text:
    Clara A. Woolston v. William I. Pullen et al.
    [Decided December 3d, 1917.]
    1. It is the duty of a life tenant to keep down taxes and keep the premises in such repairs as will preserve the property from decay, to the extent at least of the rental value of the premises, and where he neglects and refuses so to do a receiver will be appointed to collect the rents sufficient in amount to pay the taxes and defray the expense of necessary repairs.
    2. Tenants in, common are equally obligated to pay all the taxes upon the common property, and where one of them redeems the property from taxes or discharges a lien upon it, he has a right to contribution from his cotenants according to their respective shares.
    3. Where lands are held in common by a life tenant and by others in fee, and such tenants have neglected to pay taxes and make necessary repairs to the common property, they are all guilty of permissive waste, and the persons holding the remainder after such life estate in an undivided part may, where they are defendants in a partition suit in equity, have a receiver appointed to collect the rents, to pay the taxes and to cause all necessary repairs to be made, paying for the same out of the rents.
    On bill for partition. On final hearing on bill, pleadings and proofs.

      Mr. J. Conner French, for the complainant.

      Mr. Martin P. Devlin, for the defendant J. Harry Pullen and others.

      Mr. Henry M. Hartman, for the defendants Edna A. Ambrose and Albert Y. Ambrose.
    This matter was referred to William J. Baekes, Esquire, advisory master, who filed the following conclusions:

      The bill is filed for the partition of lands of which Annie I. Ferris died seized. By her will admitted to probate November 15th, 1909, she disposed of her; property as follows:
    “I give and bequeath unto Anna M. Chase $500.00, Sara Perris $300.00, Addelial Gute $100.00 and Della Wescot $100.00, the rest to be divided equally between Cora A. Woolston, William I. Pullen and J. Harry Pullen. $2,000.00 to be taken from J. Harry Pullen's share and to be paid to Edna A. Ambrose, and he, J. Harry Pullen, is to have the interest on his balance on his share as long as he lives, and then it is to go to his children, one half to Edna A. Ambrose, and she is to get this right after his death, and the other half is to go to his sons Edgar Pullen and Harry Pullen.”
    No question is raised as to the title or fights of the parties in the lands. Edgar Pullen, one of the remaindermen, died after the testatrix. His interest descended to Harry Pullen, his brother of the whole blood, whose sister, Edna A. Ambrose, is a child of J. Harry Pullen by his second wife, and is therefore of the half blood and not entitled to inherit. The real estate consists of nineteen lots on each of which is erected a dwelling-house. The defendants Edna A. Ambrose and Albert V. Ambrose, her husband, filed an answer and counter-claim in which they charge the complainant and the defendants William I. Pullen and J. Harry Pullen with having collected all the rents, issues and profits of the land, and that although it-was their duty to protect the properties from waste and damage and to maintain them in the-state of repairs equivalent to that in which they were at the decease of the. testatrix, they did not do so, but permitted the properties to be wasted by neglecting to repair them and permitting them to so deteriorate that they are being damaged and wasted by the elements, in wanton disregard of the interests of the tenants in remainder; that they have-greatly depreciated in value and are considerably less marketable and tenantable, and that they have permitted large arrearages of taxes to become due, which greatly hazards her interests.
    The prayer of the counter-claim is threefold—
    (1) That the tenants be required to account to them for waste and depreciation of the properties caused by their failure to- keep them in as good repair as they were when they took them.

      (2) That if an actual partition be directed that a receiver he appointed to collect the rents and care for the properties and place the properties apportioned to J. Harry Pullen in a state of repair equal to that in which they were at the time of the death of Annie I. Perris, and he be directed to discharge the liens and encumbrances thereon, or if the property be decreed to be sold that the equities of the parties be adjusted by this court, and that Edna A. Ambrose, when her share is apportioned, be allowed and given credit for the loss resulting from the waste.
    (3) .That a receiver be appointed to collect the rents, issues and profits of all the real property of which the testatrix died seized, and that he be directed by this court to make necessary repairs and pay the taxes and other liens which have accrued against the same.
    The remaindermen Harry Pullen and Edna A. Ambrose, and the latter’s husband, Albert V. Ambrose, are made defendants, because by section 26 of our Partition act of 1898 partition of lands may be made, notwithstanding any share may be limited over after an estate for life, or any estate therein, and such partition shall bind all tenants of such -share in remainder, reversion or expectancy, who shall be entitled only to that part of the lands partitioned which may be set off in severalty to the share upon which such remainder or expectancy is limited. In all cases where such remainder, reversion or expectancy, is limited over to any person in being the act requires that such person shall be served with the like notice or process as may be by law required to be served on the owner or tenant of such share in such proceedings or partition.
    All the tenants in common, as well as Harry Pullen, the other remainderman, in their replications admit that the taxes against the properties for the years 1915 and 1916 remain unpaid, but deny that the properties have been wasted and damaged, or that they have been permitted to so deteriorate that they are being damaged and wasted by the elements. They allege that the properties are in a good state of repair and are tenantable.
    The testimony taken at the hearing satisfactorily proves that when testatrix died the properties were in good condition, but that they have since been neglected and are now in much need of repairs; that the bare wood shows through in places on some of them, and that generally they are suffering for want of paint; that the roofs on some need retinning, and that the masonry or brickwork on nearly all needs repointing.
    It is the duty of a life tenant to keep- down taxes- and keep the premises in such -repair as will preserve the property from decay, to the extent at least of the rental value of the premises, and where he neglects and refuses so to do a receiver will be appointed to collect the rents sufficient in amount to pay the taxes and defray the expense of necessary repairs. Murch v. J. O. Smith Manufacturing Co., 47 N. J. Eq. 193. Where a life tenant neglects to pay taxes subjecting the estate to sale therefor, with accumulated costs and penalties and permits the premises to decay for want of repairs, it must necessarily diminish the value of the estate, resulting in lasting damage to the inheritance. No distinction can be drawn between the life tenant’s duties to pay taxes and keep up the repairs. Eor failure to discharge either of'these duties he is guilty of permissive waste. ■
    Counsel concede that it is the duty of a life tenant- to pay taxes and keep up repairs so as to prevent waste, but they strenuously contend that where, as here, the premises are held in common by a life tenant and by others in fee, there is no such duty imposed upon the tenants in common in fee. It appears to me, however, that as none of the tenants in common can certainly tell which part of the premises is his own, it is the duty of all to preserve the remaindermen’s inheritance.
    Tenants in common are equally obligated to pay all the taxes upon the common property, and where one of them redeems the property from taxes or discharges a lien upon the common property, he has a right to contribution from his cotenants according to their respective shares. Roll v. Everett, ‘73 N. J. Eq. 697.

    The common law made it the duty of tenants in common to contribute to tire reparation of houses, mills, &c., held in common, and in case anj^one refusing the other was given his writ de repwratione facienda, to compel him to compliance (Go. Litt. 20'ffb); and now in an action at law one tenant in common who has made necessary repairs upon the cómmon property can com■pel his cotenants to contribute their proportionate share of the expense, but to sustain his action he must show a request to unite in such repairs and a refusal. Louvalle v. Menard, 1 Gil. (i6 Ill.) 39; 41 Am. Dec. 161; Mumford v. Brown, 16 Cow. (N. Y.) 475; 16 Am. Dec. 440; Calvert v. Aldrich, 99 Mass. 74; 96 Am. Dec. 693; Wig gin v. Wig gin, 48 N. E. 561; 80 Am. Dec. 192. Although a tenant in common, who makes necessary repairs upon the common property without the consent of his cotenants, may not be able to maintain an action at law against them to compel contribution, it is a well-settled principle of equity jurisprudence that such contribution may be compelled in equity under certain circumstances. Pom. Eq. Jur. § 1240; Story Eg. Jur. §§ 1236,1287; Jenkins v. Jenkins (N. J.), 5 Atl. Rep. 134• The doctrine of contribution in such case rests on the principle that where the parties stand in equali jure, equality of burthens become equity. 4 Kent Com, 870. .

    We have seen that it is not only the duty of the life tenant to pay taxes and make necessary repairs, but it is also the duty of tenants in common mutually to pay taxes and make necessary -repairs. Therefore, had J. Harry Pullen, or any of the tenants in fee, paid the taxes and made the necessary repairs, his co-tenants could have been made to contribute their just share in these proceedings. It is true that' one tenant in common is not 'more in default than his cotenants for neglecting to make necessary repairs, but where one of' such tenants in common holds but a life estate in an undivided part the remaindermen of such undivided part have rights in the premises such as cannot be disregarded. Should the remaindermen in the present case come into possession of their estate immediately, their''interests would suffer because Of the waste. No part of the repairs now necessary should be placed upon them after they come into such possession, nor should they be in present danger of having then to make such repairs. The properties are suffering for want of repairs and the tenants in common are all equally guilty of neglecting to make them. Hnder such circumstances, justice and equity between the tenants in common and the remainder-men require that the taxes should be paid and the properties put
      in good repair, and that the expense thereof be borne by the tenants in common equally.
    There is no doubt that equity can grant this relief in partition. It is an established principle that a court of equity, in decreeing partition, does not act ministerially and in obedience to the call of those who have a right to the partition, but founds itself on its general jurisdiction as a court of equity, and administers its relief ex cequo el bono, according to its own notions of general justice and equity between the parties. It will, therefore, by its decree adjust the equitable rights of all the parties interested in the estate, and see to it that partition is made accordingly. Story Eq. Jwr. § 656b. If improvements have been made by a tenant in common, suitable compensation will be made to him on the partition, or the part on which the improvements are will be set off to him. Ibid. See, also, Brookfield, v. Williams, 2 N. J. Eq. 841, and so where one of the tenants has wasted part of the land, the part so wasted will be set off to him. Polhemus v. Emson, 80 N. J. Eq. 405.

