text:
    Alpheus McCracken v. Thomas B. Harned.
    [Filed December 14th, 1899.]
    1. To a bill in equity, seeking an accounting for specified sums of money and property, a claim for unliquidated damages for services rendered cannot be 'set off.
    2. The fact that an attorney has a lien on money in his hands does not free him from liability to account to his client therefor.
    3. Where complainant is entitled to an accounting, and unliquidated damages are sought to be set off, the practice in this state is to suspend the enforcement of the decree until the defendant has opportunity to establish his set-off at law.
    On bill, answer and proofs.
    This bill is filed by the complainant, praying that an account may be taken of the collection of certain promissory notes of the complainant, the proceeds whereof the complainant alleges came to the hands- of the defendant. The complainant, the owner of the notes, placed them in the hands of Philadelphia attorneys, who collected several of them and- made two separate remittances to the defendant, as general counsel for the complainant. The uncollected notes were also returned to the defendant. The latter paid over to the complainant the first remittance of the proceeds from the collection of the notes, but has retained other moneys since collected, and also has the uncollected notes in his possession.
    The defendant denies that any application has been made to him for the moneys remaining in his possession or for the return of the uncollected notes; denies that he has refused to account, and alleges that he was the general counsel for the complainant, and at his solicitation went with him to the Philadelphia attorneys, to place the notes in their hands for collection. He sets forth in his answer a letter from the Philadelphia attorneys to the complainant, in the nature of a report by them of the promissory notes, their collections and remittances, stating, “We have collected and account for to you the following claims,” here stating the collected claims, the net receipts whereof were forwarded to the defendant for the complainant.
    The defendant also sets forth another letter from the Philadelphia attorneys to the complainant, purporting to account to. him for other collections of the notes owned by the complainant, showing a balance which is put under the item, “Check herewith, $230.24.” The defendant then alleges that the Philadelphia attorneys “ then paid the balance, to wit, $230.24, so due the complainant, to this defendant, and also handed to this defendant, as counsel for said complainant, the uncollected promissory notes.” The defendant then sets up that the complainant is indebted to him for legal services in the sum of $2,500 and that he had retained the $230.24 on account of the services so rendered, and he tenders the return of the uncollected notes.

      Mr. Horace F. Nixon, for the complainant.

      Mr. John F. Harned, for the defendant.
   Grey, V. C.

The admissions of the answer and the proofs show that the defendant received all of the accounting by the Philadelphia attorneys and also the payment of the moneys collected, and the delivery of the uncollected notes, for the complainant, and that he turned over to the latter a portion of the cash received for him, thus acknowledging his liability to account to the complainant for moneys derived from the collection of the notes. There is neither allegation nor proof that the defendant has in fact fully accounted to the complainant for these moneys and notes so by him received. The setting'up of the claim of a right to retain these moneys, is of itself a showing that the defendant asserts a right in the fund in his hands. There is sufficient evidence to show that the complainant demanded an account. He lias received none, except so far as the copy of the letter written by the Philadelphia attorneys to the defendant might be deemed an account. But it will be noticed, that although the letters were addressed to the complainant, the moneys collected and the notes were not turned over to him by the Philadelphia attorneys but to the defendant, by whom part of these moneys were paid over to the complainant. The defendant still .has the notes and also a portion of these collections, amounting to something over $200, which he claims the .right to retain for services, &c.

The claim set up by the defendant for counsel fees is not a sum certain, nor is it averred or proved under any express contract, nor by any other mode which fixes the amount due to the defendant as a liquidated sum. What the defendant claims is, by way of set-off or counter-claim, a payment in the nature of compensation for services rendered. Neither the services nor the claimed compensation are of a definite character. No judgment at law has established a right to this compensation or fixed the amount thereof, so that by this defence the defendant sets up in response to a clear liability to account for moneys and property in his hands, a claim that unliquidated damages shall be allowed to him by way of set-off.

Whether the defendant is in fact entitled to have allowed to him such unliquidated damages as he sets up in his answer, is a matter which the court of appeals has declared must be determined at law. Trotter v. Heckscher, 13 Stew. Eq. 612; Alpaugh v. Wood, 18 Stew. Eq. 153. In the latter case the court of appeals declared that “ a purely legal demand for unliquidated damages is not cognizable in a court of equity.”

It should be noted that this is a denial that this court has judicial power to consider a legal demand for unliquidated damages by way of set-off, and that the declaration was made in a cause wherein equitable jurisdiction on other grounds had concededly attached. A decree was made for an accounting and discovery, but it appearing that the defendant’s counter-claim could have been recouped if there had been a suit at law, the court of appeals declared that the proper course would be to suspend the enforcement of the decree in equity for the accounting until an opportunity should be afforded to the other party to test, by an action at law, the validity of the counter-claim which they had set up.

The defendant contends that he has an attorney’s lien upon the money and the notes in his'hands, but even if he has such lien, he is not thereby freed from liability to account for the property of the complainant which he has received, as he admits, as complainant’s counsel.

The complainant in this case is entitled to an accounting. A decree will be advised accordingly, but with a clause suspending its enforcement until an opportunity shall have been afforded to the defendant to establish at law his right to compensation touching the matters set up in his answer by way of set-off.


source: Caselaw Access Project

author: Grey, V. C.

license: Public Domain

text:
    Moses D. Sarfaty v. Eva Sarfaty.
    [Filed January 24th, 1900.]
    1. Neither unkind and inconsiderate treatment (not amounting to that degree of extreme cruelty which would sustain a decree for divorce a mensa et thoro) nor a single instance of physical violence, happening two years before the wife departed, with no proof of a continuity of like treatment, nor an order by the husband to the wife to leave his house, given in the course of a quarrel, but not in any way renewed or enforced, the wife leaving two weeks thereafter, in the husband’s absence and without his knowledge, is sufficient cause to justify a wife in deserting her husband.
    2. In order to constitute a desertion the separation must be against the will of the complaining party. It does not lie with one who consents to or approves of the separation to complain of it as a desertion.
    3. A desertion by a wife is not obstinate where the letters sent her by the husband during the alleged two years of desertion exhibit neither desire nor willingness that she should return to him, and one of them proposes that she let him get a divorce quietly.

      Oil bill for divorce for desertion, answer and proofs.
    The complainant in this bill states his marriage with the defendant on August 16th, 1876 ; his residence at Hilltop, Camden county, New Jersey, since August 1st, 1883, and that the defendant deserted him there on May 1st, 1895, since which date she has not returned to his- residence, and he prays a decree for absolute divorce.
    The defendant, in her answer, denies the desertion complained of, and declares that she was driven from the home of the complainant on May 1st, 1895, by his cruel treatment, and that she has remained away through fear; that prior to the date named the complainant dealt harshly with her and neglected properly to provide for her and her children, and that, by reason of his cruel treatment, her health was permanently impaired.

      Mr. Henry I. Budd, Jr., for the complainant.

      Messrs. Bacot & -Record, with whom was Mr. Phillips (of the New York bar), for the defendant.
   Grey, V. C.

The complainant was married to the defendant in August, 1876. They took up their residence in New Jersey on August 1st, 1883, having theretofore resided in Philadelphia, Pennsylvania.

The desertion complained of occurred on May 1st, 1895, at which time the complainant’s family consisted of five children, a sixth having died two years before. On the date named the wife, with three children, left her husband’s residence and the village where he resided, from a railroad station not used by him, and in his absence from home, and, he says, without his consent or knowledge. Since that date the husband and wife have not seen each other. She has been living in New York with the three children, supported by her family.

The wife says that she was justified in leaving her husband and in remaining away from him. Her story is this: Shortly .after tlieir marriage, complainant began to show indifference toward her, when they were residing at a boarding-house, and .afterwards, while they were living with his mother in Philadelphia, he neglected her and failed properly to clothe and support her. At his mother’s house he left her alone throughout the evenings; the rooms there occupied were too small for the growing family; he did not furnish sufficient servants; she was com.pelled to do work to which she had not been accustomed; he ■bought a country place in New Jersey against her wish, and after they took up their residence there his conduct to her became more and more unbearable; he failed properly to support and clothe her there, and during a large part of the time between 1883 and 1895, she did the-whole of the housework and had the care of all the children without any assistance; the supply of food was not sufficient and he would find fault with the grocery .and butcher bills, &c.; she was compelled to clear away snow in the winter and to use a pump the handle of which could be ■worked only with extreme labor; he was harsh and cross to the ■children; .his language to her was offensive; he frequently beat .and maltreated the children, and. on one occasion struck his son with a saw, cutting open his cheek; on another occasion he struck him with a chain, on the hand, and injured him severely; once, for some trivial offence, he struck his daughter in the face. The defendant says these acts' of the complainant resulted in seriously impairing her health. About two years before the ■desertion complained of, defendant says she was attending the baby one night, when complainant became exceedingly provoked at its continued crying and defendant’s inability to quiet it. He found some fault with her, and upon replying that he should have patience he seized her by the throat and choked her, whereat she screamed. There was considerable friction between the husband and wife over money matters. She had left to her some $8,000 or $10,000, which she loaned him and was never able to get back.

