author: Collins, J. •

text:
    Fannie E. Lacey et al., appellants, v. Harriet M. Dobbs, respondent.
    [Filed November 15th, 1901.]
    The supplement of March 12th, 1851, to “An act concerning wills” (Gen. Stat. p. 8760) enacts “that all wills and testaments * * * shall be in writing, and shall be signed by the testator, which signature shall be made by the testator, or the making thereof acknowledged by him, and such writing declared to be his last will, in presence of two witnesses present at the same time, who shall subscribe their names thereto as witnesses in the presence of the testator.”—Held, that it is essential to validity that everything required to be done by the testator shall precede in point of time the subscription of the witnesses.
    On appeal from' a decree of the prerogative court affirming the probate, in Essex county orphans court, of the will of Mary Ann Caldwell. The opinion M the ordinary is reported in 16 Dick. Gh. Rep. 575.

      ■ Mr. Addison Ely, and Mr. William II. Ely (of the New York bar), for the appellants.

      Mr. Alexander Grant and Mr. Harry F. Barrett, for the respondent.
   The opinion of the court was delivered by

Collins, J. •

The orphans court of Essex county admitted to probate as the last will and testament of Mary Ann Caldwell, deceased, a paper-writing, her signature to which was proved to have been made after the subscription of the putative testamentary witnesses, although on the same occasion and while they were still present.

Upon affirmance in the prerogative court, by the decree that is the subject of the present appeal, the learned chancellor, sitting as ordinary, was largely influenced, if not controlled, by a deliverance in that court in 1858, in the ease of Mundy v. Mundy, 2 McCart. 290, to the effect that the order of signing was. not material to the validity of a will. The question has been directly involved in no other reported case in this state.

The first section of the supplement, approved March 12th, 1851, to “An act concerning wills” (Gen.-Siat. p. 3760), upon which all valid wills must rest, reads as follows:

“All wills and testaments of persons dying after this act shall take effect, or who may have died since the fourth day of July, in the year of our Lord eighteen hundred and fifty, shall be in writing, and shall be signed by the testator, which signature shall be made by the testator, or the making thereof acknowledged by him, and such writing declared to be his last will in presence, of two witnesses present at the same time, who shall subscribe their names thereto as witnesses in the presence of the testator; and all wills and testaments of persons dying since the day above mentioned, made in manner prescribed, by any person competent by law to make such will, shall be sufficient to devise,'pass and bequeath all estates and property, real or personal, and all rights of any kind, and to appoint a guardian or guardians to any child of the testator during infancy.”

The grammatical sense of this enactment is that the entire testamentary act is to be attested by two witnesses, by the subscription of their names. They are to subscribe “as witnesses”—■ i. e., as those who know (Saxon witan) what was said and done. They cannot know before the fact. But the apparent meaning of words must yield to authoritative judicial construction; and a judgment of the prerogative court, of long standing, although not binding in this court, should not lightly be overruled. Hence some elaboration seems proper in vindicating a determination contrary to the deliverance mentioned—the more so because of confusing adjudications elsewhere.

It will be found upon examination of the case cited that such deliverance was an ill-considered make-weight for a decision previously placed on a sound basis with which it was really inconsistent. The decree was mainly and rightly vested on the evidential force of the attestation signed by the testamentary witnesses. It was said: “The attestation clause, with the signatures of the witnesses, is prima facie evidence of the facts stated in it. It may be overcome by the .witnesses themselves, or by other witnesses, or by facts and circumstances irreconcilable with its verity. If there is no attestation clause the case is different. In the one case there must be affirmative proof of publication and of the other requisites; in the other there must be affirmative proof of the want of those requirements.” In Allaire v. Allaire, 8 Vr. 312, the present chief-justice, speaking for the supreme court, said that the true principle had been so declared with exactness; and in Allaire v. Allaire, 10 Vr. 113, this court held that the legal rule was thus properly settled. But not content with this firm ground of decision, the learned ordinary, evidently without scrutiny of the statute, and without that careful consideration almost always displayed in his judicial utterances, went on thus to support it: “Mrs. Manning at one time says that she thinks her husband [one of the testamentary witnesses] signed before the testator. If the fact was clearly proved, it would not affect the validity of the will. The. particular order of the several requisites to tlie valid execution of a testament is not at all material. Vaughan v. Burford, 3 Bradf. Surr. 78.” This is most unsatisfactory. The order of the requisites to the execution of a will is not material. The testator may declare the “writing” to be his will before or after or contemporaneously with the making or acknowledging of the signature, but attestation is a different matter. Of course the word “execution” was used—though inaptly—to include the subscription of the witnesses, and the New York surrogate’s decision, on which too hasty reliance was placed, was to the effect stated, upon a New York statute like our own. That decision has since been repudiated by the court of appeals, and it is strange that so acute a reasoner as the writer of the opinion in Mundy v. Mundy should not have seen the inconsistency of antecedent subscription of witnesses with his declared rule that “the attestation clause, with the signature of witnesses, is prima facie evidence of the facts stated in it.” One of those facts must be the making or acknowledging of the testator’s signature. The attestation clause, he had said, can only be overcome by proof irreconcilable with its verity. When signed, therefore, in order to have such a probative force it must be true. The rule necessarily, interprets the statute.

The rationale of the rule was very clearly stated by Vice-Ordinary Van Fleet in Farley v. Farley, 5 Dick. Ch. Rep. 434, 439. Pie said that an attestation clause is “for the very purpose of preserving in permanent form a record of the facts attending the execution of the will, so that, in case of the failure of memory, or other casualty, they may still be proved. It is for this reason that the courts have uniformly held that, on proof of the authenticity of the signatures of the subscribing witnesses, the facts stated in the attestation clause must be considered and accepted as true until it is shown by affirmative proof that they are not.” The late chancellor, sitting as ordinary, in Darnell v. Buzby, 5 Dick. Ch. Rep. 725, 727, tersely said: “The attestation clause recites particulars which assert complete obedience to all the requirements of the statute, and the signature of the witnesses being admitted, that clause makes prima facie proof of all the facts stated in it.”

If it be urged, as indeed it has been in some of the cases, that the legal presumption .raised by the attestation clause is an arbitrary one, because the witness first 'subscribing cannot, in the nature of things, attest that the other subscribes in the testator’s presence, the answer is that, in this regard, all that is required by the statute is that each witness shall so subscribe. The attestation is not joint, but spveral, and the witness subscribing does not attest the 'signature, but only the presence of his colleague.

To the argument that, as like effect is given to an attestation clause by those courts that hold the order of signing to be immaterial, it is at least disputable that such rule of evidence is inconsistent with that laxity, it is sufficient to reply that in any ease all that need be atttested is that for which the particular statute involved requires the presence of witnesses, and that no court has yet held that attestation can precede the testator’s signature where the statute construed requires, in terms, as does ours, the making or acknowledging of such signature to be in the presence of the testamentary witnesses.

Before proceeding to consider direct adjudications on the question sub judice, it will be necessary to present the state of the law on the subject of wills at the time of the enactment of our present statute.

Testaments of personalty were, in England, until the reign of Victoria, left to the ecclesiastical courts unaffected by legislation. Devises of lands were sub temp. Hen. VIII. required, by .act of parliament, to be in writing, but no formalities or attestation were prescribed. The statute of frauds of %9 Gar. II. c. S § 5, provided that such devises

•“shall be in writing and signed by the party so devising the same, or by some other person in his presence and by his express directions, and shall be attested and subscribed, in the presence of the said devisor, by three or four credible witnesses, or else they shall be utterly void and of no effect.”

This statute inherently prevailed or was, in substance, enacted in the American colonies and the states of the union, many of whom extended its provisions to testaments of personalty. In New Jersey a change, in phraseology at least, was made. In 1713-1714 it was enacted that

“all wills and testaments which hereafter shall be made in writing, signed and published by the testator in presence of three subscribing witnesses and regularly proved, &c., * * shall be deemed sufficient to devise lands.” Allin. L. p. 27.

This statute survived the Revolution. In Compton v. Mitton, 7 Halst. 70, decided in 1827, Chief-Justice Ewing called attention to the difference between it and the English statute of frauds. He said: “Under both, wills are to be in writing, to be signed and have at least three witnesses. Our act requires the will to be published, which is not expressly directed by the other. By the English statute the will is to be signed. By our act the will is to be signed and published in the presence of witnesses. By the former the witnesses are to attest and subscribe in the presence of the devisor. By the latter they are not, in terms, required so to do, although it is our usual and commendable custom.”

Like other provisions of the statute of frauds, its fifth section was very loosely construed, and to remove the consequent uncertainty, as well as to bring testaments of personalty into uniformity with devises of land, “An act for the amendment of the laws with respect to wills” was passed by parliament, talcing effect on July 3d, 1837. 1 Viet. c. 26. By section 9 it was enacted that

“no will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned (that is to say) it shall be signed at the foot or end thereof by the testator or by some other person in his presence, and by his direction, and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary-”

This statute soon came before the ecclesiastical courts, and in 1842 was carefully considered by Sir Herbert Jenner-Fust in the prerogative court of Canterbury. Moore v. King, 3 Curt. 243. The great importance of the case as a leading one-was perceived and expressed—the previous interpretations, though of the same tenor, having been ex parte. Re Goods of Olding, 2 Curt. 865; Re Goods of Byrd, 3 Curt. 117. These were the facts: The testator signed the draft of his will in the presence of his sister, who subscribed her name as a witness. On the next day he acknowledged his signature, in her presence and in the presence of another person, to whom the sister pointed out her signature, and who then subscribed as a witness. The will was held invalid for lack of conformity to the statute. It was observed that the new legislation was amendatory, and, in fact, had grown out of the loose construction that had been given to the statute of frauds, and the judge said: “I cleai’ly find that the object of this act is to remove every possible doubt, thereby taking away all latitude and discretion in its interpretation.” He declared his opinion that “the act is not complied with unless both witnesses shall attest and subscribe after the testator’s signature shall have been made or acknowledged to them when both are actually present at the same time.” He pointed out that the alternative of acknowledgment of the testator’s signature, expressly given by the act, precludes any implication that the witnesses might acknowledge their signatures previously made. The same learned judge reaffirmed Ms opinion the next year, in Cooper v. Bockett, 3 Curt. 648, in a case where the testator signed on the same occasion as the witnesses, but after they had signed.

