author: Gbiffin, Y. C.

text:
    Grace Hamill Bey v. John Bey.
    rSubmitted December 15th, 1913.
    Decided May 15th, 1914.]
    1. Where complainant in a suit for separate maintenance claimed that a common law marriage agreement was entered into between her and defendant upon a certain date, she cannot rely upon any other agreement, and proof of subsequent cohabitation with defendant and reputation of marriage is only evidence that the agreement claimed was made.
    2. In determining the sufficiency of the proof to establish a marriage per verba de prassonii, regard must be had to the intent of the parties, the time which has elapsed since the assumption of the relation, and the manner in which the parties had cohabited in the meantime.
    3. In a suit for separate maintenance, evidence held, sufficient to show a common law marriage per verba, de prmenti.

    4. -Where the words claimed to amount to a contract of marriage per verba de pransenH are ambiguous, the intent of the parties may be examined into, as in cases of other contracts, and, if the subsequent conduct clearly indicates that they intended matrimony, they are legally husband and wife.
    5. Where a man and woman have cohabited ostensibly as husband and wife, and are treated by their Mends and relations as such, the law will presume that they have been legally married.
    6. The presumption of marriage arising from cohabitation and repute is rebuttable, and, where it is shown that the cohabitation began meretriciously, or at a time when one party could not marry, the burden is upon the person claiming the marriage to show it independent of the presumption.
    7. AVhere the parties had had secret intercourse without cohabitation, but thereafter began to cohabit openly as husband and wife, and sueb cohabitation continued unbroken for a number of years, the change in the maimer of living, especially when accompanied by a marriage agreement, overcomes the presumption that the original meretricious relations continued.
    8. ’In an action for separate maintenance, where complainant relied) upon a common law marriage, evidence held not to show that complainant had not been faithful to the defendant during the time they had cohabited as husband and wife, and therefore not to rebut the presumption of marriage arising from cohabitation.

      Mr. Charlen M. Mason and Mr. Clyde D. Souier, for the complainant.

      Messrs. 0shorn & Astley, for the defendant.
   Gbiffin, Y. C.

The complainant in this cause, claiming to be the wife of the defendant, by virtue of a non-cevemonious or common law marriage, entered into June 22d, 1904, filed her bill for maintenance. The defendant denies the existence of the marriage. No claim is made that the parties were united by a ceremonious-marriage. The parties lived together until April 3d, 1912; during the intervening period they held themselves out as husband and wife, and were so known among their relatives and friends- and the public generally.

The complainant and defendant were acquainted from childhood. When the complainant was about thirteen or fourteen years of age her mother died, and, pursuant to her ¿tying request, the child was placed in the Convent of the Good Shepherd in the city of Newark. At the time of the mother’s death there were five children, namely, Grace, the complainant, Harry Hamill, Frances Hamill, Mrs. England, and another sister who subsequently died. When the complainant was not quite eighteen years of age she left the convent and lived with her brother-in Newark, and then with her sister in New York, for a period, of about four or five months, and then lived with her sister Frances in a furnished room at 3 Orange Place, in the city of Newark. She says that about six months after she left the convent, about February, 1904, she met the defendant upon the-street in the city of Newark and he kept company with her,. and, about tlie latter end of April or the forepart of Majr, 1904, he asked her to marry him, that she would not then consent, because he wanted to be married by a minister, that they became engaged; he admits that she promised to marry him, but does not say when the promise was made. The complainant in her direct examination, admitted that she had sexual intercourse with the defendant. She was then examined by her counsel, as follows:

“Q. Now on June 22d, 1904, what conversation did you have in regard to marriage?
“4. Well, he asked me to. be his wife, and I consented.
“Q. And what did he say to you, do you recall?
“4. No, only that he asked me to be his wife.
"Q. Where were you to be married?
“4. Why, when I asked him where we were to be married I wanted a priest.
“Q. What did he say to that?
“4. He had no use for a priest.
“Q. Well, what did you say?
“4. He said we would live without a ceremony.
“Q. What did you do, Mrs. Bey, after this conversation?
“4. Why, I agreed to be his wife.
“Q. And what did he do?
“4. My sister was living there with me, and he said, ‘Come, we will tell Frances yon are my wife and we are married.’
“Q. And where did you go to tell your sister?
“4. My sister was there in the house.
“Q. Where?
.“4. Just in the next room. >
“Q. Well, where is that located?
“4. 3 Orange Place.
“Q. What did he tell her?
“4. That we were married and he had come to live there.
“Q. And did he live there?
“4. Tes, he lived there about three months.”

On cross-examination she testifies as follows: •

“Q. So the first thing he did when he met you was to ask you to marry him?
“A. Yes.
“Q. You did not consent then, did you?
“4. No, I did not consent to marry him because he wanted to be married by a minister, and I didn’t believe in a minister.
“Q. Yes, and you would not consent, and before you finally did consent you had intimate relations with him?
“A. Well. I knew something had to be done. I was engaged to him„ and I asked him if we wouldn’t get married.”

Frances Jíamill, the sister, alter testifying that the defendant had kept company with her sister, the complainant, and called at their house quite some time, was examined as follows:

“Q. Did John Bey ever come there in June, 1904?
“A. Yes, sir; he called there.
“Q. Do you remember what time in June?
“A. It was around June 22d.
“Q. Did you see him when he came?
“A. Yes, sir.
“Q. Did you have .any conversation with him?
“A. He came to me and told me that Grace had consented to be his wile, and that they were going to be married, and he was coming there to live, which he did.
“Q. When was that?
“A. That was June, 1904.
“Q. And when did he come there to live?
“A. He came about the next day.
“Q. And how long did he live there?
“A. Ho lived there for three months, and I left; I had to go to New York to take care of three children of a sick sister who was in the hospital.”

On cross-examination Frances testifies as follows:

“Q. Now, will you go back to 3 Orange Place; you say it was in June, 1904, that John told you he was going to marry your sister?
“A. Yes, sir.
“Q. You were away in what months of that year?
“A. I was at business. I knew that he was keeping company with her, and I knew they were to be married.
"Q. But in June — the latter part of June — wo will say the 22d of June — John Boy had told you that he was going to marry your sister?
“A. He said they were married. He came to me and told me that.
“Q. And immediately they took the room next door to you?
“A. They took a room on the same floor; yes, sir.
“Q. Now, when did they take that room — did they take that room before he told you that they were married?
“A. No, sir; after.”

Harry Ham ill, the brother of the complainant, testified that lie called to see his sister about July or August, 1905, while they were living together at 128 Court street in the city of Newark. His sister introduced him to the defendant as her husband. He then testified as follows:

“Q. Did you say anything?
“A. I spoke to Mr. Bey; glad that I met him, and my sister introduced me to him as her husband.
“Q. Yes?
“A. I asked him, after a little while, I asked Mr. Bey in a natural way, what kind of a wife Grace made.
“Q. Yes, and did he say anything?
“A. He said, ‘All right.’ Later I asked my sister where she was married, how she was married. Mr. Bey was present and butted in, saying, 'Grace and I have agreed to marry and live together.’ I inquired later • about if that was all right, and it was; I was informed of that later by various people, that it was just as good. He told me that he did not believe in a priest or minister.”

The testimony of both parties leaves in doubt the number of times they had sexual intercourse prior to June 22d, 190-1. Taking the time that, elapsed between the first intercourse at the Briffalo Hotel and the second, at 3 Orange Place, which according to the estimate of the defendant was seven or eight weeks, would bring the date of the second intercourse about June 22d, 1904, from which it might he inferred that the second-intercourse was had after the alleged marriage. The fact might have been readily explained by the complainant, but she offered no testimony on the subject. That they had intercourse once is admitted, with the possibility of the number being increased to three or five -times before Juno 22d, 1904. This intercourse was had after promise of marriage and was secret.

On the 22d of June, 1904, there was a complete change in choir relations; they assumed open and public relationship as husband and wife before the world, at 3 Orange Place. A room adjoining that theretofore occupied by the complainant and# Prances was taken. They lived together at this place for about three months (during two of which the sister Prances lived with them); at 100 Mulford avenue for two months; and at New street with friends of the defendant, for about four months. During these nine months they boarded. They then quit boarding and took up housekeeping at 138 Court street, where they lived together for two and a half to three years. While at the latter place, Mrs. Englant (her sister) and her husband stopped with them for three months, and afterwards resided in the same house in separate apartments for about one year. At the same address Harry Hamill and Iris family resided for quite a period. From there they moved to 203 Mulberry street, where they lived one and a half years. Again while living on Mulberry street, Mrs. Englant came to live with the complainant and defendant, and remained with them about six months. It was while at this place that the photo (E.rhibii O-fi) of the complainant and defendant and Mrs. Englant. and her child was taken on the roof. From there they moved to 103, A, Quitman street, where they resided for a year and a month. The father of the defendant, Peter Bey, then sold the saloon business at 477 Washington street to the son, and the parties lived over the saloon for two years and nine months, until the defendant left her, on April 3d, 1912. The total of the period which complainant says they lived together in the .various places exceeds the time elapsed between June 22d, 1904, and February, 1912, but it is undisputed that they lived in the places stated for substantially the periods given.

The complainant says she was introduced to “Aunt Minn,” the sister of the defendant's father, in Washington street, by the defendant, as his wife, about two years after the marriage. She said that her husband’s father wanted her to go down and stay in the place for a few days while he was away on a vacation, and she went down, and at that time she met Aunt Minn.

