text:
    John W. Giffin v. David Gascoigne.
    [Filed July 30th, 1900.]
    1. The custody of a child should remain with his parents irrespective-of 'greater benefits which the custody of another might secure for him, unless the character of the parents, or. the environment to which the child woulcl in their charge be subjected, is such as actually to endanger his life, health, morals or permanent happiness.
    2. The burden of the proof showing the unfitness of parents to have the custody of their children is upon those who allege it.
    On bill, answer, cross-bill and proofs.

      Mr. Howard 0arrow and Mr. Wheaton Beraull, for the complainant.

      Mr. Herbert O. Bartlett, for the defendant.
   Grey, V. C.

(orally).

This case involves the determination of the right to the custody of a boy of fourteen years of age, who is now in court, and, under the circumstances, ought to be disposed of while the minor ■ child is here present. There are many facts in the case which. are undisputed, and not many which are disputed. It is conceded by both sides that the complainant, John W. Giffin, is the sole surviving parent of this boy, who, in September, 1899, was fourteen years of age. The boy had lived with his father in Cleveland, Ohio, up to the early part of the year 1897. His father’s domestic affairs were most unhappily situated. He had difficulties with his second wife (not the mother of this boy) to an extent which made the family life extremely miserable. The testimony, as taken on the commission, is that, three years ago, during the period of the second marriage, the father’s conduct toward the wife was cruel and inconsiderate, and that he became, at times, intoxicated, and was occasionally harsh and, perhaps, cruel to the children. That testimony was given without cross-examination, and, apparently, ex parte, but it is corroborated, to some extent, by the testimony of the minor child himself, given here in court this morning. The father, in view of the unhappy circumstances of his household, seems to have desired to make some arrangement for the care of his boy at some other place than his home.

A divorce suit was brought in Ohio, by the wife, and final judgment was given therein,' divorcing the husband and wife. Eor a day or two after the separation of the husband and wife the boy Herbert stayed with his stepmother, and then was taken to the house of his aunt, Mrs. Hobart, his father’s sister. This lady was then caring for her father, a very old gentleman, who was ill, and, because of this, the boy was temporarily kept at the residence of another aunt, and was afterwards sent east to his grandfather Gascoigne’s family. This grandfather is the defendant in this suit, and now contends that the sending of the boy to his house was a finality; that it was an abandonment and an emancipation of the boy, by which the further custody and care of him for his support and education was given to this grandfather, and that is the first point made in assertion of the defendant’s right to the final custody of this child.

The weight of the testimony shows that the arrangement which was made was not one of abandonment by the father of the child, nor was it to deposit him with his grandfather for his education and maintenance until he became of age; nor was it, indeed, anything hut a seeking by the father to have a temporary home for his child because of the unhappy conditions of his own family life. The proofs show neither agreement that the father surrendered the child, nor that he was in any way relieved from the obligation to maintain him. The complainant contends that the child was placed in his grandfather’s family to board. While the answer denies that, I am satisfied that the denial is not in accordance with the evidence. The letter inviting the grandfather’s family to take the boy asked them to take him to board. Money was paid, in part by the father, and, to the amount of $175, by the aunt, Mrs. Hobart, not with regularity, nor in such sums as would fully satisfy a reasonable compensation for the boy’s board, but it was paid for the maintenance of the boy in the defendant’s family, and was so received. There was clearly a recognition of the continuance of the obligation on the part of the father to support the boy, and that he was at his grandfather’s house not under the latter’s support and control, but still under his father. The attitude which the boy took in the family of his grandfather was that of a person who came to board, put there by one who had a right to put him there, for pay, and that the pay was in part given and was received as payment rightfully due for a service rendered. There has been some reference to the fact that some of the pay for board is yet due, but nobody pretends for a moment that the custody of the boy could be retained by the grandfather until the board is paid. Of course, there could not be a lien upon the child for the payment of his board. The delivery of the child would not relieve the father from the obligation to pay the board. But that in no way affects the right of the father to the custody of his child, who does not in any degree lose his right to the custody of his child because he put him out to board.

The* next point made by the defence (and it is the most important one in the case) is that the grandparents, although they have received this boy, as I am bound to hold, under a contract to maintain and support him for pay, had a right, and have now at the present time a right, to retain this child in their custody against the claim of the father, because, they say, the father is not a fit person to have the boy in charge.

There has been some misunderstandings of the law touching the choice of a minor child himself as to his custody. This has arisen because of a somewhat novel proceeding in the case of Richards v. Collins, 18 Stew. Rq. 283. That case involved the question of the custody of a child, and the court of appeals held that where the child was of an age to have an opinion which •might be worthy of consideration, the court would receive the expression of the wishes of the child as to the custody in which he might prefer to be placed. The court did not, however, say that the preference of the boy should be conclusive. Like other evidence it is to be considered by the court, it is to have its proper weight in determining the question as to future custody. In this case the boy is well grown and over fourteen years old, though obviously quite immature, easily influenced and controlled rather by. the desire to continue relations presently kindly and affectionate, than by a considerate judgment touching his general welfare in the future. His testimony has been ■ admitted and favors his retention by his grandfather. It is, in my judgment, of little significance, as the proof shows that for months past his whole course of life has been arranged by his aunts, part of his grandfather’s family, for the purpose (though they deny it) of concealing him from his father, so that he might not even see him. Such a line of conduct, vigorously pursued, makes the opinion of an undeveloped, impressionable child of little value. He has been taught to regard his father as a “bugaboo,” and here expresses the impression thus imposed upon him. But little weight can be given his personal preferences, as I shall, in a moment, show by reference to his conduct so lately as last summer (1899), while visiting his father and his aunts in Cleveland.

The case above cited is also referred to as an authority to the effect that the court would disregard the family relation and award the custody of the child to that one of the litigants who would and could deal with it most beneficially for its future welfare. I cannot accept that as a true statement of the judgment in Richards v. Collins. Such -a view would take his child from the poor man and give it to his richer neighbor who might offer to adopt it. It would stand as a temptation to the breaking of family ties whenever the attractiveness of a child might tempt a stranger, who could secure'it a higher station in life, to-make the struggle for its possession. In the rightful adjustment of the family relation the child should occupy that station in life into which he is born. If his father is poor, he must share his poverty. If the father is cross and ill-tempered and is occasionally inebriated, these are distressful characteristics which may make the child’s life less happy, but, until it is shown that they are of such force and importance as to endanger the child’s welfare in that place in life into which it has pleased God to call him, their existence constitutes no reason to deprive the father of his possession of his child.

The true view, and that which, on the whole, judgment was held, in the case above cited, is that the custody of the child should remain with his parents, irrespective of greater benefits which the custody of another might secure for him, unless the character of the parents and the environment to which the child would, in their charge, be subjected is such as actually to endanger his life, health, morals or permanent happiness.

The father is entitled to have his child unless those who allege-him to be unfit prove their allegation to be true. In the case in hand the undisputed evidence as to pecuniary capacity is that the father is worth some $15,000; that the aunt, Mrs. Hobart, with whom the child, if given to the father, will have his future home,.is worth $25,000; that she has no children of her own, and intends to give this boy a substantial part of her estate; that it is the father’s purpose to give the boy a collegiate education, and thus fit him in the best manner to advance his future interests. The character and position of the aunt, Mrs. Hobart, are in no way questioned, and her entire worthiness is apparent in both her appearance and in the frankness of her testimony. It is shown, as above stated, that some three years ago, during the period of his unhappy family trouble with his second wife, the complainant was sometimes intoxicated; that he was, on several occasions, harsh and, perhaps, cruel to his family; that he resided, for a while, over a beer' saloon, and on one occasion took his son into a saloon and gave him a drink of “pops.” But the testimony' does not satisfy me that the inebriation was habitual, or that the father’s harsh conduct was more than occasional, or that it was anything but the momentary expression of a passing feeling. The most careful examination failed to show that the drink called “pops,” which the boy said his father gave him in the saloon, produced any intoxicating effect. While the father lived over the saloon, and during the unhappy period of his separation from his wife, he cared for the boy by placing him with his sisters and with the defendant. After the boy was sent to the defendant’s house the -father sent him a bicycle and a piano, and in the summer of 1899 had him brought out to Cleveland for a visit, of some six weeks, at his aunt’s, Mrs. Hobart. During this period the father and son took frequent bicycle and carriage rides together, and there seems to have been a perfect restoration of kindly and affectionate feeling between them, and no mention, on careful inquiry, of a single act of indiscretion or misconduct on the part of the father. To such an extent was this reconciliation that the boy cried when he was about to end his visit and return to the defendant’s house. The boy admitted that he cried upon leaving Cleveland, and sought to deny that it was because of regret for his coming away, but his manner on the stand and his explanation satisfied me that there was, so late as the summer of 1899, the warmest affection and confidence between the father and the son, and that his denials of regret at this parting were the results of the influence of his present surroundings. There has been no proof that the father,-since three years ago, has abandoned himself to the habit of intoxication. The sister, Mrs. Hobart, with whom he lives, testifies that but once or twice has she known him to be affected by liquor, and then only to a slight degree.

