author: Stevens, V. C.

text:
    Herman B. Gates v. Anna Gates.
    [Argued March 15th, 1899.
    Decided May 13th, 1899.
    Filed May 15th, 1899.]
    A husband, who lived apart from his wife in the same village, made his-wife a regular monthly allowance. He provided her with fuel and a newspaper. He took her out riding and visited her when she was, sick. The wife, however, without any just cause, refused to live with him, one of her reasons-being that she thought him unfaithful, but without ground. — Held, that the-husband was, under the circumstances, entitled to a decree of divorce on the-ground of the wife’s desertion.

      Mr. William D. Daly, for the petitioner.

      Mr. Alexander Simpson, for the defendant.
   Stevens, V. C.

This is a suit for divorce on the ground of desertion. The petitioner and defendant were married in 1864. The petitioner is superintendent of the oil refinery of John Ellis & Company,, whose works are situated at Edgewater, on the Hudson river. He has been in the employ of that concern, as superintendent or foreman, for eighteen years. During all that time he has-resided at Edgewater. He lived with his wife until June, 1892. Since then, except for a few weeks, he and defendant have lived apart. The petitioner, who appears from the evidence to have been a man of kindly disposition, was much attached to his wife. The defendant, on the other hand, who was of a quarrelsome temperament, imbued with a groundless belief that her husband was unfaithful, appears to have been lacking in attachment to him. Her letters written after the commencement of this suit (the only ones he produces) stamp her as a woman quite unlovely.

For several years prior to 1892, Mrs. Gates was most of the lime without servants, not, it would seem, because Mr. Gates was averse to having any, but because Mrs. Gates had not been .able to keep them, or possibly because, being extremely jealous, ■she preferred to do the ordinary house work herself, and have, a ■woman from the neighborhood do the laundry work. There is no doubt, both from her owfi evidence and from his, that for ;years before the separation she had made his life miserable by her groundless charges. In the early summer of 1892, because •of failing health, he had become unable to attend to his duties. He was suffering from nervous dyspepsia or catarrh of the ■.stomach. He says that, although in this condition, I never had any rest at home; I could not even lie in bed and rest at night without being disturbed; she scolded and abused me about ■everything.” To get a little rest, he left his house in June, 1892, and boarded for about ten days in a neighboring village with one of his employes, the witness White. Then he returned. Before his return, his wife, without consulting him, had made ■up her mind to go west to the house of her brother, in Ohio. .She started on the afternoon of the day he returned.' He says that she said to him that she was'going to live with her brother and wasn’t coming back. She says she did not. She went first ■to her brother’s, then to the house of her son, in Jamestown, New York, and then to her father’s house, in Springfield, Massachusetts. While absent she stated both to Mrs- Southwick and to Mrs. Rifle that she would not go back to live with her husband. .She returned to Edgewater from her father’s house about the beginning of August. In the meanwhile her husband had gone ■to Williamsport, Pennsylvania, where his sister was living. While there he advertised for and obtained a “ housekeeper,” as -she is called, or rather a woman employed to do general house work. He brought her back with him a short time before the return of Mrs. Gates. So far the parties agree, but from this point on there is a wide divergence in their evidence. Mr. Gates -says that upon his coming home he started housekeeping with his son ; that Mrs. Gates came to his house shortly afterward ; said to him that the housekeeper had no business there; refused to remain over night, although urged to stay, and went to New York. She says that on her return from her father’s, she lived with Mr. Gates “ maybe four or five or six weeks, something, like that,” and then went to Asbury Park.

.This much is certain, that on August 11th, 1893, Mr. Gates-moved out of the house which he had theretofore’occupied, into an adjoining flat; that he left for his wife’s use most of the furniture, and that she arranged with a Mrs. Polhemus to move-into the house thus vacated and receive her as a boarder. This-Mrs. Polhemus did about the middle of August. In the latter part of that month Mrs. Gates again visited her mother. While in Springfield she received a letter froniJMr. Gates, asking her’ to take a trip with him to Fortress Monroe. Persuaded by her mother, she consented to go, and met him in New York. They were gone three weeks and returned by way of Washington. On her arrival at that city late one afternoon, feeling indisposed, her husband went for her to a physician and brought her back some medicine. ' After he had taken his dinner he, according to his-wife’s statement, went out, returning about ten or eleven o’clock in the evening. She scolded him, as she says, because he did-not come home sooner, and he, in consequence, left the apart-ment, and she did not see him again till the next morning, when-they took the train north. At Philadelphia he left the train. He says it was arranged beforehand .that they should stop over there and visit some friends. She denies this, and says that lie-got off, giving a reason which she did not think proper to repeat qn court. She remained in the train and went on to Edgewater alone. He returned a day or two afterwards. From that time on they never lived together. She boarded at the house of ‘Mrs. Polhemus until the spring of 1894 and he occupied theadjoiuing flat with his sister.

It was earnestly contended that the desertion took place in June and continued with the interruption only of the Fortress Monroe trip. It is therefore important to know when and under what circumstances Mrs. Gates left for Ohio. Mr. Gates’ letter of June 5th, written at Williamsport, shows that Mrs. Gates must have left for the west a few days before that date.. Mrs. Gates says that she stayed one week in Cleveland, Ohio, and one week in Jamestown, New York.

Shortly before June 28th, as may be inferred from Mr. Gates’ letter of that date, Mrs. Gates must have reached Springfield. Now, Mrs. Gates says that she stayed at her father’s house on that occasion; to use her own words, “ three or four weeks— maybe more.” It is not likely that she reached Edgewater before August. Mr. Gates’ sister came to Edgewater on August 11th, so that Mrs. Gates could not have lived with her husband more than two or three weeks at most. I am inclined to think, •as Mr. Gates testifies, that she did not live with him at all. I shall not take time to state my reasons for so thinking, for, assuming that she did not, I .still think there was no desertion at this period.

• I have reached this conclusion on the letters and testimony of Mr. Gates. Mr. Gates, it is true, testifies that his wife deserted him when she went west and that he then and always thereafter urged her to stay with him, but the letters that he wrote from Williamsport in June and July, 1893, hardly bear out this statement. From their perusal it is apparent, in the first place, that the parting between husband and wife must have been cpite amicable, for in his letter of June 5th, two or three days after it occurred, after telling his wife how his sister was and how he was doing, he writes :

“I hope you will write me and let me know how you are enjoying yourself. I will have lots of spare time on hand to read all you have a mind to write. I have fulfilled my promise of writing you, and will look for a reply from you.”

It is further apparent, in the second place, that some arrangement must have been made in reference to the wife’s support. In his letter of June 8th, he encloses $10 with the statement:

“Would [send] the full amount for this week, but am a little short just now, and don’t want to draw on the bank without it becomes necessary. You say that if I had come to Williamsport in the first place (that is, I suppose, instead of going to Mr. White’s house), things might have been different. Now, don’t you know what a rumpus you would have started if I had spoke of going anywhere? * * * You seemed determined that, whether sick or well, I must be abused just about so much if I did or mentioned doing or going anywhere that did not happen to suit you, and this I can’t nor will not stand. I am old enough not to have a ”-

Here the exhibit ends, a page being missing. This passage points to a quarrel followed by some sort of arrangement in reference to an allowance, made with a view to either a temporary or permanent separation. What .otherwise can we understand by the expression, “ full amount.” “ Things might have been different?”

In his letter of June 21st we find the following passage:

When you say that you have always treated me kindly when I was sick, first let me ask you how long it is since you told me if I behaved myself like other men, I would be all right, and you guessed that there was no more the matter with me than anybody else, if I wanted to behave myself. These things showyour feelings in the matter, and of course you cannot treat anyone right when you think they are so entirely bad. * * * Now, the last time I left home, 1 left for good. I see there is no use trying it again. Your kind offer that I may come home again if I treat you right, I am thankful for, but will not avail myself of it. I went away to stay, and stay I will.”

This passage appears to point to a determination on the part of Mr. Gates not under any circumstances to live again with his wife. But it is immediately followed by another which points apparently in the opposite direction. He continues:

“ Of course, I cannot take the housekeeper home with me, and if, when I get back to work again, you make it too warm for me, as you once told me you would, then I will go away for good.”

Standing by itself, this passage might refer to a determination (already formed) to take the flat adjoining his home, which he afterwards occupied, and his expression, “ I will go away for good,” might refer to his leaving Edgewater, in order to avoid meeting his wife even out of doors. But then he continues, for if I have to live in such a quarrel at home or board away and be harassed all the time, I cannot keep well. That is out of the question.” What this last passage means, I do not know.

On cross-examination, Mr. Gates’ attention was called to these passages, and he was asked the question, “ When you wrote that •letter were you still in this frame of mind that you wanted your wife to come back to you?” to which he replied, “Evidently uot.”

On June 28th he wrote as follows:

Dear Wipe — You will see by this that we are at home again — arrived last night. * * * Of course I would treat you nice when you was going ■away, as I always have, for there is no telling what may happen before we meet again, and I would' not want to think, if anything did happen that we never met again, that we parted in anger.”

Then he tells why. he hired the housekeeper and continues:

“ This seemed the best thing for me to do under the circumstances. It is quite evident that we cannot live together and me keep well, for the fear all the time of coming into the house only to be abused has got to working on my mind so that I feel all the time when I am in as though I was over a ■powder magazine, and so, after coming home after the worry of the ten hours, when I ought to feel easy and rest, I am worried much more so than at the works, and I am not going to get well in this way. Now, it is quite evident that you are firmly convinced in your own mind that I am entirely to blame and that I am thoroughly bad — bad all through; and a man who is so bad •cannot be well. As I know that I am not bad, and as I know that no one else says I am bad but you, there is and always will be trouble between us, for as you told me that nothing could convince you that all you said about me was not so, is it not better for us to live apart? Of course you have a perfect right to this as your home; and if you see fit to make it warm for me, as you told me you would, then I must get out. But you know that I am to get the living for the three of “us, and. if I am driven to the wall and give out entirely, then perhaps we will all suffer; and as this is where the business is that gives me the living, here I must stay. * * * Unless I am mistaken this woman can run the house and keep it in good order, and I can live peaceably if not happy. If you decide to come back after you get your visit, then I can send her back and I can pull out, for I am satisfied you will never treat me any different. -* * * I shall pay you the money, no difference where you are.”

