author: Foster, V. C.

text:
    Nellie Perry Wells et al. v. Fidelity Trust Company, executor, &c., of J. Brodhead Woolsey, et al.
    [Submitted July 19th, 1921.
    Decided July 29th, 1921.]
    1. In a suit to enforce specific performance of a contract to leave certain property by will, witnesses who -were made parties by defendants' counter-claim, and who assigned their interests- to complainant, their sister, are not competent, where it is clear that the assignments were made to evade the statute and without adequate consideration.
    2. Evidence held to show that the witnesses who so assigned their interest are incompetent.
    3. It is impossible to render witnesses'incompetent by the subterfuge of making them parties to a suit.
    On bill, &e.

      Messrs. Pitney, Iiarim -cG Slcinner (Mr. Alfred F. Slcinner and Mr. Élair Beiley), for tile complainants, and for Jennie Tunbridge, Jennie Fletcher, James Perry and Emily Tunbridge, defendants.

      Messrs. McCarter ,cG English> for the defendants James Perry Woolsey and others.

      Mr. Charles' C. D'eidbel, for the defendant Veronica Rensler.

      Mr. Francis Lafferly, for the defendant Fidelity Trust Company.

      Messrs. Schwartz & Schwartz, for the defendant John Robinson.
   Foster, V. C.

This is an action to establish, and to secure the specific performance of, an agreement alleged to have been made by J. Brodhead 'Woolsey with complainants and others, who are collateral relatives of his wife, under which it is claimed he agreed to leave to them by his will certain property which had come to him by the will of his wife.

Mrs. Woolsey, who, was the aunt of complainant, executed her will on August 27th, 1907, and died on September 24th following. By her will she gave practically her entire estate (which had come to her from her father-, James, Perry) to her husband, J. Brodhead Woolsey, subject to the loss of it .in case of his remarriage.

Eor years Mrs. Woolsey had been afflicted with Bright’s disease and was addicted to the use.of laudanum. Because of the feeble, physical and mental condition which complainants claim Mrs. Woolsey was in at the time she executed her will, about a month before her death, thejr allege that complainants, or some of them, and other relatives of'Mrs. Woolsey, threatened to contest the probate of her will, and that Mr. Woolse}1, in order to avoid such a. contest, made the agreement in question, the consideration for which was the forbearance .on the part of complainants and the others, from making tire contest, and in permitting the will to.be admitted to probate without objection.

Mr. Woolsey died on August 19th, 1919, leaving a will executed by him on December 7th, 1918, by which he gave the bulk of his estate, including what remained of the property he had received from his wife, to his nephew, the defendant James Periy Woolsey. In his will Mr. Woolsey made some provision for tire complainant Mrs. Nellie Perry Wells and others of his wife’s relatives, and he stated therein that “I have made no provision for my nephews James and Clarence Perry, for the reason that I have made srrbstantial advances to each of them;” and tire proofs show that very substantial advances were made to James Perry.

About two months after Mr. Woolsey’s death, about October 31st, 1919, James Perry, one of the beneficiaries of the alleged agreement, assigned his interest therein, and in the estates of both Mr. and Mrs. Woolse)r, to his sister, the complainant Mrs. Nellie Perry Wells; and about November 3d, 1919, Mrs. Emily Tunbridge, another beneficiary under the agreement, made a similar assignment of her interest to Mrs. Wells, and this suit was then begun, January 3d, 1920. The defendants James Perry Woolsey and others filed their answer and counter-claims against James Perry and Mrs. Tunbridge, making them parties to and asking for a determination in this action of their respective interests, under the alleged agreement, and in the estates of Mr. and Mrs. Woolsey.

From the record it is clear that there is not sufficient; evidence to establish the alleged contract without the testimony of Mrs. Tunbridge and James Perry. Their evidence was received against defendants’ objection, under the reservation that it would be removed from the record if due consideration of their assignments and the circumstances connected with their execution, and the consideration and purpose for which they were made justified that course.

Having reached the conclusion that without the evidence of James Perry and Mrs. Tunbridge the proofs are not sufficient to establish the alleged agreement, it becomes necessary to determine if the assignment of their respective interests removed the bar of the statute (section 4 of the Evidence act) and qualified them to give testimony respecting their conversations and transactions with the decedent, J. Brodhead Woolsey, which resulted in the contract in question. From the proofs it appears that James Perry executed the assignment under tire following circumstances: In October, 1919, he was confined in the penitentiary at Caldwell, in this state, for embezzlement; some time in this month his brother Clarence, one of the complainants, called on him and they discussed Mr. Woolsey’s will; later, Mr. Reiley, of counsel with complainants, called and explained to him that it was necessary for him to assign his interest under tire agreement in order to qualify him as a witness in this- action, which was then in preparation, and some one suggested to him the cancellation of his indebtedness to his sister Mrs. Wells as an ostensible, if not an actual, consideration for the assignment.

Perry testified that his reasons for executing the assignment were: “Well, I wanted to render my sister a service; we will count that as the first; and, in the next place, I wanted to be released from my indebtedness to her.”

He added that what he had in mind in rendering his sister a service was that he might be freed from his disqualification as a witness and free to testify in her behalf as a witness in this suit.

The indebtedness he referred to amounted to about $20,000, which Mrs. Wells had advanced to him, or had been compelled to pay as an endorser on his notes. The last of these payments having been made eight or nine years before the assignment was executed; when the assignment was made, Perry knew her claim was barred by the statute of limitations; and he was not then, and for some years had not been, financially responsible. Aside from Perry’s statement, no explanation is offered for the adjustment and settlement of Perry’s indebtedness to Mrs. Wells'at this particular time; nor for his acceptance from her, as a consideration for this assignment, of the cancellation of this uncollectible indebtedness — an indebtedness that amounted to but, one-third of the $60,000 he estimated as his share in the estates of Mr. and’Mrs. Woolsey.

The explanation given by Mrs. Tunbridge for assigning her interest in the agreement to her cousin Mrs, Wells is equally unsatisfactory. It appears from her statement that Mrs. Woolsey frequently said that she intended to leave Mrs. Tunbridge $2,000 in her will, or through Mr. Woolsey; that! neither of them made this provision for her, and she had decided “she would not fight for her share.” She told Mrs. Wells, while this suit was in preparation, that she “would sign off anything to her because she [I] didn’t expect to get anything. I withdrew my hands of the whole thing, but I would do what I could for her and what I knew I would be willing to testify.” She further states that she executed the assignment “because there was, nothing coming and I wanted Mrs. Wells to have all that was coming to her. I wasn’t going t.o fight for any share or anything at all.” Tt is clear that Mrs. Tunbridge executed the assignment because she had concluded she would never receive the expected legacy, and her view of the matter was apparently confirmed after her talk with Mrs. Wells, and by the contents of a letter dated October 29th, 1919, which she received, with the form of assignment, from counsel for complainants. In this letter counsel informed her that her right “was an extremely hazy and. uncertain one and. could not be enforced without a suit, the result of which would necessarily be a very doubtful one,” and counsel further informed her that if she continued the owner of the right to this legacy, they would have to make her a party to the suit, and this would disqualify her from testifying. A few days after the receipt of this letter Mrs. Tunbridge executed the assignment. The consideration for 'the assignment from Mrs. Tunbridge is her love and affection for Mrs. Wells. During the ten or more years that elapsed between the date of Mrs. Woolsey’s death and the execution of the assignment, such manifestation of her love and affection for Mrs. Wells was never considered necessary by either of them; and this assignment, as an evidence of love and affection, was brought into existence as a result of their conference about this ease and by the letter from complainants’ counsel.

The consideration foi Perry’s assignment consisting, as it does, of the cancellation of an uncollectible debt, amounting to only one-third of his interest in the agreement in suit, is wholly inadequate, taken in connection with his admitted indifference to the indebtedness, owing by him to his sister, to support the claim that his assignment was made in good faith, for the purpose of absolutely disposing of his right to receive $60,000, or some-substantial part of it, in the event of a successful outcome of this litigation. The history of Perry’s relations with his sister refute his pretence that he unselfishly desired to help hej in this litigation by the sacrifice and surrender of all his interests therein.

For years his conduct compelled her to sacrifice her property, her money, and even her jewelry, to pay his'debts; and for yoars thereafter he made no. effprt to repay her. The idea of finally making such payment, by this so-called assignment, did not even originate with him; that came from counsel with complainants, and they made the suggestion for the purpose, if possible, of making the assignment bona fide and to thereby qualify Perry as a witness in these-proceedings.

It is apparent that this pretended cancellation of a worthless indebtedness is a mere subterfuge, designed to obscure the fact that this assignment, like the Tunbridge one, was made solely for the purpose of removing the assignor’s disability as a witness; and to permit this evident purpose to be accomplished would be to sanction a fraud upon the statute. Platner v. Ryan, Executor, 76 N. J. Law 239; Allfather v. Schlicher, 86 N. J. Eq. 1; Palmateer v. Tilton, 39 N. J. Eq. 40; Hodge v. Coriell, 44 N. J. Lem 456; Cullen v. Woolverton, 65 N. J. Law 279. and Clendennin v. Claney, 82 N. J. Law. 418.

From the circumstances narrated, I am unable to find that either of the assignments were made in good faith, for the purpose of transferring to, and absolutely vesting in, Mrs. Wells all of the interests of tire assignors in the result of this litigation, and in the estates of Mr. and Mrs'. Wells; and I conclude that the sole purpose for which' the assignments were suggested and made, was to evade the bar of the statute, and by such evasion secure the testimony of the assignors, to establish this alleged agreement. This purpose is so apparent that the assignments defeat the object they were intended to.achieve, and, therefore, the testimony of Mrs. Tunbridge ' and of Mr. Perry will be stricken from the record.

