text:
    Otto Magnus, executor, v. Harry O. Magnus et al.
    [Decided September 30th, 1912.]
    1. That matter may be part of a will by references thereto in the will, it must be a writing, must bo in existence at the time of the execution of the will, and must be referred to with certainty,- so that a provision of a will giving property to one to dispose of in accordance with "my instructions to her” is insufficient.
    2. A bequest of property to one. “to dispose of in accordance with my instructions to her” fails; such reference not identifying the instructions.

      Mr. Edward M. Colie, for the executor.

      Mr. Edward Dudley, for Julius Partz and -others.

      Messrs. Pitney, Harclin & Skinner, for Herbert L. Bicharás and others.

      Mr. J. II. Thayer Martin, for Drank C. Logo.

      Mr. Gilbert Collins, for Clara Seidensticker.
   Stevens, V. C.

This is a bill for the construction of the will of Clara L. Dotger. The controversy hinges on the effect of its third paragraph, which reads as follows:

“Third. In the event that my personal estate shall be insufficient to pay the legacies above named, in full, then I order and direct that the said legacies shall abate proportionately and in the event that there is a residue after the payment of expenses, taxes and all charges against my estate, I give the same to my niece Clara Seidensticker to dispose of. in accordance with my instructions to her. I also give and devise to my said niece Clara Seidensticker the house and lot in which I now reside known as No. 65 Montrose Ave. as long as she and her mother live and after their deaths, I give and devise the said house * * * unto my niece Elsa Norton.”

After the death of Clara L. Dotger there was found in a drawer of her bureau an envelope addressed in .her handwriting to Clara Seidensticker, in which was contained a paper in the same handwriting, reading as follows:

“Monteóse, South Oeange, N. J,
“Dear Claka—So long as T was changing- the will I thought I would' shorten it and tell you what to do. I want you to dispose of the most of my books to friends. The house is for you and your mother as long as you live and then to go to Elsa Norton. I want Claire to have my best pin, pearls and diamonds when she is twenty-five years old or if she marries at that time, if she is old enough to value it. »To Fred Smith I want my set of Shakespeare given and to IVynifred one of my rings or-pins. Give Frank one of the rings and Victor books as you wish and to Maud a few books to Mary Steinhauser a picture. The idea was to give you the house and lot but it is bard work for me to divide the things, so I will have to trust it to you to do. The best you know how—You might offer one carriage to Andrew Smith and do with the others as you wish. You need not feel obliged to live in the house, it will rent readily. I trust you implicitly to do the best you can.
‘Aunt Claea.
“August 1909.
“M.rs. King in Brooklyn I would like you to send a check to. It is .impossible to mention every one.
“C. B. D.
'“I would like Roy to have a thousand dollars and some little keepsake.
“C. L. D.”

The testatrix died in August, 1910. The will is dated November 29th, 1909, and so, if the date of its writing is proved by the letter itself, the letter antedates the execution of the will. The question is whether this letter can be taken as part of the will.

In the sixth American edition of 1 J a/rm. Wills. *99, it is said •that two things are necessary—

’“first, that the will should refer to some document as then in existence; ■secondly, proof that the document propounded for probate, was in fact written before the will was made, and was identical with that referred to in it.”

The will in question reads, “I give the same [my personal estate] to C. S. to dispose of in accordance with my instructions to her.” The testatrix does not here limit herself either to written instructions, or to instructions, written or verbal, given before •the will was executed. Yerbal instructions would satisfjr the language used and so would instructions, verbal or written, given subsequently. All the cases require a writing and hold that it must be in esse at the time of execution; and they all declare 'that uncertainty in the reference is fatal. A leading case is Smart v. Prujean, 6 Ves. 560. There, testator, by will duly attested, gave real estate to J. upon trust (inter alia) that he should apply the rents unto such persons and for such ends as he, the testator, should, by a private letter, or paper, of instructions, which he in his will mentioned he intended to leave with Mrs. J., then residing at Gravelines, or with her successor, for the time 'being, direct or appoint. Immediately after testator’s death, in his bureau in the room in which he had resided, two paper-writings were found in the same envelope with the -will, which envelope was sealed up and endorsed in the hand of the testator, '“The Will of Anthony Lowe.”

It is apparent that the ease cited is stronger for the incorporation of the paper than the case in hand; -for the will there’ expressly mentions a writing, while here the will speaks only of' “instructions” which might have been oral. And yet Lord Eldon-held the identification incomplete. He says: “'There is another ground: not whether the same envelope or superscription is evidence that the testator meant these should he the papers referred' to, but whether I must of necessity collect from the contents of the will that they should be considered the same. The same cover is nothing with reference to the statute, and the superscription has not three witnesses. The true question is, if these papers were found-in the bureau with the will, can I say, from the contents of the will, these two papers are the papers referred to?’ Suppose several other papers were found with them, could I say this will would have enabled me to select these two as the only papers referred to?”

In all the eases cited by counsel there was a writing, and this-writing was referred to in terms sufficient to identify it. Thus, in Dickinson v. Stidolph, 11 C. B. (N. S.) 341, the language was: “I hereby appoint Mrs. S. J. my sole executrix to this my last will revoking all former wills excepting two memorandums-dated 10th May, 1819;” and in Newton v. Seaman’s Friends Society, 130 Mass. 91, “to pay the several legacies according to-the directions written in a book by M. signed by me A. D. and witnessed by said M.”

It would seem, therefore, that the reference in the will under-consideration is insufficient, first, because it fails sufficiently to-identify the writing to be incorporated, and second, because by “instructions” the testator does not limit herself either to written-instructions or to instructions then given. The language used is broad enough to include future instructions: “wishes, which [to-'use the terms of the bequest in Olliffe v. Wells, 130 Mass. 221] I have expressed to him or may express to him.” In Hartwell v. Martin, 71 N. J. Eq. (1 Buch.) 157, the testator directed the-payment of his outlawed debts in the following language: “A list of all debts that I wish paid will be found enclosed with this will,” and Vice-Chancellor Bergen found this reference inadequate because the paper might have been changed from day to> day after the will was made, and the gifts enlarged or diminished as often as testator might have seen fit to vary them.

Concluding that the paper cannot be read as part of the will, it would be idle to attempt its construction; but this observation upon counsel’s argument is pertinent. He first seeks to make the letter part of the will by trying to show that in the absence of other evidence its contents are themselves proof that it is the “instructions” referred to’. Having thus incorporated it, he then proceeds to argue very elaborately, and not without plausibility, that it contains no instructions, properly so called, but merely recommendations or suggestions which the legatee is not bound to observe; whereupon he argues that she takes the whole residue free from any trust. If this be so, it is demonstrated by the con- . tents of the letter that it is not the instructions referred to, unless we are, without any help from the will itself, prepared to give to the word “instructions” the non-natural meaning of recommendations carrying with them no obligation.

I think it is plain that the paper cannot be road as part of the will If it cannot, then the bequest fails and the next of kin take the residue. Hartwell v. Martin, 71 N. J. Eq. (1 Buch.) 157; Condit v. Reynolds, 66 N. J. Law (37 Vr.) 242; Smith v. Smith, 54 N. J. Eq. (9 Dick.) 1; 55 N. J. Eq. (10 Dick.) 821.


source: Caselaw Access Project

author: Stjeyexbox, V. 0.

license: Public Domain

text:
    Julia K. Lake v. Amzi Lake.
    [Submitted May 21st, 1912.
    Decided October 11th, 1912.]
    In a wife’s suit against her husband for divorce on the 'ground of ■desertion, the effect of a separation suit for limited divorce instituted by her in the State of New York, and pending there during the period of separation, considered, and the rule declared in- Kyle v. Kyle, 52 N; J. Eq. (7 Eielc.) 170, followed in this suit.

      On exceptions to master’s report in ex parle divorce case adverse to petitioner.

      Mr. White (of New York), for the exceptant.
   Stjeyexbox, V. 0.

The learned master who carefully examined and passed upon this case evidently found that the wife would have made out a ■caso of willful, continued and obstinate desertion on the part of the defendant, her husband, if, during the period of separation, a suit 'for limited divorce instituted by the wife had not been' pending in the Stale of Yew York. The master therefore reports that he is “constrained to find that as the suit in Yew York has been pending for all of the statutory two 3rears except four- or five daj's, that the defendant has not been guilty of willful, continued and obstinate desertion of the said petitioner,” referring to Weigel v. Weigel, 63 N. J. Eq. (18 Dick.) 677; affirmed, 68 N. J. Eq. (20 Dick.) 398, and the cases therein cited as authority sustaining his proposition.

