text:
    John F. Shannon and another, appellants, v. Daniel C. Watt, respondent.
    [Submitted March term, 1917.
    Decided June 18th, 1917.]
    The amendment of 1876 to the Married Woman’s Property act (Comp. Stat. p. 3230 pi. 8a) supersedes the proviso in section 9 of the act of 1874 (Comp. Stat. p. 8235 pi. 9) as well as the provisions of section 14 (Comp. Stat. p. 3237) in the cases to which it is applicable; in such cases a married woman may devise lands free of any curtesy of her husband.
    On appeal from a decree advised by Vice-Chancellor Griffin, whose opinion is reported in 87 N. J. Eq. 142.

    The bill seeks to enjoin actions of ejectment. Mary J. Watt, wife of the defendant, died seized. She and the defendant were married in 1889 and had a child. In 1908, on the wife's complaint, she obtained a judgment in the supreme court of New York, whoso jurisdiction is not questioned, separating her from the bed and board of the defendant forever; thereafter and until her death, she and her husband lived in a state of separation under that judgment. Mrs. Watt, by a will made October 30th, 1914, devised the real estate in question to the appellants. Probate of the will was resisted, although apparently not by the husband; the will was sustained both in the orphans court and the prerogative court; there is nothing to show that there was an appeal to this court. The husband brought the ejectment suits, retying on an alleged estate by the curtesy; the appellants answered setting up that the devise to them was free of the curtesy by virtue of the amendment of 1876 to the Married Woman’s Property act. P. L. 1876 p. 18j Rev. 1877 p. 689 pi. 18.; Comp. Slat. p. 3230 pi. 8a. It is not claimed that the property in suit came to Mrs. Watt by gift through or from her husband. While the actions at law were pending, the defendants therein, now the appellants, apparently thinking that, even if their view of the statute was upheld, it would be open to the plaintiff in the ejectment suit to question whether the will was valid or not, filed this bill. The equity on which they rely is an oral promise made in open court in the New York action, recited in the findings of fact and made part of the judgment, by which the defendant agreed to release his interest as tenant by the curtesy in all his wife’s real property as well that she then had as that she. might subsequently acquire, and to execute all instruments and conveyances necessary to carry into effect such releases whenever he might be requested by his wife so to do. Substantially, the bill is a bill for specific performance of the contract and for the enforcement of the judgment. 'Upon motion the chancellor dismissed the bill for want of equity. The appeal is from this decree.

      Mr. Marshall IF. Van Winkle, for the appellants.

      Mr. Walter L. McDermott and Messrs. Runyon & Auienreith, for the defendant.
   The opinion of the court was delivered by

Swayze, J.

The first question to be decided is what is the effect of the devise in Mary F. Watt’s will. This depends on the effect of the act of 1876, now printed in the compiled statutes, page 3230, placilum 8a. The case is clearly within the language of the-act. Mrs. Watt was a married woman, living in a state of separation from her husband, under and by virtue of the judgment of the supreme court of New York founded upon her application for tlie separation. Tlie devise of the lands to the appellants was made during the continuance of the separation, and the lands did not come to her by gift through or from her husband. In such a state of facts the statute says in so many words that she may devise “in the same manner and with the like effect as if she were sole and unmarried.” Obviously, if this statute is effective, the devise must be free of any curtesy of the husband; otherwise it would not have the like effect as if the testatrix were sole and unmarried. The husband’s contention,- however, is that section 9 of the Married Woman’s Property act, as revised in 1874 (Revision of 1877 p. 688), enacts that

“Nothing herein contained shall be so construed as to authorize any married woman to dispose by will or testament, of any interest or estate in real property to which her husband would be, at her death, entitled by law; but such interest or estate shall remain and vest in the husband in the same manner as if such will had not been made.”

This statute was approved- March 27th, 1874. By section 6 it authorizes a married woman living in a state of separation from her husband under or by virtue of the' final judgment or decree of a court, during" the continuance of the separation, to sell, release, transfer- and convey any interest, estate or right in real property in the same manner and with the like effect as if she were sole and unmarried, but expressly provides that such sale; conveyance or release shall not affect any estate or right her husband might then have in such property. -There was no inconsistency between section 6 and section 9 of the act of 1874. The proviso of section 9 was applicable only in ease of a devise by a married woman, and no devise was authorized by section' 6, which, moreover, was as carefully drawn as section 9 to save the rights of the husband.

In 1875, the legislature saw fit to introduce a change. P. L. 1875 p. 52. The act is in two sections, the first authorizing a married woman under the specified circumstances to convey’, mortgage, lease or devise as if sole and unmarried; the second authorizing a married man under the same circumstances to convey, -mortgage, lease or devise. There was a clerical error in the first section caused by the omission of the word “except.” This error was corrected by the act of 1876 above recited. The important change was the insertion of the word "devise.” This word can only have effect if the act of 1876 supersedes the proviso in section 9 of the act of 1874, in the cases to which it is applicable. The proviso still is law as to all other cases and constitutes the usual rule; it is not since 1876 applicable to the cases, fortunately few in number, which fulfill .the special conditions of that act. The same reason makes section 14 of the act of 1874 inapplicable to cases arising under the act of 1876. This case, as we have said, is within the special conditions of the act of 1876, and Mrs. Watt might therefore devise with the like effect as if she were sole and unmarried, i. e., free of any curtesy of her husband.

It follows from this that the defendants in ejectment, now appellants, have a complete defence at law, if Mrs. Watt's will is valid, as it has been held to be by the orphans court and the prerogative court. If that will should be questioned in the ejectment suits, and the jury should find adversely to its validity, a different question would be presented.- But Mr. Watts counsel in their brief in this court state their contention as being that the will was not inconsistent, with his right of curtesy;- that they rely on the proviso in section 9; and that the actions of ejectment depend for determination upon the construction of the statute. If they adhere to this position, the defence at law will be adequate. But if they had taken a different position, the present bill would be without equity. It avers that the will is valid and sustained by the decrees of both courts. If that is so, it is idle to enforce a contract for the release of curtesy, since there is no curtesy to release. The bill in that view is prematurely filed. It would be well for the chancellor to modify the decree below so as to - leave no doubt that the complainant’s rights may be presented by a new bill if and when the proper time comes. We express no opinion as to the points dealt with by the vice-chancellor. In the view we take, no harm can be done the complainants by affirming the present decree. The defendant is entitled to costs in both courts, as he has been brought in the present proceeding unnecessarily.

For affirmance—Garrison, Swayze, Teenci-iard, Parker, Bergen, Minturn, Kalisch, Black, Wi-iite, Heppeni-ieimer, Williams, Taylor, Gardner—13.'

For reversal—None.


source: Caselaw Access Project

author: Swayze, J.

license: Public Domain

text:
    Charles M. McDermott, receiver, v. William Woodhouse, Jr., appellant.
    [Submitted March term, 1917.
    Decided June 18th, 1917.]
    1. The receiver of an insolvent corporation can enforce a stockholder’s liability for unpaid stock issued as full paid only in the’ right o’f creditors. . ■ •
    2. The obligation of holders of unpaid stock in a corporation issued, as full paid is to pay so much of what is unpaid on the stock as will satisfy the claims of corporate creditors and meet the expenses of winding up its affairs. Cumberland Lumber Co. v. Clinton Jlill Lumber Mfg. Co., 57 N. J. Eq. 687, followed. ' ......
    3. The amount of a stockholder’s liability on unpaid stock must .be ascertained in the forum of the corporation’s domicile, in a proceeding to which the corporation itself is an indispensable party.' Wetherbee'v-. Baker, 35 N. J. Eq. 501, followed.
    4. A stockholder is so far an integral part of the corporation that'in view of the law, he is privy to the proceedings touching .the: body of which he is a member. Where an assessment for unpaid stock. is made in a proceeding at the domicile of the corporation to which the corporation is a party, the stockholder cannot question • the propriety or amount of the assessment, although he may contend in ■a subsequent action against him personally to collect the assessment' that he is not liable at all.
    5. The propriety and amount of an assessment upon stockholders to pay creditors are internal affairs of the corporation' with which the courts of another jurisdiction will not intermeddle.
    6. A stockholder is not bound to pay an assessment on his stock until the assessment is made and he can know how much he has to pay. When his liability has been ascertained it must be enforced in a court of law unless some element of equity jurisdiction appears. Barlcaloio v. Totten, 53 N. J. Eq. 578; Hood v. MoNaughton, 5fy N. J. Laio 1/85, followed.

      On appeal from á decree advised by Vice-Chancellor Backes, whose opinion is reported in 87 JJ. J.. 'Eq. j£Ji-.

      Mr. James J. McGoogan, for the complainant-respondent.-

      Mr. John A. Ilaripence, for the defendant-appellant.
   The opinion of the court was delivered by

Swayze, J.

