author: Per Curiam.

text:
    Moses E. Reeves, respondent, v. Selena A. McCracken, appellant.
    [Argued November 29th, 1907.
    Decided March 2d, 1908.]
    1. A contention on appeal that the court erroneously decided that the •defendant, by her answer, admitted the truth of allegations touching facts not within her personal knowledge, because the answer was silent as to ■such allegations, will not be decided where the proof establishes the facts "held to have been admitted.
    2. A party made sworn answers to interrogatories, as required by the ■complainant’s bill. The bill was thereafter amended, and the interrogatee was omitted as a party; but his answers were admitted in evidence in the trial of the amended bill. — Held, that a contention that the answers were inadmissible would not be decided on the appeal where the proof at the trial established the facts shown by the answers.
    3. Answers to interrogatories by a party to the suit, sworn to in response to the prayer of complainant’s bill, are evidence on the trial of the cause as made by an amended bill, to which the interrogatee is not made a party, within the meaning of a stipulation providing that evidence in the original suit might be used by either party under the amended bill, •especially since, when office copies of the answers'were admitted in evidence, objection was made only to their materiality and relevancy, and mot to their admissibility or competency.

      On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 69 N. J~ Eq. (S Robb.) 80S.

      Mr. Robert II. McCarter, for the appellant.

      Mr. Frank E. Bradner, for the respondent.
   Per Curiam.

The decree of the court of chancery is affirmed, for the 'reasons given by the learned vice-chancellor who heard the cause, in whose conclusions, both as to the facts of the case and as to the equitable status of the parties, we concur.

As to two matters apparent on the face of the vice-chancellor’s conclusions, however, we find it unnecessary to express any opinion inasmuch as the decree of the court below may be affirmed without regard to these points. The matters thus referred to are —first, that the appellant must be held to have admitted the-truth of certain allegations of the bill touching facts not within her personal knowledge, because her answer was silent as to such allegations; and second, that the sworn answers of McCracken to-interrogatories exhibited in connection with the original bill are evidential against Mrs. McCracken under the amended bill, to-which McCracken is not a party.

The first of these questions need not be decided, because the-matters that Mrs. McCracken was held to have admitted were sufficiently established by the proofs taken in the cause. The evidential force of McCracken’s sworn answers to interrogatories-need not be decided as an abstract question, for the same reason,, and, further, because of the stipulation of the parties that evidence in the original suit might be used by either party under the amended bill. Sworn answers to interrogatories are so far evidence as to fall within the apparent scope of this stipulation, especially in view of the fact that when office copies of these-answers were offered in order to malee up the record in the-present case, they were admitted for that purpose, the only objection made being as to their materiality and relevancjq and not at all as to their admissibility or competency. If the bill had not called for answers under oath to these interrogatories, such answers would have been eo nomine “evidence in the cause,” under Marvel v. Fralinger, 67 N. J. Eq. (1 Robb.) 622. We cannot see why they may not likewise be treated as evidence within the meaning of the stipulation merely because they were sworn to in response to the prayer of the complainant’s bill. The vice-chancellor evidently treated the answers as if they were thus before him, and the use that he made of them is not essential to the conclusion reached by him upon the merits.

The decree is affirmed.

For affirmance — The Chancellor, Chief-Justice, Garrison, Swayze, Eeed, Trenchard, Parker, Bergen, Bogert, Vroom, Green, Gray, Dill — 13.

For reversal — None.


source: Caselaw Access Project

author: Pee Curiam.

license: Public Domain

text:
    Richard G. Stevenson, complainant, respondent, v. Paul H. Markley et al., executors, defendants, appellants.
    [Argued December 2d, 1907.
    Decided March 2d, 1908.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported in 72 N. J. Eq. (2 Buck.) 686.

      Mr. Herlerl A. Drake and Mr. Howard M. Cooper, for the appellants. .

      Mr. Francis D. Weaver, for the respondent.
   Pee Curiam.

We agree with the vice-chancellor that the statute of limitations does not bar the relief sought and that the facts set forth in the amended bill prima facie excuse the seeming laches of the complainant. These conclusions are well vindicated by his opinion. It was unnecessary to hold that the case was not one properly cognizable by the orphans court. We prefer to express no opinion on this point, in view of the provisions of section 118 of the Orphans Court act (P. L. 1898 p. 758), authorizing an executor or administrator of a deceased guardian to account in that court, and of section 116 authorizing a citation at the instance of any person interested in the estate.

The vice-chancellor assumed that the act concerning the action of account (Gen. Siat. p. 5) applied to a general guardian appointed by the orphans court. In this court the stress of the appellant’s argument rested upon that assumption. Its correctness is doubtful. In terms the act only authorizes such action against the executors or administrators of a guardian. It does not purport to extend the right of action against guardians themselves which at common law was limited to guardians in socage; the sole object of the statute seems to have been to extend the right of action already existing against guardians in socage to their executors and administrators; it is a copy of the statute of ^ Anne c. W § [B7. It seems hardly likely that the legislature could have meant the act to apply to guardians authorized by the statute originally passed December 16th, 1784. Pat. L. 59. That act gave the orphans court thereby created full power and authority to hear and determine all disputes and controversies whatever respecting the allowance of the accounts of guardians — a provision quite inconsistent with the argument on the part of the appellant that an action of account lay against such guardians. The action of account was then already falling into disuse.

The order appealed from should be affirmed, with costs.

For affirmance — The Chancellor, Chief-Justice, Garrison, Swayze, Reed, Trenchard, Parker, Bergen, Bogert, Vroom, Green, Gray, Dill — 13.

For reversal — None.


text:
    Thomas S. Wills et al., complainants, appellants, v. Eliza A. Wills et al., defendants, respondents.
    [Submitted December 9th, 1907.
    Decided March 2d, 1908.]
    On appeal from an order made by the former chancellor advised by Vice-Chancellor Learning, whose opinion is reported in 72 N. J. Fq. (2 Buch.) 782.

      Messrs. Berry ■& Biggins, for the appellants.

      Mr. Fphraim Tomlinson and Mr. Howard M. Cooper, for the respondents.
   Per Curiam.

The order under review herein will be affirmed, with costs, for the reasons set forth in the opinion of Vice-Chancellor Learning.

For affirmance — The Chancellor, Chief-Justice, Garrison, Swayze, Reed, Trenchard, Parker, Bergen, Bogert, Vroom, Green, Gray, Dill — 13.

For reversal — None.


text:
    William E. Ten Broeck and Emma Jane Jackson, appellants, v. Charles A. Jackson, executor, &c., et al., respondents.
    T Submitted December 9th, 1907.
    Decided March 2d, 1908.]
    On appeal from a decree of the former chancellor advised by Vice-Chancellor Stevens, whose opinion is reported in 71 N. J. Eq. (1 Buck,.) &88.

      Mr. Freeman Woodbridge, for the appellants.

      Mr. Alan H._ Strong, for the respondents.
   Per Curiam.

In our opinion the learned vice-chancellor correctly held that the essential allegations upon which depended the right of the complainants to relief were not supported by satisfactory evidence.

We have not found it necessary to consider the question of laches.

The decree dismissing the bill of complaint should be affirmed, with costs.

For affirmance — Ti-ie Chancellor, Chiee-Justice, Garrison, Swayze, Reed, Trenchard, Parker, Bergen, Bogert, Vroom, Green, Gray, Dill — 13.

For reversal — None.


text:
    Amelia R. Sparks and Emma Ross, appellants, v. Charles S. Ross and Jennie I. Thornton, respondents.
    [Argued December 4th, 1907.
    Decided March 2d, 1908.]
    On appeal from an order made by the former chancellor upon the advice of Vice-Chancellor Learning, whose opinion is reported in 78 N. J. Eq. (8 Buch.) 768.

      Mr. Thomas E. French, for the appellants.

      Mr. Thomas J. Middleton and Mr. John J. Crandall, for the respondents.
   Per Curiam.

The order under review herein should be affirmed, with costs. In addition to the reasons set forth in the opinion delivered by Vice-Chancellor Learning in the court of chancery, it seems to us that the evidence tending to show that Edmund B. Ross and Maria Moose were married in the year 1862 was not conclusive evidence that that marriage was still subsisting in the year 1873, when, according to the evidence, Ross contracted a marriage with Mary Cavanaugh; especially in view of the facts that the Moose woman married one Prehl in 1870, knowing that Edmund B. Ross was alive; and that from the time of his marriage to Mary Cavanaugh, and for fifteen years thereafter, until the death of Ross in the year 1888, Ross and the Cavanaugh •woman lived openly as man and wife, and Taised a family of children, without any claim being made by Maria Moose that she was his lawful wife.

For affirmance — The Chancellor, Chiee-Justice, Garrison, Swayze, Reed, Trenohard, Parker, Bergen, Bogert, Vroom, Green, Gray, Dill — 13.

