author: Buchanan, V. C.

text:
    Frank Grover and Clarence Grover, partners, trading as Grover Brothers, v. Edward S. Woodward.
    [Decided February 5th, 1920.]
    1. Where complainants seek to restrain defendant from suing them in a foreign jurisdiction, the restraint will be .granted if, and only if, complainants clearly show that the prosecution of the foreign suit is against equity and good conscience.
    2. Whore complainants show that the prosecution of the foreign suit is oppressive and harassing to them, and was so intended by defendant; or that defendant thereby evades, and intended so to do, an established policy of the laws of this state, defendant will be restrained from prosecuting the same.
    3. Qua-re. Is any further proof requisite of actual intent by defendant to harass or evade other than the intent which will be presumed of the natural and proximate effects of the acts done?

      4. The residence and the location of their established places of business of the parties, and especially of the complainants, are elements in determining whether or not defendant’s prosecution of the foreign suit is inequitable.
    5. Semble. The prosecution of the suit in the foreign jurisdiction would rarely, if ever, be restrained by this court, where both parties either resided or had their established places of business in such foreign jurisdiction.
    On order to eliow cause wliy restraining order should not be granted.

      Mr. Aaron T7. Dawes, for the complainants.

      Mr. Patríele PL. Harding, for the defendant.
   Buchanan, V. C.

The bill in this cause is filed to enjoin the prosecution of .a suit brought in Pennsylvania by defendant against complainants. The present application is for interim restraint.

The circumstances as disclosed by the bill and affidavits on both .sides are as follows:

Both complainants and defendant are, and have been for many years, residents and citizens of New Jersey.

Defendant carries on his business at Philadelphia, Pennsylvania. August 15th, 1919, complainants sold and defendant purchased two carloads of Giant potatoes, Grade No. 1, for $1,-313 and $1,262.50, respectiveljr, the potatoes to be by complainants delivered to the railroad consigned to defendant at Detroit, Michigan (apparently being destined for a customer of defendant at that place). The sale, delivery and payment were immediately completed.

The cars arrived in Detroit August 25th, and defendant received notice that about ten per cent, of the potatoes in one car, and about twenty per cent, in the other, did not qualify as Grade No. 1. This notice was forthwith transmitted by defendant to complainants. Defendant then sold the potatoes “in the open market in Detroit, and the loss on the sales were as follows:” On one car, $711.95; on the other, $543.89; total, $1,255.84. Notice to this effect was given complainants by defendant September 17th, 1919, and defendant demanded said sum from complainants, who refused payment thereof.

Shortly before the arrival of the potatoes in Detroit, the market price of potatoes dropped materially. Immediately on receipt of defendant’s notification that the potatoes had arrived in Detroit and were not up to grade, complainants,investigated by telegraph and were informed that the potatoes had not yet in fact arrived, and that defendant’s Detroit customer was objecting because of delay and misrouting, and were later informed that the ears had arrived and the potatoes of perfect condition and grade.

All of the witnesses as to the loading and shipping of the potatoes are residents of New Jersey. Complainants’ affidavits set forth that the potatoes shipped complied with the contract of sale, not only at the time of shipment but also after their arrival and resale in Detroit — one of the complainants’ affiants lieing a resident of New Jersey who happened to he in Detroit at that time.

Defendant, October 10th, caused a writ of foreign attachment to be issued out of the court of common pleas, in Philadelphia, and there was attached thereunder a debt of $2,100 due to complainants from one Scott (a resident of New Jersei’, having his place of business in Philadelphia) for potatoes which Scott had then just purchased from complainants. Scott denies collusion with defendant.

No- affidavit or proof of any kind of the alleged cause of action was filed in the Philadelphia court in the attachment suit. That court and all Philadelphia courts are congested and long delay will ensue in the prosecution and trial of the attachment suit in-Philadelphia. Complainants are of undoubted and ample financial responsibility. Immediately after the attaching of the debt as aforesaid, defendant notified complainants, demanding payment of $1,273.84, plus costs of the attachment, and saying that only upon that condition would the attachment -suit be discontinued. Tt does not appeal' that any further steps have been taken by defendant, either toward reducing his claim to judgment or toward having the attached debt reduced to possession.

(It was contended by defendant on the argument that complainants also had a. business location in Philadelphia. This point will be discussed later.)

No proof whatever is before this, court as to the provisions of the Pennsylvania statutes relative to attachment suits.

It has' been established beyond question in this court (a) that a suit to enjoin proceedings in another court (either of this state or of a foreign jurisdiction), where the prosecution of such proceedings is alleged to be contrary to equity and good conscience, is cognizable in this court and within its general jurisdiction as a court of equity; (b) that in such a suit, this court, if it have jurisdiction over the person of the person prosecuting the other proceedings (whether that person be a resident or citizen of New Jersey, or of a foreign state or country), has the power to enjoin him from further prosecuting the same; and (a) that in a proper case, it will exercise that power and grant the restraint sought. Bigelow v. Old Dominion Copper Co., 74 N. J. Eq. 457 (at p. 473); 71 Atl. Rep. 153; von Bernuth v. von Bernuth, 76 N. J. Eq. 177 (at pp. 181, 184 et seq.); 73 Atl. Rep. 1049.

Both of these opinions contain quite exhaustive reviews of the authorities. See, also, Federal Trust Co. v. Conklin, 87 N. J. Eq. 185 (at p. 187); 99 Atl. Rep. 109.

It is left, then, for this court to determine in each ca-e of this nature which comes before it whether it is a. proper case for the exercise of that power.

What are the principles which are to be considered in arriving at such determination in any given case?

Chancellor Magie says in Standard Roller Bearing Co. v. Crucible Steel Co., 71 N. J. Eq. 61 (at p. 62) : “The right of one claiming to be a creditor to pursue his debtor in any court of competent jurisdiction selected by him ought not to be interfered with by an injunction, unless it is made to appear clearly that the alleged creditor is using the process of the courts in an inequitable and unconscionable manner.”

Chancellor Pitney, in Bigelow v. Old Dominion, &c., Co., supra (at p. 473), uses the following language:

“But, on general principles, equity will not interfere with the right of any person to bring an action for the redress of grievanees — the right preservative of all rights — except for grave íeasons, and on grounds of comity the power of one state to interfere with a litigant who is in due course pursuing his rights and remedies in the courts of another state ought to be sparingly exercised. The courts of New Jersey ought not to assume, directly or by indirection, any appellate jurisdiction over the courts of Massachusetts, nor proceed in giving judgment here upon the idea that the courts of that commonwealth are in the least degree incompetent or unwilling to do¡ full and complete justice in all cases that are fairly within their jurisdiction.”

In von Bernuth v. von Bernuth, supra, Vice-Chancellor Howell refers to Chancellor Pitney’s opinion in the Bigelow Case, above quoted, saying that in that case “Chancellor Pitney declares that the power of this court to restrain persons within the control of its process from prosecution of suits in other states is clear, but holds that upon grounds of comity it should be sparingly exercised.”

A cursory reading of the quoted portions of the opinions above cited might give rise to the impression — certainly, counsel for defendant seems to have had such impression' — that more stringent requirements are to be met by complainant in a case of this kind than in other cases where injunctive relief is sought. I do not so understand the language of these opinions (aside from the fact that in certain cases questions of comity must needs be considered), nor do I think such interpretation warranted.

Omitting the question of comity, the authorities cited simply declare that complainant must allege and prove circumstances clearly entitling him, as a matter of equity, to the injunctive relief — circumstances clearly showing that the prosecution of the .proceedings in the other forum is or will be contrary to equity and good conscience. Otherwise, as in any other case, his bill will be dismissed or the relief denied for want of equity. And, as in any other case, injunctive relief will not be granted in doubtful circumstances. In other words, the court will not interfere with the prosecution of a suit in another forum merely because the parties are residents or citizens of New Jersey and the case might have been brought in this court, or in a court of this state. No case for equitable relief is thereby made out. Complainant must, as has been said, set up circumstances clearly showing that equitable principles require the granting of the restraint sought.

Turning, now, to the question of comity, I think that the eases in which comity, as such, is actually involved, will be found to be quite rare. In most of the cases in which at first, impression comity might appear to be a factor, the contrary will be found to be true, upon consideration. Eor instance, if complainant’s bill shows nothing more than a desire to have the controversy tried in this court instead of a foreign court, or an attempt to have this court review the judgment of a foreign court of competent jurisdiction, or the like, the relief will be denied, not upon grounds of comity, but because he fails to make out an equitable case.

So, too, in a case where this court might hold that the prosecution of the foreign action was fraudulent or oppressive toward complainant, if defendant were a resident of New Jersejq the opposite conclusion might be reached if the defendant were a resident of the foreign state. The question of comity will not be involved. Kempson v. Kempson, 58 N. J. Eq. 94, is illustrative of this. If the husband in that case had been a bona fide resident of Dakota, this court would not have restrained his prosecution of'the Dakota suit, because it could not have found anything inequitable in his so doing.

Circumstances showing a case for equitable relief, obviously, may fall under divers classes of equitable jurisdiction, many of which are enumerated by Chancellor Pitney in his opinion in the Bigelow Case. In the case sub judice it is contended that defendant’s action is inequitable, in that he oppresses complainant by obtaining an unconscionable advantage in the foreign attachment suit, similar to the situation in Standard Roller Bearing Co. v. Crucible Steel Co., supra, and that there is further oppression, in that he has brought the suit in Pennsjdvania to evade the policy of this state in regard to attachment suits, following the doctrine of Margarum v. Moon, 63 N. J. Eq. 586; 53 Atl. Rep. 179.