The appellant moved to dismiss the bill for want of equity. His motion w'as denied and he appeals.

The bill is a most extraordinary one. It is a bill filed by a receiver in insolvency of a New York corporation, who wras appointed by our court of chancery, and seeks to establish a stockholder’s liability for stock issued for property purchased, as is said, at a gross overvaluation. We pass over the informal statements contained in the bill, and put upon it the best face possible. The corporation itself is not. made a party. There is nothing to show that a receiver has ever been appointed in New York, the domicile of the corporation. Nothing is averred in the bill which would justify' our courts in appointing a receiver in insolvency of a New York corporation. The draftsman seems to have conceived the notion that under our statute a receiver in insolvency can be appointed for a foreign corporation by the same procedure that is authorized in the case of a New Jersey corporation. We mention these difficulties because they are of so fundamental a character that we ought not to pass them unnoticed and thereby appear to justify what seems by the averments of the bill to have been an unwarranted interference' by our courts in the internal affairs of a foreign corporation. Probably the proceedings for a receiver were ex parbeA and the attention of' the court was never called to the fact that the corporation ■was not a Newr Jersey corporation. The matter is important. The bill seeks to do what can only be done by a receiver in case he possesses all the powers ota statutory receiver in insolvency, and .shows on its face that the utmost powers he could have would be those of a mere ancillary receiver to gather in the assets in this state.

To enforce a stockholder’s liability for unpaid stock issued as' full paid, the receiver can act only in the right of creditors. By the contract between the corporation and the stockholders, the latter have no further obligation with respect thereto, but where stock has been issued for property at an overvaluation, the stockholders may, in a proper case, be held for the deficiency. But their obligation is no greater than the obligation of stockholders whose subscriptions were payable in cash—that is, to pay so much of what is unpaid on the stock as will satisfy the claims of corporate creditors and meet the expenses of winding up its affairs. Cumberland Lumber Co. v. Clinton Hill Lumber Mfg. Co., 57 N. J. Eq. 627-629. In that case we reversed a decree which ordered payment of the whole amount remaining unpaid, and held that only so much should be paid as was necessary to satisfy creditors.

Since this is the limit of the stockholder’s obligation, it follows that the amount must be ascertained by a tribunal which has the power to ascertain the total amount of the debts and the total amount of the assets of the corporation. This cannot be done in a forum where only an ancillary receivership is possible. It must, be done in the forum of the domicile. The bill in the present case, indeed, sets up an attempt to compel creditors to bring in their claims and the entry of an order barring-creditors in the insolvency suit. As far as we know, the only authority for such a proceeding is section 75 of the Corporation act (Comp. Stat. p. 1648); but this can only apply to a New Jersey corporation; our courts cannot force a New York credi-. tor of a New York corporation to submit his claim to our tribunals under penalty of losing all right to participate in the distribution of the assets. It is manifestly quite as necessary to ascertain the total assets of the corporation afe its total liabilities in order to fix the amount needed to pay creditors, and these assets can only be finally ascertained jn the courts of the domicile to which assets may be remitted by courts of other forums acting through ancillary receivers, as in Irwin v. Granite State Provident Association, 56 N. J. Eq. 244.

From the necessity of ascertaining the amount of assets and liabilities it follows that the corporation itself is a necessary party to the suit. We said, in Wetherbee v. Baker, 35 N. J. Eq. 501 (at p. 508), that the corporation is indispensable as a party to a suit in which the amount of its property and the amount of its debts are involved. Whether it would have been possible to serve process on the corporation, in this case, we do not know; generally a foreign corporation could not be served since few such corporations in comparison with the total number do busi■ness in this state or subject themselves to its jurisdiction. In the present case, the complainant has not even made the corporation a party to the bill. This defect of itself is fatal.

Again, in order to fix a stockholder’s liability, he must be bound by the proceedings to determine the amount thereof. He cannot be bound without some sort of notice, and it .can rarely happen in the case of a large corporation that all the stockholders are subject to a single jurisdiction, and it is probable that even in the case of a small corporation, some of the stockholders reside in different jurisdictions. That seems to be the present case where the stockholders are only seven in number. For a time this difficulty of subjecting stockholders to the jurisdiction of a single tribunal seemed. insuperable. It was finally settled in Hawkins v. Glenn, 131 U. S. 319, applying the rule of Sanger v. Upton, 91 U. S. 56, that a stockholder is so far an integral part of the corporation that, in the view of the law, he is privy to the proceedings, touching the bod}'' of which he is a member. We have adopted this rule, Cumberland Lumber Co. v. Clinton Hill Lumber Mfg. Co., 57 N. J. Eq. 627, after expressing some doubt as to its soundness in Meley v. Whitaker, Receiver, 61 N. J. Law 602, 604. See, also, Gilson v. Appleby, 79 N. J. Eq. 590. Where the assessment is made in a proceeding at the domicile of the corporation to which the corporation is a party, the stockholder cannot question the propriety or amount of -the assessment; although he may contend in a subsequent action againstjiim personally to collect the assessment that he is not liable at all. Coe v. Armour Fertilizer Works, 237 U. S. 413, 423.

The propriety and amount of the assessment must be determined according to the statutes and jurisprudence of the domicile (Glenn v. Liggett, 135 U. S. 533, 548), and when so determined are binding everywhere. Hancock National Bank v. Farnum, 176 U. S. 640. That the practice has been to bring the action in the courts of the domicile is .sufficiently shown by Easton National Bank v. American Brick and Tile Co., 70 N. J. Eq. 722, and the cases therein cited.

These considerations make it clear that the propriety and amount of an assessment to pay creditors are internal affairs of the corporation with which the courts of another jurisdiction will not intermeddle. Illustrations are to be found in analogous cases of assessments upon members of mutual insurance companies. Condon v. Mutual Reserve Fund Life Association, 89 Md. 99; 42 Atl. Rep. 944; Stockley v. Thomas, 89 Md. 663; 42 Atl. Rep. 766; Swing v. Consolidated Fruit Jar Co., 74 N. J. Law 145.

So far, then, as the bill is to be looked on as a bill to compel an assessment upon stockholders to pay debts, it fails to make out a case. It is equally futile as a bill to compel a single stockholder to pay his individual liability. It is settled, on the clearest basis of reason, that the stockholder is not bound to pay until the assessment is made and he can know how much he has to pay. Scovill v. Thayer, 105 U. S. 143. The court, in Scovill v. Thayer, was dealing with the defence of the statute of limitations. After saying that by the contract between the stockholder and the company, the stock was fully paid, and that no suit could have been maintained by the company to collect on the unpaid stock, and that it was only the right of creditors that made the action maintainable, the court added: “In this case there was no obligation resting on the stockholder to pay at all until some authorized demand in behalf of creditors was.made fox payments. The defendant owed the creditors nothing, and he owed the company nothing, save such unpaid portion of his stock as might be necessary to satisfy the claims of the creditors. Hpon the bankruptcy of the company his obligation was to pay to the assignees, upon demand, such an amount upon his unpaid stock as would be sufficient with the other assets of the company to pay its debt. He was under no obligation to pay any more, and he was under no obligation to pay anything until the amount necessary for him to pay was at least approximately ascertained. Hntil then his obligation to pay did not become complete.

Following that ruling, the logic and justice of which we do not question, no suit can be maintained against the demurring defendant until the amount of his liability has been ascertained by proceedings in New York. When that liability has been ascertained, it must be enforced in a court of law (Barkalow v. Totten, 53 N. J. Eq. 573; Hood v. McNaughton, 54 N. J. Law 425), unless some element of equity jurisdiction appears, not present in this case as far as the bill shows.

The decree must be reversed and the record remitted to the court of chancery in order that the bill may be dismissed. The defendant is entitled to costs in both courts.

For affirmance—None.

For reversal—Garrison, Swayze, Trenciiard, Parker, Bergen, Minturn, Kaliscii, Black, White, Heppeniieimer, Williams, Taylor, Gardner—13. ■


author: Trenchard, J.

text:
    Clara L. Sands, a lunatic, by Elizabeth R. Sands, guardian, complainant and respondent, v. Frank Ruddick et al., defendants and appellants.
    [Submitted March 26th, 1917.
    Decided June 18th, 1917.)
    1. Where it appears that the mind of the owner of real estate was so impaired as to make her incapable of understanding the nature and effect of her acts or the affairs in which she was participating, the purchaser of her real estate at. a sheriff’s sale (made-while she was trying and substantially ready to pay the execution), who knew of her mental condition, and who purchased at a price so inadequate as to shock the conscience, will be directed, on payment to him of the money expended for the property with lawful interest, to reconvey the real estate.
    • 2. Where the guardian of a lunatic, before filing her bill, tenders to the purchaser of the lunatic’s real estate, bought at a sheriif’s sale, the amount of his purchase-money and interest, which tender was declined, it is allowable for the court of chancery to require the purchaser to pay the complainant’s costs in that court, upon the court’s finding that equity requires a decree that the purchaser shall reconvey the property to the complainant upon payment of the purchase price and lawful interest.
    3. The court of chancery has no power in a strict sense of the term to set aside a judgment at law. In granting relief it does not interfere with records of the law court or strike therefrom the judgment. It treats the proceedings at law as valid and grants relief against the consequences thereof because the rights acquired thereunder cannot be retained in good conscience by reason of some new matter on which the court of law did not or could not pronounce a judgment, or which for some just cause the party could not bring to the consideration of the court of law. The suit in equity to obtain relief is strictly a proceeding in personam, and the decree adjudges the rights of the parties inter sese in relation to the judgment, and the relief is limited to enjoining parties from proceeding to enforce the .judgment.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis, whose opinion is reported in 99 All. Rep. 101.