In the last of the letters written during this period, under the date of July 2d, he says:

“ I do not expect to be happy. * * * It is not possible for you to feel this change in our lives more keenly than I do, and if I was to be granted but one wish it might be that we might come together again and be happy.”

I think it must be admitted that these letters point much more strongly to a resolution on the part of Mr. Gates to separate himself from his wife than they do to a resolution on her part to stay away from him. Taking the letters in connection with the testimony heretofore adverted to, we may at least conclude as follows:

First That the parties had lived together unhappily for several years and that this condition of affairs was almost wholly due to the disagreeable temper and unfounded suspicions of the wife.

Second. That in May, 1893, Mr. Gates was a sick man : — so weak and nervous that he could no longer stand his wife’s complaints, — and that in consequence he sought refuge for ten days at the house of an employe of the works, Mr. White.

Third. That this action on his part was highly offensive to-his wife, who then made up her mind to go to the house of her brother in the Avest and make an indefinite stay there, but that, not finding things as pleasant there as she had anticipated, she-went first to JamestoAvn and then to Springfield.

Fourth. That, having communicated her resolve to go away,, to her husband, it was agreed between them that their differences were such that they could no. longer live together, and that, in consequence, Mr. Gates promised to give his wife, wherever she might determine to live, a fixed allowance.

Fifth. That during the months of June and July, 1893, Mr. Gates’ mental attitude Avas that of a man who did not greatly desire a permanent separation, but who had come to the conclusion that it was inevitable.

Of course, if these conclusions are warranted by the evidence no ground for divorce is shown. It is a case of agreement to-live separate and not a case of desertion.

The question then is whether the position of the parties underAvent a change and whether Mr. Gates subsequently sought to-effect a renewal of marital relations, a renewal which Mrs. Gates-obstinately declined.

■As bearing upon this question, I think the evidence pretty clearly shows that Mr. Gates Avas much attached to his wife, Avhile, on the other hand, it indicated, perhaps no less clearly, that Mrs. Gates Avas devoid of real regard for her husband.. Considering the circumstances which preceded and gave rise to-the parting, it is surprising to find how kindly the general tenor of Mr. Gates’ letters is. It is quite apparent that had Mrs. Gates made any real advances toward a reunion or given her husband any reason to suppose that she would treat him differently, he would have welcomed her home. In the last of the letters, from which I have already quoted (that of July 2d,. 1893), he says:

If you could treat me as well as you always do strangers and wanted to live happy with me and drop this senseless jealousy, there would be nothing in the-way and no [thought] of you or me wanting another place.”

And again :

“ It is not possible for' you to feel this change in our lives more keenly than I do, and if I was to be granted but one wish, it might be that we might come-together again and be happy.”

There is nothing either in the letters that he afterwards wrote- or in his subsequent conduct toward her that indicate any change-in these feelings. It is hardly supposable that her husband, after manifesting his good will toward her by taking her to-Fortress Monroe, in September, 1893, would have refused to-receive her had she gone to his home. She did not do so. On the contrary, after returning to Edgewater, she appears to have found pleasure in insulting and humiliating him. There is no-decisive proof that Mr. Gates asked her to return to him on the Fortress Monroe trip. It is merely his statement against hers.. But there is satisfactory evidence that on at least two occasions, while she was boarding at Mrs. Polbemus’, he did ask her. We have, first, his own evidence that after seeing her he arranged that his sister, Mrs. Davidson, who was, without reason, so fiaras I can see, obnoxious to her, should go away in order that Mrs. Gates might return. In this he is corroborated by Mrs. Davidson, who says that she twice packed up her tilings for that reason; and by Mrs. Polhemus, a witness called for thedefence, who says that in the following winter (the winter of 1893-94) Mr. Gates fold her she would have to give up the house, as he expected to go to housekeeping with Mrs. Gates,. and that Mrs. Gates came in one afternoon apparently quite ■downhearted, and told her that she had had some words with Mr. Gates on the boat, and that for that reason they were not going to live together, that she had put her foot in it again.” This occurred before May 3d, 1894, for, in a letter of that date, Mr. Gates writes to his wife: I have not forgotten the unprovoked abusing you gave me, coming up on the boat, just at a time when I was planning to live with you again.”

I think that, from the time of this refusal, Mrs. Gates did obstinately desert her husband, and that such desertion continued ■for more than two years thereafter. This further appears by her declarations, her conduct and even from some unguarded ■expressions in her own testimony.

First, her declarations. She told Catherine Sullivan that she would never go home again. She told Peter Peterson that “ she would not live with that old devil any more.” On cross-examination, she says: “I might have said that I would not live with the old duffer any longer; I don’t say that I didn’t say it; I didn’t mean it.”

Her conduct is more significant than her declarations. In ¡September, 1894, as Mrs. Taylor was coming out of church she went up to her, although Mr. Gates and Mrs. Taylor were not •even acquaintances, called her a black-eyed b- and accused her of living with her husband. Mrs. Davidson, Mr. Gates’ ■sister, testifies that Mrs. Gates seldom passed her in the street without saying' something insulting to her. Mr. Gates says, speaking of this period, that she abused him on the highways .and on the ferryboat publicly, and that on one occasion she pushed him off his bicycle, in the city of New York, accusing him before a crowd of having clandestine meetings with another woman, Mrs. Gates admits having hit him either on or just after he left the ferryboat and thrown him off his bicycle. Perhaps she gave the most characteristic exhibition of her disposition when she broke the window of the house to which Mr. Gates and his sister had returned in October, 1895. This happened shortly prior to March 3d, 1896.' This is Mrs. Gates’ account of what happened :

“ I was going along the street and Mr. Gates was coming up from the works, and I said to myself, ‘ Well, now, I have a good mind to go in there and just go around the house and sit down and have my dinner and just demand my rights as his wife in that house.’ ”

I stop here to observe that Mrs. Gates says on cross-examination that she had, shortly before, consulted a lawyer, but she does not say that he had advised this course of proceeding, and she does not pretend that either the lawyer, if she had really consulted any, or that she herself had written previously, requesting that her husband restore her to her proper place or that she had in any way whatever signified to him her desire or willingness to return. Mr. Gates says that the first thing that he heard her say on this occasion was that she was going to get in and throw “that thing,” meaning his sister, out. I will let Mrs. Gates describe what followed in her own words:

“ I went around to the back door and tried to get in the back door, but Mr. Gates stood with his back against it and his sister stood with her back against the door, and I shoved the door and pushed it and tried to open it, but they would not let me in; and as I looked through the window she shook her head at mq. I went back to the door and kept pushing it for a long time.- I said I would go in, and Mr. Gates called out to me to stop pushing the door. Then I heard him say to his'sister, ‘Siss, you had better open the door or else she will push it in.’ But she would not open the door. She stood just there and held it, and he stood there too. Then I went to the kitchen window and looked in and saw her there, and I picked up a little basket of some kind with some kind of moss in it and hit the window-sash with it and cracked it, and she was in the kitchen at the time.”

Both Mrs. Davidson and the servant say that the object that she threw was a box, and it was thrown with so much violence that, breaking the kitchen window, it went through it with force enough to strike the door leading into the hall. Mrs. Davidson says it would have hit her had she not got out of the way. Finally some one went for Mr. Gates’ son, who was the village marshal, and he took her away.

Now, this performance, when contrasted with the conduct of Mr. Gates, all through this trying period, seems all the more extraordinary. It would be hard to believe that he could have noted towards her with the kindness and forbearance with which he testifies that he did if he were not fully corroborated by the •evidence of Mrs. Gates. He made her a regular allowance of $40 a month; he provided her with fuel and a newspaper; he took her out riding and visited her when she was sick. He says he did this

“for the sake of keeping peace; to let her see that it was my desire to make it pleasant for her and help her; * * * that it was my desire to get her to come back if she would do it ”

During all this time Mrs. Gates does not allege a single tangible act of harshness or want of consideration on her husband’s part. The one idea that seemed to possess and dominate her was that Mr. Gates was unfaithful, although so far as the evidence shows this was the purest illusion. Penetrated with this idea, she did not hesitate to employ a detective to watch him (who could not, however, get the least evidence of any act of misconduct), and to invade the home of one of the employes of the oil works and there accuse an innocent girl of having a child by him.

Her jealousy appears to have extended to the servants in the house and even to Mr. Gates’ own sister. Although Mrs. Gates lived either next door or in the neighborhood for five years after Mrs. Davidson came there, she did not once call upon her. On the other hand, she openly abused her on the streets without the least reason. She does not pretend that she had any other grievance against her than that she was living with her brother.

This brings me to a significant admission made by Mrs. Gates, on her cross-examination. Being asked—

“Didn’t slie [i. a., Mrs. Sullivan, who had testified in reference to her admissions] tell you that you had a lovely and comfortable home, and you ought to go back to it?”

She replied :

“No, sir; she has often said that I would [should] go back and live with Mr. Gates. I said, lloví can I Uve with him? he is living with his sister.”

Now, Mr. Gates might, as a matter of law, have insisted that his sister, who was dependent upon him for support, should be allowed to live with him. But he did not. On the contrary, he was willing to support this sister elsewhere if she constituted the obstacle to Mrs. Gates’ return. I have already shown that on two occasions, while Mrs. Gates w'as boarding with Mrs. Polhemus, in the fall of 1893 and the winter of 1894, Mrs. Davidson had made ready to go, and that then Mrs. Gates refused to return, after having first agreed to do so.

