author: Van Winkle, A. M.

text:
    Herman Storf, petitioner, v. Josephine Rose Papalia, otherwise Josephine Rose Storf, defendant.
    [Decided May 3d, 1946.]

      Mr. Franje Q. Schlosser, for the petitioner.

      Mr. Jach Prizzia, for the defendant.
   Van Winkle, A. M.

The parties, who apparently were then domiciled in New Jersey, were married on May 11th, 1935, in New York City, by a deputy city clerk. In answering one of the questions on the application for the license, defendant declared that there was “no legal impediment” to her marrying. The fact is that the defendant had been theretofore twice confined at the New Jersey State Hospital, (keystone Park. The parties lived in New Jersey as husband and wife till October or November, 1940, when the defendant was again committed to an asylum for the insane, this time to the Hudson County Mental Diseases Hospital at Laurel Hill, where she still is.

Petitioner avers that the defendant was mentally incapacitated to marry at the time that she was married to him and that he had no knowledge that she was so incapable, nor that she had been twice confined as an insane person, until he casually was put on suspicion after the defendant was again committed in 1940, when his solicitor’s investigations in 1943 disclosed the previous confinements. How, it appearing to him that the defendant is to continue in confinement apparently permanently, he brings his suit to annul the marriage.

The petition contains three causes of action; and the statement of counsel for the petitioner is that “all are grounded upon the general equity jurisdiction of the court, and that canse 1, in addition, is also based upon our annulment statute R. 8. 2:50-l; N. J. 8. A. 2:50-l,” which reads as follows:

“Decrees of nullity of marriage may be rendered in all cases, where: * * * (d) the parties or cither of them were at the time of marriage incapable of consenting thereto and the marriage has not been subsequently ratified, provided that where the party capable of consent is the applicant such party shall have been ignorant of the other’s incapacity at the time of the marriage and shall not have confirmed the marriage subsequently to the regaining of capacity by the other party.”

This statute, however, does not apply, for the marriage was made in Hew York, and its validity is to be determined by the law of Hew York. While the validity of the marriage is to be determined by the law of Hew York, as of the time of the marriage, no pertinent law of Hew York was pleaded nor was there any proof of any such law, nor was any pertinent Hew York statute or law called to my attention. So the presumption will be indulged (on the basis of the Hew Jersey decisions, which may be found referred to in Kelly v. Kelly, 134 N. J. Eq. 316 (at p. 319); 35 Atl. Rep. (2d) 618. (1944); that common law principles prevailed in Hew York at the time of the marriage in 193S. See Restatement, Conflict of Laws, f 136, Law Governing Hullity and comment thereunder.

Counsel for the petitioner contends that because of the insanity of the defendant at the time of the marriage, the marriage is void, and so petitioner is entitled to a nullity decree independently of any statute or other considerations.

An attempt to firmly define or to adequately classify “void” marriages and “voidable” marriages in such a way that inevitable legal consequences follow, does not help us in the decision of this suit. The pages in the Bishop and Schouler textbooks where there are discussions of classification make unsatisfactory reading. And the difficulty and the fruitlessness of such discussions are somewhat referred to by Mr. Justice Heher in Lindquist v. Lindquist, 130 N. J. Eq. 11; 20 Atl. Rep. (2d) 325 (1941).

While our annulment statute as to incapacity does not apply in this suit, I think, however, that a petitioner seeking a nullity decree for incapacity under the general equity jurisdiction of this court needs to prove to the same extent at least that he would be called upon to prove if the statute did apply. In short, even if a marriage may be classified as “void” a petitioner, the competent party to the marriage, may have acted with respect to the facts, or with relation to the incompetent party, or to the marriage, in such a way that any right to a nullity decree that he might abstractedly have would be canceled.

Bor example, if he had knowledge of the insanity at the time of the marriage, or if thereafter, on acquiring knowledge, he ratified or confirmed the marriage by continuing to live as a husband with the insane wife, he is not to have a nullity decree. His coming into court with unclean hands or an application of the doctrine of estoppel may lead to a refusal of a decree. (See Tyll v. Keller, 94 N. J. Eq. 426; 120 Atl. Rep. 6 (1922), in which case our Court of Errors and Appeals was deciding respecting a marriage characterized by Chief-Justice Gummere as a “void” marriage; and the doctrine of which case has not since been departed from in any way.)

Dr. Collins, alienist, clinical director of the Hew Jersey State Hospital, Greystone Park, examined the defendant, then nineteen years old, when she was first admitted to the hospital on January 3d, 1927. His diagnosis then was “manic depressive and potentially a dementia praecox case;” and he examined her again on her readmission to the hospital on June 30th, 1932, when his diagnosis was “dementia praecox hebephrenic type.” The defendant was paroled on Hovember 26th, 1934, as “improved.” Being paroled meant that she was “placed in the custody of some responsible person” and kept “under supervision” by means of “the hospital’s social service department, all young girls, college graduates, who were to visit the patient and watch how she was adjusting herself to her outside surroundings.” Dr. Collins testified that at the time of the marriage the defendant was afflicted with “a chronic progressive mental disease,” that “while she would be aware of what she was doing in getting married on May 11th, 1935, she did not then have the mental capacity to appreciate the nature of the marriage contract.”

On the question of knowledge by the petitioner of the insanity of the defendant at the time of the marriage—the petitioner testified that the defendant’s father and her brother-in-law “beat him up” while he was walking on the street with the defendant a short time before the marriage. He said he knew no reason for the beating. “They says to me ‘stay away from her5 that was all was said, they told me they did not want me to go out with her;” and he testified further, “The next night the defendant told me gee, that is the way they beat me up, I says ‘that is all right Josephine,’ she came told my mother, my mother even said ‘Gee, feel sorry for the poor girl.’ ” This mother died some time ago.

The version of the defendant’s father concerning this episode was different. This father, a somewhat excitable witness without much command of the English language, testified in effect that he and the defendant’s brother-in-law, and apparently with others, encountered the defendant and the petitioner on the street when the father, who considered the petitioner unfit to marry, shouted out to the petitioner that the defendant had been “two time institution insane.” Apparently there were “a lot of people” on the street at the time and there was a “yell” and apparently the petitioner and the defendant either or both, ran away, and there was a pursuit. Hobody testified respecting this occurrence except the petitioner and the father. It is not clear whether the defendant’s mother was present. However, the brother-in-law referred to, and also the mother of the defendant, who apparently could have testified on other matters, were not called as witnesses for the defendant.

A trial judge in this court, acting as a finder of facts, has the same rights as a jury to give significance to the failure of a party to call an available witness who would normally be a witness for such party. (See Robinson v. Equitable Life Assurance Society, 126 N. J. Eq. 242 (at p. 247); 8 Atl. Rep. (2d) 600 (1939); also Breheny v. Essex Co., 134 N. J. L. 129; 45 Atl. Rep. (2d) 700 (1946).

The petitioner is a laborer. The application for the license to marry discloses that the petitioner stated therein that he was a “coal carrier.” The defendant’s brother testified that the petitioner “was not welcome in the family;” and he added, “I do not believe he was my sister’s equal because he was a drunkard, had a bad reputation.” In this testimony we may find a reason why the petitioner was “beat up” with no relation to the insanity or previous commitments of the defendant. It does not appear that the father of the defendant or the brother-in-law followed up in any way with any more information given to the petitioner of the defendant’s .insanity or her confinements. It may be that they felt in the period after the marriage that not only had the defendant “improved” but also that she had recovered.

On the question of ratification—it being clear that the defendant is not to be held as guilty of false representations inducing the marriage—we may say that the evidence given for the defendant to show a ratification or confirming by the petitioner of the marriage was given on an assumption that the defendant lacked capacity at the time of the marriage, or on an assumption that when all the evidence should be in such lack would have been established. Otherwise the question oi ratification would not need to be considered.

The ratification evidence so called, came from the defendant’s brother, who testified that some months after the marriage the petitioner “who was quite handy doing odds and ends” around the brother’s home, was there, as he had been “pretty regularly” to “help me out on my afternoons off;” and this brother testified further in part as follows: “While he was in the backyard fixing lawn one day and my sister and my wife were in the kitchen I went outside spoke to him; so I said to him ‘Now Herman you finally got married against our objections so I says you know the girl has been sick and she was committed at Greystone Park institution and he says 'Well that is bygones is bygones I do not care, I love my wife, going to stick by her;’ so I just told him to be careful how you treat her, otherwise one little incident that she might not like may cause her to get another breakdown and he says 'All right I will be as careful, as good as I can to her.’ ”

The petitioner’s testimony was that he had never heard of the defendant’s confinements in Greystone Park until after she was committed in 1940 except casually and as hereinafter referred to. However, if we should accept the testimony of the defendant’s brother as true it appears that no comparatively full revelation of the defendant’s condition was made by the brother. Telling the petitioner that the defendant had been “sick,” and warning against another “breakdown” was not telling the petitioner that at the time of the marriage the petitioner was afflicted with a “chronic and progressive mental disease” or that she was then on parole from Grey-stone Park under supervision. Probably, although the defendant’s father and brother and brother-in-law all thought that the defendant was “not fit to get married,” because of her mental condition, they had no precise knowledge of the nature of her affliction. Constantly, we have wives testifying in matrimonial causes that they have had “nervous breakdowns.” Ordinarily a “breakdown” does not connote insanity of the kind with which Dr. Collins testified that the defendant was afflicted at the time of the marriage.

The petitioner testified that the first time he heard of the defendant’s previous confinements was a year or so after the marriage when the defendant and her sister had an argument and the sister said “Herman you do not know but Josephine was in Greystone Park already.” The petitioner testified “I was supposed to go up Thanksgiving Day in house and defendant’s brother told me why did not go up, says 'Oh do not mind her, she is silly herself’ ” (referring to the sister, Mrs. Matzig) “after that the same Mrs. Vera Matzig went out to Greystone Park herself.” "While the brother testified that he did not say of defendant’s sister “Oh do not mind her she is silly herself,” he did testify that the petitioner told him that the sister had said this. The brother testified that he himself said, “I told him I was not interested at the time what my sister had said, that I was only interested in his coming for dinner the way he had promised to come.” Whether or not ■fee brother so intended, it appears that he brushed aside the effect of the sister’s statement 6n the petitioner. In what idle brother testified he said to the petitioner there was evasion or concealment rather than revelation.

