the gas, and while she shut the door in the room, he says, ‘I sneaks up and goes downstairs in the dining-room about half an hour, then I go to the front door and open it easy and slams it.’ I walked upstairs and said, ‘Honey, how long you been in?’ Afterwards, they retired, and he attempted to have intercourse with her. She declined, and he inquired why, and she said, 'Clarence, I will tell you; I think you ought to give me some protection, &c.,’ and he wound up his testimony on this point by saying, 'I wouldn’t leave her suspicion anything happened between her and Dr. Branch that night,’ meaning, I suppose, that he would not .let her suspect that he had observed her and Dr. Branch that night.
    "This is the only testimony I can find in the case in the least evidential of any affection, or demonstration of it, between Mrs. Arthur and Dr. Branch. I doubt its truth. I do not believe that Clarence Arthur, who is taller, larger and younger than Dr. Branch, would have acted as he testified he did, had Dr. Branch and his wife acted as he testified they did.. To sneak around, as he expresses himself, when an older, weaker man was hugging and kissing his wife in his own house, and allow him to get away, then to fool his wife into believing that he did not know that Branch had been there, and then to seek intercourse with her, is not, in my judgment, the way a normal man would have acted. This testimony is not supported by any other witness, nor is there any testimony of similar character, which could be considered corroborative. On the contrary, Estella L. G-audian, a white woman employed as a detective by Clarence Arthur, swears that, although she followed Dr. Branch and Mrs. Arthur about and observed them at different times in an automobile driven by Dr. Branch, and saw Mrs. Arthur getting in and out of the car, yet there was not any demonstration of affection, or indication of their having been together in any disorderly places, or guilty of any disorderly or unbecoming conduct. Why this witness was called by the husband I fail to comprehend. She seemed anxious to besmirch Mrs'. Arthur’s character, but was unable to discover any damaging facts.
    "Mrs. Branch, wife of Dr. Branch, testifies that she and the doctor and the Arthurs were very friendly before the suit was commenced, and afterwards until Clarence Arthur filed the cross-petition; that they continued thereafter to be very friendly with Mrs. Arthur; that she saw Mrs. Arthur nearly every day, and that her own relations with Dr. Branch were absolutely harmonious; that she never suspected there was anything wrong between the doctor and Mrs. Arthur.
    “Dr. Branch testified that the first he heard of this suit was when Arthur came to his house, and, in the presence of his wife told him about the suit, and threatened him that if this case went to court he was going to accuse Dr. Branch of intimacy with his, Arthur’s, wife, and that he would take back his boy, Johnny. This testimony was corroborated by Mrs. Branch. The case did go on; Arthur never did take the boy back, but the cross-petition referred to was brought several months afterwards by amendment to defendant’s answer.
    “In my opinion, the allegations in the cross-petition are not supported by the proofs, and I will advise a decree dismissing it, with costs.
    “On the main case presented by the petition of the wife and the denial of the allegations by the husband, he is charged with the commission of adultery with Viola Sims, in October, 1921, at Camden, and at other times and places, with other women, in Camden, New Jersey.
    “The witnesses Bert Mahan and Edith Welsh say that Clarence Arthur kept a disorderly house at 224 Line street, and later for four or five days at 323 Berkley street, all in the fall of 1921. Bert 'Mahan was the runner for the house, and was paid on some occasions by Arthur, and on others by the inmates of the house, who were Edith Welsh and a woman called Nellie Sims. Mahan testified that Nellie Sims and Clarence Arthur were in partnership in the business; that Arthur himself frequented these houses, which he characterized as disorderly houses, and other houses of like character, of which there were many in the neighborhood; that Clarence Arthur was very friendly with Nellie Sims at both these houses; that he saw Arthur with his arms around Nellie Sims. Edith Welsh testifies to the same effect, and also that Arthur was very friendly with Nellie Sims; that she had seen 'Nellie hugging and kissing him often;’ that they seemed jointly interested, financially, .in the business; that one night, when, she came to the Berkley street house, the door was locked; she knocked, and after a few minutes Arthur came downstairs and let her in, and then she went upstairs and found Nellie in her bedroom with all her things on; that this occurrence was the latter part of October or the 1st of November, 1921, and was at night, about seven-thirty or eight o’clock; after that they all sat downstairs, with Bert Mahan, for a couple of hours, then Arthur went out and came back about twelve o’clock, and after that she left, leaving Clarence Arthur and Nellie Sims in the house.
    “Ira Hall testified that he was familiar with the conditions existing as testified to by the other witnesses at the Line street and Berkley street houses; that he knew these girls, Edith Welsh and Nellie Sims, and that Clarence Arthur visited the houses; that he had seen him there many tiines; that the houses were used for disorderly purposes; that Bert Mahan was a runner for the houses; that the way the Berkley street house, which was Arthur’s residence, happened to be used, as indicated, was that Arthur took his wife and children over to relatives in Philadelphia, and in their absence used the house for disorderly purposes. He testified that he had a conversation with Arthur [Hall then being a policeman on that beat] to the effect that there were no disorderly houses in the Third ward at that particular time, and Arthur said hé thought he would open his house [which was in the Third ward] and send his wife to Philadelphia, and have Edith Welsh and Nellie Sims up there. He goes on to say that Arthur did this, and that he, Hall, had hro business interfering, because there were twenty-seven disorderly houses in the Fifth ward, and I didn’t think I had a right to close his.’
    “Mrs. Arthur testified that in November, 1921, she was away four days visiting her sister in Philadelphia, and tha* when she returned to their house, 323 Berkley street, there was a lot of soiled linen and cigarette butts and glasses about, and the house was upset.
    “The three witnesses, Bert Mahan, Edith Welsh and Ira Hall, whose testimony has been examined, are all of low character, as their testimony indicates. Hall was a policeman, afterwards discharged upon trial for conduct unbecoming an officer. While these witnesses are of low character, the mere fact that they are such does not affect the credibility of their testimony. State v. Tomasi, 69 Atl. Rep. 214 (at p. 216); Paul v. Paul, 37 N. J. Eq. 23. If this testimony is to stand, it is sufficient to sustain the allegations of the petition.
    “It, therefore, remains to consider whether this testimony contradicted, or sufficiently so, to cause the petitioner’s case to fall.
    “Arthur testifies that he knew Bert Mahan; that he was soliciting soldiers for a police officer and a woman in the house on Line street. He denies that he was in partnership with the woman Sims, and says he had nothing to do with running a disorderly house in Camden; that he never paid Mahan anything, and was not engaged in soliciting people to go to these disorderly houses; that he was a constable. When told on the stand that Mahan said he had seen Arthur sitting on a lounge with the Sims girl, with her arms across his shoulder, Arthur answers, T don’t believe he ever did; he seen me in the house, but never on the lounge.’ He says the next time he was in the house, they were cleaning up the Fifth ward, when “I got a whiff they were after Edith and Yiola Sims, and I came down and I says, “Hall, listen, Hall, they are after Edith; jrou had better get her put of town;” and he moved her from the Line street house around to the Second street house.’
    “The testimony of Edith Walsh that she saw Arthur coming downstairs and this Sims girl with him, was called to his attention. The witness asked, “Where was that?’ and upon being told it was one of these places, Arthur said, £I can’t remember being there; I don’t remember being in any door at all when I came downstairs.’
    “In view of his previous testimony, above referred to, he makes this remarkable statement, £I don’t know anything about the Sims woman; the only one I know is the Welsh woman; I don’t know anything about the Sims woman; never seen her.’ Afterwards he said, £I don’t know her.’ Then, when asked, £Do you know the Sims girl, or don’t you?’ he says, “Only when I see her.’ He then says that he saw her several times on the street, and several times at a window in a house on Locust street: that he did not know anything about the Viola part, that he knew her just by the name of ‘Sims.’ He admits that his wife went to Philadelphia for a few days from the house at 323 Berkley street. He was again asked whether he recalled Edith Welsh banging on his door, and coming down and the Sims woman being upstairs: ‘Q. You don’t recall that at all? A. I don’t know.’
    “The testimony of Arthur, thus attempting to contradict the petitioner’s witnesses, is indirect, confused and contains admissions which bear out to some extent the petitioner’s position.
    “Defendant’s counsel made a great deal of the argument and in his brief of the fact that the Sims woman was named ‘Viola Sims’ in the petition, but was called ‘Nellie Sims’ by the petitioner’s witnesses. I cannot see that this argument has any weight. Arthur, himself, calls her Viola Sims sometimes, and'again he says he did not know her by any first name, and only as the Sims woman. It is perfectly clear to me that the Sims woman, by whatever name she was called, was the same person referred to in the pleadings, the testimony of the petitioner’s witnesses, and that of Clarence Arthur himself.
    “No other witness than Arthur is called in denial or contradiction of the petitioner’s witnesses, and on this branch of the.case I find that the allegations of the petition are sustained by the petitioner’s proofs.
    “This finding is strengthened by testimony that in December and January, just prior to the commencement of the suit, Arthur had a venereal disease. Mrs. Arthur testifies that she first discovered his condition when she saw her husband treating himself in December, 1921; that she saw Dr. Branch’s name on the medicine; that she went to Dr. Branch and he informed her that Arthur had consulted him, and was suffering with a venereal disease, and advised her to have no sexual relations with him. Mr. and Mrs. Arthur had not been living together matrimonallv since September, 1921, and she had not contracted the disease.

