author: Backus, Y. C.

text:
    New Jersey Painting Company, complainant, v. Local No. 26, Brotherhood of Painters, Decorators and Paper Hangers of America; Brotherhood of Painters, Decorators and Paper Hangers of America, District Council No. 10; Brotherhood of Painters, Decorators and Paper Hangers of America, and William Wylie and Herman Landow, defendants.
    [Decided November 21st, 1923.]
    1. The law casts upon a trades union the burden of justifying the enforcement of its laws by strike.
    2. A union, after having set up wage scales for its members in their various localities which employers of labor must abide by, and reckon with, may not discriminate against employers in the matter of wages upon the ground that the employer is not local to the place of work.

      3. A trade union’s constitution, providing that where there is a difference in the wage scale of two cities, all members employed on a job in one of the two cities by an employer from another city shall receive the higher of the two wage scales, is in unlawful restraint of trade, and a strike based thereon will be enjoined.
    On final hearing.

      Mr. Merritt Lane, for the complainant.

      Mr. Henry Oarless and Mr. Morris Hill quit (of the New York bar), for the defendants.
   Backus, Y. C.

This is a bill to enjoin a strike. The complainant made a contract to decorate Bamberger’s store in Newark and for that purpose hired union men at Newark union wages, $8 a day. The local of the Painters’ and Decorators’ Union, claiming that the complainant is a New York concern, called a strike because the complainant refused to pay New York City union wages, $9 a day, as ordained by the national body of the union by an amendment to its constitution passed in September, 1921, which reads:

“Where there is a difference between the wage scales of two cities, all members employed upon a job done in one of the two cities by an employer from the other (whether sent from the city in which the employer’s place of business is situated or hired in the city where the work is done) shall receive the higher of the two wage scales.”

The law casts upon the union the burden of justifying the enforcement of its laws by strike. Lehigh, &c., Co. v. Atlantic S. & R. Works, 92 N. J. Eq. 131. None of the usual grounds for strike, such as wages, working conditions, the integrity of the union, strife for power in the industrial field and the like, all well recognized in law and upheld by the courts as lawful, is involved. The extra dollar a day wage is incidental and only to be accidentally earned. The reason for the amendment and the argument to support it is, in substance, that the better class of union workmen, as a rule, flock to the larger cities, where, because of their greater skill and efficiency, their services command the higher union wage; that when they are sent to communities where a lower union wage prevails, the local, and perhaps less efficient worker, working at a lower union scale, becomes dissatisfied; that the difference in wages on the same job breeds discontent, and that, on the whole, the welfare of the union, not of the men, requires that under such circumstances the members be on a footing of equality of wage, whatever may be their qualification as artisans or their capacity or willingness to produce. Another law calls for the employment of at least fifty per cent, of local workmen. The assigned reason as a justification in law for the strike is manifestly without merit. In its self-serving pursuit the union entirely overlooked the effect of its action upon trade, and the consequences to the employers of labor. It cannot be denied that the union may arbitrarily fix a uniform scale of wage applicable to all its members, or that it may classify its members and arbitrarily fix a uniform scale based on qualification, or that it may localize such uniform scale, and strike to enforce its demands, however oppressive they may be, and the strike will not be interfered with by the courts if it is lawfully carried on. The reasonableness or unreasonableness of the demands would not be regarded as a justifiable question, but one to fought out by capital and labor by their own methods and with their own weapons. National Protective Association v. Cumming, 170 N. Y. 315; Bossert v. Dhuy, 221 N. Y. 342; Gill Engraving Co. v. Doerr, 214 Fed. Rep. 111. But it cannot be admitted that the union may, after having set up wage scales for its members in their various localities, and which employers of labor must abide by, and reckon with, discriminate against employers, in the matter of wages, based upon the illusory ground that the employer is not local to the place of work. Such discrimination would be in unfair restraint of trade, inimical to public welfare and in violation of public policy, and any attempt of the union to impose its will by the coersive means of strike would be an unwarranted and unlawful exercise of the power of might. The principle upon which the law interdicts such union activity has been often and clearly expounded by the courts. The authorities are numerous and illustrative. Some of them are: Gompers v. Buck Stove & R. Co., 221 U. S. 418; Berry v. Donovan, 188 Mass. 353; Pickett v. Walsh, 192 Mass. 572; Wilcult & Sons v. Driscoll, 200 Mass. 110; Burnham v. Dowd, 217 Mass. 351; United Shoe Machinery Corp. v. Fitzgerald, 237 Mass. 537; Haverill Strand Theatre v. Gillen, 229 Mass. 413; L. R. A. 1918 C. 813; Grassi Contracting Co. v. Bennett, 160 N. Y. Supp. 279; Baldwin Lumber Co. v. International Brotherhood, &c., 91 N. J. Fq. 240; Currier & Sons v. International Molders’ Union, 93 N. J. Eq. 61; Lehigh Co. v. Atlantic S. & R. Works, supra. That the operation of the amendment -would be in unlawful restrain of trade is too obvious to require extended discussion. Its effect would be practically to bar a foreign contractor, ruled as he is by the higher union wage scale at his place of business, from successfully competing with a local contractor, for, in bidding, he would necessarily have to estimate on the basis of his home wa^e scale as against the local contractor’s bid at the local and lower scale. This, manifestly, would destroy fair and honest competition. In the instant case it operates to the injury of a citizen of another state, and the union seeks to do, in effect, what the states are forbidden to do by the United States constitution. Article 4, section 2 of that instrument provides that: “The citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states.” The meaning and widespread force of-this article is laid down in Paul v. Virginia, 8 Wall. 168, and by Mr. Justice Pitney in Travis v. Yale and Towne Manufacturing Co., 252 U. S. 60, 78. In Ward v. Maryland, 12 Wall. 418, the supreme court held that it was to encourage commerce between citizens of the state of the union, and deeclared void as unconstitutional the act of Maryland, imposing a higher tax on traders from other states than that imposed upon resident traders. While it may be that this constitutional limitation is binding only upon the states in their sovereign capacity (United States v. Morris, 125 Fed. Rep. 322), it is nevertheless declaratory of public policjq interstate as well as intrastate, and it would seem that if a state of the union cannot do what a nation-wide labor union seeks to do—discriminate between citizens of the states in their privileges and immunities—that such discrimination is unwholesome to state and nation and condemnable in law.

Diversity of citizenship in the instant ease is only called into play to emphasize my view. The amendment would be just as vicious, and not an iota less harmful to the public, were its operations confined to state lines if different wage scales exist in different communities. The extent, not the character, of the wrong would be modified.

My conclusion is that the strike is for an unlawful purpose and an injunction will issue.


source: Caselaw Access Project

author: Backes, Y. C.

license: Public Domain

text:
    D. Frederick Burnett, executor of the last will and testament of Carl Berger, deceased, complainant. v. Else Heinrichs, defendant.
    [Decided November 22d, 1923.]
    Where a testator in the fourth clause of his -will gave five hundred shares of a certain stock to E., and in the fifth clause gave in trust "all the rest, residue and remainder of my estate, real and personal, whatsoever the same may, be and wheresoever situated, including my stock, both common and preferred,” in the same company, the bequest to E. is a specific bequest, and the language of the fifth clause of the will should be treated as if the testator had said “the rest of my stock, both common and preferred.”
    On final hearing.

      Messrs. Burnett, Borg, Murray & Duncan, for the complainant.

      Mr. Robert H. McCarter, for the defendant.
   Backes, Y. C.

Carl Berger owned all the outstanding capital stock, preferred and common, of the Irvington Yarnish and Insulator Company. Shortly before his death he caused to be issued to himself a certificate for five hundred shares of the preferred stock, par $100, which he paid for in cash, and another for one thousand shares, for which he gave his note. This was the only preferred stock issued. The one thousand shares he pledged to a bank as security. A few weeks thereafter he made his will, and shortly afterwards died. By his will he gave as follows:

“Third—I give and bequeath to Olga Heinrichs, absolutely and forever, 175 shares of the present common stock of the Irvington Varnish & Insulator Co., a New Jersey corporation.
Fourth—I give and bequeath to Else Heinrichs, absolutely and forever, 500 shares of the preferred stock of said Irvington Varnish & Insulator Company.
Fifth—All the rest, residue and remainder of my estate, real and personal, whatsoever the same may be and wheresoever situated, including my stock, both common and preferred, in said Irvington Varnish & Insulator Co., I give, devise and bequeath to my trustees hereinafter named and to their heirs, successors in office, absolutely and forever, and to the survivors and survivor of them, in trust, nevertheless, to and for the following purposes only, that is to say—■
а. To divide the corpus of my estate into two equal funds, one to be known as the Irmgard Trust Fund, the other as the Isolde Trust Fund.
б. To invest, reinvest and keep invested each of said funds in good and safe securities, retaining, so long as may be deemed advisable, the stock, both common and preferred above named, hereby fully protecting said trustees and each of them against any and all personal liability whatsoever by virtue of such retention.” (Then follows a bequest of one-half of the fund to bis daughter Irmgard for life, and the other half to his daughter Isolde for life, remainder over to their respective children.)
“Seventh—It is my suggestion, in no way, however, to be construed as a precatory trust or as mandatory or binding upon nny executors and trustees * * * that none of my common stock in
the Irvington Varnish & Insulator Co. shall be sold or disposed of unless, in the unanimous judgment of my executors and trustees, * * * it is essential to the best interest of'my estate to sell and dispose of the same.”

