text:
    In the matter of the probate of a paper purporting to be the last will and testament of John Sparks, deceased.
    [Filed December 21st, 1901.]
    1. The confidential relation existing between a testator and his spiritual, as well as secular, adviser, who was made residuary legatee, is not alone sufficient to raise a presumption of undue influence; the rule which raises such- a presumption in transactions inter vwos does not apply to testamentary gifts.
    2. Slight circumstances, in addition to such relation, will throw upon the beneficiary the burden of showing that*the testator’s mind was not unduly influenced.
    3. The beneficiary having prepared the memorandum from which the will was drawn was called upon to explain his connection with the execution of the will.
    4. Upon the facts disclosed—Held, that undue influence was not proved.
    On appeal from the Middlesex county orphans court.

      Mr. Abraham V. Schenck, proctor for the appellant.

      Messrs. McDermott & Fisk, proctors for the respondents.
   Reed, Vice-Ordinary.

John Sparks died on November 10th, 1888, leaving a paper executed in statutory form as a will dated May 17th, 1888. The testator left three children, John E. Sparks, Abbie E. Bolen, wife of William Bolen, and Ellen Tyrrell, wife of John Tyrrell. The deceased left property amounting to $5,800, all personalty, By the will $100 is left to each of his three children, $200 in cash and an annuity for life or during her widowhood of $225 is left to his wife, Mary. The will provides that after her death or re-marriage, $1,000 is to be divided between the four children of his son John and $1,000 between the children of his daughter Ellen. Mrs. Bolen, the other daughter, had no children. On the death or re-marriage of his widow $150 is made payable to the institution of the Immaculate Conception for Homeless Children and $150 to St. Mary’s Orphan Asylum of New Brunswick. The residue of his property is given to Rev. Peter L. Connolly and he is named as the executor of the will.

Mrs. Bolen filed a caveat to the admission of the will to probate, and has taken this appeal from the decree of the orphans court admitting it. The insistence of the appellant is that the will was the product of undue influence exerted upon the deceased by the residuary legatee.

The testator could not read or write. He was a laborer who by industry and economy had accumulated the property mentioned. He was a member of the Roman Catholic church at Perth Amboy, of which church Father Connolly, the residuary legatee, had the cure. The deceased was an old resident of Perth Amboy. Father Connolly came to the church in Perth Amboy in 1871. The deceased was both a member and a trustee of this church. The relations between Mr. Sparks and Father Connolly became very close and confidential. Not only in matters spiritual, but in business and secular affairs, Mr. Sparks was accustomed, to consult with and trust in Father Connolly. Mr. Sparks entrusted his money to the keeping of Father Connolly, talcing the notes of Father Connolly for the amounts so entrusted, and these notes were left in the possession of Father Connolly because, as the latter says, “he had a safe and the deceased had none.”

On December 27th, 1887, 'Mr. Sparks conveyed all his real estate to Father Connolly for a consideration of $4,300, taking back a mortgage from the grantee for $3,800, payable in ten years, at five per cent, interest. The remainder of the consideration—$500—was counted out in bills to Mr. Sparks at the time of the execution of the deed, but the money was handed back by Mr. Sparks to Father Connolly to keep for him, and Father Connolly’s note for the amount was made to Mr. Sparks, which note was also left with Father' Connolly to be kept in his safe. This deed was drawn by Judge Paterson at the request of Father Connolly, who, it seems, paid him for his services. Mr. Sparks remained in possession of this property until his death, under an arrangemént, as testified to by Father Connolly, that he should do so, and receive the rents for the portions of the same let to tenants, and should credit the rents upon the interest due from Father Connolly to him, and should pay the taxes upon the jn’operty. Before and after the execution of the deed the visits of Father Connolly to the house of Mr. Sparks were very frequent, Mr. Sparks, who was not in robust health, frequently sending for him, and during the latter part of his life the visits of Father Connolly became still more frequent. On May 17th, 1888, the will propounded was executed. It was written by Judge Paterson, without consultation with or instructions from the testator, but from a memorandum in the handwriting of Father Connolly. Father Connolly requested him to prepare the will and gave him the memorandum from which the will should be drafted, and told Judge Paterson he would let him know when Mr. Sparks would be ready to execute it. Judge Paterson says that he notified Father Connolly when it was ready, and Father Connolly thereafter called for him, and they together went to Father Connolly’s residence, whore he found Mr. Doyle, who, with Judge Paterson, witnessed ¡he instrument. lie says that he and Mr. Doyle went to the house of Mr. Sparks, where they were admitted by Mrs. Sparks. The will was executed in the presence of Judge Paterson, Mr. Doyle and Mrs. Sparks. The testator made his mark. After the execution of the will the witnesses returned to Father Connolly’s, who drove them home, Father Connolly remarking to them, “I wish you to imderstand that that is not such a will as I would have Mr. Sparks execute.” Mr. Doyle and Judge Paterson both say that the will was carefully read to the testator, but no explanation of its terms was asked for by him.

The facts so far stated are such that I think the burden of proof rests upon the residuary legatee to show that the will was not the product of undue influence exercised by him upon the testator.-

The legatee stood in a position of confidential adviser of the testator.

The cases cited in support of the appellant’s position which state the invalidating effect of a confidential relation most strongly are cases dealing with gifts inter vivos.

It is entirely settled that proof that a donee, at the time a gift was made, stood to the donor as his attorney, guardian, parent, or occupied any other position which implied confidence, control or domination over the conduct of the donor, gives rise to a presumption of unfair conduct and throws upon the donee the duty of showing facts which will relieve him of the implication. The cases settling this doctrine are collected in the notes to the leading case of Huguenin v. Baseley, 2 Lead. Cas. Eq. (4th ed.) 1156. The subject of undue influence in the case of gifts made by a member of a religious sisterhood to the lady superior of the sisterhood was elaborately discussed in the case of Allcard v. Skinner, L. R. 36 Ch. D. 145. The doctrine as applied to the relation of clergyman and parishioner is strongly stated by Chief-Justice Beasley in Corrigan v. Pironi, 3 Dick. Ch. Rep. 607. In the leading case of Huguenin v. Baseley, supra, the spiritual ascendancy obtained by clergymen over a parishioner was put in the class of confidential relations, the abuse of which was a ground for setting aside a voluntary settlement.

Whether the strict rule which applies to transactions inter vivos also prevails in cases- of testamentary gifts has been the subject of some contrariety of judicial opinion. 27 Am. & Eng. Encycl. L. 508.

In the case of Marx v. McGlynn, 88 N. Y. 358, 371, Mr. Justice Earle, for the court of appeals, said: “There are certain cases in which the law indulges in the presumption that undue influence has been used, and those cases are where a patient makes a will in favor of his physician, a client in favor of his^ lawyer, and a ward in favor of his guardian or any person in favor of his priest or religious adviser; or where other clásses of confidential relationships existed. Such wills, when made to the exclusion of the natural objects of the testator’s bounty, are viewed with great suspicion by the law and some proof should be required beside the factum of the will before the will can be sustained.” In the matter of the will of Smith, 95 N. Y. 516, however, it was said that the doctrine that a benefit conferred upon, or advantage given, by the one holding a dominating situation, casts upon the party claiming the benefit or advantage the burden of -relieving himself from suspicion thus engendered and of showing, either by direct proof or by circumstances, that the transaction was free from fraud or undue influence, was confined to cases of contract or gifts inter vivos. It was held that the fact that the beneficiary was a guardian, attorney or trustee of the decedent, does not alone create a presumption against a testamentary gift.

In Merrill v. Rolston, 5 Redf. 220, the testatrix had conceived a dislike for an adopted son and made a will giving the bulk of her property to charities and to a clergyman of the Roman Catholic church, of which church she was a member. Two ecclesiastics aided in the preparation of the will,' and signed it as witnesses, but took nothing under it. It was held that these facts raised no presumption of undue influence.

In Figueira v. Taafe, 6 Dem. 166, a testatrix who had declared her intention to disinherit her sisters, and had had independent advice respecting her testamentary act, made a will giving to a priest to the disinhersion of her sisters, which gift was sustained.

In Parfilt v. Lawless, L. R. 2 Perry & D. 462, which was hoard before Lord Penzance, Baron Pigott and Brett, J., it was held ' that the rules of the courts of equity in dealing with gifts inter vivos were not applicable to wills. In that case a Roman Catholic priest had resided with the testatrix and her husband many years as chaplain, and for a part of the time, covering the date of the execution of the will, as confessor. She left' him the bulk of her property and named him her executor. There was no evidence that the beneficiary had interfered with the making of the will or procured the gift to himself, or that the testatrix was under his domination in the common affairs of life. It was held that undue influence should not be inferred from the relation in which the beneficiary stood towards the testatrix, coupled with the gift to him of the property.

And in Wheeler v. Whipple, 17 Stew. Eq. 141, Chancellor McGill, sitting as ordinary, held that mere confidential relations between the beneficiary and the testator would not raise a presumption against the validity of the gift.