Her story of the immediate cause of her departure from his home is this: Complainant came home one night with a fish ■which he wished her to pickle. She explained her inability to do so, being worn out from work about the house. Later, at the supper table, he asked for the fish, and when he was told' that she had been unable to comply with his wishes he gave way to his temper, became very abusive and told her to leave-his house, and that if she did not do so he would put her out. The occurrence is confirmed by the testimony of the oldest son and daughter. Defendant replied she would go as soon as she could get ready. This episode happened about two weeks before-her departure. She was, she says, during that time, packing and getting ready to go.

The complainant denies defendant’s story in all of the above-details. He says he never treated her with indifference or called her vile names; that he always gave her plenty of money and supplied her with sufficient clothing; that he never neglected-her, but was always affectionate to her and the children, whom he dearly loved, and he expressly' denies the statement of the-fish episode. He declares he never told her to leave his house. On the contrary, he testifies that he did not know that she was going and was amazed to find she had gone. As to money matters, he says his wife’s money was invested at her request, in stocks, and was lost.

- After- defendant left complainant’s house, in May, 1895, the parties had no personal interview before the bringing of this suit. Evidence of complainant’s purpose and state of mind is-disclosed only by letters written by him to his wife, whereby he says he endeavored to persuade her to return to him.

The circumstances narrated did not justify the wife in abandoning her husband’s house. If it were true that, in the heat of the quarrel about the failure to prepare the fish, he told her to leave his house, and that if she did not he would put her out, it is equally true that she remained for two weeks thereafter, with no further step, by either word-or action on his part,, toward carrying out his threat. At the time of her departure-she was under neither fear nor compulsion. Her husband was not present. The weight of the evidence goes to show that he did not know she intended to leave. Her selection of a route-of travel on which she would probably not meet him, indicates-that she concealed her leaving from him and a consciousness on her part that he.did not wish her to leave him. The circumstances detailed would not have entitled .her to a divorce from .him on the ground of extreme cruelty. His conduct towards .her was not such as to constitute desertion, of that sort where the husband compels the separation. In Wulff v. Wulff, N. J. L. J. 204 (1898), Vice-Chancellor Pitney held that to justify -desertion required the same degree of cruelty as would be neoes.sary to sustain a divorce on that ground. The only instance of physical violence towards the wife was shown two years before she left her husband, and the quarrel resulting in his order that ■she should go, was two weeks before her departure. That there was inconsiderate and unkind treatment by the husband towards the wife is too apparent, and his conduct cannot be held to be undeserving of blame, but the proof is not satisfying to show that it either produced in the wife a condition of terror or that, :at the time of the separation, it had undermined her health. The weight of the testimony is that there were contentions and all feeling between the parties, to which'the husband contributed his full share, and it is probable that during one of these quarrels he told her to leave his house. The only physical violence .towards the wife and, the hasty and ill-tempered command, that she should leave were both too remote to have seriously influenced her departure. There is no proof of any further act done by the husband which indicated a purpose to drive the wife .away, nor that she believed, when she went, that she was in any -danger of violence at his hands. She left her husband deliberately and of her own free choice, provoked to it, no doubt, by her unhappy situation. She might, however, had she chosen so to do, have remained to suffer the discomfort of his further -selfishness. This was the “for worse” which, by her marriage -contract, she undertook to bear and for which the law affords ,no remedy. Neither extreme cruelty such as the law takes cognizance of, nor the husband’s compulsion, occasioned tlie wife’s departure.

While the evidence does not show that the act of the wife in 'leaving her home was compelled, the attitude of the husband, both before and after she left, indicates that it did not meet with' his disapproval. When he returned to his home and found that she had gone he made no effort to induce her to return. He-knew she was at her mother’s house in New York, but a few hours’ journey from him, yet he did not go to see her to ask her to come back. He wrote her several letters, which, in the flood of contradictory parol testimony, afford a few islands of indubitable proof.

In none of these letters does the husband indicate any regret at the wife’s departure or any desire that she should return tollina.' On the contrary, the trend of them all is towards some-arrangement for a divorce upon terms to be dictated by him or the obtaining of her signature to his deeds disposing of his-lands.

'A summary of these letters of the husband to the wife will-show his position as to her absence by proof of his own making. His first letter to his wife after her departure from his house-simply sought to ascertain whether Mrs. Sarfaty would sign-a deed for a certain property. It contained no other suggestion of any kind. Several other letters, pertinent to the same matter, contain no suggestion of a change in their marital relations nor of any desire or willingness to have her return tollina. In a letter of July 5th, 1895, he says: I will not attempt to make any more deals that require your signature-until I am in a position to dispense with it.” In a letter dated July 8th, 1895, he says that if Mrs. Sarfaty had been where she-ought it would not have happened, referring to his failure to-put the deal through. In a letter of the 10th of July, 1895, he-tells her she is even a bigger fool than he thought her—

“I have made a fool of myself, waiting so long, but I could not bring myself to disgrace my children. I do not suppose I can get á divorce before-September, but I will see my lawyer and see what can be done. I shall apply for the custody of the three younger children, as I would not have them' brought up by such an unnatural mother.”

He writes that his lawyer says he has a plain case and there-will be no trouble, and as she seems so remarkably anxious for It, no doubt she would do everything in her power to hurry it up. In a later letter — August 5th, 1895 — he writes: “ If you will let me get a divorce quietly and give me custody of the three younger children I will give you everything I have in the world except the house and lot at Hilltop,” and he gives as his reason for such a proposition that he does not want to get into a prolonged fight with her if it can be avoided. “ In a fight with you I would beggar myself and you but that I would get justice.” Again he says:

“If fight there must be I have everything ready to commence my suit against you and also a suit for damage against some one else, and before I get through I will have my rights. I wish your answer at once,” &c.”

In a letter dated August 7th, 1895, to the brother-in-law of the defendant, his evident purpose is to recover the children, but there is nothing to show a willingness or desire to have his wife return to him. He says: “In a fight I can get a divorce and the custody of my children. Any fight with me will of necessity go on until I win or have nothing left to fight with.” He offered his wife every cent he had in the world except a house, on certain conditions : “My children shall not be brought up to hate me. I have no one in the world to love. There is no doubt the court would give them to me.” He says:

“ My wife knows where I live, and I will give respectful attention to any. thing she may write. I have everything ready for a suit for divorce and the custody of my children and also a damage suit. For reasons stated above I do not want to fight. My wife has been away so long the people are beginning to talk, arid the first breath of scandal would start me.”

It is, he writes, for his wife to say, and say quickly, what it shall be. He says his wife holds an awful power over him, which is the children, and for the love of them he has hesitated. Again he writes the brother-in-law, on August 13th, 1895, that if his wife and himself do not reach a complete understanding that week he would commence suit for divorce on August 19th. Any communication must come from his wife direct, and after that nothing she might say would have any effect.. He closes his letter with a veiled threat of some scandalous matter affecting his wife, which he might disclose in case he should have to sue. His last warning is — knowing his weakness and love for his children, he has just taken an oath on the Bible to commence suit on August 19th unless an understanding is reached before that time, and no power on earth would make him break an oath. There were further letters from him to his wife, none of which discloses the slightest desire or intention on his part to have her return to him. His later letters all contain threats more or less veiled — 'that he will give his wife “a taste of the law,” &c.; “she is a fool,” &e. In his letter of the 24th of December, 1895, he says: “We could be divorced quietly. * * * If you will obey me and do exactly what I say, well and good; if not, let those you do obey take the consequences.” In a letter dated June 23d, 1896, he says:

If you will send me the three younger children I will make any settlement regarding money matters in my power. As you do not wish to live with me you can have a home elsewhere. This is now your last chance for an amicable settlement. If you now refuse to accept my proposition my suit against your family and yourself shall be pushed to the bitter end.”

On the 11th of May, 1897, he wrote that divorce proceedings had commenced, and asked her if she had any proposition to make. This statement that divorce proceedings had commenced was false in fact, and probably to the knowledge of the complainant, for he did not swear to the bill until May 20th, 1897, nine days after he wrote this letter, and the bill was filed on the same day. She replied, on May 13th, 1897, that her proposition was’that if he wished to reach any adjustment he should meet her at once at some place in New York, not objectionable to either. In answer to her letter he says, in his letter of May 14th, 1895 : “I have no propositions to make, but I will hear any proposition you make and try and treat it clearly and fairly.” Sbe would have to meet him on Monday; that he would not come to New York, as it was her place to come to him, and if she came she must come alone.

