author: Per Curiam.

text:
    The Orange Society of the New Jerusalem, complainant-respondent, v. Mark M. Konski, defendant-appellant.
    [Submitted July 9th, 1923.
    Decided November 19th, 1923.]
    On appeal from a decree advised by Vice-Chancellor Baclres, whose opinion is reported in 94 AT. J. Eq. 632.

      Mr. Edward L. Davis, for the appellant.

      Mr. William J/. Osborne and Mr. Henry T. Stetson, for the respondent.
   Per Curiam.

This was a vendor’s suit for specific performance of a written contract for the purchase of real property, the pertinent features of which appear in the opinion of the vice-chancellor. Our consideration of the case leads us to the conclusion that the decree requiring appellant to complete his purchase in fulfillment of the contract should be affirmed, and for the reasons stated by the learned vice-chancellor.

As will appear by Iris opinion, the contract .contained provisions. calling on the vendee to erect a building of a specified character upon the premises to be conveyed, and counsel for appellant raise the point that a court of equity should not decree specific performance of a stipulation of that character. Such we understand to be the ordinary rule. Wharton v. Stoutenburgh, 35 N. J. Eq. 266. But we are' not called upon to pass on this feature of the case, because the decree appealed from goes no farther than to require the appellant to take and pay for his deed and attend to the details incidental to closing of title. It is true that the decree contains a provision allowing the appellant six months "after the performance of this decree” to proceed to erect a building m accordance with the contract, but there is no mandate to erect such building within that period or at any time. When such a mandate has been issued by the court of chancery and has been properly brought before us, it will be time enough to consider it.

The decree is affirmed, with costs.

For affirmance — Ti-ie Chiee-Justice, Trenchard, Parker, Kalisci-i, Black, Katzenbaci-i, Gardner, Ackerson, Van Buskirk—9.

For reversal—None.


source: Caselaw Access Project

license: Public Domain

text:
    Christina Rabassa, complainant-appellant, v. Charlotte M. Raab, defendant-respondent.
    [Decided September 28th, 1923.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, who delivered the following opinion orally:
    “The complainant gave to her mother, the defendant, a deed for a house adjoining the mother’s home, in Jersey City, which the mother has since made a part of her home by cutting away partition walls. The daughter had been then recently widowed, and was well to do from her deceased husband’s estate. That was in .1915. She again married, and in 1921 filed this bill. After all these years, she now claims that the deed was given upon her mother’s representation that it was a trust deed—that is, a deed showing on its face a trust to reconvey. She also claims that her mother cleclearecl the trust in writing, which, she says, is now lost. She further claims that she never acknowledged the deed and that the certificate of acknowledgment is false. She asks that the deed be set aside or that the trust be enforced. The mother says that she had advanced money to her daughter from time to time, and that the deed was given in settlement and satisfaction of the debt. It would be futile to attempt to reconcile the testimony. The fight is such a bitter one, as it always is in family quarrels, that I am afraid some of the witnesses did not stop short of perjury. But we have little trouble in reaching a correct conclusion where the testimony is in such conflict if we keep before us the rule that the burden is on the complainant to prove her case by a preponderance of the evidence, and in this the complainant has failed, as I shall point out.
    “The charge that the. deed was obtained' by. the mother upon the representation that it was a trust deed—that is, that the deed on its face was to the mother in trust for the daughter, and that the daughter so understood it, and in that belief made it, is not made out. It is quite apparent that the daughter knew it was an absolute conveyance. That is borne out by the daughter’s own statement, if believed, for she says the deed was made for the purpose of thwarting her counsel in New York—thwarting his threatened effort to recover Prom her for professional services. Now, if she was truthful in that statement, then shp knew, or must have known, that the conveyance was absolute, to hide the property in her mother’s name. It also appears, from her testimony, that when she discussed the deed with her since husband at White Sulphur Springs, if she ever did, they considered the advisability of conveying the property absolutely to the mother. In this connection let me say that I am not inclined to accept the daughter’s story that her motive for making the deed was to foil her New York lawyer. I think that is a matter that suggested itself to her as a plausible explanation for the making of the deed and charging her mother as trustee; for if she had hoped to avoid the importunities of this lawyer, why should she simply try to protect this bit of property that stood her in not more than $1,700, when in fact she had property worth at least $7,000 in New York, where the lawyer practiced, and of which he had knowledge, and which he could more readily lay his hands on.
    “As to the claim that the trust was declared in writing by the mother, and is now lost, this will be presently disposed of. As t.o the fact of its existence, I may say here that, if there ever was a document such as the complainant described, it dhl not comply with the statute of frauds.
    “Now let us take up the charge that the deed was never acknowledged and that the certificate of acknowledgment is false and the recording of the deed fraudulent. The conclusion I arrive at also disposes of the question of the existence of the so-called declaration of trust. The deed bears date June 16th. The complainant says that on that day— and so does her husband—she was in White Sulphur Springs; that they left here on the evening of the 15th. A communication from the hotel, which I directed counsel to procure, and which has been admitted in evidence as stating the fact, discloses that the complainant and her husband—he was not then her husband—arrived at White Sulphur Springs on the 16th day of June, 1915, some time after dinner. T take that to be so, and being so, it is not possible that she could have been in this neighborhood. It is a fourteen-hour trip by through train. The complainant says, and she is corroborated by her husband, that the deed came to her by mail June 17th, and that enclosed with the deed was the declaration of trust such as she has described; that after discussing the advisability'of signing it and expressing some anxiety about doing so, she signed the deed and returned it to her mother by mail. She also testifies, without reservation, that she did not sign the deed or acknowledge it before the comm issioner. On the other hand, the commissioner, who is a reputable real estate agent in Jersey City, and who is entirety disinterested in the outcome of the suit, says that the deed was acknowledged by her, after execution in his presence, on the afternoon ol: June 16th about four o’clock. I believe the commissioner as to the fact of the execution and the acknowledgment, but he is wrong as to the date. There was no impersonation. The complainant is not a stranger to the commissioner. He has known her and her family for twenty-five years. His office is right around the corner from their home. He says that the complainant came to him with her old deed and asked him to draw a new one to her mother; that he made pencil memorandum of her instructions on the back of the old deed, and so it appears; that an appointment was made for the 16th for the execution and that she told him she was going away—I do not recall whether he said that she told him she was going to White Sulphur Springs. At any rate, she told him she was leaving. The complainant also brought with her certificates of shares in the building loan which she also wanted transferred to her mother. The building loan held a mortgage on the property. The old deed and shares were handed by the commissioner to a lawyer, who drew the deed and assignment of the shares, which assignment also bears date June 16th. Both documents, including the dates, were typewritten. Now, this is what T think happened : the scrivener inserted the dates, June 16th, in the deed,-in the certificate and in the assignment of the shares at the time he drew them to conrplv with the date appointed for their execution, but the complainant called a day or two before the appointed time and the commissioner certified without changing the date, which is not an uncommon thing. I have not the slightest doubt that the complainant procured the drafting of the deed and that she appeared before the commissioner and executed and acknowledged it, and that she was fully aware of what she was doing, and this, of course, carries with it my disbelief in the story of the complainant and her husband that the deed was signed at White Sulphur Springs.