For reversal — None.


text:
    Richard T. Dana, complainant, appellant, v. American Tobacco Company et al., defendants, respondents.
    [Argued December 5th, 1907.
    Decided March 2d, 1908.]
    A consolidation agreement was made by several companies in September, 1904, and complainant, a stockholder in defendant company, had full notice of the merger and of its terms as early as November 15th then next, and had investigated and fully resolved to dissent therefrom as early as January 7th, 1905, when he addressed a written protest to the president and directors of his company. Within two weeks he was sufficiently notified that his protest would be disregarded, but did not file his bill to avoid the merger until March 20th, 1905. Meanwhile the securities of the consolidated company had been daily changing hands in the open market, and the actual business of the company had been carried on in such a manner as to render a separation of the consolidated company into its constituent elements increasingly difficult. — Held, that complainant was guilty of laches precluding relief.
    On appeal from a final decree made by the former chancellor upon the advice of Vice-Chancellor Pitney, whose opinion is reported in 72 N. J. Eq. (2 Buch.) A4-

      Messrs. Coult & Smith and Mr. Grosvenor Nicholas (of the New York bar), for the appellant.

      Mr. Charles L. Corbin and Mr. Richard V. Lindabury, for the American Tobacco Compan}', respondent.

      Mr. Robert H. McCarter, attorney-general, and Mr. Bronson Winihrop (of the New York bar), for the Morton Trust Company, respondent.
   Per Curiam.

Upon the sole ground of the laches of the complainant herein, the decree nnder review should be affirmed.

The consolidation agreement which is under attack was made by the several companies in September, 1904. It was agreed to by a large majority of the stockholders of each of the companies, and was filed in the office of the secretary of state on October 20th. Full notice of the merger and of its terms came to the complainant at least as early as November 15th. Conceding that he was entitled to a reasonable time to investigate the matter and to determine whether his interests required that he should dissent, he had done this and become fully resolved to dissent at least as early as January 7th, 1905, when he addressed a written protest to the president and directors of the constituent company, of which he was a stockholder. He was not justified in assuming that this protest would be efficacious to stay the consummation of the merger. Within two weeks (or, at the utmost, three weeks), he was sufficiently notified that his protest would be disregarded. His bill of complaint was not filed until March 20th, 1905.

The fact that so much time had elapsed since the making of the merger agreement before he made up his mind to dissent, the magnitude of the interests involved in the merger, the fact that the securities of the consolidated company were daily changing hands in the open market, and that the actual business of the company was being carried on in such manner as to render a separation of the consolidated company into its constituent elements increasingly difficult — these and other peculiar circumstances disclosed in the evidence, and to some extent adverted to in the opinion of the learned vice-chancellor in this case and in that of Beling v. American Tobacco Co., 72 N. J. Eq. (2 Buch.) 32, were such as to call for the utmost diligence on the part of the complainant in making application to the court of equity, if he desired the very drastic relief for which he prays.

We think his delay in bringing the action is, under all the circumstances, sufficient to debar him from relief other than such as was offered to him in the court below, and which he there declined.

No other question is passed upon.

The decree under review should be affirmed, with costs.

For affirmance — The Chancellor, Chief-Justice, Garrison, Swayze, Reed, Trenohard, Parker, Bergen, Bogert, Vroom, Green, Gray, Dill — 13.

For reversal — None.


text:
    Mary E. Schlicher and William Schlicher, appellants, v. Charles H. Keeler et al., respondents.
    [Argued December 6th, 1907.
    Decided March 2d, 1908.]
    On appeal from a decree of the former chancellor advised by Vice-Chancellor Bergen, whose opinion is reported in 62 Atl. Rep. A

      Mr. Alan II. Strong, for the appellants.

      Mr. Charles C. Rommann, for the respondents, George W. Keeler and wife.

      Mr. John V. B. Wicoff, for the respondent, Charles Keeler.
   Per Curiam.

The decree under review herein will be affirmed, for the reasons expressed in the opinion delivered by Vice-Chancellor Bergen in the court of chancery.

For affirmance — The Chancellor, Chief-Justice, Garrison, Swayze, Reed, Trenohard, Bogert, Vroom, Green, Gray, Dill — 11.

For reversal — None.


text:
    Robert H. McCarter, attorney-general, respondent, v. Millville Gas Light Company, appellant.
    [Argued December 9th, 1907.
    Decided March 2d, 1908.]
    On appeal from an order made by the former chancellor upon the advice of Vice-Chancellor Learning, whose opinion is reported in 70 N. J. Fq. (0 Buck.) 767.

      Mr. Louis E. Miller and Messrs. Gashill & Gaslcill, for the appellant.

      Messrs. French & Richards, for the respondent.
   Per Curiam.

Upon an information filed by the attorney-general on behalf of the state and on the relation of the township of Landis, in the county of Cumberland, supported by affidavits, a preliminary injunction was issued to restrain the defendant from digging up any of the streets or roads in the township of Landis, from laying any pipes or conduits in any of such streets or roads, and from using the pipes already laid in that township. By its charter (P. L. 1867 p. lj.52) the appellant was empowered to lay down gas pipes for lighting purposes in the “streets, alleys, lanes, avenues and public grounds of the town of Millville and its vicinity.” At the time of the granting of this charter there was a village of Millville, situate within the township of’ Millville, which township included all the territory that is now comprised within the corporate limits of the city of Millville, the township of Landis and the borough of Vineland. By the act (P. L. 186U p. 180) Landis township was set off from the township of Mill-ville. By P. L. 1866 p. 116, the remaining portion of the township of Millville was incorporated as the city of Millville. In 1880 a portion of Landis township was incorporated as the borough of Vineland.

The contention of the appellant is that its franchise to lay down gas pipes in the streets, &c., of the “town of Millville and its vicinity,” confers the right to lay its pipes in and along any and all the streets, highways and public places of the township of Millville as it existed in the year 1857; and, failing this, that nevertheless the appellant may at least extend its pipes and mains to the present hamlet of Cloverdale, in the township of Landis, distant about two miles from the centre of the city of Millville.

The court of chancery held that the words “town of Millville and its vicinity” as used in the charter, referred not to the entire township of Millville as it then existed, but to the village known as Millville, and its vicinity; and that no part of the township of Landis as it now exists can reasonably be treated as being in the vicinity of the village of Millville within the meaning of the charter of 1857.

The reasons that led the learned vice-chancellor to this view are expressed in two opinions previously delivered by him, upon which his decision herein was based. Millville Gas Light Co. v. Vineland Light and Power Co., 72 N. J. Eq. (2 Buch.) 305, and Township of Landis v. Millville Gas Light Co., 72 N. J. Eq. (2 Buch.) 347.

We agree with his views, and the order under review will therefore be affirmed, with costs.

For affirmance — The Chancellor, Ciiiee-Justice, Garrison, Swayze, Reed, Trenciiard, Bergen, Bogert, Vroom, Green, Gray, Dill — 12.

For reversal — None.


text:
    William B. M. Burrell, appellant, v. Melbourne F. Middleton and Emily M. Middleton, respondents.
    [Submitted December 9th, 1907.
    Decided March 2d, 1908.]
    On appeal from an order made by the former chancellor advised by Vice-Chancellor Learning, whose opinion is reported in 72 N. J. Eq. (2 Buch.) 77k.

      Mr. Edward A. Armstrong, for the appellant.

      Mr. John W. Wescott, for the respondents.
   Per Curiam.

The order under review herein should be affirmed, with costs, for the reasons set forth in the opinion of Vice-Chancellor Learning.

For affirmance — The Chancellor, Chiee-Justice, Garrison, Swayke, Reed, Trenchard, Parker, Bergen, Bogert, Vroom, Green, Gray, Dill — 13.

For reversal — None.


text:
    Allen L. Ramsey, complainant, v. Perth Amboy Shipbuilding and Engineering Company, defendant. Willard P. Voorhees, receiver, &c., appellant, v. United States of America, claimant, respondent.
    [Submitted December 9th, 1907.
    Decided March 2d, 1908.]
    On appeal from a decree of the former chancellor advised by Vice-Chancellor Stevens, whose opinion is reported in 72 N. J. Eq. (2 Buck.) 165.

      Mr. Adrian Lyon and Mr. Eranlc P. McDermott, for the appellant.
    ■ Mr. John B. Freeland, United States attorney, and Mr. Harrison P. Lindabury, for the respondent.
   Per Curiam.

The decree under review will be affirmed, for the reasons set forth in the opinion delivered in the court of chancery by Vice-Chancellor Stevens.

For affirmance — The Chancellor, Chief-Justice, Garrison, Swayze, Reed, Trenchard, Parker, Bergen, Bogert, Vroom, Green, Gray, Dill — 13.

For reversal — None.


text:
    Daniel Steelman, executor of Philip M. Wheaton, deceased, complainant, appellant, v. Arabella Wheaton, defendant, respondent, and May Steelman, defendant, appellant.
    [Argued January 6th, 1908.
    Decided June 15th, 1908.]
    On appeals from an order of the court of chancery advised by Vice-Chancellor Bergen, whose opinion is reported in 72 N. J. Eq. (2 Buck.) 626.

      Messrs. Gaskill ■& Gaskill, for the appellant, Daniel Steel-man, executor, &c.

      Mr. Herbert A. Drake, for the appellant, May Steelman.

      Messrs. Bleakly & Btockwell and Mr. George H. Pierce and Mr. Gilbert Collins, for the respondent.
   Per Curiam.

