author: Buchanan, V. C.

text:
    Reginald B. Naugle, complainant, v. Bertha Baumann et al., defendants.
    [Decided January 14th, 1925.]
    Where a vendee of real estate sues vendor to recover -back Ms down payment, vendor not having title to the premises, and continues the prosecution of such suit after knowledge that his vendee obtained title, he thereby waives his right to specific performance.
    On final hearing.

      Messrs. Smith & Slingerland, for the complainant.

      Mr. Earle A. Merrill, for the defendant Bertha Baumann.

      Mr. Augustus O. Nash and Mr. William S. Angleman, for the defendants McYo-y et ux.
   Buchanan, V. C.

The present hearing is on the main bill, hearing and determination as to the cross-bill of Bertha, Baumann having heretofore been had. Naugle v. Baumann, 2 N. J. Adv. R. 1172. Complainant, as vendee, sues the MeYoys, as vendors, for the reformation of a contract to sell and convey certain real estate in Union county, and for the specific enforcement of the contract as so reformed. Bertha Baumann is made a party defendant because her claim of interest in the premises under recorded mortgage, being the mortgage which was the subject of the suit Baumann v. Naugle, in which opinion is filed contemporaneously herewith.

In the view which, I think, must necessarily be taken of this case under the evidence, it is unnecessary to consider the question of reformation, nor any of several other issues raised by complainant’s brief. Assuming that complainant had a valid contract with Mr. McYoy, the present owner of the premises, for the conveyance of the entire premises, and would have been entitled to decree for specific performance except by reason of complainant’s subsequent acts and conduct, the subsequent acts and conduct of complainant have been such as to disentitle him to specific performance.

The contract was made in July or August, 1920, and under the evidence complainant and his wife went into possession almost immediately, and remained in possession until the order for possession was issued against them in January, 1924. McVoy v. Baumann, 95 N. J. Eq. 335. During the first eighteen months or so of this time the litigation of the MeYoys against Baumann, for specific perilormance of Baumann’s contract to' convey was in progress. McVoy v. Baumann, 93 N. J. Eq. 360; Ibid. 638. On October 1st, 1920, the date for consummation of the McYoy-Naugle contract, and also the date for the consummation of the Baumann-McYoy contract, complainant defaulted in completing the sale, and while time was not of the essence, as a matter of fact that default, as appears from the evidence, resulted in. all the voluminous litigation that has since been had among the several parties.

On November 18th, 1920, complainant, finding that Mc-Voy could not give title because of the pending suit against Baumann, notified McVoy that he wanted back his down payment of $400. On Baumann’s refusal to give it back to him, he commenced suit at law November 30th, 1920. This suit resulted, first, in a directed verdict against complainant, which was set aside in the court of errors and appeals (Naugle v. McVoy, 96 N. J. Law 515), and on the second trial a judgment of no cause of action was entered and affirmed. Naugle v. McVoy, 119 Atl. Rep. 100.

An examination of the appeal record in that case shows that the finding of fact on which the judgment was based must have been that McVoy was ready, able and willing, on October 1st, 1920 (the date named in the contract for consummation), to deliver conveyance to Naugle, but that Naugle was not present to receive conveyance and was not ready with the purchase price, and that he had not subsequently made tender of the purchase price and demand for his deed. McVoy not being bound to perform until such tender was made, had not yet breached the contract.

Now, it appears by the evidence in 'the present case that the remiUilur on the decree of affirmance in the original McVoy v. Baumann suit was not filed until July 24th, 1922, the affirming opinion was filed by the court of errors and appeals in June, 1922, and it is argued by complainant that during the period from about October 15th, 1920 (when Baumann refused to convey to McVoy), until the affirmance of the decree for specific performance in June or July, 1922, McVoy Was unable to convey to complainant herein, and hence tender by him would have been useless and is thereby excused; and that since during that period McVoy was unable to convey to complainant, complainant’s bringing of the suit a.t law against McVoy for the return of the down payment was not an election of remedies, because he had no choice or election between remedies, the remedy of specific performance being unavailable to him.

In view of the determination in White v. Smith, 60 Atl. Rep. 399, the contention that McVoy was unable to convey during the pendency of the appeal, would seem, at least, doubtful (although Naugle’s ultimate title under such conveyance would be entirely uncertain, it must be conceded), and in any event would seem clear that if Naugle had desired specific performance during that time, he could have filed his bill in that behalf, and if entitled to decree, provided the decree against Baumann in McVoy’s favor was affirmed, such decree could have been entered in Naugle’s favor immediately upon the affirmance of the McVoy v. Baumann decree. It would seem, therefore, that Naugle did make an election in favor of his remedy at law as against his possible or contingent remedy in equity.

B:ut conceding, for the sake of argument, the correctness of Naugle’s contention in this behalf, it is evident that it was open to him in June or July, 3922, to offer his money to MeVoy and obtain or seek to obtain conveyance, and if such conveyance was refused, to have filed bill for specific performance, abandoning his suit at law for the return of his money, in which his appeal was then pending and undetermined. This he did not do. The determination of that appeal was made known by opinion filed November 20th, 3.922, so that Naugle clearly persisted in a choice and determination to rescind his contract and to procure the return of his money, rather than to perform his contract and obtain conveyance of the property, for some five months. Indeed, this attitude of mind evidently continued for a year longer, for it was not until December 22d, 1923, that he demanded conveyance from McVoy, and on refusal filed his present bill.

The reason for this choice or attitude of mind on his part is evident, when it is noted that his wife had taken, in August, 1922, a deed of conveyance for the premises from Cooley (the man to whom the Baumanns had conveyed after refusing to convey to McVoy—see McVoy v. Baumann, 93 N. J. Eq. 360), obviously, in the belief that the McVoys had lost their right to the property. See McVoy v. Baumann, 95 N. J. Eq. 335; In re Cooley, Ibid. 485.

Both Mr. and Mrs. Naugle were respondents to the pro^ ceedings on petition for order for possession (McVoy v. Baumann, 95 N. J. Eq. 335), and in defense of those proceedings set up the Cooley deed to Mrs. Naugle, but did not set up the McVoy-Naugle contract now sued on. Having failed to set it up there, it would seem that under the principle of res adjudicada it cannot now be set up here.

In any event, I am clear that, under well-settled principles, specific performance should not now be decreed; that the right thereto, if it existed, has been lost by complainant’s election to treat the contract as rescinded and to' recover his down payment by waiver and abandonment, and by failure to bring suit with the reasonable promptitude required by courts of equity in such cases.

In view of this result, it might seem proper that the decree provide for the repayment by McVoy. to' Naugle of the $400. Friel v. Turk, 95 N. J. Eq. 425; 2 N. J. Adv. R. 250. It is not clear from the evidence, however, that Naugle is entitled, to this. It appears that the Naugles were in possession of the property for over three years, and paid no rent to McVoy therefor, although there is evidence that they paid taxes, repairs and other upkeep expenses. If complainant desires, there may be an order of reference to a master to determine the fair rental for the property, the payments made by the Naugles, which have enured to the benefit of the McVovs, and to state an account between them to determine how much, if any, of the $400 should be repaid to McVoy.


source: Caselaw Access Project

license: Public Domain

text:
    John Often, complainant, v. George Stout et al., defendants.
    [Decided February 13th, 1925.]
    Where a vendee of lands under an oral contract makes permanent improvements to the lands after notice by vendor denying or repudiating the contract, no estoppel is raised to avoid vendor’s defense of the statute of frauds.

      On final hearing.

      Mr. Walter G. Sedam and Mr. Warren B. Schenck, for the complainant.

      Mr. Max A. Sturm, for the defendants.
   Buchanan, V. C.

The bill is by complainant, as vendor, for the specific performance by defendants (husband and wife) of a contract for the sale and conveyance of certain real estate. The answer denies the making of the alleged contract, and under this answer defendants rely on the statute of frauds—as they are entitled to do. Ziegener & Lane v. Daeche, 91 N. J. Law 634. Complainant contends that the proofs show a sufficient compliance with the statute, but that if not, there has been part performance sufficient to take the case out of the statute.

The land to which complainant claims to be entitled is a tract of forty acres, at the comer of a farm, of about one hundred and sixtv-three acres at Spottswood, New Jersey, which forty acres contains the only house and farm buildings on the farm. The whole farm was, in May, 1923, owned by defendant George Stout, and occupied by complainant under a lease running until January 1st, 1924.

The contract, as alleged by complainant, was for the sale to him of the corner piece above mentioned, containing about forty acres, for the price of $5,000, whereof $1,000 was to be cash and the balance on mortgage for five years at six per cent.; $100 was paid to-defendant on May 5th, 1923, and consummation was to take place prior to January 1st, 1924.

The written memorandum relied on by complainant consists of a letter from defendant to J. W. Dawson, a real estate agent, dated April 24th, 1923, and a receipt given by defendant to complainant, May 5th, 1923. They are as follows :

“April 24, 1924.
J. W". Dawson.
Dear Si-r—After thinking matter over, came to the conclusion that 40 acre [38%1 piece on corner, should bring $5,000, as house, well, etc., amounts to something [the house, frame and slate roof are O. K.]. The place has cost me considerable and want to realize as much as possible. In selling wood on East Brunswick township piece, reserve pine cedar trees on East road, there are three or four there.
Respectfully,
G-. S. Stout.
P. ,S.—I think you will be able to sell John the corner piece, he has money, and think you can get cash, get as much down as possible.
G. S.”
“May 5, 1923.
Received from John Often the sum of one hundred dollars on deposit for piece of farm at Spottswood, N. J., about 40 acres.
G. S. Stout.”

