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    Joel W. Hatt et al., executors of William King, v. Eleazer C. Rich et al. Edmund P. Backus v. Henrietta S. Hatt.
    [Filed March 26th, 1900.]
    1. Specific performance of a contract for sale will be decreed, although the title is claimed to be disputable, where it appears that the doubts suggested relate to steps in the title which are fully presented to the court, the validity of which can readily be determined, and which, when examined, present no obstacle to the making of an efficient deed under the contract, passing a merchantable title in fee-simple.
    2. A power of sale given to executors which authorizes them to sell and convey all the testator’s real estate at their discretion, is efficient tp support a sale by the executors, not only of all the territorial extent of the lands whereof the testator died seized, but also of all his title interest therein, and their sale under the power will divest the estate of residuary devisees, and of all those claiming under them.
    3. Such a power does not lose its efficiency because the debts and legacies are paid, nor by mere lapse of time, when it may still be used to accomplish purposes which the testator may have had in view, or to carry into effect the conversion and setting apart a share to be held in trust for one of the testator’s children, according to the terms of his will.
    4. The right of the executors to execute the power, and thereby to convey the fee whereof the testator died seized, is superior to the right of partition, held by the purchaser of an undivided interest from a residuary devisee.
    On bill for specific performance and answer. On bill for partition and answer.
    In the first of these suits, the executors of William King’s will seek to compel the performance of a contract they made with the defendant Rich, to convey the homestead property of Mr. King, in East Orange, under a power of sale in his will. This suit is defended because it is contended that the executors’ power of sale is not efficient to convey a merchantable title.
    In the second suit, Backus, the complainant, is the purchaser .of an undivided one-seventh share of the estate of William King, including his homestead property, and seeks to compel a partition or sale. The defence is, that the executors must exercise the power to realize the funds to be invested for Elizabeth Wright’s share; that they have contracted to sell the homestead property under their power, which is superior to the devise undhr which Backus has acquired his title, and that the terms of the will and codiéil, and the circumstances of the estate, require that the power of sale shall be used to sell all the testator’s lands, and that the'execution of the power will divest the estate of Mr. Backus and of the others who claim, like him, under the devise.
    These causes both present the question of the validity of the power of sale given in the will of William King to be exercised at the discretion of his executors, and were for this reason heard together.
    William King by his will, dated March, 1874, gave and devised all his estate to his wife during her life, for the support, &c., of herself and their unmarried daughters. The third clause of his will is in these words :
    “ 'Third. After the decease of my wife, I give the use of my homestead property, on Grove street, in said township of East Orange, including the lot on •which the barn and carriage-house stands, and all my furniture, implements, utensils and articles of personal property belonging to and in use in and about my said homestead to such of my daughters as may then be unmarried during their lives, and so long as they remain unmarried and continue to occupy my said homestead as a residence. Upon the death or marriage of all of my said unmarried daughters, or upon their ceasing to occupy my said homestead as a residence, I direct that said homestead property, furniture and articles of personal property referred to in this clause of my will shall sink into the residue of my estate and be disposed of under this clause of my will except as otherwise hereinafter provided. It is my intention to give my unmarried daughters a home so long as they remain unmarried, but that they shall have no right to lease my homestead and receive rent therefrom, but upon their ceasing to occupy the same as a residence the same shall become part of the residue of my estate and be disposed of as therein provided.”
    He bequeathed one money legacy of $5,000 to his grand-' daughter Anna King, payable after the death of his wife, and then follows the residuary clause, in the sixth item of his will, by which he gave and bequeathed, in these words:
    “All the rest and residue of my estate, real and personal, whatsoever and wheresoever, to my seven children, namely, Phoíbe J. King, Henrietta E., wife of Joel W. Hatt; Fannie M. King, John J. King, Lenora W. King, Elizabeth King, and to their heirs, executors and administrators and assigns forever.”
    The last item appoints the executors and creates the power of sale, as follows:

      “ I constitute and appoint my said wife, Mary, and my daughter Phosbe J. King, my son John J. King and my sons-in-law Joel W. Hatt and Edward L. Conklin, and the survivors and survivor of them, executors of this my last will, and hereby authorize and empower my said executors, and the survivors or survivor of them, to sell and convey all my real estate, in their discretion, at public or private sale. The homestead property not to be sold until the same shall sink into the residue of my estate as hereinbefore provided.”
    By a codicil made in 1879, he ratified his will save as to the share given to his daughter Elizabeth, as to which he, by the codicil, made the following provisions:
    “ I now declare that it is my will that instead of her receiving the share or portion of my estate as therein provided, such share or portion shall be invested by my executors in safe bonds and mortgages, on improved real estate, having dwelling-houses erected thereon ; the value of said real estate to be at least double the amount invested, and to be situated in the county of Essex, Kew Jersey; and the incpme thereof paid to her, my said daughter Elizabeth King, during her natural life, as the same shall be received; at the death of my said daughter the share or portion shall vest in her lawful issue, share and share alike; provided, however, that in case my said daughter shall die leaving lawful issue before such issue shall have reached the age of maturity, then it is my will that the income only, arising from said share or portion of my estate, shall be devoted to the maintenance and support of such issue until they shall severally reach maturity, at which time the share coming to each child shall be then paid to him or her. In case my said daughter Elizabeth King shall die without lawful issue, then it is my will that said share or portion shall be divided equally between my children, Phcebe J. King, Henrietta S. Hatt, Fannie M. King, John J. King, Lenora K. Conklin and Isaac W. King, and the survivors or survivor of them, share and share alike, the issue of any deceased child taking the share to which said child would have been entitled if living. I further declare it to be my will that in case my said daughter Elizabeth King shall at any time marry, then the income hereinbefore provided to be paid to her shall, under no circumstances, be subject to any claim, demand, influence or control of her husband, but the same shall be paid to her for her own separate use and benefit.
    “ I hereby nominate and appoint as trustees of said share or portion of my estate set apart for the use of my said daughter, the executors named in my last will and testament.”
    William King died in 1882, seized in fee of several tracts of land, including his homestead, referred to in the bills of complaint. His will was proven in the samé year, by all the executors.
    Mary King, the widow, died on October 28th, 1885. The daughters of the testator, who were then living and unmarried, were Phcebe J. King, Fannie M. King and Elizabeth Wright, a widow.
    The homestead was occupied by Mary King, the testator’s widow, during her life, and on her death by Phcebe, Fannie and-Elizabeth. Phoebe afterwards died, and Fannie married, leaving Elizabeth the sole occupant. She found the homestead property to be too large for her sole use, and voluntarily ceased to occupy it, and expressed her desire to have the homestead sold under the executors’ power. With her consent, upon her ceasing to occupy the homestead, the executors, on August 23d, 1897, entered into a written agreement for the sale of the house and lot at the southwesterly corner of Grove and New streets (part of the homestead property) for $15,000, to the defendants, Eleazer C. Rich and Helen C., his wife. Copy of the agreement is annexed to the bill.
    The cash payment under the'agreement has been paid. The deed has been executed by the executors to Mrs. Rich, with her assent, by her husband’s request. The bond and mortgage securing payment of the purchase-money have been made by them. The conveyances have been .approved by both parlies; a check for the additional cash drawn, and all these papers have been deposited in escrow until the vendors shall satisfy themselves that the deed of the executors conveys a fee-simple estate clear of encumbrances. When that is ascertained the papers shall be delivered and recorded. The proposed vendees have been put into possession of the premises pending an investigation of the title.
    The vendees refuse to accept delivery of the deed, alleging that it does not convey a good, merchantable title. The objections are based upon these facts: Isaac W. King’s undivided share under the devise to him has been made the subject of several conveyances, as to which disputes have arisen, finally resulting in a sheriff’s sale of his undivided interest iu all the King estate, including the homestead property to Edmond P. Backus, the complainant in the above-named partition suit. Phoebe J. King’s share is held, since her death, by her devisees. Neither the devisees named in William King’s will nor those claiming' under them have joined with the executors in the deed under the contract to convey to Rich. That deed purports to convey a fee-simple estate, solely by virtue of the power of sale given to the executors in William King’s will. The defendants Rich claim that the power is void, and deny the efficiency of a deed made under it to pass a fee as against the devisees and those claiming under them, upon grounds hereinafter considered.
    The partition suit is prosecuted by Edmond P. Backus, the purchaser at sheriff’s sale of Isaac W. King’s undivided one-seventh interest in his father’s estate. He alleges that by the terms of the will the only purpose for which the power of sale in William King’s will could be exercised was the payment of his debts and legacies, and that these have all been accomplished^, and that there remains no object in keeping such power alive.. He prays a partition or sale of the premises.
    The defendants are the King family, who have the other undivided six-sevenths of the estate, and the trustees under the-William King will and codicil. They contend that the estate of Backus, as owner of Isaac W. King’s undivided one-seventh,, and the estates of all the other devisees under William King’swill, and of those claiming under them, are subject to the power of sale giveu by him to his executors. They set forth the executors’ agreement to convey to Mrs. Rich a part of the homestead property under the power of sale, aud the pendency of the above-named suit for specific performance of that agreement. They allege that all the owners of the devised shares, except. Backus,, are advised and believe that the executors have full power to-convey in fee-simple to Mrs. Rich. They deny that the power is obsolete, and insist that it is yet in full force.

