author: Bergen, J.

text:
    Elizabeth J. Hughson, complainant-appellant, v. Amanda M. Hughson, defendant-respondent.
    [Submitted March 27th, 1916.
    Decided June 19th, 1916.]
    1. The statute (Comp. Stat. p. 3169 § 16), which limits a mortgagee’s right of entry on the mortgaged premises to twenty years after the right has accrued, is not a bar unless the possession of the mortgagor and those claiming under him has been adverse and hostile to the mortgagee during the statutory period, and where the mortgagor or his grantees recognize the mortgage by paying interest or part of the mortgage debt, such act is plenary evidence that the possession is not adverse.
    2. To bar such right of entry upon the ground of adverse possession, non-payment of any part of the mortgage debt within the statutory period is not alone conclusive of an adverse holding. It is persuasive, but not controlling, and may be repelled by proof that the possession of the mortgagor was permissive and not adverse.
    3. If nG payment be made by the obligor on the bond, which a morti gage is given to secure, within the statutory limitation relating to such obligations, a payment by one not the obligor would not, at law, remove the bar of the statute as to the obligor, but a payment on the mortgage debt by a grantee of the obligor is a recognition of the mortgagee’s right to enter on default, and rebuts any presumption that possession is hostile or adverse.
    On appeal from a decree of the court of chancery.

      Mr. John H. Van Winkle and Mr. Winfield S,.Angleman, for the appellant.

      Messrs. King & Vogt, for the respondent.
   The opinion of the court was delivered by

Bergen, J.

The complainant filed her bill to foreclose two mortgages, b®th given by Caleb Hughson to Stephen O. Horton, who bequeathed them to his wife and she assigned them to the complainant September 8th, 1896. One of the mortgages bears date October 21st, 1873, and was given to secure the payment of $1,000, $500 of which matured April 1st, 1875, and $500 April 1st, 1876. This mortgage covered two tracts of land containing, respectively, sixty-one and seventy-six hundredths and seven and nine hundredths acres, and was given to secure the entire purchase price of the mortgaged premises conveyed by the mortgagee to the mortgagor.

The other mortgage bears date March 7th, 1876, payable April 1st, 1878, for $1,258.91, and embraced the same premises as well as the undivided one-third interest ,of the mortgagor in an adjoining tract of fifty acres of land which he held as a tenant in common with the complainant and their brother, the latter dying subsequently the complainant and her brother Caleb inherited the deceased brother’s share, so, that at the death of Caleb, in 1908, the title to the tract of fifty acres was vested in him and the complainant in equal shares as tenants in common, and Caleb having in and by his last will and testament devised to his wife, the defendant, all his lands, she now holds the title to the two tracts described in the. first mortgage, and also the equal undivided one-half part of the tract of fifty acres, the undivided one-third of which is included in the second mortgage.

The defence set up is, that as no entry was made on the lands by either of the mortgagees within twenty years next after such right accrued (Comp. Stat. p. 8169), the complainant is barred of any right of • entry, and as an incident thereto of the right to foreclose defendant’s equity of redemption, and, consequently, her bill disclosed no equity. The vice-chancellor, relying alone upon the fact that no payments had been made on account of either the principal or interest within the statutory period, decreed that the bill be dismissed, from which judicial action the complainant has appealed.' The learned vice-chancellor apparently relied too implicitly upon some of the expressions of Mr. Justice Dixon contained in the opinion read by him for this court in Blue v. Everett, 55 N. J. Eq. 329, without applying the explanatory modification thereof as stated by Mr. Justice Depue in Colton v. Depew, 60 N. J. Eq. 454. In the latter case, the learned justice, speaking for this court, conceding the evidential effect of the non-payment of any part of the mortgaged debt within twenty years, held that it was not conclusive, and that the mortgagor must go further and show that his possession during the statutory period had been adverse and hostile to that of the mortgagee. Mr. "Justice Dixon, in Blue v. Everett, supra, said: “At law the bar of the statute could not be obviated by payments made on account of the debt, for the mortgagor does not hold the land under the mortgagee, and the payments could not be deemed rent, or in any sense the price of possession, but would be referred solely to the personal obligation held by the mortgagee.” Eeferring to the foregoing quotation, Mr. Justice Depue, in Colton v. Depew, said: “This language does not accurately express the legal principle which controls when such a payment is made by the owner of the mortgaged premises in its effect upon the statute of limitations. The mortgagee has two securities for the debt, the bond and the legal "estate in the mortgaged premises. A payment on the debt may be made by the obligor on the bond or by the grantee of the mortgaged premises. Where the obligor has conveyed the premises his grantee has no interest in keeping alive the contract to pay contained in the bond. A payment of interest or part principal on the debt may be made by the obligor or by his grantee. If such payment be made by the owner, who was not the obligor, it would not, at law, remove the bar of the statute of limitations in an action against the latter. The possession upon which the statute attaches must be adverse. The mortgagee is not barred by the possession of his mortgagor paying interest.” In the same opinion the learned justice said: “It does not follow that because the complainant’s right of possession accrued more than twenty years before suit brought, his .right of action is gonq, for to produce this result it is necessary to introduce a second factor, to wit, that there has been an adverse possession covering this statutory period. * * * A person may be in possession of property for a period longer than that mentioned in the statute, without paying rent or making any compensation for his occupation of the premises, and not be within the statute of limitations. Possession to make the statute available must be adverse for the full period prescribed by the statute.” Prom this the logical deduction is, that payment on account of the mortgaged debt by the mortgagor or his grantees would be plenary evidence that the holding by the mortgagor or his grantees was not adverse or hostile to the mortgagee, and that non-payment within the statutory period does not, standing alone, make the statutory bar conclusive, for there must be something in the case which shows that the holding was hostile and adverse. The absence of any payment during the statutory period would be very persuasive evidence of an adverse holding, but it may be overcome by facts and circumstances showing that the mortgagor or his grantees were not holding adversely against the right of entry of the mortgagee. We are of opinion that the facts in this case show that the owners of the mortgaged premises were not holding the possession thereof adversely to the rights of the mortgagee.

It appears that the wife of Stephen O. Horton was the half-sister of Caleb Hughson, the brother of the complainant; that the complainant had lived all her life in the house standing on the fifty-acre tract, and that she was over eighty years of age when this bill was filed; that her .brother Caleb Hughson married the defendant in 1872, and brought her to live in the house with him and the complainant; that they have lived there ever since as one family, eating at the same table; that during the lifetime of Stephen O. Horton the land, or some part of it, was leased by Caleb Hughson -to the Coplay Mining Company, the rent reserved being royalties, and that by an agreement between Hughson and Horton the royalties w-ere paid to Horton, to be credited on account of the mortgaged debt; that according to the proofs, payments were made as late as January 12th, 1883, so that when the mortgages were assigned to the complainant, in 1896, the statutory period had not run. Since the time these mortgages were assigned to the complainant she has lived constantly on the farm, and, apparently, according to the proofs in t}iis record, had an equal, if not a controlling, management thereof, at least since her brother’s death.

Charles W. Tuttle testified that he had lived on the farm since 1878, working as a farmer, and on cross-examination testified as follows:

“Q. Where does Elizabeth J. Hughson live?
“A. Lives on the farm.
“Q. Is not she your employer?
“A. I work for her.”

The defendant, who was about eighty-three years of age when called as a witness, testified as follows:

“Q. Now what intermissions have there been between the living together and the separation of you and Elizabeth J. Hughson?
“A. I have been away at various times.
“Q. Eor a long length of time?
“A. Two years at one time, and at another time one year; I can’t just tell.
“Q. How long has she been away?
“A. She never has been away except for short visits to Plainfield and one visit up in New York state, I think.
“Q. Outside of the visits which she has made that has been her home since 1873, has it not?
“A. It has been her home since she was born.”

This witness also testified that the mortgages had never been paid.

Sincé 1896, when this complainant became the owner of the mortgages, she has lived with her brother and his wife, the defendant, on this property, and the latter testified that between 1908 and 1914= she had spent at least three years away from the farm, during which period the complainant was apparently in sole possession of the property. We conclude from this testimony that neither the brother or'his wife, the present defendant, were holding a possession adverse to the right of the complainant under her mortgages.

There is another reason why we think that the holding by the mortgagor was not adverse to the mortgagee. The testimony shows a very intimate relationship between the parties. It also shows that, although interest was often demanded by Mr. Horton during his lifetime, the mortgagor was too impecunious to pay any interest, and it is quite evident from this record that the forbearance was due to the relationship of the parties and the poverty of the mortgagor. When the defendant was asked why the interest was not paid, her reply was: “Well, he didn’t have any way of making any money; the mines took all he had for our living.” Chancellor Vroom, in Wanmaker v. Van Buskirk, 1 N. J. Eq. 265, said that if no payment be made within twenty years, the presumption arose that the mortgage was paid, and that, standing.alone without explanation, would prevail and be tantamount to absolute proof of payment. But he also held that such presumption might be repelled by circumstances. In the case he was considering, the mortgage was given by the husband of the mortgagee’s daughter, and, concerning this, the learned chancellor said: “Upon this part of the case I entertain no doubt; the very situation of the parties is of itself sufficient .to my mind. The mortgagor was a near relative, he had married the daughter of the mortgagee and had issue. According to Lord Erskin, in Hillary v. Waller, 12 Ves. 265, that alone was sufficient. The mortgagor died many years ago, leaving his wife and children in possession; they were not in a situation to pay either principal or interest. To have exacted the payment might have brought distress upon those who depended upon this property for support, and would have been harsh, to say the least of it. To suffer the mortgage to remain without compelling payment was a reasonable indulgence, and ought not to be set up now for the purpose of defeating the claim. One ground for the presumption of payment growing out of the lapse of time is, that a man is always ready to enjoy what is his own. ."Whatever will repel this will take away the presumption of payment, and for this purpose it has been held sufficient that the party was insolvent or a near relation.-’

The facts shown by this record are, that the complainant had lived on this farm ever since she was born, and apparently alone with her brother Caleb until he married the defendant. The relationship existing between Iiorton and his wife and Caleb' Hughson, during his lifetime, was that of brother-in-law ■ and sister, and that of the complainant, a sister* of Caleb Hughson and sister-in-law of the defendant. The record shows that they lived together, getting from the farm a scanty living; that, although interest was demanded by- Horton and his wife, the mortgagor was not able to pay, and it is quite evident, from the testimony in this ease, that the indulgence of-the complainant, and of those who held the mortgage prior to its coming to her, was due to their relationship and the fact that the mortgagors were not able to pay the interest, and to turn them out would have been harsh and almost inhuman. The complainant is entitled to a decree for sale of the mortgaged premises to raise the amount which may be found due on her mortgages, and for that purpose the decree appealed from will be reversed and the record remanded to the court of chancery, to be there proceeded with in accordance with the views herein expressed.