During the course of the trial a great many bills, contracts and postal cards were offered in evidence, made out against, entered into by or addressed to “Mrs. John Bey,” or “Mrs. Grace Bey.” Two of the postal cards were sent by the defendant to *the complainant. The first of these papers offered in evidence was a gas bill for 203 Mulberry street, made out against “Mrs. John Bey.” There was also an agreement made the 5th day of May, 1907, between Hahne & Company and “Mrs. John Bey” for the purchase of beds, bedding and household furniture on the installment plan, the price being $204.15. Also a pass book in Haline & Company showing the receipt of money order under the above contract, the last payment being $25, the total payments amounting to $157. Also a certificate of membership in the household club of Hahne & Company, which enabled Mrs Bey to purchase furniture, carpets, &c., to the extent of $100, under the plan of club membership. These contracts were made while they were living at Mulberry street. There was also offered in evidence a picture of the complainant and the defendant and the complainant’s married sister and her child, which was taken on the roof of the house at Mulberry street about 1906 or 1907. There was also offered in evidence another picture of the defendant and Harry Hamill, taken together; a postal card addressed by a friend of both parties to “Mrs. John Bey, care of Victoria Apartment House, Mulberry street near Fair street, Newark, N. J.,” postmarked “March 29th 1908;” a postal card dated September 11th, 1907, addressed to “Mrs. Bey, 203 Mulberry street, Newark, N. J.,” from a lady friend; a postal card from the defendant to the complainant, addressed' “Mrs. Grace Bey, 136-a Quitman street, Newark, N. J.,” with the words, “Just fishing, that’s all,” and no signature. This postal card was dated July, but the year is indistinct. I take it to be either 1908 or 1909, because they then lived at Quitman street; a postal written by defendant to complainant from Easton, Pa., where he went on an outing with the Third Ward Guards, addressed “Mrs. Grace Bey, 477 Washington street, Newark, N. J.” There was also offered a postal card written by the complainant’s sister Prances to “Mrs. John Bey, 136-a Quitman street, Newark, N. J.;” two postals, both mailed December 22d, 1910, written by “Aunt Minn,” the one addressed “Mrs. John Bey, 477 Washington street, City,” upon which was written “Best wishes from Aunt Minn,” the other addressed “Mrs. John Bey, 477 Washington street, City,” upon which was written “Best wishes from Aunt Minn;” a postal card written by Aunt Minn to “Mr. John Bey, 477 Washington street, City,” upon which was written the following: “Best wishes for a Happy New Year, from Aunt Minn. Love to Grace — Eula and Aunt Minn.” (Eula is a cousin of the defendant.) This card is postmarked “Newark, December 30th, 1911.”

One Philip McGovern addressed a letter to the defendant as “Friend John,” in which he says,

“I am sending by bearer a waist I promised your wife one night I was down to your place. I also enclose a picture of our model who poses for our advertisements. Do you think the picture somewhat resembles your wife? I think Tom D. promised her one too. Tell her to get after Tom. Trusting both of you will like the waist, I am, sincerely your friend, Phil McGovern.”

Annexed to this letter is the picture referred to in the letter, which, was offered in evidence as part of the letter. This letter was written about 1910. There was' also a hill rendered by L. S. Plaui & Company on March 28th, 1910, to “Mrs. J. Bejr, 477 Washington street, Cit]r,” in which the receipt was acknowledged of her order for live awnings, $24.30.

All of the foregoing bills, contracts, postals and letters were seen by the defendant. Some of them were received by him and delivered to his wife. The awnings last referred to were purchased for 477 Washington street, and the defendant advised with the complainant as to what color she liked, and the defendant sent a check in payment of the hill.

There is also evidence that Peter Bey recognized the complainant as his sow's wife. On redirect examination she testified as follows:

“Q. Was anything said in the presence of his father that you were his wife?
“A. Yes, there was a party that I was visiting his house one night and he told some gentleman there to wait, that he would send him home in his car; he said, ‘Wait, Johnnie’s wife is here and she is going down.’ ”

When the father transferred the store, 477 Washington street, to the defendant, they had some “jubilee,” as they termed it, or opening entertainment, at which his relatives, his uncle and cousins from Brooklyn, “Aunt Minn,” “Uncle Joe,” and his father and stepmother- were present, and the defendant introduced the complainant to them as his wife. That there was such art affair with Peter Bey present appears also by the testimony of George Dougherty, who appeared to he friendly to the defendant. Although the father testified more than a week after the above testimony was given, he did not deny it, but contented himself with the statement that he knew her from childhood and knew that -she was living with his son, neither ever told him they were married, they never visited his house together, he never addressed her as “Mrs. Bey,” always addressed her as “Grace,” never introdnced her as “Mrs. Bey,” or as his daughter-in-law.

If the statement of the complainant that at this “jubilee” she was introduced to all of the defendant’s relatives as his wife was untrue, why were not Mrs. Peter Bey, “Aunt Minn,” “Hncle Joe” and the other relatives called to deny her story? The failure of the defendant to produce these witnesses leads.strongly to the conclusion that if produced they would support the statement of the complainant and perhaps make disclosures on other branches of the case extremely injurious to the defendant’s contentions.

Their production and denial of the story of the complainant would probably tend to weaken belief in all the testimony of the complainant. If they appeared to be of a type different from the witnesses who testified against the complainant theirs would be the only testimony offered by the defendant against the truthfulness and morality of the complainant worthy of belief.

The evidence is therefore overwhelming, that from the time they came together at Orange Place in June, 1904, until lie left her on April 3d) 1912. they constantly lived together ostensibly as husband and wife, claiming to be such, and so demeaning themselves toward each other and were received in society and treated by their friends and relatives as husband and wife. She performed the functions of a wife about the household' and also looked after his welfare in his business, discharging the cook and acting as such until anoiher was employed; went in search of him to bring him home when on sprees; she had access to the money in the store and was permitted to take what she desired-; her sole source of income was from him; their mode of life could not excite in the mind of anyone the suspicion that they were not husband and wife in fact. Shortly after the defendant left her, and while he was at Hot Springs, she heard something about a Smith girl, which led her to go down to see Miss Smith; he returned from Hot Springs on Sunday and went to see the Smith girl that night; the complainant followed; when he came out she says she said a lot (doesn’t remember all she said); she asked him what he was doing there in this girl’s house, that he was a married man; then he cursed her and said he would kill her or break her face or something. Frances, her sister, says she was with the complainant when they caught ihe defendant coming out of the house of Hazel Smith; her sister asked him what he was doing in that house, being a married man, and that he said, “Nothing, nothing.” He got scared and she told him to keep away from there, that she was his wife. He says, “I will never go there again;” she says she caught him in the same place another night about two weeks after. Complainant went to the city clerk’s office in Newark after the commencement of this suit to make inquiry as to whether or not he had obtained a license to marry the Smith girl, because he had told her he had such license; the defendant afterwards attempted to procure a license in Newark to marry the sister of his stepmother (Mrs. Peter Bey) and failing, because of the protest, the defendant, with his father, -went to New York City and procured such license, and the defendant and Sarah Allison, the sister of Mrs. Peter Bey, were thereupon married in New York City by a minister of the gospel. Before their marriage, however, the complainant duly warned Miss Allison that she was Ins wife, and that she should keep away from him. The defendant does not deny the occurrence in front of the house of Miss Smith testified to by the complainant and Frances, but admits that he recalls the occurrence.

The complainant therefore not only acted toward the defendant during the eight years as a lawful wife, but persisted, after he endeavored to throw off the yoke, in declaring that she was his wife.

There are certain sidelights in the defendant’s testimony that tend to prove the truth of the complainant’s testimony as to what transpired, on June ##d, 1904. The complainant says she was engaged to be married to him before there had been any sexual intercourse. This the defendant does not deny; on the contrary, he says she promised to marry him, without fixing any time, but kept putting off the marriage because he could not support her as she wanted to be supported. He says lie met her at Minnie Halsey’s saloon on Greene street about the latter end of April or the forepart of May, and they went to the Buffalo Hotel where they occupied the same room all night. As the defendant does not directly deny that the proposal of marriage was made before this occurrence, but contents himself with saying the first time he asked her to marry him was in June, I must-assume that the engagement had been entered into prior thereto. T-le says he next saw her two or three weeks afterward nt the Buffalo Hotel; that he was plaj'ing the piano; that she spoke to him and invited him to her house in Orange street; that he went to her house a couple of nights afterwards and nobody was home; that he saw her a week or two afterwards; that she came into the place (the Buffalo Hotel); that nothing happened that night; that he saw her two or three weeks after-wards at the same place, and she asked him to come and see her, and she invited him up to her house, and he stayed there •all night. It will be noted that the periods given by the defendant above mentioned of three weeks, two weeks and three weeks, would make eight weeks after about May 1st, which would bring the time when he first stayed all night at the Orange Place house as about the 25th of June. He does not claim that he had intercourse with the complainant other than the one time at the Buffalo Hotel the latter end of April or the forepart of May, until the date when he says he stopped over night with the complainant at her home in Orange Place.

On direct examination he testified as follows:

“Q.- How long did that period at Orange Place last; how long did you go up there?
“A. Why, I cannot say for sure; it might be a couple of months.
“Q. During that period did you ask Grace to marry, you?
“A. I did ; yes, sir.
“Q. When did you first ask Grace to marry you?
“A. In June, some time, it was.
“Q. What did she say?
“A. She said no, I could not support her.”

The defendant does not attempt to explain what occurred or what conversation or understanding was had between them which caused him to take up his home at Orange Place with the complainant the latter end of June, 1904, nor what explanation was made to Frances touching their changed relations, but with one accord, without any prior conversation or understanding and no explanation to Frances, the parties commenced cohabitation, and an adjoining room was taken for Frances.

In the absence of any such explanation, it is plainly apparent that when he says lie asked her to marry him in June this was. the time that the complainant speaks of when he asked her to-marry him and she consented to become his wife, and in pursuance of this agreement to be husband and wife, so understood by the parties and as explained by Frances, he took up his residence at Orange Place. The defendant says that she lived with him as his mistress. He says that during the time they were-living together he repeatedly asked her to marry him, and she refused because he could not support her. He would lead the court to believe that this young woman, cleanly in appearance, without an}^ of the indicia of viciousness, would prefer to load a life of prostitution rather than be a lawful wife, and that she-was deliberately of this mind for a period of eight years — for he says that when they were at Washington street, just prior to his leaving her — he again asked her to be his wife, and she-refused on the ground that he could not support her properly; and then he left her because she would not marry him. and he desired, apparently, to change his mode of living. This statement seems to be absurd. There is nothing in the testimoii3r that shows in the slightest degree that she was dissatisfiéd with his income or their mode of living; on the contrary, his circumstances had continuously improved, and from a small stipend at Orange Place his income had, in the e3fes of this young woman, reared as she was, grown to be a large sum; she had ilie handling of his funds that came into the store, and knew what, he was making.