The executor, being of the opinion that the bequest contained in the fourth clause of the will was a specific legacy, paid to the legatee the dividends earned and received on the five hundred shares during the first year after the testator’s death. He now claims that the legacy was general, that he paid the dividends under a mutual mistaken notion of the law that the legacy tvas specific, and he seeks to recoup out of the dividends later declared and which he retains. The bill as framed is simply for the construction of the fourth clause of the AArill. Leave AAras given at the hearing to amend, alleging payment under a mutual mistake.

I do not find that the executor made a mistake in treating the fourth clause of the will as a specific bequest. Standing alone it Avould unquestionably be a general legacy, as there is nothing therein to indicate that the testator intended to give the shares of stock owned by him at the time he made his Avill, or that the shares he then owned were the only source from which the legacy was to be paid, and in the absence of some such indication the clause is deemed to be a direction to the executor to procure the stock or.pay the equiA7alent out of the general funds of the estate. Norris v. Thomson, 16 N. J. Eq. 218, 542; Blair v. Scribner, 65 N. J. Eq. 498; Ibid., 67 N. J. Eq. 583; Mecum v. Stoughton, 81 N. J. Eq. 319; In re United States Fidelity and Guaranty Co., 90 N. J. Eq. 254; Savings Investment and Trust Co. v. Crouch, 93 N. J. Eq. 311; affirmed, 118 Atl. Rep. 927. But the language of the bequest is not controlling. The entire instrument is to be examined, and if, upon the whole, it clearly appears tliat the testator intended to dispose of his stock, the legacy will be regarded as specific. If in the clause the testator had referred to the stock as "my” or "now in my possession” or “now owned by me,” or like words of identification, the bequest would have been specific according to all accepted authority. And if similar expressions are found in the rest of the will, referrable to and inclusive of the bequest, it is specific. By the fifth clause of the will he leaves the rest of his estate "including my stock, both common and preferred, in said Irvington Varnish and Insulator Company,” to trustees. These parenthetically introduced words shoAv that the testator in both the fourth and the residuary clause was dealing with the stock owned by him. Had he used the word “rest” of my stock there could be no question that by the preceding and fourth clause he referred to the stock he then owned. And that, in substance, is what he says, viz., I give all the rest of my estate including the rest of my stock, both common and preferred, in said Trvington Varnish and Insulator Company, to my trustees. These words would be a surplusage if they meant all his stock in the company. To the contrary they indicate that the shares remaining, after those of his shares disposed of by the fourth paragraph, were to go to his trustees. It is to be observed that the only direct bequests are of stock in the company contained in the third and fourth clauses, which immediately-precede the residuary clause. It seems to me when he said “including my stock,” he also said excluding so much of my stock as I have already given by the third and fourth paragraphs. Trustees of Unitarian Society v. Tufts, 151 Mass. 76, involved a situation somewhat like the present one. There the question was whether the bequests were specific and had been adeemed. The opinion of Mr. Justice Holmes states the facts, in which he says:

“The legacy is of Ten shares of the stock of the Worcester and Nashua Railroad Company.’ By the fifth clause of the will the testatrix gives ten shares to another legatee, and she gives none of it to anyone else. At the time of making her will she owned twenty shares of the stock. We will assume, for the purposes of our decision, that the mere coincidence between the amount given and the amount owned would not make the legacy specific, both being round numbers. * * * Turning to the language, we find nothing conclusive in the fourth clause. The word The’ preceding ‘stock’ is ambiguorrs, and may as well refer to the stock of the company in general as to the stock owned by the testatrix. But if ‘my’ were used instead of ‘the’ the legacy would be specific. * * * The same principle applies upon equally strong ground when a testator, after giving legacies of stock generally, gives the rest of the stock ‘standing in my name.’ * * * In this case the eighth clause of the will gives The balance of my stock as per my stock book, my furniture and all other property not otherwise disposed of by me.’ This language, taken with the facts, make it pretty plain that the stock disposed of by the testatrix in the fourth clause was stock then belonging to her; and the conclusion is fortified by the other clauses, which show that the general course which she adopted in making her will was to take up different items of her property as it then stood and to dispose of them.”

There is very little comfort to be found in the authorities. Often, wherever this vexed question, whether a legacy is general or specific, has arisen, and the point was close, the courts, in an effort to do justice in the particular case, have variously rested the judgment upon the peculiar phraseology of the will 'or the peculiar circumstances surrounding the testator, and sometimes upon the situation of the parties seeking the relief. Some judges hold that very slight indication of intention will make specific what otherwise would be a general legacy, while, on the other hand, the court’s lean against ademption, and hold that where there is danger of a legatee losing the benefit of the testator’s bounty the intention must amount almost to a certainty that the bequest is specific before they will permit the legacy to be defeated. Vice-Chancellor Reed, in Johnson v. Conover, 54 N. J. Eq. 333, refers to some of the English authorities and the confusion in the decisions.

My conclusion is that by the fourth clause of the will the testator bequeathed the five hundred share of the one thousand five hundred shares of the preferred stock of the company then owned by him, and that the bequest is specific and amounted to a direction to the executors at the end of the year to set apart that number of shares of the whole possessed by him and to pay them over, together with the increments accruing from the testator’s death. Thayer v. Paulding, 200 Mass. 98.


text:
    The Board of Missions and Church Extension of the Protestant Episcopal Church in the Diocese of Newark, complainant, v. Mary V. Hebble et al., defendants.
    [Decided November 30th, 1923.]
    1. An express trust as to land not manifested, in writing, is unenforceable.
    2. Wihere a husband conveys land to his wife through an intermediary no resulting trust arises.
    3. Where a husband purchases land in the name of another, and then causes it to be conveyed to his wife, no resulting trust arises. •
    4. Where a husband purchases land and causes the title to be taken in Ihe name of his wife, proof to overcome the presumption of gift or settlement and to raise a resulting trust is admissible.
    On final hearing.

      Messrs. McDermott, Enright & Carpenter, for the defendant Arnos S. Hebble.

      Messrs. Ilowe & Davis, for the defendant Mary Y. Hebble.
   Backes, Y. C.

Tinder a decree of interpleader the complainant paid into court the balance due on a mortgage executed by it to Mary Y. Hebble and Amos S. Hebble, wife and husband, on a house and lot on Maple avenue, Newark. Mrs. Hebble seeks one-half. Hebble wants it all, claiming that his wife holds the half standing in her name in trust for him. In a counterclaim against his wife Hebble prays that she may be decreed also to hold another house and lot on Yernon Terrace, Newark, in trust for him.

In 1911 Hebble conveyed to his wife, through an intermediary, the Maple avenue property. In 1916 he purchased the Vernon terrace property in the name of his secretary, Quinn, and had Quinn convey it to Mrs. Hebble. Hebble paid the purchase price. Up to that time the two had been living together;' bur now they are living apart, he supporting her under a maintenance decree of this court. In 1917 the Maple avenue property was sold and in 1918 Mrs. Hebble conveyed it to the complainant and received in part payment the mortgage above mentioned for $4,200, since reduced to $1,200, the sum now in litigation. At Hebble’s request, and with his wife’s sanction, the mortgage was made to both. Hebble rests his claim to the funds in court and to a reconveyance of the Vernon terrace property on the ground that when he conveyed the Maple avenue property to his wife in 1911 she promised to reconvey it to him or to his appointee at any time upon request, and that the Vernon terrace property was conveyed to her by Quinn upon a similar promise. His testimony to that effect is met by Mrs. Hebble’s denial and her assertion that they were gifts outright. I need not discuss the testimony because it is inadmissible. The deed for the Maple avenue property, made by Hebble to his wife, through an intermediary, was upon an express trust, if there was a trust, and not being manifested in writing is void under the statute of frauds. This is held br^ a long line of decisions in this state. In Down v. Down, 80 N. J. Eq. 68; Vice-Chancellor Learning cites and discusses most of the cases. The conveyance of the Vérnon terrace property is on the same footing. If: Hebble had at the time he bought this property caused it to be conveyed directly to his wife, proof to overcome the presumption of gift or settlement would have been admissable, and if convincing, so as to leave no reasonable doubt as to the intention of the parties, the presumption of resulting trust in his favor would have prevailed. Read v. Huff, 80 N. J. Eq. 229. But here Hebble had the conveyance made to Quinn, and Quinn conveyed to Mrs. Hebble. No resulting trust arises under the latter deed. T'he use therein is declared to be for the grantee, and where a use is declared by a deed operating under the statute of uses no other use or trust not expressed in writing can be shown. Coffey v. Sullivan, 63 N. J. Eq. 296; Fretz v. Roth, 70 N. J. Eq. 764. The point was distinctly ruled in Lister v. Lister, 35 N. J. Eq. 49, 55, “Warwick street property.” The ease of Duvale v. Duvale, 54 N. J. Eq. 581; modified and affirmed, 56 N. J. Eq. 375, relied upon by Hebble’s counsel, is not helpful in his cause. There the property bought by the husband’s money was conveyed by the vendor directly to the wife and the presumption of settlement was held to be overcome by the proofs and that a trust resulted in favor of the husband up"on his surviving his wife; the trust having been thus modified by the parties.