On the other hand, the testimony of the defendant and of his daughter was not given with candor. There was constant hesitation to reply to questions the answers to which might be unfavorable. Both the defendant and his daughter sought to convey the impression that there has been no effort to prevent the father from seeing the son. But the proofs plainly show that most energetic steps were taken to keep the boy from the father. The boy was even taken from school and sent to Philadelphia for several months, obviously for no other reason. The .grandfather surreptitiously, without notice to the father, took out letters of guardianship upon the boy’s person and estate, without the least occasion, as the boy has no estate. The defendant and his family, for the past eight months, have been vigorously struggling to secure for themselves the custody of this child from the father, and on the stand they seek to create a contrary impression. Their attitude is so strenuous that it leads me to believe that the boy, living for months in such an environment, reflects, in his testimony unfavorable to his father and in his expression of preference to live with the defendant, the feelings which his aunt, Miss Gascoigne, impressed upon him, and not his own uninfluenced choice.

The evidence indicates that however his feelings may be temporarily hurt in leaving the family of the defendant, there is no likelihood that his permanent happiness will be in any way endangered by his return to the custody of his father, nor is there, upon the whole case, a showing of any reason sufficient to justify depriving this father of the custody of his child.

I will advise a decree that the boy be restored to the permanent custody of the father, in accordance with the prayer of the bill, and that the cross-bill, by which the defendant- seeks to have the boy awarded to him, be dismissed, with costs on' both decrees against Mr. Gascoigne.


source: Caselaw Access Project

author: Grey, V. C.

license: Public Domain

text:
    George G. Way et al. v. The American Grease Company et al. The American Grease Company v. Peter C. Vogellus et al.
    [Filed August 3d, 1900.]
    1. Directors of a corporation which is fully organized and in the active conduct of its business, are bound to afford to existing stockholders an opportunity to subscribe for any new issue of shares of its capital stock, in proportion to their holdings, before disposing of such new shares in any other way.
    2. Where it appears that directors disregard the above rule, and for the purpose of securing themselves in office and in control of the corporation, issue stock to their friends for but a small proportion of its par value, and in breach of the by-laws of the company, their conduct is a fraud upon the existing stockholders, and the company will, at their instance, be restrained from receiving votes at its meetings upon such fraudulently-issued stock, and the defendant holders from voting thereon.
    On bill, answer and proofs.

      Mr. William T. Hilliard, for George G. Way et al., complainants, and for Vogellus et al., defendants.

      Mr. Henry I. Budd, Jr., and-Mr. Joseph H. Brinlon (of the Philadelphia bar), for the American Grease Company.
   Grey, V. C.

(orally).

Cross-injunctions have been allowed in these causes, and they ought, if possible, to be disposed of speedily. The election of the officers of the corporation interested has been postponed for some months awaiting the determination of the questions in this suit. Counsel on both sides have fully argued both causes, and they may, 1 think, be now determined with fairness to all.

The matters in dispute are presented in two bills of complaint. The first one, filed by George G. Way and others against the American Grease Company and others, defendants, for the purpose of restraining the holders from voting on shares of stock of the American Grease Company issued in two separate lots, one in August, 1899, and the other one in December, 1899. Way and others are the holders of a large part of the original issue of stock in the American Grease Company, and they allege that these two later issues were fraudulently made and unlawful as against them as bona 'fide stockholders in the company. The grounds upon which they base this charge are that the August issue, though authorized by the stockholders, was made by a meeting of the directors held without the notice required by the by-laws of the company; the December issue was unauthorized by the stockholders; and both issues were made without any contract or undertaking on the part of the recipients of the stock to pay par value into the treasury of the company for their stock, on the contrary the company received but $8 out of the $50 par of the stock issued. Both issues were made without affording any opportunity to complainant and other original stockholders of the company to take the new stock at the par value in preference to issuing it to strangers. At the time these issues were made, the company was fully organized and engaged in the active conduct of its business. A dispute had theretofore arisen as to its management, and Way and others, original holders of the stock, who then had a sufficient number of shares to control the company at the coming election, contend that these later irregularly issued shares of stock were so dealt with by the officers of the company that their friends and relatives might hold and use them for the purpose of keeping those officers in their places, and of preventing those who lawfully ought to control the company from having the privilege which the law gave to them as an incident to their holding of a majority of the stock. They ask that the election should be delayed, and that the two issues of stock made in August and December, 1899,, should be declared to be void as .against them, and be directed to be given up and canceled. To that bill, answer was filed by the persons in the management of the company, who had done the acts complained of, not substantially denying that they had done the things charged, but justifying their conduct, and insisting that it was lawful and unchallengeable.

The second bill was filed by the American Grease Company (which was under the control and management of the defendants in the Way case), with one of the stockholders, named Swing, as co-complainant in his own behalf and on the behalf of the other stockholders, against Mr. Way and others, holders of the original issue of stock, and against Mr. Yogellus and other persons, to whom that stock was first issued, denying the validity of the original issue of stock because of a failure of the consideration on which it was issued, and of fraudulent conduct on the part of Mr. Yogellus, and praying that the original issue of ’.stock might be declared void, and that it might be delivered up to the American Grease Company for cancellation. The ■defendants Way, Yogellus and others, holders of the original issue of stock, deny these charges, and on this issue was joined by the defendants Way, Yogellus and others, insisting that they were entitled to hold the original stock as valid, and to vote on it at the meeting of.the company.'

These two cases being thus at issue came to hearing, and inasmuch as the questions involved in each were such as to affect the dispositon of both cases, counsel agreed that they be heard together, the testimony taken to be related, so far as it was pertinent, to the issues raised in the several causes.

The question which both counsel recognize as the first to be ■disposed of in considering these causes, was whether or not the first or original issue of stock should be invalidated. If that issue of stock is void, then Messrs. Way and others, who aré holders only of that issue of stock, have no status to impugn the validity of the second and third issues of stock, and so counsel have both considered, both admitted and both argued. The lawfulness of the’first issue of stock is 'disputed, first, because it is •claimed that the Butchers’ Interstate, &c., Eefining, &c., Company, which purported to convey certain patent-rights and also its business to the American Grease Company as consideration 'for that original issue of stock, was never lawfully incorporated, and was therefore incapacitated to convey the patents, &c.; second, that the agreement was to convey the full and entire territory of the patents, when in fact the interest in ten named states had previously been conveyed to another corporation, the Universal Drier and Digester Company, and thirdly, that Mr. Vogellus, who promoted the American Grease Company, falsely and fraudulently represented that the company was receiving by lawful conveyance full and perfect title to the whole territory of the patents.

A considerable amount of evidence has been taken upon the-question of legality of the incorporation of the Butchers’ Interstate Refining, &c., Company. Its regularity and sufficiency, if properly challenged by a direct proceeding, appears to be somewhat questionable. The proceedings for its incorporation were-very irregular. Its certificate of incorporation was never filed' in the secretary of state’s office, as required by sections 9 and 10-of the General Corporation act (P. L. of 1896 p. 281), under which it was incorporated. But it was just as conclusively shown that the association of these parties for the purpose of incorporation was in good faith; that they did in fact organize their corporation; that they held themselves out to the world as incorporators, and entered upon the conduct of the business which, as a corporation, they had undertaken to conduct. There was much ignorance, carelessness and irregularity, but there was a bona fide belief on the part of those acting that they had a right to assume and carry on the business of a corporation according to their certificate of incorporation which they had filed in the Gloucester county clerk’s office. Acting on this belief, the Butchers’ Interstate company dealt with the newly-formed company, the American Grease Company, and transferred to it the' patent-rights, and also an option on a place of business in Philadelphia, which was afterwards the latter company’s location, and a current business of some little extent. The new company, the American Grease Company, dealt with the butchers’, &c., company as a corporation.- The new company’s stock was issued in purchase of the patents, and business of the older company, many members of the new company having been associated with the older one, and knowing of the reason and purposes of the arrangements made. So far as the irregularity of the incorporation of the butchers’ company and its ability as a corporation to make a conveyance is disputed as a ground for the invalidation of the original issue of stock of the American Grease Company, I think the matter is within the ruling of Vanneman v. Young, 23 Vr. 404, where the court of errors held that the legality of an incorporation, because of deficiencies such as are here alleged, cannot be attacked by those who dealt with parties acting in good faith, as they believed, in a corporate capacity. . •

Upon the second objection, that there was fraud in the conveyance of the patent-rights from the butchers’ company to the American Grease Company in that the territory of the ten named states had already been disposed of to another company. The testimony on this point is apparently quite conflicting, but when considered in all its parts, does not exhibit a case of fraudulent dealing. That the use of the patent in the ten states had been previously conveyed to the Universal Drier company is true, but in that company, Mr. Vogellus.(who promoted both the Butchers’ Interstate and the American Grease companies) was a majority stockholder and the heaviest creditor. The weight of the evidence shows that he made known to the projectors of the American Grease Company the fact that this interest in the patent in the ten states was held by the Universal Drier company; that he expected to get it back, and would use his power as stockholder and creditor of the latter company to accomplish this, and that when he did he would procure this additional territory under the patent to be transferred to the American Grease Company. It was under this knowledge and upon this understanding, that the latter company accepted the conveyance of the patents, and issued its original stock. Some ineffectual and ignorant efforts were made to obtain from the Universal Drier company a re-conveyance of the use of the patent in the territory of the ten states, but they only indicated a willingness to obtain the re-conveyance to be made, and not its accomplishment. . As the transaction was in good faith, the parties being informed of the partially defective title, and having dealt with reference thereto, it cannot be said that there was either fraud or failure of consideration in the issue of the original stock to the appointees of the butchers’ company, because the title to the ten states in the use of the patents was not perfected at and before that issue was made. This may yet be done as the parties intended it should.