    Counsel have been unable to refer me to a case where the question here raised has been discussed and settled, nor have I been able to find one, but the facts alleged in the counter-claim and established by the proofs constitute in my judgment sufficient grounds for the relief sought. This relief, being but an incident to a partition proceeding, and all the parties being be-' fore the court, should be granted.
    The defendant is entitled to the protection of her estate in remainder, and out of the rents to have the properties restored to the condition they would have been in had the tenants in common not been guilty of permissive waste. A decree will be advised appointing a receiver to collect the rents, to pay the taxes now liens against the properties out of the rents, and to cause all necessary repairs to be made, paying for the same out of the rents. After such taxes have been paid and the repairs made a final decree will be advised directing a partition to be made of the properties among the parties according to their respective rights and interests therein, as appears by a report heretofore made by me. ,
    If the parties are unable to agree as to the necessary repairs to be made by the receiver, he will be directed by the court.
   Walker, Chancellor.

A decree will be made in conformity with the advice contained in the conclusions of Advisory Master Backes, which are hereby adopted as the opinion of the court.


source: Caselaw Access Project

author: Stevens, V. C.

license: Public Domain

text:
    Friedrich Wiebke v. Joseph E. DeWyngaert.
    [Decided July 5th, 1917.]
    1. A defendant in a foreclosure suit who purchased the property foreclosed is bound by the decree, and cannot question the amount it finds to be due, but may show he is not liable for the deficiency.
    2. He should have set up in his answer in detail the fraudulent representations upon, which he relied in taking the mortgaged property.
    3. If the only representation was the opinion or unauthorized statement of the agent as to the legal effect of a writing which defendant signed, this was not a fraudulent representation by the company.
    On. motion to strike out parts of answer.

      Mr. Hugo Werner, for the motion.

      Mr. George B. Clymerj contra.

   Stevens, V. C.

This is an application to strike out parts of an answer. The situation is this: The King-Marsac Company mortgaged to complainant and then sold the mortgaged premises to defendant who is alleged to have assumed payment of the mortgage. Complainant foreclosed. The decree adjudged $3,030 to be due on the mortgage debt. There was a sale on execution from which $500 was realized. Complainant now sues for the deficiency. His right SO' to sue was adjudged on the application to strike out the bill. The defendant, who as owner was defendant in the former suit, is concluded by the decree therein, as far as the de7 cree extends. He cannot question the amount decreed to have been due, but he is not concluded from showing that he is not liable for the deficiency.

. In view of the former adjudications the so-called first defence is stricken out and also paragraphs 1, 2 and 10 of the second defence.

Paragraph 3 is ambiguous. The denial may relate to the fact of acceptance or to the written endorsement.

It is an elementary rule of pleading that if defendant answers he must answer fully. This rule has not been observed in the so-called fourth defence. The fraudulent representations relied on should have been set forth if they were other than the statement that the officers and agents of the corporation represented to the defendant that he would .not be liable on his assumption unless he was the owner of the premises at the date of the maturity of the mortgage. The answer should have stated what the representations were; who made them and by what authority. If the only misrepresentation was the opinion or unauthorized statement of some agent of the company as to the legal effect of the writing which, defendant signed, that was not a fraudulent representation made by the company.

, Paragraphs 1 of the third defence and the fifth defence are to some extent repetitions. The second is broader than the first. If defendant relies upon two separate releases given at differefit 'times, he should have so stated. Paragraph 1 should be stricken out and the so-called fifth defence may be amplified to correspond to the fact.

I know of no authority for dividing the answer into separate defences like separate pleas at law, as defendant has done in this case. It can only lead to repetition and prolixity and is not warranted by section 49 of the Chancery act of 1915.

The objectionable paragraphs will be'stricken out and the defendant given ten days in which to file a further answer.


text:
    Luman W. Lawrence v. Jubson C. Prosser, executor, et al.
    [Decided August 15th, 1917.]
    1. Evidence held insufficient to show fraud in act of deceased in securing deed from her nephew of his interest in his uncle’s estate.
    2. Where the deed was given under an oral agreement to make a will providing for the grantor, and such will was made, and afterwards changed to his detriment, the contract was sufficiently specific to warrant equitable relief. ,
    S. The fact that the agreement was completed at a later date does not prevent the consideration of the entire transaction as one contract.
    4. The fact that such completion of the contract is to be accomplished by making a> will, does not make the contract revocable.
    5. On suit for an amount paid by the nephew in performance of this contract, he cannot both recover such amount and have a decree enforcing the contract. ' '
    On bill, &c.

      Mr. Scott' German and Mr. Frank E. Bradner, for the complainant.

      Mr. Hugh B. Reed and Mr. Theodore D. Gottlieb, for the defendant, Prosser.

      Mr. Edward Q. Keasbey, for the-town of Bucksport.
   Stevens, V. C.

The complainant seeks to have a transfer of, an interest in property, made by him to his aunt, Mrs. Dean, annulled, on the ground of fraud.

In April, 1911, Luman Warren, a resident of Bucksport, Maine, and an uncle of complainant, died intestate, leaving an estate, consisting of personalty and realty, valued at about $60,000. His heirs and next of kin were a sister, Mrs. Dean, and three nephews, John, Stevens and Lnman Lawrence. Mrs. Dean was entitled to one-half of his estate and his three nephews, each io one-sixth.

The complainant, Lnman, who is about fifty-five years old, had up to March, 1905, lived with his brother John near Boston, but, as he says, being out of work, he, at his aunt’s invitation, came to live with her in Newark. The family then consisted of Mr. Dean, who was engaged in the business of keeping a restaurant, and of Mrs. Dean. They had no servant and Luman, from the time he went there, took the place of one. He did everything that.a maid of all work would ordinarily have done. His aunt’s health was poor and she herself could do but little. He lived with her in this way up to the time of her death in June, 1916. Mr. Dean predeceased his wife by a few months. She is thus described by the Bev. Dr. Waters:

“She was domineering, shrewd. She impressed me as a woman in whom there was a struggle going on of unusual strength between the good and the evil in her. At times she was very quiet and of a very gracious personality, and other times she was extremely hard. On one occasion she ordered Luman out of my presence and' her presence, as I don’t think I would order a dog away from my premises. * * * There is an old England term that says she was very tight. She had an obsession, I think, as to money affairs. * * * It was her inordinate, well, greed, if I may so call it, that was the controlling impulse in the woman’s life, with a certain intense hatred which she exhibited — which she either felt or assumed to feel toward her relatives.”

Of Luman he says that he

“always impressed me as extremely docile, obedient; as a person who had subordinated his own mind and will to the direction and control of Mrs. Dean.”

This description of the two principal characters in the case is borne out by the evidence of the other witnesses.

Shortly after the death of Luman Warren, the uncle, at Bucksport, Mrs. Dean and her nephew went there.and conferred with Mr. Smith, an attorney, who subsequently became the administrator. A dispute at once arose, as’ to the administration,-between Mrs. Dean and her Massachusetts nephews, which produced a bitter feeling between them. Mrs. Dean wanted what she regarded as a controlling interest in the estate and proposed to Luman that he assign his one-sixth interest to her. She did this for two reasons, first, to secure- control and second, to protect Luman against his brothers, who, as she thought, rightly or wrongly, would, if they had the opportunity, play upon Luman’s easy going disposition and strip him of his property. Mr. Smith, who is an intelligent and disinterested witness, says:

“I can recall that he (Luman) denounced his brothers in unmeasured terms and Mrs. Dean was equally as bitter against them as Luman was at the time. * * ® She (Mrs. Dean) stated that she was afraid that if his brothers, Stevens and John, got his share of the Luman Warren estate into their hands, they would turn him out; cast him adrift upon the world. * * * She stated to me (his evidence shows that the statement was made in Luman’s hearing and was approved by Luman) that he was possessed of certain infirmities and that his brothers had turned him out and he went on there (to Newark) and she took him in and made a home for him, provided for him, and intended to provide for him as long as he lived and make ample provision for him in her will.”

Mr. Smith drew a deed from Luman to his aunt, by which he conveyed to her his undivided sixth interest in the land and personal estate derived from his uncle. This deed was executed at Newark on August 2d, 1911. I have no doubt whatever, notwithstanding Luman’s present denial, that he understood the purport and object of it and that he agreed to it on the faith of his aunt’s promise to “provide for him at her home as long as she lived” and amply to provide for him by her will “after she was dead and gone.”

Mr. Smith’s statement of the bargain is corroborated by Mrs. Dean’s letters and acts; by witnesses in the best position to remember.; and, in the end, by Luman himself.

On May 2d, 1913, she and- Luman executed mutual wills. He gave his property to her and she, by a codicil to a former will, after giving her husband (who, as I have said, predeceased her) a life interest, devised and bequeathed her estate to Dr. George W. Clement, of Boston, in trust to invest and' pay the income periodically to Luman during his natural life and at his death to purchase the necessary land and erect thereon a suitable building to be used as a public hall for the inhabitants of Bucksport. Shortly before, under date _ of April 20th, 1913, she had written to'Dr. Clement, telling him that words could not express her gratitude toward him for expressing his willingness to act

“when the time comes; for it is my duty to provide and protect my sister’s son. .* * * Luman’s inheritance from his uncle will be in the neighborhood of $14,000.”
She .apparently overrates the amount, the evidence indicating that it is from $10,000 to $12,000.
“Luman has sold to me all his claims and I shall in return give him all my property during his life, under guardianship, that he will be cared for and not a prey to scheming friends.”