The mere fact, therefore, that the proponent stood towards the testator as a priest to a parishioner, coupled with the fact that he was the residuary legatee, does not create a presumption against the validity of the legacy given by the will, and throw upon him the burden of establishing the absence of undue influence. If, however, these bare facts are combined with other circumstances tending to show imposition, such a presumption arises, and the burden is cast upon the legatee to rebut it. Such is the case if the evidence shows that the testator was of weak mind. Dale v. Dale, 11 Stew. Eq. 274. So, also, if the legatee selected the witnesses or made an effort to exclude the natural objects of testator’s bounty from his society, or to conceal the making of the will, or to conceal the fact that the will had -been made. Wheeler v. Whipple, supra. So, if the will is one which the testator could not make consistently with the claims of duty or affection. Notes of Huguenin v. Baseley, 2 Lead. Cas. Eq. (5th ed.) 1275. So, if the legatee drew the will, or caused it to be drawn, in his owni favor. Bale’s Appeal, 57 Gonn. 127. In re Welsh, 1 Redf. 238, was a case in which a parishioner made his rector his residuary legatee, who was also empowered to name two scholarships in a theological seminary created by the will. The residuary legatee procured the will to be drawn, and superintended its execution. Mr. Surrogate Robertson, in. a learned opinion, reviewing the question of undue influence in connection with the existence of confidential relations, held that these facts required an investigation as to the spontaneous character of the testamentary act, and imposed upon the legatee the burden of rebutting the presumption of undue influence.

It seems, therefore, to be settled that the voidability of gifts inter vivos and the invalidity of wills upon the ground of undue influence, rest upon different considerations. In the first class of eases, there arises a prima facie presumption, of undue influence whenever the donee occupies a confidential relation to the donor. In this class of cases it is essential that the donor shall have the opportunity of receiving advice from an independent competent adviser (Hall v. Otterson, 7 Dick. Ch. Rep. 522, 529; S. C. on appeal, 8 Dick. Ch. Rep. 695), unless, perhaps, in instances where the gifts are of slight value. Remarks of Lord-Justice Turner in Rhodes v. Bate, L. R. 1 Ch. App. 252, and Lord-Justice Lindley in Allcard v. Skinner, 86 Ch. Div. 145.

Within this class are the cases of Thornton v. Ogden, 5 Stew. Eq. 723; Farmer v. Farmer, 12 Stew. Eq. 211; Corrigan v. Pironi, 3 Dick. Ch. Rep. 607; Hart v. Hart, 12 Dick. Ch. Rep. 543, cited, in the brief of the proctor for the appellant.

But in the second class of cases there is no prima facie presumption of undue influence merely because the beneficiary stood in a confidential attitude toward the testator. Nor does the fact that the testator did not seek or have independent advice, of itself, raise a presumption of undue influence.

Lord Penzance, in Parfitt v. Lawless, supra, entered into an elaborate discussion, explanatory of his notion of the reason why courts of equity had laid down a rule concerning gifts more rigid than the probate court had concerning wills. The controlling reason is, I think, because by a gift a man strips himself of that which he can still enjoy and of which he may have need during his life; while by his will he disposes of that which can be of no further use to him. As he is, under ordinary conditions, So much the less likely to do the first than the. second, courts subject gifts to the sharper scrutiny. In recurring to the facts in the present case thus far stated, it is to be observed that there is no insistence that the testator was not intellectually in a normal condition. There is no evidence of mental deterioration. But it is uncontradicted that the residuary legatee did advise the testator in all his business affairs and was entrusted with the money of the testator and with the evidence of the indebtedness due from the legatee to the testator, in such a way as to exhibit the most explicit confidence. This, coupled with the fact that the memorandum, from which the will was prepared, was written by Father Connolly, throws upon him the burden of showing that the testator’s mind, at the time of the execution of the will, was free from any influence unduly exerted by the proponent.

The absence of any influence which can be regarded as undue must, in the main, of necessity, be proved by the legatee himself. He, in the most explicit terms, denies that he exerted any influence against the interests of the children of the testator. Indeed, he says that he expressed his dissatisfaction at the exclusion of the children from a greater benefit under the will and urged the testator to leave to each of them $500, and told him that if he did not wish to leave the $500 to John, to leave it to his wife.

His testimony concerning his reception of moneys from the testator, and his giving notes for the same, and the deposit of both in his safe, about which no one but the witness seems to have any special information, appears to me to be ingenuous and veracious. The testimony of the legatee, unless contradicted by some other credible testimony, or discredited by its improbability, cannot be arbitrarily disregarded. There is no credible testimony that in any of the business affairs of the testator Father Connolty dominated bis judgment so as to compel him to do what he otherwise would not have done. Nor is their credible testimony that Father Connolty, directly or indirectly, ^used his influence to embitter the testator against his children or grandchildren, nor that he used his influence to prevent the children from visiting their father, or to exclude them from personal interviews with him. Indeed, Mrs. Tyrrell herself testifies that he advised her to visit her father shortly before his death and advised her to get Mrs. Bolen to do the same.

The failure to leave more to his children is explicable in the light of the testimony of a number of witnesses who say that they heard the testator declare that his children had not used him well, and that he would leave them no more than he was compelled to by law, but that he would leave it to his grandchildren.

It appears that Mrs. Bolen was compelled to leave his house in 1876, and did not visit him until just before his death. 'It also appears that he had had trouble with Mr. Tyrrell, the husband of his daughter Ellen, concerning a boat which the testator had partly equipped, and in which he supposed he had a one-half interest. When he discovered that Mr. Tyrrell had registered the boat as one in which the testator had only a two-fifth’s interest, the latter was offended. Litigation was begun and the matter was settled by Mr. Tyrrell paying him $1,800.

John Sparks, his son, was a man of drinking habits, and the father said he was afraid of John when he was drunk. The father took out a writ of dispossession to eject him from a house of the testator’s which he occupied, and also applied for a warrant against him for assault.

These are circumstances to explain why the testator used the expression about his children already stated. In this mood he left only $100 to each of them, and the same feeling probably modified the amount which he left to their children. The coolness between the testator and the families of his children had prevented that closeness of association from which an attachment would have been likely to arise between him and his grandchildren, and be manifested more markedly in his will.

In respect to the portion of the estate left to the charitable institutions and to Father Connolly, it is quite unlikely that they were the outcome of any spiritual domination. The testator was not only a man of obstinate temper, but a man whose obstinacy refused to yield to the wishes and even threats of a former priest of his church. Once, he had made up his mind that he would not pay an assessed rent on a pew which he occupied in his church, and resisted all efforts to compel him to do so. The priest came down from the altar and asked him if he intended to pay the assessment and he refused to yield. Only after the bishop was called upon to intervene and threatened to cut him off from connection with the church did he succumb to the demand. As a friend and adviser, Father Connolly had the right to call the attention of the testator to the merits of the charitable institutions who are the beneficiaries under his will. In connection with the gift to himself, Father Connolly says that Mr. Sparks had insisted upon his taking a memorandum of instructions for the will; that he (Father Connolly) had delayed doing so for the reason that he knew that the intended terms of the will would be unsatisfactory, but that on March 8th, 1898, Mr. Sparks told him that he had made up his mind to give St. Mary’s Church $1,000, on behalf of himself and his dead wife, for a memorial window. Father Connolly says he then felt under an obligation to do for Mr. Sparks what he requested. Father Connolly also says that Mr. Sparks stipulated that the former should spend $500 to put a granite railing around his monument, which rhonument he had already ordered in New York. These two sums—$1,000 and $500—would, to that extent, diminish the residue which would come to Father Connolly.

In regard to the transfer of the real estate to Father Connolly, it is not now a question whether this transaction, inter vivos, would have been vacated had it been attacked, but whether it is evidence of such control over the testator in a collateral matter as to evidence a general domination by the legatee over the testator, in respect to the affair of the execution of the will. Now, if Father Connolly is to be believed, it was the testator who broached the matter of the sale of the real estate, and wished Father Connolly to buy it or to get a purchaser. He says it was in the summer of 1886 that he first spoke of it, and that he spoke of it again in September, 1887. He wished $4,500 for the property, but Father Connolly told him,, at last, that he would pay $4,300 for it, at which sum the property was sold. In support of Father Connolly, it appears that Mr. Sparks did wish to sell and requested at least one other person to become a purchaser. The reason for wishing to rid himself of the property in the shape of real estate and turn it into personalty, was probably that he desired to avoid the expense of the reparation of the property, which appears to have fallen into a condition which made them undesirable for tenants without repairs. I do not think the transaction between the parties displays any degree of domination over the mind of the testator. The one feature of the case which calls for special care in weighing the probability of undue influence is the financial relations between the legatee and the testator at the time the will was made. I have already observed that Father Connolly has given, in my judgment, a veracious account of the money of the testator that was put in his care and the number and amount of his notes outstanding as evidence of the reception of such moneys. I think, however, that this money had been all, or in part, used by Father Connolly, possibly for church purposes, so that he would have been put to inconvenience if, at'Mr. Sparks’ death, he had been called upon to repay it. If this is so, the will, as made, relieved him of this inconvenience. I have considered the force of this view, but taking all the testimony together, I have arrived at the conclusion that undue influence is not proved, and that the decree below should be affirmed.


source: Caselaw Access Project

author: Van Syckel, J. Collins, J.

license: Public Domain

text:
    Timothy Burnet, complainant and respondent, v. Oliver Dean et al., defendants and appellants.
    [Filed June 17th, 1901.]
    1. Taxes in the village of South Orange are a paramount lien for three years only from the time they are payable.
    2. The acts of 1888 (P. L. of 1888 p. 97) and 1895 (P. L. of 1895 p. 671) are unconstitutional—first, because the title is misleading; second, because the basis of classification adopted by the legislature is illusory.
    On appeal of South Orange from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in IS Diclc. Oh. Rep. 9.

      Mr. James McG. Morrow, for .the appellants.

      Messrs. Gallagher & Richards, for the respondent.
   The opinion of the court was delivered by

Van Syckel, J.

The bill in this ease was filed to foreclose a mortgage held by Timothy Burnet, the complainant, on lands in the village of South- Orange, dated April 10th, 1891.

The village of South Orange is made a defendant because it claims a paramount lien on the mortgaged premises for taxes assessed by it for the years intervening between 1877 and the date of the mortgage, and also for certain taxes assessed since the execution of the mortgage up to and including the year 1897. The prayer is that these taxes may be declared not to be a lien.