      Mr. Philemon Woodruff\ for the complainant in the bill for specific performance, and for the defendants in the partition suit,

      Mr. Louis Hood, for Rich and wife, defendants in bill for specific performance.

      Messrs. De Witt & Provost, for Edmond P. Backus, the complainant in the partition suit.
   Grey, V. C.

The testator, William King, died seized of an estate in fee-simple. The effect of his will in disposing of his real estate waste devise to his wife an estate during her life, in the whole of it, for certain prescribed uses, and, upon his wife’s death, to such-of his daughters as were then unmarried an estate in his homestead and its equipment during their lives, which was subject to-be defeated by their marriage, or their ceasing to occupy the homestead as a residence; and to his seven children a remainder in fee in the whole estate, including the homestead, which, subject to the two succeeding life estates, vested in the devisees immediately upon the death of the testator. This was the devolution of the title. All of these devises'were subject to the power of sale given to the executors, to be exercised at their discretion, but postponed as to the period of its exercise upon the homestead property until it should become a part of the residue, by the termination or defeat of the unmarried daughter’s life estate.

The nature of the power is apparent. There is no direction to sell, but there is the fullest authority to do so, at the discretion of the donees. In such cases the land retains its character as land, until it is actually sold. Cook’s Executor v. Cook’s Administrator, 5 C. E. Gr. 377. Meanwhile, by the testator’s residuary devise, the title to the lands vested in his children, subject to be divested by the execution of the power by the executors.

The actual operation of the will was that Mr, King’s wife outlived him and enjoyed her life estate under his will. Upon her death, in October, 1885, there were these daughters unmarried: Elizabeth Wright, a widow; Phoebe J. King and Fannie M. King. In these daughters, upon their mother’s death, an estate for their lives vested, subject to be defeated by the death or marriage of all of them, or by their ceasing to occupy the homestead as a residence. Phoebe died in 1894, unmarried and testate. Fannie married in 1894, and “ceased to occupy,” and the estate remained dependent on Elizabeth’s death, marriage or “ ceasing to occupy ” the homestead.

There might be some question whether Elizabeth, who had been married after her'father’s but previous to her mother’s death, and had at the time of her mother’s death become a widow, was, at the latter date, unmarried, so as to be within the class of devisees prescribed by the testator. In Maberly v. Strode, 3 Ves. *453, Sir Richard Pepper Arden, M. R., declared that legacies given to unmarried daughters would not go to widowed daughters, unless there were other indications of the testator’s purpose. That the word “ unmarried ” meant never having had any husband at all. In Bell v. Phyn, 7 Ves. *458, Sir "William Grant, M. R., was of opinion that the expression “ without being married ” must be construed “ without having ever been married.” All constructions of single words or phrases must, howe’ver, be controlled by the evidences!)!’ the testator’s intent as shown by the whole will. In this will the testator, upon the death of his wife, devises the homestead- “ to such of my daughters as may then be unmarried, during their lives, and so long as they remain unmarried'and continue to occupy my said homestead as a residence.” The gift here is to daughters who at the time of the death of the wife should be unmarried, no matter what their previous condition might have been. The testator, by his provision as to the residence in the homestead, and the possibility of their subsequent- marriage, contemplated all of his daughters whose single condition at the death of his wife might enable them to use his homestead as their family residence, and did not intend to make the fact that any of them, though single then, and living at home, might previously have been married, a ground of exclusion from his gift. In Doe v. Rawding, 2 B. & Ald. 452, it was held that the word “ unmarried” may be taken to mean “not married at the time,” if that construction be necessary to make it operative. The testator seems to have intended the gift to go to any daughters who might marry, for he provides that their subsequent marriage should defeat the estate. This would not exclude a widowed daughter.

This point is of minor significance, as the life estate of Elizabeth, conceding that she took under the devise, has, as both parties admit, been defeated by her “ ceasing to occupy ” the homestead as her residence, and it therefore does not interfere with the passing of a perfect title to thcdefendants. If she was not within the class of unmarried daughters the same result follows.

All the unmarried daughters have now died, married or “ ceased to occupy ” the homestead, and their life estate has thus been defeated and has fallen into the residue as prescribed by the will. The executors now propose to execute the power of sale by selling the homestead property. The defendants in the bill, for specific performance of the contract to purchase part of the homestead property, deny the executor’s right to execute the power upon several grounds. The first, second, third and fifth grounds, set up in their answer, contend that the power is inefficient to convey a merchantable title as against the estate which vested in the devisees under the residuary clause of William King’s will and which is now in Backus and others, claiming under the devisees.

In the partition suit, Messrs. Hatt and Conklin, who are the surviving executors of the will of William King and are also, under his will, trustees, &c., for his daughter Elizabeth Wright,, are made defendants, not in terms as executors but as trustees. The premises of the partition bill, however, set forth the executors’ power of sale and their claim of a right to exercise it, and the prayer is that a partition or sale may be made “free, clear' and discharged of the power of sale given under the will of William King, deceased,” &c. In this case the parties are in-court and have submitted themselves to its jurisdiction. The matter of the bill clearly relates to a subject touching which they have answered, and the mere omission to name the special capacity in which they are pleading will not- affect the proceedings. Walton v. Herbert, 3 Gr. Ch. 73; Evans v. Evans, 8 C. E. Gr. 75; White v. Davis, 3 Dick. Ch. Rep. 24.

The complainant Backus, in the partition suit, also disputes-the validity of the power of sale and its superiority to the estate which, by the will, came to the residuary devisees, under one of whom he claims.

In both suits the question is therefore presented whether the executors’ power of sale may now be exercised to convey a title to the lands passing as residue which will be superior to that which vested in the devisees. That the power of sale is well expressed in the will to accomplish that purpose is beyond dispute. The testator, who devised the estates in remainder in fee, created the power and made it applicable, as he expressed it, to “ all my real estate.” This included the whole of the testator’s real estate, not only to the territorial expanse of all his lands but also to the extent of all his title interest therein. Barry v. Edgeworth, 2 P. Wms. 524; Jackson v. Merrill, 6 Johns. 191. He also authorized the executors to sell and convey at their discretion — that is, at such prices, on such terms and for such estates as they might deem proper. The power also included the homestead property, but touching the time when the power might be exercised upon the homestead, the testator prohibited its execution until that property should sink into the residue, as hereinbefore [in his will] provided” — that is, until the life ■estate of the unmarried daughters should terminate or be defeated. This event has now completely happened.

It is claimed that the executors’ power has become void be■cause the debts and legacies have been paid, and there is no occasion for its exercise. The opinion of Chancellor Williamson, in Brearley v. Brearley, 1 Stock. 24, is brought forward as sustaining this proposition. It seems to be assumed by the defendants that although a testator may have created a power in clearly-expressed terms, which gave to his executors unlimited .authority to sell all his real estate at their discretio’n, yet they will not be permitted to exercise the power at their discretion as .authorized by the testator, but only when it is necessary to be used to raise money to pay debts or legacies. This is not the doctrine of Brearley v. Brearley. The learned chancellor in that case states explicitly, touching the creation of powers, that it is the will of the testator which must be executed, however unreasonable it may appear to be. That the testator may dispose of his property arbitrarily, without giving any reasons for the disposition he makes of it,” and that where no ambiguity of language or phraseology makes doubtful what the testator’s intention is, the absence of all motive on the face of the will, or inability to ascribe a motive for the disposition, made, because of the circumstances of the testator and his family, are entitled to no consideration (at p. 25). He further declares .that as to the question of the testator’s intent in creating powers, each ease must stand in great measure upon its own peculiar circumstances (at p. 32). In that case he was of opinion that there was no such clear expression of the testator’s intent upon the face of the will, as excluded an ascertainment of his purpose from attending facts, and these he held, showed that the testator did not intend that the executors should exercise the power of sale, when, if executed, it would, without reason, convert the lands, which had descended to heirs, into money, against their united opposition.

Each of the numerous other cases cited against the exercise of the power stands upon the expressions of the will in the particular case, and if they were ambiguous, then upon the circumstances of the testator’s property and his family, &c., or beneficiaries. , They afford but little aid as precedents because each case varies in essential particulars of its facts from that under consideration. The cases most nearly resembling that under consideration are Bacot v. Wetmore, 2 C. E. Gr. 250, and on the same will, Wetmore v. Midmer, 6 C. E. Gr. 245. See, also, Cruikshank v. Parker, 7 Dick. Ch. Rep. 310.

In the case in hand, the donation of the power to the executors i§ expressed in the plainest terms,-without any ambiguity, and the application of the more modern rule that “ the courts have decided that powers, although framed in general terms, are limited by the nature of the limitations contained in the * * . * will” (Peters v. Lewes Railroad Co., 18 Ch. Div. 433), is needed to justify any further discussion of its extent.

