author: Lewis, V. C.

text:
    Arthur Redfern v. Fritz Koenemund.
    [Decided July 2d, 1915.]
    A master to whom a case had been referred, having reached his conclusions, sent for an expert accountant, who had testified as a witness for complainant, to prepare the schedules for him. The accountant had been questioned by both parties, and it clearly appeared that he merely followed the master’s conclusion, correcting only a clerical error. — Held, that there was no delegation of authority by the master to the accountant, or the slightest proof of improper dealings between the master and the complainant, and hence defendant’s objections to the report should be overruled.
    On objection to master’s report.

      Messrs. Weller & Lichtenstein, for the complainant.

      Mr. John J. Fallon, for the defendant.
   Lewis, V. C.

This matter comes before the court on objections to the master’s report. The application is made by solicitor of the defendant to have the report set aside and vacated, and the testimony taken referred to another special master, with leave to either party to offer additional evidence. The basis of the application is, that the special master in making his report had been guilty of an indiscretion, having employed an expert accountant who was a witness for the complainant before him to assist him in reaching his conclusion.

The evidence before me fails to sustain this allegation. Mr. Dougal Herr, the special master, voluntarily submitted himself for examination on the question. He satisfied me beyond peraclventure, by his testimony, that he had reached his conclusions first and then sent for the expert accountant to prepare the schedules for him.

Mr. Herr produced his own book of account, containing a tabulation of the figures submitted in the testimony taken before him. This book was entirely in his own handwriting, save on one or two pages where interlineations had been made in lead pencil by the expert. These interlineations were merely corrections of obvious errors in the calculations. They did not change the special master’s conclusions.

Mr. Peter A. Eckes, the expert accountant, corroborated Mr. Herr in every particular. He informed the court that the special master had sent for him, stating that he had reached his conclusions, and desired him to prepare the schedules. The special master then- delivered to him the hook containing his conclusions and all other proofs required in the preparation of an accountant’s statement. He had several conferences with Mr. Herr and delivered to him finally the schedules setting forth the conclusions previously reached by the special master.

The cases cited by solicitor of the defendant to uphold his charge of indiscretion all deal with reports of referees which have been set aside because of acts of impropriety committed before reaching a conclusion.

The case of Stone v. Stone, 28 N. J. Eq. 409, is not parallel. This was a matrimonial cause in which the state was a party and the -report appeared to be in the handwriting of the complainant’s solicitor.

There was ho delegation of authority by Mr. Herr, nor were his duties performed by a subordinate. He directed the expert accountant to prepare schedules from conclusions which he had drawn, and paid him for his services. This expert was the only accountant employed in the case, and, although a witness for the complainant, was examined by both sides. He was thoroughly familiar with the figures involved. There is no doubt that a referee or special master may employ a competent person to write down the testimony for him, and this is practically what Mr. Herr required from Mr. Eckes. 34 Cyc. 810.

In the case of Reynolds v. Moore, 37 N. Y. Supp. 72, referred to by the defendant’s solicitor, the referee took a retainer from the plaintiff in the cause before he had concluded the case, and, of course, the court held that the conduct was improper and his report should not be permitted to stand.

TVe must all accede to the proposition that a referee’s report should be set aside even upon the slightest proof of improper dealings between him and the successful side, providing the dealings have a tendency to influence his action. This is essential to the maintenance of purity in the administration of justice. In this case I do not find any war-rant whatsoever for the slightest imputation of misconduct on the part of the special master. To my mind, in reporting and stating a complicated account for this court, the master has performed his duties with skill and fidelity to the obligations of his office. Judicial findings must not be set aside on mere suspicion or surmise.


source: Caselaw Access Project

author: Backes, V. C.

license: Public Domain

text:
    Harvey E. Hunt, executor of Joseph Hunt, deceased, v. Silas Naylor et al.
    [Submitted April 6th, 1915.
    Decided July 2d, 1915.]
    1. Where an alleged gift of a fund by an uncle to his niece was not made until after its deposit by the niece, the issuance of a pass-book in the joint names of the uncle and niece, the handing it by the bank to, and retention by, the niece, was not a sufficient delivery, unless the uncle knew of its existence.
    2. The act of a niece in depositing the funds of her uncle as a joint deposit, on the understanding that the enjoyment of the fund was to be the niece’s, if at all, only on the death of the uncle, would be a disposition, testamentary in character, in violation of the statute of wills, and hence invalid.
    8. Where a niece who had been reared by her uncle lived with him and his aged sister for upwards of ten years, conducting the household and attending to their affairs, and the uncle was aged, physically weak, mentally infirm, and dependent upon her, his alleged gift of a bank deposit to her raised a presumption of undue influence, casting upon her the burden of showing by clear, convincing and satisfactory evidence-that the gift was his voluntary and intelligent act.
    4. In such case, where the uncle’s entire estate consisted of a $1,000 government bond and the bank deposit of $1,147, so that the gift of the deposit, if valid, would deprive him of more than half of his estate and leave an amount manifestly insufficient for his maintenance, there was a presumption of improvidence, easting upon the niece the burden of showing that the uncle had the benefit of proper independent advice.

      Mr. Edgar W. Hunt, for the complainant.

      Mr. H. Burdett Herr, for the defendant.
   Backes, V. C.

The question submitted for determination is: Did Joseph Hunt make a valid gift inter vivos to Elizabeth Naylor, née Hunt, of a fund of money now on deposit in their joint names in the Am well National Bank of Lambertville ? The contest is between Joseph’s executor and Elizabeth’s administrator. At the time the deposit- was made Joseph was eighty-eight years old, physically weak and mentally infirm, and entirely dependent upon Elizabeth. He and his aged sister, and Elizabeth, his niece, lived together, and for upwards of ten years the latter conducted the household and attended to the affairs of the old couple. They had reared Elizabeth, as well as the complainant, a nephew, who, for many years, contributed substantially toward their support. A check dated April 14th, 1910, for $1,147.44 was received by Joseph as his share of the proceeds of a sale in partition of a farm of which he was half owner. The check was endorsed by his mark and witnessed by Elizabeth, who, on April 22d, took it to the bank and deposited it in the savings department in the name of “Joseph Hunt or Elizabeth G. Hunt.” The pass-book was delivered to her, together with an identification card, which she signed and’ took with her to obtain, and which she later did, the signature of Joseph. The pass-book contains the usual rule that it must be presented in all cases on depositing or withdrawing money and stamped on the inside is the provision : “This account is subject to the order of either the undersigned depositors; the balance at death of either to belong to the survivor.” This stipulation is practically repeated, in writing, on the identification card, and, if perchance it plays any part in this case, it works in favor of the complainant, because Joseph survived Elizabeth. It does not appear that Joseph ever know that there was a pass-book. Elizabeth kept and took it away with her after her marriage in 1912, when she left Joseph’s home and went to Illinois, where she died. At the time she went away, Joseph liad been declared by a commission of this court a lunatic, with lucid intervals, for upwards of -a year then past. So far, the situation does not disclose a gift. The fund belonged to Joseph. He was physically unable to take it to the bank. The continued possession of the pass-book by Elizabeth, under the circumstances, and all of the other events, are entirely consistent with the theory that the joint deposit was made for convenience sake. Skillman v. Wiegand, 54 N. J. Eq. 198; Taylor v. Coriell, 66 N. J. Eq. 262.

The mental attitude of Elizabeth, as related. by the witnesses, indicates very strongly that at the time the joint deposit was made, it was not meant to work a change of ownership, and that she so understood it. I surmise that when the check arrived she reasoned, and, conscientiously, that for her years of toil and services rendered to her aunt and uncle, she was entitled to compensation, and the best way to secure it was to make a joint deposit, which would survive to her upon her uncle’s death. She evidently cogitated long, because the check was not deposited until eight daj's after its date, and in her planning she scrupled, for she sought the advice of Dr. Salmon, her uncle’s physician, of whom she inquired whether he thought it would be fair if she should do it. To the cashier, when she made the deposit, she said:

“That Mr. Hunt wanted her to put it' in her own name, but she did not want to do it that way; she preferred to have it where she might control it, that is to say, drawing interest for him in his failing years.”