This conclusion has been reached without considering the effect, if any, upon the admissibility of the evidence of Mrs. Tun-bridge and Mr. Peny, of the fact that by the counter-claims they have been made parties to the action.

If it were necessary to consider them as parties, admittedly made such for the purpose of preventing them from testifying, I should regard, with the same suspicion, the pleading making them parties, as I regard the assignments intended to qualify them as witnesses; as it is just as impossible to raise the bar of the statute by a subterfuge as it is to remove it by such means.

The record, corrected by the elimination of the evidence of the assignors, not being sufficient to establish the agreement, I will advise that the bill be dismissed.


source: Caselaw Access Project

author: Buchanan, Y. C.

license: Public Domain

text:
    Samuel Schwartz v. Lena Hoerster.
    [Decided July 2d, 1921.]
    A bill for specific performance of an oral contract to execute a written contract for the sale of lands, will be dismissed for want of equity.
    On motion to dismiss bill.

      Messrs. Reed, Hetfield & Grane, for the motion.

      Mr. William Newcorn, opposed.
   Buchanan, Y. C.

Complainant, by his bill, alleges a promise by defendant (the owner of certain real estate in Plainfield) to execute a written contract for the sale and conveyance thereof to complainant, and her failure to carry out that promise; and prays that she be decreed specifically to perform the same. Defendant’s motion is to- dismiss, for want of equity and failure to disclose a cause of action, and because of the statute of frauds.

As to this latter point the rule is that where the bill alleges a contract of sale without stating whether oral or written, the bill will be sustained on motion to dismiss, but where the bill states the contract as oral, it will be dismissed on motion. Douma v. Powers, 92 N. J. Eq. 25, and cases cited. In the present ease the bill sets up an oral promise — not, however, an oral promise to convey, but an oral promise to execute a. written promise or contract to convey; arid complainant’s contention is that the statute of frauds does not apply.

The statute, it is true, deals with actions upon a "contract or sale of lands, tenements or hereditaments or any interest in or concerning them.” Possibly, complainant’s ingenious argument that a verbal contract to execute a written contract of sale of lands does not come within the statute, may be sound as far as it goes; it is unnecessary to consider the question. The trouble is that complainant does not allege a contract to execute the written contract, but sets up merely a promise — shows no consideration for the promise, no fraud, no estoppel, nothing at all upon which a right to maintain an action xipon that promise, in this oi* any other court, can be based.

But even if it be assumed that complainant shows the existence of consideration for the alleged promise, nevertheless, I think defendant’s motion must still prevail. The statute of frauds is one of great antiquity, preventing the enforcement of any liability on a contract for the purchase or sale of interests in lands (in the absence of any special circumstances taking the case out of this statute) unless such liability be evidenced by a signed written memorandum; and, therefore, from the practical or laymen’s point of view, preventing the arising of any such liability. Persons contemplating the sale or purchase of lands thus rely, and have the right to rely, on the belief that unless and until they bind themselves in writing thereto, they are not irrevocably committed to the contemplated act. The persons on the other side of the negotiations have the same knowledge and understand that they cannot rely upon an oral promise. The allegations of the bill show that complainant in the instant case had that knowledge. The averments are that a real estate agent, authorized or claiming to be authorized by defendant to negotiate a sale of the lands in question, told complainant that defendant would sell for $11,000. Complainant said he would pay $11,000, but upon the agent going back to defendant to arrange terms of payment, &c., she changed her mind and wanted $18,-000 for the property. Complainant agreed to the $18,000 and then the price went up to $19,000, and this was repeated by successive further steps of $19,500, $20,000, $21,000, $22,000 and $23,000. At the $23,000 price all the other terms were also agreed upon, and defendant promised to. sign' the written contract (which complainant presented, executed by himself), but again changed her mind — refused to sign — and asked $25,000. Defendant’s conduct, doubtless, lias been the cause of irritation to complainant, but he could at any time have declined further negotiations unless she submitted a, written and signed offer, by which she would be bound if and when accepted by complainant.

Complainant’s object in the present suit is of course to get the property. He asks this court to decree, not the performance of an oral contract to convey, which he knows would not be decreed against the interposition of the statute, but to go one step back of that and decree the performance of an oral contract or promise to execute a written contract, which latter he could thereupon ask this court specifically to enforce. I can see no equity in such a bill — certainly, with no' other facts than axe here set up. A decree of: dismissal will be advised.


author: Buchanan, V. C.

text:
    In re Howard F. Streeper.
    [Decided November 7th, 1921.]
    1. Where, on appeal, a decree in chancery has been affirmed with modifications, . the decree to be entered in chancery on the remittitur, modifying or amending the original decree in such manner as to accomplish the directions of the appellate decree, may provide for such amendment or modification in words at length or in other special form, but the usual practice is to provide that the appellate decree be made the decree of the court of chancery, and this should not ordinarily be departed from.
    2. Habeas corpus proceedings, looking to the discharge, on the ground of his present sanity, of a person committed to the state hospital as insane, has no effect upon or relation to lunacy commission proceedings resulting from the appointment of a guardian for the lunatic; in the one proceeding the question is whether or not such person is sufficiently sane to render liis further confinement unjustifiable; in the other it is whether or not he is sufficiently sane to he able to manage himself and Ms affairs • .
    Í!. The discharge of such a patient on such habeas corpus proceedings does not of itself operate to terminate such guardianship; nor can any order terminating such guardianship be made in such habeas corpus proceeding's ; the termination of such guardianship can only be -accomplished through independent proceedings, ...

      On hateas corpus. On motion for decree on remittitur.

      Mr. Powell K. Martin and Messrs. Wescolt ¿6 Weaver, for the petitioner.

      Mr. John Boyd Avis, for the respondent.
   Buchanan, V. C.

The petitioner, Howard E. Streeper, was confined in the New Jersey State Hospital as an insane person. He had also been adjudicated a lunatic, in the usual lunacy commission proceedings in this court: and upon that decree, a'guardian had been appointed for him by the Gloucester orphans court, pursuant to section 1 of the act concerning idiots and lunatics. 2 Comp. Stat. p. 2782.

Later, believing himself sane, he sought to be discharged from the state hospital, and to that end obtained the issuance of a writ of hateas corpus from this court, under section 13 of the statute relating to lunatic asylums, in effect at the time of his commitment, P. L. 1913 ch. 250 — (the present statute, P. L. 1916 ch. 94 § 36, is similar) — and the act (P. L. 1898 p. 231) dealing with writs of habeas corpus in respect of patients in hospitals for the insane. Both statutes provide that on such habeas corpus proceedings the patient shall not be discharged unless found to be “sane.” The statute ^concerning lunatic asylums (supra), however, by section 10 thereof (likewise the present statute, P. L. 1916 ch. 94 § 33), excludes idiots, imbeciles and feeble-minded persons from the category of insane persons under the meaning of that act, the necessary inference being that such persons are to be deemed sane (since, if one is not insane, he must be sane) under that act and may be discharged on hateas corpus.

On the hearing on the writ in question this court found the petitioner mentally affected, but hot insane under the meaning of the act referred to. The actual adjudication in the decree or order was that he “is now a person of feeble mind but not insane under the provisions of the act,” &c., and the order thereupon 'proceeded to direct his discharge from imprisonment in the state hospital, adding that he “be remanded to the custody of Lewis Starr, Esquire, his duly-appointed guardian.”

From this order or decree the petitioner appealed, alleging the same to be erroneous in adjudging petitioner to be of feeble mind and remanding him to the custody of the guardian aforesaid. The court of errors and appeals affirmed the decree of this court, but with a modification, to wit, the elimination of the clause remanding him to the custody of his guardian. Vide the opinion, 114. Atl. Rep. 409.

On the corning down of the remiiiilur, the petitioner has now applied for the entry of the decree in this court thereon and presented a draft of such decree. This I decline to advise; and I likewise decline to advise a decree in any of the several alternative forms suggested by petitioner’s counsel orally during the course of the hearing on this motion, for reasons which I shall proceed briefly to explain.

On a decree of affirmance by the court of errors and appeals, in the ordinary case no, action thereon by this court is necessary —the original decree of this court remains in full force and effect. On a decree of reversal the appellate decree does not in and of itself alter the original chancery decree, but it becomes the duty of this court to vacate its original decree and substitute therefor a decree comprising such adjudications and decretal provisions as conform to the directions of the decree of the appellate tribunal. The practice is to- enter a decree “that the decree of the court of errors and appeals be and the same is hereby made the decree of this court.” This practice commends itself to reason on two grounds — first, because it obviates, as far as possible, any risk of misinterpretation by this court of the directions of the court above and consequent failure to conform thereto (leaving such possibility open only in eases where further proceedings are to be had in this court subsequent to the entry of the decree on the remittitur), and second, because it leaves the appellate court (by itself and the appellate counsel as its officers) the responsibility of framing its decree with sufficient explicitness to accomplish the carrying into effect of those decretal provisions which in its opinion the court, of chancery should have made, and should now make, in the place and slead of those originally made, a responsibility which it seems not unreasonable that the appellate tribunal should thus assume.