Omitting for the present the question of the effect of the busi.ness location in Philadelphia of defendant or complainants, it clearly appears that complainants have a bona 'fide defence to defendant’s claim, which they are entitled to have tried out; that the witnesses are some in New Jersey and some in Michigan, but none in Pennsylvania; that the result of defendant’s attachment in Pennsylvania is to- tie up for an indefinitely long period moneys of complainants amounting to almost double the sum claimed by defendant.

The actual result of defendant bringing the litigation in Pennsylvania is, of course, oppressive to complainants, because it deprives them of the ability to compel the attendance of the New Jersey witnesses at the trial. The facts in this respect do not make out as strong a case of injustice as in Standard Roller Bearing Co. v. Crucible Steel Co., where the foreign attachments were three in number, in far distant states, and each in a different state — and bearing in mind that complainant had his place of business in the place where he brought this suit, it may be doubted if a case for equitable relief would be established in this behalf unless it appeared that defendant had the intent to oppress. Not every hardship- is an oppression.

The actual result of defendant’s suit being commenced by the attachment of the $2,100 debt due to complainants is, of course, also a hardship to complainants and an advantage to defendant — but would not of itself justify intervention by this court. In the present case, however, it was unnecessary for defendant to proceed by attachment. Complainants were residents of this state as well as defendant and could have been served with the ordinary process to compel appearance to respond to defendant’s suit just as easily as by attachment in Pennsylvania. Indeed, except for collusion by the garnishee, or chance knowledge by defendant, it wo-uld scarcely be expected that defendant could learn of a debt due complainants from a Philadelphia citizen and attach the same, as readily or speedily as he could serve complainants with summons in this'state.

The writ of attachment is an extraordinary writ. City Bank v. Merrit, 13 N. J. Law 131 (at p. 13L); Leonard v. Stout, 36 N. J. Law 370 (at p. 371). The classes of cases for which it is intended are two — first, to- compel a non-resident or absconding debtor to appear and respond to suit; second, those cases whore defendant may be held to bail. 1 Comp. Stat. p. 132 § 1; 3 Comp. Stat. p. 4076 § 84. It is not, of course, contended that defendant’s alleged right of action falls within the second class. In a case such as that set up by defendant it is evident that the established policy of this state is, that a defendant shall not be subjected to the hardships of this extraordinary writ, except where the defendant is a non-resident of this state, or, being ordinarily a resident, absconds and becomes-temporarily a nonresident ; in other words, unless the use of this writ is necessary to compel response to plaintiff’s demand; and, furthermore, that even in a ease of such necessity, the writ shall not issue unless the damages claimed are liquidated (see Heckscher v. Trotter, 48 N. J. Law 470; Wynant v. Nautical School, 27 N. J. L. J. 202), and sworn proof of the existence of the debt, and the amount thereof, as well as of debtor’s non-residencc, be first filed by plaintiff. It is contrary to the policy of this state to permit a plaintiff, except under the circumstances and in the manner above mentioned, to obtain security for his claim, or to interfere with or encumber defendant’s property or dioses in action, prior to plaintiff’s establishing his claim by judgment.

In the present cace, it appears that the writ was issued without the filing of any affidavit or proof of the facts required under the policy of this state.

Furthermore, it appears that the writ would not have been issuable under the policy of this state, for the damages to which defendant would be entitled if his right of action be established, are not liquidated but unliquidated.

It is time that defendant says his claim is for a sum certain— $1,255.89 — the alleged - difference or loss on the resale of the potatoes. The sale, however, was made, was to be performed, and was performed, in this state, and the questions arising out of that contract and its performance are therefore to be decided under our Sales act. 4 Comp. Stat. p. 4647. From a consideration of that statute it is apparent that the defendant’s alleged right of action (he not having rejected the shipment as not being a delivery of the thing he purchased) is for breach of the warranty of quality. Paragraphs 6 and 7 of section 69 of the statute provide:

“Measure of damages for brea oil of warranty — (G). The measure of damages for breach of warranty is the loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty.
“Measure of damages for breach of warranty of quality — (7). In the case of breach of warranty of quality, such loss, in the absence of special circumstances showing proximate damage of a greater amount, is the difference between the value of the goods at the time of delivery to the buyer and the -value they would have had if they had answered to the warranty. . P. L. 1907 p. 888.”

Obviously, therefore, the sum, if any, which defendant is entitled to recover from complainants is unliquidated, and is not, and will not be (except by mere chance coincidence), the sum claimed by defendant. For, while the value of Grade 1 potatoes might be definitely fixed and ascertainable, yet it is impossible to see how the actual value of potatoes, defective in accordance with defendant’s claims, could be ascertainable without the intervention of a jury. It is not alleged even that the sale at Detroit was for the highest and best price obtainable, and if it were, the value at Detroit is not the value at Hightstown at the time of delivery.

It is evident, therefoie, that in bringing his attachment suit defendant is, in fact, evading an “established policy of the jurisdiction where the parties are domiciled.”

Many of the cases seem to indicate that defendant’s intent or purpose to harass and oppress or to evade the established policy of the domicile is a requisite factor in the establishment of complainants’ case.

Whether the intent, which will he presumed, of the proximate and natural consequences of the acts performed, is or is not sufficient, I am not called upon to decide — for it is clear to me that the actual intent to gain an unfair advantage by harassing and oppressing the complainants is shown in this ease.

Defendant in his affidavit denies that he had any such intent, but a little later says that he had the writ of attachment issued on the advice of his attorney. That which defendant did through his attorney, he none the less did himself. His attorney’s intent is chargeable to him. There is no affidavit by the attorney, and no denial that the attorney had such intent.

That the attorney did have such intent seems to me undoubted. He knew the congestion of the Philadelphia courts and the long delay that must precede a trial there; he knew that the natural place for the bringing of the suit was this state; he knew the effect which the tying up of complainants’ funds by attachment, and the other features attendant upon an attachment suit in Pennsylvania, would tend to have toward forcing complainants to pay or compromise the disputed claim. It is not denied that he wrote complainants immediately after the attachment, demanding payment of $1,273.84 and costs, and saying that only upon such payment would the attachment be discontinued. To me this is most significant. Why should such a letter have been written at all, especially by the attorney? Defendant had attempted the collection of the claim by correspondence, and by draft upon complainants; complainants denied liability, under circumstances indicating a bona fide defence, and not a mere attempt to evade payment of an honest debt, and litigation had become the necessary and natural result in order to determine the issue. No explanation of the commencing of such litigation was required nor to be expected. It does not appear that any attempt was made to serve'Complainants with summons in Philadelphia, nor any request for the acknowledgment of service, or entry of an appearance. Under these circumstances, the letter clearly indicates that it meant, and was intended to be so understood, “We have you foul; pay our demand or take the consequences.” It necessarily follows that the intent or purpose of the acts which resulted in giving the defendant the unfair advantage was precisely the obtaining of such advantage.

Eemains to be considered the question of the location of the places of business of the parties in Philadelphia. If complainants were established in business there, it does not seem to me that they could well complain that defendant was talcing an unfair advantage, or doing an inequitable act in bringing suit against them there, any more than they could if they were residents of Pennsylvania.

I clo not moan to be understood as being of the opinion that this court would never entertain a bill of this nature where the defendant in the foreign suit was, or even where both parties to that suit were, residents of the foreign state. Cases might, perhaps, arise where this court would exercise its undoubted power (if it bad acquired personal jurisdiction over the parties), but it is obvious that such cases would be rare, indeed, if any.

The same considerations must prevail with almost, if not quite, equal force, where the defendant, or both parties in the foreign suit, have an established place of business in the foreign state. Such a person is a yuari-resident — a “business resident,” so to speak — of the foreign state, and ought not to he heard to complain of being sued therein unless other strong circumstances exist to make up a case for equitable intervention.

In the instant ease, it is set forth, and not denied, that the sale to defendant and the sale to the garnishee were made at Hightstown, New Jersey. Complainants’ affidavits say squarely that complainants have no place of business in Philadelphia, and that all their business is done at Hightstown, New Jersey. This is not met by the evasive or argumentative statements in defendant’s affidavits that complainants “carried on business by the sale of potatoes through the Philadelphia market,” and “I knew that the said complainants traded in the city of Philadelphia just the same as I did.” Every single customer of complainants might be a resident of Philadelphia without complainants having any place of business in Philadelphia.. Receiving orders by mail or telephone from Philadelphia is by no means equivalent to having a business establishment in that city.

I conclude, therefore, that complainants axe entitled to the relief sought and will advise'an order for temporary restraint. Complainants will not be required at the present time to give security — the situation which may be developed upon final hearing may or may not lead to a different conclusion at that time. The issues involved in the main controversy between the parties are obviously cognizable at law and not in equity. The order will provide that complainants shall co-operate with defendant in the institution and prosecution, with all reasonable dispatch, of an action in a court of competent jurisdiction of this state, if defendant shall so elect to proceed before final hearing herein, and that upon failure in that behalf by complainants, application may be made for the discharge of the restraint.


source: Caselaw Access Project

license: Public Domain

text:
    Emma L. Hollingshead v. Richard M. Hollingshead.
    [Decided February 27th, 1920.]
    1. A decree of divorce by a foreign state between parties domiciled in this state, who have gone to such foreign state in order to obtain such decree for a cause not ground for divorce in this state, is absolutely void under P. L. 1907 § 33.