No English court has ever held that the statute of frauds permitted subscription of testamentary witnesses in advance of the testator’s signature. Wren parliament passed the amendatory act such an anomaly had never, in any adjudged case, been presented or suggested. But in this country, before the New Jersey legislature acted finally in the premises, the subject had been judicially considered. In Kentucky, the statute of 1797 required that wills should be

“signed by the testator or testatrix or by some other person in his or her presence and by his or her direction; and, moreover, if not wholly written by himself or herself, be attested by two or more competent witnesses subscribing their names in his or her presence.”

A will was drawn for a testator, and 'while still- unsigned by Mm, was subscribed in his presence by two persons as if witnesses. Some hours later he signed it in their presence and in the presence of a third witness, who subscribed it, the first two, at the same time, acknowledging their subscription. In 1840 this will was established as valid by the supreme court of the state. Swift v. Wiley, 1 B. Mon. 114. A distinction was drawn between attestation and subscription. The judge said that subscription was required “for the sole purpose of identification.”' This was a misconception, for attestation of a will involves subscription, and there is a better argument in favor of the decision which I will later suggest. Under a statute practically identical- with that of Kentucky, the supreme court of appeals of Virginia in 1849 hold, obiter, that the order of signing as between testator and witnesses was not material. Rosser v. Franklin, 6 Gratt. 1. The signature of an illiterate testatrix had been written for her before the witnesses subscribed and the occasion of the dictum was her subsequently making her mark.

It will be observed that neither in the English statute of frauds nor in these American derivatives is it required that the testator’s signature shall be made or acknowledged in the presence of the witnesses, and that under each statute it is the will that is the written disposition of the testator’s property—not its due execution, that, in terms, is to be attested. It is consistent with such legislation that the writing shall be declared to be the will of the testator, although his signature be not shown to the witnesses; and if, when probate is moved or the will in anywise comes in controversy, the true signature of the testator appears upon the attested document it may be fairly arguable there has been compliance with the law. In the old case of Peate v. Ougly, Com. 197, a jury was permitted to inquire of the due execution of a will which was so folded when the witnesses subscribed it that they could not know whether ■or not it was signed, and a verdict for the will was sustained. This would have been impossible under 1 Viol. c. %6, and the precise case did, in fact, in 1844, arise under that statute. Hudson v. Parker, 1 Rob. Eccl. 14 The proof was that the witnesses had subscribed, in presence of an ostensible testator and each ■other, a paper on which the writing was concealed. The testator .said it was his will, but did not show any signature. After his death his proper signature appeared at the end of the paper. Dr. Lushington, in an elaborate opinion distinguishing the Victorian 'statute from the statute of frauds, held the paper in-' valid as a will.

In this situation and with the same purposes that moved the British parliament in 1837, the New Jersey legislature proceeded to deal with the general subject of wills. By an act approved March 7th, 1850 (P. L. of 1850 p. ¡880), it was provided that

“all last wills ancl testaments of persons dying after this act shall take effect shall be in writing and shall be signed or acknowledged to have been signed by the testator and declared to be his or her last will in the presence of at least two credible witnesses, present at the same time, who shall subscribe their names thereto as witnesses in the presence of the testator.”

A year later the statute first above quoted and still extant was substituted. The main purpose of the change was to more ■clearly express the requirement that the signature of the testator must be made or acknowledged by him in the presence of the witnesses, and to declare in terms that the provisions of the act should extend to personal as well as real estate. The substantial identity of much of the lánguage used with that of the English statute of 1837 makes it indisputable that the one was the model for the other. Ours,is the more stringent, if thefe be any difference in the forms of expression. I. will not say that the interpretation of the English courts of several years’ standing at the time of New Jersey’s adoption of the English act should be read into our statute; it is enough to say ■that such interpretation is highly persuasive. The previous rendition of the Kentucky and Virginia decisions furnishes another argument in that direction. It should not be lost sight of that since 1714- our law had required wills devising lairds to be signed as well as published in presence of subscribing witnesses. In that respect the new statute ivas an enlargement, for it permitted a signature previously made to be acknowledged by the testator.

It was suggested by the learned ordinary in’ the court below, in this case, that there may be a difference in the effect of th'e two amendatory statutes, in that the English one does, while ours does not, require the witnesses lo attest as well as to subscribe the will. It being expressly provided in the English act that no form of attestation shall be necessary, it is evident that what is meant is that the witnesses shall subscribe “as witnesses,” which is the concise direction of our act, accordant with the usual definition by lexicographers of the word “attest” as applied to writings.

All* the later English cases approve the view of Sir -Herbert Jenner-Eust. It is unnecessary to- cite them. -The question finally reached the house of lords in 1861, and was there definitely settled in Hindmarsh v. Charlton, 8 H. L. Cos. 160, affirming Sir Creswell Creswell, in the new court of probate and divorce. Charlton v. Hindmarsh, 1 Swab. & T. 433. Briefly stated, the case was this:; Hindmarsh produced to Dr. Wilson, a sufgeon attending him in illness, a paper-writing, which he-then signed and said was his will, and asked the surgeon to' subscribe as a witness. Dr. Wilson wrote “witness to the above will and testament, and signature,” and signed his name, inadvertently omitting to cross a capital F, so that it stood as a T. Later in the day Dr. White, the physician in regular attendance, called, and there was a medical consultation. Dr. Wilson had previously told Hindmarsh that there ought to be another witness to the will, and, after the consultation, both doctors went into the sick-room, taking it with them. Hindmarsh then acknowledged his signature and Dr. White subscribed his name as a witness. Dr. Wilson, noticing that the F in his name lacked a cross, supplied one, and, at Dr. White’s suggestion, added the date. It was held that, in order to comply with the statute, “the signature or acknowledgment of the testator must be made in the presence of two witnesses, present at the time, and they must, after he has so signed, or so acknowledged, his signature, subscribe the will in his presence;” and that a correction of an error in a previous writing of the name of a witness, or his acknowledgment of his signature, or the adding of a date, will not be sufficient. The lord-chancellor (Campbell) and Lords Granworth and Chelmsford gave concurring opinions, each expressing regret that the stability of the law required the court to deny effect to a meritorious disposition of property in a case where there was a plain, but abortive, attempt to comply therewith.

The American decisions defending subscription by testamentary witnesses in advance of a signing by or for the testator that have been rendered since the enactment of the New Jersey statute of 1851 rest on legislation much less restrictive than that. In Miller v. McNeill, 35 Pa. St. 217, often cited, what was said on the subject was entirely gratuitous, for, under the Pennsylvania statutes, such subscription is supererogatory. Hight v. Wilson, 1 Dall. 94; Rohrer v. Stehman, 1 Watts 463; Frew v. Clarke, 80 Pa. St. 170, 178. The act requires only that

“every will shall be in writing, and, unless the person making the same shall be prevented by the extremity of his last sickness, shall be signed by him at the end thereof or by some person in his presence and by his express direction, arid in all cases shall be proved by the oaths or affirmations of two or more competent witnesses; and otherwise shall be of no effect.”

Of course, persons actually witnessing the testamentary act are not debarred from proving it by having prematurely subscribed their names to the will. In the case cited, Woodward, J., said: “Our statute contemplates, undoubtedly, a signing by testator, and then a signing by witnesses in attestation of that signature, when witnesses subscribe at all; but where a transaction consists of several parts, all of which occur at the same moment, and in the same presence, are we required to undo it because they did not occur in the orderly succession which the law contemplates ? The execution and attestation of the will were concurrent, or rather simultaneous acts and we will not regard the question of who held the pen first, the testator or his witnesses.” I have quoted this dictum because it carries its own refutation and makes strongly for the contrary decision where a statute not only “contemplates,” but directs an orderly succession of acts.

The other cases are four in number, viz., O’Brien v. Galagher, 25 Conn. 229; Moale v. Cutting, 59 Md. 510; Kaufman v. Caughman, 49 So. Car. 159, and Gibson v. Nelson, 181 Ill. 122.

Except as to Illinois, all the statutes involved closely follow the language of the English statute of frauds; in those of Connecticut and South Carolina there being the additional requirement that the witnesses shall subscribe in the presence of each other. These cases are not helpful in interpreting our statute, and indeed, in the South Carolina case, the learned judge rests the point’s decision on the elasticity of the statutes construed. After noticing that, under 1 Viet. c. 26, the English courts hold that the signature, or acknowledgment of signature, of the testator must precede subscription by the witnesses, he justifies that interpretation of the act, although he thinks it a strict one, on the ground that it is such signature that the witnesses are to .attest. He says that the English act clearly places more stress than that of South Carolina on the mere manner of executing wills,’and he concludes: “When the-statute expressly or by necessary inference requires such formalities, then nothing is left but to enforce it; but the court will not stress formalities which the statute does not.” In Maryland, also, the court, in .an earlier decision, declaring that, in that state, testamentary-witnesses need not subscribe the will in' presence of- each other,' had called attention to the fact of the essential differences between the statute of frauds (of which it was said the Maryland act was a copy) and the Victorian statute, as pointed out by Sir Herbert Jenner-Eust.

