text:
    Anna Pitel, appellant, v. Abram Pitel, respondent.
    [Decided February 6th, 1919.]
    On appeal from a decree of the court of chancery advised by Advisory Master Joline, who filed the following opinion:

      “The complainant and defendant were married on April 2d, 1913, in the city of Philadelphia and State of Pennsylvania, and established a. residence at Brotmanville, in this state. Their married life does not seem to have been the happiest, their dispositions being the opposite of each other. I think that the complainant was of a nervous, excitable disposition and apt to take offence at slight things, while that of the defendant was sullen and moody. Their married life was quite stormy, but I cannot say that the defendant was entirely responsible for it. The evidence convinces me that the petitioner was partly responsible for it. She complains of acts of cruelty on the part of her husband, which he is no doubt responsible for, but I think that her own conduct in a measure incited him to these acts of cruelty.
    “On the 8th day oil June, 1914, a dispute'occurred between them. The defendant left their home and went over to his father’s home, but returned about nine o’clock at night, and try-, ing to get in his house found it locked. When he asked permission to enter she refused it. The next day he went with a friend, and she again refused to let him enter. It would seem from this that the actual desertion was on her part, but she alleges the cruelty of the husband as the cause of her leaving him, claiming that there was constructive desertion. She immediately- had him arrested for non-support, and an order was entered in subsequent proceedings that he support her, which order has expired. The husband then went- to Reno, Nevada, where he attempted to establish a residence and obtained a decree of divorce, coming back as soon as it was granted to New Jersey, where he has lived over since in the vicinity of the petitioner’s home. Subsequently, the petitioner obtained an order opening this decree and the matter is still undetermined in Reno. I am convinced that the act on the part of the husband in obtaining this divorce in Reno was a fraud upon the rights of the petitioner. In any event, after he returned to New Jersey, he made efforts to have the petitioner return to him, and live with him as his wife. These efforts she repulsed, she calling him at times a tramp, a bum and spitting in his face. I cannot say that these efforts were not sincere. They were persisted in, and each time they were repulsed. The conduct of the petitioner, in any event, shows her state of mind and her unwillingness to again live with her husband and give him a trial. It may be that if he had been cruel to her, he then saw the error of his conduct and was willing to live with her and treat her as a husband should. If a husband makes sincere efforts, after having deserted his wife, 'to have her return to him and live with him as his wife, it can-, not be said that the desertion is continuous on his part. The act authorizing this proceeding declares that the husband must not only without justifiable cause abandon or separate from his wife, but also refuse or neglect to maintain and provide for her. The effort on the part of the defendant to induce the petitioner to return and live with him again, made on several occasions, and repulsed by her in the manner above stated, I think relieves the husband from the charge of abandonment.
    “While the conduct of the defendant may not have been all that a true and loyal husband owed to his wife, still I am inclined to believe that even after the decree of divorce in Reno was granted, he wished to re-establish his marital relations and that she refused his offer.
    “I am, therefore, of the opinion that a decree should be entered in this case dismissing the bill of the complainant, and I so advise.”

      Mr. Herbert C. Bartlett', for the appellant.

      Mr. Royal P. Tuller, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Advisory Master Jolino.

For affirmance — Ti-ie Oiiiee-Justtce, Swayze, Trek-chard. Parker, Bergen, Minturn, Tvaltscii, Black, Heppentieimek, Wri/r.TAMS, Gardner — 11.

For reversal — Hone.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Henry Prisco, appellant, v. Thomas Prisco et al., respondents.
    [Decided February 6th, 1919.]
    On appeal from a decree in the court <jf chancery advised by Vice-Chancellor Learning, who filed the following opinion:
    “One of the deeds of conveyance which is challenged in this case was made by Palmyra Tee and Coal Company to complainant January 20th, 1913, and recorded February 19th, 1913; the other, also challenged, was made by William L." F. Gsand to complainant July 16th, 1913, and recorded July 19th, 1913. Both deeds express money considerations and declarations to the use of the grantee. Tt is, however, conceded that the consideration of these deeds was paid by the father of the complainant and that the complainant was at that time only sixteen years of age.
    “The payment of the purchase by a person other than the grantee named in the deed of conveyance may, in some circumstances, be sufficient to overcome and destroy the regular and formal written title which declares the conveyance to be for the use and benefit of the grantee, and to thus raise a. resulting trust in favor of the person so paying the purchase price (see Whitley v. Ogle, 47 N. J. Eq. 67; Midmer v. Midmer’s Executor, 26 N. J. Eq. 299); but where the conveyance is made by a father to his son, or where the consideration is paid by the father and the conveyance made by a third party to the son, there arises a presumption of gift which must also be overcome by evidence before it can be determined that the written instrument shall not be effective according to its terms. And to overcome such presumption of gift from a father to his son, the evidence relied on must-be convincing and leave no reasonable doubt. This rule is delined by our court of errors and appeals in Reed v. Huff, 40 N. J. Eq. 229, as follows:
    " ‘The proofs which shall raise a resulting trust, or rebut the presumption of a gift or settlement in the case of a child or wile, must he of facts antecedent to or contemporaneous with the purchase, or else immediately afterwards, so as to he in fact part of the same transaction; a resulting'trust cannot be raised from matters arising ex yod fado. 1 Lead. Cas. Eq. 223; Cutler v. Tuttle, 4 C. E. Gr. 549. It is also well settled that the proofs which shall rebut the presumption of a gift in favor of a child or wife shall be equally satisfactory and explicit with the proofs required to- establish a resulting trust; the circumstances relied on must be convincing and leave no reasonable doubt as to the intention of the party. Peer v. Peer, supra.

      “This rule is again stated by our court of errors and appeals in McGee v. McGee, 81 N. J. Eq. 190, as follows:
    “‘The rule in this state is ivell settled that-where a. husband procures real estate to be conveyed to his wife, he paying tiie consideration, a presumption arises that he intends to settle the property on her, and while such presumption may he rebutted, the jn’oof offered to accomplish it must he certain, definite, re-liahle and convincing, leaving no reasonable doubt of the intention of the parties.’
    "Accordingly, the primary inquiry in this suit is whether the proofs which have been offered to establish as a fact that the conveyances hero, in question were not gifts to the son are adequate to establish that fact with that degree of certainty which the law requires.
    "A detailed review of the evidence seems unnecessary. It is quite possible that the father of complainant may have had in mind at the time the conveyances were made -that he could reclaim the titles in the event that his son’s future conduct was not satisfactory; but in view of tire good conduct of his son up to that time it is more probable that no substantial doubt touching bis future conduct was then entertained by the father, and that no thought of the possible necessity of recalling the conveyances entered his mind at that time. The testimony touching what was said to the son about his future good conduct, especially in view of the testimony to the contrary, when considered in connection with all the circumstances of the case, fails io convince me that a gift was not intended.. The claim made by.counsel that the consideration paid was one which the son was to earn by future good conduct is but a restatement of the claim that the conveyances were not gifts. I am convinced that the presumption of gifts has not been overcome by the evidence with that degree of certainty which is required in such circumstances. As stated by our court of errors - and appeals, the declaration to the use of the son, as contained in the deeds, and the accompanying presumption of gifts to the son, should only be overcome by proofs certain, definite, reliable and convincing, and leaving no reasonable doubt as to the. intention of the parties.
    “The marriage of the son shortly before he reached his majority obviously was the act which occasioned the parents’ dissatisfaction and led to the attempted repudiation of the gifts: but for that act it may well be doubted whether any controversy would have arisen.
    “This view is equally applicable to the improvements subsequently made on the land by the father. The improvements will be presumed to be gifts to the son unless that presumption is .sufficiently overcome by the proofs. Selover v. Selover, 62 N. J. Eq. 761, 763. The notion that the residence was personalty and was designed to be removed by the father for his own rise is clearly untenable. It was no part of the intention of anyone to ever have the building removed from the lot on which it stood except upon the .possible contingency of a defective title to the lot. As between the father and son the building was clearly intended as a permanent improvement to the lot.
    “I am satisfied that complainant is entitled to an injunction restraining the removal of the house from the lot on which it stands.
    “But I do not think that complainant is equitably entitled to an accounting for the net income of the property prior to the time he permanently left his parents’ home. Prior to that time he resided at his parents’ home at their expense and they received his wages, except as to small allowances to him for spending money. Soon after his marriage he left his parents’ home with their consent; until then he was unemancipated. It, accordingly, seems inequitable to charge the parents with the net income of the property during the period that they assumed the burden of their son’s support. During that period they were entitled to their son’s wages and owed him support and other parental duties. Although the property belonged to the son, its care and management appropriately fell to his father, and the existing circumstances seem to negative the idea that its meagre net revenue should he set apart for the son’s separate use. But after the son left his parents’ home with their consent the net income of the property appropriately came to him. Unless counsel can agree upon the net revenues since that date I will advise a reference for an accounting.”

      Mr. -Joseph Bede Tyler, for the appellant.

      Mr. Herbert. A. Drake, for the respondents.
   Per Curiam.

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

For affirmance — Tiie Chief-Justice, Swayze, Treno hard, Parker, Bergen, Minturn, Kalisci-i, Black, White, HepPENUETMER, WILLIAMS, GARDNER — 12.

For reversal — None.


author: Walker, Chancellor.

text:
    In the matter of William Taub, of the City of New Brunswick, County of Middlesex, and State of New Jersey, a lunatic.
    [Decided March 20th, 1919.]
    1. Under the act concerning idiots and lunatics (Oomp. Stat. p. £7SI § 1), the guardian of a lunatic appointed by the orphans court is charged with the duty of the support and maintenance of his ward out of his goods, chattels and the profits of his lands and tenements, and is empowered to consume so much of those goods and chattels as may be necessary therefor; and a power to convert so much of them into cash as may be necessary for the purpose is implied.