She did not lay claim to the money. After the check had been deposited, she told her friend Mrs. Phillips “that she was going to get someone to try to persuade Uncle Joe to leave the money to her that was in the Lambertville hank,” and that that someone was a Mrs. Eva Parent. The inference, though somewhat obscured, is that Elizabeth did not regard the fund as having passed from the ownership and control of her uncle, and that she considered herself merely its custodian for him. An occurrence of some time later, it is contended, shows that a gift had been made. It will be recalled that Elizabeth took the identification card home with her to secure her uncle’s signature. On this he wrote his name as joint depositor, although, singularly, his endorsement on the check was by mark. Mrs. Parent says she was passing the house one day when Elizabeth called her in and asked her if she were going to Lambertville soon, to which she replied that perhaps she was on the morrow; and was then asked if she did, would she come up early and stop in, as she (Elizabeth) had an errand she wanted her to do. Mrs. Parent stopped in the next day and Elizabeth said, “Wait a minute, I want to call Uncle Joe.” When he arrived she said :

“I want you to get Uncle Joe to put Ms name on tliis signature card with mine. He gave me this money for my own, but I want him to have his money and I want the card so he at least can have the interest on the money if I should die.”

To this, Joseph protested, saying: “I don’t want to do it; I give this to Lizzie ior tier’s; Mary has her share and there is plenty for the boy [meaning the complainant].” The witness urged him, saying, “You had better do it if Lizzie thinks best,” to which he replied, “I don’t want to do it. This is Lizzie’s and there is plenty for the boy.” Now, when had he given it to her, and in what manner did he transfer the title ? It was apparently not until after the deposit was made, for it was after that time that Elizabeth said she was going to get Mrs. Parent to persuade him to give her the money, and if it was afterwards, then the issuing of the pass-book in their joint names, and its delivery to and retention by Elizabeth, was not a sufficient tradition, unless he knew of its existence, which, as I have said, is not shown. Goodrich v. Rutland Savings Bank (Vt.), 17 L. R. A. (N. S.) 181. Why Elizabeth postponed the signing of the card until Mrs. Parent called a second time by appointment, is unexplained, but it may be that on the first visit Joseph was not in a frame of mind to accede to her request. His declaration that he had given the money to her, it is true, is not irreconcilable with Elizabeth’s statement to the cashier that her uncle wanted her to make the deposit in her name, nor wi-th the notion that he gave her the check outright; but, it is in conflict with her previous utterances, to which I have called attention, and with what Joseph later told the complainant that he had received the money for the farm and that he told Lizzie to put it in the bank in their joint names, so that if anything happened to the complainant, he (Joseph) would have something to help him in his old days; and, with the statement made by Elizabeth to tire complainant that the money came and she did not want it to lay around tire house; that she had taken it to the Amwell bank and put it in her uncle’s name and her own, and that some time when he (the complainant) came up they would go down to the bank and have his signature added. The evidence is far from satisfying me that in the first instance the uncle gave the fund, or the check represending it, to Elizabeth, with donative intent, and that he then intended to, and actually did, strip himself of all dominion over it — requisites essential to a gift inter vivos j or, that he subsequent to the deposit, made a gift of it to her. Elizabeth’s act of making the joint deposit, and her suggestion to the complainant that his name be included as one of the depositors, challenges seriously the idea that she had become the absolute owner of the fund, and the view she entertained of her relation to it, evinces that she understood that the enjoyment of the fund was to be hers, if at all, only when her uncle had finished — a disposition, testamentary in character, in violation of our statute of wills, and falls within the rule laid down in Stevenson v. Earl, 65 N. J. Eq. 721.

But, even if all of the formalities for the making of a valid gift had been observed, with donative purpose, yet the transaction could not be sustained because of the unrebutted presumption of undue influence raised by the confidential relation which existed between Elizabeth and her aged and enfeebled uncle, and the dependency of the latter upon her, which presumption cast upon the defendant the burthen of showing by clear, convincing and satisfactory evidence that the gift was the voluntary and intelligent act of the donor. Coffey v. Sullivan, 63 N. J. Eq. 296. The failure to carry this burthen of proof brings the case directly within the doctrine laid down by Mr. Justice Reed in Haydock v. Haydock, 34 N. J. Eq. 570, as follows:

“I take the rule to be settled that where a person enfeebled in mind by disease or old age is so placed as to be likely to be subjected to the influence of another, and makes a voluntary disposition of property in favor of that person, the courts require proof of the fact that the donor understood the nature of the act, and that it was not done through the influence of the .donee. * * *

“The presumption against the validity of the gift is not limited to those instances where the relation of parent and child, guardian and ward, or husband and wife, exist, but in every instance where the relation between the donor and donee is one in which the latter has acquired a dominant position.”

And, furthermore, if it were necessary, the principle involved in Slack v. Rees, 66 N. J. Eq. 447, could be invoked. The rule of that case is pointed out in Post v. Hagan, 71 N. J. Eq. 234, as having specific application to cases in which the gift, if valid, has the effect of stripping .the donor of practically all of his property. Here the donor’s entire estate amounted to only $2,147.44 —the deposit in bank and a $1,000 government bond. For his support, he depended upon the gratuities of the complainant. The giving away, under such circumstances, of more than one-half of so small an estate, the whole of which was manifestly inadequate for the maintenance of the donor, raises, it seems to me, the presumption of improvidence as effectually as if the estate had been a large one, and the proportions of the gift had resulted in leaving tire same small residue.

“That a person,” said Mr. Justice Garrison, in Post v. Hagan, “already aged or infirm, or otherwise dependent, should give to the one upon whom he thus depends practically his whole living beyond recall, and at the very time when apparently he had most need to retain it, raises in tire mind of a chancellor the presumption that the donor may not have appreciated the irrevocable character of his act or that he did not foresee its legal consequences to himself. This presumption of apparent improvidence gives rise to the special rule followed in Slack v. Bees, which may be called the rule of independent advice. By force of this rule, if a person upon whom another has in fact come to be dependent Accepts a gift from such dependent person of all of his or her estate, a court of equity, moved by tire apparent improvidence of such a gift, casts upon the donee the burden of showing that the donor had the benefit of proper independent advice. Proper independent advice in this connection means that the donor had the preliminary benefit of conferring fully and privately upon the subject of his intended gift with a person who was not only competent to inform him correctly as to its legal effect, but who was furthermore so disassociated from the interests of the donee as to be in a position to advise with the donor impartially and confidently as to the consequences to himself of his proposed benefaction.”

That Joseph had not the benefit of independent advice is conceded, and that his relation to Elizabeth was one of trust and dependence, was not disputed.

The complainant is entitled to a decree. Costs will not be allowed against the defendant. Peer v. Peer, 11 N. J. Eq. 432.


text:
    Mary L. Tyndale et al., executrices, &c., v. Minnie Smith McLaughlin et al.
    [Submitted April 8th, 1915.
    Decided July 10th, 1915.]
    1. The jurisdiction of equity to construe a will can only be invoked when such construction involves some- equitable relief, and will not be exercised, in construing a will in respect to the devolution of title to real estate, where no equitable relief to such real estate is sought; but where the bill' claimed that certain property of the estate vested in complainants as heirs-at-law, the cross-bills of the answering defendants, some of the nephews and nieces, alleged that complainants had but a life interest in the property and that the remainder was in defendants or their survivors, that complainants in their capacity 'as trustees and life tenants through mismanagement had permitted some parts thereof to be sold for taxes and had conveyed other parts, and prayed that complainants be required to redeem, and that they account for the proceeds of the sales, and for their removal from office, remedied any defects in jurisdiction, since the facts set up and the relief prayed for were cognizable in equity.
    2. Under a will dealing with each piece of property singly, a paragraph, requesting the executors to hold the property, consisting of two separate lots, to keep it leased, and after paying taxes and expenses, to divide the balance between his two daughters, and that in case of either dying the buildings to be kept leased and the net income of the deceased should be divided, equally between testator’s nephews and nieces, and that at the decease of both daughters the property should be sold and the' proceeds divided equally between such nephews and nieces or their survivors, the nephews and nieces were not the residuary beneficiaries, and took nothing except the property mentioned in such paragraph, so that the daughters, as heirs-at-law or next of kin, were entitled to property, real and personal, not finally disposed of.