The Illinois statute is unique. It enacts that

“all wills, testaments and codicils * * * shall be reduced to writing and signed by the testator or testatrix or by some person in his or her presence, and by his or her direction and attested in the presence of the testator or testatrix, by two or more credible witnesses, two of whom declaring on oath or affirmation, before the county court of the proper county, that they were present and saw the testator or testatrix sign the said will, testament or codicil in their presence, or acknowledged the same to be his or her act and deed, and that they believed the testator or testatrix to be of sound mind and memory at the time of signing or acknowledging the same, shall be sufficient proof of the execution of such will, testament or codicil to admit the same to record; provided, that no proof .of fraud,” &e.

Plainly it is the will, not the signature or its acknowledgment, that is to be attested, and the supreme court of the state, in Hobart v. Hobart, 154 Ill. 610, has held that where a testator does not sign in presence of the witnesses it is not necessary for him to acknowledge in their presence a signature previously made, the words “the same,” twice occurring in the statute, in the opinion of the court, referring back to “said will;” and while, in Gibson v. Nelson, ubi supra, the same court, solely on the authority of O’Brien v. Galagher, Rosser v. Franklin and Miller v. McNeil, ubi supra, did hold the order of 'signing immaterial, it indulged in reasoning that destroyed the force of its decision—if the statute requires attestation of signature—by declaring that “undoubtedly the proper order is for the testator to sign first, for after the witnesses had signed, he might never sign, or might sign on some other occasion, or out of their presence, which would not be a compliance with the statute.”

I do not concede that the American cases were rightly decided. I very much doubt if the English courts would have so construed, their basic legislation. In Peate v. Ougly, ubi supra, the verdict was justified only on the assumption that the jury found that-there was execution before attestation. In Windham v. Chetwynd, 1 Burr. 414, 421, Lord Mansfield seems to imply such a-necessity, while in Roberts v. Phillips, 4 El. & B. 450, 459, Campbell (then lord chief-justice) assumes it in upholding as valid a subscription by the'witnesses at a place other than the foot of a will made in 1828. He says: “The mere requisition that the will shall be subscribed by the witnesses we think is complied with by the witnesses who saw it executed by the testator immediately signing their names on any part of it, at his request, with the intention of attesting it.” In this country, the courts of five states have interpreted enactments copied from the statute of frauds as requiring signature by or for the testator before there can be subscription, in attestation, by the witnesses. In North Carolina this occurred in 1841 (Ragland v. Huntingdon, 1 Ired. L. 561); followed in 1854 (In re Cox’s Will, 1 Jones L. 321); but the first adequate treatment of the subject was’in 1865, by Gray, J., in the Massachusetts supreme court, in Chase v. Kittredge, 11 Allen 49. With a wealth of erudition and-argument he demonstrated, both on authority and principle, that attestation cannot precede execution of a will. The Massachusetts statute, enacted in 1836, as quoted in the report, was as follows:

“No will (excepting nuncupative wills) shall be effectual to pass any estate, whether real or personal nor to charge or in any way affect the same, unless it be in writing, and signed by the testator, or by some person in his presence and by his express direction, and attested and subscribed, in the presence of the testator, by three or more competent witnesses.”

On the point in question the learned judge saw no difference between the statutes of Charles and Victoria, and he accepts the English decision culminating in Hindmarsh v. Charlton, ubi supra, as authoritative and coincident with the reason of the ease. He assumes indeed, as did.the Kentucky court, that attestation and subscription are separate acts, but only to insist the more strongly that subscription by the witnesses, which he says is “in proof of” their attestation, must be the final act in the series essential to a valid will. No judge differing in opinion has attempted to answer the argument' of Judge Gray, though several have ignored the decision as authoritative except where, as in the ease decided, a necessary witness had subscribed the will in the absence of tbe testator. In a very recent decision the supreme court of Massachusetts has adopted Judge Gray’s opinion in a case directly in point, and, as compactly stated in the head-note, has held that "witnesses to a will must sign after the testator has signed.” Marshall v. Mason, 176 Mass. 216 (1900). Chase v. Kittredge was approved and followed, in 1867, in Indiana, where Chief-Justice Elliott says that the statute is substantially the same as 29 Car. II. c. 3 § 5, except that the English act related only to devises and required three or four, instead of two or more, subscribing witnesses. Reed v. Watson, 27 Ind. 443. In Georgia, in 1869, it was held that, under a like statute, subscription of witnesses could not be vivified by acknowledgment after a signing by the testator on the following day (Duffie v. Corridon, 40 Ga. 122), and in 1891 it was directly held, in an opinion by Chief-Justice Blecldy, that "the witnesses to a will must subscribe their names as witnesses after the will is signed by the testator—there being nothing to attest until his signature has been annexed. It makes no difference that the signing and attestation are each a part of one and the same transaction.” Brooks v. Woodson, 87 Ga. 379. A concise, but comprehensive, note by the reporter classifies the decisions on the general subject, including some that are merely cognate to the questions involved. The annotation to this case, as reported in 14 L. R. A. 160, may also be consulted with profit. The fifth state is Texas, where the ruling, though postulated for a decision of the tenor of Roberts v. Phillips, ubi supra, is positive and unequivocal. Fowler v. Stagner, 55 Tex. 393.

It appears, therefore, that even under statutes not, in terms, requiring a testator’s signature, but only his declared written will, to be attested, very weighty judicial opinion repudiates the idea that there can be attestation before signature. In no case has it been held that, where there is that requirement, subscription of witness can precede such signature. The only state having that statutory requirement, the courts of which have had occasion directly to deal with it, is the State of New York. There the statute, since January 1st, 1830, has reaxl as follows:

‘/Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner: (1) It shall be subscribed by the testator at the end of the will. (2) Such subscription shall be made by the testator, in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made to each of the attesting witnesses. (3) The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament, and (4) there shall be at least two attesting witnesses, each of whom shall sign his name as a witness at the end of the will, at the request of the testator.” 2 Rev. Stdt. p. 68 § 40-

In construing this statute, in Vaughan v. Burford, ubi supra, and other decisions, Surrogate Bradford went astray. The supreme court, following him, established a will signed by the witnesses before subscription by the, testator, but on the same occasion. The judgment was reversed in 1868 by the unanimous voice of the court of appeals, then_ exceptionally strong. The reasoning of the opinion of Woodruff, J., is so cogent, yet simple, that I will quote it. After showing the substantial identity of the New York statute with section 9 of I Viet. c. 26, and citing many of the English decisions interpreting that act, he proceeds:

“Our statute on this precise point reads: ‘There shall be at least two attesting witnesses, each of whom shall sign his name as a witness at the end of the will at the request of the testator.’ They are, in and by this act of signing their names, to attest, not only the signing, or acknowledgment of signing, of the testator, but his contemporaneous declaration that it is his will. Their signatures do not attest the signing by the testator if they are placed there before the will is signed by him. Eor some period, longer or shorter, as the case may be, those signatures attest no execution—they certify what is not true—when and in what moment do they begin to operate as a compliance with the statute? The only reply that can be given is, when the testator signs his name. This is a dangerous construction of the statute. May the testator keep these signatures in his possession one hour, one week or one jrear, and then add his signature? Certainly not, unless he summon the same persons to see him sign or hear his-' acknowledgment thereof. But suppose he adds his signature and dies, what then becomes of the presumption of due execution, arising from the- apparent 'regularity and the due form of the attestation clause? Once let it be settled that witnesses may sign before the testator and all presumption of due execution, when witnesses are dead or beyond reach, ceases. If it be said that witnesses will not sign,' and so leave their names in the possession of a testator; to suppose they would, is to impeach their honesty, and it is the presumption of men’s truth and honesty which makes regularity and formal attestation prima facie evidence of due execution, I do not think this a sufficient answer. The statute contemplates acts, each of which is serious and important. Execution and the attestation thereof bear a plain relation to each other in point of time, in the good sense and common apprehension of everyone, and the statute prescribing the requisite formalities to a valid execution and authentication plainly contemplates that the acts of the witnesses shall attest the signing and declaration of the testator as a .fact accomplished. I was at first inclined to think that if the whole was done at the same interview, the attestation by the signing of the witnesses might be done’ in any part of it, without regard to the order of. events, as above suggested, the acts of the testator may be; but, upon further reflection, I am satisfied that the view taken of the subject of the ecclesiastical court in England best conforms to the language and intent of the statute. The signing or acknowledgment by the testator and his' declaration that the instrument is his last will and testament are, in the statute, made contemporaneous, and neither must necessarily precede the other, and yet, in practice, this must be construed to mean on the same occasion, each as part of the same transaction, and not requiring that the words of declaration should actually accompany the movement of the pen in signing, or be actually embraced in the terms of acknowledgment of such signing. Practically which utterance is first is of no possible importance. The attestation by witnesses is of a past transaction—it is so in its'nature, and so in the ordering, and, I think, the meaning of the statute.- This distinction, if it served no useful purpose, if. the contrary was liable to no danger,-, nor. led-to any abuse, might be deemed a too strict adherence to the ¡literal interpretation-of the-law. But reásons I have suggested already, I think,. show that a strict adherence to the statute is demanded. Upon the ground that, according to the testimony as it appears in the case before us, the witnesses signed before the testator,' the judgment of the supreme court should be reversed.”

The doctrine of this case was reaffirmed in 1876, in the case of Sisters of Charity v. Kelly, 67 N. Y. 409, Folger, J., saying: “It is clearly proven that the witnesses to the instrument saw up, act of signing it by the deceased until after they had signed their own names to it. It is the law of this state that a Subscription of a will by the testator after the witnesses have signed their names to it is not a due execution of it by him.”