The effect of a prior matrimonial litigation between the husband and wife upon a subsequent divorce suit between them has ■sometimes, I think, been considered without regard to ceidain important distinctions, which, however, need not he examined for the purpose of this present case. Some of the decisions in ■other jurisdictions which involve this whole subject are of no value here because the statute construed and enforced was radically different from our Divorce act. The use of the word “obstinate” in our statute prevents several of these foreign eases from having any force in this state. It is the effect of the action ■of this petitioner in suing her husband for a legal separation in Yew York, upon her insistment in this suit that his desertion was obstinate, i. e.. against her wish and will, that this court must determine and not the effect of such Yew York suit upon the conduct and purposes of the defendant. It may be conceded that throughout the whole period whexi this Yew York action brought by the wife for a separation from bed and hoard was pending, the defendant, the husband, was maintaining a willful .and continued desertion of the petitioner, his wife. The question remains, was such desertion against the desire and purpose of the wife when she was prosecuting an action io have the separation which in fact existed through the fault of the husband made legal and for a time at least a settled matrimonial status by the decree of a court?

It has never been held or suggested, so far as I am aware, that a deserted wife bars herself from obtaining an absolute divorce on the ground of desertion after two years, because during that period she has been maintaining a suit for maintenance on the ground of abandonment and failure to support under section 26 of our Divorce act when she had a right to bring such suit.

Where the deserted wife in New Jersey having the .option to bring a suit for maintenance on the ground of constructive abandonment, elects to bring a suit based on extreme cruelty for a limited divorce, it seems plain that .the object of her suit is to procure by a decree of the court the continuance of the separa,tion of which in her divorce suit she afterwards complains.

The sharp question presented for decision in this present case is whether the petitioner’s pending suit for limited divorce in the State of New York prevents her from maintaining in this subsequent divorce suit in New Jersey, that the separation, which was the basis of her New York action, constituted obstinate desertion within the meaning of our Divorce act. The ruling of the master is, I think, necessarily sustained by the decision of this court in the case of Kyle v. Kyle (Vice-Chancellor Pitney, 1894), 52 N. J. Eq. (7 Dick.) 710.

This case, I think, is substantially on all fours with the present one. The wife sued the husband in this court for an absolute divorce on the ground of desertion. The separation occurred or began when the parties were domiciled in New York, and thereafter the wife obtained a decree in the New York court granting he.r a divorce a mensa et thoro on the ground of cruelty. It was held that the wife could not maintain in this state a suit for divorce on the ground of desertion when the period of such desertion included the time during which the New York decree for a limited divorce was operative.

I do not think that any important distinction. can be drawn for use in this present case between the effect of a decree of limited divorce obtained in New York, and tlie effect of a suit brought by the wife, one necessary object—in fact the main object of Avhieh is to procure such decree. In the erne case the wife has actually obtained a decree legalizing and establishing the status of separation, while in the other she is prosecuting the suit for the purpose of obtaining such decree. I am unable to perceive any difference in the mental attitude of the wife in the two cases so far as such mental attitude is under investigation, with a view to determining Avhether the desertion of Aldrich she complains Avas obstinate.

Conn sel for the petitioner in this case undertakes to aAroid the ' effect of the pending suit in the State of NeAV York by endeavoring to prove that under the laAv of that state an abandoned wife lias no civil action for support corresponding Avith our action under the twent.y-sixth section of the Divorce act, but that she must sue for a separation from bed and board in order to obtain support, that proceedings brought by Avives before police magistrates for support are quad-criminal in their nature, and are based upon the necessary protection of the public authorities from the burden of supporting abandoned Avives, and that such proceedings furthermore provide merely for support for a single year . and therefore must be repeated from 3rear to year.

I think that it must be conceded that this argument has great Aveight, and, apart from the authority of the Kyle Case, in some cases of the kind to Avliich the present one belongs, might'be conclusive. In NeAV Jersey the deserted wife, Avhose actual object in suing her husband is merely to obtain support, has her option after the desertion lias continued for two years, to proceed under section 26, leaiung the marriage relation unaffected, or to sue for a divorce and procure support as an incident to such suit. If, in the State of New York, the deserted wife has no such option— in fact has no suit for maintenance at any time except as a part of or' an incident to a suit for divorce, and is therefore in ease of desertion compelled to seek a judicial separation by a decree of limited divorce in order to obtain support, it is difficult to see Avhy the institution of such a suit by her should necessarily be deemed an acquiescence in the separation. In such ease the Avife merely deals with the situation which is forced upon her by the wrongful act of her husband. Where therefore her suit is meritorious, whether it resuits in a decree in the New York court or not, when she brings her subsequent suit for absolute divorce in New Jersey, may she not say: “I did not acquiesce in the separation, nor did I willingly bring a suit to have the separation sanctioned and decreed by the court. My husband, by his wrongful conduct, compelled me to bring such a suit in order to obtain from him the support which he was unlawfully withholding. At any time he might have terminated the separation, or at any rate applied to the court for such termination, which action on Ms part would have compelled me to determine whether or not I desired the suit to proceed to decree or the decree to stand in case decree had been entered.”

In the present case, however, it appears that before the wife commenced her action in New York the husband came to New Jersey, established himself upon Ms farm in .this state and became domiciled here and has remained domiciled ever since. The wife has remained a resident of New York, and it is the continued residence of the husband in New Jersey which establishes the jurisdiction of this court to grant the wife a divorce if a case of willful, continued and obstinate desertion has been established. Thus it is clear that the wife had it in her power to come over to New Jersey and sue her husband for maintenance only, but that she elected to sue him in New York by publication for a divorce from bed and board, although it may be that her principal object was to procure support from1 her husband in such .suit.

Under the circumstances of this case, I feel bound to overrule the exception upon the authority of the Kyle Case. It is true that the opinion of Vice-Chancellor Pitney in that case does not distinguish between the New York law and our law in respect •of the civil remedies which are open to an abandoned wife, upon which distinction the above-mentioned argument on behalf of 'the petitioner in this case is based. It would, however, I think, be unsafe to assume that the learned vice-chancellor was not fully informed as to the New York law in question. At any rate, under the circumstances of this case, I feel hound by this adjudication as a precedent and feel it my duty to leave it for the appellate court to overrule, or modify or distinguish a decision of this court which for all that appears has remained .unquestioned, and. no doubt has been followed in other cases continuously for the last eighteen years.

The result is that the exceptions will be overruled, the master’s report will be confirmed and the petition will be dismissed.


author: Garrison, V. C.

text:
    Louis Giusto v. Anna A. Giusto. Anna A. Giusto v. Louis Giusto.
    [Decided September 10th, 1912.]
    In a husband’s suit for. divorce, evidence held to show defendant’s adultery.

      Mr. Amadeus Tálente (Mr. Leon Ab'beti, of counsel), for Louis Giusto.

      Mr. -John J. Fallon (Mr. Maurice J. Breen, with him), for Anna A. Giusto.
   Garrison, V. C.

This is a divorce suit and a suit for maintenance tried together. ■ The divorce suit is by the husband against the wife, and accuses her of adultery with Eafaele Tirone in the months of October and November, 1909, at 92 Jefferson street and 119 Grand street, Hoboken. These parties were married in June of 1901, and lived together until the 10th of September, 1908. At that time they entered into a separation agreement by which he agreed to pay her $5 a week, and he did so down to four' weeks before the 22d of November, 1910, and at that time he conceived that he had evidence of her adultery and ceased the payments, and on that clay, November 22d, 1910, she began a maintenance suit against him. In the succeeding January he began a divorce suit agains! her, but for some reason, which has not' been explained, that was withdrawn, and’ a new one was begun on the-14th of March, 1911, and that is the one that I have tried.

It appears that he is in the express business, and1 that he and his wife owned and lived in 89 Jefferson street; that across the street from this place there was a fruit store kept by some people called Alcomando; that in this fruit store the young people of the neighborhood were accustomed to gather, and the woman who kept the fruit store, Mrs. Alcomando, was a witness in the suit, and testified that Mrs. Giusto and one Eafaele Tirone, who was a young man living in the neighborhood and who worked at the National Biscuit Company in New York, were accustomed to meet there very frequently; that they evidently awaited each other’s coming; that they had numerous conversations together, and would go into a place in the rear of the store, which was called a cellar, and which seems to have been a sort of a wood shed, and which had no window, and was totally dark, and they would stay there anywhere from twenty minutes to half an hour at a time, and that this kept up for a long time. She also sajrs that living with her, Mrs. Alcomando, was her husband’s mother, and that this husband’s mother was the aunt of Tirone, and that Tirone and Mrs. Giusto would very frequently eat at her house and go in and sit with this old lady for awhile (the old lady was bedridden) and that they would then go away together.