I think the following conclusions, in reference to the period subsequent to the Fortress Monroe trip, are warranted by the foregoing evidence:

First. That Mr. Gates w'as fond of his wife and desired her return.

Second. That Mrs. Gates was indifferent to him and quite willing to live apart from him.

Third. That Mr. Gates made proper efforts to bring her back, and actually induced her to agree to live with him again.

Fourth. That this agreement was broken by Mrs. Gates, without fault on the part of Mr. Gates and without his consent.

There are obvious reasons why Mrs. Gates, looking at the matter from her standpoint, should have preferred to live separate. Her two sons, who were her only children, were old enough to support themselves, one being seventeen or eighteen and the other twenty-seven. She was receiving a regular allowance from her husband. She was more independent — more free from household cares. As she was without affection for her husband and firmly convinced of his unfaithfulness, she could not have desired his companionship.

It is said that Mr. Gates wrote two letters to his wife — one on May 3d, 1894, and one of uncertain date — which are inconsistent with the theory that his wife remained away against his will. They require careful consideration. The letter of May 3d (which is, however, imperfect) contains the following passage :

“In conclusion I wish to say I cannot call upon you for the reason that I am entirely through listening to the disagreeable things you say to me when we meet. I have not forgotten the unprovoked abusing you gave mé coming up on the boat just at a time when I was planning to live with you again. I have submitted to your tyranny for a good many years, until I am almost worn out, and I do not feel as though I had any manhood left. . Now that I have out' loose to save myself, and am providing for you, it seems as though you might cease troubling me. In looking after my health and business, I seem to have all that I wish to attend to.”

Ifc is said that this is the language of one who consents to a separation, and not of one against whose will it is continuing.

The statute declares that the desertion must be willful, continued and obstinate. The desertion is the act of the deserter, and the obstinacy entering into the act must necessarily be the deserter’s obstinacy. It is, strictly speaking, incorrect to appeal in the first instance, as appears to have been done in some of the cases, to the mind of the party deserted. As was said in Van Wart v. Van Wart, 12 Dick. Ch. Rep. 598, that desertion is to be characterized as obstinate which is persisted in by the deserter against the effort or influence of the deserted party to bring it to an end. If the deserted party, being a husband, makes a proper effort — makes, in the language of the cases, such advances and concessions as a just man ought to make — to terminate the-desertion, and those advances are obstinately resisted, and so prove unavailing, then the mental attitude of the deserted party, which can hardly fail in some measure to be affected by the refusals of the deserting party, is a matter of no consequence-unless it shows itself in action or in conduct from which a fresh consent may be implied.

In this ease, as I have found, the original separation was consented to by both parties. As long as so consented to there was-no desertion. But as soon as Mr. Gates made a proper effort to induce his wife to return — an effort which she obstinately resisted by refusing to do as she had agreed — then I think she-became a deserter, and it lay upon her to show affirmatively a further or renewed consent to live apart. The evidence is that after his first effort had proved futile he made a second. In doing so and in treating her as I have shown that he treated her, I think he made all the effort and concession which, under the circumstances, could reasonably have been required. The statement iu his letter, “ Now that I have cut loose to save myself and am providing for you,” does not, iu the light of the evidence heretofore adverted to, show a fresh consent to live apart. It is the statement of something that, as I have shown, had actually occurred. He did “ cut loose from ” his wife when he went to Williamsport and she went west. The difficulty arises out of his statement of the severance as a continuing severance— “T have cut loose.” ' But a perusal of Mr. Gates’ letters will show that accuracy of expression is not one of their characteristics. The statement in question is not the statement of a fact contradicting or negativing the facts already mentioned. It is rather the statement of Mr. Gates’ view of his acts taken as a whole — a view somewhat erroneous if the other evidence is to be believed. While the admission is undoubtedly evidence for the defendant, it is not, I think, sufficient to outweigh the considerable body of evidence on the other side. There is nothing in the expression and nothing in his conduct which indicates that he had again agreed or consented to live separate or that he would not have received her back if she had been willing to go back.

The other letter is “Exhibit D8.” This was put in as one letter, but Mr. Gates testifies, and an inspection shows, that pages 5 and 7 were not written at the same time the first page was written. The first page is dated December 25th, 1895. If pages 5 and 7 were written after May 3d, 1896, then what he wrote would make no difference, for two years of continuous desertion had elapsed. He first testified that he wrote the letter of which they formed part after he wrote the letter of December 25th, but he could not fix any date, and Mrs. Gates does not fix any. As she was endeavoring to prove by Mr. Gates’ letter, produced from her custody, that the desertion did not continue for the requisite period, the burden was upon her to show w'hen it was written. On his cross-examination he says he thinks he was mistaken; that the letter was written “ while Mrs. Gates was away after first leaving.” It would then have been written some time in July, 1893. He finally says that he has no recollection whatever about the date. The importance of the letter hinges on its date in connection with the following paragraph:

“ I may say, in starting, that the proposition you make would be very pleasant to me indeed if it could be carried out to the satisfaction of both of us, but it is. an impossibility for you to change your way of treating me, and the reason is very simple — you have no confidence in me. * * * Therefore, the question of again living together again, however much I may desire it, seems to me to be out of the question for the present.”

From some expressions contained in the part of this letter which is produced, I should doubt whether it was written in July, 1893. It might possibly have been written shortly before they agreed to live together again, or it might have been written long after. Mr. Gates says that the proposition here alluded to, which his wife made to him, was that he should turn his sister out. This was a proposition that he was not bound to accept. Not only are the five first pages of this letter missing, but page 6, which seems to have contained matter that would have enabled us to fix its date with some exactness, is also gone. The letter is of little or no significance as evidence unless it be proved to have been written at a certain period, and this proof is altogether wanting.

The fact that the husband supported his wife is no bar to a decree in his favor. Sergent v. Sergent, 6 Stew. Eq. 204; S. C. on appeal, 9 Stew. Eq. 644; Bish. Mar. & D. 1, §-805 a. In the Bergent Case, as will be seen by a perusal of the vice-chancellor’s opinion, the wife gave the husband a continuous support after he left her, and this did not, in the judgment of the court of appeals, constitute a valid objection to a decree in her favor.

On the whole, I have come to the conclusion, but not without difficulty, that Mr. Gates is entitled to a decree.


source: Caselaw Access Project

license: Public Domain

text:
    Nicholas Toppin v. John Moriarty et al.
    [Filed October 23d, 1899.]
    1. There is no property right in a dead body.
    2. A husband is charged with the duty of burying his wife, either in his character of administrator, if he sustain that character, or in his character of husband. After he has buried her,'the body is in the custody of the law, and not in his custody.
    3. Anyone seeking to remove a body once buried is subject to the jurisdiction of a court of equity, which, in this matter, is, in this country, the successor of the ecclesiastical courts.
    4. Where a husband consented to his wife’s request that she be buried in the ■same burial plot as her parents, and after she was accordingly buried in a plot intended for them, and her parents exchanged it for another in the same cemetery, where a suitable place was prepared for her remains at great expense, her husband, who knew of the exchange and the preparations, and made no •objection to the removal until the preparations were complete, is precluded .from interfering therewith.
    On final hearing.

      Mr. John F. Marion and Mr. Washington B. Williams, for The complainant.

      Mr. Charles B. Hughes, for the defendants.
   Stevens, V. C.

The complainant seeks by injunction to restrain the defendant "Moriarty from interfering with the removal of the remains o.f his daughter, Margaret, from one plot to another in the Eoman Catholic Cemetery of the Holy Name.

The deceased was the wife of the defendant Moriarty. She died on January 10th, 1896, having been married to him about ¿five years. She left no will, and in September, 1896, her husband took out letters of administration on her estate. On her deathbed she expressed a wish to be buried in the same plot with her father and mother. To carry out this wish her father purchased, on the day before her funeral, for the sum of $660, the plot in which she now lies. She was buried there with the concurrence of her husband. Very shortly after the burial, her mother being dissatisfied with the situation of the plot, a new plot was obtained by exchange. The new plot was surrounded by a stone coping, and a statue of the Virgin and her child was placed within it at a cost of $2,800. The work was completed in November, 1896, and the complainant, having procured from the board of health a permit to remove the body,. was about to disinter it, when the cemetery authorities were notified by Mr. Moriarty, who had quarreled with his wife’s relatives after her death, that he objected. They thereupon refused to allow the removal to be made. This bill is filed against Moriarty and Bishop Wigger, in whom the title of the-cemetery'land is vested, to restrain them from interfering with the removal.

The bishop answers and avers his willingness to conform to any order that the court may make, and the controversy is, therefore, only between Toppin and Moriarty. Mr. Moriarty’s insistment is that, inasmuch as his wife’s body must be taken from its present resting-place in any event, its disposition belongs to him both as husband and administrator. The complainant’s insistment is that he should be permitted to remove - it to the new plot both because of his daughter’s dying request and because Moriarty, by conduct to which I shall hereafter advert, is estopped from exercising his prior right, if he had any, to designate her last resting-place.

As the controversy is an unusual one, it will be useful instate at some length the legal rules applicable to the subject.