      Mr. William J. Morrison, Jr., for the appellants.

      Messrs. Hwiziker <£• Randall, for the respondent.
   The opinion of the court was delivered by

Trenchard, J.

The primary object of the complainant’s bill was to compel a reconveyance of real estate.

The facts were these:

One Phillip's recovered a judgment for $428 and costs against Clara L. Sands in the Bergen county common pleas court. Mrs. Sands owed the money, and the judgment was properly recovered. -Execution was issued thereon and her real estate was sold to the defendant below, Frank Ruddiek, for $500 apparently because on the day of sale she reached the sheriffs office with' the money to satisfy the execution a few minutes too late. • The real estate thus sold was worth $10,000 and was subject to a mortgage of $3,500. Mrs. Sands then instituted proceedings in the Bergen pleas and in the supreme court to obtain relief from such sale. Of course, in these proceedings no question was raised as to her sanity, and she was denied relief. The purchaser, Ruddick, then brought an ejectment suit against Mrs. Sands, took judgment by default, and a writ of possession issued. Shortly thereafter, on the petition of her daughter, proceedings were taken in the court of chancery to inquire into the lunacy of Mrs. Sands. The result of such inquisition was an adjudication that she was then, and for eleven years then last past had been, a lunatic, without lucid intervals, and not capable of the government of herself and her estate. The daughter was then appointed her guardian. She first tendered to Ruddiek a sum sufficient to reimburse him for his outlay of purchase-money and expenses, and requested a reconveyance of the real estate. Such request being refused, she filed this bill to compel a reconveyance of the property.

At the hearing the foregoing facts appeared. Apart from the presumptive effect of the inquisition finding of lunacy overreaching the judgment and sale, it otherwise appeared to the satisfaction of the vice-chancellor, and to our satisfaction, that, at the time, of the judgment and sale, Mrs. Sands’ mind’was so impaired as to make her incapable of understanding the nature and effect of her acts, or the affair^ in which she was participating. It also appeared that Ruddiek, who was her next-door neighbor, knew of her mental condition.

The court below decreed that the Phillips judgment, the execution issued thereon, the deed from the sheriff to Ruddiek, and Ruddick’s judgment in ejectment and writ of possession, were null and void; that Ruddiek should reconvey the lands to Mrs. Sands upon payment to him of the purchase price with interest, and also decreed that he should pay to the complainant her costs in the court of chancery.

We are of the opinion that in the main the vice-chancellor was right.

Oil familiar principles, where, as here, it appears that the mind of the owner of real estate was so impaired as to make her incapable of understanding the nature and effect of her acts or the affairs in which she was participating, the purchaser of her real estate at a sheriff’s sale (made while she was trying .and substantially ready to pay., the execution), who knew of her mental condition, and who purchased at a price so inadequate as to shock the conscience, will be directed, on payment to him of the money expended for the property with lawful interest, to reeonvey the land. We, therefore, conclude that the decree is quite right, in so far as it declared the deed null and void, and directs, upon terms, a reconveyance to the complainant.

We also think the decree right as to costs.

Where, as here, the guardian of a lunatic,, before filing her bill, tenders to the purchaser of the lunatic’s real estate, bought at a sheriff’s sale, the amount of his purchase-money and interest, which tender was declined, it is allowable for the court of chancery to require the purchaser to pay the complainant’s costs in that court, upon the court’s finding that equity requires a decree that the purchaser' shall reconvey the property to the complainant upon payment of the purchase price and lawful interest.

But we think the decree below wont too far in adjudging the Phillips judgment and execution, and the Ruddick judgment in ejectment and writ of possession to be null and void.

The court of chancery has no power in the strict sense of the term to set aside a judgment at law. In granting relief it does not interfere with the records of the law court or strike therefrom the judgment. ' It treats the proceedings at law as valid and grants relief against tire consequences thereof because the rights acquired thereunder cannot be retained in good conscience by reason of some new matter on which the court of law did not, or could not, pronounce a judgment, or which for some just cause the party could not bring to the consideration of the court of law. The suit in equity to obtain relief is strictly a proceeding in personam, and the decree adjudges the rights of the parties inter sese in relation to the judgment, and the relief is limited to enjoining parties from proceeding to enforce the. judgment. Clark v. Board of Education of Bayonne, 76 N. J. Eq. 326.

The application, of these principles to the case at bar necessitates the elimination from the decree of such parts thereof as adjudged null'and void the Phillips judgment and execution, and the Ruddick judgment in ejectment and writ of possession.

The decree should, however, .enjoin the defendant Ruddick from proceeding to enforce his judgment’in ejectment and writ of possession.

With respect to the Phillips judgment and execution it is sufficient to say that it appears that Phillips has properly received the moneys due thereon and, if such judgment is not already satisfied of record, it may be canceled upon proper proceedings for that purpose. There is, therefore, no reason for enjoining further proceedings thereon.

The decree will be reversed to the extent indicated, and the record remitted to the court of chancery for the entry of a decree in accordance with this opinion.

No costs will be allowed in this court.

For affirmance—None.

For 'reversal—Garrison, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kaliscii,’ Black, White, Hei>pbnheimer, Williams, Taylor, Gardner—13.


author: Trencharjd, J.

text:
    Stanley J. Taub, petitioner and appellant, v. Margaret Pangburn Taub, defendant and respondent.
    [Argued November 28th, 1916.
    Decided June 18th, 1917.]
    Paragraph 6 of section 1 of the Divorce act of 1907 (P. L. 1907 p. J/7^j Oomp. Stat: p. %0%%) was not repealed or abrogated by the Marriage act of 1912 (P. L. 191% p. 806), and that paragraph of the Divorce act authorizes the annulment of a marriage at the suit of the husband when he was under the age of eighteen at the time of the marriage, and when the marriage had not been confirmed by him after arriving at such age, even though his parents consented to the marriage in the form prescribed by the Marriage act, and even though it be inferred from the evidence that, at the time of the marriage, he intended to disaffirm it upon reaching the age of eighteen.
    On appeal from a 'decree'of the court of chancery advised by Advisory Master Fort.
    ' Messrs. Michael T. & TIugh C. Barrett, Roy F. Anthony, for the appellant.

      Messrs. Qonclicl, Oondict & Boardman, for the respondent.
   The opinion of the court was delivered by

Trencharjd, J.

This' is the husband’s appeal from a decree dismissing his petition for the annulment of his marriage.

The appellant and respondent were married in this state on April 22d, 1915, by a minister of the gospel. At the time of the marriage, the appellant was under the age of eighteen years.' He reached that age June 22d, 1915. The respondent was twenty years of age. The parties did not reside together after the marriage. The marriage was in no way confirmed after the appellant reached the age of eighteen. On July 10th, 1915, he filed his petition praying for the annulment of the marriage on the ground of his nonage at the time of the ceremony. The learned advisory master advised a decree dismissing the petition on the ground that the provisions of the Divorce act authorizing annulments of marriage because of nonage of the parties did not apply where the parents of the minor had consented to the marriage. It is from that decree dismissing the petition that •this appeal is taken.

TTe are constrained to think that the decree was wrong.

The proceeding was pursuant to paragraph 6 of section 1 of the Divorce act (P. L. 1907 p. 474; Comp. Stat. p. 2022) which provides:

“Decrees of nullity of marriage may be rendered in all cases * * * VI. At tlie suit of the husband when he was under the age of eighteen at the time of the marriage/ unless such marriage be confirmed by him after arriving at such age.”

It is argued that this provision of the Divorce act has been repealed.

We think not.- It is not contended that it has been expressly repealed. But it is argued that it has been repealed because inconsistent with the provision in section 8 of the Marriage act (/’. L. 1912 p. 810), which reads as follows:

“If any such male applicant for a license to marry shall be a minor under the ago of twenty-one years, or any such female applicant under the age of eighteen years, such license shall not be issued unless the parents or guardian of such minor, if there be any, shall first certify under their hands and seals, in the presence of two reputable witnesses, their consent thereto; which consent shall be delivered to the assessor, registrar or clerk issuing the license. If the parents, or either of them, or the guardian of any such minor shall be of unsound mind, then the consent of such parent or guardian to the proposed marriage shall not be required,” etc.