      2. Under the act relative to guardians and the estates of minors ' (Oomp. Stai. p. 8688 § 19), the orphans court, when the income of a lunatic is insufficient for his proper support, may, if it be found that such lunatic has no'other means of support, &e., make an order authorizing the use of the principal of his personal estate, or a part thereof, for such support; and this implies a power to order the conversion of that estate, or such iiart thereof as may be necessary, into cash, through a sale by the guardian.
    3. A guardian may pay out so much of his ward’s cash from time to time as may be necessary to settle current bills for his proper maintenance, or may from time to time consume so much of his goods and chattels as may be necessary for the purpose, and, if need be, may first convert those goods and chattels into cash, not by wholesale, but only so much as may be returnable, unless lie .obtains an order from the orphans court permitting sales in bulk under Oomp. 8ta,t. p. 8683 § 19.

    4. The orphans court, and not the court of chancery, has jurisdiction to 'order a sale of the personal estate of a lunatic for the purpose of his maintenance.
    On petition, &c. On application for sale of lunáticas personal properly.

      Mr. George J. Pleclmer, for Edward E. Houghton, guardian, petitioner.
   Walker, Chancellor.

William Taub was, by a jury under a commission in the nature of a writ de lunático inquirendo out of this court, found to be a lunatic who does not enjoy lucid intervals, so that he is not capable of governing himself, his goods and chattels, &c. On February 4th, 19.19, the petitioner was duly appointed by the orphans court of Middlesex county, guárdian of the person and property of Taub, according to the statute. The petition shows that the lunatic is now an inmate of a hospital situate at Central Islip, Long Island, New York; that he is not possessed of airy lands or real estate but is possessed of or entitled to goods, chattels and personal estate consisting of jewelry, jewelry store fixtures, silverware, equity in pawn tickets, equity in a liberty bond, and certain rights and credits arising on book accounts and contracts of the value as nearly as the petitioner can ascertain, of $10,000 or thereabouts; that there is no cash in the estate of the lunatic and that ho has no means of support except such as he will receive from the sale of his goods, chattels and personal estate, and that his interest requires that his goods and chattels be sold in order that the same may be converted into cash to be used to properly maintain and support him, and prays that an order may be made by this court directing him, as guardian, to sell all the goods, chattels and other personal property of Taub, of whatsoever the same may consist and wheresoever the same may be situate, either at public or private sale, so that all of his property may be' converted into cash, and that he may be properly supported and maintained therefrom.

It is urged that the orphans court has no power, save that residing in the statute, and.that there is no statute authorizing that court to order a sale of a lunatic’s personal property to raise moneys for his support.

Our act concerning idiots and lunatics (Comp. Stat. p. 27S1 § i) provides, among other things, that in case of lunacy found' on inquisition out of the court of chancery, the chancellor shall cause to be transmitted to- the orphans court a certified copy of all proceedings, which shall be filed and recorded in the surrogate’s office, and that the orphans court, on application for the purpose, shall appoint some fit and discreet person guardian of such lunatic, who shall have the care and safekeeping of such lunatic, his lands, tenements, goods and chattels, that the lunatic may live and be competently supported and maintained by and out of his goods, chattels and profits of his lands and tenements, and that such lands, upon the death of any such lunatic, shall descend and go to his heirs, and the residue of the goods, chattels and profits of such lunatic, after payment of his just debts, shall go to- and b'e distributed among his next of kin, and in case such lunatic shall come to his right mind, that the lands and tenements, with the residue of the goods, chattels and profits of such lunatic, be restored to him.

The guardian has given the bond required by section 15 of the act (Comp. Stat. p. 2798), one of the conditions of which is, that he shall render a true account of the expenditures and disbursements of the goods, chattels and personal estate of the lunatic that shall come to his hands.

As the statute expressly provides that the guardian shall have the care and safekeeping of the lunatic and his goods and chattels that he may live and he competently supported and-maintained out of such goods, chattels and profits of his lands, he is expressly empowered to consume those goods and chattels, or so much of them as may he necessary, for the support of his ward; and, as he may barter and exchange them for such support and maintenance, he certainly has an implied power to turn them into the circulating medium of cash that the beneficent object of the statute may be accomplished; and this view is strengthened, if need be, by the provision in section 15 for the condition of the bond, that the guardian shall render an account of his expenditures and disbursements out of the goods, chattels and personal estate of the lunatic.

The rule is that whatever is necessarily or plainly implied in a statute is as much a part of it as that which is expressed; and the grant of a specific power or the imposition of a definite duty confers by implication authority to do whatever is necessary to execute the power or perform the duty. 36 Cyc. 1112-13.

The rule concerning an implied power of sale in executors or trustees is apposite.

In Lindley v. O'Reilly, 50 N. J. Law 636, the court of errors and appeals held that where a testator imposes on his executor a trust to be executed or duties to be performed which require an estate in his hands or a power of sale, the executor will take by implication such an estate or power as will 'enable him to execute the trust or perform the duties devolved. See, also, Executors of Vanness v. Jacobus, 17 N. J. Eq. 153; Belcher v. Belcher, 88 N. J. Eq. 126; Naar v. Naar, 41 N. J. Eq. 88; Hollman v. Tigges, 42 N. J. Eq. 127.

Upon the statute and authorities above cited it is my opinion that the guardian has a right to consume the lunatic’s personal estate for his support, and if it does not consist of cash, which he could undoubtedly expend for the purpose mentioned, he may convert the ward’s securities into cash for the same purpose.

In Potter v. Berry, 86 N. J. Law 454, the orphans court made an order directing that the guardian of a lunatic should expend the sum of $2,000 annually for his support out of his personal estate and the income of his real estate. ■ The supreme court in that case held that the jurisdiction of the orphans court is the creature of statute and'that that court could only exercise those powers which the obvious intention of the legislature appeared to have conferred; and that it could discover no sign of a legislative purpose conferring upon the orphans court authority to decide in advance what amount of the lunatic’s personal property or of the profits of this realty should be expended for his support by his guardian; that although the guardian is to render an account of his administration to the orphans court, and that court is to pass upon the propriety of his conduct, yet this by no means implies that before the exigencies arise the court may anticipate the possible conditions and prescribe his duties and limit his powers, and that the-guardian, not the court, is made the administrator of those funds, subject only to.the judgment of the court upon the honesty and prudence of his transactions; that the power delegated by the statute to the court is essentially different from that exorcised in making the order there under review, the. former being purely judicial, the latter mainly administrative. The order was held to be beyond the jurisdiction of the orphans court and was set aside.

The meaning of this was, that the guardian might pay out so much of his ward’s cash from tune to time as was necessary to settle current bills for his proper maintenance, or might from time to time consume so much of his goods and chattels as was necessary for the purpose. And I am of opinion that a guardian ma3, if need be, first convert the goods and chattels of his ward into cash, not by wholesale, but only so much as may be requirable, unless he obtains an order from the orphans court permitting sales in bulk under Comp. Stat. p. 2633, § 19, which act was passed after the decision of Potter v. Berry.

It was undoubtedly the purpose of the legislature to relieve a guardian from the annoyance and difficulty, from time to time, of disposing of parcels of personal property, that the act of 1901 (Comp. Stat. p. 2633, § 19) was passed. This statute provides that when it shall be made to appear to the orphans court by the verified petition of the guardian of a lunatic, among other incapacitated persons, that the income of the estate of such person is insufficient for his proper support, &e., it shall be lawful for the orphans court to inquire into the circumstances of the case, or refer the same to one of the masters in chancery for investigation and report: and if, upon such inquiry, or report, it be found that such person has no other proper means of support, &c., and that such order would be for his best interests, the court may make an order authorizing the use of the principal of the personal estate, or a part thereof, as it may deem for the best interests of the lunatic, See.

The guardian of a- lunatic being under the duty to support his ward out of his goods and, chattels and the profits of his lands, has the power, as above shown, to consume those goods and chattels, if need be; and the act of 1901, in my opinion, authorizes the orphans court to order the conversion of his personal estate, or part of it, into cash, for the purpose mentioned, through a sale by the guardian.

A receiver for the estate of the lunatic was appointed in limine in these proceedings. He has filed an inventory and report, which shows an- estate of the value, apparently, of $9,458.35, consisting of the stock in trade of a jewelry store, books of accounts, pawii tickets, See. These, or so much of them as may be deemed necessary for the purpose, may be ordered sold by the orphans court for the lunatic’s support, by virtue of the act just mentioned. And choses in action may also be sold under the authority of this statute, as they are personal property. They also undoubtedly are goods and chattels in law. Terhune v. Executrix of Bray, 16 N. J. Law 53; Greenwood v. Law, 55 N. J. Law 168, 174

Upon this whole matter I am clearly of opinion that the orphans court, and not the court of chancery, 'has jurisdiction to order a sale of the. personal estate of a lunatic for the purpose of his maintenance; and the application of the petitioner will, therefore, be denied.


text:
    William Bolmer, petitioner, v. Genevieve S. Edsall, otherwise Genevieve Bolmer.
    [Decided March 28th, 1919.]
    1. Sexual intercourse is not only a marital right, but also a marital obligation.
    2. Where one of the parties to a mhrriage ceremony determines aforethought that he or she will not engage in sexual intercourse with the other after marriage, and does not disclose it to the other, and carries out such determination, the offending spouse commits a fraud in the contract of marriage affecting an essential of the marital relation, against which the injured party may be relieved by annulment of the marriage in this court under its general equity jurisdiction, dissociated from its statutory power to annul for specified causes.
    3. Corroboration considered; especially with reference to the probative force of a marriage certificate.
    4. Corroboration is required in suits for nullity of marriage as well as in those for divorce from the bonds of matrimony.
    5. B. and E. went through a ceremony of marriage on board a steamship plying between two ports of the Republic of San Domingo; it not being shown in what country the vessel was owned, registered or whose flag she flew; querré, under the laws of what state or country was the marriage ceremony performed.
    (i. As the ships of a nation, wherever they may be, are considered a part of its territory: senible, that a marriage ceremony performed upon a ship, whether upon the high seas or within the territorial waters of a foreign nation, is governed by the laws of the nation where the ownership of the vessel resides, whether it be a government vessel or a merchantman.
    7. 'The validity of a marriage is determined by-the lew loci contractus, and is dissolvable by the lew domicilii.