Complainant’s evidence is to the effect that the letter to Dawson was sent in connection with conversation by Stout with Dawson, authorizing him to sell forty acres at the corner; that Dawson showed complainant the letter (which was accompanied by a map or plan of the farm, but which map did not delineate boundaries for the forty aeres); that Stout authorized Dawson to make the terms of $1,000 cash and $4,000 on six per cent, five-year mortgage; that Dawson gave those terms to complainant; that complainant went to Stout, accepted those terms, paid Stout $100, and got the receipt; that both Dawson, and later Mrs. Stout, showed complainant, on the ground, where the boundaries of the forty-acre tract would be.

Assuming, for the sake of argument, that the letter and receipt might be together taken as a sufficient memorandum in writing if it were not for the deficiencies now to be mentioned, it is clear that the written memorandum is lacking in at least two essentials. It contains nothing of the alleged terms as to $4,000 mortgage, and it contains no description of the premises. These defects a,re fatal. Lippincott v. Bridgewater, 55 N. J. Eq. 208. It is true that the lands need only be described with reasonable certainty, but the description here is entirely uncertain; any boundary line which would enclose forty acres at the corner where the house was situate, including the house, well and building, would comply with the description. The situation is quite different from that in Bateman v. Riley, 72 N. J. Eq. 316; Wollenburg v. Rynar, 96. J. Eq. 38, and cases of that type.

It is contended, however, that the evidence shows part performance under circumstances which take the case out of the statute of frauds. It is true that there is testimony (as to which there is little, if any, real contradiction) that complainant, after the date of the alleged contract, planted a considerable amount of strawberries, rhubarb and asparagus, on the forty-acre tract, he claims, and cleared off stumps and bushes from some of that tract, and possibly some other similar work. The difficulty is that it does not appear that much, if any, of this work was done prior to July 7th, 1923, when he was served with notice of termination of his tenancy, which he evidently took as a denial of his contract rights. The correspondence between the lawyer and defendant’s lawyer, immediately following, gave him notice that defendant denied the alleged contract. The letter from complainant’s lawyer to defendant’s lawyer, October 2d, 1923, offering to rescind the alleged contract on return of the $100 is quite convincing that little, if any, of the permanent improvements mentioned had been done at that time. Whatever was done after knowledge that defendant denied the alleged contract and refused to carry out such a contract, certainly cannot be said to have been done in reliance on the contract so as to raise an estoppel in favor of complainant against defendant’s setting up the statute of frauds—and this is the principle upon which the doctrine that part performance avoids the statute is based. Cooper v. Colson, 66 N. J. Eq. 328.

Likewise, under such circumstances, it cannot be said that such improvements as complainant made were induced by fraud or conduct amounting to fraud on the part of defendants, so as to entitle complainant to an equitable lien. Moreover, he has had the benefit of a year’s occupancy of the premises without rent.

Another thing militating against relief to complainant, or examination of the parol evidence on the question of the making of the alleged contract on May 5th, 1923, is the fact that by complainant’s own admission, on cross-examination, the oral agreement or understanding arrived at on that day was not intended to be final and conclusive, but was to be embodied in a written agreement to be executed shortly thereafter. Such is the purport and effect of his testimony on its face, and the burden of proof is, of course, upon him, so that whatever doubts might arise from the fact that he is a'foreigner, uneducated and handicapped as to his use and understanding of English, cannot be resolved in his favor. On the face of this testimony there was no binding agreement even by parol. Bettcher v. Knapp, 94 N. J. Eq. 433.

The defendant has not been fair and frank in his pleadings or his testimony. ITis answer denies the letter to Dawson hereinbefore quoted, whereas at the trial the original was produced and admitted to be in his handwriting, and proves in exact accordance with the copy annexed to the bill. His testimony that he never contemplated or was willing to sell the corner piece by itself is completely refuted by this same letter.

The dismissal of the bill will therefore be without costs.


author: Buchanan, Y. C.

text:
    Elmore Development Company, complainant, v. Abraham Binder, defendant.
    [Decided February 5th, 1925.]
    1. Twenty years’ adverse possession, under section lfi of the statute of limitations (3 Comp. Stat. p. 3169), vests actual title in the disseizor.
    2. ' Where one claiming title by adverse possession brings suit under the act to quiet title (4 Comp. Stat. p. 5399) against the holder of the paper title and all other persons who could claim as his successors in interest, a final decree in favor of complainant establishes title affirmatively in him; and this is so whether or not the suit is actually litigated by any of the defendants, if all have been dul-y brought into court, whether by actual or substituted service.
    3. The vendee of the holder of a title established by such a decree cannot successfully resist specific performance on the ground that vendor’s title is doubtful.
    4. Quare: Might such a vendee properly reject such a title as doubtful, where the pi oofs do not exclude the possibility of the existence of infants or persons ron compus mentis (to whom rights are reserved under the statutes mentioned), as outstanding, possible, future claimants?
    On final hearing.
    il/essrs. Stamler, Siamlcr & Koestler, for the complainant.

      Mr. Charles Wagner, for the defendant.
   Buchanan, Y. C.

The bill is by vendor against vendee for specific performance of a contract for the sale and conveyance of certain real estate in Union county. The facts are in nowise in dispute. Complainant was and is ready and willing to convey, but defendant refused to accept conveyance on the ground that the title is unmarketable, which is the sole defense set up by the answer.

Defendant’s objection to the title is that the chain of title of record of the premises in question shows conveyance thereof bv three deeds to oné Paul J. Armour, followed by three declarations of trust 'by Armour in favor of Commercial Warehouse Company of New York, December 28th, 1874. and that there is no conveyance of record from Armour or the Commercial Warehouse Company to complainant or any predecessor of complainant, or anyone else.

Complainant’s title is based on conveyance to it July 26th; 1923, by Hippolyte De Eaismes and wife, and on adverse possession by it and its predecessor De Eaismes for more than twenty years, and on decree in this court in suit to quiet title.

In August, 1923, complainant filed its bill to quiet title against “the said Paul J. Armour, individually and as txustee for Commercial Warehouse Company of New York, his heirs, devisees and personal representatives and their ox any of their heirs, devisees, executors, administrators, grantees, assigns or successors in right, title or interest, and the Commercial Warehouse Company of New York, its heirs, devisees and personal representatives, and their or any of their heirs, devisees, executors, administrators, grantees, assigns or successors in right, title or interest.” Decree was entered January 29th, 1924, that the said defendants (as above named) “have, no estate or interest in or encumbrances upon” the lands in question (specifically describing them), “and that in respect to all said lands and premises, so far as relates to any claims thereon by or on behalf of the said defendants [naming them as above], the title of the complainant in and to the same and every' part thereof is. hereby determined, fixed and settled and declared to be good.” Copy' of the decree was duly recorded immediately in the register’s office of Union count}'.

No proof was made in the present suit of adverse possession for over twenty years by complainant and its predecessor, complainant relying on the decree above mentioned as proof of its title. It appears by the pleadings in the quiet title suit that the title claimed by it was based on adverse possession as aforesaid. r,

It is, o£ course, elemental that equity will not compel a vendee to accept a doubtful title. The vendor’s title must be good beyond a reasonable doubt, and such as will not expose the vendee to litigation. See Smith v. Reidy, 92 N. J. Eq. 586 (at pp. 589, 590), where the leading authorities are quoted'.

If the issue as to the validity of vendor’s title turns on a question of fact, notwithstanding that such issue of fact might be determinable by this court in favor of the validity o(: the title, this court will not make such determination (and .decree specific performance) where the persons having the (possible) hostile claim are not parties to. the suit and would not bo concluded by the decree, and where the evidence would not be, to a reasonable certainty, available to the vendee for his protection in the future against such hostile claim. Fahy v. Cavanaugh, 59 N. J. Eq. 278; Sulk v. Tumulty, 77 N. J. Eq. 97; Doutney v. Lambie, 78 N. J. Eq. 277.

Hence, if in the present case the complainant’s proof of title was testimony by living witnesses to' show adverse possession, complainant would not be entitled to decree, as complainant, indeed, concedes. That, however, is not the situation here. Complainant’s evidence of title is the decree in the suit to quiet title, a suit brought by this complainant against the persons in whom might otherwise inhere the right to assert against complainant that “paper” title, the existence whereof is pleaded by defendant in excuse of his non-performance, and brought for the very purpose of obtaining against such persons an adjudication adverse to the possibility of their maintaining any such claim of title against complainant.

I take it to be unquestionably the law that where a vendeedefendant alleges a defect in the vendor’s title, and the vendor proves a final judgment or decree of record in a eoxxrt of competeixt jurisdiction against all of such persons as might otherwise assert a hostile claim against the vendor in regard to sxxch alleged defect, adjudicating in favor of the vendor axxd against such claimants the very question as to whether or not' such claimants have any right against the vendor in regard to the alleged defect, the proof of such final judgment constitutes a complete refutation of the vendeedefendant’s allegation of defect in title and entitles vendor to decree of specific performance (assuming that to> be the sole issue between vendor and vendee). Under the elemental principles of the doctrine of res adjudicate/, such a judgment or decree enures to the benefit of subsequent grantees of the party in whose favor it was rendered, and is conclusive aiid binding upon all subsequent representatives or successors in title or interest of the persons against whom it was rendered. Hence, the vendor’s title woxxld be good beyond reasonable doxxbt, and the vendee, taking titles would not be exposed to future litigation in regard thereto. (As to. what is meant by “being exposed to litigation,” see Smith v. Reidy, supra,— at p. 592, bottom.)

Now, it is evident from the record in the suit to quiet title that that suit was brought by the present complainant (vendor) to “settle the title” to these very lands and “to- clear up all doubts or disputes concerning the same,” under the authority of the act commonly known as the act to quiet title (I Comp. Slat. p. 5399), as amended by the supplement P. L. 1912 p. 151, and as further amended by P. L. 1922 p. 182; that the issue set up by that bill was the very defect or question of the validity of the title of complainant to these lands as against the record or paper title in Armour and Commercial-Warehouse Company, which is now set up as an issue in the present suit, and that the defendants' to that suit were all persons who could or might be able or entitled, on the basis of that paper title, to dispute complainant’s title to the lands.