This doctrine is -entirely acceptable where the will in terms, or by necessary.implication, indicates the purposes to which the testator intended the use of the powers to be limited. But where the will creates an unlimited-power in unquestionable terms, yet exhibits no objects-save a desire for the exercise of the discretion of the donee, there is some danger that in holding that the powers may not be enforceable, some unexpressed purpose of the testator may be defeated.

The power given to the executors is, by the express terms of Mr. King’s will, exercisable at their discretion, without limit of time or circumstance, save as to the homestead property. If, despite this fact, there must be, in order,to validate the power, some additional indications of the objects for which the testator intended it should be exercised, the will itself and the circumstances of this case are not lacking in-the exhibition of such indications.

Taking up the claim that the power cannot be used to convey a merchantable title to the homestead property. That the testator created the power, that he contemplated its exercise by the executors upon the homestead property, that he postponed-their action under their discretion, so that they should not sell the homestead until the last of the unmarried daughters had either married, ceased to occupy it, dr died, appears in the very words of the will.

It is assumed by the defendants that the payment of debts and legacies must have been' the only matter for which the testator intended the power to be exercised. The face of the will indicates that while the testator intended the homestead property to be sold under the power, it is highly improbable that he had any purpose that its proceeds should go to pay either debts or legacies. This is strongly inferable from the fact that, although the power was undoubtedly extended over the homestead property, the testator postponed the time when the executors might exercise it upon that property to the end of two successive life estates in it. The testator must be presumed to have known the law, that all his debts must have been paid long before the sale of the homestead (which he contemplated after two life estates had expired) could have been effected under the power so postponed.

As to the legacies, the $5,000 gift to Annie King, the granddaughter, is the only one in the will for which money had to be raised. The testator postponed the payment of this legacy until the death of his wife, and as he postponed the sale of the homestead under the power still further, beyond the life estate given to his unmarried daughters after the death of his wife, it is evident he'did not expect the power to be exercised to raise the legacy. .In this aspect of the case, both the debts and the legacy had to be paid before the power could be used to sell the homestead. Yet the very words of the will show that the testator contemplated the use of the power to sell the homestead. How, then, can it be said that the unlimited discretion which the testator gave to sell the homestead must be limited to be used for two purposes only, when, by the expressed terms of his will, it could not have been used for either of those purposes? Must it not be believed that he meant what he said — that the executors should use the power at their discretion; that is, for any purposes ?

Considering that the homestead property has now, using the ■testator’s words, “sunk into the residue,” is the executors’ power ■of sale yet forceful to convey a title which is merchantable, and which will divest the fee held by the devisees of the residuary ■estate ?

The contestants insist that the‘satisfaction of the debts and legacies has nullified the power. The decisions, in cases where •a showing of objects for the execution of general powers has •been required, have not limited the execution of such powers to the payments of debts .and legacies. On the contrary, such general powers appear to have been held valid wherever the court has been able to ascribe to a testator auy purpose consistent with the circumstances of his estate and his relations to his beneficiaries. An intent to “secure dominion over his estate,” and «to “limit the expenses incident to conveyance” (Lord Elden, in Maundrell v. Maundrell, 10 Ves. 265), “convenience of distribution” (Chancellor Williamson, in Brearley v. Brearley, 1 Stock. 31), “convenience of division” (Smith v. Claxton, 4 Mad. Ch. 493), have all been referred to as objects which would sustain (he validity and exercise of a general power. In Mr. King’s case it is not difficult to believe that, with his large family of sous and daughters, to whom he had given a considerable estate in undivided shares, the lands lying in various parcels, the testator might well have anticipated the very situation which has now happened, that by reason of some financial misfortune the •undivided share of some one or more of the family might come to the ownership of a stranger whose interests and feelings would be foreign to those of the family, and in order to preserve “do- ’ minion over the estate,” and the power to dispose of the property by- the action of those in whose discretion he trusted, rather than at the instance of strangers, he created the power which "could be exercised at'the will of his executors (also members of his family) who could thus compel a realization at such times, in sucli manner, at such prices and on such terms as they might deem most beneficial.

There is, however, a further indication of the testator’s intention regarding the exercise of the power arising out of the provisions of the codicil to his will, which is applicable to'the whole of his real estate. The will and the codicil speak as an entirety, and from the time of the testator’s death. He made his will in T874, and his codicil in 1879. By the codicil he ratifies his will, save as to Elizabeth’s share. The complainants in the partition bill assume that this was a ratification of the residuary devise under which they claim, but they, do not recognize the attendant fact that it was also a ratification of the power in the will which dominated their devise. By the codicil the testator revokes and alters his will, so far as it relates to the share devised to Elizabeth, and declares his will to be as follows:

“I now declare that it is my will that instead of her receiving the share or portion of my estate as therein [in the will] provided, such share or portion shall be invested by my executors'in safe bonds and mortgages, &c., * * * and the income thereof paid to her, my said daughter, Elizabeth King, during her natural life, &c., with limitation over to issue of Elizabeth, or, on failure of issue, to the survivors of her brothers and sisters or their issue.”

The testator, by the codicil, contemplated a conversion of the share devised to Elizabeth. It was to be invested in safe bonds and mortgages. Income therefrom was to be paid. The whole scheme and the phrasing of this codicil show that the testator was dealing with Elizabeth’s share as a fund and not as land. He then appoints as trustees the executors named in the will. His language is, “ as trustees of said share or portion of my estate set apart for the use of my said daughter Elizabeth.” Elizabeth’s share is thus considered by the testator as “set apart ” — that is, to be severed from the rest of the estate.

The testator, when he made this codicil providing that the devise given in his will to Elizabeth should be revoked and that her share should be set apart and invested to produce for her an income, had before him the will by which Elizabeth’s share was but an undivided interest, intermingled with other shares. He did not himself, by a self-executing codicil, sever her portion. He also had before him that provision in his will whereby the executors, whom he made trustees for Elizabeth, might sell the whole estate at their discretion, and thus effect a severance of Elizabeth’s interest and its realization into a fund which might be invested for her benefit. The testator plainly left the severance and setting apart of Elizabeth’s share to be done by his executors. There is no way by which the trust fund for her could, under the scheme of the will and codicil, be set apart for her out of the undivided interests save by executing the power of sale.

If, therefore, reasons for the exersise of the power of sale for other than payment of debts and legacies must be found, to justify its execution (notwithstanding the words of the will disclose a clear intent of the testator to give an unlimited discretion), they are, I think, apparent upon the face of the will and codicil, not only in the purposes which may fairly be ascribed to the testator but also in those which the scheme of the testamentary dispositions force into recognition.

The exercise of the power by the executors is further challenged because it is claimed to be stale, or to have become void for want of exercise within a reasonable time.

So far as this applies to the sale of the homestead property, the power was exercised substantially coincidentally with the opportunity to exercise it. The testator postponed its execution until the life estate given to his unmarried daughters should “ sink into the residue.” This did not happen until they died, married or “ ceased to occupy ” the homestead. The defeat of this estate happened by the cessation of the occupation of the homestead, because of Elizabeth’s removal therefrom, which occurred within a few weeks before the making of the deed now deposited in escrow.

The delay in exercising the power upon the residue of the estate of the testator has not invalidated it. During Mrs. King’s life up to 1885, while she had the right to the whole estate for the benefit of herself and her unmarried daughters, of whom Elizabeth was (for a time) one, it can readily be understood that the executors found no occasion to separate Elizabeth’s-share. After Mrs. King’s death, so long as the undivided interests were held in the ownership of the family, the provision for Elizabeth was a matter of family arrangement. Now that a necessity for dealing with a stranger has arisen, the executors seek to exercise that dominion over the estate which the testator left to their discretion, and subject to which the stranger bought.

The court of appeals, in Morse v. Hackensack Savings Bank, 2 Dick. Ch. Rep. 287, 290, discusses the effect of mere delay in the exercise of an unlimited testamentary power of sale, and declares that no case has come under its observation in which a limitation of time has been imposed upon a power in the nature of a trust, not limited in terms, unless the rule against perpetuities is involved, or the power is controlled by an inherent quality in the nature of a trust, or by the object for which it is created. It is true that the controversy in this case as to the validity of the power has arisen some twelve years since Mrs. King’s death, but'there is no showing that the purposes of the testator to set Elizabeth’s share apart, and have it invested, have ever been carried out, nor that any fraudulent use of the power is intended; nor that its present exercise .is against public policy in that it may offend the rule against perpetuities, nor does any reason appear why the trust reposed by the testator in the discretion of the executors should not be performed by the use of the power.

Mr. Backus, the complainant in .the partition suit, holds his title under the conveyance of Isaac King’s undivided share of the estate. As devisee of an undivided share, Isaac was a mere volunteer, and his estate was subject to the exercise of the superior power created by the testator, who gave him his share. It is quite possible that Mr. Backus, in making his purchase of Isaa\c King’s undivided interest in the estate, subject to the executors’ power of sale, discounted the disadvantages to which the share was subject, by the lesser price which he paid. However this may be, he certainly bought with full notice of the superiority of the power of sale over the undivided interest which he purchased, and has therefore no equity now to complain. That the exercise of the power will cut out the estate which vested by the ’devise was determined against a subsequent purchaser of such a devised share at a sheriff’s sale in Wetmore v. Midmer, 6 C. E. Gr. 243.