As to the alleged fraudulent representations of Mr. Vogellus that the American Grease Company was receiving a conveyance of all the territory of the patents, the proof shows, as stated, that at and before the dealing-the facts were by Vogellus made known to the parties, and they organized the new company and issued the new stock with the knowledge that the title to the patents in the territory of the ten states was not complete.

The original issue of stock of the American Grease Company held by the complainant Way and those associated with him, is valid. The bill of the American Grease Company against Vogellus and others, seeking to have this stock declared void, should be dismissed, with costs.

The cause in which George G. Way and others, holders of the original* issue of stock of the American Grease Company are complainants, seeking to have the second and third issues declared fraudulent, is yet to be considered. These issues of stock have not been very vigorously defended by the counsel for the American Grease Company. Preceding the issue of August, 1899, differences had arisen as to the management of the American Grease Company between those who then held the majority of the stock of that company and the officers who were then in the management of the company. The stockholders had authorized a new issue of the stock to the number of five hundred shares. The directors of the company at a meeting held without giving the notice required by its by-laws, issued the stock. The third issue of five hundred shares, in December, 1899, was wholly unauthorized by the stockholders, and was the voluntary act of the directors of the company. In both these later issues of stock the directors sold the shares for very much less than their par value, so that the treasury of the company received but a small fraction of its due. They ignored the holders of the original issue of stock in the distribution of the new issue, giving to the existing stockholders no opportunity to subscribe for the new stock in proportion to their holdings. The new stock, upon the favorable terms noted, was sold to the relatives and friends of the officers of the company. It requires but little inference to be satisfied that the purpose of the directors in putting out these two later issues of stock was to maintain themselves in their places in defiance of the existing opposing majority of the stockholders. The portion of the money realized from the sale of these two issues, being at the most but $8 out of $50 of the par value, the difference — $-1-2—being retained from the company by the assent of the directors, as “commissions.” The amount thus allowed' as “commissions,” is not shown ever to have been paid by anybody, either to the company’s treasurer or to any broker or person aiding in the sale of the stock, and was plainly a mere pretence to get the control of the stock, and not a genuine brokerage charge.

At this time the company was fully organized, and had been for a considerable time with a full list of officers, &c., in the active conduct of its business. The directors’ duty in issuing new shares was to afford to the existing stockholders an opportunity to take the proposed now issue in the proportion in which the shares were held by them. In many cases corporations are incorporated, capitalized and organized by stockholders upon expectations based upon the maintenance of control by the existing majority of the holders of the stock. The power of distributing a new issue does not lie at the mere choice of directors. It is not a perquisite which they may use for their private advantage. They may not overthrow or secure for themselves the control of the corporation by means of a new issue of stock. This is true, whether as to a part of the stock authorized by the original incorporation which remains untaken (Reese v. Bank, 31 Pa. St. 78), or as to stock issued after incorporation, on a subsequently authorized increase. Gray v. Portland Bank, 3 Mass. 364, The directors in the case under consideration wholly ignored the right of the existing stockholders to subscribe for the new issue, and issued the shares for a nominal price, as stated, to their selected friends, and thus sought to secure for themselves their continued control of the company.

The power of directors of corporations has, under the authority of the American decisions, been quite widely extended, but in my view cannot be held to sustain such transactions as are here under judgment. They show a clear case of fraud upon the rights of the existing stockholders, the successful prosecution of which this court will restrain.

The issues presented on these pleadings do not call for the ascertainment and adjustment of equities between the holders of the shares of stock issued upon these fraudulent contracts with the directors and the company. The only matter here considered is the right of the original bona fide shareholders against the later shareholders, who accepted these certificates knowing that they were issued far below their par value, and in aid of a scheme to retain control of the company against those who then and theretofore held the majority of the stock. They participated in the effort to deprive the majority stockholders of their rightful privilege. The only relief here necessary to be given is such restraint as will be sufficient to prevent the success of the fraudulent scheme.

I will advise a decree in the case of Way against the American •G-rease Company and others, that the issues of the stock of that company made in August and December, 1899, were as against the complainants, unlawful and fraudulent, and that the company be restrained from permitting any holder to vote upon them, and restraining any of the defendant holders from voting thereon, with costs against the defendants.


text:
    Conrad Haberman v. Mary Kaufer et al.
    [Filed August 8th, 1900.]
    1. A motion to strike out a defence in an answer as impertinent or immaterial will be refused, unless the matter, criticised is so unrelated to the complainant’s claim as to be unworthy of any consideration as a defence, either of fact or of law.
    2. A complainant may not, under a motion to strike out, present and have determined the sufficiency in law of facts set forth in an answer to constitute a defence.
    3. When a complainant, who is the holder of a title to lands by devise, and the executor of the will devising them, files a bill to enforce the specific performance of a contract for the sale of the devised lands, which he claims operates antecedently to the will, and makes defendants only the holders of legacies charged by the will upon the lands for the purpose of devesting the charge, a cross-bill filed by the defendant legatees, with an answer denying the contract, praying sale of the lands to pay their legacies, will not be stricken out as impertinent, nor because not germane to the subject-matter of the original suit.
    4. When, by a bill in equity, an apparent legal charge upon lands is challenged, this court has jurisdiction, under a cross-bill in the same suit, to enforce the charge.
    5. A cross-bill may bring in new parties if their presence in court in the suit be necessary to grant affirmative relief in aid of a defence.
    6. If a cross-bill lacks necessary parties as defendants, it will not be stricken out for that reason.
    7. WThere there is such a lack, and the cross-bill has not, for that reason, been challenged by the defendant, the court will stand the cause over until the necessary parties are brought in as defendants.
    On bill, &c., and motion to strike out both, a defence in an answer and a cross-bill.
    The complainant is one of the sons of Michael and Caroline Haberman. He alleges that Michael, who kept a cheap boarding-honse in New Brunswick, came, in 1894, to be in feeble health; that Michael, by parol, agreed with the complainant that if the latter would give up his own business, and live with and care for his father and his wife, Caroline, and manage the lodging-house business for the remainder of their lives, that they, Michael and Caroline, would, on their death, devise certain houses and lots in New Brunswick, described in the bill (the title to which was held by Michael), to the complainant as a recompense for his services. The complainant alleges that he performed the agreement on his part during Michael’s life. In December, 1896, Michael died, testate. His will is dated November 30th, 1896, and makes his wife, Caroline, his sole devisee in fee and sole executrix; it was proven in January, 1897, and letters testamentary were issued to Caroline.
    The complainant alleges that he further performed his agreement by caring for Caroline and for the lodging-house business during her life. In September, 1897, Caroline died, also testate, bequeathing' a number of money legacies to the amount of $2,000, and giving all the rest of her estate, real and personal, to the complainant, whom she made sole executor. The complainant proved the will and took out letters testamentary.
    The complainant alleges that nearly the whole personal estate of Caroline has been used up in paying her debts and funeral expenses; that there is no money to pay the legacies, and that, by the terms of Caroline’s will, the3r are charged upon the houses and lots in question, which are in such a dilapidated condition as to be worth little, if an}r, more than the amount of the legacies, &c. He alleges that by his agreement, which he has fully performed, he was to have the property clear of all subsequent encumbrances. All the legacies given by Caroline’s will are charged on the lands in question. All the legatees are made defendants in the bill, which prays that they may be decreed specially to perform the above-stated agreement by conveying' the lands in question to the complainant, free and clear of the-legacies, &c.
    The defendants, by their answer, deny that there ever was any such agreement as the complainant alleges, and also that he did' the acts averred to have been done in performance of it, and every supporting circumstance. They admit the wills and their' probate, &c., and insist that the complainant acquiesced in these dispositions of the estate, and, as residuary legatee and devisee, joined in efforts made to raise money to carry them into effect. They also allege that, failing in these efforts, the complainant conceived the idea of claiming compensation as a creditor for the services which he now asserts were the consideration for the alleged agreement; that he presented to himself, as executor of Caroline, two claims, under oath, for nursing and managing the business during the lives of Michael and Caroline, amounting in all to $3,360, and, as executor of Caroline’s will, submitted his petition to the Middlesex orphans court, exhibiting his own claim of $3,360 with others to show that the personal estate of Caroline was insufficient to pay hex debts, and-praying the order of the court in the premises, and on this obtained an order to show cause for the sale of Caroline’s real estate; that the defendants excepted to his account, seeking to charge him with assets not accounted for, which exceptions were heard and testimony taken thereon, and that, while this matter was thus pending, the complainant, on June 5th, 1899, obtained rules of that court, reciting his desire to withdraw the claims exhibited by him, ordering that his petition and rule to show cause be dismissed, and that he have leave to take his bills off the file.
    Having recited the circumstances above stated, the defendants’ answer
    “insists that the presentation by the said complainant of the said claims for compensation for the same services which he now alleges as the consideration for the said alleged contract, and the proceedings taken by the said complainant to sell for the payment of the said claims and other debts of said Caroline Haberman, the same lands which by said contract he now claims as his own, and not the property of the estate, constitute a conclusive election on the part of the said complainant, and a waiver of any benefit from said alleged contract, and that he is estopped to set up or rely upon the said contract or to claim said lands by virtue thereof.”
    The defendants also filed with their answer a cross-bill, setting up their rights as legatees, whose legacies axe charged upon the lands of the testatrix, Caroline Haberman, alleging that her personal estate was insufficient to pay the legacies, and praying that the lands might be sold by the order of this court for that purpose.

