text:
    Rhoda Hill, Mary C. Reed and Sarah D. Hayward v. Samuel Hill, executor of James Hill, deceased; Jehu Hill and Thomas H. Hoffman, administrator cum testamento annexo of Samuel Hill, deceased.
    [Submitted November 3d, 1905.
    Decided November 17th, 1905.]
    Complainants, as legatees of their father, charged defendants, as executors of his will, as if both defendants were alive, with having received $3,000 as the proceeds of his estate, and showed where in the ordinary course of business they ought to have received $400 from another source, and called on them to account. One of the defendants answered by showing that his co-executor received all the money from the proceeds of the estate proper, and died a year thereafter, and with regard to the $400 disavowed all knowledge thereof, and stated that he paid no attention to the management of the estate and executing the will, either in the lifetime of his co-executor, who, complainants knew, handled the money, and who had been dead seventeen years, or afterwards, and that he was never called on to do anything in the premises till the filing of the bill, seventeen years after the right of complainants to an accounting accrued.—Held, that' while the answer admitted culpable negligence, the cause of action was for mere nonfeasance, and was barred by laches.
    Oil final hearing oil bill and the answer of Samuel Hill, executor.

      Mr. Freeman Woodbridge, for the complainants.

      Mr. Frederick P. Peavse., for the answering defendant.
   Pitney, V. C.

The object of the suit is to hold the answering defendant liable as surviving executor of the will of the father of all the parties except Hoffman.

The ground of the complainants’ (who are legatees under a will) claim, as finally developed, is negligence on the part of the defendant.

One of the answers to that claim is acquiescence and laches on the part of the complainants of such a character and degree as to bar them in their relief.

The cause being heard on bill and answer, the statements of .fact in the answer must be taken as true.

I feel constrained to say that the case is not presented in a satisfactory shape. One cannot avoid the suspicion that the complainahts may have a much better case -than is stated by their bill, and that the defendant may have a much better case than is stated in his answer.

Ho answer has been put in by Hoffman, who is charged as administrator cum lesiamenlo annexo of Samuel Hill, deceased, who was the grandfather of all the parties except Hoffman.

The estate which is sought to be recovered consists (1) of the estate proper of James Hill, the father, which came to the hands of Jehu Hill, now deceased, as co-executor with the defendant Samuel, son of James Hill, deceased, and (2) the share which James Hill was entitled to in the estate of his father, Samuel Hill, deceased, which came into the possession of the defendant Hoffman.

The fads are that James Hill, of Middlesex county, died December 28th, 1885, testate of a will, which, after giving several small legacies 'and providing for his widow, directed-the residue of his estate to be equally divided between his five children, namely, the three complainants and the defendants Samuel and Jehu Hill.

He appointed his brother, Jehu (since deceased), and his son, Samuel, the answering defendant, his executors.

Those executors, in January, 1886, filed an inventory of personal estate, amounting to $1,107.10.

Subsequently, in March of the same year, they sold two parcels of real estate under a power in the will. One parcel sold for $1,575.55 and the other for $718.72.

The defendant Samuel joined in these deeds, but never received any of the proceeds, the whole having been taken by his co-executor, Jehu Hill, the brother of the testator.

Ho accounting was ever made by either Jehu Hill, the executor, or by the defendant Samuel Hill.

The bill alleges that one of the complainants has received $100 on account of a legacy of $150 given to her by her father’s will, and that another one has received a like sum on account of her legacy of an equal amount.

The bill makes no allegation as to the character of the dealings of the executors with the money of the estate as aforesaid received, but assumes that upon mere joining in the inv'entory by the answering defendant and by a like joining in the conveyances of real estate he became absolutely at once bound to account for the whole, and prays such an accounting.

In fact, the bill proceeds against Samuel Hill and his Hncle Jehu, as executors, as if each were alive, and takes no notice of the death of Jehu, which occurred,. according to the answer, on the 14th of April, 1887, a little more than a year after the sale of the lands.

It alleges no waste of the estate by either executor, nor any special neglect by either.

It does not anticipate any defence which may be set up by the defendants, nor does it state the least reason why the complainants have rested for so many years without calling the defendants to account.

The executors were liable to account early in the year 1887. The bill was filed July 6th, 1904, at least seventeen years after the right accrued.

The only indication of the respective ages of the children found in the bill is the order in which they are named, as follows: Mrs. Hayward, named as such; Mrs. Eeed, named as Mary C. Hill; Ehoda Hill (one of the complainants), Samuel Hill and Jehu Hill.

The answer of Samuel shows that at the death of his father he was a lit’tle over twenty-one years old. Then, after stating the death of his unde, Jehu, the defendant says, “possibly by virtue of the extreme youth of this defendant” lie never had .anything to do with the actual control and management of said estate, and never had any of the moneys of said estate, which were wholly controlled by the said Jehu Hill, “all of which was fully known and has been fully known for years to the three .above-named complainants.”

The answer proceeds to state that since the death of Jehu, he (Samuel) never has had. any of the moneys of the estate of said deceased, none ever having come to the defendant’s hands, the defendant not knowing there was any estate to settle, supposing the said estate had long ago been settled and disposed of by^his co-executor.

I feel constrained to say that this section of the answer which I have paraphrased seems to me to admit gross negligence on the part of the answering defendant.

His co-executor died about thirteen months after over $3,000 of the estate had come to his hands, in which he, the answering ■defendant, was interested to the extent of a legacy of $200 and a share in the residue equal with his sisters and brother.

In admitting, in his answer, the joining in the deeds for the two parcels of land, he says, as to both, that he knew nothing of the circumstances of the sale and received none of the moneys except that he received $100 on account of his legacy, and (after dealing with the interest of his father in the estate of his grandfather, presently to be mentioned), he closes his answer with this allegation:

“In conclusion, says that he knows nothing whatever concerning the estate of his father, never having managed or directed the same, or any ■of the moneys, with the exception of $100, a part of his legacy, but this defendant believes, charges and insists that upon a settlement of the ■estate of Jehu Hill, his co-executor, by his executors, it will be shown that there are no moneys in the hands of Jehu Hill, deceased, which have not been paid out in the settlement and distribution of the estate of James Hill, deceased.”

Upon this closing allegation, I remark that'it is quite insufficient to be treated by the court as a statement of fact which must be taken as true on a hearing on bill and answer.

The same remark applies to another statement in the answer, arising out of the provisions of the will for the testator’s widow.

It would seem that he had a second wife, and provided in his will that she should have

“over and above ber dower right of one-third of my property after my debts and expenses are paid, the interest of said one-third only to be paid to her as long as she shall remain my widow; one bedstead, one bed and bedding, one set of chairs, one table, one carpet, one looking-glass and the double picture of our photograph.”

The effect of this bequest is to give her outright the specific articles of furniture mentioned, and the interest of one-third of his esiate as long as she should remain his widow. The allegation of the bill is that the widow married on April 18th, 1889, a little more than three years after her first husband’s death, and thereby her interest under the will ceased. It does not appear whether she accepted the bequest to her in lieu of dower. It may be supposed that she joined with the executors in the conveyance of the real estate. There is no allegation either in the hill or answer on that subject. The answer states that the answering defendant knows nothing concerning the remarriage of the widow, “but supposes the same to be true,” by which 1 infer that he means to say that the allegation in the bill in that respect is true. The answering defendant further says that he “understands that the widow received the sum of $500.”

This allegation of the answer is subject to the same criticism as that with regard to the result of an accounting by the personal representative of Jehu Hill. It is altogether too vague and uncertain to he treated as an allegation of a fact to he taken to he true on bill and answer. But it may well be supposed that, under the language of the will, the widow, when called upon within two months after the decease of her husband to join in the conveyance of his real estate, demanded and received the sum of $500 as her share of the proceeds, and perhaps in settlement of all demands against the estate, and that such a settlement would he approved by this court.

So much for the facts relating to the estate actually received by cne or both of these defendants.

With regard to the interest of the testator in the estate of his father, Samuel Hill, the allegations of the bill are that the grandfather died January 26th, 1885 (about eleven months before the testator)' and by his will appointed the testator and one A^anderipe executors, and that these executors proved the will in Februaiy, 1885, but the bill does not allege that any of the funds of said estate came to their hands; and that after-wards, in January, 1887, letters of administration cum testamento annexo de bonis non were issued to the defendant Hoffman; that in May, 1887, after the death of Jehu, .Hoffman filed his account in the Middlesex county orphans court, showing a balance of $1,279.53 in his hands, one-fourth of which, by the express terms of the will of Samuel Hill, set forth in the bill herein, was given to the testator, James Hill. The bill alleges, in substance, that Hoffman has never paid any part of that one-fourth share to either the executors of James Hill or to the complainants, and that he has never been called upon b3r the defendant Samuel, or by his co-executor, Jehu, to pay the same.