Counsel for the petitioner contends that the defendant was guilty of fraud in concealing the faet that she had previously been confined as insane, in concealing her insanity, in stating in the application fop the license to marry that there was “no legal impediment” to her marrying; and he cites the New Jersey statute (B. S. 37:1-9; N. J. S. A. 37:1—9) which prohibits “the issuance of a license to marry to a person who is or has been an inmate of an insane asylum * * * unless it appears that such person has been satisfactorily discharged therefrom.” As to this contention we have ho proof that New York had a similar statute at the time of the marriage; and even if there had been such proof it should be held that such a statute is but a police regulation, not affecting the validity of the marriage. See Buechler v. Simon, 104 N. J. Eq. 572 (at p. 577); 146 Atl. Rep. 420 (1929). Moreover, it should be said that concealment of previous incarceration in a lunatic asylum, standing alone, is not a ground for annulment, lb id.

"When a contention is made that a party to a contract of marriage was incapable to contract because of insanity and also that such person was guilty of fraud by false representations or suppression of fact which induced the marriage, the question at once arises: Is such person capable of making representations or suppressing in such a way as to be responsible ? We notice that the Chancellor in Daniele v. Margulie, 95 N.J.Eq. 9; 121 Atl. Rep. 772 (1923), had this thought; and Vice-Chancellor Baekes in the nullity suit of Buechler v. Simon, supra, held that to succeed for fraud a party needs to show a guilty suppression; and he found that all the cases of annulment for fraud rest on deceit.

I determine that the petitioner is not entitled to a nullity decree for fraud. However, I determine that the defendant lacked mental capacity to marry on May 11th, 1935; that the petitioner was then ignorant of such lack; and further that the petitioner did not ratify or confirm the marriage after knowledge of such lack; and I will advise a decree of nullity on these grounds.


source: Caselaw Access Project

author: Smith, Joseph L., C. C. J.

license: Public Domain

text:
    CARMELA ZANZONICO, PLAINTIFF, v. MICHAEL ZANZONICO ET AL., DEFENDANTS.
    Decided March 29, 1946.

      For the plaintiff, McCarter, English & Egner.

    For the defendant Joseph Zanzonico, Robinson & Morris.

   Smith, Joseph L., C. C. J.

This case is submitted to the court without a jury. The facts are found to be as stated in the agreed stipulation of facts which are made a part hereof as if fully set forth herein.

This is an action brought by the plaintiff, Carmela Zanzonieo, in which the plaintiff demands of the defendants, Michael Zanzonico, individually, and as executor of the last will of Antonio Zanzonico, deceased, Joseph Zanzonico, Ealph Eusso, Yincenzo Guzzo and Manuel Monteiro, the possession of a tract of land, with appurtenances, situate in the City of Newark, County of Essex and State of New Jersey, and known as Number 295 South Seventh Street, together with the sum of $2,000 for mesne profits and damages in the sum of $10,000.

On June 26th, 1933, property described in the complaint was conveyed to Antonio Zanzonico and Carmela Zanzonico, his wife, thereby creating an estate by the entirety. Subsequently Antonio. Zanzonico executed two mortgages covering said property, in which Carmela, his wife, did not join. The first of said mortgages was executed March 31st, 1936, and the second, July 27th, 1938.

A decree for money was obtained in the New Jersey Chancery Court by Antonio Zanzonico against Carmela Zanzonico,' after the mortgages mentioned above were executed. A writ of execution was issued on that decree and on April 18th, 1939, the sheriff of Essex County purported to sell “all of the right, title and interest” of Carmela Zanzonico in and to the premises described in the complaint, in order to satisfy the writ.- Antonio Zanzonico was the successful bidder at the sale and a sheriff’s deed was delivered to him describing the same property which is embodied in the within complaint. The plaintiff does not question the regularity of the procedure by which the writ of execution was issued, the sale held, and the sheriff’s deed delivered.

Antonio Zanzonico died on January 20th, 1942, devising all of his, property to Michael Zanzonico, co-defendant herein. At the time of the death of Antonio Zanzonico, Carmela Zanzonieo, the plaintiff, was his wife. The defendant Joseph Zanzonico is a mortgagee in possession.

The question for this court to determine is the quantum of the estate which passed by the sheriff’s deed under the writ of execution. It does not appear from a review of the cases that this precise point has been decided heretofore by the courts of this state.

The decisions, in other jurisdictions, are in conflict, due to the varying interpretations of the effect of statutes concerning the property rights of married women. Massachusetts, in Lisker v. Askins, 266 Mass. 498; 151 N. E. Rep. 513, holds that statutes enabling married women to hold and dispose of real property in the same manner as if they were sole, are inapplicable to estates by the entirety, and that the wife’s interest in real estate held by the husband and herself, as tenants by the entirety, cannot, during their joint lives, be attached and sold by the wife’s creditor. The same conclusion has been reached in Pennsylvania, where, in the case of Beihl v. Martin, 236 Pa. 519; 84 Atl. Rep. 953, the court held that the expectancy of survivorship of a man holding an estate by entireties, with his wife, is not subject to a lien in favor of his individual judgment creditors.

Under the Married Women’s Property Act of Delaware, that state has held that a judgment against the husband creates no lien upon property held by husband and wife as tenants by the entireties. Hurd v. Hughes, 12 Del. Ch. 188; 109 Atl. Rep. 418.

The law of Maryland is to the same effect and holds that a tenant by the entireties, has no separate interest which can be subjected to a lien of a judgment against him alone and seized and sold on execution. Blenard v. Blenard (Md.), 45 Atl. Rep. (2d) 335.

On the other hand, Hew York, in Hiles v. Fisher, 144 N. Y. 306; 39 N. E. Rep. 337, holds that the husband has a right to mortgage his interest, which is a right to the use of an undivided half of the estate during the joint lives of husband and wife, and to the fee in the event he survives his wife. A foreclosure of the mortgage entitles the grantee to become a tenant in common with the wife, during the joint lives of husband and wife, and owner in fee, in the event the husband survives the wife. See, also, Bertles v. Nunan, 93 N. Y. 153; Moore v. Benson, 167 Ark. 134; 268 S. W. Rep. 609; Ganoe v. Ohmart, 121 Or. 116; 354 Pac. Rep. 303.

The weight of authority favors 'the Massachusetts rule as is stated in 30 Corp. Jur. (at p. 573), § 106 (6), as follows:

“But the weight of authority is to the effect that, where real property is held as an estate in entirety, the interest of neither spouse is liable for the debts of the other, a conveyance by the husband and wife, jointly passes title to the property, clear of any claim of creditors of the husband; a judgment against one spouse alone is not, during the joint lives of the tenants of the estate, a lien on the land, and during coverture there can be no sale of any part on execution against either.”

41 Corp. Jur. Secundum, tit. “Husband and Wife ,” § 34 (at p. 471), states that: “the right of the survivor to the whole estate is merely an incident of an estate by the entirety and does not constitute a remainder, either vested or contingent.”

At page 475 of the same volume, we find the statement that:

“Where the common law rights and disabilities of both husband and wife attach to the interest and title of each arising under a tenancy by the entirety, the wife’s interest cannot be attached and sold by the wife’s creditor during the joint lives of husband and wife, since the creditor cannot do that which the wife cannot do.”

A conveyance of real property to a husband and wife creates an estate by the entirety and the conveyance is to the unity of husband and wife. Bultlar v. Rosenbluth, 43 N. J. Eq. 651; 9 Atl. Rep. 695. The conveyance in estates by the entirety being to the unity, the existence of the marital relation at the time of the conveyance is essential. Den v. Hardenbergh, 10 N. J. L. 42. The right of survivorship exists between the husband and wife since the estate belongs to the unity and the right of survivorship cannot be defeated by any conveyance which either party may make individually. Den v. Gardner, 20 Id. 556.

At common law real property held by the entirely is subject to seizure and sale by tbe husband’s creditors to the extent at least of the husband’s right to the possession and use of the property, during the joint lives of the spouses. Washburn v. Burns, 34 N. J. L. 18. But the wife’s interest in real property held by husband and wife as tenants by the entirety cannot during their joint lives be attached and sold by the wife’s creditor. Lisker v. Askins, supra; 41 C. J. S., tit. Husband and Wife,” 471, § 34.

The Married Woman’s Act of 1852 in so far as it affects an estate by the entirety, gives the wife her own half of the rents and profits and limits the husband to a half interest therein during their joint lives. The statute, N. J. 8. A. 37:2-l2, which gives married women control over their individual property as though unmarried, was not intended to change the nature or character of estates held by married women. However, our highest court has held that an estate by the entirety is essentially a tenancy in common, terminated on the death of either, with remainder in fee to the survivor, and that the right of the husband may be transferred, and that partition may be had, but without in any way affecting the common law right of survivorship. Schulz v. Ziegler, 80 N. J. Eq. 199; 83 Atl. Rep. 968.

Our Court of Chancery with respect to an estate by the entirety stated that while the wife lives and is of sound mind, nothing short of a written instrument signed by her, will pass her estate. Kip v. Kip, 33 N. J. Eq. 213.

In the case of Schulz v. Ziegler, supra, the court held that although the right of the husband in an estate by the entirety could be transferred by conveyance to a third party, the third party would become a tenant in common with the wife in the place of the husband for the joint lives of the husband and wife. In this ease, Vice-Chancellor Walker said, 80 N. J. Eq. (at p. 200) ; 83 Atl. Rep. 968:

"The father’s conveyance to the daughter did not operate in anywise to limit the estate of the wife or her right to the survivorship and it seems that it will not defeat his right of survivorship. * * * If the premises should prove not to be susceptible of division between the parties, and shall be ordered to be sold, the purchaser’s estate will terminate upon the death of either Mr. or Mrs. Ziegler.”