      3. In construing a will the testator’s intention must be gathered, either expressly or by implication, from within the four corners of the will.
    4. The court leans toward a construction of a will which will prevent intestacy, but the will must furnish the basis for such construction, and if the testator, through ignorance or inadvertence, fails to dispose of all his estate, the court cannot supply the omissions.
    5. Under a paragraph of a will, providing that part of a tract should be leased for twenty-one years, with a renewal of twenty-one years more, the net income to be divided equally between testator’s two daughters during their life and at their decease to their lawful heirs, the daughters, after they had passed the child-bearing period and when their nieces and nephews were their heirs presumptive, had an estate in the land for a term of years only, and did not take a fee under the rule in Shelley’s Gase that when the ancestor, by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance an estate is limited either mediately or immediately to his heirs in fee or in tail, “the heirs” are words of limitation of the estate and not words of purchase.
    6. Such paragraph did not carve out a trust estate in the daughters as executrices to last for forty-two years, the net income of which was to be paid them during their lifetime and upon their death and until the trust terminated to their heirs, as if the words “at their decease to their lawful heirs” related to the income and not to the corpus, but left the land to the executrices not to be sold for forty-two years in their lifetime, during which period they were to have the income, with remainder to their respective heirs-at-law as purchasers, the fact that the daughters survived the term of years created by the trust not altering the remainderman’s estate, but simply postponing its enjoyment; the daughters in the meantime having an estate for life by operation of. law.

      Mr. Atwood L. DeCoster and Mr. Harrison P. Lindabury, for the complainants.

      Mr. Samuel Craig Cowart and Messrs. McDermott & Enright, for the defendants.
   Backes, V. C.

The settlement of this controversy requires the construction of the last will and testament of Joseph West, deceased, late 'of the city of New York. It was executed four days before his death, and reads as follows:

(1) “First: I appoint my daughters Mary L. and Josephine * S. West executrix and Thomas West my nephew of Englishtown Monmouth Co. New Jersey Executor without giving any security for the same.
(2) I also direct my Executors to sell the house and four lots of ground where I now reside one half of the proceeds to be placed on Bond and Mortgage in the city of New York and the remainder to pay my debts and mortgage on the house 83 Amity St.
(3) I also authorize them to apply to the court to sell the house thirty seven Forsyth St. which half belonged to my late brother Thomas S. West and the income of said house that is his share, has been paid to my mother during her life. The proceeds of my late brothers half to be divided according to law. Also wish them to dispose of the farm in Macomb Co. Illinois which belonged to my late father Thomas West to be sold and 'the proceeds divided according to law I consenting to loose all the taxes which I have paid on said farm since my fathers death.
(4) I hereby authorize them to sell the gore of land corner of Plane and State Streets situated in Newark New Jersey occupied by a stone cutter and apply the proceeds to the payment of my debts and assessments. Also a gore of land in rear of the corner of State and Broad streets in the city of Newark New Jersey now leased for twenty one years — to be sold at any time they think best and the proceeds to be used for the same purpose as the one before mentioned. Also a tract or parcel of land situated in the city of Newark New Jersey running from Belleville Av. to Mount Prospect Av. containing nearly twelve acres of land. The whole front which is left after opening streets on Belleville Av. and to the depth of about one half of said ground to be leased by my Executors for twenty one years with a renewal of twenty .one years more. The nett income to be divided equally between my daughters Mary L. and Josephine S. West during their life separate and apart from their husbands— at their decease to their lawful heirs.
(5) The rear half on Prospect Av. to be sold and after paying taxes and assessments the balance to be invested on Bond and Mortgage.
(6) I wish my Executors to hold the property situated, one, forty five Fulton street, — the other eighty three Amith street in the city of New York now leased — to be kept leased or rented and after paying taxes and all other expenses the balance to be equally divided between my daughters Mary and Josephine S. West. In case of either dying the buildings to be kept leased or rented and the nett income of the deceased shall be divided equally between my nephews and nieces, Thomas West, Thomas Skidmore, Joseph Skidmore, Joseph W. — John—-William Christina and Mary Deacon Christina Stevens — Mary Frances — Sarah Elizabeth — Margaret Joseph and George West. At the decease of both daughters the property shall be sold, and the proceeds divided equally between the aforesaid nephews and nieces or the survivors.
(7) As soon as convenient I wish my Executors to pay my brother in law Frances Deacon two hundred dollars and my nephew Thomas West five hundred dollars for his services.
(8) All moneys advanced by me to Bartholomew McGowan I give him.
(9) I also wish my Executors to pay to each of the children of William and Mary C. Hays of Tuckahoe Westchester Co. — Harriet—-Ida—Sarah Lavinia — Fanny and Winfield Hays — when they arrive to the,, age of twenty-two years.”

In the above, the paragraphs and lines of the instrument are followed. The paragraphs have been numbered by me for convenience and ready reference.

The deceased died in 1871, leaving two daughters, the executrices, who.were then young women and unmarried, and also several nieces and nephews, some of whom are mentioned in the will. The executor named in the will did not qualify. The will was first proved in the county of New York, and was later admitted to probate in this state by the surrogate of Essex county. Of the twelve-acre tract in Newark, the rear half, fronting on Prospect street, has been sold by the executrices, while the remaining half, fronting on Belleville avenue, has been under lease by them, as directed, for more than forty-two years last past. By their bill, the complainants allege that as to the unsold half of the tract their father died intestate, and that it now vests in them as his lieirs-at-law, and they pray that the will be construed and that it be determined in whom the title is vested, and if it should be held that it is not in them as heirs-a,t-law, that the property be sold for the benefit of the persons, entitled thereto. The answering defendants, some of the nephews and nieces, filed cross-bills in which they set up that the complainants have but a life interest in the estate, and that the remainder is in the nephews and nieces, or their survivors, under the provisions of the will; that in their capacity as trustees and life tenants of the unsold half of the tract; the complainants, through mismanagement, have permitted some parts thereof to be sold for unpaid taxes, and that without legal right they conveyed other portions; and they pra.y that the complainants be compelled to redeem; that they account for the proceeds-of the sold portion of the tract, as well as of all of the rest of the personal property, and that they be removed from office and others be substituted.

If the cause stood on bill and answer only, the relief prayed by the complainants could not be granted, because of the familiar rule that the jurisdiction of this court to construe a will can only be invoked when such construction involves some equitable relief, and will not be exercised in construing a will in respect to the devolution of title to real estate where no equitable relief to such real estate is sought. Hoagland v. Cooper, 65 N. J. Eq. 407. But, the cross-bills remedy any defect in jurisdiction, for the facts they set up, and the relief they pray, are clearly cognizable in equity. Dan. Ch. Pl. & Pr. (6th Am. ed.) 1553; Story Eq. Pl. (10th ed.) 373; Pennsylvania Railroad Co. v. National Docks Co., 52 N. J. Eq. 555; Cathcart v. Robinson, 5 Pet. 264.

So, we may proceed to construe the will, which both the complainants and the defendants desire.

The first question to be considered is: Are the nephews and nieces the residuary beneficiaries under the will? For, if they are not, then the testator died intestate as to some of his estate. They claim to be such by virtue of the closing sentence of the sixth paragraph of the will,-which reads:

“At the decease of both daughters the property shall be sold and the proceeds divided equally between the aforesaid nephews and nieces or the survivors.”

This provision, in my opinion, is plainly referable and limited to the property mentioned in the paragraph of which it is a part. To give it any broader scope would do violence to the express intention of the testator. In the process of drafting his will, the testator seems to have dealt with each piece of land, or group, singly and individually, making provision for conversion and administration of each, but without giving much thought to finality of disposition. The proceeds of the Fulton and Amity street houses (the subject of the sixth paragraph) he intended should eventually go to certain of his nephews and nieces, but not until after the death of his daughters, each of whom was to enjoy one-half of the net rents during her lifetime; the nephews and nieces to take the deceased daughter’s share during the life of the survivor. For the carrying out of this, an active trust was created, confined to the two New York houses. These two buildings and tracts of land, although widely separated, are spoken of in the opening sentence of the paragraph as “the.property,” and it is this same “the property” which the closing sentence orders to be sold, after the termination of the trust, the proceeds of which is to be divided between the nephews and nieces. This paragraph, like all others of the will, is entirely inclusive. Furthermore, if we should assume, as the defendants contend, that the testator intended to give his daughters only a life right in the whole of his estate, this, in view of the fact that the will makes no direct and explicit disposition of the remainder, cannot be entertained to expand the provision under consideration into a residuary clause, for the very profound reason that at the time the will was made the testator’s daughters were of a marriageable age, likely to have offspring, and it would be a harsh and unthinkable assumption that he intended to prefer the collateral to his prospective lineal descendants.