On a decree of affirmance with modifications, the course to be pursued by this court is to enter a decree amending or modifying its original decree in such manner and with respect to such particulars as the appellate decree directs, leaving the original decree otherwise undisturbed. In the present case the modification or amendment to be accomplished in the 'original decree would seem to be the vacating or elimination of that portion thereof which reads, “and is remanded to the custody of Lewis Starr, Esquire, his duly-appointed guardian;” inasmuch as the remittitur shows the appellate decree to. be “that the decree of the chancellor be affirmed, with costs, but modified in accordance with the opinion of this honorable court, to the end that the said Howard E. Streeper shall receive his unconditional discharge.” The necessary amendment or modification, doubtless, might be done by the entry of a decree by this court in words, at length, or in other special form. The usual practice, however, is for a decree that the appellate decree “be and the same is hereby made the decree of this court,” and the reasoning hereinbefore referred to would seem to support with equal cogency the propriety of such a course as well in cases of modification as in cases of reversal. T see no reason to depart therefrom in the present instance; on the contrary, the circumstances serve to confirm the advisability of adhering thereto.

Petitioner, in the language of the operative portion of the draft of decree submitted by him, asks the court to “order, adjudge and decree that the said Howard E. Streeper is a sane person and not of unsound mind, and is entitled to receive his unconditional discharge from the state hospital.” In view of the fact that this court found in fact that Streeper was feeble minded, and embodied such finding in the final decree, and that the finding and decree were specifically appealed from and affirmed, additional comment seems unnecessary. One or two of the modifications orally suggested by counsel were open to the same objections.

Other suggested forms of the decree were in terms which I cannot now specifically recall, but were, in substance, that the decree should, provide, in effect, for the termination of Mr. Starr’s guardianship^ or the discharge of Streeper (and, I think, his properly) from the care or custody of such guardian. Such a provision .(even if reference to petitioner’s property were omitted) would be improper for two reasons.

In the first place, the opinion of the court of errors and appeals points out that the proceedings on habeas corpus for the discharge of an inmate of the hospital for the insane, on the ground that he is not now insane, are purely statutory, and that the jurisdiction, power and authority of this court in such proceedings are likewise purely statutory and include only (since the statutory grant of power extends no further) the determination of the patient’s sanity or insanity and the discharge of the patient from the confinement complained1 of, if he be found sane; hence, that the provision in tire decree remanding peti- • tioner (the opinion speaks of the decree as “committing” him, whereas the decree uses the word “remanded”) to the custody of his guardian was without statutory warrant or authority and therefore erroneous. It must, then, be apparent' that any provision purporting or attempting to terminate the guardianship or the guardian’s custody or control over petitioner (supposing the court otherwise inclined to make such provision) would be equally without warrant or authority and erroneous.

It may be added that there is no indication whatever, in either the opinion or the decree of the court of errors and appeals, of any intention 'to express or intimate that the decree on the remiititur should direct the termination of the guardianship or the guardian’s control. The opinion, as I have said, indicates precisely'the contrary. So, also,'does the decree, for reference to the record in that court shows that an amended decree was entered therein two' weeks after the original (although for some reason the amended decree has never been certified to this court). The amendment consists (only) in the addition, after the words “shall receive his unconditional discharge,” of the words “from the state hospital.” The addition of this limiting clause would' seem to denote an intent that the decree should not be construed as directing his discharge from the care and custody of his guardian.

Neither is there anything in the opinion indicative of belief or decision on the part of that court that the effect of the chancery decree with the direction of remand to the guardian eliminated, would be in anywise to deprive the guardian of,, or discharge him from, the power or the duty of the Ca,re and safekeeping of the petitioner imposed upon such guardian by the statute (2 Comp. Stat. p. 2781 § 1) and the order appointing him. It would seem clear that no such effect can so result, for this proceeding looking to petitioner’s discharge from confinement is entirely separate and1 distinct from any proceeding looking to the appointment or discharge of a guardian; and the issues in the two proceedings are absolutely different.

In the second place, because of this fact just mentioned, of the difference between the issues in the two kinds of proceedings, this court would not, even if it had the power in this proceeding, include such a. provision in its final decree as originally entered (to say nothing of the situation after appeal and remittitur) The hearing was not had upon the issues which would be involved in a question of guardianship. The sole issue raised by petitioner, and; tire sole issue tried, was that of his mental condition with regard to the justification of his continued restraint by confinement in the hospital. The difference between this issue and an issue as to whether or not his mental condition is such as to justify the continuance of a guardianship of his person and property is apparent. It would seem entirely clear that a man may be mentally afflicted in such nature or degree as to render him incapable of managing himself or his affairs, and hence to require the appointment of a guardian for his person and property, and still not be mentally afflicted in such nature or degree as to warrant or require his confinement in the state hospital. To put an extreme illustration, a hopeless idiot or imbecile cannot be so confined, under the Asylum act (P. L. 1916 ch. 94 since, by section 33, he is not to be1 deemed insane, and an adjudication of insanity is a prerequisite to his commitment —sections 15, 18 (and) so also in the prior act of 1913).

Surely, then, evidence taken on an inquiry aimed solely at determining whether or not the man’s mental condition is such as to justify his confinement in an institution can afford no proper basis for a determination or adjudication as to whether or not his mental condition is such as to justify the continuance of a guardianship^ particularly when the finding on the inquiry actually had is that he is in some degree mentally affected.

The object which petitioner desires to. accomplish, namely, the termination of the guardianship, must be sought by means of independent proceedings.


text:
    In re Howard F. Streeper.
    [Decided November 7th, 1921.]
    1. A finding, in habeas corpus proceedings, that a person committed as insane is now sufficiently sane to render unjustifiable Ms further confinement in an institution, is not res adjudieata on an application to supersede the inquisition in lunacy; the issues in the two proceedings are different and distinct.
    2. On an application to supersede an inquisition in lunacy, an order superseding the same will not be made as of course upon proof that the lunatic has been adjudged on habeas corpus proceedings sufficiently sane to'be discharged from commitment.
    3. On such an application proofs must be taken on the issue as to whether or not the lunatic is sufficiently restored to reason to be able to manage himself and his affairs.
    On motion for order discharging guardian.

      Mr. Powell K. Martin and Messrs. Wesc-oii & Weaver, for the petitioner.

      Mr. John Boyd, Avis, for the respondent.
   Buchanan, V. C.

The facts pertinent upon this motion are set forth in the memorandum filed in the habeas corpus case (In re Streeper), on motion for entry of special decree on remittitur. Petition lias now been filed in tbe lunacy commission proceedings, reciting the habeas corpus proceedings and the findings and decree therein, and motion is made upon, the filing of such petition for an order discharging the guardian. Such motion must of course be denied.

As pointed out in the memorandum aforesaid in the habeas corpus case, a. finding or adjudication that an insane person is no longer sufficiently insane to justify his confinement in an institution is in nowise a finding that he is sufficiently restored to reason to render a guardian no longer necessary. It is not res adjudicata on the issue involved in an application to supersede the inquisition.

The course which must be pursued to reach tire end desired by petitioner is by application to supersede the inquisition. In re Hannah, 76 N. J. Eq. 237. If the present petition be deemed such an application, naturalty an order will not be made without the taking of proofs on the question of petitioner’s sanity as regards his ability to manage himself and his affairs.

The petition may, if necessarjg be amended in that behalf, and the matter may be proceeded with further in the usual manner as prescribed by the rules and practice of this court.


text:
    National Bank of New Jersey, a corporation, v. Andrew White et al.
    [Decided November 7th, 1921.]
    1. In interpleader suits, the usual so-called interlocutory decree is interlocutory only as between the defendants; as between complainant and defendants it is a final decree adjudicating complainant’s right to relief, compelling defendants to litigate between themselves only, and discharging complainant not only from further participation in such litigation but also from all liability to" defendants.

      2. Such decree is a decree m personam and cannot be entered in default of answer where it appears on the face of the record that process has been served upon one only of the two defendants, and that the other is a non-resident as to whom proceedings by publication have been had, but who has not submitted himself to the .jurisdiction of the court.
    On order to show cause why decree should not be vacated.

      Messrs. McCarter & English, for the complainant.

      Mr. Charles T. Cowenhoven, for the defendant Andrew White.
   Buchanan, V. C.

The bill of the complainant bank sets up that in .1914 the two defendants opened a deposit account udth it in the names of both; that the amount to their credit is now $402.61; that the two defendants are separated and each has demanded of the bank the pajnnent of the entire bank credit; that complainant is willing and anxious to pay the amount to whomsoever is entitled, but cannot determine to whom the same should rightfully be paid; offers to pajr the sum into court, and prays a decree of interpleader and discharge of complainant from further liability.

The defendant husband was personally served with process. The defendant wife could not.be served, she having gone to Itaty, and an order of publication was made against her and due proof made of publication and mailing under its terms.

On June 5th, 1920, after the expiration of the time for answering limited in the order of publication, an order or decree entitled an “interlocutory decree” was entered on complainant’s motion, on default of answer bjr either defendant. Subsequently, the defendant husband filed a statement of his claim to the sum in question, pursuant to chancery rule. 69,'and the'cause was thereafter referred for hearing.

Tt must be clear, upon consideration, that the decree of June 5th, 1920, was improvidently entered. The suit is in personam, not in rem. The subject-matter is not a trust fund, but a debt due on contract from the bank to one or other, or both defendants. Complainant is not concerned with the definite ultimate disposition of the sum in question and seeks no adjudication in regal'd thereto. It asks that defendants may be decreed to inter-' plead and litigate their conflicting claims without troubling complainant, that it be permitted to pay the sum in question into court and be discharged of all further liability to either defendant, or both'. The sole issue as between complainant and the defendants is as to complainant’s right to this relief, to such a decree.