On appeal, Mr. Justice Parker, 80 N. J. Eq. (at p. 201); 83 Atl. Rep. (at p. 969), said:

“In Buttlar v. Rosenbluth, 42 N. J. Eq. 651; 9 Atl. Rep. 695, it was decided that by virtue of the Married Woman’s Act, the estate by entireties was affected in such a way as to endow the wife with the capacity during the joint lives, to hold in her possession as a single female one half the estate in common with her husband; the right of survivorship still existing as at common law. * * * The essential point guarded by our decision was the preservation of the right of survivorship as at common law.

“In Zubler v. Porter, 98 N. J. L. 444; 120 Atl. Rep. 194, the husband’s interest in an estate by the entirety was sold at an execution sale and was purchased by the wife as trustee for a minor child. In speaking of the sheriff’s deed, Chancellor Walker said, 98 N. J. L. (at p. 447); 120 Atl. Rep. (at p. 196), ‘this conveyance divested out of Mr. Butterworth and vested in Mrs. Butterworth, as trustee, the former’s estate in the land as potential tenant in common with her for the joint lives of both of them, leaving him only the remainder of the entire estate in the event of his surviving her.’ ”

The right of survivorship and the right to the use and possession of the property during the joint lives of the husband and wife are separate interests in the estate and the Married Woman’s Act has been interpreted by our courts to affect only the latter. In Washburn v. Burns, supra, Chief Justice Beasley, speaking for the court, said, 34 N. J. L. (at p. 20) :

“It is-true that the husband cannot alien any part of the estate which he holds in the same right with his wife. To do that would be to sever its unity and thus destroy its peculiar characteristics. The reason he caDnot do this is that it would convert the estate into a tenancy in common and defeat the right of survivorship. But the husband has an interest which does not flow from the unity of the estate, and in which the wife has no concern. He is entitled to the use and possession during the joint lives of himself and wife.”

This case evidently overlooked the effect of the Married Woman’s Act in giving the wife her onedialf interest in the rents and profits.

With reference to the Married Woman’s Act of 1853, Mr. Justice Van Syckel, in Buttlar v. Rosenbluth, supra, said, 42 N. J. Eq. (at pp. 653 and 657); 9 Atl. Rep. (at p. 696) :

“The statute does not purport to deprive or limit the estate husband and wife shall take in lands conveyed to them jointly. It does not charge or modify in anywise the signification or effect of terms used in common law conveyances. * * * I think, therefore, that the jnst construction of this legislation, and the one in harmony with its spirit and general purpose, is that the wife is endowed with the capacity, during the joint lives, to hold in her possession, as a single female, one half the estate, in common with her husband, and that the right of survivorship still exists as at common law.”

In Vunk v. Raritan River Railroad Co., 56 N. J. L. 395; 28 Atl. Rep. 593, the court held that the effect of the Married Woman’s Act upon an estate by the entirety was to endow the wife with the capacity, during their joint lives, to hold in her possession as a single female one half the estate in common with her husband, and the right of survivorship subsisting as at common law. The Court of Errors and Appeals in Hopper v. Gurtman, 126 N. J. L. 263 (at p. 276); 18 Atl. Rep. (2d) 245, 252, by Mr. Justice Heher, said:

“It is the prevalent rule that during coverture, an estate in lands by the entirety is not reachable by execution upon a judgment against either spouse, since they are seized of the whole, and not of a moiety or share, for each is seized per tout et non per my, and, in contemplation of law, there is but one estate held by one person. Yet it is the settled rule in this state that each has an alienable estate subject also to execution.”

It appears, therefore, that the alienable estate subject to-execution extends only to the use and possession, rent and profits of the lands which each tenant by the entirety enjoys for the period of their joint lives. This court therefore holds that the right of survivorship is unaffected by the Married Woman’s Act, and that it exists as at common law. At common law the right of survivorship of the wife, in an estate by the entirety, was not subject to execution. The common law incidents of the marriage relation as they affect an estate by the entirety were not extinguished by the Married Woman’s Act, as it must clearly appear that such was the intent of the legislature before our courts will so rule. In the instant case, the sheriff’s deed passed the right of the wife to the rents and profits in the lands for the period of the joint lives of Mr. and Mrs. Antonio Zanzonieo. Her right of survivorship remained. It is subject to the principles of the common law and by them, the plaintiff, Carmela Zanzonico, is entitled, her husband being dead, to the possession of the whole premises.

Judgment may be entered accordingly.


author: Deewen, C. P. J.

text:
    Hudson County Court of Common Pleas.
    EUGENE McNABOE, PETITIONER-APPELLANT, v. GENERAL MOTORS CORPORATION, HYATT BEARINGS DIVISION, RESPONDENT-APPELLEE.
    Decided May 27, 1946.
    Por the petitioner-appellant, Rofhbard, Harris <& Oxféld.

    Por the respondent-appellee, Carpenter, Gilmour & Htvyer.

   Deewen, C. P. J.

Claim petition was filed in the Bureau for an award to coyer what is described in the petition as “compensable left hernia; aggravation of pre-existing right hernia; injuries to body and internal injuries.” The evidence confines the injury to a left inguinal hernia.

The case comes within the provisions of R. 8. 34:15-12, f X; W. J. 8. A. 34:15—12, f X. The hernia was not shown to be “a real traumatic hernia” as described in the statute and it therefore must comport with the five prescribed tests prerequisite to recovering.

The claim petition was dismissed below. The ground of dismissal is set forth in the findings of fact and determination as follows:

. “Upon consideration of all the testimony in this case I conclude that the case is not compensable. The petitioner has failed to prove that he was in snch physical distress by reason of a hernia that the attendance of a licensed physician was required within twenty-four hours of the occurrence of the hernia. In fact, there is no evidence of any immediate descent.”

The latter reference to proof of immediate descent was later deleted by an amending order of the Deputy Commissioner. As we judge the case, there was no reason whatever for dismissing the claim petition, and every reason for sustaining it as a claim for a left inguinal hernia.

The ease presents a body of fact at once decisive and undisputed. On January 13th, 1945, petitioner was loading a hand-truck with fifty bags of sand. In the history given by him to his physician Dr. Block, this work is shown to have involved the lifting of as much as 100 pounds. Having loaded the truck he was in the act of pulling it to an elevator when. he was seized with a violent pain in the left groin; immediately he sat down for about ten minutes because he could not stand the pain. Thereupon, it being lunch-time, he went to a restaurant, had lunch and returned. He then went to the storeroom where he had a little work to do, as he states it, and soon thereafter while thus engaged he fainted. He was taken to the first aid room on a stretcher. He was there under the care and observation of one or more nurses while awaiting the arrival of the plant physician, Dr. Paul. Petitioner states that after getting from him a statement of the occurrence, Dr. Paul ‘looked him over” and sent him back to the floor to work. Dr. Paul states that an examination then made by him showed that the rings were large on both sides and that there was a protrusion on both sides when petitioner stood up; that petitioner said he felt all right and wished to return to work, which the doctor allowed, telling petitioner not to do any heavy pulling or lifting. It appears further upon petitioner’s arrival in the plant infirmary he was observed to have a large mass protruding from the left groin, all of which was reported by the nurses to Dr. Paul. Dr. Paul suggested that petitioner procure a truss, which he subsequently did through his own physician, Dr. Block. Upon his arriving at home in the evening petitioner noticed a lump in his left groin. Two days later, January 15th (the intervening day being a Sunday), petitioner returned to Dr. Paul, who then observed that petitioner had a large protrusion in the left groin, “a definite mass,” which the doctor characterized as reducible. It was quite apparent to the doctor, he says, that petitioner had a hernia. At no time did Dr. Paul treat petitioner, but after the examination of January loth he referred him to his own physician. Petitioner then placed himself in the hands of Dr. Block, who administered injections, giving ten treatments in all. Dr. Block first saw petitioner on January 19th, when petitioner gave him a history that conforms with his testimony. Dr. Block found a left inguinal hernia. His treatment continued from January 19th, 1945, until he discharged the patient as cured on May 28th following. It was Dr. Block’s hypothesis that the incident of the described lifting “probably pushed it out.”

It is our judgment that beyond question the five statutory tests are met. The first of these is the requirement that the descent of the hernia immediately follow the cause. 3STot only is there the evidence of protrusion at the time of the first examination by Dr. Paul in the infirmary on the day of the accident, but there is also the finding of the lump by the petitioner himself the same evening. Protrusion is the manifestation of descent. The question of the immediacy of descent was dealt with by the Supreme Court in McBride Co., Inc., v. Kuehn, 11 N. J. Mis. R. 764; 168 Atl. Rep. 64, following the principle enunciated in Borodaeff v. Province Line Dairy, Inc., 109 N. J. L. 25; 160 Atl. Rep. 513; affirmed, 110 N. J. L. 20; 163 Atl. Rep. 892. In the latter ease the descent was noticed the morning after the strain, eighteen hours later. It was held that the phrase “immediately following the cause” means “soon enough and in such manner as to make it appear clear that the descent was the effect of the strain and pain complained of which forced cessation of work.” The present ease is undeniably within that rule.

The second prerequisite is that of severe pain in the hernial region. Concerning this no issue is presented. In addition to the uneontradieted testimony, respondent’s pleaded defense postulates the pain, but ascribes it to a pre-existing hernia.

The third prerequisite is that of such prostration that the employee was compelled to cease work immediately. Here also the testimony is clear and undisputed. January 13th, 1945, the date of the injury, was a Saturday. Cessation of work was immediate upon the incurring of the strain and an attempt to resume work on that day proved impossible. Cessation of work continued until May 17th.

The fourth condition, which relates to the communication of the injury to the employer within twenty-four hours after the occurrence of the hernia, requires no discussion.