It may not be amiss to add for the information of Hebble that his testimony and the circumstances relied upon by him would not have been sufficient to overcome the presumption of gift or settlement if the case were one of a resulting trust upon such presumption being overcome. In my judgment the deeds were gifts in fact.

When Mrs. Hebble consented to her. husband being joined with her as mortgagee it amounted to a return pro tanto of the gift of the Maple avenue property, and they held the mortgage as owners in common. She admits this, in effect, by her claim of ownership of only one-half the principal and interest of the mortgage debt. By the pleadings she lays claim to the whole of the fund paid into court; but on the trial and in the briefs this claim was not advanced. The contention was for one-half, and I have, therefore, not considered the question whether she is entitled to recoup out of the fund or recover from her husband one-half of installments of interest and principal paid from time to time in reduction of the mortgage which she collected and gave to him as she received it.

I will advise a decree dividing the fund in court between the two. The counter-claim will be dismissed, with costs.


author: Foster, Y. C.

text:
    In re application for the sale of lands of Charles S. Baylis, deceased.
    [Submitted July 27th, 1923.
    Decided July 30th, 1923.]
    1. In the absence of an express charge or anything else to the contrary in the will, legacies are a charge upon residuary real estate as well as personality when both are given together.
    2. Evidence held to establish the testator’s domicile when the will was executed and at the time of his death as in New Jersey, and therefore the New Jersey rule that legacies are a charge in residuary real estate given together with personalty is applicable.
    On petition, &c.

      Messrs. McCarter & English and Mr. George W. C. McCarter, for the petitioner.

      Mr. William A. Kirk and Mr. Donald B. Vail (of 'the New York bar), for the guardian, &e., of Mabel Nearing, an infant defendant.
   Foster, Y. C.

The petitioner, the Title Guarantee and Trust Company of New York, as the executor of and trustee under the last will and testament of decedent, seeks an order under the provisions of chapter 80 of the laws of 1922 (P. L. 1922 p. H9), to sell certain real estate of decedent situate in this state and to use and apply the proceeds of such sale to the payment of certain legacies made in the testator’s will, and for the payment of which the personal estate is insufficient.

Mr. Baylis died in Egypt in 1903. His will, dated May 7th, 1901, was duly probated in New York, and an examplified copy of it has been filed in the Essex county surrogate’s office in this state. The will provides for the payment of a large number of legacies, in money, and it contains a residuary clause by which the residue of the estate, both real and personal, is given absolutely to three certain persons. One of these predeceased the testator, and as a result of his death the infant defendant, as an heir of Mr. Baylis, claims an interest in an undivided one-third share of the real estate in question on the ground that as to the lapsed devise caused by the death of this residuary devisee, the testator died intestate.

At the time of executing his will testator owned one of the parcels of real estate in question, and over a year later he acquired title to the other parcel. The will contains no express power of sale, nor any specific devise of real estate, nor does it expressly malee any of the legacies a charge upon the real estate.

Petitioner concedes that the statute of 1922 relates only to matters of procedure, and that it. must affirmatively establish the right to the relief it seeks. This it contends is done by construing the fifth clause of the will relating to the legacies in question, so that the same are made a charge upon the real estate in this state (and which is the only real estate owned by testator), and that by such construction the executor will be given an implied power of sale.

Defendant contends that as testator at the time of his death was a domiciled resident of the State of New York, and that as his will was there probated, it is to be construed by the laws of that state.

Since the decision of the court of errors and appeals in Corwine v. Corwine, 24 N. J. Eq. 579, it has been the settled rule in this state, in the absence of an express charge or of anything else to the contrary in the will, that a testator generally intends the legacies given by his will to be a charge on his real as well as on his personal éstate, only when the residuary real and personal estate are given together, “the rule of construction being that if the legacies are given generally, and the residue of the real and personal estate is after-wards given in one mass, the legacies are a charge on the residuary real as well as on the personal estate.”

Contrary to the foregoing rule which prevails not only in our own courts, but also in most of the state courts and in the federal courts, the law of New York is that, legacies will not 'be charged upon residuary real estate merely from tíre fact that real and personal estate is blended in the residuary disposition. J/0 Oyc. 2026.

Because of this, difference in the rule of construction, the question to be determined on this application is the domicile of testator at the time of his death, in order to determine whether the law of this state or of the State of New York is to control the construction to be placed upon his will.

The proofs on this question show that testator for a number of years was a resident of Brooklyn, in the State of New York, and while living some few years prior to 1898 he married Miss McCarter; after his marriage he sold his residence in Brooklyn and for a winter or two thereafter he and his wife lived at the Buckingham Hotel in New York City. In 1898 he 'bought for his residence No. 1023 Broad street, in the city of Newark, in this state, and completely furnished it, and during the year 1898 he and his wife took possession of and lived in this residence and he voted from it at subsequent elections, and he continued to reside there until 1901, when he bought from the estate of Thomas N. McCarter, deceased, Mr. McCarter’s former summer home at Low Moor, in Monmouth county, in this state, wlrich is one of the properties involved in this application. In 1902 testator sold his Newark home and he and Mrs. Baylis spent the summer of that year at the cottage at Low Moor, and in the fall of that year they sojourned at the Waldorf Hotel in New York, preparatory to the trip which they took to Egypt in Jammy, 1903. Testator repeatedly declared after moving to Newark that he had finally become a Jersejmian, and in his will, executed in 1901, he stated that he was then a resident of the city of Newark, in this state.

This evidence convincingly establishes the domicile of the testator at the date of the execution of his will, and also at the date of his death, to have been in this state and not in the State of New York.

Domicile has been defined as residence coupled with intention to remain for an unlimited1 time—Stout v. Leonard, 37 N. J. Law 492, and in the present case we have the sale and abandonment of Ms residence in Brooklyn, the acquisition and occupancy of Ms residences in Newark and Low Moor, respectively, his repeated declarations about having become a Jerseyman, and the fact that he voted at elections in this state as positive and conclusive proof of an intention on the part of the testator to not only regard New Jersey as his place of residence, but also as his domicile.

Domicile of the testator having thus been established in this state, the above-mentioned rule of construction in force in our courts must be applied to this application, and as the other allegations of the petition are not disputed the order asked for will be advised.


text:
    Annie Hartman, complainant, v. Francis Hartle et al., defendants.
    [Submitted November 9th, 1923.
    Decided November 17th, 1923.]
    1. A trustee cannot purchase from himself at his own sale, and his wife is under the same disability unless leave to do so has been previously obtained under an order of court.
    2. Where property was purchased for the wife of a trustee at the trustee’s sale and afterwards resold by her at a profit, the trustee must account to the heirs for the profit so realized.
    On bill, &C.

      Mr. Thomas Brown, for the complainant.

      Mr. Charles B. Bose, for the defendants Josephine Dieker and Mike Contra.

      Mr. Freeman Woodbridge, for the defendant executors.
   Foster, Y. C.

Mrs. Dorothea Geick died testate on April 8th, 1921, leaving five children, one of them being the complainant. She named her two sons-indaw executors and they qualified. Among other matters the will expressfy directed her execm tors to sell her real estate and to divide the proceeds equally among her children.

On February 9th, 1922, the executors sold part of the real estate known as the farm, at public auction, for $3,900, to one of the testatrix’s sons, Lewis Geick, who actually bought the property for his sister, Josephine Dieker, who is the wife of one of the executors.

On April 11th, 1922, Mrs. Dieker sold the property to the defendant Mike Contra (and another who is not a party to the action) for $5,500, part cash and part on mortgage.

The executors settled their final accounts on April 21st, 1922, and at or about that time complainant expressed to the deputy surrogate her dissatisfaction with the price realized from the sale of the farm.

About March 21st, 1923, she filed her bill in this cause, charging the sale of the farm to have been improperly and fraudulently made by the executors, to Mrs.-Dieker, and further charging that Mrs. Dieker and the other heirs of the. testatrix had agreed at the sale, because of slow bidding and inadequate price, to have the farm bid in for the benefit of all the heirs.