Mrs. Giusto, after she separated from her husband in 1908, lived for some time, T think, with her aunt on Second street, and then went to share the apartment of a Mrs. Sabadella up over this fruit store at 92 Jefferson street. Mrs. Sabadella stayed there until some time in October of 1909, and then she moved away, and Mrs. Giusto stayed there fifteen days longer, and then she hired a flat at 119 Grand street, Hoboken, on the ground floor, on the right-hand side, and she moved her belongings ■ there—there being some dispute as to whether she moved one bed or two—she says two, and the man who moved her says one; and she there furnished two bedrooms, she says. The other witnesses, who knew about it, say there was only one bedroom. The old janitor says there was no bed in the front room where she says there was a bed; and the little hoy (whose testimony, by the way, impressed me very favorably) testified that there was no bed in the front room; that he could see by looking in through the front, windows. However this may he, within two weeks after she had moved in there Tirone appeared and hired this front room, according to. her story and his story, and her two cousins’ story, and lived there for two weeks, at the end of which time they say he left a piece of paper in the keyhole saying that it was cold and lie was not going to stay any longer,' and he left the key. He had been living with his aunt and cousin at 68 Jefferson street for a period of about ten years, and went back there to live after his two weeks’ stay at Mrs. Giusto’s flat.

The whole question revolves around the doings at this last place, 119 Grand street, Hoboken. The husband contends that she committed adultery there, and she says she .did not. She brings Tirone who testifies that nothing-wrong happened; that he hired the room as she has said, and paid her $6, which was for a month, and stayed two weeks, and did not like it, and left. She brings the girls, her cousins, one of whom is about eighteen, and the other thirteen, and they, in the main, corroborate her story—although all of them are guilty, if the others tell the truth, of some untruths, because it was attempted to be made out that they scarcely knew Tirone, and that he was almost like a stranger walking in off the street and hiring a room because he saw a sign in the window; whereas, as a fact, he had known Mrs. Giusto for years and met her frequently, and he had known the elder Del Maestro girl, because the year before he had, become interested in her behalf and had taken the pains to take her over to the factory in Hew Tork and get her a job, which she still holds; and they undoubtedly must have met time and again in going to -and coming from work, and, according to her own testimony, lie was a visitor to her father and mother’s home. The little girl would have you believe that he introduced himself as an entire stranger to these women, both of whom he knew quite well.

There is a great deal on both sides of this case that is very difficult to believe—in fact, impossible, some of it.

After most careful consideration of all the facts (the case is one solely of fact), I find Anna. Giusto guilty of adultery at 119 Grand street. Briefly stated, my conclusion is based upon the following facts and inferences: Anna Giusto and her husband were living in a state of separation. She and Tirone undoubtedly sought each other’s society frequently, and exchanged notes, and so behaved, when together, as to lead to the inference that they had conceived a fondness one for the other. Mrs. Giusto’s moving to 119 Grand street is inexplicable upon any other theory than that she desired to have a place remote from her previous surroundings where she and Tirone could be together. Tirone came to .this place and lived there for at least two weeks while she was there.

The testimony shows, that she practically lived at her aunt’s, only coming to the Grand street address to sleep, and that there was no reason conceivable why she did not live at the aunt’s altogether, unless she wished to have a place where she could see Tirone. Similarly, Tirone came to this- place without any explicable reason excepting to be with Mrs. Giusto. He gives a reason for leaving the boarding place where he had been previously. and to which he returned, which is incredible and evidently a mere pretext. He brought no clothes with him to the Grand street address, and really did not make it his residence.' The testimony of Mrs. Giusto as to her inattention to the room which he rented from her, and his testimony concerning her lack of attention to it, shows that they neither of them are even approximating the truth in their evidence.

Np open mind can read the uncontradicted facts without reaching the conclusion that the proper inference to draw is that of guilt.

I will decree accordingly.


text:
    Mary Martin v. Helen C. Martin et al., executors, &c.
    [Decided September 10th, 1912.]
    1. A will which, after certain bequests and devises, gives to testator’s widow and daughter the household goods and furnishings of ihis city home and on his farm, to be mutually enjoyed by them while they live together, with provision for its division if they separate, and for all of it going to the survivor, if either dies before a separation, gives to the widow during her widowhood, and till she remarries, ’$20 a week from the income of testator’s business directed to be conducted after his death, and gives the residue of the estate in. trust, the net income thereof, after the daughter becomes of age. to be divided equally between them, with provision that on the death or remarriage of the widow, if the daughter is then of age, the trustees shall convey and deliver all the residue to the daughter, subject to the widow’s dower right and to the bequests to them, is intended to fully provide for the widow, with right of dower in the residue only in case she remarries; so that she is required to elect to take under or against it.
    2. A -widow makes no election to take under or against her husband’s will, where the executors make, and she receives, payments directed by the will, and also payments as dower in certain parcels of laud; she claiming, and they considering, she was entitled to both under the will.
    Heard oil bill, answers, replications and proofs.

      Mr. Aloysius McMahon, for the complainant.

      Mr. Frank G. Turner, for Helen C. Martin.

      Mr. John F. Marion, for Ellen Meany.
   Garrison, V. C.

Tn the present state of the pleadings in this suit the only issue to he determined is whether an injunction should or should not issue.

The complainant is the daughter of one Philip E. Martin (who died September 26th, 1903), and the defendant Helen C. Martin (widow of Philip), and Ellen Meany (sister of Philip), are'the executrices of his will.

The tüll (and a codicil) of Philip E. Martin was as follows:

“In the name of God, amen—I, Philip E. Martin, of the City of Jersey City, County of Hudson and State of New Jersey, being of’ sound and disposing mind and memory, do make publish and declare this as my last will and testament hereby revoking any and all former wills by me made.
“First. I direct that all my just debts and funeral expenses be paid as soon after my decease as convenient.
“Second. I give and bequeath unto my daughter Mary my Hunting case gold watch (which may be identified by my monogram on the outer case, and my name on the inner ease). my diamond collar button, and my small diamond stud.
“Third. I give, and bequeath to my son Ignatius my large gol hunting case watch with gold chain, my large diamond stud, and my diamond cuff buttons.
“Fourth. I give bequeath and devis unto my son Ignatius my house and lot known as 138 Maple Street, to him his heirs and assigns forever.
“Fifth. I give bequeath and devise unto my son Joseph, my house and lot known by the street number as 13S% Maple Sfreet. to him his heirs, and assigns forever.
“Sixth. I give and bequeath to my wife Helen O. Martin, and to my said daughter Mary, all my household furniture and furnishings in my house number 240 Grove Street, in Jersey City aforesaid, also on my farm near Great Falls, Green County N. Y. to he equally enjoyed by them while they live together: upon their separation it is my desire that they fairly divide the same. Upon the death of either before separation, the whole shall go to the survivor.
"Seventh. It is my wish, and I desire the plumbing business now carried on by myself and Michael P. Eaverty under the firm name of Philip E. Martin and Company, at No. 1S7 Montgomery Street, Jersey City, he continued, after my decease by my executors hereinafter named, until my son Ignatius has attained the age of twenty-one years, and then it is my desire and I direct that all the right, title and interest that T may have, shall be. transferred by my executors to my said sons Tgnatius and Joseph, if they shall have proven themselves capable of .carrying on the same, otherwise my executors shall continue to carry on the said business until my said sons Ignatius and Joseph shall have proven their capability, but if my executors shall determine that said business can no longer he carried on profitably, then I direct that they sell and dispose of all my right, title and interest in and to the said business, -at public or private sale as their judgment may direct. It is my further wish, and I direct that my executors hereinafter named, shall out of the proceeds of said plumbing business so conducted by them, pay to my wife, Helen C. Martin, the sum of Twenty dollars per week for household expenses, and it is to be understood that the transfer of said plumbing business to my sons Ignatius and Joseph is made upon the condition that they pay to my wife Helen 0. Martin the sum of twenty dollars per week during her widow-hood, and until her re-marriage, the said payment to come out of the proceeds of the business so conducted by them, and I direct that in case my partner Michael F. Laverty desiring dissolution, I hereby authorize and empower my executors hereinafter named to purchase liis said interest at their discretion.
"Eighth. All the rest and residue of my estate, both real and personal of whatsoever kind and wheresoever found, I give and devise unto my executors hereinafter named, in trust for the following purposeswhen my youngest living child Mary shall have attained the age of twenty-one, the net income from all investments which may have been made, shall be equally divided between my wife Helen 0. Martin and my daughter Mary. That none of my real estate be sold until my daughter Mary shall attain the age of twenty-one, and if at any time after my.daughter Mary attains the age of twenty-one years, my executors hereinafter named may term it for the best interest for my estate to sell the same or parcels thereof, then I authorize them to sell and dispose of the same or such parcels thereof as from time to time in their judgment they may deem advantageous to do, either at private or public sale, as, may be most beneficial for my estate, hereby authorizing them to make, execute and deliver any and all proper necessary deeds conveying the same, the purchaser, thereof to be relieved from, the proper application of the purchase moneys. Upon the death or re-marriage of my wife, if my daughter Mary shall then have attained the age of twenty-one years, I direct that my executors and trustees or theur successors shall convey and deliver all of the residuary of my estate, both real and personal, to my daughter Mary, subject however to my wife’s dower right in any real estate, and subject to the bequest to them of personal property made.
"Xinth. I hereby constitute and appoint my wife Helen C. Martin, and my sister Ellen Meany of Tarrytovn, N. Y. the executrices of this my last will and testament. It is however, my will that if upon my said daughter attaining the age of twenty-one years, my said sister removing as such executrice in favor of my said daughter, and that my wife and my said daughter be thereafter executrices thereof, whatever powers are given to the executrices hereof are vested in the survivors of them.-’

Mary, the daughter, and Helen, the mother, continue to live together. Helen has no.t remarried. Two pieces of real estate belonging to the testator at the time of his death have been sold. The executrices have paid to-the widow a sum equal to her dower right in one such piece. They wore about to pay her a sum equal to her doner right in the other when this bill was filed praying for an injunction to prohibit them from so doing. Other small sums of money have been paid tire widow and Mary as the one-half each of the income of the residuary estate. The plumbing business failed immediately after the death of Philip and nothing' came out of it to her.