    8. In nullity cases, as well as in those for divorce, it should appear to the satisfaction of the court that the proceeding is not the result of collusion ; but collusion is not lightly or rashly to be presumed. In a case in which the party or parties swear that there is none, it will be pre-' sumed that collusion does not exist, unless the contrary is made to appear.
    9. In a cause for nullity of marriage under the general equity powers of the court of chancery, the first decree for the petitioner must be a decree nisi, under P. L. 1916 p. 109, assimilating the practice and procedure in such suits to those for nullity of marriage under the provisions of the Divorce act. Bev. of 1901.

      On exception to master’s report.

      Mr. Frank B. Jess, for the exceptant.
   Walker, Chancellor.

This is an ex parte suit for annulment of a marriage. The special master has reported adversely and petitioner excepts.

The parties were married October 19th, 1917, and lived together little more than four weeks. They never had sexual relations.

The claim of the petitioner is that the wife before marriage conceived the idea of denying him sexual intercourse after marriage; never intended to permit him to copulate with her, and carried out that intent; that this constituted a fraud in a material part of the marriage contract and rendered it void.

The special master submits to the court that our Divorce act does not authorize a dissolution of marriage on the ground taken by the petitioner; that this court lias always confined itself in annulling marriages, for causes not specified in the statute, to such as were not de fado marriages, because void; and he' further submits that the marriage of these parties was not void for want of contract; that its annulment is sought for cause which did not exist at the time of marriage, but arose since, and that such cause is not a circumstance going to the validity of the marriage and therefore not ground for annulling it.

Since the status of marriage is conferred by contract, and' since for avoiding contracts equity has jurisdiction over all questions of fraud, if such an impediment has entered into a marriage a court of equity will pronounce it void. This is not the rule in England, because formerly there was there an express jurisdiction in the ecclesiastical courts, and now there is in the divorce court. 2 Bish. M., D. & S. § 803.

We never bad ecclesiastical courts in New Jersey, and with us the jurisdiction to annul for fraud resides in this court.

In Carris v. Carris, 24 N. J. Eq. 516, the court of errors and appeals held that the court of chancery under its general power to annul fraudulent contracts, has jurisdiction to annul a corn tract of marriage for sufficient fraud. And Chancellor Magie in Crane v. Crane, 62 N. J. Eq. 21, held that to annul lor a fraudulent representation inducing the contract,‘the fraud must affect an essential of the matrimonial relation. Vice-Chancellor Lane in the very recent case of Davis v. Davis, 90 N. J. Eq. 158, annulled a marriage because the defendant was suffering from hereditary chronic tuberculosis at the time of the ceremony, which fact he withheld from the petitioner, fearing that if she knew it she would not marry him, and pointed out that this court will annul a marriage imposed upon one party by false representations of the other in respect to an essential of the contract, unless it appears that to do so would be against good policy, sound morality and the peculiar nature of the marriage relation. It is most obvious that the case at bar does not fall within the exceptions stated.

In the case Anonymous, 24 N. J. Eq. 19, it was held by Chancellor Runyon, that this court will apnul a contract of marriage, outside of its statutory jurisdiction, where the contract is void. In this case (Anonymous) the chancellor refused to annul a marriage for impotence on the part of the husband which existed at the time of the marriage, had continued ever since and was ineuiable; and this for the reason stated by Bishop, whom he quotes, that is, because impotence is a canonical defect which only makes the marriage voidable and not void until sentence of nullity is pronounced. Our legislature subsequently bestowed the power on this court to annul marriages for such impotence. The cause for nullity pleaded in the case at bar is no canonical defect; in fact it is no defect at all. It is a fraud .practiced by one of the parties upon the other affecting the contract in its inception. If it does not fall within the class of cases in which this court may annul for fraud the injured party is remediless.

On the question that marriage is regarded in this state as a civil contract and that our court of equity will entertain suits to set aside such contracts on the ground of fraud, see Vanderbilt v. Mitchell (Court of Errors and Appeals, 1907), 72 N. J. Eq. 910 (at p. 918).

The master in his correct summary of the testimony says that the petitioner deposed that defendant at all times refused him sexual intercourse, although lie attempted it, saying, first, that she could not, and, second, that the act was disgusting to her; and, further, he said she told him she had made up her mind on the question before leaving Philadelphia to go to San Domingo, where, on the boat on which she made the voyage, they were married, between the ports of La Romana and Macoris, Republic of San Domingo. She was called as a witness by the peiitioner, which is allowable (McCauley v. McCauley, 88 N. J. Eq. 302), and testified tliat she knew what the married state entailed in regard to sexual relations, and that before the wedding she made up her mind not to consummate the marriage, and that prior to the ceremony she never communicated this determination to the petitioner.

If these facts be true, then, to my mind, this woman perpetrated a palpable fraud upon this man in withholding from him information that sl\e did not intend to submit to-his sexual embraces, thereby depriving him of an absolute marital right. It may be safely asserted that Mr. Bolmer would not have gone through a marriage with Miss Edsall had he known that she had previously determined to' make the ceremony a mockery.

In McClurg v. Terry, 21 N. J. Eq. 225, it was held by Chancellor Zabriskie that intention is necessary in a marriage as well as in every other contract.

In True v. Ranney, 21 N. H. 52, 56, a suit for nullity on the ground of the female’s imbecility, prosecuted by next friend, the court observed that throughout the civilized world the willing mind is required as an essential attribute of the contract of marriage.

In Clark v. Field, 13 Vt. 460, the supreme court of the State of Vermont (at p. 467), speaking of the power of chancery to annul a marriage, remarked that the necessity of such jurisdiction was apparent, and that the court apprehended that it falls within the ordinary equity jurisdiction to relieve against contracts obtained by fraud, or where one or both of the parties were deceived. And, again (at p. 468), that it would be very singular if the court may relieve against all other contracts obtained by fraud or imposition, and could not relieve from this contract when obtained by such means, when consent was not given■ understandingly and the marriage was not consummated.

Tiie master, ends his report with the observation that, in view of his conclusion, it was unnecessary to express any opinion as to what credence was to be given to the testimony of the parties; whether or not the wife’s testimony alone is sufficient corroboration upon which to base a decree of nullity, or whether there is collusion between the parties.'

G— v. G — , L. R. 2 P. & M. 287, 291; 40 L. J. (1871) Pro. & Mat. (N. S.) 83, was a question of nullity of marriage. Mrs. Gr. instituted a suit for judicial separation on the ground of cruelty. The respondent denied the charge and alleged that the marriage had never been consummated by reason of the incapacity of the petitioner, and prayed for a decree of nullity. Lord Penzance observed that it is clear that without sexual intercourse the ends of marriage, the procreation of children and the pleasures and enjojunents of matrimony cannot be attained; that the invalidity of the marriage, if it cannot be consummated on account of some structural difficulty, is undoubted, but the basis of the interference of the court is not the structural defect, but the impracticability of consummation, and if, therefore, a case presents itself involving that impracticability (although it may not arise from a structural defect), the reason for the interference of the court arises. The impossibility need not be technical, but it must be practical; it cannot be necessarj^ to show that the woman is so formed that connection is physically impossible, if it can be shown that it is possible only under conditions to which the husband would not be justified in resorting, among which is brute force.

In this case (G— v. G — ) it does not appear that there was any fraud inducing the contract, with reference to the wife’s unwillingness or inability to submit to sexual intercourse, but rather that the trouble was discovered after marriage, which would be ground for nullity for impotence under our statute, if the difficulty were structural. But this makes no difference, as the ecclesiastical courts in England had power in both,classes of cases, and that jurisdiction was devolved upon the present divorce court by act of parliament; and the judge ordinary in G— v. G— had no occasion to consider any question of jurisdiction. It is true that the power to annul and divorce resides in the same, court in this state, but that is a. mere coincidence, the legislature having bestowed the power to divorce upon our court having inherent jurisdiction to annul.

The defendant’s testimony coincides with that of the petitioner, but by our Divorce law that cannot be laid hold of as corroboration, unless her testimony is itself corroborated.

In Garrett v. Garrett, 86 N. J. Eq. 293, I adverted to the inflexible rule in this state that a'divorce will not be granted upon the uncorroborated testimony or admission of a party to the suit; and held that as a decree cannot be granted upon the uncorroborated testimony of the petitioner, or upon the defendant’s uncorroborated confession, it follows that such uncorroborated testimony plus such uncorroborated confession fnnonnt to no more than each standing alone and are insufficient and not legal evidence; that while both are admissible in evidence, each must be corroborated in order to be effective as evidence in the cause.

I assume that if the wife’s testimony corroborates her husband’s, and hers is corroborated, that corroborates his.

Now, the parties to this suit, petitioner and defendant, were the only witnesses sworn (except a solicitor who had been consulted by defendant, but whose testimony did not affect the merits) and, as the petitioner’s uncorroborated testimony will not entitle him to a decree, and as the defendant’s admissions do not amount to the corroboration the law requires, it follows that if there is to be a decree the testimony of one or both of these parties must be corroborated.