    2. A decree of divorce by a foreign state between parties domiciled in this state is absolutely void for lack of jurisdiction.
    3. The invalidity of such decree may be set up in a collateral suit in this state.
    4. The party obtaining such decree is not estopped by reason of having so obtained it. from setting up its invalidity in a suit in this state.
    Ü. Nor will such party necessarily be refused relief in equity, even though such void foreign decree was obtained by him or her by false representations to the foreign court as to the facts of domicile.
    6. Where the complainant in this court attacks the validity of such foreign decree -so obtained, equity will examine into all the facts and will accord or refuse the prayer of the bill upon general equitable principles, according to whether or not it deems it conscionable so to do.
    7. Where the obtaining of such void foreign decree by such false representations by the wife to the foreign court is in fact the scheme and act of the husband, effectuated through his fraud and duress upon and control over the wife, the wife in the absence of other circumstances will be granted relief in this court.
    8. Whore complainant sues for maintenance under the statute, and it appears that she had previously obtained a decree of divorce from deV fondant in Nevada by false representations to the Nevada court, and that defendant has since married another woman, and that complainant has accepted a lump sum in lieu of alimony pursuant to an agreement approved by the Nevada decree, nevertheless, she will not be denied relief, where it further appears that the Nevada proceedings were against her wishes, and were tire .result of fraud and duress, or conduct in the nature thereof by her husband, that her acts in that behalf were really the acts of her husband, that his second marriage occurred shortly after the granting of the decree, and it does not appear that complainant knew of the contemplated second marriage, or that she has been guilty of undue delay, and she tenders to defendant the return of the lump sum payment except a portion lost through unfortunate investment.
    Í). An agreement between husband and wife for the wife’s support is binding upon the wife only to the extent that it is fair and just.
    10. Such an agreement is no bar to a suit by the wife for maintenance, whore the assent of the wife thereto is the result of fraud or duress, or conduct in the nature thereof, on the part of the husband.
    11. Neither is it a bar to her suit that a lump sum has been paid to her pursuant to such agreement and that she cannot restore said sum to the husband, where it appears that the agreement was the result of fraud or duress by the husband, that the wife has lost part of the sum through unfortunate investment, and she tenders the return of the balance.
    12. The fact that a husband has provided an annual income of $4,800 for his wife’s support is not necessarily a bar to her suit under the statute — it appearing- that he ha¡s “a large amount of real and personal property,” and an annual income in addition of at least $20,000.
    13. Special replication stricken out for defects in form, as violating chancery rules 44, 40, 53, 56 and 57.
    On bill, &c. On motion to strike out special replication.

      Messrs. Wescoti & Weaver, for the complainant.

      Mr. Lewis Starr, for tbc defendant.
   Buchanan, V. C.

Complainant has filed her bill for maintenance under the twenty-sixth section of the Divorce act, alleging that defendant is her husband, and that he abandoned her in October, 1916, and has ever since refused to support her. She further alleges that he has a yearly income of $20,000.

Defendant, by his answer, sets up two defences. In the first place, he denies that he is complainant’s husband — alleging that complainant on April 26tli, 1917, and subsequent to the alleged abandonment, became domiciled in and a bona fide resident of Nevada, and there instituted a suit for divorce against defendant, wherein she alleged herself such resident, under oath; that defendant appeared and answered in that suit; that the Nevada court had jurisdiction and duly entered November 24th, 1917, a final decree of divorce in favor of complainant, which still remains in full force and effect. In the second place, he alleges that, at or about the time of the Nevada decree, and pursuant to the 'terms of an agreement in that behalf between the parties, he paid to her, and she received, for her support and maintenance $5,000 in cash and $60,000 par value of an eight per cent, preferred stock; that the Nevada decree adjudged such settlement a suitable provision for her support; that she has ever since received $4,800 annual income in dividends from said stock. He further alleges his subsequent marriage to another woman, March 20th, 1918 — in the belief that the Nevada decree was valid; and that complainant is not now nor has been since April 26th, 1917, domiciled in or a resident of this state.

Complainant obtained leave to file special replication, and filed the replication which defendant now seeks to have struck out. The pleading in question, it must be confessed, is prolix and couched in verbiage rather moré apt for a forensic address than a formal pleading, and lacks explicitness as to admissions or denial of the allegations of the answer. It was'the desire of both counsel, however, that the determination of the motion might go to the substance of the issues involved, and I think that the statements of the replication may fairly be taken as tantamount to the following: An admission of the Nevada suit and decree, coupled with a denial of the bona fides of complainant’s residence in Nevada, and consequently an assertion of lack of jurisdiction in the Nevada court, and therefore of the invalidity of the decree of said court; that she did not read or know the contents of the petition which she signed and swore to in that cause; that she went to Nevada, instituted the divorce action there, and agreed to the settlement of $65,000 for her support, and received and accepted the same, all at the instigation of her husband and under and because of compulsion and misrepr^entatíon bx_him; that she learned of defendant’s alleged fraud and misrepresentations and of her rights in the matter a few weeks after the date of the Nevada decree; that defendant did contract a second marriage March 20th, 1918, and that his' infatuation for the woman, he then married was the cause of his treatment of complainant; that she has lost, by unfortunate investment, $19,000 of the $65,000 (par value) of stock, but offers to return to defendant the balance thereof; she denies that she is not a resident of this state.

Numerous grounds of objection are specified by defendant n his motion to strike out, some going to the merits, others to the form. Dealing first with those addressed to the substance of the issues involved, they may be succinctly stated as follows:

1. Notwithstanding the facts as alleged in the replication, the Nevada decree is valid and a bar to complainant’s suit.

2. Whether or not the Nevada decree be invalid, complainant is estopped, on her own showing, .from denying its validity.

3. Notwithstanding the facts alleged in the replication, the executed agreement of lump sum payment by way of support is valid and binding on complainant, and hence a bar to her present suit.

4. Whether or not the agreement in satisfaction of the duty to support and maintain be valid, complainant cannot attack it, or have it set aside without a repayment or offer to repay, and as to $19,000 of the payment, such restoration has not been offered and cannot be made.

5. Irrespective of the agreement, the $65,000 in fact was paid by defendant to complainant, and the income of $4,800 therefrom is in fact support and maintenance of complainant by defendant.

1. On the first ground, defendant must fail. Our Divorce act contains the following provision (which was not adverted to by either counsel) :

“Provided that if any inhabitant of this state shall go into another state, territory or country, in order to obtain a decree.of divorce for a cause which occurred while the parties resided in this state, or for a cause which is not ground for divorce under the laws of this state, a decree so obtained shall be of no force or eifect in this state.” P. L. 1907 p. 1/83 § 33; 2 Comp. Stat. p. 201/2.

The Nevada decree shows that it was granted for the cause of a desertion from October 23d, 1916, to October 26th, 1917 (the date of the Nevada petition), or at most, to November 24th, 1917 (tire date of the decree). Desertion for less than two years is not a cause for divorce in this state. Obviously, therefore, under this provision of the statute, complainant having gone to Nevada for the purpose of obtaining a divorce for a desertion of less than two years, the decree is of no validity in this state.

This provision of the statute has been enforced in Jung v. Jung, 85 N. J. Eq. 372; Lister v. Lister, 86 N. J. Eq. 30; Thompson v. Thompson, 89 N. J. Eq. 70.

Furthermore, the same result must needs be reached irrespective of that legislation. From the statements in the replication, it is clear that although complainant lived in Nevada for six months prior to instituting her suit, the animus manendi was lacking, and the decree will be denied validity here. It was obtained by fraud (Magowan v. Magowan, 57 N. J. Eq. 322; Jung v. Jung, supra), and irrespective of the fraud, the Nevada court was without jurisdiction. Lister v. Lister, supra; Thompson v. Thompson, supra.

2. Complainant next argues that even if the degree be invalid, complainant is estopped from setting up its invalidity, since it was she herself who instituted the proceedings and obtained the decree.-

In the ordinary case (i. e., a suit between parties having no such relationship with each other as husband and wife, or parent and child), doubtless such estoppel would arise against the complainant. Certainly a request by a party who had fraudulently obtained a judgment or decree to set aside such decree or judgment or treat the same as invalid because fraudulently obtained, would scarcely commend itself to a court of equity. And such estoppel would be strengthened, if that were necessary, by the fact that the other party, against whom the fraudulent judgment or decree had been obtained, or some third party, relying upon the validity of that judgment had altered his position. In the present case the husband subsequently remarried.

But, I take it that there may be circumstances which would avoid the arising of any such estoppel. If, in the instant case, the fraudulent procurement of the decree by the wife had been caused by actual and undoubted duress and compulsion — if, for instance, she had been compelled thereto by a pistol at her head and under the threat and fear of immediate death — I cannot imagine that this court would hold her estopped from setting up the invalidity of the decree. In such a case^ if an estoppel exists against her, an estoppel would arise against such estoppel.

In the ease with which we are dealing, however, it seems to me that no estoppel can exist against the wife’s setting up the invadidity of the foreign decree.

The situation is not one where a decree, otherwise valid, has been fraudulently obtained. Such a situation would exist, if the divorce decree had been granted by this court, through the collusion of the parties. Even in such a case, although it has been held in some jurisdictions that such a decree may not be attacked even directly by either of the parties, it is by no means clear that such decision is or should be based upon any doctrine of estoppel; and furthermore, considerations of public policy (for the same reasons about to be adverted to), would seem to dictate that no such estoppel should be held to exist. See 14 Cyc. 718, note 46. Certainly if one of the guilty parties quickly repented and made application to repair the wrong-doing, there cannot well be imagined any good reason against permitting it to be done. Yet that could not be done if an estoppel existed.

The foreign decree, as has been pointed out, is not merely voidable, but void, for lack of jurisdiction; and is one which our statute says “shall be of no force or effect in this State.” Bearing in mind the fundamental principle that the matrimonial status is a matter of concern not merely to the two spouses but equally so to the state, it seems to me that the legislature has laid down, by the statutory provisions aforesaid, a definite pronouncement of the public policy of this state, the result of which must be to preclude the consideration of questions as to whether or not one of the parties is estopped from setting up its void character.

Logically, of course, where an estoppel is claimed to exist against an assertion set np by one of the parties, the determination of the issue as to whether or not such party is estopped from asserting his contention, precedes any inquiry into the issue upon the contention itself; and if the estoppel be found to exist, the inquiry into the truth or falsity of the contention against which the estoppel exists, is never reached. But in this case, the answer to the claim of estoppel is not that the estoppel does not ecrist, but that it cannot exist.