It is quite plain that if the true interpretation of our statute is that the witnesses are to attest, by their subscription, the testator’s signature, or acknowledgment of signature, an instant of precedence on their part will render that impossible. There is no force in the argument that, in ease of an uninterrupted transaction, the orderly course of procedure is not material. The case is not one of a rule that may be relaxed, but one of interpretation of language which, in .the nature of things, must be rigid. Once it is determined what the words of a statute mean, théy must, under all circumstances, have that meaning. It is not permissible to hold that “follow” can ever mean “precede.” Be7 sides, such a judicial modification of the statute—for that it must be—would be unsafe. Witnesses subscribing a will, on the faith that the testator will immediately sign it, can retain no dominion over the paper, and can in no way recall their act or advertise its abortion if the testator fails on his part. Protection, as well of the witnesses as of the testator, demands that there shall be a signature before attestation. Argument based on a loose practice with other than testamentary writings is valueless, for their validity does not depend on due attestation.

I conclude that, under our statute,’it-is essential to validity that everything required to be done by the testator shall precede, in point of time, the subscription of testamentary witnesses.

T shall therefore in’ this case vote for reversal and for the direction of decree denying probate to the paper-writing pro: pounded as tire will of Mary Ann Caldwell. . •

For reversal—Van Syckel, Dixon, Garrison, Gummere, Collins, Garretson, Hendrickson, Vredenburgi-i, Yoori-iees, Vroom-—10.

For affirmance—Bogert, Krueger, Adams—3.


source: Caselaw Access Project

author: Adams, J.

license: Public Domain

text:
    In the matter of the alleged lunacy of James L. Davenport.
    [Filed November 15th, 1901.]
    The testimony taken pursuant to a commission in lunacy was contradictory. There was evidence which, if credited, justified the conclusion that lunacy existed. Xet, upon the whole proof, there was a reasonable doubt of the correctness of this conclusion. The jury had the advantage of a personal examination of the alleged lunatic. The inquisition found that lunacy existed.—Held, (1) that an application to set aside the inquisition on the ground that it was against the weight of evidence was properly denied; (2) that the alleged lunatic was entitled to a traverse of the inquisition if he intelligently desired to have it; (3-) that it was for the chancellor to determine, by a private examination of the alleged lunatic, conducted either by himself or by a master as his deputy, whether he had such intelligent desire; (4) that it was for the chancellor to initiate this inquiry; that the refusal of counsel for the alleged lunatic to apply for the appointment of a master was not a waiver of his client’s right to a traverse, and that an order treating such refusal as a waiver was erroneous.
    On appeal by James L. Davenport from a decree denying an application to set aside an inquisition of lunacy, or for leave to traverse the inquisition, or to have an issue to try the fact of his alleged lunacy and confirming the proceedings and inquisition. The conclusions of the chancellor are as follows:
    Counsel first asks that the inquisition be set aside on the grounds of various alleged irregularities and omissions appearing in or disclosed by the affidavits taken on this rule.
    None of the irregularities and omissions which is made to appear are considered to have tended in the least degree to prejudice the alleged lunatic in his defence of his capacity. The inquisition should not be .disturbed on this ground.

      It is next insisted that the finding of the jury that Davenport was of unsound mind is not supported by the evidence, but is opposed by a great weight of evidence. It seems that if this ground of objection exists, the inquisition may be set aside. In re Lawrence, 1 Stew. Eq. S81.

    There was evidence, which, if credited, justifies the finding. There was much contradictory evidence. The jury also had the advantage of a personal examination of the alleged lunatic. What took place at that examination has not been disclosed on this order. But the fact that the jury had examined him, and thereafter rendered a verdict upon that evidence, is deemed to preclude the setting aside of the inquisition upon that ground.
    In view of the possibility of the above conclusion being reached, the alleged .lunatic further asked, by his petition, that he might be allowed to traverse the inquisition, or that an issue as to his lunacy might be awarded. Such an application is addressed to the discretion of the court, and should be granted, if, upon the whole evidence, a reasonable doubt as to the correctness of the evidence is disclosed. Van Auken’s Case, 2 Stock. 187; James’ Case, 9 Stew. Eq. 517; De Hart v. Qondit, 6 Dick. Ch. Rep. 611. The evidence has been examined with care, and the result reached is that a reasonable doubt does exist as to the finding of the jury.
    This will justify and require the granting of leave to traverse, if it appear satisfactorily to the court that the person found by the inquisition to be of unsound mind intelligently asks and actually desires such leave. The practice of this court in such cases is to direct the petitioner to be brought before the chancellor for a personal examination, if that is practicable. In this ease, the distant residence and the age and infirmities of the petitioner will, no doubt, render impossible his personal appearance before the chancellor. Under these circumstances, the practice is to have him examined by some discreet master of the court, who will report upon his ability to understand and desire a further test. Van Auken’s Case, supra; Lindsley’s Case, 1 Dick. Oh. Rep. 858.

    If- counsel will apply and arrange for an examination by a master, one will be designated.

      Mr. William L. McGue and Mr. George T. Werts, for James L. Davenport, appellant.

      Mr. Richard Fitzherbert and Mr. Willard W. Gutter, for the respondents.
   The opinion of the court was delivered by

Adams, J.

A commission, in the nature of a writ de lunático inquirendo, issued out of the court of chancery to inquire of the lunacy of James L- Davenport. The commission was executed, and an inquisition was returned finding that said James L. Davenport, at the time of taking the inquisition, was a lunatic. Thereupon counsel for the alleged lunatic obtained an order to show cause why the inquisition of lunacy should not be set aside, or why said Davenport should not have leave to traverse the inquisition, or have an issue to try the fact of his alleged lunacy. Dpon the return of the order to show cause the counsel for the alleged lunatic submitted to the chancellor several propositions.

In the first place, counsel for Mr. Davenport asked that the inquisition be set aside, on the ground of alleged irregularities or omissions appearing in or disclosed by the affidavits taken on the order to show cause. The chancellor refused to disturb the inquisition on this ground. On the hearing of the appeal this point was abandoned.

In the second place, counsel for Mr. Davenport insisted that the' finding of the jury that Mr. Davenport was of unsound mind is opposed to the weight of the evidence. The chancellor refused to set the inquisition aside on this ground, saying:

“There was evidence which, if credited, justifies the finding. There- was much contradictory evidence. The' jury also had the advantage of a personal examination of the alleged lunatic. What took place on that examination has not been disclosed on this order. But the fact that the jury had examined him, and thereafter rendered a verdict upon that evidence; is deemed to preclude the setting aside of the inquisition upon that ground.”

There is no doubt that an inquisition, like a verdict in an .action at law, may be set aside when it is without substantial support in the evidence. Ridgeway v. Darwin, 8 Ves. 65; In re Lawrence, 1 Stew. Eq. 331. This power is to be employed only in clear cases. The chancellor lightly decided that this proceeding did not call for its exercise.

In the third place, counsel asked that Mr. Davenport be allowed to traverse the inquisition, or that an issue as to his lunacy be awarded. In dealing with this application the chancellor made the following accurate statement of the law and practice:

“Such an application is addressed to the discretion of the court, and should be granted if, upon the whole evidence, a reasonable doubt as to the correctness of the evidence is disclosed. Van Auken’s Case, 2 Stock. 187; James’ Case, 9 Stew. Eq. 547; De Hart v. Condit, 6 Dick. Ch. Rep. 611. The evidence has been- examined with care, and the result reached is that a reasonable doubt does exist as to the finding of the jury. This will justify and require the granting of leave'to traverse, if it appear satisfactorily to the court that the person found by the inquisition to be-of unsound mind intelligently asks and actually desires such leave. The practice-of this court in such cases is to direct the petitioner to be brought before the chancellor for a personal examination, if that is practicable. In this case the distant residence and the age and infirmities of the petitioner will, no doubt, render impossible his personal appearance before the chancellor. Under these'■ circumstances, the practice is to have him examined by some discreet master •of the court, who will reportupon his ability to understand-and desire a further test. Van Auken’s Case, ubi supra; Lindsley’s Case, 1 Dick. Ch. Rep. 358.’’

The next step would naturally have been for the chancellor to appoint a discreet master and direet'him to examine Mr. Davenport. This is the course indicated by Van Auken’s Case, 2 Stock. 186. Chancellor Williamson’s" opinion ends with these words: 1 ' ■

“I shall direct the petitioner to be 'brought before the court, in order that a private-examination may be had for .the purpose of: ascertaining whether he understands the object of the petition and desires a traverse. If the distance of the petitioner’s residence from the court makes this inconvenient, I shall direct the examination to be made by some' discreet master of the court.”

So, in Lindsley's Case, 1 Dick. Ch. Rep. 358, Chancellor McGill said:

“I concluded that I should not encourage further litigation, unless, upon a private examination of Mrs. Lindslejf, I should find that she under standingly desired to traverse the inquisition. Upon inquiry I found that she was unable to attend upon me, and I therefore appointed Mr. Washington B. Williams, a discreet and impartial master of this court, to repair to the house of Paul Fairclo, and there conduct the examination of Mrs. Lindsley in my stead. He has reported to me that, in his judgment, she is not competent to exercise an act of volition.”