The decree appealed from is reversed, with costs.

For affirmance — None.

For reversal — The CHTEE-JtrsTi.OE, Garrison, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisci-i, Black, White, Teriiune, Heppenheimer, Williams, Taylor, Gardner — 15.


source: Caselaw Access Project

author: Kalisch, J.

license: Public Domain

text:
    Edward S. Savage and Margaret T. Savage, complainants-respondents, v. John Blanchard Edgar, defendant-appellant.
    [Argued March 10th, 1916.
    Decided June 19th, 1916.]
    1. A chancery court cannot enjoin the prosecution of a pending legal action because an accord and satisfaction was completed after issue was joined, for a supplemental answer would render such defence available in the legal action.
    2. Unless obtained by fraud, an executed accord and satisfaction is a complete defence in a legal action.
    3. Where an accord and satisfaction is pleaded as a defence in an action at law, but plaintiff claims it was obtained by fraud, the fraud issue can be determined in the same action, and relief by injunction is unnecessary.

      On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, whose opinion is reported in 85 N. J. Eq. l&O.

    The complainants filed their bill in the court of chancery to restrain the prosecution of an action at law in the supreme court. The bill and affidavit in support of it disclosed that John Blanchard Edgar, the defendant-appellant, had an action pending in the supreme court to recover $50,000 from Edward S. Savage and his wife, the respondents; that while the action was pending, an agreement was entered into by Edgar and Savage and reduced to writing in which it was recited that it was the desire and purpose of both parties to settle and adjust all matters of difference of accounts between them, and thereupon it was agreed that Savage should transfer to Edgar two hundred and fifty shares of the common stock of the Trembly Point Corporation and should, in addition thereto, pay to Edgar $2,000 in cash, and give him a note for $2,000 more, payable in thirty days. This was to be in full settlement of all claims and demands whatsoever. In consideration thereof Edgar agreed to discontinue the action at once and pay all fees, including his attorney’s ■ fees and counsel fees. The cash was paid, the note was given, and two days afterwards the parties met by appointment in Mr. Savage’s office. Savage took a certificate for two hundred and fifty shares of the Trembly Point stock out of his safe, endorsed it in blank, exhibited it to Edgar, and together they then went to the transfer office of the company to have the stock there transferred to Edgar. -The stock was thereupon delivered to the secretary of the company and he was requested by Savage to transfer the same to Edgar, whereupon Edgar said that he would prefer to have the transfer of the stock made to his wife, and thereupon tire secretary was directed to make the transfer as Edgar had requested, and this was done. Subsequently, Edgar refused to accept the stock upon the grounds that he was not bound to take it until he had ascertained its value, and that investigation had shown him that it was not worth what Savage represented it to be. After complainants filed their bill to stay the action at law, Edgar tendered back the cash and the notes, which Savage refused to accept.
    The bill avers
    “That the said settlement made by the complainants with the said Edgar was positive and final, and was accepted by Edgar together with the property paid and delivered, pursuant to the terms of the same, as a full compromise settlement of the said action of the said Edgar against the complainants, and the agreement of settlement made in writing, as hereinbefore mentioned, has been fully carried out and performed in all respects on the part of the said complainants, but that the said Edgar had violated the said agreement in that he has attempted and is now attempting to bring the said action to trial in the supreme court notwithstanding the same had been fully settled.”
    The case shows that after the settlement was made, and after Edgar, the plaintiff in the action at law, had noticed’ the case for trial, notwithstanding the settlement, that the complainants, defendants in that action, presented a petition to the supreme court in which the agreement was set up, and in which it was averred that the cash and note had been delivered to Edgar 'and the stock had been transferred to Edgar’s wife at his request. In answer to the petition, Edgar set up’ that the stock was not worth what it was represented to be, and that when tendered to him it was made a condition of -its delivery that he should sign a statement that the defendant Savage was making no representation as to its value, except the appraisals made by Mr. Corbin and Mr. Day, that Edgar declined to sign this, and, under the advice of his attorney, declined to accept the stock. The supreme court declined to perpetually restrain the action because of the controverted facts upon which the application was based, discharged the rule with leave to the defendants to file a supplementary answer setting up the settlement and preserving to Edgar the right to take issue upon such answer and have the questions of fact settled by a jury.
    Prom the refusal of the supreme court to perpetually restrain the action at law, the respondents herein appeal to this court, and upon a motion made by the appellant herein, in that cause, the appeal of the respondents was dismissed upon the grounds that tlie action of the supreme court rested upon its discretion and therefore was not appealable.

      The respondents declined to avail themselves of the leave granted to them by the supreme court to file a supplementary answer setting up the settlement, but, instead, filed their bill in chancery to restrain the action at law, and obtained in that tribunal a rule to show cause why the prayer of their bill to restrain the appellant from prosecuting his action at law should not be granted and a temporary stay of the action. Upon the return of the rule the order to show cause was made absolute and the stay continued. The appellant then gave notice to strike out the bill upon two grounds, one of which was that the bill did not allege any ground for equitable relief. The vice-chancellor refused to strike out the bill, and it is upon that order and the order restraining the appellant from prosecuting his action at law that the appellant appeals to this court.

      Messrs. Garrick & Wortendyke, for the appellant.

      Mr. Clark McK. Whittemore and Mr. Robert II. McGarter, for the respondents.
   The opinion of the court was delivered by

Kalisch, J.

The interposition of the court of chancery between the appellant and the respondents in their controversy in the supreme court cannot be sustained upon the fácts before us. The agreement, in writing, entered into by thé appellant and the respondent Savage for a complete accord and satisfaction of the matters in dispute between them and which were the subject of an action at law then pending in the supreme court, is clear and explicit in its terms. The fact that Savage fully performed his part of the agreement was not controverted. The legal effect of the performance by Savage of his agreement was to extinguish the appellant’s claim that was made the basis of the action against Savage in the supreme .court. But as this settlement was made between the litigants privately and without judicial sanction, the settlement was, as a matter of course, not entitled to judicial recognition until brought properly before the court in which the action was pending. The appellant, it appears, not only refused to perform that part of the agreement whereby he had obligated himself to discontinue the action, but attempted to repudiate the entire agreement and insisted upon proceeding to a trial of the cause. The action of the appellant in that respect could in no manner alter the legal effect of the settlement.

It would be an anomaly in the judicial procedure of this state to countenance the right of the respondents to oust their adversary from the forum in which he was properly seeking his remedy, because, peradventure, he might set up facts in reply to their defence of an executed compromise, matters which are only cognizable in a court of equity. For that is practically what the respondents are seeking to do.

Under the state of facts presented, the respondents’ regular course to pursue was to have applied to the court in which the action at law ^as pending for leave to file a supplementary answer setting up the executed accord. Before the adoption of the new Practice act, such a situation would have been met, under the common law, by an application for leave to file a plea puis darrein continuance. This plea was peculiarly adapted to the situation which the facts set out in the respondents’ bill and affidavit present. In discussing the office of this plea, Steph. Pl. (on p. 66) says: “It is to be observed that the effect of such a plea is not to impugn the right of action altogether, but only the right of further maintaining it; i. e., since the period when the matter of defence arose; and in this respect it differs from an ordinary plea in bar which is in the nature of an absolute and general exception to the plaintiffs’ right to maintain the action and tends to deny that it was properly brought. A plea of this kind is always pleaded by way of substitution for the former pleas on which no proceeding is ever had. It may be either in bar or abatement; and is followed like other pleas, by a replication and other pleadings, till issue is obtained upon it.”

If the plaintiff’s replication to the additional plea set up matter which did not raise an issue of fact, cognizable in a court, of law, the proper course was to demur, but now, under the new practice, such a situation may be met by a motion to strike out the reply to the supplemental answer.

The accord set up and executed by the respondent Savage will afford a complete defence to the appellant’s action at law, unless it should appear that the appellant was induced to sign a release (for such was the legal effect of the written agreement- fully performed by the respondent Savage), by false and fraudulent representations as to the value of the stock. Of course, if the execution of the instrument was induced by fraud, that can be shown in an action at law.

While there is a resemblance in the circumstances of the present ease to those which appeared in Headley v. Leavitt, 68 N. J. Eq. 591, and Trenton Street Railway Co. v. Lawlor, 74 N. J. Eq. 828, in which cases this court held that the jurisdiction of the court of chancery was properly entertained, yet, upon an analysis of the cases cited, there will be found as much difference intrinsically from the case sub judice, as one might expect to find Between an original writing and its facsimile. The prominent distinguishing feature between the present case and the cases cited is that in neither of the latter AAras there a complete accord. In Headley v. Leavitt, supra, the defendant áttempted to set up in the action at law on certain promissory notes the accord and satisfaction as a defence; but the proof showed that he had not performed his part of -the compromise, and the defence, therefore, Avas overruled. Subsequently, he did perform and filed a bill to restrain the action at law on the ground that he had an equitable defence, and then the court directed that the action at laAv should be restrained unless and until the plaintiff consented that the complete accord and satisfaction might be set up as a defence. In that case this court, speaking through Mr. Chief-Justice Guarniere (on p. 595), said: “The subject of litigation which resulted in the judgment was one which was cognizable by a legal rather than an equitable tribunal. The contract which the appellant sought to set up as a defence to the action in the supreme court would, if it had been executed by him, have constituted a legal and not an equitable defence to that action. Subsequent performance of the ■contract on his part gives him no right to have the forum of the litigation changed to a court of equity and to deprive the respondeut of the determination of a jury upon the question of the existence or non-existence of the contract.”