The complainant denies emphatically that he ever asked her to marry him after June 22d, 1904. The father of the defendant says he wanted John to marry the complainant and told him to marry her; that he knew that John had asked her to marry him, and he knew that he had lived with her for six years; but after John had left her she told him that she was'not ready to marry Johnnie; that he had urged John to marry her. He said, “1 told him” (the defendant) “I was offered twenty-five hundred dollars for the place.” I said,

“Here, John, is a chance for you to go ahead and make some money, and I advise you to get married and settle down. Xou have been going-around for years now and depending on me, and it is pretty near time that you settled down and made some money for yourself.”

He does not say, however, (although pretending to know the relations existing between the complainant and the defendant), and knowing the complainant from childhood, that he ever urged the complainant to marry his son. And yet, if the man had any respect for decency and morality, if he had the natural desire of a parent to have his son lead a moral, upright life, lie would have used his influence -with her to change lier life of shame to one of honorable matrimony in the sight of God and man, and his story not only lacks any semblance of morality or truthfulness but seems also to be somewhat in .conflict with the statement made by the defendant to the complainant, as testified to by the complainant, -where she says that after he returned from the Hot Springs he went to live with his father in Clinton avenue and she saw him while he was there, and, she says, when asked to tell about the interview:

"A. Why he came back to me one night and said he intended to go back to the saloon; that he was afraid if he came back to me and his father knew it he would disown him.”

This conversation is not denied by the defendant.

Another sidelight on the case considering the testimony of the defendant that he had asked her repeatedly during the eight years they lived together to he his wife, is his attempt (which utterly failed) to show that during the period they lived together she was intimate with other men, and after he left her, she visited a house of prostitution about twice a .week with some unknown man. The first story he tells to support his attempt is that of an alleged wrong-doing while they were living at Orange Place. After they had been living together about two weeks at Orange Place (and he places it about the latter end of June) he testifies as follows:

“Q. Now, at the end of that time do you remember seeing George Wallace there?
"A. It was — let me sec — I believe it was in June that I saw Wallace there.
“Q. Well, just state what happened.
“The Vice-Chancellor — What year was that? .
“The Witness — 1904.
“Q. In the early part of what part of July, the early or the late part, or what?
“A. It was late in June.
“Q. Now, just state what happened; what time did you get there?
“A. WThy, I had been there for a couple of hours. It was around ■eleven o’clock, I guess, when I went in.
“Q. Who did you see first when you went in there?
“A. Why, I saw Grace and her sister and Cook, the woman who ran the place, Mrs. Cook.
“Q. Did you see Wallace when you first went in?
“A. No.
“Q. Did you have any relations with Grace that night?
“A. Well, I went to bed with her.
“Q. Well, about what time, do you remember?
“A. I couldn’t say; we were in there drinking and stayed up quite late.
“Q. What happened that night?
“A. I went to bed with Grace and went to sleep and I woke up in the morning and Grace was not in bed, and I went out and called, and nobody answered, and I looked around and it happened that the next door to me was open, and I looked in and she was in bed with George Wallace.
“Q. Did you say anything?
“A. No.
“(?. What did you do then?
“A. Walked out.”

George Wallace, a saloon-keeper, a witness called on tlie part of the defendant, after saying that he knew the complainant and the defendant, that the complainant lived at 2 Orange Place with her sister, that the complainant and defendant were there, and that he, the witness, visited there, testified that on this particular night last referred to Toy the defendant they sat aronnd and enjoyed themselves — that is, the complainant, the lady of the house, himself and one or two other parties; that the defendant was not there at that time, hut came in later on. lie was asked:

“Q. When did he come in?
“A. While I was in bed.
“Q. That is, he came in after you had gone to bed?
“A. Yes, sir.
“Q. Did you see him?
“A. Yes, sir; I did.
“Q. Now, after you went to bed, tell us, if anything happened?
“A. Why I went to bed with Grace.
“Q. And that was after John got in?
“A. No, before John got in.
‘•<p. What became of Grace then?
“A. Grace stayed with me in bed.
“Q. All night?
“A. Yes, sir.
“Q. Did John come in there?
“A. He came in the room.
“Q. When.
“A. Why, I should judge, about an hour or an hour and a half after-wards. The door was open.
“Q. Was there any fracas or row?
“A. Well, he didn’t say anything, but he didn’t like it; went downstairs, I guess; w.ent out; I don’t know.”

He then says he was never intimate writh the complainant on any other occasion. This testimony is plainly false.

The defendant says that he went to bed with the complainant, and when he woke up in the morning he looked around, the complainant was missing, and he found her in the adjoining room with Wallace. Wallace testifies that when he went there that night the defendant was not there, that he went to bed with the complainant and after he had been one or two hours in bed with her the defendant came in, and, seeing the situation, turned on bis heel and walked out. It is impossible to believe that Wallace and the defendant would differ on such an important point, for if Wallace’s story be taken as true, then the defendant did not retire with the complainant that night, whereas, if the defendant’s story is taken to be true, Wallace must have come into the house long after the parties had retired, which produces an irreconcilable conflict between them. The story is not only false, but unnatural. Here the defendant was engaged to tliis young woman, yet, according to his testimony, ho walked into the room and saw her in bed with another man, and was not moved to anger, and further, when it is considered that, with knowledge of this fact, he says he persistently asked her to marry him for eight years afterwards, it simply brands his story and the story of Wallace as a pure fabrication, invented to destroy -her character. The stories of Wallace and the defendant are so unnatural and absurd that their mere statements •of the occurrence without comment carries with them ample proof of their falsity. This story is absolutely denied by the complainant.

Another attempt was made to show that she was of immoral tendency bjr the witness.Michael Siler, who was the day bartender at the defendant’s saloon, and who says that upon one occasion he came in about twenty minutes past six in the morning, and he was asked in the back room, and he went there. He then testified as follows:

“Q. Who asked you in the back room?
“A. A man that was sitting with Mrs. Bey in the back room.
“Q. Who was the man?
“A. I can’t remember who the man was.”

• He testified that they were drinking, and they were sitting in -chairs at a table, each in a separate chair. He further testifies:

“Q. Did she say anything to you on that occasion?
“A. She asked me to come in; that she wanted to introduce me to her old sweetheart.”

He says he cannot remember anything else. He also testified that her chair was a foot or two from the man’s, and .that she went upstairs about seven o’clock in the morning. The complainant was asked about this on her cross-examination and she denies that she said to Michael Siler, “Let me introduce you to my sweetheart.” The above matter was opened up by the cross-examination of the complainant by defendant’s counsel, and she said the man referred to by Michael was a man named Burns whom she met after she came out of the convent; that he came into the saloon with a lady who stayed with Mr. Burns until about six in the morning; that she cashed a check for Mr. Burns; that she remained there until about seven o’clock in the morning waiting for the cook to come in because she had orders to give her. She says that Mr. Bey was not upstairs asleep. It seems that lie had been out, and she sa3rs he did not return unless lie went up tlie front AAray. She says that when she went up at seven in the morning she found Mr. Bey upstairs, but that she had gone upstairs two or three times before.

Thomas Lynn said that about ten days before he testified he had a conversation Avith the complainant, and about this conversation, testified as follows:

“Q. What did she say?
“A. Why, nothing in particular. We had a general conversation, and she said she did not care to get anything excepting satisfaction for the time she had been AA'ith him.”

She denies this.

Another Avitness awis J. Broadhead Woolsey. He testified to the occupancy of the Quitman street apartments by the complainant, but is vague and indefinite in his story. He testified as follows:

“Q. Do you remember ever renting any apartment to this lady here, the complainant?
“A. Well, I am not very positive about that, but I presume I must have rented it to some one there; I don’t exactly remember this lady at all.
“<?. Do you remember seeing this complainant Avho sits here?
“¿L. I think so.
“<?. Did she introduce anybody to you at any time?
“A. Well, X don’t say positively that she introduced anybody, but there Avas a party living there that I supposed to be Mr. Bey.
“Q. Was it John Bey here, who was just on the witness stand?
“A. No, it is not that man; I never met him.”

The testimony of the defendant, which is as follows, may explain who this man was:

“Q. Were there lodgers or boarders in this place up there in Court street?
“A. Why, my friend Tommy Ijynn avus there; I brought him up there. “(?. Did he pay his board?
“A. I believe ho did; I don’t know.
"Q. Did he pay you the money?
"A. Not me; no, sir.
“Q. Was there a boarder in Quitman street?
".t. Tes, sir; Tommy X^yun might have been there for a Aveek or so.”

Thomas Lynn, above referred to, was sworn as a witness on the part of the defendant, and on cross-examination testified as follows:

“Q. How did he introduce you?
“A. Well, I will tell you, there was no introduction in fact; I was' incapacitated financially, and he said, ‘Xou can come and sleep with me;’ I said, ‘All right,’ and I went up that night and I did not see her that night, and in the morning I heard him calling her ‘Grace’ and I called her ‘Grace.’
“Q. He told you you could come up and sleep at his house?
“A. Well, he said I could come up there and sleep; yes.”

The complainant also testified that while at Quitman street Johnny Hillocks boarded with her, but says that Johnny was a boy; that she took him in her house and fed and clothed him and when he got a position he worked for two or three weeks and left one night. The money that supported this boy was her husband’s money.

Louis Frances, a witness for the defendant, merely testified that he.took a verbal message from the complainant to Frances Hamill at the Hotel Navarre.