The contract of marriage is one which may not be dissolved or abrogated by the will of the parties — the state must consent and act to accomplish such dissolution. If the husband and wife signed an agreement purporting to terminate the marriage relation, it would of course be void, and neither party would be hoard to claim that the other party was estopped from asserting its invalidity. The question of whether or not the acts of the litigant had or had not been such as to estop him from asserting the invalidity of the “agreement,” whether or not the alleged estoppel did exist, would be precluded from consideration by the answer, and the fact, that it could not exist.

So, too, if instead of signing a mutual agreement of dissolution of the marriage, the parties had gone to the minister who married them and procured him to sign a certificate purporting to divorce them. Wherein is there any difference between the last hypothesis and what the parties in this case actually did? They went to a Nevada court and procured from it what purports to be a decree of divorce, the Nevada court, under the circumstances, having no more jurisdiction, power or authority in the matter than the minister aforesaid would have had, and its decree being of no more -value or validity than the minister’s “certificate” in the supposititious case.

Is it not clear, therefore, that there cannot be any estoppel against the contention of complainant that the Nevada decree is, as the legislature has said, “of no force or effect in this state?” To hold otherwise, would obviously be to hold that spouses, residents of this state, may do in this way, that which they are not and cannot be permitted to do, namely, divorce themselves without the consent and act of this state, through its sole constituted agent in that behalf, the court of chancery.

The authorities on the question are few, and in conflict. 2 Bish. M. D. & S. § 187, says:

“'There cannot be a divorce jurisdiction by consent. And the principle upon which this proposition proceeds would seem to exclude estoppel as either giving or taking away jurisdiction. The question has not been much considered by the courts; still we have some intimations, not all of which are quite beyond question, such as that a plaintiff who has accepted the benefit of a divorce decree cannot deny the authority of the court by which it was rendered (citing cases). On the other hand, it has been held that one who has obtained such decree is not estopped to deny its validity (citing cases).”

The view that no such estoppel exists is supported by Holmes v. Holmes, 4 Lans. (N. Y.), 388, and Smith v. Smith, 13 Gray (Mass.) 209. Both of these cases are suits for divorce brought by the party who had previously procured a divorce decree in a foreign state, which decree was void for lack of jurisdiction. Both were brought within a few years after the foreign suits, and both are decided on demurrer — so that the issue was squarely presented, and devoid of conflicting or confusing elements of evidence. Both deny the existence of estoppel and decide that the complainants are entitled to the decrees of divorce then presently sought. The reasoning by which the result is reached is along lines similar to that hereinbefore pointed out, and seems to me to be sound.

See also Todd v. Kerr, 42 Barb. (N. Y.) 317; and Moe v. Moe (N. Y. Sup. Ct.), 2 Thomp. & C. 647.

See also Perry v. Meddowcroft, 10 Beav. 132, where it is conceded that a child bastardized by a decree of nullification of his parents’ marriage, is not estopped from attacking that decree collaterally, on the ground of fraud and collusion. If there were an estoppel, it would operate against those claiming under the original parties as well as the parties themselves.

As to the contrary view, that an estoppel does exist:

In 14 Cyc. 822, it is said: “A party who has obtained a foreign divorce cannot thereafter be heard to impeach the decree or deny its validity,” citing a few cases.

I have examined a very great number of cases cited in the books as purporting to be authority for that doctrine. Aside from Ellis v. White, 61 Iowa 644, I do not recall a single one which upon examination could fairly be considered'as squarely upholding the principle (and even in Ellis v. White there did exist the additional facts of long delay and acceptance of alimony) . They will all be found to have been decided, either in express language, or in actual fact, upon and because of additional circumstances, such as long delay, acceptance of benefits such as alimony or remarriage, remarriage of the other spouse (with or without the birth of children by the second marriage), the motive of the complainant in the new suit, and the like, and in many of them it will be found that the decree attacked was voidable and not void.

To attempt to cite them-all would be a work of supererogation, if indeed possible. Among them may be mentioned Elliott v. Wohlfrom, 55 Cal. 384; Richardson’s Estate, 132 Pa. St. 292; Loud v. Loud, 129 Mass 14 (rested on “connivance”): Re Morrison, 52 Hun (N. Y.) 102; Re Swales, 60 N. Y. App. Div. 599; affirmed, 172 N. Y. 651; Starbuck v. Starbuck, 173 N. Y. 503; Holmes v. Holmes (N. Y.), 8 Abb. Pr. N. S. 1 (reversed on appeal; see S. C., supra); Karren v. Karren, 25 Utah 87; Palmer v. Palmer, 1 Swab. & T. 551; Crabill v. Crabill, 22 Ore. 588; Lacey v. Lacey, 77 N. Y. Supp. 235; Miltimore v. Miltimore, 40 Pa. 151; Asbury v. Powers (Ky.), 65 S. W. Rep. 605; Kirrigan v. Kirrigan, 15 N. J. Eq. 146; Nichols v. Nichols, 25 N. J. Eq. 60.

The last named two cases, being decisions of this court, may well be referred to specially. The Kirrigan suit was by the wife for 'divorce; a prior divorce had been obtained by the husband in a foreign state, in an action in which she had appeared; she had accepted alimony under the foreign decree. The decision (which was on cross motions for alimony and discharge of ne exeat) is rested on both facts—

“The wife having appeared to the suit and having accepted the amount awarded to her by the decree for alimony, will not be permitted to impugn the decree on the ground that it was fraudulently obtained.”

And furthermore, it is added:

“Even if the decree might be legally assailed upon tins ground, it "must be presumed to be valid until the fraud is clearly established in evidence.”

In the Nichols Case the decision was not that the foreign decree though void was protected by estoppel, but on the contrary it .expressly holds the foreign decree valid though collusive. Though the correctness of the decision as to°the validity of the foreign decree may now be doubted (see Watkinson v. Watkinson, 67 N. J. Eq. 142, at p. 158), that cannot turn the decision into one upholding estoppel.

In Torston v. Torston, 32 N. J. Eq. 495, the validity of the foreign decree as to jurisdiction was not attacked, and the opinion so points out.

On the other hand, Watkinson v. Watkinson, supra, is authority in the other direction. It is there said (at p. 156) :

“It is difficult to perceive how a decree for divorce which is absolutely void by reason of the want of jurisdiction of the person can be validated by any action or non-action of the party defendant, any more than can a marriage within the prohibited degrees. To hold that a defendant in such a case can validate a void decree, is to permit parties to procure a divorce by agreement between them, which is contrary to first principles governing this subject.
“It is perhaps possible that a ¡female defendant against whom a void decree of the character just mentioned stands of record may be debarred by her conduct from having awarded to her affirmative relief against her husband, based on the fact that the decree is void; Rut, granting that her conduct may disentitle her to affirmative equitable relief or remedy, it cannot validate the decree.”

It is true that Yice-Clianeellor Pitney was there dealing with a question of acquiescence by an innocent wife who had not participated in obtaining the void decree, instead of a collusion in obtaining such decree, but the reasoning is equally applicable. It is also true that the decision in this case was overruled (Watkinson v. Watkinson, 68 N. J. Eq. 632), but not on this point.

The question, then, being open in this state, I conclude that since the decree without jurisdiction is absolutely void, and, •therefore, open to attack by third parties and in collateral proceedings (Carron v. Martin, 26 N. J. Law 594; 2 Bish. § 1545), there can be no estoppel against its attack by the original parties quoad, hoc. See, also, Trenton and Mercer County Traction Co. v. Ewing, 90 N. J. Eq. 560, where the court of errors and appeals holds that where a municipality is given power to do an act by "ordinance, and not otherwise,” it cannot be permitted to urge an estoppel against the municipality’s proof that no such ordinance was passed, since to permit such an estoppel "would nullify the statutory prohibition.” So^ in the case at bar, the admission of an estoppel would nullify the statutory prohibition of the Divorce act.

It by no means follows, however, that a party who has obtained such a void decree will be granted relief in this court as though he or she had been guilty of no misconduct in regard thereto.

One of the most familiar maxims of equity is, that he who comes into equity must come with clean hands. The principle which is embodied in this maxim is rather broader than that statement of it. It is not merely that a court of equity will neither assist one in tire furtherance of, nor relieve him from the consequences of, an alleged act or scheme. It will not grant relief in assistance of a complainant in an attempt which it deems unconscionable. And the conduct which makes the prayer for relief unconscionable need not have been directed toward the other party to the suit — it may have been toward third parties or the public. A frequent illustration is found in the case of a grantor in fraud of creditors who is refused relief in a suit to recover back the property from the fraudulent grantee. So, also, the principles of laches, acquiescence, guasi-estoppels from changed circumstances, and the like, are or may be involved.

It is upon dhe.se grounds that the results in what may be called the "estoppel cases,” cited supra, were actually reached and may be sustained.

It is furthermore obvious that fraud or duress upon the party fraudulently obtaining the void decree is a very vital circumstance, and, as I have hereinbefore indicated, I am clearly of the opinion that clear fraud or clear*duress upon the party fraudulently obtaining the void decree of divorce, by the other party, would, if no other circumstances appeared as equitable factors in the case, be a sufficient excuse to enable this court to grant the relief which might otherwise have been denied because of the fraudulent conduct in the obtaining of the foreign decree.