The defendant admits these allegations with regard to the death, will and estate of their grandfather, Samuel, but he says he knows nothing about the accounting of Hoffman, or the amount found by the accounting in his hands, and he asserts that he has never received any money from Hoffman, and says

“that he has never been called upon to call the said Thomas II. Hoffman to account, and that he is as desirous of an accounting as the complainants, if the complainants’ statements are true.”

..Here, again, I feel constrained to say that the defendant admits the utter neglect of his duty as executor. His co-executor, Jehu, died, as we have seen, in April, 1887; 'the final account of Hoffman, as executor of their ancestor, was filed in May, 1887, and allowed by the orphans court on the 17th of July in that year. It does seem to me that, however the defendant may have been justified in leaving the execution of the will of his father and the administration of his estate to his co-execútor and uncle during the latter’s lifetime, surely, upon his death, it was his duty to look after it, and especially after the interest of his father in the estate of his grandfather.

The case, then, may be briefly stated thus: The complainants, as legatees under the will of their father, charge the defendants, executors thereof, as if both were alive, with having received upwards of $3,000 as the proceeds of his estate, and showing where, in the ordinary course of business, they ought to have received over $400 from another source, and calls on them to account.

One of the defendant executors answers by showing that his co-executor received all of the moneys from the proceeds of the estate proper, and died about one year after such receipt, and with regard to the $400 from the other source he disavows all knowledge of such money, and states, in substance, that he never paid the least attention to the business of managing the estate and executing the will, either in the lifetime of his co-executor or afterwards, and sets up that he was never called upon to do anything in the premises until the filing of this bill, seventeen years after the right of the complainants to an account accrued.

This answer admits, in my judgment, culpable negligence, and leaves the defendant liable to account, unless the mere lapse of time is sufficient to excuse him and bar the complainants’ right.

The defendant, in his answer, does not specifically set up the lapse of time as a bar. He does not show specifically how he has lost anything in the way of evidence; nor, on the other hand, do the complainants anticipate the defence of lapse of time or give any excuse for their laches. They rest on their right to an account as if both executors were living and the. transactions were of recent date.

■ The defendant does not set up in his answer either the statute of limitations, or, as before remarked, the delay of the-complainants in bringing their suit, but rests himself solely on the ground that he never received any of the money of the-estate, and in so doing admits a cause of action, namely, negligence on his part, which the complainants have not alleged.

But, although the real question in the cause does not arise on the pleadings, yet it was dealt with by counsel in their arguments precisely as if it did so arise, and was treated by them as controlling the decision of the cause. I have therefore felt it to be my duty to consider it and act upon it precisely as if it did arise on the pleadings.

It will be perceived that the cause of action does not arise out of an ordinary breach of trust by the trustees of an express continuing trust, such as making an improper investment whereby money is lost to the cestui que trust, or a misappropriation of the trust funds, and the like, where it has been held that the statute of limitations does not apply, and the court is lenient with the cestui que trust in dealing with the question of laches in bringing suit. The cause of action, as already remarked, arises out of the neglect of the defendant to give proper attention to the'management of the estate, and to call the estate of his co-executor to account promptly after his decease, and in failing, himself, after the death of his co-executor, in calling for and demanding his father’s share in the estate of his grandfather. It is plainly a case of nonfeasance, and not misfeasance.

Now, all these causes of action arose at once. Complainants’ right to an account arose within a reasonable time after the sale of the property. They are chargeable with notice of the amount of the inventory, with the amount of the proceeds of the sale of the real estate and with the fact that their father was entitled to an interest in the estate of their grandfather. They are chargeable with notice that they were entitled to a prompt accounting, which is precisely the remedy which they are here asking.

Not only do they not allege their ignorance in these matters, but it is quite impossible to believe that they were so far inidifEcrent to their pecuniary rights as not to be informed that rthe time had arrived when they were entitled to receive from •their father’s estate more than they did actualty receive, unless' ;the same was absorbed in the payment of debts.

Moreover, it is distinctly alleged by the answer that they "knew that the moneys were handled by Jehu, and at his death it is impossible to- suppose that they did not think that if there was anything coming to them from the estate they ought to look after it.

The complainants, then, are chargeable with resting on their rights for about seventeen years without the least excuse whatever.

In the meantime it is fair, I think, to infer that the vouchers and papers relating to the estate, which must have been in the hands of their uncle, Jehu, have been lost or mislaid, and are not now available to the answering defendant.

Under these circumstances, it seems to me it would be a great hardship to call on the defendant to account for the moneys actually received by -his co-executor, and which it is quite possible to believe may have been entirely and properly paid out by him for debts of the testator in the due course of the administration of the estate.

' With regard to the claim against the defendant Hoffman, there can be no presumption of any money having.come to the hands of the deceased executor from him, for he died before the account was settled and the balance determined. The complainants were chargeable with notice of their rights under the will of their grandfather, and that the money was in the hands of Hoffman, and it seems to me they should have taken some measures years ago to enforce them.

Moreover, if the statute of limitations had been pleaded or distinctly set up in this case, I am inclined to the opinion that it should have prevailed by what is called analogy. As before remarked, there was here no continuing or express trust. Complainants’ right to an account arose at least seventeen years before bill filed. It was reasonable for the answering defendant to allow his uncle, Jehu, to have exclusive possession of the proceeds of the estate for the purpose of settling the same. Ho liability was incurred by him in that respect unless there were facts brought to his attention, of which there is-no proof, showing that he ought not to have trusted him. This is entirely clear under the course of decisions in this state. His liability, if any, must, as before remarked, rest solely upon his negligence in not calling his uncle’s personal representatives to account and procuring from them the necessary materials for rendering an account of his uncle’s dealings with the estate, and his negligence in failing, on his own motion, to demand from the defendant Hoffman his father’s share of the estate of his grandfather. The complainants are chargeable with knowledge of this neglect and that any cause of action they had arising thereout accrued at once, and the principles which protect cesluis que trustent against the operation of the statute of limitations does not apply.

Upon consideration of the whole case, I think that the hill should be dismissed as against the answering defendant, without costs, hut it may be retained for the purpose of reaching the defendant Hoffman, if the complainants shall so desire.


source: Caselaw Access Project

author: Pitivey, Y. 0.

license: Public Domain

text:
    Frank Van der Plaat v. The Undertakers’ and Liverymen’s Association of Passaic County et al., members thereof.
    [Submitted November 29th, 1905.
    Decided December 7th, 1905.]
    1. A complainant, who showed no established undertaking business or the ownership of any appliance used in carrying on such business, cannot obtain an injunction restraining an undertakers’ and liverymen’s association from boycotting him.
    2. The mere fact that the constitution of an association of undertakers and liverymen contains clauses the obedience of which would result in a boycotting of complainant, did not entitle him to an injunction restraining such a boycott.
    On order to show cause why an injunction should not issue. Heard on bill, with affidavits annexed, and affidavits in answer thereto.

      Mr. Edward F. Merrey, for the complainant.

      Mr. William B. Gourley, for the defendants.
   Pitivey, Y. 0.

The object of the bill is to enjoin a boycott.

The allegation of the bill is that the complainant is educated as an embalmer and undertaker, and has been, for two months prior 'to the filing of the bill, ready and willing to engage in that business, in the city of Paterson, in Passaic county, but has been prevented from doing so by the defendant association and its members.

It will be observed at once that the complainant has not, on his own showing, the least shadow of an established business. He does not own a single appliance necessary or convenient for the transaction of the business, but avers that he relies on purchasing coffins and other supplies of that kind from persons engaged in the business of furnishing such supplies, and on hiring hearses, carriages and horses from persons engaged in keeping those articles for hire for funeral purposes.

He alleges that the defendant association comprises all the undertakers in the county of Passaic and most of the livery-stablemen, and, as I understand the bill, all of those owning hearses and funeral carriages in the county of Passaic.

He further alleges that he recently applied for membership in that association and was refused.