At the hearing each and every one of these allegations were shown to be untrue by the great weight of the testimony; and this proof was so conclusive that it left-complainant with but one contention to sustain her case, viz., that under the law the sale of the property by the executors and trustees to Mrs. Dieker, the wife of one of them, without previous authority from the court, was illegal and void, and that it should be set aside and the farm resold, or if that be found impossible because of the sale made by Mrs. Dieker to Contra, an innocent purchaser, then that complainant should have paid to her one-fifth of the $1,600 profits realized by Mrs. Dieker from the sale of the property.

It is the settled law of this state that a trastee cannot purchase from himself at his own sale, and that his wife is subject to the same disability, unless leave so to do has been previously obtained under an order of the court. Scott v. Gamble, 9 N. J. Eq. 218; Bassett v. Shoemaker, 46 N. J. Eq. 538; Bechtold v. Read, 49 N. J. Eq. 111. And under the circumstances of- the case complainant cannot be charged with laches under the view expressed in Bechtold v. Read, supra.

Hi view of the fact that the property is now owned by innocent purchasers a resale cannot be ordered, but as an alternative Mrs. Dieker and the executors will be held to account for complainant’s one-fifth share of the profits made on the resale of the property under the authority of Marshall v. Carson, 38 N. J. Eq. 250, and a decree will be advised to that effect.


text:
    Anna L. Donohue et al., complainants, v. Loretta Fitzsimmons et al., defendants.
    [Submitted November 7th, 1923.
    Decided November 17th, 1923.]
    1. The right to bury in a cemetery carries with it the light to erect a proper monoment or memorial at the grave. This right is, however, subject to the rules of the cemetery.
    2. Where a headstone was erected over a grave without the permit required by the rules of the cemetery association, and in violation of the rules and regulations of the cemetery (such rules and regulations appearing to be reasonable and necessary for the proper care and maintenance of the cemetery], the cemetery will be permitted to remove such headstone unless it is placed and set in conformity with such rules and regulations within thirty days from the entry of the decree in this cause.
    On bill, &c. '

      Mr. Herman B. J. Weckslem, for the complainants.

      Mr. James B. Nugent, for the defendants.

      Mr. William J. Kearns, for defendant Eoman Catholic Diocese.
   Foster, Y. C.

The bill in this case seeks to prevent the removal of a headstone erected at the grave of George C. Brumer, in the cemetery of the Holy Sepulchre, in Newark.

The facts developed at the hearing are that on May 18th, .1894, Mrs. Mary F. McHugh received from the cemetery a certificate which recited that the cemetery had received from her $70, “being amount of purchase-money of lot No. 367, section I, in the cemetery of the Holy Sepulchre.”

Mrs. McHugh was the mother of the complainant Mrs. Donohue, and of. the defendant Mrs. Fitzsimmons, and also of Peter and Daniel McHugh, at the time of her death in December, 1919.

The defendant Mrs. Brumer is the daughter of Mrs. Donohue and the granddaughter of Mrs. McHugh, and the widow of George C. Brumer, who died as a result of services in the war, on March 6th, 1922, and who was buried in the plot in question, with the consent of Mrs. McHugh’s four children.

Mrs. McHugh died intestate, and there has been no administration of her estate; the receipt or certificate above mentioned came into the possession of the defendant Mrs. Fitzsimmons, with other papers, at the time of her mother’s death.

In March, 1923, about the anniversary of her husband’s death, Mrs. Brumer caused the headstone to be erected without the consent of three of Mrs. McHugh’s children, and without the authority of the cemetery.

The Eoman Catholic diocese, as the owner in trust and manager of the cemetery, has been made a party defendant, and. has answered and has also filed a counter-claim in which it asks for the removal of the headstone because it was erected in violation of the rules and regulations of the cemetery. These rules and regulations are referred to in, and are made a part of, the certificate which was given to Mrs. McHugh.

This certificate has been referred to throughout the hearing by the parties and their counsel as a deed or a license.

Under a somewhat similar certificate, Vice-Chancellor Stevens, in Toppin. v. Moriarty, 44 Atl. Rep. 469; 59 N. J. Eq. 115, held that “the legal situation is the bishop holds the land in trust for the holders of certificates,” and the holders of the certificate in this case are the four children of Mrs. McHugh.

There is some evidence to the effect that Mrs. McHugh had declared that she did not wish any headstone to be erected on the plot which did not bear the name of McHugh, and it appears that the headstone erected at the grave of Mr. Brumer, and bearing his name, is the only one on the plot.

It is the general rule that the right to bury carries with it the right of erecting a proper monument or memorial at die grave. 5 Am. & Eng. Encycl. 790; 11 C. J. 62; Mitchell v. Thorne, 134 N. Y. 536; Thompson v. Deeds, 93 Iowa 228; Durell v. Hayward, 9 Gray (Mass.) 249. The right is, however, subject to the rules of the cemetery. St. Peter’s Church v. Bean, 15 Pa. Dist. 636; McGann v. McGann, 28 R. I. 130; McGough v. Lancaster Burial Board, 21 Q. B. D. 323.

The right of burial in this case was given by all the heirs or children of Mrs. McHugh, and was consented to, or at least acquiesced in, by the cemetery, and there is now no right in any of these children to insist on the removal of the headstone against the wishes of any of the others, or against the wishes of Mrs. Brumer, to whom the right to bury her husband in this plot was expressly given.

The position of the cemetery respecting the erection and maintenance of the headstone is entirely different. On the hearing it was shown that Mrs. Brumer was anxious to have the headstone erected before the anniversary of her husband’s death; that because of the weather and the condition of the ground, the stone was placed in a temporary way, without foundation, at the grave; the illness of the man who did the work prevented the building of the foundation for some time, and later the completion of the work was prevented by this action, and the consent of the cemetery to the erection of the headstone was never asked for.

The rules and regulations of the cemetery prescribe that— (1) no headstones shall be set without giving previous notice to the superintendent, in order that he majr determine whether it is of allowable dimensions, and is placed in the right spot and in a proper manner; (2) no such work shall be done until a certificate or permit has been issued b}r the agent of the cemetery designating the work to be done and the party to do it, and (3) headstones must be erected on foundations of solid masonry, at least twelve inches in thickness, and at least three feet in depth, and all head and foot-stones must be placed on a uniform line.

The erection of this headstone without a permit, and in the manner in which it was set, violated all of these rules and regulations, which appear to be reasonable and necessary for the proper care and maintenance of the cemetery.

A decreé will be advised permitting the cemeterj7 to remove the headstone unless the complainants, or one of them, within thirty days from the entry of the decree, cause the headstone to be placed and set in conformity to these rules and regulations.


text:
    Adaline A. Fleming et al., complainants, v. George C. Leibe, defendant.
    [Submitted October 20th, 1023.
    Decided November 10th, 1923.]
    Wlhere the guardian of a lunatic invested funds of the estate in the purchase of property, and had such property conveyed to him as guardian, without the authority of and without the approval of either the orphans court or the chancellor, and the guardian subsequently sells and conveys such property, such conveyance is validated by P. L. 1920 p. 2i\J¡., and P. L. 1922 p. 219, which acts were apparently passed to validate and confirm all conveyances of the character of the one in question.
    On bill, &c.

      Mr. Arthur M. Birdsall, for the complainants.

      Mr. Benjamin B. Pearce, for the defendant.
   Foster, Y. C.

This is a suit for the specific, performance of a contract for the sale of certain real estate situate in Belmar, Monmouth county.

The case has been submitted on the bill and answer and 'on a stipulation of counsel to the effect that these pleadings “embrace the entire state of the case.”

From the facts thus presented it appears that on July 15th, 1918, Eben D. Newman was appointed by the orphans court of Monmouth county guardian of the person and property of Frederick A. Newman, a lunatic.

On September 12th, 1918, the Land and Loan Company conveyed to Eben D. Newman, as guardian aforesaid, iots Nos. 26, 27, 28, 29 and 30, on a certain tract in the borough of Belmar.

That funds belonging to the lunatic, and in the possession of the guardian as such, were paid for the purchase of, and as the consideration for, this conveyance.

On April 2d, 1920, Eben D. Newman, as guardian of the lunatic, conveyed to complainants the same property.

On April 7, 1923, the parties to this action entered into the agreement in question for the sale and purchase of the above-mentioned lots Nos. 26, 27 and 28, and the westerly five feet of lot No. 29, for $5,000, the title to pass on April 20th, 1923. The deed for the premises was duly tendered by complainants and refused by defendant, on the ground that the conveyance of the property by the guardian of the lunatic to the complainants was defective and invalid, because it was made without authority and without the approval and confirmation of either the orphans court or the chancellor, as required by the provisions of section 7 of the act relating to idiots, lunatic and drunkards. 2 Comp. SiaL. p. 2788.