The only question involved is whether the lien of these taxes is paramount to the mortgage.

The taxes have not been paid since 1874, except the taxes for the years 1897, 1898 and 1899, which have been paid since the bill was filed.

This is a question of statutory construction, as the lien for taxes has its origin in, and is entirely dependent upon, legislative enactment.

There was no general law establishing the lien of taxes, and giving it priority over other encumbrances on land, until the act of March 14th, 1879, was passed. P. L. of 1879 p. 8J0.

The village of South Orange was incorporated by the act of March 25th, 1869 (P. P. of 1869 p. 6J/5), with very limited powers.

The charter was amended by the act of April 4th, 1872 (P. L. of 1872 p. 1208), and again by the act of 1875. P. L. of 1875 p. 895.

By the twenty-sixth section of the act of 1875 it was provided that the collector of said village “shall collect the taxes in the same manner and at the same time that the taxes in the townships of said county are assessed and collected.”

The correct interpretation of this provision is that the taxes in the village shall be collected in the manner, from time to time, provided by law for the collection of taxes in townships, so that any change in the manner of collecting taxes in townships shall apply to the village. Dugan v. Jersey City, 21 Vr. 359; Hohenstatt v. Bridgeton, 33 Vr. 169.

Under the law as it existed prior to 1879 there was no provision making the lien of taxes paramount to that of prior mortgages, and the lien given was lost unless there was a sale for' the taxes within two years. This disposes of the lien for 'the taxes levied prior to 1879, as no such sale was made.

I agree with the view expressed by the ■ vice-chancellor that the-act of 1879, making taxes a paramount lien for two years, and the act of March 17th, 1882, extending the lien to three years, are applicable to villages.

Unless, therefore, subsequent legislation has further extended the lien of the taxes in controversy, the village of South Orange has lost its lien for all taxes levied 'prior to the year 1897.

The act of February 22d, 1888 (P. L. of 1SSS p. 97), and its supplement of March.25th, 1895 (P. L. of 1895 p. 671), make the taxes a prior lien until they are paid, and if these laws are constitutional, the encumbrance of the mortgage is subsequent and subject to their payment.

The title of the act of 1888 is “An act concerning taxes and assessments in villages and other municipal corporations governed by a board of trustees, and making same a first lien on real estate and authorizing sale for the payment of the same.”

The act of March 25th, 1895, is a supplement, with the same title.

The first section of the act of 1888 provides

“that such taxes and assessments as may be lawfully levied, imposed or assessed by any board of trustees of any village or other municipal corporation governed by a board of trustees *. * * shall be, become and remain a first and paramount lien upon the lands or real estate on account of which the same were so levied or assessed, until paid.”

This provision makes it clear that the act was intended to apply only to such villages as were governed by a board of trustees and such other municipal corporations as were governed by a board of trustees.

If the title of this act was “An act concerning taxes and assessments in villages of this state/’ and was made to apply, by its enacting clauses, to all the villages of this state, it could not be doubted that, under the decisions of this court, it would be a general law, and valid and effectual to establish the superior position of South Orange in this case.'

The constitutional mandate is that “every law shall embrace but one object, and that shall be expressed in the title.”

The title of these acts of 1888 and 1895 declare that the proposed legislation shall apply “to villages governed by a board of trustees and other municipal corporations governed by a board of trustees.”

There may lie somewhere concealed in this title a purpose to legislate only for villages, but to declare that such a purpose is expressed in this title is to assert what is clearly disproved by simply reading it.

Who knows to what villages or to what other municipal corporations the title of this act or its provisions apply by reason of the fact that they are governed by a board of trustees ?

It is true that courts will take notice of all public acts without specially pleading them, but this rule does not charge the general public, for whose benefit the constitutional provision is intended, with a knowledge of the fact (if such were the fact) that villages only are governed by a board of trustees. The insistment that the title'includes villages only is argumentative; it does not show that it is expressive of the object of the act.

The argument is this: All villages have a board of trustees, and therefore the title includes all villages. No other municipality has a board of trustees, and therefore it does not include any municipality except villages. It cannot be denied that it does apparently include other municipalities, and it is therefore manifestly misleading.

The rule that all men are presumed to know the law, however broadly applied, does not make the title of these acts an express declaration that it is an act concerning villages only.

That expression must be found in the title of the act to validate it, and it is not there.

The strictness with which this provision of the organic law is enforced is shown by the eases which hold that the title of an act is a limitation upon the sphere within which its enacting clauses can be given effect. Evernham v. Hulit, 16 Vr. 53; Hendrickson v. Fries, 16 Vr. 563; Dobbins v. Northampton, 21 Vr. 496; Allen v. Bernard’s Township, 28 Vr. 303; Cooper v. Springer, 48 Atl. Rep. 605.

It logically follows that an act, which by its title purports to apply to all classes of municipalities, will not be valid if its provisions are restricted to one of the classes. Beverly v. Waln, 28 Vr. 144.

The reason is that the title would be misleading instead of clear and expressive.

In my judgment it was to guard against such legislation as that under review that the interdict in the fundamental law was adopted. If this title is approved, an ingenious way has been devised to conceal the purpose of legislative acts.

Again the legislature, in the title of these acts, proclaimed that it intended to pass an act concerning villages governed by trustees, and other municipalities governed by trustees; not concerning all, but concerning some villages and some other municipalities.

It expressly negatives the idea that the act was to apply to villages only. The basis of classification adopted and declared by the legislature was the fact that these political corporations were governed by a board of trustees.

Language cannot express such intention more clearly.

In Ross v. Winsor, 19 Vr. 95, an act providing “for additional powers and certain changes in the government of certain localities governed by commissioners,” was held to be special and unconstitutional.

The like judgment was rendered in Dobbins v. Long Branch Commissioners, 30 Vr. 146. The mere mode of government furnishes no substantial basis of classification for legislation.

So in the case sub judice the classification adopted is illusory and unsubstantial. There is no reason why municipalities not governed by a board of trustees, whether villages, towns, boroughs or cities, should not have a like extension of the lien for taxes and assessments.

The town of Union, in the county of Hudson, is governed by six councilmen. P. L. of 1864 p. 661.

The town of Clinton, in the county of Hunterdon, is governed by a mayor and common council. P. L. of 1866 p. 778.

The act concerning the town of Newton makes the town committee the ruling body. P. L. of 1864 p. 200.

The town of Keyport is governed by a “board of commissioners.” P. L. of 1870 p. 10@2.

The town of Red Bank is governed by a “board of commissioners.” P. L. of 1870 p. 1070.

The legislature having declared its will to be that the acts of 1888 and 1895 should apply as well to other municipalities governed by a board of trustees as to villages so governed, it cannot reasonably be conceived that the towns of Neyport and Red Bank were intended to be excluded from the benefits of this legislation by the narrow criticism that a “board of commissioners” is not a “board of trustees,” within the meaning of those acts.

“A board of commissioners” is just as much “a board of trustees” as if it had been so denominated in the incorporating acts, and in my judgment the towns of Keyport and Red Bank are within the operation of the acts of 1888 and 1895.

The effect of this is to render these acts special and local, because other towns and other municipalities not governed by a board of commissioners or a board of trustees are not made subject to them. The basis of classification being illusory, the act is special and not general.

These acts are therefore invalid for the reasons :

(1) That the title is misleading and not express.

(2) The basis of classification adopted by the legislature is illusory and unsubstantial.

I agree, therefore, with the opinion of Vice-Chancellor Pitney that taxes in South Orange are a paramount lien for three years only from the time they are payable.

The decree of the chancellor should be affirmed.

Collins, J.

(dissenting).

The act of 1888 and its supplements plainly refer only to municipal corporations, and therefore not to unincorporated villages. An incorporated village is defined to be “a small town with limited corporate powers exercised by a board of trustees.” Stand. Diet. This definition has been approved in this court. Hermann v. Guttenberg, 34 Vr. 616. The legislation in question includes all incorporated villages. The draughtsman of the act of 1888, in order to make sure of excluding no municipality properly belonging to the class, so framed title and enactment as to embrace all municipal corporations, if there were any such that were, in fact, villages, though not so in name. This unnecessary precaution cannot invalidate the law. There was, and is, no such corporation, .unless we adopt the strained construction that the governing bodies of all municipalities are trustees, as, in a broad sense, they are. That construction, however, would not avoid the law, but would make it general beyond question. Taking the narrower construction we will find that the theoretical definition above quoted is also practically correct in this state. Prior to the adoption of the constitutional amendments of 1875 there were but two incorporated villages, namely, South Orange (P. L. of 1869 p. 645; P. L. of 1872 p. 1203; P. L. of 1875 p. 395) and Irvington. P. L. of 1874 ¶- 623. Both were governed by boards of trustees. The general act incorporating villages (Gen. Stat. p. 8718) provides for such boards. No municipality except a village has been, or is, so governed. Before 1860 certain property-owners, on their filed map, styled the territory embraced in it the village of Carlstadt, in the county of Bergen. This territory lay, and still is, within the township of Lodi. By “An act to authorize the inhabitants of the village of Carlstadt, in the county of Bergen, to improve the sidewalks of the streets of said village,” approved March 12th, 1860 (P. Ij. of 1860 p. 284), the landowners of this “village” were authorized to elect commissioners for the purpose of compulsory improvement of sidewalks. The taxes and assessments levied were collected by the township authorities. By a supplement (P. I. of 1869 p. 551) the powers of the act were extended to the streets themselves, and by a further supplement (P. L. of 1878 p. 770) to lighting the streets. By this last supplement all powers were vested in a board of trustees, and a clerk and collector were authorized. This legislation as to Carlstadt, unconstitutional as it probably is, doubtless prompted the phraseology of the act of 1888. By any possible criterion taxes and assessments leviable under it come within the general legislation of 1888 and 1895. A careful search discloses no municipality .governed by a board of trustees that is not a titular village. Such legislation is.therefore general, under recent adjudications. It is, in my judgment, prospective only.