The adjudication of the decree in that suit has been hereinbefore quoted.

None of the defendants in that suit answered or appeared; none were served with subpoena, but the proceedings for substituted service were duty had in accordance with the provisions of the amendment of 1922 (supra). The efficacy and validity of the provisions of the statute as so amended, and of the proceedings had in accordance therewith, cannot be open to question in view of the determination of the court of errors and appeals in Realty Co. v. Burghardt, 91 N. J. Eq. 120, which dealt with a similar question and situation, except that the litigation there preceded the statutes of 1912 and 1922 (supra). Obviously, the statute of 1912 was intended to, and does, remedy the legislative defect determined to exist by Hill v. Henry, 66 N. J. Eq. 150 (now overruled by Really Co. v. Burghardt, supra), and the statute of 1922 was intended to, and does, remedy the legislative defect intimated by Vice-Chancellor Stevenson in the sixth section of his opinion in Really Co. v. Burghardt, 90 N. J. Eq. 347 (at p. 351).

The present defendant, however, contends that the effect of complainant’s decree is not an affirmative establishment or adjudication of title in the complainant, but an estoppel against the defendants from asserting title. I confess that, offhand, that seenm, under the circumstances, a distinction without a difference, as a practical matter, but the present determination need not be rested on such a view, for defendant’s contention is contrary to the fact.

The statute (section 1) authorizes complainant to bring and maintain a suit to “settle the title * * * and to' clear up all doubts and disputes concerning the same,” and by section 6 it is enacted that the final decree in such suit shall “ñx and settle the rights of the parties in said lands.” (Italics mine.) When consideration is had of this statutory language, and of the situation which the statute was designed to remedy (Cf. Realty Co. v. Burghardt, supra, at pp. 123, 124), and of the fact that the issue submitted by the bill in the suit to quiet title, now being examined, was the issue as to whether the apparent holders of the record title had any title or claim as against the complainant, who claim ownership in fee-simple as against such apparent record title holders by adverse possession, there can be no doubt whatever but that the court had due authority under the statute to decree that title was in complainant as against the paper title defendants, and that such is the force and effect of the decree in question, and that such decree is the equivalent of a deed from the record title-holding defendants to complainant; it establishes affirmative title in complainant as against the only persons who, under the evidence in this case, or under the alleged defect as to title set up by defendant, could or might otherwise have title. In Spottiswoode v. Morris and Essex Railroad Co., 61 N. J. Law 322 (at p. 832); unanimously affirmed, 63 N. J. Law 667, it is expressly decided that twenty years’ adverse possession confers title. In Yard v. Ocean Beach Association, 49 N. J. Eq. 306, a suit to quiet title> the decree adjudged title in the complainant by adverse possession (p. 309), and was unanimously affirmed. The adverse possession for twenty years vests or confers the title; the judgment or decree establishes that fact of record, and this is, of course, true whether it be a judgment at law ox a decree in equity.

■Defendant further contends, however, that the effect of the final decree in the suit to quiet title cannot be to establish affirmative title in complainant, because by the provisions of the statute that result (conceding- that it be attained by a final decree after due proofs in an actually contested case) cannot be attained by a decree by default, and that the decree in this case was by default.

Assuming that defendant is not precluded from, such contention, as being a collateral attack upon the decree (Schultz v. Sanders, 38 N. J. Eq. 154; McGahill v. Equitable Life, &c., Society, 26 N. J. Eq. 531), the contention is not sound. Section 3 of the act provides that as to a defendant who suffers decree pro confesso' against him, the court “shall, without further proof, decree that such defendant has no estate or interest in or encumbrance upon said lands, or any part thereof.” The final decree in the present case included such a provision. But there is nothing in this section 3, nor in section 6, nor in any other part of the act which purports to say that the provisions of section 6 (that the final decree shall fix and settle the rights of the parties to the suit, i. e., the right of complainant as against the defendants as well as vice versa) shall not apply to final decrees in cases where all defendants have suffered decree pro confesso against themselves. Nor is there any basis for argument for such construction by implication. The language of section 6 is clear and express and all-inclusive, and the complainant’s necessity to settle his title, for which purpose the statute was designed and intended, is just as great whether defendants appear and defend or not.

The defendant further questions 'the jirrisdiction of this court to have entertained the complainant’s suit to quiet title and render decree therein, on the ground that he should have proceeded at .law, relying- on Sheppard v. Nixon, 43 N. J. Eq. 627. Assuming that it is open to defendant to raise such objection, it is sufficient to point out that that opinion expressly reiterates that the object and applicability of the statute for suits to quiet title is for the relief of persons in peaceable possession with no means of contesting the adverse claim, which was precisely the situation of complainant. Nugent v. Grossman, 91 N. J. Lem 360, is in no-wise an authority against the maintenance of such suit. Mason v. Home Real Estate Co., 90 N. J. Eq. 455, and Realty Co. v. Burghardt, 91 N. J. Eq. 120, are controlling authorities in favor of the maintenance of such suit under like circumstances.

Finally,' defendant argues that even though this court’s determination of the objections raised by him be against him, nevertheless, they, or some of them, must still be deemed “doubtful” questions until finally determined by the- court of errors and appeals, and hence defendant should not be compelled to take title, under the declarations of that court in Van Riper v. Wickersham, 77 N. J. Eq. 232, and Doutney v. Lambie, 78 N. J. Eq. 277, followed and applied in Kohlrepp v. Ram, 79 N. J. Eq. 386; Smith v. Reidy, 92 N. J. Eq. 586, and other cases. Here, again, I disagree. I think there is no reasonable doubt in respect to the several objections raised by defendant, and it follows that complainant is entitled to decree for specific performance.

Moreover, Jiad my opinion been different as to any of the points herein considered, I should have felt bound to- advise decree for specific performance- in view of the determination of the court of errors and appeals in Realty Co. v. Burghardt, supra. The facts in that ease are almost exactly identical with these in the case at bar. Reference to- the files in the qiriet title suit there involved (Siedler v. Vreeland, docket 25 p. 638) shows-, in addition to- the facts given in the two opinions, that service on Vreeland, his- heirs, devisees- and personal representatives, was had by publication only; that no defendant answered or appeared; that decree- by default was entered in the same language as that of the decree in Elmora Co. v. Armour. The decree of the- appellate court reversed this court’s- decree of dismissal and directed that a decree be entered for the relief prayed for in the bill. It is obvious that all the facts forming the basis for the objections in the instant case were present in that case, and, in fact, that case was a much stronger one fox defendant than the present case. The appellate adjudication that complainant-vendor is entitled to specific performance in a case where the facts are so substantially identical must needs control the present case, notwithstanding that the arguments of the present defendant based on those facts were not raised in the Burgliardb Case, nor mentioned by the court in its opinion.

For that reason, and because, moreover, it was not raised by defendant, it is unnecessary to' consider at length a matter which, I think, however, it might be well to mention. It is possible, of course, that a conveyance may have been made by Armour and the Commercial Warehouse Company to some one who failed to record it; that such grantee may have died leaving heirs ox devisees who are still infants', and that the persons actually disseized by the adverse possession may have been such infants. In view of the rights preserved to infants under the sixteenth and seventeenth sections of the statute of limitations (forming the basis of the acquisition of complainant’s title), and under the sixth section of the act to quiet title, may it not be open to argument that complainant’s title is not beyond the possibility of successful attack by such possible infants (or persons non compos mentis) after removal of disability, and hence, that the title is “doubtful ?”


text:
    Eugenia Rossi, complainant, v. Umberti Rossi, defendant.
    [Decided March 17th, 1925.]
    1. Where a husband, with full knowledge of adultery by liis wife and the birth of an illegitimate child, executes a formal “Act of Recall,” wherein and whereby he acknowledges the child to be his own, and undertakes the obligation of supporting his wife and the said child, for the purpose of accomplishing their emigration from Italy and entry into the United States together with his legitimate children, and such emigration and immigration in fact takes place, followed by several months of residence with, and support of, said wife and all of said children, he is estopped from denying condonation of the wife’s adultery in a suit by her for support and maintenance under Divorce act, section 26.
    2. Such estoppel arises, not only in favor of the wife, but also in favor of the state, where the evidence shows that the wife and child have become charges upon the public.
    3, In such a case the wife would be entitled to decree for support for herself and the child on the further ground of specific enforcement of contract.
    On final hearing.

      Mr. -Joseph J. Félcone and Mr. John II. Safes, for the complainant.

      Messrs. Perlman- & Lerner, for the defendant.
   Buchanan, Y. C.

The bill is for maintenance under the statute. The parties were married in Italy in 1901, and had four children (of whom two are dead). In 1906 the husband came to America, leaving the wife and children in Italy. Thereafter the husband entered into an adulterous cohabitation in this country with a woman named Hall, with whom (together with their several illegitimate children) he is now living. The wife adopted a similar course in Italy with a man (now dead) by whom she had one child, Giuseppe, who is still living, and about eight years old. It is not clear which spouse first erred, nor, in my view, is it material.

In 1920 the wife and the three then living legitimate children of the pair were in reduced circumstances in Italy, the second “husband” having died, and some correspondence was had between them and defendant as to his bringing them over to America,.