      The complainant has given notice and moves to strike out all that part of the answer which relates to the presentation of his claim to the Middlesex orphans court, and to the orders there made thereon, and also that part of the answer which insists that the complainant’s presentation of his claim for payment constituted an election to abandon any rights under the contract, or an estoppel to assert them, upon the ground that the matters recited are impertinent, because
    “immaterial as affecting the rights of the said complainant set forth in his bill, and do not constitute an election or waiver on his part or an estoppel upon him from alleging the said contract,” &c.
    The complainant also moves to strike out the whole cross-bill, because it is impertinent, and sets up no equity, and contains no matter which may be the subject of a cross-bill, &c.

      Mr. Freeman Woodbridge, for the complainant.

      Mr. Alan 'Ll. Strong, for the defendants.
   Grey, V. C.

The complainant moves to strike out the parts of the answer above noted, because, he says, they are impertinent and immaterial. To succeed in this motion he must show that the matter criticised is so unrelated to the complainant’s claim as to be unworthy of any consideration as a defence. 2 Story Eq. Pl. § 267 (note S). On such a motion, if the part objected to should be found to be so connected with the subject-matter of the complainant’s suit that it may fairly be deemed to present some question of either law or fact which the court ought to hear and determine, then it cannot be stricken out as impertinent, but must be considered, and its sufficiency must be passed upon as a defence either of fact or of law to the action.

This characteristic of a motion to strike out 'for impertinence appears to have been overlooked by the counsel on both sides, as they have each argued the motion to strike out as if it presented the question of the sufficiency in law of the challenged facts set forth in the answer to constitute a'defence.

The complainant claiuis that by á named contract he is entitled to have certain lands conveyed to him for services rendered, and asks that the contract be decreed to be specifically performed. The defendants contend that there never was any such contract, and allege certain facts which, if true, tend to support the contention. They also aver that these facts, if there were any such contract, show that the complainant has abandoned it by claiming satisfaction in money for the same services which are alleged in this suit to have been in consideration for the contract to convey, performance of which is here sought.

These incidents have' direct connection with the subject-matter of the complainant’s claim, and dispute its validity in fact and in law. When they are considered it may be found that they do not'constitute a defence which is sufficient to defeat the complainant’s right to a decree, but it cannot be said that' they axe so impertinent or immaterial to the controversy before the court that they are not worthy even to be admitted to consideration.

The position of the complainant on this motion to strike out is substantially that set up in Doane v. Essex Building Association, 45 Att. Rep. 537, and there overruled.

He seeks, under a motion to strike out, to demur to the defence set up in the answer. This practice is not allowed in this court, and is not within the spirit of rule 213 governing motions to strike out answers. A motion to strike out a defence in an answer, under that rule, takes the place of the more tedious procedure by exceptions. The rule does' not introduce a new practice whereby the legal sufficiency of a defence presented in an answer may be tested by moving to strike it out; that is, under the form of a motion to strike out, the complainant cannot,' in substance, demur to the answer. Leslie v. Leslie, 5 Dick. Ch. Rep. 155; Doane v. Essex Building Association, ubi supra; Brill v. Riddle Co. (May, 1900, in this court).

The further contention of the eomplainant is that the whole cross-bill of the defendants should be stricken out, because he insists that the matter there set up and the relief sought are foreign to the main suit, and not' the proper subject of a cross-bill.

The single purpose of the cross-bill is to obtain the lands (which the complainant claims were agreed to be conveyed to him) to be sold under the order of this court. The pertinency of the cross-bill can best be determined by a consideration of the objects of .the complainant’s suit. He claims to be entitled, under a contract with one Michael Haberman, to a conveyance of lands of which the latter died seized. Michael ignored the contract, and devised the lands to Caroline. She also ignored the contract, and charged the lands with the payment of her debts and of certain legacies, and, subject to these charges, devised them to the complainant and made him executor of her will. The complainant proved this will and undertook its execution. He now files his bill, and makes the legatees of Caroline defendants, in order that the decree may cut off their charge upon the lands. They, by answer, deny the existence and also any performance of the contract, and, by cross-bill, ask that the lands admitted to have been devised to the complainant, and to be charged to pay their legacies, may, by the order of this court, be sold for that purpose.

The complainant insists that he has come into court only for the enforcement of his alleged contract, and that he is not a party in any other capacity; that the cross-bill seeks to have him respond as devisee of the title to the land and as sole executor of the will of Caroline, and this, he claims, is to bring in a new party by cross-bill, which, he contends, cannot be done, citing Richman, v. Donnell, 8 Dick. Ch. Rep. 35, where Vice-Chancellor Bird held that if the establishment of the defendant’s rights require him to raise issues not within the scope of the original bill, and to bring in new parties, he must file an original bill. This view has force only where new matter is set up in the cross-bill, which is foreign to the subject to which the original bill is addressed. It does not apply in cases like the present, where the relief sought by the cross-bill affects the same subject-matter dealt with in the original bill, and the denial of relief to the original complainant will, under the circumstances of the case, be substantially a declaration that the affirmative relief sought by the cross-bill should be adjudged. In such cases it might be that the whole of the matters in dispute between the parties could be settled in one suit, if all the parties entitled to be heard could be brought in as defendants in the cross-bill. The defendants hold legacies which are admittedly charged on the lands, conveyance of which is sought to be enforced by the complainant as purchaser by contract. He makes these legatees defendants solely because they hold these charges on the lands in question. They dispute his claim, and ask that they may have affirmative relief against him, touching this charge on the lands, not, it is true, in his capacity as purchaser, but as executor of the will and devisee of the lands.

If it be admitted that the relief sought by the cross-bill requires that the complainant be defendant in a new - capacity, and that he is,.therefore, a new party, it is not an unwarranted practice, for the court of appeals has declared that where it is necessary to bring in new parties to a cross-bill in order to grant affirmative relief in aid of a defence, it may be done. Green v. Stone, 9 Dick. Ch. Rep. 401. The opinion in that case further gives a strong intimation that in this court in such cases that mode of procedure should be followed which will dispose of the entire litigation in one suit. Ibid.

The complainant contends that the relief sought by the cross-bill is wholly unrelated to the rights asserted by the original bill, and he asks: “If the cross-bill had been an original bill for the payment of these legacies, would Conrad Haberman (the complainant in the original bill) have been a necessary or proper party to it in the character in which he sues as complainant ?”

Conrad sues as complainant, claiming to be the equitable owner of the land in question. If the defendants should seek to assert their right to realize their legacies out of those lands, the legal title to which was in the testator at the time of her death, and they disputed Conrad’s equitable ownership of that title under his alleged contract, as they now do, he would, undoubtedly, be a proper party, and would be a necessary one if it were desired to cut out his claim under his contract.

The objection to the cross-bill that it introduces a subject of litigation not germane to that presented by the original bill, is quite sufficiently met by the citations in defendants’ brief, which show that the matter dealt with is fairly related to the original suit. In Chicago Railroad Co. v. Chicago Bank, 134 U. S. 287, the bank was proceeding to sell on its own judgment. The railroad company filed a bill in equity to restrain such sale. The bank answered, and also, by cross-bill, asked the enforcement of •the judgment in the equity proceeding. It was objected that the cross-bill was not germane to the original suit, but, notwithstanding the objection, the cross-bill was entertained, the learned judges citing Railroad Co. v. Chamberlain, 6 Wall. 748, .and declaring that “where, in a court of equity, an apparent legal burden on property is challenged, the court has jurisdiction by a cross-bill to enforce, by its procedure, such burden.” In the present case the complainants in the cross-bill appear to be within the principle above quoted in seeking to enforce their legacies.

So far as the objection to the cross-hill is based upon the fact that the executor of Caroline Haberman is not a party, it strikes quite as forcefully the proceedings.on the original bill, to which the executor is not a party.

The complainant seeks, by his bill, so to dispose of lands Avhereof Caroline Haberman died seized that they may not, by any possibility, be applied to the payment of her debts. The complainant, in his argument, assumes that the pleadings show, as an admitted fact, that all the charges in the nature of debts against Caroline’s estate have been paid. This is not correct. It is shown that the personal estate amounted to $13.05 more than the debts, but this computation was reached by excluding counsel fees, executor’s commissions and surrogate’s fees. These necessary and primary charges obviously exceed $13.05. When they are considered, as they must be, it is plainly seen that the personal estate is insufficient; that the real estate of the testatrix must respond, and that the executor of the will is, therefore, in a situation where he has a right and duty to deal with the real estate to raise the deficiency. Chancellor Green declared in Downing v. Risley, 2 McCart. 93, that to a bill filed against a purchaser, with notice of a contract to convey lands, by the heirs of the vendee in the contract, the executor of the vendee should be made a party, because he had an equity in the decedent’s lands in behalf of the creditors, to apply them to the payment of his debts. The same rule was declared in Colfax v. Colfax, 5 Stew. Eq. 206, upon the same grounds, by Chancellor Eunyon. To permit a claimant of the decedent’s lands to enforce their conveyance without making the executor a party, and thus to destroy his right to apply those lands to the payment of the decedent’s debts, without giving him a hearing, when he alone can defend in the interest of creditors, does not seem to accord with correct principles. A cause wherein this was sought to be done was ordered to stand over until the executor should be made a party defendant. Kempton v. Bartine, 44 Atl. Rep. 463. It would seem that the complainant, in order to advance his cause to a hearing, may properly be required, by apt allegation and charge, to bring in the executor of Caroline’s will, in order to cut off his equity to apply the lands in question to the payment of her debts, &c. He is not relieved from this duty because he happens himself to be the executor.