The so-called .“interlocutory decree” of June 5th, 1920, is interlocutory in its nature only as between defendants. As between complainant and defendants it is a final decree, for it adjudicates complainant’s right to bring the suit and to have the relief sought; it discharges complainant of all liability to defendants, or either of them (and incidentally awards costs and a counsel fee to complainant out of the sum, which had been paid in to the clerk in chancery), and decrees the defendants to interplead and determine in this suit, in the further progress thereof, their conflicting claims to the sum in question.

Such a final decree in personam, however, cannot validly be made by this court, when jurisdiction has not been acquired over the person of one of the defendant claimants, and such’ jurisdiction is not acquired as to an absent defendant, who does not appear, by publication proceedings. Lynde v. Lynde, 54 N. J. Eq. 473; Hervey v. Hervey, 56 N. J. Eq. 424; McGuinness v. McGuinness. 72 N. J. Eq. 381. The decree is therefore void.

This is not a case where the record shows that jurisdiction has been acquired over the defendant, when, in fact, it has not been so acquired. Here it is clearly apparent on the face of the record that there was no service of the usual process and no voluntary appearance, either prior or subsequent to the publication proceedings; which publication proceedings might conceivably have resulted in defendant’s submission to the jurisdiction of the court (though they could not compel such result), and, hence, were proper to be taken. It being evident that the decree could not be valid, it should not have been entered; and, it now coming to the attention of the court, counsel for complainant and the defendant actually served were directed to show cause why the decree should not be set aside. No such cause was of course shown, ancl the decree will he vacated. It is obvious that the decree is inefficacious as well against the defendant over whom jurisdiction was acquired, since he can scarcely be required to interplead with a defendant who cannot be compelled to inter-plead with him.


text:
    J. I. Blair Reiley, executor, &c., v. Clara L. Eulper et al.
    [Decided November 21st, 1921.]
    1. To constitute a valid gift inter vivos, the donative intent which must be proven is not a mere general intent or expectation of making a gift, but a specific intent, accompanying the act alleged to constitute delivery, that then and by that act a transfer of ownership by way of gift should be accomplished and completed.
    2. Where actual delivery of an article is essential to the completion of a valid gift inter vivos, the placing of the article by the donor without the knowledge of the dtonee in a safe deposit box used by and accessible to both, or either, is not legally sufficient to constitute a valid delivery.
    On final hearing.

      Mr. Osiris D. McConnell, for the complainant.

      Mr. William TI. Morrow■, for the defendant Clara L. Fulper.
   Buchanan, V. C.

The bill in this case is filed by complainant as executor and trustee under the will of Joseph E. Fulper, deceased, to. determine the ownership of seventy-three shares of the stock of the Washington Water Company. Those facts as to which direct evidence exists are not in dispute; most of them were agreed upon by the parties, and such supplementary testimony as was offered by them respectively remains uncontradicted. The contest arises on the inferences to be drawn from the admitted or proven facts. •

Prior to March 7th, 1919, the decedent was the owner of one hundred and seventy-three shares of the stock of said-company, evidenced by a number of certificates in varying and odd amounts. On that date he filled -out, on one of the blank forms in the company’s transfer book, a formal transfer to his daughter Clara of seventy-three shares of this stock, but failed to sign it.

The company had no written rule -or by-laws as to the method of accomplishing the transfer of its shares of stock. It had a transfer book, and usually transferrers executed transfers of their stock therein; but in four other cases prior to this time transfers had been made by surrender of old certificates and issuance of new, without execution of any transfer in the transfer book.

Decedent, was at that time (and until his death) the secretary of the water company, and that company in issuing its stock certificates validated them by the signatures of its president and its secretary, the treasurer having nothing to do with the certificates.

On the same day, as secretary of the company, he canceled several certificates which he held (the certificates so canceled aggregating seventy-three shares) and replaced them in the stock certificate book of the company; filled in a new certificate made out to his daughter for seventy-three shares, and at some time thereafter (probably, on the same day) procured it to be signed by the president of the company, and then placed it in his safe deposit box at the bank. When found there after his death it also bore his own signature as secretary of the company. He also, on the same day, made the appropriate entries in the water company’s stock ledger, debiting his account with the seventy-three shares and crediting his daughter’s account therewith.

There is no evidence of any manual delivery of the certificate by the decedent to the daughter, nor -of any statement by him to her in regard to the transfer of this stock to- her — her tongue, of course, being tied by the statute. It does appear, however, that she had free access to her father’s safe deposit box, and used it, wntli liis knowledge and consent, for the safekeeping of her own valuables.

She saw the certificate on her father's desk on the day it was made out, but before it had been signed by the president of the company. Admittedly, she never saw or knew anything about it further until after the father's death. On the same day on which she sawr the incomplete certificate, as above mentioned, she also saw the entries in the stock ledger. She was at that time the assistant secretary of the company and so continued down to the date of her father's death.

On or shortly before July 10th, 1919 (some four months after the incidents of March 7th), the daughter, as assistant secretary of the company, made out a “dividend sheet” (or list of the stockholders, and the number of shares held by each, and the amounts of the respective semi-annual dividend checks to be made out to them), on which she wrote the name of her father, as the owner of the entire one hundred and seventy-three shares, and the name of herself as the owner of only one share (which she had owned for many years). She also made out or filled in all the dividend checks, including one to her father’s order for the amount of the dividend on the entire one hundred and seventy-three shares, and one to her own order for the amount of dividend on only one share. It wall he borne in mind that she had seen the unexecuted certificate made out to her name, and had seen the entries in the books evidencing the change of ownership on ’the books. She knew, of course, that the 1owner of stock ivas the one entitled to receive the dividends on that stock, for she had been for many years the owner of one share of stock in the company and in semi-annual receipt of dividends upon it; and, furthermore, the dividend sheet in question shows that instead of making an exact copy of the dividend sheet of six months earlier, she had made the proper changes thereon in respect to two instances of shares which had been in the interim transferred by one stockholder to another.

There is no evidence as to what, if any, action was taken by either father or daughter in the way of voting upon the shares in question. The minute book’of the company shows no- record of any stockholders' meeting between March 7th, 1917, and the death of Mr. Fulper. Nor do the minutes of the stockholders’ meetings of which the record does appear, set forth the names of the stockholders present or the number of shares respectively voted by them.

As to testator’s intent, in addition to the inferences to be drawn from his conduct, there is the admission in the bill of complaint that the decedent, when he procured the president’s signature to the new certificate, stated to the latter that he “proposed transferring that amount of stock to his daughter.” There is also the testimony of the bank officer, Groff, that decedent told him, on asking access to his safe deposit box (the date is not definitely fixed), that he was going to transfer- some shares to his daughter; and that on the next day he came back to the box again and said that he had done so-

The issue is as to gift inter vivos. There is no contention that any consideration was paid. If there was a completed gift of the stock by the testator to his daughter prior to- his death, she, of course, became, and still remains, the owner thereof. Cole v. Monkhouse, 50 N. J. Eq. 537. Otherwise, title remained in the testator and passed at his death to complainant, under the will.

To constitute a perfected or valid gift inter vivos it is well settled that three things are requisite — the donative intent by donor, delivery by donor and acceptance by donee.

The intent must- be proven; for, of course, a mere delivery does not of itself prove an intent to transfer the ownership of the thing delivered. Cf. Stokes v. Kaufman, 92 N. J. Eq. 554. The delivery must be proven, for mere intent, however definite and clear, accomplishes no legal result, without action upon or in furtherance of that intent. Smith v. Burnet, 35 N. J. Eq. 314 (at p. 323). Acceptance is an equally necessary element to accomplish a change of ownership-, for, of course, one cannot be compelled to accept title, even by gift, against his will. It is seldom necessary to be proved, however, since it is ordinarily presumed. In the present case it is- of course clear from decedent’s actions and declarations that he had on and about March Tth, 1919, an intent or purpose of some kind looking to the transference at some time or other of the ownership of the seventy-three shares from himself to his daughter. But proof of a mere genera! intent or purpose to make a gift is of course not sufficient. The donative intent, which must be established is, first, an intent to malee a gift as distinguished from an intent to. make a transfer of ownership for consideration or an intent to make a more transfer of possession, and secondly, an intent that the act which is alleged as the delivery or means of effectuating the gift should in fact operate to complete a then present change of ownership. In other words, the inquiry as to the intent must always be pursued with relation to the act of delivery or that which is alleged to be the act of delivery. At the time that’act, occurred, was there a co-existent intent by the donor that by that act a then present change of ownership, by way of gift should be effectuated ? If the answer be “No/’ then no valid gift results; if the answer be “Yes,” then a valid gift will be the result, provided the act be such as the law says is sufficient to constitute a delivery. Suppose the father had bought a ring, expecting to give it to the daughter on Christmas, and a week or two before Christmas had handed it to her so that she might try it on to see if it fitted. No gift results, though the'act of delivery is legally sufficient, and though there was a' general purpose to malee a gift, because there was not an intent, a.t the time of the act, that by that act a gift should be effectuated.

Two acts, in the alternative, are claimed by the daughter as constituting delivery. In the first place, she contends that the action by her father in surrendering his old certificates to the company and procuring the issuance of a new certificate in her name, was a valid delivery or a legally sufficient means of accomplishing the transfer by way of gift; that the gift was therefore complete upon the issuance by the company of the new certificate in her name, and no delivery of that new certificate to her or any other step or act was requisite. In the second place, she contends that if a delivery to her of the new certificate was requisite to complete the gift, that such a delivery was validly made by the depositing of the certificate in the safe'deposit box used jointly by herself and her father.