Defendant says that he was willing to bring the children over but not his wife; that the children declined to come without their mother, and that the mother agreed not to “molest” defendant if she came over. Taking all this to be true, the final result of this correspondence was that defendant sent to the family in Italy an instrument known as an “act of recall,” solemnly executed by him under oath before a notary public and attested by the Italian consular agent, and reading as follows (according to the translation accepted by both parties) :

“United States of America—Act of Recall.
“In tlie year one thousand nine hundred twenty-one, on the 25th day of the month of January in the City of Trenton, Mercer County and State of New Jersey, to me ‘Michele Gommini, notary public, duly authorized, and to the simultaneous presence of the undersigned witnesses known to me, qualified, has personally presented himself Mr. Umberto Rossi, son of Vincenzo, deceased, of 42 years of age, a machinist by trade, hailing from Assisi, Province of Peruzia, Italy, and at present residing in this City at No. 2352 William St., personally known to me and to the witnesses, who has made known to me his will to recall unto himself, as he actually does with the present act of recall, liis wife, Signora Eugenia Rossi neé De Martinis, 41 years old, and children: Vincenzo Rossi, 19 years old; Ida Rossi 17 years old; Ninetta Rossi, 14 years old, and Giuseppe Rossi, S years old, all residing in the City of Piasenza, Italy.
“Under the sacredness of the oath the above-mentioned Umberto Rossi has declared to me that, by constant and honest labor he has succeeded in securing for himself a fair position so as to assume as he actually assumes with the present act the formal obligation of providing for all the needs of the recalled ones, who, with him from the first day of their arrival in these .States will find food, home and aid, especially in the distant case of illness.
“Furthermore, the above-mentioned Umberto Rossi has declared unto me that he knows the requirements of the laws and regulations on emigration and immigration; that he is a naturalized citizen of the United States of America; that he is duly registered with the military authorities of this country, and following his declarations made under oath and ihe obligations assumed by him, he believes that the Italian authorities will have no difficulty in issuing the passport.
“As a last act, the above-mentioned Umberto Rossi obligates himself to furnish the recalled ones with the necessary means whenever they might wish to return to Italy.
“The present act has been by me published by reading, and after verification of its contents, it has been signed by the maker Umberto Rossi, by the witnesses and lastly by me Notary Public.”

He also sent the money for their passage, and they all came over to the United States in 1921, were met by him on landing, and established by him in a house in Trenton, where he lived with them for four or five months and then left them, returning to his other family, the Hall woman and her children. Since then, admittedly, he has not contributed to the support of wife or children.

The husband’s defense to the present suit is the wife’s previous adultery. He also relies on the fact that the boy Giuseppe is not his child.

As against the husband’s contentions the wife sets up the agreement or act of recall, and contends that there was con-donation by the husband of her admitted guilt.

The husband testified that during the several months’ residence with his wife and family in Trenton he did not sleep with his wife; had no sexual intercourse with her, and, in fact, seldom even spoke to her. The wife admits they did not sleep together, but says this was because of an insufficient number of beds,, which made it necessary for the husband to sleep with tbe son or a boarder; she says he treated ber affectionately for a couple of months, and that they had sexual intercourse about twice a week. The conflict of testimony is absolute; there is corroborative testimony on both sides.

However, it does not seem to me to be necessary to- decide this issue of fact. Assuming that there was no sexual intercourse between the parties, it, neverthless, is true that he executed this formal instrument of recall, wherein and whereby he solemnly assumes “the formal obligation of providing for all the needs” of the wife and children, including “food, home and aid;” that he executed and sent this to Italy for the purpose of having his wife and children come to this country; that, in accordance therewith, he did establish and maintain her in a home with the children, and lived with, them there, as the husband and father, and all this, of course; with full knowledge of his wife’s prior misconduct.

It is contended on behalf of the husband that there is no condonation in the absence of resumption of sexual intercourse. This would seem to- be true in so far as it applies to suits for divorce on the ground .of adultery, where condonation of the adultery is alleged in defense. Goeger v. Goeger, 59 N. J. Eq. 15; Taber v. Taber, 66 Atl. Rep. 1082. But the present suit is not a divorce suit; it is one for maintenance.

■The duty of the husband to support the wife is a legal duty, and one in which the state has. an interest, particularly where, as in the present case; the support of the wife has been cast upon the state (the municipality) and the public (general charities) by reason of the husband’s default.

It seems to me that decree for maintenance should be made. The basic principle of the doctrine of condonation is waiver. Even if technical condonation sufficient to avoid a suit for divorce on the ground of adultery has not been proven, the facts show an express waiver of the defense which that adultery might* otherwise have given the husband to the suit for maintenance, as well as of all other defenses available to him up to that time. The formal document is. itself the act of waiver, and was followed by other acts fulfilling the promise of the instrument. Consideration, if needed, may be found in the acts of the wife in coming to this, country, or the act of third parties, the children, in coming over here in consideration of the promise or waiver.

The same result is reached on the kindred doctrine of estoppel. Both the wife and the children changed their position, relying on the “act of recall,” and defendant is estopped from denying its efficacy as a waiver of whatever right he might otherwise have had to refuse support and maintenance. In other words., he is estopped from denying condonation.

Into this estoppel enters also the element of public policy. It is a matter of'common knowledge, as well as a matter of which this court takes judicial notice, that the entrance of dependent immigrants is conditioned upon a showing of adequate provision for their support. The proofs show that this wife and the children were destitute of means, for the husband had to send the money for their passage, and it is evident that the formal “act of recall,” with its solemn undertaking of support, was executed for the purpose of aiding in the accomplishment of bringing them into the country. To permit the husband now to evade or avoid that responsibility would be to permit him to accomplish a fraud upon our government and to force upon this country and this state the duty and care which belonged to the Italian government if it did not belong to defendant.

We are led also to the same end by a consideration of the instrument of recall as an enforceable contract with or for the benefit of complainant. That there was consideration therefor has already been shown. Nothing has been pleaded or proved which would excuse defendant from liability to perform. It is true that the suit is not in form a suit for specific performance of an agreement to support, but that is mere matter of foam, and complainant may be permitted to amend, if necessary, by adding an additional cause of action in that behalf.

At the hearing it seemed to me that the decree should not go to the extent of providing for the support of the child Giuseppe. Further consideratioaa, however, particularly from the standpoint of estoppel and of specific performance of contract, leads to a contrary opinion. Defendant is'estopped from contradicting his solearan and express declaration that the child is his, and is bound to the performance of his express promise to support it.

Decree will be advised for complainant in the sum of $10 per week, of which $7 shall be deemed for the wife's maintenance and $3 for that of the child. Costs, including counsel fee of $75, will be allowed.


author: Fielder, V. C.

text:
    Westfield Trust Company et al., complainants, v. Charles K. Beekman et al., defendants.
    [Decided April 23d, 1925.]
    1. A testator directed his trustees to conduct a publication, in which he held the entire stock, unless and until a flattering offer therefor is obtained fromi persons who will conduct it upon the same lines and maintain the same standard as the testator. 1-Ie also directed that in case a certain club should at any time in the future desire to acquire a portion of his lands, his trustees should deal with the club in the same manner as he had shown in his trans actions with the club. Held, that these words are directory and not mandatory, and that such provisions do not offend the rule against perpetuities.
    2. Where trustees are given merely an authority to sell real estate in their discretion, and the will does not require that they shall exercise such power for the purpose of -carrying out the provisions of the will, the testator’s real estate retains its character as land until it is actually sold.
    3. A bequest of income from real or personal estate, or from both, without limit of time, or gift over which can operate, is a bequest of the principal of the fund, if there be no expression in the will of a contrary intent. The rule applies whether the gift of income be direct or through the intervention of a trustee.
    Oil bill, &C.
    The bill is filed for construction of certain paragraphs of the will of Louis Keller, who died February 16th, 1922, a resident of Union county, in this state. The will is date,d January 30th, 1922. Its first three paragraphs provide for the payment of debts and bequeath certain personal property to his nephew, Charles K. Beekman, and his cousin, Natalie Wilmer Wood. The rest of the will follows:
    “Fourth. I hereby give, devise and bequeath all the rest, residue and remainder of my estate, real, personal and mixed, and wheresoever situated, where of I may be seized or possessed, or to which I may be in any manner entitled, or in which I may be interested at the time of my death, unto my executors and trustees hereinafter named, and to their heirs and assigns forever.
    “In trust, nevertheless, as follows:
    “Fifth. I do will and direct, and do make the following charges against the same, and do impose upon my said trustees the following obligations, viz.:
    “(a) To continue to conduct the Social Register on the same lines as the same has been conducted 'by me, unless and until a flattering offer is obtained from persons who will conduct it up'on the same lines, and who can be relied upon to maintain the standard which I have sustained.
    “(b) To retain in the employ of the-Social Register Bertha M. Eastmond and John Metterhouse, during their lives, and to pay to said Bertha M. Eastmond one-tenth of the annual net profits derived therefrom, less the amount of her annual salary, and to provide for the said payment to her, even if the Social Register be sold ; and to pay to said John -Metterhouse one-twentieth of the annual net profits derived therefrom, less the amount of his annual salary, and to provide for the -said payment to him even if the Social Register be sold.
    “Sixth. It is my will 'and I do order and direct that the remainder of the income from my estate shall be paid and disposed of as follows:
    “(a) One-fourth portion thereof shall be paid by my said trustees annually, to my cousin Josephine De Ronje, for and during her natural life.
    “(b) One-fourth portion thereof shall be paid by said trustees annually, to my cousin Natalie Wilmer Wood, wife of Walter Wood, during her natural life, and upon her demise said portion shall be paid annually to her heirs.
    “(c) One-fourth portion thereof shall be paid by said trustees annually, to Annie Townsend Ashmore, for and during her natural life.
    “(d) One-fourth portion thereof shall be paid by my said trustees annually, to Holoise Beekman, wife of David Leavitt Hough ; Catherine Beekman, widow of the late John W. Huger, -and Margreta R.. daughter of the later William B. Beekman, in equal shares, during their joint lives, and upon the death of one or more of them, then to the survivors or survivor of them, and after the death of all of them, then the said one-fourth portion shall be paid to my nephew, Charles K. Beekman.
    “Seventh. I do further order and direct my said trustees to pay to Solon P. Norton, husband of my step-sister, Marie Keller, the sum of $1,000 annually during the natural life of my said step-sister.
    “Eighth. I do order and direct my said trustees to cancel and deliver up to the Calumet Club of New Xork City all bonds of the said Calumet Club issued in my name or in my possession at the time of my demise.
    “Ninth. I do further order and direct that my said trustees construct the house planned by Architect Harold Tatton, on my property opposite the gate of the Baltusrol Golf Club, in the township of Springfield, Union county, New Jersey, and lease it in accordance with my promise to my friend, Edith Morgan Williams, of New York City, during the terms of her life at a rental of ten per cent, of the cost of construction of said house.
    “Tenth. In the event that the Baltusrol Golf Club, situated in Springfield township, Union county, New Jersey, should at any time in the future desire to shift the boundary lines of its property and acquire more of my lands, I do order and direct my said trustees to deal with the representatives or authorities of said golf club in the same manner that I have always shown in nny transaction with them.
    “Eleventh. I do order and direct my said trustees to- retain my farmer, J. M. Sweeney, in his position as filled by him, and I do further order and direct my said trustees to pay him, in addition to his present earnings, twenty per cent, of the net earnings of my dairy and farm for at least ten years, or until the sale of the said dairy land becomes imperative.
    “Twelfth. I hereby nominate and appoint my nephew, Charles Keller Beekman, of New York City, and my friend, Henry A. Van Liew, of Baltusrol, Union county, New Jersey, executors and trustees of this my last will and testament, and I do hereby authorize and empower my said executors and trustees, or their successors, to grant, bargain, sell or convey and dispose of any lands, tenements or property, real or personal, whereof I may be seized at the time of my demise, or of which they may be seized or possessed as my said executors and trustees, and- upon any such sale thereof, to execute, acknowledge and deliver all necessary and proper deeds or instruments of conveyance in law for vesting in the purchaser or purchasers the title thereof in fee, and I hereby authorize and empower my said executors and trustees, or their successors, from time to time, in their discretion, to call for payment of and to sell and transfer all my property or securities in or upon which my estate, or any part thereof, may be invested, and t'he same again to reinvest in other securities. I do hereby direct and authorize my said executors and trustees, or their successors, to conduct my business known as the Social Register, and any and all my other business and affairs, for the purpose of creating, providing for, and maintaining the income necessary to defray and pay the annuities and other charges in this my will, created, imposed and provided for.” * * *