      “It lias been argued that there is legal fraud, as distinguished from actual fraud, in that it is urged the mother occupied a dominant position towards the daughter. Rather the contrary is the fact. The mother was a housewife; the daughter, a young woman, twenty-five, a widow, and worked from early childhood; had been engaged in business with her former husband; at the time of the conveyance was carrying on the business left to her by him; one that required skill and knowledge of business methods; she had traveled extensively; had come in contact with all kinds of trades people, and ivas absolutely independent—self-dependent; she did not live with her mother and was not of her household. There was no relation of trust and confidence such as to raise a presumption of fraud.
    “Then again we have this situation, which also strengthens the mother's position and weakens that of the dauhgter. Why, if this was simply a deed of trust, did the daughter permit the mother to incorporate the property into her home—make it a part of it, and occupy it for all these years, and why, during that same time, did she let the mother pay the monthly installments to the building loan until the mortgage is now nearly paid off, or is paid off? The mother paid the taxes and repairs. It seems to me if the property was simply held in trust there would have been some arrangement made by which these obligations were to be discharged, but nothing of that kind appears. The daughter delivered the deed and the possession of the property and permitted her mother to handle it as her own.
    “The testimony of the mother that she bought the property by advances made to her daughter is not any too satisfying. It would seem that these advances were made at times when the daughter was in funds, but we need not scrutinize it closely, for the complainant must rest upon the strength of her own case and not upon the weakness of that of her mother.
    “The complainant has failed to sustain her cause and the bill will be dismissed.”

      Mr. John P. Manning, for tire appellant.

      Messrs. Áulenreith & Gannon, for the respondent.
   Per Curiam.

The decree will be affirmed, for the reasons stated in the opinion delivered by Vice-Chancellor Baekes in the court of chancery.

For affirmance—-The Chief-Justice, Tren chard, Parker, Bergen, Minturn, Kalisch, "Black, Katzenbach, White, Heppenheimer, Gardner, Van Buskirk—12.

For reversal—None.


text:
    Carmino Miscia v. Guiseppa Miscia.
    [Decided November 19th, 1923.]
    On appeal' from the court of chancery.

      Mr. Thomas BnmeUo, for the appellant

      Mr. Charles F. 8. Thorne, for the respondent.
   Per Curiam.

The bill in this case was filed by a husband against his wife, praying a decree of divorce upon the ground of adultery committed by her. The hearing resulted in a decree in his favor, and the defendant has appealed upon two grounds, each of which, we think, is without merit. The first is that the evidence submitted on the hearing in the court of chancery was insufficient to justify a finding of adultery on the part of the wife.

A recital of the facts proved in the case which support 'the allegations of the petition would serve no good purpose. It is sufficient to say that, in our opinion, they are convincing of the truth of the charge laid against the defendant.

The only other ground of appeal is that the court of chan•cery, after adjudging the right of the husband to a divorce, awarded the custody of the young children of these parties -to the wife, and. having done that, fixed the sum of $8 per week as an allowance to be made for their support and to be paid by the petitioner to the defendant; which sum, it is now contended before us, is plainly insufficient for the purpose to which it is to be devoted. But, assuming the fact to be as the appellant claims, the insufficiency of the allowance affords no ground for reversing the decree, for the reason that, after fixing the amount, it was provided therein that a modification in this respect might be applied for at any time in the court of' chancery, and that such modification would 'be made upon good cause shown. If the allowance be, as the appellant claims, insufficient for the support of the children, her proper course is to apply to the court of chancery to have it increased.

The decree appealed from will be affirmed.

For affirmance — The Chief-Justice, Trenchard, Parker, Kalisci-i, Black, Katzenbach, White, Gardner, .Ackerson, Van Buskirk—10.

For reversed—None.


text:
    Philip Marot, surviving executor, &c., of Benjamin Franklin Leeds, deceased, complainant-appellee, v. Rene Bassett et al.
    [Decided September 28, 1923.]
    On appeal from the court of chancery.
    This was a bill for construction of the will of B. Franklin Leeds, deceased. The testator, after mentioning a number of pecuniary legacies and the devise of one or two minor tracts of land, provided in his will as follows:
    “Before, however, any of the above bequests can be passed to those to whom they will be due the following three annuities must needs mature (end).
    “These annuities are: One to Sarah Arietta Packard for the sum of sixty ($60) dollars monthly, to continue during her life and to be for her own use only.
    “Another, to Anna Zillah Iladley for thirty-five dolls. ($35.) monthly to cover a period of fifteen (15) years, or less if death do determine.
    “A third to the children of Irena Bassett (son of Mark R. Bassett) and the daughter and daughter-in-law of Franklin Bassett (son of ¡Mark S.) the amount of which would be divided annually amongst the said children daughter and daughter-in-law.
    “This 3rd annuity would yield about $300 a year, the probable interest upon six thousand for a period of fifteen years.
    “Any income my estate" may yield m addition to the amounts of the annuities above-mentioned whilst the annuities are still running, is to be equally divided between my executor.”
    He then appointed his brother Josiah Jxieds and the present respondent executors, and made this further provision :
    “Before signing I will make this following note: In case of the deatli of either of the first two annuitants the principal sum from which the income of the annuity was derived shall be at once divided amonest those to whom it was willed.”

      The other facts relevant to the present appeal are contained in the following extracts from the conclusions filed b}' Vice-Chancellor Learning:
    “It is disclosed in the present suit that the fifteen years5 limitation of the second and third annuities referred, to in the will here in question has expired and the present bill is for determination of matters arising by reason of the termination of two annuities referred to.
    “The first annuity named in the will is still in force and will continue during the life of Sarah Arietta Packard, therein named.
    “The primary question presented for solution at this time is whether or not the termination of the second and third annuities renders the several bequests of money named in the will payable at this time.
    “It seems to me entirety clear that the bequests of money named in the will cannot be paid until the death of Sarah Arietta Packard, the annuitant named in the first annuity, without violating the specific directions of testator.
    “The provisions of the will relating to the payment of these bequests are as follows:
    “ 'Before, however, any of the above bequests can be passed to those to whom they will be due the following three annuities must needs mature (end).5
    “The only qualification to that absolute and unqualified direction is to be found in a subsequent paragraph of the will providing as follows:
    “ 'Before signing I will make the following note: In case of the death of either of the first two annuitants the principal sum from which the income of the annuity was derived shall be at once divided among those to whom it was willed.5
    “Since neither of the first two annuitants has died this qualification of the preceding directions above quoted obviously is in no way operative. Accordingly, it seems impossible to determine at this time that the bequests referred to have become payable without disregarding the plain directions of testator. In the last-quoted paragraph testator may have intended that at the termination of either the first or second annuity by death or otherwise, there should be a pro raia distribution of a portion of the estate among the several legatees; but whether testator intended that or not he has clearly stated to the exact contrary.”
    The decree accordingly provided that the various bequests of money above mentioned, and which need not be stated in detail, “'shall not be paid until the death of Sarah Arietta Packard, the annuitant named in the first annuity mentioned in said will.”
    The appeal is by Juliet Hellings Bassett, one of the legatees, from this portion of the decree, and the ground of alleged error is that “said bequests of money should be paid at this time, and payment thereof should not be postponed until the death of Sarah Arietta Packard.”

      Messrs. Carr d’ Carroll, for the appellant.

      2[r. Harry J. Able (Mr. Osiris D. McConnell on the brief), for the respondent.
   Per Curiam.

The decree of the court of chancery should be affirmed, for the reasons given by Vice-Chancellor Learning as above.

For affirmance — The Chief-Justice, Trenci-iard, Parker, Bergen, Mintubn, Kaliscii, Black, Katzenbacpi, White, Heppenheimer, Van Buskirk—11.