These letters of the husband show a continuously vindictive spirit and an entire willingness, not only that his wife should live separately but an actual anxiety for a divorce. No one of Ahem displays an effort to persuade the wife to return to him. It is quite evident they were not written for that purpose, but to ■compel the wife to sign conveyances or to arrange for a divorce •upon terms to be dictated by him. These results were to be .accomplished not by gentle means but by the threats of suits to be brought against the wife and her mother. There is neither .any direct suggestion that the husband desired the wife to return to him nor any proposition looking to that end. It is also due to her to say that in the whole case there is not a particle of .evidence which casts a shadow upon her character.

Under these circumstances it is clear that the husband made •no honest endeavor to have his wife return to him. His letters were written in a spirit indicating a purpose to keep her away. ■One of his letters shows that he contemplated a divorce with •equanimity if only he could have three of the children, and in ¿another he actually made a direct proposition that she permit •him to get a divorce and make no defence.

It was after receiving such letters as these, covering nearly Alie whole period of her separation from her husband, that he wrote to her, falsely stating that he had begun proceedings for •divorce, and asked her if she had any proposition to make. He Alms drew from her. an indication of what her disposition was in view of an actual suit against her for divorce. She answered, writing him to come and see her in New York if he wished to adjust their matters. This letter was received by the husband before he had in fact begun this suit, and made known to him ■that his wife was willing to confer with him for an adjustment. He was probably now acting under legal advice and knew that -the tw.o years of her absence had expired, and that any show of willingness on her part to return to him would spoil the obstinacy of her desertion. He then wrote her in reply, refusing tc ■come and see her, telling her it was her place to come to him, and that if she came she must come alone. As might have been expected, she did not come alone from New York to Philadelphia to see him, and about a week after the husband’s last letter he filed his bill in this cause.

These being the relations of the parties according to the proofs, do they justify a decree that the wife willfully, continuously and obstinately deserted the husband for the period of two years ?

In the case of Bowlby v. Bowlby, 10 C. E. Gr. 406, this court declared that though a desertion by a wife may have been willful in the first instance, it could not be obstinate unless it was persisted in against effort or influence on her husband’s part to-bring the desertion to an end. Cornish v. Cornish, 8 C. E. Gr. 208, was cited as supporting that view. The case was taken to the court of appeals (10 C. E. Gr. 570), and was there affirmed on the opinion of this court. In Herold v. Herold, 2 Dick. Ch. Rep. 210, the principle was again applied, and it declared that when the husband was not entirely blameless for the act of the-wife, and he makes no effort to prevent her desertion of him and acquiesces in and appears satisfied with its continuance, he is not entitled to a divorce. In Costill v. Costill, 2 Dick. Ch. Rep. 349, it was again declared that if a husband does nothing to induce his wife to return to him, even when she separates from him without sufficient cause, her desertion will not be deemed to be-obstinate.

Through all these cases the principle is recognized that the separation of the parties, in order to constitute desertion,’ must be against the will of the party complaining. It is quite obvious' that if there is an acquiescence or approval of the separation by the party who complains, it does not lie with him to make the-matter done with his consent, the basis for the dissolution of the-marriage contract.

In this case the complainant’s own treatment of his wife, though' not sufficiently harsh to justify the separation, was undoubtedly a provoking cause thereto. His conduct after the wife left indicated no desire on his part that she should return, nor even a-willingness to receive her. His letters to her, considerable in number, and running over nearly all of the two years during which he claims she continuously and obstinately deserted him,, shows toward her, not that treatment which a just man should extend to his wife, who had impatiently and unadvisedly separated from him, but a willingness on his part that she should stay away, and one letter proposes a collusive divorce.

Counsel for complainant lays special stress upon what he says was an effort on Mr. Sarfaty’s part to have his wife return to him, when he retained a law firm in New York with what he claims was a. purpose to effect a reconciliation. The letter of instruction, written by complainant to his New York counsel, directed that prior to instituting any legal proceedings against his wife and her family, they should take steps to obtain an amicable settlement with her, but expressly stipulating that his wife and children must return to him at once, and that there be no further communication whatever between his wife and her family, except through him. It is not clear that this offer was ever communicated to the wife, or that she knew he had sent-it. The conditions which the husbaud imposed were that the wife' should abandon all communication with her family,. except through him. The wife knew that the husband held her family in abhorrence, and that he accused them, wrongfully it appears, of alienating her from him. Such an unreasonable condition destroyed any effect that such a message might possibly have had as an indication of a purpose on his part to have his wife-come back. He must certainly have foreseen that such a condition was very unlikely to bring peace and good will between them or to lead to her return. Nor was it in any way reasonable that his wife should be required, as a condition of her reception by her husband, to have no further communication with her mother and family, except through the husband who hated them. Her mother had practically supported her during the separation, but does not appear to have induced it, or to have exercised any influence over the wife to prejudice her against her husband. In his testimony the husband says he has always been willing to have his wife return to him, but only upon the express condition that she have no further communication with her family, except through him; but his various letters,- written during the separation, do not support his testimony. The message which he claims he sent through his New York counsel seems more evidential of a purpose to keep the wife where she was than to. induce her to return. The condition itself was unfair and unreasonable.

There lias been no sufficient evidence that the defendant, against the will of the complainant, obstinately deserted him for the period of two years.

Incidental to his application for divorce, the complainant has filed a petition iii this cause asking possession of the children •of the marriage, who are with their mother in New York. The consideration of this petition is dependent upon the application for divorce now under consideration. That failing, the petition for custody of the children must also fail .and be disposed of as an original and independent matter.

Upon the whole case the complainant has not proven that the wife’s separation was a willful, continued and obstinate desertion. There should be a decree that complainant’s bill be ■dismissed, with costs.


text:
    Charles I. Wooster v. William T. Cooper and Isaac Cooper et al.
    [Filed January 30th, 1900.]
    1. A demand will be held to be res adjudieata, when by a former decree or judgment, the same claim, based upon the same muniment of title, between the 'same parties, touching the same subject-matter, has been determined by a competent court. •
    2. The fact that a certain effect of a muniment of title presented in both suits, is in argument more especially urged in the second suit, or that in the opinions of the judges who determined the first suit, that effect is not discussed, will not prevent the former decree or judgment from operating as an estoppel, where the issues presented by the pleadings or findings of fact in the previous suit are broad enough to include the matter sought to be litigated in the second.
    3. Where the former judgment and the issues being tried in the later cause are upon the same demand between the same parlies, the former judgment, if ren•dered on the merits, is a bar to the second action, not only as to every matter which was offered and received to sustain or defeat the claim, but as to any ■other admissible matter which might have been offered for that purpose.

      4. A power to dispose of lands given to be exercised inter vivos, will not be held to be well exercised by the last will of the donee, in favor of a volunteer. Especially where the enforcement of such an- attempted exercise of the power will defeat a gift over expressed in the donor’s will.
    5. ' Quaere. Should a general devise in the will of a donee, disposing of her own property and not in any way referring to the power to dispose of lands, be held to be an exercise of the power solely because the donee owned no lands at the time her will was made? Since the act of 1851 (Qen. Stat. p. S761 \ 24), a general devise will dispose of lands acquired by the testatrix after the making of the will, and such a devise would be fully fed by an intent on the part of the testatrix to pass such after acquired lands, without relating it to the lands within the power.
    6. Where all the beneficiaries, who are distributees of the proceeds of the-sale of land directed to be sold under a power, join in asking a conveyance of the lands to themselves, according to their distributive shares, instead of making a sale under the power, and such a course does not substantially conflict with the purpose of the gift, a conveyance by the donee of the power will be decreed by this court to be made.
    On cross-bill, answer and proofs..
    This cause has now come to a hearing on the amended cross-bill of Isaac Copper, and the answer thereto of Charles I. Wooster as defendant.
    Mr. Wooster filed the original bill in this cause as complainant, as one of the executors of the will of Benjamin D. Cooper,, and executor and residuary legatee and devisee of Tacy Cooper,, against Isaac Cooper and others, who claimed, under the will of Benjamin D. Cooper, property which' Mr. Wooster alleged had passed by Tacy Cooper’s will to him.
    The original bill sets forth in full the will of Benjamin D. Cooper. The only clauses which are necessary to be passed upon are as follows :
    “ I order and direct that all my just debts and funeral expenses shall be paid by my executors or the survivor of them as soon as conveniently can be after my decease.
    “I order and direct that all my estate real, personal and mixed, shall during the life of my beloved wife Tacy Cooper, should she survive me, pass into her hands and be subject to her sole management and control to keep and use or sell and dispose of the same as she shall see fit, and my executors hereafter named shall not during the said time be responsible therefor.