      Mr. Marls Townsend, Jr., Mr. Charles 0. Truex, Mr. William E. Declcer; Mr. Harold R. Medina and Mr. W. II. L. Edwards (of the New York bar), for the complainants.

      Mr. John R. Hardin, Mr. Corwin Howell; Mr. Louis H. Porter, Mr. F. Carroll Taylor and Mr. William A. W. Slew-art (of the New York bar), for the defendants Natalie Wilmer Wood et al.

      Mr. Elmer L. McKirgan, Mr. Herbert Glarh Gilson; Mr. Balph S. Wolcott and Mr. William L. Bainton (of the New York bar), for the defendants Charles K. Beekman et al.
   Fielder, V. C.

As to paragraph 5, it is argued that the trustees may never obtain a flattering offer for the “Social Register” from persons who will conduct it upon the same lines, and who can be relied on to maintain the standard established by the testator, or that such offer may not be obtained within a period of lives in being and twenty-one years thereafter, and that the trust is void as opposed to the rule against perpetuities, because the trustees are directed and charged with a positive obligation to conduct the “Social Register” unless and until offer of the kind described is obtained from persons described.

Before taking up this provision, I would observe that the will is divided into paragraphs apparently for the sole purpose of stating separately the various objects the testator had in mind, and that the order in which the paragraphs appear, is of no significance. For instances, had the will been drawn in orderly fashion, paragraph 7 would precede paragraph 6; paragraph 8 would precede paragraph 4 and paragraphs 9 and 11 precede paragraph 6, and so the arrangement and numbering of the separate paragraphs are of little, if any, assistance in ascertaining the testator’s scheme of disposal of his estate, but the entire will must be read for the purpose of giving effect to his intentions.

By paragraph 4 the testator gives his entire residuary estate, including the “Social Register,” to his executors and trustees in trust for certain purposes, and he then proceeds to set out those purposes in paragraphs which he numbered 5, 6, 7, 9 and 11. He prefaces paragraph 5 with the words, “I do will and direct and do make the following charges against the same [the entire residuary estate], and do impose upon my said trustees the following obligations.” In ascertaining the meaning and intent of these words and of the words with respect to the “Social Register” which follow, paragraph 12 of. the whole scheme of the will must be considered. By paragraph 12 he appoints executors and trustees; authorizes and empowers them to sell real and personal property; directs and authorizes them to conduct the “Social Register” and all other business and affairs for the purpose of creating, providing for and maintaining the income necessary to pay the annuities and other charges created, imposes and provided for by paragraphs 5, 6, 7, 9 and 11.

The “Social Register” is an incorporated company in which the testator held the entire capital stock. The profits earned by the company in his lifetime made this stock of great value, and it forms a large part of the testator’s residuary estate. He had established the business and evidently was proud of its financial success and of the position he believed it had attained among those who consider themselves socially prominent. Pie also believed that the stock would be sought after, arad he was concerned that it should not pass into the hands of those who might not maintain what he deemed was-a high-class social directory, and, with these thoughts in mind, he admonished his trustees not to dispose 'of the stock hastily, but to await a flattering offer, which means an adequate price, for the benefit of the objects of his bounty, and not to deal with speculators, but to endeavor to find purchasers who would carry on according to a standard which the trustees might believe t.o be the testator’s standard.

The words which stand at the beginning of the paragraph numbered 5, and which the complainants maintain are mandatory words, in my judgment, refer to the whole trust estate and to the administration and disposition thereof under paragraphs 5, 6, 7, 9 and 11, and do not apply solely to the management of the “Social Register” business, or to the sale of the stock thereof, and, in determining their true import, consideration must be given to the disposition the testator intended to make of his residuary estate as disclosed by the whole will. I cannot believe that the testator intended that this stock should not be sold in case his trustees failed to find a purchaser who would answer, in all particulars, the description given by him, or that, failing to find such purchaser, he intended that his trustees should continue the business, perhaps, with depreciating profits, until their deaths, and that thereafter other trustees would be appointed to succeed them as managers of the “Social Register,” when he could not know who the succeeding trustees would be, or whether they could or would conduct the business along the lines laid out by him, or maintain the high standard he had set.

The stock may depreciate in value, and, after efforts have failed to meet the instructions of the testator, as given in paragraph 5, it certainly will not serve the intention of the testator that certain persons shall benefit by the income from and the proceeds of the sale of the stock; that the trustees shall hold it, if no purchaser can lie found who will agree to conduct the business according to the testator’s business method and standard. Paragraph 12 gives the trustees unrestricted power of sale of the stock, notwithstanding what the testator had previously said in paragraph 5, and it cannot be doubted that should the trustees sell the stock under such power of sale to any person at a proper price, the title transferred could not be questioned, for such limitations as paragraph 5 places on the trust cannot operate against a title emanating under a proper exercise of an absolute power of sale. Centenary Fund v. Lake, 72 N. J. Eq. 808.

By paragraph 12 the trustees are directed and authorized to conduct the “Social Register” for the purpose of providing the income necessary to pay the annuities and other charges in the will. Not only this provision limits the time for the trustees to continue to hold the stock, but they cannot continue the trust beyond the period which must arrive for final distribution of ihe trust estate, and since that period will arrive at a time which does not offend the rule against perpetuities, the instructions and obligations imposed on the trustees cannot, at the most, amount to more than a prohibition against selling the stock before final distribution, in case no purchaser is found prior to that time who will satisfy the directions of the testator. If no such purchaser is found and the stock is not sold, it will vest in and pass to those entitled to receive the trust estate on final distribution.

In considering the meaning and intent of the directions with regard to the sale of this stock, I think the duty and liability of the trustees (which the law casts upon them) tq the beneficiaries have a bearing. Under Comp. 8Lai. p. 2271 84, the trustees would have the right, even had these directions been omitted from the will, to continue to hold the stock, and they would not be accountable for loss if they exercised good faith and reasonable discretion in continuing to hold it, but, notwithstanding the testator’s directions, they cannot be relieved from liability for loss if they refuse a flattering oiler from one who declines to agree to conduct the business upon the lines and at the standard established by the testator, after all reasonable efforts have failed to obtain a flattering offer from a purchaser who will so agree.

My conclusion, is that the words the testator used at the beginning of paragraph 5, when applied to the stock of the "Social Begister,” and when considered in connection with the manner in which lie disposed of the residuary estate, were employed in the sense of a request, a recommendation or advice and not as an order, direction or command (Stephens Executors v. Milnor, 24 N. J. Eq. 358; Case v. Hasse, 83 N. J. Eq. 170), and that the will does not direct the trustees to hold this stock for a period which may be longer than lives in being and twenty-one years thereafter.'