Since in flic present case the parents of the appellant consented to the marriage in the form prescribed by the above section, it becomes necessary to determine whether or not paragraph 6 o£ section 1 of the Divorce act is by implication repealed -pro ta-nio, to the extent of the alleged repugnancy, by the above-recited provision of the Marriage act. We think it was not.

At the outset it is to be remarked that a marriage license is not requisite to make a valid marriage. A marriage performed without a license for that purpose is as valid as one performed after securing the proper license. The provisions of the Marriage act with regard to licenses, both for minors and for others; are penal in tlieir nature, section 10 providing that if any person having authority to solemnize marriages shall perform any marriage ceremony without the presentation of a license therefor, obtained in accordance with the provisions of the act, he shall he deemed guilty of a misdemeanor. P. L. 1912 p. 811. The burden is thus placed on the officer performing the marriage ceremony to see that the proper legal forms have been observed, but if such officer, through design or oversight, fails to require the production of a marriage, license, the marriage, nevertheless, is a binding one. The license, therefore, appears to be merely an additional safeguard against hasty and ill-considered marriages and affects in no way the validity of the marriage.

Next, it is to be observed that the provisions of the Marriage act of 1912, requiring the consent of the parents of a minor before the issuing of a license, were not new legislation, but merely re-enactment of provisions already in the statutes. Legislation on this subject is first found in section 5 of “An act-concerning marriages,” passed March 4th, 1795 {Fed. Ij. p. 159), and the subsequent legislation, including that of 1912, is, in effect, a mere re-enactment of the Paterson act. It is also found in P. L. 1866 p. 960, section 1 of which provides that no person having authority to join persons together in the holy bonds of matrimony, shall marry any male under the age of twent3r-one years, or female under the age of eighteen -years, unless the parents or guardian shall be present and give their consent thereto, or until the minor applying to be married shall have produced a certificate in writing under the hand of the p'arents or guardian. And section 2 provides that if any such officer shall marry any minor without the consent of the parents or guardian, such officer shall, for every such offence, forfeit $300.

These provisions were incorporated in the revision of the Marriage act of 1874, found with various slight amendments in Gen,. Fiat. p. 2003 §§ 3, 4, 5.

In 1902, the Marriage act was again revised (P. L: 1902 p. 4900, and the same provisions were incorporated, forming sections 3, 4 and 5. ITp to the time of this latter act there was no requirement of a marriage license. In this revision, however, for the first time appeared provisions requiring the obtaining of a marriage license. Section 6, &c. The license was required only from non-residents. If such non-resident was a male under twenty-one years, or a female under eighteen,- the license could not be issued except upon the consent of the parents or guardian. Section 13.

Thus the law stood until the act was revised in 1910. P. L. 1910 p. 477; Gomp. Stai. p. 3217. In this revision it was made mandatory that a license be secured by residents as well as nonresidents. Section 7 covered the marriage of minors and contained the same provisions with regard to the consent of the parents before the issuing of a license as is found in section 13 of the act of 1902.

So we find that the present Marriage act of 1912 (P. L. 1912 p. S06), although passed subsequent to the Divorce act of 1907, is merely a revision of substantial]]' similar provisions in force long before the passage of that act. It was not a new expression of legislative intent inconsistent with the earlier Divorce act, and under well-settled rules of statutory construction cannot be held to have worked an implied pro lanío repealer of that act.

The advisory master held that it was not the legislative intention to authorize the annulment of the marriage of a minor where the parents had given their consent in the statutory form.

But clearly this is not so. It passed the Divorce act of 1907, with the provisions of the Marriage act before it relative to the consent of the parents to the marriage of minors. There is nothing in the Divorce act itself to indicate a legislative intent to distinguish between marriages of minors where consent was given and those where no such consent was obtained. After providing for the annulment of marriages at the suit of the wife when under sixteen at the time of the marriage, when not confirmed, paragraph 6 of section 1 of the act says that marriages may lie annulled “at the suit of the husband when he was under the age of eighteen at the time of the marriage, unless such marriage be confirmed by him after arriving at such age.” The suit is to be brought at the option of the husband, and his right to an annulment is to be barred if he has confirmed the marriage after reaching the age of eighteen. Speaking now without regard to the rights of the wife to an annulment in a proper case, the act places the responsibility on the husband; he alone can confirm the marriage after he becomes eighteen, and he alone can disaffirm it and begin the annulment suit. His parents cannot confirm or disaffirm, nor can they apply for the annulment. With these facts in mind, it is clear that no act of the parents prior to the marriage can make it binding against the will of the husband. They cannot deprive him of the right given him by statute, by signifying their consent to the marriage.

It seems plain, therefore, that when the legislature said that

“decrees of nullity of marriage may be rendered at the suit of the lmsband when he was under the age of eighteen at the time of the marriage, unless such marriage be confirmed by him after arriving at such age,1’.

it meant precisely what it said, and did not intend to limit decrees to marriages without the consent of the parents.

Such, evidently, was the view of Vice-Chancellor Stevens. In Williams v. Brokow, 74 N. J. Eq. 561, speaking with reference to the Divorce act of 1907, he said: “If hereafter any person shall be so ill-advised as to enter into a marriage with an infant under the prescribed age, he or she will do it with the knowledge that the relationship can be terminated at the mere will of the infant.”

Such also seems to have been the opinion of Vice-Chancellor Stevenson. In Titsworth v. Titsworth, 78 N. J. Eq. 47, he thus speaks of the act of 1907:

“Under our statute, if there be issue, the same will be legitimate, and I think the view is a correct one, that in a case like this a decree of nullity operates practically to render void at the time of its rendition what, up to that time, was a valid but voidable marriage and thus amounts to a decree of divorce a vinculo. Young men under eighteen years of age are thus permitted to contract a ‘trial marriage/ and if the wife be above sixteen years of age, it will be optional with the husband alone to affirm or disaffirm the marriage when he shall reach the age of eighteen years. * * * But while I concur in the views of this sort of legislation indicated by Mr. Bishop (1 Bish. Mar. & D. §§ 564, 566), even when innocent children may not be bastardized, the duty of the court, of course, is perfectly plain, viz., to enforce this statute in every case fairly brought within it without venturing to ‘impugn the wisdom or the policy of the law.5 ”

It is argued that the appellant intended, at the time of the marriage, to disaffirm it upon reaching the age of eighteen, and it is contended that to permit liim to do so would, work a fraud both upon the wife and the state.

But it is enough to say in disposing of this contention that the wife is presumed to have known the law, and the state by the statute has declared, in effect, that it does not care to enforce any public policy keeping marriages indissolvable contracted under the circumstances of the present case.

The decree below will be reversed, with costs, and the record remitted to the court of chancery for the entry of a decree of annulment of the marriage.

For affirmance—None.

For reversal—TTie Chibe-Justice, Garrison, Swayze, Trenciiard, Parker, Bergen, Mintijrn, Kalisch, Black, White, IIeppeniieimer, Williams, Gardner—13.


author: Parker, J.

text:
    In re condemnation of lands for school purposes in the township of Hillside, Leander Brink, appellant, v. Dallas Flannagan, respondent.
    [Submitted December 11th, 1916.
    Decided June 18th, 1917.]
    A judgment in attachment under the act of 1901 {Comp. Stat. p. 18B) is ineffective as a lieu against land conveyed by bona fide unrecorded deed made and delivered prior to the issue of the writ of attachment.
    On appeal from the court of chancery.

      Mr. William R. Wilson, for the appellant.

      Messrs. Vail £ McLean, for the respondent.
   The opinion of the court was delivered .by

Parker, J.

The controversy is over the proceeds of lands taken in condemnation ‘ proceedings, which proceeds were paid into the court of chancery pursuant to the statute. Flannagan claims them under a judgment in an. attachment suit against one McICoon, a former owner; Brink claims as holder of the title under McICoon by mesne conveyances.

The attachment was never executed, against the lands in question. It was sued out of the supreme court in 1903 and writ issued to other counties, but not to Union county, where these lands are situate. Some two years before, in 1901, Mc-ICoori had conveyed the lands to one Decker, under whom Brink claims. The deed to Decker was not recorded until 1910. Meanwhile, Flannagan went on with his- attachment suit and entered judgment therein on November 23d, 1901-.-He does not seem to have discovered the Union county lands until about 1914, when he applied to the supreme court to amend the return by including them in the attachment, but this application was denied on the ground that after judgment it came too late. The court intimated that the judgment itself was a lien on these lands, and this no doubt was the basis of the decision in the court of chancery that Flannagan, the attaching creditor, was entitled -to the money.