      “From and after the death of my wife should she survive me, otherwise from and after my death, all my estate real, personal and mixed which shall then remain, I order and direct my executors hereafter named or the survivor of them to dispose of as soon as conveniently may be thereafter as follows:
    “ My secretary to my nephew William T. Cooper, son of Warner T. Cooper; my book-case and desk to my nephew Warner Cooper, son of Warner T. Cooper ; and all the balance of my estate real, personal and mixed that may then remain to sell and dispose of for the best price that can be gotten therefor at public or private sale to such person or persons as my said executors or the survivors of them shall see fit; and the proceeds arising therefrom after deducting all reasonable costs and charges to pay as follows: to wit, that arising from the sale of my farm, crops, stocks and farming utensils to pay in equal proportions to my niece and four nephews to wit: William Cooper and Isaac Cooper, sons of Clark Cooper; Anna J. Cooper, William T. Cooper and Warner Cooper, daughter and sons of Warner T. Cooper, share and share alike, to have and to hold to them, their heirs and assigns forever.
    “And that arising from the sale of the balance thereof to pay as follows, to wit: To my nephew, Leander B. Joyce, five hundred dollars, to have and to hold to him, his heirs and assigns forever; to my niece Sarah Leeds, two hundred dollars to have and to hold to her, her heirs and assigns forever ; To my^ niece Tacy Burk, two hundred-dollars, to have and to hold the same to her, her heirs and assigns forever; To my niece Martha Jennette two hundred dollars, to have and to hold to her, her heirs and assigns forever; two thousand dollars of that arising from the sale of the said balance shall be invested by my said executors and kept invested by them or the survivor of them in good and sufficient securities during the life of my niece Hannah T. Prickett, wife of Ridgway Prickett, and the incomes and profits thereof paid to her by my said executors or the survivor of them semi-annually to have and to hold the said incomes and profits to her sole and separate use forever ; At the decease of the said Hannah T. Prickett, should she survive me, and also my beloved wife, otherwise at the death of the survivor of my wife and me, to pay to Walter Prickett son of my said niece, Hannah T. Prickett, one thousand dollars, to have and to hold to him, his heirs and assigns forever; All the remaining portions arising from the sale of said balance to pay in equal proportions to my two qephews and niece Charles I. Wooster, Benjamin C. Wooster, and Ida A. Parker, sons and daughter of Ira Wooster, share and share alike, to llave and to hold to them, their and each of their heirs and assigns forever.
    “And for the better effecting the purposes aforesaid I hereby authorize and empower my executors aforesaid or the survivor of them, to sign, seal, execute, acknowledge and deliver all such deed or deeds, conveyances, transfers and assignments as may be requisite and necessary for the granting, assigning and setting over the lands and real estate, bonds, mortgages, stocks and other investments and securities to the purchaser or purchasers thereof in fee-simple or otherwise and without any liability on the part of such purchaser or purchasers as to the non-application or mis-application of the purchase-money.”

      The will of Benjamin D. Cooper was probated March 4th, 1883, by the executors therein named.
    The bill also sets forth the will of Tacy Cooper, widow of Benjamin, which is in these words:
    “I, Tacy Cooper of the City and County of Camden, State of New Jersey do make and publish this my last will and testament as follows:
    “After the payment of my just debts and funeral expenses, I give, bequeath and devise all my property, both real and personal wherever situate, and whatever the same may be, to my nephew Charles I. Wooster, of the Village of Berlin, to him and his heirs forever.
    “I hereby nominate and appoint Charles I. Wooster executor of this my last will and testament.
    “ In Witness whereof I have hereunto set my hand and seal this nineteenth day of June A. D., eighteen hundred and ninety-three.
    “Tacy Cooher. [Seal.]
    “ Signed, sealed, declared and published by the said Tacy Cooper to be her last will and testament in the presence of us, who were present at the same time, and subscribed our names as witnesses in the presence of the testator and .in the presence of each other and at the request of the testatrix.
    “ George J. Bergen
    “ Martin V. Bergen, Jr.”
    The will of Tacy Cooper was probated by Charles I. Wooster, •executor, on March 20th, 1894.
    In order that the questions of res adjudicata argued in this cause may be properly considered, it is necessary that the previous litigations of the parties, in which it is contended their present dispute has been adjudged, should be shortly examined. In the original suit in this court, between the parties, the complainant (Wooster), alleged that, “according to the law of the land,, the estate of Benjamin D. Cooper passed by the will of Tacy Cooper to the said Charles I. Wooster, and the other parties [defendants] have no interest therein.” The bill further alleged that the defendants had obtained possession of some of the moneys of the estate of Benjamin D. Cooper, for which they refused to account, and prayed a decree be made declaring that “the estate of Benjamin passed to and is the sole and separate property of the complainant by the will of the said Tacy Cooper,” and for an accounting and payment of the amount found to be due from the defendants, and directing that they convey to-the complainant all their pretended right in Benjamin’s estate.
    The litigating answer of the defendant Isaac Cooper denies that the estate of Benjamin passed by the will of Tacy to Wooster and denies that the defendants have no interest therein. On the contrary, the defendant Isaac Cooper asserts that the estate of Benjamin, on Tacy’s death, vested in the defendants. In his answer he avers.
    “ that upon the true construction and meaning of the said will of the said Benjamin B. Cooper the quantity of estate by the said Tacy Cooper is therein expressly defined to be for life,.and that the superadded words are to be construed to be a mere gift of a power of disposition, and that the said Tacy died without having exercised the said power of disposition with respect to the estate of the said Benjamin B. Cooper or any part thereof, and thereby this ■defendant and other parties, &c., became entitled to the estate of Benjamin B. Cooper, pursuant to the’terms of his said will.”
    It was on these pleadings that the cause came to the hearing on which the decree of October 17th, 1895, was made, to the effect that by the true construction of Benjamin’s will, Tacy took but a life estate in both his real and personal, and that upon her death his estate went to Benjamin’s legatees, unaffected by the will of Tacy, in the pleadings mentioned. The same decree, however, declared that a cross-bill was necessary to the complete determination of the matter in controversy and gave leave to the defendant Isaac Cooper to file such a bill.
    An- appeal was taken from this decree, and it was affirmed by the court of appeals. The opinion is reported in 8 Dick. Ch. Rep. 632. Upon the coming in of the remittitur affirming the decree of this court, the defendant Isaac Cooper filed the cross-bill authorized by that decree.
    In the cross-bill, Isaac Cooper alleges that Charles I. Wooster and William T. Cooper, the executors of Benjamin D. Cooper’s will, had paid his debts, delivered the specific legacies and paid most of the money legacies; that they bought in under the foreclosure of the Evans mortgage (held by Benjamin in his lifetime) the mortgaged premises by deed made to them jointly as executors, and now hold the legal title to the same; that all of the beneficiaries under the second power in Benjamin’s will survived Tacy Cooper, who died on February 24th, 1894. He then charges that, according to the true construction of Benjamin’s will,. Tacy took but a life estate in his property; that upon her death his legatees became entitled to all of it then remaining; that the farm (described in several tracts) and the proceeds of the executors’ sale of the crops, stock and farming articles remained, the said Tacy not having kept and used or sold and disposed of the same in accordance with the power and authority in that behalf contained in the said will of the said Benjamin, .and that by reasons thereof the complainant and the other legatees of the proceeds of the farm, the crops, utensils, &c., became entitled to those proceeds; that the farm, because of its proximity to a growing town, has a special and fast-increasing value. The complainant prays that the trusts created by Benjamin’s will may be declared and enforced; that the interest of the complainant and others interested with him in the proceeds of the farm, the crops, stock and farming utensils, upon the death of Tacy, may be ascertained and declared; that an account may be taken of the real and personal estate whereof Benjamin D. Cooper died seized which came to the hands of the executors or either of them, and of the expenditures and disposition of the same by the said executors or by either of them; that the executors may be decreed to convey the farm to the complainant and others interested instead of selling it and dividing the proceeds among them; that the proceeds from the sale of several elements of the personal estate of Benjamin D; Cooper remaining at the death of Tacy Cooper may be ascertained and applied according to the directions of Benjamin’s will.
    To this cross-bill of Isaac Cooper, there is but one litigating answer, that filed by Charles I. Wooster (one of the executors of Benjamin D. Cooper’s will), who is also, as above stated, the sole beneficiary under the will of Tacy Cooper, and was the complainant in the original bill of complaint. In his answer to the cross-bill Charles I. Wooster alleges that Tacy Cooper possessed herself of Benjamin D. Cooper’s real and personal estate and regarded it and treated it as her own; that when he (Wooster) paid the debts of Benjamin, it was by Tacy’s persona] direction so to do, as her agent, and at her request; that Tacy, and not he, delivered the specific legacies. He denies that there is any residue of Benjamin’s estate in his hands, alleging that Tacy assumed control and disposed, under the terms of Benjamin’s will, of the entire residue, if any there was, of Benjamin’s estate. He denies that he and his co-executor together hold the title to the Evans farm under the foreclosure, and insists that under the terms of the wills of Benjamin H. and Tacy Cooper he alone owns the title under Tacy’s execution by her will of the power bestowed upon her by the will of Benjamin. He admits that by the true construction of the will of Benjamin, Tacy took a life estate, but denies that the complainant and others took the real estate as claimed, and avers
    “that the said Tacy Cooper by the terms of Benjamin’s will, acquired an absolute and unlimited power to dispose of all of deceased (Benjamin’s) property real and personal; * * * that the said Tacy actually exercised that power by her last will and testament set out in the bill, and devised all of the said real estate to the said Wooster, whereby he became and is sole owner of all of the said property,”
    and the rents and profits of the real estate, and also the personal property left by Benjamin passed into Tacy’s hands, and was by her wholly used and disposed of during her lifetime as by Benjamin’s will she was authorized to do, and that at the death of Tacy there was no undisposed of property of Benjamin.
    Issue was joined, and the parties came to a hearing on the cross-bill and this answer. On the opening of the cause, an examination of Benjamin D. Cooper’s will showed that he had devised but a life estate to hiswidow Tacy, and had created two successive powers of sale, but had not devised the fee of his lands to anyone. The title to the fee had therefore descended to the heirs-at-law of Benjamin, subject to a life estate devised to Tacy, and subject also, first, to the exercise of the power of disposition given to Tacy, and second, to the power of sale given to the executors. A further examination of the pleadings showed that the heirs-at-law (whose title one party claimed had been devested by the exercise of the power of sale given to Tacy, and the other party sought to devest, by the exercise of the power given to the executors), were not parties to the' suit. The vice chancellor declared that the heirs-at-law, whose title both the litigants sought to take away, were necessary parties, .and laid the cause over until they should be brought into court. Wooster v. Cooper, 11 Rick. Ch. Rep. 759.