      “Dr. Branch testified that Arthur first came to see him about this trouble about Christmas, 1921; that he examined him thoroughly, and told him he was suffering with a venereal disease, and gave him medicine and prescribed a treatment. Arthur returned for additional medicine and treatment January 8th, 1922. That was the last time he applied to Dr. Branch for medical aid.
    “If this testimony is true, when connected with the previously discussed testimony as to Arthur’s frequenting disorderly houses, he 'may have contracted the disease in October or November, 1921, and after sexual relations with his wife had ceased.
    “Against the testimony of Mrs. Arthur and Dr. Branch, Arthur denied having any disease and having consulted Dr. Branch. There was negative testimony by Arthur’s father, at whose house he lived after the suit was commenced in January, 1922, and by his brother, who roomed with him there, and his mother, who washed his bed clothing and linen, that there was no signs of such a disease — no discharge or staining of bed clothes, underclothes, &c.
    “Dr. Lippincott was called on behalf of the defendant and testified that he had examined Arthur as to his physical qualifications for the police force on March 22d, 1922, and that he found him free of venereal disease. He testified, however, that if Arthur had such a disease in December, 1921, and was treated by Dr. Branch, as Branch testified he prescribed for and treated him, and if Arthur kept up such treatment for even as short a period as a month, he could have been cured of the disease in such a way that Dr. Lippincott would not have been able to discover, on March 22d, 1922, thdt he had had the disease three months before. He also testified that it was quite possible for Arthur, if suffering from the disease, to so care for himself that no stains or discharge would appear on his clothing or bed linen.
    “I conclude, therefore, that Arthur had contracted such a disease, and was suffering from it in December, 1921, and January, 1922.