Andrew Schreiber, who was employed as a room keeper or in some other capacity in an assignation house at 360 Halsey street, Newark, testified that he was employed in what he called a ‘booming house” kept by a woman named Lily Cohen; that he worked for her about sixteen years, eight years in Halsey street, and eight years in Mulberry street. He says that he never kept any records; that in the year prior to June, 1914, for a period of about six months, the complainant came to the place, generally about Tuesdays and Thursdays of every week, may be one week on Tuesday and the next week on Thursday. He said that it was more than twice that she came, but he could not tell that it was more than ten times; that she always came with the same mam He then testified as follows:

“Q. What did they do there; what happened there?
“A. Now, I don’t know any more than that they went into a room.
“Q. Did you have charge oí those rooms?
“A. I collected the money.”

And he says he collected the money from the man. On cross-examination he admitted that he tended bar for Peter Bey one night. He says that he came to testify voluntarily, without a subpcena, at the request of Peter Bey and a friend of his who came with him, a Mr. Goldsmith; and that he worked for Goldsmith. He says that probably eight or ten couples came to the house in one night. On recross-examination he says the nights might have been Monday, they might have been Saturday, but not Sunday, because they did not keep open on Sunday. ' He was then asked:

“Q. Who was the man?
"A. I didn’t know him.
“Q. Don’t you know his name?
‘A. No, sir.
“Q. Would you recognize him if you saw him in this room?
"A. No.
“Q. Still, you can recognize this girl? Well, how is it that you say you can recognize the girl and cannot recognize the man?
‘A. Why, I don’t see the man in this place.
“Q. Well, if he was here could you recognize him?
“A. Well, if he was here I could; yes, sir.”

He then said the man had light hair and was about five feet four or five feert five tall, and was about thirty-five or thirty-eight years of age. He did not notice that, he always came with the same woman. Later on he said he did not come in with any other woman.

This witness appeared in court strongly under the influence of liquor, and his appearance and manner of testifying outside of the contradictory stories he told, render his testimony absolutely unworthy -of belief. I have not the slightest faith in anything he testified to.

Ray Winters testifies that she had a conversation with the complainant about a year and a half before she testified, which would bring the date to about the first of January-, 1912. She1 testified as follows:

“Q. What did she say?
“A. Well, she said Johnny had asked her to marry him and she was sorry she had not, and she might have avoided all the trouble.”

This witness had been married three times. Her real name is Lindrum; she gave her name on being sworn as Winters. She was examined as follows:

“Q. Now, you came to Mrs. Bey and tried to get her to give you employment, didn’t you?
“A. Yes, I did.
“Q. And she would not give you employment, would she? •
“A. She said she would ask Johnny.
“Q. And you knew that she told Johnny that she would not have you there because you were mixed up in a case where a man was murdered?
“A. I was cook there at that time.”

When asked to state the time that the conversation, in which the complainant said that she was sorry that she did not marry Johnny, took place, she testified as follows:

“Q. Well, fix it as near as possible.
“A. Because she would come to my house at different times and tell me that her and Johnny had had words again, and I don’t know just when it was.”

She fixed the time as around spring or summer. These conversations about her and Johnny, as she puts it, were had about 1911. She said in 1911 she used to “come over to my house and say her and Johnny had had trouble again, and she would feel bad about it.” ■

“Q. Now, was this before Johnny left her?
“A. Yes.
"Q. She told you before Johnny left her, that Johnny had asked her to marry him?
“A. She said they might have avoided all the trouble.
“Q. Well, was there any trouble at that time?
“A. Why, yes, her and Johnny was fighting at that time.
“Q. Well, they were just quarreling?
“A. Yes, sir.
“Q. You heard Johnny testify here that he left her because she would not marry him, didn’t you, and she was telling you that she was sorry she had not married him?
“A. Yes, she did.
f‘Q. And this was before Johnny left?
“A. Yes.”

I place little eredeuce in the story of this witness. She says they were quarreling, and the complainant used to come to her house in 1911 and tell her of her troubles, and. it was during this period that she said that Johnny had asked her to many him, and she was sorry she had not married him. This is hardly in accord with the defendant’s story, that, just before leaving her, he asked her to marry him- and she would not do-it, and it was for 'that reason that he left.

The complainant, in her rebuttal evidence, denied that she had this conversation with Mrs. Bay Winters or Lindrum, on her direct case. On cross-examination, her attention being-called to whát Mrs. Winters subsequently testified to, she denied the story as fully as Mrs. Winters testified to it; and on redirect examination, she testified as follows:

"Q. Now, Mrs. Bey, in your cross-examination you testified you knew 5i Mrs. Winters; who was Mrs. Winters?
“A. Why, she was a woman that came in and sat in the back room of our saloon nights. My husband would not allow me to talk to her. He said she was in some murder case, and she was pleading with me to put her to work.
“Q. Did you give her a job?
■‘A. No.
“Q. How did she feel about it when you would not give lief 'a job?
“A. She didn’t like it very much, and after my husband- left the place his father came in and claimed it, and put this woman to work.
‘‘Q. And you had trouble with her while she was working there?
“A. Yes, sir; plenty of trouble with her.”

Outside of Mr. Woolsey and the father of the defendant, it appears as if the defendant endeavored to make his defence by calling witnesses from the lowest grades of society. 1 assume that he might have called, if he desired, his Aunt Minn, his cousin Eula, his uncles and other relatives, to support him, but he failed to do so.

The testimony of Peter Bey, the father, is unbelievable. Mis position is rather desperate. After knowing that his son had lived with the complainant for a period of about eight years, and knowing that she was vigorously asserting that she was his wife, that she had done that which prevented his son from securing a license for his marriage in the city of Newark, he took his son to the city of New York, procured a license, and had him married to his sister-in-law. His utter recklesness and lack of moral sense lead to the conclusion that, under the circumstances of this case, he would testify to anything necessary to accomplish his purpose.

There was also an effort made throughout the entire case, on cross-examination, by innuendo to prove that the complainant, as well as her sister, were immoral, and, owing to the character of the case, the defendant’s counsel was permitted to go to the extreme in such cross-examination, hut nothing that was elicited rose to the dignity of proof. On the direct examination of the defendant his counsel examined him as to her statements to him of her relations with other men, and says she admitted to him that she was friendly with two other men, whom she named; but there was nothing in this friendship which indicated that she admitted to him that there were any sexual relations, nor that the friendship was any other than the normal friendship which might exist between parties generaUy. The complainant swears positively that she never had sexual relations with any other man than the defendant, and, considering that during the eight years that they lived together, apparently with the normal happiness of husband and wife, I cannot discover anything in the ease which indicates that her story is not true.

The question to be determined on the foregoing facts is— Did the complainant and defendant, by virtue of an agreement, entered into on the 22d day of June, 1904-, become husband and wife ?

No claim is made that any such agreement was made thereafter. The complainant, therefore, must stand or fall upon this agreement. Collins v. Voorhees, 47 N. J. Eq. 565; Pearson v. Howey, 11 N. J. Law 12; Blackburn v. Crawford’s Lessec, 3 Wall. 175.

The subsequent cohabitation, with matrimonial habit and repute, is nothing more than testimony in proof of the marriage. Collins v. Voorhees, supra.

The validity of the marriage here alleged depends upon the sufficiency of the proof that the agreement was entered into per verba de prmsenti. And in construing the contract regard must be had to the intent of the parties, the time elapsed since the assumption of the matrimonial relation, during which the precise words used may have passed from recollection, as well as the manner in which the parties lived together during the period of eight years.

The testimony of the complainant strongly indicates that the agreement constituted a contract of marriage per verla de prcesenti. The parties were engaged, after which there was illicit intercourse, at least once, and, in the extreme, not more than five times. Whatever the result of this intercourse was the complainant did not explain, but it is fair to assume that she feared the consequences of her wrongful act, for, on cross-examination, she said, “Something had to be done,” she then waived all of her religious scruples and consented to live with him under a present agreement, so understood by both,- that from thence forward they should be husband and wife; they then repaired to Frances, he saying to the complainant, “Come, we will tell Frances you are my wife and we are married,” and he then and there told Frances that they had been married and had come to live there. True, the defendant did not say to the complainant, “I do now take you to be my wife,” and she, in reply, say “I do now take you to be my husband.”

This brings up. the question, can the court,-in construing the agreement, look to the intent of the parties? That the intent may be inquired into, where the marriage is contracted in jest, was determined in the case of McClurg v. Terry, 21 N. J. Eq. 225, where the marriage wras declared to be null. In Chamberlain v. Chamberlain, 68 N. J. Eq. 736, 738, on an appeal from a decree advised by Vice-Chancellor Stevenson, 68 N. J. Eq. 414, where it appeared that the parties were formally married, innocent of an impediment to marriage by the wife, that afterward a divorce was obtained leaving the wife free to marry, thereupon the defendant, in the presence of witnesses, assured the complainant that she was his legal wife and no further ceremony was necessary and thereby complainant, in reliance upon such representations, cohabited with him for twenty years, the court of errors said: “This evidence was a manifestation of an intent to live together as husband and wife, and with the intention and the actually so living, an actual marriage is established.”

In Swinb. Sp. (Ed. 1686) he says:

“Albeit that the words of the contract, neither of their own natural signification, neither yet by common use and acceptation conclude matrimony, yet whereas the parties do thereby intend to contract matrimony they are inseparably man and wife, not only before God but also before man, in case their meaning may lawfully appear.”

This doctrine is cited with approval in Schoul. Dom. Rel. (5th ed.) § £7; 1 Bish. Mar. & D. (Ed. of 1891) § 320; Dickinson v. Brown, 49 Miss. 357, 370; Fryer v. Fryer, Rich. Eq. Cases (S. C.) 85.

In Van Tuyl v. Van Tuyl, 57 Barb. 235, the court said: “If he understood it as a proposal of marriage, and it was so understood hy her, and she accepted the proposal, it was a valid contract of marriage.' The law requires an actual meeting of the minds of the parties upon that question, namely, that they shall thenceforth, from the time of the making of the agreement, be husband and wife.” In Starr v. Peck, 1 Hill 270, the court said: “Ho peculiar form of words is necessary to such contract.”