It is also urged that because of the execution of the will, and the presumption therefrom that the testator intended to make a complete disposition of his property, the provision which is applicable only to the two New York properties, should at all events be seized upon to prevent intestacy. This, I apprehend, cannot be done. We might as well attempt to read into the will the amounts the testator intended to leave to the five persons named in the last section, as to impose upon it, as a residuary disposition, this wholly foreign clause. The testator’s intention must be gathered from within the four corners of his will. What he has there laid down, either expressly or by implication, the court construes, and the leaning will always be toward a construction to prevent intestacy. Leigh v. Savidge, 14 N. J. Eq. 124; Yawger v. Yawger, 37 N. J. Eq. 216; Carter v. Gray, 58 N. J. Eq. 411. But, the will must furnish the basis for the construction. If the testator, through ignorance, inattention or inadvertence, fails to dispose of all of his estate, it is not within the power of the court to supply the omissions. The province oO the court is to construe, not to make, wills.

The defendants take nothing under the sixth paragraph, except the property therein mentioned; and as to property, real and personal, not finally disposed of, the complainants are entitled as heirs-at-law or next of kin.

The next question presented is: Do the nephews and nieces take anything- of the unsold half of the twelve-acre tract in Newark, by virtue of the fourth paragraph, which the testator directed his executors to lease for twenty-one years, with a renewal of twenty-one years more?

“The nett income to be divided equally between my daughters Mary L. and Josephine S. West during their life separate and apart from their husbands — at their decease to their lawful heirs.”

The daughters are now above the age of sixty, and doubtless beyond the child-bearing period. The nephews and nieces are their heirs presumptive, who, as such, claim that they will take directly from the testator, as the persons designated to receive his bounty, at the termination of the life estate.

The contention of the complainants is that they are owners in fee under the rule in Shelley’s Case, but that cannot be, because the estate of the daughters in the land, whether we regard it as equitable, due to the interposition of trustees (Shugrue v. Long, 82 N. J. Law 717), or legal, because of a merger of the equitable into the legal estate (1 Perry Trusts (6th ed.) 570) is for a term of years only, and the rule is that only “when the ancestor, by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance an estate is limited either mediately or immediately to his heirs in fee or in tail; * * * the heirs are words of limitation of the estate and not words of purchase.” Shelley’s Case, 1 Coke 104a; 76 English Reprint 234; Daniel v. Whartenby, 17 Wall. 639.

The next claim which they press is that the testator, by implication, at least, carved out a trust estate in the executors, to last for forty-two years, the net income of which, and only that, was to be paid to the two daughters during their lifetime, and upon their death and until the trust terminated, to their heirs, and that inasmuch as no provision was made to cover the remainder, after the trust ceased, the testator, as to it, died intestate; the point being that “at their decease to their lawful heirs” relates to the income and not to the corpus. The text, it is true, permits this interpretation, but, it seems to me, that taking into consideration the object of the testator and the subject-matter of the gift, the quoted words were intended to have a wider significance. The view I indulge of this devise is that the land was to lie held by the executors and not to be sold for forty-two years, in the lifetime of the daughters, during which period they were to have the income. At their death, in that time, or thereafter, the fee was to vest in their respective heirs-at-law as purchasers —now, presumably, the defendants. The fact that the complainants have survived the term of years created by the trust does not alter the defendants’ estate; it simply postpones the enjoyment — in the meantime, an estate for life is in the complainants, by operation of law. The reason for the rule of construction applied by the court of errors and appeals in the case of Shugrue v. Long, supra, is relevant. There the question was whether “heirs,” so used as to ordinarily bring into operation the rule in the Shelley Case, had that effect, if it appeared that the testator did not use it according to its technical meaning. And after giving instances and illustrating under what circumstances that term annexed to an estate for life or other freehold will be regarded as of limitation or of purchase, Judge White, speaking for the court, said:

“While, therefore, it is well settled that the rule in Shelley’s Case is absolutely and peremptorily controlling as ‘a rule of property’ whenever it appears that the limitation over is to the ‘heirs,’ taking as such ‘heirs,’ of the life tenant, quite irrespective of the desire or direction of the testator that the first taker should take only a life estate (Lippincott v. Davis, 59 N. J. Law 241), nevertheless, if it appears that the testator did not use the word ‘heirs’ in this, its technical sense, but, on the contrary, used it as a mere descriptio perrsonwum of the objects of his, the testator’s own direct bounty, the rule has no application whatsoever. Harg. Law Tr. 574, 576; Fearne Rem. 188.

“What will indicate such use by the testator of the word ‘heirs’ in the latter and popular, as distinguished from its technical sense, must necessarily vary in different cases.”

“Another indication established by text-writers and decisions of a use by a testator of the word ‘heirs’ as a word of purchase, and not as a word of limitation, occurs where the life estate is only an equitable estate and the remainder is a legal estate. Thus, where property is devised under an active trust for the benefit of a life tenant and then the legal estate is devised at the death of the life tenant direct to his heirs, the word ‘heirs’ cannot be taken to have been used to indicate a succession or inheritance of the legal estate from the life tenant, because the life tenant never held the legal estate.”

The case in hand only furnishes an additional example for the application of this doctrine. Here, of course, we have no battle with the rule in Shelley’s Case, because the testator devised the lands in trust for a term of years. The devise over to the “lawful heirs” could not, therefore, .in law, effect an estate in fee in the ancestor. From this it is to be concluded that the testator could not have employed" the terms according to their technical meaning; and it follows that the only reasonable construction to be given to their use is that he intended thereby to nominate as takers of his estate, after the death of his daughters, those who stood in the relation of heirs-at-law to them. As such, the defendants, nephews and nieces, are now entitled to be protected against waste of. their prospective inheritance.


text:
    Edmund H. Reeves, administrator, &c., v. Ida J. White et al.
    [Submitted April 29th, 1915.
    Decided July 17th, 1915.]
    1. Where an assignment of leases was recorded and the recorded inr strument delivered to the donee, there was a completed gift, notwithstanding the donor did not originally intend the gift to take effect until his death.
    2. A gift of his property and business by an aged man,' afflicted with fatal illness and unable to earn a living except through the business, to the wife of his adopted son, will not be upheld where the donor impoverished himself, unless he took independent advice; for, though the donor was in possession of his faculties and knew his own mind, the -donee, who was in the prime of life and to whom he owed a great debt of gratitude for her loving care, occupied the dominant position.
    3. Where an aged man, afflicted with fatal illness, gave all of his property to the wife of his adopted son, the fact that the scrivener who prepared the conveyance called to his attention that it would take effect during his life is not independent advice, it being apparent that the donor, who mistrusted the donee’s husband, did not realize that in case of her death before him the husband would take the property.
    4. Where a court of equity set aside, as improvident, a gift by an aged man to the wife of his adopted son, and the next of kin of the deceased took the property, they will be compelled to do equity and to compensate the donee for her care of the deceased and as well to pay a mortgage on the property, which she had discharged.

      Mr. William C. French and Messrs. Bergen & Richman, for the complainants.

      Mr. Edmund Wilson and Mr. J. Otto Rhome, for the defendants.
   Backes, V. C.

The object of this bill is to set aside a gift inter vivos on the ground of improvidence. Joseph White died at the age of seventy-six. Two years before, on October 5th, 1909, he assigned to Ida J. White three leases of lands upon which the “Hotel Spray View” in Ocean Grove stands. At the same time he executed to her a bill of sale of the furniture in the hotel, conveyed to her his real estate in Florida, and transferred into their joint names his bank account. He, in fact, gave her all he possessed.