He asserts, further, that he tried to buy a coffin from the only manufacturer or dealer in that article in the city of Paterson, and was unable to buy one, and was informed by the dealer, Mr. Kearsting, that he was unable to sell him any for the reason that the members of the defendants’ association would not buy of him if he should sell to a member outside of the association ; that he applied to two different liverymen who kept hearses, namely, Mr. Zabriskie and Mr. Ackerman, and they each refused to hire him a hearse and carriages except at a higher price than that charged to the members of the defendants’ association, and put their refusal on the ground that he was not a member of the association.

He does not state that on either of these occasions he actually had in hand a corpse to be disposed of.

The attempt to purchase the coffin and the attempt to hire the hearse and carriages were each of them mere experiments.

He produces and points out clauses in the constitution of the defendant association, which are as follows:

“Article 10. The members of this association shall not deal with any manufacturers of caskets or other funeral furnishings, nor with any jobbing house in undertakers’ supplies, who shall sell, or offer to sell, to parlies not in the business, or (after due notice) shall sell, or offer to sell, to any undertaker who persistently violates any of the provisions of this constitution, or to an expelled member of this association.
“Article 11. The members of this association shall not loan, sell, hire or exchange, either directly or indirectly, any part of their equipments or supplies to an expelled member, or to any undertaker who has violated any of the provisions of this constitution, or to any undertaker doing business in the county of Passaic, N. J., who is not a member in good standing in this association.
“Article 17. No undertaker or liveryman shall let or hire any hearse or coach to any private individual or person not an undertaker or liveryman for less than the schedule adopted by this association; neither shall he or she hire to aid or assist any undertaker or liveryman not a member of this association to secure hearse or coaches for any funeral.
“Neither shall any undertaker hire hearse or coaches from any liveryman who shall violate the schedule of prices or who shall hire hearse or coaches to any undertaker of Passaic county who is not a member of this association, after due notice has been given him.”

The complainant’s eonnsel cited a great number of adjudged eases in support of his argument that upon the facts as above stated he is entitled to relief in this court.

Before coming to the affidavits in behalf of the defendants, I stop to say that I have found no case which warrants the interference of this court against a boycott against a person who has no established business to be subjected to a boycott.

Coming, now, to the defendants’ affidavits. They show that the complainant’s applications for membership—there were two —were treated precisely as other applications were treated. The rules of the association require that the applicant should have certain qualifications as to moral character and financial standing, and should have served an apprenticeship of one year as assistant to a practicing undertaker.

Two different committees were appointed, one after the other, to inquire into complainant’s qualifications in these respects, and both found him deficient in the qualification of skill and familiarity with the conduct of the business, and that he had not served any apprenticeship as an assistant to an undertaker, and they were unable to find that he had been sufficiently, if at all, instructed in the process of embalming.

The only party (Mr. Kearsti'ng) in Paterson who makes a business of supplying coffins,'swears that he never was forbidden by the defendant association, or any of its members, to sell coffins or funeral supplies to persons in Passaic county other than members of the association, or threatened with the loss of trade if he did so; that in point of fact he has done so to an undertaker not a member of the association within a very short time. He gives a version of the interview with the complainant testified to with him quite different from that given by the complainant. He denies emphatically that he gave as a reason for not selling the coffin that he was afraid of loss of business from the members of the association. Judging from his account of that interview, he (Kearsting) was simply looking, with proper prudence, at the probability of his receiving payment for the coffin proposed to be purchased.

The defendants’ officers, ex-officers and some óf its members swear that its constitution was copied from that adopted by the Hudson county society; that there never was any thought by any member of the association of employing the paragraphs above quoted to prevent anybody from doing business who was not a member of the 'association, and that those paragraphs never had been enforced against anybody; that there never was any occasion to enforce them because every undertaker in the county of Passaic joined the association, and all are still members except one, who withdrew from the association because he became insolvent and went through bankruptcy, and has lately been refused readmission principally, if not wholly, on the ground of his insolvency.

Notwithstanding his non-membership he has been doing business in Paterson, as an undertaker, in a small way, without molestation by the defendant society.

The officers and members of the defendant society swear that the. attempt of the complainant to- establish himself as an undertaker in Paterson did not excite any action on the part of the society, and did not receive or meet with any opposition on its part or any of its members.

With regard to the complaint that complainant was unable to hire a hearse and carriages except at a rate higher than that charged to members of the society, it is to be remarked that the affidavits show, what is a matter of almost common knowledge, that it is the practice for the undertakers to make a profit of a dollar each from the hire of the hearse and coaches, and the complaint is, not that complainant could not hire the liearse and coaches at the price usually charged for those for-funeral purposes, but that he was unable to exact from the proprietor the profit of one dollar each.

But Mr. Zabriskie and the man (Yan Ilouten) in charge of the stable of Mr. Ackerman, to whom the complainant applied, each give quite a different account of the interviews from that given by the complainant.

Mr. Zabriskie swears that one evening, shortly before the bill was filed, the complainant came to him at his place of business, just as he had returned from a business trip in the country, and asked him to let complainant have the use of a hearse and three coaches the following day. Mr. Zabriskie answered as follows: “I stated to him that I could not do that; I was bus}'' the next day and could not accommodate him.” He proceeds to say he did not refuse to hire the hearse and coaches to him on the ground that he was not a member of the defendant association. He also swears that the complainant did not offer to pay cash for the use of the articles, nor did the deponent refuse to take the money, because none was offered. He further denies that he said to complainant that he could not do business with anyone not a member of the association, nor did he tell complainant that at any time, and he swears that he never said that he was afraid to let complainant have the hearse and coaches by reason of a fear of a boycott by the association, or that they had threatened him. He swears that no such threat had been made to him, and adds: “I did not know anything about the financial standing of the complainant and I decline to do business with any person unless I have some reasonable knowledge of their ability to pay.”

With regard to Mr. Ackerman, his foreman, Van Houten, swears that the complainant called at Ackerman’s stable and asked the hire of two coaches for the next day, and stated that he was an undertaker. Van Houten told him the charge was $5 each. Complainant did not offer to pay, but later in the day called up Van Houten on the telephone and stated that he desired to have a hearse and another coach, to which he was answered, “he could have the coaches, but he did not let the hearse to everybody,” to which he replied, “that if he did not get the hearse he need not send the coaches.” He denies that he said that complainant could not hire a hearse from Ackerman at any price.

Generally, the statements in complainant’s affidavits of the principal facts relied upon on this motion are thoroughly met and denied by the affidavits of the defendants, so that I am not satisfied that he has been subjected to any boycott, even if he had a business which was liable to be injured by 'a boycott. What he may be able to establish on final hearing, when he will have the power to compel the attendance of witnesses and exercise the right of cross-examination, I cannot, of course, anticipate.

In short, the complainant’s ease, at present, rests on the mere existence in the constitution of the defendant society of the clauses above sot forth, without any proof which satisfies my mind that the clauses in question have ever been enforced, or threatened to be enforced, against him, or that their existence has been the least obstruction to his success.

On this point I can find no judicial authority that the mere existence of such articles, Avithout their being actively enforced, form any ground for the interference of this court.

I conceiA^e it to be a fundamental rule governing the action of this court that it exercises its restraining powers only for the protection of some threatened injury to a property right or a right in the nature thereof. The mere unlawfulness of an act or a series of acts, even though that unlawfulness amounts to criminality, does not excite the action of this court, unless it affects the personal or property rights of some individual who asks the aid of the court.

It follows that, granting that I may conceive that the clauses in question are capable of being so enforced by the defendants as to work an unlawful boycott against some person, yet until a person who is threatened with such injurious action, and is likely to suffer pecuniarily from it, applies to the court, I cannot take action against the defendants.

The case is not within the rule upon which I acted in Martin v. McFall, 65 N. J. Eq. (20 Dick.) 91. There Martin was a baker in full possession of an established business, and declined a request of a labor union to close his shop at eight o’clock, and was threatened with a boycott, and actually suffered in his trade by the refusal of his old customers to deal with him. The difficulty at the interlocutory hearing was to charge any particular person, as an individual, or the union as a body, with having instigated the boycott.