Complainants’ answer to this objection is that the conveyance to complainants is valid and effectual for the purpose of passing title, because it has been validated by the provisions of chapter 111 (P. L. 1920 p. 21/4), and by chapter 124 (P. L. 1922 p. 219), both passed subsequent to the date of the conveyance from the guardian to complainants. Both of these acts are practically identical in their terms and they provide that:

“Whenever any executor * * * guardian * * * shall have heretofore with the funds, or any part thereof, in his possession as such, purchased any real estate as * * * guardian * * * without authority by law or by his trust to make such instrument; and shall have heretofore sold such lands as purchased, such conveyances are hereby confirmed and made valid ; provided, that nothing herein contained shall be construed to release from liability to the estate such * * * guardian by reason of such improper purchase or conveyance.”

And all acts inconsistent with these acts were repealed, and these acts took effect immediately.

It will be observed that these acts relate to guardians of all kinds, without qualification, and it will also be noticed that every element necessary to make these acts applicable to the present situation is shown by the facts above recited, except that it is not shown that the guardian’s investment of the lunatic’s funds in these lands was “without authority by law or by his trust.” From the absence of any claim or allegation in the bill or answer that such investment was lawfully made, it will be assumed that it was made without authority by law or by the trust and the missing element will thus be supplied.

Defendant contends these acts do not apply to conveyances made by the guardian of a lunatic; but he gives no reason to support this assertion. The purpose of the acts is as broad and general in its term and scope as it can be expressed; there is nothing in either act to indicate that it is not intended to apply to the guardian of a lunatic, as well as to any other kind of guardian. Under the title of “guardians, &e.” (2 Comp. Stat. p. 2681), guardians of lunatics are included with guardians of minors and others, and no reason has been suggested why the court should assume the right to limit the remedial purpose of the legislature in the enactment of these validating acts.

Defendant further contends that these acts only apply fco cases where the funds invested without authority have come into the possession of the guardian by way of descent.

As no facts are presented nor authority cited' to support this assertion, and as no such exception is made in the validating acts, I have assumed that this contention is not seriously relied on, and I will advise a decree for complainants.


text:
    Lena Steinhart et al., complainants, v. Benjamin Wolf, defendant.
    [Submitted December 5th, 1923.
    Decided December 7th, 1923.]
    1. The words “in the event of the death,” or words of like import, used in a will in connection with a gift over, unexplained by the context, and not specified in the will, refer to death happening before the death of the testator, and the first legatee takes absolutely if he survives the testator, and the gift over is defeated.
    2. Where a will provides that a son shall receive “such portion as miy wife * * * may see fit to give him,” there is nothing obligatory on the wife to give the son any part of the estate, and no implied trust in favor of the son arises from these words.
    On bill, &C.

      Mr. Francis Child, for the complainants.

      Mr. Henry H. Dawson, for the defendant.
   Foster, Y. C.

This is a suit for the specific performance of a contract for the sale of real estate in the city of Newark.

The case has been submitted on the pleadings and defendant in his answer states that he has refused to perform the contract to purchase the property because complainants have only a life estate therein and cannot convey to him an estate in fee in the property.

This objection rests upon the provisions of the second paragraph of the last will and testament of Henry Steinhart, bearing date February 1st, 1911, and who died on March 2d, 1916, leaving him surviving his widow,'the complainant, Lena Steinhart, and his son, Harry, .their only child.

Lena Steinhart has been in possession of the premises since the death of her husband, and the son, Harry Steinhart, who is married, has been duly adjudicated a bankrupt.

After providing for the payment of debts and funeral expenses, the will is as follows:

“Second: I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, to my beloved wife, Lena Steinhart, to have and to hold to her, my said wife, and to my son, Harry Steinhart, such portion as my wife, Lena Steinhart, may see fit to give him, in the event of my wife’s death, all the estate, real and personal, is to go to my son, Harry Steinhart, in the event of my son’s death, all the- estate is to go to [real and personal] and be divided equally among Emma Raith and George Wheeler.”

The relation, if any, of these last-named parties to the testator is not disclosed.

Lena Steinhart was duly named and has qualified as executrix. The will contains no express power of sale. It is admitted that the family life of Mr. and Mrs. Steinhart and their son was a very happy and harmonious one.

The George Wheeler mentioned in the will is one of the complainants and does not claim any interest in the premises in question. Mrs. Emma Eaith, mentioned in the will, has died since the death of the testator, leaving a number of heirs, including the above-mentioned George Wheeler.

Defendant contends that by the use of the words “in the event of my wife’s death,” and the words “in the event of my son’s death,” testator indicated an intention to merely give his widow a life interest in his property, with remainder to his son, Harry, for life, with remainder in fee to Emma Eaith and George Wheeler. ■

In other words, defendant claims that the contingencies thus provided for relate to the events mentioned occurring after the death of the testator.

It is well settled by a uniform line of decisions in this court and in the court of errors and appeals that the words “in the event of the death,” or words of like import, used in connection with a gift over, unexplained by the context, and not specified in the will, refer to the death happening before the death of the testator. Barrell v. Barrell, 38 N. J. Eq. 60; Burdge v. Walling, 45 N. J. Eq. 10; Dranow v. Sherry, 80 N. J. Eq. 447.

Mr. Steinhart by his will bequeathed and devised the entire residue of his estate to his widow, and as the event .which he had in mind in using the expression quoted is not more definitely or specifically stated in any part of the will it follows that this expression of a contingency, in the language of Chief-Justice Gunnnere, delivering the opinion of the court of errors and appeals, in Dranow v. Sherry, supra, “can only refer to the contingency of the death of the first legatee happening during the lifetime of the testator, and so, in construing bequests of this character it has become a settled rule in the law of wills that the first legatee takes absolutely, if he survives the testator, and the gift over is defeated.” Citing Jarm. Witts (6th Eng. ed.) ch. 56, sec. 1, and Hawk. Wills 254, &c.

Defendant further contends that the will shows that testator did not intend to give his widow the residue of his estate absolutely, because he provided that his son, Harry, should have “such portion as my wife * * * may see fit to give him,” and that as a result the widow took some portion of the estate in trust for Hany.

The argument in support of this contention is that the widow is required, under this provision of the will, to give Harry some portion of the residue; that this requirement deprives her of the unlimited power of disposition, which is essential to create an estate in fee, and therefore as* to some undefined portion or amount of the residue, the widow holds title not in fee, but as trustee for Harry; that this relation arises under the doctrine of implied or precatory trusts, because it was the expectation and intention of the testator that his wife should give some portion of his estate to His son, and that she cannot refuse to give him anything, as the trust is to give him something.

One fault in this contention is that it is directly contradictory to the provision which testator made for his son, viz., “such portion as my wife * * * may see fit to give him.” There is nothing in these words of the testator that makes it obligatory for the widow to give the son any part of the estate; the matter is left entirely to her whim, or discretion or generosity; the son is to get only what his mother may “see fit to give him.” If she does not see fit to give him anything, she is acting strictly and literally as testator directed.

Furthermore,- it is the well-settled rule that an implied trust will not arise unless the person or object intended to be benefited thereby is properly and definitely described, and the amount of property to which the trust shall attach is sufficiently defined, and this is especially so where a construction creating such a trust would be a contradiction of the terms in which the preceding bequest is given, or where, from all the circumstances, it is more probable that testator meant by the expression he employed to communicate a mere discretion. Eberhardt v. Perolin, 48 N. J. Eq. 592; Lew. Trusts (3d ed.) 167, 168, 171, &c.

In the present will, while we have the person to be benefited—the son Harry—definitely described, there is no definite part or amount of the estate designated from which he is to derive any benefit, and it clearly appears that his mother, the first taker, is expressly given the discretionary power to control or defeat the desire or purpose expressed by the testator.

Under these circumstances an implied trust does not arise, and as I find nothing else in the case to indicate that Lena Steinhart is not the owner in fee of the premises in question, the decree for specific performance will be advised.


author: Fielder, V. C.

text:
    Mary E. Garabrant, complainant, v. Floyd H. Garabrant, defendant.
    [Decided November 30th, 1923.]
    3. To entitle a foreign judgment for divorce to full force and effect as against the defendant therein, who is a resident of this state, it must appear that jurisdiction over the defendant was acquired in the manner and in substantial conformitjr with the requirements of our Divorce act and the rules of this court, am-ong such requirements being that the defendant shall have been served with process in substantial conformity with our statute and court rules, and that the plaintiff (except in causes for adultery) shall have been, for two years next preceding the commencement of the action, a bona fide resident of such foreign jurisdiction.
    2. Where a husband not living with his wife, notified her that he would establish a home in certain- rooms, which were not adequately furnished for housekeeping purposes, and she did not unqualifiedly refuse to live therein, and the husband made no effort to induce her to live there, or elsewhere with him, but left the state and filed his petition for divorce in another state, he is guilty of abandoning her and separating himself from her.
    On bill for maintenance.

      Mr. Martin R. O’Keefe, for the complainant.

      Mr. David F. Barhman and Mr. Harold A. Price, for the defendant.
   The opinion of the court was delivered by

Fielder, V. C.