For reversal—None.


text:
    Elma Linnekogel, petitioner-appellant, v. George W. Linnekogel, defendant-respondent.
    [Decided October 11th, 1923.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Bentlej', who delivered the following-opinion orally:
    “This is a petition for an absolute divorce on the ground of constructive desertion.
    “The parties were married on the 23d day of April, 1912, and immediately commenced to live in Jersey City, at the home of the wife. The petition states ihat almost from the beginning of their married life the defendant practiced a course of cruelty and abusive treatment toward her, and then sets out in detail the acts of extreme cruelty which she saj^s drove her from her husband and justified her in remaining away from him for the statutory period. There has been an abundance of proof of the marriage and of the residence, required under our act, leaving only the subject of the husband’s conduct against his wife to be considered.
    “The petitioner charges that he has been guilty of habitual, or almost habitual drunkenness; that he has used profane language to her, and indulged in a systematic course of conduct to keep her awake in the nighttime. She says, and in this she is corroborated, that he would go to bed at an early hour in the evening while she would still be engaged until a much later hour with her household duties, and then having refreshed himself with some slumber would quarrel with her continuously from the time that she would go to bed until late hours, sometimes extending beyond the dawn. She also says that at times the defendant would come home so drunk that he would fall out of bed and it would be necessary to secure the services of her son to put him back into bed, and has described his threats of suicide in the pond upon their place in Ramsey as another sample of his ingenuity in this respect.
    “In my opinion, the love that this woman had for this man was killed almost immediately after the marriage ceremony. She has testified, and I confidently believe it to be true, that they quarreled because' he wanted her to continue to keep boarders instead of taking her support and the support of her infant children upon his shoulders, as he should have done. At that time he was not maimed, nor had he lost any of his faculties. From that lime on, as I said before, I believe that the petitioner lost all love for this man, with the consequence that a most pitiful condition of affairs existed in the household.
    “The children of the petitioner’s former marriage have shown, by their attitude on the stand even more than by the testimonjr that they have given, their undying and consuming hatred for the defendant. It seems to me that the defendant is a difficult man to live with or get along with. lie is opinionated and obstinate; seems to be very confident of his own opinions, as shown on the stand in using words, time after time, the meaning of which I do not believe he even knows and which did not fit in with the context of the sentence. He has apparently never exerted himself as a man should to support his wife, but has permitted her to go out and toil almost like a laborer to make money.

      “I might say, in passing, that there were a great many blind alleys’ opened up in the trial of the issues in this case which I am not going to regard at all, such as the testimony as to the relationship between Mrs. Linnekogel and some man named Beach. I do not believe there is a scintilla of truth in that insinuation, or that that is the reason why she wishes to rid herself of this man.
    “But my difficulty is in having the proofs come under the language of the statute. In this state the only authority in the court of chancery to try divorce suits arises out of the Divorce act, and if a case is not brought within the language under which it is commenced there is no ground for a divorce. Extreme cruelty does not mean constant quarreling and bickering. Extreme cruelty has been defined by Vice-Chancellor Tan Fleet, in Black v. Black, 30 N. J. Eq. 228, in language which has been commented upon time and time again and approved in several cases such as Smith v. Smith, 40 N. J. Eq. 566, and the very recent case of Doty v. Doty, 92 N. J. Eq. 660. But in all of these cases there has been a condition of affairs within the family far worse than appears in the case at bar. Mr. Justice Kalisch, speaking for the court of errors and appeals in the Doty Case says, that the petitioner was driven away by her husband’s persistent abuse, consisting of his coming home frequently intoxicated; that he called his wife vile names, and, it might be said in passing in this case, that the worst language that has been described by any 'of the witnesses is that Mr. Linnekogel has told his wife to go to hell. In the Doty Case the defendant charged his wife with infidelity to the marriage bed, the most grievous insult that can be put upon a woman; that he introduced dissolute men and women in his home and caroused with them until one or two o’clock in the morning, in which carousals much indecent and profane language was used and, as a consequence of such behavior, she was unable to obtain proper rest and sleep at night, and this repeated conduct on his part resulted in undermining her health. It even appears in the Doty Case that the defendant had added to his misdoings by taking up improperly the companionship of another woman.
    ' “And so in the case of Close v. Close, where the most vile and opprobrious epithets were leveled at the wife, where there were charges made against her honor, openly and publicly, or else in other eases there had been such violence, physical and actual, as to cause an apprehension that the continuation of the marriage state would result in the wife being permanently and severely injured or killed.
    “But we have none of these things in the case at bar. There is no violence proved here. One or two witnesses did speak of the defendant having once lightly struck the petitioner in the chest, but that was not followed up-. Counsel does not seriously urge that there is any physical violence in this case, and I feel that, painful and unpleasant as life with this man must have been, under the policy of our law that is the chance this woman took when she married him. If marriages are to be broken up because parties cannot get along together, then it can only be done by this court after the legislature adopts a statute similar to those of some of the western states and makes incompatibility of temperament a ground for divorce.
    “In this case, while I believe that all the allegations in the petition has been proved I feel that they do not constitute grounds for a divorce; yet I will advise the decree without prejudice, so that- if this man continues to disturb and bother his wife and adds to what he has done in the past other acts to make her unhappy, there will be added and accumulated to those the facts that have already been proved in this case, after having been warned by the court, that it is his duty, that the law requires him as the stronger member of the union, to perform his part of the marriage contract and to see that a home is provided for his wife where the conditions will be happy and where his self-confessed disagreeableness of ■character will not make it intolerable for her to live with him. I will advise a decree dismissing the petition in this case, but without prejudice to the filing of another petition.
    “As I have said to counsel, and.as I think this conclusion already shows, my determination that there should not be a. decree of divorce is based upon the single ground that, uncomfortable and unpleasant as the life of the petitioner has been made by the defendant, I do not consider that his acts of unkindness amount to that degree of cruelty or conform to the standard expressed in the cases of our state as constitute the foundation for a decree of divorce a mensa et thoro for -extreme cruelty.”

      Mr. Louis Ogusl, for the appellant.
   Per Curiam.

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

For affirmance■—Ti-ie Ci-iiee-Justice, Trenciiard, Parker, Bergen, Black, Katzbnbaci-i, White, Ackerson, Van Buskirk—9.

For reversal—Minturn, Kaliscii, Heppeniibimer—3.


author: Per Ctiriam.

text:
    Lehigh Valley Railroad Company v. John E. Andrus.
    [Decided November 19th, 1923.]
    On appeal from a decree in chancery.

      Mr. Bobert J. Bain, for the Lehigh Valley Railroad' Company.

      Mr. John B. Hardin and Mr. Edward 0. Stanley, Jr., for the defendant below.
   Per Ctiriam.

The bill of complaint in this cause was filed by the railroad company for the purpose of obtaining from the court of chancery a decree fixing the amount of rent to be paid by the company to Andrus under a lease for certain lands in Bayonne, the title to which is in Andrus. The term of the lease was for a period of sixty years, beginning in 1889, and the instrument provided for an adjustment of rents at stated periods during the running of the lease. One of these periods began on the 5th of June, 1919, and terminated on the 5th of June, 1929, and the application to the court of chancery was for the purpose of having the rent for this period fixed by that tribunal.

The facts and circumstances which rendered necessary this application to the court of chancery are set out in our opinion, promulgated in an earlier stage of the case, and reported in 92 N. J. Eq. 238; and the existence of jurisdiction of the court of chancery to entertain the application was affirmed by us against the challenge of the defendant. The court of chancery, upon the ease being remitted to it for further proceedings, took testimony for the purpose of determining the value of the leasehold estate and the fair annual rental for the period embraced in the litigation. The conclusion reached by the vice-chancellor who heard the ease was that, on the proofs submitted, the fair rental for the property for the period mentioned would be $48,431.25 per annum, this rental being computed on the basis of five per cent, return on the market value of the property as ascertained by him. Both sides have appealed from the fixation of the rent by the vice-chancellor, the defendant claiming that it is too low and the complainant that it is too high.

A careful consideration of the proofs sent up with the appeals leads us to the conclusion that we should not interfere with the finding of the vice-chancellor fixing the rent at the figure above indicated.