I will advise an order that the order to show cause be discharged, 'with costs.


author: Pitney, Y. C. (orally).

text:
    The Hoboken and Manhattan Railroad Company et al. v. The Jersey City, Hoboken and Paterson Railway Company and Public Service Corporation of New Jersey.
    [Argued December 11th, 1905.
    Decided December 14th, 1905.]
    1. A railway tunnel company, desiring to extend its tunnel under the North river, still underground, leased from defendant connecting, street railway company the right to use certain of its land for that purpose for nine hundred and ninety-nine years.’ The land so leased was vacant, except for an old storehouse, and it appeared that the use of the land for the extension of such tunnel would not interfere in any way with the exercise of tbe franchises of the lessor.—Sold, that such lease was not beyond the lessor’s power to grant.
    2. Where complainant under a lease from defendant was entitled to enter certain land for the extension of complainant’s tunnel which had been constructed under the North river, but defendant intervened and with a strong hand refused to permit complainant to do the work contemplated, complainant’s damages being uncertain, it had no adequate remedy at law, and was entitled to an injunction restraining such acts.
    3. Where an injunction was granted restraining defendant from interfering with a strong hand to prevent complainant from constructing certain improvements under a lease, the injunction will not be suspended pending an appeal under a statute declaring that no appeal from an order granting an injunction shall suspend or modify its operation without an order of the chancellor, and that a suspension or modification thereof shall extend only so far as may be necessary to preserve the subject of the appeal, and shall not in any Case be allowed to destroy the right established or protected by the decree appealed from.
    On order to show cause.

      Messrs. Collins <& Corbin, for the complainants.

      Mr. Franlc Bergen and Mr. William, D. Fdwa/i'ds, for the defendants.
   Pitney, Y. C. (orally).

I have thought this matter over seriously and I will now state the reason for my action.

The complainant is the Hudson Tunnel Company; the defendant is a trolley company, having a terminus near the southerly Hoboken ferry, at Hudson Place.

The tunnel company built a tunnel under the North river, ending on this side, some distance—half or three-quarters of a mile from the ferry—the terminus of the trolley.

Desirous of extending its business and of intercepting the-travel that is brought to the ferry by the trolley company from the high grounds about Hoboken, the tunnel company entered into a written contract with the trolley company for their mutual benefit.

It was prepared with great care—it is not a loose contract—■ and there is no allegation or proof that there was any fraud or accident in connection with it.

That contract, in effect, gives a lease by the trolley company to the tunnel company of a certain tract of land in Jersey Citj", a map of which is exhibited and proven before the court, by which there appears to be a considerable piece of land, owned but ■not used for its present purposes by the trolley company.

That lease gives the tunnel company a certain right, for nine hundred and ninety-nine 3rears, by clear and express language, in that plot of land.

The object was to extend the tunnel from its present terminus, still under ground, until it reaches that point, and there to have an elevation to the surface, either by inclined plane or otherwise, in that square, and there to make a common terminus for passengers, so that passengers arriving at that point from the hill country and the body of the city to the west can conveniently take the tunnel and cross to the city of New York without taking the ferry, and, vice versa> passengers coming from New York to Hoboken would come to the surface from the tunnel and take the trolley.

That was understood to be a matter of mutual benefit to each part]", otherwise we must presume they would not have entered into it.

When the time came for going to work on the construction of the tunnel near that point—and especially for the tunnel company to excavate—in order to sink their shaft and start their work on the underground connection between this terminal and the present terminal, some half a mile distant, there seemed to be a reluctance on the part of the trolley company to do as they expressly covenanted to do.

The tunnel company thereupon started the work. They entered upon this piece of land, which is vacant, except as a storehouse for worthless rubbish, and began to dig; there they were met by physical opposition; the trolley company did not take the course which litigants generally take, and which this court thinks they ought in all cases to take—and never to resort to the strong hand—but it interfered by the strong hand, and arrested and drove out the workmen of-the tunnel company.

The tunnel company thereupon prepared its bill, with some care, addressed to this court, setting forth those facts; setting forth the contract and the correspondence, and setting forth that they had attempted to go to work, as by the language of the contract I think they had the right to do,- and obtained an order to show cause why an injunction should not issue.

By their bill they pray that the court will undertake to see that this contract is carried out under its supervision, and, incidentally, they asked for an injunction, not to restrain the defendants from doing anything, not to restrain the trolley company from breaking or damaging anything, but to prevent them, by the strong hand, from interfering with the complainahts in their legitimate work under that contract, where the trolley company had agreed under seal that they should work.

On the return day the bill was presented to me, with a mass-of affidavits and maps, which rendered the matter quite clear. When these had been read, I asked Mr. Bergen and Senator Edwards, counsel for the trolley company, if they had any affidavits in reply, and they said they had an answer and a plea.

The answer handed up was by the Public Service Corporation, in which it was declared it had nothing to do- with the contract. The plea was by the trolley company, and it simply set up that the contract was beyond their power—that it was ultra vires. It further added that two of its stockholders had objected to it, and had filed a bill to have the whole contract set aside. There were no proofs establishing the status of the two men who had objected to the contract; there were no new facts proven that the court could act upon in the matter of granting or refusing to grant an injunction—and the facts upon which I must act must be shown either by record or affidavit.

But there was not an affidavit produced. It was simply stated that the execution of the contract was opposed. All they really said was, “It is ultra vires, and we want that matter settled before anything is done.” PTo contention was made that the letter and spirit of the contract did not authorize what the complainant was doing.

I thought then, and I think now, that the plea was perfectly futile for Jury purpose whatever, except to act as a demurrer to the bill, and the whole question, then and now, is, did the bill, with the affidavits, set up a case ? I thought then, and I think now, that it does. The complainants were in possession, peaceably,-trying to work under a deed and contract which gave them the land in the strictest language, and they were proceeding to carry out that particular purpose, and I think they had a perfectly clear case at law, requiring no adjudication at law to bring it within the jurisdiction of this court. And the defendants were stopping them by force; they did not come to this court by bill and ask this court to restrain the complainants or their workmen; they did not take that course, nor would they suggest anything by way of defence at all, except that they wanted the question first settled as to whether the contract was ultra vires.

I think that under the pleadings and the affidavits it is not ultra, vires; I do not think there is the least doubt about it. It is simply a lease of a certain tract of land—because it appears clearly by the map that it is not used at all except a little travel on one side—for the tracks.of the company, and it is a matter of vision that it is not necessary for the present use of the railroad company, and the idea of ultra vires does not apply at all to such a case.

I know of no reason why any man who wishes to- buy that block should hesitate to take title to it.

The lease under which complainant claims does not interfere with the exercise of the defendants’ franchise in the land. It is clearly property which is subject at law to the ordinary disposition of the owner, and the title includes the right to convey.

It may be that the railroad company could not lease its whole tracks without some legislative authority, but that is not the question here, and it has been well remarked by Mr. Corbin that there is nothing about the use of this piece of land, as indicated by the proofs, to show that it is ultra vires. I have no doubt about it.

The next point is, shall the matter be treated as a mere, trespass ?

The ground on which I went the other day is that this company has this contract, and had presumably acted upon it; it has finished its tunnel under the Hudson river on the strength of it. I do not recollect the date of the contract.

Mr. Corbin-—More than a year and a half ago—April, 1904.

The Court—And it is held up now in the operation of carrying out the enterprise.

Nobody could ever ascertain what the damages are or will be to it. And one ground for this court interfering in cases of trespass is that the damages are uncertain, and that the remedy at law is entirely inadequate.

This bill, however, asks the court to go further and superintend the carding out of this contract—something in the nature of specific performance—and, as has been stated by Mr. Corbin, and shown by the authorities, it is the duty of the court in such cases to prevent violence and to supervise the carrying out of such a contract.

So, independent of preserving to these parties the right to work under that contract, there is a prayer in their bill which certainly calls for something this court should and ought to do, even though it does not go as far as Mr. Corbin would like.

An order for restraint was made on Monday last. An appeal was taken, and on Tuesday evening Mr. Bergen and Mr. Edwards called at my study, at Morristown, and said to me that an appeal was taken, and asked that the operation of the restraint be suspended. I heard their application, and, without arriving at any judgment in the matter, I granted an order to show cause why the operation' of the injunction should not be stayed pending the appeal, returnable here this morning, so that for one day I stayed the operation of the injunction, during which time the defendant has been at liberty to go on with a gang of men and interfere, if it could, with the operations of the complainants.

Senator Edwards—Nothing, was done.

The Court—Reference has been made fo the rule—the fundamental rule—that the disposition and desire of this court is to preserve things, and not destroy them, pendente lite; especially where an appeal is taken—pending the appeal—the subject-matter of the suit should be preserved in statu quo, so that the party appealing can receive the benefit of the appeal.

That is an ideal and desirable object, but every lawyer who has thought of it will tell you it is absolutely impossible; it is a thing which cannot be done in every case.