There is no room in this cáse for the doctrine of election, whereby, when the whole of the proceeds in the lands to be sold under a power belong to the persons who held the title, courts of equity will protect the choice of the beneficiary to retain the title to the land, rather than to take the proceeds under the execution of the power. The whole beneficial interest is not in Mr. Backus. All the other beneficiaries join in asking that the power be exercised. To enforce the testator’s intent as to Elizabeth’s share, it is necessary that the power be exercised. There is a limitation over of her share, which is contingent. Mr. Backus, being the holder of but an undivided share, cannot alone elect to take the property as land, and thus defeat the operation of the power. Fluke v. Fluke, 1 C. E. Gr. 481.

It is also objected, in the specific performance suit, that the deed in escrow is not executed by John J. King, originally one of the executors, but who has been removed by an order of the orphans court. This criticism was not urged with much insistence. It has been finally settled by the court of appeals in Denton v. Clark, 9 Stew. Eq. 538, approving of the more elaborate exposition of the question in Weimar v. Fath, 14 Vr. 1. The law on the point is declared to be “ that when a will gives executors in their official capacity a power to sell, without naming individuals who are to be clothed with such capacity, * * * and one of such executors is removed from the office, the power to sell survives, and it can be legally exercised by the remaining executors.” The conditions stated apply in this case. The power is efficiently exercised without John J. King joining in the making of the deed.

In the specific performance case, the complainants have shown that they have power to convey to Mr. Rich, by the deed of escrow, a fee-simple estate in that part of the homestead property which is proposed to be granted by that deed,’and that the title which will thus pass is not questionable, so that its acceptanee would put upon the defendants the risk which might attend upon settling it. Lippincott v. Wikoff, 9 Dick. Ch. Rep. 109.

In the partition suit the power of sale under William King’s will, which the executors claim the right to exercise, must beheld to be superior to the right of partition or salé acquired by Mr. Backus by his purchase of the undivided interest of Isaac King in the devise to the latter under that will. The executors are bound to exercise that power in order to carry into effect the codicil of the testator regarding the share of Elizabeth, which he directed to be invested and set apart by her trustees, and which must be so delivered to the trustees that they may perform their duty in that regard. The power is superior to the-estate of the residuary devisees and of those claiming under them. They have held the fees since the death of the testator, and are entitled to the profits of the lands (except the homestead property) from the time of Mrs. King’s death to the time of the execution of the power. Morse v. Hackensack Bank, 2 Dick. Ch. Rep. 283. Their fee will be divested by the execution of the power, but this can work no hardship to Mr. Backus, the purchaser of Isaac’s share, for he bought -Isaac’s undivided interest in a devise which came to him by the same will which gave to the executors the superior power to sell the whole estate. The most that Mr. Backus could acquire by his deed was Isaac’s place. The several residuary devisees, and those claiming under them, will, of course, be entitled to their several shares in the purchase-money arising from the execution of the power.

Decrees will accordingly be advised for the complainants in the specific performance suit, and for the executors and trustees-under William King’s will in the partition suit.


source: Caselaw Access Project

author: Grey, V. C.

license: Public Domain

text:
    George R. Gray, receiver of the Granite State Provident Association, v. George Pfeiffer, Jr.
    [Filed March 30th, 1900.]
    1. Money delivered to a depositary, to be paid to an association only upon the further direction of the depositors, will not be assumed to have been directed to be paid because the depositors afterwards proved claims against the association in sums corresponding in amount with the deposit money but in no way referring to it.
    2. To support a claim of an equitable assignment of money on deposit there must be proof of an appropriation of the identical fund.
    On bill, answer and proofs.
    The complainant is the receiver of the Granite State Provident Association, an association organized under the laws of the State of New Hampshire, authorized, among other things, to build houses, loan money on real estate, securities, &c., and to conduct the business of a building association. In 1894 it made the deposit necessary to enable it to transact business in this state, and a considerable number of persons in and near Camden subscribed for shares of its stock and paid the monthly dues required.
    The bill alleges that the association employed persons to collect the installment of stock from its stockholders and to transfer them to the association, and that the defendant, George Pfeiffer, was appointed such an agent and collected installments from members in Camden; that the association has been declared to be insolvent, that the complainant has been appointed its receiver, that he has demanded the installments received for the association by the defendant and that he refuses to pay over the same, and praying discovery of the amount of those moneys, &c., an accounting and payment.

      The defendant, by his answer, states the names of several stockholders who have paid dues to him, and the several amounts paid by each, but alleges that the money now in his hands was deposited with him by the parties named, under a special agreement made between him and them, in December, 1895, to the effect that the money thereafter deposited with defendant should be kept by him until it was ascertained whether the association was solvent or not, and that he should not turn it over to the association until directed so to do by the stockholders who paid it. He further answers that the stockholders have never directed this money to be paid to the association, but, on the contrary, had demanded its return to themselves.
    The proofs in the case show without dispute that the so-called “ Camden Branch ” of the Granite State Provident Association was not an organization, but was a mere voluntary coterie of stockholders residing near Camden, who came together to assist each other in collecting and transmitting dues. ■ From this party the defendant had for some time prior to December, 1895, received their dues and transmitted them to the association. There is no proof whatever that the defendant was ever appointed an agent of the association, or that he was in any way employed by it. The evidence is that he was appointed and acted solely for the local stockholders.
    The proof as to the circumstances of the deposit of the fund with the defendant supports his answer. It appears that in the latter part of 1895 the Granite State Provident Association was reputed to be financially embarrassed, and that in December of that year the Camden stockholders made an arrangement with the defendant by which they thereafter deposited with him the amount of their monthly dues as they became payable, but upon an express agreement that the defendant should keep the money until it was ascertained whether the association was solvent or not, and that he should not turn it over to the association until directed to do so by the stockholders. No money was forwarded after December, 1895. The stockholders who deposited with the defendant have never directed it to be paid to the association and insist on its return to them.

      It has been shown by the complainaut that each of the several stockholders who, under the above-stated agreement paid their money to the defendant, Mr. Pfeiffer, has proved his claim against the fund in the hands of the receiver, asserting a right to share in the dividends of the assets of the insolvent corporation. In making proof of his claim, each stockholder has demanded, in the proof exhibited to the receiver, as a basis of his claim, an amount of money which is in excess of the amount shown on the books of the association to have been received by it from the claiming stockholders. The form of proof is in each case:
    “ Granite State Provident Association.
    “To [name of stockholder], Dr.
    “To amount paid for dues on Policy No........ Homestead fund of the said Association, from August, 1895, to May 1, 1896, inclusive. $......[Amount claimed by the proving stockholder].”
    The complainant insists that the filing of these claims for dues paid beyond December, 1895, and up to May 1st, 1896, has operated to make the defendant liable to him as receiver, &c., for the identical money deposited with the defendant by the stockholders after December, 1895, under the agreement above stated.
    This is the only question in the case.

      Mr. Howard W. Hayes, for the complainant.

      Mr. Howard Carrow, for the defendant.
   Grey, V. C.

The dispute requires a determination of the relationship of the defendant to the fund in his hands, and of the right of the receiver to claim it. The amount of the fund, who contributed it, in what sums, for what purpose, and under what circumstances, are all discovered by the defendant in his answer, or are indisputably shown in the proofs. The single question is, has the receiver a right to this money in the hands of the defendant because the stockholders proved claims for dues up to May, 1896, when they liad actually paid dues to the association only up to December, 1895 ?

The complainant contends that the defendant was by the association appointed its agent to receive these dues. The uncontradicted proof is that he was never so appointed; that he received the money in question as the voluntary depositary of certain stockholders of the association who resided in Camden, upon an express agreement that he should not pay it over to the association until directed so to do by the depositors, and that he never has been so directed.

This point is of the greatest importance, for if the defendant received this money as the agent of the association, the subsequent action of the stockholders in proving their claims on a basis of dues paid after December, 1895, might properly be related to the money in the hands of the defendant and be claimed to have been a final recognition of that money as the property of the association by the contributing stockholder and an appropriation of it to the payment of those dues.

Nothing in the proven claims filed with the receiver refers in any way to the money in the hands of the defendant or recognizes it as belonging to or under the control of the receiver. The claims simply show that each proving stockholder asserted that he paid more dues than he in fact did pay. This might have been good reason for reducing or rejecting the claims but cannot be held to have appropriated a deposited fund to support the asserted payment, which the undisputed evidence shows was never so appropriated. No stockholder is shown to have done any act whereby he selected or appropriated the particular moneys in the defendant’s hands in payment of the dues referred to in his proofs of claim. It is assumed by the complainant that the exhibition of a proof of claim by the stockholder, based upon the asserted payment of dues after December, 1895, must necessarily relate to those moneys which the stockholder had deposited with the defendant, without any evidence whatever that those moneys were ever directed to be paid to the association. The uncontradicted proof is that they were never so directed to be paid. The presumption that a mere proof of claim for more than was due was a selection and appropriation of a particular fund in no way referred to by the claimants is too violent to be sustained.