We think that this ruling disregarded the language of the statute, which says (Comp. Stai. p. 1SS § S) that “the judgment is a lien on the defendant’s lands acquired either before or after the entry thereof.” To the inquiry whether these lands were “defendant’s lands” at any time during the progress of the attachment suit, we answer that the case plainly shows that they were not; for they were conveyed away two years before it was begun, and.there is no intimation that the conveyance was not a Iona fide one. The master, in his report to the chancellor, puts the alleged lion of the judgment upon the ground that the deed had not been recorded. This would be correct in the case of a general judgment in a suit begun by personal process, but in attachment the language of the act is different, as we have seen.

In Garwood v. Garwood, 9 N. J. Law 183, the question was whether a writ of attachment bound land that had been conveyed by unrecorded deed under a statute that provided it, should bind the property and estate of the defendant from the time of executing the same. It was held .that it did not. A similar question arose in the court of chancery touching the priority of the writ as to a mortgage. Campion v. Kille, 14 N. J. Eq. 229; affirmed, in this court, 15 N. J. Eq. 476. The statutes arc in pari malaria, and we see no reason to depart from decisions which have stood so long unquestioned.

It is true that there is in both cases cited an intimation o£ a different result if a judgment were in question; but those intimations were obiier and predicated on the language of the Conveyance act which, if inconsistent with the Attachment act of 1901, must be deemed superseded thereby.

Our conclusion is that a judgment in attachment under the act of 1901 is ineffective as a lien against land conveyed by bona fide unrecorded deed made and delivered prior to the issue of the writ of attachment. The decree of the court of chancery will be reversed, with instruction to award the fund in question to the holder of the title conveyed by MeKoon to Decker.

For affirmance—None.

For reversal—The Chief-Justice, Garrison, Swayze, Trenciiarj), Parker, Bergen, Minturn, Kali son, Black, White, IIbppeni-ieimee, Williams, Taylor, Gardner—14.


author: Bergen, J.

text:
    William J. Fraser, appellant, v. Mary M. Fraser, respondent.
    [Submitted December 11th, 1916.
    Decided June 18th, 1917.]
    1. It is the duty of a husband to provide a home for his wife in which she is recognized by its inmates as the household mistress, and when the husband subjects his wife in the management of her household affairs to the interference of his mother who manifests an enmity towards the wife, and by words and acts assails her conduct and reputation to such 'an extent that she cannot endure it, and leaves the home for that reason, her desertion may be willful but it does not become obstinate so long as the husband makes no effort to induce her to return to a home freed from the contentious element.
    2. A wife left her husband’s home after notifying him that she would do so unless he provided a home apart from his mother, whose conduct she claimed humiliated her, and, who had charged her with being a bad, wicked woman; this the husband refused, saying, “That is up to you.” When she left, her husband was present, made no protest and did not ask her to stay. She took with her their only child, three weeks old, and the husband never attempted to see his wife or the child although they lived in the same city. After two years the husband decided to move to this state in order to obtain a divorce for desertion. Shortly before coming to this state he wrote a letter to his wife, and the day after he moved he wrote her another, the contents of these letters being the only proof of an attempt to induce his wife to return. Neither letter contained any request or invitation, but a mere statement that the home was open ■ for her return under old conditions, including the presence of his mother.—Held, that these letters were not proof of a bona fide effort to induce the wife, to return, for there was no promise to remove the real cause of the separation, which the husband recognized when he permitted his wife to leave without protest. Nor did they invite the wife to return, and were evidently written as a basis for the intended divorce proceedings, embodying terms which he knew the wife could not accept.
    On appeal from tlic court of chancery.

      Mr. Edward Mcarson, for the appellant.

      Mr. James A. Siillivcm, lor the respondent.
   The opinion of the court was delivered by

Bergen, J.

From a decree, of divorce based upon the petition of the husband alleging desertion by the wife she has appealed.

They were married in the city of Brooklyn, New York, where both resided, July 10th, 1910; a child was born April 24th, 1911; the defendant left petitioner’s house with the child May 13th, 1911, and since that date the parties have lived in separate homes.' The -reason which the wife gives for leaving her husband’s house is that Ithe conduct of the husband’? mother, who was an inmate of the home, made her life intolerable by constant quarrels, charged her with being a bad woman, estranged her husband’s affection who espoused the cause of the mother, and in many ways manifested her ill-will towards the wife by acts and speech, so that her position as mistress of the home was depreciated and she humiliated, and deprived of the comfort and happiness she had a right to enjoy; that there were many disagreements and quarrels between the women is not disputed, the ’ testimony showing that the husband was aware of the condition, and that as early as November, 1910, his wife complained to him that unless he provided her a home separate from his mother she would have to leave him. There is no doubt that it was a contentious household for which the mother was at least partly to blame, so that if her conduct was not modified there could be no happiness, and this the husband did not undertake to accomplish, for ho testified that he heard both sides and remained neutral, even when told by his wife that his mother had written a letter to a fortune teller in which the wife was described as “a bad, wicked woman.” This attitude on the part of the husband is not perhaps such legal cruelty that it would justify a wife in leaving the home, but there is a species of cruelty which cuts deeper than a blow or the lash, and that is the weakening of a husband’s love and affection through the disparagement of the wife- by the husband’s mother, and when not resented by him, but apparently sustained, is bound to destroy the happiness of the home. Under such circumstances, it is his duty to remove 'the cause, and if he refuses it is a potent element in the consideration of the questions whether he did not consent to the separation, and whether he made a bona fide effort to induce his wife to return. The animus of the mother is further manifested by the fact that, although an inmate'of the house when the child was born, she never made any effort to see the child and. so far as the testimony shows, never.did.

This cause illustrates the futility of attempting to establish such a home as a husband' should provide for his wife when one of the component parts is his mother who up to the time of the introduction of the wife is its head, and who is not willing io graciously accord to the wife her rightful position as mistress, and where the husband in all disagreements between his mother and wife either supports the mother or remains neutral between the contending forces. It is the duty of the husband to provide a home for his wife where she is recognized by its inmates as the household mistress, and when the husband subjects his wife in the management of her household affairs to the interference of his mother who manifests an enmity towards the wife, and by words and acts assails her conduct and reputation to such an extent that she cannot endure it, and leaves the home for that reason, her desertion may be willful, but it does not become obstinate so long as the husband makes no effort to induce her to return to a home freed from the contentious clement. Shortly before the wife left she again told her husband that unless he provided d. home apart from his mother she would leave, and he admits that his reply was, “That is up to you,” and on the day she moved he was present cutting the lawn, but paid no attention to the moving, nor did he say a word to her of protest or request her to remain.

■ The fair inference from this record is that he tacitly consented'to the separation, preferring to retain his mother rather than his wife and child. Under these circumstances, the husband was not without fault, and, assuming that the desertion by the wife was willful, it is not obstinate unless after a bona fkle- effort to effect a reconciliation the wife refused to return, and we must therefore consider and determine whether such an effort has been made. It was manifest to the husband that no permanent reconciliation could be effected if the same conditions remained and the wife required to accept a home with his mother who considered her “a bad, wicked woman.” This was a humiliation he knew she would not submit to. In our o]3inion the record fails to show any such bona fide effort as the law requires. In Van Wart v. Van Wart, 57 N. J. Eq. 598, the husband, when the wife was leaving, as in this case, “stood by without asking her to stay,” and it was held that it was his duly to make a bona'fide effort to induce her to return. “Desertion cannot be considered as obstinate on the part of one when the separation is acquiesced in by, and entirely satisfactory to the other, who 'neither entertains nor manifests any desire that the separation, nor the causes which brought it about, should cease.”

Chipchase v. Chipchase, 48 N. J. Eq. 549; affirmed on opinion below, 49 N. J. Eq. 594. AVhat has the petitioner done in this case to manifest a sincere desire that the separation, and the causes which brought it about should cease, the cause being a contentious mother-in-law unkindly disposed towards the wife? AVe have his admission that he has never visited his wife or child, although they lived in the same city, and he testifies that he has no affection for the child. He does not claim that he would not have been allowed to see either his .wife'or child, or that he made any effort to do so; he sulked in his tent until he wished to obtain a divorce. In March, 1913, he removed to New Jersey for, as he testified, the express purpose of obtaining a divorce for desertion, and his only effort to induce his wife to return was sending her two letters, one dated February 1st, 1.913, and the other April 1st, 1913. The first letter was written shortly before he moved to this state and when, presumabty, he had decided to do so for the purpose of obtaining a divorce, and it should be read from that viewpoint. He asks whether she expects to live in the present manner for the rest of her life; whether she intends to return to his home, or whether she is going to get a divorce, and then adds: “The home is just the same as it always was—I never told you to go or debarred you from returning- and you can return under tlie same conditions’ as you originally came to it,” and that if she wished a, divorce, “You can have a divorce from me at any time without any contest.”