These appeals are taken from an order of the court of chancery striking out the complainant’s bill for want of equity. We concur in the views expressed in the opinion of Vice-Chancellor Bergen, upon whose advice the order was made. But we must not be understood as conceding that the executor was entitled to relief in equity, even if his contentions and those of the appellant, May Steelman, as to the merits of the controversy, were well founded.

The order under review should be affirmed, with costs.

For affirmance — The Chancellor, Chiee-Justice, Garrison, Swayize, Trenchakd, Parker, Bogert, Vroom, Green, Gray, Dill — 11.

For reversal — None.


text:
    Julia C. Engelhardt, appellant, v. Rudolph Engelhardt, respondent.
    [Submitted January 6th, 1908.
    Decided June 15th, 1908.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning.

      Mr. George M. Bacon and Mr. G. Bore Cogswell, for the appellant.
   Per Curiam.

Appellant filed a bill for divorce on the ground of desertion. Respondent answered, denying that he had deserted his wife, and by way of cross-bill charged her with deserting him, and prayed for a decree of divorce against her.

Upon the hearing the case of the complainant was that she had left her husband, being driven to do so by his cruelty, as she claimed.

The learned vice-chancellor held that the evidence on the part of the complainant, considered in connection with the denials of defendant, was not sufficient to form the basis of an affirmative decree that defendant was guilty of cruelty such as to justify her in leaving his home.

We agree with this conclusion.

The decree under review, so far as appealed from by her, is affirmed.

For affirmance — The Chancellor, Chiee-Justice, Garrison, Swayze, Reed, Trenciiard, Parker, Bergen, Bogert, Vroom, Green, Gray, Dill — 13.

For reversal — None.