The contention of the complainant is that by a proper construction of the whole will the widow is put to her election either to accept the benefits of the will and forego her dower (which she would then only get if she remarried and thereby forfeited the other provisions in her favor), or accept her dower and forego the other provisions in the will.

The contention of the widow is that she is entitled to all the will gives her plus her dower.

Although the will is very badly drawn, and it is difficult to extract from it the actual intention of the testator in all respects, I think it is reasonably clear that in the matter that is relevant in the suit he meant to provide as follows: His widow and daughter -were to have the mutual enjoyment of the household goods and furnishings in his Jersey City house and on the farm in New York state, with provisions at the separation and death of either. His widow was to have $20 per week from the plumbing business during her widowhood and until her remarriage. All the rest of the estate was to be held by the executrices in trust. The net income (after Mary became twenty-one) was to be divided between the widow and Mary. Upon the death or remarriage of the widow all the principal was to go to Mary. If the widow remarried all other provisions in the residuary clause iu her favor were to cease, but she then was to have her dower in the real estate, which latter would, upon such remarriage of the widow, go to Mary.

There is no provision as to what shall become- of the income' from the residuary estate between her death and the time Mary reached twenty-one years of age; and there are other notable omissions, but wc are not now concerned therewith.

I consider it entirely clear that the testator, by his will, intended to fully provide for the widow, and that therefore the perfectly plain and, in fact, only implication is that she must elect to take under the will or against it. Any other view is entirely repugnant to the provisions of the will and utterly destroys the attempted disposition of his estate. The widow is-given a certain amount out of the plumbing business and one-half of the income of the entire estate. It is inconceivable that the intention of the testator was also to permit her to have-dower. It is to me so clear that elaboration in .unnecessary.

It is impossible, from the way in which the parties have dealt, with the matter to determine what, if any, election the widow has made. She has been paid some money as income from the residuary estate—a very small amount, I believe—she has been paid some money probably as dower—that is, it was a sum exactly equal to what her dower, properly calculated, would have-been in the parcel sold. She takes the ground that she was not called upon to elect, but was entitled to both the provisions of the-will and the dower besides. The complainant contends that the-widow has elected to take under the will and cannot, therefore,, have dower. I think the contention of the complainant is correct to this extent—that the widow is put to her election by the law as properly applied to this will. But I disagree with so much of the complainant’s contention as insists that the widow has-made an election, or, at any rate, an irrevocable election.

I think it extremely doubtful if it would be proper to find that - the widow by her conduct couLTbe said to have made any election at all; and surely it would be improper to hold that she has-made a binding, irrevocable election.

I conclude that (he widow must elect—that she has not yet made a binding, irrevocable election—that she may now make-her election, and that the injunction as prayed for must be-granted to prevent the executrices paying the widow the dower out of the sale of the second parcel until and unless she elects to take dower. If she does so elect, then I presume there would" have to be an accounting of what she had received under the-residuary clause of the will, and a repaynient thereof by her to the estate, or a deduction thereof from the sum due her as-dower.

I incline to the opinion that before this case can be properly-disposed of there should be a cross-bill by the executrices praying-for a construction of the will and directions, and bj^ the widow praying for whatever relief she would be entitled to if her theory of the case was sustained, and proper pleadings in response to such cross-bills by the defendants in each. If this were done, the court could then make a decree disposing of the whole matter; whereas, in the present state of the pleadings, all that it is proper for the court to do is to grant an injunction restraining the payment of the dower under the existing conditions.

Let counsel coiné before me upon notice to obtain orders to •amend, &c.


text:
    Mathilda Sophia Schmidt v. Edward H. Schmidt, as executor of William H. Schmidt, deceased, et al. Edward H. Schmidt, executor, &c., v. Mathilda Sophia Schmidt et al.
    [Decided September 10th, 1912.]
    1. Where a testator gave his wife and unmarried daughters the use of his residence, together with the total income of his estate after deducting taxes, the total income in view of the deduction of taxes meant the “gross income,” which is the entire amount that the use of the principal yields, as contradistinguished from “net income,” which means what 'is left of gross income after all expenses on behalf of upkeep are ■deducted.
    2. Where a testator bequeathed unto his wife for life the total income ■of his estate after deducting taxes, special assessments for sewer improvements equaling about five years’ income are not to he deducted as taxes; the word “taxes” ordinarily meaning the annual amounts levied upon im’sons or property for governmental purposes, and not special assessments for benefits of public improvements.-

      3. Where a testator bequeathed the income of his estate to his wife and unmarried daughters during the life of the widow, a daughter single at the time of the execution of the will, but covert at the time of the death of the testator, is not entitled to share in the income; the will speaking from the testator’s death.
    4. Where a testator devised the total income of his estate unto his wife and unmarried daughters during the life of the widow, and only one daughter was unmarried at the time of the testator’s death, the income must be equally divided.
    Heard on bills, answers, replications and proofs in open court.
    These two suits were consolidated. The object of the one first above stated was to obtain an accounting from the executor at the behest of a legatee. The object of the second one was to obtain a construction of the will of the decedent and to obtain instructions- and directions in the matter of 'the settlement. The account which the executor filed in tire orphans court of Hudson county was brought over into this court, and exceptions thereto were filed by the legatee in question, Mathilda Sophia Schmidt, the complainant in the first suit, and one of the defendants in the second.
    This hearing is to dispose of all the issues raised in such- suits.
    Certain facts have to be stated so that the decision may be understood.
    William E. Schmidt, whose estate is the one concerned in these suits, died on the 4th day of March, 1908, at West Hew York, in this state. He left him surviving his widow, Sophia (about eighty years old), a son William C., a son Edward H., a daughter Ida (married to one Kraft), and a daughter Mathilda Sophia, unmarried. He left a will which has been probated and in which his son Edward H. Schmidt is named as executor.

      Messrs. Abel I. Smith & Mahon, for Mathilda Sophia Schmidt.

      Mr. Marshall Van.Winicie, for Edward H. Schmidt, executor.

      Mr. Francis V. Many, for Ida Kraft.
   Garrison, V. C.

(after making above statement).

I shall take up and dispose of the various questions under the heads that they have been dealt with by counsel.

First. The proper construction of the- will. It reads as follows:

“I, William H. Schmidt of West New York, County of Hudson and State of New Jersey, aged sixty-two years, do make, ordain, publish and ■ declare this to be my last will and testament, that is to say :
“First. After all my lawful debts are paid I give to my wife Sophia and our unmarried daughters, the use and occupation of my residence with ail furniture contained therein also horses & Carriages with the total income from my estate, stocks, bonds & Mortgages and notes after ■ deducting taxes.
“After the death of my wife the estate is to be divided into four •equal shares. 1 share each to my son Wm. C. & E. H. and my daughters Mathilda & Ida Schmidt and the said sh-are of my daughters shall be for their benefit exclusively in case of their marriage.
“I make, constitute and appoint my son Edward H. Schmidt to be ■ executor of this my last will and testament, hereby revoking all former wills by me made with full power to sell any or all my estate and invest the money on interest if in his judgment it will appear of interest to the estate, except residence which only can be signed of before • death of my wife with her consent.
“In witness whereof, I have hereunto subscribed my name and afiixed my seal the twenty-fourth day of June in the year of our Lord one thousand eight hundred and Ninety-six.
•' “Wm. H. Schmidt, (seal.)
“The foregoing written and printed instrument consisting- of two -sheets was subscribed by the said Wm. H. Schmidt in our presence and by him then and there acknowledged to each of us that he had executed the same, and he at the same time declared the said instrument so ■ subscribed by him to be his last will and testament; and we at his request, have signed, our names as witnesses hereto, in his presence • and in the presence of each other, and have so signed our names as witnesses on each sheet herein and written opposite our names our respective places of residence.
“Frederick N. Kraet, residing at Brooklyn. N. Y.
“John Hirsch, residing at Brooklyn, N. Y.
CODICIL.
“I, Wm. H. Schmidt, now aged seventy years of the Town of West New York, N. J., do this thwentieth day of December nineteen hundred : and four make and publish this codicil to my last will and testament, made the fourth day. of June eighteen hundred and ninety-six, that is to say, whereas since making my last will & testament I have converted -a considerable portion of my real & personal property to establish with my dutyfull son Edward H. Sclimidt an ice manufactoring plant of which he holds two fifths and I three fifths. I do hereby give and devise to my son Edward H. Schmidt my three-fifths parts in said-plant together with an additional half an acre of land ajoining said plant and plot of land on -which the factory is situated to the west in all other parts my said will & testament is hereby ratified and confirmed and this is done without any knowledge or influence of my' said son E. H. Schmidt.
“Signed, published and declared by the said W. H. Schmidt to be a •codicil to his last will & testament in the presence of us who were present at the same time and subscribed our names as witnesses in his presence.
“Henry F. Brandis, 4854 Hudson Boulevard, (l. s.).
“Wm. H. Schmidt, (l. s,).
“Jacques Diehl, 685 Jefferson Str. (l. s.).”