The fifth and last is that there be such physical distress as to require the attendance of a licensed physician within twenty-four hours after the occurrence of the hernia. We hold this condition was fully complied with by the attendance of Dr. Paul upon petitioner at the plant infirmary soon after the injury. In the briefs of counsel, controversy centers in the failure of Dr. Paul during his attendance on January 13th to administer treatment. The ease of Black v. DeVries, 133 N. J. L. 368; 44 Atl. Rep. (2d) 386, is cited, in which the workman was not seen by a physician until about two weeks after the accident. The court held this defeated the claim under the statutory requirement. But the decision deals only with the difference between mere physical attendance by a physician and no attendance at all. The court does not probe the question beyond this to find the underlying meaning of the term used. In the instant case there was attendance by a physician, who was given the workman’s report of the happening, made such examination as he deemed needful or proper at the time and who, upon the workman’s expressed wish to return to work, permitted him to do so, at the same time enjoining him against any but light effort.

We think that the attendance in the present case was attendance in the sense required by the statute. The fact that no treatment was actually administered cannot be permitted to annul the attendance. The workman told his story, revealed his symptoms and submitted himself to examination. The patient can do no more. To hold him accountable beyond this for the physician’s failure to offer or to administer specific treatment would in effect render the workman accountable for the physician’s diagnostic error or other professional incompetence or neglect.

The proofs before us have a double aspect. Conceivably the claim can, within the frame of the law and for the reasons hereinabove set out, be regarded as one for an original hernia; and at the same time as one for the aggravation of a preexisting hernia. Furferi v. Pennsylvania, Railroad, 117 N. J. L. 508; 189 Atl. Rep. 126. Petitioner entered the employ of respondent on August 10th, 1943, when he was given a pre-employment examination by respondent’s physician, the already mentioned Dr. Paul. This examination revealed large rings and protrusion in both groins. The doctor testified that he passed him for “average work,” whatever that may mean. The condition then found is characterized by the doctor as “incipient hernia” and the testimony is that it was such as to render the subject more than ordinarily susceptible to hernia from sudden strain or effort.

Kespondent-appellee urges that the establishment of petitioner’s claim is defeated by such things as the statement to the doctor, ascribed to petitioner but denied by him, that his pain was caused by the inclusion of pie in the luncheon menu; the variance presented by the allegation in the claim petition of a compensable left hernia and the aggravation of a preexisting right hernia, the evidence showing only a left hernia, either aggravated or original; and the testimony of petitioner that he had never had any prior trouble in either groin, notwithstanding Dr. Paul’s finding in the pre-employment examination of 1943. We regard all this as trifling. If there is any justification for our noticing these contentions at all it is in the seriousness with which they are urged. Concerning the so-called variance, what we are asked to do is to overcome the substance with the form. Whatever inaccuracy there is in the claim petition in this regard worked no prejudice to anyone save possibly to petitioner himself in the hearing of his cause. That respondent was not prejudiced is perfectly clear from the stipulation dictated into the record by respondent’s attorney at the start of the hearing: “Petitioner informed respondent’he had pre-existing left inguinal hernia. Respondent contends no additional disability to either inguinal region.” And respondent had too the record of the preemployment examination. To give the least effect to anything petitioner may have said concerning a relation between the pie and the pain would by so much render him the only accountable aetiologist on the scene. He would not be permitted to pronounce conclusions on the hernial origin of his pain, nor will he be permitted to conclude the contrary. All denial by petitioner of previous inguinal difficulty must be considered in the light of the fact that for all that appears he was not told of his predisposing weakness, he did not know of it; and we are given no reason for saying he should have known of it, prior to the strain of January 13th, 1945. And finally, he did not deny actual awareness. All he said is that he had no previous pain or difficulty there.

The determination of dismissal in the Workmen’s Compensation Bureau is reversed.


author: McGrath, J.

text:
    Union County Orphans Court.
    IN THE MATTER OF THE ESTATE OF HERMAN BLANCHARD WINTER, DECEASED.
    Decided May 16, 1946.

      Proctor for proponents of tbe last will and testament of Herman Blanchard Winter, G. Bariram Woodruff.

    Proctor for the Young Women’s Christian Association, Richard G. Moser.

    Proctors for the Presbyterian Hospital in the City of Hew York, Hopkins, Vorburger <& Hickson.

    Proctor for Eleanor Lee Winter, Raymond T. Parrot.

   McGrath, J.

Herman Blanchard Winter formerly lived in Plainfield, Hew Jersey, Hnion County, and while a resident of this state he executed a will dated January 11th, 1926, in due form to pass title to real estate situate in this state. At the time of the execution of the will, he was unmarried, but later he married Eleanor Lee Winter. He went to Arizona and died there on December 7th, 1944, while he was domiciled in that state. His widow is also of that state and his mother is a resident of this county. He had no children, brothers or sisters. This Hew Jersey will has not been admitted to probate, as yet, and no proceedings to probate are pending in Arizona. The relevant facts in this case have been admitted by stipulation.

There is nothing wrong with the Hew Jersey will considered as a will under the laws of this state and if the testator had been a resident of this state at the time of his death, there would be no vice in the will itself to prevent probate.

However, on Hovember 18th, 1934, the testator made a holographic will in which he attempted to dispose of all his estate, real and personal. This instrument also recited: “I hereby revoke all wills and testamentary instruments by me at any time heretofore made.” This Arizona instrument was not witnessed, but being holographic was duly executed under the laws of Arizona and has been admitted to probate in that state. It is not executed according to our laws. There is a statute in Arizona affecting wills of married persons.

In 1921, the legislature of New Jersey passed an act permitting the probate of wills of non-residents on certain conditions. One condition is that the non-resident shall die "seized of real estate situate in this state leaving a last will and testament executed in due form to pass title to real estate situate in this state.” R. S. 3:2-41 to 3:2-43, inclusive; N. J. 8. A. 3:2-41 to 3 :2-43, inclusive.

Two questions, therefore, arise. Tirst: Have the Arizona will or Arizona statutes any effect on the previous testamentary disposition of real estate in New Jersey under the New Jersey will? Second: If the New Jersey will has not been revoked, does it come within the provisions of the above New Jersey statute permitting probate of wills of non-residents? It is admitted that the testator died seized of real estate in Union County at the time of Ms death.

It is true that a later inconsistent will revokes a former will, but the later will must be executed according to our statutes on revocation, therefore, the attempted revocation in the Arizona will, either implied or express, cannot affect New Jersey real estate. Boylan v. Meeker, 28 N. J. L. 274; Nelson v. Potter, 50 Id. 324; 15 Atl. Rep. 375; Lindley v. O’Reilly, 50 N. J. L. 636; 15 Atl. Rep. 379; Watkins v. Watkins, 82 N. J. Eq. 483; 89 Atl. Rep. 253; affirmed, 85 N. J. Eq. 217; 95 Atl. Rep. 1079. The inconsistency must be a legal inconsistency and the attempted revocation in Arizona is a legal nullity as to New Jersey real estate.

There is no principle of interstate comity which can affect the disposition of New Jersey real estate, either by wills not according to our laws, In re Fischer, 119 N. J. Eq. 217; 181 Atl. Rep. 875, or by foreign statutes, Lindley v. O’Reüly, supra. “A devise of land in New Jersey under a will of a non-resident must be determined by the law of New Jersey.” Van Wickle v. Van Wickle, 59 N. J. Eq. 317; 44 Atl. Rep. 877.

Since the New Jersey will is the only legal will affecting real estate in this state, and is unrevoked as such, it follows that it is the only last will of real estate which this state will recognize and thus is within the terms of the statute.

No reason appears why the New Jersey will should not be probated here. The observations of the court in the Chadwick Case, 80 N. J. Eq. 471; 85 Atl. Rep. 266, are not in point since the statute which was passed after these observations were made has now laid down the policy of this state on the subject. In re Fischer, supra. This policy, creates no injustice or conflict of law as to real estate since each state has control of its real estate, and Arizona has no interest in the construction of a New Jersey statute on matters within the jurisdiction of New Jersey.

It must be presumed that the legislature had in mind the general law of wills and our statutes on revocation of wills as well as the principles of law affecting the testamentary disposition of real estate. Clearly, the New Jersey will is a last will affecting New Jersey real estate, for a last will must necessarily be a will duly executed under our laws which has not been revoked according to our statute.

The argument of the opponents of probate may be reduced to a claim that the word “last” in this statute permitting probate of non-residents’ wills, means “last” in point of time. In other words, they would have the statute impose two conditions: that the will be last in point of time, and that it should affect real estate. The statute does not say this and cannot be read that way. If the conditions were that the will be last in point of time, then if there could be found in one of the forty-seven other states or in any foreign country a “will,” however ineffective under the laws of New Jersey, but - last in point of time, this would bar a legally executed last will of real estate in New Jersey from probate here, although it stood unrevoked. The whole emphasis would be placed on time of execution rather than on proper execution under our laws. There is, of course, no reason for such a construction. The statute is not concerned with any last will, but only with a last will duly executed under our laws, otherwise it would , not be a last will of New Jersey real estate. We cannot ignore out statute on revocation, nor the obvious purpose of the present statute to supply jurisdiction to the courts to probate valid dispositions of New Jersey real estate, despite the fact that the testator did not reside in New Jersey at the time of his death.

The fact that the Arizona will has been probated in Arizona does not affect the New Jersey will since one of the conditions of the statute (R. 3. 3:2-41; N. J. 8. A. 3:2-41) is that the Now Jersey will shall not have been probated elsewhere. The legislature can provide for probate of a last will of New Jersey real estate even though such a will would be invalid at the place of domicile (In re Dodge’s Will, 89 N. J. Eq. 525; 104 Atl. Rep. 646, decided in 1918 before the passage of the statute). These two wills are creatures of state law and owe their validity to the laws of each state so far as each state will recognize them. There is no legal principle to prevent both states from recognizing a testator’s intentions so far as he has legally expressed them according to the respective laws of each state concerned, as long as each state keeps within its jurisdiction and within the principle of interstate comity so far as it goes. See Nelson v. Potter, supra; Smith v. McChesney, 15 N. J. Eq. 359, 362, and In re Fischer's Will, supra.