Coming now to consider paragraph 6. It is argued that an equitable conversion of the testator’s real estate took place at the time of his death, and that the whole residuary estate held in trust must be considered as personalty, and that the rules concerning a bequest of income from personalty, when no disposition of the personalty itself is made, must be applied. The rule as to equitable or notional conversion of real estate into personalty is, that when á testator has given positive direction to his executor to sell his real estate and distribute the proceeds as money, or the provisions of the will require the executor to exercise his power of sale, the real estate will be considered as having been converted into money as of the date of the testator’s death. If the executor is given merely an authority to sell in his discretion, the real estate retains its character as land until it is actually sold, but, when sold, the proceeds thereof become personalty and pass as such. Wurts v. Page, 19 N. J. Eq. 365; Cook v. Cook, 20 N. J. Eq. 375; Keen v. Plume, 82 N. J. Eq. 526; Trenton Trust Co. v. Moore, 83 N. J. Eq. 584; affirmed, 84 N. J. Eq. 194; Aitken v. Sharp, 93 N. J. Eq. 336. Paragraph 4 of the will gives and devises the residue of the estate, “real, personal and mixed,” in trust, and paragraph 12 authorizes and empowers the executors and trustees to sell and dispose of the saíne, and, in their discretion, to call for payment of and to sell and transfer all property and securities in which the estate may be invested. This is not a’positive direction to sell, and the will contains no direction as to how the corpus of the residuary estate shall be divided. Until the time arrives for the trustees to pay over the corpus, it cannot be said that the will requires the trustees to exercise their power of sale, and, when that time arrives, those entitled to receive the estate may elect to take the property in common, or the estate may be susceptible of actual division among them. My conclusion is that as none of the testator’s real estate has been sold, it retains its character as real estate and must be considered as such.

The complainants attack the validity of the four subdivisions of paragraph 6, while certain of the defendants argue that these subdivisions must be held to include a bequest and devise of principal as well as income, because, there being no bequest or devise of the principal after the termination of the specific bequests, the testator must have intended to give to the beneficiaries designated an absolute estate in the corpus. The rule applicable is that where there is a bequest, of income from real or personal estate, or from both, without limit of time, or gift over which can operate, it is a bequest of principal, if there be no expression in the will of a contrary intent. The rule applies whether the gifitt of income be direct or through the intervention of a trustee, and is not to be defeated because some duty in realizing assets and securing and paying the income is east upon the trustees. Traphagen v. Levy, 45 N. J. Eq. 448; Passman v. Guarantee Trust Co., 57 N. J. Eq. 273; Frelinghuysen v. Frelinghuysen, 80 N. J. Eq. 484. Subdivisions (a) and (c) of paragraph 6 are similar in their provisions, and direct that one-fourth portion of the income of the residuary estate be paid, respectively, to Josephine He Ronge and Annie Townsend Ashmore, in each case “for and during her natural life.” These subdivisions expressly limit the period for the payment of income to these beneficiaries, and while there is no disposition made of the portions cf the residuary estate from which such income is to be derived, they express the intention of the testator that the interest of these beneficiaries in his residuary estate shall not exceed a life interest in income. This is a valid gift of income for life to the beneficiaries named and is not invalid, because the will fails to make provision for the disposition of the corpus from which such income is derived. As to such corpus the testator died intestate, and the same will pass to his heirs-at-law and next of kin, the trustees holding it for those entitled. Skellinger v. Skellinger, 32 N. J. Eq. 659; Smith v. Smith, 54 N. J. Eq. 1; affirmed, 55 N. J. Eq. 821; Camden Safe Deposit Co. v. Guerin, 89 N. J. Eq. 556.

By subdivision (b) of paragraph 6 the testator directed his trustees to pay one-fourth portion of the income of his residuary estate annually to Natalie 'Wilmer Wood during her natural life, and upon her demise to pay said income annually to her heirs without limit as to time. The will makes no disposition of the portion of the residuary estate from which this income is to be derived. This provision expressly limits the period for the payment of income to Natalie Wilmer Wood, and amounts to a life interest in income to her, and, under the rule stated in Traphagen v. Levy, and the other cases above cited, an absolute bequest and devise of the corpus of the residuary estate producing such income to the heirs of the life tenant. The provision of this subdivision that, after the death of Natalie Wilmer Wood, the income shall be paid annually to her heirs, without limit of time', does not offend the rule against perpetuities, because the gift of income to such heirs carries with it the corpus, which vests immediately to such heirs.

By subdivision (cl) oí paragraph 6 the testator directed the trustees to pay one-fourth portion of his residuary estate to three persons named during their joint lives and to the survivor of them, and, after the death of the survivor, to pay such one-fourth portion of income to Charles K. Beekman, without limit of time. No disposition is made of the portion of the residuary estate from which this income is to be derived This provision amounts to a life interest in income, to the three .beneficiaries first named and to the survivor of them, and, under the rule last mentioned, an absolute bequest and devise of the corpus of the residuary estate producing such income to Charles K. Beekman, which vests immediately in him.

Finally, it is argued that the provisions of paragraph 10, with reference to certain real estate which forms part of the residuary estate and which the Baltusrol Golf Club might desire to acquire, is void as against the rule concerning perpetuities. The reason for this objection is not clearly stated, but I assume it to be claimed that this paragraph gives the club a perpetual right to purchase this real estate, and that, the provision being void, the testator died intestate as to the real estate in question. If the paragraph is void for the reason stated, it would not affect the other paragraphs of the will (McGill v. Trust Co., 94 N. J. Eq. 657; affirmed, 96 N. J. Eq. 331), but would affect only the interest which the club might have thereunder. Under paragraph 4 this real estate falls into the testator’s residuary estate, subject to the club’s interest therein under paragraph 10, and, if the latter paragraph is void, the real estate will remain in the residuary estate. But I do not consider that paragraph 10 gives the club any interest or right in the real estate therein referred to, the words used being merely precatory words recommending that the club receive special consideration from the trustees, and, in case it should make an offer to purchase, be given favorable terms. It might be noted here that the club was made a defendant to this suit, and that it has not answered or set up any claim or fight under the will.


author: Church, Y. 0.

text:
    United States Trust Company of New York, complainant, v. Francis Speir and Morris B. Mead, as executors, et al., defendants.
    [Decided December 8th, 1924.]
    The* court of chancery lifts power to construe a will, but will not permit counsel to make their own construction by consent; the question or questions, concerning which construction is sought, must be submitted to the court, which alone has the power of interpreting the testatment; the endeavors of counsel can extend no further than to present their views by way of argument.

      Mr. J. Harry Hull, for the complainant.

      Messrs. Pitney, Hardin & Skinner, for the- defendants.
   Church, Y. 0.

This is a case for the construction of a will.

Before proceeding to consider the merits of the case itself, it might be proper to state that when counsel appeared before me a consent decree construing the will, which the court had never seen, was presented to me for approval, and the brief of the solicitor for the complainant mentioned the fact that such a consent decree was submitted. At that time I said that such a course is impossible, and I now reiterate that statement. It should be thoroughly understood that a will cannot he construed by consent of counsel, but must be construed by the court after careful consideration of its contents, and should counsel disagree with the court’s findings, their remedy is not by consent but by appeal. In response to my statement from the bench counsel have submitted the will to me, and I will endeavor to' construe it.

The will in question is that of Edwin EL Mead, who died on February 3d, 1895, a resident of Essex county, and his will was duly admitted to probate. By it, in the second clause, he left his property to his wife for life, and then follows the following:

“And upon her death to divide the same into as many equal parts as we shall leave children us surviving, and children then dead, who may leave child or children, then them surviving.
“If our daughter is then living one of said parts to be held in trust by said Trust Company to pay the net income therefrom quarter yearly during the term of her natural life to said daughter, and upon the death of said daughter to divide the principal of such part equally among her children, if she shall have any. in equal shares: in default of children to pay said principal to her brothers, if living; if such brothers, or either of them, be dead, then the share such deceased brother would have received to the children of such deceased brother, if any, in equal shares, and, if both brothers be then dead, to the children of such brothers, share and share alike.
“The other such parts ro be held in trust by said Trust Company to pay the net annual income from one part quarter yearly during the term of his natural life, to each of my sons, respectively, if both shall then be living; if either be dead, without children, then to divide such share and add the same to the respective trust funds created for his sister and his brother in this my will, then to become parcel thereof; but if either son be dead, leaving child or childrei him surviving. the income of such fund, which the parent would have received. shall go to such child or children during their respective minorities, the principal to such child or children, and be equally divided between them, if more than one, as they respectively attain majority.
“If either of my sons leaves a wife and children, the wife of such son shall be testamentary guardian of the property of her children, and if my daughter shall die leaving children, my son Morris B. Mead shall be testamentary guardian of the children of such daughter during their minority, each principal to be divided among said respective children on.attaining majority.
“In case both of my sons’ shall bo dead, tlien the principal sums of which said sons would have been the beneficiaries shall go to the child or children of said sons, per capita; or if only one shall leave children, then such children shall take the whole of such principal sum of which my sons would have been the beneficiaries, in equal shares.”

The property constituting the trust estate was transferred to the complainant. On September 4th, 190'}', the widow died, and was survived by her children, Morris B. Mead, Winthrop L. Mead and Margaret Mead Graves, who were the only children. No other children having been bom to the testator, the complainant duly administered the trust under the terms of the will. On April 5th, 1923, Winthrop L. Mead died leaving him surviving two children, Roderick Fletcher Mead and Lorraine Mead. Upon his death the trust for his benefit ceased, and the question now arises as to the disposition of his share in the estate.

The second clause in the will does not provide for the dis position of the trusts created for the sons should they die after the death of the widow, but it does contain a provision as to the share bequeathed in trust for the daughter after the death of the widow. That provision directs that upon the death of the daughter her share shall be divided equally among her children. It should be noted that the second clause says that “if either of nay sons leaves a wife and children the wife of such son shall be testamentary guardian of the property of her children •* * * each principal to be divided among said respective children on attaining majority.” A careful reading of the entire second clause convinces me that the scheme the testator had in mind was that each of his children should receive the income of the trust set aside for his benefit, and that at his death it should go to his children, whether he survived his mother or not. The fact that he provided that children oE a son should take their father’s share, if the father should predecease testator’s widow, and made no mention of the fact that they should taire his share if he survived testator’s widow, is to my mind an unintentional omission. I think it was clearly his intention that his grandchildren should take their father’s or mother’s share, no matter when the father or mother died.