Holt v. Holt, 23 Okla. 639, and Lake v. Lake, 108 N. Y. Supp. 964, are both cases where the divorce suit is brought by the wife, and the decree obtained by fraud or collusion, the acts of the wife being caused by the fraud or' duress of the husband, and the wife is held excused and not denied relief. Galloway v. Galloway, 125 Md. 511; O'Rourke v. Lawrence, 132 La. 710, and Butler v. Butler, 34 Okla. 392, are cases where the same result is reached under circumstances similar except that the wife instead of being the nominal instigator of the divorce suit was a defendant participating in the obtaining of the decree. I cannot see that this difference in anywise affects the principle. Tausick v. Tausick, 52 Wash. 391; Robinson v. Robinson, 77 Wash. 663; Uecker v. Thiedt, 133 Wis. 148; 137 Wis. 634; Routledge v. Palterson, 146 Wis. 226; Re Brigham (or Brigham v. Dillaway), 176 Mass, 223, and Re Ellis, 55 Minn. 401, are all cases where the principle is recognized, although the wife is denied relief because it is found that the alleged fraud or duress of the husband did not in fact exist, or laches or other equitable bars to the wife’s relief did exist. (The last-named ease is cited as denying that fraud or duress can be sufficient excuse, and the head-note justifies the citation, but the opinion itself does not go that far. It expressly liases its decision on this aspect of the case upon the fact that it was a collateral proceeding and the facts that the wife had accepted alimony in lump sum, and had delayed for eight years, the husband meanwhile having remarried and finally died, and the wife’s object now being to get his property as his widow.) In some of the cases cited the divorce was by a court of a foreign state, in others by the same court or a court of the same state as that where the new suit is brought. I cannot see that this difference is material, in regard to the principle under discussion.

I have been able to find no case in this state on the question of whether fraud or duress by the husband causing the wife to procure or participate in obtaining a void or voidable divorce by collusion or fraud upon the court is sufficient excuse to prevent the wife from being denied relief against such decree (though there is, perhaps, an intimation that it would be a sufficient excuse, in the language at the foot of page 64, in Nichols v. Nichols, 25 N. J. Eq. 60), but I have no hesitation in holding that it will be, in the absence of other circumstances.

While it may well be that in the absence of such fraud or duress, either colluding party should be denied relief as being in pari delicto (and even there, as I have intimated, if one of the parties, honestly repentant and for the purpose of repairing his wrong, without delay seeks to have the decree annulled, I am by no means sure that such application should be denied), yet it is clear that where such fraud or duress exists the parties are not in pari delicto; and that doctrine is quite strictly applied in this court. See Pitney v. Bolton, 45 N. J. Eq. 639 (at p. 643); Buttlar v. Buttlar, 67 N. J. Eq. 136 (at p. 141). Cf. also Buttlar v. Buttlar, 57 N. J. Eq. 645; holding that, although a separation agreement will not be enforced as to the separation, it being against public policy, yet where as a paid of such agreement the wife conveys property to the husband, and husband covenants to make payments for her support, relief will not be denied her when she sues in equity for such payments. And even more significant is the opinion in Power v. Power, 66 N. J. Eq. 320, where the court of errors and appeals, reversing the decision below, holds that where a husband has deserted his wife against her will, giving her little, if any, support for herself and her children, an agreement of separation (prior to the expiration of the two years) forced upon the wife by the husband’s conduct and his threats for the future, did not preclude her from a decree for divorce for the cause of his desertion.

The true rule, then, would seem to be that where a suitor comes into equity and asks for relief, notwithstanding a foreign decree of divorce which if valid would be a bar to his or hex suit, which decree is void for lack of jurisdiction, but which was obtained by the present complainant, equity will examine into all the facts and will accord or refuse its aid upon general equitable principles, according to whether or not it deems it conscionable so to do:

Among the facts and circumstances which axe or may be material factors in such a controversy are whether the divorce decree is void or voidable, whether it was obtained by the présent complainant, or was participated in by him, whether it was obtained with or without collusion or fraud upon the court or fraud or duress upon the adverse ¡tarty, whether the other spouse has since died, or married again, whether there are children bjr such second marriage, whether the complainant has “accepted the benefits” of the divorce, such as alimony or by marrying again, whether' or not the other spouse participated in the divorce, or acquiesced, whether complainant has been guilty of laches or undue delay, what the nature of the new suit is and the motive or object of complainant in bringing it; whether the complainant is an original party to the divorce action, or a child, or heir or representative, and the like.

In the present case we have the facts of the void decree of the complainant, the wife, having apparently instituted the foreign action and obtained the decree by fraud upon the foreign court, of her accepting “benefits” under the decree, by the lump: sum payment of $65,000 in lieu of alimony, the remarriage of the husband, within a few months after the decree, the delay of the wife for over a year from the decree (October 26th, 1917, to February 13th, 1919) in filing her bill, the object of her suit being support and maintenance from her husband, the loss of a considerable portion óf the $65,000 by unfortunate investment, and, finally, the conduct of the husband alleged to constitute or amount to fraud and duress upon the wife, causing her conduct in the matter.

The latter circumstance, it seems to me, is the most important factor in the matter and'may be first considered. As was said earlier in this opinion, if the wife’s conduct had been caused by undoubted fraud or undoubted duress upon her by the husband, this phase of the case would present no difficulty. The case made out by the' wife, however, is not as strong as that, and there is added difficulty by reason of the imperfect condition of the replication as to clarity and definiteness of its allegations. Those allegations do, however, show that complainant did not obtain the fraudulent decree of her own initiative, nor was it a ease where both parties colluded in that behalf for the carrying out of their mutual desires and purposes. They show that the project was that of the husband, for his own benefit, so that (unknown to her) he might be free to marly the woman with' whom he was infatuated and whom he did, subsequently; marry ;■ that she herself was earnestly opposed to any such course — desired no divorce, but only that her husband should return to her and perform his obligations as a husband and father; that she was influenced and induced 'to act as he desired in the'matter, by his threats that unless she did so he would' continue to lea,ve her destitute and without support (he had already-deserted her and left her without support, for a period of some six' months), and his promises that if she acquiesced in his plans he would adequately provide for her, and his arguments convincing her that her conduct in bringing such suit would not be wrong either legally or morally, and by the further arguments and persuasions to the same effect from other persons (her son-in-law and a friend) whom she believed to'be concerned only for her welfare but who in fact were the agents of the husband.

The argument of persuasion would not ordinarily have much weight standing alone. It appears, however, that added to the persuasion of the husband was the persuasion of her friend and companion, and of her son-in-law, upon both of whom she relied as being concerned for her interests, when,'in fact, unknown to her, they were the agents of the husband. And stronger still is the compulsion of her husband’s abandonment and threats and her own necessities created by him. From her entire recital (which must, of course, upon this motion be considered as true) it is clear that the divorce proceedings,' although nominally instituted by her, were in fact not her act but his — that she acted merely as his agent in the whole scheme.

The case made out is, perhaps, pretty close to the line, and in a case between parties' other than husband and wife (or those analogously circumstanced)) it is doubtful that a case of fraud or duress would be made out. ■ But the wife, as the so-called “weaker vessel,” occupies a position different from that of the husband, upon whom she is dependent, and intendments arc frequently made in her favor where they would not be in favor of the man; this is true in equity as well as at law. Torts committed by her in her husband’s presence are deemed his, not hers; in inchoate desertions he is called upon to make advances to her, but not vice versa,; in suits for divorce, that which would be laches in him is not necessarily so in her; agreements between them are enforced only so far as they are fair and just, and the instances might be multiplied.

And, so, I am of the opinion that the allegations of the wife, in the present case, standing without denial, excuse or explanation by the husband, do malee out a case of fraud and duress or conduct in the nature thereof sufficient to excuse the wife’s conduct in obtaining the divorce.

As to the other elements which are proper to be considered as factors in the equitable situation:

(a) The acceptance of benefits wider the decree by the wife— in this case her acceptance of the lump sum in lieu of alimony. Tf, as has been shown, the divorce proceedings were, by reason of his fraud a.nd duress, really the husband’s act and not the wife’s, then the situation in equity is essentially the same as if he had fraudulently procured the divorce against the wife without her participation or knowledge. And, in such a case; it is clear that her acceptance of “alimony” would be no bar, ipso facto, to a suit by her for maintenance. For would the result lie different if the alimomr be considered from the standpoint of the contract between the parties concurrent with the divorce decree (although, of course, the contract and the acceptance of the money are important to be considered as evidence in the determination of whether there was in fact fraud or duress). Cf. Lister v. Lister, 86 N. J. Eq. 30 (at p. 48); Buttlar v. Buttlar, supra; Power v. Power, supra; Kempson v. Kempson, 61 N. J. Eq. 303 (at p. 328).

(b) The purpose of the present suit — in this case, to get support and maintenance. The same reasoning, as in the preceding paragraph, must lead to the conclusion that under the same circumstances there is nothing in this fact itself which should lead to a denial of relief to complainant. Kirrigan v. Kirrigan, 15 N. J. Eq. 146; Nichols v. Nichols, 25 N. J. Eq. 69, and Yorston v. Yorston, 32 N. J. Eq. 495, are cited by some authorities as supporting the doctrine that relief will not be granted where the object of the second suit is alimony. They clearly do not so hold; it is the bad faith of bringing a suit for divorce when the real purpose was alimony which, is there pointed out — and in each of them that is not the sole ground of decision — it is coupled with acceptance' of benefits, ladies, remarriage, and the like.

(c) Remarriage of the husband. Neither Nichols v. Nichols, supra, or Yorston v. Yorston, supra, hold that this is dispositive on such an application. In both those cases the result is rested on the concurrence of laches with the remarriage. In the present ease, it does not. appear that the wife knew of the contemplated marriage — and it occurred but a few months after the decree. It does not appear that the second wife was innocent or ignorant. The mere fact of there having been a subsequent marriage, especially when it took place shortly after the foreign divorce, does not impress me as sufficient to raise a countervailing equity. As is pointed out in Watkinson v. Watkinson, 67 N. J. Eq. 142 (at p. 157), the second spouse ought to be held to inquiry in the case of a decree cf a state foreign to the usual residence of the parties. See, also, Clayton v. Clayton, 59 N. J. Eq. 310 (at p. 316); Kempson v. Kempson, 61 N. J. Eq. 303 (at p. 330), and 9 Rul. C. L. § 262.