      “There was also testimony by Ira Hall that he loaned Arthur a key to his house, and that, on his return to the house the next morning, he found Arthur, John Auletto, Edith Ellis and a woman named Mary all together in a nude condition in one bed. Arthur denied this, and Auletto and Edith Ellis deny that Arthur was present. I make no finding on this matter, as it is unnecessary to the disposal of the case. '
    “The only remaining question is whether the adultery proven against Clarence Arthur was condoned.
    “Arthur testifies that three days after. the papers were served on him in this suit, he followed his wife down to her mother’s at Fredericksburg, Ya.; that he went to her mother’s house and asked for her, and she came out; he told her he had a room for her at Scott’s; that Scott’s was dike one of these country boarding-houses;’ that his wife had lumbago and he carried her over to Scott’s; that he registered there for them both; that they stayed there all night together in the same room, and that he had marital relations with her; that he spent the next day with her and her family and friends.; that he left the next evening on the seven o’clock train, she saying that if he would get a home and fix it for her, she would com'e back; that that was the last time he ever stayed with his wife at night.
    “This testimony was denied by Mrs. Arthur to the extent that Arthur stayed with her all night and had marital relations with her. She said that he did come to Fredericksburg, saw her about eleven o’clock that night, and asked to see the children; that the children were in bed, and he left in about half an hour; he returned the next morning about eight o’clock and stayed until seven o’clock in the evening.
    “Mrs. Scott, who kept the so-called boarding-house, testified that Arthur was there on two occasions; that the first time he came she was away and did not assign a room to him, but saw him leave in the morning; that the second time, she was there when he arrived and when he left; that she did not see Mrs. Arthur with him either time; that she does not keep a register in her house, and never has kept one. Maria Richards, daughter of Mrs. Scott, testified that she lived at the hotel kept by her mother; that she received Arthur at the time of his first visit and assigned him a room; that Mrs. Arthur was not with him, and did not occupy the room with him that night; they did not keep a register; she did not see Arthur when he was there the second time.
    “On this testimony I find that Mrs. Arthur did not condone her husband’s adultery, and that such defense to her suit falls.
    “On the whole case, therefore, I find that the allegations of the petition are sustained, and that the defendant has not proven the allegations of his cross-petition, and that his defense to, his wife’s case, of condonation, has also not been proven. I will advise a decree for petitioner, and that defendant’s cross-petition be dismissed.
    “It remains to determine the question of alimony and counsel fees.
    “The proofs were that Arthur is a policeman of the city of Camden, with an income of $127.40 per month, or $1,528.80 per year. From this sum he should pay his wife sufficient for her support and for the support of the two children, a girl of six years and boy of four years. The oldest child, who was being cared for by Dr. and Mrs. Branch, was killed in an accident in front of the coxxrt house just after one of the hearings. I had already heard counsel as to the amount of the alimony and counsel fee. I will allow the wife $50 per month for the support of herself and the two children, aixd I will allow a fee of $250 to petitioner’s counsel for the extensive aaid continuous services rendered his client in this case.”

      Mr. Patrick H. Harding, for the respondent.

      Messrs. Wescott & Weaver, for the appellant.
   Pee Cueiam.

The decree appealed from will be affirmed, for-the reasons stated in the opinion filed in the court below by Advisory Master Grey.

For affirmance — The Chief-Justice, Trenchard, Parker, Minturn, Kalisch, Black, KatzenbAoh, Campbell, Lloyd, White, Van Busicirk, Clark, McGlennon, Kays, JJ. 14.

For reversal — None.


author: Pee OuKtAir.