Complainant filed her bill for maintenance and support for herself and the child of the marriage, under section 26 of the Divorce act. Oomp. Stab. p. B0B1.

Defendant’s first defense is that he procured a decree of divorce from complainant, in a suit in which complainant did not appear, in the State of Oklahoma, November 13th, 1931, which decree was made absolute May 13th, 1933. Complainant contends that the decree is invalid and she prays that it may be adjudged of no force and effect in this state. In support of her contention she urges several grounds, of which I shall consider but two.

By section 33 of the Divorce act full force and effect is to be given in this state to a decree of divorce by a court of competent jurisdiction of another state, when the jurisdiction of such court was obtained in the manner and in substantial conformity with the conditions prescribed in section 7 (among other sections) of the act.

Section 7 provides as follows:

“When the defendant cannot be served personally with process within this state, and when at the time of the commencement of the action the plaintiff is a Iona fide resident of this state, jurisdiction for the purpose of divorce * * * may be acquired by publication, to be followed, where practicable, by service upon or notice to the defendant without this state, or by additional substituted service upon the defendant within this state, as prescribed by law or rules of court, under the following conditions:
“(a) When at the time the cause of action arose, the petitioner was a Son® fide resident of this state, and has continued so to be down to the time of the commencement of the action, except that no action for absolute divorce shall be commenced for any cause other than adultery, unless the petitioner has been for the two years next preceding the commencement of the action a tona fide resident of this state.”

It is essential to the validity of the Oklahoma decree that jurisdiction over the defendant therein was acquired by service of process in the manner and in substantial conformity with the requirements of our statute and the rules of this court. Our Chancery act (Comp. Stat. p. 4-08), sections 13, 13 and 14, as amended (Supp. Comp. Sta.t. p. Ml, § 10') and chancery rules 35, 36, 37, 38, 357 and 358, are applicable. Under them, where it appears that a defendant in a divorce suit cannot be found within the state to be served with process, the chancellor may, by order, direct such clefendant to appear and answer within a time fixed by the order and notice of such order, with a certified copy of the petition for divorce, must be served personally on .the defendant, or be published in a newspaper, and, in case of publication, a copy of the notice and petition must be mailed to the defendant at his post-office address, if the same be known, or can be ascertained.by inquiry. If the defendant fails to appear and answer within the time fixed by the order and notice, after proof of service, the practice is for the chancellor to order the petitioner to produce evidence to prove the allegations of his petition and thereafter such decree is entered as the chancellor shall think just.

It has been held that when a decree of divorce granted by a court of a sister state is attacked in our courts it must appear, among other things, that actual notice of the suit has been given to the defendant and a reasonable opportunity afforded to put in a defense. Felt v. Felt, 59 N. J. Eq. 606, 610, Lake v. Lake, 65 N. J. Eq. 544; Davenport v. Davenport, 67 N. J. Eq. 320, 341.

Complainant was at all times before, during and after the pendency of the Oklahoma suit, and still is> a resident of Morristown, and her place of residence and post-office address were known, to, or could have been ascertained readily, by her husband. The decree of the Oklahoma court, which is the only proof offered to establish jurisdiction over the complainant herein, recites merely that she was “duly and legally served by publication,” which can mean no more than that some sort of notice was published m an Oklahoma newspaper and cannot mean that such notice and a copjr of the petition for divorce were mailed to her at her post-office address in this state. Complainant’s uncontradicted testimony is that she never received any notice of the Oklahoma suit and that such suit proceeded to final decree without her knowledge. I hold that the decree of divorce is founded upon insufficient service of process on complainant, and that it is therefore not entitled to full force and effect in this court and is void as against complainant.

Another jurisdictional requirement of section 7 of our act is that the petitioner in an action for divorce shall be “for the two years next preceding the commencement of the action a bon a fid)e resident of this state.” Unless the defendant here was a resident of Oklahoma for two years next preceding the commencement of his suit in that state, jurisdiction of the Oklahoma court was not obtained in the manner and in substantial conformity with one of the conditions prescribed in section 7. Thompson v. Thompson, 89 N. J. Eq. 70; Sechler v. Sechler, 94 N. J. Eq. 47. It is admitted that defendant was not a resident 'of Oklahoma for that period, and for this further reason his decree of divorce is not entitled to full force and effect in this court and is void as against complainant.

Defendant’s second defense is that he did not abandon complainant, but that she deserted him and that he supported .her and their child up to the time of such desertion. The parties were married in November, 1918. Defendant was discharged from his army service in December, 1918, and thereafter lived with his parents at Mendham up to the time he left the state. From the time of the marriage complainant and her child lived with her parents at Morristown, except for a few occasions, when she visited defendant at his parent’s home. He contributed small sums at irregular intervals for the support of his wife and child, but made no attempt to provide a home for them until November, 1919, when he arranged to take rooms at Mendham. He then notified complainant that he would establish a home there and the parties went together to inspect the rooms. She says the rooms were empty and in no condition for occupancy, but that she told him she was willing to live there, so soon as he had them cleaned and furnished'. He says the rooms were partially furnished and that she said she did not like them, and that she never agreed to live in them, and this, defendant claims, was complainant’s act of desertion. If the rooms contained any furniture such furniture was inadequate for housekeeping purposes and, considering complainant’s frequently expressed desire to defendant for a. home, I do not think she made an unqualified refusal to live in the rooms. At any rate defendant made no further effort to induce her to live there, or elsewhere, with him, as it was his duty to do, and in December, 1919, he ceased giving her money, and in January, 1920, he left the state and filed his petition for divorce in Oklahoma, in July, 1921. I find that up to the time defendant left the state he had made no sincere efforts to provide a home for complainant; that before he left he had refused to support her and his child, and that his leaving the state and instituting his action for divorce is conclusive evidence that he had abandoned her.

There will be a decree in favor of complainant. The defendant will be required to pay $12 a week for the support of complainant and their child. Costs of suit will be allowed complainant and a counsel fee of $150 to complainant’s counsel.


author: Church, Y. C.

text:
    Marie Ernestine Karl, complainant, v. Philip Karl, defendant.
    [Decided June 28th, 1923.]
    Evidence that a husband had frequently quarreled with his wife and on numerous occasions had assaulted her, without any provocation for such assaults, is sufficient to entitle her to a decree for separate maintenance.

      Mr. Paula, Laddey, for the complainant.

      Mr. Henry Oarless, for the defendant.
   Church, Y. C.

In this case the complainant sues her husband for separate maintenance on the ground of extreme cruelty. It appears that nearly thirty years ago the husband and wife were married in Germany and came to this country. They have nine children. The testimony shows that the husband and wife had frequent quarrels; on various occasions the defendant assaulted his wife, struck her at one time on the breast, at another timo gave her a blow between the eyes; then he attempted another time to choke her. Often she had to dee from him and go outside the house. At another time he Icicked down a door into her bedroom, which she had locked in fear of him. He also threw knives at the door. He upset the table in the kitchen and broke the dishes.

She testifies, and is corroborated in this statement, that these acts of her husband have caused her to suffer physically and that she is now bed-ridden, not, perhaps, entirely due to the unkind treatment of the defendant, but certainly his treatment exaggerated her condition.

The defendant says that he supported his wife in the proper manner and that the quarrels which arose between them, and which he admits, were due as much to her as to him. A husband’s obligation to his wife does not end with mere support. It is his duty to avoid quarrels, not to provoke them.

Counsel attempts to show that under the decisions in this state a man may strike his wife several times without being adjudged guilty of extreme cruelty. I cannot find any cases to support his contention. The defendant, perhaps, relies upon the case of Pittis v. Pittis, reported in 82 N. J. Eq. 635. In that case the husband was accused by his wife of improper relations with his own sister, which accusation was untrue. In the heat of passion he struck her, and the court held that this was not sufficient evidence of extreme cruelty to establish her right to a permanent separation. The theory of a suit by a wife for divorce on the ground of extreme cruelty is that the final separation in such cases should be made as a protection against future probable acts of cruelty.

The case I have cited can easily be distinguished from the case at bar. In the cited case the husband was accused of a foul crime, of which he was entirely innocent, and his natural resentment caused him to strike his wife in the heat of passion. This act he immediately repented and there was no evidence of any other similar occurrence. In the ease at bar, the husband had no justification whatever in quarreling with his wife, or in striking or choking her. She had borne him nine living children, and, as far as the testimony shows, had been in every way a good wife to him.

She is, I think, justified, in fearing that if she continues to live with him these attacks of temper on his part may develop at any time, and that her health may be seriously impaired by the consequences of such irritation on his part.

I am of the opinion that the treatment of the complainant by the defendant is such as to justify her in asking this court for a separation on the ground of extreme cruelty.

I, therefore, feel that the complainant is justified in asking for separate maintenance, and I will grant the prayer of the complaint.