By the common law there is .no property in a dead body (Regina v. Sharpe, Dears. & B. 160; 40 Eng. L. & Eq. 581), and the corpse cannot be the subject of larceny (Regina v. Handyside, 2 East P. C. 652), although its unauthorized removal is "a misdemeanor. Regina v. Sharpe, supra. The executors-ordinarily have a right to its custody and possession until it is properly buried. Regina v. Fox, 2 Ad. & E. (N. S.) 246; Lit. Burial 1. A husband is liable for the necessary expenses of the decent interment, even though he be separated from his wife and although she be buried without his knowledge or request. Ambrose v. Kerrison, 10 C. B. 776; Bradshaw v. Beard, 12 C. B. (N. S.) 344. A parent was, by the law of England, bound to provide Christian burial — that is, burial in consecrated ground with the services of the church — for his child if he had the means. Regina v. Vann, 2 Den. C. C. 325; 15 Jur. 1090. A householder, even, in whose house a poor person died was (if no other person undertook the duty) bound to inter the body decently. And a stranger might enforce payment of the expense of burial out of the effects of the deceased and was not liable as executor de son tort. Tugwell v. Heyman, 3 Campb. 298 (n). “ The right of the parishioner to burial,” said Lord Stowell in Gilbert v. Buzzard, 3 Phil. 350, “ strictly taken, is to be returned to his parent earth for dissolution and to be carried there for that purpose in a decent and inoffensive manner.” In his 3 Inst: 203 Lord Coke says :

In every sepulchre that hath a monument two things are to he considered, -viz., the monument and the sepulchre or burial of the dead. The burial of the cadaver — that is, caro data vermis — is nullius in bonis and belongs to ecclesiastical cognizance, but as to the monument, action is given, as hath been said, at the common law for the defacing thereof.”

And in Foster v. Dodd, 8 Best & S. 854, Mr. Justice Byles said: “A dead body, by law, belongs to no one and is therefore under the protection of the public. If it lies in consecrated ground the ecclesiastical law will interpose for its protection, but whether in ground consecrated or u neon secrated, indignities offered to human remains in improperly or indecently disinterring them are the ground of an indictment.”

In England, a‘ body once buried could only be removed by ■order of the coroner for the purposes of an inquisition, or by a faculty (special dispensation) granted by the ordinary in his consistory court, or by license of one of the secretaries of state. Lit. Burial. The granting or revocation of such a faculty is a judicial proceeding. In re Pope, 5 Eng. L. & Eq. 585; Vestry of St. Pancras v. Vicar and Church Wardens of Parish of St. Martin in the Field, 6 Jur. (N. S.) 540. As in this country,, where there is no ecclesiastical jurisdiction, “the remedy,” says-Judge Story in Kurtz v. Beatty, 2 Pet. 566, “must be sought, if at all, in the protecting power of a court of chancery, operating by injunction to preserve the repose of the ashes of the-dead and the religious susceptibilities of the living.” Accordingly, it has been uniformly held, in this country, that wherequestious involving the care and custody of a dead body arise, the litigation is necessarily in equity.

With these preliminary observations, I now come to the-question at issue. Has the husband such a right to his wife’s-remains or to their custody, that he can prevent the complainant-from re-interring them in the plot which has been prepared for them ? That he has no property-right in them is manifest from.the foregoing cases which declare that there can be no property in a dead body. Has he, then, a right to their custody? A right to the exclusive possession of a material thing, such as a-dead body is, for 'an indefinite period would be, necessarily, a property-right, and so, I think, it may be safely asserted that the husband has no such right. What, then, is his right? It is said in Weld v. Walker, 130 Mass. 422, that because the husband’s relationship to his wife is nearer than that of the next of kin, and because he is charged with the duty of burying his-wife, it is his right to determine the place of her burial; although it is cautiously added, “ it may be that the right of the husband is not an absolute right. If he should act in wanton disregard of the rights of the other relatives or to the feelings of the community, perhaps a court of equity would not aid him.” Accordingly, it has been held in a number of cases that where the body is once buried in a suitable place, the surviving husband or wife-is not, in general, at liberty to remove it against the wishes of the relatives in whose vault or burial-place it lias been interred.Wynkoop v. Wynhoop, 42 Pa. St. 293; Pierce v. Proprietors of Swan Point Cemetery, 10 R. I. 227; Guthrie v. Weaver, 1 Mo. App. 136; Secord v. Secord, 18 Abb. N. C. 78; Peters v. Peters, 16 Stew. Eq. 140.

If, in the case at bar, the wife’s body had, with the husband’s consent, been interred in the lot in which it now lies, and her father and mother had not exchanged this lot for another, it is entirely clear that he could not have removed it. The peculiarity of the case consists in this, viz., that by reason of the action of the wife’s parents it has become necessary to take it up and rebury it.

An examination of the authorities convinces me that what we are really dealing with in cases of this sort is a question of duty rather than of right, strictly so called. In his character of administrator, if he sustain that character, the husband is by the law of the land charged with the duty of burial just as an executor is; and in his character of husband, he, first of all, because he is nearest to her, is, by the law of nature, charged with the same duty. As incidental to this duty and in order that it may be properly performed, he is entrusted with the custody of the body'until it is finally deposited in its permanent resting-place. In England the duty, at least in former centuries, would have been discharged by seeing that his wife’s remains were deposited in the church or church-yard of the parish in which she had lived. Once buried there, he had no more right of control over them than the merest stranger. Neither husband nor relatives could have disinterred the body without obtaining a faculty from the ordinary. Not even the parson, in whom the freehold was vested, could have authorized a removal. It was an indictable offence for a child even, to remove the body of a parent from its place of interment. Judge Earl says, in Regina v. Sharpe, 40 Eng. L. & Eq. 582: “There is no authority for saying that relationship will justify the taking of a corpse away from the grave where it had been buried.” Nothing short of a faculty granted by the ordinary in his judicial capacity would have sufficed, and this faculty would have been conceded, not on the idea of right in the applicant, but of discretion in the ordinary, called into exercise by some reason of family sentiment or public convenience. Rector of St. Michael Bassishaw v. Par ishioners, Pro. Div. 233, 244 (1893); Vicar of St. Botolph v. Parishioners, Pro. Div. 161 (1892); In re Kerr, Pro. Div. 284 (1894).

The status of the present case is this: The title to the cemetery is vested in Bishop Wigger. The certificate received by the so-called lotowner is merely that T. has paid $-

“for one plot [describing it] in the cemetery of the Holy Name, to be used for burial purposes only, subject to the' regulations of the cemetery and the rules of the Catholic Church in this diocese.”

This certificate is signed not by the bishop but by the secretary of the cemetery. The legal situation then is that the bishop holds the land in trust for the holders of certificates, for burial purposes, just as the parson in England held the freehold of the church-yard upon a similar (though somewhat broader) trust. “The fee of a church or church-yard,” says the chancellor of the consistory court of London, in Vicar of St. Botolph v. Parishioners, Pro. Div. 167 (1892), “ is by law in perpetual abeyance, whilst the freehold of the chancel is vested in the rector and of the church and church-yard in the incumbent, but in both cases for the use of the parishioners. The final control of the church and chancel and of the church-yard is vested in the chancellor, as ordinary, for this purpose.” The use is a charitable use. Newark v. Stockton, 17 Stew. Eq. 180. Bishop Wigger submits himself to the judgment of this court. When his authorized agent canceled the first certificate and issued a new one he necessarily agreed that the body interred in the plot first purchased should be removed to the new plot.

Is the husband in a position to prevent the removal ? If I am right in the view I have taken, namely, that he is not vested with a right but charged with a duty, it is apparent that in designating his wife’s father’s plot as the final resting-place of her remains and in seeing that she was interred there, he did what would ordinarily amount to a complete performance of that duty. If, in consequence of the new situation, a new duty has arisen, he is, in.the performance of it, subject to the controlling power of this court as the successor of the ecclesiastical court. If nothing else appeared than that, for some reason or other, it was necessary to remove the body, then he, as husband and administrator, would, a controversy arising, be permitted to select another resting-place. But there are two additional facts in the case at bar, which, it seems to me, make it the duty of the husband to allow his wife’s body to be buried in the lot prepared for it. These facts are, first, his wife’s request that she should be buried with her family and his assent thereto after her death ; second, his conduct in assenting to the exchange of the lots and in allowing the work upon the new plot to proceed without objection, at great expense to the complainant.

First, as to his wife’s verbal request. If the husband had a legal right to his wife’s remains I cannot conceive how her verbal request could have any effect.. In Williams v. Williams, 20 Ch. Div. 659, the court refused to give effect even to a testamentary direction relating to the disposition of testator’s body. In many of the cases before cited, howrever, requests of this character have been allowed weight. This could only have been on the theory that they bore upon the question of duty. In re Kerr, Pro. Div. 285 (1894), is a strong case of this kind. The deceased had expressed a wish that his body should be cremated, and application was'made to the judge of the consistory court for a faculty to permit the remains, after cremation — a practice then entirely novel — to be placed in a niche of the wall of the Church of St. Saviours, in a sealed urn. Permission to put the urn in the wall whs refused, but leave was granted to put it in consecrated ground under the floor. The judge said: “The court would not have been prepared to grant the faculty had not Mr. Kerr, as deposed to by his widow, expressed during his life his wish that his body, after his death, should be cremated.”

How, in the case at bar, we have not only proof of the wife’s request, but of the husband’s assent to it. Her request was not that she should be buried in any particular plot, but in the plot in which her father and mother would be buried. It is perfectly plain, on the evidence, that it was a matter of perfect indifference to Mr. Moriarty, when the first plot was purchased, whether that particular plot was selected or some other. If the plot subsequently acquired had then been brought to the attention of the parties, it would have been equally satisfactory to* him. It was only because he subsequently quarreled with Mrs. Toppin, and, as he told Mr. Kelley, wished to put her to all the-trouble he possibly could before he would allow her to remove-the body, that he interfered to prevent the removal. I do not think that Mr. Moriarty was, in good faith, trying to perform a duty when he interfered. The substance of his consent was-that his wife should repose by the side of her parents, and he. gives no good reason for now withdrawing it.