text:
    Catherine Daly, appellant, v. Agnes Eichkoff et al., respondents.
    [Decided February 21st, 1924.]
    'On appeal from a decree of the court of chancery advised by Vice-Chancellor Bentley, who rendered the following opinion:
    “This is a bill to cancel a deed. It alleges that the complainant • is of advanced years, infirm, of weak mind, and easily influenced, and 'that the defendant Agnes Eichkoff had, for a long time before the execution of the conveyance attacked, been the complainant’s agent in the care of certain real estate and bank accounts in which she made deposits and withdrawals for the complainant, who relied upon her entirely in all business transactions, and in whom she had complete trust and confidence. That under these circumstances the defendant mentioned, on the 3d day of July, 1917, induced the complainant to make a deed of some of her real estate, reserving therein only an estate for life, and to become absolute upon the complainant’s death. That because of -her infirmities the complainant was unable to properly comprehend the nature of her act, and performed the same without the benefit of independent advice while under the domination of the said defendant; and that such conveyance was made without any consideration whatsoever.
    “To this bill the defendants have answered, denying all of the important allegations of the bill, but admitting the execution of the deed mentioned, alleging, however, that it was a valid conveyance upon a sufficient consideration.
    “The complainant is a very aged woman who does not know her age, but is apparently upward of eighty years old. The defendant Agnes Eichkoff is thirty-eight years of age, having come to the United States at the age of eighteen for the purpose of residing with and assisting the complainant, who is her aunt. Erom that time, in 1905 until 1910, she resided with the complainant, and, notwithstanding the latter’s account of their relationship, I am satisfied became a third hand to her in the running of her home and managing her property, except for about a year, when she lived out with a family. There has been considerable dispute as to how much service she performed, but I think it is clear, from the testimony, that their relations were most intimate.
    “The defendant wife swears that her sister, in the presence of the complainant, explained that the defendant’s father had divided all his property among his other children, leaving none for Mrs. Eichkoff, for the reason that Mrs. Daly had promised to provide for her at the time that Mrs. Daly visited Ireland and saw Mrs. Eichkoff’s father. She also testified, without contradiction, that Mrs. Daly said nothing upon hearing Mrs. Eichkoff’s sister so remark. The defendant also testified that the complainant had said that she was going to leave the property in question to Mrs. Eichkoff. Erom all of this it is impossible to escape the conviction that there was a tacit understanding between the complainant and her niece, that, in return for the latter’s services, and, because of affection, she was eventually to have the property in dispute.
    “In 1911, after the marriage of the defendants, the complainant contemplated building upon this land, but had not enough money to finance the same. Thereupon, she borrowed from the defendants the sum of $3,000, executing a bond and mortgage upon the property in question, to secure the repayment of the loan, to bear interest at the rate of four per cent, a year. This is very significant of the friendship that existed between the parties. It is exceedingly illuminating that this younger woman was willing to forego one-third of the interest she might fairly have expected and could have readily secured from any other borrower in days when loans of that amount were not looked upon with contempt. In fact, it does seem to me, from all the testimony, that defendants’ counsel is justified in having said that whenever these two women dealt with one another, the elder had the better of the bargain.
    “After the mortgage just mentioned had been paid off, and oar the 2d day of July, 1917, the trairsaction was initiated between the complainant a-nd Mrs. Eichkoff that has led to this litigation. The stories of the two parties engaged differ widely, and, in fact, irreconcilably. The complainant says that on that dajr, after innumerable and almost constant importunities by her niece, she allowed the latter to take her [then greatly enfeebled in health and unwillingly] to the office of Mr. William C. Cudlipp, a practicing attorney, for the purpose of making a will, wherein she was to devise the property in question to Mrs. Eichkoff. That upon arriving at the lawyer’s office Mrs. Eichkoff objected to the gift being made by will, and insisted instead that the transfer be effected by an immediate conveyance. She says that at that time and place Mrs. Eichkoff forced a thousand dollars in cash upoar her, although she objected that she was not making a sale and did not desire the money. However, she eventually took the same and deposited it to her account in the baaik. The testimony of the defeaadant, oai the other hand, is that the complainant, without solicitation and without iarforming her of the purpose, took her to Mr. Cudlipp’s office on the day mentioned, and, after arriving there, disclosed her purpose, which was to borrow the sum of $3,000 from Mrs. Eichkoff for the purpose of purchasiiag an entirely different piece of property, and to repay her therefor by making a will, in which the premises in question should be devised to Mrs. Eichkoff.
    “Mrs. Eichkoff says that she objected to that method of securing her, because of the risk that the will would be contested by the testatrix’s direct heirs-at-law, and that it was eventually suggested, not by her, but by Mr. Cudlipp, that the complainant carry out her intentions by the perfectly simple and obvious means of a conveyance in fee, reserving to herself a life estate. That method was agreed upon, and, having taken his instructions, Mr. Cudlipp prepared the deed, and the two women returned to his office on the following day, July 3d, when the deed was executed by the complainant and forthwith recorded. Mrs. Eichkoff says that, when Mr. Cudlipp’s suggestion was made, the com-' plainant said, T will do that, but I have very little money on hand. If she gives to me $3,000 I will deed to her the property.’ She says that she then told her aunt that she did not have $3,000 with her and would have to talk to her husband, and that for that reason, although the deed was prepared, Mrs. Daly refused to proceed until she had the money, and that this explains why the matter went over until the following dajr. On July 3d she says that there was no one-thousand-dollar transaction, but that she delivered to the complainant the said sum of $3,000 in the form of a cashier’s check drawn by the Commercial Trust Company of Hew Jersey, in the sum of $3,000, dated July 2d, 1917, to the order of Frank A. Eichkoff, and endorsed by the payee to Catherine Daly, the complainant, by whom it was endorsed and deposited to her account. It is in line with so much of Mrs. Daly’s testimony that she stoutly and emphatically denied any $3,000 transaction ever having taken place, except the one in 1911, which had been terminated by the discharge of the bond and mortgage three years before the circumstances just related. I think it is clear that great confusion exists in the mind of the complainant. What she really had in mind concerning a $1,000 transaction was an entirely separate matter that was consummated later in the same month of July, when she borrowed that sum for the purpose of buying another house on Concord street. In- this, as in the previous one, Mrs. Eiehkoff is corroborated by another cashier’s check, dated July 20th, 1917, to the order of both defendants, and endorsed by them and the complainant, into whose account the proceeds were deposited, together with the sum of $213, in cash to make up the amount of the deposit shown in the complainant’s account.
    “Besides the testimony of Mrs. Eiehkoff and the documentary corroboration mentioned, Mr. Cudlipp very powerfully supports her account of this transaction. A point has been made in the argument of the fact that he' does not swear as positively to the occurrence of six years before as he might have had they transpired but a week past. It seems to me ' that this should beget more confidence in what he says rather than cast any doubt as to the truth of the facts contained in his testimony. He does testify to the best of his recollection in harmony with the main facts of Mrs. Eichkoff’s testimony and in complete accord with so much of the documentary evidence as relates to the part he played in the matter. It is scarcely credible that he could have dreamed facts favorable to the defendants’ case, and, of course, it is perfectly apparent that there can be no corrupt bias, or he would have more closely approximated what she said.
    “Until 1922, these two women appear to have lived upon the friendliest terms, which were destroyed by two things: The complainant wished the defendant to share equally with her the purchase price of a summer home she wished to buy, with the characteristic provision, however, that she should take title in severalty in herself. To this they would not accede. About the same time, learning that her aunt was about to sell at a handsome profit the property into which she had put the $1,000 borrowed from the defendants in the end of July, 1917, and for which they held no security, Mrs. Eiehkoff requested the return of that money. At this time some of the complainant’s grandchildren had come to live with her, naturally supplanting Mrs. Eiehkoff, and from these circumstances the rupture took place.