The decree should be reversed, and the taxes levied since 1887 .should be adjudged paramount liens.

’ . For affirmance—Yan Syckel, Garrison, Fort, Garretson, Bogert, Krueger, Adams, Yredenburgi-i, Yroom—9.

For reversal—Ti-ie Chiee-Justice, Dixon, Gummbre, Collins, Hendrickson, Yoori-iees—6.


author: Dixon, J.

text:
    The Travellers Insurance Company, appellant, v. Aaron H. Moses, trustee, et al., respondents.
    [Filed June 17th, 1901.]
    A policy of insurance against the loss sustained by an employer through accidents happening to his employes, contained the following clause: “No action shall lie against the [insurance] company as respects any loss, under this policy, unless it shall be brought by the assured himself to reimburse him fqr loss actually sustained and paid by him in satisfaction of a judgment after a trial of the issue.”—Held, (1) that not the amount of the employe’s judgment, but the amount paid by the employer thereon, was the sum for which the insurer was responsible; (2) that the transfer of the employer’s property to a trustee in bankruptcy, by operation of the United States Bankrupt act, was payment within the requirement of this clause, and perfected the liability of the insurer for so much as the employe was entitled to receive out of the bankrupt’s estate; (3) that this liability of the insurer passed, by force of the Bankrupt act, to the trustee in bankruptcy, as assets of the estate, and (4) that the amount for which the insurer is liable will be determined by ascertaining what percentage all the assets of the bankrupt, outside of this policy, will pay on all the debts proved against the estate, outside of the employe’s judgment; the insurer is answerable for the same percentage of that judgment.

      On appeal from an order advised by Yice-Chancellor Pitney in Beacon Lamp Co. et al. v. Travellers Insurance Co., which, opinion is reported in 16 Dick. Ch. Rep. 59.

      Mr. Freeman Woodbridge, and Mr. É. I. Myers (of the New York bar), for Moses, trustee, et al.

      Mr. Alan II. Strong, for Mary Bardzik.

      Mr. George Holmes, Mr. Charles C. Black and Mr. Charles L. ■ Corbin, for the Travellers Insurance Company.'
   The opinion of the court was delivered by

Dixon, J.

The object of this bill is to enforce the contract made February 20th, 1897, between the Travellers Insurance Company and the Beacon Lamp Company, by” which the insurance company agreed to indemnify the lamp company against loss from liability for damages on account of bodily injuries accidentally suffered by any employe of the lamp company up to February 15th, 1898. The contract limited the liability of the insurance company to $5,000 for injuries to one person, and contained this provision:

“15. No action shall lie against the [insurance] company as respects any loss under this policy, unless it shall be brought by the assured himself to reimburse him for loss actually sustained and paid by him in satisfaction of a judgment after a trial of the igsue.”

On January 12th, 1898, the lamp company became liable to Mary Bardzik, one of its employes, for damages on account of 'bodily injuries accidentally suffered by her, and on January 23d, 1899, she obtained judgment therefor against the lamp company in the supreme court of this state for $6,066.78 after trial of the issue.

On the' day last mentioned a petition in bankruptcy was filed against the lamp company in the United States district court for the southern district of New York, and in February, 1899, a similar petition was filed in the United States district court for New Jersey, and thereupon, in March, 1899, the lamp company was adjudged bankrupt, and Aaron EL Moses was appointed trustee in bankruptcy and qualified as such. Afterwards Mary Bardzik proved her claim in the bankruptcy proceedings and it was duly allowed.

On these facts the trustee and the lamp company filed this bill in equity against the insurance company, making Mary Bardzik also a party defendant, to require the insurance company to pay to her the sum for which it is responsible. Mary Bardzik answered, and in her answer set forth, “by way of cross-bill,” the same facts as were stated in the complainant’s bill, and prayed the same remedy against the insurance company. This company demurred to the bill and the cross-bill, and the* chancellor having overruled the demurrer, it appeals.

The argument presented in support of the demurrer is based upon clause 15 of the contract above quoted, and raises the question whether the action is'“brought by the assured to reimburse him for loss actually sustained and paid by him in satisfaction of a judgment.” The contention is that the lamp company has not paid the loss; that payment of the loss is, by the terms of the contract, a condition precedent to an action, and therefore no right of action has yet arisen.

By force of section 70 of the United States Bankrupt act of July 1st, 1898, the property of the lamp company was transferred to the trustee in bankruptcy on his appointment and qualification. This transfer was made for the satisfaction of all claims against the company provable under the act, and when the Bardzik judgment was so proved, it was for the satisfaction of that judgment. From that time the trustee became trustee for her' to the extent of her share of the rights which had passed to him from the company, and to that extent the company had actually paid her trustee and agent by the transfer of its property. The contract of the insurance company does not require that pajunent should be made in cash, and this payment in property is sufficient compliance with its terms.

Before payment was actually made by the lamp company, its right under the contract was substantial and valuable as an asset, but was immature. As soon, however, as payment was made, its right became perfect, and eodern instanti passed by operation of law to the trustee, and the trustee became át once entitled to enforce it.

It is further urged by the demurrant that the right of action contemplated by the contract is one to be pursued at law, not in equity, being a mere money demand upon an express promise.

Doubtless such a right must ordinarily be so prosecuted, but in the present case the right is complicated by the necessity of taking an account of all the assets divisible in the bankruptcy proceedings and of the claims proved against those assets; for without that account it cannot be ascertained how much the lamp company has paid in satisfaction of the Bardzik judgment, which is the extent of the demurrant’s liability. This complication justifies a resort to equity.

We therefore conclude that the trustee is entitled to relief under his bill. The 'joinder of the lamp company as a complainant cannot be objected to on this demurrer. The demurrer to this bill was rightly overruled.

The cross-bill of Mary Bardzik should also be sustained. It prays no relief against the insurance company beyond that asked by the complainant; and as the complainant’s prayer is that the sum due from the insurance company should be paid directly to her, thus in equitable effect assigning the complainant’s claim to her, it was proper that she should affirmatively intervene to protect and enforce the right so acquired. At any rate, if there be any defect in her cross-bill, it is not so apparent as to be noticeable on general demurrer under the rules of the court of chancery. Van Houten v. Van Winkle, 1 Dick. Ch. Rep. 380.

The orders appealed from are affirmed.

The foregoing opinion indicates that the view expressed in the court below, to the effect that the insurance company is bound to pay $5,000 in any event, is not approved by this court.

The obligation of the insurance company was with the lamp company only, and is explicitly defined by the contract, which limits it to such sum, not exceeding $5,000, as the lamp company may have actually paid in accordance with the policy. No person claiming under this contract can enforce any larger obligation, for it rested wholly within the. power of the eontracting parties, subject only to public law, to fix the bounds ■ of liability. The claim of the trustee or of Mary Bardzik therefore must have the same bounds. The lamp company has paid, but it has paid with property, and it remains to ascertain in money the amount of the payment. That can be done without difficulty, when all claims against the bankrupt estate are proved, and all the assets, outside of this obligation of the insurance company, have been converted into cash or definitely valued. Then can be ascertained what percentage all the assets, other than this obligation, will pay upon all the claims, other than ■the Bardzik judgment; and the same percentage of the judgment will be the amount of the liability of the insurance company, provided it does not exceed $5,000, and if it does exceed $5,000, the company will be liable for that sum. In this respect the present contract differs essentially from those wherein the insurer agrees to pay the damages for which the assured may become liable, such as were those considered in Ross v. American Employers Liability Insurance Co., 11 Dick. Ch. Rep. 41.

For affirmance—Gummere, Van Syckel, Dixon, Garrison, Collins, Fort, Garretson, Hendrickson, Bogert, Adams, Vredenburgh, Voorhees—12:

For reversal—None.


text:
    Augustus F. Eggers, executor of Minna Stager, et al., defendants and appellants, v. Effie B. Anderson et al., complainants and respondents.
    [Filed June 19th, 1901.]
    • 1. If the whole scope of an arrangement inter partes is fulfilled by the mere making of a will, then nothing legally binding on him who signs the testamentary writing is contemplated, and he remains at liberty to change his mind and provide for a different disposition of his property.

      2. The court of chancery in this state possesses a general jurisdiction in cases of fraud, as well in cases where the remedy at law is plain, adequate and complete, as in other cases; but when the remedy at law is plain, adequate and complete, the court of chancery is reluctant to exercise its jurisdiction, and will not do so unless the administration of justice will thereby evidently be facilitated.
    3. The complainants were induced to support the testatrix during several years by her fraudulent pretence that she was destitute, when in fact she had a considerable estate in bank.—Held, that the complainants were entitled to be recompensed out of the estate for the money and property so furnished to her, and that, in view of the numerous small items to be considered in ascertaining the compensation due, their bill in equity for such compensation should be sustained.
    On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 16 Dick. Oh. Rep. 86.

      Mr. Adrian Riker, for the appellants.

      Mr. William II. Osborne, for the respondents.
   The opinion of the court was delivered by

Dixon, J.