In Trenton Street Railway Co. v. Lawlor, supra, the agreement for compromise was made while the action at law was pending. Lawlor’s attorney, with authority from Lawlor, agreed to take a certain sum in compromise, and this Lawlor refused to accept. The case, therefore, ivas one of unexecuted accord.

In the present case, it appeared that the accord had been fully executed by the respondent Savage, and of which the respondents could have availed themselves by a proper plea in the action at law, hence there was no ground for the interference of a court of equity. The appellant’s motion to strike out the bill for want of equity should have prevailed.

The decree will be reversed, with direction to the court of chancery that the bill be dismissed, with costs.

For affirmance• — None.

For reversal — The Chief-Justice, Garrison, Swayze, Trenchard, Bergen, Minturn, Kalisoh, Black, White, Terhune, Heppenheimer, Williams, Gardner — 13.


text:
    In the matter of the estate of Fredericka C. McKinney, deceased.
    [Argued March 14th, 1916.
    Decided June 19th, 1916.]
    1. In a will contest, the- burden of establishing that testatrix, when the will was executed, was unconscious, and hence incapable of making a will, was on the contestant. '
    2. In a will contest, evidence Held sufficient to establish testatrix’s testamentary capacity at the time the will was executed.
    3. In a will contest, evidence Held not to show that the will was the result of undue influence exerted upon the testatrix.

      On appeal from a decree of the prerogative court advised by Vice-Ordinary Iiowell. .

      Mr. Ralph E. Lum, for the appellants.

      Mr. Robert II. McCarter and Mr. Arthur F. Egner, for the respondent.
   The opinion of the court was delivered by

Kalisch, J.

The controversy in this case concerned the execution of a paper-writing purporting to be the last will and testament of Fredericka C. McKinney, deceased.

The respondent filed a caveat against the probate of the will. His attack upon it was, firstly j that the testatrix, at the time of its alleged execution, lacked testamentary capacity to make a will; secondly, that the will was the result of undue influence exercised by the beneficiaries named therein.

The Essex county orphans court decided that the testatrix lacked testamentary capacity and decreed that probate of the will be refused. From that decree the appellants appealed to the prerogative court, and that court affirmed the decree of the orphans court upon the like ground.

The case is before us for review on an appeal by the appellants from the decree of the prerogative court.

The two principal questions presented for decision by this appeal are whether the testimony before the court below and now under review will reasonably support a finding that the testatrix lacked testamentary capacity when she executed the will, and if the testimony fails in that respect, whether it will reasonably support a finding to , the effect that the beneficiaries named in the will exercised undue influence upon the testatrix ?

An examination of the testimony in the case shows that the testatrix was seventy-nine years of age, and that she made the will in dispute in her last .illness and about twenty-four hours before she died. The only property that she owned was a piece of improved real estate, estimated to be worth from $15,000 to $20,000, which she originally acquired by her husband’s will ior “the term of her natural life or widowhood.” The testatrix remained a widow. The property was subject to a mortgage. By the terms of the will the testatrix was obliged to keep up the premises-, and to have the appellant “carefully instructed and educated at the expense of the estate” -until he shall have attained the age of sixteen years. It appears that the appellant McKinney was an orphan and no relation to either the testatrix or her husband, but was taken by them, treated and reared as a member of the family from the time that he was an infant. At. the time of the death of the husband of the testatrix the appellant McKinney was between eleven and twelve years of age. The ease shows that the testatrix was obliged to expend considerable sums of money in carrying out the behests of her husband’s will and in supporting the father of the respondent, who occupied a portion of the demised premises free of rent, and another member of the family, which caused the interest on the mortgage and taxes to fall in arrear; the mortgage was foreclosed and the property sold, and the testatrix bought in the same, in July, 1888, negotiating a new mortgage to cover the arrears. Charles E. McKinney, the grandson and respondent in this case, was the only descendant lineally. In 1909, the testatrix made her will, and after making bequests to various friends of specific sums of money and a bequest to the appellant McKinney, who she designated as her godchild, she bequeathed and devised the rest of her personal and real estate to the respondent and made him one of her executors. Some time subsequent to the making of the will the testatrix consulted with John Monteith, her lawyer, who drew the will, as to her legal rights to sell the real estate. It appears that this inquiry wgs prompted by statements made to the testatrix by her grandson, to the effect that she had only a life interest in the property, and therefore no legal right to dispose of the fee, and that if she attempted to make any disposition of the same, he would start legal proceedings to restrain her. In the month of January, 1914, the respondent filed his bill of complaint, in the court of chancery, against his grandmother, attacking her title to the property and claiming the same in his own’ right, as remainder-man, and asking that she be made to account for the income received by her from the property and that she be made to pay and cancel a mortgage of $1,000 which existed on the property. The testatrix was in poor financial circumstances. Her income from the property when fully rented was about $71'a month. The suit against her proved a source of great anguish and a burden to her because of the undutiful conduct of her grandson, and because she was compelled to go to the expense of $100 in employing Mr. Monteith to defend her, which sum she could illy afford to pay, but which she did manage to pay, in two installments.

Bearing in mind the foregoing facts, it is not to be wondered at that the testatrix deemed the respondent to be unworthy as an object of her bounty. Indeed, it would have been a solecism in human conduct if the testatrix, in view of the anguish her grandson had deliberately added to the infirmities of her age, had noticed him in the will, made in her last illness.

While it is true that the respondent had agreed with Mr. Monteith to discontinue the suit against his grandmother, before she made the will in dispute, it could,hardly be expected that the sting of the respondent’s ungrateful behavior which put his grandmother to expense and financial strait, of which she bitterly complained, and the exhibition of the respondent’s selfish conduct throughout, had been effaced from her thoughts when she was called upon, by the lawyer who drew the will, to mention those who were to benefit by its provisions.

We now approach the consideration of the first-contention, of counsel for respondent, that the testatrix, at the time the will in dispute was executed, lacked testamentary capacity. The specific charge made is, that at the time when it is alleged that the will in controversy was executed by the testatrix, she was unconscious, and hence incapable of making a will. The burden of establishing this proposition was on the contestant. The facts surrounding the making of the will are briefly these: On Friday, June 19th, 1914, the testatrix was taken seribusly ill. Dr. Phelan, the family physician, found her suffering from edema of the lungs and part of the throat which, as he testified, caused difficulty in swallowing and air hunger. She had diffieulty in breathing and speaking. On the following day, Saturdaj', he found her a “little improved.” On the next day, Sunday morning, he found that the edema had not progressed much and thought that she was a little bit improved. On the succeeding Monday, the 22d day of June, the doctor visited his patient three times. His first visit was made at ten o’clock in the morning, and he testified that he found her a great deal worse than on Sunday; there was an extension of the edema. The doctor, on his direct examination, was asked: “Q. Did you have any difficulty^ on your Monday morning visit, in getting her attention ?” he answered, “Why her eyes seemed active, but there was no conversation.” When asked whether he could get her attention, he said he could but could not get her to speak. The doctor visited his patient the second time on that day about ten minutes after four o’clock and remained with her about twenty minutes. He testified that he found the edema spreading and the condition of the patient worse; that the intelligence of a patient in that condition is all right, but the difficulty in breathing occupies the patient’s mind to such an extent as to prevent giving attention to anything else. On his cross-examination the doctor testified:

"Q. And on Monday morning you found the condition a little worse than it had been on Sunday night?
“A. Yes, sir.
“Q. But she was still entirely conscious?
“A. Her eyes were bright.
“Q. Her eyes were bright and alert?
“A. Yes, sir.
“(?. Active; her eyes were active?
“A. Yes, sir.
“Q. Indicating definitely the presence of intelligence to you?
“A. Yes, sir.”

On further cross-examination the doctor, speaking of his patient’s condition at four o’clock on that afternoon, says that hehad no distinct recollection of her physical appearance at that time, except the difficulty in breathing and the “non-response on being spoken loudly to;” that he could not swear that she was unconscious. The doctor did not see his patient again until ten o’clock on Monday night, and then it was for the first time, according to his testimony, that he found her unconscious.

There is no indication in the doctor’s testimony that the testatrix was unconscious any particular length of time before ten o’clock on Monday night, and, therefore, the testimony of witnesses who saw the testatrix and speak of her condition between the hours of four and ten o’clock becomes of the utmost importance.