      “Complainant’s counsel, in his argument, relies upon that line of cases typified by Haydock v. Haydock, 34 N. J. Eq. 570; Slack v. Rees, 66 N. J. Eq. 447; Hall v. Otterson, 52 N. J. Eq. 522; Post v. Hagen, 71 N. J. Eq. 234, and Giuditta v. Bonacci, 95 N. J. Eq. 147, embracing the so-called doctrine of independent advice. My difficulties with this position are threefold — ■

      “First. As I have already intimated, I feel that while there was a very close relation existing between these two women, it cannot be said that the niece exercised any domination over the mind of the aunt. It seems to me that, on the other hand, in all their relations it was the latter who secured the lion’s share of the benefits of their dealings with one another.

      “Secondly. She performed the very act from which this suit springs on the advice of a reputable law3rer of good standing, chosen by her, and, subsequently, employed in another matter, if, in fact, not having been retained by her in several previous ones, while he never had any professional relations with Mrs. EichkofE.

      “Thirdly. The doctrine is aimed only at voluntary gifts and conveyances, while in the present case the complainant received the very substantial consideration of $3,000 for an estate in remainder, which I am inclined to think may have been worth at that time no more. This woman, aged as she is, presented no indication to my untrained eye of approaching dissolution, and it may be that by the time her niece comes into the enjoyment of what she purchased she may find that she will have paid at least dollar for dollar what it was worth.
    “I will dismiss the bill.”

      Mr. Alexander Simpson, for the appellant.

      Messrs. Melosh, Morten £ Melosh, for the respondents.
   Pee OuKtAir.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Bentle3’.

For affirmance — The Chibe-Justice, Trenchard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskiek, Claek, McGlennon, Kays, JJ. 15.

For reversal — None.


author: Per Cueiam.

text:
    Diamond Wall Cement Company, appellant, v. Board of Education of Township of Ridgewood et al., respondents.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, whose opinion is reported in 97 N. J. Eq. 65.

      Messrs. Bilder & Bilder, for the complainants.

      Mr. Cornelius Dor emus and Messrs. Fori & Shipman, for the defendant.
   Per Cueiam.

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

For affirmance — The Chiee-Justice, Trenohaed, Parker, Mintuen, Kalisch, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskiek, Claek, McGlennon, Kays, JJ. 15.

For reversal — None.


text:
    Frederick Fagen, respondent, v. Michael F. Falvey et ux., appellants.
    [Decided May 18th, 1925.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 96 N. J. Eq. 461.

      Mr. D. Truemcm Stackhouse, for the respondent.

      Mr. Patrick PL. Harding, for the appellants.
   Per Curiam.

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

Por affirmance — The Chief-Justice, Trenchard, Parker, Minturn, Kalis oh, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskirk, Clark, McGlennon, Kays, JJ. 15.

For reversal — None.


text:
    Fidelity Union Trust Company et al., respondents, v. Frances Reeves et al., appellants.
    [Decided May 18th, 1925.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, whose opinion is reported in 96 N. J. Eq. 490.

      Mr. Francis Laferty and Mr. Charles G. Titsworth, for the respondents.

      Messrs. Whiting & Moore, for the appellants.
   Per Curiam.

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

For affirmance — The Chief-Justice, Trenchard, Parker, Minturn, Black, Campbell, Lloyd, Gardner, Kays, JJ. 9. ,

For reversal — White, Van Buskirk, Clark, McGlennon, JJ. 4.


text:
    Samuel H. Gillespie, executor, &c., complainant, v. John T. Gillespie et al., defendants.
    [Decided May 18th, 1925.]
    On appeal of the Eirst Presbyterian Church of Asbury Park. On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, whose opinion is reported in 96 N. J. Eq. 501.

      Messrs. Patterson, Rhome & Morgan, for the appellant.

      Messrs. McQarter & English, Messrs. Stamler, Stamler & Eoestler, ilíessrs. Eatzenbach & Hunt, Messrs. Pitney, Ear-din & Skinner, 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 Backes.

For affirmance — The Chief-Justice, Trenci-iard, Parker, Minturn, Kalisci-i, Black, Katzenbach, Campbell, Lloyd, White, Gardner; Van Buskirk, Clark, McGlennon, Kays, JJ. 15.

For reversal — Hone.


author: Pee Curiam.

text:
    Samuel H. Gillespie, executor, &c., complainant, v. John T. Gillespie et al., defendants.
    [Decided May 18th, 1925.]
    On appeal of the Methodist Episcopal Hospital et al. On appeal from a decree of the court of chancery advised by Vice-'Chancellor Backes, whose opinion is reported in 96 N. J. Eq. 501.

      Messrs. Pitney, Hardin S' Slcinner, for the appellant.

      Messrs. McCarter S English,, Messrs, Siamler, Siamler S Koesiler, Messrs. Kaizenbach S Hunt, Messrs. Patterson, Bihome S Morgan, for the respondents.
   Pee Curiam.

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

For affirmance — The Chief-Justice, Trenci-iard, Parker, Minturn, Kalisci-i, Black, Katzenbach, Campbell, Lloyd, White, Gardner, Van Buskirk, Clark, McGlennon, Kays, JJ. 15.