The case discloses that within five days after the filing of the bill in the case the defendant, Andrus, brought suit against the railroad company for the use and occupation of the premises for the first three months of the term which began on June 5th, 1919; that this suit went to judgment, and that the amount of the recovery has not yet been paid by the railroad company. This suit was based upon the following provision in the lease: “If for any cause a valid award” [b,y arbitrators] “fixing rentals shall not be made, then the landlord may recover by action from time to time, at law or in equit}’, a fair quarterly compensation for the use and occupation of the demised premises.” The learned vice-chancellor recognized the validity of this judgment, but, nevertheless, decrees that the rent fixed by the decree should be charged against the railroad company for the ten-year period beginning June oth, 1919, and that there should be credited as a payment upon that rent the amount of the judgment which had been recovered by the landlord after said judgment should be paid. The defendant also appealed from this part of the decree, his claim being that the rent fixed by the court of chancery should not begin to run until the end of the three months’ period covered by the judgment. We think his contention is sound. The parties themselves agreed by the provision of the lease just cited that the defendant should be entitled to receive for the three months’ period covered by the judgment such sum as a jury should find was a reasonable compensation for the use and occupation of the demised premises during that period; and, this being so, it is immaterial whether the sum fixed by the jury is greater or less than the proportionate rent fixed by the court of chancery. The judgment fixed the amount to be paid by the tenaart for the use and occupation of the premises from June 5th, 1919, to September 5th of that year, and the rent fixed by the decree of the court of chancery should not begin to run, therefore, until the latter date. If the contrary theory be adopted, then the fixing by juries at recurrent quarterly periods of the fair compensation to be paid by the tenant for the use and occupation of the premises, and the payment of the amounts thus fixed, would lack the element of finality, and could be overridden by the court of chancery in a proceeding like that before us, if that court should disagree with the several verdicts found by juries at these recurrent intervals.

Our conclusion is that the decree appealed from should be affirmed, with the modification which we have indicated, and it will be so ordered.

For affirmance — Tiie Chiee-Justice, Trenchard, Parker, Ka-lisch, Black, Iyatzenbach, White, IIeppeniriiiMER, Gardner, Ackerson, Van Buskirk—11.

For reversal—None.


text:
    Wilhelmina T. Gibbs, complainant-respondent, v. Reuben Gibbs et al., defendants-appellants.
    [Submitted July 9th, 1923.
    Decided November 19th, 1923.]
    On appeal from the court of chancery; decree for complainant advised by Vice-Chancellor Buchanan, reported in 92 N. J. Eq. 542.

      Mr. Barry Cooper, for the appellants.

      Mr. Ellis L. Pierson, for the respondent.
   Per Curiam.

This was a bill to reform a purchase-money mortgage made out in the name of complainant and Peuben Gibbs, her husband, as mortgagees, and which the husband later undertook to assign to the defendant Warren Gibbs. The vice-chancellor advised a decree of reformation so that the mortgage and the bond secured thereby should read to the complainant. Wilhelmina, alone, and held on the évidence that defendant Warren Gibbs was not a bona fide purchaser for value. The reasons for his decision are stated in an oral deliverance of some length which need not be reproduced in full. We concur in his finding that inasmuch as the title to the property described in the mortgage had stood before conveyance to the mortgagors in complainant, Wilhelmina, alone, even if her husband had paid for it and put the title in her name, this imported a settlement on her, and that the husband had failed to show a different intent by any evidence satisfying the rule of burden of proof in such cases. McGee v. McGee, 81 N. J. Eq. 190; Hood v. Hood, 83 N. J. Eq. 695, 698. We concur also in the finding that the insertion of the husband’s name as co-mortgagee in the mortgage and bond was, as to the mortgagors and the wife, a mistake, growing out of the requirement by vendees’ attorney that the husband join in the contract of sale, and the oversight of the scrivener that drew the papers, and either a mistake or fraud on the part of the husband. The finding that Warren had no rights as a bona fide purchaser was also fully sustained by the evidence.

The decree will be affirmed, with costs.

For affirmance — The Ci-iiee-Justice, Trenci-iard, Parker, Kaliscti, Black, Katzenbaoh, White, Heppeniieimer, Ackerson, Yan Buskirk—10.

For reversal—None.


text:
    Harvey F. Carr, receiver, &c., appellant, v. Sterling Realty Corporation et al., respondents.
    [Decided September 28th, 1923.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Ingersoll, and reported in 91¡. N. J. Eq. 128.

      Messrs. Bleakly, Stockwell & Burling, for the appellant.

      Messrs. Cole & Cole, for the respondents.
   Per Curiam.

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

For affirmance — The Chiee-Justice, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Katzenbach, IIeppenheimer, Van Buskirk—10.

For reversal—None.


author: Per Curiam. Parker, J.

text:
    Albert H. Atha, appellant, v. Mart H. Atha et al., respondents.
    [Decided October 19th, 1923.]
    On appeal from a decree of the court of chancery advised by 'Vice-Chancellor Church, whose opinion is reported in 1 N. J. Adv. B. 901, and 94 N. J. Eq. 692.

      Messrs. McCarter .& English, for the appellant.

      Mr. Nicholas W. Bindsell and Mr. Merritt Lane, for the respondents.
   Per Curiam.

So much of the decree as has been appealed frorii will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Church.

Parker, J.

(dissenting).

I concur in the finding of fact by the learned vice-chancellor that the defendant below had been guilty of adultery, but am unable to concur in the further finding that the petitioner consented to or connived at such adultery, of which he seems to have had no knowledge or suspicion until after the filing of his original petition. This seems to bring the case within the ruling in Woodward v. Woodward, 41 N. J. Eq. 224, and on the authority of that case I voted for a reversal.

Judge Aekerson authorizes me to say that he concurs in the foregoing views.

For affirmance—The Chiee-Justice, Trenchard, Min-turn, Kalisci-i, Black, Katzenbaci-i, Heppeni-ieimer, Van Buskirk—8.

For reversal—Parker, Ackerson—2.


text:
    Katharine A. O’Leary et al., respondents, v. Arthur R. Smock, executor, &c., appellant.
    [Decided October 19th, 1923.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Foster, who filed the following opinion:
    “Complainants, who are mother and daughter, seek by their bill to compel the payment of legacies bequeathed to them under the will of Mrs. Sarah A. Bradshaw, with interest thereon from December 13th, 1917, which was one year after the date of the death of the testatrix.
    “Mrs. Bradshaw died December 13th, 1916, leaving a last will and testament, by which she bequeathed to complainant Mrs. Katharine A. O’Leary $2,000 and to Mabel Elizabeth O’Leary, the daughter of Katharine, and a minor, $10,000. The will was duly admitted to probate on December 26th. 1916, and defendant qualified as executor thereof. The estate is ample to pay all debts and legacies, and it is not claimed that interest has not been received by the defendant from the amount of these legacies. Payment of the legacies with interest thereon from December 13th, 1917, has been demanded by complainants, and this demand has been refused by the defendant on the ground that complainants on or about October 10th, 1917, joined with the Asbury Park Trust Company in a proceeding or contest in this court to have Mrs. Bradshaw’s will declared invalid for lack of testamentary capacity and other cause. It'appears that after the hearing of this contest the bill was dismissed, and that an appeal was thereupon taken, and that this contest was finally settled between the parties, without determination by the appellate court, about September 1st, 1921. Upon this settlement defendant tendered complainants the amount of their respective legacies, which tender was refused.
    "Defendant contends that as complainants were instrumental in provoking protracted litigation over testatrix’s will, and thereby delayed the settlement of her estate and the payment of their legacies, they are, as a consequence, not entitled to interest on their legacies, as he claims it would be inequitable to take from him and his co-residuary legatee and devisee the amount of this interest, which is a part of the residuary estate bequeathed and devised to them, and he further claims that such interest should only be paid from the date of settlement of the litigation over the will.
    “This contention of defendant, if allowed, would add a new element to our statute concerning legacies (Comp. Stat. p. 8088 § J), which provides: ‘If no time is fixed in the will for the payment of such legacy, the said executor or administrator shall have one year after probate to pay and satisfy the legacies given therein.’ In Ashlon v. Wilkinson, 58 N. N. Eq. £87, the court of errors and appeals stated the general rule that when no time for the payment of a legacy is fixed by the will, it is demandable one year after the death of the testator, and that interest upon the legacy is to commence to run from the date when the payment of it is demandable. This general rule has not been changed by the provisions of the statute which have been quoted. Davison v. Rake, 45 N. J. Eq. 767. For the reasons for this rule see 18 Am. & Eng. Encycl. L. 798, and under this rule the rights of. the legatees to the payment of interest are not affected by the fact that they were engaged in, or were parties to, a contest over the will, which delayed a settlement of the estate. 40 Cye. £104- As there is no provision in the will postponing the payment of these legacies beyond the statutory period, and as there is nothing in the circumstances of the case taking these legacies out of the general rule, or to support the contention of defendant that complainants should be penalized, by the loss of interest, for joining in the contest over the will (which penalty if imposed would be for the benefit of defendant as a residuary legatee and devisee), I will advise a decree that complainants are entitled to the payment of their respective legacies, with interest thereon from December 13th, 1917, which is one year after the date of the death of the testatrix.”