The evidence shows that the defendant is a mere voluntary depositary. The stockholders who deposited these moneys are not made defendants in this bill, although all their names were upon the books of the association. They cannot be heard to defend their claim to the money in the defendant’s hands, nor can they be bound by any decree made in this case. This situation has not been the subject of criticism of these proceedings by the defendant, but under such circumstances the court will require, if it further proceeds with the cause in the absence of the persons who it is suggested are the real parties in interest, that a clear case be made that the fund attacked is actually assets which the receiver is entitled to have and which the defendant is bound to pay to him. In the face of the affirmative proof, substantially undenied, that the defendant did not receive the money in question as agent for the association, that it was never ordered to be paid to the association or to the receiver, the mere fact that proofs of claim have been made by the same stockholders who deposited the money with the defendant which alleged the payment of dues to a later period than they were actually paid, cannot, without other action, by the stockholders to select and appropriate this particular money as making those later payments, be construed to have been an appropriation of the money deposited with defendant.

The complainant has shown no right to the moneys in the hands of the defendant. The bill should be dismissed.


text:
    Addie L. Perkins v. Luther W. Perkins.
    [Filed April 14th, 1900.]
    1. A wife’s confession of adultery cannot be established by the unsupported testimony of the husband.
    2. Where such a confession is.first obtained by a husband, and by him procured to be copied by a scrivener, and he brings his wife to the signing of the paper thus prepared by threats of violence, and waits in the next room while she signs it, and immediately that she does so possesses himself of the paper, the confession will not be received as the voluntary statement of the wife.
    On bill for alimony, answer and proofs.
    The complainant, under section 20 of the Divorce act (Gen. &Hat. p. W70), alleges that her husband has abandoned and does not support her, and seeks a decree for alimony.
    The answer originally' filed by the defendant admits the marriage, denies the specific acts of cruelty and ill treatment, alleged in the bill, and comes very near to an admission of abandonment in these words, “ that the complainant, at the various times stated in the bill of complaint, returned to the house of this defendant, and was ejected by him,” &c. As to non-support, the answer says, “ that for the foregoing causes in this answer set forth, he lids refused to maintain and provide for the said complainant.” ■ The cause referred to was the alleged adultery of the wife, which was intimated, but not substantially charged, in the defendant’s answer.
    The vice-chancellor, in this condition of the pleadings, declined to hear proof of the marriage, or of non-support, which were fully admitted in the answer, and called on the complainant to prove abandonment by the husband, and his ability to support his wife, &c. The subsequent evidence taken did, however, fully prove the marriage, and also abandonment and nonsupport- by the husband of the wife.
    On the opening of the cross-examination of the wife, the-defendant’s counsel put questions which he admitted were intended to set up the defence of the wife’s adultery. On objection made, the vice-chancellor held the original answer to be insufficient to support that defence, but that, in view of the fact that the complainant was fully notified that such a defence might be-made, an amendment definitely charging her with adultery was-allowable.
    An amendment to the answer was then made, which charges-that the complainant committed adultery on four different occasions, all. with the same man, named in the amendment. These allegations are themselves based upon the details contained in a-paper which the husband contends is the wife’s confession of her fault.
    The wife denies her guilt, and insists that the alleged confession was obtained from her by her husband under circumstances which overcame her free will; that the incidents narrated in the supposed confession are all false, and never happened.
    Incidental to and in explanation of the abandonment by the husband of his wife, the relations of these parties are further exhibited by the proof, without dispute, that the husband has, for several years prior to September, 1898, lived in a state of adultery with a paramour.
    The whole defence is based upon the assertion by the husband that the wife had also committed adultery, and that she, for this-reason alone, was not entitled to support from him.

      Mr. Charles E. Hendrielcson, for the complainant.

      Messrs. Gilbert & Atkinson, for the defendants.
   Grey, V. C.

This matter was previously before the court upon affidavits-seeking alimony pendente lite, and on that application alimony was allowed... It has now come to final hearing, and testimony lias been submitted in open court at great length. The whole ■ease presented turns upon the defence which charges adultery .against the wife and her denial of it.

The only proof of the fact of adultery is the alleged confession of the wife in writing, which she signed, and the statements which she is alleged to have made to the husband. If the ■wife’s alleged confession and the statements ascribed to her by her husband’s testimony should be eliminated, there would be nothing in the case to support the charge against her.

The question of the effect of a confession by a wife of her adultery has been fully considered in Summerbell v. Summerbell, 10 Stew. Eq. 603. In that case the opinion of Barker Gum-mere, Esq., as master, collates and comments upon the cases in a manner so thorough and discriminating as to be of the utmost value. The opinion of the court of appeals, affirming the decree advised by him, discusses the special facts shown. The syllabus of the case states the principle which governed the decree advised by the master and affirmed on appeal. The whole dispute turned upon the weight to be given to a confession of adultery by the wife, and the court of appeals declared that such a confession, written by the wife in the presence of the husband, is presumed to be procured by coercion and is not a safe basis upon which to build up a charge of adultery against her.

The case now under consideration is for alimony and not for divorce, but the defence set up is the adultery of the wife, and the same considerations which induce the refusal to recognize an unsupported confession in divorce cases apply in this suit. The presumption of the husband’s coercion in obtaining the confession and the impolicy of accepting an admission of the wife, which may free the husband from the obligations of his marriage contract to support her and cast that duty upon the public, are presented here quite as effectually as in a divorce suit.

The circumstances under which the alleged confession by the wife of her adultery was given are substantially these: The husband liad for several years prior to 1898 maintained adulterous relations with a paramour. He had for along time of his own choice, ceased to observe his marital relations with his wife. In March, 1898, she had filed a petition for divorce against him, on the ground of his adultery, with a prayer that he might be compelled to provide for her and support her. He had treated her with great harshness and cruelty, but as yet she lived in his house. The husband had not put in any defence to the divorce suit, but claims that the wife did not prosecute it because he had told her “ that if she pushed it he would fight it, and that she stopped it, and did not go any further.” He says that about May 30th, 1898, which, it is to be noted, is about the time he should have filed answer to her divorce suit, he first discovered something which made him suspect her fidelity. This something was that he missed some money, and, in searching for it, discovered a large lot of letters between the bed and mattress in his wife’s room, and in her drawer found the picture of the man, who, he says, was her paramour. These letters were afterwards undisputably shown to have been sent by another man, not the alleged paramour, in envelopes addressed to the wife, but the enclosed letters themselves were all written to, and intended for, another woman, a friend of the wife, who had kept them- for her friend. Nothing in them contained was proven to relate to the wife, except two references — “ Tell Addie [the wife] that the whiskey she gave me done an old woman some good.” Another was, “I hope Addie and - [the alleged paramour] had a good time.” No one but the husband proved that the last quotation was in any of the letters. The wife denies it. The woman to whom they were written was on the staud, but did not prove it. The wife denies the presence of the alleged paramour’s picture with the letters; no one but the husband proves it. The husband says he immediately accused his wife, and that she said there was nothing in those letters concerning him, that she only received them for another woman, and this statement of the wife has been proven to have been the truth.

The husband details another letter .incident. He testifies that on another occasion he proposed to open the wife’s chiffonier, but that she resisted and seized something from it, which he magined was a letter. She hid this something in her stocking and ran out of the house, he pursuing her,' She got away, but afterwards, he says, confessed that what she hid was a letter from her paramour, and the husband says he found it, torn in small pieces, alongside a neighboring fence. He put them together, so that he could intelligently read it, and recited it from memory on the stand. As stated by him, it was addressed to “ Dear Addie ” and signed by the alleged paramour’s name. It is unnecessary to repeat its contents. They are aggressively nasty, and the conscious possession of such a letter by any woman would go far to. cast doubts upon her virtue. The wife denies that there ever was such a letter. She explains that the incident of hiding something in her stocking, and the flight and pursuit, did happen, but with relation to some money which she was afraid her husband .would take from her if he knew she had it.

As to this alleged patched letter, whether there ever was any such paper in the wife’s possession depends wholly upon the husband’s uncorroborated testimony, which is flatly contradicted by her. Their son, Edgar, testifies that his father once showed him a letter addressed Dear Addie” and signed with the name of the wife’s alleged paramour, and that it contained one phrase which he recalls, which coincides witli a similar phrase to that which the husband recites as contained in the full letter. Neither the young man nor the father, nor anyone else, attempted to prove that the patched letter was in fact written by the supposed paramour. The only .inculpatory facts shown were that the letter itself indicates lecherous relations between the writer and the addressed person, and that it was alleged by the husband that the wife had it in her possession and threw it away in her flight, and that he recovered it. This partially-corroborating testimony of the son was not given under circumstances which made his statements credible. He admitted on cross-examination that before this cause was actually moved, in December, 1898, by the taking of depositions before Philip S. Scovel, Esq., master, his father had shown this patched letter to him, but he testified that he did not know whether his father knew that he was acquainted with it. This was certainly false, for if his father showed him the patched letter each must have known that the other knew of it. The reason for this prevarication was that the young man was sworn in his father’s behalf, before Master Scovel, and testified about seeing letters supposed to suggest doubts of the wife’s fidelity, but he never mentioned this patched letter nor the very incriminating phrase in it which he now repeats. He again testified on this hearing, for the complainant, but made no reference to this patched letter, nor was he cross-examined on it, although his father was in court and heard his testimony, and if the son was shown it by the father, the latter must have known that the son could testify to it. The son never disclosed his knowledge of it in any of the preceding depositions nor until recalled as a witness for his father. Before he first deposed he knew everything he swore to on his last appearance. The situation supports an inference that he never had any knowledge of such a letter, but was finally induced by his father, in the strain of the case, to make the statement in question, which he might safely do, as he narrated incidents outside of the knowledge of anyone but his father and himself.