For reversal — None.


text:
    Ferdinand Stines, complainant, v. James D. Carton, executor, &c., defendant.
    [Decided May 18th, 1925.]
    On appeal of William B. White. On appeal from a decree of the court of chancery advised by Yiee-Chancellor Foster, who filed the following opinion:
    “This is an interpleader suit, and the controversy arises s over a fund of $8,000, which the decedent, Charles O’Malley, entrusted to the care of complainant.
    “The money had been paid into court, less the amount of Mr. O’Malley’s funeral expenses, which was paid by complainant therefrom, with the consent of both defendants.
    “The facts established at the hearing are that Mr. O’Malley, who conducted a hotel near Belmar, in Monmouth county, some time in 1920 or 1921, gave complainant $1,000 in cash, to keep for him, and some time in 1922 decedent gave to complainant the further sum of $1,000 in cash, to keep for him.
    “In the spring and summer of 1922, 0’Malle3r was drinking very heavily, and, according to complainant, was almost continuously under the influence of intoxicating liquors, and was quite ill at times, and after June 15th he was seriously m.
    “On June 30th, 1922, he was intoxicated, and had received a draft of his will, and before executing it he told complainant and the defendant White that the priest and others could not wait until he was dead to get his money. He executed the will that night, however, Mr. White and his wife acting as the witnesses, at the request of O’Malley and Father McConnell. This will was duly admitted to probate, and by its terms, after the payment of his debts and funeral expenses, decedent gave to Rev. William J. McConnell, rector of the Church of St. Rose, Belmar, New Jersey, $3,000, for certain specified purposes; to Father McConnell personally he gave $5,000, and the residue of the estate was given to the Church of St. Rose for the use of the parish school. Mr. Carton was appointed the executor, and has duly qualified.
    “On July 1st, the day following the making of the will, O’Malley, while still intoxicated, had the defendant White, in the presence of Stines, write on a blank bank check the following: ‘July 1st, 1922. I will turn over to W. B. White, $8,000.00/100 eight thousand after Charles B. O’Malley’s death dollars,’ and O’Malley had complainant sign this, and it was then delivered to White.
    “After the execution of this paper, complainant, as he states, for his own protection, had prepared and had O’Malley sign a paper reading as follows:
    “ ‘Belmar, N. J., July 1, 1922.
    “ ‘I Charles O’Malley, do hereby request Ferdinand Stines to pay to W. B. White upon the event of my death, the sum of eight thousand dollars [$S,000] belonging- to me and now in the possession of Stines.
    “ ‘In the presence of [Signed] Ciiakles O’Maieey.’ ”
    “After the execution of these papers on July 1st, O’Malley returned with White to the latter’s home in South River, where he had spent the previous night after executing his will, and on July 3d, while White and O’Malley were driving from South River to Belmar, they met Leo J. Coakley, a lawyer of this state, to whom White introduced O’Malley, and the latter told Coakley of the paper Stines had signed on July 1st, and he requested Coakley to prepare a paper for O’Malley to sign, and which was to be held by White; this paper was then prepared by Coakley, and later on that day it was signed by O’Malley in the presence of two witnesses. This paper reads as follows:

      “ ‘July 3d, 1922.
    “ ‘Whereas I am indebted to William B. White of South River for many favors done me and I having- coming- to me from the Belmar Building and Loan the sum of eight thousand dollars, now therefore for the consideration of the sum of one dollar and other good and valuable considerations I hereby assign and transfer unto William B. White the said sum -of eight thousand dollars, transfer to take place upon my death.
    “ ‘The said sum is now in the name of Fled Stines.
    “ ‘Charles O’Malley.
    “ ‘Witnessed by
    “ ‘Edward Cost,
    “ ‘Felix Arnould.’ ”
    “After this paper was executed, O’Malley gave it to White. O’Malley was so ill at this time that he was taken to the hospital almost immediately after signing this paper, and he remained in the hospital until July 10th, when he returned to his hotel at Belmar.
    “After he returned to Belmar, O’Malley had many conversations with complainant about his money. He could not recall anything about the two papers that had been executed on July 1st, and he did not tell Stines.of the paper he had signed on July 3d. He frequently demanded his money from Stines, and Stines refused to give it to him until he returned to Stines the paper Stines had signed on July 1st, and which O’Malley had given to White. O’Malley repeatedly told Stines he would get this paper back from White, but he never did so. Stines had loaned the $8,000 to the Belmar Building and Loan Association, and he gave O’Malley the interest he received from this loan.
    “O’Malley, during the summer of 1922, frequently complained of the lack of money and of the small amount he had on deposit to his credit in hank, and he could not recall having withdrawn and used but a few hundred dollars for expenses while at the hospital. Stines, on investigating the matter, found and told O’Malley that his bank account was overdrawn, and, on an examination of the canceled checks by O’Malley and Stines, it was found that, the overdraft and the shortage in O’Malley bank account was due to two checks O’Malley had drawn and apparently forgotten, one to White for $1,000 and one to Mrs. White for $2,000.
    “Prom a letter written by Mrs. White to O’Malley, in October, 1922, and from the testimony of Stines, it would appear that White and O’Malley were both engaged in the illegal sale of liquor, and that White, at least, was engaged in the business as a 'bootlegger.’ It was also shown that O’Malley and White had been acquaintances or friends for over twenty years, and that they frequently visited each others’ home.
    “Mr. O’Malley died on November 2d, 1922, without relatives, so far as known.
    “Upon his death, demand was made upon complainant by his executor and also by Mr. White for the fund in question, and which practically constitutes his entire estate, and these conflicting demands resulted in this action.
    . “At some of the hearings there was some uncertainty as to the exact nature of the claim made by White to this fund, and counsel for Mr. White finally announced that O’Malley, by the papers mentioned, had created an irrevocable trust of this fund for the benefit of White, and I now find on his brief that counsel for Mr. White states his claim in the following manner:
    “ 'Prom the above facts the defendant White contends—
    '"(1) That none of the papers executed constituted a will or attempt at testamentary disposition.
    '"(2) That the transaction did not constitute a gift inter vivos or a gift causa mortis.