If the defendant would submit to a physical examination of her person for the purpose of showing whether or not the marriage had been consummated, and the result showed that she was still a virgin, this would corroborate the petitioner’s testimony.

The court may order an inspection. Shafto v. Shafto, 28 N. J. Eq. 34; Bid. N. J. Div. Pr. (2d ed.) 55; 14 Cyc. 661, and note 78. And if the defendant were a resident of New Jersejq and within the reach of the process of this court, inspection-, which, presumably, would afford corroboration, might be compelled.

The gravamen of the complaint before me, namely, the denial of sexual intercourse, is not the only element in the proofs necessary to be corroborated. There are three essentially requisite things in a divorce suit necessary to be corroborated, and a nullity suit falls within the same rule (Crane v. Crane, 62 N. J. Eq. 21) — first, marriage; second, residence, and third, cause of action.

Without marriage there can be no breach of matrimonial duties, no suspension or dissolution of a marital relation which does not exist; therefore, in every divorce suit there must be a marriage and it must be proved; the decree in effect and in form affirms the marriage and declares the separation or dissolution; and this doctrine applies to all suits for setting up, declaring null, dissolving or in any way modifying a 'marriage -status. 2 Bish. M., D. & S. §§ 732, 733, 734, 737. And in a suit for nullity the object whereof is to obtain a judicial declaration that what was supposed or claimed to be a marriage did not constitute’ matrimony, the ceremony or other like thing sought to be set •aside, must be proved. Ibid. § 737.

A ceremony of marriage involved in a nullity suit, I take it, requires the same sort of proof, and no more,.than is required to establish a marriage in a suit for divorce from the bonds of a valid one. II is conceded that proof of a marriage for the purpose of dissolving it may be much less strict than that required to prove residence or the cause of action. It is hardly to be presumed that anyone would assert a marriage for the purpose of undoing it. If it did not exist it would be, so to speak, already undone. However, under our law, there must be some corroboration to the parties’ assertion of the fa'ct of marriage. Mr. Bishop says that,if the officiating person gives to the parties at'the marriage a certificate of the fact, where there is accompanying parole proof of the transaction, it is admissible in evidence as of the res gesta’. 1 Ibid. § 1006.

How, in the case at bar the parties both testified to the solemnization of the marriage by the ship’s surgeon, who, they said, was also a clergyman. The defendant testified that she had the marriage certificate at home and would be willing to produce it. This would he all-sufficient according to our daily practice in divorce cases in which the fact of: marriage is not contested, if this were a domestic marriage. Proof of the official character of the person celebrating the marriage seems not to be exacted unless challenged. However, the possible difficulties surrounding the proof of a ceremonial marriage may be obviated by proof of cohabitation and repute. 1 Ibid. §§ 1041, 1059, 1064; Ojserkis v. Ojserkis, 62 Atl. Rep. 113. The parties appear to have boarded in the house of a Mr. Bass, at La Romana, where they occupied a room together containing twin beds for the period of a month. But the ceremony which was performed on board the steamship Algonquin, between the ports of La Romana and Macoris, in San Domingo, may require the sanction of foreign law to support it.

The petitioner testified that they were married on shipboard because the laws of San Domingo required things that - they could not comply with, namely, the establishment of a residence and the posting of banns three separate times, leaving the notice up a week each time. Tt is not shown under what country’s laws the ship Algonquin -was registered or what flag she flew', nor is it shown whether the marriage took place within the territorial waters of San Domingo, or upon the high seas. If within the former, did the marriage come under the laws of the Republic of San Domingo, .and if upon the high seas, and the Algonquin was an American vessel, did the marriage fall under- the law's of the state of the union in -which the petitioner, or defendant, was domiciled ?

Marriage being a universal right, if, at any place where the parties may be, whether permanent or transient, they enter into a marriage by the law of "the place, they will be everywhere throughout Christendom holden to be husband and rvife; but if the transaction is not regarded as a marriage where it occurs, it will not be deemed such in any other country. Marriage as to its constitution is governed by the lex loci conlraclus, and as to its dissolution by the lex domicilii. 1 Ibid. §§ 838, 839. Therefore, if the validity of a marriage be drawn in question at the domicile of the married persons, yet, if it were celebrated abroad, its validity must be tried by reference to the lav of the country where the marriage had its origin. 1 Ibid. § 856.

The jurisdiction oi nations' extends into the ocean to one marine league from low water mark on the shore. 12 Cyc. 214; Manchester v. Massachusetts, 139 U. S. 240; 35 L. Ed. 159 ¡ 164 In English-speaking countries a league is estimated at three miles. Webs. New Int. Dic. 1227. The rivers, havens, bays and other arms of the sea extending into a state or country are -within the jurisdiction of such state or country. 12 Cyc. 215; Manchester v. Massachusetts; supra; Attorney-General v. Hudson County Water Co., 76 N. J. Eq. 543. But, the high seas being common to all mankind, vessels afloat upon it are regarded as parts of the territory of the nations whose flag they fly and to -which they belong, and crimes committed on such vessels on the high seas are exclusively within the jurisdiction of that nation: 12 Gyc. 215. And, moreover, the ships of a nation, wherever they may be, are considered a part of its territory. Ben. Adm. (4th ed.) § 2, citing The Hamilton, 207 U. S. 398, which was not a government vessel but a merchantman. S. C. sub nom. Old Dom. Steamship Co. v. Gilmore, 52 L. Ed. 264, 270.

An American vessel is deemed a part of the territory of the state within which its home port is situated, and, as such, a part of the territory of the United States. In re Ah Sing, 13 Fed. Rep. 286. Acts committed by master and crew would undoubtedly be decided by the law of the flag, that is, the country of the ship’s ownership and registry. See Mayer’s Adm. L. & P. 50. A steamship owned by a corporation of New Jersey is a vessel of that state and subject to its laws, notwithstanding its registry in New York. Int. Nav. Co. v. Lindstrom, 123 Fed. Rep. 475.

Assuming that the steamship Algonquin was- an American vessel, it would seem from the admiralty law that the validity of the marriage ceremony performed upon it between these parties on October 19th, 1917 would depend upon the law of the state of the Union in which the vessel was registered or where it was owned, and, according to the view hereafter expressed, it would be treated as being as valid as though performed according to the -laws of this state, where the petitioner had his legal domicile. But if the steamship were a vessel not of the United States, but of a foreign country, the validity of the marriage would have to be determined by the laws of that country, and we could not, I think, assume that its laws were the same as ours, but would require proof of them. And if the steamship were owned and registered in San Domingo, then, from what appears in the case, it would seem that the marriage was void, as the testimony discloses the fact that the parties determined to be married on shipboard to avoid the laws of that Republic, which require domicile and the posting of banns.

I do not wish to be understood as expressing an opinion as to the validity of this marriage ceremony. The questions which I have raised about it are such as are apparent in the record, and if the cause is to be further proceeded with according to leave hereinafter granted, it may lie to the advantage of counsel to know that in my view it ought to be shown where, and under what sovereign's laws, the marriage took place, and if out of the United States and in a foreign country, the marriage laws of that country.

As the validity of a marriage depends upon the ceremony being performed in conformity with the lex loci contractus, if this one were performed within the jurisdiction of the Republic of San Domingo it would seem to be void for want of conformity with the laws of that country, in which event it may be dissolved here by the lex domicilii; but, apparently, it was not performed in San Domingo.

In the courts of this country, I have been able to find but one case of a marriage on board a vessel at sea, and that is in Hynes v. McDermott, 7 Abb. N. C. 98, where it was held by the New York common pleas (affirmed, 22 Alb. L. J. 367; 10 Week. Dig. 508) that in .the absence of any evidence it could not be presumed that a vessel plying across the English channel, on which an American citizen contracted a marriage, was of a nationality which would subject the contract to a law different fr<5m that of New York. The married couple were, in that case, found by a jury to have entered into an agreement in London- to be then and thenceforward man and wife, which was followed by recognition by- the husband, cohabitation and birth of offspring,- the husband being at the time a citizen of the State of New York, temporarily sojourning in England; that that agreement was made with'a Iona fide intention to contract a valid marriage according to the laws of New York and to return to that state to reside there with his wife. ■

Law, as I understand it, lias no extra-territorial force, and I therefore fail to see how a party’s intention that a marriage contract entered into in the Kingdom of England could be given validity b}' the law of New York, even if such party were an American citizen domiciled in New York.

A few days after the occurrence just mentioned the parties to that contract of marriage sailed for Erance, and while on a steamboat crossing the English channel they repeated the same promises in their stateroom. Indulging the same presumption as to the Algonquin that the New York common pleas did with reference to the vessel crossing the English channel (as the testimony in this case is not full, and must be supplemented if the cause is to be proceeded with), proof as to the country where the vessel is owned should be made. . The court in Hynes v. McDermott was reviewing a record on appeal to which presumably nothing could be added. I am pointing to difficulties in one that may be treated as incomplete, and which may be supplemented.

A ease of possible marriage, at sea was adverted to in Holmes v. Holmes, 1 Abb. U. S. Rep. 525, in- which it is stated in the sj'llabus, that citizens of a state whose laws impose restrictions upon the mode of celebrating a marriage, cannot purposely go to a place beyond its jurisdiction, and not within the jurisdiction of another state — as, for instance, at sea — and there contract a marriage in a manner contrary to the laws of the state of their residence, and afterwards have such marriage sustained by the courts within it; that'such an attempt to be joined in marriage should be deemed a fraudulent evasion of the laws to wdiich the parties owe obedience, and ought not to be held valid. And the judge observed (at p. 543) that the marriage (in that case) might have taken place at sea where there were no civil regulations prescribing specified forms and ceremonies as necessary to give validity to the consent of the parties.