It is quite obvious that the complainant in the original bill is not asserting any rights which he claims as executor or as devisee of the lands in dispute, but the successful prosecution of his suit will necessarily destroy the title which he took as devisee, and to be successfully enforced must cut out the above-named equity of the executor. It is also true that the cross-bill and the relief there asked affect his status in those several capacities, so that the line of cases referred to in Matthews v. Hoagland, 3 Dick. Ch. Rep. 458, to the effect that where the bill shows the official character of the suitor it is not necessary that he should be styled according to his office, may have application to justify considering the complainant in court on the cross-bill in all the capacities in which he is related to the subject of litigation.

The cross-bill is, however, not objected to for want of parties by the defendants thereto. If it be necessary, formally, to bring in the complainant in the original bill as defendant in the cross-bill, in the above-named several capacities, in order to consider the equities set up in the cross-bill, the remedy is not to strike out the cross-bill for want of parties, but to stand the causo over until the proper parties are brought into court. This was done in Wooster v. Cooper, 11 Dick. Ch. Rep. 760.

The complainant’s motion to strike out the above-noted defence in the answer and the cross-bill should be denied.


text:
    Oberon Land Company v. Mary Dunn et al.
    [Filed August 16th, 1900.]

      Gen. Stat. p. SJ/87 § 6 declares that on a bill to quiet title the court shall fix and settle the rights of the parties in the lands in dispute. — Held, that where, on a bill to quiet title, a feigned issue was awarded to try the question of the legal title to the lands, and after judgment in favor of defendants, both complainant and defendants conveyed all their interest in the lands in dispute to a stranger to the suit, the bill should be dismissed, since neither party had any rights in the lands to be bound by any decree. Under such a state of facts each party should pay his own costs.
    On bill to quiet title. Answers, award of feigned issue and return of transcript and postea.

    This cause, on bill to quiet title, &c., was heard before this court on the preliminary point whether the complainant had such peaceable possession of the premises in question as gave it standing to file its bill under the statute. Oberon Land Co. v. Dunn, 11 Dick. Ch. Rep. 750. The complainant was decreed to be in peaceable possession, claiming to own, &c., and thereupon on the application of defendants a feigned issue was awarded to try the question of the legal title to the lands. Issue was joined, and at the trial in supreme court circuit in Atlantic county, a verdict was found in favor of Mary Dunn and others, defendants, as appears by the.postea and proceedings in the law court, now here on file.
    The defendants’ counsel now applies for a hearing in this cause on the issues raised by the bill and answer thereto.
    The counsel for the complainant gives notice of a motion to dismiss the bill, upon the ground that both complainant and defendants have convej'ed away to a stranger all their interest and estate in the. premises described in the bill of complaint, and that none of the parties to the suit have any further interest in its prosecution or defence. The two motions were heard together. Affidavits were filed, and deeds were produced establishing the fact that both the complainant and defendants had, for valuable considerations paid, conveyed all their interest in the premises in dispute to Arvine H. Phillips, who is not a parly to this suit. There is no denial that this disposition has by all the parties been made of the subject-matter of this controversy. The defendants insist that notwithstanding the cause shall proceed to hearing and decree. •

      Mr. David J. Pancoast, for the complainant.

      Mr. George A. Bourgeois, for the defendants.
   Grey, V. C.

In the admitted present condition of this controversy each party has by deed parted with all interest in the subject-matter ■of the suit. Their grantee is a stranger who cannot be bound by any decree made therein. By the statute the decree “shall fix and settle the rights of the parties in the said lands,” &c. Gen. Stat. p. 3487 § 6. But the undisputed proof is that neither party has any rights in any of the said lands to be bound by any •decree.

The suggestion for further proceedings on this bill to quiet a title, which, so far as the parties to the suit are concerned, is .already quieted by their own acts, is an invitation to the ijourt to hear argument upon a purely hypothetical question and to make a decree which will be wholly inoperative. That is not the purpose for which courts hear causes. The parties have themselves, in a binding way, settled the whole controversy.

To question of costs even remains to be decided. It is well •established that where the parties settle their differences out of court without reference to the costs, each party shall pay his •own costs. Bruce v. Gale, 2 Beas. 211, and cases there cited.

The bill of complaint and proceedings thereon should be dismissed, without costs allowed to either party against the other.


text:
    Lottie R. Russell v. Benjamin Russell et al.
    [Filed August 16th, 1900.]
    1. Where an agreement in writing is complete on its face, and purports to contain the entire agreement of the parties, parol proof of another term will not be received, although the written contract may contain nothing on the subject to which the parol proof is directed.
    2. In such cases the completeness of the written agreement will be ascertained from the agreement itself.
    3. Parol proof offered to charge any person on any contract in consideration of marriage, cannot be received, whether the matter offered is the proof of a single term of an agreement or of the whole contract. The rule is the same in equity as at law. The operation of the statute of frauds cannot be avoided by a mere change of the forum of litigation.
    4. Equity will, where special equitable grounds are shown, give relief notwithstanding the statute, as in cases of part performance of parol contracts, where the party seeking to enforce has so changed his position that to apply the statute would be to aid rather than to prevent a fraud.
    5. The fact that the party whom it is sought to charge has done some act of part performance of the parol contract, is no reason for such equitable relief.
    6. Where a contract is made in consideration of marriage, it is thereby brought within the operation of the statute, and cannot be enforced if made by parol. The subsequent marriage cannot be set up as a part performance to take it out of the statute.
    7. The relations between persons engaged to be married are confidential. The intended husband may not, either by contrivance or omission, obtain an agreement before marriage which deprives the intended wife of so much of the benefit which she would have obtained by the marriage that it is reasonable to believe she was misled into making the ante-nuptial agreement. If it is shown that it does have this effect, the burden is upon the representatives of the husband to prove that she acted with knowledge of the sacrifices which she made.
    8. The burden of proof is upon the wife to show the existence of the gross disproportion which requires explanation from the representatives of the husband. It is only when this is established that the burden shifts. If the wife fails to show the existence of the disproportion, no obligation to explain is cast upon the representatives of the husband. If it is not shown that she loses anything by the ante-nuptial agreement, there is no occasion to believe she was misled.