The will in controversy was executed by the testatrix shortly after six o’clock on that evening. About an hour before the will was executed, William Koelhoffer, a priest, connected with the Catholic Church, and particularly with St. Mary’s Abbey, administered the sacraments to her. His affidavit, which was introduced as testimony in the cause by consent of counsel, is to the effect that when he administered the sacraments to the testatrix she was conscious; that while there, he heard the question asked of the testatrix whether she wanted to make a will, and she replied in the affirmative. It was after the priest had departed that Philip J. Schotland, a reputable member of the bar of this state, came to draw the will. Schotland testified that he received a call on the telephone at about six o’clock from the appellant, who said that the testatrix desired to make a will, and that it was necessary that it should be done at once. Schotland had no previous acquaintance with the appellant, and it appears that his selection for the task was through the recominendation of a Mr. Silverstein, an architect. Schotland responded with haste to the urgent call, and when he arrived at the bedside of the testatrix, he found gathered in the room the appellant, a trained nurse and the appellant’s wife. The testatrix was propped up in bed and in a reclining position. The appellant said to the testatrix: “This is the lawyer that I sent for you to draw your will. How .you can tell him what you want.” After this introduction Schotland sat down on a chair by the bedside, and just then the appellant’s wife asked the testatrix if she wanted to see Charles, referring to the respondent, to which she replied in the negative, and when next asked by the appellant whether Charles should be sent for, she replied “Ho.” Schotland then told them all to leave the room, that he desired to get whatever information the testatrix had to give him from the testatrix alone, whereupon they left the room. Schotland further testified that he had difficulty at first making out what the testatrix was saying, and he requested her to repeat it again, which she did, and that he understood her clearly and that she told him that she wanted everything left to three people. And to illustrate the clearness of the mind of the testatrix at that time it will serve the purpose to give Mr. Schotland’s version, in his own words, as to what took place between them:

“She told me that she wanted everything that she had to go to Frank McKinney, Annie Itache and Millie — she said ‘Millie,’ so I asked her what her full name was. She gave me the last name, but I couldn’t make it out, so I said, ‘Mrs. McKinney, where is Millie or Amelia.’ She said, ‘Here.’ So I went to the head of the stairs and called for Millie or Amelia — asked, ‘Who is Millie or Amelia?’ Mr. and Mrs. McKinney and Miss Amelia Clark came up, so I called Miss Clark into the room and I asked Mrs. McKinney if that is the Amelia she meant. She said, ‘Yes.’ I then in Mrs. McKinney’s presence got the full name; it was Millie or Amelia F. Clark — I don’t quite recall now — and I told them to go. I told them they could go again and remained alone with Mrs. McKinney. I then wrote out all the written in parts of this instrument. After I got through I went to the head of the stairs and called for the nurse, asked to have the nurse come in, and then I did what I testified to on direct examination as to the execution of the will.”

As to that the witness had testified:

“Miss Weston came into the room and I then, in Miss Weston’s presence, read the entire will to Mrs. McKinney, asked her if that was exactly the way she wanted it; she said, ‘Yes;’ I then asked her if she wanted anybody else remembered in the will; she said, ‘No.’ I then said to her, ‘Is that all you want, that everything that you possess should be divided into three equal parts, Annie Itache to get one part, Amelia Clark another and Frank R. McKinney another.’ She said, ‘Yes.’ I then asked her who she wanted as executor, and she again repeated she wanted Frank McKinney as executor. I then held' the will in front of her and asked her if this was her last will and testament; she said, ‘Yes.’ I' asked her if she wanted Miss Weston and myself to witness her signature to this paper as her last will and testament; she said, ‘Yes,’ and Miss Weston propped her up with pillows, held her up — and I put the will on a book or something, F forget just what it rested it on — and handed her a pen and she made her mark, Miss Weston and I both there looking on. I then, right alongside of the bed, in front of Mrs. McKinney and Miss Weston, signed my name and office address as witness, and Miss Weston signed her name right underneath mine and her address as witness, right alongside of the bed in front of Mrs. McKinney, who saw us do it, and we saw each other do it.”

The testimony quoted hears not only the imprint of truthfulness, but, moreover, shows that Mr. Schotland acted in the matter with a proper conception of his duties and in a conscientious manner.

That the testatrix was conscious and was able to carry on a conversation intelligently at the time the will was executed is satisfactorily established by Helen Weston, the trained nurse and witness to the will, who, apart from her employment as a nurse, was a disinterested witness. She testified tRat the testatrix did not become unconscious until ten o’clock on Monday morning. She fully corroborated Schotland’s testimony as to the consciousness of the testatrix as to her surroundings, her ability to carry on an intelligent conversation, her full comprehension and appreciation of the disposition that she was making of her property by the will she executed in the presence of the witness. There was other testimony coming from witnesses who might properly be termed interested witnesses, which tended to establish that the testatrix, at the time she executed the will, though physically weak and suffering, was mentally alert and fully understood the disposition that she was making of her property. The value and effect of that testimony need not be considered on this issue, in view of the fact that the affidavit of the priest, and the testimony of Schotland and the trained nurse, sufficiently establish the testamentary capacity of the testatrix at the time the will was executed. Their testimony stands practically uncontradicted. We are unable to find anything in the testimony of Dr. Phelan which shows the contrary. In this state of the evidence there was no reasonable basis for the finding by the prerogative court and the orphans court that the testatrix lacked testamentary capacity at the time she executed the will.

It is next argued for the respondent that the will was the result of undue influence upon the testatrix.

In support of this contention, it is asserted that the lawyer who drew the will was chosen by the appellant. The word “chosen” does not accurately express how it happened that Mr. Schotland was called upon to draw the will. That has been discussed in the earlier part of this opinion. Mr. Schotland was an utter stranger to the appellant and to Mrs. McKinney, and the beneficiaries named in the will. Mr. Sehotland took his instructions from Mrs. McKinney, and no one else. There is, therefore, no significance to be attached to the circumstance of his employment. It is further contended since it appeared that in a prior will made by the testatrix in 1909 she had made a bequest to a sister, who then resided in Albany, and in ease she should predecease her, to her daughter, of the sum of $1,000, and gave to Amelia Clark $1,000, and the daughter of Mrs. Bache $500, and to the appellant $100, and to St. Bridget’s Catholic Church $100, for masses for tire repose of her soul, and the residue of her estate to the respondent, the fact that she made no provision in the present will for her sister or for the saying of mass for the repose of her soul, was irresistible evidence of undue influence. We think the will made by the testatrix was a most natural one for her. to make under the circumstances. Her grandson, the respondent, had proven himself, b3r his conduct toward her, unworthy of her bounty. Neither the sister nor niece of the testatrix is here complaining. The testatrix made the same provision for Amelia Clark and gave to Mrs. Bache, instead of her daughter, the sum of $500. She gave to the appellant McKinney, to whom she was attached as a foster mother, the residue of her estate. The fact that she failed to make any provision for saying masses for the repose of her soul might readily be accounted for that she was. willing to trust those who were beholden to her for what she had bestowed upon them to religiously see to that. We have been unable to discover anything in the evidence or circumstances of the case which in the slightest tends to uphold the contention of the respondent that the will was the result of undue influence.

The views herein expressed lead to the conclusion that the will of the testatrix was improperly refused admission to probate and that the decree under review in that regard must be reversed.

We have considered, in connection with this appeal, the appeal of the respondent from that part of the decree of the prerogative court which decreed that $638.69, being expenses incurred by the appellants in connection with their appeal from the orphans court to the prerogative court, be paid from the estate of Eredericka C. McKinney, deceased, and find the appeal to be without merit.

That part of the decree of the prerogative court directing such costs to he paid out of the estate is affirmed.

No. 78—

For affirmance — None.

For reversal — Ti-ie Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisoh, Black, Terhune, Heppenhbimer, Williams, Taylor, Gardner — 14..

No. 85—

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisci-i, Black, Terhune, Heppenhbimer, Williams, Taylor, Gardner — 14.

For reversal — None.


text:
    Joseph Klausner, complainant-respondent, v. Phebe Watson, defendant-appellant.
    [Submitted March 27th, 1916.
    Decided June 19th, 1916.]
    1. Where the vendee failed to perform on the day set, and did not prior thereto record his option contract, he could not thereafter compel specific performance in suit against the vendor only, who, on failure to perform and prior to recording the contract, sold to a third person without notice of the contract, such third person having in good faith and for valuable consideration acquired an equitable title.
    2. It is a settled rule of equity jurisprudence that, where the vendor is not the owner of the equitable title of the land which he has agreed to convey, a court of equity will not decree specific performance by such vendor.

      On appeal from a decree of the court of chancery advised by Vice-Chancellor Griffin.

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

      Mr. Harry Lane and Mr. Isaac F. G-oldenhorn, for the respondent.
   The opinion of the court was delivered by

Kalisch, J.

The respondent, the complainant, in the court of chancery, filed his bill to compel the appellant to specifically perform an agreement, in writing, entered into between the appellant and one John O’Connor, of the city of Yew York, on the 25th day of June, 1913, whereby the appellant agreed to convey by warranty deed, on or before the 25th day of July, 1913, free and clear of all encumbrances, certain lots of land situate in Jersey City, and designated in the agreement, for the consideration of $2,800, which was to be paid as follows: $550 to be paid in cash at the time of the execution of the agreement, which was done, and the balance of $2,250 was to be paid upon the delivery of'the deed. Eollowing the acknowledgment on the agreement there was an assignment of it, in blank, subscribed by John O’Connor, per J ames D. Cullimore, attorney. Subsequently, on the 8th day of September, 1913, O’Connor formally assigned the agreement made between him and the appellant to Joseph Klausner, the respondent. The agreement and assignment were recorded September 20th, 1913.

The vice-chancellor found, and the testimony justifies his findings, that on the day fixed for closing the title, the attorney who represented the purchase]- and his assignee were not ready to perform, and by agreement the time for passing the title was extended, and that thereafter there were numerous meetings between the parties during the summer of 1913, and that the many delays that occurred in the matter were due to the respondent’s attorney and were inexcusable, and that the matter then rested in abeyance until a few days prior to the 19th day of September, 1913, when the appellant’s attorney notified the respondent’s attorney that the matter had to be closed on that date, but did not state in any way that if the title was not passed on the 19th of September, that the appellant would consider the contract at an end; that on the day last mentioned the appellant appeared at her attorney’s office ready to deliver the deed, but neither the respondent nor his attorney appeared; that the respondent’s attorney offered as an excuse for his absence that he w^as engaged in the trial of a cause which lasted nearly the day, and then, with the purchase price in his pocket, he hurried to the appellant’s attorney’s office, but he had gone for the day; that on the next day, the respondent’s attorney placed the contract and assignment on record and two days later wrote a letter to the appellant’s attorney notifying him" that his client was ready to close the title and gave as an excuse for not closing the title at an earlier date that there were taxes against the property unpaid and mortgages and other encumbrances; that this excuse was fully met by the appellant who had in hand releases of all existing liens against the property, excepting the taxes and these she purposed to pay out of the purchase-money; that on the 19th day of September, 1913, when the respondent failed to appear to consummate the agreement with the appellant, the appellant entered into an agreement with George W. Cranwell, by which she agreed to convey to him, in consideration of $2,-600, the lots of land she had by her prior agreement agreed to convey to O’Connor, the appellant. It also appeared that this fact was set up in the appellant’s, answer to the bill of complaint.