Nothing in the Holmes Case, it seems to me, applies in the ease at bar. The petitioner here, Mr. Bolmer, happened to be temporarily in the Republic of San Domingo, working as a civil engineer, and the defendant went down there determined to marry him, if the parties are to be believed, and I think they are; however, they are not corroborated; but that may be supplied.

In the case at bar there was no'going to a place beyond the domicile of the parties for the purpose of evading its laws and contracting a marriage contrary to those of their residence — no fraudulent evasion of the laws to which they owed obedience. His presence in.San Domingo was on a business errand, and hers on an errand of- love whose Platonic character was undisclosed to him before marriage, but rudely manifested to him afterwards, to the destruction of his domestic peace and happiness.- The presence of both on the ship and in the insular Republic was without mala '¡ides.

It will be noted that the judge who wrote the opinion in the Holmes Case took no account of the doctrine of the flag — that is, that ships of a country carry its sovereignty onto the seas, and, apparently, into the territorial waters of a foreign country. .

I think the'apprehension expressed in the.Holmes Case that there are no civil regulations at sea prescribing specified forms and ceremonies of marriage, is not well founded. It is literally true, but the law operates upon subjects or citizens wherever they may be, at sea or on shore, and it seems to me as valid a marriage can! be celebrated in the cabin of a' ship at sea as in the drawing room of a mansion on shore. The law obtains over a given area of land or water belonging to a particular country, and operates upon people within that area. It equally obtains and operates in and upon a ship- on the high seas. This appears to be borne out in Du Moulin v. Druitt, 13 Ir. C. L. 212, which was the case of a marriage on a British transport ship on the 'high seas; and by Culling v. Culling (1896), L. R. P. D. 116, where the marriage occurred on-a British man-of war at a foreign station.

Although the several states of the Union are independent' sovereigns with reference to their divorce laws, yet there is a general similarity in their laws regarding the contract of marriage, and marriages performed in any one state are quite universally recognized in all the states.

In the law of divorce in this state, where, on the hearing of ex parte cases, proof has been offered of a marriage in another state, I have never known a question to be raised by this court as to the validity of the marriage according 'to the laws of the state where the ceremony was performed. It is, I think, universally regarded in ex parte cases that a marriage celebrated in another state was legally performed, and is therefore valid here as well as there; and in the absence of a denial of its validity in a litigated case, it seems that proof is not required of the law of the state where the marriage occurred.

Then, too, the residence of the petitioner, necessary to clothe this court with jurisdiction, has not been corroborated. The petitioner says he lives near Rocky Hill, New Jersey, where he has resided continuously since 1898 with his mother. If this be so, and presumably it is, the means of abundant corroboration must be available to him.

On this subject of corroboration, especially as it relates to the cause of action in this case, it may be helpful to observe that corroboration, in order that a divorce may be decreed, need not be testimony given by another or other witnesses to all of the same identical facts to the minutest particulars, but only such facts and circumstances as will make the testimony believable. Orens v. Orens, 102 Atl. Rep. 436. And corroboration need not be the testimony of witnesses; it may be furnished by surrounding circumstances adequatély established. Rogers v. Rogers, 104 Atl. Rep. 32.

I am unable to spell anything out of the case which would seemingly show that the parties, or either of them, were not credible witnesses; and nothing appears in the case to suggest collusion.

In Sickles v. Carson, 26 N. J. Eq. 440, Chancellor Runyon observed (at p. 442) that the bill was not accompanied by an affidavit against collusion as required by the statute in divorce cases, nor vas there any evidence that the application was not collusive; and although an ■ affidavit of non-collusion is not required in these cases, yet in the nature of -the contract and character of the relief sought there is abundant reason for requiring, in nullity cases, that it should appear to the satisfaction of the court that the proceeding is not the result of collusion, as all of the reasons for requiring evidence of bona fides, and guarding the court against imposition in suits for divorce, apply equally to actions to annul contracts of marriage.. To this I agree. But collusion is not to be lightly or rashly j>resumed.

There could be no presumption of collusion in this case without charging the petitioner and defendant with false swearing, for each was examined on that question, and each testified that there was no collusion between them. Besides, there is an affidavit of non-collusion appended to the petition in this case. This is now required in this class of cases by P. L. 1916 p. 109. The talk between the parties in which the petitioner told the defendant that he wanted her to live with him or know that she would not, and, since she 'would not agree, he was going to take the matter to court; and her going to the hearing before the master, with counsel whom she had consulted, and testifying upon the call of petitioner’s counsel, do not suggest a case of collusion under any of the tests laid down in Sheehan v. Sheehan, 77 N. J. Eq. 411.

The result reached is, that a cause of action for nullity of marriage is presented and that this court has jurisdiction of it under its general equity powers, and of the parties, on the-believable though not controlling evidence. There is, however, no corroboration of the marriage, the residence of the petitioner or of the cause for action; and there is no evidence of collusion between them. . In this posture the petitioner may have liberty to take further testimony, or may dismiss this petition without prejudice, as he may be advised.

The exception will be sustained; and the special master’s recommendation that the petition be dismissed will be overruled.

SÜPPLTQIEKT-VL JIJEMOBANDUJr.

[Filed June 27th, 1019.]

The result reached, in my opinion in this case, was that a cause of action for nullity of marriage was presented and that the court had jurisdiction of the parties, and of the cause under its general equity powers, on the believable, though not controlling, evidence; there being no corroboration of the marriage, of the residence of the petitioner, or of the cause for action. In that posture the petitioner was given liberty to take further testimony or to dismiss his petition without prejudice. lie chose the former course and has taken further testimony. A perusal of this evidence discloses that the petitioner’s case has been corroborated in the respects above mentioned; including proof of the ship’s ownership and registry being in this country, -and he is therefore entitled to a decree. It must be a decree nisi.

The Divorce act of 1901 (P. L. 1907 p. 474 § 20) provided that if, after hearing, the plaintiff was entitled to a decree annulling the marriage, or a decree for divorce from the bonds of matrimony, a decree nisi should be entered; and which, by section 21, should become absolute after the expiration of six months unless appealed from or cause was shown to the contrary. That may have applied only to the -causes for nullity under that act which were — (1) prior marriage and a living spouse at the time of the subsequent marriage; (2) that the parties were within the degree prohibited by law; (3) physical and incurable impotence at the time'of marriage; (-1) incapacity for consent, and (5) non-age. In Bid. N. J. Div. Pr. (2d ed.) 279 cl scq., are forms of decrees nisi in the cases of prior marriage, impotcncy, non-age and incapacity to consent. In the case at bar the cause for nullity is one under the general jurisdiction of equity and is not any one of the causes for nullity provided for in the statute; but, by an act regulating the practice and procedure in suits for annulment of marriages under the general equity jurisdiction of the court (P. L. 1916 p. 109 § 2), it is provided that the same practice and procedure shall be followed as required in suits or actions for annulment of marriage unde]' the provisions of the Divorce act (Rev. of 1907), it being the intent and purpose of the act of 1916 to make uniform the practice and procedure in all causes of annulment of marriages, and it provides, in section 3, that appeals shall be taken from decrees nisi and not final decrees. Here is an express provision that the first decree in a nullity suit under the general jurisdiction of the court shall be a decree nisi, the same' as in nullity cases under the statutory provisions.

Decree nisi accordingly.


text:
    Hoboken Trust Company v. John Joseph Norton et al. On petition of John J. Norton, and John L. Richardson, his guardian, v. Leon Abbett.
    [Decided May 1st, 1919.]
    1. A decree should order taxed costs paid to the party to whose side the award is made and not to the solicitor of that party, as costs are recoverable by the parties to reimburse them for money expended in the prosecution or defence of a suit, although the solicitor may be entitled to all of the costs recovered; that is a matter between him and his client.
    2. Where costs are not awarded in favor of one party as against the other, they are taxable as between solicitor and client.

      3. Counsel fees are only earned by fidelity to, and activity fox, a client and his interests.
    4. The same rule applies, with even greater severity, in the case of an attorney than in the case of a trustee. Commissions are a compensation for the faithful discharge of duty, and when trustees violate their duty and commingle money belonging to their cestui que trust with their own, and use part or all of it for their own private purposes, they are not entitled to commissions.
    5. Clients are not alone concerned in the conduct, of their solicitors, but, also, the court and public, when the clients have been injured by the conduct of their solicitors contrary to the character of the legal profession and opposed to sound public policy and a proper and decorous administration of the law.
    O. When a solicitor did not remit to his clients the amount he collected for them, less his fees and costs, but concealed the fact of collection, and converted the entire fund to his own use, and is only in a position to pay it over because, since discovery, the compulsory process of the court has been laid upon him, he has forfeited all right to compensation for his services to his clients, and may recover only his actual disbursements in their behalf.
    7. It is an absolute duty of a solicitor to forthwith notify his client of a collection made for his account, and to make remittance to him, less his proper charges, as soon as'he reasonably can do so after receipt of his client’s money.
    On bill, &c. On petition, &c. On application for an order that respondent forthwith, pay over moneys collected as solicitor.

      Mr. Frederick K. Hopkins, for the petitioners.

      Mr. Leon Abbelt, respondent, pro se.

   Walker, Chancellor.