In the ease now under consideration the chancellor did not make an order for the examination of the alleged lunatic. His opinion concludes with this sentence: “If counsel will apply and.arrange for an examination by a master, one will be designated.” No such application was made.- The counsel for the respondents did not make it, for he was satisfied with the inquisition. The counsel for Mr. Davenport did not make it, because he did not think it his duty. On the 10th of October, 1900, the decree appealed from was made. In its reciting part it «declared that leave had been given to apply to the court for the appointment of a master to examine the alleged lunatic for the purpose of reporting upon his ability to understand and desire such leave to traverse, and that no such application had been made, and that notice had been given to the solicitor of Mr. Davenport of a motion to confirm the inquisition, and that counsel for Mr. Davenport had declined to apply for the appointment of a master in accordance with the leave granted by the court. In its decretal part it disallowed the application to set aside the inquisition, denied leave to traverse, and confirmed the proceedings and inquisition.

It is evident, from the foregoing statement, that what the appeal brings up, on this branch of the case, is a point of procedure. The question is whether the initiative, as to the proposed inquiiy, rested with the chancellor or with counsel for the alleged lunatic. That the chancellor had power to take the initiative is plain. That he should do so seems the. natural course. The examination by a discreet master is merely a substitute for personal examination by the chancellor. - In either ease the matter is between the court and the alleged lunatic. Both Chancellor Williamson, in the Van Auken Case, and Chancellor McGill, in the Lindsley Case, call it a “private” examination. It appears from the language of Chancellor Walworth, in Christie's Case, 5 Paige 212, that, in his opinion, the examination, whether conducted by the chancellor or by a master, is to be private. What standing has counsel on such an examination? And if counsel can take no part in the inquiry, why should it rest with counsel to initiate it? It squares with the nature and purpose of the investigation that the chancellor should himself originate, direct and control it. The cases, both in this state and in England, indicate that such has been, and is, the practice. In re Bridge, Craig & P. 338; In re Cumming, 1 De G. M. & G. 537; In re Hanks, 3 Johns. Ch. 567. This need not involve a retrial by the chancellor of the merits of the controversy, for it may well be, as remarked in an English case, that a lunatic may have an intelligent wish for a traverse.

On this view of what is correct procedure, the refusal of counsel for the alleged lunatic to apply for the appointment of a master was not a waiver of any right. His client’s right, under the chancellor’s opinion, is a conditional one—the right to traverse the inquisition if he intelligently wishes to do so. That right is still his, and the question as to his intelligent wish is yet undetermined. A decree expressive of these conclusions would take this form: After the proper recitals, it would deny the application to set aside the inquisition, grant leave to tra'verse, if the alleged lunatic intelligently desires to do so, and appoint a master to examine the alleged lunatic, and. report whether it is his wish to exercise that right.

The decree appealed from is reversed, in order that it may be modified to conform to the above opinion.

For reversal—The Chief- Justice, Van Syckel, Dikon, ■Garrison, Gummere, Fort, Garretson, Hendrickson, Adams, Vredenburgi-i, Voorhebs—11. ■ . .

For affirmance—-Collins, Bogert—2..


author: Yredrnburgh, J.

text:
    Mary G. Brown, appellant, v. George T. Brown, respondent.
    [Filed November 15th, 1901.]
    1. The testimony of the witnesses sworn on behalf of the petitioner, as to the charges of adultery against the defendant, upon which the decree below is founded, considered to bear evident marks of improbability and exaggeration, and held to have been fully met and disproved by the proofs of the defendant. And held, also, that the evidence relating to the prior conduct of the defendant, introduced by the petitioner for the purpose of showing an alleged adulterous disposition on her part toward the co-respondent; failed to establish such a charge.
    2. The rule stated in Berohmans v. Berohmans, 1 O. B. Or. 122, that “the. testimony of one witness uncorroborated, unsupported and in its details improbable, is not sufficient to establish the charge of adultery against the full and explicit counter testimony of the person accused and her particeps eriminis," approved.
    3: In cases depending upon circumstantial evidence for support, the will to commit the adulterous act, as well as the opportunity for its commission, must be established.
    4. While in a suit for divorce for adultery by a husband against the wife, his conduct in designedly encouraging and furnishing occasions and ■opportunities for suspicion against her may not constitute such connivance by him as to be legally sufficient to bar him from his right to maintain his suit, yet liis conduct may serve to explain and excuse the appearances of intimacy into which she thereby became involved, and out of which the charges of -adultery against her arose.
    On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 17 Dick. Oh. Rep. 29.

      - Mr. Isaac 8. Taylor, for the appellant.

      Mr. Flavel McGee, for the respondent
   The opinion of the court was delivered by

Yredrnburgh, J.

This litigation was commenced on November 15th, 1898, by a petition of the husband, praying for a decree of divorce against the wife, filed under the divorce provisions of our statute, and based upon the alleged commission, by the wife, of adulterous acts, charged to have been committed with a designated person at the localities of Bogota, Jersey City and Eed Bank, in this state, during a period of four and a half months, viz., July, August, September, October and the first half of November, 1898. The large volume of facts in evidence (taken before a master, and covering, with the opinion below, irrespective of briefs of counsel, nearly five hundred printed pages) render it a practically impossible task, within the proper limits of this opinion, to deal either with all the minutiae of the case or with all the reasons which might be advanced for the conclusion now arrived at. This course is the less to be regretted because it makes possible the omission of many forbidding details of the evidence, which otherwise would unnecessarily encumber our reports, and tend to gratify prurient curiosity, rather than to accomplish useful results. 1 shall therefore condense the bounds of this opinion without, however, I hope, slighting any of the material features of the case, which have been so thoroughly and laboriously presented in the opinion below.

There aro but two occasions when it can be claimed, under the evidence, that adulterous acts were committed by the defendant. The first of these events is said to have taken place in the house and home where these parties and their children lived-—82 Glenwood avenue, Jersey City—on some night in the month of October, 1898 (the evidence of the time or date being extremely confused and indefinite); the second event is alleged to have happened on the night of November 5th, 1898, at the private dwelling-house and home of Mr. Graham Yan Keuren, in the town of Bogota, New Jersey. The first charge depends for support entirely upon the credit that should be given to the testimony of a single witness, a servant woman, named Maria Mitchell; and the second accusation depends solely upon the credit that should be attached to the testimony of a single witness, an avowed detective, named James A. Coyne.

The initial question of fact to be met is: Was adultery committed on the first occasion above named? Is Maria Mitchell’s testimony entitled to belief ? As she acknowledged that she was under the pay and employ of the petitioner at the time she claimed to have seen the' acts of which she speaks, as well as at the time of her examination as a witness in this cause, it will be admitted that her statements in favor of her employer should be subjected to the most careful scrutiny. She was an interested witness and vitally essential to the petitioner’s success as to the charge she was relied upon to sustain. While it is well settled in this state that the testimony of a single witness may be sufficient proof of adultery to sustain a decree of divorce, though denied by the defendant upon oath, yet it is held that “such effect must depend upon the probability of the story, the character of the witness and the consistency of his [or her] evidence.”

The intelligence of this witness is well criticised in the opinion below, finding that she, to use its language, “is somewhat stupid, very illiterate, cannot read and has a poor command of language.” In adopting that estimate of her intelligence I shall add also that it appears by the record that she was so ignorant that she could not write her name, but affixed, at the end of her testimon)’, her cross-mark instead, stating to the master that she could'not write her name. I attach some importance to this fact, because it gives a needed inkling of her origin and character, or rather want of character, because all information as to her previous history she persistently denied to the cross-examiner. A brief transcript of a portion of her testimonjr will show this, as follows:

“Q. Iiow old are you?
“A. I don’t know.
“Q. How long have you been in this country?
“A. I can’t tell you; I’ll have to find out.
“Q. Are you from Ireland?
“A. I don’t know where I am from.
“Q. Are you married?
“A. I don’t know.”

This last answer certainly caps a climax of agnosticism. The affirmative evidence of her antecedents being so meagre, we are forced to regard the negative side of the inquiry. How does it happen that the petitioner and his experienced counsel suffered a witness (so important to his case) to leave her testimony on the subject of her character in such doubtful shape on the record? We can understand that, in her direct examination, the party calling her could safely stand upon the usual presumption of her good character until it was questioned, but after it had been attacked in her cross-examination, and she had refused to answer proper questions affecting it (only a part of which I have above quoted), what reason could the petitioner’s counsel have had, upon her redirect examination, for avoiding that subject? If she had come from respectable associations or surroundings, it seems to me that counsel would have been quick to respond to the challenge offered by the other side, and prompt to strengthen her questioned antecedents. In this condition of the record I think her previous character must be regarded with great suspicion, and that her evasive answers as to her identity were probably due to a fear of disclosing that she had been employed through Coyne, the detective, and for an ulterior purpose, hereafter referred to.