This letter appears to me to be conclusive evidence that Mrs. Dean did not regard the transfer in the light of a gift, but as the consideration for a binding promise on her part. To the Rev. Dr. Waters she spoke in the same strain.

“She informed me that she and Luman had exchanged wills. Luman had willed his property to her and she hers to him; that it was her purpose to see. that her property reverted to Luman when she passed away, subject to restrictions; she did not think that he was as capable as he might be, on account of his deafness or inexperience to take charge of the property and she was going to will it so that he would have the use of it subject to restrictions; she was afraid some sharp fellows might get the property away from Luman and she wanted him to have the benefit of it during his life.”

On February 29th, 1916, she apparently, from mere caprice, revoked her disposition in Luman’s favor and gave him, instead, a yearly income of $600 during his life.

Luman, when cross-examined at the close of the case, after denying that the deed of August 2d, 1911, was read to him before he signed- it, testifies as follows:

“Q. But you knew when you signed it that you had signed a deed?
“A. "Well, 1 knew, as you might say, that it was a paper for that purpose ; * * * my aunt told me it was to sign that paper to hurry up the. sale of the property and that is all that I knew.
“Q. She (Mrs. Dean) said it was a deed, didn’t she?
“A. A deed or a paper; whatever you might call it.
“Q. And you knew, as a matter of fact, it was a deed?
“A. I wouldn’t say as a matter of fact that I -knew it was a deed; but I knew she said it was a paper where that would be done to hurry up the settlement of the property; I didn’t know that I was throwing my stuff away. * * *
“Q. You never questioned the validity of that act until you filed your bill (Aug. 22, 1916) ?
“A. Never did question it; didn’t know anything about it. * * *
“Q. Didn’t you know, as a matter of fact, that your aunt had provided for you after her death?
“A. Why — after her death — why yes; I saw what it said in the will; that is all I see; all I knew.
“Q. And was that satisfactory to you?
“A. Good God; no, it wasn’t.
“Q. When did this dissatisfaction on your part first manifest itself?
“A. When did it? Why, the first time I knew it was said in the will. [The witness is here evidently referring to the second will, which cut him down to an income of $600 a year.]
“Q. What had you expected?
“A. I expected I had the whole dam thing.
“Q. What led you to that expectation?
“A. That was because the — according to this will that she and I made; by golly, that was what it was.
“Q. Well, then, you did expect that she had made provision for you; only you expected a better provision than manifested itself; isn’t that so?'
“A. Well, that might he so- — and another thing — according to that will there, what she drew — I drew in her favor and my favor, I was to have the whole' thing; that is what I supposed I done.
“Q. And was that your agreement with her, that you were to have the whole thing?
“A. That was the agreement, right straight down, when that will was made out.”

The two wills of May £d, 1913, were drawn by Judge Raymond. Mrs. Dean and her nephew went to his office together and it is perfectly obvious that their contents were known to both and satisfactory to both. 'The will of Mrs. Dean was evidently intended to be in fulfillment of her promise made in Mr. Smith’s presence, in the summer of 1911, that, in consideration of the transfer of Luman’s interest in his uncle’s estate, she would amply provide for him.

And the bequest in the will of 1913 was an ample provision. It would, in the events that happened, have given him a clear yearly income of over $£,000 — much more than an equivalent for the interest he had turned over. The bequest in the will of 1916 was not an'ample provision.

What induced Mrs. Dean to change her will just before she died does not appear. Human continued to be her faithful servitor up to her death; It is true that between the time of the making of the mutual walls and her death, her estate had been augmented $20,000 or thereabout by what her husband had left her, but even without this addition Human would have received three times as much as she finally gave him.

The complainant has put in evidence letters showing that Mrs. Dean was trying to conceal from her Massachusetts relatives the true character of the transfer and he has produced witnesses who speak of her casual declarations to the effect-that Human’s interest had been turned over “for her to take care of.” These do not, as it seems to me, throw any -additional light upon the case. The transaction stated in its simplest form was obviously this: Mrs. Dean wanted to control as much of her brother’s estate as she could and she wanted to protect Human against himself; to protect him in the way that she thought best. In point of fact, up to within three months of her death, her plan to provide for him was greatly for his interest. He had no one dependent upon him, was not likely to marry and would be better off with a large income, than a small principal. During the period between August, 1911, and February 29th, 1916 — the date of the making of the last will — - there is no evidence that she had the slightest intention of perpetrating a fraud upon him. The equivalent she intended to give was more than equal in money value to what she had received. The injustice that he had suffered, if it be an injustice, arises from the change in his aunt’s provision for him. On these facts it seems quite impossible to find that the deed was fraudulently obtained.

It is argued, that the court should annul the transfer on the principle of Slack v. Rees, 66 N. J. Eq. 447. This and similar cases do not apply, for the reason that tins is not a case of an improvident gift but of a contract which, in terms, stipulated for a full equivalent. Human was to be amply provided for. While lie was no doubt weak and yielding and his aunt, imperious, 'there is not the slightest evidence that he 'did not possess sufficient capacity to make a bargain with her.

This brings me to the question whether this court can give relief and what that relief ought to be. The question is not whether the wills of May 2d, 1913, are binding because executed on the same day and parts of one transaction, but whether Mrs. Dean’s will, made in fulfillment of her promise and based on adequate consideration, is not binding upon her. The evidence justifies the inference that the provision was made in fulfillment of her promise and that it was accepted as such by the promisee. The executor and the town of Bucksport cite Eggers v. Anderson, 63 N. J. Eq. 264, as a controlling authority. As I understand the 'decision, Mr. Justice Dixon máde a distinction between a promise, based on valuable consideration, to make a specific provision by will, and a promise merely to make a will; a promise induced by charitable acts of the promisee performed and to be performed; acts which the promisee had done and contemplated doing but without legal obligation resting upon her to continue them. He concedes that a promise to make a specific provision' by will, supported by consideration, may be binding; and such is the current of authority.

Schouler, in his book on Wills and Administrations, section 454, says that a court of équity will specifically enforce a contract to execute a will after a certain tenor, when the contract is founded upon valuable consideration. It does this by fastening a trust upon the estate of the deceased, not only where land is concerned but personalty as well. One of the earliest cases (Dufour v. Perira, Dickens 420, A. D. 1769) was a case of trust declared in respect of certain bequests. In a ’ note to section 746 of Pom. Eq. Jur. the author quotes with approval what is said in Bolman v. Overall, 80 Ala. 451. The passage is entirely apposite to the present situation.

“All the authorities agree that one may for a valuable consideration renounce the absolute power to dispose of his estate at pleasure and bind himself by contract to dispose of his property by will to a particular person and that such contract may be" enforced after his decease, either by an action against the personal representative or in a%)roper case by a bill in the nature of specific performance against his heirs, devisees or personal representatives.'’

This is the doctrine of Johnson v. Hubbell, 10 N. J. Eq. 332, a leading case on the subject. An action at law for breach of contract would, here, do violence to the intentions of both parties and would not do justice to either. The equitable remedy would effectuate the very trust intended. A promise, based on valuable consideration, to do a lawful act will, if broken, generally, if not always, give rise to some form of action. ' The only question will be whether the relief to be accorded shall be legal or equitable. I take it that if the promise made by A be, merely, amply to provide for B by will, B, if the promise be broken would have to sue at law for damages; but if the promise be to give a particular thing by will — at least such a thing as cannot be adequately compensated for by' damages— and the statute of frauds do not prevent (Maddison v. Alderson (1883), 8 App. Cas. 467) B may sue in equity. As a trust was intended — a trust that would be defeated, if damages were given — the question reduces itself to this: Was the contract sufficiently specific to warrant equitable relief? In the first instance, perhaps, it was not. As made just before the time of the transfer- in August, 1911, it was, merely, “amply to provide."’ But when Human made the transfer and when Mrs. Dean executed her will .and specifically defined the ample provision, in terms satisfactory to both, the contract was completely executed on one side and completely defined on the other and could, therefore, only be varied by the. consent of both. If she had made the will contemporaneously with the transfer of the property and because of the transfer it is clear under the authorities that a contractual obligation would have been imposed upon her. Because she waited awhile, the obligation all the time resting upon her to do the very thing which she did, it does not seem to me that the effect of the transaction, looked at as one whole, is different.

If it be argued that the agreement at the time of the transfer was not complete in all its parts — that the ample provision was not specifically defined — that after having once defined it, she might, within the limits of- her contractual obligation, still redefine it, if she made it ample, the answer is that in view of her circumstances and of what she had received, the second provision was not ample, and so the change was contrary to her obligation. But further, it must be remembered that Mrs. Dean is dead and complainant under a disability fully to testify. In view of the evidence, I think it a fair inference that the kind of provision was from the beginning understood between them and that the will did no more than embody the understanding in a writing. It would be too much to say that because the papers relating to the two parts of this transaction were executed at different times, we are to apply a rule different from that which would have governed, had they been executed at the same time. The different parts of a complex transaction are frequently reduced to writing at different times, but this does not prevent their being considered as one whole.

Again it is argued that because the provision was contained in an instrument in its nature revocable, it was subject to change at the will or caprice of the testatrix. The will was of course revocable, but the agreement to make the provision, being founded on valuable consideration, was not. It was the duty of testatrix to embody it in any will she thought fit to make.

There is an unfortunate complication. Human sued the estate of Mr. Dean while this suit was progressing, and, by the verdict of a jury, recovered not only wages for services rendered in the Dean home, but also the amount of a check for $1,342, part of Human Warren’s estate, that under his nephew’s deed of transfer passed to his aunt. The fact that it was handed over to Mr. Dean, it must be assumed with his wife’s consent and as her agent, 'did not make it part of Mr. Dean’s estate. If Human therefore claims the money he to that extent endeavors to repudiate his transfer. He cannot have the consideration on which his aunt’s agreement was based and at the same time claim the benefit of the trust constituted for his benefit. Counsel have not discussed this phase of the controversy and I will hear them on it.