The bill is filed to set aside the assignment of the leases only; and in avoidance it sets up confidential relation, dependence and want of competent and independent advice. Fraud is not charged. The defence alleged is that the assignment was made in consideration of many years of services rendered, and pursuant to a promise to thus compensate; and that the donor had independent advice.

If the assignment was in fact the fulfillment of such an agreement, there was no proof of, nor any attempt made to establish, the contract — perhaps due to the incapacity of the donee as a witness, and an inability to supply it from other sources. . From all that appears, the donee rendered the services in, .and as a member of, the donor’s, household, from which alone, the law does not impfy a promise to compensate. Disbrow v. Durand, 54 N. J. Law 343. The assignment can only be upheld, if at all, as a gift, for it is manifest that it was a bounty, and that the donor was actuated by motives of affection and gratitude, and a desire to remunerate.

Ida J. White, the donee, is the wife of the conventionally— not legally — adopted son of Joseph White, the donor. He was taken when an infant, and lived with his adopted parents until they died. When he married, his wife, and afterwards a daughter born to them, now sixteen years of age, became members of the donor’s household. White ran the hotel; the son acted as an under-steward and his wife assisted generally. In 1906 the donor’s wife died and from that time on, at least, the donee assumed the duties of housekeeper and in every way possible cooperated with the donor in conducting the hotel. Up to the day of his death the. donor purchased the supplies for the hotel and attended to the finances. Age and physical ailments had not perceptibly impaired his mental faculties. He was strong of will and sturdy of character. Physically, he suffered from artori or sclerosis and angina pectoris, and from 1906 on his condition was precarious, in the sense that during seizures he was liable to die and in fact he dropped dead on the highway. The spells were frequent — weekly and oftener — and due to them and age, his vital forces gradually lessened. During this time it was not safe for him to be alone; he was the constant care of the donee. He died childless, leaving nephews and nieces, or their descendants — forty-one in all — as his next of kin.

On October 4th, 1909, Mr. White directed his real estate agent to draw the assignment of the leases and a bill of sale for the furniture, stating that he wanted to give all of his real estate and personal property to the donee. The next day he called, executed the documents and took them away. In May of 1911 he brought them back, with the request to have the assignment recorded in the county clerk’s office, and approved by the Ocean Grove Association. After the assignment was recorded and approved, the agent returned it to Mr. White, who, in, his presence handed it to the donee, saying, “Here, Ida, here’s the deed for this property; now take it and take-care of it.”

There is considerable controversy in the arguments — not much in the proofs — as to whether the assignment had been delivered, and delivered with donative purpose. Upon this, there' was no issue raised by the pleadings, and indeed the frame of the bill assumes both factors to be present, but as it goes to the very root of the donee’s right, it is to be regarded as within the general scope of the cause.

That there was a manual tradition of the document is established. Mr. White was told at the time it was drawn that an actual physical delivery of the paper was necessary in order to make the gift legal. The daughter of the donee, although then only eleven years of age, says that about that time she saw her grandpa give the assignment and bill of sale to her mother. Mr. White declared in 1910 to at least a half-dozen of the witnesses, in effect, that he had given or deeded the property to his daughter Ida, and wo have the real estate agent’s description of a confirmatory delivery in May, 1911.

The testimony leaves no room to doubt an actual handing over.

Whether there was a delivery with intent to clivest the title, is debatable. The language of the deed and its formal presentation would, indeed, import a complete donation. But Mr. White had planned to have the gift operate testamentarily. At the time he gave instructions for the assignment and was told that it had to be delivered to be effectual, ho inquired of the agent whether his daughter Ida could get the benefit of it at his death if he executed it and laid it away in his safe until that time. lie evidently followed, in form, the advice, and made delivery, but evaded its subtsance. I-Ie may have understood, or probably reasoned, that although a formal delivery was essential to a gift, it was only so as a necessary step in making it effective at his death. Ho did not at that time,- it is quite certain, intend to surrender his dominion. He hired a safe-deposit box in the name of the donee and himself, to which each had access. From this box the bill of sale, enclosed in an envelope, was taken after this suit was brought. This envelope is the same in which the real estate agent enclosed the assignment and the bill of sale immediately after they were executed, and gave to Mr. White. It is a fair .inference that the assignment was in the envelope when it was first put in the safe-deposit box. On the envelope is inscribed in the donor’s handwriting: “5 day of October 1909, for Ida J. White.” This superscription — in the prospective; keeping control of the documents; the frequent expressions of the donor to numerous witnesses that he had given his estate to his daughter, so that she would have it at his death, and the fact that he thereafter used the hotel property as his own, and therein carried on the hotel business, as before, all confirm the conclusion that Mr. White initially did not intend to, and in fact did not, part with his ownership. But, this interpretation of his conduct, as bearing upon his intent, loses its importance, because, it appears clearly and satisfactorily that in May, 1911, that which was theretofore left undone was consummated. The recording of the deed and its rcdelivery to the donee are persuasive and cogent proof of his intention then to vest the title absolutely in the donee. The recording of the assignment was a public declaration of his purpose to irrevocably part with, the hotel. The delivery of the deed completed the gift.

The next inquiry is — can this gift be upheld in the face of the rule of independent advice? The donor was aged, afflicted with a fatal illness, and unable to earn a living in any capacity outside of his established business. The donee was a young woman thirty-nine years of age, who had faithfully devoted the best years of her life to him and his wife and in his affairs. For her, he very naturally had unbounded affection. His gratitude was of the deepest. In her he reposed great confidence, and as age advanced and his physical ailments became more aggravated, his dependence upon her increased. In these circumstances’he gave to her all that he had — stripped himself. While the law does not forbid to the aged the right to thus voluntarily change from a condition of affluence to one of poverty, yet it nevertheless jealously guards such action of the old and infirm, where a relation of trust and confidence exists, and before it gives sanction to such a gift, demands that it be shown that the donor fully comprehended its legal, as well as its practical, effect. This case is absolutely free of fraud and of undue influence. The mind of the donor was strong, his daily conduct normal, and the gift was well earned. All of these features are not to be found in any of the cases I have examined, where the rule lias been applied to the class of confidential relations to which’ the present one belongs. The most conspicuous distinction is that in those cases the conveyances were pure gifts, while here the gift was by way of compensation. I have anxiously, but vainly, sought to, on authority, differentiate on these grounds collectively, for I confess my sympathies are entirely with the donee, but am forced to the conclusion that the application of the rule is inexorable whenever apparent improvidence calls it into play. It is the settled policy of this state, whatever it may be elsewhere, that whenever a relation of trust and confidence exists, and the inequality favors the donee, whether that inequality be inferred from the legally recognized relationships or is established by proof of actual dominance or of dependence, and where the case is free from fraud and undue influence, a gift of the whole (or the bulk if it results in impoverishment) of the donor’s estate will not be sustained, unless it clearly appears that he well understood the effect and consequences of his act; and the indispensable evidence of this understanding is that he had competent and independent advice.

In Slack v. Rees, 66 N. J. Eq. 447, Chief-Justice Gummere says of the rule:

“Its purpose is not so much to afford protection to the donor against the consequences of undue influence exercised over him by the donee as it is to afford him protection against the consequences of voluntary action on his*part, induced by the existence of the relationship between them, the effect of which, upon his own interests, he may only partially understand or appreciate.” *

In Post v. Hagan, 71 N. J. Eq. 234, Mr. Justice Garrison says:

“That a person already aged or infirm or otherwise dependent should give to the one upon whom he thus depends practically his whole living beyond recall, and at the very time when apparently he had most need to retain it, raises, in the mind of a chancellor the presumption that the donor may not have appreciated the irrevocable character of his act or that he did not foresee its legal consequences to himself. This presumption of apparent improvidence gives rise to the special rule followed in Slack v. Rees which may be called the rule of independent advice. By force of this rule, if a person upon whom another has in fact come to be dependent accepts a gift from such dependent person of all of his or her estate, a court of equity, moved by the apparent improvidence of such a gift, casts upon the donee the burden of showing that the donor had the benefit of proper independent advice. Proper independent advice in this connection means that the donor had the preliminary benefit of conferring fully and privately upon the subject of his intended gift with a person who was not only competent to inform him correctly as to its legal effect, but who was furthermore so disassociated from the interests of the donee as to be in a position to- advise with the donor impartially and confidently as to the consequences to himself of his proposed benefaction.”