    '"(3) White does contend, however, that on July 1st, 1922, O’Malley imposed a trust upon the said fund of $8,000 for the benefit of White; that this was a perfectly created and completed trust by parol, and evidenced by these paper writings.’
    “Prom the record, and especially from the three papers on which White relies, I am unable to find any evidence of the trust which White claims. The first paper which O’Malley had Stines sign is, by its express terms, nothing more than an acknowledgment by Stines that he had $8,000 of O’Malley’s money which he promised To turn over to White after O’Malley’s death.’ The second paper which Stines had O’Malley sign for his protection, and not for White’s benefit, requests Stines to pay White $8,000, 'upon the event of my [O’Malley’s] death,’ and the third paper drawn by the lawyer, Mr. Coakley, is, by its expressed terms, an assignment from O’Malley to White for a valuable consideration of the money in question, then loaned in the name of Stines to the Belmar Building and Loan Association, the transfer of the fund to take place upon O’Malley’s death.
    “From my consideration of the entire record I have reached the conclusion that O’Malley did not create a trust in the fund in question for the benefit of White. What he did, and what I think the proofs clearly show he attempted ineffectively to do, while under the influence of liquor, and without competent advice, and probably unduly influenced against those who persuaded him to make his will, was to attempt, by these papers, to make a testamentary disposition of this fund without the formalities attendant upon the execution of a will.
    “He was apparently angry at those who urged him to make a will, and he was neither physically nor mentally sober or strong enough to resist these importunities, but as a result of them he harbored a resentment which he attempted to gratify by the papers in question.
    “On his return from the hospital his feelings underwent another change; he turned against White and his wife; he told Stines he owed them nothing, claimed they had been well paid for all they had done for him, and threatened and promised to make White return to him the papers on which White now rests his claim.
    “While it is of course true that no special language need be employed to create a trust such as White now claims, it is equally true that an intention to establish such a trust, and an effort to give effect to such intention, must be shown by a clear preponderance of the proof in order to establish such a trust. As no such proof is present here, a decree will be advised that the fund be paid to the executor of O’Malley’s estate.”

      Mr. George L. Burton, for the appellant.

      Messrs. Durand, Ivins & Carton, for the respondent.
   Pee Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below bj7 Vice-Chancellor Poster.

For affirmance — The Chief-Justice, Trenchard, Min-turn, Kalisoi-i, Black, Katzenba ci-i, Lloyd, White, Gardner, Van Buskirk, Clark, MoGlennon, Kays, JJ. 13.

For reversal — Parker, Campbell, JJ. 2.


author: Walkee, Chafcelloe.

text:
    Louis Vogler, petitioner, v. Mary C. Vogler, defendant.
    [Decided December 2d, 1925.]
    While a decree nisi of divorce (or nullity of marriage) may not be entered mine pro tunc, yet a final decree in a proper case may be so entered.

      On petition for divorce. On' application to enter final decree nunc pro tunc.

      Messrs. Hudspeth & Demarest, for the petitioner.

      Mr. Atwood G. Wolf, for the defendant.
   Walkee, Chafcelloe.

This was a suit for divorce for desertion, sharply litigated. On December 5th, 1916, a decree nisi was entered in favor of the petitioner, which made a final decree due to him on June 6th, 1917, unless appeal were taken or cause shown to the contrary as provided in our Divorce act (P. L. 1907 p. 1ftIf. § 21), as follows : ;

“A decree nisi shall become absolute after the expiration of six months from the entry thereof, unless appealed from or proceedings for review are pending, or the court before the expiration of said period for sufficient cause, upon its own motion, or upon the application of any party, whether interested or not, otherwise orders; and at the expiration of six months such final and absolute decree shall ihen be entered upon application to the court by the petitioner, unless prior to that time cause be shown to the contrary. Appeals shall be taken only from the decree nisi and' not from the final decrees, and shall be taken within six months from the filing of the deerpe nisi.”

No proceedings for review (except an appeal which was not prosecuted) were ever instituted, and no cause shown why the decree nisi should not be made absolute, nor was a final decree ever entered. The facts are these:

On November 27th, 1916, petitioner received from his then' solicitor a letter informing him that a decree nisi had been signed and that a certified copy should be received in the course of a few days, and, when received, petitioner would be notified that he might call at the solicitor’s office and obtain a copy, which he did, and was informed by his then solicitor that he had received a certified copy of the decree nisi, and handed a copy of the same to petitioner. At that time that solicitor informed petitioner that he was then divorced from his wife, but had to wait six months before he could marry again. On June 8th, 1917, petitioner, having become engaged to marry, visited the office of his then solicitor and asked him whether he conlcl then legally marry, whereupon the solicitor informed him that his wife had attempted to hold up his divorce by filing an appeal, but that she was one day late, as she had not filed it until after the six months had elapsed, namely, on the 6th day of June, 1911, and that such appeal did not amount to anything, as it was too late, and that the petitioner could proceed to be married just as soon as he wanted to; that he, the solicitor, would proceed, however, to have the appeal dismissed as not having been filed in time, which he never did. The petitioner did not know what the term nisi meant, but from reading the copy of the decree he supposed that he was divorced from his wife unless sufficient cause should be shown to the court why such decree should not be made absolute within six months from its date, and supposed that his right to remarry was only suspended until the expiration of six months, and honestly believed that when his then solicitor informed him that he could marry again, as the six months had elapsed, notwithstanding the appeal by his wife, which was filed a day late, that he had a perfect right to remarry, and he did so on June 8th, 1911, and has cohabited with his second wife ever since. Erom the time of the trial of the divorce action in 1916 until September, 1925, when she had him arrested for non-support, petitioner had never seen or heard of the wife from whom he obtained the decree nisi. And now, in the cirexxmstances above detailed, he moves for the entry of a final decree herein nunc pro tunc as of the time he was first entitled to it. The files in this case disclose the fact that nothing was done by either side with reference to the appeal, after the filing of the notice thereof, no step having been taken in the appellate court by the filing of a petition of appeal or otherwise.