I will put it to you in this way: A man thinks he owns a house and lot; another man claims that two feet of it is his, and he commences to cut away the two feet. The gentleman whose house is going to be destroyed asks for an injunction; the chancellor thinks there is no case for an injunction; he has not shown title, and he refuses an injunction. An appeal is taken; the appellate court takes a different view, and when he gets his decree of reversal the house has been cut down.

That is one case; there are plenty of other cases, which can be imagined, where it is quite impossible to preserve the thing in statu quo. I have heard that questioir discussed over and over again by the bar, and the opinion generally expressed is that the ideal of the late chief-justice can never be attained.

However, that is the principle on which courts ought to go as far as practicable, and after the decision of the court of errors and appeals in the famous National Doclcs Case, our friend here, Mr. Gorbin, who is famous for his work in that line, drafted and had this act passed, and it has now become part of our code.

The section declares, in its first half, that “no appeal taken from an order or decree granting an injunction shall suspend or modify the operation of the injunction without an order of the chancellor,” &c.

That part of the section does not help the defendants, and counsel will hardly contend that their appeal has modified the injunction, hence they ask a special order of this court. And that brings us to the latter part of tire section, which declares that a suspension or modification by the court shall extend only so far as may be necessary to preserve the subject of the appeal, and shall not in any cape be allowed to destroy the right established or protected by the order or decree appealed from. That amounts to a direction to the chancellor, if he sees fit, to modify the injunction, and to so do it as to preserve, and not destroy, the right protected by the order or decree appealed from.

2Tow, what is the right here protected by the order appealed from? It is simply the right to be on those premises and to work there without being physically obstructed in that work. Xow, that right I am forbidden to disturb or destroy, and I conceive it to be a continuing right, running from day to day.

All that I determine is this: The defendants have shown no answer to the complainants’ case; it is open to them to do it. If they have.an answer, let them put it in and present a bill of their own, and then they wall bring the case within the scope of this act.

But the only thing here in question is the right of these' people not to be dealt with by the strong hand; that is all. I have not protected them in anything else. I think they have shown a prima facie case, which has not been answered. They have a right to go on that ground and work under that contract; that is the right I protected by the order, and that right ought not to be taken aw'ay from them pending the appeal. They ought not to be subjected to treatment by the strong hand; this court is against that sort of thing at all times; it deprecates that kind of thing.

Go to the law7 if you do not w7ant these men to dig there—the courts are open—but do not drive them out by force and come here and say we have reasons, but we do not want to tell them. The courts say you must not do it.

I wall not suspend the. in junction in this case for that reason. I refuse to suspend the operation of the injunction and will advise that the order be immediately discharged.


author: Pitney, Y. C.

text:
    Henry J. Wright, administrator of Hetty N. Furniss, deceased, Clinton Furniss and Ruth Furniss. v. William H. Leupp, trustee, and William P. Furniss.
    [Submitted December 7th, 1905.
    Decided December 15th, 1905.]
    1. A provision of a spendthrift trust, requiring the trustee to hold the principal and income of the fund free from all claims of creditors and providing that the beneficiary shall have no power to anticipate, charge or encumber the principal fund or the income, does not preclude the beneficiary from assigning to his wife a half interest in the income of the fund, as it may accrue and become payable, for her support and that of her minor children.
    2. A husband is not only entitled to the administration of his wife’s estate, but is also entitled to the whole net personalty of such estate.
    3. An assignment by a husband to his wife of one-half of the income of a trust fund as it may accrue and become payable, which provides that the wife shall support and maintain herself and the children of the parties without charge to the husband, and which makes no mention of the personal representatives of the wife, does not give the children any interest in the trust after the death of the wife, but after such event the husband is again entitled to the total income of the trust fund, free from any claim of the children.

      4. An agreement by the wife to support the children of herself and husband without expense to the husband, in consideration of an assignment of the interest in a trust fund to the wife, does not relieve the husband, as between himself and his children, of the parental duty of supporting the children.
    5. Where a deed creating a spendthrift trust gives the body of the estate at the death of the beneficiary to his next of kin, without any right of testamentary disposition in the beneficiary, the latter cannot assign to his wife any interest in the income of the trust fund which may accrue and be payable after his death.
    On final hearing on bill, answer and agreed statement of facts.

      Mr. Frank Durand, for the complainants.

      Mr. Willard, P. Voorhees, for the defendant William H. Leupp, trustee.

      Mr. Randolph Perkins, for the defendant William P. Furniss.
   Pitney, Y. C.

The complainant Wright is the administrator, appointed by the surrogate of the city of Few York, of Hetty McFarland Furniss, deceased, who was the wife of the defendant William P. Furniss.

His standing in this court is acquired by having filed in the proper office a copy of his letters of administration.

The complainants, Clinton Furniss and Ruth Furniss, are the children of the deceased Hetty and the said William P. Furniss.

The defendant Leupp is the substituted trustee under a deed of trust made by the defendant William P. Furniss and his sister, Grace Livingston Furniss, then residents of Few Jersey, to Solon Humphreys, also such resident, which deed of trust was dated the 31st day of July, 1882.

That agreement was before the court in Furniss v. Leupp, 67 N. J. Eq. 159.

The present action is, in effect, brought by the administrator of the wife and the children of the husband and wife against their father.

It is based on a post-marriage contract between the husband and wife, dated the 24th of February, 1895, which recites a marriage between them on the 25th of January, 1883; the birth of the two children above named—the son, Clinton C., in December’, 1883, and the daughter, Ruth, on the 17th of April, 1885; that they have lived separately since May, 1885; that the husband had commenced a suit for divorce against his wife in this court in February, 1894, and the wife had commenced a suit against her husband in September, 1894, in the supreme court of Few York, for judicial separation and alimony. The deed provided that both suits should be discontinued, and then provides, in the third clause, as follows:

“Third. One-half of that part of the income, as it may accrue and become payable, of a certain trust fund, whereof Solon Humphreys is trustee for the party of the first part, 'and which is mentioned and described in the answer of the said Solon Humphreys in the action last-above mentioned, is hereby assigned and transferred to the party of the second part, from and as of the first day of September, 1894. and the said trustee is hereby authorized and directed to pay over to the said party of the second part, or to her order, such half part of said income as shall have accrued since the said first day of September, 1894, and as may hereafter accrue during the lifetime of the party of the first part. During such period the party of the second part agrees to support and maintain herself and the said children without charge to the party of the first part.”

The defendant Leupp, as substituted trustee, has answered the bill, setting up certain facts which are admitted for the purpose of the suit to be true, and has submitted himself to the direction of the court.

The defendant Eurniss defends on several grounds, presently to he considered.

Neither of the parties complainant or defendant were present in person at the hearing.

Counsel for defendant, before entering upon the actual trial of the cause, suggested that he had reason to suspect that an error had crept into' the copy of the contract between the husband and the wife, and that there should be a production of the original instrument in order to verify its correctness, as set out in the bill. Neither party had the original in court, and the argument proceeded with a reservation of the right to the defendant Eurniss to be considered as not waiving the objection, and to ask to be relieved from the admission, contained in his answer herein, of its accuracy as set out in the bill.

The first point made hv the defendant Eurniss is that the assignment made by the third clause of the agreement between the husband and wife, as set forth, is forbidden by one of the clauses of the deed of trust of July 31st, 1882 (see Furniss v. Leupp, 67 N. J. Eq. 169), as follows:

“1. The said trustee, party of the second part, shall hold principal, increase and income of said fund, free from all claims, attachments, judgments, executions and liens of every nature by creditors, against either of said parties of the first part, and the said parties of the first part shall not have, nor shall either of them have, any power to anticipate, charge or encumber the said principal fund or any part thereof, or the increase, interest or income thereof, or in any way defeat the intent of this instrument as herein expressed, which is to make provision for the support, maintenance and personal comfort of the parties of the first part, free from liens and claims of creditors.”

A careful reading of that clause fails to satisfy me that such contention can be sustained.

The clause is what is known as a spendthrift clause, and was intended to protect the cestui que trust against his own improvidence, and against directly or indirectly anticipating the income—that is, against spending it in advance of its accrual by running in debt or mortgaging it for a sum at present in hand.

Now, the providing for the support of his wife and children by assigning a portion of his income as it accrues, and no faster, to be paid to the wife, is not charging or encumbering it in the sense in which that language is used in the clause in question, nor did it defeat the intention of the instrument, unless I am to hold, which I decline to do, that its object was to provide for himself personally, to the exclusion of any wife or children he might have.