The defendants’ counsel urges that the donor had not surrendered the dominant position and that, therefore, the rule lacks application. But, it seems to me that the donee’s ascendency is a necessary inference from the condition of dependence, which manifestly existed. The refusal of the court to apply the doctrine in the case of James v. Aller, 68 N. J. Eq. 666, to which I have been referred, is not relevant. There, the donor, although he gave all of his property to his children, was in the prime of life and was steadily earning from one to three hundred dollars a month, which caused the chief-justice to remark, that “It may well be doubted whether a man in such a situation necessarily acts improvidently in giving to his children the property which he has then accumulated,” and-he held upon the facts of the case that the father of the family occupied the dominant position.

It is next contended that the gift should not go down because the donor had in fact competent and independent advice. The real estate agent gave the only testimony on this point. When Mr. White called to have the assignment and bill of sale drawn, he asked him whether he was going to give away all of his property, to which White replied that that was his desire and just what he wanted to do. And later, upon the same occasion,' the witness suggested, “You understand, Mr. White, that you are conveying the ‘Spray View Hotel’ and contents to Ida J. White, and once you convey it, it is out of your hands,” to which he answered, “I understand that thoroughly and that is my desire and wish absolutely.” He also told Mr. White, “He was stripping himself of everything that he possessed in Ocean Grove.” This witness was very active in the defence of the suit, and his testimony may be slightly colored, but giving it full credence, it amounts to no more than that he brought to Mr. White’s attention the effect in law of the proposed transfers. His advice was not sought, and whatever information he imparted did not meet the standard of “advice” fixed in cases of this kind. The donor was single-minded; he looked no further ahead than providing for his daughter-in-law, and through her for his adopted son, and their child, after his death. He, of course, trusted her implicitly and felt that he and his property were safe in her hands; but, did he stop to think, and was he advised of the possible dire consequences to him if the daughter died ill his lifetime ? Did he realize that his adopted son, whose intemperate habits had caused him much distress, and in whom he had no confidence, would then be in control of his fortune, and that upon this irresponsible he would be reliant for subsistence? Or, did it occur to him that the discharge of duty of a guardian for the infant granddaughter, if she inherited, would sweep from him all means of support ? I cannot conceive that he did. The assignment must be declared invalid.

The next of kin, many of whom perhaps the donor never saw and some of whom he probably never heard of, and whose claim to the estate rests solely upon the fact that a strain of his blood courses through their veins, will not, however, be permitted to have the benefit of a decree without doing substantial justice, or as nearly so as this court can compel them to do. They, through their representative, are here seeking equity and they will be compelled to do equity.

“The court of equity refuses its aid to give to the plaintiff what the law would give him if the courts of common law had jurisdiction to enforce it, without imposing- upon him conditions which the court considers he ought to comply with, although the subject of the condition should be one which the court would not otherwise enforce.” Pom. Eq. Jur. § 385.

A refusal to invoke this wholesome and beneficial principle would be deplorable, and to permit the next of kin to escape with this large estate, without requiting the defendant; to send her away empty-handed and unremunerated for her many years of labor and toil — to be stranded in her old days — would shock the conscience and every sense of decency and propriety. The error of the donor should not stand in the way of giving the donee her just dues, the estimate of which he fixed by his gift. She is entitled to be compensated, and fully and amply, and in the measuring scales should be thrown, until they bear down heavily, the love and affection which inspired her, and which she bountifully bestowed, during the years she sacrificed in the care of this old man and his wife. The financial standing of the donor and his appraisal of the donee’s attentions and solicitude must also be considered. What she ought to have, I will fix upon further hearing; or, if both parties desire, they may take a feigned issue to a jury for an advisory verdict.

It appears that before this bill was filed the defendant paid off a $3,000 mortgage on the hotel. This money the complainants will have to restore.

Costs will not be allowed. Peer v. Peer, 11 N. J. Eq. 432.


text:
    Sarah F. Mount v. John Addison Chamberlin et al.
    [Submitted May 7th, 1915.
    Decided July 20th, 1915.]
    1. Where a husband, who was indebted, made deposits in the name of his wife, and on her death she left her property to him in the form of a spendthrift trust, he has the burden, as against his creditors, of proving his defence that such moneys were not his, but belonged to the wife.
    2. In a suit by a husband’s creditors to establish their claims in property devised and bequeathed to him by his wife, which had been acquired with moneys deposited by the husband in the name of his wife, evidence Held to show that the moneys belonged to the husband.

      Mr. Aaron V. Dawes, for the complainant.

      Mr. Richard M. J. Smith, for the defendants.
   Backes, V. C.

This is a creditor’s bill to recover equitable assets. Lavinia Chamberlin, the wife of the judgment debtor, John Addison Chamberlin, died in 1910, leaving an estate of less than twenty thousand dollars, which by her will she gave

“To my said husband, John A. Chamberlin, and Howard Dehoney, of the City of Philadelphia, Physician and their heirs in trust to collect the rents and income, pay all proper and all necessary charges and expenses, and to pay the net income thereof to my said husband, for and during-the term of his natural life, yet so nevertheless that the said principal and the income thereof shall be clear and free of all his debts and engagements both present and future and without liability to attachment or execution process of any kind by" his creditors and shall not pass by any assignment in insolvency or by virtue of any Act of Bankruptcy.”

At the death of Chamberlin the estate is to go to his appointees by will. Upon failure to appoint, the net income is to go to his mother for life and thereafter one-half to a nephew for life, who is to be succeeded by his children absolutely, and the remaining half to relatives mentioned. The estate, or at least sufficient to pay the complainant her judgments, it is charged, was created out of the earnings of Chamberlin while he owed the complainant, and the bill seeks to reach these assets. Chamberlin failed in business in Hightstown in the fall of 1887. In 1893 he left Hightstown for Asbury Park and the following year went to Philadelphia and remained until 1902, during which period he made and accumulated considerable money as a tract and book agent. Of this he made deposits in the name of his wife in the First National Bank of Hightstown and the Farmers’ National Bank of Allentown, N. J., by checks of his employers made out to him and endorsed to his wife, aggregating $6,824.03. The deposits were made by mail and were accompanied by letters of advice from Chamberlin, many of which are before me. These moneys were invested in bonds and mortgages in the name of the wife and in building houses upon lands, the title to which stood in her name. The estate must respond to the complainant unless the defence is made out that the cheeks so deposited belonged to Mrs. Chamberlin, and the burthen of this is on the defendants. The defence is supported by the testimony of Chamberlin only. He says he went to Philadelphia penniless. During the first two years his business was not a success, and he borrowed $2,000 from his wife to carry him through. The next three years he was employed by another concern, where he made considerable money. The following year, with another company, he made none, but the succeeding two years he made some, when his healtli broke down and he returned to Hightstown and retired. The $2,000 he says he paid back by sending, from time to time, deposits to the banks to the credit of his wife equal to that sum, and that the remaining checks were cashed by her and forwarded by him to the banks as her agent. He characterized her. as his banker. He asserts that when they went to Philadelphia she had $7,000 in a bag or bags sewed on the inside of her dress, which she used to finance him. Three thousand dollars of this he claims she received from relatives of the family as wedding gifts when they were married in 1879, which for-fourteen years she kept about the house because she distrusted banks. One thousand dollars she received from the sale of a trust bond given to her by her husband’s mother, who, if she gave it, was left absolutely .penniless; and the remaining $3,000 was derived from the sales of building lots, buildings, machinery and household furniture. The money was thus carried around for years, he declares. That’s the. story. Let us analyze and reflect and then digest it, if possible. Mrs. Chamberlin, according to her husband’s statement, was trim of figure and neat in dress, and if she carried the bags of money on her person she must have had a very clever dressmaker to preserve symmetrical proportions, or else there .was an occasional bulge, for the hoop skirt' or the “Grecian bend” and the bustle were not then in vogue. In May of 1892, when Mrs. Chamberlin was supposed to have $3,000 in the house, she opened a bank account with the First National Bank of Hightstown with a deposit of $250. The deposits thereafter were all small until she sold the canning factory building, of which mention is hereafter made, for $500, which she deposited in April, 1893. By that time she evidently had been weaned over to the banks, and the thought suggests itself — if she had the $3,000 in the house, why weren’t they deposited or invested? The first year she opened the bank account she had two notes, one for $10.74 and another for $100, discounted. Is it likely that she would borrow money and pay interest when she had ready cash on hand? As Chamberlin prospered, his wife’s bank account fattened. Investments upon bonds and mortgages were made out of the deposits from time to time as the bank balances would warrant. TYhat, curiosity prompts one to ask, caused Mrs. Chamberlin to change her financial methods about this time and. seek investments for her money, when, as we are told, up until the time she took the $7,000 to Philadelphia, she was so fearsome of banking institutions and all forms of securities that she preferred to forego the increments rather than hazard the principal ? During the time we are asked to believe she carried this large sum of money, she had outstanding mortgages on real estate in her name, the interest of which she paid. It also troubles me to understand why Chamberlin didn’t cash the checks, which he says his wife cashed, at the local banks on which they were drawn. It would have been much easier and convenient for him and less troublesome to his wife. And it seemed that when Mrs. Chamberlin finally got her nerves under control and her trust in banks firmly established, her husband suddenly went bank shy. He feared his creditors, and for that reason, we are informed, he had his wife act as his “banker,” and his accumulations of $4,000 which he saj^s he brought back to Hightstown in 1902 when he retired from business, he kept in a grip in the house until it was spent. The most remarkable thing about this tale is that it should ever have been told in the expectation that it would be accepted and believed. But I suppose it is the best that could be invented under the circumstances. It is weighed down by fiction and falsehoods, and is crushed by its inherent improbability and absurdity, and must be rejected. This is not a case of “hiding behind a woman’s skirts,” but truly one of hiding within.