In Regina v. Millis, 10 Cl. & Fen. 534, 8 Eng. Reprint 844, 982, Lord Campbell said: “To constitute such a marriage (per verba de prcesenti cum copula) there must first be mutual promises solemnly and sincerely entered into. And then there must he a copula while these promises remain unreleased and in force. How, the words indicating an intention to many, used, in the course of soliciting chastity, not understood to be serious, however culpable they may be, cannot be construed into a binding contract of marriage; and regard must be had to the circumstances under which the copula takes place. If, however, a woman in surrendering her person, is conscious that she is committing an act of fornication instead of consummating her marriage, the copula cannot be connected with any previous promise that has been made, and the marriage is not thereby constituted. In examining all contracts you must look at the intention of the contracting parties, and there can be no binding contract without the parties intending to enter into it.”

In Peck v. Peck, 12 R. I. 485, 34 A. M. Rep. (Ex. Anno.) 702, Chief-Justice Durfee said: “We are of opinion that a mere executory agreement to marry does not become consummated by copulation, unless the parties so intend. Though cohabitation following an engagement is evidence of such consent, it is not conclusive but only prima facie evidence of it.”

There seems to be an irreconcilable conflict among text-book writers and courts as to what is necessary to constitute marriage' per verba de futuro cum copula; some going so far as to hold that mere copula following a promise of marriage in future constitutes marriage; but these cases seem to follow the canon law as laid down in Wigmore’s Case, 2 Salk. 438, 91 Eng. Reprint 380, while others hold that cohabitation following the promise is evidence from which the inference may be drawn that the cohabitation is intended in fulfillment of marriage, without showing that the cohabitation is assumed with the understanding that it is in fulfillment of the promise and is .to constitute marriage.

The divergent views of text-book writers and courts on this subject wall be found in the notes of Regina v. Millis, 17 Eng. Ruling Cases 165, and Cheney v. Arnold, (15 N. Y. 345) 69 Am. Dec. (Ex. Anno.) 609 at page 615.

The eases of Regina v. Millis and Peck v. Peck, supra, are referred to solely in support of the doctrine that the intent of the parties may be inquired into to determine the question of marriage or no marriage, and not with the view of passing on the propriety of the doctrine enunciated on the subject of the contract of marriage per verba de futuro cum'copula.

I therefore conclude that if the contract of present marriage is ambiguous the intent of the parties may be examined into; and if, by their subsequent cohabitation, it is plainly apparent that they meant matrimony, they are husband and wife.

The case in this respect seems not to differ from that of ordinary contracts, and the law wall, in the case of an ambiguous contract, give it that interpretation which the parties, by their acts and conduct, place upon it. Chicago v. Sheldon, 9 Wall. 50, 56.

In the present case it is unnecessary to deal "with these conflicting views, because here, on the 22d of June, 1904, the parties, then being engaged to be married, by words which appear rather strongly in preesenti, then and there, either by words in the present tense took each other to be husband and -wife, or plainly intended that the agreement then and there entered into constituted marriage, and their cohabitation since that time is very strong evidence of such agreement and intent.

' 'In addition to the proof of the intent as shown by their conduct, this -intent is further strengthened by the presumption that where a man and woman constantly live together ostensibly as man and wife, demeaning themselves toward each other as sucli and are received into society and treated by their friends and relations as having and being entitled to that status, the law will, in favor of morality and decency, presume that they have been legally married. Wallace’s Case, 49 N. J. Eq. 530, 534; Costill v. Hill, 55 N. J. Eq. 479, 484; Collins v. Voorhees, 47 N. J. Eq. 555, 559; Keavey v. Barrett, 62 N. J. Eq. 454.

This presumption, however, is rebuttable, and is never indulged in contrary to the fact. Thus, where the cohabitation begins meretricious^, or where there is an impediment to the marriage, known to one and not to the other, the law will not, in the absence of evidence to the contrary, presume that the status of the parties has changed, and the burden in such cases is upon the • person claiming marriage to establish it by proof independent of the presumption arising from cohabitation and repute. Collins v. Voorhees, supra; Vorhees v. Voorhees, 46 N. J. Eq. 411, 414; Badger v. Badger, 88 N. Y. 547; Brinkley v. Brinkley, 50 N. Y. 185, 198; Caujolle v. Ferrie, 23 N. Y. 94; Cunninghams v. Cunninghams, 2 Dow. 482; 1 Bish. M. D. & S. § 964.

That the parties had sexual intercourse before the date of the alleged marriage is conceded. It wras had, however, under circumstances that in no manner indicated a pretence before the world of an existing marriage relation. The parties at the time were engaged and contemplated future matrimony; and on June 22d, 1904, an agreement was entered into after which there was a complete change in their relations before the world. Thereafter their intercourse was connubial in its character and continued unbroken and unquestioned for eight years until the defendant deserted. This change in their mode of living at least, whep coupled with the agreement as testified to, overcomes any presumption that might arise against the validity of the marriage by reason of the meretricious beginning of their relations. In any event, the presumption against the marriage is not very strong, because they did not cohabit meretriciously. 1 Bish. Mar.. D. & S. § 964; Gall v. Gall, 114 N. Y. 110, 117; Badger v. Badger, supra; Caujolle v. Ferrie, supra; Starr v. Peck, 1 Hill 270.

To overcome the presumption which necessarily obtained from the regular living as husband and wife, the defendant! sought to prove that the complainant was so morally depraved that she preferred to hold herself free for carnal commerce with many rather than be the lawful wife of one. To establish this fact the defendant was allowed extreme liberty in cross-examination and offers of proof, but he utterly failed to establish by any evidence worthy of belief that the complainant was other than a devoted wife according to the customs and manners of the society in which the parties moved, the tone of which was not very high.

The purpose of this order of proof was to bring the case within the parallel of Haley v. Goodheart, 58 N. J. Eq. 368, and the defendant argues that he has done so, but the cases are not in any respect alike. In the Haley Case, Lavinia was lewd, and although-but sixteen years of age at the time of the alleged marriage, was at that time regarded by her parents as morally vicious. Throughout the entire period from the date of the alleged marriage to the death of Jerry Haley in 1873 there was no connubial cohabitation — no holding themselves out to the world as husband and wife. During the illness of Jerry, which covered a period of years and terminated in his death, there was no communication between them. When Jerry died she did not attend the funeral, but viewed it from a street corner. There was a child born in 1867 which she said was Jerry’s. After the death of Jerry, although in want, and Jerry died leaving a considerable estate, she made no claim for support, nor did she do anything to establish the legitimacy of her child, but, on the contrary, went to West Earms and became the housekeeper of one Schofield, where she remained several years under the name of Schofield, during which period she had a child by some one other than Schofield. The first claim she put forward was in 1891, when her son was about twenty-four years old, when she went to the house of Mrs. Haley and said her son was Mrs. Haley’s grandson. The first step to vindicate her claim was in 1895, when proceedings were taken in the orphans court. The case is filled with incidents showing that from the year 1866, when she was sixteen years of age, down to at least 1887 she led a libidinous life.

In Clark v. Clark, 52 N. J. Eq. 650, there was no evidence of matrimonial habit and repute. The defendant endeavored to show that the complainant was lewd and that their relations were meretricious and not matrimonial. The defendant, however, when asked by a third person, admitted that complainant was his .wife. Vice-Chancellor Van Eleet believed the complainant and declared for the marriage.

The court has no right to infer that, because a young woman on the solicitation of the man to whom she is engaged, surrenders her chastity, she is unwilling to change her illicit relations to honorable matrimony; on the other hand, the presumptions are all the other way.

On all of the facts in this case I am satisfied that the complainant has conclusively proven that the complainant and defendant became husband and wife on the 33d day of June, 1904. The complainant, therefore, is entitled to an allowance for maintenance and counsel fees.

I will hear counsel at the chancery chambers, Jersey City, on Monday, May 35th, 1914, at ten o’clock in the morning as to the amount of the allowances.


source: Caselaw Access Project

author: Griffin, V. C.

license: Public Domain

text:
    Aimee Greene McComb v. William McComb.
    [Submitted November 18th, 1913.
    Decided March 3d, 1914.]
    Evidence in a suit by a wife against her husband for a divorce on the ground of desertion, held to indicate an acquiescence on her part in their living apart until he could earn enough to support her.

      Mr. Thomas G. Haight, for tlie petitioner.

      Mr. Marshall Van Winkle, for the defendant.
   Griffin, V. C.

The petition in above cause is filed for a divorce on the ground of desertion. The parties, who were acquainted from childhood, were married October 15th, 1907. One child, a son named Galen, now aged about five years, was born of the marriage. At the time of the marriage the defendant was deputy city collector of Jersey City, receiving a salary of $1,500 a year. He was in receipt of no other income, had substantially no property, and relied wholly upon his salary for the maintenance and support of his family. Prior to the marriage the mother of the petitioner (a widow) very properly questioned the defendant as to his ability to support her daughter, and was informed by the defendant of his position and income; he said there was likely to be a change in the Jersey City administration; that he would probably lose his position; but had secured a better one in the health board. The petitioner was also advised of this situation.

After returning from their wedding trip, they occupied a house at Hackensack, the rent of which was $40 a month; the petitioner’s mother, and son, aged about thirteen years, also resided with them and paid board. The defendant paid the first two months’ rent, lost his position on the 1st of January, 1908, did not secure the position in the health board, and after being for some time out of employment, secured a position in the Union Trust Company as a clerk on a salary of first $60 and later $75 a month.

In the course of his employment with the Union Trust Company he became acquainted with a business called the "wet wash business,” and conceived the idea that it was very profitable. He told his wife that he was going to engage in it and here his lack of judgment and discretion is made to appear. He borrowed $600 from the Union Trust Company and invested it in the business, without making a reasonable investigation. His wife advised against this course until he made a proper examination of the business and consulted a lawyer on the subject. This advice he did not heed, with the result that within a very short time the wet wash business became a failure, the money embarked in the enterprise was lost, and he was driven to seek other employment.