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    The Improved Building and Loan Association v. Clara H. Larkin et al.
    [Decided August 2d, 1917.]
    1. To protect property against mechanics’ liens a building contract filed must be between parties who in truth, and not in form merely, are the contracting parties.
    2. In this case the contract filed was not between the parties who. were in truth the contracting parties, and therefore does not protect the property from mechanics’ liens.
    3. As a decree in reference to matters collateral to the suit would be void, such matters should not be disposed of in these proceedings.
    4. Where mortgages were made after the commencement of the building, it must be shown that the money advanced on them was actually ap-' plied to the erection of the building in order to obtain priority for the mortgages.
    5. Where some of the money advanced on mortgages made after the building was commenced was used to take up prior mortgages, such advances are not entitled to priority over mechanics’ liens.
    6. A vendor who takes a mortgage for unpaid purchase-money-loses his vendor’s lien.
    On bill, &c.

      Mr. Thomas J. Butter, for the complainant.

      Mr. Joseph E. Steinhardt and Mr. George E. Clymer, for Katchen & Rabinovitz.

      Mr. Ovidio Bianchi, for the Latin American Construction Company and others.

      Messrs. Perry & Grosso, for Clara H. Larkin and others.

      Mr. John A. Bernhard, for W. Dorfman.

      Messrs. Bilder & Bilder, for Ernest C. Lum, trustee.

      Mr. Carl F. Hinrichsen, for Cook & Genung.
   Stevens, V. C.

This is a suit to foreclose a mortgage. -The defendants axe subsequent mortgagees and lien claimants.

The first question is whether the filling of the building contract, dated June 24th, 1914, made by John T. Kelly, with a partnership known as the Latin American Construction Company, operates-to protect the property built upon, against mechanics’ lien claims filed subsequently. The insistence is that the contract was made between parties so related as to bring it within the principle of Young v. Wilson, 44 N. J. Law 157. This case holds that the agreement, the filing of which protects against the lien of other creditors, must be between parties who in verity, and not in form merely, hold towai’d each other the relation of contracting parties.

In April, 1914, David W. Dorfman, Nicholas A. Norelli and ^Daniel J. Scrocco formed a partnership to make and perform contracts for constructing buildings of every sort. They filed with the county clerk a certificate of partnership, which bears elate April 11th, 1914, and which states their business name to be “The Latin American Construction Company.” Dorfman and Norelli were architects, Scrocco was a clerk.

On June 6th, 1914, John T. Kelly entered into a written agreement with J. Frank Larkin, husband of Clara H. Larkin,to purchase for $2,000 the land covered by complainant’s mortgage. Kelly seems to have been a business acquaintance of the partners and so impecunious that he was. unable to pay any money whatever at the time- he agreed to buy. He gave instead his note for $50, endorsed by Norelli. Evidently, the agreement that he made with Mrs. Larkin was intended to promote the plans of the partners. It having come to their knowledge that there were judgments against Kelly, the deed was, with his consent, made to Dorfman, who gave a mortgage of $2,000 to secure the entire consideration money. This deed bears date June 6th, 1914, but it was not acknowledged or delivered until the 'following August.

Notwithstanding the fact that Kelly was entirely destitute of means) on June 27th he entered into a. building c.ontract with the Latin American Construction Company, by the terms of which he agreed to pay $28,000 for the erection of a large tenement-house on the property in question. This contract was filed June 2d, 1914, and work was begun under it before any deed was given. Evidentty, the cost of construction was to be provided for by the construction company, itself possessed of very little money, and by loans to be obtained during the progress of the work. Up to August 6th, 1914, the owner, using that word in the sense of the Mechanics’ Lien act, appeared to be Kelly and the work was apparently being done for him. I sa3 apparently because it is evident that Kelly’s interest was of the slightest. It was so slight that when Dorfman discovered the judgments^ Kelly, ■ at the request of the partners, assigned to him, without consideration, his interest both in the land and in the contract. But this created a complication. Dorfman, as a member of the partnership^ became both builder and owner, and it was feared b3 its counsel that the effect of the filing of, the contract would be nullified. Thereupon the Compaq, so called, which seems to have proceeded as if it were a corporation, passed a resolution stating an agreement that inasmuch as Kelly had assigned his rights to Dorfman, Dorfman,would resign his membership and a new construction contract be made between the company and Dorfman and (I quote its language) “that the amount shall be the same as the one with Mr. John T. Kelly.”

At or about the time of the passage of this resolution Dorfman took an assignment of the Kelfy contract and joined in the execution of a new contract between himself and the remaining partners, Norelli and Scrocco. This was an exact copy of the other except in its date. It was never filed. Norelli says, “I kept to the Kelly contract, the original on file.” It is not at all unlikety that the parties at first regarded the second contract as the one to be deemed in force and, then, in view of the difficulties of the situation, the first; for it appears that they filed the assignment of the first contract three months after they obtained it. Obviously, the persons from whom they hoped to borrow money would be likely to insist that a building contract should be on file. A striking illustration of how lightly the obligations of the contract were held, appears in the case of Joseph De la Ferra. The Kelly contract included the carpenter work. But when it was sought to subcontract this work De la Ferra, refusing to take a subcontract from the construction compan)', was given a contract directly with the owner, Dorfman. Under these circumstances, it seems to me to be the unavoidable inference that the parties were contracting parties in. form merely; that the case falls within the principle of Young v. Wilson, supra,, and that the contract does not protect the land against the liens of creditors.

The creditors’ liens 'mentioned in the bill are the following:

August 6th, 1914, mortgage to Mrs. Larkin...... $2,000
August 11th, 1914, mortgage to complainant...... 18,000
October 20th, 1914, mortgage to Waldémar Dorfman ....................................... ' 5,000
May 13th, 1915, mortgage to Amorose............ 1,000
August 25th, 1914, contract of Iannacone & Ambola. April 6th, 1915, attachment by Cook & Genung for $400.
December 31st, 1914, judgment of de Stephano, agent, David W. Dorfman for $249.05.
June 10th, 1915, mechanics’ lien by De la Ferra for $3,150.
June 24th, 1915, mechanics’ lien by Katchen &
Rabinovitz ..........................:...... 1,005
June 28th, 1915, mechanics’ lien by Nicholas
Norelli ..................................... 1,695
August 4th, 1915, mechanics’ lien by Amorose.... 1,823
August 11th, 1915, mechanics’ lien by Person.... 150
September 30th, 1915, mechanics’ lien by Katchen
& Rabinovitz ............................... 855
October 8th, 1915, mechanics’ lien by Shapiro---- 500
October 15th, 1915, mechanics’ lien by Latin
American Construction Company............... 13,571
February 14th, 1916, mechanics’ lien by Amorose, 1,825

The complainant lias taken a decree pro confesso against David W. Dorfman, Frank Larkin, Ernest Lum, as trustee of tlie Orange Supply Company; Kelly, de Stephano, Cook '& Genung Company, Person, Shapiro and one or two of the other defendants who appear subsequently to have answered. Most of the answers .are drawn without regard to the fundamental rule of equity pleading that he who answers «must state his case and answer fully. I shall not, in the very complicated situation presented by the proofs, go outside of the issues raised. The court can hardly be expected to decide matters not set up. in the pleadings when a decree made in relation to such matters would be void, even in a collateral proceeding. Reynolds v. Stockton, 43 N. J. Eq. 211; affirmed, 140 U. S. 254.

While the mortgages, precede the lien claims in point of date they are attacked on the ground that the money lent thereon, or part of it, did not go into the building. As I have found that the contract made between Kelly and the Latin American Construction Company of itself affords no protection against liens, the mortgages must be dealt with as provided for in section 15 of the Mechanics’ Lien act. They were all made after the building was commenced. The mortgagees must therefore prove that the monej's secured were actually advanced and paid by them and applied to the erection of the building built upon the land mortgaged. Since the decision of the court of errors and appeals in Franklin Society v. Thornton, 96 Atl. Rep. 922, and of the supreme court in Young v. Haight, 69 N. J. Law 453, there can be no doubt as to the rule. Sajs Chief-Justice Gummere, in the latter case:. “The only test is whether the money has been loaned for the erection of * * * the building and has been actually applied to that purpose.” If labor or material have gone into the building, money lent to pay for such labor or material would, of course, be within the .rule, and, equally, it seems-to me, would be money lent to pay a contractor or sub-contractor to whom, under his contract, payment is due for work actually done. But money paid to a person charged with the duty of paying such contractor does not come within the rule, unless it be further proved that such money was actually paid over. In the case in hand, proof of payment by complainant to David Dorfman, or to Norelli, or his partner, Scrocco, would not suffice. The proof must go further; it must show that they applied it to the erection of the building by paying it in one of the ways I have mentioned.

The question then is, Were complainant’s and Dorfman’s moneys so applied? As far as complainant’s mortgage is concerned, I do not find in the briefs handed to me any insistence that it was not, except in that of Katchen & Rabinovitz. The answers or notices of Amorose, Waldemar Dorfman, Lum, Norelli and Cook & Genung expressly admit the priority of the lien. Under these circumstances, the complainant is entitled to have the full amount due on his mortgage paid to him before any other- liens are paid except the lien of Katchen & Rabinovitz, as to whom he must show that the money went into the erection of the building. The principal contention that Katchen & Rabinovitz make on this head is that $1,200 of the money lent went to pay Mrs. Larkin for the purchase price of her land. The facts are these: Mrs. Larkin, as has been already stated, deeded the property to David Dorfman in August and took a mortgage of $2,000 to secure the price. Dorfman applied to complainant for a loan, which was granted only on condition that it should have a first lien. Mrs. Larkin’s solicitor, Mr. Grosso, says: .