The petitioner xvas correctly advised by counsel that the appeal was a nullity, having been taken out of time, because then the rights of the successful party to the litigation had become vested. Smith v. Walton, 96 N. J. Eq. 421; see, also, Plahn v. Givernaud, 85 N. J. Eq. 143. There is no provision in our Divorce act which would prevent the entry of a final decree of divorce nunc pro iunc. Although a decree nisi for divorce, or nullity of marriage, cannot be made or entered nunc pro iunc, but must be dated in the body and filed and docketed on the same day and at the same time, to the end that the time provided by the statute (P. L. 1907 p. 474 § 21) for appeal, or showing cause why the decree nisi should not be made absolute after the entry thereof, shall neither be abridged nor abolished. Markowitz v. Markowitz, 94 N. J. Eq. 23.

In Pratt v. Pratt, 157 Mass. 503, a woman obtained a decree nisi in divorce proceedings in that commonwealth. Before the expiration of six months, while living in another state, she wrote her attorney in the divorce proceedings to have the papers of her divorce sent to her at once, and asking if it was necessary for her to appear personally to have the divorce granted, and she received a reply from him stating that the six months would not expire until the next month; that he would then attend to having the decree made absolute, and that it would not be necessary for her to appear personally. The attorney was prevented from attending to the matter by reason of illness. The libellant, supposing that her attorney had attended to the matter, and that her divorce had been made absolute, after the six months had expired, without doing anything more as to her divorce, married again in the other state, in good faith, believing that she had a legal right so to do, and lived with the man whom she had married until she learned that the divorce had not been made absolute, and that the marriage was not valid. And it was held that these facts would warrant a finding that the libellant was not guilty of negligence, and that she honestly believed, and had reason to believe, in the evidence of a fact which, if true, would have made her remarriage lawful. The court observed (at p. 507) that “where a libellant has obtained a decree nisi, and after waiting the time required by law, believing, and having reasonable ground to believe, that he has obtained a decree absolute, being guilty of no negligence, marries again and cohabits with the person he has married, he ought not to be prevented, in our opinion, from having his decree nisi made absolute.” And this holding of the Massachusetts supreme judicial court, I take it, is entirely consonant with the reasoning of our court of errors and appeals in the cases of Robinson v. Robinson, 84 N. J. Eq. 201, and Dolan v. Wagner, 96 N. J. Eq. 298.

It will be noted that the petitioner in the instant case falls clearly within the rule enunciated by the Massachusetts court, which I regard as entirely apposite in the case at bar.

Mr. Bishop, in his work on “Marriage, Divorce and Separation” (vol. 2 § 687), says: “There may be a nunc pro tunc judgment when the ease falls within the principles on which such judgments are allowed in other suits.” Citing Mead v. Mead, 1 Mo. App. 247, 254; Webber v. Webber, 83 N. C. 280. The court in the Mead Case said: “Since this opinion was written we have learned that Mr. Mead has died. He was alive, however, when, the case was argued and submitted. Under these circumstances the judgment will be entered as of the day on which it was taken under advisement, which was January 28th, 1876. Such was the practice of the supreme court in the case of Central Savings Bank v. Shine, 48 Mo. 456, following the ancient practice in England as laid down in Cumber v. Wane, 1 Stra. 426.” And the court in the Webber Case said: “It is suggested that the action for a dissolution of the marriage tie, the end'and object of which are consummated by death, rendering a judgment needless, does not fall under the control of a fiction adopted for other and different purposes. While the suggestion is not without force, we can find no legal ground for its exemption from the operation of a principle applicable to all other actions.”

There is nothing in Dunham v. Dunham, 82 N. J. Eq. 395, which militates against the entry of a final decree for divorce mine pro tunc. The Dunham Case only decided that a pending divorce abates upon the death of either party without surviving interest in anyone, and that a decree nisi of divorce may not be made absolute by a final decree after the death of one or the other of the parties, and which could not have been entered during the lifetime of both. Of course, it could not, because the surviving party was not entitled to the decree in the lifetime of the other one. -Not so in the case at bar, for here the petitioner was entitled to the divorce at and at all times on or after the 6th day of June, 1917, both parties being alive, as they still are. Petitioner is not obliged to apply for a final decree on the very day it is due, nor is there any time limit, statutory or otherwise, after which he may not obtain it. Whether or not petitioner may have it nunc pro iunc, after the lapse of years, as in this case, is a matter for determination on the particular facts of every given ease.

Note. — The chancellor has directed that the opinion in. this case, filed as a memorandum in 1917, be now printed as an opinion in connection with, and immediately following, that in Vogler v. Vogler, supra. — Rep.

Let a final decree of divorce be entered in this case nunc pro tunc as of June 6th, 1917, on which date the petitioner was, and has at all times since been, entitled to' have the decree nisi made absolute.