I have not the slightest doubt that the will of Lavinia was the handiwork of Chamberlin. It was executed when he was at the height of his prosperity, while his wife was in good health, and was obviously drafted to protect him against his creditors.

The bill also charges that certain lands in Hightstown standing in the name of Mrs. Chamberlin were held in 'trust by her for her husband, and prays that it be so declared. It is not necessary to pass upon this issue, because enough may be recovered to pay the complainant out of the funds already discovered. But the transaction is of interest as showing Chamberlin’s general scheme to evade his creditors, of fídrich the money transactions above related are only a part. Chamberlin and one Hutchinson were engaged as partners in conducting a hay press and canning factory. A disastrous fire caused their failure in 1887. His mother held a mortgage of $3,500 on his homestead and land on which the canning factory stood. The firm also owed her $2,000. Upon a confessed judgment all of the personal property; and under foreclosure of the mortgage all the real property, was sold and bought in by the mother. She then borrowed on mortgage $3,500, and gave another of $1,750 to the First National Bank of Hightstown in substitution of one of a like amount, which had been barred by her suit. The mother carried on the canning business for one year but lost money and made a failure of the undertaking, and, in the language of the answer:

“Owing to her failure in the canning- undertaking and the loss of much money thereby, the old lady, Phoebe A. Chamberlin, became despondent and disgusted, and sought to get rid of the whole property, both real and personal; the wife of this defendant, Lavinia Chamberlin, being a young woman of about thirty years of age it was to her that the old lady went with her troubles and offered to give her title to everything if she would assume the claims against them and take care of her in her declining years.”

Claims against the property were the two mortgages, $3,500 and $1,750.

“The wife had some money but she did not wish to take any chances; she was afraid of everything and everybody. She was high spirited and a proud person and felt the failure of her husband keenly. She averred she would not take the property, no one should have her money, not even the banks, and that she would move away from Hightstown. In time, however, probably through the persuasion of Attorney Schanck, she was induced to accept the transfer of all the personal and real property from Phoebe A. Chamberlin, which took place on September 16th, 1889.”

This old lady accordingly, as her son relates, not only passed over this valuable property but also gave to her daughter-in-law the furniture she received under her exemption from her husband’s estate and a $1,000 trust bond, which was converted into money, and formed part of the $7,000 secreted by the wife upon her person. To make the $7,000 story hold together, Chamberlin had to actually strip his mother of every penny she had and leave her homeless and dependent for the rest of her life. Immediate]]' after getting title to the homestead property, Chamberlin’s wife laid out about twenty acres into building lots, and at a. public sale realized $6,500, which after paying off the bank mortgage of $1,750 and $2,000 of the $3,500 mortgage and all expenses, netted her $1,100, and this sum fitted to a nicety in rounding out the $7,000 “bag money.” Upon the remaining land of the homestead property Mrs. Chamberlin afterwards, in 1899 and 1904, built two houses costing $1,400 and $2,000 respectively — sums obtained from the fund created by Chamberlin. The homestead is a part of the estate left by Lavinia. This history comes from the mouth of Chamberlin, and it is as unworthy of credit as his testimony with reference to his savings is unbelievable. It is pregnant with cunning contrivance and artful manoeuvring to circumvent creditors, and the wonder is that it was not long ago uncovered. Laches is not set up as a' defence and probably could not have been maintained, if pleaded.

The investments of Mrs. Chamberlin’s estate, now held by the trustee, made from the deposits of Chamberlin’s earnings, consist of $6,400 in mortgages. Upon these the complainant’s debts will be impressed, and also on the land to the value of $3,400, the cost of the two houses built with Chamberlin’s money, if necessary.

The complainant may have a decree, with costs.


text:
    Clara D. Hague v. Henry W. Hague.
    [Decided July 23d, 1915.]
    1. Evidence Held insufficient to show that defendant willfully deserted petitioner, and that the desertion was willful and obstinate and continued for two years.

      2. Intemperance and drunkenness is no justification for a wife deserting lier husband, and it does not amount to a constructive desertion' on his part.
    3. That a husband was inattentive to his wife, left her alone on holidays and during the evenings, is no ground for her deserting him, such conduct not constituting a constructive desertion.
    4. That a husband failed to support his wife does not justify her in leaving him, for she has her remedy under the Divorce act. 2 Gomp. Stat. 1910 p. 2088 § 26.
    5. In a suit for divorce, the husband is a competent witness on behalf of his wife.
    6. Where petitioner’s husband, who had been living apart from her, was called to testify in her suit for divorce, and he admitted he did not propose to again live with his wife, his testimony is to be jealously scrutinized.
    7. Where petitioner wrongfully deserted her husband, the fact that, though he lived within a short distance of her, he made no effort to have her return does not show an intention on his part to desert her from the beginning.
    'S. To entitle petitioner to a divorce her testimony as to the desertion of her husband must be corroborated, and corroboration of the fact of separation and the husband’s non-support is, insufficient.

      Mr. J. Harry Hull, for the petitioner.
   Backes, V. C.

This is an undefended action for divorce on the ground of desertion. The master, to whom it was referred, advised a decree, and his.report came before me for approval during last summer’s vacation of Advisory Master Biddle, who has charge of undefended divorce cases. The report was not approved because the petitioner’s testimony failed to show willful, continued and obstinate desertion; her evidence was uncorroborated, and also if she intended to rely upon a constructive desertion, the justifying facts and circumstances of her leaving should have been pleaded. Smithkin v. Smithkim,, 62 N. J. Eq. 161. At the request of counsel, the cause was re-referred to the master for further proof. The only witness called was the husband, whose testimony did not aid the petitioner’s cause, and a divorce was denied' and a decree of dismissal entered. From this decree an appeal has been taken, and I have been requested to give my reasons for denying the petitioner relief.