    Shortly after this decision, the heirs-at-law of Benjamin D. Cooper were made defendants by amendment to the cross-bill. In the amended cross-bill the interest of the parties in the farm, proceeds of crops, &c., is defined as follows in the eighth paragraph:
    “According to the interpretation of the will of Benjamin D. Cooper, Tacy Cooper, his widow, at her decease * * * took a life estate thereunder in his estate * * * that upon her death the legatees named in his will became entitled to all of the said estate then remaining.”
    It is further alleged in the amended cross-bill that the farm and proceeds of sale of crops, &c., then remained, the said Tacy not having kept and used or sold or disposed of the same, in accordance with the power contained in Benjamin’s will, and thereby the interest of the complainant, Isaac Cooper, and those claiming with hjm in the farm, &c., accrued. That the farm is by reason of its nearness to a large town readily divisible into lots, and is more valuable to the beneficiaries as land than the proceeds of its sale would be. The cross-bill sets forth the previous litigation on the original bill and the decree therein pronounced. It prays that the will of Benjamin D. Cooper may be fully executed; that the executors may convey the farm to Isaac Cooper and others interested, &c., according to their several shares instead of selling it; that an account may be taken of the estate of Benjamin, remaining at the death of Tacy, and the estate may be applied according to the directions of his will, &c.
    The defendant Charles I. Wooster answered the amended cross-bill in detail, again stating his defence, and for the first time declaring in specific terms

      “ that Tacy Cooper, in and by the instrument in writing aforesaid [her will, which is set out again in full], and in her lifetime, fully and completely disposed of all the property of Benjamin”
    to the said Wooster, and that he held the same free of all trusts. The answer to the cross-bill alleges that
    “ at the time of the execution of the above instrument in writing [her will] Tacy had no property of her own, and that by that instrument she intended to dispose of and deliver, and did dispose of and deliver to Wooster the whole of the property of Benjamin D. Gooper,”

    and that since her death the said Wooster has been in possession, &c., and all rights of the heirs and legatees of Benjamin D. Cooper set forth in the cross-bill are denied.
    This cause then remained for a time in repose, and before the issues joined in this court came to a hearing, Wooster, the defendant in the cross-bill, prosecuted to judgment an ejectment suit in the supreme court for the farm in question, which he had' brought against Fitzgerald, the tenant in possession, and against Isaac Cooper and the other defendants who claim the farm. The cause was tried by the court without a jury. By agreement the trial judge found the facts specially, and certified them to the supreme court for argument and determination as to what judgment should be rendered. The supreme court, on the argument as to this judgment, had before it the special facts found, and this finding recited full copies of the will of Benjamin I). Cooper and of Tacy Cooper. It stated the death of Benjamin ,• that Tacy Cooper, his wife, took possession and demised the farm to the tenant, Fitzgerald, for one year, who held-over his term, and in paragraph 4 of the special finding are these words:
    “ That on the 19th day of June, 1893, said Taey Gooper executed and delivered to plaintiff [Charles I. Wooster] the following instrument in writing [here follows a copy of Tacy’s will as above recited, dated June 19th, 1893], which, instrument of writing was admitted to probate in due form of law by the surrogate of the county of Camden, and letters testamentary were duly issued to this plaintiff.”
    The finding further declares that Tacy never had any real estate, lands or tenements of her own, and then recites the proceedings in this cause up to the decree of October, 1895, and its affirmation on appeal to the court of appeals.
    The supreme court, on the special facts certified, determined that Wooster, the plaintiff in the ejectment suit, was not entitled to recover the farm and gave judgment against him. The case is reported as Wooster v. Fitzgerald, 32 Vr. 368. Writ of error took this judgment to the court of errors and it was there affirmed (Wooster v. Fitzgerald, 32 Vr. 688), and a rehearing in that court was, on petition filed therefor, refused to Mr. Wooster.

      Mr. James JBuehanan, for Isaac Cooper, complainant in the cross-bill.

      Mr. Robert S. Clymer, for William T. Cooper and others.

      Mr. John J. Crandall, for the defendant in the cross-bill, Charles I. Wooster.
   Grey, V. C.

This cause came to the present hearing upon the amended cross-bill of Isaac Cooper (one of the defendants in the original bill), and the answer of Charles I. Wooster (the complainant in the original bill) to that amended cross-bill.

The first question presented is the contention of the complainant in the cross-bill, that the matters now sought to be litigated have already been determined by the previous decree made -in this cause on October 17th, 1895, and by the above-cited judgments in the supreme court and in the court of errors.

The due consideration of this dispute requires an ascertainment of the matters now in litigation in this cause, and an examination of those previously adjudged. If the same matters here and now sought to be litigated, were determined by the previous decree and judgment, they cannot be here again considered.

There can be no denial that the matters in dispute by the issues joined on the amended cross-bill and the defendant Wooster’s answer thereto, presently before this court, are between the same parties, touching the ownership of the same property, by the operation of the same instrument which was presented on the former hearing in this cause. The defendant Wooster insists that the decree on that hearing, though against him, is not conclusive, because he says that in the original bill upon which the decree was made, the will of Tacy was presented as a devise of an estate which had vested in her, or at most as the execution of a power which she had authority to exercise by her last will. He contends that the former decree simply declared that Tacy had no power to devise the farm, or to dispose of it by her will operating after her death, whereas in the cause now being heard, he insists Tacy’s will is offered as an instrument in the nature of an appointment, which operated upon the delivery of it by Tacy, inter vivos, to Mr. Wooster.

In order, therefore, to decide whether the same demand now presented was adjudged by the decree of October 17th, 1895, it is only necessary to ascertain Avhether the claim now insisted upon was within the scope of the former decision.

In the original bill on which that decree was founded the complainant, Wooster, showed that he Avas one of the executors of Benjamin I). Cooper’s will, and was also sole legatee and devisee under the Avill of Tacy Cooper. That bill also set out the Avills of both Benjamin and Tacy, and asked a decree declaring that by the will of Tacy, according to the law of the land, all of Benjamin’s estate passed to the complainant (Wooster), and that the defendant Isaac Cooper and others had ho interest in any of it, &c., and directing that they convey their pretended interest in that estate to Wooster.