Upon this state of the facts the vice-chancellor held, that since the time for the performance of the agreement appeared not to have been intended by the parties to be of the essence of the agreement, the delay in that regard did not operate to nullify it, and that since there was no evidence to support a conclusion that there was a rescission of the contract, the respondent was entitled to a decree requiring the appellant to execute a warranty deed free and clear of all encumbrances.

In view of the fact that when the appellant made the agreement to convey to Cranwell, neither the agreement to convey to O’Connor nor the assignment of that agreement by O’Connor to Klausner was on record, and, therefore,- so far as the record revealed, there was no notice to the public of any such transaction.

There is not a spark of testimony in the case tending to show that when the appellant conveyed to Cranwell that the latter knew of the prior agreement of appellant to convey the same property to the respondent. Cranwell’s legal status, therefore, was that of a person who had in good faith and for a valuable consideration acquired an equitable title to the property in litigation.

This situation makes it manifest that it is utterly impossible for the appellant to conform to the requirement of the decree to convey the property to the respondent clear and free of all encumbrances.

Cranwell had acquired an equitable- interest in the property. He was not made a party to the suit. Even if he were made a party, the complainant could not successfully maintain a bill in equity for specific performance unless he was in a position to show notice on the part of Cranwell which would compel Cranwell to join in the conveyance with the appellant. ■

It is a settled rule of equity jurisprudence that where the vendor is not the owner of the equitable title of the land which he has agreed to convejr, a court of equity will not decree the specific performance by such vendor of a contract for the sale,of the asame. Flattau v. Logan, 72 N. J. Eq. 338, and the cases there collated.

The decree will be reversed, with costs.

For affirmance — Hone.

For reversal — The Chief-Justice, Garrison, Swayze, Trenohakd, Parker, Bergen, Minturn, Kalisch, Black, White, Terhune, Heppenheimer, Williams, Taylor, Gardner — 15.


author: Black, J.

text:
    William E. R. Smith, proponent-appellant, v. Elizabeth Haines, Edith J. Adams, George McM. Godley, Carrie R. Scholfield, Charles P. Scholfield, the College Board of the Presbyterian Church of the United States, William H. Hulick, legatees, and Randolph Rodman, named in said will as executor, whose name was obliterated, and Harry G. Runkle, respondents.
    [Argued March 16th and 17th, 1916.
    Decided June 19th, 1916.]
    William Runkle's will was dated May 11th, 1912; a codicil thereto was dated April 29th, 1913. The testator died January 31st, 1914. 1-Iis will and codicil were in an envelope endorsed in testator’s handwriting, “Hast will and testament of William Runkle;” by direction of the testator to his secretary, she gave the envelope to William E. R. Smith, after testator’s death. The will showed that the name “Wm. E. R. Smith” had apparently been written over an erasure of the name “Randolph Rodman,” the word “East” over an erasure of the word “South.” On the margin of the paper was written, “Wm. E. R. Smith to be executor.” The intention of the testator being clear, the court will lay hold of slight circumstances to give legal effect to such intention. — Held, in this case, that letters testamentary should be issued to William E. R. Smith, as executor, and. not to Randolph Rodman, the alteration having been made before the execution of the codicil.
    On appeal from a decree of the prerogative court, reported in 97 Ail. Rep. £96.

      Messrs. Church & Harrison, for the proponent-appellant.

      Messrs. McCarter & English, Mr. Jehiel G. Shipman, Mr. Charles B. Storrs, Messrs. CondictCondict & Boardman, Messrs. Bum, Tamblyn '& Colyer, Mr. William Huele, Jr., and Messi’s. Griggs & Harding, for the respondents.
   The opinion of the court was delivered by

Black, J.

In this case, the orphans court of Essex county admitted to probate, the will and codicil of William Runkle, with the name of Randolph Rodman as, executor, excluding William E. R. Smith as executor. This decree was affirmed, on appeal, by the prerogative court. We think this part of the decree should be reversed; the will and codicil should be admitted to probate with the name of William E. R. Smith as executor. The facts, in brief, are: William Runkle, of East Orange, died -on the 31st day of January, 1914; his last will and testament was dated May 11th, 1912; a codicil thereto was dated April 29th, 1913. The will and codicil are each in the handwriting of the testator. They were in his custody immediately prior to his death, folded together, and enclosed in a large unsealed envelope, endorsed in his own handwriting, “Last Will and Testament of William Runkle.” Immediately after his death, and pursuant to instructions given by the testator himself, the envelope containing the will and codicil was delivered to William E. R. Smith, by Miss Tully, the testator’s secretary. Mr. Smith promptly filed them in the surrogate’s office, in precisely the same condition as ■ they were when he received them. The will, on its face, in item twenty-eighth, on page 11, shows, in the testator’s handwriting, that he wrote the name “Wm. E. R. Smith” over an apparent erasure. On the same line, also, over an erasure, he wrote the word “East.” On the margin of the paper was written, “Wm. E. R. Smith to be executor.” A photographic enlargement of this portion of the will, admitted in evidence, shows that the name “Randolph Rodman” was originally written in the place now occupied by the name “Wm. E. R. Smith.” The word “South” was written in the will, before the word “East” was interlined and inscribed over it. The obliteration was effected by chemicals. Mr. Smith’s residence was in East Orange; Mr. Rodman’s residence was in South Orange. As stated above, the orphans court of Essex county held, that the erasure of the name Randolph Rodman, and the substitution of the name “Wm. E. R. Smith,” is invalid and nugatory; that Randolph Rodman is legally 'entitled to the appointment as executor. The issuance of letters testamentary was made to him. The decree of the orphans court of Essex county was affirmed by the prerogative court, for the reasons stated by the orphans court of Essex county. The reasons for admitting the will and codicil to probate by the orphans court are set forth in a strong, lucid opinion by Judge Martin, supported by a wealth of citations.

The dominant point on this branch of the case, in Judge Martin’s opinion, is in these words: “There is nothing in the evidence, not even a suggestion, or a scintilla of evidence, to show when this alteration was made. * * * The proponent has failed to sustain the burden of ‘proof to show that the name William E. R. Smith was written in prior to the execution of the codicil.” With this conclusion of the learned trial judge -we cannot agree. It is demonstrated, if not conceded, that it was the intention of Mr. Runkle to have Mr. Smith as his executor. There is no mistaking the actual intent of the testator. In that situation, the courts will lay hold of slight circumstances to cany into legal effect, the will of the testator. This thought runs through the entire legal literature, applicable to the construction of wills. Stress is placed by Judge Martin, in the orphans court, upon the testimony of Mr. Kinsley, the expert witness in handwriting, as to the pen and ink used in writing the name of “Wm. E. R. Smith,” compared with those used on pages 1 and 2 of the will and those used in tire body of the will, from pages 3 to 12. The court found that the pen and ink used were different from the remainder of the will and codicil, which apparently were influential factors, in the conclusion reached by the orphans court. Mr. Kinsley, however, when the testimony is analyzed, said that the name “Wm. E. R. Smith” and the word “East” are in a dark ink, that resembles somewhat ink Mo. 1, being the ink used in uniting the first and second pages of the will, although he would not say it is ink Mo. 1. He could not say, definitely, whether it is ink Mo. 1 or a different ink. From this testimony proponents draw the conclusion, that when, the inks are so similar, that a professional expert cannot point out any difference, it is a fair inference that they are the same. So, in reference to the testimony, as to the pens used. The fact that Mr. Runkle made a codicil-nearly a year after the date of the will shows, that he knew that to make a change in his will he had to re-execute the will, or make a- codicil, and that a codicil would re-execute the will and validate any changes in it. It would, therefore, seem to be inferable that he would not attempt to change his will by any less formal method than a codicil. The evidence regarding Mr. Smith’s appointment as executor couples it to the first two pages’of the will. Inferentially, the same pen and ink were used, and the latter being upheld, as executed before the codicil, the former should be also. It seems hardly necessary to pursue this line of argument further in detail. The conclusion, which we have reached from all the circumstances, is, that the reasonable- probabilities are to the effect that Mr. Smith’s name was inserted before the execution of the codicil by the testator. Letters testamentary should be issued to William E. R. Smith, reversing that part of the decree which directs the letters to be issued to Randolph Rodman. The view which we have taken renders it unnecessary to consider the mooted point, argued at length in the briefs of counsel, as to the presumptions of unexplained alterations in a will, whether made before or after execution, on which point we express no opinion.

Mor is it necessary to discuss the doctrine of dependent relative revocation. That -doctrine is hardly applicable, to the substitution of one name in place of another as executor.

The decree of the prerogative court, affirming the decree of the orphans court of Essex county, issuing letters testamentary to Randolph Rodman, as executor of the last will and codicil of William Runkle, deceased, is reversed and remanded to the orphans court of Essex county, to enter a decree in accordance with this opinion, and to issue letters testamentary to William E. R. Smith as executor.

For affirmance — Mone.

For reversal — The Chief-Justice, Garrison, Swatze, Parker, Bergen, Minturn, Kalisch, Black, 'White, Ter-HUNE, HEPPENHEIMER, WILLIAMS, TAYLOR, GARDNER — 14.


author: White, J.

text:
    Franz Realty Company, appellant, v. Maurice H. Welsh, respondent.
    [Argued March 15th, 1916.
    Decided June 19th, 1916.]
    1. The term “other process,” as used in section 4 of the Landlords and Tenants act, providing for a preference in favor of the landlord for one year’s arrearage of rent out of the goods and chattels of the tenant on the demised premises and taken by virtue o£ any execution, attachment or other process, includes an order of the court of chancery appointing a receiver for an insolvent corporation-tenant and directing such receiver to take possession of said goods and chattels and to convert them into money. Citing Wood v. MoCwrdeU eft oí., 49 N. J. Eq. 488.