The bill in this case is one of interpleader and prayed for leave to pay into court a certain fund concerning which the defendants disputed ownership, and to require them to litigate their respective claims between themselves.. On June 6th, 1918, a decree was made that the bill of interpleader was properly brought and ordering the payment into court of the. fund held by the complainant, which amounted to $7,038. Thereafter such proceedings were had in the cause that on January 2d, 1919, a decree was made by consent endorsed thereon by Leon Abbett, solicitor for defendants John J. Norton and John L. Richardson, guardian', &c., and Benjamin M. Weinberg, solicitor -of the defendant Mary Norton, -wherein it was, among other tilings, ordered that there be paid to Leon Abbett, solicitor, &c., his taxed bill of costs, and that $1,000 of the fund be paid to Mary Norton or her solicitor, and to tlie defendants John J. Norton and John L. Richardson, guardian, &c., or to their solicitor, the balance of the fund; which decree was filed the next day, January 3d, 1919. In pursuance of this decree and on January 14th, 1919, a check was drawn on the funds in this court to the order of Leon Abbett, solicitor, for the sum of $6,047.75, being the balance of the fund to which the present petitioners, his clients, were entitled, according to the decree. The check was thereupon forwarded by the clerk of this court to Mr. Abbett, who endorsed it as solicitor and deposited it to his personal account and commingled it with his own funds in the Hudson Trust -Company’s bank at Hoboken, and used it for his own purposes. In the latter part of February, 1919, Mr. Hopkins, the solicitor of the petitioners, was-informed by the parties in interest that this money had not been remitted to them, and he was instructed to investigate the matter. He thereupon telephoned to Mr. Abbett, who informed him that he and Mrs. Norton’s solicitor had agreed upon the substance of a decree, hut not upon its form, and that they were waiting for an opportunity to get together so that they could both consent to the decree and have it advised by the advisory master to whom the matter had been referrec^. On March 4th, 1919, Mr. Hopkins visited the office of the clerk in chancery and found tjiat the decree which Mr. Abbett in the latter part of February, 1919, had informed him had not been drawn, had, on the contrary, actually been drawn, advised by the advisory master, signed by the chancellor, and filed in the clerk’s office on January 3d, 1919, and that the check in pursuance thereof, which had been made to the order of Mr. Abbett, as solicitor, on January 14th, 1919, bore his endorsement and had been paid by the bank and returned to, and was then in the possession of, the clerk of this court. It thus appears that when Mr. Abbett informed Mr. Hopkins that he was waiting for an opportunity to treat with Mrs. Norton’s solicitor concerning- the form of a decree, the decree had actually been filed for nearly two months, and he (Abbett) had had the money for over one month.

Mr. Hopkins made an immediate investigation and found that Mr. Abbett had deposited the amount of the check to his individual account and commingled it with his own funds on deposit'with the Hudson Trust Company, where he had at the time a balance of less than! $100. At the time of the making of the investigation Mr. Abbetfs balance with the Hudson Trust Company was less than $3,000, and he had checked out to his own order, as trustee of a bankrupt, a considerable sum and deposited that check in the Second National Bank of Hoboken.

On a petition filed disclosing these facts an order was made on Mr. Abbett to show cause why a summary hearing should not be had of the matters set forth in the petition and an order made that he be required forthwith to pay to the petitioners the sum of $6,047.75 so paid to him. On the return of the order he -appeared and asked for a continuance, which was consented to by his adversary. This was to afford him an opportunity to raise the money necessary to respond to the petitioners. The order to show cause restrained the Hudson Trust Company and the Second National Bank of Hoboken from paying to Mr. Abbett or to any other person on his order, any sum of money standing to his credit in either of those banks, until the further order of the court to the contrary. On April 10th, 1919, Mr. Hopkins and Mr. Abbett appeared before me and consented in open court than an order be made vacating the restraint on the Second National Bank of Hoboken, to the end that checks drawn by Mr. Abbett as trustee in bankruptcy to the creditors of his bankrupt, might be paid, he, Abbett, having deposited in the Hudson Trust Company amounts which in the aggregate made more than the amount paid to him for his clients, Norton and Richardson, by the clerk’s check of January 14th, 1919. The order was accordingly made.

Mr. Abbett has filed no answer to the petition; hás presented no affidavit, nor'in anywise denied the truthfulness of the matter-set out in the petition and verified by the affidavit annexed. He is now willing to pay over to his clients the money which he collected for them, less a fee of $500 which was agreed upon, besides his taxed costs. His clients resist this payment, contending that he is not entitled to so much, if anything, by reason of his derelict conduct above set out.

Before dealing with the question of the counsel fee, I will refer to the taxed costs. The decree in this cause erroneously provided that “there be paid to Leon Abbett, solicitor of the defendants John J. Horton and John L. Richardson, the guardian of the person and estate of John J. Horton, his taxed bill of costs.” There should have been no award of costs, as they were not to be taxed in favor of one party against the other; the decree reciting that Mary Horton was entitled to $1,000 and John J. Horton and his guardian, to the balance of the fund. In this situation Mr. Abbett could have had costs taxed as between solicitor and client and collected them from his client along with his fee. The decree in terms practically awards costs to the solicitor against his client, and this is never done unless on application for the purpose, on notice given to the client. Costs are recoverable by the parties to reimburse them for money necessarily expended in the prosecution or defence of the suit, and the decree or judgment is in favor of the party, not the solicitor or attorney. As between a party and his solicitor it generally happens that the latter is entitled to all of the costs recovered, but that is only so because the solicitor’s column contains fees for services rendered by him, and as to the columns for the court and others he is entitled to them for reimbursement, when he has paid them himself. See Ely v. Peet, 52 N. J. Eq. 734. The matter of costs is adjustable between solicitors and clients.

In this case bills of costs were taxed, as follows: those of Mr. Horton at $51.54, those of Mr. Richardson, guardian, at $14.58. In the Horton bill, in the solicitor’s column, are fees for services aggregating $37.60, that leaves $13.94 as the amount disbursed to the court and others. And in the Richardson bill, in the solicitor’s column, are fees for services aggregating $13.80. that leaves seventy-eight cents as the amount disbursed to the court and others.

Counsel fees are only earned by fidelity to, and activity for, a client and his interests.

In Adriaans v. Dill, 37 App. D. C. 59, in a suit in equity to vacate a fee contract fraudulently obtained by the attorney, the fraud being established, it was. held that he would not be allowed remuneration for the services he had actually performed, especially where he relied upon the contract and did -not oiler to accept the reasonable value of his services.

In Chatfield v. Simonson, 10 Daly 295, where an attorney for one party in consideration of a sum paid to him, a portion of which he received without the knowledge of his client, released part of the subject-matter of the litigation to his client’s advorsarj, it was held that he thereby forfeited all claim to compensation for his services in that particular litigation, even though it did not appear that the client had suffered actual damage from the breach of duty by the attorney.

In Brackett v. Norton, 4 Conn. 517, it was held that if an attorney, after having obtained final judgment and execution, prevented the (collection of the execution by fraudulent conduct in violation of his duty as attorney, it would deprive him of all legal claim for his services in procuring such judgment and execution.

In Larey v. Baker, 86 Ga. 468, it was held that where an agent or attorney is unfaithful to his trust or violates his instructions, he is 'not entitled to any compensation.

In Andrews v. Tyng, 94 N. Y. 16, it was held, conceding that because of non-payment of fees attorneys might refuse to act, nevertheless, they, having waived default by acting thereafter, and their action being wrongful and adverse to their client, they were not entitled to compensation for any services in the suit.

The same rule applies, with even greater severity, in the case of an attorney than in the case of a trustee. Commissions are a compensation for the faithful discharge of duty; and when trustees violate their duty and commingle money belonging to their cestui que trust with their' own and use part or all of it for their own private purposes, they are not entitled to commissions. This is too axiomatic to need the citation of authorities to support it.

In Ingersoll v. Coal Co., 117 Tenn. 263, it was held that it is not the client alone who is concerned in the conduct of attorneys at law, but, also, the court and the public, and the issue is not whether the client has been injured but whether the conduct of the attorney has been contrary to the character of the profession and opposed to a sound public policy and to a proper and decorous administration of. the law. In that case, as the court remarked, the suit did not concern the clients especially, who would neither be benefited nor burdened by it; that they were interested in it in the same sense that the general public was interested, and not by their individual relation to it. Not so here. This is a matter in which clients are especially concerned, and, therefore, the rule of law voiced by the supreme court of Tennessee, in its application in the case at bar, is, that the clients are not alone concerned in the conduct of their solicitor, but, also, the court and the public, because the clients have been injured by the conduct of the solicitor, which has been contrary to the character of the profession and opposed to a sound public policy and to a proper and decorous administration of the law.

When it is remembered that Mr. .Abbett did not send his clients a check for the amount he collected for them, less his fee and costs, but concealed the fact of collection and converted the entire fund to his own use, and is only now in a position to pay it over because, since discovery, the compulsory process of this court has been laid upon him, he has forfeited all right to compensation for his services.

The result reached is, that Mr. Abbett is entitled to retain $13.94 for his disbursements for Mr. Norton, and seventy-eight cents for his disbursements for Mr. Richardson, guardian, or $14.12 in all, and the rest of the fund collected by him must be turned over forthwith to his clients, without any deduction for fees as solicitor or counsel, not excepting the fees for services included in the taxed bills- of costs. •

Mr. Abbott may consider himself fortunate that he is not visited with the costs of - these proceedings and a counsel fee to indemnify his former clients for their expenses in having thus to collect from him what he had collected for them. This was the course taken by this,court in Bullock v. Angleman, 82 N. J. Eq. 23. An examination of the opinion in that case will show that the solicitor was permitted to retain his fee agreed upon; but that was because his client made no objection to. its retention, and only demanded that he pay over the balance after deducting his fee. An examination of the pleadings will disclose this fact, although it is not stated in the opinion.

That the court has authority to exercise summary jurisdiction over its solicitors in matters such as that with which I am dealing in.the case sub judice is firmly established. The most conspicuous example is Lynde v. Lynde, 64 N. J. Eq. 736.