In the second place, it is shown not only that he thus consented, but that he knew of the exchange of the lots and of the work that was being done on the second lot, and that he made-no objection until that work was completed. It is said by complainant’s witnesses that he approved of the exchange. This-he denies, but he admits that'Kelley, the contractor, told him that they were going to put up the monument on the new lot. and have his wife’s body removed there and he testifies that he did not then object, because the contractor, whom he had himself introduced to Mr. Toppin, begged him not to say anything about it, as it might interfere with his work under the-contract. ■ >

That the new plot is a suitable place in which to bury the body, is not and cannot be questioned. It is one of the best in-the cemetery. The complainant has in his bill offered to allow the defendant to repose beside his wife. The defendant has as yet acquired no plot in which to inter it. It seems, therefore,, quite plain that the defendant’s duty now requires him to allow his wife’s body to be taken to the place provided for it.

The complainant is entitled to an injunction.


text:
    John B. Walsh v. Carlo Rosso.
    [Filed November 23d, 1899.]
    A receiver appointed in supplementary proceedings can maintain a bill to-charge land belonging to the judgment debtor’s wife with the amount of the-judgment, where the wife purchased subject to a mortgage and the mortgage was paid off in part by the husband out of the proceeds of goods sold by him, and for which the judgment was rendered, and the judgment is less than the payments made by the husband, as such suit is one for the recovery of personalty and not of land.
    On final hearing.

      Mr. Leon Abhett, for the complainant.

      Mr. John JS. Meeker, for the defendant.
   Stevens, V. C.

On December 4th, 1897, Angela Franchi recovered a judgment in the supreme court, against Carlo Rosso, for $502.15, on a running account extending back several years. On March 3d,. 1898, the complainant was appointed receiver of the property of Rosso, in supplementary proceedings, and on March 19th,. 1898, he began the present suit against Carlo Rosso, his wife,. Marietta, and the Standard Building and Loan Association. The facts, as shown by the evidence, are as follows:

On October 25th, 1893, Marietta Rosso purchased a saloon-property for the consideration of $6,000. The consideration was made up, first, of a mortgage of $3,800 held by the Standard Building and Loan Association ; second, of a cash.payment of $700 made by Mrs. Rosso out of her own moneys; and third,, of a mortgage to the vendors. After purchasing, Carlo Rossocarried on the business of keeping a saloon, in his own name. Each month the sum of $40 was taken from the business, and ■payments of principal and interest made thereout on the mortgage of the association. The amount of principal thus paid was $1,353.75. The claim is that, in some form, the receiver is entitled to recover out of the mortgage property so much of this money as may be necessary to pay the claim of the judgment •creditor. The evidence shows that a part of the money paid •came out of the proceeds of the sale of the liquor furnished by him.

It was urged that theré was an agreement between husband and wife, by which the wife was to receive $40 a month for her services in attending to her household duties, looking after the ■saloon in her husband’s absence and by way of rent for.the saloon. Mr. and Mrs. Rosso stated this agreement in so many •different ways that it is quite impossible to believe that there really was any other definite understanding between them than that the money to pay the principal and interest of the building .association mortgage was to be paid out of the profits of the -saloon business. It is very plain that this money was-the husband’s and not the wife’s.

The only debatable question is whether the complainant is the proper person to bring this suit. It has been held that a receiver appointed in supplementary proceedings may sue in equity to recover personal property (Miller v. Mackenzie, 2 Stew. Eq. 291), and may not sue to recover land (Higgins v. Gillesheiner, 11 C. E. Gr. 308; Semon v. Terhune, 13 Stew. Eq. 565; Boid v. Dean, 3 Dick. Ch. Rep. 193). The question is, Is the receiver here trying to recover realty or personalty ?” On demurrer to the bill filed in this case, which is somewhat loosely framed, Vice-Chancellor Pitney held that the receiver was seeking to reach personalty. I think that the evidence supports his ruling.

To solve the question we must ascertain with precision just what the receiver is suing for.

It is conceded that Mrs. Rosso bought the property with her ■own money. She therefore became sole owner of it. She bought it, however, subject to the mortgage. Her husband, out of the •profits of a business which belonged exclusively to him, gave her the money to pay off a considerable part of this mortgage. And so the payments were, in substance, gifts from him to his-wife. While these gifts were legal as between the parties, they were fraudulent and void as to Franchi, who was his creditor at the time they were made. What the receiver claims, then, is-that this money which has thus fraudulently gone into the property of the wife shall, to the extent of the complainant’s judgment, be charged thereon.

If this be the'true view of the matter the receiver is not pursuing land, as he would be if he were claiming that the husband had made a fraudulent conveyance of realty that had. originally belonged to him, or as he would be if he were claiming that the husband’s money had, in the first instance, paid for land taken in the name of some other person who held in trust-for him. What he seeks to recover is money, and all that he asks-is that, having traced that money into land, he shall be permitted to sell it in order to make the money out of it. If the receiver were following a mortgage which the husband had held on his-wife’s property and which he had conveyed in fraud of creditors, the claim would not be substantially different. The mortgage lien recovered would only differ from the lien fastened upon the land by the decree of this court, in the circumstance-that the one was created by the parties and the other by the-judgment of the law. The remedy, viz., a sale of the land to-satisfy the debt, would in both cases be similar. It seems tome, therefore, that a demand of this character is not realty but personalty, and is recoverable by a receiver in supplementary proceedings.

Franchi’s judgment is much less than the amount of principal paid on the wife’s mortgage out of the husband’s money. The decree will therefore be that unless the wife pay the judgment with interest within sixty days the property will be sold' to satisfy it.

To avoid misapprehension I may say that, as I view the-matter, the complainant is not subrogated to the right of the association and does not stand upon an equality with it. His-lien is a distinct and subsequent lien, resting for support upon--the grounds that I have mentioned.


text:
    Charles S. Colton v. Chauncey M. Depew et al.
    [Filed November 6th, 1899.]
    ' D. gave his bond and mortgage to N. and then conveyed the estate mortgaged. D. was subsequently discharged in bankruptcy and the liability on the bond became thereby extinguished. The alienee continued thereafter to pay interest on the mortgage, and the last payment was made nineteen years before the suit to foreclose was begun. The suit was begun more than twenty years after the principal had become payable. — Held, (1) that the payments were necessarily referable to the mortgage, and that being so referable they were an acknowledgment that the mortgagor or his grantee held under or by permission of the mortgagee; (2) that the possession only became adverse when such payments ceased; (3) that as the right to bring ejectment continued for twenty years from the time of the last payment, so the right to foreclose continued for the same period.
    On final hearing.

      Mr. W. Randolph Parmly, Mr. Charles L. Carriole and Mr. Charles L. Corbin, for the complainant.

      Mr. James B. Vredenburgh, for the defendants.
   Stevens, V. C.

This is a suit brought to foreclose a. mortgage. The statute of limitations is set up as a bar to recovery. The facts are these: On January 3d, 1863, Nathaniel Dole mortgaged land in Weehawken to William W. Niles to secure his bond of $17,000. The principal sum was payable with interest on January 3d,. 1864. Niles, by deed of assignment dated on the same day, assigned to Jane Van Horn, whose surviving executor, on September 29th, 1882, assigned to complainant. The land mortgaged was conveyed by Dole, the mortgagor, to Delacroix, who, on December 31st, 1870, conveyed to the Weehawken Ferry Company. The deed from Dole to Delacroix contained no-assumption clause and no agreement that the mortgage money should be taken as part of the consideration. Hence the ferry company was under no personal liability to pay. Crowell v. Hospital of St. Barnabas, 12 C. E. Gr. 655; Wise v. Fuller, 2 Stew. Eq. 257.

The title remained in this company until July 9th, 1884, •when it was conveyed by a master to one Simpson, who conveyed to one Symes, who conveyed to Chauncey M. Depew, the present owner. The last payment of interest was made by the Weehawken Ferry Company on December 22d, 1876. The bill was filed December 18th,. 1896.

The case is distinguishable from Blue v. Everett, 11 Dick. Ch. Rep. 455, in the circumstance that, except for a part of the years 1863 and 1864, the obligor resided in the State of New York, where he died in 1891. The eighth section of the Limitations act provides that if any person against whom there is or shall be any such cause of action as, inter alia, is mentioned in the sixth section of the act (the section referring to obligations conditioned to pay money) shall not be resident in this state when such cause of action accrues or shall remove from this state after the same shall accrue and before the time of limitation is •expired, then the time during which such person shall not reside in this state shall not be computed as part of the limited period within which such action is required to be brought.

Blue v. Everett lays down two propositions — -first, that where ■the legal remedy on both debt and mortgage has been barred by the statute and where no independent equity appears, a suit to foreclose cannot be maintained; second, “ that so long as the debt remains the right of the creditor to resort to the land for payment of the debt also continues, even though by the statute the legal right of entry is barred.”

As the case at bar comes within the second of these two propositions, the complainant would undoubtedly be entitled to recover were it not for the existence of another fact. That fact is that, on January 7th, 1868, it was adjudged by the district court of. the United States, for the southern district of New York, that Dole, the obligor,

“be forever discharged from all debts and claims, which, by the said act (the Bankruptcy act of 1867), are made provable against his estate, and which existed on the twenty-fifth day of June, 1867.”

The effect of this decree was to discharge the debt on the bond, but not to impair the mortgage.

For several years after this discharge, interest was paid by the Weehawken Ferry Company, the grantee of the land, to the assignee of the mortgage, the last payment being made December 22d, 1876. In 1871, Dole, the obligor, who was the president of the ferry company, made the following endorsement on the bond:

“In consideration of the extension of time of pay’t of this bond after its maturity, it is understood and agreed that the rate of interest from this date shall be seven per cent, per annum.
“New York, Jan’y 3, 1871. Nathaniel Dole. [Seal.]”