The son again, for the fourth time, appeared as a witness, and undertook to account for the non-production of the patched letter and the alleged original confessions. He testified that his mother, after she had left his father’s house, at first tried to bribe him to deliver the papers to her, and on his refusal came back to the house while his father was absent, and, against the son’s protest, took a couple of papers out of his father’s private box and carried them away, and afterwards admitted to the son that she had burned them. These papers, he stated, were the patched letter and the original confession. His testimony does not show that he had previously ever seen the alleged original confession, nor did he testify that he actually saw either paper so as to identify it in any way, at the time he says his mother took them out of the box. The testimony of this young man does not command belief. He is about eighteen years of age, and is in his father’s employment. His manner of giving testimony was hesitating and uncertain, and left upon the hearer a sense that he was not relating events which he recalled, but was creating incidents which he was unable, when suddenly questioned, to put in their proper relation to make a consistent story. His testimony is of no weight to corroborate that of his father.

Taking all of the proofs regarding these two events, there is no sufficient evidence to establish their inculpatory character. Some of the circumstances narrated happened, but the testimony given satisfies me that those incidents which tended to cast suspicion upon the wife’s character were created by the husband and woven into the narration of other innocent happenings, in order to put her to shame. He had, in fact, no reason to doubt her fidelity, but he was in great straits to have some such accusatory circumstance. Every witness who touched upon these points failed to sustain his testimony, and several contradicted, him.

It was after these two incidents as to letters that the confession, alleged to have been made by the wife, came into being. In the latter part of June, 1898, the husband produced to the witness Crane a paper, written by himself, narrating the four acts of adultery on the part of the wife, which are recited in the amendment to the answer. The husband testifies that the wife had stated the facts to him, he had written them down, and she had signed it. He requested Mr. Crane to put it in better form, and the latter, at his home, copied the substance of it and appended an acknowledgment to it, and, at the husband’s request, attended at the latter’s printing office to have the wife sign it. Mr. Crane prepared the written confession, which was produced in evidence, before he talked with the wife on the subject, copying, in substance, the paper written and handed to him by the husband. In accordance with the latter’s request, Mr. Crane, taking both papers with him, attended at the husband’s printing office to have the wife sign the confession. The husband went into their residence which was immediately next door to the office, and brought the wife into the office. The witness Crane says, that the wife wanted the husband to be there, but that he (the witness) said, “Ho, she must be there alone,” so the husband went into the adjoining press-room. The witness Crane says, he then read to the wife the copied paper, which is dated July 16th, 1898; told her she did not have to sign it if she did not want to; that there was no force about it, and she said she was ready and willing to sign it, and, did sign.it. The .husband was then called in, and was told that the wife had signed the paper. He picked it up. She wanted Mr. Crane to keep it, but he declined, and the husband took both tile original and the copy and put them in his pocketbook. The witness gives no evidence that the wife made to hint any statement about her alleged adulteries, except that she signed and acknowledged the-paper which lie read, being that one which he had copied from another furnished by her husband. The copied paper written,, and witnessed by Crane and signed by the wife, is produced in evidence. The original, written by the husband, is not produced.

The wife denies that she ever made any statement to her husband, denies that she ever signed any written, for her by him, and testifies that her signature to the statement prepared by Mr. Crane was obtained from her under these circumstances. Her husband insisted that she should go before some one, naming several, among them Crane, and sign a paper confessing her adultery. She refused, declaring the thing suggested was a false charge. He persisted, repeatedly following her about the house,, and threatening and tormenting her to agree to sign such a paper,, she always denying and refusing. Finally, Mr. Crane was-brought to the office, next door to their residence, by the husband, who told her she had got to go in and sign the paper. He began to swear at her, shook his fist at her, and told her she-had got to get out if she did not, and that he would watch and see that she did it. Her nerves had, by his previous worriment, been all unstrung, and, under these threats, she went from her house into the office, the husband waiting in the next room, and signed the paper which Mr. Crane had, at the husband’s request,, prepared. She says Mr. Crane did not read the papér to her,, and that he told her that it didn’t amount to a row of pins, and that he believed she was innocent.

The husband testifies that after the execution of this paper there was an agreement between him and his wife that she would stay at his house until he got a housekeeper, and as he expressed it, that she would do to suit herself and I would do-to suit myself.” This language was not further explained, and it may be that it was not intended to indicate that the husband claimed to have agreed with his wife that they might thereafter suit themselves in the commission of adultery. Having in view the undisputed fact that the husband was then carrying on an adulterous relation, and claimed to hold his wife’s confession of a like crime, that was the impression his language conveyed to the hearer.

The non-production of the incriminating patched letter and the original confession are thus accounted for by the husband. He says he put them in his private box, and in the fall of 1898 he missed them; he intimates that his wife took them in, his absence.

The son testifies as above stated that his mother took these papers out of his father’s private box and afterwards told him that they were “ in smoke.”

It will be noted that the whole question whether -there was any original confession turns upon the testimony of the husband. He received the alleged confession, and prepared the written statement which he says his wife signed. She denies that there ever was any such confession by her, and that she signed any other than the one written by Crane by the husband’s direction. Mr. Crane, of course, saw the paper which the husband gave him, but he is not shown to have been acquainted with Mrs. Perkins’ signature. He says the signature to the original was the same as that Mrs. Perkins made to the new paper in his presence, but no other proof than this supports the claim that she ever signed the first paper. It was quite within the husband’s power to have framed the supposed original confession and to have simulated his wife’s signature to it.

The wife admits that she did sign before Mr. Crane the written confession which is produced, but declares it was obtained by the threats and compulsion of the husband. The husband’s own story is that he obtained the confession from his wife when she and he were alone together. He said it was voluntarily made after he got the letters and about three weeks before she left his house. There seems to have been no reason whatever why the wife should have made such an acknowledgment. The evidence satisfies me that the patched letter story is a falsehood. No one had ever seen the wife and the alleged paramour in each other’s presence. She testifies that she had in fact seen him but once in eighteen years, and did not at first know him. When the supposed confession was claimed to have been made to the husband there was not a single inculpatory fact known which might have led her to confess her shame. There is even in the husband’s story no pretence that the acknowledgment came about because of the wife’s contrition and remorse. He testifies she made it so that if he wanted to elevate himself again where he ought to be, he could tell people it was not all his fault; that she was as deep as he.” In other words, that she abased herself that he might be exalted. After he says he received the confession, he had no sense of resentment or disgust or even decency. He suffered this woman, who he says had voluntarily confessed to him that she had betrayed him, to remain in his house after her confession. The husband was at this time living in acknowledged adultery. There was a pending divorce suit which his wife had instituted against him, asking a decree that he be compelled to support her, and his answer was about due. He had no regard for his wife, but his defence in this suit on the preliminary application for alimony shows that he had a high esteem for his money. It was necessary that lie make some efficient counter reply to her suit, as his adultery was so notorious that it could not be denied. She was then still living in his house, and he was so placed that he could readily create a situation which would be a perfect defence. His temperament and hers were such that he could readily dominate her. That he was capable of exerting against her almost the last degree of violence is shown by his own testimony. . He states that he smacked her alongside of her face,” and she undisputedly proves that on several occasions he violently put her out of his house. He claims to have had justification for this violence. Into the truth of this claim it is not necessary to inquire. The fact is plain that he was of such a nature that violence to a woman was easy to him, and she of such a temperament; that he felt safe in exerting it upon her. She testifies that he secured her to appear before Crane and to sign the prepared paper by persistent importunity and by threats of violence.

The undisputed circumstances surrounding the making of the supposed confession tend to confirm her story. He had the-paper prepared in advance; this saved the necessity for any explanation of the facts by her to Mr. Crane. He invited Mr.. Crane to come to his office, and himself went after Mrs. Perkins,. Avhom he saw alone, and brought her into Crane’s presence. Crane says she wanted Mr. Perkins to stay in the office, and it Avas Mr. Crane who sent him away, and not he who voluntarily absented himself. The paper which Mr. Crane had prepared was read to her; she signed it; he took her acknowledgment; ther.e seems to have been no conversation about it, except that he told her she need not sign it if she did not want to do so. Mr. Crane says there was not much chance for any talk back and forth, because as quickly as the paper was signed we sent for Mr. Perkins to come in, and there was no argument at all about the matter.” Mrs. Perkins Avanted Mr. Crane to keep-the paper, but he declined, and Mr. Perkins took it away. The acknowledgment does not contain the phrase “ without any fear,, threats or compulsion on the part of her husband.” It simply" certifies that she acknowledged it to be her voluntary act and deed.