His next venture was in a corporation which, with Mr. Mason, they formed for conducting the laundry business, called the M. & M. Laundry. He represented to his mother-in-law that it was a very good business, that ample money could be made in it, and borrowed from her $1,200. Afterwards, in the summer of 1909, and while he knew the business was running down and was virtually a failure, he borrowed from her an additional $1,000, on the representation that they were doing a splendid business, that the money was necessary to enable them to properly handle the same, and that he would repay her in a short time. On these j (¡presentations the money was loaned; at the same time he borrowed $350 from his wife. During his stay in the laundry business he delivered to his wife checks in small amounts, made payable to the order of the M. & M. Laundry, which he, as president of the company, endorsed. She demurred to accepting them, thinking that it was suspicious, and inquired why the money was not put into the account of the company. líe, however, allayed her suspicions. The day after Thanksgiving, 1909, he said he was going away, that the laundry business was doing nicely; that he was going with the knowledge and assent of Mr. Mason; that Mr. Mason was to draw $25 and he $15 a week, and let it accumulate for the purpose of paying for the stock or dividends, that he had a good offer of a position at $40 a week at Belle Vernon, Pennsylvania. This story was absolutely untrue. It is apparent from the testimony that the creditors were pressing the company for payment, that he had taken those moneys which he gave his wife wrongfully, and having secured a position at Belle Vernon (not at $40 a week), suddenly departed, and within a few days afterwards his wife learned of the true situation in a conference with Mr. Mason. When defendant reached Pittsburgh he telegraphed his wife, and wrote her, enclosing all the money he had, $5. His position at Belle Vernon was that of a solicitor of bank accounts, for which he received $10 a week, and a commission on all over and above a certain sum deposited through his solicitation. At Belle Vernon, he says, he averaged $15, $18 and $20 a week, and sent his wife $10, $12 and $15 every week, being all he made excepting about $4 a week which he paid for his board. He next went to Masontown. Prom Masontown he went to Rockingham, Forth Carolina, then came back to New Jersey from Rockingham'. He says that from all these places, down to the time he left .Rockingham and returned to Hackensack, he sent his wife from $10 to $15 a week. He returned to Hackensack in March, 1910. He found that during his absence the dining-room had been closed up and was used for boarders; and he says that his wife said to him during the night, “You can stay here, if you want to, but you can have the room in the attic; that is the best I can do for you;” and he said, “What is the matter with our room?” “Oh,” she said, “Mother sleeps with me.” He did not stay there that night, but left somewhat offended, he does not recall when be returned to Hackensack. He lived in Jersey City for two weeks after his return but did not visit at her home during that time but telephoned that he wanted to see her. They met by appointment on Montgomery street, Jersey City. He did not further communicate with her unless, perhaps, by letter. He says that when he came back from Rockingham, Forth Carolina, this time, in March, his wife met- him, that he looked very shabby; they went to Rogers, Peet & Company and she bought him a suit of clothes so that he might take a managership. He was next employed as manager bj7 the same company, the Burns Company, in the same business of soliciting bank accounts, at a salarj7 of $25 a week; and he says he sent her $20 a week; that this continued so long as he was a manager. He was next sent to Mt. Jackson, Virginia, and from there sent her $20 a week; from there to Henderson, North Carolina, where business was not good; and it appeal’s from the correspondence that his wife was willing, to join him there, but he inquired of the Burns Company for assurances about his staying South as manager (because, he says, he did not want to bring her'down on a fool’s errand), and'they could give no assurances, thereupon ho advised her not to come. While at Henderson his board cost him $7 a week, the balance he sent to his wife. He returned to Hackensack in July, 1910. He says Mrs. McComb did not object to his going away, and she bought him a suit of clothes to go away as manager. She knew his plans. He says it was on this visit in July that his wife told him he could have a room in the attic, but his testimony leaves it in doubt whether it was in March or July he was asked to sleep in the attic, and she bought him the clothing. He next entered the service of the Bankers Corporation, in the same line, at Mt. Vernon, New York, where he remained until September 21st, 1910. During this period of service he made $12, $15, $18 and $20 a week, and sent it to his wife, outside of what he had to pay for board. During the month of August, 1910, while he was so employed, the petitioner’s mother was not at home, and the defendant visited petitioner on week-ends, and they cohabited and were on friendly relations. From August, 1910, down to the date of the filing of the petition, the parties had no sexual relations. After leaving lire Bankers Corporation he was employed by the Aetna Life Insurance Company on Long Island, during the month of September, 1910, receiving $20 a week, and paid it to his wife, excepting what he paid for board, he living with his parents in Jersey City. He next .worked for his brother-in-law, Alfred Lewis, in the dairy products business, until December, 1910, receiving $15 a week, all of which he gave to his wife, his compensation being $15 a week and board. He says lie left his brother-in-law in December, 1910, obtaining employment in Winston-Salem, North Carolina, from the Burns Company as solicitor, and was there until January 18th, 1911, earning $12, $15, $18, $20 and $25 a week, paid liis board, and-sent the balance to his wife. Erom Winston-Salem he went to Eoxborough, North Carolina, for the same concern, in the same line of business;, and earned from $12 to $18 a week, and stayed there until February 10th, 1911, and sent the money that he earned to his wife as before. Leaving there he came back to Jersey City, worked, for his brother-in-law until the latter end of April, 1911, at $15 a week and hoard, and sent all of his wages to his wife. About February, 1912, or shortly prior thereto, he went into business for himself. From that time down to January, 1913, he was in the cigar business and milk business (see Exhibits P SI, $2 and -57). In this last letter, which was written in October, 1912, be says be is in the cigar business and was particularly unfortunate “this summer and did not have any money to send.” He did, however, send some monejr, as appears by the exhibits; and it also appears that he did not visit her from December, 1911, until November, 1912, the visit at this latter time being brought about by a letter to him from his wife saying that she was going to Suifevn, and offering to come down to meet him if he should write. He telegraphed, and she returned from Suffern and met him on the 6th or 7th of November. The conversation at this meeting was like most of the others, simply talking about the future and about his earning possibilities and nothing came of it. About January, 1913, he was in the milk business, and said he was making from $12 to $15 a week, with two or three hundred dollars invested. He sent some money to his wife ■during this month, and said lie ceased sending her money during the baby’s illness, which was the latter end of January, or the early part of February, .1913, because he learned that the baby was ill, and the doctor had ordered that no one be admitted to see him. She had asked the doctor if Mr. McComb could not see the child, and he said “No, under no circumstances.” The defendant then wrote to his wife, saying that, regardless of the ■doctor’s orders, he would see his child; she then wrote back (Exhibit D 1) saying, “The doctor’s orders must be obeyed. You must not annoy 3ne further.” This last letter, it appears, so incensed him that he stopped sending money.

The petition was filed within a month thereafter.

Aside from the foregoing, other facts appear which shed some light on the case. The petitioner says that on a visit to her about Labor Day, 1910, the first thing lie said was,

“I will send you some money; I have consulted my lawyer, and you will never get a divorce from me. I will send you some money from time .to time, and, if necessary, have it registered. He told me that.”

She, in reply, said she did not want a divorce. He denies that he ever spoke to her about a divorce or that he consulted a lawyer until this suit was brought. Owing to his admitted untruthfulness ip dealing with his wife and her mother, and the fact that he did send her a registered letter, which he says was sent so that be could have something to fail back on in case anything happened, which might naturally he taken to mean, if his wife applied for a divorce, I am inclined to the belief that the petitioner is telling the truth. Prior to leaving the laundry business, which was in November of 1909, she learned that her husband owed money to the Glen Island Hotel, which, she said was a notorious resort, and her suspicions were aroused. Taking these suspicions in 1909, and his statement as to how he. would prevent her from obtaining a divorce, made about October, 1910, into consideration, she consulted a lawyer some tiane in July, 1911, and laid the circumstances before him, acting upon whose advice she employed a detective to follow defendant and only discontinued his services because her funds gave out. She kept copies of her letters written to him, as well as his letters to her, after this date, because of her lawyer telling her to be very careful. The married life of the petitioner down to this date having been so unsatisfactory, with such little hope of betterment in sight, I am inclined to believe she then conceived the idea of obtaining a divorce if conditions did not improve. The defendant explains that the bill referred to was contracted on the day of the HudsonEulton celebration, when he went into the hotel with a number of friends hoping to secure all the laundry work of the hotel.

Some of the letters which she offered in evidence she says were shown to her lawyer before they were sent, others were not.' While the defendant was wandering throughout the country in an effort to make money, his wife and child, during the summer, were at Asbury Park, and sometimes, in the spring and fall, at Eoxwood Inn, Suffern, New York. It is very apparent that the defendant was practicing a great deal of self-denial, and endured a great deal in keeping away from the society of his friends in his travels through Pennsylvania, Virginia, North Carolina and New York, seeking to earn money, all of which, ouiside of his hare means of support, he sent her. This rather indicates quite some love and affection for his wife and child. Another fact seems to not only demonstrate this, but also that this love was reciprocal, appears in two letters (Exhibits P88 and P 8If) which passed between the parties in April, 1912, less than a year before this petition was filed, the defendant wrote enclosing a receipt for premim on $1,000 policy in the Prudential, and said:

“I have taken an additional $2,000 (policy), the quarterly payment of which falls due on July 15th, Galen’s birthday. Should anything happen to me, you will collect $3,000, as everything is payable to yon,”

to which she replied, sajdng:

“I sincerely hope that I shall never be the one to profit by it. You know you have many tasks to perform yet, and it is our ambition, or should be, to live until we have done them well.”