text:
    Jennie L. Taylor, complainant, appellant, v. Joseph N. Taylor, defendant, respondent.
    [Argued January 8th, 1908.
    Decided June 15th, 1908.]
    1. To entitle a wife to alimony on the ground of desertion by the husband, the desertion must have been without justifiable cause, and the husband must have refused and neglected to maintain and provide for the wife.
    2. When a wife separates herself from her husband and claims alimony she must justify the separation by proof of extreme cruelty on the part of the husband to the same extent as though she were suing for divorce •a mensa et thoro on the ground of extreme cruelty.
    3. A wife who has separated herself from her husband on account of his extreme cruelty may be entitled to alimony, though he used no physical violence toward her, but she must prove that his conduct was such as to place her life or health in danger, or to render her life one of such extreme discomfort and wretchedness as to incapacitate her to discharge the duties of a wife, or that the conduct of the husband was such as to bring about these conditions.
    4. Evidence considered, and held insufficient to show that the husband was guilty of such extreme cruelty toward his wife as to justify her in separating Herself from him and to maintain a suit for alimony.
    5. The failure of a husband to attempt to induce his'wife to return to him removes from her desertion the element of obstinacy, and such desertion is not a ground for divorce under a statute providing that to render a desertion ground for divorce the desertion must have been willful, continued and obstinate.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, who delivered the following opinion:
    This is a bill filed by the complainant, under the statute, for a decree for the payment of alimony. The husband denies the material allegations of the bill and files a cross-bill, in which he seeks a divorce from his wife on the ground of desertion. The law is well settled, in fact it is statutory, that to entitle a wife to alimony two elements must concur — first, the husband must, in the language of the statute, without any justifiable cause abandon his wife, or separate himself from her, and second, he must refuse or neglect to maintain and provide for her.
    It is well settled that a husband’s conduct toward his wife may be such as to justify the wife in separating herself from him; in such case the separation, having been occasioned by the husband, will be treated as his separating himself from her. The conditions, other than adultery, which will justify the wife in separating herself from her husband are those which our statute has provided as sufficient cause to entitle the court to grant to the wife a divorce from bed and board, namely, extreme cruelty on the part of the husband. This is necessarily so, for a wife cannot be justified in assuming the right to live-separate from her husband for causes which will not justify this court in granting to her the right to live separate from her husband. It follows, therefore, that when the wife, as in this case, separates herself from her husband and claims alimony she must justify that separation by proof of extremecruelt)^ upon the part of her husband to the same extent as she would be compelled to prove if she were suing for a divorce from bed and board on the ground of extreme cruelty.
    Now what constituted extreme cruelty on the part of the husband sufficient to justify a decree a mensa el thoro, or to justify the wife in a suit for alimony after separating herself from him, has been defined by our courts so frequently and with such accuracy that it should not be a question for dispute. I have before me a list of all, or nearly all, of the cases upon that subject, and it may be useful to briefly review the principal authorities and summarize what I think may be said to be-the settled condition of the law upon the subject at this time. The early cases were loath to hold that anything short of physical violence could amount to extreme cruelly, within the intention of the statute, but I think it fair to say that that idea has entirely disappeared, from the view of Ihe judges who are called upon to administer this branch of the law. One of the earlier cases .upon the subject, and the first utterance, I believe, of the court of errors and appeals, was the case of Close v. Close, 25-N. J. Eq. (10' C. E. Gr.) 526. Justice Van Syckel, in delivering the opinion of the court in that case (at p. 529) uses this language: “Without attempting to give a definition of legal cruelty applicable to all cases, I think it may safely be said that, where the husband has been guilty, or there is reasonable ground to apprehend that he will he guilty of any actual violence, which will endanger the safely or health of the wife, or where he had inflicted upon her any physical injury accompanied by such persistent exhibition of ill-feeling and opprobious epithets as will endanger her health, or render life one of such extreme discomfort and wretchedness as to incapacitate her to discharge the duties of a wife, the decree of separation should be pronounced. Whether, in a case of extreme hardship, in the absence of any actual or apprehended physical injury, she will be remitted for the redress of her grievances to the domestic forum, must be left for adjudication when the case presents itself.”
    In the case of English v. English, reported in 21 N. J. Eq. {12 C. E. Gr.) 519, Justice Scudder, in delivering the opinion of the court (as found on p. 585), uses this language: “The court must be satisfied that the wife is in danger of bodily harm if she goes back to him, or, to use the language in Close v. Close, 25 N. J. Eq. {10 C. E. Gr.) 529, that he has done and will continue to do such acts as will endanger her health or render her life one of such extreme discomfort and wretchedness as to incapacitate her to discharge the duties of a wife. It is not the question whether she will live more comfortably at her father’s house with a liberal allowance of alimony, but whether she is released from her duty as a wife by the extreme cruelty of her husband, and the reasonable apprehension that it will continue. The principle which must decide this case does not affect these parties alone; it is of the utmost importance to all that these bonds should not be lightly severed.” The other case which I desire to quote on 'the point now under discussion is Blade v. Blade, as reported in SO N. J. Eq. {8 Stew.) 215. In this case the vice-chancellor (Van Fleet) (at p. 221) uses the following language: “The question, then, presented' by this branch of the case is this: Was the complainant justified in separating herself from her husband ? The justification she offers is cruelty. She must show a case of extreme cruelty such as would entitle her to a decree of separation. The courts can know no middle ground — a wife must live with her husband, make his home hers and give him her society and services, unless she can show reasons valid in law, relieving her from her duty to him. To justify a decree a, mensa et thoro, actual physical violence need not be proved, but such conduct by the husband must be shown as will justify the court in believing that if he is allowed to retain his power over his wife, and she is compelled to remain subject to him, her life or health will be endangered, or that he will render her life one of such extreme discomfort and wretchedness as to incapacitate her to discharge the duties of a wife.”
    This view adopted by Vice-Chancellor Van Fleet has been since incorporated in other cases and is substantially, I believe, the accepted view to-day. In Weigand v. Weigand, reported in 41 N. J. Eg. (14 Stew.)' 202, the same vice-chancellor gives expression to the same views, namely, that personal violence is not the only form of extreme cruelty which will entitle a wife to separate herself from her husband. In Fred v. Fred, 67 N. J. Eg. (1 Robb.) 495, Vice-Chancellor Bergen expresses the same views. Other cases in point will be found collected in the opinion in McViclcar v. McVicTcar, reported in 46 N. J. Eq. (1 Diclc.) 490. The rule in this state may be considered settled as follows: That to justify a wife in separating herself from her husband physical violence need not be proved, but such conduct of the husband must be shown as will reasonably convince the court that her life or health was in danger, or her life rendered one of such extreme discomfort and wretchedness as to incapacitate her to discharge the duties of a wife, or that the conduct of the husband, if continued, would have brought about these conditions.
    The first question, therefore, that it becomes the duty of this court, at this time, to determine, is whether or not the separation of the complainant from her husband was justified according to the standard of the decisions to which I have just referred; whether the treatment of her husband was the cause of that separation, and if so, whether that treatment amounted to extreme cruelty within the meaning that has been attributed to it by the cases to which I have referred.
    The testimony upon the part of the complainant, if accepted in its fullness, might justify an affirmative conclusion. If all that is claimed in her behalf be accepted, it is probable that her treatment at her home may have been of such nature as to justify her, in the preservation of her health, to take the radical step which she took in leaving her home; but that testimony and that claim, in practically all of its essential features, is without corroboration. The witnesses called to corroborate her in these matters have failed entirely to disclose any such condition of affairs at her home as would entitle a court to make an affirmative finding to the effect of extreme cruelty, as claimed by complainant; and in view of the contrary and opposing testimony that exists in this case it is entirely manifest that no such finding can properly be made.
    Mrs. Nellie Howard testified that the husband used profane language to his wife. She nowhere claimed that she saw any physical violence or radical mistreatment. She saw marks on Mrs. Taylor’s forehead, but does not know what occasioned them, other than what Mrs. Taylor told her. Her testimony touching the incident when the wife stepped on her husband’s corn, is not sufficient to add any weight to the general claim upon the part of the complainant of a course of mistreatment by her husband. The only other misconduct on the part of the husband testified to by Nellie Howard, was when Mrs. Taylor had taken money from the pocket of her husband while he was asleep, the husband having exhibited extreme anger on ascertaining the fact. Mrs. Myers, called to corroborate the claim of cruelty, characterized the husband’s attitude as indifferent. The only profanity which she was able to testify to was some rather vigorous language used by the husband in the absence of the wife because of her absence. Mrs. Eay W. Cox testified to nothing of the nature of cruel treatment or conduct upon the part of the husband of that nature, but the force to be given to her testimony will be found in her statement that she had heard the husband say that he had made a mistake in his marriage and would like to get rid of his wife. She never heard him use any profane language to his wife. So far as the testimony of the witnesses goes, therefore, that embodies about all there is in the nature of corroboration. I do not find in the circumstances which have been developed in the progress of the investigation any features, corroborative in their nature, to justify an affirmative conclusion of cruelty on the part of the husband.
    On the other hand, opposed to this claim, there is the testimony of a large number of witnesses who were in positions to know, as nearly as can be known by any person other than the husband and wife, what the treatment of Mr. Taylor was toward his wife. These witnesses have shown and were in a position, as a rule, to show with a great deal of fullness that Mr. Taylor’s conduct toward his wife was not, to say the very least, of the nature claimed by Mrs. Taylor. The conviction brought to my mind is not that Mr. Taylor was a model husband. I think the proofs justify a conclusion very much to the contrary. I cannot help believing, under all the evidence, that Mr. Taylor fell very far short of the standard which the good of society demands of a husband in his treatment of a wife. But it would be a misjudgment upon all the testimony in this case for this court to treat as proven the averments of the bill that Mr. Taylor was cruel, in the sense of the statute, toward his wife.
    If that be true^ — and that is my conclusion — then Mrs. T'ajdor was not justified in separating herself from her husband; and that fact will bar her from the relief which she seeks. The actual separation occurred under peculiar circumstances and conditions. It is perfectly plain that Mrs. Taylor may have shrunk from the disagreeable anticipations of meeting her husband when he came from the hospital. I can conceive that after he was taken to the hospital as the result of what was, to say the least, a grave indiscretion on her part, she might well have dreaded meeting him when he was well enough to resume his place at his home; but it cannot be overlooked that the conduct of Mrs. Taylor in repeating what her husband had said to her, or what she claimed her husband had said to her, in the nature of a slander, to the very people that it is claimed the husband slandered, was a grave wrong on the part of the wife to the husband. I can find no justification for it. You may call it an indiscretion, but I think that term will not properly define it. I cannot conceive of a wife, to whom a husband has communicated a slander about another, going to the person slandered and there repeating it, unless she, lacks either ordinary intelligence or has no interest in her husband, or affection for him or care for his welfare. No sensible person could have expected, in repeating the slander to those against whom it was directed, anything but trouble. Perhaps Mrs. Taylor could not, and did not, anticipate that the sons of the supposed slandered person, to whom she repeated the story, would resort to the extremity that they did, or would do the very thing that they did, but she must have known, if she had any sense, that trouble would follow what she was doing. The fault was, therefore, hers, and it is a fault that it is difficult to excuse; and I say it was natural, very natural, that she should shrink from meeting her husband on his return from the hospital where he had been as the consequence of her wrong-doing, but that fact, necessarily, does not excuse her from leaving her home and deserting her husband.
    The second element necessary in the procurement of alimony is the disposition upon the part of the wife, if the husband’s conduct is such as to permit her to live with the husband, to resume the relations of husband and wife. I do not find that Mrs. Taylor has ever exhibited any desire to resume marital relations with her husband. I am not prepared to say that if the husband had shown any disposition upon his part toward a reconciliation that Mrs. Taylor would not have met him half way, but the letter from Judge Wescott, or the letter dictated by Judge Wescott, cannot be treated or regarded as a letter giving accurate expression to the true feelings of Mrs. Taylor at the time that letter was penned. The subsequent letters written by Mrs. Taylor, as well as her subsequent conduct, show that that letter was not a true embodiment of her true feelings at the time it was written.
    My conclusion, therefore, is that Mrs. Taylor was not justified in separating herself from her husband and has not since that time shown any proper desire upon her part to resume her relations with him as a wife, and her claim for alimony must be denied. I have no doubt at all but that her physical condition was probably all that is claimed. She might have been a very weak woman physically, and I have no doubt the attentions she received from her husband were much less than a wife in her condition would crave and should receive, but I cannot conclude that her husband’s conduct was such as would justify her in this breach against her matrimonial vows and against society itself.
    Now the second branch of this case is entirely independent and is practically the same as though it were an independent suit, in that the husband claims a divorce against his wife by reason of this desertion. The law touching the desertion which entitled the husband to a decree of divorce against his wife is defined quite as accurately as the law touching alimony. The subject has been before the courts as frequently, or more frequently, than almost any other breach of the law, and I have before me, at this time, an outline of all, or nearly all, of the leading cases upon the subject, and I will refer to them briefly in order to define what I consider to be the settled law of this state that the facts in this case may be applied to the law. The statute provides that the desertion must be willful, continued and obstinate. In the case of Taylor v. Taylor, 28 N. J. Eq. (1 Stew.) 207, Vice-Chancellor Van Fleet lays down the rule that under this statute three elements must concur to constitute a desertion willful, continued and obstinate — first, cessation of cohabitation; second, an intent in the mind of the defendant to desert, and third, that the separation was against the will of the complainant. In that case Vice-Chancellor Van Fleet reviews four earlier decisions which fully sustain the view taken by the learned vice-chancellor, and, among others, the ease of Bowlby v. Bowlby, 25 N. J. Eq. (10 G. E. Gr.) U06, which was a decision rendered by Vice-Chancellor Dodd, and afterwards affirmed by the court of errors and appeals. Since the decision of Vice-Chancellor Van Fleet in Taylor v. Taylor, the view there so tersely defined has been followed by our courts in a great many eases, and the view always laid down and which will be found to underlie and form the ground work of all cases is that to entitle the husband to a divorce upon the ground of desertion, the separation must be against his will, and that a failure upon his part to attempt to induce his wife to return makes the desertion of the wife willful and continued, but destroys the element of obstinacjr, and I think the views expressed by the courts in the various cases may be said to entirely concur in that feature which requires, on the part of the husband, some effort to induce the wife to return, else the obstinacy required by the statute does not exist.
    I am not prepared to say that no case can be conceived where the husband could not procure a divorce upon the ground of desertion without having made some effort to procure the return of his wife, but I am prepared to say that such a case must be an extreme one, if it can in fact exist, and that this.is not that kind of a case. It is undoubtedly true that where it is perfectly clear that any attempt upon the part of the husband' to induce his wife to return would be unavailing, he would be excused from that duty, provided his heart was right, but if the going away of the wife was to any degree caused, or provoked by him, if he can in any sense be said to be chargeable with misconduct, even though not in such degree as to justify her conduct, then there is upon him the most powerful duty to use his utmost effort to get her to return, and upon that the authorities are entirely at rest.
    The views which I have expressed are what I consider the settled law of this state, and will be found embodied in the following cases: Rittenhouse v. Rittenhouse, 29 N. J. Eq. (2 Stew.) 27 Jj; Trail v. Trail, 32 N. J. Eq. (5 Stew.) 231; Hankinson v. Hankinson, S3 N. J. Eq. (6 Stew.) -66; Loux v. Loux, 57 N. J. Eq. (12 Dick.) 561; Van Wart v. Van Wart, 57 N. J. Eq. (12 Dick.) 598; Hall v. Hall, '60 N. J. Eq. (15 Dick.) 1/.69, which is a decision of the court of errors and appeals; Edwards v. Edwards, 69 N. J. Eq. (3 Robb.) 522, a decision by our present chancellor; Ojserkis v. Ojserkis, 62 Ail. Rep. 113, a decision rendered in this court by the late Vice-Chancellor Grey, and Meier v. Meier, a decision by this present chancellor, reported in 68 N. J. Eq. (2 Robb.) 9. In Van Wart v. Van Wart, Vice-Chancellor Steyens gives what to my mind is a fair statement of the summary of the authorities in the following language: “It seems plain to me that the desertion in this case, though it may have been willful, was not 'obstinate.’ It was not persisted in against the effort or influence of the husband to bring it to an end. Obstinate persistence on the part of the wife was wanting because the advances or concessions which the husband, as a just man, ought to have made to terminate it, were also wanting. Such advances and concessions were the prerequisite of any obstinate persistence against them.” Again he says: “In considering what effort or concession must be made in any given case, the conduct of the parties toward each other must be considered. It is obvious that more effort and concession will be required of one whose conduct actually produces or contributes to produce the desertion than of one who is blameless. If the party deserted is not in fault, and effort to induce the deserting party to return would probably prove unavailing, it need not be shown. In general it may be said that that desertion to De adjudged obstinate, which has resisted such effort or concession as the party alleging such desertion ought, under the particular circumstances of the case, to have made to bring it to an end.”
    The effort upon the part of the cross-complainant in this case to bring the desertion of his wife to an end does not appear to have been made at all. I cannot believe that his conduct has been so blameless or so praiseworthy as to exonerate him from any attempt whatever, or even from a desire for his wife to return to him, and he has testified that he has no such desire. While I have already stated that the letter written at the instance of Judge Wescott does not, to my mind, give a true expression of the feelings or sentiments of the wife, and while I think the husband was justified in regarding that letter as a letter with a purpose other than the purpose expressed on its face, yet the duty was thereupon the part of the husband to take no chance that his refusal to meet any proffer upon the part of his wife to terminate the desertion should be the thing that stood in the way of reconciliation, and I am obliged to conclude that, under the law, as I understand it, and as I have undertaken to define it, I am unable to advise a decree in favor of the cross-complainant.