The question debated by counsel was whether this will should be so construed as to give to the widow and unmarried daughters all the income from the estate after deducting from such income -the taxes, or whether, in addition to déducting' the taxes, all other necessary expenditures should be also deducted from the income before the widow and unmarried daughters should get the same. In this case, as in all cases of the proper construction of a will, the first thing which must he determined is whether there has been by law a certain fixed meaning ascribed to certain language. If there has been, then the court’s duty is simply to so declare. If, however, the court fails to find that authority and precedent have ascribed a definite meaning which must be ascribed to the language under consideration, then it becomes the duty of the court to ascertain what the testator intended by the language he used, and to do that which will carry out such intention unless it be opposed to some positive rule of law.

"Where the law has not determined and fixed the meaning to be ascribed to the language used, opinions in other eases are of little, if any. úse, because such “will” must be read and inter■preted in the light of what appears therein and of the individual -ciretimstanoes of that particular case.

'What courts, lexicographers and others who have studied the language have said about the meaning properly and usually to be ascribed to any word or collocation of words is, of course, of benefit with respect to the identical word or collocation uhder ■consideration in any specific ease, but only, so to say, as side lights with respect to the direct illxxminatibn cast thereon by the intention disclosed by the whole will and the circumstances under which it was written.

The will in .question was written by the testal or himself. At the time, he wrote it, in 1896, he was sixty-two years of age. His family consisted of his wife and two unmarried daughters and two sons. His scheme, as described by the will, undoubtedly was to preserve, during the widow’s lifetime, the homestead 'and its accessories, furniture, horses aixd carriages and the like for the widow and the unmarried daughters, and to give them the means to live as they had been accustomed to live therein. In expressing his wish he says they are to have the homestead, &c., “with the total income from my estate, stocks, bonds and mortgages and notes after deducting taxes.”

What did he mean by the language just quoted ? One side says he meant the'net income after all expenditures were paid out of the gross income; the other side says he meant gross income. Bach side, however, says he meant that the taxes were to be taken out of the income—though they disagree as to what is included in the word “taxes.”

The word “income,” when used in respect to principal and income, is self-defining. It is that which comes in, or is derived from, the use to which the principal is put.

“Gross income” means the entire amount that the use of the principal yields. “'Net income” means what is left of gross income after all expenditures on behalf of upkeep, encumbrances, &c., are deducted.

Usually where one gives the income from an estate to one for life with remainder to another, the courts- have held that the intention was to keep the principal intact, and have therefore charged the income with the repairs, upkeep and current expenditures, and have apportioned other items which they have held should be mutually borne. Such a construction in such cases is based upon a -fording of such an intention.

• So, that, when the terms of the will show a different or contrary intention the construction just stated does not apply. If the will gives the “gross” income, then the expenditures, which, by the first-mentioned construction, would he taken out of income, are taken out of principal.

I gather from the briefs and the arguments of the respective counsel in the case at bar that they-have no dissent from what has been above stated as the law and the principles to he applied in the proper construction of the will in hand. The difference between them' is as to the proper meaning, under all the circumstances of the case and the language of tire whole will, to bo ascribed to the words “total income” as the testator used them. This language, in this connection, and in view of the situation-existing at the time and the provisions of the whole will, I think means “all the income,” and is equivalent to gross income. If it is not given this meaning, but is held to mean net income, as is contended for, then no meaning whatever is ascribed to much of the language used in the will.

At the time the will was written the testator had, as the objects of his immediate bounty, his wife and his unmarried daughters. (The sons were to take care of themselves during' the widow’s lifetime.)

Eor the widow and the unmarried daughters, he wanted them, during the widow’s life and their need of a supporter, to have the home and all its accessories, and to have all the income derivable from1 the estate. It does not seem to me reasonable that he intended to have their means of support jeopardized and perhaps wiped out by taking from the income uncertain amounts to relieve the principal. He -evidently was not so much concerned with what should eventually go to the sons and the daughters by way of principal as he was to provide a certain support for his widow and the unmarried girls who would have immediate and imperative need thereof. The fact that he provided that certain expenditures, i. taxes,. should come out of the total, whole or gross income is strongly indicative of the purpose and intention I ascribe to’ him. Whereas, there is no reasonable explanation of this provision if the other construction is applied and total income is read as net income.

Furthermore, the provision giving power to the executor to sell any or all the estate and invest the income or interest is an indication of the purpose and intention I ascribe to the testator his intention being to provide for the immediate, and as he viewed it, imperative needs of those women folks, it was desirable that the estate should, as nearly as possible, be interest bearing— should be hn the position where income would be fixed and unfluctuating, and where there would be a minimum, if not air entire lack of expenditures.

I therefore construe this wall as giving to the widow and the unmarried daughters during the lifetime of the widow all the income from the estate after deducting therefrom the taxes levied upon the properties, real and personal, of the estate.

This naturally brings us to the consideration of the assessments for benefits for sewer improvements, in the consideration of which I think some light is also to be obtained as to the testator’s intention and the proper construction of the will.

Second. Assessments for sewer improvements amounting to $27,259.13 were made against lands of the testator during his lifetime, the report of the commissioners of assessment having been filed in the clerk’s office on February 6th, 1908. (Testatof died March-4th, 1908.)

The confirmation of the court did not take place until after the testator’s death. Certiorari proceedings resulted in the setting aside of the initial assessment and a reassessment of $6,904. The executor, who is also a remainderman, contends that the whole amount of these assessments should, under the will, be charged against the income.

Reverting for a moment to the matter of the construction of the will, it wall be observed that if the testator, is held to have intended and to have meant that only net income should go to the widow and unmarried daughters, there was in this one item, as it existed at the time of his death, an amount which would require almost five years of income to pay. (The income is shown to approximate $6,000 per year and the taxes $800.) So that the result of that construction would be to deprive the widow and the unmarried daughters of all means of livelihood for a period of five years. I cannot believe he had any such unreasonable and inexplicable intention.

To return how specifically to these assessments: In the first place, I hold that they are not within the term “taxes” as used by the testator. Without attempting a definition, I think it is common use and knowledge in this country that the word “taxes” connotes the annual amounts levied upon persons or property for governmental purposes. It does not in its ordinary use relate to assessments against property made because of benefits accruing to that property by reason of public improvements, and I shall not elaborate upon what seems to me to be obvious. I also shall not consider or decide whether, under the law of this state, these assessments, in the absence of specific language otherwise controlling, should be charged against principal or income.

It is argued that since the improvement was completed, and the report of the commissioners was filed before the testator’s death, the burden or charge must be met out of the estate in any event, and the fact that the confirmation of the report and the reassessment and payment did not take place until after his death is immaterial. This point was strongly pressed and authorities are cited to sustain it. Cadmus v. Fagan (Supreme Court, 1884), 46 N. J. Law (17 Vr.) 441; on review (Court of Errors and Appeals, 1885), 47 N. J. Law (18 Vr.) 549; In re Commissioners of Elizabeth (1887), 49 N. J. Law (20 Vr.) 488; Hartshorne v. Cleveland (Supreme Court, 1890), 52 N. J. Law (23 Vr.) 473; affirmed (Court of Errors and Appeals, 1892), 54 N. J. Law (25 Vr.) 391. My reason for refraining from a decision upon the point is because in my view of .the ease it is not involved in this suit. If my construction of the will is the proper one, then this burden must not be deducted from the total income, and it is therefore immaterial whether it otherwise would fall, as between life tenant and remainderman, upon one or the other, or be apportioned.

Third. Next, as to Mrs. Kraft’s contention, that she is entitled to share with her unmarried sister and her mother, the widow, in the income.

I cannot sustain this. She was unmarried when the will was made, but was married when the will became effective at the time of her father's death. She therefore was not an “unmarried daughter,” as of the time when the will speaks.