I will hear counsel as to alimony and counsel fee to be awarded.


text:
    Anna Krah Jansch, petitioner, v. Ernest Jansch, defendant.
    [Decided June 23d, 1923.]
    A petitioner in a divorce suit may proceed with her case though the defendant is in contempt of this court, but if the defendant is not in court, or represented by counsel, counsel should be assigned him.
    On final hearing.

      Miss Bessie E. Snyder {Mr. Franlc Bradner, of counsel), for the petitioner.

      Mr. Harry Gasllebaum, for the defendant.
   Church, Y. C.

This is a suit for divorce from bed and board on the ground of extreme cruelty. The cause came on for final hearing on May 29th, .1923. lit the same time an order to show cause why the defendant should not be adjudged in contempt for not paying alimony pendente lite and counsel fee came before me. I heard the application, adjudged the defendant in contempt, and committed him to the Essex county jail, there to remain until he had purged himself.

Counsel for petitioner desired to proceed with the final hearing, notwithstanding my adjudication that the defendant was in contempt. I reserved decision as to whether the court of chancery will hear a divorce proceeding when either party is in contempt. There can be no doubt that if the petitioner had been in contempt, this court would not have heard the case. Han. Gh. Pr. *BOB, states the rule to be: “That a party in contempt cannot move until he has cleared his contempt, and that the rule is confined to cases where such party comes forward voluntarily and asks for an indulgence.” There does not seem to be any reported case in this state which considers the question involved here. The defendant’s contempt in this case is civil and the proceeding is a remedial step in the cause between the parties. His present imprisonment is only intended to require him to perform an act beneficial to the other party. I believe that if this case were adjourned simply because the defendant refused to obey the order of the court, it would work an injustice on the petitioner. >The defendant was indicted by the grand jury of Essex county for atrocious assault and battery on his wife, was tried and convicted, and sentence was postponed until I had disposed of the matter before me. I, therefore, decided to hear the case, directed the sheriff of the county of Essex to produce the defendant in court, and assigned counsel to defendant, and granted the application of the petitioner for separate maintenance. As to how long I should confine the defendant in jail because he refuses point blank to obey my order for temporary alimony and counsel fees, I have decided as follows: That inasmuch as the Essex court of quarter sessions is to sentence him on the conviction for atrocious assault and battery, I will suspend my order that he be kept in jail on the contempt proceedings so that the Essex court of quarter sessions may proceed in the criminal case.

[ felt that this court should proceed with the hearing of the cause, although the defendant was in contempt, but that the defendant had a right to be heard, which I granted by assigning counsel. Chancellor Williamson, in the case of Endicott v. Mathis, 9 N. J. Eq. 110, says: “As this is a matter so entirely in the' discretion of the court, where the court is simply vindicating its own dignity, it would seem that each case as it arises must depend very much upon its own peculiar circumstances.”

I. therefore, think that the rule should be stated in .this way: .When a petitioner is in contempt he cannot move his case without purging himself. When a defendant is in contempt the petitioner can move the case against the defendant, although he is in contempt, if the defendant is in court, or is properly represented by counsel, and if he is not represented by counsel, the court can assign counsel in order that the matter may proceed and the case be determined, so that defendant may not delay any adjudication in favor of the petitioner merely by refusing to obey the order of the court.

Let an order be drawn granting the petitioner’s prayer for a divorce from bed and board on the ground of extreme cruelty, together with an order suspending the sentence heretofore made by this court in the contempt proceeding.


author: Church, V. C.

text:
    Morris Tzeses and Anna Tzeses, his wife, complainants, v. Tenez Construction Company, a corporation, defendant.
    [Decided October 9th, 1923.]
    The words “I wish my niece N. Q. to be put in possession of all I have in clothes, money, jewelry, in fact all I have” when used in a will are sufficient to pass title to real estate of the testatrix to the beneficiary in fee-simple.
    On bill, &e. ■

      2Ir. Benjamin Newman, for the complainants.

      Mr. Harry Levin, for the defendant.
   Church, V. C.

This bill is filed to compel specific performance of a contract for the sale of property owned by the complainants to the defendant corporation. The defendant refuses to perform, attacking the title of complainants, which rests upon the will of one Katherine Farrell. The will is as follows: “I wish my niece, Miss Nellie Quinn, to be put in possession of all I have in clothes, money, jewelry, in fact all I have.”

The first point is whether the expression “I wish” is sufficient to pass title to real estate. Both the solicitor of the complainant and the solicitor of the defendant agree that it is.

Second, whether the expression “to be put in possession” is sufficient to entitled Miss Quinn to an estate in fee-simple, or whether she has only a life estate.

In my opinion, without citing any other authority, the Comp. Stai. p. 5878 § 86 settle the point and lead me to the conclusion that Miss Quinn has an estate in fee-simple.

The third point is whether the expression “in clothes, money, jewelry, in fact all I have” is sufficient to carry real estate. I believe it is.

Any words, however untechnical or informal, which clearly indicate an intention on the part of the testator to pass an interest in real estate possessed by him, will be given that effect. 40 Cyc. 1530 and cases cited. Moreover, the law abhors intestacy and therefore it is the duty of this court to construe the will, if possible, so that it will pass all that the testator possessed.

I am of the opinion that under this will, brief and untechnical as it is, Miss Nellie Quinn is the owner in fee-simple of the promises described in the bill and I will therefore advise a decree of specific performance.


author: Bentley, V. C.

text:
    Antonio Giuditta et al., complainants, v. Carmelo Bonacci et al., defendants.
    [Decided July 25th, 1923.]
    A deed of gift of a father seventy-nine years old to a daughter with whom he was living—Held, void for lack of independent advice, regardless of whether or not the father by such deed parted with all of his property.
    Oil bills, &C.

      Messrs. Leavitt & JJlbrich, for the complainants.

      Mr. Frank J. Burns, for the defendants.
   Bentley, V. C.

On January 31st, 1922, Angelo Giuditta executed a deed conveying a piece of land with a two-family dwelling-house thereon in the town of Westfield, to his daughter Carmelo Bonacci, one of the defendants. On the following day he died. At that time he was a very old man, probably seventy-nine years of age, and suffering from diseases which caused his death. The .premises mentioned were the last of three pieces of property he had acquired and all that he possessed in the world, except certain rights under a prior deed that will be mentioned hereafter. He was an illiterate man of Italian birth, unable to speak the English language.

At the time of his death he left surviving two sons and three daughters as his heirs-at-law, and his wife had predeceased him. After the death of his wife he had resided with his son Antonio, one of the complainants, until within about two weeks of his death, occupying, however, separate rooms from Antonio and his family. There was a sharp dispute as to the terms of friendship upon which he lived with Antonio; but I am convinced that their relations were reasonably friendly.

About two weeks before he died Angelo went to the home of his daughter, the defendants Carmelo and her husband, in another town, as he had been accustomed to do; but this time he remained with them continuously and died in their home. On the day of his death Mr. Sauer, a solicitor of this court, with whom the grantor had had no previous business relations, was called upon by Cannelo’s husband and drew the deed in question and sent it by a young, man in his office to the home of the defendants for execution. Or' the way this clerk, in obedience to his instructions, secured a notary public, who accompanied him and the grantor’s son-in-law to the latter’s home, where the notary took the acknowledgment, using a daughter of Carmelo as interpreter. The testimony of these witnesses, all of whom were examined on the final hearing, indicates that there was nothing outside of the usual routine in the execution of an ordinary conveyance. The contents of the deed were explained to the grantor; he executed the same, which was absolute on its face and irrevokable, and the notary took the acknowledgment.

There was a great mass of testimony about the actions of the parties following the death of the grantor, and was so contradictory and so bitter that it is impossible to predicate any belief upon it and is of no importance because it was introduced by the parties under theories that are now abandoned.

Thus, we have the situation of a man within twenty-four hours of the grave, ignorant, diseased, moribund and helpless, voluntarily stripping himself of a very large percentage of his property, if not—in bis circumstances—all the property upon which he could rely, and all of this was done in the bosom of a family upon whom he was dependent for the care that he required and without any advice as 'to the consequences of his act. When it is said that this was perhaps the only property upon which he could rely for his support it is because he had reserved to himself, in another conveyance made to another son, the right to use and occupy two rooms of the property conveyed during his life, and an annuity of $360 per year. It requires no labor to show that, such a covenant would be of small value to a man in his unfortunate position and advanced stage of life.

Having already indicated my impression that this conveyance could not be sustained because of the lack of independent advice, counsel for the defendants has striven with great ingenuity to distinguish this case from those I am presently about to cite. His brief appears to have been based upon the theories—first, that the rule of independent advice only applies where the grantor has stripped himself of all his property, and secondly, that the execution of the deed was in consideration of the defendants assuming the burden of the incumbrance of a mortgage m the sum of $2,500. With regard to the latter claim, there might be great merit if there had been appropriately expressed the consideration of supporting the grantor for the balance of his life; but it seems to me that to say that the defendants, or either of them, agreed to do something that they would have had to do anyway to obtain the fruits of the conveyance need only be expressed to disclose the answer.