“Mr. Dorfman and Mr. Norelli and Mr. Giordano, their attorney, called on me frequently and asked me to cancel the mortgage and I told them I wanted som'e money. - However, I was assured by Mr. Norelli, also by Mr. Dorfman, that if I would cancel that mortgage they would pay me as soon as they got the first payment from the building and loan association.”

It was canceled on December 3d. On December 5th Mr. Butler, representing complainant, handed to Mr. Norelli, representing the Latin American Construction Company, a check for $3,312.80. As soon as Mr. Grosso heard of it he went to Norelli’s office, and on being told by Norelli that he was unable to give the full amount, accepted a check, dated December 7th, for $1,200, and took a deed to Mrs. Larkin, antedated November 24th, reconveying the property, to secure the balance owing ($860). The money was not applied to the erection of the building, unless tire word “building” be stretched to include “land.” ■ All through the Mechanics’ Lien act, “land” and “building” are contradistinguished. In-the section under consideration, I think the word “building” is used in its ordinary sense and does not extend to the land built upon.

I will next consider the position of Mrs. Larkin. Under the course of decision in this state there can be no doubt but that her mortgage, being given to secure purchase-money, was prior to the mechanics’ liens. The real question is whether she lost her lien when she surrendered her mortgage for cancellation. She did so unless her vendor’s lien continued. The law of this state is that the giving of a mortgage for purchase-money is a waiver of the vendor’s lien. In the note to the leading- case of Macreath v Symmons, 1 Lead. Cas. Eq. 364 (3d Am. ed.), it is said: “The lien will be considered as waived whenever any distinct and independent security is taken, whether by mortgage on other land or pledge of goods, or personal responsibility of- a third person and also when a security is taken upon the land either for the whole or a part of the unpaid purchase-money, unless there is an express agreement that the implied lien shall be retained.” Mr. Pomeroy (3 Eq. Jur. § 1252) says: “'The securities which ordinarily produce this effect are the grantee’s mortgage on the very land conveyed,” &c. In Acton v. Waddington, 46 N. J. Eq. 19; affirmed, 46 N. J. Eq. 611, Chancellor Runyon said: “The lien will be considered as waived whenever any distinct and independent security is taken, such as a mortgage upon the land, or a pledge of things or personal responsibility of a third person, and the like.”

Such being the rule of law, when Mrs. Larkin took her mortgage for the price, she lost her vendor’s lien, and what we have to deal with is the mortgage lien and not the vendor’s lien. Now, Mrs. Larkin, at the solicitation of Dorfman, or the construction company, surrendered this lien, in order that the lien of complainant’s mortgage might attach upon the land as a first lien. She did so, as far as appears, without reservation or limitation, and without stipulating for any other lien. Mr. Grosso was content to rely upon the representations that Dorfman, Norelli and their attorney, Mr. Giordano, made to him. He says: #

“I was assured by Mr. Norelli and their attorney, Mr. Giordano, that if I would cancel that mortgage they would pay me as soon as they got the first payment from the building association.”

The mortgage having been surrendered ánd canceled it seems to me necessarily to follow that existing liens upon the property fastened themselves upon the mortgage estate thus merged in the equity of redemption. If complainant’s lien attached so did the others. No subsequent act of the parties could revive the mortgage lien of Mrs. Larkin so as to give it precedence. The antedating of the deed could not have that effect, for a deed takes effect from delivery, and the delivery, as averred in' the answer and shown by. the evidence, took place when the note for $860 was given (December 7th).

I reluctantly conclude that Mrs. Larkin’s security by way of deed must give way in point of priority, not only to complainant’s mortgage, but to Dorfman’s and to the mechanics’ liens. The Amorose mortgage was not proved.

I next take up the Waldemar Dorfman mortgage. Counsel for Waldemar Dorfman’s representatives has prepared a statement claiming that payments amounting to $4,401.61 made on its security went into the erection of the building. Other payments amounting to about $475 went, he admits^ to the partners and cannot be traced into the building. If these figures are not accepted as correct by the other counsel, there will have to be a reference to a special master to state an account.

As to the payments for freight and those made to the watchman, the ease of Davis v. Mial, 86 N. J. Law 167, controls. If a watchman was reasonably necessary for the protection of tire building during construction the money paid for his wages went into the erection. The salaries paid Norelli and Scrocco, so far as they were compensation for work done on the building, will be allowed.

The lien claim of De la Eerra was reduced to judgment in a suit at law in the Essex circuit court, in which De la Eerra was plaintiff and David W. Dorfman, Clara H. Larkin, Waldemar Dorfman and Joseph E. Amorose were defendants. The judgment was entered May 24th, 1916, for $3,407.44. It adjudges that the lien claim is prior to the mortgages held by defendants Dorfman & Amorose. This judgment being subsequent to the alleged waiver of priority must control.

The Latin American Construction Company’s lien claim is hasecl upon the assumption that the contract with Kelly was valid. As against the lien claimants, I have found that it was not. That company, must therefore be postponed to the mechanics’ lien claimants who have appeared and proved their claims. '

I do not find in the briefs that the lien claims of Amorose and Ivatchen & Rabinovitz are disputed. They and any other undisputed claims will be-concurrent liens payable in accordance with section 28 of the Mechanics’ Lien act.

Probably when the property comes to be sold — and perhaps it may be desirable to sell at once — other equities, dependent upon the amount the property may bring, will have to be adjusted. Waldemar Dorfma.n’s mortgage is or may be good for the whole amount against David Dorfman. The status of the construction company’s claim against Dorfman may be different from its status as against the lien claimants. It is stated that there is a suit pending on this claim. If so, it ought to be prosecuted to judgment. The question of the amount Dorfman owes the company, and on what basis he owes it, is a legal one. The law courts will determine whether there is a lien and how much, lien or no lien, is owing; but the pendency of this suit ought not to delay the sale.

If a reference be necessary the master will report upon the various claims on the principle here laid .clown and upon any incidental questions that may arise in the course of this very complicated litigation.


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    The Town of Boonton v. United Water Supply Company et al.
    [Decided October 27th, 1917.]
    1. Under the contract involved in this case, it is held, that if the complainant takes anything under its option to purchase, it must take all of the plant of the defendant company.
    2. Under the evidence in this case, held that the vote of the people authorizing the purchase was to purchase the system as it was, and not as it ought to be. ,
    ■On bill, &c.

      Mr. Frank H. Pierce, Mr. Kinsley Twining and Mr. Richard V. Lindahury, for the complainant.

      Mr. James V. Beam, Mr. Thomas J. Rillery and Mr. Elmer King, for the defendants.
   Stevens, V. C.

This is a suit for the specific performance of a contract made in 1893, between Lewis Yan Duyne, the Boonton Water Company and.the major and common council of the town of Boon-ton. Lewis Yán Duyne agreed to transfer to the water company certain water rights which he controlled in Brook Yalley, and the water company, on its part, agreed to procure for and furnish to the town, in two years from its date, a full, ample and sufficient supply of water, viz., five hundred thousand gallons per day, to be increased to one million gallons if necessary.

By paragraph 11 of the contract the town had the right to purchase the plant with its extensions at the expiration of twelve years, and if it did not, the further right to purchase it at the expiration of ten years thereafter. The town npw wishes to avail itself 'of this latter'option.

The contract provides for the ascertainment of the price, first, on the basis of net income, and. secondly, if the net income be not sufficiently large to give a principal sum greater than cost, then on the basis of cost. It is conceded that the price must be ascertained on the basis of cost.

By paragraphs 9 and 10 of the contract it is provided that the water company

‘"shall keep an accurate account to be verified by the proper receipts and vouchers, maps and plans, of all moneys to be expended by them in and about the construction and completion”

of the plant and of its enlargement and extension.. This neither the original company, which became insolvent, nor its successor, the present defendant, did.

Two questions were discussed on the argument — first, what is the “plant” within the meaning of the contract, and second, what must the town pay.

Speaking very generally, the first question has arisen in this wise: The water company laid, among its extensions, a considerable number of one-inch pipes; and, in order to get a better head of water, erected a standpipe. The theory of the town council, and the theory of the bill filed, seems to be that the town is entitled to take them without paying for them. It is entitled to take them because the3 are a part of the plant. It is not obliged to pay for them because they were not laid or their price ascertained in the manner required by the contract. T.he contention on the hearing was somewhat different. It was, that they were not a proper part of a well-constructed system, and that, therefore, as they never received formal approval, the town was not, under the contract, obliged either to take or to pay for them. If this latter position be sustained, many of the persons who now get a water supply will be shut off until new pipes are laid or until the old ones or their use are acquired by bargain or condemnation.

The claim in the bill to take without paying is so inequitable that it may be dismissed in a few words. Such cases as Hackettstown v. Swackhamer, 37 N. J. Law 191, are inapplicable, for the reason that the town is not defending itself against a claim which has no legal basis of support, but is asking the court to give it that which it is under no compulsion to take. He who asks equity must do equity. It need not take anything; what it takes it must pay for. I do not speak now of pipes that have been abandoned. They will be considered later.

The real question is, What must the' town take if it take at all ? Must it take the system as it finds it or may it take that part only which was sanctioned by the town council ?