      Messrs. Durand, Ivins & Garlón, for the respondents.

      Mr. Daisied D. Wainright, for the appellant.
   Per Curiam.

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

For affirmance—The Chief-Justice, Trenchard, Parker, Minturn, Ealisoh, Black, Eatzenbaoh, Heppeni-ieimer, Aokerson, Van Buskirk—10.

For reversal—None.


text:
    Central Trust Company, complainant, v. Mary F. Street, defendant.
    [Decided September 28th, 1923.]
    On appeal of Charles Foulon.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, who filed the following opinion:

      “In Aubry v. Schneider, 69 N. J. Eq. 629, Vice-Chancellor Stevens fully committed this court to the view that under our statutes a tenancy by the entirety in personal property cannot be recognized. Adopting that view and basing his decision on that case, Vice-Chancellor Fielder expressly held that a mortgage to a husband and wife created a tenancy in common and not an estate by the entirety, and his decree was subsequently affirmed by our court of errors and appeals on the opinion of the vice-chancellor. Flemming v. Iuliano, 92 N. J. Eq. 685.

    “In the present case it affirmatively appears that the mortgage here in question was not only made to the husband and wife, but also that it was a purchase-money mortgage given in part payment for the sale of real estate, the title to which was held by the husband and wife as tenants by the entirety. To regard this as a distinguishing feature from the two cases referred to is not only to disregard and essentially overrule the decisive view adopted by this court in the former case and apparently approved in the later case by our appellate court to the effect that our legislation has rendered it impossible to recognize the existence of an estate by the entirety in personal property, but also is to base either a right of survivorship or a sole ownership in one of the parties upon an ascertainment of the prior rights of the respective parties in the consideration on which the chattel interest is founded. The right of survivorship and the respective interests of the parties in an estate by the entirety in real estate are purely incidents of the estate and flow from the form of the deed, and are in no way dependent upon the manner of its creation. The estate created by the bond and mortgage here in question must be determined by the terms of the instruments in the absence of a decree of reformation of their terms. Under the decisions of this state already referred to the terms of these instruments constitute the parties tenants in common, and the administrator of the deceased wife has become entitled to oiie-half interest in these securities.

      “A referenuee to the text and authorities cited in 18 R. C. L. 1105 et seq. (§§ 128, 129), discloses that the prevailing view in our sister states is contrary to the conclusions reached in the eases in this state; but this court is obviously bound by the decisions in this state hereinabove referred to.

      “A decree will be advised in accordance with the views herein expressed.”

      Mr. Cyrus D. Marter, for the complainant.

      Mr. Harold W. Bennett and Mr. David B. Bose, for the defendant.
   Per Curiam.

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

For affirmance — The Chief-Justice, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Katzenbach, White, Heppenheimer, Gardner, Van Buskirk—12.

For reversal—None.


text:
    Elijah B. Morehouse, respondent, v. John M. Kelly Contracting Company, appellant.
    [Decided October 5th, 1923.]
    On appeal from a' decree of the court of chancery advised by Vice-Chancellor Learning, who filed the following opinion:

      “In this suit complainant, an employe of defendant corporation under a written contract of employment, seeks an accounting to determine the amount due him from defendant under the terms of that contract. Defendant claims that complainant has been overpaid and counter-claims. By the contract between the parties complainant was to be paid a feed salary (which salary has been paid), and in addition thereto ten per cent, of the annual net profits of the corporation; settlement of the amount due as commissions on the profits were to be made between the end of each calendar year and February 15th of the succeeding year. It is touching these commissions that this dispute arises.
    “A reference has been made to a master before whom testimony on behalf of the respective parties has been taken at great length. The master has stated an account between the parties and reported to this court his findings and conclusions in which he determines that there is due to complainant from defendant for commissions on the net profits of the year 1918 the sum of $1,915.27 and for commissions on the net profits for the year 1920 the sum of $2,854.42, in all the sum of $4,769.69; and that nothing is owing from complainant to defendant.
    “Defendant corporation has filed forty-six exceptions to the master’s report. These fell be considered herein by reference to their serial numbers, without the burdensome process of quoting the several exceptions.
    “The learned master has, at the commencement of his report, made a statement of the specific issues between the parties which is so full and accurate that it may be here adopted to avoid unnecessary repetition. This statement of the master extends to page 19 of his typewritten report, at which point he reaches a discussion of the settlement made in February, 1919, for the calendar year 1918. In this preliminary statement of the master he includes findings of fact and conclusions of law which I have adopted without reservation and which may be advantageously read as a part of these conclusions. This portion of the report of the master finds that complainant became entitled to no part of the profits of the business of the year 1916 because no net profits were earned; and that complainant became entitled to $7,801.36 as ten per cent, of the net prots earned by defendant during the year 1917, and that complainant was paid that am omit as his percentage of earnings in the settlement made for that year
    “Up to that point of time there appears to be no substantial dispute between the parties. Their material differences begin touching the earnings of the years 1918, 1919 and 1920.
    “It will be observed by the statements of the master, already referred to, that a major part of the controversy between the parties is due to different construction placed by them on certain terms of the contract. These terms are: Defendant ‘agrees to pay the second party [complainant] ten per cent, of the net profits of said business as evidenced by the books of the company during the period-of said employment. The said net profits are to be computed and accounted for annually between January 1st and February 15th of each year, beginning with the year 1917.’
    “Complainant claims that this stipulation contemplates that he shall receive his specified percentage on the net profits actually earned in each year and that these profits shall be ascertained and the percentage paid at the end of each year and before February 15th following. Defendant claims that under this stipulation the settlements must be made by the books as kept b3r it, and that defendant was accordingly privileged to keep its books under a system of bookkeeping whereby profits which are actually made on a contract in the year 1918 were not entered on its books as profits of that year, providing the contract was not fully completed in 1918; thus crediting the entire profits of such a contract in the year 1919 when the contract should be finished, even though it may have been almost finished in 191$. It is claimed by defendant that that practice is a recognized system of bookkeeping and that the adoption of that system is peculiarly a prerogative of defendant and a matter of no proper concern to others.
    “It is necessarily a matter of choice on the part of a construction corporation whether it keeps its books of account by a system which credits at the end of each year as earned a proportionate part of the profits of an unfinished contract based on the percentage found to represent the profits made on that job during the calendar year, or whether it merely enters in an account on its books the receipts and expenses of that contract and credits no part of the profits of the contract until the contract is wholly completed. But, obviously, rights of others may be involved in a manner to make it a source of concern to them which system is adopted. The choice between the two systems does not appear to be a matter of material concern to the government in collecting income taxes, since a profit earned but not credited'at the end of a year must be reported for the subsequent year when the contract is finished, and if reported as part earned at the end' of the year the. total amount ultimately earned must be reported and accurately adjusted by the subsequent or amended return. All this is specifically provided for in the government income tax regulations.
    “But a choice of these two methods of accounting may be a matter of serious concern to an employe of a company who is to receive compensation for his services based upon a percentage of the net profits of the corporation during a definitely specified period, and who is not liable for losses, but merely receives no commissions if net losses result from the operations of the year. Obviously, an employe under a contract of employment from January 1st, 1921, to January 1st, 1922, in which his compensation in addition to his fixed salary, was to be a given percentage of the company’s net profits during that period would be entitled to the given percentage of net profits earned by the company during that period. He could not claim the benefits of the entire profits of a contract which had been ninety per cent., finished in the year preceding his contract, nor should he be denied the benefits of his given percentage of the profits which had been earned on a contract which had been ninety per cent., completed during the year of his employment merely because-the system of accounting adopted by his employer was to estimate no profits on a contract until it should be wholly completed. In the illustration here given it seems obvious that in the former assumed case the emploj^e would be entitled to his percentage allowance on but ten per cent, of the profit of the given contract; in the latter assumed case, to his percentage on ninety per cent, of the given contract. For the same reason the company could not as against such an employe properly charge against profits really earned on various contracts in that year losses actually sustained in a preceding year on a contract of the preceding year merely because that contract was in part finished in the year of the employe’s engagement.
    “The same would be equally true of a contract for three years, extended like the present contract, by agreement, an additional year. If the agreed compensation should be a percentage of the net profits for the entire period it would necessarily include in an accounting all profits made and all losses sustained for that entire period; no more and no less. But the present contract is for a period of years with the following added provision touching the percentage to be paid on the amount of net profits: ‘The said net profits are to be computed and accounted for annually between January 1st and February 15th of each year, beginning with the year 1917.’ This stipulation can have but one possible meaning. It means that at the end of each calendar year and before the succeeding February 15th the net profits of the preceding year are to be computed and the employe is to be then paid his percentage on the net profits of such preceding year. Clearly, this could not entitle the employe to any part of the profits actually earned in a year preceding the year of settlement, even though such profits had not been entered on the books until the year covered by the settlement; the same is equally true as to losses of a year preceding the year covered by a settlement, since such losses cannot be made the losses of the year covered by the settlement by merely having them entered on the books in that year. The preceding terms of the contract to the effect that the employer agrees to pay to the employe ten per cent, of the net profits of the business as evidenced by the books of the employer during the period of the agreed employment cannot properly be understood to require the employe to settle by books that do not disclose or that improperly disclose the profits of a given year for which settlement is to be made. That part of the contract, when considered in connection with the part of the contract immediately following, which clearly stipulates the manner in which each annual settlement shall be made, obligates the employer to keep accurate books from which the annual settlements can be made in the manner specified. It seems clear •that it does not justify the employer in charging losses actually made in a year preceding a year covered by an annual settlement against profits actually made in the year covered by such annual settlement. This method of settlement has no attending difficulties. If the profits on a given contract estimated at the end of a calendar year by a percentage that the job has been at that time completed is subsequently found to have been inaccurately estimated the error is easily adjusted. I fully agree with the master in adopting the method of accounting which he enforced. The importance to complainant of this method of accounting lies in the fact that it exempts complainant from sharing the losses of the lean year of 1919. It' is not contended that the contract contemplates that complainant shall share in the losses of any year in which the operations of that year result in a net loss to the corporation.
    “There are other exceptions which relate to certain specified entries made on the books of defendant as expenses, which several items the master has found to be improper charges against net profits as contemplated by the contract; these must be separately considered.
    “Exceptions 1, 2 and 3 are general exceptions to the findings of the master that the net profits for the year 1918 were $139,152.70.
    “Exception 4. I think the master was bound to reject the item of $1,577.59 for money drawn out in 1918 by Mr, Kelly, who owned all the stock of the corporation, in the absence of vouchers or adequate explanations as to what the money was used for. The burden to establish these expenditures rests on defendant.

      “Exception 5. I am impressed that the master was liberal in the matter of the charge for depreciation for 1918. It may be doubted whether a finding might not have been justified to the effect that an agreement existed that no charge for depreciation should be made. But, if allowed, I think the evidence fully justifies fixing the maximum amount at the amount found by the master.
    “Exceptions 6, 7 and 8 arise from the master dividing expense items charge in 1918 and making that portion,of the items which was for expenses of a subsequent year a charge as an expense of the subsequent year. This course on the part of the master has already been herein approved. As to the expense item referred to in exception 7 the master cites page 408 of the typewritten testimony in support of his finding. The page cited should have been page 438. There Miss Todd points out that the charge for life insurance on executives made in 1918 wa's for the years 1918 and 1919. The master accordingly charged one-half to each year.
    “Exception 9. I think the master properly charged the cost of the pumps, gas engines and wire cables to equipment account rather than to the specific job.
    “Exception 10. I find no error in the master transferring from the hire and equipment account of 1919, $1,017, and adding it to that account in 1918, thus making that account for 1918 disclose the balance of $11,277.77. It seems clear that when defendant hires out equipment for a period in 1918 for $1,017, the revenue belonged to that year and not to the j^ear 1919. See the dates as listed on typed testimony, page 34.
    “’Exception 11. I think the evidence justifies the finding of the master that $7,823.10, comprising certificate No. 6 of August 12th, 1919, for $3,823.10, and certificate No. 10, of May 12th, 1918, for $4,000, should be credited to 1918 on the Audubon job as determined by the master. This properly reduces the debit balance of the profit and loss account for 118 from $16,637.29, as shown on the books of defendant, to $12,779.26, as shown on the adjusted profit and loss account as the account is restated by the master.

      “Exception 12. The items of interest on the Audubon job are of the same nature. That interest, which accrued in
    1918, necessarily represents earnings of that year. That interest properly appears in the restated profit and loss account for 1918 of the master as a credit item of $990.
    “Exception 13. This is another item of profits earned in 1918 and credited on the books of defendant as profits of 1919.
    “Exception 14. This is a similar item. The profits credited on the books of defendant for 1918 were a total of $33,312.61; the master found that $3,654.16 of profits of 1918 were credited in 1919. This made the credit balance of the restated • profit and loss account $36,966.77. In this transfer I think the master was fully justified by the evidence.
    “Exception 15. This is another transfer to the year 1918 of profits which were earned in that year and credited in 1919. In this transfer I think the master was correct.
    “Exception 16. This is another trnsfer of the same nature.
    “Exceptions 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 and 29. These several exceptions are of the same nature and relate to' profits which the master found should have been credited in 1918 and were in fact credited in 1919.
    “These several exceptions from number 11 to number 29, inclusive, I have not undertaken to here discuss further than the detailed consideration of the propriety of transferring earnings from 1919 to 1918 when the earnings were in fact made in 1918 and not credited on the books until 1919. The master has, however, in his excellent and exhaustive report either discussed each item that is covered by these exceptions here referred to in detail and has given his reasons for his findings or has specifically referred to the pages of the testimony which support his findings. These conclusions of the master I have adopted. Accordingly, the report of the master from page 19 of his typed report, at the caption '1918/ to pag’e 39 of his report, at the caption ‘1919/ should be read in connection herewith, although some of the findings of the master are not specifically excepted to.