The complainants, a band of charitable young women styling themselves “The Ever Ready Circle of King’s Daughters,” began in the year 1892 to assist Mrs. Minna Stager, an old German woman living in apparent destitution, and continued doing so until her death in January, 1900. In the year 1897, something ' (it does not appear what) led them to suspect that perhaps she was not really destitute, and they asked her to make a will in their favor. She having consented, the husband of one of them, a lawyer, prepared a will bequeathing all her property to the complainants, and in June, 1897, went with several of them to the hoúse of Mrs. Stager, then about seventy-five years of age, and an interview took place which he describes as follows:

“I said to her, ‘Mrs, Stager, these young ladies have told me that they .have asked you to make a will in their favor in consideration of all that they have done for you, and all that they are doing for you, and all that they expect to do.’ I said, T want to understand from you whether that is your understanding'.’ 1 repeated that twice very clearly. She stated,
‘That is true.’ She said, ‘We have talked about this among ourselves several times, and I am more than willing to do this thing for these girls.’ She said, ‘All the happiness I have had for the last few years they have furnished me, and X am very glad to do this thing for them.’ I then produced the will and read it to her carefully twice. She took it herself and read it. It was then executed in the usual way. I kept the custody of the will and gave her a copy.”

Not long afterwards the will itself was, at her request, given to her and she tore it up; then, in December, 1897, she executed another will, revoking all former wills and bequeathing her property to her relatives in Germany, and appointing Augustus F. Eggers her executor. This will has been admitted to probate. The revocation of the first will was not made known to the complainants, and they continued, until her death, rendering to Mrs. Stager the same charitable assistance as before, she still holding out the appearance of utter destitution. During the eight years of their ministration they estimate that they spent for her about $600, gathered partly by" their own contributions, partly by those of their acquaintances, and partly through entertainments managed by them. At Mrs. Stager’s death it was found that in the year 1892 she had in a savings bank about $2,500, to which she added in September, 1892, a deposit of $236, and in February, 1895, one of $150, and she had drawn from the account only three items of semi-annual interest accruing in 1897, 1898, and 1899, amounting to $161.60, so that the balance at her death was about $3,800, and when all charges are paid, her estate will exceed $3,000.

On this state of facts the complainants filed their bill in equity against the executor and legatees under the last will, praying that

“the promise and agreement and will of said Minna Stager in favor of said orators be decreed to be a contract, and irrevocable; and that the same be enforced and the rights of your orators thereunder, or in any manner, in the estate of said Minna Stager, be enforced against said defendants and said estate, and that said defendants and each of them do forthwith account to your orators for all property and estate belonging-to said Minna Stager coming into the hands of any and all of them * * * and that it may be clearly ascertained what amount, by reason of the foregoing, is due your orators, and that your orators may be paid such sum or sums so due them.”

The answer of the defendants deny in substance that the transactions between their testator and the complainants amounted, to a contract, or wore such as to entitle the latter to any relief at law or in equity.

Doubtless a person may enter into a legal obligation to make a certain disposition of his property by will. Johnson v. Hubbell, 2 Stock. 332. Such an obligation does not seem to differ in essence from one concerning the disposition of property by other means. But a will is in its very nature ambulatory, subject to revocation during the life of him who signs it. 1 Jarm. Wills oh. 2; Reid v. Shergold, 10 Ves. 370, 379. Irrevocability would destroy its essence as a will. Hobson v. Blackburn, 1 Ad. Eccl. 278. Said Lord Penzance in Goods of Robinson, L. R. 1 P. & D. 383: “An invariable test when a question is raised as to the testamentary character of a paper, is whether the paper is revocable.” This inherent quality is declared by our statute of wills, and cannot be impaired by private contract. Pacta pnvala jure publico derogare non possunt is one of the maxims of the law, as an instance of which Broom cites' the revocability of wills. Lex. Max. 309 (note a); Vynior’s Case, 8 Rep. 162. If one should, under contract, execute a will and covenant not to change it, and afterwards should revoke it, substituting another, the latter only could be admitted to probate as a will; the other party would obtain redress only by securing, at law or in equity, such remedy for breach of the covenant as the rules of those jurisdictions provide.

From this mutability of wills it follows that if the whole scope of any arrangement is fulfilled by the mere making of a will, then nothing legally binding upon him who signs the instrument is contemplated, the obligatory force of a contract is not intended, and he remains at liberty to change his mind. The claim that a legal obligation is assumed must be supported by something beyond the consent to make a will.

In the arrangement now before us, the words go no further than the making of the will, and we must consider whether the substance fairly imports anything more.

The language in which the lawyer opened the matter to Mrs. Stager seems like a legal formula prepared to introduce a eon-tract, but when applied to the facts, its complexion changes. “In consideration of all that these young ladies have done for you, and all that they are doing for you, and all that they expect to do,” is the professional phraseology. But what the complainants had done and were doing for Mrs. Stager was purely charitable, without desire for pecuniary compensation or thought of legal obligation, and what they expected to do was not declared to be of different character. The substantial import was: “You sec how kindly disposed these young ladies have been and expect to be towards you; will you not show a like disposition towards them ? They have incurred no legal obligation, and they express no purpose to incur any legal obligation for the future, and they ask of you, not that you incur a legal obligation for them, but merely that you execute an instrument, which, if it remain unchanged at your death, will give them all your property, but which in its very nature is changeable at your pleasure as long as you live.” This is the request to which Mrs. Stager, with apparent gratitude and gladness, assented. If the design -had been to present to the mind of Mrs. Stager a proposal that at all events her property should come to the complainants at her death, would not the lawyer have produced a writing not in its nature alterable as she should choose, and if Mrs. Stager had so understood the proposition, knowing that the mere interest upon her funds in bank exceeded the contributions of charity, and cunning as she evidently was, would she not have refused or at least withheld consent?

I think that under the circumstances the consent to make this will should not be ‘deemed a contract. At the best, it is not certain that the parties meant what they did to amount to a legal obligation, and, as was held by Lord Loughborough in Walpole v. Orford, 3 Ves. 402, 419, which also was a case to enforce an alleged agreement to make a will, such uncertainty is sufficient to stay the hand of a court of equity.

But there is another basis on which the bill may rest.

The testimony fully supports the allegation of the complainants that their contributions to Mrs. Stager were induced by her fraudulent representations as to her means of living, and the prayer of the bill is sufficient to entitle the complainants to relief on that ground, if a court of equity is competent to afford relief. The bill prays (inter alia)

“that the rights of your orators * * * in any manner, in the estate of said Minna Stager be enforced against said defendants and said estate, * * * and that it may be clearly ascertained what amount, by reason of all the foregoing, is due your orators, and that your orators may be paid such sum or sums so due them.”

That the jurisdiction of the English court of chancery extended to such cases is clear. In Colt v. Woollaston, 2 P. Wms. 154 (1723), the complainants had been induced by fraudulent representations to pay the defendants £240 for shares in a patented scheme to extract oil from radishes, and brought their bill to be repaid, and a decree was made that the defendants repay the sum, with interest, the master of the rolls saying: “It is no objection that the parties have their remedy at law, and may bring an action for moneys had and received for the plaintiffs’ own use; for, in cases of fraud, the court of equity has a concurrent jurisdiction with the common law, matter of fraud being the great subject of relief here.” In Chesterfield v. Jansen, 2 Ves. Sr. 125, 155, Lord Hardwicke said that a court of equity has undoubted jurisdiction to relieve against every species of fraud. In Evans v. Bicknell, 6 Ves. 174, which was a bill to recover from the defendant money paid by the plaintiff to a third person, in reliance on false representations which the defendant had wrongfully enabled the third person to make, Lord Eldon said: “If there is a jurisdiction at law in such cases, there is also a jurisdiction in equity.” And speaking of Pasley v. Freeman, 3 T. R. 51, the leading case at law, where, in 1789, the king’s bench had maintained an action on the case for fraudulent representations regarding the credit of a third person, the lord chancellor said: “It has occurred to me .that that case, upon the principles of many decisions in this court, might have been maintained here, for it is a very old head of equity that if a representation is made to another person, going to deal in a matter of interest upon the faith of that representation, the former shall make that representation good, if he knows it to be false.” In Slim v. Croucher, 1 De G., F. & J. 518, where the complainant had suffered loss through a misrepresentation made by the defendant, Lord Campbell, sitting in the court of appeal in chancery, said: “The defence set up in this suit is that there was a remedy at law, and that that is the only remedy competent to the plaintiff. Now, that there was a remedy at law, I think, is quite clear. * * * I am of opinion, however, that this belongs to a class of cases over which courts of law and courts of equity have a common jurisdiction, and in which the procedure of both jurisdictions is adopted for doing justice.” Lord-Justice Knight Bruce said: “The only point reasonably arguable was, in which of the courts in this country redress should be sought, and it has been said that redress should be sought in a court of law. It is true that (according to modern practice—a useful and beneficial practice, I believe) a court of law would afford 'redress in the case by means of an action, with the assistance of a jury, but the courts of law in this country exercise jurisdiction in these cases by means of a gradual extension of their power, an extension which I believe has been useful to society; and we know that that does not deprive the courts of equity of their ancient and undoubted jurisdiction, which they exercised before courts of law had enlarged their limits. The observation is familiar—and some of us have heard it used by Lord Eldon—that the jurisdiction not only belongs to this court, but belonged to' it originally.” Likewise, Lord-Justice Turner said: “I think that if we were to grant any relief upon this appeal, we should be very much narrowing an old jurisdiction of this court by confining it to cases in which it has been exercised. We should, I think, be taking the cases as the measure of the jurisdiction, instead of the examples of that jurisdiction.” In Blair v. Bromley, 5 Hare 542; S. C., 2 Phil. 354; Ramshire v. Bolton, L. R. 8 Eq. 294, and Hill v. Lane, L. R. 11 Eq. 215, the jurisdiction was reasserted and exercised. These cases and others cited in them demonstrate the right of the English courts of equity to administer relief in cases like the present.