I have not said, and do not wish to be understood as intimating, that a solicitor or attorney may not with propriety deposit a check which he receives for and on account of a client in his individual account at his bank. All solicitors and attorneys do not keep bank accounts as such, and, even if they did, a conversion by one to his own use could as easily be accomplished out of a fund deposited to his credit as solicitor or attorney as in his individual name. What 1 do say, and I do not wish to be misunderstood about it, is, that it is the absolute duty of a solicitor or attorney to forthwith notify his client of a collection made for his account and to make remittance to him, less his proper charges, as soon as he reasonably can do so after the receipt of his client's money. The practice indulged in by some solicitors and attorneys of retaining money collected for clients for an indefinite period deserves the severest reprobation.


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    Anna G. McLaughlin, petitioner, v. Michael McLaughlin.
    [Decided May 28th, 1919.]
    1. In a suit lor divorce for desertion none of the time occupied by the pendency of a former proceeding for divorce by one of the parties agains! the other can be computed as part of the time of the desertion in the' later case; and this, whether the same party is petitioner in both cases or is petitioner in the later one and defendant in the prior one. or vice versa, provided the first suit was Iona, fide.

    2. If a party files a petition for divorce for desertion, and afterwards files a petition for divorce as for a constructive desertion upon the same underlying facts, the petitioner will be 'permitted to amend the first petition by substituting a charge of constructive desertion for the allegation of actual desertion, and to. dismiss the second petition.
    On petition for divorce. On motion to dismiss petition nunc pro tunc.

    -1 Ir. .1 [orris Bloom, for the motion.

      Mr. Edmund G. GasTcill, -Jr., contra.

   Walker, Chancellor.

On October 28th, 1916, the petition in this canso was filed. It charged the defendant with having deserted the petitioner in September, 1912, ever since which time, and for more than two years then last past, the defendant had willfully, continuedlv and obstinately deserted the petitioner. The defendant being served with citation and certified copy of the petition, filed an answer on December 21st. 1916, in which he denied-the desertion charged. On December 23d, 1916, on motion of petitioner’s solicitor, and by convent of the solicitor of defendant, this cause was referred to Hon. Joseph Thompson, advisory master, to hear for the chancellor and to report thereon and advise what order or decree should be made therein. The cause has since been pending but has never been brought to trial.

On October 30th, 1918, the petitioner commenced a new and independent -suit for divorce against the defendant by petition filed on that date, in which she alleged that in September, 1912, defendant commenced a course of cruel and abusive treatment toward petitioner and continued the same without provocation or just cause until she was compelled to cease cohabitation with him,- particularly, specifying defendant’s misconduct, and cruel acts.; wherefore, she alleged, that by the true intent and meaning of the statute in such case made and provided the defendant had ever since October 23d, 1916, and for more than two years then last past, willfully, continuedly and obstinately deserted her.

On March 18th, 1919, the petitioner gave to the defendant notice of a motion for an order to dismiss the above-entitled cause as of June 1st, 1918, and thereto attached an affidavit upon which the motion was based, the salient facts in which are that after the filing of the petition in this cause (the first petition) Mr. Bloom, counsel for the petitioner, who made the affidavit, learned that the petitioner had been mistaken in some of the facts given him, whereby the petition would not lie; and that the petitioner had caused a new petition to be filed (the second petition), alleging constructive desertion on the part of the defendant instead of actual desertion, as alleged in the first petition, and that, in answer, the defendant had set up the first petition being undisposed of, in bar of the second suit.

Just why the defendant’s notice is of an application to dismiss the first suit as of June 1st, 1918, I am unaware. The second petition, filed October 30th, 1918, alleges that petitioner was compelled by reason of the defendant’s extreme' cruelty to refuse to further cohabit with him; in other -words, that the desertion commenced on that date, which was two years and one week prior to the filing of the petition. If I should grant the order asked for and dismiss the first petition as of June 1st, 1918, then the parties would have been living separate and apart during the pendency of a suit for divorce between them up to and within four months prior to the commencement-of the second suit, and, under the statute, the desertion must have been willful, continued and obstinate for an uninterrupted period of two years next before the filing of the petition. This brings me to the question in the ease, which is, whether, as the first suit is still pending, there could be any obstinate desertion by the defendant of the petitioner between the time of the filing of the first petition; on October 28th, 1916, and the present time. I presume that the date mentioned- — June 1st, 1918 — is a mistake, and that the petitioner desires to have the first petition dismissed as of some date anterior to two years last past, expecting there!)}'' to avoid prejudice to the second suit by. the pendency of the first one.

Counsel for the defendant resists the motion upon the ground that there could) be no desertion'by the defendant of the petitioner during the period in which a suit for divorce was pending against him instituted by the petitioner, and relies upon Weigel v. Weigel, 63 N. J. Eq. 677; affirmed on opinion below, 65 N. J. Eq. 398; Johnson v. Johnson, 65 N. J. Eq. 606, and von Bernuth v. von Bernuth, 76 N. J. Eq. 494.

In Weigel v. Weigel the defendant pleaded that- part of the time during which she was alleged to have deserted her husband was occupied by the pendency of her suit against him for divorce for constructive desertion, and that as she could not have cohabited with him pending that suit without condoning the offence, she alleged that the time occupied by her suit should not be counted as part of the desertion. In that case her contention was decided adversely to her, but upon another ground, namely, that her suit was not brought in good faith, but was a fraud on the court, on the law and on the defendant; that, however, is immaterial to the present inquiry. It will, nevertheless, be observed that in the Weigel Geese the contention that the time occupied by the prior divorce case between the same parties could not be computed as any part of the period of desertion alleged hv the petitioner in the then instant case, was made by the defondant, who was the petitioner in the former suit, and who alleged that she could not.have cohabited with her husband during the pendency of her own suit against him without condoning the alleged offence. And that is quite different from one married party filing a petition for divorce against the other spouse, for desertion, and, subsequently, filing another suit for the same cause of action while the former one is still pending, because the party in the first suit could answer denying guilt, and that matter of defence could be pleaded in the second suit as well as in the first one. In other words, a defendant charged with a matrimonial offence can hardly say that he or she cannot safely cohabit with the other one, when, in fact, the other party is not charged by the defendant with any dereliction which would entitle the defendant to a divorce. In still other words, a defendant who is complained against and asserts his innocence has nothing to condone, condonation being a privilege of the injured "party, not of the injurer. And if the defendant were guilty he would not be prejudiced by the former suit in which he was also a defendant.

In the domain of reason it may well bo that the first suit pending between the parties in the case sub jiulice ought to" be no bar to the prosecution of the second suit; but Vice-Chancellor Grey, in the case of Johnson v. Johnson, appears to have decided otherwise. There the petitioner brought suit for divorce against his wife for desertion, and it appeared that each party had previously sued the other for dissolution of the marriage tie, the petitioner for adultery against the defendant, which petition was dismissed, and the defendant for desertion against the petitioner, which also was dismissed; but both of these cases were pending during a portion of the time that the petitioner in the then instant case urged before the court was the period of desertion for which he was entitled to a divorce, and Vice-Chancellor Grey observed (at p. 60S) that no portion of the time during which either of the previous suits between the parties were pending could be comparted in making up the, term of the two years during which the desertion of the defendant must have been willful, continued and obstinate to entitle him to a decree.

In von Bernuth v. von Bernuth the original suit was brought by the wife and in it the husband filed an answer in bar and aiso pleaded a cause of action for divorce against her by way of cross-petition. This was as though he had brought an independent suit against her, and it was so treated by the vice-chancellor, who observed that some portion of the time relied upon by the husband for his cause of action was occupied and taken up by the original suit of the wife; and he held that if the rule of Weigel v. Weigel and Johnson v. Johnson were applied, the cross-petition would have been prematurely filed, but, that as the petition of the wife was filed and prosecuted in bad faith, the case came within the exception in the Weigel Case, and the wife in the case before him (you Bernuth) was not allowed to set up the pend-ency pf her suit in bar of her husband’s right, and he was granted a decree.

In Marsh v. Marsh, 14 N. J. Eq. 315, Chancellor Green held that it is legally improper for the parties to cohabit together during the pendency of a suit Ijy the husband against the wife for divorce on the ground of adultery. And there, as in the Johnson Case, the rule was applied to one who was defendant in the two suits, the then instant one being for desertion and the jn'ior one, which was defeated, for adultery.

In Chipchase v. Chipchase, 48 N. J. Eq. 549, it was held that a wife who is prosecuting an action against her husband for divorce for alleged adultery, cannot maintain that the separation pending such suit is obstinate on the part of the husband. This is a definite decision, to the effect that the party defendant is entitled to the benefit of the doctrine that his separation from his wife pending a suit by her against him is not obstinate.

In Drayton v. Drayton, 54 N. J. Eq. 298, Chancellor McGill held that if a suit for divorce for adultery be brought promptly after the separation of the. accuser from the accused, and in good faith, and be prosecuted with diligence, then in a subsequent suit for desertion by the accused, the time consumed in the former proceeding will not be computed as part of the statutory period necessary to the desertion which will authorize a decree for divorce.

The only reason assigned in the eases as to why the time of the pendency of the first proceeding cannot be computed as part of the time of the desertion in the later one is, that pending the first one the petitioner could not cohabit with the defendant without condoning the offence charged by the former. It is to be observed that the defendant, who is either innocent or guilty, has, in neither case, anything to condone, and, therefore, it may seem that the reason does not apply where the same party is defendant in both cases. However, the doctrine that the time consumed in a previous divorce suit cannot be counted as any part of an obstinate desertion in a subsequent one between the same parties, is too firmly established in this court to now be questioned.