      9. In New Jersey the wife acquires by marriage only an inchoate right of dower, and no interest in her husband’s personalty. The comparison to ascertain whether a disproportion exists must, in this state, be made between the values secured to the intended wife by the ante-nuptial agreement and the value of her dower right.
    On. bill, answer and proofs.
    Tbe complainant in this bill is tbe widow of John Russell, deceased, late of Cumberland county, Tew Jersey, to whom she was married on the 13th day of Tovember, 1892, and who died on the 20th day of July, 1897, testate, leaving him surviving the complainant, his widow, who had borne him no children, and leaving as his next of kin his three minor grandchildren, issue of his first wife. He also left three nephews.
    The complainant, at the time of her marriage to Mr. Russell, was a widow, fifty years of age, having adult children by her former marriage. She resided at Port Elizabeth, in Cumberland county, about four miles from Leesburg, where Mr. Russell lived. He was a widower of about seventy-five years of age. The complainant had known Mr. Russell for several years, and had been engaged to be married to him for about four months before their marriage.
    She alleges in her bill of complaint that Russell was possessed of real and personal property worth $250,000 at the time they became engaged; that she was not aware of the nature or value of his estate, but knew that he had the reputation of being a man of means; that after they became engaged, Mr. Russell told her that because of the unsettled condition of his business and affairs there might be delay in settling his estate, and without stating the nature or value of his estate, proposed that $15,000 should be provided for her, payable within six months after his death, to provide for her individual wants, and that in addition thereto he would provide for her liberally by his will, to which the complainant assented, saying she left to him to do entirely as he wished.
    That afterwards he proposed that the sum be made $10,000, and to make a liberal provision for her in his will, to which she also assented, declaring “she was willing that he should do whatever he thought best.” That shortly after this the complainant received a draft of an agreement which she saw reduced the provision for her to $5,000. Mr. Russell called her attention to this change, and explained that his affairs were in such shape that to secure her the larger sum would seriously inconvenience his executor; that $5,000 was enough for her immediate wants, and that in addition thereto he would provide for her liberally in his will. To which complainant assented without objection or suggestion, replying that she felt he would do what was right, and would carry out his promise, and having confidence' in him, would leave the matter to him to be arranged as he thought best.
    She alleges that she signed the proposed agreement for the payment to her of the $5,000, relying on his promise to provide liberally for her in his will, and that it was at once delivered to the trustee named therein, and that no copy of the agreement was furnished to her. That she had no advice of counsel, and was ignorant of the effect of the agreement. She further alleges that she never asked her husband to make a will, according to their alleged agreement, and did not know until after his death that he had made one. That the marriage agreement was never referred to during their married life. That she never inquired into the nature or value of his estate, and knew nothing of it until after his death.
    She further states that Mr. Russell did, while they were on a visit to Florida, in February, 1896, make his will, in which he left her the $5,000 named in the ante-nuptial agreement, and also ten .shares of Glassboro bank stock, of par value of $1,000, and gave all the rest of his estate to his grandchildren and his nephews and other legatees and devisees. This will was duly proven on July 31st, 1897, and by an inventory and appraise-' ment the personalty was valued at $89,727.66, but that it was in fact of much greater value, and he also died seized of real estate of the value of over $100,000, and that at the time of making the ante-nuptial agreement his estate was as great in value as at the time of his death.
    After the testator’s death, the complainant accepted from the trustee a partial pajnnent of $500 under the ante-nuptial agreement. This she alleges was in ignorance of her rights, and that she has refused to receive any further portion, though she admits the executor was willing to pay and deliver to her the $5,000 and the bank stock.
    She charges that Mr. Russell violated his agreement with her in that he did not make a liberal provision for her in his will. That he procured the ante-nuptial agreement from her by fraud; that his executors, devisees and legatees should perform his agreement by making a liberal provision for her, which she insists should be in excess of the total amount which would have come to her by operation of law had Mr. Russell died intestate. She tenders herself ready to release her dower and other interests in Mr. Russell’s estate, on fulfillment of the agreement.
    She makes the executors, devisees and legatees of Mr. Russell, defendants, and prays discovery of the whole estate, an accounting for the same, and that the written ante-nuptial agreement may be decreed to be void, and be canceled; that the defendants may be decreed specifically to perform the agreement of Russell to make .a liberal provision for her; that she may he declared to be entitled to receive the sum of $4,500-and also a liberal provision, not less than one-third of the personalty, and also the-value of her dower rights in the realty, -upon her giving a proper release of her dower right and other interest in the estate; that the decedent’s will may be decreed to have been made in fraud of the testator’s agreement with the complainant, and to be null and void, in so far as the distribute share of the complainant in the personalty of the decedent is concerned.
    There is also a prayer for an injunction restraining the defendants from disposing of the decedent’s property. Copies of the ante-nuptial agreement and of the will are annexed to the bill.
    The executor and principal devisees and legatees file litigating' answers, admitting the marriage and the will, but denying that the decedent was possessed of $350,000 worth of property when the ante-nuptial agreement was made, or at the time of his death! They profess their willingness to comply with the terms of the-ante-nuptial agreement, allege that the complainant accepted $500 under it, and deny that she did so in ignorance of her rights, as alleged in the bill. They deny that Russell agreed-to make a liberal provision for the complainant in bis will, deny that he has violated any agreement with her, and that he fraudulently procured her to sign the ante-nuptial agreement. They also deny the equity of the bill and they ask the same benefit as if they had demurred to the bill.
    The infant defendant legatees by their guardian file answers praying that their interests may be protected.
    The cause is at issue, and has come to a hearing on its merits.

      Mr. Benjamin J. Downer and Mr. Clarence S. Brown (with whom was Col. Robert G. Ingersoll, of the New York bar), for the complainant.

      Mr. Waller H. Bacon and Mr. David J. Pancoasb, for the defendants.
   Grey, V. C.

The complainant admits that the ante-nuptial agreement which she entered into with Mr. Russell in his lifetime, was made in consideration of their marriage. The contract produced is all in writing, and is signed by the parties to be charged therewith. The complainant does not deny its execution and delivery by her and Mr. Russell. Her claim for relief is based upon two several grounds — first, she contends that the written agreement is not complete in that it does not contain an undertaking by Mr. Russell to make for her a liberal provision in his will, which, she -insists, was a part of their ante-nuptial agreement; secondly, that she was induced to -enter into it by the fraudulent statements of Mr. Russell to the effect that he would, in addition to the provision fox her in the contract, make a liberal provision for her in his will, and by his omission to inform her of the extent and value of his property at the time of the making of the agreement.

The defendants deny that there was any other or additional agreement than that expressed in the writing, and insist that the complainant’s contention that the written agreement may be supplemented by parol proof of an additional term, whereby lie consideration to be paid would be increased, cannot be considered.

It is an established rule of evidence in this state that where the written contract is complete on its face and purports t.o contain the entire agreement of the parties, parol evidence will not be received to add another term to the agreement, although the written contract may contain nothing on the subject 'to which the parol evidence is directed, and that the completeness of the written contract is to be ascertained from the contract itself. Naumberg v. Young, 15 Vr. 331; Bandholz v. Judge, 33 Vr. 526. This rule is recognized and enforced in equity as well as at law. McTague v. Finnegan, 9 Dick. Ch. Rep. 460; Van Horn v. Van Horn, 4 Dick. Ch. Rep. 328 (Court of Appeals).

The written contract now under consideration appears to be complete and perfect in all its parts, and to provide for the complainant a compensation which is entire and final. The complainant seeks by parol proof to show that Mr. Eussell agreed to pay a compensation in addition to that stated in the written contract for the same service therein agreed to be rendered. The rule quoted prohibits the reception of such evidence.

The statute of frauds also interposes an insurmountable bar to the admission of parol proof seeking to charge any person upon any contract made in consideration of marriage. That the consideration of this contract was an intended marriage is undisputed. The contention of the complainant is therefore directly in the face of the statute, which is just as prohibitive in such cases, of the addition of a single parol term to a written .agreement, as it is to the enforcement of a contract resting wholly in parol. Courts of equity refuse to entertain suits for enforcement of such contracts, unless special equitable grounds be shown which justify the giving of relief, notwithstanding the statute.

Equity will grant relief where specific performance is sought of parol contracts, though their enforcement is prohibited by, the statute of frauds, in cases where the party seeking performance has been induced partly to perform the parol contract. This right to relief is based upon the fact that to apply the statute, would, in view of his changed position,-aid rather than prevent a fraud. But acts of part performance by the party sought to be charged cannot be set up as a reason for the exceptional action of this court in refusing to apply the statute. It is not his change of position, but that of the other party,, induced thereto by the parol contract, which makes the case one of hardship and injustice.

This is well illustrated by Lord Chancellor Cranworth in Caton v. Caton, 1 Ch. App. Cas. *148, in a cause which, in all of the essential facts that call for the application of the statute' of frauds to prohibit the "enforcement of the alleged parol contract, is similar to that now under examination. There was a parol agreement that in consideration of marriage the husband would make a will giving the intended wife all of her own, and also some of his property. The marriage took place, and the-husband made a will accordingly, but afterwards made a different will. The wife, after his death, filed her bill to enforce theparol contract, alleging her marriage as the element of part performance which should take the case out of the statute. But Lord Chancellor Cranworth held that though marriage is necessary to bring a case within the statute, to hold that it also-takes it out of the statute would be a palpable absurdity. He-further declared that it is certain that marriage itself is no part performance within the rule of equity.

In this his lordship’s judgment followed Montacute v. Maxwell, 1 P. Wms. 620, and Lassence v. Tierney, 1 Macn. & G. *571, and it has been accepted in this court in Manning v. Riley, 7 Dick. Ch. Rep. 44. He further declared that the execution-of the will by the husband caused no alteration of the position of the lady, save in the fact of her marriage, which, as above stated, could not be held to be such a performance as took theparol agreement out of the statute, and that "it will not be-argued that any consequence can be attached to acts of part performance by the party sought to be changed,” following this with a very apt illustration. In the present case there is no pretence that the complainant has done any act of part performance of' the parol contract which she seeks to have enforced, save only the single incident of her marriage.

The weight of authority is against the claim of -the complainant that it may be shown that the written agreement does not". fully and exclusively express the ante-nuptial contract, and that she may supplement it by parol proof of another term. Her contention on these points cannot be sustained.

The relief which the complainant claims to have by a decree enforcing the alleged parol promise of Mr. Eussell that in addition to the benefits secured to her by the written agreement he would make for her a liberal provision in his will, is necessarily dependent upon the parol proofs by which she offers to establish that promise. When those parol proofs may not be considered, all possibility of any relief by decree for the specific performance of any such contract is destroyed. It is unnecessary therefore to discuss the contention of the complainant that an agreement to make a “liberal provision in a will,” can be enforced by a court of equity. No authority was cited in which a contract so uncertain in its terms, and so dependent upon the individual view of the person making the agreement, has been enforced. In every day’s experience of life, what one person considers to be a liberal provision, is by others deemed under the circumstances to be niggardly. If the question of what amount of Mr. Eussell’s estate should be decreed to be a liberal provision for his wife were to be considered, it would be fraught with embarrassment because of the lack ,of those elements of certainty which judicial determination requires.

The second ground upon which the contract is attacked is that the complainant was induced to enter into it unadvisedly by the fraudulent statement of Mr. Eussell, and by his omission to inform her of the extent and value of his property.

If this contention of the complainant should be sustained, it would still be no ground for a decree for the specific performance of the alleged parol contract that a liberal provision should be made for complainant.

The most conclusive showing that she was by fraud induced to make an agreement which is proven, cannot justify a decree that a different agreement which is not proven, shall be specifically enforced.