I find that the will of Herman Blanchard Winter, executed January 11th, 1926, is his last will and testament executed in due form to pass title to real estate situate in this state; that decedent died seized of real estate in this state and the said will has not been probated in any other state or country nor offered for probate, and that no proceedings for probate are pending in any other state or country. The will shall, therefore, be admitted to probate.

During the hearing, a copy of an agreement between the mother and the widow of the testator was offered in evidence subject to objection and exception. This agreement is incompetent and irrelevant on this issue. I have not regarded it as evidential, and it has not influenced me in any way in arriving at my conclusions as to the correct interpretation of the statute.


author: McG-eath, J.

text:
    Union County Orphans Court.
    IN THE MATTER OF THE ESTATE OF ALBERT WINTER, DECEASED.
    Decided May 24, 1946.

      Proctor for trustees under tbe will of Albert Winter, G. Bartram Woodruff.

    Proctor for the Young Women’s Christian Association, Richard G. Moser.

    Proctors for the Presbyterian Hospital in the City of Hew York, Hopkins, Vorb-urger & Dickson.

    Proctor for Eleanor Lee Winter, Raymond T. Parrot.

   McG-eath, J.

Albert Winter died a resident of this state on December 18th, 1920. Hnder his will dated January 6th, 1916, the residuary estate was left by paragraph 14 to trustees for the benefit of his son, Herman Blanchard Winter, with provisions for payment of part of the principal at certain times. The will authorized the son to appoint by will or other testamentary instrument the principal remaining in the hands of the trustees, to any individual or corporation. The relevant facts which have been stipulated are such that if no valid exercise of the appointment has been made the remaining principal valued at about $100,000 goes to certain Hew York charities named in Albert’s will.

On January 11th, 1926, Herman 33. Winter, the son, executed a last will and testament under the laws of Hew Jersey, reciting that he exercised the power in favor of his mother, Anne E. McCully Winter, who is still living in this county.

After the execution of the Hew Jersey will, Herman married Eleanor L. Winter in 1933. On Hovember 18th, 1934, he signed a paper in Arizona while domiciled there in which he attempted to exercise the power in favor of his wife. The Arizona will also recited that he revoked all wills and testamentary instruments made by him heretofore. This instrument is a duly executed will under the laws of Arizona and has been probated there but is not executed according to the laws of Hew Jersey, and cannot be probated here, either as an original will or ás a copy of a foreign will. Seaboard v. Tophen, 130 N. J. Fq. 46; 20 Atl. Rep. (2d) 709. He died a resident of Arizona. There is a statute in Arizona affecting wills of married testators.

Herman Blanchard Winter (the son), owned Hew Jersey real estate at the time of his death and the Hew Jersey will has been probated under our statute R. 8. 3:2-41, 3:2-42 and 3:2-43; N. J. S. A. 3:2-41, 3:2-42 and 3:2-43, providing for probate of last wills of non-residents who leave real estate in this state.

Two questions arise. (1) Has the power of appointment legally exercised by the Hew Jersey will of Herman Blanchard Winter been revoked by the Arizona statutes or the Arizona will? (2) If the Hew Jersey will is still in force in this respect can it be given effect in this state, or is the probate of the Hew Jersey will confined only to real estate as the will of a non-resident ?

It should be noted that there is no claim made that either of the wills was the product of undue influence or insanity or any other disabling factor, so that no question of res adjudícala can arise. The question is purely one of construction and jurisdiction. The trust funds are within this state and consist entirely of personal property. The parties in interest are all before the court, and the relevant facts have been admitted by stipulation.

As to the first question, it is clear that the statutes of Arizona and the Arizona will, are both ineffective to revoke the exercise of the power of appointment made by the' son in his Hew Jersey will. The domicile of Albert Winter, the father or donor, was in Union County, and the rule is that the domicile of the donor of a power of appointment given by will must govern as against the laws of the domicile of the donee in determining whether or not the power has been exercised. Fidelity Union Trust Co., &c., v. William G. Caldwell et al., 137 N. J. Eq. 362; 44 Atl. Rep. (2d) 842. As the Vice-Chancellor points out, the donee is but the indicator pointing out to whom the property goes. Farnum v. Pennsylvania Co., &c., 87 N. J. Eq. 108; 99 Atl. Rep. 145; affirmed in 87 N. J. Eq. 652; 101 Atl. Rep. 1053.

A general power of appointment is not personal property, although it may be considered as such for taxing purposes, The Pennsylvania Co., &c., v. Kelly, 134 N. J. Eq. 120 (at p. 133); 34 Atl. Rep. (2d) 538, or as to the rights of creditors, Seward v. Kaufman, 119 N. J. Eq. 44; 180 Atl. Rep. 857. Nor is it subject to the principle of comity, either as to creation or interpretation. See Farnum v. Pennsylvania Co., &c., supra; affirmed in 87 N. J. Eq. 652; 101 Atl. Rep. 1053; In re Fischer, 119 N. J. Eq. 217; 181 Atl. Rep. 875, and Fidelity Union Trust Co. v. Caldwell, 137 N. J. Eq. 362; 44 Atl. Rep. (2d) 842.

I hold, therefore, that the last will of Herman B. Winter dated January 11th, 1926, is his only last will which disposes of this power of appointment according to the laws of New Jersey and that it has not been revoked by any Arizona statute or by the Arizona will, nor is it in any way affected by them.

The next question is whether the probate of the New Jersey will affects only New Jersey real estate, or whether it operates as a last will and testament sufficient to meet the directions as to the power, in the will of the father and donor, Albert B. Winter. If the New Jersey will of the son is of no effect, then the power of appointment has not been exercised and the funds go by default to the New York charities named in the father’s will.

It may be noted, in passing, that the mother and the widow have signed an agreement, which has been offered in evidence. I do not consider that this agreement has any effect on the questions involved in this opinion and I have not been influenced by it.

Counsel for the New York charities contend and correctly so, that the attempted exercise of the power of appointment in the Arizona will is void. But they go further and say that although the execution of the power in the New Jersey will of Herman is valid, it cannot be of any power in Hew Jersey since Herman did not die a resident of this state, and that even though the Hew Jersey will of Herman has been probated here the effect of its probate is limited to real estate.

However, the Court of Errors and Appeals has said that under this statute our courts have original jurisdiction to admit a will of a non-resident to probate when the testator dies seized of real estate here, In re de Buck, 125 N. J. Eq. 80, 84; 40 Atl. Rep. (2d) 309, and the provisions of the statute show that it was intended that the probate should be a full probate in the ordinary sense. Provisions are made for notice of application for probate to all those interested and issuance of letters testamentary or of administration cum testamento annexo. The statute relates to jurisdiction and the words “probate,” “executor,” &c., must be construed in their ordinary meaning. Crawford v. Lees, 84 N. J. Eq. 324; 93 Atl. Rep. 201; In re Fischer’s Will, supra. The statute contains no limitations on the powers of the court or the officers appointed by the court as part of the probate proceedings.

It would be fallacious to say that the officer appointed by the court to administer the will would have power only over the real estate, leaving the personal property, if any, outside of the administration of the estate. Usually, or at least frequently, estates consist of both real and personal property and generally speaking, it is impossible to administer an estate with reference to real estate alone. It is the duty of the executor or administrator cum testamento annexo to gather in the assets and pay all claims, debts, liens and other charges, and the personal property is the primary fund out of which all claims and liabilities against the estate must first be paid, whether the deceased was a resident or a non-resident. In re Estate of Maggie Riley, 92 N. J. Eq. 567; 113 Atl. Rep. 485. “The incidents of real estate, its disposition and alienation, the right of succession, and all questions as to burdens and liabilities imposed upon it, depend solely upon the lex rei sitae. The law of the country where the testator may be domiciled at his death cannot impose burdens or liabilities upon or provide for the disposition of lands in a manner not recognized by the law of the country where the estate is situated.” Pratt v. Douglas, &c., 38 N. J. Eq. 516.

It is, of course, true that the validity of bequests of personal property depends upon the law of the testator’s domicile, but the important distinction to be kept in mind in interpreting this statute is the distinction between the validity of a bequest and the administration of an estate, the paying of debts, &c., before any distribution can be made to the persons entitled. Thus, in Harral v. Harral, 39 N. J. Eq. 279, distribution was made according to the laws of France, although, the will was probated here in this state and administered in this state. It so happens that in the present case there is no personal property in New Jersey, but this does not change the general rules of law bearing on the interpretation of the general intent of the legislature in passing this statute.

Furthermore, it must be assumed that the legislature had in mind that there are other matters which can be contained in a will which are neither real nor personal property, but which may be of considerable importance, and have to do with New Jersey trusts, and other matters within our jurisdiction. A power of appointment is an excellent example.

It is objected that the statute does not specifically mention powers of appointment but, of course, the legislature could not mention everything besides real or personal property which can be mentioned in a will. A general grant of jurisdiction is all that is necessary, for this court to enforce a power of appointment which is subject to the law of New Jersey under a will which has been legally probated here. The State of Arizona can have no legal interest in the carrying out of this power of appointment. Its execution and interpretation are governed entirely by the laws of New Jersey.

The history of the statute shows that it contains no limitations. Before Chadwick's Case, 80 N. J. Eq. 471; 85 Atl. Rep. 266, 267, it had been the practice to probate wills of non-residents if there was anything for the probate to operate on, but in the Chadwick ease it was decided that the legislature had not given onr courts jurisdiction to probate wills of a non-resident, even though he left property in this state. The court said: <rWe think that upon general principles the due administration of justice demands that last wills should be first probated at the domicile of a testator, and that this rule should prevail in this state, unless the law expressly confers on the Ordinary or surrogate’s probate jurisdiction over wills of non-residents.” Neither the Chadwick case nor any case preceding it suggested that the state lacked power to provide for probate of the wills of non-residents, hut the Chadwick case pointed out that no statute had given this jurisdiction. The policy of this state now is that wills of non-residents may be probated if they meet the conditions named in the statute, one of which is that the decedent shall have died seized of real estate in New Jersey. See In re Fischer’s Will, supra.