(d) Laches. This, of course, if it existed might well be a sufficient ground for refusing complainant relief. But, in the present case, it does not appear that it exists. The mere facts of there being a period of fifteen and one-half months between the date of the foreign decree and the filing of the present bill cannot be held to be laches per se, even if nothing else appeared, and complainant does set up matter in excuse of even- that delay.

(e) Restoration of status quo ante. Refusal of a complainant to do equity toward defendant to tire full extent possible would probably lead to a refusal of this court to lend its assistance to complainant. The case, however, shows no such, refusal. Complainant tenders back to defendant all that she has left of the amount paid her in accordance with the contract; that which she does not oiler to return she says she cannot because of its loss in unfortunate investment. I do not see how he can complain of such a loss; it is one of the results of his own wrongdoing. The wife is entitled to support from-the husband, and to the exercise of his judgment in the providing of that support. The probable infirmity of the wife, after jrears of dependence upon him, in exercising sound judgment in dealing with business affairs, must have been known to him, and he took the risk of just such loss when he put his wrongful scheme into execution. See Holt v. Holt, 23 Okla. 639; Cheuvront v. Cheuvront, 54 W. Va. 171; Barr v. Packard Company, 172 Mich. 299 (a case of repudiation of infants’ contract). And it is clearly within the power of this court to make an equitable adjustment as to the moneys received by the wife, as was done in Lister v. Lister, 86 N. J. Eq. 30 (at p. 49).

3. Defendant’s third contention — that the contract between the parties is binding upon complainant irrespective of the validity of the divorce needs but little comment. For one thing, being a contract made as a part of, and in furtherance of a scheme to obtain a fraudulent or collusive divorce, it would not be enforced as against public policy. Secondly, it being obtained by the same fraud, duress or oppression as the divorce itself, it cannot stand. Thirdly, being a contract between husband and wife, it could be binding in any event only to the extent that it is just and fair. Lister v. Lister, 86 N. J. Eq. 30 (at p. 48); Demarest v. Terhune, 62 N. J. Eq. 663 (at p. 667); Pom. Eq. Jur. § 1121; Calame v. Calame, 25 N. J. Eq. 548; 1 Rul. C. L. § 73; Boehm v. Boehm, 88 N. J. Eq. 74; Rennie v. Rennie, 85 N. J. Eq. 1; Halstead v. Halstead, 74 N. J. Eq. 596.

4. The effect of the failure to restore the entire $65,000 has been already dealt with under heading 2 of this opinion. What I have said under heading 3 is also pertinent in this connection.

5. Support in fact. Defendant’s last contention, on the merits, is, that there is shown, in fact, to have been no refusal or failure to support, since the income from the fund he had given his wife was in fact support. I was considerably impressed with the force of this contention, on the oral argument, for, while it is true that the .support furnished must be suitable and proper under the circumstances (O’Brien v. O’Brien, 49 N. J. Eq. 436), yet I was inclined, to think that the admitted fact that the husband had given her a fund for her support from wlrich she was deriving $4,800 annual income (or even $3,200, assuming that the income was proportionately reduced after the loss of the $19,000, although she does not say that the income has been reduced below the $4,800), was sufficient, unless the wife set up special circumstances to show that that sum was not suitable and proper under all the conditions. Upon reflection, however, I am of a different opinion. As is shown in the O’Brien Case, the words of the statute, “refuse or neglect to maintain and provide,” mean to “maintain and provide in a suitable and proper manner.” I think we must accord to these words in the complainant’s bill the same force and effect as in the statute.' And I am not able to sa}r that the income mentioned is necessarily suitable and proper support, where the husband is. possessed of a large amount of real and personal property, and still has “an income of at least $20,000 per annum.” What is suitable and proper can only be determined upon evidence as to all the conditions and circumstances of the parties. In, 1 Rul. C. L. § 77, it is said: “The amount of the allowance ordinarily varies from

one-half to one-third, or even less.” In practice in this state it, perhaps, averages one-third. In the O’Brien Case, supra, it would seem to have amounted roughly to about one-fourth. In the present case the income provided for the wife by the gift is obviously less than one-fifth.

There is further another consideration. Complainant is seeking to set aside the whole of the fraudulent scheme, divorce, contract, gift and all and tenders the return of all that she has of what she received. Defendant, doubtless, could never have recovered this money back from the wife by suit of his own, but, morally, she is obligated to return it to him, and I think she is entitled to do so in her effort to wipe out the entire transaction. The result would be to put the parties back where they were before the trip to Nevada, and leave the husband with the unfulfilled duty of supporting his wife.

It is against the policy oí the state and beyond the power of this court to decree a lump sum payment for alimony. Calame v. Calame, 25 N. J. Eq. 548 (except where, as in that case, the defendant had offered, and complainant accepted, such sum in gross and it was decreed in performance of the agreement). Boehm v. Boehm, 88 N. J. Eq. 74. Whether in a case free from fraud and duress, where the wife had accepted and received from the husband, by open and fair agreement, a suitable sum in gross, she would be permitted afterwards to rescind and obtain weekly or monthly payments, I am not called upon to decide. But where, as in this ease, the soundness of the public policy against such settlements in gross having been demonstrated by the results of the wife’s administration of the fund, and the giving and acceptance of the fund being grounded in fraud and duress, I think she should certainly be permitted to refund the sum and ask for support .in the manner favored by public policy.

The question of domicile raised by the answer (if it be material, which I have not considered) is probably sufficiently traversed by the general denial in the replication. It is, of course, further obvious that the divorce being void, the domicile of the wife is that of the husband — this state being his domicile and the matrimonial domicile.

The replication is, however, defective in form, and objection is also made on that ground. Chancery rules 44, 46, 53, 56 and 57 are clearly violated. The motion to strike out will therefore be granted, with leave to amend within ten days. '


author: Fielder, V. C.

text:
    Anna Pinkinson v. Jacob Pinkinson.
    [Decided January 22d, 1920.]
    Where a husband, though living in -the same house with his wife, refused to converse with her, or go anywhere with her, and also refused to have sexual intercourse with her, and excluded her from his bed, he has abandoned her and separated himself from her within the meaning of the statute concerning divorce.
    On bill for maintenance.

      Mr. Frank F. Bradner, for the complainant.

      Mr. Joseph Kraemer, for the defendant.
   Fielder, V. C.

The parties were married June 6th, 1909, and one child, now eight years of age, is the fruit of the marriage. Differences and disagreements arose between the parties within one or two years, resulting in several separations, the first of which occurred in or about 1915, and it is clear that the termination of each separation was at the complainant’s request and while they resumed living together it was not in harmony and the defendant says he ceased to care for his wife after their first separation. When they resumed living together for the last time, which was about May 1st, 1918, it is apparent that their differences had in no way abated. Each puts the blame for the disagreements on the other, but it is not necessary to determine where the truth lies. Although they lived together and they occupied the same bed up to three weeks prior to the filing of the bill of complaint, their marital relations had ceased long prior to that time, the defendant fixing the period as one year and they agree that they had ceased holding conversation with each other for three months prior to their separation, and the complainant claims that her husband was not providing her with adequate support. Three weeks prior to filing the bill, the complainant says she could no longer stand this manner of living and she left his bed without objection on his part, occupied another room in the same house and went to see a lawyer with reference to compelling her husband to support her. Suit was commenced and they remained under the same roof for a few weeks thereafter, when she left because her husband had been away for ten days without telling her of his intended departure and without leaving any money for the support of herself and her child. When she finally left the house, taking the child with her, he was at home and saw her packing her things preparatory to moving, but did nothing to induce her and the child to stay. It must be presumed that he then knew what charges had been made against him in her suit, and if he felt he was not at fault and was not willing to have her go, but desired to have her stay and live with him as his wife, it was his duty to tell her so. But his attitude toward her since their first separation has been that she is a woman with whom he had no desire to live, in fact, to sum up his testimony on the witness stand, he said he was unhappy with her after the first year of their marriage ; that he does not care for her or to live with her and that he will not take her back or provide a home for her.

In my opinion he abandoned her or separated himself from her within the meaning of the statute, though living in the same house, when he refused to converse with ,her or to go anywhere with her and refused to have sexual intercourse with her and excluded her from his bed. Anshutz v. Anshutz, 16 N. J. Eq. 162; Weigand v. Weigand, 41 N. J. Eq. 202; Margarum v. Margarum, 57 N. J. Eq. 249; Rector v. Rector, 78 N. J. Eq. 386-407.

I also find that although the complainant and defendant were living in the same house when she commenced this suit, he had neglected to properly maintain or provide for her and her child. She had on another occasion during their married life, taken legal means to compel his support, and when she filed this bill of complaint, he was giving her but a few dollars a. week, although he was earning $75 a week and she was working as a saleswoman at $18 per week, to earn money for herself and the child. He resigned his position shortly after this suit was brought and says that he has now no employment. I think this resignation was the result of a thought that it would have a bearing, advantageous to him, on the amount this court would award the complainant, because he says he thinks he can go back to his old position. I believe his earning capacity is $75 per week. The complainant says she is not in good health and that her physician has advised her she should not work, but there is no evidence to corroborate her, except that she limps slightly when she walks, which she attributes to injuries sustained in an accident. I shall award her $24 per week for maintenance and support of herself and child, with costs, of suit and a counsel fee of $100. When the decree is prepared, it should contain a provision that either party shall be at liberty to apply to the court, upon a future change of circumstances of the parties, for a variance or modification of the decree touching the amount of complainant’s maintenance.


text:
    Pauline Turk v. Albert Goldberg et al.
    [Decided February 20th, 1920.]
    Under the Jitney act (P. L. 1916 p. 283) the proceeds of an insurance policy, deposited to answer any liability imposed by law upon the auto bus owner for damages on account of bodily injury or death suffered by any person as a result of an accident occurring by reason of the ownership, maintenance or use of such auto bus upon the public street of the city where' such auto bus is licensed to operate, belong to 'that one of several judgment creditors who first establishes his claim against the owner of the auto bus, and not to all such judgment creditors proportionately.