The case sub judien is one for the same cause of action as was the original suit. Therefore, instead of filing a new petition, the petitioner could have applied for and obtained leave to amend her petition in her original suit, by alleging the cause for action set up in the instant case; and this could be dbne at or after the trial as well as before.

The facts are these: In the original petition it is set up that the defendant deserted the petitioner in September, 1912, and continued to do so to the time of filing the petition, October 28th, 1916. In the second petition it is set up that the defendant, in September, 1912, commenced a course of cruel and abusive treatment toward petitioner which 'resulted in petitioner being compelled to cease cohabitation with him (not saying exactly when), and that defendant beat and assaulted her on various occasions, for which she was compelled to have him arrested, and on his promise to do better she resumed cohabitation with him, but on or about October 23d, 1916, he came home in an intoxicated condition and severely beat her, whereupon she again had him arrested and ceased further to cohabit with him, .alleging that within the intent and meaning of our statute the defendant has since the last-named date willfully, continually and obstinately deserted her. It is apparent at a glance that this is the same desertion which the petitioner averred in her first petition. And the case at bar is not the first one in which such mistakes have been made.

In Metzler v. Metzler, 69 Atl. Rep. 965, the petition charged .a desertion by the defendant which, to the common understanding,'Chancellor, Pitney remarked, means that the defendant physically abandoned the petitioner. However, the case made bj the proofs and found by the master was that on the date referred to the petitioner left the defendant because of his long continued and cruel treatment of her, therefore a case of constructive desertion on the part of the husband was made out; but, in the view of the learned chancellor, it was a different one from that averred in the petition, and the then Divorce act, like the present one, required that the petition should plainly and fully state the cause or causes of the application. It was further held that the defect could be cured by amendment, and the petitioner was allowed to take an order permitting the filing of an amended petition, and, upon that having been done, a further order, reciting that making of the master’s report and the filing of the amended petition, and requiring" the defendant to show- cause at a future date why a decree should not be made against him for constructive desertion in pursuance of the master’s report. See, also, Thomas v. Thomas, 74 Atl. Rep. 125.

The present Divorce act (P. L. 1907 p. 474; Comp. Stat. p. 2021 § 19) provides that the chancellor may permit either party to amend his or her proceedings in the case, either in matters of form or substance, and proceed to give judgment according to the merits of the case. Under this liberal provision the petitioner may apply for leave to amend the petition in the first- suit, which is pending and already referred to an advisory master, and dismiss the second suit, if she shall be so advised. See Metzler v. Metzler and Thomas v. Thomas, supra.

The pending motion to dismiss nunc pro tunc will he denied, but without costs.


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    William L. Strong, executor of and under the last will and testament of Fannie M. Mathewes, deceased, v. Emma C. Dann et al.
    [Decided July 25th, 1919.]
    A testatrix gave to her trustee a certain sum for three nieces, the income thereof to be paid to them in equal portions yearly, with remainder over in case of the death of one or more of them, and permits the nieces to acquire their shares absolutely upon their simple desire and request for advances of the same, if the trustee shall deem it proper to make such advances in Ms discretion. — Held, the trustee having in the exercise of his untrammelod discretion acceded to such requests of the nieces the advances may be made.
    On final hearing on pleadings and prooís.

      Mr. Freeman Woodbiidge-, for the complainant.

      Mr. Ellis L. Pierson, for the infant defendants.
   Walker, Chancellor.

This suit was brought-by the executor of the last will and testament of Fannie M. Mathewes, deceased, for construe Lion of her will and directions as to the disposition of the one-half part of the residuary estate in the hands of the executor as trustee. Ou the death of Mrs. Mathewes’ husband, which has taken place, the sum of $20,613.29 became distributable, one-half to the executor, individually, a nephew of the deceased, and to Emily L. Strong and Mary D. Strong, her nieces; the remaining one-half to lie retained by the executor as trustee for the testatrix’s other three nieces, Emma C. Dann, Edna M. Cook and Mary S. Cook (now Reid), to pay over j^early the net income to the three nieces in equal portions, and in case of the death of one or more of them leaving lawful issue, then to pay over the share ov shares held for them to such lawful issue, share and share alike, per stirpes and not per capita, and in case such deceased niece or nieces should leave no lawful issue, then the trustee should retain the share or shares for the benefit of the surviving niece or nieces, and pay over the net income and profits of the said share or shares to the survivor or survivors; and in case at any time any one or more of the three nieces should desire advances to be made to them, or either of them, out of the share or shares in the hands of the trustee, and he should deem it proper to make such advance or advances, then he is fully authorized and empowered to do so at his discretion. Of the three nieces two are married, namely, Emma C. Dann and Mary S. Cook Eeid. Mrs. Dann has two children, Margaret Dann and Edna May Dann, and Mrs. Eeid has two children, Charles Harmon Eeid and Henry Cook Eeid. All the children are ijrfant defendants to this suit. The clerk of the court has been appointed their guardian ad litem, and Ellis L. Pierson, Esquire, appears for him and them as solicitor and counsel.

The bill avers that the adult nieces of the testatrix, Emma C. Dann, Mary S. Cook Eeid and Edna M. Cook, now desire the complainant, as trustee, to pay over to them their full shares of the estate bequeathed to them in trust, as above stated; and the complainant avers that he deems it proper to make such advance or advances.

The prayer of the bill is that the court will construe the will of the late Mrs. Math ewes and direct the complainant as to his duties in the premises, and particularly whether or not he should pay over to the adult nieces each a one-third of the one half of the balance remaining in his hands as trustee, under the clause of the will authorizing advances to be made.

The exact language of the will invoked is:

“In case, at any time, - any one or more of my said nieces, Emma O. Dann, Edna M. Cook and Mary S. Oook, desire advances to be made to them, or either of them, out of and from the part or parts, share or shares, in the hands of the said William L. Strong, and he shall deem it proper to make such advance or advances, then I fully authorize and empower him to make such advance or advances at his discretion.”

My first impression was-that an advance of the whole of the share of any one of the nieces could not be made to her at any one time, but that advances might only be made to her piecemeal, from time to time, as she might require an advance, and if the trustee should, in the exercise of sound discretion, deem it proper to make such advance. But, upon reflection, I have reached the opposite conclusion.

In Bacot v. Wetmore, 17 N. J. Eq. 250, Chancellor Green observed (at p. 258) :

“Where the words are clear, the safest course, in the language of Lord Eldon, is to abide by the words; unless upon the whole will, there is something amounting almost to demonstration,, that the plain meaning of the words is not the meaning of the testator.”

In Theob. Wills ^61, it is said:

“Where a large discretion is conferred upon trustees, the court will not interfere with the exercise of 1he discretion so long as it is honestly exercised. It matters not whether the discretion is expressed in the form of a trust or of a power.”

If the testatrix had provided that if any one or more of her nieces should desire advances for any of the necessaries of life or other purpose, and the trustee was authorized in his discretion to make such advances, then surely only so much as might he reasonably necessary on a given occasion could, in the exercise of sound discretion, be advanced; and the court could control the situation, either compelling a proper advance refused or restraining an improper one threatened to be made; but, by the terms of the will in question in this case, advances may be made by the executor at his discretion whenever any one or more of the beneficiaries desire them to be made, there being no limitation as to the purpose for which they may desire to use the funds; nor any fetters upon the discretion confided in the trustee to make the advances desired. The argument that advances may be made out of and from the share or shares in the hands of the trustee means that no share in its entirety can be advanced at any one time, and that there must necessarily be one or more advancements, is met by the fact that there is no pre.scription of any particular time which, must elapse between advancements, and, therefore, they could be demanded in quick succession, and if the trustee, in his unlimited discretion acquiesced, the whole share in trust for any one niece might be advanced to her in an almost inappreciably short time. And as the-plain meaning of the terms used by the testatrix are that each niece may acquire her whole share, without limitation as to time, by desiring and requesting advancements in which the trustee acquiesces, the only rational view of the case is that that which may indirectly be accomplished may be directly done; that is to say, that instead of advancing an entire share to one of the beneficiaries in several payments in the course of a short time, it may be done at once.

In Theob. Wills (at p. 495) it is said:

“If a discretion is given to trustees to apply a fund for the benefit of an individual, and the mode of application is so wide as to lead to the inference, that the primary object was to benefit the individual, he may be. entitled to the fund. * * * This may be the case, even if there is a gift over of so much as is not applied.”

This meets the gift over to issue, or to surviving -nieces for want of issue left by any deceased ones.

The question sub jit Ace is not one as to the guau him of the estate equitably vested in these beneficiaries under the will of the testatrix, hut as to the discretionary power of the trustee, which is not in terms made to depend upon any status, but is entirely discretionary. In such a posture the court has no power to command or prohibit the exercise of the discretion confided to the trustee if his conduct lie bona ficle, and there is neither proof nor suggestion of mala fides in this ease. See Read v. Patterson, 44 N. J. Eq. 211, 219.

The prayer of the bill that-the court construe the will of the late Mrs. Mathewes in the respect above discussed will be granted, but that part of the prayer which asks the court to declare whether or not the trustee should pay over to the adult nieces the sitares he holds in trust for them will not be granted. The discretion is one confided to the trustee, and is for .him to exercise; in fact, he had exercised it, as appears from the bill and testimony. It will, however, bo declared that he has the power, in his discretion, to grant the request of the testatrix's nieces. This suit for the construction of the will is maintainable under the Chancery act, 1915. P. L. 1915 p. 184 § 9. See In re Ungaro, 88 N. J. Eq. 25; Snyder v. Taylor, 88 N. J. Eq. 513.

Decree will be settled on motion and on notice.