It is not difficult to read between the lines that this was not a bona- fide attempt to remove the cause and end the separation. Tt contains no word of affection, no request to return, all that he oilers is a place to live under the old conditions, and was evidently written to lay the basis for a divorce in this state after removal thereto, besides this an offer not to contest a divorce suit instituted by her is hardly consistent with a bona fide desire to induce a reconciliation, but rather an invitation to join with him in making it permanent by a divorce.

The second letter contains a notification that he has removed to New Jersey, .and that his house was still open to her “the sanie as prior to the lime you left me and your home at Brooklyn.” Neither letter contains any invitation or request to return, and the last was written immediately after he moved to this slate in order that he might secure a divorce, and it is not credible that the petitioner, having- just moved to the state with the intention of obtaining a divorce, really intended that it should induce his wife to accept and thus prevent the accomplishment of the purpose he had -in view, lie knew that so long as the original cause remained he was in no danger of acceptance, he does not invite, but informs her-that she may return under old conditions, and it was manifestly not his intention to ask her to come, for he carefully avoids doing so, but at (lie same time notifies her that if she comes she must do so with the cause of separation still present. To this letter defendant replied expressing her desire and willingness to return if the mother was not a part of the family. The petitioner having, in effect, consented to the separation, and failed to show that he has made a bona fide attempt to end the separation, is not entitled to a decree for divorce for desertion.

The decree appealed from.will be reversed and the record remanded to the court of chancery so that the petition may be dismissed.

For affirmance—None.

For reversal—The Chiee-Justice, Gaeeíson, Swayze, Bergen, Minturn, Kalisoi-i, Black, Wi-iitb, IIepeenheimer, Williams, Taylor, Gardner—12.


author: White, J.

text:
    In the matter of the last will and testament of Isaac Gluckman, deceased.
    [Argued March 14th, 1917.
    Decided June 18th, 1917.]
    1. A will properly proved to have been executed with due legal formality by a testator whose testamentary capacity is not questioned is entitled to probate, in the absence of fraud, undue influence, or mistake in the identity of the document executed.
    2. Physical or educational disability, however, as blindness or inability to read the language, if accompanied by circumstances leading the court to suspect possible imposition, subjects proponents of a will to the additional burden of showing to the satisfaction of the court that testator knew its contents so that he understood them.
    .‘Í. This burden is sustained by satisfactory proof that the testator was made acquainted with and understood the contents of the will to the same extent that lie would have done if the disability had not existed and he had read the will himself. The extent of the burden is measured by the effect of the disability.
    4. In the absence of fraud or of undue influence, a variance between the will and the instructions from which it was drawn will not defeat probate.
    5. In the absence of fraud or of undue influence, mistake, except in identity of the instrument executed, will not defeat probate.
    0. Misunderstanding of the legal effect of the provisions of a will, whether resulting from erroneous legal advice or otherwise, will not, in the absence of fraud or of undue influence, defeat probate.
    On appeal from the prerogative court, whose opinion is reported in 87 N. J. Eq. %8-0.

    This is an appeal from an order of the prerogative court affirming an order of the I-Indson count)' orphans court denying probate to a document offered as tlie last will and testament of Isaac Gluckman, late of tire city of Bayonne, deceased. Gluckman left a widow but no descendants. The will in question was drawn and executed two days before his death when he was about to undergo an operation for appendicitis, and it gave his entire estate to his executors to pay his widow, out of the income, “a weekly allowance of $40 and such other sum or sums as may be necessary during the term of her natural life,” she to remain in the residence, and after her death .the entire residue of the estate to go to such home for old people as the widow should by will direct, or in default of such direction, as should be selected bjr the executors. It appointed as executors Mahnken, the president of a bank with which testator did business, Annett, testator’s real estate agent, and Judge Roberson, his lawyer who had rejmesented him during a period of twenty-five years, and who drew the will. Testator was unable to read or write (except his own signature) in the English language, but could talk and understand that language, although somewhat brokenly and imperfectly. He was in bed when lie gave instructions for drawing the will, and his lawyer testified that the instructions as given were:
    “All of the property for Mrs. Gluckman for life. I want Mr. Roberson and Annett and Mahnken to be executors. The debts of the estate are so many that I do. not know when she will get any income; allow her forty dollars a week out of the income. Not move from the house until she die.”
    “Then he said after I had stopped writing: T give her as much more as is necessary for her support, and after her death to Homo for Old People.’ ” The lawyer produced a short abbreviated memorandum made by him as these instructions were given. He says he understood or interpreted the part of the instructions after the one for the appointment of executors to be a modification of the first sentence of the instructions; that he went into an adjoining room and at once drew the will in accordance with this interpretation, brought it hack and read it paragraph by paragraph to the testator, who fully understood it and nodded assent to each jiaragraph; that he told testator that the provision of the will which directed the executors to pay tbe widow in addition to tbe $40 weekly allowance, “such other sum or sums as .may be necessary during the term of her natural life,” would permit the executors to give and allow her the whole income after the debts were paid, and that the testator said, “All right. That’s good.” The will was then executed with complete formality in all respects. There was evidence that after the execution of the will, and immediately before the operation, testator told his wife and others that he had left everything to his wife. The estate consisted of about one hundred small houses, estimated to be worth from $200,-000 to $250,000, but subject -to $101,000 of mortgages and $9,000 or $10,000 of unpaid back taxes. There were also outstanding promissory notes of the testator amounting to from $16,000 to $25,000. ' ■
    There was a former will executed some four years earlier, and which is still in existence, which, if unrevoked, gave $5,-000 each to a brother and to a sister of testator, $1,000 to the widow oE á deceased brother, and the remainder of testator’s estate to his widow absolutely. The brother and sister are 'the caveators, and testator’s widow, while not formally a caveator, was represented by counsel who took the chief part in opposing the probate.

      Mr. Elmer W. Demwresl, Mr. Lindley M. Garrison and Mr. Gilbert. Qollins, for the appellants-proponents.

      Mr. Max Levy and Mr. Clarence Linn, for the caveatorsrespondents.

      Mr. Joseph M. Noonan, for the respondent Bosa Gluckman.
   The opinion of the court was delivered by

White, J.

The question involved is one of probate under tbe statute, pure and simple, and not one either of construction or of reformation.

The document offered for probate is of testamentary character; it is in writing; it was signed by the testator; it was both signed by the testator and declared by him to be his last will in the presence of two witnesses who were present at the same time, and who subscribed their ñames thereto, as witnesses, in the presence of the testator, and at his request. It has not been revoked and the testator is now dead. No question is raised involving lack of testamentary capacity on his part.

A will so executed, under these circumstances, is entitled to probate unless it be the result of fraud or of undue influence or (within certain limitations) of mistake. Fraud (and this involves bad faith on the part of its perpetrator) willfully deceives free agency; undue influence over-masters it; while mistake, whether self-induced or the result of the innocent error of another, misleads free agency, without bad faith or domination on the part of anyone.

Where a testator, in addition to complete testamentary mental capaeitj1, is in full enjoyment of average physical and educational faculties, it would seem that in the absence of fraud or of undue influence, a mistake, in order to defeat probate of his entire will, must in substance or effect really amount to one of identity of the instrument executed; as, for instance, where two sisters, in one case, or a husband and wife, in another, prepared their respective wills for simultaneous execution, and through pure error one executed the other’s, and vico versa. Anon. 14 Jur. 402; Re Hunt, L. R. 3 P. & D. 250; Nelson v. McDonald, 61 Hun (N. Y.) 406.

Short of this, however, or of something amounting, in effect, to the same thing, it is against sound public policy to permit a pure mistake to defeat the duly solemnized and completely competent testamentary act. It is more important that the probate of the wills of dead people be effectively shielded from the attacks of a multitude of fictitious mistakes than that it be purged of wills containing a few real ones. The latter a testator may, bj' due care, avoid in his lifetime. Against the former he would be helpless.

Wliere, however, a testator, by reason of physical or educational disability, as by blindness or by inability to read the language in which the will is written (as in the case sub judice), is unable by the exercise of 'his own faculties, to see for himself that the will expresses his testamentary desires, an additional burden is imposed upon the proponents of the will, where there are any circumstances which lead the court to suspect that he may have been imposed upon (Patton v. Hope, 37 N. J. Eq. 522), namely, that of showing to the satisfaction of the court that such a testator was_ made acquainted with the provisions of the will so that he understood them. Day v. Day, 3 N. J. Eq. 549; Harris v. Vanderveer's Executor, 21 N. J. Eq. 561; Lyons v. VanRiper, 26 N. J. Eq. 337; Hildreth v. Marshall, 51 N. J. Eq. 241.

Most- frequently where a physical or educational disability of this character exists, contested will cases are founded upon fraud or upon undue influence.

In the present case, however, the learned trial judge of the orphans court of Hudson county before whom the issue was tried, and the learned vice-ordinary who heard it on appeal to the prerogative court, were both of the opinion that neither fraud nor undue influence entered into the making of this will. A careful examination of the. evidence leaves us in entire and emphatic accord with this view.