But the probability of the story Mitchell tells, of what she claims to have observed as to the conduct of the defendant and co-respondent, provokes, from every point of view, still greater suspicion. In the first place, her identification of the affair to which she pretends to speak, so far as any date is concerned, is very unsatisfactory, if not disquieting. In her main examination she was permitted to answer the following leading question, itself suggestive of a fear of the witness’ ability to fix any time unless assisted by the form of the question, viz., “Q. Now tell us what happened on a Thursday night about a month after that?” The words “after that” in this question seem to have reference to an occasion when the witness had said, in her previous answer, that Mrs. Brown and Mr. Cane had attended the theatre. It appeared in the case that they attended the theatretogether on two occasions, viz., on October 1st and on October 15th, 1898. ■ In her cross-examination she swore that she could not say whether the incident she refers to occurred two months after these persons went to the theatre or not, and in another part of her testimony she swore that she “was not really sure whether it was in October or in September.” This important date, fixed in such an ambulatory manner by this witness, can only be the subject of conjecture from her testimony. In the opinion below it was thought that the witness must have referred to some period between October 1st and the 14th, 1898. Adopting that, we proceed to her other statements of the circumstances surrounding the affair of which she speaks. She swore, on her cross-examination, and not until then, that on that occasion Mrs. Graham Van Keuren (who had brought with her her little girl) and her brother, the co-respondent, and Mr. John R. Ramsey, the clerk of Bergen county and a counsellor-at-law of this state, and the defendant were in and about the parlor and the two adjoining rooms on the parlor floor of 82 Glenwood avenue house, at a time in the evening which she could not fix, because, she said, she “didn’t look at the clock.” This time must have been earlier than ten o’clock at night, as will soon appear. ' She admits that there was “a bright light” in the hall adjoining the parlor and a “pretty bright light” in the parlor; that there was a “low light” in the middle room and another “low light” in the back room; that the doors between the parlor and the middle room were double doors and were open, and that the doors between the middle room and the back room were also double doors and were open. She had, in her chief-examination, stated that she “opened the door unexpectedly between the hall and the back room” when she went to it. On her cross-examination she made a very significant change in her previous statement, and said that she did not open that door; that it was already “partly open” when she went there, and in another portion of her testimony she termed it “a little open;” that she had a message from the kitchen (which was below) to Mrs. Brown, to the “floor” (parlor), “something about the breakfast;” that she looked through, that partly-open door which opened from the hall to the back room, and through that opening there saw defendant and co-respondent on a lounge in a compromising position. She also said that Mr. Ramsey and Mrs. Yan Keuren were in the parlor at that time and Mr. Cane and defendant were in this back room. The position of the lounge, in respect to the door through which she said she looked, she did not give other than to answer, when asked on what side of the wall of the room it stood, “I don’t know; I didn’t pass no remarks on which side.” How much of this story was true and how much was false or exaggerated we have to determine. I have no doubt that most of it was correct. The fabrication was not probably in the foundation of the incident, but consisted in her exaggerations respecting the positions of the persons, whom she desired to implicate in the adulterous charge she was endeavoring to support by her testimony.

It is probably within the experience of every trial lawyer and of every judge that willing witnesses, and 'even corrupt ones, unless they are phenomenal falsifiers, have a foundation of fact upon which they build their fabrications, and that their fabrications are apt to consist of distortions of the actual facts. It is quite likely to have been the truth, and indeed is not denied, that Mr. Cane and the defendant, at some time during the course of that evening, were in the back room together, but that they were at any time in an improper situation there or upon any lounge in such condition is explicitly denied, not only by each of them, but also by both Mrs. Ramsey and Mr. Ramsey. With four oaths against one, we are' justified in looking with the greatest care at the probabilities of the truth of the incriminating part of this woman’s story. The time to which the witness would have us refer must have been before ten o’clock in the evening, because Mitchell says that she usually went to bed at ten. Her bed was in a servant’s bedroom above the parlor floor. The two servants were downstairs, and were liable to come up to the parlor floor at any moment for instructions, or with messages from the kitchen about breakfast, and Mitchell swore she, in fact, did come on such errand when she claims to have witnessed the compromising situation referred to through the partly-open hall door. Not only were the two servants liable to go directly in front of this “parüy-open” door, through the hall, up to bed at any moment, but the husband might also return home at any hour' and go into the parlor, through that hall, or up to his bedroom above the parlor. This house was neither a bawdy-house nor a brothel. It was the home circle, in which the wife had placed her little children, who, though upstairs, were certainly, in some degree at least, deterrents to any indecent conduct, on their mother’s part, within that sacred precinct. In the bright light of that early hour of the evening, in the parlor, with its double doors opening into and towards the opposite double doors of the back room, and within easy view of the interior of that room, were two respectable persons, one being a sister of one of the accused parties and the other a reputable eounsellor-at-law and her friend, both naturally interested in preserving the proper deportment of her young brother against the doing of a shameless act. Servants, also, were moving through the house with messages from the kitchen or on their way to bed through that hall, and open doors invited them to look in. Under all these circumstances of exposure, is it within the bounds of human probabilities that such an indecent act was then and there committed, and that, indeed, by a brother almost in his sister’s presence? No other credible evidence in the cause affords the slightest warrant for placing these persons upon so debased a level of humanity as such an act would imply. Under the conditions stated, it was not possible for an adulterous act to have occurred there without detection by someone in that house, and with this certainty of detection, is it at all reasonable to suppose that this defendant, with the warning then already in" her ears that her husband was contemplating divorce, would thus openly invite prompt and certain destruction of her marital rights, besides lasting disgrace to herself and her children ?

I think that the testimony of Maria Mitchell, as to the commission of any adulterous act on the occasion she refers to, is unworthy of credit in and of itself, and without regard to the fact that she was contradicted by four unimpeached witnesses.

The second question of fact is, was adultery committed by the accused parties on November 5th, 1898? The only witness Who speaks as to this occasion is Detective Coyne. He was interested in the event of the suit, because he was confessedly employed to watch these persons, in order to carry forward his employer’s design of obtaining a divorce, the success of which design probably depended upon the strength of the occurrences which the detective would swear he saw take place between them. He admits that he continued in -the same employment up to and at the time his testimony was given in this cause. How closely the petitioner watched his testimony is disclosed by the master’s notes of the evidence, in which it is stated that, at a point in the giving of his testimony, the petitioner interrupted the examination to correct an alleged misstatement of his witness. After á very careful consideration of this witness’ evidence, I think that the facts he states are misleading, and that his inferences from them are colored and magnified, and that, unless we are justified in allowing suspicions to usurp the functions of facts, we must pronounce his evidence unreliable.

The following is the fair result of all his evidence relating to the incident of November 5th, 1898. He swears he went twice that night to the private dwelling-house of a gentleman named Graham 'Van Keuren, in the town of Bogota, some few miles distant from Jersey City, for the sole purpose of watching its inmates. The first time he arrived at the house about half-past seven o’clock, and saw there, he says, “Mr. Cane, Mrs. Brown and another lady, a boy [young Georgie Brown] and a girl” in the dining-room, but saw nothing else of any importance at that time. He then went away, and came back again about quarter-past nine. His only purpose was to see, in, of course, the most furtive way possible to a mere trespasser outside, "what the inmates of the house did inside of the house that night, but as he had not been invited inside by the owner or occupants, and as there were strong reasons why he should not attempt to break in without invitation, he was, perforce, limited to what he could see and hear from the outside. It was cold and stormy weather, and the windows and inside shades over the windows were completely down, so that he was obliged to see, what he could see, through the windows covered by the window shades, and to hear, what he could hear, through the closed windows. He swears that the side window, outside of which he stood in order to make his observations, was about at the top of his head, or a little less than six feet above the ground, and did not afford him sufficient chance to see or hear, so he had to resort to a rocking chair. I will quote his own words: “1 found that the voices were rather inaudible; I could not hear as well as I would like to, and I took a cane rocking chair that 1 found on the front porch, placed it under the window and stood on it.” By this means, he said, “his ear touched the frame of the window ;” that, while standing on this rather precarious footing of a wicker rocking chair, with his ear touching the window frame, he observed the form of a woman, which, he says, “showed on the shade'or curtain a sort of silhouette picture/* Now, his evidence, and the whole of it, shows that this “silhouette** picture showing, or shadows on the window shade, constituted all the knowledge, either of the inmates of that room, or of their actions, which this witness did, or could possibly, derive by his eyesight from the situation he was in. He swears that his impression was that there was a light in the hall that lit up the room (but other positive testimony locates a lamp, lighted and covered by a dark-red shade, on' a table at the side of the room next to the hall), and that he saw shadows of persons on the curtain. He could not see their countenances. His sense of sight was therefore of very little, if any, evidential value to him. He admits this distinctly in his cross-examination. He admits that he could sec absolutely .nothing through that shade by which to distinguish the defendant from any other woman. This is so important a statement that I quote the Avitness* own language on this subject:

“Q. Now, Mr. Coyne, why have yon throughout your direct testimony referred to the female form which you saw and to the woman who came to the door as Mrs. Brown?
“A. Because of ihe voice I heard; because 1 recognized it as Mrs. Brown’s.
“Q. That is your only reason?
“A. That is ail."

The remainder of his testimony (which is very long) makes it absolutely certain that his whole reliance for obtaining any knowledge of the identity of the persons in the room, or of distinguishing Mrs. Yan ICeuren from Mrs. Brown, was upon his sense of hearing alone. He swears that, by his sense of hearing alone, he recognized Mrs. Brown’s voice in the expression, “You naughty fellow.” I stop to remark that even if he was correct in this surmise, and Mrs. Browi\ did use that language, it is of no sort of value on this question of the commission, or not, of adultery that night. Suppose Mrs. Brown did say in that room that night, “You naughty fellow,” and suppose the remark was addressed to Cane, is it of the slightest consequence in the case? Is it anything more than the most ordinary expression of badinage in lively conversation? Is it not an address of constant occurrence in light and playful discourse between friends ? But it was much more likely to have been the kind of raillery which a sister would address to a brother, and if the expression was used that night, it is just as probable that Mrs. Yan KeuTen used it toward her brother, as that the defendant made use of it. But this witness, when driven by cross-examination to admit that the shadows on the window shade gave him no certain method of distinguishing between the two ladies by his eyesight, made a desperate attempt to claim that he could recognize, in those three words “you naughty fellow,” the tone of voice of a lady that -he had never met. The following extract from Ms testimony will show this:

“Q. Had you become acquainted with Mrs. Brown?
“A. I had seen her on several occasions.
“Q. Where?
“A. On Glenwood avenue and the Boulevard before my employment.
“Q. Had you ever talked with her?
“A. No, sir.
“Q. Or she with you?
“A. No, sir.
“Q. How did you learn to know her voice?
“A. l saw different parties and heard her speak on several occasions; I saw a whole party come there on bicycles and I stood right near them.
“Q. How many?
“A. Four, five or six; they dismounted before the door.
“Q. Where was Mrs. Brown?
“A. One of the party.
“Q. What did she say?
“A. I can’t particularly recall; I didn’t know she was Mrs. Brown at the time.
“Q. And when was this?
“A. According to your question it was before I was employed.
“Q. How was it according to the fact?
“A. True; I couldn’t say exact; it was some time in the warm weather; it was some little before I Jmew anything about this ease.
“Q. And that was when you learned to know her voice, was it?
“A. I think so.
“Q. Did the whole party go directly into the house?
“A. They did; my impression is they all went in, and were all talking; it is a hard matter to follow a large party.’’