The defendant Isaac Cooper, by his answer, denied these contentious as to the effect of the wills set forth, and insisted that under Benjamin’s Avill Tacy took but a life estate in Benjamin’s property, with a power of disposition which she never exercised, and that on her death, Benjamin’s estate which then remained passed to him, Isaac Cooper, and others.

The allegations of Mr. Wooster in the original bill on which the decree was pronounced were not limited, as his counsel iioav contends, to an assertion that Tacy took a fee in Benjamin’s property, which she devised to Mr. Wooster. On the contrary, the charges in that bill broadly assert that the complainant received title to Benjamin’s property by the operation of Tacy’s will. It is quite obvious that Tacy could not pass Benjamin’s estate by her will, unless it were done by the exercise of some power of disposal given her by Benjamin’s will, and as both wills are set out in the bill at length, the averment must be considered with reference to their provisions. The allegation does not specify what estate Tacy took, nor does it define in what mode Tacy’s will operated to pass Benjamin’s estate. The statement that it did pass Benjamin’s property is broad enough to support a contention by the complainant that Tacy’s will passed the property to him, either as an execution of the power inter vivos, by delivery of that instrument to the complainant, or after her death as an execution of the power by her last will.

The defendant’s answer in response to this allegation insists that the true meaning of the will of Benjamin is that it gave to Tacy but a life estate and a power of disposition which she did not exercise. The issue thus tendered was a matter of law determinable by the construction which the court might put upon the two wills which were submitted, but the defendant also averred that Tacy did not exercise the power of disposition. This sets up a matter of fact, responsive to the complainant’s (Wooster’s) allegation, that Tacy’s will passed the title to Benjamin’s property to him. It declares that Tacy never exercised the power in any mode or at any time, and thus asserts that the incidents essential to a disposition by Tacy, if made inter vivos, such as the making and delivery of an appointment to Wooster in her lifetime in execution of the power, never happened. It is an averment which, if true, made it impossible that Tacy could ever have done any act inter vivos, or operating by way of a will, in the nature of an appointment, by which she disposed of Benjamin’s property by passing it to the complainant, W ooster.

The cause was set down for hearing on bill and answer. In such cases the answer must be taken to be true in all points. Gen. Stat. p. 379; Chan. Act. p. 143.

It is insisted that the averment in the answer of Isaac Cooper to the original bill — that Tacy had but a life estate and a power o£ disposition, and that she did not exercise the power — is extraneous matter, voluntarily brought before the court by the defendant and not pertinent to the allegations of the bill. This contention cannot be supported. The complainant (Wooster) invited the defendants into court, alleging that the property of Benjamin has passed to him (Wooster) by the will of Tacy, setting forth both wills, charging that Cooper was making false claims to the property and asking a decree that Cooper and those claiming with him should refrain from interfering with it, and that they might be compelled to convey their pretended interest. In meeting such charges, Cooper and those with him were justified in denying Wooster’s title and in setting forth any fact which would support their own claims and prevent a decree depriving them of their title. It appeared by Benjamin’s will that Tacy had a power of disposition which was superior to that under which the defendant Cooper and others claimed. If Tacy’s power had in fact been exercised, then the defendant had no equity. He expressly declared in his answer, in words broad enough to cover any mode of exercising the power, that Tacy had made no disposition. This allegation in the answer to the original bill was a pertinent and responsive averment in'denial ofithe complainant’s claim of title and in support of the defendant’s claim of title.

The issue joined was, therefore, whether Tacy’s will operated in any manner to pass Benjamin’s estate to Mr. Wooster. The extent of the decree must be held to be as wide in its scope as are the pleadings upon which it is based. The claim made was that Tacy’s will (set forth in words at length), operating in some way (not specifically defined), passed title to Wooster, and the defendant denied that the instrument had such operation, and further denied that she ever executed the power which it is now claimed was exercised by her will operating as an inter vivos appointment.

The matter determined by the decree is fairly expressed by its own phrasing. It adjudged and decreed

“ that upon her [Taey’s] death all the said testator’s real, personal and mixed then remaining became vested in the legatees, in his [Benjamin’s] said will named, and said legatees then became entitled thereto, and the same should be distributed pursuant to the terms of his will, unaffected by the will of his said widow, Tacy Cooper, in the pleadings mentioned.”

The effect of this decree was to adjudge that on Tacy’s death the estate passed under Benjamin’s will to his legatees, and that the instrument set forth in full as Tacy’s will in nowise affected this devolution of title by operating in any way to pass title to Mr. Wooster. This is the matter now presented by the defendant Wooster under the amended cross-bill, and having thus been once adjudicated and in this very cause, it cannot be again submitted to the consideration of the court.

At the stage of litigation at which the decree of October 17th, 1895, was made, while the pleadings appeared to raise the question of title to the whole estate of Benjamin D. Cooper, the case was in fact not then so presented that the court’s decree was effective to determine the disputes between the parties as to his real estate. At that time the heirs-at-law of Benjamin, to whom the title to his real estate had descended, subject to the exercise of the powers of sale, were not parties to this suit, nor did the pleadings then on file show that any equitable relief was sought which justified this court in passing upon that title. For these reasons the decree, in its operative effect, extended only to the personalty part of Benjamin’s estate. The court of appeals has declared this to have been its extent, and that it could not work an estoppel in an action of ejectment to recover the lands of Benjamin. Wooster v. Fitzgerald, supra. That court, however, clearly intimates its opinion that the decree did work an estoppel against Mr. Wooster as to the personalty portion of Benjamin’s estate. The decree must be held to have finally adjudicated and settled adversely to Mr. Wooster his claim that he took Benjamin D. Cooper’s estate under the will of Tacy so far as that claim applied to Benjamin’s personal estate.

This is res adjudícala and no longer open for argument or consideration. This was the effect of that decree upon the parties then before the court, upon the pleadings as then presented. The complainant (Wooster) and the defendant .Isaac Cooper were then parties to this suit and are both bound by that decree.

It remains to be determined whether the disputes between the complainant (Cooper) and those associated with him, asserting their interest under Benjamin D. Cooper’s will in the proceeds of the sale to be made of the real estate whereof he died seized, and of the defendant Charles I. Wooster claiming to own that real estate under the operation of the will of Tacy, have been so adjudicated by a competent tribunal that this court should recognize those questions as finally settled.

The introduction into the cross-bill of the prayer for the conveyance of the farm lands to the interested beneficiaries, rather than their sale and the payment of the proceeds to them, brought in a new element of equitable jurisdiction, namely, the enforcement of a trust power, necessarily involving the determination of the title to the farm lands, and the vitality of the power of sale given in the will of Benjamin to the executors, which, under this new feature of the case, it was claimed should be used to pass the title of these lands to those beneficiaries named in his will, as distributees of the proceeds to arise from its sale by the executors.

By the terms of Benjamin D. Cooper’s will, the fee of his farm remained undisposed of and descended to his heirs-at-law. In order to consider the new question presented by the cross-bill, it was obvious that the heirs-at-law of Benjamin to whom the fee of the farm had descended must be in court, for the exercise of the power of sale, by conveyance either to the beneficiaries or to strangers, would divest these holders of their ownership. The holders of the title, the heirs-at-law, not being parties to the cross-bill, the case was laid over that they might be brought in, and this was done by the amended cross-bill, which the defendant Wooster answered again as above cited, now setting up his claim that he took the lands in question by the effect of the will of Tacy operating as an execution of the power inter vivos.

It will be remembered that the former decree for want of proper, parties, and of equitable jurisdiction at that stage of the litigation, was effective only to the extent of Benjamin’s personalty. The complainant in the amended cross-bill insists that the defendant Wooster’s claim is also res adjudicada as to Benjamin’s real estate. This contention is based not upon the effect of the former decree, but upon the judgment of the supreme court, pronounced in the ejectment suit brought by Wooster against Fitzgerald, the tenant of the farm, and Isaac Cooper and others. This ejectment suit came to judgment after the amended cross-bill was filed, and the record of it is produced here "in evidence.

That it was a litigation between Charles I. Wooster and Isaac Cooper, the same parties who are opponents in the hearing on the amended cross-bill and answer now before this court, and that it presented the question of their respective claims to the Benjamin D. Cooper farm, is not disputed. The complainant in this cause (Cooper) insists that the very same matter now and here in dispute was heard and determined in that ejectment suit. On the other hand, the defendant Wooster contends that the claim of title to the farm which he now makes was not submitted or passed upon in the ejectment suit.

It is not denied that the defendant Wooster claimed in the ejectment suit as he does in this cause, under-the will of Tacy operating as an execution of the power given her in Benjamin’s will, but he insists that in this cause he claims that Tacy’s will was an execution by her of that power inter vivos, and that in the ejectment suit he set up Tacy’s will as an execution of the power operating as a will only.