This jurisdiction is fully recognized by writers on equity jurisprudence. Thus 1 Story Eq. 195:

“With the exception of wills, the courts of equity may be said to possess a general, and perhaps a universal, concurrent jurisdiction with courts of law in cases of fraud cognizable in the latter, and exclusive jurisdiction in cases of fraud beyond the reach of the courts of law. The jurisdiction in matters of fraud is probably coeval with the existence of the court of chancery.”

And Professor Pomeroy (2 Pom. Eq. Jur. § 912) asserts that

“the [English] doctrine is fully settled by an unbroken line of decisions extending to the present day ; that with one remarkabje exception [fraudulent wills], the jurisdiction of equity exists in and may be extended over every case of fraud, whether the primary rights of the parties are legal or equitable, and wnetlier the remedies sought are equitable or simply pecuniary recoveries, and even though courts of law have a concurrent jurisdiction of the case and can administer the same kind of relief. * * * The only question, therefore, presented to an English court is not whether the equitable jurisdiction exists, but whether it should be exercised.”

Undoubtedly the American courts have not generally upheld so broad a jurisdiction, being influenced probably, and sometimes controlled, by enactments similar to the United States Judiciary act of 1789, which declared that “suits in equity shall not be sustained in either of the courts of the United States in any case where a plain, adequate and complete remedy may be had at law.” But New Jersey is distinguished from her sister states by her adherence to the standards of the mother country .respecting both rights and remedies in equity, and I know of no constitutional or statutory provision or judicial decision in this state which can be regarded as withholding or withdrawing from our court of chancery any jurisdiction possessed by its English prototype. True the jurisdiction of equity, in cases of fraud remediable at law, has not been much invoked, but that may be accounted for, in laTge degree, by the less expensive, equally efficient and in former times more speedy, remedy secured in the courts of law. When resorted to, however, the jurisdiction of equity has not been doubted. Thus, in Winans v. Winans, 4 C. E. Gr. 220, where the complainant claimed that the defendant, by fraudulent representations concerning the encumbrances on land sold by the complainant to the defendant, had induced the former to refrain from demanding before conveyance a part of the price agreed upon, and the prayer was that the defendant should be decreed to pay the money thus fraudulently retained, the cause was argued by the present chancellor for the complainant and by a former chancellor for the defendant, without question as to the jurisdiction, and a decree for the complainant was put by Chancellor Zabriskie distinctly on the ground of fraud in the non-payment of the price, and was to the effect that the defendant should pay the same. For such a remedy the courts of law would have been equally available.

The generality of the jurisdiction, as well as the limited scope in which courts of equity are disposed to exercise it, is indicated by the case of Krueger v. Armitage, 13 Dick. Ch. Rep. 357, where a bill to recover damages on a fraudulent sale of stock was demurred to for want of jurisdiction, and Vice-Chancellor Emery said: “In support of the jurisdiction the settled rule is relied on that equity has jurisdiction concurrent with law in cases of fraud.” But he held that in the case before him the jurisdiction should not be exercised, because it had been challenged in limine, and the assessment of damages could be made as well by a jury as by the court. This case was followed in Polhemus v. Holland Trust Co., 14 Dick. Ch. Rep. 93; on appeal, 16 Dick. Ch. Rep. 654, where the complainant’s claim was of like character, and Mr. Justice Collins, delivering the opinion of this court, expressly approved the doctrine declared as above by the learned vice-chancellor, accompanying his approval, however, with the unsupported statement that “for the recovery of damages the exclusive remedy in this state lies with the law courts.”

In the case now pending the defendants have not questioned the jurisdiction of the court or objected to its exercise, and the court of chancery has exercised its jurisdiction; the claim of the complainants, as we maintain it, is for cash and goods furnished, the value of which is ascertainable as readily by a master as by a jury, and the fact that many small items are probably to be taken into account makes the master’s office an apter place for getting at the truth.

We are therefore of opinion that the cause -shordd be retained for the purpose of enabling the complainants to secure a decree requiring the executor to pay out of the estate such sum as will recompense them for the money and property which they were induced to furnish to and for Mrs. Stager because of her fraudulent pretence of poverty. As the testimony heretofore taken was not presented with this end clearly in view, the parties should have an opportunity to offer fuller proof respecting that matter, and for that purpose the decree should be reversed and the cause remitted to the court of chancery for further proceedings in accordance with this opinion.

For reversal■—-Van Syckel, Dixon, Garrison, Gummere, Collins, Fort, Hendrickson, Bogert, Vredenburgh, Voorhees, Vroom—11.

For affirmance—Adams—1.


text:
    Gertrude N. Boice et al., complainants, v. Cornelius Conover et al., defendants.
    [Filed July 2d, 1901.]
    1. The appellate court need not consider grounds of objection to the decree below, which were not presented to the court below, and are not mentioned in the petition of appeal.
    2. A chattel mortgage, which, by the statute, is absolutely void against the creditors of the mortgagor, should not be allowed to interfere with the right of such a creditor to collect his debt in the most speedy and efficacious manner.
    3. A mortgagor who did not owe the mortgage debt, nevertheless warranted the mortgaged chattels to the mortgagee, the latter having failed to comply with the statute so as to render his mortgage valid against the creditors of the mortgagor, one of those creditors levied upon and sold the chattels to satisfy his judgment.—Held, that the mortgagee was entitled to be subrogated to the lien of that judgment upon the mortgagor’s lands.

      On appeal of Edwin Allen, a defendant, from a decree advised by Vice-Chancellor Emery. See 35 Atl. Rep. 102.

      Mr.- Alan II. Strong, for the appellant.

      Mr. John S. Voorhees and Mr. Charles II. Runyon, for the respondents.
   The opinion of the .court was delivered by

Dixon, J.

The first and second objections to the decree below urged in the brief of counsel for the appellant are not set forth in the petition of appeal, and, so far as appears, were, not adverted to in the court below.; they therefore require no consideration here. Insurance Co. v. Semple, 11 Stew. Eq. 575; Cumberland Lumber Co. v. Clinton Manufacturing Co., 12 Dick. Ch. Rep. 627.

The third objection rests on these facts: Cornelius N. Conover and William Allen were partners in the coal and feed business, and on September 8th, 1893, executed to Edwin Allen, the appellant, a mortgage upon the chattels and credits of the firm, to indemnify him against endorsements made by him for the firm, and to secure to him payment of $2,000, which William Allen owed him for money loaned; in this mortgage Conover, as well as William Allen, covenanted to warrant and defend the mortgaged property to the appellant against all persons whomsoever; on December 12th, 1893, the Mapes Formula and Guano Company recovered in the supreme court a judgment against Conover and William Allen for $1,130.11, and issued thereon an execution, under which a levy was made upon the mortgaged chattels, and this levy secured a lien prior to the mortgage because of misstatements in the affidavit of the appellant annexed to his mortgage; the sale of these chattels produced the net sum of $937.09, which was paid to the Mapes company; the Mapes judgment was also a lien on certain lands of Conover. On these facts the claim of the appellant is that, as the Mapes company had a lien upon the land, as well as upon the chattels, while he had only a subsequent lien upon the chattels, the company should have been compelled in equity to resort to the land before selling the chattels, or, if not, then the appellant should be subrogated to the lien of the company upon the land in lieu of his lien upon the chattels which had been defeated through the judgment.

The claim to marshal the assets was denied in the court below, because, by the statute, the appellant’s mortgage was made “absolutely void” as against the judgment creditor, and therefore could not be allowed to interfere with the creditor’s right to resort to the most speedy and efficacious mode of obtaining satisfaction. To this we assent.

The claim for subrogation was also denied below, on the ground that Conover, the owner of the land, did not owe the mortgage debt so far as it remained unpaid at the time of making the final decree, the firm’s notes which the appellant had endorsed having then been paid, and therefore the appellant had no right to ask that Conover’s individual property should first be devoted to the payment of the firm’s debts in relief of the mortgage.

In this course of reasoning the learned vice-chancellor seems to have overlooked the fact that, in the mortgage, Conover had covenanted to warrant and defend the mortgaged property to the appellant against all persons. This created an individual obligation on the part,of Conover to see that, at least through no default of his, should the mortgagee be deprived of the security of his mortgage. Conover thus became bound to the mortgagee to discharge every duty resting upon him, the breach of which would disturb the mortgage. One of these duties was the payment of his debt to the Mapes company, and when, because of his failure to pay that debt, the creditor resorted to the mortgaged chattels for satisfaction and defeated the mortgage, Conover’s obligation to the appellant was violated. Thus the property which Conover had covenanted with the appellant to have appropriated for the latter’s benefit was applied to Conover’s own benefit, in exoneration of his land from a debt which he was bound to pay. Such a situation is inequitable, and can be remedied only by subrogating the appellant to the lien of the Mapes judgment as against Conover, so far as that claim has been satisfied out of the mortgaged chattels. This remedy does no wrong to Conover, although it is rendered necessary by the failure of the appellant to make his mortgage valid against Conover’s creditors; for if the appellant’s mortgage had been so secured, Conover’s individual property would have been chargeable with so much of the Mapes judgment as has been raised out of the mortgaged chattels, and the same charge is now to be effected by subrogation. We are therefore of opinion that as against Conover the appellant is entitled to such a lien upon Conover’s land for the sum of $937.09 and interest, as the Mapes judgment held immediately before the payment of that sum.

Let the decree below be modified accordingly.

For reversal—The Chief-Justice,Yan Syckel, Dixon, Garrison, Gummere, Collins, Fort, Garretson, Hendrickson, Bogert, Adams, Yredenbürgi-i, Yoori-ibes, Yroom—14.