I think there can be no doubt as to the unsoundness of tire second contention. If the delivery of the new certificate to her was necessary to effectuate the gift, no gift was made, for the alleged delivery was not legally sufficient. If the father had not theretofore stripped himself of dominion and control over the subject-matter of the gift, he did noi do so by putting the new certificate in the jointly-used safe deposit box. And in order to constitute a legally sufficient delivery, it was requisite that the act accomplish (at least, so far as is possible in the nature of the thing given), a complete divesting of the father of dominion and control over the subject-matter of the gift. Cf. Swayze v. Huntington, 82 N. J. Eq. 127; affirmed, 83 N. J. Eq. 335; Bailey v. Orange Hospital, 102 Atl. Rep. 7.

Neither is there any proof that at the time of the placing of the certificate in the safe deposit box it was done with- the then existing intent on the paid of the father that there should* thereby be accomplished a completed, then present, gift to his daughter. The evidence is not clear as to the time when the certificate' was deposited in the box. If we assume (and the evidence is compatible with that assumption) that it was fully signed by the company’s officers and placed in the box prior to July 10th, then the evidence as to the July dividend (as to which more hereafter) disproved the existence of such an intent at the time of the deposit. If it was placed there after July 10th, we have no evidence whatever of the particular intent with which it was placed there. He might just as well, as far as the evidence goes, have placed it there for his own safekeeping as with any intent of thereby delivering it to his daughter; in fact, the former is more probable, for, if he had the latter intent, the likelihood would be that he would tell his daughter, whereas, admittedly, she knew nothing of its presence there, or even that it had been signed by the company’s officers, until after her father’s death.

Turning, then, to the other contention: That the delivery of the new certificate to the daughter was not requisite to the validity of the alleged gift; that the gift had been validly completed and effectuated by the issuance of the new certificate by the corporation. Here, again, we are met by a failure of proof of the requisite intent. Assuming, for.the sake of the argument, that the exchange of the old certificates for the new one made out to the' daughter would be legally sufficient as a means for effectuating the gift, if it were so intended, it does not by any means appear that it was so intended. There is no evidence whatever that the father intended to make a gift, or that if he did intend to make a gift lie intended to make it there and then. The evidence does show, as I have said, that, he intended to make at some time a transfer of ownership, but it does not show that that transfer was not to' be conditioned upon or in exchange for the payment or performance of some consideration by the daughter. Neither does it show that he intended that the transfer of ownership, whether by gift or for consideration, was to take effect immediately at that; time, rather than at some future time, such as Christmas or a birthday, or even his own death (if a gift was intended) ; or at a time agreed upon (if a transfer for consideration was intended). The evidence is perfectly compatible with any of these possibilities.

Indeed, the evidence contradicts the theory that the father intended that any transfer of ownership-, whether by gift or otherwise, should take place at that time. It tends to prove that he did not intend that by the exchange of certificates a completed change of ownership should be effectuated. The proofs as to the July dividend show of course that both father and daughter at that time, three or four months after the issuance of the new certificate, still regarded the father as being, and the daughter as not being, the owner of the stock, and that they both acted in accordance with that regard.

Groff’s testimony does not militate against this conclusion, for, in the first place, the July dividend occurrence was apparently subsequent to the decedent’s declaration, and, in the second place, that declaration to Groff was not that he had “given” the aliares to. his daughter, not that he had effectually completed an irrevocable gift to her, but that he had “transferred” them to her, a statement which he might well have made, in1 view of what he had done, without his having had an intent that the doing of what he had done should immediately and effectually complete a transfer of ownership to his daughter. Furthermore, even if the declaration had been that he had “given” the shares to-his daughter, and the evidence as to the July dividend were lacking, the declaration would probably be insufficient to establish a. gift. Smith v. Burnet, 35 N. J. Eq. 314 (at p. 323).

It is unnecessary to take up- the question of whether o-r not the procuring by the father of the new certificate in the daughter's name would have constituted, without more, a legally sufficient delivery if tire requisite intent had been present, for it is clear, from what has already been said, that no- valid gift was made under the proofs in the case. Complainant is therefore the owner of the1 stock and entitled to- the dividends subsequent to testator’s death which have been withheld by the water co-mpanjr pending this determination.

A decree will be advised in accordance with the views expressed, hut without costs.


author: .Fielder. V. C.

text:
    Alfred S. Brown et al. v. Emanuel Simandl.
    [Decided October 25th, 1920.]
    A suit to restrain a defendant from constructing a building on land claimed by the complainant, in which the defendant denied the complainant’s ownership thereof, and alleged ownership in himself, and in which the complainant did not allege that the defendant was unable to respond in damages, held not within the jurisdiction of equity, the question involved being a strictly legal question of title to be settled through an appropriate action at law, and the damage, if any, being such that it could be readily assessed by a jury.
    On order to show cause why an injunction should not issue.

      Mr. Edward S. Atwater, Jr., for the complainants.

      Mr. JIarold Simandl, for the defendant.
   .Fielder. V. C.

The bill in this cause is filed for an injunction to restrain defendant from occupying with a building he is about to construct, a strip of land which complainants claim to own. The bill alleges that this strip is part of a tract conveyed to Franklin N. Brown, in 1868, and which he took into possession, occupied and died seized and by his will devised to complainants; that prior 'to the time of the conveyance to Brown a boundary, fence had been erected along the south line of the lands conveyed to him, which fence was maintained by him and his devisees from 1868 to September 1st last, when the defendant entered on complainants’ lands, tore down a portion of the fence, dug a, trench on a portion of complainants’ lands tying north of the fence and proceeded to fill the trench with cement as a foundation for the building defendant proposes to erect.thereon. The bill further alleges that if defendant is not restrained from proceeding with his -building, complainants will suffer irreparable damage. On the bill and accompairying affidavits an order was made directing defendant to. show cause why a temporary restraining order should not be issued against him, and on the return day defendant appeared and filed an affidavit setting up title to- the disputed strip in himself by deed- dated June 1st, 1920, from a grantor other than complainants, and alleging that complainants’ fence encroached on his lands and claiming that the trench for his foundation has been dug wholly on land owned by him, the defendant. He now moves to discharge the order to show cause on the ground that complainants have a full, complete and adequate remedy at law and that this court, therefore, has no- jurisdiction.

It is apparent that-the matter in dispute is a question of title asserted by complainants and denied by defendant and that what complainants seek is to restrain a trespass on their lands. They do not pray that this court will settle the question of title, and their sole claim to equitable jurisdiction is based on their bare assertion that they will suffer irreparable damage if defendant is not enjoined. They do not allege that defendant is unable to respond in damages.

I am of the opinion that the right set up- by complainants is a-strictly legal question of title which can, and must, be settled through an appropriate action at law. Ballantine v. Harrison, 37 N. J. Eq. 560; Hart v. Leonard, 42 N. J. Eq. 416; Outcalt v. George W. Helme Co., 42 N. J. Eq. 665, 676; Worthington v. Moon, 53 N. J. Eq. 46; Delaware, Lackawanna and Western Railroad v. Breckenridge, 55 N. J. Eq. 141, 593; Todd v. Staats, 60 N. J. Eq. 507; Colloty v. Stein, 80 N. J. Eq. 405; Myers v. Kelly, 83 N. J. Eq. 474.

The damage, if any, which complainants may sustain, is not irreparable but can be readily assessed by a jury. McGann v. La Brecque, 90 N. J. Eq. 526. The defendant, being apprised of the situation, will proceed with his building at his peril.

The rule to show cause will be discharged.


author: Fielder, V. C.

text:
    Frank Bucci et al. v. Stefon Popovich et al.
    [Decided July 30th, 1921.]
    1. At common law before issue born, a husband had in his wife’s lands an estate of freehold during their joint lives, and after issue born alive this estate of freehold continued for the husband’s life, and was called an “estate by the curtesy initiate” during his wife’s life, and on her death it became consummate.
    2, The Married Woman’s act (8 Comp. Stat. p. 8885) was intended to free a married woman from the hardships of the common law, and to give her the sole enjoyment of her separate estate, and should be liberally construed in her favor.
    3'. This act destroj'ed the estate of tenancy by the curtesy initiate, but if she has not aliened the estate with the consent of her husband, does not defeat curtesy at her death.
    4. Under this act the interest of a husband in his wife’s lands after birth of issue is an “inchoate right of curtesy,” the right to take possession of her lands for his life in case he survives his wife.
    5. The inchoate right of curtesy of a husband in his wife’s separate real estate is personal to him, and not subject to the claims of his creditors, and a conveyance of the wife’s separate real estate, in which the husband joins, is free from the claims of the husband's creditors.
    6. Under the Married Woman’s act and the nineteenth section of the Conveyance act (2 Oomp. Stat. p. 1539) the inchoate right of curtesy of a husband in his wife’s separate real estate does not pass to his creditors under the Bankruptcy act, and where a bankrupt husband joined his wife in a deed of her property, the grantee in said deed acquired a title free from claims of such' creditors as against a remote purchaser’s objection in a suit for specific performance.
    On bill, &c. On motion to strike out bill.

      Messrs. Burnett, Sorg, Murray .& Duncan, for the complainants.

      Mr. Gilbert M. Gormsh, for the defendants.
   Fielder, V. C.