The next point made by the defendant, however, has more substance. And that is, that the clause in the contract between husband and wife, above recited, relied upon by the complainants, became functus officio upon the death of the wife.

The argument on this part of the case is that, as at the making of the contract the children were still young—one twelve and the other ten years old—and were by implication left in the custody of the wife, that the provision was made for her support and that of the children during her lifetime, and for no longer, which would be as long as she could perform the covenant made by her, in consideration of the assignment, to support the children, and, of course, as long as she would need support herself.

This view is strengthened by the circumstance that the personal representatives of the wife are not mentioned in the deed.

Moreover, by the common law which prevails in New Jersey, and which, in the absence, as here, of contrary allegations and proof, is presumed to govern this case, the husband is not only entitled to administration of his wife’s estate lying in this state, but, whoever may administer it, he is entitled to her whole net personalty. Hence any fund which might come to the hands of the complainant administrator must, after paying her debts, go to the husband defendant, unless an enforceable trust in favor of the children can be found in the contract of assignment.

I am unable to find in the contract any such trust of which this court can take notice or attempt to define or enforce.

The only mention of the children, except the statement of their birth and age, is that found in the last clause of the section above recited—“during such period the party of the second part agrees to support and maintain herself and the said children without charge to the party of the first part.” All that this amounts to is an assumption by the wife (in consideration of the assignment) of the whole parental duty of supporting the children.

As between the father and those children he was not relieved of that duty, and, as there is no proof that the father was ever possessed of any fund belonging to the children upon which a court could lay its hand, I am aware of no basis upon which any court could ascertain and determine how much of the fund assigned to the wife should be spent in supporting the children.

Be that as it may, the wife died on the 12th of April, 1904, at which time the oldest child was of age and the second one nineteen years old. All obligation on the part of the husband to support the son, the elder, had then elapsed, and his obligation to support the younger survived in full force, without any protection arising out of the covenant by his wife in that behalf.

But the complainant points out and relies upon the definition of the period found in the assignment—’“as may hereafter accrue during the lifetime of the party of the first part”—and it is just here that counsel for defendant fancies a mistake has crept into the copy. He fancies it should read during the lifetime of the party of the second part, the wife.

But I am now considering it as it reads, and must construe it in connection with the terms of the trust as set forth in the answer of Solon Humphreys to the suit for support and maintenance mentioned in the contract between the husband and wife (and recited in the answer of the trustee herein), and that trust is the one created by the deed of July 31st. 1882, which is still in force and of which the defendant Leupp is trustee.

By that deed, as I interpret it, at the death of the defendant Eurniss, the body of his estate will go to his next of kin. ' He did not therein reserve any right of any testamentary disposition, so that he reserved only a life estate therein, and could not properly bind himself to pay anything to his wife after his decease.

This situation accounts for the limitation of the husband’s liability to his lifetime.

Mj’ conclusion is that the complainant administrator is entitled to recover a few dollars, which, by applying the doctrine of apportionment of time, will be found to be due to the wife at the time of her death, but the children are not entitled to anything, and as to them the bill must be dismissed, with costs.


author: Pitney, V. C.

text:
    James B. Duke v. Lillian N. Duke.
    [Argued December 18th, 1905.
    Decided December 21st, 1905.]
    1. Under P. L. 190% p. 508 § 4 ¶ 1, giving this court jurisdiction of a suit for divorce by reason of adultery, where the adultery was committed without the state and complainant and defendant, or either of them, resided in the state at the time of the adultery and at the time of filing of the bill or petition, an actual residence in the state of either party at the time specified is, according to our decisions, sufficient to give the court jurisdiction of the subject-matter and to enable the complainant or petitioner to acquire jurisdiction of the person of the defendant by a service outside the territorial limits of the state. Qumre. Whether service out of the territorial limits will be held by the supreme court of the United States to give the court jurisdiction of the person of the defendant unless there be a matrimonial domicile in this state. See Haddooh v. Raddoelc, Ü01 V. 8. 56%.

    2. Though the question of want of jurisdiction of the person can be raised only by plea, and the benefit of it is lost by a general answer, the defence of lack of jurisdiction of the subject-matter need not be raised by plea, but may be set up in the answer to the merits.
    3. The evidence in the cause held to be sufficient to establish a matrimonial domicile in this state at the time of the commission of the offence and the commencement of the suit.

      On petition for divorce. Hearing on plea, by evidence in open court.

      Mr. Richard V. Lindabury and Mr. Alvah A. Clark, for the petitioner.

      Mr. C'hauncey G. Parker and Mr. Samuel Kdlisch,, for the defendant.
   Pitney, V. C.

(after hearing counsel for the defendant).

I do not care to hear you farther on the part of the petitioner.

This is' a suit for divorce by a husband against his wife, commenced by petition, charging her with adultery, committed in various places in the city and State of New York.

It avers that the marriage took place in the State of New Jersey on the 29th of November, 1904, and that from that time up to the filing of the petition the parties have been and now are inhabitants and residents in this state.

The plea avers that the court has neither jurisdiction of the subject-matter nor of the person of the defendant, and alleges that the petitioner was not, at the time of the marriage, and has not been ever since, a resident of or a citizen of or domiciled in the State of New Jersey, but was a resident of and a citizen' of and domiciled in the city of New York, and That the matrimonial domicile and residence of the parties was, at the time of the marriage, and thence until the commencement of the suit, in the State of New York, and not in the State of New Jersey.

The plea further sets up that the defendant was not served with process within the jurisdiction of this court and has not consented thereto, and that the proceedings are without due process of law.

The'plea then invokes the provision of the constitution of the Hnited States, forbidding any state to deprive any person of life, liberty or property without due process of law, &c.

The charge on the part of the defendant of lack of residence and domicile in New Jersey strikes at the jurisdiction of the subject-matter as well as of the person.

This appears when we consider that the subject of divorce is not within the general jurisdiction of a court of chancery.

In this state it is wholly statutory, and in this case comes under the second part of paragraph 1 of section 4 of the act concerning divorces (P. L. 1\902 ¶. 503),

■“where the adultery was committed without this state and the parties complainant and defendant, or either of them, resided iu this state at the time of the adultery and at the time of filing the bill or petition.”

If, then, the party petitioner or defendant resided in this state during the period covered by the petition herein, this ■court, by our statute, has jurisdiction of the subject-matter.

But in order to obtain jurisdiction of the person of the defendant by extraterritorial service of process, it is possible that something more than a mere residence is necessary.

I stop here to say that in order to raise the question of jurisdiction of the subject-matter it was not necessary for the defendant to plead as she has done. That defence may be, in my judgment, set up in her answer to the merits.

It is the lack of jurisdiction of the person that can be raised only by plea, and the benefit of which is lost by general answer.

According to all the authorities, in order to obtain jurisdiction of the person by extraterritorial service, there must be what is called a res within the territorial jurisdiction.

In fact there can be no decree strictly in personam- based upon an extraterritorial service of process. But the court may deal with the rights of parties residing out of the territorial jurisdiction in matters such as land and personal chattels within its jurisdiction.

The foreclosure of mortgages, where the owner of the equity of redemption is not within the reach of domestic process, is an example.

So with the enforcement of debts by attachment against nonresidents levied on their property within the territorial jurisdiction.

In cases of matrimonial offences, the res or matter within the territorial jurisdiction, which it has been held by the courts of all the states except Hew York, and finally by the supreme court of the United States (reversing the court of appeals of New York), is sufficient to give the courts of a state jurisdiction to proceed against, a non-resident on service out of the state, is the married state.

If the married state exists within the territorial jurisdiction, the court of that jurisdiction may proceed to deal with it by extraterritorial service on the absent party.

This arises out of the very necessity of the case, since, unless such jurisdiction could be exercised, the offending spouse who should be able to escape beyond the jurisdiction before service would thereby be able to deprive the other spouse of his or her just remedy.

By our statute a mere “residence” in the state is sufficient, and it has never been here determined, as I am aware, whether that residence must be or have been a matrimonial domicile— that is, whether it is necessary that the spouses should have had their joint home in this state—or rather, I should say, that it has been held in this state that it was not necessary that there should be a matrimonial domicile here.

But the supreme court of the United States has never, as I am aware, dealt with that precise question.

In the Aiherton Case, in which they held extraterritorial service sufficient, there was a matrimonial domicile in Kentucky, and the service was in the State of New York.

However, in the present case, the petitioner, who assumed the burden of proof, very properly undertook to show a domicile as distinguished from a mere residence at the time of the marriage, and from thence until the separation.