      “Exception 30. This exception relates to the year 1920, and excepts to the refusal of the master to allow a credit for money drawn by the president of defendant company. This is the same as a similar exception touching the year 1918, and must be similarly disposed of.
    “Exception 31. I think the reduction by the master of depreciation on automobiles from thirty-seven per cent, to twenty-five per cent, is reasonable.
    “Exception 32. Since the engineer’s report shows that the Cramer Hill sewers job was eighty per cent, completed in the year 1919, that percentage of the loss on the job should have been charged as a 1919 loss and not to the year 1920. See typed testimony, page 59. In so doing I think the master was correct.
    “Exception 33. In the Cramer Hill.sewer concrete pipe job the master treats the profits of the job, $4,089.10, as made in the year 1920. The books of defendant credit that as a profit of the year 1921. The evidence discloses that although the job was substantially finished in 1920, some work was done in 1921. The total cost of this job appears to have been $13,262.28; of this about $600'appears to have been charged in 1921. This $600 is comprised in part of two payrolls, one of January 7th, 1921, of $211.50; the other of January 14th, 1921, of $149.42; total payrolls in 1921, $360.92. A few other bills are also charged in 1921, making approximately $600. Obviously, this job was substantially completed in 1920, but since a few expense items of 1921 enter into it defendant may appropriately be credited whatever percentage of the total profits of $4,089.10 the 1921 items disclose as the unfinished part of the job. It is not shown that any bills remain uncollected. To entitle defendant to this credit I think the burden should at least be assumed by defendant’s counsel to present to me when the decree is signed a percentage calculation disclosing the amount so ascertained; otherwise the master’s report will be affirm'ed as to his finding on that item.

      “Exception 3-1. I think that the percentage of completion adopted by the master in considering this item affords the only practicable equitable method of adjustment, and the resulting adjustments made by him appear to me to be fully justified by the evidence. His reasons as given in his report are approved.
    “Exceptions 35, 36, 37, 38 and 39. These several exceptions are general exceptions touching the aggregate amount found by the master to be due to complainant and touching the right of complainant to have the accounts on the books of defendant restated so as to segregate the profits of each year. These features have been already fully considered.
    “Exceptions 40, 41 and 42. These relate to a finding of fact made by the master touching $1,200, which was admittedly paid to complainant by defendant. I approve of that part of the master’s report, for the reasons stated by the master at length in his report on the pages immediately following his caption of U918’ on page 19 of his typed report.
    “Exception 43. This exception is overruled, for the reason stated by the master and already referred to.
    “Exception 44. This item is fully considered by the master in that part of his report immediately following the caption U920’ on page 39 of his report. I approve of the findings of the master touching that item, for the reasons stated by the master.
    “Exceptions 45 and 46. These are general exceptions to the general result of the master’s findings, and are overruled.
    “I will advise a decree pursuant to the master’s report.”

      Messrs. Bleakly, Stockwell é Burling, for the appellant.

      Messrs. French & Bicharás, for the respondent.
   Per Curiam.

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

For affirmance —■ The Ci-iiei?-Justice, Trenchard, Parker:, Bergen, Minturn, Kaliscii, Black, Katzenbaci-i, I-Ieppenheimer, Ackerson—10.

For reversal—White, Van Buskirk—2.


text:
    Benjamin R. Fox, respondent, v. Samuel R. Lazowick et al., appellants.
    [Decided October 5th, 1923.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Ingersoll, who filed the following opinion:
    “I will look into the legal proposition. My mind at the present time is quite clear that the agreement between these parties was that Mr. Lazowick was to deposit to the joint account of these two people the sum of $10,000, which was to be used in payment oE the first money that was to be paid on account of this agreement which had been entered into between Fox and Penrose; that that payment was the consideration for which Lazowick was to receive his interest in the concern. I think that the action of the parties afterwards, the first payment of $10,000 they received, which may be only a coincidence, was exactly the amount that they had paid down, was divided between the two of them, and that there was no contention on Mr. Lazowick’s part that the money was his personalty until the final settlement. It seems clear to me that this money, the $10,000, was only deposited to the joint account, $5,000 thereof the property of Lazowick and $5,000 the proyiertr of Mr. Fox, subject, however, to the use, it could be only placed to the one use. Now, as to the legal propositions, whether the bill is such that there is other matter besides reformation, I will take up later and announce just as speedily as possible.”

      Messrs. Bourgeois & Coulomb, for the respondent.

      Messrs. Cole <('• Cole, for the appellants.
   Per Curiam.

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

For affirmance — The Chief-Justice, Trenoharp, Bergen, Minturn, Kalisch, Black, White, Heppeniieimer,, Van Buskirk—9.

For reversal—Parker, Katzenbach, Ackerson—3.


text:
    Louis J. Malone et al., complainants, v. Francesco Romano, appellant.
    [Decided September 28th, 1923.]
    On appeal of Francesco Romano.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Buchanan, who filed the following opinion:

      “The bill is-filed by the five children of Raffaela Malone (later Raffaela Romano), deceased, and alleges an agreement between their mother and Francesco Romano (the mother’s second husband), in 1909, whereby the mother was to invest about $1,000 in the purchase of a house and lots of land, and' 'would live together with the said five children, accumulate and improve the property and in the event of the death of either of them one-half the property should forthwith belong to the children, and in -the event of the death of both of them the property should belong to the said children outrignt, share and share alike.’ The bill further alleges that the arrangement was carried out, the property purchased (though the deed was made to Raffaela Romano and Francesco Romano), and all lived together until the mother’s death, in 191?, and the entry of the boys into military service—the daughter helping about the household and the boys contributing their earnings.
    “After the mother’s death the boys made allotments to the step-father. It is contended that they did this, relying on his statements that the property was theirs.
    “The prayer of the bill is that Francesco (or Frank) Romano be declared to hold the property in trust for complainants, or that the moneys paid by them 'be decreed to be a first and paramount lien on said land and premises.’
    “The theory of complainants’ counsel is that the case is one where a resulting trust arises from the purchase of lands with the wife’s money, the title being not taken in her name and there being no intended gift of the lands or a partial interest therein to the husband. Inch v. Clement, IS N. J. Eq. 590, is relied upon as an analogous case.
    “Let us examine the facts as established by the proofs or admissions.
    “At the time of the purchase, Frank Romano and complainants’ mother were husband and wife, and had been for nearly a year. The wife could not read or understand the English language—neither could the husband, apparently (for his testimony was through an interpreter).

      “The bill alleges that the wile, about the time of her marriage, received about $1,000 from Italy. The husband’s answer denies this. The bill alleges that the wife ‘contributed over $1,000 of the money received from family sources, to ■the said property, under the agreement.’ The answer ‘admits the contribution,’ * * * ‘but denies the agreement set forth in paragraph 6.’ No agreement is set forth in paragraph 6, though one is referred to. The, pleadings are reprehensibly slipshod and careless on both sides, and it is difficult to determine what is intended to be admitted and what denied. I cannot say from the bill and answer that it is admitted that the wife paid $1,000 on the original purchase of the property, though it is certainly admitted that she at some time contributed $1,000 to the property. (Improvements and other buildings were later added.) The husband, in his testimony, denies that the wife gave anything toward buying the property or towards the property, but says she later got $500 from Italy, which she gave to him.
    “Louis Malone, one .of the complainants, testifies that his mother put $1,562.68 into the property; that with it she bought the property; that he was present at the purchase, and the money paid was brought by his mother and turned •over by her to the vendor’s agent. It áoes not appear how he knew this exact amount was paid by his mother (he was not cross-examined on the point), except inferentially from his statement that he was present at the purchase; he was only fifteen years old at the time (though he had been working-for a year), nevertheless the testimony is positive and would probably control as against the thoroughly unsatisfactory testimony of the husband, were it not for the fact that the deed recites a total consideration of $2,900, of which $1,600 was by assumption of an existing mortgage—so that the balance paid could not have been more than $1,300. The jhusband says $900 of the $1,300 was paid by execution of a second'mortgage, and he also says that he paid $600 in cash, whereas there would have been only $400 cash paid if a $900 .second mortgage were given.