Fourth. Mathilda Sophia, the darrghter, and Sophia, the mother, are entitled to the income equally.

Fifth. Mathilda should be charged with the one-third of the household charges and expenses as shown by the account. Reasons need not be given for this finding, as it is the result of unanimous agreement made by the parties. This, of course, does not include any items which were paid solely for the mother or for the other sister, Mrs. Kraft.

Sixth. I do not find sufficient evidence or reason to surcharge the executor for failing to rent "the hotel property.” The parties agree that it is his duty as executor to hold the estate and administer it as trustee. I do not decide that this is his duty under the will. He has undertaken it and the others have acquiesced, so that it is proper, by the reason of the circumstances, to treat him as a trustee even if it shall be held that under the will he did not become trustee after -his duties as executor were completed. Treating him as trustee, therefore, his conduct must be judged in the light of what reasonably could be done with the property in order to obtain income therefrom. 'This hotel property is, undoubtedly, a difficult one to properly handle. I shall not go into the testimony, but will summarize my conclusions thereon by saying that it does not appear that he has so acted as to render himself liable to surcharge. He may have been so interested in selling that he was not interested enough in renting; but I cannot say that his judgment was not an honest one. He should, in my opinion, either now sell at a proper figure or get the best in the way of rent that he can obtain.

Seventh. The accounts filed will have to be restated, in view of these findings; and in the instructions and directions to the master all matters not herein dealt with can be determined. Any other questions which should be disposed of by the court may be brought up on settlement of orders or decrees.

The decrees and orders to be made will be settled on notice.


text:
    Henry Kuntz v. Laurent J. Tonnele et al.
    [Decided September 13th, 1912.]
    1. "Where the purchaser’s agent in fraud of his principal’s rights enters into a secret -arrangement with the vendor, under which the agent receives a commission on the sale, the agent' is liable to his principal for the amount of such commission, though he would not have been so liable had his principal consented.
    2. "Where there was no fraud in respect thereto in which he participated, a vendor was not liable to the purchaser for a commission paid to the purchaser’s agent out of that part of the purchase money representing the lowest price at which he offered to sell the property.
    3. Where a vendor pursuant to a secret agreement with the purchaser’s agent added a certain amount to the consideration price and paid such amount to the agent, this constituted a fraud upon the purchaser for which the vendor was separately liable.
    4. Where a purchaser after paying' part of the purchase price, but before the conveyance is made, discovers that pursuant to a .fraudulent agreement between his agent and the vendor a certain amount has been added to the price, and he files a bill in equity to require a conveyance of the property to him upon his paying the balance of the agreed price less the amount of his damage and the amount already paid, the court of chancery should retain jurisdiction of the suit.
    5. A purchaser’s damages arising from an increase of a specific amount in the purchase price pursuant to a fraudulent agreement between his agent and the vendor, being certain and definite, were liquidated damages.
    6. There are certain actions for unliquidated damages for torts, of which equity, by reason of fraud, has jurisdiction.
    7. A court of equity will not decree specific performance to a vendor who has fraudulently misrepresented the purchase price.
    Final hearing on pleadings ánd proofs in open court.

      Mr. George S. Silzer and Mr. John A. Goan, for the complainant!

      Messrs. TIerrmann & Steelman, for the defendants.
   Garrison, V. C.

It "will be necessary to make a recital of the salient facts upon which the decision rests. Briefly stated, they are as follows:

Tonnele was the owner of a piece of property at Metuchen, New Jersey. (Incidentally, he had parted with the legal title to a man named Albanesius, who held the same to secure a loan of some $7,000.) At one time Kuntz had negotiated with Tonnele for the purchase and sale of this property, but failed to reach a bargain. Subsequently, Shenckman, who is a brother-in-law of Kuntz, and who occupied a suite of offices in New York City with Kuntz, took up negotiations with Tonnele. Shenckman informed Kuntz that he was associated in some banking enterprise with Tonnele, and thought he could get the property for Kuntz cheaper than Kuntz could get it if he conducted the negotiations himself. When Shenckman got together with Tonnele, Tonnele agreed to sell the property for $14,000, and Shenckman demanded a commission of $700 from Tonnele, which Tonnele agreed to pay him.

Shenckman told Kuntz that the price was $15,000, and Kuntz prepared a contract between a man named Senft, who was his dummy, and Tonnele, by which Tonnele was to sell the property to Senft for $15,000.

On the 6th of August, 1909, Tonnele, Herrmann, Tonnele’s lawyer, and Shenckman met at Shenckman’s office, which, as above stated, was also Kuntz’s office, but Kuntz was not present at the time. Before this time this contract had been submitted to Herrmann, acting for Tonnele, and he had made certain' changes therein. On the 6th of August -aforesaid, Tonnele spoke of the increase in the price as evidenced by the written contract, and expressed his gratification that he fvas to secure $1,000 more than he and Shenckman had agreed upon in their previous negotiation.. Shenckman then informed Tonnele that this extra $1,-000 was not to go to Tonnele, but to him, Shenckman. To this Tonnele demurred. Finally, he agreed, and a paper was drawn up and signed, by which Tonnele authorized Shenckman to sell the property for him at $15,000, for doing which Shenckman was to receive $1,750 as commission. (The additional $50 is not explained by anybody.) Thereupon Tonnelp signed the contract between himself and Senft for the sale to Senft at $15,000 —Senft having already signed the same.

Either contemporaneously therewith (or theretofore) Senft had assigned the contract between himself and Tonnele to Kuntz. •The $1,750, which the contract provides to be forthwith paid, was paid by Kuntz; and $1,300 was forthwith paid by Tonnele to Shenckman.

Subsequently, and within a few days after the 6th of August, 1909, Kuntz paid the additional $250 required by the contract. On the 4th of October, desiring to secure an adjournment, he paid $500 more on account of the contract, and secured an adjournment to November 11th or 12th. On this last-mentioned day he desired to secure another adjournment, and paid $500 piore on account of the contract, and secured an adjournment to November 26th, 1909. At the time of securing this last adjournment—that is, either the 11th or 12th of November, 1909—• he learned from Herrmann, who was acting for Tonnele, and who granted the adjournment, and received the $500 then paid, that his agent, Shenckman, in the negotiations had secured $1,-700 or $1,750 commission for himself. Shortly after learning this from Herrmann, Kuntz met Tonnele on a railroad train and told Tonnele what he had learned and got a fuller statement of the facts from Tonnele. Between this time and the 26th day of November, 1909, and on the 26th day of November, 1909, there were various interviews between the parties. Taking Kuntz’s own version as true; it appears that he took the position that he should get the property upon paying $13,300, and no more, and that he would pay this and take the title; and they took the position that he must pay the full $15,000. He finally, on the 26th of November, 1909, according to his own version, offered either to pajr $13,300 and take the title, or to pa3r $15,000 and take the title provided they gave him a bond conditioned to repay to him the $1,700 as commissions allowed Shenckman if he proved that Shenckman was not entitled to the same: This they declined to do, insisting that he must pay the $15,000. Their version is that at the time that he made the offer to pay the $15,000, it was not upon any condition of the sort that he now states, but that his offer was to give them checks dated ahead, they to deposit a deed with Mr. Herrmann in escrow, who was to deliver the deed to him when the cheeks were cashed.

Subsequently, and on tire 7th day of December, 1909, Kuntz filed liis bill in this suit against Tonnele, Ryer and Shenekman. He included Ryer because he alleged that Ryer had made some agreement with Shenekman to obtain from Shenekman some portion of the money which Shenekman was obtaining out of the transaction. (Ryer was eliminated from the suit.) Briefly stated, his bill, afier reciting tire contract between Senft and Tonnele and the assignment thereof to him, Kuntz, referred to the previous negotiations between himself and Tonnele which fell through; stated the intervention of Shenekman in tire matter; the authority by him to Shenekman to negotiate for him; the ascertainment by him from Herrmann of the facts concerning ■ the agreement to pay commissions to Shenekman; alleged that, in reality, the contract between Tonnele and Shenekman was that the purchase price was to be $14,000 instead of $15,000, and that of said $14,000, $700 was to be paid to Shenekman; charged that Tonnele and Shenekman had agreed that the contract price should be represented to Kuntz as $15,000, and that the $1,700 in excess of the amount that Tonnele was to receive was to be equally divided between Tonneic, Ryer and Shenekman; that the whole transaction was a scheme to defraud Ivuntz out of $1,700 and compel him to pay for .the property the sum of $15,000, whereas the true amount which Tonnele was to receive was the srurr of $13,300.

After a prayer for discoveiy he prays that

“the said parties may be decreed to have conspired together to defraud your orator out of the sum of seventeen hundred dollars, and further decreed to surrender and deliver up to your orator the said sum of seventeen hundred dollars; and that the said Tonnele * _ “ * may be decreed to convey and transfer to (yotir orator) the said property a- # * upon the payment by (Kuntz) to. them the sum of thirteen (housand throe hundred dollars, less the amount already paid.”