The bill of complaint alleges that on April 2d, 1921, complainants entered into _ a written contract with defendants, wherein complainants agreed to sell, and defendants agreed to buy, certain premises in the city of Newark; that prior to the date fixed for closing title, defendants informed complainants that defendants would not accept a conveyance from complainants because one of complainants’ predecessors in title, to wit, Bertha Miller, wife of Morris Miller, acquired title to the premises in question by deed dated May 20th, 1902, and that on October 25th, 1902, said Morris Miller was adjudged a bankrupt and a trastee of his estate was appointed, which trustee, by virtue' of such adjudication, acquired an estate or interest in said premises, and that, notwithstanding such adjudication in bankruptcy, said Bertha Miller and Monis Miller, her husband, by their deed dated February 1st, 1906, conveyed said premises, and that said Bertha Miller and Morris Miller are still alive and have six children, one or more of whom were born prior to the filing of the petition in bankruptcy against Miller, and that Morris Miller was discharged in bankruptcy, January 5th, 1903, and that the conveyance by Bertha. Miller and Morris Miller did not divest the trustee in bankruptcy of his estate or interest in said premises. The bill further alleges that defendants have waived tender of a deed and have stated that -they decline to accept a conveyance from complainants because of the outstanding interest of said trustee in bankruptcy. Complainants offer1 themselves ready and willing to perform their contract and pray that specific performance may be decreed on the part of defendants. Defendants now move to strike out the bill of complaint on the ground that it discloses no cause of action, in that complainants seek the specific performance of a contract to purchase land, che title to which, according to the bill, is defective, encumbered and subjected to an outstanding interest.

By act of congress relating to bankruptcy (section 70) the trustee in bankruptcy acquires, among other things, all property of the bankrupt “which prior to the filing of the petition he could by any means have transferred, or which might have been levied upon and sold under judicial process against him.”

The question presented is, where a married woman is the owner of real estate in her own name, whether after issue born alive, her husband has such a right, interest or estate in his wife’s lands as will pass to his trustee in bankruptcy in her lifetime, or whether, after her husband has been adjudged a bankrupt, the wife can by deed, to. which the husband expresses his assent by joining therein, convey a title free from the lien of her husband’s creditors in bankruptcy.

By the common law, before issue bom, the husband had in his wife’s lands an estate of freehold during their joint lives, and after issue born alive this estate of freehold continued for his own life. It. was termed an estate by the curtesy initiate during his-wife’s life and it became consummate on her death. Doremus v. Paterson, 69 N. J. Eq. 118; affirmed, 69 N. J. Eq. 775.

By the Married Woman’s act of March 25th, 1852, and subsequent acts, found in Comp. Stat. p. 3255, the real estate which a wife owns at the time of her marriage, or which she shall thereafter acquire, and the rents, issues and profits thereof, are her sole and separate property, as though she were a single woman and axe not subject to the disposal of her husband nor liable for his debts. By that act she is given the right to bind herself by contract in the same manner and to the same extent as though she were unmarried, except that she cannot execute any conveyance of her real estate, or any instrument encumbering the same, without her husband joining therein, and any judgment obtained 'against her is as valid and effectual as though she were unmarried, except that such judgment cannot affect the right of her husband in her lands, as tenant by the curtesy after her death. She is also given the right to dispose of her real property by will with the same effect as though she were unmarried, except that she cannot dispose of the interest therein to which her husband by law would be entitled at her death.

The intention of tins legislation was to free the married woman from the hardships under the common law which subjected her real estate so largely to her husband’s control and to give her the sole use and enjoyment of her separate estate. It should be liberally construed in her favor so that all the benefits intended thereby shall inure to her. If the right or interest which a husband has in his wife’s separate property, either before or after the birth of issue, is a right or interest which, within the meaning of the Bankruptcy act, he could “by any means have transferred, or which might have been levied upon and sold under judicial process against him,” then he may convey or encumber it and his judgment creditors may levy on and sell it under execm tion and thus for the husband’s right or estate may be substituted the right or estate of an utter stranger with whom tire wife must treat whenever she desires to! convey her land or any interest therein. She still will be unable to malee a valid deed unless her husband joins with her, arid besides his consent she will be required to obtain the release of the person to whom her husband’s interest or estate has been transferred. In such a situation, she would neither be seized nor possessed of her property for her sole and separate use as though she were a single woman, but rather her property, or an important interest therein, would be subject to the disposal of her husband, and, in effect, made liable for his debts, contrary to- the statute.

I find no ease in our reports which in my opinion supports the defendants’ contention in this suit. None of the cases on which the defendants rely intimate that the husband’s right or estate by the curtesy can be conveyed by him apart from his wife o-r that it is subject to seizure by bis creditors. I have examined the following cases which touch the question at issue here, none of which, however, seem to me to be decisive:

In Trade Insurance Co. v. Barracliff, 15 N. J. Law 543, the court of en-ors and appeals was dealing with the question whether the husband had an insurable interest under a fire insurance policy in his wife’s real property, and held that he had, because he was in possession and enjoyment thereof as the head of the household and because he had, an inchoate right oE curtesy which by the birth of offspring, on his wife’s death, he surviving, would bloom into a freehold.

In Doremus v. Paterson, supra, the question was whether the husband was a necessary party to a bill filed with respect to an injury to the wife’s lands. In his opinion, reported in 69 N. J. Eq., the vice-chancellor said (at p. 193) : “What the Married Woman’s act did was to deprive the husband of the freehold during his wife’s life. He no longer held a freehold estate in possession. It did not affect the estate which he took after her death. Upon that event he became entitled to a freehold interest in possession for his own life,” and then the vice-chancellor proceeded to observe: “T have never been able to> understand why the husband has not under these circumstances (which included birth of issue) an estate in remainder in his wife’s lands which is as completely vested in him as any vested estate in remainder for life is ever vested in any remainderman,” and, after considering several decisions in our courts, he decided the real point at issue in the case % saying (at p. 198) : “In view of this course of -decisions, I think it may be affirmed that it has never been expressly decided that after issue born, the husband is not a necessary party in equity to any suit which touches or affects his right to curtesy after his mfe’s death.” It should be observed that in deciding this case on appeal, the court of errors and.appeals did not refer to the vice-chancellor’s conclusions on the subject of curtesy, but affirmed his decision for other reasons.

Leach v. Leach, 69 N. J. Eq. 620, was an application by a wife for the payment to her of surplus money arising on foreclosure of a mortgage covering her lands. The husband resisted the application and set up his curtesy right in the land. The decisión in that case was that because the wife had, in any event, an estate for life in the lands, the husband’s consent to the payment to her of a gross sum in lieu of her life estate was not .necessary.

In re Staheli, 78 N. J. Eq. 74, and In re Riva, 83 N. J. Eq. 200, were proceedings brought by married women living apart from their husbands, for leave to dispose of their real estate which did not come to them from their respective husbands. In the former case the husband’s possible right of curtesy was held not to be a bar to granting the application, while in the latter case his curtesy right, which the vice-chancellor designated as an “estate,” was held to be sufficiently substantial to make it undesirable to order a sale because of the largely-reduced price that would be offered for the wife’s estate. Both of these cases were disapproved by the chancellor in Riley v. Riley, 92 N. J. Eq. 465, so far only as they infer that there is a time in the life of a woman when she is presumed in law to be unable to bear children.

Hackensack Trust Co. v. Tracey, 86 N. J. Eq. 301, is a case upon which the defendants most strongly rely in support of their motion. It involved the disposition cf surplus money arising on a sale of the wife’s land under foreclosure. In his decision the chancellor dealt with the subject of curtesy both at common law and since the passage of the Married Woman’s act, and, following Vice-Chancellor Stevens’ observation in Doremus v. Paterson, supra, he laid down the proposition that immediately upon marriage, the husband acquires a contingent estate in remainder in his wife’s lands, and that upon the birth of issue, he has a vested estate in remainder. It is apparent that the chancellor did not have a situation like the present case in mind. I take it that he was dealing solely with the question involved in the case before him and with similar questions arising between husband and wife, as to their respective rights and interests in the wife’s real estate, and that he did not intend to say that upon the birth of issue, the husband becomes seized of such a vested estate in remainder in his wife’s lands as a judgment creditor could seize and sell under execution, but that what he decided was that the husband’s right of curtesy was a vested right of which he could not be divested by any act of tire wife or by the involuntary sale of her land under execution. I feel confirmed in my reading of his opinion by the fact that he cited Porch v. Fries, 18 N. J. Eq. 204 (hereinafter referred to), with approval, and because he said (at p. 307) : “The decided eases hold that the Married Woman’s act of 1852 operates to deprive the husband of an estate by the curtesy initiate — which was a freehold estate in possession— during their joint lives, but does not defeat the right of curtesy that he has in the event of the birth of issue, he surviving her. Therefore, do not the declarations in tire opinions, that under the act in question, a husband * * * can acquire no right or interest in his wife’s separate real property during their joint lives mean no possessory right or interest, and that that is the interest or estate of which he is deprived, and thcd only; and, further, that the right and interest which he has to succeed to a freehold estate in possession for his own life after her death (issue being born alive) inheres in him from the time of the marriage until his death during her lifetime ?”

Reese v. Stires, 87 N. J. Eq. 32, was a suit for partition involving the constitutionality of the act (P. L. 1915 p. 61) abolishing dower and curtesy. A married woman was one of the tenants in common and the chancellor there held that had issue been born of the marriage, the husband had a “vested estate in remainder known to our law as an inchoate right of curtesy.” Here, again, the chancellor dealt with rights as between husband and wife and he was not called upon to consider and did not determine whether the husband’s “inchoate right of curtesy” was such an “estate in remainder” as his creditors could seize.