I shall therefore advise a decree that the trust fund held by complainant for the benefit of Winthrop L. Mead shall now be paid equally to Roderick’ F. and Lorraine Mead, his children.


author: Church, Y. C.

text:
    Charles I. Seidler, complainant, v. Branford Restaurant, Incorporated, a corporation, defendant.

      [Decided December 8th, 1924.]
    1. When a court of equity takes possession of property for the purpose of protecting and preserving it for the benefit of the parties interested, the costs of administration are entitled to priority of payment, regardless of the nature of the liens and claims thereon of the litigants.
    2. The expenses of the administration of a receivership are entitled to priority in payment over a chattel mortgage covering the g’oods in the receiver’s hands.
    On bill, &C.
    dir. Harry Green, for the receiver.

      Messrs. McCarter & English, for the defendant.
   Church, Y. C.

The receiver in this case, duly appointed by the court, applied to confirm a public auction sale of the defendant corporation to one Thomas P. Argyris for $9,000. Argyris also held a chattel mortgage on the assets, the validity of which was challenged by the receiver. The receiver applied to the court for leave to sell the assets free and clear of the lien of the chattel mortgage, the lien, if any, to attach to the proceeds. On the return of the rule the mortgagee offered no objection, but asked the court to pass upon the validity of the mortgage, first, so he would know how to bid at the sale. The court adjudged the mortgage valid and the mortgagee consented to the sale of the assets free and clear of the lien of his chattel mortgage, the lien to attach to the proceeds. The court approved the terms and conditions of the sale, which provided, among other things, that the purchaser should pay a deposit of twenty-five per cent, at the time of the sale and the balance upon the delivery of the goods, and that the sale was subject to the confirmation of the court. The assets were sold to Argyris for $9,000. The receiver did not have funds with which to pay administration expenses, including receiver’s allowances, and for the use and occupation of the premises during the receivership, and applies to the court to have the said mortgagee, and successful bidder at the auction, pay reasonable allowances to him, his counsel, appraisers’ fees and for rent, instead of the $9,000 bid at the sale.

It should be noted the receiver has conducted the restaurant business since the time of his appointment, on July 3d, 1924, by order of the court, and with the knowledge and consent of the mortgagee. It was agreed by all parties that the closing of the business would destroy its value and the value of the mortgagee’s security. The receiver conducted the business carefully and to the great advantage of the estate. When he took it over it was a losing proposition. By his constant and careful attention he made it a going-concern, so that it finally became an earning proposition of approximately $150 or $200 a week. On July 14th the court made a rule, with interim restraint, restraining the mortgagee from foreclosing- the chattel mortgage without the consent of the court. The mortgagee did not apply to the court for leave to foreclose or for leave to modify, thereby acquiescing in the rule. The receiver was allowed $1,800 bv the court for himself and counsel, $50 each for appraisers, said mortgagee to' pay or assume the payment for the use and occupation of the premises during the receivership, and to pay auctioneer’s expenses.

The question before the court now is: Are the expenses of administration entitled to priority in payment over the chattel mortgage? Sections 85 and 86 of the Corporation act provide as follows :

“Before distribution of the assets of an insolvent corporation among the creditors or stockholders, the court of chancery shall allow a reasonable compensation to the receiver for his services and the costs and expenses of the administration of his trust, and the costs of proceedings in said court, to be first paid out of said assels.
“After payment of all allowances, expenses and costs, and the satisfaction "of all special and general liens upon the funds of the corporation to the extent of their lawful priority, the creditors shall be paid proportionately to the amount of their respective debts, excepting mortgage and judgment creditors, when the judgment has not been by confession for the purpose of preferring creditors.”

In Attorney-General v. Linden Cemetery Asso., 90 Ñ. J. Eq. 404, the receiver did not have enough money to pay allowances to himself and counsel. Vice-Chancellor Baches permitted him to use funds derived from the sale of lands to defray his allowances and the allowances of his counsel, even though the vendor of said lands claimed an unpaid vendor’s lien. He says: “The rule is thoroughly settled that when a court of equity takes possession of property for the purpose of protecting and preserving it for the benefit of the parties interested, the costs of administration are entitled to priority of payment, regardless of the nature of the liens and claim? thereon of the litigants. This is so fundamental to the administration of justice and so generally recognized that citation of authority is unnecessary.” This was affirmed by the court of errors and appeals, and appeared per curiam, 91 N. J. Eq. 329.

In Jeffers v. New Jersey and Pennsylvania Railroad Co., 86 N. J. Eq. 68, the court made allowances to the receiver and counsel, but the receiver did not have sufficient money to pay the same, and Vice-Chancellor Iilowell said that on both principal and authority the compensation of the receiver and his counsel must be paid in full out of the fund in the receiver’s possession, citing Chesapeake and Ohio Railway v. Atlantic Transportation Co., 62 N. J. Eq. 731. This was approved by the court of errors and appeals, 86 N. J. Eq. 402. See, also, Lembeck v. Jarvis Terminal Cold Storage Co., 68 N. J. Eq. 352. The United States circuit court of appeals, in Provident Life and Trust Co. v. Camden and Trenton Railway Co., 177 Fed. Rep. 854, followed the above case, and said (at p. 862) : “The receiver’s control undoubtedly conserved the mortgaged property and kept it intact as a going concern.” The court allowed compensation to the receiver over pre-existing valid mortgages.

In re Sulk, 74 N. J. Eq. 736, Chancellor Walker, then vice-chancellor, discharged a receiver appointed in lunacy proceedings, upon finding that a man was of sound mind, but allowed receiver compensation for his sendees, the petitioner the taxed costs of the proceedings, including a counsel fee, and expenses reasonably and propertly incurred. See, also, 23 Rul. Cas. L. 109 § 119; Pom. Eq. Rem. (2d ed.) § 164-1; High Rec. (4th ed.) 961, 962 § 809; 1 Clark Rec. (18th ed.) 886; Atlantic Trust Co. v. Chapman, Receiver, 208 U. S. 360; 34 Cyc. 351; Hatch v. Van Der Voort, 54 N. J. Eq. 511.

Also, Stokes v. Knickerbocker Investment Co., 70 N. J. Eq. 518, on an ex parte application; upon the hearing it appeared that the receiver should be discharged, and the court declined to continue the receivership'. Nevertheless, Mr. Justice Bergen, then vice-chancellor, said that the reasonable expenses of the receiver should be paid by the defendant company. Also, see Sewell v. Cape May & S. P. R. R. Co., 9 Atl. Rep. 785.

On this statement of the law, I am of the opinion that the receiver should be paid his reasonable and proper allowances out of the funds before any distribution is made. If it were not so, the court would not be able to protect its appointees, who, on their appointment, become officers of the court, and as such are entitled to the court’s protection. If a receiver cannot be assured of reasonable compensation, it would be difficult for the court to get proper men to. occupy these positions. It may be in any receivership matter that the court of errors and appeals would say that the receiver was improvidently appointed, but, in my opinion, the court would protect the receiver thus appointed if the court had jurisdiction to make the appointment, and the receiver had discharged his duties in a manner which convinced the court, that he should have reasonable compensation.

I shall therefore find that the receiver is entitled to his allowances according to the order in this matter heretofore advised.

It should be noted that the order has since been complied with, although the allowances and rent were paid to the receiver under “protest,” and the receiver has delivered possession of the assets to Argvris, and has also delivered a bill of sale to him.


author: Church, V. C.

text:
    Gustav George Dylla, petitioner, v. Louise Pils Dylla, defendant.
    [Decided December 10th, 1924.]
    Evidence examined, and held that the defendant is guilty of the adultery charged.
    On petition for divorce.

      Mr. Merritt Lane, for the petitioner.

      Mr. Milton J. Finkelstem, for the defendant.
   Church, V. C.

This is a suit for divorce on the ground of adultery brought by Gustav Dylla against his wife, Louise Dylla.

The testimony shows that the couple were married July 9th, 1921. While on their wedding trip, the defendant told her husband she was not going home with him. However, she did return to the home of her husband for one day, and left immediately thereafter. At the end of six weeks he went to her and asked her to return, and she told him to “go to hell.”

The married life of the parties lasted aboui five and a half months-; then the defendant began to- pack up her belongings preparatory to leaving her husband, and during these operations she refused to occupy the same bed with- her husband. When she left she spread her husband’s clothes upon the floor, simulating a corpse; five wax candles and a cross surrounded the head; on a pasteboard plaque were the legends “Merry Xmas, 1921,” and “Happy New Year, 1922.”

The defendant admits that this arrangement of clothing was made with her knowledge, and she was present while this insulting figure was so- arranged.

The petitioner and defendant went to the office of Judge Turton, a member of the bar of this state, and a judicial officer. The petitioner accused her of going about with other men. She made fun of him, called him her “Greek God” and a “sheik.”

The story of the petitioner of his efforts to make his wife continue to live with him is corroborated by Judge Turton and by the testimony of one Savery.

The acts of adultery set up in the petition are shown by the testimony of the husband, Alfred Savery and Ernest Zimmerman. On the nights of August 7th,- 9th and 14th, 1923, these witnesses saw the defendant and the co-respondent go out together to a theatre, return, go into the apartment of the defendant, kiss each other and then turn out the light.

The answer of the defendant to the charge that the corespondent had been in her bedroom was that her cousin, Marie Xnief, was living with her mother and was sleeping with her on the nights on which the alleged adultery was committed. Her testimony is very conflicting, and, as a matter of fact, I find that she was not where she swore she was, and did not sleep with her cousin.