    2. The preference created by section 4 of the Landlords and Tenants act does not constitute a lien prior to the “taking” by execution, attachment or other process therein referred to, but only a statutory provision in the nature of an inchoate lien which may be defeated by certain acts of the tenant himself prior to such “taking,” and which does not become effective at all should such “taking” never occur. Citing Woodside v. Adamis, 40 N- J- Law Jlf.

    3. The act of 1892 (subsequently embodied in sections 83 and 84 of the 1896 revision of the Corporation act), giving a lien prior to all other-liens (except mortgages of real estate and chattel mortgages fulfilling certain specified requirements) to employes of insolvent corporations for unpaid wages during two months before the institution of the insolvency proceedings, modifies section 4 of the Landlords and Tenants act (passed in 1877) to the extent that it makes the landlord’s right under the provisions of that section to be paid one year’s arrearage of rent out of the goods and chattels on the demised premises, subject to the superior right or lion of the employe of an insolvent corporation-tenant for two months’ unpaid wages as secured by sections 83 and 84 of said Corporation act.
    On appeal from a decree of the court of chancery.

      Mr. James B. Nugent, for the appellant.

      Mr. Michael J. Tamey, for the respondent.-
   The opinion of the court was delivered by

White, J.

The Standard Electric Lamp Company, a tenant of the appellant, was adjudged insolvent and a receiver appointed for it by the court of chancery. The appellant filed' a claim for one year’s arrearage of rent, and the respondent, an employe of the insolvent corporation-tenant, filed a claim for labor performed within two months prior to the commencement of the insolvency proceedings. The receiver sold the goods and chattels on the demised premises and did not realize enough to pay both claims. He thereupon gave preference to the landlord’s claim for rent, whereupon the employe appealed to the court of chancery, where his appeal was sustained and preference given to his claim for wages. From this ruling of the court of chancery this appeal is taken.

Section é of the act respecting landlords and tenants (Comp. Stat. p. 3066) provides that no goods and chattels being upon any lands and tenements which are or shall be leased, shall be liable to be taken by virtue of any execution, attachment or other process, unless the party at whose suit the said execution or other process is issued out shall, before the removal of the goods from off the said premises, pay to the landlord all rent due for said premises not exceeding one year’s rent.

In Wood v. McCarbell et al., 49 N. J. Eq. 433, decided in 1892, Vice-Chancellor Bird held that an order of the court of chancery appointing a receiver and directing him to take possession of the goods and chattels of an insolvent corporation-tenant and to convert them into money, fell within the term “other process,” as used in the above section, and that in consequence the landlord of the insolvent corporation-tenant was entitled to be paid by the receiver rent in arrear not exceeding one year out of the proceeds of the sale of the goods and chattels on the demised premises, as a preferred claim. This ruling, approved by Vice-Chancellor Pitney in Hatch v. Van Dervoort, 54 N. J. Eq. 518, decided in 1896, has been universally accepted as the law of this state since that time, and may now be regarded as settled. Vice-Chancellor Walker in Weinstein v. Herman, 81 N. J. Eq. (at p. 239).

It is now claimed by the appellant that the effect of this provision of the Landlords and Tenants act, as thus construed, was to vest in the landlord a lien upon these goods and chattels on the demised premises before the institution of the insolvency proceedings, and therefore prior to the vesting of the lien for two months’ wages created in favor of the Employe by sections 83 and 84 of the Corporation act, the latter lien not vesting or arising "until the institution of -the insolvency proceedings, as was decided in Mingin v. Alva Glass Manufacturing Co., 65 N. J. Eq. 463.

We do not agree with this view. The right of the landlord, under section 4 of the Landlords and Tenants act, is, in the absence of an actual distress, no't a lien at all. Woodside v. Adams, 40 N. J. Law 417. It is a statutory right arising under certain conditions. It might, prior to the institution of the insolvency proceedings, have been defeated by the tenant himself by a bona fide sale or chattel mortgage of the goods and chattels in question, or by their consumption. At most, it was but a statutory right, possibly in the nature of an inchoate lien, maturing, in effect, into an actual lien only under certain conditions prescribed by the statute.

There was, therefore, no lien in favor of the landlord prior to the time when the lien of the employe under the Corporation act arose under the construction of that act in Mingin v. Alva Glass Manufacturing Co., supra. This disposes of the landlord’s claim to a lien superior to that of the employe and, leaves only the question whether the employe has a lien superior to the right of the landlord instead of only on a parity with it.

We think, with the court of chancery, that the employe’s lien is superior.

The Landlords and Tenants act was passed in 1877, whereas the act giving this preference to the employe’s wages for two months was passed subsequently in 1892, and afterwards substantially copied into sections 83 and 84 of the 1896 revision of the Corporation act. If, therefore, the Corporation act contains a provision inconsistent with a provision of the Landlords and Tenants act, the latter must be construed as modified or repealed by implication to the extent of such inconsistency. This is particularly so where, as here, the impliedly repealing provision is contained in an act about which Mr. Justice Garrison, speaking for this court, in Massey v. Camden and Trenton Railway Co., 78 N. J. Eq. 539, quoting with approval the language of Vice-Chancellor Van Fleet in Mersereau v. Mersereau Company, 51 N. J. Eq. 382, said: “The statute of 1892 covers the whole subject-matter embraced by the prior law, with an additional highly important provision, and was obviously designed to take its place and stand as its substitute.”

Section 83 of this (the Corporation) act provides that in case of the insolvency of any corporation its employes and workmen shall have a first and prior lien upon its assets for wages for two months prior to the institution of the insolvency proceedings, and section 84 provides that such lien shall be prior to all other liens which can he or may he acquired upon or against such assets, except the lien of all chattel mortgages which have been given and recorded more than two months preceding the date of the institution of the insolvency proceedings or have been actually given within that two months for money loaned or goods purchased within that period, and except mortgages of real estate.

We think that this language, “lien which may be acquired,” most aptly describes the lien or right in the nature of a lien which would arise upon the “taking” mentioned in section 4 of the Landlords and Tenants act, and that, therefore, under the expressed provisions of section 84 of the Corporation act, the lien arising in favor of the employe upon the institution of the insolvency proceedings is given priority over the right of the landlord under section 4 of the Landlords and Tenants act.

Eor the reasons above expressed the decree of the , court of chancery is affirmed.

For affirmance — The Chibe-Justice, Garrison, Swayze, Tkbncitard, Parker, Bergen, Mtnturn, Kalisch, Black, White, Terhune, Heppenheimer, Williams, Taylor, Gardner — 15.

For reversal — None.


author: Vredenburgh, J.

text:
    In the matter of the estate of Patrick Mannion, deceased.
    '[Decided November 15th, 1915.]
    1. The fact that a testator, on the occasion of the execution of his will, made publication of it before he signed it does not invalidate it.
    2. The rule of law as to testamentary capacity in cases where habitual intoxication on the part of the testator has been shown, is that there will be no presumption that incapacitating drunkenness existed at the time of the execution of the will.
    3. A man may habitually indulge in intoxicants and yet possess testamentary capacity if at the very time of the execution of the will he was able to and did clearly comprehend the nature and effect of the business in which he was engaged.
    4. Under the evidence in this case, it was Held there was no adequate foundation for the claim that the decedent had insane delusions as to the objects of his bounty.
    5. The influence acquired over a testator by kind oflices, unconnected with fraud or contrivance, is lawful and proper.
    On appeal from the prerogative court. On caveat against probate of will.
    The will was admitted to probate by the surrogate of Hudson county, and on appeal therefrom by the caveator, the orphans court of that county decreed the dismissal of the appeal. Prom that decree the caveator appealed to the*prerogative court, which affirmed the decree of the orphans court. Probate was contested by testator’s brother John.
    Affirmed.

      Mr. Merritt Lane, proctor for and of counsel with the appellant.

      Mr. David F. Edwards and Mr. Theodore Rurode, proctors and of counsel with the respondents.
   The opinion of the court was delivered by

Vredenburgh, J.

The validity of the testamentary disposition of the property of the deceased, involved in this appeal, is attacked by the caveator on the ground, first, that the writing was not formally executed in the manner prescribed by law, in that, publication preceded the signing; secondly, that the testator did not at its execution possess the mental capacity to make a will, and that he was possessed of such insane delusions as to the objects of his bounty as to make the will ineffective; thirdly, that the will was the product of undue influence exerted upon the testator at the time of its execution by George A. Bowman, the principal beneficiary under it.

The specific point made in relation to the formal execution of the document is based on the fact that the subscribing witness, Mr. Lubell, testified the testator made publication of thé instrument before he had signed it, and it is insisted that this invalidated the will.

While it is true the witness in the beginning of his evidence made this statement, yet, in continuing his testimony, he further clearly stated that the testator also declared, after he had signed the will, that it was his last will and testament. .His precise language, after his recall and before the case was closed, was, that after the testator had signed the will by making his mark,

“I asked liim, ‘Do you acknowledge this to be your signature?’ and he said, ‘Yes,’ and I said, ‘Do you declare this to be your last will and testament?’ and he said ‘Yes,’ and I said, ‘Do you desire us to subscribe as witnesses to this paper as your last will and testament?’ and he said, ‘Yes.’ After that we [meaning the witnesses] .signed.”

That this was a true rehearsal of the occurrence is fortified by the language of the attestation clause, which was faultless, and recited in the usual form, as. follows:

“Signed, sealed, published and declared by the said Patrick Mannion as and for his last will and testament,” &c., thus furnishing prima facie evidence that the signing preceded the publication.
The witness is a reputable lawyer of this state, and no reason is given why his testimony should be discredited, and no effort was made to impeach his testimony.
But even if it had appeared conclusively by the evidence that the only publication of the will by the testator had preceded his signatory act, such circumstance would not have been legally sufficient to invalidate the will.
This court thoroughly considered the question in the case of Lacey v. Dobbs (1901), 63 N. J. Eq. 325, and there expressed the opinion that “the order of the requisites to the execution of a will is not material. The testator may declare the writing to be his will before, or after, or contemporaneously, with the making or acknowledging of the signature. But attestation is a different matter.”