For affirmance—None.


author: GrUMMERE, J.

text:
    The Trenton Street Railway Company, respondent, v. The Pennsylvania Railroad Company et al., appellants.
    [Filed June 25th, 1901.]
    By the eighth section of “An act to provide for the incorporation of street railway companies and to regulate the same,” passed April 6th, 1886, as amended March 27th, 1889 (Gen. Stat. p. 8216), it is provided “that the board of aldermen, common council or township committee, upon the petition of the directors of any company incorporated under this act, or a majority thereof, for a location of the tracks of its railway therein, conformably to the route designated in their articles of incorporation, or for an extension of the samé, shall give notice to all parties interested [in a specified manner] of the time and place at which they will consider such application for location; and, after hearing, they shall pass an ordinance refusing such location or extension, or granting the same, or any portion thereof, under such lawful restrictions as they may deem the interests of the public require; and the location or extension thus granted shall be deemed and taken to be the true location or extension of the tracks of the railway, if an acceptance thereof, in writing, by the directors, shall be filed with the secretary of state within thirty days after receiving notice, and a copy thereof delivered to the clerk or other equivalent officer of the municipality or township.”—Held, that the right of a street railway company, incorporated under this act, to construct an extension of its railway, depends, first, upon municipal action granting it authority to do so, with such restrictions as the municipal body may deem proper, and second, the filing by the company of an acceptance of the grant, with its restrictions, in the office of the secretary of state, and the delivery of a copy thereof to the clerk of the municipality.—Held further, that the statutory provision cited empowers the municipality to grant to a street railway company a right to extend its railway from its legally authorized terminus, but that it does not justify a grant to construct an addition to an extension which it has built without legal warrant.
    On appeal from an order advised by Vice-Chancellor Reed, whose opinion is reported in 1/.7 Atl. Rep. 819.

      Mr. Alan U. Strong, for the appellants.

      Mr John U. Baches, for the respondent.
   The opinion of the court was delivered by

GrUMMERE, J.

This is an appeal from a decree of the chancellor defining the mode in which, the extension of the street railway of the respondent shall cross the steam railroad of the appellants in the village of Yardville, the proceedings being had under the act of March 22d, 1895, entitled “An act to regulate the crossing points not within, the limits of cities of this state, of steam railroads, by steam or electric railroads hereafter to be constructed.” Gen. Stat. p. 8717. Upon an earlier application of the respondent, made, under this statute, for the same purpose, this court held, among other things, that it was incumbent upon the applicant to show that it had “legally laid its route over the appellants’ railroad, and, as one of the steps to that end, that it had lawful power to lay out and construct its proposed extension.” Trenton Street Railway Co. v. United New Jersey Railroad and Canal Co., 15 Dick. Ch. Rep. 500.

One of the grounds upon which this appeal is based is that no right has been shown to exist in the respondent to build the extension which it proposes to construct across the railroad of the appellants. It appears by the respondent’s petition and by the proofs in the ease that the Trenton Street Railway Company was incorporated June 28th, 1898, by the consolidation of the Pennington Avenue Street Railway Company, the Mulberry Street Passenger Railway Company, the Ewing Passenger Railway Company and the Trenton Passenger Railway Company, Consolidated; and that the latter of these companies was itself created by the consolidation on September 21st, 1891, of the Trenton Horse Railroad Company, the City Railway Company, the Hamilton Township Street Railway Company and the South Clinton Avenue and Broad Street Railway Company. This last-mentioned company was incorporated under an act entitled "An act to provide for the incorporation of street railway companies and to regulate the same,” approved April 6th, 1886. Gen. Start, p. 3216.

By the eighth section of this act, as amended March 27th, 1889, it is provided

“that the board of aldermen, common council or township committee of any municipality or township, upon the petition of the directors of any company incorporated under this act, or a majority thereof, for a location of the tracks of its railway therein, conformably to the route designated in their articles of incorporation, or for an extension of the same, shall give notice to all parties interested by publication in one or more newspapers published and circulating in such municipality, or, if none be published there, then by posting in five of the most public places in such municipality or township, at least fourteen days before their meeting, of the time-and place at which they will consider such application for location ; and, after hearing, they shall pass an ordinance refusing such location or extension, or granting the same, or any portion thereof, under such lawful restrictions as they may deem the interests of the public require; and the location or extension thus granted shall be deemed and taken to be the true location or extension of the tracks of the railway, if an acceptance thereof, in writing, by said directors, shall be filed, with the secretary of state within thirty days after receiving notice thereof, and a copy thereof delivered to the cleric or other equivalent officer of the mmicipality or township.”

Pursuant to the authority conferred by this section, the township committee of Hamilton township, on the 17th day of Nov ember, 1890, upon the petition oí the directors of the South Clinton Avenue and Broad Street Railway Company^ passed an ordinance granting to it the right to construct an extension of its railway from the city line of Trenton to Harrison avenue, in said township, and locate said extension upon South Clinton avenue and Cedar lane. Within the thirty days prescribed by the statute an acceptance of the ordinance, in writing, by the directors of the company, was filed with the secretary of state, and a copy thereof delivered to the township clerk. Before this company had constructed its extension, however, it became merged into the Trenton Passenger Railway Company, Consolidated, and this latter company thereby became vested with all the rights, privileges and franchises, as well as all the property, rights of way and all and every the other interests of .the South Clinton Avenue and Broad Street Railway Company. Gen. Stat. p. 3886 §§ 79, SO.

On the 13th day of May, 1893, the Trenton Passenger Railway Company, Consolidated (hereinafter designated the consolidated company), was granted permission by the township committee of Hamilton township to extend its railway from the city line of the city of Trenton, through South Broad street to Cedar lane, and thence from the intersection of Harrison avenue to the toll-house of the Crosswicks and Trenton Turnpike Company. On the 8th day of March, 1894, the said township committee passed a further ordinance granting authority to the consolidated company to extend its railway from the said toll-house, along the turnpike road,of the Crosswicks and Trenton Turnpike Company, to the-village of White Horse. The consolidated company failed to file with the secretary of state an acceptance of either one of these two ordinances, within the thirty days required by the statute, or at any other time, but, notwithstanding this omission, proceeded to construct an extension of its railway from the Trenton city line to the toll-house of the Crosswicks and Trenton Turnpike Company.

So much of this extension as lies between the Trenton city line and Harrison avenue was authorized’both by the ordinance of November 17th, 1890, above referred to, and by that of May 13th, 1893, and, as an acceptance of the ordinance of November 17th, 1890, was filed with the secretary of state, and a copy thereof delivered to the clerk of the township, in accordance with the provision of the statute, and as the consolidated company was, at the time when it built this portion of its extension, vested with all the rights, privileges and-franchises of the South Clinton Avenue and Broad Street Railway Company, and all its property and rights of way, it had full power and authority to construct the same by virtue of that ordinance and its acceptance. But it had no legal right to construct that part of said extension which lay beween Harrison avenue and the toll-gate of the Cross-wicks and Trenton Turnpike Company, for the reason that no acceptance of the ordinance authorizing it had ever been filed with the secretary of state.

The right of a street railway -company to extend its railwaj1-, given by the eighth section of the act of April 6th, 1886, as amended in 1889, is made, by the statute, to depend upon two conditions—first, the passage of an ordinance, by the municipal body, granting the proposed extension and locating the tracks, under such restrictions as said body may deem the interests of the public require, and second, the filing of an acceptance of such ordinance, within thirty days, in the office of the secretary of state, and the delivery of a copy thereof to the clerk or other equivalent officer of the municipality. The failure of the company to file its acceptance of the ordinance within the specified time is just as fatal to its right to construct its proposed extension as is action by the municipal body refusing its application.

No action was taken by the consolidated company under the ordinance of March 8th, 1894, which authorized it to extend its railway from-the toll-house of the Crosswicks and Trenton Turnpike Company to the village of White Horse; but, after the formation of the Trenton Street Railway Company (the respondent here), that company, having become vested with all the rights, privileges and franchises of the consolidated company, and all its property and rights of way, proceeded to construct the extension of its railway from the said toll-house to White Horse. For the reason already stated this action on the part of the respondent was not authorized by the statute, and this portion of its extension, consequently, is without a legal right to exist.

On the 8th day 'of December, 1898, the township committee of Hamilton township, on the petition of the directors of the respondent, the Trenton Street Railway Company, passed an ordinance granting to it a right to construct an extension of its railway from the village of White Horse, along the turnpike road of the Crosswicks and Trenton Turnpike Company, to the village of Yardville. An acceptance of this ordinance was filed with the secretary of state by the respondent within the thirty days required by the statute; and it is by virtue of this ordinance and its acceptance that the respondent claims to be entitled to have the chancellor define the mode in which the extension authorized thereby shall cross the steam railroad of the appellants. We do not think that this latter ordinance conferred upon the respondent any power to construct the so-called extension of its railway from the village of White Horse to Yardville. An extension of a railway, as the word signifies, is a prolongation of it from one of its termini to some other designated point. The legal terminus of the respondent’s railway, at the time of the passage of this ordinance, was (and is now, so far as the proofs show) at Harrison avenue, and not at White Horse; and the grant contained in the ordinance of December 8th, 1898, was, consequently, not to construct an extension, but, rather, an independent railway. Such a grant was ultra vires the township committee of Hamilton township, and altogether nugatory.

Not only has the respondent failed to show that it has legally laid out its route over the appellants’ railroad, and, as one of the steps to that end, that it had lawful power to lay out and construct its proposed extension, but, on the contrary, it has been made to appear affirmatively that it has no such power.

For this reason the decree appealed from should be reversed.

For reversal—Van Syckel, Garrison, Gummere, Collins, Hendrickson, Bogert, Adams, Vredenburgh, Vroom—9.