      The relations between these parties are, indeed, unfortunate, and it might, perhaps, be better for both if they were separated, but that is a question which I am not permitted to deal with; I am obliged to apply the law as I conscientiously believe it exists, and under the law as it exists I do not feel justified in awarding alimony or in awarding to the defendant a decree of divorce on the ground of desertion.
    A decree will be prepared accordingly. There will be no costs taxed, but I will allow a counsel fee to the plaintiff of $50.

      Mr. Spencer Simpson, for the appellant.

      Mr. Frederick A. Bex, for the respondent.
   Pee Curiam.

Complainant filed a bill against her husband under the statute for a decree requiring him to pay alimony. He filed a cross-bill praying for divorce on the ground of desertion. By the final decree both bills were dismissed. Prom so much of the decree as dismisses the complainant’s bill she appeals. Defendant has not appealed.

We concur in the views expressed by Vice-Chancellor Learning so far as they relate to the dismissal of complainant’s bill, and the decree in that respect will therefore be affirmed.

For affirmance — The Chancellor, Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Bogert, Vroom, Green, Gray, Dill — 12.

For reversal — None.


author: Embry, V. C.

text:
    Mahlon Pitney, Chancellor.
    John E. Emery, Frederic W. Stevens, Eugene Stevenson, Lindley M. Garrison, Edmund B. Leaming, James E. Howell and Edwin E. Walker, Vice-Chancellors.
    Aaron Van Houten et al. v. Mary V. H. Stevenson et al.
    [Decided November 1st, 1907.]
    In a suit brought by two eestms que trust or beneficiaries under a will, each separately entitled to the whole or part of the income of the one-sixth part of the testatrix’s residuary estate which was devised and bequeathed in six equal parts, the one-sixth part thereof to each of three of the defendants (one a married woman) absolutely, who were executors and trustees under said will, the issues of fact on the hearing were — first, whether a certain bond (which, with the mortgage securing the payment thereof, constituted part of said residuary estate) was under the circumstances under which the bond was given, a bond given by the said married woman executrix as original debtor, solely or jointly with, her husband, to the testatrix or was given by her as security for her husband; secondly, whether the mortgaged premises were a sufficient security for the debt, and whether the trustees had been guilty of neglect in not foreclosing; and thirdly, whether the decrees of the prerogative court, made on the final account of the executors, and the intermediate account of the trustees, were adjudications to the effect that these securities were worth the appraised value contained in the official inventory, and that the undivided interest therein belonging to the trustees was then properly held by the trustees in the due performance of their duty and in the exercise of their sound discretion, answers having been filed by certain of the defendant executors and trustees setting up said decrees as bars to the present suit, so far as it attempted to show that the mortgage was not a sufficient security, — Held, (1) that such decrees were not final adjudications that the bond and mortgage in question were, as against the complainants, worth the appraised value thereof, or that they were at the time of the passing of the accounts properly held by the trustees in the due performance of their duties; (2) that so far as the complainants seek a decree to compel the executors to foreclose, relief must be denied; (3) and that so far as the bill seeks a present decree against the married woman executrix and trustee defendant in relation to her liability on the bond by reason of the circumstances of the original loan, relief must be denied, because the question of her liability in such bond is prematurely raised; and that so far as the bill seeks equitable relief by charging the devises or bequests received by her with the amount of the bond, because of assurances to the testatrix that said defendant’s share would be so liable, and that the testatrix relying on these assurances refrained from changing her will, the prayer must be denied, because of failure to prove any such representations or assurances by that defendant.
    Heard on bill, amended bill, answers, replications and proofs.
    The complainants are two cestuis que trust or beneficiaries under the will of Catherine Yan Houten, being each now separately entitled to the whole or part of the income of the one-sixth part of residuary estate of the testatrix, which was devised and bequeathed in six equal parts. To each of the three of -the defendants, Aaron Yan Houten, Mrs. Milly Stevenson, wife of Preston Stevenson, and Rachel Yan I-Iouten, the one-sixth of the residue was given absolutely and in fee-simple. These three residuary devisees and legatees were also executors of the will, and were empowered to sell and improve the real estate. The remaining one-half of the residue was not expressly devised or bequeathed to the executors, as trustees, but the income only on the three other sixths of the residue is to go to the respective beneficiaries of those shares, for a period fixed by the will, and as to the income on one of these shares (the share of John) it is directed that one-half remain in the hands of the executors, to be paid out by them. One-half also of the income of the share invested for George is to be paid to two of the executors, Mrs. Stevenson and Miss Yan Houten, as special guardians and trustees of the defendant Catherine Post Yan Houten, the daughter of George. These provisions, so far at least as the personal estate of deceased is concerned, constituted the executors, trustees' of the remaining one-half of the residue, and it is not disputed that they are such trustees. The testatrix’s estate consisted mainly of real estate, improved and unimproved, in the city of Paterson) the personal estate, according to the inventory, amounting to the sum of $20,270.97. In this inventory, which was signed by all of the executors, was included the following item:

      Nominal Actual Value. Value.