If it shall appear that Mr. Eussell did by fraudulent artifice induce her to* make the ante-nuptial agreement, and that the complainant so asserted her rights that she is entitled to redress, her relief must come, if at all, by a decree setting aside the written agreement and declaring it to be wholly void, because of fraud practiced in obtaining it. This determination would not give to the complainant any distributive share in the personalty of the decedent as if he had died intestate. His will must stand as a disposition of his personal estate. He always had unlimited power to dispose of that as he chose. She would secure a dower right in her late husband’s lands. The real estate is in such great portion unimproved and unproductive that it may be doubted whether such a decree would be of more value to the complainant than the acceptance of the amount absolutely payable to her under the ante-nuptial agreement. The cause has been argued upon her part with energetic insistence that there should be a decree for the specific performance of the alleged parol contract that Mr. Russell would make for her a liberal provision in his will. As above shown, this cannot be granted.

The prayer of the bill asks that the written agreement may be decreed to be void, but apparently as a basis for the immediately following prayer for the specific performance of what the complainant insists was the entire ante-nuptial contract, which includes the terms of the written agreement and the added term for a liberal provision in the will, which the complainant contends should be enforced. Argument was, however, submitted claiming that the ante-nuptial agreement should be decreed to be void because of alleged fraud on the part of Mr. Russell in obtaining it, and in order to dispose of all the matters in issue, this phase of the case should be considered.

In charging that Mr. Russell perpetrated a fraud for which the written ante-nuptial agreement should be declared void, the complainant does not claim there was any misrepresentation to her of the contents of the paper, nor that she executed one instrument believing it to be another. Both the bill of complaint and the evidence show that the proposed agreement, as it now appears, had been a subject of conversation between the parties on several occasions previous to its execution, and that the amount of money to be secured by it to the complainant was, with her assent, several times reduced, and was finally fixed at the sum of $5,000, which is now in the agreement. Hone of its other terms are challenged because alleged to be different from those which the complainant supposed it contained. The complainant does not contend that it was represented to her that the written agreement contained a clause obligating Mr. Eussell to make a liberal provision for her in his will. This matter she claims was a separate and parol, promise made by Mr. Eussell, and was additional to those things which, by the written contract, he undertook to do, though for the same consideration — marriage. For her assurance that Mr. Eussell would make the liberal provision, &e., it is entirely clear the complainant relied wholly upon the parol promise of Mr. Eussell. This is the precise illustration used by Lord Chancellor Parker so long ago as 1720, to show that no relief can be given in equity in such a case, against the prohibition of the statute of frauds. Montacule v. Maxwell, 1 P. Wms. *620. Standing purely on a parol promise before marriage, there is no color to relieve the plaintiff. S. C., 1 Str. *237.

The proven and undisputed actions of Mr. Eussell at and before the making of the ante-nuptial agreement, though related in great part in the testimony of those adverse to his estate, not only fail to show any fraudulent design, but they actually indicate a fair minded purpose to deal with his intended wife in a frank way, to secure to her such a provision as he was willing to give, and she was willing to accept. It must be remembered that in 1892, when this agreement was made, he was seventy-five years of age, and she was an elderly widow — over fifty— with sons twenty-three and twenty-five years old. lie had already accumulated his fortune without her aid, and she had comparatively nothing. He had issue who might reasonably expect to receive his considerate remembrance. Her sons would retain the first place in her thoughts, as there was no probability that anjr children would be born of the marriage. From her point of view the provision made for her by the written agreement lifted her out of penury, gave her a home, and the enjoyment with Mr. Eussell of his fortune during his life, and secured her a comfortable maintenance and the absolute disposal of at least $5,000 after his death, and a possible further provision for her in his will.

His point of view in arranging the agreement was probably that which would be taken by a man, who, by patient care and persistent petty- saving had accumulated such property as in the remoter country districts is deemed to make one wealthy. He desired the society and housekeeping services of a capable and estimable wife, and he wished to avoid the annoyances incident to his wife’s signature and acknowledgment of his deeds.

The testimony as to the origin of the agreement is largely that offered on the part of the complainant, her own son being her most prominent witness.

The agreement was, as finally submitted, in typewriting, two copies being prepared. Mr. Russell does not appear to have hastened the making of it or to have brought it and secured its execution in his presence. The complainant alleges that she had no copy, but her son testifies that she received a copy through the^mail, and handed it to him to read. It was afterwards, the son says, discussed by Mr. Russell and his mother in his presence. There was therefore no attempt on Mr. Russell’s part at secrecy, and abundant time was afforded for examination, consideration and deliberate judgment. The son says he declined to advise his mother as to the making of the agreement, and told her that it was a matter for her decision if she was satisfied that Mr. Russell would do as he represented, and keep his agreement referring to the liberal provision in his will. The weight -and credibility of the evidence leads me to the conclusion that both the complainant’s sons and herself fully discussed the advisability of entering into this agreement before she made it. The son who was sworn testified that his mother handed this agreement to him to read, and it was proven that after Mr. Russell’s death this witness admitted that previous to the signing of the agreement he and his brother both advised his mother on the-subject of signing it; that his brother thought she should sign it, and that he had advised her not to do it. The brother was not called as a witness. The son denied this admission, but his-manner in the denial was not satisfactory of his truthfulness, and the statements of the witness who contradicted him stand so consistently with the undisputed facts pf their interview, that I am satisfied the son did make the admission, and that the agreement was in fact carefully examined and discussed by the complainant and her sons, and accepted with a full understanding of its true significance. Its terms are so simple, clear and distinct to show that the complainant would by the marriage acquire no additional interest in Mr. Bussell’s estate, save such as he might give her by will, that it is impossible to believe that she expected after executing it to have anything from him beside that which was provided in the agreement.

It is claimed that she acted in ignorance of the extent and value of Mr. Eussell’s estate; that he was bound before she made such an ante-nuptial agreement to inform her in detail of the nature and value of the different pieces of land he owned, and of the personal property which he possessed.

There is no proof that she executed the agreement without knowledge of the extent and value of his property, but the complainant strenuously insists that the burden is upon those standing in Mr. Eussell’s place, affirmatively to prove that she had knowledge, and that upon failure to make such proof, the agreement must'be held to have been fraudulently obtained and to be void. Several cases are cited to the effect that parties engaged to be married occupy a confidential relation, and that where the provision for the intended wife is disproportioned to the means of the intended husband, it raises a presumption of designed concealment, which obliges those who would sustain the agreement to prove that the intended wife had knowledge at the time. the agreement was executed of the character and extent of the husband’s estate. Kline v. Kline, 57 Pa. St. 120; S. C., 64 Pa. St. 122; Pierce v. Pierce, 71 N. Y. 154; Hessick v. Hessick, 169 Ill. 486.

The principle that those who are pledged to marry occupy a confidential relation, and that their contracts are not to be considered to have been made “at arm’s length,” is well established. The language of the decisions is sometimes lacking in precision, and in several cases is so expressed that they appear to hold that a presumption of unfair dealing will arise when it appears that the ante-nuptial provision for the wife is out of proportion to the value of all the property which the -husband possesses. If this implies that in order to save himself from an imputation of fraud in entering into an ante-nuptial agreement, a man must secure to his intended wife a fair proportion of all his property, whether she would by his marriage receive such proportion or not, I cannot accept it as a reasonable statement of his duty. His relation to his fiance is such that he is bound to deal fairly and candidly with her in the making of an ante-nuptial agreement, but there is no obligation upon him to secure to her any proportion, due or otherwise, of all his property, under the penalty that if he does not, their agreement must be decreed prima facie a fraud upon his part. The principle of fair dealing which underlies all these decisions on the subject is this: The intended husband may not by either contrivance or omission obtain an agreement before the marriage which deprives the intended wife of so much of the benefits which she would obtain by the marriage, that it is reasonable to believe she was misled into making the agreement. If it is shown that the agreement does deprive the wife, such proof, when considered with the fiduciary character of the husband’s relation to the wife, will impose upon the husband or those standing in his place the burden of proving that in making the sacrifice of the values which she resigned, she acted with full knowledge of them.

This condition of so great a variance in value between what is secured to the intended wife by the ante-nuptial agreement, and what she would get by her marriage, is a matter of evidence to be proven by the party who asserts it. No presumption will be raised that such a variance exists. It is only when this variance has been established by sufficient evidence that there is any reason to believe that the intended wife has been misled. It is only then that the burden of proof shifts, and obliges the representatives of the husband to prove affirmative] y that she was fully informed by him of the nature and extent of the property in which she might, by her marriage, have acquired an interest.

In considering the evidence offered to establish this condition of variance, which must be so great that it suggests a belief that the wife was misled, it will be found that the cases in which the rights of the wife, against the representatives of the deceased husband are most easily upheld, are those which have been decided in jurisdictions whose laws give to the wife by her marriage the largest interest in her husband’s estate, for it is with that interest that ante-nnptial contracts usually deal. In Illinois, for instance, the variance necessary to raise the presumption is much more readily shown than in New Jersey, for under the law of the former state the wife acquires by the mere fact of marriage and survivorship, not only her one-thircl dower interest in her husband’s'lands for her life, but also an absolute ownership in one-third of his personalty. Hessick v. Hessick, 169 Ill. 493.