Both of these judges, however, were convinced that, by reason of what they thought was an error on the part of the lawyer who drew the will in misinterpreting the testator’s intentions, and also in advising testator of the legal effect of one of its provisions, the will as executed did not, in at least one very important respect, carry out the intention of the testator, and that it was not, in this respect, understood by him when he executed it. For this reason probate was refused. We think this was error.

. While we agree that a situation arose under the evidence (by reason of testator being unable to read the English language, taken in connection with the testimony tending to show a state of mind or intention on his part inconsistent with that indicated by the will as executed) which put the burden upon proponents of showing to the satisfaction of the court that testator was made acquainted with the provisions of the will so that he understood them, we, nevertheless, think that proponents successfully sustained this burden.

The contrary view of the learned trial judges below seems in reality to have been based upon two uncontrolling elements, namely—first, what they thought was a variance between the will as executed and the instructions from which it was prepared, and secondwhat, if it existed, amounted to a pure mistake upon the part of the testator (whether self-induced or resulting from erroneous legal- advice of his lawyer) as to the practical effect of a provision of the will which he knew it contained and thoroughly understood.

As to the first of these, it is quite immaterial whether the will did or did not correctly embody the instructions, if in point of fact the testator, when he executed it, was made acquainted with and understood its contents. As was said by Vice-Ordinary Beecl, in In re Livingston’s Will, 37 Atl. Rep. 770: “It is said that her instructions were not followed in drafting the will; * * * and that the will as drafted does hot carry into effect that wish. * * * But, whether it does or not, if she was capable of making a will, and there was no fraud practiced upon her by which she was misled into signing what she did not wish to sign (and there is no proof of fraud in this case), it would not matter what variation there might be between the instructions and the executed instrument.

As to the second: Assuming that the lawyer’s assurance that the “such-sum-or-sums-as-may-be-necessary” clause would permit the executors to pay over the entire income after the debts were satisfied, was intended and understood as legal advice upon the construction of this clause, and that it was legally unsound (which, under the circumstances, we think it was not), that, also, in the absence of fraud or of undue influence, is insufficient to defeat probate of the will. It is no new thing for provisions in wills to turn out, under the established rulings of the courts, to have a very different meaning from that which the testators themselves, under the honest but mistaken advice of counsel,. thought they had when the wills were executed, but this has never been a ground for refusing. probate. The learned vice-ordinary recognized this rule, citing Collins v. Elstone (1893), L. R. Prob. Div. 1, but thought the situation was different where the testator could not read nor write. We think the difference is limited by the effect of the disability which gives rise to it. If a blind testator makes a will, and through pure mistake a clause which he intended, and gave instructions, to insert, is left out, the will is entitled to probate if the testator was made acquainted with and understood what it did contain, in spite of the fact that he intended to insert another clause which by inadvertence was omitted. A tinge of fraud or of undue influence might shed an entirely different light, but in the absence of either of these, the error becomes a mistake, pure and simple, not resulting from, and therefore not protected bjr, any failure to conform to any rules devised to overcome the disadvantage of the disability.

So, in this case, the testator was made acquainted with and understood the fact that the will which he was about to execute provided that his wife should get, during her lifetime, from the executors, out of the income, $40-per week and such additional sums as should be necessary. Knowing and understanding that, hes knew and understood exactly what he would have known and understood, if he could have read the English language with average intelligence and understanding and had read this will himself instead of its being read to him. We think, therefore, that the honest legal advice (if it was legal advice) given him as to what the executors could legally do under the clause in question, can, even if legally unsound, have no more effect in preventing probate of the will in the one case than in the other, which is none at all.

This brings us to the one material question in the case, which is:. Did the testator when he executed, this will know and understand its provisions to the same extent that he would have done had he been able to read and understand written English with average facility and comprehension, and had he read the will himself instead of having it read to him? We think this question must be answered in the affirmative. He was a keen business man, in full possession of his faculties, and thoroughly intelligent (as is evidenced by his being “well versed in Hebrew lore”), able and accustomed perfectly to understand and be understood by Judge Eoberson, who had been his close and constant legal and business counsel while testator pursued the road from penury to comparative affluence, during a period of twenty-five years, and the will was read to him and expressly assented to by him paragraph by paragraph. The clause in 'question is of such a nature that to hear it read would necessarily convey the knowledge of what it said. It said the executors were to pay the widow out of income such sums in addition to the $40 per week as should be necessary during her life, with a remainder over after her death to a home for old people, to be selected in the manner directed. Obviously, upon hearing, this clause read by his lawyer, testator knew and understood exactly what he would have known and understood if he could have read English with perfect facility and had read it himself. That this is so is also evidenced by the fact that when the lawyer told him this clause would permit the executors to pay all the income to the widow when the debts were paid, he said, “All right. . That’s good.”

We think, therefore, that proponents have sustained the burden of showing that testator knew and understood the contents of the will when he executed it, and that it should be admitted to probate.

We may say in this connection also that we are not at all certain that there was any mistake whatsoever made by anybody in the preparation of this will or in what was said as to the practical effect of the provision in question. When the testator’s personality was withdrawn by death, it left this heavily-involved estate in a most precarious condition, and no one understood better than the testator when he made his will that this would be so. He knew that his estate, consisting, as it did, exclusively of one hundred small houses, worth maybe $200,000, but subject to over $100,000 of mortgages and also to shrinkage in rental and market value from deterioration and obsession, not to mention the cost of constant repairs'and renewals, with $10,000 of unpaid taxes in arrear, and upwards of $25,000 of floating debt, was a leaky ship in a stormy sea, and that if his wife was to get any real benefit from it at all, ' there must be skillful handling. He provided for such handling by securing the services, as executors, of the three men who had assisted him most in the very lines where strength would be needed, namely, his banker, his real estate man and his lifelong lawyer. If they were to succeed they would need leeway, discretion, full control. Also, it is quite likely that the practical effect of the clause in question may turn out to be to permit the payment of all the income to the widow after the debts are paid, just as the lawyer said it would. It does not seem probable that the net income will amount to more than will be necessary for the widow to live upon in the manner her husband would have desired, and her age and the assistance she rendered him entitle her to enjoy as soon as the dangers which threaten the entire estate are safely passed. This testator may well have thought he was adopting the very best way possible under the circumstances of securing to his wife the entire income for her life. That may have been what he thought when he told her and others that he had left everything to her. Certainty, he did not mean that assurance literally, as the provision over after her death to a home for old people, which he included in his instructions and discussed and approved the details of as fixed by the will thoroughly demonstrates.

But be this as it may, we are quite satisfied that for the other reasons herein stated the will should receive’ probate and the order of'the prerogative court affirming the order of the orphans court denying probate is, therefore, hereby reversed and the matter remanded to the prerogative court in order that an order may be duty made admitting the will to probate. The costs will be paid out of the corpus of the estate.

For affirmance—None.

For reversal—Garrison, Swayze, Trenci-iard, Bergen, Minturn, Kalisch, Black, White, PIeppenheimer, Williams, Gardner—11.


author: Per Curiam.