I am loath to lengthen this opinion by this long extract, but it so certainly serves to show the dishonesty of the assumption of knowledge of this important witness upon so material an element of proofs, that I could not omit it in justice to the ease.

But this extraordinary assumption of knowledge by this witness, from the outside of that house, of what transpired inside, on the night of November 5th, 1898, was not confined to his attempt to identify any particular person. lie drew, also, conclusions from those shadows which necessarily involve the conduct and character of certainly three of the inmates of that house, and it becomes important to subject his evidence to further tests. He said (I condense his expressions) that, at about twenty minutes of ten o’clock, he saw shadows cast upon the window shade from some light which, he thought, but was not positive, was in the hall, which excited his suspicions and indicated, to his mind, that the person (a woman) was “partly undressed,” and he proceeded to give certain details of the disarrangement of her clothing which, he says, he saw shadowed upon the window shade. Before adverting to the self-contradiction in his testimony upon this point, let us see what evidential value should be placed upon such appearances. It is a matter of common observation that grotesque shapes and figures, strongly resembling human beings or animals and birds and the like, can, at will, be thrown upon or against a curtain or shade by simply using and manipulating the two hands and the fingers as images interposed between a light and such shade. It would, it seems to me, be as reasonable to claim that the appearances of such odd forms through a shade was proof of the actual life of such mythical creations, as the claim this witness makes that the shadows he gazed upon should be relied on as evidence of the existence of any certain forms of life behind the shade. To attempt to elevate to the dignity of proof in a court of justice such misleading and fleeting eye-images, is to introduce an element of startling uncertainty in the solemn trial of causes. I think no precedent can be found in such trials, before any court of authority, approving or sanctioning such shadow-images as proper elements of proof. But there is in the evidence of this witness, so far as it relates to the shadow-resemblance of either Mrs. Brown or any woman there that night, in the condition of undress he depicts, so serious a discrepancy and contradiction that I shall take space here to preseht it. In his direct examination he had stated that the woman he referred to had partly undressed prior to Mr. Yan Keuren’s arrival, and had remained in her guilty, disrobed condition up to the time her host entered his house that night, at about five minutes of eleven o’clock. Mr. Yan Keuren was expected home from a shooting excursion and his family knew that he might come in at any moment. He (Yan Keuren) testified that when he arrived and went into his house he

“saw his wife and his brother-in-law [Gane] and Mrs. Brown in the little reception-room adjoining the hall [referred to by Detective Ooyne] ; that Mrs. Brown was as fully dressed as he had always seen her, and that there was no disarrangement of her dress in any way, and no disarrangement of her hair

that he talked with these three persons for about half an hour before Cane went home, which was about half-past eleven o’clock; that he accompanied Cane to the door and that the ladies remained in the hall. Coyne admits that Mr. Tan Keuren came in the house about a half hour before he {Coyne) left the house, and that he {Coyne) “did not notice any change of attire as to the person he had referred to in his testimony until about five or six minutes before he [Coyne] left the house.” It is thus apparent from the testimony of Yan Keuren that this so termed “partly-undressed woman” existed only in the imagination of Coyne, unless we reject his own subsequent admission, to be next quoted, and also tbe oath of Mr. Van Keuren. The evident inconsistency of Coyne's evidence must have struck the counsel of the petitioner as a serious fracture in the anatomy of the shadow creations, and he re-examined Coyne about this, and asked him the following question:

“Q. On your cross-examination there seems to be another discrepancy; you had been asked with reference to the change in the condition of the lady’s dress and as to the rearrangement of her clothing, and had apparently stated it was rearranged before Mr. Van Keuren entered the house; you afterward stated that you noticed the rearrangement of her dress about five or six minutes before you left the house; what is the fact with reference to that?
“/I. X couldn’t say anything about the arrangement of her clothi/ng before Mr. Van Keuren came."

Here, then, we find that when this witness is confronted by the inconsistency of his former statements, he is obliged to confirm the fact, sworn to by Mr. Van Keuren, that “there was no disarrangement of Mrs. Brown’s dress in any way.” So that it results that Co3’ne, after making positive assertions, seeking to convey the absurd impression that he could distinguish from the-outside of that window, by means of the shadows cast from rays of light penetrating through two different shades (one of them being a dark-red shade, and therefore diffusing the rays in their passage through it), the difference between arranged and disarranged clothing of persons inside of that house, retreated from his position, after cross-examination, and¿ upon his redirect testimony, was forced to the admission of the falsity of his previous evidence in that regard. When we weigh carefully the statements of the detective in their detail, they fail to convince the mind that he drew correct conclusions from the very few and misleading facts in his possession. On the contrary, it is apparent that he was prompted to supply the weakness of those facts by the strength -of his inference from them, and that his testimony is so highly improbable that it must be held, when impugned, insufficient to support the charges intended. It should be added that the four inmates of that house, who must have had knowledge of the facts they affirm, explicitly contradict all the statements made by the detective which tend -to indicate that any misconduct occurred there, and, unless we deem them all to have been guilty of willful perjury, must prevail.

Almost all the rest of the very voluminous testimony in this cause, other than such as pertains to the two charges of adultery above considered, has been introduced and received in evidence fox the purpose of showing an alleged improper intimacy with, and an adulterous disposition on the part of the defendant toward, the co-respondent. This evidence relates, to use the language of the opinion below, to “frequent meetings with more or less of opportunity to indulge illicit desires, if any they had, and acts of familiarity, such as kissing and embracing.” But it will be found, I think, that such of these charges as have any foundation are readily susceptible, when the circumstances in which these two parties were thrown are considered, of a construction consistent with entire innocence. The friendly intimacy which existed between Mrs. Brown and the family of the co-respondent, Mr. and Mrs. Graham Yan Keuren, to the latter of whom Mr. Brown had first introduced the defendant, naturally brought the defendant in socially intimate relations with Mrs. Yan Keuren’s young brother, the co-respondent. The defendant was five years older than he,-and the mother of two •children, and while she might admire his youthful conversation and even be charmed with his society, she would regard him so much her junior in years and experience that she could naturally feel that she might avail herself of his .escort in bicycle rides about the country, and might invite him to her home, without giving grounds for any imputation of entertaining a lawless .desire for his person. It would be a hard rule, indeed, that ■would compel a youthful wife, naturally fond of society, whose •companionship a husband had rejected, without the slightest •complaint or hint that she had failed in any of her home •duties, or in the care of his children, to abstain from all the active pleasures of life, and immure herself from the world, because it might be charged against her that, in her husband’s .absence, she afforded herself “more or less opportunity to indulge illicit desires.” The evidence upon this subject of improper intimacy emanates, with the exception of Coyne (the distrust of whose testimony has already been sufficiently indicated), almost entirely from servants of little character, whose-fairness and independence as witnesses are open to great suspicion. Indeed, the conduct of the petitioner toward one of these-servant witnesses throws so much light upon the methods he-has .pursued to obtain evidence, and, at the same time, gives such an insight into the character of the principal one of these witnesses, Lizzie McCabe, that it should not be passed over. She was discharged by the defendant from her service about September 1st, 1898, upon an occasion soon to be adverted to. At the time of her discharge she had declared to others that she would “get even” with the defendant for discharging her,, and afterwards told another that she “had fixed Mrs. Brown.” She was afterwards produced as a witness by and on behalf of' the. petitioner, and gave evidence before the master of an exceedingly hostile and malignant kind against the defendant. The evidence as to the petitioner’s meeting this McCabe witness is referred to in the opinion below. It shows that he appointed a meeting in New York City with her, and that she went from Red Bank to New York City on August 29th, 1898, and met the petitioner that night, at his apartments which he kept there. This 'he has not denied in this cause, nor did he deny its truth when his wife, who had heard of it, afterwards accused him of having had Lizzie McCabe with him one night in New York..According to her (McCabe’s) declarations to others in evidence,, which, as against her, were competent, he told her he was going-to get a divorce, and took her to a theatre and to a wine dinner,, and “kissed her, and they had a very good time.” She stayed all night at his apartments, in his rooms there, and until eight o’clock the next morning, and they came down to the ferry-together. In the opinion below, in referring to this meeting of the petitioner with the McCabe witness, it is remarked: “It. may be fairly inferred that the petitioner did treat this witness kindly, in order to induce her to tell him what she knew about his wife’s conduct.”