As pointed out in Fischer’s case, 119 N. J. Eq. (at p. 222); 181 Atl. Rep. 875, the explanation of this legislative activity is doubtless to be found in the fact that the legislature of New York had taken over probate of wills of New Jersey residents, and New York’s code not only permitted wills affecting non-resident owners of real estate, but also of personal property in certain cases. See In re Barney, 94 N. J. Eq. 292, 394; 120 Atl. Rep. 513.

In passing this supplement to the Orphans Court Act the legislature, no doubt, had in mind the observations of the court in Chadwick’s case as to making possession of personal property alone the basis of probate. The Chadwick case dealt with a will of a non-resident who had died leaving personal property in Hudson County.

The statute is remedial and the title contains no limitation of jurisdiction nor is there any limitation in the body of the act itself as to the effect of probate after it has been granted nor is there anything in the history of the act, nor in a practical construction thereof which could limit its operation to real estate alone. The statute makes legal the practice which had Obtained before the decision in the Chadwick ease with the condition that the testator must have died seized of real estate situated in this state, and thus meets the objections raised in the Chadwick case as to lack of jurisdiction and the objections to permitting the probate of a non-resident who died leaving only personal property in this state.

In Farnum v. Pennsylvania Co., supra, the court said: “The donor, at the time of the creation of the power, was a resident of New Jersey. So was the donee. The power was created and exists by virtue of the laws of this state, and it is settled law that the exercise of powers conferred by will is controlled by the law of the testator’s domicile, both as to the execution of the power and the interpretation of it. The selection of a foreign trustee and possession of the fund outside of the state, does not affect the rule, for the reason that the property belongs to the estate of a testator domiciled here, and is to be administered according to our laws under the supervision of our courts, to which the trustee is amenable.”

In the present ease, the donor and the donee were both residents of New Jersey when their wills were made affecting this power of appointment; the funds are in a New Jersey trust situated in New Jersey and subject to our laws and the parties interested are all before the court. If the power of appointment fails, the money goes by default to the New York charities named in Albert Winter’s will. Testamentary trusts frequently consist of both real and personal property, as well as intangible rights and powers. These should not be defeated by a narrow construction of a statute giving general jurisdiction over administration of a New Jersey will.


text:
    Essex County Circuit Court.
    MAX SCHUMAN, PLAINTIFF, v. STEVE ZURAWELL ET AL., DEFENDANTS.
    Decided May 23, 1946.
    Eor the plaintiff, Benjamin 8. Appel.

    Eor the defendants, Benjamin D. Braelow.

   Smith, Joseph L., C. C. J.

This is a motion to strike defendants’ answer on the ground that it is sham or contrary to law.

It appears from the affidavits filed herein that the parties entered into a written contract on May 15th, 1945, whereby the defendants were to perform the duties of superintendent and certain services as janitor in the apartment building of the plaintiff. The defendants were paid the sum of $109 per month and in addition were given the use of an apartment in the basement. The agreement provided that either of the parties could terminate the agreement upon giving two weeks’ notice. Mothing was said with regard to the form of notice or the manner in which it was to be given.

Plaintiff alleges that written notice was given to the defendants by registered mail on Eebruary 11th, 1946, as appears from the postal receipt which purports to be signed by Walter Zuramel, a son of the defendants, terminating the employment and demanding possession of the premises on March 15th, 1946. The defendants did not surrender possession of the premises on March 15th, 1946, despite the fact that plaintiff hired another superintendent who entered upon the duties of superintendent in charge of the premises wherein the defendants reside. The suit in ejectment was not brought until April 11th, 1946. Plaintiff contends that a valid and sufficient notice was given to the defendant in accordance with the agreement of May 15th, 1945, but it is questionable* whether for the purposes of this motion any notice is necessary..

Mr. Justice Knapp speaking for our Supreme Court, in McQuade v. Emmons, 38 N. J. L. 397, held that where a. party to the suit was employed at a salary of $25 per month and given the use of a house for himself and his family, the-relation of master and servant arose and not that of landlord', and tenant. In McQuade v. Emmons, supra, Mr. Justice; Knapp (at p. 399) said:

“The occupation of the house by McQuade and his family was part of his compensation, for the performance of his engagement with the defendant; it does not show any demise of the house; the possession of McQuade was the possession of his employer, and when he was dismissed from service, and the legal relation existing between them thereby put an end to, his right of occupancy was ended, and his longer remaining on the premises of his master was a trespass.”

See, also, Morris Canal and Banking Co. v. Mitchell, 31 N. J. L. 99; The Scottish Rile Co. v. Salkowitz, 119 Id. 558; 197 Atl. Rep. 43.

In the instant ease the defendants were employed as superintendents and as part of their remuneration they were permitted to occupy an apartment in the premises. This creates a relationship of master and servant and not a relationship of landlord and tenant.

The motion to strike the answer is granted and summary, judgment may be entered accordingly.


author: Silbebman, D. C. J.

text:
    Second District Court of the City of Paterson.
    ALFRED SERMOND, PLAINTIFF, v. EDWARD LOTZ, DEFENDANT.
    Decided May 24, 1946.

      For the plaintiff, Archibald Krieger.

    For the defendant, Joseph Fwmagali.

   Silbebman, D. C. J.

This action was brought to recover unpaid minimum compensation, unpaid overtime compensation, liquidated damages, attorney’s fees and costs pursuant to section 6(a) and section 7(a) of the Federal Fair Labor Standards Act of 1938. 29 U. S. G., tit. “Labor,” § 16 (b); 29 U. S. G. A., §§ 206(a), 207(a), 216(b).

The case was tried by the court sitting without a jury. No evidence was offered by the defendant, and from the evidence presented by the plaintiff, the following appears:

Plaintiff was a former employee of defendant. During the period in question defendant was the owner of an ice manufacturing plant located in Paterson. Plaintiff was employed as a box man and was required to work from 6 :00 p. m. to 6:00 A. m. each day for seven days a week at a salary of twenty-four ($24) dollars per week. His rate of wage was 28% cents per hour. Plaintiff’s duties consisted in pushing the ice after it was produced into the storage box and also to push ice from the storage box on to a chute where it was carried down and made available for loading upon defendant’s trucks for delivery to his customers.

Among customers served by the defendant were dealers who re-sold the ice and Phoenix Chemical and Color Works of Paterson who used the ice for industrial purposes. Some of the dealers would receive delivery of the ice at the place of business of their customers in the defendant’s trucks where the ice was unloaded by truck drivers of the defendant. Among such customers were the Great Atlantic & Pacific Tea Company and the New York, Susquehanna and Western Eailroad. The tea company maintained a warehouse at Hawthorne along the siding of the railroad where there was daily received at the warehouse shipments of perishables consisting of fresh fruits, vegetables and meat from all over the United States. After arrival of these goods, ice manufactured by defendant was placed by his employees in the refrigerator cars containing the perishables while the ears were waiting to be unloaded in order to preserve the contents of these ears until such time as they were ready for unloading. Defendant also manufactured the ice which was delivered in his trucks to the railroad which ice was used by it for cooling drinking water used by its employees at its roundhouse at Little Ferry.

It also appeared that defendant sold ice and delivered considerable quantities to his own customer, Phoenix Chemical and Color Works. This company was engaged in manufacturing dyestuffs in Paterson. In the course of its production of dyestuffs, ice was used by that customer as an agent or ingredient to lower the temperature of the chemicals used in compounding the dyestuffs.

At the trial, the chief chemist of this company related the chemical process which took place and which made necessary the use of said ice and related that ice was a necessary ingredient towards economically and effectively producing the dyestuffs. The dyestuffs after production were thereafter shipped by the Chemical Company to its customers located in various states of the United States.

Upon these facts, plaintiff contends that the defendant was covered by the act, and he should have received from his former employer, the minimum wage of 30 cents per hour (the effective rate at that time) and one and one-half times his basic rate of pay as overtime pay for each hour beyond the maximum of forty hours in each week. Defendant denies coverage and contends that he was not subject to the provisions of the statute.

The question presented is whether or not plaintiff was “engaged * * * in the production of goods for commerce” within the meaning of sections 6(a) and 7(a) of the act.

The court considers that under the circumstances of this ease, the defendant was subject to the Federal Fair Labor Standards Act by reason of the terms of the statute and of its interpretation by the Supreme Court of the United States.

In Brooklyn Savings Bank v. O’Neil, 65 S. Ct. 895; 89 L. Ed. 876, the purpose, scope and intention of Congress in connection with the act was stated by the Supreme Court as follows:

“The legislative history of the Fair Labor Standards Act shows an intent on the part of Congress to protect certain groups of the population from substandard wages and excessive hours which endangered the national health and well-being and the free flow of goods in interstate commerce. The statute was a recognition of the fact that due to the unequal bargaining power as between employer and employee, certain segments of the population required federal compulsory legislation to prevent private contracts on their part which endangered national health and efficiency and as a result the free movement of goods in interstate commerce. To accomplish this purpose standards of minimum wages and maximum hours were provided.”

The statute has received broad and liberal interpretation by the Supreme Court of the United States. In Kirschbaum v. Walling, 316 U. S. 517; 62 S. Ct 1116, it was held that maintenance employees of a large building housing tenants engaged in the manufacture of goods later shipped in interstate commerce, were covered by the act because the work performed by these employees and the services supplied by them to the tenants were essential to the production of goods, by providing a safe and habitable place in which to engage in their business of manufacturing. The court concluded that the result followed by reason of section 3(j); 29 U. 8. G. A., § 203 (j), which refers to “any occupation necessary to the production * * *.” Following that ease, the Supreme Court has held in a series of cases that coverage exists in any employment where the work of the employee on the goods or services rendered is so closely tied with the process of production and is so much a part of the integrated and coordinated efforts by which the goods are produced that it can be said that the work of the employee should be regarded as engaged in an “occupation necessary to the production of goods for commerce." Warren-Bradshaw Drilling Co. v. Hall, 317 U. S. 88; 63 S. Ct. 125; Walton v. Southern Package Corp., 320 U. S. 540; 64 S. Ct. 320; Armour & Co. v. Wantock, 323 U. S. 126; 65 S. Ct. 165; Roland Electrical Co. v. Walling, 66 S. Ct. 413; 90 L. Ed. 326, and Martino v. Michigan Window Cleaning Co., 66 S. Ct. 379; 90 L. Ed. 386.