Considering all of the evidence touching the creation of this supposed confession, it appears to have been originally admittedly secured by the husband privately from the Avife. Such a confession presented by the oath of the husband alone could never have been the basis for a decree that the Avife was an adulteress. Summerbell v. Summerbell, ubi supra, and cases there cited.

The circumstances of alleged corroboration show the continued action of the husband in procuring the alleged confession to be put in more available form, all the while under his immediate attendance and surveillance save only during the short instant that the Avife’s signature and acknowledgment could be secured, and during even that time it was known to the wife that he was-in the next room waiting for her to sign it. In my view the clear weight of the testimony goes to show that whatever probative force this alleged, confession appears to have is the result of the action of the husband in overcoming the will of his wife, and that it ought to be rejected.

When, however, corroborating proof is sought of the detailed facts of the supposed adulteries of the wife narrated in the confession, there is an absolute absence of any support. No witness testifies that the wife and the paramour were ever seen together. The.husband says that on the one occasion on which, after sixteen years’ absence, the alleged paramour came to their house, the wife told him that the paramour had kissed her. several times, but she denied this statement; no other proof sustains it. One of the acts of adultery stated in the confession named a day when the parties registered, at a named Philadelphia hotel, as man and wife. There was no attempt to prove that the fact happened as narrated in the confession, save that the son testified that, on that date named, his mother was absent from home. Other proof showed that on the time named she was with her sister. Neither any clerk, nor other person in the hotel, nor its registry-book was produced to show7 that the parties were at the named hotel as stated in the confession. The evidence show's neither proof of any such feeling between the wife and the alleged paramour as might have tempted her to forget her marriage vows, nor of any opportunity to gratify such a feeling had it existed.

The defence of the adultery of the wife has entirely failed, and the evidence necessary to support a decree for alimony under the twentieth section of the Divorce act is sufficient.

Upon consideration of all the circumstances of the case a deoree will be advised that the husband pay to the wife, for her maintenance and support, the sum of $7 every week until the further order of the court, with an additional counsel fee of $25 and the costs of this suit.


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    The Pittsburgh Plate Glass Company v. The Millville Improvement Company.
    [Filed May 5th, 1900.]
    Complainant advanced money to defendant under a contract that defendant should manufacture and ship glass to complainant according to orders, that the debt should be secured by a note and mortgage, and that all invoices of glass should have deducted from them ten per cent, of the invoice price,.to be credited on the mortgage, which stipulated that the loan should be paid in six months. — Held, that, construing the note and mortgage together, they showed no intention that the payment of the debt should be extended until such time as the ten per cent, deducted from invoices shipped should satisfy the mortgage.
    On bill, answer and proofs.

      Mr. Robert 8. Selviller, for the complainant.

      Mr. Walter H. Bacon, for the defendant.
   Grey, V. C.

(orally).

I do not need to hear you, Mr. Schiller. Nothing that counsel for the defendant has said has altered the impression received upon reading the contract and the mortgage. Those are in writing and have admittedly been entered into by the parties. They continued to be binding upon the parties unless they were in some efficient way altered. Nothing has been here shown by the defendant to indicate that the terms of the contract were altered except two circumstances — the change in the interest rate and the change from giving a note to be secured by the mortgage as named in the contract to the giving of a bond. Those changes from the precise terms of the contract were accepted and assented to by Mr. Wood for the Millville company in giving the bond in place of a mortgage and in making the rate of interest six per cent. In all other respects the contract must stand upon its terms as expressed in the writing.

The contract provides for the advance of a sum of money in order to enable the Millville company to perfect its works. The provision for the advance of this sum of money is entirely separate and divisible and has no relation whatever to the clause providing for the making of glass and its shipment to the Pittsburgh Plate Glass Company except in one particular, and that is, that all invoices of glass should have deducted from them ten per cent, of the invoice price, to be credited on the mortgage. That was a privilege to the Millville Improvement Company which enabled it to pay back the money which it had borrowed in trade to the extent of ten per cent, of the glass that it shipped; but nowhere, either in the contract or in the mortgage, is there any other provision that the mortgage and interest shall be paid in glass. The contract declares, save as to this ten per cent., that payments shall be made in money, as expressed on the face of the bond and mortgage. The separate agreement, which provided for the loan, was, so far as the bond and mortgage were concerned, completed and executed when the bond and mortgage were given. The privilege of payment of ten per cent, of the invoice price as a credit was an opportunity which the defendant might have whenever it made shipments of glass in accordance with the preceding orders. There was no agreement that shipments of glass should be the mode of payment, but only that in case shipments of glass were made, ten per cent, of them should go on the mortgage as a credit.

Counsel for the defendant insists that this mode of payment provided in the contract was part of the mortgage, and that the two must be held to stand together. I do not see that this provision has any relation to the mortgage except to afford to the defendant an opportunity to pay in that way. If its shipments before the mortgage money, fell due and payment of it was demanded had amounted to so large a sum that ten per cent, of them would pay the mortgage, it would have been thus satisfied. But there was no provision that that should be the only mode of payment, nor is there any provision in the contract anywhere that the time of payment of the loan (stipulated in the mortgage to be paid within six months, I think,) should be extended until such time as the ten per cent, deducted off of the price of the invoices shipped should satisfy the mortgage, and yet that is the contention on the part of the defendant.

There is nothing in the contract or in the mortgage, or in any of the transactions between the parties which indicates to me that the mortgage was given as security for the performance of the contract, as was insisted by the defendant’s counsel in his opening. I am, therefore, of opinion that the mortgage has no such relation to the contract set up in the answer, that it postponed the time when the mortgage became payable or provided any specific mode of payment of the mortgage other than that named in the bond and mortgage themselves.

Now, necessarily, that makes an end of all questions as a defence to this foreclosure which are raised by counsel for the defendant, touching the performance of the contract, interference with the performance of the contract, excuse for delay in the performance of the contract, or any other of the incidents which attended upon the requirements of the contract, either upon the part of the Pittsburgh Plate Glass Company, or of the Millville Improvement Company. However, setting aside that view of the case, which, in my judgment, shows conclusively that the complainant is entitled to the relief here sought, if I did consider the mortgage as so attached to the contract set up in the answer, that a performance of the contract by the defendant would be an answer to the seeking of the complainants to foreclose the mortgage, I am still of opinion that the defendant company has failed to show any such performance of its own side of the contract, or any such excuse for non-performance as relieves it from' the obligation to respond to this mortgage in accordance with its expressed terms. In short, I think there has been sufficient departure of the defendant company from the terms of the contract shown here to justify the complainant in canceling the contract and insisting upon foreclosure of the mortgage. It is not necessary to state the details of the proofs in that regard. Against my conviction of its irrelevancy, the defendant has been permitted to open its defence wide enough to present that theory, but it has failed to sustain it.

A decree will be advised that the complainant is entitled to a foreclosure of the mortgage, notwithstanding the facts set up in the answer and proofs.


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    James Lemuel Palmer et al. v. Senneca Sinnickson et al.
    [Filed May 5th, 1900.]
    -h A lunatic must sue by guardian who has been appointed by the order of some competent court,' and a bill which avers the lunacy of a complainant, and that she sues by her next friend, without any averment of appointment, &c., is demurrable.
    2. A bill to quiet title cannot be filed by persons who claim an interest in lands, but who are not in possession of any of them, either under the statute of 1870 (Gen. Slat. p. 3486) or under the general equity powers of this court.
    3. Equity will not entertain a suit in which no equitable question is presented, which seeks a decree that the complainant’s legal title to lands is good, and that the defendant’s legal title is bad. Such questions must be determined by a suit at law.
    On demurrer to bill to quiet title, &c.
    The complainants are the grandchildren of James B. Sinnickson, deceased, who was devisee under the will of Jane Sinnickson, by the following devise:
    “I give and bequeath all the residue of my estate after the payment of debts, both real and personal, to my nephew, James B. Sinnickson, and in case he shall die without children, my will then is that both my real and personal estate be divided equally among his surviving brothers and sisters.”
    Jane Sinnickson died in 1823, and, under the above devise, James B. Sinnickson received an undivided third part of a farm in Lower Penn’s Reck, in Salem county. He afterwards acquired the other undivided two-thirds in fee. In 1862 he conveyed the entirety of the farm to one Benjamin Lloyd, with covenant of general warranty. To protect the purchaser from the contingency of James dying without children, a part of the purchase-money was secured to be paid by a bond and mortgage upon a farm in Delaware. The condition recited was—
    “The condition of this obligation is such that if the above-bounden Matthias Jerman, his heirs, executors, administrators or any of them, shall and do well and truly pay or cause to be paid unto the said James B. Sinnickson, his children, or Benjamin Lloyd, of Salem, New Jersey, the just sum of four thousand dollars with lawful interest on the same, the interest to be paid annually to the said J ames B. Sinnickson, from this date, so long as he shall live, and in six months after the decease of the said James Sinnickson, the principal shall be paid to the children of the said James B. Sinnickson, provided they make a deed of sufficient title to Benjamin Lloyd, of the city of Salem, New Jersey, his heirs or assigns, for the one-third of a certain farm conveyed to the said Lloyd by the said James B. Sinnickson, Feby. 27, 1862, the said one-tliird part was willed to the said Sinnickson by jane Sinnickson (see book C, Surrogate’s office, Salem, N. J., folio 105), but if the said James B. Sinnickson shall die leaving no children, then this bond and the accompanying mortgage shall become due and payable to the said Benjamin Lloyd, his heirs or assigns.”
    By various conveyances, Hannah L. Steward has now come to be the owner of the farm.
    In 1898, James B. Sinnickson died, leaving him surviving his grandchildren, the complainants, who claim to own the undivided one-third of the farm devised in Jane Sinnickson’s will, and profess themselves willing to convey it to Hannah L. Steward, and have notified the Smyrna Bank, the owner of the Delaware mortgaged lands, of James’ death, and their willingness to convey and receive payment of the mortgage-money, interest on Avhich has been paid up to 1898. The bank Avas Avilling to pay the mortgage-money, provided the payment could be safely made, in view of the fact that the defendants (avIio are the surviving sister and brother of James B. Sinnickson, and who claim to own the undivided one-third of the farm, under the second limitation OAmr in Jane Sinnickson’s will) have notified the bank not to pay the mortgage-money to the complainants.