I think the town if it take anything must take the whole. The bill, after alleging that the defendant company had erected a standpipe and had made various other extensions and enlargements without complainant’s approval or consent, and that their cost had not been ascertained and stated as required by the contract, charged as follows:

“Complainant charges that the pipe, mains and equipment constituting the Wilson street and Vreeland avenue extension, * * * together with the standpipe, pumping station and other pipes and equipment thereon, and all mains, pipes or equipment connected therewith, as well as all and singular the machinery, outfit, pipes, pipe lines, valves, mains and equipment of the * * * company, whether located upon or under premises hereinbefore particularly described or upon or under public highways * * * in locations unknown to complainant or located elsewhere, constitute a portion of the said water-supply plant or system of the said United Water Supply Company.”

The prayer is that the company 'convey its rights of way, lands,

“and all and singular its machinery, outfit, pipes, mains * * * pumping station, standpipe, * * * plant, machinery, fixtures or property 'of any and every hind for use in oonneetion with the service or supply of . water."

The bill is in strict accordance with the prior action of the town.»' On November 2d, 1914, the town council passed a resolution which provided as follows:

“Resolved that in the judgment of the town council, it is deemed advisable to purchase the water works system or plant for supplying the inhabitants of said town with a supply of pure and wholesome water,” &c.

It was further resolved that the question of purchase for a price not exceeding $175,000 should be submitted to the voters, at a special election to be held pursuant to the provisions of the act of 1914 (P. L. 1914 p. 482), a supplement to the act of 1899. F. L. 1899 p. 226.

In order that the inhabitants might vote intelligently, the council had, in August, 1914, appointed two engineers — Mr. Potts and Mr. Van Duyne — to value the plant and to malte an estimate of the extensions and enlargements. This they did. They reported on October 7th, 1914, and estimated upon everything that then formed part of the. system,' including the standpipe and its connections and the one and two-inch pipe.

The notice of special election directed to be given by the town council submitted the question in form following: “In favor of the purchase of water works system according to resolution of council;” “against the purchase of water works system,” &c. The voters having voted in the affirmative, the council, on December 7th, 1914, directed a.notice to be served upon the water company, to the effect that they wished to purchase the “water supply plant with its enlargements and extensions now operated by the viator-supply company!’

It thus appéars that what the council resolved to acquire, and what the voters voted to acquire, and what the bill prayed for, was the system as it is.

The cases of Gillen v. Spring Lake, 61 N. J. Law 392, and Wilson v. Collingswood, 80 N. J. Law 626; 81 N. J. Law 634, are very much in point. They hold that no legal assent can be given to a system of public works until it be formulated and presented to the people for acceptance. It is said thát upon the tank or standpipe system there are ninety-five taps or house connec-. tions, and upon the pipe lines whose pipes are less than four inches in diameter one hundred and eighty-two taps; that is, two hundred and seventy-seven taps out of a total of seven hundred and eighty taps for the entire town. The system brought before the voters was the system as it then was, not as it ought to have been had contract requirements been observed. It was for tire system in actual use that the affirmative vote was given. What the vote would have been had it been declared that a large percentage of the householders using water would, at least for 'the time being, be excluded from the benefit of the water-supply, no one knows. The vote of the town accords with the principles of equity. As the system is one whole it ought to be taken as one whole, if at all. While the town did not formally sanction pipes less than four inches in diameter, it never formally objected to them. It is highly probable that in some instances, at least, it would have approved them. The company from the start suffered from lack of funds. .The original agreement stipulated for water at rates much below those ordinarily charged. The first company failed. After foreclosure the Scranton management which had acquired the' plant, soon gave up the undertaking. It came again into the hands of Mr. Conover and others who had organized it. The new company, like the old, was hampered for want of funds, and most of the extensions were made only after solicitation by applicants who needed water and were in the first instance willing to advance the cost of its introduction. The contract does not call for pipe of any particular size. It only requires that it be of proper caliber. It is obvious that in the case of a.street just opened, with only two or three houses upon it, 'one-inch pipe would, at least, temporarily, suffice. When the street was built up.a. larger pipe would be needed. That illustrates the- situation. It is quite likely that had a joint request been made by the applicant and the company to approve the laying of a one or two-inch pipe in such a street, the application would not have been rejected. Such a pipe would have been proper in view of the then situation. To hold that a very considerable portion of the system should be excluded because not laid and approved in strict accordance with the provisions of the .contract would inflict' an injury that the town and its voters, did not vote to inflict — an injury hurtful alike to the company and to many of the householders who for the time being might lose their supply.

The pipe that I have been considering is pipe in use. To the pipe not in use different considerations apply.

The fourth section of the contract provides that the party of the second part

“shall erect, build, lay down and complete and properly furnish all necessary water mains, dam or dams, reservoir or reservoirs and pipes and other apparatus and appurtenances as may be required therefor as shown on city plan and specifications,” &c.

The mains and pipes are to be of “east and wrought iron of proper strength and caliber,” and the supply of water is to be furnished “to all the inhabitants of the town along the lines of the water mains who may apply therefor.” (Section 3.)

The ninth section provides that the water company shall keep accurate accounts to be verified by the proper receipts and vouchers up to the time the water shall be in readiness for delivery; the account is to be examined and the cost ascertained and stated in writing “by any person or persons to be appointed therefor” by the town.

The tenth section reads as follows:

“Tenth. That the cost of any enlargement or extension of said water-supply plant by any enlargement or extension of pipes, mains, dams or reservoirs, made by the party of the second part, with the approval and consent to be manifested by resolution or resolutions of the said party of the third part (the town) at any time or times during the continuance of this contract shall be examined, ascertained and stated in like manner.”.

The eleventh section, after' defining the times when and the terms upon which the plant may be acquired, proceeds as follows:

“And if the (town) shall decide to purchase * * * it shall be at the option of the (town) to do so upon thirty days’ notice, * * • and the said party of the second part (the water company) shall * * * well and sufficiently grant, bargain, sell, convey and assign unto the (town) all and singular the water-supply plant aforesaid, together with any extension or extensions thereof to all their real and personal property of every kind whatsoever connected therewith and used therefor and belonging thereto, including everything taken into account while the cost of the plant was being ascertained as described in sections ninth, tenth asid eleventh upon being paid * * * such sum of money as shall be proved to be the amount of the value of the said water works on the basis and, by the methods above mentioned.”

One has only to read the above-quoted sections to see that the town was careful to provide that the water system should be constructed and' enlarged in a way that it approved of. To the original contract which it entered into were appended the specifications of tire work, to be done, and it was thereby provided that the cost of enlargements and extensions, made with Us approval and consent to he manifested hy its resolution, was to be ascertained and stated by its own agents. It was this system so approved that the town was to have the right to acquire on paying the price previously stated and determined. But, as I have already said, it was not upon the acquisition of such a system that a vote was taken. It was upon the acquisition of the system in use.

The agreement provided that the pipe should be of proper caliber. Mr. Potts says that pipe from one to three inches in diameter is not of proper caliber. Mr. Yan Duyne says that while he was superintendent (1902-1906) the directors did not want to apply to the council in the case of two or three extensions where it was proposed to lay one or two-inch pipes,

“for the reason that they were afraid the council might not give them authority to install them; and advised the consumer making the application to consult with the council and in that way have his request ratified by the council for the installing of it.”

The cost of the one or two-inch pipes laid by the company at different times is estimated by Mr. Potts at $15,760.93. This includes those now in use and those which have been paralleled or replaced by four-inch .pipe.

If the obsolete pipes, as Mr. Potts calls them, had been authorized by the town council and their cost stated in the manner provided for by-the contract, I am inclined to think that the town would have been obliged to pay for them. But, as has been said, they were not. Not only were they not authorized but in some instances at least authorization was not applied for because it was feared that council would refuse permission to lay them. There is nothing in the language of the contract that requires the town to pay for pipes so laid. The contract is that the town shall pay “such sum of money as shall be proved to he the amount of the value of said water works on the basis and hy the methods above mentioned.” If the court requires payment for those actually used, as a condition precedent to granting the relief of specific performance, it is because it would be inequitable to permit the town to take valuable property without paying for it. But equity does not require that it pay outside of and beyond the contract, for what is valueless; for what it did not approve and might not have approved had its approval been sought. If there is any dispute as to what pipe is still in use a reference may be had.

The question, then, is, What is the cost of the plant in use? No exact determination can now be made. Although the contract specifically provided for the keeping of vouchers, to be followed by an immediate verification of the company’s figures, its provisions were in' this respect completely ignored, as far as extensions were concerned. The consequence is that we have to rely upon the testimony of experts.

As to the original work there is no dispute except in reference to the Bassett claim, which will be first considered. On August 7th, 1895, a.'committee of the council reported that the cost was $131,396.20, excluding “bill of C. P. Bassett for extras to be adjusted.” A large amount of- .testimony in' reference to this bill, which is said to have amounted to about $20,000, was taken. It is extremely confused and unsatisfactory. Mr. Bassett was one of the contractors. He first intended to construct a pipe line from the dam to the town through a cut, but in the progress of the work he found it would.be better to tunnel for a part of the distance. For this and other work claimed to be extra he presented a bill. The water company had h counter-claim against him for delay in completion. A controversy arose which was •finally adjusted in this way: Mr. Conover, a director of the water company, on its behalf gave to Mr. Bassett $2,000 in cash •and some small houses which, Mr. Bassett testified, he (Bassett) sold for not less than $5,000. Bassett held three hundred shares of the then company, out of a total issue of seven hundred. Of these two. hundred were non-assessable and one hundred assessable. Bassett transferred them to Conover and mutual releases were exchanged. Conover, subsequently, transferred these same shares to the' water company and the company gave him $3,000 in cash and, as I understand his evidence, which is very confused, released him and his brother from a liability for_assessment on stock which they held. The company had mortgaged its property for $70,000 and owed besides $42,000. This floating debt had to be met, and it was in some unexplained way, in part, at least, paid with money derived from assessment. Bassett not only received the property and money I have mentioned, but, it is said, obtained a benefit, in that he was relieved from this assessment on his partly unpaid shares.