      “Albert Malone, who was thirteen years old at the time, and just starting to work, says he also was present at the purchase, and that his mother paid the purchase-money; that it was about $1,500.
    “Ziegler, the vendor’s agent, was dead, and hence, his testimony could not be had. Petro Yolpe, an Italian friend of the family, testified that he was present at Ziegler’s office at the purchase; he confuses the pronouns ‘he’ and ‘she,’ but I think his testimony means that Mrs. Romano bought the property with money of her own, received from Italy; he doesn’t remember seeing the money pass; doesn’t know how much money Mrs. Romano paid; thinks the total purchase price was $2,500, but an advance payment had been made and a ‘second mortgage’ was given (though he says nothing about a ‘first mortgage’).
    “George Barcia, a friend of the family, was present at the transaction as an interpreter. He saw the money on the table but doesn’t remember how much 'it was, or who brought it or turned it over to Ziegler—though there is some slight corroboration, from the testimony as a whole, that the money paid was Mrs. Romano’s.
    “Among the exhibits offered in evidence were a bond and mortgage, of even date with the conveyance, given by Mr. and Mrs. Romano to the vendor, Cachelin, payable two years from date, but in the principal sum of $1,050, not $900. This was not paid, according to endorsements thereon, until at least four year afterwards, when a mortgage for $900 was given to the building and loan association. A second mortgage of $1,050 leaves only $250 actually paid in cash.
    “This documentary evidence conclusively controverts on the one hand the husband’s statement that he paid a cash consideration of $600 at the time of purchase, and also, on the other hand, the story of the two boys that their mother paid a cash consideration of some $1,'500.
    .“By virtue of no reliance on the testimony of the husband, therefore (for from this and other parts of his testimony he proves himself unworthy of credence), but because of an equal inability to rely upon or place credence in the testimony of the two boys, in this behalf, I am constrained to hold that complainants have failed to prove that the wife paid the cash consideration.
    “And even if she had paid the $250 cash, that was not the whole consideration. There was the first mortgage of $1,600, which the husband as well as the wife obligated himself to pay, and there was the second bond and mortgage of $1,050 made by the husband as well as the wife.
    “The theory of resulting trust fails.
    “If the case be examined from the angle of the question of mistake, the result is the same. It is possible that Mrs. Romano believed that by the deed to herself and her husband each would take a half interest, and that her half would at her death go to her children (and that her husband either believed likewise, or fraudulently concealed his knowledge of the truth). There is some basis-for such a conclusion from the testimony of the witnesses Yolpe and Barcia (apparently disinterested), which testimony it is unnecessary to quote. The difficulty is that it is by no means conclusive. To warrant a decree that the deed be reformed from a deed to the grantees as husband and wife into a deed to them as tenants in common, requires proof that is practically conclusive. The evidence must be satisfactory, be}'ond a reasonable doubt. Ilupsch v. Beach, 1/5 N. J. Eq. 657; affirmed, J/6 N. J. Eq. 600. 'The proof must be clear and convincing, and upon testimony that is unexceptionable.’ Green v. Slone, 51/ N. J. Eq. 387 (at p. 399).

    “Moreover, there is another fatal obstacle in the way of relief by reformation, and that is that the grantors (or their representatives) in the deed are necessary parties in an action for such relief, and they are not in this case before the court. Thief es v. Mason, 36 Ail. Bep. 91/6.

    “There is some testimony to the effect that Romano represented or stated to the complainants that the title was, as to a one-half part, in the children, and it is contended that they paid moneys to him, relying upon such representation. One answer to this is that from the entire testimony of the complainants, the weight thereof is to the effect that wha.t was said by Romano was not a statement that the title was in such condition, but a promise that he would put it in such condition. And the promise, being merely verbal, cannot be enforced because of the statute of frauds.
    “Another answer, equally cogent, is that I am satisfied from the testimony of the complainants themselves that their wages and allowances during minority were given to their mother. Albert, for instance, saj's • ‘my money that I have earned, I brought to him; I gave it to my mother and step-daddy/ And Louis, after repeatedly saying that he gave his wages tó the step-father, later on in answer to a question of mine said, as to giving to the step-father all his wages from 1908 to 1914, ‘Yes, to him and my mother; they were both together.’ One of them said the mother was ‘leading the family.’ It is clear that they all lived together, the mother received the boys’ wages, and the services of the daughter, and some, at least, of her husband’s wages, and the children received their food and clothes and other requirements from the mother. The mother, under those circumstances, was entitled to the boys’ wages and the daughter’s services. Osborn v. Allen, 26 N.'J. Law 888.

    “The conclusion, then, from the facts as I find them to be, necessarily is that complainants are not entitled to any relief in the way of decree for conveyance or establishment of a trust or reformation of the original deed. Are they entitled to any relief whatever? If there were moneys paid by complainants to Romano, after attaining majority, in consideration of an oral promise by him to convey an interest in the lands, and that promise has been broken, then they are entitled to the return of such moneys. The pending suit having been properly brought in this court for relief obtainable here ■only, decree may be made herein for the return of such moneys, notwithstanding such relief could be had at law. Of. Bulloclc v. Adams, 20 N. J. Eq. 867; also, Gillen v. Hadley, 76 N. J. Eq. 602, a.nd sections 8, 9, Chancery act of 1915.
    “I think the proofs do establish the fact of such payments under the circumstances mentioned, although I might hesitate to reach such conclusion aside from the testimony of defendant, Eomano, himself. The daughter paid no moneys, and her sendees ceased at, her marriage while still a minor. Edward is also still a minor. As to the others (without going into detail as to the evidence), Louis paid $150, Albert $630, and Anthony $480. These payments (which exclude all payments made during minority and the life of the mother) are not denied by Eomano—indeed in large part they are specifically admitted in his testimony. His contention is that they were not paid pursuant to the oral contract alleged; that he made no such contract or promise; that the payments were made ‘to keep the family/ and that the family consisted of four children, the mother and himself. The falsity of this is apparent—the mother was dead during the period covered by the payments in question; the daughter was married and living with her husband; Albert, Anthony and Louis were away in the army (until the last few months of the period), and the ‘family’ consisted solely of himself and Edward, who was working and turning over his wages to Eomano, who also was earning good wages, as he says—$40 to $45 per week. The moneys then were paid, to keep the family. For what purpose were they paid? No other reason is suggested except complainants’ claim that it was in pursuance of an oral contract for them to do so and that he would convey to them an interest in the property. There is other testimony to support this claim, and I find it to be the fact. The refusal to convey such interest or any interest is admitted by Eomano. I will advise a decree for the payment by Eomano to the three boys of these moneys, to the return of which they are both legally and equitably entitled, from which, however, certain deductions are to be made. As to Louis, he received back $30 from Eomano. This leaves $120 due him. Albert received board and lodging from about May 1st, 1921, to September 27th, 1921—twenty-one weeks at $7 a week (which I fix as a fair price under all the evidence) equals $147, leaving $483 due him. Anthony received board and lodging from about June 11th to September 27th— fifteen week, or $105, leaving $375 due him.
    “No costs.”

      Mr. William J. Connor, for the complainants.

      Mr. 'Robert Peacoclc, for the defendant.
   Per Curiam.

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

For affirmance — The Chief-Justice, Tkenchard, Parker, Bergen, Minturn, Kalisch, Black, Katzenbach, White, Heppenhuimer, Gardner, Van Buskirk—12.

For reversal—None.