There can be little question but that the person who paid the' interest at this time was the Weehawken Ferry Company, and the agreement that was really intended was no doubt'that this-company would pay seven'instead of six per cent. In Whyte v. McGovern, 22 Vr. 360, Mr. Justice Depue says: “A discharge-in bankruptcy, unlike the bar of the statute of limitations, is a positive extinguishment of the debt, liability or demand to which it applies. Nothing less than an express promise to pay can renew or revive the bankrupt’s liability, and by statute the promise must be put in writing and signed by the party to be charged therewith.” Other cases to the same effect are Briggs v. Sutton, Spenc. 582, and Stewart v. Reckless, 4 Zab. 427. If we look at the stipulation in question as an independent contract, deriving no support from the prior but now extinguished obligation, it is impossible to say that it contains a promise by Dole to pay $17,000. Dole’s jiersonal obligation is therefore extinct. What, then, is tile legal situation? It is, plainly, that after the year 1868, the payments made by the ferry company are to be regarded as payments made with reference to the mortgage security and not with reference to the bond.

This brings me to the only doubtful question in the case, namely, the effect to be given to payments, referable only to the mortgage, made within twenty years before the commencement of the suit. This is not decided by Blue v. Everett. The decision in that case was expressly put upon the ground that the payments of interest were referable to the personal obligation of the mortgagor. Mr. Justice Dixon says: “At law the bar of the statute could not be obviated by payments made on account of the debt, for the mortgagor does not hold the land under the mortgagee, and the payments could not be deemed rent or in any sense the price of possession, but would be referred, solely to the personal obligation held by the obligee.” In the case in hand the payments are necessarily referable to the mortgage. There is nothing else to refer them to. But the mortgage is, in terms, a conveyance of the legal estate on condition. It is this legal estate that constitutes the only security which the mortgagee possesses outside of the bond. This is the estate in respect of which the mortgagee enters when he exercises his right of entry ; the estate which, after the maturity of the obligation, he may recover in an action of ejectment; the estate which he may convert into an unconditional estate by strict foreclosure, or which, overriding all subsequent liens and encumbrances, he may have sold in foreclosure proceedings, under the provisions of the Chancery act.

It is said, in the opinion in Blue v. Everett, that until entry the mortgagor, according to the New Jersey doctrine, continues to be the legal owner of the land for all purposes. This, in general, is true. But as between the mortgagor and mortgagee, the statement is to be taken with certain qualifications. When the mortgagee is, for example, exercising his right to enter or to bring ejectment, he can do so only by virtue of the legal estate vested in him by the mortgage conveyance. That this is well-settled law is apparent from the cases cited in the opinion. Thus, in Montgomery v. Bruere, 1 South. 260, where it was held that the widow was entitled to dower in an equity of redemption, Chief-Justice Kirkpatrick, speaking of the legal status of the mortgagor, said: “ In short, he (the mortgagor) is to be considered as tenant of the freehold for all purposes and in all relations of life, except such as concern the mortgagee.” And in Wade v. Miller, 3 Vr. 296, Chief-Justice Beasley, quoting a prior adjudication of the court of errors, says: “The mortgagor and others claiming under him are considered both in law and equity as seized and absolute owners of the premises, against all others, except the mortgagee and those claiming under him, and in equity against them also, except for the amount due.” And in Shields v. Lozear, 5 Vr. 501, Mr. Justice Depue, speaking for the court of errors, after remarking that with the modification of the rights of the mortgagee introduced by the case of Sanderson v. Den, “the nature of the mortgage as a conveyance remains as it was at common law,” says: “ In fact, the latter conclusion — that is, that the mortgage is'considered as merely ancillary to the debts — will necessarily follow whenever the mortgage is regarded not as a common-law conveyance, but as a security for the debt, the legal estate being considered as subsisting only for that purpose. In this state this is the generally-received aspect in which a mortgage is regarded as a mere security for the debt.” And this is no very modern doctrine, for Lord Hardwicke, in Casborne v. Scarfe, 1 Atk. 603, said: “ The person therefore entitled to the equity of redemption is considered as the owner of the land, and a mortgage in fee is considered as personal assets.”

Now, in view of all this, it seems plain that the legal estate will be regarded as subsisting, in so far as it may be necessary to secure the debt. I think it must be so regarded in the case of the mortgage under consideration. If the payments made after the bond became extinguished related to anything, they related to the mortgage estate. They were paid by the grantee of the mortgagor to the mortgagee only because that mortgagee still had as security for the money once due from Dole a qualified legal title to his laud. The payments made were not rent, but they were, in the most literal sense, the price of possession. The mortgagee having no personal remedy would, if those payments were not made, either eject the mortgagor or sell. It seems to me, therefore, that the language of Chancellor Kent (4- Kent Com. *156) is applicable to the present situation: “ Whatever character we may give to the mortgagor in possession by sufferance of the mortgagee, he is still a tenant. He is a tenant, however, under a peculiar relation. And he has been said to be a tenant from year to year, or at will, or at sufferance, according to the shifting circumstances of the case, and perhaps the denomination of mortgagor conveys distinctly and precisely the •qualifications which belong to his anomalous character and is the most appropriate term that can be used.”

The consequences of refusing to apply this doctrine to a case like the present would be this: The mortgagor or his alienee might pay interest up to the very day of the filing of the bill, and yet if (there being no personal liability) the statute of limitations began to run when the principal first became payable, and more than twenty years should have elapsed since it became payable, the security would be gone. So inequitable a result •could not be legally possible. In Blue v. Everett, it was, in principle, disclaimed when the court said that payments on the bond, made within sixtee.n years before suit commenced, would save the security, notwithstanding the fact that the right of entry might have accrued more than twenty years before. I think that while the mortgagor continues to make payments he must be deemed to hold by the sufferance or permission of the ■mortgagee under a tacit agreement which the mortgagee may ■determine at his pleasure.” Heath v. Pugh, 6 Q. B. Div. 359.

Special reference is made in Blue v. Everett to the right of •entry. I take it to be clear, however, that what the court intended to decide was that the bar of the statute would not ^attach to the equitable remedy of foreclosure and sale until it would attach to the legal remedy by ejectment. Entry was a species of redress by the mere act of the party injured. It was in former times of more practical value than at present. Where, for instance, the true owner had been disseized, he was, by the policy of the ancient law, prevented from conveying. A peaceable entry would terminate the disseizin and enable him to convey. 3 Bl. Com. *5, *175. The sixteenth section of our Limitations act regulates this method of redress. The other kind of redress, viz., that by suit or action in court, is regulated by section 17. A landlord or mortgagor might fail to enter on breach of condition and yet the tenant might not hold adversely; he might still hold under or by permission of the landlord or mortgagor. It is only when he begins to hold adversely that the statute begins to run so far as the action of ejectment is concerned. Foulke v. Bond, 12 Vr. 545; Van Blarcom v. Kip, 2 Dutch. 361. The question, therefore, in the present case, as in every other case involving adverse possession, is, when did the statute begin to run ? Now, it is just at this point that there is a divergence between the law of this state, as declared in Blue V. Everett, and the law of England. I cannot better illustrate the nature, of it than by quoting from the following cases: In Hall v. Doe, ex dem. Surtees, 5 Barn. & A. 687, L. mortgaged to S. in fee.- Default in the payment of principal and interest was made in 1780 and suit was commenced more than thirty years from the date of the last payment of interest. The statute of limitations was insisted upon. Chief-Justice Abbott said • “ Upon this finding I am of opinion that this must be considered as an occupation by the permission of the mortgagee, and if so there was no adverse possession and the statute of limitations does not apply. The payment of interest would have been conclusive evidence of a continuing tenancy. That fact is not found by the jury, but that is not the only ground upon which the court can proceed. If there were any circumstances from which the court might have presumed that the premises were not occupied by the permission of the mortgagee, they ought to have found that fact. Here, however, is nothing to justify us in presuming that this occupation was not by the permission of the mortgagee. The judgment, therefore, must be for the plaintiff.” In a note to Patridge v. Bere, 5 Barn. & A. 604, 7 Eng. Com. L. 204, it is said: “ In every case in which a tenancy by sufferance exists between the parties, and even where an adverse possession commences, as by the entry of the heir'oxdevisee of the mortgagor without the consent of the mortgagee, the payment of interest is a recognition of the title of the mortgagee and evidence of an agreement that the mortgagor or person deriving title from him shall hold at will and a strict tenancy at will commences.”

The .court of appeals, in Blue v. Everett, necessarily decided that the mortgagor’s possession was to be deemed adverse from the very day of the breach of the condition. They inferred this, I suppose, from the two facts of non-surrender and non-payment. Chief-Justice Abbott, in the case cited, did not think that that was the fair inference from those facts, and thought, too, that if, after the breach of the condition, interest had been paid, that would have been conclusive evidence of a continuing tenancy.” This was also denied in Blue v. Everett on the ground that payment of interest is referable to the bond and not to the mortgage, and it was held to be so referable not only in cases where the interest is paid by the mortgagor but also in cases where, as in Blue v. Everett, it is paid by the grantee of the mortgagor, who is under no personal liability to pay, and who would not have paid but for the presence of the mortgage. In view, however, of the grounds upon which the decision rests, it seems plain that where, as in the present case, the payments of interest cannot be referred to the bond but must be referred to the mortgage, the fair inference is that the mortgagor holds by permission and not adversely. I think, therefore, in accordance with the doctrine of all the cases, (1) that where the payments are properly referable to the mortgage they are an acknowledgment that the mortgagor, or his grantee, holds under or by permission of the mortgagee; (2) that the possession only becomes adverse when such payments cease; (3) that as the right to bring ejectment would continue for twenty years from the time of the last payment, so the right to foreclose continues for the same period.

As the last payment, in the present case, was made within twenty years before suit commenced, the complainant is entitled to a decree.


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    Henry N. Miller et al., executors, &c., v. Amelia K. Worrall et al.
    [Filed December 9th, 1899.]
    1. Where a testator gave his entire estate to his children, subject to a life estate in his wife, and provided that if “a sale, assignment or pledge” be made by any of his children of their interest, it should work a forfeiture of such child’s interest, a will of one of testator’s children, which took effect after his death and before the death of the life tenant, disposing of such child’s interest is not such an assignment as will work a forfeiture.
    2. The will of testator construed to vest in his children his entire estate at his death, and the executors of a child who died after the testator but before the widow (who had the income of the estate for her life), are entitled to the share of such deceased child on the widow’s death.
    On pleadings and proofs.