On 'this statement I think I am justified in remarking that it is utterly impossible to say what sum the company paid for extras. Conover says that in Ms settlement with the company he received in cash and. otherwise about $16,000, but the question is not what Conover received but what Bassett got for extra work done. Conover was the company’s agent to make the settlement, and he himself could make no profit out of it. Bassett got in money and property at least $7,000, but he gave in return stock that then presumably had some value.' At this distance of. twenty years, no one can tell what that value was or what the real value of Bassett’s disputed extra work was, or what substance there was in the company’s claim against Bassett for- delay in completing his contract. Had the settlement been laid before the town council at the time it was made, it might have been possible to have arrived at an approximation of the cost of the extra work. As it is, it is not possible. If the company suffers it is because it failed to comply with the plain terms of the contract. It definitely appears that the company paid Conover $3,-000 to reimburse him in part for what he gave Bassett. That the e'xtra work cost at least this is, I think, reasonably certain. There is too much uncertainty about the net result of the transaction between Conover and Bassett to warrant a further allowance.

I now take up the cost of extensions. Eor many years the work was done without the approval of the town and, until 1912, no record of its cost was kept by the pompan)'. The contract requirement that the cost of the work should be submitted to the town authorities was, as has already been said, not observed. We have two estimates of cost, one submitted by Mr. Potts and Mr. Yan Duyne on behalf of the town, and the other submitted by Mr. Pitney on behalf of the company. The latter is not an engineer’s estimate of cost, but a statement based largely upon figures given to Mr. Pitney by the company’s employes. He testifies as follows:

“That schedule embodies' some estimates of my own, but is made up very largely of the estimated cost of trenching as given to me by others who were familiar with the work.”

The others familiar with the work were Mr. Beam, the treasurer*, a lawyer by profession, and Michael Hillery, the foreman, under whose immediate direction much of the work was done.

The two estimates differ widely. In order to understand the theory upon which they were made it will be necessary to go into some detail.

The town of Boonton is, according to the evidence, divided into three sections — the Hill section, the'Park section, and the Plats. The Hill and Park sections contain boulders, that, in the work of digging, require blasting. The Plats section is sandy. Messrs. Potts and Van Duyne estimate the average cost of laying pipe in all three sections as follows: For one-inch pipe, twenty-five cents per lineal foot; for two-inch, forty cents; for four-inch, fifty-five cents, and for six-inch, seventy cents. In this estimate they allow for rock and boulders a uniform or average rate of five cents per lineal foot throughout the entire town. On the other hand, Mr. Pitney, in his statement, gives a special rate for each extension, grounded on statements made to him by Mr. Beam and Mr. Hillery, as to the character of the soil in the particular street. His estimates run from thirty-five cents per lineal foot to $1.05. The witnesses are in substantial accord as to the cost of pipe, which varies'from seven cents per lineal foot for one-inch pipe to forty-two cents for six-inch, but they differ as to the cost of wages and the amount of rock (meaning boulder) excavation. If the data given to Mr. Pitney had been correct, undoubtedly his method of arriving at the result would have been the - better. But, unfortunately, they are open to serious question. The amount of trenching that can be dug by one man in one day depends upon the character of the soil. Mr. Hillery testified that on the Hill section twenty-five per cent. of the trenching was earth, twenty-five smaller stone, and fifty per cent, boulder, requiring blasting, 'and that in the Park section thirty per cent, required blasting. Mr. Potts and Mr. Van Duyne allowed in their estimate for all three sections an average of ten yards of rock excavation for every three hundred feet. Mr. Potts was unfamiliar with the ground, but Mr. Van Duyne had had opportunities for intelligent observation equal to, if not greater, than Mr. Hillery. These estimates were so wide apart that I suggested that trenches should be dug in the Hill section in streets to be selected by Mr. Potts, on the one hand, and Mr. Pitney on the other, for the purpose of ascertaining the fact. This was done and the result was that in six selected streets the average percentage of boulders requiring blasting was only two and seven-tenths per cent., running from nothing to ten per cent. A statement based on information as wide of the mark as that given to Mr. Pitney by Mr. Hillery cannot, of course, be relied upon. The experiment seemed to indicate that the amount of rock allowed in the Potts estimate was at least sufficient. There is, too, a fact, in this connection, which ought not to be overlooked. Mr. Hillery admits that for a considerable period— he cannot state how long — he was willing to, and did, lay pipes extending from curb line to house at twenty cents a foot. The digging was easier than it was in street trenching, for reasons that he gives, but even so, his charge for the work is hardly reconcilable with his present statement as to the character of the soil and the cost of digging.

In the absence of evidence of actual cost we have then nothing but the estimate of two competent engineers; an estimate that is, of course, open to evidence tending to show it to be too low. I am inclined to think‘that five cents per foot ought to be added to it; that, in other words, thirty cents, instead of twenty-five, should be allowed for one-inch pipe, forty-five cents for two-inch, sixty for four-inch and seventy-five for six-inch. My reasons for this are based upon the actual cost of the Vreeland avenue, the Plane street and the Wilson street extensions, and of the similar work done in the streets of Mountain Lakes, to which may be added the considerations adduced by Mr. Pitney. I do not overlook the fact that lower wages were paid prior to 1911. Mr. Pitney thinks that the cost of blasting ($1.50) involved in the estimate is too low, and Mr. Van Duyne admits that he would not take a contract for doing the work at the figure given “without limitations.” I am impressed with Mr.’ Pitney’s statement that while the estimate might be fair as applied to a large job, done at one time under competent supervision, it fails sufficiently to take into account the fact that the work in question was necessarily done in small sections and under conditions that made it practically impossible to do it in the most economical way. Besides, the test made would seem to indicate that the estimate that one man will on the average throughout the town dig twelve feet of trench in a day is somewhat doubtful as applied to Boonton conditions.

I think that the company is entitled to the actual cost of laying the pipes in Vreeland street, Plane street and Wilson street. These, I believe, are all the streets in which actual cost is shown. The cost of other extensions must be determined by the Potts estimate, as modified. It may be that this estimate, on the whole, falls short of actual cost, but if it does, the company has only itself to blame for its failure to observe the plain terms of the contract.

There was considerable controversy over the taps or service pipes. These are the pipes extending from the mains to the houses. It is admitted that the part of the pipe between the curb and the house has always been paid for h}' the consumer or owner. It is only the part between the main and the curb that is in dispute. Mr. Van Duyne says that in nearly all cases prior to his time (1902) this was paid for by the consumer.' Mr. Beam says that such has also been the practice since 1907. In the intermediate period it was customary for the consumer to pay for the cost of installation.and for the company to give'him a rebate on his water rent up to such- cost. Here, it is obvious, the pipe was, in the end, paid for by the company. Its cost is a part of the cost of the plant. If the company has in any instance paid for taps for which it has not been repaid,, their cost is also cost of the plant.


author: Stevenson, V. C.

text:
    Maria A. Eugster v. Benedict Eugster.
    [Submitted March 13th, 1917.
    Decided May 25th, 1917.]
    A wife cannot he denied a divorce for acquiescing in the separation from her of a husband who shows that he married her in order to plunder her, and who beats her and is otherwise cruel to her.
    On petition for divorce on the ground of desertion, answer and cross-petition for divorce on the ground of desertion.
    Heard on pleadings and proofs taken in open court.

      Mr. Henry L. Slobodin, of New York, for the petitioner.

      Mr. Edward P. Stout, for the defendant.
   Stevenson, V. C.

It was the second marriage of each. Both were in middle life. The wife had property. The husband apparently had only his capacity to earn wages at his trade. Quarrels soon occurred. The husband, apparently desired to get possession of his wife’s property. Very soon the parties separated.

The ease o'f the husband on Iris cross-petition in my judgment entirely fails. The only question, and it is a somewhat close one, is whether the petitioner consented to the separation —acqiliesced in it to such an extent and with such a mind as to deprive the desertion of the husband of the element' of obstinacy.' In undertaking' the solution of this problem I start with the conviction that the defendant, the husband, is utterly unreliable as a witness. His untruthfulness was manifested on the stand, and bis deposition as read from the printed page in respect of various matters is improbable if not incredible.

On the other hand, I was strongly impressed with the honesty and accuracy of the petitioner’s testimony. She told her story just as she recollected the facts without regard to whether what she said helped or hurt her cause. The doubtful feature of the petitioner’s case above referred to is disclosed 'by her own testimony.

Although I followed the testimony of the witnesses closely I found it necessary to have the entire testimony written out by the stenographer. This testimony I have perused with care.

My conclusion is that the consenting mind of the petitioner was caused by the violation of duty on the part of the defendant — -that the petitioner would have been willing to live with the defendant if he had done his duty. A wife is not to be blamed for acquiescing in the separation from her of a husband who shows her that he married her in order to plunder her, beats her and greats her otherwise with cruelty. Smith v. Smith, 55 N. J. Eq. 222; Wilson v. Wilson, 66 N. J. Eq. 237; Martin v. Martin, 78 N. J. Eq. 423; Kip v. Kip, 78 Atl. Rep. 682.

A decree nisi in favor of the petitioner will be advised.


author: Leaming, V. C.

text:
    Kate Myers Boehm v. Eugene Boehm.
    [Submitted June 18th, 1917.
    Determined June 22d, 1917.]
    1. The duty of a husband, to support his wife is not dependent upon contract, but flows from the matrimonial status.
    2. The right of spouses to contract touching the discharge of the matrimonial duty of the husband to support his wife cannot be regarded as unrestricted.