text:
    In the matter of the probate of the last will and testament of John Tutty, deceased.
    [Decided June 18th, 1917.]
    On appeal from a decree of the prerogative court advised by Vice-Ordinary Stevens, who filed the following opinion:
    This is an appeal from the decree of the Monis orphans court admitting the will of John Tutty to probate. The appeal is based upon the ground that its provisions were tli'é product of the undue influence exerted by Tutty’s son,: William, to whom testator gave nearly all his property. ■' ■ '
    Testator was eighty-four years old at the time of his death on May 18th, 1914. The will was executed ten days previously. He left three children—the son, William, and two daughters. He came to this country from Ireland when a young man and worked in the mines of Morris county. By his industry lie had accumulated an estate of about seven or eight thousand dollars: It consisted of a house in Newark worth three or four thousand dollars, a house at Mount Hope, worth three thousand, two lots in the same place of small value and a little money. He had rented the house at Mount Hope to his son, William, who kept a saloon there. His two daughters lived in New York. He had been twice married. The three children were those of his first wife. When his second wife died he went to board with his daughter Mrs. Monahan, and lived with her from' 1910’ to 1913. He left, according to the evidence of-Mrs. Williaiq Tutty, because his daughter wanted him to pay $20 a month for his board, and he would not go to William’s house because William wanted-$15. His niece Mrs. Flanagan,- who lived-at Dover, was willing to take him for $12, and so he went there in May, 1913. She had four rooms and a husband, who was a common laborer, and six children. There Tie remained until May 3d, 1914, when he was taken to William’s house under the circumstances I will presently refer to. For a considerable period before his death, he was deaf, had Bright’s disease and was afflicted with asthma so badly that he slept at night in a chair. -It is proved beyond question that while at the Flanagan house he grew weaker in mind and body and toward the end labored under occasional delusions. He would hit the flour barrel with his cane, saying, “Git up, Dan, git up,” and would strike the walls of the room, under the delusion that he was sounding the walls of a mine. He could do little or nothing for himself and required constant attention day and night. Both Lis doctor and his relatives wanted him to go to some institution where he could' be properly cared for. His means were ample; but his penuriousness and prejudices prevented him. Up to' the time William took him away from the Flanagans he had made two wills, one, while he was living in New York, giving the Mount Hope property to William, and the Newark'property to his two daughters; the other, while with Mrs. Flanagan, giving almost everything to her. This latter will is called in the evidence the Davenport will.
    On May 3d, between seven and eight o’clock in the evening, William, who lived only three or four miles awajr, came to the Flanagan house with his horse and wag-on and asked his father to take a drive. He had heard that the Flanagan will had been made. While thejr were driving, something was said which induced the old man to quit the Flanagans and go to William’s house to live. William’s account of the conversation, and, of course, he alone knows what occurred, is meager and unsatisfactory. He says:
    “I mentioned the Davenport will and he said he didn’t know of any Davenport will being drawn. * * * I told him there was one drawn; he said he expected to have another drawn by Mr. Stickle.”
    On being asked to tell the whole conversation William replied, “That is about as much as I know about it.” He says further that when he started he intended to take him back to the Flanagans. His explanation of why he did not is, “He didn’t want to come back. He wouldn’t stand for it.” Now, this is certainly remarkable.- The old man was, according to all the evidence, strange as it may seem, perfectly satisfied with his surroundings. He did, indeed, receive more care from Mrs. Flanagan and from her husband than one would have thought possible under the circumstances. So well. satisfied was he that he had made a will in their favor, and in all the testimony not a single complaint is to be found about their treatment of him. William, on the other hand, had heretofore refused to take him unless he was willing to pay $15 a month. But the situation was suddenly changed. William, if we may credit his evidence, without making any bargain with him, merely because the old man “would not stand for it”—i. e., would not stand for going back to the Flanagans, took him, without conditions, to his own home. He says that when he got there he sat up with him all night, but that not a word was said about the will. Early next morning, however, we find him going to Eockaway and bringing back Mr. Stickle. Mr. Stickle says that he found him in the kitchen; that they went into an adjoining room and that the testator told him that he wanted him to draw a will; that he had made a will or two before and they didn’t suit him; that he wanted him to make a power of attorney besides. From the instructions then received, he prepared a will, executed on May 8th, four days afterward. Both Mr. Stickle and the subscribing witnesses testify that his mental condition was good when he signed it. He died, as I have said, ten days afterwards.
    The question is, 'Was this will the product of undue influence ?
    In Dale v. Dale, 88 N. J. Eq. 27k, it was held by the court of errors and appeals that where a mother mentally enfeebled by disease, and in a position where one of her two sons could exercise an improper influence over her, made a will leaving nearly all her property to him, the burden was upon him to show that such instrument was executed-without the exercise of undue influence.
    In Lynch v. Clements, 2k N..J. Eq. 185, Yice-Chancellor Dodd quotes the following passage with approval: “In regard to undue influence the cases are almost infinite in number and variety. Where the party to be benefited by the will has a controlling agency in procuring its formal execution, it is universally regarded as a very suspicious circumstance and one requiring the fullest explanation. So, where a will is unreasonable in its provisions and inconsistent with the duties of the testator with reference to his property and family, this will of itself imposes' upon those claiming under the instrument the necessity of giving some reasonable explanation of the unnatural character of the will. While undue influence embraces fraud, fraud by ho means embraces every species of undue influence, since it is quite supposable that one may really exercise a degree of influence over the testator in producing the testamentary act, which upbn'evcry just ground is fairly'entitled to be considered extreme and'unreasonable either in character or degree without its being fraudulent.”
    Now, in the case in hand, the disposition was inconsistent with the duty the testator owed his family. Ilis daughters had as much claim' to share in his bounty as his son. While he had never quarreled with' them, he had quarreled with William about the rent.' They were in the habit of going to sec him at the Flanagans. William himself admitted that he knew of no reason why he should have been preferred.
    In considering the question of undue influence the mental power of the testator must be taken into account. Tutty’s mind had become diseased and enfeebled. As mind and body weaken, strength to resist the importunity or suggestion of on'e who occupies the dominate position declines. Four years before his death, while in good health, Tutty had made a perfectly fair will, apportioning his property among his children. Less than six months before bis death, while living with the Flanagans, he had made a will in their favor, the provisions of which were altogether indefensible. He could only have done so because mentally dominated by his surroundings. Within a few hours after he had been released from these surroundings, we find him making another will almost equally inequitable. He makes William the recipient of practically all his property, without getting from him, if we may believe William’s story, a promise even to care for him until death.
    That more passed between father and son than the son is willing to admit can hardly be 'doubted. William told Monahan, testator’s son-in-law, the day before the funeral, so Monahan testifies, that he had the will made to suit himself. He told Cahill, the other son-in-law, that, this time, he had the will made out his way. He made a similar statement in the hearing of Margaret Cahill and Mary Spears, and to Mary Monahan he said; he might as well have it as the Flanagans. If these witnesses, all of them of apparent respectability, are interested, they are not more so than William.
    His conduct in reference to the other wills merits remark. As soon as the will in his favor was executed, he obtained from his father authority to get the others. Upon getting them he at once burned them. On receiving the will from Mr. Smith, he very disingenuously told him, that if his father wanted another will drawn he would bring him down. “If I do bring him down (so Mr. Smith testifies) I want you to look after my interests, for I think I am entitled to the bulk of the estate.” William denies these various conversations, but coming, as they do, from so many witnesses, it is difficult to believe that they did not take place.
    We have, then, on the one hand, a man eighty-four years old, whose mind and body have all but failed, and on the other, a son in a position completely to dominate him. No sooner does this feeble, old man come under William’s influence than he makes a will in his favor, although William admits that he knows of no reason why he should have preferred him. According to the cases before referred to, it is for William to give some reasonable explanation why the inequitable disposition was' made, and this he has failed to do. The decree should, therefore; be reversed.

      Mr. Charles A. Bathbun, for the appellant.

      Mr. Elmer King, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Ordinary Stevens.

For affirmance—Garrison, Swayze, Trenoi-iard, Parker, Bergen, Minturn, Kalisoi-i, Black, White, Heppenheimer, Williams, Taylor, Gardner—13.

For reversal—None.


text:
    J. Edward Farnum et al., respondents, v. Pennsylvania Company for Insurance on Lives, &c., appellant.
    [Decided July 13th, 1917.]
    On appeal from a decree of the court of chancery reported in 87 N. J. Eq. 108.

      Messrs. McDermott & Enright, for the respondents.

      Messrs. Grey & Archer, for the appellant.
   Per Curiam.

The decree appealed' from will he affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Backes.

For affirmance—Garrison, Swayze, Trenoi-iard, Parker, Bergen, Minturn, Kalisoh, Black, White, Heppenheimer, Williams, Taylor, Gardner—13.

For reversal—None.


text:
    Florence I. Merkel, appellant, v. William Merkel, respondent.
    [Decided June 18th, 1917.]
    On appeal from an order of the court of chancery advised by Vice-Chancellor Griffin, whose opinion is reported in 87 N. J. Eq. 15If.

      Mr. Herbert G. Gilson and Mr. William G. Gebharclt, for the appellant.

      Messrs. Raymond, Mountain, Van Blarcom '& Ma/rsh, for the respondent..
   Per Curiam.

This is an appeal from an order of the court of chancery discharging á restraining order that was in effect a preliminary injunction. The categorical denial by the defendant of the misrepresentation on which the bill is founded would of itself justify the order that has been appealed from.’ The fact that the vice-chancellor upon weighing the evidence found for the respondent, clearly cannot weaken the respondent’s case. The correctness of the Vice-chancellor’s conclusions as to this is not now under review, as it would be if the appeal were from a decree made upon final hearing.

The order is affirmed.

For affirmance—Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, .Kalisch, Black, White, Heprenheimer, Williams, Taylor, Gardner—13.

For reversal—None.


text:
    David F. Plahn, administrator, &c., appellant, v. Anita Variel et al., respondents.
    [Decided July 13th, 1917.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Lewis, whose opinion is reported in 86 N. J. Eq. 80, sub nomine Givernaud v. Variel.

      Messrs. Besson, Alexander & Stevens, for the appellant.

      Messrs. Smith, Mob on & Ilerr and Messrs. Collins & Corbin, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Lewis.

For affirmance—Garrison, Swayze, Trenci-iard, Bergen, Minturn, Kalisci-i, Black, I-Ieppenheimlr, Williams, Taylor, Gardner—11.

For reversal—None.