    Bond and mortgage of Preston Stevenson and wife on premises in Franklin township, Bergen county, N. J., and in Easthampton, L. I.........................$10,000 $10,000
    The bond thus referred to was a joint and several bond given by Preston Stevenson and Mary Stevenson to Catherine Yan Houten, dated January 26th, 1894, for $10,000, payable on demand with interest from date, and was originally secured by two mortgages, bearing the same date, given by Preston Stevenson and his wife Mary, on lands the title to which stood in the name of Preston Stevenson, one of the mortgages being on three tracts of land in Bergen county, and the other on one tract in Easthampton, Long Island. On October .24th, 1894, the mortgage on the New Jersey lands was canceled, and on December 26th, 1894, another mortgage on these lands was executed by "Stevenson and wife to Mrs. Yan Houten, as security for the bond in question. This latter mortgage contained an express covenant, on the part of both Stevenson and his wife, for the payment of the bond. No express covenant for the payment of the bond was contained in the first New Jersey mortgage, and the Long Island mortgage, reciting that Stevenson and wife were justly indebted in the sum secured by the bond, contained an express covenant by Preston Stevenson to pay this sum. It was proved on this hearing that interest on the entire bond had been paid to June 22d, 1891, but whether paid to November 1st, 1891, before the signing of the inventory (April 1st, 1898), does not clearly appear.
    The testatrix died about June 22d, 1891, and the will was proved in the prerogative court on September 28th, 1891, by all of the executors. On March 14th, 1898, and before the filing of any inventory, Mr. Harding, the complainants’ solicitor, on behalf of George, Abram and John Van Houten (beneficiaries respectively entitled to income on three residuary shares), sent letters to each of the three executors, stating in substance that the settlement of the estate had been unduly delayed; that in their opinion the executors had been derelict in their duty, in their failure to collect the moneys due to the estate from Preston Stevenson, and that this neglect affected their interest in the estate, and that the object of the letter was to urge the executors toward a settlement of the estate at once, and also to notify her, as one of the executors, that should any neglect in not collecting these debts due to the estate, cause loss to the same, his clients would hold her personally responsible. To this letter Mrs. Stevenson and Miss Van Houten, on March 24th, 1898, each separately replied, in substance, that there had been no undue delay, that the executors understood their duty and would discharge it, and did not desire to avoid responsibility for their acts. Whether a similar letter was sent to Aaron Van Houten, the other executor, does not clearly appear. The inventory was filed very shortly after this letter (on April 8th, 1898), and besides this liability of Preston Stevenson on the bond, showed also that he was indebted to the estate on two promissory notes, amounting to $1,148.91, which were appraised at their face value. On October 25th, 1898, the executors filed their fitnal account in the prerogative court, charging themselves with the total amount of the inventory, $20,270/97, and also with certain increases on the inventory, including “interest on the bond in question to November 1st, 1897, and interest on the Preston Stevenson notes to April 1st, 1898,” the total charges being $21,529.95. Allowances were claimed for $6,592.40, as paid out for debts, funeral expenses, &c. In this account also they prayed allowance. for distribution made on April' 1st, 1898, on account of each sixth share of the sum of $408.05 (being $2,448.30 in all), as to which one share was distributed to each of the executors individually as legatees, and the same amount distributed to themselves as trustees in severalty, under the will of decedent, as principal fund for the benefit, respectively, of Abraham, George and John Yan Houten. After deducting these items, the balance remaining in the hands' of the executors, or with which they would be chargeable, would be $13,713.49, as appears by their account. As to this amount the executors’ account contains the following further claim of credit and statement:
    “1S9S, June 1. Balance of cash ($2,663.49) and unliquidated securities transferred, undivided and undistributed, to these accountants individually as legatees (one-half) and as trustees (one-half), under the will of decedent, but subject to the final decree upon this accounting, and to all lawful charges for costs, expenses and commissions that may be adjudged thereon, $13,713.49.”
    The following are the securities transferred as above stated, and thereafter held undistributed by these accountants, one-half interest thereon in their own right in equal shares in common, and one-half interest thereon as trustees, with the several valuations thereof as appraised in the inventory filed herein, the same being their-actual value at the. time of such transfer:
    “1. Bond and mortgage of Preston Stevenson.............. $10,000
    “2. Bond and mortgage of Cornelius Breen................. 550
    “3. Bond and mortgage of Mary A. Green................. 300
    “4. Balance unpaid on bond of Sarah Jackson.............. 200.
    “$11,050”
    On this date, October 25th, 1898, the defendants, as trustees, also filed in the prerogative court ah account called “Trustees’ Intermediate Account,” in which account they charged themselves, as trustees, with the funds which had come to their hands as real estate, and with reference to which they made the following declaration:
    “These accountants further submit that the surplus personal estate of the deceased, which has come to their hands as a part of a trust estate, and which remains in the form of unliquidated securities, owned in common with the individual legatees under said will, consists of bonds and mortgages upon real estate, and is described in the schedule hereto annexed, marked Schedule A.”
    Schedule A contained a list of
    “Securities transferred to these accountants from their account as executors, and now held by them as trustees, in common with their individual interests therein.
    "1. Bond and mortgage of Preston Stevenson.............. $10,000
    “2. Bond and mortgage of Cornelius Breen.................. 550
    “3. Bond and mortgage of Mary A. Green................... 300
    “4. Balance unpaid on bond and mortgage of Sarah Jackson. ... 200
    "$11,050
    “of which one-half belongs to individual owner’s share of trust estate in bonds and mortgages held by these accountants.”
    Ill this account they also charged themselves, under date of April 1st, 1898, with the amount of $1,224.16 as the trust estate share of surplus personalty distributed among parties in in-'terest, as shown under this date in the executors’ account. And also under date of June 1st, as transferred to these accountants as trustees, from their account as executors, the trust estate share in the cash surplus of the personalty remaining undivided and undistributed in these accountants’ hands, as shown by their executors’ account under this date, subject to final decree upon said account, as therein stated, the total trust share being $1,331.75. Final decree was made upon both accounts on the same date, April 16th, 1889. On the executors’ account the final decree directed, among other things, that they should be charged with the amount transferred to- themselves as residuary trustees one-half, and legatees in fee one-half, undivided and undistributed cash, $2,663.49, and securities as certified, $11,050, subject to the expenses and allowances of this accounting, total $13,713.49; and it was decreed that the account aforesaid be finally settled and allowed, and the accountants after making the deductions and payments hereinafter directed, were directed in due course “to distribute among themselves as residuary legatees in fee the equal shares in severalty, the undivided one-half part of the balance remaining of said sum of $13,713.49, with all income accrued on said one-half part of said sum to the date of such distribution, and to continue to hold the other half part as trustees under the will of said deceased, for the purpose of the several trusts therein expressed, together with all other sums already distributed and transferred t» themselves as such trustees, as set forth in the account aforesaid. A commission was allowed, $305.30, besides counsel fee. In the decree made on the same day, on the intermediate trustees’ account, it was directed that the accounts be passed and that the trustees be charged, among other things, with the balance of cash, $1,333.75, and securities, $5,525, transferred to said accountants from their account as such executors, being the shares of said trust estate in the undistributed surplus of personalty remaining in the hands of these accountants, as shown by their said account, but subject to the deductions and allowances for their commissions, costs and expenses on their accounting as executors, total $6,856.75. It was further expressly ordered and adjudged by the decree that the intermediate account of the parties as so audited and stated, be allowed, and the accountants are hereby directed, after deducting the allowances and payments hereinafter directed, being the commissions and counsel fees, to continue to hold said balance of funds remaining in their hands, with all income and increase thereon, for the purpose of the several trusts under the will of said decedent. Previous to the allowance of these accounts, and on the 18th day of March, 1899, the bill in this cause had been filed by the complainants, Abram, George and John Van Houten, against the defendants, executors and trustees, and also against Mary Stevenson, individually, and Preston Stevenson, praying a declaration or adjudication that Mary Stevenson, by reason of the grounds set out in the bill, was personally responsible upon the bond in question. It also sets-out that these mortgages, given to secure the bond, were not first mortgages on the property, and at the time of filing the bill were not worth more than the amount of the liens prior to the mortgages given to the testatrix, and that if they were sold under foreclosure they would not bring more than these prior liens; but the complainants charge that if they had been foreclosed within a reasonable time after testatrix’s death, something would have been realized from a sale thereof, and that if suit had been brought on the bond and judgment obtained within a reasonable time after the death of testatrix, the full amount of the judgment could have been satisfied by execution against the property of Preston Stevenson, but that at the present time this amount could not be realized. They therefore pray that Mary Stevenson may be declared to be held liable on the bond, and that the executors, by reason of their failure to take proper proceedings to collect the bond, may be held liable to' make good the loss. They set up also that Mary Stevenson now denies her liability on the bond and judgment obtained within a reasonable time charging that the debt was a debt of Mary Stevenson, and that she received the benefit of the money advanced by the testatrix upon the bond. They also charge that the bond and mortgages were given upon an assurance of the defendant Mary Stevenson that her share in the estate would be liable,, and they pray a decree that the share is so liable for the amount of the bond. Separate answers have been filed by Mary Stevenson and Rachel Van Houten, the executors and trustees, and by Preston Stevenson. The defendant Aaron Van Houten has filed no answer, nor has any decree pro confesso been taken against him. The answer of Mary Stevenson sets up> substantially that the bond and mortgage in question were not given for her individual debt or obligation to the testatrix, but. that she signed the same only as security for her husband. It denies, however, that up to the present time she has ever claimed that she was not liable for the payment of the bond. She further insists that the bond and mortgage considered as a bond of Preston Stevenson alone, when secured by the mortgages upon his property, is a. sufficient security and that no loss will result to the estate from the proper control of the security, but that it will ultimately be realized. She also denies that she, as trustee or executor, has failed in her duty in relation to the collection of the bond. Rachel Van Hputen, the other executor and trustee, .takes substantially the ■same ground, alleging that the bond is an obligation only of Preston Stevenson, and that Mary Stevenson signed the same .as security. The defendant Preston Stevenson files an answer to substantially the same effect. On the hearing before me, the issues of fact were — first, whether the bond and mortgage, under the circumstances under which it was originally given, was a bond1 given by Mary Stevenson as original debtor, solely ■or jointly with her'husband, to the testatrix, or whether the •same was given by her as security for her husband; second, whether the mortgaged premises were a sufficient security for the debt, and whether the trustees had been guilty of neglect in not foreclosing, and third, whether the decrees of the prerogative court, made on the final account of the executors, and the “Intermediate Account of the Trustees” were adjudications to the effect that these securities were worth the appraised value contained in the official inventory, and that the undivided interest therein belonging to the trustees was then properly held by the trustees in the due performance of their duty and in the exercise of their sound discretion. In' all of the answers these decrees were set up as bars to the present suit, SO' far as it •attempted therein to show that the mortgages were not a sufficient security. The complainant George Yan Houten died after filing the bill and before the-cause was brought to hearing, and it was understood that an order of revivor of the suit in the name of the two remaining complainants should be signed ■as of the date of hearing, and the cause proceeded with by consent. All the other parties interested in the estate being parties •as defendants.

      Mr. John W. Harding, for the complainants.

      Mr. Osborne and Mr. Preston Stevenson, for the defendants.
   Embry, V. C.

(after statement).