Subsequently, there was an amended hill Hied which, so far as I can see, does not differ from the original bill, excepting that it includes Albanesius as one against whom he prays relief, and only against him because he held the legal title.

The defendants Tonnele (I have not mentioned the wife throughout these proceedings because it was unnecessary to do so) filed an answer and a cross-hill. The answer practically consists of denials of the allegations of the bill; and the cross-hill prays that the complainant be required to specifically perform the contract and pay the balance of the $15,000 purchase price mentioned therein.

Shenekman, though a party to the bill, has not been served mor brought into the sriit in any other manner.

The proofs entirely fail to sustain the charges of the bill that Tonnele agreed with Shenekman that he, Tonnele, should have a portion of the commissions allowed to Shenekman. Kuntz testified that Tonnele told him that this was so, but the'written papers and the testimony of all the other witnesses convince me that it was not so. I think that there has been a sufficient recital of facts io demonstrate the two aspects in which the case must be treated.

In my view, two entirely distinct propositions are presented, ■one having relation to the claim of the complainant with respect to the $700 of commission which was to go to Shenekman from Tonnele out of the $14,000 consideration, and the other having to do with the $1,000 of commission allowed by Tonnele to Shenekman which was to come out of the $15,000 purchase price.

’The facts present this situation: Tonnele agreed with Shenekman to sell the property for $14,000, and agreed, out of that consideration,.to pay to Shenekman as a commission $700. Subsequently, Shenekman conceived the idea of defrauding Kuntz out of a thousand dollars. The method to be pursued in perpetrating the fraud was to induce Tonnele to join with him in representing to Kuntz that the price was $15,000 instead of $14.000, and, if successful in extracting this extra $1,000 from Kuntz, it was to go to Shenekman.

With respect to the $700, it seems to me entirely clear that Shenekman iras responsible to Kuntz for this, and that unless Kuntz had permitted Shenekman as his agent to become the agent of the other party, or to obtain a commission from the other party, Kuntz unquestionably would have the right to recover this $700 from Shenekman. But I do not see any aspect of the case, .or of the law, which would give Kuntz any. right of action, legal or equitable, against Tonnele with respect to this $700. There is not the slightest evidence to show that Tonnele1 engaged in any fraud with respect thereto. There is not the slightest evidence to show that Tonnele ever agreed or offered to sell liis property for less than $14,000; and if out of that consideration he chose to give Shenekman $700 as a commission, Kuntz does not acquire any right of action on that account against Tonnele. His sole remedy is against his agent for obtaining a secret profit or commission out of his business.

The cases which hold that the principal has such a right of action as against his agent are too numerous for citation, and the principle is too well settled to require more than mention. The theory upon which such recovery is based entirely excludes any idea that a recovery in such case is possible against anyone-other than the agent receiving the secret profit. The theory is that whatever an agent makes in his principal’s business belongs to the principal. The theory upon which Kuntz here is endeavoring to recover against Tonnele with respect to the $700, must he based upon fraud—fraud, that is, on Tonnele’s part—and there is no proof of any fraud upon Tonnele’s part with respect to this $700. Whether or not it was a fraud on Shenckman’s part entirely depends upon the contract, agreement and relationships between Kuntz and Shenekman. If TOuniz had permitted Shenekman to act as agent for both parties, as is very often the case, of had left him free to obtain a commission from the other side if he could, there would have been no fraud upon anybody’s part. If, on the contrary, Shenekman was not free to accept anything from Tonnele, the only person to take advantage, if he did so, was Kuntz, and the only person against whom Kuntz had any complaint, legally or equitably, was Shenekman.

Entirely a different situation is presented with respect to the $1,000 added to the consideration ¡Drice. Here there was clear fraud on the part of Tonnele and Shenekman against Kuntz. Tonnele, to obtain a thousand dollars out of Kuntz for Shenckman’s benefit, misrepresented the consideration price to Kuntz, having agreed with Shenekman that he would give him this $1,000 thus extracted from Shenckman’s principal. A cleaner-cut case of fraud could not well be conceived. Unquestionably, there arose out of this situation a right of action by Kuntzagainst Shenckman .and also against Tonnele. The liability is not joint. The action is not joint. The parties do not have to be sued together. The bases of recovery are different. In the action against Shenckman the basis of recovery, as above set. forth, is the right of the principal to have whatever the agent got out of the transaction. The basis of the action against Tonnele is the fraud on Tonnele’s part in misrepresenting the price and thereby occasioning damage and loss to Kuntz.

A case exactly in point, dealing fully, comprehensively and clearly with all of 'the questions, is Mayor and Aldermen of Salford v. Lever (1891), 60 L. J. Q. B. 39; 1 Q. B. 168. I shall make extensive quotations therefrom because there will thus be shown the similarity of facts and the statement and determination of the questions involved more satisfactorily than 'could be' done by paraphrase.

The plaintiff was a municipal corporation which was in the-market to purchase large quantities of coal. Hunter was its agent to purchase same. The defendant was a coal merchant to-whom Hunter gave orders to supply coal to plaintiff.

Lord Esher, master of rolls, said:

“The corporation of Salford have brought this action against the defendant, who is a coal merchant, and it is an action founded on fraud * * * (at p. 175). The defendant was at liberty to sell the coals at any price he would get for them, not necessarily at the market price, but the best price which he could obtain. He was bound, however, to act honestly. He offered this man Hunter to sell him coal at a price which would give him such a profit as he desired. But then Hunter tempted him by saying: ‘You want to sell your coals at a price which will give you a profit. I have the power of buying coals from you or from anybody else, and I will not buy them from you at.the price at which you are selling them, unless yon will help me to cheat the-corporation out of another shilling a ton. You are to have your price; but you are to add to it in the bills which you send to the corporation another shilling per ton making the real price apparently a shilling per ton more; but that shilling is to be mine —you are to give it to me/ They called this a commission, * * * and commissions sometimes cover a multitude of sins. In the present case, it was meant to cover a fraud. The fraud was this, that the defendant allowed and assisted the agent of the corporation to put down a false figure as the price of the coals in order to cheat the corporation out of a shilling a ton, which was to be paid to their own agent; and the way in which it was to be done was this, the defendant sent in a bill to the corporation for the whole price thus increased. He got the' advanced price into his hands, and as he got it by fraud he is bound to pay it back, unless something has happened to oust the right of the corporation. The damage to the corporation is clearly the one. ■shilling per ton out of which they have been cheated, neither more nor less. The form of the action, on which some stress has ■been laid in the argument, is immaterial. Unless something has happened to oust the right of the corporation, they are entitled to sue the defendant for the one shilling a ton in one form of •action or another, although he has parted with the money and lias paid it over to his confederate, Hunter, because it was once in Ms hands and he is liable for the fraud to which he .was thus ■a party * * * (at p. 176). If an agent takes a bribe from a third person, whether he calls it a commission or by any other name, for the performance of a duty which he is bound to perform for 1ns principal, he must give up to liis principal whatever he has by reason of the franc! received beyond his due. It is a ■separate and distinct fraud of the agent. He might have received the money without any fraud on the person who was dealing with him. Suppose that the person thought that the agent was entitled to a commission, he would not be fraudulent; hut the agent would be, and it is because of his separate and distinct fraud that the law says he must give up the money to 1ns principal, * * * and therefore he is entitled to recover from the agent the sum which he has received. But does this prevent the principal from suing the third person also, if he has been fraudulent, because of his fraud? It has been settled that he cannot ■set up the defence that the action cannot be maintained against him because the thing was done through the agent and the principal was entitled to sue the agent. What difference can it make that the principal sues the third party secondly instead of first? The agent has been guilty of two distinct and independent frauds —the one in his character of agent, and the other by reason of his conspiracy with the third person with whom he has been dealing. Whether the action by the principal against the third person was the first or the second must be wholly immaterial. The third person was bound to pay back the extra price which he had received, and he could not absolve himself or diminish the damages by reason of the principal having recovered from the agent the bribe which lie had received.”

Lord-Justice Lindley (at p. 179) : * * * “It is obvious that in some form of action the corporation have a right to recover this shilling a ton from the coal merchants. Under the old practice I think they could have recovered it by an action for money had and received; and probably they could have recovered it in more ways than one (at p. 180). It would be paradoxical if the rights of the corporation were to depend upon the' accident which of the two wrong-doers they sued first. * * * The corporation has a separate cause of action against each of them, and not one cause of action against both or either of them.”

Lord-Justice Lopes (at p. 181): “The rights of action by the corporation against him” (the defendant) “and Hunter are separate, distinct and independent of each other. The right against Hunter is to recover.the secret bribe which he has received, and it is founded on his fraud in regard to that bribe. The right against Lever is to recover the excess of price which he obtained through his fraud—a fraud, no doubt, in conjunction with Hunter, but an entirely separate and distinct fraud from that in respect of which the action against Hunter would be brought. It is said that these two -actions cannot co-exist. I think that contention cannot be supported * * *.”