      Mr. James E. Howell, for the executors.

      Mr. John R. Harclin, for Elizabeth M. Peshine and others.

      Mr. Frederick F. Guild, for Amelia K. Worrall.
   Stevens, V. C.

By his will, John Jelliff gave all his property, real and personal, to his executors in trust [inter alia) to pay to his wife during her life, for the support of herself and his maiden daughters, such amounts, not exceeding the net income of his estate, as she might request. By a codicil he directed his executors, upon the death of his wife, to settle and close up his estate with all convenient speed,

“and divide the entire amount thereof equally between my children, share and share alike, to whom I do hereby give, devise and bequeath the same, their heirs and assigns forever, the children of any deceased child to have the share of his, her or their parent.”

One of the children, Caroline A. Riggs, died without leaving issue, in the lifetime of testator’s widow, who is now also dead, and the question is whether her executors are entitled to her share. The contention of these executors is that such share vested at the death of testator, and that nothing has since occurred to divest it. The contention of the surviving children is that the gift was contingent upon her surviving the widow.

The rule applicable is thus formulated by Jarman:

“The children, if any, living at the death of the testator take an immediately-vested interest in their shares, subject to the diminution of those shares (i. e., to their being divested pro tanlo as the number of objects is augmented by future births), during the life of the tenant for life, and consequently on the death of any of the children during the life of the tenant for life, their shares (if their interest therein is transmissible) devolve to their respective representatives.” % Jarm. Wills *76.

That; such a gift vests at the death of testator, has been settled in this state by the cases of Howell’s Executors v. Green, 2 Vr. 570, and Post v. Herberts Executors, 12 C. E. Gr. 542. .The ease at bar is rather stronger than either of those cases, for in the first the provision was “ after her \i. e., the life tenant’s] decease, I give and bequeath,” and in the second, the gift was found only in the direction to divide, while here, the gift is both express and immediate, “I do hereby give, devise and bequeath,” the direction to divide being superadded.

It is said, however, that the codicil must be construed in the light of all the provisions of the will, and that so construed it appears to have been testator’s intention that those children only should take who might survive the period of distribution. I can find no such intention. The argument from the clause imposing a restraint on alienation is inconclusive and cuts both ways, and the direction to divide lapsed legacies may be appropriately referred to the case of a child who dies without leaving issue, in the lifetime of testator. The only other clause bearing on the subject is the fourth, and this supports, rather than militates against, the contention of Mrs. Riggs’ executors, for it authorizes a payment to the children, of the principal of their prospective shares, not exceeding five per cent, in any one year, in the lifetime of the widow, if she consents.

It was argued that testator did not intend to divide his children into two classes, viz., those who might have issue and those who might not. I am unable to see the force of this argument. By'the express provisions of the will, if a child dies before the period of distribution and leaves children, those children take, by substitution, for the parent. In this event, and in this event only, is the right of the child curtailed. In every other event it remains. If it is not taken from those who die without leaving issue, it is because the testator has so willed. His will, as we find it expressed in testamentary form, is that the gift shall be vested, except in so far as it is expressly divested. Beatty’s Administrators v. Montgomery’s Executrix, 6 C. E. Gr. 324; Harrison v. Foreman, 5 Ves. 207; Salisbury v. Petty, 3 Ha. 86.

By the sixth clause of his will, testator provides that if “ a sale, assignment or pledge” be made by any of his children of their interest, it shall work a forfeiture thereof. It is plain that the making of a will by Mrs. Riggs, which took effect only after death, is not an “assignment” of her share within the meaning of this clause. The testator is here using technical words which, in a provision of this sort, must receive their technical meaning. “The idea of an assignment is essentially that of transfer by one existing party to another existing party.” Hight v. Sackett, 34 N. Y. 447.


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    The Congregational Church of White River Village v. Robert D. Benedict et al.
    [Filed December 15th, 1899.]
    1. A testator’s personal representatives are necessary parties to a suit to subject land to the payment of a legacy.
    2. The death of the executor does not justify a failure to make the personal representative a party, as an administrator with the will annexed may be appointed.

      3. A will bequeathing the residue of a testator’s estate, “ not expended in satisfying” a previous bequest, does not enable the previous legatee to enforce payment of his legacy from land acquired by the residuary legatee while there are personal assets applicable to the payment thereof.
    4. That an executor directed the removal of the bodies of testator’s three brothers to a distant cemetery without proof of the expense thereof is insufficient to show an insufficiency of personal assets to pay a legacy of §1,000, where the executor had §1,661 on hand after payment of funeral expenses and costs of administration.
    5. A presumption of a payment of a legacy arises after the expiration of twenty years from the time of the accrual of a right to it.
    6. In a suit by a church to enforce the payment of a legacy of §1,000 out of land twenty-eight years after testator’s death, evidence by some of the officers of the church of ignorance of the legacy held insufficient to preclude the presumption of payment arising from lapse of time.
    7. The fact that a legatee was ignorant of the existence of the legacy will not preclude the presumption of payment arising from a lapse of twenty years, as against a purchaser, where the executor had ample personal assets to pay the legacy and the purchaser did not know that the assets were not applied in the payment of the legacy.
    On final hearing on pleadings and proofs.

      Mr. Robert 3. MaOarter, for the complainant.

      Mr. James P. Powers, and Mr. Robert D. Benedict (of New York), for the defendants.
   Stevens, V. C.

The bill prays that a certain legacy conditionally given by the will of Edward W. Marsh to the complainant may be decreed to be a charge upon certain lands of the defendants in Plainfield and that these lands may be sold to satisfy the charge.

Very generally stated, the direction of the will is that the executors pay over to the proper person authorized to receive the same in the town of Hartford, Vermont, the sum of $400 in trust in perpetuity, to invest in bond and mortgage and pay the interest arising from the investment for the repair of the graves of testator, his parents and brothers, in a burying-ground situated near White Eiver Village, in Vermont. The testator then bequeaths $1,000 in trust to the complainant if it be found impracticable to invest the sum of $400 in trust as directed, “ either from illegality or any other cause.”

It was insisted on behalf of the defendants that it had not been found impracticable to invest the $400, and that, consequently, the contingency had not arisen on which alone the complainant’s legacy vested, but for the purposes of this opinion I shall assume that it had, for it appears' to me that even on that assumption the complainant cannot recover.

The will bears date August 19th, 1865. The testator died in 1868. He was, at the time of his death, a resident of Plain-field, and his will was probated in Union county, in this state, and in Kings county, New York. The account filed in New Jersey shows the receipt of $521.67, used principally to pay bills for funeral expenses and nursing. The inventory filed in New York shows personal property to the amount of $1,661.17. How this was disposed of does not appear. By the last clause of his will testator bequeathed “all the rest and residue” of his estate “not expended in satisfying the foregoing bequests” to Leonard Marsh and Daniel Marsh, his cousins. This residue appears to have consisted of a valuable plot of land in Plain-field and of land in the States of New York and Ohio.

Shortly after testator’s death, Daniel and Leonard, ignoring (so the bill charges) the fact that the- legacy to the church was charged on the lands, took possession of the Plainfield tract, surveyed it, and on February 13th, 1869, by their indenture of partition, divided it between them. On October 6th, 1871, Daniel sold and conveyed his portion to Robert D. Benedict, who still holds the same. Leonard’s portion was sold by lots for valuable consideration, at various times, to various purchasers, between 1870 and 1891. The purchasers have, in nearly every instance, resold, and several of the lots have been mortgaged. All the present owners and mortgagees, thirty-three in number, are parties defendant, and every one of them is admitted to be a bona fide purchaser for value without notice except in so far as the will of Edward W. Marsh, through which, of course, all the present owners claim, gave him notice that the legacy was, not in express words but by the legal effect of the before-quoted language contained in the residuary clause, charged upon the land. The bill does indeed allege that the various grantees of the property had notice that the legacy was unpaid, but this allegation is denied by the answer, and there is not the slightest proof of it.

The bill cannot be maintained for several reasons—

First. The complainant has not brought before the court the personal representatives of the testator. Whether the language of the will does or does not impose a charge upon the realty, it is very plain that the personalty is the primary fund for the payment of legacies and that a personal representative of. the deceased must be before the court. It is alleged in the bill that Parse, the New Jersey executor, is dead, and that Dr. Leonard Marsh, who proved the will in New York, is also dead. This only shows the necessity for the appointment of an administrator with the will annexed if no one has yet been appointed. Dodd v. Lindsley, 8 Dick. Ch. Rep. 69, 652; Dodson v. Severs, 8 Dick. Ch. Rep. 348.

Second. It is charged in the bill that by the effect of the residuary clause complainant’s legacy is chargeable on the land. This is so if there be no personal estate out of which to pay. The established rule is that personalty is the primary fund for the payment of legacies. The real estate is not chargeable until the personal estate is exhausted. In fact, the rule goes further. Johnson v. Poulson, 5 Stew. Eq. 390. There is no evidence that the personal estate is exhausted. The proof is that it amounted to $2,182.84. Of this $521.67 was used to pay funeral expenses, nursing and the cost of administration in New Jersey. What was done with the money which went to the New York executor, who was also residuary legatee, does not appear. He may have used it in whole or in part to satisfy debts of the estate or he may have taken it as residuary legatee. It does not appear that the testator died indebted. He gave no legacies except the $400 legacy and complainant’s legacy of $1,000, which was substituted for it on the contingency mentioned. He did indeed direct the removal to Hartford of the remains of two of his brothers from Greenwood cemetery and of a third,, who had resided in Wisconsin, if he could be found, but there is not the least evidence of what this cost. Of the proof it may be said, as was said in Johnson v. Poulson, that it does not establish satisfactorily the insufficiency of the personal estate to pay the legacy.