Subsequently (in 1910), this court, in the case of Bioren v. Nesler, 77 N. J. Eq. 562, approved and reaffirmed this construction of the supplement of March 12th, 1851 — the “act concerning wills.” In speaking of the order of succession of the requisites to the execution of a will with regard to the attestation clause, the court held that it was essential to the validity of a will that everything required to be done by the testator should precede in point of time the subscription or attestation of the two witnesses, but recognized and left unquestioned the soundness of the statement of the law in its previous opinion in, Lacey v. Dobbs — that publication by the testator might legally either precede or succeed in point of time his signature.

This construction of the act concerning wills has thus, authoritatively, settled that the testamentary document is not complete until the testator has signed or acknowledged his signature, and declared the paper to be his will, and the attesting witnesses have also duly subscribed it, but that it is wholly immaterial whether the testator made such declaration or publication before or after or contemporaneously with the making or acknowledging of his signature.

We conclude, therefore, that the first ground taken by the caveator against the validity of the paper in question, to wit, that its publication by the testator preceded his signing of it, is without support both in respect to the facts of this case and the law applicable thereto.

The testator’s property disposed of by his will was of the simplest character and easily understood by him. It consisted, with the exception of some trifling articles of personalty, of cash deposited in four savings institutions. This money he had earned in small sums in the course of about thirty years of exposed work in the several positions of deckhand, bridgeman and gateman on the ferry-boats of the Pennsylvania Eailroad Company at their ferries over the Hudson river between Jersey City and New York. He had begun there to work first as a mere bootblack, when about seventeen years of age, and had by thrift and frugality accumulated and saved several thousands of Hollars. He had thus shown ample mental ability and foresight to earn and save his wages against the time of need when his family and himself might be driven by necessity to use it. He was about forty-five years old when he executed the will, at the prime of life when mental capacity is ordinarily at its highest mark.

The caveator does not question the capacity of his thrifty brother to acquire and save and invest money, but challenges his capacity to dispose of it properly when his own (the caveator’s) selfish interests are concerned.

The testator’s wife and only child died suddenly in July, 1911. His home was thereby broken up^ and he went, in a few months thereafter, to live in New York City at the house where his brother, John, and his wife lived. The testator, who was then alone in the world, naturally turned to his only brother for companionship and consolation under the double affliction he had just suffered. That it had a serious effect upon his after life, cannot be doubted. While the caveator is an interested witness, and his statements, in the absence of the decedent to contradict them, are to be received with, caution, yet it is probably true, as stated by John, that Patrick, became intemperate in drinking. John testified that Patrick came under the influence of liquor- — ■ to use his precise expression — “pretty much all the time,” and that on one occasion, about three months after his wife’s death, Patrick said to him that “he was going to drink himself to death so he’d be with her.” If John, while the testator was living in the house with him after liis wife’s death, had treated Patrick with kindness, instead of brutality, it is probable the present document would have been very differently framed. But it is shown clearly by the evidence that testator was maltreated and abused by John during the few months they lived together before the making of the will.

Mr. Thomas Pratt, a ticket-seller for the Pennsylvania Bail-road Company, an officer employed by that company, a disinterested person, when called as a witness, stated that after the testator went to live with John, the witness often saw the former, who found fault about the way John and his wife treated him, and I quote from his testimony as follows:

“And then one day he come to me with his eyes blackened, and he was bunged up, more or less, and it looked to me as if he had been in a barroom fight, and I asked him what was the matter, and he said he had an argument at the house, and I said, ‘You did not get that in an argument,’ and he said they had a little scrap, and when he went he slammed the door, and I said ‘Did the door hit you in the eyes and bung you up like that?’ and he said, ‘No, Betsy called me back’ (that is what he called his brother — afterward I learned his name was John), and he says Betsy called him back and one of them Betsy, or his wife, held him while the other beat him.”

The appearance of testator with his blackened eyes-certainly corroborated Patrick’s statement that someone had used violence toward him. John, when called afterwards in the case, made a very brief denial of the assault by him, but his wife, who was also charged with having'taken active part in beating Patrick, was not produced as a witness, and has not contradicted the statement. Other witnesses testified to hearing testator make statements respecting his treatment by his brother, John, while living with him, similar in substance to those contained in the second clause of the will quoted below.

It is shown clearly in the testimony that Patrick was a frail man and of so weak physique that the boat officers changed his position on the boats from exposed to unexposed places, and he was probably no match for John in any quarrel or fight.

When testator came to dictate his will, we see by its terms that J ohn’s treatment of him' had made a very deep impression upon him. This is manifest upon its inspection. On its first page is a clause reading as follows:

“Second. To my brother, John Mannion, I give and bequeath the sum of one hundred ($100) dollars, which súm I consider extremely liberal, in view of the shameful way he has always treated me, robbing me of my personal belongings whenever he could, and pawning them so he could raise money for drink, and cursing and abusing me generally during the time I boarded with him, paying his rent and meeting all his household and other expenses.”

We have no reason to doubt that this solemn testamentary declaration was founded on fact. At all events John’s conduct toward the testator had' occurred but a few months previously and was fresh before testator’s mind.

Is it within the range of reasonable probability to suppose that Patrick when he came to make his will had any delusion with regard to such violent treatment?

The will was executed at about one o’clock p. m., on June 14th, 1912. The evidence clearly shows that at that time the testator had not been drinking intoxicants but was entirely free from their effects. He died on June 30th, 1912. His attendant, James Daere, testified that on the morning of June 14th, 1912, he gave him several glasses of milk, and that only one of them had any whiskey in it, and in that witness put two spoonfuls, because the testator was not eating anything, and he said he would like to have it. He appeared to look to him that day the same as any other day. “He was sick, but I did not see anything else the matter with him.”

The rule of law as to testamentary capacity in cases where habitual intoxication has been shown, is that there will be no presumption that incapacitating drunkenness existed at the time of the making of the will (Koegel v. Egner, 54 N. J. Eq. 623), and that a man may habitually indulge in intoxicants and yet possess testamentary capacity if, at the very time of the execution of the will, he was able to, and did, clearly comprehend the nature and effect of the business in which he was engaged. Fluck v. Rea, 51 N. J. Eq. 233.

In Bannister v. Jackson, 45 N. J. Eq. 707, the learned ordinary thus expressed himself, viz.:

“My conclusion, after a careful examination of this case, is, that at the time the will in dispute was made, Mr. Bannister’s habitually excessive indulgence in strong drink had not produced a fixed mental disease sufficient to destroy his testamentary capacity, and that at the very moment of the execution of that document he was not so intoxicated that the act in which he was engaged was vitiated.”

So, in the case sub judice, we think, there is no foundation in the evidence for the claim that the testator’s indulgence in strong drink had produced any fixed mental disease in him, certainly not such as was sufficient to impair his testamentary capacity; nor do we think there was sufficient foundation under the testimony for the claim that he was possessed of insane delusions as to the objects of his bounty.

On the contrary, the evidence abundantly shows, especially that of Mr. Lubell (a subscribing witness to and draftsman of the will), who took his instructions carefully from the testator but a few moments before it was finally executed, that immediately before and at the very time of the execution the testator was able to, and did, clearly comprehend the nature and effect of the business in which he was engaged. Even if his mind had been at previous times affected because of the excessive use of alcohol, the proof is convincing that at the hour of the execution of the will his mind was clear enough to appreciate what he was' doing, to know the proper objects of his bounty and to desire and intend that those whom he named in his will should be the recipients thereof, as well as to appreciate that he was disposing of his property, the nature and amount of which he fully comprehended. We think he had, under our decisions, sufficient mental capacity to make a valid will.

There was a vast amount of important testimony given on this subject sustaining testator’s mental capacity to malee the will, but the evidence has been so fully collated in the opinion sent up from the orphans court, as well as, to some extent, in the opinion of the learned vice-ordinary, that I refrain from repeating it.

As to undue influence there is no proof that Bowman ever exercised any influence. He was asked by testator to get a lawyer, which he did, but offered to go out of the room while instructions were being given, and was expressly detained by the testator. He did not come back even to attend the execution of the will.

The evidence established beyond question that he had been a faithful friend to the testator from1 the time the latter had been a mere bootblack, and had advised him to save his money and place it where it would, itself, earn money. It was to his paternal interest in him that the testator attributed his own success in earning, preserving and investing his money.

The fifth clause of the will impressively reflects the testator’s state of mind toward Bowman, and the reasons prompting the bequest to him, in the following words, viz.:

“Fifth. To my good and true friend, Geo. A. Bowman, of number [residence], who has cared for and watched over me, for the past twenty years as a father over his child, I give and bequeath,” &e.

It was as true with the decedent as it is with humanity in general that at the last those friends who most impressed him with their love and kindness remained longest in his. memory and held the strongest claims upon his testamentary gratitude.

Influence acquired over a testator by kind offices, unconnected with fraud or contrivance, is lawful and proper. In re Gleespin’s Will, 26 N. J. Eq. 523; 3 Bouv. (Rawle’s 3d Rev.) 3352 (1914), and cases cited there.

The decree appealed from should be affirmed.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchakd, Parker, Bergen, Minturn, Kalisch, Black, Vrbdbnburgh, White, Terhune, Hbppenheimbr, Williams, Taylor — 15.

For reversal — Hone.


author: Per Curiam.

text:
    William A. Baker, appellant, v. Charles Bagnole et al., respondents.
    [Submitted March 27th, 1916.
    Decided June 19th, 1916.]
    On appeal from a decree of the court of chancery advised by Advisory Master John Franklin Fort, reported in 98 Atl. Rep. ■ 857.

      Mr. Gaetano M. Belfafto, for the appellant.

      Mr. Samuel Roessler and Messrs. Peirce .& Hoover, for the respondents.
   Per Curiam.

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

For affirmance — Ti-ib Chief-Justice, Garrison, Swayze, Trenohard, Parker, Bergen, Minturn, Kalisch, Black, White, Terhune, Heppenheimer, Williams, Taylor, Gardner — 15.