He alleges that the county of Somerset, in this state, has been for several years before the marriage the chosen domicile of the petitioner, and that it continued to be such after the marriage until the separation, which, by the evidence presently to be mentioned, occurred some time in July of the present year. And he argues that in the absence of a separation the domicile of the husband is the domicile of the wife, wherever they may have been actually sojourning. And he avers that it was the actual residence of the wife for a portion of the time between the marriage and the separation.

One other remark before coming to the facts.

There may be a domicile without an actual present residence, and, vice versa, there may be a present residence without a domicile, as in the case of our foreign ministers, who reside abroad without losing their domicile in the United States, and our cabinet ministers and many of our members of congress, who reside in Washington, but are domiciled in their respective states.

Again, a man may have two or more residences, but only one domicile.

He may have a country residence and a city residence, and each with all the paraphernalia of a home. Such instances are very common, and then it becomes a matter of choice.

He chooses which one of the residences shall be his domicile and his choice is final if made in good faith, although he may spend less time at his domicile than at his residence.

Now, the marks of the domicile are numerous. They include the character of the place and the acts and declarations of the party in connection therewith; provided, of course, the declarations are made in good faith, sincerely and ante litem, mo lam. In this country one of the most important indications of a domicile is the exercise of the electoral franchise.

Let us now look at the facts of this case, and that includes many years of the life of the petitioner.

He was born and bred in Durham, North Carolina, where his father was engaged in dealing in and manufacturing tobacco.

The petitioner was interested with his father as one of the firm of W. Duke’s Sons & Company.

Twenty-one years ago, when he was 'twenty-eight years old, in the year 1884, he came to New York City and established a tobacco business there.

He was a bachelor from thence until his present marriage, and he lived in New York City from 1884 for ten years.

He never voted there.

His domicile of origin was, of course, in the State of North Carolina, and so remained until he determined to change it, and he had a right to retain that domicile although living in New York.

He admits that he did, as he supposed, change it some time before the end of the ten years, but he is unable to fix the date when he did change it to New York, if ever. At the same time, he was described in official and other documents as of the city of New York as early as the year 1890.

In the year 1893 he purchased the old Veghte farm, of three hundred acres, lying just south of the Raritan river, nea» Somerville.

On it was a large, old-fashioned mansion-house.

In the conveyance, as originally prepared, he is described as of Somerset county, but that description is erased and the words “New York City'” inserted, so that we may conclude that at that time he considered his residence in New York, and had not finally determined to make Somerset county his home.

But in the year 1894 he moved the furniture of his suite of rooms in New York City to the old Veghte house and set up housekeeping there.

From that time on he has been described in all official and semi-official papers as of the county'' of Somerset, New Jersey.

He was the New Jersey director of the corporation or corporations in which he was interested.

He commenced directly from 1893 on to purchase more land, and from time to time for the next six or seven years bought several tracts of varying sizes, nearly every one adjoining some of the others, until he had acquired over seventeen hundred acres.

He was shortly after 1894 enrolled by the official canvasser as a voter in the township of Hillsboro, in the county of Somerset, and was thenceforward taxed yearly upon his poll.

He actually voted there in the years 1896, 1900 and 1904, when he was sent, by the congressional district of which Somerset county is a part, to the Republican convention in Chicago as a delegate.

He always spoke of that place as his home. He first repaired the Veghte house and set up a small home establishment. Later on he built a large and expensive addition to it, costing, as I recollect the evidence, some $50,000 or $60,000, erected in the most substantial manner, with all modern conveniences, with-heating apparatus throughout, and with electric light.

He furnished it throughout, at an expense of over $60,000, with the most substantial and expensive articles, and hung its walls with oil paintings.

He established a corps of servants, with a regular housekeeper and several maids, and a man-of-all-work.

He provided a larder which was at all times supplied and ready to entertain himself and his guests without warning.

He built a stable, at an expense of $55,000, and installed it with horses and carriages, and later on with automobiles.

In short, the establishment had all the paraphernalia of a permanent home.

In the meantime he was spending enormous sums of money in beautifying the grounds, which were sufficient in acreage to make a parallelogram one mile wide and nearly three miles in length. These grounds he laid out in a park, with macadam drives, artificial lakes, water works to supply his house and buildings, and planted a great number of trees and shrubs, such as rhododendrons and other expensive plants.

N ow, ho swears that he all the time intended to make this his home.

We have, then, first, the buying of this property and the shaping it into a solid, substantial, elegant and expensive home, fitted for both summer and winter residence.

We have it furnished as such and provided with a housekeeper, corps of servants and a larder, always ready for him and his friends, when they came, including heat in winter.

We have him declaring over and over again to various individuals, when talking about the improvements he was making, that he was making a home for himself.

We have him making that his place of voting, and nowhere else, and we have him swearing that he always intended that as his home.

We have, further, no evidence that he had any other home besides that of his birth, unless it be in the city of New York.

The defendant alleges that all this time and up to the time of commencing this suit his real home and residence was in the city of New York.

- Let us look what the proof is as to that.

Petitioner was an assiduous and attentive business man, and his business was mainly in the city of New York. It really ■extended all over the United States and the company of which he was and is the head had large factories and places of business in many of the large cities of the United States.

These were all managed, however, from the central office in the city of New York.

In that office petitioner spent most of his business hours when in the neighborhood of New York.

He usually, however, went out to Somerville on Friday evening, and sometimes, but not frequently, on Thursday evening, and remained over until Monday morning.

Sometimes he went out for a night in the middle of the week.

The proof satisfies me that he spent as many nights, in the ■course of the year, in Somerville as he did in the city of New York.

He gave as a reason for not spending all of his nights in ■Somerville that his business cares were so exacting that he could not afford to spend the time—about two hours in the morning .and two at night—required to go from his place of business, on Fifth avenue, New York, to his farm, so he had a residence in the city of New York, where he could always go, and had a right to go.

He kept there horses and carriages and a coachman.

That residence was with the defendant, with whom he lived as his mistress.

I should not speak so plainly, but it was openly stated by her counsel, in his able and ingenious argument, and abundantly •appeared by a letter, written by the petitioner to the defendant, in August, 1904, and offered in evidence by the defendant, in which he asked her to marry him and set at rest certain disagreeable rumors or scandals.

The connection with the defendant commenced in 1892.

He furnished her the money to buy a handsome and commodious house in a fashionable part of New York City, and also the money wherewith to furnish it, and there he always had a room and a home, if it be proper to call a residence like that, Tinsancti onecí by marriage, a home.

Some two or three years before the marriage ceremony took place the defendant sold the house previously occupied by her, and, after a short vacation, purchased another—No. 11 West Sixty-eighth street—a fairly commodious house, costing over <$40,000, and continued her residence there, and the petitioner went with her.

To each of these houses he carried a night latch key and came and went as he pleased.

On the 29th of November, 1904, the parties were married at the house of the defendant’s aunt, in Camden, New Jersey, and immediately took steamer for Europe on a wedding trip, from which the}' returned the latter part of January, 1905.

Before their departure, however, wedding cards were sent out, in the name of the aunt, announcing the marriage of her niece, Mrs. Lillian Nannette MeCready, to James Buchanan Duke.

With that announcement card was sent a card in the following words, “Mr. and Mrs. James B. Duke will be at home after the 1st of February, at 11 West 68th St., New York.”

Counsel for defendant laid great stress on the use of that phrase at home.

It is proper to say that Mr. Duke disclaims all responsibility for it. He says it was some of his wife’s foolishness.

But charging him with full responsibility for it, what, after all, does it mean ? Why, simply that at that time and place they would be ready to see and receive visits from their friends.

It would have been quite as appropriate if it had been used to invite their friends to call on them at some hotel in San Francisco, or London, or Paris, where they found it convenient to be shortly after their marriage. For instance, it might have read, “'Mr. and Mrs. James B. Duke at home at the Hotel Cecil, London, from the 1st to the 10th of February,” or it would have been equally appropriate if the defendant had not owned or occupied a house in New York City, if they had made their home at the residence of Mr. Duke’s brother, Benjamin N. Duke, which he then owned and shortly afterward occupied with his wife and two children in New York City.

In short, it has the same significance, and no more and no less, as the society phrase put in the mouth of the servant who opens the door to a casual visitor and declares to that visitor that the lady of the house is not at home, and which is under- . stood by everybody to mean simply, and no more, that she is not ready to receive visitors.