      The complainants’ bill alleges that the defendants dispute-their title to the undivided one-third of the farm, and claim to-own the same; that no suit is pending to test the validity of their claim, which the complainants assert is without foundation and vexatious, and an injury to the complainants, as it prevents-them from giving a satisfactory deed to Hannah L. Steward, and from collecting the mortgage-money from the Smyrna bank. The bill prays that the defendants may set forth their title to the one-third of the farm, and whence derived, and that this court may by decree settle the rights of all the parties to this-suit by decreeing that the complainants have a perfect title-thereto, and that the defendants have none.
    One of the complainants, Sarah H. Palmer, is stated in the-bill to be a lunatic, and to sue by her next friend, James Lemuel Palmer. There is no recital of any adjudication that the complainant is a lunatic, nor is any order appointing James Lemuel Palmer her next-friend or guardian referred to in the bill.
    The defendants demur to the whole bill, and allege as causes of demurrer:

      First. That the lunatic complainant prosecutes by her next-friend and not by guardian.

      Second. That the bill shows that the complainants have no interest in the farm, as it avers that Hannah L. Steward has-now by various conveyances become the owner of it.

      Third. That the bill lacks equity in that it does not allege-that the complainants are in the peaceable possession of the-lands in question, or any part thereof.

      Mr. Israel B. Grant and Mr. William J. Baches, for thedemurrants.

      Mr. William T. Hilliard, for the complainants.
   Grey, V. C.

This case has been so fully presented that I can dispose of it’ as effectually now as at any other time.

The first cause of demurrer is that there is a lunatic com-.plainanfc who prosecutes by her next friend, and not by her guardian. Norcom v. Rogers, 1 C. E. Gr. 484 and Dorsheimer v. Roorback, 3 C. E. Gr. 438, are cited as sustaining the objection. In the first of these cases a declared lunatic filed a bill in his own name against his guardian, to which a demurrer was .filed'. Chancellor Green held that a lunatic sues only by his committee or guardian, or by the attorney-general or next friend where the interests of the guardian clash with those of the •lunatic. That the objection, if it appeared on the face of the bill, could be raised by demurrer or by motion to take the bill from the files. In that case the demurrer was withdrawn and .the bill was ordered to be taken from the files. In Dorsheimer v. Roorback the bill was filed in the name of an idiot by his next friend, but without his having been appointed guardian upon inquisition found, and without any order authorizing him to file the bill as the lunatic’s next friend. Chancellor Zabriskie •declared that a lunatic must sue by guardian appointed, either on inquisition found or specially appointed, and ordered the bill to be removed from the files.

In the case under consideration one of the complainants is -stated to be a lunatic, who sues by her next friend, but there is no averment that the party who thus seeks to act for the lunatic has been in any way appointed her guardian or that he has been admitted by any order of the court to appear as her next friend. In the absence of such a recital it cannot be assumed that such an authority has been conferred. The face of the bill, therefore, shows that one of the plaintiffs cannot maintain the suit. This may be taken advantage of by demurrer and is fatal to the whole bill. Story Eq. Pl. § 505 note 3.

The real question, however, which is the essential matter •argued between the parties is presented by the second and third •causes of demurrer. These deny the complainants’ equity because the bill alleges that another person, not a party to the suit, is the owner of the premises, to quiet the title to which the complainants olaim the right to have a decree and because the bill makes no statement that the complainants are in the peaceable possession of the lands.

The complainants claim to occupy a position which entitles them to file a bill under the provisions of the act of 1870 (Gen. Stat. p. 3486), to quiet title, in accordance with the mode of procedure'prescribed in that act, or if not under that act, then under the general equity powers of this court.

Taking up the claim that the complainants have a status to file this bill under the act of 1870, I think it is very clear that they have not. The statute prescribes the class of persons who may file bills to compel the determination of claims and to quiet titles. It is declared in the very first line of the act'“ that when any person is in peaceable possession of lands in this state claiming to own the same,” &e., he may bring a suit in chancery to settle the title of the said lands. The complainants’ bill in this case coutains no allegation whatever that they are in the peaceable possession of the land. The showing of an actual peaceable possession is an absolutely essential requirement, recognized by a line of cases beginning with Powell v. Mayo, 9 C. E. Gr. 178, and coming down to Oberon Land Co. v. Dunn, 11 Dick. Ch. Rep. 749, which makes it entirely clear that, in order to give this court jurisdiction at all under the statute of 1870, the complainants must be in the peaceable occupation of the land under a claim of ownership.

The bill not only fails to allege any possession in the complainants, but it substantially intimates that another person— Mrs. Steward, who is not made a party — is in the actual possession of the premises, claiming to own the same. The bill cannot be maintained under the act of 1870.

The complainants say, however, that they have a status to invoke the aid of a court of equity for the relief they seek, irrespective of the express provisions of the statute, because they say that it is only by such a bill that they can have the relief whic-h they claim, namely, a recovery of the one-third interest in the farm, which they insist they are entitled to have as devisees of the first limitation over under Jane Sinnichson’s will, or a recovery of the $4,000 conditioned to be paid in the Jerman mortgage on the Delaware farm, now held by the Smyrna Bank. They contend that they, although grandchildren of James B. Sinnickson, are yet, by the true construction of Jane’s will, his children, entitled to take what they claim is the first limitation over under her will.

The complainants have a right to present their claim by a proper suit and to have it determined, but it does not follow that their present suit is, for that reason, justified.

Since the passage of the statute prescribing the circumstances under which bills to quiet title may be filed, it may be questioned whether a bill seeking the same relief, but which does not show compliance with the statutory requirements, ought to be entertained. But irrespective of this point, the general equity jurisdiction, independent of the statute, can only be invoked by a plaintiff in possession of the land holding the legal title, and even by him, only under special circumstances of vexations of multiplied litigations, justifying the action of a court of equity. Pom. Eq. Jur. § 1396.

'Equity will not, where no equitable question is presented, entertain a suit to declare, as is asked in this bill, that the complainants’ title is good, and that the defendants’ claim is bad. The determination of the sufficiency of purely legal titles to land disassociated from questions of trusts or other matters of

an equitable nature,' must be invoked in the courts of law. Hart v. Leonard, 15 Stew. Eq. 419; Torrey v. Torrey, 10 Dick. Ch. Rep. 414; Fahy v. Fahy (March 14th, 1899), 13 Dick. Ch. Rep. 210.

If Mrs. Steward is in actual and peaceable possession of the farm, claiming to own it, and should file a bill to quiet title making the complainants herein, who claim under the first limitation over in Jane Sinnickson’s will, and the defendants herein, who claim under the second limitation over in that will, parties defendant to such a bill, the case would bear a very different aspect.

The complainants’ counsel insists that they must file this bill in order to have determined their title, so that they may claim the mortgage-money from the bank. This is no ground upon which equitable jurisdiction can be based. The complainants assert a legal title in themselves by the construction which they put upon the first limitation over in Jane Sinnickson’s will. There is nothing to prevent them from bringing an ejectment against the person in possession. They must recover, if at all, upon the strength of their own title and not on the weakness of the defendants, and if they show themselves entitled to it they may recover and tender a deed and thereafter sue the bank, averring performance of the conditions of the bond. Or they may, if they choose, tender performance of the conditions required by the bond before establishing their title and sue the bank for the money secured by the mortgage, and in that suit present the question whether they are within a’ class to whom the first limitation over is devised.

In this matter it is neither necessary nor proper that the will of Jane Sinnickson should be construed, nor that a mode of •successful procedure to assert rights claimed under that will should be indicated. It is enough to ascertain that the present suit invites a court of equity to consider and determine between two opposing sets of devisees, both of whom are out of possession, a contest as to the legal title to lands, disconnected from any equitable question whatever. Such a bill cannot be entertained.

For the reasons above stated a decree will be advised sustaining the demurrer, with costs to the demurrants.