The sole question, therefore, left for determination, is whether this jurisdiction should, in this state, be exercised in the court of chancery. There does not appear to be the slightest doubt of the existence of the jurisdiction and of its-use in the court of chancery of England. Pomeroy (3d ed.) § 912, says:

“The doctrine is fully settled by an unbroken, line of decisions extending to the present day, that, with one remarkable exception, the juris■dietion 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 whether 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 English .judges have virtually said that in every case of fraud the remedy at law, either from’ the nature of the legal relief itself or from the methods of legal procedure, is inadequate. The only question, therefore, presented to an English court is, not whether the equitable jurisdiction exists, but whether it should be exercised. * * * The full .jurisdiction of equity having thus been established from the earliest time, it should not, in, accordance with familiar principles, be at all affected by a subsequent growth -of a similar common law jurisdiction. To say that the full jurisdiction of equity has been any way abridged, impaired or altered, because the law courts. have gradually assumed •and finally acquired a like jurisdiction, even though competent in many cases to administer adequate relief, is to violate one of the most fundamental principles regulating the general equitable jurisdiction'. The •sum of the English doctrine, therefore, is, that, although the jurisdiction always exists, whether it will be exercised depends upon the circumstances of individual cases.”

Mr. Justice Dixon, speaking for onr court of errors and appeals in the case of Eggers v. Anderson (1901), 63 N. J. Eq. (18 Dick.) 264, said: “Undoubtedly, the American courts have not generally -upheld so broad a jurisdiction. * * * 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 he regarded •as withholding or withdrawing from our court of chancery any jurisdiction possessed by its English prototypes.”

This doctrine, thus enunciated, has received frequent and •emphatic reiteration in subsequent cases.

The single question left for determination, therefore, is whether the undoubted jurisdiction of this court should be ■exercised in this case, or whether, in the discretion of the chan■cellor, the complainant should be left to his remedy at law ? In •certain eases which affirm the broad jurisdiction of equity in all eases of fraud, the discretion has been exercised against retaining the case in equity, and the parties have been relegated to their isuats .at law. Krueger v. Armitage (Vice-Chancellor Emery, 1899), 58 N. J. Eq. (13 Dick.) 357; Polhemus v. Holland Trust Co. (Vice-Chancellor Reed, 1899), 59 N. J. Eq. (14 Dick.) 93.

In others the court of equity has administered the appropriate relief. Dawson v. Leschziner (Chancellor Magie, 1906), 72 N. J. Eq. (2 Buch.) 1; Mazolla v. Wilkie (Vice-Chancellor Garrison, 1907), 72 N. J. Eq. (2 Buch.) 722; Safford v. Barber (Vice-Chancellor Walker, 1908), 74 N. J. Eq. (4 Buch.) 352; Schoenfeld v. Winter (Vice-Chancellor Howell, 1909), 76 N. J. Eq. (6 Buch.) 511; on demurrer, Strauss v. Norris (Vice-Chancellor Slovens, 1910), 77 N. J. Eq. (7 Buch.) 33; same case on final hearing (Vice-Chancellor Howell, 1911), 78 N. J. Eq. (8 Buch.) 488.

In Krueger v. Armitage, supra, the court of chancery declined to exercise jurisdiction in an action grounded upon fraud because the remedy at law was entirely adequate and the court saw no reason why the case should not go there.

In Smith v. Krueger (Vice-Chancellor Emery, 1906), 71 N. J. Eq. (1 Buch.) 531, the court, after referring to Eggers v. Anderson (which had been decided after Krueger v. Armitage and before Smith v. Krueger), exercised its discretion to retain jurisdiction because there were equitable features requiring treatment in a court of chancery. In the latter case the court said (at. p. 533), spealdng with respect to Krueger v. Armitage: “The claim for damages, in addition, was based upon the same alleged fraud. This issue of fraud * * * in the sale being properly here, the court, in exercising its concurrent jurisdiction, should dispose of the issue of fraud and of damages -resulting from it in a single action and for all purposes.”

Excellent illustrations in addition to Eggers v. Anderson of cases retained in equity, although the sole relief prayed for was an award of pecuniary damages, are Winans v. Winans (Chancellor Zabriskie, 1868), 19 N. J. Eq. (4 C. E. Gr.) 220, and Ryon v. Loveless (Vice-Chancellor Reed, 1902), 51 A. R. 1094; affirmed (Court of Errors and Appeals, 1903), 65 N. J. Eq. (20 Dick.) 405. In this latter case, Ryon, a real estate agent, had agreed with Loveless, the owner of property, to purchase the same for $16,000. Ryon agreed to sell the same property to Eishblatt for $19,'5Ó0. The deeds were to be exchanged on the same day, at the same place. Eishblatt did not attend.' Eyon did not have the money to buy from Loveless, and nothing was done. Subsequently, Eishblatt and Loveless met by accident, and Eishblatt learned that Loveless had not sold to Eyon, whereupon Eishblatt bought the property from Loveless for $1,000 more than Eyon had agreed to pay Loveless, and $2,500 less than Eishblatt had agreed to pay Eyon. Thereupon Eyon sued Loveless and Eishblatt, and obtained no relief whatever against Loveless, who was permitted to keep her $1,000 profit that she had made; but did obtain a decree for the $2,500 profit which she lost by reason of Eishblatt’s having bought the property directly from Loveless and not from Eyon.

It has been suggested that the expression is quite often found in cases in this state that unliquidated damages for a tort cannot be recovered in equity. The first answer is that the damages dealt with in the ease at bar cannot in any proper use of the word be denominated “unliquidated”—that is, the damages as against Tonnele. “Unliquidated damages,” properly so called, are those which are not ascertained, that is, in which some element of uncertainty as to the amount exists which must be settled before a proper determination has been reached. In this case there is no element of uncertainty as to the amount of damages whatever. 'The' $1,000 which Tonnele misrepresented with respect to the consideration price is the certain, definite and liquidated sum of damage which his fraud caused to Kuntz. But, in passing, I think it proper to say that the statement above referred to that unliquidated .damages for a tort cannot be recovered in equity is too broad, and probably was not, by any of the judges who used it, meant to apply to cases where equity, by reason of fraud, has unquestioned jurisdiction.

In considering the question whether this suit should be retained in this court, or the complainant remitted to an action at law, certain cogent facts should be borne in mind. It should first be remembered that the title to this property is under the control of the defendant Tonnele; that Kuntz, by a written agreement, has bought the property from him; that he is entitled to the benefit of the bargain free from the fraud which tainted it; that he had a right, upon discovering the fraud, either to rescind and restore the parties to their original position, or to affirm the contract and sue for the damages accruing to him by reason of the fraud—Conlin v. Roemer, 52 N. J. Law (23 Vr.) 53 (at p. 58); that he elected to do the latter; and that a necessary part of his relief is a decree requiring Tonnele to convey the property to him. There can be no possible question that if this case be viewed as one in which the complainant was entitled to come into equity to obtain specific performance, this court, as incidental to the relief, could and should award the damages accruing to the complainant.

To prevent circuity of action, this court, in my view, should maintain jurisdiction in this suit to administer relief with respect to this $1,000 fraudulently extracted from the complainant by the fraud of the defendant Tonnele. Unless this court does retain jurisdiction the result would be that Tonnele would receive from Kuntz $15,000. Kuntz would be entitled, at law, to recover from Tonnele the damages arising out of Tonnele’s fraud, which would be $1,000. To prevent this circuity, this court, in this suit, without violating any principle that I know of, and in consonance with the authorities and precedents, may decree that Tonnele should convey the property upon receiving that to which he is entitled, namely, $14,000, and that the $1,000 of the $15,000 consideration money which was fraudulently inserted in the contract should not be paid over and returned, but should be retained by Kuntz. In this way complete justice is done the parties and circuity of action is avoided— thus, in my view, showing that this is peculiarly a case in which the discretion to retain the suit in equity should be exercised.

The suggestion that the case is in anywise altered by reason of the fact that Tonnele has paid $1,300 to Shenckman was fully met and disposed of by the quotations heretofore made from the case of Mayor and Aldermen of the Borough of Salford v. Lever, supra.

The decree will therefore be that, upon the payment by Kuntz to Tonnele of enough money to make $14,000 in all, in the manner provided by the contract, Tonnele shall convey the premises in question to Kuntz. .

With respect to the cross-bill filed by Tonnele against Kuntz, calling upon Ejuntz to specifically perform the contract by paying $15,000, this should be dismissed, with costs, not only because the court has found, for the reasons above stated, that Tonnele is not entitled to this relief, but because, in any event, a court of equity would not give the relief of specific performance to a vendor whom it found had fraudulently misrepresented the purchase price.

The decree will be settled upon notice.