Was the will of Tacy before the supreme court for it to decide whether it operated as an execution of the power inter vivos f If that court had determined that the will of Tacy, operating as an inter vivos execution of the power, had passed the farm to Mr. Wooster, would that judgment have been based upon a matter dehors the record ? If that fact was so within the record that a judgment for Mr. Wooster would be related to it to support the judgment, it must be held to have been so within the same record as to be res adjudicata, when judgment was given against him.

The special finding recited Benjamin’s will, which gave the power to Tacy, and in setting up her will did not in terms specify that it operated in any special mode as an execution of the power. But the finding did state Tacy’s will as an instrument in writing (setting it forth in full), which, on the day of its date, Tacy “executed and delivered” to Mr. Wooster. The special finding is drawn with apt words to present the facts upon which the several parties based their claims. The language used, “ executed and delivered,” is appropriate to the allegation of the exercise of a power of appointment inter vivos, and is quite variant from that which would recite the exercise of a power by last will, which would have alleged the instrument to have been “published and declared.” Under this finding the court had presented to it, and must have considered, whether an execution and delivery on June 19th, 1893, by Tacy to Wooster, of such a paper writing, was such an inter vivos execution of the power given her by Benjamin’s will as would pass the fee of the farm to Wooster. Had judgment been for him it would have been sustained on the ground that the facts declared that Tacy had executed and delivered to Wooster an efficient execution of the power. The rendering of a judgment against Wooster was necessarily a determination that such an execution and delivery of a will did not pass the fee inter vivos. The judgment in the ejectment suit was therefore an adjudication between the same parties touching their title to the same subject-matter, by the same instrument, operating in the same manner, as is now presented in this cause.

The very matter of the efficiency of the delivery of Tacy’s will, as an inter vivos execution of the power, having thus been adjudicated in a law court, which is essentially the proper forum in which to determine the title to lands, the defeated party cannot, against his adversary, be permitted to raise the same question in this cause.

The judgment thus pronounced was, on writ of error, taken before the court of errors and was there affirmed (Wooster v. Fitzgerald, supra), and a motion made for a rehearing was not granted. It is thus plainly shown that the defendant’s eontention'has had full consideration.

The defendant Wooster insists that the opinions which the learned judges delivered in the previous suits indicate that they did not consider his claims that Tacy’s will operated as an execution of the power inter vívqs. The learned judges delivered their opinions upon such points in the cause as they deemed worthy of their notice, but their omission to discuss other matters (within the issues presented and determined by the judgment) on which the defendant desired a deliverance cannot be thus cited to prevent the effect of the record. What has been adjudged is to be settled by the issues presented and determined by the judgment. The opinions of the learned judges express the reasons for the judgment, but form no part thereof.

The foregoing review of the proceedings in the several controversies between the parties shows that the determination of the issues expressly presented and decided by the effect of the previous judgments had adjudged that the defendant Wooster had no title to the farm under Tacy Cooper’s will, operating either as a devise, as a will executing the power, or as an appointment inter vivos.

But if in fact the latter construction was not in express terms argued and discussed in the opinions accompanying the previous judgments, that claim was clearly included within the issues joined in this case before the decree of October, 1895, as to the personalty, and in the ejectment suit in the supreme court as to the real estate. The cause now under consideration presents the same demand,' between the same parties, touching the same matter, under the same piece of evidence, which was submitted on those previous issues. There is no difference as to the claim or demand made. That claim was and is that Wooster took title to the farm by the operation of Tacy’s will. The only possible difference is as to the mode by which that will operated, whether as a devise or as an appointment by will or 'inter vivos. If each of those was not in fact argued and discussed, in the opinion of the learned judges, by whom the causes were heard, each of them was included in the issue joined, and determined by the judgment. While it is true that mere opportunity to present a claim does not make the judgment in. a cause res adjudiaata, as to a matter not presented, it is equally true that the actual joinder in issue on the point and judgment thereon are conclusive, whether one mode of operation of a piece of evidence or another is argued or discussed. Otherwise what has been adjudicated cannot be ascertained from the record, but must be gleaned aliunde by parol proof of the points argued or discussed in the opinions, and perhaps (as is insisted upon in this case) in contradiction of the facts shown by the record.

The principle appears to be well established that where the former judgment and the issues being tried in the later cause are upon the same demand, the former judgment, if rendered upon the merits, constitutes an absolute bar to the second action, not only as to every matter which was offered and received to sustain or defeat the claim, but as to any other admissible matter which might have been offered for that purpose. Cromwell v. County of Sac, 94. U. S. 352.

If each new construction of each step in a title, wmcn may in -the course of litigation be insisted upon,.constitutes a new cause of action, not quieted by the previous judgment, because not fully discussed in the opinion of the court, then there must be as many demands as there may be possible constructions of each muniment of title, and no conclusive judgment can be pronounced until the last possible argument had been discussed and overruled in the opinion of the judge who directs judgment.

If, however, it be assumed that the rule, res adjudioata, ought not to estop the presentation here of the defendants’ claim that Tacy’s will exercised the power inter vivos, does the proof submitted show that there, was, in fact, such an exercise of the power ?

In the will of Tacy appears this clause, which is claimed to have been an inter vivos execution of the power:

“I give, bequeath and devise all my property, both real and personal, wherever situate, and whatever the same may be, to my nephew, Charles I. Wooster, * * * to him and his heirs forever.”

The will itself makes no reference to any exercise of the power, nor to Benjamin’s will or property, nor to any estate whatever other than to Taey’s own property.

It was accepted at the hearing that it has been finally established by the court of appeals in the above-cited judgments that under the true construction of the will of Benjamin I). Cooper, the power of disposition given to his wife, Tacy, was limited to be exercised by her inter vivos. No mode in which the power should be executed was prescribed by Benjamin’s will, and it is conceded that it could have been executed by a simple writing given inter vivos, expressing the intent of the donee. Cueman v. Broadnax, 8 Vr. 512; 4 Kent. Com. *330.

At the hearing the defendant "Wooster was permitted to introduce all the testimony he offered for the purpose of proving that Tacy Cooper did in fact execute the power by an act done by her inter vivos. The only claim made of such an execution of power was that Tacy exercised it by the making and delivery of her will to Mr. Wooster, who was therein named as sole executor.

It seems to be entirely settled that a general devise by the donee of a power, in which the testator refers to the property devised as his property, will not be held to. have been an exercise of the power. Molton v. Hutchinson, 1 Atk. 558; Andrews v. Emmot, 2 Br. Ch. C. 303; Lowes v. Hackward, 18 Ves. 171. No express recital of the power is however required, if the devise or other act done in execution of the power, shows that the donee, in acting, had in view the subject of the power and intended to act with relation thereto. Munson v. Berdan, 8 Stew. Eq. 378. This intention may be collected from attending circumstances, as that the will includes something the testator had not, otherwise than under the power, or that a part of the will would be wholly inoperative unless applied to the power. Standen v. Standen, 2 Ves. 590; Bennett v. Aburrow, 8 Ves. 616; Lewis v. Lewellyn, 1 Turn. & R. 60; Napier v. Napier, 1 Sim. 28; Bradish v. Gibbs, 3 Johns. Ch. 551; Meeker v. Breintnall, 11 Stew. Eq. 356.

It is "proven that Tacy was not, in her own right, the owner of any real estate, and it is contended that, under the principle above declared, there is no property upon which her will can operate save in execution of the power, and that it must be held to be an exercise of the power.

It is not so clear, as the learned counsel for the defendant contends, that a general devise of lands by the donee of a power, who owns no lauds at the date of the will, must, in New Jersey, be held to have been made in view of the power and with an intention to execute it. The theory upon which the above-recited cases go, is, that the testatrix must have contemplated the execution of the power, because when she made her will devising real estate she had no land of her own, and that within the power was the only land which she had at her disposal, and therefore she intended by the devise to execute the power.

This theory had support as indicative of the testator’s intent at the time of making his will, so long as the state of the law was such that a devise passed only those lands (whereof the testator died seized) which he owned at the time of the making of his will. Smith v. Curtis, 5 Dutcher 352. This condition of the law was, however, changed by the statute of 1851 (Gen. Stat. p. 3761 § 24), which declared that lands whereof the testator died seized, though acquired after the making of a will, should pass by a general devise unless a contrary intention was expressed. This statute destroys the hypothesis upon which the above-stated theory depends, for since a general devise will now pass not only the lands' left by the testator, which he owned at the date of his will, but also those which he acquired after that date, it is no longer true that the will of a donee of a power having, at the time of making his will, no lands other than those disposable within the power, would be inoperative unless applied to the power. The will may now operate at the time of the testator’s death upon lands not within the power, which he acquired after the making of the will. The testator by his general devise may have intended to devise such after acquired lands, and as this possibility satisfies all the provisions of the will, without applying it to the power, it can no longer be maintained that a testator, who is the donee of a power, must, ex necessitate, be held to have intended to execute the power when making £ general devise of land.