In this state, the wife acquires by marriage simply a dower interest in one-third of the husband’s lands during her life. The fee-simple of all his lands, subject to her dower right, and the entirety of all his personalty, remain at his uncontrolled disposal, as fully after as before marriage.

Accepting the principle above stated that the burden of showing that the wife acted with knowledge, is cast upon the husband only when the amount secured to her by the ante-nuptial agreement, is out of all proportion to that to which as a wife she would be entitled, the comparison in this state, to ascertain whether the complainant has shown such an unconscionable variance, must be between the amount secured to the intended wife by the ante-nuptial agreement and the value of her dower right in her husband’s lands, which is all she would acquire in this state by the marriage.

The wife’s possible interest in her husband’s personalty, if he died intestate, is disregarded, because in this state the wife by her marriage acquires no interest whatever in her husband’s personalty. Thaj; remains after as before the marriage at the absolute disposal of the husband. The fact that a wife might possibly become entitled to an interest in the surplusage of her husband’s personalty after his death, cannot be held to have obligated him to deal with her with relation to its value at the time of the making of the ante-nuptial agreement. In order to entitle her to any share in his personalty several contingencies must happen. She must marry her intended husband, he must die intestate, she must survive him, and he must leave more than enough personalty to pay all his debts. Both parties know as a matter of law that a woman’s marriage to her intended husband neither gives to her any interest in his personal estate, nor does it in any way affect his complete ownership and control of it. For this reason he has no cause to hide its value from her in order that she may be induced to take less in an ante-nuptial agreement, nor has she any occasion to ask or expect a disclosure of its extent, because however great it might be, her marriage would give her none of it. This being the situation of the parties at the time the ante-nuptial agreement was made, it would be unreasonable against the husband to base an imputation of fraud upon a presumed suppression of facts, which, if made known, could not have affected the interests of the intended wife.

Has the complainant then shown that there is such a variance between the values secured to her by the ante-nuptial agreement and those which she would, in this state, have acquired by the marriage; that Mr. Russell’s representatives have the burden cast upon them to prove affirmatively that the complainant was fully informed of the extent and value of the interest she might acquire in his estate by her marriage ?

The agreement itself secured to her $5,000 absolutely, and barred her from all claim, unless some further part of his estate were given to her by his will, &c., and by his will he recognized the ante-nuptial $5,000 and in addition gave her some bank stock, shown to be worth about $1,500. The purpose and intent fairly attributable to him was to secure to his intended wife the sum of $6,500. The complainant claims that this was so unconscionably small in comparison with the amount of all her husband’s property that it must be presumed that he either falsely stated to her the extent and value of his estate or that he fraudulently concealed them. ,

But this is not, in this state, the true basis on which the comparison should be made to ascertain whether there is such gross disproportion as to suggest fraud. As above shown, it is not the whole of the husband’s property, but only that part which by the marriage the wife would be entitled to receive, that should enter into the comparison. The complainant’s counsel, however, has offered a large bulk of testimony touching the whole of Mr. Russell’s estate, and mistakenly assumes that it is the discrepaney between the value of the whole estate and the amount ¡secured by the ante-nuptial contract which will indicate a fraud upon the wife.

The evidence touching Mr. Russell’s real estate, which, for the reasons above stated, is the only portion of his property which -can be considered on this point, is of the most general and indefinite character. Its location, its general territorial extent, its character, in the most general way, and estimates of its value .are given. I have examined the complainant’s testimony on this point, and upon the most liberal consideration I am unable to glean from it the means of arriving at any computation of the probable value of a dower right in Mr. Russell’s lands. There is no showing that Mr. Russell’s estate in any of the lands in question was one of inheritance. The proof as to each piece of real estate shows an estimate of the sale value of an estate in fee. In some cases it is shown whether the property is improved ■or not, and in a lesser number the gross annual rentals are given, but in no case is there any proof of the expenses incident to its maintenance.

A wife in New Jersey acquires on her marriage a vested, but inchoate right, which entitles her to have set off to her, in case she survives her husband, one-third in value of the lands whereof he was seized at any time during the coverture, of an estate of inheritance. But it cannot be said that the value of her dower right is ascertained by fixing the sale value of an estate in fee in the lands and taking one-third of that value.

The case in hand itself 'shows the impossibility of such a method. Mr. Russell’s real estate has been described by the witnesses in ninety-two lots. This collocation is to a great extent the arbitrary selection of the witnesses, as several tracts are often put under one lot number. But to each lot an estimated fee-simple value is given. It cannot be said that Mr. Russell’s intended wife, in entering into the ante-nuptial agreement, dealt with him upon an expectation that as his widow she might be endowed of one-third of the values here proven.

This would be to assume that the intended wife expected to get a full one-third interest in fee-simple. Taking the classification as proven, it seeks, as stated, not to show the properties, so that a dower right in them could be valued, but simply to state an estimate of their total fee-simple values. There is an occasional proof of annual rental values of the tenant houses. Their trifling character may be seen when it is stated they run from $3 to $7 per month, and that the total annual rental of all the properties proven — twenty-two in number — is less than $1,300. There are also two small saw-mill properties, neither valued at $1,000.

There are two small farms, neither valued at over $3,500. His homestead, valued at $4,000, and the Lee property, at $3,739. Of these no rental value is given. The total value proven for all of the improved and rentable real propert}7, which is the only kind of real estate that would give value to a dower right, does not, bj7 the testimony offered by the complainarrt, exceed $35,000. The great bulk of the real estate consisted of more than fifty lots of unimproved bush, woodland and meadow lands, some of it subject to ebb and flow of the tide, necessarily wholly unproductive of any income (but requiring expenditures for taxes, &c.), none of which is of any substantial value for dower purposes, inasmuch as a widow cannot cut timber. All of this extensive únimproved and unproducing land was presented and used to swell the total value which the complainant had, as it is claimed, a right to enjoy in her intended husband’s propert}7, when she was misled into making the ante-nuptial agreement.

The evidence submitted does not afford sufficient certainty to enable any reasonably accurate estimate of the value of a dower right in Mr. Bussell’s lands to be made. It is the complainant’s failure to exhibit such proof which prevents a determination whether the amount secured to the complainant by the ante-nuptial agreement is so much less than she would have secured by her marriage, as to induce a belief that she was misled, under the authorities cited.

If conjecture be adopted as the mode of arriving at so serious a result, the probabilities tend rather to show that there was no such discrepancy as would justify the belief. The certain and absolute ownership of the $6,500 under the ante-nuptial agreement is indicated to be of greater value to the complainant than her dower right for life in one-third of the lands of Mr. Russell.

The weight of the evidence offered to prove the issue goes rather to show that there was no such disproportion between what the intended wife got by the ante-nuptial agreement, and what she would have received by the marriage, as would lead to the belief that she was induced to make that agreement by misrepresentation, or by suppression of the truth. The proofs indicate that she was as well cared for by the provisions of the agreement as she would have been without them.

This being the showing o.f the evidence, there is no burden cast upon the representatives of Mr. Russell to make affirmative proof of his fair dealing and frank disclosure of the condition of his property to his intended wife. If she lost nothing by the agreement, why should it be presumed that a fraud was perpetrated upon her in obtaining it to be made ?

' If there were any doubt that the complainant was fairly dealt with in the matter of the ante-nuptial agreement, it would be removed by her own subsequent conduct. The agreement was made on November 22d, 1892. Her marriage took place on the 30th day of November, 1892. Mr. Russell died on the 20th day of July, 1897. During the whole of Mr. Russell’s life the complainant must have known that the ante-nuptial agreement was relied upftn by him as a final settlement between them. She acknowledged that he never intimated any dissatisfaction with it during his life.

She had given her copy of it to Mr. Mulford, the trustee, and could have obtained it for re-examination or consultation at any time during the five years of her married life. If it was a fraud upon her, she could have proceeded in equity for its correction, even during Mr. Russell’s life. But that it was not, is strongly indicated by her own conduct after Mr. Russell’s death, which happened, as stated, on the 20th day of July, 1897. His will was proven on the 31st day of July, 1897. She was now free from any possibility of being misled by Mr. Russell, she knew (if she believed the charges in her bill of complaint) that Mr. Russell had not made a liberal provision for her in his will, and she also knew that he had not dealt candidly with her in stating to her the value oJE his property. Her natural course of conduct would have been to file a bill at once to redress her wrongs.

Ear from asserting that the ante-nuptial agreement was a fraud upon her, the complainant, on December 22d, 1897, more than four months after the will -was proved, accepted from Mr. Mulford, the trustee under the ante-nuptial agreement, a part payment of $500 on account of the $5,000 secured to her by that agreement, and was in treaty to receive and invest the remaining $4,500 when she -changed her mind, and concluded to begin the present suit. Her only explanation of this course of conduct is that she accepted the part payment without advice. The opinion and advice of counsel learned in the law is often needful and safe to be taken, but it ought not to be allowed to be used as a shield to protect from responsibility a course of conduct in a matter so simple as to require no legal advice.

The action of the complainant in accepting the situation under the ante-nuptial agreement during the marriage and for months after Mr. Russell’s death and proof of his will, goes far to corroborate the other proofs in the case, which indicate that she was in no way misled in making that agreement.

I will advise that the complainant’s bill be dismissed, with costs.