The petition alleges that the parties were married November 20th, 1909, and that in the month of December, 1911, the defendant deserted the petitioner, and that the desertion was willful, continued and obstinate for two years next before the commencement of the suit, February 27th, 1914. These facts may be gathered from the petitioner’s testimony: After the marriage the couple lived with the petitioner’s parents in Glen Ridge for three months. They then kept house on Washington street, in the same town; from there they went to Caldwell Cedars; thence to “The Sign of the Hammer,” a hotel on Bloomfield avenue, Montclair, where they lived in December, 1910, when the petitioner left the defendant and returned to her father’s home, where she has ever since stayed. Her husband wrote her a letter asking her to return and make up with him, which she did not answer, and after a few days he left the apartment and went to his mother’s home. The petitioner says she left him “simply because his conduct was unbearable.” She gives these specifications of his conduct: He drank to excess; he was nagging and abusive (how or when she does not say); he was delinquent at meal times; he repeatedly pretended drunkenness on approaching home to make her unhappy; he locked himself in his room and told her he was going to take his life; they were frequently without means of support; they were behind in the payment of their bills; their desperate financial condition compelled them to move from one town to another; her husband’s family insisted in a “brutal way” that she take employment at “The Sign of the Hammer;” her husband did not support her at all; she was obliged to earn her own living and contribute to his support; when they were first married, her husband came home early one afternoon and went skating and spent the evening, while she was at work; he repeated this upon two other occasions; he frequently went out in the evening and didn’t return until two o’clock iq, the morning, when he told her his experiences and acted as if he were demented; he told her that he had lost his love for her; the bills were piling up and unpaid, and his conduct with regard to drinking was getting worse; she became fearful for herself and for him, and because of this she made up her mind that she had better leave him. On two holidays lie left her alone without explanation; he left her alone night after night, and she'stood it as long as she could, and finally left, “because his drinking habits were getting worse, and he had told me he did not care about me, and I decided I had better leave him.” They did not see each other again to speak to until October of the following year, when she called him on the phone, and made an appointment with him, which he kept. She asked him whether he was willing to let by-gones be by-gones, to which he replied that he did not know what he was going to do about it, and asked her to meet him in New York. Between that time and the following New Year’s they met a number of times in New York; went to theatres and stayed over night at hotels. She suggested that they resume cohabitation in a furnished room in that city, to which he agreed, saying, it was the proper thing to do. But, she says, he wanted to do it but didn’t want to do it as she did; he would not bind himself; he did not want to tell the family; he wanted to do it in an underhand way; he seemed anxious to start a home again and looked up furnished rooms. Their plans did not materialize and matters continued until, as the witness says, she made up her mind that it was not her husband’s idea to make a home for her; that he just wanted her for one purpose, and that was all, and so she left him. She says it came over her by degrees that she should do this. Their last meeting was between December 25th and New Year’s Day of 1911, when they went to dinner and theatre. She says she concluded not to continue things in that way and told her husband that she was not willing to go with him to a hotel in that manner, when he was unwiLling to furnish a home. After trying to persuade her to change her mind, he escorted her to the “Settlement House,” where they bade each other good-night in a friendly way, and separated. She has not seen him since, nor has he sought communication with her, although'they have lived in the same town within a few blocks of each other. I have purposely excerpted her story from the depositions, because every expression is essential toiler case.

Her brother-in-law, Brown, testified that since 1911 he has seen the defendant at his place of business in-New York, and on Decoration, 1914-, playing a tennis tournament, and that he was without physical disability; that during the last two or three years he lias seen him in the town and at the club, and that their only conversation was courtesies of the day; although the defendant had opportunities, he never talked with the witness about his wife or inquired for her, or spoke to him of their situation, and he never sought the witness to bring the two together. He says he knows that the petitioner has practically supported herself since the marriage, and only from what she told him does he know of their financial difficulty. Upon the re-reference the husband was called. He admitted that he had not lived with his wife since December of 1910; that during two years past he had not supported her, nor asked her to return to him, nor- offered to provide her with a home; and, on cross-examination by the master, said: “I suppose it is true I have lost my love for my wife, naturally. I suppose the desertion is intentional in a certain way, for a great many reasons. I do not propose to live with her.” He also admitted having taken her to theatres and hotels in New York, as the petitioner related, and that she had spoken to him about beginning a home again in a furnished room, and that he told her that he would not say anything to the family at that time, as to what they were going to do.

Now, the testimony of the petitioner fax from shows a willful desertion of her by tire defendant. She, in fact, deserted him. The grounds upon which she bases her reasons for leaving him —intemperance, inattentions and failure to support — are not such as to justify the separation on her part, amounting to a constructive desertion on the part of the husband. Intemperance is not. Foote v. Foote, 61 Atl. Rep. 90; 14 Cyc. 611. Failure to support is not. In Palmer v. Palmer, 22 N. J. Eq. 88, it was laid down by the chancellor that “there is no rule that makes want of sufficient support by a husband, or total want of support, a desertion of his wife. It is no cause for divorce, and this court cannot, by construction, convert it into a ground of divorce by calling it desertion.” Skean v. Skean, 33 N. J. Eq. 148; Rogers v. Rogers, 81 N. J. Eq. 479. For such an affliction the wife has a remedy under section 26 of tlic Divorce act (Comp. Stat. p. 2038) for maintenance and support. Her evidence does not show an intent upon the part of the husband to desert her; quite to the contrary. His letter to her, after she left him in December, 1910, shows clearly his dissatisfaction of her course and a desire for her return. "When she again deserted him in December, 1911, what was his mental attitude towards her? He was anxious and willing that they should live together as husband and wife; but she was not, because he was tardy in his preparation and disinclined to make the reunion public at that time and also becaxrse she had lost faith in his honesty of intention to provide a home and support her. He expostulated when she threatened to leave. From this situation it is impossible to deduce an intention upon his part to then desert her. Her testimony shows that he was oppositely minded. And, is there anything in the case to show that within the next two months he changed his mind or that he did even after the commencement of this action? I fix two months, because the petition was filed in less than two years and two months from the alleged desertion. None, unless the testimony of the husband may be so interpreted. He was a competent witness in her behalf. Schaab v. Schaab, 66 N. J. Eq. 334. He is evidently indifferent as to the outcome of these proceedings, .for he permitted the cause to go undefended — perhaps clue to a willingness now that the marriage-tie be severed. He was drafted to help out a desperate situation, and, under the circumstances, his testimony is to be regarded with suspicion and carefully and jealously scrutinized before giving it credence. He says that he does not propose to live with his wife. In this he speaks of the then present and future. He was not asked when he had formed this intention, and it, of course, cannot be assumed to relate back to the date of the alleged desertion, for it clearly appears that he then wanted to live with her. IVhat he meant in stating that he supposed “the desertion is intentional in a certain way, for a great many reasons,” he was not called upon to explain, and if he had, I surmise he would have qualified by saying that but for his wife’s desertion of him he would not bo living in a state of separation. And, again, when was the intention to desert formed, if there was such an intention? If within two years of the filing of the petition, then the cause had not ripened; if before the two years, the evidence does not establish it. The fact that the defendant, though living within a short distance of his wife, did not extend any effort to have her return to him, considering the manner in which she brought about the separation, cannot be regarded as indicating an intent on his part to desert her from the beginning. This fact does not bring the ease within the doctrine of Alward v. Alward, 65 N. J. Eq. 28; Foote v. Foote, 71 N. J. Eq. 273; Thomas v. Thomas, 74 Atl. Rep. 125, in which the facts justified the inference of an intention to abandon. The petitioner’s evidence does not make out a case of desertion within the meaning of the statute.

Furthermore, it is not corroborated. It has been laid down repeatedly that a divorce will not be granted upon the unsupported testimony of the petitioner. McShane v. McShane, 45 N. J. Eq. 341. Here, failure to support and the state of separation (and that is all the brother-in-law testified to) are not corroborating circumstances, as they were in the cases last cited, because they do not in themselves furnish an inference of intent to desert; and the depositions are barren of declarations or actions on tire part of the defendant evincing an intention to do so. For aught that appears outside of the petitioner’s testimony, she and her husband may be living apart by mutual acquiescence. I have searched the husband’s testimony carefully, but can find nothing in it inconsistent with this hypothesis.

Besides this, the separation was not against the will of the wife. The husband’s conduct may have inspired it, but it was the action of tire petitioner that brought about the condition. She seems to have been content with the situation she created. McGean v. McGean, 63 N. J. Eq. 285. It may be added that there is no corroborating proof of obstinacy.