      On bill, &c. On rule to -show cause.

      Mr. Htlward R. McGlynn, for the complainant.

      Mr. John W. McGeehan, for the defendant Commonwealth Casualty Company et al. >

      Mr. Samuel Hollander, for the defendant Margaret Gaffney.

      Mr. William Harris, for the defendant Rose Schwartz.

      Messrs. Osborns, Cornish & Schech, for the defendant Elizabeth Cooper.

      Mr. John R. Emery, for the defendant Hugh Murphy.

      Mr. John II. Cooper, for the defendant Maud E. Spawn.
   Fielder, V. C.

P. L. 1916 p. 2€S, known as the Jitney act, provides in section 3, that the owner of an auto 1ms shall file with the chief fiscal officer of the city in which the auto bus is licensed and operated, an insurance policy of a company duly licensed to transact business under the laws of this state, in the sum of $5,000, against loss from the liability imposed by law upon the auto bus owner, for damages on account of bodily injury or death suffered by any person or persons as a result of an accident occurring by reason of the ownership, maintenance or use of such auto bus upon the public streets of such city and that such policy shall provide for the payment of any final judgment recovered by any person on account of the ownership, maintenance and use of such auto bus or any fault in respect thereto “and shall be for the use and benefit of every person suffering loss, damage or injury as aforesaid.”

The verified bill of complaint alleges that Albert Goldberg was operating a licensed auto bus and had filed in the proper' office an insurance policy in tire sum of $5,000, conditioned as provided by statute; that while complainant and several other persons were passengers in this bus, she and they received bodily injuries as the result of a collision between the auto bus and an auto truck and that she has brought suit in the supreme court for $10,000 against Goldberg and the owner of the auto truck for the injuries sustained; that Goldberg is insolvent; that several persons injured in this accident have sued Goldberg and the auto truck owner and some of them have recovered judgments which have been paid by the insurance company to the extent of $2,200, leaving a balance of but $2,800 due on the policy; that several other suits are pending against Goldberg for a total of more than $30,000 and that there may be other injured persons having claims on the insurance money; that the insurance policy was issued for the benefit of all persons injured in the accident in question, but that before complainant can recover judgment, the amount of the policy will be exhausted unless this court interferes. She prays that the insurance company may be restrained from making any further payments on the policy and that the plaintiffs in the pending actions against Goldberg may be restrained from proceeding in such actions (except to obtain final judgments therein or to prosecute an appeal) 'and from attempting to collect from the insurance company. She further prays that the insurance company be directed 'to pay the amount of any final judgments hereafter obtained against Goldberg, to the clerk of this court or to a receiver, for equal distribution among all persons injured in said accident and who may obtain judgments. Goldberg, the insurance company and the plaintiffs in the pending suits against Goldberg, were ordered to show cause why they should not be restrained according to the prayer of the bill and why the amount of the policy should not be paid into court or to a receiver and the matter is now before the court on the return of the rule to show cause.

We must look to the statute to find whether there is anything therein which will justify this court in taking charge of the fund for the purpose of marshaling it for the benefit of all persons who may now, or who might at some future time have an interest therein. Gillard v. Manufacturers Casualty Insurance Co., 104 Atl. Rep. 707; affirmed, 107 Atl. Rep. 446, holds that a person who has -recovered judgment against the bus owner for injuries resulting from an accident in the operation of the bus on the public streets, may sue the insurance 'company on the policy and that he is the only one who can sue for the amount of the judgment, his rights being original and primary as against the insurance company by virtue of the statute.

Had the legislature anticipated that the amount of the policy would be insufficient to answer all claims against the bus owner which might grow out of a single accident, or out of several accidents occurring before the policy could be renewed and had it intended that the injured persons should share the policy pro rata, I think it would have expressed that intention definitely. I't said that before an injured person could have recourse to the policy, he must recover final judgment against the bus owner and it would seem to follow that until he has final judgment, he has no lien on the policy. When he has judgment, he has an interest in the asset which the legislature has required the judgment debtor to provide and he has an original right of action against the holder of that asset, and'in case the insurance company refuses io pay on demand, he may proceed to collect by suit and judgment as in other causes of action. Unless the legislature, by the act in question, has expressed an intention to change the law with respect to the collection of judgments' against the assets of a defendant this court cannot direct that the assets of an individual debtor be turned over to a receiver for the benefit of all persons who are suing or may sue the debtor and who may recover judgments against him, on the theory that the first person to recover judgment may gain some advantage over the last. I do not find any such intention expressed in the statute. It merely proposes to give those who-suffer injury through the bus owner, a special fund from which to collect, in case the bus owner is financially unable to respond in 'damages. What the legislature has said in effect, is that the policy shall be for the benefit of every person suffering loss, damage or injury who may establish his claim by judgment against the bus owner and proceed to collect from the insurance company in accordance with the law respecting judgments and executions. Had it intended that the amount of the policy should be shared proportionately by all persons who, within the time fixed by the statute of limitations, might sue and recover judgment against the bus owner, it would have said so, or it would have provided that the policy should be for the benefit of every person injured, to the extent of $5,000 per person. To hold that the policy is for the benefit of all injured persons pro rata, would make it necessary for the insurance company to ascertain, before it could safely pay anyone, how many persons might have claims thereon, whether growing out of one accident or several accidents occurring after the policy was written and what the total amount of judgments which might be presented would be.

The situation seems to me to be similar to that which arises under the Mechanics Lien act, in the case of claimants on stop notices. Every person injured -by a licensed auto bus may be said to have an inchoate lien upon the insurance policy,which inclioalte right can ripen into an actual lien only by the recovery of final judgment against the bus owner and service of notice of the judgment on the insurance company. In the absence of any statutory provision to the contrary, such liens have priority in the order in which they mature and are presented to the insurance company.

The rule to show cause will be discharged.


author: Walker, Ordinary.

text:
    Edwin Kobert Walker, Ordinary.
    Eugene Stevenson, Edmund B. Leaking, Vivian M. Lewis, John H. Backes, John Grieein, John E. Poster, Malcolm G. Buchanan and James E. Eielder, Vice-Ordinaries. .
    In the matter of the application for probate of the last will and testament of Catherine Morrissey, deceased.
    [Decided May 13th, 1919.]
    1. The filing of a caveat with a surrogate does not clothe the orphans court of the county with any jurisdiction.
    2. Filing a petition for the appointment of an administrator pendente lite with the orphans court when no will has been lodged for probate with the surrogate, or when one has been lodged and no citations have been issued and before the orphans court has taken action in the matter of probate, is a nullity.

      3. Application to certify questions involved in a controversy over the probate of a will into ithe circuit court for trial by jury, is discretionary with the orphans court and not mandatory upon that tribunal.
    4. A caveat was filed with the surrogate protesting against the probate of any alleged will of C. M., deceased, until, &c. Then a petition for the appointment of an administrator pendente lile for the estate was filed in the orphans court. Later, a paper-writing purporting to be the last will and testament- of decedent was lodged for probate in the prerogative court and an order made for proof thereof in solemn form. Application was then made to set aside the order for proof in the prerogative court on the ground that the orphans -court had acquired jurisdiction.— Held, that it had not, and that, the prerogative court having obtained jurisdiction, the cause should proceed in that tribunal.
    On application to set aside an order for proof of will in solemn form.

      Mr. Herbert Clark Gilson, for the applicants.

      Mr. Robert II. McAdams, fro se, contra.

   Walker, Ordinary.

On April 8th, 1919, Eobert H. McAdams, Esq., filed a petition in this court setting forth that Catherine Morrissey, late of the county of Union, departed this life March 22d, 1919, leaving a last will and testament, in which he was named as executor; that the decedent left her surviving certain heirs-at-law and next of kin, naming them; that petitioner desired that proof of the will and testament should be taken in solemn form, and prayed that a date might be fixed therefor, and an order made prescribing the notice- to be given to all parties concerned. Upon reading and filing the petition an order was made in conformity with its praj’er. And,' now, pending the time of the running of the notice, application is made to vacate and set aside the order and to dismiss the petition for probate. This application is made on behalf of certain of the heirs-at-law and next of kin of the decedent, who, on- March 31st, 1919, filed a caveat with the surrogate of Union county, protesting against the probate of any alleged will of Catherine- Morrissey, deceased, until, &e. These persons set up that fact, and also the further fact, that on the next day, April 1st, 1919, they- filed in the Union county orphans court a petition for the appointment of an administrator pendente lite in the matter, the gravamen of -which seems to be that because “there is very bitter feeling between several of the next'of kin of the decedent * * * it is necessary and for the interest of all parties that the rents of the real estate and the income from the personal property should be collected promptly, and that the said property should be preserved and cared for, and that proceeds of any bonds and mortgages maturing should be collected and reinvested;” wherefore, the petitioners prayed “that pending the contest of the said will” (no will having been lodged for probate with the surrogate, and the petition not suggesting that there was any will in existence), a certain trust company might be appointed temporary administrator, &c.

The claim of the petitioners is that the filing of the caveat with the surrogate, and of the petition for the appointment of an administrator pendente lite with the orphans court of Union county, has vested that court with jurisdiction to- take proofs and adjudicate concerning any last will and testament left by Catherine Morrissey, deceased, and that the prerogative court had no juris diction to entertain the application for probate petitioned for by the administrator named in her will. This proposition is without any support in the law.