The decrees made in the prerogative court on April 18th, 1899, passing the executors’ final account and the trustees’ first intermediate account, were not final adjudications, .that the bond and mortgage in question were, as against the complainants, worth the appraised value thereof, or that they were at the time of the-passing of the accounts properly held by the trustees in the due-performance of their duties. If the decrees are not such iilnal adjudications, then they do not, even if regularly obtained,, create, in favor of any of the defendants, as executors or trustees, a bar to an inquiry or adjudication in reference to the value of the securities, or the liability of any of the defendants, either as executors or trustees, or individually, for the amount thereof,, when such inquiry properly rises for adjudication. I take the-status of these decrees and their effect to be as follows: By the-joint inventory, signed by all executors, including Mrs. Stevenson ('the executrix who had joined in the bond to testatrix), the-executors described the security in question and appraised its-value as follows: "Bond and mortgage of Preston Stevenson and wife on premises in Franklin township, Bergen county, N. J., and in Easthampton, L. I., nominal value $10,000, actual value $10,000,” and this amount is part of the total appraisement,. $20,270.97. In the final account the executors, filing a joint account, charge themselves with the entire inventory, and pray no allowance or deduction on account of the debt secured by this-mortgage. The Executors’ and Administrators’ statute (Revision of 1874 § '8; Gen. Stat. p. 1426) provides that

“the appointment of a debtor as executor or executrix shall not, unless-otherwise expressed in the will, be construed to discharge such executor or executrix from the payment of the debt, but the said debt shall be considered assets in his or her hands, to be accounted for in the same-manner as any other part of the personal estate.”

The inventory charged all the executors prima, facie with the-appraised value of this debt as assets of the estate, and the continuance of this charge in the final account, without praying any allowance, made them all responsible (prima facie at least) for this amount as so much assets of the estate collected and in hand for distribution of the estate. In Weyman v. Thompson, 52 N. J. Eq. (7 Dick.) 263 (Court of Errors and Appeals, 1894), the-question of the effect of a decree on the joint final account of' executors was specially considered and decided, and the rule declarecl that the matters conclusively adjudicated by such decree are exclusively the receipt of assets and disbursements in behalf of the estate, and that the balance is in the hands of all or one of. them. It is not, however, an adjudication that each of the executors has the balance, or as to which one of them has it. Chief-Justice Beasley p. 269; Justice Dixon p. 273. The defendant Mrs. Stevenson, although a married woman, is bound to the complainants as executrix, by this charge of the debts as assets, and, as between herself and her co-executors, may be primarily liable, and the defendant trustees, by their own act, as evidenced by the decrees on the accounting, further accepted, or purported to accept, as trustees, and as part of the trust estate, and at the full value thereof, this security passed from themselves as executors.

The decree entered on passing the executors’ final account, so far as it purported to be a decree of distribution, was not a matter properly included in the decree on the account. The jurisdiction of the prerogative court over accounts (of executors at least) is purely statutory, and, except by statute, the prerogative court has no authority to order distribution by executors under a will. Such distribution was purely a matter of chancery jurisdiction. In re Eakin, 20 N. J. Eq. (5 C. E. Gr.) 481 (Williamson, Ordinary, 1858). The constitutional and statutory jurisdiction of the prerogative court over executors extended only to the probate of wills, and the settlement of their accounts, and (prior to 1872 at least) did not include any power to order a distribution. Lord Cornbuy’s Instruction, Leam. & Spi. (Reprint) 639; Prerogative Court act of 1846; Gen. Stat. p. 1030. By the Orphans Court act (Revision of 1874; Gen. Stat. p. 2357 § 5) the ordinary was vested with the powers of the surrogate and orphans court, in relation to the settlement of the accounts of executors and trustees, but this section would not, I think, include the power to order distribution by executors. Ordinary v. Barcalow, 36 N. J. Law (7 Vr.) 15, 20 (Supreme Court, 1872, Chief-Justice Beasley). The one hundred and forty-sixth section of the Orphans Court act (Gen. Stat. p. 2389) expressly gives to the orphans court power to order distribution of intestate’s estates only, and although section 151 (Gen. Stat. p. 2391) also authorizes the orphans court, where an account of executors has been allowed, to make a decree of distribution under a will, “upon the application of any party in interest,” the constitutionality of this provision has been questioned and decision thereon reserved by the court of errors and appeals in Adams v. Adams, 46 N. J. Eq. (1 Dick.) 298 (1889). And in this case it was held that, under this section 151, a decree for distribution could not be made merely upon a notice of settlement of accounts, but that actual notice of the application for such decree must be given to the parties interested. No such notice appears (by the record or otherwise) to have been given in this case, and even if it should be held that the powers in relation to the administration of estates of testators and the settlement of accounts of executors, given by the fifth section (which was merely an amendment of the law of 1869, P. L. ¶. 1Í02), included a grant of power to the ordinary to order distribution under a will by the one hundred and fifty-first section (which was an amendment of a subsequent law of 1872), there was, under the Adams Case, no authority to make a binding decree of distribution in the absence of actual notice of special application thereof. The directions in this decree passing their final accounts, that the executors as trustees under the will take over from themselves as executors, and by way of distribution of the estate, the security in question (or rather an undivided interest therein) as payment or discharge of the balance coming to them as such trustees on distribution, is therefore no decree or adjudication as against persons other than the trustees interested in the estate — fipsi, that the security was then of the value at which it was turned over or distributed to the trustees, or second, that the trustees were (as against other persons interested) authorized to accept it as assets realized and properly held in trust. The only effect of this recital in the decree is the effect derived from the fact that the trustees procured it, and that it operates as an admission on their part, that they received this security from themselves as executors, in the settlement of the estate, as assets of the estate realized to the full amount, without any claim for diminution or depreciation, by reason of the executrix not being bound, or otherwise; and that as trustees they received the same as representing, in their judgment, the value thereof, as stated in the accounting. Whether this action of the defendants as trustees, in accepting from themselves as executors this security as a full discharge of their duty in relation to the collection of the assets of the estate (so far as they included a claim against one of the executors, inventoried and accounted for as such), binds them, and each of them, for the full amount so charged against them as taken over, it is not necessary now to decide. In my judgment, the taking over of the security to themselves as trustees in this manner for the full value thereof, makes them all prima facie liable for the entire amount, and until a rebate or allowance from this charge of the full amount has been made on proceedings directly and properly involving that issue, all of the trustees must, so -far as •the complainants are concerned, be held chargeable with the value at which it was taken over. Such question cannot properly arise until such rebate or allowance is claimed on an accounting as trustees, and probably only after proceedings taken to realize upon the mortgage and bond. Any or either of the trustees, other than Mrs. Stevenson, may foreclose the mortgage and bring suit upon the bond against her in this court. Petty v. Young, 43 N. J. Eq. (16 Stew.) 654, 658 (Court of Errors and Appeals, 1887), and if, in the judgment of either of them, this course is advisable, in the interest of the estate, it is their duty to institute such proceedings at the peril of being held liable for the amount of any loss on the special ground that they have failed to exercise proper judgment as trustees. Proceedings to realize the security can, in my judgment, be brought only by some person entitled to recover thereon and receive the money, and the proceedings should, I think, be first for the foreclosure of the mortgage, for the reason that the language of the act of March 23d, 1881 (P. L. p. 184 § 1), relating to mortgages, seems to cover all proceedings of any character to collect the debt. Proceedings cannot, in my judgment, be maintained merely for the purpose of declaring Mrs. Stevenson’s liability on the bond in advance of, and independent of, any suit to recover against her on the bond or mortgages (one of which contains a covenant for payment on her part) by a person entitled to recover, such as the other executors would be, and no case is here made by the bill or proofs which entitles complainants to a decree that Mrs. Stevenson now pay the amount of the bond.

in. the present aspect of the case, the decision of the question, ' whether due regard to the interests of the estate, and the parties interested therein, other than the executors, requires the taking of proceedings to realize the security by proceedings to foreclose, and subsequent suit on the bond by the other executors in this court, is a matter for the sound judgment and discretion of the other executors, and each of them, and of them alone. The court will not undertake to control or advise the action in this respect by a direction in this suit that they must now foreclose. Nor is such decree necessary for the protection of the complainants. As the accounts now stand, all of the defendants’ trustees are, in my judgment, prima facie chargeable to the complainants for the full value of the bond and mortgages, as assets of the estate admitted to be of that value in their hands. When the trustees, or either of them, by their accounts, pray allowance for any portion of the assets represented by this debt, as not realized, or as assets for which they are not jointly responsible, the question may arise as to their right to any allowance. This question, when so presented, would, I think, directly involve the effect of the inventory and decree on account, as concluding Mrs. Stevenson and the other executors as to the collection of this security by them as assets, and if it be not so conclusive, then it would further involve the responsibility of the trustees, or either of them, for any loss resulting from the failure to collect the debt by judicial proceedings, including a suit against Mrs. Stevenson upon the bond.

So far, therefore, as the complainant seeks a decree to compel the executors to foreclose, relief must be denied, because the court will not undertake to control' or direct the judgment of the executors in the foreclosure of the mortgage. Especially must this direction be denied, in view of the fact that the bill ■alleges that Aaron Yan Houten, one of the executors, desires to foreclose, and this executor, called as complainant’s witness, says that the reason no attempt had been made to foreclose or collect the mortgage was that his co-trustees refused to do anything in the matter. He does not seem to have been advised, or to have supposed that he could himself foreclose the mortgage without their concurrence, and his failure to bring such suit heretofore is not a sufficient reason for the court to relieve him of his duty and responsibility as trustee in reference to the security by directing and deciding for him what he shall do as to foreclosing. Nor has there been any such demand on the executors to foreclose, or to pursue the remedy on the bond, as would authorize the court to take the administration of the estate out of the hands of all of the executors by reason of failure to perform their duties in this respect. The letter of March 14th, 1898, written by the solicitors of the complainants on their behalf, was a complaint of delay in settling the estate, including the collection of claims against Preston Stevenson, and did not specially mention the security now in question. This letter, written before any inventory was filed, was followed by the filing of the inventory on April 6th, 1898, and the appraising of the debt as a bond and mortgage of Stevenson and wife at the full value. No other application to the executors appears to have been made by complainants to realize this security, before filing the bill (March 18th, 1899), or before the hearing (October, 1903).