While there may be no difference of opinion as to the general propriety of a party in a cause treating his witness kindly to secure the attendance of the witness in his behalf, in order to tell what she may know, it must be conceded, I think, that the treatment by this party of this witness, instead of inducing her to tell what she knew, tended to lead her to tell what she did not know. It not only violated every rule of propriety as to-the treatment to be observed by a master towards his servant, and by a party interested towards his witness, but it has every appearance of a corrupt intent to unduly influence her testimony in his favor. Legal testimony, especially in controversies-involving the virtue of women, whose environments are easily susceptible of wrong constructions,- does not consist alone in the statement of facts that are obvious to the senses of the witness, but is made up, to a very large extent, of the impressions and inferences which the witness’ friendly or unfriendly disposition has led him or her to draw from facts. An unfriendly witness has the power to give to many acts, however innocent of wrong' intent, a false coloring 'of criminality. Now, all the feelings-of Lizzie McCabe, under this so-called kindly treatment, probably became enlisted in advance in favor of the petitioner and against the defendant, and the latter feeling was intensified by her immediate discharge by the defendant from her service-This state of feeling is plainly mavked throughout her testimony. A single instance stated by this witness, and referred to-at length in the opinion below, as evincive of self-conscious wrongdoing on the part of the defendant, will illustrate: On the Sunday afternoon during the last of August, 1898, when Mr. Brown went to Red Bank and there saw Mrs. Brown and Cane and others at the Bussell cottage; the witness testified that

“Will Cane and Mrs. Brown were both in the hammock, and Miss Bussell', hollored to Mrs. Brown, ‘Good afternoon,’ and Mrs. Brown got up out of the hammock qniolo when she heard Mr. Brown’s name mentioned.”

That this was a false coloring she gave to the facts is not only evident from the testimony of all the five -other persons who-were there, but the petitioner himself, who certainly, in his frame of mind at that time, would have noticed so palpable a shouting out of his name and any guilty haste by the parties-to change quickly their positions, has refused to confirm the-truth of it by his own oath.

Soon after the meeting between petitioner and this witness in New York, he proceeded to obtain other sources of evidence, and ■employed Detective Coyne to watch his wife, with the object, of course, of ultimately producing him as a witness. There is, about this time, observable a very striking and suspicious coincidence in the dates of the employment in behalf of the husband, or by his detective for him, of the following-named house servants, who became important witnesses for him and very hostile ones towards the defendant: On September 9th, 1898, Rose Leary was employed as a servant in the defendant’s house; ■on September 9th or 10th, Maria Mitchell; on October 14th, Rose Sexton, the evidence pointing strongly to the interference of the detective in her employment, and on November 1st, Maggie Meehan. This suit was begun (the affidavit being made on November 15th and the petition being filed November 16th, 1898), .and the petitioner states in it that he had ceased cohabitation with the defendant on August 20th, 1898. He had, on August "29th, 1898, said to Lizzie McCabe that he was going to get a ■divorce, and his scheme must have taken well-matured shape at least from that date. He had, as early as the middle of that month, declared that “if he could get evidence enough for a divorce, he would take it.”

.1 have, I think, sufficiently shown from the evidence the danger of reliance upon the witnesses above expressly named, and .an examination of the testimony of any of the witnesses who were employed in that household after August 29th, 1898, will persuasively show their strong bias against the defendant and their general unreliability. No wife, however faultless her demeanor, could escape from the false coloring which impure or prejudiced minds—enlisted in advance against her—might impart to her every act, no matter how free from guilty intention such act may be. The mere taking upstairs of “a drinking-cup ■of hot water” at night before retiring, a’simple and common remedy resorted to by thousands of sufferers from indigestion, was converted' out of the mouths of such witnesses into a suspicious act, and the possession of a simple “syringe,” a medical instrument almost indispensable for the health of every female, was painted by their- imagination with the blackest colors of impure intent.

In the very painstaking opinion below it is forcibly insisted that the opportunities (to which allusion will next be made) to indulge illicit desires with the co-respondent were created,, or at least instigated, by the wife’s conduct! But I think the-evidence shows quite the contrary, and that the conduct of the husband led to and furnished the very opportunities out of which the only charges of adultery having any foundation in. the evidence for support have originated. It should not escape notice-that even so late as the middle of the month of August, 1898,. the petitioner himself declared his belief in his wife’s purity. Upon a very impressive occasion, aboht that time, he stated to-a friend that he thought “Marne [his wife] was all right.” He-cohabited with her, as wo have seen by his own petition, until August 20th, 1898, and, presumably, at that date believed her guiltless, and no adulterous act is seriously attempted to be-shown by the proofs to have been committed until after the employment of the servant Mitchell and the detective, in October,, 1898. The petitioner, after his meeting with the McCabe witness, described above, and securing her to testify against his-wife, probably formed the plan of prosecuting the present suit. He soon employed the detective, and actively encouraged situations and opportunities, into which his wife unsuspectingly was-led, in order that these very situations might of themselves be-regarded and shown as evidence of her passion to seek the companionship of the co-respondent. The clearly-proved and undenied facts in this regard are that, some time about the 1st of October, 1898, the petitioner, when asked by his wife if he-would take her to the theatre, declined to go with her, but said to her that he “did not see why she could not ask her best fellow,” and upon her asking him, “Who is that?” he replied, “Will Cane.” The defendant, naturally taking him at his word, arranged to go with Cano to a Newark theatre on the only two-occasions on which they ever attended it together. On each occasion Mr. Cane was invited, with the knowledge and approval of the petitioner, to dine with him and his wife, and go with her from the house in Jersey City. He came in answer to the-invitation, and on both occasions (October 1st and 15th) dined with Mr. and Mrs. Brown at their table and in their house. On the first occasion, at their starting, they bid Mr. Brown goodbye in the house, and on the second occasion Mr. Brown actually accompanied them from the house and walked with them to the street ear, going to Newark. Now, on these very occasions, the detective, who had been secretly employed by him, but unknown .and unsuspected by them, followed them, and has, in this cause, testified to the facts of these two visits to the Newark theatre with great circumstantiality. Although the conduct of the wife, in extending to Mr. Cane invitations in these instances, was but the natural sequence of the husband’s own suggestion and recommendation, this evidence has been used—strange to, say— with great effect in the case to establish "a strong disposition on the part of the defendant and her alleged paramour to he in each other's company." Indeed, the facts presented in the whole ■case do not show that the wife, at any time or occasion, sought to avoid the society of her husband, in order to enjoy that of another; but, on the contrary, they tend to the conclusion that it was only after she had failed in her efforts to interest her husband in her pleasures, and to induce him to spend his evenings at home (he seems seldom to have come home before twelve .at night), that she became interested in the society of the Yan Keurens, the only intimate friends she had. This she did openly and not in a clandestine manner. It is a very significant fact that the husband has nowhere in the proofs shown that his wife, by or through any attempted concealment from him, arranged or appointed any meetings with the co-respondent, or that she, in any instance, disregarded any of his expressed wishes, or that she failed, in any degree, to show him the respect and affection due from a loyal wife. Pier reputation, under the proofs, stands without a stain or blemish upon it, and nowhere in them has there appeared even a word used by her, either verbal or written, to indicate that she possessed a carnal mind toward the corespondent, or the will to commit the crimes charged. In Berckmans v. Berckmans, 1 C. E. Gr. 148 (1863), Chancellor Green held that, “in order to prove adultery by circumstantial evidence, two points are to be ascertained and established—the opportunity ■for. the crime, and the will to commit it.” His decision was .•affirmed by this court. Berckmans v. Berckmans, 2 C. E. Gr. 453.

The history of the lives of the parties to this suit for ten years prior to its commencement is given, in the defendant’s evidence, in extended detail, and is nndenied by the petitioner. That evidence shows, beyond room for the slightest donbt, that since certainly the close of the year of 1896, during which the ■second child was born, this husband had neglected his wife; that he had absented himself from her society to a very large extent; that he had left to her, unassisted by him, the care of their little •children, and that he had given a large portion of his time, and apparently all his love and affection, to another woman. His generous gifts and unremitting attentions to the latter were as pronounced and constant as his cold neglect and studied indifference toward the former. He avoided the society of his wife, .and estranged himself from her pleasures as well as her cares, with the inevitable consequence that the pleasures and companionships of her life became separated entirely from his pleasures and companionships. It is true that he supported her, but "he did nothing else. From the undisputed evidence it is impossible to infer that he either loved or cherished her. The particulars of his conduct, other than already given, I shall not take the time and space to set down, but there is no escape from the conclusion that it had a direct and necessary tendency -to furnish the very opportunities for suspicion which he now would turn against her, to his own advantage, and which have been, under the belief of the truth of those suspicions, commented upon and denounced in the opinion below. He spoke not a word of caution to her. He made no effort, even by a single hint to her (a hint which the most experienced in the ways of the world often need), to arrest her attention to the appearances of intimacy with the co-respondent, which he knew had excited some remark from another, nor to place before her even the slightest obstacle, designed or calculated to convince her, -or even lead her to think, that he objected to her finding her pleasures in the companionship of her friends. On the contrary, as we have shown, he encouraged her to accept of the escort of Mr. Cane, on different excursions at night, in order that these -very acts might, through the detective instrumentalities which. he had previously Secured, and the aid of the testimony of servants of low character, be produced in evidence against her for' the purpose of establishing her alleged carnal desire to seek the' society of the co-respondent. In the opinion below it is said,, in exoneration of the duty of a husband under the circumstances presented, that he was not “under any obligation to warn his-wife of his suspicions and so put her on her guard/’’ As the conclusions at which we have arrived on this appeal, and which I have endeavored to point out, do not rest upon the idea that the conduct of the husband has barred him from his right to maintain this suit, but solely upon the view that it helps and serves to explain-the situations and opportunities in which his wife became involved, it will not be necessary to decide whether or not the rule as to the husband’s conduct, above quoted, commends itself to the judgment of the court.

• I think that, for the reasons stated, the decree below should be reversed, and the petition dismissed.

For reversal—Ti-ie Chieb Justice, Van Syckel, Dixon,. Garrison, Gummere, Collins, Fort, Garretson, Hendrickson, Bogert, Krueger, Adams, Vredenburgi-i, Voori-iees, Vroom—15.

For affirmance—None.