While before his marriage, and. for some time afterwards, his conduct towards the petitioner was rather reprehensible, he seemed to be filled with a desire to do his best for his familyi But he says that the constant talk in the house when he tyent to Hackensack was “money, money, money,” which was very annoying. I think perhaps he exaggerates this, yet, under the circumstances, it was but natural that there should have been some talk of money matters that made it rather disagreeable to him, considering the large amounts of money of his mother-in-law and wife he had squandered in such a short time, and' afterwards finding how difficult it was, in open competition, to earn a livelihood. Bui it did not excuse his fáilúre to visit his wife while lie was iu business at North Arlington and living at Jersey City and Nutley for a period beginning with December, 1911, and ending with November, 1912.

The whole aspect oC the ease is peculiar. The petitioner contends that the desertion commenced in October, 1910; that at that time he had a deserting mind, that this is evidenced by the fact that he told her, two weeks after Labor Day of 1910, that she would not get a divorce because he had consulted a lawyer, and would send her money which would defeat it. If his intent at that time was to desert his wife and never afterwards resume marital relation, the mere fact that he sent her money would not of itself prevent a decree being entered against him; the mere sending of money to a wife does not constitute the full measure of duty which a husband owes to his wife. His desertion could be willful, and yet ho might support her. The strange part of the case, however, is that while he was with the laundry company he actually took about $300 of the company’s funds and gave it to his wife for her support. It is unlikely that he would do this if he was not anxious to care for her. On these various trips he sent her virtually all he earned, less a sufficient sum to pay his hoard. He did not even have money to buy clothing, and was reduced to sueli a degree that when he came to- New York from Roxborough to become a manager, his wife took him to Rogers, Peet & Company and bought him clothing. If he was carrying out a preconceived design of sending her money for the purpose of defeating a divorce, he certainly punished himself severely to accomplish this end. He might readily have sent less and fully subserved the purpose intended. I can hardly believe this. I think he endeavored to do the best he could, but, by reason of some mental characteristics, which are evidenced a great deal in his letters, he seemed incapable of acquiring a position to properly care for his wife and child; some of these characteristics appear plainly in his letters; they are filled with the most exaggerated statements as to his earning capacity and the money he was making. They were filled with such, expressions as that he was “making a barrel of money,” and he explained that the reason why he wrote such things to his wife was that he desired to buoy her up and make her cheerful. Some of his letters, however, are rather harsh. About August, 1911, he wrote the letter (Exhibit P 21), in which he told her, after saying that he loved and thought of her all the time, and wanted her to be with him, and that he wished her to come and live with him, he says, “I will provide the very best I can for you and my baby. Your answer must be ‘yes’ or ‘no/ as my future actions will depend on your reply.'"’ This letter was registered, and is apparently the only registered letter he ever sent her: To this letter she replied on August 8th, 1911. (Prior to which time, Juty, 1911, she had consulted a lawyer.)

In her reply she pointedly asked him why he registered the letter when it contained no money and he had never sent her a registered letter before, even letters that contained money, his explanations were rather lame, thus provoking comment on the fact in her subsequent letters. It is apparent that the registry of the letter taken in connection with his previous statement, as to the manner in which he would prevent her from obtaining a divorce, conveyed to her the idea that the letter was registered with the same end in view.

On the stand he testified that lie determined to write the letter to have something to fall back upon in case anything happened.

"While it has not been testified to, I am inclined to the belief that the defendant wrote this letter for use in case his wife should sue for divorce, that it must have been in his mind that his absence might amount to a desertion. He says, however, he did not consult a lawyer about the matter and was not advised until this suit was brought. It appeared that the defendant wrote his wife that he would secure an apartment, and, at another time, that he would secure quarters in a boarding-house. Her letters indicate an acquiescence in these plans, which he then abandoned, saying, he could get neither Ihe apartment nor the boarding-house. He says the reason why he could not get them was that when he went to Hackensack to see his wife, her talk was different from her letters. She also says that his talk was different from his letters, and so the parties did not" resume marital relations. I am satisfied that if the defendant was earning sufficient to enable them to live in substantially the style adopted by tliem at the time of their marriage, or in somewhat inferior style if there was any certainty as to its continuance, this proceeding would never have been brought.

She had lived hoping for the arrival of the day when he would be capable of properly earing for his family, and this continued ’ down to the date of the illness of their son, Galen, in January or February, 19.13, during which lie, becoming incensed at not being permitted, against the doctor’s orders, to see his child, stopped sending her further moneys. When it is considered that this man for a whole year lived within a few miles of his child and did not make an effort to sec him, it is plain that his conduct on this occasion was absolutely unjustifiable, and was properly so looked upon by his wife. This, to my mind, completely weaned her love for him, and she then finally concluded to put into effect what, for a long time, was inchoate in her mind, restrained only by her hope and lovo, to seek a divorce. But I am unable to determine at what particular period it can be said that a desertion commenced. She consented to his leaving on these various trips. She bought clothes for him to go as manager on one of the trips. Her letters, after his undertaking this latter trip, were substantially of the same tenor as before. There is nothing in the letters written by or to him during two years prior to the filing of the petition, or even down to the date of the filing of the petition, nor is there anything in the testimony, as I read it, which could, in any manner, be treated as information to the defendant that the wife demanded a resumption of marital relations. These letters and the evidence indicate an acquiescence in their living apart until he could earn enough to support her. Provost v. Provost, 71 N. J. Eq. 204; affirmed, 73 N. J. Eq. 418; Foote v. Foote, 71 N. J. Eq. 273; McAllister v. McAllister, 71 N. J. Eq. 13.

I am constrained to decree that the bill be dismissed.


author: Howell, Vice-Ordinary.

text:
    In the matter of the probate of a paper-writing purporting to be the last will of Elizabeth W. Tunison, deceased.
    [Submitted February 16th, 1914.
    Decided May 18th, 1914.]
    1. The “undue influence” which vitiates a will is that which destroys free agency and constrains testator to do what is against his will and what he would not have done if left to himself, and the degree of the influence is immaterial, provided it destroys free agency.
    2. The undue influence which vitiates a will must be an -influence whereby someone is materially injured, and where testator divided his property equally among his children, or approximately so, there can be no complaint of undue influence.

      3. In proceedings for the probate of a will, contested on the ground of undue influence, evidence held not to show such influence as deprived testatrix of her free agency, ,in view of the fact that all her children were substantially treated alike and the reduction made by the will in the share of a child was based on reason, operating on the mind of testatrix.
    4. A gift hy testatrix to a child about three months before the execution of her will, while she was in possession of all her faculties, and agreed to by two of her other four children as fair, could be proved in proceedings by the child to probate the will, contested on the ground of undue influence.
    5. Where a will was contested on the ground of undue influence exerted by a child over testatrix, evidence that about a year and a half after the execution of the will she conveyed to the child real estate and personal property had but little weight on the issue.
    6. The court, in proceedings for the probate of a will, may not consider the validity of gifts inter vivos made by testatrix to a child.
    7. Mere opportunity to exert undue influence in procuring a will, coupled with an intention to do so, is not sufficient to show undue influence, where testatrix is of ordinary and usual mental capacity, though her mental capacity has been weakened by old age or disease, and there must be some positive evidence that someone actively exerted influence of an undue character, having some effect on the mind of testatrix.
    On appeal from the orphans court of Essex county.

      Mr. Henry O. Hmú and Mr. Alfred F. Skinner, for the appellant.

      Mr. Oortlandi Parker, Jr., and Mr. R. Wayne Parker, for the respondents.
   Howell, Vice-Ordinary.

Mrs. Elizabeth W. Tunison died in February, 1911, leaving her surviving four children — -Benjamin C. Tunison, William E. Tunison, Clarence W. Tunison and Ella T. Sargent. Benjamin O. Tunison was and is a non-resident; the other three reside in New Jersey.

On March 1st, 1911, Clarence W. Tunison produced his mother’s will before the surrogate of the county of Essex; on that day the same was admitted to probate and letters testamentary were issued to the said Clarence W. Tunison as one of the executors appointed by the will. On March 3d following, William E. Tunison, the other executor, applied for letters testamentary, and the same were on that day issued to him.

In July, 1911, Benjamin C. Tunison appealed from the order of the surrogate admitting the will to probate, and the case came on for hearing de novo before the orphans court in January, 1912.

The orphans court reversed the action of the surrogate by an order entered April 25th, 1913. By this order the said will was rejected and a counsel fee of $1,500 was allowed to the proctors for the appellants, and a like fee of $1,200 to the counsel of the respondents, besides the costs of suit of both parties, including the stenographic copies of the evidence. The proponent then appealed to this court from that part of the decree which rejected the will, and Benjamin C. Tunison appealed from that part of the decree which allowed a counsel fee and costs to the proponent, and also from such part of the decree as directs that the costs and counsel fees of both parties, including stenographic copies of evidence, should be paid from the estate, instead of being paid by the proponent personally.

The due execution of the will is not questioned. The only attack made upon it is upon the ground that the testatrix was unduly influenced to make the will by her son Clarence W. Tunison, with whom she lived, and who, at the time the will was made, was almost her sole companion, caretaker and adviser. The property devised by her will came to her under the will of her husband, who was a clergyman affiliated with the Methodist Episcopal Church. His will was made November 26th, 1887. By it he devised and bequeathed to his wife, Elizabeth W. Tunison, all his real and personal property, to be held, used and disposed of by her according to her will and pleasure, but that if at her death there was any property that had not been used or disposed of by her either by will or otherwise he directed that the same should be divided equally among his five children, being the four above mentioned, and one daughter, Alice B., who has since died, but with a single exception that Benjamin C. should receive $2,300 less than either of the other children on account of advancements theretofore made to him, and also directing that the Elorida farm should be transferred to Benjamin at the price, and value of $1,800. The widow (the present testatrix) and the sons William and Clarence were the executors. The two sons alone qualified.