It is, however, entirely settled that there must be strict compliance with the conditions which the donor of the power annexes to its-exercise. 4 Kent Com. *330. Benjamin D. Cooper, the donor, whose will created the. power which it is claimed Tacy Cooper executed, prescribed that the power should be exercised! by Tacy during her life, and he had declared that all of his property which should remain at her death undisposed of should go according to certain other gifts set forth in his -will.. -

The substantial question to be determined in considering'this-" case on its merits, is whether an instrument which declares on. its face that it is a will, disposing of the testatrix’s property,, which was by the testatrix published as her will, in the form, and with all the formalities of a will, and with a manifest purpose to make a will, which has not on its face, or in the attending, circumstances, a single characteristic of an inter vivos appointment,, and which may have full operation as a will of the testatrix’s, own estate, can by construction alone be held to have been am inter vivos appointment.

The donor required that if Tacy disposed of his property it should be by an inter vivos appointment. When the exercise of such a power is set up to establish the interest of one party and to defeat that of another, it is clear that the party asserting its exercise must, in whatever form the execution is expressed,, show that the donee intended tp„ e'xecute. the power, according to the conditions of the donor’s gift. If Benjamin required her to execute it inter vivos, and she, by a writing, intended and' believed she was executing it by her will to operate after her death, the donee never had any purpose to execute the power within the period which the testator had prescribed. There i& a wide variance between the exercise of a power by an appointment inter vivos, and by an appointment, by will. If Tacy appointed at the time she executed her will,’ by the mere act of making it, then the fee irretrievably passed to Wooster at the-moment Tacy executed her will, but if she, in making her will'1 in Wooster’s favor, attempted to exercise the power by will, she must have intended that nothing should pass to him until her death, and meanwhile she retained the entire control of the situation, for she might, at any time during her life, revoke her appointment by will and appoint to someone else. The difference between the two modes of exercising the power is so radical that if the acts which Tacy did, show that she intended to exercise the power by her will, operating as a will after her death, it is difficult to see how such an execution can, by construction, be held to have been the making of an appointment inter vivos, for this would ascribe to her the doing of an act not within her intention. The fact that Tacy had no power to appoint by her will is no reason for holding such au appointment to have been an inter vivos execution. Her act, intended by her to operate after her death, cannot be converted by a court into an act operating immediately, for this would be an execution of the power, not by Tacy but by the court. She might have been willing to exercise the power by will operating after her death, but who but herself can say whether she would have been willing to make an appointment operating instantly at the time she executed her will? The circumstances of this case show rather a non-execution of the power by Tacy, in accordance with the terms of the gift, than an intended and defective execution of it.

There is a class of cases in which, when an attempted execution of a power is shown, which is defective, equity will supply the defect in favor of parties for whom the donee is under some legal or moral obligation to provide an execution of the power, such as purchasers for a valuable consideration, creditors, or the wife or child of the donee, when such aid will not, under all the circumstances of the case, be inequitable to other persons. The whole subject is expounded and the decisions are collated in 1 White & T. Lead. Cas. *227, in the notes to the case of Tollet v. Tollet, 2 P. Wins, 489.

If the making of Tacy’s will should be deemed an attempted but defective execution of the power, and the aid of this court be invoked in favor of Mr. Wooster, to remedy the defect, it is at once answered that he is not within any of the classes of persons for whose benefit this court may be moved. There is no pretence that any valuable consideration passed from him to Tacy as an inducement to the exercise of-the power. He makes mo claim to be a creditor. He is her nephew, but in Strode v. Russell, 2 Vern. 621, 625, and in Marston v. Gowan, 3 Bro. Ch. Rep. 170, it was admitted that the aid of this court would -not be extended in fayor of nephews to aid a defect involving the same principle. See, also, Chapman v. Gibson, 3 Bro. Ch. Rep. *231. Mr. Wooster stands to the donee and to the exercise of the power as a mere volunteer. There was neither legal nor moral obligation upon the donee to exercise the power in Jais favor.

That Tacy was required to execute the power during her life •has, as stated, already been adjudged to have been shown by the donor’s gift over of what might remain undisposed of at her •death. If she attempted to exercise the power by her will, the • execution could only come into operation after the expiration of 'the period during which the donor had required that she should execute it, and after his own gift over had, by reason of Tacy’s default, vested in the succeeding beneficiaries. To aid such a supposed defective execution in equity, would be to defeat the -donor’s gift over. Equity will not extend its aid to make efficient an exercise of a power which came into operation after the •period within which the donor had prescribed it should be executed. Cooper v. Martin, L. R. 3 Ch. App. 47.

No equity is shown which should induce this court to interfere in favor of Mr. Wooster and against the succeeding bene-, •ficiaries under Benjamin D. Cooper’s will.

Under the views expressed, it was Benjamin’s will and not 'Tacy’s which disposed of his estate remaining at her death. The proofs show that the defendants Charles I. Wooster and William T. Cooper, executors of Benjamin D. Cooper, filed an inventory and appraisement of his estate, amounting to $7,291.70, including as part thereof the stock, crops and farming utensils. The debts, and some but not all of the money legacies, have been-paid. Under Benjamin’s will, Tacy Cooper was entitled during her life to keep, use, sell or dispose of his whole estate, but of -such of it as should remain at her death, he directed his executors to dispose by giving Several specific legacies which have been delivered, and the residue they were to sell. The net proceeds arising from the sale of the farm, and the crops, stock and farming utensils, the executors were directed to pay in equal proportions to the testator’s niece and four nephews, William-Cooper, Isaac Cooper, Anna J. Cooper, William T. Cooper and Warner Cooper.

It is in this fund to arise from the sale of the farm, tne crops, stock and utensils, that the complainant in the cross-bill and those sharing these proceeds with him, are interested, and it is-as to these proceeds that he and they are entitled to relief. The-ascertainment of this interest in the personalty will require an accounting by the executors for Benjamin D. Cooper’s estate as-it came to their hands, showing whereof it consisted, what portion was used to pay his debts and expenses of settlement of his-estate, wha.t portion of the crops, the stock or farming utensils-(if any) was so used, what portion was disposed of by Tacy in her lifetime, and what remained at her death. In this residue-the complainant, Isaac Cooper, and William Cooper, Anna J.. Cooper, William T. Cooper and Warner Cooper or their representatives are, under Benjamin’s will, entitled to share equally.

The same persons are the beneficiaries of the proceeds of the-sale of the farm. It appears that by reason of the location of the farm, near to a suburban neighborhood, and its increasing value, it will be more profitable to the beneficiaries that the-executors’ power to dispose of it for their benefit, shall be exercised by a conveyance to them as tenants in common in fee,, according to their several interests in the proceeds, than by a sale- and the division of the purchase-money. The power given is to-sell and dispose of the farm for the best price that can be gotten therefor; the proceeds, after costs and charges, to be paid to the-beneficiaries named in equal shares.

The fee in the farm has descended to and is held by the heirs-at-law. It can only be divested and applied to the uses directed by the testator, by the exercise of .the power of sale given to the-executors by the testator’s will. The executors in assuming the burden of the execution of that will, undertook, as part of their -duty, the execution of this power. It is in the nature of a trust, for the benefit of the persons named by the donor, which this -court will control and compel the executors to perform. Osgood v. Franklin, 2 Johns. Ch. 20. The purpose of the donor to give the proceeds of the farm to the beneficiaries named, cannot be effected in any other way. A bill against the heirs to enforce such a power was sustained in equity, after the death of all the donees of the power. Garfoot v. Garfoot, 1 Ch. Cas. 35; S. C., Freem. *176; see, also, Locton v. Locton, Ib. *136.

The beneficiaries all appear, and for the reasons stated, join with the complainant, Isaac Cooper, in electing to take the farm iby conveyance as land, rather than the proceeds of sale by division among them. There has been as yet no conversion under the power of sale. They all take the same shares, the same interest, by the same mode. USTo discretion is by the power given to the trustee, nor does the exercise of an election by the beneficiaries to take the farm as land, appear to conflict with any •purpose of the donor in making his gift to them. In such cases equity will permit the beneficiaries to take the land, and will direct a conveyance to be made to them by the donees of the power, according to their respective shares. Craig v. Leslie, 3 Wheat. 578; Morse v. Hackensack Savings Bank, 2 Dick. Ch. Rep. 285.

The complainant in the amended cross-bill is entitled to relief to the extent above indicated, and a decree will be advised accordingly.