In Roland Electrical Co. v. Walling, supra (decided January 38th, 1946), the Supreme Court held that the employees of an electrical contractor locally engaged in the commercial and industrial wiring and dealing in electrical motors and generators for commercial and industrial use whose customers are engaged in the production of goods for interstate commerce, are themselves engaged in the production of goods for commerce and so are within the coverage of the Federal Fair Labor Standards Act of 1938.

The court definitely and clearly stated that to establish coverage under the Federal Fair Labor Standards Act, it is not necessary that an employee be directly engaged in commerce or be engaged in the production of an article which itself becomes a subject of commerce, but that the employee be engaged in an occupation which is necessary to the production of a part of any article or subject of commerce in any character which is produced for trade, commerce or transportation among the other states. He need not be employed exclusively in the specific occupation and the occupation need not be indispensable so long as it is needed in such production' and, if omitted, would handicap the production.

In addition to these authorities, I have considered these cases: Chapman v. Home Ice Co., 136 Fed. Rep. (2d) 353; affirmed, 330 U. S. 762; 64 S. Ct. 72; Reynolds v. Salt River Valley Water Users Associates, 143 Fed. Rep. (2d) 863; Walling v. Amidon, d. b. a. Pueblo Sand and Gravel Co., 153 Id. 159.

In the case at bar, ice manufactured by defendant was used by the A. & P. warehouse and by the railroads in connection with activities engaged in by them. The relationship of the use of ice by these persons to the ice manufactured by the defendant was closely related to the activities in which these persons were themselves engaged. The plaintiff’s part in the production of the ice by the defendant in this case was necessary to the activities of the warehouse and the railroad.

It appears that in the foregoing incident the ice passed an intermediary dealer before being utilized in the refrigeration of the perishable goods prior to their unloading from the refrigerated railroad cars and likewise as respects the ice used by the railroad for its employees. However, the intermediate transaction would not seem of importance because the incident of the passage of title does not fix the limits of federal regulation under the Commerce Clause, because the act applies to any employer who expects, hopes or intends when goods are produced that they will move in interstate commerce. United States v. Darby, 312 U. S. 100; 61 S. Ct. 451; Hamlet Ice Co. v. Fleming, 127 Fed. Rep. (2d) 165.

With respect to the ice sold by defendant to the chemical company the relationship between the production of the ice and the use by the customer was even closer. The ice was used by the chemical company as a necessary ingredient in the production of the dyestuffs. The use of such ice was tied so closely with the process of production of the goods shipped by the chemical company and were so much a part of the integrated and co-ordinated efforts by which the goods were produced as to render the plaintiff in this case who handled the ice at the plant of the defendant engaged in an “occupation necessary to the production” of dyestuffs. Without the ice you could not manufacture the dyestuffs and since the dyestuffs were shipped in interstate commerce the manufacturer of the ice, the defendant in this ease, employed plaintiff who was engaged in an occupation necessary to the production of goods for commerce.

The recent decisions of the Supreme Court have been broad to the extent of coverage. That court recently held that window cleaners acting for an independent contractor who render service in factories manufacturing goods shipped in interstate commerce were held to be covered by the act because the cleaning of windows is necessary to a clean place as an industrial requirement, and such service constitutes a service necessary to the production of goods for commerce. Martino v. Michigan Window Cleaning Co., 66 S. Ct. 379; 90 L. Ed.

TJnder all the circumstances, I therefore find that plaintiff was during the period of his employment engaged in the production of goods for commerce under the terms of the act.

During the period of plaintiff’s employment, he received twenty-four ($24) dollars each week for a work-week of eighty-four hours. His rate of wage was therefore 28% cents per hour. He should have received under section 6 of the act the minimum wage of thirty cents per hour. He was underpaid during the period of his employment of twenty-three weeks the sum of $28.98 as unpaid minimum wages.

Under the provisions of section 7 of the act, plaintiff was entitled to receive time and one-half for every hour beyond forty hours in each work-week. He was employed for twenty-three weeks for eighty-four hours each week and should have received overtime pay at the rate of 14% cents for forty-four hours each week. Said unpaid overtime compensation during the period of his employment amounted to $144.21.

Under section 16(b) of the act, plaintiff is entitled to an additional equal amount as liquidated damages because the defendant failed to pay the statutory rate of pay at the time plaintiff earned the same.

Plaintiff is therefore entitled to a verdict in the amount of $346.38, together with an attorney’s fee for the services rendered to him which is hereby fixed and allowed in the amount of $75 or a total of $421.38.

Judgment will be entered in favor of plaintiff and against the defendant in the amount of $421.38, with costs.


text:
    Herbert Hubschman, complainant, v. Alice Hubschman, defendant.
    [Decided June 20th, 1946.]

      Messrs. Siegler & Siegler (Mr. Irving Siegler, of counsel), for Herbert Hubschman.

      Messrs. Bossbach & Bossbach (Mr. Adam T. Bossbach, of counsel), for Alice Hubschman,
   Van Winkle, A. M.

There are two issues, one as to the validity of a decree of divorce obtained by the woman against the man in Florida, and the other as to the custody of the young child of the parties who is now in the custody of the man against the will of the woman.

1. I have determined, on the first of the issues, that the man, the actor, has unclean hands, and so should be repelled from this court of equity and denied the relief he seeks, namely, a decree of this court declaring the Florida decree void because, as he alleges, the woman was not domiciled in Florida.

However, I prefer not to rest my decision entirely on my application of the clean-hands maxim; and I have gone into a consideration of the testimony and the law. The result therefrom is that I have determined that the Florida decree should not be set aside even if the man should be held to be in court with clean hands.

The man wrote a letter to the woman admitting that he had been continuously guilty of adultery; and in this letter he stated that he had been “a cheat and a liar for a long time.” In the letter he stated: “I feel that even if I attempted to terminate this affair, I probably wouldn’t and if I did I would probably start another.” The letter follows:

“March 20, 1941.
Dear Alice:
Because I don’t intend to make your life any more unbearable, I think it is only fair to you to write this letter.
I have been a cheat and a liar for a long time, have committed adultery with one Mildred Meyer over a period of 2% to 3 yrs, have stayed over night with her at certain tourist cabins on Route 25, N. J numerous times—
— . . I feel that even if I attempted to terminate this affair, I probably wouldn’t and if I did I would probably start another. Because of this, I think that you have a perfect right to leave me to set up a place of your own or anything you may choose.
I will endeavor to support you and at present will forward you $160 per month, $60 to be applied toward the mortgage on the property at 501 - 503 - 505 Bergen St Harrison, the balance to— for your and our baby Alice.
Again I reiterate, that I solely am to blame for these events, and feel that for your own benefit and our ehilds you should leave me.”

In a later letter by the man to the woman, undated hut written in May, 1944, he wrote: “Am enclosing a little article I clipped from yesterday’s paper; it may be good reading, I would mail it to the rest of your family when you are through.” The enclosure was an article of several pages from the Sunday Mirror Magazine Section of the day before the letter was written, the article being headed in the largest of type, Do All Husbands Cheat? The article was illustrated and had to do with “the passion slaying of play-girl Rita Costello in Staten Island, H. Y.;” and it may be characterized as a justification for unfaithful husbands. It was sent by the man to the woman apparently as a justification of his unfaithfulness as a husband to her. I quote from the beginning of the article:

“This is what passed through the mind of Rother’s two-timed wife: ‘There isn’t a man in this courtroom who mightn’t be in my Adam’s fix. It’s easy enough for you jurors and spectators to condemn—but show me one married man. in five who never has cheated on his wife.’ ”

It may be said that not only has the man done evil, but worse, be excuses it.

I have quoted the first letter and from the second, not only because the letters show the foundation on which my finding of unclean hands rests, hut also because they bear on the custody issue and that I may deal with them by reference in disposing of that issue.

The man alleged that be had written the first of the letters under duress; but there was no suggestion that he bad so written the second letter; and we see that the reference in the second letter to its enclosure and the enclosure itself indicate at least that the admission of the commission of adultery in the first letter was truly made. Having seen the parties and beard the testimony I hold without any doubt that duress as to the first letter is not proved.

It was argued that there was no evidence, other than the letters, that the man had committed adultery; that there would need to be legal proof that be bad actually committed adultery, before it could be held that Ms hands were unclean; and, moreover, that Ms iniquitous conduct, Ms adultery, was not connected with his act in bringing this suit to set aside the Florida decree or with the suit itself. I do not agree that these contentions are valid. I look on this suit by the man to set aside the Florida decree as involving “the same matter,” “the same subject-matter,” “the same transaction,” as the proceeding brought by the woman for a divorce in Florida, namely, the status of the parties in connection with their marriage. And I determine that, in deciding the question of unclean hands, it may be held that the man has unclean hands in this suit to set aside the Florida decree, without the adultery specified in the man’s first letter being proved as adultery would need to be proved in a suit for divorce on the ground of adultery. I think that if the fact of adultery appears, no matter by what medium or process, that its existence may he ground for a holding of unclean hands.

I have not considered—the question has not been agitated— whether the clean-hands maxim may be applied against the state, the public, the “third party” to a divorce suit, having in mind its interest in the Florida decree. This suit is not a divorce suit but it has to do with the Florida divorce suit. I have not considered the question because of my holding that the Florida decree is a valid decree in this state.

2. Counsel for the man contended at first that the Florida decree should be set aside because it was obtained for a cause which allegedly occurred while the parties resided in this state. However, this contention has been disposed of by the recent decision of our Court of Errors and Appeals in Giresi v. Giresi, 137 N. J. Eq. 336; 44 Atl. Rep. (2d) 345, the showing in that suit being that the ground upon which the Hevada court had awarded a decree was not a valid ground for divorce under the laws of Hew Jersey (the proviso in R. S. 2:50-35; N. J. 8. A. 2 :50-35); and the holding being that “the declared policy of Hew Jersey must give way to the provision of the federal constitution that ‘Full faith and credit shall be given in each state to the public acts, records and judicial proceedings in every other state,’ if the decree of the sister state is entitled to full faith and credit.”