The Orphans Court act (Comp. Stat. p. 3817 § 15) provides that probate of any will shall not be granted by the" ordinary until proof be made that no caveat against proof of such will has been filed in the office of the surrogate of th’e county where the testator resided at the time of death, or that notice has been given to all persons concerned, of the application to the ordinary for such probate. Rule 10 of the prerogative court is but a copy of this statutory provision. Therefore, by the plain words of the statute and rule, probate may be granted by the ordinary upon notice given to all persons concerned in the application, even if a caveat be filed, and the caveat may, where notice is given, be ignored. In fact, the office of a caveat is to protest against admitting to probate any paper purporting to be the last will and testament of a decedent until examination and decree thereon by the orphans court. If no will is lodged with the surrogate there is nothing upon which the caveat can act. The caveat confers no jurisdiction, rather the reverse.

In Fisher’s Case, 49 N. J. Eq. 517, a caveat against the probate of a paper purporting to be the will of a decedent was filed with the surrogate of the proper county, and afterwards application was made to that surrogate to admit to probate the paper against which the caveat was lodged, but, before the surrogate had issued citations for the appearance of the interested parties in the orphans court, and before that court had taken action in the matter, the application for probate was withdrawn, and the will was lodged in this court for probate. It was held that the ■withdrawal was a sufficient discontinuance of the proceeding before the surrogate, and that the ordinary would assume jurisdiction upon an application to him for the probate of the will. The case at bar is much stronger against the present petitioners than was the Fisher Gase against the proponent of the will there sought to be proved. In that case the will had actually been lodged with the surrogate with an application for its admission to probate, but no citation having been issued, the orphans court obtained no jurisdiction. Here, no will has been lodged with the surrogate of Union, and, therefore, no citation could issue. Hence, no jurisdiction obtained in the orphans court.

In Davenport v. Davenport, 68 N. J. Eq. 611, it is held that an administrator pendente lite may be appointed when the appointment of an executor or a general administrator is delayed for any reason or the validity of a will is contested. How, a perusal of the facts in the ease at bar conclusively demonstrates that, at least, up' to the present, there has been no delay in the appointment of an executor nor any contest of the will precipitated, although the latter, it is apparent, is likely to take place. But, whether so or not, as the Union county orphans court has not acquired jurisdiction over any last will and testament of Catherine Morrissey, deceased, or any paper-writing purporting to be such, a petition for administration pendente Hie does not lie. Those Latin words mean: Pending a suit; during the actual progress of the suit; during litigation. Therefore, as there was no suit or litigation pending in the orphans court concerning the will in question at the time this petition for the appointment of an administrator pendente lite was filed, it was, and is, a mere nullity.

The last reason assigned by the applicants for the vacation of the order for probate in solemn form in this court is, that the caveators may desire to have the case certified to the circuit court for trial by jury under Comp. Stat, p. 3818 § 18, and if the cause is allowed to proceed in this court on the petition of the executor, it would bar “the right” to a trial by jury. There is no such right.

In Brothers v. Pickel, 31 N. J. Eq. 647, it was held that an application to certify the questions involved in a controversy over the probate of a will into the circuit court for trial by jury was merely discretionary with the orphans court, and not mandatory upon that tribunal. See, also, Pritchard v. Howell, 87 N. J. Req. 252, 254. The provision is that the orphans court may, not that it shall, certify the proceeding into' the circuit court. If this matter were pending in the orphans court it could not be foretold that that tribunal would certify the cause into the circuit court, and, if it refused, its refusal could not be reversed on appeal, as it is a matter of discretion. Here, as before remarked, we have no matter pending in the orphans court, so, that no question on this score is really presented to this court for decision.

The application sub judies is without merit and will be overruled, to the end that the cause be proceeded with in this court, where jurisdiction has been obtained.

The respondent is entitled to costs.


author: Leaming, Vice-Ordinary.

text:
    In the matter of the estate of Mary A. Rogers, deceased.
    [Submitted December 29th, 1919.
    Determined January 20th, 1920.]
    1. Where a will gave “all my wedding presents to- Ida; all the money I possess to Ida; my business and real estate to be equally divided between my children,” naming them — Held, that the testatrix died intestate as to notes owned by her at her decease.
    2. Where -the context of a will shows the intent of a testator to attribute to the word “money” a specific meaning, that meaning will be adopted and may comprehend' any class of property so defined by the context.
    3. Since it is ordinarily the purpose of a testator to dispose of his entire estate, there is a presumption of such intent on his pant in the absence of any indication to the contrary.
    On appeal from the Camden county orphans court.

      Mr. John F. Earned, for the appellant.

      Messrs. Carr & Carroll, for the respondents.
   Leaming, Vice-Ordinary.

This appeal relates alone to the determination of what persons are entitled to certain promissory notes owned by testatrix at her decease.

The will of testatrix provided as follows:

“I, Mary A. Rogers, of sound mind, give all my wedding presents to Ida. All the money I possess to Ida. My business and real estate to be equally divided between my children, Ida, John, Lena and Mary. Ida E. Heaton to be executrix.”

The notes are claimed by Ida under the money bequest. The ocher children claim that the notes passed under the bequest of the business of testatrix.

The circumstances disclosed by the evidence from which it is urged that the word “business” referred to the notes are the following: Although testatrix, in fact, owned no business and owned no interest in any business, yet there was a business in the success of which she was vitally interested. It had long been the business of her husband and source of the family support, and had been acquired by her oldest son prior to her husband’s death. As a part of the consideration of the sale of that business from her husband to her son, her husband had received during the remainder of his lifetime a weekly stipend from the son, and after her husband’s death that weekly stipend was to.be paid to her for her life by her son, and was so paid. Upon the success of that business measurably depended the, son’s ability to continue those payments. The notes here in question were for money testatrix had loaned that son, after her husband’s death, and the testimony indicates that the money may have been used by the son in that business. These circumstances, it is urged, indicate that word “business,” as used by testatrix, referred to the notes which, to her mind, represented her interest in the business. That suggestion, it is claimed, is fortified by the structure of the will, since testatrix disposed of four distinct kinds of property, her “wedding presents,” her “money,” her “business,” and her “real estate,” and necessarily knew she had no business in the sense that word is ordinarily understood; that the word referred to something definite in her mind which she intended to give, and force must be given to it'if the meaning intended can he ascertained, since it cannot he said that wedding gifts, money and real estate each represented to her mind a separate and distinct portion of her estate, and that the word “business” had no such significance to her. Erom these circumstances it is urged that standing in the shoes of testatrix with her untrained mind —with a mind untrained in a distinction between owning an interest in a business in which her money, represented by the notes, reposed and which money she expected to be paid to her out of the earnings of that business, and that of being a mere creditor of the real owner of the business — it is apparent that from her viewpoint the language adopted by her was an appropriate and adequate description of and related to the notes representing the money which she had put in the business and which to her mind represented the extent of her interest in the business, even though, in law, the money was due her from her son and not directly from the business. This general view was adopted by. the learned judge of the orphans court.

But is it not reasonably obvious that a conclusion thus reached, which attributes to the word “business” an artificial meaning which in no way belongs to' the word in either its technical, ordinary, colloquial, or even occasional, use, is purely and fatally conjectural, in that it ascertains, at most, that which testatrix, perchance, may have intended, with no adequate assurance that such an intent in fact existed ? Indulging this broad field of conjecture one may well be impressed that in the use of the word “business” testatrix may have in fact referred to1 the business formerly owned by her husband and not to the notes, since she received all of her husband’s property by his will and her son had not fully discharged all of his obligations arising from his acquisition of that business; it would seem quite as natural and probable that testatrix may have conceived that business to have belonged to her under her husband’s will, by reason of the unfulfilled obligations of her son arising from what she may well have regarded as a conditional transfer to him, as to have conceived notes given to her by her son for purely personal loans of money to him as her “business.” Either view, to my mind, is essentially a guess, touching the intention or meaning of testatrix in the use of the well-known word here in question, unsupported bjr satisfactory or adequate evidence of that intent.

The word “money,” standing alone and uncontrolled by the context of a will, refers to the circulating medium and does not embrace promissory notes. This was specifically determined in this state in Beatty’s Executor v. Lalor, 15 N. J. Eq. 108, and appeal’s to be uniformly recognized by all authorities which have been brought to my attention. See Wms. Exrs. *1024; 2 Benj. Wills *769; 1 Schoul. Wills (5th ed.) § 505; 18 Rul. Cas. L. 1270. But where the context of a will clearly discloses that it was the intent of a testator to attribute to the word “money” a specific meaning which is more comprehensive, that meaning will be adopted and may comprehend any class of property so defined by the context. See authorities above cited.

In the will here under consideration the context in no- way enlarges the natural and ordinary significance of the word “money;” if any light can be said to be afforded by the context it appears to be to the contrary effect, since testatrix distinguishes wedding presents, money, business and real estate.

The only element in the case that in the slightest degree suggests the propriety of giving to- the word “money” an enlarged significance is the circumstance that unless the promissory notes were intended by testatrix to pass either as “money” or “business” partial intestacy will result. Since it is ordinarily the purpose of a testator -to dispose of his entire estate there is a presumption of such an intent on his part, in the absence of any indication to the contrary. But a testator may either through design or oversight remain partially intestate, and such cases are not infrequent, and a reasonably extended research has not brought to my attention any authority in which a word or clause of a will which is of plain or well-recognized meaning will be given a different meaning, in the absence of contextual aid, by mere force of a presumption against partial intestacy. See Woodruff v. White, 78 N. J. Eq. 410, 415; Stout v. Cook, 79 N. J. Eq. 573, 576; Leigh v. Savidge, 14 N. J. Eq. 124, 134.

I am impelled to conclude that testatrix died intestate as to the promissory notes here in question, and that the decree of distribution must be modified to that extent.