For affirmance—None.


author: Gummere, J.

text:
    Lottie R. Russell, appellant, v. Benjamin Russell et al., respondents.
    [Filed August 23d, 1901.]
    1. A written antenuptial agreement, complete in all its parts, cannot be added to or varied by parol.
    2. A party to a contract cannot rescind it on the ground of fraud and, at the same time, retain a benefit from its .partial execution by his co-contractor.
    On appeal from a decree advised by Vice-Chancellor Grey, whose opinion is reported in 15 Dich. Ch. Bap. 282.

      Mr. Bichará V. Lindabury, for the appellant.

      Mr. David J. Pancoasl, for the respondents.
   The opinion of the court was delivered by

Gummere, J.

On the 22d day of November, 1892, the appellant, in contemplation and consideration of marriage with one John Russell, entered into a written antenuptial agreement with him, wherein and whereby she agreed to accept at his death $5,000 in lien of all other claims against his estate. Shortly after' the execution of this agreement the parties thereto were married. At that time the appellant was about fifty years of age and Russell was about seventy-five. The latter died on the 20th of July, 1897, leaving a last will and testament, in and by which he left to the trustee' named in the antenuptial agreement, for the benefit of his wife, the $5,000 provided for in that instrument, and also ten shares of bank stock, which were worth a little over $1,000.

The object of the bill of complaint in this case is to have engrafted upon, and made a part of,'the written agreement a parol contract, which materially alters and varies the terms of the writing, or, in the alternative, to have the parol contract enforced as an additional agreement between the parties, collateral to the written one. This alleged parol contract was, in brief, a promise, made by the deceased husband at the time of the execution of the written antenuptial agreement, that, if his wife would sign the writing, he would make a liberal provision for her by his will; and the allegation of the bill is that, the testamentary provision made for hex by the testator is anything but liberal, in view of the amount of the estate left by him, which exceeded $200,000 in value.

Eealizing the difficulty of enforcing this parol contract, in view of the fact that it was made at the same time as, and materially alters the terms of, a written instrument complete in itself, the appellant further seeks, if relief by the enforcement of the parol contract is denied her, to have the written agreement set aside and declared null and void, on the ground that she was induced to execute the same through the fraud of her husband in concealing from her the value of his estate.

We concur in the view expressed by the vice-chancellor that the parol contract cannot be enforced by the appellant, because the statute of frauds provides that all agreements in consideration of marriage shall be in writing; and, further, because of that settled rule of law which prohibits the altering or varying of a written instrument by parol.

Having concluded that the parol contract could not be enforced by the appellant, the learned vice-chancellor considered the question whether she was entitled to have the antenuptial agreement set aside for fraud on the part of her husband in concealing the amount of his estate from her, and determined that no such fraud had been proved. His consideration of this portion of the case embraces an interesting discussion of the extent to which the intended husband is required to disclose to his prospective wife the nature and value of his property, personal as well as real, when they are about to, enter into an ante-nuptial agreement whereby she releases all claim to his estate other than what the agreement gives her.

The conclusion which we have reached upon this branch of the case, however, makes it unnecessary to consider whether the proofs justify the charge of fraud made by the appellant against her husband; or to assent to, or dissent from, the view expresséd by the vice-chancellor as to the extent of the duty of the. intended husband, in making disclosure of the amount and value of his estate, when entering into an antenuptial agreement with Ms future wife. As has been already stated, the appellant’s husband, by his will, devised to the trustee named in the marriage settlement, and for her benefit, the sum of $5,000 provided in that instrument. Of that amount it was proved that the trustee has paid over to the appellant $500. This $500 she accepted from him, and still retains. It is entirely settled that a party to a contract cannot, at one and the same time, repudiate it and retain a benefit from its partial execution. In order to entitle him to rescind he must first restore what he has received under the contract, and thus put the other party to the agreement in his original position. Trenton Passenger Railway Co. v. Wilson, 11 Dick. Ch. Rep. 783; Byard v. Holmes, 4 Vr. 119; Behring v. Somerville, 34 Vr. 572.

This the appellant has not done, and consequently does not stand in a position which entitles her to an annulment of the' contract, even if it be true, as she alleges, that she was induced to enter into it by fraud on the part of her husband.

The decree appealed from should be affirmed.

For affirmance—The Ci-iiee-Justioe, Van Syokel, Dixon, Garrison, Gummere, Collins, Garretson, Hendrickson, Bogert, Adams, Vredenburgi-i, Voori-iees, Vroom—13.

For reversal—None.


text:
    Pauline C. McGean, appellant, v. James J. McGean, respondent.
    [Filed August 30th, 1901.]
    A ease of obstinate desertion is not made out against the husband if it appears that the separation was not against the will of the wife.
    On appeal from a decree advised by Yice-Chancellor Pitne)r, whose opinion is reported in 15 Dick. Ch. Rep. 81.

      Miss Mary Philbrook, for the appellant.
   The opinion of the court was delivered by

Gummere, J.

The appellant, Pauline C. McGean, filed 'her petition in the court of chancery for divorce from her husband on the ground of desertion. The ease came on do be heard before the vice-chancellor ex parte, and his conclusion upon the proofs was that the petitioner had failed to show that she was, at the time of the filing of her petition and had been for two years preceding that time, a bona fide resident of the State of New Jersey. For this reason he refused a divorce.

■ Our examination of the evidence has led us to the conclusion that the question of the bona fieles of the residence of the petitioner is one of considerable doubt; but we find that she has failed to establish the desertion of the defendant, for the statutory period, by that quantum of proof which the law requires; and conclude that, for this reason, she was not entitled to a decree of divorce.

It appears from the testimony that the parties were married secretly on the 9th day of September, 1897, at which time they were both residents of the city of Brooklyn, New York; that they spent the night of their wedding day together at a hotel in that city; that the next day they separated by mutual consent, the arrangement being that the petitioner should return to, and remain with, her mother until the month of November following ; that, during that period, the husband should reside in “the country,” and that when he should receive his share of his father’s estate (which he expected would be in the month of November) the appellant and respondent “would begin housekeeping.” On the 1st day of October, less than three weeks after her marriage, and before the agreed upon time for the resumption of marital relations by the parties had arrived, the petitioner removed to Jersey City, in this state, with the avowed purpose of acquiring such a residence here as would enable her to obtain a divorce from her husband on the ground of desertion. On the 3d day of October, 1899, just two years after the. removal of the petitioner to this state, she filed her petition in this suit. In order to be entitled to a decree, therefore, the burden was upon her to show that, between the 10th clay of September, 1897, when she and her husband separated temporarily by mutual consent, and the 1st day of October, when she had made up her mind to acquire a residence in the State of New Jersey fox the purpose of obtaining a divorce from her husband, the latter willfully deserted her, and that, from that time until the filing of the bill, the desertion was continuous and obstinate. The following are the only facts appearing in the testimony which show the character of the relations of these parties during the period mentioned: On the Saturday night after their wedding the defendant called upon the petitioner at her mother’s house. The petitioner, in her testimony, speaking of this visit, says: “We had playing and singing, and everything was pleasant. He stayed until about eleven o’clock, and said he would call the next day.” It further appears that he did call the -next day, but did not see the petitioner, as she sent word to him by her sister that she was too sick to see him. The case is silent as to what occurred, or was said, if anything, between the defendant and the petitioner’s sister, on this occasion, bearing upon the question of the defendant’s desertion of his wife. It further appears that, about two weeks- after making this call, the defendant wrote a letter to the petitioner, which she received and answered. There is no other testimony in the case upon the subject of the relations of these parties to one another during the time mentioned. It is manifest, therefore, that, if there is anr'thing in the proofs upon which the conclusion can be based that the defendant willfully deserted the petitioner before the 1st day of October, 1897, it must be found in this letter of his to her. The letter, the petitioner says, she destroyed, but she testifies to its contents, portions of which, if her testimony was supported, would, perhaps, justify the conclusion of a desertion at that time by the husband. But what the contents of the letter were, so far as they show an intent on the part of the writer to desert his wife, rests upon the testimony of the petitioner alone, and it is entirely settled in this state that a divorce will not be granted upon the unsupported testimony of the petitioner as to the fact of the desertion. Tate v. Tate, 11 C. E. Gr. 55; Pullin v. Pullin, 2 Stew. Eq. 541; Sandford v. Sanford, 5 Stew. Eq. 420; McShane v. McShane, IS Stew. Eq. 341; Costill v. Costill, 2 Dick. Ch. Rep. 346.

The petitioner’s mother was examined as a witness in the case, and testified-as to some parts of the contents of the letter, which she said that she had read. Those portions, however, show no intent of the husband to desert his wife.

It is insisted, on behalf of the petitioner, that the conduct of the defendant, subsequent to October 1st, 1897, shows that he had no intention of ever resuming marital relations with his wife. Conceding this to be so (although I am unable to discover satisfactory proof of it in the testimony), it cannot benefit the petitioner. Her conduct in removing to this state on that day, with the avowed object of acquiring a residence here for the purpose of obtaining a divorce from her husband at the expiration of two years, and her steadfast holding to that, purpose up to the filing of her petition in this case, demonstrate that the separation was not' against her will, and consequently that the desertion was not an obstinate one, within the meaning of the statute. Moores v. Moores, 1 C. E. Gr. 275; Newing v. Newing, 18 Stew. Eq. 498; Hall v. Hall, 15 Dick. Ch. Rep. 469.

The decree should be affirmed.

For affirmance—Dixon, Gummehe,' Collins, Adams, Vooriiees, Vroom—6.

For reversal—Van Syckel, Garrison, Fort, Hendrickson, Vredenburgh—5.