I think that the reported cases which more closely approach the instant case are Porch v. Fries, supra; Middleton v. Steward. 47 N. J. Eq. 293; Bristol v. Skerry, 64 N. J. Eq. 624, and Winterbaum v. Duesel, 93 N. J. Law 82, from which I gather that the Married Woman’s act so changed the status of the husband with regard to his wife’s lands that he has, during her life, no interest or estate in them, but that she holds them to her separate use as if she were a feme sole, free from his control, and that she can sell them with his assent, and if she so sells and conveys them, she conye3s them as she holds them, free from any interest or estate of her husband; that the Married Woman’s act destroyed the estate of tenancy by the curtesy initiate, but it does not defeat the husband’s curtesy at the death of his wife, provided she has not aliened her estate 'before.

The interest which the husband has in his wife’s lands, after the birth of issue, may be described as an inchoate right of curtesy, which is the right to take possession of her lands for his life, in ease he survives her. She cannot divest him of this right by her own conveyance, nor can he be divested by an involuntary sale of her lands under judicial proceedings against her, but be can lose his right during her life b3r his prior death, or b3r joining ini a deed of conveyance with her, or by a decree of absolute divorce, or (in a proper case) under our statutes authorizing the sale of real property of a married woman when the property comes to her otherwise than through her husband and she is living separate from him. I regard his inchoate right of curtesy as a right created by or growing out of the marriage state, personal to him and not subject to the claims of his creditors. He ma3r at any time during coverture assent to a sale by his wife of her lands, and. if he signifies such assent by joining in a deed with her, it is my opinion that she conveys, as a. feme sole would, free from any interest or estate of her husband and free from any claim of her husband’s creditors.

It may be argued that under the Conveyance act (Comp. Stat. p. 1539 § 19) the husband has such a contingent interest or other future estate or interest in expectancy in his wife’s real estate as he can convey or assign,. and that his grantee or assignee, upon the wife’s death during the husband’s lifetime (issue, having been born alive), will be entitled to succeed to the husband’s consummate right of curtesy. Without considering this argu-, ment, it is sufficient for the purposes of this case to say that if the husband has such an estate or interest as is defined in this act. the act expressly provides that such interest or estate is no.t liable to be levied upon and sold by virtue of an execution. It could therefore not pass under the Bankruptcy act.

I conclude that the objection which the bill of complaint states the defendants make to the title complainants are ready to convey is not well taken, and that the bill of complaint, therefore, sets out a good cause of action. The motion to strike out will be denied.

I regard this case as important because it. will affect the title to land, and I have, therefore, conferred with the chancellor about it and I am authorized by him to say that he concurs in the result I have reached.


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    Grand Lodge of the Independent Order of Odd Fellows of the State of New Jersey v. Wieland Lodge, No. 113, Independent Order of Odd Fellows, et al.
    [Decided July 23d, 1921.]
    1. The Grand Lodge of Independent drder of Odd Fellows which permitted certain lodges to conduct their work in other than the English lariguage, under their constitution and regulations have the power to require such subordinate lodges to conduct their work in the English langiiagelwhen in its judgment it was deemed, advisable for the good of the order so to do.
    2. Members of a subordinate lodge are not entitled to divide the funds of such subordinate lodge by reason of a breach of contract by the Grand Lodge; such funds being held in trust for charitable purposes.
    3. Where the Grand Lodge brought’ action against a subordinate lodge, and the members thereof, to recover trust funds which had been diverted by ■haembers of the subordinate lodge, at. a time when the acts and proceedings of the members of the subordinate lodge were not known to the complainant, and were not disclosed until final hearing, when it appeared that the subordinate lodge had gone out of existence, the complainant was entitled to strike out the name of such subordinate lodge as a defendant to the suit. .. . ■
    ' 4. Where members of a subordinate 'lodge intended to abandon and destroy it as an organization by withdrawing from it, dissipating its funds, and attempting to form a new organization, and did all in their power to dissolve it, the individual members are estopped from setting-up that the lodge has not, to all intents - and purposes, ceased to exist in an action against them to recover trust funds diverted from their proper purpose.

      5. Moneys of a subordinate lodge of Odd Fellows in New Jersey do not belong to the members of such lodge, and where such members dissolved the lodge, a court of equity will not decree that such moneys be distributed among the members, but will be guided by the code and laws of the order in determining to whom the fund belongs, and when such laws require it, the funds will be paid to the Grand Lodge, impressed with a trust to be administered by the Grand Lodge.
    On. bill, &C.

      Mr. Robert II. McCarter, Mr. Walter F. Ilayhurst and Mr. Charles A. Woodruff, for the complainant.

      Mr. William B. Gourley and Mr. Addison Fly, for the defendants Matthew Elsasser and others.
   Fielder, V. C.

Complainant is a fraternal beneficial order incorporated under the laws of this state. It alleges that Wieland Lodge, No. 1*13, an unincorporated subordinate lodge of the order, while existing and acting under a charter issued by complainant, accumulated certain property and funds amounting to upward of $2,200, impressed with a trust for the purpose of benevolence and charity toward the members of the order, such as visiting the sick, relieving the distressed, burying the dead and educating orphans, under the constitution, laws and rules of the order; that upon accepting its charter, Wieland Lodge agreed that in default of its operating in conformity with said constitution, laws and rules, its property and funds should become the property of complainant for the purpose of benevolence and charity under the rules of the order; that on or about November 12th, 1919, the members of Wieland Lodge determined that the property and funds of the lodge should be divided pro raia among themselves, and that pursuant to such determination a division was made among the members, who thereupon delivered the same to one or more of the individual defendants to this suit, who still have possession of the same. The defendants named are Wieland Lodge and certain members of the lodge who acted as a committee for the distribution and subsequent holding of the funds and other property of the lodge; also a bank and a building and loan association, which last two defendants do not appear, from the proofs, to have had any connection with the matter in controversy. Complainant prays an injunction restraining the defendants from disposing of the funds and property of Wieland Lodge and an order that the same be turned over to' complainant.

The Independent Order of Odd Fellows is composed of three series of lodges — first, the Sovereign Grand Lodge, the highest and supreme lodge of the world, with headquarters in the United States; second, the grand lodges (of which complainant is one) instituted under charters granted by the Sovereign Grand Lodge, and third, subordinate lodges (of which Wieland Lodge was one) chartered by a Grand Lodge.

The Grand Lodge of New Jersey was instituted by charter dated August 3d, 1833, and was authorized by the Sovereign Grand Lodge to grant charters to open lodges according to the laws and usages of the order of Odd Fellowship: Wieland Lodge was chartered by the Grand Lodge of New Jersey November 18th, 1880. Its charter provided that it should act according to the laws of the order and in conjunction with and obedience to the Grand Lodge, adhering to and supporting the constitution and laws of the Grand Lodge, and in default thereof its charter might be suspended or taken away, or it should be dissolved or forfeit its charter and its property, money, books and papers should become the property of the Grand Lodge.

When the charter to Wieland Lodge was issued there was in effect a constitution of the Grand Lodge of New Jersey adopted in 1873. This remained in force until a revision was adopted in 1918. The essential features of both constitutions applicable to this case are as follows:

•‘The Grand Lodge of New Jersey is the supreme tribunal of the*order in this state. It possesses, by virtue of its charter from the Sovereign Grand Lodge, full power to grant charters to subordinate lodges or to suspend or take away the same for proper cause; to pass laws for the regulation and work of such subordinate lodges. Subordinate lodges possess such powers only as are conferred by their charters and the usages and laws of.the order. In all cases where a lodge shall have been suspended or expelled, or its charter shall have been vacated or forfeited, the charter, funds, books, papers and effects of all kinds shall revert to the’Gram;! Lodge. All effects or funds received by the Grand Lodge from any suspended or expelled subordinate lodge shall be held in trust, to be restored to such lodge upon expiration of suspension, reinstatement after expulsion or resuscitation at any time within three years after suspension or expulsion, after which time such effects or funds shall become the property of the Grand Lodge and shall be placed in the general fund. Such funds and property are held only in trust for the charitable purposes of the order and must be applied solely to these purposes. The donation or division of such funds or other property among the members in any manner not especially provided for by the laws of the order, is a violation of the trust and of the purposes of the order, the penalty for which will be expulsion.”