For reversal — None.


text:
    Booth & Flinn, Limited, respondent, v. Crucible Steel Company of America et al., appellants.
    [Submitted March 27th, 1916.
    Decided June 19th, 1916.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery.

      Messrs. Munn & Qlvurch, Messrs. Yredenburgh, Wadi & Carey, Messrs. Edward A. '& William T. Day and Messrs. Michael T. & Hugh C. Barrett, for the respondent.

      Messrs. Peirce & Hoover, for the appellants.
   Per Curiam.

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

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kaliscpi, Black, White, Teriiune, Heppenheimer; Williams, Taylor, Gardner — 15.

For reversal — None.


text:
    Lillie M. Brewster, respondent, v. Albertine A. Entz et al., appellants.
    [Submitted March 27th, 1916.
    Decided June 19th, 1916.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Griffin, whose opinion is reported in 85 N. J. Eq. Jfd9.

      Mr. George Whitefipld Betts, Jr. (Mr. George C, Sprague on the brief), for the respondent.

      Mr. Cornelius Doremus, for the appellants.
   Per Curiam.

The decree is affirmed, for the reasons given by Vice-Chancellor Griffin. By a slip of the pen, he is made to say that he will allow a decree setting aside the assignment. As the point of the opinion is that the assignment was a forgery, the language of the decree itself is correct in adjudging that the assignment is null and void.

For affirmance — The Chiee-Justice, Garrison, Swayze, Trenohakd, Parker, Bergen, Mjnturn, Kalisoi-i, Black, White, Teri-iune, Heppenheimer, Williams, Taylor, Gardner — 15.

For reversal — None.


text:
    Camden Safe Deposit and Trust Company v. Home for the Aged and Infirm.
    [Submitted December 6th, 1915.
    Decided June 19th, 1916.]

      Mr. J. Russell Qarrow, Mr. William J. Kraft and Messrs. Bleakly & Stockwell, for the appellants.

      Mr. Solomon S. Iszard, Mr. George J. Bergen and-Mr. H. Starr Giddings, for the respondents.
    Affirmed.
   For affirmance — Tbenohaed, Beegen, Kalisch, Black, White, Teei-itjne, Tayloe — 7.

For reversal — The Chief-Justice, Gaeeison, Swayze, Paekee, Mintuen, Heppenheimee, Williams — -7.


text:
    Central Trust Company, trustee, respondent, v. Central Freezing Company of Atlantic City et al., appellants.
    [Submitted March 27th, 1916.
    Decided June 19th, 1916.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes, whose opinion is -reported in 85 N. J. Bq. 868. '

      Messrs. Stackhouse & Kramer, for the respondent.

      Mr. John F. Horned and -Mr. James S. Gradwell, for the appellants.
   Per Curiam.

The decree order appealed from will' be affirmed, for the reasons stated in the opinion filed' in the conrt below by Vice-Chancellor Baches.

For affirmance' — 'The .Chief-Justice, Garrison, Swayze, Trbnohaed, Parker, Bergen, Minturn, EAlisch, Black, White, 1’erhune, Heppbnheimer, Williams, Taylor, Gardner — 15.

For reversal — None.


text:
    John Antonio D’Elissa, respondent, v. Rosa D’Amato et al., appellants.
    [Submitted March 27th, 1916.
    Decided June 19th, 1916.]
    On appeal from a decree of the conrt of chancery advised by Vice-Chancellor Griffin, whose opinion, is reported in 85 N. J. Fq. Jf€6.

      Mr. Anthony Botti, for the respondent.

      Mr. Frank Benjamin, for the appellants.
   Per Curiam.

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

For affirmance — The Chiee-Justice, Gaebison, Swayze, Teenchabd, Paekee, Beegen, Mintuen, Kalisch, Black, White, Teehune, Heppenheimeb, Williams, Tayloe, Gaednee — 15.

For reversal — None.


text:
    Marie Dudley, appellant, v. Edward Dudley, respondent.
    [Submitted March 27th, 1916.
    Decided June 19th, 1916.]
    £)n appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson.

      Mr. Alexander Simpson, for the appellant.

      Mr. Alan H. Strong, for the respondent.
   Per Curiam.

The decree appealed from denied the prayer of a bill filed by Mrs. Dudley for maintenance under section 26 of the Divorce act. The statutory provision is that “in case a husband without any justifiable cause shall abandon his wife, or separate himself from her, and refuse or neglect to maintain and provide for her, it shall be lawful for the court of chancery to decree and order such suitable support and maintenance to be paid and provided by the said husband for the wife * * * as the nature of the ease and circumstances of the parties render suitable and proper in the opinion of the court.” Comp. Stat. p. 2038.

It is apparent from a reading of this provision that in order to entitle the wife to the relief provided thereby, it must appear, not only that the husband has abandoned her, or separated himself from her, but also that he refuses or neglects to maintain and provide for her in such a manner as the circumstances of the parties malee suitable. Assuming that Mrs. Dudley’s claim that her husband had abandoned her is supported by the testimony (a fact which we find it unnecessary to determine), the proof is undisputed that almost immediately after these parties separated Mr. Dudley offered to malm an allowance of $250 a month to his wife; that he has constantly been ready to do this, and has frequently attempted- to persuade her to accept that sum for her maintenance and support. The learned vice-chancellor considered this amount to be a reasonable allowance to the wife, and that for this reason her claim that her husband refused and neglected to maintain and provide for her was contrary to the fact. Our examination of the proofs leads us to the same result. We conclude; therefore, that the decree appealed from should be affirmed.

For affhnnmice — The Chief-Justice, Garrison, Swayze, Trenci-iard, Parker, Bergen, Minturn, Black, White, Ter-HUNE, HEPPENI-IEIMER, WILLIAMS, TAYLOR, GARDNER — 14.

For reversal — None.


text:
    Charles E. Grimminger, appellant, v. Frances E. Grimminger Goodman et al., respondents.
    [Argued March 8th and 9th, 1916.
    Decided June 19th, 1916.]
    On appeal from' a decree of the court of chancery advised by Vice-Chancellor Griffin, whose opinion is reported in 85 N. J. Eq. 425; sub nomine Grimminger v. Alderton et al.

      Mr. Charles E. S. Simpson, for the appellant.

      Mr. Frank G. Turner, for the respondents.
   Per Curiam.

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

For affirmance — The Chiee-Justice, Garrison, Swayze, Trenchard, Parker, Minturn, Kalisch, Black, White, Terhune, Heppeni-ieimer, Williams, Gardner — 13.

For reversal — Hone.


text:
    Ellen P. Harrigan, respondent, v. Sinclair & Valentine Company, appellant.
    [Argued March 15th, 1916.
    Decided June 19th, 1916.]
    On appeal from' a decree of the court of chancery advised by .Vice-Chancellor Lewis, whose opinion is reported in 85 N. J. Eq. 85.

      Mr. William E. Ellis, for the respondent.

      Messrs. McCarter & English, for the appellant.
   Per Curiam.

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

For affirmance — -The Chiee-Justice, Garrison, Swayze, Trenchakd, Parker, Bergen, Minturn, Kalisch, Black, White, Terhune, Heppenheimer, Williams, Taylor, Gardner — 15.

For reversal — None.


text:
    Harrison Land Company, appellant, v. Crucible Steel Company of America et al., respondents.
    [Submitted March 27th, 1916.
    Decided June 19th, 1916.]
    On appeal from' a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 82 N. J. Eq. UU.

      Messi’s. Edward A. & William T. Day, for the appellant.

      Messrs. Peirce '& Hoover and Messrs. Michael T. & Hugh G. Barrett, for the respondents.
   Per Curiam.

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

For affirmance — The Chiee-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Terhune, Heppenheimer, Williams, Taylor, Gardner — 15.

For reversal — -Hone.


text:
    John T. Harrop et al., complainants-respondents, v. Lewis E. Cole et al., defendants-appellants.
    {Submitted March 27th, 1916.
    Decided June 19th, 1916.]
    On appeal from a decree-of the court of chancery advised by Vice-Chancellor Stevenson, whose opinion is reported in SB N. J. Eq. 32.

      Mr. Cornelius Doremus, for the appellants.

      Messrs, Watson & Watson, for the respondents.
   Per Curiam.

The bill in this case was filed to compel the appellants, who were the defendants below, to execute and deliver to the complainant a deed for' certain lands in the county of Bergen, which had been purchased by the defendant Lewis E. Cole, from one Isaacs, in July, 1905. The Tight of the complainants was rested upon the allegation that they had employed Cole as their agent to purchase the property, that he had accepted the employment, and then fraudulently took title in his own name, paying the purchase price, out of his own funds.

The learned vice-chancellor, before whom the case was tried, found from tire evidence before him that' the averment of the bill with relation to the agency was true in fact; and that a constructive trust had been created, by force of which Cole after the purchase of the property held it for the benefit of the complainants, and that the latter were entitled to have the trust executed, and a conveyance made in accordance with the prayer of their bill, upon repayment to Cole of the purchase price; and that this was so, notwithstanding the fact that the employment of Cole was not in writing. In reaching this conclusion the learned vice-chancellor followed the decision of this court in the case of Rogers v. Genung, 76 N. J. Eq. 306.

We concur in the conclusion of the vice-chancellor that the present case is controlled by Rogers v. Genung, and conclude that for this reason the decree appealed from should be affirmed.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenohard, Parker, Bergen, Minturn, Kalisci-i, Black, White, Terhune, Heppeniieimer, Williams, Taylor, Gardner — 15.

For reversal — Hone.


text:
    George M. LaMonte, commissioner, respondent, v. Charles C. Lurich et al., appellants.
    [Submitted March 27th, 1916.
    Decided June 9th, 1916.]
    On appeal from a decree of the .court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported ante p. ®6.

      Mr. Roger Hinds, for the respondent,

      Mr. Abram H. Cornish and Mr. Ottó A. Stiefel, for the appellants.
   Per Curiam.

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

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, Terhune, Heppenheimer,-Williams, Taylor, Gardner — M.

For reversal — Hone.