The testimony of the co-respondent is unworthy of belief. He admits that he often took the defendánt out during the month of August and went into her apartment, but he denies the adultery.

One witness, Mrs. Barrow, was put upon the stand, and testified that in August, 1923, she thought that the corespondent was living with her, but upon cross-examination she refused to state that he was really living with her. Her excitement on the stand was so great that she was withdrawn as a witness.

Considering the facts in the case, as presented in the testimony before me, I shall find, as a matter of fact, that the defendant is guilty of adultery, and I shall advise a decree accordingly.


text:
    Health Products Corporation, a corporation, complainant, v. William H. A. Weber et al., defendants.
    [Decided December 15th, 1924.]
    Where an option to purchase was given in a lease, which was recorded, and the owner of the land permitted a stranger to enter upon it and take partial possession without notice to the lessee, whereupon the lessee obtained an injunction against the lessor and the stranger, and notified the lessor of his intention to exercise the option, and deposited in court a sum of money in payment of the stipulated purchase price, less the mortgage encumbrances, and made a demand for a proper deed of the land, the continuance of the injunction until final hearing is discretionary with the court, and under the above circumstances the injunction will be continued until final hearing.
    Ou bill,.&c.

      Mr. John A. Bernhard, for the complainant.

      Mr. Harry TJnger, for the defendants.
   Church, Y. C.

The defendant in this ease, Weber, entered into a written lease with the complainant, Health Products Corporation, for the premises situated at 10-12 Washington avenue, Irvington, New Jersejr, for a period of three years, commencing October 1st, 1924, and in the.lease inserted an option clause to sell the adjoining half of the premises, 14-16 Washington avenue, to the complainant, at" a price “not exceeding $60,000, within a period of three juars from the date of the lease.” At the time of the execution of the lease Weber occupied 10-12 as a storage warehouse, and agreed to continue his occupation so that he could give immediate possession of the adjoining premises when the complainant exercised its option to purchase.

The written lease was recorded. Weber, about the middle of October, permitted one Igna.tz Haber to enter into partial possession of the promises without notice. Thereupon, the conrplainant made an application for a preliminary injunction. Weber has not filed an answer. Haber alone defends.

On October 23th, 1924, complainant notified Weber of its intention to exercise the option. The sum of $22,723.06 has been deposited with the clerk in chancery in payment of the purchase price above the mortgage encumbrances, and a demand has been made for a proper deed to the property.

The question presented to' me is whether the preliminary injunction shall continue until (Inal hearing, or whether it shall be dismissed. As I view it, it is discretionary with the court to grant a dismissal of the injunction or to hold the matter until final hearing.

I have carefully read the briefs of the complainant and defendant in this matter, and I am satisfied that there is enough in the matter to- justify me in holding the case until final hearing.

I shall therefore advise that the temporary injunction in this matter be continued until the final hearing.


text:
    Robert Henderson, complainant, v. Thomas Henderson et al., defendants.
    [Decided December 22d, 1924.]
    1. A contract entered into with a judicial officer for sale of property is no different from any other contract, and courts will decree performance thereof in the same manner as they would between private parties.
    2. Where a sale has been made in good faith and there is no fraud, the subsequent offer of a higher price is not in itself sufficient to prevent confirmation of the lower bid.
    On bill, &C.

      Mr. Joseph B. Strieker, for the complainant.

      Mr. William A. Spencer, for the receiver.

   Church, Y. C.

Frank Aan Syckel filed a verified petition with this court setting out that on August 26th, 1911, Charles K. Seaman was appointed receiver in the above-mentioned case for the partnership of Thomas Henderson and Robert Henderson. On September 6th, 1911, the receiver took possession of the assets of the property of the partnership, including a parcel of land on Jefferson street, Perth Ambojo On June 21st, 1917, title and possession having passed to him, the receiver entered into an agreement with Emil Stremlau for the sale of the property for $6,500. Robert Henderson and Thomas Henderson, who comprised the defunct partnership, and their wives, joined in the agreement of sale.

A deposit of $100 was paid oar the signing of the agreement, the balance to be paid on delivery of the deed. The contract was on the same date assigned to Yan Syckel. On October 28tli, 1923, one of the partners, Thomas Henderson, died, leaving a will in which he named his wife as executrix and devised his estate to her. Frank Yan Syckel went into possession of the premises and has remained in possession. Since the agreement of sale he has frequently asked for a delivery of a deed, but the receiver has failed to so deliver.

It also appears that the receiver has filed no inventory, nor done anything towards the administration of the estate. It was further stated in the argument that the receiver has recently taken an assignment to himself, individually, of a mortgage of $3,000, covering the premises.

Upon the filing of the petition, an order to show cause why the receiver and the Hendersons should not be ordered by this court to carry out the contract and deliver the deed to the petitioner, was entered. The order was served upon the receiver, Robert Henderson, Evelyn Henderson and Annie A. Henderson, individually, and as executrix of Thomas Henderson. Upon the return of the order to show cause, the receiver was represented by counsel, no one appearing for the other parties. No answer was filed to the petition, and the allegations as above set forth were admitted in open court by counsel for the receiver. The only reason the receiver advanced for his unwillingness to complete the sale was that the property has risen in value since 1917.

A contract entered into with a judicial officer for the sale of property is no different from any other contract. Courts will decree performance in the same manner as they would between private parties. Cropper v. Brown, 76 N. J. Eq. 406.

Where a sale has been acquiesced in it will constitute a performance of the contract even though no formal confirmation has ever been had. 35 Corp. Jur. 50.

The petitioner in this case has been in possession of the property with the receiver’s permission for some years. Failure to give notice to creditors is not fatal. 35 Corp. Jur. 45.

Where a sale has been made for a fair price in good faith and there is no fraud, the subsequent offer of a higher price is not in itself sufficient to prevent confirmation of the lower bid. Adams v. Lambertville, &c., 84 N. J. Eq. 96; Krieger v. Scheuer, 86 Atl. Rep. 534.

On the return of the order to show cause the Hendersons, who were served, did not appear. In my opinion they were not necessary parties, as title to the premises passed to the receiver on his appointment. All the allegations as set forth in the petition having been admitted in open court, except as to value, I shall advise an order directing the conveyance as prayed for.


text:
    Fanny Cowan, petitioner, v. Elias Cowan, defendant.
    Where a husband in fact deserted his wife under circumstances that would entitle her to a divorce, a release given by the husband to the wife dealing almost entirely with real estate, 'but providing as a consideration the release of the husband from maintenance and support of the wife, does not create a consent by one spouse to the other as to the other's desertion.
    On petition for divorce.

      Mr. William Greenfield (by Mr. Merrill Lane), for the petitioner.

      Mr. Frank'E. Bradner, for the defendant.
   Church, Y. C.

This is a petition by the wife against the husband for divorce on the ground of desertion.

They were married October 19th, 1901. The husband left the home on April 13th, 1922, and since that time has remained away. The answer admits the leaving, but says the husband was forced to leave by the wife, who told him to get out, which direction he obeyed.

The wife was a dressmaker and was industrious and prosperous in her business. The husband, apparently, was an idler and would do- little or nothing to support his family. Mrs. Cowan, with the proceeds of her business, purchased several pieces of real estate, and, according to the testimony, offered to- pxxt them in the joint names of herself and her husband, and actually did put one piece of property in their joint names. Finally, his irresponsibility forced her to form a real estate corporation, to which the properties were conveyed. A suit in chancery then originated, whereupon the wife paid the husband $ 10,750, and he signed certain releases, to which she consented.

The first question to decide is whether the desertion was on his part or, constructively, on hers. Several witnesses were called to corroborate the statements of Mrs. Cowan. Clara Sanders says that the husband was constantly complaining of her method of running the house, and that she did everything possible to satisfy him. The son, Bernard Cowan, corroborates his father’s final leaving, and also testifies that the father told him that he did not care to- return to his wife, because “I like it better this way.”

In the course of time the daughter, Estelle, died, and the father came to the house but declined to have anything whatever to do with his wife, although he stayed in the house several days. This also- is corroborated.

There is some testimony as to- cruelty on the part of Mr. Co-wan, as to his striking hex, throwing crockery on the floor, &c.

I am satisfied, after considering the testimony of both sides, that the husband left the house and actually deserted the wife.

The remaining question to- be- considered is whether or not the release signed at the time- of the settlement as to the property was an agreement by the wife to live separate axid apart from her husband, thereby an acquiescence on her part. Without reciting the release in full, it is sufficient to say that it deals almost entirely with the real estate owxxed by the wife and by the husband and wife jointly. One clause is that “in consideration of my wife, Eanny Cowan, releasing me from the support and maintenance of her, I do quitclaim any and all right of curtesy, &c., in the real estate.”

The defendant’s counsel does not say that this is an absolute agreement to live apart, but it is an implied agreement. I cannot agree with him as to this.

The case of Power v. Power, 66 N. J. Eq. 320, was one as to the effect of an agreement, which in express terms provides for the separate living of the parties. The court of errors and appeals said: “The effect upon this desertion produced by the agreement * * * requires * * * consideration. It is certain that the agreement did not give to either spouse> as against the other, the right to continue the separation. Notwithstanding it, each was entitled to demand of the other a resumption of marital relations.”

This case is followed in Hollingshead v. Hollingshead, 91 N. J. Eq. 261, and in Young v. Young, 94 N. J. Eq. 155.

These cases hold, in substance, that circumstances under which the agreements were executed should be taken into consideration in order that the court may determine whether or not such agreement creates a consent by the one spouse or the other as to the other’s desertion.

I am of the opinion that the agreement and release in evidence in this case were intended to relate to the disposition of the real estate only, and, having found as a matter of fact that the husband deserted the wife, I also find that the agreement in question is not a consent on her part to his desertion.

I shall therefore advise a decree of divorce in favor of the petitioner.