And so far, also, as the bill seeks a present decree against Mrs. Stevenson, in relation to her individual liability on the bond, by reason of the circumstances of the original loan, relief must be denied. Until the trustees properly pray allowance for the amount for which they have charged themselves for this security, or by some other proceeding to obtain a judgment or decree upon the bond, directly raising the question of the validity of the bond, brought by some person who is entitled, either in law-or equity, to recover the amount of the bond, the question of Mrs. Stevenson’s liability on the bond, by reason of the circumstances under which the original loan was made, is prematurely raised. The denial of this relief at this time is, therefore, without prejudice.

So far as the bill seeks equitable relief, by charging the- devises or bequests received by Mrs. Stevenson under the will with the amount of the bond, because of assurances to the testatrix that her share would be so liable, and that the testatrix, relying on these assurances, refrained from changing her will, the prayer must be denied, because of failure to prove any such representations or assurances by Mrs. Stevenson. Relief of this kind is based on the personal fraud of the devisee, or of the person through whom he receives the estate, and, in the absence of such fraud, the statute of wills protects the devisee. I have lately considered this question, with an examination of the authorities, in Powell v. Yearance, 73 N. J. Eq. (3 Buch.) 117 (1907). The complainant, however, as a beneficiary entitled to a portion of the income on the fund held in trust, would seeiu to be entitled to receive interest on this security from the trustees, unless they discharge themselves from such liability by the proof of facts relieving them. As the evidence now stands, at the time the cause was brought to hearing, no interest had been paid since December, 1897. The bill was filed March 18th, 1899, and charges that interest was due and payable from July 27th, 1897, and, under the prayer for general relief, the complainants may be entitled to a decree for interest. As, however, such liability of the defendants, or either of them, for interest alone, as distinct from principal, was a matter not argued by counsel, I will hear counsel on this point, and also-on the question of the order of liability for interest, as between the defendant executors.


author: Emery, V. C.

text:
    Orlando B. Griffen et ux. v. Caroline Cooper et al.
    [Decided February 3d, 1908.]
    1. The agreement being for a loan to be repaid at a fixed time, the borrower could not, as part of the transaction, deprive himself of the right to redeem from the mortgage, in the form of a deed, given as security, even by an express agreement for that purpose.
    2. Defendant, in a suit to redeem from a mortgage in the form of a deed, is liable for the costs; his agent having refused to accept tender of the amount due, the right to redeem being denied, and the premises being thereafter conveyed to another.

      S. The mortgagee in a mortgage in the form of a deed will be required to account only for the rents actually received, having had no actual possession, except so far as given by payment to him by the tenant of a month’s rent, on the condition that it should be paid hack to him if he had to pay the mortgagor; and he having, because of notice from the mortgagor, refused to pay more.
    On bill to redeem.

      Mr. Benjamin, W. Ellicott, for the complainants.

      Mr. William G. Davenport and Mr. Eugene Cooper, for the defendants.
   Emery, V. C.

The answer and proofs of defendants showed that the transaction upon which the defendant Mrs. Cooper received the deed in question was a loan of money and not a sale of the property, and that the deed made by complainant to her, although absolute in form, was really a mortgage to secure the payment of $150 in three months, according to the terms of a note given at the same time by the borrower. The agreement being for a loan of money to be repaid at a fixed time, the borrower could not, as part of the transaction, deprive himself of the right to redeem, even by an express agreement for that purpose. Vanderhaize v. Hugues, 13 N. J. Eq. (2 Beas.) 244 (Chancellor Green, 1861).

The questions reserved at the hearing were as to costs and the liability of the grantee to account for rents. Ordinarily the mortgagor must pay the mortgagee’s costs on a bill to redeem, but the mortgagee may, by misconduct, lose the benefit of this rule, and not only lose his own costs, but be made to pay costs. This was done in Lozear v. Shields, 22 N. J. Eq. (7 C. E. Gr.) 447 (Vice-Chancellor Dodd, 1871); S. C. on appeal, 23 N. J. Eq. (8 C. E. Gr.) 509, 511 (1872). The refusal of defendant’s agent in the present ease to accept tender of amount due, and the denial and resistance of the right to redeem, including the subsequent conveyance of the premises by the grantee to her son-in-law, are sufficient to bring the case within the exception to the usual rule, and the defendants must pay the costs. As to the liability of the mortgagee Mrs. Cooper and her grantee Hall to account for rents of the premises, the equities of the situation are somewhat complicated. The property in question is a double house, one-half of which was, and still is, occupied by the complainants. At the time of the execution of the deed, December 5th, 1906, the other half was rented to a tenant of the complainants, who continued to pay rent to them up to April 15th, 1907. After this date the tenant received notice from the agent or attorney of the defendant Hall to pay rent to him as the owner of the property. The complainants demanded rent of the tenant after being informed by the tenant of the service of the notice, and then notified the tenant not to pay rent to anybody but themselves. This notice not to pay rent was given twice to the tenant by Mrs. Griffen, who usually collected the rent, and the tenant said to her, on one of the visits, that he would wait till he found out who was the owner and would then pay. He did subsequently pay to Mr. Davenport, as agent of the defendants, one month’s rent, but the payment was made on the understanding that if he was obliged to pay complainants it should be paid back to him. No payments of rent have since been made to anyone, and the tenant in December, 1907, removed from the premises. So far as relates to the legal rights of the parties to the rents, under an absolute deed, intended as a mortgage, our law is settled that at law the grantee is entitled to recover to the exclusion of the grantor, and if the grantor brought an action at law for the rent, the deed would bar recovery from his tenant, and he would not be allowed to show by p»aro.l evidence that the deed, absolute on its face, was intended as a mortgage. Abbott v. Hanson, 24 N. J. Law (4 Zab.) 493 (Supreme Court, 1854). And so far as the right of the grantee to recover subsequent rents at law is concerned, attornment is unnecessary in the case of an absolute deed. 1 Gen. Stat. p. 875 109. At the hearing my impression was that the payment constituted an attornment, and that this was important, but, on further reflection, I conclude that the matter of attornment is not involved, and that if it were, the payment here being conditional and not an absolute recognition of Mr. Davenport’s right to collect for the grantee, it probably hafe not the effect of an attornment. But the right of a mortgagor whose debt is unpaid, to an account for rents and profits from the mortgagee, is purely an equitable and not a legal right, and the question, therefore, is, what is the extent of the liability of the mortgagee to account in equity? 2 Jones Mort. § 1116. Ordinarily a mortgagee in actual possession under a formal mortgage is bound to account for what he has, or, without fraud or willful default, might have received from the time of taking possession. Demarest v. Berry, 16 N. J. Eq. (1 C. E. Gr.) 481, 483 (Chancellor Green, 1864); Fish. Mort. *491, 672 (Form of decree); 2 Jones Mort. § 1123. By .several courts it has been held that where an absolute deed is given, the grantee is made the agent of the mortgagor or grantor for the collection of the rents, and is only chargeable for rents on the same grounds that an agent would be. 2 Jones Mort. § 1117. If this rule is taken, then the grantor, having stopped the payment of the rent to the grantee, his agent, could not equitably hold him responsible for failure to collect. Nor would the result be different on applying the ordinary rule, charging a mortgagee in possession. For assuming the mortgagee to have been put in possession by the tenant’s conditional payment of one month’s rent, his failure to receive the subsequent rent was not due to fraud or willful default, but to the refusal or failure of the tenant to pay, induced by the grantor’s notice. And as to charging the grantee or mortgagee for rents, it must be borne in mind that he is charged only by virtue of actual possession, and that in this case no actual possession is claimed otherwise than by the receipt of one month’s rent. This payment was of such a conditional character that, in my judgment, it did not amount to such an absolute recognition of the grantee’s right, as to be considered as of itself putting her in actual possession, making her chargeable for the subsequent rents held back by the tenant by reason of the dispute as to title. If complainants, on receiving notice that the defendants intended to exercise their legal rights under the deed, desired or intended to hold the defendants accountable for the actual possession and rents of the premises as applicable to their mortgage, it wqs their duty to assist rather than obstruct the mortgagee in the collection of the rents in order to make the estate productive. Fish. Mort. *491, 492. Having obstructed the collection of the rents, they cannot now charge the defendants with them as due to willful default. On the whole case substantial equity will be worked out by charging defendant with the amount of rent actually received, and by requiring defendants to allow the use of their names, or that of either of them, in an action at law, or other legal proceedings, to recover the back rents, if that be necessary.

A decree declaring the deed to be a mortgage, and for redemption and an account and for a reconveyance on payment, will be advised, the form of decree to be settled on notice if not. agreed on.