Nor do I understand that it is necessary that the grantor shall have parted with all his property to render a voluntary deed of gift invalid if it otherwise offends against the rule laid down in our cases. The so-called rule of independent advice has become so peculiarly fixed in our law that no assistance is to be obtained from an examination of the law in other states. The subject is sufficiently delineated by our decisions without the necessity of recourse to those of our sister states. In Haydock v. Haydock, Vice-Chancellor Van Fleet set aside two gifts made by the husband to his wife shortly before her death, upon the ground of undue influence. When this case was reviewed (34 N. J. Eq. 570) the court of errors and appeals (at p. 574) said:

“I take the rule to be settled that where a person enfeebled in mind by disease or old age is so placed as to be likely to be subjcted to the influence of another, and makes a voluntary disposition of property in favor of that person, the courts require proof of the fact that the donor understood the nature of the act, and that it was not done through tire influence of the donee.” Huguenin v. Baseley, 2 L. C. (4th Am. ed.), notes 1183, 1185; American notes 1192, 1191.

It is true that in this case the opinion of the appellate court also contemplated other rules, and indicated that there was a strong belief of mental incapacity; but that the meaning of the case is, as I have indicated, sufficiently shown by, it, subsequently being cited to that effect in later opinions of the court of errors and appeals, such as Slack v. Rees, supra.

In Hall v. Otterson, 52 N. J. Eq. 522, Vice-Chancellor Green examined innumerable cases and thereupon lays down the following rule (at p. 528) :

“1'n all transactions between persons occupying relations, whether legal, natural or conventional in their origin, in which confidence is naturally inspired, is presumed, or in fact reasonably exists, the burden of proof is thrown upon the person in whom the confidence is reposed and who has acquired an advantage, to show affirmatively, not only that no deception was practiced therein, no undue influence used, and that all was fair, open and voluntary, but that it was well understood,” citing many authorities. The decree was affirmed in 53 N. J. Eq. 695, on the vice-chancellor’s opinion.

The leading case is the one just mentioned, namehg Slack v. Rees, 66 N. J. Eq. 447. In that ease, in the court of chanceiy, Vice-Chancellor Reed had refused the complainant’s prayer. In the court of errors and appeals the decree was reversed. The present chief-justice, in delivering the opinion of the latter court (at p. 118), saj's:

“That the absence of such advice will invalidate a deed of gift which contains no power of revocation, where a relation of trust and confidence exists between the donor and donee, is not denied, and, indeed, it was so held by the vice-chancellor. He seems to have considered, however, that such relationship was not shown, unless it was made to appear that the donee occupied such a dominant position toward the donor as to raise the presumption that the latter was without power to assert his will in opposition to that of the donee. But this is not the situation. The rule has a much broader sweep. Its purpose is not so much to afford protection to the donor against the consequences of undue influence exercised over, him by the donee as it is to afford him protection against the consequences of voluntary action on his part, induced by the existence of the relationship between them, the effect of which, upon his own interests, he may only partially understand or appreciate.”

Nowhere does the rule seem to be laid down in such form that it will only be applied where the grantor dispossesses of all his property. On the other hand, the true rule is expressed in Hall v. Otterson, supra,, where it is said:

“It is to secure this thorough understanding that courts of equity require, in cases of this kind, except in those involving mere trifling gifts, that the donor shall have independent advice. Page 529.” (Italics are mine.)

In Post v. Hagan, 71 N. J. Eq. 234, the court of errors and appeals says (at pp. 244, 245):

“That the donor in the present case ought to hav.e had independent advice must be taken to be entirely established. That she did not have it is also clearly shown. Judge Paxton, the lawyer who drew the deeds and took the donor’s, acknowledgments, was employed for that purpose by the donee and appeared for her in the court below. She called upon him with the old deeds, from which he was instructed to draw two new deeds, in all respects similar to the old ones, saving as to the names of grantor and grantee, and when he had the deeds ready he was to attend upon the donor and have them executed. His instructions were both limited and explicit. These instructions he carried out. He was in no sense the advisor of the donor and at no time acted in that capacity. His only remark to the donor, as I recall it, was that cited by the vice-chancellor, viz., that he reminded her that she had a son.”

This is so remarkably similar to the situation that existed in the case at bar, that with a change of name of the attorney and that he did not appear in court for the donee I might have used the same language, except that here no one ever reminded the old man of his other children. Without consideration of the testimony as to the desire of the grantor to have his own attorney instead of Mr. Sauer, I prefer to place my decision squarely upon the rule, as I understand it, to be gathered from the foregoing cases. The rule is too salutary to be relaxed. It is a small thing to expect of expectant beneficiaries under such circumstances that they shall at least see that he whose bounty they hope to enjoy shall be given the opportunity of untrammeled consultation with some person competent under all the circumstances to advise him of the consequences of his act.

I will advise a decree setting aside the conveyance.


author: Bentley, Y. C.

text:
    McGrory Stores Corporation, complainant, v. Louis Goldberg et al., defendants.
    [Decided August 30th, 1923.]
    A letter mailed on October 31st, 1922, postmarked seven-thirty l>. Mt, notifying a lessor of the lessee’s election to exercise his option under a lease to renew the lease, was not a notice given “on or before'’ October 31st, as required by the terms of the lease.
    On bills, &c.

      Mr. Alexander Simpson, for the complainant.'

      Mr. Harry Lane, for the defendants.
   Bentley, Y. C.

On March 24th, 1913, the defendants’ grantor entered into a lease with the complainant of certain propert}’, for a term of ten years, to commence on May 1st, 1913; and, of course, to expire on April 30th, 1923, as conceded by counsel. Among other things the lease provided as follows:

“And at the expiration of the term of this lease, the party of the second part hereto shall have the option of renewing said lease for a further term of ten (10) years, at the rental of one hundred and fifty-five dollars ($155) per month, for the first five years, and one hundred and sixty-five dollars ($165) per month for the next five years; provided, however, that a written notice is given the party of the first .part hereto at least six (6) months before the expiration of the within lease, of their intention so to renew.”

It is also agreed by counsel that the notice required by the language just quoted must have been made on or before October 31st, 1922.

The bill alleges that the complainant has its principal office in New York City, and that all transactions with the defendants and their predecessors in title were had by mail and not personally or directly. It is also alleged that on October 31st, 1922, the complainant, in accordance with its custom, deposited a check for the next ensuing month’s rent in the mail, and enclosed therewith a letter declaring its intention to renew the lease. The envelope in which this check was enclosed was of the type having a transparent portion on the face thereof, so that the name and address upon any letter or other enclosure can be read through, the same, thereby obviating the addressing of the envelope. This envelope was postmarked by the United States mail authorities in New York under date of October 31st, 1922, at the hour of seven-thirty in the evening. This was the only effort made by the complainant to exercise its option of renewal within the time provided by the lease.

The question presented is, whether or not such attempt was efficacious for that purpose. It seems to me clearly that it was not. Counsel for the complainant argues that as ordinary conditions of business and life change, the rules of law will be relaxed, modified, or altered as such occasions may require for the administration of justice; and, of course, that is so. But I am unable to follow him when he progresses from that point to the contention that because all transactions with the defendants had been by mail, that impliedly an acceptance by mail of the defendants’ offer to renew the lease was agreed upon by the parties. It seems to me that the true rule is expressed in 6 R. O. L. 61S. I do not mean to say that the mailing of this acceptance would not have accomplished its purpose were it proven that the same had been received by the defendants within the time limited by the lease; but under all the circumstances of this case, as pointed out by the authority just cited, I do not think that the acceptance became complete upon depositing the letter in the mail box.

As a matter of policy, in a formal transaction such as the renewal of a lease so valuable as this one is said to be, there should be no unnecessary extension of the privilege of corresponding by mail. It requires little imagination to conceive of the innumerable schemes that might be devised in fraud of other parties if the rule is extended. The policy of the law is based upon either the necessity for corresponding by mail, such as the separation of the parties by large distances, or the implication arising from the use of that agency by one party whereupon permission is extended to the other to do likewise. That a letter mailed so late in the day as to be postmarked “7:30 p. m.” would not be delivered in the course of ordinary mail the same day and that the acceptance of an option must be made within the time limited by the contract, are so apparent and elementary as to require neither argument nor authority.

The facts in this case have already been examined in the first district court of Jersey City, and the facts as to the mailing of the acceptance mentioned above have already been judicially determined. I have not considered the question of jurisdiction, for the reason that it has not been raised. Counsel have presented and argued the matter on the merits, and because of circumstances requiring haste in the decision of the question, I have not taken the time to examine it.

In view of counsel’s expressed intention to review.my decision in the event of a dissolution of the restraint herein. I will require the defendants to include in their order a stay for a period sufficiently long to permit the complainant to apply to the court of errors and appeals for a stay pending its determination of the complainant’s appeal.