This leaves for disposition the contention “that the Florida decree was obtained by fraud for the reason that the defendant had no actual legal residence or domicile in the State of Florida at the time she instituted her suit for divorce, and that her legal residence and domicile was in the State of Hew Jersey and her allegation of a Florida residence was purely feigned and fraudulently set up for the purpose of obtaining a divorce.”

On this contention counsel cited Giresi v. Giresi, supra. However, we are to notice that the printed “Case” and the printed “Supplemental Case” in the Giresi suit (which I may say I have inspected) which were before the Court of Errors and Appeals on the appeal from this court contain nothing whatever showing that any inquiry was made or that any testimony was taken in Hevada; and the decision apparently was made because of , this and because of the sui generis nature of a divorce suit—the public being a party to such a suit—namely, that “justice requires that full inquiry be made into the facts and circumstances of appellant’s allegedly bona fide Hevada residence” to ascertain whether there was a fraud, perpetrated upon the Hevada court; and the suit was remanded to this court for such inquiry. Here, in this suit, there was, as I see it, an inquiry in the Florida proceeding of the character and to the extent required by the decision in the Giresi suit, of the facts and circumstances of the woman’s residence or domicile in Florida.

We find that the complainant here, the defendant in the sister-state proceeding, which led to the Florida decree of divorce made October 2d, 1945, appeared by having his chosen attorney file an answer in the Florida proceeding in which he put in issue all the averments in the bill for divorce as to domicile, jurisdiction and cause of action; and, further, that the complainant participated in the proceeding by his attorney who cross-examined witnesses at length on the question of the plaintiff’s domicile.

I do not see that we are helped in deciding the issue raised by the pleadings here by the declaration of counsel for one of the parties that the appearance of the defendant in the Florida proceeding was special in name or in form, or by the declaration of counsel for the other party that such appearance was general in effect.

Where a decree of divorce made by the court of a sister state is attacked because of the allegation that the plaintiff who obtained it was not domiciled in the sister state I take it that we are not to be concerned with the details of the legal procedure—which are usually different from our own—which led the court to an examination and subsequently a decree, if in fact there really was an inquiry, an examination, as to the domicile of the plaintiff which was participated in by the defendant there under an answer and appearance made by him—in short, if the defendant there by a pleading, an answer, contested the question of domicile and there actually was thereafter a contest on that question. See Davis v. Davis, 305 U. S. 32; 83 L. Ed. 26; 118 A. L. R. 1518.

The Florida decree is res judicata and so the complainant is estopped from questioning its validity here; it is entitled to full faith and credit here by virtue of the fact of the contest in the Florida court, and by reason of the “full faith and credit” provision of the federal constitution; and I will advise a decree dismissing the bill of complaint.

I should add here, that in appreciation of the raison d’etre of Mr. Justice Colie’s opinion in the Giresi Case, supra, and that of Mr. Justice Bodiue in Isserman v. Isserman, 138 N. J. Eq. 140; 46 Atl. Rep. (2d) I determined, in addition to determining that the Florida decree is valid in New Jersey as between the parties, that because of the fact of the litigation in Florida on the question of domicile, the complainant’s participation therein, and his failure to prove a fraudulent domicile, that the decree is not against “the interest of the public.” This feature was not directly adverted to by counsel.

Of course we should not expect to find in any decided case a precise rule declaring inclusively and exclusively what “the - interest of the public” is. As Mr. Justice Bodine declared in the Isserman Case, supra, “The law in this class of cases seems to be settled as the facts in each instance develop.” In this Isserman Case an oral. hearing here on domicile was ordered. An examination of the printed “Case” on the appeal of this Isserman Case to the Court of Errors and Appeals shows why. It shows, apparently, a Nevada decree resting on a mere pretext. It discloses a demand by the appealing wife for an examination on the question of domicile in the Nevada court, and its denial; that her demand to be herself heard as a witness was denied; and pages and pages of affidavits set up a claimed situation of corruption on the part of her counsel in Nevada who were alleged to have improperly cooperated with her husband’s counsel there which resulted in a dishonest decree—altogether, apparently, a situation against “the interest of the public,” and certainly one concerning which there should be a proper examination in this court—an examination which apparently had been denied in Nevada.

Mr. Bishop (in 2 Bish. Marr., Div. & Sep., § 664) states “The Limit” to the exercise of “the interest of the public

“The Limit—to the right of the public to be protected while thus dissegarding the just and common practice of the court cannot be precisely defined by rule. The judge, keeping in view the precedents, with his ‘conscience’ always awake, should see that while the record parties are not deprived of the justice of the law, the public good, which suffers from every dishonest divorce, and from every one not as well within the spirit of the statute as its terms, is not sacrificed. A rule more exact than this does not appear to be in the nature of the case possible.”

“The interest of the public” may override the rights of parties expressly given them by law where there is fraud as to domicile. However, not only must fraud be proved, hut also where there is a substantial litigation on the question of domicile in a competent court of a sister state the question is not to be relitigated here “in the interest of the public.”

3. As to the custody issue. This separate issue is to be decided, as I am deciding it, separately from the issue relating to the ."Florida decree. Even if the Elorida decree did not exist and the parties were still husband and wife but found to be living in a state of separation and with the child an inhabitant of the staie, a decision on a custody issue should and would be manifested by an order committing the child to the custody of the mother.

On the conclusion of the hearing counsel asked and agreed that an investigation should be made under the statute (.B. 8. 2:199—12) by Ann Rainey, probation ofilcer-in-charge Chancery Court, for the probation officer of Hudson County; and further, that her report of the investigation might be used by me in coming to a decision. .

In instructing Mrs. Rainey about an investigation, she was told not to interview the parties or any person who had testified on the hearing; and further, she was instructed to talk to the young child more than once and away from the parties and to interview the maternal grandfather of the child and also the good woman who has been temporarily caring for the child in the home of the child’s father, and also the daughter of this woman who lives in the same house with her mother and the child of the parties—and who, as I had noticed, had been in the courtroom on the hearing but had not been called to testify, and I wondered why. See Robinson v. Equitable, 126 N. J. Eq. 242 (at p. 247); 8 Atl. Rep. (2d) 600; Breheny v. Essex Co., 134 N. J. Law 129; 45 Atl. Rep. (2d) 700. Mrs. Rainey was also instructed to investigate the condition of the father’s home and that of the maternal grandparents, which home the mother had proposed as a home for the child, it being her own home, should custody be awarded to her.

Obviously, the probation statute referred to indicates, at the least, that a judge of this court asking for a probation officer investigation, may use the report in deciding on the welfare of a child. Nevertheless, strictly speaking, such a report may not be legally used as any part of the basis for a decision except where the parties have so consented as here.

I determine, on the evidence produced on the hearing—and so irrespectively of Mrs. Kainey’s report of investigation— that the child’s welfare demands that its custody should be committed to its mother, with liberal visitation accorded to the father.

, Ordinarily, a six-year-old girl is to be committed to the custody of its mother unless she be unfit. I do not recall any ease where a commitment has been made otherwise. And where custody is in question of course the age and sex of a child are to be considered. Here, there is nothing wrong whatever alleged or appearing against the mother, who is devoted to her child. She has not acted adversely to the child’s welfare in any way whatever. Her taking the child to Florida where she obtained employment and the decree of divorce may not be so characterized. Nor should I characterize the father’s clandestinely taking the child back to New Jersey as in any way bearing on a decision on the question of custody.

An inference may be made from the mother’s testimony that she came back to New Jersey from Florida because the father had brought the child back here. Indeed, she testified that if custody should be awarded to her she expected to return to Florida with the child. This testimony probably would have had some importance on the issue as to the validity of the Florida decree had my conclusion on that head not rested on the fact that there had been a contest and an examination on the question of domicile in the Florida court.

The correctness of the conclusion that custody. should be awarded to the mother is somewhat confirmed by the display hereinbefore made of the letters written by the father which contain a revelation of his immoral conduct. But the correctness of the conclusion needs no such support, for without any consideration of the letters, it is clear that it is for the best interests of the child that its custody should be committed to its mother. A little girl, so young and frail as this one, needs and should have a woman’s care; and, fortunately, she has been cared for by the woman who occupies one of the apartments in the house where the child now is with its father. This woman’s plans with respect to earing for the child are uncertain but I judge that she, a mother herself, who is friendly to both parties but who apparently thinks that the child should be with its mother, is but waiting for this issue of custody to be decided before relinquishing her care of the child.

The conditions of the home proposed by the mother, that is, her present home in a single-family house owned by one or both of her parents in a good residential neighborhood, are better than the apartment house conditions of the father,, his apartment being in the house in a business neighborhood owned by the woman who is now caring for the child. This circumstance usually is not a vital factor on the question of custody but it is not to be minimized. The maternal grandparents are in the home proposed by the mother; the child lived there for a time when she was cared for by the maternal grandmother, whose testimony I heard, and the maternal grandmother is willing to care for the child while the mother is at work. The mother has worked for a long time and in the restaurant of the father and apparently she needs to work.

In view of the testimony, I think the order for custody should provide that presently the child is not to be taken out of the state except on the consent of both parents. However, the child is to be committed to the mother’s custody with no restriction on the mother’s going to Florida seasonally for work provided the maternal grandmother remains at her present home and is caring for the child there.

A visitation provision is to be settled after further hearing from the parties. However, as they have fully testified orally, the direction now is that the father state in writing to the court with details what visitation he thinks should be accorded to him, within ten days from the' date of the delivery of these conclusions to his solicitors; and that within said ten days a copy of such statement is to be sent to the solicitor of the mother, whereupon she is to deliver her statement on the same head to the court, and at the same time is to deliver a copy thereof to the solicitors of the father.