Third. But assuming that by reason of the exhaustion of the personal assets the church became entitled to have the legacy of $1,000 charged on the land, the question arises whether the complainant is not barred by lapse of time. Twenty-eight years have elapsed between the testator’s death and the filing of the bill. As courts of equity act in analogy to the statute of limitations, it is settled law that a presumption.of payment of a legacy arises after the expiration of twenty years from the time of the accrual of the right to it. Campbell v. Graham, 1 Russ. & M. 453; Magee v. Bradley, 9 Dick. Ch. Rep. 326; Blue v. Everett, 11 Dick. Ch. Rep. 455. Since the decision of the case last named, it is at least arguable that, as against one who may, like the defendants in the present case, be said to hold adversely, the presumption is conclusive. It is not necessary, however, to express an opinion on this question, as, under a less stringent rule, the complainant’s claim cannot be sustained. The only reason assigned for taking the case out of the operation of the rule is that complainant was ignorant that the gift had been made until shortly before suit commenced. Now, as against bona fide purchasers for value, so long in possession, without notice that the executors had not performed their duty, it seems to me that very satisfactory proof of ignorance should be required. The proof stands thus: Noah B. Hazen, who was treasurer in 1869; Ephraim Morris, who was clerk and treasurer from 1870 to 1882, and Horace C. Peace and Samuel E. Pingry, members of the congregation, testify that they first heard of the legacy in 1895. Edward W. Morris, who was its treasurer from 1883 to 1886, in answer to the question, when he first learned that the church was a beneficiary, said that it was four or five years ago; that he might have heard of it incidentally at the time. On cross-examination, he said that, thinking the matter over, “there is an impression on my mind that I might have heard something about it before — a sort of dim recollection.” Jonathan Buzbee said that he had been “on the committee” (by which I understand him to mean the committee of the society mentioned in Mr. Hazen’s testimony, which attended to the temporal affairs of the church), and that he had heard at the time that Mr. Marsh had willed “ so much to the cemetery and part for the church — somewhere about $1,000 for the whole.” Now, on this evidence it seems to me to be impossible to assert that it is satisfactorily proved that the complainant corporation had no notice'of the legacy. It is said that, so long a time having elapsed, it is impossible to prove ignorance more certainly. But the impossibility of obtaining satisfactory proof after a lapse of twenty years was the main reason for passing the statute, and the main reason why courts of equity act in analogy to it. Most of the gentlemen who testified as above were connected with the cemetery company which had been organized shortly before Mr. Marsh’s death, and which had, perhaps without legal authority, taken charge of the ground in which the Marsh’s family were buried. They all knew of the legacy of $400. Dr. Leonard Marsh, who lived in the same state, had entered into correspondence with them about it, with the result, as it would seem, that the cemetery company declined to accept it. Besides this, in re-interring the testator and his brothers in the burying-ground which was regarded as the church burying-ground, Dr. Marsh must have found it necessary to make one or more visits to White River Village, and to have conversed with the pastor and other members of the congregation. It is quite within the bounds of possibility that in the course of these conversations he may have spoken of the complainant’s legacy to some of its officers. The testimony of Mr. Buzby and of Mr. Edward Morris appears to indicate this. At all events, there is no satisfactory proof that he did not. I think, therefore, that ignorance not being satisfactorily made out, there is no reason shown for disregarding the bar.

Fourth. If ignorance had been clearly proved, I should still doubt whether it would avail as against persons standing in the position of defendants. These defendants are neither trustees nor volunteers, but purchasers for value. On the assumption of ignorance, the executors failed in the performance of their duty to complainant by failing to notify it of its legacy, but they equally failed in the performance of their duty to the defendants by failing to pay complainant’s legacy -when it appears beyond all controversy that they had funds to pay the same— funds derived either from the personal estate or from the proceeds of the sale of the very real estate which it is sought here to charge. If complainant was ignorant of the existence of the legacy, defendants were ignorant of its non-payment under circumstances which justified them in believing that it was or would be paid. If the ignorance of the church, therefore, should be deemed to be an equitable ground for avoiding the effect of the bar, thg ignorance of the purchasers of the land ought, at this distance of time, to be regarded as an equitable ground for maintaining it.

The bill should be dismissed.


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    The Doane & Jones Lumber Company v. The Essex Building and Land Company.
    [Argued January 15th, 1900.
    Decided January 29th 1900.
    Filed January 30th, 1900.]
    1. A motion to strike out allegations of an answer in equity on the ground that the matter set-up does not disclose any equitable defence, is a mere demurrer, and hence erroneous, under Chancery rule 213, authorizing adjudication of objections to any pleading on motion without demurrer.
    2. Under rule 213,. authorizing adjudication of objections to pleadings in equity on motion, a motion to strike out parts of answer for insufficiency cannot be sustained where the motion does not allege the particular defects objected to.

      Mr. John G. Trusdell, for the complainant.

      Mr. Fred Prout, for the defendant.
   Stevens, V. C.

The application in this case is misconceived. It is substantially a demurrer to the answer. Such a demurrer is not recognized in the books. Travers v. Ross, 1 McCart. 254. Rule 213 provides that any objections to any pleading or to any part thereof may be adjudicated upon on motion without the filing of a demurrer or exceptions, but the notice of such motion must state the particular ground or grounds of objection. By force of this rule such an application, in the case of an answer, does no more than take the place of exceptions, and is to be decided by the rules which apply in. determining whether the exceptions are well taken. Leslie v. Leslie, 4 Dick. Ch. Rep. 155. Exceptions may be taken to an answer for scandal, for impertinence or for insufficiency. The passages which it may be claimed are impertinent or scandalous, must be pointed out. Dan. Ch. Pr. *402. If the answer is insufficient the plaintiff must state such parts of the bill as he conceives are not answered. Dan. Ch. Pr. *877. A statement of the particular ground of objection, whether for scandal or impertinence, necessarily includes a statement of, or specific reference to, the part of the answer objected to.

The notice in question states, first, that the matter set up in the amended answer does not disclose any equitable defence. This is mere demurrer. If complainant is willing to take the somewhat hazardous course of conceding all that defendant avers in the answer he should set the case down for hearing on bill and answer.

The second statement is that “ some of the matter set up as a pretended defence” shows defendant guilty of fraud and that “ a part of the matter set up ” is not properly pleaded. The particular matters thus criticised are not pointed out. If they had been the objection, if sustained, would have gone not to the whole bill but only to the part indicated.

The verification, of the answer appears to be in the common form.

The application is denied, with costs.


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    Clarence D. Ward v. Laura Bush et al.
    [Filed February 5th, 1900.]
    1. A legacy given to discharge an obligation will not lapse by the legatee’s death prior to that of testator.
    2. A legacy declared to be “for value received” will be presumed to have been given to discharge an obligation so as to preclude a lapse by the legatee’s dying before the testator, in the absence of evidence to the contrary.
    On final hearing.

      Messrs. Vail & Ward, for the complainant.

      Mr. Edward 8. Savage, for the defendants Daly and Tyrrell, executors.

      Mr. Otto Grouse, for the defendants Bush and others.
   Stevens, V. C.

By her will Mary A. Van Ortwick made the following bequest: “Item. I give and bequeath unto Dr. J. J. Daly, of Rahway, N. J., the sum of one thousand dollars for value received.” Dr. Daly died in the lifetime of testatrix, and the question is whether the legacy lapsed. The rule is that a legacy does not lapse when given to pay a debt. It has been so held even where the debt was barred by the statute of limitations at the time testator made his will. Williamson v. Naylor, 3 Younge & Coll. Ex. 208; Philips v. Philips, 3 Ha. 281; Turner v. Martin, 7 DeG., M. & G. 429. The case is said to be one of mingled bounty and obligation, and the rule with reference to the lapsing of legacies, being itself founded on presumed intention, is held not to be applicable, where the intent appears to be to discharge a duty — a duty which, manifestly, is owing as well to the estate of the creditor as to the creditor himself. On much the same principle a legacy given to and accepted by a widow in lieu of dower is not subject to abatement proportionately with other legacies on a deficiency of assets, for the legacy is considered as a purchase of the dower. Heath v. Dendy, 1 Russ. *546; Williamson v. Williamson, 6 Paige 305.

In the case at bar there is enough to show that the legacy was given not as mere bounty but in discharge of an obligation. It need not appear to have been an exact equivalent to it. Philips v. Philips, 3 Ha. 292. The testatrix says that she gives it “for value received.” These words, as well understood by laymen as by lawyers, raise the presumption of a legal consideration moving from the promisee sufficient to sustain the promise. Holliday v. Atkinson, 5 Barn. & C. *501; Clayton v. Gosling; 5 Barn. & C. *360. It is so held not only in the case of notes and bills but of other contracts (Whitney v. Stearns, 16 Me. 397), and even of deeds of land. Jackson v. Alexander, 3 Johns. 493. In the case last cited, where the deed was expressed to be for “ value received ” and could only operate as a bargain and sale under the statute of uses, Chief-Justice Kent says: ‘Value received’ is equivalent to saying money was received or a chattel was received. It is an express averment ex vi termini of a quid pro quo.”

In the case at bar no evidence was offered on either side. There being, however, in the will itself an admission of valuable consideration received, the bequest comes within the above-mentioned rule and must be held not to have lapsed by Dr. Daly’s death in testatrix’s lifetime.

Duncan v. Franklin Township, 16 Stew. Eq. 144, it was said, lays down a contrary rule. But the decision there was placed upon the ground that the expression his services in assisting me at different times” did not, standing alone, import obligation. It might have had reference to mere voluntary courtesy. Here ■the words do, prima facie, import obligation. They import such consideration as would, in an action at law, support a promise. They must, therefore, in this court, suffice to indicate an intention on the part of ’testatrix to discharge a legal obligation and not to confer a mere bounty.