It does not necessarily refer to a domicile.

Eeliance was also placed by counsel on an expression found in the letter before referred to, written by petitioner to defendant in August, 1904, and addressed to her at a hotel in the White mountains. He advises her to come home. When confronted with that letter he said he meant her home, and I think that is the proper construction to put upon it. Fot being then married his Somerville home was not her home.

But let us look at the movements of the parties after their return, in January, 1905, to the United States from their wedding trip. They went together, first, to the Somerville house, and then to Forth Carolina, to visit his father. From there they went to Florida, then returned to the defendant’s house in Few York City.

The petitioner was, at or before that return, disabled with gangrene in his foot, and laid in bed, under the doctor’s care, for six weeks, which brought them down to some time shortly after the 1st of May, when he took his wife out to his Somerville home, and they stayed there, oil and on, until some time about the 1st of July, making their home there.

The defendant was indeed restless and desirous to get away; the petitioner was insisting on her making her home there. She threatened to go back to Few York; he told her he would sell oif his stable belongings there and cut her off from the use of the carriages; she said she would resort to livery; he said he would not pay the bills.

Just when they ceased to cohabit was not shown, but they never did cohabit after he sailed for Europe, on the 16th of July, 1905.

But in determining the value of the defendant’s contention that, granting that petitioner’s domicile was in Somerset county up to the time of the marriage, yet that it was then changed to Few York City, another important and well established, and, in fact, admitted fact, is here to be noticed.

About the time of the marriage, and probably for some time before and after, the petitioner was entertaining the intention of building an elegant and costly mansion on the Somerville farm.

He was devising and studying plans for it.

He started on a half-million basis, and we all know what that means as to cost, and in all this his wife was consulted. And in the spring of 1905, when he was about to prepare the.ground surrounding the site he had contemplated for this mansion, she was also consulted about that, and at her suggestion he changed the proposed site, and immediately put a large force of men, and I suppose machines, at work in grading and terracing for this new mansion.

When, if over, this work was stopped, did not appear, as far as I at this moment recollect.

But, as before remarked, it is a well-established fact that while he was living with his wife on the farm—the place was called “'Duke’s Farm”—in the spring of 1905, he was actually engaged, at great expense, in preparing the ground for an elegant mansion for himself and his wife.

How, this 1 consider a very important and significant circumstance, on the question of any change of intention on his part as to his domicile.

But the defendant does not stop there.

When the petitioner returned from Europe, in the latter part of August, 1905, just before the filing of the petition herein, he did not return to his wife’s house, or, so far as appears, see her at all, but promptly set about providing a comfortable place and residence for himself in the city of Hew York.

,His brother, Benjamin H. Duke, a wealthy gentleman, with a wife and two half-grown children, was the owner of a handsome house, in a fashionable neighborhood, which he had not yet occupied, or at least which was not fully furnished.

Petitioner immediately set about having that house furnished.

He brought in from Somerville, for the purpose of overseeing the placing of the furniture, his housekeeper, a very efficient woman.

He managed to entice away from his wife all, or nearly all, of her housemaids, and installed them in his brother’s house.

Asked why he did this, he said he wished to find out from them how his wife had been behaving herself during his absence, and his object in promoting the establishment in his brother’s house was manifestly to keep within his reach and control those servants.

Pressed, on cross-examination, he frankly stated that there was no bargain between him and his brother on the subject, but he had no doubt that his brother would sell him the house and furniture and whole establishment at any time he might wish it, but that all the expense attending the setting up of the establishment was borne by his brother, except the regular salary of his Somerville housekeeper.

This provision for a new residence in Few York City was made after suit brought, and the house, when furnished and prepared for habitation, was occupied by his brother, Benjamin, and his wife and two children, and the petitioner had, as I understand the evidence, a comfortable resting place there, but he voted in Somerset county in the fall of this year.

He must have known—and he was all the while provided with the most able counsel—that anything in the way of a change of residence might be fatal to the success of his suit already instituted in the State of Few Jersey, and I cannot think that he at that time seriously contemplated for even a moment abandoning his thoroughly established domicile in Few Jersey for Few York, and I infer from the evidence that this work of preparing his brother’s house was all done after the filing of the petition, which, was on the 2d of September.

Fow, with regard to the facts that have been recited, it is proper to say that they are substantially undisputed, except some altogether trifling and immaterial disagreements in the evidence of the parties as to the household establishment at Duke’s farm.

I recollect but two conflicts upon the real merits of the case.

Defendant swore that petitioner never intended to make his farm his home, but that he intended, after spending enormous sums in turning the greater part of his immense holding of land into a beautiful private park, to make a present of it to the town of Somerville, or the county of Somerset, I forget at the moment which.

Now, the petitioner swears that he never heard of any -such thing until he heard it from the defendant on the stand, and he denies her evidence in that respect in toto.

Now, I believe him, and not her.

I think her story falls as proof of its own weight. Neither the town of Somerville nor the county of Somerset have either the authority to accept such a gift or the power or financial ability to keep the park in order and properly maintain it, if accepted. The whole idea approaches the absurd.

The other matter is this: The defendant swore that the petitioner, during all these years, did not enjoy his visits to the farm, and did not enjoy remaining there any length.of time, and declared that ho did not like to be absent from New York even a few nights at a time.

Now, it would have been ungallant, to say the least, in petitioner not to express a desire to enjoy defendant’s society continually, and as soon as the post-nuptial journeyings were over, and lie had recovered from the long and serious disability which he suffered from his gangrene, -he immediately transferred his wife to his Somerville home, and apparently tried to domesticate hex there, where he could enjoy more of her society.

He testified that he had been very much confined by the exactions of his business relations, but that for the last year or two he had made such business arrangements as to enjoy more liberty and have more time at his command, and to be able to be ' more at his farm. This fits in with his determination to build there a modern palace for his home life with his wife.

'Upon the whole, I conclude that the petitioner’s domicile was for all these years in the State of New Jersey; that all his declarations in that respect were made in good faith; that whatever of a home-he had in New York was not inconsistent with his actual domicile in New Jersey, and, granting that he had a residence in New York, he deliberately chose his domicile in New Jersey, and that choice was made in good faith at a time when its importance and consequences were not of consequence to any then immediate interests.

I am further of the opinion that that domicile became, on their marriage, the domicile of the wife, as a presumption of law, and that it became such domicile in fact when, in the spring of 1905, he took her out there to live with him as his wife.

Thus we have here a matrimonial domicile actually existing up to at least a very short time before the commencement of the suit.

Hence I doubt if the question which I mentioned during the argument is raised by the circumstances of this case.

That question is whether, where spouses have their home in one state and there live together, and then separate, and one migrates to another state and there establishes a residence and a (/«nsi-domicile which, is not matrimonial, such residence or domicile will be sufficient, in the view of the supreme court of the United States, to create such a matrimonial status in that state as will justify the spouse so establishing it, and the state, in taking jurisdiction of the other spouse, not a resident in that state, by extraterritorial service of process.

That question, as far as I am at present; informed, though thoroughly settled in this state; has never been dealt with by the supreme court of the United States.

It was on the supposition that this ease, as finally developed, might raise that question, that I expressed the hope that it might be carried to the supreme court of the United States.

But while that question, if it had arisen, is one of great importance, because of the numerous cases in this country where spouses are called upon to answer each other’s complaints by suits in jurisdictions thousands of miles away, in this particular case it is of little importance.

It seems to me that it makes little difference to the defendant whether she tries the merits of this case in New York or New Jersey. Indeed, I think the chances of actual justice are better in New Jersey than in New York, because there the issue must be tried before a jury all at one session, uninterrupted except by the hours of rest and holidays, and where either party is liable, especially in a case of this kind, to surprises in the matter of evidence, but which might be, but cannot be, successfully met for want of time, while here hearings may be put over from day to day and time to time, till all the available evidence bearing on the issue has been produced.

It may be said that the infidelity is charged to have taken place in Hew York City, and hence the witnesses are naturally to be found there, but as the burden of proof is on the petitioner, that seems to me to furnish no cause of objection by the defendant, and whatever witnesses she may have in Hew York may be examined there, if unwilling to come to Hew Jersey.

There is no hint of lack of financial means on the part of the defendant to properly defend herself in this cause. If such lack of means exists, counsel for the defendant know how to remedy it.

I will advise a decree overruling the plea, and directing the defendant to answer within thirty days, and proper verbiage must be added to preserve her right to prosecute her appeal, notwithstanding her answer.