Wieland Lodge was located- in Carlstadt, a town which, in 1880, was inhabited almost exclusively by Germans and the German language was in general use by the people of that locality. One of the inducements- held out by the officials of the Grand Lodge who organized Wieland Lodge, was that those- who joined the lodge might use the German language in the work of the order, and that they might have a ritual printed in German for the conduct of their proceedings. Copies of a German ritual were supplied by the Grand Lodge to Wieland Lodge and the constitution of'the latter was printed in German, and the proceedings and lodge work of Wieland Lodge were conducted in ihe German language from the time- of its organization, to the knowledge of the officials of the Grand Lodge and without objection by them. Wieland Lodge worked in harmony and sympathy with the Grand Lodge to, on or about November 20th, 1918, when, at a duty-constituted session of the Grand Lodge, at which Wieland Lodge was represented by its delegate, the Grand Lodge, by a vote of one hundred and sixty-five ayes to thirty-two nays, adopted an amendment to its code- of laws, providing that on or before June 30th, 1919, all subordinate lodges working in any other than the English language should surrender their rituals in exchange for rituals printed in English, and that after December 31st, 1919, all work and business of such subordinate lodges should be conducted in the English language. A copy of the minutes of the Grand Lodge -containing this amendment was sent to Wieland Lodge, and at a meeting of the lodge its delegate to the- Grand Lodge reported the action taken by the Grand Lodge. This amendment to- the code of laws was displeasing to the-members of Wieland Lodge, and at its meeting held October 15th, 1919, it was resolved not to surrender their German rituals and to withdraw the lodge funds from the place where they were kept on deposit and to turn the same over to a committee which was formed to organize a new benevolent association. At a subsequent meeting held November 12th; 1919, it was again decided, by a vote of forty-three in favor to three against, to retain the German language and rituals and to make a pro rata distribution of the funds nf the lodge among the'members thereof. Cheeks for the pro rata distribution had already been drawn, or were drawn that night, each payable to a member and were delivered to the members. Three of the members cashed their checks for a total of about fifty-one dollars, and the other members endorsed theirs, delivered them to the chairman of their committee who cashed them and thereafter placed the total amount so received by him (some $2,250) in a private safe, where it is held under a restraining order of this court. The intention of the seceding members of Wieland Lodge was to form or join a new German benevolent association known as the United Brothers Lodge, to which new lodge the committee of Wieland Lodge members holding the' funds formerly of Wieland Lodge was to pay such funds. A meeting of the United Brothers Lodge was held December 23d, 19T9, and officers were elected, but no constitution was adopted. The United Brothers Lodge had no charter or certificate of incorporation and it never received any of the Wieland Lodge money.

The individual defendants toi this suit contend that the organization of Wieland Lodge as a German-speaking lodge, with the consent of the Grand Lodge and the continued use of rituals printed in German, supplied by the Grand Lodge, and the uniform conduct of its proceedings and work in German for nearly forty years, with the knowledge and permission of the Grand Lodge, constituted a contract between the members of Wieland Lodge and the Grand Lodge, which the Grand Lodge could not rescind or repudiate by its action of November 20th, 1918, legislating against the future use of the German language, and that because of such action by the Grand Lodge the members of Wieland Lodge had the right to treat the contract as terminated.

When Wieland Lodge was organized one of the by-laws adopted by it (printed in German and translated on the hearing) reads as follows:

“All business and procedure of this lodge shall be made in the German language, and no proposition for the change of the business language shall be adopted as long as there are still five members of this lodge who lcnow the German language and who wish to retain it.”

This by-law amounted to an agreement among themselves that they proposed to adhere to the use of the German language, but it was subject to the right of the Grand Lodge to enact general legislation governing all subordinate lodges and to regulate the written work of the order. The Grand Lodge might permit lodges to conduct their work in other than the English language, but when in the judgment of the Grand Lodge it was deemed advisable for the good of the order that the form of the ritual or of the workings of the order should change, or that the English language should 'be used by all subordinate lodges, it had the reserved power under the constitution and under the charter granted to Wieland Lodge to so> determine at a duly-constituted session of the Grand Lodge. When its action was taken November 20th, 1918, it had nineteen German, six Italian and one Swedish subordinate lodges. The charters of these subordinate lodges defined the extent of the powers and rights of each lodge and expressly provided that such lodges would act according to the laws of the order and in conjunction with, and obedient to, the Grand Lodge, adhering to and supporting the constitution and laws of the Grand Lodge. Inducing men to join a lodge, in 1880, in which German might be the language used, and permitting the conduct of the work in that language over a period of years, no more constitutes a contract that the use of such language would forever be permitted, than the printing of a ritual, delivering- it to a lodge and permitting its use for many years, would constitute a contract that no other form of ritual would ever be used. The Grand Lodge had the right to legislate that. English should he the only language used in its subordinate lodges in this state.

But assuming- that such contract did exist, its breach did not justify the action taken by the members of Wieland Lodge. The theory of the members was that they had the right to continue the irse of the German language in .the work of their lodge and to continue to exist as a subordinate lodge of the order, notwithstanding the adoption of the law which forbade the use of the Geiman language. Their contention was that the action of the Grand Lodge in passing such a law was void as to them and they need not observe it. Therefore, the alleged breach of contract on the part of the Grand Lodge did not justify their action in distributing the trust funds held by their lodge contrary to the rules of the order. Schubert Lodge v. Schubert Kranken Verein, 56 N. J. Eq. 78, 82.

The claim of the individual defendants that the Wieland Lodge charter was taken away because its members refused to obey the language law of the Grand Lodge is not founded on fact. When the grand master of the Grand Lodge learned of the action of the members of Wieland, Lodge at their meetings of October 15th, 1919, and November 12th, 1919, he appeared at a meeting of the lodge held on or about November 26th, 1919, and demanded that their action in distributing the funds of the lodge be rescinded, and upon the refusal of the members to accede to his demand, the grand master, by virtue of his authority under the constitution and laws of the Grand Lodge, announced the suspension of the lodge and informed the members that they could be heard on his action before the grand committee, and it was then and there agreed that the grand committee would meet December 1,2th, 1919, at the Wieland Lodge room. Formal notice, pursuant to the laws of the order, was subsequently given the officers of Wieland Lodge that on the date fixed the lodge might appear before the grand committee and be heard on the action,, of the grand master. It appeared by its presiding officer and a committee of members who admitted the distribution of funds and stated that the members of the lodge refused to reverse their action, and the committee filed with the grand committee on behalf of the lodge, a written protest against the suspension. The grand committee thereupon sustained the action of the grand master and, demanded the fund? and property of Wieland Lodge, which demand was refused. The suspension of Wieland Lodge, and tlie demand for its funds and property, were not made because it refused to adopt the English language in its work, but because it had paid out its funds contrary to the law of the order and had distributed such funds among its members. The date for the language law to take effect was January 1st, 1920, and that time had not yet arrived.

The individual defendants next contend that Wieland Lodge was not lawfully suspended because no notice was given to its members (who claimed property rights in its funds) of the intention of the grand master to appear at its meeting of November 26th, 1919, and that no notice was given the members of the meeting of the grand committee, and their argument seems to be that Wieland Lodge is still in existence and that, if its funds were unlawfully paid out, they shpuld be returned to' the lodge and not paid to complainant, and in support of this argument it is pointed out that complainant has made Wieland Lodge a defendant to this suit. When the bill was filed all the acts and proceedings of the members of the lodge were not known to the complainant and were not disclosed until final hearing. Under the circumstances, complainant may, if it desires, strike out Wieland Lodge as a defendant to this suit. I have stated the proceedings of the grand master and the grand committee and I do not think it necessary to examine the laws of the order to ascertain whether their proceedings conformed to such laws. Wieland Lodge has not answered in this suit, but the answer of the individual defendants admits that Wieland Lodge no longer exists and asserts that the lodge could, by its voluntary act, at any time relinquish its association and affiliation with the Grand Lodge, and that it had decided so to do. It seems quite clear from the evidence that lire members of Wieland Lodge intended to abandon and destroy it as an organization by withdrawing from it, dissipating its funds and attempting to form a new organization. They did all in their power to dissolve it, and the individual members are now estopped from setting up that the lodge has not to all intents and purposes ceased to' exist. Knights of Pythias v. Germania Lodge, 56 N. J. Eq. 68.

The final defence urged by said defendants is that the funds in question were moneys of the members of Wieland Lodge, accumulated by them for the benefit of themselves under the rules of the order, and that a court of equity will not divert such funds to a purpose foreign to its accumulation. The answer of said defendants admits that the funds were held by Wieland Lodge in trust for the purposes of benevolence and charity. These purposes are shown to be sick and funeral benefits, relieving the distressed, ' educating orphans and the maintenance by the Grand Lodge of a home for aged and indigent members, in which home fifty-two aged members of the order are now cared for, one of them being a member of Wieland Lodge, and funds of defunct lodges revert to an Aged Odd Fellows Fund, administered by the Grand Lodge. If the funds in question are ordered paid to the Grand Lodge, they must be held subject to being restored to the members of Wieland Lodge, if during a period of three years the lodge is reinstated, after which period they are held in trust by the Grand Lodge for the beneyolent and charitable purposes of the order. The attempt of the members of Wieland Lodge was to divert this trust fund from benevolent and charitable purposes' and pay it to themselves. Most of them intended, subsequently, to pay the money they received over to another organization, the objects of which are not disclosed, while some of them had no such intention and kept their pro raía share of the fund. The -fund was, undoubtedly, accumulated over a period of years. Some of it was probably paid in by men who through death, resignation or explusion had ceased to be members of the lodge. If, on abandonment of the lodge charter, the trust fund should be paid in any other way than to the Grand Lodge, to whom does it belong ? To the present members of the lodge, some of whom are perhaps new members and have contributed but a small portion of the fund, or to all persons (or their representatives) who at any time paid into it ? It would be difficult to say in whom, if not in tire Grand Lodge, the trust fund vested on the dissolution of the lodge. I think we can look only to the constitution, code and laws of the order for our guide in determining to whom the fund belongs, and I find that by the laws of the Grand Lodge in force when the money in question was paid into the treasury' of Wieland Lodge, the fund under the circumstances of this case was impressed with a trust to be administered by complainant and should be paid to it.

I think my view of this case is supported by State Council v. Sharp, 38 N. J. Eq. 24; Knights of Pythias v. Germania Lodge, supra; Schubert Lodge v. Schubert Kranken Verein, supra, and State Grand Lodge v. Morrison, 112 Atl. Rep. 862.

The charter, rituals and paraphernalia used by Wieland Lodge in connection with the work of the order should also be turned over to complainant.