■■ The will in question in this suit was executed by Mrs. Tunison on the 36th day of June, 1908. By its terms she provided for her son Benjamin C. and his family as follows: (1) She gave to Benjamin C. the income on $2,500 for the term of his natural life, and (2) in the event of his death the executors should pay from the principal thereof the sum of $500 to Nellie, liis wife, and (3) $500 to her grandson George, sou of Benjamin C., with remainder over to her other three children in case the said Nellie or George should depart this life before said Benjamin. She likewise provided (4) that her granddaughter Beatrice, daughter of Benjamin, should have the income on $1,250 until she arrived at the age of twenty-one years, at which time the principal should be paid to her, with the remainder over to the other three children, in case the said Beatrice should depart this life before arriving at the age of twenty-one years. She likewise provided (5) that Alice Tunison, daughter of Benjamin C., should have the income bn $1,250 until she should attain the age of thirty years, but that in ease she accepted the Eoman Catholic faith or became a member of the Eoman Catholic Church she should forfeit the said sum of $1,250 and the same should go to her three remaining children; all the rest, residue and remainder of her estate should go to her three remaining children — William E., Clarence W. and Ella T.; she appointed William E. and Clarence W. to be the executors thereof.

It is claimed on the part of Benjamin C. Tunison that his mother was induced by the undue influence of his brother Clarence to make a meagre and limited provision for him. and members of his family in order that he (Clarence) might benefit thereby. Mrs. Tunison, at the time of the execution of the will, was about eighty-three years of age. Eor some time prior thereto she had been an invalid, confined to her house, and part of. the time to her bed; her constant companion and nurse was her son Clarence, who looked after her wants, assisted her in her illness and in her business affairs, and to a large extent might be called her confidential companion and adviser, and he seemed at times to have resented the desire of the other members of her family to see her, and occasionally made it somewhat awkward for them- to do so. Under these circumstances, it may well be said that it was his duty to refrain from attempting to'influence his mother in any way in the disposition of her property. William E. Tunison lived in the same town in which Clarence and his mother lived; he visited his mother occasionally during her last illness, and was not on intimate terms with his brother Clarence; there was especially bad feeling between William’s wife and Clarence. Mrs. Sargent lived a considerable distance from the other members of the family, and did not see them so frequenth^ as did William. So far as I can ascertain, from the testimon}!-, Mrs. Tunison had no animosities against any member of her family, nor does it appear that she ever expressed herself as more favorable to one than to another.

In this ease the charge of undue influence on the part of Clarence arises from the fact that he lived with her and was her constant companion, and that the circumstances show that he was in such a situation as to her, and held such a confidential relation toward her, that the burden of proof is shifted to him, to make clear to the court that Iris actions were free from any attempt to influence her against any of her children. Vice-Chancellor Van Fleet has furnished us with a definition of undue influence which seems to be very complete. He says, in Earle v. Norfolk Company, 9 Stew. 188: “All that can be safely said in the way of formulating a definition of what the law calls undue influence is to say that whatever destroys free agency and constrains a person whose act is brought in judgment to do what is against his will and what he would not have done if left to himself, is undue influence, whether the control he exercised by physical force, threats, importunity or any other species of mental or physical coercion. The extent or degree of the influence is quite immaterial, for the test is, was the influence, whether slight or powerful, sufficient to destroy free agency and render the act brought in judgment rather the result of the determination of t’he mind of another than the expression of the mind of the actor.”

The term1 "undue influence” has no force or efficacy unless by means of such influence somebody is materially injured. It could hardly be said that a man was unduly influenced to make a will by which he divided his property equally among his children for the reason that in such a case it could not be said that anyone was injured. If, therefore, we find in this case what is approximately an equal distribution under the will, then there can be no complaint of undue influence, or if this equal, or approximately equal division shall be varied in the case of one or more of the children, and a good reason for such variance appears, then and in such ease it could hardly be said that the element of undue influence had any operation. It may he borne in mind that the opponent, Benjamin C., had been advanced a considerable sum of money in the lifetime of his father. By the will of the father he was to have been charged with the sum of $2,-300, with interest, from November 26th, 1887. In 1906 the present testatrix, Mrs. Tunison, made an earlier will which is in evidence, in and by which she charged her son Benjamin with $8,800, which was approximately the amount charged against him by his father’s will, plus interest to the date of his mother’s will. This amount calculated to the date of the mother’s last 'will, with the interest, would amount, roughly, to $10,000, and inasmuch as it appears that both the father and the mother by the wills just mentioned intended to charge up this amount against him, it might not appear inequitable and unjust if the testatrix had the situation and the figures in mind at the time her second and last will was executed. 1 think we shall have to take it for a fact in the ease that she intended to charge up. either directly or indirectly, this amount which had been so advanced by her husband to her son, with interest. This sum, with interest added to the amounts appropriated to the benefit of Benjamin and his family by her last will, would approximate $15,-000; and if it shall appear that that amount is approximately one-fourth of the value of the estate, then, in my opinion, the attack upon the will on the ground of undue influence must fail.

The evidence shows that at the time of the execution of the will in question the value of the personal estate of the testatrix was about $1-0,000. This was subsequently increased by extra dividends on some of the investments, so that at her death it was much larger. The real estate owned by the testatrix at the time of her death seems to have been worth not far from $13,000. If these figures are correct, then the amount of money appropriated to Benjamin and his family at the lime of the execution of the will was not far from a one-fourth share of the whole estate. It is true that the bequests are not all absolute, but, with one exception, are either for life or upon condition, but it is quite apparent that a reason existed at that time for making a distinction between Benjamin and his family on the one hand and the other three children of the testatrix on the other hand. Benjamin was an nnthrift: he is spoken of by some of the witnesses as a wanderer. The evidence hints at, and partly discloses, a situation with regard to him which is hardly in accord with the moralities which might naturally be insisted upon in the family of a clergyman of a Christian denomination. He had been divorced from bis first wife; was separated from his second wife, had left bis home, and for a time had taken up his residence in Elorida,'and subsequently in western Pennsjdvania. He was not in immediate touch with members of his family, and seldom communicated with them by letter or otherwise. His daughter was being educated in a Eoman Catholic school and was evidently suspected of a desire to join the Eoman Catholic Communion, which I think the evidence shows she subsequently did. These circumstances point out a reason why the testatrix- made for Benjamin and his family the somewhat limited provision ivhieh she did make, a provision which, it seems to me under all the circumstances of the case, was a natural and almost necessary outcome of the circumstances and of the relationship which Benjamin bore to the rest of ihe family. Under these circumstances can anyone say that this will was produced by undue influence of Clarence? It seems to be satisfactory to the other members of the famil3r. William approved of it by taking letters testamentary under it; Mrs. Sargent especially approved of it on the witness-stand; they are equally interested with Clarence in the division of the estate. If he had intended to influence his mother, and had the power to do so, as is claimed by the opponent of the will, there seems to be no reason why he should not have procured a larger interest for himself and also have deprived Willianr of any share in the administration of the estate.

My conclusion on this branch of the evidence, therefore, is that there is no proof of any undue influence, or of any sinister influence cogent enough to have deprived the testatrix of her free agency in the disposition of her property by her will.

It appears, however, by the testimony that the testatrix did favor Clarence by the transfer to him of considerable real and personal property by documents which were not testamentary in their character. On March 10th, 1908, about three months before the will was executed, she transferred to him two mortgages of the aggregate amount of $2,500, and on December 15th, 1909, a year and a half after the execution of the will, she conveyed to him the real estate which I have said was valued at $13,000, and about six weeks later she transferred to him by bill of sale all the contents of her house. And it likewise appears in the case, or on the argument was mentioned by counsel, that proceedings are pending in another court to set aside these transactions and bring this property back into the estate for distribution. It was urged with groat vigor that these gifts were evidence of the undue influence which it is alleged Clarence bad over his mother. I do not think so. It sufficiently appears that the testatrix was in possession of all her faculties at tlie time the mortgages were assigned, and that the assignment was approved of by both Mrs. Sargent and William, who agreed that it was only fair that Clarence should be compensated for the care and attention which he had bestowed upon his invalid mother. The other two transactions occurred so long after the making of the will as to be of little service in adjudicating upon her mental condition at the time of The execution of the will. It is quite possible that a person might be competent to execute a. will on a given day and a year and a half later bo absolutely incompetent.

I do not mean to be understood as either approving or disapproving these transactions. The question of their validity cannot be considered in this cause. The action of a court of equity in dealing with the question of the validity of gifts inter vivos is very different from that of a court of probate in considering the validity of a testamentary disposition of the same property. The two proceedings are presented in different ways upon different evidence, and according to different principles and rules of law. Sparks Case, 63 N. J. Eq. 242; Parfitt v. Lawless, 2 L. R. P. 462; 41 L. J. P. 68.

Beturning now to the main controversy, I am forced to the conclusion that -while Clarence was the confidential agent and adviser of his mother, not enough appears in the case to cast upon him the burden of proving that there was no undue influence exerted by him. I understand the cases to hold that mere opportunity to exert undue influence, coupled with an intention to do so, is not sufficient where it appears that the testatrix is of ordinary and usual mental capacity, and this even though her mental powers may be weakened by old age or by disease. There must be some positive evidence that somebody has actively exerted influence of an undue character and extent which has had some effect upon the mind of the testatrix. In Dumont v. Dumont, 46 N. J. Eq. 223, it was said that “the party alleging undue influence must prove it, either directly .or by establishing such circumstances as tvill warrant a presumption against the instrument which, in the absence of affirmative evidence, showing that the paper was a spontaneous act of the testator, must control as a conclusion of fact.”

It is probably true that the mind of the testatrix was weakened, that her memoiw was not normal, and that her mental operations were rendered less efficient by her physical condition; yet I am convinced that she knew what property she had, and that she fully appreciated who were the natural objects of her bounty, and that she was able to consider and decide just what disposition of her property she desired to make.

My conclusion, therefore, is that the decree of the orphans court should be reversed, and the probate of the will be sustained.

So far as the question of the cross-appeal is concerned, I am inclined to affirm the judgment oE the court below, and to add to the amount adjudged to the parties and their counsel a sufficient amount to compensate them for their services in this court on the appeal, together with the necessary expenses, and I will so advise. I will fix the amount at the time of the settlement of the decree.