      3. Where a wife had been awarded by decree of this court separate maintenance which she had been unable to collect, and a large amount was in arrears, and she made a written.settlement with her husband for $750 which purported to be a release of all accrued and future liability for support, but which the wife testified she did not understand, the settlement was held to be no bar to the wife’s right to an allowance under the existing circumstances of the case.
    On final hearing on bill for maintenance.

      Thompson & Smathers, for the complainant.

      Garrison & Voorhees, for the defendant.
   Leaming, V. C.

Complainant’s bill has been filed pursuant to the provisions of the twenty-sixth section of our Divorce act and prays for an order to compel complainant’s husband to provide for her and her minor daughter suitable support and maintenance.

The defence which has been made by defendant is based upon the claim that a decree which was heretofore entered in this court in a similar suit requiring defendant to pay to complainant $10 per week for her support has been satisfied and discharged by a settlement made by the parties, in which settlement defendant paid to complainant an agreed gross amount in full satisfaction of all past and future claims of complainant upon defendant for her support.

The evidence discloses that on November 22d, 1904, a decree of this court was entered in behalf of-complainant against defendant as complainant’s husband requiring defendant to pay to complainant for her support and maintenance $10 per week thereafter until further order of the court. That decree was made under and pursuant to the provisions of the section of the Divorce act then in force, the provisions of which were similar in terms to the section under which relief is now sought. Great difficulty appears to have been experienced by complainant in the enforcement of that decree until May 25th, 1907, when the settlement, already referred to, was made. On that date complainant and defendant executed a formal written agreement by the terms of which they agreed to live separate and apart during the remainder of their lives and complainant agreed to accept $750 in full satisfaction of all claims, past and future,, upon her part against her husband for support. The agreement was directly between the parties, without the. intervention of a trustee; the money was paid and the agreement signed and acknowledged by both parties before an acknowledging officer and recorded, and the decree was then discharged of record by complainant’s then solicitor.

Complainant now testifies that when she signed the agreement it was her understanding that it was onty in satisfaction of back alimony then due under the decree, and that she did n'ot know that -the agreement exempted defendant from the payment of future alimony or in any way conferred upon him the right to live separate and apart from her. Opposed to that testimony is that of the solicitor who then represented complainant and who took the acknowledgment; he has testified that the full purport of the agreement was explained to complainant by Mm when he took her acknowledgment, and that she fully understood it.

It is difficult to determine at this time with entire certainty whether complainant adequately understood the terms and effect of that agreement at the time she signed it. She is a woman without education and with an intensely dense perception. It is possible that a careful and -painstaking explanation to her of the contents of the agreement and its purpose and effect could have adequately apprised her of the exact náture and force of her engagement; but it is reasonably clear that less than that could not have accomplished that purpose. The settlement was negotiated by the solicitors and the written agreement was prepared by them for their clients. Alimony to a considerable amount was admittedly then overdue, and from complainant’s viewpoint even more was overdue than the amount that at this time appears to have been then overdue, as complainant had not received certain money which had been paid by defendant to her former solicitor. Great difficulty had been encountered by complainant in the various efforts which had been made to enforce payments under the court decree and complainant had appropriately become greatly discouraged in her litigation. These discouragements had led her to employ a new solicitor to represent her, and the attendant circumstances were such as to render it entirely natural and reasonable that complainant would have wholly relied upon the advice of the solicitor then representing her in signing the agreement without real effort on her part to comprehend the exact nature of the agreement further than to ascertain that money was to be paid to her. Her assumption that the money to be paid to her was "back alimony” is far from unreasonable under all the circumstances unless great care was exercised at the time to satisfy her to the contrary. The same may be said with equal or greater force as to the provisions of the agreement which were designed to release defendant from future liability, including, the provisions for the parties to live apart; unless those, provisions were at that time explained to complainant with more care than is ordinarily observed by an acknowledging officer it is not reasonable to assume that they were adequately comprehended by complainant in their force and effect. The nature of the settlement and complainant’s limited mentality and the other circumstances leading to and surrounding the settlement peculiarly demanded that complainant should receive not only accurate information touching the amount then due to her for back alimony but also sound counsel touching the effect ■ of the instrument on her futu re rights, and also that such information should be imparted to her in a manner suitable to her limited powers- of comprehension.

But in the view which I entértain of the present situation, I think it unnecessary to here determine whether the written agreement of May 25th, 1907, was executed by complainant without an adequate understanding of its terms or effect, or whether, as claimed by the solicitor of complainant, agreements of that nature are so far contrary to the policy of our laws as to render them void, for I ám unable to reach the conclusion that the transaction is in any aspect operative as a bar to complainant’s right to exact from defendant support for herself and her daughter at this time. ’ -

The duty oí a husband to support his wife is not a duty de: pendent upon contract; that duty flows from the matrimonial status. The law casts upon the court of chancery the duty of enforcing that matrimonial obligation of a husband in certain circumstances. The language of our statute under which the present bill is filed is that

“in case a husband, without any justifiable cause, shall abandon his wife oi' separate himself from her, and refuse or neglect to maintain and provide for her, it shall be lawful for the court of chancery to decree and order such suitable support and maintenance, to be paid and provided by the said husband for the wife and' her children, or any of them, by that marriage, or to be made out of his property, and for such time, as the nature of the case and circumstances of the parties render suitable-and proper in the opinion of the court, and to compel the defendant to give reasonable security for such maintenance and allowance, and from time to time to make such further orders touching the same as shall be just and equitable.”

In the former suit brought by this complainant this coui’t accordingly adjudged -that defendant had without justifiable cause abandoned complainant and refused to support her, and the decree then entered required defendant to pay to her $10 per week until further order of the court for her support. In that situation, and with payments under the decree in default to a large amount, it is claimed by defendant that complainant voluntarily accepted $750 as a gross amount in full discharge of all past and future obligations of defendant for her support and thus absolved defendant from all future duties of that nature. If a husband can thus absolve himself from the duty of support for all 'time it is obvious that this court is rendered powerless to perform the duty imposed by the act above quoted, for that act clearly contemplates the enforcement of periodical payments for the support of the wife, based upon her needs,as they may from time to time exist and upon the husband,s ability to páy and that such payments shall be modified in amount from time to time according to circumstances arising from changing conditions. The language of the act as above quoted is essentially similar to that of the preceding section for the recovery of, alimony in a suit for divorce, and that section has been held -to contemplate only periodical payments and not to justify an order for payment of an amount in gross. Calame v. Calame, 25 N. J. Eq. 548; Lynde v. Lynde, 54 N. J. Eq. 473. In the latter case it is said: “Her right to support and maintenance continues so long as it is just that she shall retain it. It is co-extensive with the husband’s position and ability.- His ability and the justice of her enjoyment of her light are subject to change of circumstances which the court cannot anticipate, and hence complete justice requires that the court’s power to act shall be kept open so long as it may be needed to direct just variation.” S. C. affirmed, 55 N. J. Eq. 591. It thus appears that if a payment to a wife of a sum in gross can be agreed upon by a husband and wife in final discharge of a husband’s future obligation of support the parties are not only enabled to discharge by stipulation the performance of an existing and permanent matrimonial duty of the husband in a manner which the court could not authorize with -the parties before it, but in a manner that obviously defeats or tends to defeat the primary purpose of the statute to.protect the wife from future want.

But while the right of spouses to contract touching the discharge of this matrimonial duty of the husband cannot be regarded as unrestricted, I think it unnecessary to here determine that all such agreements are void or should be wholly disregarded; a settlement upon a wife of a fixed and certain income for her life would accomplish the purposes of the act in so far as the income should be found adequate, and the payment of a gross amount might in some circumstances be treated as relieving a husband from his obligation of support to whatever extent should be found just under the circumstances. • But where, as here at this time, the wife comes before the court in a destitute condition and the husband claims as a bar to. his liability a settlement .for $750 of a decree under which there would at this time have been paid over $5,000 had the decree been complied with, I think it clear that the payment so made by him by way of settlement of future liability must be wholly disregarded. Aside from any question of public policy which may be involved, the money which was paid in settlement of future liability was in amount obviously too unreasonable and unjust to afford a bar at this time in a case of this nature.

Nor am I able to give anjr force to the provisions of the settlement agreement providing that defendant may live separate and apart from his wife. At the time that agreement was signed he was a deserter of his wife, and so adjudged by the court decree then existing. His continued absence from her has not been in' the slightest degree occasioned or influenced by any consent upon his wife’s part to that effect.. No proffer on his part has begn made at the hearing or at any other time to live with his wife or to support her at his home or elsewhere. His sole defence is that the settlement agreement has absolved him from the duty of support.'

Complainant’s long delay since the settlement in seeking the aid of this court has in no way arisen from any understanding on her part that she had by any agreement or settlement discharged her husband from liability for future alimony or had in any way agreed that he should be privileged to live separate from her. At all times since the $750 was paid her conduct has been consistent with her’ belief that the payment which was made was of back alimony. Since that time she has been persistently going from attorney to attorney, without success seeking one who would enforce her claim. Finally an appeal to the chancellor secured for her a solicitor and this suit is the result.

The former suit and decree was for complainant’s support and did not include the support of complainant’s daughter. The settlement agreement did not by its terms exonerate defendant from liability for the support of the daughter. This suit seeks a ^decree compelling defendant to contribute to the support of both complainant and their daughter who resides with complainant. The evidence discloses that defendant’s pecuniary resources are at the present time considerably less than when the former decree was entered. He is, however, in my judgment, well able to pay $5 per week. That amount is an appropriate amount for him to pay for the support of the daughter alone, but I do not feel justified in ordering payment of more than that amount in view of defendant’s present pecuniary condition.

I will accordingly advise a decree requiring defendant to pay. $5 per week for the support of complainant and his daughter, and also an aggregate counsel fee for complainant’s counsel of $50.